Opinion
Bonnie Jo Williams (Williams) appeals a judgment entered following a jury verdict against her in a fraud action brought by Krista Stoner (Stoner). Williams contends the court erred by instructing the jury that it was not required to agree on the same fraudulent act provided at least nine jurors agreed that all of the elements of fraud were proved by a preponderance of the evidence. Williams also contends the court abused its discretion by allowing Stoner to introduce evidence supporting theories of fraud not included in the complaint. We conclude the court did not err and affirm the judgment.
Factual and Procedural Background
Our summary of the factual and procedural background reflects our attempt to set forth an objective, concise background relevant to the issues on appeal. Stoner did not file a respondent’s brief, and we are without the benefit of her factual summary and response to Williams’s brief. 1
On July 28, 1988, Stoner met Williams at the offices of San Diego Pregnancy Services, Inc. (SDPS). At that time, Williams was the director of client services of SDPS. 2 Stoner was then nineteen years old and three to four months pregnant. After being assured that everything she said would remain confidential, Stoner disclosed to SDPS her personal history, including problems she experienced as a teenager and her drug usage. SDPS arranged for a “host family,” with whom Stoner lived during her pregnancy.
On January 5, 1989, Stoner and Williams met in SDPS offices and discussed the possibility of adoption of Stoner’s baby. Williams showed Stoner the files of three prospective adoptive parents, including Carson and Jennie Looney (the Looneys) from Tennessee. During this meeting Stoner’s contractions began and Williams drove Stoner to the hospital. During labor at the hospital and after she had received medication, Stoner signed papers Williams placed in front of her with the explanation they were hospital forms for medical information. 3 Soon thereafter, Stoner gave birth to her baby.
During the morning of January 6, 1989, the Looneys arrived at the hospital. Stoner was released from the hospital before noon that day. Copies of the papers Stoner had signed were missing from her belongings when she arrived at her host family’s home. Apparently the Looneys later left the hospital with Stoner’s baby.
Within two weeks after Stoner gave birth, she changed her mind about placing her baby for adoption. She contacted Williams, who arranged for her to meet on January 19, 1989, with Attorney James Bunker (Bunker), who Williams said represented and helped both sides to the adoption. On January 31, 1989, Bunker sent Stoner a letter advising her that he did not represent her and that if she wanted her baby back she would have to retain a Tennessee attorney. Stoner ultimately was unable to regain custody of her baby and a Tennessee court notified her that her parental rights had been terminated on grounds of abandonment in an action filed by the Looneys in Tennessee. One document submitted to the Tennessee court in support of the Looneys’ action was an affidavit by Williams which Bunker asked her to prepare, disclosing personal information about Stoner that Stoner had revealed to Williams and SDPS. Williams also had traveled to Tennessee where the Looneys’ attorney deposed her in connection with their action.
Stoner filed this action against Williams and others alleging fraud, intentional infliction of emotional distress, negligence and negligent infliction of
“a. that SDPS was a licensed agency fully authorized to provide and did provide pregnancy testing, and objective professional counseling services including accurate information on the full range of alternatives available to young, unwed, pregnant women when [in] truth and in fact SDPS was unlicensed and unauthorized by any governmental agency to provide such services;
“b. that any information given by [Stoner] was fully confidential and would not be used in a manner contrary to [Stoner’s] interests, when in truth and in fact, [Stoner’s] confidences were used against her in procuring the fraudulent adoption of her child;
“c. that [Bunker] represented [Stoner’s] interests as he did other SDPS clients and would protect her interests, when in truth and in fact, [Bunker] had been retained by the [Looneys] to facilitate the adoption of [Stoner’s] child;
“d. that the documents [Stoner] signed were mere formalities, that they provided for temporary placement of her child, and were for [Stoner’s] benefit in that the [S]tate of California would assist her if there were problems with the adoptive placement, when in truth and in fact the documents [Stoner] signed provided her no protection.”
The court subsequently granted SDPS’s motion (joined by Williams) for summary adjudication of Stoner’s claims for intentional infliction of emotional distress, negligence and negligent infliction of emotional distress, finding they were barred by the one-year statute of limitations. Stoner’s action for fraud remained as the sole cause of action.
After trial, the jury returned a verdict of $275,000 against Williams for intentional fraud or concealment and also for negligent misrepresentation. The jury also found by clear and convincing evidence that Williams committed intentional fraud or intentional concealment. 5 Following the second phase of the trial, the jury awarded Stoner punitive damages of $375,000 against Williams. The award of punitive damages was later reduced to $25,000 in connection with Stoner’s consent to a remittitur. Williams appeals the judgment against her.
I
The Court Correctly Instructed the Jury That Nine Jurors Did Not Have to Agree on the Same Fraudulent Act
Williams contends the court prejudicially erred by instructing the jury that nine jurors were not required to agree on the same fraudulent act. 6 She asserts the court’s response to the jury’s note posing this question erroneously stated that nine or more jurors merely had to agree that each element of an action for fraud must be proved. We disagree with Williams’s contention.
A
The court instructed the jury regarding the burden of proof with a modified BAJI No. 2.60 instruction offered by Stoner. The instruction read in part:
“The plaintiff, [Stoner], has the burden of proving by a preponderance of the evidence all the facts necessary to establish one or more of the following:
“1. SDPS, [Williams], or their employees or agents misrepresented to [Stoner] that SDPS gave ‘Comprehensive Pregnancy Counseling’ services on the full range of alternatives available to a woman in [Stoner’s] situation.
“2. SDPS, [Williams], or their employees or agents concealed from [Stoner] the fact that they were an unlicensed adoption agency.
“3. SDPS, [Williams], or their employees or agents misrepresented to [Stoner] that they would be her advocate in representing her interests regarding the child.
“4. SDPS, [Williams], or their employees or agents misrepresented to [Stoner] that the information revealed during her initial interview and during her ‘counseling’ would be fully confidential and not used in a manner contrary to her interests.
“5. SDPS, [Williams], or their employees or agents misrepresented to [Stoner] that the papers she signed on January 5, 1989, while in labor hadsomething to do with Medi-Cal when in fact they were a medical records authorization release and ICPC Form 100A.
“6. SDPS, [Williams], or their employees or agents misrepresented to [Stoner] that their counseling would not be coercive in terms of urging her to place her child for adoption.
“7. SDPS, [Williams], or their employees or agents concealed from [Stoner] that [Bunker] did not represent her interests, but rather, those of the [Looneys] in the adoption of [Stoner’s] child.
“[Stoner] must also prove that:
“(a) One or more of the above listed items legally caused damage to [her]; and
“(b) The nature and extent of the injury or damage.
“[Stoner] must also prove the nature and extent of [her] damages legally caused by [Williams’s] misrepresentations or concealment. ...”
The court also instructed the jury with BAJI No. 12.31 regarding the six elements that must be proved to find Williams liable for intentional misrepresentation. 7 The court also instructed the jury that nine or more jurors must agree on the verdict.
After one day of deliberation, the jury sent the court the following note: “There are 7 allegations made by plaintiff (BAJI [No.] 2.60) which relate to the verdict questions. The instructions indicate plaintiff must prove by preponderance of evidence all facts necessary to establish one or more of the allegations. In order to answer yes, do a minimum of 9 jurors need to agree
“(A) To find intentional misrepresentation, at least nine jurors must agree on each of the elements of [BAJI No.] 12.31 [] or 12.40.
“(B) To find intentional concealment, at least nine of the jurors must agree on each of the elements of [BAJI No.] 12.35.
“(C) To find negligent misrepresentation, at least nine of the jurors must agree on each element of [BAJI No.] 12.45.
“(D) It is not necessary that the same nine agree to the same [one] of the seven items listed in [BAJI No.] 2.60 as long as nine or more agree that all of the elements of one of the above numbered instructions [have] been met by a preponderance of the evidence.” (Italics added.)
The jury reached its verdict soon after receiving these additional instructions.
In discussing the appropriate response to the jury’s note, counsel for SDPS stated he believed that in order to find his client liable for fraud, at least nine jurors must agree on the same one or more of the seven possible fraudulent acts set forth in the modified BAJI No. 2.60 instruction. The court stated: “I don’t believe that the law requires that they agree upon the same act. They must agree on each of the elements on the intentional misrepresentation, negligent misrepresentation, or concealment occurred, but they could have different acts of misrepresentations, for example, and all nine of them find that she negligently—or someone negligently misrepresented something to [Stoner] and it caused her damage.” Stoner’s counsel agreed with the court and stated: “The
[Resch
v.
Volkswagen of America, Inc.
(1984)
B
The issue is one of fundamental importance: on what must jurors agree in reaching a verdict? Surprisingly, we have been unable to locate, and Williams does not cite, any case or other authority which specifically addresses this issue in a civil case.
8
We do not have Stoner’s assistance on this issue because she did not file a respondent’s brief. Contrary to the suggestion of Stoner’s trial counsel, the case of
Resch
v.
Volkswagen of America, Inc.,
(1984)
C
Code of Civil Procedure 10 section 613 provides in part that the jurors must be kept together during deliberations “until at least three-fourths of them agree upon a verdict or are discharged by the Court.” Section 618 provides in part: “When the [jurors], or three-fourths of them, have agreed upon a verdict, they must be conducted into court and the verdict rendered by their foreman.” Thus, at least nine of twelve jurors must, and in this case did, agree on the general verdict. However, the extent to which the jurors in a civil case must agree on the underlying specifics which lead to a verdict is not clearly set forth in any statute or case we have been able to locate. Must the jurors simply agree that all elements of a cause of action were proved or must they additionally agree on the same specific act (or acts) constituting a particular element of the cause of action? Because we have not found any civil authorities discussing the question, we refer to criminal cases for assistance.
“. . . In California it is unnecessary jurors unanimously agree on the theory of criminal culpability supporting their unanimous conclusion of guilt. . . .
. . [W]here there is a single offense and a single charge, it is the task of each juror to conclude, based perhaps on very different theories, whether the defendant is guilty or not guilty. It is simply of no consequence that some jurors believe the defendant is guilty based on one theory while others believe he is guilty on another even when the theories may be based on very different and even contradictory conclusions concerning, for example, the defendant’s basic intent in committing the crime.
“. . . We therefore conclude the giving of CALJIC No. 17.01 is inappropriate in those cases where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event. We find CALJIC No. 17.01 an appropriate instruction when conviction on a single count could be based on two or more discrete criminal events. . . . [H]owever, the jurors need not agree on the theory of criminality or the theory of criminal participation.” (8 Cal.App.4th at pp. 44-45.)
Our analysis in the
Davis
case was effectively the same as the California Supreme Court’s subsequent analysis in
People
v.
Santamaria
(1994)
“It is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he is guilty. [Citations.] More specifically, the jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator. [Citations.] This rule of state law passes federal constitutional muster. [Citation.]
"
“Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. Sometimes, as probably occurred here, the jurysimply cannot decide beyond a reasonable doubt exactly who did what. There may be a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt that he was one or the other.”
The court cited the following specific example in support of its reasoning: “In analyzing the unanimity question in a robbery case, one Court of Appeal used this example. ‘ “Assume a robbery with two masked participants in a store, one as the gunman and one as the lookout. If one witness makes a voice identification of the defendant as the gunman who demanded money, but other evidence, such as a fingerprint, suggests the defendant was actually holding the door open as lookout, the jury would be faced with the same theories presented in this case: find the defendant was the gunman and therefore a direct perpetrator, or find he was at the door and therefore an aider and abettor. Either way he would be guilty of robbery.” If 12 jurors must agree on the role played by the defendant, the defendant may go free, even if the jurors all agree defendant committed the crime. That result is absurd.’
(People
v.
Perez
(1993)
In a single offense situation, a defendant who commits more than one act could receive more beneficial treatment if the rule were otherwise. The court in
People
v.
Perez
(1993)
Our California Supreme Court followed this approach long before the
Santamaría
case, and it held in one case that a unanimity instruction regarding the method by which a theft was committed was not required, reasoning: “If [defendant] intended that only possession of the property should pass at the time of the sale, defendant was guilty of larceny by trick or device, but if [defendant] intended that title should pass, defendant was guilty of obtaining property by false pretenses. [Citations.] Irrespective of [defendant’s] intent, however, defendant could be found guilty of theft by one means or another, and since by the verdict the jury determined that he did fraudulently appropriate the property, it is immaterial whether or not
The vast majority of other state and federal courts apply the same unanimity standards as set forth in the
Davis
and
Santamaria
cases. (See, e.g., Annot., Requirement of Jury Unanimity as to Mode of Committing Crime Under Statute Setting Forth the Various Modes by Which Offense May Be Committed (1990)
Given this established law on jury agreement in criminal cases, we compare the criminal juror unanimity standards with the requirement that three-fourths of civil case jurors agree on a verdict.
D
Although comparing civil law with criminal law is sometimes like comparing apples with oranges, we believe there are close parallels between required jury agreement in a criminal case and required jury agreement in a civil case. In both criminal and civil cases, the jurors must agree on something to return a verdict. Jurors in a criminal case must decide whether a particular criminal offense was committed, but generally need not decide specifically what acts the defendant performed in committing that offense. In a civil case involving a general verdict, jurors, at a minimum, must decide whether a particular cause of action was proved and, in so doing, must
Generally, our criminal law system places greater burdens on the plaintiff or prosecutor to prove a case against a defendant than does our civil law system. For instance, the burden of proof is greater. In criminal cases, guilt must be proved beyond a reasonable doubt. In civil cases, liability generally must be proved by a preponderance of the evidence. Also, the jury vote requirements for a verdict are greater in criminal cases than in civil cases. In criminal cases, unanimous verdicts are required in California. In civil cases, only three-fourths of jurors need agree on a verdict in California. Also, the types of evidence admissible are generally more restricted in criminal cases than in civil cases. Thus, a pattern is established revealing frequently higher standards for plaintiffs in criminal cases than in civil cases. We are unaware of any significantly lower standards for plaintiffs in criminal cases than in civil cases. We therefore conclude that the answer to the question of jury agreement in civil cases should follow the rules of jury agreement in criminal cases and not be more onerous on the civil plaintiff than on the criminal prosecutor.
As discussed above, in criminal cases involving a single, discrete criminal offense jurors need not decide on the specific acts taken by a defendant or legal theories supporting a defendant’s commission of that offense, but need decide only that the defendant is guilty of that offense as defined by law. Because the law may allow for alternative means of committing an offense, our criminal justice system does not require that jurors unanimously agree on exactly what alternative means or actions a defendant took in committing that offense. For example, it is not required that jurors agree that a defendant actively committed the offense or that he or she merely aided and abetted the primary offender. It is required that the jurors unanimously agree the defendant was involved in one or the other of those capacities to support a guilty verdict.
A different rule applies when the evidence reveals multiple acts which could support the finding of multiple offenses among which the information or prosecutor has not specifically differentiated. In these circumstances if the jury is given a verdict form asking it to decide whether a single offense has been committed, the jury may not necessarily know to which offense the verdict is directed. Accordingly, case law requires that CALJIC No. 17.01 or its equivalent be given. This instruction effectively requires that jurors agree on the “same criminal offense” rather than on the specific acts performed by a defendant in committing that offense. Thus, unanimous agreement on the ultimate, essential fact (i.e., commission of a particular criminal offense) is
Returning to civil cases, we begin with the requirement that at least nine of twelve jurors agree that each element of a cause of action has been proved by a preponderance of the evidence. The elements of a cause of action constitute the essential or ultimate facts in a civil case 12 comparable to the elements of a single, discrete criminal offense in a criminal case. Analogizing a civil “cause of action” to a single, discrete criminal offense, and applying the criminal law jury agreement principles to civil law, we conclude that jurors need not agree from among a number of alternative acts which act is proved, so long as the jurors agree that each element of the cause of action is proved.
In civil cases in which there exist multiple causes of action for which multiple or alternative acts could support elements of more than one cause of action, possible jury confusion could result as to whether a specific cause of action is proved. In those cases, as in criminal cases in which separate criminal offenses are alleged or shown by the evidence, we presume that jury instructions may be appropriate to inform the jury that it must agree on specific elements of each specific cause of action. Yet, this still does not require that the jurors agree on exactly how each particular element of a particular cause of action is proved. 13
E
Given that three-fourths of the jurors in a civil case must agree that each of the elements of a cause of action is proved, we must address the issue of whether the case at hand involved just one cause of action or multiple causes of action, which might warrant further jury instructions regarding differentiation. On the face of Stoner’s complaint, only one “cause of action” remained after the court granted summary adjudication dismissing all other “causes of action.” The remaining cause of action was for fraud. Based on Stoner’s complaint, the jury was presented with the question of whether Williams was liable to Stoner for fraud. The existence of multiple legal theories or acts on which that particular fraud could be proved would not necessarily result in multiple causes of action.
Applying the primary rights theory to our case, we look at Stoner’s injury (or harm suffered) to determine whether she alleged or proved separate injuries which would result in separate causes of action being stated. The record reveals Stoner effectively sustained only one “injury” as a result of the alleged fraudulent acts of Williams. Stoner’s complaint alleged that she “suffered severe mental and emotional distress causing physical injury as a result of losing her child” and prayed for general, specific and punitive damages. In her trial brief she stated her “damages are clearly established” because she “has lost her child as a result of the trust and confidence she placed in SDPS [and presumably Williams].” In discussing damages during closing arguments, Stoner’s attorney pointed to the fact that “this woman’s
II
The Court Did Not Abuse Its Discretion by Admitting Evidence Relating to Matters Not Specifically Alleged in Stoner’s Complaint
Williams contends the court abused its discretion by allowing into evidence testimony regarding matters not specifically alleged in Stoner’s
We conclude the testimony allowed by the court did not vary from the allegations contained in Stoner’s complaint to the extent that Williams was prejudicially misled. (§ 469;
Franz
v.
Board of Medical Quality Assurance
(1982)
We further note that the three specific areas of Baran’s testimony to which Williams objects are closely related to the fraudulent acts alleged in Stoner’s complaint. Testimony about a duty to disclose the difference between agency and independent adoptions not only was important for the jury’s understanding of the case as a whole but also related to the complaint’s allegation that SDPS was a licensed agency authorized to provide objective and accurate information on the full range of alternatives available to pregnant women. Testimony about whether Williams owed Stoner duties of disclosure and confidentiality related closely to the complaint’s allegation that Williams represented to Stoner that any information revealed by Stoner would be kept fully confidential. Testimony regarding Williams’s duty to disclose the nature of the documents signed by Stoner directly related to the complaint’s allegation that Williams represented the documents to be mere formalities and were for Stoner’s benefit. Thus, the trial court did not abuse its discretion by allowing this testimony.
Williams also contends the court abused its discretion by allowing Stoner to include in modified BAJI No. 2.60 three other alleged fraudulent
Disposition
The judgment is affirmed.
Work, Acting P. J., and Huffman, J., concurred.
Notes
California Rules of Court, rule 14(a) states: “Every respondent shall file a respondent’s brief . . . .” (All rule references are to the California Rules of Court.) Rule 17(b) provides that if the respondent fails to file a respondent’s brief, we “may accept as true the statement of facts in the appellant’s opening brief. . . .” However, because of the apparent “slant” in the statement of facts contained in Williams’s brief, we decline to exercise our rule 17(b) option. Rule 13 requires that appellants’ briefs contain a concise and accurate statement of material facts. Our independent review of the record shows that Williams has not accurately conveyed a full, nonbiased statement of the facts. (See
In re Marriage of Dekker
(1993)
A few months later Williams became the director of adoptions of SDPS.
Those papers actually included a form authorizing the Looneys to remove Stoner’s baby from the hospital and other documents related to effecting an interstate adoption.
SDPS, Bunker and the Looneys also were named as defendants.
The jury also found SDPS liable for intentional fraud or concealment, but not by clear and convincing evidence.
Our use of the term “fraudulent act” in this opinion means that element of an action for fraud consisting of false representation, concealment or nondisclosure. (See, e.g., Civ. Code, §§ 1709, 1710;
Masters
v.
San Bernardino County Employees Retirement Assn.
(1995)
The court instructed the jury with BAJI No. 12.31 as follows:
“1. The defendant must have made a representation as to a past or existing material fact;
“2. The representation must have been false;
“3. The defendant must have known that the representation was false when made, or must have made the representation recklessly without knowing whether it was true or false;
“4. The defendant must have made the representation with an intent to defraud the plaintiff, that is, defendant must have made the representation for the purpose of inducing the plaintiff to rely upon it and to act or to refrain from acting in reliance thereon;
“5. The plaintiff must have been unaware of the falsity of the representation; she must have acted in reliance upon the truth of the representation and she must have been justified in relying upon the representation;
“6. And finally, as a result of her reliance upon the truth of the representation, the plaintiff must have sustained damage.”
The court also instructed the jury with BAJI Nos. 12.35 and 12.45 regarding the elements of concealment and negligent misrepresentation, respectively.
One court in dicta noted the appellant’s contention that the jury could have found it liable for fraud under alternative theories of intentional misrepresentation or concealment, depriving it of a verdict of nine jurors on the same theory.
(Orient Handel
v.
United States Fid. & Guar. Co.
(1987)
Resch addressed the question of whether the same nine or more jurors had to agree on each of the special verdict questions. (Resch, supra, 36 Cal.3d at pp. 677-678.) The court concluded that different groups of nine or more jurors could participate and agree on different special verdict questions in civil cases in order to reach a valid verdict. (Id. at pp. 682-683.)
All statutory references are to the Code of Civil Procedure unless otherwise specified.
CALJIC No. 17.01 provides: “The defendant is accused of having committed the crime of _[in Count_]. The prosecution has introduced evidence tending to prove that there is more than one [act] [or] [omission] upon which a conviction [on Count_] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of such [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count_], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”
Evidence Code section 500 provides that a party has the burden of proving “each fact the existence or nonexistence of which is essential to the claim for relief’ that he or she asserts. (Italics added.)
Further, given the general verdict form in this case, we cannot presume the jurors actually disagreed on the fraudulent acts alleged by Stoner.
Without any reference to the primary rights theory, the court in
Conger
v.
White
(1945)