Opinion
E050621 Super.Ct.No. RIC472000
10-17-2011
JESSE VILLALOBOS, a Minor, etc., Plaintiff and Respondent, v. CODY PICO, a Minor, etc. Defendant and Appellant.
McMahon Law Firm, Robert J. Lynch and Richard A. Vu for Defendant and Appellant. Orrock, Popka, Fortino & Brislin and Stanley O. Orrock for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Kenneth Andreen, Judge. (Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions.
McMahon Law Firm, Robert J. Lynch and Richard A. Vu for Defendant and Appellant.
Orrock, Popka, Fortino & Brislin and Stanley O. Orrock for Plaintiff and Respondent.
We are hobbled by an appellate record that does not include the pleadings, the evidence, or the arguments of counsel. Thus, when it comes to the underlying facts in this case, we are forced to rely on the parties' representations. From these, it appears that defendant Cody Pico hit plaintiff Jesse Villalobos, causing extensive damage to Villalobos's teeth. At the time, they were both minors; Cody is now an adult.. The jury found Cody liable for battery; it also found Cody's parents, Norman Pico and Mary Hernandez, liable for negligent failure to supervise.
Cody appeals. His sole contention is that the trial court erroneously allowed a double recovery by awarding the identical damages against him and against his parents cumulatively, rather than jointly and severally. We agree. Indeed, the trial court even admitted that it had erred in this respect. We will direct the trial court to modify the judgment accordingly.
I
PROCEDURAL BACKGROUND
Plaintiff Jesse Villalobos filed this action against defendants Cody Pico, Norman Pico, and Mary Hernandez.
The case was tried to a jury. During its deliberations, the jury asked: "We're unsure of how we award damages, i.e. [i]f we award full medical expense (past) on one can we award the same on another? Or will it be awarded only once?" The trial court answered: "An award for past medical expenses may be awarded against more than one party (the parties have stipulated there would not be a double recovery)."
By special verdict, the jury found Cody liable for battery; it found Norman and Mary liable for negligent supervision. Regarding damages, the jury made the following findings:
It also found Cody liable for false imprisonment, but it found the damages on this cause of action to be zero.
1. In connection with the battery cause of action against Cody: "What are plaintiff Jesse Villalobos' damages?
"a. Past economic loss $___0
"b. Future economic loss $ 1,000.00
"c. Past economic medical expenses $ 8,809.00
"d. Future economic loss medical expenses $ 40,000.00
"e. Past noneconomic loss . . . $ 50,000.00
"f. Future non-economic loss . . . $ 0
"Total $ 99,809.00" (Capitalization omitted.)
It also awarded $45,000 in punitive damages against Cody on this cause of action.
2. In connection with the negligent supervision cause of action against Norman and Mary:
"What are Jesse Villalobos' total damages? . . .
"a. Past economic loss
"lost earnings [$] -0-
"medical expenses $ 8,809.00
"other past economic loss [$] -0-
"Total Past Economic Damages $ 8,809.00
"b. Future economic loss
"lost earnings $ 1,000.00
"medical expenses $ 40,000.00
"other past economic loss [$] -0-
"Total Future Economic Damages $ 41,000.00
"c. Past noneconomic loss . . . $ 50,000.00
"d. Future non-economic loss . . . [$] -0-
"Total $ 99,809.00" (Capitalization omitted.)
The special verdict form did not ask the jury to allocate fault as between Cody and his parents. Quite the contrary — regarding the damages awarded against the parents, it specifically instructed the jury: "Do not reduce the damages based on the fault, if any, of others."
Counsel for Villalobos submitted a proposed judgment awarding his client (1) $144,809 against Cody, and (2) $99,809 against Norman and Mary, jointly and severally as to each other (thus evidently not as to Cody). Defendants filed a written objection to the proposed judgment, arguing (among other things) that it conflicted with the trial court's response to the jury's question by allowing a double recovery. The trial court nevertheless signed and entered the judgment as written.
At a postjudgment hearing, counsel for defendants asked the trial court if it had read the objection to the judgment before entering it. It did not recall. Counsel for defendants proceeded to argue that the judgment was erroneous because it could be understood to allow a double recovery. The trial court agreed that the damages were "obviously" intended to be joint and several: "[T]he two verdicts are precisely the same if you overlook punitives." It added, "[Y]ou're entitled to a correction."
Counsel for Villalobos objected that a correction was "time[-]barred." The trial court concluded, "[I]t's obvious it's a joint and several verdict. [Counsel for Villalobos] may have a point that I can't modify it now because it's not a clerical error, it's a judicial error. So you may have to take it up on appeal, but I'm sorry that you have to."
All three defendants appealed. Norman and Mary, however, subsequently filed bankruptcy petitions. As a result, we ordered their appeal severed from Cody's appeal.
II
DISCUSSION
Cody contends that the trial court erred by entering a judgment that effectively awarded a double recovery.
Villalobos responds with two alternative arguments. First, he argues that Cody has failed to show that the damages awarded did, in fact, constitute a double recovery. Second, he argues that defendants forfeited the claimed error by failing to request clarification of the special verdict before the jury was discharged.
"The mere fact that separate verdicts were rendered does not necessarily indicate that entirely separate awards were intended." (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 59.) We interpret a verdict in light of "'its language considered in connection with the pleadings, evidence and instructions.' [Citations.]" (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457.) It would have been helpful for us to have a more complete record. Nevertheless, the record we do have is more than sufficient to show that the judgment constitutes a double recovery.
Villalobos recovered against Cody for battery and against Norman and Mary for negligent failure to supervise Cody. Obviously, both sets of defendants caused the same damages. The only way the jury could have awarded distinct, nonoverlapping amounts against them would be if it had been instructed to allocate the damages among them based on their comparative fault. The special verdict form, however, shows that it was specifically instructed not to allocate damages based on comparative fault.
Also, the jury specifically asked whether it could award the same past medical expenses against more than one party. The trial court instructed it that it could. It then proceeded to award identical amounts — not only for past medical expenses, but also for future medical expenses, past noneconomic losses and future noneconomic losses — against all defendants. The very precision of the total award — $99,809 — speaks for itself.
Finally, the trial court, which did have access to the pleadings, the evidence, and the instructions, expressly found that the damages were intended to be joint and several. It would have corrected the judgment itself, except for Villalobos's contention that any such action was time-barred. This record amply demonstrates that the damages awarded against the two sets of defendants were intended to be overlapping, not distinct.
We turn, then, to the issue of forfeiture. "Frequently, failure to object to the form of a verdict before the jury is discharged has been held to be a waiver of any defect. [Citations.]" (Woodcock v. Fontana Scaffolding & Equip. Co., supra, 69 Cal.2d at p. 456, fn. 2.) Here, however, the special verdict quite clearly required the jury to determine damages in duplicative amounts. It asked the jury to determine "Villalobos' total damages" (capitalization omitted), not the amount of damages caused by any particular defendant. Moreover, again, it specifically instructed the jury not to reduce the damages awarded based on comparative fault. Any remaining ambiguity was dispelled by the trial court's response to the jury's question. With regard to whether the damages were distinct or overlapping, there was no defect for defendants to object to.
This defect cropped up for the first time, not in the special verdict, but in Villalobos's proposed judgment. Defendants objected to the proposed judgment promptly and appropriately. They therefore did not forfeit their claims.
There was a forfeiture, however, of a different defect. Under Proposition 51, the jury should have been asked to determine proportional fault for purposes of noneconomic damages. The relevant portion of Proposition 51, Civil Code section 1431.2, subdivision (a), provides: "In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount." Instead, the special verdict form simply asked the jury to determine "Jesse Villalobos' total damages" (capitalization omitted), specifically including past and present noneconomic damages. It did not ask the jury to allocate fault among defendants.
Defendants urge that, because the special verdict erroneously failed to require an apportionment of fault, the resulting judgment should be reversed, not just modified. However, they have not shown that they objected to the special verdict form on this (or any other) ground. Thus, they forfeited this error as grounds for reversal. (Lynch v. Birdwell (1955) 44 Cal.2d 839, 851; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131.)
We will therefore direct the trial court to modify the judgment in accordance with our opinion.
III
DISPOSITION
The judgment against Cody is reversed. The trial court is directed to enter a modified judgment against Cody, specifically providing that the $99,809 in compensatory damages are awarded against him jointly and severally with Norman and Mary, whereas the $45,000 in punitive damages are awarded solely against him. Cody is awarded costs on appeal against Villalobos.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J. We concur: RAMIREZ P.J. MILLER J.