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


Civ. 61940.

Decided: August 28, 1981

Greene, O'Reilly, Agnew & Broillet, Timothy J. Wheeler and Bruce Brusavich, Los Angeles, for petitioner. No appearance by respondent. Hast & Sabatasse and Patrick J. Hast, Van Nuys, for real party in interest.

Petitioner, Joe Juarez, seeks a peremptory writ of mandate requiring respondent Superior Court to vacate its order declaring a mistrial and to enter judgment upon special verdicts returned by the jury in petitioner's personal injury action against real party in interest, Square Deal Machine Company, Inc.

Petitioner was injured while operating a lathe supplied by real party to his employer. He claimed that the lathe was negligently manufactured and that his industrial injury was proximately caused by such negligence. The matter was submitted to a jury entirely upon special verdicts as authorized by Code of Civil Procedure section 625. The verdicts were returned by the jury foreman on November 6, 1980, and the jury was thereupon polled with respect to each such answer. The following table shows the questions and answers, and each juror's response as to whether the special verdict was his verdict (with “Y” indicating “yes” and “N” indicating “no”).

The court noted that there were not nine identical jurors agreeing upon all issues necessary to the ascertainment of an award of damages to plaintiff and indicated that as a result no verdict had been reached. Counsel for plaintiff declined to waive any such defect, as did defense counsel. The court, therefore, asked the jury to deliberate further in an attempt to arrive at verdicts in respect of which at least nine identical jurors could agree.

On November 7, 1980, the next day, a further polling of the jury occurred which demonstrated that as of that date there were nine identical jurors concurring in the first seven verdicts but that the jury was unable to agree with respect to the eighth question. After further jury deliberations, on November 10, it was ascertained that as to the eighth verdict, there was no agreement upon any apportionment of the combined negligence. When asked whether they thought further deliberations could result in agreement, the jury unanimously responded in the negative. At that point the court granted a mistrial.

On February 10, 1981, petitioner moved the trial court to reconsider the order declaring a mistrial and to enter judgment based upon the verdicts returned on November 6, 1980. Concurrently, petitioner filed a motion to be relieved of the 10-day time limit stated in Code of Civil Procedure section 1008, subdivision (a), pursuant to Code of Civil Procedure section 473. The basis of the motion for reconsideration was the rendition of the decision on November 12, 1980, of the Fifth District in United Farm Workers of America v. Superior Court, 111 Cal.App.3d 1009, 169 Cal.Rptr. 94, which “opinion was discovered by (petitioner's counsel) on or about January 23, 1981.” On February 26, 1981, the court granted plaintiff's motion, pursuant to Code of Civil Procedure section 473.1 On March 3, 1981, the court denied the motion to enter judgment upon the special verdicts; though the motion to reconsider was denied, the court did consider the effect of United Farm Workers of America and concluded that it was distinguishable.

Thereafter, petitioner petitioned this court for a writ of mandate. Though originally denied by this court, an alternative writ was issued by order of the California Supreme Court after a petition for hearing was granted.


Petitioner contends that: (1) the special verdicts returned November 6, 1980, were effective verdicts determining all fact issues necessary to the rendition of a judgment for damages in favor of petitioner and the court erred in failing to render such judgment.

Real party contends that: (1) the special verdicts were not effective because no nine jurors concurred in all verdicts necessary to the ascertainment of a damage award, (2) petitioner waived any right to have judgment entered upon the verdicts by failing to request entry of such judgment, and (3) the trial court's power to revoke the order granting the mistrial expired 10 days after it was granted, that is, on November 20, 1980.


The court properly declared a mistrial. Nine identical members of the jury must agree upon all factual elements necessary to the rendition of a judgment. The special verdicts manifested no such agreement. It is, therefore, unnecessary to consider real party's other contentions.

Agreement of Nine Identical Jurors Required

Until the recent decision of the Fifth District in United Farm Workers of America v. Superior Court, supra, 111 Cal.App.3d 1009, 169 Cal.Rptr. 94, the law of California appeared well settled that where special verdicts were employed, at least nine identical jurors were required to agree to each answer comprising an element essential to a specific damage award. BAJ1 No. 15.51 reflected this rule in its third paragraph which stated:

“As soon as 9 or more identical jurors have agreed upon each answer required by such directions on the special verdict form, so that each of those 9 or more may be able to state truthfully that every answer is his or hers, you shall have such verdict signed and dated by your foreman and you shall return with it to this room.” (Italics added.)

The application of this requirement to special verdicts in comparative negligence cases was recognized by the First District in Borns v. Butts (1979) 98 Cal.App.3d 208, 159 Cal.Rptr. 400. In that case, four special verdicts were returned, finding (1) defendant negligent with proximate causation, (2) plaintiff negligent with proximate causation, (3) plaintiff damaged in the sum of $20,019, and (4) allocating the negligence 90% to defendant and 10% to plaintiff.

“When the jury was polled, it was discovered that only seven of the jurors had voted for all four verdicts. Appellant thereupon moved for a mistrial, but after hearing argument, the court declined to declare a mistrial or to have the jury return for further deliberations. By entering a verdict when the same nine jurors had not agreed on each special verdict, the court erred. (Earl v. Times-Mirror Co. (1921) 185 Cal. 165, 182-186 (196 P. 57); Schoenbach v. Key System Transit Lines (1959) 168 Cal.App.2d 302, 305 (335 P.2d 725); Nelson v. Superior Court (1938) 26 Cal.App.2d 119, 120-122 (78 P.2d 1037).)” (98 Cal.App.3d at p. 210, 159 Cal.Rptr. 400.)

In holding that the error was not harmless, the court specifically noted the irreconcilable inconsistency between the votes of juror No. 7, who found plaintiff not negligent, but also voted on another verdict “to allocate 10 percent of the negligence to respondent.” (Id., at p. 210, 159 Cal.Rptr. 400.) The authorities cited in Borns fully support its holding.

Earl v. Times-Mirror Co. (1921) 185 Cal. 165, 196 P. 57, is the only Supreme Court case on the subject.2 In that case, one involving both compensatory and punitive damages for defamation against multiple defendants, “the jury returned two separate verdicts the first, a verdict for compensatory damages of twenty-five thousand dollars against all the defendants; second, a verdict of five thousand dollars punitive damages against the defendant corporation alone.” (Id., at p. 182, 196 P. 57.) When polled, it appeared “that nine of the jurors were in favor of the twenty-five thousand dollars compensatory damages and ten jurors in favor of the five thousand dollars punitive damages, but three of the jurors who voted for five thousand dollars punitive damages did not concur in the verdict for twenty-five thousand dollars compensatory damages, and two of the jurors who did not concur in the five thousand dollars punitive damages were in favor of the twenty-five thousand dollars compensatory damages.” (Ibid.) Thus, “(o)nly seven of the individual jurors, when polled, stated that they concurred in both verdicts.” (Ibid.) The trial court rejected the corporate defendant's objection and entered judgment for $30,000 against it. The Supreme Court directed the trial court “to reduce the judgment to twenty-five thousand dollars against all the defendants” and affirmed the judgment as so modified. (Id., at p. 197, 196 P. 57.)

In reaching this result, our Supreme Court noted: “It is true, as counsel stated to the trial court, in one sense, that the verdict is an entirety. That is to say, the net result of any verdict is the imposition of a judgment against the defendant for a certain amount fixed in the verdict.” (Id., at p. 184, 196 P. 57.) Thus, both the twenty-five thousand dollar compensatory award and the five thousand dollar punitive award were essential components of the thirty thousand dollar judgment against the corporation. On this basis, the court concluded: “that the verdict for punitive damages failed because, so for as the record shows, some of those who voted for the five thousand dollar verdict as punitive damages might not have been willing to vote for a general verdict for as much as or more than twenty-five thousand dollars.” (Id., at p. 185, 196 P. 57.)

The holding of Earl is thus clear. Nine identical jurors must concur in verdicts establishing all of the elements essential to the ultimate monetary award in favor of a given plaintiff, against a given defendant. In the context of a comparative negligence case, this necessarily requires that the same nine jurors concur in the existence or nonexistence of defendant's negligence and its proximate causation, the existence or nonexistence of plaintiff's negligence and its proximate causation, the total damages suffered by plaintiff, and the percentage of negligence attributable to each.

United Farm Workers of America v. Superior Court, supra, 111 Cal.App.3d 1009, 169 Cal.Rptr. 94, disagreed with Borns. In a simple two-party comparative negligence case, the jury unanimously found plaintiff's damages to be $70,000, and 11 jurors agreed to an allocation of fault of 90% to plaintiff and 10% to defendant. Three of the jurors concurring in the allocation, however, found plaintiff either not negligent or that plaintiff's negligence was not a proximate cause and two other jurors, who concurred in the allocation of 10% fault to defendant, found that defendant was not negligent. Disregarding the inconsistencies between the votes of the above described jurors, there were 11 jurors who agreed upon the total damage to plaintiff and the apportionment thereof. The trial court granted a mistrial and the defendant sought a writ requiring entry of judgment upon the verdict.

In disagreeing with Borns, and granting the writ, the court noted that special verdicts were not mandatory in comparative negligence cases, that in the case of bifurcated trials of the issues of liability and damages the jurors who find against liability are not excluded from participation in the second phase and that jurors not concurring in the findings of fault should not be excluded from participation in the determination of damages and apportionment. Basically, however, the court relied upon decisions in other jurisdictions which have purportedly relaxed the requirement that the identical jurors agree upon verdicts comprising the essential elements of the award. Cited and discussed are: Naumburg v. Wagner (1970) 81 N.M. 242, 465 P.2d 521, 524; Tillman v. Thomas (1978) 99 Idaho 569, 585 P.2d 1280, 1283; and Forde v. Ames (1978) 93 Misc.2d 723, 401 N.Y.S.2d 965, 966-967.

Naumburg interpreted a New Mexico statute comparable to our Code of Civil Procedure section 618 as requiring that “a verdict must be received by the court when at least ten jurors, not necessarily the same ten, agree to each material finding supporting that verdict provided, however, that none of the jurors, upon whose votes the verdict depends, is guilty of irreconcilable inconsistencies or material contradictions when his votes on all issues are considered.” (465 P.2d at p. 522.) (Emphasis added.) Naumburg acknowledged that the rule in California was to the contrary, citing Earl v. Times-Mirror, Co., supra, 185 Cal. 165, 196 P. 57. Finding no persuasive statement of reasons, the court declined to follow Earl (a course not open to this court; Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937) and, in the interest of avoiding “waste of judicial time,” (Naumburg, supra, 465 P.2d at p. 524) eliminated the requirement.

The Naumburg court then proceeded to consider the question whether the vote of a juror, which was crucial to upholding the verdict determining the amount of plaintiff's damage, was inconsistent with his vote on another verdict finding plaintiff guilty of contributory negligence. Concluding that the amount of plaintiff's damage was wholly independent of the issue of contributory negligence, the court found no inconsistency.

Tillman applied the rule announced in Naumburg. A principal issue was whether a juror's failure to vote on a special verdict as to an employee-defendant's negligence was inconsistent with her joinder in a special verdict exonerating the employer. Finding no inconsistency, the court considered the question whether the two verdicts required concurrence of the same nine jurors. Like the Naumburg court, it recognized that the rule in California, as established by Earl, required identical jurors constitute the required majority. The reasons adopted in Naumburg were found persuasive of a contrary result. It is clear, however, that the court did not discard the requirement that to be counted, as a majority juror in respect of any special verdict, the juror must not have been guilty of irreconcilable inconsistency or material contradiction in his votes on other verdicts.

Forde involved separate verdicts on the issue of liability and the amount of damage suffered by plaintiff. Though the jury had the required 5 to 1 vote on each issue, there were two different jurors dissenting. Obviously, no question of irreconcilable inconsistency or contradiction was involved in this situation. The court found the reasoning of Naumburg persuasive and applied its rule.

The court's reliance in United Farm Workers of America upon Naumburg seems questionable. The rule stated in Naumburg disqualified any juror who was “guilty of irreconcilable inconsistencies or material contradictions when his votes on all issues are considered.” (465 P.2d at p. 522.) In United Farm Workers of America, there were five jurors whose votes on the allocation of fault were irreconcilable with their votes on other verdicts. Three jurors, who found either that the plaintiff was not negligent or that his negligence was not a proximate cause, voted to allocate 90% of the negligence to plaintiff. Two other jurors, who voted that defendant was not negligent, voted to allocate 10% negligence to defendant. The inconsistency between these verdicts is patent. Though defendant, as the proponent of the verdicts, should have been permitted to waive the votes more favorable to him on the issues of negligence and probable cause,3 certainly plaintiff, as the opponent, was entitled to invalidate the votes (allocating 90 percent of the fault to him) of the three jurors who irreconcilably found him not negligent or no proximate causation. As will be demonstrated, infra, the same situation exists in the case at bench.

The special verdicts in a comparative negligence case each determine an essential element of the ultimate award but only operate in combination to determine such award. No such award can be deemed concurred in by nine jurors unless nine jurors concur in all the elements necessary thereto. If the answers to the special verdicts would result in a judgment in favor of plaintiff for a certain sum, there must be nine jurors who have concurred in that result, the same as would be required if a general verdict in that sum were to be rendered. Necessarily, the same nine jurors must have agreed as to the amount of damages and the allocation of fault. Moreover, the vote of a juror on the verdict allocating fault to be effective must not be fatally inconsistent with his vote on any other verdict.

The Required Juror Agreement Was Lacking

An examination of the table of jury voting in the case at bench demonstrates that the required nine jurors have not agreed to the factual elements necessary to a specific damage award to plaintiff. Only nine jurors concurred in the special verdict apportioning the combined negligence. One of these nine did not join in the verdict determining plaintiff's damages at $47,865. That same juror also found against defendant's negligence and proximate causation. Yet another of the nine jurors joining in the apportionment found against plaintiff's negligence and proximate causation. It is patent that juror No. 7 who did not concur in fixing the damage at $47,865 has not concurred in an award of any percentage of that figure to plaintiff. The loss of this juror's vote alone reduces the number of jurors agreeing to the amount to be awarded plaintiff below the required nine. This same juror is further disqualified by the fact that he found against defendant's negligence and proximate causation. It is inconceivable that a defendant who was not negligent, or whose negligence was not a proximate cause, could have apportioned to him 45% of the combined total negligence over his objection. The same is true of juror No. 1 who found plaintiff not negligent and no proximate causation but voted for an apportionment of 25% of the total negligence to plaintiff. Though this irreconcilable vote in favor of plaintiff on the negligence issue could have been waived by plaintiff as a proponent of the verdict, he declined to do so and, in any event, the disqualification of juror No. 7 invalidates the verdict. Thus, there were no more than eight jurors who concurred both in the amount of damages and in the apportionment of fault that did not vote inconsistently in favor of defendant on other verdicts. It is, therefore, clear that the court could not have entered a judgment upon the special verdicts and that the mistrial was properly granted.

The peremptory writ of mandate is denied.


1.  The superior court file has been made a part of the record on appeal pursuant to California Rules of Court, rule 12(a).

2.  In Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 521-522, 143 Cal.Rptr. 247, 573 P.2d 465, our Supreme Court held that any defect in the verdicts was waived by failure to object and added: “Therefore, this court need not reach the question of whether or not the same nine jurors must agree on each part of a special verdict.” (Id., at p. 522, 143 Cal.Rptr. 247, 573 P.2d 465.)

3.  The application of waiver to such a situation is affirmed by our Supreme Court in Henrioulle v. Marin Ventures, Inc., supra, 20 Cal.3d at page 521, 143 Cal.Rptr. 247, 573 P.2d 465.

POTTER, Acting Presiding Justice.

COBEY and LUI, JJ., concur.