Filed 5/21/15 Assadourian v. Smith CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE


JACK ASSADOURIAN,                                                    B254865

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. EC058157)
         v.

TERRY LEE SMITH,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory
Wilson Alarcon, Judge. Affirmed.
         Law Offices of Maro Burunsuzyan, Maro Burunsuzyan and David L. Scott for
Plaintiff and Appellant.
         Law Offices of Gregory J. Lucett, Lowell Houghton; Pollak, Vida & Fisher,
Michael M. Pollak and Hamed Amiri Ghaemmaghami for Defendant and Respondent
                                            ——————————.
       Plaintiff Jack Assadourian appeals from a judgment in his action for personal
injury against Terri Lee Shier (sued as Terri Lee Smith) (Smith). Plaintiff was injured in
an automobile accident when defendant Smith’s car collided with plaintiff’s car. The
jury found for plaintiff, but only awarded a total of $18,600 in damages out of the total of
more than $3 million that plaintiff sought for general and special damages.
       On appeal, plaintiff contends defendant’s counsel engaged in misconduct by
referring to facts not in evidence in counsel’s closing argument, and that the jury
improperly awarded a quotient verdict. On this record, we find that no prejudicial
misconduct occurred because counsel’s argument was a reasonable inference from the
facts, and plaintiff cannot establish that the jury failed to deliberate on damages after the
jury agreed to calculate a quotient of their individual opinions on the amount of
plaintiff’s damages. We affirm.
            FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       1.     Trial and Verdict1
       Plaintiff, who was 54 at the time of trial, lives in Glendale with his wife. Plaintiff
is a restaurateur who owns and manages a café in North Hollywood that presents comedy
acts. Plaintiff’s work at the café required 10 to 12 hour days.
       On April 20, 2010, at 10:30 a.m., plaintiff was driving west on Broadway in
Glendale when defendant Smith’s car turned in front of plaintiff and collided with
plaintiff’s vehicle. Plaintiff’s car, a Mercedes E500, sustained heavy frame damage and
was not drivable. After the accident, plaintiff was assisted out of the car and an
ambulance arrived. Plaintiff declined any medical help because he believed that if he
went home and lay down, he would be fine.
       That evening, plaintiff was in pain and took some Advil. He had sharp pains in
his lower back, left arm, and legs. The next day, he went to see a doctor, who
recommended physical therapy. Plaintiff had not suffered from low back pain until the

       1 Plaintiff has designated only portions of the reporter’s transcript for inclusion in
the record on appeal.

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accident, although he experienced some stiffness. Plaintiff thereafter attended physical
therapy for four or five months. In July 2010, he had an MRI, and in September 2010, he
was discharged from his doctor’s care. In October 2012, he had two more MRI’s. One
for his lumbar spine and on for his leg. In November 2012, plaintiff’s doctor
recommended epidural injections for plaintiff’s lower back pain. Plaintiff had three
injections, but relief was only temporary. At the time of trial in October 2013, plaintiff
was scheduled for back surgery.
       Plaintiff’s wife Tere Assadourian has assumed most of plaintiff’s responsibilities
at work. Plaintiff is unable to walk very much and cannot be on his feet for a long time.
One morning (she does not recall the date), she went to brush her teeth and saw plaintiff
sitting on the floor of the shower. Plaintiff now uses a bench when he showers. Plaintiff
has trouble sleeping at night, and cannot sit in the car for long periods of time.
       Plaintiff sought $45,089 for medical expenses, $143,000 to $153,000 for
plaintiff’s proposed back surgery, $300,000 in pain and suffering damages, and between
$750,000 and $3 million for lost future income due to his injuries.
       The jury returned a verdict for plaintiff, finding that defendant was negligent. The
jury awarded $10,000 for total past economic damages, nothing for future economic
losses, and $8,600 for pain and suffering.
       2.     Plaintiff’s Motion for a New Trial
       Plaintiff moved for a new trial, contending defendant’s counsel made an argument
to the jury based on facts not in evidence, namely, that plaintiff fell in the shower.
Further, plaintiff argued the jury failed to deliberate on the issue of damages and reached
an unlawful quotient verdict. Defendant argued that no prejudice resulted from counsel’s
alleged misstated fact because her comments constituted a reasonable inference drawn
from plaintiff’s testimony, and the verdict was not an impermissible quotient verdict
because there was no evidence the jury did not deliberate over the amount awarded after
deciding upon it.




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       The court denied the motion, finding that counsel’s argument that plaintiff may
have fallen in the shower was a reasonable inference from the facts and did not constitute
misconduct. Further, the court rejected any claim of improper jury deliberations because
it was based on incompetent evidence—the declaration of an alternate juror who was not
present throughout the deliberations.
                                        DISCUSSION
I.     Standard of Review
       Code of Civil Procedure section 657, subdivision (1), provides a new trial may be
granted for an “[i]rregularity in the proceedings of the court, jury or adverse party . . . by
which either party was prevented from having a fair trial.” A trial judge “is accorded a
wide discretion in ruling on a motion for new trial and . . . the exercise of this discretion
is given great deference on appeal. [Citations.] However, we are also mindful of the rule
that on an appeal from the judgment it is our duty to review all rulings and proceedings
involving the merits or affecting the judgment as substantially affecting the rights of a
party (see Code Civ. Proc., § 906), including an order denying a new trial. In our review
of such order denying a new trial, as distinguished from an order granting a new trial, we
must fulfill our obligation of reviewing the entire record, including the evidence, so as to
make an independent determination as to whether the error was prejudicial. [Citations.]”
(City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871–872.) Appellate courts are
required to review the entire record, including the evidence, and independently determine
whether prejudice resulted from the misconduct. Prejudice exists if it is reasonably
probable that the jury would have arrived at a verdict more favorable to the moving party
in the absence of the irregularity or error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th
780, 802.)
II.    Plaintiff Cannot Demonstrate Prejudicial Misconduct in Argument to Jury
On a Partial Transcript of the Proceedings
       Plaintiff argues that defendant’s counsel committed misconduct when counsel
argued that plaintiff had actually fallen in the shower and that such fall was the cause of


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plaintiff’s need for additional treatment after concluding a round of therapy in 2010.
Defendant argues the statements were permissible inferences drawn from the evidence,
and in any event, plaintiff makes his argument on a partial transcript, precluding this
court’s review of the record and hence any finding of prejudice.
       A.     Factual Background
       At trial, plaintiff’s wife testified on direct examination as follows:
       “Q: Mrs. Assadourian, I want to now ask you to direct your focus and attention to
changes in life-style that you have observed with respect to Mr. Assadourian.
Specifically to one morning when you went in to brush your teeth. Is there something
you saw that was different while he was in the shower?
       “A: Yes. I know he was in a lot of pain. But I never realized how much was the
pain until I saw so many different things that happen. That particular day I went to brush
my teeth, and then I went quickly to the restroom, when very sadly I saw him sitting
down on the floor of the shower.
       “Q: Is that something you had ever seen before?
       “A: No, not at all.
       “Q: Okay. And what did you do when you saw that?
       “A: At that time my mother had—
       “Q: Take your time.
       “A: I’m sorry. My mother had a bench that she uses to go to the restroom. So I
pick up the bench, and I went to give it to him to sit down and shower, and it’s very sad
because he’s such a strong man. He was a very strong man. And seeing your husband
being that weak, it was very painful for me.
       “Q: Mrs. Assadourian, has that bench been pretty much left in the shower for him
to use when he showers? A: Yes.”
       On cross-examination, she testified that she believed it was “last year [2012],” but
that she did not “remember dates.”




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       During closing argument, defense counsel argued that plaintiff’s wife had testified
that plaintiff “fell on the floor in late 2012, which is kind of interesting. . . .” Further,
counsel stated, “He fell in the shower. He got a torn meniscus and fell and had to sit on a
stool, and after that is when he got an epidural.” Plaintiff’s counsel objected, but the trial
court overruled the objections. Defense counsel continued in closing argument to stress
this point, arguing:
       “And nothing much else happened after that until he fell in the shower late in 2012
and hurt his knee. You heard there is an injection done on the knee. If you knew he had
that misfortune of doing that, you know that’s a nasty situation, and that certainly falling,
twisting, hurting your knee like that, falling in the shower, yeah, you can hurt yourself.
You can hurt your knee. You can hurt your back.” Further, “Nothing serious happened
until that day in the fall of 2012 when he fell in the shower. After that is when he got an
epidural.”
       Plaintiff’s counsel argued in rebuttal that: “He fell in the bathroom. I think I paid
particular attention to the evidence. I think I took good notes. And I know you took
copious notes. There was no falling in the bathroom. Where that came from I don’t
know. It can only be argued to claim that the severity of the protrusion of the disc was
because of falling. Come on. [¶] Mrs. Assadourian testified that one day she walked
into the bathroom to brush her teeth and saw Mr. Assadourian taking a shower on the
floor. She said, ‘I didn’t know until that day how bad his low back was. When I saw
him on the floor taking a shower.’ He was provided a bench, and he’s been using that.”
       B.      Discussion
       Misconduct of counsel is an irregularity in the proceedings and a ground for new
trial. Misconduct may take various forms, including improper argument to the jury.
(City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 870.) Counsel is given wide
latitude in closing argument to discuss the case, state their view on what the evidence
shows, and what conclusions the jury may draw from the evidence. (Cassim, supra, 34
Cal.4th at pp. 795–796.) Here, the claimed misconduct was nothing more than


                                                6
permissible inferences that could be drawn from the evidence, namely, that plaintiff fell
in the shower, and that is where his wife found him when she came in to brush her teeth.
Further, the inference is proper that from that fall, plaintiff exacerbated his back
condition, or injured his knee. We observe that apparently, there was medical evidence
introduced at trial that supported these inferences. The first MRI, taken on July 20, 2010,
showed what defendant described as a minor injury. The second MRI, taken on
October 9, 2012, evidenced new trauma according to defendant. As set forth above,
plaintiff’s wife testified that she found her husband on the floor of the shower in late
2012, although she was not certain of the date, thus supporting an inference that
something other than the car accident may have caused or exacerbated plaintiff’s injuries.
       Further, even if counsel’s argument constituted misconduct, we are required to
review the entire record, including the evidence, so as to make an independent
determination as to whether the misconduct was prejudicial so as to warrant a new trial.
(City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 872.) However, plaintiff
designated only a partial transcript on appeal. Consequently, in view of the abbreviated
record proffered by plaintiff, it is impossible for this court to determine whether it is
reasonably probable the jury would have arrived at a different verdict in the absence of
any such misconduct. We cannot presume that any misconduct, if it occurred, was
prejudicial.
III.   Quotient Verdict
       Plaintiff argues that the jury reached an unlawful quotient verdict on damages
because they agreed in advance to add up their individual damage awards and divide the
result. Defendant argues that plaintiff’s evidence is incomplete and although the jury
improperly created a quotient of damages, they may have properly deliberated over that
amount and thus there was no juror misconduct.
       A.      Factual Background
       Plaintiff relied on the declaration of Gregory E. Winfield, an alternate juror.
Winfield stated that at the outset of deliberations, one juror, Salesh Karen, stated that he


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had already decided that plaintiff’s damages were worth $15,000 and he would not
change his mind. After the special verdict form was given to the jurors, “the jurors
decided the liability question and went straight to calculating the past medical costs. At
no time did the jurors deliberate discuss any of the evidence regarding the actual injuries
or emotional damages suffered by the plaintiff in this case. [¶] . . . There were no
deliberations about the case, and the jury instructions were never even referred to at any
time during the deliberations.”
       Winfield stated that “the jurors were adding the past medical bills, juror
number 13, Julia Garcia Gonzalez, said in a very loud and intimidating voice that
Mr. Assadourian’s low back injuries were from falling in his shower two years after the
accident and as such, defendant should not pay for any care after the first $10,000.00 in
care in the first year. As a juror I heard all of the evidence during trial. There was no
evidence at trial that Mr. Assadourian had ever fallen in the shower[, there was] only
evidence that Mr. Assadourian’s back pain was so severe that his wife had seen him
showering while he was sitting on the shower floor. As an alternate in the deliberation
room I was prohibited from speaking, and I therefore said nothing. [¶] . . . She never said
or even implied that he had fallen in the shower, and there was no evidence that he had
ever fallen in the shower. [¶] . . . [¶] After the lunch break each of the jurors either said
or wrote down the amount of damages they wanted to award. There were no
deliberations or comments about any of the numbers given by any of the jurors. These
numbers were then being added to a total amount that would be divided by 12 to arrive at
a verdict on damages. Prior to deliberations I heard the Judge specifically instruct the
jury that the jury was not to take a damage amount from each juror and make the average
their verdict. Despite the Judge’s instruction, this jury did exactly what the Judge told the
jury they must not do. At that point, I was becoming so angry at the jury’s refusal to
deliberate the evidence or follow the instructions of law given by the Judge that I could
no longer remain in the room. I knocked on the courtroom door and asked the clerk once
she opened it if I could just wait outside and I was allowed to do so.”


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       The jury here was instructed with CACI No. 5009, providing that “you must not
base your decision on chance, such as a flip of a coin. If you decide to award damages,
you may not agree in advance to simply add up the amounts each juror thinks is right and
then . . . make the average your verdict.”
       B.     Discussion
       “A refusal to deliberate consists of a juror’s unwillingness to engage in the
deliberative process; that is, he or she will not participate in discussions with fellow
jurors by listening to their views and by expressing his or her own views. Examples of
refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the
beginning of deliberations and refusing to consider other points of view, refusing to
speak to other jurors, and attempting to separate oneself physically from the remainder of
the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic
or analysis does not constitute a refusal to deliberate and is not a ground for discharge.
Similarly, the circumstance that a juror disagrees with the majority of the jury as to what
the evidence shows, or how the law should be applied to the facts, or the manner in
which deliberations should be conducted does not constitute a refusal to deliberate and is
not a ground for discharge. A juror who has participated in deliberations for a reasonable
period of time may not be discharged for refusing to deliberate, simply because the juror
expresses the belief that further discussion will not alter his or her views.” (People v.
Cleveland (2001) 25 Cal.4th 466, 485.)
       A “quotient verdict” is a form of chance verdict where the jurors agree in advance
to be bound by the “average” (or other quotient) of their individual damage
determinations (i.e., they agree to an uncertain and unknown sum). (Chronakis v.
Windsor (1993) 14 Cal.App.4th 1058, 1064.) However, quotient verdicts are improper
only when agreed to beforehand. No misconduct occurs when the jury uses an average
sum or other quotient as the basis for further discussion and balloting on the damages
amount, even if the quotient amount is subsequently adopted as the verdict. (Fredrics v.
Paige (1994) 29 Cal.App.4th 1642, 1646 [jurors each wrote down on a piece of paper an


                                              9
amount they thought would be a fair verdict, and after determining the average, they
discussed it and voted a verdict in that amount; because there was no prior agreement to
be bound thereby, this was not a quotient verdict].)
       Juror misconduct may be proven with affidavits. 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.” “This statute distinguishes ‘between proof of overt acts, objectively
ascertainable, and proof of the subjective reasoning processes of the individual juror,
which can be neither corroborated nor disproved . . . .” (People v. Steele (2002) 27
Cal.4th 1230, 1261.) “‘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.’” (Ibid.)
       Here, we find no evidence of juror misconduct. Although juror Karan stated he
had a set figure in mind ($15,000), the jury thereafter agreed to throw all of their
damages numbers in a pot and derive the quotient. Up until this point, when Winfield
left the jury room, such actions potentially constituted juror misconduct because the jury
seemingly agreed ahead of time to derive a quotient verdict. However, Winfield left the
jury room before the verdict was actually rendered, and we have no way of knowing
whether the jury actually deliberated on its quotient verdict—deliberations that would
have rendered the quotient an acceptable verdict. Thus, this gap in Winfield’s knowledge
is fatal to any claim of juror misconduct. As the trial court noted, there was no evidence
that the jury failed to deliberate further on the propriety of any damage quotient it


                                             10
determined. As the burden is on plaintiff to demonstrate error, this showing is
insufficient. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 641.)
                                      DISPOSITION
       The judgment is affirmed. The parties are to bear their own costs on appeal.
       NOT TO BE PUBLISHED.


                                           JOHNSON, J.


We concur:


              ROTHSCHILD, P. J.


              BENDIX, J.*




       * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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