210 Cal. App. 4th 340
Cal. Ct. App.2012Background
- Barboni, a pet-sitting service owner, was hired to house-sit the Tuomis’ Laguna Niguel home; she slipped on a wet slate border of a sloping driveway on January 23, 2009, sustaining injuries.
- Barboni filed suit on January 11, 2010, and amended February 10, 2010, asserting claims for general negligence and premises liability.
- The Tuomis designated two expert witnesses late (September 30, 2010 designation; ex parte orders granted in November 2010), which Barboni opposed.
- Trial was delayed by continuances and ultimately began April 4, 2011.
- Before trial, the court granted a motion in limine to exclude liability insurance evidence; the jury received an instruction not to consider insurance, and ultimately ruled in favor of the Tuomis.
- Barboni moved for a new trial alleging juror misconduct and arguing the late expert designation harmed her; the trial court denied the motion and the judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror misconduct standard applied | Barboni claims juror Andrea H.’s declaration shows insurance discussion biased the verdict. | Tuomis contend eight jurors denied any insurance influence; Andrea H.’s statements are unreliable. | No juror misconduct; substantial evidence supports the court’s finding. |
| Late designation of experts prejudicial | Barboni argues late designation violated CCP 2034 and harmed her trial preparation. | Ex parte grants were due to excusable neglect; designation did not prejudice Barboni. | No abuse of discretion; no miscarriage of justice. |
Key Cases Cited
- People v. Dorsey, 34 Cal.App.4th 694 (Cal. App. Dist. 1995) (admissibility and evaluation of juror-related evidence in new-trial motions)
- Donovan v. Poway Unified School Dist., 167 Cal.App.4th 567 (Cal. App. Dist. 2008) (burden on movant to show juror misconduct; appellate standard of review)
- People v. Majors, 18 Cal.4th 385 (Cal. 1998) (substantial evidence standard for reviewing findings)
- Bell v. Bayerische Motoren Werke Aktiengesellschaft, 181 Cal.App.4th 1108 (Cal. App. Dist. 2010) (juror declarations admissible only to describe overt acts; not internal thought processes)
- Fairfax v. Lords, 138 Cal.App.4th 1019 (Cal. App. Dist. 2006) (exclusion of expert-designation procedure; simultaneous exchange rule)
- Jones v. Sieve, 203 Cal.App.3d 359 (Cal. App. Dist. 1988) (reliance on dissenting juror declarations in new-trial rulings)
- McDonald v. Southern Pacific Transportation Co., 71 Cal.App.4th 256 (Cal. App. Dist. 1999) (contradictory juror declarations; prejudice analysis)
- Whitlock v. Foster Wheeler, LLC, 160 Cal.App.4th 149 (Cal. App. Dist. 2008) (misconduct and prejudice framework in new-trial context)
- In re Marriage of Carlsson, 163 Cal.App.4th 281 (Cal. App. Dist. 2008) (predecessor case on hearing of ex parte applications)
- Andrews v. County of Orange, 130 Cal.App.3d 944 (Cal. App. Dist. 1982) (judicial treatment of admitted or uncontroverted misconduct evidence)