Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GC038121. C. Edward Simpson, Judge. Affirmed.
California Legal Team and Okorie Okorocha for Plaintiff and Appellant.
Law Offices of Thomas M. Swiatek and Thomas M. Swiatek for Defendant and Respondent.
BIGELOW, J.
Roni Hemsley appeals the trial court’s denial of her motion for a new trial. A jury returned a defense verdict in Hemsley’s sexual harassment suit against Robert C. Ross. Hemsley contends prejudicial juror misconduct necessitated a new trial. We affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Hemsley litigated a sexual harassment suit against Ross and his Sports Bar, GEM City Grill. The jury returned a nine to three defense verdict. Hemsley filed a motion for new trial alleging jury misconduct. She based the motion on the declaration of one juror, Deb Flagg. Flagg declared that on the first day of trial, as the jurors were “walking out of the proceedings,” one of the jurors stated: “ ‘Well, that was a waste of time, we all know how this is going to turn out.’ ” Flagg further declared that during the jury’s deliberations, the same juror, along with one other juror, “began to pressure and cajole the panel to just ‘get this over so we can get out of here.’ ”
The trial, including deliberations, lasted two days.
According to Flagg, “[a]s a means to that end, two (2) jurors indicated that they were voting with the majority, which at one time was for the Plaintiff, just so [the jury] could finish early,” and they suggested that other jurors do the same. Flagg continued, “These two jurors stated ‘there’s no way we’re going to drag this out until tomorrow’ sometime around 3:30pm-4:00pm [sic], shortly before we came back with a verdict... [¶]... One of these jurors also stated: ‘What does she expect, she works in a bar?’ ” Flagg declared that the two jurors who indicated they were voting with the majority voted for the defendant.
In her motion for a new trial, Hemsley contended that the jurors did not deliberate, and that one juror had prejudged the case. She asserted this was clear misconduct entitling her to a new trial. In response, Ross submitted a declaration from the jury foreperson, Tammy Stafford. Stafford declared that two jurors felt strongly that Hemsley was not entitled to recover, but, despite their opinions, the jury reviewed the evidence presented, re-read the jury instructions, and all jurors expressed their opinions. Stafford stated that the two outspoken jurors may at one point have changed their vote to “enable the jury to move to the next question on the special verdict form.” However, Stafford could not be sure since the votes were conducted by anonymous paper ballot. Stafford stated her belief that “the jury followed the court’s instructions,” and that “the verdict reached reflected the jury’s conclusions after weighing the evidence, considering the credibility of the witnesses, and applying the facts to the court’s instructions.” Ross also argued that the “waste of time” statement was too vague to constitute juror misconduct.
The trial court denied Hemsley’s motion for a new trial. This appeal followed.
DISCUSSION
Under Code of Civil Procedure section 657, jury misconduct may invalidate a verdict if the misconduct materially affects the substantial rights of the complaining party. “In determining whether juror misconduct occurred, ‘[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.’ [Citations.]” (People v. Schmeck (2005) 37 Cal.4th 240, 294; Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 624-625 (Donovan).) In the review of an order denying a motion for new trial based on juror misconduct, whether any misconduct was prejudicial “ ‘is a mixed question of law and fact subject to an appellate court’s independent determination. [Citations.]’ [Citation.]” (People v. Ault (2004) 33 Cal.4th 1250, 1263.)
“Whether a juror engages in misconduct is determined based on evidence of ‘any overt event or circumstance, “open to [corroboration by] sight, hearing, and the other senses” [citation], which suggests a likelihood that one or more members of the jury were influenced by improper bias.’ [Citations.]” (Donovan, supra, 167 Cal.App.4th at p. 625.) Under Evidence Code section 1150 (section 1150), “evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict. The jury’s impartiality may be challenged by evidence of ‘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,’ but ‘[n]o evidence is admissible to show the [actual] effect of such statement, conduct, condition, or event upon a juror... or concerning the mental processes by which [the verdict] was determined.’ ” (In re Hamilton (1999) 20 Cal.4th 273, 294, quoting Evid. Code, § 1150, subd. (a); Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 58 (Ovando).)
On appeal, Hemsley identifies the prejudicial misconduct as the two jurors’ decision to vote with the majority in order to go home early. She relies solely on the Flagg declaration, which Ross argues is barred by section 1150. Indeed, although Flagg appears to report what the two jurors said about voting with the majority, the effect is to opine on the mental processes of these jurors. Several courts have held that summary declarations intending to show that jurors came to a decision simply in order to end the deliberations are not admissible to impeach a verdict.
For example, in Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, the appellant secured affidavits from jurors stating that, among other perceived problems, “several of the jurors wanted to get it over with and to go home since they were tired due to the length of the trial,” and “that one went by what the lawyer said and did not independently analyze the evidence and eventually agreed with what everyone else wanted.” (Id. at p. 385.) The court held that such allegations “dealt with and had the effect of proving the mental processes or reasons and subjective considerations which influenced the verdict and did not constitute competent evidence to impeach the verdict.” (Id. at p. 387; See also Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 910-911 [Under section 1150, court would not consider juror’s declaration that she voted as a compromise “because she thought that liability had been decided and she felt pressured by her employer to return to work.”]; People v. Flores (1979) 92 Cal.App.3d 461, 468-469, fn. 3 (Flores) [section 1150 prohibited consideration of declarations in which jurors reported they changed their votes because ten of their fellow jurors felt the defendant was guilty, and “any more time consumed would cost the taxpayers substantial sums of money and would prevent the rest of the jurors from pursuing their normal everyday activities.”].)
The only distinguishing factor here is that Flagg’s declaration may be construed as reporting the two jurors’ statement that they would vote for the majority to end jury deliberations, rather than simply summarizing the jurors’ reasoning. (Compare Flores, supra, 92 Cal.App.3d at p. 469 [specifically noting that affidavit did not contain quotes or describe overt conduct].) However, as our Supreme Court explained in People v. Lewis (2001) 26 Cal.4th 334, 388-389, “ ‘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 Evidence Code section 1150.’ [Citation.]” The only exception arises when “a statement that reflects a juror’s reasoning processes... itself amounts to juror misconduct, comparable to an objective fact such as reading a novel during trial, or consulting an outside attorney for advice on law relevant to the case. [Citation.]” (Id. at p. 389.)
The declaration is inconclusive in this regard. While Flagg states that the two jurors “indicated” they would vote with the majority, and “suggested” others do the same, it does not include actual quotes. (See Krouse v. Graham (1977) 19 Cal.3d 59, 81 [inconclusive declarations].)
Flagg’s declaration does not establish that the jurors’ “vote with the majority” statement was itself misconduct. Flagg states that the majority of the votes switched from the plaintiff to the defendant, without indicating whether the two jurors participated in the further deliberations that led to the shift. The declaration also states that one of the jurors made a comment about the substance of the case in favor of the defendant, suggesting that the juror did in fact deliberate on the merits. The record contains no other relevant evidence, no other declarations aside from the Stafford declaration, and no evidence about the underlying case. Given the record, we cannot conclude that the jurors’ statement constituted or reflected misconduct. Instead, Flagg’s recollection of the jurors’ statement reflected their mental processes, and was therefore inadmissible to impeach the verdict.
The Stafford declaration offers a different description of the deliberations, but does not directly counter the Flagg declaration or refute that certain statements were made. Moreover it clearly purports to describe how some jurors felt and their mental processes. We agree with the trial court that such statements were not admissible under section 1150.
“ Waste of Time” Statement
Ross accurately notes that Hemsley’s opening brief does not mention the portion of Flagg’s declaration recounting the “waste of time” statement. And, although Ross pointed out this omission in his brief on appeal, Hemsley did not address the “waste of time” statement in her reply brief. We can only conclude that Hemsley has abandoned that argument. (Dimon v. County of Los Angeles (2008) 166 Cal.App.4th 1276, 1279, fn.1; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
DISPOSITION
The judgment is affirmed. Respondent is to recover his costs on appeal.
We concur, RUBIN, Acting P. J., BAUER, J.
Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.