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Shanks v. Department of Transportation

California Court of Appeals, Second District, Sixth Division

March 9, 2017

SAMUEL SHANKS et al., Plaintiffs and Respondents,

          Superior Court of Ventura County, No. 56-2012-00423044-CU-PO-VTA, Kevin G. DeNoce, Judge.

Page 544

[Copyrighted Material Omitted]

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         Jeanne E. Scherer, Chief Counsel, Jerald M. Montoya, Deputy Chief Counsel, and Mark Berkebile for Defendant and Appellant.

         The Homampour Law Firm, Arash Homampour; The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiffs and Respondents.

         Opinion by Perren, J., with Gilbert, P. J., and Tangeman, J., concurring.


          [215 Cal.Rptr.3d 361] PERREN, J.

          Gary Lynn Shanks died in a head-on collision with another motorcycle on a state highway. In the ensuing wrongful death action, a jury determined that the People of the State of California (State) and the operator of the other motorcycle [215 Cal.Rptr.3d 362] were at fault. The jury found the State liable for a dangerous condition on the highway and awarded Shanks's family a total of $12.69 million in damages. After just 90 minutes of deliberation, however, Juror No. 2 reported that Juror No. 7 was not deliberating. The trial court confirmed this by questioning that juror and a second juror who had " raised concerns" about Juror No. 7. The court thereafter excused Juror No. 7 and

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seated an alternate. It made no inquiry of the accused juror or of any of the remaining jurors, including the foreperson.

         We conclude the record does not show as a " demonstrable reality" that Juror No. 7 failed to deliberate or was otherwise unable to perform her duty. ( People v. Cleveland (2001) 25 Cal.4th 466, 474-475 [106 Cal.Rptr.2d 313, 21 P.3d 1225] ( Cleveland ); Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1686 [26 Cal.Rptr.3d 638] ( Boeken ).) The trial court consequently abused its discretion by discharging her. This error was prejudicial in that the jury's apportionment of liability between the State and the other defendant was by a nine-to-three vote, and Juror No. 7 had expressed her inclination to vote for the State. ( People v. Hamilton (1963) 60 Cal.2d 105, 128 [32 Cal.Rptr. 4');">32 Cal.Rptr. 4, 383 P.2d 412] ( Hamilton ), overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 648-649 [36 Cal.Rptr. 201');">36 Cal.Rptr. 201, 388 P.2d 33], and disapproved on other grounds in People v. Daniels (1991) 52 Cal.3d 815, 865-866 [277 Cal.Rptr. 122');">277 Cal.Rptr. 122, 802 P.2d 906].) Accordingly, we remand the matter to the trial court for a retrial of the apportionment issue. In all other respects, we affirm.


         State Highway 33 is a two-lane, north-south road, with a posted speed limit of 55 miles per hour. The accident involving Shanks and the other motorcyclist, Orlando Castellon, occurred on a sharp, blind curve. The State had installed a warning sign for northbound motorists informing them to reduce speed to 25 miles per hour to safely negotiate the curve, but there was no such sign for southbound motorists. As a result, Castellon, who was traveling southbound, failed to reduce his speed and lost control of his motorcycle as he rounded the curve. He crossed over the center line and struck Shanks head on. Shanks died at the scene.

         Shanks is survived by his wife, Patricia, an adult son, Samuel Shanks, and two minor children. His wife and adult son (collectively respondents) filed this wrongful death action individually and on behalf of the minor children.

         After presenting his closing argument, respondents' counsel, Arash Homampour, moved to discharge Juror No. 7 for sleeping as he argued. The State's counsel, Timothy Day, did not believe the juror was sleeping. Day thought that " [Juror No. 7] looked annoyed and frustrated at the arguments being made by [respondents'] counsel, and she rolled her eyes, and she went like this a few times, closing her eyes with her hands on her eyebrows."

         Homampour's cocounsel, Farzad Yassini, also told the trial court that Juror No. 7's eyes were closed during respondents' opening and rebuttal arguments

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and that " [i]t looked to [him] like she was sleeping." In addition, the court reporter sent the trial judge a note via the " realtime" system stating that the juror was sleeping.

         The trial court, which had an obstructed view of the juror, could not make a finding that Juror No. 7 was actually sleeping, as opposed to listening to the argument with her eyes closed. Consequently, the court declined to discharge the juror.

          [215 Cal.Rptr.3d 363] The jury deliberated for about 90 minutes before being excused for the day. The following day Juror No. 2 called the trial court to inform it that one of the other jurors was not adequately deliberating. After discussing the issue with the parties, the court determined there was a sufficient basis to inquire into Juror No. 2's complaint about the other juror. Before making its inquiry, the court stated that it planned on asking questions similar to those set forth in Cleveland, supra, 25 Cal.4th 466, and then specifically outlined the " leading" questions it planned to ask. The State's counsel said he thought the court should delay the inquiry to allow for more deliberations but did not object to the questions or suggest different ones.

         Prior to questioning Juror No. 2, the trial court told the juror that it was " absolutely critical" that " [w]e can't know how any jurors are voting." The court explained to the juror that it did not want her to disclose " which way you are leaning" or " how any other jurors are leaning." The court stated, " I'm going to ask you a lot of leading questions, yes-or-no questions to try and steer clear of you telling me anything about what you or other members of the jury think about the case."

         In response to the trial court's questions, Juror No. 2 identified Juror No. 7 as the juror who had " expressed a fixed conclusion [about the outcome of the case] at the beginning of deliberations." When the court asked whether Juror No. 7 had listened to the views of other jurors, Juror No. 2 responded, " Can I say not well?" The court inquired, " And by 'not well,' do you mean in terms of her giving feedback?" The juror said, " Yes. Just very adamant." The juror also identified Juror No. 1 as another juror who had " raised concerns" about Juror No. 7.

         After conferring with counsel, the trial court asked Juror No. 2 if it was her opinion that Juror No. 7 had prejudged the case " at the outset of jury deliberations." The juror responded, " Yes."

         Respondents' counsel requested that the trial court bring in Juror No. 1. The court asked if the " defense [was] opposed," and the State's counsel responded, " No," although he thought it would be " better" to bring in the

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foreperson to " tell us what his or her understanding of the interactions are." The court indicated it may do that, but decided to " speak with Juror No. 1 ...

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