Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. CV146344
ELIA, J.Numerous plaintiffs unsuccessfully sued respondent Chevron U.S.A., Inc. (Chevron) based on a predecessor company's release of toxic substances into the surrounding area. On appeal, plaintiffs contend that the trial court erred in overruling their challenges of three prospective jurors for cause. We conclude, however, that plaintiffs forfeited this issue by failing to exhaust their peremptory challenges. Accordingly, we will affirm the judgment.
Background
This action arose from the contamination of a site occupied by the California Spray-Chemical Company ("Cal-Spray"). After Cal-Spray was purchased by Chevron's predecessor, Standard Oil of California, the residents of an adjacent property successfully sued Chevron for negligence. In the present action, hundreds of plaintiffs living in various "zone[s] of contamination" alleged that they, too, had been harmed by the Cal-Spray contamination.
Plaintiffs' fourth amended complaint asserted 11 causes of action for nuisance, trespass, fraudulent concealment, negligent misrepresentation, negligence, and strict liability for an ultrahazardous activity. The trial court set a bellwether trial and ordered the parties to select three plaintiffs each "in order to get a representative sampling of verdicts." Eventually only four of those plaintiffs were before the jury.
During pre-trial proceedings the court granted plaintiffs' motion in limine to prevent Chevron from relitigating the issue of negligence decided in the previous action. The court advised the prospective jurors that "[a] jury has already found Chevron to be negligent by causing lead and arsenic to travel from Chevron's property onto other property in Watsonville, California, and you are bound by that decision. This means that you must accept the fact that Chevron is negligent."
Voir dire took place over two days in January 2007. Plaintiffs challenged prospective jurors Francis, Tripp, and Lynch for cause. Francis was challenged because she owned stock in Chevron, and Lynch was challenged because he did not "see any reason for a large number in pain and suffering." Tripp, a Wells Fargo Bank employee in the commercial lending department, had handled loans in the Watsonville area of concern. Initially she could not think of anything about herself that would affect her ability to be a fair juror. Subsequently, however, she acknowledged that as lender, the bank wanted property values to be high to sustain the loan, and if the property were downgraded, it would affect the bank's financial performance. Plaintiffs' counsel asked whether she would be thinking about her job and her bonus "and things like that" if she learned that there had been contamination in that area. Tripp responded, "I would think about it if I knew if it was one of my clients and that would affect my portfolio, but I would try to be open. If I didn't know the . . . client, I would keep an open mind." Counsel again suggested that she might have clients in the area and might have written loans in the area. He again asked if it would impact her impartiality. Tripp answered, "It might."
Francis did not know how much stock she owned, and she believed that her ownership "would have no impact whatsoever." On the other hand, she thought that an injury "would have to be pretty big to not work the rest of your life."
Plaintiffs' challenges for cause were denied as to Francis, Lynch, and Tripp. Plaintiffs used their fifth peremptory challenge to remove Francis and the sixth to remove Lynch. The court later reconsidered plaintiffs' challenge for cause-- or alternatively, to reopen voir dire-- of Tripp. After reviewing the record of the prior questioning, however, the court expressed the opinion that no "conclusion" had been reached that this potential juror could not be fair; "we needed that third question, I think, or something further to address that issue." Counsel explained that he had not asked additional questions to elicit further information because he had not wanted to alert the jury that a three-mile area was involved. The court denied the motion, however, stating that counsel had had an obligation and opportunity to follow up with a relevant question and failed to do so. After further questioning of prospective jurors, both parties passed further challenge and trial commenced.
On February 14, 2007, Chevron's motion for nonsuit was granted as to one plaintiff, Edgar Guillen. Two days later the jury returned a verdict in Chevron's favor as to the remaining two. Bridgette Guerrero was found not to have been exposed to lead and arsenic from Chevron operations, while Susan Reyes and Ruben Valverde were found to have been exposed to those substances but suffered no harm resulting from the exposure. Judgment was thereupon entered for Chevron as to all four bellwether plaintiffs.
Discussion
Plaintiffs contend that the trial court erred when it refused to dismiss Francis, Lynch, and Tripp for cause. Plaintiffs seek de novo review of the court's decision as to those challenges that "involve implied bias"—specifically, Francis's stock ownership and Tripp's commercial loan portfolio. (See Code Civ. Proc., § 229.) As to Lynch, plaintiffs contend that the court abused its discretion because Lynch had an "actual bias" in the form of a "present limitation" on damages for pain and suffering. (See Code Civ. Proc., § 225.) And to the extent that all of the challenged rulings were discretionary, plaintiffs maintain that the court abused its discretion because there was no substantial evidence to support them.
Chevron raises a threshold issue that obviates application of multiple standards of review. Code of Civil Procedure section 231, subdivision (c), ("section 231(c)") prescribes the number of peremptory challenges to be granted in a civil case. Normally each party is entitled to six peremptory challenges. If, however, "there are more than two parties, the court shall, for the purpose of allotting peremptory challenges, divide the parties into two or more sides according to their respective interests in the issues. Each side shall be entitled to eight peremptory challenges. If there are several parties on a side, the court shall divide the challenges among them as nearly equally as possible. If there are more than two sides, the court shall grant such additional peremptory challenges to a side as the interests of justice may require; provided that the peremptory challenges of one side shall not exceed the aggregate number of peremptory challenges of all other sides. If any party on a side does not use his or her full share of peremptory challenges, the unused challenges may be used by the other party or parties on the same side." (§ 231(c).) As Chevron points out, this case involved multiple parties constituting two sides. Plaintiffs were therefore entitled to eight peremptory challenges.
Plaintiffs do not contend that section 231(c) dictated only six challenges. Instead, they assert that Chevron's "claim" that they had eight peremptory challenges "is not supported in the record." Without citation to the record, they maintain that the court "ordered" that the parties "were each entitled to six peremptory challenges pursuant to C.C.P. § 231(c)."
Even if plaintiffs' assertion were supported by reference to the record, it would be unavailing. The statute accorded plaintiffs eight peremptory challenges. If the court indeed "ordered" that the parties were limited to six, it was incumbent on plaintiffs to call attention to the additional allowance for multiple parties. The court is not required to advise the parties as to the number of challenges to which they are entitled. (Cf. People v. Schindler (1969) 273 Cal.App.2d 624, 642 [predecessor to section 231 does not require the court to inform criminal defendant that he had a right to 20 peremptories].)
Plaintiffs further attempt to avoid the statute by observing that Chevron "does not explain in its Brief what multiple sides were entitled to eight peremptories under C.C.P. § 231(c)." But the statute clearly focuses on multiple parties, not multiple sides. If there are more than two parties, then the court must divide them into two or more sides and allocate eight peremptory challenges to each side. Here there were two sides, each of which was entitled to eight challenges.
"It has long been the rule in California that exhaustion of peremptory challenges is a 'condition precedent' to an appeal based on the composition of a jury." (Kimbley v. Kaiser Foundation Hospitals (1985) 164 Cal.App.3d 1166, 1169; accord, Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 1672-1673; cf. People v. Kipp (1998) 18 Cal.4th 349, 365 [to raise claim on appeal that a juror should have been excused for cause, defendant must have exhausted his peremptory challenges or justify failure to do so]; People v. Bonilla (2007) 41 Cal.4th 313, 339 [to preserve claim of error in the denial of a challenge for cause, defendant must exercise peremptory challenge of that prospective juror, exhaust peremptory challenges, and object to the jury as finally constituted].)
It is thus apparent that plaintiffs have forfeited their contention on appeal that the trial court erred in overruling their challenges for cause. Had they called attention to the statutory allowance of eight peremptory challenges, the trial court, we presume, would have permitted enough peremptories to enable plaintiffs to remove Tripp as well as Francis and Lynch. Although plaintiffs did object to retaining Tripp on the panel and even sought reconsideration of the denial of their challenge for cause, nevertheless they did not exercise a peremptory challenge of her or object to the final composition of the jury on the ground that they were entitled to additional peremptory challenges. In light of this conclusion, it is unnecessary to reach the question of whether the three prospective jurors should have been dismissed for cause based on actual or implied bias. (Cf. Burns v. 20th Century Ins. Co., supra, 9 Cal.App.4th at p. 1673 [forfeiture by failure to exhaust peremptories renders moot failure to exclude all insureds of defendant insurer].)
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J.PREMO, J.