Filed 4/28/15 Storz v. Pine Mountain Club Prop. Owners Assn. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

ARTHUR STORZ, et al.,
                                                                                           F067867
         Plaintiffs and Respondents,
                                                                              (Super. Ct. No. CV-270278)
                   v.

PINE MOUNTAIN CLUB PROPERTY                                                              OPINION
OWNERS ASSOCIATION, INC.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Kern County. Lorna H.
Brumfield, Judge.
         Sedgwick, Martin J. O’Leary, Douglas J. Collodel; Soltman, Levitt, Flaherty &
Wattles and John S. Levitt for Defendant and Appellant.
         Law Office of James E. Noriega and James E. Noriega for Plaintiffs and
Respondents.
                                                        -ooOoo-
         Devin Storz, the 21-year-old son of Arthur and Antoinette Storz,1 was killed when
a large monument Ponderosa pine next to their home blew over during a storm and fell on

         1As the plaintiffs and their sons share the same last name, we will refer to them by
their first names for clarity. No disrespect is intended.
the bedroom where Devin was sleeping. Arthur and Antoinette (jointly the Storzes) sued
Pine Mountain Club Property Owners Association, Inc. (Pine Mountain), alleging that
Pine Mountain was negligent because it refused to allow them to remove the tree that
caused Devin’s death.2 At the conclusion of the jury trial, the jury returned a defense
verdict in favor of Pine Mountain, finding that while Pine Mountain was negligent, its
negligence was not a substantial factor in causing Devin’s death. The Storzes moved for
a new trial based on several grounds, including juror misconduct, an erroneous special
jury instruction, and inconsistent verdict. The trial court granted the motion on the basis
of juror misconduct. Pine Mountain appeals the trial court’s order granting a new trial.
       We conclude that the trial court erred by granting a new trial based on
inadmissible statements in juror declarations and the new trial order cannot be affirmed
on other grounds. We therefore reverse the order granting a new trial and affirm the
judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
       The Storzes had two sons, Ian and Devin. In December 1993, the Storzes
purchased a home in the community known as Pine Mountain Club, and the family
moved in the following year. Pine Mountain managed the community, which consisted
of approximately 3,070 lots, 2,500 of which were developed primarily with single family
dwellings. When they purchased the property, the Storzes received copies of the
governing covenants, conditions and restrictions (CC&Rs) and were aware of the
CC&Rs’ terms and obligations. They also received copies of the Pine Mountain Club
Environmental Control Code (ECC).
       The CC&Rs and ECC impose various obligations on homeowners. Among other
duties, homeowners are required to maintain their property, including the trees. The


       2The complaint also included a cause of action for premises liability, which the
Storzes dismissed at trial.


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Storzes understood their property maintenance obligations. The CC&Rs and ECC allow
for tree removal only with the express permission of the Environmental Control Officer
(control officer) or the Environmental Control Committee (committee). Pine Mountain
employed Robert Clark as its control officer beginning sometime in 2004. Clark’s duties
included patrolling the development and checking for violations of the ECC, such as dead
trees, cars up on jacks, fire hazards, brush conditions or houses that needed paint. As part
of his duties, Clark drove around the community visually inspecting projects, homes and
lots. The only education or training Clark had that qualified him to become the control
officer was years of working with the public; he did not have a degree in trees or forestry,
and had never worked in a nursery or with an arborist.
       On the morning of January 18, 2010, a strong wind caused an approximately 100
foot tall monument Ponderosa pine weighing approximately 10,000 pounds (the pine
tree), which was located 10 to 15 feet from the Storzes’ home, to fall onto the home,
killing Devin. Expert witnesses for each party, both of whom were certified arborists,
testified the pine tree had extensive root rot. They disagreed, however, as to whether
there were any above-ground signs indicating that the pine tree was diseased or dying.
       The Storzes’ expert, John Sevier, opined the pine tree was dying, as the pine tree
had really limited, rotted roots which caused the pine tree to go into decline and the wood
to start getting dry, which in turn attracted beetles that ate through the pine tree from the
inside out. According to Sevier, while there were no visible signs of root rot, the dry
wood and beetles would have been very visible from above-ground; the process had been
going on for about five years. When the wind blew the green part of the pine tree’s
canopy that the beetles had not yet eaten, the roots could not hold the pine tree and it fell
over. Sevier testified that if the still-green branches of a tree with a bad root problem
were thinned out, that tree might stand another year.
       Pine Mountain’s expert, Edwin Slowik, opined that about 60 percent of the pine
tree’s root ball was decayed and dead due to a fungus. The pine tree fell due to a

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combination of its damaged root system and the winds. Slowik explained that when roots
decay, they lose their ability to hold a tree up, and when strong winds come in unusual
directions, the wind can put enough pressure on a tree to topple it. This is due to the sail
effect; if there is a full canopy and strong wind, the tree will catch the wind. If a tree is
thinned out, however, it is easier for the wind to go around or through it, and there is not
as much force put on the tree.
       According to Slowik, when a tree’s roots die due to root rot or any root problem,
visible signs typically start at the top of the tree, where the tree begins to brown out or
change color. While signs of a problem may become visible when approximately half of
the roots become infected, the fungus is subtle and a high percentage of the root system
can be infected without any visible signs for “quite a while.” Visibility depends on the
condition of the roots that are healthy, and whether they can provide enough water and
nutrients to the treetop. From what Slowik observed of the fallen pine tree and based on
photographs provided him, it appeared the pine tree still had a healthy green canopy and
he did not see any evidence of beetle infestation. He also did not see other visible signs
of root rot, such as conks or a black fungus.
       There were a lot of trees on the Storzes’ property. To maintain the trees, the
Storzes had removed dead trees (including two that Pine Mountain required them to
remove) and, from time to time, Arthur would trim the trees himself or hire a tree
trimmer. He only trimmed trees when he saw dead branches. Sometime between 2005
and 2007, Arthur got a quote from Joseph Kowalski, a professional tree trimmer, to take
down the pine tree or trim it. Arthur did not hire Kowalski to trim the pine tree because
he did not see any reason to trim it then. The pine tree appeared healthy to Kowalski
when he gave the quote. The last time Kowalski trimmed trees on the property was four
or five years before Devin’s death; he basically removed dead branches. Kowalski
recommended that Arthur trim the pine tree; he told Arthur the dead branches should be



                                                4.
removed and the canopy thinned out so the dead branches would not damage the house if
they came down.
       Over the years, the Storzes had made requests to cut down the pine tree, but were
told it could not be taken down as it was a monument tree that appeared healthy.
Sometime before Clark was the control officer, Arthur told the control officer, who he
believed was Lee Benevides, he wanted to remove the pine tree and another tree next to
it. The control officer told him the committee would have to come and look at the tree
before giving its decision. Four to five people on the committee came out to the Storzes’
property to view the trees. Arthur told them he wanted to remove the pine tree because
he “was afraid of it”; he was concerned the beetles were spreading and that the pine tree
was leaning toward the house. The committee, however, looked at both trees and told
him on the spot that he could not take them out because they were still green and the pine
tree was perfectly healthy. Arthur admitted the pine tree did not appear to be diseased or
unhealthy.
       The next specific request occurred sometime between 2005 and 2008, when the
Storzes wanted to build an addition to the home that would require removing the pine tree
and some other trees. They had architectural plans drawn up and got a bid from
Kowalski to remove the trees. Arthur then asked Clark if they could remove the trees so
they could expand the house, but Clark said no because the trees were healthy and green.
The Storzes dropped the plans and never did the addition, as it was impossible unless the
trees were gone.
       Finally, in May 2009, the Storzes received a letter from Pine Mountain telling
them to cut down a dead tree that was near the pine tree, as the tree presented a fire
hazard. Arthur and Ian talked to Clark to ask if they could take out the pine tree as well.
Arthur told Clark the tree did not look healthy to him and it was leaning more. Clark said
he would come out to the property. Clark finally came out and met with Arthur; Clark
told him the tree was healthy and he could not take it down because Clark could not get

                                             5.
approval. Dennis Gardner, a friend of Arthur’s, overheard the conversation, which was
about a tree that was close to the house that was okay to “drop” but the Storzes were
concerned with another tree that Clark would not allow them to “drop” because the tree
was still alive and did not need to be cut down.
         In the summer of 2009, with the help of Ian, Benevides, Frank Sanchez, and a
friend, Matt Peternel, Arthur took out the tree referenced in the May 2009 letter.
According to Arthur and Ian, at that time, Sanchez and Benevides, who were on the board
of directors, told the Storzes they would not let them take “those down,” as they were still
green, and if they took the pine tree down without permission, there would be a big fine
and a lien would be placed on the house.
         According to Clark, he had both the authority and the duty to tell homeowners to
remove dead trees, including dead monument trees. He also could give homeowners
permission to remove live trees up to a certain size. Although under the ECC he had
authority to grant requests to cut down monument trees, such as a Ponderosa pine, it was
his practice not to exercise that authority on his own as he wanted the committee
involved in the decision. If someone came to him and explained why they wanted a tree
removed, he would get the committee to visit the site and talk to the owner. The
committee typically would allow the owner to take the tree down, but would expect some
kind of recompense. Clark had never seen the committee say no to a request to remove
trees.
         Clark denied meeting with the Storzes on their property in 2007 to look at the pine
tree or that he went on the property in 2009 to talk to them about the pine tree. He never
noticed the pine tree leaning toward the house during his drive-by inspections. He did
not recall Arthur ever telling him he was concerned the pine tree might fall because it was
leaning. Clark was not aware of the pine tree before it fell; the pine tree had never been
discussed with him before then. Between August 31, 2009 and January 18, 2010, Clark
did not see any tree on the property that appeared unhealthy.

                                              6.
       Clark testified that if Arthur had asked him for permission to remove a monument
tree that appeared healthy, he would not have told him no on the spot and instead would
have gone to the committee. According to committee members Mary Ann Knapp and
Tom Yancey, the committee does not make a decision about tree removal requests when
the committee is on the property inspecting the tree; instead, the committee votes at a
formal meeting held later that day. The committee’s written decision is sent to the board
for final approval. If a homeowner’s request is denied, the committee sends a letter to
the homeowner advising that the request has been denied and of the homeowner’s appeal
rights. Yancey had never been told, and was not aware, that the committee ever told
Arthur on his property that he could not take down any tree.
       If the committee denied a request to remove a tree, there was an appeal process;
the homeowner could go directly to the board of directors. Despite the availability of
appeal rights, the Storzes never submitted an appeal. The Storzes claimed this was
because they did not know they had such a right. Arthur never hired an arborist to come
and check the tree, although around 2007 or 2008, Peter Green, an arborist who was
doing work for Pine Mountain, looked at the pine tree as a favor to Arthur and gave him
his opinion. Green told the Storzes, “if it’s not broke, don’t fix it.”
At one time Arthur said he wanted the pine tree down and did not care what “the
clubhouse” said. While the Storzes were unaware before the summer of 2009 that there
was a penalty for unapproved removal, they did not take the pine tree down because the
committee continued to say no.
       The Jury Instructions and Verdict
       The trial court instructed the jury before closing arguments. Included among the
instructions was the following damage instruction, CACI No. 3900, which told the jury:
“If you decide that Mr. and Mrs. Storz have proved their claim against Pine Mountain
Club, you also must decide how much money will reasonably compensate them for the
harm. This compensation is called ‘damages.’ [¶] The amount of damages must include

                                              7.
an award for each item of harm that was caused by Pine Mountain Club’s wrongful
conduct, even if the particular harm could not have been anticipated. [¶] Mr. and Mrs.
Storz do not have to prove the exact amount of damages that will provide reasonable
compensation for the harm. However, you must not speculate or guess in awarding
damages.”
       The trial court also instructed the jury about the respective duties of the judge and
jury, including that the judge’s duty was to instruct on the applicable law, while the jury
was directed to follow the judge’s instructions. The jury also was informed that it would
have a copy of the instructions in the jury room. Then the trial court instructed the jury:
“I will now tell you the law that you must follow to reach your verdict. That’s what I’ve
been doing and will continue to do so you must follow the law exactly as I give it to you
even if you disagree with it. If the attorneys have said anything different about what the
law means, you must follow what I say. [¶] In reaching your verdict, do not guess what I
think your verdict should be from something I may have said or done.”
       In addition, the trial court explained the special verdict form and instructed the
panel as follows: “I will give you a verdict form with questions you must answer. I have
already instructed you on the law that you are to use in answering these questions. You
must follow my instructions and the form carefully. You must consider each question
separately. Although you may discuss the evidence and the issues to be decided in any
order, you must answer the questions on the verdict form in the order they appear. [¶]
After you [have] answered a question, the form tells you what to do next. All 12 of you
must deliberate on and answer each question. At least nine of you must agree on an
answer before all of you can move to the next question. However, the same nine or more
people do not have to agree on each answer. [¶] When you have finished filling out the
form, your presiding juror must write the date and sign it at the bottom of the last page
and then notify the bailiff that you are ready to present your verdict in the courtroom.”



                                             8.
       After closing arguments, the trial court provided final instructions, which directed
the jurors regarding what to do when they began their deliberations and told them they
could ask the trial court to address questions they had about the evidence or about “the
laws that apply to the case.” During deliberations, the jury submitted two questions about
evidentiary matters, but did not ask the trial court to clarify any of the applicable law.
       In pertinent part, the special verdict form asked the jury to answer: (1) “Was Pine
Mountain Club Property Owner’s Association negligent[?]” and, if the answer was “yes”
then to answer (2) “Was Pine Mountain Club Property Owner’s Association’s negligence
a substantial factor in causing the death of Devin Storz?” If they answered “no” to the
second question, the jury was directed to “stop here, answer no further questions, and
have the presiding juror sign and date this form.”
       During closing arguments, counsel for both sides walked the jury through the
verdict form, providing their respective suggestions on how to respond to the questions
on the form. The Storzes’ counsel argued the jury should answer “yes” to the question of
whether Pine Mountain was negligent because (1) it refused to let the Storzes cut down
the pine tree, and (2) Clark was not in a good position to evaluate a tree, as he was not
trained or educated, and he should have erred on the side of “goodness and safety[,]”
rather than on the side of the tree. He further argued Pine Mountain’s negligence was a
substantial factor in causing Devin’s death because, had the Storzes been allowed to cut
down the pine tree, the pine tree would not have fallen, and the Storzes’ damages were
$2.5 million per parent. In contrast, Pine Mountain’s counsel argued the jury should
answer “no” to the first and second questions. However, counsel suggested that, if the
jury answered “yes” to both questions and “was going to put a number” down as the
Storzes’ damages, that number should be $150,000 each.
       After deliberations, the jury returned its verdict for Pine Mountain. On the special
verdict form, the jury answered the first question “Yes,” finding Pine Mountain
negligent, but answered the second question “No,” finding that its negligence was not a

                                              9.
substantial factor in causing Devin’s death. No other questions on the form were
answered and the presiding juror signed and dated the form. Polling revealed the jury
voted 11 to one on both questions, albeit with a different juror voting in the negative.3
The trial court subsequently entered judgment in Pine Mountain’s favor.
       Motion for New Trial
       The Storzes timely filed their notice of intention to move for a new trial,
enumerating all the grounds set forth in Code of Civil Procedure section 657.4 They then
filed their motion for new trial, in which they argued a new trial should be granted on the
following grounds: (1) the trial court committed an error of law by instructing the jury
about the nondelegable duty owed by the landowner (§ 657, subd. 7); (2) jury misconduct
and irregularity in the jury’s proceedings (§ 657, subds. (1) & (2)); (3) insufficiency of
the evidence to support the verdict (§ 657, subd. (6)); and (4) the verdict was inconsistent,
contrary to instructions, and legally insufficient, and therefore against the law (§ 657,
subd. (6)).
       With their motion, the Storzes submitted five juror declarations. The declarations
principally stated that the jury began its deliberations on Friday, March 22, 2013, when it
elected the foreman; no vote was taken that day and deliberations resumed on Monday,
March 25; the jury initially was unable to reach a consensus as to question number one on
Pine Mountain’s negligence, with the vote being eight to four in favor of negligence; and
the foreman then advised the jurors that if the jury voted yes to the first question and no
to the second, then the judge would decide the amount of money the Storzes would
receive, as well as the remaining issues on the verdict form.




       3   According to Pine Mountain, the foreman voted “No” to question one.
       4Subsquent statutory references are to the Code of Civil Procedure unless
otherwise stated.


                                             10.
       Four jurors placed the foreman’s statement at a point in time after the jury’s initial
vote of eight to four for a finding of Pine Mountain’s negligence,5 while the fifth juror
declared it was made after the panel had already voted 11 to one to find Pine Mountain
negligent. Three jurors also declared that the foreman made the following additional
comments: (1) one juror said the foreman also stated that “the judge with her experience
was best to decide the remaining issues”; (2) another juror stated the foreman added that
“the judge, who was better able, would make the decision as to the other issues on the
verdict form”; and (3) a third juror said the foreman added that “the judge was more
qualified than the jury to make the determination as to the amounts to be received by Mr.
and Mrs. Storz.” One juror further declared that when he walked the foreman to his car
after the verdict was read, the foreman said that “he felt badly and that he had
misunderstood the jury instructions.”
       Pine Mountain opposed the motion, contending (1) the jury was instructed
properly; (2) there was no juror misconduct because the juror declarations were
inadmissible and, in any event, the foreman’s statement did not amount to misconduct;
(3) the evidence supported the jury’s verdict; and (4) the verdict was not against the law.
Pine Mountain also filed detailed objections to each declaration, primarily asserting the
declarations were inadmissible under Evidence Code section 1150, as they reflected the
jurors’ thought processes.
       Following oral argument, the trial court took the matter under submission. The
trial court subsequently entered a written ruling in the court’s minutes in which it granted
the motion on the ground of juror misconduct, stated the remainder of the motion was
moot, and ordered the Storzes to prepare an order pursuant to California Rules of Court,
rule 3.1312. In the formal order, the trial court first ruled on Pine Mountain’s evidentiary
objections, finding that the foreman’s statement about the consequences of answering

       5   Three of these jurors declared the foreman repeated his statement.


                                             11.
question number one “yes” and question number two “no” was admissible as an
erroneous statement of the law, but sustaining objections to other statements in the jurors’
declarations as to their thought processes.6
       In so ruling, the trial court explained: “[The foreman’s statement] is an inaccurate
statement of law and the five jurors who filed declarations expressed surprise and shock
that the [Storzes] did not recover. This is an objectively verifiable event subject to
corroboration. [One juror] was so surprised she called counsel for [the Storzes]. It is
very difficult to understand how any juror could have believed this representation by the
foreperson based on the jury instructions, opening statements, and closing argument
where the attorneys went over the verdict forms in detail. If true then the verdict is a
miscarriage of justice.” The trial court found the declarations established “that the jurors
were assured that [the Storzes] would make a financial recovery based on the jury finding
that [Pine Mountain] was negligent even if they marked “No” for question #2[,]” and that
the foreman admitted he misunderstood the instructions. Based on this evidence, the trial
court found prejudicial misconduct had occurred because the five jurors did not follow



       6  For example, the trial court sustained objections under Evidence Code section
1150 to the jurors’ statements such as (1) after hearing the foreman’s statement, “we
voted 11 to 1 ‘Yes’ to question no. 1, and 11 to 1 ‘No’ as to question no. 2. It was my
understanding, as well as other members of the jury who were in agreement, that the
judge would then decide the remainder of the issues”; and (2) “[s]ince we were assured
that the Storz[es] would receive monies we voted 11 to 1 to answer ‘no’ to question
‘no. 2.’” The trial court also sustained relevancy objections to statements such as:
(1) after learning the result of the verdict, “I was absolutely shocked to learn that the
Storz family would receive nothing and that the Pine Mountain Club Association was not
held accountable. Shortly thereafter, I contacted [the Storzes’ attorney’s] office on
April 5, 2013, and advised him as to what had occurred”’; and (2) after learning the
Storzes would receive no money as a result of the verdict, “I was shocked to hear this and
in looking at my fellow jurors, they had expressions of surprise on their faces. I felt that
we had been totally misled by the foreman’s comments. . . . I was very upset upon
learning the result of our verdict, and still am.”



                                               12.
the law due to the foreman’s erroneous statement that the trial court would determine
damages, thereby abdicating their duty.
                                       DISCUSSION
       Pine Mountain’s sole contention on appeal is that the trial court erred by granting
the Storzes’ motion for new trial on the grounds of juror misconduct. The Storzes assert
the trial court properly found juror misconduct demanded a new trial and, in any event,
other grounds support the trial court’s order.
       Jury Misconduct
       The trial court can vacate a verdict and grant a new trial if there is “[m]isconduct
of the jury” or an “[i]rregularity in the proceedings of the ... jury.” (§ 657.) On a new
trial motion asserting jury misconduct, the moving party bears the burden to establish that
jury misconduct occurred and that the misconduct was prejudicial. (Donovan v. Poway
Unified School Dist. (2008) 167 Cal.App.4th 567, 625; Ovando v. County of Los Angeles
(2008) 159 Cal.App.4th 42, 57.)
       “‘In ruling on a request for a new trial based on jury misconduct, the trial court
must undertake a three-step inquiry. [Citation] First, it must determine whether the
affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible,
the trial court must determine whether the facts establish misconduct. [Citation.] Lastly,
assuming misconduct, the trial court must determine whether the misconduct was
prejudicial.’” (Sierra View Local Health Care Dist. v. Sierra View Medical Plaza
Associates (2005) 126 Cal.App.4th 478, 484.)
       An “irregularity of the proceedings” is a catch-all phrase referring to any act that
(1) violates the right of a party to a fair trial and (2) which a party “cannot fully present
by exceptions taken during the progress of the trial, and which must therefore appear by
affidavits.” (Gay v. Torrance (1904) 145 Cal. 144, 149; accord Gibbons v. Los Angeles
Biltmore Hotel (1963) 217 Cal.App.2d 782, 791.) Jury misconduct during deliberations



                                              13.
that is brought to the attention of a party after the verdict is rendered constitutes an
“irregularity of the proceedings” of the jury for purposes of a motion for new trial.
       “We review an order granting a new trial on the grounds of juror misconduct for
abuse of discretion. [Citation.] ‘[A]n order granting, as opposed to denying, a new trial
is reviewed liberally, particularly with regard to the trial court’s finding that an error or
irregularity in the original trial was prejudicial.’” (People v. Engstrom (2011) 201
Cal.App.4th 174, 182-183 (Engstrom), citing People v. Ault (2004) 33 Cal.4th 1250,
1255.) We review the trial court’s rulings on admissibility of evidence under the abuse of
discretion standard of review. (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.)
“In determining misconduct, ‘[w]e accept the trial court’s credibility determinations and
findings on questions of historical fact if supported by substantial evidence.’” (People v.
Collins (2010) 49 Cal.4th 175, 242 (Collins).) However, we review independently
whether those facts constitute misconduct. (Ibid.; see also Engstrom, supra, 201
Cal.App.4th at pp. 182-183.)
       We begin with the admissibility of the jurors declarations. Evidence Code section
1150, subdivision (a) provides: “Upon an inquiry as to the validity of a verdict, any
otherwise admissible evidence may be received as to statements made, or conduct,
conditions, or events occurring, either within or without the jury room, of such a
character as is likely to have influenced the verdict improperly. No evidence is admissible
to show the effect of such statement, conduct, condition, or event upon a juror either in
influencing him to assent to or dissent from the verdict or concerning the mental
processes by which it was determined.”
       Evidence Code section 1150 allows the court to consider evidence of overt acts,
while preventing the court from delving into the juror’s mental processes. (Smoketree-
Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724,
1745.) “This statute distinguishes ‘between proof of overt acts, objectively ascertainable,
and proof of the subjective reasoning processes of the individual juror, which can be

                                              14.
neither corroborated nor disproved. . . .’ [Citation.] ‘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. The only improper influences that may
be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those
open to sight, hearing, and the other senses and thus subject to corroboration.’”
(People v. Steele (2002) 27 Cal.4th 1230, 1261 (Steele).)
       Cases involving the statement of a juror during deliberations require a careful
application of the rule of Evidence Code section 1150. If the statement injects into the
deliberations evidence or law obtained from a source other than in court, the statement is
an admissible overt act of misconduct. (See, e.g., In re Stankewitz (1985) 40 Cal.3d 391,
399-400 (Stankewitz) [juror made misstatement of law based on his experience as a
police officer]; People v. Honeycutt (1977) 20 Cal.3d 150, 157 (Honeycutt) [juror
consulted attorney regarding questions of law involved in the case].) If, on the other
hand, the juror’s statement reflects his or her deliberative process based upon the law as
instructed by the court and evidence received in court, the statement is not admissible to
impeach the verdict. (See Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677,
1683-1684 (Mesecher) [jurors’ misstatement on the law of battery was deliberative error
in the collective mental process].) This distinction implements the policy favoring the
“‘free exchange of ideas during the jury’s deliberations.’” (People v. Cox (1991)
53 Cal.3d 618, 700 (Cox), 7 citing People v. Elkins (1981) 123 Cal.App.3d 632, 638
(Elkins).)
       One example of the distinction is found in Steele, supra, 27 Cal.4th 1230, where
our Supreme Court held that Evidence Code section 1150 renders inadmissible the
declaration of jurors stating they would not have voted for the death penalty had they


       7Cox was disapproved on another point in People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22.


                                            15.
believed the court’s instruction concerning life without the possibility of parole. The
Steele court explained: “‘[E]vidence that the jurors misunderstood the judge’s
instructions, were influenced by an improper remark of a fellow juror, assented under an
erroneous belief that the judge would use clemency or had the legal right to vary the
sentence, or had been influenced by inadmissible evidence is simply of no legal
significance. [Citation.] In short, under both the common law and Evidence Code
section 1150, the jurors’ motives, beliefs, misunderstandings, intentions, and the like are
immaterial.’” (Id. at p. 1264.)
       An opposite example is found in Stankewitz, supra, 40 Cal.3d 391. There, two
jurors declared that another juror stated “that he had been a police officer for over 20
years; that as a police officer he knew the law; that the law provides a robbery takes place
as soon as a person forcibly takes personal property from another person, whether or not
he intends to keep it; and that as soon as petitioner took the wallets at gunpoint … he
committed robbery, whether or not he intended to keep them.” (Id. at p. 396.) Our
Supreme Court reversed the judgment, explaining in relevant part: “When extraneous law
enters a jury room – i.e., a statement of law not given to the jury in the instructions of the
court – the defendant is denied his constitutional right to a fair trial unless the People can
prove that no actual prejudice resulted.” (Id. at p. 397.) The Court determined the juror’s
statement could be received because the statement itself constituted misconduct. (Id. at
p. 398.) The juror “violated the court’s instructions and ‘consulted’ his own outside
experience as a police officer on a question of law. Worse, the legal advice he gave
himself was totally wrong. Had he merely kept his erroneous advice to himself, his
conduct might be the type of subjective reasoning that is immaterial for purposes of
impeaching a verdict. But he did not keep his erroneous advice to himself; rather,
vouching for its correctness on the strength of his long service as a police officer, he
stated it again and again to his fellow jurors and thus committed overt misconduct.” (Id.
at pp. 399-400.)

                                             16.
       As these cases demonstrate, while a juror’s erroneous statement of the law may be
an overt act, a juror’s misunderstanding of the trial court’s instructions, whether stated or
unstated, involves the juror’s subjective reasoning process and is inadmissible under
Evidence Code section 1150. Here, as in Stankewitz, the juror did not keep his
misunderstanding of the law to himself. And here, as in Honeycutt, supra, 20 Cal.3d 150,
158, the misunderstanding of the law was that of the foreman, “whose perceptions and
conclusions may often sway other jurors.” But there is no indication that the foreman’s
misunderstanding of the law was based on his own experience or expertise. Nor was
there any evidence that his misunderstanding was obtained from a source extraneous to
the judicial process. Instead, the declarations offered in support of the motion for new
trial demonstrated merely that at one point in the deliberations the foreman stated the law
as he misunderstood it based upon the instructions given by the trial court. As the trial
court recognized in its ruling, the foreman admitted he misunderstood the jury
instructions.
       Nothing prevented the other jurors from reviewing the written instructions and
verdict form themselves to determine whether they agreed with the foreman’s reasoning.
The foreman’s statement reflected his subjective mental processes during deliberations
and the mere fact the statement was made does not amount to misconduct. At most, it is
but one manifestation of the human frailties from which few verdicts could withstand
such close scrutiny. (People v. Riel (2000) 22 Cal.4th 1153, 1219.) The subjective
nature of that process is not changed simply because other jurors heard, remembered and
reported the foreman’s verbalization of his reasoning. (Elkins, supra, 123 Cal.App.3d at
p. 638.) As the appellate court observed in Mesecher, supra, 9 Cal.App.4th at page 1684:
“Here, the juror’s statements themselves did not constitute misconduct, nor do they
reflect an outside influence brought into the courtroom. Rather, the alleged misconduct
arose from the way in which the jury interpreted and applied the instructions. Such
evidence is inadmissible.”

                                             17.
       Based in part on evidence which the trial court itself excluded, such as that the
jurors “expressed surprise and shock” that the Storzes did not recover and one juror
called the Storzes’ counsel due to her surprise, the trial court found misconduct based on
its conclusion that the jurors did not follow the law. On appeal, the Storzes argue the
foreman’s statement is admissible evidence of misconduct because a juror who refuses to
follow the law as instructed is not performing his or her duty and therefore is guilty of
misconduct, citing People v. Williams (2001) 25 Cal.4th 441, 463 (Williams); People v.
Brown (2001) 91 Cal.App.4th 256, 271; and People v. Merced (2001) 94 Cal.App.4th
1024, 1028, 1030. These cases, however, address the issue of jury nullification. For
example, in Williams, our Supreme Court confirmed that the trial court properly
dismissed a juror during deliberations where the juror expressly stated he refused to
follow the court’s instructions because he believed the law was wrong. (Williams, supra,
25 Cal.4th at pp. 444, 446, 463.) There is no evidence here that the jurors refused to
follow the law because they believed it was wrong. At best, the declarations show that
the jurors misunderstood the law and the impact of answering the special verdict form as
they did.
       The instant case also does not involve the situation where the declarations
establish that the jurors agreed to disregard the trial court’s instructions; in such a
situation, the agreement does not implicate a juror’s subjective reasoning process but
itself constitutes misconduct. (See People v. Perez (1992) 4 Cal.App.4th 893, 908
[assuming all jurors discussed the defendant’s failure to testify, the discussion constituted
an explicit or implicit agreement to disregard the trial court’s express instruction not to
consider or discuss that issue; therefore, the jury’s discussion was admissible to impeach
the verdict under Evidence Code section 1150, and constituted misconduct].)
       Instead, the declarations address only the jurors’ reasons for their votes, i.e. that
they believed the foreman’s representation about the verdict form and voted based on that
belief, which is plainly inadmissible. (See Gorman v. Leftwich (1990) 218 Cal.App.3d

                                              18.
141, 146-147 [juror declarations which stated no vote was taken on the issue of causation
were inadmissible because they impugned the jury’s mental processes, its reasons for
assenting to the verdict, or attempted to show it made no findings as to certain matters; no
claim was made that the jurors affirmatively agreed to disregard the instructions, which
would constitute misconduct].)
       Because there is nothing in the record to show the foreman’s comment was
anything other than an expression of his personal, uninformed opinion, the trial court
erred in admitting it as evidence and finding misconduct. In reaching this conclusion, we
note California Supreme Court Justice Mosk’s cautionary reminder about the principles
for limiting juror declarations that seek to impeach a verdict: “I must express my
apprehension at an incipient trend, that of losing parties attempting to impeach jury
verdicts. We see this in numerous appeals and petitions for review based on juror
affidavits. Giving such appeals and petitions any credence prevents the finality of
judgments, places additional burdens on the judicial process, and contributes to
disenchantment with the tort system. [¶] Most juror affidavits . . . delve into the
subjective concerns of the jurors during their deliberations. When deference is given to
such affidavits, encouragement is given to opposing counsel in future cases to engage in
postverdict competition to obtain juror affidavits revealing discussions that took place
behind the closed doors of the deliberation room. Generally the party with the most
resources will win that contest. If affidavits purportedly relating jury discussions are
permissible, in the interest of accuracy we may as well install recording devices in jury
rooms.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 575 (conc. opn. of Mosk, J.).)
        The five declarations are the only evidence offered in support of the alleged juror
misconduct. In the absence of any admissible evidence, the motion for new trial should
have been denied on the ground of juror misconduct. (Cox, supra, 53 Cal.3d at p. 697;
People v. Sanchez (1998) 62 Cal.App.4th 460, 476.)



                                             19.
       The Alternate Grounds for the New Trial Motion
       An order granting a new trial must be affirmed if the trial court should have
granted a new trial on any ground stated in the motion, regardless of the trial court’s
stated reasons, with the exception of insufficiency of the evidence, or excessive or
inadequate damages, which must be stated in the order. (§ 657.) Where, as here, the trial
court specified the grounds and reasons for granting a new trial, but the order cannot be
affirmed on those grounds or for those reasons, “the moving party bears the burden on
appeal to show that the order should be affirmed on another ground stated in the motion
or for reasons other than those specified by the trial court.” (Bell v. Bayerische Motoren
Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1127 (Bell), citing Gaskill v.
Pacific Hosp. of Long Beach (1969) 272 Cal.App.2d 128, 130-132, and Meiner v. Ford
Motor Co. (1971) 17 Cal.App.3d 127, 144.).) Accordingly, we consider only the grounds
and reasons asserted by the Storzes on appeal.
       The Storzes raise two grounds on appeal for affirming the order granting the new
trial. First, they assert the trial court made an “error in law” under section 657,
subdivision (7), by instructing the jury with Pine Mountain’s special instruction number
four as follows: “The duty which a possessor of land owes to others to put and maintain it
in a reasonably safe condition is nondelegable.” The Storzes contend the instruction was
inapplicable and should not have been given because the rule it states applies only with
regard to the property possessor’s liability for the torts of an independent contractor and
Pine Mountain’s purported liability was not based on that theory. They further argue the
instruction was highly prejudicial, as it essentially instructed the jury to award judgment
to Pine Mountain since any jury that followed the instruction could only decide for Pine
Mountain on the issue of causation.
       Our Supreme Court has held there is no rule of automatic reversal applicable to
any category of civil instructional error. (Soule v. General Motors Corp. (1994) 8 Cal.4th
548.) In Soule, the Court held that “[a] party is entitled upon request to correct,

                                             20.
nonargumentative jury instructions on every theory of the case advanced by him which is
supported by substantial evidence.” (Id. at p. 572.) When the jury in a civil case receives
an improper instruction, prejudice generally will be found only “‘“where it seems
probable that the jury’s verdict may have been based on the erroneous instruction….”’”
(Id. at p. 574.)
       The Storzes are correct that the doctrine of nondelegable duties has been applied
as an exception to the general rule that a person who hires an independent contractor is
not liable for injuries suffered by third parties caused by the contractor’s negligence in
performing the work. (Koepnick v. Kashiwa Fudosan America, Inc. (2009)
173 Cal.App.4th 32, 36.) This exception is described in Brown v. George Pepperdine
Foundation (1943) 23 Cal.2d 256, as follows: “‘The duty which a possessor of land
owes to others to put and maintain it in reasonably safe condition is nondelegable. If an
independent contractor, no matter how carefully selected, is employed to perform it, the
possessor is answerable for harm caused by the negligent failure of his contractor to put
or maintain the buildings and structures in reasonably safe condition, irrespective of
whether the contractor’s negligence lies in his incompetence, carelessness, inattention or
delay.’” (Id. at p. 260.)
       Admittedly, the instant case does not involve an independent contractor. But just
because the doctrine of nondelegable duties has been applied in cases involving
independent contractors does not mean the doctrine is not relevant to the issues in this
case. For example, in Davert v. Larson (1985) 163 Cal.App.3d 407 (Davert), individual
owners of real property consisting of common areas in a recreational community were
sued after a horse escaped from the land they owned and collided with a car traveling on
an adjacent road. (Id. at p. 409.) Reversing summary judgment in favor of one
defendant, the Court of Appeal rejected the defendant’s argument that he owed the
plaintiffs no duty of care because his interest in the property was small and he exercised
no control over management of the property, as he took title to his interest in the property

                                             21.
subject to a recorded declaration of covenants, conditions and restrictions delegating
exclusive control of the property to an owner’s association. (Id. at pp. 409-410.) Noting
that a landowner “owes a duty of care to persons who come on his property as well as to
persons off the property for injuries due to the landowner’s lack of due care in
[managing] his property” and that “[g]enerally, the duty owed by a landowner is
nondelegable,” the appellate court held that “tenants in common of real property who
delegate the control and management of the property to a separate legal entity should not
be immunized from liability to third parties for tortious conduct.” (Id. at pp. 410, 412.)
       As Davert demonstrates, a landowner’s nondelegable duty may be an issue even
where an independent contractor is not involved. Here, the Storzes had a duty to
maintain their property in a reasonably safe condition, which they could not delegate to
Pine Mountain. The instruction was relevant to address the Storzes’ inferences at trial
that Pine Mountain had a duty to inspect the pine tree and hire an expert to assess its
condition. The instruction also was relevant as to whether the Storzes were
comparatively negligent, as the instruction informed the jury the Storzes could not escape
being found negligent by asserting they had delegated their duty to maintain their
property in a safe condition to Pine Mountain or anyone else.
       Moreover, as Pine Mountain points out, the instruction did not affect the jury’s
deliberations or their verdict. Although the jury submitted two requests, it did not ask
any questions about the special instruction or the Storzes’ duties as landowners. In
addition, the jury found Pine Mountain negligent. If the jury had construed the
instruction as the Storzes’ suggest, it would have not found any negligence on the part of
Pine Mountain. The trial court did not err in giving the instruction.
       The second ground the Storzes assert on appeal as a basis for affirming the new
trial order is that found in section 657, subdivision (6), that the verdict was “against law”
because it was inconsistent. They essentially contend that once the jury found Pine
Mountain was negligent, it was required to find causation. They assert the jury’s failure

                                             22.
to find causation could be attributable only to their other claimed errors, i.e. the
foreman’s improper instruction to the jury and the erroneous special instruction on
nondelegable duty.
       “A special verdict is inconsistent if there is no possibility of reconciling its
findings with each other.” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186
Cal.App.4th 338, 357.) “On appeal, we review a special verdict de novo to determine
whether its findings are inconsistent.” (Id. at p. 358.) “‘“‘Where the findings are
contradictory on material issues, and the correct determination of such issues is necessary
to sustain the judgment, the inconsistency is reversible error.’”’” (Ibid.) A new trial is
the proper remedy for an inconsistent special verdict. (Ibid.)
       The jury was instructed that, to prevail on their negligence claim, the Storzes had
to prove that Pine Mountain was negligent, that the Storzes were harmed, and that Pine
Mountain’s “negligence was a substantial factor in causing” their harm. It was further
instructed: “A substantial factor in causing harm is a factor that a reasonable person
would consider to have contributed to the harm. It must be more than a remote or trivial
factor. It does not have to be the only cause of the harm.” The jury was also told: “A
person’s negligence may combine with another factor to cause harm. If you find that
Pine Mountain[]’s negligence was a substantial factor in causing the Storz[es]’ harm,
then Pine Mountain [] is responsible for the harm. Pine Mountain [] cannot avoid
responsibility just because some other person, condition, or event was also a substantial
factor in causing the Storz[es]’ harm.” Finally, the jury was instructed that “[a]
corporation is responsible for harm caused by the wrongful conduct of its employees
while acting within the scope of their employment[,]” that Clark was an employee of Pine
Mountain, and if the jury found Clark was acting within the scope of his employment
when the incident occurred, then Pine Mountain was responsible for any harm caused by
Clark’s negligence.



                                              23.
       At trial, the Storzes contended Pine Mountain was negligent for two reasons:
(1) because it refused to let them cut down the tree; and (2) Clark was not in a good
position to evaluate the tree, as he was neither trained nor educated. The jury factually
found Pine Mountain was negligent without specifying the way in which it was negligent,
as the special verdict form asked only whether Pine Mountain was negligent. The jury
further factually found that Pine Mountain’s negligence was not a substantial factor in
causing Devin’s death.
       When the jury finds negligence without specifying the way in which the party was
negligent, the record is silent on the jury’s theory of negligence. (David v. Hernandez
(2014) 226 Cal.App.4th 578, 585-586.) “‘Where, as here, there is no special finding on
what negligence is found by the jury, the jury’s finding is tantamount to a general verdict.
As long as a single theory of negligence is lawfully rebutted on a lack of causation
theory, it matters not that another theory of negligence is not so rebutted.’” (Id. at pp.
585-586, citing Jonkey v. Carignan Const. Co. (2006) 139 Cal.App.4th 20, 24, 26
(Jonkey).)
       Here, the jury reasonably could have found that, based on Clark’s policy of
submitting all requests concerning the monument trees to the committee, Clark was
negligent when he failed to submit Arthur’s requests to cut down the pine tree to the
committee, and instead told Arthur on the spot that the tree was healthy and could not
come down. The jury further could have found that this negligence was not a substantial
factor in causing Devin’s death because, even if Clark had involved the committee, the
pine tree would have appeared healthy to the committee (as Pine Mountain’s expert
testified), and the committee would have reached a reasonable, non-negligent, decision
not to allow the Storzes to remove it.
       Further, the jury reasonably could have found that Clark’s negligence did not
contribute to the Storzes’ failure to remove or trim the pine tree, which ultimately led to
Devin’s death, based on the following evidence: Kowalski had warned the Storzes of the

                                             24.
need to trim the pine tree because the dead branches could destroy the house if it fell; the
pine tree had not been trimmed for at least five years before the accident; as Sevier
admitted, had the pine tree been trimmed, it could have stood for another year; as Slowik
opined, the pine tree did not exhibit any outward signs of distress that would have put
anyone on notice of root rot; the Storzes wanted the pine tree removed, not because they
were concerned about the danger it posed, but because they wanted to build an addition;
and before 2009, the Storzes were unaware there was a penalty for unauthorized removal
of the pine tree, and therefore could have removed it without committee approval if they
truly believed the pine tree was dangerous.
       Based on this evidence, the jury reasonably could have concluded that the Storzes
had the last and best opportunity to take down the pine tree, but elected not to do so,
thereby eliminating Pine Mountain’s negligence as a substantial factor in the incident.
(See, e.g., Jonkey, supra, 139 Cal.App.4th at pp. 25-26 [the plaintiff, a construction
worker, was injured at a construction site when his foot was hit by a falling plank from a
scaffold that was being disassembled by the employee of a masonry company; substantial
evidence supported jury’s verdict that the company’s negligence did not cause the
plaintiff’s injuries as it was obvious the scaffold was being disassembled, the company’s
employees yelled warnings to the plaintiff but the site was noisy, and one employee
waived his hands at the plaintiff, but the plaintiff was focused on his cell phone
conversation and was looking at the ground; the jury could have decided the company
was negligent only on a failure to warn theory that did not cause the injury].)
       As the jury could have found Pine Mountain’s negligence was rebutted on a lack
of causation theory, the special verdict is not inconsistent. The jury reasonably could
have concluded the pine tree fell due to the Storzes’ own decision not to remove or trim it
rather than any negligent act by Pine Mountain.
        In sum, the Storzes have failed to show that the trial court’s order must be
affirmed on the alternate grounds for the new trial motion.

                                              25.
                                      DISPOSITION
       The order granting a new trial is reversed, and the judgment is affirmed. Pine
Mountain is entitled to recover its costs on appeal.



                                                               _____________________
                                                                    GOMES, Acting P.J.
WE CONCUR:


 _____________________
PEÑA, J.


 _____________________
SMITH, J.




                                            26.
