California Court of Appeal Sep 26, 2016 No. D067225Unpublished
Filed 9/26/16 Pourteymour v. Mani CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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
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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
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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
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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.
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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
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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
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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
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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
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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."
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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
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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
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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."
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(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
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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
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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
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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
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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
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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
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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
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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
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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.
23
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in admonishing rather than excusing a juror who made comments regarding the parties' Persian heritage, as the comments reflected the juror's life experience rather than impermissible bias. The court further affirmed the judgment, rejecting claims of jury misconduct, evidentiary error, and excessive punitive damages.
Issues
Whether the trial court abused its discretion by admonishing rather than excusing a juror who made comments regarding the parties' Persian heritage.
Whether the trial court's investigation into alleged juror misconduct improperly intruded upon jury deliberations.
Whether the jury's award of $2.5 million in punitive damages was excessive.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“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.”
“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.”
“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”