Bodozian v. Total Holdings USA CA2/3

Filed 2/5/21 Bodozian v. Total Holdings USA CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LAILA BODOZIAN, B285141
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC539230
v.
TOTAL HOLDINGS USA, INC.
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lia Martin, Judge. Affirmed.
The Law Offices of Cynthia A. de Petris and Cynthia A.
de Petris for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith and Hellar-Ann Hancock
for Defendants and Respondents.
_________________________
After a jury found defendants’ conduct was not a
substantial factor in causing plaintiff’s injuries, plaintiff moved
for a new trial on the ground of jury misconduct, offering her
attorney’s declaration concerning a post-trial conversation with
a juror as the sole supporting evidence. (See Code Civ. Proc.,
§ 657, subd. (2).)1 The trial court denied the motion because
it was not supported by an affidavit with admissible evidence
of juror misconduct. (See § 658; Evid. Code, § 1150.) Plaintiff
contends the court abused its discretion. We disagree and affirm.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff sued defendants for motor vehicle negligence,
alleging defendant Frankie Lee Cade hit her elbow with his
passenger side mirror while she walked on a public street.
Defendants denied they caused the accident and disputed
plaintiff’s alleged injuries.
A jury returned a special verdict, finding, by an 11 to one
majority, Cade was not a substantial factor in causing harm to
plaintiff. The trial court entered judgment in favor of defendants.
Plaintiff filed a motion for new trial on the ground of jury
misconduct. Her only supporting evidence was the declaration
of her attorney, Joseph Faccone. Faccone declared juror number
six told “all counsel that the jurors considered the intent of
defendant [Cade] as a factor in determining liability, causation
and damages.” Faccone claimed, without explanation, that “a
Declaration from [juror number six] was unattainable.” He said
juror number six also reported juror number ten “argued that
since there was no evidence presented that defendant [Cade]
intentionally struck plaintiff with the vehicle he was operating,
1 Statutory references are to the Code of Civil Procedure,
unless otherwise designated.
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liability and damages should not be awarded in Plaintiff’s favor”
and “several other jurors were of the same opinion.” According
to Faccone, juror number six also “informed counsel, that the
jury as a whole did not believe enough ‘forensic’ evidence was
presented by plaintiff to [unequivocally] find defendant [Cade]
negligen[t].”
Defendants objected to Faccone’s declaration, arguing
the statements attributed to juror number six were “hearsay
and inadmissible.” Defense counsel also represented that juror
number six neither met with defense counsel nor made the
alleged statements to defense counsel.
The trial court denied the motion for new trial, concluding
the claim of jury misconduct was not supported by an admissible
affidavit as required under sections 657, subdivision (2), and 658.
DISCUSSION
Under section 657, subdivision (2), a verdict may be
vacated on a motion for a new trial establishing juror misconduct
that materially affected the substantial rights of a party.
(Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 57;
Stokes v. Muschinske (2019) 34 Cal.App.5th 45, 52 (Stokes).)
“A party moving for a new trial on the ground of juror misconduct
must establish both that misconduct occurred and that the
misconduct was prejudicial.” (Ovando, at p. 57.) The
“misconduct may be proved by the affidavit of any one of
the jurors.” (§ 657, subd. (2).)
A trial court “generally undertakes a three-step inquiry
in ruling on a new trial motion based on juror misconduct. First,
the court determines whether affidavits supporting the motion
are admissible. Second, the court determines whether the facts
establish misconduct. Third, the court determines whether any
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misconduct resulted in prejudice.” (Stokes, supra, 34 Cal.App.5th
at p. 52; Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345.)
The trial court determined plaintiff’s new trial motion
failed at the first step—the supporting affidavit did not proffer
admissible evidence of juror misconduct. Section 658 and
Evidence Code section 1150 establish this threshold requirement.
Under section 658, “[w]hen the application [for new trial] is
made for a cause mentioned in the first, second, third and fourth
subdivisions of Section 657, it must be made upon affidavits.”
(Italics added.) Evidence Code section 1150 provides: “Upon an
inquiry as to the validity of a verdict, any otherwise admissible
evidence may be received as to statements made, or conduct,
conditions, or events occurring, either within or without the jury
room, of such a character as is likely to have influenced the
verdict improperly.” (Evid. Code, § 1150, subd. (a), italics added.)
And, as relevant here, Evidence Code section 1200 directs:
“Except as provided by law, hearsay evidence is inadmissible.”
(Id., § 1200, subd. (b).)
We review the trial court’s decision to deny a new trial
motion, and its rulings on the admissibility of evidence, for abuse
of discretion. (Stokes, supra, 34 Cal.App.5th at p. 55.) “ ‘ “ ‘The
determination of a motion for a new trial rests so completely
within the court’s discretion that its action will not be disturbed
unless a manifest and unmistakable abuse of discretion clearly
appears.’ ” ’ ” (Whitlock v. Foster Wheeler, LLC (2008) 160
Cal.App.4th 149, 159.)
The only evidence plaintiff submitted in support of her
new trial motion was the declaration of her attorney concerning
a conversation he had with a juror about discussions the jury had
during deliberations. The relevant statements are inadmissible
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hearsay. As our Supreme Court explained under nearly identical
circumstances, “[t]he sole evidence of the alleged misconduct was
the declaration of a defense investigator that purports to relate
a conversation with the juror. It is settled, however, that ‘a jury
verdict may not be impeached by hearsay affidavits.’ ” (People v.
Williams (1988) 45 Cal.3d 1268, 1318, abrogated on other
grounds as noted in People v. Diaz (2015) 60 Cal.4th 1176, 1190;
see also Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th
1666, 1670, 1672 [where “only evidence” submitted in support of
new trial motion “consisted of two declarations from [plaintiff’s]
attorney’s investigator concerning purported statements and
thoughts of two jurors during their deliberations,” declarations
were “inadmissible hearsay” and trial court “did not abuse its
discretion in denying [plaintiff’s] new trial motion”].)
Plaintiff concedes her attorney’s declaration “is hearsay.”
Nevertheless, she argues the trial court was obliged to overlook
this infirmity because, in plaintiff’s telling, “the hearsay rule
was created to avoid lies in the courtroom” and her “attorney’s
declaration [was] made under penalty of perjury.” Plaintiff
misunderstands the hearsay rule. The hearsay rule is not
concerned with the credibility of the in-court witness—in this
case, plaintiff’s attorney who proffered his sworn declaration.
The hearsay rule concerns the credibility of the out-of-court
declarant—in this case, the juror who told plaintiff’s attorney
about discussions that supposedly occurred during deliberations.
(See Evid. Code, § 1200, subd. (a) [“ ‘Hearsay evidence’ is
evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the
truth of the matter stated.”].) Because plaintiff did not offer a
sworn declaration by the juror, from which the trial court could
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judge the juror’s credibility concerning the supposed discussions,
the trial court properly denied the motion for new trial. (See
Evid. Code, § 1150, subd. (a) [“inquiry as to the validity of a
verdict” requires “admissible evidence”]; People v. Bryant (2011)
191 Cal.App.4th 1457, 1468 [“properly executed juror affidavits
are required to establish jury misconduct”]; see also People v. Cox
(1991) 53 Cal.3d 618, 697 [where “defendant offered to submit
the unsworn statement of [juror] and the affidavit of a defense
investigator recounting her statement to him,” trial court “did
not abuse its discretion in according little, if any, credence to
assertions the declarant was unwilling to verify”], disapproved
on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421
& fn. 22.)
Because plaintiff failed to offer an affidavit with admissible
evidence of jury misconduct, the trial court did not err in
summarily denying the new trial motion. None of plaintiff’s
other arguments addresses this dispositive issue. We need not
discuss them.
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DISPOSITION
The judgment is affirmed. Defendants Frankie Lee Cade,
Barry Controls Aerospace, and Hutchinson Aerospace are
entitled to costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, J., Acting P. J.
DHANIDINA, J.
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