Also, during the deliberations, Juror DeHaven reported that a real estate broker had told him that the $20,000 mark down on plaintiff Duncan's house was not unusual. DeHaven also said that some of the ground noise of which plaintiffs complained was not "runup" noise but was "starter generator noise." There had been no evidence on starter generator noise. DeHaven admits discussing the matter but says it was done only "casually." Declarations of jurors filed in rebuttal which were uncontradicted, however, state that DeHaven discussed the subject of starter generator noise for more than a half hour despite requests that he desist because there was no evidence on the subject. Communication to fellow jurors of information on an issue under litigation except in open court and in the manner provided by law constitutes misconduct. (People v. Lessard (1962) 58 Cal.2d 447, 454 [25 Cal.Rptr. 78, 375 P.2d 46]; Smith v. Covell, supra., 100 Cal.App.3d 947, 952-953; People v. Southern Cal. Edison Co. (1976) 56 Cal.App.3d 593, 598 [128 Cal.Rptr. 697]; People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal.App.2d 378, 390 [63 Cal.Rptr. 138]; Kritzer v. Citron, supra., 101 Cal.App.2d 33, 36.) Declarations from other jurors stated that everyone "appeared to agree" that they could not properly consider DeHaven's comments on generator noise and that his statements played no part in the declarants' consideration of plaintiffs' claims. However, declarations concerning the effect DeHaven's comment had on a juror in influencing him or her to assent to or dissent from the verdict is inadmissible. (Evid. Code, s 1150.)

Finally, during deliberations Juror DeHaven separated himself from the others after an angry exchange with forewoman Benz and sat in a small anteroom adjacent to the jury room. One juror said that this occurred several times. DeHaven said it occurred once for about 15 minutes and that during that period he was able to hear the deliberations and participate in the voting. Three of the jurors, however, said DeHaven refused to reenter the jury room to deliberate when his presence was requested and the foreperson said she had to shout to get his attention to vote. A refusal to deliberate constitutes misconduct; the parties are entitled to the participation of all 12 jurors. If this were the only act of misconduct we would not deem it of sufficient consequence to affect the fairness of the trial. Bearing in mind the fact that the deliberations extended over a period of eight days, it would not have been unusual for tempers to flare occasionally. However, DeHaven's conduct during deliberations must be reviewed along with his other acts of misconduct in determining their prejudicial effect.

The acts of misconduct committed by juror DeHaven during the trial and deliberations reinforce our earlier evaluation of the import of his statement: "This whole thing is a big farce." The series of misconduct indicate his prejudgment of the case as well as possible concealment of bias on voir dire and deprived plaintiffs of a fair trial. The jury polling sheets show that the zero damage verdicts on the inverse condemnation cause of action as to nine of the homes involved was nine to three and that Juror DeHaven voted with the majority on all parcels including the nine. [FN 12] As we noted earlier, one of the county's two appraisers testified that nine of the houses suffered damages ranging from $5,500 to a high of $50,000. Significantly, the vote on seven of those nine houses was nine to three. Manifestly, on the nine-to-three verdicts, disqualification of any one juror who voted with the majority would have resulted in a different verdict and caused prejudice. (Weathers v. Kaiser Foundation Hospitals, supra., 5 Cal.3d 98, 110; Clemens v. Regents of University of California, supra., 20 Cal.App.3d 356, 366-367; cf. People v. Pierce, supra., 24 Cal.3d 199, 208; People v. Honeycutt, supra., 20 Cal.3d 150, 158.)

[FN 12] We augmented the record on appeal on our own motion to add the jury polling sheets.

Based upon a review of the entire record, including the evidence, we are of the opinion that jury misconduct resulted in a miscarriage of justice and requires a new trial as to all plaintiffs as to all causes of action, except as to the cause of action based upon an alleged lack of a valid airport permit. We realize that this sets at naught the fruits of an extended and costly trial. However, the cost of a new trial is a small price to pay for the vindication of the constitutional right to a trial by a fair and impartial jury, particularly where the issue at stake is whether the government has unreasonably intruded upon the rights of its people.

Although the judgment as to the inverse condemnation cause of action must be reversed for jury misconduct, we address one other contention concerning that cause of action because of the likelihood the issue will arise on retrial.

Plaintiffs argue that they were entitled to have the court instruct the jury that they were to determine the "value of the loss of use of the Homeowners' properties from September, 1967, [when commercial jets began using the airport] to May 8, 1978 [the date of value for most parcels]." (See fn. 1, ante, for text of the requested instruction.) Plaintiffs contend the requested instruction was designed to enable the jury to award them Klopping damages (Klopping v. City of Whittier (1972) 8 Cal.3d 39 [104 Cal.Rptr. 1, 500 P.2d 1345]) for loss of use and enjoyment of their properties for the period prior to the date of value, citing Stone v. City of Los Angeles (1975) 51 Cal.App.3d 987 [124 Cal.Rptr. 822], and City of Los Angeles v. Monahan (1976) 55 Cal.App.3d 846 [127 Cal.Rptr. 763].

The doctrine enunciated in Klopping v. City of Whittier, supra., 8 Cal.3d 39, permits recovery of damages either in an inverse or direct condemnation action for diminution in market value of property resulting from "unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation ...." (Id., pp. 52, 58.) Recovery of Klopping damages in addition to the fair market value of the property condemned does not result in double recovery for the same loss. (Stone v. City of Los Angeles, supra., 51 Cal.App.3d 987, 993-994; City of Los Angeles v. Monahan, supra., 55 Cal.App.3d 846, 852.)

Here, however, there was no allegation or proof that the county had engaged in any precondemnation activity much less unreasonable precondemnation conduct. Plaintiffs' inverse condemnation cause of action was based entirely on the claim that the county had damaged and diminished the market value of their homes by subjecting them to jet overflight, fallout, and excessive noise from take offs and landings. Such damages are manifestly of a different character than damages from precondemnation activity. "The municipal owner and operator of an airport is liable [in inverse condemnation] for a taking or damaging of property when the owner of property in the vicinity of the airport can show a measurable reduction in market value resulting from the operation of the airport in such manner that the noise from aircraft using the airport causes a substantial interference with the use and enjoyment of the property, and the interference is sufficiently direct and sufficiently peculiar that the owner, if uncompensated, would pay more than his proper share to the public undertaking." (Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471, 483-484, 493 [115 Cal.Rptr. 162]; italics supplied.) A municipality is not liable where the interference is so insubstantial that it does not result in a measurable diminution of the market value of the property. It must also be borne in mind that the requested instruction only pertained to a claim for damage to property, not to a claim for damages for personal injuries or emotional distress which was sought by only six of the plaintiffs.

Stone v. City of Los Angeles, supra., 51 Cal.App.3d 987, and City of Los Angeles v. Monahan, supra., 55 Cal.App.3d 846, lend no support to plaintiffs' contention. Both cases involved Klopping damage claims for precondemnation activity. In Monahan the Court of Appeal upheld the trial court's implied determination that the homes had not suffered Klopping damage and distinguished Stone where the property owners recovered such damage. The Monahan court pointed out that in Stone the owners were prevented from making profitable use of their income property because of the threatened condemnation action whereas the claimed diminution in market value of the residential properties in Monahan was due entirely to the adverse effect of jet operations at the Los Angeles International Airport and not to any delay in bringing the condemnation actions.

The trial court properly refused to give the requested instruction that the jury determine "the value of the loss of use of the homeowners' properties from September 1967, to May 8, 1978." [FN 13]

[FN 13] The instruction was obviously designed to permit recovery of damages for alleged interference with use and enjoyment of the home from the time the jets first commenced using the airport. If the jury had awarded compensation to plaintiffs for the taking of an avigation easement over their properties, they would have been entitled to prejudgment interest on the award from the date the cause of action arose absent any statute of limitations problem. (Former Code Civ. Proc., s 1255b, subd. (a)(2), new Code Civ. Proc., s 1268.310; Parker v. City of Los Angeles (1974) 44 Cal.App.3d 556, 564-565 [118 Cal.Rptr. 687]; Riverside County Flood etc. Dist. v. Halman (1968) 262 Cal.App.2d 510, 514-515 [69 Cal.Rptr. 1].) It is only when flights substantially interfere with use and enjoyment of property and result in a diminution of market value that the cause of action arises. (Aaron v. City of Los Angeles, supra., 40 Cal.App.3d 471, 492; Smart v. City of Los Angeles (1980) 112 Cal.App.3d 232 [169 Cal.Rptr. 174].) This depends on the evaluation of such factors as "the frequency and level of the flights; the type of planes; the accompanying effects, such as noise or falling objects; the use of the property; the effect on values; the reasonable reactions of the humans below; and the impact upon animal and vegetable life." (Jensen v. United States (1962) 305 F.2d 444, 447 [158 Ct. Cl. 333], quoted in Aaron v. City of Los Angeles, supra., 40 Cal.App.3d 471, 491-492.) The question as to when property has been taken or damaged so as to entitle the property owner to prejudgment interest presents a mixed question of fact and law to be determined by the trial judge. (Aaron v. City of Los Angeles, supra., 40 Cal.App.3d 471, 484; Riverside County Flood etc. Dist. v. Halman, supra., 262 Cal.App.2d 510, 516-517.)

The judgment for defendant on the cause of action pled by six of the plaintiffs for personal injuries and emotional distress must be reversed not only for jury misconduct but for the additional reasons expressed below.

The six plaintiffs contend the court erred in excluding evidence concerning noises from aircraft in flight and in instructing the jury that "you may not award damages for emotional distress and/or physical injuries resulting from aircraft in flight." (For full text of the instruction, see fn. 2, ante.) The trial court's ruling and instruction were based upon San Diego Unified Port Dist. v. Superior Court (1977) 67 Cal.App.3d 361 [136 Cal.Rptr. 557], cert. den. sub nom., Britt v. San Diego Unified Port Dist. (1977) 434 U.S. 859 [54 L.Ed.2d 132, 98 S.Ct. 184]. In that case the Court of Appeal declared that an owner or occupier of property adjacent to an airport "may not recover tort damages from the [airport proprietor] for harm caused by aircraft in flight" because regulation of aircraft in flight was preempted by the federal government. (Id., at p. 376.)

Following entry of the judgment in this case, our Supreme Court decided Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86 [160 Cal.Rptr. 733, 603 P.2d 1329], cert. den. sub nom., City of Los Angeles v. Greater Westchester Homeowners Association (1980) 449 U.S. 820 [66 L.Ed.2d 22; 101 S.Ct. 77] in which the court squarely held that a proprietor of an airport is not immune from liability for personal injuries and emotional distress caused by noises emanating from aircraft in flight. (Id., at pp. 93, 100.) The court reasoned that while airport proprietors may not regulate aircraft in flight, they "do retain responsibility for the proper construction, operation and maintenance of ground facilities, and for land use planning designed to minimize the effects of noise" (id., at p. 97) and have the power "to impose airport use restrictions to the extent that they are reasonable and nondiscriminatory." (Ibid.) The court noted that such power was expressly recognized by the United States Supreme Court in City of Burbank v. Lockheed Air Terminal (1973) 411 U.S. 624, 635, fn. 14 [36 L.Ed.2d 547, 555, 93 S.Ct. 1854, 1862], where the high court said: "'Airport owners acting as proprietors [italics in original] can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory."' (Accord: San Diego Unified Port Dist. v. Gianturco (S.D.Cal. 1978) 457 F.Supp. 283, 291, affd. (9th Cir. 1981) 651 F.2d 1306.)

The Westchester court thus found no reason in law or policy why the common law and statutory remedy of nuisance should not be available to protect owners or occupiers of property adjacent to an airport from personal harm. Respecting the city's role in the establishment and maintenance of the Los Angeles International Airport, the court observed: "We find significance in the depth and continuous nature of City's involvement in the creation and maintenance of the nuisance in question. City concedes that it, and not the federal government, decided to build and then to expand the airport in the immediate vicinity of a residential area. It is undeniable that City chose the particular location and direction of the airport runways. It approved their usage by jet aircraft. It entered into service agreements with commercial air carriers all with full and prior knowledge of the potential noise impact. (See City of Los Angeles v. Japan Air Lines Co., Ltd. (1974) 41 Cal.App.3d 416, 419-422 [116 Cal.Rptr. 69].)" (Greater Westchester Homeowners Assn. v. City of Los Angeles, supra., 26 Cal.3d 86, 98.)

Westchester thus makes it clear that an action for damages for personal injuries and emotional distress caused by noise from aircraft in flight is not federally preempted. (Smart v. City of Los Angeles, supra., 112 Cal.App.3d 232, 239.) To the extent that the San Diego Unified Port Dist. v. Superior Court, supra., 67 Cal.App.3d 361, held that an airport proprietor was immune from liability for personal injuries and emotional distress caused by noise from aircraft in flight, it was necessarily superseded. (Greater Westchester Homeowners Assn. v. City of Los Angeles, supra., 26 Cal.3d 86, 97.) Evidence concerning noise of aircraft in flight should not have been excluded and the jury should not have been instructed that damages could not be awarded for personal injury or emotional disturbance resulting from aircraft in flight.

Plaintiffs' expert acoustician, Mr. Veneklasen, was asked to detail the "specific actions which, in your opinion, by changes in the method of operating this airport, noise reduction could be accomplished and has not been." Following the county's objection to the question, plaintiffs offered to prove through the expert that the county could have taken the following actions to alleviate the jet noise problem at the airport: Extend the curfew generally; vary the curfew (e.g., to permit more sleep on Sunday morning); ban private jets; ban jet taxis; ban jet aircraft sales; ban jet aircraft flight instruction; install a meaningful system to enforce noise limits; and restrict jet aircraft to those that satisfy part 36 of the federal air regulations. The court sustained the county's objection to the offer of proof.

Plaintiffs contend that the proffered evidence should not have been excluded. We agree. The types of corrective action described in the offer of proof, if shown to be reasonable and nondiscriminatory, are within the power of an airport proprietor to adopt and implement in order to mitigate the consequences of aircraft noise. (Greater Westchester Homeowners Assn. v. City of Los Angeles, supra., 26 Cal.3d 86, 97-100.)

On a related matter plaintiffs complain that the court precluded them from adducing evidence concerning the nonenforcement of a "curfew" adopted by the county. During the examination of the county airport manager, plaintiffs asked whether any punitive action had ever been taken against a curfew violator. An objection was sustained on the ground the question was irrelevant. Plaintiffs contend the ruling was erroneous because while the jury was permitted to learn that the county had enacted a "curfew" to control noise at the airport, it withheld from the jury information concerning lack of enforcement of the curfew. We agree that the question was relevant and should have been permitted. (See fn. 14.) There is no suggestion that the ruling was sustainable on a ground other than relevancy. [FN 14]

[FN 14] Plaintiffs also complain that the court erroneously excluded evidence concerning assurances by the board of supervisors to the plaintiffs in 1962 that jet aircraft would not be permitted to use the airport. We discern no error in the court's ruling. The fact, if it be a fact, that the board in 1962 represented that jets would not be permitted to use the airport and six years later jets were permitted to do so does not render the 1962 representations false or fraudulent. Moreover, plaintiffs did not allege a cause of action for damages for fraud and deceit.

Four of the plaintiffs who claimed damages for personal injuries also sought recovery on the theory that the county lacked a valid permit for the operation of the airport. The court granted a nonsuit on that cause of action and the ruling is assigned as error. We find no error in the ruling. The State Aeronautics Act (Pub. Util. Code, s 21001 et seq.; unless otherwise indicated, all section references hereafter are to the Pub. Util. Code) provides for the issuance of airport permits. Section 21663 makes it "unlawful for any political subdivision, any of its officers or employees, or any person to operate an airport unless an appropriate airport permit required by rule of the department has been issued by the department and has not subsequently been revoked." [FN 15]

[FN 15] Section 21663 derived from a statute providing for the development and regulation of aeronautics enacted in 1947 (Stats. 1947, ch. 1379, s 17, pp. 2937, 2938).

[FN 16] Former section 3530 of title 4 of the California Administrative Code provided: "(a) Approval of Airports in Use. Airport site approvals shall be granted and airport permits shall be issued for any improved airports in use or ready for use on June 30, 1947, upon proper application on forms prescribed and supplied by the commission.

"(b) Terms of Issuance. Airport site approvals and airport permits shall be issued by commission under the terms of this article, without charge. They shall continue in effect so long as the airport equals the conditions set forth in the original application subject to revocation only under the conditions set forth in Article 5 hereof.

"(c) Change in Conditions. When changes involving the classification or intended use of an airport originally approved under this section are contemplated an amended site approval and permit will be required by the commission.

"(d) Annual Report Required. In order that the Commission may maintain accurate records of the physical status of all airports, an annual report will be required on forms prescribed by the Commission."

Plaintiffs argue that change in use within the meaning of the foregoing regulation occurred with the introduction of jet aircraft, the addition of terminals, the construction of longer and stronger runways and their redirection, and change in the surrounding community. Plaintiffs contend that by virtue of section 21664.5 those changes required an amended permit. The section, quoted in the margin below, however, contains the following qualification: "This section shall not apply to any expansion of an existing airport if the expansion commenced on or prior to the effective date of this section and the expansion met the approval on or prior to such effective date of each governmental agency which by law required such approval." [FN 17] Section 21664.5 was added in 1972. (Stats. 1972, ch. 1309, s 2, p. 2609, eff. Mar. 7, 1973.) There was no evidence that any expansion of the airport took place after the effective date of section 21664.5.

[FN 17] Section 21664.5 provides: "An amended airport permit shall be required for every expansion of an existing airport. An applicant for an amended airport permit shall comply with each requirement of this article pertaining to permits for new airports. The department may by regulation provide for exemptions from the operation of this section pursuant to Section 21661, except that no exemption shall be made limiting the applicability of subdivision (e) of Section 21666, pertaining to environmental considerations, including the requirement for public hearings in connection therewith.

"As used in this section, 'airport expansion' includes any of the following:
"(a) The acquisition of clear zones or of any interest in land for the purpose of any other expansion as set forth in this section.
"(b) The construction of a new runway.
"(c) The extension or realignment of an existing runway.
"(d) Any other expansion of the airport's physical facilities for the purpose of accomplishing or which are related to the purpose of subdivision (a), (b), or (c).
"This section shall not apply to any expansion of an existing airport if the expansion commenced on or prior to the effective date of this section and the expansion met the approval on or prior to such effective date of each governmental agency which by law required such approval."

[FN 18] Plaintiffs point out that in Bakman the court noted that there was evidence that military jets had used the airport in question before June 30, 1947, whereas there was no evidence that jets used the Orange County Airport before the issuance of the county's permit in 1949. The Bakman court's observation concerning jet aircraft use of the airport does not mean that the court intended to hold that such use would constitute a change in use within the meaning of section 3535, subdivision (c).

[FN 19] The county has also contended that plaintiffs are precluded from seeking damages for the alleged lack of a valid permit because they have not exhausted their administrative remedy. We agree with plaintiffs' response that where, as here, the action seeks damages and the administrative remedy makes no provision for damages, there is no administrative remedy to exhaust. (Lachman v. Cabrillo Pacific University (1981) 123 Cal.App.3d 941, 945 [177 Cal.Rptr. 21]; Shernoff v. Superior Court (1975) 44 Cal.App.3d 406, 410 [118 Cal.Rptr. 680].)

The judgment is reversed except as to the causes of action based on the alleged lack of a valid airport permit as to which cause of action the order granting a nonsuit and dismissal is affirmed.

Plaintiffs shall recover their costs on appeal.

Morris, Acting P. J., and Kaufman, J., concurred.

A petition for a rehearing was denied May 12, 1982, and respondent's petition for a hearing by the Supreme Court was denied July 22, 1982.