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Salyer v. 396 Investment Co.5/17/2005
nst the guards that would be carried out if he received the death penalty. Upon learning of this, the trial court asked the juror whether he could disregard what he had heard and base his verdict solely upon the evidence. The juror answered that he could, and could also remain fair and impartial. (Ibid.) On appeal, the California Supreme Court found no error. The juror's response during voir dire rebutted any presumption of prejudice. "The trial court held a hearing, outside the presence of the other jurors, at which [the juror] pledged he would not divulge this information to his fellow jurors and would disregard it in performing his duties as a juror. In his opinion, he still could be fair and impartial. The trial court, which had the benefit of observing [the juror]'s demeanor, stated it believed him. According proper deference to this finding, we uphold the ruling of the trial court, concluding that the record rebuts the presumption of prejudice and that there is no substantial likelihood the incident prejudiced defendant." (Id. at p. 994.)
The information the juror learned in Zapien, supra, 4 Cal.4th 929, a death penalty case, was directly relevant to the issue of the defendant's future dangerousness. Yet the court found, based on the juror's statements during questioning, that he could disregard the information and be impartial, and there was no likelihood of prejudice. Here, as in Zapien, "The effect of this questioning was to admonish the juror to disregard the information, which [the juror] pledged he would do." (Id. at pp. 996-997.) " his court has held that ` he presumption of prejudice may be dispelled by an admonition to disregard the improper information. [Citations.]' [Citation.] `We generally presume that jurors observe such instructions.' (Ibid.)" (Id. at p. 996.)
Here, the information learned was far less likely to be prejudicial. Juror No. 1 stated his brief exchange with Stevens would have no effect on his decision in the case. The questioning had the effect of an admonishment to disregard what he had learned, which itself was not likely to be prejudicial. Any "connection" that might have existed between the juror and Stevens was a result of the common fact of cancer in their lives, an issue that could have been explored during jury selection, not due to their brief hallway conversation. Thus, we find the court's exercise of its discretion in this matter to be supported by substantial evidence.
K. ELECTION OF REMEDIES:
Anaheim contends that the court turned the city into a "deep pocket" by requiring it to pay more in damages than a non-public entity would have to pay, i.e., not only tort damages but also inverse condemnation damages. Put another way, Anaheim asserts that there was only one wrong, i.e., slope failure, but that the court erred in refusing to make the plaintiffs elect one theory of recovery together with one set of remedies. More particularly, Anaheim maintains, on a tort theory plaintiffs might recover relocation expenses and possibly emotional distress damages, but not attorney fees. On the other hand, Anaheim says that on an inverse condemnation theory the plaintiffs might recover attorney fees, and perhaps relocation expenses (pursuant to an administrative procedure), but not emotional distress damages. Anaheim complains that by allowing the plaintiffs to recover under all theories, the door was improperly left open for them to recover under all attendant remedies.
We are not convinced by the authorities Anaheim cites. "`Broadly speaking, election of remedies is the act of choosing between two or more concurrent but inconsistent remedies based upon the same state of facts. . . .' [Citations.] `The doctrine of election o
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