Filed 5/21/13 Tamas v. T.L Pavlich Construction CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JOE TAMAS,

Plaintiff and Appellant,

v.

T.L. PAVLICH CONSTRUCTION, INC.,

Defendant and Respondent.

 B236044

 (Los Angeles County

 Super. Ct. No. PC034177)

APPEAL from a judgment of the Superior Court of Los Angeles County, Randy 

Rhodes, Judge. Affirmed.

The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Appellant.

Horvitz & Levy, David S. Ettinger, Karen M. Bray; Schaffer, Lax, McNaughton & 

Chen, Clifford L. Schaffer and Kara A. Pape for Defendant and Respondent.

_______________
2

Joe Tamas was injured when his car collided with a parked motor grader owned by 

T.L. Pavlich Construction, Inc. After the jury returned a verdict in favor of Pavlich 

Construction, Tamas moved for a new trial on the ground jurors had engaged in 

misconduct by using toy cars to reenact the accident. The trial court denied the motion. 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Accident

From 2001 to 2003 Pavlich Construction was a contractor on a Los Angeles 

Department of Water and Power project to install a 96-inch diameter main water line 

along Sepulveda Boulevard in the San Fernando Valley. The project required use of 

several large construction vehicles including a motor grader, which is a piece of 

excavation equipment with a protruding steel blade. 

On December 20, 2002 two of the three southbound traffic lanes on Sepulveda 

Boulevard had been incorporated into the median to create a work area—known as work 

area 14—where the accident occurred. The work area was 72 feet wide.

1

 At about 5:15 

p.m., after construction had been completed for the day, Tamas was driving northbound 

when he was sideswiped on the passenger side by a car that was trying to avoid a 

collision with a third car. Tamas swerved and collided with a motor grader parked inside 

the work area, three feet from the line dividing it from the northbound traffic lane. 

Tamas sustained several injuries, including broken ribs and a fractured femur, and 

suffered a heart attack. In March 2004 Tamas filed a first amended complaint asserting 

various claims including one for negligence against Pavlich Construction.

2

 

1 Tamas and Pavlich Construction sharply disagree whether the width of the 

permissible work area was all 72 feet or approximately 62 feet as depicted by crosshatching on certain construction documents. We need not resolve this issue. We merely 

refer to the entire section of road as the work area for convenience. 

2 The Department of Water and Power and the City of Los Angeles, which were 

also named in the first amended complaint, entered into a settlement agreement with 

Tamas. 
3

2. Summary of the Evidence Presented at Trial

After the jury in the first trial was unable to reach a verdict, trial before a second 

jury began in late April 2011. William Beardsley testified he was the traffic engineer 

retained by Pavlich Construction to design the traffic control plan for the construction 

project. Beardsley‟s design was predicated in part on plans prepared by the Department 

of Water and Power indicating the location of the pipe to be installed and the minimum 

work area required; specifications from the Los Angeles Department of Transportation as 

to the number of lanes that should be available for traffic and the size of the work area 

required; and the California Traffic Manual. The plan for work area 14, which was 

approved by the Los Angeles Department of Transportation in July 2002, did not require 

use of concrete barriers, known as K-rails,

3

to separate the traffic lane from the work area. 

Javier Corona testified he was a superintendent with Pavlich Construction 

responsible for overseeing the Sepulveda Boulevard project in December 2002. He 

instructed employees to park all vehicles and equipment “side-by-side,” as close together 

as possible and at least two feet from the line dividing the traffic lane from the work 

area—the minimum distanced required by the Department of Transportation—to prevent 

cars from crossing through the construction site after hours and to increase the visibility 

of the equipment. Because of this practice, the motor grader could not be parked farther 

than three feet from the traffic lane on the day of the collision. Corona, who testified 

inspectors from the Department of Water and Power and Department of Transportation 

were at the jobsite daily, agreed with the statement in Pavlich Construction‟s safety 

manual that equipment had to be stored in a manner to reduce collisions with vehicles 

that run off the road whenever practical. He further testified Pavlich Construction would 

have been required to use K-rails to barricade any excavation within five feet of a traffic 

lane to prevent a car that might veer out of the traffic lane from falling into the 

excavation. 

 

3 K-rails are about 30 inches tall and two feet wide at the bottom narrowing to six 

inches at the top. 
4

Weston Pringle, a traffic engineer retained by Tamas to testify as an expert 

witness, opined Pavlich Construction created a dangerous condition by parking the 

construction equipment side by side so close to a traffic lane. Based in part on guidelines 

published by the United States Department of Transportation, the California Department 

of Transportation (Caltrans) and the American Association of State Highway and 

Transportation Officials, Pringle testified the construction equipment should have been 

parked in a linear, parallel configuration as close as possible to the center of the median 

to create a “clear zone” that would allow “an errant vehicle driver [to] recover without 

hitting anything”: “I think the 12 feet that Caltrans referred to would be reasonable. I 

would like to see even farther. But it seemed to me, based on what the plans show, there 

was a lot of room there to keep the equipment away from the travel way; so the farther, 

the better.” 4 Alternatively, the motor grader should have been shielded with a K-rail, 

which is designed to redirect vehicles back onto the roadway with little impact. Pringle 

conceded, however, Pavlich Construction did not violate any rule, law or ordinance by 

parking the motor grader only three feet from the traffic lane. 

Marc Firestone, an accident reconstruction expert with a Ph.D in physics, testified 

on behalf of Pavlich Construction that a 52-foot skid mark in the road demonstrated 

Tamas had been driving in the middle lane—not the lane closest to the work area as he 

had testified—when he was sideswiped by another car. Tamas‟s car skidded diagonally 

at about a 12 degree angle across the lane toward the median and then turned to the left, 

hitting the motor grader at a combined angle of about 68 degrees. Firestone testified 

Tamas would not have hit the motor grader if his car had continued skidding in the initial 

direction. He further testified the damage to Tamas‟s vehicle would have been the same 

whether he hit the motor grader or a K-rail because K-rails are designed to deflect 

 

4 John Squier, a traffic engineer retained by Pavlich Construction, opined the 

absence of incidents during the 14 months prior to Tamas‟s accident demonstrated there 

was no dangerous condition. He also testified the publications Pringle relied on were 

only guidelines and their application to a particular jobsite depends on numerous factors, 

including field conditions. 
5

vehicles that collide at angles of 20 degrees or less. The president of Pavlich 

Construction, Tommy Pavlich, testified, if Tamas “hadn‟t hit the motor grader, he would 

have probably hit a loader if the motor grader wasn‟t parked there. Or if nothing was 

parked there, he would have wound up in a 15, 20 foot ditch.” 

3. The Verdict

On Friday, May 13, 2011, the jury began its deliberations. On May 18, 2011 the 

jury announced it was deadlocked and was instructed with CACI No. 5013 to continue 

deliberating. After deliberating on May 19, 2011 the jury was excused for a few days so 

a juror could attend his son‟s graduation. On May 25, 2011, the day after deliberations 

had resumed, the jury asked for clarification of special verdict question number 1—was 

Pavlich Construction negligent? Within minutes of being advised to refer to the jury 

instruction concerning negligence, the jury reached a 9-3 verdict in favor of Pavlich 

Construction. 

4. The Trial Court’s Denial of Tamas’s Motion for New Trial

Tamas moved for a new trial on the grounds the evidence did not support the 

verdict and the jurors had engaged in misconduct by using toy cars to reenact the 

accident. An affidavit from juror Kathleen Jacinto stated, “Near the end of our 

deliberations, when we were still undecided, a juror brought in toy cars and we attempted 

to reconstruct what happened by moving the cars in different directions and trying to 

reconstruct where [Tamas‟s] car would have gone if the motor grader had not been 

parked where it was at the time of the collision. After we did our testing inside the 

deliberation room, we took another vote and for the first time, the vote was 9 to 3 for the 

defense.” Affidavits from two other jurors were substantially similar. The court denied 

the motion without comment on the juror misconduct issue after hearing argument during 

which the attorneys also did not raise the issue. 
6

DISCUSSION

1. Law Governing New Trial Motions Based on Juror Misconduct; Standard of 

Review

“The authority of a trial court in this state to grant a new trial is established and 

circumscribed by statute.” (Oakland Raiders v. National Football League (2007) 

41 Cal.4th 624, 633.) Code of Civil Procedure section 657 identifies seven grounds for a 

new trial motion, including jury misconduct. When a party seeks a new trial based on 

jury misconduct, the court undertakes a three-step inquiry. First, the court must 

determine whether the declarations offered in support of the motion are admissible under 

Evidence Code section 1150.

5

 If they are, the court must next consider whether the facts 

establish misconduct. Finally, assuming misconduct is found, the court must determine 

whether it was prejudicial. (People v. Duran (1996) 50 Cal.App.4th 103, 112-113; 

People v. Hord (1993) 15 Cal.App.4th 711, 724.) “Juror misconduct raises a rebuttable 

presumption of prejudice . . . .” (People v. Dykes (2009) 46 Cal.4th 731, 809.) The 

presumption of prejudice “may be rebutted by an affirmative evidentiary showing that 

prejudice does not exist or by a reviewing court‟s examination of the entire record to 

determine whether there is a reasonable probability of actual harm to the complaining 

party resulting from the misconduct.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 

388, 417.)

Whether juror misconduct has occurred is “a legal question we review 

independently.” (People v. Collins (2010) 49 Cal.4th 175, 242 (Collins)). However, we 

 

5 Under Evidence Code section 1150, subdivision (a), only evidence of “„objective 

facts‟” is admissible to prove juror misconduct. (In re Stankewitz (1985) 40 Cal.3d 391, 

397.) Evidence regarding how such objective facts may have influenced jurors‟ 

subjective thought processes is inadmissible to impeach a verdict. (Ibid.) “Thus, jurors 

may testify to „overt acts‟—that is, such statements, conduct, conditions, or events as are 

„open to sight, hearing, and the other senses and thus subject to corroboration‟—but may 

not testify to „the subjective reasoning processes of the individual juror . . . .‟” (Id. at 

p. 398.) “This limitation prevents one juror from upsetting a verdict of the whole jury by 

impugning his own or his fellow jurors‟ mental processes or reasons for assent or 

dissent.” (People v. Steele (2002) 27 Cal.4th 1230, 1261.)
7

“„accept the trial court‟s credibility determinations and findings on questions of historical 

fact if supported by substantial evidence.‟” (Ibid.) Similarly, whether misconduct is 

prejudicial is reviewed independently as a mixed question of law and fact when the trial 

court denies a motion for new trial. (People v. Ault (2004) 33 Cal.4th 1250, 1260-1263.)

2. The Jury Did Not Commit Misconduct by Using Toy Cars To Reenact the 

Accident

For more than a century courts have addressed the kinds of experiments jurors 

may conduct during deliberations: “From the venerable authority of Higgins [v. L.A. Gas 

& Electric Co. (1911) 159 Cal. 651] and its progeny, several principles emerge. Not 

every jury experiment constitutes misconduct. Improper experiments are those that allow 

the jury to discover new evidence by delving into areas not examined during trial. The 

distinction between proper and improper jury conduct turns on this difference. The jury 

may weigh and evaluate the evidence it has received. It is entitled to scrutinize that 

evidence, subjecting it to careful consideration by testing all reasonable inferences. It 

may reexamine the evidence in a slightly different context as long as that evaluation is

within the “„scope and purview of the evidence.‟” [Citation.] What the jury cannot do is 

conduct a new investigation going beyond the evidence admitted.” (Collins, supra, 

49 Cal.4th at p. 249 [holding juror‟s use of home computer to make a diagram of relative 

positions of defendant and victim at time of shooting and demonstration during 

deliberations how victim may have sustained wound with downward trajectory not 

misconduct].)

Tamas concedes jurors were permitted to enact physical demonstrations in Collins, 

supra, 49 Cal.4th 175 and People v. Cooper (1979) 95 Cal.App.3d 844, 853-854 

(reenacting demonstration by arresting officer showing how defendant tossed bag of 

heroin). Relying in large part on Bell v. State of California (1998) 63 Cal.App.4th 919 

(Bell), a decision by our colleagues in Division Four of this court, Tamas attempts to 

distinguish these cases on the ground the demonstrations involved relatively simple 

variables that could be re-created and were supported by the physical evidence—the 

distance between the shooter and the victim; their height and body position—whereas 
8

reconstruction of an automobile accident involves the interplay of physical forces that 

cannot be simulated in the jury room such as the mass, velocity and curving trajectories 

of the vehicles. Bell, however, cannot be reduced to such a simple proposition broadly 

eliminating a jury‟s ability to reconstruct an automobile accident using demonstrative 

aids.

In Bell plaintiff James Bell sustained a shoulder injury when his wrists were held 

behind his back up to his neck, forcing him to bend over at 90 degrees and stand on his 

toes, during a wrongful arrest. (Bell v. State of California, supra, 63 Cal.App.4th at 

p. 925.) During deliberations a juror reported that she and another person (not a juror) 

“„had attempted to recreate the sequence of events when [Bell‟s] arms were placed up 

behind his back. She claimed that she fell over when she tried to do it. Based on this out 

of court [reenactment] of events she expressed her disbelief in [Bell‟s] testimony on this 

point and therefore as to his entire testimony.‟” (Id. at p. 930.) The trial court, in a 

decision affirmed on appeal, granted Bell‟s motion for new trial, finding it was 

misconduct on several grounds: “„first, the juror was obviously discussing the case 

outside the court with other persons in violation of the direct order of the court; second, 

the juror attempted to simulate events at the scene; and, third, the fact of the experiment 

and its results were passed onto other jurors.‟” (Id. at pp. 932-933.) With respect to the 

reenactment itself the trial court in part found, “„The incident the juror was attempting to 

replicate is not subject to experimentation because of the inability to accurately duplicate 

critical factors such as the size, strength and height of the individuals, the amount of force 

involved, and the specific or unusual physical characteristic of each individual involved.” 

(Id. at p. 932.) 

Unlike Bell in which the juror was attempting to realistically duplicate—outside 

the presence of the other jurors with a person of unknown height and weight—the actual, 

physical encounter between Bell and police officers to determine if it could have 

happened the way Bell had testified, here the jurors were not trying to realistically 

reenact the collision. Rather, as described in juror declarations, they were using the toy 
9

cars to “reconstruct what happened by moving the cars in different directions.”6 Given 

the exceedingly general nature of the juror declarations, it is a reasonable conclusion the 

jurors were simply creating a visualization of the trial testimony to assist them in 

determining, among other disputed issues, whether Tamas was driving in the lane closest 

to the work area, as he had contended, or whether, as Firestone opined, Tamas had been 

driving in the middle lane when he was sideswiped, skidded diagonally and then made an 

unwarranted sharp turn to his left, putting him on a collision course with the motor grader 

that he would not have had absent his own negligence. This sort of reenactment did not 

require the reliable simulation of difficult physics concepts as Tamas suggests.

Tamas further contends the experiment crossed the line between a permissible 

visualization of the evidence and an impermissible “new investigation going beyond the 

evidence admitted” (Collins, supra, 49 Cal.4th at p. 249) when jurors attempted to 

determine what would have happened if the motor grader had not been parked where it 

was because there was insufficient evidence admitted on this “counter-factual scenario.” 

Tamas argues Firestone‟s testimony was strictly limited to describing how the accident 

occurred and he never described what might have happened if the motor grader had been 

parked in a different location. Tamas further argues Tommy Pavlich‟s spontaneous 

utterance during cross-examination that Tamas would have hit another piece of 

equipment or ended up in a ditch if the motor grader were in a different location was 

simply a hypothesis unsupported by any data.

Tamas‟s argument is without merit. What would have happened if the motor 

grader was parked in a different location is essentially the same question as whether the 

motor grader‟s location caused Tamas‟s harm, an essential element of Tamas‟s case in 

chief. Indeed, during closing argument Tamas‟s counsel argued, “What caused the harm 

is parking a motor grader there that caused the harm, and that‟s what you have to decide 

as to the cause of the harm.” Although Corona testified he did not recall what was parked 

 

6 Juror Lewis similarly declared, “a female juror brought in some toy vehicles and 

the jurors reconstructed how the accident happened.” 
10

next to the motor grader at the time of the accident, Corona had testified all the 

construction equipment was parked next to each other, side by side; and pictures of the 

construction site were admitted into evidence. In conjunction with Firestone‟s testimony 

as to the angle Tamas‟s car skidded after being sideswiped, the sharp veer to the left 

based on the skid mark and the estimated speed of travel, examining the evidence in the 

“slightly different context” of the absence of the motor grader was “within the „“scope 

and purview of the evidence.‟”” (Collins, supra, 49 Cal.4th at p. 249.) In sum, based on 

the spare juror declarations as to the use of the toy cars, Tamas has failed to carry his 

burden of establishing juror misconduct. (See Donovan v. Poway Unified School Dist.

(2008) 167 Cal.App.4th 567, 625.)

DISPOSITION

The judgment is affirmed. Pavlich Construction is to recover its costs on appeal.

PERLUSS, P. J.

We concur:

ZELON, J.

JACKSON, J.