Filed 9/8/26 Salinas v. Ortiz CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
NICOLE SALINAS et al., B333235
Plaintiffs and Appellants, (Los Angeles County Super. Ct. No.
v. BC569227)
FERNANDO GALVIS ORTIZ, Defendant and Appellant;
NISSAN NORTH AMERICA, INC. et al., Defendants and Respondents.
APPEALS from a judgment of the Superior Court of Los Angeles County, J. Stephen Czuleger, Judge. Affirmed.
The Homampour Law Firm, Arash Homampour, Corey C.
Arzoumanian, Nareen M. Touloumdjian; The Ehrlich Law Firm, Jeffrey I. Ehrlich; The Torkzadeh Law Firm and Reza Torkzadeh for Plaintiffs and Appellants Nicole Salinas, Shanel Salinas, and Alisa Beasley.
Horvitz & Levy, Lisa Perrochet, Robert H. Wright;
Hinshaw & Culbertson, Robert L. Reisinger and Jeanette D. Lawrence for Defendant and Appellant Fernando Galvis Ortiz.
Klein Thomas Lee & Fresard, Paul R. Lee, Gregory P.
Gilmer, and Brandon L. Boxler for Defendants and Respondents Nissan North America, Inc., Nissan Technical Center North America, Inc., Nissan Design America, Inc., HNL Automotive, Inc., and Calsonic Kansei North America, Inc.
******
A young woman suffered severe and traumatic brain injuries when the 2011 Nissan Altima in which she was a passenger was “T-boned” in an intersection by a Ford F-150 truck traveling 70 miles per hour. The injured woman (and her sister) sued Nissan for defectively designing the side airbag system (and for failing to warn of that defect), and sued the Ford F-150’s driver, whom the police determined was under the influence of alcohol. After a multi-week trial, the jury found that the airbag system was not defective, found that the driver was accordingly 100 percent liable for her injury, and awarded the severely injured woman more than $20 million in damages. The woman appeals the trial court’s refusal to grant a new trial based on instructional error and jury misconduct. The driver cross-appeals
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the trial court’s rulings precluding him from disputing that he was the driver and rejecting his argument that the woman had agreed to accept a $30,000 settlement with his insurance company. Because these challenges to the verdict lack merit, we affirm.
FACTS AND PROCEDURAL BACKGROUND I. Facts A. The collision In the early morning hours of Sunday, May 11, 2014, a Ford F-150 truck slammed into the passenger side of a 2011 Nissan Altima where Manchester Boulevard and Vermont Avenue intersect in the City of Los Angeles. The truck was traveling over 70 miles per hour as it approached the intersection, but the driver applied the brakes at the last minute, reducing its speed to 54 to 58 miles per hour at the moment of impact.
Based on eyewitness testimony, the position of the driver’s seat, and what a responding officer witnessed, the Los Angeles Police Department determined that Fernando Galvis Ortiz (Ortiz) was driving the Ford F-150 truck. After administering several field sobriety tests, the police also determined that Ortiz was under the influence. Ortiz’s mother and stepfather were also in the truck; at the scene, the stepfather told police that he was a passenger.
The driver of the 2011 Altima was Nicole Salinas (Nicole).1 Shanel Salinas (Shanel) was asleep in the front passenger seat. The Nissan’s side impact airbag deployed upon impact. Shanel suffered two traumatic brain injuries—namely, (1) a diffuse
1 Because the Salinas sisters share the same last name, we use their first names for clarity. We mean no disrespect.
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axonal injury (that is, a shearing of brain tissue due to abrupt movement of the brain), and (2) hypoxia (that is, a temporary deprivation of oxygen to the brain). Shanel’s skull had no fractures, and her forehead had abrasions consistent with rubbing across the surface of a deployed airbag. As a result of the brain injuries, Shanel had to re-learn how to walk and talk, and will suffer severe cognitive defects for the rest of her life that will necessitate she receive 24-hour care.
B. Ortiz’s plea to felony DUI The People charged Ortiz with the felony crime of driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a)) and further alleged that he had personally caused great bodily injury to Shanel (Pen. Code, § 12202.7, subd. (b)). Ortiz faced a maximum prison sentence of 11 years.
After Ortiz’s first trial ended with a hung jury, Ortiz on March 3, 2016 entered a guilty plea to the felony DUI charge and admitted the personal great bodily injury enhancement. During the plea colloquy, Ortiz was specifically asked, “You admit driving on the date of the incident?” and he said, “Yes.” Pursuant to the plea agreement, the trial court imposed an eight-year prison sentence, suspended the execution of that sentence, and placed Ortiz on formal probation for five years with a requirement that he complete 500 hours of community service; the net effect was that Ortiz served no prison time. II. Procedural Background A. Complaint On January 14, 2015, Shanel (through a guardian ad litem)
and Nicole (collectively, plaintiffs) sued Nissan (as the
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manufacturer of the 2011 Altima) and Ortiz.2 Against Nissan, plaintiffs alleged claims for defective design of the side airbag system as well as failure to warn of its dangers, under both strict liability and negligence theories. Against Ortiz, plaintiffs alleged negligence.
B. Trial and verdict The matter proceeded to a 19-day jury trial in the spring of 2023.
Regarding plaintiffs’ design defect (and related failure to warn) claims, the trial was largely a battle of the experts. On plaintiffs’ side, several experts opined that (1) the 2011 Altima’s side airbag did not inflate to full capacity and thus had a “dead zone” (where the airbag inflated less) located in front of the interior pillar that connected the car’s roof to its chassis between the front and rear passenger seats (called the “B-pillar”), and (2) Shanel’s head struck the B-pillar as a result of this “dead zone,” which caused her brain injuries. On Nissan’s side, several experts opined that (1) the 2011 Altima’s side airbag system did not have a defective design in light of all of the testing Nissan
2 Plaintiffs also sued the designer of the airbag (Autoliv); sued the dealership where plaintiffs had purchased the 2011 Altima (HNL Automotive, Inc., which was doing business as Hooman Nissan of Culver City); sued TRW Vehicle Safety Systems; and sued several other Nissan-related entities (namely, Nissan Technical Center North America, Nissan Design America, Nissan North America). Plaintiffs settled with Autoliv prior to the trial. The parties stipulated that Nissan Motor Corp., Limited, Nissan North America, Inc., and HNL Automobile were “one and the same.” The record on appeal does not disclose why plaintiffs did not proceed to trial against the remaining defendants.
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performed on the system before implementing it, and (2) the nature of Shanel’s physical injuries (chiefly, the lack of any skull fracture and abrasions consistent with impact with a deployed airbag) confirm that her head struck a fully inflated side airbag and not the B-pillar. The trial court instructed the jury on both the consumer expectations and cost-benefit tests for assessing whether there was a design defect, and also instructed the jury on the failure to warn theory.
Regarding plaintiffs’ negligence claim against Ortiz, the trial court instructed the jury that Ortiz “agrees that he was negligent, but denies that the negligence caused [p]laintiffs the full extent of their harm.”
After one day of deliberations, one of the jurors (Juror Moran) became ill. With the parties’ concurrence, the trial court substituted an alternate juror and instructed the newly constituted jury to “set aside and disregard all past deliberations and begin [its] deliberations all over again.”
In a special verdict form, the jury found, by a 10-2 vote, that the 2011 Altima side airbag system “perform[ed] as safely as an ordinary consumer would have expected,” that the “benefits” of the system’s design “outweigh[ed] the risks of [its] design,” and that Nissan did not fail to warn of any defects; as a consequence, the jury found that Nissan was not at all “responsibl[e] for Shanel’s harm.” The jury found that Ortiz was “100 percent” responsible for her harm. The jury awarded Shanel damages of $20,641,626, and Nicole damages of $100,000.3
3 Shanel’s damages consisted of $358,241 in lost past earnings; $2,056,005 in lost future earnings; $13,727,380 in future medical expenses; $1 million in past noneconomic loss; and $3.5 million in future noneconomic loss. Nicole’s damages
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C. Motion for new trial After the entry of judgment, plaintiffs filed a motion for new trial on several grounds. As pertinent here, plaintiffs argued that (1) the trial court erred in not giving plaintiffs’ Special Instruction No. 1 addressing the weight to be given to evidence of Nissan’s compliance with federal safety standards, and (2) jury misconduct. After further briefing, and a hearing, the trial court on September 8, 2023 denied the motion.4 D. Appeal and cross-appeal Plaintiffs timely appealed. Ortiz also timely appealed.
DISCUSSION
I. Plaintiffs’ Appeal Plaintiffs concede that substantial evidence supports the jury’s verdict in Nissan’s favor. Instead, they argue that the trial court erred in denying their motion for new trial due to an instructional error and due to jury misconduct. (Code Civ. Proc., § 657, subds. (2) & (7) [new trial appropriate for “[m]isconduct of the jury” or an “[e]rror in law,” respectively]; Bristow v. Ferguson (1981) 121 Cal.App.3d 823, 826 [“An erroneous or misleading instruction is an error in law.”])
consisted of $50,000 in past noneconomic loss, and $50,000 in future noneconomic loss.
4 Ortiz also filed a partial motion for a new trial, seeking an offset of damages due to plaintiffs’ earlier settlement with the airbag manufacturer, Autoliv. The trial court granted Ortiz’s partial motion and reduced the damages award by a $3,705,000 offset.
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A. Claim of instructional error 1. Pertinent facts
a. Overview of evidence presented at trial During the trial, Nissan presented evidence that the 2011 Altima’s side airbag system met the federal requirement for safety promulgated by the National Highway Traffic Safety Administration (NHTSA) by passing NHTSA’s deformable barrier test for side airbags, and met the industry standard for safety set by the Insurance Institute for Highway Safety (IIHS) by passing IIHS’s deformable barrier test for side airbags.
b. Opening statements Anticipating Nissan’s evidence of compliance with these testing requirements and standards, plaintiffs argued in their opening statement that “a vehicle can pass government testing and still be unsafe.”
In its opening statement, Nissan indicated that it subjected the 2011 Altima to the NHTSA and IIHS safety tests, and that it also performed several tests that went beyond the NHTSA requirements and the IIHS standard—namely, (1) a pole impact test of the side airbag before that test became mandatory in 2013, and (2) a deformable barrier test at a speed five miles per hour faster than the NHTSA’s deformable barrier test.
c. Expert testimony during trial Three of plaintiffs’ expert witnesses testified that the NHTSA safety standards were “minimum standards” that set a “floor, not a ceiling,” such that compliance with those tests did not mean that 2011 Altima’s side airbag system was not defective.
Nissan’s experts did not dispute this principle. One of those experts acknowledged Nissan’s commitment to “go[ing]
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above and beyond government requirements to ensure [its] cars are safe.” Other Nissan experts noted that Nissan’s testing of the 2011 Altima’s side air bag system went beyond what the NHTSA safety regulations required because Nissan performed the IIHS deformable barrier test, conducted the NHTSA test at a higher speed, and conducted the pole impact test at a time when NHTSA had yet to make that test a requirement.
d. Plaintiffs’ Special Instruction No. 1 Prior to closing arguments, plaintiffs requested that the trial court give Special Instruction No. 1, which provided that “Compliance with a Federal Motor Vehicle Safety Standard or [R]ule does not exempt a person from liability at common law. ‘Person’ includes a nonperson party.” Plaintiffs urged that this instruction was necessary to ensure that the jury was not “misled” into thinking that Nissan’s evidence of compliance with the NHTSA safety requirement was enough by itself to “exempt Nissan from liability.” Nissan denied that it had made such an argument. The trial court asked whether Nissan was “going to argue that . . . compliance . . . excuses Nissan.” When Nissan indicated it would not, the court declined to give the instruction with the provision that it would revisit its ruling if Nissan “mak[es] that argument.”
e. Nissan’s closing argument and plaintiffs’
renewed request for Special Instruction No. 1 During its closing argument, Nissan argued that the 2011 Altima side airbag system satisfied the NHTSA safety requirement, met the IIHS industry standard, and passed the additional tests Nissan performed that were neither required by NHTSA nor the IIHS. As plaintiffs concede, at no point did
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Nissan ever assert that its compliance with the NHTSA safety requirement excused it from liability.
After Nissan completed its closing argument, plaintiffs renewed their request for Special Instruction No. 1 on the ground that Nissan’s mention of government testing “impli[ed]” that compliance with that testing exempted Nissan from liability. The trial court denied the request, finding that Nissan’s “touching” on the topic of “government test[ing]” was insufficient to warrant the instruction.
f. New trial motion
In their new trial motion, plaintiffs argued that the trial court’s refusal to give Special Instruction No. 1 was an “error in law” mandating a new trial. In support of their motion, plaintiffs submitted a declaration from one of two dissenting jurors (Juror Diaz), who stated that two other jurors had voiced their view that “the . . . Altima car must have been safe because it passed all the government tests”—and that “six to seven other” jurors “agreed” with that sentiment. Plaintiffs also submitted a declaration from the juror who was excused due to illness before the deliberations started anew (Juror Moran), who said that during the aborted deliberations, “six or seven jurors discussed . . . the number of tests” performed.5 Along with its opposition to the motion, Nissan submitted declarations from two jurors who participated in the second set of
5 Juror Moran also stated that “six or seven jurors gave weight to the number of tests the Nissan Altima car passed” and that “if the instruction had been given it would have helped us and changed minds”, but plaintiffs concede on appeal that these statements regarding how jurors weighed or would have evaluated the evidence are inadmissible under Evidence Code section 1150. The latter statement is also wholly speculative, as
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deliberations, each of whom acknowledged that the jurors discussed the various tests Nissan performed but each of whom confirmed that no juror “said that Nissan could not be liable just because the [2011] Altima met governmental safety standards or passed certain tests.”
The trial court rejected plaintiffs’ claim of instructional error. The court noted the “great deal of evidence” “throughout the trial” on “testing, approvals and safety consideration[s].” The court found Nissan’s mention of “the totality of that testing” in closing argument “did not go over the line and mislead the jury” into treating compliance with the NHTSA (or even the IIHS) standards as being a complete defense. The court also found a “lack of prejudice.”
2. Analysis
Plaintiffs argue that the trial court erred in not instructing the jury with Special Instruction No. 1. We evaluate de novo this claim of instructional error. (People v. Parker (2022) 13 Cal.5th 1, 66 (Parker).)
A manufacturer’s compliance with federal safety standards (or, for that matter, compliance with industry custom) is relevant to the question whether the product at issue was defectively designed. (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 548; Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1830-1831; Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 34-36 (Kim) [same, as to industry custom].) But such compliance is not dispositive, and thus does not by itself constitute a “complete defense”; federal safety standards erect a “minimum,” such that a product complying with those standards
it turns on how Juror Moran thought other jurors would have subjectively evaluated the evidence.
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may still fail to meet the consumer expectations or risk-benefit tests for a design defect under tort law. (Ramirez, at pp. 547-548; Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 547 [“satisfaction of the [federal] standards would not constitute a complete defense”]; Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1321 [“compliance with federal motor vehicle safety standards does not preclude liability for defective design”]; 49 U.S.C. § 30103(a); Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 65 [same, as to failure to warn claims].)
In this case, Nissan elicited evidence that the side airbag system in the 2011 Altima complied with the NHTSA safety standard. This evidence of compliance is relevant to the question of whether the side airbag system was defective. Because Nissan at no point elicited testimony or argued that compliance with the NHTSA standard was dispositive of its liability, Special Instruction No. 1 was not necessary to rebut a defense that was never advanced. (Fox v. City & County of San Francisco (1975) 47 Cal.App.3d 164, 173 [“instruction” that is “abstractly correct as a statement of law” need not be given if “it is not within the issues developed by the evidence or [the] reasonable inferences therefrom”].) We reject plaintiffs’ suggestion that the presentation of NHTSA compliance necessarily implied that compliance should be viewed as a complete defense because that implication is not reasonable on this trial record—where one of Nissan’s experts frankly acknowledged that Nissan went “above and beyond” federal compliance and where Nissan’s voluntary undertaking of several additional tests that went above and
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beyond NHTSA compliance refuted any notion that simple compliance with NHTSA standards was enough.
Plaintiffs respond with what boils down to a single argument. Specifically, plaintiffs argue that Special Instruction No. 1 is a request for a limiting instruction and that Kim, supra, 6 Cal.5th 21, 38 holds that, if requested, a “trial court must issue a jury instruction that explains how” evidence of industry custom “may and may not be considered” in a design defect case. (Italics added.) Even if we assume for the sake of argument that Special Instruction No. 1 is a limiting instruction (because it would permit the jury to consider NHTSA compliance as relevant, but prohibit the jury from treating such compliance as dispositive), and even if we adhere to Evidence Code section 355’s mandate that a court “shall . . . instruct the jury” when a limiting instruction is requested, we reject plaintiffs’ argument because any error in failing to give Special Instruction No. 1 is not prejudicial.6 (People v. Housley (1992) 6 Cal.App.4th 947, 958- 959 [failure to give a limiting instruction aimed at stopping “potential for misuse” of evidence is evaluated for prejudice]; People v. Gonzalez (1978) 81 Cal.App.3d 274, 279 [failure to give a limiting instruction is evaluated for prejudice].) Here, there is no reasonable probability that the instruction would have affected the outcome of this case because Nissan at no point expressly or implicitly defended on the ground that the 2011 Altima’s compliance with the NHTSA standards was dispositive or a complete defense to plaintiffs’ claims. Nor do the juror
6 Plaintiffs’ also seem to suggest that the failure to give Special Instruction No. 1 is a structural error, but that argument ignores the prejudice requirement that applies to instructional errors.
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declarations show any prejudice: Taken as a whole, they undisputably indicate that the jury treated the tests as relevant but not dispositive, which is in accord with the law. We accordingly reject as inaccurate plaintiffs’ mischaracterization of the 2011 Altima’s compliance with the NHTSA standard as being the “centerpiece” of Nissan’s defense.
B. Jury misconduct claim 1. Pertinent facts
a. Voir dire of Juror Zepeda At the outset of questioning by the trial court, Juror Zepeda told the trial court that, “sometimes when [she] get[s] nervous, [her] English is not that good.” The trial court then asked her if she had “been able to understand” the voir dire thus far, and she said “yes.” The court then proceeded to ask Juror Zepeda dozens of questions, such as whether she had belonged to any organizations dealing with issues concerning civil law; whether she had been a litigant or knew anyone in the law; whether she had any medical training or work; whether she had ever suffered a serious medical problem; whether she had ever worked in the auto industry; whether she had ever invested in Nissan; whether she had any training as an engineer; and whether she would be comfortable deliberating with 11 strangers on a jury. Juror Zepeda provided appropriate, responsive answers to all of those questions. She also gave longer responses to questions about whether she had ever “witnessed” a “T-bone” accident, about why she would be a “fair juror,” and about her personal background. In response to a question by plaintiffs’ counsel, she also shared
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her “thoughts on th[e] concept of awarding damages for pain and suffering.”
After plaintiffs and Ortiz passed on any challenge for cause to Juror Zepeda, Nissan asserted such a challenge, citing a “language issue”—namely, its belief that Juror Zepeda was “able to conduct a simple conversation but she is not going to understand the medical and engineering testimony.” The trial court overruled the challenge, explaining that “[i]t’s her nervousness,” which is “why [the court] talked to her for a few minutes . . . before [it] started asking her questions, and she understood what [the court] was saying.”
b. Request for translation of verdict form On the first day of deliberations (before Juror Moran was excused and thus before deliberations started anew), the jury sent out a note “requesting that the questions [in the verdict form] be translated in[to] Spanish.” With the concurrence of the parties, the trial court responded in writing: “Regarding your note requesting a translation into Spanish of the verdict form, California law requires the proceedings must be conducted in English and therefore we cannot provide a Spanish translation of the verdict form.”
c. New trial motion
In their new trial motion, plaintiffs argued that the jury engaged in misconduct because Juror Zepeda regularly spoke Spanish with other jurors and needed assistance in understanding the English-language jury instructions and verdict form. In support of their motion, plaintiffs submitted a declaration from Juror Diaz (one of the two dissenting jurors), who recounted that the jury note requesting translation of the verdict form was prompted by an earlier discussion in which
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Juror Zepeda indicated she did not understand “the questions on the verdict form” and that two other jurors (Jurors Maldonado and Moran) “attempted to translate the jury instructions and the verdict” form. Juror Diaz also indicated that Juror Moran “translated into Spanish some of the things that happened during trial for [Juror] Zepeda.” Juror Moran (who was excused for illness) submitted a declaration indicating that she and Juror Maldonado “translated for [Juror Zepeda] during deliberations.”
Along with its opposition to the new trial motion, Nissan submitted declarations from Juror Joyce, who reported that Juror Zepeda “wasn’t sure about one or two technical terms” but that Juror Zepeda otherwise “understood most if not all the questions” on the special verdict form and that she “participated in the [deliberative] discussions in English.”
The trial court rejected plaintiffs’ claim of juror misconduct.
The court struck the juror declarations submitted by both parties, finding that they were “incompetent to attack the verdict in this case” under Evidence Code section 1150, and that they “are nothing more than the musings of disgruntled jurors, wild speculation as to the meaning of conversations, and/or rank hearsay.” The court further noted that the declarations “are not in everyday language but rather in the language intended to support the plaintiffs’ . . . points,” which “ma[de] them more suspect.” The court went on to rule that, even if it were to consider the declarations, Juror Zepeda was competent to serve as a juror because “a review of the entire record shows that [she] had the ability to deliberate effectively.” The court noted that Juror Zepeda “was fully voir dired before trial, and she answered questions appropriately after trial.” And the court noted that, after examining “thousands of jurors” in “hundreds and hundreds
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of trials” “over 35 years,” it did not see any “language issues” for Juror Zepeda that rendered her incompetent to serve. The court went on to further rule that the jurors’ translation of a few terms was also not misconduct, explaining that “this case involves some difficult engineering and medical testimony,” that it “would be no wonder that a juror might have some difficulty understanding certain concepts whether the principles be in English or Spanish,” and that “jurors are expected to assist each other” in “discuss[ing] the evidence and attempt[ing] to understand it”; thus, the court found “nothing untoward” in the translation of a few terms on the verdict form.
2. Analysis
In asserting juror misconduct, plaintiffs more specifically argue on appeal that (1) Juror Zepeda was unqualified to serve due to her inability to understand English,7 and (2) the conduct of other jurors translating for Juror Zepeda introduced extrinsic evidence into the jury’s deliberations that independently voids the jury’s verdict, even if Juror Zepeda were qualified to serve.
In evaluating claims of juror misconduct in a new trial motion, trial courts are to “undertake[] a three-step process.” (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 278; Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345.) First, the court must “determine whether the [juror] declarations supporting the motion are admissible . . .” (Hernandez, at p. 278.) “Second, if all or part of the declarations are admissible,” the court must “determine[] whether the facts establish misconduct.” (Ibid.) And third, “[if] the . . . court finds misconduct,” it must
7 Although plaintiffs appeared to disavow this challenge during oral argument, we nevertheless respond to the arguments raised in the briefing regarding this challenge.
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“determine[] whether the misconduct was prejudicial.” (Ibid.) Although the party seeking to invalidate a jury verdict on the basis of jury misconduct bears the burden of proving both misconduct and prejudice (Barboni, at p. 349), the latter burden is eased by the presumption of prejudice that arises once there is a finding of jury misconduct; the presumption is rebutted upon a showing that there was no “reasonable probability of actual harm to the” party seeking to invalidate the verdict. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416-417.) In reviewing the denial of a new trial motion based on juror misconduct, we accept the trial court’s credibility determinations and any factual findings that are supported by substantial evidence. (Hernandez, at p. 278; People v. Flores (2021) 70 Cal.App.5th 100, 109.)
a. Juror Zepeda’s competency to serve as a juror A juror who lacks “sufficient knowledge of the English language to understand the legal proceedings and the evidence upon which [the] juror would base . . . her decision in any given case” is not competent to serve as a juror. (People v. Eubanks (2011) 53 Cal.4th 110, 130; People v. Lomax (2010) 49 Cal.4th 530, 566-567; Code Civ. Proc., § 203, subd. (a)(6).) Sufficient knowledge of the English language does not mean complete mastery; the fact that a juror has “some language difficulty is insufficient” to render her incompetent to serve. (People v. Elam (2001) 91 Cal.App.4th 298, 316.) A trial court may dismiss a juror for her competency after trial has begun only if that incompetence appears in the record as a “demonstrable reality.” (People v. Armstrong (2016) 1 Cal.5th 432, 450; People v.
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Cleveland (2001) 25 Cal.4th 466, 474; People v. Szymanski (2003) 109 Cal.App.4th 1126, 1131.)
The trial court did not err in denying plaintiffs’ new trial motion on the ground that Juror Zepeda’s difficulty with the English language rendered her incapable of serving on the jury. As a threshold matter, the court did not abuse its discretion in discounting Juror Diaz’s declaration; apart from the possible inadmissibility of portions of that declaration under Evidence Code section 1150, the trial court found the declaration not to be credible (based on it coming from a disgruntled juror and its “suspect” verbiage). We cannot second guess that credibility finding on appeal. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 109 [“weighing the credibility of conflicting declarations on a motion for new trial is uniquely within the province of the trial court”].) At most, there is evidence that Juror Zepeda needed help understanding “one or two technical terms” on the verdict form. That is insufficient to render her incompetent to serve as a juror. And even if we assume that she was incompetent, and that the presumption of prejudice is triggered, that presumption was rebutted. Juror Zepeda’s inability to understand the verdict form at most affected Juror Zepeda; it did not affect any other juror’s inability to read and understand the English-language jury instructions and verdict. Because the vote was 10-2 for Nissan, with Juror Zepeda voting in the majority, removing her from the jury leaves a vote of 9-2 for Nissan. This falls far short of the votes plaintiffs would need to change the outcome. (Accord, TRC Operating Co., Inc. v. Chevron USA, Inc. (2024) 102 Cal.App.5th 1040, 1089-1090 [noting propriety of looking to vote count where incompetency of one juror is not likely to influence other jurors].)
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b. Translation for Juror Zepeda as introducing extrinsic evidence into jury deliberations Jury misconduct also occurs if “‘jurors . . . receive or communicate to fellow jurors information from sources outside the evidence presented in court.’” (English v. Lin (1994) 26 Cal.App.4th 1358, 1363-1364.)
The trial court did not err in denying plaintiffs’ new trial motion on the ground that jurors’ translation of a few terms for Juror Zepeda into English constituted jury misconduct.
To begin, the trial court did not err in concluding that there was no misconduct. As a matter of proof, there is no evidence that any juror engaged in any improper translating during the deliberations that resulted in the verdict. Juror Diaz reported that a few jurors assisted Juror Zepeda prior to the jury note. But after that note was issued and the court told the jury to proceed in English, Juror Moran left the jury and the jury was ordered to restart its deliberations. Because the jury is presumed to follow that admonition in the absence of evidence to the contrary (People v. Collins (1976) 17 Cal.3d 687, 694 [expressing “confiden[ce] that juries . . . will faithfully follow . . . instructions” to deliberate anew], superseded on other grounds by statute as stated in People v. Boyette (2002) 29 Cal. 4th 381, 462, fn. 19), there is no evidence of any improper translation during the operative jury deliberations. Alternatively, the acts of a handful of jurors explaining the meaning of terms on the English- language verdict form to Juror Zepeda did not necessarily constitute misconduct through the introduction of extrinsic evidence. Plaintiffs cite People v. Cabrera (1991) 230 Cal.App.3d 300, for the proposition that a juror’s translation from Spanish to English impermissibly injects extrinsic evidence into the jury’s
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deliberations, but Cabrera involved a juror who translated a Spanish-language audiotape presented at trial in a manner that contradicted the English-language translation admitted into evidence (id. at pp. 303-304); here, by contrast, the few jurors who assisted Juror Zepeda by translating a few words of the instructions or verdict form did not contradict any official translations admitted into evidence. Indeed, plaintiffs concede that any translations made by the other jurors were accurate.
And even if we assume there was jury misconduct, the presumption of prejudice has been rebutted. Juror Zepeda’s consideration of the extrinsic translation of words in the jury instructions or verdict form from English into Spanish did not affect any other juror’s ability to read or understand the English- language instructions or verdict form; were we to remove Juror Zepeda from the mix, the verdict would still be 9-2 in favor of Nissan. Plaintiffs dispute this reasoning, citing cases where the extrinsic evidence infected the entire jury—but those cases deal with extrinsic evidence of racism (Tapia v. Barker (1984) 160 Cal.App.3d 761, 765), with evidence that one juror joked with other jurors about pre-judging the case (Deward v. Clough (1966) 245 Cal.App.2d 439, 442), or with the wholly distinct error of not allowing criminal defense counsel to participate in discussions of how to address a juror’s incompetence due to language difficulties (People v. Heaps (2026) 118 Cal.App.5th 294, 300-314). II. Ortiz’s Appeal In his appeal, Ortiz argues that the trial court erred (1) in precluding him from introducing evidence that he was not the driver of the Ford F-150 at the time of the accident because that evidence would contradict Ortiz’s earlier guilty plea to felony
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DUI, and (2) in granting summary adjudication of his affirmative defense that he had already settled with plaintiffs for $30,000.8 A. Preclusion of evidence of another driver 1. Pertinent facts
In a pre-trial conference, plaintiffs moved to exclude all evidence that Ortiz was not the driver of the Ford F-150 at the time of the collision on the ground that Ortiz had entered a guilty plea with very favorable terms that was premised on Ortiz being the driver, and Ortiz should be judicially estopped from taking a contrary position in the upcoming trial. After considering two sets of opposition papers by Ortiz, the trial court granted the motion. “Having obtained the benefits of his plea,” the court reasoned, Ortiz “should not now be allowed to come into this court and take a contrary position”; “[j]udicial estoppel,” the court ruled, “applies with full force here.”
The court went on to inform the jury in the statement of the case that Ortiz was driving the Ford F-150.
Prior to the close of evidence, Ortiz put on an offer of proof as to the evidence he would introduce to substantiate that he was not driving, including statements of his mother and stepfather that the stepfather—not Ortiz—was driving the Ford F-150 at the time of the collision.
The trial court adhered to its prior ruling and instructed the jury that Ortiz was negligent and that the sole question for the jury was the extent of his contribution to plaintiffs’ injuries.
2. Analysis
Ortiz argues that the trial court erred in precluding the admission of evidence that he was not driving the Ford F-150 and
8 Nissan has indicated it has no position on either issue, other than the scope of remand were we to agree with Ortiz.
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in instructing the jury that he was. We review de novo instructional errors. (Parker, supra, 13 Cal.5th at p. 66.) We independently review whether judicial estoppel is proper on the record, and review for an abuse of discretion the trial court’s decision whether to apply the doctrine. (Filtzer v. Ernst (2022) 79 Cal.App.5th 579, 583-584.)
“The doctrine of judicial estoppel precludes a party from taking inconsistent positions in separate judicial proceedings.” (The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 841 (Swahn Group).) The doctrine “precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.” (People v. Castillo (2010) 49 Cal.4th 145, 155.) The doctrine is aimed at “maintain[ing] the integrity of the judicial system” by precluding parties from committing a “fraud on the courts” and otherwise “pervert[ing] the judicial machinery.” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986; Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 47; Swahn Group, at p. 841.) “The doctrine applies when ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’” (Aguilar, at pp. 986-987; MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.) Even when all of these prerequisites are met, the court retains discretion whether to apply the doctrine to preclude the party from taking inconsistent positions. (Miyahara v. Wells Fargo Bank, N.A. (2024) 99 Cal.App.5th 687, 697.)
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The trial court did not err or abuse its discretion in applying the doctrine of judicial estoppel to preclude Ortiz from introducing evidence or arguing that he was not driving the Ford F-150 at the time of the collision. In March 2016, Ortiz appeared in a judicial proceeding and, with the assistance of counsel, took the position that he was guilty of the felony of driving under the influence of alcohol and that he personally caused great bodily injury to Shanel; he also explicitly admitted that he was “driving on the date of the incident.” The trial court in that criminal proceeding accepted Ortiz’s position by accepting his plea, and then sentenced him to a term of formal probation with no prison time—even though Ortiz faced a maximum sentence of 11 years in prison. At the time of his plea and admissions, Ortiz was assisted by counsel and told the trial court that he was “pleading freely and voluntarily” and that no one had “made any threats or promises to [him]” beyond the plea deal. Ortiz then sought to take the position in this civil case that he was not the driver in order to escape any liability for the incident in which he had previously admitted to being the driver. The prerequisites for applying judicial estoppel were met, and the trial court acted well with its discretion in electing to apply that doctrine here. And because all of these above-cited facts are undisputed, the court did not err in applying the doctrine as a matter of law and instructing the jury that Ortiz was the driver of the Ford F-150 at the time of the collision. (Swahn Group, supra, 183 Cal.App.4th at p. 843.)
Ortiz resists this conclusion with two arguments. First, he argues that a guilty or no contest plea cannot have a preclusive effect. For support, he cites Teitelbaum Furs, Inc. v. Dominion Insurance Co. (1962) 58 Cal.2d 601 and Fawkes v.
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Reynolds (1922) 190 Cal. 204. To be sure, Teitelbaum and Fawkes unequivocally hold that the doctrine of collateral estoppel does not bar a person who pleads guilty or no contest to a crime from contesting the facts underlying that plea at a subsequent civil trial. (Teitelbaum, at pp. 604-605; Fawkes, at p. 213; Isidora M. v. Silvino M. (2015) 239 Cal.App.4th 11, 23, fn. 13; Rusheen v. Drews (2002) 99 Cal.App.4th 279, 284.) But the doctrines of collateral estoppel and judicial estoppel are different: Collateral estoppel conserves judicial resources by preventing re-litigation of issues already fully litigated, while judicial estoppel maintains the integrity of the judicial process by preventing a party from asserting inconsistent positions. (Swahn Group, supra, 183 Cal.App.4th at pp. 841-842.) The doctrine of collateral estoppel does not apply to pleas because a plea short-circuits a full litigation of guilt (see Pease v. Pease (1988) 201 Cal.App.3d 29, 34 [“[t]he issue of . . . guilt was not fully litigated in the prior criminal proceeding” ending in a plea]), but the doctrine of judicial estoppel can still apply where, as here, the same person seeks to assert inconsistent factual positions in the plea colloquy and in a subsequent civil case. What is more, the application of judicial estoppel in this case is not based merely on the fact of Ortiz’s plea—but also on his specific, factual admission to being the driver of the Ford F-150, a fact that Ortiz now seeks to specifically disavow in this civil case.
Second, Ortiz argues that judicial estoppel should not apply because he did not “succeed” in the criminal proceeding, as he pleaded guilty merely to avoid stress upon his family (rather than because he was, in fact, actually guilty). We reject this argument. Ortiz succeeded in asserting his position because the court accepted his plea and gave him the no-time sentence that
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was part of his plea deal. Ortiz’s reasons for entering the plea do not negate his success: Ortiz took an irreconcilably inconsistent position in the criminal proceedings (“I was driving”) to the one he sought to take in this proceeding (“I was not driving”); his subjective motivation for taking his prior position does not undercut the fact of the inconsistency or the harm that such gameplaying does to judicial integrity. Ortiz relatedly argues that he merely “capitulated” in the criminal proceedings, but his plea—for whatever reason—was calculated to obtain a very real benefit of a no-time sentence when he faced far more stark outcomes.
B. Refusal to enforce alleged settlement 1. Pertinent facts
a. Insurance policy
At the time of the collision, Infinity Insurance Company (Infinity) had issued a liability policy with “Ortiz” as its “insured.”
The Ford F-150 was owned by Ortiz’s stepfather.
b. Settlement negotiations On August 1, 2014, prior to their filing of this lawsuit, plaintiffs sent Infinity two letters (one each for Shanel and Nicole) offering to settle a prospective lawsuit for the policy limits of Infinity’s policy—namely, $15,000 (for a total settlement of $30,000). As pertinent here, the offers were contingent upon Ortiz, as the “insured,” submitting a declaration “under the penalty of perjury and notarized” stating that (1) “there is no other insurance coverage available to indemnify or defend against” plaintiffs’ claims, (2) “[t]he total amount of all of . . . Ortiz’s assets and holdings is less than $200,000.00,” and (3) at
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the time of the incident, Ortiz “was not driving in the course and scope of [] employment with any employer, agency, or company.” Each offer noted that Ortiz’s “acceptance of this settlement offer may be conditioned on it being subject to execution of a release agreement,” and instructed Ortiz to “provide [plaintiffs] with a release that you require to be signed” within 7 days of a written acceptance of the offer.
On August 21, 2014, Infinity sent two letters “accept[ing]”
each plaintiffs’ “demand to settle for our [i]nsured’s policy limits.” Those letters provided that Infinity’s “acceptance . . . [was] conditioned on it being subject to an execution of a release agreement of . . . Ortiz and [Ortiz’s stepfather].” Along with the letters came declarations from Ortiz and the stepfather, although only Ortiz’s stated that Ortiz’s assets and holdings were less than $200,000. The releases Infinity sent required plaintiffs to “forever releases and discharge” Ortiz and his stepfather “from any and all claims.”
On August 28, 2014, plaintiffs wrote to Infinity and explained that the requirement that the plaintiffs also release Ortiz’s stepfather constituted a “counter offer” rather than acceptance of plaintiffs’ offers; and that plaintiffs would “proceed[] with a lawsuit” against Ortiz. Plaintiffs and Infinity then exchanged several letters as to whether the stepfather might possibly be an “insured” under Ortiz’s policy with Infinity.
Plaintiffs subsequently filed suit against Ortiz.
c. Litigation over enforcement of “settlement”
Ortiz moved for summary judgment to enforce what he viewed as the binding settlement between himself (through
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Infinity) and plaintiffs. In June 2017, the trial court denied summary judgment.
In October 2016, Ortiz amended his answer to plaintiffs’
claim to add several affirmative defenses—namely, accord and satisfaction; waiver, estoppel, and unclean hands; and settlement release.
Plaintiffs moved for summary adjudication of these affirmative defenses on the ground that there was no binding settlement as a matter of law. After briefing and a hearing, the trial court denied the motion.
Plaintiffs sought a writ before this court, and a different panel of this court issued an alternative writ “tentatively conclud[ing]” that the “undisputed facts presented . . . establish[ed]” that there was “no binding settlement agreement” because Ortiz “did not meet the terms of plaintiffs’ settlement offer[s] ‘exactly, precisely and unequivocally’ within the time frame specified by the offer.”
The trial court complied with the alternative writ by granting summary adjudication on Ortiz’s affirmative defenses, and plaintiffs proceeded to trial against Ortiz.
2. Analysis
Ortiz argues that the trial court erred in precluding his affirmative defenses and ruling, as a matter of law, that there was no settlement between himself and plaintiffs.9 Where, as here, there are no factual disputes, we independently examine
9 Although this court previously issued an alternative writ expressing our tentative view that no contract was formed, that prior pronouncement is not binding on us now. (See Kowis v. Howard (1992) 3 Cal.4th 888, 894.)
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whether a contract is formed. (People v. American Surety Co. (2020) 55 Cal.App.5th 265, 267-268.)
Settlement agreements are contracts, so the “legal principles [that] apply to contracts generally apply to settlement [agreements].” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 789.) Like any contract, a settlement agreement is formed only when there is a mutual consent—that is, when “the parties all agree upon the same thing in the same sense.” (Ibid.; Civ. Code, § 1580.) This is evaluated objectively by looking to “the parties’ outward manifestations.” (Monster Energy, at p. 789; Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811; Birdsall v. Helfet (2025) 113 Cal.App.5th 558, 569 (Birdsall).) If the objective evidence establishes that the parties mutually agreed upon the same thing in the same sense and thus formed a contract, then subsequent squabbles over how to reduce that mutual agreement to writing do not vitiate that contract. (CSAA Ins. Exchange v. Hodroj (2021) 72 Cal.App.5th 272, 276 (CSAA); J.B.B. Investment Partners Ltd. v. Fair (2019) 37 Cal.App.5th 1, 12.) But if the objective evidence establishes that a party’s offer was met with “a qualified acceptance [that] amounts to a new proposal or counteroffer,” then the original offer was rejected and no contract is formed. (Apablasa v. Merritt & Co. (1959) 176 Cal.App.2d 719, 726-727; Panagotacos v. Bank of America (1998) 60 Cal.App.4th 851, 855-856; R.W.L. Enterprises v. Oldcastle, Inc. (2017) 17 Cal.App.5th 1019, 1032; see Civ. Code, § 1585 [“an acceptance must be absolute and unqualified . . . . A qualified acceptance is a new proposal.”].)
We independently agree with the trial court that the objective evidence in this case shows that Ortiz (through his insurer, Infinity) and plaintiffs did not mutually agree upon the
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“same thing in the same sense.” Plaintiffs’ initial settlement offers to Infinity contemplated only a settlement and release for Ortiz; by the terms of those offers, plaintiffs were willing to accept the $30,000 policy limits if Ortiz indicated that he had no other assets worth pursuing (which is why the offers required him to attest that he had no more than $200,000 in assets) and if he attested he was not driving within the course and scope of any employment (which if he was, would have allowed plaintiffs to pursue a deeper-pocket defendant) . Infinity’s acceptance was contingent upon a release as to Ortiz and his stepfather. Because plaintiffs’ offers objectively contemplated settlement and release only as to Ortiz, Infinity’s response demanding settlement and release as to an additional individual was a “qualified acceptance” that added a new term and thus constituted a rejection of plaintiffs’ offers as well as a counteroffer (that plaintiffs rejected).
Ortiz makes what boils down to two further arguments. First, he argues that plaintiffs’ offers contemplated that Ortiz might request a release and acceded to “a release that [Infinity] require[d] to be signed”—without any limitation on the nature of that release. Thus, Ortiz argues, this provision was effectively a blank check that allowed him to seek a release for anyone. We reject this argument because it ignores the other terms of the offers, which are keyed to an assessment of possible recovery (less than $200,000) versus settlement—and tied them solely to Ortiz.
Second, Ortiz argues that precedent dictates a ruling in his favor—and, in particular, CSAA, supra, 72 Cal.App.5th 272 and Birdsall, supra, 113 Cal.App.5th 558. To be sure, each case deals with the factual scenario of whether a squabble over the terms of
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a release vitiates an earlier settlement that contemplated the execution of a release. But the cases are otherwise distinguishable. In CSAA, the court held that a release that sought protection from future claims for bodily injury and property damage did not vitiate an earlier settlement regarding bodily injury claims—the addition of the property damage in the release did not upset the settlement as to bodily injury damage. (CSAA, at pp. 274-275.) Here, by contrast, Ortiz made his acceptance contingent upon the release of his stepfather as well as himself, which precluded a settlement as to Ortiz himself. In Birdsall, the court held that a release that contained an error (because it named the plaintiff as a releasor rather than a releasee) did not vitiate an earlier settlement. (Birdsall, at pp. 569-571.) Here, by contrast, the release Ortiz submitted as part of his purported acceptance was no mistake; instead, it was a calculated demand to expand the scope of the release and the underlying settlement to which it was attached.
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DISPOSITION
The judgment is affirmed. Nissan is entitled to its costs on appeal as to plaintiffs’ appeal; plaintiffs are entitled to costs on appeal as to Ortiz’s appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, P. J. HOFFSTADT
We concur:
_________________________, J. BAKER
_________________________, J. MOOR