DAVID MARTIN v. AAA FLAG BANNER MANUFACTURING COMPANY INC

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Court of Appeal, Second District, California.

DAVID MARTIN, Plaintiff and Appellant, v. AAA FLAG & BANNER MANUFACTURING COMPANY, INC., Defendant and Respondent.

B210962

Decided: February 18, 2010

Law Office of David J. Duchrow, David J. Duchrow and Jill A. Piano for Plaintiff and Appellant. Courteau & Associates, Diana L. Courteau and Cynthia R. Bozzone for Defendants and Respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

A jury returned a verdict against plaintiff and appellant David Martin (plaintiff) and in favor of his former employer, AAA Flag & Banner Manufacturing Company, Inc. (defendant), on plaintiff's claim that he was illegally discharged because of his high blood pressure.   On appeal, plaintiff argues that (1) the trial court erred when it denied his motion for a new trial because a juror failed to disclose that he was a law school classmate of one of defendant's attorneys;  (2) defendant's counsel engaged in prejudicial misconduct during trial;  and (3) the trial judge was biased against him.

We conclude that (1) the trial court properly denied plaintiff's motion for a new trial because substantial evidence supported the trial court's implied finding that no jury misconduct occurred;  (2) plaintiff has failed to demonstrate prejudice from the alleged acts of attorney misconduct;  and (3) there is no support in the record for plaintiff's claim of judicial bias.   We therefore affirm the judgment.

BACKGROUND1

Defendant was in the business of manufacturing and printing signs and banners.   Plaintiff worked at defendant's Orange County location, known as Bannerland, from June 2004 to June 2005.   At first, he sewed banners;  he later moved to the laminating department.   Plaintiff also worked a second job sewing hang-gliding harnesses at a company called High Energy Sports.   The general manager and sole supervisor at Bannerland was Mark Bilecky.

In October 2003, plaintiff was diagnosed with high blood pressure, for which he was prescribed medication.   In February or March 2005, plaintiff told Mark Bilecky that he had high blood pressure and that he needed surgery to correct varicose veins, which plaintiff then believed to be related to his high blood pressure.   Plaintiff, however, did not have the surgery during his employment at Bannerland.2

On Saturday, June 4, 2005, plaintiff began work at 5:00 a.m. At 7:00 a.m., he left work for more than an hour to get breakfast.   Plaintiff failed to clock out during his break.   A fellow employee, Jose Santibanez, discovered that plaintiff had failed to clock out and reported the matter to Mark Bilecky.   Plaintiff and Santibanez did not get along, and were “constantly fighting.”   The following Monday, Bilecky called plaintiff into his office to discuss plaintiff's failure to clock out.   Plaintiff became angry and aggressive and left Bilecky's office without resolving the matter.   Plaintiff then proceeded to berate and threaten Santibanez.

Bilecky later became aware of plaintiff's conduct toward Santibanez and, on the morning of Wednesday, June 8, 2005, Bilecky called both plaintiff and Santibanez to his office.   Bilecky told plaintiff that threats of bodily harm against another employee would not be tolerated in the workplace.   Plaintiff again became aggressive and began to “rant and rave.”   Plaintiff left the building just after 11:00 a.m., and he did not return to work that day or the next.   Plaintiff came to Bannerland on the morning of Friday, June 10, but he left after five minutes.   Bilecky subsequently received a voice mail from plaintiff on his home phone in which plaintiff requested his paycheck.   Bilecky informed defendant's human resources department that plaintiff had abandoned his position and resigned.

Plaintiff's version of events differed.   Plaintiff testified that, although Mark Bilecky was the general manager of Bannerland, plaintiff's direct supervisor was a print operator named Mark Vincent.   Plaintiff testified that he left work on June 8 not because he was angry, but because he was not feeling well.   Plaintiff testified that he told Mark Bilecky that he had a doctor's appointment for his high blood pressure that day.   Plaintiff admitted, however, that he did not go to the doctor because he did not want to spend the money.   Plaintiff testified that he called in sick the following day, and that when he returned to work on Friday, June 10, he was fired by Mark Vincent on the instructions of defendant's owner, Howard Furst.   According to plaintiff, Vincent told him that he was being fired because Howard Furst was afraid that plaintiff's high blood pressure might cause plaintiff to “fall and hurt [him]self.”   When plaintiff tried to ask Mark Bilecky why he was being fired, Bilecky refused to talk to him.

Two weeks after he was fired, plaintiff called Mark Vincent to ask for a letter of recommendation to help plaintiff get a new job.   Vincent wrote a letter of recommendation for plaintiff on Bannerland letterhead.   The letter stated, among other things, that plaintiff had been fired by defendant because of his high blood pressure.

Mark Vincent testified that he had never been a manager or had any supervisory authority at Bannerland.   He admitted that he wrote the letter of recommendation at plaintiff's request;  that he had not been authorized by defendant to do so;  and that some of the statements in the letter were exaggerated and other statements were false.   Vincent testified that plaintiff had asked him to include in the letter the assertion that plaintiff had been fired due to his high blood pressure.   Vincent agreed to include the statement because he wanted to help plaintiff, who was “a friend[ ] trying to get a job.”   He also wanted to return a favor that plaintiff had done him by selling him a used car at a good price.

After deliberating less than an hour, the jury found for defendant by a vote of 11 to one.   Plaintiff thereafter filed a motion for a new trial,3 supported by a declaration from plaintiff's attorney.   Defendant filed no opposition, and the trial court did not rule on the motion.   The motion was therefore deemed denied by operation of law, pursuant to Code of Civil Procedure section 660.4  (See generally Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899.)   Plaintiff timely appealed.

DISCUSSION

A. Motion for a New Trial on Grounds of Jury Misconduct

1. Additional Background

Defendant's lead counsel at trial was attorney Diana Courteau.   She was assisted by an associate, Kris Demirjian.   Demirjian was introduced to the prospective jurors, including prospective juror Patrick Clark.   The trial court then asked the prospective jurors-including Clark-whether any of them “kn[e]w or recognize[d] ․ any of the lawyers․”  Clark did not respond.   Demirjian thereafter actively participated in jury selection, although he did not personally voir dire the prospective jurors.5

During voir dire by the trial court, prospective juror Clark stated that he was an attorney who worked in the corporate department at the law firm of Paul, Hastings, Janofsky & Walker.   He had no litigation experience.   He had attended Loyola Law School and was admitted to the bar in November 2007.   When examined by plaintiff's attorney, Clark stated that he had worked on an employment discrimination matter while a summer associate;  he did not like transactional legal work;  and he read the Wall Street Journal.   Defense counsel did not examine Clark.   Clark was not asked and did not state during voir dire when he graduated from law school.   Clark was selected as a juror, and he was one of the 11 jurors who found for defendant.

Plaintiff filed his motion for a new trial on June 18, 2008.   In his motion, plaintiff made a one-paragraph argument that a new trial should be granted because Clark and Demirjian both had graduated from Loyola Law School in May 2007, and Clark had failed to disclose that fact during voir dire.   Plaintiff cited no evidence to support his claim.

Plaintiff later filed a declaration from one of his attorneys, James K. Autry.   Autry declared, “The website for Paul Hastings's Los Angeles office states that Mr. Patrick Clark graduated from Loyola Law School in May 2007, the same month and year as defense counsel [presumably, Demirjian].”   Plaintiff submitted no other evidence in support of his motion.

2. Relevant Legal Principles and Standard of Review

Section 657 provides that the trial court may grant a new trial if, inter alia, there was misconduct of the jury that materially affected the substantial rights of the moving party. (§ 657, subd. (2);  see generally, Wegner et al., California Practice Guide:  Civil Trials and Evidence (The Rutter Group 2009) ¶ ¶ 18:131 to 18:140.5, pp. 18-31 to 18-34.3 (rev.# 1, 2009) (Civil Trials).)   A juror who conceals relevant facts during the voir dire examination commits misconduct.  (People v. Majors (1998) 18 Cal.4th 385, 417;  accord, In re Hitchings (1993) 6 Cal.4th 97, 111;  Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625 (Donovan );  Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 189.)   On a motion for a new trial, the moving party bears the burden to establish that jury misconduct occurred.  (Donovan, supra, 167 Cal.App.4th at p. 625.)  “ ‘In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry.  [Citation.]  First, it must determine whether the affidavits supporting the motion are admissible.  (Evid.Code, § 1150.)   If the evidence is admissible, the trial court must determine whether the facts establish misconduct.  [Citation.]  Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial.’  [Citation.]”  (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160.)   Whether a prospective juror committed misconduct by concealing relevant information on voir dire is a question of fact.  (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 59 (Ovando ).)

If the trial court does not rule on a motion for a new trial within 60 days after the clerk of the court mails the notice of entry of judgment, the motion is deemed denied by operation of law. (§ 660;  see Civil Trials, supra, ¶ 18:367, p. 18-77 (rev.# 1, 2003).)   On appeal, we review the denial of a motion for a new trial by operation of law under the same standard of review we would apply if the trial court had made an explicit ruling denying the motion.   (In re Marriage of Liu (1987) 197 Cal.App.3d 143, 152;  Estate of Shepard (1963) 221 Cal.App.2d 70, 73;  Strauch v. Bieloh (1936) 16 Cal.App.2d 278, 281 [“The discretion of the trial judge must be deemed to have been exercised in permitting the motion to be denied by lapse of time exactly the same as though that discretion were used in affirmatively passing on the motion”].)   We will infer that the trial court made all factual findings in support of the order.  (Jie v. Liang Tai Knitwear Co. (2001) 89 Cal.App.4th 654, 666-667.)   We defer to the trial court's implied findings of historical fact and implied credibility determinations if they are supported by substantial evidence.  (People v. Schmeck (2005) 37 Cal.4th 240, 294;  Ovando, surpra, 159 Cal.App.4th at p. 59;  accord, Donovan, supra, 167 Cal.App.4th at pp. 624-625.)

If jury misconduct occurred, there is a rebuttable presumption that the moving party was prejudiced.  (In re Hamilton (1999) 20 Cal.4th 273, 295.)  “Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.  [Citation.]”  (Id. at p. 296.)   We “review[ ] the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial.' ”  (Nazari v. Ayrapetyan (2009) 171 Cal.App.4th 690, 693-694.)

2. Analysis

Plaintiff argues that the trial court erred in denying his motion for a new trial because Clark failed to disclose during voir dire that he and Demirjian were classmates at Loyola Law School.6  Plaintiff's claim of error fails because substantial evidence supported the trial court's implied finding that no jury misconduct occurred.

The record establishes that Demirjian was present in court and actively participated in jury selection.   When jury selection commenced, Demirjian was introduced to the prospective jurors as one of defendant's attorneys.   The trial court asked the prospective jurors-including Clark-whether any of them “kn[e]w or recognize[d] ․ any of the lawyers․”  Clark did not respond, thus indicating that he did not know or recognize Demirjian.   Clark's negative response to the trial court's unambiguous question constituted substantial evidence that, in fact, Clark did not know or recognize Demirjian.   Accordingly, we must defer to the trial court's implied finding that no jury misconduct occurred.

The evidence cited by plaintiff does not compel a contrary conclusion.   Even if we accept arguendo plaintiff's assertion that Clark and Demirjian both graduated from Loyola Law School in May 2007,7 that fact does not establish that Clark “concealed” anything.   Clark was asked by the trial court whether he knew or recognized Demirjian.   The mere fact that Clark and Demirjian graduated at the same time from the same law school does not, without more, establish that he did.   There was no evidence, for example, that Clark and Demirjian matriculated in the same program at Loyola (i.e., day or evening), or that they were enrolled in classes together, or that they participated in any of the same extra-curricular activities.   Clark truthfully disclosed, when asked, that he had attended Loyola;  Clark was not asked and did not state when he graduated.   Accordingly, plaintiff “failed to establish the factual predicate of his juror concealment claim-namely, that [Clark] concealed relevant facts or gave false answers during voir dire.”  (People v. Majors (1998) 18 Cal.4th 385, 418;  see also People v. Wilson (2008) 44 Cal.4th 758, 823-824 [trial court erred in concluding that juror “concealed” what he was never asked to disclose];  People v. Duran (1996) 50 Cal.App.4th 103, 107-108, 114-115 [when defendant failed to show that juror's dating relationship with relative of murder victim “was anything more than casual,” defendant failed to establish that juror concealed material information by responding negatively to the question whether the juror “ ‘had anyone close to [her] who’[d] been the victim of a violent crime or any serious crime' ”].)   The trial court properly denied defendant's motion for a new trial on the ground of jury misconduct.8

On appeal, plaintiff also argues that he should have been granted a new trial because attorney Demirjian committed misconduct by failing to disclose that he and juror Clark were law school classmates.   Plaintiff, however, raised no such argument in his motion for a new trial.   He may not do so for the first time on appeal.  (Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422 [points not argued in the trial court will not be considered for the first time on appeal];  accord, Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 371, fn. 8.)

B. Misconduct of Defense Counsel

1. Additional Background

The trial court granted plaintiff's motion in limine to exclude evidence that plaintiff's daughter was employed by one of plaintiff's trial attorneys.   The trial court also stated that it was issuing an order “precluding that she [plaintiff's daughter] was an attorney” unless defense counsel first asked the trial court to make a ruling pursuant to Evidence Code section 352.

During her opening statement, defense counsel told the jury that the evidence would show, among other things, that plaintiff's attendance at work was poor during the last 6 to 8 weeks of his employment, plaintiff had another employee clocking in and out for him, and plaintiff had concealed from defendant that he was working a second job.   Defense counsel then stated, “The evidence will also show four months after [plaintiff's] daughter becomes a lawyer, [plaintiff]-” Plaintiff's counsel objected;  the trial court sustained the objection.

During his direct case, plaintiff called Craig Furst, defendant's Vice President and the son of defendant's owner, Howard Furst, to testify pursuant to Evidence Code section 776.   On direct examination, plaintiff's attorney attempted to establish the validity of the letter of recommendation written by Mark Vincent stating that plaintiff was fired because of his high blood pressure.   On cross-examination, defense counsel examined Craig Furst % rregarding his conversations with Vincent in which Vincent had disavowed the letter.   Craig Furst testified that Vincent said that plaintiff had sold Vincent a car, and that Vincent wrote the letter because he “was kind of doing [plaintiff] back a favor.   But [Vincent] didn't realize that [plaintiff] was setting up a lawsuit.   And [Vincent] basically told me that [plaintiff's] daughter is a lawyer-.”  Plaintiff's counsel objected;  the trial court sustained the objection and struck the testimony.   The trial court later told defense counsel to warn her witnesses not to mention that plaintiff's daughter was a lawyer.

During defense counsel's cross-examination of plaintiff, defense counsel asked, “By the way, is this your daughter in the courtroom?”   Plaintiff's counsel objected on relevance grounds;  the trial court sustained the objection.   After trial proceedings had concluded for the day and the jury had been sent home, defense counsel stated that, “with this question asking if [plaintiff's] daughter was in the courtroom, we believe this is the third time the [order granting the] motion in limine has been violated.  [¶] We are going to request a mistrial, or in the alternative an instruction to the jury to unring a bell regarding this issue of his daughter.”   The trial court asked plaintiff's counsel to clarify whether plaintiff was moving for a mistrial or requesting an admonition to the jury.   Counsel responded that plaintiff withdrew his request for a mistrial, but was “asking for the instruction to the jury.”   The trial court stated that “we will deal with that at the time we deal with the final arguments and instructions.”

Near the end of trial, the trial court held a conference at which the trial court and counsel went through the jury instructions in detail.   Plaintiff's counsel did not raise the issue of an admonition relating to plaintiff's daughter.   At the end of the conference, plaintiff's counsel stated that “the only issue we have left unresolved” related to plaintiff's contention that defendant had waived its right to rely on after-acquired evidence to justify firing plaintiff.   The next morning, plaintiff's counsel raised a few additional issues relating to the jury instructions;  again, he did not raise the issue of an admonition relating to plaintiff's daughter.

The trial court instructed the jury that the attorneys' questions were not evidence.   The trial court further instructed, “If I sustained an objection to a question, you must ignore the question․  If the witness already answered, you must ignore the answer.  [¶] During the trial I granted a motion to strike testimony that you heard.   You must totally disregard that testimony.   You must treat it as though it did not exist.”

2. Analysis

Plaintiff argues that the judgment should be reversed due to the alleged misconduct of defendant's trial attorney in violating the order precluding evidence or comment that plaintiff's daughter was an attorney.9  Even if we assume that misconduct occurred, plaintiff has failed to demonstrate reversible error.   In assessing whether attorney misconduct requires reversal, we examine the entire record to determine whether it is reasonably probable the appealing party would have achieved a more favorable result in the absence of the alleged misconduct.  (Cassim, supra, 33 Cal.4th at pp. 801-802.)

We do not believe it is reasonably probable that the three incidents cited by plaintiff affected the outcome.   Courteau's reference to plaintiff's daughter in her opening statement was fleeting, and the trial court immediately sustained plaintiff's objection.   There is no indication in the record that Craig Furst's testimony regarding plaintiff's daughter was anything other than an inadvertent violation of the in limine order;  he had not been asked about plaintiff's daughter, but was recounting what he had been told by Mark Vincent about the letter of recommendation.   The trial court sustained plaintiff's prompt objection, struck the testimony, and admonished Courteau to warn defendant's witnesses not to mention the matter.   Finally, plaintiff does not explain and we cannot discern from the record how Courteau's question whether plaintiff's daughter was in the courtroom violated the in limine order, or how plaintiff might have been prejudiced thereby.   There is no indication, for example, that plaintiff's daughter was seated at counsel table or that the jury could otherwise identify her as an attorney from her mere presence in the courtroom.   Indeed, another of plaintiff's daughters was not only present at trial, but testified on plaintiff's behalf-yet plaintiff does not complain that the jury drew an adverse inference from her mere presence in the courtroom.   In any event, plaintiff never responded to the question, as the trial court sustained plaintiff's prompt objection.

Plaintiff complains that he requested a jury admonition, but the trial court did not give one.   But the trial court could not have admonished the jury when requested because the jury had been sent home for the day.   Plaintiff never renewed or obtained a ruling on his request, notwithstanding a lengthy conference with the trial court regarding jury instructions.  (See Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 710-713 [generally, burden is on counsel to obtain a ruling on evidentiary matters].)

Moreover, no separate admonition was necessary to cure any prejudice.   The trial court instructed the jury not to consider the attorney's questions as evidence, not to consider questions or testimony to which an objection had been sustained, and not to consider testimony that had been stricken.   Those instructions effectively instructed the jury not to consider any of the three incidents of alleged misconduct.   Absent some contrary indication in the record, we must presume that the jurors followed the trial court's instructions.  (Cassim, supra, 33 Cal.4th at p. 803.)

Finally, given the state of the evidence, we do not believe it is reasonably probable that these minor instances of purported misconduct could have had any effect on the outcome.   Plaintiff's case was not overly strong.   The jury had a basis to reject plaintiff's testimony.   Plaintiff's only piece of objective evidence that he was discharged because of his high blood pressure was the letter of recommendation, which was both suspicious on its face and seemingly discredited at trial.   The jury deliberated less than an hour, indicating that it did not consider the case a close one.   Plaintiff has failed to demonstrate reversible error.

C. Judicial Bias

Defendant contends that the judgment must be reversed because the trial judge engaged in conduct that cast doubt on his impartiality-specifically, that the trial judge failed to sanction defense counsel for perceived instances of pretrial misconduct as severely as plaintiff might have liked.10  Plaintiff's claim lacks merit.   None of the instances of judicial bias alleged by plaintiff occurred during trial or in the presence of the jury.   Plaintiff has failed to explain how such incidents affected his right to a fair trial when the jury was unaware of them.   The circumstances in Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, upon which plaintiff relies, bear no resemblance to the circumstances in this case.

In any event, we have reviewed the entire trial record and found no support for plaintiff's claim of judicial bias.   Plaintiff has failed to demonstrate error.

DISPOSITION

The judgment is affirmed.   Defendant is to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. We set forth the facts in the light most favorable to the jury's verdict, resolving all conflicts and drawing all inferences in favor of that verdict, and deferring to all implicit credibility determinations of the trier of fact.  (Kelly v. CB & I Constructors, Inc. (2009) 179 Cal.App.4th 442, 447, fn. 1;  see also Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal.App.4th 206, 218;  Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1233, fn. 2.).  FN1. We set forth the facts in the light most favorable to the jury's verdict, resolving all conflicts and drawing all inferences in favor of that verdict, and deferring to all implicit credibility determinations of the trier of fact.  (Kelly v. CB & I Constructors, Inc. (2009) 179 Cal.App.4th 442, 447, fn. 1;  see also Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal.App.4th 206, 218;  Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1233, fn. 2.)

FN2. At trial, both plaintiff and his physician testified that plaintiff's varicose veins probably were unrelated to his high blood pressure.   Plaintiff had the surgery for his varicose veins in March 2006, approximately nine months after he left Bannerland..  FN2. At trial, both plaintiff and his physician testified that plaintiff's varicose veins probably were unrelated to his high blood pressure.   Plaintiff had the surgery for his varicose veins in March 2006, approximately nine months after he left Bannerland.

FN3. The motion for a new trial was, it appears, incorrectly designated and inadvertently omitted from the record on appeal.   We have obtained a certified copy and on our own motion order the record augmented to include it.  (Cal. Rules of Court, rule 8.155(a)(1)(A).).  FN3. The motion for a new trial was, it appears, incorrectly designated and inadvertently omitted from the record on appeal.   We have obtained a certified copy and on our own motion order the record augmented to include it.  (Cal. Rules of Court, rule 8.155(a)(1)(A).)

FN4. Statutory references are to the Code of Civil Procedure unless stated otherwise..  FN4. Statutory references are to the Code of Civil Procedure unless stated otherwise.

FN5. Demirjian also cross-examined two relatively minor witnesses at trial..  FN5. Demirjian also cross-examined two relatively minor witnesses at trial.

FN6. Plaintiff has forfeited his contention on appeal with respect to alleged misconduct by attorney Demirjian.  (See post.).  FN6. Plaintiff has forfeited his contention on appeal with respect to alleged misconduct by attorney Demirjian.  (See post.)

FN7. In fact, plaintiff failed to submit competent evidence to establish this point.  “[E]vidence presented by affidavit in connection with a motion for new trial, like oral testimony at trial, must be given from personal knowledge and cannot contain hearsay.”  (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 105;  accord, Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 1670-1671.)   The declaration of plaintiff's attorney, insofar as it related to Clark, was inadmissible multiple hearsay.  (Evid.Code, §§ 1200, 1201.)   As it related to Demirjian, the declaration failed to establish the personal knowledge of plaintiff's attorney regarding where Demirjian went to law school or when he graduated.  (Evid.Code, §§ 403, subd. (a)(2), 702.)   A pro forma statement that a declarant has personal knowledge of the facts set forth in a declaration is not sufficient-the personal knowledge of the declarant must appear from the facts set forth in the declaration.  (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 692, fn. 1;  Snider v. Snider (1962) 200 Cal.App.2d 741, 754 [such pro forma statements have “no redeeming value and should be ignored”].).  FN7. In fact, plaintiff failed to submit competent evidence to establish this point.  “[E]vidence presented by affidavit in connection with a motion for new trial, like oral testimony at trial, must be given from personal knowledge and cannot contain hearsay.”  (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 105;  accord, Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 1670-1671.)   The declaration of plaintiff's attorney, insofar as it related to Clark, was inadmissible multiple hearsay.  (Evid.Code, §§ 1200, 1201.)   As it related to Demirjian, the declaration failed to establish the personal knowledge of plaintiff's attorney regarding where Demirjian went to law school or when he graduated.  (Evid.Code, §§ 403, subd. (a)(2), 702.)   A pro forma statement that a declarant has personal knowledge of the facts set forth in a declaration is not sufficient-the personal knowledge of the declarant must appear from the facts set forth in the declaration.  (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 692, fn. 1;  Snider v. Snider (1962) 200 Cal.App.2d 741, 754 [such pro forma statements have “no redeeming value and should be ignored”].)

FN8. Because plaintiff failed to establish that misconduct occurred, we need not address the parties' arguments with respect to prejudice..  FN8. Because plaintiff failed to establish that misconduct occurred, we need not address the parties' arguments with respect to prejudice.

FN9. Contrary to defendant's assertion, it does not appear that plaintiff asserts either attorney or judicial misconduct to show error in denying his motion for a new trial.   Although both attorney and judicial misconduct may be grounds for a new trial pursuant section 657, subdivision (1), a party is not required to move for a new trial prior to raising attorney misconduct as an issue on appeal.  (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795 (Cassim ) [appellant preserves issue of attorney misconduct for appeal by making timely objection and by moving for mistrial or requesting jury admonition];  see also Estate of Barber (1957) 49 Cal.2d 112, 119 [generally, motion for a new trial not necessary to preserve an issue for appeal].)   Of course, plaintiff would be precluded on appeal from raising either attorney or judicial misconduct in relation to his motion for a new trial, as he did not assert either in the trial court as a ground for a new trial..  FN9. Contrary to defendant's assertion, it does not appear that plaintiff asserts either attorney or judicial misconduct to show error in denying his motion for a new trial.   Although both attorney and judicial misconduct may be grounds for a new trial pursuant section 657, subdivision (1), a party is not required to move for a new trial prior to raising attorney misconduct as an issue on appeal.  (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795 (Cassim ) [appellant preserves issue of attorney misconduct for appeal by making timely objection and by moving for mistrial or requesting jury admonition];  see also Estate of Barber (1957) 49 Cal.2d 112, 119 [generally, motion for a new trial not necessary to preserve an issue for appeal].)   Of course, plaintiff would be precluded on appeal from raising either attorney or judicial misconduct in relation to his motion for a new trial, as he did not assert either in the trial court as a ground for a new trial.

FN10. See footnote 9, ante..  FN10. See footnote 9, ante.

ARMSTRONG, Acting P. J. KRIEGLER, J.

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