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Wong v. 396 Investment Co.5/17/2005
the settlements [in the Phase I trial] was arbitrary, whimsical or capricious. [Citation.]" (Barajas v. USA Petroleum Corp., supra, 184 Cal.App.3d at p. 989.)
(c) Phase II Trial
Having been unsuccessful in its effort to have the sliding scale settlement agreements disclosed to the jury in the Phase I trial, Anaheim gave it another try in the Phase II trial. In a Phase II pretrial motion, Anaheim filed a second request for disclosure. In response, the court on February 1, 2002, entered a minute order stating: "The court suggests the parties prepare a stipulated statement to be given the jury regarding this issue and submit the same to the court on or before February 11, 2002, 11:00 AM. In the absence of such stipulation all interested parties shall submit their respective versions by said date and time."
396 then filed its first amended Phase II jury instruction request, which included its special instruction No. 9, pertaining to the disclosure of the sliding scale settlement agreements. Anaheim filed an amended jury instruction request as well. Therein Anaheim requested BAJI 15.03.1 as its instruction No. 39, having to do with the disclosure issue. Anaheim later filed an amended and supplemental jury instruction request, in which it withdrew its requested instruction No. 39. On March 13, 2002, during the discussions between the trial judge and the parties concerning the jury instructions, 396 withdrew its special instruction No. 9, without objection by Anaheim.
During those discussions, the court also addressed with the parties a requested instruction, a modified BAJI 14.64, that pertained to the settlement agreements and indicated that the court, not the jury, would perform the offset. Anaheim agreed to the instruction. The jury instruction ultimately read to the jury provided: "In this case the plaintiffs have reached various settlements with 396 Investment Company. The amounts of these settlements have not been disclosed to you. You must not consider these settlements in determining the amount of damages the plaintiffs suffered. You shall award damages to the plaintiffs for the same amount that you would have awarded as if no settlements had been made. The court will later make the appropriate reductions to the amount of your verdict based upon the settlements."
As the foregoing shows, Anaheim withdrew its requested jury instruction and 396 withdrew its requested jury instruction, without the objection of Anaheim. We cannot see how the trial court erred in omitting to give requested instructions that were withdrawn. Anaheim had an opportunity to press for an instruction to its liking and let the opportunity pass. Moreover, the court did inform the jury that the plaintiffs had entered into settlement agreements with 396, and Anaheim agreed to the instruction. "It is the appellant's burden to demonstrate the existence of reversible error. [Citation.]" (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 766.) With respect to this point, Anaheim has failed to meet its burden.
I. EMOTIONAL DISTRESS DAMAGES
(1) Introduction
Anaheim contends that the court erred in awarding emotional distress damages in a property damage case and in admitting evidence of emotional distress damages. While these issues are not of concern to 396, other respondents on appeal challenge Anaheim's assertions.
(2) Analysis
Anaheim argues that Erlich v. Menezes (1999) 21 Cal.4th 543 (Erlich), precludes an award of emotional distress damages in this case. In Erlich, husband and wife homeowners entered into a contract with a general contractor to build a house. (Id. at p. 548.) The home leaked extensively
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