MINOR v. ESCONDIDOUNIONSCHOOL DISTRICT

Filed 4/13/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story continued from Part I ..

In arguing for inclusion in the special verdict forms of questioning not just if the named employee defendants were negligent, but also whether three other nondefendant employees, as well as "any other employee of the District," were negligent, plaintiffs' counsel stated to the court:

"You [the trial court] took out the jury instruction that I wanted that says, 'If it is attributed to any other employee you must find the [District negligent] because they are responsible.' [] . . . [] Your Honor, I think to do it that way would invite error. Here is the reason. Because if they are blaming other employees like Hahn, Starr, . . . [t]he law is very specific─there is a jury instruction on it; you took that jury instruction out─if any employee acting within their course and scope [were] negligent . . . ." (Italics added.)

The court then asked defense counsel, "Is that what you are going to argue?" Defense counsel responded, "Absolutely not." Later, defense counsel stated, "We are not going to blame Ms. Starr, Ms. Ayala, or Ms. Hahn." The trial court then asked, "Are you going to make an argument that any employee of the defendants [is] potentially at fault?" (Italics added.) The District's counsel answered, "No." Thereafter, defendants did not argue to the jury during closing argument that any employee not named as a defendant was negligent.

B. Analysis

Government Code section 815.2, subdivision (a) provides that "[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would . . . have given rise to a cause of action against that employee . . . ."

Plaintiffs assert that the court erred in its instruction on negligence by omitting language that the District was responsible for the negligence of District employees not named as defendants because "the trial court's ruling gave the Respondents the green light to blame the nondefendant teachers . . . for reporting up the [District] hierarchical chain . . . rather than having made the suspected child abuse reports to law enforcement . . . the proverbial empty chair defense . . . ." However, as detailed, ante, respondents did not argue in closing argument that nondefendant employees were negligent. Indeed, appellants make no citation to the record in support of this assertion. Accordingly, the court did not err in refusing to instruct the jury that if nondefendant employees of the District were negligent, the District was also negligent.

III. GRANT OF NONSUIT ON BATTERY CLAIM

Plaintiffs assert that the court erred in granting a nonsuit on behalf of District employees Caston, Leon, Boyle and Zelasko because they were joint tortfeasors that aided and abetted Priest in his battery of Austin and Jessica. We reject this contention.

A. Background

After plaintiffs completed their case-in-chief, respondents brought a motion for nonsuit, seeking to dismiss the battery claim as against all defendants, with the exception of Priest and the District. They argued that there was no evidence that Caston, Leon, Boyle or Zelasko committed a battery upon Austin or Jessica. The court granted the motion.

B. Standard of Review

The grant of a motion for nonsuit may not be upheld on appeal unless "'"'"interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law."'"'" (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266.)

C. Analysis

Plaintiffs do not claim that any of the employee defendants other than Priest personally committed a battery upon Austin or Jessica. Rather, they claim that these defendants "were joint tortfeasors with liability for battery because they enabled, permitted, [and] assisted [Priest] in battering the children." This contention is unavailing as there is no substantial evidence the employee defendants aided and abetted Priest's actions.

"California has adopted the common law rule for subjecting a defendant to liability for aiding and abetting a tort. '"Liability may . . . be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person." [Citation.]' [Citation.]" (Casey v. U.S. Bank National Ass'n  (2005) 127 Cal.App.4th 1138, 1144; see also River Colony Estates General Partnership v. Bayview Financial Trading (S.D.Cal. 2003) 287 F.Supp.2d 1213, 1225 ["A party can be liable for aiding and abetting an intentional tort if . . . an individual is aware that the other's conduct constitutes a breach of duty and provides substantial assistance or encouragement to the other to so act"].)

"Mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting. [Citation.] 'As a general rule, one owes no duty to control the conduct of another . . . .' [Citations.] More specifically, a supervisor is not liable to third parties for the acts of his or her subordinates." (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326.)

Here, the evidence of the individual employees' actions amounts at most to a showing that they had knowledge of Priest's allegedly tortious conduct and failed to take action to prevent it. Plaintiffs merely point to evidence that these defendants were informed of the alleged abuse of Austin and Jessica and did not remove him from his position or otherwise protect them from abuse. There is no evidence that these employees aided and abetted Priest by giving "substantial assistance or encouragement" in his alleged acts of battery. There was no evidence that they intentionally participated in his actions with the knowledge of what he intended. The court did not err in granting a nonsuit on the battery claims alleged against Caston, Leon, Boyle, and Zelasko.

IV. GRANT OF NONSUIT ON RALPH ACT CLAIM

Plaintiffs assert that the court erred in granting a nonsuit on their Ralph Act (Civ. Code,  51.7) claim because there is substantial evidence that they were exposed to violence or intimidation because of their age or disability. We reject this contention.

A. Background

Defendants brought a motion for nonsuit against plaintiffs' Ralph Act claim, arguing that there was no evidence of intentional discrimination against Austin and Jessica or that the motivating reason for the alleged battery was their disability or age. Plaintiffs argued in opposition that the evidence inferred that Priest only committed the alleged battery because the victims were nonverbal autistic children that could not complain.

For purposes of ruling on the motion, the court assumed that plaintiffs had proven that Priest "grabbed, yanked, compressed, stepped on" and "slammed down" Austin and Jessica, "using pain to get compliance." However, the court granted the motion, finding that that there was insufficient evidence to support a finding that "the motivating reasons for the acts was discriminatory in nature because of the minor[s'] disability or age."

B. Analysis

The Ralph Act, codified in Civil Code section 51.7, provides:

"All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of [Civil Code s]ection 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive."

Civil Code section 51, subdivision (b) provides: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Italics added.)

CACI No. 3023 sets forth the elements of a Ralph Act claim:

"1. That [the defendant] threatened or committed violent acts against [the plaintiff or his or her property]; [] 2. That a motivating reason for [the defendant's] conduct was [[his/her] perception of[the plaintiff's age or disability];[] 3. That [the plaintiff] was harmed; and [] 4. That [the defendant's] conduct was a substantial factor in causing [the plaintiff] harm." (Italics added.)

In support of their contention that the court erred in granting a nonsuit on this claim plaintiffs point to evidence that they argue, taken in the light most favorable to their position, showed (1) the conduct by Priest was to intimidate and coerce the children, (2) the conduct was directed at children satisfying the age requirement, and (3) it was directed at disabled individuals. However, plaintiffs point to no evidence creating even an inference that Priest's motivation in allegedly abusing Austin and Jessica was the fact that they were disabled children. In other words, there was no evidence that he took the alleged actions because he was biased against or had an animus against disabled children. The court therefore did not err in granting nonsuit on the Ralph Act claim.

V. GRANT OF NONSUIT ON BANE ACT CLAIM

Plaintiffs assert that the court erred in granting nonsuit on their Bane Act (Civ. Code,   52.1) claim as substantial evidence showed that their exercise and enjoyment of their constitutional right to a public education was interfered with by threats, intimidation or coercion. This contention is unavailing.

A. Background

Defendants brought a motion for nonsuit on plaintiffs' Bane Act claim arguing that there was no evidence presented at trial that their exercise of their right to a public education was interfered with by threats, intimidation or coercion. In opposition to this motion, plaintiffs argued that Priest's acts constituted intimidation or coercion, that he need not have had a discriminatory motivation, and that he interfered with plaintiffs' exercise and enjoyment of going to school.

The court granted the motion, finding that at most the evidence showed that Priest was "wrongfully using pain to gain compliance or, perhaps, out of anger or frustration," and there was no substantial evidence to support a finding that alleged acts of defendants "were intended to interfere with the [plaintiff's] rights or that [plaintiffs] were coerced into not exercising their civil rights."

B. Analysis

Civil Code section 52.1 provides in part:

"(a) If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured. . . . [] (b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages . . . ." (Italics added.)

The elements of a cause of action under Civil Code section 52.1 are stated in CACI No. 3025:

"1. That [the defendant] interfered with [or attempted to interfere with] [the plaintiff's] [constitutional or statutory right] by threatening or committing violent acts; [] 2. [That [the plaintiff] reasonably believed that if [he/she] exercised [his/her] [constitutional] right [the defendant] would commit violence against [him/her] or [his/her] property;] [] [That [the defendant] injured [the plaintiff] or [his/her] property to prevent [him/her] from exercising [his/her] [constitutional] right or retaliate against [the plaintiff] for having exercised [his/her] [constitutional] right;] [] 3. That [the plaintiff] was harmed; and [] 4. That [the defendant's] conduct was a substantial factor in causing [the plaintiff's] harm."

The constitutional right allegedly interfered with here is the right to a free public education, embodied in California Constitution, article IX, section 5, which provides: "The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established."

"The Legislature enacted [Civil Code] section 52.1 to stem a tide of hate crimes." (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338 (Jones).) Civil Code section 52.1 requires "an attempted or completed act of interference with a legal right, accompanied by a form of coercion." (Jones, supra, 17 Cal.4th at p. 334.) To obtain relief under Civil Code section 52.1, a plaintiff need not allege the defendant acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion. (Venegas v. County of Los Angeles(2004) 32 Cal.4th 820, 841-843.)

The word "interferes" as used in the Bane Act means "violates." (See Jones, supra, 17 Cal.4th at p. 338 [California Supreme Court equates "interfere" with "violate"]; City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077 [same].) The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., "threats, intimidation or coercion"), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law. (Jones,supra, 17 Cal.4th at p. 334.)

Here, there is no evidence presented that the actions of Priest caused (1) Austin and Jessica not to attend school or (2) that he attempted to achieve this result. While there was sufficient evidence to send the issue to the jury as to whether he committed a battery on plaintiffs, there is no evidence of acts that could be construed as threats, violence or intimidation that actually caused a loss of their right to an education or that attempted to do so. The court did not err in granting a nonsuit on the Banes Act claim.

VI. EXCLUSION OF EVIDENCE OF ALLEGED ABUSE OF OTHER STUDENTS

Plaintiffs assert that the court erred by excluding, in limine, evidence of Priest's alleged abuse of other children in his classroom. We reject this contention.

A. Background

Defendants moved in limine for an order excluding evidence of alleged misconduct of Priest on other occasions involving other students. Counsel for plaintiffs argued that this evidence showed a pattern and practice by Priest and was relevant to establish her Bane Act claim. Specifically, she argued that Austin and Jessica's witnessing of abuse of other students could demonstrate the intimidation or coercion necessary to prove that claim.

The trial court analyzed the motion under Evidence Code section 352, weighing the relevance of the proffered evidence against its potential for prejudice. The court did not entirely exclude the evidence of other acts, but instead ruled that alleged misconduct on prior occasions would be admissible if highly probative so that it would overcome any prejudice; evidence showing the intent or motive of Priest, and would be "limited to acts that took place in the presence of Austin and Jessica and were made known to the other defendants." The court excluded one item of evidence, that a nonparty student was forced by Priest to keep regurgitated vomit in his mouth, on the basis that its prejudice outweighed its relevance.

During trial, the court was presented with evidence plaintiffs sought to introduce that an instructional aide, Ms. Munoz, saw Priest "force-feeding" another student. The court again explained that there were two conditions on admission of the evidence: "One, that it be in the presence of the plaintiffs. The other, that it be . . . information . . . given to the defendants. Or that notice of those incidences [sic] were given to the defendants."

Later in the trial, plaintiffs again addressed the court as to evidence of alleged misconduct by Priest directed at other students. The court again reiterated that evidence of misconduct with other children would be permitted for the limited purpose "to show intent or motive of [Priest] and conduct with [the students]" or to "show plan or knowledge of utilizing certain behavioral techniques absent of mistake or accident. And notice to the defendants in their knowledge of the allegations of abuse." The court also permitted evidence of incidents involving nonparty minors for the additional, limited purpose of proving a discriminatory motive under the Ralph Act.

The court also gave a limiting instruction to the jury, stating that the jury could consider evidence of instances with children other than Austin and Jessica "only for the limited purpose of determining [Priest's] motive, intent, plan, or absence of mistake in his conduct with Austin or Jessica. [] You may also consider this evidence to show the school district's knowledge of allegations of abuse by [Priest]."

Later in the trial, the issue arose once again. Restating its in limine ruling, the court explained: "Any former in limine ruling with respect to conduct with nonparty minors was that it is prohibited by the evidence. It is permissible if it is for different purposes other than for propensity. [] I have indicated to you what the purposes may be. Motive is one of the permitted purposes. However, it does continue─these incidences [sic] do need to continue to meet the other requirements. They have to be present, have to have been in the presence of the minors and defendant."

Counsel for plaintiffs argued that because discriminatory motive was now expressly stated by the court to be a legitimate purpose to permit the evidence, it should not matter whether or not the acts occurred in the presence of appellants. The trial court agreed that "[t]hings may have changed."

The court then asked plaintiffs' counsel for an offer of proof, with specificity, of the incidents they sought to introduce. Counsel deferred on making an offer of proof, stating, "[W]e are going to handpick out the ones that were testified to as the witnesses were present. And with respect to that, we will try to get an answer."

Later, Boyle was askedwhether she had been informed that Priest was force feeding a student. The court would not permit the question of that witness at that time, without first having a foundation established that the force feeding had actually occurred. Plaintiffs, however, never attempted to lay such a foundation.

B. Standard of Review

We review a trial court's decision to admit or exclude evidence under the abuse of discretion standard. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) This standard of review applies where, as here, there is a contention that evidence was erroneously excluded under Evidence Code section 352 because it caused undue consumption of time, undue prejudice, confusion of the issues, or misleading of the jury. (Akers v. Miller (1998) 68 Cal.App.4th 1143, 1147.)

C. Analysis

"[E]vidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, 1101, subd. (a).) An exception to this rule lies where, "a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." (Evid. Code,  1101, subd. (b).)

In addition, courts weigh whether to admit evidence under Evidence Code section 1101, subdivision (b) by looking to Evidence Code section 352, which provides in part: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "'Prejudic[ial]' in Evidence Code section 352 does not mean 'damaging' to a party's case, it means evoking an emotional response that has very little to do with the issue on which the evidence is offered. [Citation.] Evidence which has probative value must be excluded under [Evidence Code] section 352 only if it is 'undu[ly]' prejudicial despite its legitimate probative value." (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 597.)

Here, plaintiffs' contention that the court erred in excluding evidence of other alleged acts of misconduct fails because the court, contrary to plaintiffs' claim, did allow evidence of other instances of misconduct. Although permitted to introduce certain of these instances, plaintiffs failed to make an offer of proof that such episodes occurred. The failure to make a specific offer of proof constitutes waiver of a contention that the court erroneously excluded evidence. (Evid. Code, 354; In re Mark C. (1992) 7 Cal.App.4th 433, 444.)

Moreover, as to Priest's alleged act of force feeding another student, while the court initially indicated that it was excluding this incident as overly prejudicial, it later ruled that the evidence could be admitted if a proper foundation were laid. Plaintiffs never laid such a foundation. Thus, the court did not erroneously exclude evidence of other instances of misconduct.

VII. COURT'S REFUSAL TO ALLOW PLAINTIFFS TO REOPEN THEIR CASE

Plaintiffs assert that the court erred in denying their motion to reopen their case-in-chief before granting defendants' motion for nonsuit. We reject this contention.

A. Background

After defendants moved for nonsuit, plaintiffs filed a written response to the motion, which included a motion to reopen their case. However, plaintiffs' written opposition only cited evidence that had previously been presented, not further evidence they intended to submit if the case was reopened.

B. Standard of Review

The denial of a motion to reopen a case for further evidence "rests upon the sound discretion of the trial court." (Sanchez v. Bay General Hospital (1981) 116 Cal.App.3d 776, 793.) "That discretion should not be overturned on appeal absent a clear showing of abuse." (Ibid.)

C. Analysis

In response to a motion for nonsuit, a plaintiff has the right, upon request, to reopen its case to remedy defects raised by the nonsuit motion. (Eatwell v. Beck (1953) 41 Cal.2d 128, 131-132; S. C. Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th 529, 538.) However, the right to present further evidence is waived unless the plaintiff also makes an offer of proof, describing the evidence and explaining how it would cure the deficiencies. (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1337.)

If an offer of proof is made, the denial of the motion to reopen "will not be overturned when the additional evidence sought to be produced by the plaintiff is either irrelevant to the issues involved in the action (no error) or would not be sufficient to render defendants liable as a matter of law (no prejudice)." (S. C. Anderson, Inc. v. Bank of America, supra, 24 Cal.App.4th at p. 538.)

Here, because plaintiffs did not make an offer of proof in moving to reopen their case by proffering additional evidence they would present that would cure any deficiencies in their evidence submitted in their case-in-chief, the court properly denied their motion to reopen their case-in-chief before granting nonsuit.

Plaintiffs assert on appeal that they could have cured the deficiencies in their evidence if the court had not improperly excluded evidence they sought to introduce of Priest's alleged abuse of other students. However, because we have already concluded that the court did not improperly exclude such evidence in this case, this contention is unavailing.

VIII. AWARD OF ATTORNEY FEES

Plaintiffs assert that the court erred in awarding the District attorney fees under Code of Civil Procedure section 1038 as to the Bane Act and Ralph Act claims because these claims were brought in good faith and with reasonable cause. This contention is unavailing.

A. Background

In granting the District's motion for attorney fees, the court first found that on the Ralph Act claim plaintiffs "presented no evidence whatsoever, to support a finding that any aggression by [Priest] towards the two minor plaintiffs was because of their disability." As to the Bane Act cause of action, the court found that plaintiffs did not present any evidence "to support a finding that any aggression or violence by [Priest] was intended as a means of interfering with the two minor plaintiffs' exercise [of] a constitutional, or other right." Based upon this lack of evidence, the court found that plaintiffs' attorney was aware that an element of these claims was missing, and therefore these claims lacked reasonable cause.

B. Standard of Review

Code of Civil Procedure section 1038 "provides public entities with a protective remedy for defending against unmeritorious litigation." (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 931, quoting Curtis v. County of Los Angeles (1985) 172 Cal.App.3d 1243, 1247.) The statute permits public entities to recover costs, including attorney fees, from a plaintiff who files a frivolous civil action under the California Tort Claims Act after a defendant prevails on a motion for summary judgment, directed verdict, or nonsuit. (Code of Civ. Proc., 1038; Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 853.)

In order to recover fees under Code of Civil Procedure section 1038, the court to must "'determine whether or not the plaintiff, . . . brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint.'" (Carroll v. State of California (1990) 217 Cal.App.3d 134, 140.) "Reasonable cause" is an objective standard which asks whether any reasonable attorney would have thought the claim tenable. (Ibid.) "Thus, before denying a [Code of Civil Procedure] section 1038 motion, a court must find the plaintiff brought or maintained an action in the good faith belief in the action's justifiability and with objective reasonable cause." (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center, supra, 19 Cal.4th at p. 862.)

The standard of review of an award of attorney fees under Code of Civil Procedure section 1038 is both de novo and substantial evidence. The "reasonable cause" prong is reviewed de novo, and the "good faith" prong is reviewed for substantial evidence. (Hall v. Regents of University of California (1996) 43 Cal.App.4th 1580, 1586.)

In asserting that the court erred in awarding attorney fees under Code of Civil Procedure section 1038, plaintiffs merely point to the reports of alleged abuse by Priest. However, as the court found in granting attorney fees, there is no evidence creating even an inference that Priest's alleged abuse was (1) motivated by their disabilities; and/or (2) was intended to interfere with the exercise of their constitutional or statutory rights. Indeed, plaintiffs make no attempt to proffer any theory upon which they could establish a Ralph Act or Bane Act claim. Accordingly, we cannot say that the court erred in awarding the District attorney fees under Code of Civil Procedure section 1038.

IX. AWARD OF EXPERT FEES

Plaintiffs assert that the court erred in awarding defendants their expert witness costs under Code of Civil Procedure section 998 because (1) they submitted a lump sum settlement offer on behalf of all defendants; and (2) because defendants were united in interest they were not prevailing parties for the purposes of recovering expert witness fees. We reject this contention.

A. Background

Defendants as a group served Austin with a Code of Civil Procedure section 998 offer to compromise in the amount of $75,000. They served an identical offer on Jessica. Following trial the court awarded defendants their expert witness costs under Code of Civil Procedure section 998 because plaintiffs did not obtain relief greater than the Code of Civil Procedure section 998 settlement offers made by defendants.

B. Analysis

Code of Civil Procedure section 998 provides in part:

"(a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. [] (b) Not less than 10 days prior to commencement of trial or arbitration . . . of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party. [] . . . [] (2) If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration. [] . . . [] (c)(1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. . . . (Italics added.)

Under that section, if two or more defendants are sued on a theory of joint and several liability, each is potentially liable for the full amount of any judgment, and a joint offer by the defendants under Code of Civil Procedure section 998 is effective because it is deemed an offer by each defendant that judgment may be taken against each of them. (Brown v. Nolan (1979) 98 Cal.App.3d 445, 451; see also Winston Square Homeowner's Assn. v. Centex West. Inc. (1989) 213 Cal.App.3d 282, 294; Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 114.) However, it has been stated in dicta that "in post-Proposition 51 cases, where each defendant is only jointly liable for the plaintiff's economic damages but severally liable for noneconomic damages in proportion to that defendant's degree of wrongdoing [citation], the validity of such an offer is questionable." (Taing v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 584.)

No post-Proposition 51 case has resolved the question directly as to whether an offer from multiple defendants that are not jointly and severally liable, and that is not apportioned among the individual defendants, is valid. However, the question has been addressed with regard to a plaintiff's offer to multiple defendants that are not jointly and severally liable. In a case subject to Proposition 51, where defendants have potentially varying noneconomic damage liability, a valid Code of Civil Procedure section 998 offer must specify the amount plaintiff seeks from each defendant. (Burch v. Children's Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 547.) This rule was summarized by one commentator as follows: "In multidefendant cases, the rule barring comparative indemnity claims against a 'good faith' settling defendant [citation] and the Prop[osition] 51 elimination of joint and several liability for noneconomic damages [citations] play a significant role in the determination of each defendant's ultimate liability. Consequently, a plaintiff's [Code of Civil Procedure section] 998 offer to joint defendants having potentially varying liability must specify the amount plaintiff seeks from each defendant. Otherwise, there is no way to determine whether a subsequent judgment against a particular nonsettling defendant is 'more favorable' than the offer." (Flahavan et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2007) 4:163.2g, p. 4-49 (rev. #1, 2006), first italics added.) As stated by a different practice guide, "'Thus, a lump-sum settlement offer made to several defendants whose liability may be apportioned (i.e., not jointly liable) must state [plaintiff's] position as to each defendant's share or percentage of the settlement demand." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) 12:610.2, p. 12(II)-28 (rev. #1, 2006.)

Here, it is undisputed that plaintiffs were seeking only noneconomic damages, and, as such, ordinarily the defendants were only severally liable for the plaintiffs' damages. However, in this case, because the District is the employer of the individual defendants, if plaintiffs prevailed against any of them, the District would have been liable for the judgment. Thus, plaintiffs were not prejudiced or misled by an offer made collectively by all defendants. Moreover, by joining in a group offer, each defendant assumed the risk that if plaintiffs' recovery against any one defendant exceeded the group offer, the plaintiffs would be able to recover their Code of Civil Procedure section 998 costs against all defendants. The court did not err in awarding defendants their expert witness costs under Code of Civil Procedure section 998.

DISPOSITION

The judgment and orders are affirmed.

CERTIFIED FOR PUBLICATION

NARES, Acting P. J.

WE CONCUR:

HALLER, J.

IRION, J.

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