Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County, Michael A. Smith, Judge, Consol. with G038530, Super. Ct. No. SCV79411.
Horvitz & Levy, S. Thomas Todd, Bradley S. Pauley; Callahan McCune & Willis and Scott Blackstone for Defendant, Cross-complaint and Appellant.
Shook, Hardy & Bacon, Frank P. Kelly; Snell & Wilmer, Richard A. Derevan, Daniel S. Rodman and Marc L. Turman for Defendant, Cross-defendant and Respondent.
No appearance for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
Plaintiff De’Wayne Cory was injured in a rollover accident and sued his sister, defendant and cross-complainant Corrinea Ann Cory (Cory), who was the driver, and defendant and cross-defendant Ford Motor Company, the manufacturer of the vehicle. The jury awarded De’Wayne $22 million against Cory. Ford prevailed both on the complaint and the cross-complaint Cory filed against it.
Cory raises two issues in her appeal: She contends the verdict was tainted by juror bias, which entitled her to a new trial; and the court erred in awarding costs to Ford. The award included costs incurred in Ford’s defense of the main action. The trial court did not abuse its discretion in denying the new trial motion. But it erred in failing to separate Ford’s costs incurred in the defense of the main action from those incurred in defense of Cory’s cross-complaint. We therefore remand the case to the trial court to determine the appropriate amount of costs to be awarded to Ford.
FACTS
Because the parties do not dispute the facts on which the litigation was based, we quote from appellant’s brief. “On September 16, 2000, De’Wayne was a passenger in a 1985 Ford LTD sedan that his sister [Cory] was driving on Interstate 5 in Siskiyou County, California. A low-speed, single-car, rollover accident occurred, rendering De’Wayne an incomplete quadriplegic. [¶] [Cory] does not recall what caused the accident, although she acknowledged telling a police officer at the scene that she must have fallen asleep. [¶] Evidence was presented that, during the rollover, the roof of the LTD intruded significantly into the passenger compartment and caused De’Wayne’s injury.” (Record references and footnotes omitted.)
De’Wayne sued Ford and Cory. Cory cross-complained against Ford for indemnification, apportionment of fault, and declaratory relief. The jury rendered a verdict against Cory and in favor of Ford on both the complaint and the cross-complaint. Thereafter, the court denied Cory’s motion for a new trial on both the complaint and the cross-complaint and ordered her to pay Ford’s costs. Facts pertaining to the issues on appeal are incorporated in our discussion below.
DISCUSSION
1. The Alleged Juror Bias
a. Abuse of Discretion Standard of Review
Cory contends that the trial court’s determination that no juror bias existed is subject to independent review. Generally this term is equated with a requirement the appellate court grant de novo review. (See, e.g., HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) And, as noted by Cory, People v. Ault (2004) 33 Cal.4th 1250, 1262 states that “[c]ourts have stressed the particular need for independent review of the trial court’s reasons for denying a new trial motion in juror bias cases.” But independent review of the trial court’s reasons does not equate with de novo review of the trial court’s decision.
It is well established that orders denying a new trial are reviewed for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1159; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859.) Only where a motion for new trial depends upon the resolution of a question of law is it reviewed de novo. (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1561, fn. 18.)
In the case Cory relied upon in arguing for de novo review, People v. Ault, supra, 33 Cal.4th 1250, the Supreme Court affirmed an order granting a new trial and reiterated the general rule that such orders are to be reviewed under an abuse of discretion standard, expressly rejecting an argument that the court should review the order de novo. (Id. at p. 1255.)
b. Facts Relating to the Allegations of Bias
Cory’s motion for a new trial was based on two grounds: jury misconduct and bias. In support of this contention, she submitted a declaration by her lawyer. He recited that juror Scott had submitted a written question to the court “asking what would happen to any money awarded to the plaintiff as future damages in the event plaintiff were to die young.” The court had responded by instructing the jury that it was “not to speculate as to any issues with regard to damages” and “not to be influenced by any other potential or speculative outcomes.”
Cory also supported the motion with declarations from three jurors. Juror Duncan stated, “During the deliberation over the plaintiff’s economic damages, one of the jurors said he believed that the plaintiff’s family were [sic] a bunch of poor people who were [sic] just trying to get rich through this lawsuit. Several jurors said they especially did not like [DeWayne’s] mother, Betty Cory, who was in the courtroom throughout the trial. Some jurors said Mrs. Cory was just looking to get enough money out of this lawsuit to buy a new house.”
The declaration of a second juror, Curtis Boyden, stated that the jury took almost a day to decide the issue of the alleged design defect. He also stated, that, after the jury was split eight to four against finding a defect in the vehicle, he had advised his fellow jurors of information he had obtained from watching several television shows and reading magazines about the design and construction of automobiles. The declaration of juror Yolanda Garcia confirmed Boyden’s statements that during deliberations he had made statements concerning information from television and magazines as well as based on his experience with Ford automobiles.
In opposing the motion, Ford submitted new declarations by two of the jurors relied upon by Cory, contradicting their earlier statements and explaining how Cory’s investigator had misled them. Juror Boyden stated that, contrary to the statement in his earlier declaration, he had not discussed magazine articles or television shows with his fellow jurors. He related that, when presented with the earlier declaration prepared by Cory’s investigator, he did not want to sign it because it was untrue. The investigator told him other jurors had stated he had shared the extraneous information with them. He gave in and signed the declaration because it was late at night, he needed to put his children to bed, and he just wanted to get rid of the investigator. In his new declaration he also denied hearing any juror make a statement about poor people.
Yolanda Garcia also filed a new declaration stating that portions of her earlier declaration were untrue. Specifically she now denied that Boyden had referred to extraneous evidence based on television shows or magazines. At first she had refused to sign her earlier declaration, also obtained by the same investigator. But when the investigator showed her Boyden’s declaration, she signed the one presented to her because, even though she did not remember it, she was persuaded it must have been true. She also denied hearing any reference to poor people during deliberations.
Ford’s opposition to the new trial motion was further supported by three additional juror declarations. Juror McElligott denied that Boyden had made statements relating to magazine articles, television shows, or his experience with other automobiles. The declaration of juror Donn DiMichele denied recalling Boyden referring to television shows, outside readings, or his experiences with other vehicles. Foreperson Francis Scott also signed a declaration denying that Boyden made the statements previously ascribed to him. He stated “[a]s the jury foreperson, it was my duty to keep the other jurors in check. If any of the jurors looked or even hinted like they were going to color outside of the lines and talk about anything other than the evidence we heard or saw in court during the trial, I would have told them that we were not permitted to discuss any such evidence. We were a very self-disciplined jury.”
Although Cory’s motion for a new trial was based on both alleged jury misconduct and bias, the appeal only argues the judgment should be set aside because of the juror’s alleged bias against poor people. As to the claim of bias based on the poverty of plaintiff and Cory’s family, the trial court concluded that the evidence was insufficient to establish the allegation. It stated “[t]he most obvious reason is in fact they did return a verdict of 22 million dollars in favor of [De’Wayne]. And, as pointed out, they had no way of knowing whether or not that verdict would be collectible by any means. [¶] If the jury had found Ford liable for a defective product and then there was an issue as to damages, and there was a very low damage award, then at least an inference might be drawn that some prejudice or bias influenced the damage award. [¶] But here we have just the opposite. We have . . . finding of [no] defect as to Ford and still the jury [was] willing to give a very large damage award. [¶] So I think the jury’s actions belie any bias against awarding [De’Wayne] a large sum of money.”
c. No Abuse of Discretion in Denying the Motion for New Trial
The curiosity exhibited by the juror who asked “what would happen to any money awarded to the plaintiff as future damages in the event plaintiff were to die young” hardly qualifies as bias by any standard. The court’s response that the jurors were “not to speculate as to any issues with regard to damages” and “not to be influenced by any other potential or speculative outcomes” more than adequately served to keep them from speculating on this issue. And despite the rather extraordinary lengths to which the investigator went in attempting to impeach the verdict, it is noteworthy that none of the juror declarations even hints that the jury gave any further consideration to this question.
This leaves us only with juror Duncan’s declaration asserting (1) an alleged statement by one of the jurors to the effect that members of DeWayne’s “family were a bunch of poor people who were just trying to get rich through this lawsuit”; (2) the alleged statements that jurors did not like [DeWayne’s] mother; and (3) the alleged statement that [DeWayne’s] mother “was just looking to get enough money out of this lawsuit to buy a new house.” On the other side we have declarations from two jurors (Boyden and Garcia), both of whom disclaimed recalling any remarks being made by jurors concerning poor people or the poverty of Cory’s family. Again, considering the length to which the investigator went to obtain impeaching declarations from jurors, the absence of any reference to this issue in any of the declarations except Duncan’s is also worthy of some note. Although the trial court did not make any express findings as to the truth of the allegations, it would have been justified in disbelieving the Duncan allegations.
But assuming they were true, we fail to see an abuse of discretion in the denial of the new trial motion on the basis of Duncan’s declaration. We remind the parties that “the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.]” (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) And, as Ford notes, citing Tillery v. Richland (1984) 158 Cal.App.3d 957, 977, “jurors are entitled, and expected, to form opinions about the parties . . . based on the evidence presented at the trial.” Most of the cases cited by Cory in support of her argument merely stand for the general proposition that actual bias may be a basis for a new trial. This hardly aids our determination of whether the court abused its discretion in denying the new trial motion.
And, again as pointed out by Ford, the two cases relied on by Cory where the court reversed the denial of a new trial because of juror bias (Weathers v. Kaiser Foundation Hospital (1971) 5 Cal.3d 98, 110-111 and Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 509) may be distinguished. Both cases involved jurors concealing their bias in voir dire, not situations where, as here, negative impressions concerning some of the parties were arrived at, if at all, in the course of the trial. As Cory concedes, “our case does not involve concealment of bias during voir dire . . . .”
Finally, we share the trial court’s belief that the very size of the verdict militates against a conclusion it was the result of jury bias. Cory argues the jury must have known the judgment against her would be uncollectible. She cites the evidence concerning the family’s financial condition. If we assume the jury ignored the court’s instruction not to speculate on such matters, it still does not follow that it knew the extent of insurance coverage available to Cory or speculated about this. We must assume that the jury followed the court’s instructions. (Cassim v. Allstate Inc. Co. (2004) 33 Cal.4th 780, 803-804 [“Absent some contrary indication in the record, we presume the jury follows its instruction” ‘“and that its verdict reflects the legal limitations those instructions imposed’”].) And we may no more speculate on how the jury arrived at its decisions than the jury was permitted to speculate on the effect the judgment might have on Cory’s family.
2. The Trial Court’s Failure to Allocate Costs
a. De Novo Standard of Review
The parties again dispute the appropriate standard of review. It is true, as noted by Ford, that a court’s determination of who is the prevailing party is reviewed for abuse of discretion. (Arias v. Katella Townhouse Homeowners Assn., Inc. (2005) 127 Cal.App.4th 847, 852.) But the dispute here does not relate to a prevailing party determination. Ford clearly was the prevailing party. The question is whether it was appropriate to award Ford costs incurred in the defense of the main action, rather than limited to those costs incurred in defending Cory’s cross-complaint. This is a question of law. And ‘“de novo review of . . . a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law. [Citations.]’ [Citation.]” (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 596.)
b. No Liability for Ford’s Costs in Defending Main Action
The action on the complaint was between De’Wayne as plaintiff, and Ford and Cory as defendants. Ford and Cory did not sue each other in the complaint. Cory cross-complained against Ford and Ford was successful in defeating Cory. Although Ford was thus the prevailing party, as to Cory it was only with respect to the cross-complaint.
Neither party was able to cite us to a case dealing with this exact situation. Ford relies on Code of Civil Procedure section 1032, subdivision (a)(4), which allows apportionment of costs under specified circumstances and points out that these circumstances do not include the situation before us. We do not believe the issue is as clear as Ford suggests or that it can be resolved by a simple reference to the statute.
“A cross-complaint is treated as an independent action. It is not dependent on plaintiff’s action. The issues raised by the cross-complaint are treated as ‘completely severable’ from the issues raised by the original complaint and answer.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) 6:503, p. 6-131, citing Bertero v. National General Corp. (1974) 13 Cal.3d 43, 51-52 and Ohio Casualty Ins. Group v. Superior Court (1994) 30 Cal.App.4th 444, 448-449.) Thus, as Cory points out, to hold her liable for costs incurred by Ford in its defense against the complaint would merely provide an incentive for defendants to file a separate action rather than a cross-complaint.
And Cory may not be charged with Ford’s costs incurred in defending the complaint by virtue of her status as a codefendant. “The plaintiff cannot charge an unsuccessful defendant with the costs of the prevailing defendant.” (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 94, p. 626.) Nor is there any authority permitting a prevailing defendant to recover its costs from a codefendant. Ford had the right to recover costs from De’Wayne but waived this right. It is not entitled to now recover these costs from its codefendant.
Ford is entitled to recover costs incurred in defending Cory’s cross-complaint only. The trial court shall determine the amount of such costs and modify the judgment on the cross-complaint against Cory accordingly.
DISPOSITION
The case is remanded to the trial court to determine costs incurred by respondent Ford in connection with its defense of the cross-complaint and modify the judgment for costs as provided for herein. The judgment is otherwise affirmed. The parties shall bear their own costs.
WE CONCUR: SILLS, P. J., O’LEARY, J.