(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
The court had no adequate basis for a new trial order, conditional or otherwise. (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 906.) We do not construe the juror declarations taken as a whole to show an express or implied agreement by the jury to inflate the verdict to include attorney fees. After examining the record, we conclude a new trial was not required as a matter of law because of alleged jury misconduct or anything else.
Under like circumstances the court in Moore v. Preventive Medicine Medical Group, Inc., (1986) 178 Cal.App.3d 728 [223 Cal.Rptr. 859] affirmed the denial of a new trial for jury misconduct. In Moore, two juror declarations were introduced to show a discussion among the jurors regarding the plaintiff’s probable contingency fee obligation to his attorney. Distinguishing Krouse v. Graham (1977) 19 Cal.3d 59 [137 Cal.Rptr. 863, 562 P.2d 1022], the court found the declarations insufficient to establish [a]n express agreement by the jurors to include such fees in their verdict, or extensive discussion evidencing an implied agreement to the effect. [Citations.]…. The declarants do not suggest an express agreement was reached and the discussion they relate could hardly be characterized as extensive, (Moore, supra, 178 Cal.App.3d at pp. 740-741, fn. Omitted.) Thompson v. Friendly Hills Medical Center, (1999) 71 Cal.4th 544, 548.
The main thrust of moving parties’ argument seems to be juror discussion about money. Discussions about the appropriate size of Mrs. Brown’s award and how it might be spent is simply not juror misconduct. The moving party has not cited a single authority to suggest otherwise. There is no evidence in the declarations that any juror awarded Mrs. Brown compensation not supported by evidence.
As discussed in the authorities cited above, it is acknowledged that these types of discussions are part of the give and take of the jury’s secret deliberation process.
Furthermore, the jury’s adequate award to Mrs. Brown is moot. It was reduced by three-quarters by operation of law, as was minor Plaintiff Alexandra’s. In addition, the declarations themselves are suspect. They are replete with cross-outs and interlineations. It is significant to note that in three of the typed declarations it states that there was discussion concerning the $250,000.00 MICRA cap on economic damages. All three jurors struck out that language. On the issue of contingent attorneys’ fees, Mr. Lawrence’s declaration states the topic was brought up by one of the jurors, but Mr. Lawrence also declared that all the jurors argued that it would be inappropriate to award such fees and that all jurors agreed.
The declarations are no more than an attempt by the losing party to collaterally attack the jury’s verdict by commenting on the jury’s secret deliberative process and then making the quantum leap that a wrong verdict was reached. There is no evidence, admissible or otherwise which would support such a conclusion as a matter of law.
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