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Wong v. 396 Investment Co.5/17/2005
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The court then gave counsel the opportunity to question the juror. The only question asked was whether the juror "[felt] that the conversation that had with Mrs. Stevens in any way prejudice for or against any party in this case?" Juror No. 1 answered: "No." The juror was instructed not to discuss the matter with any of the other jurors, and was excused from the courtroom.
Thereafter, counsel commented on the juror's demeanor. One of the plaintiffs' attorneys stated the juror had been "incredibly forthright and credible in his responses." Indeed, Anaheim's counsel agreed, stating he believed that Juror No. 1 had been "forthright and honest" during the voir dire. Nonetheless, Anaheim asked for the juror to be excused and replaced by an alternate. The court agreed: "I was struck by the relaxed manner in which this witness - this juror, singled out and separated from the other jurors, discussed the events which are in question, and I believe he was truthful and exhibited a great deal of candor in his testimony before us."
The trial court's explanation for its decision to retain Juror No. 1 was deliberate and thoughtful. In sum, the court found that while the juror's conversation was improper, it did not touch directly upon the merits of the case. Despite the court's initial reaction that the juror would have to be replaced, the court's viewpoint had been changed by the juror's testimony and the fact that the remaining jurors had not been affected. Thus, based on the juror's demeanor during questioning and his credible statements that he could deliberate without bias, the court permitted Juror No. 1 to remain on the jury.
The decision to retain or dismiss a juror is within the trial court's discretion, and will be upheld if supported by any substantial evidence. (People v. Mincey (1992) 2 Cal.4th 408, 467.) If juror misconduct has occurred, it creates a presumption of prejudice. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417.) "Whether prejudice arose from juror misconduct . . . is a mixed question of law and fact subject to an appellate court's independent determination. [Citations.]" (People v. Nesler (1997) 16 Cal.4th 561, 582, fn. omitted.) If a review of the record reveals no prejudice resulted, reversal is not required. (People v. Zapien (1993) 4 Cal.4th 929, 994 (Zapien).)
Anaheim asserts it is "undisputed" that misconduct occurred, but the issue is not so clear. "A harmless communication is not misconduct. [Citations.]" (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, ยง 341, p. 387.) The court's voir dire of Juror No. 1 revealed that the brief exchange between the juror and Stevens did not influence his feelings about the case in any manner. "A mere communication between a witness and a juror in a civil case is not a ground for reversal unless the juror was influenced by such communication to the prejudice of one of the parties. [Citations.]" (Jarvis v. Southern Pac. Transportation Co. (1983) 142 Cal.App.3d 246, 256.) However, the communication in Jarvis was completely unrelated to the case, while the communication at issue here, while not directly relevant to the merits, was at least somewhat related to Stevens's damages. Thus, for the sake of argument, we will assume the communication constituted misconduct and turn to the issue of prejudice.
The presumption of prejudice created by juror misconduct "may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct. [Citations.] Some of the factors to be considered when determining whether
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