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Court of Appeal, Second District, Division 3, California.

Mable WEATHERS, Fulton L. Weathers, Jr., Demetree Wheatley, Plaintiffs and Respondents, v. KAISER FOUNDATION HOSPITALS, a non-profit corporation (sued as Kaiser Foundation Hospital), Kaiser Foundation Health Plan, Inc., a non-profit corporation (sued as Kaiser Foundation Health Plan), and Southern California Permanente Medical Group, a partnership, Defendants and Appellants.

Civ. 36488.

Decided: January 27, 1971

Thelen, Marrin, Johnson & Bridges, and James M. Radnich and Andrew J. Nocas, Los Angeles, for defendants and appellants. Hirsch & Susman and Alvin Wechsler, Beverly Hills, for plaintiffs and respondents.

Appeal by defendants in a malpractice action from an order granting plaintiffs' motion for new trial on the grounds of irregularities in jury proceedings and misconduct of jury in reaching its nine to three verdict for defendants. The findings of the court set forth in its order granting the new trial were based upon affidavits of the three dissenting jurors and the affidavit of one of plaintiffs' two trial attorneys that neither plaintiffs nor their attorneys had knowledge prior to the rendition of the verdict of bias and prejudice of certain jurors.

Defendants resisted the motion on the grounds that the affidavits consisted entirely of hearsay, ambiguous and irrelevant statements, that plaintiffs did not submit affidavits of the jurors whose conduct was in question, and that neither the plaintiffs nor one of their two trial attorneys filed affidavits stating that they had no knowledge prior to the rendition of the verdict of the averred bias and prejudice of certain jurors. Defendants filed counter-affidavits of six of the majority jurors which denied many of the facts averred in the other affidavits.

Impeachment of Verdict

The rule that affidavits of jurors may not be used to impeach their verdict is subject to four exceptions: first, to show that the jury determined an issue by chance (Code Civ.Proc., § 657, subd. 2); second, to show that the bias or prejudice of a juror was concealed by false answers on voir dire (People v. Castaldia, 51 Cal.2d 569, 572, 335 P.2d 104; People v. Gidney, 10 Cal.2d 138, 146, 73 P.2d 1186); third, to establish the mental incompetency of a juror at the time of trial (Church v. Capital Freight Lines, 141 Cal.App.2d 246, 248, 296 P.2d 563); and fourth, to show that a juror did not intend to follow the court's instructions on the law and had concealed that intention on voir dire. (Noll v. Lee, 221 Cal.App.2d 81, 34 Cal.Rptr. 223.) (See generally, People v. Hutchinson, 71 Cal.2d 342, 348, 78 Cal.Rptr. 196, 455 P.2d 132.) In 1969 a fifth exception was recognized by judicial decision: to show objectively ascertainable overt acts of conduct, conditions or events which improperly influenced the jury. (Evid.Code, § 1150, subd. (a); People v. Hutchinson, supra, 71 Cal.2d 342, 349–351, 78 Cal.Rptr. 196, 455 P.2d 132.) (See also Putensen v. Clay Adams, Inc., 12 Cal.App.3d 1062, 1082–1083, 91 Cal.Rptr. 319; Clemens v. Regents of University of Cal., 8 Cal.App.3d 1, 16–19, 87 Cal.Rptr. 108; People v. Spelio, 6 Cal.App.3d 685, 689–690, 86 Cal.Rptr. 113; City of Pleasant Hill v. First Baptist Church, 1 Cal.App.3d 384, 428–433, 82 Cal.Rptr. 1.)

Concealment of Voir Dire

The affidavits of the three dissenting jurors, referred to by the court in its order granting the motion for new trial, are summarized in pertinent part. The foreman referred to the plaintiff mother as a ‘black woman’ and stated that ‘where he came from, they don't ‘even let a black woman into the courtroom.’' Several members of the jury referred to the defendant hospital as a good hospital and told the jurors of the excellent treatment received thereat by members of their respective families. One juror said ‘we can't find them [defendants] guilty in this case because if we do, we would be attacking it and endangering the whole hospital system.’ Another member stated that ‘if we voted for the plaintiffs in this case the hospital rates at Kaiser Hospital would go up, and we would all have to pay more money for hospital rates.’ One juror commented that she had a ‘close relative’ on the staff of the defendant hospital and had not mentioned it on voir dire ‘because she had forgotten about it at the time.’

We have not been furnished a stenographic report of the voir dire examination of the jurors and therefore are unable to determine whether the jurors who purportedly made the foregoing statements gave untruthful answers to questions. It is incumbent upon an appellant to present a record which affirmatively shows error on its face, and where, as here, the appellant contends that false answers the question can be resolved only by an examination of the stenographic report of the voir dire proceedings. (Dunford v. General Water Heater Corp., 150 Cal.App.2d 260, 264, 309 P.2d 958.) In the absence thereof we must assume that the trial judge who heard the proceedings concluded that untruthful answers had been given, and that they constituted an irregularity in the proceedings of the jury which prevented plaintiffs from having a fair trial. ‘Since all intendments are in favor of the action taken by the lower court, the affidavits in behalf of the prevailing party are deemed not only to establish the facts directly stated therein, but all facts reasonably inferred from those stated.’ (Brickell v. Wittmar, 175 Cal.App.2d 190, 195–196, 345 P.2d 494, 498.)

Defendants argue that notwithstanding the foregoing, plaintiffs failed to file sufficient affidavits to support the order granting the motion for new trial upon the ground of bias and prejudice concealed during the voir dire examination. We agree. As stated in Dunford v. General Water Heater Corp., supra, 150 Cal.App.2d 260, 265, 309 P.2d 958, 961: ‘It is essential, not only that there be affidavits showing that plaintiffs' counsel were ignorant of the facts constituting the claimed misconduct prior to the rendition of the verdict, but also that plaintiffs file an affidavit to the same effect, stating that they had no knowledge prior to the rendition of the verdict. [Citations.]’ (See also Kraus v. Walt Disney Productions, 221 Cal.App.2d 736, 740, 34 Cal.Rptr. 702.) The reason for this rule is to remove any doubt that both the party and his attorney had concealed knowledge of bias or prejudice on the part of jurors prior to the rendition of the verdict, were willing to remain silent, taking a chance on the outcome of the trial, and then raise the issue of bias and prejudice only in the event of an adverse verdict. (Gray v. Robinson, 33 Cal.App.2d 177, 184, 91 P.2d 194.)

Here, plaintiffs failed to meet this requirement. One of their trial attorneys filed an affidavit stating that neither the plaintiffs not their co-counsel nor the affiant had knowledge of bias or prejudice of the jurors prior to the rendition of the verdict. The hearsay portion of this affidavit is not competent evidence and could not be considered in support of the motion for new trial. (Gay v. Torrance, 145 Cal. 144, 152–153, 78 P. 540.) No affidavits were filed by plaintiffs or their other trial counsel. Since plaintiffs failed to provide the trial court with the necessary affidavits, the court could not consider as a ground for new trial any facts indicating bias and prejudice of jurors concealed by false answers on their voir dire examination.

Improper Influences on Jury

The order granting the motion for new trial states in part: ‘Foreman John Carruthers in the jury parking lot told Juror Evelyn L. Billick ‘that he wanted to talk to me; that we've got to get things straightened out. I took it as a joke and indicated that I did not wish to discuss the case with him. He said: ‘No I'm serious. We've got to get this thing straightened out. I want to sit in your car with you and discuss this.’'' This excerpt from Juror Billick's affidavit tends to support the conclusion that some of the jurors discussed the merits of the case outside the jury room. Examination of the affidavit of Juror Billick indicates that the quoted statement was taken out of context. The order omitted the next succeeding sentences of the affidavit: ‘I finally acceded to his request, and when we were seated in my car, he told me that in the business of picking a foreman, we did not do it the right way. We have to do it in the ‘constitutional manner.’ And, ‘I want you to go along with me in picking a foreman.’' We see nothing improper or prejudicial to the parties when Juror Billick's quoted statement is read in context. We therefore confine our discussion to the other items set forth in the trial court's order.

In addition to the facts pertaining to bias and prejudice, heretofore discussed, the affidavits of the three dissenting jurors, referred to by the trial court in its order, set forth the following additional facts:

Juror Nichols stated: ‘Juror No. 4, Mr. Anderson, told the jury he had called his own physician and had discussed viral encephalitis with him, and that his physician had told him that viral encephalitis was fatal; it was an incurable disease, and that the decedent in the case was doomed from the beginning. So, what were we doing here, and why didn't we get this thing over with?’ A similar statement was set forth in the affidavit of Juror Billick.

Juror Nichols also stated: ‘When the jury went out to lunch, members of the jury discussed the case freely.’

Juror Williams stated: ‘On the last afternoon of deliberating, John Carruthers, the foreman, made the statement that he was sorry that Alton Bryant, alternate juror No. 2, was not a regular member of the panel because he said that Alton had told him that Mable Weathers [plaintiff mother] didn't have a leg to stand on. * * *’

Six of the nine majority jurors filed affidavits. Five stated that they did not recall Juror Anderson making any statement about obtaining medical information from an outside source. Four stated that they did not recall any jurors discussing the case until its submission, or at any time outside the jury room. Each stated that references to plaintiffs' race were few. No affidavits were filed by Juror Anderson, his physician or Alternate Juror Bryant.

Prior to People v. Hutchinson, supra, 71 Cal.2d 342, 349–351, 78 Cal.Rptr. 196, 455 P.2d 132, the cases uniformly held that affidavits of jurors setting forth improper influences could not be used to impeach a verdict. (See Sopp v. Smith, 59 Cal.2d 12, 15, 27 Cal.Rptr. 593, 377 P.2d 649; Kollert v. Cundiff, 50 Cal.2d 768, 772, 329 P.2d 897, and Maffeo v. Holmes, 47 Cal.App.2d 292, 294, 117 P.2d 948 [independent investigation by some jurors]; People v. Evans, 39 Cal.2d 242, 250, 246 P.2d 636, and People v. Azoff, 105 Cal. 632, 633–635, 39 P. 59 [evidence received out of court]).

Hutchinson, supra, 71 Cal.2d at p. 351, 78 Cal.Rptr. at p. 201, 455 P.2d at p. 137, expressly overruled Sopp v. Smith, supra, Kollert v. Cundiff, supra, ‘and similar cases' and held ‘that jurors are competent witnesses to prove objective facts to impeach a verdict under section 1150 of the Evidence Code’; that the conduct, conditions or events which are alleged to have influenced the jury improperly must consist of overt acts which are objectively ascertainable, i. e., influences which are open to sight, hearing and other senses and thus subject to corroboration; and that a verdict may not be impeached by affidavits whose effect is to prove the subjective reasoning processes of the juror which can be neither corroborated nor disproved. (71 Cal.2d at pp. 349–350, 78 Cal.Rptr. 196, 455 P.2d 132.) Hutchinson also pointed out that the affidavits must contain ‘admissible evidence.’ (Evid.Code, § 1150.) See People v. Spelio, supra, 6 Cal.App.3d 685, 689–690, 86 Cal.Rptr. 113, where affidavits based upon hearsay statements were held to be insufficient, even though the facts averred might well have been a critical factor in defendant's conviction.

In Hutchinson the Supreme Court held that the affidavit of one juror as to ‘[t]he bailiff's remarks and the tone of their delivery constitute statements and conduct that are ‘likely to have influenced the verdict improperly’' (71 Cal.2d at p. 351, 78 Cal.Rptr. at p. 201, 455 P.2d at p. 137) was admissible.

In Clemens v. Regents of University of Cal., supra, 8 Cal.App.3d 1, 87 Cal.Rptr. 108, following a nine to three verdict for defendant in a malpractice action, affidavits of four jurors and one alternate juror were filed which set forth the following facts: Juror Pruden stated to affiants that he did not volunteer information on voir dire that he was a retired dentist because if he had done so, he would have been challenged; that he had had extensive experience in surgery and knew ‘a lot more about it than you do’; that the plaintiff could not convince him that the defendants did not save his life; that he defined medical terms for the jurors; and that during deliberation, he refused to discuss the merits of the case but spoke of his own knowledge and experience in medicine as it applied to the facts. The appellate court pointed out (at p. 18, 87 Cal.Rptr. at p. 121) that since Pruden had not been asked on voir dire concerning his prior occupations, the trial court could have properly concluded that he did not give untruthful answers on voir dire; that ‘[w]hile the affidavits filed by appellant indicate that by the conclusion of the proceedings Pruden may have acquired a bias against appellant's position in the trial, they do not establish as a matter of law that he possessed it when he was examined as a juror. The trial court was thus free to draw the inference that Pruden had not concealed a bias or prejudice on voir dire.’ The appellate court then noted the change in law as the result of Hutchinson and added at page 19, 87 Cal.Rptr. at page 121: ‘The affidavits of jurors in the case at bench contain evidence considered competent by the rule of People v. Hutchinson and material to a ground for a motion for new trial, * * * The increased scope of consideration to be given juror affidavits as mandated by Hutchinson would require a determination not only of the issue of Pruden's allegedly concealed bias but also of his possible misconduct while serving on the jury. For example, the affidavit of Juror Lietzow declares that Pruden stated that he had made up his mind that appellant was not entitled to anything prior to the time that the case was submitted to the jury. [Citation.] The affidavits also state other facts of possible misconduct. While the facts are by no means conclusive that a new trial should be granted if the evidentiary principle of Hutchinson is applied to the proceedings at bench, they do indicate that the trial court might have reached a different result if Hutchinson had been decided prior to the critical hearing.’


The affidavits filed in the instant case are somewhat similar to those filed in Clemens, supra, and were properly admissible to prove objective facts, i. e., influences which were open to sight, hearing and other senses and thus subject to corroboration. The order granting the motion for new trial summarizes many of the facts set forth in the affidavits. It is not clear therefrom what if and weight was given to items relating to possible bias and prejudice concealed on voir dire and whether or not the order was granted in whole or in part on such ground. We have held that the affidavits were incomplete to impeach the verdict on that basis. Furthermore, it appears from the closing paragraph of the trial court's order, the authorities cited therein, and the court's failure to cite Hutchinson or section 1150 of the Evidence Code, that the trial court might not have considered the affidavits in the light of the evidentiary principle of Hutchinson. We must therefore vacate the order granting the motion for new trial and instruct the trial court to reconsider the motion in accord with Hutchinson and this opinion. In doing so we express no opinion as to whether the motion should be granted or denied. The question of the weight and sufficiency of the affidavits and the credence to be given them is for the trial court. (City of Pleasant Hill v. First Baptist Church, supra, 1 Cal.App.3d 384, 429, 82 Cal.Rptr. 1.)

The order granting the motion for new trial is vacated with instructions to conduct a new hearing upon plaintiff's motion for new trial in accord with this opinion. The trial court shall specify time limits no longer than those provided in section 659a of the Code of Civil Procedure for the filing of additional affidavits and counter-affidavits with respect to the motion. Ruling upon the rehearing shall be made within 60 days of the return of the remittitur to the trial court. Each party to bear his own costs on appeal. (See Clemens v. Regents of University of Cal., supra, 8 Cal.App.3d 1, 20–22, 87 Cal.Rptr. 108.)

I dissent:

In my opinion the trial court abused its discretion in granting a new trial in this case. The order requiring retrial is based exclusively upon declarations of jurors Nichols, Billick and Williams. These three comprised the minority group voting against a nine to three verdict. There exists no support for the order in any of the other jurors' declarations on file herein. The Nichols, Billick and Williams declarations consist almost entirely, if not exclusively, of self-serving hearsay statements otherwise unsupported by the record. These allegations of misconduct were generally contradicted by declarations of six of those nine favoring the decision. While I question the wisdom of permitting impeachment of a jury verdict by reference solely to declarations of those jurors voting against the verdict, I cannot condone impeachment of a verdict by reference solely to the declarations of the minority group jurors, where such declarations do not contain substantial legally admissible evidence. To do so is repugnant to the right to jury trial in a civil action.

The thrust of this dissent is pointed up by reference again to the order granting the new trial. The number 1 point made by the trial court, and the one which, if proved by competent evidence, would require the granting of a new trial, is that juror Anderson obtained medical information by telephone from his own physician and communicated the information to the other jurors. However, the information is contained in the declaration of dissident jurors Billick and Nichols. It is basically hearsay. There is no declaration by Anderson or by the physician. In Walter v. Ayvazian, 134 Cal.App. 360, 25 P.2d 526, cited by both parties, the misconduct of obtaining medical evidence out of court was established by the declarations of the involved juror and other jurors and of the physician with whom the juror spoke. Such is not the situation in the case at bar nor is it so in connection with the statements alleged to have been made by certain of the majority jurors.

People v. Hutchinson, 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132, relied upon by the majority, does not compel a conclusion contra to that expressed herein. The declaration therein was made by one of the jurors who had voted in favor of a unanimous verdict of guilt. It contained statements of fact reflecting the declarant's state of mind and conduct resulting from the bailiff's efforts to rush the rendition of the verdict in that case. Hutchinson deals with a method of impeachment and does not discuss the quantum or quality of the proof required to impeach a verdict. It does not deal with the requirement of ‘admissible evidence.’ (Evid.Code, § 1150; People v. Spelio, 6 Cal.App.3d 685, 689–690, 86 Cal.Rptr. 113; see also Clemens v. Regents of University of Cal., 8 Cal.App.3d 1, 18–19, 87 Cal.Rptr. 108.) Had the record in the instant case reflected legally admissible substantially corroborative evidence for the allegations made by the dissident jurors, we would then be required under the rules of appellate review applicable to uphold the discretionary action of the trial court in granting a new trial. In my opinion further elaboration by the Supreme Court as to the quality of evidence necessary to permit of the impeachment of a jury verdict under Hutchinson would be in order.

On the state of the record in this case I feel there was an abuse of discretion and would reverse the order granting the new trial.

SCHWEITZER, Associate Justice.

FORD, P.J., concurs.

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