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Covarrubias v. Walt Disney World Co.6/9/2003
, the court replied: "You must decide the case on the evidence presented at trial and jury instructions."
Code of Civil Procedure section 614 requires the court to inform a jury already in deliberation when they have a disagreement "as to any part of the testimony, or if they desire to be informed of any point of law arising in the cause . . . ." The question here was not a disagreement as to testimony nor did it concern a point of law. (See Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1082.) Rather, the question dealt with an issue of fact, the determination of which is the jury's province. (See Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 970.) The court's response was in keeping with that principle.
Not until the reply brief does plaintiff specifically assert the court should have answered the question in the affirmative. But this presents several problems. We do not know what the jury meant by "depression." Neither party directs us to anywhere in the record that word was used, and we are not required to independently search for it. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
Moreover, plaintiff did not request a special instruction defining hole. "It is settled that a party may not complain on appeal that an instruction correct in law is too general or incomplete unless he had requested an additional or qualifying instruction. [Citations.]" (Agarwal v. Johnson (1979) 25 Cal.3d 932, 948-949, disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) Further, the word hole was not used in a technical or peculiarly legal sense, but is "commonly understood." (People v. Bonin (1988) 46 Cal.3d 659, 698, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; see People v. Estrada (1995) 11 Cal.4th 568, 574 [word with technical meaning is one whose definition is different from ordinary meaning].)
Plaintiff might have had an argument if the judge had answered the question in the negative. But he properly left the question open to the jury to determine for itself. Contrary to plaintiff's claim, the court's response did not prevent the jury from considering the issue. As noted, we found nothing in the record where the term depression was used. Thus, the jury had to have come up with the concept and the term itself. Obviously, at least one member of the jury flirted with the idea that a hole included a depression. Had a juror believed plaintiff was injured by stepping in a depression, there was nothing to prohibit making such a determination.
Plaintiff himself recognizes this point. He states that if the jury was considering that the core had slightly sunk or that plaintiff had stepped on the curve of a hole, it "could have answered the first inquiry on the verdict form affirmatively." We agree. But based on the unanimous verdict against plaintiff, the only reasonable inference is that the jury was not contemplating either of those scenarios. Further, as plaintiff reports, "shortly after receiving the trial court's response, the jury returned a verdict form, in favor of [defendant] . . . ." This brief deliberation tends to show the verdict was not close, and thus that there was no serious consideration of the concept. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2002) 8:304, pp. 8-137 to 8-138.) The court did not err in its response to the jury's question.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR:
MOORE, J.
IKOLA, J.
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