Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC331637 Ricardo A. Torres, Judge.
Esner, Chang & Ellis, Stuart B. Esner and Andrew N. Chang for Plaintiff and Appellant.
Knapp, Petersen & Clarke, Maria A. Grover, Stephen C. Pasarow and Robert D. Brugge for Defendants and Respondents.
CHANEY, J.
Plaintiff/Appellant Yana Henriks was involved in three different automobile accidents in a little less than 18 months—May 2004, July 2004, and September 2005. Appellant filed one complaint against the parties involved in the May 2004 and July 2004 accidents. She sued Pedro Gonzalez (Gonzalez), who is not a party to this appeal, in connection with the May accident, and she sued Defendants/Respondents Blake Kobashigawa (Kobashigawa), who was driving the car involved in the July accident, and his father, Don Kobashigawa, the owner of the car (collectively Respondents).
Following a 10-day trial, the jury returned a verdict in favor of Gonzalez, finding that Gonzalez was not negligent. As to Respondents, the jury found that Kobashigawa was negligent, but that his negligence was not a substantial factor in causing harm to Appellant.
Appellant contends on appeal that (1) the jury’s findings are not supported by the evidence; (2) the trial court erred in refusing to give a requested jury instruction; (3) the trial court abused its discretion in denying her motion to order separate trials; (4) Respondents’ counsel engaged in misconduct. She also challenges the trial court’s award of costs, including expert witness fees, to Respondents. We will affirm in all respects.
BACKGROUND
I. Factual Background
A. May 2004 Accident
On May 10, 2004, Appellant was traveling on the 5 freeway in Los Angeles at about 40 miles per hour, when she hit the car in front of her, which had stopped. Gonzalez was in a car behind Appellant, traveling at about 40 miles per hour before the accident. Gonzalez tried to swerve to avoid hitting Appellant, but he hit the passenger side of Appellant’s car.
Appellant experienced shortness of breath and pain in her chest and the right side of her ribs, so she was taken to the hospital in an ambulance. She was examined and then released after two hours. Two days later, Appellant was still experiencing generalized pain, so she consulted Dr. Harot Raffi Balian, a specialist in physical medicine rehabilitation. Dr. Balian diagnosed Appellant with a cervical sprain, bilateral shoulder sprain, a contusion to her chest, and “posttraumatic cephalgia,” or headaches. Appellant saw Dr. Balian three or four more times, but she received physical therapy and acupuncture treatments several times a week. Dr. Balian also referred Appellant to a neurosurgeon, who thought that Appellant suffered from myofascia ligament injury, consistent with a whiplash injury, and that, as of July 6, 2004, Appellant’s symptoms were getting worse. Dr. Balian testified that, as of a July 22, 2004, examination, Appellant’s recovery was progressing satisfactorily, but he wanted her to continue receiving physical therapy and not to return to work yet.
B. July 2004 Accident
On July 22, 2004, Appellant was involved in a car accident on the 101 freeway. Kobashigawa was looking at his cell phone when he rear-ended Appellant’s car at a speed of about 17 to 20 miles per hour. Appellant testified that she had come to a stop 30 to 50 seconds before being struck by Kobashigawa. However, the occupants of the car in front of Appellant on the freeway told the police, and they both testified at trial and in depositions, that they had stopped their car because of an incident in front of them; then, after their car stopped, they were hit from behind two times within a few seconds—that is, they were rear-ended by Appellant before Appellant was hit by Kobashigawa. Both Appellant’s and Respondents’ cars were totaled.
Appellant saw Dr. Balian on July 24, 2004, complaining of neck and shoulder pain, chest pain, headaches, and an abrasion on her chest. Dr. Balian diagnosed Appellant with “cervical upper extension flexion injury, whiplash, chest contusion, right shoulder sprain, left shoulder contusion with abrasions, thoracic spine sprain, posttraumatic cephalgia, and anxiety.”
C. September 2005 Accident
On September 9, 2005, Appellant was in a side swipe accident that was severe enough to cause the air bags of the other vehicle to be deployed. Appellant’s car sustained about $20,000 worth of damage. According to her deposition testimony, the September accident exacerbated the symptoms Appellant already was experiencing. Appellant’s medical records indicated that she was injured in the September accident.
II. Procedural Background
A. Pre-Trial
In April 2005, Appellant filed a complaint against Gonzalez and Respondents. The trial court ordered Appellant to file points and authorities to explain why she filed a single complaint as to both accidents. Appellant explained that she “was involved in two car accidents which resulted in a single injury for which one jury must apportion responsibility and causation and for which common issues of fact and law exit [sic] pertaining to the issues of causation and damages.” In her memorandum of points and authorities, Appellant stated that she could obtain inconsistent jury results if the cases were filed separately, and that the two accidents were “inextricably intertwined with common issues of fact and law pertaining to the issues of causation and damages.” Thus, she contended that judicial economy would be served by trying the cases together.
In October 2006, Appellant filed a motion to order separate trials, arguing now that “trying both accidents together in the same trial, in front of the same jury,” would prejudice her and prevent her from receiving a fair trial.” Contrary to her prior position, Appellant contended that the issues and claims were “so different” that “separate trials will promote trial convenience and economy.” The court denied Appellant’s motion.
B. Trial
A jury trial was held in 2007, at which Appellant and Respondents presented numerous witnesses, including accident reconstruction experts and medical experts who testified about the accidents and Appellant’s medical conditions.
Appellant testified, and she presented testimony by John Howard, her mentor at work; Gonzalez; Luke Ferguson, the California Highway Patrol officer who responded to the May accident; and Kevin Sean Henry, an investigator hired by Respondents’ counsel. Appellant presented medical testimony by Dr. Sheldon Jordan, Dr. James Collins, Dr. Ernestina Saxton, and Dr. Balian. Appellant presented expert testimony about her economic damages by Richard Andersen, a vocational counselor; David Fractor, an economist; and James Donell. Appellant presented expert testimony about the accidents by David King, an accident reconstructionist, and John Brault, an expert in injury biomechanics.
Kobashigawa testified about the July accident. Respondents presented testimony about the accident by Evan Weiss and Michael Shuman, the occupants of the car in front of Appellant’s car in the July accident. Respondents presented medical testimony by Dr. Michael Weiner, a neurologist who conducted a medical examination of Appellant and reviewed her medical records, and Dr. Stephen Kay, an orthopedic surgeon who also examined Appellant and reviewed her medical records. Respondents presented expert testimony about the accident by Jon Landerville, an accident reconstructionist, and Peter Burkhard, an accident reconstructionist and biomechanical engineer. Respondents also presented testimony by German Lopez, a private investigator who conducted surveillance of Appellant and took videos of her engaged in various activities, such as lifting groceries; and testimony by James Donnell, who testified about work that Appellant may have performed in 2005.
There was conflicting testimony about the extent of Appellant’s injuries, the extent of her recovery after both the May and July accidents, and whether or not Appellant was able to return to work. For example, Dr. Balian testified that the diagnosis that Appellant suffered from thoracic outlet syndrome was made only after the July accident, although he acknowledged that there is not a clear diagnostic test to make the diagnosis. However, Brault, Appellant’s expert witness in injury biomechanics, testified that the lateral impact of the May accident would cause “left thoracic outlet syndrome involving the scalene muscles, because your body tends to go toward the point of an impact.” In addition, Dr. Weiner, one of Respondents’ medical experts, questioned the thoracic outlet syndrome diagnosis, and, based on his examination of Appellant and review of records, he opined that Appellant was exaggerating her symptoms.
“Thoracic outlet syndrome is a group of disorders that occur when the blood vessels or nerves in the thoracic outlet—the space between your collarbone (clavicle) and your first rib—become compressed. This can cause pain in your shoulders and neck and numbness in your fingers.” Mayo Clinic definition, found at http://www.mayoclinic.com/health/thoracic-outlet-syndrome/DS00800 (as of Jan. 21, 2010).
There also was conflicting testimony about the accidents, including whether Appellant rear-ended the car in front of her before Kobashigawa rear-ended Appellant’s car. For example, Appellant’s expert testified that it was unlikely, but possible, that Appellant had struck the car in front of her before Kobashigawa hit her. Appellant testified that she had come to a stop about 30 to 50 seconds before being struck by Kobashigawa. Weiss and Shuman testified that, after stopping their car, they were hit twice, with the impacts coming within a few seconds of each other. Burkhard, Respondents’ expert, testified that it was very unlikely that Kobashigawa rear-ended Appellant twice. Burkhard stated that the police report and deposition testimony indicated that “there were two frontal impacts to [Appellant’s] vehicle and only one rear end impact to her vehicle,” which “strongly indicate[d]” that she hit Weiss and Shuman before Kobashigawa hit her.
Following a ten-day trial, the jury returned a special verdict in favor of Gonzalez, finding that Gonzalez was not negligent in the May accident. As to Respondents, the jury returned a special verdict finding that Kobashigawa was negligent, but that his negligence was not a substantial factor in causing harm to Appellant.
C. Post-Trial
Following the jury verdict, Respondents filed a memorandum of costs, seeking $79,107.37, which included $48,360 in expert witness fees. The trial court entered judgment on the jury verdict in favor of Gonzalez and Respondents. In the judgment, the court ordered that Respondents recover their costs as requested.
Appellant filed a motion to strike costs or, in the alternative, to tax costs. Appellant argued that Respondents were not entitled to expert witness fees because they failed to serve Appellant with a statutory offer to compromise, as required by Code of Civil Procedure section 998, subdivision (c)(1).
Appellant also filed a motion for new trial. The court denied the new trial motion, stating that the evidence supported the jury’s findings. Appellant filed a notice of appeal.
The court found that a valid statutory offer to compromise had been served on Appellant, taxed Respondents’ costs by $1000, and otherwise affirmed the award of costs. Appellant filed a motion for reconsideration of her motion to tax costs, in which she argued that the statutory offer to compromise was made in bad faith. As relevant to this appeal, Appellant argued that, at the time Respondents made the offer to compromise, they concealed the fact that they had a surveillance video of Appellant, allegedly showing that Appellant was not as injured as she claimed to be. Appellant contended that the existence of the video should have been made known to her in order for her to evaluate the offer to compromise and that Respondents’ failure to inform her of the video’s existence indicated that the offer was not made in good faith.
The trial court denied Appellant’s motion to reconsider. Appellant filed a notice of appeal from the orders denying her motion to tax costs and her motion to reconsider.
DISCUSSION
Appellant raises several challenges to the judgment. First, Appellant contends that the evidence is not sufficient to support the jury’s finding that Kobashigawa’s negligence was not a substantial factor in causing harm to Appellant. Appellant’s second contention is that the trial court erred in refusing to give an instruction on alternative causation requested by Appellant. Third, Appellant challenges the trial court’s failure to order separate trials. Fourth, Appellant contends that Respondents’ counsel engaged in misconduct. Finally, Appellant challenges the trial court’s denial of her motion to strike costs.
I. Sufficiency of the Evidence
On appeal following a jury trial, “we view the evidence, which was conflicting and vigorously contested, in a light most favorable to [the prevailing parties], resolving all conflicts in their favor.” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787.) “When faced with a challenge to the sufficiency of the evidence to support a judgment, an appellate court ‘indulge[s] in every reasonable inference to uphold the verdict if possible and defer[s] to the [trier of fact’s] assessment of the credibility of the witnesses. [Citation.] “[T]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the [trier of fact].” [Citation.]’” (Warren v. Merrill (2006) 143 Cal.App.4th 96, 109.)
The jury heard copious amounts of evidence from both sides regarding the causes of the accidents, the results of the accidents, and Appellant’s medical conditions. In reaching its findings that Kobashigawa was negligent but that his negligence was not a substantial factor in causing harm to Appellant, the jury “implicitly rejected” Appellant’s evidence and arguments. (Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 454 [102 Cal.Rptr.3d 32, 41].) Appellant’s “contentions on appeal essentially ask this court to reweigh that evidence and reconsider those arguments. That is not our function. Rather, we determine whether, after resolving all conflicts and drawing all inferences most favorably to the prevailing party, there is substantial evidence to support the jury’s verdict.” (Ibid.)
Even though the jury found that Kobashigawa was negligent in rear-ending Appellant’s vehicle, there was evidence presented that Appellant’s harm was caused by her May accident or her September accident, by her rear-ending the car in front of her before Kobashigawa hit her, or that Appellant might have been exaggerating her symptoms and actually did not suffer so much harm that she was unable to work. “[W]hen two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the jury. [Citations.]” (Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 696 (Fibreboard).) We decline Appellant’s request to reweigh the evidence and reconsider the arguments; these are functions that belong to the jury. The jury’s verdict is supported by substantial evidence.
The issue of separate trials is addressed out of order from the order in which it is addressed in Appellant’s brief.
Appellant contends that the trial court abused its discretion in denying her motion to order separate trials. We reject Appellant’s contention.
Code of Civil Procedure section 1048 provides that, “[w]hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Code Civ. Proc., § 1048, subd. (a).) Alternatively, “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action....” (Code Civ. Proc., § 1048, subd. (b).) The decision to consolidate actions involving common questions of law or fact is within the discretion of the trial court. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.) “The trial court’s decision will not be disturbed on appeal absent a clear showing of abuse of discretion. [Citations.]” (Id. at pp. 978-979.)
Appellant filed one complaint against both Gonzalez and Respondents. She herself argued to the court that the two separate accidents involved common issues of fact and law and that the accidents “resulted in a single injury for which one jury must apportion responsibility and causation.” She also contended that it would be prejudicial to her case if there were two separate trials.
Appellant’s argument rests on her claim that the trial court erred in failing to give the jury the alternative liability instruction that she requested—an issue addressed below. Although there were two separate accidents, there can be no question that there were common issues of fact and law as to the causes of Appellant’s injuries and the extent of her injuries and recovery. The court’s reliance on Appellant’s prior representations that the accidents presented common issues of fact and law was not an abuse of discretion. Appellant has failed to make a clear showing that the trial court’s denial of her motion to order separate trials constituted an abuse of discretion.
III. Jury Instruction
Appellant relies on Fibreboard, supra, 227 Cal.App.2d 675, to argue that the trial court erred in failing to instruct the jury that, if it found Kobashigawa negligent, the burden shifted to Respondents to establish that Kobashigawa’s negligence was not a substantial factor in causing harm to Appellant. We disagree with Appellant.
In Fibreboard, an employer, Fibreboard, sued a union for damages allegedly caused by the establishment of a picket line by the union. The jury returned a verdict in favor of Fibreboard and awarded damages. On appeal, the union contended that there was no causal connection between the damages suffered by Fibreboard and any tortious conduct connected with the picket line. The court rejected the union’s contention, finding that it was reasonable for the jury to infer that Fibreboard’s employees were afraid to cross the picket line because of threats of violence by the union, thus causing Fibreboard to lose sales and incur damages. (Fibreboard, supra, 227 Cal.App.2d at p. 697.)
The portion of Fibreboard relied upon by Appellant is its discussion of damages. The defendants in Fibreboard argued that the employer had failed to meet its burden of proof because the damages were divisible between the tortious conduct of the union and the employees’ independent refusal to cross the picket line. The court, however, stated that it was reasonable for the jury to infer that the employees refused to work solely because of the tortious conduct of the union. (Fibreboard, supra, 227 Cal.App.2d at pp. 703-704.)
Respondents acknowledge that, “even though persons are not acting in concert, if the result produced by their acts is indivisible, each person is held liable for the whole.” (Fibreboard, supra, 227 Cal.App.2d at p. 705.) The crucial aspect of the discussion that Appellant ignores, however, is that the plaintiff first bears the burden of establishing that the defendant’s actions caused damage to the plaintiff. The court stated, for example, that “one who contributes to damage cannot escape liability because the proportionate contribution may not be accurately measured.” (Id. at p. 704, italics added.) That is, a defendant is liable “only for such proportion of the total damage as was caused by his own acts.” (Id. at p. 705, italics added.) Here, the jury found that Kobashigawa’s negligence was not a substantial factor in causing harm to Appellant. Therefore, there was no causation. “‘Whether a defendant’s conduct actually caused an injury is a question of fact [citation] that is ordinarily for the jury [citation].’” (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1029.)
Both parties presented numerous experts who testified about the accidents and Appellant’s medical condition. “‘The rule is established that the plaintiff has the burden of proving, with reasonable certainty, the damages actually sustained by him as a result of the defendant’s wrongful act, and the extent of such damages must be proved as a fact.’ [Citations.]” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 83, italics added.) Based on the jury verdict, Appellant failed to carry her burden of proving that she sustained damages as a result of Kobashigawa’s negligence. Thus, contrary to Appellant’s argument, it is not undisputed that Kobashigawa’s negligence caused Appellant some harm. Rather, the jury found that Kobashigawa’s negligence was not a substantial factor in causing Appellant harm. Therefore, it is not simply a question of the extent of the damages.
The jury’s finding that Kobashigawa’s negligence was not a substantial factor in causing harm to Appellant could have been based on evidence that the May accident was more severe than the July accident because the May accident involved impacts at 40 miles per hour rather than 20 miles per hour. Or, the jury could have relied on evidence that Appellant hit the car in front of her before Kobashigawa hit her, and that any harm she suffered in the July accident accordingly was her own fault, not due to Kobashigawa’s negligence. The jury also could have relied on evidence that Appellant’s continued symptoms were due to the May accident or the September accident, not the July accident. It also is possible that the jury believed the evidence that Appellant simply did not suffer that much harm or that she was exaggerating her symptoms. Thus, it was reasonable for the jury to find that Kobashigawa’s conduct was not a substantial factor in causing harm to Appellant.
Furthermore, in Fibreboard, there was only one cause of the damages suffered by the plaintiff—the tortious conduct of the union. (Fibreboard, supra, 227 Cal.App.2d at p. 704.) The court thus distinguished the case before it from cases in which “separate tortfeasors acted independently of each other and without concert or unity of design.” (Id. at p. 705.)
In the instant case, there were two separate accidents, two months apart. This is not a case involving “‘conduct simultaneous in time, or substantially so, and... conduct of substantially the same character, creating substantially the same risk of harm, on the part of each actor.’” (Setliff v. E.I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1535.)
It is true, as Appellant argues, that “[a] party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) However, even if the trial court erred in refusing to give the jury instruction, “[a] judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ [Citation.]” (Id. at p. 580.)
In Soule, the court explained that, “when the jury receives an improper instruction in a civil case, prejudice will generally be found only ‘“[w]here it seems probable that the jury’s verdict may have been based on the erroneous instruction....”’ [Citations.]” (Soule, supra, 8 Cal.4th at p. 574.) The court reviewing such a claim should consider the entire record, “including the evidence, counsel’s arguments, the effect of other instructions, and any indication by the jury itself that it was misled. [Citation.]” (Ibid.) The court in Soule thus concluded that, although the trial court erred in failing to give the jury the requested instruction, the error was harmless because the evidence and arguments presented at trial uniformly presented the theory, and there was no indication that the jury was confused or that its deliberations were affected. (Id. at pp. 582-583.)
Here, because the trial court denied Appellant’s motion to order separate trials, it may be possible to state that the trial court erred in failing to give the alternative causation instruction requested by Appellant. However, assuming without deciding that the trial court erred in failing to give the instruction, the record reveals that any error was harmless. There was plentiful evidence on which the jury could have relied in finding that Kobashigawa’s conduct was not a substantial factor in causing any harm to Appellant at all. There was no indication that the jury was confused or that its deliberations were affected. A review of the entire record reveals that instructional error, if any, was harmless. (Soule, supra, 8 Cal.4th at pp. 582-583.)
IV. Alleged Misconduct of Counsel
Appellant contends that Respondents’ counsel engaged in misconduct by making comments that prejudiced the jury against her. “‘Generally, to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial.’ [Citation.] In addition to objecting, a litigant faced with opposing counsel’s misconduct must also ‘move for a mistrial or seek a curative admonition’ [citation] unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice [citation].” (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 794-795.)
Appellant raises three instances of alleged misconduct: (1) counsel’s reference to Appellant’s abortions; (2) counsel’s suggestion that a witness called by Appellant had left his wife for Appellant; (3) counsel’s comment that Appellant’s ex-boyfriend was in prison. As to the first and third comments, the trial court sustained objections and ordered the comments stricken. In both instances, the court admonished the jury to disregard the questions.
It is well established that the jury is presumed to follow the trial court’s instructions. (See, e.g., Rufo v. Simpson (2001) 86 Cal.App.4th 573, 598 [“juries are presumed to follow a trial court’s limiting instruction.”]; People v. Bryden (1998) 63 Cal.App.4th 159, 184 [“[T]he jury is presumed to follow the court’s instructions.”].) No prejudice accordingly can be established by the first and third comments because the court admonished the jury to disregard those comments.
As to the second comment, suggesting that the witness left his wife for Appellant, this was one sentence in the context of a 10-day trial. Numerous witnesses testified, including Appellant, thus giving the jury the opportunity to assess her credibility first-hand. In addition, the witness whose motive for testifying allegedly was impugned did not offer a substantial amount of testimony. The witness, John Howard, testified that he mentored Appellant in the area of financial services when she began working at Met Life. Howard testified about the type of training he gave Appellant, the type of work Appellant did, and the success she experienced in her career. Howard also testified that he went to help Appellant after the July accident, and he described a conversation at the scene between Kobashigawa and Kobashigawa’s mother, in which the mother told Kobashigawa that he should not have been talking on his cell phone. Howard also testified that Appellant’s income had gone down in the year before both accidents, and that Appellant had not been able to do much work after her May accident.
Kobashigawa conceded that he was using his cell phone before the accident; therefore, Howard’s testimony regarding Kobashigawa’s mother’s comments was inconsequential. Howard’s testimony regarding Appellant’s work was not particularly helpful to Appellant, especially in light of his testimony that Appellant was unable to work very much following the May accident, and that Appellant’s income had gone down before both accidents. Appellant has failed to establish that counsel’s sole comment regarding a possible motive for Howard to testify on Appellant’s behalf prejudiced the jury.
V. Costs
Appellant contends that the trial court erred in awarding Respondents their costs, including their expert witness fees, pursuant to Code of Civil Procedure section 998. “Code of Civil Procedure section 998 sets forth procedures whereby a party to a civil lawsuit can make a pretrial offer to settle the case. The statute further prescribes conditions whereby the offeror may recover costs and expert witness fees if the offer is not accepted and the offeror obtains a judgment at least as favorable as that proposed in the offer.” (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 695-696, fn. omitted (Elrod).)
“Section 998, subdivision (c)(1) states in relevant part: ‘If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment.... the court..., in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in... preparation for trial... or during trial... of the case by the defendant.’” (Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 185, fn. 35 (Clark).) “A section 998 offer must be made in good faith to be valid. [Citation.] Good faith requires that the offer of settlement be ‘“realistically reasonable under the circumstances of the particular case....” [Citation.]’ [Citation.] A token or nominal offer made with no reasonable prospect of acceptance will not pass the good faith test. [Citation.]” (Id. at p. 185.)
“‘Whether a section 998 offer was reasonable and made in good faith is left to the sound discretion of the trial court.’ [Citation.] ‘In reviewing an award of costs and fees under Code of Civil Procedure section 998, the appellate court will examine the circumstances of the case to determine if the trial court abused its discretion in evaluating the reasonableness of the offer or its refusal.’ [Citation.]” (Clark, supra, 165 Cal.App.4th at p. 185.) Appellant bears the burden of establishing not only that the trial court clearly abused its discretion, but that there has been a miscarriage of justice. (Id. at pp. 185-186.)
Appellant’s argument is based on her contention that, at the time Respondents served Appellant with the offer to compromise, Respondents withheld the existence of a surveillance video of Appellant that suggested Appellant’s medical condition was not as dire as she represented. Appellant does not explain how Respondents’ possession of a video indicating that she was able to lift heavy groceries into her car rendered the offer to compromise a bad faith offer.
Appellant rejected two settlement offers made by Respondents: an offer to compromise of $150,000 in April 2006, and an offer to compromise of $50,000 in January 2007. Appellant certainly was aware of her own physical limitations and capabilities; therefore, the fact that Respondents had evidence of her capabilities should not have affected her evaluation of the settlement offers. Nor does it indicate that the offer to settle was “nominal” or made “with no reasonable prospect of acceptance.” (Clark, supra, 165 Cal.App.4th at p. 185.) Even if Respondents’ failure to disclose the existence of the video did exhibit bad faith, Appellant testified that she was aware that she was being followed and that the people following her likely were conducting surveillance on behalf of Respondents. Thus, it is not even clear that she was unaware of the surveillance video.
Appellant’s reliance on Elrod accordingly is unavailing. Appellant cites the Elrod court’s concern that an offer might be unreasonable if a plaintiff and a defendant do not have the same information when the offer is made. (Elrod, supra, 195 Cal.App.3d at p. 699.) Elrod, however, presents a very different situation from that presented here. In Elrod, the defendant made a pretrial offer of $15,000; the jury subsequently found that the plaintiff suffered over $1 million in damages. The court in Elrod affirmed the trial court’s finding that the offer was not reasonable, stating that “[t]he trial court was entitled to infer unreasonableness from the jury verdict.” (Id. at p. 700.) Here, Appellant knew that she was claiming that she was unable to work, and she was aware of her own physical capabilities; she also was aware that Respondents appeared to be conducting surveillance of her activities. In addition, in contrast to Elrod, where the jury award was substantially greater than the settlement offer, the jury here awarded Appellant nothing in damages.
“One factor to be considered by the trial court as to the reasonableness of a section 998 offer is the amount offered as compared to the judgment ultimately recovered. [Citation.] Where the offeror obtains a judgment more favorable than its offer, the judgment constitutes prima facie evidence showing the offer was reasonable. [Citation.]” (Barba v. Perez (2008) 166 Cal.App.4th 444, 450.) Appellant “points to nothing in the record rebutting this presumption.” (Ibid.)
Appellant has failed to meet her burden of establishing that the trial court’s determination constituted a miscarriage of justice. (Clark, supra, 165 Cal.App.4th at p. 185.) She therefore has failed to establish an abuse of discretion. The trial court’s denial of her motion to tax costs and the denial of her motion for reconsideration are affirmed.
DISPOSITION
The judgment is affirmed in all respects.
Appellant raised an issue regarding damage to her car in rebuttal at oral argument. This issue was not raised in her opening brief or her reply brief and therefore has been waived. (Meza v. H. Muehlstein & Co. (2009) 176 Cal.App.4th 969, 983.)
We concur: ROTHSCHILD, Acting P. J.,JOHNSON, J.