Filed 8/20/26 Romero v. LaserAway CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
STEVEN ROMERO, B343347
Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 21STCV23492)
v.
LASERAWAY, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Shirley K. Watkins, Judge. Affirmed.
Dordick Law Corporation, Gary A. Dordick and John M.
Upton for Plaintiff and Appellant.
Horvitz & Levy, Jason R. Litt, Andrew G. Spore; Koeller, Nebeker, Carlson & Haluck, Robert C. Carlson, Jr. and Scott A. Davis for Defendant and Respondent.
____________________________
Plaintiff Steven Romero appeals from the denial of his motion for a new trial in an action arising from an accident in which defendant LaserAway, LLC’s employee struck pedestrian Romero with a truck.
Romero filed his new trial motion after the jury returned a 10-to-2 verdict finding LaserAway’s employee was not negligent. He supported his motion with a posttrial declaration from Juror No. 7 stating the juror believed Romero stepped in front of the truck on purpose as an insurance fraud scheme, and that she believed insurance fraud was common in the Mexican community.
LaserAway opposed the motion, filing a second declaration from Juror No. 7 disclaiming any bias or that she said anything in deliberations about insurance fraud or Romero deliberately causing the accident. LaserAway also provided declarations from three other jurors corroborating Juror No. 7’s averment that she had not exhibited bias during deliberations or said anything about insurance fraud or Romero’s role in the accident. The trial court found these declarations demonstrated there was no misconduct. Alternatively, the court held any misconduct did not prejudice Romero because the jury voted 10 to 2 for LaserAway, and Juror No. 7 therefore was not the deciding vote.
We decline to reach the question whether Juror No. 7 was actually biased, because assuming arguendo she was, we agree with the trial court Romero was not prejudiced. There was substantial evidence to support the trial court’s finding Juror No. 7’s bias, if any, did not affect the other jurors, and because Juror No. 7 was not the deciding vote, any hidden bias did not affect the outcome.
3
In so ruling, we do not discount the potential for racial and ethnic bias in the jury box, express or implicit. The standard of review and the prejudice requirement are determinative here and compel affirmance.
BACKGROUND
1. Complaint, verdict, and Romero’s motion for a new trial Romero, through a guardian ad litem, filed a complaint against LaserAway and others after a truck driven by a LaserAway employee struck pedestrian Romero.1 The complaint alleged Romero suffered “severe permanent physical and mental injuries.”
Following trial, the jury returned a 10-2 special verdict finding the LaserAway employee driving the truck was not negligent. The trial court entered judgment for LaserAway.
Romero moved for a new trial. Romero’s motion contended Juror No. 7 “was harboring undisclosed, racially biased views regarding Mexicans and pedestrian accidents,” thus depriving Romero of a fair and unbiased jury. As previously noted, Juror No. 7 was part of the 10-juror majority that found LaserAway’s employee not negligent.
Accompanying Romero’s motion was his counsel’s declaration in which counsel stated he had spoken to Juror No. 7 after the trial, and “came to the understanding that [Juror No. 7] had a particular mindset about this type of case that seemed to me to be indicative of actual bias.” Romero’s counsel sent an
1LaserAway was not named in the original complaint, but Romero later substituted LaserAway in for a Doe defendant.
4
investigator to speak with Juror No. 7, and the investigator obtained a signed declaration from Juror No. 7.
Juror No. 7’s declaration averred that the jury took a poll at the beginning of deliberations, and in that poll, eight of the 12 jurors indicated they were in favor of LaserAway. Deliberations proceeded, and Juror No. 7 and others suggested they could not find in favor of Romero without knowing why Romero was in the road at the time he was struck. Juror No. 7 suggested to the rest of the jurors that Romero may have walked in front of the truck on purpose.
Juror No. 7’s declaration continued, “I also relied on my personal experience as a workers compensation insurance adjuster to know that people walk in front of cars deliberately to collect insurance money. In my experience, this particular type of insurance fraud is most commonly seen in the Mexic[an] community. While we did not have [Romero’s] testimony, we did have sufficient information to know that Mr. Romero was in fact from Mexico. I find the problem to be a cultural problem. I have he[a]rd of friends that go there and know about the fact that people walk in front of cars to cause an accident. Based on this life experience, I took into consideration the fact that this could have been a staged accident. I found there to be no negligence on [LaserAway] for that reason.”
2. LaserAway’s opposition LaserAway opposed the new trial motion and filed a second declaration from Juror No. 7, as well as declarations from Juror Nos. 1, 6, and 10, all of whom were part of the 10-juror majority that voted in favor of LaserAway. LaserAway objected to Juror No. 7’s first declaration under Evidence Code section 1150 as inadmissible evidence of jurors’ mental processes.
5
Juror No. 7’s second declaration averred that when the jury took the initial poll, she was one of four jurors “either unsure or in favor of finding some degree of negligence by [LaserAway’s employee].” She asserted she ultimately voted in favor of LaserAway “based solely on the evidence presented at trial and the law as instructed to me by the judge.” She denied saying during deliberations “anything about insurance fraud or people deliberately walking in front of cars to collect insurance money. I also did not say anything about Mexico, Mexican culture, or insurance fraud in Mexico or the Mexican community or culture.” “Only after the jury had reached its verdict, I made a statement that plaintiff may have walked in front of the vehicle on purpose.”
Juror No. 7 further averred Romero’s counsel’s investigator had handwritten her first declaration, and Juror No. 7 “just skimmed the declaration before signing.” She asserted she did not read the declaration carefully because she was “ready for [the investigator] to leave.” She claimed that at the time she was tired and “wanted to get back to watching my favorite television show.”
Juror No. 7 averred she “d[id] not remember” telling the investigator she voted in LaserAway’s favor based on her experience as a claims adjuster or a belief that people walk in front of vehicles to collect insurance money. She denied telling the investigator she believed insurance fraud was a cultural problem in the Mexican community, “[a]nd I don’t believe that to be true.” She denied “harbor[ing] any anti-Mexican bias,” and did not conceal anything during voir dire.
Juror No. 1 averred Juror No. 7 was one of three undecided jurors at the beginning of deliberations. Juror No. 1 asserted deliberations focused on the truck driver’s conduct, not Romero’s.
6
Juror No. 1 denied Juror No. 7 or any other juror “said anything about insurance fraud or people deliberately walking in front of cars to collect insurance money. Neither [Juror No. 7] nor any other juror said anything about Mexico, Mexican culture, or insurance fraud in Mexico or the Mexican community or culture.” Juror No. 1 did not recall any juror suggesting Romero stepped in front of the vehicle on purpose, “[b]ut if such a comment was made, it was made only after the jury had reached its verdict. Only at that point did some jurors begin to discuss why [Romero] may have been in the middle of the street.” Juror No. 1 never heard any juror “express bias or prejudice against anyone of any race or national origin.”
Juror No. 6 similarly averred Juror No. 7 was among the undecided jurors at the start of deliberations, the jury’s discussion focused on the driver’s conduct rather than Romero’s, and no one said anything about insurance fraud, walking in front of cars deliberately, or Mexico or its culture. Juror No. 6 did not recall anyone suggesting during deliberations that Romero might have walked in front of the truck on purpose, although after the jury had reached its verdict “some jurors began discussing why [Romero] might have been in the middle of the street where he was struck.” Juror No. 6 never heard any juror express bias based on race or national origin.
Juror No. 10 corroborated the deliberations focused on the driver’s conduct rather than Romero’s, and no one mentioned insurance fraud, deliberately walking in front of cars, or Mexico and its culture. Juror No. 10 averred, “If any juror expressed during deliberations the idea that [Romero] may have walked in front of the vehicle on purpose, it was . . . Juror No. 4[ ] who floated that idea.” “Apart from [Juror No. 4’s] statement, the
7
idea that Mr. Romero had attempted suicide was not discussed further.” Juror No. 10 denied any juror expressed bias based on race or national origin.
Juror No. 10’s declaration further averred, “After the verdict was decided, the foreperson asked whether anyone wanted to give their thoughts about the trial, because we had been here for a month and had not been able to do that under the judge’s instructions. At this point, some jurors began discussing [Romero’s] conduct and how little we knew about him or what he was doing the morning of the accident.”
3. Trial court’s ruling The trial court denied the motion for a new trial.
Explaining its reasoning, the court first found both of Juror No. 7’s declarations and the other three juror declarations admissible.2 The court did not find Juror No. 7’s first declaration credible. The court found Juror No. 7’s second declaration credible, however, because of the other jurors’ declarations “support[ing] [Juror No. 7’s] testimony that she made no statements about insurance fraud or Mexican culture/community
2 At the beginning of its written order, the trial court stated it sustained LaserAway’s objections numbered 1–5, which included the objections to Juror No. 7’s first declaration. Given the court’s subsequent express statement that it found both of Juror No. 7’s declarations admissible, we conclude that later statement controls and the court did not intend to sustain the objections to Juror No. 7’s first declaration. (People v. Beltran (2013) 56 Cal.4th 935, 945, fn. 7 [“ ‘ “when . . . the record is in conflict . . . that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence” ’ ”].)
8
during deliberations.” The court found Romero therefore “failed to establish any misconduct by the jury or any irregularity during voir dire.” The court continued, “In addition, as the vote was 10-2 finding no liability, there also was no prejudice to [Romero].”
Romero timely appealed.
DISCUSSION
A. Applicable Law “[W]hen a trial court is considering a new trial motion based on jury misconduct, it must undertake a three-step inquiry and decide (1) whether affidavits supporting the motion are admissible, (2) whether the evidence establishes misconduct occurred, and (3) whether the misconduct was prejudicial.” (TRC Operating Co., Inc. v. Chevron USA, Inc. (2024) 102 Cal.App.5th 1040, 1063 (TRC) review dismissed June 18, 2025, S286233.)
“[A] finding of misconduct creates a presumption of prejudice.” (TRC, supra, 102 Cal.App.5th at p. 1083.) The burden then shifts to the opposing party to rebut the presumption. (See People v. Hem (2019) 31 Cal.App.5th 218, 229–230.) The presumption “can be rebutted . . . by either ‘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.’ [Citation.]” (TRC at pp. 1083–1084, italics omitted.)
On review of a juror misconduct ruling, we “ ‘accept the trial court’s factual findings and credibility determinations if they are supported by substantial evidence, but . . . exercise [our] independent judgment to determine whether any misconduct was prejudicial.’ [Citation.]” (People v. Stayner (2026) 19 Cal.5th 395,
9
562.) We defer to the trial court’s factual findings and credibility determinations “whether the trial court’s ruling is based on oral testimony or declarations.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479; accord, Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711, fn. 3.)
B. LaserAway Successfully Rebutted the Presumption of Prejudice Romero argues Juror No. 7’s first declaration demonstrated racial bias, and Juror No. 7’s failure to disclose that bias during jury selection constitutes prejudicial juror misconduct meriting a new trial.3 He argues the trial court’s credibility determination, which favored Juror No. 7’s second declaration over her first, is not supported by substantial evidence.
LaserAway argues Juror No. 7’s first declaration was inadmissible under Evidence Code section 1150, and even if admissible, under the applicable standard of review this court must defer to the trial court’s finding the first declaration was not credible. LaserAway alternatively argues Romero was not prejudiced by Juror No. 7’s purported bias because “the jury’s 10-to-2 verdict shows the vote of a single juror would not have made any difference.”
We agree with LaserAway that, even if arguendo Juror No. 7’s first declaration was admissible and established she concealed racial bias during voir dire, there was no prejudice under the facts as found by the trial court. Setting aside the
3 For purposes of this appeal we adopt Romero’s characterization of Juror No. 7’s purported bias as based on race, but recognize it could also be characterized as bias based on other protected characteristics such as ethnicity or nationality.
10
credibility of Juror No. 7’s own declarations, the other jurors’ declarations are substantial evidence supporting the trial court’s conclusion that Juror No. 7 did not say anything during deliberations about the possibility that Romero stepped in front of the truck on purpose, nor did she say anything about insurance fraud or Mexicans. Romero concedes “the other juror declarations . . . confirm[ed] that [Juror No. 7] never made any such statements during deliberations.” Thus, there is substantial evidence rebutting any presumption that Juror No. 7’s purported bias prejudiced Romero by causing the other jurors to vote against Romero when they otherwise would not.
Romero argues that even if the other jurors’ declarations establish Juror No. 7 did not say anything overtly biased during deliberations, those declarations do not prove Juror No. 7 “did not harbor such bias or that it did not affect her vote.” (Boldface & italics omitted.) Romero contends that by focusing on Juror No. 7’s conduct during deliberations, “the trial court never even attempted to assess the fundamental issue of whether [Juror No. 7] did, in fact, harbor a racial bias against Romero.” (Italics omitted.)
Even assuming Juror No. 7 harbored a hidden bias against Romero, we do not see how this affected the outcome. “[C]ivil juries need not be unanimous.” (TRC, supra, 102 Cal.App.5th at p. 1089.) Thus, “ ‘where a jury renders a unanimous verdict against the complaining party, evidence of only one impermissibly tainted juror does not compel reversal as in a criminal case because the remaining untainted jurors were sufficiently numerous to render a proper and fair verdict, and the record conclusively rebuts the presumption of prejudice.’ [Citation.]” (Ibid.)
11
Here, the verdict was 10 to 2 in favor of LaserAway, so even without Juror No. 7 there were enough jurors to render an unbiased verdict for the defense.
We recognize that “vote counting is not the sole arbiter of whether prejudice has occurred.” (TRC, supra, 102 Cal.App.5th at p. 1090.) Romero speculates Juror No. 7’s purported bias, “while not expressed ‘out loud,’ may well have resulted in her presentation of convincing arguments for a defense verdict.” He cites a law review article for the principle that certain juries engage in “ ‘verdict-driven’ ” deliberations, characterized by “ ‘jurors polling each other early on in deliberations and then exerting pressure to get the minority jurors to side with the majority.’ ” (Italics & fn. omitted.)4 Again quoting the law review article, Romero argues, “ ‘If one or more jurors decide right away which is the winning side without adhering much to the true facts of the case, the evidence presented, and the jury instructions, that could be problematic for the rest of the jury and ultimately, the minority [party].’ ” “[I]f ‘such jurors reside in the majority for reaching a verdict against the minority [party], those jurors can exert their pressure, along with the rest of the majority, to get the less participatory (and more likely women or minority) jurors to join the majority and reach a verdict against the [minority party].’ ”
Juror No. 7’s second declaration and the other jurors’
declarations are substantial evidence Juror No. 7 did not exert pressure on the other jurors to reach a defense verdict based on a biased view of the case. Juror No. 7 and two of the other jurors
4 Romero’s cited law review article is Saddler, A Defendant’s Race as a Determinant of the Outcome of His Lawsuit (2019) 2019 U. Ill. L.Rev. 1771.
12
averred that when the jury took a poll at the beginning of deliberations, Juror No. 7 was among the minority of undecided or plaintiff-inclined jurors. She therefore did not “ ‘decide right away which is the winning side,’ ” as Romero posits.
Given substantial evidence supports the trial court’s finding Juror No. 7 did not express bias during deliberations or pressure the other jurors based on her purportedly biased view of the case, we conclude vote counting is an appropriate measure of prejudice in this case, and is fatal to Romero’s claim of jury misconduct.
Romero argues the presence of a biased juror should be structural error for which a showing of prejudice is unnecessary, as it can be in the criminal context. (In re Carpenter (1995) 9 Cal.4th 634, 654 [“if it appears substantially likely that a juror is actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict”].) He argues, “[T]he burden of establishing a different result from bias concealed on voir dire should not fall on the party impacted by that bias.” (Italics omitted.)
“A strict rule that one tainted juror compels reversal is necessary in criminal cases because under the California Constitution, the jury must unanimously agree that a defendant is guilty.” (Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 322.) Because jurors need not be unanimous in civil cases, however, “the strict . . . rule regarding one tainted juror is neither necessary nor appropriate.” (Ibid.) We decline to deviate from case law requiring a showing of prejudice before we may reverse a civil verdict based on juror misconduct.
We further note existing law does not impose a burden on the party complaining of jury misconduct to establish prejudice —
13
rather, the law presumes prejudice upon a showing of juror misconduct, thus placing the burden on the opposing party to rebut that presumption. (TRC, supra, 102 Cal.App.5th at p. 1083.) “ ‘The law thus recognizes the substantial barrier to proof of prejudice” in cases of juror misconduct. (Ibid.) Although the presumed-prejudice rule falls short of the structural error rule urged by Romero, the deck is not as stacked against him as he implies.
In affirming the judgment, we do not intend to minimize the importance of identifying and rooting out racial bias, both explicit and implicit, from judicial proceedings, and we recognize the historical harms caused by such bias. In this case, however, in which Juror No. 7 was not the deciding vote and the trial court found credible LaserAway’s affirmative evidence that her purported bias did not affect the other jurors in arriving at their verdict, we cannot conclude that bias prejudiced Romero.
DISPOSITION
The judgment is affirmed. LaserAway, LLC is awarded its costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. M. KIM, J.