Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV045359
RUSHING, P.J.
Plaintiff Miguel Farfan brought this action to recover damages for personal injuries he sustained when he drove his motorcycle into the side of a car driven by defendant Robert Ottler. A jury found by special verdict that Ottler was not negligent, and returned a verdict for him and his codefendants. The trial court denied plaintiff’s motion for a new trial, and plaintiff brought this appeal, contending that the verdict was marred by juror misconduct and is not supported by substantial evidence. We find no error, and affirm.
Counsel for both parties are admonished that their briefs suffer from a pervasive defect in that the record citations frequently do not support, or even relate to, the facts they are cited to establish. Obviously such citations do not comply with the obligation to provide record citations for factual assertions. (Cal. Rules of Court, rule 8.204(a)(1)(B).)
The collision occurred on August 11, 2003, about 8:20 a.m. Defendant Ottler was driving toward San Jose International Airport, where he was scheduled to catch a 9:10 a.m. flight to Seattle in the service of his employer, Forest City Enterprises. Ottler was driving his father’s Honda sedan while his father, Rupert Ottler, rode in the passenger seat. Plaintiff, meanwhile, was riding his high-performance Honda motorcycle from his employer’s San Jose premises to the Morgan Hill office of his real estate agent.
The collision occurred while plaintiff was attempting to enter the Bayshore Freeway (Highway 101) from Old Bayshore Highway. According to Ruben Diaz, who was driving a tow truck on Old Bayshore, and also seeking to merge onto the freeway, plaintiff passed him on the right in a right-turn-only lane before speeding off toward the intersection of Fourth Street and Old Bayshore, where Ottler was executing a left turn onto Old Bayshore from a stop sign. Plaintiff was not looking toward the intersection, according to Diaz, but backwards or to the left, toward the freeway. His motorcycle collided with Ottler’s sedan at or near the rear driver’s side door. The car behind Ottler’s was driven by John Eshelman, who testified that he did not see the motorcycle until after Ottler came to a stop and began his left turn, at which point Eshelman saw, in his peripheral vision, plaintiff’s motorcycle approach at a high rate of speed and collide with Ottler’s car.
Plaintiff brought this action against Ottler, his employer Forest City Enterprises, and his passenger, Rupert Ottler. The matter went to the jury on a special verdict. The first question was whether defendants were negligent. Ten jurors answered this question in the negative; one answered in the affirmative, and one abstained. The court entered judgment for defendants. Plaintiff moved for a new trial on grounds of irregularity in the jury proceedings, juror misconduct, insufficiency of the evidence, and verdict contrary to law. (See Code Civ. Proc., § 657, subds. (1), (2), (6).) He also moved for judgment notwithstanding the verdict (see Code Civ. Proc., § 629) on the ground that “the evidence supporting the jury verdict is insufficient as a matter of law ....” (Italics in original.) The trial court denied both motions. This timely appeal followed.
Discussion
I. Jury Misconduct
Plaintiff’s claim of jury misconduct is based on the post-trial declaration of juror J.W., who stated that immediately upon entering the jury room to commence deliberations, she heard another juror, whom she identified as J.M., say, “I hate attorneys.” Several other jurors laughed. To the best of her knowledge, “Presiding Juror P[.]L[.] did not inform the Bailiff or the court” about J.M.’s statement. She offered her “personal[] belie[f]” that “an undertone of anti-motorcyclist bias pervaded this jury.” She further opined that “MacNamara’s biased comment about attorneys set a negative tone against Mr. Farfan’s lawyers at the very outset of jury deliberations and may have affected the ultimate verdict.”
A claim of juror misconduct raises three subsidiary questions, each of which is addressed to the trial court’s broad discretion. (Sierra View Local Health Care Dist. v. Sierra View Medical Plaza Associates (2005) 126 Cal.App.4th 478, 484.) The first is whether the proffered evidence of misconduct is admissible, with particular attention to Evidence Code section 1150. (People v. Duran (1996) 50 Cal.App.4th 103, 112.) That section allows a party seeking to impeach a verdict to rely upon “any otherwise admissible evidence... 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).) This provision expressly authorizes evidence of a statement such as the “I hate attorneys” attributed to juror J.M. by juror J.W. However the statute bars evidence that is offered “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.” (Ibid.) This provision operates here to preclude reliance on the declarant juror’s statements about an “undertone of anti-motorcyclist bias” and the possibility that the offending remark “affected the ultimate verdict.”
We turn to the second question, which is whether the facts competently shown “establish misconduct” by one or more jurors. (People v. Duran, supra, 50 Cal.App.4th at p. 113.) Plaintiff offers no authority for the proposition that a remark of the type described here (“I hate attorneys”) can, without more, sustain an order granting a new trial—let alone compel the trial court to make such an order. It goes without saying that an argument unsupported by citations to authority may be disregarded, unless of course some justification for the absence of authority appears, such as the novelty of the point presented. Plaintiff’s failure to present relevant authority does not appear excusable on any such ground.
Nor does our own review of the governing law suggest any basis for a conclusion that a juror’s expression of general disdain for attorneys constitutes the kind of misconduct that can impeach a verdict. Such a comment falls within none of the generally recognized categories of juror misconduct, i.e., the improper reception of evidence, communications with nonjurors concerning the merits of the case, discussions among jurors other than in the course of duly directed deliberations, reliance on chance to arrive at a verdict, juror inattentiveness at trial, or concealed bias against a party. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in the Trial Court, § 28, pp. 611-614.) The “I hate attorneys” comment most nearly resembles the last of these categories, but we are directed to no evidence that the speaker’s feelings towards attorneys had been concealed, e.g., that the offending juror was asked during voir dire how he felt about attorneys, and failed to answer honestly. Indeed plaintiff has not included the voir dire in the record on appeal. Moreover we seriously doubt that a general disdain for attorneys constitutes the kind of “bias” that will by itself justify removal of a juror for cause. On its face such an attitude would affect both sides equally, since each was represented by counsel. Plaintiff would have us assume that because the verdict ultimately went for the defense, the stated bias must have weighed more heavily against plaintiff. But while prejudice will be presumed when juror misconduct is found (see Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1168), we cannot presume prejudice in order to find that misconduct occurred.
In his reply brief plaintiff quotes at length the trial court’s instructions concerning the manner in which the jurors should conduct their deliberations. He then argues that the quoted juror—and the foreperson by inaction—failed to comply with those directives. This assertion rests on many speculative inferences about what the remark disclosed about the nature of the deliberations leading to the verdict. But it seems at least as likely that the remark was an expression of lay frustration with the trial process and was intended largely, if not entirely, in jest. Certainly the jurors who laughed at it may be inferred to have understood it that way. We are barred from adopting plaintiff’s darker interpretation by the absence of supporting evidence and by the trial court’s implied finding to the contrary.
The trial court did not err by refusing to grant a new trial on grounds of juror misconduct.
II. Sufficiency of Evidence
Plaintiff contends that the evidence was insufficient to sustain a defense verdict. We have summarized the principles governing such a contention many times. “ ‘An appellate court “ ‘must presume that the record contains evidence to support every finding of fact....’ ” [Citations.] It is the appellant’s burden, not the court’s, to identify and establish deficiencies in the evidence. [Citation.] This burden is a “daunting” one. [Citation.] “A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]” [Citation.] “[W]hen an appellant urges the insufficiency of the evidence to support the findings it is his duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.” [Citation.]’ ” (City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 484, quoting Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)
Plaintiff makes no attempt to “summarize the evidence... favorable and unfavorable.” (City of Hollister v. Monterey Ins. Co., supra, 165 Cal.App.4th at p. 484) He simply marshals the evidence that would support a verdict in his favor and offers his interpretation of it. This alone justifies rejection of his claim of error.
In any event his argument is unpersuasive. At its core is the notion that the jurors could not reasonably credit the testimony of Robert Ottler and his father, Rupert Ottler, that although they were looking left the whole time, they only saw plaintiff approaching two seconds before the impact. Plaintiff cites the testimony of the Ottlers and others to establish a supposed “gap” between the time they should or must have seen plaintiff, and the time they say they did see him. This leads plaintiff to the ringing conclusion, which the jury “chose to disregard,” that “Respondents lied. Respondents were not looking left they were in a rush to get to the airport.” (Italics omitted.)
This is undoubtedly a fine jury argument, but the jurors did not have to accept the credulous adoption of the witnesses’ time and distance estimates on which this argument rested. They were entitled to consider the testimony in light of the common experience that many if not most people can estimate things like time and speed only very approximately. They were not obliged to choose between crediting the defense case in its entirety and dismissing it altogether as a tissue of lies. Indeed jurors could quite properly return a defense verdict even without vesting affirmative credence in the defense witnesses. It was plaintiff’s burden at trial to establish that Robert Ottler failed to exercise due care in operating his car. If jurors were uncertain about the relevant times, speeds, and distances, it was well within their competence to conclude that the evidence was simply insufficient to sustain a positive finding either way, in which case its duty was to return a verdict for defendants. Recognition of this basic fact exposes the virtual impossibility of the task plaintiff has undertaken in this court. It is not enough for him here to show that the evidence would not sustain an affirmative finding against him; he can only prevail by showing that the evidence at trial positively compelled the jury to make an affirmative finding in his favor, i.e., that no reasonable juror could fail to be persuaded of plaintiff’s view of the facts. There might be cases where such a burden could be sustained on appeal, but this is not one of them.
Defendants cite testimony by truck driver Diaz—which plaintiff does not acknowledge even in his reply brief—that Ottler “was already at the stop sign pulling out” when plaintiff passed Diaz in the right-turn-only lane and thus became visible to Ottler. (Italics added.) The jury could find that this testimony was irreconcilable with the witnesses’ estimates of the elapsed time between plaintiff’s passing the truck and the collision. But again, that discrepancy would not oblige the jurors to return a verdict for plaintiff. They could quite reasonably discount the numerical time estimates while crediting the testimony about the sequence of events. If they did so, as we must presume in support of the verdict, then they found that Ottler had already begun his left turn when plaintiff first became visible to him. If it took five seconds to execute the turn, as the jury could also believe, then something less than five seconds was available to Ottler to do something different than what he did—presumably, back up or step on the gas. Jurors were entitled to conclude that his failure to avert the accident within such a time was not negligent. They simply were not obliged to accept plaintiff’s interpretation of the evidence.
Under a separate heading plaintiff accuses defendants’ accident reconstruction expert of “wild speculation and salacious [sic] innuendo” in that he “pompously proclaimed that Farfan’s injuries ‘were not life threatening’ ” although he lacked qualifications to render such an opinion and had not reviewed the medical records. Plaintiff also attacks the defense expert’s theory on the ground that it rested on an “outlandish scenario.” No record citation is provided for the supposedly offending testimony. From plaintiff’s own description it appears so peripheral to any issue before the jury that it is difficult to imagine how it could have affected the verdict, particularly since the jury never even reached the issue of damages. Indeed plaintiff makes no charge of error, as such, in connection with this testimony. We therefore pass his criticisms of it without further comment.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.