1

Filed 10/17/14 Scheinberg v. County of Sonoma CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

PAUL SCHEINBERG, as Trustee, etc.,

Plaintiff and Appellant,

v.

COUNTY OF SONOMA,

Defendant and Respondent.

 A135286

 (Sonoma County

 Super. Ct. No. SCV-242816)

In 1987, Dr. Everett and Mrs. Marceline Salmon bought an abandoned railroad 

right-of-way, located between two other parcels of land they owned in Sebastopol, and 

donated it to Sonoma County for use as part of a public trail. In exchange, the County 

promised to convey an easement over the railroad property to the Salmons to permit

access between their two parcels, but the conveyance was never finalized. Twenty years 

later, after the Salmons had died, Paul Scheinberg, trustee of the Salmon Family Trust

(Trust), entered a contract to sell the two parcels to Santa Rosa Junior College (SRJC), 

which wanted to build a satellite campus there. Among other conditions, the contract 

required the Trust to obtain an easement over the railroad property from the County. 

After it became apparent that the easement would not be readily conveyed, SRJC 

terminated the contract.

On behalf of the Trust, Scheinberg then brought this suit against the County. A 

jury rejected his claims of breach of covenant, breach of contract, and intentional 

interference with contract, and the trial court rejected his claims of inverse condemnation, 
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quiet title, mandatory injunctive relief, and specific performance. The court granted an 

easement on his claim for declaratory relief.

On appeal, Scheinberg contends that the judgment below must be reversed 

because (1) the trial court wrongly granted a directed verdict on the inversecondemnation claim; (2) the jury’s verdict on the breach-of-contract claim is internally 

inconsistent and was based on instructional errors; (3) the jury’s verdict on the claim of 

intentional interference with contract was based on an instructional error; and (4) the 

jury’s verdicts cannot stand because of juror misconduct. In its cross-appeal, the County 

contends that the court improperly granted the easement to Scheinberg.

1 We reject both 

parties’ claims and affirm.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

The Salmons owned about 20 acres of land near Highway 116 in Sebastopol. A 

strip of land originally used for a railroad track divided a small triangular parcel of their 

land, which abutted Highway 116, from the rest of their land, which did not. The

Salmons offered to buy the railroad right-of-way and donate it to the County for use in 

developing a public trail. In December 1987, the Salmons and the County entered into a 

dedication agreement. It provided that the Salmons would donate the railroad property to 

the County and that, in exchange, “the County shall convey to [the Salmons] an easement 

over and across the [r]ailroad [p]roperty for the purpose of allowing [the Salmons] access 

between real property owned by them which lies on either side of the [r]ailroad 

[p]roperty. The easement shall be 70 feet wide.” The day after the dedication agreement 

was entered, escrow closed on the railroad property, and the Salmons executed a grant 

deed conveying the land to the County. The deed provided that it was “subject to all of 

 

1

Scheinberg filed a motion to strike the County’s cross-appellant’s reply brief on the 

grounds that the County had used it to counter issues raised in Scheinberg’s opening brief 

that could have been countered in the County’s respondent’s brief. We grant 

Scheinberg’s motion in part and disregard sections I.A. and I.B. of the County’s reply 

brief. (See Cal. Rules of Court, rule 8.216(b)(3).)
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the terms, conditions, restrictions[,] and provisions set forth in” the dedication agreement. 

(Capitalization omitted.)

The Salmons’ donation was “an important kicking-off point” for development of 

the 13-mile-long Joe Rodota/West County Trail (the trail), which was dedicated in 1995. 

The trail was “the first regional trail in the county that connected three or four 

communities” and is “fairly heavily used.” Approximately 200,000 people use it each 

year, including hikers, commuters, equestrians, and cyclists. The trail has “signals or 

stop signs” where it crosses streets, but travel on it is otherwise unrestricted.

In the early 1990’s, the County approached Mrs. Salmon to discuss several issues 

related to the trail, including the easement. The County questioned whether, in light of 

the Salmons’ plan to use the easement for residential access, the easement really needed 

to be 70 feet wide, which was nearly as wide as Highway 116 itself. Mrs. Salmon agreed 

that the easement’s width could be reduced to 50 feet. She also offered to grant the 

triangular parcel to the County for use as a trailhead. In 1992 and 1994, the County sent 

the Salmons amendments to the dedication agreement to reflect these discussions and fix 

the easement’s location, but the amendments were never executed. The County followed 

up again in 1996 after Mrs. Salmon fell ill, but she died in 1998 without having conveyed 

the easement.

Over the next several years, the County and Dr. Salmon communicated as part of 

negotiations between him and a neighboring business park about creating a joint access 

point to Highway 116 over the triangular parcel. In 2001, Dr. Salmon offered to dedicate 

the triangular parcel to the County, but only if the business park built a parking lot there. 

The business park never developed the parcel, however, and the easement was not 

processed.

Dr. Salmon died in 2006, and Scheinberg, the family’s longtime accountant, 

became trustee of the Trust. Scheinberg approached SRJC, which he knew was 

interested in purchasing the family’s property for use as a satellite campus. In mid-2006, 

SRJC sent Scheinberg a letter of intent to purchase the Trust’s property for $3.25 million. 
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Scheinberg countered at $5 million, and he and SRJC executed a revised letter of intent 

with that price. 

In early 2007, SRJC told Scheinberg that it had learned from a title search that an 

easement across the railroad property had never been recorded. Scheinberg understood 

that the easement was “important” to SRJC because it would provide access from 

Highway 116 to the proposed campus. He contacted a County employee who agreed to 

work on finalizing an easement and said the process could take several months. 

Scheinberg told the County that the easement needed to be 70 feet wide.

In May 2007, SRJC and Scheinberg executed a $5 million purchase-and-sale 

agreement. The contract contained several conditions to SRJC’s performance, one of 

which required Scheinberg to obtain, “[a]s soon as reasonably possible and not later than 

two hundred forty (240) days after the execution of [the a]greement . . . a grant deed for 

an easement for a right-of-way seventy (70) feet in width over and across” the railroad 

property. Two hundred forty days from the execution of the agreement was January 4, 

2008. The agreement provided that escrow would close over two years later, in July 

2009. It also required SRJC to deposit $300,000 with the escrow company, to be released 

to Scheinberg in $60,000 increments at specified times leading up to the close of escrow, 

including on a date a few days after the January 4, 2008 deadline.

Scheinberg did not initially tell the County that he planned to sell the Trust’s 

property to SRJC, but the County soon learned of the SRJC contract and SRJC’s plans to 

develop the property into a campus. Although SRJC anticipated that it would take 

several years before the campus was built, it planned to serve 250 to 300 students each 

semester at that campus and provide access from Highway 116 over the trail. The 

County was concerned about the campus’s potential effect on the trail and the safety of 

its users. The County also worried that SRJC, as a community college, would be able to 

exempt itself from zoning and local regulations that would otherwise give the County a 

measure of control over the easement’s development.

In August 2007, Scheinberg and the County met to discuss the easement’s terms. 

The County expressed its concerns about the large amount of possible vehicular traffic
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over the trail, and Scheinberg countered that he was entitled to an easement without 

restrictions beyond those in the dedication agreement. Scheinberg later provided a draft 

description of the easement that stated it was “for road access, construction and 

maintenance, public & private underground utilities and drainage purposes.” The draft 

excluded terms related to the County’s concerns.

In early October, the County sent Scheinberg a draft agreement to fix the easement 

and amend the dedication agreement. The County proposed a “non-exclusive seventy 

(70) foot wide roadway and underground utility and drainage easement . . . for the 

purpose of constructing, repairing, and maintaining a road, underground utilities[,] and 

drainage.” The draft agreement included a limitation to use “for ingress and egress . . . 

[for] up to eight (8) rural residential lots,” a requirement that the County approve the 

construction of any improvements, and a supplemental dedication of the triangular parcel

for use as a trailhead.

Scheinberg objected to these terms, and his attorney drafted a letter to the County 

Counsel, Steven Woodside, demanding an easement “in accordance with” that described 

in the dedication agreement and “without [any additional] material conditions, 

restrictions[,] or limitations.” The letter stated that the Trust had until January to obtain 

the easement and threatened litigation if the County did not “perform its obligations 

under the [d]edication [a]greement.” In early November, Scheinberg’s attorney met with

Woodside and showed him the letter. A few weeks later, the County sent another 

proposal to Scheinberg’s attorney that no longer limited the easement to residential use 

but added a term requiring the Trust to mitigate traffic impacts on the trail and giving the 

County the right to review and approve mitigation plans.

On December 6, SRJC’s attorney sent Scheinberg a letter notifying him of SRJC’s

intent to terminate the contract if the easement was not obtained by the January deadline. 

The same day, Scheinberg and his attorney met with Woodside and other County 

employees for further discussions. Woodside asked if the County could meet with SRJC 

directly, and Scheinberg’s attorney refused. A few days later, the County Board of 
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Supervisors held a meeting to discuss the issue and instructed Woodside to continue 

negotiating “and [to] try to reach agreement on some of [the] safety concerns.”

On December 19, SRJC’s attorney sent an e-mail to Scheinberg’s attorney 

reiterating SRJC’s intent to terminate the contract and stating that it was “very 

unfortunate that the County has taken this position to kill the deal.” The day after 

Scheinberg’s attorney forwarded that e-mail to Woodside, the County sent another 

proposal to Scheinberg. The document was styled as a list of points for settlement of the 

dispute and offered to grant an easement to SRJC in exchange for SRJC’s paying for 

various safety measures and agreeing that the County could review and approve 

mitigation measures. Five days later, on December 26, Scheinberg’s attorney forwarded 

the proposal to SRJC’s attorney and asked whether it was agreeable. A week passed 

before SRJC’s attorney responded that “[t]he County’s proposal contains too many 

unacceptable conditions to the granting of the easement” and “would also give the 

County future means to extract further concessions or withhold approvals for the 

[c]ollege’s development.” Scheinberg asked for additional time to obtain the easement, 

but SRJC refused. On January 7, 2008, SRJC terminated the contract.

Scheinberg sued the County, alleging causes of action for (1) breach of covenant

(grant deed); (2) breach of contract (dedication agreement); (3) intentional interference 

with contract (SRJC contract); (4) quiet title; (5) inverse condemnation; (6) declaratory 

relief; (7) injunctive relief; and (8) specific performance (dedication agreement).

A month-long trial took place in late 2011. The County successfully moved for a 

directed verdict on the inverse-condemnation claim. The claims of breach of contract and 

intentional interference with contract were submitted to the jury, which returned special 

verdicts finding the County not liable for either claim by a nine to three vote.

2

 The trial 

court resolved the claims for quiet title, injunctive relief, and specific performance in the 

 

2

The trial court concluded that separate jury instructions on the breach-of-covenant claim 

were unnecessary because a breach of the dedication agreement would necessarily 

constitute a breach of the grant deed. On appeal, Scheinberg does not challenge that 

ruling.
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County’s favor as well. On the claim for declaratory relief, however, the court granted a 

70-foot-wide easement to Scheinberg. The easement permits construction of a road and 

is not limited to residential use, but it is subject to various terms protecting the safety and 

enjoyment of the trail’s users and giving the County the right to review and comment on 

(but not approve) construction plans.

After the verdicts, Scheinberg’s counsel discovered that one of the jurors had 

posted a blog entry about the case during the trial. Scheinberg moved for a new trial on 

the ground of juror misconduct. The trial court found that the posting of the entry 

constituted misconduct but denied the motion, concluding that prejudice had not been 

shown.

II.

DISCUSSION

A. The Trial Court Properly Granted a Directed Verdict on the InverseCondemnation Claim.

Scheinberg claims that the trial court erred as a matter of law in granting a directed 

verdict in favor of the County on the inverse-condemnation claim. He argues that we 

must reverse the judgment and direct the court to enter judgment in his favor on this 

claim because “the undisputed facts support a finding of liability . . . as a matter of law.” 

We disagree.

The cause of action for inverse condemnation alleged that the County had 

committed a taking “by its refusal to grant the 70-foot wide access easement as required 

by the [d]edication [a]greement and as reflected by the express grant of the easement in 

that document or the express reservation of the same as reflected in the Salmons’ express 

reservation, or as required by the deed covenant/restriction.” At the close of evidence, 

the County moved for a directed verdict under Code of Civil Procedure section 630,

3

arguing that there was no taking under County of Ventura v. Channel Islands Marina, 

 

3 All further statutory references are to the Code of Civil Procedure unless otherwise 

noted.
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Inc. (2008) 159 Cal.App.4th 615 (Ventura) “because the property right at issue was 

created and governed by contract.”

The trial court orally granted the motion. It stated, “I do think that [Ventura, 

supra, 159 Cal.App.4th 615] is dispositive. . . . [¶] Here we have an . . . alleged . . . 

breach of contract, but I don’t think the [C]ounty’s conduct rises above that. I don’t 

believe there’s any regulatory taking here under the case law. First of all, I don’t think it 

was a matter of regulation but simply a possible breach of an agreement to convey an 

easement, and it certainly didn’t deprive the property owner of all value of the property. 

[¶] In addition to that, [Scheinberg] was seeking conveyance of the easement through 

quiet title in this action, and it’s my belief that by the end of this trial [he] will have an 

easement. . . . So there hasn’t been any taking in that sense.” In its subsequent statement 

of decision, the court summarized its ruling as follows: “The evidence adduced by 

S[c]heinberg did not establish facts sufficient to support a takings claim. Allegations of 

breach of contract do not rise to the level of a taking. [Ventura.]”

The grant of a directed verdict is reviewed de novo. (Baker v. American 

Horticulture Supply, Inc. (2010) 186 Cal.App.4th 1059, 1072.) “ ‘ “In reviewing a grant 

of . . . [a] directed verdict . . ., we . . . will not sustain the judgment ‘ “unless interpreting 

the evidence most favorably to [the] plaintiff’s case and most strongly against the 

defendant and resolving all presumptions, inferences[,] and doubts in favor of the 

plaintiff a judgment for the defendant is required as a matter of law.” ’ ” [Citation.]’ ” 

(Ibid.) “If there is substantial evidence to support the appellant’s claim, and if the state of 

the law also supports that claim, we must reverse the judgment.” (Conn v. Western 

Placer Unified School Dist. (2010) 186 Cal.App.4th 1163, 1174.)

The County argues that because it moved for a directed verdict after both sides had 

rested, we should view the evidence in the light most favorable to the judgment instead of 

in the light most favorable to Scheinberg. The authorities it cites, however, do not 

support this distinction. (Dina v. People ex rel. Dept. of Transportation (2007) 

151 Cal.App.4th 1029, 1045 [contrasting standard of review applicable to judgment 

entered after successful motion under § 1260.040 with that applicable to judgment after 
9

trial]; Buckley v. California Coastal Com. (1998) 68 Cal.App.4th 178, 192 [reviewing 

judgment after trial for substantial evidence].) We conclude that we must review the 

evidence in the light most favorable to Scheinberg. (See, e.g., Conn v. Western Placer 

Unified School Dist., supra, 186 Cal.App.4th at pp. 1174-1175 [reviewing evidence 

supporting judgment entered on directed verdict moved for after close of evidence in 

light most favorable to appellant]; Brassinga v. City of Mountain View (1998) 

66 Cal.App.4th 195, 207, 210 [same].) In doing so, we nonetheless conclude that the trial 

court properly granted a directed verdict on the inverse-condemnation claim because the 

County was entitled to judgment as a matter of law.

Under both the federal and California Constitutions, private property cannot be 

“taken” for public use without the payment of “ ‘just compensation.’ ” (U.S. Const., 5th

amend.; Cal. Const., art. I, § 19, subd. (a); see also First English Evangelical Lutheran 

Church v. County of Los Angeles (1987) 482 U.S. 304, 310, fn. 4.) A property owner 

may bring a cause of action for inverse condemnation to recover damages resulting from

any such unlawful taking. (First English, at p. 315; Baker v. Burbank-GlendalePasadena Airport Authority (1985) 39 Cal.3d 862, 867 & fn. 4.) The federal and state 

constitutional clauses are construed “congruently,” except for a difference in scope that is 

immaterial here. (San Remo Hotel v. City and County of San Francisco (2002) 

27 Cal.4th 643, 664.)

Under Ventura, supra, 159 Cal.App.4th 615, “[t]aking claims do not arise from a 

breach of contract.” (Id. at p. 618.) In that case, the plaintiff constructed and operated a 

marina on land it had leased from Ventura County. (Ibid.) The lease provided that the 

county could negotiate to purchase the improvements when the lease expired. (Id. at 

p. 619.) It also provided that title to the improvements would vest in the county if no 

such agreement could be reached and the improvements were not removed. (Ibid.) The 

lease expired, and the county took possession of the improvements after the parties were 

unable to reach an agreement for their purchase and the plaintiff was unable to remove 

them. (Id. at pp. 621-622.)
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The Court of Appeal held that the plaintiff had no claim for inverse condemnation. 

(Ventura, supra, 159 Cal.App.4th at pp. 624-626.) “The rights and duties of the parties 

spr[a]ng from the lease,” as did “liabilities arising from [its] breach,” and the court saw 

“no reason to impose extracontractual liability for breach, simply because the breaching 

party [was] a governmental entity.” (Id. at p. 625.) The court concluded that “[t]o say a 

breach of contract or lease implicates the Fifth Amendment to the United States 

Constitution or article I, section 19 of the California Constitution . . . stretches the 

meaning of those provisions well beyond reason.” (Ibid.)

Attempting to distinguish Ventura, supra, 159 Cal.App.4th 615, Scheinberg claims 

that the Salmons retained the easement when they conveyed the railroad property to the 

County. But this is incorrect even viewing the evidence in the light most favorable to 

Scheinberg. The plain language of the dedication agreement required the County to 

“convey” an easement to the Salmons in exchange for their donation of the railroad 

property. If the Salmons had retained the easement for themselves, there would have 

been no need for the agreement to require that the County give it back. Once the 

Salmons deeded the railroad property to the County, they had no right to an easement

independent of the dedication agreement. Scheinberg’s takings claim is thus barred 

under Ventura because the claimed taking is a breach of an agreement to convey an 

interest that did not “exist independently of the contract at issue.” (Ventura, at p. 624.)

Scheinberg also attempts to distinguish Ventura, supra, 159 Cal.App.4th 615 on 

the basis that it involved “an otherwise private commercial dispute” instead of the taking 

of property for “public use.” But such a distinction played no role in the Ventura court’s 

reasoning, which was based on the source of the property right. (See id. at p. 625.) And, 

in any event, Ventura did involve the public’s use of the improvements. (Id. at p. 621 

[noting that the county opposed the improvements’ demolition on several grounds, 

including endangerment of “public coastal access and recreational boating”].)

Scheinberg urges us to reject Ventura, supra, 159 Cal.App.4th 615 for the 

additional reason that it has been undermined by “subsequent federal authority.” We are 

not persuaded. He first cites Stockton East Water Dist. v. United States (Fed.Cir. 2009) 
11

583 F.3d 1344, which involved the federal government’s alleged breach of contractual 

promises to provide quantities of water to water agencies. (Id. at pp. 1348-1349.) The 

trial court had dismissed the takings claim solely “on the ground that the [accompanying

breach of] contract claim precluded the takings claim.” (Id. at p. 1369.) The Federal 

Circuit rejected the conclusion that a party cannot bring a takings claim and a breach-ofcontract claim in the same suit, holding that a party may allege “two alternative theories 

for recovery against the Government.” (Id. at p. 1368.) But in so holding, the court 

expressed no opinion on the merits of the takings claim. And it certainly did not hold that 

the alleged breach of contract itself constituted a taking, which is essentially what 

Scheinberg is asking us to hold here.

Scheinberg also cites Henry Housing Ltd. Partnership v. United States (Ct.Cl. 

2010) 95 Fed.Cl. 250, a case involving a plaintiff that obtained a government-backed 

mortgage requiring it to provide low-income housing at the apartments it owned until the 

mortgage was repaid. (Id. at p. 252.) The government subsequently enacted legislation 

imposing restrictions on the early repayment of such mortgages. (Id. at pp. 253-254.) 

After it was denied permission to repay its loan, the plaintiff sued, arguing that the denial 

amounted to a breach of contract and a taking because, in contravention of the original 

mortgage, it could not repay the mortgage and free itself from the obligation to provide 

low-income housing. (Ibid.) As did Stockton East Water Dist. v. United States, supra,

583 F.3d 1344, Henry Housing merely held that a party may allege breach-of-contract 

and takings claims against the government in the same proceeding. (Henry Housing, at 

p. 255; see also Century Exploration New Orleans, Inc. v. United States (Ct.Cl. 2012) 

103 Fed.Cl. 70, 77 [explaining Stockton East].) Furthermore, the interest allegedly 

“taken” in Henry Housing was the diminishment in value of property the plaintiff owned 

independently of the mortgage agreement. In contrast, the only “property” here is an 

interest that arises solely from the contract at issue.

Scheinberg also claims that Ventura, supra, 159 Cal.App.4th 615 is “in tension 

with” cases recognizing that rights arising from a contract may be the subject of takings 

claims or eminent-domain actions. But the decisions he cites do not support his 
12

argument. Although rights gained through a government contract may be protected 

against uncompensated takings, the relevant portion of the dedication agreement here did 

not convey the easement to the Salmons but was merely the County’s promise to do so in 

the future. As a result, decisions involving rights actually conveyed by contract are 

distinguishable. (See Lynch v. United States (1934) 292 U.S. 571, 574-576, 579 [Fifth 

Amendment protected beneficiary’s rights stemming from government-issued insurance 

policy]; City of Oakland v. Oakland Raiders (1982) 32 Cal.3d 60, 63-64, 76 [football 

franchise characterized as “ ‘network of intangible contractual rights’ ” potentially 

subject to city’s power of eminent domain].)

Finally, Scheinberg argues that his claim is independently viable under Nollan v. 

California Coastal Com. (1987) 483 U.S. 825 because “the County conditioned 

performance of a pre-existing obligation on the donation of additional property.” (Italics 

omitted.) In Nollan, the United States Supreme Court held that it amounted to an 

unconstitutional taking for a state agency to require a property owner to give the agency

an easement before it would issue a land-use permit allowing the owner to build a 

beachfront house. (Id. at pp. 827, 831, 834, 841-842.) Nollan and the other decisions 

Scheinberg cites are inapposite because the property Scheinberg claims was “taken” was 

the easement, but the easement is not what Scheinberg alleges the County was demanding 

be donated. (Koontz v. St. Johns River Water Mgmt. Dist. (2013) 133 S.Ct. 2586, 2591, 

2593, 2595, 2599 [agency denied land-use permit because owner would not convey 

easement or pay for mitigation measures in exchange]; Uniwill v. City of Los Angeles

(2004) 124 Cal.App.4th 537, 539-540 [city refused to certify compliance with building 

permit unless builder conveyed easement].) And as we have already explained, the 

easement is not subject to a takings claim because the Salmons never possessed it and 

only had a right to it by virtue of the dedication agreement. We conclude that the trial 

court properly granted a directed verdict on Scheinberg’s claim for inverse 

condemnation.
13

B. Scheinberg’s Challenges to the Jury’s Breach-of-Contract Verdict Are

Without Merit.

Scheinberg argues that the judgment on the breach-of-contract claim must be 

reversed because the jury’s special verdict was irreconcilably inconsistent, the jury 

should not have been allowed to interpret the dedication agreement, and the trial court 

erred by giving an instruction regarding “tender.” We reject these arguments.

1. Scheinberg waived his inconsistent-verdict claim.

Scheinberg first argues that the jury’s responses to the questions on the specialverdict form for the breach-of-contract claim are inconsistent. We conclude he waived 

this argument.

The first question on the special-verdict form asked, “Did the Salmons and the . . . 

Trust do all, or substantially all, of the significant things that the [d]edication [a]greement 

required them to do?”4 The second question asked, “Had all of the conditions that were 

required for [the] County[’s] . . . performance of the [d]edication [a]greement 

occur[r]ed?” During deliberations, the jury sent a note to the trial court asking for 

“clarif[ication of] the intent” of the second question. After receiving input from the 

parties’ counsel, both of whom agreed to the proposed response, the court responded, 

“This question refers to [an element] in Instruction 303 [i.e., the first question on the

verdict form]. . . . As stated in that element, you must determine whether the Salmons 

and [Scheinberg] performed all of their significant obligations under the [d]edication 

[a]greement.” The jury returned a verdict answering “yes” to the first question and “no” 

to the second question. Scheinberg did not object below that the answers were 

inconsistent.

A jury is not permitted to “ ‘make inconsistent determinations of fact based on the 

same evidence.’ ” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 

126 Cal.App.4th 668, 682.) “An inconsistent verdict may arise from an inconsistency 

 

4

The special-verdict form did not include a question on the undisputed first element of 

the breach-of-contract claim: that the Salmons and the County entered the dedication 

agreement.
14

between or among answers within a special verdict [citation] or irreconcilable findings.” 

(Ibid.) “ ‘Inconsistent verdicts are “ ‘against the law’ ” ’ and are grounds for a new trial.” 

(Ibid.; see also § 657, subd. (6).)

We review de novo whether a special verdict is inconsistent. (Singh v. Southland 

Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358.) Unlike a general verdict, a special 

verdict is not presumed to be correct. (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 

287, 303.) As a result, “[w]hen a special verdict is involved . . ., a reviewing court does 

not imply findings in favor of the prevailing party.” (City of San Diego v. D.R. Horton 

San Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 678.) “ ‘The appellate court is 

not permitted to choose between inconsistent answers’ ” in a special verdict, but if the 

“verdict is not ‘hopelessly ambiguous,’ the court may ‘ “interpret [it] from its language 

considered in connection with the pleadings, evidence[,] and [jury] instructions.” ’ ” 

(Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092.)

The jury’s responses to the first two special-verdict questions are not inconsistent 

on their face, and Scheinberg does not contend otherwise. Instead, he argues that the

responses are inconsistent in light of the trial court’s response to the jury’s request for 

clarification, which essentially instructed that the second question meant the same thing 

as the first one. We agree with Scheinberg that the court’s answer conflated the two 

elements. But even if the answer confused the jury and rendered its verdict inconsistent, 

Scheinberg waived any challenge by failing to object to the answer when it was given. 

His trial counsel participated in formulating the answer, approved the final answer that 

was given, and never suggested that the wrong element was being described. Under these 

circumstances, Scheinberg cannot now complain that the court’s answer created an 

inconsistent verdict. (See People v. Jennings (2010) 50 Cal.4th 616, 683 [claim that trial 

court erroneously responded to jury’s question waived “because defense counsel both 

participated in the formulation of a response and affirmatively approved of the response 

ultimately given”].)

Scheinberg also argues that, even apart from the trial court’s answer to the jury’s 

question, the jury’s responses to the two special-verdict questions are inconsistent. He 
15

claims that because “[t]here were no conditions—[i.e.], no extrinsic event—needed to 

trigger the County’s duty other than the Salmons and/or [he] doing what was required of 

them,” the jury had to answer “yes” to the second question once it answered “yes” to the 

first question. But Scheinberg agreed to the special-verdict form, and the record does not 

indicate that he ever requested a modification of it (or the jury instructions it reflected) to 

eliminate the alleged redundancy of the two questions. We conclude he therefore waived 

his claim that the special verdict was inconsistent on this basis as well. (See, e.g., 

Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1680, 1686-1687 [claim 

that verdict inconsistent waived where parties jointly prepared special-verdict form 

inviting conflicting answers]; Electronic Equipment Express, Inc. v. Donald H. Seiler & 

Co. (1981) 122 Cal.App.3d 834, 858 [“where the record is devoid of any showing that 

[an] appellant[] objected to the special verdict questions, any inherent error therein is 

waived”].)

Scheinberg argues that an inconsistent-verdict claim may only be waived where 

“the failure to object was ‘the result of a desire to reap a [“]technical advantage[”] or 

engage in a “litigious strategy.[”]’ ” (Quoting Woodcock v. Fontana Scaffolding & 

Equipment Co. (1968) 69 Cal.2d 452, 456, fn. 2.) The two authorities he cites do not 

support his position. Woodcock addressed when there may be a waiver arising from the 

“failure to object to the form of a verdict before the jury is discharged.” (Ibid.) But here 

the waiver is based not on Scheinberg’s failure to “ ‘request a more formal and certain 

verdict’ ” from the jury before it was discharged but instead on Scheinberg’s 

acquiescence to both the verdict form and the trial court’s answer to the jury’s request for 

clarification. (Id. at p. 456.) And Zagami, Inc. v. James A. Crone, Inc., supra, 

160 Cal.App.4th 1083 makes the same distinction between failure to object to the verdict 

itself, which will generally not result in a waiver, and failure to object to the verdict form, 

which generally will. (Id. at p. 1092, fn. 5, 1093, fn. 6 [“if the form of a verdict is 

defective, the complaining party must object or risk waiver on appeal of any such defect,”

italics omitted].) We therefore reject Scheinberg’s claim that the special verdict was

inconsistent.
16

2. Scheinberg fails to identify how the submission of an interpretive 

dispute to the jury could have affected its verdict.

Scheinberg next argues that the breach-of-contract verdict must be overturned 

because the trial court erred by submitting an issue of interpretation of the dedication 

agreement to the jury.5 We disagree.

The jury was instructed under a modified version of CACI No. 314 as follows: 

“The parties dispute the meaning of the following term: [‘]County shall convey to [the 

Salmons] an easement over and across the [r]ailroad [p]roperty for the purpose of 

allowing [them] access between real property owned by them which lies on either side of 

the [r]ailroad [p]roperty. The easement shall be 70 feet wide.[’] [¶] [Scheinberg] claims 

that the language means the County was obligated to grant, upon demand, an easement 

without any restriction[,] unless contained in the [d]edication [a]greement, to allow 

access across the trail at a location to be determined. [Scheinberg] must prove that his 

interpretation is correct. [¶] [The County] claims that the language means that in the 

future it would grant an easement subject to reasonable terms and conditions. [¶] In 

deciding what the terms of an agreement mean, you must decide what the parties 

intended at the time the [d]edication [a]greement was created. You may consider the 

usual and ordinary meaning of the language used in the [a]greement as well as the 

circumstances surrounding the making of the agreement.”

Scheinberg objected to this instruction on several bases, including that there was 

“no actual extrinsic evidence being offered as to the intent of the parties at the time of 

contracting, and the potential conduct of the parties after[ward] applies to modifications 

of the dedication agreement, not to the original dedication agreement and the parties’ 

understanding [of it, so] there is no question of extrinsic evidence to interpret to go to the 

jury.” The trial court ruled that the instruction “fairly set[] out what the two parties’ sides 

 

5

Scheinberg also argues that the trial court erred by refusing to give his requested 

“instructions reflecting the proper interpretation of the agreement,” including an 

instruction that the Salmons had a floating easement. He does not, however, provide any 

reason this purported failure was erroneous apart from the claim that the interpretive 

dispute should not have been submitted to the jury.
17

are” regarding their “different positions on how the obligation in the contract is to be 

interpreted.”

The first step in interpreting a contract term is to determine whether it “is 

ambiguous—that is, reasonably susceptible to more than one interpretation.” 

(Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 389.) If “there is no 

ambiguity[,] . . . then the judicial inquiry into meaning is finished and the clear and 

explicit meaning governs” and will be applied by the trial court. (Id. at p. 390.) “[A]

contract apparently unambiguous on its face,” however, “may still contain a latent 

ambiguity that can only be exposed by extrinsic evidence.” (Wolf v. Walt Disney 

Pictures & Television (2008) 162 Cal.App.4th 1107, 1133.) If a term is “ambiguous or 

uncertain,” its meaning generally “is a question of fact for the trier of fact . . ., based on 

‘all credible evidence concerning the parties’ intentions.’ ” (Cotran v. Rollins Hudig Hall 

Internat., Inc. (1998) 17 Cal.4th 93, 112.) If, however, extrinsic evidence reveals an 

ambiguity in the contract but the evidence itself does not conflict, “the interpretation of 

the contract remains a matter of law.” (Wolf, at p. 1134.)

We review de novo the issues whether a contract is ambiguous and whether 

conflicting extrinsic evidence has been presented. (Scheenstra v. California Dairies, Inc., 

supra, 213 Cal.App.4th at pp. 389-390.) “If no extrinsic evidence was presented or if the 

extrinsic evidence was not in conflict, the resolution of the ambiguity is a question of 

law, which is subject to independent review on appeal. [Citation.] Even where 

uncontroverted evidence allows for conflicting inferences to be drawn, . . . the 

interpretation of the written contract [is] solely a judicial function.” (Id. at p. 390.) But if 

the extrinsic evidence conflicts and findings of fact must be made to resolve the 

ambiguity, “appellate courts will uphold any reasonable construction [of the contract] . . . 

‘as long as it is supported by substantial evidence. [Citation.]’ ” (Id. at p. 390, fn. 14.)

Scheinberg argues that the trial court erred by instructing the jury under CACI 

No. 314 because the contract term was unambiguous and there was no conflicting 

extrinsic evidence about its meaning. There was no question on the verdict form asking 

the jury to decide between the competing interpretations, and the jury thus did not 
18

directly pass on this issue. (Cf. Wolf v. Walt Disney Pictures & Television, supra, 

162 Cal.App.4th at pp. 1116, 1133-1137 [reversing where trial court improperly 

submitted interpretation issue to jury and jury’s answer was incorrect as matter of law].) 

Scheinberg does not explain how the verdict nevertheless establishes that the jury 

accepted the County’s interpretation of the dedication agreement instead of his. The 

scope of the easement the County was required to convey bears on the issue of the 

County’s obligations under the agreement. That issue is most directly addressed by the 

third question on the special-verdict form, which the jury never reached.

It could be argued that the interpretation issue bore on the verdict form’s second 

question based on the trial court’s explanation of the jury’s verdict. The court concluded 

that the jury’s finding that not all the conditions for the County’s performance had 

occurred reflected the jury’s determination that Scheinberg did not make a reasonable 

demand. Where, as here, a contract fails to specify a time for performance, “a demand is 

‘usually necessary’ in order to give the promissor an opportunity to perform and may be 

[an implied] condition precedent to the obligation to perform.” (Drake v. Martin (1994) 

30 Cal.App.4th 984, 998-999.) The scope of the easement promised in the dedication 

agreement could bear on whether a reasonable demand was made, based on how closely 

the easement Scheinberg demanded reflected the easement promised.

But Scheinberg does not make this argument. Instead, he argues that the jury’s 

verdict cannot be construed to be a finding that he failed to make a reasonable demand 

because the jury was not instructed on conditions and the parties focused their arguments 

on other elements of the breach-of-contract claim. We acknowledge that it is difficult to 

know with precision what compelled the jury’s verdict since the jury was given little 

information about the condition element. But as noted above, Scheinberg acquiesced to 

the verdict form that permitted the jury to find that the County’s obligation to perform 

was not triggered. And in arguing against the trial court’s explanation of the verdict, 

Scheinberg fails to offer another reason that the submission of the interpretation issue to 

the jury matters.
19

Scheinberg also makes a related argument that reversal of the judgment on the 

specific-performance and quiet-title claims is required because the trial court erred by 

interpreting the jury’s verdict as a finding that no reasonable demand was made. In 

ruling on the claim for specific performance, the court relied on the finding that

Scheinberg did not make a reasonable demand for performance. Because we reject 

Scheinberg’s challenges to the jury’s verdict on the breach-of-contract claim, however, 

we must reject his challenge to the judgment on the specific-performance claim as well. 

(See Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 49 

[specific performance is remedy for breach of contract and is not available unless breach 

proven].) Furthermore, the court did not rely on the reasonable-demand finding in ruling 

on the quiet-title claim. Instead, it determined that Scheinberg did not have a “property 

interest in which title could be quieted.” As a result, Scheinberg has offered no reason to 

disturb the judgment on the quiet-title claim.

3. Any error in instructing the jury on “tender” was harmless.

Finally, Scheinberg argues that the trial court erred by instructing the jury on the 

concept of tender. This claim is also without merit.

The jury was given a special instruction that provided, “A party may satisfy its 

obligations under an agreement by tendering performance. [¶] . . . An effective tender 

has the effect of placing the party to whom the tender is made in default if that person 

refuses to accept the offer of performance.” Scheinberg objected to this instruction on 

the basis that there was no evidence the County “actually tendered an offer which met its 

obligations under the dedication agreement.”

We need not decide whether the trial court erred in giving this instruction because 

we agree with the County that any such error was harmless. The issue whether the 

County had made an effective tender was relevant to the third question on the specialverdict form, which asked whether the County “fail[ed] to do something that the 

[d]edication [a]greement required it to do and which the Salmon Family Trust demanded 

that it do”—that is, whether the County had performed its obligations under the 

dedication agreement. But the jury never reached that question because it found that “the 
20

conditions that were required for [the County]’s performance of the [d]edication 

[a]greement [had not] occurred.” Whether the County tendered performance did not bear 

on whether its obligation to perform had been triggered.

Scheinberg responds that since “the jury received no instructions or argument on 

the ‘condition’ issue it purportedly resolved[,] . . . it must have been drawing on the 

instructions and closing arguments as a whole” to interpret the second question on the 

verdict form. But he does not identify any way in which the tender instruction might 

have affected the jury’s consideration of the verdict form’s second question, and we are 

unable to perceive one. As a result, his claim fails.

C. Any Instructional Error Affecting the Claim of Intentional Interference with 

Contract Was Harmless.

Scheinberg argues that he is entitled to a new trial on the intentional-interference 

claim because the trial court incorrectly instructed the jury on the element of intent.6 We 

disagree.

The trial court instructed the jury, under CACI No. 2201, that two of the elements 

of the claim of intentional interference with contract were that the County “intended to 

disrupt performance of [the SRJC-Trust] contract” and that the County’s “conduct 

prevented performance or made performance more expensive or difficult.” Next, over 

Scheinberg’s objection, the court gave a special instruction providing that “[c]onduct, as 

used in Instruction 2201, does not include a failure to grant[,] or delay in granting[,] the

easement unless the failure or delay is motivated by the desire to cause the [SRJC] to 

terminate its agreement with the Salmon Trust.” Finally, the court gave CACI No. 2203, 

which instructed the jury that “[i]n deciding whether [the County] acted intentionally, 

you may consider whether it knew that a disruption was substantially certain to result 

 

6

Scheinberg argues that he is also entitled to a new trial on the intentional-interference 

claim because of the alleged inconsistent verdict and instructional errors relating to the 

breach-of-contract claim, since “[t]he two claims were linked conceptually and in closing 

arguments to the same underlying questions about the parties’ respective rights and who 

was at fault for SRJC’s termination of the deal.” Because a new trial on the breach-ofcontract claim is not justified for those reasons, they do not justify a new trial on the 

intentional-interference claim either.
21

from its conduct.” The jury answered “Yes” to the first two questions on the specialverdict form, which asked whether there was a contract between the Trust and SRJC and 

whether the County was aware of that contract. It answered “No” to the third question, 

which asked whether the County “intend[ed] to disrupt performance of the [SRJC] 

contract.”

Whether a jury instruction is legally correct is a question of law reviewed de novo. 

(Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 845.) 

“When a party challenges a particular jury instruction as being incorrect or incomplete, 

‘we evaluate the instructions given as a whole, not in isolation.’ ” (Cristler v. Express 

Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.) If an instruction given in a 

civil case is erroneous, reversal is not justified unless “ ‘it seems probable’ that the error 

‘prejudicially affected the verdict.’ [Citations.]” (Soule v. General Motors Corp. (1994) 

8 Cal.4th 548, 580.) In evaluating prejudice, we consider “not only the nature of the 

error, ‘including its natural and probable effect on a party’s ability to place his full case 

before the jury,’ but the likelihood of actual prejudice as reflected in the individual trial 

record, taking into account ‘(1) the state of the evidence, (2) the effect of other 

instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury 

itself that it was misled.’ ” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 

983.)

Initially, we disagree with the County’s contention that any error in the special 

instruction could not have been prejudicial because the jury never needed to apply that 

instruction. The instruction defined “conduct,” a term used for the first time in the 

verdict form’s fourth question: “Did the County of Sonoma’s conduct prevent 

performance, or make performance more expensive or difficult?” Although the jury 

never reached the fourth question, the term “conduct” was also used in CACI No. 2203. 

This instruction addressed a verdict question, aimed at the County’s intent, that the jury 

did reach.

Scheinberg contends that the special instruction was erroneous because it required 

him “to prove that the County’s conduct in failing to provide the easement was 
22

‘motivated by the desire to cause [SRJC] to terminate its agreement,’ ” not just that the 

County knew that disruption of the contract was substantially certain to occur because of 

its conduct. (Italics in original.) It is true that the intent element of a claim of intentional 

interference with contract may be established where “ ‘the defendant “knows that the 

interference is certain or substantially certain to occur as a result of his action.” ’ ” (1-

800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 586, quoting Quelimane 

Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 56); see also Korea Supply Co. v. 

Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1154 [holding that same intent standard 

applies to claim of intentional interference with prospective economic advantage].) But 

immediately after hearing the special instruction, the jury was instructed under CACI 

No. 2203 that “[i]n deciding whether [the County] acted intentionally, you may consider 

whether it knew that a disruption was substantially certain to result from its conduct.” 

Scheinberg did not and does not challenge the giving of CACI No. 2203, and he fails to 

explain why that instruction was insufficient to clarify any confusion that the special 

instruction may have created. His trial counsel argued the “substantially certain to result” 

standard in closing, and the County’s trial counsel did not argue that Scheinberg had to 

show that the County was “motivated by a desire” to interfere with the SRJC contract. 

Nor are there any indications that the jury was confused about the appropriate standard of 

intent to apply in evaluating the intentional-interference claim. Considering the record as 

a whole, we conclude that even assuming the special instruction was erroneous, it is not 

probable that the jury was misled to believe Scheinberg had to prove the County had “the 

desire to cause” termination of the SRJC agreement.7

 

7

In light of this conclusion, we need not consider other issues affecting whether any 

instructional error was prejudicial. These include whether the County was entitled to a 

directed verdict on the intentional-interference claim based on discretionary immunity 

(Gov. Code § 820.2) and, as discussed at oral argument, whether that claim was viable 

with no underlying breach of contract.
23

D. Juror Misconduct Did Not Prevent Scheinberg from Receiving a Fair Trial.

Scheinberg argues that he is entitled to a new trial on his claims for breach of 

contract and intentional interference with contract because of juror misconduct. Again, 

we disagree.

About two weeks after judgment was entered, Scheinberg moved for a new trial on 

the basis of juror misconduct. He relied on a declaration filed by his trial counsel

attesting to the discovery, after the verdict, of a blog entry posted by a juror during the 

trial. The entry was posted by the juror on his personal website during Scheinberg’s 

presentation of evidence. It was entitled “Civic Doody” and stated in relevant part:

“It turns out if you want to get chosen for a jury it’s super easy! Especially 

in a civil trial as long as you can quiet your morals and agree that given the 

weight of the evidence that in fact the rock quarry is entitled to the land 

promised to the orphanage . . . for example. So we’re on week three of this 

stupid trial with at least two more to go. The ‘Merchant of Death’ trial 

recently ended after just three weeks but apparently an easement 

disagreement is far more complex than decades of illegal arms dealing. I 

can’t give any details on the trial, partly because I’m not supposed to, but 

mainly because I stopped paying attention after day three. I will say it’s not 

like on T.V. and my resentment for everyone I see in that goddamn room 

every morning is blooming into psychotic rage. Especially Mumbles 

McLawyer for the plaintiff, Hideous Hairpiece Smoker Guy, and 

Motherfucking Toothsucking Juror Number Three, AAARRGGGHH!!! 

Stop it, stop it, stop it!!!!” (Italics in original.)

In opposition to the motion, the County submitted a declaration from the juror,

who admitted that the website was his and that he had written the entry. He stated that 

the blog was “full of rhetoric, sarcasm[,] and hyperbole” and was “meant strictly to be 

humorous entertainment . . . and [was] not meant to be taken seriously in any sense by 

anyone at any time.” He claimed that, contrary to the impression that the entry might 

have conveyed, he “took [his] role and job as a juror in this case extremely seriously,” 

paid attention to all the witnesses, evidence, and arguments, and did not discuss the case 

with others or “make up [his] mind” about the case’s outcome until after deliberations 

had begun. In particular, he characterized his “comment regarding not paying attention

during the trial [as] a poor attempt at humor” and claimed he had been “simply hamming 
24

it up for [his] intended audience.” Scheinberg moved to strike most of the declaration 

under Evidence Code section 1150 (section 1150) as consisting of inadmissible 

statements about the juror’s “mental processes.”

The trial court denied Scheinberg’s motion for a new trial. It found that the juror’s 

declaration provided sufficient foundation for admission of the blog entry. It also found 

that the “activities of the juror in question constituted misconduct” because they violated 

an instruction given to the jury before trial. That instruction, a modified version of CACI 

No. 100, stated as follows: “During the trial[,] do not talk about this case or the people 

involved in it with anyone. . . . [¶] This prohibition is not limited to face-to-face 

conversation. It extends to all forms of electronic communications. Do not use any 

electronic device or media, such as a . . . blog . . . or website, including . . . online 

diaries . . . to send or receive any information to or from anyone about this case or your 

experience as a juror until you’ve been discharged from jury duty.”

The trial court then considered whether the misconduct was prejudicial. It 

determined that the “quiet your morals” and “stupid trial” statements did not demonstrate 

bias against Scheinberg because they were general statements about the need to follow 

the court’s instructions and the juror’s frustration with the trial’s length. It also

determined that both the “stopped paying attention” statement in the blog entry and the 

portion of the juror’s declaration in which the juror stated he was paying attention were 

inadmissible under section 1150. It noted that it had “observed the juror in question 

continuously throughout the trial” and had never seen “any indication of inattention. In 

fact, the juror at all times appeared to be interested in the proceedings and carefully 

following the testimony of witnesses.” Finally, it determined that the “psychotic rage” 

statement aimed at Scheinberg’s attorney and another juror was inadmissible under 

section 1150 because it was “another example of general frustration about the 

proceedings and [did] not demonstrate a bias against [Scheinberg] or his attorney.” 

Although the blog entry contained “intemperate, insulting, and unacceptable remarks,” 

the court concluded that a new trial was not warranted.
25

Juror misconduct is grounds for granting a new trial. (§ 657, subd. (2).) If 

misconduct is established, a presumption of prejudice arises. (People v. Gamache (2010) 

48 Cal.4th 347, 397.) “However, the presumption is not conclusive; it 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 (Hasson).) Reversal is not 

justified unless the misconduct “prevented either party from having a fair trial.” 

(Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 507.)

In reviewing the denial of a motion for a new trial on the basis of juror 

misconduct, “[w]e accept the trial court’s credibility determinations and findings on 

questions of historical fact if supported by substantial evidence. [Citations.] Whether 

prejudice arose from juror misconduct, however, is a mixed question of law and fact 

subject to an appellate court’s independent determination.” (People v. Nesler (1997) 

16 Cal.4th 561, 582; Donovan v. Poway Unified School District (2008) 167 Cal.App.4th 

567, 625-626.)

Several forms of potential juror misconduct are at issue here: violation of the 

prohibition against communications with others about the case; bias and concealment of 

bias during voir dire; and inattention. We consider each in turn.

1. The posting of the blog entry by the juror was not prejudicial.

We agree with the trial court that the juror’s posting of the blog entry constituted 

misconduct, and the County essentially concedes this point. (§ 611 [jurors have “duty not 

to . . . disseminate information . . . on any subject of the trial”]; Bell v. State of California 

(1998) 63 Cal.App.4th 919, 930.) As such, a presumption of prejudice arose, and we 

must therefore consider whether that presumption was effectively rebutted.

Before answering this question, we clarify the scope of our inquiry. After 

determining that the posting of the blog entry constituted misconduct, the trial court 

assessed particular statements in the entry to determine whether prejudice resulted. The 

parties follow a similar analysis in making their arguments on appeal. The appropriate 
26

initial focus, however, is on the prejudice resulting from the posting of the blog entry

itself—as an outside communication about the case—not on whether the statements in the 

entry constitute additional forms of misconduct, an issue we consider separately.

We conclude that the record does not reveal any prejudice stemming from the 

juror’s posting of the blog entry. The purpose of the prohibition on outside 

communications is to ensure, as constitutionally required, an impartial jury that “ ‘has 

[not] been improperly influenced [citations] and . . . is “ ‘capable and willing to decide 

the case solely on the evidence before it’ ” [citations].’ ” (People v. Harris (2008) 

43 Cal.4th 1269, 1303.) There is no evidence that anyone—aside from the juror 

himself—saw the blog entry before the verdicts were returned, much less that another 

juror did. Nor is there any evidence that the entry inspired any outside communication 

with the juror at issue that might have improperly influenced him. As a result, it is not 

reasonably probable that the posting of the blog entry prevented Scheinberg from 

receiving a fair trial. (See Hasson, supra, 32 Cal.3d at p. 417.)

2. The “quiet your morals” and “stupid trial” statements do not establish 

misconduct.

We next turn to the “quiet your morals” and “stupid trial” statements in the blog 

entry. The trial court implicitly found that these statements were admissible, and neither 

party contends otherwise on appeal. We therefore consider whether they demonstrate

misconduct and, if so, whether it was prejudicial.

8

Scheinberg argues that the “quiet your morals” statement alluded to statements the 

juror made during voir dire and establishes that the juror concealed a bias in favor of the 

County before being picked for the jury. During voir dire, the juror was asked whether 

he would have any issues reaching a verdict against the County because it is a 

governmental entity. He responded, “No, I don’t think that it would affect the judgment. 

 

8

Scheinberg also takes issue with the trial court’s failure to consider the juror’s 

disparaging remark about another juror, a remark that Scheinberg contends demonstrates 

that the juror “was unlikely to be open to persuasion during deliberation by” the other 

juror. We will not consider this remark, however, because the court ruled the statement 

was inadmissible, and Scheinberg does not claim that ruling was in error.
27

I . . . can see having a problem being upset knowing that maybe money was awarded to a 

plaintiff, that would be taken from parks, but . . . that wouldn’t affect my judgment. . . . 

You know, if I felt bad that maybe my decision meant it was taking money from parks, I 

might not like the idea, but I wouldn’t let that affect the way I . . . come to judgment.”

The “quiet your morals” statement does not demonstrate improper bias or the 

concealment of bias during voir dire. The juror acknowledged during voir dire that he 

might be upset by a result in favor of Scheinberg, but only if it resulted in money being 

taken from parks—an issue not involved in this case. He also agreed that he would not 

let his personal feelings affect how he reached a decision. The statement on the blog 

does not suggest that the juror in fact could not put aside his personal beliefs while 

evaluating the case. We agree with the trial court that, if anything, the statement suggests 

the juror’s compliance with “the court’s instruction that jurors must follow the law as

stated by the court and not impose their own version of what the law should be.”

Scheinberg next argues that the “stupid trial” statement “necessarily implicate[d] 

the merits of [his] case because [he] had called all the witnesses, and [the juror] was 

blogging in the middle of [Scheinberg]’s own testimony and targeted [his] counsel for 

ridicule.” He primarily relies on Andrews v. County of Orange (1982) 130 Cal.App.3d 

944, which held that misconduct justifying a new trial occurred based on statements a 

juror made while the jury was on “a field trip to inspect . . . homes” that were the subject 

of inverse-condemnation actions. (Id. at pp. 949, 957, 960.) After another juror said, 

“ ‘Those people already have enough money, why should they get more?,’ ” the juror at 

issue said, “ ‘This whole thing is a big farce.’ ” (Id. at p. 957.) Later, the juror claimed 

“he was only expressing his feelings about the jury view of the homes.” (Ibid.) The 

Court of Appeal concluded that the statement, whether referring to the trial itself or the 

jury’s trip, showed prejudgment or bias because it suggested the juror “had already made 

up his mind” and that the proceedings were “therefore a waste of time, a ‘big farce.’ ” 

(Id. at p. 958.)

The “stupid trial” comment here is different from the “big farce” comment in 

Andrews v. County of Orange, supra, 130 Cal.App.3d 944 because it did not imply that 
28

the juror prejudged the case. For the same reason, it is distinguishable from the 

statements at issue in the other cases Scheinberg cites. (Grobeson v. City of Los Angeles

(2010) 190 Cal.App.4th 778, 783, 794, 798 [new trial warranted where juror “stated that 

she made up her mind during the second week of trial”]; Deward v. Clough (1966) 

245 Cal.App.2d 439, 441-443 [same where juror stated during trial that he didn’t “ ‘ “see 

why they don’t open up the jury room now” ’ ” because “ ‘ “[w]e could bring in a verdict 

already” ’ ”].) We agree with the trial court that, instead, the comment expresses general 

frustration with the trial. It does not establish that the juror was biased against 

Scheinberg merely because it was made while Scheinberg was putting on his evidence. 

And Scheinberg was not exclusively responsible for the trial’s length: although he called 

most of the witnesses, several of them were hostile witnesses whom the County crossexamined at length and whom the County would have presumably called if Scheinberg 

had not.

Scheinberg also suggests that the “stupid trial” statement shows the juror 

concealed his feelings during voir dire. At the end of voir dire, the County’s trial counsel

asked the potential jurors whether they had anything to say that they thought “would be 

important for both parties to know about” that might affect “whether or not [they] could 

be fair and impartial.” Another potential juror responded, “I’m not the only one who’s 

brought this up. We’re just really confused as to why this trial has to be so long. 

Because we’ve all heard about murder trials that are much shorter, you know. . . . [I]t 

seems incredibly frivolous to spend this much time on something to do with pieces of 

land.” That potential juror was later removed by Scheinberg on a peremptory challenge, 

and he contends he would also have challenged the juror at issue had he disclosed similar 

feelings during voir dire.

We question whether the juror at issue could fairly be said to have concealed any 

information at all. It is unclear both when the juror arrived at the conclusion that the trial 

was “stupid” and what was objectionable about it. It may be that he reached his 

conclusion well into the proceedings or was expressing his frustration about something 

other than the trial’s length. And even if we assume the juror was concerned about the 
29

trial’s length at the time of voir dire, the other potential juror purported to speak for 

others as well as herself. At best, the failure to express a similar sentiment after she had 

spoken constituted unintentional concealment that was “the result of misunderstanding or 

forgetfulness.” (People v. Jackson (1985) 168 Cal.App.3d 700, 702, 705 [no misconduct 

where juror did not volunteer information in response to similar catch-all question on voir 

dire]; cf. People v. Diaz (1984) 152 Cal.App.3d 926, 929-931 [juror who failed to 

respond to direct question about whether she had been victim of crime similar to that 

charged should have been discharged].) The juror’s “stupid trial” statement did not 

establish he was biased for the reasons given above, and we therefore conclude that any 

sentiment about the trial’s length he may have failed to disclose during voir dire does not 

constitute prejudicial misconduct. (See People v. San Nicolas (2004) 34 Cal.4th 614, 644 

[unintentional concealment not justification for removing juror unless “ ‘ “juror is 

sufficiently biased to constitute good cause for the court to find . . . that he is unable to 

perform his duty” ’ ”].)

3. The statements involving the juror’s level of attention were 

inadmissible.

Scheinberg next argues that the trial court erred by finding inadmissible the 

juror’s statement that he “stopped paying attention after day three” and that the statement 

also establishes that a new trial is required. We disagree.

Section 1150, subdivision (a) provides, “Upon an inquiry as to the validity of a 

verdict, any otherwise admissible evidence may be received as to statements made, or 

conduct, conditions, or events occurring, either within or without the jury room, of such a 

character as is likely to have influenced the verdict improperly. No evidence is 

admissible to show the effect of such statement, conduct, condition or event upon a juror 

either in influencing him to assent to or dissent from the verdict or concerning the mental 

processes by which it was determined.” We review the trial court’s determination of 

admissibility under this statute for an abuse of discretion. (Barboni v. Tuomi (2012) 

210 Cal.App.4th 340, 345.)
30

Our state Supreme Court considered a similar issue in Hasson, supra, 32 Cal.3d 

388. In that case, the defendant presented declarations from three jurors stating that one 

juror had read a book and various others had done crossword puzzles while evidence was 

being presented, and four jurors submitted counterdeclarations stating they had paid 

attention and denying they had engaged in any activities that prevented them from doing 

so. (Id. at p. 410.) The Supreme Court relied on a previous case interpreting section 

1150, subdivision (a) to distinguish “ ‘between proof of overt acts, objectively 

ascertainable, and proof of the subjective reasoning process of the individual juror, which 

can be neither corroborated nor disproved.’ ” (Id. at p. 413.) Under this framework, 

“ ‘[t]he only improper influences that may be proved under section 1150 to impeach a 

verdict . . . are those open to sight, hearing, and the other senses and thus subject to 

corroboration.’ ” (Ibid.) The Supreme Court determined that the counterdeclarations 

were inadmissible under section 1150 because they constituted “proof of the subjective 

mental processes of jurors,” as opposed to “proof of objectively ascertainable facts” 

contained in the original declarations. (Hasson, at p. 414.) Likewise, the juror’s 

statement here is a description of the juror’s subjective mind state, not an overt act, and 

therefore cannot be corroborated or disproved. (See id. at p. 413.) As a result, the trial 

court properly ruled that the statement was inadmissible.

Scheinberg argues there is a distinction between inadmissible “post-verdict

excuses or statements about a juror’s prior mental process,” which are “inherently 

unreliable and self-serving,” and “pre-verdict admissions about the juror’s then-existing 

state of mind,” which he contends “[are] and should be admissible.” (Italics omitted.) 

Section 1150, which applies only after a verdict has been returned (People v. Allen and 

Johnson (2011) 53 Cal.4th 60, 72, fn. 10), attempts to balance the need “ ‘to prevent 

instability of verdicts, fraud, and harassment of jurors’ ” with the desire “ ‘to give the 

losing party relief from wrongful conduct by the jury.’ ” (People v. Hutchinson (1969) 

71 Cal.2d 342, 348.) Certainly, whether a statement is made before or after the verdict 

may affect some of the policy concerns underlying section 1150. For example, the goal 

of preventing postverdict jury harassment or tampering is less likely to be undermined by 
31

the admission of statements made before a verdict was returned. But other concerns, 

such as the finality of verdicts, are just as strong when pre-verdict statements are at issue. 

Scheinberg fails to convince us that the juror’s statement here is admissible merely 

because it was made during, instead of after, the trial.

In addition, we disagree that the statement itself constitutes misconduct and is 

therefore admissible. In Grobeson v. City of Los Angeles, supra, 190 Cal.App.4th 778, 

the Court of Appeal held that a juror’s statements that she had already made up her mind 

about the case before deliberations began were admissible under section 1150 because 

they themselves constituted misconduct. (Grobeson, at pp. 788, 790-791.) Here, 

however, the statement that the juror stopped paying attention does not indicate that he 

was biased or that he prejudged the case. Prejudgment of a case is one reason that a juror 

might stop paying attention, but the juror’s statement did not connect his inattentiveness 

to his judgment of the case’s merits.

Finally, even if we were to conclude that the statement was admissible and

established misconduct, the record does not demonstrate prejudice. “ ‘[A]lthough 

implicitly recognizing that juror inattentiveness may constitute misconduct, courts have 

exhibited an understandable reluctance to overturn jury verdicts on the ground of 

inattentiveness during trial. . . . Many of the reported cases involve contradicted 

allegations that one or more jurors slept through part of a trial. Perhaps recognizing the 

soporific effect of many trials when viewed from a layman’s perspective, these cases 

uniformly decline to order a new trial in the absence of convincing proof that the jurors 

were actually asleep during material portions of the trial.’ ” (People v. Bradford (1997) 

15 Cal.4th 1229, 1349, quoting Hasson, supra, 32 Cal.3d at p. 411.) Here, there is no 

such “convincing proof.” Indeed, the only objective evidence of the juror’s level of 

attention is the trial court’s observation that the juror had paid attention and seemed 

interested throughout the trial, a factual finding to which we defer. (See People v. Nesler, 

supra, 16 Cal.4th at p. 582.) We conclude that even if the statement were admissible, it 

would not justify a new trial.
32

E. The Trial Court Did Not Abuse Its Discretion by Awarding Scheinberg 

Declaratory Relief.

In its cross-appeal, the County claims that the trial court’s grant of an easement to 

Scheinberg must be reversed.9The County does not challenge the scope of the easement 

granted. Rather, it argues that the findings the trial court made in rejecting Scheinberg’s 

specific-performance claim precluded the court from granting the easement and that two

statutes of limitations barred Scheinberg’s claim for declaratory relief. We disagree.

An action for declaratory relief may be brought by “[a]ny person interested . . . 

under a contract . . . for a . . . determination of any question of construction or validity 

arising under the . . . contract. . . . The declaration may be had before there has been any 

breach of the obligation in respect to which said declaration is sought.” (§ 1060.) 

“Declaratory relief generally operates prospectively to declare future rights, rather than to 

redress past wrongs,” and it is therefore used “to declare rights rather than execute 

them.”10 (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)

We review the trial court’s decision to grant declaratory relief for an abuse of 

discretion, although we review de novo any questions of law raised thereby. (Carson 

Citizens for Reform v. Kawagoe (2009) 178 Cal.App.4th 357, 366.)

As noted above, the trial court rejected Scheinberg’s claim for specific 

performance on the basis that the jury had determined that the County did not breach the 

 

9

The County also cross-appeals from the trial court’s denial of its motions for a directed 

verdict on the breach-of-contract claim as time-barred and the intentional-interference 

claim as precluded by discretionary immunity but states that we need only reach these 

issues if we reverse the judgment. Because we affirm the judgment, we do not consider 

these issues.

10 The trial court was acting within its authority not only in determining the scope of the 

easement but also in ordering the County to grant it. “An action for declaratory relief is 

equitable, and a court of equity will administer complete relief when it assumes 

jurisdiction of a controversy. [Citation.] Hence, in such an action it is proper for the 

court to grant any relief consistent with the evidence and the issues embraced by the 

pleadings.” (Westerholm v. 20th Century Ins. Co. (1976) 58 Cal.App.3d 628, 632, fn. 1; 

see also Laurance v. Security-First Nat. Bank (1963) 220 Cal.App.2d 622, 625-626 

[affirming trial court’s order of specific performance where plaintiff had only requested 

declaratory relief].)
33

dedication agreement because Scheinberg never made a reasonable demand for 

performance. The finding that Scheinberg never made a reasonable demand was based

on evidence that he sought a 70-foot-wide easement without restrictions. As such, that 

finding also defeated Scheinberg’s claim for specific performance, which sought to

require the County “to convey . . . the 70-foot[-]wide access easement [without]

limitations, conditions[,] or restrictions.” (See Golden West Baseball Co. v. City of 

Anaheim, supra, 25 Cal.App.4th at p. 49.) The finding did not, however, prevent the 

court from granting a more limited easement after finding Scheinberg was entitled to one.

The authorities cited by the County do not alter our conclusion. They embody the 

general principles that a court of equity cannot “create new rights under the guise of 

doing equity” or “accomplish by indirection what the law forbids to be done directly.” 

(Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 

122, 134; see also Culbertson v. Cizek (1964) 225 Cal.App.2d 451, 463; Shive v. Barrow 

(1948) 88 Cal.App.2d 838, 844.) There is no inherent inconsistency between the jury’s 

determination that Scheinberg failed to make a reasonable demand and the conclusion 

that the dedication agreement gave him a right to a more restricted easement than the one 

he demanded. None of the decisions cited by the County suggests that the denial of a 

claim for breach of contract or specific performance of a contract prevents a party from 

prevailing on an action for declaratory relief involving the same contract. (See Marina 

Tenants, at pp. 132-134 [no viable claim for equitable relief that was “wholly derivative 

of” plaintiffs’ third-party beneficiary claim, which was rejected on the merits]; 

Culbertson, at p. 464 [trial court’s determination of amount owed under contract 

improperly disregarded contract’s terms]; Shive, at pp. 840, 844-845, 850 [demurrer to 

claims for equitable relief properly sustained where plaintiffs had adequate alternative 

remedies at law].)

The County also argues that the trial court erred by granting Scheinberg’s claim 

for declaratory relief because his claim for breach of contract was barred by the statutes 

of limitations governing actions upon a contract (§ 337) and certain actions “against local 

public entities.” (Gov. Code, §§ 905, 911.2, subd. (a).) There is no independent statute 
34

of limitations governing actions for declaratory relief, and the limitations period does not 

begin to run until “ ‘ “the obligation in respect to which [the] declaration is sought” ’ ” 

has been breached. (United Pacific-Reliance Ins. Co. v. DiDomenico (1985) 

173 Cal.App.3d 673, 676.)

At the close of evidence, the County moved for a directed verdict on the breachof-contract claim on the basis that the action accrued when the dedication agreement was 

signed and was barred by the statutes of limitations. The trial court denied the motion, 

ruling that a demand for performance was required before the limitations period began to 

run and refusing to find that Scheinberg’s demand was not timely made. The County 

then withdrew its request for a jury instruction on its statutes-of-limitations defense

because it believed the defense was inapplicable if a demand was required before the 

statutes of limitations began to run. The County’s trial counsel later confirmed on the 

record that the County was no longer pursuing a statutes-of-limitations defense.

On appeal, the County’s only explanation for why the breach-of-contract claim 

was barred is that it “accrued on December 21, 1987, the date the Salmons granted the 

property to the County by way of the [d]edication [a]greement,” and “[t]herefore, the 

Salmons had to file a complaint by December 21, 1991, four years after the claim 

accrued.” But the trial court rejected this position in denying the motion for a directed 

verdict, and the County makes no attempt to explain why the court’s ruling was 

erroneous. “Contentions are waived when a party fails to support them with reasoned 

argument and citations to authority.” (Moulton Niguel Water District v. Colombo (2003) 

111 Cal.App.4th 1210, 1215.) We conclude that the County has waived its argument 

based on the statutes of limitations.

III.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.
35

_________________________

Humes, J.*

We concur:

_________________________

Ruvolo, P. J.

_________________________

Rivera, J.

 

*

Presiding Justice of the Court of Appeal, First Appellate District, Division One, 

assigned by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.