LINHART v. NELSON (1976)

Following a jury verdict and judgment of $400,000 in plaintiff's favor, defendants moved for a new trial on the grounds of juror misconduct and excessive damages. The motion was denied. Defendants appealed from both the judgment and the order denying the new trial motion.

Defendant Leland Nelson (hereinafter ‘Leland’) is the father of defendant Scott Nelson (hereinafter ‘Scott’). With Scott's help, Leland assembled a Volkswagen dune buggy from a kit. The dune buggy was to be devoted principally to off-road use; therefore some modifications were made, including the installation of traction brakes and a roll bar.

On July 3, 1973, Scott was driving the dune buggy and plaintiff was a passenger. While proceeding north on Sierra College Boulevard in Rocklin, Scott made a sudden, unexpected left turn to go into a service station on the west side of the two-lane road. As he did so, the vehicle overturned. Plaintiff could not extricate himself from the dune buggy because of his seat belt and the fact that both hands were pinned under the roll bar. While he was thus trapped in the wreckage, he could see fire engulfing his legs and moving toward his chest. Then Scott, who had extricated himself, lifted the dune buggy and freed plaintiff.

Plaintiff was initially taken to Roseville Community Hospital, in great pain. His right shoulder was dislocated. He was moved to Sacramento Medical Center for 20 days, then to the burn unit at St. Francis Memorial Hospital in San Francisco. Plaintiff sustained burns over about 30 percent of his body. Medical bills amounted to approximately $20,000.

The jury verdict was against both defendants. In answer to a special interrogatory, the jury found that Leland was not himself negligent, independent of his ownership of the vehicle. (See Veh.Code, § 17151.) Judgment was entered accordingly.

Defendants moved for a new trial, principally on the grounds of excessive damages and juror misconduct during deliberations. In support of their motion, they submitted a declaration¹ of Richard Sichelstiel, a licensed investigator, who had interviewed certain members of the jury. Sichelstiel attached declarations which he had prepared for five of the jurors to sign, only one of which was actually signed. Plaintiff successfully moved to strike Sichelstiel's declaration and the unsigned declarations as hearsay; and the trial court issued an order stating that it would not hear testimony from jurors who had been subpoenaed by defendants to testify at the hearing on the motion.

After hearing argument, the court denied the motion for new trial. It concluded that although the word ‘insurance’ had been improperly mentioned by plaintiff's counsel during argument, it was not prejudicial error. The court also commented that the jury's finding of Scott's negligence was sound. Lastly, the court's minute order stated:

‘The matter of the amount of the verdict involves two objections: 1. that the jury improperly considered attorneys fees in fixing the amount of damages; 2. that the amount of the verdict was excessive.

‘As to taking the testimony of the jurors at the time of the Motion for a New Trial, the Court did not deem this necessary or desirable, and it would constitute a dangerous precedent, especially as here presented.

‘As to the amount of the verdict, this Court may not have rendered judgment in the amount this jury awarded, however, this Court considers that it has nothing further to go on than its individual opinion, the same as each of the several jurors had.’ (Emphasis added.)

During the pendency of the above appeal, a motion by defendants to take depositions of the jurors for appellate purposes was also denied. Defendants filed a separate appeal from the order of denial. The two appeals were eventually consolidated by us.

I

Defendants contend that the court committed prejudicial error in permitting witnesses Martin and Thomas to give expert testimony on the cause of the accident. They urge, in particular, that the two should not have been allowed to testify as to whether Scott's speed at the time of the accident was a safe cornering speed.

Officer Martin is a member of the Rocklin Police Department. It was he who investigated the scene of the accident. The court limited his testimony generally to a discussion regarding what he observed at the accident site and to facts relating to construction of dune buggies. However, he was then asked his opinion as to whether a speed of 20 miles per hour was excessive for the type of turn Scott made in his dune buggy; his answer, over defense counsel's objection, was affirmative. This was error. He was not shown to be qualified to give his opinion. (Evid.Code, § 720.)

Mr. Thomas is a mechanic and works for Go Volkswagen. He testified that he owns a dune buggy, that he has built nine such dune buggies, that he went to a ‘[Volkswagen] School,’ and that he worked for a Volkswagen sales agency from 1969 until the middle of 1974. Overruling defense counsel's objections, the court permitted Thomas to testify concerning the construction of a dune buggy, and also permitted him to give an opinion in answer to a hypothetical question concerning the safety of making a left turn under conditions similar to those involved in this case. Thomas said that such a turn taken at 25 to 28 miles per hour would be ‘dangerous.’ In contrast to witness Martin, Thomas was qualified to give this opinion.

For defendants to prevail, they must demonstrate not only that error was committed, but also that it appears reasonably probable from an examination of the entire record that a result more favorable to them would have been reached in the absence of this testimony. (See Smith v. Lewis (1975) 13 Cal.2d 349, 365, 118 Cal.Rptr. 621, 530 P.2d 589; Mize v. Atchison, T. & S. F. Ry. (1975) 46 Cal.App.3d 436, 455, 120 Cal.Rptr. 787.)

Plaintiff testified that Scott had a habit of doing the unexpected to people and that the left turn which Scott made at the moment of the accident took him totally by surprise. Scott himself testified that the only reason he made that sudden left turn was to get a reaction out of plaintiff. He also stated that his speed at the time of the turn was 25 to 28 miles per hour. It is not reasonably probable, considering the undisputed facts, that a result more favorable to defendants would have been reached (Code Civ.Proc., § 475). The error regarding Officer Martin's testimony was thus not prejudicial.

II

Defendants contend that the verdict of $400,000 was excessive as a matter of law.

A reviewing court must uphold an award of damages whenever possible, and all presumptions are in favor of the judgment. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61, 118 Cal.Rptr. 184, 529 P.2d 608.) The appellate question is whether or not the amount of the verdict is so out of line with reason that it shocks the conscience and necessarily implies that the verdict was the result of passion and prejudice on the part of the jurors. (Bertero v. National General Corp., supra, 13 Cal.3d at p. 65, fn. 12, 118 Cal.Rptr. 184, 529 P.2d 608; Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 507–508, 15 Cal.Rptr. 161, 364 P.2d 337.)

Plaintiff, 20 years of age at the time of trial, suffered third degree burns over 21 percent of his body, and second degree burns over another 9 percent. The dead skin had to be removed from these areas by a painful process known as debriding. Plaintiff underwent two extremely painful skin grafting operations. In spite of the skin grafts, plaintiff remains disfigured permanently over a large part of his body. He is extremely conscious of the appearance of these burns and understandably engages in no activities in which the scarred parts of his body will be exposed. His social life has been noticeably affected.

His right foot has been painful since the accident due to demineralization of the bones, and his left foot is numb. There is some paresthesia in both legs. It is still painful for him to sit for any period of time or to stand or walk. He has had surgery on his right shoulder and the motion in that shoulder is restricted.

Plaintiff's education was set back at least six months, and his future earning capacity has been substantially affected because he cannot remain on his feet for any appreciable length of time.

Since his medical bills amounted to about $20,000 there is no doubt that a substantial portion of the remaining award of $380,000 was for pain and suffering. Mental suffering frequently constitutes the principal element of tort damages and can be composed of fright, nervousness, grief, anxiety, worry, mortification, humiliation, embarrassment, terror or ordeal. (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892–893, 103 Cal.Rptr. 856, 500 P.2d 880.) Admittedly, these terms refer to subjective states, representing a detriment which can be translated into monetary loss only with great difficulty; but the detriment is a genuine one and requires compensation. The issue generally must be resolved by the impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence. (Ibid.)

Adhering to the historically honored standard of reversing as excessive only those judgments which the entire record (when viewed most favorably to the judgment) indicates were rendered as a result of passion and prejudice on the part of the jurors, we do not find the verdict so great in amount as to be excessive as a matter of law and to require reversal.

III

Defendants next argue that the trial judge misconceived his duty at the hearing on the new trial motion with respect to the issue of excessive damages. They claim that he felt bound by the jury's determination and improperly refused to reweigh the evidence. In support of their theory, they offer the portion of the above-quoted language of the court which states, ‘As to the amount of the verdict, this Court may not have rendered judgment in the amount this jury awarded, however, this Court considers that it has nothing further to go on than its individual opinion, the same as each of the several jurors had.’

Defendants' argument is based on the case of Lippold v. Hart (1969) 274 Cal.App.2d 24, 78 Cal.Rptr. 833. In Lippold, the judge held a hearing on a motion for new trial and concluded that the jury's verdict for defendant was unfair. Although stating that an “unjust result had occurred,” the judge denied a motion for a new trial because ‘the jury heard the story. So I've got to abide by it because it was a unanimous verdict.’ (Id. at p. 25, 78 Cal.Rptr. at p. 834.) The reviewing court rightly concluded that the judge erred, because his comments indicated that although he had made an independent evaluation of the evidence, he failed to base his decision upon that evaluation as required by Code of Civil Procedure section 657.²

There is no such patent misconception of judicial duties here, although the court's language was hardly a model of clarity. We truly do not know what the court's enigmatic language connotes, but we cannot conclude from it that the court did not apply the proper standard. In any event, since we will reverse the new trial ruling for other reasons, the trial court will have an opportunity to apply the proper standard if it determines for itself that it did not originally do so.

IV

Defendants contend that they should have been granted a new trial because of jury misconduct, urging that the jury improperly considered attorney's fees and insurance in arriving at its $400,000 award. To understand this contention, we must review the pertinent facts in detail.

After the trial concluded, Richard Sichelstiel, defendant's investigator, contacted eight jurors and questioned them concerning jury deliberations. Jury Foreman Fred Beentjes told Sichelstiel that during deliberations the jury considered attorneys' fees as well as medical expenses and pain and suffering in arriving at its ultimate award. Beentjes indicated that he suggested a ‘package deal’ be awarded to plaintiff which would include all of the aforementioned considerations. He said he was personally in favor of awarding plaintiff $200,000 and an additional $100,000 for his attorney, making a total verdict of $300,000.

Juror Billie Anderson indicated that during the jury's deliberations, consideration was given by the jurors to the fact that plaintiff's attorney would receive one-third of the total award. Juror Maxine Colburn told Sichelstiel that after listening to jurors' discussion that plaintiff's attorney would receive a portion of the final award, she decided to increase her award in order to compensate therefor. Other jurors with whom Sichelstiel spoke made additional observations relating to references to attorney fees and insurance during jury deliberations.

Based upon what the jurors told him, Sichelstiel prepared separate affidavits for each of five jurors who had indicated a willingness to execute them.³ When he subsequently presented them for signature, he learned from them that plaintiff's attorney had telephoned in the interim and ‘cautioned’ them regarding the signing of anything. Fred Beentjes signed but the other four refused. Of these four, three gave indication that their refusal was influenced by the call they had received from plaintiff's attorney.

Defendants then submitted the following in support of the motion for a new trial:

(1) The signed affidavit of Sichelstiel in which he summarized what the jurors had told him.

(2) The signed affidavit of juror Beentjes.

(3) The four unsigned juror affidavits.

(4) Attached to each unsigned affidavit, a further signed affidavit of Sichelstiel concerning the refusal of such juror to sign.

Plaintiff moved to strike all the affidavits; on the ground of hearsay, the trial judge granted the motion, except as to the Beentjes affidavit. Four days later, for reasons unexplained by the record, the court issued a minute order to the effect that ‘No testimony of jurors will be considered on Motion for New Trial.’ Subsequently defendants' attorney filed a ‘Declaration in support of allowing jurors to testify at hearing on motion for new trial.’ Urging the court to reconsider its order refusing to hear such testimony, he declared that he had subpoenaed three jurors to appear at the time of hearing of the motion, and that if allowed to testify, they would indicate that in their vote for the $400,000 verdict, one-third of that amount was for attorney's fees. Although the three subpoenaed jurors were in fact present on the day of the hearing on the motion for new trial, the court declined to hear their testimony. Thereafter the court denied the motion.

Reversal is demanded only when it clearly appears that the court abused its discretion in the process of ruling on a motion for new trial. (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387, 93 Cal.Rptr. 769, 482 P.2d 681; Rogers v. County of Los Angeles (1974) 39 Cal.App.3d 857, 863, 114 Cal.Rptr. 540.)

Attorney fees over and above compensatory damages may not be properly awarded to a successful plaintiff in a tort action. (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 882, p. 3168.) Evidence of liability insurance is inadmissible in a negligence action. (Evid.Code, § 1155; Scally v. Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806, 100 Cal.Rptr. 501; Witkin, Cal. Evidence (2d ed. 1966) Circumstantial Evidence, §§ 374–375, pp. 332–334.) It is fundamental that a jury is bound to follow proper instructions of the court; a verdict rendered contrary thereto is against law. (4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 273, p. 3080.) Such a jury verdict may not be sustained on appeal anymore than a court's judgment which is contrary to law.

A jury's verdict in a damage action which includes a sum for plaintiff's attorney fees is thus contrary to law, as is also a verdict based upon a consideration of the existence of liability insurance (evidence of which is not properly before the jury).

‘It is . . . misconduct to discuss and consider the question of attorney's fees, or the fact that plaintiff would have to pay attorney's fees from any recovery he might be allowed, or the fact that defendant was protected against liability by indemnity insurance.’ (Fns. omitted.) (89 C.J.S. Trial § 462, pp. 96–97.) The rule is quite logical and just. Surely if a trial judge alone hearing a cause may not award counsel fees in a tort case, a jury may not do so either. The jury's instructions (in this case as well as in every damage case) specifically define the items of damage for which the plaintiff may be compensated if a verdict is rendered in his favor; such itemization never includes attorney fees, and a jury's award of such a damage item clearly violates both its instructions and its duty to be guided by the evidence alone.

A monetary jury verdict which does not consider the parties on an individual versus individual basis is likewise contrary to law. There is no different rule of damages against a defendant who is indemnified by an insurance carrier for his wrong and a defendant who is uninsured.

When such improprieties occur and are properly brought to the attention of the trial court on motion for new trial (or to our attention as an appellate court), remedial action should be taken.

It does not follow from the above that the mere mention or discussion of insurance or attorney fees during jury deliberations will render the damage verdict invalid. There is an excellent analogy in the area of quotient verdicts, where it has been judically determined that the mere fact that a jury took the independent figures of each of its members and divided their sum by 12 did not result necessarily in a quotient verdict, if the jury separately deliberated and agreed upon the averaged amount. (Bardessono v. Michels (1970) 3 Cal.3d 780, 794, 91 Cal.Rptr. 760, 478 P.2d 480; Dixon v. Pluns (1893) 98 Cal. 384, 33 P. 268; Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 96 Cal.Rptr. 902; 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 300, pp. 3106–3107.) It is essentially a question of whether the error of the jury is or is not prejudicial to the litigant. (4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 291, pp. 3096–3097.) If attorney fees are merely discussed but are not actually included in the award, such error is not prejudicial; but if the damages awarded actually include any sum for attorney fees, the verdict is to that extent contrary to law. Similarly, if the existence of liability insurance is merely spoken of but does not actually influence the jury's final decision, either as to liability or as to the amount of damages, the jury's error is not prejudicial.

Who is to make these subtle determinations? The trial judge should make them on a motion for new trial, where evidence of such misconduct is properly brought to his attention. Where he finds that the award includes attorney fees, it it his duty to either grant a new trial on the issue of damages or to grant it on condition that the plaintiff remit so much of the damage award as in fact is found to represent attorney fees (assuming that this figure can be and is arrived at by the evidence brought to the trial judge's attention). (Cf. Gillespie v. Jones (1874) 47 Cal. 259; Bentley v. Hurlburt (1908) 153 Cal. 796, 803, 96 P. 890.)⁴

And if the trial judge can determine on motion for new trial that in fact the amount of the verdict was influenced by a consideration of liability insurance, contrary to both statutory and decisional law forbidding it, he should either grant a new trial on the issue of damages or in a rare case where the amount by which the verdict was increased because of this factor can be and is ascertained by him, he should make the new trial order appropriately conditional.

A secondary matter is the means by which the foregoing examples of jury misconduct may be brought to the attention of the trial judge. Prior to People v. Hutchinson (1969) 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132, even though such misconduct might have taken place in the jury room, there was rarely an opportunity for the trial judge to even consider it, let alone remedy any injustice caused thereby. The rule which prohibited jurors from impeaching their own verdict made evidence of such misconduct virtually impossible. With the adoption however of Evidence Code section 1150, subdivision (a) and its interpretation by People v. Hutchinson, supra, the evidence of the jurors themselves may be considered, and a litigant who has been judged unfairly by a jury may be provided with a remedy.⁵ There is of course the limitation expressed in the statute to the effect that ‘[n]o evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.’ (Evid.Code, § 1150, subd. (a).) As clarified by the Hutchinson court, this limitation means that ‘[t]he only improper influences that may be proved under section 1150 to impeach a verdict . . . are those open to sight, hearing, and the other senses and thus subject to corroboration.’ (People v. Hutchinson, supra, 71 Cal.2d at p. 350, 78 Cal.Rptr. at p. 201, 455 P.2d at p. 137.)

Applying the foregoing principles to this case, the evidence offered to the trial judge on the motion for new trial would support a finding by the trial judge that the jury objectively reached an agreement on compensatory damages in a specified amount, to which it then added a specific additional amount, to reach the total verdict of $400,000. Such an objective agreement would be ‘open to sight, hearing, and the other senses and thus subject to corroboration,’ and not merely reflective of the jury's reasoning process or of something which influenced a given juror's assent to the verdict. Form such proffered evidence, the trial judge could have also found objectively that had there been no discussion of insurance, the award would have been substantially less than it was.

As above indicated, it was for the trial judge to make these determinations, using the guidelines of People v. Hutchinson, supra, and the cases subsequent thereto (such as Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 95 Cal.Rptr. 516, 485 P.2d 1132; Bardessono v. Michels, supra, and Clemens v. Regents of the University of California (1970) 8 Cal.App.3d 1, 87 Cal.Rptr. 108). He should have done so by providing to the moving party a full and fair hearing on the new trial motion; this he did not do.

We see no fairness in a set of circumstances under which the opponent of the motion uses two strong juror declarations in support of his opposition, having through his counsel frustrated the efforts of the proponent of the motion to support it by use of four such declarations by other jurors. The trial court, after correctly striking the unsigned declarations as hearsay, was left with two juror declarations opposing the motion against a single declaration supporting it. Knowing these circumstances, the court refused to permit the proponent to present live testimony of the four jurors who very possibly (the trial court could certainly so find) would have signed affidavits but for the ‘cautionary’ words of plaintiff's counsel. In this regard the trial court abused its discretion; it did not give a fair hearing to the defendant in his efforts to prove juror misconduct entitling him to relief.

In Bardessono v. Michels, supra, there is language which may be read to suggest that it is error to admit the live testimony of jurors at a motion for new trial, if objected to. On the other hand, the language of the Supreme Court in this regard may also be read as permitting such evidence.⁶ We find no authority which directly prohibits it, and deem that it should be permitted, in the sound discretion of the trial judge.

But even if Bardessono were held to indicate otherwise, the Supreme Court expressly notes an exception in a ‘case in which a necessary witness has refused an affidavit or deposition (Saltzman v. Sunset Tel. etc. Co. (1899) 125 Cal. 501, 503, 58 P. 169).’ (See ante, fn. 6, at p. 60.) Thus the trial judge's arbitrary refusal (as stated in his order) to hear the testimony of the jurors because ‘it would constitute a dangerous precedent’ was a clear abuse of discretion and prejudicial error. So long as such testimony is subject to the discretion of the trial judge, which discretion we normally expect and assume will be properly exercised, not only is it not at all a dangerous precedent, but in the search for truth and justice, as suggested by People v. Hutchinson, supra, it is most appropriate.⁷

V

Defendants urge in the second appeal that it was error for the court to dent their motion to take depositions of jurors pursuant to Code of Civil Procedure section 2017, subdivision (b), for the purpose of developing a supplemental record for the reviewing court. By its very clear terms, section 2017, subdivision (b), does not permit such depositions. The declaration of Sichelstiel, along with the documentation appended to it, was a sufficient ‘offer of proof’ for proper appellate review.

The judgment and the order denying depositions of jurors are affirmed. The order denying the motion for new trial is reversed, with directions to hear and rule upon such motion in accordance with the views expressed herein. Each side will bear its own costs on the appeals.

FOOTNOTES

1.  The words ‘declaration’ and ‘affidavit’ are herein used interchangeably.

2.  Code of Civil Procedure section 657 reads, in pertinent part, as follows:‘A new trial shall not be granted upon the ground . . . of excessive . . . damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.’

3.  Four of these five jurors voted in favor of the verdict, which was 11 to 1.

4.  See Justice Traynor's comments in dissent in (Dorsey v. Barba (1952) 38 Cal.2d 350, 366–367, 240 P.2d 604) in which he conceives of the trial court's function in new trial matters as equitable in nature.

5.  ‘Admission of jurors' affidavits within the limits set by section 1150 protects the stability of verdicts, and allows proof by the best evidence of misconduct on the part of either jurors or third parties that should be exposed, misconduct upon which no verdict should be based. (See Pen.Code, § 1181; Code Civ.Proc., § 657.) . . . Admission of the this best evidence of misconduct or improper influence at a motion for new trial, therefore, would not present a breach in the post verdict privacy of jury deliberations. It would merely insure that evidence of misconduct will be available to the courts, freeing them to determine the substantive questions of whether the particular misconduct is a recognized ground for new trial and whether it has prejudiced the losing party. Admission of jurors' affidavits should also have a further prophylactic effect of stripping from all prejudicial misconduct whatever veil of post verdict secrecy is now reserved for the proper deliberations of the jury. ‘[T]o hear such proof would have a tendency to diminish such practices and to purify the jury room, by rendering such improprieties capable and probable of exposure, and consequently deterring jurors from resorting to them.’ (Wright v. Illinois etc. Tel. Co., supra, 20 Iowa 195, 211.)‘We therefore hold that jurors are competent witnesses to prove objective facts to impeach a verdict under section 1150 of the Evidence Code.’ (People v. Hutchinson (1969) 71 Cal.2d 342, 350–351, 78 Cal.Rptr. 196, 201, 455 P.2d 132, 137.)

6.  The language to which we refer reads as follows:‘Initially we shall explain that in a hearing on a motion for new trial, the use of oral testimony, to which no objection is tendered, does not taint the procedure with a jurisdictional defect. Although we find no authority for the reception of oral testimony at the hearing on a motion for new trial, except in a case in which a necessary witness has refused an affidavit or deposition (Saltzman v. Sunset Tel. etc. Co. (1899) 125 Cal. 501, 503, 58 P. 169), we do not regard the procedure of proof as jurisdictional in nature. (Evid.Code, § 353; see Nichols v. Hast (1965) 62 Cal.2d 598, 601, 43 Cal.Rptr. 641, 400 P.2d 753; Pao Ch'en Lee v. Gregoriou (1958) 50 Cal.2d 502, 505–506, 326 P.2d 135; Webber v. Webber (1948) 33 Cal.2d 153, 164–165, 199 P.2d 934; Boynton v. McKales (1956) 139 Cal.App.2d 777, 782, 294 P.2d 733; Witkin, Cal.Evidence (1966) §§ 1285–1287, at pp. 1188–1191.)‘Defendant raised no objection in the trial court either to the form of plaintiff's proof or the lateness of the form of plaintiff's proof or the lateness of the testimony, which came in after the 10-day period permitted by Code of Civil Procedure section 659a. (Cf. Cembrook v. Sterling Drug Inc. (1964) 231 Cal.App.2d 52, 66–67, 41 Cal.Rptr. 492 (hg.den.).) Under these circumstances, we cannot set aside on appeal the procedure followed by the court in permitting oral testimony on a motion for a new trial.’ (Bardessono v. Michels (1970) 3 Cal.3d 780, 793–794, 91 Cal.Rptr. 760, 769, 478 P.2d 480, 489.)

7.  Subject to the qualification that the normal method of presenting a new trial motion based upon jury misconduct is by affidavits. (Code Civ.Proc., § 658.)

PARAS, Associate Justice.

JANES, Acting P. J., and EVANS, J., concur.