California Court of Appeal Aug 7, 2013 No. D059316Unpublished
Filed 8/7/13 Buckley v. De Jong CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA
JAMES BUCKLEY, D059316
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2009-00092288- CU-BC-NC) ARIE DE JONG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David G.
Brown, Judge. Reversed.
Niddrie, Fish & Addams, David A. Niddrie; White and Bright, Leigh A. Rayner
and Randolph W. Ortlieb for Defendant and Appellant.
Law Offices of Neal A. Markowitz, Neal A. Markowitz; Lepine Law Group, Amy
J. Lepine, Charles L. Pratt and Sara A. Simmons for Plaintiff and Respondent.
In this breach of contract case, we reverse the $2.8 million verdict entered in favor
of the plaintiff. The record demonstrates that jurors, who believed the plaintiff was not
entitled to any damages, compromised their view of the evidence in order to reach a
verdict rather than because they agreed the plaintiff established the right to a substantial
recovery. Our conclusion is based on the responses the trial court gave the jury to
questions they had during the course of deliberation, affidavits of jurors with respect to
what took place during deliberation, and the fact that the amount awarded was
substantially less than the principal damages theory advanced by the plaintiff at trial.
proof of 'statements made . . . either within or without the jury room . . . .'" (In re
Stankewitz, supra, 40 Cal.3d at pp. 397-398; see also People v. Pierce (1979) 24 Cal.3d
199, 208.)
Here, the bulk of the statements set forth in DeJong's juror affidavits are
admissible under Evidence Code section 1150 in that they set forth statements made by
the foreman and other jurors during deliberations and the voting procedure adopted by
the jury foreman following the trial court's responses to the jury's questions. However,
some portions of the affidavits are objectionable in that they purport to set forth the
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reasoning employed by two jurors who initially were unwilling to award substantial
damages and later voted to award Buckley $2.8 million. We have not relied on those
objectionable statements in determining whether the jury reached an improper
compromise verdict.
C. Compromise Verdicts
1. Legal Principles
Where the record shows a verdict was probably the result of prejudice, sympathy
or compromise, or that for some other reason the liability issue was not actually
determined by the jury, the verdict must be set aside in its entirety. (8 Witkin, Cal.
Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 106 et seq., pp. 700-701.)
The question of whether a verdict was the result of improper compromise usually arises
in cases where the damages awarded are inadequate as a matter of law, and the trial court
must determine whether a new trial on the issue of liability, as well as damages, must be
ordered. In such instances, where in addition to the inadequacy of damages other
circumstances show the probability of a compromise verdict, a new trial on both liability
and damages is required. (See Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 841;
Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1346; Wilson v. R.D. Werner
Co. (1980) 108 Cal.App.3d 878, 883.)
Indicators of a compromise verdict are: (1) a close verdict; (2) jury requests for
readback and jury questions; (3) jury indecision whether the plaintiff should recover a
certain amount or nothing; (4) a subsequent jury election to straddle and award a
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compromise recovery in a lesser amount than that to which the plaintiff would be entitled
if the plaintiff prevailed; and (5) lengthy deliberations. (Leipert v. Honold (1952) 39
Cal.2d 462, 468-470; Lauren H. v. Kannappan, supra, 96 Cal.App.4th at p. 841.)
2. Legal Analysis
Although the circumstances here do not fit entirely within the rubric of cases
where a compromise verdict has been found, in that the $2.8 million verdict the jury
returned here is not so small and out of proportion to the evidence of damages as to be
inadequate as a matter of law, in other material respects, the record establishes a
convincing case the verdict represents an improper compromise by jurors who, although
they did not believe Buckley was entitled to any recovery, felt compelled to reach a
verdict that would have the support of nine members of the jury.
With respect to the amount of damages awarded, it is significant that, as DeJong
points out, although the amount is substantial, there is no evidentiary or theoretical
support for a $2.8 million award. In this regard, we note that during her rebuttal
argument to the jury, Buckley's counsel told the jury there was no evidence to support
any claim for any amount other than Buckley's demand for $5 million: "So what money?
The only number we have heard is $5 million. That's the only number." In discussing a
response to one of the jury's question, Buckley's counsel again reiterated the limited
nature of the damages evidence Buckley presented: "That's what I said in my rebuttal:
There was no evidence to support any claim for any amount other than the 5 million." In
arguing against providing the jury with any response which permitted a lesser amount of
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damages, Buckley's counsel emphasized that Buckley had dismissed his quantum meruit
claim precisely to avoid a smaller verdict.
The only theory which arguably supports a $2.8 million verdict is one which was
never presented to the jury: the proposition DeJong did not promise to pay Buckley $5
million but instead promised to pay Buckley an amount sufficient to start a trash-to-
compost facility. Although there is considerable evidence Buckley planned to use the
money he believed he would be receiving from DeJong to start a trash-to-compost
facility, Buckley never testified that the amount due on his agreement with DeJong was
tied to the amount needed to go into the trash-to-compost business. Rather, Buckley
consistently testified, and his counsel urged, that DeJong simply promised to pay Buckley
$5 million.
Thus, although, as we have indicated, this is not a case where the damages are
inadequate as a matter of law, the evidence presented by Buckley and the theory of
liability he argued are at such odds with the result reached by the jury, a similar inference
of improper compromise arises.
In addition to the inference of compromise which arises from the sharp disparity
between the verdict on the one hand and the evidence and argument on the other, the
manner in which the jury deliberated provides important additional and powerful indicia
of a compromise verdict. The jury's questions to the trial court are unmistakable
evidence that the jurors were sharply divided over whether Buckley should recover a
certain amount or nothing. As we have noted, the record shows that after asking two
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questions about whether they were bound to award $5 million or nothing and being
advised that they could award a lesser amount, the jury nonetheless reported that, after
still further deliberation, they had reached a seven to five impasse. Thus, the record
shows that very shortly before the jury returned its verdict, it was clearly divided between
those who wanted to award nothing and those who wanted to award substantial damages.
(See Lauren H. v. Kannappan, supra, 96 Cal.App.4th at p. 841.)
The inference of compromise is reinforced by the fact the jury deliberated for nine
hours over three days as well as by the closeness of the eventual nine to three verdict.
(See Leipert v. Honold, supra, 39 Cal.2d at pp. 468-470.) The voting process used by the
jury foreman also strongly suggests some of the assenting jurors compromised their
views of liability. There is no dispute in the record that, as reported by the juror
affidavits submitted by DeJong, the jury foreman attempted to achieve a verdict first by
having the jurors vote on diminishing damages amounts and then, when that was
unsuccessful, conducting votes on increasing amounts of damages. In a case where the
evidence and theory advanced by the plaintiff permit a range of damages and there is no
sharp difference among the jurors as to liability, such a voting process might suggest an
honest attempt to achieve a principled consensus. Here, however, where there was no
evidence or theory that suggested a range of damages, and there was clear evidence the
jury was at an impasse between those who wanted to award nothing and those who
wanted to award substantial damages, the voting method adopted by the jury foreman
strongly suggests that the eventual verdict was the result of improper bargaining rather
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than any conviction based on what jurors believed the evidence supported.
The sequence of events before and after the jury notified the trial court it was at an
impasse is also of some import. After the jury reported that, notwithstanding several
hours of deliberations and two earlier questions of the trial court, it was still at an
impasse, rather than declaring a mistrial and releasing the jurors, the trial court responded
by instructing the jury to continue deliberating. Shortly thereafter and, by virtue of
voting on an increasing level of damages, a verdict was returned. This sequence of
events gives rise to a clear inference the verdict was a compromise driven by a desire to
complete deliberations, rather than by any conviction the amount awarded was proper.
In sum, based on our independent review of the record, we are convinced the jury's
verdict was probably the result of improper bargaining or compromise, and the judgment
entered on the verdict must be reversed.1
1 Because the jury's compromise verdict requires that we reverse the judgment and remand the case for further proceedings, we do not reach the remaining issues DeJong raises on appeal. In particular, we do not consider DeJong's contention there was no meeting of the minds with respect to the 2005 agreement. We note that, contrary to DeJong's argument, there was evidence, in the form of testimony from Buckley, of the terms of an agreement and DeJong's express assent to those terms. At trial, Buckley testified that in 2006, DeJong agreed to his terms: "Q: I believe you had told us that [DeJong] eventually did agree to your terms, right? "A: Right." According to Buckley, DeJong's assent came in a telephone conversation. Buckley described those terms in the following testimony: "Q: If Mr. DeJong's way worked and he was successful and he convinced them, when was your money due? "A: Not until it was presented to the city on the agenda, and it was a resolution passed stating they would open the city's competition. "Q: And if his way did not work, when was your money due? "A: As soon as we found out, as soon as it was known that his way would not 16
II
For the guidance of the parties and the trial court on remand, we briefly discuss an
issue which arose on appeal.
As we have discussed, according to Buckley, under his 1994-1997 agreements
with DeJong, he was to receive a partnership interest in any successful trash collection
franchise DeJong obtained in Poway, Encinitas or Escondido. Buckley described his
agreement with respect to Poway as follows: "If we broke up the City of Poway and Arie
was to get the bid, we would become equal partners and he would put up the money for
the franchise." This description of the nature of his agreement with DeJong gave rise to
questions we posed to the parties, to wit: 1) was Buckley's work with respect to Poway,
Encinitas and Escondido contingent on DeJong being awarded trash contracts by those
cities; and 2) would such a contingent agreement violate public policy. (See Crocker v.
United States (1916) 240 U.S. 74, 79-80; Gov. Code, § 86205.)
There is little doubt that, as described by Buckley, his compensation under the
1994-1997 agreements was contingent on DeJong being awarded the respective
municipal trash contracts. Moreover, a very substantial argument can be made that such
work." Buckley also testified at his deposition, which was introduced at trial and at trial itself, that the amount due was $5 million: "'[Q]: [Y]ou don't know at which of these locations it was that Mr. DeJong promised you $5 million, true? "'[A]: Correct.'" In short, Buckley testified that DeJong expressly agreed he would pay Buckley $5 million if: 1) the San Marcos City Council agreed to open bidding, or 2) it decided it would not open bidding. 17
an agreement was void as against public policy. The United States Supreme Court
explained the law's unwillingness to enforce such agreements in Providence Tool Co. v.
Norris (1864) 69 U.S. 45: "Agreements for compensation contingent upon success,
suggest the use of sinister and corrupt means for the accomplishment of the end desired.
The law meets the suggestion of evil, and strikes down the contract from its inception.
[¶] There is no real difference in principle between agreements to procure favors from
legislative bodies, and agreements to procure favors in the shape of contracts from the
heads of departments. The introduction of improper elements to control the action of
both, is the direct and inevitable result of all such arrangements." (Id. at p. 55, fn.
omitted.)
Significantly such agreements are void even if the parties act without any corrupt
motive or intent: "[A]ll [such] agreements for pecuniary considerations to control the
business operations of the Government . . . or the ordinary course of legislation, are void
as against public policy, without reference to the question, whether improper means are
contemplated or used in their execution." (Providence Tool Co. v. Norris, supra, 69 U.S.
at p. 56.)
At this juncture, we do not believe it is appropriate to resolve the question of
whether the 1994-1997 contracts were void as against public policy. This defense was
not litigated in the trial court and, hence, Buckley did not have the opportunity to fully
contest its application to the 1994-1997 agreements and his claims against DeJong based
on the parties' later 2005 agreement. In this regard, the record here does not permit us to
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definitively determine whether any public policy defect in the earlier agreements, if it
exists, also effects the later agreement.
Thus, on remand, DeJong may, along with other defenses, attack Buckley's claims
on public policy grounds, and Buckley may fully contest application of that defense.
DISPOSITION
The judgment is reversed and remanded. DeJong to recover his costs of appeal.