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Tessa Cavazos v. East Side Union High School District


December 21, 2010


(Santa Clara County Super.Ct.No. 1-07-CV085424)

The opinion of the court was delivered by: Duffy, J.

Cavazos v. East Side Union High School CA6


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Tessa Cavazos is a high school teacher and was the head coach of the boys' varsity basketball team at Independence High School in San Jose for the 2005-2006 school year. After being informed in April 2006 by interim principal Carol Blackerby that she would no longer hold this head coaching position, Cavazos brought suit against Blackerby and the East Side Union High School District, alleging, inter alia, claims of gender discrimination and sexual harassment.*fn1 Defendants successfully moved for summary adjudication of the gender discrimination claim, and a jury later found in favor of defendants on the harassment claim. Cavazos appealed from the judgment entered against her.

On appeal, Cavazos challenges the summary adjudication order in favor of the District, claiming that the evidence she presented in opposition to defendants' motions supported an inference of discriminatory animus on the part of defendants that precluded the summary disposition of the gender discrimination claim. She also claims that the jury committed misconduct in its application of the legal standard of causation that resulted in a defense verdict on the harassment claim. We conclude that there was no triable issue of material fact supporting the gender discrimination claim and that therefore summary adjudication was proper. We find further that Cavazos presented no admissible evidence in support of her claim of jury misconduct and reject that contention as well. We will therefore affirm the judgment.


Cavazos filed suit in May 2007, and filed the (operative) first amended complaint against the District and Blackerby on October 16, 2007. She alleged four causes of action, namely, violations of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA); intentional interference with economic relationship against Blackerby only; defamation; and intentional infliction of emotional distress. In reality, the first cause of action for alleged FEHA violations, as the court later determined, consisted of two causes of action for gender discrimination and harassment.

In June 2008, defendants filed separate motions for summary adjudication of claims (the motions), attacking each cause of action of the first amended complaint. Defendants argued, inter alia, that (1) Cavazos could not establish one or more of the required elements of a discrimination or harassment cause of action; (2) because Blackerby was not an "employer," she could not be held liable for discrimination under FEHA; and (3) Cavazos could not establish that Blackerby committed any acts of harassment. Cavazos opposed the motions. After a hearing, the court, inter alia, granted defendants' motions for summary adjudication of the claim for gender discrimination under FEHA, and denied summary adjudication of the claim for harassment under FEHA.*fn2

The case proceeded to jury trial on the FEHA harassment and the intentional infliction of emotional distress claims. After a nine-day trial, a jury returned a verdict in September 2008 in favor of defendants on the workplace harassment and intentional infliction of emotional distress causes of action. Cavazos filed motions for judgment notwithstanding the verdict (jnov) and for new trial, which motions were opposed by defendants. The court denied Cavazos's motions. A judgment was entered in favor of defendants, and Cavazos filed a timely appeal.


I. Issues Presented

Cavazos presents the following issues to be resolved in this appeal:

1. Whether the court erred in granting summary adjudication of the claim against the District for discrimination under FEHA.

2. Whether Cavazos is entitled to a new trial or jnov with respect to the claim against the District for harassment under FEHA, because the jury allegedly acted improperly by answering the first six questions of the special verdict form in favor of Cavazos and then answering the seventh question (regarding whether the harassment or failure to take immediate corrective action was a substantial factor in causing Cavazos's harm) in favor of the District.*fn3

II. Summary Adjudication of the Discrimination Claim

A. Standard of Review

1. Summary judgment and summary adjudication

"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) As such, the summary judgment statute, Code of Civil Procedure section 437c,*fn4 "provides a particularly suitable means to test the sufficiency of the plaintiff's prima facie case and/or of the defendant's [defense]." (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203 (Caldwell).) A summary judgment motion must demonstrate that "material facts" are undisputed. (§ 437c, subd. (b)(1).) The pleadings determine the issues to be addressed by a summary judgment motion. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885, revd. on other grounds Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490.)

"A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (§ 437c, subd. (f)(1).) Like summary judgment, the moving party's burden on summary adjudication is to establish evidentiary facts sufficient to prove or disprove the elements of a claim or defense. (§ 437c, subds. (c), (f).)

The moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) A defendant moving for summary judgment must " 'show[ ] that one or more elements of the cause of action . . . cannot be established' by the plaintiff." (Id. at p. 853, quoting § 437c, subd. (o)(2).) A defendant meets its burden by presenting affirmative evidence that negates an essential element of the plaintiff's claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) Alternatively, a defendant meets its burden by submitting evidence "that the plaintiff does not possess, and cannot reasonably obtain, needed evidence" supporting an essential element of its claim. (Aguilar, supra, 25 Cal.4th at p. 855.)

Since both summary judgment and summary adjudication motions involve pure questions of law, we review the granting of summary judgment or summary adjudication de novo to ascertain from the papers whether there is a triable issue of material fact. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438; Travelers Casualty & Surety Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1450.) In doing so, we "consider[ ] all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

In our independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party's favor, and (3) the opposition--assuming movant has met its initial burden--to "decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]" (Chavez v. Carpenter, supra, 91 Cal.App.4th at p. 1438; see also Burroughs v. Precision Airmotive Corp. (2000) 78 Cal.App.4th 681, 688.) We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale. (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)

2. Employment discrimination claims

Under FEHA, it is unlawful "[f]or an employer, because of the . . . sex . . . of any person, . . . to bar or to discharge the person from employment . . . , or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." (Gov. Code, § 12940, subd. (a).) California courts apply the so-called McDonnell Douglas*fn5 three-part test in resolving discrimination claims. The "test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." (Guz, supra, 24 Cal.4th at p. 354.)

The initial step is the plaintiff's initial burden--one which is " 'not onerous' " (Guz, supra, 24 Cal.4th at p. 355)--of showing a prima facie case of discrimination. (Id. at p. 354.) Although the particular elements may vary, generally, "the plaintiff must provide evidence that (1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.]" (Id. at p. 355, fn. omitted.) Once that prima facie showing is made by the employee, the burden then "shifts to the employer to rebut the presumption [of discrimination] by producing admissible evidence, sufficient to 'raise[] a genuine issue of fact' and to 'justify a judgment for the [employer],' that its action was taken for a legitimate, nondiscriminatory reason. [Citations.]" (Guz, supra, 24 Cal.4th at pp. 355-356.) "If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.] In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. [Citations.] The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.]" (Id. at p. 356.)

In the context of an employer's motion for summary judgment or summary adjudication involving an employment discrimination claim, " 'the burden is reversed . . . .' [Citation.]" (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1731 (Martin), quoting University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036.)*fn6 Where the employer "presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to defendant's showing." (Caldwell, supra, 41 Cal.App.4th at p. 203.)

In evaluating whether the employer's reasons for the adverse action were nondiscriminatory, the court does not look at the wisdom of the employer or whether it was correct in its reasons for taking the action. (Guz, supra, 24 Cal.4th at p. 358; see also Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (Horn) [employee's proof of discrimination must be more than a showing that "employer's decision was wrong, mistaken, or unwise"].) Rather, "[w]hile the objective soundness of an employer's proffered reasons supports their credibility . . . , the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, 'legitimate' reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.]" (Guz, at p. 358.) Furthermore, "an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.]" (Id. at pp. 360-361, italics added; see also Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003 (Hersant) [ultimate issue is whether employer acted for discriminatory reason, "not whether the employer offered an unbelievable explanation for the adverse action"].) Thus, "an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory." (Guz, at p. 361, fn. omitted.)

B. Merits of Summary Adjudication Motion on Discrimination Claim

1. Relevant facts in support of motion

Cavazos was a full-time certificated (tenured) employee of the District and a faculty member of Independence High School during the 2005-2006 school year. During that school year, she had an extra-duty assignment at Independence as the head coach of the boys' varsity basketball team. During that school year, another woman (Dee Medberry) was the head coach of the Independence boys' varsity water polo team. Practice for the varsity basketball team commenced in November 2005, and the final league game took place on February 17, 2006. Cavazos received full compensation as a faculty member and also received the full stipend for her services as head coach of the boys' varsity basketball team for the 2005-2006 school year.

Blackerby was the interim principal at Independence for the 2005-2006 school year. In that capacity, she was responsible for supervising, directing, and evaluating all District employees at Independence, including faculty members and coaches. In early January 2006,*fn7 Larry Nichols, a parent who served on the school site committee and whose son was on the varsity basketball team, informed Blackerby of his concerns about Cavazos's methods of disciplining players. Nichols told Blackerby that Cavazos, among other things, (1) had ordered a player, Joe Ford, to tape his mouth shut during practice, and (2) had refused to allow the cleaning of uniforms after a loss, commingling the dirty uniforms and making the players wear them for subsequent games "so that they would 'smell defeat.' " Blackerby thought that the allegations were serious; on January 6, she interviewed 12 of the 14 members of the team and had them complete a questionnaire concerning Cavazos's disciplinary techniques. After the interviews, Blackerby informed Cavazos on the same day that she was being placed on paid administrative leave, which temporarily relieved her of her coaching duties but did not constitute disciplinary action. Blackerby also reported Nichols's allegations to Child Protective Services.

Shortly thereafter, Cavazos's union representative, Larry Scharch, told District Superintendent Bob Nunez that the District could not take action against Cavazos without a written complaint from the parent. Accordingly, Nunez decided to return Cavazos to her coaching duties on January 11. Blackerby advised Nichols after Cavazos was returned to her coaching duties that his complaint could not be processed by the District unless he submitted it formally in writing. On February 10, Nichols submitted by e-mail to Nunez, with a copy to Blackerby, a complaint concerning Cavazos's disciplinary methods that tracked the concerns he had expressed earlier.*fn8 Blackerby gave Cavazos a copy of this complaint on February 17. Cavazos requested a meeting with Blackerby and Nichols to discuss the complaint. Blackerby scheduled a meeting for March 7, but Nichols informed her the day before the meeting that he would not attend; Blackerby so informed Cavazos the next day. Cavazos, through her then-counsel, submitted a written response to the Nichols complaint on March 10.

Blackerby did not investigation the matters in Nichols's formal complaint. Instead, an investigation was conducted by Patricia McKernan, an attorney for the law firm representing the District. McKernan prepared an 11-page report of her investigation, dated April 14, in which she noted that she had interviewed Cavazos, Tim Barr (the athletic director), Reggie Synegal (Cavazos's assistant coach), and 12 of the 14 members of the boys' varsity basketball team. Cavazos never told McKernan that (1) she felt that she was being treated differently or harassed because of her gender; (2) there were other coaches using disciplinary methods as harsh or harsher than the ones she had used; (3) anyone had made offensive, demeaning or insulting comments about her based on her gender; or (4) anyone had made negative remarks about women coaches. McKernan concluded that six of the 10 complaints by Nichols concerning Cavazos's methods of disciplining her players had been substantiated.*fn9 McKernan found that Cavazos disciplined Ford "by giving him an ultimatum to either tape his mouth shut during a practice session or leave the team," and that "Ford was forced to engage in rigorous exercise for approximately thirty minutes with his entire mouth taped shut . . . Cavazos created a serious health and safety risk for Ford." McKernan also concluded that "Cavazos refused to allow players to wash their soiled uniforms and forced players to wear dirty uniforms that she had stored together in a bag during week-long intervals between games. Cavazos's actions could have resulted in the spread of disease and created a serious health risk for students." McKernan also found that "Cavazos appears unwilling to take responsibility for her actions and fails to understand that some of her actions created serious health risks for students in violation of the District's Student Rights policy and California law establishing a teacher's duty of care." (Fn. omitted.)

Cavazos was provided a copy of the McKernan report on April 14. At that time, the District's Human Resources Director, Catherine Giammona, gave Cavazos a letter of reprimand and indicated that she would no longer be the head coach of the boys' varsity basketball team. The letter indicated that Cavazos's "conduct [in ordering Ford to tape his mouth during practice, had] created a serious health and safety risk for this student," and that her "conduct [in refusing to allow the washing of uniforms between games and requiring players to wear soiled uniforms after they had been stored together, had] jeopardized the health of these students." The District subsequently named Skip Yenchik, a male, as the Independence boys' varsity basketball head coach.

During the 2005-2006 school year, Blackerby received no complaints about the disciplinary tactics of coaches other than Cavazos. And during that school year, Blackerby declared that no one had ever informed her that Cavazos believed that she was being treated differently in any respect because of her gender. Representatives of the District--Blackerby, Giammona, and Nunez--declared that they had not taken any action concerning Cavazos because of her gender.

Cavazos filed a grievance on May 4, asserting that discipline had been imposed against her without due process. The District denied the grievance. On July 12, Cavazos, through her attorney, Caryn Fabian, sent a letter to Nunez seeking a monetary settlement as well as Cavazos's reinstatement as head coach of the varsity boys' basketball team. Nunez had understood the letter as a claim for money and an offer of settlement, and he forwarded it to counsel. Fabian sent a follow-up letter to McKernan and Nunez on September 13, asking "what action, if any, the [D]istrict is going to take in response to the claim." At a meeting on October 3 involving Cavazos, Fabian, Nunez, and the District's attorney, "Cavazos [according to Nunez] for the first time identified specific acts by specific employees that she alleged were discriminatory and/or unlawful harassment." As a result of being provided with this information, McKernan conducted an investigation of Cavazos's allegations and prepared a written report dated December 20. McKernan concluded from her investigation that there was "no evidence to substantiate Cavazos's allegations that she . . . [was] subjected to gender discrimination or harassment of any kind."

2. Facts presented in opposition to motion

Ford stated in his declaration that because he had talked back to Cavazos during practice, she had told him to put some athletic tape on his mouth while he was around her. He had the tape over his mouth for less than five minutes, and he pulled it loose while he ran and did other physical activity; he had no trouble breathing. He had explained to McKernan during her investigation what had happened concerning the taping of his mouth. He was never interviewed by Blackerby. He felt that Cavazos should not have been disciplined because of the incident.

Cavazos declared in opposition to the motions that in late February or early March,*fn10 Jason Holleman--a physical education teacher at Independence--told her that she should "watch [her] back" because of negative comments that certain staff were making about her as a woman. The comments included saying that women should not be coaching boys, and calling Cavazos a profane misogynistic name.*fn11 Holleman testified in his deposition that "[t]here were comments [by unspecified coaches] that there shouldn't be a woman teacher--or a coach coaching men's sports," and that one coach, Bill Wright, called Cavazos a profane misogynistic name on several occasions.*fn12 Holleman told Cavazos about Wright's comments because they were demeaning and Cavazos was a friend. Before her removal as boys' varsity basketball coach, Cavazos learned that Blackerby had asked three men, including Yenchik, if they were interested in the position.

Cavazos pointed out in her opposition to the motions that there were discrepancies in the deposition testimony concerning the decision in January to place her on paid administrative leave. Blackerby testified that she had not been the person recommending that Cavazos be placed on leave; Giammona had directed Blackerby in her investigation of the informal complaint;*fn13 and Giammona had called her and told her to meet with Cavazos and her union representative to place Cavazos on leave. Giammona, however, testified that she had not been involved in any discussion regarding placing Cavazos on leave. At the time, according to Barr, Blackerby told him that Blackerby had "suspended Tessa Cavazos from coaching." Blackerby testified that after rescinding the administrative leave order, she had been instructed by someone at the District (most likely Giammona) that it would need a written complaint from Nichols; Giammona testified that she had not told Blackerby to obtain a written complaint from Nichols.

3. Merits of the District's motion

a. evidence

The District conceded in its motion that because Cavazos was replaced in her position as the head coach of the boys' varsity basketball team with a male, Yenchik, she had presented "a prima facie case for discrimination, and nothing more." It argued, however, that it satisfied the second prong of the McDonnell Douglas test--namely, that it "produc[ed] admissible evidence sufficient to 'raise[] a genuine issue of fact' and to 'justify a judgment for the [employer],' that its action was taken for a legitimate, nondiscriminatory reason. [Citations.]" (Guz, supra, 24 Cal.4th at pp. 355-356.) The District urged that summary adjudication was appropriate because Cavazos had no evidence from which a rational inference could be drawn that the District's stated reasons for removing her as head coach were "a pretext for unlawful bias. [Citation.]"

The District presented ample admissible evidence that its reasons for removing Cavazos as head coach had nothing to do with her gender. These reasons, as detailed above, were that it had credible evidence that Cavazos (1) had jeopardized the health and safety of one of her players, Ford, by using a disciplinary measure of having him tape his mouth for a lengthy period of time during practice; and (2) had jeopardized the health of the entire team by employing the extraordinary disciplinary and motivational technique of precluding players from washing their soiled uniforms after a game and then requiring them to wear dirty uniforms that had been stored together in a bag during week-long intervals between games. These disciplinary methods were initially confirmed by Blackerby after an informal complaint by the parent, Nichols, and were again confirmed after a detailed investigation was conducted by the District's attorney, McKernan, who prepared a lengthy report which resulted in the District's action against Cavazos. Further, while Cavazos questioned the length of time that Ford's mouth had been taped and was unsure of the number of games that the team had worn soiled uniforms, she did not dispute that she, in fact, took the disciplinary measures about which Nichols complained.

Cavazos contends that the evidence submitted in opposition to the motion "plainly supports an inference [of] discriminatory animus and a causal connection . . ." thereby satisfying the third McDonnell Douglas prong and warranting denial of the District's motion. She raises a number of evidentiary issues that fail to support her contention and cites to authority which is inapposite to this case.

She takes issue with the investigations conducted by the District, claiming that they were "inadequate and unsupported." Cavazos argues that Blackerby's investigation of Nichols's informal complaint was deficient, in part, because she did not interview Ford.*fn14 But the evidence was that Blackerby interviewed nearly the entire team, and there is nothing to suggest that her failure to interview Ford evidenced some latent gender bias on her part. Further, since Blackerby's investigation did not result in Cavazos's removal as head coach--but merely resulted in a very short-lived paid administrative leave--her claim that its supposed deficiencies suggests discriminatory animus is without merit.

Cavazos argues further that McKernan's investigation that resulted in her April report was deficient because the attorney did not include in her report that Ford had told her that he had worn the tape for only a few minutes and that it had been loose when he ran.*fn15 But some or all of the other 11 team members McKernan interviewed may have told her that Ford had exercised for approximately 30 minutes with his mouth taped shut--as she concluded in her report--thereby justifying her finding. Further, even if McKernan erred in her conclusion as to the disciplining of Ford, any assumed error does not negate her findings regarding the second disciplinary incident--the forced wearing of soiled, commingled uniforms--that she found to have constituted a health risk for the entire team. Moreover, even if McKernan's conclusion as to the disciplining of Ford were in error, there is no basis upon which to draw a reasonable inference of the District's discriminatory animus from that supposed error made not by the District, but by an attorney it had hired to independently investigate Nichols's written complaint. (Horn, supra, 72 Cal.App.4th at p. 807 [employee's proof of discrimination must be more than a showing that "employer's decision was wrong, mistaken, or unwise"].)

Cavazos cites to discrepancies between the testimony of Blackerby and Giammona concerning the former's investigation of Nichols's informal complaint and the decision to place Cavazos on paid administrative leave. She also complains about the evidentiary opacity surrounding the decision to reinstate her shortly after she had been placed on leave and regarding the person responsible for Blackerby's contacting Nichols to request that he submit a formal written complaint. None of these issues points to the conclusion that the District's stated reason for ultimately removing Cavazos as head coach was a pretext or otherwise suggest a discriminatory motive. (Guz, supra, 24 Cal.4th at p. 356.) Moreover, even were we to conclude that one or more of these discrepancies suggests that one or more witness for the District was dishonest--a conclusion that is not supported by the record here--any such assumed dishonesty about matters occurring before the formal complaint and investigation that culminated in the District's adverse action does not suggest pretext or a discriminatory motive. (Cf. id. at pp. 360-361 [intentional discrimination cannot be inferred "solely from evidence, if any, that the company lied about its reasons"].)

Additionally, Cavazos reviews the history following the April 14 letter reprimanding her and removing her as head coach. She reviews the chronology in which (1) Fabian sent a letter July 12 claiming that the District had acted illegally and in a manner that constituted sex discrimination; (2) a meeting between the parties did not occur until October 3; (3) after further written communication, McKernan conducted an investigation of Cavazos's harassment and discrimination claims; and (4) McKernan's report was not completed until December 20 and contained the conclusion that there was no evidence substantiating Cavazos's discrimination and harassment allegations. She offers, however, no cogent argument in support of the apparent claim that these events somehow support her claim of pretext or discriminatory motive beyond a critique of the thoroughness of McKernan's investigation and her December report. Cavazos argues that McKernan should have interviewed Holleman.*fn16 But there is no evidence that Cavazos's attorney, Fabian, suggested in her correspondence to the District that Holleman be among the people interviewed by McKernan. Nor is there evidence that Holleman was deliberately omitted as an interviewee.

Lastly, Cavazos cites to evidence that one coach (Wright) called her a profane name on more than one occasion, and there were comments by unspecified coaches that she, as a woman, should not be coaching a boys' team. There is no evidence that these comments were in any way attributable to Blackerby or anyone else at the District involved in the decision to reprimand Cavazos and remove her as head coach. And no evidence suggests that any of them were informed of the comments. Indeed, Cavazos herself--despite the fact that Holleman told her about Wright's offensive comments and told her to watch her back--did not inform Blackerby or McKernan about these comments at any time during the 2005-2006 school year.

b. authorities cited by Cavazos

Cavazos discusses at length two cases decided by this court--Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686 (Mamou), and Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 (Reeves). Neither case supports her position that the court erred here in granting summary adjudication of the discrimination claim against the District.

In Mamou, the plaintiff, a Syrian-born, naturalized citizen of the United States, had been employed for over 10 years by the defendant, a timeshare company. (Mamou, supra, 165 Cal.App.4th at pp. 692-693.) After his termination, he sued, alleging, inter alia, a FEHA claim for discrimination due to his national origin and based upon retaliation for resisting supervisors' attempts to discriminate against other employees' taking sick leave. (Id. at p. 691.) The defendant-employer moved successfully for summary judgment, urging, inter alia, that the dismissal decision was not made by the plaintiff's immediate supervisors (who might have had discriminatory or retaliatory motives); rather, it was made "by more remote managerial officers as to whom there was no evidence of any such motive." (Ibid.)

We reversed, concluding that the plaintiff had presented significant evidence that the employer's claimed nondiscriminatory reason for the termination was false and masked the true, unlawful reasons for the action. (Mamou, supra, 165 Cal.App.4th at pp. 715-716.) We observed that the defendant "never rested on a single coherent explanation for its firing of Mamou, and that several if not all of its explanations were, to put it mildly, questionable." (Id. at p. 716.) We noted further that the employer's approach of an immediate accusation and dismissal of the plaintiff, without allowing him to be heard regarding the employer's allegations of misconduct, including theft, "support[ed] an inference that the claimed reason for dismissing him was not genuinely felt but was instead assumed, like a cloak, to conceal some other motivation." (Id. at p. 720.) We reasoned further that while the defendant based its defense in part on the fact that there was no discriminatory or retaliatory animus on the part of the three people it claimed were responsible for the termination decision, there was substantial evidence that two other supervisors (Curtis and Fiore) were involved in the decision. (Id. at pp. 723-727.) As to these individuals, there was evidence that (1) because of a perceived problem with an excessive number of sales representatives taking leaves of absences in the Northern California region, Fiore (along with Northern California regional sales director Brown), within three months of the plaintiff's termination, had sought the plaintiff's help in discriminating against employees who had taken sick leave, but the plaintiff had refused to do so (id. at p. 696); (2) Fiore continued to urge the plaintiff, less than one month before he was terminated, to help them crack down on employees' perceived abuse of medical leave (id. at p. 697); (3) Curtis, about one month before the plaintiff's termination, asked an employee, " 'What the hell is going on down there in that Northern California region with all those f*ing rag heads,' and said 'We've got to get rid of those f*ing rag heads' " (id. at p. 706); and (4) Curtis, when the plaintiff was terminated, said, " 'I am disappointed in you, my Arab friend' " (ibid.).*fn17

Mamou is obviously distinguishable. In Mamou, there was substantial evidence that belied the employer's claimed nondiscriminatory reason for terminating the plaintiff, including confusing and contradictory explanations of the reason, and the employer's apparent refusal, despite the plaintiff's request, to investigate the truth of the reason. Here, the disciplining of Cavazos and her removal as head coach came about after the District (1) received a specific written complaint of a parent; (2) conducted, through its attorney, a detailed investigation of the parent's claims that included an interview of Cavazos; (3) obtained a lengthy written report detailing the findings of the investigator; and (4) took the adverse action immediately after receiving, and based upon the findings contained in, the report. The action taken by the District was based upon the unambiguous reasons stated in the investigator's report, namely, that Cavazos had endangered the health and safety of her players. No evidence was presented that suggested the falsity of those reasons or that the District did not have a genuine belief in them.

Further, in Mamou, unlike here, there was substantial evidence of discriminatory and retaliatory animus expressed directly by supervisors who were involved in the termination decision. Here, the most that can be said is that one coach--who had no supervisory role and had nothing to do with the adverse decision--made misogynistic and offensive remarks about Cavazos which she learned about later, did not report to anyone, and which were unknown to the people from the District who made the decision to discipline her. Further, there is nothing in the record to suggest that any comments by unidentified coaches that Cavazos, as a woman, should not be coaching a boys' team were communicated to Blackerby or anyone else at the District involved in disciplining Cavazos. The evidence warranting an inference of discriminatory motive present in Mamou is completely absent here.

In Reeves, the plaintiff alleged that he was terminated in violation of FEHA as a result of his complaints about workplace sexual harassment. (Reeves, supra, 121 Cal.App.4th at p. 105.) The trial court granted the defendant's summary judgment motion based upon the claim that the employer had a legitimate, nondiscriminatory reason for terminating the plaintiff which could not be shown to have been pretextual (ibid.)--namely, that he had violated the company's rules, policies, and procedures by pushing another employee to gain entry into the store (id. at pp. 102-104).

We reversed. In doing so, we rejected the defendant's contention that because the person who made the ultimate termination decision (District Manager Hollis) had been unaware of the plaintiff's prior complaint about sexual harassment and had not known about the plaintiff's account of the pushing incident, the employer was necessarily insulated from liability under FEHA. (Reeves, supra, 121 Cal.App.4th at p. 104.) We concluded that "Safeway has failed to make a threshold showing that all material contributors to the decision acted for legitimate nondiscriminatory motives. Nor has [the] defendant shown that [the] plaintiff cannot present sufficient proof to establish that retaliatory animus on the part of one or more contributors to the decision was a substantial contributing factor in bringing about his dismissal." (Id. at p. 113.) In so holding, we observed that "it is not enough [for the defendant-employer] to show that one actor acted for lawful reasons when that actor may be found to have operated as a mere instrumentality or conduit for others who acted out of discriminatory or retaliatory animus, and whose actions were a but-for cause of the challenged employment action. If a supervisor makes another his tool for carrying out a discriminatory action, the original actor's purpose will be imputed to the tool, or through the tool to their common employer." (Ibid.)

In applying this so-called "cat's paw" model, we noted that there were four principal actors (Juarez, Demarest, Harrison, and Hollis) leading to the plaintiff's dismissal, and that the role, conduct, and motives of each had to be considered in determining whether the employer was entitled to judgment. (Reeves, supra, 121 Cal.App.4th at p. 116.) In reviewing the record, we determined that an inference could be drawn as to three of the actors (excluding Hollis) that they had "engaged in retaliation under circumstances justifying an imputation of their conduct and motives to Safeway." (Ibid.) Juarez, who was the employee allegedly pushed by the plaintiff, was one of the workers previously accused of sexual harassment. (Id. at pp. 116-117.) There was evidence that Demarest--who was the store manager and the person to whom the plaintiff had made multiple reports of sexual harassment that the plaintiff felt had not been taken seriously (id. at pp. 100-101)--did not adequately investigate reports of sexual harassment and, upon being informed by Juarez about the alleged assault, acted in a manner that might have been construed as having been retaliatory because he reported the matter to security (not human resources) as " 'possible workplace violence,' " without having first attempted to speak to the plaintiff. (Id. at p. 117.) And Harrison--the person in security to whom Demarest had reported the incident, who had conducted an investigation, and who had recommended to Hollis that the plaintiff be discharged (id. at pp. 103-104)--may have been aware of the plaintiff's prior complaints of sexual harassment, and had made his discharge recommendation for reasons not disclosed by the record. (Id. at pp. 118-119.) We concluded that an inference could be drawn from the evidence that Harrison had not conducted a truly independent investigation of the plaintiff's alleged misconduct, and, further, the defendant had not presented evidence "that Harrison acted for honestly held nondiscriminatory reasons, and even if it had, the evidence supports an inference that Harrison acted as a sort of institutionalized 'cat's paw' to effectuate the retaliatory intentions of supervisors by substantiating their claims of misconduct and presenting the claims, thus reinforced, to upper management." (Id. at p. 119.)

The facts in Reeves are very different from those present here. Unlike the circumstances in Reeves, here there was no evidence of any potential discriminatory motive or a history of problems between Cavazos and Blackerby or others from the District involved in the adverse employment action. And there was no showing that persons with a discriminatory motive hired McKernan to skew the investigation of Nichols's complaint. Thus, the "cat's paw" scenario present in Reeves is inapplicable. Moreover, here, unlike in Reeves, Cavazos was given ample opportunity during the District's investigation of the formal complaint to communicate her position and she was in fact interviewed by McKernan before the District decided to remove Cavazos as head coach. Reeves has no application here.

c. conclusion

The District satisfied its burden of showing by competent evidence that its reasons for disciplining and removing Cavazos as head coach were nondiscriminatory. The presumption of discrimination concerning the District's adverse action thus disappeared. (Guz, supra, 24 Cal.4th at p. 356.) Cavazos failed to rebut the District's motion by presenting evidence that the District's stated reason was untrue or a pretext, or that it acted with discriminatory animus, or some evidence of both, that created a triable issue of fact as to whether the District had discriminated against her. (Hicks v. KNTV Television, Inc. supra, 160 Cal.App.4th at p. 1003.) Her evidence created nothing more than speculation of the existence of a pretext or that the District's stated reason for its action was false. This was insufficient to defeat summary judgment. (Horn, supra, 72 Cal.App.4th at p. 807; Martin, supra, 29 Cal.App.4th at p. 1735.)

Because we find that Cavazos's evidentiary showing in opposition to the motion, taken "as a whole[,wa]s insufficient to permit a rational inference that the employer's actual motive was discriminatory" (Guz, supra, 24 Cal.4th at p. 361, fn. omitted), we conclude that the court properly granted summary adjudication of the discrimination claim against the District.

III. The Jury Verdict on the Harassment Claim

A. Background

As noted, the jury found in favor of defendants on Cavazos's claim under FEHA for harassment based upon a hostile work environment. It returned a special verdict which answered seven questions as to the claim against the District. It found that (1) Cavazos was "subjected to unwanted harassing conduct because she is a female"; (2) "the harassment [was] severe or pervasive"; (3) "a reasonable woman in [Cavazos's] circumstances [would] have considered the work environment to be hostile or abusive"; (4) "Cavazos consider[ed] the work environment to be hostile or abusive"; (5) the "District or its supervisors or agents kn[e]w or should have known of the harassing conduct"; (6) the "District or its supervisors or agents fail[ed] to take immediate and appropriate corrective action"; and (7) "the harassing conduct or the [District's] or its supervisors ['] or agents['] failure to take immediate and appropriate corrective action [was not] a substantial factor in causing harm to Tessa Cavazos." (Hereafter, the seventh question in the special verdict is referred to as Question Number 7 or the substantial factor question.) The jury found further that Blackerby did not "participate in, assist or encourage the harassing conduct."

In Cavazos's subsequent jnov motion, she argued that the jury's finding on the substantial factor question was (1) inconsistent with its previous six findings, (2) inconsistent with the evidence, and (3) based upon the jury's application of an erroneous legal standard. As to the third point, Cavazos asserted that the jury erroneously applied the definition of "outrageous conduct" for the intentional infliction of emotional distress claim to the harassment claim in deciding the substantial factor question, and erroneously reasoned that it was allowed to consider only comments of a sexual nature of which Cavazos was aware in deciding that question. In support of the jnov motion, Cavazos submitted the declaration of one juror, Linda Huisingh, and a declaration from Fabian. Huisingh, in her declaration, described the deliberations of the jury that led it to a "no" answer to Question Number 7. Fabian described her posttrial conversations with Huisingh and another juror, Geertje Bamford, concerning the jury's purported reasoning leading to its verdict.

Cavazos in her motion for new trial argued that the jury's actions and allegedly faulty reasoning constituted an irregularity in the proceedings, jury misconduct, and was against law. She asserted further that there was insufficient evidence to justify the verdict because, as to the jury's finding on the substantial factor question, there was no evidence presented that Cavazos's "harm was from anything other than the harassment or the District's failure to take immediate and appropriate corrective action." The motion was based upon the same Huisingh and Fabian declarations relied upon for the jnov motion.

Defendants opposed both the jnov and new trial motions and filed objections to the declarations submitted in connection with the motions. After a hearing, the court denied the new trial and jnov motions.

B. Contentions of Cavazos on Appeal

The contentions Cavazos makes in this appeal concerning the denial of her new trial and jnov motions are generally stated and poorly (if at all) developed. In the introduction to her opening brief, Cavazos summarizes the issues on appeal, as they relate to her harassment claim, as whether she is "entitled to a new trial on account of the conduct of the jury, the insufficiency of the evidence supporting the verdict for the District[,] and/or the inconsistency of the verdict." This summary notwithstanding, her brief contains no argument whatsoever addressing the claim that an "insufficiency of the evidence supporting the verdict for the District" warrants the granting of a new trial.

The section at the end of Cavazos's opening brief containing her argument that she is entitled to jnov "and/or" a new trial order consists of approximately eight pages. Under the six subheadings of this argument, Cavazos (1) states the general statutory grounds upon which she moved for a new trial and posits the standard of review applicable for the denial of new trial motions generally; (2) states the general statutory grounds upon which she moved for jnov and indicates the standard of review applicable for jnov motions generally; (3) states conclusorily, with no citation of authority and in apparent support of her position that her new trial motion should have been granted, that the jury's negative answer to the substantial factor question "amount[ed] to irregularity in the proceedings of the jury, misconduct of the jury, and/or the jury's application of an incorrect or erroneous legal basis not consistent with or not supported by the facts"; (4) under the subheading arguing that the jury's negative answer to the substantial factor question constituted prejudicial jury misconduct, discusses jury misconduct generally, quoting at length from Jones v. Sieve (1988) 203 Cal.App.3d 359; (5) under a subheading arguing that "the jury's application of an inappropriate causation standard was prejudicial to Cavazos" (initial capitalization omitted), includes a discussion of causation generally, quoting at length from Mitchell v. Gonzales (1991) 54 Cal.3d 1041; and (6) under a subheading asserting that "an inconsistent verdict is against the law and grounds for a new trial" (initial capitalization omitted), discusses generally that a jury's inconsistent verdict is " 'against the law' " and warrants the granting of a new trial.

"An appellant must provide an argument and legal authority to support his [or her] contentions. This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.' [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]" (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; see also EnPalm, LCC v. Teitler (2008) 162 Cal.App.4th 770, 775 [appellant's conclusory claim that trial court's ruling was not supported by the evidence, without "argument, discussion, analysis, or citation to the record," deemed waived].)

As seen from the above summary, Cavazos's incantation early in her brief that there was insufficient evidence to support the verdict is unsupported by any discussion, citation to the record, or legal argument. As such, it is an argument that we deem waived. (EnPalm, LCC v. Teitler, supra, 162 Cal.App.4th at p. 775; Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852; In re S. C. (2006) 138 Cal.App.4th 396, 410.)

C. Discussion

We glean from Cavazos's opening and reply briefs that her essential appellate claim--whether couched in the generality of an irregularity in the proceeding, jury misconduct, or a decision against law--is that the jury applied an incorrect standard in arriving at its negative answer to the substantial factor question in the special verdict. That argument is based upon the declarations Cavazos submitted below in support of her new trial and jnov motions. We address that contention below.

1. Applicable Law

A new trial may be granted by the trial court where there is, inter alia, "[i]rregularity in the proceedings of the . . . jury" (§ 657, subd. (1)), or "[m]isconduct of the jury" (§ 657, subd. (2)), where the error materially affects the rights of the moving party. "[A] trial judge is accorded a wide discretion in ruling on a motion for new trial and . . . the exercise of this discretion is given great deference on appeal. [Citations.]" (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.) A party moving for new trial on the ground of jury misconduct bears the burden of establishing such misconduct. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625.) The appellate court must examine the entire record to determine independently whether the misconduct, if it in fact occurred, prevented a fair trial to the moving party. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 818.) Although prejudice will be presumed where there has been jury misconduct, the presumption may be rebutted by evidence that no prejudice resulted. (Ibid.)

Jury misconduct, which, if found prejudicial, warrants the granting of a new trial motion, appears in several general forms. Such misconduct may occur from a showing of a juror's bias that was concealed from the parties and the court during voir dire (Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 185-186); a juror's inattentiveness during the presentation of evidence (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411 (Hasson)); improper communications by a juror with outsiders, such as a juror performing an experiment with a nonjuror and reporting the results during deliberations (Bell v. State of California (1998) 63 Cal.App.4th 919, 930-931); jurors' arriving at a verdict by means of chance or quotient (Chronakis v. Windsor (1993) 14 Cal.App.4th 1058, 1064; § 657, subd. (2)); or a juror's receipt of evidence outside of trial and communication of it to other jurors, such as a juror's performance of independent investigation (Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 682). "[I]rregularity in the proceedings of the jury" is a standard that has not been defined by the courts and is ambiguous due to its overlap with the alternative basis for new trial, jury misconduct; however, the irregularity ground is generally applied where there is an issue concerning a juror's competency or giving of false answers in voir dire. (See 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 27, pp. 610-611.)

A trial court engages in a three-step inquiry when a motion for new trial is brought on the basis of alleged jury misconduct. The court's inquiry is: (1) whether the affidavits in support of the motion are admissible under Evidence Code section 1150; (2) assuming such admissibility, whether the facts show misconduct; and (3) if misconduct is found, whether it was prejudicial. (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160.)

Evidence Code section 1150 describes the use of, and limitations placed upon, evidence to impeach a jury's verdict. The statute provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No 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 explained by the high court, "[W]ith narrow exceptions, evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict. The jury's impartiality may be challenged by evidence of 'statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly,' but '[n]o evidence is admissible to show the [actual] effect of such statement, conduct, condition, or event upon a juror . . . or concerning the mental processes by which [the verdict] was determined.' (Evid. Code, § 1150, subd. (a), italics added; see People v. Hutchinson (1969) 71 Cal.2d 342, 349-350 (Hutchinson).) Thus, where a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance, 'open to [corroboration by] sight, hearing, and the other senses' (Hutchinson, supra, 71 Cal.2d at p. 350), which suggests a likelihood that one or more members of the jury were influenced by improper bias." (In re Hamilton (1999) 20 Cal.4th 273, 294, fn. omitted (Hamilton).) This rule "serves a number of important policy goals: It excludes unreliable proof of jurors' thought processes and thereby preserves the stability of verdicts. It deters the harassment of jurors by losing counsel eager to discover defects in the jurors' attentive and deliberative mental processes. It reduces the risk of post-verdict jury tampering. Finally, it assures the privacy of jury deliberations by foreclosing intrusive inquiry into the sanctity of jurors' thought processes." (Hasson, supra, 32 Cal.3d at p. 414, fn. omitted.) And Justice Mosk explained the rationale for excluding evidence of jurors' thought processes: "To require trial courts to review declarations reciting purported thought processes of jurors is certain to produce a deleterious effect upon the finality of jury verdicts. I foresee the likelihood of all unsuccessful litigants, plaintiffs and defendants alike, canvassing jurors hereafter as a matter of policy, in the fond hope of discovering some forbidden element that may have inadvertently crept into jury discussions. Motions thereafter made on the basis of such discovery will seriously impede the expeditious administration of justice." (Krouse v. Graham (1977) 19 Cal.3d 59, 85 (conc. & dis. opn. of Mosk, J.).)

2. Discussion of claim of error

Cavazos's argument of jury misconduct or irregularity in the proceedings of the jury centers on the claim that the jury applied an improper causation standard in reaching its "no" answer to Question Number 7 of the special verdict. This claim in turn is derived from the two declarations in support of the motions for new trial and jnov submitted by Cavazos.

In the declaration of the juror, Huisingh, she stated that: (1) it was her feeling "that the jury was hamstrung into a [']no['] answer" to Question Number 7; (2) two jurors (one being the presiding juror) indicated during deliberations that the jury, in addressing Question Number 7, was permitted to "only consider the inappropriate statements of which Tessa Cavazos was aware prior to filing [the] action . . . and not the continuing investigations or other conduct"; (3) the presiding juror indicated during deliberations "that in order to constitute a 'substantial factor' [under Question Number 7], the inappropriate comments of which Tessa Cavazos was aware had to be outrageous and beyond that which a reasonable person is expected to endure"; (4) "[n]ine of the jurors found that since the inappropriate statements were not the only cause of the harm, but at least the continuing investigations were also a cause of the harm, the inappropriate statements were not a 'substantial factor' in causing harm to Tessa Cavazos"; (5) "[t]he jury believed that the harassing conduct was a factor in causing harm to Tessa Cavazos, but not a 'substantial' factor as the [p]residing [j]uror defined the term"; and (6) "[t]he jury further believed that the District's failure to take immediate and appropriate corrective action was a factor in causing harm to Tessa Cavazos."

Fabian declared that Bamford told her when she interviewed her after the trial that during deliberations: (1) Bamford "referred to the definition of 'outrageous conduct' as provided in [the jury instruction regarding intentional infliction of emotional distress] for a determination of what constituted 'substantial' in responding to [Question number 7]"; (2) "only the inappropriate statements of which Tessa Cavazos was aware prior to filing [the] action were considered in responding to [Question number 7]"; and (3) "the jury believed that the harassing conduct was a factor in causing harm to Tessa Cavazos, but not a 'substantial' factor as the jury defined the term."*fn18

A review of these two declarations leaves no doubt that the evidence proffered by Cavazos was inadmissible under Evidence Code section 1150, subdivision (a), and the authorities cited above. Huisingh purported to describe (1) what two jurors believed was the appropriate evidence that could be considered in answering Question Number 7; (2) the reasoning of nine members of the jury in reaching their conclusion on the substantial factor question; (3) the jury's collective belief regarding the impact of the harassing conduct upon Cavazos's alleged harm; and (4) the jury's collective belief regarding the impact of any alleged failure of the District to take immediate corrective action upon Cavazos's alleged harm. Putting aside whether Huisingh was competent to testify concerning the reasoning and thought processes of jurors other than herself, it is plain that her declaration is inadmissible evidence sought to prove the internal reasoning and thought processes of the jury. Likewise, Fabian's declaration is inadmissible--not only because it is clearly hearsay describing what Bamford told her about jury deliberations (see Evid. Code, § 1200, subd. (b))--but because it purports to describe the jury's reasoning and thought processes in answering question Number 7.

Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677 (Mesecher) is instructive. After a jury rendered a verdict in favor of the plaintiff on a battery claim against a deputy sheriff and the county employing him, the county made a motion for new trial alleging jury misconduct, submitting six juror declarations "reciting in narrative form how they and the other jurors reached their conclusions on the battery cause of action. . . . The [ declarant] jurors said that during deliberations they, and other jurors, defined 'battery' as contact which is intentional or unlawful or harmful or offensive. This definition conflicted with the court's instruction, which provided a battery 'is any intentional, unlawful and harmful or offensive contact by one person with the person of another.' (Italics added.)" (Id. at pp. 1682-1683.)

The appellate court held that the declarations impeaching the jury verdict were inadmissible, finding that "the alleged misconduct [described in the declarations] arose from the way in which the jury interpreted and applied the instructions." (Mesecher, supra, 9 Cal.App.4th at p. 1684.) In reasoning that is equally applicable to the claim of jury misconduct by Cavazos here, the court held: "While 'jurors may testify to "overt acts"--that is, such statements, conduct, conditions, or events as are "open to sight, hearing, and the other senses and thus subject to corroboration"--[they] may not testify to "the subjective reasoning processes of the individual juror . . ." [Citation.]' [Citations.] Likewise, evidence about a jury's 'subjective collective mental process purporting to show how the verdict was reached' is inadmissible to impeach a jury verdict. [Citation.] Thus, juror declarations are inadmissible where, as here, they 'at most suggest "deliberative error" in the jury's collective mental process--confusion, misunderstanding, and misinterpretation of the law.' [Citations. ¶] County attempts to avoid the impact of these rules by focusing on the fact that several of the jurors communicated their misunderstanding of the instructions during deliberations. However, '[t]he subjective quality of one juror's reasoning is not purged by the fact that another juror heard and remembers the verbalization of that reasoning.' To hold otherwise would destroy the rule [of Hutchinson] which clearly prohibits the upsetting of a jury verdict by assailing these subjective mental processes. It would also inhibit and restrict the free exchange of ideas during the jury's deliberations.' [Citation.]" (Id. at pp. 1683-1684, fn. omitted.)

The evidence upon which Cavazos bases her attack on the jury verdict is inadmissible under Evidence Code section 1150, subdivision (a). We therefore reject Cavazos's claim that her jnov or new trial motions should have been granted.


The judgment is affirmed.


Mihara, Acting P.J. McAdams, J.

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