Opinion
B322864
11-26-2024
CYNTHIA MEYER, Plaintiff and Appellant, v. FARMERS FINANCIAL SOLUTIONS, LLC, Defendant and Respondent.
Clarkson Law Firm, Glenn A. Danas, Ashley M. Boulton, Katelyn M. Leeviraphan; Shegerian & Associates, Carney R. Shegerian, Anthony Nguyen, Mahru Madjidi and Bryan Kirsh for Plaintiff and Appellant. Tharpe & Howell, Christopher S. Maile, Frank A. Magnanimo, Eric B. Kunkel for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. BC625867, 20STCV14187, Frederick C. Shaller, Judge. Affirmed.
Clarkson Law Firm, Glenn A. Danas, Ashley M. Boulton, Katelyn M. Leeviraphan; Shegerian & Associates, Carney R. Shegerian, Anthony Nguyen, Mahru Madjidi and Bryan Kirsh for Plaintiff and Appellant.
Tharpe & Howell, Christopher S. Maile, Frank A. Magnanimo, Eric B. Kunkel for Defendant and Respondent.
SIGGINS, J. [*]
INTRODUCTION
Appellant Cynthia Meyer sued her former employers, respondents Farmers Financial Solutions, LLC and FFS Holding, LLC (collectively, Farmers) for wrongful termination and related claims, including disability discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.), failure to reasonably accommodate her disability, and whistleblower retaliation in violation of Labor Code section 1102.5. The trial court granted summary adjudication for Farmers on all but one of Meyer's claims. Her remaining claim, that Farmers failed to reasonably accommodate her disability, proceeded to trial. A jury returned a verdict in favor of Farmers. The court subsequently denied Meyer's motion for new trial.
On appeal, Meyer argues that the trial court should have denied summary adjudication in favor of Farmers on her claims for disability discrimination, retaliation, wrongful termination, and whistleblower retaliation. She contends that she raised a triable issue of fact as to whether she was constructively discharged, or otherwise subject to an adverse employment action, and a causal nexus between her protected status and the adverse action. She also argues that she adequately established that she had complained about violations of rules propounded by the Financial Industry Regulatory Authority (FINRA) to support her whistleblower claim.
We conclude that the evidence presented by Meyer does not establish a prima facie case of discrimination or retaliation by Farmers. Additionally, Meyer admitted that she did not observe or report any actual FINRA violations by Farmers. Her concerns regarding potential violations cannot trigger whistleblower protections under Labor Code section 1102.5. The trial court did not err in granting the motion for summary adjudication.
Meyer also challenges the denial of her motion for new trial. She contends that she provided sufficient evidence of juror misconduct and established that the misconduct was prejudicial, warranting a new trial. We disagree. The trial court carefully examined the evidence provided by both parties and concluded that Meyer had not established prejudice as a result of any juror misconduct. That was not an error. We therefore affirm.
FACTUAL AND PROCEDURAL HISTORY
I. Background
The following facts are undisputed. Farmers sells insurance-related investment vehicles such as variable universal life policies. Farmers is registered as a broker/dealer and is therefore subject to oversight and regulation by FINRA. Farmers' sales representatives need to be registered by FINRA through submission of an application for registration (called a U4). Farmers' licensing and registration department, where Meyer worked, is a liaison between the sales force and FINRA, including facilitating the completion and submission of the U4 applications to FINRA.
Farmers hired Meyer as a licensing and registration coordinator in 2000. She was ultimately promoted to licensing manager. In February 2014, she was diagnosed with a herniated disc in her neck, which caused her neck and back pain. She told her then-supervisor that she would need to leave work by 4:15 p.m. on certain days to get chiropractic treatment. The supervisor stated that was "fine."
In April 2014, Farmers promoted Courtney Saye to Director of Operations and she became Meyer's supervisor. Meyer told Saye at that time that she had a herniated disc and needed to leave the office early for chiropractic treatment.
In June 2014, Saye and John Mueting, Farmers' president, announced that the licensing department would be switching from a paper-based system to an electronic system, called RegEd, for the processing of U4 applications. The changeover increased the workload for the licensing team, including Meyer, who had to maintain the day-to-day operations of the department and assist with the implementation of the new platform. Saye also directed Meyer to expedite the processing time for the U4 applications. Meyer expressed concern that the expedited schedule could create potential violations of Farmers' internal policies and procedures and/or potential violations of FINRA.
On November 6, 2014, Meyer's doctor placed her on medical leave for "marked stress, panic attacks, [and] depression." On the day she returned to work, December 15, 2014, Meyer sent an email to Farmers stating that she was voluntarily resigning, effective immediately.
II. Complaint
Meyer filed her complaint in July 2016 against Farmers, Saye, and Mueting. She filed the operative first amended complaint in September 2016, alleging 16 causes of action: age discrimination and retaliation (claims one and two); disability discrimination, harassment, and retaliation (claims three, four, and five); failure to provide reasonable accommodation (claim six); medical leave discrimination, harassment, and retaliation (claims seven, eight, and nine); whistleblower retaliation in violation of Labor Code section 1102.5 (claims 10 and 11); breach of contract (claims 12 and 13); wrongful termination in violation of public policy (claim 14); failure to prevent discrimination, harassment, and retaliation (claim 15); and intentional infliction of emotional distress (claim 16).
Meyer later dismissed Saye and Mueting from the complaint with prejudice. The court sustained Farmers' demurrer to the first amended complaint as to her fourth cause of action for harassment based on disability and her 16th cause of action for intentional infliction of emotional distress.
Meyer alleged that the increased workload at Farmers prevented her from attending her chiropractic appointments. She also began to suffer panic attacks because of the "stressful and hostile work environment." In support of her whistleblower claims, she alleged she "complained to both Saye and Mueting that the shortened deadlines could come at the expense of complying with FINRA regulations, but her complaints were ignored." Meyer further alleged that after she voiced her complaints, she began to be treated differently by Saye and Mueting. She was excluded from meetings and criticized by Saye that she "did not have a good attitude" and needed to be a "team player." Meyer alleged that she was constructively terminated from her position because when her leave ended in December 2014, she "realized that she could not return to such a hostile work environment."
III. Motion for Summary Judgment
We discuss here only the claims raised by Meyer on appeal.
A. Motion
Farmers moved for summary judgment or, in the alternative, summary adjudication pursuant to Code of Civil Procedure section 437c. Farmers argued that Meyer could not prevail on her disability claims under the FEHA because she had no evidence that she suffered an adverse employment action or that any possible adverse action was based on her disability. Farmers claimed it was undisputed that Meyer never complained to Farmers of disability discrimination, thus she could not establish any retaliation on the basis of such complaints. With respect to the whistleblower claims, Farmers argued that Meyer admitted she was unaware of any actual violations of FINRA and she was not protected under the relevant statute for her complaints about potential violations of the law. Farmers also asserted that there was no causal nexus between Meyer's complaints and any adverse employment action.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
In support of the arguments disputing Meyer's disability claims, Farmers offered Meyer's deposition testimony that the only accommodation she requested of her supervisors for her herniated disc was her need to leave by 4:30 pm on some days to go to the chiropractor. When she told this to Saye in approximately May 2014, Saye did not respond but Meyer believed that she "received and understood" the information. Meyer also testified that Saye never prevented her from going to a chiropractic treatment. In August or September of 2014, Meyer discussed her heavy workload with Saye, but did not believe she told Saye that she was unable to go to the chiropractor because of the long workdays. Meyer also did not discuss with Saye any of her symptoms from the herniated disc. Meyer testified that she did not visit the chiropractor in August, September, or October of 2014.
Meyer had jury duty for about a week in late October. She met with Saye after she was released from jury duty on November 6. Meyer testified by that point she had been having "extreme panic attacks," was not sleeping, and was stressed. Her meeting with Saye was a "normal update" meeting. Meyer did not tell Saye she was experiencing anxiety related symptoms, as she wanted to seem like a team player and stay positive.
Meyer had an appointment with her physician after her meeting on November 6, and she was able to leave work to attend. Her doctor placed her on medical leave. She did not go to the chiropractor while on leave. Farmers approved her request for medical leave from November 7 to December 15, 2014 and Meyer received disability benefits during that time.
With respect to the whistleblower claims, Meyer admitted in deposition testimony that during her time at Farmers, she did not personally violate any FINRA rule and had no knowledge of anyone else at Farmers violating a FINRA rule. Meyer testified that she never contacted FINRA to express concerns or report any violations related to Farmers because in order to report, "there would need to be a direct violation, one that could be shown through evidence. My concern was the potential violations that were appearing would happen." She also acknowledged that as a registered principal, her licensing requirements obligated her to notify FINRA of a violation. However, the areas of concern she identified "had not resulted, to my knowledge, in any violation at that time; so to contact FINRA, I would not have anything concrete." She did not go to any internal Farmers' auditors for the same reason.
Steven Klein, Farmers' Chief Compliance Officer, stated in a declaration that FINRA conducted "periodic, detailed audits" to ensure that Farmers was operating in compliance, and had not identified any actual violations of securities laws in its last audit in December 2015. FINRA identified a handful of areas "potentially out of compliance," but none involved the operations of the licensing department and all were resolved "without the necessity of any formal regulatory action."
Meyer testified that when she told Mueting her concerns about her department not following internal guidelines, she was told she was "not a team player." In her mid-year performance review in 2014, Saye gave Meyer the impression that she was generally "fine" with her performance, but commented about "concerns of my attitude and being a team player." Meyer told Saye that she would try to improve because she did not want to be perceived as unsupportive of the changes.
Meyer testified that toward the end of her December 2014 leave she had decided to resign. She discussed it with her husband and "it was very clear to me and to my husband that I could not return to the work environment that I had been in...before going out on leave." Meyer felt it was a "very hostile work environment" because of the changes that were putting her in a "position of possibly violating our written supervisory procedures and be [sic] identified by FINRA." She also described the "hostile work environment" as the "tone" of her dealings with Saye, the increased pressure to work faster, and the workload, which made her feel like she could not take the time to go to the chiropractor.
Saye submitted a declaration stating that the 2014 workload increase in the licensing department was "temporary" as they worked to switch to the RegEd platform. From the time she started managing the department in April 2014 through Meyer's resignation in December 2014, Saye did not take any formal disciplinary action against Meyer and Meyer never expressed any belief that the department was operating in violation of any FINRA rules. Meyer "never expressed to me that she felt she had been subject to discrimination or retaliation of any kind for any reason."
B. Opposition and Reply
Meyer opposed the motion for summary judgment. She argued she had established a prima facie showing of discrimination, including that she was "constructively discharged by being forced to resign." Her complaints supporting her whistleblower claims met the standard under Labor Code section 1102.5 because she had reasonable cause to believe that the information she was reporting disclosed violations of FINRA rules.
Meyer's declaration in opposition stated that prior to 2014, she had been promoted several times within Farmers and received positive performance reviews and merit raises. In June 2014, when Farmers announced the implementation of the RegEd system, Mueting and Saye told her to cut the processing time of some projects by one-third, including processing U4 applications "without properly reviewing them." By July, Meyer was working 10 to 12 hours per shift and was unable to attend her chiropractor appointments from July through November when she went on leave. She told Saye and Mueting that she was uncomfortable with the "operational shortcuts," because of the "potential FINRA violations that would occur." Meyer felt Saye was retaliating against her for her complaints because "she excluded me from decisions affecting my licensing team and other important meetings." Saye also wrote in her mid-year performance review that Meyer needed to be a "team player." Saye testified in her deposition that Meyer told her she was stressed about her workload, which Saye characterized as an "unfortunate but expected part of change, project work, new technology." She denied that Meyer was excluded from any meetings, but stated that Meyer would express anxiety and discomfort about the changes to the department.
Meyer had jury duty for about a week at the end of October. When she told Saye that she had to report to the court, Saye responded, "Well, any idiot can get out of jury duty."
Meyer also included a declaration from another former Farmers' employee stating that Saye "treated the employees that she managed poorly," and that under Saye, the "work environment became unbearable due to the stress of being overwhelmed with work as well as Saye's hostile and threatening management style."
Meyer also filed objections to Farmers' evidence. In Farmers' reply, it objected to many of the declarations submitted by Meyer.
C. Ruling
Following a hearing, the court granted Famers' motion in part. The court overruled all of Meyer's evidentiary objections, and Farmers' objections were sustained in part and overruled in part. The court granted summary adjudication on all of Meyer's causes of action except her sixth cause of action for Farmers' failure to reasonably accommodate Meyer's disability. The court found that there was a triable issue of fact as to whether Farmers was sufficiently on notice of Meyer's need for a reasonable accommodation.
In ruling on Meyer's other FEHA claims, the court examined Meyer's claim that she "was subjected to an adverse employment action: her constructive termination." The court identified a handful of intolerable conditions claimed by Meyer: "1) pressuring Meyer to commit FINRA violations and to take other actions that created potential FINRA violations, 2) failing to take action despite Meyer's complaints against FFS's policies, 3) insulting Meyer and issuing a negative performance review in August 2014, 4) tripling her work load [sic] and responsibilities, 5) denying her a reasonable accommodation for her disability, [and] 6) hassling and demeaning Meyer about her jury duty." The court found that apart from the reasonable accommodation claim, the alleged conduct did not support a finding of intolerable conditions that would establish a constructive discharge. The court noted that "there is no evidence that Meyer was pressured to commit actual FINRA violations," but at best, "the evidence shows that Meyer had concerns about potential FINRA violations as a result of Defendants' failure to follow their own internal policies and procedures." The court rejected a finding that "the nature of the purported potential FINRA violations was so obnoxious as to render Meyer's employment conditions intolerable to a reasonable employee." Moreover, even if Meyer's single negative performance review was "insulting" it did not provide the basis for a claim of constructive discharge. Taking the alleged conditions together, the court found that Meyer had not established a "continuous pattern of harassment or aggravating conditions," but rather conduct that "can be characterized as a 'normal part of the employment relationship.'"
The court also found that Meyer failed to show a causal nexus between the alleged adverse employment action and discriminatory intent. Meyer provided no evidence that any of the alleged intolerable conduct was motivated by her age or disability. The court therefore granted summary adjudication as to Meyer's first and third causes of action for age and disability discrimination. The court similarly granted summary adjudication as to Meyer's second cause of action for retaliation based on age discrimination. Because it was undisputed that Meyer did not complain to Farmers about age discrimination, she could not show she was retaliated against for any such complaint. On Meyer's fifth cause of action for retaliation based on disability discrimination, the court found insufficient evidence that the purported retaliatory acts consisting of the negative performance review, exclusion from decisions and meetings, and rushed project timelines, constituted an adverse employment action. The court also granted summary adjudication as to Meyer's 14th cause of action for wrongful termination in violation of public policy, because that claim was based on her other discrimination and retaliation claims.
Next, the court granted summary adjudication as to Meyer's whistleblower claims in her tenth and eleventh causes of action. The court found that Meyer's evidence demonstrated only that she complained about potential violations of FINRA rules, rather than actual violations. The court also repeated its earlier finding that Meyer had not shown she was subject to an adverse employment action.
The court also granted summary adjudication on Meyer's remaining claims, her the seventh and ninth causes of action for discrimination and retaliation based on medical leave and her 12th and 13th contract causes of action. Those claims are not at issue in this appeal.
IV. Trial and Post-trial Motions
A. Trial
Trial began on May 2, 2022 on Meyer's sole remaining claim for failure to provide reasonable accommodation for her disability. The jury began deliberations on May 16, 2022. On May 19, 2022, the jury returned a verdict in favor of Farmers. On the special verdict form, the jury voted nine to three in favor of finding that Farmers did not fail to participate in the interactive process with Meyer and did not fail to provide reasonable accommodation.
B. Motion for New Trial
Meyer filed a motion for new trial and a motion for judgment notwithstanding the verdict. In this appeal, she challenges only the denial of her motion for new trial based on juror misconduct. In support of her motion for new trial, Meyer presented declarations from three jurors and argued that juror misconduct tainted the verdict and required a new trial. Specifically, she argued that jurors committed misconduct by discussing personal experiences with the reasonable accommodation process during deliberations, discussing the case outside of deliberations, failing to pay attention during testimony and deliberations, and exhibiting impatience and a desire not to participate in the deliberative process.
Farmers opposed the motion, arguing that some of the evidence Meyer presented was inadmissible and that Meyer had not shown prejudice from any purported misconduct. Farmers also filed objections to Meyer's evidence, as well as declarations from several jurors.
The court denied the motion following a hearing in July 2022. We address the motion and the court's ruling in detail in Discussion section II, post.
Meyer timely appealed.
DISCUSSION
I. Motion for Summary Judgment or Adjudication
Meyer only partially challenges the trial court's order granting summary adjudication to Farmers. She does not assert any error regarding her age, medical leave, or contract claims. She challenges the ruling on her disability discrimination and retaliation claims (her third, fifth, and 15th causes of action), by arguing that the trial court assessed only whether she had established a constructive termination, but did not consider whether she had shown that the alleged conduct by Farmers resulted in some other kind of adverse employment action. She also contends that she established a triable issue of fact as to whether she was constructively terminated and whether there was a causal nexus between her disability and an adverse employment action.
Meyer also argues that the court erred when it granted summary adjudication on her whistleblower claims (her 10th and 11th causes of action), by requiring Meyer to show the occurrence of an actual FINRA violation, rather than a potential violation. She also says that she provided evidence of actual violations.
Meyer has failed to establish any error by the trial court. We therefore affirm the order granting summary adjudication as to Meyer's first through fifth and seventh through 16th causes of action.
A. Legal Standards
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) A defendant moving for summary judgment must show "that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action." (§ 437c, subd. (p)(2).) "[W]e must view the evidence in a light favorable to plaintiff as the losing party, liberally construing [his or] her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We accept as true both the facts shown by the losing party's evidence and reasonable inferences from that evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)
Summary judgment is appropriate only when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).) A triable issue of material fact exists if the evidence and inferences therefrom would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850, 856.)
An employer meets its initial burden in moving for summary judgment or adjudication of an employment discrimination claim by presenting evidence that one or more elements of the plaintiff's prima facie case is lacking, or the employer acted for a legitimate, nondiscriminatory reason. (Zamora v. Security Industrial Specialists, Inc. (2021) 71 Cal.App.5th 1, 32; Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181; Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).) The elements of a prima facie case generally include "evidence that (1) [plaintiff] was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Guz, supra, 24 Cal.4th at p. 355.) A legitimate, nondiscriminatory reason is one that is unrelated to the prohibited bias and, if true, would preclude a finding of discrimination or retaliation. (Id. at p. 358.) The employer's evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.)
If the employer satisfies its initial burden, the burden shifts to the plaintiff to present evidence creating a triable issue of fact showing the employer's stated reason was a pretext for unlawful animus. (Husman v. Toyota Motor Credit Corp., supra, 12 Cal.App.5th at p. 1182; Featherstone, supra, 10 Cal.App.5th at pp. 1158-1159.) The plaintiff's evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232; Guz, supra, 24 Cal.4th at pp. 353, 357.) The stronger the employer's showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff's evidence must be to create a reasonable inference of a discriminatory motive. (Guz, supra, 24 Cal.4th at p. 362 &fn. 25.)
B. Disability Claims
1. Meyer's alleged adverse employment actions
Meyer contends the trial court applied the wrong legal standard when it determined she had not met her burden to show that Farmers subjected her to an adverse employment action. She argues that the court used the "more stringent" standard that applies in constructive discharge cases, by requiring her to show that "the employer's conduct effectively forces an employee to resign." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1245 (Turner).) Meyer asserts that the court should have analyzed whether she had shown any adverse employment action, defined as one that "'materially affect[s] the terms, conditions, or privileges of employment.'" (Featherstone, supra, 10 Cal.App.5th at p. 1161, quoting Yanowitz v. L'Oreal USA Inc. (2005) 36 Cal.4th 1028, 1051, fn. 9.)
Farmers counters that Meyer waived, or more accurately forfeited, this argument by failing to raise it to the trial court. We agree. "'Generally, the rules relating to the scope of appellate review apply to appellate review of summary judgments.... Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a 'triable issue' on appeal.'" (San Francisco Print Media Co. v. The Hearst Corp. (2020) 44 Cal.App.5th 952, 965, quoting Expansion Pointe Properties Limited Partnership v. Procopio, Cory, Hargreaves & Savitch, LLP (2007) 152 Cal.App.4th 42, 54-55 (Expansion Pointe).) "The policy behind the rule is fairness. 'Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider.'" (In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 826, citation omitted.; see also Kime v. Dignity Health, Inc. (2024) 101 Cal.App.5th 708, 721 [arguments not raised in opposition to motion below were forfeited].)
"[T]he correct legal term for the loss of a right based on failure to timely assert it is 'forfeiture,' because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the '"intentional relinquishment or abandonment of a known right."' [Citations.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
When she opposed summary judgment, Meyer argued that she suffered a constructive discharge, which would satisfy the requirement of an adverse employment action. But she did not argue that her evidence established an adverse employment action short of a constructive discharge. As result, Farmers' reply and the trial court's analysis focused on whether Meyer was constructively discharged. The trial court did not err by considering only the theory that Meyer raised, and Meyer has forfeited her ability to pursue a different theory on appeal.
Meyer does not dispute that she limited her argument in the trial court to a claim that the adverse employment action at issue was a constructive discharge. Instead, she urges us to reach her argument on appeal because it is based on facts that were "fully developed below." We decline to do so. Meyer has not raised a new legal argument based on undisputed facts. (See, e.g., Expansion Pointe, supra, 152 Cal.App.4th at p. 53 ["An appellant may be permitted to change his theory when a question of law alone is presented on the facts appearing in the record. In that case, the opposing party is not required to defend for the first time on appeal against a new theory that contemplates a controverted factual situation."].). Instead, she is attempting to argue for the first time on appeal that she raised a triable issue of fact as to whether the conduct she alleged by Farmers resulted in a material change in her employment conditions, and was, therefore, an adverse employment action. Farmers and the trial court were not given the opportunity to address this issue, and we decline to do so in the first instance.
2. Evidence of constructive discharge
Meyer also argues that she raised a triable issue of material fact about whether she suffered a constructive discharge. She contends that the trial court improperly analyzed each of her purported intolerable working conditions "individually in isolation," and "without meaningful analysis" concluded that there was insufficient evidence of constructive discharge. The trial court correctly assessed and weighed the evidence Meyer says supports her claim.
Constructive discharge occurs when an employee is "'forced to resign due to actions and conditions so intolerable or aggravated at the time of his resignation that a reasonable person in the employee's position would have resigned.'" (Turner, supra, 7 Cal.4th at p. 1245.) The requisite "intolerable conditions" "must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee." (Id. at p. 1246.) Our Supreme Court has cautioned that "'[a]n employee may not be unreasonably sensitive to his [or her] working environment.... Every job has its frustrations, challenges, and disappointments; these inhere in the nature of work. An employee is protected from . . . unreasonably harsh conditions, in excess of those faced by his [or her] co-workers. He [or she] is not, however, guaranteed a working environment free of stress.'" (Id. at p. 1247, citation omitted.)
The adverse conditions must be "unusually 'aggravated' or amount to a 'continuous pattern' before the situation will be deemed intolerable. In general, '[s]ingle, trivial, or isolated acts of [misconduct] are insufficient' to support a constructive discharge claim." (Turner, supra, 7 Cal.4th at p. 1247, citation and footnote omitted.) Meyer claims several instances of misconduct by Farmers resulted in conditions so intolerable that she was constructively discharged. First, she says she presented evidence that Farmers was committing actual FINRA violations, rather than merely expressing concern about potential violations that could arise. As we discuss further in section I.C., post, Meyer has not provided any evidence that Farmers employees violated FINRA during her employment. This argument therefore is unsupported by the record.
Next, Meyer raises her poor performance review in August of 2014, which the trial court dismissed as insufficient to support a constructive discharge. While Meyer acknowledges that "a single negative performance rating does not amount to a constructive discharge" (Turner, supra, 7 Cal.4th at p. 1255), she contends the court failed to consider this poor review together with her remaining claims of misconduct. The bad acts she attributes to Farmers included tripling her workload and responsibilities, denying her reasonable accommodations for her disability, and "hassling and demeaning" Meyer about jury duty.
If true, it is ironic that an employee of Farmers, a company indirectly owned by Farmers Insurance Exchange, Fire Insurance Exchange, and Truck Insurance Exchange and their policy holders, would make a statement condoning "get[ting] out of jury duty." These companies assert the right to jury trial on behalf of their insureds in courts throughout the United States every day. Indeed, Farmers asserted it on its own behalf in this case. This remark is insulting to the thousands of Americans who serve on juries every day and do their civic duty. "Jury service preserves the democratic element of the law, as it guards the rights of the parties and ensures continued acceptance of the laws by all of the people. [Citation.] It 'affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law.' [Citation.] Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process." (Powers v. Ohio (1991) 499 U.S. 400, 407.)
Fundamentally, we disagree with Meyer's suggestion that the trial court considered each instance of alleged misconduct only in isolation. Indeed, the court expressly considered the conditions together and found that Meyer had not established a "continuous pattern of harassment or aggravating conditions," but rather conduct that "can be characterized as a 'normal part of the employment relationship.'" The evidence supports the trial court's conclusion.
Both parties presented evidence on summary judgment that the increased workload affected the entire licensing department and was caused by Farmers' transition to the new online licensing system and operational restructuring. Moreover, Meyer offers no evidence to counter Saye's testimony that the workload increase was temporary and would ease considerably once the RegEd platform was launched at the end of 2014. There is no evidence connecting this department-wide workload increase to any misconduct directed at Meyer.
Meyer's claim that she was regularly criticized is based upon a few comments by Saye that she had a poor attitude and was not a team player, as well as Saye's statement that "any idiot can get out of jury duty." However challenging or disappointing these remarks may have been, the trial court could properly conclude they did not amount to an unusually aggravated pattern of behavior that rendered Meyer's working conditions objectively intolerable.
3. Causation
Meyer also argues that the trial court ignored evidence that there was a causal link between her disability and Farmers' adverse employment actions. She focuses on the timing of her negative performance review, which came after more than a decade of positive reviews, and her increased workload. Both developments occurred several months after Meyer informed Farmers of her disability and need for accommodation. She contends this timing alone is sufficient circumstantial evidence from which a jury could find causation.
The fatal flaw in Meyer's reasoning is that she has not established that these events were due to her disability. As we have discussed, the evidence showed that the entire licensing department worked longer hours to prepare for the move to the RegEd platform. Similarly, Meyer does not dispute that she had some issues and concerns with the changes being made to department operations, and that she was vocal about them. In context, the evidence suggests that Saye's negative review and comments about Meyer's attitude reflect this tension. Moreover, even if Meyer could make a prima facie showing of causation based on these events, Farmers presented evidence of legitimate, nonretaliatory reasons for them. The licensing department was undergoing significant changes, and Meyer has provided no evidence that this proffered legitimate reason was a pretext for adverse employment action. (See Husman v. Toyota Motor Credit Corp., supra, 12 Cal.App.5th at p. 1182; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.)
The trial court did not err in granting summary adjudication for Farmers on Meyer's third cause of action for disability discrimination, fifth cause of action for retaliation on the basis of a disability, and 15th cause of action for failure to prevent disability discrimination or retaliation. The court similarly did not err in granting summary adjudication for Farmers on Meyer's 14th cause of action for wrongful termination in violation of public policy, as that claim was based on the same allegations.
C. Whistleblower Claims
Meyer also argues the trial court should have allowed her whistleblower claims to proceed. She says the court was wrong to conclude that her belief and reports that the changes at Farmers could potentially violate FINRA did not support whistleblower liability. Alternatively, she argues that she provided evidence that Farmers actually violated the law. We disagree with her on both points.
Meyer alleged retaliation in violation of Labor Code section 1102.5, "California's general whistleblower statute." (Carter v. Escondido Union High School Dist. (2007) 148 Cal.App.4th 922, 933.) Labor Code section 1102.5, subdivision (b) prohibits retaliation by an employer against an employee "for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation." "This provision reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation." (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.)
The protections of Labor Code section 1102.5, subdivision (b) apply where the disclosing employee "has reasonable cause to believe that the information discloses a [legal] violation." (People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 734 (Garcia-Brower).) As such, the relevant inquiry is not whether the conduct violated any specific statute or regulation, but whether the plaintiff reasonably believed a violation occurred. (See Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 854 (Mize-Kurzman) ["Disclosures of a policy that the employee reasonably believes violates a statute or regulation are protected disclosures."]), disapproved on other grounds by Garcia-Brower, supra, 14 Cal.5th at p. 734.)
Meyer argues that this reasonable belief requirement means an employee is protected for disclosing a potential, rather than an actual, violation of the law. She cites no authority supporting this argument. Instead, the cases she cites and the statute make clear that the employee is protected for disclosure of conduct that the employee reasonably believes constitutes an actual violation. (See Lab. Code, § 1102,5, subd. (b); Mize-Kurzman, supra, 202 Cal.App.4th at p. 854.) Here, Meyer testified that she did not report Farmers to FINRA because she did not believe an actual violation had occurred. Instead, she had concerns that one might occur at some point. Thus, she was unable to establish that she engaged in protected activity as a whistleblower.
As we have discussed above, Meyer alternatively contends that she provided evidence of actual FINRA violations that were sufficient to defeat summary judgment. She cites to her response to undisputed fact number 40 in Farmers' separate statement, and suggests that the trial court misinterpreted the evidence based on a "clerical error" in her response. But our review of the evidence Meyer cited in her response shows only deposition testimony by Meyer regarding potential FINRA violations. For example, Meyer cites to her testimony about "some of the areas that I thought were potential violations per our own policies and procedures", changes she was asked to make to "the steps that were being taken to do the workflow, which would potentially violate our policies and procedures", and her concern that Farmers was creating the potential that it "may violate . . . a FINRA rule," if, for example, a scanning error damaged a document they might need for a FINRA compliance review. But Meyer also testified that she was not aware of an instance where there was a compliance issue due to faulty scanning.
Finally, Meyer relies on a portion of her declaration stating that she believed instruction by Farmers not to conduct certain background checks "was a FINRA violation." But Meyer ignores the fact that the trial court sustained Farmers' objection to this paragraph of her declaration, and she does not challenge that ruling on appeal. Meyer has not produced evidence that she knew or complained about any actual FINRA violations, and the trial court did not err when it granted Farmers' motion for summary adjudication as to her 10th and 11th causes of action for whistleblower retaliation.
II. Motion for New Trial
Meyer moved for a new trial based on juror misconduct. She provided evidence that Juror Nos. 5, 6, 7, and 10 discussed the case outside of deliberations, Juror Nos. 8 and 9 were inattentive during trial and deliberations, Juror No. 12 improperly shared a personal experience during deliberations, and Juror No. 11 expressed impatience and an unwillingness to deliberate.
The trial court denied the motion, finding that Meyer failed to establish any misconduct was prejudicial. She disagrees. We conclude the trial court properly weighed competing juror declarations and correctly found that Meyer failed to establish prejudice.
A. Legal Standards
A verdict may be vacated, in part or in whole, on a motion for a new trial when juror misconduct materially affects a party's substantial rights. (§ 657, subd. (2).) When evaluating a motion for new trial based on juror misconduct, the trial court must undertake a three-step inquiry. First, the trial court must determine whether any affidavits supporting the motion are admissible under Evidence Code section 1150, which excludes evidence demonstrating the effect of statements or events on a juror's mental processes. (People v. Danks (2004) 32 Cal.4th 269, 301-302.) Juror affidavits may impeach a verdict if they refer to objectively ascertainable statements, conduct, conditions or events that may have improperly influenced the verdict, but they may not be used to show the subjective reasoning processes of jurors. (Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, 910; In re Hamilton (1999) 20 Cal.4th 273, 294.) We review the trial court's findings about the admissibility of evidence for abuse of discretion. (See Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345 (Barboni), citing Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885.)
Second, "If the evidence is admissible, the trial court must determine whether the facts establish misconduct." (People v. Dorsey (1995) 34 Cal.App.4th 694, 703.) Meyer, as the moving party, "bears the burden of establishing juror misconduct." (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625.) "'We accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.'" (Barboni, supra, 210 Cal.App.4th at p. 345, quoting People v. Majors (1998) 18 Cal.4th 385, 417.)
Lastly, if misconduct occurred, "'the trial court must determine whether the misconduct was prejudicial.'" (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160, quoting People v. Dorsey, supra, 34 Cal.App.4th at pp. 703-704.) On appeal, we review the entire record, including the evidence, and make an independent determination as to whether the misconduct was prejudicial. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161.)
B. Factual Background
1. Motion
Meyer filed her motion for a new trial pursuant to section 657. She argued juror declarations submitted with her motion showed that multiple jurors had committed misconduct. She also argued the misconduct was prejudicial because it was reasonably probable that if it had not occurred, the jury would have reached a result more favorable to her. On two special verdict questions of import, the jury poll indicated the vote was nine to three. Question number 6 of the special verdict form asked whether Farmers "fail[ed] to participate in a timely, good faith interactive process" with Meyer to determine whether a reasonable accommodation could be made. The jury voted nine to three to answer no, and Juror Nos. 2, 5, and 10 disagreed. Question number 11 asked whether Farmers failed to provide reasonable accommodation to Meyer for her disability. The jury voted nine to three to answer no, and Juror Nos. 5, 6, and 10 disagreed.
Meyer supported her motion with three juror declarations. Meyer claimed that Juror Nos. 5, 6, 7, and 10 were having outside discussions. Juror No. 2, the foreperson, stated that "[t]hroughout the trial and the deliberation process, I observed jurors talking about the case while on break and not in the presence of all jurors." She gave examples including a time when Juror Nos. 6 and 10 spoke in the hallway on a break and commented on what they thought about the case. Juror No. 2 also saw Juror No. 6 talking to Juror No. 7 while walking out of the courtroom about a point that had been made during deliberations, and Juror No. 5 was talking to another juror on a lunch break about trial testimony.
The motion also raised the purported inattentiveness of Juror Nos. 8 and 9. Juror No. 2 declared that she had observed Juror No. 8 using her laptop during deliberations. Juror No. 1 submitted a declaration stating that he observed Juror No. 9 on her phone during trial and deliberations, and Juror No. 8 using her laptop during deliberations. Juror No. 5 stated that during the presentation of evidence, she observed Juror No. 8 "fall asleep on at least two separate occasions for more than an extended period." She observed that Juror No. 8's eyes were closed, she was leaning back in her chair, with her head tilted toward her shoulder. Juror No. 5 also stated that Juror No. 8 "told all the jurors, including me, that she learned from Juror 9 to place her hands over her eyes during the presentation of evidence so that Judge, Attorneys, and other staff . . . could not notice she was asleep." She also stated that Juror No. 8 was using her laptop during deliberations, while the jury was discussing a question on the special verdict form. She observed Juror No. 9 "appear to be disengaged on several periods" during the presentation of evidence, including when she used her phone "for extended periods on at least three separate occasions." Juror No. 9 used her phone at least twice during deliberations.
Juror No. 1's declaration also recalled statements made by Juror No. 12 during deliberations regarding her experience at work. In Juror No. 5's declaration, she stated that on the first full day of deliberations, Juror No. 12 told the jury about her personal experience suffering carpal tunnel at work, and that she "was very vocal to her employer about needing to be accommodated, and if Ms. Meyer had been more vocal . . . that she could have been accommodated too." Juror No. 5 also stated that Juror No. 11 was impatient and frustrated during deliberations.
2. Opposition
Farmers' opposition argued that some of the evidence Meyer presented was inadmissible and, in any event, Meyer had not shown prejudice as a result of any purported misconduct. Farmers objected to Meyer's evidence and offered counter-declarations from several jurors.
Juror No. 9 denied that she ever fell asleep during trial, and stated that she never told Juror No. 8 how to place her hands over her eyes while sleeping. She stated that she put her head in her hands on one occasion to rest her head, but "continued to pay attention" to the testimony. She also stated that toward the end of deliberations, she saw Juror No. 8 "briefly use her laptop to respond to emails." Juror No. 9 stated that she listened to all of the testimony at trial and was active during deliberations. She "momentarily" used her phone to respond to messages, but continued to listen to the testimony.
Juror No. 4 stated that he did not hear Juror No. 8 say anything about learning to put her hands over her eyes in order to sleep. Juror No. 4 described Juror No. 8 was "very active" during deliberations, recalling evidence and testimony from the trial. Juror No. 8 also submitted a declaration, denying that she fell asleep at any point during the trial. She stated that she had a lot of back and neck pain from sitting in uncomfortable chairs, and would sometimes close her eyes to help her relax, but she did not fall asleep. She stated that "even when my eyes were closed, I continued to pay attention and listen to the testimony." She denied saying that Juror No. 9 had told her how to fall asleep, but at one point during trial she did ask Juror No. 9 if she had fallen asleep because her hands were over her eyes. Juror No. 9 responded that she had not.
Juror Nos. 4 and 8 stated that they did not hear any jurors discussing the case when not deliberating. Juror No. 8 acknowledged using her laptop "momentarily" during deliberations to complete "quick work-related tasks" such as responding to messages. She continued to pay attention and participate.
Juror No. 9 also stated that the comments about the accommodation process. by Juror No. 12 were not made during deliberations, but after the jury had voted and Juror No. 2 was completing the verdict form. Juror No. 4 recalled that Juror No. 12 made a comment regarding her personal experience during voir dire, but it was not discussed during deliberations. He recalled that after the jury had voted and Juror No. 2 was completing the verdict form, Juror No. 12 "stated she was very vocal to her employer about needing to be accommodated, and if Ms. Meyer had been more vocal at her job, she could have been accommodated too."
3. Reply
Along with her reply, Meyer filed rebuttal declarations from Juror Nos. 1 and 5. She also replied to Farmers' objections to evidence, and asserted her own objections to Farmers' evidence.
Juror No. 1 repeated that Juror No. 12 commented about her personal disability experience to the rest of the jurors on the first day of deliberations. She made this comment before the jury had voted and found against Meyer as to two questions on the special verdict form. Juror No. 5 echoed these statements about the timing of Juror No. 12's statements.
4. Ruling
The court's tentative ruling was to deny the motion. At the hearing, the court stated that the juror counter-declarations "pretty much obviate the prejudice, if not eliminate the issue." The court considered the alleged misconduct "not material enough" to meet the standard for a new trial. In particular, the court noted that the jurors alleged to have outside communications had voted in favor of Meyer. Nor did the court consider the phone use, which it described as "momentary," and the laptop use significant. The court found that it neither distracted jurors from deliberations nor from listening to testimony. The court also noted it did not feel the verdict was such "a close call that . . . maybe the misconduct could have pushed it over into a different decision."
The court issued its final ruling on July 29, 2022, a few weeks after the hearing, and denied the motion. The court first sustained some of Farmers' objections to Meyer's juror declarations pursuant to Evidence Code section 1150, subdivision (a). In considering whether the admissible evidence established misconduct, the court addressed the allegation that four jurors talked about the case outside the jury room during deliberations. The court found that talking about the case during deliberations but outside the presence of the full jury violated the court's instructions and constituted misconduct, therefore triggering the presumption of prejudice.
In assessing the competing declarations regarding Juror No. 8's laptop use, the court found that the accounts of Juror Nos. 1 and 2 "are vague as to exactly how long the laptop was in use but the totality of the evidence suggests that the use was brief or momentary, and not prolonged, and that Juror 8 did not use the laptop to access improper information." Given that the presiding juror did not report the laptop use at the time, the court found it was a "minor infraction." However, the court did consider the laptop use during deliberations as "evidence of misconduct due to inattentiveness."
Juror No. 5's account of Juror No. 9's use of her cell phone during testimony, the court found that the statement by Juror No. 5 was vague, but Juror No. 9 admitted that she "momentarily responded to messages on my phone" during testimony. Even though Juror No. 9 stated that she listened to the testimony at all times, the court found that "use of a cellphone implies limited inattentiveness which is misconduct." The court made the same findings regarding Juror No. 9's use of her cell phone during deliberations.
The court rejected the allegations that Juror Nos. 8 and 9 fell asleep, finding that the juror declarations stating that the jurors were sleeping were speculative, contrary to the court's own observations, and disputed by counter-affidavits from the jurors in question. No attorney or party representative reported any sleeping jurors during trial and Meyer had several attorneys present. The court found Juror No. 5's statements to be less credible than the counter-affidavits by Juror Nos. 8 and 9. The court also stated that it had personally observed Juror No. 8 lean her head back and close her eyes during trial "from time to time," but the court concluded that "the juror remained awake, attentive, and was apparently listening to the testimony."
The court found that the declarations did not establish that Juror No. 12 made comments regarding her experience with the accommodation process during deliberations. The declarations were "hopelessly conflicting" and the attempt to "fix the timing of a specific conversation" was "not credible, trustworthy, or reliable." Because the affidavits "do not preponderate in favor of either party," Meyer "did not prove that the conversations by Juror 12 occurred during deliberations. Moreover, even if the comments were made during deliberations, "it appears that this is not misconduct because Juror 12 was permissibly using her personal experience in analyzing the evidence, not bringing in new evidence," also noting that the juror mentioned the same history during voir dire.
The court ruled that the evidence of Juror No. 11's purported impatience was inadmissible. The court also noted that there was no evidence that any juror "heeded her request to hurry up," or that Juror No. 11 refused to deliberate or was inattentive. Thus, Juror No. 11 did not commit misconduct.
The court then assessed possible prejudice. When it considered the conversations that took place outside of deliberations, the court found that "there is insufficient evidence that these discussions were prejudicial and sufficient evidence to conclude the discussions were harmless." The court noted that Juror No. 2's declaration did not contain details regarding the import of the discussions, and considered this evidence of misconduct "weak and unconvincing." The court also noted that several of the conversations occurred between jurors who voted in favor of Meyer on the relevant special verdict questions, thus any outside conversations did not affect their vote to Meyer's detriment. The court concluded that the presumption of prejudice attributed to the outside conversations was rebutted.
When it considered the laptop and cell phone use, the court concluded that the evidence of inattentiveness was weak, particularly in light of the counter-declarations, which the court found credible. The court concluded that this misconduct was trivial and harmless and again, the presumption of prejudice was rebutted.
Finally, although the court had not found misconduct regarding Juror No. 12's statements of her personal experience, the court found that even if true, the misconduct was not prejudicial.
C. Analysis
1. Outside discussions (Juror Nos. 5, 6, 7, and 10)
It was essentially undisputed that Juror Nos. 5, 6, 7, and 10 discussed the case outside of deliberations. But Meyer argues that the trial court erred when it concluded the presumption of prejudice was rebutted regarding the discussions.
Meyer presented a declaration from Juror No. 2 relaying several of these discussions. It included Juror Nos. 6 and 10 commenting on what they thought about the case while on a break, Juror No. 6 talking to Juror No. 7 when walking out of the courtroom about a point that had been made during deliberations, and Juror No. 5 talking to another juror on a break about trial testimony.
We note that although Juror No. 5 provided two declarations in support of Meyer's motion and reply, she did not discuss these allegations of outside discussions.
This misconduct "'creates a presumption of prejudice that may be rebutted by a showing that no prejudice actually occurred.'" (People v. Flores (2021) 70 Cal.App.5th 100, 112, quoting People v. Williams (2006) 40 Cal.4th 287, 333.) The presumption can 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 resulting from the misconduct." (People v. Flores (2021) 70 Cal.App.5th at p. 112.) In other words, "The presumption is rebutted 'if the entire record . . . indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.'" (People v. Weatherton (2014) 59 Cal.4th 589, 598 (Weatherton).) "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." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417.)
In concluding that the presumption was rebutted, the trial court observed that Juror No. 2's declaration did not contain details reflecting what was discussed and that several of the conversations occurred between jurors who ultimately voted in favor of Meyer. As such, the court found that the evidence of misconduct was weak and there was little probability of actual prejudice from the misconduct. We agree. Only one juror, Juror No. 2, provided evidence of these outside conversations, and she did not provide any details as to their length or substance. This is a stark contrast with Weatherton, supra, 59 Cal.4th 589, the case Meyer relies upon. There, jurors engaged in serious and repeated misconduct, including a juror repeatedly telling others prior to deliberations that "he was going to vote guilty no matter what" and repeatedly telling another juror during their daily carpool that the defendant was guilty. (Id. at p. 596.) This juror "discussed the case during his daily commute, at lunch, during cigarette breaks, in court hallways, and in elevators. He telephoned non-deliberating jurors during deliberations, reporting what was occurring in the jury room." (Id. at p. 599.) Not surprisingly, the Supreme Court found this was serious misconduct and that the prosecution had not rebutted the presumption of prejudice, "[g]iven the nature, scope, and frequency of [the juror's] misconduct, along with his repeated and admitted untruthfulness on a variety of topics." (Id. at pp. 599600.) Here, the evidence of misconduct was significantly less egregious and non-specific. We agree with the trial court that the presumption of prejudice was rebutted.
2. Inattention (Juror Nos. 8 and 9)
Next, Meyer argues that Juror Nos. 8 and 9 committed multiple instances of misconduct by failing to pay attention during trial and deliberations. She contends that both jurors fell asleep during trial, that Juror No. 8 used her laptop during deliberations, and that Juror No. 9 used her cell phone during trial.
The trial court found no misconduct based on the allegation that Juror Nos. 8 and 9 were sleeping. Instead, it found the counter-declarations of these jurors, both of whom denied sleeping, more credible than the claims by Juror No. 5. The trial court's own observations of the jury during trial supported the conclusion that the jurors were not asleep. The trial court's factual findings are supported by substantial evidence, and we do not disturb them on appeal. (Barboni, supra, 210 Cal.App.4th at p. 345.)
Juror Nos. 8 and 9 both admitted the charges that they used either a cell phone or laptop during trial and deliberations to at least some degree, which would constitute misconduct. So the court moved on to the third step of the analysis and assessed whether the presumption of prejudice was sufficiently rebutted based on the totality of the circumstances.
Meyer contends that the juror declarations charging misconduct "remain unrebutted" because the statements by Juror Nos. 8 and 9 regarding their ability to pay attention while using devices reflected their mental state and were therefore inadmissible. But even if we were to disregard this portion of their declarations, Juror Nos. 8 and 9 also contested the contention that they used devices at great length during trial and deliberations. Instead, they stated that they used their devices only briefly and explained that they returned a few emails or responded to messages. The trial court was entitled to find them credible and to weigh them against the vague statements submitted in support of Meyer's motion. The trial court's finding that the use of these devices was brief and the degree of misconduct minor was supported by substantial evidence. We also agree with the trial court's conclusion, based on our review of the record, that the misconduct was not prejudicial. There was not showing that these devices were used in any way that involved the testimony or issues under consideration by the jury, and there was no reasonable probability of actual harm to Meyer resulting from the misconduct.
3. Personal experience (Juror No. 12)
Both parties presented juror declarations confirming that Juror No. 12 made some statements regarding her personal experience with a disability and her request for accommodation at work. The evidence was disputed, however, as to when these statements occurred. Meyer's juror declarations stated that Juror No. 12 shared this information during deliberations, prior to the jury's vote. Farmers' declarations, on the other hand, stated that Juror No. 12 made this statement during voir dire, then again after the jury had voted and while Juror No. 2 was signing the special verdict form. Meyer also relies on a paragraph in the declarations of Juror Nos. 1 and 5, stating that other jurors agreed with Juror No. 12 and agreed to vote in favor of Farmers because of their agreement. But Meyer ignores the trial court's ruling that found these statements regarding the jury's reaction to Juror No. 12's comments were inadmissible.
In light of the conflicting statements regarding the timing of Juror No. 12's statement, the trial court found insufficient evidence to establish misconduct. There was no error. It was Meyer's burden as the moving party to establish juror misconduct. (See Donovan v. Poway Unified School Dist., supra, 167 Cal.App.4th at p. 625.) She failed to do so. The trial court found it was not credible that the juror declarations purported "to fix the timing of a specific conversation during the lengthy trial and several days of deliberations." Meyer cites no basis in the record to overturn this finding.
Meyer argued below that Juror No. 4 also appeared impatient and unwilling to deliberate. She has not pursued that claim on appeal.
Meyer contends that Juror No. 11 expressed impatience with deliberations and therefore committed misconduct. Her only evidence supporting this claim is a statement by Juror No. 5, who reported that during deliberations, Juror No. 11 "appeared visibly frustrated, was adamant that she wanted to "hurry up" with the process and "get this over" because "gas prices are going up" and she did "not want to come back for another day." The trial court sustained Farmers' objections to this evidence pursuant to Evidence Code section 1050, subdivision (a).
Meyer contends the trial court should have admitted Juror No. 11's statements, analogizing to Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778 (Grobeson). Grobeson is inapposite. There, the juror stated that she had "made up my opinion on the second week of trial." (Id. at p. 785.) The trial court found the statement inadmissible under Evidence Code section 1150, concluding that the statement reflected juror's "mental processes and state of mind about how she reached her decision." (Ibid.) The appellate court reversed, noting that a statement reflecting a state of mind is admissible under Evidence Code section 1150 where "'the very making of the statement sought to be admitted would itself constitute misconduct.'" (Id. at p. 788, quoting In re Stankewitz (1985) 40 Cal.3d 391, 398.) Thus, the juror's statement was admissible because it reflected her prejudgment of the case, which itself was misconduct. (Grobeson, supra, 190 Cal.App.4th at p. 788.) Here, Juror No. 11's statements to "hurry up" during deliberations merely reflected her mental processes, not prejudgment of the case. The trial court correctly excluded this portion of Juror No. 5's declaration and Meyer has no other evidence to support her claim of misconduct by Juror No. 11.
Accordingly, we affirm the trial court's denial of Meyer's motion for new trial.
DISPOSITION
The judgment is affirmed. Farmers is entitled to its costs on appeal.
We concur: CURREY, P.J., MORI, J.
[*] Retired Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.