........................................................................Chapter 6: Trial

...........................................................A. Obtaining Trial By Jury
1. Right to Trial By Jury
p. 631 (a) Equity First: If the trial court chooses to have the jury hear the legal issues first, the court may not disregard the jury's verdict when fashioning equitable relief founded on the same operative facts as the verdict. However, if there is a matter within the exclusive province of the trial judge, such as the defense of equitable estoppel, the jury's decision does not divest the judge of the duty to assess any issues left undecided; the judge has an independent duty to determine the applicability of the equitable estoppel defense. Hoopes v. Dolan, 168 Cal.App.4th 146, 85 Cal.Rptr.3d 337 (2008). For short articles discussing Hoopes and whether the equity first rule is a better practice than the reverse, see Michael Paul Thomas, Do Process?, L.A. Daily J. 7 (Jan. 14, 2009); and James C. Martin & Margie Esrada-Schoori, Jumping Through ‘Hoopes,' L.A. Daily J. 7 (Dec. 19, 2008).

p. 632(b) Gist of the Action: The "gist" test was applied to find that an action to stop a "prostitution nuisance" at a motel was equitable in nature. People v. Bhakta, 162 Cal.App.4th 973, 76 Cal.Rptr.3d 421 (2008). The Court of Appeal explained how to apply the "gist" test to a case seeking quantum meruit; it held that because quantum meruit was recognized as a form of the common law writ of assumpsit long before 1850, the parties to a quantum meruit action had a right to a jury trial. Jogani v. Superior Court, 165 Cal.App.4th 901, 81 Cal.Rptr.3d 503 (2008).
.....Another example of California's examination of the gist of an action is its treatment of interpleader. Even if the nature of the underlying controversy is legal, an action in interpleader is considered equitable, for which a trial by jury is unavailable in state court. Shopoff & Cavallo LLP v. Hyon, 167 Cal.App.4th 1489, 85 Cal.Rptr.3d 268 (2008). The federal practice under the Seventh Amendment is quite different: "[A]lthough the question whether to order interpleader is triable to the court, issues between the stakeholder and the claimants should be tried to a jury unless, absent interpleader, they are equitable in nature." Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 7 Federal Practice & Procedure: Civil 3d § 1718 (2008).

* pp. 634-635 (f) Civil Penalties: Two Court of Appeal panels agree that a claim for civil penalties is entirely a matter for the trial court rather than a jury. Mendoza v. Ruesga, 169 Cal.App.4th 270, 86 Cal.Rptr.3d 610 (2008); DiPirro v. Bondo Corp., 153 Cal.App.4th 150, 62 Cal.Rptr.3d 722 (2007). Another Court of Appeal panel used a careful examination of precedent under the historical test to conclude that a taxpayer had a right to a jury in a tax refund action, but no right to jury in a tax collection or penalty action initiated by the state. Franchise Tax Board v. Superior Court, 177 Cal.App.4th 36, 99 Cal.Rptr.3d 73 (2009).

p. 647, (f) Contractual Waiver: The Court of Appeal addressed whether equitable servitudes created by the Covenants, Conditions and Restrictions of common interest communities could lawfully provide that disputes would be settled by reference to a judicial referee pursuant to CCP § 638 (see Chapter 5, p. 515). If so, this would have the effect of waiving the right to trial by jury for all present and subsequent homeowners subject to the CC&R's. In Treo @ Kettner Homeowners Association v. Superior Court, 166 Cal.App.4th 1055, 83 Cal.Rptr.3d 318 (2008), the court applied Grafton Partners in concluding that when the Legislature provided in CCP § 638 that the right to trial by jury could be waived by "written contract," it did not intend to include the equitable servitudes created by the CC & R's.
.....Grafton Partners is criticized in Comment, Nothing is Sacred: Why Georgia and California Cannot Bar Contractual Jury Waivers in Federal Court, 12 Chap.L.Rev. 127 (2008).

3. Jury Panel
p. 666: The U.S. Supreme Court has re-affirmed that:

........The right to exercise peremptory challenges in state court is determined by state law. This Court has
........"long recognized" that "peremptory challenges are not of federal constitutional dimension." States may .......withhold peremptory challenges "altogether without impairing the constitutional guarantee of an impartial
........jury and a fair trial."

.....Rivera v. Illinois, 556 U.S. ___, 129 S.Ct. 1446, 1450, 173 L.Ed.2d 320 (2009).

p. 675, Note 4: The California Supreme Court has acknowledged the difference in the state and federal standards in People v. Hawthorne, 46 Cal.4th 67, 92 Cal.Rptr.3d 330, 205 P.3d 245 (2009). The difference in standards proved to matter to Mr. Johnson. After the U.S. Supreme Court determined in Johnson that California's version of the first step of the Batson test was too stringent, the prosecutor's reasons for striking all three African-American members of the jury venire were reviewed for the first time in a hearing in 2008. The Superior Court judge determined that the prosecutor's proffered reasons were inadequate to explain why he struck one of the three from the jury venire in the 1998 trial. The judge ordered a new trial for Johnson, who had been serving a 15-year to life sentence after having been convicted for the death of a 19 month old whom he had denied intending to injure. Bob Egelko, Black Murder Defendant Convicted by All-White Jury Gets New Trial, San Francisco Chronicle at B1 (March 5, 2008). Johnson then pled guilty to voluntary manslaughter. San Francisco Chronicle at B1 (May 8, 2008).

p. 677, Note 5: People v. Gonzales, 165 Cal.App.4th 620, 81 Cal.Rptr.3d 205 (2008), discusses the question of whether "Spanish-speaking" can be a race-neutral justification for exercising a peremptory challenge. Basing challenges to prospective jurors on the basis of specific responses to questions such as whether the person would be able to utilize only the official translation of testimony given in Spanish or reasonable inferences therefrom can be acceptable. However, "in the absence of any other evidence, this aspect of the prosecutor's stated basis expressed only ‘stereotypical assumptions about Latinos or bilinguals.'" Id. at 625 (quoting Hernandez v. New York, 500 U.S. 352, 361, 111 S.Ct. 1859, 1867, 114 L.Ed.2d 395 (1991)).

p. 677, Note on Challenging Judges: A party seeking a judge's disqualification for cause must do so "at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification." CCP § 170.3(c). Failure to comply with this strict promptness requirement is treated as an implied waiver of the grounds for disqualification. The party can not be allowed to hope for a favorable decision and be able to raise an objection later to an unfavorable one. Tri Counties Bank v. Superior Court, 167 Cal.App.4th 1332, 84 Cal.Rptr.3d 835 (2008).
.....Parties are even allowed a peremptory challenge on remand requiring "reexamination" of a factual or legal issue in order to avoid perceived bias of a trial judge whose judgment or order has been reversed on appeal. CCP § 170.6(a)(2); C.C. v. Superior Court, 166 Cal.App.4th 1019, 83 Cal.Rptr.3d 225 (2008). See also Richard E. Flamm, Judicial Disqualification §§ 27.4, 28.6 (2d ed. 2007) (discussing California law and comparing it to other jurisdictions).
.....The policy basis for CCP § 170.6 is to preserve the appearance as well as the fact of impartial justice. See Swift v. Superior Court, 91 Cal.Rptr.3d 504, 507, 172 Cal.App.4th 878, 878 (2009), quoting Peracchi v. Superior Court, 30 Cal.4th 1245, 135 Cal.Rptr.2d 639, 70 P.3d 1054 (2003).

................................................................... B. Advising the Jury
1. Instructions
p. 688, Note 4: For a case considering the propriety of using CACI, BAJI or proffered special verdict instructions, see Buell-Wilson v. Ford Motor Co., 160 Cal.App.4th 1107, 73 Cal.Rptr.3d 277, review granted and opinion superseded, 80 Cal.Rptr.3d 27, 187 P.3d 887 (2008).

...........................................................................C. Verdicts
1. Types of Verdicts
p. 701, Note 2: One reason that a special verdict is risky is the requirement that the jury must resolve every controverted issue. The possibility of a defective or incomplete special verdict is much greater than with a general verdict, even one that is tested by special findings. Also, the special verdict is subject to de novo review by the Court of Appeal, which enhances the risk of reversal. Saxena v. Goffney, 159 Cal.App.4th 316, 71 Cal.Rptr.3d 469 (2008). Note that error in the form of the verdict is subject to waiver if no party objects. Ambiguity created by the jury's responses themselves is not waived, however, even if no party objects until after the jury is discharged. See also Zagami, Inc. v. James A. Crone, Inc., 160 Cal.App.4th 1083, 74 Cal.Rptr.3d 235 (2008) (reviewing multi-layered approach in dealing with a potentially defective special verdict).
.....Another difficulty arises in the following situation: The jury announced its verdict, and was polled, but certain crucial questions and answers were omitted, resulting in a special verdict that was fatally defective for lack of sufficient votes under the three-fourths rule to support the jury's conclusions on the apportionment of fault. The defendants challenged the validity of the special verdict, but only after the jury was discharged. The Court of Appeal held that the verdict was incomplete, requiring remand for a limited new trial on the issue of apportionment of fault, but the California Supreme Court reversed. In a unanimous decision, the Court concluded that a juror's silence at polling, brought about by the trial court's failure to poll that particular juror on one of several special verdict questions, did not constitute an expressed disagreement with the verdict under CCP § 618. As a result, the juror's silence did not prevent the trial court from accepting the verdict as complete and discharging the jury. In addition, failure to object to the incomplete polling prior to discharge of the jury forfeits any claim of irregularity in the polling procedure. Keener v. Jeld-Wen, Inc., ___Cal.4th___, 92 Cal.Rptr.3d 862, 206 P.3d 403 (2009).

p. 702, n. 4: As the Court of Appeal explained:

"‘An inconsistent verdict may arise from an inconsistency between or among answers within a special verdict or irreconcilable findings. Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law.'"

Stillwell v. Salvation Army, 167 Cal.App.4th 360, 374, 84 Cal.Rptr.3d 111 (2008) (quoting City of San Diego v. D.R. Horton San Diego Holding Co., 126 Cal.App.4th 668, 682, 24 Cal.Rptr.3d 338 (2005)).
.....Further, "Inconsistent verdicts are "against the law,' and the proper remedy is a new trial." Oxford v. Foster Wheeler LLC, 177 Cal.App.4th 700, 721, 99 Cal.Rptr.3d 418, 436 (2009).

2. Impeaching a Verdict
* p. 711: Another example of why granting a nonsuit on the basis of the opening statement alone is disfavored is Cooper v. State Farm Mutual Automobile Insurance Co., 177 Cal.App.4th 876, --- Cal.Rptr.3d ---- (2009).

p. 711, Note 3: Compare Brassfield with Whitlock v. Foster Wheeler, 160 Cal.App.4th 149, 72 Cal.Rptr.3d 369 (2008) (presumption of prejudice requiring new trial not rebutted when juror in an asbestos exposure case impermissibly told other jurors about his positive experience with the U.S. Navy's repair and cleanup practices).

...........................................................D. Judicial Control of the Jury
1. Nonsuit
p. 716, Note 1: For an example of a properly granted nonsuit after the plaintiff has presented the entire case, see Wolf v. Walt Disney Pictures and Television, 162 Cal.App.4th 1107, 76 Cal.Rptr.3d 585 (2008) (affirming nonsuit of claims for a royalty alleged to be owed in connection with the nonmerchandising uses of the Roger Rabbit characters at Disney's theme parks and a royalty on nationally-licensed Roger Rabbit merchandise).
.....
p. 716, Note 1: Even if the plainitff is given an opportunity to put on the entire case, Nonsuit may be gratned "only if, interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all inferences and doubts in favor of the plaintiff, no facts have been identified which would justify a judgment in favor of the plaintiff." O'Neil v. Crane Co., 177 Cal.App.4th 1019, 99 Cal.Rptr.3d 533, 539 (2009).

p. 716, Note 4: Another Court of Appeal, noting a split in authority on the issue, has concluded that superior courts are not forbidden from granting a motion for nonsuit after a plaintiff's opening statement in a bench trial; in the alternative, they may wait and grant a motion for judgment under CCP § 631.8 at the close of the presentation of evidence. Lingenfelter v. County of Fresno, 154 Cal.App.4th 198, 64 Cal.Rptr.3d 378 (2007).

4. Motion for a New Trial
p. 731, Note 3: As Fountain Valley suggests, the effect of an order granting a new trial is to put the parties in the same position as if the case had never been tried. In the new trial, the parties are entitled to introduce additional or new evidence, or even pursue new claims or defenses, even if they were not part of the earlier trial. Gordon v. Nissan Motor Co., 170 Cal.App.4th 1103, 88 Cal.Rptr.3d 778 (2009).

p. 732, New Note 4.1: For a full review of when a new trial may be granted on the ground of newly discovered evidence, see Doe v. United Airlines, Inc., 160 Cal.App.4th 1500, 73 Cal.Rptr.3d 541 (2008).

p. 733, Note on Review of Punitive Damage Awards: For application of the federal and state standards, see Bullock v. Philip Morris USA, Inc., 159 Cal.App.4th 655, 71 Cal.Rptr.3d 775 (2008) (ordering new trial limited to appropriate amount of punitive damages to be awarded); and Buell-Wilson v. Ford Motor Co., 160 Cal.App.4th 1107, 73 Cal.Rptr.3d 277 (reducing punitive damages from $75 million to $ 55 million in light of U.S. Supreme Court opinions and state court precedent), review granted and opinion superseded, 80 Cal.Rptr.3d 27, 187 P.3d 887 (2008).
.....Once the trier of fact determines that the plaintiff has proven her case, she is always entitled of right to compensatory damages. Therefore, additur may be appropriate if the jury awards compensatory damages well below any reasonable calculation of proven damages. In contrast, even after establishing a case where punitive damages are permissible, a plaintiff is never entitled to them. Granting or withholding of an award of punitive damages is wholly within the control of the jury. Sumpter v. Matteson, 158 Cal.App.4th 928, 70 Cal.Rptr.3d 495 (2008).

.................................................................E. Relief From Judgment
1. Relief on Grounds of Mistake or Neglect
p. 742, n. 1: The only statutory exception to the six-month time limit is if the challenged judgment is void. CCP § 473(d). If the court acts despite lacking fundamental authority over the subject matter or the party, the judgment is void and can be challenged at any time. In contrast, if the court merely acts in excess of its jurisdiction or a defined power, the judgment is voidable and must be challenged within the applicable time limits such as CCP § 473(b). For example, in Lee v. An, 168 Cal.App.4th 558, 85 Cal.Rptr.3d 620 (2008), the trial court had jurisdiction over the parties and the subject matter of the action, but acted in excess of its jurisdiction when it imposed terminating sanctions without adequate prior notice when a party failed to appear for case management conferences. However, the defendant's motion filed three years later to set aside the resulting default and default judgment was held to be untimely because the judgment was merely voidable, not void.
.....Even after the six-month period for statutory relief under CCP § 473 has passed, the court may still grant relief on equitable grounds, including extrinsic fraud or mistake, if the party seeking relief has been diligent in seeking to set aside the default once it was discovered. Manson, Iver & York v. Black, 176 Cal.App.4th 36, 97 Cal.Rptr.3d 522 (2009) (Paula Black granted relief from default because she was served with summons and complaint naming "Pamela Black" as the defendant and she informed plaintiff's lawyer that she was not the person named).

p. 742 n. 3: The considerations for discretionary relief from default under CCP § 473 are fully discussed in Fasuyi v. Permatex, Inc., 167 Cal.App.4th 681, 84 Cal.Rptr.3d 351(2008). In the court's view, because the law favors resolution of cases on the merits, any doubts about whether relief should be granted must be resolved in favor of the party seeking relief from default. If a trial court does deny relief, that decision is scrutinized more carefully than an order permitting trial on the merits. An application for either mandatory or discretionary relief must be accompanied by a copy of the pleading proposed to be filed if the application is granted. The purpose of the proposed pleading requirement is to compel the delinquent party to demonstrate his or her good faith and readiness to proceed on the merits. Carmel, Ltd. v. Tavoussi, 175 Cal.App.4th 393, 95 Cal.Rptr.3d 694 (2009).

p. 743, Note 4: Other opinions limiting the mandatory provision of section 473(b) to apply narrowly to defaults and dismissals "akin" to defaults include: Hossain v. Hossain, 157 Cal.App.4th 454, 69 Cal.Rptr.3d 356 (2007); and Pagarigan v. Aetna U.S. Healthcare of California, Inc., 158 Cal.App.4th 38, 69 Cal.Rptr.3d 627 (2007).

p. 744, Note 8: The standard for relief from judgment under FRCP 60(b)(5) is addressed in Horne v. Flores, 557 U.S.___, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009).