Supreme Court of California Justia
Citation 46 Cal. 4th 247, 206 P.3d 403, 92 Cal. Rptr. 3d 862

Keener v. Jeld-Wen, Inc.

Filed 5/7/09

IN THE SUPREME COURT OF CALIFORNIA

THERESA KEENER et al.,
Plaintiffs
and
Respondents,
S163430
v.
Ct.App.
4/1
D049471
JELD-WEN, INC., et al.,
San
Diego
County
Defendants and Appellants.
Super. Ct. No. DIN031341
___________________________________ )

We granted review to address issues concerning a trial court’s polling of a
civil jury pursuant to Code of Civil Procedure section 618 (hereafter section 618)
after rendering a verdict. This statute provides that if “more than one-fourth of the
jurors disagree” with a verdict upon polling, “the jury must be sent out again” for
further deliberation, “but if no disagreement is expressed, the verdict is complete
and the jury discharged from the case.” (Italics added.) We conclude that a
juror’s silence at polling, brought about by the trial court’s failure to poll that
particular juror on one of several special verdict questions, does not constitute an
expressed disagreement with the verdict under section 618, and hence does not
prevent the trial court from accepting the verdict as complete and discharging the
jury. We further conclude that a party’s failure to object to incomplete polling
before the jury is discharged forfeits any claim of irregularity in polling procedure.
1


I
Scott Keener was killed while riding his motorcycle when a truck driven by
Hector Solis, an employee of Jeld-Wen, Inc. (collectively, defendants), pulled
away from a stop sign directly into Keener’s path. Keener’s survivors (plaintiffs)
commenced this action against defendants.
After deliberating for more than two days, the jury informed the bailiff that
it had reached a verdict and then reassembled in the courtroom. When the trial
judge inquired whether the jury had arrived at a verdict, the foreperson, Raul
Santana, who had signed and dated the multiple-question verdict form, answered
in the affirmative. The trial judge explained: “What I’m going to do next is look
at the verdict form and see if it’s in order. Once I determine it’s in order, I will
have . . . my clerk . . . read the verdict form after which I’ll ask you as a group
whether this was your verdict as read. [¶] Because it is a civil case, it requires
nine of 12 on each of the questions to have . . . a partial verdict. So what will
ultimately happen is I will poll you individually asking you whether [on] a
particular question you voted yes or no. And I hope you have with you a cheat
sheet so you can refer to it if you need to in telling me how you voted on each of
the questions.[1] [¶] Assuming that is done correctly, I will then ask my clerk to
what is called record the verdict, meaning put a stamp on it. I will then excuse
you as a jury, give you a brief admonition, and then you’re done. [¶] So give me
a moment to review the verdict form.”

1
Previously, in instructing the jury, the trial court stated: “Each of you may
be asked in open court how you voted on each question. [¶] For that purpose and
. . . toward that possibility, you’re each given a colored copy of the special verdict
form where you may, if you want, record your personal votes on each of the
questions if in fact you do vote on those questions.”
2


The clerk then read aloud the three-page verdict form. It was divided into
nine questions, some with subparts. The jurors’ responses — as reflected on the
verdict form — revealed, in questions 1 and 2, that the jury found Hector Solis
was negligent, and that his negligence was a substantial factor in causing Keener’s
death. In questions 3 through 6, the jurors assessed the plaintiffs’ damages.
Question 7 asked, “Was Scott Keener negligent?”2 Question 8 asked, “Was Scott
Keener’s negligence a substantial factor in causing his death?” Question 9 asked,
“What percentage of responsibility do you assign to: [¶] Hector Solis ___% [¶]
Scott Keener ___% . . . .” The verdict form further revealed that the jury had
found both parties were negligent, the negligence of each was a substantial factor
in causing Keener’s death, and the plaintiffs suffered economic and noneconomic
damages totaling $4,940,000. Finally, the jury found that defendant Solis bore 80
percent of the responsibility for the death, and Keener bore 20 percent of the
responsibility for his own death.
The trial judge then addressed the jury: “Ladies and gentlemen, as a group,
is this and was this your verdict as read? You can say yes or no depending on how
you voted.” The reporter’s transcript reflects that in response, “the jurors
answered collectively.” The judge explained that he would individually ask each
juror to confirm his or her vote on each of the nine questions and subquestions,
and then proceeded to poll each juror in numerical order. During the polling, eight
jurors — numbers 1, 2, 3, 5, 8, 9, 11, and 12 — answered all questions
consistently with the special verdict form. Four jurors, however, gave answers
different in various respects from those set out in the verdict form.

2
This part of the verdict form, tracking question one, also provided: “If you
answered no, stop here, answer no further questions, and have the presiding juror
sign and date this form.”
3


In response to the first special verdict form question, Juror No. 4 responded
with a finding that Solis was not negligent. The trial judge confirmed that vote,
and then dispensed with immediately polling Juror No. 4 concerning any of the
other eight special verdict form questions, instead proceeding to poll the next
juror. The vote of Juror No. 6, in response to verdict form question 9, was to
apportion 90 percent of responsibility to Solis, and only 10 percent to Keener.
Juror No. 7 (Brown) answered all special verdict form questions 1 through 6
consistently with the verdict form, but in response to question seven, stated that he
had voted to find Keener was not negligent. At that point the trial judge ended the
polling of Brown, and did not ask whether (or if so, how) he voted on special
verdict form questions 8 (Keener’s negligence as a substantial factor) or 9
(apportionment of responsibility). Juror No. 10 (Foreperson Santana) — like Juror
No. 4 — stated, in response to the first verdict form question, that he found Solis
was not negligent. The trial judge commented: “And I may come back to [Jurors
Nos.] 4 and 10 later but not yet.” The trial judge continued to poll the remaining
jurors.
Thereafter, immediately following completion of the polling of Juror
No. 12, the trial judge inquired: “Mr. Foreperson, for those that voted no as to
[verdict form question] No. 1 [(negligence of Solis)], did the two who voted no
participate in any of the damage calculations?” Upon confirmation that the two
jurors did so, the trial judge returned to Juror No. 4 and polled concerning that
juror’s votes on special verdict form questions 3 through 9. Juror No. 4 stated that
with respect to apportionment of responsibility (question 9), the juror’s vote was
“Mr. Solis, 40 percent. Mr. Keener, 60 [percent].” Finally, the trial judge
returned to Jury Foreperson Santana (Juror No. 10) and polled concerning his
votes on special verdict form questions 3 through 9. With respect to
4
apportionment of responsibility (question 9), Foreperson Santana stated his vote as
“50 percent for both.”
Apparently, no one noticed that throughout this process, although the
polling revealed a clear three-quarters majority for special verdict form questions
1 through 8, the polling revealed only eight votes for the verdict form’s stated “80-
20” apportionment of responsibility between Solis and Keener. On that allocation
issue, two jurors — Jurors Nos. 4 and 10 (Foreperson Santana) — voted
respectively to apportion responsibility between Solis and Keener at 40-60 percent
and 50-50 percent. One juror — Juror No. 7 (Brown) — never was asked to state
a vote on apportionment and hence, in essence, this juror was silent as to that
polling question. One other panelist — Juror No. 6 — confirmed in the polling a
vote to apportion fault 90 percent to Solis and 10 percent to Keener.
Immediately after repolling Jury Foreperson Santana (Juror No. 10), the
trial judge asked the clerk to record the verdict and, at length, thanked the jurors
and then discharged them. After resolving a few remaining housekeeping matters
with counsel, the trial judge asked counsel whether there was “anything further.”
Attorneys for each side replied there was not.
A few days later, the trial judge learned (the record does not reflect how)
that he had failed to poll Juror Brown on both the issues of negligence and
apportionment.3 The judge convened a hearing and informed the parties of the

3
The failure to poll Juror Brown regarding whether Keener’s negligence was
a substantial factor in his own death posed no significant problem because, even
without Brown’s vote, there were 11 votes supporting the verdict on that element.
The failure to poll Brown as to apportionment raised an issue because, without
Brown’s vote, and in light of the polled vote of Juror No. 10 (Foreperson Santana,
who may have changed his vote during polling), there were only eight polled votes
for the 80-20 apportionment.
5


omission. Thereafter, defendants moved to invalidate the apportionment verdict,
submitting declarations from Jury Foreperson Santana and Juror No. 2, each of
whom declared that during deliberations, Juror No. 7, Brown, had “refused to find
any negligence attributable to Mr. Keener” and had “refused to answer the
allocation of liability on Question No. 9 of the Special Verdict Form.” Neither of
these declarants, however, disclosed what had been his or her own apportionment
vote at the time the verdict form was signed in the jury room.4 Plaintiffs moved to
strike the jury declarations on the ground they implicated Juror Brown’s “mental
processes” and were therefore inadmissible under Evidence Code section 1150,
subdivision (a).5 In the alternative, plaintiffs asked the court to consider the
declarations of three other panelists, each of whom stated that when the verdict
form was signed, there were at least nine votes to support the 80-20 apportionment
verdict.
The trial court ordered the declarations of Jury Foreperson Santana and
Juror No. 2 stricken as inadmissible, and declined to consider plaintiffs’ proffered
declarations. The court denied defendants’ motion to invalidate the apportionment
verdict, concluding that defendants had “waived any right to object to any

4
Each of the two trial defense counsel also filed declarations, both stating
that until the trial court mentioned that Juror Brown had not been polled on two
questions, the respective declarant was unaware that the polling had been
incomplete.
5
That subdivision provides in relevant part: “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.”
6


irregularity in the polling procedure by failing to timely object before the verdict
was entered.” The court entered judgment in the amount of $3,952,000 (that is, 80
percent of $4,940,000) in accordance with the written special verdict form.
Defendants moved for a new trial on several bases, including the ground
that the apportionment verdict was invalid because the polling was incomplete and
there were insufficient polled votes to uphold the written verdict’s 80-20
apportionment. Defendants submitted new declarations by Jury Foreperson
Santana and Juror No. 2. Although the new declarations, like the originals, were
silent as to Santana’s apportionment vote in the jury room, both stated that Juror
Brown announced to the rest of the jury “that he was ‘abstaining’ from voting on
Question No. 9,” and that Brown refused to answer the apportionment question
during deliberations. Plaintiffs opposed the motion for new trial and submitted
new declarations by four members of the jury (among them, Jurors Brown and
Scopinich), all of whom stated, in essence, that by the end of the deliberations
there were at least nine jurors — including Jury Foreperson Santana — who had
voted in the jury room for the 80-20 apportionment. In his proffered declaration,
Juror Brown further stated: “I voted for a 100%-0% apportionment, with 100%
for Mr. Solis and 0% for Mr. Keener.” Juror Scopinich declared that “Mr. Brown
dissented from [the jury’s 80-20 apportionment vote] and remained at 100% for
Mr. Solis and 0% for Mr. Keener.” Scopinich also declared that when she heard
Foreperson Santana state his “50-50” apportionment vote during polling, “[m]y
head snapped up,” because Santana’s statement “was inconsistent with the last
vote he had expressed on that issue in the jury room.”
The court denied defendants’ motion for new trial. In doing so, the court
considered the various declarations, but found them admissible only with regard to
“[w]hether a particular juror gave a yes or no vote on a particular issue.” As to the
polling issue, the court found once again that defendants “waived” any error by
7
failing to object prior to the discharge of the jury. The court also concluded, in
any event, there was no defect in the verdict, because Jury Foreperson Santana had
provided the ninth vote in the jury room.6
Defendants appealed, arguing, among other things, that the special verdict
on apportionment, which was based upon the written verdict form, lacked
sufficient votes in light of the circumstances that Jury Foreperson Santana may
have changed his vote at the time of polling and that Juror Brown failed to state
his vote at the time of polling. The Court of Appeal rejected most of defendants’
claims but ruled for defendants on the apportionment issue. In that regard, the
appellate court reached three principal conclusions. First, the court determined,
“the trial court erred [under Evidence Code section 1150] in accepting the juror
declarations to inquire into and resolve the results of the jury’s decisionmaking
process, and also when it made a credibility determination that [Jury Foreperson]
Santana could not . . . have voted other than 80-20 at any relevant time.” Second,
the Court of Appeal found, the verdict was not “complete” under section 618,
because the missing polled apportionment vote of Juror No. 7, Brown, constituted
“essentially a disagreement” with the apportionment verdict; accordingly, the
appellate court concluded, the polling revealed that at least four jurors disagreed

6
The trial court based this finding upon the four juror declarations submitted
by plaintiffs, which the court found “highly credible, especially in light of the fact
that Mr. Santana’s declaration is conspicuously silent as to his vote on
apportionment.” The court stated: “His assertion, as jury foreperson, that the jury
had in fact reached a verdict, coupled with the declarations just cited lead the court
to conclude that there were, in fact, nine votes for an 80-20 apportionment and that
one of those nine votes was Mr. Santana’s notwithstanding his inexplicable and
dubious statement at polling that he had voted for a 50-50 apportionment.” The
court found irrelevant and inadmissible the declarations of Woods and Santana
and the portion of Brown’s declaration stating his apportionment vote was 100-0.
8


with the apportionment aspect of the special verdict, and hence the verdict should
not have been accepted and the jury discharged. Third, the Court of Appeal
reasoned, defendants’ failure to object at trial to the incomplete polling did not
constitute “a waiver of an apparent defect” because, the appellate court found, the
polling was confusing and defense counsel had “no realistic opportunity” to object
to the defective procedure; in any event, the appellate court suggested, defendants’
claim of a verdict supported by less than nine votes is too “severe” a defect to be
subject to waiver. Accordingly, the appellate court reversed the judgment in part,
“with directions to the trial court to conduct such further proceedings as will
implement the existing special verdict as to its first eight questions and answers,
while allowing appropriate additional proceedings on the issue of apportionment
of liability only.”
Plaintiffs’ petition for review raised only two issues, the second and third
described immediately above, and thus we address those issues only.7
Specifically — and, as explained below, significantly — the appellate court’s
determination that all of the juror declarations (whether submitted by defendant or
by plaintiffs) were inadmissible under Evidence Code section 1150 on the
polling/apportionment issue is not before us in this proceeding.
II
California Constitution, article I, section 16 provides: “Trial by jury is an
inviolate right . . . , but in a civil cause three-fourths of the jury may render a
verdict.” When a jury is composed of 12 persons, it is sufficient if any nine jurors

7
Defendants did not file an answer to the petition for review (Cal. Rules of
Court, rule 8.500(a)(2)) and hence did not ask this court to consider any additional
issue resolved by the Court of Appeal, in the event this court were to grant review.
(Ibid.; id., rule 8.504(b).)
9


arrive at each special verdict, regardless of the jurors’ votes on other special
verdict questions. (Resch v. Volkswagen of America, Inc. (1984) 36 Cal.3d 676,
679 (Resch) [each juror should participate as to each special verdict submitted];
see also Juarez v. Superior Court (1982) 31 Cal.3d 759, 767-768 (Juarez).)8
The polling process is designed to reveal mistakes in the written verdict, or to
show “that one or more jurors acceded to a verdict in the jury room but was unwilling
to stand by it in open court.” (People v. Thornton (1984) 155 Cal.App.3d 845, 859.)
Polling procedure applicable to civil matters is set forth in section 618, which
provides: “When the jury, or three-fourths of them, have agreed upon a verdict, they
must be conducted into court and the verdict rendered by their foreperson. The
verdict must be in writing, signed by the foreperson, and must be read to the jury by
the clerk, and the inquiry made whether it is their verdict. Either party may require
the jury to be polled, which is done by the court or clerk, asking each juror if it is the
juror’s verdict. If upon inquiry or polling, more than one-fourth of the jurors disagree
thereto, the jury must be sent out again, but if no disagreement is expressed, the
verdict is complete and the jury discharged from the case.” (Italics added.)9 Sections

8
Moreover, our decision in Resch, supra, 36 Cal.3d 676, 680, permits jurors
to cast inconsistent votes on individual questions — as did Jurors Nos. 4, 7, and 10
in the present case.
9
This is the current wording of the statute, as amended in 2007. (Stats.
2007, ch. 263, § 7.) At the time of trial in the present case, the section read
slightly differently — for example, it employed gender-specific language
(“foreman” instead of “foreperson”), and the concluding phrase read, “but if no
disagreement be expressed” instead of “but if no disagreement is expressed.”
(Stats. 1978, ch. 258, § 1, p. 542.) These minor changes, enacted along with other
technical amendments to various codes upon the recommendation of the California
Law Revision Commission, are not material.
10


1163 and 1164 of the Penal Code similarly address jury polling in the criminal
context.10
It is established that a juror may change his or her vote at the time of
polling. (Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 266 [trial court
erred by failing to credit a juror’s changed vote at polling and to send the jury back
for further deliberations].) Any juror is permitted to “declare, even at the last
moment, that the verdict, as presented, is not his [or her] verdict,” as long as the
juror does not change his or her vote “merely because he [or she] mistook the legal
effect of his verdict.” (Fitzpatrick v. Himmelmann (1874) 48 Cal. 588, 590.)11
Under these authorities, Jury Foreperson Santana was entitled to change his vote
up until the time the verdict was recorded, and to have that revised vote counted.
The record does not reflect whether Jury Foreperson Santana or any other juror
changed his or her vote at the time of polling. But what is evident is that neither
the trial judge nor the parties noticed, until well after the jury was discharged, that

10
Penal Code section 1163 provides: “When a verdict is rendered, and
before it is recorded, the jury may be polled, at the request of either party, in
which case they must be severally asked whether it is their verdict, and if any one
answer in the negative, the jury must be sent out for further deliberation.” Penal
Code section 1164, subdivision (a), contains language identical to the key passage
of section 618 — differing only in that it also reflects the unanimity requirement
for criminal verdicts. It reads: “When the verdict given is receivable by the court,
the clerk shall record it in full upon the minutes, and if requested by any party
shall read it to the jury, and inquire of them whether it is their verdict. If any juror
disagrees, the fact shall be entered upon the minutes and the jury again sent out;
but if no disagreement is expressed, the verdict is complete, and the jury shall . . .
be discharged from the case.
” (Pen. Code, § 1164, subd. (a), italics added.)
11
Once the polled verdicts are recorded, however, jurors are not permitted to
change their votes, even if the jury has not yet been discharged. (People v. Bento
(1998) 65 Cal.App.4th 179, 187-193.)
11


Juror Brown, when polled, was not asked the final special verdict question
concerning apportionment.
III
A
We address first the assertion of defendants that the trial court erred under
section 618 by accepting the verdict as complete and thereafter discharging the
jury. That statute (quoted ante, on page 11), provides, in essence, that upon
polling, a civil verdict must be upheld unlessmore than one-fourth of the jurors
disagree thereto”; it states that absent such “disagreement . . . expressed, the
verdict is complete.” (Italics added.) As plaintiffs observe, section 618 effectively
creates a “rebuttable presumption: If a verdict appears complete, it is complete
unless there is an affirmative showing [during polling] to the contrary.”
1
Although in the present case, when polled, only three jurors (that is, “not
more than one-fourth” of the jurors) “expressed” their “disagreement” with the
apportionment verdict, the Court of Appeal below concluded that Juror Brown’s
“missing vote is essentially a disagreement,” and hence “there are more than three
jurors who ‘disagreed’ under section 618.” But by remaining silent when the court
failed to poll him concerning the apportionment verdict, Juror Brown did not
thereby “express” any “disagreement” with the verdict — and hence the polling
did not disclose that “more than one-fourth of the jurors disagree[d] with the
apportionment verdict.” Indeed, if the Legislature had intended that a juror’s mere
silence at polling, caused by the trial court’s failure to poll that particular juror on
one of several special verdict questions, would be sufficient to establish
“expressed” “disagreement” with a verdict, we expect the Legislature would have
written section 618 quite differently, such as by employing language used by
12
legislatures in other jurisdictions in enacting similar statutes, some of which,
unlike section 618, effectively equate a juror’s silence with disagreement.12
By contrast, California’s polling statutes (section 618, governing civil
cases, and Penal Code, sections 1163 and 1164, governing criminal cases) —
which, as noted, require that a verdict be upheld absent “disagreement . . .
expressed” by the polled jurors — are very similar to those of at least 19 other
jurisdictions that require affirmative expressions of disagreement at polling in
order to preclude completion of a verdict. At least eight states have statutes or
rules providing that a jury must be required to resume deliberations if, upon
polling, a requisite number of jurors “answer in the negative” or words to that
effect;13 and at least 11 other states, like California, provide that a jury must be

12
For example, Oregon provides: “If fewer jurors answer in the affirmative
than the number required to render a verdict, the jury shall be sent out for further
deliberations.” (Or. Rules Civ. Proc., rule 59(G)(3); see also 2009 Conn. Practice
Book, Super. Ct. — Procedure in Civil Matters, § 16-32 [“If upon the poll there is
not unanimous concurrence, the jury may be directed to retire for further
deliberations or they may be discharged”]; Md. Rules, rule 2-522(b) [“If the poll
discloses that the jury, or stated majority, has not concurred in the verdict, the
court may direct the jury to retire for further deliberation”]; Nev. Rev. Stat. Ann.
§ 175.531 [essentially same as Or. provision]; N.J. Rules of Court, pt. I, § 1:8-10
[“If the poll discloses that there is not . . . concurrence by the number required . . .
in a civil action, the jury may be directed to retire for further deliberations”];
Wash. Rev. Code § 4.44.390 [“If it appears [upon polling] that the verdict is
insufficient because the required number of jurors have not reached agreement, the
jurors may be returned to the jury room for further deliberation”].)
13
(Ala. Code § 12-16-15 [if, upon polling “any [jurors] answer in the negative,
the jury must be sent out for further deliberation”]; Ark. Code § 16-64-119
[essentially same]; Neb. Rev. Stats. § 25-1124 [essentially same]; N.D. Code § 28-
14-23 [essentially same]; Okla. Stats. § 585 [essentially same]; S.D. Codified Laws
§ 15-14-29 [essentially same]; Tex. Rules Civ. Proc., rule 294 [if, upon polling,
“any juror shown by the juror’s signature to agree to the verdict should answer in
the negative, the jury shall be retired for further deliberation”]; Wy. Code Civ. Proc.
§ 1-11-213 [essentially same as Ala. provision and others listed above].)
13


required to resume deliberations if, upon polling, a requisite number of jurors
“disagree” or “express disagreement,” or words to that effect.14 We have found
no decision interpreting any of these various statutes or rules that has held, as did
the Court of Appeal below, that the silence of a juror related to a polling question,

14
(Ariz. Rules Civ. Proc., rule 49(b) [“If any such juror disagrees as to the
verdict, the jury shall again retire to consider the case further, but if no juror
disagrees, the court shall receive the verdict”]; Fla. Rules Crim. Proc., rules 3.440
& 3.450 [“The clerk shall then read the verdict to the jurors and, unless
disagreement is expressed by one or more of them or the jury is polled, the verdict
shall be entered of record, and the jurors discharged from the cause”; “If a juror
dissents, the court must direct that the jury be sent back for further consideration”
but “[i]f there is no dissent the verdict shall be entered of record and the jurors
discharged”]; Iowa Ct. Rules, Rules Crim. Proc., rule 2.22(5) [“If any juror
expresses disagreement on such poll or inquiry, the jury shall be sent out for
further deliberation”]; Kan. Crim. Proc. Code § 22-3421 [“If any juror disagrees,
the jury must be sent out again; but if no disagreement is expressed, and neither
party requires the jury to be polled, the verdict is complete”]; Ky. Rev. Stats.
§ 29A.320(3)(e) & (f) [“If more than the number of jurors required . . . as
appropriate to the type of case being tried, answers in the negative, the jury must
be sent out for further deliberation”; “If no disagreement is expressed or, in an
appropriate case, an insufficient number disagree, the verdict is complete and the
jury shall be discharged from the case”]; Minn. Stats. § 546.24 [“If any juror
disagrees, the fact shall be entered in the minutes, and the jury again sent out”];
Mont. Code Ann. § 25-7-501(2) [“If upon such inquiry or polling more than one-
third of the jurors disagree thereto, the jury must be sent out again, but if no such
disagreement be expressed, the verdict is complete and the jury discharged from
the case”]; N.M. Rules Civ. Proc. Dist. Cts. rule 1-038(G) [“[I]f upon . . . polling
more than two of the jurors disagree thereto, the jury must be sent out again but if
no such disagreement be expressed, the verdict is complete and the jury
discharged from the case”]; N.Y. Crim. Proc. Law § 310.80 [if upon polling “any
juror answers in the negative, the court must refuse to accept the verdict and must
direct the jury to resume its deliberation” but “[i]f no disagreement is expressed,
the jury must be discharged from the case”]; see also Ind. Code § 34-36-1-9 [“If a
juror dissents from the verdict, the jury shall again be sent out to deliberate”];
Ohio Rev. Code Ann. § 2945.77 [“If one of the jurors upon being polled declares
that said verdict is not his verdict, the jury must further deliberate upon the
case”].)
14


after not having not been asked that question, constitutes “disagreement” with the
verdict — much less express disagreement.15
We agree with plaintiffs that section 618 requires affirmative
disagreement — an utterance, statement, or some similar active conduct — of
“more than one fourth” of the jurors in order to prevent a trial court from finding
the verdict to be complete and from then discharging the jury. (Cf. Van Cise v.
Lencioni (1951) 106 Cal.App.2d 341, 348 [implicitly construing “expressed” in
section 618 as meaning “disclosed”]; People v. Wattier (1996) 51 Cal.App.4th
948, 955 [implicitly construing “expressed” in Penal Code section 1164 as
meaning “answered”]; People v. Laird (1924) 69 Cal.App. 511, 515 [when the
trial court asked the jurors whether the verdict was theirs, there was no response;
the appellate court observed that “[n]o disagreement being expressed, the verdict

15
Indeed, at least one decision, Suggs v. Fitch (Tex. App. 2001) 64 S.W.3d
658 (Suggs), implies that the silence of a juror in such a situation does not
constitute “disagreement” with the verdict. Under Texas procedure, 10 of 12
jurors are required to render a civil verdict. In Suggs, the jury returned a written
verdict signed by 10 jurors, including the foreperson. (Id., at pp. 659-660.) As
observed ante, in footnote 11, the Texas rule provides that if, upon polling, “any
juror shown by the juror’s signature to agree to the verdict should answer in the
negative, the jury shall be retired for further deliberation.” (Tex. Rules Civ. Proc.,
rule 294, italics added.) The record in Suggs revealed that upon polling, the trial
court confirmed the votes of the first nine jurors who signed the verdict, but
inexplicably failed to ask the tenth (the foreperson) his vote. (Suggs, supra, 64
S.W.3d at pp. 659-660.) On appeal, the losing party (the plaintiff at trial) asserted
that this “irregularity” in the polling constituted reversible error. (Id., at p. 659.)
Apparently, the plaintiff did not argue that the resulting silence of the
unquestioned jury foreperson constituted an “answer in the negative” (that is,
disagreement with the verdict) under the Texas polling rule — evidently because
such a contention would not be meritorious under the terms of the statute. Instead,
the sole issue was whether the irregularity — incomplete polling — had been
waived. The appellate court in Suggs concluded that such a claim was indeed
waived by the plaintiff’s failure to object at the time of polling. (Id., at pp. 659-
661.)
15


became complete”].) It follows that, as here, a juror’s mere silence at polling,
brought about by the trial court’s failure to poll the juror on one of multiple special
verdict questions, does not constitute an expressed disagreement with the verdict
under section 618, and hence that this statute provides no basis under the present
circumstances for a court to decline to uphold the verdict as set out in the jury’s
special verdict form.
2
We briefly address defendants’ contrary arguments. First, defendants claim
that Juror Brown did indeed affirmatively express his disagreement with the
verdict apportioning fault between Hector Solis and Scott Keener. They assert
that based upon the polling, “the undisputed evidence established that only eight
jurors voted in favor of Special Verdict No. 9.” Defendants next argue that the
declaration of Juror Brown, stating that he voted for a “100%-0%
apportionment — 100% for Mr. Solis and 0% for Mr. Keener,” together with
corroborating declarations by other jurors, demonstrate that Juror Brown did not
vote in the jury room in favor of the 80-20 apportionment verdict. Based upon this
information from the declarations (and Brown’s in particular), defendants argue, it
is “undisputed” and “established” that “Juror Brown did not supply the requisite
ninth vote.” As plaintiffs observe, however, defendants cannot properly rely upon
Brown’s, or any other juror’s, declaration, because the Court of Appeal concluded
that no declaration submitted below in this matter is admissible, in whole or in
part; as noted above, the inadmissibility of the declarations is not before us for
review, and we treat it as a settled question for purposes of this case. (See ante,
p. 10 & fn. 6.) Accordingly, the premise of defendants — that Juror Brown
affirmatively expressed his disagreement with the 80-20 apportionment verdict —
has not been, and cannot be, established by admissible evidence. The record
leaves unresolved whether, at the time of polling or in the jury room, there were
16
eight votes only (or whether there were nine or more votes) for the apportionment
verdict.16
Defendants also assert that permitting an eight-vote civil verdict to stand
would call into question the constitutionality, as applied, of section 618, and
would violate article I, section 16 of the Constitution, which as noted requires a
verdict of three-quarters of the jurors (meaning, in this case, nine of 12).
Defendants argue that a special verdict based upon only eight votes is
unconstitutional and cannot be upheld on appeal.
We observe initially that although we do not know how Juror Brown would
have voted had he been polled specifically on the apportionment question, based
upon his polled answers indicating that Solis was negligent and that Keener was
not, it seems that Juror Brown most likely would have been amenable to assuring
that plaintiffs obtain a verdict in their favor reflecting at least the jury’s 80-20
apportionment.17 Accordingly, had Juror Brown been questioned, a vote by him

16
There was silent acquiescence on the part of defendants to rulings — made
both by the trial court and by the appellate court — that bear upon defendants’
present claim of reversible error. Juror Brown, not having been asked by the trial
court to state a vote on the apportionment issue, in essence was silent as to this
polling question. That silence in turn was compounded by the silence of
defendants’ trial counsel, who failed to object to this incomplete polling, and
further compounded by the silence of their appellate counsel, who failed to
preserve for review in this court their present objections to the Court of Appeal’s
ruling that none of the juror declarations submitted to the trial court were
admissible. Although purporting to rely upon these declarations in their briefing
and oral argument in this court, counsel failed to contest — and hence to preserve
for review — the Court of Appeal’s ruling that all of the juror declarations
(whether submitted by defendants or by plaintiffs) were inadmissible. (Cal. Rules
of Court, rule 8.500.)
17
Indeed, if, as defendants suggest, we were to reconsider the Court of
Appeal’s determination that the juror declarations were inadmissible, and credit
the declarations — and hence, if we were to assume that Foreperson Santana
(footnote continued on next page)
17


to uphold the jury’s 80-20 apportionment verdict would have been consistent with
his polled answers to the trial court’s questions concerning liability for negligence.
In any event, as we observed immediately above, no admissible evidence
supports defendants’ assertion that nine of the jurors did not agree with the 80-20
apportionment verdict; the record reveals only that eight of the 11 jurors who were
polled on that particular question so voted. Once again, defendants’ premise —
that there were eight votes only, and not nine votes or more in support of the
verdict — has not been, and cannot be, established by admissible evidence.
(Walling v. Kimball (1941) 17 Cal.2d 364, 373 [“ ‘an appellate court will never
indulge in presumptions to defeat a judgment,’ ” nor will it “ ‘presume that an
error was committed, or that something was done or omitted to be done which
constitutes error’ ”; instead, “ ‘every intendment and presumption not contradicted
by or inconsistent with the record on appeal must be indulged in favor of the
orders and judgments of superior courts’ ”].)18

(footnote continued from previous page)
changed his vote upon polling — it would be equally reasonable to assume, with
regard to Juror Brown, that if his prior vote in the jury room had allocated fault
100 percent to defendants and zero percent to Keener, when given the opportunity
at polling Juror Brown might have altered his own vote in order to conform with
the jury’s 80-20 allocation. It is perhaps even more likely that Juror Brown would
have done so in light of the assumed change in Foreperson Santana’s vote, in order
to preclude Santana, by a last-minute switch, from depriving plaintiffs of a verdict
to which the jury had agreed.
18
Finally, defendants advance two related arguments. First, they assert that
section 618 requires that if polling occurs, each juror must be polled on each
special verdict question — and they argue that in light of the circumstance that
Juror Brown was not polled concerning his apportionment vote, under the statute
the trial court could not properly thereafter accept the verdict as complete and
discharge the jury. This argument appears to be in essence a variation of the
argument addressed and rejected ante, in part III.A.1. In any event, we disagree
with defendants’ proposed statutory interpretation. The statute provides that if
(footnote continued on next page)
18


B
Although section 618 did not bar the trial court from accepting the verdict
as complete and discharging the jury, the circumstance remains that the record
does indeed disclose that the court failed to poll Juror Brown on two of the special
verdict questions, including the one related to the issue of apportionment. As
observed earlier, the Court of Appeal below concluded that defendants’ failure to
object to the incomplete polling did not constitute a “waiver” of any such defect.
In this court, defendants argue that the conclusion reached by the intermediate

(footnote continued from previous page)
requested by a party, the trial court must poll each juror. Here the court did so
(evidently on its own motion), but the court incompletely polled one of the jurors.
We reject any suggestion that section 618 must be construed to bar completion of
the verdict and discharge of the jury if, as here, the trial court happens to poll a
single juror incompletely and no party objects or brings that defect to the court’s
attention for correction. Defendants have not cited any decision so construing
section 618, nor have they cited any decision so construing any of the analogous
out-of-state statutes listed ante, in footnotes 14 and 15. As explained post, in part
III.B, in our discussion of the issue of forfeiture, the burden in such a situation
rests on the parties to object to the incomplete polling at a time when the defect
can be corrected.

Second, defendants assert that the circumstance that three of the 11 jurors
who were asked the apportionment question — that is, 27.2 percent of those 11
jurors — disagreed with the 80-20 allocation, signifies that more than one-fourth
of the jurors did indeed “express” their “disagreement” with the apportionment
verdict. As plaintiffs observe, however, section 618 assumes that the denominator
in a 12-juror case is 12, and not a lesser number. In any event, defendants’
argument, if accepted, would require that in all cases in which there is expressed
disagreement of three of 11 jurors, the verdict would be deemed “incomplete,”
thereby removing a trial court’s authority to discharge the jury — and effectively
eliminating the well-established forfeiture rule, discussed post, in part III.B. Once
again, defendants fail to cite any decision so construing section 618, or any of the
analogous out-of-state statutes listed ante, in footnotes 14 and 15. We decline to
construe section 618 in the manner suggested by defendants.
19


appellate court was correct, although defendants propose a slightly different
analysis in support of that result.
We disagree with the Court of Appeal, and with defendants. As explained
below, by not objecting to the incomplete polling, defendants forfeited19 their
right to assert that the failure to poll Juror Brown on the final special verdict
question, related to apportionment, rendered that part of the verdict invalid.
1
We briefly review the relevant case law. In People v. Lessard (1962) 58
Cal.2d 447 (Lessard), a capital case, the original reporter’s transcript suggested
that one juror had not been polled. (Id., at p. 452.) In response to the defendant’s
assertion on appeal that he was thereby deprived of his statutory right to a
complete polling of the jury, we first noted that “a duly verified correction to the
reporter’s transcript shows that the twelfth juror was also independently polled and
that he too stated that the announced verdict was also his individual verdict.”
(Ibid.) We then wrote: “Where a jury is incompletely polled and no request is
made for correcting the error, such further polling may be deemed waived by
defendant, who cannot sit idly by and then claim error on appeal when the

19
Plaintiffs observe that the correct term for the effect of the failure to object
to the incomplete polling is “forfeiture,” rather than “waiver.” As we explained in
In re Sheena K. (2007) 40 Cal.4th 875: “[T]he former term [(forfeiture)] refers to
a failure to object or to invoke a right, whereas the latter term [(waiver)] conveys
an express relinquishment of a right or privilege. [Citations.] As a practical
matter, the two terms on occasion have been used interchangeably. [Citations.]
Because it is most accurate to describe the issue as whether a party has forfeited a
claim by failing to object in the trial court, ‘in our subsequent discussion we
generally shall refer to the issue as one of forfeiture.’ [Citation.]” (Id., at p. 880,
fn. 1.) Although the term “waiver” is used in the Court of Appeal’s opinion and
other cases, consistent with our approach in Sheena K. we shall characterize the
matter as one of forfeiture, rather than waiver.
20


inadvertence could have readily been corrected upon his merely directing the
attention of the court thereto.” (Ibid., italics added.)
Thereafter, in a civil case, Silverhart v. Mt. Zion Hospital (1971) 20
Cal.App.3d 1022. 1029, the court considered the responses of eight jurors in initial
polling that the verdict was theirs, of three who said it was not, and of one who
replied ambiguously, “ ‘Yes, I voted.’ ” After an immediate second polling, 10
jurors reported that the verdict was theirs, and two said it was not. The defendant
did not object to the polling procedure or suggest that the jury should be
reconvened. On appeal, the reviewing court held the defendant forfeited his right
to challenge the polling, because “any impropriety could have been cured if raised
on time” and hence “the failure to object amounted to a waiver of the alleged
impropriety or error.” (Ibid.) The court in Silverhart further observed that “all
reasonable inferences must be indulged on appeal to support, rather than to defeat,
the jury’s verdict and the judgment thereon” (ibid.) and noted that, so viewed, no
impropriety occurred in the polling or the verdict.
The most frequently quoted statement of the applicable rule is found in
Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512 (Henrioulle). There, the
trial court granted the defendant a new trial because the same nine jurors had not
assented to each question on the special verdict form. (Id., at p. 517.) At that
time, it was not clear that such a verdict (lacking the votes of the same nine jurors
on each special verdict question) was valid. We concluded the granting of a new
trial was erroneous, but did not resolve the underlying substantive issue,20 because

20
After concluding in Henrioulle that we “need not reach the question of
whether or not the same nine jurors must agree on each part of a special verdict”
(Henrioulle, supra, 20 Cal.3d at p. 522), we subsequently resolved that issue in
Juarez, supra, 31 Cal.3d 759, 767-768, concluding that the same nine jurors need
not agree. (See also Resch, supra, 36 Cal.3d 676, 679.)
21


we found that even if the verdict was invalid on the stated ground, any challenge
to the verdict had been forfeited. We explained: “Failure to object to a verdict
before the discharge of a jury and to request clarification or further deliberation
precludes a party from later questioning the validity of that verdict if the alleged
defect was apparent at the time the verdict was rendered and could have been
corrected.” (Henrioulle, at p. 521, fn. omitted, italics added.)21 We concluded
that because the alleged voting defect was apparent at the time the jury was polled
and could have been cured by further deliberation, the defendant’s failure to object
forfeited the claim and precluded the trial court from granting a new trial on that
basis. (Id., at p. 522.)
More recently, in People v. Wright (1990) 52 Cal.3d 367 — which, like
Lessard, supra, 58 Cal.2d 447, was a capital case — we observed: “Defendant
urges reversal is required because the record seemingly reflects that one of the
twelve jurors . . . was not polled for an indication of his agreement with the
verdict.” (Wright, at p. 415.) In response, and without reaching the merits of the
defendant’s claim, we quoted the passage from Lessard, supra, 58 Cal.2d at
p. 452, set out above, emphasizing that a claim of incomplete polling may be
deemed forfeited, and that a “ ‘defendant . . . cannot sit idly by and then claim
error on appeal when the inadvertence could have readily been corrected upon his
merely directing the attention of the court thereto.’ ” (Wright, supra, 52 Cal.3d at
p. 415.)

21
(Accord, Juarez, supra, 31 Cal.3d 759, 764 [noting the forfeiture rule, and
commenting: “The obvious purpose for requiring an objection to a defective
verdict before a jury is discharged is to provide it an opportunity to cure the defect
by further deliberation”].)
22



The forfeiture rule generally applies in all civil and criminal proceedings.
(9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400; 6 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Reversible Error, § 37.) The rule is designed to
advance efficiency and deter gamesmanship. As we explained in People v. Simon
(2001) 25 Cal.4th 1082 (Simon): “ ‘ “ ‘The purpose of the general doctrine of
waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of
the trial court, so that they may be corrected or avoided and a fair trial had . . . .’ ”
[Citation.] “ ‘No procedural principle is more familiar to this Court than that a
constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as
well as civil cases by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it.’ . . .” [Citation.] [¶] “The rationale
for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603 at
page 610 . . . : ‘ “In the hurry of the trial many things may be, and are, overlooked
which would readily have been rectified had attention been called to them. The
law casts upon the party the duty of looking after his legal rights and of calling the
judge’s attention to any infringement of them. If any other rule were to obtain, the
party would in most cases be careful to be silent as to his objections until it would
be too late to obviate them, and the result would be that few judgments would
stand the test of an appeal.” ’ ” [Citation.]’ (Fn. omitted; [citations].)” (Simon,
supra, 25 Cal.4th at p. 1103, italics added.)22

22
(See also In re Seaton (2004) 34 Cal.4th 193, 198 [“To consider on appeal a
defendant’s claims of error that were not objected to at trial ‘would deprive the
People of the opportunity to cure the defect at trial and would “permit the
defendant to gamble on an acquittal at his trial secure in the knowledge that a
conviction would be reversed on appeal” ’ ”]; People v. Scott (1994) 9 Cal.4th
331, 353 [by enforcing a forfeiture rule, courts “hope to reduce the number of
errors committed in the first instance and preserve judicial resources otherwise
(footnote continued on next page)
23



Consistent with this general rule, various treatises and benchbooks have
highlighted the particular forfeiture rule at issue in the present case and set out in
Henrioulle, supra, 20 Cal.3d 512. One leading text states: “An objection to a
defective verdict must be made before the jury is discharged. . . . [D]efects
apparent when the verdict was read, and that could have been corrected, are
waived [forfeited] by counsel’s failure to timely object . . . unless the verdict itself
is inconsistent.” (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter
Group 2008) ¶ 9:685, italics deleted; see also id., ¶ 9:672.)23
As suggested above, the basis for the requirement of an objection to
asserted imperfections in the polling of a jury concerning its verdict is no different
from the basis for requiring objections to other equally important procedural
matters at trial — ranging from the introduction of otherwise inadmissible
evidence or dispositive procedural rulings,24 to various constitutional violations.25

(footnote continued from previous page)
used to correct them”]; see generally People v. Partida (2005) 37 Cal.4th 438,
434.)
23
Similarly, another widely regarded source states: “[F]ailure to object to a
verdict before the discharge of a jury and to request clarification or further
deliberation precludes a party from later questioning the validity of that verdict if
the alleged defect was apparent at the time the verdict was rendered and could
have been corrected.” (Cal. Civil Courtroom Handbook & Desktop Reference
(Thomson 2008) § 39:5.) As observed in Witkin: “Even a seriously prejudicial
kind of error in the conduct, deliberations, or verdict of the trial may be waived
[forfeited] by failure to raise it in a timely manner. [¶] . . . [¶] . . . Where the error
is a defect in the verdict, counsel should request its correction or clarification
[citation]; failing this, counsel may lose the right to object. [Citations.]”
(7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 376, p. 438; see also 3 Cal. Civil
Procedure During Trial (Cont. Ed. Bar 3d. ed. 1995) § 22:31; Cal. Judges
Benchbook: Civil Proceedings — Trial (CJER 1997) §§ 15.21, 15.28.)
24
(E.g., Simon, supra, 25 Cal.4th 1082, 1097-1108 [forfeiture of claims under
criminal venue statutes]; 6 Witkin & Epstein, Cal. Criminal Law, supra, § 37,
(footnote continued on next page)
24


The requirement of an objection is premised upon the idea that a party should not
sit on his or her hands, but instead must speak up and provide the court with an
opportunity to address the alleged error at a time when it might be fixed. If
defendants had so acted in the present case, the trial court could have inquired of
Juror Brown concerning his vote on apportionment — and if that response did not
supply a ninth vote on that matter, the court could have sent the jury back for
further deliberations. By so proceeding, and consuming at most a few minutes of
time, the problem could have been resolved back in May 2006, instead of now —
approximately three years later.
In reaching a contrary conclusion, the Court of Appeal suggested, first, that
no forfeiture occurred, because the polling defect was not “apparent” to the trial
court, to the jurors, or to counsel. (See Henrioulle, supra, 20 Cal.3d 512, 521 [a
claim may be forfeited “if the alleged defect was apparent at the time the verdict

(footnote continued from previous page)
pp. 497-500 [listing numerous illustrations of the forfeiture rule, including
defective accusatory pleading, challenges to composition of the jury and the
procedure it has followed, admission of inadmissible evidence]; accord, 9 Witkin,
Cal. Procedure, supra, § 400 [noting application of forfeiture rule in a broad range
of civil matters]; see also Wegner et al., Cal. Practice Guide: Civil Trials and
Evidence (The Rutter Group 2008) ¶ 8:3282 [“Even inadmissible evidence is
evidence,” and “unless the objection is preserved, any [relevant] evidence of
record is sufficient to support a judgment on appeal”].)
25
(E.g., People v. Alvarez (1996) 14 Cal.4th 155, 192, fn. 7 [forfeiture of
constitutional claims related to physical restraints at trial]; People v. Crittenden
(1994) 9 Cal.4th 83, 126 [forfeiture of right to assert a Miranda violation];
People v. Mickey (1991) 54 Cal.3d 612, 664-665 [the forfeiture rule applies to
claims of error under the state and federal Constitutions]; People v. Gallego
(1990) 52 Cal.3d 115, 166 [applying the objection/ forfeiture rule to claim of error
under article I, section 16 of the state Constitution]; People v. Wilson (1963) 60
Cal.2d 139, 146-148 [forfeiture of constitutional and statutory rights to speedy
trial].)
25


was rendered and could have been corrected”].) In this respect the appellate court
characterized the polling as “confusing” and concluded that “[t]here was no
realistic opportunity for defense counsel to object . . . even if an error had been
noticed,” because the trial court “took the matter out of counsel’s hands.” In
addition, the appellate court suggested the trial court erred by failing to ask
counsel whether there was “anything further” before, rather than after, the court
discharged the jury.
The record reflects, however, that the polling was methodical. The trial
court’s polling of Juror Brown concerning most of the special verdict questions —
but not the apportionment question — was not confusing, nor did defense
counsel’s failure to notice this omission establish that the polling was confusing.
This situation was not one in which it was impractical to expect defense counsel to
be able to follow the course of the polling and make a contemporaneous objection
to any omission. Indeed, as observed earlier, immediately prior to polling the jury
the trial court noted its hope that each juror would have available his or her “cheat
sheet” — the personal “colored copy” of the special verdict form (see ante, fn. 1).
The record also reflects that counsel for both parties had copies of the special
verdict form immediately prior to the commencement of the jury’s deliberations.
Under these circumstances, it is reasonable to assume that thereafter —
immediately after the jury’s delivery of its verdict and immediately prior to the
trial court’s polling of the jury — all trial counsel had in their possession copies of
the special verdict form, with which they could follow the trial court’s polling and
take notes concerning the response of each juror. Evidently, defense counsel
failed to do so accurately, but this was no fault of the trial court.
Nor, contrary to the appellate court’s characterization, did the trial court
take the matter out of defense counsel’s hands. After accepting the verdict and
then thanking the jury at length, the court simply proceeded to address postverdict
26
matters. The court was not obligated to ask counsel whether there was “anything
further” prior to discharging the jury. By asking that question afterward, the court
did not deprive defense counsel of earlier opportunities to object when the court
had completed its polling of Juror Brown, or immediately after the court had
thanked the jurors for their service but before the jury was discharged.
We conclude that the incomplete polling of Juror Brown was indeed
apparent at the time the verdict was rendered and could have been corrected.”
(Henrioulle, supra, 20 Cal.3d 512, 521, italics added.) The polling defect is
apparent to any reader of the reporter’s transcript. The circumstance that it
evidently escaped notice by defense counsel and others does not indicate that the
incomplete polling was “not apparent” as we employed that term in Henrioulle.
As plaintiffs observe: “If a ‘defect’ like the one here were deemed not ‘apparent,’
counsel for losing parties — in both civil and criminal cases — would have an
incentive to keep mum about a possible yet curable defect and voice objections
only after the jury is discharged, when a cure is too late, thus mandating reversal
and retrial. Although most counsel would resist that temptation, neither parties
nor counsel should be given that incentive in the first instance. Rather, the
incentive should be in favor of mandating an objection to increase the chances that
such defects are detected and cured before the jury is discharged.”
Nor do we find persuasive the Court of Appeal’s attempt to distinguish
prior cases involving forfeiture. The appellate court below observed that “[i]n
both Henrioulle . . . and Silverhart . . . , there were at least nine votes to support a
verdict at the time the waiver occurred,” and it speculated that in Henrioulle, we
found the asserted defect (the absence of evidence that the same nine jurors had
voted for each special verdict element) could be forfeited because that alleged
defect was “less severe than an eight-vote special verdict, the defect in this case.”
(Italics added.) The appellate court below added: “It is also possible to view the
27
written verdict as inconsistent with the oral verdict as disclosed by the polling.
Inconsistent verdicts can be reviewed on appeal even if not objected to below.”
As noted earlier, it cannot be established that the verdict in the present case
was supported by eight votes only, rather than by nine or more votes. Nor do we
find support for the suggestion that forfeiture of the right to challenge the polling
of a jury depends upon the severity of the alleged defect in the verdict.26 Nor,
contrary to the Court of Appeal’s assertion, is it possible to view the defect here as
an “inconsistent verdict.”27
For these reasons, we reject the Court of Appeal’s determination that
defendants did not forfeit their claim of incomplete polling.28

26
Many of the prior decisions that have enforced the general forfeiture rule
(see ante, fns. 23 & 24) have involved significant and important statutory and
constitutional rights in a broad range of civil and criminal proceedings, including
capital cases.
27
An “inconsistent” verdict is one that is internally inconsistent — not merely
a verdict as to which the polling was incomplete, or a verdict that has been
changed by the response of one or more jurors at the time of polling. (Henrioulle,
supra,
20 Cal.3d 512, 521, fn. 11 [“although some jurors may have voted
inconsistently, the verdict itself is not inconsistent” (italics added)]; cf. Mizel v.
City of Santa Monica
(2001) 93 Cal.App.4th 1059, 1071 [special verdict was
inconsistent when some responses indicated that a dangerous curb caused
plaintiff’s injuries, but other responses indicated the same curb had “not created a
reasonably foreseeable risk of the kind of injury suffered by” the plaintiff]; Morris
v. McCauley’s Quality Transmission Service
(1976) 60 Cal.App.3d 964, 970
[verdict necessarily implying that the defendant was negligent, and another verdict
in the same case necessarily implying that the defendant was not negligent, were
internally inconsistent].)
28
Our conclusion is consistent with the decision in Suggs, supra, 64 S.W.3d
658. As described ante, in footnote 15 in that case, the trial judge polled only nine
of the required ten jurors who had signed a verdict and the plaintiff attempted to
assert on appeal an irregularity in the polling. The plaintiff, claiming
“fundamental” constitutional error (Suggs, at p. 660), sought to invalidate the
verdict on the ground that it was not supported by the requisite number of jurors.
(footnote continued on next page)
28


2
As noted, defendants suggest that the appellate court’s no-forfeiture
determination was correct, although for reasons upon which the Court of Appeal
did not rely. We find defendants’ alternative analysis to be unpersuasive.
First, defendants reiterate their assertion that the verdict was supported by
only eight votes and hence was “not a constitutional verdict as a matter of law” —
a defect that, defendants claim, cannot be forfeited. As observed earlier, however,
defendants’ argument rests upon a faulty premise: They rely upon the various
juror declarations, but as also observed earlier, the Court of Appeal’s conclusion
that all of the declarations are inadmissible is not before us and we treat that
question as settled for purposes of this case. Accordingly, as we have explained,
defendants’ claim that there were eight votes only — and not nine or more votes in
support of the verdict — has not been, and cannot be, established by admissible
evidence.
Defendants also assert that their claim of incomplete polling was not
forfeited because, they observe, there is no indication that their failure to object
was “the result of a desire to reap a ‘technical advantage’ or engage in a ‘litigious
strategy.’ ” (Woodcock v. Fontana Scaffolding & Equipment Co. (1968) 69 Cal.2d
452, 456, fn. 2 (Woodcock).)
In Woodcock, a jury returned a verdict for the plaintiff, a worker who had
been physically injured in the course of employment, in the sum of $13,000.
Thereafter, on appeal, the parties contested an alleged ambiguity in the verdict.

(footnote continued from previous page)
The appellate court in Suggs concluded that the plaintiff “waived” the claim by
failing “to object to the fact that only nine jurors were polled” (ibid.) at the time of
the polling, when the error could have been corrected. (Id., at p. 661.)
29


The defendant asserted that the $13,000 represented the entire amount of the
plaintiff’s damages, and hence that sum was required to be reduced by the amount
of workers’ compensation benefits received by the plaintiff. The plaintiff argued
that the $13,000 sum already reflected an offset by the jury for the workers’
compensation payments. We upheld the defendants’ position, finding that, in light
of the jury instructions, the verdict was not ambiguous, that it included workers’
compensation payments, and hence that the amount of the damages awarded was
required to be reduced accordingly. (Woodcock, supra,, 69 Cal.2d 452, 457-459.)
Despite arriving at that conclusion, however, we also observed, in dictum, that
when a verdict is truly ambiguous, the adversely affected party should request that
the trial court act under section 61929 to secure from the jury a “ ‘more formal and
certain verdict.’ ” (Woodcock, supra, 69 Cal.2d at p. 456.) In this respect, we
further observed in a footnote that is presently relied upon by defendants:
“Frequently, failure to object to the form of a verdict before the jury is discharged
has been held to be a waiver of any defect. [Citations.] However, waiver is not
automatic, and there are many exceptions. [Citations.] [¶] Waiver is not found
where the record indicates that the failure to object was not the result of a desire
to reap a ‘technical advantage’ or engage in a ‘litigious strategy.’ [Citations.] . . .
In . . . many . . . cases, waiver is not an issue where a defect is latent and there is
no hint of ‘litigious strategy.’ [¶] There was no waiver here because, in light of
the instructions, the verdict was not ambiguous. [Citation.] Accordingly, there
was nothing to clarify. But even if the verdict were ambiguous, there is no hint of
a purpose to achieve a ‘technical advantage’ or fulfill a ‘litigious strategy,’ and

29
That statute provides: “When the verdict is announced, if it is informal or
insufficient, in not covering the issue submitted, it may be corrected by the jury
under the advice of the Court, or the jury may be again sent out.”
30


defendant should not be estopped to make his objections.” (Id., at p. 456, fn. 2,
italics added.)
Defendants assume that Woodcock’s articulated exception to the waiver
(forfeiture) rule for ambiguous verdicts, as to which a party failed to object and
seek a more formal verdict under section 619, applies as well to the incomplete
polling of a juror under section 618. Defendants do not cite any decision that has
so extended the exception described in Woodcock’s dictum, however,30 and we
decline to so extend it here.31 We agree with plaintiffs that such an exception to
the objection and forfeiture rule would be unwarranted in the context of
incomplete polling under section 618. As plaintiffs observe, a court generally can
avoid or cure an ambiguity in a verdict by interpreting it — as we did in
Woodcock, reading the verdict’s “ ‘language . . . in connection with the pleadings,
evidence and instructions’ ” (Woodcock, supra, 69 Cal.2d 452, 456) — and
thereby obviating a need for reversal and retrial. But without a timely objection to
incomplete polling, a court cannot avoid or cure the defect: after the jury’s
discharge, the court can neither complete the polling nor return the jury to its
deliberations.

30
The cases that have applied the Woodcock dictum to find an absence of
forfeiture have involved, similarly to Woodcock, ambiguous verdicts or informal,
inconsistent, or mistaken verdicts that could be corrected under section 619; they
have not concerned claims of incomplete polling under section 618. (Saxena v.
Goffney
(2008) 159 Cal.App.4th 316, 327-328; Schiernbeck v. Haight (1992) 7
Cal.App.4th 869, 877-879; Byrum v. Brand (1990) 219 Cal.App.3d 926, 936-937.)
31
Even if the Woodcock exception were applicable outside the context of
ambiguous verdicts and in the situation posed by incomplete polling, it is not clear
that the exception would apply in the present case. Although we observed in
Woodcock that “in many . . . cases, waiver is not an issue where a defect is latent
(Woodcock, supra, 69 Cal.2d 452, 456, fn. 2, italics added), as noted above the
polling defect in the present case must be characterized as apparent, and not latent.
31


We conclude that defendants, by failing to timely object to the incomplete
polling of Juror Brown, forfeited their claim of error.32
III
The judgment rendered by the Court of Appeal is reversed. The matter is
remanded to that court for proceedings not inconsistent with this opinion.
GEORGE,
C.
J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

32
In any event, defendants have not established prejudice from any error that
may have arisen from the incomplete polling. (College Hospital Inc. v. Superior
Court
(1994) 8 Cal.4th 704, 715 [“trial error is usually deemed harmless in
California unless there is a ‘reasonabl[e] probab[ility]’ that it affected the
verdict”]; People v. Watson (1956) 46 Cal.2d 818, 836 [adopting the “reasonable
probability” standard for asserting prejudicial error on appeal].) As plaintiffs
observe, defendants cannot carry their burden: “If the trial court had polled Juror
Brown on fault, one of two things would have happened: (1) he would have
indicated his agreement with the 80-20 apportionment, in which case there would
have been a proper verdict and the court would have discharged the jury, or (2) he
would have indicated his disagreement with the 80-20 apportionment, in which
case the trial court would have sent the jury back to deliberate on fault. Recall,
however, that nine jurors were polled as having voted for at least an 80-20
apportionment — eight for 80-20 [citation] and one for 90-10 [citation]. This
makes it highly improbable that redeliberations would have caused a majority of
the jurors to assess less than 20 percent fault to defendants.” (Accord, Suggs,
supra,
64 S.W.3d 658, 661-662 [finding that a claim of incomplete polling was
forfeited, but that in any event, any assumed error was harmless on the facts of the
case].)
32


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Keener v. Jeld-Wen, Inc.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 161 Cal.App.4th 848
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S163430
Date Filed: May 7, 2009
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: John S. Einhorn

__________________________________________________________________________________

Attorneys for Appellant:

McAtee • Harmeyer, Jeff G. Harmeyer and Greg A. McAtee for Defendants and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Reed Smith, Paul D. Fogel, Dennis Peter Maio; The Zucker Law Firm, Andrew J. Zucker; The Basile Law
Firm and Jude Basile for Plaintiffs and Respondents.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Jeff G. Harmeyer
McAtee • Harmeyer
110 West A Street, Suite 950
San Diego, CA 92101
(619) 231-9800

Paul D. Fogel
Reed Smith
Two Embarcadero Center, Suite 2000
San Francisco, CA 94111
(415) 543-8700


Document Outline

  • ��
  • ��
  • ��
  • ��

Petition for review after the Court of Appeal affirmed in part and reversed in part the judgment in a civil action. This case presents the following issues: (1) Does failure to object to incomplete polling before the jury is discharged waive the argument that the polling was incomplete and the verdict invalid? (2) For purposes of Code of Civil Procedure section 618, which provides that a jury verdict "is complete and the jury discharged from the case" if "no disagreement is expressed" upon polling the jurors, is a juror's silence during polling, if the court failed to poll the juror, an "expressed" disagreement with the verdict?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 05/07/200946 Cal. 4th 247, 206 P.3d 403, 92 Cal. Rptr. 3d 862S163430Review - Civil Appealclosed; remittitur issued

JELD-WEN, INC. v. S.C. (KEENER) (S137314)


Parties
1Keener, Theresa (Plaintiff and Respondent)
Represented by Paul D. Fogel
Reed, Smith, LLP
Two Embarcadero Center, Suite 2000
San Francisco, CA

2Keener, Theresa (Plaintiff and Respondent)
Represented by Andrew Zucker
The Zucker Law Firm, APC
43434 Business Park Drive
Temecula, CA

3Jeld-Wen, Inc. (Defendant and Appellant)
Represented by Jeff G. Harmeyer
McAtee Harmeyer, LLP
110 West A Street, Suite 950
San Diego, CA

4Keener, Micah (Plaintiff and Respondent)
Represented by Paul D. Fogel
Reed, Smith, LLP
Two Embarcadero Center, Suite 2000
San Francisco, CA

5Solis, Hector (Defendant and Appellant)
Represented by Jeff G. Harmeyer
McAtee Harmeyer, LLP
110 West A Street, Suite 950
San Diego, CA


Opinion Authors
OpinionChief Justice Ronald M. George

Disposition
May 7 2009Opinion: Reversed

Dockets
May 9 2008Petition for review filed
Theresa Keener, et al., respondents Paul D. Fogel, counsel
May 9 2008Record requested
via phone
May 13 2008Received Court of Appeal record
two doghouses ( volume 1 & 2 )
Jun 18 2008Petition for review granted (civil case)
The petition for review is granted. George, C.J., was absent and did not participate. Werdegar and Corrigan, JJ., were absent and did not participate. Votes: Chin, A.C.J., Kennard, Baxter, and Moreno, JJ.
Jun 23 2008Certification of interested entities or persons filed
counsel for respondents (Keener)
Jun 25 2008Request for extension of time filed
Counsel for respondents requests (60) day extension of time to Sept. 16, 2008, to file the opening brief on the merits.
Jun 25 2008Certification of interested entities or persons filed
counsel for aplt. (Jeld-Wen)
Jul 14 2008Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 16, 2008.
Jul 31 2008Opening brief on the merits filed
Theresa Keener, et al., respondents, by Paul D. Fogel, Counsel
Aug 8 2008Request for extension of time filed
counsel for aplts. (JELD-WEN, Inc., and Hector Solis) requests a 60-day extension of time to 10-29-08 to file the answer brief on the merits.
Aug 15 2008Extension of time granted
On application of appellants and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 29, 2008.
Sep 9 2008Received Court of Appeal record
Appellants' Appendix (9 volumes).
Sep 30 2008Answer brief on the merits filed
counsel for aplts. JELD-WEN, Inc., (8.25.(b))
Oct 3 2008Request for extension of time filed
Counsel for resps. (Keener) requests extension of time to November 19, 2008, to file the reply brief on the merits.
Oct 9 2008Extension of time granted
On application of respondents and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including November 19, 2008.
Nov 12 2008Request for extension of time filed
Counsel for respondent requests extension of time to December 5, 2008, to file the reply brief on the merits.
Nov 20 2008Extension of time granted
On application of respondent and good cause appearing, it ordered that the time to serve and file the reply brief on the merits is extended to and including December 5, 2008.
Dec 5 2008Received:
counsel for resps. (Keener) reply brief on the merits.
Dec 5 2008Application to file over-length brief filed
counsel for resps. (Keener) reply brief
Dec 5 2008Reply brief filed (case fully briefed)
counsel for resps. w/permission
Feb 3 2009Case ordered on calendar
to be argued on Tuesday, March 3, 2009, at 9:00 a.m., in San Francisco
Mar 3 2009Cause argued and submitted
May 6 2009Notice of forthcoming opinion posted
May 7 2009Opinion filed: Judgment reversed
The judgment rendered by the Court of Appeal is reversed. The matter is remanded to that court for proceedings not inconsistent with this opinion. OPINION BY: George, C. J. --joined by: Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan JJ.
May 14 2009Request for modification of opinion filed
Jun 5 2009Time extended to consider modification or rehearing
The finality of the opinion in the above-entitled case is hereby extended to and including July 6, 2009.
Jun 10 2009Request for modification denied
Jun 10 2009Remittitur issued
Jun 17 2009Returned record
records sent to CA 4/1 (5 doghouses)
Jun 19 2009Received:
Receipt for Remittitur

Briefs
Jul 31 2008Opening brief on the merits filed
Theresa Keener, et al., respondents, by Paul D. Fogel, Counsel
Sep 30 2008Answer brief on the merits filed
counsel for aplts. JELD-WEN, Inc., (8.25.(b))
Dec 5 2008Reply brief filed (case fully briefed)
counsel for resps. w/permission
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 11, 2009
Annotated by Kathleen Fox

Plaintiffs, motorcyclist’s survivors, brought a wrongful death action against defendant truck driver, his employer, and the company that leased the truck after a fatal accident. At trial, the jury found the defendant negligent and allocated 80% fault to the defendants. Defendants appealed, arguing that the jury was incorrectly polled and less than the requisite nine jurors concurred on the issue of fault allocation. The Supreme Court granted review to address issues concerning jury polling under section 618 of the California Code of Civil Procedure. The Court held that a juror’s silence at polling, brought about by the failure of the trial court to poll that particular juror on one of several special verdict questions, does not constitute expressed disagreement with the verdict and does not prevent the trial court from accepting the verdict as complete and discharging the jury. The Court further held that a party’s failure to object to incomplete polling before the jury is discharged forfeits any claim of irregularity in polling procedure.

Nov 11, 2009
Annotated by Kathleen Fox

• In a civil case, when a jury is composed of 12 persons, it is sufficient if any nine jurors arrive at each special verdict, regardless of the jurors’ votes on other special verdict questions.

• Polling procedure in civil cases is governed by California Code of Civil Procedure section 618.

• Section 618 creates a rebuttable presumption: If a verdict appears complete, it is complete unless there is an affirmative showing [during polling] to the contrary.

• A juror may change his or her vote at the time of polling.

• A juror’s silence at polling, brought about by the trial court’s failure to poll that particular juror on one of several special verdict questions, does not constitute an expressed disagreement with the verdict under California Code of Civil Procedure section 618, and hence does not prevent the trial court from accepting the verdict as complete and discharging the jury.

• Section 618 requires affirmative disagreement – an utterance, statement, or some similar active conduct – of more than one fourth of the jurors in order to prevent a trial court from finding the verdict to be complete and discharging the jury.

• A party’s failure to object to incomplete polling before the jury is discharged forfeits any claim of irregularity in polling procedure.