Mayes v. Bryan

Filed 4/25/06 Mayes v. Bryan CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Jan A. Pluim, Judge. Affirmed.

Law Offices of Bruce G. Fagel and Associates, Bruce G. Fagel, Richard Akemon, and James E. Wright for Plaintiffs, Respondents, and Cross-Appellants.

Thelen Reid & Priest, Curtis A. Cole, Kenneth R. Pedroza, and E. Todd Chayet; Schmid & Voiles, Susan Schmid, and Rebecca J. Hogue for Defendants, Appellants, and Cross-Respondents.

Story Continued from Part II………

II. Plaintiffs' cross-appeal.

Plaintiffs' sole assignment of error lies in the court's calculation of damages, specifically, the computation of non-economic damages. They posited two approaches, either of which, together with costs of $37,146.22, would have permitted plaintiffs to obtain their Code of Civil Procedure section 998 prejudgment interest on their offer of $1 million in settlement.

The jury awarded plaintiffs $3 million in non-economic damages, and $1,366,357 in economic damages, for a total verdict of $4,366,357. The jury determined that defendants' proportionate liability was 20 percent, and the settling parties' was 80 percent. Plaintiffs recovered a total of $650,000 from the settling defendants.[1]

Following Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 121 and Espinoza v. Machonga (1992) 9 Cal.App.4th 268, the trial court computed the award by first reducing the non-economic damage award from $3 million to $250,000 pursuant to MICRA, for a total damage award of $1,616,357 ($1,366,357 + $250,000). Based on this new number, the court then calculated the ratio of economic to non-economic damages to be 84.5 percent ($1,366,357 = 84.5% x $1,616,357). The court then calculated that defendants were entitled to a benefit set off of $549,250 from the economic portion of the proceeds of the settlement with the settling defendants (84.5% x $650,000 = $549,250). The court finally considered the jury's allocation to defendants of 20 percent liability pursuant to Proposition 51 for a total of $50,000 in non-economic damages. The equation looked like this:

$1,366,357 Total economic damages awarded

- 549,250 Econ. portion of settlement subject to setoff

$ 817,107 Defendants' share of remaining econ. damages

+ 50,000 Defendants' 20 percent share of MICRA cap

$ 867,107 Defendants' liability to plaintiffs

Leaving aside how it calculated the non-economic damages, the trial court's computation of damages defendants owed to plaintiffs was otherwise correct. (Espinoza v. Machonga, supra, 9 Cal.App.4th at p. 273.) Plaintiffs' contention is that it was unfair for the court to first reduce the non-economic verdict of $3 million to the statutory MICRA maximum of $250,000 and then reduce it further under Proposition 51 to reflect the percentage of fault attributed to the settlement plaintiffs received.

The issue here is the interplay between MICRA (Civ. Code, § 3333.2), Proposition 51 (Civ. Code, § 1431.2), and settlements with other tortfeasors who are subject to MICRA. (Code Civ. Proc., § 877.)

Civil Code section 3333.2, an essential part of MICRA, limits the size of any award of non-economic damages in an action for injury against a health care provider based on professional negligence. (Johnson v. Superior Court (2002) 101 Cal.App.4th 869, 878.)[2]

Proposition 51 eliminated joint and several liability for non-economic damages but retained it for economic damages. (Espinoza v. Machonga, supra, 9 Cal.App.4th at pp. 272-273.) Accordingly, Civil Code section 1431.2, subdivision (a) states, â€