BRASSFIELD v. MORELAND SCHOOL DISTRICT

Filed 7/6/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MICHAEL BRASSFIELD, H028855

Plaintiff and Appellant, (Santa Clara County

Superior Court

v. No. 1-03-CV-817409)

MORELAND SCHOOL DISTRICT,

Defendant and Respondent.

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Plaintiff Michael Brassfield appeals from a judgment in favor of defendant Moreland School District (Moreland). He claims that reversal is required because an alternate juror (the alternate) was present in the jury room for 15 minutes at the beginning of the jury's deliberations before her presence was discovered and she was removed. We conclude that the error was not reversible per se and that the presumption of prejudice was rebutted. Consequently, we find the error harmless and affirm the judgment.

I. Background

Brassfield sued Moreland for breach of contract and negligent misrepresentation, and the action was tried to a jury. After the trial jurors had been instructed and had gone into the jury room to deliberate, the court clerk and the bailiff discovered that the alternate was in the jury room with the trial jurors. The bailiff removed the alternate from the jury room after about 15 minutes of deliberations.

The trial jurors were returned to the courtroom, and the trial judge instructed them to â€