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

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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.

B300054

(Los Angeles County 

Super. Ct. No. BC518613)

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 Attorney; Alderman & Hilgers and Allison R. Hilgers 

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, finding 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 granted 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.] (Villa 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 misconduct during closing argument. This time the 

trial court denied the motion for a new trial. Villa appealed 

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 20, 2012 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 over 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. Competing 

traffic engineering experts 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 was 

“talking 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 their life experiences. The jury, however, 

reached, and the trial court accepted, a verdict before the court 

disclosed the note to counsel. The jury found in favor of the City, 
4

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

(Villa I, supra, B268270.)

Villa filed a motion 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. Four 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 purposes of section 657, subdivision (1). 

We affirmed the order granting a new trial. (Villa I, supra,

B268270.) 

C. A Second Jury Finds in Favor of the City

1. Percipient Witnesses 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 that 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 Arrieta drove Villa in another, a Mazda RX7. At 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 pulled 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 fishtailing” 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 Experts Testify 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 Manual for an onramp.” After conducting a 

survey, however, 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 118 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 curvature 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 Manual required any fixed objects, 

such as the boulders on the ramp, to be at least 18 inches from 

the face of the curb and that the boulders served no traffic 

engineering purpose. 

Villa’s accident reconstruction expert, Thomas Green, 

acknowledged the car was going approximately 40 miles per hour 

when it hit the curb, which was well over the posted 

recommended speed of 15 miles per hour. But according to Green 

the critical speed at which 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. The City’s Experts Testify 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 because 
7

Stevens did not measure enough points on the ramp to accurately 

calculate the radii of the various compound curves in the ramp.

3

Fisher testified the boulders 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 chevron 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 opinion on how 

the car rolled over because he said there 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 on 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

used 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 ample or 

considerable amount or quantity” (based on a dictionary 

definition), and counsel argued substantial meant “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 

instruction 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 

“dangerous condition” in Government 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 

court 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 the 

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 no 
9

dangerous condition. 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 declarations 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 themselves 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 

happened 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 from 

four jurors: Roselli, Dusseau, Mira Patel, and Katrina Anne 

Schutte. Juror Roselli admitted telling the other jurors he was a 
10

mechanical engineer, but denied he ever referred to himself as an 

expert or expressed any opinion based on his expertise or 

mechanical 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 based 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 similar comments. 

The trial court denied the motion. Regarding the jury 

misconduct argument, the court ruled that the declarations “do 

not establish prejudicial misconduct by the jurors.” Regarding 

the attorney misconduct argument, the 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 ever 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 Cal.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 

the facts establish misconduct. If the trial court finds misconduct 

occurred the trial court then determines whether the misconduct 

was prejudicial.” (Hernandez, 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 deliberations 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.4th 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 

Construction (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 there was no 

misconduct, we must conduct “an independent review of whether 

misconduct occurred.” That is not the law. 

Where, as here, the trial court denies a motion for a new 

trial supported by declarations, we view the declarations “in the 

light most favorable 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 another 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 motion for a new trial 

submitted on affidavits which present conflicting facts is a 

determination of those controverted facts in favor of the 

prevailing party”]). Where the trial court’s order “‘is against the 

party who has the burden of proof, . . . unless the trial court 
13

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.] We have no power on appeal to judge 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.) Viewing the 

declarations and resolving conflicts in the light most favorable to 

the City, we conclude Villa did not prove any of the jurors 

engaged in misconduct. 

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 

experts’ version of the accident plausible. 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 not a Civil Engineer 

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 

[the] 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, during the 
14

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.” (People v. Steele (2002) 

27 Cal.4th 1230, 1266; accord, People v. Loker (2008) 44 Cal.4th

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 Jurors Velazquez and 

Oliver that he (Juror Roselli) said he was an expert and that his 

opinions 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 the other jurors’ version of events, there was 

no misconduct on the part of Juror Roselli.

Juror Roselli admitted 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 substantial risk of rolling 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 speed 
15

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 there 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 

car to flip—were at least 30 inches from the curb, which was a 

greater distance than required by the California Highway Design 

Manual. There had been no similar accidents on the ramp during 

the past five years. And Fisher opined that, considering all of its 

characteristics, the ramp was “not a dangerous condition” 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 

going 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 [“‘in construing and applying testimony, reasonable

inferences and deductions may be made 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 Jurors

Velazquez and Oliver. Juror Dusseau stated she never said that 
16

the City would not be able to pay a judgment, that a verdict for 

Villa would cause taxes to increase, 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 those” 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 comments. Again, 

accepting 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 Jurors 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 RX7 was “‘low to the ground,’” 

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

not rebut the statements by Jurors Velazquez and Oliver, Jurors

Roselli, Dusseau, Patel, and Schutte all stated they did not recall

Juror Oda referring to himself as an expert. Nor did any of these

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 his 
17

experience, Villa’s experts were wrong, nor did Juror Patel 

remember Juror Oda expressing an opinion “based on 

information [the jurors] had not heard at trial.” Juror Schutte 

confirmed that 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 been helpful to know more about the car involved in 

the accident. 

In his reply brief, Villa appears to argue the statements by 

Jurors Roselli, Dusseau, Patel, and Schutte, that they did not 

“recall” Juror Oda’s alleged misconduct, did not refute the 

statements by Jurors 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 discussion 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 party’s] burden to 

establish that it did not occur.” (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 stuff” and “would not be a good juror.” According to 

Villa, this showed 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 serving 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 Oda’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 knew 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 the 
19

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 declarations of Jurors Roselli, 

Dusseau, Patel, and Schutte rebutted the evidence of purported 

misconduct. Each of these four jurors 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 as 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.4th 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 

factors: ‘(1) the nature and seriousness of the misconduct; (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 

circumstances.’” (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 

supports 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 complain on appeal of attorney misconduct at trial unless 

the party timely objected to the 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 “ample or 

considerable amount or quantity.” This did not significantly 

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” risk. (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, comprising just two 

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

802-803), in an otherwise lengthy closing argument. (See id. at 

p. 803 [no prejudice given the “brevity and obliqueness of the 

challenged comments”].)

Moreover, there was little to no likelihood of actual 

prejudice in light of the trial court’s admonition to the jury during 

deliberations. “‘“It is only in extreme cases that the court, when 

acting promptly and speaking clearly and directly on the subject, 

cannot, by instructing 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.5th 
22

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 were 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 the 

City’s argument confused the jury or that it is reasonably 

probable Villa would have obtained a more favorable verdict in 

the absence of counsel’s comment. Indeed, Jurors Velazquez and 

Oliver confirmed that, even after receiving and reading the 

judge’s instruction based on Government Code section 830, the 

jurors 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”

during closing argument.7 

7 According to Jurors Velazquez and Oliver, Juror Smith told 

jurors to “forget” about the judge’s instruction on 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 any event, evidence of 

Juror Smith’s purported statements does not show counsel’s brief 

comment caused the confusion or resulted in prejudice.
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DISPOSITION

The judgment is affirmed. The City is to recover its costs 

on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.