P. (F.) v. MONIER (To be called and continued to the September 2017 calendar.)

Appellant’s Petition for Review

Cal.February 19, 2014

SUPREME COURT FILED FEB 1.9 2014 IN THE SUPREME COURTOF CALIFORNIA Frank A. McGuire Clerk Deputy FP., No. Plaintiff and Respondent, 3 Civil No. C062329 VS. Sacramento County Superior Court Case No. 06AS00671 JOSEPH MONIER, Defendant and Appellant. PETITION FOR REVIEW After a decision of the Court ofAppeal, Third Appellate District Appeal from a Judgmentofthe Superior Court Ofthe State of California, County of Sacramento Honorable Robert Ahern, Judge JAY-ALLEN EISEN LAW CORPORATION JAY-ALLEN EISEN,California State Bar No. 042788 AARONS. McKINNEY,California State Bar No. 260630 2431 Capitol Avenue Sacramento, California 95816 Telephone: 916-444-6171 Facsimile: 916-441-5810 Attorneys for Defendant and Appellant Joseph Monier {00040568; 1} IN THE SUPREME COURT OF CALIFORNIA FP., No. Plaintiff and Respondent, 3 Civil No. C062329 VS. | Sacramento County Superior Court Case No. 06AS00671 JOSEPH MONIER, Defendant and Appellant. PETITION FOR REVIEW After a decision ofthe Court of Appeal, Third Appellate District Appeal from a Judgment of the Superior Court Ofthe State of California, County of Sacramento Honorable Robert Ahern, Judge JAY-ALLEN EISEN LAW CORPORATION JAY-ALLENEISEN, California State Bar No. 042788 AARONS. McKINNEY,California State Bar No. 260630 2431 Capitol Avenue Sacramento, California 95816 Telephone: 916-444-6171 Facsimile: 916-441-5810 Attorneys for Defendant and Appellant Joseph Monier (00040568: 1} TABLE OF CONTENTS TABLE OF AUTHORITIES ISSUES PRESENTED INTRODUCTION AND REASONS TO GRANT REVIEW A. Review is necessary to secure uniformity of decision on whether a failure to render a statement of decision on timely request is reversible error per se. 1. The court of appeal’s decision conflicts with this Court’s long- standing decisions. 2. The court of appeal’s decision conflicts with decisions from every appellate district, including the Third. B. Theissues are of statewide importanceincivil litigation. 1. This Court has repeatedly recognized the importance of and necessity for findings. 2. No existing authority treats the important issue of when and how a party may seek apportionment of damages based on comparative fault in a court trial. SUMMARYOF FACTS AND PROCEDURE ARGUMENT I THIS COURT HAS HELD, EXPRESSLY AND IMPLICITLY, THAT FAILURE TO RENDER FINDINGSIS PREJUDICIAL A. The Court has held in so many words that failure to make required findingsis prejudicial error. B. Even when not expressly stating the rule, the court has always treated failure to make findings as prejudicial error, holding it reversible perse. {00040584; 1} ili 12 12 12 13 C. The Court did not retreat from the rule of reversibility per se in Brown. . Il THE FAILURE TO ISSUE A STATEMENT OF DECISION WAS ACTUALLY PREJUDICIAL TO MONIER IN CUTTINGOFFHIS RIGHT TO SEEK APPORTIONMENT OF DAMAGES II MONIER DID NOT FORFEIT HIS RIGHT TO APPORTIONMENT OF DAMAGES CONCLUSION CERTIFICATION {00040584; 1} 15 18 22 24 25 TABLE OF AUTHORITIES Page(s) FEDERAL CASE Neblett v. Carpenter (1938) 305 US. 297, 59 S.Ct. 170, 83 L.Ed. 182 (1938) ....... 12, 13 CASES American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578.00. eesseccesseseeseesceececeecsessseseeseeseeseessessessesaeeneens 19 Baggs v. Smith (1878) 53 Cal. 88.0cccsecsecseessecsessessecssecssessecesnesseesseseseesaeeseseneenes 14 Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 CalApp.4th 135.cceeessecseeseeseecetsseesssessessessseeseeseesnees 8 Bowers and Gumbert v. Johns and Barker (1852) 2 Cal. 419.cccsecseeeseceseceeseseeesseessessaeestecseessesanssssseseeeeeeats 3 Breeze v. Doyle (1861) 19 Cal. LODeceeneeseesessececeseetseneesseecssessssseesseseeessseneeees 5,7 Carpenter v. Pac. Mut. Life Ins. Co. of Cal. (1937) 10 Cal.2d 307, affdow.cecccccseceestecssecsseesseessecsecsreescereens 12,18 Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780 oo cecccecscscssceescssestscessessesesscseecssesseseesseessecseeenesns 2 City of Vernon v. City ofLos Angeles (1955) 45 Cal.2d 710...eee csccsccsessecescseceeeesecssseessseesessesseesesseseesseesasens 13 Conradv. Ball Corp. (1994) 24 CalApp.4th 439.ccesessessseescesnesseesseessessecseesseeaes 7, 22 DaFonte v. Up-Right,Inc. (1992) 2 Cal.4th 593 oo cececsecsecesesesesseseesseeseeeseeesseessesseeseessessees 19, 20 De Burgh v. DeBurgh (1952) 39 Cal.2d 858... cececessceesecesseeseeseesseeeseeesssseecsseeseeeceaseeseens 4,14 iii {00040583; 1} Edgarv. Hitch (1956) 46 Cal.2d 309. cecessssscsscsesesesscscscsesssscecsesecsucecsacsvacavensaraees 13 Evangelatos v. Superior Court (1988) 44 Cal.3d L188... ccccccsesccseseescsscecscsesscscsesscsscscaseevscacevereees 20 Fairchild v. Raines (1944) 24 Cal.2d 818.00. ccccesesscscsesecsesscsessececsssesscssvsvsseecaeeas 4,14, 17 Frascona v. Los Angeles Ry. Corp. (1920) 48 CalApp. 135... cccccesesssssssessscsscssccsecscsecsesssescssssesecssessescasees 5.6 Garfield v. Knight's Ferry & Table Mountain Water Co. (1861) 17 Cal. S10.cceseeseesessesessssesesseesseesssseeessussesesesscacsevscseeesees 5 Gruendl v. Oewel Partnership,Inc. (1997) 55 CalApp.4th 654.0... cccccccesssssssesssesseecscseessssssssesecscssserscsssereeens 4 Guardianship of Brown (1976) 16 Cal.3d 326, 333... .ccccesscscsccseesesscsssesssecssssesesees 4,15, 16, 17, 18 Haffenegger v. Bruce (1880) 54 Cal. 416...ccccsssesessessesseseeeecsecsessesscssceecsecsesscescacasessesass 14 Hall v. Municipal Court (1974) 10 Cal.3d 641eecesessescssesssessessecsecsessesseeesessessesseseeseceseanes 6 Hoaglandv. Clary (1852) 2 Cal. 474occcceecscesesesessesesseseseeseresseecsecsesecessessesessesacsessueasaes 3 Hubbard v. San Diego Elec. Ry. Co. (1927) 201 Cal. 53... cic ceccccsesssesseseescssssessessecsessesscsscsecsscsessssssacsseseeevass 17 In re Marriage of Ananeh-Firempong (1990) 219 CalApp.3d 272.0... .ccccccccscssssessecsecsecscsssssssssesssvssesseaceeses 15, 16 In re Marriage of Arceneaux (1990) 51 Cal.3d 1130... cesssescessseeseessceecsecsessesecsssseerenssess 6, 15, 21 J.F. Lucey Co. v. McMullen (1918) 178 Cal. 425oeccecscseesseseesssesecesesecsscsesscssceessussecscsueseseasenees 3 James v. Haley (1931) 212 Cal. 142.ecccesesseseetesseseeeseesessesecsessessees 3, 4, 13, 14, 17 iv {00040583; 1} Jones v. Block (1866) 30 Cal. 227... cccccccsccsccssscsscsscesssesscessesesssarssesssescsecseassesseserees 5 Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384...cscccscssccecsesscesesessecavsesesssssees 7,22 Krum v. Malloy (1943) 22 Cal.2d 132.0... ccccccccccsscsscsecssceessecsesessseescessessesevsceseseseveeseaseeees 4 Kusel v. Kusel (1905) 147 Cal. 52... cccccscccscsscsseseessecesssccesscsscsucsscssessesetsutecseseess 3, 14 Le Francois v. Goel (2005) 35 Cal.4th 1094 oo.icccscssssccessecssessccsessecsessecsesesseess 7, 8, 23 McCurter v. Older (1985) 173 CalApp.3d 582.0... cccecccscescsscsssscsscsscsseescesecssessestsersceseaees 15 Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 CalApp.3d 1126.00...ccccceceecsesseesreceeeneeens 4,10, 11, 21, 22 Morrow v. Morrow (1962) 201 Cal.App.2d 235.0... cccecesscsssscsssscssssssssessscsscssseusecsecsecseereeers 4 Murphyv. Bennett (1886) 68 Cal. 528.eccessscsscsscsssccscssccscsssessesercsasersassuenseracans 5, 6, 14 Parker v. Shell Oil Co. (1946) 29 Cal.2d 503... cccccsssssscssscsessessssceecceesascesessessecsecresesenses 4,14 Phillips v. Phillips (1953) 41 Cal.2d 869.0...cccccccscscscsesscessssecsccssesseccssesssesecssesssessens 8, 23 R. E. Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal.App.3d 50.0... cece ccccssscsscessessccsscssessesessecsscrscsescsesseseaens 5 Russel v. Armador (1852) 2 Cal. 305... ccecccsscesscessessccseecesssrsesesseceaessevesecsusesecsussusessesees 3,5 Sacre v. Chalupnik (1922) 188 Cal. 386.0...cee cccsccscsssesccsssserssseceaecssessscascnsscssssassarsuseessens 17 San Jose Abstract & Title Ins. Co. v. Elliott (1952) 108 Cal.App.2d 793, superseded ........cccccceccceececeeesseststsesesesees 15 Vv {00040583;1} Severance v. Knight-Counihan Co. (1947) 29 Cal.2d S61... cececcssssessscssesscsesssssssessessecsessceesecsscsseseaees 17, 18 Social Service Union v. County of Monterey (1989) 208 CalApp.3d 676.0... cccccesessssssesscssssessecseseescsesecsscsssersssacenseees 4 Speegle v. Leese (1876) S51 Cal. 415oeeccccecsesessessssescsessssestesessesesesscsesscssssssesseseseneanseees 13 Taylor v. Taylor (1923) 192 Cal. 71.ecesceseeessesesseseesssessssessessceceesssssecscsessussceucaenaseneess 3 Wallis v. PHL Associates, Inc. (2013) 220 Cal.App.4th. 814.0... cccsccsscssssesseescsscsscsssssssssscsssscssceesereesers 4 West Pico Furniture Co. v. Pac. Finance Loans (1970) 2 Cal.3d 594... cccceeccsesesseseseeseseescesesecseestessssescseesessesscsseeenees 17 Whittington v. McKinney (1991) 234 CalApp.3d 123.0... cccesssessssscssessessssessecscsssscsecssesssscsseceaceas 4 Wilsonv. Ritto (2003) 105 Cal.App.4th 361.0...ccc ccccccsscsecsscseccssesscsscssesesssecsenasees 7, 22 Wysinger v. Automobile Club of Southern California (2007) 157 CalApp.4th 413... cccccesscsesscsessesscescsscssescsssssssesseseeeserenees 7 STATUTES Civil Code, § 14381eeccecesceseeneesenseceeseesessssesseesesacseecseseeeeessesecereets 11, 18, 19, 20 Code of Civil Procedure, SATS Li cececcsssssescensesceseceeeceeseesessessesesseessesesseecsecssseeceacessesenses 11, 12, 13, 14 § O32 oe eeceesscenccneeeaecseeeseeeseessessesssesessessesseesscsessecsescssssacausaerareeaserspassim § O34ecceecsessescesceeeeseesecsessessessesesesecseacsecsecseseceecsscsseserstsseteceesssarenseres 21 vi {00040S83; 1} OTHER 5 Witkin, Summary of California Law, 10th (2005), Torts, § 49-50.ccc ccccsscecssesssccescesseecsseecsseecenscesecssscesseesaeeceessccsuseneasessseeeseeenas 19 7 Witkin, California Procedure, Trial, § 392.00... cccccccesseceessteeessteeseeaes 18 9 Witkin, California Procedure 5th (2008), Appeal, § S38 vi ececccscssesecsecsecsecseeseeseeesseeecsecseeeeeseceeseesseeseceesateceenesaseneceeeesereatenees 3 § AST oecccecessessesssessesecsecaesaeereesensesessessesnesseneeseeseeeseseneneennsesenseceeeeesaesarens 3 Article VI, § 13 of the California Constitution...eeeeeeseeeeeeeespassim Article VI, § 4 % of the California Constitution... eeeeeeeeeeeeeeeeees 3,14 California Rules of Court, Rulle 3.1590 occ ceccscsseesesceecesecsesacesaevseceeeseeeeeaeseaesaeseeeeateseeeseereeseeeas 2, 21 Rulle 8.500(D)(1) 0... eeecceeccenscenceeeesecseceneseeatenesaeeseesaeceesesessaessssessneseneseeasy 1 Rule 8.504, Subdivision (d)(1),.........::cccssecseececteeceesenecessneeeesseeeeeteeeeeees 25 Eisenberg, Horvitz & Wiener, California Practice Guide: Civil Appeals & Writs (2013) §§ 8:25, 8:317 occcesses este eteteseetteeenes 3 Stats. 1851, ch. 5,871.Leveceesevssvsessesseceeseeseececccesevsesesseceeseceseceuceceeseeceeeeeeeeeeaaa 13 Stats. 1897, ch. 47, § Loniccccccccssecesseneeeeseeessecsnseeeseseeeeeseecessseesesreseseees 14 Wegner, Fairbank & Epstein, California Practice Guide: Civil Trials and Evidence (2013) § 16:96 oo.ecseeeesseeeeesseeeeeesneeeesenererers 6 vii {00040583;1} ISSUES PRESENTED 1. Is the rule thatfailure to issue a statement of decision when required, a rule repeatedly stated in a consistent line of decisions of this Court and the courts of appeal stretching back more than 160 years, still valid? 2. In a tort action in which defendant’s answerraises the affirmative defense of comparative negligence and requests apportionment of damages, and where the evidence supports an apportionment, does defendant forfeit the right to a statement of decision on apportionment by making the request after trial but before the court makesits final decision and enters judgment? INTRODUCTION AND REASONSTO GRANT REVIEW This case meets both criteria of California Rules of Court, rule 8.500(b)(1). Review is “necessary to secure uniformity of decision.” The court of appeal’s decision conflicts with decisions on point from this Court going back almost 100 years. It also conflicts with decisions of every ap- pellate district, including the Third Appellate District itself. The case also raises two “important question(s) of law” affecting civil litigants throughout thestate. Article VI, § 13 of the California Constitution provides that a judg- ment maynotbeset aside for procedural error “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion 9 eethat the error has resulted in a miscarriage of justice.” “[Mliscarriage of (00040581; 1} eeejustice” means ““‘that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence oferror.’” Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800. In the present case, at the conclusion of a benchtrial, the court an- nouncedits tentative decision against petitioner, Joseph Monier. His attor- ney promptly requested a statement of decision on specified, principal con- troverted issues as provided in Code of Civil Procedure § 632 and Califor- nia Rules of Court, rule 3.1590. Two days later, the trial court entered judgment in accordance with its tentative decision without issuing a state- ment of decision. The court of appeal affirmed. The court rejected Monier’s argument that, under an unbroken line of cases, failure to render a statement of deci- sion on timely request is reversible error per se. The court of appeal agreed that the trial court erred in not issuing a statement of decision, but the court held that, Monier had to satisfy article VI, § 13 and demonstrate a reasona- ble probability that the judgment would have been more favorable had the trial court not erred. The court held that Monier could not make that show- ing because, although he had alleged comparative fault and apportionment as an affirmative defense, and though the evidenceat trial supported the de- fense, he had forfeited the right to a statement of decision by not directly raising the apportionmentdoctrineattrial. {00040581;-1} A. Review is necessary to secure uniformity of decision on whether a failure to render a statement of decision on timely request is reversible errorperse. 1. The court of appeal’s decision conflicts with this Court’s long-standing decisions. “Someerrors are regarded as so serious that, under any circumstanc- es, they must be deemedprejudicial.” 9 Witkin, Cal. Procedure Sth (2008), Appeal § 453, p. 508 (“Witkin Procedure”). Failure to issue a statement of decision is in this class of reversible error per se. Jd., § 457; see also Ei- senberg, Horvitz & Wiener, Cal. Prac. Guide: Civ. App. & Writs (2013) §§ 8:25, 8:317 (“Rutter Appeals”). This Court has held since its earliest days that failure to make find- ings necessitates reversal of a judgment. Russel v. Armador (1852) 2 Cal. 305; Bowers and Gumbert v. Johns and Barker (1852) 2 Cal. 419; Hoa- gland v. Clary (1852) 2 Cal. 474, 475. Other decisions to the same effect followed through the remainder of the 19th Century and in 1905 the Court said, “It is well settled that, where the court fails to find upon a material is- sue, the judgmentis unsupported, and will be reversed upon appeal.” Kusel v. Kusel (1905) 147 Cal. 52, 57. In 1914, whatis now article VI, § 13 of the Constitution was adopted as article VI, § 4 %. The Court continued to hold that failure to make find- ings necessitated reversal. J.-F. Lucey Co. v. McMullen (1918) 178 Cal. 425, 434; Taylor v. Taylor (1923) 192 Cal. 71, 81; James v. Haley (1931) (00040581; 1} 212 Cal. 142, 147; Krum v. Malloy (1943) 22 Cal.2d 132, 136; Fairchild v. Raines (1944) 24 Cal.2d 818; Parker v. Shell Oil Co. (1946) 29 Cal.2d 503, 512; De Burgh v. DeBurgh (1952) 39 Cal.2d 858, 873; see also Guardian- ship ofBrown (1976) 16 Cal.3d 326, 333 (failure to issue statement of deci- sion). The Court has never disapproved, disagreed with or questioned the rule in this long line of cases. 2. The court of appeal’s decision conflicts with decisions from every appellate district, including the Third. Until the present case, every appellate district—including the Third District itself—consistently and repeatedly held that failure to render a statemeiit of decision is reversible error per se. There are too manytocite them all. Examples include Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal.App.4th 654, 659 (First District); Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129 (Second District); Whitting- ton v. McKinney (1991) 234 Cal.App.3d 123, 127 (Fourth District); Mor- row v. Morrow (1962) 201 Cal.App.2d 235, 238 (Fifth District); Social Service Union v. County of Monterey (1989) 208 Cal.App.3d 676, 681 (Sixth District). Just three months before this deciding this case, the Third District itself held that “a trial court's failure to file a statement of decision following a timely request constitutes ‘per se reversible error.’” Wallis v. (00040581; 1} PHLAssociates, Inc. (2013) 220 Cal.App.4th. 814, 825, citing Gruendl and Miramar. The conflict between the Third Appellate District’s decision here and the decisions of this Court and of every other appellate district could notbe greater. There is a need for this Court’s review to secure uniformity of decision. B. Theissues are of statewide importancein civil litigation. 1. This Court has repeatedly recognized the importance of and necessity for findings. The court first stated the importance of findings, likening them to a jury’s verdict, in Russel v. Armador (1852) 2 Cal. 305. The judge’s deci- sion stating his or her findings, the Court said, is intended to “be the basis of the judgment in the same mannerasthe verdict of a jury; and it follows that without such decision the judgment cannot stand.” Chief Justice Field elaborated that, in a benchtrial, the court, “besides performing its peculiar and appropriate duty of deciding the law, also discharges the functions of a jury, and passes uponthe facts.” Breeze v. Doyle (1861) 19 Cal. 101, 104; see also Garfield v. Knight's Ferry & Table Mountain Water Co. (1861) 17 Cal. 510, 512; Jones v. Block (1866) 30 Cal. 227, 229; Murphy v. Bennett (1886) 68 Cal. 528, 536. A statement of decision serves a number of important purposes, which the court of appeal acknowledged at p. 10 of the slip opinion, quot- {00040581; 1} ing R. E. Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal.App.3d 50, 52-53, quoting Frascona v. Los Angeles Ry. Corp. (1920) 48 Cal.App. 135, 137-138. Another significant, perhaps the most important, purpose from the standpointofcivil litigants, is that a statement of decision is “[e]ssential to effective appellate review.” Wegner, Fair- bank and Epstein, Cal. Prac. Guide: Civ. Trials & Ev. (2013), § 16:96 (bold in original). It “facilitates appellate review by exposing the exact ground on which the judgmentrests.” Jd. “Without a statement of decision, the appellate court has no way of determining the trial court's reasoning; and the judgment therefore may be effectively insulated from review by the substantial evidencerule.” Jd. Whenthere is no statement of decision, the appellant faces whatts often the death knell of an appeal, the doctrine of implied findings, under which the reviewing court infers that the trial court made any finding sup- ported by substantial evidence in the record, or reasonable inferences that may be drawn from it, that may be necessary to uphold the judgment. Jn re Marriage ofArceneaux (1990) 51 Cal.3d 1130, 1133-1134; Hall v. Munici- pal Court (1974) 10 Cal.3d 641, 643. Whether the failure to render a statement of decision when required is reversible error per se is of paramount importance to all litigants and their counsel in civil actions. {00040581; 1} 2. No existing authority treats the important issue of when and how a party may seek apportionment of damages based on comparative fault in a courttrial. Whether a defendant who has pleaded comparative negligence and apportionment of damages forfeits the right to apportionment by not also requesting apportionmentattrial is an issue of first impression. Monieris unaware of any cases treating the issue. The decisions the court of appeal cited held only that defendants waived apportionmentin jury trials by not requesting a special verdict on the issue. Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1398-1399; Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 444-445; see also Wysinger v. Automobile Club ofSouthern Califor- nia (2007) 157 Cal.App.4th 413, 427.' In a jury trial, the jury is the trier of fact. Its verdict completes the decision-making process and the court’s only function is to enter judgment on the verdict. It is, therefore, necessary to present the issue of apportion- ment to the jury before it decides the case in its verdict. In a benchtrial, as previously discussed, the judge “discharges the functions of a jury, and passes upon the facts.” Breeze, 19 Cal. at 104. But unlike a jury’s verdict, the judge’s decision is not final until judgmentis ' The court of appealalso cited Wilson v. Ritto (2003) 105 Cal.App.4th 361, 366-369. Slip op. at 16. But there, the court held that defendant was not entitled to a special verdict on apportionment because there was no evi- dencethat the alleged joint tortfeasor wasat fault. Jd. 7 {00040581; 1} entered; “the trial court retains the inherent authority to change its decision at any time prior to the entry ofjudgment.” Le Francois v. Goel (2005) 35 Cal.4th 1094, 1100. He or she “may at any time before entry ofjudgment amend or changehis [or her] findings of fact.” Phillips v. Phillips (1953) 41 Cal.2d 869, 874; see also Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135, 141 (after filing statement of decision but before entry ofjudgment, court could amend statement of decision to award “prejudgmentinterest). Yet no reported decision known to Monierprior to the court of ap- peal’s decision here considers whether requesting allocation during the statement of decision process, when the court'has not yet madea final deci- sion, is sufficient. When and how apportionment must be requested is an issue that arises in every benchtrial for personal injury where comparative fault is raised as an affirmative defense. The issue warrants this Court’s review. SUMMARYOF FACTS AND PROCEDURE The trial court found that when appellant and petitioner, Joseph Monier, wasin high school, he sexually abused his 10-year old cousin, re- spondent, F.P. while she was under the care and supervision of Monier’s parents. Slip op. at 2. At the sametime, F.P.’s father was having sexual intercourse with her and abusing her sexually in other ways. Id. 00040581; 1} She sued Monier on causes of action for sexual battery, gender vio- lence and intentional infliction of emotional distress. Slip op. at 4. She sued his parents for negligently failing to reasonably care for, supervise, direct, oversee and protect her from harm Monier allegedly inflicted. Jd. She prayed for general and special damages“‘jointly and severally asto all defendants.” Id.’ Monier vehemently denied her allegations and asserted a number of affirmative defenses in his answer, including comparative fault. He alleged that F. P. “‘as well as other individuals and entities as yet unknown to De- 999fendant,’” were legally at fault for her injuries, “‘and therefore any liability should be apportioned among Plaintiff and all other such parties . . . based upontheir respective percentages of comparative fault or legal responsibil- ity.’” Slip op. at 4, 15. In a benchtrial, F. P.’s treating psychologist and a retained expert psychologist testified that she was suffering from posttraumatic stress dis- orderattributable to being molested by her father and Monier. Slip op.at 3. Her expert also diagnosed major depression and an anxiety disorder. Slip op. at 3-4. Hertreating psychologist could not distinguish between harm result- ing from the sexual abuse byF.P.’s father and any act of Monier, nor could * Monier’s parents settled prior to trial and the court was made awareofthe settlementpriorto trial. Id. (00040581; 1} the retained psychologist. Jd. But he found that “‘the sexual molestation by her father was dramatically more traumatic than by her cousin [(defend- ant)]....[§J]...[§] ... because her relationship with her father was a much more central, basic relationship in herlife,” and “[h]er relationship with the [defendant] was more tangential.’” Jd. At the conclusion oftrial on April 29, 2009, the court announcedits tentative decision awarding total damages of $305,096. Slip op. at 5. Of that amount, $250,000 was general, noneconomic damages. Jd. The court directed F. P.’s counsel to prepare a judgment. Id. Later that day, Monier’s counsel filed a request for statement of de- oecision setting forth ““‘the basis upon which the Court awarded special dam- ages, the basis upon which the court awarded emotional distress damages, the basis upon which the court awarded past and future medical expenses, and the basis upon whichthe court granted lost wages.’” Jd. On May 1, 2009, F. P.’s counsel submitted a judgmentto the trial court. Jd. The record does not show that the court took notice of the re- quest for statement of decision before rendering the judgment, which was entered the same day F. P.’s counsel submitted it, two days after the trial. Slip op. at 5-6. Moniertimely appealed to the Third Appellate District and asserted two arguments relevant here. First, he argued, the trial court’s failure to issue a statement of decision was reversible error per se, citing Miramar, 10 (00040581; 1} 163 Cal.App.3d at 1129, and decisions following it. Slip op. at 2; AOB at 15. Monier also argued that the trial court erred in failing to apportion damages between himself and F. P.’s father as required by Proposition 51, Civil Code § 1431.2. Slip op. at 2; AOB at 16-18. The court of appeal rejected both arguments. The court agreed that the trial court’s failure to issue a statement of decision was error. Slip op. at 2, 6. But, the court held, underarticle VI, § 13 of the California Consti- tution and the similar provisions of Code of Civil Procedure § 475, the error did not require reversal unless Monier showedit was prejudicial by demon- strating that it was reasonably probable a more favorable result would have been reached in the absence of the error. Slip op. at 6-13. The court distin- guished Miramar and the consistent cases Monier cited requiring reversal whenthetrial court fails to issue a statement of decision on timely request. Slip op. at 9. Those cases, the court held, did not consider the constitution- al provision or § 475. Id. The court then turned to whether Monier could show prejudice and held that he could not. Slip op. at 14-17. Monier argued that, had the trial court issued a statement of decision after he timely requested the court to set forth the factual and legal basis for its award of general damages, the parties and the appellate court would know whetheror not the general dam- ages awarded had been apportioned between him and F. P.’s father in ac- 1] (00040581; 1} cordance with their proportionate fault as Proposition 51 requires. Jd.; AOBat 16-18. The court of appeal held that Monier forfeited his right to appor- tionment by not raising the issue at trial. Slip op. at 14-17. “A defendant seeking apportionment of noneconomic damages under Proposition 51 must plead comparative fault as an affirmative defense, prove the comparative fault of others, and request that an allocation be made.” Jd. at 16 (court’s italics). Joseph could not wait until after trial to request an allocation. Jd. The court accepted two of Joe’s other arguments and modified the judgment, reducing the award of economic damages to conform to the evi- denceat trial and to set off the portion of the settlement with Monier’s par- ents representing economic damages. Slip op. at 17-26. The court affirmed the judgment as modified. Slip op. at 26. The court denied Monier’s petition for rehearing. A copy ofthe or- der follows the attachedslip opinion. ARGUMENT I THIS COURT HAS HELD, EXPRESSLY AND IMPLICITLY, THAT FAILURE TO RENDERFINDINGSIS PREJUDICIAL A. The Court has held in so many words that failure to make re- quired findingsis prejudicial error. The Court has been explicit: “it is undoubtedly the law” that, when findings are required, “failure to make them constitutes prejudicial and re- 12 {00040581; 1} versible error.” Carpenter v. Pac. Mut. Life Ins. Co. of Cal. (1937) 10 Cal.2d 307, 326, aff'd sub nom. Neblett v. Carpenter (1938) 305 U.S. 297, 59 S.Ct. 170, 83 L.Ed. 182 (1938). The Court twice repeated that the fail- ure to make findings when required is “prejudicial error.” City of Vernon v. City ofLos Angeles (1955) 45 Cal.2d 710, 727; Edgar v. Hitch (1956) 46 Cal.2d 309, 312. ° B. Even when not expressly stating the rule, the court has always treated failure to make findings as prejudicial error, holdingit reversible perse. Prior to the adoption of what is now article VI, § 13, statutes im- posed the harmlesserror rule. As adopted in the Field Code of 1872, Code of Civil Procedure § 475 stated, “The Court must, in every stage of an ac- tion, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgmentshall be reversed or affected by reason of such error or defect.” The provision was derived from an earlier statute. Stats. 1851, ch. 5, § 71. > In Edgar, the Court used language that might at first appear to require a showingofprejudice in termsofarticle VI, § 13: “under the circumstances here presented a failure to make a finding on the defense of accord andsat- isfaction of a bona fide dispute would constitute prejudicial error.” Id., 46 Cal.2d 309, 312. The only circumstances the court referred to, however, were that defendant had had asserted an affirmative defense that wasliti- gated at trial and, therefore, raised a material issue, but the trial court ruled for plaintiff without making findings on the defense. /d. Furthermore, the Court cited Fairchild and James, neither of which held that some additional showing of prejudice is required. 13 {00040581; 1} Nevertheless, four years after adoption of § 475, the Court held that a judgmentcould not be supported if there was no finding on a material is- sue. Speegle v. Leese (1876) 51 Cal. 415. Two years later, the Court re- versed a judgment for failure to make findings on issues raised by a coun- ter-claim. “It is the settled rule that the material issues made by the plead- ings must be respondedto by the findings.” Baggs v. Smith (1878) 53 Cal. 88, 89. Other decisions followed. Haffenegger v. Bruce (1880) 54 Cal. 416, 418; Murphy, 68 Cal. at 536; Kusel, 147 Cal. at 57. In 1914, what is now article VI, § 13 of the Constitution was adopted . as article VI, §4 %. By then, Code of Civil Procedure § 475 had been amendedto its present form, which virtually mirrors the constitutional pro- vision. Stats 1897, ch. 47, § 1. Yet, the Court continued to consistently hold the failure to make findings on material issues is error requiring reversal. Seventeen years after adoption of the constitutional provision the Court held, “Ever since the adoption of the Codes, it has been the rule that findings are required onall material issues raised by the pleadings and evidence, unless they are waived, and, if the court renders judgment without making findings on all material issues, the case must be reversed.” James, 212 Cal. at 147; see al- so Fairchild, 24 Cal.2d at 830 (quoting and following James); Parker, 29 Cal.2d at 512 (quoting and following Fairchild); De Burgh v. DeBurgh (1952) 39 Cal.2d 858, 873 (citing and following Fairchild and Raines). 14 (00040581; 1} Asthe courts of appeal have distilled the rule from this Court’s deci- sions a court’s failure to issue a statement of decision explaining its deci- sion on principal controverted issues raised by the pleadings and supported by evidence favoring appellant is “error of a most serious, prejudicial and reversible nature.” San Jose Abstract & Title Ins. Co. v. Elliott (1952) 108 Cal.App.2d 793, 801, superseded bystatute as stated in Arceneaux, 51 Cal.3d at 1137; McCurter v. Older (1985) 173 Cal.App.3d 582, 594, disap- proved on other grounds in Arceneaux, 51 Cal.3d at 1137 (same); In re Marriage ofAnaneh-Firempong (1990) 219 Cal.App.3d 272, 282 (same). C. The Court did not retreat from the rule of reversibility per se in Brown. In the court of appeal’s view, in Guardianship ofBrown this Court “held that the failure to issue requested findings on material issues under section 632 was subject to a prejudicial error analysis.” Slip op. at 12. In fact, this Court said no such thing. Neither the word, “prejudice,” nor any variant appears in Brown. The court of appeal began its analysis of Brown by quoting this Court’s statement, “‘It is settled that, unless waived, express findings are required on all material issues raised by the pleadings and the evidence, and failure to find on a material issue will ordinarily constitute reversible er- ror.’” Slip op. at 12, quoting Brown, 16 Cal.3d at 333 (court of appeal’s italics). The court then construed Brown’s discussion that followed as a 15 (00040581; 1} “prejudicial error analysis.” Slip op. at 12-13. The court of appeal was wrong. In the discussion, this Court reviewed the pleadings and evidence only to determine whether the issue on which the trial court failed to find was material. The issue was whether it was in the best interest of an in- competent person, Thomas, to grant his mother’s petition to be appointed his guardian and authorize her to take him to anotherstate. Her guardianship petition was contested by appellant, Thomas’s wife, who also petitioned for appointment. Brown, 16 Cal.3d at 335. Since evidence in the record could support appointing appellant the trial court had “to makea difficult choice between the incompetent’s mother and his wife... .” Jd. at 335-336. Therefore, whether it was in Thomas’s best interest to make his mother guardian “was a material upon whichthetrial court should have made an expressfinding. .. .” Jd. at 336. But the only findings the trial court made were that Thomas needed a guardian, respondent was his mother and she was fully qualified to man- age his affairs and estate. Jd. at 335. As the trial court made no finding on whether appointing her was in his best interest, “the order appointing [mother] guardian must be reversed.” /d. at 336 The Court’s statement in Brown thatfailure to find on a materialis- sue “ordinarily” requires reversal (id. at 333) merely acknowledged that there are, as with almost every rule of law, a few exceptions. But the Court 16 {00040581; 1} has never held that failure to demonstrate prejudice underarticle VI, § 13 is one of them. The Court’s discussion in Brown disposed of three that might arguably haveapplied. First, the trial court need not make a finding on an uncontested fact. Sacre v. Chalupnik (1922) 188 Cal. 386, 390. A statement of decision is required only on “controverted issues at trial... .” Code Civ. Proc. § 632. That exception could not apply in Brown, where appellant opposed re- spondent’s guardianship petition and asserted that it was not in Thomas’s best interest to appoint respondent his guardian. Brown, 16 Cal.3d at 335. Second, failure to make a finding on anissue raised by the pleadings is not reversible if there is no evidencethat could support a finding in ap- pellant’s favor. Hubbard v. San Diego Elec. Ry. Co. (1927) 201 Cal. 53, 56; Fairchild, 24 Cal.2d at 830 (quoting James; ““‘findings are required on all material issues raised by the pleadings and evidence’”); cf West Pico Furniture Co. v. Pac. Finance Loans (1970) 2 Cal.3d 594, 613 (failure to find not reversible where finding would necessarily be against appellant). That exception did not apply in Brown because substantial evidence could support appointing appellant Thomas’s guardian. Jd. 16 Cal.3d at 335-336. Finally, an express finding is not required where it may reasonably be implied from the findings actually made. Severance v. Knight-Counihan Co. (1947) 29 Cal.2d 561, 567. But in Brown, “by no process of construc- tion of the court's findings as to Thomas’ mother may we concludethat the 17 {00040581; 1} court found that it would be in Thomas’best interest to have his mother ap- pointed instead ofhis wife.” Jd., 16 Cal.3d at 335." Contrary to the court of appeal’s opinion, Brown does not represent this Court’s departure from therule that failure to find on a material issueis reversible errorper se. I THE FAILURE TO ISSUE A STATEMENT OF DECISION WAS ACTUALLY PREJUDICIAL TO MONIERIN CUTTING OFF HIS RIGHT TO SEEK APPORTIONMENT OF DAMAGES Assuming that it was necessary for Monier to demonstrate he was actually prejudice by thetrial court’s failure to issue a statement of deci- sion, the record shows he was. Under Proposition 51, Civil Code § 1431.2, subdivision (a), In any action for personal injury, property damage, or wrong- ful death, based upon principles of comparative fault, the lia- bility of each defendant for non-economic damagesshall be several only and shall not be joint. Each defendant shall be liable onlyfor the amount ofnon-economic damagesallocat- ed to that defendant in direct proportion to that defendant's * Witkin lists other circumstances in which a statement of decision is not required. 7 Witkin Procedure, Trial § 392, p. 460. Additionally, a state- ment of decision is not available in a special proceeding. See Carpenter, 10 Cal.2d at 327. 18 {00040581; 1} percentage offault, and a separate judgment shall be rendered against that defendant for that amount. (Italics added.) The comparative fault of F. P.’s father was an issueattrial. Monier had alleged comparative fault and sought apportionment of damagesin his answerto the complaint. Slip op. at 4, 12. F. P.’s own witnessestestified that she suffered an indivisible injury resulting from Monier’s conduct and the repeated sexual abuse by her father. Slip op. at 4. F. P.’s retained ex- pert also testified that “‘the sexual molestation by her father was dramati- cally more traumatic than by her cousin [(defendant)]....[§]...[{]... because herrelationship with her father was a much morecentral, basic re- lationship in her life,” and “[h]Jer relationship with the [defendant] was more tangential.’” Slip op.at 4. Thelaw treats concurrenttortfeasors, even if not acting in concert, as co-tortfeasors where the plaintiff's injury is indivisible. See American Mo- torcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 586-590; see also 5 Witkin, Summary of Cal. Law, 10th ed. (2005), Torts, §§ 49-50, pp. 116- 118. In these circumstances, a defendant[’s] liability for noneconomic damages cannot ex- ceed his or her proportionate share of fault as compared with allfault responsiblefor the plaintiff's injuries, not merely that of defendants present in the lawsuit.... [Proposition 51] 19 (00040581; 1} ‘quite clearly is simply intended to limit the potentialliability of an individual defendant for noneconomic damages to a proportion commensurate with that defendant’s fault.’ DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 603, quoting Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1204 (Court’s italics added in DaFonte). The finder of fact must, therefore, consider all those at fault for the plaintiff's injury, whether they are named as defendants or not. Proposition Oe51’s very purpose is “‘to limit the potential liability of an individual de- fendant for noneconomic damages to a proportion commensurate with that defendant's personal share of fault.’”” DaFonte, 2 Cal.4th at 603, quoting Evangelatos, 44 Cal.3d at 1204. Proposition 51, through Civil Code § 1431.2, “plainly attacks the is- sue of joint liability for noneconomic tort damages root and branch. In every case, it limits the joint liability of every defendant to economic dam- ages, and it shields every defendant from any share of noneconomic dam- ages beyondthat attributable to his or her own comparative fault.” DaFon- te, 2 Cal.4th at 602. Monier timely requested a statement of decisionsetting forth “‘the basis upon which the court awarded emotional distress damages . . . Slip op. at 14. The court of appeal found nofault with the request. 20 (00040581; 1} Oncea party makes a timely request for statement of decision, any other party may make proposals as to the content of the statement of deci- sion. Cal. Rules of Court, rule 3.1590(e). The court must then either pre- pare and serve,or designate a party to prepare, a proposed statementof de- cision. /d., subd. (f). After the proposed statement of decision is served, any party mayserve and file objectionsto it, including that it does not re- solve a controverted issue or is ambiguous. Jd., subd. (g); Code Civ. Proc. § 634; Arceneaux, 51 Cal.3d at 1133-1134. Hadthetrial court complied with Code of Civil Procedure § 632 and the Rules of Court, and if the proposed statementof decision did not appor- tion damages between Monier and F. P.’s father, Monier would have had the opportunity to object to the omission and protect himself against a judgmentholding him liable for damages for which he wasneither respon- sible norliable. In her concurring opinion in Miramar, which the court of appeal quotedin its decision here, Presiding Justice Spencer gave a practical rea- son for the rule that failure to issue a statement of decision is reversible per se. Id., 163 Cal.App.3d at 1130-1331; Slip op. at 9. Although reluctantto endorse any rule of per se reversibility, she recognized, trial courts were increasingly disregarding Code of Civil Procedure § 632 and not rendering statements of decision when requested but issuing minute orders instead. “The far-reaching and burdensomeeffects of that practice mandate that it 21 {00040581; 1} end immediately. Since I perceive no meansofeffecting that result other than perse reversal, I join with the majority.” Jd. The court of appeal’s decision, by rejecting the rule ofper se revers- ibility established by this Court in decisions tracing back to 1852 and fol- lowed by every appellate district since, once again allows judges to disre- gard the mandate of Code of Procedure § 632. It makes the right to a statement of decision the statute gives every civil litigant illusory. A trial judge may nowignore a requestfor statement of decision, choosing instead both to shift the burden of determining the facts to the appellate court through the doctrine of implied findings, and to rest content in the certainty that, under that doctrine, the reviewing court will effectively write the worst possible statement of decision in against the appellant. Hl MONIERDID NOT FORFEIT HIS RIGHT TO APPORTIONMENT OF DAMAGES In holding that Monier forfeited the right to apportionment by not raising the issueattrial, the court of appeal held a defendant seeking Propo- sition 51 apportionment must meet three requirements. Slip op. at 16, cit- ing Wilson, 105 Cal.App.4th at 366-369; Kitzig, 81 Cal.App.4th at 1398- 1399; and Conrad v. Ball, 24 Cal.App.4th at 444-445. Moniersatisfied the first two requirements. Thethird is inapplicable. 22 (00040581; 1} First, the defendant “must plead comparative fault as an affirmative defense.... Slip op. at 16 (court’s italics). The court acknowledged that Monier did. Slip op. at 5, 14. Second, the defendant must “prove the comparative fault of oth- ers....” Slip op. at 16 (court’s italics). It was undisputedthat F. P.’s fa- ther had repeated sexual intercourse with her and subjected her to other sexual abuses. F. P.’s own expert testified that the sexual assaults by her father were “‘dramatically more traumatic’” than anything Monier may have done. Slip op.at 4. The third requirement the court of appeal found in the casesit cited wasthat defendant must “request that an allocation be made.” Slip op. at 16 (court’s italics). But, as previously discussed, in the cases the court re- lied on, Wilson, Kitzig, and Conrad, the facts were determined byjuries and it was, therefore, necessary to propose a special verdict on apportionment so the jury could determinethe issue. In a court trial, however, the facts are not finally determined until the judgmentis entered. Le Francois, 35 Cal.4th at 1100; Phillips, 41 Cal.2d at 874. The court of appeal gave no reason why,in a benchtrial, the request for apportionmentcannot be madein the course of proceedings to obtain a statement of decision, at which time the court has not finally decided the case and facts have not been determined. 23 {00040581; 1} CONCLUSION Thetrial court’s failure to issue a statement of decision upon Mon- ier’s timely request, as Code of Civil Procedure § 632 mandates, divested him ofthe benefit of Proposition 51, denying him the right to assure that the judgment against him was only for that proportion of F. P.’s damages for which he could be held liable under Proposition 51. Monier did not forfeit his right to a statement of decision on appor- tionment of damages between F. P.’s father and himself. His answer put the issue before the court in his comparative fault affirmative defense. Evi- denceattrial showed the comparative fault of F. P.’s father and that his mo- lestation was a significant cause of F.P.’s damages. There was proof that her father’s sexual abuse was more traumatic to her than any act the court found Monier committed. His timely request for a statement of decision on the basis for the court’s award of noneconomic damages wassufficient to request apportionmentbefore the court decided the facts. The court of appeal’s decision should be reversed. Dated: February 18, 2014 JAY-ALLEN EISEN LAW CORPORATION JAY-ALLENEISEN, Attorneys for Defendant and Appellant, Joseph Monier 24 {00040581; 1} CERTIFICATION I certify, pursuant to rule 8.504, Subdivision (d)(1), California Rules of Court, that the attached PETITION FOR REVIEW contains 5,705 words, as measured by the word count of the computer program used to preparethis brief. Dated: February 18, 2014 JAY-ALLEN EISEN LAW CORPORATION By: AL (2 JAWALLEN EISEN 25 (00040581; 1} Filed 1/9/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) F.P., C062329 Plaintiff and Respondent, (Super. Ct. No. 06AS00671) v. JOSEPH MONIER, Defendant and Appellant. APPEALfrom a judgmentof the Superior Court of Sacramento County, Robert Ahern, Judge. (Retired judge of the Santa Clara Sup. Ct. assigned by the Chief Justice pursuantto art. VI, § 6 of the Cal. Const.) Affirmed as modified. Ortiz Law Office, Jesse S. Ortiz III; Jay-Allen Eisen Law Corporation, Jay-Allen Eisen, and Aaron S. McKinney for Defendant and Appellant. Law Offices of John P. Henderson, John P. Henderson, and David C. Henderson for Plaintiff and Respondent. Following a benchtrial, the trial court found defendant Joseph Monier “molested his biological cousin, Plaintiff [F.P.,] numerous times when she wasten years old” and ordered him to pay damagesto plaintiff in the amount of $305,096, consisting of $55,096 for special economic damages ($44,800 for lost income and $10,296 for past and future medical expenses), and $250,000 for general noneconomic damages. Defendant appeals, contendingthetrial court erred in failing to issue a statement of decision following his timely request for one, andthe error is reversible perse. According to defendant, “[w]ithout a statement of decision,it is impossible to tell whetherthetrial court allocated general damagesas required by Proposition 51.”! Defendant also claims there is no substantial evidence to support thetrial court’s award of lost income, andthetrial court erred in failing to offset defendant’s parents’ $275,000 pretrial settlement with plaintiff against plaintiff's economic damage award. Weshall concludethetrial court erred in failing to issue a statement of decision. Although sucha failure is often treated as reversible per se (Miramar Hotel Corp.v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129 (Miramar)), we find no miscarriage ofjustice permitting a reversal here. (Cal. Const., art. VI, § 13.) Significantly, we shall conclude defendantforfeited any right to apportionment under Proposition 51 by failing to timely raise the issueattrial; thus, the absence of a statement of decision on the issue of general noneconomic damages is of no consequence. Weshall further conclude that substantial evidence supports a finding plaintiff lost incomein the amount of $42,120, not $44,800 as found bythe trial court, and defendantis entitled to a setoff from plaintiff's adjusted award of economic damagesin the amountof $47,664. Accordingly, we shall modify the judgment to reduce the amountof special economic ! The Fair Responsibility Act of 1986 (Civ. Code, § 1431 et seq.); hereafter Proposition 51. damages defendant mustpayplaintiff to $4,752 and the total judgment to $254,752, and affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND In 1990 and 1991, defendant, who was17 years old and senior in high school, committed variousacts of sexual battery uponplaintiff, his 10-year-old cousin. Such acts includedplaintiff orally copulating defendant, and defendant performing anal sex on plaintiff. This conduct occurred while plaintiff was under the care and supervision of defendant’s parents. During the sameperiod oftime, plaintiff's father also was sexually abusing her by touching her genitals and having vaginal intercourse with her. Plaintiff first sought treatment for depression and anxiety, which she attributed to the sexual abuse, in 2005 when she was 24 years old. From Juneuntil approximately August 2005 she received counseling from Christine Volker, and from September 2005 until December 2007 she wastreated by Dr. Laurie Wiggen, a licensed clinical psychologist. Dr. Wiggen diagnosed plaintiff with posttraumatic stress disorder, which she attributed to the traumaplaintiff suffered as a result of being molested byherfather and defendant. Dr. Wiggen could not distinguish between the harm donebyplaintiff's father and defendant; rather, she opinedthat their conduct was “cumulatively impactful in their damage emotionally to [plaintiff]... .” Plaintiff also was evaluated by Dr. Eugene Roeder, a licensed psychologist, in July 2005. The purpose ofthat one-day evaluation wasto assess plaintiffs psychological functioning. Dr. Roeder diagnosedplaintiff with major depression, an anxiety disorder, and posttraumatic stress disorder. According to Dr. Roeder, the posttraumatic stress 2 Attrial, defendant vehemently denied sexually abusing plaintiff. On appeal, however, defendant does not challengethetrial court’s finding he molestedplaintiff. The issues raised on appealare limited to the trial court’s failure to issue a statement of decision and damages. disorder diagnosis is consistent with plaintiffs “descriptions of being a sexual molest victim.” Like Dr. Wiggen, Dr. Roeder could not distinguish between the symptoms plaintiff was experiencing as a result of being molested by defendant from those she was experiencing as a result of being molested by her father, but he found “the sexual molestation by her father was dramatically more traumatic than by her cousin [(defendant)]. ...[{]] ... [§[] . .. because her relationship with her father was a much more central, basic relationship in herlife” and “[h]er relationship with the [defendant] was more tangential.” In February 2006,plaintiff initiated the instant action against defendant and defendant’s parents. In her complaint, plaintiff asserted causes action against defendant for sexualbattery in violation of Penal Code sections 288, subdivisions(a) and (b)(1) (lewd andlasciviousacts), 288a, subdivisions (b)(1) and (c)(2) (oral copulation), 286, subdivisions (b)(1) and (c)(2) (sodomy), and 289, subdivisions (a)(1) and (b) (sexual penetration). She also asserted causes of action against defendant for gender violence (Civ. Code, § 52.4, subd. (a)) and intentional infliction of emotional distress. Plaintiff asserted a negligence cause of against defendant’s parents, claiming they failed to reasonably care for, supervise, direct, oversee, and protect her from the harm inflicted upon her by defendant. As relevant here,plaintiff prayed for general and special damages“jointly and severally as to all defendants.” In his answer, defendant denied the allegations and asserted 16 affirmative defenses, including that others wereat fault as to the matters and thingsalleged by plaintiff and that any liability should be apportioned among them. Prior to trial, defendant’s parents’ homeowner’s insurancecarriersettled plaintiff's negligence cause of action against defendant’s parents for $275,000 in exchangefor a general release. A copy of the settlement agreement wasfiled with the trial court on February 4, 2008,and the trial court specifically was made awareofthe settlementprior to trial. The matter wastried to the court without a jury. On April 29, 2009,the trial court orally announcedits tentative decision, finding defendant committed the acts complained of byplaintiff, and his conduct was a substantial factor in causing her injuries. (Cal. Rules of Court, rule 3.1590.) The trial court indicated it was awarding damagesto plaintiff in the amount of $305,096, consisting of $44,800 for lost income, $10,296 for past and future medical expenses, and $250,000 for general noneconomic damages. The trial court instructed plaintiffs trial counsel to prepare a judgment. Later that same day, defendant timely filed a request for a statement of decision. (CodeCiv. Proc., § 632;3 Cal. Rules of Court, rule 3.1590(d) & (n).) As relevant here, the request sought a statement setting forth “the basis upon which the Court awarded special damages, the basis upon which the court awarded emotional distress damages,the basis upon which the court awarded past and future medical expenses, and the basis upon whichthe court granted lost wages.” Meanwhile,plaintiff's trial counsel prepared a judgment and submittedit to the trial court on May 1, 2009, along with a declaration outlining the events leading up to its submission. In his declaration,plaintiff's trial counsel explained that he faxed a copy of the judgment to defendant’strial counsel followingtrial on April 29, 2009, and was informed that defendant’s trial counsel was no longer at that number. The next day,plaintiff's trial counsel faxed a copy of the judgmentto defendant’s trial counsel’s new fax numberandleft a voicemail message advising him that thetrial court “needed the Judgment Following Court Trial reviewed and signed if approved, immediately as [the trial judge, who wasvisiting,] was leaving Sacramento on May 1, 2009.” Plaintiff's trial counsel did not hear from defendant’s trial counsel and submitted the judgmentto the trial court the next day, May 1, 2009. The recordfails to disclose that any notice was taken bythe trial court of defendant’s request 3 Further undesignatedstatutory references are to the Code ofCivil Procedure. for a statement of decision, and judgmentwasfiled on May 1, 2009, without any formal statement of decision having been rendered. Defendanttimely appeals. DISCUSSION I The Trial Court’s Error in Failing to Issue a Statement of Decision Does Not Warrant Reversal Absent a Showing That Remanding the Matter for the Preparation of a Statement of Decision Would Benefit Defendant or Assist This Court Defendant contendsthe trial court’s error in failing to issue a statement of decision is reversible per se, without inquiry into prejudice. Pursuantto section 632, upon request of any party in a nonjurytrial, the trial judge “shall issue a statement of decision explaining the factual and legal basis for its decision as to each ofthe principal controverted issues ....” Where, as here,thetrial is not concluded within one day, the request must be made within 10 days after the court announcesits tentative decision. (/bid.) A statement of decision is required only on the principal controverted issues specified in the request for a statement of decision; omitted issues are deemed waived. (City ofCoachella v. Riverside County Airport Land Use Com.(1989) 210 Cal.App.3d 1277, 1292.) Normally, the failure to issue a statement of decision is considered reversible error, and the matter is remandedto thetrial judge who originally presided overthetrial to complete the process. (Karlsen v. Superior Court (2006) 139 Cal.App.4th 1526, 1530-1531 (Karlsen); see also Miramar, supra, 163 Cal.App.3d at p. 1129.) “If the trial judge who originally presided overthetrial has becomeincapacitated or has died, no other judge can perform the task and the matter must be retried.” (Karlsen, 139 Cal.App.4th at p. 1531, italics omitted.) Here, defendant timely requested a statement of decision on the samedaythetrial court announcedits tentative decision (§ 632), and judgmentwasfiled two dayslater without a statement of decision having been rendered. Clearly, this was error. (/bid.) The question is whether we must reverse the judgment and remandthe matter without any inquiry into prejudice. The answeris no. “From as far back as 1872, a fundamental preceptin Californiais that in civil cases only prejudicialerroris reversible.” (Biscaro v. Stern (2010) 181 Cal.App.4th 702, 709,citing § 475, & Cal. Const., art. VI, § 13.) Article VI, section 13 of the California Constitution provides that a judgment cannot beset aside “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained ofhas resulted in a miscarriage ofjustice.” “This fundamentalrestriction on the powerof appellate courts is amplified by Code of Civil Procedure section 475, which states that trial court error is reversible only whereit affects ‘. . . the substantial rights of the parties .. . ,’ and the appellant ‘sustained and suffered substantial injury, and that a different result would have been probable if such error . . . had not occurred or existed.’ Prejudice is not presumed, and the burdenis on the appealing party to demonstrate that a miscarriage ofjustice has occurred. [Citations.]” (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) Notwithstanding the above, “someerrors in civil cases remain reversible perse, primarily whentheerror calls into question the very fairness of thetrial or hearingitself.” (Biscaro v. Stern, supra, 181 Cal.App.4th at p. 709.) For example, the following have been foundto be reversible per se: erroneous denial or substantial impairment of the constitutional right to a trial by jury (People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 300; Holley v. J & S Sweeping Co. (1983) 143 Cal.App.3d 588, 592-594); erroneous denial of a hearing (Adoption ofBaby Girl B. (1999) 74 Cal.App.4th 43, 55); and representation by counsel with an adverse interest (Hammett v. McIntyre (1952) 114 Cal.App.2d 148, 158). Conversely, “there is no rule of automatic reversal or ‘inherent’ prejudice applicable to any category ofcivil instructional error, whether of commission or omission.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) Defendantrelies on Miramaranda series of other Court of Appeal decisions, including a recent decision of this court, in support ofhis assertion that the trial court’s error in failing to issue a statement of decision is reversible per se. In Miramar, the court held the trial court’s failure to render a formal statement of decision in accordance with section 632 constituted reversible error per se, explaining a statement of decision is necessary to frame the issues for appeal, assist the appellate court in its review, and permit the parties to make proposals and objections concerning its content. (Miramar, supra, 163 Cal.App.3d at p. 1129.) The court did not mention the constitutional mandate that no judgmentshall be set aside in the absence of a miscarriage ofjustice. (See Cal. Const., art. VI, § 13.) Instead, the court simply stated: “We imposeno substantial burden upontrial courts by insisting upon adherenceto the legislative mandate as explicated by [former] rule 232. Thetrial court is specifically authorized to designate a party to prepare the statement of decision [citations] and thus is required only to review the statement and any objections thereto and to makeor order to be madeanycorrections, additions, or deletions it deems necessary or appropriate. [J] Were we, conversely, to condonea total or even a material failure bytrial courts to observe the prescribed procedure for revealing the basis for their respective decisions, we would be thrusting a quite substantial burden uponthelitigants and also upon the appellate courts. At the outset of virtually every appeal of such a case, there would emerge a threshold question as to precisely what werethe ‘principal controverted issuesat trial.’ It is ineluctable that such classification could most easily be madebythe trial judge. More importantly, where a request for a statement of decision has been made and an inadequate statement or no statement whatsoeverhas been provided, then each appealis inevitably based upon what is tantamountto a claim that the judgmentis not supported by substantial evidence. This in turn requires both the litigants and the appellate court to conduct an examination of the entire record in order to properly review the trial court decision.” (Miramar, supra, at pp. 1129-1130.) Presiding Justice Spencer filed an opinion concurring in the result. She did so “Tw]ith great reluctance,” explaining: “Ordinarily, I consider a rule of per se reversibility inadvisable when,as in the instant matter, there is no substantial evidence to support a judgment for the appealing party and a reversalrectifies no miscarriage ofjustice. In the past, this court has used the harmlesserror standard to affirm a judgment notwithstanding the presence of the same procedural error present in the instant case. [{[] However, it now appearsthe practice in the trial courts of issuing minute orders, such asthat utilized in the caseat bar, in lieu of complying with the requirements of section 632 is on the increase. The far-reaching and burdensomeeffects of that practice mandatethat it end immediately. Since I perceive no meansof effecting that result other than per se reversal, [ join with the majority.” (Miramar, supra, 163 Cal.App.3d at pp. 1130-1131 (conc. opn. of Spencer, P. J.).) Neither the Miramar majority nor any of the other decisions cited by defendant mention the constitutional requirement of a miscarriage ofjustice, much less attempt to explain whya trial court’s error in failing to issue a statement of decision is not subject thereto. (Miramar, supra, 163 Cal.App.3d at pp. 1127-1129; see also Wallis v. PHL Associates, Inc. (2013) 220 Cal.App.4th 814, 825; Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal.App.4th 654, 659-662; Whittington v. McKinney (1991) 234 Cal.App.3d 123, 125-129; Social Service Union v. County ofMonterey (1989) 208 Cal.App.3d 676, 681; Gordon v. Wolfe (1986) 179 Cal.App.3d 162, 165, superseded by statute on another point as stated in In re Marriage ofGray (2002) 103 Cal.App.4th 974, 978-979; R. E. Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal.App.3d 50, 54 (R. E. Folcka); In re Marriage ofMcDole (1985) 176 Cal.App.3d 214, 219, disapproved on another ground by Jn re Marriage ofFabian (1986) 41 Cal.3d 440.)4 4 This court recently followed Miramar in Wallis v. PHL Associates, Inc., supra, 220 Cal.App.4th at page 825. However, in Wallis the parties did not raise the applicability of Wemaynotignorethe constitutional requirement of a miscarriage ofjustice as a prerequisite for reversal. (See generally Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802; Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580.) Moreover, as weshall explain, Miramar’s holding is at odds with decisions of our Supreme Court applying formersection 632. “[S]ection 632 originally required written findings of fact and conclusions of law in both superior and municipal courts. [Citation.] Such findings were considered fundamental to the decisionmaking process. [Citation.] The purpose of the requirement wasdescribed in Frascona v. Los Angeles Ry. Corp. (1920) 48 Cal.App. 135, 137-138 [191 P. 968]: ‘The right to findings is a substantial right, as inviolate, under the statute, as thatoftrial by jury underthe constitution. [Citation.] The code provision requiring written findings of fact is for the benefit of the court and the parties. To the court it gives an opportunity to place uponrecord, in definite written form, its view of the facts and the law of the case, and to makethe case easily reviewable on appeal by exhibiting the exact grounds upon which the judgmentrests. To the parties, it furnishes the means, in many instances, of having their cause reviewed without great expense. It also furnishes to the losing party a basis of his motion for a newtrial; he is entitled to know theprecise facts found by the court before proceeding with his motion for a newtrial, in order that he may be able to point out with precision the errors of the court in matters either of fact or law. [Citation.]’” (R. E. Folcka, supra, 191 Cal.App.3d at pp. 52-53.) Notwithstanding the “fundamental,” “substantial,” and “inviolate” nature of the right to express findings under former section 632, as expressed in R. E. Folcka, in Edgar v. Hitch (1956) 46 Cal.2d 309, our Supreme Court held that a trial court’s failure to make findings on the material issues as specified in former section 632, is subject to a article VI, section 13 of the California Constitution. Nor apparently did the parties in many,if notall, of the cases following Miramar. 10 prejudicial error analysis. (Edgar v. Hitch, supra, at pp. 312-313.) There, Edgar agreed to sell hay to Hitch for $42.50 per ton. Hitch claimed the purchase price was $32.50 per ton and paid Edgarfor 66 tonsat this rate with two checks, the second of which included the notation: “ ‘Pd. in full for all Hay Bought From John Edgar @ 32.50 Ton.’ ” (id. at p. 310.) Edgar sued for the unpaid balance of $660 then cashed the checks. Following a benchtrial, the trial court found the agreed price was $42.50 per ton and awarded Edgar the unpaid balance. Thetrial court did not make any findings on Hitch’s accord and satisfaction defense. (/d. at pp. 310-311.) On appeal, Hitch argued the evidenceat trial established such a defense as a matter of law. In response, Edgar pointed to evidence that Hitch knew the price was $42.50 per ton and argued Hitch’s “insistence on a price of $32.50 wasnot the result of a genuine misunderstandingora failure of honest minds to meet but was merely an attempt to “get away with’ paying less than he originally agreed to pay.” (Ud. at pp. 312, 311.) Our Supreme Court reversed, explaining, “Section 632 of the Code of Civil Procedure required the trial court to make findings on the material issues in the case, and the findings must be examined to determine whether the judgment was based on the defendant’s bad faith. The defendantis entitled to a finding on the validity of his defense of accord andsatisfaction. [Citations.] In the absence of such a finding, sufficient support for the judgmentfor plaintiff cannot be ascertained. Therefore, under the circumstances here presented a failure to make a finding on the defense of accord and satisfaction of a bona fide dispute would constitute prejudicial error.” (Edgarv. Hitch, supra, 46 Cal.2d at p.3 12, italics added; see also Bailey v. Leeper (1956) 142 Cal.App.2d 460, 465 [holdingtrial court’s error in failing to make specific findings “is one in procedure and therefore not reversible under the Constitution (art. VI, § 4 1/2 [predecessorto art. VI, § 13]) unless from an examination ofthe entire record we can say that the error complained of has resulted in a miscarriage ofjustice”].) 11 A 1968 amendmentto section 632 abolished the mandatory requirementfor findings of fact and conclusionsof law and substituted the alternatives of (1) findings on request or (2) a written judgment. In Guardianship ofBrown (1976) 16 Cal.3d 326, our Supreme Court held that the failure to issue requested findings on material issues under section 632 was subject to a prejudicial error analysis. Relying on its earlier decision in Edgarv. Hitch, supra, 46 Cal.2d 309, 312, our Supreme Court observed “that unless waived, express findings are required on all material issues raised by the pleadings and the evidence, and failure to find on a material issue will ordinarily constitute reversible error.” (Guardianship ofBrown, supra, 16 Cal.3d at p. 333, italics added.) There, the trial court found Brown to be incompetent and, over the objection of his wife, issued an order appointing Brown’s mother guardian ofhis person and estate and authorizing the mother to take Brown to New York for medical care. (/d. at pp. 330-331.) No finding was made regarding whetherit was in the best interest of Brown for his mother, rather ‘than his wife, to be appointed guardian. In concludingthetrial court’s failure to make such a finding constituted reversible error, the court first explained that the issue was properly raised: “The primary thrust of appellants’ case before the trial court wasthat it wasin the best interest of the incompetent to remain with his wife in his homein San Francisco pursuing the rehabilitation program which she had organized and coordinated for him. [The wife] argued that upon a finding of incompetency the only consideration governing the appointmentof a guardian is the best interest of the incompetent. As noted, in her objections to the court’s findings, she specifically requested a finding on that point. No express finding in that respect was made. If such a finding was required, [the wife’s] pleadings, briefs and requests for specific findings weresufficient to raise and frame the best interest issue and apprise the court of its obligation to make such a finding.” (Cd. at p. 334.) The court then explained that such a finding was required becausethe best interest of the incompetent is a material issue in every guardianship proceeding, particularly where there are competing petitions for appointment. (/d. at 12 p. 335.) Finally, after reviewing the evidence, the court concluded: “Nofinding having been made onthis material issue, and [the wife] having introduced substantial evidence to support such findingin her favor[citation], we conclude that the order appointing[the mother] guardian must be reversed.” (/d. at p. 336; see also McAdams v. McElroy (1976) 62 Cal.App.3d 985, 996 [“failure to make an express finding on a material issue is not always prejudicial”’}.) While the Legislature has since amended section 632, most notably in 1981 by abolishing the requirementof findings and conclusionsandinstituting the statement of decision process utilized today (Raville v. Singh (1994) 25 Cal.App.4th 1127, 1133, fn. 5; former § 632), a statement of decision is equivalent to the findings of fact and conclusions of law required by former section 632 (see R. E. Folcka, supra, 191 Cal.App.3d at p. 54), and “the case law on findings and conclusions under former section 632 can be applied by analogy to determine issues raised under present section 632” (McCurter v. Older (1985) 173 Cal.App.3d 582, 592, disapproved on other groundsin Jn re Marriage ofArceneaux (1990) 51 Cal.3d 1130, 1137). Forall the foregoing reasons we decline defendant’s invitation to reverse the judgment and remandthe matter withoutfirst considering whetherthetrial court’s failure to render a statement of decision setting forth “the basis upon which the Court awarded special damages,the basis upon which the court awarded emotional distress damages, the basis upon which the court awarded past and future medical expenses, and the basis upon which the court granted lost wages” resulted in a miscarriage ofjustice.> As we shall explain,it did not. 5 Defendant also requestedthat the trial court “issue a statement of decisionas to the credibility of the witnesses presented by the Plaintiff and each of the witnesses presented by [defendant], [and] the value the Court placed [on] all said witnesses... .” He does not mention this specific request in his appeal. Moreover,a trial court need not discuss each question listed in a party’s request for a statement of decision, but need only explain 13 II Defendant Forfeited Any Right to Apportionment UnderProposition 51 by Failing to Raise the Issue at Trial Defendant sought a statement of decision setting forth, among other things, “the basis upon which the court awarded emotional distress damages... .” According to defendant, “Had thetrial court set forth ‘the factual and legal basis’ upon which it awarded general damagesagainst [him], . . . the parties and this Court would know what percentage of fault the court attributed to him and whatpercentageto [plaintiff's] father, or whether the $250,000 award represents [defendant’s] proportionate share of some larger but unidentified measure of noneconomic damages.” As weshall explain, defendant forfeited any right to apportionmentbyfailing to raise the issueattrial. Civil Code section 1431.2, which constitutes the heart of Proposition 51, states in pertinent part: “In any action for personal injury .. . based upon principles of comparative fault, the liability of each defendant for non-economic damagesshall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damagesallocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgmentshall be rendered against that defendantfor that amount.” (Civ. Code, § 1431.2, subd. (a).)® A defendant seeking a Proposition 51 offset must not only plead comparative fault as an affirmative defense, he the factual and legal basis for the court’s decision regarding the principal controverted issuesat trial as are listed in the request. (Hellman v. La Cumbre Golf& Country Club (1992) 6 Cal.App.4th 1224, 1230.) The only issueslisted in the requestrelate to damages. Thus, any duty thetrial court had to render a statement addressing the credibility of witnesses waslimited to the issues relating to damages specified in defendant’s request. 6 “Non-economic” damagesare such “subjective, non-monetary losses[as] pain, suffering, inconvenience, mental suffering, emotionaldistress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.” (Civ. Code, § 1431.2, subd. (b)(2).) 14 also must prove the comparative fault of others, and request that an allocation be made. (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 366-369; Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1398-1399; Conrad v. Ball Corp. (1986) 24 Cal.App.4th 439, 444- 445; Evid. Code, § 500.) Here, defendant pleaded comparative fault as an affirmative defense, alleging on information andbelief that plaintiff “as well as other individuals and entities as yet unknown to Defendant,” werelegally at fault for plaintiff’s injuries, “and therefore any liability should be apportioned amongPlaintiff andall other such parties . . . based upon their respective percentages of comparative fault or legal responsibility.” Defendant, however, never raised the issue of apportionmentattrial. He did not requestthat noneconomic damages,if any, be apportioned between himself and any other individual or entity, much less between himself and plaintiff's father. Nor did he argue how they should be apportioned. By failing to do so, defendant forfeited any right he may have had to apportionment. (See Del Cerro Mobile Estates v. Proffer (2001) 87 Cal.App.4th 943, 951.) Defendant suggeststhe trial court’s failure to issue a statement of decision somehow deprived him of the opportunity to request that noneconomic damages be apportioned. Not so. While defendant doesnot dispute that his request for a statement of decision is silent on the issue of apportionment, he claimsthat “[h]ad thetrial court responded to [his] request for a statement of decision, [he] would have had the opportunity to file objections bringing the [issue] of apportionment. . . to the court’s attention and requiring the court to address[it].”’” Having failed to raise the issue of apportionmentat trial or in his request for a statement of decision, defendant would have 7 Pursuant to California Rules of Court, rule 3.1590(g), “Any party may, within 15 days after the proposed statement of decision and judgment havebeenserved, serve andfile objections to the proposed statement of decision or judgment.” 15 had nobasis to object to the trial court’s proposed statement on the groundthe trial court failed to apportion plaintiff's noneconomic damages between himself and plaintiff's father. Thus, defendant’s assertion that he was denied the opportunity to request apportionment lacks merit. The law is clear. A defendant seeking apportionment of noneconomic damagesunderProposition 51 must plead comparative fault as an affirmative defense, prove the comparative fault of others, and request that an allocation be made. (Wilson v. Ritto, supra, 105 Cal.App.4th at pp. 366-369; Kitzig v. Nordquist, supra, 81 Cal.App.4th at pp. 1398-1399; Conrad v. Ball, supra, 24 Cal.App.4th at pp. 444-445; Evid. Code, § 500.) Given those requirements, defendant’s claim that he was entitled to defer the issue until after trial is without merit. Gordonv. Wolfe, supra, 179 Cal.App.3d 162, relied on by defendant, does not dictate a contrary result. There, the court held that where a plaintiff seeks general and special damages,“ ‘it is the duty of the trial court, if it finds for plaintiff, to find separately the general damages and the several categories of special damages.’ ” (/d. at p. 167) In that case, the judgment was for a lump sum figure; therefore, neither the parties nor the court of appeal knew whether, or in what amount, the award wasintended. (Ud. at pp. 167-168) Thus, the court found “[w]ithout a statement of decision, the judgmentis effectively insulated from review by the substantial evidence rule... .” (Jd. at p. 168.) Consistent with the decision in Gordon v. Wolfe, here, the trial court found separately the general damages and the several categories of special damages, awarding plaintiff $44,800 in lost income, $10,296 in past and future medical expenses, and $250,000 in noneconomic damages. Because defendant forfeited any right he may have had to apportionmentof noneconomic damages under Proposition 51, the trial court’s failure to issue a statement 16 of decision setting forth the basis upon which it awarded emotional distress damages did not, and could not, result in a miscarriage ofjustice.® Ill The Trial Court’s Lost Income Calculation Must Be Reduced to Conform With The Evidence Presented At Trial Defendant next contendsthetrial court’s award for lost income must be reversed becauseit is based on speculation and conjecture and unsupported by substantial evidence. As weshall explain, $42,120 of the trial court’s $44,800 lost income calculation is supported by substantial evidence. | Attrial, plaintiff testified she was taken off work at various times from September 2005 until December 2007 due to her overwhelming anxiety and depression caused by the sexual abuseinflicted upon her by defendant and her father. She was taken off work by her primary care physician for six weeks during September and October 2005, and by Dr. Wiggen from May 2006 until November 2006, and from March 2007 until December 2007. During those periods,plaintiff, who has a degree in business management, was employed by Task Technologies as a technician for credit card equipment and waspaid “maybe $13.00, $12.00 an hour.” During his closing argument, plaintiff's trial counsel asked the court to award plaintiff $44,800 in lost income. In doingso, he noted plaintiff “testified as to her lost income, and it’s more specifically detailed in the Trial Brief that weprepared and submitted priorto trial.” That brief is not part of the record on appeal; thus, whatever additional argumentis containedtherein is not before us on appeal. The trial court awarded plaintiff $44,800 in lost income damages. On appeal, defendant argues plaintiff “could not say whather rate of pay was 29 66whenshetook the leaves,” “could [not] state how long she was on leave,” and “offered 8 Because we conclude defendantforfeited this issue, we need not considerplaintiff's claim that intentional tortfeasors are not entitled to apportionment under Proposition 51. 17 no evidence of how manyhours a week or month she was working whenshe took any leave...” Thus, according to defendant, “the trial court could only speculate on the amount of [her] lost income.” “ “Wherethe fact of damagesis certain, the amount of damages need not be calculated with absolute certainty. [Citations.] The law requires only that some reasonable basis of computation of damages be used, and the damages may be computed even if the result reached is an approximation. [Citation.]’” (Sargon Enterprises, Inc. v. University ofSouthern California (2012) 55 Cal.4th 747, 774-775.) Contrary to defendant’s assertion, evidence was presentedthat plaintiff was working at Task Technologies during each ofher three leaves of absence, and that she was paid approximately $12 or $13 an hour. Plaintiffs failure to recall her exact rate of pay or the precise dates of her absences did not preclude the court from calculating her lost income. (See ibid.) Moreover, in the absence of evidenceto the contrary, the trial court reasonably could infer plaintiff was employed full-time. Thus, there is ample evidence to support a finding plaintiff lost income in the amount of $42,120 (81 weeks of missed work, multiplied by 40 hours per week,is 3,240 hours — 3,240 hours of missed work, multiplied by $13 an hour is $42,120 of lost income). In an attempt to justify the additional $2,680 awardedbythetrial court, plaintiff arguesthere is substantial evidence from whichthetrial court could have concluded she wasentitled to “future wageloss for [plaintiffs] time spent in post trial psycho-therapy” in the amount $2,704. (Italics added.) In support of her argument, she relies on Dr. Wiggen’s testimony that it would be in plaintiff's best interest to continue therapy on a weekly basis for another year. From that testimony,plaintiff posits that if she attended 52 counseling appointments, “it would be reasonable for the court to conclude based on experience that the appointments would occur during normal work hours and due to travel time to and from the appointments would result in [plaintiff] missing a half day of workto attend each appointment. At the rate of four hours lost per appointment, 18 [plaintiff] would lose 208 hours of work,” which at a rate of $13 per hour, amounts to $2,704 in future wagesaftertrial. While plaintiff is entitled to recover loss of future income, such damages must be sufficiently certain. (Civ. Code, § 3283; Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 799.) Here, plaintiff presented no evidence she would be required to attend counseling in the middle of the workday. And even assuming she would be required to do so, she fails to point to any evidence that would support a finding she would be required to miss four hours of work for each counseling appointment. Indeed, the evidence presented suggests otherwise. At the timeoftrial, plaintiff was working in Rocklin, hardly a remote location. Dr. Wiggentestified that a typical counseling session lasts 50 to 60 minutes. Onthis record, there is no basis to concludeplaintiff would be required to miss anything close to 208 hours of work to attend the additional 52 sessions of counseling recommended by Dr. Wiggen. We need not consider plaintiff's assertion that the additional $2,680 may be explained as prejudgmentinterest under either Civil Code sections 3287, subdivision (a) or 3288, because there is no indication she ever moved for or requested the trial court to include such interest as an element of damagesin the first instance. Defendant does not assert he was prejudiced bythetrial court’s failure to issue a statement of decision setting forth the basis upon which it awardedlost income, and we are unable to discern how a statement of decision could have assisted defendantin challenging the sufficiency of the evidence. Although defendant could havefiled objections thereto, objections are allowed only to correct omissions and ambiguities in the statement of decision, not to reargue the evidence, as defendant seeksto do here. (See Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292.) Defendant doesnote that “[i]t is a mystery howthe trial judge came up with [a] figure more than $3,000 higher... . [] Of course,had the judge issued a statement of decision, this court could have some insight into his calculations.” As set forth above,it is plaintiff, if anyone, whois 19 prejudiced by the lack of a statement of decision on “how thetrial judge came up with [a] figure” that exceeds $42,120. Absent a showing defendant wasprejudiced in pursuing his appeal or that we are somehow hamperedin our review of the same,the lack of a statement of decision on the issue of lost income does not warrant remand. IV DefendantIs Entitled to a Setoff From Plaintiff's Award of Economic Damages Finally, defendant contendsthetrial court erred in failing to offset his parent’s pretrial settlement against plaintiff's special economic damage award pursuantto section 877. As weshall explain, the facts relevant to a determination of this issue are undisputed, and the only issue that remains is whether section 877 applies, a legal issue we must decide for ourselves. Accordingly, remand for the preparation of a statement of decision is not required. Having considered the issue, we shall conclude section 877 does apply, and the amountof special economic damages defendant must pay plaintiff must be reduced from $55,096 to $4,752. Webegin our analysis by addressing the timing of defendant’s request that he receive a setoff from plaintiff's award of economic damages. Although defendantfailed to raise this issueattrial, there is authority for allowing the issue of an offset to be raised for the first time in objections to a proposed statement of decision. (Knox v. County of Los Angeles (1980) 109 Cal.App.3d 825, 834-835 (Knox).) In Knox, the court reasoned ‘Ti]t was appropriate for [defendant] to defer this issue until the court had indicated that [he was] to be found liable. There was no occasion to consideran offset until liability was found; and there is ample precedent for deferring the offset issue until after the determination of the merits.” (/d. at p. 834.)? Hadthetrial court issued a statement of 9 The same cannotbesaid with respect to allocation of noneconomic damages under Proposition 51, which is an affirmative defense and is inextricably intertwined with the issue of defendant’s own liability for plaintiff's injuries. (Ante, pp. 14-15.) 20 decision in this case, defendant could have raised the issue of an offset in his objections thereto. Nevertheless, we need not remand the matter for the preparation of a statement of decision becausethere is no factual dispute for the trial court to resolve. (See Enterprise Ins. Co. v. Mulleague (1987) 196 Cal.App.3d 528, 540 [“if there is no factual dispute, there is nothing to inform the appellate court about except the law and on questions of law the reviewing court must decipher the law for itself’].) As set forth above,plaintiff concedes she was paid $275,000 in settlement of her claims against defendant’s parents. The onlyremaining issue is whether section 877 applies -- a legal issue we must decide for ourselves. (Enterprise Ins. Co. v. Mulleague, supra, at p. 540.) Turning to the merits, plaintiff sued defendant for sexual battery, and defendant’s parents for negligence. Plaintiff claimed defendant’s parents failed to reasonably care for, supervise, direct, oversee, and protect her from the harm inflicted upon her by defendant. Prior to trial, plaintiff settled with defendant’s parents for $275,000 in exchange for a general release. Section 877 mandates, “Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgmentis given in good faith before verdict or judgmentto one or more of a numberoftortfeasors claimed to be liable for the same tort, .. . 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 amountstipulated by the release, the dismissal or the covenant, or in the amountofthe consideration paidfor it whichever, is the greater. [{{] (b) It shall discharge the party to whom it is given from all liability for any contribution to any other parties. ...” (Italics added.) Because, as discussed above, noneconomic damagesare no longerjoint obligations after Proposition 51, the setoff contemplated under section 877 applies only to economic damages. (Espinoza v. Machonga (1992) 9 Cal.App.4th 268, 272.) In addition, “a nonsettling defendant [is] entitled to a setoff from plaintiff's award of economic damages in the amountof settlements paid prior to trial by other defendants, 21 despite the jury’sfinding that the settling defendants had nofaultfor plaintiff's injuries.” (Poire v. C.L. Peck/Jones Brothers Construction Corp. (1995) 39 Cal.App.4th 1832, 1837 (Poire), italics added.) “This satisfies the fundamental goals of section 877, to preclude a double recoveryarising out of the same wrong and encouragesettlements.” (McComberv. Wells (1999) 72 Cal.App.4th 512, 516-517.) As we observed in Reedv. Wilson (1999) 73 Cal.App.4th 439, 444, “the offset provided for in section 877 assures that a plaintiff will not be enriched unjustly by a double recovery, collecting part of his total claim from onejoint tortfeasor and all of his claim from another.” Plaintiff argues section 877 is inapplicable here because defendant and his parents were not “claimedto beliable for the sametort,” as required by section 877. Plaintiff observes, “The judgmentagainst [defendant] was for his multiple intentional torts by way of his sexual assaults against[plaintiff], not for negligence as was claimed against his parents ....” Plaintiff misapprehends the meaning of the phrase “the sametort” as used in section 877. Separate causes of action are not necessarily separate torts. “[T]he keyis that the tortious acts of the codefendants operate to produce a singularinjury, irrespective of the legal theories on whichthe plaintiff bases his or her claims in framing the complaint.” (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1361.) Here, plaintiff claimed defendant and his parents were liable for the same injuries. That is sufficient for purposesof section 877. (Oliveira v. Kiesler, supra, at p. 1361.) Plaintiff also asserts the application of section 877 conflicts with section 875, subdivision (d), which provides, “There shall be no right of contribution in favor of any tortfeasor who hasintentionally injured the injured person.” The court in Wouldridgev. Zimmerman(1971) 21 Cal.App.3d 656, 658-659 persuasively rejected this argument, explaining: “Sections 877 and 875 were adoptedat the same time (Stats. 1957, ch. 1700) and as part of a comprehensivestatutory plan. Thus there is even more reason than in the usual situation to seek a construction which will reconcile the several provisions, and avoid a conflict obviously not intended by the Legislature. [{] It is only in a strained 22 sense that the pro tanto reduction approximates contribution. The purpose ofthe rule requiring such reduction is to avoid the double recovery and unjust enrichment which a plaintiff would enjoy if he were able to collect part of his total claim from one,andall from another[citations]. [§]] Noris there true conflict between sections 875 and 877. The formeris designed only to establish a right of contribution amongjoint tortfeasors equally liable to a plaintiff. It abrogates the commonlaw rule and recognizes equitable considerations to be applied only amongjoint tortfeasors themselves. Section 877, on the other hand, considers only the right of the plaintiff against the several tortfeasors. ‘The “equities” .. . considered [by section 875] are those of the wrongdoers among themselves ....’ ” Moreover, by its terms, section 875 applies only to contributions among joint tortfeasors after a judgment has beensatisfied. (Wouldridge v. Zimmerman, supra, at p. 659.) It has no application to setoff rights arising from the pretrial settlement in the instant case. (/bid.) Accordingly, we apply the well-established formula for calculating the offset developed by the court in Espinoza v. Machonga, supra, 9 Cal.App.4th at page 277. The portion of the settlement which maybesetoff from a judgment of economic damagesis determined by application of the percentage of the economic damages award in relationship to the total award of damages. (/bid.) Here, plaintiff is entitled to $52,416 for economic damages ($42,120 for lost wages, plus $10,296 for past and future medical expenses) which equals 17.332416 percent ofthe total $302,416 modified award.1° Defendantis entitled to offset 17.332416 percent of the $275,000 pretrial settlement. This equals $47,664. Consequently, the judgment must be modifiedto reflect the $47,664 offset, which reduces the total economic damage award to $4,752. 10 Thesefiguresreflect the reduction in lost income previously discussed. 23 Plaintiff suggests reducing defendant’s liability for plaintiff's economic damages to $4,752 “smacks of inequity.” Unlike Proposition 51, however, section 877 is not concerned with limiting a defendant’s liability in direct proportion to his percentage of fault. Rather, liability is joint and several. Thus, the fact that defendant’s proportionate share of responsibility for the economic damages maybefar less than his proportionate share of responsibility for plaintiff's injuries is irrelevant. (See Poire, supra, 39 Cal.App.4th at pp. 1837-1840 [holding nonsettling defendantentitled to a setoff from plaintiff's award of economic damagesdespite jury’s finding settling defendants had no fault for plaintiff’s injuries]; see also McComberv. Wells, supra, 72 Cal.App.4th at pp. 516-517 [holding jury’s finding settling defendants not negligentirrelevant for purposesof section 877 setoff andaffirming setoff reducing plaintiff's economic damage award to zero].) DISPOSITION The judgment against defendant is modified to reflect the total award of special economic damages(lost income,plus past and future medical expenses) is $4,752 and the total judgment is $254,752. The amount of general noneconomic damages remains the same. Eachparty shall bear their own costs. BLEASE , Acting P.J. I concur: HOCH _J. 24 Robie, J. concurring I fully concurin this opinion. I write separately because I recently also concurred in Wallis v. PHL Associates, Inc. (2013) 220 Cal.App.4th. 814 in which the court reversed for failure to issue a statement of decision. Wallis relied on Miramar Hotel Corp. v. Frank. B. Hall & Co. (1985) 163 Cal.App.3d 1126. In Wallis the parties did not raise the applicability of the provision of our Constitution (Cal. Const., art VI, § 13) or Code of Civil Procedure section 475. Nor apparently did the parties in the many cases following Miramarasthe instant opinion notes. Since the issue wasnotraised in Wallis, whether a miscarriage ofjustice existed in that case was not decided. The lesson I have learned is that per se rules should be looked uponcritically, as stated by Presiding Justice Spencer in Miramar. (Miramar Hotel Corp. v. Frank. B. Hall & Co., supra, 163 Cal.App.3d at pp. 1130-1131.) ROBIE J. IN THE Court of Appeal of the State of California IN AND FOR THE THIRD APPELLATE DISTRICT JAN 30 2014 COURT OF APPEAL- THIRD DISTRICTF.P., DEENA C. FAWCETT Plaintiff and Respondent, BY Deputy Vv. JOSEPH MONIER, Defendant and Appellant. C062329 Sacramento County No. O6AS00671 BY THE COURT: Appellant's petition for rehearing is denied. Dated: January 30, 2014 BLEASE,Acting P.J. cc: See Mailing List IN THE Court of Appeal of the State of California IN AND FOR THE THIRD APPELLATEDISTRICT MAILING LIST Re: F.P. v. Monier C062329 Sacramento County No. O6AS0067 1 Copies of this document have beensentto the individuals checked below: John P. Henderson Law Offices of John P. Henderson 8150 Sierra College Boulevard, Suite 170 Roseville, CA 95661 Jay-Allen Eisen Jay-Allen Eisen Law Corporation 2431 Capitol Avenue Sacramento, CA 95816 Sacramento County Superior Court 720Ninth Street Sacramento, CA 95814 PROOF OF SERVICE (CCP Sections 1013a, 2015.5) I, Michelle Micciche, declare: I am employed in the County of Sacramento, State of California. I am over the age of eighteen years and not a party to the within cause. My business address is 2431 Capitol Avenue, Sacramento, California 95816. On Tuesday, February 18, 2014, I served the within PETITION FOR REVIEW on the interested parties in said action by depositing true copies, enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail addressed as follows: John P. Henderson Clerk Law Offices of John P. Henderson Sacramento County Superior Court 8150 Sierra College Blvd., Suite 170 720 9" Street Roseville, CA 95661 Sacramento, CA 95814 [Attorneys for Plaintiff and Respondent: F.P.] Clerk Third District Court of Appeal 914 Capitol Mall, 4" Floor Sacramento, CA 95814 Thereis delivery by United States mail at each ofthe places so addressed,or there is regular communication by mail betweenthe place of mailing and eachofthe places so addressed. I declare under penalty ofperjury underthe lawsofthe State of California that the foregoing is true and correct, and that this declaration was executed on February 18, 2014 at Sacramento, California, ikAVN.Acy‘wcMICCICHE | {00040569; 1} TO BE FILED IN THECOURT OF APPEAL APP-008 COURT OF APP THIRD — APPELLATE DISTRICT, DIVISION Court of Appes! Casa Number — C062329\TTORNEYOR PARTY WITHOUTATTORNEY Stete f, andeddrass): “JAY-ALLENEISENLAWCORPORATION SapetarCoatGaNovis -—JAY-ALLEN EISEN,SBN: 042788 - AARON S, MCKINNEY,SBN: 260630 06AS00671 2431 CAPITOL AVENUE —_———— SACRAMENTO,CALIFORNIA 95816 TELEPHONE NO: 916-444-617] —FAXNO. (Catone: 916-441-5810 E-MAIL ADDRESS (Optaray: jac@eiseniegal.com ATTORNEYFOR (vemay: J‘oseph Monier APPELLANTIPETMONER: JOSEPH MONIER RESPONDENTIREAL PARTY IN INTEREST: FATTEN (LEILA) PABLO CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (Check one): INITIAL CERTIFICATE [_] SUPPLEMENTAL CERTIFICATE Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form fortheInitial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application In the Court of Appeal, and when you file a petition foran extraordinary writ. You may also use this form as a supplemental certificate when you feam ofchanged or additional Information that must be‘disclosed. 1. This form Is being submitted on behalf of the following party (name): Joseph Monier 2. a. [7] Thefe are noInterested entities or persons that must befisted in this certificate under rule 6.208. . b. £2] Interestedentities or persons required to be fisted under rule 8.208 are asfollows: ileofterested a (1) : @) (3) (4) (5) [7] Continued on attachment 2. The undersigned certifies that the above-listed persons or entities (corporations, partnerships,firms, orany other association, but not including governmententities or theiragencies) have elther(1) an ownership Interestof 10 percent or tore in the party if it is an entity; or (2) a financial or other Interest in the outcome ofthe proceeding that the justices should consider in determining whether todisqualify themselves, as defined in rule 8.208(¢)(2). Date: August 11, 2011 [AY-ALLEN EISEN | >bl (TYPEOR PRINTNAME) 7 (SiGhATGREOFPARTYORATTORNEY) ao! Page tof? AoprovadOptraUse CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Cal Rides ofOeeeatte APP-006 (Rev. January 1, 2006]