Opinion
D080692
10-17-2023
JERRY T. JONES, Plaintiff and Appellant, v. VALERIE BZDAWKA, Defendant and Respondent.
Rejali Law Firm and Omid Rejali, for Plaintiff and Appellant. Horvitz &Levy, Mark A. Kressel, Jonathan Z. Morris; Gates, Gonter, Guy, Proudfoot & Muench, and Jesse A. Allen, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of San Diego County, No. 37-2018-00031273-CU-PA-CTL Katherine A. Bacal, Judge.
Rejali Law Firm and Omid Rejali, for Plaintiff and Appellant.
Horvitz &Levy, Mark A. Kressel, Jonathan Z. Morris; Gates, Gonter, Guy, Proudfoot & Muench, and Jesse A. Allen, for Defendant and Respondent.
KELETY, J.
Jerry T. Jones contends the trial court erred in denying his motions for judgment notwithstanding the verdict (JNOV) and for a new trial, after a defense verdict in a vehicle-collision-based personal injury lawsuit. He argues that JNOV was necessary because insufficient evidence supported the verdict, and that a new trial is required because defense counsel and jurors engaged in prejudicial misconduct. We disagree. Hence we affirm.
I.
BACKGROUND
On June 26, 2016, two vehicles were traveling northbound in the high occupancy vehicle lane of an interstate freeway in San Diego. The first vehicle was a Cadillac limousine in which the driver, defendant Jonathan Presson, was transporting Jones, the sole passenger. The second vehicle was an Infiniti SUV in which Bzdawka was transporting her three-year old daughter. As the two vehicles were making their way, the front of Bzdawka's SUV made contact with the rear of Presson's limousine. Presson and Bzdawka pulled over to the shoulder of the median and exchanged information. Then each vehicle and its occupants continued on their respective ways.
Jones filed a complaint against Bzdawka, Presson, and the owner of the limousine, alleging negligence and contending that, "[a]s a result of [the] collision, . . . Jones . . . [had] suffered serious and permanent injuries, including a traumatic brain injury." Prior to trial, Presson and the limousine owner entered into a $25,000 settlement, the trial court granted their motion for a determination of good faith settlement, and Jones withdrew the allegation that the collision had caused him to suffer a traumatic brain injury. The case then proceeded to trial between Jones and Bzdawka.
After closing arguments, the jurors were given a verdict form, to which the parties had agreed, that called on them to state whether negligence on the part of Bzdawka had been "a substantial factor" in causing harm to Jones. During their deliberations, the jurors sent a note to the court asking: "Can we get clarification on the word 'substantial?'" With the agreement of counsel for both parties, the court replied by referring the jury to "the jury instructions-in particular, 430." Thereafter, the jury returned a verdict on the special verdict form, as follows:
"We, the jury in the above-entitled action, find the following special verdict on the question submitted to us as follows:
"Question No. 1: Was Valerie Bzdawka's negligence a substantial factor in causing harm to Jerry Jones? No."
The court entered judgment on the verdict; and, thereafter, Jones filed motions for judgment notwithstanding the verdict (JNOV) and for a new trial.
The motion for a JNOV was premised on Jones's contention that all the medical experts had testified that the collision injured him, that these were "the only witnesses that can address causation," that their testimony constituted "clear, positive, uncontradicted evidence" "that this crash [had] caused injury to [his] cervical spine," and that any testimony to the contrary by Bzdawka's biomechanical expert should be disregarded.
The motion for a new trial argued that Bzdawka's counsel and two jurors had engaged in misconduct.
The trial court denied both motions. Jones timely appealed from the judgment and from the order denying his motion for a new trial.
II.
DISCUSSION
A. Sufficiency of the Evidence Supporting the Judgment
Jones argues in his opening brief that "JNOV was warranted because insufficient evidence supports the jury's finding that he wasn't injured in the collision."
As can be seen from the wording of Question No. 1 on the special verdict form and from the jury's answer to that question (see ante), Jones's description in this appeal of "the jury's finding" is not an accurate rendition of the verdict. While it certainly is possible that all of the jurors concluded that Jones had not been injured in the collision, it also is possible that some or all of them concluded that Bzdawka had not been negligent or that Bzdawka had been negligent, and that Jones had in fact sustained an injury, but that the role of Bzdawka's negligence in causing Jones's injury was less than substantial.
1. Standard of Review
"When the sufficiency of the evidence to support a jury's finding of fact is raised, appellate courts apply the substantial evidence standard of review." (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) That is, we "consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment." (People v. Mincey (1992) 2 Cal.4th 408, 432. See also In re C.F. (2011) 193 Cal.App.4th 549, 553 [" 'On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.' "].)
2. The Evidence
At trial, the jury heard the testimony of twelve witnesses: the two drivers (Presson and Bzdawka); Jones, Jones's wife, and Jones's eldest son; four physicians; two biomechanical experts; and a private investigator.
Presson was deceased at the time of trial. The testimony the jury heard from him came by way of excerpts from his deposition.
a. Testimony of Presson, Jones, and Bzdwawka Regarding the Moment of the Collision
Presson, Jones, and Bzdawka each testified about the collision itself. They agreed the collision had occurred in heavy traffic. Presson testified that, at the time of the collision, the traffic "was bumper-to-bumper, stop-and-go," and that, "to the best of [his] recollection, [the limousine] was stopped" when it was struck by the SUV. Jones testified that, at the time of the collision, he and Presson "were in a traffic jam," "all the cars were stopped," and the limousine had been stopped for "a few minutes." Bzdawka testified "the traffic was stop and go."
On the topic of speed, Jones testified (as he had about the traffic) that no cars were moving at the time of the collision:
"Question: how did you know how fast you were going when the accident happened?
"Answer: We weren't going.
"Question: How did you know that?
"Answer: Because we were stopped.
"Question: How did you know that you were stopped?
"Answer: Because it looked like a parking lot. Four lanes of cars stopped, looked like a parking lot.
"Question: Was anybody moving?
"Answer: Nobody was moving. It was a traffic jam.
"Question: Not even 2 to 3 miles per hour and stopping?
"Answer: Nothing.
"Question: No movement whatsoever?
"Answer: Looked like a parking lot."
Bzdawka offered two different estimates regarding speed. In an interrogatory response that Jones's counsel read to the jury, Bzdawka stated that, at the time of the collision, "traffic was progressing at 5- to 10-miles per hour at most." In a passage from Bzdawka's deposition that Jones's counsel also read to the jury, Bzdawka testified that "my best guess now is five [miles per hour] or below."
On the topic of impact, Presson characterized the collision as "incredibly minor," "so minor that it was nothing," and "seemingly a nothing incident." He further testified that the impact was like "a parking lot tap," as "if you were parking a car-parallel parking the car, and you touch the bumper behind you." He also testified he recalled Jones inquiring as to what had happened: "My recollection was, as I pulled over, he said to me, 'Did we just get hit?' . . . as if he was unsure." Jones testified differently. Asked "How strong of an impact did it feel to you?" he answered: "It was pretty strong because I was dazed."
On the topic of property damage, Presson testified at one point during the deposition testimony that was read to the jury that "there was no visible damage on my bumper" and, at another point in that testimony, that he "saw minimal to no damage on [his] car." Jones did not testify that he observed any damage. And Bzdawka testified that she did not see any damage on either vehicle.
b. Testimony of Jones and His Family Members Regarding the Collision's Effects on Jones
With respect to the aftermath of the collision, Jones testified that he was "dazed and confused" and feeling some pain immediately after the collision. He also testified that he nonetheless did not seek medical attention that day or during the remainder of his time visiting California. Instead he continued on his way in the limousine to join his wife and son for a preplanned, post-business-trip family vacation in Anaheim and Hollywood. The reason he did not seek medical attention at the time was "because [the trip] was all about my son" who had just graduated college; "it wasn't about me."
Jones also testified that, as the days progressed, he developed severe pain in his neck and shoulders, severe headaches, and migraines. He also stated that he became depressed and began feeling distant from his wife and children. His wife and son testified that he (Jones) had developed a short temper and become less able-bodied as compared with his temperament and physical abilities before the collision, and they otherwise tended to corroborate Jones's testimony with regard to a diminution in his physical capacity.
c. Testimony of Physicians
The jury received testimony from three of the physicians who Jones had consulted at times subsequent to the collision: his treating physician, David Hassman, M.D.; a pain management doctor, Uche Eneanyah, M.D.; and an orthopedic surgeon, William Logan Tontz, M.D. In addition, the jury received testimony from a neurosurgeon, Jonathan Schleimer, M.D., who had examined Jones on behalf of Bzdawka. The four physicians, each of whom had met with Jones and examined his medical records, agreed regarding some aspects of his medical situation. But they disagreed regarding other aspects-including medical diagnosis, treatment recommendation, and injury causation.
For example, on the topic of diagnosis: Dr. Tontz "diagnosed Mr. Jones with aggravation of cervical stenosis" and said that the aggravation was "permanent." However, Dr. Schleimer allowed only that Jones "could [have] sustain[ed] a cervical sprain or strain . . . as a result of the accident," but added that Jones could not have sustained any "neurological" injury from the accident and "disagree[d] [with Dr. Tontz's diagnosis that] there is a permanent aggravation."
On cross-examination, Jones's counsel unsuccessfully attempted in a variety of ways to prompt Dr. Schleimer to concede that Jones had been injured in the collision. For example, he asked Dr. Schleimer: "At what point did the diagnosis in your mind stop being a sprain or a strain?" But Dr. Schleimer responded by pointing out that he (Dr. Schleimer) was only "assuming there was a sprain and a strain." Then Jones's counsel followed up by embedding in a follow-up question an assumption that there had been a sprain and a strain. But Dr. Schleimer again corrected Jones's counsel, by reiterating that he (Dr. Schleimer) was "assuming . . . [Jones had] had a cervical strain." In other words, Dr. Schleimer said, he was "giv[ing] [Jones] the benefit of the doubt" that he had been injured in the collision. Then Jones's counsel came at the issue a third way, posing the more direct question: "You do agree in this collision . . . at least Mr. Jones suffered a sprain and a strain?" This time, Dr. Schleimer responded, perhaps with a hint of irritation, saying: "I already answered that . . . I already agreed to that."
On the topics of injury causation and treatment recommendations: Dr. Eneanyah said, "within a reasonable degree of medical probability . . . [Jones's] complaints were due to injuries suffered in the motor vehicle accident," and Dr. Tontz said "it [is] reasonably certain that Mr. Jones will require . . . surgery." But Dr. Schleimer said "there is no evidence that the accident is the cause of [Jones's] chronic symptomology" and added, "with reasonable probability," that Jones would not "require[] any future medical care related to this accident" and that, "if [Jones] does have surgery, it would not be accident related."
d. Testimony of Biomechanics Experts
Two biomechanics experts testified regarding biomechanical issues, and they, too, disagreed-in both methodology and result. Jones's expert, Dr. Arthur Croft, relied in large measure on medical records that stated that Jones had "described his head and neck flying back and forth" in the car at the moment of impact, and he (Dr. Croft) disregarded testimony of Presson, Jones, and Bzdawka regarding their perceptions of the speed(s) at which Bzdawka's SUV and traffic in general had been traveling at the time of the collision. Dr. Croft testified that in order for Jones's body to have moved in such a way as to cause his head and neck to fly back and forth at the moment of impact, the collision must have caused the speed of the limousine to increase from zero miles per hour to a velocity of between 5 and 9 miles per hour. Then, working backward, Dr. Croft further concluded that, in order to generate that change of velocity (Delta V) in the limousine, the SUV must have been traveling at between seven and 13 miles per hour when it struck the limousine. Dr. Croft also criticized the methodology of Bzdawka's biomechanics expert, Dr. Nicholas Carpenter, labeling as "specious" Dr. Carpenter's conclusion (as characterized in a question posed by Jones's counsel) "that the force[s] involved in this collision are equivalent to activities of daily living such as stepping off a [curb] or . . . flopping in a chair."
At trial, Jones did not testify as to any head movement when Bzdawka's vehicle made contact with the Cadillac. Instead, when asked "do you recall how your body may have moved in the car" at the moment of impact, he answered, "I am not really sure."
For his part, Dr. Carpenter substantially relied on: testimony from the vehicles' occupants as to "what kind of speed[s] did they think were involved"; the fact that, in the photographs he viewed, he "s[aw] no apparent damage to the [limousine]"; a repair estimate for the limousine that, according to Dr. Croft's testimony, totaled $607; and the fact that the manufacturer of the limousine had rated the strength of the bumper for the year and model of the limousine's manufacture as designed "to tolerate impact of up to two and a half miles per hour." So doing, Dr. Carpenter "estimated that the Delta V in this accident was not higher than [the] 2 to 3-mile per hour range." Then, working backward, Dr. Carpenter further concluded that, in order to generate that Delta V in the limousine, "the closing speed was likely in the range of 3 to 5 miles per hour or less." Based upon this conclusion, Dr. Carpenter testified that the resulting "force to the spine [was] well within the range of activities we experience in daily lives. Therefore, I conclude they did not make a mechanism of injury to this case." He compared the force from the accident as "within the range of less than what I would typically experience in my cervical spine in light of daily activities, walking[ ] around the block and things of that nature."
Dr. Croft conceded in his testimony that a Delta V in this range "wouldn't be very serious."
Dr. Croft, who also discussed closing speed or closing velocity, explained the concept as follows: "The closing velocity is also known as the differential Velocity. [I]f somebody is stopped at a stoplight when another person hits them at 10 miles an hour[, then] 10 miles an hour is the closing velocity. If they're mov[ing] at 2 miles an hour and they're hit with ten miles an hour, then the closing velocity is 8."
e. Additional Evidence
In addition to the testimony and other evidence described above, the jury was supplied with various other items of evidence as well. These other items of evidence included a set of photographs of the limousine and repair records for the limousine. They also included, on behalf of Bzdawka, testimony of a private investigator who had secretly followed Jones as he moved about in public during several days in December 2019 (approximately three and a half years after the collision) and observed and filmed Jones performing various activities. In addition, the jury viewed several minutes of excerpts from the film footage.
3. Analysis
In support of his contention that the evidence was insufficient to support the jury's finding on the Special Verdict Form that "Bzdawka's negligence" was not "a substantial factor in causing harm to Jerry Jones," Jones makes two assertions: first, that it is a "fact that even Bzdawka's expert [Dr. Schleimer] conceded that Jones had been injured in the collision;" and, second, "that . . . there was insufficient evidence to the contrary." We shall address each of these arguments in turn.
a. The Testimony of Dr. Schleimer Is Not What Jones Represents It to Be
During trial and beyond, Jones has expended substantial energy arguing that Dr. Schleimer conceded Jones had been injured in the collision. Indeed, on no less than four occasions during his brief closing argument, Jones's counsel argued that:
• "[A]ll of the doctors agree that Mr. Jones has been injured as a result of this collision."
• "[A]ll of the doctors agree that Mr. Jones[] was injured as result of his collision."
• "So again, all the doctors agree that Mr Jones was injured on June the 26, 2016 [in the] collision."
• "Again, both sides agree the collision caused Mr. Jones['s] injury."
Thereafter, Jones's counsel made the same argument twice in the brief he filed in support of his motion for JNOV:
• "All four medical doctors testified that this crash caused injury to Mr. Jones's cervical spine."
• "[All four medical experts . . . testified that Mr. Jones sustained an injury as a result of the crash."
Jones's counsel likewise made this argument three times in the brief he filed in support of his motion for a new trial:
• "At trial, medical experts for both parties testified that this crash did cause injury to Mr. Jones.”
• "Defense medical expert Dr. Schleimer concurred with Plaintiff's medical doctors as to causation."
• "All medical doctors testified that this crash caused injury to Mr. Jones's cervical spine."
Twice, in a pair of "declarations" that he signed (albeit not under oath) in support of these two motions, Jones's counsel again represented as a fact that "[a]ll medical providers testified that this crash caused injury to Plaintiff"; and now Jones makes the same argument on appeal.
But saying it is so does not make it so, and-irrespective of how fervently Jones and his counsel might wish it otherwise-no amount of repetition can change what Dr. Schleimer actually said.
What Dr. Schleimer actually said is not entirely free of ambiguity. We note in this regard that, viewed in isolation, his words-"I already answered that . . . I already agreed," in response to the question "[y]ou do agree [that] in this collision . . . at least Mr. Jones suffered a sprain and a strain?"-might reasonably be construed as a concession that the collision had in fact injured Jones. But evidence is not to be viewed in isolation. And viewed instead in the context of the repeated demurrals by Dr. Schleimer (discussed ante) that preceded these words, his answer could reasonably have been viewed by a jury (as it is by us) as the exasperated expression of a desire to move on, akin to: Yes, I've just told you twice that I did not conclude Jones was injured in the collision, but that I am nonetheless willing to answer hypothetical questions based on an assumption that he was.
b. Jones Has Waived His Substantial Evidence Argument
Simply stated, the substance of Dr. Schleimer's testimony was not as Jones now describes it to this court. In this respect, as in other respects discussed post, Jones has failed to acknowledge significant evidence unfavorable to his position.
This failure is fatal to Jones's substantial evidence argument, inasmuch as it is axiomatic that "[a]n appellant 'who cites and discusses only evidence in [his] favor fails to demonstrate any error and waives the contention that the evidence is insufficient to support the judgment.'" (Sanchez v. Martinez (2020) 54 Cal.App.5th 535, 548 [in citing only evidence in his favor, appellant forfeited his substantial evidence argument].)
As has been well-established in the case law: "[W]hen a losing party challenges the verdict for a lack of substantial evidence, they 'must set forth, discuss, and analyze all the evidence on [the pertinent] point[s], both favorable and unfavorable.' [Citations.] Appellants' 'fundamental obligation to this court, and a prerequisite to our consideration of their challenge' [citation] is to 'set forth the version of events most favorable to [respondent]' [citation]. 'Accordingly, if . . . 'some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.'" (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246. Accord, Doe v. Roman Catholic Archbishop of Cashel &Emly (2009) 177 Cal.App.4th 209, 218; Foreman &Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Here, Jones fails to discuss the relevant material evidence, resulting in a forfeiture of his contention of insufficient evidence.
c. In All Events, Substantial Evidence Supported the Verdict
Even if Jones's substantial evidence argument had not been waived, and even if it were true that all of the medical doctors had agreed that the collision injured Jones, this court-for at least two additional reasons-still would conclude that substantial evidence supported the jury's verdict.
First, the jury was at liberty to reject any and all of the medical doctors' testimony. Indeed, as the trial court instructed the jury in a jury instruction (CACI 219) to which Jones's counsel did not object: "You do not have to accept an expert's opinion. As with any other witness, it is up to you to decide whether you believe the expert's testimony and choose to use it as a basis for your decision. You may believe all, part, or none of an expert's testimony."
Second, in reviewing a verdict under the substantial evidence standard, it does not matter that some of the evidence presented to a jury might have supported the appellant's position. What the appellant must demonstrate is that no substantial evidence supported the appellee's position. (See Wolf v. Walt Disney Pictures &Television (2008) 162 Cal.App.4th 1107, 1138 [" 'A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.' "].)
As well-settled case law makes clear,"' "[w]e are bound by the rule that when 'a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.' [Citations.]" [Citation.] [A defendant] raising a claim of insufficiency of the evidence assumes a "daunting burden." [Citations.]' [Citation.] The test 'is simply whether there is substantial evidence in favor of the respondent. If this "substantial" evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld.'" (People v. Overstock.com, Inc. (2017) 12 Cal.App.5th 1064, 1079.)
Here we find more than sufficient grounds to justify a conclusion that substantial evidence supports the verdict. For instance, Jones's testimony that, at the time of the collision, "nobody was moving," "[n]ot even 2 to 3 miles per hour," and that the limousine had been stopped for "a few minutes" readily supports an inference that the speed at which Bzdawka's SUV was traveling could not have been rapid enough to cause an injury. Presson's testimony that Jones asked," 'Did we just get hit?' . . . as if he was unsure" supports a conclusion that the impact was almost too slight to even notice. The low amount of the repair estimate supports an inference that the impact must have been minimal. So, too, does Dr. Carpenter's testimony about Delta V. And Dr. Schleimer's testimony supports a conclusion that any injury would have been relatively minor, transient, and resolved within a mere matter of weeks.
As the trial court stated in ruling on the motion for JNOV:
"All the witnesses to the accident testified that it occurred at a very low speed. They were told the limousine incurred only very minor damage. [Jones] testified that he went on his vacation, including a trip to Disneyland, after the accident. [Jones] and his wife both testified that [Jones] did not seek medical care [while on vacation] in California. It is also undisputed that [Jones] did not start getting treatment until two months after the accident. Although [Jones] testified as to the reason for the delay in treatment, and [Jones] and his wife testified that he felt the effects of the accident while on vacation, the jurors did not have to believe this testimony. [T]he jurors were told they 'may believe all, part, or none of a witness's testimony.' CACI 5003. The jurors were also told they should use their 'common sense and experience in deciding whether testimony is true and accurate.' CACI 5009. The evidence, together with common sense, is sufficiently substantial to support the jury's conclusion that [Bzdawka]'s negligence was not a substantial factor in causing [Jones] harm."
We agree with the conclusion of the trial court that Jones "has not shown [the] evidence was legally insufficient to support the jury's verdict."
B. Allegations of Defense Counsel Misconduct
In addition to alleging the trial court should have entered judgment in favor of Jones notwithstanding the verdict, Jones also argues the court should have ordered a new trial because (he contends) Bzdawka's counsel engaged in misconduct warranting a new trial. To establish misconduct of counsel at a level warranting a new trial, an appellant must demonstrate both misconduct and resulting prejudice. (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 149 (Garcia).) In this case, Jones articulates two contentions as the basis for his argument that the trial court should have ordered a new trial. These are: (1) that certain remarks comprising Bzdawka's counsel's closing argument to the jury violated an in limine ruling that (he says) prohibited counsel from referring to certain aspects of the testimony of Dr. Carpenter; and (2) that those remarks mischaracterized Dr. Carpenter and Dr. Croft's testimony. We address each of these contentions in turn, after articulating the standard of review and briefly discussing the in limine ruling, below.
1. Standard of Review
When an "appellant . . . claims that the trial court erred in failing to grant . . . a new trial on the ground of misconduct of counsel, we apply the standard of review set out in City of Los Angeles v. Decker (1977) 18 Cal.3d 860: 'In our review of such order denying a new trial . . . we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the [attorney misconduct] was prejudicial.'" (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 211; see also Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 296, fn. 16 (Bigler-Engler) ["The Supreme Court has held that the appropriate standard of review for a trial court's denial of a motion for new trial based on attorney misconduct is de novo, at least on the issue of prejudice," citing Decker].)
2. Ruling on Motion in Limine
On the first day of trial, prior to jury selection, the court heard motions in limine. In one of these motions, Jones asked the court to "[e]xclude any and all evidence, references to evidence, testimony or argument constituting, derived from, or relating to injury causation and injury probability opinions of defendant's biomechanical/accident reconstructionist, Nicolas Carpenter." During oral argument on this motion, Jones's counsel told the trial court: "I want to make this clear[:] Dr. Carpenter cannot go into injury causation." When the trial court then asked: "[A]re [you] saying he can't talk about effects on the human body?" Jones's counsel responded by acknowledging that "it's a very fine line" and by then elaborating on this response by stating that: "He can talk about the effects on the human body," but "[i]t stops right there. The next question, . . . 'Doctor, do you believe this amount of force could have caused Mr. Jones injury?' [should not be permitted]." The trial court then ruled from the bench as follows:
The "motion is granted in part. [D]efendant will be precluded from asking . . . Dr. Carpenter if this specific accident caused this plaintiff's injury. That is not an appropriate question for this witness. This witness is not a medical doctor."
3. Bzdawka's Counsel's Remarks Relating to the Biomechanics Experts' Testimony Constituted Inferences Reasonably Drawn from Those Experts' Testimony; They Did Not Violate the In Limine Ruling or Misstate the Experts' Testimony.
As noted ante, Jones bases his argument alleging attorney misconduct on two contentions. The first contention (that Bzdawka's counsel's remarks to the jury relating to Dr. Carpenter's testimony violated the in limine ruling) is incorrect inasmuch as it rests on a distortion of the record. In asserting this contention, Jones argues that:
"Bzdawka's counsel violated the trial court's in limine order 'Exclud[ing] any and all evidence, references to evidence, testimony or argument constituting, derived from, or relating to injury causation and injury probability opinions of defendant's biomechanical/accident reconstructionist, Nicolas Carpenter.' "
In other words, Jones is representing to this court that the trial court, in its in limine ruling, ordered Bzdawka's counsel to exclude from her argument any references relating to opinions of Dr. Carpenter with regard to injury causation or probability. But as the record reveals, the order Jones's counsel describes is the order Jones requested in his motion-not the order the trial court actually entered. The order the court entered was that "defendant will be precluded from asking . . . Dr. Carpenter . . . if this specific accident caused this plaintiff's injury," noting that Dr. Carpenter "is not a medical doctor." This ruling simply cannot reasonably be read as having prevented Bzdawka's counsel from making "references . . . relating to injury causation and injury probability opinions of [Dr.] Carpenter."
Jones's counsel justifies his distortion of the record by asserting that "the trial court was vague" in its ruling and, in all events, "did not disagree that it [had] granted th[e] [broad] exclusion" (italics added) that he quotes from his in limine request. But this justification is specious. The trial court made patently clear (see ante) that the in limine motion was being "granted [only] in part."
As to the second contention of Jones's argument claiming misconduct by Bzdawka's counsel, Jones quotes a passage from Bzdawka's counsel's closing argument as follows:
"We heard from Dr. Carpenter, the property, the repair estimate, the miles per hour, the Delta V, he used all the evidence in this case to determine that this impact was so minor, it would not cause injury and you heard Dr. Croft say if it was a two to three mile an[] hour impact, it would not cause injury. Both of them agreed it wouldn't cause injury.
"The first question [in the special verdict form] is was Valerie Bzdawka's negligence a substantial factor in causing harm to Jerry Jones? The answer to that is no. And the reason is, like Dr. Carpenter explained, it could not have been."
Jones contends these remarks mischaracterized Dr. Carpenter and Dr. Croft's testimony. Here, too, we agree with the conclusion of the trial court that "it is not clear that [Bzdawka's counsel] meant that [Dr. Carpenter] testified about causation, rather than [that] the jurors could use his testimony to conclude no causation." As the case law makes clear,"' "[a]n attorney is permitted to argue all reasonable inferences from the evidence" '" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795); and, in our view, that is all that Bzdawka's counsel did here.
We note that Jones emphasizes in his briefs that Dr. "Carpenter did not testify as to causation" and "never testified that Jones wasn't harmed by the collision." In so doing, he appears to be taking the position that, Dr. Carpenter's testimony that "they did not make a mechanism of injury to this case" (in partial response to the question, "would a rear end motor vehicle accident with a 2 to 3-mile per hour Delta V have a mechanism of injury to the person in a car?"), was permissible under the in limine ruling, even as he (Jones) simultaneously takes Bzdawka's counsel to task for asking the very question that elicited such testimony. (See Jones's reply brief on appeal, arguing that: "Bzdawka argues that 'the court's [in limine] order did not preclude Dr. Carpenter from testifying what the mechanism of injury (or lack thereof) would be under these circumstances from a biomechanical perspective.' But that's merely a word game because Bzdawka's counsel effectively asked, 'Could this collision have caused injury to the person in a car?' Although she didn't use the word 'causation,' if there's no 'mechanism of injury,' the collision couldn't possibly have 'caused' Jones's injuries. Therefore, the question addressed 'causation' which Carpenter had been ordered not to address. This violation of the court's in limine order is grounds for a new trial."
4. No Prejudice Resulted from Bzdawka's Counsel's Remarks Relating to the Biomechanics Experts' Testimony
For the reasons discussed ante, we conclude Bzdawka's counsel's remarks to the jury do not satisfy the first of the two requirements needed to warrant a new trial; i.e., they do not constitute misconduct. But even if those remarks had satisfied that requirement, they still would not suffice to satisfy the second requirement: prejudice.
As the case law teaches, "it is not enough for a party to show attorney misconduct. [T]o justify a new trial, the party must demonstrate that the misconduct was prejudicial." (Garcia, supra, 204 Cal.App.4th at p. 149.) On appellate review, we consider" 'whether it is reasonably probable [that the appellant] would have achieved a more favorable result in the absence of that portion of [attorney conduct] now challenged.'" " 'Each case must ultimately rest upon a court's view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge's control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances.'" (Ibid.) Further, if any error is found, we reverse only if," 'after an examination of the entire cause, including the evidence,'" we conclude" 'that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
In this case, we have examined the entire record, but simply do not see the prejudice for which Jones contends. In this regard, Jones refers us to two circumstances that he contends demonstrate prejudice. First, he attributes words to the jury that he contends prove that improper argument by Bzdawka's counsel must have reverberated forcefully in the minds of the jurors: "[T]he prejudice suffered by Jones . . . is evidenced," he argues, "by the jury's virtual quotation of Bzdawka's counsel's improper comment." But the "virtual quotation" he then offers in support of this argument is the preprinted text of the first question on the special verdict form to which his counsel had agreed, that counsel for both parties had quoted in their closing arguments, and to which the jury had merely affixed it's answer: "No."
"Question No. 1: Was Valerie Bzdawka's negligence a substantial factor in causing harm to Jerry Jones? [Jury's response]: No."
In like fashion, Jones argues that "[t]he damage done by Bzdawka's counsel's misconduct is evidenced by the jury's request for clarification on what 'substantial' means under the law." But this argument, too, is without merit. The word "substantial" appears in the text of a key jury instruction; and it also appears in the special verdict form that (as discussed ante) both parties' counsel had agreed upon before closing arguments and quoted during closing arguments. In other words, it is a word freighted with significance, and the jury recognized as much. The fact that the jury inquired into its meaning redounds no more to the discredit of Bzdawka's counsel than it does to the discredit of Jones's counsel, or of the trial court, or of anyone else.
Our examination of the record in this case leaves us firmly of the opinion that, even if Bzdawka's counsel's argument to the jury regarding the testimony of the biomechanics experts could be deemed to have constituted misconduct, it is not reasonably probable that Jones would have obtained a more favorable verdict in the absence of such argument. Simply stated, defense counsel made a fleeting reference during closing arguments to an inference that the jurors themselves could easily and appropriately have drawn from the biomechanical testimony that they had heard earlier that same day. That testimony and the inference that Bzdawka's counsel drew are consistent with ample evidence the jurors had seen and heard tending to support a conclusion that the collision had occurred at a velocity too low to result in injury.
The attorney conduct with respect to which Jones complains in this case is eminently distinguishable-not merely in degree but in kind-from the circumstances that warranted reversal in the cases Jones has cited to the court. (See Jackson v. Park (2021) 66 Cal.App.5th 1196, 1216 [defense counsel, having convinced trial court to issue an in limine order excluding evidence of blood alcohol and arrest, then proceeded to exploit the order by falsely suggesting to the jury that such evidence did not exist and "argue[d] with the court in front of the jury in a transparent effort to highlight the evidence the court had instructed counsel not to mention"]; Martinez v. Department of Transportation (2015) 238 Cal.App.4th 559, 561-566; [defense counsel posed dozens of questions that were "in clear violation" of trial court's rulings on in limine orders and objections, repeatedly made "toxic Nazi reference[s]" to plaintiff, and otherwise "gratuitously besmirch[ed] the character of plaintiff"].) Moreover, the circumstances present here also fall far short of those present in the case cited by Jones in which the reviewing court concluded reversal was not warranted. (See Bigler-Engler, supra, 7 Cal.App.5th at pp. 292-298 [no prejudice despite plaintiff's counsel having "repeatedly violated the court's in limine rulings," "ignored . . . admonishments from the court, persisted in asking objectionable questions despite sustained objections, . . . improperly suggested [to the jury] that additional evidence of defendants' liability existed (blaming the court for his inability to offer it at trial)," and "insulted and ridiculed defense counsel in the presence of the jury on multiple occasions"].)
Thus, we conclude the alleged attorney misconduct occasioned no prejudice.
C. Allegations of Juror Misconduct
Jones argues the trial court should have granted his motion for a new trial on the grounds that two jurors had engaged in prejudicial misconduct.
1. Standard of Review
In evaluating a motion for new trial based on a claim of juror misconduct, the trial court must engage in a process involving three distinct steps, each of which entails its own distinct standard of review. (See Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345 (Barboni).)
"The trial court must first 'determine whether the affidavits supporting the motion are admissible. [Citations.]' This, like any issue of admissibility, we review for abuse of discretion. [Citation.]" [¶] "Second, 'If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citations.]' 'The moving party bears the burden of establishing juror misconduct. [Citations.]' [Citation.] On review from a trial court's 'determin[ation of] whether misconduct occurred, "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.]" '" [¶]"' "Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial." [Citation.]' On appeal, this court reviews the entire record, including the evidence, and makes an independent determination as to whether the misconduct was prejudicial." '" (Barboni, supra, 210 Cal.App.4th at p. 345.)
We note the Supreme Court has articulated a variety of different standards for review with regard to a trial court's determination as to whether a juror has engaged in misconduct. (See, e.g., People v. Majors (1998) 18 Cal.4th 385, 417 [substantial evidence standard]; People v. Steele (2002) 27 Cal.4th 1230, 1267 [abuse of discretion standard] (Steele); Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 642 [de novo ("independent review of the record") standard] (Oakland Raiders). Although the substantial evidence standard appears to be the most prevalent among these standards, the results of our analysis with regard to the topic of whether misconduct occurred are the same irrespective of which of these standards is applied.
a. The Trial Court Did Not Abuse Its Discretion in Determining That the Juror Affidavits Were Admissible in Part and Inadmissible in Part
In connection with Jones's motion for a new trial, the trial court was presented with a pair of dueling declarations: one elicited by Jones from a juror to whom we will refer as Juror A; and one elicited by Bzdawka from a juror to whom we will refer as Juror B. In evaluating these sworn statements' admissibility, the court correctly turned for guidance to case law (specifically, People v. Manibusan (2013) 58 Cal.4th 40, 55 (Manibusan)) interpreting Evidence Code section 1150, subdivision (a). This provision of the Evidence Code states that, "[u]pon 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," but that "[n]o 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."
Judged by this standard, certain statements in the juror declarations- in particular statements purporting to articulate the thought processes of other jurors-were inadmissible. Such statements included an assertion by Juror A that an unspecified incident "involving Mrs. Jones" that he understood another juror to have "witnessed . . . outside the courthouse before the trial" had prompted that other juror (to whom we will refer as Juror C) to "refuse[] to engage in the deliberation process" and an assertion by Juror B-in referring to Jones's testimony about the collision having left him "dazed and confused"-that "most of us did not believe it anyways." Statements such as these that purported to relate what transpired within the minds of persons other than the declarant him- or herself were inadmissible. (Cf. Manibusan, supra, 58 Cal.4th at p. 55 ["juror's declaration, though admissible to the extent it references overt acts-i.e., statements, conduct, conditions, or events that are open to sight, hearing, and the other senses-is inadmissible to the extent it indicates what . . . juror 'understood' "].)
Notwithstanding the inadmissibility of statements such as those noted above, however, certain other statements in the juror declarations (such as those discussed post) were admissible. Thus we turn to a discussion of the admissible portions of the two juror declarations; and, focusing on those portions of the declarations, we undertake an analysis as to whether substantial evidence supported the trial court's conclusion that Jones failed to meet his burden to demonstrate juror misconduct.
b. Substantial Evidence Supported the Trial Court's Conclusion that Jones Failed to Meet His Burden in Establishing Juror Misconduct
In evaluating whether the admissible portions of the juror declarations demonstrate juror misconduct, we are guided by the precept that a "juror may commit misconduct by receiving or proffering to other jurors information about the case that was not received in evidence at trial" (In re Lucas (2004) 33 Cal.4th 682, 696 (Lucas)), but, "a distinction must be drawn between the introduction of new facts and a juror's reliance on his or her life experience when evaluating evidence." (People v. Allen and Johnson (2011) 53 Cal.4th 60, 76 (Allen and Johnson).) The moving party bears the burden of establishing juror misconduct (Barboni, supra, 210 Cal.App.4th at p. 345), and the "trial court has broad discretion in ruling on" the topic of whether a juror engaged in misconduct. (People v. Bryant (2011) 191 Cal.App.4th 1457, 1467.) With these precepts in mind, we conclude for the reasons discussed below that it was not unreasonable for the trial court, in weighing the admissible portions of the two juror declarations against one another, to conclude that the case for juror misconduct had not been made.
The case for juror misconduct rested primarily on three discrete claims by Jones; and, as to each of these three claims, Juror A and Juror B flatly contradicted one another. The first such claim pertained to the influence exerted in deliberations by Juror D. According to Juror A:
"During the deliberations [Juror D] stated that based on her specialized knowledge and training as a nurse specifically relating to concussions that the symptoms Mr. Jones was describing at the time of his collision were symptoms related to concussions.
"[Juror D] then stated that because the symptoms being described by the plaintiff relate to concussions, what Mr. Jones . . . was describing happened at the time of the collision is not reliable testimony because people who suffer from concussions don't have an accurate recollection of what had happened."
But, per Juror B:
"[Juror D] . . . never held herself out as having specialized knowledge and training, especially relating to concussions. We all discussed how the plaintiff had said several times during the trial that he was 'dazed and confused', which may sound like a concussion, but that was a minor discussion."
The second of the three discrete claims of juror misconduct pertained to the influence exerted in deliberations by a juror to whom we shall refer as Juror E. Juror A stated that, during jury deliberations, Juror E "specifically stated that he ha[d] been in a similar accident," that he "[had] c[o]me out without being injured," and that "he d[id] not believe Mr. Jones could have been injured in this collision." Further (according to Juror A), Juror E told the other jurors that, "based on his experience and knowledge:"
"[Jones] 'could not have moved in the way described . . .' (i.e., [Juror E] believed that being hit from behind would only push the seat into [Jones] and not knock [Jones's] head forward then back as the experts had testified and Mr. Jones the plaintiff had described during his testimony);"
and
"[Jones's] body should have only moved backwards in his chair and . . . his head could not have moved forward and then backwards to cause him a whiplash injury."
But Juror B stated:
"I do not recall any of the Jurors saying that they had some specialized knowledge or experience regarding the forces on the body in an automobile accident such as this one. I believe we discussed Mr. Jones's inconsistent testimony about the way his body moved at the time of impact as well as all of the other evidence presented about the accident."
The third of the three discrete claims of juror misconduct pertained to the alleged refusal of one juror (Juror C) to participate in deliberations at all. Whereas Juror A stated (as noted ante) that some unspecified incident observed by Juror C had prompted Juror C to refuse to engage in deliberations, Juror B described a situation quite the opposite:
"I was with [Juror C] when we witnessed Mrs. Jones trying to pay for parking . . . and although we wanted to help her, we did not talk to her as we [had been] instructed not to by the Judge. I never heard Juror [C] say that he was not going to engage in the deliberation process[,] and I specifically remember him joining in the discussions and the ultimate vote for the verdict."
In considering the muddle of contradictory evidence presented in Juror A and Juror B's competing renditions of events, the trial court concluded that Jones had not met his burden. So, too, do we.
Our conclusion finds support in several decades of California Supreme Court jurisprudence addressing the topic of juror experience. These opinions include People v. Fauber (1992) 2 Cal.4th 792, 839, in which the Supreme Court stated: "Jurors cannot be expected to shed their backgrounds and experiences at the door of the deliberation room." Similarly, in In re Malone (1996) 12 Cal.4th 935, 963, the court explained that: "Jurors' views of the evidence . . . are necessarily informed by their life experiences, including their education and professional work."
In People v. Steele, supra, the Supreme Court concluded that the trial court had not abused its discretion in denying a party's motion for a new trial based on several jurors' assertions of expertise during deliberations. In that case: "The jury . . . received evidence about the defendant's military experience and training during the Vietnam War, as well as expert testimony about neurological testing performed on him. [Citation.] The defendant moved for a new trial, asserting four jurors with military experience told the other jurors it was unlikely the defendant was exposed to combat in Vietnam, and two other jurors explained, based on their experiences in the medical field, that the validity of one of the neurological tests was inadequately established. [Citation.] In rejecting the claim of juror misconduct, [the Supreme Court] noted, 'All the jurors, including those with relevant personal backgrounds, were entitled to consider this evidence and express opinions regarding it. "[I]t is an impossible standard to require . . . [the jury] to be a laboratory, completely sterilized and freed from any external factors." [Citation.] "It is 'virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.'" '" Allen and Johnson, supra, 53 Cal.4th at pp. 76-77. (See also Steele, supra, 27 Cal.4th at pp. 1265-1268 [noting, at p. 1266, that "[a] fine line exists between using one's background in analyzing the evidence, which is appropriate, even inevitable, and injecting 'an opinion explicitly based on specialized information obtained from outside sources,' which we have described as misconduct." See also ibid. [concluding that "[t]he views the jurors allegedly asserted here were not contrary to, but came within the range of, permissible interpretations of th[e] evidence" adduced at trial].)
Subsequent to the issuance of its opinion in Steele, the Supreme Court further explained, in Allen and Johnson, supra, that:" 'A juror may not express opinions based on asserted personal expertise that is different from or contrary to the law as the trial court stated it or to the evidence, but if we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use their experience in evaluating and interpreting that evidence. Moreover, during the give and take of deliberations, it is virtually impossible to divorce completely one's background from one's analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer to their background during deliberations. "Jurors are not automatons. They are imbued with human frailties as well as virtues." '" (Allen and Johnson, supra, 53 Cal.4th at p. 77; see also People v. Yeoman (2003) 31 Cal.4th 93, 162 [no misconduct when jurors referenced their own experiences with drugs in evaluating the defendant's drug use].) (See also Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 741-742 ["Jurors do not enter deliberations with their personal histories erased, in essence retaining only the experience of the trial itself. Jurors are expected to be fully functioning human beings, bringing diverse backgrounds and experiences to the matter before them."].)
Our conclusion also finds support in opinions of the Supreme Court and courts of appeal bearing on contradictory juror affidavits. By way of example, in Oakland Raiders, supra, 41 Cal.4th 624, the Supreme Court "conclude[d] that the [appellant] ha[d] failed to discharge [its] burden to persuade us of jury misconduct warranting the grant of a new trial" in circumstances in which "the testimonial evidence submitted by the parties in the form of juror declarations [wa]s sharply conflicting on every material issue." (Id., at p. 642.) Similarly, in Barboni, supra, a case that came "down to a battle of the declarations," the court of appeal concluded that substantial evidence supported the trial court's determination that the appellant's burden had not been met. (Barboni, supra, 210 Cal.App.4th at p. 351.)
In this case, even if only the evidence furnished in the declaration of Juror A were to be considered and all of the contradictory evidence furnished in the declaration of Juror B were to be ignored, we still would conclude that the statements of Juror E (as related by Juror A) amount to nothing more than a juror's articulation of views based on his own life experience. The statements of Juror D would present us with a closer call; however, these, too, might very well come within the ambit of the types of juror statements held to have been permissible in Steele. Adding back into the mix the fact that Juror A's rendition of events is contradicted, we conclude the trial court did not abuse its discretion. (See generally Young v. Brunicardi (1986) 187 Cal.App.3d 1344, 1350-1351 ["The determination by a trial court of a motion for a new trial submitted on affidavits which present conflicting facts is a determination of those controverted facts in favor of the prevailing party."]; Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108 [" 'When an issue is tried on affidavits . . . and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed.' "]; Wagner v. Doulton (1980) 112 Cal.App.3d 945, 948-949 ["Weighing the credibility of conflicting declarations on a motion for a new trial is uniquely within the province of the trial court."].)
c. A De Novo Review of the Entire Record Reveals that No Prejudice Resulted from the Conduct Revealed in the Admissible Portions of the Juror Declarations
As a final matter, notwithstanding our having found no misconduct, we nonetheless have undertaken a review of the entirety of the record in this case to satisfy ourselves as to whether Jones received a fair trial (cf. Lucas, supra, 33 Cal.4th at pp. 696-697; Tillery v. Richland (1984) 158 Cal.App.3d 957, 977), and we have concluded that he did. Our independent examination of the record does not show a reasonable probability that Jones was prejudiced by the matters that are set forth in the declaration of Juror A. Viewed in the context of the record as a whole, those matters are not inherently and substantially likely to have exerted an improper influence on the jury.
III.
DISPOSITION
The judgment and the order denying the motion for a new trial are affirmed.
WE CONCUR: O'ROURKE, Acting P.J. DO, J.