Fernandez v. Jimenez ( 2019 )

Filed 9/26/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
RACHEL FERNANDEZ et al., B281518
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC511347)
v.
ELBA JANETH JIMENEZ et al.,
Defendants and Appellants.
APPEAL from a judgment and postjudgment order of the
Superior Court of Los Angeles County, Malcolm H. Mackey,
Judge. Affirmed.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup and
Allison A. Arabian for Defendant and Appellant Elba Janeth
Jimenez.
Dentons US and Charles A. Bird for Defendant and
Appellant Maria Elena Rodriguez.
*Pursuant to California Rules of Court, rules 8.1105 and
8.1110, this opinion is certified for publication with the exception
of parts II and III of the Discussion.
Carpenter, Zuckerman & Rowley, Gary S. Lewis and
John C. Carpenter for Plaintiffs and Respondents.
In this wrongful death action, a jury awarded the
deceased’s four children $11,250,000 each in noneconomic
damages. Elba Janeth Jimenez, who killed the children’s mother
while driving drunk, and Maria Elena Rodriguez, who
negligently entrusted her car to Jimenez, appeal the judgment on
the ground it is excessive. Jimenez also contends that the trial
court improperly awarded prejudgment interest. We affirm the
judgment and postjudgment order.
BACKGROUND
I. The lawsuit
Claudia Fernandez died on June 16, 2012 when an
intoxicated Jimenez lost control of her car and struck Claudia,
killing her. Claudia’s children sued Jimenez. They also sued
Rodriguez, whose car Jimenez was driving, for wrongful death
under a negligent entrustment theory.1 At the jury trial,
Jimenez, but not Rodriguez, conceded liability. The following
evidence was elicited.
II. Claudia’s death
By June 16, 2012, Rodriquez and Jimenez had lived
together for five years but had known each other longer. On that
day, they were at a party where Rodriguez saw Jimenez have at
least three shots of tequila. When they left the party, Jimenez
drove them in one car to Jimenez’s mother’s house where
1 Plaintiffs
sued other entities and people, but they were
dismissed before trial and are not parties to this appeal.
2
Rodriguez had left her second car. Jimenez refused to give
Rodriguez the keys to the car and drove away. Soon thereafter, a
police officer noticed Jimenez driving erratically. She evaded
him, exited the freeway, and crashed into a taco truck, where
Claudia was buying food. Jimenez killed Claudia and one other
person.2
Although Rodriguez admitted to a police officer the day
after the accident that she felt Jimenez was not okay to drive,
Rodriguez maintained at trial that she saw nothing in Jimenez’s
behavior and knew of nothing in Jimenez’s history to lead her to
believe Jimenez was too drunk to drive that night.
When she died, Claudia was just 38 years old and the
single mother of four children: Rachel Fernandez, Jeremy Valle,
Donovan Valle, and Ryan Valle.3
III. Rachel
At the time of the accident, Rachel was 22 years old. She
was 26 at trial. Rachel described Claudia as a “cool mom” and
her best friend. Claudia always wanted to have family time, and
one of the things they liked to do together was go to the movies.
Claudia and Rachel particularly loved shopping together. Rachel
described her mother as a hard worker who worked at an animal
2 Jimenezwas convicted of two counts of second degree
murder, of evading an officer, of driving under the influence
(DUI), and of DUI with a blood alcohol level over .08 causing
injury. Jimenez is serving a 30-year-to-life sentence for the
murders.
3We refer to Claudia and her children by their first names
for the sake of clarity, intending no disrespect.
3
hospital. Claudia was organized and provided the structure that
is now missing from their lives. Claudia also provided emotional
support. When Rachel was a senior in high school, she had low
self-esteem and was trying to lose weight before prom. One day,
Rachel discovered Post-its on her bedroom walls telling her she
was beautiful.
When the accident happened, Rachel was living on her own
and studying child development at college. Sometimes her
mother would bring her lunch. After her mother died, Rachel
stopped attending college because she could not concentrate and
lost interest in working with children. She also stopped working
for several months. Although she wants to return to school, she
now does in-home care for people with disabilities. Her goal is to
become a nurse.
When her mother died, Rachel “checked out.” But, when it
came time for her brothers to go back to school, she “clocked back
in” because “it had to be done. They had to go to school.”
Although the extended family thought the boys should live
with their grandmother, Rachel decided to raise her brothers, so
she obtained legal custody of them. In many ways, this has made
her a better person: she is more responsible and has a different
perspective on life. Still, she feels that her life is on hold.
Although Rachel and her brothers had a good sibling
relationship when their mother was alive, Claudia’s death has
driven a wedge between them. Her death put a lot of pressure on
them, and Jeremy, as the oldest boy, has felt it especially. While
Rachel can control her youngest brother, Ryan, she cannot
control Donovan and Jeremy.
4
The siblings went to grief counseling once, but they did not
like talking to a stranger. Rachel felt it did not help her. Rachel
and Jeremy also had some joint sessions.
The children visit their mother’s grave on Mother’s Day,
Father’s Day, Claudia’s birthday, and Christmas. Rachel
explained, they visit on Father’s Day because Claudia “played
both roles.”
Rachel still misses family dinnertime when they would talk
about their day, waking on Sunday mornings to loud Mexican
music, and her mother’s laughter.
IV. Jeremy
When his mother died, Jeremy was 14 years old and was
finishing his sophomore year in high school. At that time he had
C’s and D’s in his classes. He had a D average his junior year,
and a C average his senior year. After Claudia died, Jeremy lost
interest in school and did not graduate because he was not
“emotionally” “okay.” Rachel encouraged him to enroll in adult
school, but he quit after a week.
Currently, Jeremy is a professional gamer and is
developing a game for kids. He first got into gaming when his
mother bought him a Nintendo 64.
Grief counseling helped him a “small amount.”
Claudia had a boyfriend whom Jeremy considered to be his
father, but he left when Claudia died.
When his mother was alive, they had family picnics at the
park. Jeremy described his former family life as what one sees in
films and reads about in books: “[w]e actually did that.”
5
V. Donovan
At the time of his mother’s death, Donovan was 12 years
old. At trial, he was 16 years old. Since Claudia died, he has
attended three high schools because they moved a lot. Donovan
is always napping. After school, he comes home and naps. Then
he gets up and plays video games or watches TV until 1:00 a.m.
or 2:00 a.m., when he goes to sleep.
Donovan was not like this when Claudia was alive, when
he had, in his words, a “happy life.” He and his mom had special
routines; for example, every time she took him to the dentist,
they would eat at Tom’s Jr. Burgers. Claudia had Donovan play
baseball, and she was always with him. But now he, like his
brothers, is into TV, which Rachel thinks is a form of distraction.
Although Donovan is smart, Claudia was the one who
motivated him. He had been getting A’s and B’s when his mother
was alive. With her gone, Donovan is passing only five of his
eight classes.
Donovan has shut down after his mom died. He keeps his
feelings inside and has anger issues, and Rachel fears he will
blow up. Before, Donovan used to walk away when he was mad
but now he can become physical. Once, he hit a wall and dented
it, and he has fought with Jeremy.
VI. Ryan
Ryan was 10 years old when his mother died. At trial, he
was 14 years old and a freshman in high school. Ryan has a
hearing disability and kids take advantage of him. Ryan had
grief counseling in middle school. Now, his goal is to pass his
classes.
6
VII. The jury’s verdict and posttrial motions
The jury found that Rodriguez negligently entrusted her
car to Jimenez. The jury awarded Claudia’s children $11,250,000
each in noneconomic damages, comprised of $5,625,000 for past
damages and $5,625,000 for future damages. The total damage
award therefore was $45 million.
Rodriguez and Jimenez moved for a new trial on the
ground, among others, that the damages were excessive. The
trial court denied the motion.
Based on defendants’ failure to accept a settlement offer
under Code of Civil Procedure section 998 (998 offer), plaintiffs
filed a memorandum of costs asking for $7,145,376 in
prejudgment interest. Defendants moved to tax costs on the
ground they never received the 998 offer. The trial court denied
the motion.
DISCUSSION
I. Excessive damages
In a wrongful death action, “damages may be awarded that,
under all the circumstances of the case, may be just.” (Code Civ.
Proc., § 377.61.) A plaintiff in a wrongful death action is entitled
to recover damages for his or her pecuniary loss, “which may
include (1) the loss of the decedent’s financial support, services,
training and advice, and (2) the pecuniary value of the decedent’s
society and companionship.” (Nelson v. County of Los Angeles
(2003) 113 Cal.App.4th 783, 793.) However, the plaintiff may not
recover for the grief or sorrow attendant upon the death of a
loved one, or for his or her sad emotions and for the sentimental
value of the loss. (Ibid.) “Factors relevant when assessing a
claimed loss of society, comfort, and affection may include the
7
closeness of the family unit, the depth of their love and affection,
and the character of the deceased as kind, attentive, and loving.”
(Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702,
721.) “The pecuniary value of the society, comfort, and protection
that is lost through the wrongful death of a spouse, parent, or
child may be considerable in cases where, for instance, the
decedent had demonstrated a ‘kindly demeanor’ toward the
statutory beneficiary and rendered assistance or ‘kindly offices’ to
that person.” (Corder v. Corder (2007) 41 Cal.4th 644, 661–662.)
The amount of damages to be awarded is a question of fact
committed, first to the discretion of the trier of fact, and then to
the discretion of the trial court on a motion for new trial. (Seffert
v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506 (Seffert).)
An appellate court gives great weight to the determinations of
the jury and the trial court. (Id. at pp. 506–507.) “The amount to
be awarded is ‘a matter on which there legitimately may be a
wide difference of opinion.’ ” (Id. at p. 508.) We can interfere if
the verdict is so large that, “at first blush, it shocks the
conscience and suggests passion, prejudice or corruption on the
part of the jury.” (Id. at p. 507.) There is no fixed standard by
which we can determine whether a jury’s award for this
intangible loss of comfort and society is excessive. (Rufo v.
Simpson (2001) 86 Cal.App.4th 573, 615.) In the absence of some
factor in the record such as inflammatory evidence, misleading
instructions or improper argument by counsel that would suggest
the jury relied upon improper considerations, we usually defer to
the jury’s discretion. (Ibid.) The fact that the verdict is very
large does not alone compel the conclusion the award was
attributable to passion or prejudice. (Ibid.) In assessing a claim
that the jury’s award of damages is excessive, we do not reassess
8
the credibility of witnesses or reweigh the evidence. We consider
the evidence in the light most favorable to the judgment,
accepting every reasonable inference and resolving all conflicts in
its favor. (Westphal v. Wal-Mart Stores, Inc. (1998) 68
Cal.App.4th 1071, 1078.)
Here, Rodriguez and Jimenez, either collectively or
individually, make four arguments why the damage awards
should be reversed: they shock the conscience when compared to
other verdicts, plaintiffs’ counsel preconditioned the jury to
award large damages, counsel introduced evidence about
Jimenez’s prior DUI, and counsel improperly urged the jury to
punish Jimenez.
A. Comparative analysis
Jimenez and Rodriguez contend that an award of
$11,250,000 to each plaintiff shocks the conscience when
compared to other verdicts. Comparing verdicts, however, is of
limited utility. While an appellate court “should consider the
amounts awarded in prior cases for similar injuries, obviously,
each case must be decided on its own facts and circumstances.
Such examination demonstrates that such awards vary greatly.
[Citations.] Injuries are seldom identical and the amount of pain
and suffering involved in similar physical injuries varies widely.”
(Seffert, supra, 56 Cal.2d at p. 508.) Our California Supreme
Court reiterated this point in Bertero v. National General Corp.
(1974) 13 Cal.3d 43. There, in reference to the defendants’
compilation of judgments which had been reversed as excessive,
the court stated, “Those cases do not, in and of themselves,
mandate a reversal here. The vast variety of and disparity
between awards in other cases demonstrate that injuries can
seldom be measured on the same scale. The measure of damages
9
suffered is a factual question and as such is a subject particularly
within the province of the trier of fact. For a reviewing court to
upset a jury’s factual determination on the basis of what other
juries awarded to other plaintiffs for other injuries in other cases
based upon different evidence would constitute a serious invasion
into the realm of factfinding. [Citations.] Thus, we adhere to the
previously announced and historically honored standard of
reversing as excessive only those judgments which the entire
record, when viewed most favorably to the judgment, indicates
were rendered as the result of passion and prejudice on the part
of the jurors.” (Id. at p. 65, fn. 12; see Pool v. City of Oakland
(1986) 42 Cal.3d 1051, 1067–1068, fn. 17 [awards in other cases
of no value in assessing propriety of damages in case before it].)
Seffert, Bertero, and Pool thus instruct that other verdicts may
have some slight relevance, but each verdict stands or falls on its
own merits.4
A review of just a few cases the parties cite demonstrates
why comparing verdicts is of limited value, given the varying
facts, circumstances, and procedural postures. One Court of
Appeal upheld a jury award of $2 million to each of the three
deceased’s adult children where there was evidence they had a
close relationship. (Soto v. BorgWarner Morse TEC Inc. (2015)
239 Cal.App.4th 165, 172–173, 181–183.) Another Court of
Appeal upheld a jury award of $750,000 to each of the deceased’s
two adult children even though they had not seen their father in
years and only maintained their relationship by phone.
4 Based on Seffert, Bertero, and Pool, we deny Jimenez’s
request for judicial notice of verdicts in other cases and of the
consumer index price inflation calculator.
10
(Mendoza v. City of West Covina, supra, 206 Cal.App.4th at
pp. 706, 720–721.) In Shore v. Gurnett (2004) 122 Cal.App.4th
166, a drunk driver killed a bicyclist, whose wife and two sons
then sued for wrongful death. The jury awarded them $7.5
million in compensatory damages, which were not challenged on
appeal. (Id. at p. 170.) Boeken v. Philip Morris USA Inc. (2013)
217 Cal.App.4th 992, 996 upheld a judgment of $12.8 million for
loss of consortium to the decedent’s son against an instructional
error challenge. An older case upheld a $1.5 million award of
compensatory damages to the decedent’s disabled minor child.
(Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d
709, 726–727.)
These cases, like the one before us, involve the loss of a
parent. Still, they are of marginal use in evaluating whether
$11,250,000 to each of Claudia’s four children is excessive. None
of the cases or the ones the parties cite involve the murder of a
loved and loving single mother, whose death has made orphans of
four children, three of whom were then minors. The youngest,
Ryan, was just 10 years old when his mother died. If he has a
normal life expectancy, he will have suffered her absence for
perhaps 30 years or more, as Claudia was just 38 years old when
she was killed. Jeremy and Donovan were both still in school
when Claudia died. Their deteriorating academic and social lives
reflect the absence of her guidance and motivating presence. As
for Rachel, she has made the weighty decision to be both mother
and sister to her brothers, thereby forever altering her life
trajectory. Further, the undisputed evidence is that each child
was individually close to Claudia and that they were a tight-knit
family unit. We cannot conclude that, on these facts, the verdict
shocks the conscience.
11
B. Preconditioning the jury
Jimenez and Rodriguez contend that plaintiffs’ trial counsel
improperly preconditioned the jury during voir dire to award
inflated damages, and Jimenez further argues that such
preconditioning amounted to attorney misconduct.5 We disagree.
Attorney misconduct is an irregularity in the proceedings
and a ground for a new trial. (City of Los Angeles v. Decker
(1977) 18 Cal.3d 860, 870.) To preserve for appeal an instance of
misconduct of counsel during voir dire, an objection must have
been lodged and the objecting party must also have moved for a
mistrial or sought a curative admonition unless the misconduct
was so persistent that an admonition would have been
inadequate to cure the resulting prejudice. (Cassim v. Allstate
Ins. Co. (2004) 33 Cal.4th 780, 794–795.) Even where there is
misconduct, the moving party must demonstrate that the
misconduct was prejudicial so as to justify a new trial. (Id. at
p. 800.)
In a civil jury trial, the judge “shall permit liberal and
probing examination calculated to discover bias or prejudice with
regard to the circumstances of the particular case.” (Code Civ.
Proc., § 222.5, subd. (b)(1).) Improper questioning during voir
dire includes any “question that, as its dominant purpose,
attempts to precondition the prospective jurors to a particular
result, indoctrinate the jury, or question the prospective jurors
5Jimenez refers to this as “anchoring,” where counsel
suggests a high damage figure as a starting point. (See generally
Chapman & Bornstein, The More You Ask for, the More You Get:
Anchoring in Personal Injury Verdicts (1996) 10 Applied
Cognitive Psychology 519.)
12
concerning the pleadings or the applicable law.” (Id., § 222.5,
subd. (b)(3).) Examination of prospective jurors should not be
used “ ‘ “to educate the jury panel to the particular facts of the
case, to compel the jurors to commit themselves to vote a
particular way, to prejudice the jury for or against a particular
party, to argue the case, to indoctrinate the jury, or to instruct
the jury in matters of law.” ’ ” (People v. Fierro (1991) 1 Cal.4th
173, 209.)
Here, defendants argue that plaintiffs’ trial counsel
preconditioned the jury to award high damages by asking if they
would be okay awarding $200 million dollars. Or, as Rodriguez
puts it, counsel encouraged jurors to think they were playing
with Monopoly money by introducing the $200 million number.
Plaintiffs’ counsel, however, did not introduce that number.
Rather, when a juror said she could be fair, counsel told the jury
that plaintiffs may be asking for “hundreds of millions of dollars
collectively for four of them” and asked whether that shocked
anyone. Juror No. 14 and, it appears, the jurors generally,
agreed that was a shocking number. When plaintiffs’ counsel
then asked if anybody thought they could not “have a judgment of
hundreds of millions of dollars,” the trial court sustained defense
counsel’s objection and said it would instruct the jury on what
factors to consider in awarding damages. A juror then asked if
the question was whether he could award “$200 million-plus” and
the trial court pointed out that “we don’t know the amount.” The
trial court then framed the question: “Could you award
substantial damages” if the facts called for it? When plaintiffs’
counsel pressed as to what trouble jurors would have with a
demand in the hundreds of millions of dollars, the trial court
13
repeated that “we’re not getting into that.” A prospective juror6
then commented, “I couldn’t even imagine hundreds of millions of
dollars.”
Plaintiffs’ counsel then told the jurors that they could not
consider whether defendants “could afford it or not,” and the trial
court added that whether someone can afford to pay a judgment
was not a proper question. Counsel, however, said the point of
the questions was to tell jurors to make a decision about the
value of plaintiffs’ loss without “considering the consequences of
the poverty of the defendant.” Upon a juror’s further inquiry
about collecting judgments, the trial court repeated that “[w]e
don’t get into collecting” and that the jury would be instructed on
that issue.
Based on this voir dire, defendants moved for a mistrial,
but the trial court denied the motion. Thereafter, plaintiffs did
ask for $200 million, or $50 million for each plaintiff.
This background shows that plaintiffs’ trial counsel did not
introduce that number. A juror introduced it. In any event, this
was not improper preconditioning. Jurors may be informed of the
damages a plaintiff seeks. (Beagle v. Vasold (1966) 65 Cal.2d
166, 170–171; Wegner et al., Cal. Practice Guide: Civil Trials and
Evidence (The Rutter Group 2018) ¶¶ 5:311, 5:312, p. 5-74.) As
to counsel’s admonishment that the jury should not consider the
defendants’ financial circumstances, it is proper to ask
prospective jurors whether they will apply the law as instructed
by the trial court. (See People v. Tolbert (1969) 70 Cal.2d 790,
812.)
6 Thereporter’s transcript indicates that a witness made
the statement, but we assume it was a juror.
14
Moreover, even if informing prospective jurors that
plaintiffs were seeking hundreds of millions of dollars and that
jurors should not consider defendants’ financial circumstances
was error, it was not prejudicial. To evaluate prejudice, we
examine “ ‘the entire case, including the evidence adduced, the
instructions delivered to the jury, and the entirety of [counsel’s]
argument,’ in determining whether misconduct occurred and
whether it was sufficiently egregious to cause prejudice.
[Citation.] ‘Each case must ultimately rest upon a court’s view of
the overall record, taking into account such factors, inter alia, as
the nature and seriousness of the remarks and misconduct, the
general atmosphere, including the judge’s control, of the trial, the
likelihood of prejudicing the jury, and the efficacy of objection or
admonition under all the circumstances.’ ” (Garcia v. ConMed
Corp. (2012) 204 Cal.App.4th 144, 149.)
We cannot agree that the limited voir dire at issue inflamed
the passions of the jury, especially given the evidence we detailed
above. The jury awarded much less than $50 million per
plaintiff, suggesting the plaintiffs’ demand for $200 million did
not inflame the jury’s passions. Moreover, the trial court
instructed the jury that no specific amount was yet before it, and
the jury was otherwise properly instructed on damages with
CACI Nos. 3901 (introduction to tort damages, liability
established), 3902 (noneconomic damages), 3905 (items of
noneconomic damage), and 3921 (wrongful death of an adult).
The trial court also instructed the jurors not to consider punitive
damages to punish defendants (CACI No. 3924).
C. Jimenez’s prior DUI conviction
Jimenez had a prior DUI conviction from 2005. Rodriguez
was in the car with Jimenez during the events underlying that
15
conviction. Before trial, plaintiffs sought to introduce the
conviction to establish Rodriguez’s knowledge about Jimenez’s
“decision making” when she is intoxicated. The trial court
excluded the evidence under Evidence Code sections 1101,
subdivision (a), and 352. At trial, plaintiffs’ counsel asked
Rodriguez about that conviction. Jimenez—but not Rodriguez—
now contends that plaintiffs’ counsel deliberately tried to inflame
the jury’s passions by asking Rodriguez about the excluded
evidence.
We do not agree. At trial, plaintiffs’ counsel asked
Rodriguez if she had ever been a passenger in a car driven by
Jimenez while Jimenez was intoxicated. Rodriguez said she had
not. When plaintiff’s counsel then asked, “Not even in 2005?”
Defense counsel objected, citing the in limine ruling, and the trial
court sustained the objection. Plaintiffs’ counsel then moved to
impeach and asked the question again. Rodriguez now answered,
“Yes, now I remember.” She also answered yes, that Jimenez had
been convicted of a DUI based on the incident.7 Defense counsel
did not object to these questions.
The motion in limine did not preclude this evidence. Once
Rodriguez denied ever having driven with an intoxicated
Jimenez, the conviction no longer was the issue; Rodriguez’s
credibility was the issue. Jimenez’s conviction and that
Rodriguez was with her during the events underlying the
conviction directly spoke to that issue. Moreover, defense counsel
did not object to the follow-up questions, which elicited that
Rodriguez knew about Jiminez’s prior DUI conviction. We
7
Plaintiffs’ counsel referenced the DUI in closing
arguments.
16
therefore do not agree that plaintiffs’ counsel blatantly
disregarded the trial court’s evidentiary rulings to inflame the
passions of the jury.
We also fail to see how this limited impeachment evidence
was inflammatory. Jimenez had conceded liability for Claudia’s
wrongful death, and the jury knew that Jimenez was serving a
substantial sentence in prison for second degree murder. That
Jimenez had a prior DUI was not inflammatory vis á vis this
other evidence.
D. Punishment
Rodriguez next argues that plaintiffs improperly engaged
the passions of the jury by setting a theme of punishment in
opening statement and in closing argument. In his opening
statement, counsel explained that Rodriguez negligently let
Jimenez drive Rodriguez’s car, knowing that Jimenez was drunk.
However, Rodriguez “wants to wash her hands of the death of
these people.”8 Counsel continued that Rodriguez denied
responsibility for giving her car to Jimenez but Rodriguez
nonetheless bore responsibility for Claudia’s death and “cannot
wash her hands.”
Counsel repeated that refrain in his closing statement.
After going through the special verdict questions, counsel argued
that Rodriguez played a role in Claudia’s death and “can’t wash
her hands of it” and “needs to know that what she did was
wrong.” Counsel immediately then discussed the consequences of
Rodriguez’s behavior, i.e., how much money would reasonably
8 At this point, defense counsel objected and the trial court
told plaintiffs’ counsel to “stick to facts.”
17
compensate plaintiffs for the loss of their mother. In concluding,
counsel likened Claudia to a valuable, one-of-a-kind piece of art.
What defendants took “from this family is really, really, really
valuable. And our community has said so, and said so loudly and
said so clearly so she could hear it loud and clearly, too, so she
won’t be walking around saying, ‘I did nothing wrong.’ ”
Viewing counsel’s statements in the context of his whole
argument (see People v. Centeno (2014) 60 Cal.4th 659, 667), he
was arguing that Rodriguez bore responsibility for Claudia’s
death, and hence could not “wash her hands” and escape paying
damages. He was not arguing that Rodriguez should be
punished. Indeed, the jury was instructed with CACI No. 3924
not to award damages to punish or to make an example of
defendants. We therefore see no argument, much less a “theme,”
that any defendant had to be punished.
II. Apportionment of damages
In a wrongful death action, “[t]he court shall determine the
respective rights in an award of the persons entitled to assert the
cause of action.” (Code Civ. Proc., § 377.61.) Thus, after a jury
trial, the trial court apportions the award among the plaintiffs.
However, this rule is a procedural, not jurisdictional, one.
(Corder v. Corder, supra, 41 Cal.4th at p. 652.) As such, it can be
waived. (Ibid.) Defendants waived or forfeited any right to have
the trial court apportion the judgment. While reviewing the
proposed special verdict, plaintiffs’ counsel said the jury either
could award damages to each plaintiff or it could award a lump
sum and have the trial court divide damages among them. The
only concern defense counsel then raised was about a proposed
instruction directing jurors to award a single amount for all
plaintiffs and stating that the trial court would divide the
18
amount. Defense counsel agreed to strike that portion of the
instruction so that the jurors could award damages to each
plaintiff individually. The trial court then instructed the jury
that each plaintiff was entitled to separate consideration of his or
her claims. Defense counsel therefore assented to the jury
apportioning damages.
III. The 998 offer and prejudgment interest
A 998 offer is an offer to compromise. If a plaintiff makes a
998 offer to settle a lawsuit that the defendant does not accept,
and the plaintiff then obtains a more favorable judgment, the
defendant must pay various costs, including prejudgment interest
at a rate of 10 percent from the date of the offer. (Civ. Code,
§ 3291.) Here, each plaintiff mailed a 998 offer to Rodriguez and
Jimenez to compromise the action for $1 million ($4 million
total). The same day, plaintiffs mailed 998 offers to the
dismissed defendants who are not parties to this appeal.
Rodriguez and Jimenez, who were represented by the same
counsel below, did not respond to the 998 offers, although at least
one nonappealing defendant did respond. When plaintiffs
obtained a recovery larger than their 998 offers, they asked for
prejudgment interest in their memorandum of costs. Rodriguez
and Jimenez moved to tax the prejudgment interest, claiming
that their counsel never received the 998 offers. The trial court
denied the motion.
Jimenez now contends that prejudgment interest should
not have been awarded for two reasons. First, her defense
counsel never received the 998 offers. Second, they were invalid
as unreasonable.
19
A. Receipt of the 998 offers
Evidence Code section 641 creates a rebuttable
presumption that a letter correctly addressed and properly
mailed has been received in the ordinary course of mail. “The
effect of a presumption affecting the burden of producing
evidence is to require the trier of fact to assume the existence of
the presumed fact unless and until evidence is introduced which
would support a finding of its nonexistence, in which case the
trier of fact shall determine the existence or nonexistence of the
presumed fact from the evidence and without regard to the
presumption. Nothing in this section shall be construed to
prevent the drawing of any inference that may be appropriate.”
(Evid. Code, § 604.) The presumption may be rebutted by the
intended recipient’s denial of receipt. (Bear Creek Master Assn. v.
Edwards (2005) 130 Cal.App.4th 1470, 1486.) In that case, the
trier of fact weighs the denial against the inference of receipt
from proof of mailing and decides whether the letter was
received. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416,
422.) “Although the presumption disappears where . . . it is met
with contradictory evidence, inferences may nevertheless be
drawn from the same circumstances that gave rise to the
presumption in the first place.” (Id. at p. 421.)
Per the proofs of service attached to the 998 offers,
plaintiffs were entitled to the presumption under Evidence Code
section 641. However, Jimenez rebutted that presumption by
submitting evidence she never received the 998 offers.
Defendants submitted declarations describing how defense
counsel’s mailroom forwards settlement offers to the handling
attorney’s assistant with a high priority. Trial counsel’s assistant
denied seeing a 998 offer in the case. Otherwise, she would have
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scanned the offers, emailed them to the insurance adjuster, and
given copies to the handling attorney. She also would have sent a
letter to the carrier advising it of the 998 offers. Defendants’ trial
counsel also denied receiving plaintiffs’ 998 offers. Further, he
denied receiving the fifteen other 998 offers that plaintiffs made
to the nonappealing defendants.
In these respects, this case is like Bonzer v. City of
Huntington Park (1993) 20 Cal.App.4th 1474. In Bonzer, the City
of Huntington Park moved for relief under Code of Civil
Procedure section 473, claiming it had not received notice of a
hearing. The city submitted extensive evidence from, among
others, mailroom staff, a secretary, and the chief of police stating
it had not receive notice of a hearing. Bonzer found that the
presumption under Evidence Code section 641 had been rebutted.
The “only remaining effect of the ‘[p]roof of [s]ervice’ declaration
was to enable the trial court to draw ‘any inference that may be
appropriate.’ ” (Bonzer, at p. 1481.) Up to this point, we agree
with Bonzer.
Where we part ways with Bonzer v. City of Huntington
Park, supra, 20 Cal.App.4th 1474 is in its application of the
standard of review. Bonzer went on to hold that, in light of the
city’s evidence, any inference that notice had been received was
inappropriate, under Evidence Code section 604. To similarly
reach that conclusion here would contravene the standard of
review. Although we review de novo whether the civil costs
statute permits a party to claim an expense as a reimbursable
cost, we otherwise review a trial court’s ruling on a motion to tax
costs for abuse of discretion. (Naser v. Lakeridge Athletic Club
(2014) 227 Cal.App.4th 571, 575–576; Crews v. Willows Unified
School Dist. (2013) 217 Cal.App.4th 1368, 1379.) Under the
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deferential abuse of discretion standard, we may reverse only if
we conclude that the trial court’s decision was so irrational,
arbitrary or capricious that no reasonable person could agree
with it. (Ghadrdan v. Gorabi (2010) 182 Cal.App.4th 416, 421.)
Here, the trial court weighed plaintiffs’ evidence that on
the same day they mailed multiple 998 offers to Rodriguez and
Jimenez and to the nonappealing defendants, against Jimenez’s
evidence that her attorney received none of the offers. The trial
court made an express credibility determination that,
notwithstanding defendant’s evidence, “I am going to find that
you did receive it. I am listening to the testimony here, and you
did receive it.” Such a credibility call is binding on appeal.
(Craig v. Brown & Root, Inc., supra, 84 Cal.App.4th at p. 421.)
Thus, even if we agreed that the evidence was in equipoise, we
would not find the trial court’s conclusion to be arbitrary or
capricious, given its credibility determination and that there was
a substantial basis for its conclusion, i.e., the proofs of service.
B. Reasonableness of the 998 offers
Next, Jimenez contends that the 998 offers were
unreasonable because plaintiffs knew that the policy limit was
$15,000 and that she was otherwise in prison with no assets or
ability to pay. We do not agree that these factors rendered the
998 offers invalid.
Rather, a 998 offer is valid if made in good faith. (Licudine
v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 924.)
Its reasonableness is determined by considering the
circumstances when the offer was made and the information used
to evaluate it. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195
Cal.App.3d 692, 699.) Reasonableness generally is measured by
first determining whether the offer represents a reasonable
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prediction of the amount of money, if any, defendant would have
to pay plaintiff after a trial, discounted by an appropriate factor
for receipt of money by plaintiff before trial, all premised on
information that was known or reasonably should have been
known to the defendant, and if an experienced attorney or judge,
standing in the defendant’s shoes would place the prediction
within a range of reasonably possible results, the prediction is
reasonable. (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th
1103, 1112–1113.) Second, was plaintiff’s information known to
defendant? (Id. at p. 1113.)
As to the first inquiry, the 998 offers of $1 million for each
plaintiff were clearly within the range of reasonably possible
results. Indeed, Jimenez’s cases cited in her opening brief
establish that million dollar judgments for the loss of a parent is
a reasonable prediction. (See, e.g., Soto v. BorgWarner Morse
TEC Inc., supra, 239 Cal.App.4th 165.) Moreover, where, as
here, the offeror obtains a judgment more favorable than its offer,
the judgment constitutes prima facie evidence the offer was
reasonable. (Elrod v. Oregon Cummins Diesel, Inc., supra, 195
Cal.App.3d at p. 700.) As to the second inquiry, Jimenez makes
no argument that there was information about plaintiffs she did
not know that would have been necessary to evaluate the offer.
Rather, Jimenez’s sole basis for arguing the offers were
unreasonable is her inability to pay. However, the
reasonableness of a 998 offer is based on what the victim might
reasonably get at trial. Reasonableness of what a plaintiff’s claim
is worth is not dependent on what the defendant can afford or
what the plaintiff ultimately may be able to collect. Stated
otherwise, a tortfeasor’s financial status does not circumscribe
the reasonableness of an offer. Jimenez’s policy limit of $15,000
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thus does not bear on the reasonableness of the 998 offers. By
such logic, would any 998 offer above a minimal amount to an
uninsured driver be unreasonable?9 Clearly, the answer is no.
DISPOSITION
The judgment and postjudgment order are affirmed.
Respondents are awarded their costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION.
DHANIDINA, J.
We concur:
EDMON, P. J.
HANASONO, J.*
9 Where the record shows that a plaintiff has reason to
believe an insurance company may be liable for a judgment in
excess of its policy limits, that may speak to a plaintiff’s good
faith belief in making a 998 offer in excess of such limits.
(Aguilar v. Gostischef (2013) 220 Cal.App.4th 475.) We have no
such record here and make no comment on whether one could be
made.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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