May 7, 2009
THERESA KEENER ET AL., PLAINTIFFS AND RESPONDENTS,
JELD-WEN, INC., ET AL., DEFENDANTS AND APPELLANTS.
Ct.App. 4/1 D049471 San Diego County Super. Ct. No. DIN031341 Judge: John S. Einhorn.
The opinion of the court was delivered by: George, C. J.
We granted review to address issues concerning a trial court's polling of a civil jury pursuant to Code of Civil Procedure section 618 (hereafter section 618) after rendering a verdict. This statute provides that if "more than one-fourth of the jurors disagree" with a verdict upon polling, "the jury must be sent out again" for further deliberation, "but if no disagreement is expressed, the verdict is complete and the jury discharged from the case." (Italics added.) We conclude that a juror's silence at polling, brought about by the trial court's failure to poll that particular juror on one of several special verdict questions, does not constitute an expressed disagreement with the verdict under section 618, and hence does not prevent the trial court from accepting the verdict as complete and discharging the jury. We further conclude that a party's failure to object to incomplete polling before the jury is discharged forfeits any claim of irregularity in polling procedure.
Scott Keener was killed while riding his motorcycle when a truck driven by Hector Solis, an employee of Jeld-Wen, Inc. (collectively, defendants), pulled away from a stop sign directly into Keener's path. Keener's survivors (plaintiffs) commenced this action against defendants.
After deliberating for more than two days, the jury informed the bailiff that it had reached a verdict and then reassembled in the courtroom. When the trial judge inquired whether the jury had arrived at a verdict, the foreperson, Raul Santana, who had signed and dated the multiple-question verdict form, answered in the affirmative. The trial judge explained: "What I'm going to do next is look at the verdict form and see if it's in order. Once I determine it's in order, I will have . . . my clerk . . . read the verdict form after which I'll ask you as a group whether this was your verdict as read. [¶] Because it is a civil case, it requires nine of 12 on each of the questions to have . . . a partial verdict. So what will ultimately happen is I will poll you individually asking you whether [on] a particular question you voted yes or no. And I hope you have with you a cheat sheet so you can refer to it if you need to in telling me how you voted on each of the questions.*fn1 [¶] Assuming that is done correctly, I will then ask my clerk to what is called record the verdict, meaning put a stamp on it. I will then excuse you as a jury, give you a brief admonition, and then you're done. [¶] So give me a moment to review the verdict form."
The clerk then read aloud the three-page verdict form. It was divided into nine questions, some with subparts. The jurors' responses - as reflected on the verdict form - revealed, in questions 1 and 2, that the jury found Hector Solis was negligent, and that his negligence was a substantial factor in causing Keener's death. In questions 3 through 6, the jurors assessed the plaintiffs' damages. Question 7 asked, "Was Scott Keener negligent?"*fn2 Question 8 asked, "Was Scott Keener's negligence a substantial factor in causing his death?" Question 9 asked, "What percentage of responsibility do you assign to: [¶] Hector Solis ___% [¶] Scott Keener ___% . . . ." The verdict form further revealed that the jury had found both parties were negligent, the negligence of each was a substantial factor in causing Keener's death, and the plaintiffs suffered economic and noneconomic damages totaling $4,940,000. Finally, the jury found that defendant Solis bore 80 percent of the responsibility for the death, and Keener bore 20 percent of the responsibility for his own death.
The trial judge then addressed the jury: "Ladies and gentlemen, as a group, is this and was this your verdict as read? You can say yes or no depending on how you voted." The reporter's transcript reflects that in response, "the jurors answered collectively." The judge explained that he would individually ask each juror to confirm his or her vote on each of the nine questions and subquestions, and then proceeded to poll each juror in numerical order. During the polling, eight jurors - numbers 1, 2, 3, 5, 8, 9, 11, and 12 - answered all questions consistently with the special verdict form. Four jurors, however, gave answers different in various respects from those set out in the verdict form.
In response to the first special verdict form question, Juror No. 4 responded with a finding that Solis was not negligent. The trial judge confirmed that vote, and then dispensed with immediately polling Juror No. 4 concerning any of the other eight special verdict form questions, instead proceeding to poll the next juror. The vote of Juror No. 6, in response to verdict form question 9, was to apportion 90 percent of responsibility to Solis, and only 10 percent to Keener. Juror No. 7 (Brown) answered all special verdict form questions 1 through 6 consistently with the verdict form, but in response to question seven, stated that he had voted to find Keener was not negligent. At that point the trial judge ended the polling of Brown, and did not ask whether (or if so, how) he voted on special verdict form questions 8 (Keener's negligence as a substantial factor) or 9 (apportionment of responsibility). Juror No. 10 (Foreperson Santana) - like Juror No. 4 - stated, in response to the first verdict form question, that he found Solis was not negligent. The trial judge commented: "And I may come back to [Jurors Nos.] 4 and 10 later but not yet." The trial judge continued to poll the remaining jurors.
Thereafter, immediately following completion of the polling of Juror No. 12, the trial judge inquired: "Mr. Foreperson, for those that voted no as to [verdict form question] No. 1 [(negligence of Solis)], did the two who voted no participate in any of the damage calculations?" Upon confirmation that the two jurors did so, the trial judge returned to Juror No. 4 and polled concerning that juror's votes on special verdict form questions 3 through 9. Juror No. 4 stated that with respect to apportionment of responsibility (question 9), the juror's vote was "Mr. Solis, 40 percent. Mr. Keener, 60 [percent]." Finally, the trial judge returned to Jury Foreperson Santana (Juror No. 10) and polled concerning his votes on special verdict form questions 3 through 9. With respect to apportionment of responsibility (question 9), Foreperson Santana stated his vote as "50 percent for both."
Apparently, no one noticed that throughout this process, although the polling revealed a clear three-quarters majority for special verdict form questions 1 through 8, the polling revealed only eight votes for the verdict form's stated "80-20" apportionment of responsibility between Solis and Keener. On that allocation issue, two jurors - Jurors Nos. 4 and 10 (Foreperson Santana) - voted respectively to apportion responsibility between Solis and Keener at 40-60 percent and 50-50 percent. One juror - Juror No. 7 (Brown) - never was asked to state a vote on apportionment and hence, in essence, this juror was silent as to that polling question. One other panelist - Juror No. 6 - confirmed in the polling a vote to apportion fault 90 percent to Solis and 10 percent to Keener.
Immediately after repolling Jury Foreperson Santana (Juror No. 10), the trial judge asked the clerk to record the verdict and, at length, thanked the jurors and then discharged them. After resolving a few remaining housekeeping matters with counsel, the trial judge asked counsel whether there was "anything further." Attorneys for each side replied there was not.
A few days later, the trial judge learned (the record does not reflect how) that he had failed to poll Juror Brown on both the issues of negligence and apportionment.*fn3 The judge convened a hearing and informed the parties of the omission. Thereafter, defendants moved to invalidate the apportionment verdict, submitting declarations from Jury Foreperson Santana and Juror No. 2, each of whom declared that during deliberations, Juror No. 7, Brown, had "refused to find any negligence attributable to Mr. Keener" and had "refused to answer the allocation of liability on Question No. 9 of the Special Verdict Form." Neither of these declarants, however, disclosed what had been his or her own apportionment vote at the time the verdict form was signed in the jury room.*fn4 Plaintiffs moved to strike the jury declarations on the ground they implicated Juror Brown's "mental processes" and were therefore inadmissible under Evidence Code section 1150, subdivision (a).*fn5 In the alternative, plaintiffs asked the court to consider the declarations of three other panelists, each of whom stated that when the verdict form was signed, there were at least nine votes to support the 80-20 apportionment verdict.
The trial court ordered the declarations of Jury Foreperson Santana and Juror No. 2 stricken as inadmissible, and declined to consider plaintiffs' proffered declarations. The court denied defendants' motion to invalidate the apportionment verdict, concluding that defendants had "waived any right to object to any irregularity in the polling procedure by failing to timely object before the verdict was entered." The court entered judgment in the amount of $3,952,000 (that is, 80 percent of $4,940,000) in accordance with the written special verdict form.
Defendants moved for a new trial on several bases, including the ground that the apportionment verdict was invalid because the polling was incomplete and there were insufficient polled votes to uphold the written verdict's 80-20 apportionment. Defendants submitted new declarations by Jury Foreperson Santana and Juror No. 2. Although the new declarations, like the originals, were silent as to Santana's apportionment vote in the jury room, both stated that Juror Brown announced to the rest of the jury "that he was 'abstaining' from voting on Question No. 9," and that Brown refused to answer the apportionment question during deliberations. Plaintiffs opposed the motion for new trial and submitted new declarations by four members of the jury (among them, Jurors Brown and Scopinich), all of whom stated, in essence, that by the end of the deliberations there were at least nine jurors - including Jury Foreperson Santana - who had voted in the jury room for the 80-20 apportionment. In his proffered declaration, Juror Brown further stated: "I voted for a 100%-0% apportionment, with 100% for Mr. Solis and 0% for Mr. Keener." Juror Scopinich declared that "Mr. Brown dissented from [the jury's 80-20 apportionment vote] and remained at 100% for Mr. Solis and 0% for Mr. Keener." Scopinich also declared that when she heard Foreperson Santana state his "50-50" apportionment vote during polling, "[m]y head snapped up," because Santana's statement "was inconsistent with the last vote he had expressed on that issue in the jury room."
The court denied defendants' motion for new trial. In doing so, the court considered the various declarations, but found them admissible only with regard to "[w]hether a particular juror gave a yes or no vote on a particular issue." As to the polling issue, the court found once again that defendants "waived" any error by failing to object prior to the discharge of the jury. The court also concluded, in any event, there was no defect in the verdict, because Jury Foreperson Santana had provided the ninth vote in the jury room.*fn6
Defendants appealed, arguing, among other things, that the special verdict on apportionment, which was based upon the written verdict form, lacked sufficient votes in light of the circumstances that Jury Foreperson Santana may have changed his vote at the time of polling and that Juror Brown failed to state his vote at the time of polling. The Court of Appeal rejected most of defendants' claims but ruled for defendants on the apportionment issue. In that regard, the appellate court reached three principal conclusions. First, the court determined, "the trial court erred [under Evidence Code section 1150] in accepting the juror declarations to inquire into and resolve the results of the jury's decisionmaking process, and also when it made a credibility determination that [Jury Foreperson] Santana could not . . . have voted other than 80-20 at any relevant time." Second, the Court of Appeal found, the verdict was not "complete" under section 618, because the missing polled apportionment vote of Juror No. 7, Brown, constituted "essentially a disagreement" with the apportionment verdict; accordingly, the appellate court concluded, the polling revealed that at least four jurors disagreed with the apportionment aspect of the special verdict, and hence the verdict should not have been accepted and the jury discharged. Third, the Court of Appeal reasoned, defendants' failure to object at trial to the incomplete polling did not constitute "a waiver of an apparent defect" because, the appellate court found, the polling was confusing and defense counsel had "no realistic opportunity" to object to the defective procedure; in any event, the appellate court suggested, defendants' claim of a verdict supported by less than nine votes is too "severe" a defect to be subject to waiver. Accordingly, the appellate court reversed the judgment in part, "with directions to the trial court to conduct such further proceedings as will implement the existing special verdict as to its first eight questions and answers, while allowing appropriate additional proceedings on the issue of apportionment of liability only."
Plaintiffs' petition for review raised only two issues, the second and third described immediately above, and thus we address those issues only.*fn7
Specifically - and, as explained below, significantly - the appellate court's determination that all of the juror declarations (whether submitted by defendant or by plaintiffs) were inadmissible under Evidence Code section 1150 on the polling/apportionment issue is not before us in this proceeding.
California Constitution, article I, section 16 provides: "Trial by jury is an inviolate right . . . , but in a civil cause three-fourths of the jury may render a verdict." When a jury is composed of 12 persons, it is sufficient if any nine jurors arrive at each special verdict, regardless of the jurors' votes on other special verdict questions. (Resch v. Volkswagen of America, Inc. (1984) 36 Cal.3d 676, 679 (Resch) [each juror should participate as to each special verdict submitted]; see also Juarez v. Superior Court (1982) 31 Cal.3d 759, 767-768 (Juarez).)*fn8
The polling process is designed to reveal mistakes in the written verdict, or to show "that one or more jurors acceded to a verdict in the jury room but was unwilling to stand by it in open court." (People v. Thornton (1984) 155 Cal.App.3d 845, 859.) Polling procedure applicable to civil matters is set forth in section 618, which provides: "When the jury, or three-fourths of them, have agreed upon a verdict, they must be conducted into court and the verdict rendered by their foreperson. The verdict must be in writing, signed by the foreperson, and must be read to the jury by the clerk, and the inquiry made whether it is their verdict. Either party may require the jury to be polled, which is done by the court or clerk, asking each juror if it is the juror's verdict. If upon inquiry or polling, more than one-fourth of the jurors disagree thereto, the jury must be sent out again, but if no disagreement is expressed, the verdict is complete and the jury discharged from the case." (Italics added.)*fn9 Sections 1163 and 1164 of the Penal Code similarly address jury polling in the criminal context.*fn10
It is established that a juror may change his or her vote at the time of polling. (Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 266 [trial court erred by failing to credit a juror's changed vote at polling and to send the jury back for further deliberations].) Any juror is permitted to "declare, even at the last moment, that the verdict, as presented, is not his [or her] verdict," as long as the juror does not change his or her vote "merely because he [or she] mistook the legal effect of his verdict." (Fitzpatrick v. Himmelmann (1874) 48 Cal. 588, 590.)*fn11
Under these authorities, Jury Foreperson Santana was entitled to change his vote up until the time the verdict was recorded, and to have that revised vote counted. The record does not reflect whether Jury Foreperson Santana or any other juror changed his or her vote at the time of polling. But what is evident is that neither the trial judge nor the parties noticed, until well after the jury was discharged, that Juror Brown, when polled, was not asked the final special verdict question concerning apportionment.
We address first the assertion of defendants that the trial court erred under section 618 by accepting the verdict as complete and thereafter discharging the jury. That statute (quoted ante, on page 11), provides, in essence, that upon polling, a civil verdict must be upheld unless "more than one-fourth of the jurors disagree thereto"; it states that absent such "disagreement . . . expressed, the verdict is complete." (Italics added.) As plaintiffs observe, section 618 effectively creates a "rebuttable presumption: If a verdict appears complete, it is complete unless there is an affirmative showing [during polling] to the contrary."
Although in the present case, when polled, only three jurors (that is, "not more than one-fourth" of the jurors) "expressed" their "disagreement" with the apportionment verdict, the Court of Appeal below concluded that Juror Brown's "missing vote is essentially a disagreement," and hence "there are more than three jurors who 'disagreed' under section 618." But by remaining silent when the court failed to poll him concerning the apportionment verdict, Juror Brown did not thereby "express" any "disagreement" with the verdict - and hence the polling did not disclose that "more than one-fourth of the jurors disagree[d] with the apportionment verdict." Indeed, if the Legislature had intended that a juror's mere silence at polling, caused by the trial court's failure to poll that particular juror on one of several special verdict questions, would be sufficient to establish "expressed" "disagreement" with a verdict, we expect the Legislature would have written section 618 quite differently, such as by employing language used by legislatures in other jurisdictions in enacting similar statutes, some of which, unlike section 618, effectively equate a juror's silence with disagreement.*fn12
By contrast, California's polling statutes (section 618, governing civil cases, and Penal Code, sections 1163 and 1164, governing criminal cases) - which, as noted, require that a verdict be upheld absent "disagreement . . . expressed" by the polled jurors - are very similar to those of at least 19 other jurisdictions that require affirmative expressions of disagreement at polling in order to preclude completion of a verdict. At least eight states have statutes or rules providing that a jury must be required to resume deliberations if, upon polling, a requisite number of jurors "answer in the negative" or words to that effect;*fn13 and at least 11 other states, like California, provide that a jury must be required to resume deliberations if, upon polling, a requisite number of jurors "disagree" or "express disagreement," or words to that effect.*fn14 We have found no decision interpreting any of these various statutes or rules that has held, as did the Court of Appeal below, that the silence of a juror related to a polling question, after not having not been asked that question, constitutes "disagreement" with the verdict - much less express disagreement.*fn15
We agree with plaintiffs that section 618 requires affirmative disagreement - an utterance, statement, or some similar active conduct - of "more than one fourth" of the jurors in order to prevent a trial court from finding the verdict to be complete and from then discharging the jury. (Cf. Van Cise v. Lencioni (1951) 106 Cal.App.2d 341, 348 [implicitly construing "expressed" in section 618 as meaning "disclosed"]; People v. Wattier (1996) 51 Cal.App.4th 948, 955 [implicitly construing "expressed" in Penal Code section 1164 as meaning "answered"]; People v. Laird (1924) 69 Cal.App. 511, 515 [when the trial court asked the jurors whether the verdict was theirs, there was no response; the appellate court observed that "[n]o disagreement being expressed, the verdict became complete"].) It follows that, as here, a juror's mere silence at polling, brought about by the trial court's failure to poll the juror on one of multiple special verdict questions, does not constitute an expressed disagreement with the verdict under section 618, and hence that this statute provides no basis under the present circumstances for a court to decline to uphold the verdict as set out in the jury's special verdict form.
We briefly address defendants' contrary arguments. First, defendants claim that Juror Brown did indeed affirmatively express his disagreement with the verdict apportioning fault between Hector Solis and Scott Keener. They assert that based upon the polling, "the undisputed evidence established that only eight jurors voted in favor of Special Verdict No. 9." Defendants next argue that the declaration of Juror Brown, stating that he voted for a "100%-0% apportionment - 100% for Mr. Solis and 0% for Mr. Keener," together with corroborating declarations by other jurors, demonstrate that Juror Brown did not vote in the jury room in favor of the 80-20 apportionment verdict. Based upon this information from the declarations (and Brown's in particular), defendants argue, it is "undisputed" and "established" that "Juror Brown did not supply the requisite ninth vote." As plaintiffs observe, however, defendants cannot properly rely upon Brown's, or any other juror's, declaration, because the Court of Appeal concluded that no declaration submitted below in this matter is admissible, in whole or in part; as noted above, the inadmissibility of the declarations is not before us for review, and we treat it as a settled question for purposes of this case. (See ante, p. 10 & fn. 6.) Accordingly, the premise of defendants - that Juror Brown affirmatively expressed his disagreement with the 80-20 apportionment verdict - has not been, and cannot be, established by admissible evidence. The record leaves unresolved whether, at the time of polling or in the jury room, there were eight votes only (or whether there were nine or more votes) for the apportionment verdict.*fn16
Defendants also assert that permitting an eight-vote civil verdict to stand would call into question the constitutionality, as applied, of section 618, and would violate article I, section 16 of the Constitution, which as noted requires a verdict of three-quarters of the jurors (meaning, in this case, nine of 12). Defendants argue that a special verdict based upon only eight votes is unconstitutional and cannot be upheld on appeal.
We observe initially that although we do not know how Juror Brown would have voted had he been polled specifically on the apportionment question, based upon his polled answers indicating that Solis was negligent and that Keener was not, it seems that Juror Brown most likely would have been amenable to assuring that plaintiffs obtain a verdict in their favor reflecting at least the jury's 80-20 apportionment.*fn17 Accordingly, had Juror Brown been questioned, a vote by him to uphold the jury's 80-20 apportionment verdict would have been consistent with his polled answers to the trial court's questions concerning liability for negligence.
In any event, as we observed immediately above, no admissible evidence supports defendants' assertion that nine of the jurors did not agree with the 80-20 apportionment verdict; the record reveals only that eight of the 11 jurors who were polled on that particular question so voted. Once again, defendants' premise - that there were eight votes only, and not nine votes or more in support of the verdict - has not been, and cannot be, established by admissible evidence. (Walling v. Kimball (1941) 17 Cal.2d 364, 373 [" 'an appellate court will never indulge in presumptions to defeat a judgment,' " nor will it " 'presume that an error was committed, or that something was done or omitted to be done which constitutes error' "; instead, " 'every intendment and presumption not contradicted by or inconsistent with the record on appeal must be indulged in favor of the orders and judgments of superior courts' "].)*fn18
Although section 618 did not bar the trial court from accepting the verdict as complete and discharging the jury, the circumstance remains that the record does indeed disclose that the court failed to poll Juror Brown on two of the special verdict questions, including the one related to the issue of apportionment. As observed earlier, the Court of Appeal below concluded that defendants' failure to object to the incomplete polling did not constitute a "waiver" of any such defect. In this court, defendants argue that the conclusion reached by the intermediate appellate court was correct, although defendants propose a slightly different analysis in support of that result.
We disagree with the Court of Appeal, and with defendants. As explained below, by not objecting to the incomplete polling, defendants forfeited*fn19 their right to assert that the failure to poll Juror Brown on the final special verdict question, related to apportionment, rendered that part of the verdict invalid.
We briefly review the relevant case law. In People v. Lessard (1962) 58 Cal.2d 447 (Lessard), a capital case, the original reporter's transcript suggested that one juror had not been polled. (Id., at p. 452.) In response to the defendant's assertion on appeal that he was thereby deprived of his statutory right to a complete polling of the jury, we first noted that "a duly verified correction to the reporter's transcript shows that the twelfth juror was also independently polled and that he too stated that the announced verdict was also his individual verdict." (Ibid.) We then wrote: "Where a jury is incompletely polled and no request is made for correcting the error, such further polling may be deemed waived by defendant, who cannot sit idly by and then claim error on appeal when the inadvertence could have readily been corrected upon his merely directing the attention of the court thereto." (Ibid., italics added.)
Thereafter, in a civil case, Silverhart v. Mt. Zion Hospital (1971) 20 Cal.App.3d 1022. 1029, the court considered the responses of eight jurors in initial polling that the verdict was theirs, of three who said it was not, and of one who replied ambiguously, " 'Yes, I voted.' " After an immediate second polling, 10 jurors reported that the verdict was theirs, and two said it was not. The defendant did not object to the polling procedure or suggest that the jury should be reconvened. On appeal, the reviewing court held the defendant forfeited his right to challenge the polling, because "any impropriety could have been cured if raised on time" and hence "the failure to object amounted to a waiver of the alleged impropriety or error." (Ibid.) The court in Silverhart further observed that "all reasonable inferences must be indulged on appeal to support, rather than to defeat, the jury's verdict and the judgment thereon" (ibid.) and noted that, so viewed, no impropriety occurred in the polling or the verdict.
The most frequently quoted statement of the applicable rule is found in Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512 (Henrioulle). There, the trial court granted the defendant a new trial because the same nine jurors had not assented to each question on the special verdict form. (Id., at p. 517.) At that time, it was not clear that such a verdict (lacking the votes of the same nine jurors on each special verdict question) was valid. We concluded the granting of a new trial was erroneous, but did not resolve the underlying substantive issue,*fn20 because we found that even if the verdict was invalid on the stated ground, any challenge to the verdict had been forfeited. We explained: "Failure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected." (Henrioulle, at p. 521, fn. omitted, italics added.)*fn21 We concluded that because the alleged voting defect was apparent at the time the jury was polled and could have been cured by further deliberation, the defendant's failure to object forfeited the claim and precluded the trial court from granting a new trial on that basis. (Id., at p. 522.)
More recently, in People v. Wright (1990) 52 Cal.3d 367 - which, like Lessard, supra, 58 Cal.2d 447, was a capital case - we observed: "Defendant urges reversal is required because the record seemingly reflects that one of the twelve jurors . . . was not polled for an indication of his agreement with the verdict." (Wright, at p. 415.) In response, and without reaching the merits of the defendant's claim, we quoted the passage from Lessard, supra, 58 Cal.2d at p. 452, set out above, emphasizing that a claim of incomplete polling may be deemed forfeited, and that a " 'defendant . . . cannot sit idly by and then claim error on appeal when the inadvertence could have readily been corrected upon his merely directing the attention of the court thereto.' " (Wright, supra, 52 Cal.3d at p. 415.)
The forfeiture rule generally applies in all civil and criminal proceedings. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 37.) The rule is designed to advance efficiency and deter gamesmanship. As we explained in People v. Simon (2001)25 Cal.4th 1082 (Simon): " ' " 'The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .' " [Citation.] " 'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' . . ." [Citation.] [¶] "The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603 at page 610 . . . : ' "In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." ' " [Citation.]' (Fn. omitted; [citations].)" (Simon, supra, 25 Cal.4th at p. 1103, italics added.)*fn22
Consistent with this general rule, various treatises and benchbooks have highlighted the particular forfeiture rule at issue in the present case and set out in Henrioulle, supra, 20 Cal.3d 512. One leading text states: "An objection to a defective verdict must be made before the jury is discharged. . . . [D]efects apparent when the verdict was read, and that could have been corrected, are waived [forfeited] by counsel's failure to timely object . . . unless the verdict itself is inconsistent." (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2008) ¶ 9:685, italics deleted; see also id., ¶ 9:672.)*fn23
As suggested above, the basis for the requirement of an objection to asserted imperfections in the polling of a jury concerning its verdict is no different from the basis for requiring objections to other equally important procedural matters at trial - ranging from the introduction of otherwise inadmissible evidence or dispositive procedural rulings,*fn24 to various constitutional violations.*fn25
The requirement of an objection is premised upon the idea that a party should not sit on his or her hands, but instead must speak up and provide the court with an opportunity to address the alleged error at a time when it might be fixed. If defendants had so acted in the present case, the trial court could have inquired of Juror Brown concerning his vote on apportionment - and if that response did not supply a ninth vote on that matter, the court could have sent the jury back for further deliberations. By so proceeding, and consuming at most a few minutes of time, the problem could have been resolved back in May 2006, instead of now - approximately three years later.
In reaching a contrary conclusion, the Court of Appeal suggested, first, that no forfeiture occurred, because the polling defect was not "apparent" to the trial court, to the jurors, or to counsel. (See Henrioulle, supra, 20 Cal.3d 512, 521 [a claim may be forfeited "if the alleged defect was apparent at the time the verdict was rendered and could have been corrected"].) In this respect the appellate court characterized the polling as "confusing" and concluded that "[t]here was no realistic opportunity for defense counsel to object . . . even if an error had been noticed," because the trial court "took the matter out of counsel's hands." In addition, the appellate court suggested the trial court erred by failing to ask counsel whether there was "anything further" before, rather than after, the court discharged the jury.
The record reflects, however, that the polling was methodical. The trial court's polling of Juror Brown concerning most of the special verdict questions - but not the apportionment question - was not confusing, nor did defense counsel's failure to notice this omission establish that the polling was confusing. This situation was not one in which it was impractical to expect defense counsel to be able to follow the course of the polling and make a contemporaneous objection to any omission. Indeed, as observed earlier, immediately prior to polling the jury the trial court noted its hope that each juror would have available his or her "cheat sheet" - the personal "colored copy" of the special verdict form (see ante, fn. 1). The record also reflects that counsel for both parties had copies of the special verdict form immediately prior to the commencement of the jury's deliberations. Under these circumstances, it is reasonable to assume that thereafter - immediately after the jury's delivery of its verdict and immediately prior to the trial court's polling of the jury - all trial counsel had in their possession copies of the special verdict form, with which they could follow the trial court's polling and take notes concerning the response of each juror. Evidently, defense counsel failed to do so accurately, but this was no fault of the trial court.
Nor, contrary to the appellate court's characterization, did the trial court take the matter out of defense counsel's hands. After accepting the verdict and then thanking the jury at length, the court simply proceeded to address postverdict matters. The court was not obligated to ask counsel whether there was "anything further" prior to discharging the jury. By asking that question afterward, the court did not deprive defense counsel of earlier opportunities to object when the court had completed its polling of Juror Brown, or immediately after the court had thanked the jurors for their service but before the jury was discharged.
We conclude that the incomplete polling of Juror Brown was indeed "apparent at the time the verdict was rendered and could have been corrected." (Henrioulle, supra, 20 Cal.3d 512, 521, italics added.) The polling defect is apparent to any reader of the reporter's transcript. The circumstance that it evidently escaped notice by defense counsel and others does not indicate that the incomplete polling was "not apparent" as we employed that term in Henrioulle. As plaintiffs observe: "If a 'defect' like the one here were deemed not 'apparent,' counsel for losing parties - in both civil and criminal cases - would have an incentive to keep mum about a possible yet curable defect and voice objections only after the jury is discharged, when a cure is too late, thus mandating reversal and retrial. Although most counsel would resist that temptation, neither parties nor counsel should be given that incentive in the first instance. Rather, the incentive should be in favor of mandating an objection to increase the chances that such defects are detected and cured before the jury is discharged."
Nor do we find persuasive the Court of Appeal's attempt to distinguish prior cases involving forfeiture. The appellate court below observed that "[i]n both Henrioulle . . . and Silverhart . . . , there were at least nine votes to support a verdict at the time the waiver occurred," and it speculated that in Henrioulle, we found the asserted defect (the absence of evidence that the same nine jurors had voted for each special verdict element) could be forfeited because that alleged defect was "less severe than an eight-vote special verdict, the defect in this case." (Italics added.) The appellate court below added: "It is also possible to view the written verdict as inconsistent with the oral verdict as disclosed by the polling. Inconsistent verdicts can be reviewed on appeal even if not objected to below."
As noted earlier, it cannot be established that the verdict in the present case was supported by eight votes only, rather than by nine or more votes. Nor do we find support for the suggestion that forfeiture of the right to challenge the polling of a jury depends upon the severity of the alleged defect in the verdict.*fn26 Nor, contrary to the Court of Appeal's assertion, is it possible to view the defect here as an "inconsistent verdict."*fn27
For these reasons, we reject the Court of Appeal's determination that defendants did not forfeit their claim of incomplete polling.*fn28
As noted, defendants suggest that the appellate court's no-forfeiture determination was correct, although for reasons upon which the Court of Appeal did not rely. We find defendants' alternative analysis to be unpersuasive.
First, defendants reiterate their assertion that the verdict was supported by only eight votes and hence was "not a constitutional verdict as a matter of law" - a defect that, defendants claim, cannot be forfeited. As observed earlier, however, defendants' argument rests upon a faulty premise: They rely upon the various juror declarations, but as also observed earlier, the Court of Appeal's conclusion that all of the declarations are inadmissible is not before us and we treat that question as settled for purposes of this case. Accordingly, as we have explained, defendants' claim that there were eight votes only - and not nine or more votes in support of the verdict - has not been, and cannot be, established by admissible evidence.
Defendants also assert that their claim of incomplete polling was not forfeited because, they observe, there is no indication that their failure to object was "the result of a desire to reap a 'technical advantage' or engage in a 'litigious strategy.' " (Woodcock v. Fontana Scaffolding & Equipment Co. (1968) 69 Cal.2d 452, 456, fn. 2 (Woodcock).)
In Woodcock, a jury returned a verdict for the plaintiff, a worker who had been physically injured in the course of employment, in the sum of $13,000. Thereafter, on appeal, the parties contested an alleged ambiguity in the verdict.
The defendant asserted that the $13,000 represented the entire amount of the plaintiff's damages, and hence that sum was required to be reduced by the amount of workers' compensation benefits received by the plaintiff. The plaintiff argued that the $13,000 sum already reflected an offset by the jury for the workers' compensation payments. We upheld the defendants' position, finding that, in light of the jury instructions, the verdict was not ambiguous, that it included workers' compensation payments, and hence that the amount of the damages awarded was required to be reduced accordingly. (Woodcock, supra,, 69 Cal.2d 452, 457-459.) Despite arriving at that conclusion, however, we also observed, in dictum, that when a verdict is truly ambiguous, the adversely affected party should request that the trial court act under section 619*fn29 to secure from the jury a " 'more formal and certain verdict.' " (Woodcock, supra, 69 Cal.2d at p. 456.) In this respect, we further observed in a footnote that is presently relied upon by defendants: "Frequently, failure to object to the form of a verdict before the jury is discharged has been held to be a waiver of any defect. [Citations.] However, waiver is not automatic, and there are many exceptions. [Citations.] [¶] Waiver is not found where the record indicates that the failure to object was not the result of a desire to reap a 'technical advantage' or engage in a 'litigious strategy.' [Citations.] . . . In . . . many . . . cases, waiver is not an issue where a defect is latent and there is no hint of 'litigious strategy.' [¶] There was no waiver here because, in light of the instructions, the verdict was not ambiguous. [Citation.] Accordingly, there was nothing to clarify. But even if the verdict were ambiguous, there is no hint of a purpose to achieve a 'technical advantage' or fulfill a 'litigious strategy,' and defendant should not be estopped to make his objections." (Id., at p. 456, fn. 2, italics added.)
Defendants assume that Woodcock's articulated exception to the waiver (forfeiture) rule for ambiguous verdicts, as to which a party failed to object and seek a more formal verdict under section 619, applies as well to the incomplete polling of a juror under section 618. Defendants do not cite any decision that has so extended the exception described in Woodcock'sdictum, however,*fn30 and we decline to so extend it here.*fn31 We agree with plaintiffs that such an exception to the objection and forfeiture rule would be unwarranted in the context of incomplete polling under section 618. As plaintiffs observe, a court generally can avoid or cure an ambiguity in a verdict by interpreting it - as we did in Woodcock, reading the verdict's " 'language . . . in connection with the pleadings, evidence and instructions' " (Woodcock, supra, 69 Cal.2d 452, 456) - and thereby obviating a need for reversal and retrial. But without a timely objection to incomplete polling, a court cannot avoid or cure the defect: after the jury's discharge, the court can neither complete the polling nor return the jury to its deliberations.
We conclude that defendants, by failing to timely object to the incomplete polling of Juror Brown, forfeited their claim of error.*fn32
The judgment rendered by the Court of Appeal is reversed. The matter is remanded to that court for proceedings not inconsistent with this opinion.
WE CONCUR: KENNARD, J., BAXTER, J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J.
Review Granted XXX 161 Cal.App.4th 848.