COUNSEL:

Fadem, Berger & Norton and Michael M. Berger for Plaintiffs and Appellants.

Goebel & Monaghan, Louis E. Goebel, Luce, Forward, Hamilton & Scripps, Eckmann, Lodge & Gatzke and Michael Scott Gatzke for Defendant and Respondent.

TAMURA, J. [FN*]

[FN *] Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

In a consolidated trial, a nonsuit was granted on the cause of action based on the alleged lack of a valid permit and the case was submitted to the jury on the inverse condemnation cause of action as to all plaintiffs and on the cause of action for personal injuries and emotional distress as to six of the plaintiffs. The jury returned special verdicts for defendant on all counts, finding that the value of the easements allegedly taken over plaintiffs' properties was zero dollars and that plaintiffs had suffered no damages by reason of defendant's actions. Plaintiffs' motion for a new trial was denied and they appeal from the judgment on the jury verdict.

Plaintiffs' primary contention on appeal is that they were deprived of a fair trial by reason of jury misconduct. Their other contentions relate to evidentiary rulings and claimed instructional errors.

Subject to amplification when we consider the specific issues, the following summary of the pertinent facts will suffice to place the issues in their proper setting:

The county operates the airport under an "Airport Permit" issued by the California Aeronautics Commission in 1949. Until the middle 1960's only propeller-driven aircraft used the airport; its sole runway was 4,800 feet long and would bear a weight of only 12,500 pounds. In 1964 or 1965 the old runway was discontinued and two new ones were built -- a 5,700-foot runway able to bear 67,000 pounds and thus suitable for jet aircraft, and a shorter runway for conventional propeller-driven planes. The new runways extend in a southerly direction, while the old one ran southwest.

In 1967 commercial jets began using the airport. Initially there were only four such flights a day but the number increased steadily over the years so that at the time of trial there were forty-one scheduled flights a day. In the early 1970's small jets used for training, for charters, and by business corporations began using the airport. At first there was only occasional usage by transient small jets; by 1977, however, at least two aviation companies with fleets of small jets (four to eight planes) were operating at the airport, and a number of business corporations based their company jets there. In 1977 small jet traffic at the airport averaged 15 flights per day.

Plaintiffs are homeowners whose residences are located south of the airport. All of plaintiffs' homes are in a geographic area which airport officials have designated a "noise sensitive area." According to the airport's definition, noise sensitive areas are residential areas which lie "under or near the flight tracks" of jet aircraft using the airport.

Trial lasted over three months. The jury heard testimony from three expert witnesses concerning the devaluation of plaintiffs' homes resulting from jet noise and fallout. Plaintiffs' appraiser testified that all of plaintiffs' homes had suffered substantial diminution in value due to jet traffic. The county presented two appraisers. One testified that none of the homes had suffered loss in value because of the jets. The other was of the opinion that jet noise and fallout caused nine of the homes to suffer loss in value ranging from $5,500 to $7,000 for seven, $10,500 for one, and $50,000 for one. The jury viewed most of the subject homes during field trips on four separate days.

The court excluded testimony on three matters offered by the six plaintiffs who pursued the tort cause of action for damages for personal injuries and emotional distress. The court excluded evidence concerning emotional disturbance allegedly caused by aircraft in flight. It also sustained the county's objection to plaintiffs' offer to prove that certain measures could have been taken by the county to alleviate the noise problem at the airport (e.g., extension or varying of curfew hours; enforcement of existing curfew; banning private jets, jet taxis, or jet aircraft flight instruction; installing noise limitation system). Finally, the court excluded evidence concerning alleged assurances by the county board of supervisors in 1962 that no jets would use the airport, and in 1967 that there would be no jet noise problem. Plaintiffs maintained that the supervisors' failure to live up to those assurances contributed to plaintiffs' emotional disturbance.

On the inverse condemnation cause of action, the court refused plaintiffs' requested instruction that the jury should determine the value of the "loss of use" of plaintiffs' homes from September 1967 (when jets began using the airport) to May 8, 1978, (the date of value). [FN 1] As to the personal injury cause of action, the court instructed the jury that it could not award damages for physical injuries or emotional distress resulting from aircraft in flight. [FN 2]

[FN 1] The refused instruction provided: "You are to determine the value of the loss of use of the homeowners' properties from September, 1967, to May 8, 1978.

"In determining the value of that lost use you may consider all interference with the enjoyment of one's homes and outdoor areas for the shelter, comfort, security, communication, rest, sleep and freedom from fallout which you decide the homeowners have lost."

[FN 2] The instruction given provided: "As to each of the theories of negligence, nuisance, and trespass, you are instructed that you may not award damages for emotional distress and/or physical injuries resulting from aircraft in flight. You may award damages, if any, for emotional distress and/or physical injuries which are the proximate result of the operation and management of Orange County Airport, exclusive of the effects of aircraft in flight, under the three theories described."

Plaintiffs contend that there were incidents of flagrant juror misconduct which deprived them of a fair trial and that the court abused its discretion in denying them a new trial on that ground. They also contend that the court erred in refusing to instruct the jury that they should value and award damages for plaintiffs' "loss of use" of their properties from September 1967 to May 1978. (See fn. 1, ante.)

The six plaintiffs who sought damages for personal injuries and emotional disturbance raise three additional contentions. First, they contend the court erred in instructing the jury that they may not award damage for physical injuries or emotional distress resulting from aircraft in flight (see fn. 2, ante). Second, they maintain they should have been allowed to introduce evidence concerning measures which the county might have taken to alleviate the disturbances caused by jet aircraft. Third, they contend the court erred in excluding evidence of misrepresentations made by county supervisors concerning jet use of the airport.

The four plaintiffs who alleged a cause of action based on defendant's alleged failure to obtain a valid airport permit challenge the correctness of the order granting the county's motion for nonsuit on that cause of action.

In the ensuing discussion we have concluded that the entire judgment, except as it pertains to the cause of action based on an alleged lack of a valid airport permit, must be reversed for jury misconduct. We have further concluded that the judgment on the personal injury and emotional distress cause of action must also be reversed for the rendition of the instruction that noise from jet aircraft in flight could not be considered and for certain evidentiary rulings.

Preliminarily, we review the principles governing proof of jury misconduct and the evaluation of its prejudicial effect. "Trial by jury is an inviolate right and shall be secured to all ...." (Cal. Const., art. I, s 16.) (1)The right to unbiased and unprejudiced jurors is an "inseparable and inalienable part" of the right to jury trial. (People v. Hughes (1961) 57 Cal.2d 89 [17 Cal.Rptr. 617, 367 P.2d 33]; People v. Galloway (1927) 202 Cal. 81, 92 [259 P. 332].) The guarantee is the right to 12 impartial jurors. (Smith v. Covell (1980) 100 Cal.App.3d 947, 955 [161 Cal.Rptr. 377]; Clemens v. Regents of University of California (1971) 20 Cal.App.3d 356, 360 [97 Cal.Rptr. 589].) [FN 3] Subject to the restrictions of Evidence Code section 1150, a juror's affidavit may be used to impeach a verdict. [FN4] The statements made, or conduct, conditions or events relied upon as constituting misconduct must be objectively ascertainable and subject to corroboration. (People v. Hutchinson (1969) 71 Cal.2d 342, 349-350 [78 Cal.Rptr. 196, 455 P.2d 132].) A verdict may not be impeached by an affidavit purporting to prove the subjective reasoning process of a juror which can neither be corroborated nor disproved. (Id., at p. 349.)

[FN 3] In civil cases the parties may, of course, agree in open court to a trial by a jury composed of a lesser number. (Cal. Const., art. I, s 16.)

[FN 4] Evidence Code section 1150 provides: "(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.

"(b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict."

In civil cases a motion for new trial grounded on jury misconduct must be presented by affidavit. (Linhart v. Nelson (1976) 18 Cal.3d 641, 644-645 [134 Cal.Rptr. 813, 557 P.2d 104].)

[FN 5] Code of Civil Procedure section 657 provides that a new trial may be granted "for any of the following causes, materially affecting the substantial rights of such party: [P] 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial."

In support of the charges of misconduct in this case, plaintiffs submitted declarations of two jurors, forewoman Benz and Mrs. Dague, describing numerous incidents of alleged juror misconduct which we have summarized in the margin below. [FN 6] Defendants submitted nine juror declarations summarized below either denying that certain of the incidents reported by jurors Benz and Dague occurred or attempting to explain those which were admitted to have occurred. [FN 7] Plaintiffs subsequently filed supplemental rebuttal declarations summarized below which described four alleged instances of misconduct not previously reported and refuted other jurors' descriptions and explanations of incidents reported earlier. [FN 8]

[FN 6] Juror Benz declared:
(a) Juror O'Neil, when visiting properties, said one home was not worth $90,000-compared it to his own home. Juror Cleverly nodded agreement.
(b) Unidentified juror said the plaintiffs already have enough money.
(c) Juror DeHaven said "This whole thing is a big farce."
(d) Many jurors commented after first viewing of homes that noise was not bad.
(e) Juror O'Neil came to court "hungover" twice during deliberations.
(f) Jurors Potter and DeHaven voluntarily separated themselves from other jurors during deliberations, sitting in an anteroom and refusing to participate in deliberations.
(g) Juror DeHaven colored in coloring books and played solitaire on several occasions during deliberations.
(h) Juror Kincaid offered to change her vote during recapitulation when it did not agree with the votes of others.

Juror Dague corroborated (a), (b), (c), (d), (f), (g), (h) of Benz's declaration. She also stated:
(1) Juror Kincaid asked why plaintiffs needed money (apparently a rhetorical question) on one occasion while leaving jury box.
(2) Juror O'Neil said "S.O.S.-same old shit" while going through a house and repeated comment on visiting other properties.
(3) Juror Cleverly commented "S.O.S.-same old stuff" in a similar situation.
(4) Juror O'Neil told her on bus returning from first property viewing that Juror Kincaid had said that if jury deliberated at that point they would be done in 10 minutes.
(5) Juror DeHaven said during deliberations that some of the "runup" noise was from generators, not from jet airplanes (no evidence presented on generators).
(6) Juror DeHaven said he had talked with a real estate broker who told him the $20,000 mark down from the asking price on one plaintiff's house was not unusual.
(7) Juror Kincaid said she had discussed the trial with her husband, though he had not tried to tell her what to do.
(8) Juror Kincaid said she had talked with a friend in real estate who had told her it was not unusual for a house to be on the market for a number of months.

[FN 7] Seven jurors remembered the "runup," generator comment, but all agreed that they had been aware it was not evidence and had not considered it in their discussions. Seven jurors stated Potter or Potter and DeHaven had spent some time in anteroom, but all agreed they could still hear the deliberations and participate in votes. Most jurors did not hear other jurors' reported comments during course of trial. The jurors reported to have made comments either denied them or explained that the comments were not meant to express opinions on evidence.

[FN 8] Juror Dague declared:
(a) DeHaven and O'Neil talked about generators as cause of "runup" noise for more than one-half hour.
(b) Mrs. Cleverly commented when seeing sewing project on visit to a home "Really, as if they need to."
(c) Matters were discussed when Mrs. Potter was in the restroom for protracted periods and she voted on them when she returned.

Juror Benz declared:
(a) DeHaven pursued generator topic for more than one-half hour.
(b) DeHaven might not have heard deliberations when in anteroom because she had to call loudly to get his attention for a vote.
(c) When Mrs. Potter was in restoom they had to knock loudly on the door to get her attention to vote.
(d) Juror Kincaid said she was voting for no emotional disturbance award because "People can't tell the generator noise from the runup noise."

Juror Oldmen declared:
(a) Many jurors commented after first visit to homes that noise was not bad.
(b) Mr. DeHaven said whole thing was a farce.
(c) DeHaven made the generator noise argument during deliberations.
(d) Potter once refused to rejoin other jurors when she was in anteroom and was asked to return.
(e) Two or three times DeHaven refused request to rejoin other jurors when he was in anteroom.
(f) DeHaven and Potter colored in coloring books during deliberations.
(g) Mrs. Kincaid did offer to change vote if others wanted her to.
(h) Mrs. Kincaid mentioned her real estate friend's comments on length of time a house might be on market during deliberations.
(i) Mrs. Kincaid said she talked with her husband about trial but he did not try to tell her what to do.

Juror Breckenridge who had been excused during trial stated: In a conversation with Juror Cleverly while returning from a field trip to inspect properties, Cleverly said visiting properties hurt plaintiffs' case because the noise was not bad.

[FN 9] For example, we could place in the category of trivial the charge that two of the jurors colored in coloring books and one played solitaire on several occasions during deliberations. The same may be said of the charge that during deliberations juror Potter occasionally sat in the anteroom adjacent to the jury room because she was ill and needed to be near the restroom. According to the counterdeclaration, she was able to hear and participate in the deliberations.

[FN 10] The incidents were as follows: Juror O'Neill admitted that on one of the fields trips to inspect the home, he made the earthy remark: "S.O.S. - same old shit." He also admitted commenting that one of the houses was not worth $90,000 because his house which was better was not worth that much. Juror Kincaid admitted she talked to her husband about the trial but stated she neither sought nor received his view of the case. Also, during the deliberations, she commented that her realtor friend told her it was not unusual for a house to be on the market for several months.

[FN 11] In Deward v. Clough, supra., 245 Cal.App.2d 439, on the last day of trial before arguments had been completed and the jury instructed, as the jurors came out of the courtroom and headed for the jury room but found it locked, one juror said to several others: ""'I don't see why they don't open up the jury room now. We could bring in a verdict already. ""' The jurors who were present all laughed. The reviewing court held that the statement showed that the juror had prejudged the case; that this "was misconduct and it was serious." (Id., at p. 444.) The court concluded that the misconduct resulted in an unfair trial and that the failure of the trial court to grant a new trial was prejudicial error.