Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 04CC02204. Sheila Fell, Judge.
Horvitz & Levy, Peter Abrahams and Daniel J. Gonzalez; Baker, Keener & Nahra, Robert C. Baker and Kenneth F. Spencer for Defendants and Appellants.
Aitken, Aitken & Cohn, Wylie A. Aitken, Christopher R. Aitken and Casey R. Johnson for Plaintiffs and Appellants.
OPINION
O’LEARY, J.
In this wrongful death case, a jury returned a verdict awarding the plaintiffs (the wife and children of the decedent) $961,899 in economic damages and $1 million in noneconomic damages. The trial court subsequently granted the plaintiffs’ motion for new trial (Code Civ. Proc., § 657) due to, among other things, jury misconduct and attorney misconduct. The defendants appeal contending the trial court abused its discretion in granting the motion for new trial. The plaintiffs filed a protective cross-appeal from the original judgment contending jury misconduct and attorney misconduct led to an inadequate damages award. We conclude the new trial order was not an abuse of the trial court’s discretion and affirm the order. Accordingly, we need not consider the issues raised in the plaintiffs’ cross-appeal.
All statutory references are to the Code of Civil Procedure, unless otherwise indicated.
I
FACTS AND PROCEDURE
Defendant Mario Chairez owns and operates Chairez & Sons Trucking, and employed defendant Jesus Ernie Zendejas as a truck driver. David Huie, Sr., was killed in a fiery accident caused when Zendejas, acting in the course and scope of his employment with Chairez transporting a load of sod for Southland Sod Farms (Southland), rear-ended David Huie’s car as he was stopped at a red light. Zendejas was under the influence of methamphetamine at the time of the accident.
David Huie was survived by his wife of 40 years, Brenda Huie, and his two children, David Huie, Jr., then age 19, and Monica Huie, then age 14 (hereafter, sometimes referred to collectively as the Plaintiffs). The Plaintiffs filed this wrongful death action against Chairez, Zendejas, and Southland. Chairez and Zendejas were represented by the same counsel at trial. At the commencement of trial, Chairez stipulated to liability, but Zendejas did not. Southland was dismissed by the Plaintiffs at the beginning of trial, and jurors were instructed to not speculate on how the matter as to Southland was resolved and to not consider it during deliberations.
The trial court granted several in limine motions concerning evidence of damages. David and Brenda Huie owned and operated a highly successful forklift business. David Huie handled the sales side of the business; Brenda Huie handled the financial affairs of the business. The court granted the Plaintiffs’ motion to preclude Chairez from introducing evidence that after David Huie died, Brenda Huie hired someone to take over his duties in the family business at a salary of $65,000. Chairez’s attorney wanted to argue that the large salary David Huie was taking from the family business was attributable to return on his investment in the business, not just a salary for his services to the business. Conversely, the court also precluded the Plaintiffs from introducing evidence that David Huie’s earning potential was more than the salary he was drawing from the business at the time of his death—the Plaintiffs had wanted to argue that Brenda Huie’s salary was artificially inflated and not reflective of her actual services to the business as bookkeeper and by allocating so much money to Brenda Huie, the couple was actually understating David Huie’s earnings. Finally, the court excluded evidence of the financial condition of Chairez or his business, or how the instant action had affected them financially.
At trial, the Plaintiffs put on evidence concerning the circumstances surrounding the collision, but most of the trial was devoted to damages. The Plaintiffs’ put on evidence about the forklift business and that, as the one who handled its financial affairs, Brenda Huie would decide how much each would take from the business in salary. They took equal sums as salary—the year before David Huie’s death, he and Brenda Huie each took a $212,000 salary.
The Plaintiffs’ expert economist testified the lost financial support to the family due to David Huie’s death was between $3,602,551, based on the average of David Huie’s last three years’ salary ($184,231), and $4,055,639, based on David Huie’s salary the year before he died ($212,000). The expert calculated lost future income through David Huie’s normal life expectancy of 80.
Chairez’s expert economist set the Plaintiffs’ lost past and future financial support at $961,900. He calculated the family’s lost future income from David Huie through age 67 1/2, the normal work life expectancy of a person David Huie’s age. The defense expert based his figure on the average salary for David Huie’s last three working years. Chairez’s expert also factored in David Huie’s own personal consumption—e.g., the cost of his hobbies, entertainment, vintage car collecting, sailboats, and model airplanes. The expert set a personal consumption factor of about 10.2 percent.
The Plaintiffs also introduced extensive and uncontradicted evidence concerning their good relationships with David Huie. The evidence was that David Huie was a loving and devoted father and husband. He was very close to his children, saw them daily, took them to school, and attended all their extracurricular activities. David Huie and Brenda Huie had been married for 40 years, started the family business together, and David Huie always protected and took care of Brenda Huie. His life expectancy at the time of his death was about 18 years.
Over the Plaintiffs’ objection, Chairez was called as a witness for the defense and was allowed to testify he was 32 years old and had started his trucking business three years after graduating from high school.
In closing argument, the Plaintiffs’ attorney argued for an award of economic damages in the range of $2.2 million to $3.2 million. He suggested noneconomic damages should be based on what David Huie earned in a year ($212,000) over his life expectancy of about 20 years—Brenda Huie should be awarded an amount equal to that (about $4.2 million) and each child should be awarded one-half the lost earnings (about $2.1 million each).
In his closing argument, Chairez’s attorney argued the Plaintiffs really would suffer no lost future support as a result of David Huie’s death because Brenda Huie now owned 100 percent of the family business. (The court sustained the Plaintiffs’ objection to this argument.) Nonetheless, if there was a loss of future support, it should be based on the figures given by Chairez’s expert and the total lost past and future support was $961,900.
Chairez’s attorney argued noneconomic damages should be set at $1 million, not the over $8 million suggested by the Plaintiffs’ attorney. He criticized the Plaintiffs’ attorney’s argument that noneconomic damages should be based on the lost earnings, stating counsel in effect was asserting that rich people (like the Plaintiffs’ decedent) were worth more than poor people. Counsel gave as an example, Chairez, who counsel said had three children, and argued hypothetically that were Chairez the 60-year-old decedent, with a salary of only $30,000 a year and a life expectancy of 20 years, then according to the Plaintiffs’ attorney’s argument, Chairez’s family would only get $600,000 in noneconomic damages. He asked the jury to consider, “Do the rich, do they mean more to their families in terms of emotional support?” Defense counsel conceded that Zendejas was negligent, and “there is no question that he was a substantial factor in causing the death of [David Huie.]”
The jury was given a special verdict form comprised of four questions. The first two concerned the negligence of Zendejas—was he negligent and was his negligence the cause of harm to the Plaintiffs. The second two addressed the question of damages, directing the jurors to answer in light of Chairez’s admission of liability and without regard to how they answered questions concerning Zendejas’s negligence. The jury returned a verdict finding Zendejas negligent and a cause of the Plaintiffs’ harm. It awarded the Plaintiffs collectively $961,899 in economic damages and $1 million in noneconomic damages.
Although the jury was unanimous as to the award of economic damages, three jurors had voted against the award of noneconomic damages—Juror No. 2 (Anita R.), Juror No. 3 (William H.) and Juror No. 12 (Colton M.). Additionally, Juror No. 2, voted Zendejas was negligent, but his negligence did not cause any harm to the plaintiffs. A fourth juror, Juror No. 10 (George T.), voted Zendejas was not negligent.
Motion for New Trial
The Plaintiffs filed a motion for new trial stating 13 grounds, including: jury misconduct and irregularity of the proceedings of the jury by which the Plaintiffs were prevented from having a fair trial; irregularity of the proceedings of the Defendants by which the Plaintiffs were prevented from having a fair trial (i.e., attorney misconduct); and inadequate damages.
The gist of the claimed jury misconduct was that some jurors had concealed in voir dire their bias against awarding noneconomic damages. Additionally, during deliberations jurors improperly speculated as to the dismissal of Southland, the availability of insurance coverage for Chairez, and the disparity in the financial status between Chairez and the Plaintiffs. The gist of the claimed attorney misconduct was that defense counsel played to the economic prejudices of the jurors, violating several of the court’s in limine rulings.
The Jurors’ Declarations
The Plaintiffs submitted declarations from Juror No. 6 (Lori C.) and Juror No. 5 (Cindy H.) stating that during deliberations, Jurors Anita R., William H., and Colton M., stated they would not award any noneconomic damages and voted for $0 for noneconomic damages. William H., stated he did not believe in ever awarding noneconomic damages, i.e., there were no circumstances that would ever warrant such an award. Additionally, William H. and Colton M. stated the family suffered no economic loss as a result of David Huie’s death because Brenda Huie now owned the family business and she could replace David Huie in the business. The jurors stated Juror George T. (who did vote for the damage award), voted that Zendejas was not negligent. Jurors George T. and Colton M. made numerous comments about the Plaintiffs’ affluence and said a large award could put Chairez out of business. Other jurors also commented on the Plaintiffs’ affluent lifestyles, said Chairez likely did not have enough insurance to cover a large judgment, and said Chairez could go bankrupt if too much money was awarded to the Plaintiffs. Juror Anita R. told jurors liability insurance was so expensive her husband did not carry it for his business and he would go out of business if something similar happened to him. Jurors George T., William H., and Colton M., all said they were sure Southland had settled and the Plaintiffs had probably already received $1 million from Southland. Several jurors commented that they did not like that the Plaintiffs’ attorney “objected so much[]” and felt the trial judge treated the defense attorney unfairly and “kept ‘cutting the defense off at the knees.’”
The Plaintiffs’ trial attorney submitted his declaration attaching the reporter’s transcript from jury voir dire noting his questions to prospective jurors concerning the award of noneconomic damages, asking jurors if they had any resistance to setting and making an award for “monetary value for the loss of a husband and the loss of a father . . . does anyone have a belief that that is not an appropriate thing to do . . . ?” The jurors’ responses were negative.
In opposition to the new trial motion, Chairez submitted declarations from three jurors. Juror No. 8 (Herly A.), agreed jurors had talked about a possible settlement by Southland, but stated the jury did not consider those comments in reaching its verdict. Some jurors commented on the availability of insurance and about Chairez possibly going bankrupt, but other jurors admonished such matters were not to be considered. The jury did not consider the availability of insurance or possibility of bankruptcy in reaching its verdict. Juror No. 1 (Roshelli G.), reiterated Herly A.’s comments and added that when Juror Anita R. made her comments about her husband’s business, others admonished her the financial impact an award would have on Chairez was not to be considered. Juror William H. submitted his declaration denying that he said he would not award noneconomic damages under any circumstances; he said he would not award them under these circumstances. William H. also stated that jurors’ comments concerning the possibility of a settlement by Southland and the availability of insurance were not considered by the jury in reaching the verdict.
The Ruling
The court granted the Plaintiffs’ motion for new trial due to “many prejudicial occurrences during trial including . . . [¶] 1. Irregularity in the proceedings of the jury by which the plaintiffs were prevented from having a fair trial: members of the jury failed to disclose their existing biases against awarding non-economic damages, which biases were exhibited during deliberations; [¶] 2. Irregularity in the proceedings of the defendant by which the plaintiffs were prevented from having a fair trial: Counsel for defendant ignored a number of the [c]ourt’s in limine rulings and introduced argument and testimony which presented highly prejudicial and prohibited information to the jury; [¶] 3. Misconduct of the jury: members of the jury allowed their own personal experiences and biases to influence the verdict; [¶] 4. Inadequate damages: the findings of the jury were significantly low and not supported by the evidence.”
DISCUSSION
1. Jury Misconduct
Chairez contends the court erred by granting a new trial due to jury misconduct. We find no error.
a. Standard of Review/Adequacy of Statement of Reasons
“The authority of a trial court in this state to grant a new trial is established and circumscribed by statute. [Citation.] Section 657 sets out seven grounds for such a motion: (1) ‘Irregularity in the proceedings’; (2) ‘Misconduct of the jury’; (3) ‘Accident or surprise’; (4) ‘Newly discovered evidence’; (5) ‘Excessive or inadequate damages’; (6) ‘Insufficiency of the evidence’; and (7) ‘Error in law.’” (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633 (Oakland Raiders).)
An order granting a motion for new trial is generally reviewed only for an abuse of discretion. “‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside. [Citations.]’ [Citation.]” (Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495, 1506, italics added; see also Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 109 (Weathers).)
An exception to the abuse of discretion standard of review exists when the trial court fails to give an adequate statement of its reasons for ordering a new trial. Section 657 specifically requires if the new trial motion is granted, “[the order] must state the ground or grounds relied upon by the court, and may contain the specification of reasons.” “The word ‘ground’ refers to any of the seven grounds listed in section 657. [Citation.] A statement of grounds that reasonably approximates the statutory language is sufficient. [Citations.] The statement of ‘reasons,’ on the other hand, should be specific enough to facilitate appellate review and avoid any need for the appellate court to rely on inference or speculation. [Citations.]” (Oakland Raiders, supra, 41 Cal.4th at p. 634.)
When the trial court’s order granting new trial specifies jury misconduct as the “‘ground,’” but “fails to specify the reasons for that conclusion,” then the usual deferential abuse of discretion standard does not apply. (Oakland Raiders, supra, 41 Cal.4th at p. 636, italics added.) Instead, the appellate court conducts an independent review of the order granting new trial. (Ibid.)
In Oakland Raiders, supra, 41 Cal.4th at pages 640-641, the Supreme Court explained what is meant by independent review. When there is conflicting evidence on the threshold issue of whether there was in fact juror misconduct, the appellate court may not resolve conflicts in the evidence—the fact there is a conflict at all means the moving party has not satisfied its burden to persuade the reviewing court there was juror misconduct. (Id. at pp. 640-641.) But, the Supreme Court specifically did not extend this reasoning to the next issue—whether the juror misconduct was prejudicial. Because we conclude the court’s statement of reasons was adequate, we need not speculate on the omission.
Chairez contends the trial court’s order granting a new trial specified its grounds, i.e., juror misconduct, but failed to adequately state its reasons for that conclusion. Accordingly, he argues we must conduct an independent review. We disagree.
The leading case on this subject, Mercer v. Perez (1968) 68 Cal.2d 104 (Mercer), requires only that the trial court’s order “furnishes a concise but clear statement of the reasons” for granting a new trial. (Id. at p. 115.) “No hard and fast rule can be laid down as to the content of such a specification, and it will necessarily vary according to the facts and circumstances of each case.” (Ibid.)
Mercer explains the two policy reasons behind requiring a specification of reasons prepared by the trial court (and not by the either of the parties) for granting a new trial: (1) to encourage judicial deliberation and to discourage hasty and ill-considered decisions; and (2) to “make the right to appeal from the order more meaningful.” (Mercer, supra, 68 Cal.2d at p. 113; see also Oakland Raiders, supra, 41 Cal.4th at p. 636.) Mercer explained the latter reason as follows: “The scope of review is thus narrowed to more manageable proportions: the appellant need only address himself to those asserted deficiencies in the proof which are specified as reasons for the order, and the reviewing court need only determine if there is a substantial basis for finding such a deficiency in any of the respects specified.” (Mercer, supra, 68 Cal.2d at p. 115.)
In Mercer, the new trial order under review “recited only that ‘[t]he motion for a new trial is granted. The court is of the definite opinion, after analyzing the evidence in this case, that there has been a definite miscarriage of justice. The court is of the opinion that the jury trying this case should have rendered a verdict for the plaintiffs, and against the defendants.’” (Mercer, supra, 68 Cal.2d at p. 108.) The Supreme Court concluded the order was inadequate because although it stated the grounds for granting new trial, but “wholly fail[ed] to specify the court’s reasons for doing so.” (Ibid.) By way of contrast, in Romero v. Riggs (1994) 24 Cal.App.4th 117, the trial court granted a new trial because it disagreed with the jury’s finding regarding causation (the jury found the defendant optometrist negligent, but found the negligence did not cause plaintiff’s vision loss). The trial court issued a very brief statement of reasons stating essentially that “‘overwhelming evidence’” established defendant’s failure to diagnose and treat glaucoma caused plaintiff’s vision loss. (Id. at p. 121.) The appellate court found the specification of reasons was “fully adequate both to guide our review and to supply a substantial basis for the order.” (Id. at p. 124.)
We conclude under the circumstances the trial court here adequately specified its reasons for granting new trial due to juror misconduct. Although stated under two different jury-related grounds (irregularities in the proceedings of the jury and misconduct of the jury), the court was clear as to its reasons: “[m]embers of the jury failed to disclose their existing biases against awarding non-economic damages,” and “[m]embers of the jury allowed their own personal experiences and biases to influence the verdict[.]” Because the court stated its reasons for granting new trial, we apply the abuse of discretion standard of review.
b. No Abuse of Discretion
When a party seeks a new trial on the ground of juror misconduct, the court must first determine whether the supporting affidavits are admissible. (Evid. Code, § 1150, subd. (a).) If the evidence is admissible, the court must consider whether the facts establish misconduct. If misconduct is established, the court must determine whether it was prejudicial. (People v. Perez (1992) 4 Cal.App.4th 893, 906.) “A trial court has broad discretion in ruling on each of these issues, and its rulings will not be disturbed absent [an] abuse of discretion.” (People v. Dorsey (1995) 34 Cal.App.4th 694, 704.)
Juror affidavits may be used to impeach a verdict as long as they refer to objectively ascertainable statements or conduct that likely influenced the verdict improperly, and not the subjective reasoning of jurors. (Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, 910; Evid. Code, § 1150, subd. (a).) The Plaintiffs submitted two juror affidavits detailing the alleged misconduct. Both jurors declared that during deliberations, three other jurors (Anita R., William H., and Colton M.) stated they would not award any noneconomic damages and voted for $0 for noneconomic damages; one of those jurors, William H., stated he did not believe in ever awarding noneconomic damages. Jurors made statements about the Plaintiffs’ wealth, the financial effect of a substantial judgment against Chairez, and whether he had sufficient insurance to cover such an award. One juror made comments about her husband not carrying liability insurance for his business because of its expense and said he would go out of business if something similar happened to him. Jurors made comments about Southland having settled for at least $1 million. These juror affidavits were admissible because they contained objectively verifiable statements by jurors and did not speculate on the subjective reasoning of the jurors. Chairez’s juror declarations largely confirmed that the various statements were in fact made during deliberations. The only notable exception was that Juror William H. denied saying he would never award noneconomic damages—only that such damages were not justified in this case. But, we are bound by the trial court’s resolution of the conflicting evidence. (Weathers, supra, 5 Cal.3d at p. 108; Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 507.)
Having determined the juror affidavits contained admissible evidence, we must next consider if the court abused its discretion by finding misconduct. It did not. There is evidence supporting the trial court’s conclusion that some jurors concealed their biases against awarding noneconomic damages and improperly allowed their own personal experiences and biases to influence the verdict.
Chairez argues the Plaintiffs’ attorney never specifically asked prospective jurors if they held any such biases and only vaguely brought up the subject of noneconomic damages in voir dire. Nonsense. During voir dire, the Plaintiffs’ attorney asked questions about the prospective jurors’ willingness “to determine a . . . value for the loss of another person’s care, comfort, counseling, guidance, and support, both as a husband and as a father.” He asked the jurors generally and specifically if they believed it inappropriate “[to] make a determination as to a monetary value for the loss of [a] husband and the loss of a father for the two children . . . .” None of the three jurors indicated they had any reluctance to make such an award.
At trial, the Plaintiffs introduced uncontradicted evidence concerning their relationships with David Huie—that he was a loving and devoted father and husband, very close to his children, happily married to Brenda Huie for 40 years. The jury was instructed that in awarding damages, it should use its judgment to decide a reasonable amount of noneconomic damages “based on the evidence and your common sense.” Chairez’s attorney never suggested the jury should not award noneconomic damages, but argued for a lesser amount than the Plaintiffs sought. But, the three jurors voted against any award of noneconomic damages in this case. The trial court could reasonably conclude the only explanation for that refusal was an undisclosed bias against making such an award.
A “juror’s intentional concealment of relevant facts or giving false answers during the voir dire examination constitutes misconduct and raises a presumption of prejudice.” (Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 189.) Tapia v. Barker (1984) 160 Cal.App.3d 761 (Tapia), is instructive. Plaintiff in that case was an immigrant who was injured in a car accident. The jury returned a verdict awarding him $12,706 in damages and finding him 50 percent negligent. The appellate court reversed the judgment and ordered a new trial finding the verdict was tainted by jury misconduct. In voir dire, jurors were asked about their ability to award damages for pain and suffering. They were also asked if they could be fair and impartial given plaintiff’s ethnic background. But, in deliberations, several jurors indicated they did not think a dollar amount could be set for pain and suffering. Jurors discussed their beliefs that such claims were the reason for high insurance rates. One juror argued the verdict (particularly the pain and suffering award) should be low to “‘help protect ourselves from exorbitant damage claims and keep our insurance rates down . . . .’” (Id. at p. 764.) Some jurors made derogatory comments about plaintiff’s ethnicity. Other jurors made comments speculating that plaintiff was getting some other benefits as a result of the accident, such as disability, unemployment, or welfare, and thought the award should be reduced to account for those benefits. One juror said she disbelieved the severity of plaintiff’s injuries saying she had been in a far worse car accident and was not injured. The court found the juror’s comments demonstrated a bias against awarding pain and suffering damages and against plaintiff’s ethnicity that was concealed on voir dire. (Id. at p. 766.)
Here, in addition to three jurors’ concealing a bias against awarding noneconomic damages, there was also misconduct in jurors’ allowing personal experiences and biases to influence the verdict. For example, Juror Anita R. told fellow jurors about her husband’s inability to afford liability insurance and the detrimental effect a judgment against him would have on his business. (See Smith v. Covell (1980) 100 Cal.App.3d 947, 952-953 [juror’s act of telling other jurors about his personal experiences with injury similar to plaintiff’s injury was evidence of concealed bias and was improper conveying of outside information to jury].) Some jurors discussed whether Chairez had adequate insurance to cover a large damage award, speculated on the financial impact an award would have on Chairez, and speculated on whether Southland had settled and how much such a settlement might have been. The jury was instructed it was not to consider whether any of the parties had insurance. It was also told it must follow the law in reaching its verdict and it “must not let bias, sympathy, prejudice, or public opinion influence [its] decision.” Again, Tapia is instructive. In that case, in addition to the jury misconduct in concealing a bias against pain and suffering damage awards, the court also found misconduct in the juror’s speculation about other sources of compensation, discussions about high insurance rates, and remarks about their personal experiences. (Tapia, supra, 160 Cal.App.3d at p. 766.)
Chairez argues these matters do not constitute misconduct because his juror affidavits confirmed the jurors did not allow these improper statements to influence the verdict. But, such declarations are inadmissible to the extent they purport to attest to the affect the statements had on jurors. Pursuant to Evidence Code section 1150, jurors may testify to “‘overt acts, objectively ascertainable,’” because they are subject to corroboration, but may not testify to the “‘subjective reasoning processes of the individual juror, which can be neither corroborated or disproved[.]’” (Krouse v. Graham (1977) 19 Cal.3d 59, 80.)
Having concluded the trial court did not abuse its discretion by finding juror misconduct, we turn to the third question: was the misconduct prejudicial? “A showing of misconduct creates a presumption of prejudice, which in turn ‘may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct. [Citations.] Some of the factors to be considered when determining whether the presumption is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.’ [Citation.]” (McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 265.)
Our Supreme Court has made clear that on review of an order granting a new trial, the standard of review with respect to prejudice is abuse of discretion. (People v. Ault (2004) 33 Cal.4th 1250, 1271-1272 (Ault).) This is so because the trial court had all the evidence and conflicting affidavits before it and “was in the best position to evaluate the prejudicial effect of the alleged misconduct.” (City of Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d 384, 430; Ault, supra, 33 Cal.4th at p. 1271.)
We cannot say the trial court abused its discretion in finding the juror misconduct prejudicial. Chairez argues there is no possibility of prejudice because nine jurors voted for a $1 million economic damages award, conclusively showing the majority was not influenced by any concealed bias by the three who voted against any award. But, “Underlying our review is the obvious principle that a litigant in a jury trial has a constitutional right to a fair trial by 12 impartial jurors. [Citations.]” (Tapia, supra, 160 Cal.App.3d at p. 765.)
Furthermore, the juror misconduct went beyond three jurors who were opposed to awarding any noneconomic damages. In the course of deliberations, jurors improperly discussed the possibility that the Plaintiffs had already received a sizable settlement from Southland, that Chairez might not have adequate insurance to cover a larger award, and that a substantial judgment would force him to become bankrupt—all this coupled with jurors’ comments on the Plaintiffs’ affluence. The trial court could reasonably surmise jurors concluded the Plaintiffs were not in need of larger award, regardless of whether the evidence justified it. Thus, although the award was by no means paltry, the court could reasonably find the jury misconduct may have affected the total award necessitating a new trial. Keeping in mind that we must affirm the new trial order “[s]o long as a reasonable or even fairly debatable justification under the law is shown . . . ” (Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495, 1506, italics added), we cannot say the trial court abused its discretion. Because we affirm the new trial order of the grounds of juror misconduct, we need not address the grounds stated in the trial court’s order, nor need we consider the issues raised by Plaintiffs’ protective cross-appeal.
DISPOSITION
The order is affirmed. The Plaintiffs are awarded their costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.