Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ricardo A. Torres, Judge. Los Angeles County Super. Ct. No. BC290281.
Horvitz & Levy, David M. Axelrad, H. Thomas Watson and Karen M. Bray; Hemer & Barkus and Ramune E. Barkus for Defendant, Appellant and Cross-Respondent.
Edward J. Seltzer and Edward J. Horowitz for Plaintiffs, Respondents and Cross-Appellants.
ALDRICH, J.
INTRODUCTION
Janitor Israel Hernandez contracted human immunodeficiency virus (HIV) after being twice stuck by bloody needles that had been improperly placed in the regular trash in the medical suite leased by Charles W. Hopkins, M.D. Mr. Hernandez and his wife Vilma (together Hernandez or plaintiffs) brought this action seeking damages for negligence, premises liability, negligence per se, and loss of consortium against, among others, Dr. Hopkins, who has since died. His estate (the Estate) appeals from the judgment entered upon a jury verdict awarding plaintiffs $1 million based on a finding that Dr. Hopkins was 50 percent responsible for plaintiffs’ injuries. Plaintiffs cross-appeal challenging the calculation of damages. We affirm the judgment in all respects.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Crenshaw Medical Center’s Suite 507
The Crenshaw Medical Center was owned by a number of entities that were owned by defendant Safco Capital Corporation and its related companies (Safco). K & P Janitorial (K & P) provided janitorial services to the Crenshaw Medical Center. K & P’s responsibilities were limited to dusting, vacuuming, sweeping, mopping floors, and emptying the ordinary trash containers. K & P’s contract did not include handling medical waste. Such biohazardous waste, including “sharps,” i.e., needles, by law must be placed in a separate, special container.
Health and Safety Code section 118285 reads: “To containerize sharps waste, a person shall do all of the following: [¶] (a) Place all sharps waste into a sharps container. [¶] (b) Tape closed or tightly lid full sharps containers ready for disposal to preclude loss of contents. [¶] (c) Store sharps containers ready for disposal for not more than thirty days without the written approval of the enforcement agency. [¶] (d) Label sharps containers with the words ‘sharps waste’ or with the international biohazard symbol and the word ‘BIOHAZARD.’ ”
Tenants in the Crenshaw Medical Center were responsible for properly disposing of sharp instruments and medical waste. A professional service, not K & P, emptied the special disposal containers for biohazardous waste. The doctor who uses or supervises the use of a sharp instrument is responsible for its proper disposal. “[T]he buck stops with the doctor.”
Dr. Hopkins practiced cardiology for many years. His practice did not include the use of sharp instruments or the performance of any invasive procedures, and did not generate medical or biohazardous waste.
Dr. Hopkins was the sole lessee of suite 507 in the Crenshaw Medical Center as of 1986. By 2002, he was suffering from ill health. He had coronary artery disease, prostate cancer, anemia, and Alzheimer’s disease. After January 1, 2002, Dr. Hopkins had no employees in suite 507. Still, Dr. Hopkins’s business card was on display in suite 507 on September 3, 2002.
By January 1, 2002, Dr. Hopkins allowed Dr. Nolan C. Jones, who practiced obstetrics and gynecology, “to occupy space in Suite C507” until Dr. Hopkins’s lease ended. Dr. Hopkins believed Dr. Jones was an obstetrician/gynecologist practicing and performing surgeries associated with that profession in suite 507.
Dr. Hopkins did not inform Safco that he “permitted” Dr. Jones to occupy the suite. Dr. Hopkins remained the lessee of suite 507 between January 1, 2002, and September 2002. As far as Safco’s off-site property manager for the Crenshaw Medical Center, Thomas Klugman, knew, Dr. Hopkins was the only one in suite 507, and was still practicing medicine there. Mr. Klugman did not know that Dr. Jones was present in suite 507 until after this lawsuit was commenced.
Mr. Hernandez testified that in 2002 “[t]here were two doctors that were working inside” suite 507. One doctor was an older man who was a heart specialist, who was in poor health, and who had a difficult time walking. He would come to the office to pick up his mail and leave. The other doctor was a younger man. Mr. Hernandez thought the younger doctor was “doing abortions because you could see the waste in the trash.”
The condition of suite 507 in 2002 was unsanitary. Although the suite had sharps containers for disposing of hazardous waste, needles were repeatedly thrown in the regular trash. Also, there was a “really foul stench inside.” Mr. Hernandez described plastic bags that were ripped and had blood squirting out onto the floor. Over the course of five or six nights, Kelly Lynch, owner of K & P, and her insurance agent inspected suite 507 and took photographs showing needles in the ordinary trash every night.
2. Mr. Hernandez is stuck by bloody needles in January and February 2002
Vilma and Israel Hernandez were married in 1991 and have four children, one of whom was conceived after the incidents that gave rise to this lawsuit. They have been faithful to each other and Mr. Hernandez never used illegal drugs or needles. He had tested negative for HIV prior to 2002.
In 2000, plaintiffs began working for K & P and in 2002 were assigned to the Crenshaw Medical Center where their duties included suite 507.
In January 2002, Mr. Hernandez was pushing down on trash from the ordinary trash bin when his hand was stuck by a bloody needle attached to a syringe. The needle was wrapped in paper that doctors use for beds. Mr. Hernandez was wearing disposable gloves at the time because the offices were filthy. Mrs. Hernandez immediately cleaned the wound with alcohol.
Mr. Hernandez immediately reported the needle incident to his supervisor, Araceli Aguirre, who told him she would take care of the matter. The following day, Aguirre reported the incident to manager Klugman.
3. Dr. Hopkins is notified of the incident
On January 23, 2002, Mr. Klugman sent a letter to Dr. Hopkins at suite 507, through regular mail, notifying Dr. Hopkins that “the regular trash has contained needles and other sharp objects” and that Mr. Hernandez had been stuck by a needle.
Mr. Klugman testified that a couple of weeks later he made a follow-up telephone call. The person in suite 507 who answered Mr. Klugman’s call stated, “Dr.’s office” and informed Klugman that “they did receive a letter” and “the matter had been taken care of.”
The lease gave Dr. Hopkins a time frame in which to correct problems such as the improper disposal of biohazardous waste. Dr. Hopkins admitted receiving Mr. Klugman’s letter. However, there is no evidence that Dr. Hopkins took any action to fix the situation as, about a month after the first incident, in February 2002, Mr. Hernandez was again stuck by a needle that was attached to a syringe half-full of blood and that had been placed in the regular trash.
Dr. Hopkins stated in discovery that he did not see body tissue being disposed of, and did not observe medical waste, needles, or syringes being disposed of, in the normal trash in suite 507 between January 1, 2002, and September 2002.
Mr. Hernandez was diagnosed in August 2002 with HIV.
Neither Vilma Hernandez, nor their child conceived after Mr. Hernandez was stuck, is HIV positive.
4. Dr. Hopkins closes his office four months later
On December 28, 2002, nearly a year after Mr. Hernandez’s accidents, Dr. Hopkins sent a handwritten letter to his landlord stating “due to health reasons I will be closing my office effective February 1, 2003. January 2003 will be my last month.” The letter was signed Charles Hopkins. Dr. Hopkins died on December 30, 2003, of cardiac arrest caused by coronary heart disease.
A mark after Dr. Hopkins’s name suggests that someone else may have written that letter.
5. The result of Mr. Hernandez’s illness
Since his diagnosis, Mr. Hernandez has been different “in almost everything. He’s not the same kind of husband.” His medications make him nauseous and he throws up his food. He has trouble keeping his weight up. He also suffers from diarrhea and must wear diapers.
Plaintiffs’ infectious diseases expert, Dr. Jeffrey Galpin, explained that HIV is transmitted through the transfer of infected fluid from one person to another by a needle puncture or sexual contact. Typically, people have between 500 to 1,500 T-cells per milliliter of blood. A person whose T-cell count drops below that amount has HIV. The condition is called AIDS when the T-cell count drops below 200 per milliliter. Dr. Galpin stated, HIV/AIDS is “a needle stick disease.” That is, “[t]he easiest way to get it, is . . . needle.”
Dr. Galpin testified to “a medical certainty” that it was more likely than not that Mr. Hernandez contracted the HIV virus from either one, or two, or both needle jabs occurring in suite 507. Dr. Galpin opined that Mr. Hernandez “picked up HIV from having a couple of needle sticks where he worked in . . . office suite 507 . . . .” Several factors “give a probability of a very high result when . . . put . . . all together” (italics added) including: (1) Mr. Hernandez’s past history lacked other risk factors; (2) Mr. Hernandez did not also have other diseases that show up with people who lead promiscuous lives or have been IV drug users; and critically, (3) Mr. Hernandez’s CD4 (T-cell) count was low when he was diagnosed and he had a modest elevation of viral load, indicating that he had contracted HIV recently. “There are lots of people that get sick right away.”
Asked whether one could predict which needle stick caused Mr. Hernandez’s HIV, Dr. Galpin responded, “It is not predictable. It doesn’t really matter. But what is predictable is if you get more than one, you have twice the chance of getting the disease. So I don’t care which one gave it, but it’s sort of like if you have a million lottery tickets, you have a better shot at the lottery. If you get one needle stick, you have one out of a certain number. If you have two needle sticks, you double your risk. . . . The only importance of the January/March needle sticks, which means there was more than one which increased the risk.”
Dr. Galpin explained, it was “huge” that Mr. Hernandez did not have other risk factors. “If you don’t have any other risk factors, you’re stuck with a bunch of needles and have blood on them and you’ve been diagnosed with HIV, likelihood . . . that’s where the money is. That’s the likely place it is.”
The Estate’s expert, Dr. Eric Daar, opined to a reasonable medical probability that Mr. Hernandez did not get HIV from a needle stick in January or March 2002. He based his opinion on (1) the “relatively low” likelihood that the patients in suite 507 were infected with HIV where only Dr. Jones was using needles in suite 507, and his patients were women, who make up a much smaller percentage of the population of those infected with HIV. (2) Three in a thousand people are exposed to the disease from a needle puncture where the blood has been exposed to air for a while and so the CDC recommends unless there is a really high suspicion that there was likely to have been blood with HIV in the trash, that one should not start treatment after being stuck by a needle in the trash in a clinic. (3) The risk of infection was reduced here because Mr. Hernandez was wearing gloves at the time and the needles were wrapped in paper. (4) Even assuming the needles contained HIV-infected blood, the average person does not have as low a T-cell count as Mr. Hernandez (237 T-cells per milliliter) within the first year of exposure. One study showed that five percent of people in the first year of infection have a T-cell count as low as Mr. Hernandez’s. Dr. Daar had no opinion to a reasonable medical certainty how Mr. Hernandez contracted HIV. Dr. Daar was optimistic about the way Mr. Hernandez has responded to therapy.
Centers for Disease Control.
Dr. Daar acknowledged that the probability of HIV infection from needle sticks differs depending on factors such as whether the needle had blood on it or was attached to a syringe that had blood in it. The probability also depended on the type of clinic and type of patients who were undergoing surgery in suite 507.
6. The lawsuit
Plaintiffs filed their complaint in February 2003. After several amendments, the complaint named Dr. Hopkins, Safco, K & P, and Dr. Jones as defendants, and alleged causes of action sounding in negligence, premises liability, negligence per se, and loss of consortium. Safco cross-complained against Dr. Hopkins, Dr. Jones, and K & P seeking indemnity and declaratory relief. Neither Dr. Hopkins nor his Estate ever filed a cross-complaint against Dr. Jones. After Dr. Hopkins’s death, his estate answered the sixth amended complaint.
American Commercial Claims Administrators for Everest National Insurance Company filed a complaint in intervention seeking reimbursement of worker’s compensation benefits paid to Mr. Hernandez.
After trial, the court instructed the jury on, inter alia, negligence, premises liability, and negligence per se. By special verdict, the jury found that Safco and Dr. Hopkins owned, leased, occupied, or controlled the property; both Safco and Dr. Hopkins were negligent in the use or maintenance of the property, and their negligence were substantial factors in causing Mr. Hernandez’s harm. It found that Safco was 35 percent, Dr. Hopkins was 50 percent, Jones 0 percent, K & P was 10 percent, and Mr. Hernandez was 5 percent responsible for plaintiffs’ losses.
The jury awarded Mr. Hernandez $1.2 million in future medical expenses, $200,000 in past non-economic loss, $1.8 million in future non-economic loss for a total of $3.2 million. The jury awarded $1 million to Mrs. Hernandez for past and future non-economic damages and loss of consortium.
On plaintiffs’ motion, the court awarded interest pursuant to Code of Civil Procedure section 998 and former section 2033, subdivision (o) [now § 2033.420]. Citing Probate Code section 554, the court ordered that the judgment against the Estate, including damages, interest, and costs be capped at the $1 million limit of Dr. Hopkins’s insurance policy.
After judgment was entered, the Estate moved for a new trial and judgment notwithstanding the verdict, and filed its notice of appeal. The trial court denied the Estate’s motions. Thereafter, the Estate filed its second notice of appeal and plaintiffs filed their cross-appeal.
CONTENTIONS
In its appeal, the Estate assigns as error: (1) insufficiency of the evidence of (a) negligence and (b) causation; (2) erroneous evidentiary rulings in (a) barring Dr. Jones from testifying and (b) ruling that MICRA did not apply; (3) error in instructing on (a) premises liability, (b) negligence per se, and (c) causation; (4) error in denying a new trial motion for juror misconduct; and (5) excessive damages.
In their cross-appeal, plaintiffs contend that the trial court erred in reducing the entire award, including costs and interest, to the limits of the Estate’s insurance pursuant to Probate Code section 554.
DISCUSSION
I. THE APPEAL
1. The evidence was sufficient to support the jury’s finding that Dr. Hopkins was negligent and his negligence was a substantial factor in Mr. Hernandez’s injury.
a. There was substantial evidence that Dr. Hopkins breached his duty as a tenant
The Estate contends that there is insufficient evidence that Dr. Hopkins was liable for Mr. Hernandez’s injury because plaintiffs did not present evidence that Dr. Hopkins knew about the dangerous condition.
“ ‘[T]he existence and scope of a defendant’s duty of care is a legal question’ for the court to decide [citation], and . . . a person who exercises control over property owes a duty of care to persons injured by a dangerous condition on that property. The determination of this issue, however, does not eliminate the role of the trier of fact. ‘In an action for negligence the plaintiff has the burden of proving [¶] (a) facts which give rise to a legal duty on the part of the defendant . . . .’ [Citations.] Where a triable issue of fact exists, it is the function of the jury to determine the facts. [Citation.]” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162, fn. 4 (Alcaraz).)
Turning to the law of premises liability, “[i]n the landmark case of Rowland v. Christian [(1968)] 69 Cal.2d 108, the Supreme Court rejected the distinctions made by the common law as to invitees, licensees, and trespassers, and held that an owner or occupier of land owed the same standard of care as others. Negligence was based upon whether, in the management of one’s property, reasonable care was used to prevent injury to others. [Citation.]” (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779, italics added; see also Civ. Code, § 1714 [“Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his or her property or person . . . .”].)
Generally, “A defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess, or control.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134; accord, Alcaraz, supra, 14 Cal.4th at p. 1162.) “ ‘The important thing in the law of torts is the possession, and not whether it is or is not rightful as between the possessor and some third person.’ ” (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1083, p. 407, quoting from Rest.2d Torts, § 328E, com. a, p. 171.) “[T]he phrase ‘own, possess, or control’ is stated in the alternative. [Citation.] A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz, supra, at p. 116, third italics added.)
Accordingly, the jury here was instructed from CACI Nos. 1000 and 1001 that “To establish [their premises liability claim], plaintiff must prove . . . [¶] 1. That defendant owned or leased, occupied or controlled the property . . . .” and that “A person who owns, leases, occupies, or controls property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others . . . .”
There was sufficient evidence from which the jury could conclude that Dr. Hopkins possessed or controlled suite 507, thus giving rise to a duty to use reasonable care to prevent injury to others. Dr. Hopkins was the sole lessee of suite 507. He was the only person on the lease. He did not notify Safco or Mr. Klugman that Dr. Jones was occupying space in suite 507 or that he was no longer practicing medicine until almost a year after Mr. Hernandez was stabbed. Mr. Klugman and Safco only knew that Dr. Hopkins was the sole person occupying suite 507 and practicing medicine there. This is strong evidence that Dr. Hopkins had exclusive possession and control. (Cf. Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514 [“the exclusive possession of rented premises normally is vested in the tenant”].) Dr. Hopkins was the only person legally entitled to possession of suite 507.
Notwithstanding that owning, possessing, or controlling are stated in the disjunctive and there was sufficient evidence to support the verdict based on Dr. Hopkins’s lease and hence possession alone, there was also evidence from which the jury could conclude that Dr. Hopkins was occupying and controlling suite 507 at the time of Mr. Hernandez’s needle stabs. The jury heard Dr. Hopkins’s response to requests for admission in which he admitted he was the one who permitted and allowed Dr. Jones to occupy space in suite 507, suggesting Dr. Hopkins retained control over the use of the premises. While some testimony could support the inference that Dr. Jones replaced Dr. Hopkins in suite 507, other credible testimony supports the conclusion that at the time of his accident, Dr. Hopkins was the tenant in possession occupying suite 507 simultaneous with Dr. Jones. Mr. Hernandez testified that two doctors, one older and another younger, were “working inside” suite 507 in January 2002. Dr. Jones stated in an interrogatory response that he occupied “space in Suite C507,” leading to the inference that he did not take over the entire suite and that Dr. Hopkins was still in possession. The Estate cites Dr. Jones’s statement in response to interrogatories in September 2003 that his place of employment was suite 507; but that is not evidence that at the time of Mr. Hernandez’s injuries, Dr. Hopkins was not in possession and control. Nor is the statement of plaintiffs’ expert in HIV disease and causation that he was told that Dr. Jones “took over” for Dr. Hopkins substantial evidence, particularly where the record indicates that he “took over” only space in suite 507, not the entire suite. In sum, ample testimony supports the jury’s finding that Dr. Jones had permission to use some but not all of the suite. The fact that Dr. Hopkins was no longer practicing medicine during this time is of no legal importance given his status as the only legal lessee and his continued presence in the suite.
Nor do legal conclusions made by counsel for the Estate in opening statement constitute evidence of possession or control. (See People v. Perez (1992) 2 Cal.4th 1117, 1126 “[It is elementary, however, that the prosecutor’s argument is not evidence . . . .”].)
More important, it was undisputed Dr. Hopkins was receiving mail at suite 507, came there to pick up his mail, admitted receiving Mr. Klugman’s January 2002 letter addressed to him there, and had his business cards on display in the suite. Indeed, Dr. Hopkins did not relinquish his possession and control until nearly a year after Mr. Hernandez’s accidents when he actually notified Safco that he was terminating his lease and closing his offices. Taken together, the evidence supports the jury’s finding that Dr. Hopkins possessed and controlled suite 507 at the time of Mr. Hernandez’s accidents.
The Estate’s statement in its opening brief that Dr. Hopkins’s “children and a nephew would periodically bring him by his former office to check for mail” (italics added) is unsubstantiated by the citation references which indicate only that Dr. Hopkins picked up his mail at suite 507. The remainder of the citations are to statements by the Estate’s counsel out of the jury’s presence. Otherwise, there is no evidence about the frequency with which Dr. Hopkins came to pick up his mail nor how he came to his office.
Thus, the Estate’s reliance on Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649 is unavailing because unlike Laico, Dr. Hopkins was present in suite 507 when Dr. Jones was occupying space in it, with the result Dr. Hopkins always had the ability to observe and remedy the unsafe conditions.
Accordingly, the Estate’s contention is meritless that “[t]he issue here is whether a landowner (or master lessor) not in possession of its property owes a duty of care to his tenant or his tenant’s invitees concerning a dangerous condition on the premises which comes into existence after the tenant has taken possession.” (First italics added.) The fallacy of the Estate’s argument is apparent for two reasons. First, the evidence does not support the inference that Dr. Hopkins was a “master lessor.” The Estate cites to no evidence of a sublease other than a quotation from Safco’s attorney’s opening statement before the jury and a legal conclusion made in its trial brief which the jury never saw. (See fn. 7, supra.) Safco had no knowledge that Dr. Jones was in suite 507, much less as a sublessee. As plaintiffs observe, the Estate cites to no authority for the proposition that merely by abandoning a leasehold to another not legally authorized, without notice to the landlord, a tenant’s status as a lessee -- and his legal duties associated with that status -- terminate. Second, other evidence sufficiently supports the conclusion, as analyzed supra, that Dr. Hopkins was in possession of his property at the time of the accidents.
Turning to the scope of the duty under these circumstances, “[t]he relevant question is not ‘mere ownership,’ but whether the possessor has maintained the property in a reasonably safe condition.” (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1335, citing Alcaraz, supra, 14 Cal.4th at p. 1156.) “ ‘The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others . . . .’ [Citation.] This requires persons ‘to maintain land in their possession and control in a reasonably safe condition. [Citations.]’ [Citation.] [¶] This duty to maintain land in one’s possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control.” (Alcaraz, supra, at p. 1156, italics added.)
Whether one owes a duty in a particular case depends upon consideration of numerous factors: “ ‘the foreseeability of harm to the plaintiff, the degree of certainty that plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ ” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 885-886.)
Applying these factors here, we conclude that where the evidence supports the jury’s finding Dr. Hopkins was the tenant in possession and control of suite 507, Dr. Hopkins owed a duty to exercise reasonable care in suite 507 for persons foreseeably injured by a dangerous condition on that property to take reasonable steps to prevent injury. (Alcaraz, supra, 14 Cal.4th at p. 1162.) He was required to act as a reasonable man in the management of his suite and to maintain his suite in a reasonably safe condition. (Id. at p. 1156.) He had to comply with the medical waste disposal procedures by rectifying the improper disposal of needles. It was foreseeable the illegal disposal of biohazardous waste would harm someone. That is a main purpose behind Health and Safety Code sections 118285 [see fn. 1, ante] and 118280 [setting forth the requirements for containerizing and storing biohazardous waste]. The harm is most certainly critical, as Mr. Hernandez contracted a deadly disease. The “really foul stench” and plastic bags that were ripped and had blood squirting out on the floor, certainly constituted a dangerous condition that was extant before Mr. Hernandez’s first injury, and were blatant signs of mishandling. Furthermore, Mr. Klugman’s letter in January 2002 about Mr. Hernandez’s first accident put Dr. Hopkins on direct notice of hazards in the suite. Dr. Hopkins’s failure to require proper disposal of biomedical waste was closely connected to the injury Mr. Hernandez suffered. Moral blame attached to Dr. Hopkins’s conduct where he was a physician charged with knowledge of the duties required of him by statute and medical ethics. The risk of harm to the general public clearly outweighed the presence of a particular tenant or suite-mate on the premises. Imposition of a duty under these circumstances was a relatively small burden to impose on defendants, especially where the Health and Safety Code already imposes it. Finally, the risk posed here was insurable.
Cases cited by the Estate, Uccello v. Laudenslayer, supra, 44 Cal.App.3d at page 510; Martinez v. Bank of America (2000) 82 Cal.App.4th 883 at page 887; and Leakes v. Shamoun (1986) 187 Cal.App.3d 772 at page 776, are inapposite for the simple reason that they involved landlords who did not occupy the premises and did not have the right to enter and inspect the leased premises for dangerous conditions. Here, Dr. Hopkins was not a landlord out of possession and so he had an affirmative duty “ ‘to maintain land in [his] possession and control in a reasonably safe condition. [Citations.]’ ” (Alcaraz, supra, 14 Cal.4th at p. 1156.) The Estate quotes Mora v. Baker Commodities, Inc., supra, 210 Cal.App.3d at page 780 for the proposition that defendants are not liable if they “did not have the power, opportunity and ability to eliminate the danger.” However, as noted, the Supreme Court has explained that the duty to maintain property in one’s possession “exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control.” (Alcaraz, supra, at p. 1156, italics added.) Such a rule applies in this case where sufficient evidence supports the jury’s finding that Dr. Hopkins was the possessor and controlled suite 507, and therefore did have the power and opportunity to eliminate the danger.
In sum, sufficient evidence supports the jury’s conclusion that Dr. Hopkins breached his standard of care by failing to correct the dangerous condition. The testimony supported the inference that Dr. Hopkins knew or should have known of unsafe conditions in suite 507 both because of the foul stench and bags leaking onto the floor and because of the notice Dr. Hopkins admitted receiving from Mr. Klugman. Despite this knowledge, Dr. Hopkins neither corrected the problem nor advised Safco that he was no longer in control of suite 507 and in a position to correct the problem. The evidence supports the jury’s finding of negligence here.
b. There was sufficient evidence that Dr. Hopkins’s negligence was a substantial factor in bringing about plaintiffs’ injuries
“[T]o demonstrate actual or legal causation, the plaintiff must show that the defendant’s act or omission was a ‘substantial factor’ in bringing about the injury. [Citations.]” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774.) In other words, plaintiff must show some substantial link or nexus between omission and injury. Plaintiff “must establish, by nonspeculative evidence, some actual causal link between the plaintiff’s injury and the defendant’s [breach of duty].” (Ibid.) “ ‘A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’ [Citation.]” (Id. at pp. 775-776.)
“ ‘ “It is enough that [plaintiff] introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. . . . [¶] . . . Conduct can be considered a substantial factor in bringing about harm if it ‘has created a force or series of forces which are in continuous and active operation up to the time of the harm’ [citation], or stated another way, ‘the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another’ [citation].” ’ [Citation.]” (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314.)
Here, the Estate’s contention to the contrary, the evidence of causation was substantial. Plaintiffs’ expert, Dr. Galpin, testified to “a medical certainty” that it was more likely than not that Mr. Hernandez contracted the HIV virus from either or both needle jabs. Dr. Galpin described the reasons for his conclusions. Mr. Hernandez’s lack of risk factors was especially telling. Dr. Galpin explained that Mr. Hernandez’s T-cell count was low when he was diagnosed, and he had a modest elevation of viral load, all of which indicated that he had contracted HIV recently. “There are lots of people that get sick right away.” Although defendants’ expert, Dr. Daar, opined to the contrary, Dr. Galpin’s testimony provided substantial evidence to support the jury’s causation finding.
The Estate goes to great lengths to demonstrate that the only accident for which Dr. Hopkins could be held responsible was the second because it occurred after Dr. Hopkins had actual notice from Mr. Klugman’s letter of the hazardous conditions in the suite. The Estate argues that there is no evidence that a reasonable inspection of the suite, as would be required of Dr. Hopkins, would have revealed infected needles in the regular trash. Thus, the Estate reasons, because there is no testimony identifying which needle puncture actually gave Mr. Hernandez HIV, the causation evidence is insufficient.
The contention misses the point. As analyzed, Dr. Hopkins’s duty was that of the tenant and possessor of the suite, not that of a landlord. Dr. Hopkins’s duty to maintain suite 507 existed long before the first puncture; it existed since 1986. There was patent evidence -- odor and medical trash -- that biohazardous waste was improperly thrown away creating a dangerous condition. As for the second accident, even the Estate concedes that Dr. Hopkins had actual notice of the conditions of the premises before Mr. Hernandez was stabbed in February 2002. Therefore, the jury could reasonably conclude from Dr. Hopkins’s failure to notice and remedy the condition of the suite was a substantial factor in both of Mr.
The Estate cites to plaintiffs’ property management expert who stated that a lessor has no obligation to “go into an office and dump out the trash and look for any biomedical waste.” However, the management expert was referring to the duty of a lessor, not the duties of a physician-tenant in possession or control, such as Dr. Hopkins.
Hernandez’s accidents. There being substantial evidence that Dr. Hopkins knew or should have known of the hazardous condition before either needle puncture, it is of no moment that plaintiffs’ expert would not pinpoint which accident actually transmitted HIV to Mr. Hernandez.
The Estate contends “[t]here is no evidence that Dr. Hopkins’s failure to respond to the January 2002 needle stick caused plaintiffs’ injury.” To the contrary, Dr. Hopkins’s failure to take steps to correct the disposal practices allowed the dangerous condition to persist, which nearly guaranteed that someone would come in contact with human blood and needles. The evidence of causation was ample.
2. The court did not commit prejudicial evidentiary error
a. The trial court did not err in barring Dr. Jones from testifying
The Estate contends that the trial court erred in barring Dr. Jones from testifying.
Plaintiffs named Dr. Jones as a defendant in their complaint. Dr. Jones answered the complaint by generally denying the allegations and asserting as an affirmative defense that plaintiffs’ injuries were proximately caused by the negligence of third parties. Despite plaintiffs’ multiple motions to compel, Dr. Jones repeatedly failed to appear for properly noticed depositions and refused to answer interrogatories. Dr. Hopkins did not attempt to serve discovery on or depose Dr. Jones, despite defense counsel’s statement that “[a]ll the information is with Dr. Jones. . . . We need to get the information from him.” The Estate never filed a cross-complaint against Dr. Jones.
In December 2003, Dr. Jones filed for bankruptcy protection triggering an automatic stay. In January 2004, plaintiffs announced they no longer needed Dr. Jones’s testimony to prove their case and were prepared to dismiss Dr. Jones from the action. Counsel for defendant Safco indicated he still wanted to take Dr. Jones’s deposition and intended to apply to the bankruptcy court to lift the stay. Although defense counsel “join[ed] in everything that’s being said regarding Dr. Jones, his testimony is essential,” defense counsel never thereafter attempted to depose Dr. Jones.
The Estate included Dr. Jones’s name on its witness list for trial as a percipient witness. Plaintiffs moved in limine to exclude Dr. Jones’s testimony arguing it was irrelevant because no deposition of Dr. Jones was ever taken, and his testimony’s probative value would be outweighed by its prejudicial effect. Dr. Jones’s testimony about “who created or maintained the hazard in suite C507” was irrelevant; the only relevant evidence was that the hazard “existed there and that Dr. Hopkins knew or should have known about it and failed to remedy the situation.”
The court ruled where a previous motion to compel Dr. Jones’s deposition had been denied because of the automatic stay, that Dr. Jones could not testify at trial: “[t]hat wouldn’t be fair . . . .” The court also ruled, “in regards to using documents against Dr. Jones for purposes of apportionment, the parties will be allowed to do that and use those. Those were clearly obtained before the stay and you can do that.” The court later reversed that ruling in limine, ruling instead that Dr. Jones’s answers to interrogatories would be excluded if Dr. Jones had refused to appear prior to filing for bankruptcy protection.
The Estate cites other rulings by the trial court that barred certain testimony of other witnesses. Because the Estate makes no argument that such testimony was erroneously precluded, we disregard the contention as forfeited. (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 & fn. 2 [“Briefs must provide argument and legal authority for the positions taken”].)
The Estate argues that the bankruptcy stay did not prevent plaintiffs from seeking discovery from Dr. Jones in his capacity as a witness and it was not required to depose Dr. Jones before placing him on the witness list. Nonetheless, the Estate argues, “the trial court erroneously punished the Hopkins Estate by barring it from calling Dr. Jones as a witness merely because plaintiffs failed to take the proper steps needed to secure Dr. Jones’ deposition testimony prior to trial.”
Plaintiffs did take all of the steps necessary to secure Dr. Jones’s testimony. Nine months before trial, plaintiffs decided they did not need Dr. Jones’s testimony to prove their case and were even prepared to dismiss Dr. Jones from the action. It became the Estate’s obligation to secure Dr. Jones’s testimony. But, the Estate never even sought to lift the automatic stay. Even if Dr. Jones could have testified at trial in spite of the bankruptcy stay, his repeated failure to appear for deposition or to respond to discovery raises questions about whether he would have appeared at trial.
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) However, “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means . . . .” (Evid. Code, § 354, subd. (a), italics added.)
The Estate was aware that no one knew what Dr. Jones would say on the witness stand. Nonetheless, it contends on appeal that the relevant testimony from Dr. Jones would have been that (1) he alone created the dangerous condition, and (2) he was an actual subtenant who occupied and controlled the suite.
We conclude that any error in barring Dr. Jones from testifying was harmless. (Evid. Code, § 354, subd. (a).) The Estate made no offer of proof about the testimony it expected from Dr. Jones. The only indication of Dr. Jones’s position was his answer to the complaint in which he averred that plaintiffs’ injuries were caused by another. Further, the jury heard that Dr. Hopkins did not use needles and that he was not seeing patients at the time of Mr. Hernandez’s accident. Thus, Dr. Hopkins’s liability was based on his status as lessee and controller of the premises, not as the creator of the dangerous condition. Moreover, regardless of whether Dr. Jones was a sublessee who occupied and controlled space in the suite, there was overwhelming testimony supporting the inference that Dr. Hopkins leased, occupied, and controlled suite 507 at the time Mr. Hernandez was injured with the result that Dr. Jones’s status as sublessee of, in Dr. Jones’s words, “space in suite 507” would not have altered Dr. Hopkins’s duties. We are not persuaded by the Estate’s claim that the jury’s assignment of zero liability to Dr. Jones was the result of speculation that Dr. Jones did not exist at all. It is equally likely that the jury, having concluded that Dr. Hopkins, as the only one legally in control of the premises, was responsible for failing to make Dr. Jones properly dispose of the medical waste. In short, even if the trial court abused its discretion in precluding Dr. Jones from testifying, and even conceding the Estate were correct that it was not required to depose Dr. Jones before placing him on its witness list, the trial court’s ruling was harmless.
The Estate argues that plaintiffs’ counsel’s references in closing argument to the Estate’s failure to call Dr. Jones was improper and prejudicial. However, the record fails to indicate that the Estate objected to the argument or requested an admonition to the jury. “ ‘An appellate court will ordinarily not consider procedural defects . . . in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method . . . .’ ” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) Additionally, the Estate requested the jury instruction on the failure to present stronger evidence in CACI No. 203. Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1089 [“ ‘It is an elementary principle of appellate law that “[a] party may not complain of the giving of instructions which he has requested.” ’ ”].)
b. The trial court properly ruled that MICRA was inapplicable to this case and for that reason barred collateral source evidence under Civil Code section 3333.2
In denying Dr. Hopkins’s motion to strike prayers for punitive damages in the complaint based on Code of Civil Procedure section 425.13 (concerning punitive damages claims in negligence actions against health care providers), the court stated, “this action does not involve medical malpractice.” The court was correct. This case involved causes of action for premises liability in violation of statute, where medical services were never provided by defendants to Mr. Hernandez or anyone connected with Mr. Hernandez.
MICRA applies to “any action for injury against a health care provider based on professional negligence . . . .” (Civ. Code, § 3333.2, subd. (a), italics added.) “Professional negligence” is defined in the statute as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (Civ. Code, § 3333.2, subd. (c)(2), italics added.) “[A]ll claims of negligence against health care providers are not subject to [MICRA limitations] but only those for ‘professional negligence.’ [Citation.] An action for damages arises out of the professional negligence of a health care provider if the injury is directly related to the professional services provided by the health care provider. [Citation.] The test of whether a health care provider’s negligence constitutes professional negligence is whether the negligence occurred in rendering services for which the health care provider is licensed. [Citation.]” (Williams v. Superior Court (1994) 30 Cal.App.4th 318, 324-325.) “[T]he focus is . . . on whether . . . the health care provider charged with negligence was acting in the capacity of a health care provider at the time of the allegedly tortious acts.” (Johnson v. Superior Court (2002) 101 Cal.App.4th 869, 886 [test for deciding whether plaintiff must comply with procedural requirements of Code of Civil Procedure section 425.13 to claim punitive damages in a medical malpractice action].) MICRA “applies to any foreseeable injured party, including patients, business invitees, staff members or visitors, provided the injuries alleged arose out of professional negligence.” (Williams, supra, at p. 324.)
Plaintiffs’ lawsuit here was not based on professional negligence because it was not based on Dr. Hopkins’s negligent act or omission “in the rendering of professional services.” (Civ. Code, § 3333.2, subd. (c)(2), italics added.) Mr. Hernandez’s injury is unrelated to Dr. Hopkins’s conduct in providing health care where Dr. Hopkins was not rendering services to Mr. Hernandez or his family members for which he was licensed at any time, and Mr. Hernandez’s injury was not “directly related to the professional services provided by the health care provider.” (Williams v. Superior Court, supra, 30 Cal.App.4th at p. 324.) In fact, Dr. Hopkins averred that he was not providing medical services to anyone at the time of Mr. Hernandez’s injury.
Rather, this lawsuit is based on premises liability. Plaintiffs’ complaint alleges negligence per se because the storage and disposal of the biohazardous and medical waste violated Health and Safety Code sections 118285 and 118280 and Mr. Hernandez was in the class of people these statutes were designed to protect. The complaint also alleges that Mr. Hernandez was injured on the premises because Safco, Dr. Hopkins, and Dr. Jones negligently owned, maintained, managed, and operated suite 507. Dr. Hopkins’s responsibility arose from his capacity as lessee and occupier of suite 507. Moreover, the disposal of hazardous waste could have been performed by anyone and did not require a license as a health care provider or the exercise of professional expertise and judgment. (Compare Johnson v. Superior Court, supra, 101 Cal.App.4th at p. 886 [“collection, processing, and testing of sperm for use in artificial insemination requires the exercise of professional expertise and professional judgment”].) It was failure to correct the hazardous condition of the property, not the rendition of medical services, that caused Mr. Hernandez’s injuries.
Cases cited by Dr. Hopkins are inapposite because they all involved situations where medical services were being provided by a licensed health care provider to someone connected to the plaintiffs. Hedlund v. Superior Court (1983) 34 Cal.3d 695, held that a complaint stated a cause of action for professional negligence where the allegations were that two psychologists failed to warn the plaintiff of threats against her by their patient. The Supreme Court explained that diagnosis and prediction of a patient’s dangerousness is an essential element of a cause of action for failure to warn and the duty to warn. A psychologist’s duty to warn is “inextricably interwoven” with a therapist’s professional and diagnostic responsibilities. (Id. at p. 703.) The omission to act occurred during the time that the therapists were rendering professional services to the patient. (Ibid.) Here, Dr. Hopkins was never providing professional services to anyone who was foreseeably connected to Mr. Hernandez or his family.
In Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, MICRA was applicable to services for which the health care provider was licensed. Bell held that competent selection and review of medical staff applicants is a professional service that the defendant hospital was licensed to provide. Negligent failure to review the applicant surgeon proximately caused the plaintiff’s son’s death. (Id. at pp. 1050 & 1052.)
Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797 held that taking x-rays is the rendering of professional services. The allegations that the plaintiff’s injuries were sustained when the plaintiff fell off the x-ray table stated a cause of action for professional negligence. (See also, Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, 56 [professional duty of hospital is to provide a safe environment within which diagnosis, treatment, and recovery can be carried out; unsafe condition that causes drugged patient to fall out of bed at night is breach of hospital’s duty].) Murillo contrasted situations that did not amount to rendering professional services: “ ‘No reasonable person would suggest that “professional malpractice” was the cause of injury to a patient from a collapsing chair in a doctor’s office . . . or to a hospital patient from a chandelier falling onto his bed.’ [Citation.]” (Ibid.) Unlike Bellamy and Murillo, no one in suite 507 was ever providing medical services to Mr. Hernandez, or anyone related to him, and so this case is more akin to the collapsing chair or falling chandelier.
The Estate relies on Williams v. Superior Court, supra, 30 Cal.App.4th 318 where the plaintiff, a nonemployee phlebotomist, was jabbed with a needle while drawing blood from a violent patient at a rehabilitation institute and two days later tested positive for HIV. The plaintiff sued the institute alleging it was aware of the patient’s violent tendencies and failed to warn her. (Id. at pp. 321-322.) Williams held that MICRA applied. It reasoned that “While lawsuits unrelated to the practitioner’s conduct in providing health care were not intended to be included [in MICRA’s scope] [citation], it would defeat the purpose of the legislation if claims arising out of the practitioner’s professional negligence were excluded from coverage simply because the injured party was not a patient. We therefore conclude [MICRA] applies to any foreseeable injured party, including patients, business invitees, staff members or visitors, provided the injuries alleged arose out of professional negligence.” (Id. at p. 324, italics added.) “The test of whether a health care provider’s negligence constitutes professional negligence is whether the negligence occurred in rendering services for which the health care provider is licensed. [Citation.]” (Id. at pp. 324-325.) The allegations of the complaint in Williams were that the patient was under the control, supervision, and custody of the institute which knew of his psychological condition and health and failed to warn her even by posting a notice in his chart. Such allegations, Williams held, were directly related to the manner in which the institute rendered professional services with the result that MICRA applied. (Id. at p. 326.) Unlike Williams, however, the storage of biohazardous waste in proper containers and maintenance of commercial premises in a reasonably safe condition are common knowledge and do not require the skill or license of a medical practitioner. Thus, unlike Williams, the allegations of plaintiffs’ complaint here are unrelated to the manner in which Dr. Hopkins rendered professional services with the result that MICRA does not apply.
Given that MICRA is inapplicable, the Estate’s contention fails that the trial court erred in “barring collateral source evidence.” (Civ. Code, § 3333.1, subd. (a).) For the same reason, we reject the Estate’s additional contention that the non-economic damages awarded in this case were excessive because the trial court refused to reduce them to the MICRA cap found in section 3333.2, subdivision (b).
3. The trial court did not commit reversible instructional error
a. The premises liability instruction was proper
The Estate contends that the premises liability instruction was erroneous because “it allowed the jury to find the Hopkins Estate liable for a condition that was beyond Dr. Hopkins’s control.” The Estate observes that where the phrase “an owner, lessee, or occupier or one who controls the property” is in the disjunctive, “the court instructed the jury that owners and lessors were liable for dangerous conditions even if they retained no control over property possessed by a lessee.”
However, we have already explained that the instruction’s “phrase ‘own, possess, orcontrol’ is stated in the alternative. [Citation.] A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz, supra, 14 Cal.4th at p. 1162, fourth italics added.) The problem with the Estate’s contention, of course, is that it assumes that Dr. Hopkins did not have control or possession. As already analyzed (ante), sufficient evidence supported the finding that Dr. Hopkins leased, possessed and controlled suite 507, with the result the instruction was appropriate and the trial court properly overruled the Estate’s objection.
b. The negligence per se instruction was not erroneous
Next, the Estate contends that the trial court erred in instructing the jury that Dr. Hopkins alone was responsible for complying with Health and Safety Code requirements for the disposal of medical waste.
The court overruled the Estate’s objections and, based on the evidence presented, limited application of the negligence per se cause of action to Dr. Hopkins only. The court instructed the jury on the disposal requirements of the Health and Safety Code and then instructed: “If you decide: [¶] 1. That Charles W. Hopkins, M.D. violated this law, and [¶] 2. That the violation was a substantial factor in bringing about the harm, then you must find that Charles W. Hopkins, M.D. was negligent unless you also find that the violation was excused.” The Estate contends that this instruction was argumentative because it “fortified plaintiffs’ erroneous position that Dr. Hopkins [only -- and not others such as Safco or Dr. Jones --] was responsible for . . . unsafe condition[s] existing on the premises leased by Dr. Jones.”
However, plaintiffs’ witnesses testified that tenants were responsible for properly disposing of medical waste and the evidence was that Dr. Hopkins was a tenant. There was no error.
c. The error in giving the causation instruction was not prejudicial
The Estate challenges the instruction the trial court actually gave with respect to causation. The court agreed to instruct that “[c]ause must be proven within a reasonable medical probability . . . . Mere possibility is insufficient to establish cause.” (Italics added.) When it actually instructed the jury, the court mistakenly stated: “ ‘Cause may be proven within a reasonable medical probability . . . .’ ” (Italics added.)
The error was not prejudicial. The jury was given the instructions in written form for its use during deliberations and as noted, the written version contained the required “must.” “[W]hen there is an inconsistency between the trial court’s oral and written instructions, it is assumed that the jury followed the written instructions. [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 260.) “Jurors are presumed to understand and follow the court’s instructions.” (People v. Holt (1997) 15 Cal.4th 619, 662.) Indeed, no one, including counsel for the Estate, caught the error even though the Estate’s attorney was vigilant enough to point out other errors in the court’s reading of instructions. Finally, we are not persuaded by the Estate’s argument that the evidence of causation “was (at most) extremely weak” with the result that the instruction’s failure to inform the jury of plaintiffs’ high burden was prejudicial. As explained ante, plaintiffs’ evidence was sufficient to support causation. Plaintiffs’ expert, Dr. Galpin, testified to “a medical certainty” that it was more likely than not that Mr. Hernandez contracted the HIV virus from either one or both needle jabs occurring in suite 507. (Italics added.) That the defense did all it could to impeach this testimony and to present conflicting evidence does not eliminate evidence in the record to support the required finding.
4. Juror misconduct did not prejudice the defense
The Estate contends that a new trial is required because of juror misconduct in that the jury was influenced by the personal experience of Juror R. S.
“ ‘Jurors are not supposed to receive or communicate to fellow jurors information from sources outside the evidence presented in court. [Citation.] If they do, they are guilty of misconduct.’ [Citation.]” (English v. Lin (1994) 26 Cal.App.4th 1358, 1363-1364.) However, “[j]urors do not enter deliberations with their personal histories erased, in essence retaining only the experience of the trial itself. Jurors are expected to be fully functioning human beings, bringing diverse backgrounds and experiences to the matter before them.” (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 741-742.)
It is also well settled that “ ‘ “a presumption of prejudice arises from any juror misconduct. . . . However, the presumption may be rebutted by proof that no prejudice actually resulted.” ’ [Citation.] ‘ “A denial of a motion for new trial grounded on jury misconduct implies a determination by the trial judge that the misconduct did not result in prejudice.” ’ [Citation.]” (English v. Lin, supra, 26 Cal.App.4th at p. 1364.)
“On appeal from denial of a motion for new trial on grounds of juror misconduct, the appellate court, ‘ “ ‘ “has a constitutional obligation [citation] to review the entire record, including the evidence, and to determine independently whether the act of misconduct, if it occurred, prevented the complaining party from having a fair trial.” ’ ” ’ [Citations.] [¶] While a presumption of prejudice arises when there has been any juror misconduct, the presumption may be rebutted by evidence that no prejudice resulted. [Citation.]” (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 817-818, italics added.)
In connection with its new trial motion, the Estate submitted the declarations of three jurors who stated that Juror R. S. told the jury that he “wrote many commercial leases as part of his work,” and explained how commercial leases work and that “based on this work experience, he knew [that] Dr. Hopkins was responsible for Dr. Jones because Dr. Hopkins had the master lease and had sublet office space to Dr. Jones.” These three jurors declared that the statements of Juror R. S. influenced the jury’s determination on apportionment of negligence.
By contrast, plaintiffs submitted the declarations of two jurors who stated that (1) Juror R. S. made his statements after the jury had decided by nine to three that Dr. Hopkins was 50 percent responsible for plaintiffs’ injuries; (2) that those nine jurors did not change their votes after Juror R. S.’s statements; and (3) that the jury foreman explained to the jury that they “could not consider anything that [Juror R. S.] had said in our deliberations as his information was not part of what was presented at the trial.”
Based on a review of the entire record here, as we are required to do, we conclude that the Estate was not prevented from having a fair trial (Iwekaogwu v. City of Los Angeles, supra, 75 Cal.App.4th at pp. 817-818) and so the trial court properly denied the new trial motion on this ground. The jury voted nine to three that Dr. Hopkins was negligent before Juror R. S. made his statements. None of the jurors changed his or her vote after hearing his statements. The Estate submitted the declarations of three jurors who claim they were influenced. It was reasonable for the trial court to conclude that those three were the same block of three in the original vote. Thus, there is no showing that this misconduct had any effect on the outcome. In any event, the foreman specifically directed the jury to disregard the comments of Juror R. S. And, the court instructed the jury not to consider extraneous comments. Jurors are generally presumed to have followed the trial court’s instructions. (People v. Holt, supra, 15 Cal.4th at p. 662.)
The Estate argues that Juror R. S.’s misconduct was prejudicial because no evidence supported the jury’s allocation of 50 percent fault to Dr. Hopkins and zero percent to Dr. Jones. Because Dr. Jones was not a part of this trial, as far as the jury was concerned Dr. Jones was a straw man. We are unpersuaded.
5. The damage award was not excessive
Plaintiffs’ evidence of the cost of future care of Mr. Hernandez’s HIV came from Margaret A. Foux, RN, BSN, AIDS Certified Registered Nurse, and Public Health Nurse who currently manages 300 HIV and AIDS patients. Nurse Foux prepared a life-care plan for typical patients in Mr. Hernandez’s circumstances not for Mr. Hernandez only. The plan listed what services such patients “might be expected to need, supplies, medications, any kind of care that the patient might need over . . . 20 years.”
The Estate contends that the damage award was excessive because it was based on speculative evidence. The contention is meritless.
In Neumann v. Bishop (1976) 59 Cal.App.3d 451, the court stated with respect to testimony about the plaintiff’s employability in the future, “The testimony of the expert witness was not speculative in the sense that he called upon his expertise to make mathematical computations or express an opinion as to future economic conditions. Nor was it speculative in the sense that it was not predicated upon hypotheses that were not warranted by the evidence. The employer testified concerning the plaintiff’s earning capacity, and the doctor testified concerning her then present condition of health and the need for further remedial surgery. The jurors as well as the economist could note the difficulty of securing reemployment at a more advanced age. There was nothing offered which offended the provisions governing the admission of expert testimony found in the Evidence Code. [Citation.]” (Id. at pp. 462, 463.)
We reach the same conclusion here. Nurse Foux’s life-care plan was an “estimate of expected charges encountered in the care of the patient in the future” for a typical person in Mr. Hernandez’s circumstances. Nurse Foux made no assumptions that were speculative or guesswork; all her opinions were based on her experience managing HIV patients for eight years, the history of HIV patients today, and from information gathered from government web sites. Nurse Foux called upon her experience as a nurse for HIV patients to express her opinion about what care a patient with HIV would require. “It was for the jury to determine whether [the expert’s] opinions were based on reliable information. [Citations.]” (Neumann v. Bishop, supra, 59 Cal.App.3d at p. 463.)
II. THE CROSS-APPEAL
1. The trial court did not err in calculating the judgment under Probate Code section 554
Plaintiffs contend that the trial court erred in interpreting Probate Code section 554 to reduce the total award, including costs and pre- and post-judgment interest, to the limits of the Estate’s insurance coverage.
a. Factual background
Plaintiffs jointly made a Code of Civil Procedure section 998 offer to compromise, sent to “Charles W. Hopkins, M.D.” Dr. Hopkins did not accept the offer, and it expired after 30 days.
Five months later and before trial, on December 30, 2003, Dr. Hopkins died. Plaintiffs elected to amend their complaint pursuant to Probate Code sections 550 and 554 because they decided not to “bring[] in the personal representative.” The Estate’s liability insurance had a policy limit of $1 million. Plaintiffs represented to the court repeatedly that it was going for the insurance, not against the personal representative of the estate. “We are forced to name the estate under the Code, and we’ll go against the insurance.” (Italics added.)
In post-trial proceedings, plaintiffs obtained awards for costs, expert witness expenses, and prejudgment interest under Code of Civil Procedure section 998 and Civil Code section 3291. After several hearings and numerous filings by both sides, the court eventually ruled that plaintiffs’ recovery could not exceed the $1 million liability insurance limit and that additional awards such as costs and prejudgment interest could not be added to that amount.
b. Legal analysis
Probate Code section 554 reads:
“(a) Except as provided in subdivision (b), either the damages sought in an action under this chapter shall be within the limits and coverage of the insurance, or recovery of damages outside the limits of coverage of the insurance shall be waived. A judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against property in the estate.
“(b) Where the amount of damages sought in the action exceeds the coverage of the insurance, subdivision (a) does not apply if both of the following conditions are satisfied:
“(1) The personal representative is joined as a party to the action.
“(2) The plaintiff files a claim in compliance with Section 9390.” (Italics added.)
Plaintiffs argue that Probate Code section 554 is ambiguous because, as shown in the italicized portions of the statute, it refers both to the damages sought and the judgment. They resolve the ambiguity by arguing that because interests and costs provided for in Code of Civil Procedure section 998 and Civil Code section 3291 are in addition to the judgment, Probate Code section 554 should not be read to limit the recovery of those items. Otherwise, they argue, “the purposes and remedial effects of section 998 [of the Code of Civil Procedure] and [Civil Code section] 3291 would be nullified” and Article 15, section 1 of the California Constitution, which sets the amount of interest on judgments, would be violated. We disagree.
Code of Civil Procedure section 998, subdivision (d) reads: “If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding . . . the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff’s costs.”
Although Probate Code section 554 employs both the concepts of “damages” and “judgment,” the statute’s effect is manifest on its face and so we are not required to consider its legislative history. (California Ins. Guarantee Assn. v. Workers’ Comp. Appeals Bd. (2004) 117 Cal.App.4th 350, 355 [“ ‘ “It is a settled principle in California law that ‘[w]hen statutory language is . . . clear and unambiguous there is no need for construction, and courts should not indulge in it’ ” ’ ”].) By opting to proceed under section 554, without complying with subdivision (b) of that section a plaintiff has “waived” any recovery of damages over the limits of insurance. Also, regardless of the amount of damages sought, “[a] judgment . . . is enforceable only from the insurance coverage.” (Italics added.) That is, when damages are in excess of insurance, the judgment, which encompasses damages and costs, etc.,is only enforceable up to the policy limits. This is obvious from the fact that there is no one else from whom any amounts in excess of insurance coverage may be recovered. Section 554, subdivision (a) specifically disallows the enforcement of judgment from “property in the estate.” A plaintiff may only recover from “property in the estate,” if (1) the personal representative is joined as a party to the action, and (2) the plaintiff files a claim against the estate in compliance with section 9390. (§ 554, subd. (b).) If neither condition of subdivision (b) is satisfied, a plaintiff may only recover from the insurance policy.
Plaintiffs here made the decision not to amend their complaint to name the personal representative of the Estate, and instead made the conscious choice to proceed against the insurance policy. The consequence is that their “judgment . . . is enforceable only from the insurance coverage and not against property in the estate.” (Prob. Code, § 554, subd. (a), italics added.) Had plaintiffs sought to include the Estate’s personal representative and filed a claim against the Estate, they could have perfected their claim against “property in the estate.” (§ 554.)
We are not addressing the question of whether there might be provisions in the insurance policy, other than the liability provision, that could affect “insurance coverage” under Probate Code section 554 and that might allow for recovery of costs and fees. The record here does not contain a copy of the insurance policy in effect and no insurance company for Dr. Hopkins’s estate is a party in this case.
Pilimai v. Farmers Ins. Exchange Co. (2006) 39 Cal.4th 133, which was decided while this case was on appeal, does not alter our conclusion. In Pilimai, an insured and his insurer entered into arbitration with his insurer over underinsured motorist coverage. (Id. at p. 137.) The insured served a Code of Civil Procedure section 998 offer to compromise on the insurer, who did not accept. (Ibid.) The insured obtained an award in excess of the offer and of his insurance coverage. In moving to confirm the award, the insured argued that she should have judgment in the amount of the policy limits, plus costs of suit and prejudgment interest based on Code of Civil Procedure section 998 and Civil Code section 3291. (Ibid.) The insurer argued that such penalties would not be imposed because Insurance Code section 11580.2, subdivision (p)(4) provided that the insurance company’s “maximum liability . . . shall not exceed the insured’s underinsured motorist coverage limits.” (Pilimai, supra, at p. 38.) The Supreme Court held that the statute’s “maximum liability” language limited the insurer’s liability arising out of the insured’s automobile use, but did not “exempt the insurer . . . from the obligation to pay costs arising out of its behavior as a litigant” in rejecting the settlement offer. (Id. at p. 144, italics added.) The court held, therefore, that costs under Code of Civil Procedure section 998 could be imposed against the insurer, even if those costs, “in addition to the damage award, would exceed the insurance policy’s maximum coverage.” (Pilimai, supra, at p. 145.)
Unlike Pilimai, the Estate’s insurer is not a party to this action. Nor was any offer made to the insurer pursuant to section 998 of the Code of Civil Procedure. Thus, the insurance company could not have accrued an obligation to pay costs “arising out of its behavior as a litigant.” (Pilimai v. Farmers Ins. Exchange Co., supra, 39 Cal.4th at p. 144, italics added.) The liability imposed against the Estate pursuant to section 998 was that of Dr. Hopkins, not his insurer. (Cf. Smith v. Interinsurance Exchange (1985) 167 Cal.App.3d 301, 304 [“liability [under Probate Code section 554’s predecessor] remains the decedent’s, not the insurer’s”].) Plaintiffs should not be allowed to penalize the insurer -- who was not a party to this lawsuit -- for conduct the insurer did not engage in as a litigant.
Nor do we agree with plaintiffs that our conclusion overrides the aims of Code of Civil Procedure section 998 or the California Constitution. Probate Code section 554 does not bar a plaintiff from recovering prejudgment interest, expert witness fees, or costs. It merely confines a plaintiff’s “judgment” to the limits of insurance when the plaintiff elects to proceed under subdivision (a) of section 554 of the Probate Code rather than against the personal representative. Other plaintiffs, who recover damage awards that, combined with Code of Civil Procedure section 998 fees and prejudgment interest, total less than the limits of available insurance, will not have their judgments reduced. Applying the Estate’s example, a plaintiff in a case involving an applicable insurance policy with $1 million limits, offers to settle for $250,000. The jury ultimately returns a verdict of $500,000. In that case, the judgment of $500,000 in damages plus the Code of Civil Procedure section 998 penalties and other charges would fall below the coverage limits. Thus, the settlement incentives of section 998 remain intact even though the plaintiff elected to proceed under Probate Code section 554 against the insurance policy. The trial court’s application of Probate Code section 554 here was correct.
As the result of our conclusion here, we need not address the Estate’s contention that the trial court could not have imposed penalties under Code of Civil Procedure section 998 because plaintiffs’ settlement offer was made to Dr. Hopkins only and not to the Estate.
2. The calculation of the award to plaintiffs was not erroneous
Plaintiffs next contend that any recalculation of the judgment must credit the Estate with one-half, rather than all, of the settlement of Mr. Hernandez’s worker’s compensation claim. There was no error.
Subdivision (a) of section 877 of the Code of Civil Procedure provides that a pretrial settlement made in good faith to one tortfeasor “shall reduce the claims against the others in the amount stipulated by the release” with respect to economic damages only. (Civ. Code, § 1431.)
Code of Civil Procedure section 877 reads in relevant part: “Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect: [¶] (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater.”
The jury’s verdict totaled $4.2 million, of which $3 million or 71.4 percent was for non-economic damages and $1.2 million or 28.6 percent was for economic damages. Plaintiffs received settlements totaling $1.3 million, including the $300,000 from the worker’s compensation insurer. The jury fixed the Estate’s share of responsibility for Mr. Hernandez’s injuries at 50 percent. The trial court then calculated 28.6 percent of those settlements, or $371,800 and subtracted that amount from the jury’s economic award. Thus, where 28.6 percent of K & P’s settlement or $85,000, was credited against the economic damages award, the trial court did not err.
DISPOSITION
The judgment is affirmed. Each party is to bear its own costs on appeal.
We concur: KLEIN, P. J., CROSKEY, J.
Civil Code section 3291 reads in relevant part: “If the plaintiff makes an offer pursuant to Section 998 of the Code of Civil Procedure which the defendant does not accept prior to trial or within 30 days, whichever occurs first, and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff’s first offer pursuant to Section 998 of the Code of Civil Procedure which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment.”