Opinion
NOT TO BE PUBLISHED
APPEALS from an order and judgment of the Superior Court of San Diego County, No. GIN050921 David J. Danielsen, Judge. Order reversed; judgment affirmed.
HALLER, Acting P. J.
Clemente Castro sustained serious injuries when an aluminum rod he was holding while working on his employer's roof contacted a high voltage power line owned and operated by San Diego Gas & Electric Company (SDG&E). Castro sued SDG&E, alleging the utility was negligent in various ways, including that the height of its power lines violated Public Utility Commission (PUC) rules and SDG&E failed to properly inspect and maintain the lines. After a lengthy trial, the jury found SDG&E was negligent, but the negligence was not a substantial factor in causing Castro's injuries. The court thus entered judgment in SDG&E's favor.
Castro's wife also brought a loss of consortium claim. For ease of reference, we refer only to Mr. Castro in this opinion. Because Mrs. Castro's claim is derivative of Mr. Castro's claims, our analysis and conclusions apply to both plaintiffs.
Castro moved for a new trial and a judgment notwithstanding the verdict (JNOV), arguing the jury's negligence finding necessarily compelled a finding that SDG&E was the cause of his injuries. The court determined the evidence supported the jury's no-causation finding and denied the motions. Castro then moved for reconsideration of his new trial motion based on newly discovered evidence of jury misconduct. The court concluded Castro presented a factual basis for a reconsideration, and the submitted juror declarations reflected prejudicial juror misconduct. The court thus vacated the judgment and ordered a new trial.
SDG&E appeals from the new trial order, contending the court had no jurisdiction to grant a new trial because it entered the order beyond the statutory deadline, and the evidence did not support prejudicial juror misconduct. We agree with the jurisdictional argument, and thus reverse the order granting a new trial.
Castro filed a protective cross-appeal challenging the sufficiency of the evidence to support the jury's no-causation finding and contending the record establishes prejudicial jury misconduct. We conclude substantial evidence supports the jury verdict, and reject Castro's contentions of juror misconduct. We thus affirm the judgment as it was initially entered.
FACTUAL SUMMARY
A. The Accident
In 2005, Castro worked for Yong Chin Chong, who operated a farming business in Fallbrook. Chong's farm had five connecting greenhouses located underneath SDG&E power lines in a utility easement. Each greenhouse was about 10 feet tall, 20 feet wide, and 180 feet long, and was constructed of steel frame with aluminum trim. The roofs were covered with a "visqueen" type of plastic sheeting that required replacement every few years. Each greenhouse had a structural 9-inch gutter running lengthwise, designed to divert water and support materials and equipment necessary to maintain the plastic roofing material.
On the morning of October 25, 2005, Chong's wife told Castro and three other workers to replace the plastic on the greenhouse roofs. Castro had worked for Chong for about 20 years, and had previously performed this task several times. To replace the plastic roofing, the workers were required to climb ladders to the greenhouse roofs, stand in the narrow side gutter area, remove the 12-foot aluminum metal rods used to stabilize the plastic, and pull the existing plastic off the building. After removing the aluminum rods, the workers would place the rods on the upper ledge of the adjacent greenhouse (which was several feet above the greenhouse roof where the men were standing) until they were ready to put the rods back on the roof. The workers would then roll the new plastic sheeting over the roof, and replace the aluminum rods by lowering each rod from the adjacent upper ledge onto the new plastic on the roof. The workers then hammered the rods in place using a rubber mallet.
On the morning of October 25, the four men had climbed to the top of the third greenhouse roof, removed the plastic and the aluminum rods, placed the rods on the adjacent upper ledge, and rolled the new plastic over the roof. As the men were straightening the plastic and getting ready to reinstall the 12-foot metal rods, Castro was in the corner of the greenhouse in the gutter area near the ladder. Castro then reached up and grabbed one of the metal rods. The rod somehow made contact with the overhead SDG&E high voltage lines, which were about nine feet above the greenhouse roof. None of the coworkers saw the actual incident, but seconds later they heard Castro fall off the roof and then saw him burning and injured lying on the ground.
Castro was transported to the hospital where he was found to have second and third degree burns to his left arm and trunk, lung injury, and brain injury. He was in the hospital for nine days, and then transferred to a rehabilitation facility. At the time of trial, he had not yet returned to gainful employment. Chong's workers' compensation carrier paid Castro's medical and rehabilitation costs and other employment-related benefits.
B. Events Occurring After the Accident
SDG&E was notified of the incident shortly after it occurred. About one month later, on November 22, an SDG&E representative went to Chong's property and determined that the vertical distance between the top of the third greenhouse roof and the power line was 8 feet 8 inches. SDG&E also determined that the greenhouse was in violation of its power line easement, which barred the property owner from placing structures underneath the power lines. The SDG&E representative told Chong that the wire needed to be 12 feet above the roof for safety reasons.
The next day, Jeff Sykes, an SDG&E representative, wrote to Chong stating that it "has come to our attention that you have constructed... buildings under our overhead... distribution line, " and that the buildings violate SDG&E's easement and violate "California Public Utilities Commission General Order 95 regarding clearances from energized electrical facilities." Sykes said that SDG&E "[t]herefore... will be immediately de-energizing the lines" and the "lines will remain de-energized until a permanent solution has been implemented." That same day, SDG&E turned off the electricity on the wires. Shortly after, SDG&E advised Chong that before it would re-energize the lines, Chong must either "remove all structures from underneath the line" or pay to reroute the lines around his structures. After Chong paid to reroute the lines, SDG&E restored full power to the property in January 2006.
C. Lawsuit
Several months later, Castro sued SDG&E, alleging that its high voltage lines above the greenhouses were negligently operated and maintained. Castro sought compensatory damages (including pain and suffering and emotional distress), and punitive damages. Chong's workers' compensation carrier intervened in the action and sought reimbursement from SDG&E for the employment benefits paid to Castro and the medical costs paid for Castro's care.
Castro's Case
At trial, Castro presented several theories for recovery on his negligence cause of action, including (1) the height of the wires violated PUC orders and thus constituted per se negligence; (2) SDG&E was aware of a prior accident with the same high voltage wires and nonetheless permitted a known, dangerous condition to continue to exist; (3) SDG&E did not use properly trained inspectors to meet applicable inspection requirements; and (4) SDG&E did not have an "official program" to identify dangerous situations caused by property owners.
With respect to the height of the high voltage wires, Castro presented evidence that the measurement from the top of the third greenhouse roof to the SDG&E wires was 9 feet 2 inches. Castro further presented evidence that the applicable PUC rules required a 12-foot minimum vertical clearance between the roof and the high voltage wires. Castro additionally relied on Sykes's November 23 letter acknowledging that the high voltage wires above Chong's greenhouses violate this PUC rule. Castro's expert, Raymond Enama, a former SDG&E employee, opined that the lack of adequate clearance created an "extremely hazardous condition."
Although SDG&E had initially measured the distance to be 8 feet 8 inches, an investigator for Chong's workers' compensation insurer later calculated the vertical distance to be 9 feet 2 inches. At trial, Castro generally relied on the 9-feet 2-inch figure as the correct measurement.
With respect to Castro's claim that SDG&E knew or should have known of the dangerous condition of the wires, the evidence showed that SDG&E originally installed the electrical power lines in 1980 when Chong's predecessor gave SDG&E an easement for the right to build and maintain the power lines. The easement prohibited the property owner from "erect[ing], plac[ing] or construct[ing]... any building or other structure... within the limits of said easement and right of way." Three years later, Chong purchased the property.
The next year, in November 1984, Chong retained a manufacturing company to build and connect the five greenhouses. Despite that he was on notice of the "no build" covenant in the easement, Chong contracted for the buildings to be placed directly underneath the wires. Several months later, in February 1985, an employee of the manufacturing company, Charles Friske, was working on the construction of the greenhouses, and was standing on a ladder installing a 24-foot aluminum "extrusion" to hold up a fiberglass wall. When Friske raised the 24-foot piece of metal, it touched the overhead lines (or was close enough to the wire that the electricity "arc'd" to the metal). Friske fell to the ground, and sustained burn injuries. In January 1986, Friske sued Chong and SDG&E. The case settled about three years later.
In 1992, SDG&E added a third high voltage wire to the wires above the greenhouses. When this addition was originally designed, SDG&E planned to construct a wood pole top extension to create about three feet in additional clearance to about 12 feet between the buildings and the wires. However, this extension was later deleted by an SDG&E construction supervisor. Castro's expert, Enama, testified that SDG&E violated its duty of care by allowing the electrical wires to remain after the greenhouses were built underneath the wires. Enama also opined that SDG&E's inspection program was inadequate because the inspectors were not adequately trained and did not conduct detailed or compete inspections that would have disclosed the violation.
Castro did not present any evidence showing the manner in which the metal rod came in contact with the high voltage wires. There were no eyewitnesses to the accident, and Castro said he did not remember the event. Castro said he believed he was kneeling or squatting down and was about to reinstall the first aluminum rod onto the new plastic covering when suddenly his body felt paralyzed. The next thing he remembered was his wife was visiting him in the hospital. He said that "what I felt was that my body was paralyzed, and I wanted to let go of the aluminum, but I was unable to." When defense counsel asked Castro how he could "possibly get [the rod] in the air" from a squatting position when he was intending to place it down, Castro responded, "Well, I don't know. I don't know what happened there."
To counter a claim that his actions were unreasonable, Castro presented expert evidence on the concept of "inattentional blindness." Dr. Michael Morse, an expert in electrical engineering and biomedical engineering, testified that "inattentional blindness" occurs when "human beings become blind to obvious objects, " by "focus[ing]" their "processing power" on an important immediate task, and ignoring other factors in the environment. Dr. Morse opined that this concept applied in this case because Castro may have been so focused on the multi-step task of replacing the plastic roofing that he inadvertently forgot about the power lines. Dr. Morse testified that entities should design systems to protect against inattentional blindness to ensure safe conditions, and specifically that utilities should "design the problem away by... taking the power lines out of the proximity to the person."
Defense Case
In its defense case, SDG&E claimed that the 12-foot clearance standard was inapplicable based on a newer PUC standard that required only an 8-foot clearance above buildings that had "non-walkable" surfaces. During trial, however, the court ruled that the 8-foot standard was not applicable, and instructed the jury that the 12-foot standard governed as a matter of law.
In responding to Castro's cross-appeal, SDG&E contends this ruling was error, and the applicable standard should have been an 8-foot clearance if the roof was determined to be "unwalkable." However, we do not reach this issue because we conclude substantial evidence supported the verdict even assuming the 12-foot standard applied.
SDG&E additionally produced evidence to establish that its inspection program was reasonable and that SDG&E had regularly inspected Chong's property and these inspections satisfied its standard of care. SDG&E also presented facts supporting that both Castro and Chong knew about the existence of the wires and acted unreasonably and/or failed to take protective measures. This evidence showed that the wires were plainly visible, and the utility pole from which the wires hung bore a yellow, "high voltage" warning sign. Additionally, SDG&E argued that Chong was aware of the danger posed by the high voltage wires based on the Friske incident and lawsuit. The evidence also showed Chong had repeatedly warned Castro and his other workers to be careful about the overhead wires. Castro and another worker testified they were aware of the SDG&E wires above the greenhouse buildings before they performed the roofing work on the day of his accident.
SDG&E also called an expert, Dr. Peter Orner, who holds masters and doctoral degrees in mechanical engineering, is a board certified internal medicine physician, and is experienced in evaluating the biomechanics of injury. Dr. Orner was retained to evaluate Castro's injuries and the surrounding circumstances to determine "what happened mechanically... to cause those injuries."
Based on an examination of the 12-foot aluminum rod, Dr. Orner determined: (1) the rod came in contact with the overhead electrical wire at 13.25 inches from one end of the rod; (2) Castro was holding the rod at about 6 inches from the opposite end of the rod, and (3) the rod hit the overhead wire at about a 60 degree angle. Based on these measurements and the location of Castro's burn injuries, Dr. Orner opined that Castro could not have been squatting or on his knees when the accident occurred, and instead he must have been standing up on the roof holding the aluminum rod up in his left hand when the contact took place. Dr. Orner further testified that the wind could not have caused the rod to move up in this way, and instead it "would have to be somehow using both hands, or jerking the rod, or doing something to intentionally lift it up, get it moving, up in the air, to an angle of ultimately about 60 degrees." Dr. Orner concluded that it would have been a "volitional" movement in the sense that it would require more than merely moving the left hand, it would require moving the left forearm and possibly the right hand assisting as well.
Consistent with these opinions, during closing argument, defense counsel asserted that the most reasonable explanation for the accident was that Castro was standing in the narrow roof gutter area holding down the plastic with one foot and holding the rubber mallet in his right hand, when he reached for the metal rod with his left hand and then lost his balance. Counsel posited that when Castro lost his balance, he "fell backwards" and the momentum of Castro's body raised the metal rod in the air, causing Castro to lose control over the rod, which then hit the overhead wire. Based on this proffered scenario, defense counsel argued that although "[t]here may have been negligence on [the] part of SDG&E... it was not a substantial cause of this accident." (Italics added.) Counsel then said: "What was the cause of the accident? A roof that was not walkable. A gutter that was not safe to stand on. A job that was not done properly. And forcing a young Hispanic farmworker to stand on 9 inches of a gutter, trying to hold onto two things 10 feet up in the air and he loses control and he falls backwards, that, ladies and gentlemen, is an accident."
In his rebuttal, Castro's counsel did not respond to this argument, other than to suggest there was no direct evidence supporting this version of the events. Counsel instead focused on the evidence showing SDG&E was negligent and the extent of Castro's injuries.
D. Verdict and Postjudgment Proceedings
The jury returned a special verdict finding SDG&E was "negligent, but that the negligence was not a "substantial factor in causing [Castro's] injuries." Following the instructions on the verdict form, the jury did not reach issues of damages or comparative negligence by Castro and/or Chong.
Castro thereafter moved for a JNOV and a new trial, primarily challenging the sufficiency of the evidence to support the no-causation finding. The court denied both motions. On the JNOV motion, the court found "substantial evidence supports the jury's determination that [SDG&E's] negligence... was not a substantial factor in causing the harm to plaintiffs." On the new trial motion, the court conducted a review of "all of the evidence presented in the trial, " and concluded "the jury should not have clearly reached a different... verdict." Castro then moved for reconsideration based on newly submitted evidence of juror misconduct. As explained in detail below, the court granted the motion and ordered a new trial.
SDG&E appeals from the court's new trial order. We conclude the court did not have jurisdiction to grant the new trial, and thus reverse this order. Castro filed a protective cross-appeal challenging the sufficiency of the evidence to support the jury's no-causation finding and reasserts his jury misconduct arguments. We conclude substantial evidence supports the jury's no causation finding. We further conclude that even if we could properly reach the jury misconduct issue on Castro's cross-appeal, the admissible evidence does not establish prejudicial juror misconduct.
DISCUSSION
I. Appeal: New Trial Order
A. Chronology of Postjudgment Proceedings
The jury returned its verdict on April 1, 2008. Six weeks later, on May 14, Castro timely filed a notice of intention to move for a JNOV and a new trial. Two weeks later, Castro filed an amended notice of intention to file these motions. Although both notices identified jury misconduct as a ground for the new trial motion, Castro did not present any juror misconduct arguments in his memorandum of points and authorities, or include any of the required supporting documentation. Instead, Castro raised arguments primarily challenging the sufficiency of the evidence to support the jury's no-causation finding.
During the next month, it was discovered that a judgment had not been entered on the jury verdict, and, on June 17, the court belatedly entered the judgment. The next day, on June 18, the court entered a formal order denying Castro's JNOV and new trial motions. Eight days later, on June 26, SDG&E served and filed a notice of ruling on the judgment on the jury verdict.
One week later, on July 3, Castro moved for reconsideration of his new trial motion. The sole basis of the reconsideration motion was claimed juror misconduct, supported by the declarations of two dissenting jurors (Juror N and Juror F). Castro also submitted the declaration of his counsel's law clerk, Jorge Barraza, who stated that "it was not until after the Court denied" the new trial and JNOV motions "that I was able to have some of the persons who served as jurors provide us with a declaration." Barraza said he "was able to contact" three jurors, and "[o]f the three contacted, only [two] were willing to provide us with the declarations which are filed concurrently with Plaintiffs' motion for reconsideration."
The court held a hearing on the reconsideration motion on August 11. At the hearing, the court said that Castro's counsel "clearly documented good faith... to bring the evidence to the court as timely as humanly possible" and that "this is an appropriate motion for reconsideration, based upon new evidence and new circumstances brought to this court." The court also found the admissible evidence supported that the jury had improperly engaged in a "compromise verdict" without a "careful" consideration of the evidence, and that jurors had made two improper remarks during deliberations (one pertaining to the availability of worker's compensation and one stating that " 'everyone just wants to sue' "). At the conclusion of the hearing, the court said it would promptly prepare an order granting a new trial and a written statement of reasons.
The next morning, on August 12, SDG&E's counsel (William Calders) sent an e-mail to Judge Danielsen and Castro's counsel, objecting to the jurisdiction of the court to grant a new trial. Citing Code of Civil Procedure section 660, Calders stated the "60-day time frame" for ruling on a new trial motion had passed. After the court asked Castro's counsel to respond to the argument, Castro's counsel claimed that SDG&E's objection was untimely, and suggested that the court enter the new trial order "and allow the jurisdictional issue to be sorted out during the appeal when both parties have ample time to properly address the question with the deliberation the issue deserves."
The next day, on August 13, the court granted the new trial motion on the basis of prejudicial juror misconduct without mentioning the timeliness issue, apparently agreeing to defer the issue for consideration by this court.
B. Analysis
Code of Civil Procedure section 660 provides: "[T]he power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court."
All unspecified statutory references are to the Code of Civil Procedure.
"The time limits of section 660 are mandatory and jurisdictional, and an order made after the 60-day period purporting to rule on a motion for new trial is in excess of the court's jurisdiction and void." (Siegal v. Superior Court (1968) 68 Cal.2d 97, 101; Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 518; Jones v. Sieve (1988) 203 Cal.App.3d 359, 369; see Van Beurden Ins. Serv., Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56, 64.) Failure to enter an order determining the new trial motion within the 60-day period deprives the court of power to rule on the motion. (Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1451.) Jurisdiction to grant a new trial after the 60-day time limit cannot be conferred by "consent, waiver, agreement, or acquiescence" of the parties. (Tabor v. Superior Court (1946) 28 Cal.2d 505, 507; see Dodge, supra, 77 Cal.App.4th at p. 518.) "When challenged on appeal, such an order is reversible per se." (Mercer v. Perez (1968) 68 Cal.2d 104, 118.)
The parties agree that the 60-day time period for the court to rule on Castro's reconsideration motion began to run on May 14, 2008 when Castro filed a notice of intention to move for a JNOV and new trial. (See Jones v. Sieve, supra, 203 Cal.App.3d at pp. 368-371 [motion to reconsider an order on a new trial motion is governed by the same 60-day time period].) They further agree that the 60-day time period thus expired by July 14, 2008, and that the court did not enter its new trial order until August 13, 2008, about one month after this expiration date.
Castro recognizes that section 660's statutory deadline is jurisdictional, but nonetheless asks this court to create an equitable exception to this mandatory rule. Eleven years ago, this court rejected the identical argument, stating, "The law has long been settled that the 60-day statutory period is mandatory and jurisdictional. [Citations.] Fairness has little to do with it.... If the statute is to provide exceptions, the job is for the Legislature, not the courts, to carve them out." (Dodge v. Superior Court, supra, 77 Cal.App.4th at p. 524.)
In urging us to reconsider this conclusion, Castro relies on Hocharian v. Superior Court (1981) 28 Cal.3d 714, in which the court recognized a "reasonable diligence" exception to the statutory rule that a summons must be served within three years. (Hocharian, supra, 28 Cal.3d at p. 722.)The Hocharian majority reasoned that despite the plain language of the statute, the statute was not jurisdictional and the Legislature "would not have required a plaintiff to be more than reasonably diligent." (Id. at p. 721 & fn. 3.) However, as Castro acknowledges, the next year, the Legislature "repudiated" this holding, by amending the code section to include a declaration that the statute is mandatory and jurisdictional. (See Republic Corp. v. Superior Court (1984) 160 Cal.App.3d 1253, 1256.) The Legislature's swift action reinforces our conclusion that we have no authority to create an implied exception to a plainly worded statute.
Section 660's deadline for granting a new trial motion is jurisdictional. Thus, the court had no authority to grant a new trial in this case. (§ 660.) Castro alternatively contends that he may assert his juror misconduct contentions as part of his cross-appeal as a challenge to the denial of the motion by operation of law. We shall address this issue in Section III below.
II. Cross Appeal: No-Causation Finding
In his cross-appeal, Castro contends there was insufficient evidence to support the jury's finding that SDG&E's negligence did not cause his injuries.
A. Review Standards
When a jury's factual determination is challenged on appeal, the reviewing court must determine whether any substantial evidence, contradicted or uncontradicted, supports the jury's conclusion. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1489.) We must review the entire record in the light most favorable to the judgment below and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 24.) " ' "[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the [factfinder]. If such substantial evidence be found, it is of no consequence that the [jury] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." [Citation.]' " (Piedra, supra, at p. 1489.)
Because Castro challenges a negative finding (no causation), he must establish the evidence compels the contrary finding (causation) as a matter of law, i.e., under no reasonable hypothesis could a jury find the negligence did not cause Castro's injuries. (See Horn v. Oh (1983) 147 Cal.App.3d 1094, 1099.) Castro contends that because the jury found in his favor on the negligence issue, we must assume the jury found in his favor on each of his "four discrete theories of liability, " and therefore we are required to analyze each discrete negligence theory to determine whether the no-causation finding is supported on each theory. Castro thus maintains that we must reverse the judgment unless the evidence supports the no-causation finding on each one of his multiple theories.
The argument is contrary to the well-settled appellate rule that a reviewing court is required to draw all inferences in favor of the judgment. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) Under this rule, on a substantial evidence challenge to a verdict that finds the defendant was negligent, but that the negligence was not a cause of the plaintiff's injuries, we must uphold the verdict if the evidence supports the lack of causation on any one negligence theory. (Jonkey v. Carignan Construction Co., supra, 139 Cal.App.4th at p. 26.) As the Jonkey court recently explained, "[w]here, as here, there is no special finding on what negligence is found by the jury, the jury's finding is tantamount to a general verdict. As long as a single theory of negligence is lawfully rebutted on a lack of causation theory, it matters not that another theory of negligence is not so rebutted." (Ibid.) Accordingly, Castro cannot prevail on his substantial evidence challenge if there is substantial evidence to support the lack of causation on any one of his theories.
B. Applicable Legal Principles and Instructions
To recover on a negligence claim, the plaintiff must prove "the defendant's act or omission... was a cause of the plaintiff's injury." (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 288; Jackson v. Ryder Trust Rental, Inc. (1993) 16 Cal.App.4th 1830, 1846-1847 (Jackson).) Causation "generally is a question of fact for the jury." (Vasquez, supra, at p. 288; see Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.) The issue is one of law only when the facts are undisputed and only one conclusion may be drawn. (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666; Arthur v. Santa Monica Dairy Co. (1960) 183 Cal.App.2d 483, 486.)
Our Supreme Court has adopted a causation test that "asks whether a cause is a substantial factor in bringing about injury." (Jackson, supra, 16 Cal.App.4th at p. 1847.) Under this test, the plaintiff must generally prove that "but for the negligence, the harm would not have occurred." (Viner v. Sweet (2003) 30 Cal.4th 1232, 1239-1241, italics omitted; Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.) The jury was instructed consistent with this standard. Specifically, the court instructed the jury that: "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct." The jury was also instructed that if SDG&E's negligence was a "substantial factor" in causing Castro's injuries, SDG&E "cannot avoid responsibility just because some other person, condition, or event was also a substantial factor" in causing the harm. In this regard, the court told the jury that if the jury found Chong and/or Castro also contributed to the injury, the jury would be required to "assign[ ] percentages of responsibility" in the verdict form.
The jury was also given numerous instructions on negligence, including a negligence per se instruction, stating that at the relevant time, the "State of California Public Utilities Commission General Order 95, Rule 37 required that utilities such as SDG&E to maintain their power lines at least 12 feet above any building or any structure." The jury was also instructed that it is a violation of the law to place, erect or move any tools or equipment within six feet of a high voltage overhead conductor, and the responsible individual must notify the utility if such work is to be performed (see Pen. Code, § 385; 8 Cal. Code Regs., § 2948), and that "[e]very person has a right to expect that every other person will use reasonable care and will not violate the law, unless he or she knows, or should know, that the other person will not use reasonable care or will violate the law."
This instruction continued: "If you decide [¶] 1. That S.D.G. & E. violated these regulations or orders and [¶] 2. That the violation was a substantial factor in bringing about the harm [¶] then you must find that S.D.G. & E. was negligent unless you also find that the violation was excused. [¶] If you find that S.D.G. & E. did not violate these regulations or orders, or that the violation was not a substantial factor in bringing about the harm or if you find the violation was excused, then you must still decide whether S.D.G. & E. was negligent in light of the other instructions."
Castro does not challenge the jury instructions on appeal, and therefore we measure the adequacy of the evidence against these and the other given instructions. (See Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1535.)
C. Analysis
1. Facts Support SDG&E's Negligence Was Not Cause of Castro's Injuries
Generally, a defendant's misconduct " 'is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.' " (Viner v. Sweet, supra, 30 Cal.4th at p. 1240, quoting Rest.2d Torts § 432(1); see Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498.) The "crucial causation inquiry is what would have happened if the defendant" had not committed the alleged misconduct. (Viner v. Sweet, supra, at p. 1242.) The jury was instructed on this concept.
Under these principles, the jury could have reasonably found that Castro did not meet his burden to show he would not have been injured if SDG&E had not been negligent. In reaching this conclusion, we assume the jury found that SDG&E was negligent based on Castro's theory that the wires did not satisfy the required 12-foot minimum clearance, and/or because SDG&E's inspections did not uncover this claimed violation of the applicable PUC rules.
At trial, Castro argued that the aluminum rod would not have touched the high voltage wires if there was a 12-foot clearance between the greenhouse roof and the wires. However, SDG&E presented evidence that supports a different conclusion. SDG&E's expert examined the 12-foot rod that Castro was holding at the time of the accident and determined that the rod hit the wires at 13 inches below the top of the rod, and that Castro was holding the rod at about 6 inches above the opposite end. Based on this physical evidence and the location of Castro's burn injuries, the expert opined that at the time of the injury, Castro (who is 5 feet 2 inches) could not have been squatting or kneeling (as Castro claimed) and instead Castro must have been standing up and raising the rod with one or both hands into the air. The evidence further showed that the wires were plainly visible from the roof, Castro was aware of the wires before he began the roofing work that morning, and there was no (or minimal) wind on the day of the accident.
Based on this evidence and reasonable inferences from this evidence, the jury could have reasonably found that even if the SDG&E wires were at the required 12 feet from the top of the roof, the aluminum rod would not have missed the overhead wires and thus Castro would have sustained the same injuries. In this regard, the jury could have reasonably accepted SDG&E's counsel's closing argument in which he suggested a scenario in which Castro was standing up in the narrow gutter area holding down the plastic with one foot when he grabbed the rod with his left hand while holding a rubber mallet in his right hand, and then lost his balance, which caused him to fall backwards and lose control over the rod, causing the rod to swing up into the air, which hit the wires as Castro was falling backwards. Under this version of the incident and taking into account Castro's height (5 feet 2 inches), the evidence showing he was standing, and the length of the pole (12 feet), a jury could have reasonably concluded that Castro's arm would have continued to swing up in the air so that the rod would hit the overhead high voltage wires even if the wires had a 12-foot clearance.
To the extent that defense counsel did not articulate this final scenario in his closing argument, we review the factual record to determine whether the evidence supports the jury verdict, and not the arguments of counsel. A jury is entitled to rely on a theory supported by the evidence, even though counsel did not advocate the particular reasoning in the closing argument.
Relying on the evidence that the aluminum rod hit the wires at 13 inches below the top of the rod, Castro argued that at most the rod extended 13 inches above the 9-foot 2-inch wire, which would have been about 10 feet 3 inches above the roof. Castro thus claimed that the rod would not have hit the wires if SDG&E had maintained the required 12-foot clearance between the roof and the wires. Although the jury certainly could have agreed with this argument, it was not required to reach this factual conclusion. Based on all of the evidence, a jury could reasonably reject Castro's argument that the 12-foot rod would have gone no higher than about 10 feet above the roof.
In determining whether a defendant's negligence caused the plaintiff's harm, " ' "the triers of fact are permitted to draw upon ordinary human experience as to the probabilities of the case." ' " (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1030.) The plaintiff has the burden of proving causation, and a " ' "mere possibility of... causation is not enough...." ' " (Ibid.) If the evidence supports only a speculation or conjecture with respect to the causal connection between the negligence and the harm, it is proper for a jury to conclude that the plaintiff did not meet this burden. (Ibid.)
Castro did not present any evidence, expert or percipient, showing how he sustained the injuries, and whether these injuries would have occurred without SDG&E's alleged negligence. Thus, the jury could reasonably find Castro's proof was speculative and that he failed to meet his causation burden. In this regard, Castro's arguments focusing on the fact that the contact with the wire "caused" his injuries are misdirected. Under the applicable law, the question is not whether harm resulted from the accident (the contact with the SDG&E wires), but whether it resulted from SDG&E's negligence, e.g., its maintaining the wires too low.
Finally, we reject Castro's contention that based on the court's negligence per se instruction, the jury's negligence finding "necessarily included a finding of causation." Castro maintains that because the negligence per se instruction identified both negligence and causation as elements of a negligence per se finding (see fn. 5, ante), the jury must have found that SDG&E's negligence was a cause of his injuries on the 12-foot clearance issue. However, this argument assumes that negligence per se was the only theory upon which the jury could base its negligence finding. This assumption is unsupported on this record, and is inconsistent with our obligation to view the jury verdict in the light most favorable to SDG&E on the causation issue. (See Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 630.) Under the instructions, the jury could have found SDG&E was negligent with respect to the 12-foot clearance issue under the general negligence instructions, rather than the per se instructions. Thus, we reject Castro's suggestions that there is an inherent inconsistency between the negligence finding and the causation finding based on the negligence per se instruction.
2. Facts Support SDG&E's Negligence Was Remote Factor in Contributing to Harm
We alternatively conclude the jury could have reasonably found that the intervening negligence of Castro and/or Chong were superseding causes and that SDG&E's negligence was a remote cause that did not support liability in this case.
Under the "substantial factor" test, even "a very minor force" that causes harm is considered a cause in fact of the injury. (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) However, " 'a force which plays only an "infinitesimal" or "theoretical" part in bringing about [the] injury... is not a substantial factor.' " (Ibid.) Consistent with these principles, the court instructed the jury that a substantial factor "must be more than a remote or trivial factor." (CACI No. 430.) The issue whether an action was a "substantial factor" or a "remote or trivial" factor in causing the plaintiff's injuries requires a consideration of the totality of the circumstances, and is a factual question for the jury's determination.
In this case, the evidence showed Chong was aware of the potential danger because an employee of a construction company had been injured by the SDG&E wires on the property in a similar location and this worker had sued Chong seeking damages for this injury. Chong acknowledged at trial that he knew about the danger and had repeatedly warned his workers, including Castro, about the overhead wires. Castro likewise admitted he was aware of the wires before he went on the roof the day of the accident. The photographs also made clear that the wires were obvious and would have been noticed by a reasonable person. Although Castro produced evidence about the concept of "inattentional blindness, " the jury was not required to accept the expert's opinion that an individual's carelessness as to obvious items in his or her environment is excusable or reasonable.
On this record, the jury could have concluded that Chong's conduct and/or Castro's affirmative and "volitional" conduct were the causes of Castro's injuries and that this conduct was not reasonable or explainable. Even assuming the wires were too low, the jury could find as a matter of fact that the lack of reasonable care by Castro and/or Chong was the only substantial cause of the accident.
This conclusion is consistent with well established intervening/superseding cause principles. " 'Where, subsequent to the defendant's negligent act, an independent intervening force actively operates to produce the injury, the chain of causation may be broken. It is usually said that if the risk of injury might have been reasonably foreseen, the defendant is liable, but that if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen and hence not foreseeable, it is a superseding cause, and the defendant is not liable.' " (Jackson, supra, 16 Cal.App.4th at p. 1848; see also Gill v. Epstein (1965) 62 Cal.2d 611, 617-618 ["a chain of causation may be broken by an independent intervening act which is not reasonably foreseeable"].) The question of foreseeability is one for the trier of fact. (Jackson, supra, at p. 1849.)
The jury had a reasonable basis to find that Castro's actions were so highly unusual and not reasonably likely to happen that SDG&E's negligence was essentially a remote cause that did not support liability under the substantial factor test. The jury was specifically instructed that it is a criminal violation for an employer to require a worker to move equipment within six feet of a high voltage wire, that an employer has the obligation to notify a utility of any such proposed work, and that SDG&E had the "right to expect that every other person will use reasonable care and will not violate the law...." Additionally, SDG&E presented evidence that the buildings were not "walkable, " and therefore it would not reasonably expect that a person would be standing on the building holding up a 12-foot metal rod that would hit clearly visible wires.
Castro argues the injury here was foreseeable based on the prior Friske incident. Although the jury could have accepted this argument, it was not required to do so. Because the Friske accident occurred 20 years before Castro's accident and arose under different circumstances (during the construction of the buildings), a jury was entitled to find that the circumstances were sufficiently different that Castro's conduct would not have been foreseeable. Castro does not cite to any decisions in which a court held that as a matter of law the defendant caused the harm despite the intervening negligent conduct of the plaintiff or a third party. Although the jury could have decided this case under comparative negligence principles, it was not required to do so. (See Arthur v. Santa Monica Dairy Co., supra, 183 Cal.App.2d at pp. 484-490.)
In reaching our conclusion, we find it significant that in ruling on Castro's new trial motion, the experienced trial judge, who presided over this 16-day trial, found substantial evidence supported the jury's no-causation finding. In so concluding, the court recognized its authority to act as a " 'thirteenth juror' " and to independently weigh the evidence and assess whether the evidence supported the verdict. (See Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 507.) After conducting this review, the court declined to grant a new trial, and specifically found "substantial evidence supports the jury's determination that the negligence of [SDG&E] was not a substantial factor in causing the harm to plaintiffs." Although we are not bound by this finding, this ruling bolsters our conclusion that the evidence supports the jury's no-causation finding. Because the "trial court sits much closer to the evidence than an appellate court" and "[e]ven the most comprehensive study of a trial court record cannot replace the immediacy of being present at the trial, " the "trial court... is in the best position to assess the reliability of a jury's verdict...." (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64.)
Castro contends the court's findings on the causation issue were later undermined by its findings that the jury engaged in misconduct. However, the alleged jury misconduct presented different factual and legal issues. The court's specific finding that substantial evidence supported the jury's no-causation findings was not affected by the court's later rulings on Castro's reconsideration motion on different grounds.
III. Cross-Appeal: Jury Misconduct
Castro moved for a reconsideration of his new trial motion based on jury misconduct. In Section I, we concluded the court had no authority to grant a new trial because the court did not rule on the reconsideration motion within the statutory time period. In his cross-appeal, Castro reasserts his jury misconduct arguments, contending that if the court had no jurisdiction to grant his order, then his reconsideration motion was necessarily denied by operation of law and a denial of a new trial motion by operation of law is appealable. (See In re Marriage of Liu (1987) 197 Cal.App.3d 143, 152-153.) SDG&E counters that the reconsideration motion was not properly or timely brought and therefore there was no valid order from which to appeal.
We need not resolve this argument because even assuming we could properly address Castro's appellate arguments on the cross-appeal based on a theory that the motion was denied by operation of law, the record does not establish prejudicial juror misconduct.
A. Applicable Legal Standards
On a new trial motion asserting jury misconduct, the moving party bears the burden to establish that jury misconduct occurred. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625.) On appeal, we review the denial of a new trial motion by operation of law under the same standard of review we would apply if the trial court had made an explicit ruling denying the motion. (In re Marriage of Liu, supra, 197 Cal.App.3d at p. 152; Estate of Shepard (1963) 221 Cal.App.2d 70, 73.) Thus, we infer that the trial court made all factual findings supporting a denial of Castro's motion. (See Jie v. Liang Tai Knitwear Co. (2001) 89 Cal.App.4th 654, 666-667.) Whether prejudice arose from juror misconduct is a mixed question of law and fact subject to our de novo review. (See Donovan, supra, 167 Cal.App.4th at p. 626.)
The first step in considering a motion for new trial based on juror misconduct is to determine whether the evidence of the misconduct is admissible. (People v. Sanchez (1998) 62 Cal.App.4th 460, 475.) Evidence Code section 1150, subdivision (a) 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. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
The California Supreme Court has interpreted this code section as drawing a " 'distinction between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning process of the individual juror, which can be neither corroborated nor disproved'...." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 413, disapproved on another ground in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) The statute "limits impeachment evidence to 'proof of overt conduct, conditions, events, and statements.... This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent.' " (Ibid.)
"[W]hen considering evidence regarding the jurors' deliberations, a trial court must take great care not to overstep the boundaries set forth in Evidence Code section 1150. The statute may be violated not only by the admission of jurors' testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by... section 1150." (People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.)
Evidence Code section 1150 "serves a number of important policy goals: It excludes unreliable proof of jurors' thought processes and thereby preserves the stability of verdicts. It deters the harassment of jurors by losing counsel eager to discover defects in the jurors' attentive and deliberative mental processes. It reduces the risk of postverdict jury tampering. Finally, it assures the privacy of jury deliberations by foreclosing intrusive inquiry into the sanctity of jurors' thought processes." (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 414, fn. omitted.) " 'To require trial courts to review declarations reciting purported thought processes of jurors is certain to produce a deleterious effect upon the finality of jury verdicts.' " (Id. at p. 414, fn. 7.)
B. Relevant Facts Pertaining to Alleged Juror Misconduct
Although the trial consumed 16 days, the jurors deliberated for a relatively brief period before returning the verdict. The jury began deliberating at about 9:00 a.m., took a lunch break, renewed deliberations at about 1:30 p.m., and then reached a verdict about one hour later. The vote on causation was 9 to 3 in SDG&E's favor.
In support of his reconsideration motion, Castro submitted the declaration of two jurors (Juror N and Juror F), who voted in the minority on the causation issue. In their declarations, both jurors stated that the deliberations began in the morning when the foreperson read the jury instructions, and after a brief discussion, an initial poll was taken and six jurors voted that SDG&E was "negligent" and six jurors voted that SDG&E was not "negligent." Both jurors then described the subsequent juror discussions.
According to Juror N: "At that point, the deliberations shifted from any consideration of the evidence presented or the jury instructions, to being pressured by some of the jurors who voted 'No' to get us to change our vote so that we could get done with the deliberations. [¶]... [¶]... Prior to lunch, some of the jurors who voted 'No', suggested that we compromise on our vote, in order to move the process along so all of us could get through deliberations quicker. The deal they suggested was that jurors would vote 'Yes' that SDG&E was negligent if the other jurors voted 'No' to whether SDG&E's negligence was a substantial factor in causing Mr. Castro's accident. This resulted in the jury verdict that SDG&E was negligent and yet that their negligence was not a substantial factor. At that time, the jury foreperson indicated that, 'I don't understand how you can sit there and say that SDG&E was negligent and then say that it was not a substantial factor.' [¶]... [T]he jury foreperson very calmly and rationally tried to reason with some of the jurors and put her point across that they could not find that SDG&E was negligent based on the evidence and then determine that SDG&E's negligence was not a substantial factor. The jury foreperson read the jury instructions out loud and tried very hard to convince the people. However, it was hard to convince people who had their minds made up...." (Emphasis omitted.)
According to Juror F, after the initial poll and additional discussion, "the deliberations shifted to the consideration of whether SDG&E's negligence was a substantial factor causing Mr. Castro's accident. A compromise was reached where by jurors voted 'Yes' that SDG&E was negligent while they also voted 'No' to whether SDG&E's negligence was a substantial factor in causing Mr. Castro's accident. This resulted in the jury verdict that SDG&E was negligent and yet that their negligence was not a substantial factor."
C. Analysis
Castro contends these portions of the juror declarations establish misconduct because they show the jurors violated the court's instructions by agreeing to "trade" votes. However, the declarations are inadmissible on this point. A juror declaration is inadmissible if it describes statements made by other jurors that reflect the subjective reasoning of the other jurors. (People v. Sanchez, supra, 62 Cal.App.4th at pp. 475-476.) Under this rule, the declarants' statements that they believed other jurors were motivated to vote for a certain result because of these jurors' stated desire to compromise or to bring the deliberations to a quicker conclusion are reflections of the jurors' reasoning processes and thus are inadmissible.
Castro's reliance on Krouse v. Graham (1977) 19 Cal.3d 59 is misplaced. Krouse held that an express agreement not to follow the instructions "or extensive discussion evidencing an implied agreement to that effect" would constitute juror misconduct. (Id. at p. 81; see Thompson v. Friendly Hills Regional Medical Center (1999) 71 Cal.App.4th 544, 551.) But there is no evidence in this case of an express or implied agreement to violate the court's instructions. Juror F's statement that a "compromise was reached" reflects his private speculation regarding the mental processes of the other jurors, i.e., why nine jurors voted for negligence and why nine jurors voted against causation. It does not establish the jury actually agreed to such compromise, and is not based on any declared "overt, " or "objectively ascertainable" event. Likewise, Juror N's statement that after the jurors proposed the purported compromise, "[this] resulted in the jury verdict that SDG&E was negligent and yet that their negligence was not a substantial factor" reflects Juror N's speculation that the proposed compromise was the reason the jurors voted as they did. There was no evidence that this proposal was accepted by the jurors under an express or implied agreement.
Because the proffered evidence was inadmissible, we do not reach the issue whether any such compromise would have constituted a violation of the court's instructions.
In his appellate briefs, Castro does not renew his arguments made in the proceedings below that certain additional statements allegedly made by two jurors during deliberations constituted prejudicial juror misconduct. The argument is thus waived. The argument also fails on its merits. In her declaration, Juror N stated that: "One juror... who I believe was [Juror H], stated that, 'everyone just wants to sue.' Another juror, ... who I believe was [Juror R], stated that Mr. Castro 'will be taken care of by workmen's compensation' in order to convince those jurors who wanted to make an award for Mr. Castro to change their vote." (Emphasis omitted.)
Generally, isolated statements made during deliberations, without showing the context in which they were made, do not establish a basis for overturning a jury verdict. (See Tillery v. Richland (1984) 158 Cal.App.3d 957, 977.) "If transient comments made in the heat of discussion during deliberations become a potential vehicle for attacking the verdict of the jury, freedom of discussion in the jury room is chilled, and the free exchange of ideas is inhibited. Random phrases suspended in thin air, taken out of context, should not the subject of a successful attack on the propriety of the verdict." (Ibid.) The first statement that "everyone just wants to sue" has not been shown to be anything more than a passing comment in the midst of juror discussions. The declaration did not state "the context in which the statements were made, or what preceded or followed them, or what subject was actually being discussed by the jurors." (Tillery, supra, at p. 975.) There is nothing in the record showing this juror made his decision on this fact, or that he concealed any negative feelings about plaintiffs during voir dire.
With respect to the reference to workers' compensation, Chong's workers' compensation carrier was a party at trial and presented evidence that it had paid substantial medical benefits for Castro's medical care and rehabilitation costs. Thus, the reference to workers' compensation was not per se improper. To the extent Castro argues that the jury improperly considered workers' compensation benefits in deciding the liability issues at trial, the argument is based on speculation and inadmissible evidence. There is no evidence of an express or implied agreement that the jury consider Castro's entitlement to workers' compensation benefits in deciding whether SDG&E was a cause of Castro's injuries.
DISPOSITION
The court is directed to vacate its order granting a new trial. The June 17, 2008 judgment is affirmed. The parties to bear their own costs on appeal.
WE CONCUR: McDONALD, J., McINTYRE, J.