AMCORD, INC., et al.

CASE NO: 274075


Dept.: 514
Date Filed: February 16, 2007
Trial Date: October 15, 2007

Hon. Thomas J. Mellon, Jr.

Plaintiff Martin O. Lujan submits his Response to the Motion to Dismiss Juror Gunther Pott and Memorandum of Points and Authorities in Support Thereof (“Motion”) and would respectfully show this Court as follows:


Defendant Kaiser Gypsum Company, Inc. (“Kaiser Gypsum”), joined by other defendants, has asked the Court to dismiss juror Gunther Pott, Juror Number 1802170, from the panel in this case. The motion is based on Mr. Pott’s expression of “ethical concerns” regarding the need for individuals and corporations to assume responsibility for the consequences of their actions. Trial Transcript, attached as Exhibit A to Motion, at 166. The Court, citing the “pretty extensive discussion” of Mr. Pott’s “moral and ethical concerns,” concluded that he could serve as an impartial juror. Id. As it happens, Mr. Pott’s general attitudes are fairly consistent with the law governing strict liability and respondeat superior, but the correctness of his views is not at issue. The only question before the Court is whether Mr. Pott’s moral principles disqualify him from jury service. The relevant case law demonstrates beyond serious question that Mr. Pott is qualified to serve.


The jury is “a fundamentally human institution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of the institution. . . . If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.” In re Hamilton (1999) 20 Cal.4th 273, 296 (internal quotation marks and citations omitted). A juror’s moral beliefs are not grounds for disqualification unless those beliefs “supplant[] the law or instructions” given by the Court. People v. Lewis (2001) 26 Cal.4th 334, 390. Jurors “are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.” Id. (citation omitted).

A juror may be disqualified for “actual bias,” which means “the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” People v. Nesler (1997) 16 Cal.4th 561, 581 (quoting Code Civ. Proc., § 225, subd. (b)(1)(C)). To warrant discharge, a juror’s alleged bias must “appear in the record as a demonstrable reality.” People v. Holloway (2004) 33 Cal.4th 96, 124.

Determining whether a prospective juror can be impartial is “within the broad discretion of the trial court. . . . A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the juror’s responses in deciding whether to remove the juror for cause.” People v. Bonilla (2007) 41 Cal.4th 313, 339. Where “answers given on voir dire are equivocal or conflicting, the trial court’s assessment of the person’s state of mind is generally binding on appeal.” People v. DePriest (2007) 42 Cal.4th 1, 20.

Contrary to Kaiser Gypsum’s assertion, the trial court is not required to base its determination on a particular statement viewed in isolation. On the contrary, the trial court should consider the totality of the prospective juror’s responses, as well as the juror’s “demeanor, tone, and credibility.” Id. at 21 (citation omitted). The trial court may evaluate a prospective juror’s impartiality “even though, as is often true, he has not expressed his views with absolute clarity.” Id. (citation omitted).

Kaiser Gypsum is unable to cite a single case that supports its argument with respect to actual bias. Kaiser Gypsum cites a handful of cases in which jurors were disqualified because they had knowledge of extraneous facts about an actual party in the case. None of those cases involve the sort of ethical concerns expressed by Mr. Pott. In fact, Kaiser Gypsum rather tellingly ignores the most analogous cases, which involve jurors with strong beliefs about the death penalty. California courts have consistently held that such beliefs do not necessarily disqualify a juror.

The fact that a prospective juror “zealously opposes or supports the death penalty” does not constitute actual bias unless “it is ‘unmistakably clear’ the prospective juror would ‘automatically’ vote for life or death.” DePriest, 42 Cal.4th at 20 (citations omitted). In the same way, the fact that Mr. Pott favors the acceptance of personal responsibility does not mean that he would be unable to follow the law as instructed by the Court.

In People v. Ledesma (2006) 39 Cal.4th 641, a prospective juror “stated several times that he definitely would vote for the death penalty” and indicated that “anyone who intentionally kills another person automatically should receive the death penalty.” Id. at 672. The juror then stated that “if he were instructed that he must consider other evidence, he would follow the instructions.” Id. The Supreme Court held that the trial court had properly denied a challenge for cause, based on its conclusion that the juror would follow the law “[d]espite the personal opinions he asserted at the beginning of voir dire . . . .” Id. If a juror with such strong views is not considered biased, it is absurd to suggest that Mr. Pott’s moral views should disqualify him from serving in this case.

The same analysis applies in the civil context. A prospective juror’s general attitudes toward the claims made in a lawsuit do not necessarily demonstrate actual bias. In Graybill v. De Young (1905) 146 Cal. 421, the Supreme Court reviewed a similar challenge to a prospective juror in a libel case. The juror, a journalist, stated that he believed that libel suits were often speculative and “unwarranted by the facts.” Id. at 422. He “seemed to have this same opinion of ‘any kind of damage suit’” and “thought . . . his adverse opinion of damage suits might create a prejudice in his mind and make him unfit to act as a juror.” Id. Despite these statements, the Supreme Court affirmed the denial of the challenge, citing the juror’s statement that he “would try the case upon the evidence and upon the law given by the court; meaning no doubt that he would be guided by the instructions of the court as to the law of the case, and beyond this would consider only the evidence produced in court.” Id. at 423.

Lacking any genuine evidence of bias, Kaiser Gypsum simply mischaracterizes Mr. Pott’s views. Kaiser Gypsum asserts that Mr. Pott expressed a “prejudice against large companies.” Motion at 6. Mr. Pott expressed nothing of the sort. He explained that his ethical concerns about responsibility apply to individuals, families and corporations large and small. No reasonable person could conclude that Mr. Pott is biased against “large companies.” Kaiser Gypsum also asserts that Mr. Pott’s ethical concerns will make the damages award “higher than it otherwise might be.” Motion at 6. This assertion is simply a figment of Kaiser Gypsum’s imagination. Mr. Pott never suggested that his concerns had anything to do with the amount of damages, nor that he would be inclined to award a higher amount than any other juror.

Setting aside Kaiser Gypsum’s fanciful interpretations of Mr. Pott’s statements, nothing in the record supports a claim of actual bias. The Court engaged in an “extensive discussion” of Mr. Pott’s beliefs and determined that he was capable of being impartial. The Court was entirely within its discretion in making this determination, and the relevant case law confirms that the Court’s approach was correct.


Mr. Pott’s ethical principles do not disqualify him from serving on a jury. The Plaintiff respectfully requests that this Court deny the motion to dismiss Mr. Pott.

Dated: October 25, 2007.

Respectfully submitted,