Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court for Los Angeles County, No. BC361178, Ralph W. Dau, Judge. Reversed.
Selman Breitman and Dennis M. Alexander for Defendant and Appellant.
Steinbrecher & Associates and Edward Steinbrecher for Plaintiff and Respondent.
Manella, J.
Plaintiff Donna Tannen (Tannen) tripped on a step and fell outside the building in which she worked. Her injuries resulted in several surgeries, debilitating pain, and more than $200,000 in medical bills. She sued several companies and/or people involved in the construction of the building, for negligence and premises liability. She reached settlements with all but one of the defendants: defendant and appellant Leonard La Vern Palmer, Jr., doing business as Inland Valley Contracting (Palmer). The case against Palmer went to trial before a jury, and the jury returned a verdict in favor of Palmer. Tannen moved for a new trial on the ground of juror misconduct, and the trial court granted the motion. Palmer appeals from the order granting a new trial. We agree with the trial judge’s evidentiary rulings regarding portions of declarations attesting to juror misconduct. Nevertheless, as we find no logical nexus between any misconduct and the jury’s verdict, we are compelled to reverse the grant of a new trial.
Her husband, David Tannen, also sued the same defendants for loss of consortium.
BACKGROUND
Palmer was the general contractor on the construction of a building in Redlands that was leased by J&B Importers, Inc., a company that distributes bicycles and bicycle parts. He was hired to construct the building in accordance with plans and specifications developed by RKZ, Inc., an architectural firm. This case involves the construction of a staircase called for in the plans -- the staircase ran from an emergency exit door (called the man-door) to the ground -- and the sidewalk leading up to that staircase.
The architectural plans did not indicate the number of steps or the height of each step for the staircase. The architect could not provide this information at the time he drew the plans because the civil engineer had not completed grading plans. The plans simply indicated that the staircase would run from the man-door down to a landing that would be level to and connect with a sidewalk that ran to the parking lot. The plans stated: “Contractor to verify stair rise and run with final grading plan.” In other words, the contractor had to determine from the grading plans the height of the top landing and the desired height of the lower landing (in order to be level with the sidewalk), and compute the number and height of steps needed to connect the two.
Palmer hired subcontractor Guy Yokum Construction (Yokum) to build the staircase, among other things. Although Palmer suggested to the concrete foreman for Yokum that there should be either five steps at a height of six and five-sixteenths inches or six steps at a height of five and a quarter inches (for a total height of approximately 31 and a half inches), he left it to Yokum to make the final determination as to the number and height of the steps. Yokum built the staircase with four steps at a height of seven inches, for a total height of 28 inches.
Palmer did not notice there were only four steps until several weeks after they were built, when the subcontractor for the sidewalks, curbs, and gutters -- Craig Company Concrete (Craig) -- notified him that there was a problem. At that time, the foreman for Craig told Palmer that the lower landing of the staircase was too high to comply with the plans, which called for the sidewalk from the parking lot to be essentially level from the curb to the lower landing of the staircase. Although Palmer could have required Yokum to fix the elevation problem, he instead instructed Craig to put in a step from the sidewalk to the landing. The step was just under four inches high, with several grooves across the edge of the step to provide a visual warning.
Actually, the plans required a two-percent slope from the building to the curb for water drainage, but a layperson generally would not perceive the sidewalk to be sloped.
The plans required all exterior stairs to have similar grooving.
Palmer did not contact the architect about the addition of this additional step, nor did he seek written approval for it, although he was required to get written permission from the architect if he wanted to modify the plans. According to the architect, it would be unusual to place a single step at the bottom of a staircase, because “it’s [a] potential accident.” Palmer, however, did not believe that industry standards prohibited him from putting in the single step.
Tannen was a sales manager for J&B Importers, working out of its facility in Redlands. She was at work on the morning of June 30, 2005, when she decided to take a break. She walked out the front door and was going to walk around the building, but it was very hot outside. She saw some stairs leading up to the man-door, and decided to go up the stairs and sit for a while. She had never been up those stairs before. After sitting for about 15 minutes, she walked down the stairs and fell when she failed to see the small step from the landing to the sidewalk.
The fall caused fractures of her right patella and left wrist, both of which required surgery. There were serious complications from the surgery, which resulted in multiple hospitalizations and debilitating pain over the next two or more years. In October 2006, she filed a lawsuit against Palmer and others, alleging that the small step off the landing of the staircase was a defective and dangerous condition. Her husband also asserted a claim for loss of consortium.
The case proceeded to trial against Palmer. Before trial, Tannen filed a motion in limine to exclude any reference to the fact that the City of Redlands Building Department did not issue any citation of a violation with regard to the step at issue. At the same time, she asked the trial court to take judicial notice of portions of the California Building Code and to instruct the jury to accept the noticed matters as fact. There was extensive argument before the trial court regarding the use at trial of evidence regarding the building code and/or the lack of any citation for violations of the building code. At one point during the argument, the trial court noted that there was no need to present evidence regarding the building code because Tannen did not assert negligence per se and Palmer did not claim compliance with the code as a defense. The parties ultimately agreed that issues regarding the building code would not be presented at trial, and that the parties would rely upon standard industry practices to establish or refute negligence.
By the time of trial, Tannen had settled with all defendants except Palmer.
Each side presented expert witnesses to show that the step at issue was contrary to (according to Tannen’s witness) or in accordance with (according to Palmer’s witness) standard industry practices. The jury returned a special verdict finding (by a nine-to-three vote) that Palmer was negligent, but (by a ten-to-two vote) that Palmer’s conduct was not a substantial factor in causing harm to Tannen and her husband.
The Tannens moved for a new trial on three grounds: insufficiency of the evidence, verdict against the law, and jury misconduct. In support of their motion, they submitted declarations from two jurors, Roberto Frayre and Jay Goldberg. Frayre declared that one of the jurors, Bernadette Fajardo, said during deliberations that a building inspector is required to inspect and approve construction, and that if anything were not up to code, the inspector would make the contractor change it. He also declared that several other jurors discussed the fact that there could not have been any building code violations because a certificate of occupancy would not have issued had there been violations. Finally, he declared that several jurors discussed the fact that Palmer’s negligence was not a substantial factor in causing Tannen’s injuries because there were no building code violations. Goldberg’s declaration was almost identical to Frayre’s declaration, except that he did not identify Fajardo.
Palmer supported his opposition to the motion for a new trial with declarations from six jurors, including Fajardo. Two of the jurors admitted that the topic of the building code came up in discussions, but that the jurors determined that they could not discuss or consider it in their deliberations because it was not evidence. The other four jurors declared that, although there were general discussions as to whether there were building code violations and whether the certificate of occupancy would have issued if there were violations, “these general discussions were in the context of whether or not the step in question was negligently built by Mr. Palmer in connection with Question No. 1 on the Verdict. These discussions had nothing to do with whether or not Mr. Palmer was a substantial factor in causing Ms. Tannen’s injuries.” All six jurors declared that they did not consider any building code issues in casting their votes on the second question, i.e., whether Palmer’s conduct was a substantial factor in causing Tannen’s injuries.
Palmer objected to the juror declarations submitted by Tannen, and Tannen objected to portions of Palmer’s juror declarations (i.e., everything except the statements that the building code was discussed during deliberations). The trial court sustained Palmer’s objections to the portions of the declarations in which Frayre and Goldberg stated that the jurors discussed that Palmer’s negligence was not a substantial factor because there were no building code violations, finding that those statements violated Evidence Code section 1150. The court overruled Palmer’s objections to the remainder of the declarations. The court also sustained all of Tannen’s objections to the juror declarations that Palmer submitted.
The court found that the admissible portions of the juror declarations demonstrated jury misconduct because they demonstrated that the jurors considered matters outside the record. In determining that the jury misconduct was prejudicial, the court noted that evidence regarding the building code was excluded in accordance with the parties’ agreement, and the case came down to “[a] battle of the experts... over whether the single step violated industry standards.” The court observed that the experts were “pretty much in a standoff” and that the jurors’ “discussion of inspections and the Building Code bears directly on whether the city’s inspector considered the single step to have met the applicable Code.” The court stated that it “finds the conclusion inescapable that consideration of these issues improperly influenced the vote of one or more jurors. It is central to what they were trying to decide.” Therefore, the court granted the motion for a new trial. Palmer timely appealed from the court’s order.
DISCUSSION
On appeal, Palmer challenges the trial court’s ruling sustaining Tannen’s objection to portions of the jurors’ declarations. He also asserts that the trial court’s order granting a new trial, which he contends is reviewed under a de novo standard of review, was improper because the juror misconduct did not cause prejudice. We reject Palmer’s challenges to the trial court’s evidentiary rulings and adopt a deferential abuse of discretion standard of review. However, we find that any discussion of Palmer’s compliance or non-compliance with the building code could have been relevant only to the jury’s determination of negligence. As the jury found Palmer negligent, but found his negligence was not a substantial factor in causing Tannen’s injuries, we conclude there was no basis for the court’s finding of prejudice, and that the grant of a new trial, therefore, was an abuse of discretion.
A. Evidentiary Ruling
As noted above, Tannen submitted juror declarations in support of her motion for a new trial, stating that the building code and the absence of building code violations -- subjects about which no evidence was presented at trial -- were discussed during deliberations. In response, Palmer submitted declarations from several jurors in which the jurors admitted that those subjects were discussed, but the declarations also attempted to explain why those discussions did not impact the verdict. The trial court sustained Tannen’s objection to all portions of Palmer’s juror declarations except those portions in which the jurors admitted that the building code and absence of violations were discussed. Palmer contends on appeal that the trial court erred by excluding the portion of four of the declarations in which each juror declared: “However, these general discussions [about the building code and the absence of violations] were in the context of whether or not the step in question was negligently built by Mr. Palmer in connection with Question No. 1 on the Verdict. These discussions had nothing to do with whether or not Mr. Palmer was a substantial factor in causing Ms. Tannen’s injuries.” We find no error.
Palmer’s assertion that the trial court excluded the entirety of the declarations is incorrect. Although the court sustained the entirety of Tannen’s objections, Tannen did not object to the entirety of the declarations.
Evidence Code section 1150 (section 1150) provides in relevant part: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” The Supreme Court has explained that under this statute, “jurors may testify to ‘overt acts’ -- that is, such statements, conduct, conditions, or events as are ‘open to sight, hearing, and the other senses and thus subject to corroboration’ -- but may not testify to ‘the subjective reasoning processes of the individual juror.’” (In re Stankewitz (1985) 40 Cal.3d 391, 398.) The court cautioned, however, that even if the juror is testifying to “overt acts,” trial courts must be careful to avoid admitting evidence that “implicate[s] the reasoning processes of jurors” and “improperly open[s] such processes to scrutiny.” (Ibid.)
Palmer argues that the declaration portion at issue is simply an objective statement of what each of the declarant jurors observed, rather than evidence of the reasoning process of the juror, because the declaration merely says that the building code issues were discussed during the discussion of Palmer’s negligence. We are not persuaded. The declarations state that discussions of the building code issues “were in the context of” whether Palmer was negligent, rather than “in the context of” whether the negligence was a substantial factor in causing Tannen’s injuries. While in some sense the declarations reported the timing of the improper discussions -- and thus reported the jurors’ observation of an “overt act” -- the primary purpose of the declarations was to attempt to show the way in which the improper information was used. In other words, the declarations were meant to show the reasoning processes of the jurors. Heeding the warning of the Supreme Court, the trial court properly excluded the portions of the declarations that implicated the jurors’ reasoning processes. (In re Stankewitz, supra, 40 Cal.3d at p. 398.)
B. Order Granting New Trial
In challenging the order granting a new trial, Palmer correctly notes that such an order ordinarily is reviewed for an abuse of discretion. (See, e.g., Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 59.) He argues, however, that a de novo standard of review applies in this case because the trial court did not adequately specify its reasons for granting the motion (citing Oakland Raiders v. National Football League (2007) 41 Cal.4th 624), and because the issue in this case is whether prejudice exists, which Palmer asserts is a mixed question of law and fact subject to independent review (citing Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499 and Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202). His reliance on those cases is misplaced.
In Oakland Raiders v. National Football League, supra, 41 Cal.4th 624, the Supreme Court held that, if a trial court fails to file a statement of reasons in support of an order granting a new trial, the burden of persuasion on appeal (which ordinarily falls on the party seeking reversal) is shifted to the party seeking to uphold the trial court’s order. (Id. at pp. 640-641.) But that decision was, in the words of the Supreme Court, “a narrow one.” (Id. at p. 640.) As the court explained, it “address[ed] only the situation in which there is conflicting evidence on the issue of juror misconduct, not the question whether misconduct, shown by the record, is prejudicial. [The decision] d[id] not address the situation in which apparently conflicting declarations can be reconciled, so that on close examination it is determined that the crucial allegations of misconduct are not in dispute.” (Ibid.)
In the present case, the crucial allegations of misconduct were not in dispute. All of the juror declarations stated that the jurors discussed matters upon which no evidence had been presented. To the extent Palmer’s juror declarations sought to present conflicting evidence (at least with regard to how the improper matters were used in reaching a verdict), Tannen’s objections to the declarations were properly sustained. Moreover, the trial court in this case did file a statement of reasons in support of its order granting the new trial motion. Therefore, the burden-shifting rule set forth in Oakland Raiders v. National Football League, supra, 41 Cal.4th 624 does not apply.
Similarly, the independent review required by Enyart v. City of Los Angeles, supra, 76 Cal.App.4th 499 and Karlsson v. Ford Motor Co., supra, 140 Cal.App.4th 1202 does not apply here because that standard of review is used only in appeals from the denial of a new trial motion. As the Supreme Court has explained, there is a critical distinction between appeals from orders granting and orders denying a new trial, a distinction that results in large part from the application of article VI, section 13 of the California Constitution. (People v. Ault (2004) 33 Cal.4th 1250, 1260, 1271.) That constitutional provision states in relevant part: “No judgment shall be set aside, or new trial granted... on the ground of misdirection of the jury... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.)
When a motion for a new trial is denied, the grounds for that motion are assessed on appeal from the underlying final judgment against the complaining party. In that appeal, “article VI, section 13 of the California Constitution obliges the appellate court to conduct an independent examination of the proceedings to determine whether a miscarriage of justice occurred. As in any appeal from a final judgment, the reviewing court must determine for itself whether errors denied a fair trial to the party against whom the judgment was entered.” (People v. Ault, supra, 33 Cal.4th at pp. 1261-1262, fn. omitted.)
But as the Supreme Court explained, when a trial court grants a motion for a new trial, appellate “review of that ruling cannot result in an order of an appellate court setting a judgment aside, or granting a new trial. Under these circumstances, we conclude, article VI, section 13 of the state Constitution does not compel de novo appellate review of the trial court’s prejudice determination before that ruling is affirmed on appeal. [¶] The trial court’s constitutional obligation, upon a motion for new trial, to examine the record independently for prejudicial error ‘changes the approach to [prejudicial] error on appeal, after it has been successfully urged in the trial court.’ [Citation.] In such circumstances, all presumptions favor the trial court’s order, and prejudice, at least, need not be independently redetermined.” (People v. Ault, supra, 33 Cal.4th at p. 1271.) Thus,“an appellate court adequately serves the constitutional policy when it reviews the trial court’s prejudice determination for abuse of discretion.” (Id. at p. 1272, fn. omitted.)
Recognizing this deferential standard, we are nonetheless unable to affirm the grant of a new trial. As explained below, we perceive no basis for concluding that any improper consideration of building code compliance could have impacted the jury’s verdict on the one finding favorable to Palmer, namely the lack of causation.
The jury was asked to make two separate determinations: first, whether Palmer’s conduct in constructing the step was negligent; second, whether any such negligence was a substantial factor in causing Tannen’s injuries. Whether the step was constructed in compliance with the building code -- like Tannen’s other theories of potential negligence, viz., a failure to build in accordance with the plans, a failure to seek written approval to modify the plans, and a failure to verify the number and height of the stairway steps -- was clearly relevant to the determination whether Palmer was, in fact, negligent in constructing the step. An inference that Palmer had built the step consistent with the building code might have resulted in a finding of no negligence, but that is water under the bridge, as the jury found that he was negligent. We are unable to see, however, how consideration of Palmer’s compliance with the building code could be relevant to any issue other than negligence. Specifically, we can discern no nexus between any inference the jury could conceivably have drawn from speculating that Palmer had complied with the building code and its determination that the negligently built step was not a substantial factor in causing Tannen’s injuries. That the jurors themselves recognized the distinction between these two considerations is reflected in their vote: a nine-to-three finding that Palmer was negligent, and a ten-to-two determination that his negligence was not a substantial factor in causing Tannen’s harm.
In closing arguments, both counsel noted the distinction between the elements of negligence and substantial factor, i.e., causation.
DISPOSITION
The order is reversed. Palmer shall recover his costs on appeal.
I concur: Epstein, P.J., Willhite, J.,
I respectfully dissent. I would find the trial court did not abuse its discretion by granting the motion for a new trial.
As I see it, the question is not, as my colleagues state, how consideration of Palmer’s compliance with the building code could be relevant to any issue other than negligence. Clearly it is not. Rather, the question is whether the jury could have found Palmer’s construction of the single step was not negligent because the single step complied with the building code, while at the same time finding that he was negligent for other acts, which acts did not cause Tannen’s injury. I believe the answer is that the jury could have made such findings.
Tannen’s attorney argued in closing argument that Palmer was negligent in many ways: (1) he did not build in accordance with the plans, which called for a flat level walkway; (2) he failed to get written authority to modify the plans even though he was required to do so; (3) he failed to verify the number and height of the steps for the stairway; (4) he failed to do what was necessary to avoid adding a single step; and (5) he put in a single step, which is against the standard of practice in the industry. In light of the many theories of negligence pursued by Tannen, the jury might well have found that Palmer was negligent because, for example, he did not build in accordance with the plans, seek written approval to modify the plans, and/or verify the number and height of the steps for the stairway. But given the improperly considered absence of building code violations, the jury could also have rejected Tannen’s argument that the actual construction of the step was negligent. The evidence of juror misconduct showed that certain jurors discussed the fact that there could not have been any building code violations because a certificate of occupancy would not have issued if there had been violations. From these discussions, the jury could have concluded that the step, as built in place by Palmer, “met Code” and was approved by the building inspector, meaning that it was safe and was not negligently constructed. Having concluded that the step was safe and was not negligently constructed, the jury could have further concluded that Palmer’s negligence in not following the plans, not seeking approval for a modification, and/or not verifying the number and height of the steps in the stairway did not cause Tannen’s injuries. Because this latter scenario is plausible, I cannot say that the trial court abused its discretion in concluding that the jury misconduct was prejudicial.