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Saakyan v. Modern Auto10/31/2002
nts are more innocuous than those made in Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, at pages 741-742 where no misconduct was found.
E. No prejudice.
Although "a presumption of prejudice arises from any juror misconduct . . . ." which may be rebutted by proof that no prejudice actually resulted (English v. Lin, supra, 26 Cal.App.4th at p. 1364), the presumption only arises once misconduct has been shown. "Obviously, prejudice is not presumed until misconduct has been shown. . . . When there is no misconduct, there cannot be any prejudice." (People v. Cumpian, supra, 1 Cal.App.4th at p. 316.) As we have concluded no misconduct occurred, we need not reach the question of prejudice.
II. Plaintiffs' cross-appeal.
A. The trial court erred as a matter of law in ruling plaintiffs' rights under section 998 were extinguished by the first judgment.
1. Facts.
Plaintiffs made their statutory offers to compromise in February 1994, before the first trial. Saakyan offered to have judgment entered "in the total amount of $820,000.00." The same document included an offer by Paronyan "in the total amount of $115,000.00." The offers were not accepted. No other offer was made.
The first trial resulted in a special verdict for defendant. Judgment thereon was entered in January 1995. Thereafter, the court granted plaintiffs' motion for a new trial based on serious juror misconduct and ordered the judgment on special verdict be vacated and set aside. In an earlier, unpublished opinion, this Court affirmed the trial court's order for a new trial.
Following the second trial, as noted, the jury returned a special verdict, this time in favor of plaintiffs, awarding Saakyan $12,233,744 and Paronyan $566,928.32 in damages. Plaintiffs' memorandum of costs ensued, requesting prejudgment interest in the amount of $7,976,420.00 for Saakyan, and $369,667.78 for Paronyan, as of the February 1994 offers (Civ. Code, § 3291), together with approximately $204,000.00 in expert witness fees (§ 998, subd. (d)).
Defendant opposed the motion for prejudgment interest and moved to tax costs. As one ground for its opposition, defendant argued the entry of judgment in favor of defendant after the first trial extinguished any rights plaintiffs might have acquired pursuant to section 998.
Observing that "so many things occurred" in this case, and that it felt "strongly" it "couldn't in good faith grant the motion on prejudgment interest," the trial court struck plaintiffs' request for prejudgment interest (Civ. Code, § 3291) and denied the request for expert witness fees (§ 998, subd. (d)). The trial court explained: "1) The Code of Civil Procedure section 998 offer filed by plaintiff in 1994 is extinguished due to the verdict for the defendant in the first trial. [ ] 2) There was not a Code of Civil Procedure section 998 offer filed in the second trial." The court taxed plaintiffs' requested costs and denied them prejudgment interest. Plaintiffs filed their timely appeal.
2. Law.
Pursuant to section 998, subdivision (d), if the plaintiff's statutory offer to compromise is not accepted and the defendant fails to obtain a more favorable judgment, the prevailing plaintiff becomes eligible to seek reasonable and actually incurred expert witness fees and costs.
Additionally, in a personal injury action, if the conditions of Civil Code section 3291 are met, the plaintiff has the right to obtain prejudgment interest. Specifically, under Civil Code section 3291, if the defendant does not accept the plaintiff's offer pursuant to section 998, and the plaintiff o
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