Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CC10398, Derek W. Hunt, Judge.
Stephen D. Johnson for Plaintiff and Appellant.
Law Offices of Lydia Bouzaglou-Newcomb and Amy H. Duff for Defendant and Respondent.
OPINION
FYBEL, J.
Introduction
Plaintiff Norman Koshak appeals from a judgment entered after a jury found he had sustained $17,280 in damages due to the negligence of defendant Fullerton Manufacturing Company (FMC) and others. The jury allocated responsibility for Koshak’s damages as follows: Koshak—17 percent, FMC—46 percent, OEM Press Systems, Inc. (OEM)—23 percent, and unidentified, nonparty “[o]thers”—14 percent. The trial court entered judgment in favor of Koshak and against FMC in the amount of $7,948.80 (46 percent of $17,280). Koshak contends the trial court erred by failing to enter judgment against FMC for the total amount of damages he suffered.
Under well established authority applying the joint and several liability rule for economic damages, Koshak was entitled to an award constituting the full amount of economic damages ($17,280) from FMC, less $2,937.60—representing the amount attributed to Koshak’s contributory negligence. (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188; DaFonte v. Up Right, Inc. (1992) 2 Cal.4th 593, 600.) We therefore affirm the judgment as modified to award Koshak a total of $14,342.40 in damages against FMC.
Background
In August 2004, a Fullerton warehouse flooded, damaging yarn stored there for Koshak’s business. Koshak, as an individual and doing business as Newton’s Yarn Country, filed a complaint which, as amended, alleged a single negligence claim against his landlord, FMC, and cotenant OEM. Koshak alleged that, as a result of defendants’ negligence, he suffered property damage, loss of business opportunity and income, and loss of business value. The complaint prayed for damages in an amount of not less than $855,000.
OEM filed a cross complaint against FMC and the City of Fullerton for total or comparative equitable indemnity and declaratory relief. Koshak filed a first amended cross complaint against OEM, FMC, the City of Fullerton, and United States Fidelity & Guaranty, alleging claims for indemnification, apportionment of fault, declaratory relief, breach of contract, and intentional tort. FMC filed a fourth amended cross complaint against OEM, Koshak, the City of Fullerton, United States Fidelity & Guaranty, Colony Insurance, and Coast Insurance Agency. FMC’s fourth amended cross complaint alleged claims for declaratory relief, express indemnity, implied contractual indemnity, equitable indemnity, breach of contract, negligence, contribution, fraud, negligent misrepresentation, and declaratory relief.
The trial court ordered the trial of Koshak’s amended complaint severed from trial of the cross-complaints. The trial of Koshak’s amended complaint was further bifurcated to resolve the liability issues, followed by the damages issues.
Following the liability phase of the trial of Koshak’s amended complaint, the jury returned a verdict in favor of Koshak, as follows:
“NO. 1: Has plaintiff Norman Koshak proved by a preponderance of the evidence that either or both of the following defendants were negligent in respect to the flooding at the warehouse located at 311 Highland Avenue in Fullerton in August 2004?
“OEM Press Systems Inc.
“Answer: X Yes ___ No
“Fullerton Manufacturing Company
“Answer: X Yes ___ No
“If you[] answered yes to any of the defendants, answer the following question, if not, have the foreperson sign, date, and return the verdict.
“NO. 2: Assuming that 100% represents the total negligence in respect to the flooding at the warehouse located at 311 Highland Avenue in Fullerton in August 2004, what percentage of this 100% is due to the contributory negligence of the following?
“To OEM Press Systems Inc. 23 %
“To Fullerton Manufacturing Co. 46 %
“To Plaintiff 17 %
“To Others 14 %
“TOTAL: 100 %”
Following the damages phase of the trial, the jury returned a verdict stating: “The total harm suffered by the plaintiff as a result of the flooding at the warehouse located at 311 Highland Avenue in Fullerton in August 2004, was $17,280.00.”
OEM and FMC dismissed their respective cross complaints with prejudice. Koshak also dismissed his cross complaint, but the record does not show whether Koshak’s dismissal of the cross complaint as to each cross defendant was with or without prejudice.
Koshak dismissed OEM from the amended complaint with prejudice. No details regarding Koshak’s dismissal of OEM from the amended complaint are provided in the record.
Following the parties’ dispute as to whether Koshak should be awarded the full amount of his damages against FMC or only the portion of damages commensurate with the jury’s finding of FMC’s relative fault, judgment was entered, stating in relevant part: “Plaintiff Norman Koshak individually and doing business as Newton’s Yarn Country shall have and is hereby awarded a judgment against defendant Fullerton Manufacturing Company in the amount of $7,948.80 (i.e. 46% x $17,280), plus plaintiff’s costs and necessary disbursements as evidenced by a Memorandum of Costs and Disbursements.”
Koshak appealed “[a]s to Defendant and Cross Complainant Fullerton Manufacturing Company Only.”
Discussion
Koshak contends the trial court erred by entering judgment awarding Koshak only $7,948.80 against FMC (constituting FMC’s 46 percent share of responsibility for Koshak’s damages), instead of $17,280 (the total amount of Koshak’s damages) under the rule of joint and several liability.
We begin our analysis by briefly reviewing the development of joint and several liability law in California during the past several decades, as explained by our Supreme Court: “Prior to the adoption of comparative negligence principles in California in the mid 1970’s, the jury, in assessing liability or awarding damages in an ordinary tort action, generally did not determine the relative degree or proportion of fault attributable either to the plaintiff, to an individual defendant or defendants, or to any nonparties to the action.... [I]f a defendant was found to be at all negligent, regardless of how minimally, under the joint and several liability rule he could be held responsible for the full damages sustained by the plaintiff, even if other concurrent tortfeasors had also been partially, or even primarily, responsible for the injury. [Citation.] Moreover, the governing rules at that time gave the plaintiff unilateral authority to decide which defendant or defendants were to be sued [citation]; a defendant who had been singled out for suit by the plaintiff generally had no right to bring other tortfeasors into the action, even if the other tortfeasors were equally or more responsible for the plaintiff’s injury [citation].” (Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1196 1197; see also DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at p. 603 [“Neither the allocation of fault, nor the amount of a joint and several damage award, ‘var[ied] by virtue of the particular defendants who happen[ed] to be before the court’”].)
In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829, the Supreme Court adopted a rule of comparative negligence, holding, “the contributory negligence of the person injured... shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.” (See Wiss & Peyrat, Cal. Tort Damages (Cont.Ed.Bar 2d ed. 2002) § 15.11, p. 452 [“The first step in calculating the amount of a plaintiff’s economic damages judgment for personal injury (awarded in a joint and several judgment against all defendants to whom a fault percentage was assigned) is to subtract from the full amount of such damages (as found by the trier of fact) a percentage equal to the fault percentage assigned by the trier of fact to the plaintiff”]; see DaFonte v. Up Right, Inc., supra, 2 Cal.4th at pp. 602 603 [“Long before the enactment of Proposition 51, we had held that the ‘damages’ for which defendants were jointly and severally liable were the full amount of the loss caused by all responsible persons, reduced only by the plaintiff’s share of fault”].)
In American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 591 598, the Supreme Court held that the defendants, who were sued, could bring other tortfeasors, who were allegedly responsible for the plaintiff’s injury, into the action through cross complaints and that any defendant could obtain equitable indemnity, based on comparative fault, from other defendants. (See Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1197.)
In 1986, California voters approved the Fair Responsibility Act of 1986 (Civ. Code, §§ 14311431.5) (commonly known as Proposition 51) which “modified the traditional, common law ‘joint and several liability’ doctrine, limiting an individual tortfeasor’s liability for noneconomic damages to a proportion of such damages equal to the tortfeasor’s own percentage of fault.” (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1192.) The Supreme Court explained, “Proposition 51 retains the traditional joint and several liability doctrine with respect to a plaintiff’s economic damages.” (Id. at p. 1198; see DaFonte v. Up Right, Inc., supra, 2 Cal.4th at p. 600 [“Proposition 51 thus retains the joint liability of all tortfeasors, regardless of their respective shares of fault, with respect to all objectively proveable expenses and monetary losses”].)
Economic damages are defined in Civil Code section 1431.2, subdivision (b)(1) as “objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities.” Noneconomic damages are defined in section 1431.2, subdivision (b)(2) as “subjective, non monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.”
As Proposition 51 allows an injured plaintiff “to recover the full amount of economic damages suffered, regardless of which tortfeasor or tortfeasors are named as defendants,” the tortfeasors “are left to sort out payment in proportion to fault amongst themselves, and they must bear the risk of nonrecovery from impecunious tortfeasors.” (Aetna Health Plans of Cal., Inc. v. Yucaipa Calimesa Joint Unified School Dist. (1999) 72 Cal.App.4th 1175, 1190.) “As to noneconomic damages, however, the plaintiff must sue all the tortfeasors to enable a full recovery. Failure to name a defendant will preclude recovery of that defendant’s proportional share of damages, and the plaintiff will bear the risk of nonrecovery from an impecunious tortfeasor.” (Ibid.)
Here, the amended complaint shows Koshak sued FMC and OEM for negligence and sought recovery of economic damages in the form of property damage, loss of business opportunity and income, and loss of business value. In addition, the trial court granted OEM’s motion in limine seeking to exclude at trial the admission of evidence of any emotional distress damages. Neither party cites any portion of the record showing the admission of evidence that might have supported an award of noneconomic damages.
In the respondent’s brief, FMC argues, “the jury did not specify whether the damages were economic or non-economic, thus [the trial judge]’s apportionment of liability was entirely proper.” Even if we were to assume the record might have supported an award of noneconomic damages, FMC waived the right to offset any noneconomic damages “by failing to propose a special verdict which differentiated between economic and noneconomic damages.” (Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 444.)
As the jury’s damages award constituted economic damages, Koshak was entitled to recover the full amount of damages awarded, reduced by his share of fault. (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at pp. 602 603.)
FMC argues the judgment properly reduced the award against FMC by OEM’s 23 percent share of fault. FMC argues: “After the trial and after the verdict was entered, [Koshak] agreed to dismiss OEM in exchange for non payment of OEM’s 23%. OEM was a viable defendant. Now [Koshak] seeks to hold [FMC] responsible for the 23% on a joint and several liability theory. There is no rational justification for this settlement with OEM when OEM was insured and had money to pay the judgment. The only basis for such an agreement could be to extract some type of vengeance against the landlord [FMC]. [Koshak]’s attempt to wrongly extort this money from [FMC] when the money was available from OEM is prejudicial to [FMC] and should not be tolerated by this court.”
Proceeds from prejudgment settlements with the defendants may be applied to reduce nonsettling defendants’ damages liability. (Code Civ. Proc., § 877, subd. (a); see Espinzoa v. Machonga (1992) 9 Cal.App.4th 268 [preverdict settlement]; Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1 [postverdict settlement].) Here, however, the record does not show Koshak obtained any proceeds, by settling with OEM or any other tortfeasor, to be applied to reduce FMC’s damages liability. Indeed, as quoted ante, the respondent’s brief asserts no money was obtained in Koshak’s settlement with and dismissal of OEM from the case, and there is no showing to the contrary. Koshak was permitted to proceed solely against FMC to recover the full amount of economic damages caused by FMC, OEM, and by “[o]thers.” FMC, in turn, had the option of pursuing a comparative equitable indemnity claim against OEM or the other tortfeasors by filing a cross complaint or by initiating a separate indemnity action to recover any amount it paid Koshak in excess of its proportionate share of damages. (Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1197 1198.) FMC does not explain why or under what circumstances it dismissed its cross complaint in this action.
In light of the foregoing, we conclude the trial court erred by entering judgment against FMC in the amount of $7,948.80. The trial court should have entered judgment in favor of Koshak and against FMC in the amount of $14,342.40, calculated by subtracting Koshak’s relative responsibility (17 percent of $17,280, which equals $2,937.60) from $17,280, the total damages suffered by Koshak.
Disposition
The judgment is affirmed as modified to award Koshak a total of $14,342.40 in damages against FMC. In the interests of justice, neither party shall recover costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.