Opinion
2d Civil No. B221595
08-31-2011
CHELA ST. JOHN-PARISIAN, Plaintiff and Appellant, v. FOSTER POULTRY FARMS, INC. et al., Defendants and Appellants.
Law Offices of Wayne McClean, Wayne McClean; Law Offices of Jeffrey S. Young, Jeffrey S. Young; Evan D. Marshall for Plaintiff and Appellant Chela St. John-Parisian. Horvitz & Levy, Barry R. Levy, Wesley T. Shih; Soltman Levitt, Flaherty & Wattles, Garth Drozin for Defendants and Appellants Foster Poultry Farms, Inc. et al.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1245594)
(Santa Barbara County)
Foster Poultry Farms, Inc. and Jesus Sepulveda (appellants) appeal the judgment in favor of Chela St. John-Parisian (Parisian) and her award of damages. Appellants claim instructional and evidentiary error, challenge the damages award, and assert that Parisian's offers to compromise were invalid.
Parisian separately appeals the trial court's post-judgment orders denying her motion for cost of proof sanctions pursuant to Code of Civil Procedure section 2033.420 and striking items from Parisian's Memorandum of Costs. We affirm the judgment and the trial court's post-judgment orders.
FACTS
Overview
Parisian was struck by the semi-trailer of a tractor-trailer truck and sustained serious injuries. The truck left the scene. The majority of the trial involved the presentation of proof that the truck was owned and operated by Foster Farms, and that Jesus Sepulveda was the driver who struck Parisian.
Foster Farms initially denied its involvement and claimed it did not own the truck. It argued that Parisian had described the trailer as white, but it had only blue trailers in service at the time of the accident. Numerous defense witnesses testified that Foster Farms ceased using white trailers on the road in 2004, using only trailers with a multicolored logo on a predominately blue background for delivery since that time.
During the liability phase of the trial, the parties stipulated to respondeat superior. Foster Farms acknowledged that Sepulveda was its employee; he drove its truck on the day of the collision; and Foster Farms bore liability for Sepulveda's actions while acting within the scope of his employment. The jury found that Sepulveda was negligent and his negligence was a substantial factor in causing the collision involving Parisian's vehicle. Judgment was entered in favor of Parisian and against appellants jointly and severally in the amount of $4,190,002.
Parisian's Testimony
Parisian was employed by the Bacara Resort and Spa in Santa Barbara. On April 24, 2006 she left her house about 11:25 a.m. to drive to work. Parisian was driving a silver 1999 Ford Taurus. She entered the 101 freeway northbound from the Las Positas onramp and moved into the number two lane. Parisian was traveling about 60 miles per hour. After driving for approximately two miles, she passed the Turnpike Road overpass. She began passing a Foster Farms tractor-trailer that was in the number three lane, to her right.
When the front of Parisian's car reached the middle part of the trailer, she saw the "front wheels of the truck portion" move into her lane. She was afraid she was going to be hit. She looked up through her windshield at the trailer and recognized the Foster Farms logo which featured a white chicken. Parisian attempted to move left to avoid a collision, but saw a car "solidly" next to her in the number one lane. She straightened out her wheels and remained in the number two lane. The left rear tires of the trailer struck the front passenger side of Parisian's car. The collision pushed her across the number one lane, her car hitting the center divider at about a 45-degree angle before bouncing off. She tried to maintain control her car, but it hit the divider and bounced off again. Her car came to rest partway in the number one lane and the center median. She felt a sharp pain in her midback. The Foster Farms truck had pulled onto the right shoulder.
Parisian called 911 and told the operator that she had been struck by a big Foster Farms truck and was hurt. An ambulance and California Highway Patrol (CHP) Officer Danny Maher responded to the scene. Parisian told Maher that a Foster Farms truck had come into her lane and struck her and she had bounced off the wall twice. She did not describe the color of the truck. Parisian estimated that the accident occurred at about 11:37 a.m.
At trial, Parisian testified that the cab portion of the truck was white and the trailer was a "lighter color" than the chicken logo. She did not notice the license plate number or a trailer number. Although she applied her brakes, she was uncertain whether she did so before or after she was struck. She visited the junkyard two months after the accident and saw two big tire marks on her car in the area where it was struck.
Witness Testimony
1) Bryan Davis
Bryan Davis was driving in the number two lane, approximately ten car lengths behind Parisian. He saw a car hit the center divider at a sharp angle, bounce off and hit it a second time. He moved into the number three lane, drove past the car, and called 911. He did not recall seeing a truck or other vehicles. Davis estimated that he called 911 at 11:37 a.m.
2) Vicki Dreste (Marotto)
Vicki Dreste Marotto was northbound on the 101 freeway. She was in the number one lane when she passed the Turnpike Road overcrossing. Approximately five car lengths ahead, she saw a car go out of control, as if it had a flat tire. The car swerved from the number two lane into the number three lane. It spun around, and slammed into the center divider. At the time the car lost control, Marotto was speaking to someone on her phone. Within seconds she called 911. Her call was logged in at 11:41 a.m. She did not see a truck or other car pulled to the side of the roadway.
3) Diane Pulverman
Diane Pulverman was entering the Turnpike onramp, driving northbound on the 101 freeway. As she merged onto the freeway she saw to her left a white puff of smoke and debris "flying around." The smoke was coming from the back left side of a trailer truck in the number two lane. She assumed the truck had hit something, but her view was obscured by the trailer. The trailer began to fishtail and cut across in front of Pulverman towards the right shoulder, and slowed. She did not see if it stopped. As the trailer crossed in front of her, Pulverman braked to avoid a collision. At trial, she described the trailer as "mostly white" with a Foster Farms logo.
Pulverman testified at trial that attorney Raymond Pulverman is her husband. He originally represented Parisian, but withdrew from the case when Pulverman realized she had seen the accident. This happened several months after the collision, when Mr. Pulverman was describing it. Parisian then hired trial counsel Jeffrey Young to represent her. She has known Young for at least 20 years because he rents office space in the same building as Mr. Pulverman.
4) CHP Officer Maher
CHP Officer Danny Maher testified that he had no independent recollection of the collision, other than his files. He received a call from the dispatch center at 11:39 a.m. and arrived at the accident scene at 11:49 a.m. Parisian told him that she was in the number two lane and a Foster Farms truck was in the number three lane. The truck began to move into her lane. She attempted to move into the number one lane, but could not do so because there was another car in that lane. She remained in the number two lane and the truck collided with the side of her car and forced her into the center divider. Parisian did not describe the truck's color. Maher did not see any skid marks or debris and did not recall Parisian saying that she had braked.
Maher called Foster Farms and left a voicemail for safety manager Bob Chituras. He asked Chituras to check his records for any Foster Farms truck that could have been in the area at the time of the accident. On May 5, Chituras told Maher that Foster Farms had six or seven trucks in the Goleta area on that date. He said that Foster Farms had interviewed each driver and none were involved in a collision or near miss. Chituras told Maher that that Foster Farms had previously sold trucks to private entities who neglected to remove the logo.
In May 2007 (over one year later), Foster Farms' senior claims adjuster, Linda Heaslet, told Maher that Sepulveda was Foster Farms' only driver in the area on the day of the collision. She said that he had pulled over in the vicinity of Goleta to look at a map. She added that the tires on Sepulveda's trailer were similar to marks on Parisian's car.
5) Safety Manager Robert Chituras
Chituras testified that, long after the collision, someone in his office told him that Foster Farms had only one truck in the Santa Barbara and Ventura areas, and its driver was Jesus Sepulveda. Chituras was part of the safety committee investigating the accident. The committee generated a form directed to Sepulveda, entitled, "Review of your accident." Chituras did not speak to Sepulveda and did not know if any committee member spoke with him. After its investigation, the safety committee determined that the accident was "nonpreventable." Chituras testified he "possibly could have been" aware at the time of the investigation that Sepulveda's driving license status was subject to certain conditions imposed by the DMV.
The accident report was redacted to exclude the statement "nonpreventable," but Chituras testified to its content.
6) Jesus Sepulveda
Sepulveda testified that he was terminated by his previous employer for violating safety rules while driving its truck. He had three prior traffic collisions and one collision with a light pole. Sepulveda began working for Foster Farms in January 2005. The DMV had informed him that if he incurred any traffic tickets From November 2005 through November 2006, his license would be suspended.
The DMV assesses "points" for various types of negative driving activity. A DMV official testified that, as of April 24, 2006, Sepulveda had 5.5 points on his driving record. If he accumulated any more points before November 2006, the DMV could suspend his license for six months.
Sepulveda denied being in an accident on April 24, 2006. However, he testified to certain events that occurred on that date. He indicated that he was traveling at 55 miles per hour (mph) when he passed the Turnpike Road overcrossing. He testified that "maybe" he changed lanes from the number three lane to the number two lane. About a quarter hour after he passed the overcrossing, he pulled onto the shoulder to look at the map. He recorded this time as 11:40 a.m. on his driver's manifest.
In an itinerary prepared by Foster Farms for Sepulveda's deliveries on April 24, 2006, the company estimated that Sepulveda would arrive at the Costco in Goleta at 11:50 a.m. Sepulveda's manifest showed that he made a stop at 11:40 a.m., arrived at Costco at 12:07 p.m. and departed at 12:27 p.m. Sepulveda later testified that he never pulled off the 101 freeway anywhere in Santa Barbara or Goleta on the date of the collision and he did not learn of the accident until ten months later.
Expert Testimony
Dr. Mark Sanders is a "human factors" expert who testified for Parisian. He studies how people perceive and process information and how that affects perception, memory and attention. Sanders explained why Parisian may not have been able to recall the background color of the trailer. She was alongside the truck when she looked out the front window to see the logo above her, and the roof of her car obscured the rest of the truck. Once the truck moved into her lane, she had to shift her attention the car to her left to try to change lanes. Sanders testified that the reason witnesses Davis and Marotto did not see a truck is because they never saw the collision. Both first become aware of the accident when Parisian's car veered towards the center median.
Thomas Ganz was Parisian's accident reconstructionist. He took photographs of Parisian's car that depicted tire marks in the center of the front passenger side door that extended to the rear edge of the wheel well. Another set of marks extended from the wheel well opening toward the hood. The marks were very similar to the size and spacing of tires that would be found on the back of a semi-trailer of an 18-wheeler tractor-trailer.
Jim Flynn is a mechanical and safety engineer. He testified that the damages on Parisian's vehicle could not have come from Sepulveda's trailer. Defense counsel inquired whether Parisian could have avoided a collision if she "had braked her car significantly when she saw the front tractor tires start to move into her lane . . . ." The court sustained Parisian's objection that the question called for speculation, was without foundation and was an improper hypothetical.
DISCUSSION
I
Lack of Instruction on Comparative Negligence
Appellants argue there was evidence that Parisian was negligent, thus the trial court erred by refusing to instruct on comparative negligence. Specifically, they claim that she failed to brake when she saw the front wheels of the tractor moving into her lane. In support of their theory, appellants allege that (1) Parisian stated that she did not apply her brakes; (2) CHP Officer Maher testified that there were no skid marks at the accident site, supporting the inference that Parisian did not brake; (3) Parisian did not tell Maher at the accident scene that she braked; and (4) on cross-examination, defense counsel inquired whether witness Marotto saw Parisian braking, and she answered that she only remembered seeing the vehicle swerve. Appellants also assert that the trial court erred by refusing to allow their accident reconstructionist from testifying as to whether Parisian could have avoided the accident by braking.
Appellants' alleged evidence is contradicted by the following: (1) Parisian did testify that she braked, but said she was uncertain if it was before or after she was struck; (2) there was no expert testimony that the absence of skid marks means a driver did not brake; (3) Parisian's lack of a statement to Officer Maher regarding braking does not constitute affirmative evidence that she did not brake; and (4) Marotto's testimony that she only saw Parisian swerve is not evidence that Parisian did not brake.
"A judgment may not be reversed for instructional error in a civil case 'unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' [Citation.]" (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) Parisian was struck by a tractor-trailer entering her lane while traffic was moving at approximately 65 mph. She was hit with sufficient force that her car traveled across the number one lane, impacting the center divider twice. There is no evidence that Parisian was negligent or that she could have done anything to avoid the collision. To the contrary, she acted with care by attempting to move into the number one lane to avoid being struck. Given the absence of evidence of negligence on her part, there was no basis for an instruction on comparative negligence. The court did not err in refusing the instruction. The expert testimony was also correctly excluded. No foundation had been laid for its admission, it would have been speculative and constituted an improper hypothetical. There was no error.
Alleged Evidentiary Error
1) Admission of Photograph of White Foster Farms Truck
Over defense objection, the trial court admitted a photograph of a white Foster Farms truck into evidence. Appellants claim that the photograph (exhibit No. 92) was not properly authenticated, thus its admission was reversible error.
Employee Jason Way was designated Foster Farms' person most knowledgeable as to the creation of its logos and artwork on trailers from 2000 to 2006. He testified that, from 2003 through mid-2004, Foster Farms was in the process of changing its trailers to a logo on a blue background. Way stated that he had not seen the logo design and color of trailers previously in use because the new decals with the blue background were being installed when he was hired in July 2004.
Parisian's counsel showed Way a photograph and asked him if had had seen any Foster Farms trailers with a white background and chicken logo, since the date he was hired. Way responded that he had seen older white trailers with a chicken logo, but they were not roadworthy. The court asked for clarification concerning precisely the type of trailer Way had seen. It inquired, "Let's assume for the sake of argument this shows an original white Foster Farms trailer with the classic chicken logo. [¶] . . .[¶] Have you seen trailers like that in your work at Foster Farms?" Way answered that he had, and the photograph was admitted into evidence. The defense made a foundational objection. There was no objection to the trial court's line of questioning.
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is that which has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Id., § 210.) The trial court has the duty to determine the relevance and thus the admissibility of evidence before it can be admitted. (Id., §§ 400, 402.)
Appellants claim the trial court did not ask who took the photograph, where and when it was taken, or how it was obtained. They allege that Parisian altered the photograph to mislead counsel and the court. Appellants assert that the photograph was not on Parisian's exhibit list, and her counsel did not provide defense counsel with prior notice or a copy of the exhibit.
According to Foster Farms, during post-trial proceedings it discovered that the photograph was taken from the internet. The name of the photographer appeared in the bottom left hand corner of the internet photograph, but the photograph presented to jury had been cropped and did not include his name. Appellants contend that the name would have caused the trial court and defense counsel to inquire about the photograph which, in turn, would have revealed that the photograph was taken in 2002.
This argument is mere speculation. Even if there was error, admission of the photograph was not prejudicial. There had been exhaustive testimony that Foster Farms had white trucks in service before 2004. Appellants argued vigorously that the only Foster Farms trucks in service at the time of Parisian's collision were blue, thus it had no ownership of the truck that caused Parisian's injuries. Way testified that white trailers existed prior to 2004. The trial court's inquiry and admission of the photograph would only have reinforced Way's testimony that Foster Farms had once operated white trailers.
2) Exclusion of Uninsured Motorist Claim
Prior to trial, Parisian made an uninsured motorist (UM) claim which was resolved before Sepulveda was identified as the driver. Insurance Code section 11580.2, subdivision (b) defines an "uninsured motor vehicle" as one whose "owner or operator is unknown." At the time Parisian made her claim, the driver was unknown, even though Parisian identified the vehicle as a Foster Farms truck. Indeed, at trial, Foster Farms disclaimed ownership and suggested Parisian had been hit by a trailer that had been sold to a third party who failed to remove the logo.
Parisian moved in limine to exclude evidence of this claim. Appellants opposed the motion, arguing that her testimony was inconsistent--she first said the driver was unknown and, at trial, testified that it was a Foster Farms truck driven by Sepulveda. The court granted the motion.
Appellants contend that evidence of Parisian's UM claim should have been admitted as a prior inconsistent statement to impeach Parisian's credibility by demonstrating her inability to identify the vehicle that caused the accident. According to appellants, the collateral source rule would not have been implicated because the trial was bifurcated and Parisian's filing of the UM claim was relevant to the liability phase only. They suggest that the court could have given a limiting instruction directing the jurors to not consider the UM evidence in evaluating damages.
Parisian consistently described the vehicle which struck hers as a Foster Farms truck, but at the time of the UM claim, she did not know the identity of the driver. Thus, the UM statutory requirements were met and there was no impeaching inconsistency. Admission of her UM claim could have confused the jury by causing it to speculate about partial compensation and may have required explanation concerning the UM law. The claim was properly excluded under Evidence Code section 352.
We reject appellants' argument that they are entitled to a setoff equivalent to the amount of Parisian's recovery in her UM claim. They are unable to point to a court order concerning a setoff, or identify anything in the record indicating that the court unequivocally approved such a setoff.
3) Exclusion of Accident Reconstruction DVD
At trial, appellants sought to introduce a DVD that allegedly recreated the accident from the perspective of Parisian and the three witnesses. Parisian objected, and the trial court excluded the DVD from evidence.
Accident reconstructions are admissible, in the trial court's discretion, if the proponent of the evidence demonstrates that it was conducted under circumstances substantially similar to those of the actual occurrence. (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1111, fn. 5; Dirosario v. Havens (1987) 196 Cal.App.3d 1224, 1231; Endicott v. Nissan Motor Corp. (1977) 73 Cal.App.3d 917, 930.)
The DVD showed four versions of the collision, all of which were inconsistent with the accounts provided by Parisian and witnesses Davis, Marotto and Pulverman. The DVD was filmed from the passenger seat rather than from the driver's side. The views of Davis and Marotto showed a truck, but neither witness testified to having seen a truck. Pulverman's view showed a car, but she did not testify to having seen a car. The DVD depicted two versions of the collision from Parisian's perspective. In one, she was shown driving alongside a truck for a long period of time, and the truck activating its turn signal before changing lanes. Another showed Parisian far behind the truck, in a position in which she never would have been struck. Both contradicted her testimony.
On appeal, appellants argue that the trial court erred because it considered the DVD as demonstrative evidence, but failed to consider its admissibility as independent evidence. They contend that the video would have shown that, if a tractor-trailer had been present, Davis and Marotto would have seen it because of its size. The DVD would have rebutted Pulverman's testimony by showing that "it would have been difficult for her not to have seen [Parisian's] car."
Appellants contend the alleged error was made more egregious because the court admitted the testimony of Parisian's human factors expert, Dr. Mark Sanders. He testified why Parisian would have been able to see the Foster Farms logo, but not the rest of the truck, and why Davis and Marotto might not have seen a tractor-trailer.
As described above, the DVD depicted circumstances that were not substantially similar to those described in witness testimony. It therefore lacked an adequate foundation, rendering it inadmissible. Moreover, it had the potential for misleading the jury. (Evid. Code, § 352.) The trial court acted well within its discretion by excluding this evidence. Appellants do not allege error in the admission of the testimony of Dr. Sanders, and we discern none.
4) Exclusion of Evidence of Parisian's Clinical Depression
Appellants claim that it was error to exclude evidence of Parisian's history of clinical depression while allowing her to recover damages for depression caused by the accident. The trial court excluded evidence of Parisian's clinical depression based upon her representations that she was not placing her mental condition at issue. Appellants claim, however, that Parisian put her mental state at issue during the damages phase by eliciting witness testimony about the change in her mood after the accident. The testimony included statements that, prior to the accident, Parisian "was happy and outgoing and enthusiastic . . . [a] social butterfly." Before the collision, she had been "gregarious and active . . . . Very into life." Since the accident, she has "become an introvert."
The collision caused Parisian to suffer an acute burst compression fracture of the T-12 vertebrae and a tear of the right hip cartilage. Her back injury included a bone fragment that had broken off from the backside of the vertebrae and pushed into the spinal canal. Parisian's spinal surgeon testified that it is an unstable injury that, in the worst case, could result in paralysis.
Parisian was placed in a full body brace with restrictions on her activity, lifting and bending. She continues to suffer from chronic nerve pain. As a result of her injuries, she became disabled and lost her ability to work at the Bacara Resort. Parisian's continued medical treatment includes implanting a spinal cord stimulator to block the nerve pain. If her hip pain progresses, she could require a hip replacement.
Following the testimony concerning the changes in Parisian's mood post-accident, defense counsel cross-examined Parisian's daughter. Counsel asked whether Parisian had been treated for clinical depression since 1990. Parisian's counsel objected, and the court held a hearing. It reconsidered the admission of depression evidence and again excluded it.
Appellants assert that, by keeping evidence of Parisian's prior depression from the jury, the court left it with a "distorted picture" from which only one inference could be drawn--the accident was the sole cause of Parisian's depression.
Parisian did not allege in her complaint any type of psychiatric injury or cognitive deficits. She stipulated that she would make no claim for mental injury beyond that associated with her physical injuries. Extensive medical evidence was presented at trial of Parisian's orthopedic injuries. All the references to Parisian's mental state related to the direct consequences of her physical injuries resulting from the collision. There was no expert testimony concerning psychological injury. The trial court properly excluded evidence of Parisian's clinical depression.
Damage Award
The jury awarded Parisian total damages of $4,190,002. This consisted of past economic loss of $474,723; future economic loss of $1,265,279; past pain and suffering of $450,000; and future pain and suffering of $2,000,000. Parisian's award for past economic loss was comprised of lost earnings of $297,846, medical expenses of $79,945 and "other loss" of $96,932. An economics expert retained by Parisian testified that she had obtained student loans in the amount of $96,932.
After the collision, Parisian obtained a bachelor's degree in psychology, and entered graduate school at Antioch University. Parisian testified that she began studying part-time in January 2007. In spring of 2007 to the time of trial, she was a full-time student.
Appellants maintain that the award of past economic loss constituted an improper double recovery. Without any citation to authority, they claim that a plaintiff cannot recover for past earnings and students loans unless there is substantial evidence that she was simultaneously employed while a student. They further assert that her student loans were speculative and not recoverable as damages because there was no evidence linking the loan monies to the cost of her education.
Parisian established, through expert testimony, the dollar amount of her student loans. This was sufficient evidence to support the damage award. If appellants wished to obtain evidence as to the actual dollar amount of Parisian's tuition, their opportunity to do so was in the trial court, not on appeal.
Award of Prejudgment Interest/Section 998 Offers
Where a plaintiff presents a valid offer to compromise (section 998 offer), and the defendant does not obtain a more favorable judgment, the defendant may be required to pay expert witness fees and plaintiff's costs. (Civ. Code, § 3291, Code Civ. Proc., § 998). Interest on the judgment shall accrue at a rate of 10 percent per annum from the time of the section 998 offer. (Civ. Code, § 3291.)
"If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding . . . the court . . . in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses . . . in addition to plaintiff's costs." (Code of Civ. Proc., § 998, subd. (d).) In addition, the judgment shall bear interest at a rate of 10 percent per annum, from the time of plaintiff's first section 998 offer. (Civ. Code, § 3291.)
Appellants assert that Parisian failed to make a valid section 998 offer, thus she is ineligible for prejudgment interest. They claim the offer was invalid because it was made to multiple parties and was not apportioned among them. Thus, Foster Farms and Sepulveda were unable to accept or reject the offer individually. Although Foster Farms and Sepulveda later stipulated to respondeat superior, we address the question of the validity of the section 998 offers because the stipulation was not entered into until the liability phase of the trial.
Prior to trial, Parisian made separate section 998 offers to Foster Farms and Sepulveda. Her offer to Foster Farms stated that she would "allow judgment to be entered for her claims against Defendant, FOSTER POULTRY FARMS, INC. for the sum of $189,000 (One hundred eighty-nine thousand dollars), each party to bear its own costs and attorneys' fees and that said amount represents a total judgment on the complaint herein. To be clear, plaintiff will allow judgment to be taken in her favor for the total sum of $189,000 and if accepted will dismiss her entire complaint as to all defendants." Parisian's offer to Sepulveda read that she would "allow judgment to be entered for her claims against Defendant, JESUS SEPULVEDA, for the sum of $189,000" and was otherwise identical. Both offers had a separate page for the individual party to indicate acceptance.
The offers were captioned individually. One read "Plaintiff Chela St. John-Parisian's Offer to Compromise to Foster Poultry Farms . . . ." The other read "Plaintiff Chela St. John-Parisian's Offer to Compromise to Jesus Sepulveda . . . ." Both contained an opening sentence that read, "TO DEFENDANTS FOSTER POULTRY FARMS, INC., and JESUS SEPULVEDA AND TO THEIR ATTORNEYS OF RECORD."
Appellants argue that Parisian's offers asked them to each pay 100 percent, treating them as jointly and severally liable, although they were not. They claim the offers were an attempt to force them to negotiate among themselves how to pay the total settlement sum.
We reject these contentions. A single, lump sum offer to multiple plaintiffs, which requires them to agree to apportionment, is invalid. (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 112.) A valid offer made to multiple parties must be expressly apportioned among them and not conditioned on acceptance by all of them. (Ibid.) Here, the offers were separately directed to each defendant. They responded with individual rejections. Appellants were not required to negotiate with each other to apportion liability. The offers were not contingent upon one another. They were sufficiently specific to allow one defendant to accept without obtaining the other's acceptance. That both offers were made in the same dollar amount of $189,000 does not render them invalid.
Parisian made the offers in August 2007. Each defendant rejected her offer, and the jury returned a verdict of almost $4.2 million. The trial court correctly ruled that Parisian is entitled to 10 percent interest per annum on the judgment from the date of her August 2007 offer through satisfaction of judgment. The court noted that it would be premature to include Parisian's prejudgment interest in the judgment, but that she has established her statutory right to collect it.
II
Parisian's Appeal of Post-Judgment Orders
Parisian separately appeals the post-judgment order denying cost of proof sanctions under Code of Civil Procedure section 2033.420. She also challenges the order striking costs and expert witness fees from her motion to tax costs.
1) Cost of Proof Sanctions
Parisian was denied recovery of costs and fees pursuant to Code of Civil Procedure section 2033.420. She claims that she should be awarded costs for the expense of proving the matters which were the subjects of the three requests for admission (RFAs) that appellants denied.
Code of Civil Procedure section 2033.420, subdivision (a) provides that a party who denies a request for admission may be ordered to pay the costs and fees incurred by the requesting party in proving that matter. Such an order need not be made if the court finds "(1) that an objection to the admission was sustained or a response to the request was waived; (2) the admission sought was of no substantial importance; (3) the party failing to make the admission had reasonable ground to believe that the party would prevail on the matter; or (4) there was other good reason for the failure to admit the request." (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1276.) We review a trial court's ruling on a motion for costs of proof under section 2033.420 for abuse of discretion. (Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055, 1066.)
The three requests for admissions (RFAs) and appellants' responses for which Parisian claims costs of proof read as follows:
RFA No. 4: "ADMIT that on April 24, 2006 the tractor-trailer rig driven by Jesus Sepulveda was within 1/2 mile of the Turnpike Road overcrossing and U.S. Highway 101 northbound, at about 11:37 a.m."
Response to RFA No. 4: "Because responding party does not possess enough information, or does any other party, to admit this request, based on lack of information, responding party denies this request."
RFA No. 5: "ADMIT that on April 24, 2006, the tractor-trailer rig driven by Jesus Sepulveda made contact with plaintiff's vehicle at about 11:37 a.m. on U.S. Highway 101 northbound."
Response to RFA No. 5: "Objection. Asked and answered, argumentative. See responding defendant's response 20.1, 20.2, 20.5, 20.7, 20.8, 20.9, 20.10, and 20.11 to plaintiff's first set of judicial form interrogatories. Without waiving said objection, and subject thereto, responding defendant answers as follows: Deny."
RFA No. 6: "ADMIT that on April 24, 2006 Jesus Sepulveda pulled his tractor-trailer rig over to the right shoulder of U.S. Highway 101 northbound, sometime between 11:37 a.m. and 11:49 a.m."
Response to RFA No. 6: "Objection. Asked and answered, argumentative. See responding defendant's responses 20.5 and 20.8 to plaintiff's first set of judicial form interrogatories. Without waiving said objection, and subject thereto, responding defendant answers as follows: Deny."
Parisian moved post-judgment to recover the costs of proving the three RFAs. Appellants filed opposition, stating that they had denied the RFAs because they had reasonable grounds to believe they would prevail at trial. Parisian contends that Foster Farms knew the requested facts were true when it denied them.
The trial court denied the motion, finding that Foster Farms "had reasonable grounds to believe that they would prevail at trial on the issue of liability as raised in the requests for admission. This was a circumstantial case which required the piecing together of fragments of evidence to paint the big picture for the jury. [Foster Farms] was not required to reject out of hand its driver's version of events (Mr. Sepulveda denied having been involved in the accident), even though the jury in judging his credibility, and taking into account the totality of evidence presented, found that he was the phantom driver who caused the accident that harmed Ms. St. John-Parisian."
We conclude there was good reason for the trial court to deny Parisian's request. She had asked appellants to admit that Sepulveda was driving the truck, he collided with her and pulled the truck to the freeway shoulder. To admit these RFAs would have conceded liability--the crux of the case. Appellants were entitled to take the matter to trial to see if they could obtain a verdict in their favor. The judge who presided over the trial and observed the presentation of the evidence did not abuse her discretion in denying Parisian her costs of proof in connection with the three RFAs. 2) Motion to Tax Costs
Parisian argues that the trial court erred in striking her costs of $1,034.06 incurred for subpoenaed records and $6,545.30 in defense expert witness fees on the grounds that the experts testified as percipient witnesses. Under Code of Civil Procedure section 998, subdivision (d), the court may, in its discretion, require the defendant to pay plaintiff's post-offer costs, including expert witness fees. Parisian has not identified an abuse of discretion to support her claim of error.
Fees were stricken for Dr. Mathison, the family physician ($2965); Dr. Ramona Clark, who reviewed Parisian's emergency room x-ray post-accident ($465); Dr. Mitchell, emergency room doctor ($865); and Kurt Weiss, who did not testify at trial ($2,250.30).
DISPOSITION
The judgment is affirmed. The trial court's orders denying Parisian cost of proof sanctions (Code Civ. Proc. § 2033.420), striking a portion of her costs, and awarding prejudgment interest (Civ. Code, § 3291) are likewise affirmed. Costs on appeal are awarded to Parisian.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
GILBERT, P.J.
PERREN, J.
Denise de Bellefeuille, Judge
Superior Court County of Santa Barbara
Law Offices of Wayne McClean, Wayne McClean; Law Offices of Jeffrey S. Young, Jeffrey S. Young; Evan D. Marshall for Plaintiff and Appellant Chela St. John-Parisian.
Horvitz & Levy, Barry R. Levy, Wesley T. Shih; Soltman Levitt, Flaherty & Wattles, Garth Drozin for Defendants and Appellants Foster Poultry Farms, Inc. et al.