Metropolitan News-Enterprise


Friday, March 10, 2017


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C.A. Throws Out $12 Million Judgment Against Caltrans

Panel Says Judge Abused Discretion by Discharging Juror Accused of Failing to Deliberate




The Court of Appeal for this district yesterday reversed a $12.9 million judgment against the California Department of Transportation, saying a Ventura Superior Court judge erred in discharging a juror after two others on the panel accused her of failing to deliberate.

Div. Six said Judge Kevin DeNoce abused his discretion by tossing the woman, identified only as Juror No. 7, off the jury without further inquiring of her or asking other jurors whether they shared the observations of the two complaining panelists. The error was prejudicial, the appellate panel found, because the jury voted 9-3 against Caltrans on the critical issue of how to apportion fault, and Juror No. 7 said she was leaning toward Caltrans’s position before she was discharged.

The jury was trying a suit brought by the family of Gary Lynn Shanks, who was killed when the motorcycle he was riding collided with another motorcycle on a sharp, blind curve on State Highway 33. Caltrans had installed a sign warning northbound motorists to reduce their speed to 25 mph—the posted limit is 55—before the curve, but no such sign warned those going south on the two-lane road.

Shanks, traveling northbound, was struck head-on after Orlando Castellon, going southbound, failed to slow down at the curve and lost control, crossing the center line.

Motion to Discharge

Following closing arguments, plaintiffs’ counsel Arash Homampour moved to discharge Juror No. 7 for sleeping during the argument. Caltrans counsel Timothy Day disputed the claim the juror was sleeping, saying she appeared to be “frustrated and annoyed” by plaintiffs’ argument and closed her eyes in a gesture of displeasure.

The court reporter sent the judge a note suggesting the juror was sleeping. DeNoce said he could not tell from his vantage point whether the juror was sleeping or not, and declined to discharge her.

Jurors deliberated for about 90 minutes before being excused for the day. The following day, Juror No. 2 complained that Juror No. 7 was refusing to deliberate, and suggested that Juror No. 1 felt the same way, which Juror No. 1 confirmed.

In response to questions from the judge, Juror No. 2 said Juror No. 7 had made up her mind about the case, had not really listened to the views of other jurors, and was “very adamant” about not listening.

Prior to the juror’s discharge, counsel for Caltrans suggested that inquiry be made of the foreperson. The judge, however, declined to question any additional jurors, saying that the previous allegations regarding sleeping, plus the comments of the two jurors, and his own observations, supported discharge.

He added:

“And for the benefit of any higher court, you know, I would hope a higher court would be mindful of the fact that, sure, we could march in every other juror, including the foreperson and conduct an autopsy on this case and, you know, mistry it, and interfere with jury deliberations in a way that I do not think would comport with justice.”

The Verdict

Juror No. 7 was replaced by an alternate, and a verdict was returned later in the day. The jury found unanimously for the plaintiffs against Caltrans on the issues of dangerous condition, notice, and causation; found unanimously that Castellon was negligent; and found by a vote of 9-3 that the collision was 90 percent Caltrans’s fault and 10 percent Castellon’s.

The jury was unanimous in fixing the damages of Shanks’s widow at $6 million, and found by 11-1 that the decedent’s children had suffered damages of $8.1 million, giving the plaintiffs a net verdict of $12.69 million against Caltrans.

In moving for a new trial, Caltrans offered a declaration in which Juror No. 7 insisted that she “never expressed an unwillingness to deliberate,” that the two complaining jurors had supported the plaintiffs from the beginning of deliberations, and that the pair had been “carpooling to the trial every day, and had become very friendly.” She said she was “appalled” she had been dismissed for having “opposing views.”

DeNoce denied the new trial motion, but Justice Steven Perren, writing for the Court of Appeal, said it should have been granted.

Further Inquiry

The apparent closeness between Jurors No. 1 and No. 2, and their apparent shared attitude toward Juror No. 7, should have prompted the trial judge to make further inquiry before discharging the juror, Perren said.

“We are not unsympathetic to the quandary a trial judge faces when confronted with complaints of juror misconduct,” the justice wrote. “He or she must investigate the possibility of misconduct but not overstep and invade the sanctity of the jury’s deliberations. But jurors may mistakenly conclude that a juror’s disagreement with the majority constitutes an inability or refusal to deliberate.”

To avoid mistakenly discharging a juror in that situation, the justice went on to say, the trial judge must conduct a sufficient inquiry, consisting, at a minimum, of interviewing the complained-about juror, the foreperson, and at least some of the jurors not involved in the complaints. “Only after hearing those views would the court be able to make an informed decision regarding whether the complaints from Juror Nos. 1 and 2 were founded on facts rather than on speculation,” Perren concluded.


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