Gilman v. Beverly California Corp.

Decision Date12 June 1991
Docket NumberNo. H005882,H005882
Citation231 Cal.App.3d 121,283 Cal.Rptr. 17
CourtCalifornia Court of Appeals Court of Appeals
PartiesLouise GILMAN, et al., Plaintiffs, Respondents, and Cross-Appellants, v. BEVERLY CALIFORNIA CORP., Defendant, Appellant, and Cross-Respondent.

Michael H. Salinsky, Roland W. Selman, David S. Winton, Pillsbury, Madison & Sutro, San Francisco, for defendant, appellant & cross-respondent.

James E. Towery, Hoge, Fenton, Jones & Appel, Inc., San Jose, for plaintiffs respondents & cross-appellants.

Daniel J. Gonzalez, S. Thomas Todd, Encino, for amicus curiae.

COTTLE, Associate Justice.

INTRODUCTION **

Defendant Beverly California Corporation (hereafter Beverly), operator of a licensed skilled nursing facility, appeals from a judgment entered upon a jury verdict in this medical malpractice wrongful death action. Beverly contends the trial court committed prejudicial error in excluding evidence pertaining to the allocation of negligence between Beverly and the decedent's treating physician, and in prohibiting Beverly's key expert witness from responding to plaintiffs' expert's testimony. Beverly also contends that the noneconomic damage award must be reversed because the trial court refused to give complete instructions and because the award is excessive as a matter of law. Finally, Beverly contends the court erred in permitting plaintiffs to recover their expert witness costs and prejudgment interest.

Plaintiffs cross-appeal, based on the trial court's manner of calculating the judgment. The court first reduced the jury's verdict for noneconomic damages to $250,000 pursuant to the Medical Injury Compensation Reform Act (MICRA), and then reduced it further, pursuant to Proposition 51, to reflect the percentage of fault attributed to the decedent's treating physician. Plaintiffs contend the court should have applied Proposition 51 before reducing the noneconomic damages to the MICRA cap of $250,000.

We shall affirm both the judgment and the manner in which it was calculated. We shall reverse, however, the order granting plaintiffs their expert witness fees and prejudgment interest. D. Award of Costs and Prejudgment Interest ***

On April 21, 1988, plaintiffs made a joint offer to compromise, for $250,000, pursuant to Code of Civil Procedure section 998. The offer was rejected. On February 3, 1989, plaintiffs made a second joint offer to compromise, this time for $150,000. The second offer was also rejected. At trial, plaintiffs collectively obtained a more favorable judgment than the second offer. 4 The trial court awarded plaintiffs their expert witness costs under Code of Civil Procedure section 998 5 and prejudgment interest from the date of the second offer under Civil Code section 3291. 6

Beverly contends that plaintiffs' joint offer to compromise was invalid because it did not permit Beverly to determine whether each individual plaintiff in fact obtained a more favorable judgment than her offer. We agree.

In Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d 388, 254 Cal.Rptr. 840, the court held that a joint offer to compromise, tendered by three plaintiffs, precluded the court from being able to determine "whether each plaintiff received a judgment more favorable than the offer." (Id., at p. 409, 254 Cal.Rptr. 840, emphasis in original.) The court relied on a case, Randles v. Lowry (1970) 4 Cal.App.3d 68, 74, 84 Cal.Rptr. 321, in which a defendant made a single offer of $2,330 to three plaintiffs (a husband, wife, and child). The Randles court held that without a designation as to how the amount should be divided among the three plaintiffs, it was impossible to say that any one plaintiff received a less favorable judgment than he or she would have received under the offer.

In Hurlbut, the court found this reasoning persuasive in the case of a joint offer by numerous plaintiffs to a single defendant. The court stated: "To consider plaintiffs' joint settlement offer as valid would deprive defendant of the opportunity to evaluate the likelihood of each party receiving a more favorable verdict at trial. Such an offer makes it impossible to make such a determination after verdict. We hold that the joint settlement offer presented by plaintiffs was not a valid settlement offer under Code of Civil Procedure section 998 and the order after judgment directing defendant to pay to plaintiffs certain expert witness fees must be reversed." (207 Cal.App.3d at p. 410, 254 Cal.Rptr. 840.)

Finally, the Hurlbut court distinguished those cases "sanctioning a plaintiff's joint offer to multiple defendants where they are held to be jointly and severally liable" because in those cases "plaintiffs' interests were not identical. There was no single, indivisible injury to evaluate for settlement purposes." (Hurlbut v. Sonora Community Hospital, supra, 207 Cal.App.3d at p. 410, 254 Cal.Rptr. 840.)

Plaintiffs respond that in this wrongful death action, they did suffer a single, indivisible injury because " 'the cause of action for wrongful death has been consistently characterized as "a joint one, a single one and an indivisible one" ...' (Canavin v. Pacific Southwest Airlines [1983] 148 Cal.App.3d 529 ...; Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 694 [36 Cal.Rptr. 321, 388 P.2d 353] )...." (Yates v. Pollock, 194 Cal.App.3d 195, 200-201, 239 Cal.Rptr. 383.)

Yates, however, did not deal with the situation of whether wrongful death plaintiffs have a single, indivisible interest for purposes of making a settlement offer under Code of Civil Procedure section 998. Indeed, the two cases the Yates court cites state unequivocally that the wrongful death statute, Code of Civil Procedure section 377, is a procedural statute that does not create a joint cause of action but rather merely requires joinder of the causes. (Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 530, 196 Cal.Rptr. 82; Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 692, 36 Cal.Rptr. 321, 388 P.2d 353.) In Cross, the Supreme Court explained: "In stating that an action for wrongful death is joint, it is meant that all heirs should join or be joined in the action and that a single verdict should be rendered for all recoverable damages; when it is said that the action is single, it is meant that only one action for wrongful death may be brought whether, in fact it is instituted by all or only one of the heirs, or by the personal representative of the decedent as statutory trustee for the heirs; and when it is said that the action is indivisible, it is meant that there cannot be a series of suits by heirs against the tortfeasor for their individual damages. [Citation.]" (60 Cal.2d at p. 694, 36 Cal.Rptr. 321, 388 P.2d 353.)

The Cross court went on to explain that "[a]lthough recovery under section 377 is in the form of a 'lump sum,' the amount is determined in accordance with the various heirs' separate interests in the deceased's life and the loss suffered by each by reason of the death, ..." and therefore "each heir should be regarded as having a personal and separate cause of action." (60 Cal.2d at p. 692, 36 Cal.Rptr. 321, 388 P.2d 353.) "[T]he interests of the heirs are separate rather than joint." (Ibid.)

In the instant case, the joint offer to compromise did not afford Beverly the opportunity to evaluate the separate and distinct loss suffered by each plaintiff as a result of the death of Stephanie Hennes. Without an apportionment of the damages among the four plaintiffs, it is impossible to say that any one of them received a judgment more favorable than she would have received under the offer. (Hurlbut v. Sonora Community Hospital, supra, 207 Cal.App.3d at p. 410, 254 Cal.Rptr. 840.) Accordingly, the award of costs for expert witness fees must be reversed. In addition, because an award of prejudgment interest under Civil Code section 3291 depends upon plaintiffs receiving a more favorable judgment pursuant to Code of Civil Procedure section 998, it follows that the trial court also erred in its award of prejudgment interest.

CROSS APPEAL

The cross-appeal raises a single issue: whether in a medical malpractice action noneconomic damages should be reduced pursuant to Civil Code section 3333.2 (the MICRA cap) before or after noneconomic damages are reduced pursuant to Civil Code section 1431.1 et seq. (Proposition 51) to reflect a defendant's several, rather than joint, liability. The trial court first applied the MICRA cap, reducing the jury's $400,000 award for noneconomic damages to $250,000, and then applied Proposition 51, reducing it an additional 10 percent based on the percentage of negligence attributed to Dr. Schulkin. Plaintiffs contend this was error. They claim that the court should have factored in Dr. Schulkin's negligence before reducing the award to the MICRA cap. They contend that the recent opinions in McAdory v. Rogers (1989) 215 Cal.App.3d 1273, 264 Cal.Rptr. 71 and Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 273 Cal.Rptr. 231 compel this result. We disagree.

Neither McAdory nor Atkins dealt with the interplay between Proposition 51 and the MICRA cap. Rather, they dealt with the interrelationship between comparative negligence principles and MICRA. In McAdory, the court held the jury's verdict should be reduced to reflect the plaintiff's comparative fault before noneconomic damages were reduced to $250,000. The court reasoned that because of the MICRA cap, the plaintiff was "already recovering an amount less than the jury determined he or she was damaged by the tortious conduct of others.... No purpose would be served by further reducing that plaintiff's award." (McAdory v. Rogers, supra, 215 Cal.App.3d at p. 1279, 264 Cal.Rptr. 71.) Atkins followed McAdory, holding that the trial court properly applied the jury's comparative fault finding before reducing the noneconomic damages under section 3333.2.

Proposition 51, on the...

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