Filed 9/26/16 Pourteymour v. Mani CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



RAMIN POURTEYMOUR,                                                  D067225

         Plaintiff and Appellant,

         v.                                                          (Super. Ct. No. 37-2012-00100146-
                                                                     CU-DF-CTL)
NASRIN MANI,

         Defendant and Respondent.


NASRIN MANI,                                                         D067281

         Cross-complainant and Respondent,

         v.                                                          (Super. Ct. No. 37-2012-00100146-
                                                                     CU-DF-CTL)
RAMIN POURTEYMOUR,

         Cross-defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Kevin A.

Enright, Judge. Affirmed.
       Friedhofer, James Friedhofer; Law Office of Douglas R. Reynolds, Douglas R.

Reynolds; Horvitz & Levy, Peter Abrahams, David M. Axelrad; Byron & Edwards,

Thomas W. Byron and Robert Scott Norman for Plaintiff, Cross-defendant and

Appellant.

       Law Offices of Martin N. Buchanan, Martin N. Buchanan; Kirby Noonan Lance &

Hoge, Michael L. Kirby; Grimm, Vranjes & Greer, Mark Vranjes, Stephen P. Conching;

Tyson & Mendez and Mina Miserlis for Defendant, Cross-complainant and Respondent.

       In this case, we reject plaintiff, cross-defendant and appellant Ramin

Pourteymour's principal contention the jury's verdict in this case must be reversed

because of jury misconduct; we also reject his additional claims that the trial court erred

in excluding evidence Pourteymour offered and that the jury's award of $2.5 million in

punitive damages was excessive. Accordingly, we affirm the $2.75 million judgment

entered in favor of defendant, cross-complainant and respondent Nasrin Mani.

                                       SUMMARY

       Both Pourteymour and Mani emigrated to the United States from Iran and made

very successful careers here. Because of their shared heritage they became friends, and

Mani used Pourteymour's services as a real estate investment advisor. However, after

some investments did not turn out as well as Mani and her husband expected, Mani

ceased doing business with Pourteymour. Thereafter, Pourteymour sued Mani and her

husband for slander, among other claims; the suit was settled in 2009. This proceeding, a

second slander action, was commenced in 2012.

       Our review of the record shows Mani did a fairly convincing job of demonstrating

                                             2
that Pourteymour's current slander claims against her were meritless. The record shows

that, with conflicting documentary evidence and witness testimony, Mani very effectively

impeached the principal witness Pourteymour offered in support of his claims that Mani

had disparaged his competence and honesty.

       By the same token, the record also shows that Mani did establish one of the

allegations of the slander cross-complaint she brought against Pourteymour. She alleged

Pourteymour had told mutual acquaintances that, although Mani is married, Mani had

attempted to seduce him and had disrobed in front of him. At trial, Pourteymour did not

deny repeatedly making this statement; rather, he asserted it was true.

       Given this record—which shows that Pourteymour initiated meritless claims

against Mani and exposed himself to substantial liability to her for his own misconduct—

it is not altogether surprising that, after the jury was excused to begin deliberations and

apparently even before the jury had selected a foreman, one juror inquired of other jurors:

"Why would someone file a lawsuit like this?"

       Another juror responded to this question with his appraisal of Pourteymour: "He

probably wasn't very happy he got fired from his job by a woman who was also Persian."

For the most part, Pourteymour's appeal rests on the impact this reference to the parties'

Persian culture had on trial court proceedings.

       When this colloquy between jurors came to the attention of the trial court during

the second day of deliberations, the trial court, with the assistance and acquiescence of

counsel for the parties, carefully and fully investigated whether the statement exhibited

the sort of bias which would require that the juror who responded be excused or was

                                              3
merely a benign expression of the juror's own life experience brought to bear with respect

to a matter in dispute between the parties. During the course of the trial court's inquiry, it

became apparent that, rather than reflecting any material impact on other jurors or

improper bias, disclosure of the colloquy may have been driven by differences between

the jury foreman, who reported the colloquy, and the juror who offered his opinion as to

Pourteymour's motives, as to the merits of the parties' claims. This inference grew out of

the fact that the jury foreman did not make any report of it until a day after it occurred

and differences between jurors on the merits had become evident, and the fact that at least

one other juror insisted on being heard on the issue and in support of the juror who had

opined with respect to the role Pourteymour's Persian heritage played in his behavior.

       Following its inquiry, the trial court believed that it had two alternatives. Because

of the apparent division in the jury as a whole as to the merits and between the foreman

and the juror who made the controversial statement, the trial court determined that if it

excused the juror who made the statement, it would also have to excuse the jury foreman

so as not to suggest to the jury that the trial court supported the foreman's view of the

merits. On the other hand, the trial court believed it could also admonish the jurors about

their duty to act in an unbiased fashion and obtain from them a renewed commitment to

do so. The parties and, in particular, Pourteymour, did not want both the foreman and the

juror excused and did not object to the trial court's proposal that the jurors simply be

admonished.

       The trial court did not abuse its discretion in determining that, if it excused the

juror who made the statement, it would also have to excuse the foreman; given the

                                              4
apparent differences with respect to the merits, the trial court could properly conclude

that, in order to avoid making any suggestion with respect to the merits, both the juror

and the 0foreman would have to be excused. Pourteymour's apparent unwillingness to

excuse the foreman largely forecloses any contention on appeal that the trial court erred

in admonishing and retaining the juror who made the statement about his heritage.

       Moreover, as we explain more fully below, in dealing with the issues that arose as

a result of the juror's statement, the trial court did not abuse its discretion in admonishing

the jurors rather than excusing the juror. A juror may, as appears from the record here,

make statements which, although they concern the gender, ethnicity or race of parties or

witnesses, merely express the juror's life experience with respect to an issue in

controversy at trial. (See People v. Allen and Johnson (2011) 53 Cal.4th 60, 66, 76 [no

misconduct in juror statement that " 'Hispanics . . . never cheat on time cards,' " rather

permissible reliance by juror on life experience] (Allen); People v. Wilson (2008) 44

Cal.4th 758, 824-825 [African-American juror should not have been excused for telling

other jurors in death penalty case they did not understand what it was like to grow up as a

black child; again, statement merely reflected juror's life experience] (Wilson).)

                    FACTUAL AND PROCEDURAL BACKGROUND

       A. Parties

       Mani was born in Iran, and her native language is Farsi. She is a physician and

ophthalmologist, as are her two brothers. Mani and her brothers own an ophthalmology

clinic in Chula Vista, as well as a satellite clinic in El Centro. In addition, Mani owns

and operates a cosmetic care clinic in La Jolla.

                                              5
       Mani is married to Darush Mohyi, who is also a physician. Mohyi practices in an

Orange County clinic, as well as at a satellite office located in Mani's La Jolla cosmetic

care clinic. Mani and Mohyi live in La Jolla.

       Pourteymour also immigrated to the United States from Iran. He came here at the

age of 14 with his parents, went to a local high school, and became an airline pilot.

Although he is not a licensed financial advisor, real estate salesperson or broker, he began

putting together real estate partnerships with other pilots; Pourteymour would often

charge his investment partners a finder's fee for property he found and use the finder's fee

as his capital contribution to a venture.

       B. Investments

       Mani, Mohyi and Pourteymour socialized in the Persian community in La Jolla

and met at some point in 2005 or 2006. Both Mani and Mohyi became very close to

Pourteymour and they saw each other five or six times a week for dinner, drinks and

backgammon.

       At one point, Mani and Mohyi loaned Pourteymour $1 million, which he used to

acquire a home in La Jolla. After he acquired the home, Pourteymour convinced Mani

and Mohyi to use the proceeds of loan to invest in a commercial building he owned.

Mani and Mohyi invested in other real estate ventures Pourteymour owned and hired him

as an investment consultant for two years.

       C. First Lawsuit

       In 2008, Mani and Mohyi became dissatisfied with the investments and investment

advice offered by Pourteymour, and their investment and consulting relationship with

                                             6
Pourteymour ended. Pourteymour then filed a complaint against Mani and Mohyi,

which, among other claims, alleged causes of action for defamation. The lawsuit was

settled in 2009. Also in 2008, Pourteymour was involved in a motorcycle accident in

which he was severely injured; following the accident, he filed a complaint against the

Harley-Davidson Motorcycle Company (Harley-Davidson). Harley-Davidson eventually

prevailed in the litigation.

       D. These Proceedings

               1. Pourteymour's Complaint

       In July 2012, Pourteymour filed a second lawsuit against Mani. Pourteymour

alleged causes of action for slander, intentional infliction of emotional distress,

interference with contractual relations, and interference with economic advantage.

Pourteymour alleged these claims grew out of statements Mani made about him to others

to the effect that Pourteymour: is a liar; provides sex to a wealthy, elderly woman in

exchange for money to pay his mortgage; has lost money for all the pilots who have done

business with him; is a thief and corrupt; is being investigated by the San Diego Chief of

Police; has had his home raided by the FBI; should not be allowed to borrow from a local

bank; has never been an airline pilot; should not be trusted; and has stolen millions from

Mani and her family. The complaint further alleged that Mani told others that Mani

bought his home for him.

               2. Mani's Cross-Complaint

       Mani responded to the complaint by filing an answer that denied all material

allegations of Pourteymour' complaint; Mani also filed a cross-complaint against

                                              7
Pourteymour. Mani's cross-complaint alleged a single cause of action for slander; in

particular, she alleged Pourteymour had told at least one other person that Mohyi had

paid Pourteymour "$1,000,000 so that Pourteymour would have sex with Dr. Mani" and

that "Mani had undressed in front of Pourteymour and begged him to have sex with her."

             3. Trial

                    i. Pourteymour's Case Against Mani

      In support of his claims against Mani, Pourteymour relied on the testimony of his

friend and banker, Sandra Redman. Redman was the manager of the private banking

division of California Bank & Trust (CBT), where Pourteymour had approximately $7

million in outstanding loans that Redman managed for the bank. Pourteymour and

Redman were also close, personal friends. Mani's brother also banked at CBT, where the

family's business accounts were managed by Redman.

      In the spring of 2012, Pourteymour and Redman were disappointed that

Pourteymour's attempt to join the community advisory board of a local hospital had

apparently been thwarted by Mani, who had admitting privileges at the hospital and had

related to a hospital administrator that she had been sued by Pourteymour and would not

be comfortable at hospital fundraising events if Pourteymour were present. According to

Redman, thereafter she received treatment from Mani at her cosmetic care clinic and later

spoke to Mani on the telephone about Pourteymour. Redman testified during that

conversation Mani made the slanderous statements which were the basis of

Pourteymour's claims against Mani.

      As we indicated, Mani impeached Redman's testimony. Mani did so by calling

                                            8
Redman's coworkers and supervisor, who testified that Redman had not documented

what Mani allegedly told her about Pourteymour's character or alerted anyone else in the

bank about the information and that, given Pourteymour's substantial outstanding loans,

she should have done so. Mani was also able to show through telephone records and

records of her own patient schedule that it was somewhat unlikely that she had the

lengthy telephone conversation with Redman on the date Redman claimed the

conversation occurred.

        Mani also presented evidence from a woman Pourteymour had been dating in

2011 and 2012, Aloha Taylor. Taylor testified that Pourteymour seemed obsessed with

Mani and, at one point, approached her and asked her to give false testimony against

Mani.

                      ii. Mani's Claims against Pourteymour

        As we noted, Pourteymour did not deny making statements to a number of other

people in the Persian community to the effect that Mani wanted to have sex with her and

on one occasion disrobed in front of him at his home. Rather he claimed the incident was

true and that in fact he did have sex with her at his home. Mani denied having any sexual

interest in or activity with Pourteymour.

               4. Jury Deliberations

        After nearly a month of trial, the parties presented their closing arguments.

During his closing argument, in the course of discussing Pourteymour's initial lawsuit

against Mani, Mani's counsel told the jury: "to have Dr. Mani, and I would suggest to you

particularly in this culture, a woman, tell [him] that she doesn't need his services because

                                              9
they're of no value, what she got for that was a lawsuit." Although Pourteymour was

represented by counsel with respect to his claims against Mani and separate counsel with

respect to Mani's claims against him, neither counsel made an objection to this argument.

       Following argument, the jury was instructed and retired. The following morning,

after a full day of deliberation, the trial court received a note from the jury foreman, Juror

No. 8. The note stated that another juror, Juror No. 11, "voiced his bias towards the

Persian culture and women." With the consent of counsel, the trial court investigated this

claim. The trial court spoke individually to Juror No. 8 and to Juror No. 11. Juror No. 11

explained that after the jury was excused, but before they had even chosen the foreman,

another juror asked him why someone might bring this lawsuit. According to Juror No.

11, he responded by stating: "He probably didn't like the fact that, one, he couldn't

continue his job; and he probably didn't like the fact that he got fired by a woman,

especially a Persian woman."

       Mani's counsel responded to what Juror No. 8 reported and what Juror No. 11

stated by arguing that he believed that, based on the fact Juror No. 8 waited a full day

before reporting what he heard, there was a real possibility Juror No. 8 was not so much

concerned about what Juror No. 11 said, but rather was attempting to have Juror No. 11

discharged because he disagreed with Juror No. 11 with respect to the merits. Mani's

counsel urged the trial court to question other jurors to confirm his concern. Literally,

while the trial court was considering counsel's argument, the bailiff gave the trial court a

note which stated a third juror, Juror No. 10, was "adamant you should speak to all

jurors."

                                             10
       The trial court then spoke again to Juror No. 8, who conceded that a majority of

the jury objected to him sending in the note. The trial court then spoke to Juror No. 10

individually. Juror No. 10 reported that, during their deliberations the previous day, the

jury had been making progress and that the rest of the jury was shocked when that

morning the foreman wanted to send the trial court a note about Juror No. 11. Juror No.

10 believed it was unfair the foreman singled out Juror No. 11. Juror No. 10 also

believed that there seemed to be some friction between Juror No. 8 and Juror No. 11.

Finally, Juror No. 10 stated that he had not heard Juror No. 11's remark.

       After speaking individually to Juror No. 8, Juror No. 11, and Juror No. 10, and

based on the evidence there was some discord between Juror No. 8 and Juror No. 11, as

well as potential differences on the merits within the jury, the trial court expressed its

concern that discharging only Juror No. 11 might send the jury a message with respect to

the court's view of their differences. The court stated: "I think it's problematic in terms

of jurors fairly and impartially reviewing the evidence, deliberating and discussing, if I'm

removing one and not the other. And I think that's problematic." Rather than remove any

jurors, the trial court advised the parties it would talk to Juror No. 8, Juror No. 11 and

Juror No. 10 and ask them individually if they could be fair and impartial going forward.

As we discuss more fully below, the parties did not object to the trial court's proposal.

Thereafter, the trial court spoke again individually to Juror No. 8, Juror No. 11 and Juror

No. 10, and they each assured the trial court they could be fair and impartial.

              5. Verdict

       The jury returned a verdict in favor of Mani on Pourteymour's complaint against

                                              11
her. As to some specific slander allegations, the jury was unanimous, as to others, it was

divided 11 to one in Mani's favor or nine to three.

       The jury's verdict was also in Mani's favor on her cross-complaint against

Pourteymour. The jury unanimously agreed Pourteymour had told others Mani had

disrobed in front of her and that he had sexual relations with her. The jury was divided

10 to 2 with respect to whether Mani actually disrobed in front of him, and the jury was

divided 9 to 3, with respect to whether Pourteymour had sexual relations with Mani. The

jury found Mani had suffered $250,000 in damages.

       In a separate punitive damages portion of the trial, the jury imposed $2.5 million

in exemplary damages.

                                      DISCUSSION

                                              I

       As we indicated at the outset, on appeal Pourteymour's principal contention

concerns Juror No. 11's statements with respect to the parties' Persian heritage. In light of

those statements, Pourteymour argues the trial court erred in failing to excuse Juror No.

11 and thereafter in failing to grant Pourteymour's motions for a mistrial and a new trial.

As we explain more fully, Pourteymour largely consented to the trial court's

determination of the issue, and, in any event, Juror No. 11's statements did not warrant

his removal from the jury.

       A. Juror Misconduct

       Claims of juror misconduct pose particular and difficult challenges for trial courts.

Quite recently, the Supreme Court considered a claim of juror misconduct in a death

                                             12
penalty case and found that, in the end, in the course of investigating the misconduct

claim, the trial court unnecessarily interfered in the jury's deliberations and erred in

removing a juror. (People v. Nelson (2016) 1 Cal.5th 513 (Nelson).) In Nelson, the court

noted: "Our state Constitution independently declares that '[t]rial by jury is an inviolate

right and shall be secured to all . . . .' (Cal. Const., art. I, § 16.) We similarly have

emphasized that the federal and state constitutional right to a trial by an impartial jury

includes the right to a jury 'in which no member has been improperly influenced' and that

protecting a jury's impartiality ' "assures the privacy of jury deliberations by foreclosing

intrusive inquiry into the sanctity of jurors' thought processes." ' " (Id. at p. 568.) Thus,

" 'an important element of trial by jury is the conduct of deliberation in secret, free from

" ' "intrusive inquiry into the sanctity of jurors' thought processes." [Citation.]' "

[Citation.] Secrecy affords jurors the freedom to engage in frank discussions, free from

fear of exposure to the parties, to other participants in the trial, and to the public.

[Citations.] The mental processes of deliberating jurors are protected, because "[j]urors

may be particularly reluctant to express themselves freely in the jury room if their mental

processes are subject to immediate judicial scrutiny. The very act of questioning

deliberating jurors about the content of their deliberations could affect those

deliberations. The danger is increased if the attorneys for the parties are permitted to

question individual jurors in the midst of deliberations.' [Citation.]" (Id. at pp. 568-569,

italics omitted.)

       Nonetheless, "the secrecy of deliberations 'may give way to reasonable inquiry by

the court when it receives an allegation that a deliberating juror has committed

                                               13
misconduct.' [Citation.] Even then, however, trial courts 'must exercise care in

responding to an allegation from a deliberating jury that one of their number is refusing

to follow the court's instructions or is refusing to deliberate' or is engaging in any form of

juror misconduct. [Citation.] [¶] . . . [¶] Thus, a trial court may intervene in jury

deliberations where it receives reports of juror misconduct or in response to an impasse,

but such interventions must be limited and undertaken with the utmost respect for the

sanctity of the deliberative process." (Nelson, supra, 1 Cal.5th at p. 569.)

       In Nelson, during the penalty phase of the jury's deliberations, the jury appeared

deadlocked. In responding to the deadlock, the trial court gave the jury a questionnaire

prepared by the prosecutor, which among other matters asked each juror whether there

was anything the trial court might do to assist the jury in reaching a verdict. The

responses the trial court received led to further investigation by the trial court, which

excused one of the two holdout jurors on the grounds that she had not fully and honestly

responded to voir dire questions. On appeal, the trial court found the questionnaire and

the removal of one of the two holdout jurors was prejudicial error because it put pressure

on all the jurors to go along with the majority. The court found that taken together, the

questionnaire and the removal of the holdout juror conveyed a message that the trial

court's inquiry and concern was directed at holdout jurors, not jurors in general. (Nelson,

supra, 1 Cal.5th at pp. 569-570.) Nelson makes it plain the very process by which a trial

court investigates claims of juror misconduct may itself improperly intrude upon and

influence jury deliberations. There is of course no doubt that "[a] juror who is actually

biased is unable to perform the duty to fairly deliberate and thus is subject to discharge."

                                              14
(People v. Barnwell (2007) 41 Cal.4th 1038, 1051(Barnwell).) On the other hand,

" 'Jurors cannot be expected to shed their backgrounds and experiences at the door of the

deliberation room.' " (Allen, supra, 53 Cal.4th at p. 76, quoting People v. Fauber (1992)

2 Cal.4th 792, 839.) " 'Jurors' views of the evidence . . . are necessarily informed by their

life experiences, including their education and professional work.' [Citation.] '[D]uring

the give and take of deliberations, it is virtually impossible to divorce completely one's

background from one's analysis of the evidence. We cannot demand that jurors,

especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer

to their background during deliberations. . . . [¶] 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 misconduct.' [Citation.] '[T]he jury is a

"fundamentally human" institution; the unavoidable fact that jurors bring diverse

backgrounds, philosophies, and personalities into the jury room is both the strength and

the weakness of the institution.' " (Wilson, supra, 44 Cal.4th at p. 830.)

       The fine line between impermissible bias and inevitable life experience can, in

important respects, be discerned in the circumstances and dispositions of our Supreme

Court in Barnwell, Allen and Wilson. In Barnwell, the trial court discharged a juror in a

death penalty case because the court found, based on its interview with other jurors, that

one juror was unwilling to believe the testimony of police officers. (Barnwell, supra, 41

Cal.4th at p. 1053.) In finding no error in the trial court's discharge of the juror, the

Supreme Court stated: "The totality of the evidence here supports the trial court's evident

                                              15
conclusion that, more than simply disbelieving the testimony as given by these particular

witnesses, [the juror] judged their testimony as given by a different standard because the

witnesses were police officers. Applying such different standards to the evaluation of

different witnesses is, of course, contrary to the court's instructions and violative of the

juror's oath of impartiality." (Ibid.)

       In Allen, the trial court discharged a juror who found a prosecution witness not

credible. The prosecution witness claimed he had seen a multiple homicide even though

a timecard at his place of employment showed that he was at work at the time of the

homicides. The witness explained that a Hispanic coworker, Jose, often punched his

timecard in for him. The juror did not believe this aspect of the witness's testimony and

stated: " 'I know Hispanics, they never cheat on timecards, so this witness . . . was at

work, end of discussion.' " (Allen, supra, 53 Cal.4th at p. 66.) In finding this statement

did not represent any misconduct and that the trial court erred in discharging him, the

Supreme Court stated: "[The juror's] positive opinion about the reliability of Hispanics in

the workplace did not involve specialized information from an outside source. It was an

application of his life experience, in the specific context of timecards and the workplace,

that led him to conclude [the witness] was not telling the truth about the shootings." (Id.

at p. 78, fn. omitted.) In distinguishing Barnwell, the court stated: "[The juror] here

expressed no general bias against any group of which the witness . . . might have been a

member. Rather, he drew on his own personal life experience to conclude this witness

lacked credibility because of the explanation he gave for a critical discrepancy. [¶] It

may be argued that [the juror's] conclusion was based upon a weak premise or rested

                                              16
upon an overbroad inference. Jurors, however, are the judges of credibility, and

conscientious jurors may come to different conclusions. It is not the province of trial or

reviewing courts to substitute their logic for that of jurors to whom credibility decisions

are entrusted. '[T]hat a juror does not deliberate well or relies upon faulty logic or

analysis . . . is not a ground for discharge.' " (Allen, at p. 78.)

       In Wilson, the trial court also discharged a juror for alleged bias. Wilson was also

a death penalty case and the defendant was an African-American. In the penalty phase of

the case, an African-American juror stated he believed the defendant experienced more

abuse as a child than had been disclosed at trial and further that the other jurors would not

understand because they were not African-American. In particular, the trial court found

the juror made the following statements: " ' "You don't understand because you're not

black." . . . "Black people don't admit being abused." "Black kids have a different

relationship with their fathers." ' " (Wilson, supra, 44 Cal.4th at p. 818.) In finding that

these statements did not warrant the juror's discharge, the Supreme Court stated: "A juror

whose personal view was that African-American defendants never should, or always

should, receive the death penalty commits clear misconduct, both by not considering the

particular facts of the case and by making the penalty decision based on racial bias. It

would be equally objectionable were a juror to conclude a particular defendant deserved

the death penalty or life imprisonment because of his or her race. But relying on an

understanding, based on personal experience, of the effects of certain social

environments and family dynamics on a young person growing up, when this

understanding illuminates the significance or weight an individual juror would accord to

                                               17
related evidence in a particular case, is not misconduct." (Wilson, supra, 44 Cal.4th at

p. 831, italics added to last sentence.)

       B. Waiver

       Mani argues Pourteymour waived any objection to Juror No. 11's statement about

the parties' Persian culture. We largely agree.

       As we have discussed, following the trial court's investigation of Juror No. 11's

statement, the trial court expressed its concern that, if it discharged Juror No. 11, it would

also have to discharge the jury foreman.

       In reaching this conclusion, the court in no sense abused its discretion or otherwise

erred. Rather, in recognizing the potential that discharging Juror No. 11 alone might

interfere in the jury's deliberations, the trial court simply fulfilled the responsibilities

recently discussed by the Supreme Court in Nelson.

       The record is also clear Pourteymour acquiesced in the trial court's conclusion

about its alternatives. Immediately after the trial court advised the parties that it believed

the foreman would have to be discharged if Juror No. 11 was discharged, and that rather

than discharge any jurors, it proposed simply once again inquiring whether the three

jurors believed they could be fair and impartial, on the record all counsel agreed. In

particular, defense counsel for Pourteymour promptly stated: "I have no objection to

that." Very shortly later in the proceedings, counsel prosecuting Pourteymour's claims

against Mani, also expressly agreed to the trial court's proposal.

       Thus, in simple practical terms, the record here shows Pourteymour and his

counsel were presented with a fairly clear choice: they could make an express and

                                               18
unambiguous objection to the trial court's decision to leave Juror No. 11 on the jury and

run the very real risk that the trial court would also excuse Juror No. 8, who appeared to

be favoring Pourteymour, or agree with the trial court's disposition of the bias issue. In

an apparent decision to keep Juror No. 8 on the jury, Pourteymour and his counsel chose

the latter course. In doing so, Pourteymour plainly waived any objection on appeal to the

trial court's proposal.

       It is axiomatic that in the trial court a party may not withhold an objection to

evidence or procedure, wait for the trial court's decision on the merits, and then raise the

objection on appeal if the party receives an adverse ruling on the merits. (Tyler v. Norton

(1973) 34 Cal.App.3d 717, 722; see also Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 262,

247 [appellant forfeits trial court's failure to poll juror by not raising issue]; People v.

Stanley (2006) 39 Cal.4th 913, 950-951 [specific objection to juror misconduct required

to preserve issues on appeal].) Litigants "cannot play 'Heads I win, Tails you lose' with

the trial court." (Tyler v. Norton, supra, at p. 722.) This is of course especially apt here,

where the trial court's ruling at least in part benefitted the appealing party: here, the trial

court's resolution not only kept Juror No. 11 on the jury, but also Juror No. 8.

       We recognize that, later in the deliberations, counsel prosecuting Pourteymour's

claims against Mani asked for a mistrial because he believed that both Juror No. 11 and

Juror No. 10 were wearing Harley-Davidson T-shirts and because evidence of

Pourteymour's unsuccessful personal injury litigation against Harley-Davidson had been

presented at trial; he argued that in context the T-shirts showed bias against his client.

Pourteymour's defense counsel expressly did not join in the motion. Because it involved

                                               19
a great deal of speculation as to the meaning of the T-shirts, the trial court denied the

motion. The later objection to the T-shirts, especially because Pourteymour's defense

counsel did not join in the motion, was not directed at Juror No. 11's remarks and did not

clearly challenge the trial court's determination that if Juror No. 11 was discharged, Juror

No. 8 would be discharged as well. Thus, it did not preserve the trial court's resolution of

Juror No. 11's remarks as grounds for appeal.

       C. Juror No. 11's Statements

       Notwithstanding Pourteymour's acquiescence in the trial court's decision to keep

both Juror No. 11 and Juror No. 8 on the jury, Juror No. 11's remarks did not provide any

basis for removing him. The remarks plainly fell within the category of life experience

which jurors may bring to bear in considering specific issues raised by the parties at trial.

(See Allen, supra, 53 Cal.4th at p. 78; Wilson, supra, 44 Cal.4th at p. 831.)

Pourteymour's motive for bringing claims against Mani was, without objection, expressly

raised by her attorney in his closing argument; as we have noted, without objection,

counsel stated that the parties' culture played a role in Pourteymour's reaction to being

discharged by Mani. In repeating this argument almost verbatim, Juror No. 11 did not

engage in conduct which suggested that he could not act fairly and impartially but

merely, as in Allen and Wilson, brought to bear his own life experiences. Thus, the trial

court did not err in its disposition of the statements Juror No. 11 made at the outset of the

jury's deliberations.

                                              II

       Pourteymour also argues the trial court should have granted his motion for a

                                             20
mistrial, which, as we have noted, was based on the fact Juror No. 10 and Juror No. 11

were seen wearing Harley-Davidson T-shirts. Although Pourteymour was injured in a

motorcycle accident and made unsuccessful claims against Harley-Davidson and that

circumstance was presented to the jury, the fact that, like Pourteymour himself, two

jurors appeared also to be motorcycle enthusiasts was no grounds for concluding that the

jurors were biased against Pourteymour, or had otherwise engaged in any misconduct.

                                            III

       In an effort to support his claim Mani told Redman he was a "crook," Pourteymour

offered testimony from friends who had allegedly heard similar remarks. The trial court

permitted testimony from witnesses who claimed to have heard the remarks in 2012.

However, Pourteymour also offered testimony from a La Jolla real estate agent and

friend, Maxine Gellens; if permitted, Gellens would testify that in 2008, Mani contacted

her, they met, and Mani disparaged Pourteymour's honesty and integrity. The trial court

excluded Gellens's proposed testimony on the grounds that its probative value was

outweighed by its remoteness in time and the undue consumption of time it would

involve. (Evid. Code, § 352.) The court was also concerned about the fact that the

alleged statements may have been within the scope of the parties' first settlement

agreement.

       We review the trial court's ruling on the proffered Gellens's testimony for abuse of

discretion. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th

619, 639-640.) Given its remoteness in time and the potential of relitigating collateral

issues with respect to the circumstances under which the statements to Gellens were

                                            21
allegedly made, we find no abuse of discretion.

                                              IV

       Finally, Pourteymour challenges the jury's imposition of $2.5 million in punitive

damages. We find no error.

       In establishing Pourteymour's net worth, as required by Adams v. Murakami

(1991) 54 Cal.3d 105, 111-112, Mani relied on a 2011 financial statement Pourteymour

had given CBT at the time he obtained loans from the bank. The 2011 statement showed

that Pourteymour had a net worth of $30.5 million. Mani also relied on the fact that,

during the course of the parties' 2014 trial, he had obtained $10 million in refinancing

from another bank, as well as his concession at trial that the bulk of his assets consisted

of real estate holdings and that, since the time of his 2011 financial statement, the value

of real estate had increased.

       Contrary to Pourteymour's argument on appeal, this record was sufficient to show

that he had a net worth in excess of $30 million. While it is true his 2011 financial

statement was three years old at the time of trial, that fact went to its weight, not the

sufficiency of all the evidence Mani presented on the issue. Indeed, the relatively large

size of Pourteymour's net worth was corroborated by Pourteymour's ability to obtain a

several million dollar loan at the time of trial. (See Zaxis Wireless Communications, Inc.

v. Motor Sound Corp. (2001) 89 Cal.App.4th 577, 583 [ability to borrow substantial sums

evidence of ability to pay punitive damages].) Thus, we reject his contention that Mani

failed to establish his net worth.

       We also reject his contention that the $2.5 million imposed was excessive. It was

                                              22
less than 10 percent of Pourteymour's likely net worth, and only a multiple of 10 times

Mani's compensatory damages. As such, it was well within the general parameters our

courts have set on punitive damages. (See Weeks v. Baker & McKenzie (1998) 63

Cal.App.4th 1128, 1166; Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th

1159, 1182, fn. 7.)

       Finally, Pourteymour's conduct certainly warranted imposition of substantial

exemplary damages. His statements about Mani, which he conceded making to a number

of people, were false, degrading and humiliating, and plainly designed to severely

damage Mani's reputation in the community in which she lived and worked. (See Roby v.

McKesson Corp. (2009) 47 Cal.4th 686, 713.)

                                     DISPOSITION

       The judgment is affirmed. Mani to recover her costs of appeal.




                                                                               BENKE, J.

WE CONCUR:


McCONNELL, P. J.


IRION, J.




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