APPEAL from orders of the Superior Court of Los Angeles County, James R. Dunn, Judge. Affirmed in part; dismissed in part; remanded with directions (Los Angeles County Super. Ct. No. BC 150151)
The opinion of the court was delivered by: Flier, J.
CERTIFIED FOR PUBLICATION
A jury rejected Mitchell Grobeson's claims that the City of Los Angeles (City) and Daniel Watson unlawfully retaliated against Grobeson in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and Labor Code section 1101 et seq.; that City and Watson unlawfully discriminated against Grobeson and harassed him in violation of the aforesaid statutes; that City constructively discharged Grobeson; and that appellant Watson unlawfully retaliated against Grobeson and harassed him in violation of FEHA and Labor Code section 1101 et seq.*fn1
The trial court granted Grobeson's motion for a new trial on the ground of juror misconduct as to the discrimination, retaliation and constructive discharge claims in City's instance and also on the retaliation claim against Watson. The appeal is from this order.
Grobeson cross-appeals from the trial court's denial of his equitable claim for reinstatement as a police officer. Grobeson also cross-appeals from the order granting City's motion for summary judgment on Grobeson's claim under title 42 United States Code section 1983 and the order denying Grobeson's motion for a directed verdict. Finally, Grobeson claims that the trial court erred in making various evidentiary rulings and in denying his request for certain jury instructions.
We affirm the order granting the motion for a new trial and therefore dismiss the cross-appeal. We remand with directions to dismiss the claim for unlawful retaliation against Watson under the authority of Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.
Grobeson joined City's police force after graduating magna cum laude from Chapman College in 1981. After a fine start,*fn2 he states he was forced to leave the police department once his sexual orientation became known. This led to his first lawsuit against City, which was settled in 1993. One of the terms of the settlement called for his reinstatement with full seniority. We quote Grobeson's characterization of this settlement: "In essence, the 1993 Agreement set forth terms and conditions of employment that were unique to Grobeson, promising involvement in the LAPD's training, recruitment and outreach related to the gay and lesbian community, well beyond the typical LAPD sergeant."
Unfortunately, matters did not go well after 1993. Serious tensions materialized immediately between Grobeson and Watson, who at the time was commanding officer of the personnel group. In 1994, the police department initiated disciplinary proceedings against Grobeson; the charges centered on Grobeson's activities in the gay and lesbian communities. In 1996, after a welter of charges and countercharges, Chief of Police Williams approved two significant suspensions of Grobeson totaling 195 days. These suspensions were set aside by Judge Carolyn Kuhl of the Los Angeles Superior Court in 1998. Grobeson filed for a stress-related disability retirement in 1995, which was granted in December 1997.
In the meantime, Grobeson filed the instant action in 1996. The operative complaint, filed in April 2003, went to trial against City and Watson on November 16, 2007. The jury returned its verdicts after a five-week trial on December 21, 2007.
1. The Juror Declarations
One of the juror declarations filed in support of Grobeson's motion for a new trial was by Juror Keu Wu. Among other things, Wu's declaration stated that, during a break in the testimony of Watson, Juror Kishiyama got into a conversation with Wu, telling Wu that she liked Watson's voice and that Kishiyama ". . . liked listening to romantic novels on tape. Then she said, 'I made up my mind already. I'm not going to listen to the rest of the stupid argument.' I later told [J]uror [No.] 3, Melinda Jauregui, about the comment right before jury instructions were read." (Jauregi, who also filed a declaration, stated that she did not remember Wu telling her about Kishiyama's statement.) Wu's declaration was dated January 16, 2008.
On March 19, 2008, Attorney Laura Faer, one of Grobeson's lawyers, executed a declaration that stated, among other things, that she spoke with Kishiyama on the telephone on January 13, 2008. Faer identified herself and asked Kishiyama if she had any thoughts about the trial that she would be willing to share. Faer's declaration goes on to state: "4. One of her first comments to me was: 'I made up my own opinion in the second week of trial.' I typed this comment verbatim in my interview notes as she said it[.] [¶] 5. Throughout the conversation, she made it clear that the 'opinion' that she had reached in the second week of trial was to vote against the plaintiff. Among other things, she stated, 'I was very irritated when you were conducting the case.'"
Kishiyama executed a declaration on March 30, 2008, in which she denied making the statements attributed to her by Wu. Kishiyama's declaration states that she made up her mind only during jury deliberations, after the case was submitted to the jury.
2. The Trial Court's Ruling
Grobeson propounded four charges of juror misconduct. Grobeson claimed that four jurors were biased; that matters outside the record were considered by the jury in its deliberations; that there was a failure to deliberate; and that one juror prejudged the case and concealed bias on voir dire.
The trial court rejected all but one of these claims. The court granted the motion for a new trial on the ground that Juror Kishiyama committed egregious misconduct by discussing the merits of the case prior to deliberations and by prejudging the case.
In arriving at this ruling, the court relied on Andrews v. County of Orange (1982) 130 Cal.App.3d 944 (Andrews) and Deward v. Clough (1966) 245 Cal.App.2d 439 (Deward) (disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5), two decisions we discuss below.
The court found that Kishiyama made the statement we have set forth above to Wu prior to the time the case was submitted to the jury; the court found this to be "serious misconduct." The court noted that the vote on the harassment claim against City was 11 to 1 and, as to Watson, the vote on the harassment claim was 12 to 0; that the vote on the constructive discharge claim was 10 to 2; and that the votes on all the other claims was 9 to 3. Citing Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, the court observed that where the verdict is 9 to 3, the disqualification for bias of any one of the majority jurors could have resulted in a different verdict. Thus, misconduct by one such juror was prejudicial.
The court rejected Kishiyama's declaration because it consisted
"largely of statements by Ms. Kishiyama as to her mental processes and
state of mind about how she reached her decision." This was
inadmissible under Evidence Code section 1150, subdivision (a).*fn3
The court noted that Kishiyama denied making the
statement to Wu. "On the other hand, there is a striking omission in
Ms. Kishiyama's declaration -- she does not deny making the statement
to Ms. Faer that she 'made up my opinion on the second week of trial.'
. . . The Faer declaration corroborates Mr. Wu's declaration that Ms.
Kishiyama made the statement to him, and that it was made prior to the
case being submitted to the jury."
The court concluded that Kishiyama had prejudged the case, that this was misconduct and that it was prejudicial. The court granted the motion for a new trial on all of the causes of action that had been decided by a 9 to 3 vote, i.e., the discrimination and retaliation claims in City's instance and on the retaliation claim against Watson.
The court also granted the motion for a new trial on the constructive discharge claim, which was decided 10 to 2, because of the "confusion on some of the questions" on the verdict form.
This means that the new trial order did not extend to the harassment claims against City, where the vote was 11 to 1, and the same claim against Watson where the vote was 12 to 0.
1. The Governing Principles
After citing Evidence Code section 1150, subdivision (a) (see fn. 3, ante), People v. Hutchinson (1969) 71 Cal.2d 342, 349-350, goes on to hold: "This distinction between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved, has been advocated by commentators [citations], adopted by the Uniform Rules of Evidence [citations] and the Model Code of Evidence [citation], and has been the basic limitation on proof set by the leading decisions allowing jurors to impeach their verdicts. [Citations.] [¶] Although section 1150 does not alter the rule against impeachment of a verdict by the jurors, its limitation of impeachment evidence to proof of overt conduct, conditions, events, and statements, as suggested by the commentators, vitiates the major policy arguments supporting the common law rule. [Citation.] This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent. The only improper influences that may be proved under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration."*fn4 (Fn. omitted.)
Cases where there was an overt act that in and of itself was improper, such as a juror reading a novel during the taking of testimony or a juror's consultation with an attorney for advice on the law applicable to the case (In re Stankewitz (1985) 40 Cal.3d 391, 398), are the relatively easy ones to resolve. The matter becomes more difficult when it is not an overt act but a statement from a juror that is claimed to constitute misconduct. To be precise, there are usually two statements in such cases; there is a declaration (statement) by one juror who reports the statement of another juror. The focus is, of course, on the second statement. In re Stankewitz recognizes the difference between an overt act and a statement and provides guidance on how to deal with the problem when it is not an overt act but a juror's statement that is at issue.
In re Stankewitz involved a conviction for murder and robbery. One of the issues in the case was whether the robbery had been actually committed because, after taking the victims' wallets at the point of a gun, the defendant threw the wallets back after going through them. (In re Stankewitz, supra, 40 Cal.3d at p. 396.) At issue were the declarations of two jurors about statements made by another juror, a retired police officer, that under the foregoing facts a robbery had been committed.*fn5
The court in Stankewitz noted that subdivision (a) of Evidence Code section 1150 specifically makes admissible statements made within or without the jury room. (See fn. 3, ante.) The court went on to hold: "Although this evidence may be received, it must be admitted with caution. Statements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors -- e.g., what the juror making the statement meant and what the juror hearing it understood. They are therefore more apt to be misused by counsel in an effort to improperly open such processes to scrutiny. But no such misuse is threatened when, as here, the very making of the statement sought to be admitted would itself constitute misconduct. Such an act is as much an objective fact as a juror's reading of a novel during ...