Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC372574 Richard L. Fruin, Judge.
Robert Mann and Donald W. Cook for Plaintiff and Appellant.
Lawrence Beach Allen & Choi and Jin S. Choi for Defendant and Respondent City of Culver City.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Bonifasio Santos, appeals following a jury trial from a judgment in favor of defendant, the City of Culver City. Plaintiff claimed he had been assaulted with a flashlight or a baton. The jury found Officer John Purnell did not intentionally strike plaintiff. On appeal, plaintiff contends: the jury selection process violated the Trial Jury Selection and Management Act (Code Civ. Proc., § 190 et seq.); the trial court should have excluded all of the testimony of Dr. Kent Tadatoshi Shoji; and it was error to dismiss plaintiff’s claim under the Tom Bane Civil Rights Act. (Civ. Code, § 52.1.)
II. BACKGROUND
The trial court sustained without leave to amend a demurrer to plaintiff’s complaint as to Officer Purnell. Plaintiff filed a January 23, 2008 first amended complaint against defendant for civil rights violations, assault, battery and negligence. He also asserted a cause of action under the Tom Bane Civil Rights Act, Civil Code section 52.1 (section 52.1). Defendant filed a judgment on the pleadings motion as to plaintiff’s section 52.1 cause of action. Defendant argued plaintiff had not alleged facts sufficient to satisfy the threats, intimidation or coercion element of the claim and the cause of action was not mentioned in his government tort claim. The judgment on the pleadings motion was granted. The trial court reasoned that although plaintiff had alleged excessive force in violation of his constitutional rights, he had not alleged any threat, intimidation or coercion. The trial court explained: “[W]hat the statute is trying to... get at... [is] police conduct which over laws the free will of a citizen and compels him or her to consent to something else that they did not have to consent to and probably would not have consented to but for the threat”; in other words, the threat, intimidation or coercion element would have to be something other than the excessive force.
Plaintiff filed a May 22, 2009 in limine motion to prevent Dr. Shoji from testifying. Plaintiff argued Dr. Shoji’s opinions were based on conversations with an emergency room treating physician, Dr. Roseanne Kay. In declarations dated December 15, 2004, and April 20, 2009, Dr. Shoji stated he discussed the treatment provided to plaintiff with Dr. Kay. Dr. Kay had no recollection of speaking with Dr. Shoji. The trial court found Dr. Shoji consulted with Dr. Kay without plaintiff’s permission. The trial court ruled Dr. Kay’s disclosure to Dr. Shoji violated the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.) and the Confidentiality of Medical Information Act. (Civ. Code, § 56.10.) The trial court ruled though Dr. Shoji could testify excluding what he learned from Dr. Kay provided his opinion was not dependent on her statements. The trial court subsequently held an Evidence Code section 402 hearing as to Dr. Shoji’s testimony. Plaintiff’s counsel, Donald W. Cook, questioned Dr. Shoji. Dr. Shoji testified he could exclude what Dr. Kay told him. Leaving out her statements, Dr. Shoji concluded plaintiff’s lacerations were caused by tree branches and not by a baton or other blunt instrument. Mr. Cook then stated: “I think the issue here goes to the weight. [¶]... [¶]... And I don’t think I have the basis to exclude [Dr. Shoji’s] testimony.” The trial court commented: “Dr. Shoji, I’ve already issued an order in response to an in limine motion that you should not disclose or utilize... any verbal comments given to you by Dr. Kay. Any communication that you had with her.”
The trial court selected 14 prospective jurors and directed that the 2 alternates would be chosen by lot prior to deliberation. There was an off-the-record discussion regarding juror selection. Mr. Cook raised an objection. The trial court overruled Mr. Cook’s objection. Later, Mr. Cook restated his objection, which had been overruled, on the record: “Plaintiff objects to the process. Plaintiff wants to know who the alternates are before plaintiff puts on the case. And as I understand it, your Honor has overruled the objection, and we’ll proceed to select the alternates as your Honor indicated.” The trial court noted: “[Y]ou did make the objection earlier. I overruled it.” Mr. Cook subsequently exercised four of the eight available peremptory challenges. (Code Civ. Proc., §§ 231, subd. (c); 234.) Mr. Cook then stipulated to accept the panel as constituted. The jury subsequently found nine-three in defendant’s favor. The two alternates did not participate in the deliberations.
There was conflicting evidence at trial whether Officer Purnell struck plaintiff in the head with a flashlight or a baton. There was testimony plaintiff was injured while running or when he fell. Plaintiff testified that following a foot chase, he was assaulted with a flashlight or a baton in an attempt to detain him for tagging. Officer Purnell testified he had nothing in his hands. Officer Purnell denied assaulting plaintiff. Officer Purnell testified plaintiff was merely tackled to the ground. As noted above, the jury found Officer Purnell did not intentionally strike plaintiff.
III. DISCUSSION
A. Jury Empanelment
Plaintiff contends the manner in which the trial court selected the alternate jurors was prejudicial error. We agree the trial court erred, but find plaintiff has not shown prejudice. Code of Civil Procedure section 234 provides in part: “Whenever, in the opinion of a judge of a superior court about to try a civil or criminal action or proceeding, the trial is likely to be a protracted one, or upon stipulation of the parties, ... immediately after the jury is impaneled and sworn, the court may direct the calling of one or more additional jurors, in its discretion, to be known as ‘alternate jurors.’” (Italics added.) It was a violation of Code of Civil Procedure section 234 to select 14 jurors at one time and to randomly select alternates prior to deliberation. (See People v. Glenn (1990) 225 Cal.App.3d 618, 620-623; United States v. Mendoza (7th Cir. 2007) 510 F.3d 749, 753; United States v. Delgado (6th Cir. 2003) 350 F.3d 520, 525; United States v. Sogomonian (2d Cir. 2001) 247 F.3d 348, 352-353; United States v. Brewer (11th Cir. 2000) 199 F.3d 1283, 1286; United States v. Love (4th Cir. 1998) 134 F.3d 595, 601, cert. den. (1998) 524 U.S. 932; United States v. Olano (9th Cir. 1995) 62 F.3d 1180, 1190, fn. 3; United States v. Sivils (6th Cir. 1992) 960 F.2d 587, 593-594; United States v. Aguon (9th Cir. 1988) 851 F.2d 1158, 1171 [en banc], disapproved on other grounds in Evans v. United States (1992) 504 U.S. 255, 258-259.) People v. Glenn, supra, 225 Cal.App.3d at pages 620-623, was decided under Penal Code section 1089 which, like Code of Civil Procedure section 234, directs that alternates be selected immediately after the jury is impaneled and sworn. The cited federal authority was decided under Federal Rules of Criminal Procedure, Rule 24(c) (Rule 24(c)). Rule 24(c) has been consistently construed as requiring that jurors and alternates be selected separately and sequentially prior to the presentation of evidence. (United States v. Mendoza, supra, 510 F.3d at p. 753; United States v. Delgado, supra, 350 F.3d at p. 524.) But deviation from the statutory juror selection sequence is reversible error only if plaintiff suffered prejudice by the method used. (Cal. Const., art. VI, § 13; see People v. Glenn, supra, 225 Cal.App.3d at p. 622; United States v. Mendoza, supra, 510 F.3d at p. 754; United States v. Delgado, supra, 350 F.3d at pp. 525-526; United States v. Sogomonian, supra, 247 F.3d at p. 353; United States v. Brewer, supra, 199 F.3d at pp. 1286-1287; United States v. Love, supra, 134 F.3d at p. 601; United States v. Sivils, supra, 960 F.2d at pp. 593-594; see also Buckley v. Chadwick (1955) 45 Cal.2d 183, 202-203; National Sanitary Rag Co. v. Lawrence (1939) 33 Cal.App.2d 198, 200; Riley v. Southern Pac. Co. (1922) 57 Cal.App. 477, 485-486.)
Here, plaintiff argues he was forced to exercise his peremptory challenges without knowing whether he was excusing actual jurors or alternates. That assertion does not demonstrate that had the statutory sequence been followed, there is a reasonable probability a more favorable verdict would have been returned. As the Court of Appeal explained in People v. Glenn, supra, 225 Cal.App.3d at page 622: “[N]o lawyer truly has control over who will ultimately sit on the regular jury and who will be alternates because of the uncertainty of jurors being dismissed for good cause throughout the course of the trial and deliberations. [To argue there was no opportunity to be involved in the selection of who would serve as alternate jurors and who would serve as regular jurors] presupposes that counsel select and treat alternates differently from members of the regular jury, a dangerous practice indeed, given the uncertainty as to who will ultimately serve on the latter.” Similarly, in United States v. Love, supra, 134 F.3d at page 602, the United States Court of Appeals for the Fourth Circuit found no prejudice and held: “[T]his was not a case where defendants were forced by the jury selection process to strike blindly, without knowing whether persons had even a remote possibility of hearing the evidence or deliberating. The defendants knew that every juror against whom they did not exercise a peremptory challenge, and thereby left in the box, would hear the trial evidence and more likely than not would deliberate. Every peremptory challenge utilized by the defense actually prevented the person challenged from hearing the evidence at trial and from deliberating thereafter.... It is difficult to discern any scenario in which the defendants could have been prejudiced. [Citations.]” Plaintiff has failed to demonstrate there is a reasonable probability of a more favorable result.
B. Dr. Shoji’s Testimony
With respect to Dr. Shoji’s testimony, plaintiff posits the following contentions. First, the trial court’s remedy for the alleged violation of federal and state laws prevented plaintiff from impeaching either Dr. Shoji or Dr. Kay by bringing out the fact of the purported unlawful communications. Dr. Shoji was Dr. Kay’s “boss, ” hence the unlawful communications affected Dr. Kay’s credibility. Second, plaintiff reasons that, knowing her “boss” had been retained by the defense, Dr. Kay would have conformed her testimony to that expected from her superior. Third, the only way plaintiff could demonstrate this credibility issue would be to disclose the alleged unlawful communications. These theories were not raised in the trial court. Plaintiff’s arguments are thus forfeited. (See People v. Anderson (2001) 25 Cal.4th 543, 592, fn. 17; People v. Williams (1997) 16 Cal.4th 153, 250; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 865, fn. 4; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1138; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1065-1066; Estate of Leslie (1984) 37 Cal.3d 186, 202.) Also, the trial court instructed Dr. Shoji not to testify as to any information he learned from Dr. Kay. The trial court never specifically precluded plaintiff from raising the purported unlawful communication on cross-examination of Dr. Shoji or Dr. Kay. (See People v. Samuels (2005) 36 Cal.4th 96, 115-116.) Further, plaintiff has not shown that he ever sought to cross-examine Dr. Shoji or Dr. Kay at trial as to their allegedly unlawful communication. Finally, plaintiff’s trial counsel conceded he had no grounds on which to exclude Dr. Shoji’s testimony. Plaintiff’s arguments concerning Dr. Shoji’s testimony do not permit reversal.
C. The Section 52.1 Cause Of Action
Plaintiff contends it was error to grant a judgment on the pleadings as to his section 52.1 cause of action. Section 52.1 provides in part: “(a) If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, .... [¶] (b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.” (Italics added.) As noted above, the trial court found there was no allegation of the requisite threat, intimidation or coercion. Plaintiff asserts that when a police officer intentionally strikes a person on the head in the course of detaining him, he has used the “threats, intimidation, or coercion” required by section 52.1. When the trial court ruled on defendant’s judgment on the pleadings motion, it of course assumed the truth of the facts as pleaded. (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 679, fn. 31; Board of Regents v. Davis (1975) 14 Cal.3d 33, 37, fn. 4; Colberg, Inc. v. California (1967) 67 Cal.2d 408, 411-412.) Now, however, we have a jury determination that Officer Purnell did not intentionally strike plaintiff on the head. Only if the judgment were reversed would plaintiff have a potential opportunity to litigate his section 52.1 claim. Here, however, we have not found any reversible error. Therefore, plaintiff’s arguments concerning section 52.1 are moot. (See Sanai v. Saltz (2009) 170 Cal.App.4th 746, 783, fn. 26; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1225, fn. 1; Hood v. Hacienda La Puente Unified School Dist. (1998) 65 Cal.App.4th 435, 437.)
IV. DISPOSITION
The judgment is affirmed. Defendant, the City of Culver City, is to recover its costs on appeal from plaintiff, Bonifasio Santos.
I concur: ARMSTRONG, J.
MOSK, J., Concurring
I concur
The jury selection method utilized in this case not only violated the law (Code Civ. Proc., § 234), but has been criticized. It “complicates peremptory challenges... [and] has a potential drawback: Sometimes, the jurors who are excused are those who would have been the strongest advocates for one side or the other, leaving a so-so remainder panel.” (Wegner et al., Cal. Practice Guide: Civil Trial and Evidence (2010) ¶ 5:585.) The authorities, while admonishing courts not to use the procedure, seem to agree that without specific prejudice being shown, the use of the procedure is harmless error. (People v. Glenn (1990) 225 Cal.App.3d 618, 622; State v. Lee (Vt. 2008) 967 A.2d 1161, 1171; United States v. Mendoza (7th Cir. 2007) 510 F.3d 749, 753; see United States v. Hill (7th Cir. 2008) 552 F.3d 541, 544.) As noted in State v. Lee, supra, 967 A.2d at page 1171, “Defendant has not argued that his right to peremptory challenges was impaired or that there was an additional juror that he wanted to challenge.” Our Supreme Court has cited People v. Glenn, supra, 225 Cal.App.3d 618, but only to distinguish it. (People v. Cottle (2006) 39 Cal.4th 246, 258, fn. 7.) Notwithstanding the condemnation of the procedure, this case demonstrates that it continues to be used.
Following the statutory requirements in this situation is not necessarily a mere technicality. Our Supreme Court has noted the sensitivity of the juror selection procedures. In People v. Lenix (2008) 44 Cal.4th 602, 623, the court stated, “Moreover, the selection of a jury is a fluid process, with challenges for cause and peremptory strikes continually changing the composition of the jury before it is finally empanelled. As we noted in People v. Johnson (1989) 47 Cal.3d 1194 [255 Cal.Rptr. 569, 767 P.2d 1047]: “[T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view. If the panel as seated appears to contain a sufficient number of jurors who appear strong-willed and favorable to a lawyer's position, the lawyer might be satisfied with a jury that includes one or more passive or timid appearing jurors. However, if one or more of the supposed favorable or strong jurors is excused either for cause or [by] peremptory challenge and the replacement jurors appear to be passive or timid types, it would not be unusual or unreasonable for the lawyer to peremptorily challenge one of these apparently less favorable jurors even though other similar types remain. These same considerations apply when considering the age, education, training, employment, prior jury service, and experience of the prospective jurors.” (Id. at p. 1220.) [¶] Ultimately, an advocate picking a jury is selecting a committee to decide the case. In addition to each panelist's individual characteristics, the group must be able to work together with courtesy and dispassion to reach a complex result with substantial consequences. An advocate is entitled to consider a panelist's willingness to consider competing views, openness to different opinions and experiences, and acceptance of responsibility for making weighty decisions. Once empanelled, the jury wields tremendous power over the outcome of the case.”
Here, the plaintiff’s lawyer was not able to determine the “committee” to decide the case. If a “favorable” or “strong” juror is excused, the party could not replace the juror with one of similar characteristics.
As the authorities appear to be in accord with holding no prejudice in this case, I concur. Nevertheless, if the offending practice is a continuing one, there should be some consequence or at least a further published admonition.