Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG04141308
Haerle, Acting P.J.
I. INTRODUCTION
Appellants owned the Carriage House, a waterfront property in Alameda that was all but destroyed by a fire on January 8, 2003. Respondents had operated a restaurant on the bottom floor of the Carriage House known as Larry and Della’s Waterfront Café (the restaurant). A jury rejected appellants’ claim that respondents negligently caused the Carriage House fire. On appeal, appellants contend they are entitled to judgment in their favor as a matter of law or, alternatively, to a new trial. Via a cross-appeal, respondents challenge a post-judgment order precluding them from recovering expert witness fees as part of their costs of suit. We affirm the judgment and post-judgment order.
The original complaint for breach of contract and negligence was filed against Commodore Dining Cruises, Inc., and Ward and Susan Proescher, who leased the bottom floor of the Carriage House from appellants. Respondents were added as Doe defendants. The original defendants were dismissed from the action prior to trial. The breach of contract claim was also dismissed prior to trial, apparently after appellants learned that a formal sub-lease was never executed.
II. STATEMENT OF FACTS
A. The Carriage House Fire
The Carriage House was a three story mixed-use building on Mariner Square Drive in Alameda. An internal staircase connected the first floor restaurant to one of three offices located on the second floor. At the relevant time, another second floor office was occupied by Old Castle Mortgage Company and a third office on that floor was vacant. The third floor of the Carriage House building was an apartment that was used part-time by appellant John Beery. Evidence was presented at trial that several people, including the owners and occupants of the Carriage House, had keys or access to the keys to the building.
On January 8, 2003, respondents and two of their employees, Chris Grogans and Leo Rodriguez, locked up and left the restaurant together at approximately 10:40 p.m. Later that night, at approximately 10:52 p.m., Isabel Anguiano, who worked at a Chevy’s restaurant located next door to the Carriage House, left work and was walking to her car when she noticed lights on and an opened door at the Carriage House building. At approximately 11:03 p.m., local authorities were notified the Carriage House was on fire. The report was made by David Fox, who spotted the fire from his houseboat. Fox and another witness videotaped the fire. The Carriage House fire caused extensive exterior and interior damage.
B. Agency Investigations
Alameda Fire Captain Ken Rankin and Fire Inspector Bill Oyas were assigned to investigate the Carriage House fire. When they began their investigation on the morning of January 9, 2003, the fire was out, save a few hot spots or smoldering areas. Rankin and Oyas concluded that the fire originated in the kitchen of the restaurant, above a kitchen prep table about four feet above the ground near the east wall of the kitchen. They were unable to determine the cause of the fire.
Oyas prepared a report summarizing their investigation which was admitted into evidence at trial. According to that report, faulty electric wiring and gas appliances were eliminated as potential causes of the fire. Because the electrical appliances in the kitchen of the restaurant were “completely incinerated” there was no “conclusive evidence that any of these appliances were the cause of the fire.” The extensive damage to these appliances and to the east wall of the kitchen indicated that “high heat originated in this area” and then spread throughout the building. The Oyas report drew the following conclusion regarding the origin and cause of the fire: “Based on the examination of all available physical evidence, interviews with witnesses, building owner, tenants, and approximate time frames, it’s my opinion of fire that the origin of this fire occurred in the kitchen but the cause is undetermined, but suspicious in nature.”
Captain Rankin and Inspector Oyas testified at trial; both were qualified as experts in the area of fire causation. Oyas reiterated the conclusion in his report that the cause of the fire was undetermined but also testified that he found no evidence during his investigation that the fire was caused by arson. Rankin also testified that the cause of the fire remained undetermined. According to Rankin, to identify arson as the cause, he would need conclusive evidence and the investigation did not uncover conclusive evidence of arson. Rankin also testified that he believed that the probable cause of this fire was accidental. Some time after he completed his investigation, Rankin was shown photographs of a melted plastic trash can that had been found at the fire scene but that he had not seen during his investigation. Rankin testified at trial that “that to me adds up to it being more accidental cause of a possibly discarded smoking material.”
Wayland Gee is a police officer who conducts arson investigations for the City of Alameda. When the fire department determines that the cause and origin of a fire is suspicious, Gee is called in to investigate further. Captain Rankin asked Gee to help investigate the Carriage House fire. Gee concurred with Rankin and Oyas that the fire originated in the northeast corner of the kitchen. Gee testified that he also conferred with several investigators from the County Arson Task Force and with an investigator from the Berkeley Fire Department. Gee testified that the investigators believed the fire was suspicious but that there was no determination of arson. Gee also testified that there was an “indication” that an accelerant was used on the fire but that “it was inconclusive.” No evidence of cans containing accelerant or of any remnants of a detonation device were recovered from the scene. Gee also testified that there was no evidence to suggest that this was an “accidental fire.”
Gee testified that, during the course of his investigation, he determined that respondents and their employees left the restaurant at approximately 10:40 p.m. on the night of the fire. Gee also confirmed that he interviewed four employees of the Chevy’s restaurant, located across the street from the Carriage House, all of whom left work between 10:40 and 11:02 p.m., as confirmed by Chevy’s surveillance video. One employee, who left Chevy’s at 10:52 p.m., reported that she saw lights on and an open door at the Carriage House restaurant. Another employee who left Chevy’s four minutes later, at 10:56 p.m., reported that she did not see the lights on or an open door and did not smell smoke, see fire or notice anything unusual at the Carriage House. The first observation of smoke was made by another witness at approximately 11:02 p.m. Officer Gee acknowledged the time table established by this evidence was suspicious of possible arson.
Officer Gee formally suspended his investigation of the Carriage House fire on July 10, 2003. Gee acknowledged at trial that an arson investigation is concluded when arson is eliminated as a possibility and that the investigation is suspended when there are facts supporting a finding of arson, but there is not enough evidence to make a conclusive finding.
C. Company Investigations
In their appellate brief, appellants discuss and rely on a report prepared by Donald Alexander of ADHOC Fire Investigation Services who investigated the Carriage House fire at the request of an insurance adjuster. The record does not reflect that this report was admitted into evidence at trial. We note, however, that the following portion of the Alexander report was read to the jury while appellants’ expert was on the witness stand: “It is my professional opinion based on my examination of the fire scene, the evaluation of the available physical evidence, and witness statements, that this fire incident originated in the area of the work table in the kitchen. Without finding any accidental cause for the fire and with the lack of a source of ignition in the area of origin, I cannot rule out the possibility that this fire was intentionally set.”
Erika Lockhart, an investigator employed by Fire Cause Analysis, investigated the Carriage House fire on behalf of Farmers Insurance Company and prepared a written report dated March 25, 2003, which was admitted into evidence at trial. The report concludes that the cause of the fire was “the actions of an unknown person,” that the “ignition source was an open flame, the material first ignited was an ignitable liquid such as charcoal lighter fluid or paint thinner poured for the purpose of starting and spreading the fire throughout the building.”
According to her report, Lockhart conducted a physical examination of the fire scene on January 10, 2003, and several times after that. Based on her investigation, Lockhart identified “at least” two areas of fire origin, the wood flooring in the wait station area to the north of the kitchen and the north end of the vacant east office on the second floor of the building. Lockhart did not find evidence of an ignition source in the areas of origin and opined the most probable source was an open flame applied to vapors of poured ignitable liquids.
D. Appellants’ Expert
James McMullen testified as appellants’ expert witness in the areas of cause and origin of fires and arson investigation. McMullen’s 40 years experience in the fire service industry includes work as a fire fighter, fire chief, and chief of the State Fire Marshal’s office. At the time of trial, McMullen had retired from active service, operated a business that conducted fire inspections and other fire protection services and worked as a “forensic expert.”
McMullen began his work on this case after the Carriage House had been demolished. He testified however, that the fire was “fairly well-documented” and that he reviewed extensive reports, some physical evidence, photographs and videos. Included in the physical evidence recovered after the fire, McMullen discovered the remains of a large trash container. McMullen testified that the “blob” of material had not been properly identified on the evidence log as the remains of a trash can. McMullen did not believe that anyone before him had recognized the trash can for what it was. McMullen and an associate sawed open the material and recovered the remains of trash including the residual of a trash can liner, an egg carton and at least two beer bottles. It was these contents which led McMullen to conclude that the trash can was likely located in the kitchen as opposed to some other area of the restaurant. Based on this evidence, the reports and the other evidence he reviewed, McMullen concluded that the fire originated in the trash container and that the trash can was sitting on a work shelf on the east wall of the kitchen.
McMullen testified that he did not find any evidence that the fire was caused by arson and that photographs depicting burn and charring patterns negated arson as a cause. Furthermore, McMullen testified, the investigation reports relating to this fire consistently stated that the fire was not caused by electrical or gas problems. Ultimately, McMullen concluded that “[t]he probable cause in my opinion is a fire occurring in the kitchen from human negligence.”
E. Respondents’ Evidence Regarding Cigarettes and the Kitchen Trash Can
Respondents presented evidence that both patrons and employees were prohibited from smoking cigarettes at their restaurant. Employees who smoked, including Chris Grogans, were required to smoke outside. Della Murphy testified that, during the two and one half years she operated the restaurant, she never saw or heard about an employee smoking inside the restaurant. When patrons tried to smoke, they were told to go outside on the patio. Grogans testified at trial that he never brought a lit cigarette into the restaurant or discarded a cigarette he had finished smoking into the kitchen trash can. Aaronette King worked as a bartender and a server at the restaurant for more than a year prior to the fire. King testified that she worked with Grogans and had never seen him smoking inside the restaurant, and that he smoked outside in the designated smoking area. King also testified that she never saw a patron bring a cigarette into the restaurant.
Aaronette King also testified that it was part of her job to empty the smaller trash cans in the restaurant into the larger cans that were then emptied by one of the male employees. King was familiar with the kitchen garbage cans and routinely went into the kitchen after the trash had been emptied for the night. King testified that she never saw a garbage can on top of a preparation table in the kitchen.
Della Murphy testified that, as part of respondents’ clean-up routine prior to closing, kitchen garbage cans were emptied and stored in an area between the kitchen and the storage room. A trash can was never placed or stored on the stainless steel prep table on the east wall of the kitchen. That counter was used to clean and prepare vegetables and Murphy would not tolerate the placement of a trash can there and she never saw a trash can on that counter. Murphy also testified that, on the evening of the fire, she checked the kitchen before she left and the trash can was not sitting on the counter.
F. Respondents’ Expert
Erika Lockhart, who had investigated the fire on behalf of Farmers Insurance, testified at trial as respondents’ expert witness in the areas of fire cause and origin. Lockhart is a certified fire investigator. At the time of trial, Lockhart worked as a firefighter for the San Francisco Fire Department and was also a fire investigator for Fire Cause Analysis. Lockhart testified that she commenced her physical investigation of the Carriage House fire on January 10, 2003, and that she spent a total of 11 days working at the scene itself.
Lockhart testified that she found an indication the fire may have been incendiary during her first inspection of the scene because the fire patterns suggested there may have been multiple unconnected fires on different floors. Lockhart conducted or arranged for several different procedures during the scene investigation. For example, she arranged for an “accelerant dog” to go to the scene on January 17. Axe, the dog, “alerted on” seven points in the building which indicated that he had detected one of 13 ignitable liquid odors that he was trained to detect. Lockhart took debris samples from the alert areas and three samples tested positive for medium petroleum distillates, which are common in products like lighter fluid and paint thinner. Lockhart also initiated a “dig out” of the debris at various places in the building after which she did a “wash down” of the floor so she could better examine burn patterns. A second dog search was conducted on January 27 after the debris had been removed from the building. The second search led to positive findings of medium petroleum distillates in the restaurant dining room and the vacant office on the second floor, both places where you would not expect to find stored ignitable fluids. In early February 2003, Lockhart also performed a fire modeling analysis which is a test used to assess the speed of a fire and can be an indicator that an accelerant was used because accelerated fires spread faster than fires started with normal materials. Lockhart testified that the results of her fire modeling analysis of the Carriage House fire supported the conclusion that an accelerant was used in the fire.
Lockhart also arranged for examinations of the electrical systems and electrical appliances which allowed her to rule out these factors as potential causes of the fire.
During her trial testimony, Lockhart also discussed circumstantial evidence consistent with a determination that the fire was caused by arson. For example, there was evidence that the door to the Carriage House restaurant was seen open after the Murphys had locked up and left for the night. Seven minutes after that sighting, smoke could be seen through a first floor window and two minutes after that, the fire was visible from outside. Lockhart also learned that the burglar alarm on the second floor of the building did not go off when the fire occurred, which meant that it either malfunctioned or had not been activated. The alarm had been tested on the morning of January 8 and performed correctly. Caesar Bonifacio, who worked at the mortgage company, remembered setting the alarm before he left the office on the day of the fire. However Bonifacio also reported that he believed other people had the alarm code.
During her trial testimony, Lockhart identified five potential areas of origin of the fire: the east wall area of the kitchen, the second floor vacant office, the interior stairway, the restaurant dining room, and the restaurant wait station. The results of Lockhart’s investigation led her to eliminate three of these areas, the kitchen, the dining room and the second floor office. Lockhart testified that she believed the stairway was a possible but not sole area of origin and that the wait station was definitely an area of origin.
Lockhart acknowledged that her March 2003 report identified the second floor office as a likely area of origin. However, after her report was submitted, Lockhart reviewed all of the evidence again and found grounds for eliminating this area as an area of origin.
Lockhart testified that the conclusion in her March 2003 report that the Carriage House fire was incendiary was supported by ample evidence notwithstanding the fact that physical evidence of an ignition source was never found. She pointed out, among other things, that there was no dispute that potential natural causes (storms, earthquakes) were not applicable. Further, she believed she had eliminated all possible accidental causes, including electrical systems, appliances, forgotten candles, and carelessly discarded smoking materials. Lockhart eliminated the possibility the fire was caused by a carelessly discarded smoking material because the combustible material located in the wait station and stairwell were wood flooring and carpeting which are material that cannot be ignited by cigarettes. Lockhart also found physical evidence of arson including the well-defined area of origin with traceable burn patterns to other areas of the building that were burned, the positive tests for medium petroleum distillates on two different floors in areas you would not expect to find them, and the burn patterns consistent with the pouring of accelerants in the wait station.
Lockhart testified that the kitchen trash can was not an area of origin of the fire. She noted, among other things, that there was heat discoloration on the outside of the can but not on the inside and that there was no fire debris found inside the can after it was cut open, but that there was other unburned trash in the can. Nor was there any evidence of a cigarette or other ignition material inside the can.
Lockhart also testified that appellants’ theory that the fire had started in the trash can was premised on the faulty assumption that the can had been sitting on top of the stainless steel counter, adjacent to and level with the area on the east kitchen wall that had been identified by other investigators as the area of origin of the fire. According to Lockhart, had the plastic can been on the stainless steel counter, the bottom of the can would have melted. Lockhart also testified that she performed a fire modeling analysis using cigarettes deposited into comparable plastic trash cans and determined that the fire patterns were not at all consistent with what happened at the Carriage House.
Based on all the work she performed in connection with this case, Lockhart testified that, in her opinion, the Carriage House fire was an incendiary fire and that it was not caused by human negligence.
G. Procedural History
Jury trial commenced February 22, 2006, before the Honorable Kenneth Burr. Appellants’ theory was that respondents or their employee negligently started the Carriage House fire in the kitchen of the restaurant, most likely by discarding a cigarette into the kitchen trash can. Respondents maintained that neither they nor their employees caused the fire and that its most likely cause was arson.
1. The res ipsa loquitur instruction
Appellants requested that the jury be instructed regarding the doctrine of res ipsa loquitur.
“Res ipsa loquitur is a doctrine affecting the burden of producing evidence applicable to certain kinds of accidents that are so likely to have been caused by a defendant’s negligence that, in the Latin equivalent, ‘“the thing speaks for itself.”’ [Citation.] If applicable, the doctrine of res ipsa loquitur establishes a presumption of negligence requiring the defendant to come forward with evidence to disprove it. [Citations.] [¶] The presumption that an accident was caused by the defendant’s lack of care arises only when the evidence satisfies three conditions: (1) The accident must be of a kind that ordinarily does not occur unless someone is negligent; (2) the accident must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the accident must not have been due to any voluntary action or contributory fault of the plaintiff. [Citation.] (Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1389; see also Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826.)
Over respondents’ objection, the trial court ruled that the jury would be instructed on the elements of the res ipsa doctrine. The court reasoned that it was not required to make a finding as to whether the doctrine applied because that was an issue for the jury to decide. Instead it needed only to find that there was sufficient evidence from which a jury could find that the elements of the doctrine were satisfied.
The jury was given the following res ipsa loquitur instruction, based on Instruction number 417 of the Judicial Council of California Civil Jury Instructions (CACI):
“In this case, Carriage House and John Beery may prove that Larry Murphy, Della Murphy or their employees’ negligence caused them harm if they prove all of the following: [¶] 1. That Carriage House and John Beery’s harm ordinarily would not have happened unless someone was negligent; [¶] 2. That the harm was caused by something that only Larry or Della Murphy or their employees controlled; and [¶] 3. That Carriage House and John Berry’s voluntary actions did not cause or contribute to the events that harmed them. [¶] If you decide that Carriage House and John Berry did not prove one or more of these three things, then you must decide whether Larry Murphy, Della Murphy or their employees [were] negligent in light of the other instructions I have read. [¶] If you decide that Carriage House and John Beery proved all of these things, you may, but are not required to, find that Larry or Della Murphy or their employees were negligent or that Larry Murphy’s negligence or Della Murphy’s negligence or Larry and Della Muprhy’s employees’ negligence was a substantial factor in causing Carriage House’s harm or John Beery’s harm, or both. [¶] You must carefully consider the evidence presented by both Carriage House and John Beery and Larry and Della Murphy before you make your decision. You should not decide in favor of Carriage House and John Beery unless you believe, after weighing all of the evidence, that it is more probable than not that Larry or Della Murphy or their employees were negligent and that Larry and Della Murphy or their employees’ negligence was a substantial factor in causing Carriage House and John Beery’s harm.”
2. The special verdict and post-verdict rulings
The jury was asked to complete a special verdict form based on CACI No. 402. The first question on the special verdict form was: “Was Larry Murphy, Della Murphy or one of their employees (in the course and scope of their employment) negligent?” On April 11, 2006, the jury answered “no” to the first question on the special verdict and then returned its verdict in favor of respondents. Judgment was entered that same day.
Appellants filed motions for judgment notwithstanding the verdict and for a new trial on April 26, 2006. They argued, among other things, that the evidence warranted a verdict in their favor. They also sought a new trial on the ground of juror misconduct.
On June 1, 2006, the trial court issued its order denying both of appellants’ motions. The June 1, 2006, order stated, among other things, that there was sufficient evidence to support the jury’s finding that respondents did not commit any negligent conduct and that there was no support for appellants’ claim of juror misconduct. The order also stated that there “was sufficient evidence for a trier of fact to find that the doctrine of res ipsa loquitur did not apply because the fire could have occurred without any negligence on the part of Defendants and could have been caused by an agency or instrumentality that was not in the exclusive control of Defendants.”
After judgment was entered, respondents filed a memorandum of costs seeking to recover $114,404.07 in costs as the prevailing party in this action. Of this total amount, $78,377.03 represented expert witness fees respondents claimed they had paid. In an order granting in part the respondents’ motion to tax costs, the trial court ruled that respondents were not entitled to recover expert fees as part of their costs of suit.
III. DISCUSSION
A. Sufficiency of the Evidence
Appellants contend the trial court erroneously denied their motion for judgment notwithstanding the verdict. “A trial court must render judgment notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted. (Code Civ. Proc., § 629.) A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. [Citation.] [¶] The moving party may appeal from the judgment or from the order denying the motion for judgment notwithstanding the verdict, or both. (Code Civ. Proc., § 904.1, subd. (a)(4) [making such an order appealable].) As in the trial court, the standard of review is whether any substantial evidence--contradicted or uncontradicted--supports the jury’s conclusion. [Citations.]” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)
Appellants separately contend there is insufficient evidence to support a judgment for respondents. We apply the substantial evidence standard of review to test the sufficiency of the evidence to support the judgment. (See, e.g., Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 906.)
Appellants urge that, when conducting our review, we must find affirmative proof that the Carriage House fire was caused by something other than respondents’ negligence. They reason that (1) they produced sufficient evidence at trial to satisfy all of the elements of the res ipsa loquitur doctrine, (2) the burden of proof, therefore, shifted to respondents and (3) respondents failed to carry their burden of affirmatively proving the fire was caused by something other than their own negligence.
Appellants’ reasoning is flawed. When, as here “a defendant’s negligence is one of several possible causes reasonably inferable from the evidence, the choice or rejection of the inference must be left to the jury under conditional res ipsa loquitur instructions.” (Cline v. Lund (1973) 31 Cal.App.3d 755, 764.) In other words, assuming for purposes of argument that there was sufficient evidence to warrant giving the res ipsa instruction, that fact would not establish that the jury necessarily found that the elements of the doctrine were satisfied. In any event, appellants’ argument is irrelevant. Regardless who carried the burden at trial, the jury made an express finding that respondents were not negligent. The question on appeal is whether that finding is supported by substantial evidence. Clearly, it is.
Under the circumstances, it is not necessary for us to address respondents’ contention that the instruction should not have been given at all.
The jury’s finding that respondents were not negligent is supported by substantial evidence that the Carriage House fire was arson. As discussed in our factual statement, Ericka Lockhart spent several days inspecting the scene and found evidence that the fire was intentionally set. She described that evidence in great detail and her expertise as a fire investigator was not disputed. Appellants characterize Lockhart’s arson theory as pure speculation. But their failure to acknowledge and address the evidence upon which Lockhart relied, evidence we have already summarized above, simply does not make that evidence disappear.
We also find substantial other evidence, in addition to Lockhart’s testimony, that the fire was caused by intentional as opposed to negligent acts. After conducting their investigation, Captain Rankin and Inspector Oyas concluded that the cause of the fire was undetermined but suspicious. Officer Gee acknowledged there was an indication that accelerants were used at the fire and that there were other circumstances that were suspicious of arson. As discussed more fully above, those circumstances include the fact that a witness saw the lights on and the door open at the restaurant after respondents and their employees had left for the night and before the first report of smoke or fire.
The verdict is further supported by substantial evidence refuting appellants’ theory that the fire was caused by a cigarette carelessly discarded into a kitchen trash can in the restaurant kitchen. Lockhart discussed the evidence supporting her conclusions that the fire did not start in the kitchen trash can and that it was not caused by human negligence. In addition, the testimony of Della Murphy, Chris Grogans and Aaronette King, summarized above, constitutes substantial evidence that nobody discarded a lighted cigarette into a restaurant trash can and that there was no trash can on the stainless steel counter on the east wall of the restaurant kitchen when the fire started.
We affirm the trial court’s June 1, 2006, order denying the motion for judgment notwithstanding the verdict and also find that there is sufficient evidence to support the judgment.
B. The Special Verdict Form
Appellants contend that the trial court committed reversible error by approving the special verdict form that was used in this case and rejecting their proposed special verdict form which would have required the jury to make express factual findings as to each of the three prongs of the res ipsa loquitur doctrine. Appellants contend their proposed special verdict form was the “correct” form to use under these circumstances and the court’s failure to use it entitles them to a new trial.
The record reflects that appellants waived this claim of error by approving the special verdict form that was given to the jury in this case. Although the parties initially disagreed about what verdict form to use, they subsequently presented the court with a form that both parties approved. The approved form, which was based on CACI No. 402, was given to the jury. In their reply brief, appellants concede that “[t]he Court record indicates that Plaintiff’s counsel approved the form, however, absent from the record is counsels’ argument against the form and the Judge’s ultimate ruling that the form would be used.” Our review of the record confirms, however, that appellants had ample opportunity to place their objection on the record. Having failed to do so, appellants waive this claim of error.
Appellants mistakenly rely on Code of Civil Procedure section 647, which provides that certain matters are “deemed” to be excepted to, including “giving an instruction, refusing to give an instruction, or modifying an instruction requested . . . .” This provision does not apply here, where appellants not only failed to object to the verdict form, they expressly approved it.
In any case, we have reviewed the special verdict form that appellants initially proposed and find absolutely no authority for utilizing such a form in this or any other case. Appellants state: “The Verdict Form requested by Plaintiffs was the approved BAJI 16.00 Form of Special Verdict – Negligence (‘BAJI 16.00’).” Appellants further contend that BAJI No. 16.00 “is for use in cases of this nature that require the jury to make factual determinations as to each of the three prongs of the Res Ipsa Loquitur doctrine . . . .”
California Jury Instructions, Civil, also know as BAJI, contains a set of special verdict forms. BAJI No. 16.00 is a form of special verdict designed for use in negligence cases. However, contrary to appellants’ express representations to this court, BAJI No. 16.00 does not require the jury to answer questions regarding the elements of the res ipsa loquitur doctrine. This approved verdict form does not make any reference to that doctrine at all. Indeed, the form appears to us to be substantially similar to the CACI special verdict form that was given in this case.
BAJI No. 16.00 is appellants’ sole authority for their contention that the trial court committed reversible error by rejecting their proposed special verdict form. Not only do they misrepresent the content of BAJI No. 16.00, they overlook the commentary that accompanies it. The “Use Note” accompanying this form of special verdict refers the reader to Appendix D, which contains “a detailed dissertation on when to use a special verdict and the issues which should be covered by a special verdict.” (See Use Note to BAJI No. 16.00 (Spring 2008 ed.) p. 1130.) Appendix D states that “[t]he doctrine of res ipsa loquitur is a rule of evidence only and requires no special questions.” (BAJI Appendix D (Spring 2008 ed.) p. 1310.)
Suffice it to say, appellants have failed to support their claim of error with respect to the special verdict form that was used in this case.
C. Jury Misconduct
Appellants contend the jury committed misconduct by failing to follow the law because it did not apply the jury instruction regarding the res ipsa loquitur doctrine.
1. Background
In their motion for new trial, appellants argued that the jury committed misconduct by failing to follow the law pertaining to the doctrine of res ipsa loquitur. The only evidence offered in support of their misconduct claim was a declaration by Coy Justice, the foreman of the jury.
In his declaration, Justice stated: “4. Following my election as foreman of the jury, we sat around the table and discussed the initial impressions of each of the jurors. Thereafter we had lunch. [¶] 5. Next we asked for a copy of the jury instructions as neither the jury instructions nor the exhibits were available to us in the jurors’ room and we wanted the printed definition of negligence from the jury instructions. [¶] 6. At approximately 1:40 p.m. the jury instructions were provided to us. We read the negligence instruction and thereafter concluded that the Plaintiffs’ did not establish negligence. We did not consider the Res Ipsa Loquitur instruction. [¶] 7. We also did not ask for any of the exhibits to be brought into the juror room. [¶] 8. We did not conclude the fire was caused by arson. [¶] 9. We based our findings of negligence on the fact that we did not know how the fire started.”
The trial court ruled that Justice’s testimony that the jury (1) did not consider the res ipsa loquitur doctrine, (2) did not conclude the fire was caused by arson, and (3) based its finding on the fact that it could not determine how the fire started was inadmissible. The court reasoned that “[a]t most this testimony suggests deliberative error in the jury’s collective mental processes, confusion, misunderstanding, or misinterpretation of the law, and is not admissible. Such evidence is barred by Evidence Code § 1150(a).” The court found that the remainder of the Justice declaration was irrelevant. After striking the declaration from the record, the court ruled there was no evidence to support the claim of juror misconduct.
2. Analysis
Appellants contend the trial court abused its discretion by excluding the Justice declaration. (See Sierra View Local Health Care Dist. v. Sierra View Medical Plaza Associates (2005) 126 Cal.App.4th 478, 484 [applying abuse of discretion review to rulings on requests for new trial because of juror misconduct].) We disagree.
The court’s ruling was consistent with Evidence Code section 1150, subdivision (a) which states: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”
Evidence Code section 1150 (section 1150) “‘distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved. . . . .”’ [Citation.] ‘“This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent. The only improper influences that may be proved under . . . section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.”’” (People v. Danks (2004) 32 Cal.4th 269, 302.)
Appellants contend that Justice’s statement that the jury did not consider the res ipsa instruction is an objectively verifiable statement of fact. To the extent that the word “consider” means to physically examine, Justice’s statement could be construed as being subject to corroboration. Indeed, when read in the context of the paragraph in which it appeared, Justice could well have been saying that, after the jury was given the set of written instructions, it did not physically look at the res ipsa instruction. However, if we construe the testimony in this way, it is simply irrelevant. Evidence that, after the jury was orally instructed regarding the res ipsa loquitur doctrine, it did not take a second physical look at the written res ipsa instruction would not be evidence that the jury failed to follow the law or that it committed any other type of misconduct.
The only way that the statement that the jury did not “consider” the res ipsa loquitur instruction could arguably be relevant is if it is construed as a description of the jurors’ subjective thought processes, the reasoning by which they individually or collectively reached their decision. However, as the trial court found, to the extent the declaration “suggests deliberative error in the jury’s collective mental processes, confusion, misunderstanding, or misinterpretation of the law” it is inadmissible pursuant to section 1150.
In their reply brief, appellants also argue that Justice’s statements that the jury (1) did not find that the fire was caused by arson and (2) based its decision on the fact that it did not know how the fire started, are “based on overt acts objectively verifiable, subject to corroboration and observed by Mr. Justice during deliberations.” With regard to the first statement, evidence that the jury did not make an express finding that the fire was arson is irrelevant since they were never asked to make such a finding. If construed as a revelation regarding what the jurors believed, this statement is an improper revelation regarding the subjective thought processes of the jury. As for Justice’s assertion that the jury did not know how the fire started, this statement is an absolutely improper commentary regarding the alleged mental state of this jury.
We hold that appellants have failed to show that the trial court abused its discretion by excluding the Justice declaration. Justice’s declaration was properly excluded as either irrelevant or as barred by section 1150.
D. The Cross-Appeal
Respondents contend the trial court erred by precluding them from recovering $77,377.03 in expert witnesses fees as part of their costs of suit pursuant to section 998 of the Code of Civil Procedure (section 998). We review the trial court’s order under the abuse of discretion standard of review. (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 152; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262 (Jones).)
1. Background
Prior to trial, respondents made two offers to settle this action pursuant to section 998 which sets forth a procedure pursuant to which a party may serve an offer in writing on any other party to an action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions as stated at that time.
Respondents’ first section 998 offer was made on December 27, 2004, the same day they filed their answer to appellants’ complaint. Respondents offered to waive all costs and attorneys fees incurred in the litigation in exchange for dismissal of the action. On February 7, 2006, ten days before trial commenced, respondents served a second section 998 offer to compromise. Again, respondents offered to waive costs and attorneys fees in exchange for a dismissal. Appellants did not accept either section 998 offer.
After judgment was entered, respondents sought to recover their costs as the prevailing party. They included expert witness fees as part of their recoverable costs pursuant to section 998, subdivision (c)(1) which states: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.” (Emphasis added.)
Appellants filed an objection to the cost bill and, specifically, to the request to recover expert fees. The matter was heard by the trial court on June 8, 2006. At the hearing, the trial court found that neither of respondents’ two section 998 offers were reasonable, good faith settlement offers. The court noted, among other things, that respondents faced significant exposure as there was evidence of damages in excess of $1,000,000. The court also found that a fair evaluation of the evidence, without the benefit of hindsight, did not compel a defense verdict. It further observed that a different verdict may have been issued if the case had been tried a different way.
With respect to the second section 998 offer, the court also found that the respondents did not have a reasonable expectation that this offer would be accepted. The court recognized that the offer included a waiver of costs and that, by that time, both sides had incurred significant costs. However, it appeared to the court that this offer to waive costs was intended only to highlight the expense of the litigation to both sides and to “further heighten the competitive juices” of the parties prior to trial.
In its order denying respondents’ request for payment of its expert witness fees, the court stated: “The Court finds that the first 998 offer to compromise, made at the time of Defendants’ answer in December 2004, was not made in good faith. Defendants had insufficient information from which to conclude that an offer of $0.00 with a waiver of costs was reasonable. In addition, the second offer to compromise extinguished the earlier 998 offer to compromise. Wilson v. Wal-Mart Stores, Inc. (1999) 72 Cal.App.4th 382, 390-391. The Court also finds that the second offer to compromise also was not made in good faith. The damages sought in this case were approximately $2,000,000. Under the circumstances present in this case, Plaintiffs had a reasonable probability of prevailing against Defendants Larry and Della Murphy, such that the offer of settlement for $0.00 plus waiver of costs and attorney’s fees was a token or nominal offer with no reasonable prospect of acceptance.”
2. Analysis
“The purpose of section 998 is to encourage the settlement of litigation without trial. [Citation.] To effectuate the purpose of the statute, a section 998 offer must be made in good faith to be valid. [Citation.] Good faith requires that the pretrial offer of settlement be ‘realistically reasonable under the circumstances of the particular case. Normally, therefore, a token or nominal offer will not satisfy this good faith requirement . . . .’ [Citation.] The offer ‘must carry with it some reasonable prospect of acceptance. [Citation.]’ [Citation.] One having no expectation that his or her offer will be accepted will not be allowed to benefit from a no-risk offer made for the sole purpose of later recovering large expert witness fees. [Citation.]” (Jones, supra, 63 Cal.App.4th at pp. 1262-1263.)
Respondents contend the trial court abused its discretion by concluding that their two section 998 offers were not good faith offers. Their argument boils down to two points: (1) that offering to pay zero dollars was reasonable because appellants’ case was so weak, and (2) that the offers had significant monetary value because of the offer to waive substantial costs.
We will not address respondents’ first section 998 offer at all because, as the trial court found, that offer was extinguished by respondents’ second offer. (Wilson v. Wal-Mart Stores, Inc., supra, 72 Cal.App.4th at pp. 390-392; Palmer v. Schindler Elevator Corp. (2003) 108 Cal.App.4th 154, 157.)
Respondents have failed to establish that the trial court abused its discretion by finding that their second section 998 offer was not a reasonable, good faith offer. Their first argument, that the case against them was weak, is a subjective opinion the trial court did not and was not required to share. Although we have focused our discussion thus far on evidence supporting the judgment, the record before us also contains evidence from which the jury could have reached a different verdict. The trial court’s objective assessment of the evidence in this case provides no basis for overturning its discretionary decision.
Respondents complain that “a low offer in a case with a high demand is not automatically a ‘bad faith’ offer.” (Citing Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704.) We agree. The amount of the settlement offer is “one of the many factors to be taken into consideration by the trial judge in making his decision.” (Id. at p. 710.) Therefore, the trial court did not abuse its discretion in this case by taking into account the fact that, on the eve of trial, respondents offered to pay no money (except for costs and attorney fees) to settle a claim for damages in excess of $1,000,000.
Respondents’ second point, that their offer to waive costs had monetary value, is accurate but not dispositive of anything. Indeed, the trial court expressly considered that both parties had incurred significant costs, including expert fees, by the time the second offer was made. Nevertheless, the court concluded that the offer of zero dollars with a waiver of costs, made on the eve of trial, was part of respondents’ trial strategy and was made without a reasonable expectation that it would be accepted.
Contrary to respondents’ argument on appeal, this court’s decision in Jones, supra, 63 Cal.App.4th 1258 does not support their contention that the trial court abused its discretion in this case.
In Jones, the trial court awarded a defendant who prevailed at trial $5,440 in expert witness fees after finding that his section 998 offer to have judgment entered against him in exchange for a waiver of costs was a reasonable, good faith offer. (Jones, supra, 63 Cal.App.4th at pp. 1261-1262.) This court affirmed. We acknowledged that the defendant’s offer to waive substantial costs had monetary value and also rejected the contention that the “absence of a net monetary sum as part of a pretrial statutory settlement offer constitutes a per se violation of the good faith requirement.” (Id. at p. 1264.) Ultimately, we affirmed the trial court’s ruling because the appellant failed to establish an abuse of discretion. As we explained, “[c]onsidering that the determination of the good faith and reasonableness of a section 998 compromise offer is left to the sound discretion of the trial court [citation], appellants’ failure to designate the reporter’s transcript of the trial as part of the record on appeal leaves this court with no evidence upon which to base a finding that the trial court abused its discretion in determining that respondents’ section 998 offer was reasonable.” (Id. at p. 1264.)
As we did in Jones, we again affirm a trial court’s decision whether to award expert fees as a discretionary cost item. This time, the trial court exercised that discretion to deny fees. Further, in contrast to Jones, the appellate record in this case affirmatively supports the trial court’s discretionary ruling. Respondents cite no evidence from this record which suggests that the trial court based its decision solely on the fact that no money was offered or that it failed to consider the value of the offer to waive costs. To the contrary, the record confirms that the court conducted a reasoned analysis and, after considering all of the relevant circumstances, concluded that respondents’ section 998 offer was not a reasonable or good faith offer.
IV. DISPOSITION
The judgment and the post-judgment order denying the motion for judgment notwithstanding the verdict are affirmed. The post-judgment order granting in part the motion to tax costs is also affirmed. The parties are to bear their own costs on appeal.
We concur: Lambden, J., Richman, J.