Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 01CC10590, Randell L. Wilkinson, Judge.
Davis & Heubeck and John C. Heubeck for Plaintiff, Defendant and Appellant Shaoping Corder.
Law Office of Ronald E. Harrington and Ronald E. Harrington for Plaintiff, Defendant and Respondent Lisa R. Corder
IKOLA, J.
Shaoping Corder (Sherry) appeals a judgment that apportioned the proceeds of a settlement made with one of the defendants in a wrongful death action. The court apportioned the proceeds of the settlement 10 percent to Sherry, the decedent’s surviving spouse, and 90 percent to Lisa R. Corder (Lisa), the decedent’s adult daughter. Sherry asserts: (1) the court lacked jurisdiction to apportion the settlement proceeds; (2) the court erred by excluding evidence of the settling tortfeasor’s assessment of the relative damages of the respective heirs at the time it agreed to pay the settlement funds; (3) heirs are prohibited from attempting to increase their share of the settlement by attacking the claims of other heirs; (4) Lisa is estopped from challenging Sherry’s claimed share of the settlement; and (5) the evidence was insufficient to support the apportionment ordered by the court.
Because both appellant and respondent share the same last name, we refer to them by their first names for convenience and to avoid confusion. No disrespect is intended.
In a split decision, we affirmed the judgment. (Corder v. Corder (Sept. 26, 2005, G033608) [nonpub. opn.].) The California Supreme Court granted review, reversed our decision, and remanded the matter for further proceedings in our court “consistent with the views expressed” by the Supreme Court. (Corder v. Corder (2007) 41 Cal.4th 644, 667 (Corder).) The Supreme Court did not address Sherry’s argument that Lisa was estopped from challenging Sherry’s claimed share of the settlement. The Supreme Court did, however, address all of Sherry’s other arguments, but found only one had merit: The evidence was insufficient to support the allocation ordered by the trial court. Accordingly, we now reverse and remand the matter to the trial court for a new apportionment trial.
FACTUAL AND PROCEDURAL BACKGROUND
Sherry met Raymond Corder (Raymond) in August 1999; he proposed marriage to her in December 1999; and they married in September 2000. Eight months later, in May 2001, Raymond was killed in a construction accident.
In a consolidated wrongful death action originally brought separately by Sherry and Lisa, one of the defendants settled with both plaintiffs for an unapportioned lump sum of $1.1 million. On the same day the stipulated settlement was signed, Sherry and Lisa entered into another stipulation regarding the apportionment of their recovery. Their apportionment stipulation provided: “Following the verdict or settlement of the [wrongful death] case, should the Plaintiffs fail to agree on an allocation or apportionment of damages between the heirs, that either Plaintiff shall have the right to a further trial regarding the allocation or apportionment of damages among or between the Plaintiffs. Furthermore, either party may supplement their witness list by identifying witnesses not previously disclosed and that those witnesses may be called as witnesses at the further trial proceeding.”
Following the settlement, plaintiffs went to trial against two remaining defendants, but the jury found neither was negligent and judgment was entered in favor of those defendants. Shortly after the trial, the parties commenced discovery proceedings in preparation for a further trial to apportion the settlement proceeds. In the midst of these discovery proceedings, all conducted under caption of the Orange County wrongful death case, Sherry filed a separate lawsuit in the Los Angeles County Superior Court seeking to “quiet title” to the settlement proceeds. Lisa responded by moving to set a trial date in the Orange County case, contending the Orange County court had jurisdiction to apportion the proceeds, and, in any event, Sherry’s filing of a separate suit in Los Angeles County violated their stipulation. The court ruled it had jurisdiction to apportion the proceeds and set the trial date.
At the apportionment trial, the court honored the parties’ stipulation by hearing evidence not presented at the wrongful death trial. The court also made clear, however, it would consider all of the evidence, including the evidence it had heard in the earlier proceeding. Most of the additional evidence at the apportionment trial was about Lisa’s contention that at the time of Raymond’s death he was contemplating dissolving his marriage to Sherry because he suspected she was engaging in prostitution. Evidence was also presented to show the close relationship between Raymond and Lisa, his daughter. The court’s written statement of decision sets forth a brief summary of the conflicting evidence and explains the court’s resolution of those conflicts. We quote a portion of that statement as a succinct description of the basis for the court’s decision.
“Evidence at the allocation trial demonstrated two conflicting views of the decedent’s relationship to his wife, [Sherry] Corder. Lisa Corder, decedent’s daughter, presented witnesses who testified that the decedent intended to divorce his wife. According to them the decedent felt that his marriage was a mistake because his wife had continued to work as a prostitute despite her promises to stop. Witnesses also testified that Lisa and her father had a very close relationship. Lisa Corder’s argument was that since decedent was on the verge of divorcing his wife, the wife’s share of the proceeds should be reduced drastically from what it would otherwise have been.
“On the other hand, [Sherry] Corder’s witnesses indicated that the marriage was a good one and there was no intent manifested by the defendant to divorce his wife. Thus, the argument goes that because [Sherry] Corder would have been legally entitled to support from the decedent during their marriage, the lion’s share of the proceeds should go to her.
“Having considered the conflicting evidence presented the court finds most persuasive the evidence that the marriage between [Sherry] Corder and decedent was on the verge of ending. While it is true that decedent had not yet filed for divorce or contacted an attorney, the court finds that had the decedent lived the marriage would have lasted a relatively short period of time given decedent’s belief, expressed to several persons, that his wife was working as a prostitute against his wishes. Decedent may not have expressed his state of mind to all of those close to him, but such is life. For reasons that are usually unknown, people often keep secrets from some close friends or relatives and not from others. The court finds unpersuasive the contention that Lisa Corder’s witnesses came into court to commit perjury regarding the prostitution allegations.
“Given the above findings the court makes the following allocation as to the settlement proceeds: Lisa Corder 90%. [Sherry] Corder 10%. In making these findings the court has considered the total loss that each plaintiff suffered from the decedent’s death.”
Judgment was entered accordingly. Sherry’s motions to vacate the judgment and enter a different judgment or for new trial were denied. She appealed the apportionment judgment and the denial of her posttrial motions. Lisa moved for sanctions. We affirmed the judgment in a split decision, but the California Supreme Court reversed and remanded the matter to our court for further proceedings. On remand, we now reverse the judgment and in turn remand the matter to the trial court for a new apportionment trial. We deny Lisa’s request for sanctions.
DISCUSSION
In light of the Supreme Court’s decision in Corder, supra, 41 Cal.4th 644, we need not discuss all of Sherry’s contentions on appeal. All but one of Sherry’s arguments have been resolved by the Supreme Court, and we are bound by its decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The Supreme Court responded to Sherry’s contentions as follows.
(1) The trial court acted within its jurisdiction. (Corder, supra, 41 Cal.4th at p. 657 [“the trial court did not act in contravention of [Code of Civil Procedure] section 377.61 or in excess of jurisdiction when it apportioned the settlement proceeds between [Sherry] and [Lisa]”].)
(2) The trial court did not err when it excluded the settling defendant’s testimony about how it calculated the amount to pay in settlement. (Corder, supra, 41 Cal.4th at pp. 659-660 [“[T]he assessments and intentions of a settling defendant are irrelevant to the merits of the heirs’ competing claims; therefore, they deserve no consideration in a judicial apportionment proceeding”; “the trial court’s decision should not be dependant upon what a settling defendant considered relevant in calculating a compromise sum”; “the trial court was not required to allocate the . . . settlement proceeds based solely on the evidence admitted at the trial against the nonsettling defendants or on the perceived contribution that each heir’s damages claim supposedly made to the settlement amount”].)
(3) Sherry and Lisa are not prohibited from attacking the claims of each other in the apportionment trial. (Corder, supra, 41 Cal.4th at p. 659 [“‘quite obviously, competing interests cannot be adjudicated unless litigants are entitled to challenge their adversary’s position.’”].)
(4) Although Raymond’s declarations of his intent to divorce Sherry were admissible to negate or minimize Sherry’s recovery for loss of society, comfort, and protection, those declarations, standing alone, do not support a finding that Raymond intended to divorce Sherry. (Corder, supra, 41 Cal.4th at p. 666 & fn. 12 [“although declarations of marital unhappiness and a desire to dissolve a marriage may be considered in corroboration of other evidence offered to prove a marriage is on the verge of ending, such declarations, standing alone, are insufficient to support a finding to that effect”; “declarations of a decedent regarding his or her unhappiness in a marriage may suffice to negate or minimize the surviving spouse’s recovery for loss of the decedent’s society, comfort, and protection”].)
The Corder opinion did not directly address Sherry’s contention that Lisa was estopped from challenging Sherry’s claimed share. Accordingly, we include here our analysis of that argument and our reasons for rejecting it. We also explain why we reverse for a new apportionment trial. The parties and the trial court are referred to the Supreme Court’s decision in Corder for a complete analysis of the other issues raised on this appeal.
Lisa Was Not Estopped From Challenging the Amount of Sherry’s Claim to the Settlement Proceeds
We acknowledge there may be circumstances wherein one wrongful death plaintiff is estopped from challenging a coplaintiff’s right to recover. Changaris v. Marvel (1964) 231 Cal.App.2d 308 (Changaris), disapproved on other grounds in Corder, supra, 41 Cal.4th at pages 655-659, revealed one such circumstance. In that case, four adult children of the decedent had acquiesced in the prosecution of the wrongful death action by the decedent’s purported widow, all the while knowing she was neither the wife nor the putative wife of the decedent. The trial court drew the inference that the adult children had relied on the prosecution of the purported widow’s claim to enhance the compromise settlement reached with the tortfeasor. The Court of Appeal concluded it would be “most inequitable to permit [the adult children] to make this belated attack upon the right of [the purported widow] for the purpose of obtaining for themselves money to which they have no claim whatever.” (Changaris, at p. 314.)
Here, Sherry’s right to recover was never questioned. Only the amount of that recovery was at issue. There is no evidence in the record to support a finding that Lisa launched a “belated attack” upon Sherry’s status as a rightful heir, not entitled to share in the recovery. To the contrary, the opposite inference is more easily drawn. On the same date the settlement stipulation with the settling defendant was signed by plaintiffs, Lisa and Sherry, through counsel, entered into their own stipulation agreeing to a further apportionment trial at which the parties would be entitled to call additional witnesses not previously disclosed. The natural inference to be drawn is that instead of relying on either plaintiff’s acquiescence to the amount demanded by the other, the plaintiffs agreed to resolve their dispute in the subsequent apportionment proceeding.
Importantly for purposes of our review, the trial court drew no inference of estoppel, nor was it even requested to make a finding on the issue. Each plaintiff proposed issues to be resolved in the court’s statement of decision. Estoppel was not listed by either party as a principal controverted issue, although Sherry did file an objection when the court failed to address estoppel in its statement of decision. In that objection, Sherry contended Lisa did not tell “any party” about her challenge to Sherry’s claim. But we have found no evidence to support this statement, nor has counsel referred us to any.
Sherry’s insistence that Lisa’s deposition testimony, taken seven months before the settlement, constituted the source of an estoppel is not persuasive. The portion of Lisa’s deposition — rejected by the court after Sherry belatedly offered it after both parties had rested — simply asked Lisa whether she had seen anything in Sherry’s deposition she disagreed with. Lisa answered, “Seemed forthcoming to me.” Sherry belatedly offered a portion of her own deposition into evidence, presumably to show what Lisa should have disagreed with when asked. This segment of Sherry’s deposition recounted how Sherry and Raymond were planning to have children, and he had taken her to a doctor for that purpose one week before his death. Lisa’s failure to take issue with these statements when asked whether there was anything in Sherry’s deposition she disagreed with is better explained by counsel’s failure to ask her specifically about this passage, or by the simple lack of personal knowledge about Sherry’s plans for children, not as a concealment of what she may have known at that time about Raymond’s intent to divorce Sherry. Moreover, this statement does not establish that Lisa’s challenge to the amount of Sherry’s share was not made known at other times in other ways, and the stipulation between the parties to take testimony from additional witnesses during the apportionment trial strongly implies the challenge was known.
Sherry did file a motion in limine seeking a ruling that Lisa was estopped from offering evidence to challenge Sherry’s claim. Sherry relied solely on the snippet of Lisa’s deposition testimony described ante. That motion was properly denied. But the court’s denial of the motion seeking to preclude Lisa from presenting her evidence did not preclude Sherry from offering evidence in support of her estoppel argument. She failed to do so. We presume there was none, except for the plainly insufficient and belated offer of Lisa’s deposition testimony. Sherry was not even asked whether she knew of Lisa’s challenge to her claim before she agreed to the terms of the settlement. Reliance is an essential element of any estoppel, and evidence that Sherry was ignorant of Lisa’s challenge when she settled would have been far more probative than Lisa’s inconsequential deposition testimony. (See generally 11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 177, pp. 858-860.) After the close of evidence, Sherry made a belated request to offer the snippet of Lisa’s deposition. After the court denied Sherry’s request, the word estoppel is not found — not even once — in her closing argument. We take it there was no other evidence to argue. There was no estoppel, either as a matter of law or as a matter of fact.
A New Apportionment Trial is Required
The primary rationale for the court’s apportionment decision was its finding that “had the decedent lived the marriage would have lasted a relatively short period of time,” resulting in Sherry’s lowered expectation of future economic support. The only evidence supporting that finding consisted of testimony by several witnesses that Raymond had confided in them, shortly before his death, that his marriage had been a mistake and that he intended to divorce Sherry. The Supreme Court has now held that Raymond’s declarations, standing alone, must not be considered as evidence of Raymond’s intent to divorce, but may only be considered “in corroboration of other evidence offered to prove [the] marriage is on the verge of ending.” (Corder, supra, 41 Cal.4th at p. 666.) Thus, the finding of an impending divorce cannot stand on the basis of the evidence in the record. The Supreme Court has also made clear, however, that Raymond’s declarations are sufficient “to negate or minimize the surviving spouse’s recovery for loss of the decedent’s society, comfort, and protection.” (Id. at pp. 663, 666, fn. 12.)
“As a general matter, damages for wrongful death ‘“are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society and protection.”’” (Corder, supra, 41 Cal.4th at p. 661.) And the fixed settlement fund must be divided in the same proportion as each heir’s total damages bear to the total damages suffered by the other heir. (Changaris, supra, 231 Cal.App.2d 308, 313, disapproved on other grounds in Corder, at pp. 655-659.) The evaluation of each heir’s total damages depends upon the trier of fact weighing and evaluating the admissible evidence of the loss of each heir’s financial expectations and each heir’s loss of comfort, society and protection. This is a matter properly committed to the sound discretion of the trial court in a new apportionment trial conducted consistently with the rules of law established in Corder, at page 644.
DISPOSITION
The apportionment judgment is reversed. The court shall conduct a new apportionment trial consistent with the views expressed in Corder, supra, 41 Cal.4th 644.
Sherry Corder shall recover her costs on appeal.
Lisa Corder’s motion for sanctions is denied.
WE CONCUR: SILLS, P. J., O’LEARY, J.