Judge Robert B. Broadbelt, Case Number: 18STCV09180, Date: 2023-12-06 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 18STCV09180, Date: 2023-12-06 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court rules on defendant Ocean Avenue, LLC’s evidentiary objections to the declaration of Allison Cervantes, filed on March 6, 2024, as follows:

The court rules on defendant Ocean Avenue, LLC’s evidentiary objections to the declaration of Stephen O’Kane, filed on March 6, 2024, as follows:

The court rules on defendant Ocean Avenue, LLC’s evidentiary objections to the declaration of Gloria Axume, filed on March 6, 2024, as follows:

Objection No. 5 is sustained as to the statement “expressed to other jurors and myself that our viewpoints would not be considered, because Ms. Cervantes did not deserve any money[.]” (Evid. Code, § 1150, subd. (a).) Objection No. 5 is overruled as to the other statements made in paragraph 5.

Objection No. 6 is sustained as to the statement “When I expressed I believed Ms. Cervantes, Juror 6 stopped me and said, ‘Oh yes, girl, when you have 23 million dollars in front of you, for sure you’re going to lie.’” (Evid. Code, § 1150, subd. (a).) Objection No. 6 is overruled as to the other statements made in paragraph 6.

Objection No. 9 is sustained as to the statement “Juror 9 explained to the jury, including me, that Ms. Cervantes was not harassed at work and was responding ‘No’ to Question No. 1 on the special verdict form because Ms. Cervantes did not report the harassment to her parents, which was not in evidence nor the standard called for in the jury instructions provided to us.” (Evid. Code, § 1150, subd. (a).) Objection No. 9 is overruled as to the other statements made in paragraph 9.

Objection No. 10 is sustained as to the statement “Based on this comment, Juror 7 expressed that he was responding ‘No’ to Question No. 1 on the special verdict form.” (Evid. Code, § 1150, subd. (a).) Objection No. 10 is overruled as to the other statements made in paragraph 10.

The court rules on defendant Ocean Avenue, LLC’s evidentiary objections to the declaration of Gregory Rzyan, filed on March 6, 2024, as follows:

The court rules on defendant Ocean Avenue, LLC’s evidentiary objections to the declaration of Griselda Rodriguez, filed on March 6, 2024, as follows:

The court rules on defendant Ocean Avenue, LLC’s evidentiary objections to the declaration of Raul Aguilar, filed on March 6, 2024, as follows:

The court rules on defendant Ocean Avenue, LLC’s evidentiary objections to the declaration of Bryan Kirsh, filed on March 6, 2024, as follows:

The court rules on defendant Ocean Avenue, LLC’s evidentiary objections to the declaration of Carney Shegerian, filed on March 6, 2024, as follows:

The court rules on defendant Ocean Avenue, LLC’s evidentiary objections to the declaration of Celeste Semmere, filed on March 6, 2024, as follows:

The court rules on plaintiff Allison Cervantes’s evidentiary objections, filed on March 21, 2024, as follows:

Plaintiff Allison Cervantes (“Plaintiff”) moves the court for an order setting aside the jury’s verdict rendered in this action on January 22, 2024, and granting a new trial against defendant Ocean Avenue LLC (“Defendant”). Plaintiff asserts that a new trial is required due to (1) an irregularity in the proceedings of the court after the court excluded evidence of sexually charged comments published by D’Jon Mornay (“Mornay”) on social media, and (2) juror misconduct. (Code Civ. Proc., § 657, subds. (1), (2), (7).)

1. Irregularity in the Proceedings of the Court (Code Civ. Proc., § 657, subds. (1), (7)

“A new trial may be granted where there is an ‘[i]rregularity in the proceedings.’ ([Code Civ. Proc.] § 657, subd. (1).) An ‘irregularity in the proceedings’ is a catchall phrase referring to any act that (1) violates the right of a party to a fair trial and (2) which a party ‘cannot fully present by exceptions taken during the process of the trial, and which must therefore appear by affidavits.’ [Citations.]” (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1229-1230.) A new trial may also be granted based on an “[e]rror in law, occurring at the trial and excepted to by the party making the application.” (Code Civ. Proc., § 657, subd. (7).)

The court finds that Plaintiff has not met her burden to show that the court erred as a matter of law and denied to Plaintiff her right to a fair trial by (1) finding that Mornay’s social media posts were not relevant and exercising its discretion to exclude such evidence because its probative value was substantially outweighed by the probability that its admission would necessitate undue consumption of time and create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury, pursuant to Evidence Code section 352, and (2) precluding Plaintiff from introducing Mornay’s Instagram posts at trial as prejudicial by sustaining Defendant’s objection thereto under Evidence Code section 352. (Pl. Appendix of Evid., Ex. 17, Dec. 6, 2023 Order, p. 7:8-15; Pl. Appendix of Evid., Ex. 4, p. 106:26-27; In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294 [“[b]y arbitrarily cutting off the presentation of evidence,” the judge rendered the trial fundamentally unfair, requiring reversal of trial].)

Although the court notes that Plaintiff has cited cases in which federal courts have determined evidence of other acts of harassment “to be extremely probative” or relevant to discriminatory discharge claims, the court (1) is not bound by those decisions, and (2) finds that Plaintiff has not shown that, under such authority, the court abused its discretion by excluding from evidence the social media posts that Plaintiff sought to introduce under Evidence Code section 352. (Hurley v. Atlantic City Police Dept. (3rd Cir. 1999) 174 F.3d 95, 110-111 [“Evidence of other acts of harassment is extremely probative as to whether the harassment was sexually discriminatory and whether the ACPD knew or should have known that sexual harassment was occurring”]; Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1480 [“evidence of an employer’s sexual harassment of female employees other than the plaintiff and evidence of the employer’s disparaging remarks about women in general were relevant to a discriminatory discharge claim”]; Evid. Code, § 352 [court may exclude evidence “in its discretion” if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury] [emphasis added].)

Thus, the court finds that Plaintiff has not established that there was an irregularity in the court proceedings or an error of law that occurred at trial that warrants granting a new trial. (Code Civ. Proc., § 657, subds. (1), (7).)

“‘A verdict may be vacated, in whole or in part, on a motion for a new trial because of juror misconduct that materially affected the substantial rights of a party. (Code Civ. Proc., § 657, subd. (2).) A party moving for a new trial on the ground of juror misconduct must establish both that misconduct occurred and that the misconduct was prejudicial.’ [Citation.]” (Stokes v. Muschinske (2019) 34 Cal.App.5th 45, 52.) “[A] court generally undertakes a three-step inquiry in ruling on a new trial motion based on juror misconduct. First, the court determines whether affidavits supporting the motion are admissible. Second, the court determines whether the facts establish misconduct. Third, the court determines whether any misconduct resulted in prejudice.” (Ibid.)

“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).) “‘ “This statute distinguishes ‘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.’ ” ’ [Citation.] Juror’s statements ‘ “must be admitted with caution,” because “[s]tatements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors.” [Citation.] But statements made by jurors during deliberations are admissible under Evidence Code section 1150 when “the very making of the statement sought to be admitted would itself constitute misconduct.” ’ [Citation.]” (People v. Flores (2021) 70 Cal.App.5th 100, 108.)

The court finds that the jurors’ statements set forth in the declarations of Gloria Axume (“Axume”) and Stephen O’Kane (“O’Kane”), except as to the statements to which objections have been sustained above, are admissible. Although Axume and O’Kane have asserted that certain jurors made statements about having “made up [their] mind[s]” and other similar comments, the court finds that those are admissible as statements of bias (and therefore not hearsay), are “of such a character as is likely to have influenced the verdict improperly[,]” and do not concern the mental processes of those jurors (and therefore are not made inadmissible under Evidence Code section 1150). (Axume Decl., ¶¶ 4-5; O’Kane Decl., ¶ 4; Evid. Code, § 1150, subd. (a); Flores, supra, 70 Cal.App.5th at p. 108; Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 790 [finding that juror’s statement “‘I made up my mind during trial’ was a ‘statement of bias’”], 793 [the comments, because they “were circumstantial evidence of her bias[,]” were “not hearsay”].)

The court did not consider the “Declaration of Gloria Axume” submitted in support of Plaintiff’s reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1537 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers”].)

“[A] statement of bias is misconduct because bias is misconduct.” (Grobeson, supra, 190 Cal.App.4th at p. 788; People v. Allen and Johnson (2011) 53 Cal.4th 60, 70 (“Allen”) [“For a juror to decide a case before it is submitted is misconduct”].) Moreover, “[j]urors are not permitted to inject extraneous evidence, standards of care, or defense theories into deliberations.” (Nodal v. CalWest Rain, Inc. (2019) 37 Cal.App.5th 607, 611.) “Juror bias does not require that a juror bear animosity towards the defendant [or other party]. Rather, juror bias exists if there is a substantial likelihood that a juror’s verdict was based on an improper outside influence, rather than on the evidence and instructions presented at trial, and the nature of the influence was detrimental to the [party].” (People v. Cissna (2010) 182 Cal.App.4th 1105, 1116.)

Plaintiff has submitted the declarations of jurors Axume and O’Kane to establish juror misconduct.

First, Axume and O’Kane state that juror number five, Natalie Berggren (“Berggren”), repeatedly stated “that she already made up her mind, knew what side she was on, that it was obvious, suggested it was for the Defendant, and repeatedly tried to get us to tell her what side [the other jurors] were on.” (Axume Decl., ¶ 4; O’Kane Decl., ¶ 4.) In support of its opposition, Defendant has submitted the declaration of Berggren, in which she denies that she made those statements. (Berggren Decl., ¶ 4 [“I never told anybody, at lunch or otherwise, that I already made up my mind about the case prior to deliberations or that I knew what side I was on prior to deliberations. I did not speak about the case with other jurors outside of deliberations and I did not ask other jurors what ‘side’ they were on outside of deliberations”].) The court finds Berggren’s declaration to be credible, and finds that Axume and O’Kane’s statements, on this point, are not credible. (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 372 [“‘[I]t is the trial court that must assess the credibility of affiants or declarants, and the trial court is entitled to believe one over the other. [Citations.]’”].) Thus, the court finds that this evidence does not establish juror misconduct.

Second, Axume states that, during the deliberation process, Lindsey Bogris (“Bogris”) (juror number three), Berggren, Xian Chapman (“Chapman”) (juror number six), and Heather Ballard (“Ballard”) (juror number 10) “expressed a fixed conclusion at the beginning of deliberations, expressed to other jurors and [Axume] that [the jurors] should not deliberate,” interrupted jurors when they attempted to speak, expressed several times that they did not want to find in favor of Plaintiff on any of her claims regardless of the evidence presented, and stated that they did not care about the evidence. (Axume Decl., ¶¶ 5-6.) Berggren and Chapman have refuted this evidence in their declarations, each stating that she did not “express a ‘fixed conclusion[,]’” state that she wanted to find against Plaintiff regardless of the evidence, or otherwise state or indicate that she would not consider the evidence presented. (Berggren Decl., ¶¶ 4, 6; Chapman Decl., ¶¶ 4-5.) The court finds Berggren and Chapman’s declarations are credible and show that they did not establish a fixed conclusion (i.e., pre-judged the case) prior to deliberations. The court further finds, in light of Berggren and Chapman’s statements and based on the wording of the allegations in Axume’s declaration, that Axume’s testimony regarding Bogris, Berggren, Chapman, and Ballard are not credible. Thus, the court finds that this evidence does not establish juror misconduct.

Third, Axume states that, during the deliberation process, “it was very difficult to express [her] opinions[,]” and that Bogris, Berggren, Chapman, and Ballard often interrupted her or other jurors. (Axume Decl., ¶¶ 6-8.) Berggren has refuted this in her declaration, stating that, based on her observations, “all jurors participated in deliberations, and none were prohibited or discouraged from speaking.” (Berggren Decl., ¶ 5.) The court finds Berggren to be a credible witness as to this point, and finds, based on Berggren’s statement and the wording of the allegations in Axume’s declaration, that Axume’s testimony is not credible on this point. Thus, the court finds that this evidence does not establish juror misconduct based on a refusal of certain jurors to deliberate. (People v. Cleveland (2001) 25 Cal.4th 466, 485 [“A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process” but “[t]he circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate”].)

Fourth, Axume states that Michael Mendoza (“Mendoza”), juror one, did not speak much, and when he attempted to show evidence from one of the exhibits, Bogris, Berggren, and Ballard “said ‘No.’” (Axume Decl., ¶ 8.) To the extent that Plaintiff contends this shows that those jurors interrupted Mendoza, the court finds that such an assertion has been rebutted, as set forth above, by Berggren’s testimony that all jurors participated in deliberations and that no juror was prohibited or discouraged from speaking. (Berggren Decl., ¶ 5; Cleveland, supra, 25 Cal.4^th at p. 485.)

Fifth, Axume states that, during deliberations, Kelvin Lawson (“Lawson”), juror number nine, “interjected with comments about his personal experience with family members being harassed at work by an employer and that if his daughter or wife were harassed at work, they would tell [Lawson] right away.” (Axume Decl., ¶ 9.) Defendant did not submit a declaration from Lawson refuting that he made this comment. However, the court finds that this evidence does not establish misconduct based on bias or disregard of the court’s instructions. Instead, it appears that Lawson “appli[ed] . . . his life experience,” in this context, in order to evaluate Plaintiff’s credibility. (Allen, supra, 53 Cal.4th at p. 78 [juror’s “positive opinion about the reliability of Hispanics in the workplace did not involve specialized information from an outside source. It was an application of his life experience, in the specific context of timecards and the workplace, that led him to conclude [the party] was not telling the truth about the shootings”].) Thus, the court finds that this evidence is insufficient to establish juror misconduct.

Sixth, Axume states that Lawson “further expressed, during the break and immediately in the deliberations that he needed to finish the case because he had a flight scheduled for the next day, in the afternoon, and he needed to get the case done.” (Axume Decl., ¶ 9.) Defendant did not submit evidence (e.g., Lawson’s declaration) to refute that he made such a statement.

Plaintiff contends that this statement shows that Lawson “expressed a desire not to engage in deliberations[.]” (Mot., p. 13:12.) The court disagrees. Instead, it shows only that Lawson was hoping that the trial would be finished and does not suggest that he did not want to, or did not, engage in deliberations. (People v. Henderson (2022) 78 Cal.App.5th 530, 553, 562-563 [juror’s statement that he was “‘looking forward to it being over’” reflected that the juror “was looking forward to his jury duty being over, a sentiment that does not strike [the court] as unusual for jurors in a lengthy trial,” and “did not signal that the juror could not perform his duty or was biased”] [emphasis in original].) Axume did not, for example, state that Lawson refused to deliberate in order to ensure that the case was decided so that he could leave, or that he committed any other conduct establishing that he chose not to deliberate with the other jurors. (Axume Decl., ¶ 9.) Thus, the court finds that Lawson’s statement that “he needed to finish the case because he had a flight scheduled for the next day” does not establish that Lawson refused to deliberate and therefore does not establish juror misconduct. (Henderson, supra, 78 Cal.App.5th at pp. 562-563.)

Seventh, Axume states that Mark Cuglietta (“Cuglietta”), juror number seven, “appeared to have been consuming alcoholic beverages immediately prior to deliberations based on his tone, manner of speech, demeanor, and smell.” (Axume Decl., ¶ 10.) Defendant has submitted Cuglietta’s declaration, in which Cuglietta states that (1) he “did not consume alcoholic beverages during trial hours, nor did [he] consume alcoholic beverages on any of [their] lunch or afternoon breaks” or “immediately prior to deliberations,” and (2) he “was not intoxicated during deliberations.” (Cuglietta Decl., ¶ 3.) The court finds that Cuglietta’s testimony is credible and that Axume’s declaration is not credible on that issue. The court therefore finds that Plaintiff has not shown that Cuglietta engaged in juror misconduct since she has not submitted credible evidence showing that Cuglietta was intoxicated during deliberations.[1]

Finally, Axume states that, during deliberations, Cuglietta “explained to the jury, including [Axume], that [Plaintiff] was not harassed at work because he tells his male employees at work that they should not be staring at women for more than 4 minutes[.]” (Axume Decl., ¶ 10.) Cuglietta did not deny, in his declaration, that he made this statement to the jurors during deliberations. Plaintiff contends that this statement establishes juror misconduct because it shows (1) that Cuglietta relied on his personal experiences, rather than the evidence presented at trial and the instructions of the court, in rendering his verdict, and (2) bias and partiality on the part of Cuglietta. The court agrees.

As a threshold matter, the court finds it significant that (1) Defendant submitted a declaration from Cuglietta in support of its opposition, and (2) Cuglietta, although having the opportunity to deny that he made such a statement, did not do so. (Cuglietta Decl., ¶¶ 1-4.) Moreover, the court finds Axume’s testimony on this point to be credible. Thus, the court has determined that Cuglietta did make the statement that he believed that Plaintiff was not harassed because “he tells his male employees at work that they should not be staring at women for more than 4 minutes[.]” (Axume Decl., ¶ 10.) Defendant has not argued that this statement does not show misconduct, instead arguing that Axume’s declaration is inadmissible. (Opp., p. 17:6-18.)

As set forth above, jurors are not permitted to inject their own standards of care or theories into deliberations. (Nodal, supra, 37 Cal.App.5th at p. 611; Smith v. Covell (1980) 100 Cal.App.3d 947, 952 [juror informing other jurors about his back pain in personal injury case was impermissible and constituted misconduct].) Moreover, the court instructed the jury members that they shall not make any statements or provide any information to other jurors based on unique personal experiences they may have had, and further instructed that what the jurors “may know or have learned through [their] training or experience is not a part of the evidence received in this case.” (Pl. Appendix of Evid., Ex. 5, Reporter’s Transcript, p. 38:25-39:4.)

Here, because Plaintiff has submitted evidence establishing that Cuglietta stated that Plaintiff was not harassed because he has told his male employees not to stare at a woman for more than four minutes, the court finds that Plaintiff has shown that (1) Cuglietta was improperly relying on and informing the other jurors about external information regarding what constitutes harassment, and therefore likely disregarded the court’s instructions in evaluating the evidence, (2) Cuglietta was biased in his view regarding what constitutes harassment, and (3) it is likely that Cuglietta prejudged this case based on his belief that harassment cannot occur if a woman has not been stared at for more than four minutes. (Axume Decl., ¶ 10; People v. Nesler (1997) 16 Cal.4th 561, 587 [juror’s interjection of extraneous evidence suggested that she was unable to put aside the information she acquired outside of court, “thus indicating a substantial likelihood of actual bias on her part”]; Smith, supra, 100 Cal.App.3d at p. 935 [disclosing outside information based on personal experiences “may be cited both as evidence of a concealed bias and an objective fact likely to have improperly influenced the jury’s verdict”].) The court therefore finds that Plaintiff has shown that Cuglietta engaged in juror misconduct.

Thus, for the reasons set forth above, the court finds that (1) the statements made in Axume and O’Kane’s declarations regarding jurors Bogris, Berggren, Chapman, Lawson, and Ballard (juror numbers 3, 5, 6, 9, and 10, respectively) do not establish juror misconduct, but (2) the statement made by Cuglietta (juror number 7) that Plaintiff “was not harassed at work because [Cuglietta] tells his male employees at work that they should not be staring at women for more than 4 minutes” establishes juror misconduct. (Axume Decl., ¶ 10.)

“Jury misconduct ‘ “creates a presumption of prejudice that may be rebutted by a showing that no prejudice actually occurred.” ’ [Citations.] The presumption can be rebutted ‘by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm resulting from the misconduct.’ [Citation.]” (Flores, supra, 70 Cal.App.5th at p. 112.)

As set forth above, the court has found that Plaintiff has shown the existence of juror misconduct. Thus, there is a presumption that Plaintiff was prejudiced. (Flores, supra, 70 Cal.App.5th at p. 112.) In its opposition, Defendant has not made an affirmative evidentiary showing that prejudice does not exist, and did not argue that, in reviewing the entire record, the court should find that there is no reasonable probability of prejudice. (Opp., p. 17:19-26 [arguing only that Plaintiff cannot establish misconduct].) The court therefore finds that Defendant did not meet its burden to rebut the presumption of prejudice.

Moreover, the court also notes that the jury found against Plaintiff on her sexual harassment, discrimination, and retaliation claims by a nine-to-three vote. (Pl. Appendix of Evidence, Ex. 6, Jan. 22, 2024 Reporter’s Transcript, pp. 66:5-69:10.) Thus, Cuglietta’s bias and prejudgment of the case was prejudicial to Plaintiff. (Grobeson, supra, 190 Cal.App.4th at p. 792 [stating that “the trial court found that the loss of one biased juror on votes of 9 to 3 actually prejudiced” the plaintiff and therefore finding that the defendant’s argument that the “statements were of no moment [was] therefore mistaken”].)

For the reasons set forth above, the court finds that Plaintiff has met her burden to show the existence of juror misconduct that resulted in prejudice. The court therefore grants Plaintiff’s motion for a new trial. (Code Civ. Proc., § 657, subd. (2).)

The court grants plaintiff Allison Cervantes’s motion for new trial. (Code Civ. Proc., § 657, subd. (2).)

The court orders that the Judgment by Court, filed on January 23, 2024, is vacated.

The court sets a Trial Setting Conference on the new trial for hearing on June 21, 2024, at 8:30 a.m., in Department 53. The court orders counsel for the parties to meet and confer, no later than nine court days before the Trial Setting Conference, to discuss and try to reach agreement on any issues concerning the new trial granted by this order. The court orders that each party may file and serve, no later than five court days before the Trial Setting Conference, a Trial Setting Conference brief (not to exceed three pages in length) which addresses the status of this case and any issues they wish to discuss at the Trial Setting Conference.

[1] Moreover, even if Cuglietta had not rebutted this assertion, the court would find that Axume’s observation that Cuglietta was intoxicated would not, standing alone, be sufficient to establish misconduct since (1) “[t]he decisions [considering claims of juror intoxication] have generally rejected claims of misconduct if satisfied that the consumption of liquor was not likely to have affected the indulgent jurors’ capacity to competently perform their duties[,]” and (2) Plaintiff did not present evidence establishing that Cuglietta consumed enough alcohol so as to render him incapable of performing his duties. (Axume Decl., ¶ 10; Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 412.)

allison cervantes ; Plaintiff, vs. ocean avenue llc d/b/a fairmont miramar hotels , et al.; Defendants.	Case No.:	18STCV09180

	Hearing Date:	April 5, 2024

	Time:	10:00 a.m.

	[Tentative] Order RE: plaintiff’s motion for new trial