Filed 5/21/13 Tamas v. T.L Pavlich Construction CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


JOE TAMAS,                                                           B236044

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. PC034177)
         v.

T.L. PAVLICH CONSTRUCTION, INC.,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Randy
Rhodes, Judge. Affirmed.
         The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Appellant.
         Horvitz & Levy, David S. Ettinger, Karen M. Bray; Schaffer, Lax, McNaughton &
Chen, Clifford L. Schaffer and Kara A. Pape for Defendant and Respondent.
                                                 _______________
       Joe Tamas was injured when his car collided with a parked motor grader owned by
T.L. Pavlich Construction, Inc. After the jury returned a verdict in favor of Pavlich
Construction, Tamas moved for a new trial on the ground jurors had engaged in
misconduct by using toy cars to reenact the accident. The trial court denied the motion.
We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. The Accident
       From 2001 to 2003 Pavlich Construction was a contractor on a Los Angeles
Department of Water and Power project to install a 96-inch diameter main water line
along Sepulveda Boulevard in the San Fernando Valley. The project required use of
several large construction vehicles including a motor grader, which is a piece of
excavation equipment with a protruding steel blade.
       On December 20, 2002 two of the three southbound traffic lanes on Sepulveda
Boulevard had been incorporated into the median to create a work area—known as work
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area 14—where the accident occurred. The work area was 72 feet wide. At about 5:15
p.m., after construction had been completed for the day, Tamas was driving northbound
when he was sideswiped on the passenger side by a car that was trying to avoid a
collision with a third car. Tamas swerved and collided with a motor grader parked inside
the work area, three feet from the line dividing it from the northbound traffic lane.
Tamas sustained several injuries, including broken ribs and a fractured femur, and
suffered a heart attack. In March 2004 Tamas filed a first amended complaint asserting
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various claims including one for negligence against Pavlich Construction.


1       Tamas and Pavlich Construction sharply disagree whether the width of the
permissible work area was all 72 feet or approximately 62 feet as depicted by cross-
hatching on certain construction documents. We need not resolve this issue. We merely
refer to the entire section of road as the work area for convenience.
2      The Department of Water and Power and the City of Los Angeles, which were
also named in the first amended complaint, entered into a settlement agreement with
Tamas.

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       2. Summary of the Evidence Presented at Trial
       After the jury in the first trial was unable to reach a verdict, trial before a second
jury began in late April 2011. William Beardsley testified he was the traffic engineer
retained by Pavlich Construction to design the traffic control plan for the construction
project. Beardsley‟s design was predicated in part on plans prepared by the Department
of Water and Power indicating the location of the pipe to be installed and the minimum
work area required; specifications from the Los Angeles Department of Transportation as
to the number of lanes that should be available for traffic and the size of the work area
required; and the California Traffic Manual. The plan for work area 14, which was
approved by the Los Angeles Department of Transportation in July 2002, did not require
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use of concrete barriers, known as K-rails, to separate the traffic lane from the work area.
       Javier Corona testified he was a superintendent with Pavlich Construction
responsible for overseeing the Sepulveda Boulevard project in December 2002. He
instructed employees to park all vehicles and equipment “side-by-side,” as close together
as possible and at least two feet from the line dividing the traffic lane from the work
area—the minimum distanced required by the Department of Transportation—to prevent
cars from crossing through the construction site after hours and to increase the visibility
of the equipment. Because of this practice, the motor grader could not be parked farther
than three feet from the traffic lane on the day of the collision. Corona, who testified
inspectors from the Department of Water and Power and Department of Transportation
were at the jobsite daily, agreed with the statement in Pavlich Construction‟s safety
manual that equipment had to be stored in a manner to reduce collisions with vehicles
that run off the road whenever practical. He further testified Pavlich Construction would
have been required to use K-rails to barricade any excavation within five feet of a traffic
lane to prevent a car that might veer out of the traffic lane from falling into the
excavation.


3      K-rails are about 30 inches tall and two feet wide at the bottom narrowing to six
inches at the top.

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       Weston Pringle, a traffic engineer retained by Tamas to testify as an expert
witness, opined Pavlich Construction created a dangerous condition by parking the
construction equipment side by side so close to a traffic lane. Based in part on guidelines
published by the United States Department of Transportation, the California Department
of Transportation (Caltrans) and the American Association of State Highway and
Transportation Officials, Pringle testified the construction equipment should have been
parked in a linear, parallel configuration as close as possible to the center of the median
to create a “clear zone” that would allow “an errant vehicle driver [to] recover without
hitting anything”: “I think the 12 feet that Caltrans referred to would be reasonable. I
would like to see even farther. But it seemed to me, based on what the plans show, there
was a lot of room there to keep the equipment away from the travel way; so the farther,
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the better.” Alternatively, the motor grader should have been shielded with a K-rail,
which is designed to redirect vehicles back onto the roadway with little impact. Pringle
conceded, however, Pavlich Construction did not violate any rule, law or ordinance by
parking the motor grader only three feet from the traffic lane.
       Marc Firestone, an accident reconstruction expert with a Ph.D in physics, testified
on behalf of Pavlich Construction that a 52-foot skid mark in the road demonstrated
Tamas had been driving in the middle lane—not the lane closest to the work area as he
had testified—when he was sideswiped by another car. Tamas‟s car skidded diagonally
at about a 12 degree angle across the lane toward the median and then turned to the left,
hitting the motor grader at a combined angle of about 68 degrees. Firestone testified
Tamas would not have hit the motor grader if his car had continued skidding in the initial
direction. He further testified the damage to Tamas‟s vehicle would have been the same
whether he hit the motor grader or a K-rail because K-rails are designed to deflect


4      John Squier, a traffic engineer retained by Pavlich Construction, opined the
absence of incidents during the 14 months prior to Tamas‟s accident demonstrated there
was no dangerous condition. He also testified the publications Pringle relied on were
only guidelines and their application to a particular jobsite depends on numerous factors,
including field conditions.

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vehicles that collide at angles of 20 degrees or less. The president of Pavlich
Construction, Tommy Pavlich, testified, if Tamas “hadn‟t hit the motor grader, he would
have probably hit a loader if the motor grader wasn‟t parked there. Or if nothing was
parked there, he would have wound up in a 15, 20 foot ditch.”
       3. The Verdict
       On Friday, May 13, 2011, the jury began its deliberations. On May 18, 2011 the
jury announced it was deadlocked and was instructed with CACI No. 5013 to continue
deliberating. After deliberating on May 19, 2011 the jury was excused for a few days so
a juror could attend his son‟s graduation. On May 25, 2011, the day after deliberations
had resumed, the jury asked for clarification of special verdict question number 1—was
Pavlich Construction negligent? Within minutes of being advised to refer to the jury
instruction concerning negligence, the jury reached a 9-3 verdict in favor of Pavlich
Construction.
       4. The Trial Court’s Denial of Tamas’s Motion for New Trial
       Tamas moved for a new trial on the grounds the evidence did not support the
verdict and the jurors had engaged in misconduct by using toy cars to reenact the
accident. An affidavit from juror Kathleen Jacinto stated, “Near the end of our
deliberations, when we were still undecided, a juror brought in toy cars and we attempted
to reconstruct what happened by moving the cars in different directions and trying to
reconstruct where [Tamas‟s] car would have gone if the motor grader had not been
parked where it was at the time of the collision. After we did our testing inside the
deliberation room, we took another vote and for the first time, the vote was 9 to 3 for the
defense.” Affidavits from two other jurors were substantially similar. The court denied
the motion without comment on the juror misconduct issue after hearing argument during
which the attorneys also did not raise the issue.




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                                       DISCUSSION
       1. Law Governing New Trial Motions Based on Juror Misconduct; Standard of
          Review
       “The authority of a trial court in this state to grant a new trial is established and
circumscribed by statute.” (Oakland Raiders v. National Football League (2007)
41 Cal.4th 624, 633.) Code of Civil Procedure section 657 identifies seven grounds for a
new trial motion, including jury misconduct. When a party seeks a new trial based on
jury misconduct, the court undertakes a three-step inquiry. First, the court must
determine whether the declarations offered in support of the motion are admissible under
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Evidence Code section 1150. If they are, the court must next consider whether the facts
establish misconduct. Finally, assuming misconduct is found, the court must determine
whether it was prejudicial. (People v. Duran (1996) 50 Cal.App.4th 103, 112-113;
People v. Hord (1993) 15 Cal.App.4th 711, 724.) “Juror misconduct raises a rebuttable
presumption of prejudice . . . .” (People v. Dykes (2009) 46 Cal.4th 731, 809.) The
presumption of prejudice “may be rebutted by an affirmative evidentiary showing that
prejudice does not exist or by a reviewing court‟s examination of the entire record to
determine whether there is a reasonable probability of actual harm to the complaining
party resulting from the misconduct.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d
388, 417.)
       Whether juror misconduct has occurred is “a legal question we review
independently.” (People v. Collins (2010) 49 Cal.4th 175, 242 (Collins)). However, we


5      Under Evidence Code section 1150, subdivision (a), only evidence of “„objective
facts‟” is admissible to prove juror misconduct. (In re Stankewitz (1985) 40 Cal.3d 391,
397.) Evidence regarding how such objective facts may have influenced jurors‟
subjective thought processes is inadmissible to impeach a verdict. (Ibid.) “Thus, jurors
may testify to „overt acts‟—that is, such statements, conduct, conditions, or events as are
„open to sight, hearing, and the other senses and thus subject to corroboration‟—but may
not testify to „the subjective reasoning processes of the individual juror . . . .‟” (Id. at
p. 398.) “This limitation prevents one juror from upsetting a verdict of the whole jury by
impugning his own or his fellow jurors‟ mental processes or reasons for assent or
dissent.” (People v. Steele (2002) 27 Cal.4th 1230, 1261.)

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“„accept the trial court‟s credibility determinations and findings on questions of historical
fact if supported by substantial evidence.‟” (Ibid.) Similarly, whether misconduct is
prejudicial is reviewed independently as a mixed question of law and fact when the trial
court denies a motion for new trial. (People v. Ault (2004) 33 Cal.4th 1250, 1260-1263.)
       2. The Jury Did Not Commit Misconduct by Using Toy Cars To Reenact the
          Accident
       For more than a century courts have addressed the kinds of experiments jurors
may conduct during deliberations: “From the venerable authority of Higgins [v. L.A. Gas
& Electric Co. (1911) 159 Cal. 651] and its progeny, several principles emerge. Not
every jury experiment constitutes misconduct. Improper experiments are those that allow
the jury to discover new evidence by delving into areas not examined during trial. The
distinction between proper and improper jury conduct turns on this difference. The jury
may weigh and evaluate the evidence it has received. It is entitled to scrutinize that
evidence, subjecting it to careful consideration by testing all reasonable inferences. It
may reexamine the evidence in a slightly different context as long as that evaluation is
within the “„scope and purview of the evidence.‟” [Citation.] What the jury cannot do is
conduct a new investigation going beyond the evidence admitted.” (Collins, supra,
49 Cal.4th at p. 249 [holding juror‟s use of home computer to make a diagram of relative
positions of defendant and victim at time of shooting and demonstration during
deliberations how victim may have sustained wound with downward trajectory not
misconduct].)
       Tamas concedes jurors were permitted to enact physical demonstrations in Collins,
supra, 49 Cal.4th 175 and People v. Cooper (1979) 95 Cal.App.3d 844, 853-854
(reenacting demonstration by arresting officer showing how defendant tossed bag of
heroin). Relying in large part on Bell v. State of California (1998) 63 Cal.App.4th 919
(Bell), a decision by our colleagues in Division Four of this court, Tamas attempts to
distinguish these cases on the ground the demonstrations involved relatively simple
variables that could be re-created and were supported by the physical evidence—the
distance between the shooter and the victim; their height and body position—whereas


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reconstruction of an automobile accident involves the interplay of physical forces that
cannot be simulated in the jury room such as the mass, velocity and curving trajectories
of the vehicles. Bell, however, cannot be reduced to such a simple proposition broadly
eliminating a jury‟s ability to reconstruct an automobile accident using demonstrative
aids.
        In Bell plaintiff James Bell sustained a shoulder injury when his wrists were held
behind his back up to his neck, forcing him to bend over at 90 degrees and stand on his
toes, during a wrongful arrest. (Bell v. State of California, supra, 63 Cal.App.4th at
p. 925.) During deliberations a juror reported that she and another person (not a juror)
“„had attempted to recreate the sequence of events when [Bell‟s] arms were placed up
behind his back. She claimed that she fell over when she tried to do it. Based on this out
of court [reenactment] of events she expressed her disbelief in [Bell‟s] testimony on this
point and therefore as to his entire testimony.‟” (Id. at p. 930.) The trial court, in a
decision affirmed on appeal, granted Bell‟s motion for new trial, finding it was
misconduct on several grounds: “„first, the juror was obviously discussing the case
outside the court with other persons in violation of the direct order of the court; second,
the juror attempted to simulate events at the scene; and, third, the fact of the experiment
and its results were passed onto other jurors.‟” (Id. at pp. 932-933.) With respect to the
reenactment itself the trial court in part found, “„The incident the juror was attempting to
replicate is not subject to experimentation because of the inability to accurately duplicate
critical factors such as the size, strength and height of the individuals, the amount of force
involved, and the specific or unusual physical characteristic of each individual involved.”
(Id. at p. 932.)
        Unlike Bell in which the juror was attempting to realistically duplicate—outside
the presence of the other jurors with a person of unknown height and weight—the actual,
physical encounter between Bell and police officers to determine if it could have
happened the way Bell had testified, here the jurors were not trying to realistically
reenact the collision. Rather, as described in juror declarations, they were using the toy



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cars to “reconstruct what happened by moving the cars in different directions.” Given
the exceedingly general nature of the juror declarations, it is a reasonable conclusion the
jurors were simply creating a visualization of the trial testimony to assist them in
determining, among other disputed issues, whether Tamas was driving in the lane closest
to the work area, as he had contended, or whether, as Firestone opined, Tamas had been
driving in the middle lane when he was sideswiped, skidded diagonally and then made an
unwarranted sharp turn to his left, putting him on a collision course with the motor grader
that he would not have had absent his own negligence. This sort of reenactment did not
require the reliable simulation of difficult physics concepts as Tamas suggests.
       Tamas further contends the experiment crossed the line between a permissible
visualization of the evidence and an impermissible “new investigation going beyond the
evidence admitted” (Collins, supra, 49 Cal.4th at p. 249) when jurors attempted to
determine what would have happened if the motor grader had not been parked where it
was because there was insufficient evidence admitted on this “counter-factual scenario.”
Tamas argues Firestone‟s testimony was strictly limited to describing how the accident
occurred and he never described what might have happened if the motor grader had been
parked in a different location. Tamas further argues Tommy Pavlich‟s spontaneous
utterance during cross-examination that Tamas would have hit another piece of
equipment or ended up in a ditch if the motor grader were in a different location was
simply a hypothesis unsupported by any data.
       Tamas‟s argument is without merit. What would have happened if the motor
grader was parked in a different location is essentially the same question as whether the
motor grader‟s location caused Tamas‟s harm, an essential element of Tamas‟s case in
chief. Indeed, during closing argument Tamas‟s counsel argued, “What caused the harm
is parking a motor grader there that caused the harm, and that‟s what you have to decide
as to the cause of the harm.” Although Corona testified he did not recall what was parked


6      Juror Lewis similarly declared, “a female juror brought in some toy vehicles and
the jurors reconstructed how the accident happened.”

                                              9
next to the motor grader at the time of the accident, Corona had testified all the
construction equipment was parked next to each other, side by side; and pictures of the
construction site were admitted into evidence. In conjunction with Firestone‟s testimony
as to the angle Tamas‟s car skidded after being sideswiped, the sharp veer to the left
based on the skid mark and the estimated speed of travel, examining the evidence in the
“slightly different context” of the absence of the motor grader was “within the „“scope
and purview of the evidence.‟”” (Collins, supra, 49 Cal.4th at p. 249.) In sum, based on
the spare juror declarations as to the use of the toy cars, Tamas has failed to carry his
burden of establishing juror misconduct. (See Donovan v. Poway Unified School Dist.
(2008) 167 Cal.App.4th 567, 625.)
                                      DISPOSITION
       The judgment is affirmed. Pavlich Construction is to recover its costs on appeal.



                                                  PERLUSS, P. J.

       We concur:


              ZELON, J.


              JACKSON, J.




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