Metropolitan News-Enterprise


Monday, February 8, 2021


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Juror Miscoduct Can’t Be Shown Based on Declaration by Attorney AS to What Juror Told Him— Appeals Court


By a MetNews Staff Writer


A new trial cannot be granted on the ground of juror misconduct based on a declaration by the attorney for the losing party as to what a member of the jury told him after the verdict as to improper discussions that took place, Div. Three of this district’s Court of Appeal said in a decision on Friday.

The unpublished opinion by Justice Anne H. Egerton affirms a judgment of Los Angeles Superior Court Judge Lia Martin.

Martin ruled that the unsuccessful plaintiff, Laila Bodozian, did not meet the seminal requirement of Code of Civil Procedure §657(2) which says that jury misconduct “may be proved by the affidavit of any one of the jurors.”

She found—and Div. Three agreed—that the declaration by Bodozian’s lawyer, Joseph Faccone Jr. of the Sherman Oaks firm of Tharpe & Howell, LLP, as to what Juror No. Six told him does not suffice. Egerton wrote:

“Plaintiff concedes her attorney’s declaration ‘is hearsay.’ Nevertheless, she argues the trial court was obliged to overlook this infirmity because, in plaintiff’s telling, “the hearsay rule was created to avoid lies in the courtroom” and her ‘attorney’s declaration [was] made under penalty of perjury.’ Plaintiff misunderstands the hearsay rule. The hearsay rule is not concerned with the credibility of the in-court witness—in this case, plaintiff’s attorney who proffered his sworn declaration. The hearsay rule concerns the credibility of the out-of-court declarant—in this case, the juror who told plaintiff’s attorney about discussions that supposedly occurred during deliberations….Because plaintiff did not offer a sworn declaration by the juror, from which the trial court could judge the juror’s credibility concerning the supposed discussions, the trial court properly denied the motion for new trial.”

The case is Bodozian v. Total Holdings USA, B285141.

Hollywood attorney Cynthia A. de Petris represented Bodozian on appeal. Hellar-Ann Hancock of the downtown Los Angeles firm of Lewis Brisbois Bisgaard & Smith acted for the defendants.


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