Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and orders of the Superior Court of Los Angeles County, No. BC339336, Victor E. Chavez, Judge.
Law Offices of Michael D. McLachlan and Michael D. McLachlan for Appellant.
Michael Maguire & Associates and Kathryn Albarian for Respondent.
ZELON, J.
Plaintiff Robert Feldman appeals from a judgment in which he alleges jury misconduct and from two post-judgment orders awarding costs to Defendant Fanny Campbell under Code of Civil Procedure section 998 . We affirm.
All further section references are to the Code of Civil Procedure.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 11, 2004, Campbell’s vehicle collided with Feldman’s vehicle on the Santa Monica Freeway. Feldman filed suit against Campbell on September 2, 2005.
On May 16, 2006, Campbell served a section 998 offer to compromise. The offer proposed payment of $50,000 in exchange for dismissal without prejudice, as well as a release of “FANNY CAMPBELL, her subsidiaries, affiliates, divisions, antecedents, successors, officers, directors, assigns, agents, servants, stockholders, general partners, limited partners, employees, representatives and successors in interest, and all attorneys of any of them” for “any and all claims, demands, actions, causes of actions or suits of any kind or nature whatsoever and particularly on accounts of injuries, known or unknown, both to person or property which have resulted or may in the future develop from an accident which occurred on or about March 11, 2004, and which are the subject of Los Angeles Superior Court Case No. BC339336.” The case was tried to a jury in July 2006. The jury awarded Feldman $23,264.85 for past economic and noneconomic losses.
Having previously served a section 998 offer greater than the amount of the verdict, Campbell filed a Memorandum of Costs for costs incurred following the section 998 offer. Feldman, as the prevailing party, also filed a Memorandum of Costs. Both parties moved to tax the other’s costs. Relying on section 998, the trial court granted Campbell’s motion to tax costs but denied Feldman’s motion to tax costs.
On September 13 and 14, 2006, Feldman filed two ex parte applications for the jurors’ contact information. His first application did not state a reason for the request for jurors’ contact information. However, in his second application, Feldman alleged that, after trial, he received an anonymous letter recommending alternative, non-surgical medical treatment from someone purporting to be a juror in the case. He also alleged that an anonymous female left a phone message for Feldman’s counsel, indicating that the alternative treatment was discussed during jury deliberations. Feldman attached the declaration of his attorney, Michael McLachlan, which referred both to the letter and to the voicemail. After both of Feldman’s requests for the jurors’ contact information were denied, Feldman filed a Motion for Partial New Trial. This motion was also denied. Feldman appealed.
DISCUSSION
This case poses two separate issues. First, was the trial court within its discretion in finding that Campbell’s offer to compromise was a valid section 998 offer? Second, did the trial court abuse its discretion by denying Feldman’s application for juror contact information?
I. The Trial Court Properly Awarded Post-Offer Costs to Campbell.
Section 998 provides: “Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. . . . [¶] . . . [¶] If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and shall pay the defendant’s costs from the time of the offer.”
“In construing section 998, we review the trial court’s decision de novo. [Citation.] With respect to the validity, or reasonableness, of a section 998 offer, we review the trial court’s determination for an abuse of discretion. [Citation.]” (Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co. (1999) 73 Cal.App.4th 324, 329.)
The policy behind section 998 is to “encourage settlement by providing a strong financial disincentive to a party--whether it be a plaintiff or a defendant--who fails to achieve a better result than that party could have achieved by accepting his or her opponent’s settlement offer.” (Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 804.) Thus, section 998 penalizes a plaintiff for continuing to litigate in spite of having received what was in retrospect a reasonable offer. (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 450.) “The harsh result of section 998 is that the plaintiff not only loses the right to recover his or her costs, but must also pay the defendant’s postoffer costs.” (Ibid.)
A. The section 998 offer was not invalid because of the release of third parties.
Feldman argues that Campbell’s section 998 offer requirement that Feldman release “FANNY CAMPBELL, her subsidiaries, affiliates, divisions, antecedents, successors, officers, directors, assigns, agents, servants, stockholders, general partners, limited partners, employees, representatives and successors in interest, and all attorneys” from liability disqualifies the offer from the cost-shifting provisions of section 998. Feldman relies on this court’s decision in Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692 to assert that inclusion of third parties in the language of the offer automatically disqualifies the offer from section 998’s cost –shifting provisions. Feldman misinterprets the holding in Valentino.
In Valentino, this court found the defendant’s settlement offer, which required a release of the defendant’s insurance carrier and attorneys from liability related to the claim, insufficient to shift costs under section 998. (Valentino v. Elliott Sav-On Gas, Inc., supra, 201 Cal.App.3d at p. 701.) That condition in the settlement offer required the plaintiff to forego lawsuits other than the case then at issue, including a potential claim for bad faith against the insurance carrier. (Id. at 698.)
Here, in contrast, the settlement offer did not require Feldman to forego any claims outside the scope of the current litigation. Instead, the facts here bear more similarity to the facts in Goodste in v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 905. In Goodste in, this court held that a section 998 offer which applied only “in full settlement of [the pending] action” could not reasonably be construed to require the surrender of other causes of action. (Id. at 907.) Because the general release provided for in the offer pertained only to the current litigation, Valentino did not apply. (Id. at 908.)
Here, too, the settlement offer specified that only claims “which are the subject of Los Angeles Superior Court Case No. BC339336” would be released. Because the release was specifically limited to claims embodied in the current litigation, the inclusion of third parties in the release did not render the section 998 offer invalid.
B. The section 998 offer was not invalid on finality grounds.
Feldman further argues that the section 998 offer was invalid because its language lacked finality. In addition to the release discussed above, Campbell’s settlement offer required Feldman to agree to a dismissal without prejudice of the complaint. Feldman argues that a dismissal without prejudice, as opposed to a dismissal with prejudice, does not satisfy the “judgment” requirement of section 998. Feldman’s argument lacks merit.
A dismissal without prejudice does not carry the same preclusive effect as a dismissal with prejudice. (Gagnon Co., Inc. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 455.) However, a dismissal without prejudice “has the effect of a final judgment in favor of the defendant, for it terminates the action and concludes the rights of the parties in that particular action. . . .” (Ibid.) As we pointed out in Goodste in v. Bank of San Pedro, supra, 27 Cal.App.4th at p. 905, “‘Judgment’ is defined in Code of Civil Procedure section 577 as ‘the final determination of the rights of the parties in an action or proceeding.’” Because a dismissal without prejudice terminates the rights of the parties in this action, such a dismissal satisfies the judgment requirement of section 998. Therefore, Campbell’s section 998 offer was not invalidated by the request for dismissal without prejudice.
Feldman has failed to establish that the trial court abused its discretion in finding the section 998 offer valid. We affirm the court’s award of post-offer costs to Campbell.
II. The Trial Court Properly Denied Feldman Access To The Jurors’ Contact Information
A. Appeal ability
A denial of a motion for new trial is not separately appeal able but may be reviewed on appeal from the judgment. (Hughes v. De Mund (1924) 195 Cal. 242, 247.) Campbell mistakenly argues that this court lacks jurisdiction to review the trial court’s rulings on Feldman’s applications for jurors’ contact information because Feldman appealed from “the Judgment entered on August 31, 2006” rather than from the orders themselves. However, “[a] notice of appeal shall be liberally construed in favor of its sufficiency.” (Cal. Rules of Court, rule 8.100(a)(2).) Thus, a notice of appeal “can be interpreted to apply to an existing appeal able order or judgment, if no prejudice would accrue to the respondent.” (Vibert v. Berger (1966) 64 Cal.2d 65, 67-68.) Here, Feldman’s motion for new trial included argument that the trial court’s denial of Feldman’s request for juror information constituted an irregularity in the proceedings. Because the new trial motion is review able in Feldman’s appeal from the judgment, the orders denying Feldman’s requests for juror information related to that motion may also be reviewed. Furthermore, Campbell has fully briefed the issues on the merits.
B. The trial court acted within its discretion by denying Feldman access to the jurors’ contact information.
We review the trial court’s ruling on Feldman’s application for the jurors’ contact information for an abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
Section 237, subdivision (a)(1) states: “The names of qualified jurors drawn from the qualified juror list for the superior court shall be made available to the public upon request unless the court determines that a compelling interest, as defined in subdivision (b), requires that this information should be kept confidential or its use limited in whole or in part.” Feldman requested information beyond the juror’s names; specifically his ex parte motions requested telephone numbers for the jurors.
Section 237, subdivision (b) pertains to access to juror information after conviction in criminal matters.
Feldman argues that the trial court should have released that contact information to him in the absence of any showing that there was a compelling interest in withholding that information. He relies on no authority for that position. Even if the statute could be read to make available such information, however, the statutory enactment does not foreclose the exercise of the inherent authority of the trial court to protect the privacy of the jurors. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1094-1095.)
In Townsel, the Supreme Court acknowledged that “the losing party to a lawsuit or criminal prosecution will initiate post trial contact with the jurors to discuss the case in an effort to discover whether any juror committed misconduct.” (20 Cal.4th 1084 at p. 1091.) In such a case, counsel may ask the court to release personal contact information, as Feldman did in this case. However, “‘strong public policies protect discharged jurors from improperly intrusive conduct in all cases.’ [Citations.] The uncontrolled invasion of juror privacy following completion of service on a jury is, moreover, a substantial threat to the administration of justice.” (Id. at p. 1092.) The trial court thus may exercise its discretion to protect the privacy of the jurors, balancing the need shown against appropriate methods of providing information.
In Feldman’s applications for juror contact information, Feldman made no showing of any efforts to contact the jurors through other means. Later in the proceedings, Feldman did submit a declaration of his attorney, Michael McLachlan, asserting that McLachlan had attempted to contact the jurors by other means, but either could not locate or did not receive responses from the jurors. The showing of necessity for the contact was equivocal, consisting of a vague description of a voicemail message and a letter that did not describe or relate to any discussions in the jury room. In response to this showing, the trial court did not refuse the request, but instead contacted the jurors by letter, inviting them to contact counsel if they wished to speak about the trial; eight of the twelve jurors responded to the court’s letter indicating they did not wish to be interviewed.
This exercise of the inherent power of the court was not improper. The trial court balanced the showing of need against the rights of the jurors to privacy, and attempted to devise a mechanism that would afford counsel an opportunity to speak with those jurors who wished to be interviewed without subjecting jurors to unwanted contacts. On this record, this was not an abuse of discretion. Thus, there was no irregularity in the trial court proceedings.
DISPOSITION
The judgment and the post-judgment orders denying Feldman’s Motion to Tax Costs and granting Campbell’s Motion to Tax Costs are affirmed. Campbell is awarded her costs on appeal.
We concur: PERLUSS, P. J. WOODS, J.