Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEALS from a judgment and order of the Superior Court of San Diego County, William S. Cannon, Judge. Super. Ct. No. GIS16519
AARON, J.
I.
INTRODUCTION
Marie Licerio (Marie) slipped on liquid soap that was on the floor at a store owned by Costco Wholesale Corporation (Costco), and fell, injuring herself. Marie and her husband Paul Licerio (Paul) filed a complaint against Costco. Marie brought a negligence claim and Paul brought a loss of consortium claim premised on Costco's alleged negligence. A jury returned a special verdict finding that Costco had not been negligent in the management of its store. The trial court entered judgment in favor of Costco. Costco subsequently filed a memorandum of costs in which it sought, among other costs, its expert witness fees pursuant to Code of Civil Procedure section 998. The trial court denied Costco's request for recovery of the expert witness fees.
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
A trial court may exercise its discretion to award a defendant its reasonable expert witness fees pursuant to section 998, subdivision (c)(1) in cases in which the defendant makes a reasonable settlement offer to the plaintiff and the plaintiff thereafter fails to obtain a more favorable judgment.
The Licerios appeal the judgment. The Licerios raise a number of claims related to alleged discovery abuses committed by Costco. In addition, the Licerios claim that the trial court erred in denying their motion in limine to preclude Costco from offering the testimony of its liability expert witness. Costco appeals the trial court's post judgment order denying it recovery of its expert witness fees. Costco claims the trial court erred in determining that there was not a reasonable prospect that the Licerios would accept Costco's section 998 settlement offers.
We affirm the judgment and the trial court's post judgment costs order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The incident and the Licerios' complaint
On July 27, 2002 at 2:35 p.m., Costco employee Perla Miranda began a floor walk inspection of the Costco store in Chula Vista. It generally took Miranda approximately 40 minutes to complete a floor walk inspection. Miranda did not discover any spills on the floor near the cash registers during her inspection. After performing the inspection, Miranda completed a floor walk inspection form, and a Costco manager initialed the form. At approximately 3:45 that afternoon, Marie slipped on liquid soap that had been spilled on the floor at the front end of the store near the cash registers, and fell, injuring herself.
In July 2003, the Licerios filed a complaint against Costco. Marie alleged that Costco had been negligent in the maintenance of its premises and that Costco's negligence caused her to suffer damages including medical expenses and loss of earnings. Paul brought a loss of consortium claim in which he claimed that Costco's negligence had deprived him of Marie's love and companionship.
The complaint also contained a cause of action for breach of an implied in fact contract, which was dismissed prior to trial.
B. Discovery proceedings
In October 2003, the Licerios served Costco with a request for production of documents. In their request, the Licerios sought, "Any and all photographs, videos or slides of the accident scene or of any of plaintiff's injuries." In December 2003, Costco served the Licerios with a verified response that stated in relevant part, "A diligent search and reasonable inquiry has been made in an effort to locate items demanded in this request. Responding party is not in possession, custody or control of any documents responsive to this request."
In December 2004, the Licerios served Costco with a notice of deposition for three of Costco's employees. The Licerios requested that the deponents bring various documents to the depositions including, "Any and all photographs, videos or slides of the accident scene or of any of plaintiff's injuries." It is undisputed that the deponents did not produce any such photographs at their depositions. One of the deponents, Marcela Unanua, testified at her deposition that she had not attempted to locate any photographs.
In March 2005, Costco's counsel, Pamela Wallach, sent the Licerios' counsel a letter in which she stated,
In May 2005, Wallach sent the Licerios' counsel a letter stating,
"It was our intention, as mentioned in our March 17, 2005 letter to provide you with a verified statement that the photographs and other outstanding documents requested in the request for production of documents that accompanied the deposition notices have not been located after diligent efforts were made to find them. We asked Costco to make a secondary search of the premises before we provided you with this document, and just recently, an individual at Costco Chula Vista conducted a second search of the premises and was able to find a copy of two [P]olaroid photographs attached to a copy of the incident report filled out by Marie Licerio on July 27, 2002. We previously provided you with a copy of the incident report. Enclosed is a copy of the photographs."
It is not clear from the record what the photographs actually depicted. Although the photographs were admitted in evidence at trial, the Licerios' counsel has not transmitted them to this court. (See Cal. Rules of Court, rule 8.224.) While there are copies of the photographs in the record, the quality of the copies prevents this court from determining what the photographs depict. In any event, because we conclude that the Licerios' claims involving the photographs fail irrespective of what the photographs actually depict (see part III.A.1-4., post), we assume for purposes of this decision that one of the photographs (exhibit 57) depicts the spill and shows track marks, presumably from a grocery cart, that passed through the spill.
At trial, there was conflicting testimony as to whether the photographs depicted track marks that existed prior to the spill or track marks that were caused by "traffic" moving through the spill.
C. Motions in limine
Costco filed a motion in limine in which it sought an order precluding the Licerios from offering in evidence Wallach's letters and from calling Wallach as a witness to provide testimony regarding the letters. Costco argued that the letters and Wallach's testimony should be excluded as irrelevant because there was no evidence that Costco had willfully suppressed the photographs. Costco contended that the letters were of the type that "commonly occur in civil litigation," and noted that Costco produced the photographs more than eight months before the trial began. Costco also argued that the court should exclude the proffered evidence pursuant to Evidence Code section 352, as unduly prejudicial. Costco claimed that the Licerios were attempting to "embarrass Costco and somehow imply that Costco sought to hide the two identified photographs." In addition, Costco argued that the letters and Wallach's testimony should be excluded since they were protected by the attorney client privilege.
In their opposition to Costco's motion, the Licerios claimed that the proffered evidence was not protected by the attorney client privilege. In addition, the Licerios claimed that the letters were "highly relevant to highlighting to the trier of fact the importance of the photograph and why Costco did not produce it for over eighteen months after being asked to do so in formal discovery propounded on it back in October 2003, and repeatedly since then." The Licerios argued that the letters were relevant to demonstrate the lack of veracity and/or lack of diligence of Ms. Unanua in attempting to locate the photographs. In addition, the Licerios claimed that the letters were relevant to establish why Marie testified at her deposition that she did not recall having seen track marks in the spill. The Licerios claimed that Costco's failure to timely produce the photographs prevented Marie from "refresh[ing] her recollection," as to the accident scene and hampered their ability to effectively depose Costco's employees. In addition, the Licerios argued that the letters were relevant to demonstrate that Costco had failed to "honor[] its basic discovery obligations."
The Licerios further claimed that they were entitled to introduce Wallach's letters in evidence pursuant to section 2030.310, which governs the admissibility of a party's responses to interrogatories. Finally, the Licerios argued, "[W]ith regard to willful suppression, it is pretty clear that Costco made no attempt to produce the photograph although its own witnesses were privately looking at it."
The Licerios also claimed that Costco's failure to produce a floor walk form from the day of the accident or to identify two employees who performed floor walks on the day of the accident in a timely manner supported the Licerios' claim of willful suppression of evidence.
In granting Costco's motion, the court stated:
"In my estimation, the documentation, while it may have been at the beginning of the case respecting an indication that maybe they didn't have those items, when they did have them, which is almost two years ago now, they've given them to you. I don't see any reason to raise that issue."
Thereafter, the following colloquy occurred:
"The court: She can explain that then also.
"The court: Yes. I assume we're not going to have anyone come in and testify with regard to that.
"The court: All your interrogatory responses can be used for any reason then."
D. Costco's section 998 offers, the jury trial, verdict, judgment and post judgment cost order
In February 2005, Costco served Marie and Paul with offers of compromise pursuant to section 998. Costco offered to settle Marie's claim for "Five Hundred dollars ($500), with each party to bear their own costs and attorney's fees." Costco offered to settle Paul's claim for "a waiver of costs." Neither Marie nor Paul accepted the offers.
A jury trial on the Licerios' claims took place in January 2006. The jury returned a special verdict in favor of Costco. The jury determined that Costco had not been "negligent in the management of the premises in question." In February 2006, the trial court entered judgment in favor of Costco.
Costco subsequently filed a memorandum of costs in which it sought, inter alia, recovery of $23,805.75 in expert witness fees, pursuant to section 998. The Licerios filed a motion to tax costs. In their motion, the Licerios argued that the trial court should not award Costco any expert witness fees because Costco had not made a settlement offer that had a reasonable prospect of being accepted. The trial court ruled that Costco had not made a reasonable settlement offer within the meaning of section 998, and denied Costco recovery of its expert witness fees.
III.
DISCUSSION
The manner in which the Licerios' brief is organized makes it difficult for this court to determine the precise claims that they intend to raise. The argument portion of the brief delineates five claims of error, by way of separate headings. Accordingly, we interpret the Licerios' brief as raising these five claims. (Cal. Rules of Court, rule 8.204 [requiring each brief to "[s]tate each point under a separate heading or subheading summarizing the point"].) We address the claims in the order in which they are presented in the Licerios' brief.
1. The trial court did not preclude the Licerios from introducing Costco's verified discovery response
The Licerios claim that the trial court erred in preventing them from introducing in evidence Costco's initial discovery response in which Costco stated that it did not possess any photographs of the accident scene.
a. Additional factual and procedural background
During the trial, while examining Ernesto Molina, the front-end manager of the Costco store on the day of the accident, the Licerios' counsel stated the following:
Molina responded in the affirmative. The Licerios' counsel then asked Molina whether he had taken the photograph that was marked as exhibit 57. Molina again responded in the affirmative. The Licerios' counsel asked Molina whether he had been asked to produce the photograph at his deposition, and Molina replied that he did not recall. The Licerios' counsel then stated that he would help Molina refresh his recollection. Molina responded "Okay." Costco's counsel requested a sidebar conference during which the following colloquy occurred:
"[Costco's counsel]: This was a subject of a motion in limine.
"[Licerios' counsel]: Your honor, what was excluded was the admission that we wanted to get but this gentleman appeared at his deposition and didn't produce the photograph. He took the photograph.
"[Licerios' counsel]: Let me get some clarification. I certainly want to be on the right side of the court. However, can I go with ─
"[Licerios' counsel]: Let me back off. I didn't read it that way. I thought you wouldn't let us have it as sort of a jury instruction on willful suppression but the point I would make is that without his photograph and his deposition, I couldn't even question him."
b. The record does not indicate that the trial court prevented the Licerios from introducing Costco's discovery response in evidence
The trial court's comments at side bar are ambiguous with respect to precisely what the trial court intended to preclude the Licerios' counsel from asking Molina or offering in evidence. Given the trial court's agreement with Costco's counsel that the issue had been the subject of a motion in limine, the Licerios' counsel may have intended to refresh Molina's recollection with Wallach's letters. The record is clear that the trial court did not state that it would not allow the Licerios' counsel to introduce Costco's discovery responses. Nor did Costco seek in any of its motions in limine to preclude the Licerios from introducing Costco's discovery response. On the contrary, in the trial court's in limine rulings, the court expressly authorized the Licerios to introduce Costco's discovery responses in evidence. Further, the Licerios' counsel read the relevant discovery response to the jury just prior to the sidebar conference at issue. The Licerios' counsel never sought clarification as to the scope of the trial court's sidebar ruling, nor did the Licerios ever seek to introduce in evidence any of Costco's verified discovery responses.
In presenting this claim, the Licerios' refer in their appellate brief to a host of other discovery matters, often without proper citation to the record. For example, the Licerios refer to Costco's purported failure to identify various employees in response to interrogatory requests and Costco's alleged initial failure to produce its floor walk form for the day of the accident. However, the only alleged error the Licerios present with respect to this claim is the trial court's sidebar ruling. The trial court's sidebar ruling cannot reasonably be interpreted to relate to these other discovery matters. Therefore, we restrict our analysis to the actual claim presented in the Licerios' brief, namely the trial court's alleged error in precluding the Licerios from introducing Costco's initial discovery response concerning its possession of photographs of the accident scene.
Under these circumstances, we conclude that the Licerios have failed to demonstrate that the trial court prevented them from introducing Costco's verified discovery response in evidence. (See, e.g., People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084 ["Appellant bears the burden to provide a record on appeal which affirmatively shows that there was an error below and any uncertainty in the record must be resolved against appellant"].)
In light of our conclusion, we need not consider whether the trial court would have erred if it had precluded the Licerios from introducing Costco's verified discovery responses in evidence.
2. The trial court did not abuse its discretion in precluding the Licerios from offering Wallach's letters in evidence and preventing the Licerios from calling Wallach as a witness at trial
The Licerios claim that the trial court erred in precluding them from offering Wallach's letters in evidence and in preventing them from calling Wallach as a witness at trial. We apply the abuse of discretion standard of review to this claim. (See, e.g., San Lorenzo Valley Community Advocates for Responsible Educ. v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1414 [appellate court "'examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question' [citation]"].)
As noted in part II.C., ante, the trial court granted Costco's motion in limine to preclude the Licerios from introducing in evidence letters from Attorney Wallach regarding Costco's discovery of photographs of the accident scene and testimony pertaining to those letters. We interpret the trial court's ruling that the letters did not "add anything to [the Licerios'] case," as excluding the evidence on relevancy grounds.
"'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "No evidence is admissible except relevant evidence." (Evid. Code, § 350.)
On appeal, the Licerios claim that the evidence at issue was relevant because it demonstrated "Costco's changing story and the falsity of that story, supports the inference Costco knew the photograph established notice, [was] necessary to explain the context of [Marie's] deposition testimony, and called into question Costco's respect for the oath under the penalty of perjury and/or diligence of not only Costco, but also its Front End Manager, Mr. Molina, and it's duty manager, Ms. Unanua, who both testified on its behalf at trial." In addition, the Licerios claim that the trial court's ruling precluded them from informing the jury that the Licerios had not had the opportunity to cross-examine Costco's witnesses at their depositions regarding the photographs. Finally, the Licerios assert that the evidence was highly relevant to their charge that Costco willfully suppressed evidence.
The Licerios also make a series of arguments pertaining to whether the excluded evidence was protected under the attorney client privilege. In light of the trial court's ruling excluding the evidence on relevancy grounds, we need not consider these arguments.
We interpret the Licerios' assertions that the letters demonstrated "Costco's changing story and the falsity of that story" and that Costco and its employees lacked respect for their discovery obligations as an argument that the letters supported the inference that Costco willfully suppressed evidence. We reject that claim. On their face, the letters do not support the inference that Costco willfully suppressed evidence. Further, as discussed more fully in part III.D., ante, the Licerios have presented no other evidence to support their claim that Costco willfully suppressed evidence. Similarly, the letters do not support the inference that Costco knew that the photographs established that it had notice of the spill.
In addition, the trial court expressly ruled that Marie was free to explain to the jury that she was deposed without the benefit of having seen the photographs, and that having not seen the photographs, she had a clearer recollection of the accident scene. The letters were thus not needed for this purpose. Further, the trial court could have reasonably concluded that the letters were not needed for the Licerios to establish that their counsel did not have the photographs at the time he deposed Costco's employees. Alternatively, the trial court could have reasonably concluded that this fact was irrelevant, given that the Licerios failed to demonstrate that they attempted to retake the depositions after Costco produced the photographs.
Accordingly, we conclude that the trial court did not abuse its discretion in precluding the Licerios from offering Wallach's letters in evidence and preventing the Licerios from calling Wallach as a witness at trial.
3. The Licerios did not have a statutory right to introduce Wallach's letters in evidence as amended interrogatory responses
The Licerios argue that they had a "statutory right under [sections] 2030.310 and 2030.410 to inform the trier of fact of Costco's initial discovery answers, and the subsequent answers contained in Wallach's March 17, and May 5, 2005 letters." Whether the Licerios had such a statutory right raises a question of law, which we review de novo. (See People v. Butler (2003) 31 Cal.4th 1119, 1127.)
The letter subject to the trial court's motion in limine was actually dated March 11, 2005.
In part III.A.1, ante, we rejected the Licerios' claim that the trial court precluded them from introducing Costco's initial discovery responses. We consider here whether the Licerios had a statutory right to offer Wallach's letters in evidence.
Section 2030.310 provides in relevant part:
Section 2030.410 provides:
Section 2030.210 outlines the format for a party's response to interrogatories:
"(1) An answer containing the information sought to be discovered.
"(3) An objection to the particular interrogatory.
"(c) Each answer, exercise of option, or objection in the response shall bear the same identifying number or letter and be in the same sequence as the corresponding interrogatory, but the text of that interrogatory need not be repeated."
The Licerios fail to make any argument as to why this court should conclude that letters from Costco's counsel to the Licerios' counsel constitute formal interrogatory responses provided under oath by Costco. Accordingly, we conclude that the trial court did not err in refusing to admit Wallach's letters in evidence as amended interrogatory responses.
4. The trial court did not err in failing to instruct the jury concerning willful suppression of evidence, pursuant to CACI No. 204
The Licerios claim the trial court erred in failing to instruct the jury pursuant to CACI No. 204. We apply the de novo standard of review to this claim. (See Sander/Moses Productions, Inc. v. NBC Studios, Inc. (2006) 142 Cal.App.4th 1086, 1094 ["Challenges to jury instructions are subject to a de novo standard of review"].)
In their brief, the Licerios style their claim as, "The Court Should Have Given the Jury CACI 204 to Let The Jury Evaluate Whether There Was Willful Suppression and Should Have Barred Evidence Costco Did Not Produce in Discovery." It is unclear from the Licerios' brief whether, in addition to their jury instruction claim, the Licerios claim that the trial court erred in allowing Costco to introduce at trial evidence that it purportedly did not timely disclose in discovery. We conclude that any such claim is forfeited because in presenting this claim, the Licerios do not address the trial court's order denying their motion in limine to preclude Costco from offering at trial evidence it purportedly failed to properly produce during discovery. (See, e.g., People v. Akins (2005) 128 Cal.App.4th 1376, 1385 ["It is axiomatic that it is the burden of the appellant to provide an adequate record to permit review of a claimed error, and failure to do so may be deemed a waiver of the issue on appeal"].) Accordingly, we limit our analysis to the Licerios' claim that the trial court erred in failing to instruct the jury pursuant to CACI No. 204.
a. Factual and procedural background
In their January 2006 joint trial conference readiness report, the parties stated that the "plaintiff wants, but defendant objects," to the giving of CACI No. 204.
In January 2006, Costco filed a motion in limine to preclude the Licerios from offering evidence related to Attorney Wallach. In its motion, Costco argued that there was insufficient evidence of willful suppression to warrant a jury instruction on the issue. Costco argued that the fact that it had initially misplaced photographs of the accident scene did not warrant the giving of such an instruction. Costco further claimed that a delay in production did not constitute evidence of willful suppression, and noted that it had produced the photographs in question more than eight months prior to trial.
In opposing Costco's motion, the Licerios claimed that Costco had failed to timely produce both the photographs and a floor walk form from the day of the accident. The Licerios also claimed that Costco failed to identify two of its employees as witnesses in response to the Licerios' discovery requests. The Licerios stated "If the court is not inclined to grant Plaintiffs' Motion in Limine No. 2 it should . . . let the trier of fact decide if that is willful suppression, or mere inadvertence or sloppiness. That is CACI instruction 204 that plaintiffs have proposed and Costco has opposed." The court granted Costco's motion in limine to preclude the Licerios from introducing evidence relating to Attorney Wallach.
The Licerios filed a motion in limine (No. 2) in January 2006 in which they again argued that Costco had failed to timely produced the photographs in question. The Licerios also claimed that Costco had failed to produce its floor walk form from the day of the accident in response to the Licerios' request for production of documents. The Licerios further claimed that Costco had failed to identify two of its employees in response to an interrogatory that asked Costco to identify all witnesses to the incident. The Licerios argued that Costco should be precluded from introducing the floor walk form in evidence and from calling either of the two Costco employees as witnesses at trial.
In its opposition to the Licerios' motion, Costco argued that none of the requests contained in the Licerios' initial request for production could have reasonably been construed to have required Costco to produce its floor walk form. Further, Costco had produced the floor walk form in March of 2005 in response to the Licerios second request for production, which expressly sought "records of floor walkers."
With respect to the disclosure of its employees' identities, Costco argued that the Licerios had failed to attach to their motion in limine the relevant interrogatories that purportedly sought such disclosure. In addition, Costco noted that the relevant form interrogatory had asked Costco to disclose the name of anyone having "knowledge of the INCIDENT," and asserted that neither of the employees had any knowledge of Marie's slip and fall. Both of the employees at issue were floor walkers on the day of the incident, and were not eyewitnesses to the slip and fall. Further, the Licerios failed to check any box on the relevant form interrogatory that would have provided a definition of the term "incident." Costco also noted that it had identified and produced both employees for deposition seven months prior to trial.
With respect to the photographs, Costco acknowledged that it had initially failed to locate the photographs, and attributed this failure to the closing of the store at which the accident occurred. However, Costco noted that it ultimately did locate the photographs and that it provided the photographs to the Licerios more than eight months before trial. Costco reiterated that there were no grounds for an instruction regarding willful suppression of evidence. The trial court denied the Licerios' motion.
During the trial, outside the presence of the jury, the court held a jury instruction conference with counsel for the parties. The record does not contain a reporter's transcript of this conference. The trial court did not instruct the jury pursuant to CALJIC No. 204.
It is not clear from the record whether the jury instruction conference was recorded.
b. Governing law
"'[A] party is entitled to have the jury instructed as to his theory of the case provided (1) that he requests and submits legally correct instructions, and (2) that there is sufficient evidence to support the theory.' [Citation.]" (Thompson Pacific Const., Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 547.)
CACI No. 204 provides: "You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party."
"[I]t is prejudicial error to instruct the jury on wi[l]lful suppression of evidence when there is no evidence to support the instruction. [Citation.] However, . . . a [will]ful suppression instruction does not require direct evidence of fraud." (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 992, disapproved on another ground by Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664.)
c. The Licerios did not present sufficient evidence of willful suppression to warrant a jury instruction on the issue
The Licerios claim that Costco's failure to timely produce the photographs of the accident scene warranted giving the instruction. To begin with, CACI No. 204 appears to be warranted only in those instances in which the evidence at issue is not actually produced at trial; the instruction informs the jury that the jury "may decide that the evidence would have been unfavorable to that party." If the trial court had instructed the jury pursuant to an unmodified version of CACI No. 204 in this case, the instruction would likely have confused the jury, because the photographs in question were introduced as evidence at trial.
We assume for purposes of this decision that the Licerios have demonstrated that they requested that the court instruct the jury pursuant to CACI No. 204.
There is no indication in the record that the Licerios requested that the court give a modified version of CACI No. 204.
Even assuming that it might be appropriate to give CACI No. 204 in a case in which a party temporarily intentionally suppressed evidence, the Licerios have identified no evidence to support the inference that Costco willfully suppressed the photographs. We are not persuaded by the Licerios assertion, unsupported by any citation in the record, that Attorney Wallach's explanation for the delay in producing the photographs "is patently irreconcilable with the truth [because] the warehouse store where Ms. Licerio fell closed in October 2004, some seven months before Ms. Wallach conveyed that a secondary search was done of those premises." Assuming that Wallach's reference in her May 2005 letter to a "secondary search," implies that the photographs were located in the old Costco store, the Licerios have not presented any evidence that Costco did not have access to these premises in October 2004, even if the store was not open to the public at that time. In short, the Licerios have pointed to nothing in the record that substantiates their claim that the explanation for Costco's failure to initially locate the photographs was "entirely bogus" and "deliberately false."
The Licerios also claim that the instruction was warranted because Costco failed to timely identify or produce its floor walk form and failed to timely identify its employees who performed floor walks on the day of the accident. For the reasons outlined above, we question whether a purported failure to timely produce evidence that was eventually produced and that was introduced at trial could ever warrant the giving of an unmodified version of CACI No. 204. In any event, neither purported discovery abuse warranted an instruction regarding the willful suppression of evidence because the Licerios have failed to demonstrate either that they requested the floor walk form in their initial request for documents, or that they requested the identification of the relevant Costco employees in their initial set of interrogatories.
Finally, the Licerios claim that they were entitled to have the trial court instruct the jury pursuant to CACI No. 204 because Costco failed to produce its written report of its investigation of the accident and its current procedures and practices handbook. However, the Licerios did not provide the trial court with an opportunity to determine whether the Licerios requested the documents and whether Costco in fact failed to produce the documents as requested. Further, the record does not indicate that the Licerios informed the trial court that these alleged abuses warranted giving CACI No. 204. Thus, the trial court did not err in refusing to instruct the jury regarding Costco's alleged willful suppression of its written report of the investigation into the accident and its current procedures and practices handbook.
5. The trial court did not abuse its discretion in denying the Licerios' motion in limine to preclude Costco from offering the expert testimony of Peter Zande
The Licerios claim that the trial court erred in denying their motion in limine to preclude Costco from offering the expert testimony of Peter Zande because, they maintain, Zande was not qualified to offer expert testimony in this case. "A reviewing court will uphold the trial court's ruling on the question of an expert's qualifications absent an abuse of discretion." (Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1319-1320.)
The Licerios also claim that Zande's opinion lacked a proper foundation because it was based on "selected deposition testimony of Costco personnel." The Licerios did not present this argument to the trial court. Therefore, we will not consider such a claim in this court. (Evid. Code, § 353.)
Costco filed an expert witness declaration stating that Zande was expected to testify as "to issues relating to policies and procedures, standard of care, operations, and other liability causation issues." The Licerios filed a motion in limine to preclude Costco from offering Zande's testimony as an expert witness. The Licerios argued that Zande was "not qualified to render any opinions on policies and procedures or the industry standard for grocery/retail/warehouse stores."
After the Licerios deposed Zande, they filed a supplemental brief in which they argued the following:
noThe Licerios provided the court with excerpts from Zande's deposition to support these assertions.
Costco filed an opposition to the Licerios' motion together with a declaration from Zande outlining his qualifications. According to his declaration, Zande is a certified safety professional "with more than 27 years of practical experience in accident prevention techniques, theory and application." Zande has a bachelor of science degree in safety management and earned a certificate in occupational safety from the University of California, Irvine. Zande holds professional memberships in the American Society of Safety Engineers and the International Code Council. Zande worked as a forensic expert in the field of safety and accident prevention and has testified in more than 150 California proceedings. He has worked professionally evaluating corporate policies regarding customer safety in retail settings for Target. Zande worked in the field of occupational safety at Steelcase, Inc., Ford Aerospace Communications Corporation, and Ford Motor Company. The trial court denied the Licerios' motion.
Evidence Code section 720 provides:
"(b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.
Zande has significant educational, occupational, and forensic experience in the field of occupational safety. The fact that Zande does not have managerial experience or significant personal experience in a retail environment does not render him unqualified to offer expert testimony in this case.
We conclude that the trial court did not abuse its discretion in denying the Licerios' motion in limine to preclude Costco from offering Zande's expert testimony.
In light of our conclusion, we need not consider Costco's claim that the Licerios have forfeited this contention by failing to demonstrate in their opening brief how they were prejudiced.
B. Costco's appeal
Costco claims that the trial court erred in granting the Licerios' motion to tax Costco's claim for expert witness fees as costs under section 998.
1. Factual and procedural background
After the jury returned a special verdict in favor of Costco, the trial court entered judgment in favor of Costco. Costco subsequently filed a memorandum of costs in which it sought to recover, among other costs, $23,805.75 in expert witness fees. The Licerios filed a motion to tax costs. In their brief in support of the motion, the Licerios argued that the trial court should not exercise its discretion to award Costco any expert witness fees as costs pursuant to section 998 because Costco's section 998 offers did not have a reasonable chance being accepted. Costco filed an opposition in which it claimed that it was entitled to an award of expert fees as costs, under section 998. Costco argued that its section 998 offers were reasonable offers to compromise in light of its good faith belief that it was not liable for the Licerios' injuries. Costco contended that the jury's verdict constituted prima facie evidence of the reasonableness of its offers. In their reply, the Licerios argued that Costco's offers were not reasonable considering the Licerios' substantial damages, and the uncertainty as to whether Costco would be found liable.
Costco's memorandum of costs is not in the record on appeal. However, the trial court's order granting in part the Licerios' motion to tax costs states that Costco sought $23,805.75 in expert witness fees as section 998 costs.
On June 2, 2006, the trial court issued a tentative order on the Licerios' motion to tax costs. The order stated in relevant part:
Jones v. Dumirchob Jones IdThe trial court subsequently heard oral argument on the motion. The Licerios' counsel argued that Costco's section 998 offers were not made in good faith because the offers did not have a reasonable prospect of being accepted. After the Licerios' counsel finished presenting oral argument, the trial court stated that the court had been under the impression that Costco's section 998 offer was $5,000. The Licerios' counsel clarified that the offer was for $500, not $5,000. In response, the trial court stated to Costco's counsel, "I think that makes a difference, counsel. Tell me why that's not an unreasonable offer." Costco's counsel argued that at the time the offers were made, both parties were aware that there was considerable evidence tending to show that Costco was not likely to be found liable. At the close of argument, the trial court stated that it was "going to reevaluate the [$]500 versus $5,000 to see if I feel that's an adequate offer to trigger the costs for the expert witnesses."
Although not expressly stated, it is clear that the court was referring to Costco's section 998 offer to Marie.
On June 6, the trial court entered a final order on the Licerios' motion to tax costs. That order states in relevant part:
"The circumstances here stand in sharp contrast to the facts in Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704 [(Culbertson)]. The plaintiff in that case fell off [a] ladder manufactured by defendant and suffered a ruptured inter vertebral disc. Plaintiff made a settlement demand of $1.5 million. The appellate court found the defendant's $5,000.00 offer one month before trial was in good faith and could even be considered 'generous.' There was clear evidence that would exonerate defendant from liability, namely that the employer had modified the ladder. Defendant also had extensive evidence showing plaintiff's damages were not as severe as claimed, including undercover films showing plaintiff engaging in strenuous activities. Here, [Costco's] belief that it would not be found liable was founded more on hopeful speculation than on concrete evidence."
2. Governing law
Section 998 provides in relevant part:
[¶] . . . [¶]
In Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1024-1025 (Arno), the court explained that it is well established that a party may not recover expert witness fees under section 998 unless that party made a good faith settlement offer that had a reasonable possibility of being accepted:
"Normally . . . a token or nominal offer will not satisfy this good faith requirement, . . . .' [Citation.]" (Jones, supra, 63 Cal.App.4th at p. 1262.) "A plaintiff may not reasonably be expected to accept a token or nominal offer from any defendant exposed to [a substantial amount] of liability unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable." (Wear, supra, 121 Cal.App.3d at p. 821 [reversing award of expert witness fees to defendant who had offered to settle the case for $1].) The Wear court reasoned, "[I]f there is some reasonable possibility, however slight, that a particular defendant will be held liable, there is practically no chance that a plaintiff will accept a token or nominal offer of settlement from that defendant in view of the current cost of preparing a case for trial." (Ibid.)
The court noted that the plaintiff had been seeking a "substantial sum" and that the plaintiff had recovered $18,500 in damages against a second group of defendants. (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821 (Wear).)
Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 55, 62 (Pineda), provides such an example. In Pineda, the plaintiff sought $10 million dollars in damages in a wrongful death action. The defendant made a section 998 offer of $2,500 to settle the case. (Pineda, supra, 112 Cal.App.3d at p. 62.) The Pineda court concluded that the trial court had not abused its discretion in denying the defendant recovery of its expert fees on the ground that the offer was not reasonable. (Id. at p. 63.) The Pineda court reasoned, "Although [defendant's] liability was tenuous indeed, having in mind the enormous exposure the trial court could find that [the defendant] had no expectation that its offer would be accepted." (Id. at p. 63.)
However, "[e]ven a modest or 'token' offer may be reasonable if an action is completely lacking in merit." (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 134 (Nelson).) For example, in Culbertson, supra, 190 Cal.App.3d 704, the court concluded that the trial court had not abused its discretion in awarding expert fees pursuant to section 998 in a case in which the plaintiff had sought a settlement of $1.5 million and the defendant had made a section 998 offer of $5,000. The Culbertson court noted that the defendant's discovery had produced considerable evidence tending to show that the defendant was unlikely to be found liable at trial. The Culbertson court stated, "Under the circumstances of this case, the $5,000 offer could be deemed to be generous." (Culbertson, supra, 190 Cal.App.3d at p. 712.)
A trial court determines the reasonableness of a party's offer by considering how well it approximates the amount the party will have to pay if found liable after "discount[ing] the probability of success of the claim.. . . ." (Thompson v. Miller (2003) 112 Cal.App.4th 327, 339, fn. 4 (Thompson).) The trial court must base its reasonableness determination on information that was known or reasonably should have been known to both the defendant and the plaintiff. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699 (Elrod).) "When a party obtains a judgment more favorable than its pretrial offer, it is presumed to have been reasonable and the opposing party bears the burden of showing otherwise." (Thompson, supra, 112 Cal.App.4that pp. 338-339.)
"Whether a section 998 offer was reasonable and made in good faith is left to the sound discretion of the trial court." (Nelson, supra, 72 Cal.App.4th at p. 134.) "An appellate court reviewing a section 998 offer may not substitute its opinion for that of the trial court unless there has been a clear abuse of discretion, resulting in a miscarriage of justice." (Arno, supra, 130 Cal.App.4th at p. 1025.) "'The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power." [Citations.]' [Citation.]" (Nelson, supra, 72 Cal.App.4th 111 at p. 136.)
3. The trial court did not abuse its discretion in denying Costco recovery of its expert fees
In light of the foregoing case law, we must consider the likelihood that Costco would be found liable and the amount of damages the Licerios were likely to recover as compared to the amount of Costco's section 998 offers. Although this analysis is to be made by considering the parties' perceptions of the case at the time the section 998 offers were made (Elrod, Inc., supra, 195 Cal.App.3d at p. 699), Costco does not specifically address in its opening brief what the parties knew at the time it made its section 998 offers. For example, in its opening brief Costco refers to evidence the Licerios presented at trial with respect to damages. We assume for purposes of this decision that the parties' perception of these issues were not materially different at the time Costco made its section 998 offers and at the time of trial.
Costco incorrectly asserted in its opening brief that the trial court had ruled on its summary judgment motion by the time the section 998 offers were made, but corrected itself in its reply brief.
With respect to liability, the case boiled down to whether Costco had exercised reasonable care. (See Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1210 (Ortega) ["'[E]vidence that an inspection ha[s] not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it.' [Citation.]"].) In Ortega, the plaintiff sustained serious injuries after slipping on a puddle of milk at the defendant's store. (Id. at p. 1204.) "[E]ven though plaintiff did not present evidence of the length of time the milk was on the floor, the general manager, in fact, testified that the milk could have been on the floor for as long as two hours, and at best the floor was not inspected for 15 to 30 minutes." (Id. at p. 1210.) A jury returned a verdict in plaintiff's favor. In considering this evidence, the Ortega court stated, "the evidence of defendant's failure to inspect the premises within a reasonable period of time prior to the accident is indicative of defendant's negligence and creates a reasonable inference that the dangerous condition existed long enough for it to be discovered by the owner. (Id. at p. 1211.)
Costco acknowledges in its brief that this case revolved around "whether 25 minutes was sufficient time for Costco to have discovered the spilled soap." Costco states that it was within "the realm of reasonabl[e] possibilities that Costco would obtain a defense verdict." We agree. However, there also was a reasonable possibility that a jury would find Costco liable. Given these circumstances, the trial court did not abuse its discretion in determining that it was far from clear that Costco would be found not liable.
With respect to damages, the Licerios presented evidence at trial that Marie suffered damages including $186,178 in lost earnings and at least $16,198.78 in medical expenses. The Licerios also sought an unspecified amount of noneconomic damages. While Costco challenged the extent of these damages at trial, the trial court could have reasonably determined that the Licerios would have recovered substantial damages for lost earnings, medical expenses, and noneconomic damages if the jury had found Costco liable.
Costco treats the Licerios as a single plaintiff throughout its briefing and makes no argument pertaining to the separate section 998 offers it extended to Marie and Paul.
It appears that the Licerios may have offered additional evidence of medical expenses because during closing argument their counsel stated that they were seeking a total of $279,970 in economic damages. Part of these damages appear to be for additional past medical expenses not accounted for in the $16,198.78 as well as for future medical expenses. However, the Licerios do not cite to this evidence in their briefs. In any event, the difference is immaterial to our resolution of Costco's appeal.
Citing the waiver of costs provisions in its settlement offers, Costco argues that "the trial court should have considered Costco's offers to have been worth around $8,500." We assume for purposes of this decision that Costco's settlement offers were worth approximately $8,500. The question becomes whether, in light of Costco's significant potential exposure and its uncertain liability position, the trial court abused its discretion in determining that Costco's section 998 offer did not have a reasonable prospect of being accepted. Clearly it did not. While Costco's liability was far from certain, in view of its significant potential exposure, the trial court could have reasonably concluded that Costco's potential liability, even when discounted by the probability that Costco would prevail(Thompson, supra, 112 Cal.App.4th at p. 339), far exceeded the amount of its section 998 settlement offers. (See Pineda, supra, 112 Cal.App.3d at p. 63.)
Costco does not contend that the trial court should have included the amount of its expert witness fees ($23,805.75) in considering the value of its waiver of costs settlement offers.
We reject Costco's argument that the trial court inaccurately valued its section 998 settlement offers by failing to take into consideration the value of Costco's offer to waive costs. There is nothing in the trial court's order that suggests that the trial court failed to consider the value of such a waiver. The mere fact that the trial court stated at oral argument that at the time the section 998 offers were made, Costco had "virtually no costs," does not demonstrate that the court failed to consider the value of the waiver of costs contained in Costco's settlement offers.
Costco also argues, without citing any authority, that it was "completely improper" for the trial court to note that the jury returned a 9-3 verdict in favor of Costco in discussing the closeness of the liability issue. Costco's argument is without merit. The numerical breakdown of a verdict is a factor that a court may consider in determining the closeness of a case. (Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 380 [noting that among factors a court is to consider in determining whether error is harmless is "the closeness of the jury's verdict," and concluding error was harmful in case, where among other factors, "the verdict against the City was nine to three"]; Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 683 ["serious misconduct occurred in what may have been a close case (as suggested by the nine to three verdict)"].) In Culbertson, supra, 190 Cal.App.3d 704, a case Costco cites, the court noted the unanimous jury verdict in determining that the case was not a close one for purposes of determining the reasonableness of a section 998 offer. (Id. at p. 710, fn. 4.)
Costco also argues that the trial court's final order was "arbitrary and capricious" because the court's tentative ruling demonstrates that the court changed its ruling after it discovered that Costco's offer to Marie was $500, and not $5,000. Costco claims "the $4,500 difference between $5,000 and $500 was too small compared to what the Licerios claimed for damages to have actually served as a proper basis to alter the court's reasoning."
This court reviews the trial court's final order, not a speculative supposition of the trial court's reasoning garnered through consideration of the trial court's tentative ruling, its comments at oral argument, and its final order. While the trial court's comments at oral argument suggest that the court considered the $4,500 difference to be significant, the trial court's final order does not state that the $4,500 difference was determinative. Further, even assuming that the trial court considered a $4,500 difference to be determinative, we cannot say that such a conclusion would have constituted an abuse of discretion. In tentatively awarding Costco its expert witness fees, the trial court may have determined that Costco's offer was barely within the range of offers that had a reasonable prospect of being accepted, and that an offer that was $4,500 less was not within that range. Such reasoning would not have constituted an abuse of discretion.
We conclude that the trial court did not abuse its discretion in denying Costco recovery of its expert witness fees.
IV.
DISPOSITION
The judgment and the June 6, 2006 order are affirmed. Each party is to bear its own costs on appeal.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.