Judge v. County of Los Angeles CA2/8 ( 2023 )

Filed 8/30/23 Judge v. County of Los Angeles CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MICHAEL JUDGE, B318649
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. 19STCV06708
COUNTY OF LOS ANGELES et
al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Mark A. Borenstein, Judge, granting a new
trial. Affirmed.
Hurrell Cantrall, Thomas C. Hurrell and Melissa Cantrall
for Defendants and Appellants.
The Cochran Firm California, Brian T. Dunn for Plaintiff
and Respondent.
____________________
Michael Judge sued the County of Los Angeles and Deputy
Edwin Barragan because Barragan’s dog bit Judge. Judge’s
theory was Barragan had the dog bite Judge more severely, and
for longer, than was reasonable. The jury rendered a defense
verdict, but the trial court granted a new trial because of juror
misconduct and for other reasons.
The jury misconduct was by Jonathan Cowley, the
presiding juror, according to the declaration of another juror
named Ulbaldo Cardenas.
Cardenas declared that, during deliberations, Cowley “told
us on several occasions that in the United Kingdom . . . he was
employed as a police officer, and worked in the K-9 unit there.
He told us that, based on his past experiences in the K-9 unit, the
use of a police dog against the plaintiff was totally necessary in
order to control him. When I told Mr. Cowley that the evidence
we saw showed that the dogs listen to their commander and that
the cop should have stopped the dog from biting the plaintiff
sooner, Mr. Cowley said that, based on his personal experiences
as a police officer, that this was not true. Cowley again told me
and the other jurors that based on what he observed during his
time in the K-9 unit, a police dog will only bite based on the need
to control a person, and that, based on his personal experiences
as a police officer, for the entire time that the dog was biting, the
plaintiff must have been out of control for that whole time, and
that the dog had to keep biting him to get him under control.”
Cowley’s declaration denied Cardenas’s claims. The trial
judge, however, accepted Cardenas’s credibility and granted
Judge’s new trial motion. The County of Los Angeles and
Barragan appealed. We affirm. We review this situation with
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deference to the trial court’s fact findings and to its discretion
regarding the propriety of a new trial.
Jurors may apply their everyday life experience to evaluate
the evidence (People v. Linton (2013) 56 Cal.4th 1146, 1195) but
they may not state an opinion explicitly based on specialized
information obtained from outside sources. It is misconduct to
inject external information in the form of a juror's own claim to
expertise or specialized knowledge on a contested matter. (People
v. Steele (2002) 27 Cal.4th 1230, 1265.)
The trial court was within its rights to credit Cardenas’s
version of events and to rule Cowley’s statements crossed the
line. Cowley supposedly said that, based on his personal
experiences as a police canine officer, Judge must have been out
of control for the entire time the dog was biting and the dog had
to keep biting to get Judge under control. Cardenas’s account,
which the court credited, reported Cowley’s expert opinion about
how police dogs always behave. It was a factual claim about
events at the scene of the injury. We defer to this reasonable
interpretation of the juror’s affidavit. It established misconduct.
Was the misconduct prejudicial? Our inquiry is a mixed
question of law and fact subject to independent appellate review.
(People v. Brooks (2017) 3 Cal.5th 1, 99.) The fact of juror
misconduct usually establishes a presumption of prejudice. (Id.
at p. 98.) Nothing in our review of this record rebuts this
presumption. On the contrary, Cowley stated an authoritative
justification, based on his own background, for how long the dog
was biting Judge. His justification differed from the evidence
about the training of this dog, and his justification supported the
jury’s decision about whether the duration of the dog bite was
reasonable. The vote was close: the jurors split nine to three on
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this point. A reasonable inference is that, when an experienced
canine officer explained to jurors the facts on the ground in his
specialized trade, reasonable people lacking this experience were
probably impressed by this first-hand claim about arcane
realities. The misconduct was prejudicial.
There are other issues in the papers, but this holding
decides the appeal in favor of Judge. The appellants forfeited
their collateral estoppel argument. They did not raise it at trial
and their citation to Rodgers v. Sargent Controls & Aerospace
(2006) 136 Cal.App.4th 82 does not support their argument. We
grant the motion for judicial notice.
DISPOSITION
We affirm the order granting a new trial and award costs to
the respondent.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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