Juror was discharged and replaced too hastily without adequate investigation, after two fellow jurors complained that she did not participate in the first 90 minutes of deliberations. A trial court may discharge a juror on good cause shown that the juror is unable to perform his duty, but the inability to perform must appear on the record as a demonstrable reality. Here, the trial court erred in discharging juror #7 after hearing complaints from jurors #1 and #2 that #7 was not participating in deliberations during the first 90 minutes of jury deliberations. Before discharging the juror, the trial court should have conducted a more thorough investigation including asking juror #7, the foreperson, and other jurors about whether deliberations were proceeding properly. Since the verdict against appellant was 12-0 on liability, that verdict was not reversed, but the 9-3 verdict on apportionment of liability could have been affected by the hasty discharge of juror #7 so it was reversed.
California Court of Appeal, Second District, Division 6 (Perren, J.); March 9, 2017; 2017 WL 930813