Opinion

This is an action for damages for “embracery” and emotional distress, brought by the plaintiff in a former action for personal injury, against one of the defendants in that action and one of the jurors in that action. The trial court sustained, without leave to amend, a demurrer to that complaint. Plaintiff has appealed; we affirm.

The gist of plaintiff’s complaint is stated as follows:

The record before us reflects that these allegations, supported by declarations of other jurors, were submitted to the trial judge in an after-judgment hearing and that that judge ruled as follows: “Although the contents of these declarations reflect serious misconduct, the court concludes that no further action should be undertaken in the absence of a motion for new trial.” No motion for a new trial was ever made.

The briefs discuss, at length, whether California recognizes a civil action for damages for embracery and whether the so-called “judicial immunity” extends to jurors. Those are interesting questions which we need not, and do not, here examine and on which we express no opinion.

However, it seems clear that any such action would be disfavored for reasons of public policy and it should not be allowed unless a litigant has no other means of redress. Here, the facts now relied on obviously were known to the plaintiff before the judgment in the prior case had become final and within time for him to have acted on the first trial judge’s suggestion to move for a new trial. Having failed to utilize that mode of redress, which, if his present allegations are true, probably would have resulted in an order granting a new trial at least on the issue of damages, the present action for damages cannot be maintained.

The judgment (order of dismissal) is affirmed.

McClosky, J., and Munoz, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied October 19, 1984. Bird, C. J., Mosk, J., and Grodin, J., were of the opinion that the petition should be granted.

California does have a criminal statute prohibiting embracery. That statute, section 95 of the Penal Code, provides as follows: “Every person who corruptly attempts to influence a juror, or any person summoned or drawn as a juror, or chosen as an arbitrator, or umpire, or appointed a referee, in respect to his verdict in, or decision of any cause, or proceeding, pending, or about to be brought before him, either: [1] One—by means of any communication, oral or written, had with him except in the regular course of proceedings; [1] Two— by means of any book, paper, or instrument exhibited, otherwise than in the regular course of proceedings; [1] Three—by means of any threat, intimidation, persuasion, or entreaty; or, [11 Four—By means of any promise, or assurance of any pecuniary or other advantage; 111 —is punishable by fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison.” (See 2 Witkin, Cal. Crimes (1963 ed.) § 801, p. 754.) No California case of which we have knowledge or which is cited to us recognizes a civil action based on that statute. Assigned by the Chairperson of the Judicial Council.