Filed 9/17/21 Villa v. City of Long Beach CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

FERMIN VILLA

,

Plaintiff and Appellant

,

v.

CITY OF LONG BEACH

,

Defendant and Respondent

. B 300054

(Los Angeles County Super. Ct. No. B C518613 )

APPEAL from a judgment of the Superior Court of
Los Angeles County, Patrick T. Madden , Judge

. Affirmed

. Balaban & Spielberger

, Daniel K. Balaban, and Andrew J. Spielberger; Esner Chang & Boyer, Holly N. Boyer, and Shea S. Murphy for Plaintiff and Appellant.
Charles Parkin , City Attorney, and Theodore B. Zinger

, Deputy City A ttorney; Alderman & Hilgers and Allison R. H ilgers
for Defendant and Respondent

.2 INTRODUCTION

Fermin Villa sustained significant injuries when the driver
of a car he was a passenger in lost control of the car and hit a
200

- pound decorative boulder , which caused the car to roll over

. After filing this action against the City of Long Beach for allegedly creating and maintaining a dangerous condition by placing the boulder in the median of the road, Villa went to trial
twice and lost both times

. In the first trial, a jury returned a verdict for the City, f

inding there was no dangerous condition.
After the trial court failed to disclose it had received a note from a juror during deliberations about potential jury misconduct

, however, the court grant e d Villa’s motion for a new trial. The City appealed, and we affirmed. (See Villa v. City of Long Beach (Sept. 28, 2017 , B268270 ) [nonpub. opn.] ( V illa I )

. )
In the second trial, a jury again found there was no dangerous condition. Villa again moved for a new trial

— the subject of this appeal

— arguing that the jury engaged in
misconduct during deliberations and that counsel for the City
committed mis conduct during closing argument

. T his time t he
trial court denied the motion for a new trial

. Villa ap pealed again , arguing that, “in what appears to be an uncanny twist of fate,” juror and attorney misconduct require a second reversal

. We conclude that the trial court did not err in denying
Villa’s second motion for a new trial and that Villa is not entitled to a third trial. Therefore, we affirm.3 FACTUAL AND PROCEDURAL BACKGROUND

A. Villa Sues the City After He Is Injured in a Car
Accident
On August 2 0
, 201 2 Carlos Arrieta was driving a car in Long Beach

. Villa was the passenger

. As Arrieta drove on a ramp connecting two streets, the car rolled o ver and landed on its
roof

. Villa suffered injuries, including to his head and spine

, which required hospitalization

, surgery , and rehabilitative care

. Villa subsequently sued the City for negligence and dangerous condition of public property

, alleging the accident occurred when
the car hit a boulder the City placed and maintained on the

ramp

.

B. The Jury Finds in Favor of the City, but the Trial Court Grants Villa’s Motion for a New Trial
The first trial commenced in June 2015. The City presented evidence Arrieta had been drinking and driving recklessly shortly before the accident , which occurred when
Arrieta was speeding and lost control of the car. C ompeting
traffic engineering expert s for Villa and the City testified about whether the ramp was in a dangerous condition. ( Villa I, supra

, B268270.) On the second day of jury deliberations

, a juror submitted a
handwritten note to the clerk stating one of the other jurors w as “ta l king about what they know as engineer” and asking the court

to instruct the jurors again to decide the case based on the evidence, not on t heir life experiences. The jury, however,
reached , and the trial court accepted, a verdict before the court
disclosed the note to counsel . The jury found i n favor of the City,4

voting nine to three the ramp was not a dangerous condition. ( Villa I

, supra , B 268270 .)
Villa filed a mot ion for a new trial under Code of Civil
Procedure section 657

, 1 arguing that the court’s failure to disclose the juror note was an irregularity in the proceeding and that
there was juror misconduct. F our jurors submitted declarations stating that during deliberations the presiding juror repeatedly commented about his experience as an engineer and said that, based on his engineering experience, there was no problem with the design of the ramp. The trial court granted Villa’s motion for a new trial, ruling that the court’s failure to disclose the note to counsel prior to taking the verdict was an “[i]rregularity in the proceedings of the court by which [Villa] was prevented from having a fair trial” for purpo ses of section 657, subdivision (1).
We affirmed the order granting a new trial

. ( Villa I

, supra , B268270 .)

C. A S e cond Jury Finds in Favor of the City

1. Percipient Witness es Testify About the Accident
At the second trial, Villa’s friend, Adrian Rayon, described
the events leading to the accident. Rayon said that Arrieta started drinking at 1:00 p.m. and th at he appeared intoxicated by the evening. At 8:30 or 9:30 p.m., Villa, Arrieta, Rayon

, and Gregorio Aguilera went to the beach ; Aguilera drove Rayon in one car, and Ar rieta drove Villa in another, a Mazda R X 7. A t a gas station

, Arrieta started drinking from a bottle of dark liquor. Back on the road, Arrieta stopped at a red light and began doing

1 Undesignated statutory references are to the Code of Civil Procedure.5

“ donuts

, ” 2 at one point spinning off and hitting the curb. Aguilera pul led his car up next to Arrieta ’s car, and Rayon

, believing Arrieta was “obviously ” drunk, told Arrieta to “ stop doing that ” and “ calm down

. ”
Arrieta sped away

, with Aguilera following him. Five to 10
minutes later , as Arrieta approached the ramp , Rayon used his phone to record Arrieta’s driving , thinking Arrieta might take the

ramp quickly . As Rayon was filming , Arrieta “sped off into the
curb and .

. . flipped [the car] over” toward the passenger side.
A bus driver also witnessed the accident. He heard tires “peeling out” and what sounded like brakes “burning out

. ” The bus driver said he thought Arrieta’s car was going “too fast to be coming up that ramp” and that, based on the direction of the car’s headlights, the car was “drifting or fisht ailing” and “sliding .

. . around the curve

. ” The bus driver saw Arrieta’s car hit the curb,
hit the boulder, and then roll over twice.

2. Villa ’s Expert s Test ify the Ramp Was Dangerous Edward Stevens, Villa’s traffic engineering expert, testified that there were no problems with the City’s design of the ramp because the plans were almost “ straight out of the California Highway Design M anual for an onramp.” A fter conducting a

survey , how ever, Stevens determined the ramp was not
constructed as designed . In particular, he said that, while the plans called for a 400

- foot curve radius toward the end of the

ramp , the radius as constructed was closer to 1 18 feet. As

2 “Doing donuts” is a driving maneuver involving “ driving quickly in a tight circle” ( Guest v. Hansen (2d Cir. 2010) 603 F.3d 15, 18 ), often in the middle of an intersection.6

Stevens explained , “the cu rvature continues to be very sharp” at the point where a driver would “begin to accelerate,” causing the
driver to “drift over to the left side” ( and toward the curb where
the boulders were). Stevens also testified that, in his opinion, there should
have been a “chevron sign”

— a sign , usually in yellow and black, with an arrow pointed to the right

— on the ramp, to alert drivers
there was a sharp curve. Finally, Stevens testified that the California Highway Design M anual require d any fixed objects,
such as the boulder s on the ramp , to be at least 18 inches from
the face of the curb and that the boulder s served no traffic engineering purpose.
Vil la’s accident reconstruction expert, Thomas Green, acknowledged the car was going approximately 40 m iles per hour
when it hit the curb , which was w ell over the posted recommended speed of 15 miles per hour

. But according to Green the critical speed at whi ch the car would lose control and slide was 45 miles per hour, and Arrieta’s car never reached that speed. Green stated that the boulder was between six to 18 inches away from the curb when the car hit it and that it “definitely” caused the car to roll

.

3. T he City ’s Expert s Testif y It Was Not The City’s traffic engineering expert, John Fisher, disagreed with almost everything Stevens said. Fisher concluded that the ramp conformed to the design plans and that the ramp was not in a dangerous condition

. He testified Stevens’ s methodology for measuring the curve radius was faulty because7

Stevens did not measure enough points on the ramp to accurately
calculate the radi i of the various compound curves in the ramp

. 3
Fisher testified the boulder s were not unsafe because they were not so large that they were unmovable

— as demonstrated by the fact that Arrieta’s car in fact dislodged the boulder into the

street

— and because , in Fisher’s opinion, they were at least 30 inches away from the face of the curb. Fisher also testified that
there had been no reported accidents during the previous five

years involving a car crashing into the boulders or the area
around them

. Finally, Fisher testified a c hevron sign was not necessary on the ramp because there were other traffic control devices, including signs warning drivers of the ramp and curve and recommending a speed of 15 miles per hour; yield signs halfway up the ramp and at the end of the ramp; and a “high visibility ladder style crosswalk” at the end of the ramp.
The City’s accident reconstruction expert, Stein Husher,
calculated that the critical speed on the ramp at which a car would tend to slide was 36 miles per hour , not 45 miles per hour

, as Green had testified

. Husher did not have an o pinion on how
the car roll ed over because he said th ere was not enough
information about how the car hit the curb . But Husher did state
that , in his opinion, the car “either rolled or tripped on the road
surface or the curb .

. . before it impacted” the boulder.

4. The Jury Again Finds for the City The first question o n the special verdict form asked the jury whether “the property [was] in a dangerous condition at the

3 According to Stevens, “compound curves are where two curves meet that have different .

. . radii .

. . designed so that one arc of a certain radius meets another arc of another radius.”8

time of the accident.” The court instructed the jury a dangerous condition of public property is one that “creates a substantial risk of injury to members of the general public when the property is

u s ed with reasonable care and in a reasonably foreseeable

manner. ” During closing argument, counsel for the City showed the jury a slide that defined “substantial” as “of ampl e or considerable amount or quant ity ” ( based on a dictionary
definition )

, and counsel argued substantial mean t “ frequently going to happen.” Villa did not object. On the second day of deliberations, the jury asked the court to provide the “legal definition of substantial risk” for the
instr uction on dangerous condition. In response to the jury’s question, Villa asked the court to instruct the jury to disregard any definition of “substantial risk” other than the definition provided by the court and to give the jury the definition of “dangero us condition” in Governmen t Code section 830 . (See
Gov . Code, § 830 , subd. (a) [“‘ Dangerous condition ’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. ”].) The

c ourt agreed with Villa

, instructed the jury that “statements of law by counsel are not evidence,” and gave the definition of “dangerous condition” in Government Code section 830. On the fourth day of deliberations, the jurors advised th e
court they were deadlocked on whether there was a dangerous
condition. The trial court ordered the jury to resume deliberating. The next day , by a nine to three vote, the jury returned a verdict in favor of the City, finding there was no9

dangerous cond ition. The trial court entered judgment in favor of the City.

D

. Villa Again Files a Motion for a New Trial , Which
This Time the Trial Court Denies Villa again filed a motion for a new trial under section 657,
subdivision (1), arguing both jury misconduct and attorney
misconduct. Villa submitted the declaration s of two jurors, Hector Velazquez and Leola Oliver. According to Jurors Velazquez and Oliver, during deliberations two members of the jury , Patrick Roselli and Kerry Oda, referred to them selves as experts. Juror Roselli, a mechanical engineer, said (according to
Jurors Velazquez and Oliver) that based on his expertise and mechanical engineering experience the accident could not have happen ed the way Villa’s experts described. Juror Oda

, who ( according to Jurors Velazquez and Oliver) referred to himself as

an “‘ expert in high performance vehicles like the RX7, ’ ” stated that “ ‘ the RX7 would fishtail because it was rear wheel drive ’ ” and that Villa’s experts were wrong. Jurors Velazquez and
Oliver also stated in their declarations that two jurors, Marci Dusseau and Stacey Smith, made several improper comments, including that the City could not afford to pay an award of damages and taxes would increase if the jury awarded Villa money damages ; that Villa was suing the City because the driver (Arrieta) had no insurance ; and that the City should not have to

pay the fees of Villa ’s attorneys, who would take 50 percent of any damages award

. The City opposed the motion, submitting declarations fro m four jurors: Roselli, Dusseau, Mira Patel, and Katrina Anne
Schutte. Juror Roselli admitted tell ing the other jurors he was a10

mechanical engineer , but denied he ever referr ed to himself as an expert or expressed any opinion based on his expertise or
mechan ical engineering experience. And none of the four jurors recalled either Juror Roselli or Juror Oda stating that, based on his personal experience or expertise, he did not believe the plaintiff’s experts, or offering any other opinion b ased on his personal experience. Juror Dusseau denied ever mentioning taxes, insurance, or attorneys’ fees, or making a similar comment. And none of the four jurors remembered Juror Dusseau, Juror Smith, or any other juror making simi lar comments.
The trial court denied the motion. Regarding the jury
misconduct argument , t he court ruled that the declarations “do not establish prejudicial misconduct by the jurors.” Regarding the attorney misconduct argument, t he court ruled counsel for the City ’s use of a dictionary definition for the term “substantial” was misconduct. The court ruled, however, that Villa did not timely object to the misconduct during closing argument and that the misconduct was not prejudicial because the court gave a curative instruction during deliberations and none of the six jurors stated the dictionary definition eve r came up during deliberations. Villa timely appealed from the judgment

.11 DISCUSSION

A. The Trial Court Did Not Err in Denying Villa’s
Motion for a New Trial Based on Jury Misconduct

1. Applicable Law and Standard of Review

“ A trial court undertakes a three

- step process to evaluate a motion for new trial based on juror misconduct ” under section
657. ( Hernandez v. First Student, Inc. (2019) 37 Ca l.App.5th 270, 278.) “ The trial court must first determine whether the declarations supporting the motion are admissible under
Evidence Code section 1150. [ 4 ] Second, if all or part of the declarations are admissible, the trial court determines whether

t he facts establish misconduct. I f the trial court finds misconduct
occurred the trial court then determines whether the misconduct was prejudicial. ” ( H

ernandez, at p. 278 ; see Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345 ( Barboni ).) Villa, as the moving party, “bears the burden of establishing juror misconduct.” ( Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625 ; see Barboni , at p. 349 [“ the burden of establishing juror misconduct lies with the party moving for a new trial ”].)
“On review from a trial court ’ s ‘determin[ation of] whether misconduct occurred, “ [w]e accept the trial court ’ s credibility determinations and findings on questions of historical fact if supported by substantial evidence. ”’” ( Barboni

, supra ,

4 The trial court excluded portions of declarations that reflected either how the de liberations influenced jurors to agree to the verdict or the jurors’ mental processes. (See Evid. Code, § 1150, subd. (a).) Villa does not challenge the court’s evidentiary rulings

.12

210 Cal.App.4 th at p. 345; accord, Hernandez v. First Student,
Inc

, supra , 37 Cal.App.5th at p. 278 ; Stokes v. Muschinske (2019)
34 Cal.App.5th 45, 53 .) Where, as here, “the motion for new trial [is] a battle of the declarations,” it is “‘ the trial court that must assess the credibility of affiants or declarants, and the trial court is entitled to believe one over the other.’” ( Toste v. CalPortland
Const ruction (2016) 245 Cal.App.4th 362, 372

- 373.) “[ T]he appellate court defers to the trial court’s factual findings and independently assesses prejudice.” ( Id. at p. 373.)
The trial court ’s ruling the declarations did “not establish prejudicial misconduct” is ambiguous : It could mean the trial court found no misconduct, no prejudice, or neither misconduct nor prejudice. Relying on this ambiguity, Villa argues that, because the trial court did not expressly find th ere was no misconduct, we must conduct “an independent review of whether
misconduct occurred.” That is not the law

. W here, as here, the trial court denies a motion for a new
trial su pported by declarations , we view the declarations “in the light most fa vorable to the [prevailing party]” ( Gordon v. Gordon (1954) 126 Cal.App.2d 481, 486 ) and “assume

. . . the trial court impliedly resolved [any evidentiary] conflicts in favor of the prevailing party” (

Andrews v. County of Orange (1982)
130 Cal.App.3d 944, 957
, disapproved on an other ground in People v. Nesler (1997) 16 Cal.4th 561 582, fn. 5] ; see Young v.
Brunicardi (1986) 187 Cal.App.3d 1344, 1350

- 1351 [“[t]he determination by a trial court of a motio n for a new trial submitted on affidavits which present conflicting facts is a
determination of those controverted facts in favor of the prevailing party”] ). W here the trial court’s order “ ‘ i s against the party who has the burden of proof,

. . . unless th e trial court13

makes specific findings of fact in favor of the losing plaintiff, we presume the trial court found the plaintiff’s evidence lacks sufficient weight and credibility to carry the burden of proof. [Citations.] W e have no power on appeal to jud ge the credibility of witnesses or to reweigh the evidence. ’ ” ( Patricia A. Murray Dental Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th
258 , 270; accord, Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486

. ) V iewing the
declaration s and resolving conflicts in the light most favorable to the City, we conclude Villa did not prove any of the jurors engaged in misco nduct

.

2. Villa Did Not Show Juror Misconduct

a

. Juror Roselli
In his declaration Juror Roselli stated he told the other jurors that he was an engineer

, that he did not believe the ramp was in a dangerous condition

, and that he did not find Villa’s
expert s’ version of the accident plausibl e

. As discussed, however,
Juror Roselli stated that he never said he was an expert or that he was giving an expert opinion. To the contrary, Juror Roselli
said he told the other jurors, “I am definitely no t a Civil Eng ineer
or an accident reconstructionist and that is not my field.”
None of Juror Roselli’s statements evidenced misconduct

. As the Supreme Court has held : “All the jurors, including those with relevant personal backgrounds, [are] entitled to consider [ th e] evidence and express opinions regarding it

. . . . [I] f we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use their experience in evaluating and interpreting that evidence. Moreover, duri ng the14

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, ne ver refer to their background during deliberations.” ( People v. Steele (2002)
27 Cal.4th 1230, 1266 ; accord, People v. Loker (2008) 44 Cal.4 th
691 , 753 ; see In re Malone (1996) 12 Cal.4th 935 , 963 [“ It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial .”].)
While a ‘“

juror may not express opinions based on asserted personal expertise that is different from or contrary to .

. . the
evidence ’” ( People v. Allen and Johnson (2011) 53 Cal.4th 60, 77 ),
Juror Roselli denied the assertions by Juror s Velazquez and
Oliver that he ( Juror Roselli) said he was an expert and that his opinion s were based on his engineering background. And Jurors Dusseau, Patel

, and Schutte all stated they did not recall any juror referring to himself or herself as an expert or expressing an opinion based on special knowledge. Accepting , as we must,
Juror Roselli’s and th e other jurors’ version of events, there was
no misconduct on the part of Juror Roselli

. Juror Roselli admit ted in his declaration he told the other jurors he “did not believe a car going a reasonable speed, 20 to 25 miles per hour, would have had a subst antial risk of rollin g over.” In his reply brief, Villa asserts this statement must have been “expert opinion” because there was no evidence at trial to support it

. Except that there was

. Both Green, Villa’s accident
reconstruction expert, and Husher, the City’s accident
reconstruction expert, agreed that the critical speed

— the speed15

at which “the centrifugal forces on the car can no longer be contained by the tire forces if the tire is in contact with the roadway”

— was at least 36 miles per hour (i.e., more than 20 to 25 miles per hour)

. Stevens, Villa’s traffic engineering expert, agreed the re were no safety problems with the ramp’s design

, and Fisher, the City’s traffic engineering expert, testified the ramp as constructed conformed with the design. Fisher testified that the
boulders in the median

— the objects that Villa claimed caused the

c ar to flip

— were at least 30 inches from the curb , which was a greater distance than required by the California Highway D esign
M anual

. T here had been no similar accidents on the ramp during the past five years . And Fisher opined t hat

, considering all of i ts characteristics, the ramp was “ not a dangerous conditio n ” and
that there was “no substantial risk of harm if you’re driving prudently and safely and adhering to the .

. . traffic control
devices .” All of this evidence supported an inference that a car

g oing 20 to 25 miles per hour on the ramp would not have a substantial risk of rolling over. (See I

- CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 291 [“The jury is entitled ‘to make any logical and reasonable deduction’ from the evidence before it.”]; Kawamura v. Honek (1932) 127 Cal.App. 509, 511 [“ ‘i n construing and applying testimony, reasonable
inferences and deductions may be m ade by the jury , and conclusions may be reached that lie quite beyond the mere letter
of the evidence’ ” ].)

b. Juror Dusseau
As did Juror Roselli, Juror Dusseau denied she made the allegedly improper statements attributed to her by Juror s Velazquez and Oli ver

. Juror Dusseau stated she n ever said that16

the City w ould not be able to pay a judgment

, that a verdict for
Villa would cause taxes to i ncrease , or that Villa’s lawyer would
take 50 percent of any damages award. She also stated that she did not make “any comments similar to thos e ” and that she did
not understand how any of her comments “could have been
misconstrued.” Jurors Roselli, Patel, and Schutte all agreed they
did not recall any juror making any similar comment s. A gain,

a cce pting Juror Dusseau’s version of events, confirmed by Jurors Roselli, Patel

, and Schutte, there was no misconduct here

.

c

. Juror Oda
Juror Oda did not submit a declaration in opposition to the
motion for a new trial denying the statements attributed to him by Juror s Velazquez and Oliver

. Villa asserts that Juror Oda’s
misconduct was therefore “unrefuted.” Not true

. According to Jurors Velazquez and Oliver, Juror Oda referred to himself as an expert in high performance vehicles and
said the accident could not have occurred as Villa’s expert
described because the Mazda RX 7 was “ ‘ low to the ground, ’ ”

“ ‘ powerful

, ’ ” and had “ ‘ rear wheel drive. ’ ” While Juror Oda did

not rebut the statements by Jurors Velazquez an d Oliver

, Juror s Roselli, Dusseau, Patel

, and Schutte all stated they did not recal l
Juror Oda referring to himself as an expert. Nor did any of the se four jurors recall Juror Oda expressing opinions that were not
based on the evidence admitted at trial. Juror Roselli
remembered Juror Oda “worked on high performance vehicles,”
but he did not recall Juror Oda saying that, based on his experience working with high performance cars, Villa’s experts

were wrong. Juror Patel remembered Juror Oda worked with cars, but did not remember Juror Oda stating that, based on his17

experience, Villa’s experts were wrong, n or did Juror Patel
remember Juror Oda e xpressing an opinion “based on
information [the jurors] had not heard at trial .” Juror Schutte
confirmed t hat none of the jurors, including Juror Oda, expressed

an opinion “other than to discuss [the juror’s] own interpretation of the testimony and evidence. ” And Juror Dusseau did not
remember Juror Oda saying anything about cars, other than it
would have bee n helpful to know more about the car involved in
the accident

. In his reply brief

, Villa appears to argue th e statements by
Jurors Roselli, Dussea u , Patel

, and Schutte

, that they did not “recall” Juror Oda’s alleged misconduct

, did not refute the

stateme nts by Juror s Velazquez and Oliver that the misconduct
occurred. Again, Villa is incorrect. In Barboni

, supra , 210 Cal.App.4th 340 the plaintiff made essentially the same argument after the trial court denied her motion for a new trial based on juror misconduct, arguing the failure of five jurors to
recall an allegedly improper discussion during deliberations did

“ not mean such discus sion did not happen .” ( Id. at p. 350.) As
the court in Barboni explained, this type of argument “ misses several important points, including the standard of review on appeal and the fact that it was [the moving party’s] burden to establish misconduct, not the [ opposing part y’ s ] burden to
establish that it did not occu r.” ( Ibid. ) Here

, too, it was Villa’s
burden to establish that Juror Oda made the allegedly improper
statements. That only two of the 12 jurors corroborated the statements, and four jurors did not recall them, shows it was not

“ unrefuted ” that Juror Oda said something improper. Viewing the evidence in the light most favorable to the court’s order, we

must assume he did not

.18 There was one statement by Juror Oda that the City arguably did not rebut. According to Juror Velazquez, Juror Oda
told Juror Velazquez while they were having lunch that he ( Juror Oda) “did everything to get out of there,” including telling the judge that he could not be fair and that he worked “on high performance st uff” and “would not be a good juror.” According to Villa, this show ed that Juror Oda concealed bias during voir dire
examination

. But even assuming Juror Oda made these comments, they
were not sufficient to show bias that would have precluded him
from ser ving on the jury

. “ ‘ [ T ]he concealment during voir dire of a bias, belief or state of mind which prevents a juror from following the court ’ s instructions and acting in an impartial
manner constitutes misconduct. ’ ” ( Stokes v. Muschinske

, supra , 34 Cal.App.5th at p. 52; see Tapia v. Barker ( 1984 )
160 Cal.App.3d 761 , 765.) “ ‘“[W] hether a juror is biased in this regard [is] within the discretion of the trial court. ” ’ ” ( Stokes , at

p. 53; see People v. San Nicolas (2004) 34 Cal.4th 614, 644 .)
Juror Od a’s statements suggested he did not want to serve on the jury, which standing alone does not show impermissible
bias. (See Stokes v. Muschinske

, supra , 34 Cal.App.5th at p. 54 [juror’s statement that he had a “big problem” with the time required to serve on the jury and the judge’s observation that the juror was “about ready to jump through the front of the jury box”
did not show bias].) Nor did the fact that Juror Oda kn ew about

cars. ( See People v. Steele

, supra , 27 Cal.4th at p. 1266 [jurors with “relevant personal backgrounds” are entitled to consider evidence and express opinions ] .) And regardless of Juror Oda’s

statements he was not “ fair ” and not a “ good juror, ” he did not

say he had prejudged the case

, would refuse to consider the19

evidence, harbored any animus toward Villa , or was not able to
be impartial and follow the judge’s instructions

.

d

. Juror Smith
Like Juror Oda, Juror Smith did not submit a declaration
to rebut the statements attributed to her by Jurors Velazquez and Oliver. But again, the declaration s of Jurors Roselli, Dusseau, Patel

, and Schutte rebutted the evidence of purported
misconduct. E ach of these four juro rs did not recall anyone making comments about Arrieta not having insurance, taxes increasing if the City had to pay a judgment, or Villa’s attorneys’
fees

. 5

B

. The Trial Court Did Not Err in Denying Villa’s

Motion for a New Trial Based on Attorney Misconduct The trial court ruled counsel for the City committed misconduct by using a dictionary definition of “substantial” when describing a dangerous condition of property as one that creates a substantial risk of injury. The court ruled , however, the misconduct did not cause any prejudice

.

“ ‘ Attorney misconduct is an irregularity in the proceedings and a ground for a new trial ’ ” under section 657, subdivision (1). ( Jackson v. Park (2021) 66 Cal.App.5th 1196, 1213 ; see Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148.) But a s with juror misconduct, “ ‘[i ]t is not enough for a party to show attorney misconduct

. In order to justify a new trial, the party must

5 Because Villa did not show there was misconduct, we need not independently review the record to determine whether the alleged misconduct, assuming it occurred, caused prejudice. (See Barboni

, supra , 210 Cal.App.4 th at p. 351.)20

demonstrate that the misconduct was prejudicial. ’ ” ( Jackson , at

p. 1216 ; see Martinez v. Department of Transportation (2015)
238 Cal.App.4th 559, 568 ; Garcia

, at p. 149 .)

“ In determining whether [ attorney ] misconduct was prejudicial, ‘ a reviewing court makes “ an independent determination as to whether the error was prejudicial. ” ’” ( Jackson v. Park

, supra , 66 Cal.App.5th at p. 1216 ; see Pilliod v. Monsanto Co. (2021 ) 67 Cal.App.5th 591, 631 ; Garcia v. ConMed Corp.

, supra , 204 Cal.App.4th at p. 149 .) “ The court ‘ must determine whether it is reasonably probable [that the [party asserting misconduct occurred]] would have achieved a more favorable result in the absence of that portion of [attorney conduct] now challenged. ’ ” ( Jackson , at p. 1216 ; see Garcia , at

p. 149 .) In making this determination , “we evaluate the following
fact ors: ‘ (1) the nature and seriousness of the mis conduct; (2) the general atmosphere, including the judge ’ s control of the trial; (3) the likelihood of actual prejudice on the jury; and (4) the efficacy of objections or admonitions under all the
circumstance s. ’ ” ( Bigler

- Engler v. Breg, Inc . (2017) 7 Cal.App.5th 276, 296; see Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311

, 320

- 321.) Here, even if counsel for the City committed misconduct by using an improper definition of “substantial

, ” none of the factors support s a finding of prejudice. 6 The alleged misconduct was , at

6 We assume without deciding Villa did not forfeit his argument counsel for the City committed misconduct by failing initially to object during closing argument. (See Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1411

- 1412 [“A party ordinarily cannot complai n on appeal of attorney misconduct at trial unless the party timely objected to th e misconduct and requested that the jury be admonished.”].)21

best, minor . Counsel for the City described a substantial risk as one that is “frequently going to happen” or one of “ampl e or considerable amount or quant ity

. ” This did not signi ficantly modify or add much to the definition in Government Code section 830, which defines substantial risk only as one “distinguished from a minor, trivial, or insignificant” ris k. (See Ford v. City of Los Angeles (2020) 47 Cal.App.5th 277, 289

- 290 [no attorney misconduct where

, during closing argument

, counsel used “ ‘ heck
of a lot ’ ” to define “substantial factor,” rather than defining the term as a factor that was more than remote or trivial].) And counsel for the City’s comment “ was fleeting, comprisi ng just two

sentences ” ( Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780,
802

- 803), in an otherwise lengthy closing argument. ( S ee id. at

p. 803 [ no prejudice given the “ brevity and obliqueness of the challenged comments ”].)
M oreover, there was little to no likelihood of actual prejudice in light of the trial court’s admonition to the jury during
deliberations

. “‘ “ I t is only in extreme cases that the court , when acting promptly and speaking clearly and directly on the subject, cannot, by instruc ting the jury

. . . , correct the impropriety of the act of counsel and remove any effect his conduct or remarks
would otherwise have. ” ’” ( Sabella v. Southern Pac. Co.

, supra , 70 Cal.2d at p. 318 ; accord, Janice H. v. 696 North Robertson,
LLC (2016) 1 Cal.App.5th 586, 604 ; see Rayii v. Gatica (2013)
218 Cal.App.4th 1402, 1412 [“ Attorney misconduct is incurable only in extreme cases. ”] .) When the jury asked the trial court for

a definition of substantial risk, the trial court gave the correct definition and, at counsel for Villa’s request, instructed the jury that statements of law by counsel are not evidence. That was sufficient. (See Ford v. City of Los Angeles

, supra , 47 Cal.App.5th22

at pp. 289

- 290 [“potential jury confusion” from counsel’s use of

“ ‘ heck of a lot ’ ” to define “substantial factor” was “ cured by the court’s thorough instructions to the jury”].) Villa argues the jury’s question during deliberations

, and
the declarations submitted by the jurors

, indicated that several jurors w ere confused about the definition of substantial risk.
True

, the jurors may have struggled with how to apply a legal concept to the facts in this case , but that does not show that t he City’s argument confused the jury or that it is reasona bly probabl e Villa would have obtained a more favorable verdict in the absence of counsel’s comment. Indeed, Jurors Velazquez and
Oliver confirmed that

, even after receiv ing and reading the judge’s instruction based on Government Code section 830

, the jur ors still had trouble applying “substantial risk” to the facts.
And none of the jurors who submitted declarations

, including
Jurors Velazquez and Oliver

, stated that any juror brought up counsel for the City’s brief mention of the term “substantial”
durin g closing argument. 7

7 According to Jurors Velazquez and Oliver, Juror Smith told jurors to “forget” about the judge’s instruction o n substantial risk when they were having trouble applying it to the facts. But the other four jurors who submitted declarations did not recall Juror Smith saying this

, and as discussed

, we resolve evidentiary conflicts in favor of the court’s order. In an y event, evidence of Juror Smith’s purported statements does not show counsel ’s brief
comment caused the confusion or resulted in prejudice

.23 DISPOSITION

The judgment is affirmed

. The City is to recover its costs on appeal.

SEGAL, J.

We concur:

PERLUSS

, P. J.

FEUER

, J.