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Keener v. Jeld-Wen

May 7, 2009


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 ...

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