Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Jeffrey B. Barton, Judge, Super. Ct. No. GIC849122
O'ROURKE, J.
Plaintiffs and appellants, Javier and Blanca Diaz, sued Greenwood Memorial Park and Mortuary, alleging causes of action for breach of contract, negligence, negligent representation, intentional misrepresentation and fraud. Following a jury verdict, Greenwood successfully moved for new trial based upon jury misconduct. Appellants contend the trial court committed reversible error because juror declarations filed in support of the motion were not admissible, and did not establish jury misconduct. We affirm the order as modified.
We refer to this couple as Javier and Blanca for the sake of clarity, and intend no disrespect in doing so.
FACTUAL AND PROCEDURAL BACKGROUND
On July 18, 2004, Blanca Diaz suffered a miscarriage at Kaiser Permanente Hospital. Javier contracted with Greenwood for it to retrieve the body from Kaiser and prepare it for burial.
On July 27, 2004, Greenwood delivered a casket to the gravesite as arranged. While awaiting the priest, Blanca asked to view the body again. Initially, the Greenwood representative tried to dissuade her, but later agreed to a viewing if appellants signed a release. Appellants returned to the mortuary and waited for approximately two hours before a Greenwood representative told Javier there had been a mix-up at Kaiser and the body was not in the casket. When Javier informed Blanca, she became upset, ran out of the room and fainted. Back at the gravesite, she fainted a second time. Appellants postponed the funeral for approximately 30 days after the body was located, to allow an expert to positively identify it through a DNA test.
Dr. Yanofsky, a treating psychologist, diagnosed Blanca with Post-Traumatic Stress Disorder and a major depressive disorder, and Javier with adjustment reaction disorder and severe anxiety. They received therapy for an extended time, including at the time of trial. Blanca was projected to continue receiving therapy.
Before trial, appellants settled their case against Kaiser; they proceeded to trial against Greenwood. The case was submitted to the jury based upon two theories: breach of contract; and negligence, which required a finding as to whether Kaiser was responsible for any of appellants' harm. The special verdict form — approved by all parties — read in pertinent part as follows:
"Question No. 6.
"What are Blanca Diaz's damages caused by the conduct of Greenwood mortuary alleged to have breached the contract?
"a. Past economic damages $______
"b. Future economic damages $______
"c. Past noneconomic damages $______
"d. Future noneconomic damages $______" . . . [¶] . . . [¶] . . . [¶] . . . [¶] . . .
"Question No. 11.
"What are Blanca Diaz's damages?
"a. Past economic damages $______
"b. Future economic damages $______
"c. Past noneconomic damages $______
"d. Future noneconomic damages $______" . . .
"Question No. 12.
"Was Kaiser negligent?
"_______ Yes ________No . . .
"Question No. 13.
"Was Kaiser's negligence a substantial factor in causing harm to Blanca Diaz?
"________Yes __________No . . .
"Question No. 14.
"What percentage of responsibility for Blanca Diaz's harm do you assign to the following:
"Answer:
"To Greenwood Mortuary %_________
"To Kaiser Permanente %_________"
Questions 4 and 9, to which the jury gave identical answers, dealt with Javier's damages, and mirrored questions 6 and 11 respectively. Questions 15, and 16 asked regarding Kaiser's negligence for Javier's damages, mirroring questions 13, and 14 respectively.
During deliberations the jury sent the court a note regarding the special verdict form: "Re: Section 361 directions [Q[uestion]1] provided yes to 3 and 7 and 8 —— (scribble) do the [amounts] in # 6, a, b, c, d, need to match # 11 a, b, c, d? [Q[uestion]2] will they be awarded both times?" After consulting with the attorneys, the trial court answered the first question as follows: "Yes - the amounts should match." The court's answer to the second question was, "No, the damages are only awarded once."
The trial court had instructed the jury in the language of CACI No. 361 as follows: "Javier and Blanca Diaz have made claims against Greenwood Mortuary for breach of contract and negligence. If you decide that Javier and Blanca Diaz have proved both claims, the same damages that resulted from both claims can be awarded only once."
The jury returned a special verdict that awarded total damages of $468,675 to Blanca, and $154,125 to Javier for breach of contract, and the same amounts for negligence. The jury apportioned 50 percent of responsibility for the appellants' harm to Kaiser Permanente and 50 percent to Greenwood. Accordingly, judgment was entered against Greenwood in the amount of $241,447.28 for Blanca and $78,401.20 for Javier.
Greenwood moved for new trial on several grounds, including the award of non-economic damages was excessive and not supported by sufficient evidence; and, the jury engaged in misconduct by doubling appellants' awards in violation of the court's instructions. Greenwood submitted six juror declarations in support of the motion.
Beth Broderick's declaration stated: "During the deliberations on noneconomic damages we were reminded that someone, possibly [the trial judge], informed us that the amount of non-economic damages awarded to plaintiffs would be reduced by the same percentage as the liability apportioned to Kaiser Hospital. In order to offset the effect of the liability apportionment allocated to Kaiser the jury doubled the amount of non-economic damages asked for by plaintiffs' counsel to make sure the award to plaintiffs equaled the amount requested by counsel, rather than having it reduced by the percentage of the liability apportionment against Kaiser."
Jacqueline Dyer's declaration stated: "In the deliberations in this case, the jury determined the allocation of fault as between Kaiser and Greenwood before deciding the amount of non-economic damages to award to Mr. and Mrs. Diaz. Once the fault allocation was determined, we deliberated on the non-economic damages award. In evaluating the non-economic damages to grant the Diaz's, nine of us ultimately agreed to award the amount requested by the attorney for Mr. and Mrs. Diaz in his closing argument. Because of the way the Verdict Form was written, we decided it was necessary to double the award requested by plaintiff's counsel in order to offset the effect of the finding of comparative fault against Kaiser. [¶] During the deliberations on the amount to award for non-economic damages there was discussion that if the jury award was out of line the judge could reduce it."
Mary Harkins's declaration stated: "The jury deliberations in the case proceeded with the jurors deciding the questions of the liability of Greenwood and comparative fault of Kaiser before a decision was made on the amount of non-economic damages to award Mr. and Mrs. Diaz. After deciding that Kaiser was responsible for 50 [percent] of the negligence, the jury turned to addressing the questions concerning the amount of non-economic damages to award to Blanca Diaz and Javier Diaz. After nine of the jurors agreed on the amount of non-economic damages to award the Diaz's the deliberations turned to discussing the effect the comparative fault finding against Kaiser would have on the award. In discussing the effect of the comparative fault finding, one or more of the jurors reminded us that the amount of non-economic damages awarded to the Diaz's would be reduced by the same percentage as the comparative fault finding against Kaiser. Because the comparative fault finding was 50 [percent] we surmised that the court would reduce our award of non-economic damages by this percentage. Thus, it was decided to double the amount of the non-economic damages awarded to the Diaz's to address the effect of the reduction the court would make in the award on account of the comparative fault apportionment. A point raised in our discussions as to whether it was appropriate to double the amount of the non-economic damages award was that if what we did was inappropriate, the judge would deal with the matter after our deliberations concluded."
Debbie Hibbs's declaration stated, "The jury determined the allocation of fault as between Kaiser and Greenwood before deciding the amount of non-economic damages to award to Mr. and Mrs. Diaz. Once the allocation of fault between Kaiser and Greenwood was decided, we deliberated on the amount of non-economic damages to award plaintiffs. Nine jurors ultimately agreed to award the amount of non-economic damages requested by the attorney for Mr. and Mrs. Diaz in his closing argument. At one time [the trial judge] told us that the award of non-economic damages would be reduced by the percentage of fault attributed to Kaiser, so we decided to double our award to offset the effect of the reduction attributed to our comparative fault allocation."
Heidi James's declaration stated, "A concern of many jurors during the deliberations on non-economic damages involved the impact the liability apportionment would have on the verdict. A majority of the jurors concluded that the amount the plaintiffs' attorney sought in his argument on non-economic damages was a reasonable sum to award, but they concluded this amount should be doubled so that plaintiffs would receive the amount their counsel requested after the reduction was made because of the comparative fault assessed against Kaiser."
Margaret Kesinger's declaration stated, "At one time [the trial judge] told us that the award of non-economic damages would be reduced by the percentage of fault attributed to Kaiser, so we decided to double our award to offset the effect of the reduction attributed to our comparative fault allocation. Part of the discussion on doubling the award involved the fact we did not know the amount Kaiser paid in settlement with plaintiffs. Some jurors commented that they might award less if they knew the amount of the Kaiser settlement."
The trial court granted the motion for new trial on the grounds the jury had committed misconduct by doubling the noneconomic damages award, ruling: "The jury received both CACI [No.] 405 (406 as [mis-numbered]) on apportionment of liability and CACI [No.] 3926 on the effect of the Kaiser settlement. The jury's proper role was to find the amount of damages caused by the injuries without regard to a comparative fault reduction or settlement deduction. Doubling non-economic damages to get around the application of the principles of comparative fault defeats the purpose of the principles of comparative fault."
The trial court instructed the jury in the language of CACI No. 405 as follows: "Javier and Blanca Diaz claim that they were harmed by [Greenwood's] negligence. To establish this claim, Javier and Blanca Diaz must prove all of the following: One, that [Greenwood] was negligent; two, that Javier and Blanca Diaz were harmed; and three, that [Greenwood's] negligence was a substantial factor in causing Javier and Blanca Appellants harm."
The trial court instructed the jury in the language of CACI No. 3926 as follows: You have heard evidence that Javier Diaz and Blanca Diaz have settled their claim against Kaiser Permanente. Your award of damages to Javier Diaz and Blanca Diaz should be made without considering any amount that they may have received under this settlement. After you have returned your verdict, I will make the proper deduction from your award of damages." A different instruction stated, "You have heard evidence that there was a settlement between Javier and Blanca Diaz and Kaiser Permanente. You must not consider this settlement to determine responsibility for any harm."
DISCUSSION
Appellants contend the trial court erred in admitting the juror declarations, which "establish that the jurors were conscientiously attempting to apply the instructions on comparative negligence in determining the appropriate damages. The jury's question on duplicative damages during deliberations also demonstrates that it was sincerely attempting to apply and follow the court's instructions." Greenwood counters that the jury's questions "reflect, if anything, a predicate for their ultimate improper doubling of damages." Greenwood relies on Krouse v. Graham (1977) 19 Cal.3d 59 (Krouse) for its contention the declarations were admissible and the jury engaged in prejudicial misconduct.
"In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial." (Sierra View Local Health Care Dist. v. Sierra View Medical Plaza Associates (2005) 126 Cal.App.4th 478, 484.)
"In reviewing the trial court's ruling on a motion for new trial, we accept the trial court's credibility determinations if supported by substantial evidence. [Citation.] 'Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court's independent determination.' " (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 507-508, fn. omitted (Enyart).) The trial court "is accorded a wide discretion in ruling on a motion for new trial and . . . the exercise of this discretion is given great deference on appeal." (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.)
Section 1150, subdivision (a) states: "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 explains that section 1150 makes a proper distinction between " 'proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved.' [Citation.] . . . 'The only improper influences that may be proved under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.' " (Krouse, supra, 19 Cal.3d at p. 80.)
"In Krouse the juror declarations suggested the jury knowingly and expressly agreed to inflate damages improperly by including attorney fees. [Citation.] The Supreme Court in Krouse remanded the matter because the juror declarations were inconclusive about the nature and extent of any open discussion or agreement among the jurors about the matter of attorney fees; the declarations raised the possibility of overt acts by jurors which on further investigation might verify the statements in the declarations." (Ford v. Bennacka (1990) 226 Cal.App.3d 330, 336.) Krouse held that the trial court should admit "inconclusive" declarations in their entirety and consider the admissible portions thereof in ruling on the motion for a new trial. However, the trial court must disregard inadmissible portions. (Hasson v. Ford Motor Company (1982) 32 Cal.3d 388, 415, fn. 8.)
The Krouse court determined the specific jury declarations in that case were admissible because they alleged " 'several jurors commented' on their belief that plaintiffs' counsel would be paid one-third of the total award. The declarations further recite that the jury 'considered' this belief in its awards to the . . . plaintiffs, and that the award . . . was 'determined' by [a specific formula]." (Krouse, supra, 19 Cal.3d at p. 80.) The court reasoned that the declarations, taken together, raised a serious question regarding the possibility the jury's verdict was inflated to compensate the plaintiff for her attorney fees. (Id. at p. 81-82.)
Here, the supporting juror declarations submitted by Greenwood are like those held admissible in Krouse because they reveal overt discussions among the jurors concerning their agreement to double the non-economic damage award. For example, one declaration stated, "Part of the discussion on doubling the award involved the fact we did not know the amount Kaiser paid in settlement with plaintiffs. Some jurors commented that they might award less if they knew the amount of the Kaiser settlement." (Emphasis added.) Another declaration stated, "In discussing the effect of the comparative fault finding, one or more of the jurors reminded us that the amount of non-economic damages awarded to the Diaz's would be reduced by the same percentage as the comparative fault finding against Kaiser." (Emphasis added.) The trial court did not abuse its discretion in admitting the declarations because they pointed out objectively verifiable facts regarding the jurors' non-economic damages verdict. "The fact that such comments were made is overt conduct, objectively ascertainable and corroborated by other jurors." (Tramell v. McDonnell Douglas Corp. (1984) 163 Cal.App.3d 157, 172.)
"Juror misconduct raises a presumption of prejudice, and unless the prevailing party rebuts the presumption by showing the misconduct was harmless, a new trial should be granted." (Enyart, supra, 76 Cal.App.4that p. 507.) Here, appellants do not contend they demonstrated harmlessness in the trial court. Rather, they deny the jury committed misconduct at all, contending, "Properly construed, the declarations merely establish that the jurors doubled Greenwood's 50 percent portion of the non-economic damages to ensure that Greenwood would ultimately pay its proper share after the 50 percent comparative fault reduction." But the declarations do not support this contention. Specifically, the jurors stated they agreed to double appellants' awards to "offset" the reduction in the award resulting from the settlement agreement with Kaiser. The trial court instructed the jury not to consider the settlement with Kaiser because the court alone would make adjustments in the award to account for the settlement. Nonetheless, the jury ignored the instructions and elected to factor in the Kaiser settlement in the final award. This was misconduct, and it was not harmless because it doubled the amount Greenwood was required to pay appellants. Accordingly, the trial court did not err in granting the new trial motion, although it should have been limited to damages. (Schelbauer v. Butler Manufacturing. Co. (1984) 35 Cal.3d 442, 447.)
Following oral argument, we asked the parties for briefing regarding whether the new trial could be limited to the issue of damages.
Appellants contend the jury sought to comply with the trial court's answers to the jury's questions regarding damages. The parties did not raise this issue in the context of the new trial motion, and possibly the issue would have been regarded as invited error and waived because the court's answers were approved by counsel for all parties. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685 [" '[u]nder the doctrine of invited error, where a party, by his conduct, induces the commission of an error, he is estopped from asserting it as grounds for reversal . . . Similarly an appellant may waive his right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure objected to on appeal ' "].) The contention may not be raised for the first time on appeal. (See Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249 [points not asserted below or considered by the trial court are deemed waived and will not be considered for the first time on appeal].)
In any event, even if the issue of the court's answer to the jury were not waived, it would not change our analysis. We note that the trial court's answer to the jury's question was incorrect. The type of damages recoverable in a breach of contract cause of action are not the same damages recoverable in an action for negligence. Even assuming the damages were the same — as suggested by the special verdict form — the amounts determined by the jury in response to questions 6 and 11 would only be the same if the jury concluded Kaiser had no liability for the harm caused to appellants. However, the jury found Kaiser was responsible for 50 percent of the liability for appellants' harm. Appellants have shown no logical nexus between the court's answers and the jury's decision to double damages against Greenwood, and we see none. Most tellingly, none of the six juror declarations refer to the court's answers to their questions, or claim the jurors were trying to reconcile the court's answers to their questions with the jury instructions. The record here establishes the jury committed misconduct by knowingly rejecting the court's instructions, and the misconduct was prejudicial.
DISPOSITION
The order granting new trial is modified to provide that the new trial shall be limited to the issue of damages; as so modified the order is affirmed. Each party is to bear its own costs on appeal.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.