...Cases and Materials on California Civil Procedure, 3d ed. (ThomsonWest 2008) All Rights Reserved

........................................................................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


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