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........................................................................Chapter 6: Trial
...........................................................A. Obtaining Trial By Jury
3. Jury Panel
p. 675, Note 4: 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).
...................................................................
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 (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 jury was then discharged. When the defendants' challenged
the validity of the special verdict, the Court of Appeal held
that the verdict was incomplete, requiring remand for a limited
new trial on the issue of apportionment of fault. Keener v. Jeld-Wen,
Inc., 161 Cal.App.4th 848, 75 Cal.Rptr.3d 61 (2008).
2. Impeaching a Verdict
p. 711, Note 3: Compare Brassfield with Whitlock v. Foster
Wheeler, LLC, 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).
4. Motion for a New Trial
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 (2008) (reducing punitive damages from
$75 million to $ 55 million in light of U.S. Supreme Court opinions
and state court precedent).
.....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. 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).
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Reserved for Future Use
.............................................................A. Obtaining Trial By Jury
1. Right to Trial by Jury
3. Jury Panel
...................................................................D. Judicial Control of the Jury
3. Judgment Nothwithstanding
the Verdict
.............................................................E. Relief From Judgment
2. Stipulated Vacation of
Judgment |
