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Saakyan v. Modern Auto10/31/2002
tual harm to the complaining party resulting from the misconduct. Some of the factors to be considered in this connection 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." ' [Citation.]" (English v. Lin, supra, 26 Cal.App.4th at p. 1364, original italics.)
From the trial court's ruling, we infer it denied the new trial motion on the ground there was no jury misconduct.
B. Reenactment not misconduct.
Defendant contends the trial court erred in denying its motion for new trial because the jury committed misconduct in reenacting the testimony and demonstration of plaintiffs' expert Rosenbluth during trial.
1. Facts.
At trial, Rosenbluth demonstrated to the jury how the left rear tire would have hit the fender well and leave a "witness mark" on the left rear fender well of the buck. After putting the buck under load and exercising the suspension, he had the buck tilted a bit so the jury could see where the tire intersected with the inner fender well lip. Rosenbluth then testified, "If we look at this tire we're going to see a witness mark that goes all the way around to where this tire was making contact with the fender well while the vehicle was in motion. . . . . e have a vehicle going down the road . . . . We retard the left rear, it's going to draw the car to the left."
During deliberations, the jury requested "permission to examine the Honda buck along with the left rear wheel/tire. Also request permission to exercise cable assembly. Left rear lug nuts, hand tightened."
Defendant objected to the jury's request based on its concern the jury might not accurately re-enact the events of the accident, thereby creating new evidence, that defendant would be unable to rebut. Defendant observed Rosenbluth's exhibit was not a replica of the vehicle on the day of the accident because the left-rear fender lip had not been bent back to match the fender lip of Saakyan's Honda as it was on the day of the accident. Defendant also claimed hand tightening the lug nuts, as the jury requested, differed from the wrench tightening Rosenbluth did. Plaintiffs responded that the jury had been made quite aware, through direct and cross-examination of Rosenbluth, just how the exhibit differed from Saakyan's Honda.
The court overruled defendant's objection and allowed the jury to be alone in the courtroom with the buck and court personnel.
After the plaintiffs' verdict was returned, defendant moved for new trial on the ground, in reenacting Rosenbluth's demonstration, the jury actually conducted an experiment resulting in newly created evidence, upon which the jury then relied in rendering its verdict.
Defendant submitted juror declarations in support of its new trial motion. Viewing the admissible portions of the jurors' affidavits (Evid. Code, ยง 1150, subd. (a); Krouse v. Graham (1977) 19 Cal.3d 59, 80), they show Juror M. "placed a wheel and tire on the `buck' and hand- tightened the lug nuts. [Juror V.] then deployed the crank as far as it could possibly go so that the fender came down over the tire. The shock absorber/coil springs were compressed to a maximum stress. Thereafter, four or five jurors stepped forward and placed their hands between the top of the tire and the wheel well to check clearance. Then the wheel was turned and the tire was rotated to see if any marks would be created on the tire. The demonstration produced a mark on the tire . . . ." This description by Juror I., was corroborated by Jurors M., T., and R.
The trial court concluded there was no misconduct,
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