TRC Operating Co. v. Chevron USA, Inc.

Filed 6/21/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

TRC OPERATING COMPANY, INC., et al.,

F083724

Plaintiffs, Cross-defendants and Appellants,

(Super. Ct. No. S1500-CV-

v. 282520_JEB)

CHEVRON USA, INC.,

OPINION

Defendant, Cross-complainant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. David R.

Lampe, Judge.

Quinn Emanuel Urquhart & Sullivan, Sara L. Pollock, Kathleen M. Sullivan,

Christopher Tayback, Scott L. Watson, B. Dylan Proctor, Valerie Lozano, Dylan C.

Bonfigli for Plaintiffs, Cross-defendants and Appellants.

Horvitz & Levy, John F. Querio, Jeremy B. Rosen, Andrea L. Russi, Christopher

D. Hu; Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Marcellus A. McRae,

Thomas A. Manakides, Blaine H. Evanson; Bright and Brown, James S. Bright, Maureen

J. Bright, and Kristin G. Taylor for Defendant, Cross-complainant and Appellant.

-ooOoo-

TRC Operating Co., Inc. and TRC Cypress Group, LLC (collectively TRC) and

Chevron U.S.A., Inc. (Chevron) are oil producers operating adjacent well fields they own

or lease in Kern County, west of Taft. Both companies pump from a shared underground

oil reservoir, commonly known as Midway-Sunset oil field, and both engage in a process

referred to as “cyclic steaming” to make the extraction process more efficient. This

process involves injecting high-pressure steam down a wellbore, which then both

fractures the surrounding rock and makes the oil contained in that rock less viscous,

making the oil easier to pump out.

In 1999, a “surface expression” formed near a particular Chevron well, known as

Well 20. A surface expression occurs when the steaming of the wells causes a lateral

fracture from the wellbore, and thus allows oil and other effluent to escape from the

wellbore and seep to the surface. Despite Chevron’s attempts at remediation, in the

summer of 2011 an eruption occurred in the area of the Well 20 surface expression,

shooting pressurized steam and oil into the air, like a geyser. This eruption also caused a

sinkhole to form, which killed a Chevron employee. Similar eruptions followed over the

succeeding months, and the state oil and gas regulator—the Division of Oil, Gas and

Geothermal Resources (DOGGR)1—issued various orders preventing steaming in the

area of the Well 20 surface expression. These orders encompassed land that was leased

or owned by Chevron as well as TRC. These shutdown orders lasted four years.

TRC sued Chevron, claiming Chevron’s negligent maintenance and operation of

its property for many years led to dangerous conditions which made it unsafe to perform

cyclic steaming operations. These conditions led to the DOGGR shut-down orders, and

to TRC’s harm and damages. Chevron countersued, claiming TRC’s failure to

1 DOGGR is now known as the California Geologic Energy Management Division,

colloquially called “CalGEM.” Since the parties and witnesses largely refer to this

regulatory agency using its prior acronym, DOGGR, we will do so as well.

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adequately maintain its own wells was the cause of the surface expression, the 2011

eruptions, and damages suffered by Chevron.

The case proceeded to a jury trial in 2021. TRC argued Chevron was the sole

cause of TRC’s cessation of steaming operations from 2011 to 2015. Chevron argued

TRC stopped steaming operations solely because of the DOGGR shut-down orders,

which were therefore a superseding cause of any harm suffered by TRC. Chevron also

argued TRC was the cause of Chevron’s harm because it negligently maintained and

operated its steaming processes over the years. The jury found in favor of TRC,

awarding approximately $120 million in damages against Chevron. Nothing was

awarded to Chevron.

Chevron filed motions for a new trial and for judgment notwithstanding the verdict

(JNOV). The trial court denied the JNOV, but granted a new trial based on misconduct

by Juror No. 10, because he failed to disclose (1) a 40-year-old criminal conviction which

would have rendered him ineligible to serve as a juror, because he should have registered

as a sex offender and (2) his status as a party to a personal injury lawsuit nine years

earlier. TRC appeals the granting of this motion, arguing Juror No. 10 was not ineligible,

because the criminal statute under which he was likely required to register as a sex

offender was not listed in the juror eligibility statute. TRC also argues no prejudice

resulted from the juror’s failure to disclose his prior criminal conviction or the previous

civil lawsuit. We agree with both arguments.

We interpret the juror eligibility statute to mean that Juror No. 10’s out-of-state

conviction did not make him ineligible. Also, on the question of prejudice to Chevron,

we conclude the trial court used an improper definition of bias in determining prejudice

was established. To remedy this legal error, we conduct a de novo review of the record

and apply the appropriate definition of bias. Under the circumstances, we conclude Juror

No. 10’s failure to disclose the prior court cases in which he was involved did not show

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bias against Chevron or for TRC or bias as to any issue presented to the jury.

Alternatively, assuming he was statutorily ineligible, we also would conclude his

concealment of information was not prejudicial to Chevron. Accordingly, we reverse the

grant of a new trial.

Chevron also filed a protective cross-appeal, in the event we found against it on

TRC’s appeal. Chevron appealed the denial of its JNOV, arguing that both factually and

as a matter of law, DOGGR’s orders to stop steaming were the superseding cause of any

harm suffered by TRC and precludes it from bearing any liability. We conclude

sufficient evidence was introduced to sustain the verdict, demonstrating TRC did not stop

any of its steaming operations solely because of the DOGGR orders, which were

therefore not a superseding cause. We also reject Chevron’s claims that (1) the jury

instructions on causation were erroneous; (2) the damages awarded were excessive

because TRC failed to prove or apportion the amount of damages attributable to Chevron,

as distinguished from the amount attributable to the DOGGR orders; and (3) the verdict

form lacked critical factual findings necessary for the jury to award prejudgment interest.

We reverse the trial court’s order granting a new trial, and remand with

instructions to reinstate the judgment against Chevron.

FACTS

Much of this case relates to a surface expression near Chevron’s Well 20. Well 20

was located near the property line between Chevron and TRC, and was a non-operational

well that was severely damaged. The first surface expressions formed around Well 20 in

1999, followed shortly thereafter by the first “high energy event”—Chevron’s expert

explained this meant an eruption of pressurized steam “shoot[ing] up into the air 30, 40,

50 feet like a geyser”—which occurred in February 2000. The current Well 20 surface

expression which formed much of the factual predicate for this case originated in July

2007.

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Chevron first attempted to manage the Well 20 surface expression by using an

earthen berm with netting over top of it, and a mechanical pump. Chevron also attempted

to “reabandon”2 Well 20 by pouring cement into it, which failed again to seal off Well

20. Additionally, because of the persistent nature of the Well 20 surface expression,

Chevron adopted a policy of not steaming other wells within a 300-foot, and then 500-

foot, radius in February 2008 and July 2010.

TRC introduced evidence that the cause of the surface expression was Chevron’s

failure to appropriately abandon its nearby wells. In particular, TRC pointed to Well 20,

which was known to be a damaged well that had to be reabandoned after initial attempts

to abandon it failed, allowing steam and oil from other nearby wells to travel at least

partially up the wellbore and into the surrounding upper layers of the earth. However,

Chevron failed to perform the necessary work on Well 20 in the years prior to the June

2011 eruptions that formed the crisis point in this case. Additionally, Well 202 and Well

H235, both owned by Chevron and in the immediate vicinity of Well 20, were

inappropriately maintained and/or abandoned, and likely contributed to the Well 20

surface expression. Chevron also attempted to reabandon Wells 202 and H235 at various

points, again indicating they were not appropriately abandoned initially.

In October 2010, DOGGR ordered Chevron to fix the Well 20 surface expression.

In response, Chevron installed a “French drain” in April 2011, which aimed to eliminate

the visibility of the surface expression by collecting the fluids and seep in an underground

container which could then be pumped up and taken away. The French drain was not

designed to eliminate the problems that caused the surface expression in the first place,

2 “Abandoning” a well refers to the process of sealing off a well that was previously

drilled, so that it does not become an unintended ventilation hole for steam that is injected

in other, nearby wells. Sometimes that process is unsuccessful for various reasons,

leading to what the parties referred to as “reabandonment” of the well, which involves

additional attempts to seal off the previously drilled well.

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but instead to capture the surface expression close to but below the surface, so that it

could not be seen with the naked eye. While French drains often are used to dissipate

fluid back into the ground, this one was designed to allow the fluid to be pumped out

instead of dissipated.

The French drain did not apparently resolve the problems with Well 20.3 A few

months after its installation, in June and July 2011, steaming in the area of Well 20

caused several explosions or eruptions in the vicinity of the Well 20 surface expression,

as well as the opening of a sinkhole which killed one Chevron employee.4 Witnesses

testified seeing a “volcano-like eruption” spewing hot steam out of the area. Chevron

had begun steaming Well H235 immediately before these eruptions, which TRC linked to

the eruptions because Well H235 was itself damaged and had up to this point been on an

internal “do-not-steam” list maintained by Chevron.

Following these eruptions and the death on Chevron’s property, in July 2011,

DOGGR began issuing orders to curtail the use of cyclical steaming in the vicinity of

Well 20.5 In August 2011, two new surface expressions appeared in the vicinity of Well

20, and additional eruptions occurred, which caused TRC to stop steam injection on its

property that was near Well 20 as well. The eruptions and surface expressions occurring

on Chevron’s property during summer 2011 also caused seep and other fluids to flow

onto TRC’s property. Following the eruptions, TRC stopped steaming approximately 65

percent of its wells for “safety reasons,” tested its wells to ensure they were not the cause

3 The French drain was ultimately removed on or about June 14, 2012.

4 The death of the Chevron employee was subject to a motion in limine filed by

Chevron, and the jury was not told of his death, which was instead simply referred to as

an “industrial incident.”

5 These orders, which ultimately banned steaming anywhere within 800 feet of the

Well 20 surface expression for a period of approximately four years, are generally

referred to throughout as the “DOGGR orders.”

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of the surface expressions, and took remedial actions to contain the surface expressions

that were emerging. TRC did not resume steaming until July 2015.

PROCEEDINGS

In July 2014, TRC initiated this litigation by filing a complaint for damages in the

Kern County Superior Court alleging claims for negligence, private nuisance, and strict

liability against Chevron. Chevron demurred and in December 2014, the trial court

sustained the demurrer and issued a stay based on the doctrine of primary jurisdiction,

because related proceedings were then pending before DOGGR. The case remained

stayed for two years, until the court granted TRC’s motion to lift the stay in December

2016 and granted TRC leave to amend. An amended complaint was later filed, adding a

claim for trespass and making other changes. In May 2017, Chevron filed a cross-

complaint for negligence, trespass, nuisance, and declaratory relief.

In November 2020, TRC filed its operative second amended complaint.

Chevron’s answer included a general denial and several affirmative defenses, one of

which alleged the DOGGR orders were the superseding cause of any damages suffered

by TRC.

After extensive discovery and litigation, the case proceeded to trial in July 2021.

The case was submitted to the jury on Friday, September 17, 2021, with the jury

returning a general verdict the following Monday, finding 11-1 that TRC had proven its

claims against Chevron. The jury awarded $73,039,191 to compensate TRC for the harm

caused by Chevron and found TRC was entitled to prejudgment interest. The jury found

11-1 against Chevron on its counterclaims against TRC.

Chevron timely filed motions for JNOV and a new trial. Chevron’s motion for

new trial was supported by declarations and a request for judicial notice of court

documents in cases involving Juror No. 10. TRC’s opposition to the motion for new trial

included declarations from nine jurors.

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Following briefing and an October 20, 2021 hearing, the trial court filed a written

ruling concluding the evidence adequately supported the jury’s verdict as to both the

amount of damages and causation and denying Chevron’s motion for JNOV. The ruling

also addressed Chevron’s five grounds for a new trial. The court granted a new trial,

finding Juror No. 10 had committed misconduct by failing to disclose his involvement in

a prior civil court case and, most importantly, a felony sexual offense case from 1982.

The court considered and rejected the alternate grounds for a new trial, determining

sufficient evidence supported the jury’s findings regarding causation and the amount of

damages for the same reasons it denied the motion for JNOV. The court also determined

Chevron’s claims about instructional error and false testimony by TRC witnesses did not

warrant a new trial.

The trial court’s ruling also addressed TRC’s motion for a determination of the

amount of prejudgment interest. The ruling set forth an analysis of the evidence and legal

issues and the court’s agreement with TRC’s calculation of prejudgment interest in the

amount of $47,456,101. As instructed by the ruling, on October 26, 2021, the clerk of

court entered judgment for just over $120 million. The ruling also stated: “After entry of

the judgment, the court denies the Motion for JNOV, and grants the Motion for New

Trial for the reasons herein stated.” This unusual sequence was adopted because the trial

judge was retiring.

In November 2021, TRC filed a motion to reconsider the grant of Chevron’s

motion for a new trial. The motion was supported by a declaration from a juror whose

declaration had not been included in TRC’s papers opposing Chevron’s motion for a new

trial. The court granted TRC’s motion for reconsideration, considered TRC’s new

evidence, but ultimately affirmed its earlier ruling. TRC timely appealed, and Chevron

filed a protective cross-appeal.

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DISCUSSION

I. THE MOTION FOR A NEW TRIAL WAS ERRONEOUSLY GRANTED

A. Basic Legal Principles

1. Motions for New Trial

A verdict may be vacated and a new trial granted for an “[i]rregularity in the

proceedings of the court, jury or adverse party” that prevents any party from having a fair

trial or for “[m]isconduct of the jury; and … such misconduct may be proved by the

affidavit of any one of the jurors.” (Code Civ. Proc., § 657, subds. 1, 2.)6 A new trial is

authorized only if the irregularity or misconduct materially affected the substantial rights

of the moving party (§ 657)—that is, it must be prejudicial. One practice guide states that

when 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. (3 Fairbank, et al., Cal. Practice Guide: Civil Trials and

Evidence (The Rutter Group 2023) ¶ 18:140.1, p. 18-39.) The test for prejudice is

whether there is a reasonable probability that a result more favorable to the moving party

would have been obtained in the absence of the juror misconduct. (Bandana Trading

Co., Inc. v. Quality Infusion Care, Inc. (2008) 164 Cal.App.4th 1440, 1445; see Soule v.

General Motors Corp. (1994) 8 Cal.4th 548, 570 [error is harmless if it is not reasonably

probable moving party would have obtained a more favorable result in its absence];

Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417 (Hasson) disapproved on other

grounds by Soule v. General Motors Corp. (1994) 8 Cal.4th 548 [in juror misconduct

case, reasonable probability standard applied].)

6 Subsequent undesignated statutory references are to the Code of Civil Procedure.

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2. Standards of Review

The proper standard or standards of review applicable to the trial court’s order

granting the motion for new trial based on juror misconduct is disputed by the parties.

TRC contends orders granting a new trial generally are reviewed for an abuse of

discretion but any trial court determination underlying such an order is reviewed under

the standard or test appropriate for the type of issue resolved by that determination. In

particular, TRC contends (1) findings resolving issues of fact are reviewed under the

substantial evidence standard, (2) interpretations and applications of statutes and

decisional law resolve issues of law and are reviewed under the de novo standard, and (3)

the determination that prejudice arose from juror misconduct presents a mixed question

of law and fact subject to independent review on appeal.

Chevron recognizes the general rule that the abuse of discretion standard applies to

orders granting a new trial and contends an abuse occurs only if the grant is so irrational

and arbitrary that no reasonable person could agree with it. Furthermore, Chevron

contends that this traditional rule prevents the reviewing court from substituting its

judgment for a trial court’s determination that an error or irregularity was prejudicial, and

that great deference is afforded orders granting new trials on the ground of juror

misconduct. Chevron states “TRC is correct that certain statutory interpretation questions

are subject to de novo review,” but asserts “the new trial order can be affirmed based on

the trial court’s factual findings and exercise of discretion alone.”

Initially, we note that the parties have cited People v. Ault (2004) 33 Cal.4th 1250

and Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 (Aguilar), which refer to the

abuse of discretion standard. After Ault and Aguilar were issued, our Supreme Court

provided the following clarification of the abuse of discretion standard of review:

“The abuse of discretion standard is not a unified standard; the deference it

calls for varies according to the aspect of a trial court’s ruling under review.

The trial court’s findings of fact are reviewed for substantial evidence, its

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conclusions of law are reviewed de novo, and its application of the law to

the facts is reversible only if arbitrary and capricious.” (Haraguchi v.

Superior Court (2008) 43 Cal.4th 706, 711–712 (Haraguchi); see Vosburg

v. County of Fresno (2020) 54 Cal.App.5th 439, 460 (Vosburg); County of

Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 316 [abuse of discretion

standard is not unified; a more specific rule might apply once the appellate

court has identified the particular aspect of the trial court’s determination

being challenged].)7

In Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606 (Lee), this court

referred to Aguilar and Ault and concluded those cases established the principle that

“when we apply the abuse of discretion standard in an appeal from an order granting a

new trial, ‘any determination underlying any order is scrutinized under the test

appropriate for such determination.’ ” (Lee, supra, at p. 623, quoting Aguilar, supra, 25

Cal.4th at p. 859.) This principle is consistent with Haraguchi, and we conclude it

applies in this appeal from the order granting Chevron a new trial.

The three standards of review identified in Haraguchi do not cover in detail the

full variety of determinations made by a trial court. The first two standards—substantial

evidence review of findings of fact and de novo review of questions of law—are

commonly applied. For example, in Vosburg, this court recognized the abuse of

discretion standard applied to decisions on motions for attorney fees under section 1021.5

and acknowledged that, under the description of an abuse of discretion set forth in

Haraguchi, legal conclusions are reviewed de novo and findings of fact are reviewed for

substantial evidence. (Vosburg, supra, 54 Cal.App.5th at p. 460.)

The third category of trial court determinations, which Haraguchi described as the

“application of the law to the facts” (Haraguchi, supra, 43 Cal.4th at p. 712), can be

7 The clarification provided in Haraguchi addressed without referencing Justice

Wiener’s criticism of the abuse of discretion standard as “so amorphous as to mean

everything and nothing at the same time and [as] virtually useless as an analytic tool.”

(Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1022, disapproved

on another ground in Shamblin v. Brattain (1988) 44 Cal.3d 474, 479, fn. 4.)

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divided into recognized subcategories. In Vosburg, we stated that, in some

circumstances, the application of the statute’s criterion to the facts could present a mixed

question of law and fact. (Vosburg, supra, 54 Cal.App.5th at p. 460.) We concluded that

if factual questions predominate, a deferential standard of review applies and,

alternatively, if the material facts are largely undisputed, the mixed question is treated as

a question of law subject to de novo review. (Ibid.; see Aguilar, supra, 25 Cal.4th at pp.

860–861 [de novo review applies where the issue is purely or “predominately one of

law”].) Our Supreme Court has explained how to differentiate between mixed questions

of law and fact by stating:

“Mixed questions of law and fact concern the application of the rule to the

facts and the consequent determination whether the rule is satisfied. If the

pertinent inquiry requires application of experience with human affairs, the

question is predominantly factual and its determination is reviewed under

the substantial-evidence test. If, by contrast, the inquiry requires a critical

consideration, in a factual context, of legal principles and their underlying

values, the question is predominantly legal and its determination is

reviewed independently.” (Crocker National Bank v. City and County of

San Francisco (1989) 49 Cal.3d 881, 888.)

The last type of trial court determination that requires the application of the law to

the facts involves a statute or rule of law that commits a particular issue to the court’s

discretion and requires the court to weigh various factors and choose from a range of

possible outcomes. (In re Marriage of Knox (2022) 83 Cal.App.5th 15, 25; see Bank of

America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1089 [abuse of discretion

standard measures whether act of lower tribunal falls within permissible range of options

set by the legal criteria].) This standard does not apply in this appeal and, consequently,

we need not describe it in detail.

To summarize, when a trial court grants a motion for new trial, we conclude the

following standards of review apply to the various determinations made. Findings of fact

and mixed questions of law and fact where factual questions predominate are reviewed

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under the substantial evidence standard. The resolution of pure questions of law and

mixed questions of law and fact that are predominantly legal are subject to de novo

review. (Aguilar, supra, 25 Cal.4th at pp. 860–861; Lee, supra, 5 Cal.App.5th at p. 624

[de novo standard of review applied to determination of jury instructions’ correctness].)

Part I.E. of this opinion explains why the de novo standard of review applies to whether

the juror misconduct was prejudicial.

B. Trial Court’s Determinations Relating to Juror Misconduct

1. The Finding of Misconduct

The trial court determined jury misconduct occurred because Juror No. 10 (1) was

statutorily ineligible to serve as a juror and (2) had deliberately concealed information in

answering the juror questionnaire. These grounds are not completely separate because

some undisclosed information related to his eligibility for jury service.

Concerning the first, the court found Juror No. 10 had previously been convicted

of the crime of “indecent liberties” with a minor in Washington State in the 1980s and

concluded he was required by California law to register as a sex offender when he moved

here. The court also concluded he was ineligible to serve as a juror under Code of Civil

Procedure section 203, which prohibits those required to register as a sex offender under

Penal Code section 290 from serving as jurors.

Concerning the second, the court found Juror No. 10 had not disclosed this prior

conviction on his questionnaire in response to the directive “If you have ever been to

court for any reason (excluding divorce[)], please explain,” and this failure to disclose

information constituted misconduct. Addressing Juror No. 10’s subjective state of mind,

the trial court found he was of competent mind despite his age, he failed to answer the

question honestly “to avoid embarrassment,” any claim that he did not understand the

question was a pretext, and he did not forget or inadvertently fail to disclose the

information. The court noted: “No one forgets such serious charges.”

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The court also found Juror No. 10 had been a party to his spouse’s personal injury

suit, in which he pursued his own claim for loss of consortium, and he failed to honestly

respond when he left a blank answer to the question asking, “[i]f you or anyone close to

you has ever made a claim for money damages, explain.” The trial court found the

failure to disclose the truthful answers to the inquiries was willful and deliberate, and

therefore constituted misconduct. As a result, the court proceeded to the question of

whether the two instances of misconduct were prejudicial.

2. Trial Court’s Prejudice Determination

The trial court’s October 2021 ruling addressed prejudice by reiterating its

findings that Juror No. 10’s nondisclosures were deliberate and its disbelief of the

assertion in his declaration that he did not understand the questions. The ruling included

the court’s findings that Juror No. 10 refused to follow the court’s instructions; he played

a large role in jury deliberations by being loud and opinionated; he intimidated another

juror from freely discussing the conduct of TRC in causing damages; and he was

otherwise ineligible. After setting forth these findings, the ruling stated: “Was he

biased? The court is here confronted with an obstinate, untruthful, obstreperous,

contemptuous, ineligible and entitled juror, refusing the orders of the court, who was

loud, opinionated and intimidating in jury deliberations, and whose participation

influenced the outcome.” A footnote to this sentence stated: “The court cannot divorce

the court’s conclusion that the juror was ineligible from its evaluation [of prejudice].”

The court then addressed TRC’s arguments about the absence of juror bias and the

inability to demonstrate prejudice in a civil case where the jury verdict was 11 to one.

After rejecting those arguments, the court granted Chevron’s motion for a new trial on

the ground of prejudicial juror misconduct.

The trial court’s reasoning was explained further in its December 2021 order on

TRC’s motion for reconsideration. The court stated the issue “presented is by what

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standard does the court determine prejudice from juror misconduct in a civil case, when

the misconduct is intentionally undisclosed facts rendering the juror ineligible and

unqualified, when there is no actual misconduct during deliberations, and when there is a

sufficient vote of at least nine qualified jurors in favor of the verdict.” The court stated it

was a close question and reasonable minds could differ on the impact of Juror No. 10’s

conduct. The court was convinced that his prominent participation in the jury

deliberations was sufficient to infect the verdict and the integrity of the trial. As a result,

the court confirmed its order granting a new trial. The court acknowledged the

importance of the eligibility question to its conclusion by stating that “if this court is

wrong that the revealed facts render the juror legally ineligible, then the motion for new

trial should be denied.”

C. Juror No. 10 Was Not Statutorily Ineligible to Serve as a Juror

Our analysis of juror misconduct and prejudice begins with whether Juror No. 10

was ineligible to serve as a juror. This question involves the interpretation and

application of Code of Civil Procedure section 203 and the Penal Code provisions

governing the registration of sex offenders. There is no dispute about the underlying

facts of Juror No. 10’s prior conviction. As a result, the interpretation and application of

section 203 presents a pure question of law subject to de novo review. (See Aguilar,

supra, 25 Cal.4th at pp. 860–861; Lee, supra, 5 Cal.App.5th at p. 624.)

The court’s mission in statutory interpretation is to give effect to the command of

the Legislature and interpret the Legislature’s intention in enacting the statute in the

manner it did. (§ 1859 [“In the construction of a statute the intention of the Legislature

… is to be pursued”]; People v. Cruz (1996) 13 Cal.4th 764, 782 [“[T]he fundamental

goal of statutory interpretation is to ascertain and carry out the intent of the

Legislature.”]; City of Chula Vista v. Drager (2020) 49 Cal.App.5th 539, 560

[“ ‘ “ ‘When we interpret the meaning of statutes, our fundamental task is to ascertain the

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aim and goal of the lawmakers so as to effectuate the purpose of the statute.’ ” ’ ”].) The

Legislature has noted our role in statutory construction is “simply to ascertain and declare

what is in terms or in substance contained therein, not to insert what has been omitted, or

to omit what has been inserted.” (§ 1858.) Accordingly, courts first look at the statute’s

words, giving them their usual, ordinary meaning because those words, having run the

legislative gauntlet, are generally the most reliable indicator of legislative intent.

(Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 239.)

When the statutory language, standing alone, is clear and unambiguous—that is, it

has only one reasonable construction—courts usually adopt the plain or literal meaning of

that language. (Honchariw v. County of Stanislaus (2013) 218 Cal.App.4th 1019, 1027.)

The plain meaning rule is subject to exceptions. (Ibid.; Switzer v. Wood (2019) 35

Cal.App.5th 116, 129; see Davis Boat Manufacturing-Nordic, Inc. v. Smith (2023) 95

Cal.App.5th 660, 673 [where a party contends a latent ambiguity exists, a court may not

simply adopt a literal construction and end its inquiry].) The exceptions apply when

adopting the literal meaning of the statutory text “would (1) produce absurd

consequences that the Legislature clearly did not intend or (2) frustrate the manifest

purposes that appear from the provisions of the legislation when considered as a whole in

light of its legislative history.” (Merced Irrigation Dist. v. Superior Court (2017) 7

Cal.App.5th 916, 924; Honchariw, supra, at p. 1027; see also, Arias v. Superior Court

(2009) 46 Cal.4th 969, 979 [nonliteral construction of Prop. 64 adopted based on

evidence of underlying purpose and voter intent]; Bob Jones University v. United States

(1983) 461 U.S. 574, 586 [a well-established canon of statutory construction provides

that literal language should not defeat the plain purpose of the statute]; Provigo Corp. v.

Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 567 [plain meaning of

constitutional provision rejected to avoid absurdity].)

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Alternatively, when the statutory language is ambiguous, a court’s primary goal is

to adopt the interpretation that best effectuates the legislative intent or purpose.

(Martinez v. City of Clovis, supra, 90 Cal.App.5th at p. 239.) “To identify a statute’s

purpose and the underlying legislative intent, courts may look to such aids as legislative

history, the maxims of statutory construction, and the consequences of a particular

interpretation, including its impact on public policy.” (Ibid.)

1. The Juror Eligibility Statute

The language of the juror eligibility statute is relatively straightforward.

California starts with the presumption that every person is eligible to serve as a juror.

(§ 203, subd. (a).) The statute then sets out a list of exceptions, stating, as relevant to this

case, “[a]ll persons are eligible and qualified to be prospective trial jurors, except …

[p]ersons who are currently required to register as a sex offender pursuant to Section 290

of the Penal Code based on a felony conviction.” (§ 203, subd. (a)(11).) Here, the parties

dispute whether this provision should be interpreted as encompassing only those subject

to registration pursuant to Penal Code section 290, which Juror No. 10 was not, or should

be interpreted more expansively to include all those subject to a registration requirement

pursuant to Penal Code sections 290 to 290.024. These Penal Code sections are known

as the Sex Offender Registration Act and we consider them next.

2. Sex Offender Registration Requirements

Penal Code section 290 mandates that “[e]very person described in subdivision

(c), for the period specified in subdivision (d) while residing in California, or while

attending school or working in California,” shall register with the local chief of police or

sheriff, as well as the chief of police of any state university campus. (Pen. Code, § 290,

subd. (b).) This registration shall occur within “five working days” of coming to or

changing one’s residence to California. (Ibid.) Thus, subdivision (b) creates a

registration requirement under Penal Code section 290.

17

Subdivision (c) of Penal Code section 290 defines who must register as a sex

offender amongst those convicted of crimes under California law. In relevant part, the

provision states individuals convicted “in any court in this state or in any federal or

military court” of one of a long list of crimes “shall register.” (Pen. Code, § 290,

subd. (c)(1).) The constituent crimes which result in required registration include the

following: (1) “a violation of Section 187 committed in the perpetration, or an attempt to

perpetrate, rape”; and (2) “any act punishable” under approximately 40 separately

enumerated sections of the Penal Code, as well as “any statutory predecessor that

includes all elements of one of the offenses described in this subdivision.” (Ibid.) Also

required to register is “any person who since that date has been or is hereafter convicted

of the attempt or conspiracy to commit any of the offenses described in this

subdivision.” (Ibid.) Conspicuously absent from this list are those convicted of sexual

offenses outside of California.

Penal Code section 290, subdivision (d) sets forth the amount of time for which a

person identified in subdivision (c) must register, and is broken down into three tiers.

Specifically, “[a] person described in subdivision (c), or who is otherwise required to

register pursuant to the Act shall register for 10 years, 20 years, or life, following a

conviction and release from incarceration, placement, commitment, or release on

probation or other supervision, as follows.” (Pen. Code, § 290, subd. (d), italics added.)

The italicized language denotes that subdivision (d) sets forth the time requirements for

registration, whether the registration requirement is imposed by Penal Code section 290

or another section. So-called “tier one offenders” are required to register for a minimum

of 10 years. (Id., subd. (d)(1)(A).) “A person is a tier one offender if the person is

required to register for conviction of a misdemeanor described in subdivision (c), or for

conviction of a felony described in subdivision (c) that was not a serious or

violent felony.” (Ibid.) Tier two offenders are required to register for at least 20 years,

18

and are defined as those convicted of a limited number of enumerated offenses. (Id., §

290, subd. (d)(2)(A).) Tier three offenders are required to register for life, and include

those convicted of any number of a lengthy list of statutes. (Id., § 290, subd. (d)(3)(A)–

(R).)

Next, subdivision (d)(4) of Penal Code section 290 concerns how to categorize the

registration requirement for a person who is required to register under a separate statute,

Penal Code section 290.005, which addresses registration requirements for those

convicted of sex-related crimes outside of California. Generally, “[a] person who is

required to register pursuant to Section 290.005 shall be placed in the appropriate tier if

the offense is assessed as equivalent to a California registerable offense described in

subdivision (c).” (Pen. Code, § 290, subd. (d)(4)(A).) However, if there is no equivalent

California offense, a person required to register under Penal Code section 290.005 “shall

be subject to registration as a tier two offender,” except in certain more severe cases,

where the person can become subject to registration as a tier three offender. (Pen. Code,

§ 290, subd. (d)(4)(B).) Therefore, Penal Code section 290, subdivision (d) sets forth the

time for which a registration requirement is imposed, whether by Penal Code section 290

or another section.

A number of succeeding statutes require registration of individuals not convicted

of California crimes, such as those civilly committed as sexually violent predators (Pen.

Code, § 290.001); those found not guilty by reason of insanity for registerable crimes

(id., § 290.004); and most pertinent to this case, individuals convicted of certain crimes

outside California (id., § 290.005). Penal Code section 290.005, subdivision (a) requires

any person “convicted in any other court, including any state,

federal, or military court, of any offense that, if committed or attempted in this state …

would have been punishable as one or more of the offenses described in subdivision (c)

of Section 290” to register as a sex offender. Whether an out-of-state conviction would

19

have been punishable as a registrable California offense is based on either (1) “the

elements of the convicted offense”; (2) “facts admitted by the person”; (3) “facts …

found true by the trier of fact”; or (4) “stipulated facts in the record of military

proceedings.” (Ibid.) Also required to register are people ordered to do so by any other

court, “if the court found at the time of conviction or sentencing that the person

committed the offense as a result of sexual compulsion or for purposes of sexual

gratification.” (Pen. Code, § 290.005, subd. (b).) The statute also generally mandates

that people register if they “would be required to register while residing in the state of

conviction.” (Id., § 290.005, subd. (c).) However, there are a number of exceptions to

this last requirement, and a person required to register in the state of conviction is not

required to register in California for certain crimes, unless the out-of-

state offense “contains all of the elements of a registerable California offense described in

subdivision (c) of Section 290.” (Id., § 290.005, subd. (d).)

To summarize this lengthy statutory scheme, Penal Code section 290, subdivision

(b) sets a registration requirement; Penal Code section 290, subdivision (c) defines the

California statutes for which a conviction will require registration; and Penal Code

section 290, subdivision (d) sets the amount of time for which registrants—regardless of

which statute imposes the requirement—must register. Generally, registration is required

for 10 years for those convicted of misdemeanors and certain felonies that are neither

serious nor violent, 20 years for those convicted of a limited number of felonies, and life

for those convicted of the majority of felonies. One may also be required to register in

certain circumstances even if not convicted of the enumerated California crimes, and

Penal Code section 290.005 requires people who were not convicted under California’s

Penal Code to register, if they were convicted of certain out-of-state crimes. Out-of-state

crimes must be analyzed against California statutes to determine whether they would

qualify, considering their elements and/or the facts admitted or established in the

20

proceeding. The length of time for which a person with an out-of-state conviction must

register varies, but also relies upon a comparison with relevant California statutes and the

crime of conviction, including its statutory elements and/or admitted or established facts.

3. Application of Statutory Scheme to Juror No. 10

With this statutory backdrop, we interpret the juror eligibility statute and apply

that interpretation to the facts of this case. It is undisputed Juror No. 10 was not required

to register as a sex offender pursuant to section 290 of the Penal Code. For purposes of

this appeal only, we assume he was required to register as a sex offender pursuant to

section 290.005 of the Penal Code. This assumption is based on his prior conviction for

“indecent liberties” with a minor under Washington Revised Code,

section 9A.44.100(1)(b) in 1982.

The trial court reviewed the Washington statute, as it existed at the time of

conviction, which essentially criminalized “sexual contact with a minor for sexual

gratification.” Juror No. 10 pleaded guilty, and in doing so admitted he had “sexual

contact” with a minor in December 1981 or January 1982. A clinical psychologist’s

report reflected Juror No. 10 had self-reported “that the abuse occurred approximately

once a week for four months.” The Washington court sentenced Juror No. 10 to a 10-

year deferred sentence, 90 days in jail, and outpatient therapy. No registration was then

required because Washington did not enact mandatory sex offender registration until

1990. Juror No. 10 was released from probation after five years upon a psychologist’s

recommendation, and the Washington court allowed him to withdraw the finding of

“guilty” and enter a plea of “not guilty,” and thereafter dismissed the case, in March

1987.

The trial court concluded Juror No. 10, who had apparently not registered as a sex

offender within California, was required to register pursuant to Penal Code

21

section 290.005.8 The trial court reviewed the statutory elements of Washington Revised

Code, section 9A.44.100(1)(b), compared them to the 1982 version of Penal Code section

288, considered the factual bases Juror No. 10 acknowledged in the psychologist’s report,

and concluded Juror No. 10 would have violated Penal Code section 288, had the crime

occurred in California. Conviction under Penal Code section 288 would have required

registration as a sex offender under Penal Code section 290. Accordingly, the court

concluded Juror No. 10 was required to register as a sex offender pursuant to Penal Code

section 290.005.

The trial court referred to Penal Code section 290, subdivision (a), which states in

full: “Sections 290 to 290.024, inclusive, shall be known, and may be cited, as the Sex

Offender Registration Act. All references to ‘the Act’ in those sections are to the Sex

Offender Registration Act.” The court then stated: “Penal Code section 290.005

provides that persons convicted of qualifying crimes out-of-state ‘shall register in

accordance with the Act.’ Section 203 ineligibility includes persons registrable under

section 290.005.” Thus, the court interpreted the ineligibility provision of section 203,

subdivision (a)(11) to apply to anyone who must register under the Sex Offender

Registration Act. In short, the court adopted a nonliteral interpretation of section 203 by

8 The parties do not dispute this determination. Rather than deciding the question,

we assume for purposes of this appeal that registration was required, but note the trial

court’s determination is not indisputable. Juror No. 10 received a deferred sentence and,

after completion of a term of probation, was allowed to change his plea to “not guilty,”

after which the case was dismissed. It could be argued this is not equivalent to Juror No.

10 being “convicted” within the meaning of Penal Code section 290.005. Because the

collateral consequences of being required to register as a sex offender are significant, and

Juror No. 10 is not a party to this proceeding, we express no opinion as to whether Juror

No. 10 is required to register under Penal Code section 290.005. Any purported decision

on that point would not be binding on Juror No. 10 in a subsequent proceeding, given the

due process concerns implicated by his absence here.

22

substituting the entire Sex Offender Registration Act for the Legislature’s reference to

Penal Code section 290.

Section 203, the juror eligibility statute, requires three elements for a person to be

ineligible to serve as a juror based on a sex offender registration: a person must (1)

“currently” be; (2) “required to register as a sex offender pursuant to Section 290 of the

Penal Code”; (3) “based on a felony conviction.” (§ 203, subd. (a)(11).) The use of

“currently” means the ineligibility provision does not reach a person previously required

to register as a sex offender pursuant to Penal Code section 290, but no longer required to

do so. The phrase “based on a felony conviction” means the provision does not

disqualify from service a person required to register under Penal Code section 290 due to

a misdemeanor conviction. Thus, a portion of the persons clearly required to register by

Penal Code section 290—certain persons convicted of misdemeanors—are not ineligible

to serve as jurors. (See Pen. Code, § 290, subd. (d)(1)(A) [noting those convicted of

eligible misdemeanors are required to register for 10 years].) Lastly, the language refers

only to persons required to register as a sex offender under Penal Code section 290. This

wording does not reach persons required to register under other Penal Code sections.

Contrary to the plain language of section 203, the trial court equated felons

required to register under Penal Code section 290 with felons required to register under

the Sex Offender Registration Act. Section 203—whether in subdivision (a)(11) or

elsewhere—does not reference the “Sex Offender Registration Act” generally, or “[Penal

Code] sections 290 to 290.024” more particularly. Instead, it only references those

required to register pursuant to section 290 of the Penal Code.

Besides the literal or plain meaning of “section 290 of the Penal Code” (§ 203,

subd. (a)(11)), other linguistic and structural references within section 203 support the

conclusion that juror ineligibility does not extend to those required to register under other

provisions. The Legislature, in drafting section 203, clearly knew how to refer to a wider

23

group of statutory provisions when it wished to do so. Section 203 specifies that those

ineligible for jury service include “[p]ersons who are not domiciliaries of the State of

California, as determined pursuant to Article 2 (commencing with Section 2020) of

Chapter 1 of Division 2 of the Elections Code.” (§ 203, subd. (a)(3).) By this reference,

the Legislature clearly intended for an interpreting court to refer to the entire article,

starting with a particular code section, of a specific chapter in a specific division of the

Elections Code. By way of comparison, section 203, subdivision (a)(11) does not make

ineligible those required to register pursuant to chapter 5.5 of title 9 of part 1 of the Penal

Code. The fact that, in another provision of the very same statute, the Legislature

invoked a wider range of statutory provisions by reference to chapter and division

indicates the Legislature was well aware of how to craft its language more broadly, if it

chose to do so. This suggests the decision not to do so in section 203, subdivision (a)(11)

was intentional.

Chevron asserts “the requirement to register under section 290.005 is incorporated

into section 290.” However, Chevron merely points to the introductory language of

section 290, subdivision (a), stating that “Sections 290 to 290.024, inclusive, shall be

known, and may be cited, as the Sex Offender Registration Act. All references to ‘the

Act’ in those sections are to the Sex Offender Registration Act.”9 (Pen. Code, § 290,

subd. (a).) This is irrelevant because section 203 contains no references to “the Sex

Offender Registration Act.” Subdivision (a)(11) refers to “Section 290 of the Penal

Code.” Were the language of section 203 drafted differently, our analysis would

9 To the extent Chevron relies on the language of subdivision (d) of Penal Code

section 290, which states a person “shall register for 10 years, 20 years, or life,”

depending on certain circumstances, this is not itself a registration requirement, but rather

merely a timing provision, as discussed above. The registration requirements are set by

subdivision (b), and by additional code sections found at Penal Code section 290.001 et

seq.

24

correspondingly change. But we are not free to rewrite the statute or create new

categories of juror ineligibility the Legislature has not seen fit to create. (See § 1858.)

Well established principles of statutory interpretation also support our reading of

section 203. The canon of statutory interpretation known as expressio unius est exclusio

alterius, i.e., the express mention of one thing excludes all others, supports this

interpretation of the statute. “Under the maxim of statutory construction, expressio unius

est exclusio alterius, if exemptions are specified in a statute, we may not imply additional

exemptions unless there is a clear legislative intent to the contrary.” (Sierra Club v. State

Bd. of Forestry (1994) 7 Cal.4th 1215, 1230; Mutual Life Ins. Co. v. City of Los Angeles

(1990) 50 Cal.3d 402, 410.) More recently, our Supreme Court has explained in some

detail when the inference permitted by this maxim arises: “when there is some reason to

conclude an omission is the product of intentional design.” (Howard Jarvis Taxpayers

Assn. v. Padilla (2016) 62 Cal.4th 486, 514.) “The text must contain a specific list or

facially comprehensive treatment,” because the inference arises only because the

Legislature is presumed not to leave out key terms from a comprehensive list. (Id. at 514–

515.)

This is precisely the circumstance we face here. Section 203 states “[a]ll persons

are eligible and qualified to be prospective trial jurors.” (§ 203, subd. (a).) It then

provides a specific list of exemptions—that is, a list of people who are not eligible to be

trial jurors. It closes this list by specifically noting, “[N]o person shall be excluded from

eligibility for jury service in the State of California, for any reason other than those

reasons provided by this section.” (§ 203, subd. (b).) This is the type of comprehensive

list from which we can and should imply an omission has significance. The Legislature

has omitted any other registration requirement under the Sex Offender Registration Act

from juror ineligibility, except for those “currently” required to register under Penal Code

25

section 290 “based on a felony conviction.” (§ 203, subd. (a)(11).) These specific

requirements imply the Legislature intended to exclude others not expressly listed.

We recognize that our Supreme Court had cautioned that the maxim about

exclusionary lists cannot be applied inflexibly, particularly “if its operation would

contradict a discernible and contrary legislative intent,” or “if doing so would result in

absurd consequences that the Legislature could not have intended” (In re J.W. (2002) 29

Cal.4th 200, 209–210; Estate of Banerjee (1978) 21 Cal.3d 527, 539 [“expressio unius est

exclusio alterius is no magical incantation, nor does it refer to an immutable rule”].)

However, having considered Chevron’s arguments to the contrary, we conclude this

maxim is appropriate here.

First, Chevron has not identified a discernible and contrary legislative intent.

Chevron argues that inferences about legislative intent should be drawn from a broad

reference in legislative materials to permitting some felons to serve on juries if they are

“ ‘not required to register as a sex offender because of a felony conviction.’ ” We will

not infer a specific legislative intent from this general reference because the inference is

weaker than those inferences drawn from the express language of section 203 itself—

language that is the more reliable indicator of intent.

Second, we consider Chevron’s argument that the plain meaning of section 203

produces absurd consequences. We previously have recognized that the absurdity

exception should be used sparingly and only in extreme cases to avoid a judicial

infringement of the Legislature’s separate power. (Switzer v. Wood, supra, 35

Cal.App.5th at p. 129.) Here, Chevron argues a literal interpretation would result in

absurd consequences because it would bar someone convicted of a sex offense in this

state from jury service while allowing someone convicted of a similar sex offense in

another state to serve on a jury.

26

We conclude this apparent inconsistent treatment of sex offenders does not create

absurd consequences that justify rewriting section 203 to expand ineligibility. Instead,

this is a situation where the practical needs of the trial management process justify bright

lines that are easy to administer at the expense of more nuanced and precise results. As

TRC notes, the process of deciding a person who committed an offense in another state is

required to register as a sex offender in this state is hardly straightforward. Penal Code

section 290.005 mandates any person “convicted in any other court, including any state,

federal, or military court, of any offense that, if committed or attempted in this state,

based on the elements of the convicted offense or facts admitted by the person or found

true by the trier of fact or stipulated facts in the record of military proceedings, would

have been punishable as one or more of the offenses described in subdivision (c) of

Section 290” is required to register as a sex offender. (Pen. Code, § 290.005, subd. (a)

[italics added].) This then requires, at a minimum, a comparison of prior versions of

criminal statutes in the state of conviction with prior versions of those in California, to

see whether their elements are the same. If they are not the same—which is likely to be

the case in the majority of instances, given the number of iterations of different criminal

statutes that exist outside of California10—a court must then review any facts admitted in

a guilty plea or found true by the trier of fact, and determine whether those facts would

have been punishable under a registrable statute in California at the time of the offense.

This could involve procuring and reviewing thousands of pages of transcripts of witness

testimony and other exhibits, to determine what facts the trier of fact necessarily found in

order to convict the accused. Only then would a court and/or its juror services

10 It bears noting this does not apply solely to convictions from American courts, but

also presumably includes convictions in the courts of other countries. (See Pen. Code,

§ 290.005, subd. (a) [noting the section applies to “any person who, since July 1, 1944,

has been, or is hereafter convicted in any other court” (italics added)].)

27

department be able to say a person convicted of an out-of-state offense was required to

register under California’s Sex Offender Registration Act.

Consequently, it was reasonable for the Legislature to choose clear boundaries and

not require courts or jury commissioners to undertake such a labor to seat a jury panel for

possible selection. The above-described inquiry would be onerous and time consuming.

If the analysis was conducted by the jury commissioner under her authority to use juror

questionnaires (see § 205), any resulting exclusion would be virtually immunized from

review by any higher court, since it would be conducted ancillary to and outside of any

particular litigation. If the analysis was conducted by the court during voir dire, such a

proceeding could quickly become a “trial-within-a-trial” that might require the court to

stop jury selection to review thousands of pages of documents to determine whether a

prospective juror should be required to register under the Act and, thus, ineligible to serve

as a juror. This would be impractical from a trial management perspective. Accordingly,

we conclude it was reasonable for the Legislature to avoid this impracticality by making

only those convicted of California crimes ineligible de jure, and leaving the parties to use

one of their peremptory challenges to remove any further unfavored jurors. (See §§ 225,

subd. (b)(2), 226, 231, subd. (c).)

In sum, the Legislature has recognized that California’s sex offenses may differ

from those of other jurisdictions and has addressed that possibility by adopting a

registration statute requiring an involved analysis of a conviction in another jurisdiction

to determine whether it constitutes a registrable offense. (See Pen. Code, § 290.005,

subd. (a).) It was reasonable for the Legislature to impose this analysis for purposes of

registration. Furthermore, based on the way it dealt with the problem at the registration

level, it was reasonable for the Legislature to exclude registrable out-of-state convictions

from the juror ineligibility provision in section 203, subdivision (a)(11) because of the

28

practical difficulties in performing the analysis used for registration during the jury

selection process.

Chevron argued at oral argument that In re E.J. (2010) 47 Cal.4th 1258 resolves

this question, because the Supreme Court therein treated a person required to register

under Penal Code section 290.005 as falling within somewhat similar statutory language

only facially referencing Penal Code section 290. However, E.J. does nothing to resolve

the present issue and says nothing about whether, as a matter of statutory interpretation,

Penal Code section 290.005 falls within the ineligibility specified by section 203. That

case concerned a housing restriction on registered sex offenders, which stated, “it is

unlawful for any person for whom registration is required pursuant to Section 290 to

reside within 2000 feet of any public or private school, or park where children regularly

gather.” (Pen. Code, § 3003.5, subd. (b).) The Supreme Court in E.J. addressed ex post

facto arguments about this recently enacted law, but declined to address additional

constitutional challenges related to overbreadth, vagueness, and violations of privacy

rights, property rights, travel rights, and due process due to the need for further

factfinding. (E.J., supra, at pp. 1264–1265.) While it is true one of the four petitioners in

E.J. was apparently required to register under Penal Code section 290.005, the opinion

contained no discussion as to whether the statutory language of section 3003.5 also

applied to such registrants, as the issue was not raised by any party. It is axiomatic prior

opinions only have precedential value for issues actually considered and resolved.

(People v. Knoller (2007) 41 Cal.4th 139, 154–155; Areso v. CarMax, Inc. (2011) 195

29

Cal.App.4th 996, 1005–1006.) Thus, E.J. is not relevant authority for how to interpret

section 203.11

In sum, we conclude section 203 means what it says. Those currently required to

register under Penal Code section 290 based on a felony conviction are ineligible to serve

as jurors. Those required to register as sex offenders under any other statutory provision

are not made ineligible by section 203. We adopt section 203’s plain meaning because

Chevron has not demonstrated it produces absurd consequences or would frustrate the

manifest purposes of the juror eligibility statute. Therefore, Juror No. 10 was not

ineligible to serve as a juror even when we assume he was required to register under

Penal Code section 290.005. The trial court’s ineligibility determination was wrong as a

matter of law.

D. The Concealment of Information Constituted Juror Misconduct

Our conclusion that Juror No. 10 was eligible to serve as a juror does not end the

inquiry into juror misconduct. The trial court also found Juror No. 10 intentionally

11 Further, even if we did believe the Supreme Court intended to interpret Penal

Code section 3003.5, subdivision (b) to include reference to both Penal Code sections

290 and 290.005, even though only Penal Code section 290 is referenced in the text, it

still would not control the outcome to this case. The two statutes—Code of Civil

Procedure section 203 and Penal Code section 3003.5—use different language. Section

3003.5 refers to “any person for whom registration is required pursuant to Section 290.”

Code of Civil Procedure section 203, subdivision (a)(11), meanwhile, refers to “[p]ersons

who are currently required to register as a sex offender pursuant to Section 290 of the

Penal Code based on a felony conviction.” (Code Civ. Proc., § 203, subd. (a)(11).) The

language of Section 203 is considerably more qualified, excluding those no longer

subject to registration and those required to register for a misdemeanor. We cannot

assume the Supreme Court’s analysis of these two statutes would be analogous. Nor are

other policy concerns as readily applicable. The need for practical bright lines is obvious

when it comes to determining potentially qualified jurors, and our justice system retains

mechanisms to exclude undesired jurors through the use of peremptory strikes and for-

cause challenges. It is less obvious the same need for a bright line is present in section

3003.5, nor is there another readily apparent legal backstop analogous to peremptory

strikes and for-cause challenges.

30

concealed information in responding to the juror questionnaire. Specifically, the court

found Juror No. 10 failed to truthfully respond to the inquiry, “If you have ever been to

court for any reason (excluding divorce), please explain,” stating only “Traffic Court

Found Not Guilty.” This answer did not disclose his prior Washington crime or his being

a party to a personal injury suit.

TRC does not argue the trial court erred in finding misconduct based on these two

omissions. Unlike the question of Juror No. 10’s statutory eligibility, whether the

specific answers given by Juror No. 10 in this case were untruthful is primarily a factual

question subject to review under the substantial evidence standard. The record contains

sufficient evidence of Juror No. 10’s involvement in other court cases to uphold the

finding that information was omitted.

Further, the trial court’s disbelief of the assertion in Juror No. 10’s posttrial

declaration that the omissions were inadvertent also withstands scrutiny on appeal. When

a trial court finds all or part of a person’s testimony is not credible, appellate courts apply

the following rule: “A trier of fact is free to disbelieve a witness, even one

uncontradicted, if there is any rational ground for doing so.” (In re Jessica C. (2001)

93 Cal.App.4th 1027, 1043.) The trial court clearly identified a rational ground for

disbelieving Juror No. 10’s declaration—he wished to avoid embarrassment. (See Evid.

Code, § 780, subd. (f) [trier of fact, in determining truthfulness of a witness, may

consider his or her “interest, or other motive”].) Accordingly, the finding that Juror No.

10 intended to withhold known information has adequate evidentiary support.

Consequently, the trial court’s determination that Juror No. 10 engaged in juror

misconduct withstands scrutiny on appeal because it is supported by substantial evidence

and it is consistent with the law defining juror misconduct. (See In re Hitchings (1993)

6 Cal.4th 97, 111 [juror who conceals relevant facts during voir dire undermines the jury

selection process and commits misconduct].)

31

E. De Novo Review of Prejudice Is Required

Having decided the trial court correctly determined Juror No. 10’s failure to

disclose information constituted misconduct, we address whether this misconduct was

prejudicial. We note the trial court stated: “The court cannot divorce the court’s

conclusion that the juror was ineligible from its evaluation [of prejudice]. If the court is

incorrect in its conclusion, the court understands that a reviewing court will consider the

other issues de novo.” Also, the court’s order on reconsideration noted that “if this court

is wrong that the revealed facts render the juror legally ineligible, then the motion for

new trial should be denied.” These statements establish that the trial court’s prejudice

determination was explicitly predicated on its incorrect ruling that Juror No. 10 was

ineligible.

This legal error in the trial court’s evaluation of prejudice raises the question

whether the issue should be remanded to the trial court for redetermination based on a

correct understanding of the law. This is normally the preferred course, because the

question remaining here is whether the juror’s misconduct in being untruthful on the

questionnaire was prejudicial to Chevron, and this is a question the trial court is generally

best situated to answer, having observed the entire case and not acting solely from a cold

record. (In re Mesner’s Estate (1947) 77 Cal.App.2d 667, 677 [“[T]he atmosphere of the

court room during the trial … is something that cannot be adequately reflected in a

printed record.”].) Indeed, some courts have concluded this is the appropriate course of

action. (See Barrese v. Murray (2011) 198 Cal.App.4th 494, 505–508.) However, we

interpret existing case law as foreclosing this option under the circumstances before us.

Section 660 states: “Except as otherwise provided in Section 12a of this code, the

power of the court to rule on a motion for a new trial shall expire 75 days after the

mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5

or 75 days after service on the moving party by any party of written notice of entry of

32

judgment, whichever is earlier, or if that notice has not been given, 75 days after the

filing of the first notice of intention to move for a new trial.” (§ 660, subd. (c).) A

number of courts have held this time limit is mandatory and jurisdictional, and prevents

motions for a new trial from being remanded to the trial court for reconsideration.

(Maroney v. Iacobsohn (2015) 237 Cal.App.4th 473, 485–486, fn. 11 [cannot remand for

reconsideration]; Delos v. Farmers Group, Inc. (1979) 93 Cal.App.3d 642, 667–668

[concluding a motion for a new trial cannot be remanded to trial court because section

660 is jurisdictional, unless a judicially-created exception applies]; Clemens v. Regents of

University of California (1971) 20 Cal.App.3d 356, 360–363 (Clemens II) [Court of

Appeal should review issue de novo, rather than remand on issue of prejudice]; Lippold v.

Hart (1969) 274 Cal.App.2d 24, 26–27 [cannot revive jurisdiction through a remand for

reconsideration].)

Based on our review of the case law, we find Mercer v. Perez (1968) 68 Cal.2d

104 (Mercer) controls. In Mercer, the Supreme Court considered a related statute—

section 657—which had, at the time, been recently revised to require the trial court to

specify the grounds for a new trial and, if the basis was insufficiency of the evidence, to

explain its reasons for concluding the evidence was insufficient. (Mercer, supra, at pp.

111–115.) In Mercer, the trial court identified the grounds for a new trial as insufficiency

of the evidence, but failed to specify the reasons the evidence was insufficient. (Id. at pp.

115–118.) Noting failure to so specify was error as a matter of law, the Supreme Court

was faced with the question of whether it could send the matter back to the trial court to

simply specify the reasons it had omitted. (Id. at pp. 119–122.) The Supreme Court

concluded it could not do so, because the statute contained a strict time limit, and doing

so would permit the trial court to act outside of the jurisdiction granted by statute. (Id. at

pp. 121–122.)

33

In reaching this conclusion, the Supreme Court found a “persuasive analogy”

between the statute in question in Mercer—section 657—and section 660. (Mercer,

supra, 68 Cal.2d at p. 123.) It cited with approval a case concluding “[t]he time limits of

section 660 are mandatory and jurisdictional, and an order made after the 60-day period

purporting to rule on a motion for new trial is in excess of the court’s jurisdiction and

void.” (Ibid., quoting Siegal v. Superior Court (1968) 68 Cal.2d 97, 101 (Siegal).) The

Supreme Court further cited approvingly a decision where a trial court had not acted

within the 60-day period and the Court of Appeal concluded the trial court lost

jurisdiction once that period expired. (Ibid., citing Free v. Furr (1956) 140 Cal.App.2d

378.) As a result, the Court of Appeal refused a remand to the trial court. We thus take

from Mercer that section 660 is indeed meant to be jurisdictional, and once the time limit

set forth there has expired, the matter may not be revisited by the trial court. The

Supreme Court has continued to uphold this view and reinforced its holding that section

657 (and by analogy, section 660) was jurisdictional as recently as 2007. (See Oakland

Raiders v. National Football League (2007) 41 Cal.4th 624, 634–635.)

Siegal, cited by Mercer, concerned a writ taken after a trial court granted a motion

for new trial, but failed to enter the minute order doing so within the statutory time

period. (Siegal, supra, 68 Cal.2d at pp. 99–100.) The trial court entered a minute order

after the statutory period, and did so nunc pro tunc, with a directive that the order be

deemed to have been issued on the date it should have been issued. (Id. at p. 99.) The

Supreme Court concluded section 660 was “mandatory and jurisdictional,” and therefore

the nunc pro tunc order was issued without jurisdiction, because “[i]t is not the function

of a nunc pro tunc order ‘to make an order now for then, but to enter now for then an

order previously made.’ ” (Siegal, supra, at p. 101.) While Siegal standing alone would,

perhaps, be distinguishable from a case on regular appeal, Mercer decides that issue. The

34

Court in Mercer considered whether, in light of error, a new trial motion could be

remanded for further findings after appeal and determined it could not.

There appears to be a split on this issue in published cases. The contrary view is

set forth most expressly in Barrese v. Murray, supra, 198 Cal.App.4th 494, in which the

Second District of the Court of Appeal found the statute was not intended to be

jurisdictional and did not contemplate situations where the matter was taken on appeal

and reviewed, concluding it only mandated a time limit within which the trial court must

rule in the first instance. (Id. at pp. 505–508.) The court stated, “section 660 was not

intended to operate, or apply, in settings where, following an appeal from the judgment,

the appellate court remands the case with directions to the trial court to conduct further

proceedings on a motion for new trial.” (Id. at p. 508.) The court based this inference

about legislative intent in part on its belief that a remand following appeal was a different

context than the one it believed was envisioned by the Legislature in enacting

section 660. (Barrese, supra, at pp. 506–507.) It also pointed to three Supreme Court

cases in which the Court set aside new trial motions and remanded with directions to the

trial court to rehear the motions: Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798;

Krouse v. Graham (1977) 19 Cal.3d 59; and People v. Robarge (1953) 41 Cal.2d 628.

(Barrese, supra, at p. 507.) However, none of these cases cite Mercer or Siegal, much

less overrule them. We do not believe the Supreme Court intended to overrule express

holdings of Mercer and Siegal sub silentio, particularly since the belief in the Court of

Appeal’s inability to remand in this situation was again reiterated in Oakland Raiders v.

National Football League, supra, 41 Cal.4th 624.

The Courts of Appeal have been inconsistent on this issue. Even cases that

heavily rely on Barrese have generally decided on their own how the motion for new trial

should have been resolved after finding the trial court erred. (See Ryan v. Crown Castle

NG Networks, Inc. (2016) 6 Cal.App.5th 775, 783–787 [concluding the trial court erred

35

by failing to understand its duty to provide substantive review of the sufficiency of the

evidence to uphold the jury’s verdict]; id. at pp. 787–790 [concluding independently,

without remand to the trial court, that the motion for new trial should have been

granted].) And there are instances in which the Court of Appeal has approached this

same question in two different ways. In Clemens v. Regents of University of California

(1970) 8 Cal.App.3d 1 (Clemens I), the appellate court remanded to the trial court to

reconsider the motion for new trial pursuant to the then-recent opinion in People v.

Hutchinson (1969) 71 Cal.2d 342. (Clemens I, supra, at p. 19.) In doing so, the court

noted “the facts are by no means conclusive that a new trial should be granted,” but found

“the trial court might have reached a different result if Hutchinson had been decided prior

to the critical hearing.” (Ibid.) Following remand, the trial court denied the motion for

new trial, which was then appealed in Clemens II, supra, 20 Cal.App.3d 356. In Clemens

II, the Court of Appeal found the trial court erred in its determination of the applicable

standard. (Id. at pp. 360–361.) However, it then concluded that, jurisdictionally, section

660 prevented remand to the trial court. (Clemens II, supra, at pp. 361–362.) The

appellate court accordingly reviewed the evidence de novo in determining a new trial

should have been granted. (Clemens II, supra, at pp. 362–367.)

We conclude the weight of authority discussed above establishes that remand is

not an available option. We therefore decline to follow Barrese. Because we cannot

remand this case to the trial court to consider whether Juror No. 10’s misconduct was

sufficient to grant a new trial—understanding he was not statutorily ineligible to serve—

we proceed to make the prejudice determination ourselves.12

12 Our de novo evaluation of prejudice affords no deference to the trial court’s

commentary that “if this court is wrong that the revealed facts render the juror legally

ineligible, then the motion for new trial should be denied.”

36

F. Juror No. 10’s Misconduct Was Not Prejudicial

We begin our de novo review of the prejudice question by acknowledging the

principle that a finding of misconduct creates a presumption of prejudice. (In re Boyette

(2013) 56 Cal.4th 866, 889; In re Hitchings, supra, 6 Cal.4th at p. 118; People v. Cooper

(1991) 53 Cal.3d 771, 835; In re Stankewitz (1985) 40 Cal.3d 391, 399.) This

presumption applies equally to civil and criminal cases. (Hasson, supra, 32 Cal.3d at pp.

416–417 [“[R]egardless of the rule’s origin, civil litigants, like criminal defendants, have

a constitutionally protected right to the complete consideration of their case by an

impartial panel of jurors. … No principled distinction can be drawn between civil and

criminal cases for purposes of the presumption of prejudice arising from juror

misconduct.”].)

The Supreme Court has explained, “[t]he presumption of prejudice is an

evidentiary aid to those parties who are able to establish serious misconduct of a type

likely to have had an effect on the verdict or which deprived the complaining party of

thorough consideration of his case, yet who are unable to establish by a preponderance of

the evidence that actual prejudice occurred. The law thus recognizes the substantial

barrier to proof of prejudice which Evidence Code section 1150 [which bars evidence

showing what effects misconduct had on a juror’s decision to vote] erects, and it seeks to

lower that barrier somewhat.” (Hasson, supra, 32 Cal.3d at p. 416, italics added.)

The presumption that juror misconduct is prejudicial is not conclusive. (See Evid.

Code, § 601 [presumptions are “either conclusive or rebuttable”].) It can be rebutted by

two routes, 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.” (Hasson, supra, 32 Cal.3d at p. 417, italics added.) Here, we are required

37

to re-examine the entire record de novo regardless because the trial court tied its

determination of prejudice specifically and inextricably to an aspect of the juror’s

misconduct about which it was legally mistaken. Thus, we look to whether there is a

reasonable probability of actual harm to the complaining party resulting from the

misconduct.

The verdict will not be disturbed “if the entire record in the particular case,

including the nature of the misconduct or other event, and the surrounding circumstances,

indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood

that one or more jurors were actually biased against the defendant.” (In re Boyette,

supra, 56 Cal.4th at p. 890.) The test is whether the juror’s conduct or failure to disclose

evidences or shows bias. (Ibid.) “The standard is a pragmatic one, mindful of the ‘day-

to-day realities of courtroom life.’ ” (In re Hamilton (1999) 20 Cal.4th 273, 296.)

Because the jury is a “fundamentally human” institution, it cannot be divorced from the

fact that jurors will have different experiences, opinions, and personalities, which is both

a strength and a weakness of having civilian juries. (People v. Marshall (1990) 50 Cal.3d

907, 950.) “If the system is to function at all, we must tolerate a certain amount of

imperfection short of actual bias.” (In re Carpenter (1995) 9 Cal.4th 634, 655.)

As several appellate court opinions have commented recently, “[t]he law

concerning prejudice lacks clarity.” (People v. Solorio (2017) 17 Cal.App.5th 398, 407.)

“Whereas some cases focus on whether the presumption of prejudice arising from

misconduct has been successfully rebutted, others consider whether the prejudice was

sufficiently substantial to warrant reversal. [Citations.]” (Ibid.) However, our Supreme

Court has expressed these standards as two sides of the same coin, noting: “Any

presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire

record in the particular case, including the nature of the misconduct or other event, and

the surrounding circumstances, indicates there is no reasonable probability of prejudice,

38

i.e., no substantial likelihood that one or more jurors were actually biased against the

defendant.” (In re Hamilton, supra, 20 Cal.4th at p. 296; see also In re Boyette, supra, 56

Cal.4th at p. 890.) In other words, if this court determines there was no substantial

likelihood one or more jurors were actually biased against Chevron, the presumption will,

of necessity, have been rebutted.

“Some of the factors to be considered when determining whether the presumption

is rebutted are the strength of the evidence that misconduct occurred, the nature and

seriousness of the misconduct, and the probability that actual prejudice may have

ensued.” (Hasson, supra, 32 Cal.3d at p. 417.) This list is not exhaustive, nor is it a set

of elements that must be met to determine whether misconduct was prejudicial. All told,

we must determine whether there was a substantial likelihood of actual bias, which would

create a reasonable probability of actual harm to the complaining party.

“Society has a manifest interest in avoiding needless retrials: they cause hardship

to the litigants, delay the administration of justice, and result in social and economic

waste.” (Mercer, supra, 68 Cal.2d at p. 113.) Our Supreme Court has clearly noted it

will not “allow the impeachment of jury verdicts on a bare showing that some jurors

failed to conform their conduct to the ideal standard of utmost diligence in the

performance of their duties.” (Hasson, supra, 32 Cal.3d at p. 418.) The Court has

commented that even conduct that cannot generally be condoned may still not warrant

retrial, especially in long or complex cases, because doing so would be unworkable and

would allow the perfect to become the enemy of the just. (Ibid. [“Retrials are to be

avoided unless necessitated by a more substantial dereliction of jurors’ duties than was

evident in this case.”].)

1. Jury Selection and Trial

We think it appropriate to note, if only for context, the circumstances of this case

that highlight the burdens of granting new trials.

39

It is clear from the record in this case that seating a jury was a difficult process.

This is unsurprising, given that trial was projected to last six weeks, and occurred in the

immediate aftermath of the COVID-19 pandemic. Voir dire began on July 19, 2021, and

lasted through August 2. Almost 200 prospective jurors were excused for cause during

this process. Given the difficulty of the process and the length of the anticipated trial,

while the court initially anticipated seating only four alternates, it ultimately expanded

this to six alternates.

This proved to be a prescient move on the part of the trial court, because numerous

jurors were excused throughout the trial. On August 30, 2021, after almost four weeks of

trial, one juror developed COVID. Following rules set by California’s Division of

Occupational Safety and Health, the court ultimately excused three jurors, including both

the ill juror and two who had been in contact with them. At that point, the court also took

other appropriate measures to ensure no mistrial would occur, including closing the court,

limiting the number of attorneys permitted to be physically present in the courtroom,

requiring jurors and others to mask much of the time, and setting all other law and motion

hearings to remote appearances only. Then on September 9, 2021, at the end of the sixth

week of trial, the court excused another juror who needed to take care of their spouse

following a surgical procedure. By September 17, after seven weeks of trial and a full

week past the expected completion date projected by the parties, the court noted the case

was “at serious risk of a mistrial,” because it had only one alternate remaining, indicating

a fifth juror was excused at some point in the proceeding. The court expressed its

concerns with what would happen if a mistrial occurred, observing that the case was

seven years old and “if it’s mistried, it probably won’t see the light of day for another two

or three years.”

These practical difficulties do not control our analysis of whether prejudice

occurred. However, we do find them instructive to clearly articulate the burden that is

40

placed on the judicial system when a losing party seeks a new trial because of alleged

juror misconduct.

2. Nature and seriousness of the misconduct.

We next turn to the nature and seriousness of the misconduct. In this case, the

misconduct that occurred was Juror No. 10’s intentional untruthfulness during voir dire

about any prior involvement in court cases. In appropriate instances, a juror’s intentional

dishonesty during voir dire can be circumstantial evidence of their bias against a

particular party. “[W]hen a juror conceals material information on voir dire, ‘that

information establish[es] substantial grounds for inferring that [the juror] was biased ...

despite ... protestations to the contrary.’ ” (In re Hitchings, supra, 6 Cal.4th at p. 120,

quoting People v. Price (1991) 1 Cal.4th 324, 400–401.) A juror’s “false answers”

during voir dire can therefore provide “an initial indication that she may have prejudged

[the] case.” (Hitchings, supra, at p. 120; see also McDonough Power Equip., Inc. v.

Greenwood (1984) 464 U.S. 548, 556 (conc. opn of Blackmun, J.) [“[T]he honesty or

dishonesty of a juror’s response is the best initial indicator of whether the juror in fact

was impartial”].)

The trial court found Juror No. 10 was not biased against Chevron when it noted

he concealed his prior conviction solely out of embarrassment. The court noted this

elsewhere as well, stating on the record: “Well, he wasn’t biased. I didn’t find that he

was biased for or against TRC or Chevron.” Nor does Chevron point us to any evidence

suggesting Juror No. 10 was biased against it, or biased in some other manner that would

have affected his or other jurors’ analyses of the substantive case itself.

Instead of disputing this point factually, Chevron urges this court to adopt the trial

court’s definition of bias as meaning, “an inclination in temperament and outlook: esp: a

highly personal and unreasonable distortion of judgment,” a definition drawn from

Webster’s Dictionary. We do not adopt this approach.

41

The bias necessary to constitute prejudice in juror misconduct cases is a tendency

to unreasonably favor one aspect of the case over others, separate and apart from the

juror’s consideration of the evidence and the law applicable to the case. California

statute defines actual bias as meaning “the existence of a state of mind on the part of the

juror in reference to the case, or to any of the parties, which will prevent the juror from

acting with entire impartiality, and without prejudice to the substantial rights of any

party.” (§ 225, subd. (b)(1)(C), italics added.) The emphasized language demonstrates

that the state of mind must be in specific reference to the case or to any party. The

statutory language, notably, does not speak to the juror’s state of mind in reference to the

court, the judge, or the court’s administrative rules.

Case law confirms this approach to understanding bias. Where juror misconduct

consists of the introduction of improper “evidence” or other information to the

deliberation room, courts look to whether that evidence tends to favor one side’s view of

the evidence on a critical point. (See, e.g., Smith v. Covell (1980) 100 Cal.App.3d 947,

953–954 [juror’s comments in a personal injury suit that when his back “ ‘went out’ it

‘went out right away’ ” and he could still work afterward went to critically disputed

issues in the case]; People v. Resendez (1968) 260 Cal.App.2d 1, 11 [juror’s remarks

“[did] not disclose a biased or prejudiced mind against appellant”].) In situations where

an ineligible juror has nonetheless served, the prejudice question again focuses on the

juror’s prejudice in relation to some aspect of the case, i.e., the dispute between the

parties which the jurors are asked to resolve. (In re Manriquez (2018) 5 Cal.5th 785, 818

[“Although it was misconduct for Juror C.B. not to answer the pretrial juror questionnaire

accurately, there is no substantial likelihood she was actually biased against petitioner.”

(Italics added.)]; People v. Green (1995) 31 Cal.App.4th 1001, 1019–1020 [finding the

presumption of prejudice rebutted because “the trial court expressly found after an

extensive inquiry that [the ineligible juror] had no actual bias against defendant”].)

42

Bias does not necessarily mean bias for or against a particular party. Bias could

pertain to some other aspect of the substantive case that renders a juror unable to be

impartial toward the weighing of the evidence and consideration of the law. For instance,

our Supreme Court has noted a juror may “harbor a general bias against a class of

witnesses” which prevents them from fairly considering the case. (In re Manriquez,

supra, 5 Cal.5th at p. 812 [noting other cases had upheld the mid-deliberations removal

of a juror who believed “ ‘police officers in Los Angeles generally lie’ ”]; see also People

v. Barnwell (2007) 41 Cal.4th 1038, 1051.)

Similarly, bias may exist against the laws to be applied in a particular case. Our

Supreme Court has long noted that, while juries have the power to nullify a criminal

charge due to the practicalities of our legal system, such a verdict is not lawful; it is

merely unreviewable and therefore insulated from challenge. (See People v. Williams

(2001) 25 Cal.4th 441, 449–451, disagreed with on other grounds by Barnwell, supra, 41

Cal.4th 1038.) However, the fact such power is held by the jury does not prevent the

removal of a juror who affirmatively states they will not follow the law. (Id. at pp. 459–

460; see also People v. Engelman (2002) 28 Cal.4th 436, 441 [“The Court of Appeal was

correct in determining that the jury has the duty to follow the court’s instructions and that

the jury lacks the right to engage in nullification.”].)

The foregoing types of bias are directed at the substantive case itself, not the

administrative rules of the court. While the trial court—indeed, all courts—certainly has

the prerogative to manage its own docket and thus enforce compliance with its

administrative rules (see Walker v. Superior Court (1991) 53 Cal.3d 257, 266–267), we

are not confronted with a case in which the court removed Juror No. 10 for his refusal to

follow masking rules and a party is appealing the juror’s removal.

The only evidence of Juror No. 10 not following directions was in relation to the

court’s masking rules. After several jurors were excused due to COVID-19, and the court

43

imposed more drastic precautions, the court questioned each of the jurors about their

willingness to abide by the rules of the courthouse and mask. Juror No. 10 stated he felt

“invested in this case” and would “like to remain a juror,” but stated unequivocally, “I am

not wearing a mask again. I did it for a year, and I’m not doing it anymore, I’m done.

I’ve had COVID, and I’m fully vaccinated, and I’m done with the mask. I’m not wearing

a mask at any time, anywhere, for anybody.” Additionally, the court later noted a

situation in which Juror No. 10 refused to wear a mask on the jury transport bus, was

prevented from boarding it, and elected to cross over a set of train tracks on foot to get to

the courthouse, thus delaying the proceeding. This flaunting of administrative rules

clearly irked the court, which noted numerous times in the order for a new trial that the

juror had ignored its orders, required special accommodations, and refused to be masked.

The court described Juror No. 10 as “obstinate, untruthful, obstreperous, contemptuous,

ineligible[ ] and entitled.”

Certainly, in appropriate cases, a trial court has the ability to remove jurors who

simply refuse to follow the court’s procedural rules, even those which have nothing to do

with the substantive case the juror is being asked to decide. Here, the question presented

is whether, after a verdict has been rendered, that verdict should be set aside because of a

juror’s bias against the court’s administrative rules, particularly its rules related to

masking. The answer is no. This is not the type of “bias” that shows the losing party was

prejudiced in any way by this juror’s participation. While in some cases juror dishonesty

might be indicative of prejudgment or bias, the nature and seriousness of the misconduct

here weighs against finding a substantial likelihood of bias against Chevron, because

Juror No. 10’s only exhibited “bias” was against masking and the court’s administrative

rules in that regard.

3. Probability actual prejudice occurred and vote counting.

The parties have addressed an aspect of the prejudice analysis involving vote

44

counting. A critical difference between criminal and civil jury trials is that unanimity is

required for criminal convictions, where only a supermajority is required to find a civil

defendant liable. (See Cal. Const., art. I, § 16.) Therefore, the impact of juror

misconduct necessarily varies between civil and criminal cases. TRC argues, in essence,

for a per se rule that, in civil cases, if enough votes were left in favor of liability, there

can be no prejudice. Chevron argues for the opposite, suggesting any verdict which

includes a biased juror must necessarily be set aside. Neither is correct.

Vote counting has been considered in determining whether a new trial was

appropriately granted. (E.g., Weathers v. Kaiser Foundation Hosp. (1971) 5 Cal.3d 98,

110 [“Since the verdict was nine to three, the disqualification for bias of any one of the

majority jurors could have resulted in a different verdict.”]; Grobeson v. City of Los

Angeles (2010) 190 Cal.App.4th 778, 785, 798 [affirming trial court’s grant of a new trial

only on claims that were decided by a nine to three vote, and not those decided by a ten to

two, eleven to one, or twelve to zero vote, where misconduct was one juror’s pre-

judgment of the case].) As one court has explained: “in civil cases, where the court finds

a ‘substantial likelihood’ that enough jurors were impermissibly influenced by

misconduct to have affected the verdict to the detriment of the complaining party, there is

‘reasonable probability of actual harm to the complaining party resulting from the

misconduct.’ ” (Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 322–323,

italics added.) Since civil juries need not be unanimous, “the number of tainted jurors

needed to compel reversal will vary. For example, 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.” (Id. at p. 323 fn. 5, italics original.)

Thus, vote counting, combined with an evaluation of whether the misconduct tainted

45

other jurors, can and has been used in evaluating whether actual prejudice is likely to

have ensued.

However, vote counting is not the sole arbiter of whether prejudice has occurred,

and we decline TRC’s invitation to make it a per se determiner of prejudice. It is simply

a tool, which is more useful in some situations and less useful in others. A brief example

of this is presented by former Chief Justice Bird in Ballard v. Uribe, a personal injury

case. In that case, two jurors said during deliberations that under no circumstances would

they award anything for pain and suffering, regardless of what the law required. (Ballard

v. Uribe (1986) 41 Cal.3d 564, 590–591 (conc. & dis. opn. of Bird, C.J.).) Chief Justice

Bird noted this evidence of an unwillingness to follow the law as instructed by the court

was serious misconduct. (Id. at p. 593.) Notwithstanding these statements, the jury

unanimously returned an award for the plaintiff in the amount of $200,000. (Id. at p.

594.) In this circumstance, Chief Justice Bird explained the unanimity of the jury

actually increased the likelihood the misconduct prejudiced the plaintiff, even though the

jury found in his favor. (Id. at p. 595.) Because the verdict was unanimously in favor of

plaintiff, it necessarily included the views of the two jurors who expressed a strong

intention to disregard the law. (Ibid.) Because there was no evidence these jurors

reversed course, or convinced the remaining jurors damages for pain and suffering were

unwarranted on the facts of the case, “it appears likely that the verdict reflected a

downward adjustment to accommodate those views.” (Ibid.) Under these facts, “the

potential for prejudice to plaintiff stems from the likelihood that their improper

statements, made prior to the vote, influenced other jurors to agree to a lower,

compromise damage award.” (Ibid.) This example merely illustrates one way in which

vote counting does not, on its own, resolve the issue of prejudice.

In this case, the jury voted 11-1 in favor of TRC, with only Juror No. 2 finding

they would not have held Chevron liable. Even assuming Juror No. 10 was therefore

46

replaced with another juror who had voted for Chevron, the verdict would still have been

sufficient to render a finding of liability against Chevron. The only misconduct here was

Juror No. 10’s dishonesty during voir dire by failing to disclose prior court cases in which

he was involved. Neither of the court cases—a felony criminal case in Washington and a

personal injury suit in which he was plaintiff—relate in any manner to the current case or

are likely to have influenced Juror No. 10’s impression of the current case. There is no

evidence Juror No. 10’s prior experiences with the courts were communicated in any way

to the other jurors, much less influenced their votes or tainted them with a bias as to the

parties or the issues being decided. In this situation, it is reasonable to use vote counting

to support the conclusion that there was no substantial likelihood that actual prejudice to

Chevron resulted from Juror No. 10’s misconduct. Therefore, we conclude the

presumption of prejudice was rebutted and the grant of a new trial should be reversed.

G. Even If Juror No. 10 Was Ineligible, There Was No Prejudice

To aid the efficiency of any subsequent proceedings, we set forth how we would

decide the appeal under an alternative interpretation of the juror eligibility statute that

concludes Juror No. 10 was ineligible to serve on the jury. Under that alternative, the

outcome here would remain the same because our determination that there was no

prejudice to Chevron from Juror No. 10’s service on the jury remains unchanged. (Cf.

People v. Miller (2008) 482 Mich. 540, 552 [juror was statutorily unqualified to serve

due to sex offense conviction; defendant offered no evidence that the juror was not

impartial].)

To reiterate briefly, a court may grant a new trial for an “[i]rregularity in the

proceedings of the … jury” that prevents any party from having a fair trial or for

“[m]isconduct of the jury[.]” (§ 657, subds. 1, 2.) It appears that Juror No. 10’s

inclusion on the jury could be conceptualized either as an irregularity in the proceedings

of the jury or the result of misconduct of Juror No. 10—namely, his intentional

47

concealment of facts establishing his ineligibility. In either event, a new trial is

authorized under section 657 only if the irregularity or misconduct materially affected

the substantial rights of the moving party—that is, resulted in prejudice to Chevron.

Under these principles, the “ineligibility of a juror is not a fatal defect.” (People v.

Green, supra, 31 Cal.App.4th at p. 1019; see People v. Evans (1899) 124 Cal. 206, 210

[judgment affirmed where a juror was not a citizen].) Stated another way, ineligibility

does not create a conclusive presumption of prejudice.

Next, we address whether the analysis of prejudice is different when a juror is

statutorily ineligible. We resolve this legal issue by concluding the prejudice standard is

the same. The ineligibility, coupled with the intentional concealment of information

pertaining to eligibility and other matters, still creates a rebuttable presumption of

prejudice. (People v. Green, supra, 31 Cal.App.4th at pp. 1019–1020 [felony conviction

rendered juror ineligible; rebuttable presumption of prejudice applied where juror

concealed that conviction].) That presumption is rebutted either by making “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, supra, 32

Cal.3d at p. 417, italics added.) In conducting this inquiry, the court evaluates whether

there is a “substantial likelihood that one or more jurors were actually biased against the

defendant.” (In re Boyette, supra, 56 Cal.4th at p. 890; see also In re Hamilton, supra, 20

Cal.4th at p. 296; Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 58

[“Misconduct was prejudicial if there is a substantial likelihood that the juror was biased

and that the misconduct affected the verdict.”].) For example, in People v. Green, supra,

31 Cal.App.4th 1001, the appellate court found “no indication in the record that [the

ineligible juror’s] status as an ex-felon affected his ability to be impartial” and concluded

48

the presumption had been rebutted because “[t]he record shows no actual harm from the

misconduct.” (Id. at pp. 1019–1020.)

Based on the foregoing principles, we again conclude that, even if Juror No. 10

was statutorily ineligible to serve, the trial court used the wrong definition of bias in its

analysis of prejudice. The proper definition of actual bias in relation to members of a

jury panel is “the existence of a state of mind on the part of the juror in reference to the

case, or to any of the parties, which will prevent the juror from acting with entire

impartiality, and without prejudice to the substantial rights of any party.” (§ 225,

subd. (b)(1)(C), italics added.) Neither this court nor the trial court is free to substitute in

a different definition where the Legislature has already defined the term. (City of Chula

Vista v. Drager, supra, 49 Cal.App.5th at p. 560; Diamond Multimedia Systems, Inc. v.

Superior Court (1999) 19 Cal.4th 1036, 1047; People v. Nesler (1997) 16 Cal.4th 561,

581 [noting the bias necessary to constitute misconduct is the same as the “actual bias”

necessary to warrant disqualification as a juror].)

Here, we need not separately discuss whether actual bias existed because our

earlier analysis resolves that issue. Next, we assume the appropriate definition of bias is

expansive enough to include Juror No. 10’s hostility to the court’s masking rules. Under

this assumption, this bias must have affected the outcome of the proceeding to establish

prejudice. (Ovando, supra, 159 Cal.App.4th at p. 58.) Our independent review agrees

with the trial court’s determination that “Juror No. 10 did not engage in overt misconduct

during the deliberations which influenced the outcome.” The court noted that, while

Juror No. 10 was “undoubtedly opinionated and loud during the deliberations,” this was

“not itself a basis to overturn the outcome, and does not itself constitute misconduct.”

While Chevron presented one declaration from Juror No. 2 suggesting Juror No. 10 was

overbearing during deliberations, TRC presented declarations from nine jurors indicating

he was not, that deliberations were entirely civil, and that each juror was able to express

49

their views on the case. If Juror No. 10’s vote removed from consideration, the

remaining 10 votes in favor of TRC are sufficient to sustain the verdict because civil

cases do not require unanimous jury verdicts. (Cal. Const., art. I, § 16; see Weathers v.

Kaiser Foundation Hosp., supra, 5 Cal.3d at p. 110; Grobeson v. City of Los Angeles,

supra, 190 Cal.App.4th at pp. 785, 798; Glage v. Hawes Firearms Co., supra, 226

Cal.App.3d at pp. 322–323, fn. 5; City of Pleasant Hill v. First Baptist Church (1969) 1

Cal.App.3d 384, 433; La Gue v. Delgaard (1956) 138 Cal.App.2d 346, 348.)

In sum, even assuming that Juror No. 10 was statutorily ineligible, the motion for

a new trial should have been denied because the presumption of prejudice was rebutted

by (1) the lack of any indication Juror No. 10 was biased within the meaning of

section 225 and (2) the evidence showing his participation did not affect the outcome of

the case.

II. CHALLENGES RAISED IN CHEVRON’S CROSS-APPEAL

Having overturned the order granting a new trial for juror misconduct, we must

address the issues raised in Chevron’s cross-appeal. Those issues include whether the

jury instructions on causation misstated the law; whether the evidence was sufficient to

support the findings that Chevron caused TRC’s harm; whether the damages were

excessive; and whether additional jury findings were needed to support the award of

prejudgment interest. We begin with whether the jury was properly instructed on the

causation issues. If the instructions were correct, we will analyze whether the evidence

was sufficient to support the jury’s findings regarding causation and damages.

A. Procedural Background

It is important to place the issue involving the causation instructions and the

grounds raised in Chevron’s JNOV motion in the context of how this case was ultimately

presented to the jury, recognizing this case started in 2014, involved extensive discovery,

dispositive motions, pretrial motions in limine, section 402 hearings, bifurcated pretrial

50

hearings, and written pretrial orders from the trial court. This case eventually proceeded

to trial in 2021 on three identical causes of action brought by TRC and Chevron against

each other: negligence, trespass, and private nuisance. Although the elements of

wrongdoing for these torts differ, the elements of causation and harm are the same. (See

Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 [three generic elements of

a tort cause of action are wrongdoing, causation and harm].)

1. Issues Severed from the Jury Trial

Following the filing of numerous pretrial motions in limine shortly before trial, the

court sua sponte severed or bifurcated several issues for its determination before jury

selection, pursuant to section 598. The court considered two related issues arising from

the pretrial motions: first, the causation issue of whether Chevron could be held liable for

“lost profits or other economic damages which arise solely as a result of orders” by

DOGGR (italics added); and second, whether TRC may “present the DOGGR Orders

alone as evidence that Chevron’s conduct caused TRC’s economic harm.”

In terms of background facts, which were undisputed, the trial court found

DOGGR issued order No. 1012 on July 6, 2011, which found Well 20 was damaged and

had been so since before 2008, and that prior efforts to construct containment facilities by

Chevron had failed. Order No. 1012 required Chevron to cease steaming within 150 feet

of the surface expression near Well 20, which would increase to 300 feet if steam or

fluids were still coming to the surface after five days.

On July 19, 2011, DOGGR issued order No. 1014, which found that a surface

expression near a TRC well, called “Bull 9,” also began on June 21, 2011. DOGGR

ordered TRC to cease steaming within 150 feet of both Well 20 and Bull 9, which would

expand to 300 feet if fluids continued to surface after five days. TRC appealed that order,

which stayed its enforcement automatically.

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Ultimately, DOGGR issued emergency order No. 1015 on August 5, 2011,

following new surface expressions and eruptions, prohibiting TRC from engaging in

steam injection within 500 feet of the surface expression near Well 20. Later that month,

on August 26, 2011, DOGGR expanded its restrictions in Emergency Order No. 1016,

requiring that neither Chevron nor TRC engage in steam injection within 800 feet of the

surface expression near Well 20 until DOGGR was satisfied the conditions creating the

surface expressions were remediated.

These orders banning steam injection in the area remained in effect until April 3,

2015, when DOGGR issued emergency remedial order No. 1068 to TRC, which

superseded emergency order No. 1016. On July 15, 2015, TRC and DOGGR agreed to

terms of satisfaction of emergency remedial order No. 1068, wherein DOGGR found

TRC had satisfied the order and approved TRC to resume injection operations. Thus,

TRC was prohibited from steaming these wells from the summer of 2011 to the summer

of 2015, a period of four years.

On the evidentiary question, the trial court sought to determine the purposes for

which the DOGGR orders could be appropriately introduced into evidence at trial,

including to show Chevron’s negligence. It concluded there were a number of purposes

for which the DOGGR orders could not be admitted, including proving what motivated

DOGGR to issue those orders, that an emergency in fact existed, or that the orders were

necessary “to protect life, health, property, and natural resources,” as these were opinions

not subject to the hearsay exception for official records. Rather, the DOGGR orders were

admissible only to “prove that surface expressions are observed, that there was an

industrial accident, and that DOGGR ordered certain cyclical steam limitations for a

period of time.” Additionally, the court noted expert opinion would be necessary for

TRC to prove Chevron’s negligence caused physical conditions on TRC’s property that

prevented it from engaging in cyclical steaming.

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On the question of whether Chevron could be liable to TRC for economic

damages which were solely the result of DOGGR orders, the court concluded Chevron

could not. The court reasoned the DOGGR orders were not “the actions of first

responders in the field,” but rather demonstrated “an amount of considered reflection.”13

Ultimately, the DOGGR orders were not temporary ones, but remained in place for four

years. While noting Chevron owed a duty to TRC as any landowner owes to its

neighbors “not [to] unreasonably cause injury to TRC’s neighboring property,” this did

not “extend to economic losses that result from the considered, independent,

discretionary actions of DOGGR at its headquarters made remotely from events in the

field.” The court based this decision largely on the apparent non-emergent consideration

given by DOGGR, noting: “Someone with expertise from DOGGR had to review the

information presented and available and then decide to present the evidence and

recommendations to the Supervisor of DOGGR. Someone from DOGGR had to draft

and finalize the orders. The Supervisor had to consider the detailed terms of the orders

and sign them and issue them.”

Ultimately, the trial court agreed with Chevron’s argument and held “Chevron

may not be held liable for TRC’s lost profits or other economic damages which arise

solely as a result of the DOGGR Orders.” (Italics added.) In essence, the court’s holding

determined that, if the DOGGR orders were solely responsible for particular items of

harm14 and thus the attendant damages suffered by TRC, Chevron would not have any

liability for those damages.

13 We do not necessarily agree with this analysis, as will become apparent later, but

recount it here for background.

14 Our use of the phrase “items of harm” is derived from the instruction to the jury

that the amount of damages “must include an award for each item of harm that was

caused by Chevron’s wrongful conduct, even if the particular harm could not have been

anticipated.”

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The court did not, however, prevent TRC from attempting to prove its claims

independent of the DOGGR orders. The court’s order permitted TRC to attempt to prove

that, regardless of what DOGGR did or did not do, Chevron negligently maintained its

own wells which caused physical damages to TRC’s property, which required TRC, as a

matter of prudence and safety, to cease steaming its wells between July 2011 and July

2015. In other words, if TRC could prove that the reason it stopped steaming was not

solely or entirely due to the DOGGR orders, but rather Chevron’s negligence was a

substantial factor in creating conditions that were unsafe for steaming, then it could

recover damages. This was the theory upon which TRC tried the case.

2. Jury Instructions and Verdict Form

Following evidence and arguments, the jury was instructed that both TRC and

Chevron alleged claims against each other for negligence, trespass, and private nuisance

and the elements of these claims were specified. With respect to the causation element in

each claim, the jury was instructed that either Chevron or TRC’s actions must have been

a substantial factor in causing harm to the other. The court did not modify CACI No.

430, “Causation: Substantial Factor,” and instructed the jury that “[a] substantial factor in

causing harm is a factor that a reasonable person would consider to have contributed to

the harm. It must be more than a remote or trivial factor. It does not have to be the only

cause of the harm.”

Using CACI No. 431, “Causation: Multiple Causes,” the trial court instructed the

jury that “[a] person’s negligence may combine with another factor to cause harm. If you

find that Chevron’s negligence was a substantial factor in causing TRC’s harm, then

Chevron is responsible for the harm. Chevron cannot avoid responsibility just because

some other person, condition, or event was also a substantial factor in causing TRC’s

harm.” A corresponding instruction was given about other causes of Chevron’s harm.

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A further instruction about causation addressed the affirmative defense asserted by

both Chevron and TRC that the other party’s own negligence contributed to the other

party’s harm. Using CACI No. 405, “Comparative Fault of Plaintiff,” the trial court

instructed the jury that to succeed on this affirmative defense, Chevron must prove “[t]hat

TRC was negligent and that TRC’s negligence was a substantial factor in causing its

harm.” The court gave a corresponding instruction for TRC’s affirmative defense about

Chevron’s own negligence causing Chevron’s harm.

The trial court also gave a causation instruction tailored to this case and based on

the court’s conclusion, following the bifurcated court trial, about the legal effect of the

DOGGR orders. The instruction reads: “Neither party may be held liable for harms

caused solely by the DOGGR orders alone.” (Italics added.) We will adopt the parties’

convention and refer to it as the superseding cause instruction. It was designed for the

theory of the case Chevron was presenting to the jury, and told the jury it could determine

some (or all) of either party’s harm were, as a factual matter, caused by the DOGGR

orders alone. If the jury determined this, then the other party could not be liable for the

particular items of harm the jury determined were solely caused by the DOGGR orders.15

On the subject of damages, the jury was instructed that if a party proved any of its

claims, the jury “must decide how much money will reasonably compensate [the injured

party] for the harm” and “the amount of damages must include an award of each item of

harm that was caused by” the wrongdoer’s tortious conduct. When the instructions on

damages and causation are read together, no compensation would be awarded for any

“item of harm” caused solely by the DOGGR orders. The items of harm claimed by TRC

were harm to its property and lost profits, including future profits.

15 This instruction could be described as a further explanation of the substantial

factor test for causation. In other words, the wrongdoing of either TRC or Chevron could

not be a substantial factor in causing harm that was caused solely by the DOGGR orders.

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Using a modified version of CACI No. 3960, the trial court instructed the jury how

to render a general verdict while determining the comparative fault by the parties. They

were told to (1) decide the total amount of each party’s damages; if any, (2) decide the

percentage of responsibility that Chevron and TRC had for the damages incurred by each

party; if any, and (3) reduce their total damages by the percentage of responsibility so

determined.

The agreed-upon general verdict form called for a general verdict and presented

the same four questions for each parties’ claims. The verdict form did not segregate each

cause of action. It first asked whether the respective party had proven any of its claims

by a preponderance of the evidence and directed the jury to answer by checking “Yes” or

“No.” If the jury answered yes to the first question, it was directed to answer whether the

opposing party had proven its statute of limitations defense, again by checking “Yes” or

“No.” If the jury said no to the second question, the third question asked the amount of

damages the jury was awarding and provided a blank line for the dollar amount. The

fourth question asked if the jury was awarding prejudgment interest and provided a place

to check “Yes” or “No.” Thus, the verdict form provided no place for the jury to report

the percentages of fault it attributed to each party, or to set out what amount of damages,

if any, it found were solely caused by the DOGGR orders. Rather, all of these

calculations were to be completed by the jury before indicating only the final damages

award on the verdict form.

We note the parties’ election to use a general verdict is significant to our analysis

because a general verdict “implies a finding in favor of the prevailing party of every fact

essential to the support of his action or defense.” (Henderson v. Harnischfeger Corp.

(1974) 12 Cal.3d 663, 673; see also Wilson v. County of Orange (2009) 169 Cal.App.4th

1185, 1193; Codekas v. Dyna-Lift Co. (1975) 48 Cal.App.3d 20, 24.)

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A. The Jury Instructions Were Appropriate

We first consider whether the jury was properly instructed before addressing

whether the findings made pursuant to those instructions were supported by substantial

evidence. Chevron argues that the trial court erred by providing the jury with a multiple

causes instruction (CACI No. 431), and by omitting certain proposed language from the

superseding cause instruction. Additionally, although Chevron does not frame it as a

challenge to the superseding cause instruction per se, it challenges whether the question

of superseding cause was appropriately left to the jury to determine, arguing that our

Supreme Court has imposed a different type of superseding cause analysis to cases

involving governmental actions or orders. We conclude the jury instructions were not

erroneous.

1. Standard of Review for Instructional Error

“A party is entitled upon request to correct, nonargumentative instructions on

every theory of the case advanced by him which is supported by substantial evidence.

The trial court may not force the litigant to rely on abstract generalities, but must instruct

in specific terms that relate the party’s theory to the particular case.” (Soule v. General

Motors Corp., supra, 8 Cal.4th at p. 572.)

Whether a jury instruction is correct or erroneous is a question of law. (Harb v.

City of Bakersfield (2015) 233 Cal.App.4th 606, 617.) As a result, whether a jury

instruction misstates the law is subject to independent review on appeal. (Ibid.) If an

instructional error occurred, the appellant also must establish the error was prejudicial.

(Ibid.; see Cal. Const., art. VI, § 13 [miscarriage of justice].) An instructional error is

prejudicial if there is a reasonable probability that in the absence of the error, a result

more favorable to the appealing party would have been reached obtained. (Harb, supra,

at p. 617.) Generally, the appropriate remedy for an instructional error that is prejudicial

is a reversal of the judgment and a remand for a new trial. (See e.g., Kinsman v. Unocal

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Corp. (2005) 37 Cal.4th 659, 683; Harb, supra, at pp. 610, 637.) These principles of

appellate review apply regardless of whether Chevron’s claim of instructional error arises

from its appeal of the judgment or its appeal of the order denying the motion for a new

trial.

2. Instructions on Multiple Causes and Substantial Factor Were

Not Erroneous

Chevron contends the multiple causes instruction inappropriately permitted TRC

to argue Chevron could still be liable for harm that Chevron caused in combination with

the effects of the DOGGR orders. As explained below, this is precisely what the law

allows. A jury is permitted to find liability so long as a party was a substantial factor in

causing the harm, even if it combined with other causes to bring about the injuries.

Here, the parties presented evidence that, when viewed in the light most favorable

to the parties presenting it, indicated there were potentially multiple causes of the harm

that occurred. This made a multiple causes instruction appropriate. (Logacz v. Limansky

(1999) 71 Cal.App.4th 1149, 1157–1158.) Where there are multiple causal agents that

arguably contribute to an injury or harm, courts “apply the ‘substantial factor’ test of the

Restatement Second of Torts, section 423, which subsumes traditional ‘but for’

causation.” (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352

fn. 12; see also In re Ethan C. (2012) 54 Cal.4th 610, 640.) “A defendant’s negligent

conduct may combine with another factor to cause harm; if a defendant’s negligence was

a substantial factor in causing the plaintiff’s harm, then the defendant is responsible for

the harm; a defendant cannot avoid responsibility just because some other person,

condition, or event was also a substantial factor in causing the plaintiff’s harm; but

conduct is not a substantial factor in causing harm if the same harm would have occurred

without that conduct.” (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187.)

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The multiple causes instruction set forth in “CACI No. 431 is necessary to explain

to the jury a ‘plaintiff need not prove that the defendant’s negligence was the sole cause

of plaintiff’s injury in order to recover. Rather it is sufficient that defendant’s negligence

is a legal cause of injury, even though it operated in combination with other causes,

whether tortious or nontortious.’ ” (Uriell v. Regents of University of California (2015)

234 Cal.App.4th 735, 747; see also Cooper v. Takeda Pharmaceuticals America, Inc.

(2015) 239 Cal.App.4th 555, 580; Logacz v. Limansky, supra, 71 Cal.App.4th at p. 1158.)

Thus, “where a defendant’s negligence is a concurring cause of an injury, the law regards

it as a legal cause of the injury, regardless of the extent to which it contributes to the

injury.” (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1317–

1318.)

Based on the foregoing principles of law, which are well established, we reject

Chevron’s argument that it was legal error to give instructions allowing the jury to award

damages for harm caused by Chevron’s conduct operating in combination with the

DOGGR orders to bring about the harm. A defendant need be a substantial factor, but

not the only factor, and the other factors causing injury need not be tortious themselves.

Further, once a defendant’s negligence has been found to be a substantial factor, the

defendant is responsible for the whole of the injury, until that defendant has proven what

portion of damages may be apportioned to other parties or non-parties. Accordingly, we

conclude the multiple causes instruction and the substantial factor instruction accurately

stated the law.

Next, we address the related argument made by Chevron’s counsel during the

posttrial JNOV hearing that there was a basis for the jury to apportion harm between

Chevron and the DOGGR orders. However, Chevron never argued apportionment of

liability to the jury. It is therefore unsurprising that the jury did not apportion damages

between Chevron and the DOGGR orders, once it found Chevron liable. While Chevron

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may have elected not to make this argument for strategic reasons at trial, that cannot be

attributed to any error on the part of the trial court. The instructions to the jury were

correct, directing it not to award damages for any item of harm to either party caused

solely by the DOGGR orders. If the DOGGR orders were the sole cause of all or a part

of the injuries, Chevron’s or TRC’s negligence could not have been a substantial factor in

causing those injuries.

3. The Superseding Cause Instruction Was Not Reversible Error

The parties have referred to the following instruction as the superseding cause

instruction and have characterized it as a modification of CACI No. 432: “Neither party

may be held liable for harms caused solely by the DOGGR orders alone.”16 The first

challenge to this instruction we consider is Chevron’s contention that the trial court

should have added context to the instruction by beginning it with the following sentence:

“A party’s liability does not extend to economic losses that result from the considered,

independent, discretionary actions of DOGGR.” We conclude the additional sentence

requested was not necessary to avoid instructional error.

Chevron’s proposed addition derived from page 17 of the trial court’s 22-page

tentative ruling dated July 12, 2021, which was issued following the initial severed phase

of the trial. There, the court set forth the general rule about a property owner’s duty to

16 CACI No. 432 is titled “Affirmative Defense – Causation: Third-Party Conduct as

Superseding Cause” and provides: [¶] “[Name of defendant] claims that [… it] is not

responsible for [name of plaintiff]’s harm because of the later misconduct of [insert name

of third party]. To avoid legal responsibility for the harm, [name of defendant] must

prove all of the following: [¶] 1. That [name of third party]’s conduct occurred after the

conduct of [name of defendant]; [¶] 2. That a reasonable person would consider [name of

third party]’s conduct as a highly unusual or an extraordinary response to the situation;

[¶] 3. That [name of defendant] did not know and had no reason to expect that [name of

third party] would act in a [negligent/wrongful] manner; and [¶] 4. That the kind of harm

resulting from [name of third party]’s conduct was different from the kind of harm that

could have been reasonably expected from [name of defendant]’s conduct.”

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exercise ordinary care in managing its property and then stated: “However, as a matter of

policy, Chevron’s liability does not extend to economic losses that result from the

considered, independent, discretionary actions of DOGGR at its headquarters made

remotely from events in the field.” This was merely a prefatory sentence providing

context for the court’s eventual order on page 22—that “Chevron may not be held liable

for TRC’s lost profits or other economic damages which arise solely as a result of the

DOGGR Orders.” (Italics added.) The prefatory sentence was part of the court’s

explanation of why its order was, in its view, correct. Chevron specifically requested this

order and then used the order as the basis for the superseding cause instruction.

Our analysis of Chevron’s contention that it was error to omit the additional

sentence is guided by the principle that a court “need only ‘give explanatory instructions

when terms used in an instruction have a technical meaning peculiar to the law

[citation].’ ” (People v. McLeod (1997) 55 Cal.App.4th 1205, 1216.) Here, the

superseding cause instruction given by the trial court stated the rule of law adopted by the

court in its order. None of the language in that instruction had a technical legal meaning

that needed further explanation or context. Accordingly, we conclude further explanatory

language was unnecessary.

Also, the additional explanatory language may have undermined the trial court’s

ruling by suggesting the jury could not hold Chevron liable if the DOGGR orders

contributed to TRC’s harms in any way, rather than only if the orders were the sole cause

of some or all of the items of TRC’s harm. While this is the argument Chevron wishes to

advance now, it is not the argument it advanced before and during trial.

Most importantly, this argument is contrary to California law, which holds “it is

sufficient that defendant’s negligence is a legal cause of injury, even though it operated

in combination with other causes, whether tortious or nontortious.’ ” (Uriell v. Regents

of Univ. of Cal., supra, 234 Cal.App.4th at p. 747, italics added; see part II.B.2., ante.)

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Therefore, the additional sentence proposed by Chevron was properly rejected since it

could be interpreted in a manner contrary to applicable law.

B. Substantial Evidence Supports the Verdict

Next, we consider Chevron’s arguments relating to the sufficiency of the evidence

raised below in Chevron’s motion for JNOV.

1. Standard of Review for Denial of JNOV

When a trial court denies a motion for JNOV, the applicable standard of review

depends on the type of issue raised on appeal. (Cleveland v. Taft Union High School

Dist. (2022) 76 Cal.App.5th 776, 802.) When an appellant challenges the sufficiency of

the evidence in support of the jury’s factual findings, the substantial evidence standard of

review applies. (Ibid.) Alternatively, when a challenge raises purely legal issues, the

independent standard of review applies. (Ibid.) Because Chevron has challenged the

sufficiency of the evidence and we have determined the jury instructions were correct, we

apply the deferential substantial evidence standard.

2. Substantial Evidence Supports Finding That Chevron Caused

Harm Independent of the DOGGR Orders

Chevron contends the jury should not have rendered the verdict it did, and should

have instead found the evidence was insufficient to show TRC was harmed by anything

other than the DOGGR orders. More particularly, Chevron maintains expert opinion

evidence was required to prove Chevron harmed TRC, and the harm was independent of

the DOGGR orders. Chevron is correct that components of the causation analysis here

were outside of the realm of commonplace experience of jurors, and as such, required

expert testimony. However, there was ample expert testimony in those areas where it

was necessary: namely, showing it was unsafe to engage in cyclical steaming in the area

and Chevron was the cause of the surface expressions that rendered such practices unsafe.

There were other components of causation—in particular, what motivated TRC, a

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corporate entity, to stop steaming—which required no expert testimony, and would have

been inappropriate for an expert to opine on.

At the outset, both parties agree the general conditions in the shared oil field were

unsafe for steaming between 2011 and 2015. Both filed complaints against the other

alleging the other party was responsible for the unsafe conditions. Both parties

referenced the unsafe conditions in their opening statements. Both parties referred to the

unsafe conditions in their closing arguments. No one has identified where in the record

either party introduced evidence that it was, in fact, safe to steam in this area during the

period in question.

Notwithstanding the absence of a dispute, substantive testimony was introduced at

trial about the conditions of the oil field and that those condition made it unsafe to steam.

For instance, Wayman Gore, a petroleum expert for Chevron, opined it was “unsafe to

conduct” cyclical steaming “within 800 feet of the Well 20 surface expression site.”

Gore noted any time steam was reaching the surface of an oil field, it created a dangerous

condition. Gore stated “neither Chevron nor TRC should have been steaming” within

800 feet of the Well 20 surface expression following the events of June and July 2011.

Other witnesses from both Chevron and TRC agreed with Gore’s testimony.

Richard Fortnum, Chevron’s thermal diatomite team supervisor, testified it was unsafe to

engage in cyclical steaming near Well 20. TRC’s operations manager, Todd Rogers,

testified TRC believed “there was a safety issue,” and imposed a no steaming radius

consistent with the DOGGR orders. Further, Charles Comfort, one of the owners of

TRC, testified the company completed a number of projects meant to ameliorate the

safety concerns, including a gabion wall, after which it sought to resume steaming based

on its belief it was safe to do so.

The trial court summarized the state of the evidence regarding safety in the oil

field during a colloquy with counsel outside of the presence of the jury addressing

whether Chevron had opened the door to testimony about the Chevron employee’s

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death. The court stated it would not allow testimony into the employee’s death,

noting Chevron’s extensive testimony about safety precautions “essentially

remove[s] safety as an issue in the court’s mind. Chevron says surface expressions

are a significant safety concern, and then TRC counsel Dylan Proctor made the point

in the bifurcated proceedings that it doesn’t take expert testimony to establish the

issue that it was unsafe to produce within an 800-foot radius, and that’s essentially

established in the evidence, nobody’s arguing it was safe.” Neither party disagreed

with the court’s statement, which is unsurprising because both parties’ affirmative

claims against each other necessarily relied on the fact that the conditions existing in

the oil field made it unsafe to cyclically steam.

Consequently, the main dispute at trial and on appeal is which party caused the

unsafe conditions to exist, TRC or Chevron. Competent expert evidence was introduced

by TRC that Chevron’s negligence caused the unsafe conditions to exist and caused the

harm to TRC. Gardner Walkup testified as an expert witness for TRC on the

reasonableness of Chevron’s operations and whether TRC had suffered harm due to

Chevron’s actions. He opined Chevron’s prior attempts to abandon Well 20 had failed,

which provided a pathway for steam and fluids injected into other wells to move laterally

through upper layers of the earth and form a surface expression. Walkup opined Chevron

was not appropriately managing the risks of cyclical steaming on its property. He

testified the French drain Chevron installed, Chevron’s injections of steam into Well

H235, and the generally compromised area surrounding Well 20 combined to cause the

high energy eruptions in the summer of 2011. Walkup also stated it was imprudent and

unreasonable to install the French drain where Chevron located it. Walkup also opined

that Chevron’s actions caused further eruptions in August 2011 and caused an

accumulation of fluids on TRC’s property, which harmed TRC. Ultimately, Walkup

concluded Chevron was the cause of the instability in the area being steamed and its

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actions were not prudent or reasonable.

TRC also called Charles VanAllen, another expert witness in cyclical steaming

and petroleum engineering. VanAllen testified Chevron’s wells had integrity problems,

which caused the Well 20 surface expression. Further, he commented Chevron had over-

injected the well with steam, and much of the liquid was being drained by TRC on a

regular basis. According to VanAllen, a prudent and reasonable operator would not have

installed the French drain the way Chevron did and would not have steamed nearby Well

H235, both of which were connected to the high energy eruptions during the summer of

2011.

Chevron introduced contradictory expert testimony from Gore and others

suggesting TRC was responsible for the unsafe conditions. However, it was the jury’s

responsibility to resolve the disputes between these experts, and the jury determined

TRC’s experts were more persuasive. The jury’s general verdict in favor of TRC

requires us to infer the jury found the testimony of TRC’s experts credible, an unsafe

condition existed, and Chevron’s negligence caused the unsafe conditions. Because the

opinions of TRC’s experts constitute substantial evidence that Chevron’s wrongdoing

caused the unsafe conditions, we must uphold the jury’s findings.

3. Substantial Evidence Supports the Jury’s Conclusion that

Chevron’s Actions were The Cause of TRC’s Cessation of Its

Steaming Operations.

Having decided which issues needed to be proven through expert testimony, we

next consider the remaining causation issue—that is, whether these unsafe conditions

harmed TRC, or whether TRC’s harms were caused by DOGGR ordering it to stop

steaming. In the latter case, DOGGR may have been a superseding cause of the harm,

which would absolve Chevron of liability. This issue requires us to consider what

motivated TRC to stop steaming: the unsafe conditions themselves or the DOGGR

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orders. If it was the former, the DOGGR orders were merely incidental and therefore did

not supersede the harm because TRC would not have steamed anyway. If it was the

latter, the jury was instructed to determine whether the DOGGR orders were the sole

cause of some or all of the items of harm.

Whether TRC decided to stop steaming because of the unsafe conditions or

because of the DOGGR orders presented an issue of fact for the jury to decide. This

question of motivation does not require expert testimony because a jury is well situated

based on common experience to fully evaluate the credibility of the witnesses testifying

to said motivation and determine whether the proffered motivations for a business

decision were genuine.17

Several TRC executives testified about the company’s motivation for ceasing its

cyclical steaming in 2011. Tracy Rogers, president and an owner of TRC, testified TRC

stopped steaming approximately 65 to 70 percent of its wells for “safety reasons.”

Rogers, the operations manager for TRC and Tracy’s brother, indicated TRC “shut in

some of our production in the area” as a result of the accidents that happened in the

summer of 2011. Todd Rogers testified that, after the initial events in June 2011, TRC

stopped steaming certain wells located close to the incident, but continued steaming wells

farther away. However, the eruptions in August 2011 caused TRC to stop steaming

nearly 60 percent of its wells, because it was “concerned about the safety of the

employees on our lease and the steaming in the area.” Todd Rogers commented that,

after DOGGR issued its orders, “TRC agreed with the DOGGR orders that there was a

safety issue involved with what had happened on the Chevron side of the property.”

17 The trial court recognized this, and in fact overruled an objection from Chevron’s

counsel that Tracy Rogers’ testimony about this reasoning was improper, noting, “I don’t

think it’s improper lay opinion. He’s president of the company. He’s saying why they

shut their operations down. He can be impeached and other evidence may impeach that

testimony.” This evidentiary ruling was not appealed by Chevron.

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Aaron Rhoten, TRC’s manager of asset development and a co-owner of one of the TRC

entities, testified TRC not only stopped steaming because it had to comply with the

DOGGR orders, but also because “it was unsafe to steam.” Comfort, TRC’s secretary,

treasurer, and co-owner, testified similarly, noting that following the June 2011 eruptions,

TRC stopped steaming some of its wells voluntarily, because it had “safety concerns.”

Comfort noted he agreed the DOGGR orders implementing a steam ban radius were

reasonable after the August 2011 eruptions, because of the safety concerns he had with

steaming.

Chevron impeached each of these witnesses’ testimony about TRC’s motivations.

Chevron questioned Tracy Rogers about whether TRC had ever considered imposing its

own steam bans prior to the month DOGGR ultimately ordered a ban on steaming.

Similarly, Todd Rogers was questioned about whether TRC had appealed the DOGGR

orders to stop steaming. Rhoten was questioned about whether the only reason TRC

stopped steaming was because of the DOGGR orders, and cross-examined about the

categories of damages TRC was seeking from Chevron. Comfort was asked at length by

Chevron about TRC’s failure to document in writing that it was ceasing steaming for

safety reasons and about whether its true motivation for stopping steaming and

conducting repair work was the DOGGR orders, as opposed to its safety concerns.

Additionally, Chevron cross-examined other witnesses, including TRC’s expert witnesses

VanAllen and Walkup, about whether TRC’s damages were solely caused by the

issuance of orders by DOGGR. Impeachment testimony from these witnesses’

depositions was read throughout each of the cross-examinations. Further, the

impeachment was repeatedly referenced in Chevron’s closing argument.

On appeal, Chevron contends these witnesses were “thoroughly impeached” by

their deposition testimony on what TRC’s motivations were. However, arguments that a

witness was impeached on a particular factual point do not support granting a motion for

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JNOV. (Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 343 [“When

presented with a motion for judgment notwithstanding the verdict, the trial court ‘cannot

weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the

evidence is conflicting or if several reasonable inferences may be drawn, the motion for

judgment notwithstanding the verdict should be denied. [Citations.]’ ”].) More generally,

appellate courts recognize they must accept a trier of fact’s express or implied findings

that some or all of a witness’s testimony is credible unless the testimony is incredible on

its face, inherently improbable, or wholly unacceptable to reasonable minds. (Nevarez v.

Tonna (2014) 227 Cal.App.4th 774, 786.)

The jury was presented with conflicting evidence regarding whether TRC’s

motivations for ceasing its steaming were due to safety concerns, or due to the DOGGR

orders. By awarding TRC the damages it requested and awarding Chevron nothing, the

jury impliedly found the testimony of TRC’s witnesses about the company’s motivation

was credible. Under the applicable appellate standard, we cannot conclude that testimony

was incredible on its face, inherently improbable, or wholly unacceptable to reasonable

minds. Therefore, we must accept the jury’s implied credibility findings. Based on those

credibility findings and the substance of the testimony offered, we conclude substantial

evidence supports the jury’s findings that the unsafe conditions, not the DOGGR orders,

caused TRC’s harm. (See Plastic Pipe & Fittings Assn. v. California Building Standards

Com. (2004) 124 Cal.App.4th 1390, 1407 [“uncorroborated testimony of one witness can

constitute substantial evidence, unless the testimony is inherently unreliable”].)

4. The DOGGR Orders Were Not, As a Matter of Law, the

Superseding Cause of TRC’s Harm

Our legal conclusion that the jury instructions on causation were proper and our

subsequent determinations that substantial evidence supported the jury’s finding on the

causation issues provide adequate grounds for rejecting Chevron’s argument that the

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DOGGR orders were, as a matter of law, the superseding cause of TRC’s harm.

Nonetheless, here we address Chevron’s argument from another perspective.

In its posttrial motions Chevron argued the DOGGR orders were a superseding

cause of TRC’s damages as a matter of law and did not present a jury question. Chevron

based this argument on language in the “Scope of Liability” section of the trial court’s

July 12, 2021 tentative ruling, where it stated: “For interrelated reasons, the court

determines as a matter of law that Chevron is not liable for TRC’s lost profits or other

economic damages which result solely from the DOGGR orders.” (Italics added.) This

sentence, however, is not reasonably interpreted as the trial court finding, as a matter of

law, that as a factual matter, TRC’s damages actually resulted solely from the DOGGR

orders. The court’s order, six pages later, stated that “the court adjudicates as a matter of

law that Chevron may not be held liable for TRC’s lost profits or other economic

damages which arise solely as a result of the DOGGR Orders.” (Italics added.) With

Chevron’s concurrence, this language was incorporated into the superseding cause

instruction given to the jury. At trial, both parties argued that solely meant “only

resulting from” the DOGGR orders. When the court denied Chevron’s motion for JNOV,

it stated that Chevron’s posttrial argument contradicted what Chevron argued at trial

when it treated superseding cause as a jury question. For purposes of this appeal, we

exercise our discretion to forego the arguments about Chevron forfeiting this issue or

inviting error, and resolve the merits.

As referenced above, case law defines a “superseding cause” as “an independent

event [that] intervenes in the chain of causation, producing harm of a kind and degree so

far beyond the risk the original [wrongdoer] should have foreseen that the law deems it

unfair to hold him responsible.” (In re Ethan C., supra, 54 Cal.4th at p. 641.) Put

another way, an intervening cause “is one that actively operates to produce harm after the

defendant’s negligent act or omission has been committed”; it then becomes a

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superseding cause if it is “highly unusual or extraordinary, not reasonably likely to

happen and, therefore, not foreseeable.” (Arreola v. County of Monterey (2002) 99

Cal.App.4th 722, 760.)

Whether something is a superseding cause usually is a question of fact. (Arreola

v. County of Monterey, supra, 99 Cal.App.4th at p. 760; see also Ballard v. Uribe, supra,

41 Cal.3d at p. 572, fn. 6; Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541,

1558 [“ ‘[F]oreseeability is question for the jury unless undisputed facts leave no room

for a reasonable difference of opinion,’ and ‘[t]hus, the issue of superseding cause is

generally one of fact.’ ”]; S. Cal. Edison Co. v. Harnischfeger Corp. (1981) 120

Cal.App.3d 842, 853.) Many cases, however, hold that where the facts are susceptible of

only one reasonable interpretation, superseding causation becomes a question of law.

(E.g., Arreola v. County of Monterey, supra, 99 Cal.App.4th at p. 760; Brewer v. Teano

(1995) 40 Cal.App.4th 1024, 1035 (Brewer).) Chevron relies on cases where the

appellate court determined as a matter of law that a superseding cause existed and argues

we can reach the same determination in this case.

Chevron’s argument is based primarily on a California Supreme Court case that

suggests a special exception to the typical “foreseeability” approach to superseding

causes where the defendant sought permission from a court before causing the alleged

injury. In Manta Management Corp. v. City of San Bernardino (2008) 43 Cal.4th 400

(Manta), the city enacted an ordinance prohibiting the operation of adult businesses in

“regional commercial” zones, but permitting them in heavy commercial or light industrial

zones. (Id. at pp. 403–404.) Manta opened a comedy club in a regional commercial

zone, but after approximately six months of operation, turned it into an adult cabaret. (Id.

at p. 404.) Manta was therefore out of compliance with the city’s ordinance, but did not

cease its operations; instead, it continued operating as an adult cabaret until the city filed

a lawsuit and obtained a preliminary injunction preventing it from doing so. (Id. at pp.

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404–405.) More than a year later, the trial court dissolved the preliminary injunction,

having found the ordinance was an unconstitutional infringement on Manta’s First

Amendment right to free speech. (Id. at p. 405.) The city appealed and was granted a

writ of supersedeas pending appeal, thereby continuing Manta’s inability to operate its

adult business. (Ibid.) The Court of Appeal eventually affirmed the trial court’s decision

to dissolve the preliminary injunction and vacated the writ of supersedeas, allowing

Manta to resume operations. (Ibid.)

The parties then proceeded to trial on Manta’s cross-complaint filed in the original

enforcement action, which included a claim under 42 United States Code section 1983

seeking damages against the city for enacting and enforcing an unconstitutional

ordinance. (Manta, supra, 43 Cal.4th at p. 405.) The trial was bifurcated into a court

trial on liability and a jury trial on damages. (Ibid.) The trial court held during the

liability phase “that the acts of ‘precipitating’ the preliminary injunction and stay were an

effort to enforce an unconstitutional zoning ordinance,” and could serve as a basis for a

section 1983 claim. (Manta, supra, at p. 405.) The trial court notably “did not find that

the city’s ordinance itself was a basis for section 1983 liability.” (Ibid.) The jury

awarded Manta $1.4 million in damages for profits lost while the injunction was in effect.

(Ibid.) The city appealed, claiming it “could not be liable for damages under

section 1983 because it had sought redress through the courts.” (Ibid.) The Court of

Appeal affirmed the judgment, holding the city’s reliance on the trial court’s issuance of

the preliminary injunction did not provide it with immunity. (Id. at pp. 405–406.)

The Supreme Court granted review and reversed. Analyzing the section 1983

cases, the court noted that the law concerning causation in such cases typically follows

the common law of torts, because section 1983 provides a cause of action but does not

itself set forth substantive law dictating what claims may be brought. (Manta, supra, 43

Cal.4th at pp. 407–408.) The court observed it was not considering whether the

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ordinance itself could serve as a basis for section 1983 liability, but rather only whether

the acts of enforcement could: “[T]he ordinance caused Manta no harm because Manta

did not abide by it. Manta suffered no monetary damages until the trial court enjoined its

operating an adult cabaret where its comedy club had been located. The issue before us

is whether the city’s act of seeking an injunction to enforce the ordinance dealing with

the location of adult businesses and its subsequent act of filing a petition for writ of

supersedeas to obtain a stay pending appeal ‘caused’ the harm suffered by Manta to the

extent that the city is liable for damages Manta incurred during the 53 months the

injunction and the stay were in place.” (Manta, supra, at p. 407.) Thus, the question was

not one of immunity, as the Court of Appeal had thought, but rather one of causation,

namely, whether the specific acts of enforcement could be a legal cause of the injury

suffered. (Id. at p. 408.)

The Supreme Court discussed the history of section 1983 law, noting numerous

instances where municipalities had been liable for damages for unconstitutional

ordinances in various contexts, but observing none involved “a situation in which a court

sanctioned the city’s enforcement of its ordinance before the ordinance was found to be

unconstitutional.” (Manta, supra, 43 Cal.4th at pp. 408–409, italics added.) It then

reviewed cases from the Second, Third, Fifth, and Eleventh Circuit Courts of Appeal, as

well as the Michigan Court of Appeals, all of which held that, where a civil plaintiff or a

criminal prosecutor had made an application to a court—either for an injunction or to

hold a defendant to answer—and had presented accurate information to the court, that

party and its agents could not be held liable for damages arising because the court granted

the application, whether in the form of an injunction or a criminal charge. (Id. at pp.

409–411.) This was because the court’s neutral evaluation of admittedly accurate facts

broke the chain of causation between the alleged wrongdoing (i.e., the enforcement of an

unlawful ordinance or an illegal search-and-seizure leading to arrest) and the damages

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suffered—that is, lost profits following an injunction or damages related to a subsequent

criminal trial and incarceration. (Ibid.) Ultimately, our Supreme Court held, “where a

court is provided with appropriate facts to adjudicate a motion for preliminary injunction

or a motion for a stay pending appeal, the courts’ intervening exercise of independent

judgment breaks the chain of causation for purposes of section 1983 liability.” (Id. at p.

412.) It also adopted an exception where “the judicial officer reached an erroneous

decision as a result of being pressured or materially misled as to the relevant facts.”

(Ibid.)

The question presented, therefore, is whether the DOGGR orders, like the

preliminary injunction and writ of supersedeas issued in Manta, break the causal chain.

We conclude the facts of Manta are readily distinguishable from the facts surrounding the

DOGGR orders. Setting aside the question of whether the holding of Manta can be

extended to a government decisionmaker other than a court,18 a critical feature of Manta

is that no injurious event occurred before one party (the city) sought the intervention and

independent decision-making of the neutral third party (the court). Manta suffered no

harm at all—because it was ignoring the ordinance and pursuing its business—until the

trial court issued an injunction against it. Other California cases have held similarly,

where no injury was alleged to have arisen until after an independent third-party had

sanctioned the activity in question. (See Novick v. City of Los Angeles (1983) 148

Cal.App.3d 325, 331–334 [no damages sought for unlawful search, but rather only for

18 Both Manta itself and most of the cases it relied on involved situations in which

the prosecutor or government agency successfully applied to a court, either for an

injunction or to hold a defendant to answer for a criminal charge, and the alleged

damages arose after the court had granted the injunction or held the defendant to answer.

It is not obvious the same assumption of independence applies where the decisionmaker

is not a third-party neutral adjudicator of disputes, but rather an administrative agency

such as DOGGR, which is charged with enforcement of certain statutes and regulations.

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criminal prosecution stemming from unlawful search, for which intervening prosecution

decision broke chain of causation].)

Here, the circumstances are not analogous because Chevron did not request that

DOGGR issue a shut-down order before the eruptions of steam and oil on its property

damaged TRC’s property, killed one of C

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