Filed 3/17/14 Hull v. Phelps CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


JOHN M. HULL,                                                                2d Civil No. B243383
                                                                            (Super. Ct. No. 56-2011-
     Plaintiff and Appellant,                                               00389287-CU-PO-VTA)
                                                                               (Ventura County)
v.

MICHAEL PHELPS,

     Defendant and Respondent.



                   Plaintiff sued a property owner for personal injuries that occurred when a
dog owned by the property owner's tenants bit him. A jury returned a verdict for
defendant property owner. Plaintiff appeals on the grounds of jury misconduct and the
trial court's refusal to instruct on nondelegable duty. We affirm.
                                                        FACTS
                   Michael Phelps owns property in Ventura on which there are two houses.
Phelps rented the front unit to to Charles Warnock. Warnock lived there with his wife
and daughters.
                   In September 2008 Phelps rented the back unit to Kevin Lennon and
Cecilia Jones. The rental application asked about pets. Lennon and Jones listed
"Dog/American Staffordshire." Phelps did not know that an American Staffordshire is a
pit bull. The lease allowed for one dog.
              After Lennon and Jones moved in, the dog they owned at the time of the
application died. They acquired a new pit bull puppy they named Cholo. Cholo grew to
weigh 100 pounds.
              At some point, Cholo bit Warnock. The bite was not serious, and Warnock
did not report it to Phelps, hoping it would not happen again.
              In October 2010 Warnock's wife left a message on Phelps's answering
machine informing him that a pit bull bit Warnock "again." Warnock's wife also
mentioned that Lennon had constructed a white gate across the driveway, and that they
had to go through the gate to get to the garage.
              Phelps drove by his property and saw the gate across the driveway for the
first time. He did not approve the gate or that a pit bull lived there. He wrote a letter to
Lennon and Jones stating that he had been advised that Lennon's dog had bitten someone.
The letter stated that "any animal not on the rental agreement" must be removed from the
premises and the gate must also be removed. Phelps did not believe the dog that bit
Warnock was on the rental agreement.
              After Phelps wrote the letter, he talked to Lennon and Jones on the
telephone. They told Phelps that they would take care of the dog problem and that they
had "somewhere for the dog to go." Phelps assumed that they were giving the dog away.
              About two weeks later, Phelps drove by the property and saw that the gates
across the driveway had been removed. He assumed that the dog had been given away.
In fact, the dog was still present.
              On November 16, 2010, John Hull entered the property to deliver keys and
a repair estimate to Lennon and Jones. Without warning Cholo attacked Hull, injuring
his arms and hands.
                                       Juror Affidavit
              The jury found Phelps not negligent by a margin of nine to three. Hull
moved for a new trial based on juror misconduct. In support of his motion, he submitted
a declaration by Jury Foreman, Robert Gold, as follows:



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               "When the jury began its[] deliberations we went around the room and each
juror was able to express their position and feelings on the case before us. When the jury
first voted, the vote was 7-5 for the defense. At the initial go round, Juror number 6, a
man named 'Alexander' who I believe is a CPA for Bank of America, proposed that the
case be resolved by the use of mathematical probability calculations and that he 'had it all
figured out'. As I recall, Alexander prepared and utilized a cross-graph in his note book
which he used and passed around the jury room stating to the other jurors that they should
use numerical probability calculations to decide the essential facts in the case. In
preparing the graph, as described by Alexander, he assigned numerical values to several
of the key facts in the case. For example, he stated that to determine who was recalling
the facts correctly, a % of truth could be determined by use of the mathematical formulas
which he was proposing. Alexander said that mathematical probabilities could 'prove' the
probabilities of the essential facts in the case and in his view, the result of his calculations
favored the defendant.
               "I became extremely concerned when Alexander continued to press the
other jurors with his mathematical probability calculations. Alexander sated that 'there
was no question that the defendant, Mr. Phelps, was recalling the facts more accurately
than the plaintiff based upon his (Alexander's) calculations of probability'. In response to
Alexander's statements, I stated to the other members of the jury that 'we as the jury
should follow the jury instructions and focus on the evidence and the law before us and
that consideration of Alexander's probability calculations was not proper.' I directly
stated to Alexander that it was 'inappropriate to use mathematics to formulate a legal
decision in this case'.
               "On the morning of the second day of deliberations, the jury voted again
and the jury voted 12-0 that the plaintiff deserved some compensation for his injuries.
Because of this vote, I stated to the Judge that 'there was light at the end of the tunnel'.
After this vote was taken we turned our attention to Question No. 1. Was Defendant
Michael Phelps Negligent? At this time, Alexander again began to press the five jurors
who had steadfastly voted for the Plaintiff and a finding of negligence in answer to


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Question No. 1. At this time Alexander spoke mainly to Juror Number 10 'Tara', and a
Juror named 'Janet' both of whom were in favor of the Plaintiff. Alexander stated to them
that the 'numerics favored the defense' and that 'you cannot argue with the numbers'.
              "Eventually we were unable to reach a consensus and it was decided that
the jury would return to the courtroom and declare that a verdict could not be reached.
While in the courtroom, Juror Number 11, Elizabeth, asked a question of the Judge.
Elizabeth asked whether or not juror should make decisions in the case based upon what
the juror felt was right in their heart or whether or not the juror should use logic and
reason to decide the issue. As I recall the Judge answered the question by referring
Elizabeth to the jury instructions. Elizabeth had consistently voted for the defense and
stated during deliberations that she was 'in agreement' with Alexander's mathematical
probability formulas and conclusions. After the jury returned to the jury deliberation
room, Alexander again forcefully explained his numerical calculations again and Tara
and Janet both changed their vote in favor of the defendant resulting in a verdict of 9-3 in
favor of the defendant Michel Phelps."
              The trial court denied the motion for a new trial. The court concluded juror
Alexander did not commit misconduct. He did not introduce evidence extrinsic to the
case, so much as devise a way to weigh and assess the evidence.
                                       DISCUSSION
                                              I.
              Hull contends the trial court erred in denying his motion for a new trial
based on juror misconduct.
              Juror misconduct is one of the grounds specified for granting a new trial.
(Code Civ. Proc., § 657, subd. (2).) In ruling on a motion for a new trial based on juror
misconduct the trial court must determine whether the affidavit supporting the motion is
admissible; if admissible, whether the facts establish misconduct; and if there is
misconduct, whether it was prejudicial. (Whitlock v. Foster Wheeler, LLC (2008) 160
Cal.App.4th 149, 160.) We review the trial court's determination for an abuse of
discretion. (Ibid.)


                                              4
              The trial court stated the correct standard for determining the admissibility
of the evidence: "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." (Evid. Code, § 1150, subd. (a).)
              The court did not expressly rule on the admissibility of any of the evidence
contained in the juror's affidavit. Instead, the court ruled that the evidence contained in
the affidavit did not show misconduct.
              Hull argues that Alexander's use of a mathematical formula and a graph to
determine the truth constitutes an improper experiment.
              Hull relies on People v. Collins (2010) 49 Cal.4th 175. In deliberating the
penalty in a death penalty case, the jury was considering whether Collins "executed" the
victim. One juror went home and entered the heights of the defendant and victim and the
angle at which the bullet entered the victim's head into a computer program. The
program confirmed the juror's belief that the defendant was standing above the victim
when the victim was shot. The next day, in the jury room, the juror used two jurors, a
protractor and some string to demonstrate various possibilities concerning the relative
positions of the defendant and victim. The trial court granted a new penalty phase trial
on the basis of juror misconduct. The Court of Appeal reversed. Our Supreme Court
affirmed the Court of Appeal.
              In concluding there was no jury misconduct, our Supreme Court stated:
"Not every jury experiment constitutes a 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.


                                              5
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." (People v. Collins,
supra, 49 Cal.4th at p. 249.) The court determined that both the juror's use of a computer
program and the demonstration in the jury room were simply means of analyzing the
evidence presented at trial. (Id. at pp. 252, 255.) The court cautioned, however: "If, for
example, a juror conducts an investigation in which he or she relies on software that
manipulates the data, subjecting it to presumptions written into the program, such use
would likely constitute an improper experiment." (Id. at p. 256.)
              Hull argues that this case is an example of the type of case to which the
Supreme Court gave its caution against the use of software that manipulates the data,
subjecting it to presumptions written into the program. But the juror's affidavit states
only that a juror used some unspecified mathematical formula and graph to analyze the
evidence. It does not show that the formula and graph contained presumptions that
manipulated data. The affidavit shows only that a juror used mathematics as a means of
analyzing the evidence presented at trial. That is not misconduct.
              Hull's reliance on People v. Castro (1986) 184 Cal.App.3d 849, 854, is also
misplaced. There a jail guard testified he saw the Castro throw a burning mop into a
maintenance building. The guard was using binoculars from 50 to 100 yards away from
the building. A juror went home and used his own binoculars to test the witness's'
credibility. The Court of Appeal concluded the juror committed misconduct.
              But the juror in Castro added evidence outside the field of evidence
admitted at trial by using a different set of binoculars than the jail guard used. Here there
was no showing the mathematical formula and graph were anything other than a way of
thinking about the evidence admitted at trial.
              The trial court was correct. The juror affidavit does not show misconduct.
                                              II.
              Hull contends the trial court erred in refusing to instruct the jury that a
landlord has a nondelegable duty to remove a dangerous condition from his property.


                                              6
              Hull relies on the rule that under the doctrine of nondelegable duty, "a
landlord cannot escape liability for failure to maintain property in a safe condition by
delegating the duty to an independent contractor. . . ." (Citing Srithong v. Total
Investment Co. (1994) 23 Cal.App.4th 721, 726.)
              Hull's theory appears to be that Phelps's tenants, Lennon and Jones, were
independent contractors. Hull cites White v. Uniroyal, Inc. (1984) 155 Cal.App.3d 1, 24,
for the proposition that an independent contractor is "a person who is employed by
another to perform work; who pursues an "independent employment or occupation" in
performing it; and who follows the employer's "desires only as to the results of the work,
and not as to the means whereby it is to be accomplished." [Citations.]"
              But Lennon and Jones were not employed by Phelps. The only relationship
between Phelps and Lennon and Jones was landlord and tenant. Phelps required Lennon
and Jones to remove the dog, not because he employed them as independent contractors,
but because keeping the dog on the premises violated their lease. This case presents no
basis for a nondelegable duty instruction.
              The judgment is affirmed. Costs are awarded to respondent.
              NOT TO BE PUBLISHED.




                                             GILBERT, P. J.


We concur:


              YEGAN, J.



              PERREN, J.




                                               7
                              Rebecca S. Riley, Judge

                         Superior Court County of Ventura
                        ______________________________


            Lowthorp Richards, Jeffrey D. Johnsen for Plaintiff and Appellant.
            Priscilla F. Slocum, Stub Boeddinghaus & Velasco, Jacob Aall Stub for
Defendant and Respondent.
