Opinion
E051946 Super.Ct.No. RCVRS087162
11-22-2011
PATRICIA ROSEMARY BANUET, a Minor, etc. et. al., Plaintiffs and Appellants, v. MACK TRUCKS, INC., Defendant and Respondent.
Law Offices of Bruce M. Bunch and Bruce M. Bunch; Robert S. Draper, for Plaintiffs and Appellants. Arias & Lockwood, Joseph Arias, Christopher D. Lockwood and Martin Li, for Defendant and Respondent. On July 1, 2010, following a jury trial, judgment was entered in favor of defendant Mack Trucks, Inc. (defendant) and against plaintiffs Daniel Banuet, deceased, by and
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Martin A. Hildreth, Judge. (Retired judge of the San Bern. Mun. Ct., West Valley Division, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Law Offices of Bruce M. Bunch and Bruce M. Bunch; Robert S. Draper, for Plaintiffs and Appellants.
Arias & Lockwood, Joseph Arias, Christopher D. Lockwood and Martin Li, for Defendant and Respondent.
On July 1, 2010, following a jury trial, judgment was entered in favor of defendant Mack Trucks, Inc. (defendant) and against plaintiffs Daniel Banuet, deceased, by and through his successors in interest, Patricia Rosemary Banuet and Antony Marius Banuet, minors, by and through their guardian ad litem, Hayden Banuet, and Patricia A. Banuet, and Patricia Rosemary Banuet, a minor, and Antony Marius Banuet, a minor, as individuals, by and through their guardian ad litem, Hayden Banuet; and Patricia A. Banuet, an individual (herein collectively referred to as plaintiffs) in their action for wrongful death product liability. Plaintiffs appeal, contending the trial court erred when it limited to six the number of peremptory challenges each side was allowed during jury selection.
We note the name "Hayden Banuet" is also spelled as "Haydee Banuet" in the court proceedings.
I. PROCEDURAL BACKGROUND AND FACTS
As defendant notes, plaintiffs have designated only a limited portion of the record. Thus, our summary of the facts and procedural background is brief.
Plaintiffs are the heirs of Danny Banuet, who died January 28, 2004, when the truck he was driving rolled over, causing blunt trauma to the left side of his head. Plaintiffs sued defendant, claiming that Mr. Banuet's injuries were caused by a design defect, specifically, the lack of protective padding in the interior of the Mack cab. At the start of trial, the court stated that each side would have six peremptory challenges. Citing Code of Civil Procedure section 231, subdivision (c), plaintiffs' counsel contended that because there were multiple parties to each side there should be eight challenges. The court disagreed, finding that since all plaintiffs jointly asserted a single wrongful death claim and had the same interests, there were only two sides. Thus, the trial court did not allow an additional two peremptory challenges.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
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Both sides waived the court reporter for voir dire except as issues arose and counsel wanted them on the record. The minutes reflect two reported hearings about peremptory challenges on April 15, 2010. Although plaintiffs have not designated the reporter's transcript for April 15 as part of the record on appeal, it is attached to the opposition to plaintiffs' motion for new trial, which is contained in the clerk's transcript. According to the record, after defense counsel exercised three peremptory challenges, each against a person with a Hispanic last name, plaintiffs' counsel objected. He noted that all of the plaintiffs are Hispanic and argued that defense counsel "cannot do that." Plaintiffs' counsel later explained that "100 percent of the challenges are Hispanic," evidencing "a pattern of discrimination based on race." The court noted that plaintiffs' counsel had excused a juror with a Hispanic last name. Plaintiffs' counsel agreed, noting that only one of three of his peremptory challenges were against a Hispanic.
In response to plaintiffs' claim of discrimination, defense counsel explained why he excused three Hispanic jurors. He stated that one is a social worker, and in his experience, social workers "tend to align themselves with the plaintiff." Another juror he described as being "meek," and stated, "She's probably a follower." He also stated he "had a sense that she wasn't understanding [his] questions, which causes [him] to wonder whether she is going to understand . . . what lies ahead in the way of evidence in this case, which is going to be very technical." Finally, regarding the third juror, defense counsel explained, "She's young. I think she is a follower . . . . I think she would just go along," and that she would be "easily influenced by a strong foreperson or other jurors."
After listening to counsel for both sides, the court overruled plaintiffs' counsel's objection, stating: "The Court is satisfied with the explanation [defense counsel] has made. It does not reflect a pattern or attitude towards a particular category, but seems to be tailored to a particular juror and appears appropriate. [¶] Under these circumstances, at least at this point, it appears merely coincidental that their last names were of Hispanic background."
The case proceeded to trial in April 2010, and on May 18, the jury returned its verdict in favor of defendant. Plaintiffs moved for a new trial or, in the alternative, for judgment notwithstanding the verdict, arguing the trial court violated section 231, subdivision (c), by allowing six peremptory challenges for each side instead of the eight mandated by the statute. In opposition, defense counsel argued that plaintiffs had failed to establish actual prejudice. In reply, plaintiffs' counsel stated: "[T]he law mandates eight peremptory challenges, the inability to have eight peremptories and only getting six is, in and of itself, a prejudicial matter. It's a denial of a fundamental constitutional right."
Ruling on plaintiffs' motion, the trial court stated: "First point raised is that the Court failed to give each side eight peremptory challenges as provided by [section] 231[, subdivision] (c). The Court finds that the Court did error [sic]in this regard. [¶] The Court finds the point is well taken, but the Court, in reviewing this and in looking at it in context, finds it is insignificant in light of the testimony regarding the nature of the vehicle involved, very high center of gravity, the rotation of the drum, and in particular, the danger in making right hand turns, coupled with the speed of the vehicle. [¶] It doesn't appear, under these circumstances, given the evidence that supported the verdict, to be prejudicial. [¶] And also the Court notes that the decedent's family is the group of plaintiffs that made up the plaintiffs' side of the case and they had, of course, an obvious strong unit of interest. So while the Court does not condone what it did, on the other hand, it has difficulty finding prejudice under the circumstances. [¶] The next item raised by the . . . plaintiff/plaintiffs—defense engaged in a pattern of excusing Hispanic jurors and women jurors. [¶] The Court finds, upon reflection, that the defense did not engage in an illegal pattern of excusing jurors. [¶] . . . [¶] In reviewing all of this, the Court finds the verdict well supported. The motion for new trial or, in the alternative, for judgment notwithstanding the verdict, is denied."
II. LIMITATION ON PEREMPTORY CHALLENGES
Section 231, subdivision (c), in relevant part, provides: "In civil cases, each party shall be entitled to six peremptory challenges. If there are more than two parties, the court shall, for the purpose of allotting peremptory challenges, divide the parties into two or more sides according to their respective interests in the issues. Each side shall be entitled to eight peremptory challenges. If there are several parties on a side, the court shall divide the challenges among them as nearly equally as possible. . . ."
According to the statute, the trial court decides "how many 'sides' are involved, which parties are aligned in interest on each 'side,' and whether the 'interests of justice require additional peremptory challenges. [Citation.]" (Wegner, Fairbank & Epstein, Cal. Practice Guide: Civil Trials and Evidence (Rutter 2011) § 5:551, p. 5-112.) While there is very little law in this area, "[m]any judges look to whether there is a divergence of interests between or among the parties on the particular issues to be tried by the jury." (Id. at § 5:552, p. 5-112.) Here the trial court determined there were only two sides because plaintiffs were aligned in interest. Thus, it limited each side to only six peremptory challenges. Later, however, the court found that its decision to deny plaintiffs two extra peremptory challenges amounted to error. Nonetheless, it found the error was not prejudicial.
Accepting, without deciding, the trial court's finding of error, our review is limited to whether the error was harmless. Plaintiffs contend the trial court's error in failing to give them eight peremptory challenges "in and of itself, requires reversal . . . ." In support of their argument, plaintiffs cite only criminal cases that apply federal constitutional standard, namely, People v. Armendariz (1984) 37 Cal.3d 573, 584 [denial of defense counsel's request to use peremptory challenges requires reversal of judgment], superseded by statute on another ground as stated in People v. Cottle (2006) 39 Cal.4th 246, 255; People v. Coleman (1988) 46 Cal.3d 749, 770 [failure to grant the prescribed number of peremptory challenges is reversible error], application questioned in People v. Medina (1990) 51 Cal.3d 870, 889; and People v. Wright (1990) 52 Cal.3d 367, 397-398 [prohibiting defendant from exercising all of his allotted peremptory challenges amounts to reversible error], overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458-459. However, as defendant points out, plaintiffs' reliance on criminal case law is misplaced.
There is no federal constitutional right to any particular number of peremptory challenges in a civil case. Rather, this is solely a matter of statute. (Cal. Const., art. VI, § 13; § 475; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580 ["When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. [Citation.]"].) Article VI, section 13 of our state Constitution provides: "No judgment shall be set aside . . . for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." "This provision 'is amplified by [section] 475, which states that trial court error is reversible only where it affects ". . . the substantial rights of the parties . . .," and the appellant "sustained and suffered substantial injury, and that a different result would have been probable if such error . . . had not occurred or existed." Prejudice is not presumed, and the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred. [Citations.] . . . .' [Citation.]" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105, distinguished on other grounds in Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 745.) In determining whether a different result would have been probable in the absence of the error, we look to whether the error "rendered the ultimate result in this case unjust. [Citation.]" (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1195.) Thus, the trial court's error in limiting the number of peremptory challenges does not require reversal absent a showing of prejudice. Here, plaintiffs have failed to make such showing.
According to the opening brief, plaintiffs' counsel "explicitly stated his dissatisfaction with a jury from which the defense had excluded all Hispanics and, based upon this dissatisfaction, requested that he be granted [his] statutory right to exercise eight peremptory challenges." Plaintiffs argue that "establishing independent prejudice would be virtually impossible," and "[t]hat is precisely the reason why, when a trial court decides arbitrarily to restrict or eliminate the peremptory challenges available to a party, prejudice is established as a matter of law." We disagree.
Plaintiffs ask us to conclude that a jury without Hispanic members resulted in a jury biased against them. Given the record before this court, we cannot reach such conclusion. As defendant points out, plaintiffs failed to show that "(1) because of answers given in voir dire, they would have exercised peremptory challenges to specific jurors, and (2) because of specific answers given in voir dire, the replacement jurors would have probably voted in favor of plaintiffs." There is simply no evidence that plaintiffs' counsel would have exercised any additional peremptory challenges to any jurors if counsel had been granted two more. We note that in his declaration in support of the motion for new trial/judgment notwithstanding the verdict, plaintiffs' counsel stated, "If I had been allowed the additional two peremptory challenges, I would have exercised them removing Juror 1 and 2. Both eventually voted in favor of the defense. Juror 2 became the presiding juror." Given this limited evidence, it appears the sole basis why counsel would have excused Juror Nos. 1 and 2 was that they voted in favor of the defense. There is no mention of any specific answers given by either of these jurors during voir dire that could have led to a decision to challenge them. There is no evidence that other, more qualified and acceptable jurors could have taken their place. Moreover, to the extent plaintiffs claim that defendant's challenges were improperly exercised to exclude three Hispanic jurors, we have reviewed the transcript and agree with the trial court's finding that there were sufficient legal reasons for excusing the jurors.
We conclude plaintiffs have failed to sustain their burden of showing prejudice as a result of the trial court's error in limiting the number of peremptory challenges, and there has been no miscarriage of justice. Reversal is not required.
III. DISPOSITION
The judgment is affirmed. Defendant is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
RICHLI J.
MILLER J.