Filed 7/17/19
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                            DIVISION SIX


RUBEN NODAL,                                  2d Civil No. B285482
                                           (Super. Ct. No. CV128215)
     Plaintiff and Appellant,               (San Luis Obispo County)

v.

CAL-WEST RAIN, INC.,

     Defendant and Respondent.



      A “rogue juror” is someone who, in a mischievous way,
wanders apart from fellow jurors, does not follow the court’s
instructions, and violates the juror’s oath. (See CACI No. 100.)
This undermines the integrity of trial by an impartial jury. Such
a juror may not vote or influence other jurors based upon
asserted expertise on a matter not in evidence at trial. This is
juror misconduct which raises a presumption of prejudice. Here,
it was not rebutted and we reverse.
      This appeal follows a five-week trial in which appellant
claimed that a steel nipple was improperly screwed into a plastic
bushing on a vineyard irrigation system. The bushing failed,
causing a 20-pound valve assembly to blow off a pump station
pipe and strike appellant in the head. Appellant sued on a theory
of negligent design and construction. The jury returned a 9-3
special verdict that defendant Cal West Rain, Inc. (Cal West) was
not negligent.
                   Facts and Procedural History
      Appellant, a vineyard foreman for Kesselring Vineyard
Consulting Services (KVCS), was injured when a valve assembly
blew off a vineyard irrigation pipe and hit him. Lunacy Vineyard
hired KVCS to plant and cultivate the vineyard, and Cal West
designed and installed the irrigation system. The irrigation
system pumped water from a reservoir to a pump station, and
from the pump station to irrigation blocks that serviced the
vineyard.
      Appellant claimed that the valve assembly blew off the
pump station pipe because Cal West improperly joined a steel
nipple with a threaded plastic bushing. The valve assembly had
a steel nipple that threaded into a two-inch plastic bushing (PVC
bushing), which was connected to the pump station pipe. Joe
Garza, the Paso Robles branch manager of Cal West, oversaw the
installation and trained appellant that the pump station had to
be operated in automatic mode to maintain a water pressure of
100 pounds per square inch. Operation of the irrigation system
in manual mode would produce water pressure exceeding the
system design.
      In August of 2010, the pump station was not working.
Appellant moved the power lever on the pump station from “off”
to “on,” opened a gray box on the control panel, and pressed the
green “manual” button and the blue “auto” button. After the
pump station powered up, the valve assembly blew off the PVC
bushing and hit appellant. Appellant’s expert, Ronald Bliesner,
opined the valve assembly failed due to several factors, one of




                                2
which was the over tightening of the steel nipple into the
threaded bushing.
       After the jury returned a 9-3 special verdict for Cal West,
appellant moved for new trial based on juror misconduct, and
judgment notwithstanding the verdict (JNOV). The trial court
found that juror misconduct occurred but did not prejudice
appellant. It also ruled that the verdict was supported by
substantial evidence.
                          Juror Misconduct
       On review, we defer to the trial court’s factual findings and
independently determine whether the juror misconduct was
prejudicial. (Vomaska v. City of San Diego (1997) 55 Cal.App.4th
905, 912.) “Juror affidavits may be used to impeach a verdict if
they refer to objectively ascertainable statements, conduct,
conditions or events, but not subjective reasoning processes of
jurors, which are likely to have influenced the verdict improperly.
[Citations.]” (Id. at p. 910.)
       Here, the motion for new trial focused on juror Reed. He
was a pipefitter for 35 years who farmed in the Central Valley.
He had designed and built an irrigation system for his almond
ranch. Appellant submitted four juror declarations stating that,
on the first day of deliberations, the jury vote “was split between
yes, no, and undecided.” During deliberations, Juror Reed said
he had “‘been doing this for years,’” that “‘[a]nybody would have
put [the system] together the exact same way,’” and that “‘[Cal
West] installed the system like everybody in the industry does.’”
“‘[T]hey installed the system the way the AG industry does it,
that’s just how it’s done.’” “‘Everybody does it this way and this
is industry standard.’” “‘[O]nce the system was put together, and
Cal West had done their testing, the ownership of the system




                                 3
transferred to the owner of the vineyard, and then anything that
happened was the vineyard’s responsibility.’” (Italics added.)
       Cal West submitted two juror declarations stating that
Reed offered opinions, just as the other jurors did. In a separate
declaration, Reed conclusionally denied that he was biased or told
the other jurors how he was going to vote before the jury
commenced deliberations. He did not refute the precise
allegations of the other jurors’ declarations. Two of these jurors
voted for a defense verdict.
       In People v. Steele (2002) 27 Cal.4th 1230, our Supreme
Court held that “[a] fine line exists between using one’s
background in analyzing the evidence, which is appropriate, even
inevitable, and injecting ‘an opinion explicitly based on
specialized information obtained from outside sources,’ which we
have described as [juror] misconduct. [Citation.]” (Id. at
p. 1266.) The trial court found that Reed crossed the “‘line’”
described in Steele because Reed’s remarks “introduced a fact, not
in evidence, that is, how others design and use materials. No
witness . . . gave evidence that he/she/it actually designed and
used materials the way that Cal West . . . did in this case. This
adds the fact that others routinely construct [irrigation] systems
[the way] that Cal West . . . did here.” The trial court found it
was juror misconduct but appellant was not prejudiced because
the jurors were free to draw different inferences from Reed’s
remarks.
       We conclude that the juror misconduct raised a
presumption of prejudice, which was not rebutted by Cal West.
(McDonald v. Southern Pacific Transportation Co. (1999) 71
Cal.App.4th 256, 265 (McDonald).) Jurors are not permitted to
inject extraneous evidence, standards of care, or defense theories




                                4
into the deliberations. Reed said the Cal West design and
construction met the “industry standard” and that “[a]nybody
would have put [the system] together the exact same way. . . .”
There was no evidence of that. Reed vouched for the design and
construction based on his expertise as a pipefitter and farmer,
and said that anything that happened after the system was put
together and tested “was the vineyard’s responsibility.” That was
contrary to the evidence and instructions. The case was tried on
a negligent design and construction theory. It mattered not
whether ownership of the irrigation system transferred to the
vineyard owner after Cal West built the system. (See Jud.
Council of Cal. Civil Jury Instructions (2018) CACI 1220, p. 734;
Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461,
1466-1467 [contractor liable for injury caused by latent defect in
negligent construction].)
       It is settled that a juror may not “discuss an opinion
explicitly based on specialized information obtained from outside
sources. Such injection of external information in the form of a
juror’s own claim to expertise or specialized knowledge of a
matter at issue is misconduct. [Citations.]” (In re Malone (1996)
12 Cal.4th 935, 963-964.) McDonald, supra, 71 Cal.App.4th 256
is illustrative and involved a 9-3 special verdict for defendant
train company. A juror who worked as a professional
transportation consultant introduced new evidence in the nature
of expert opinion during jury deliberations. (Id. at pp. 263-264.)
The juror talked about the placement of crossing gate sensors,
their operation, and the reason why gates were not or could not
be installed at the crossing. The misconduct was “clear and
severe” and “brought to bear not common knowledge but
purported expert (and ex parte) rebuttal.” (Id. at pp. 267, 265.)




                                5
       Like the “rogue juror” in McDonald, Reed told the jury
about the industry standard, causation, and how the vineyard
owner was responsible for anything that happened. He said “‘I
know what I’m voting no matter what.’” “[I]t can be fairly
assumed that the opinions held by [this] Juror certainly
influenced his vote on the first and crucial question” of whether
Cal West was negligent. (Whitlock v. Foster Wheeler, LLC (2008)
160 Cal.App.4th 149, 163.) The juror affidavits further reflect
that his statements potentially influenced the votes of as many as
four other jurors. (Ibid.) It raised a presumption of prejudice
that was not rebutted. (See, e.g., In re Malone, supra, 12 Cal.4th
at p. 964 [prejudice analysis is different from and less tolerant
than harmless-error analysis for ordinary error at trial];
McDonald, supra, 71 Cal.App.4th at p. 266 [same].) “When the
misconduct in question supports a finding that there is a
substantial likelihood that at least one juror was impermissibly
influenced to the [plaintiff’s] detriment, we are compelled to
conclude that the integrity of the trial was undermined.” (In re
Malone, supra, at p. 964.) We accordingly reverse and remand
for new trial.
                            JNOV Motion
       Appellant contends the trial court erred in not granting a
JNOV. On appeal, we determine whether there is any
substantial evidence, contradicted or uncontradicted, supporting
the jury’s verdict. (Jones & Matson v. Hall (2007) 155
Cal.App.4th 1596, 1607.)
       The evidence shows that appellant’s operation of the pump
station in manual mode could have caused the PVC bushing to
fail. Appellant had no recollection of the incident, but Assael
Barron (appellant’s coworker) saw appellant press the green




                                6
“manual” button and the blue “auto” button on the pump station
control panel. Cal West manager, Joe Garza, stated that the
start sequence would cause the pump station to run at maximum
speed and produce water pressure in excess of the system design.
William Bilek, the Cal West system designer, agreed that
operation of the pump station in manual mode could have caused
the valve assembly to break off the PVC bushing.
       Appellant’s expert, Bliesner, opined there were other
contributing factors for the valve assembly failure but did not
specifically address the issue of operator error. Bliesner
speculated that a metal reinforced PVC bushing would have
prevented radial stress and cracking when the steel nipple was
screwed into the bushing. But Cal West employees Garza and
Bilek stated that the bushing was not cracked and the bushing
threads were not split, which would be the case if the steel nipple
was over tightened.
       The trial court found that appellant’s case “relied
completely on the jury believing” Bliesner’s testimony that over
tightening would cause the PVC bushing to crack and fail. The
trial court denied the motion for JNOV because the evidence
showed that “the risk of over tightening was known to Cal West
Rain employees and they used a technique so as not to
overtighten.” Where, as here, the evidence is conflicting or if
several reasonable inferences may be drawn, the motion for
judgment notwithstanding the verdict should be denied. (Hauter
v. Zogarts (1975) 14 Cal.3d 104, 110.)




                                 7
                          Disposition
      The judgment is reversed. The order denying the motion
for JNOV is affirmed. Appellant is awarded costs on appeal.
      CERTIFIED FOR PUBLICATION.


                                             YEGAN, J.

We concur:


             GILBERT, P. J.


             TANGEMAN, J.




                              8
                   Donald G. Umhofer, Judge

           Superior Court County of San Luis Obispo

                ______________________________

     Frederick Law Firm, Jacqueline Vitti Frederick and Sunny
Hawks; Tardiff Law Offices and Neil S. Tardiff for Plaintiff and
Appellant.

     Hager & Dowling, Lora D. Hemphill and Thomas J.
Dowling for Defendant and Respondent.
