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Stevens v. 396 Investment Co.5/17/2005
rength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued." (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417, fn. omitted.)
In the case before us, it is undisputed that the "misconduct," to the extent the exchange was misconduct, actually occurred. With respect to the "nature and seriousness" of the misconduct, this case falls somewhere between the two extremes. On the one hand, when such communications are completely unrelated to the litigation, appellate courts generally find that such communications are not prejudicial. (See, e.g., City of Los Angeles v. Lowensohn (1976) 54 Cal.App.3d 625, 637-638 [juror asked plaintiff's expert witness a question unrelated to action; witness refused to answer question or converse with juror].) On the other hand, extensive interaction related to the case is clearly far more serious and likely to be prejudicial. On balance, this case falls toward the less serious end of the spectrum, because, while at least somewhat relevant to the litigation, the exchange was extremely brief and did not expose Juror No. 1 to any inadmissible evidence.
We find it extremely unlikely that any prejudice actually occurred. As counsel aptly pointed out, to the extent Juror No. 1 felt any sympathy for or affinity for Stevens, such feelings most likely arose from the very fact that she had cancer, not from the brief exchange between them. Juror No. 1 did not first learn of Stevens's condition during this exchange, but rather on the witness stand. If Anaheim was concerned that jurors might feel undue sympathy for Stevens's plight due to their own experiences with serious illness or cancer, the opportunity to explore this occurred during jury selection. Simple questioning during jury selection would have revealed that a potential juror had recently lost a close relative to the same disease from which Stevens suffered.
Anaheim offers no argument as to why the brief hallway exchange, as opposed to the pre-existing facts, was likely to create or reinforce any bias on Juror No. 1's part. Moreover, the presumption of prejudice was rebutted by the voir dire of Juror No. 1. Juror No. 1 stated the conversation had not prejudiced him for or against any party. Both the trial court and counsel, including Anaheim's attorney, agreed the juror had been honest and credible in his voir dire testimony.
The juror's statements during voir dire, and the court's subsequent conclusions that he had been honest, effectively rebut any presumption of prejudice. Indeed, after the voir dire, Anaheim's only objection was that the brief exchange had created a "connection" between Juror No. 1 and Stevens that would "consciously or unconsciously" result in bias. We find any such "connection" based on the brief exchange highly unlikely. As discussed above, if Juror No. 1 felt any affinity for Stevens, it would most likely have been based on the facts about Stevens's cancer presented during testimony, not their brief exchange. Moreover, Juror No. 1 stated that no such connection existed; he had merely been curious. "People pass away of cancer every day."
Further, the only significant difference between Stevens's version of the exchange and Juror No. 1's was that the juror believed Stevens had told him she was in remission. His version, therefore, downplayed the significance of the illness and decreased any likelihood of sympathy, and therefore prejudice.
In Zapien, supra, 4 Cal.4th at page 993, a juror had inadvertently overheard a reporter stating that the defendant had made threats against the guards that would be carried out if he received the death penalty. Upon l
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