SMITH v. PNEUMO ABEX LLC

No. B217063.

MARY LOU SMITH, Plaintiff and Appellant, v. PNEUMO ABEX LLC, Defendant and Appellant.

Court of Appeals of California, Second District, Division Three.

Filed September 17, 2010.


Attorney(s) appearing for the Case

Kazan, McClain, Lyons, Greenwood & Harley, James L. Oberman and Michael T. Stewart for Plaintiff and Appellant.

Brydon Hugo & Parker, John R. Brydon, Josette D. Johnson and James C. Parker for Defendant and Appellant.

Steven G. Ingram for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

INTRODUCTION

This is a personal injury case arising out of Robert Smith's alleged exposure to asbestos from products manufactured and distributed by numerous defendants, including defendant Pneumo Abex LLC (Abex). Robert and his wife Mary Lou Smith sued Abex and other defendants for strict liability and negligence.1 The jury returned a verdict in favor of Robert and Mary Lou and against Abex. Shortly thereafter, Robert died from mesothelioma. Mary Lou was then named his successor in interest.

After entering an initial judgment and adjudicating post-trial motions, the trial court entered a final judgment in the amount of $365,029.35, plus $85,805.11 in costs, for a total of $450,834.46 in favor of Mary Lou and against Abex. Both Mary Lou and Abex appeal that judgment.

For reasons we shall explain, we shall conclude that the trial court erroneously calculated economic damages. We shall reverse the judgment with directions that the trial court enter a new judgment in Mary Lou's favor and against Abex in the amount of $440,107, plus costs in the amount of $85,805.11, for a total of $525,912.11. We express no opinion on Abex's claim that it is entitled to offsets for settlements that plaintiff reached after the entry of the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Smith Family

At the time of trial, Robert and Mary Lou had been married for 45 years. The couple had two adult children and five grandchildren, all of whom lived close to their home in Long Beach.

2. Robert's Alleged Exposure to Asbestos That Came From Abex's Products

From 1964 to 1983, Robert was exposed to asbestos while he was working at various jobs. Robert's claims against Abex arose from his employment with Southern California Edison (Edison) in 1970 and 1971. In approximately 1969, Robert began working as a serviceman for Edison's vehicles. Robert left Edison in 1971 to become a truck driver for another company.

As a serviceman for Edison, Robert performed a number of duties, including the replacement of brakes. The number of brake jobs he performed varied. Sometimes he performed one job per day, on other days he performed three jobs, and on other days he did not perform any.

Robert was exposed to dust and other fine particles that came off of new and used brakes. When Robert removed brake drums, he would blow off the dust and debris with an air house. He also ground brake shoes so that they would fit. In addition, Robert cleaned up the dust and debris in the shop that included fine particles from brakes he and other workers replaced. Robert's work often caused him to get brake dust on his hair, in his nose, and on his clothes.

In 1970 and 1971, Edison purchased its brakes from two stores, one of which was Collier Motor Sales (Collier) in Long Beach, a Genuine Parts (NAPA) dealership. Collier sold Rayloc brand brakes. Beginning in the summer of 1970, a company called Caliblock began making Rayloc brakes that used brake shoes manufactured by Abex. These brake shoes contained asbestos. Caliblock began shipping Rayloc brakes with Abex brake shoes to its customers, including Collier, beginning in the fall of 1970.

In 2006, Robert went to his primary physician complaining of a shortness of breath. He was later diagnosed with mesothelioma. Mary Lou contends that Robert's exposure to fine asbestos particles in brake dust that came from Abex brake shoes was a substantial factor in causing his mesothelioma.

3. Robert and Mary Lou Sue Numerous Companies

Robert and Mary Lou commenced this action by filing a complaint in the superior court in September 2008. In their operative pleading—the first amended complaint—they asserted numerous causes of action, including causes of action for strict liability and negligence. Robert prayed for damages arising from his mesothelioma and Mary Lou prayed for damages arising from loss of consortium. The first amended complaint named 24 defendants, including Abex.

4. The Pre-Trial Stipulation Regarding Past and Future Medical Expenses

Prior to trial, Robert and Mary Lou settled with and dismissed many defendants from the action. By the time plaintiffs made their opening statement, there were three defendants left—Abex, Sears Roebuck & Co. (Sears) and Garlock, Inc. (Garlock). Sears and Garlock are not part of this appeal.

On March 5, 2009, during the trial, the parties orally stipulated that Robert's past and future medical expenses were $900,000. However, this stipulation was made "without prejudice to post-trial motions with regard to setoffs or amounts actually paid or otherwise."

5. The Special Verdict

On March 25, 2009, the jury returned a special verdict. The jury found that Abex was liable under three theories: (1) Abex's product was defectively designed because it failed to perform as safely as an ordinary consumer of the product would expect; (2) Abex failed to adequately warn or instruct of the potential risks of its product; and (3) Abex was negligent. The jury also found that the defective design of Abex's product, Abex's failure to warn of the risks of its product, and Abex's negligence were each a substantial factor in causing Robert's mesothelioma.

Pursuant to the parties' stipulation and the court's instructions, the jury awarded Robert $900,000 in past and future medical expenses. In addition, the jury awarded Robert $480,000 for loss of earnings. Thus Robert's total economic damages were $1,380,000. The jury also awarded Robert $2,500,000 in non-economic damages for his pain and suffering. Mary Lou was awarded $175,000 for loss of consortium. Finally, the jury assigned a percentage of responsibility to 20 different entities for Robert's mesothelioma. The jury found that Abex was 5 percent at fault.

6. The Initial Judgment

On April 6, 2009, the court entered an initial, interim judgment. The judgment awarded Robert $1,380,000 in economic damages and $125,000 in non-economic damages (5 percent of $2.5 million). It also awarded Mary Lou $8,750 (5 percent of $175,000) for loss-of-consortium damages. The judgment further stated that "[t]he economic-damages award shall be reduced by an amount to be later determined by this Court to reflect plaintiffs' pre-verdict settlements with other defendants."

7. Plaintiffs' Motion to Apply Settlement Credits

On April 6, 2009, the same date the initial judgment was entered, Robert and Mary Lou filed a motion to apply settlement credits. In their moving papers, plaintiffs stated that the total amount of pre-verdict settlements was $5,736,000, and that the plaintiffs had agreed with the settling defendants to allocate their settlements in following manner: one-third for Robert's personal injury claims (both economic and non-economic damages); one-sixth for Mary Lou's loss of consortium claim; and one-half for the anticipated wrongful death suit of Robert's heirs. According to plaintiffs' counsel, this allocation was used by their office on many occasions for personal injury cases arising from asbestos exposure. Plaintiffs argued that the court should adopt this allocation and award Abex a credit against Robert's economic damages in the amount of $678,760.2

On April 24, 2009, Abex filed an opposition to plaintiffs' motion to apply settlement credits. Abex argued that the court should allocate the pre-verdict settlements in the following manner: $175,000 to loss of consortium based on the jury's verdict; 27 percent to the anticipated wrongful death suit of Robert's heirs based on the percentages allocated to wrongful death suits in certain published cases; and the remainder to Robert's personal injury claims. Under this allocation, the amount of the credit would exceed Robert's economic damages of $1,380,000.

In the alternative, Abex argued that Robert's economic damages should be reduced by at least $400,000 because the $900,000 awarded by the jury for Robert's past and future medical expenses was too high. Abex argued: "If the Court rules that any economic damages are recoverable as against Abex, then it should also rule that only those medical expenses actually paid by plaintiffs of [their] insurers are recoverable, and that the net amount of the judgment will have to be re-allocated once that figure is known."

8. Abex's Motion for Judgment Notwithstanding Verdict

On April 21, 2009, Abex filed a motion for judgment notwithstanding verdict (JNOV). The motion was made on the grounds that there was not substantial evidence showing (1) that Robert was exposed to asbestos from Abex's products and (2) that such exposure was a substantial factor in causing Robert's mesothelioma.

9. April 30, 2009, Hearing and Order

On April 30, 2009, the trial court held a hearing on plaintiffs' motion to apply settlement credits. At the hearing, in response to argument by plaintiffs' counsel, the court stated that allocations of the settlements by the plaintiffs and the settling defendants were "reasonable" at the time, but the court had "after-acquired knowledge" of what the jury found.3 The court then allocated the pre-verdict settlements as follows: 45 percent to Robert's personal injury claim; 10 percent to Mary Lou's loss of consortium claim; and 45 percent to the anticipated wrongful death suit of Robert's heirs.

After the court announced this allocation, counsel for Abex argued that Robert's economic damages should be further reduced because he did not actually incur $900,000 in medical expenses. The court, however, stated that the parties would have to come back on a later date and argue that issue. The court reserved a date "for a defense motion to apply settlement credits."

10. Abex's Motion to "Correct Judgment"

On May 21, 2009, Abex filed a motion "to correct judgment to reflect medical expenses actually incurred and paid." Abex argued that it "is entitled to a reduction in the gross economic damages awarded by the jury because the amount of medical bills actually incurred and/or paid by plaintiffs or plaintiffs' insurer is substantially less than the amount billed by their health care providers."

11. June 2, 2009 Hearing

On June 2, 2009, the trial court denied Abex's motion for JNOV. The court also ordered that Mary Lou be substituted as successor in interest to Robert.

12. The Final Judgment

On June 12, 2009, the trial court held a hearing on Abex's motion to correct judgment. At that hearing, Abex's counsel represented to the court that Robert had been billed $810,027.38 for medical treatment related to his mesothelioma and that the total amount of medical bills actually paid, either by the Smiths or their insurance company, was $452,462.33. The court stated that it "accept[ed]" defense counsel's figure of $452,462.33.

After the hearing, the court entered a final judgment on special verdict nunc pro tunc to March 26, 2009.4 This judgment awarded plaintiff Mary Lou, individually and as successor to Robert, $231,279.35 in economic damages sustained by Robert, $125,000 in noneconomic damages sustained by Robert, and $8,750 in loss-of-consortium damages, plus $85,805.11 in costs, for a total of $450,834.46. The economic damages were calculated by making two reductions to the $1,380,000 jury award. First, the economic damages were reduced to $932,462.33 "to reflect this Court's reduction of the amount awarded for Past and Future Medical Expenses."5 Second, the economic damages were further reduced by applying a credit in the amount of $701,182.98 for the pre-verdict settlements.6

CONTENTIONS

Mary Lou argues that the trial court erroneously reduced the economic damages awarded by the jury to Robert in two ways. First, she contends that the trial court erroneously only awarded Robert the medical expenses that the Smiths or their insurance company actually paid for instead of the medical expenses billed by Robert's health care providers and the future medical expenses awarded by the jury. She contends this was error because (a) Abex's motion to correct judgment was untimely, (b) the trial court improperly speculated as to the amount of past and future medical expenses, and (c) the court's reduction violated the collateral source rule.

Mary Lou also argues that the trial court erroneously allocated the pre-verdict settlements, which resulted in a miscalculation of the credit received by Abex towards economic damages. She contends that the trial court abused its discretion by rejecting the allocations stated in the settlement agreements, namely one-third for Robert's personal injury claims, one-sixth for Mary Lou's loss of consortium, and one-half for the wrongful death claims. According to Mary Lou, had the trial court correctly allocated the settlements, Abex would have only received a credit of $678,760 towards economic damages instead of the $701,182.98 credit given by the trial court.

Abex makes four major arguments. First, Abex contends that the trial court should have entered a judgment in its favor notwithstanding the verdict because there was no substantial evidence to support the verdict. Second, Abex argues that the trial court erroneously denied proposed jury instructions regarding causation. Third, Abex challenges the trial court's allocation of pre-verdict settlements. According to Abex, if the settlements had been properly allocated, Mary Lou would not recover any economic damages. Finally, Abex contends that the trial court erroneously granted Mary Lou recovery of certain costs.

DISCUSSION

1. The Trial Court Correctly Denied Abex's Motion for JNOV Because There Was Substantial Evidence to Support the Verdict

a. Standard of Review

"The trial court has limited discretion to grant a motion for judgment notwithstanding the verdict. It may grant it only when there is no substantial evidence to support the verdict." (Campbell v. Cal-Gard Surety Services, Inc. (1998) 62 Cal.App.4th 563, 570.) "On appeal we resolve conflicts in the evidence and draw all reasonable inferences in favor of the verdict." (Ibid.) We do not reweigh the evidence. (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 849, fn. 11.) If there is substantial evidence to support the verdict, it is of no consequence that the trier of fact believing other contradicting evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.)

b. Abex Forfeited His Substantial Evidence Argument

We must presume that the record contains evidence to support every finding of fact of the trial court unless the appellant proves otherwise. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737 (Schmidlin).) "A party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable." (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218 (Doe).) Further, a party who challenges the sufficiency of the evidence must present the facts in a light most favorable to the prevailing party. (Schmidlin, at p. 737-738.)

Abex contends that there was no substantial evidence that (1) Robert was exposed to asbestos-containing dust from Abex brakes or that (2) any such exposure rose to the level of being a substantial factor in causing Robert's mesothelioma. However, in its brief Abex did not set forth, discuss, and analyze all of the evidence on point in Mary Lou's favor. Instead, Abex mainly discussed evidence which it perceives favors its position, including testimony from its own expert witnesses, while ignoring evidence that supports Mary Lou's position. Abex also failed to discuss the evidence in a light most favorable to the prevailing party. Because Abex failed in its obligations concerning the discussion and analysis of the evidence relied upon by the jury, we deem the claim of error that there was no substantial evidence to support the judgment forfeited. (Doe, supra, 177 Cal.App.4th at p. 218; Schmidlin, supra, 157 Cal.App.4th at p. 737.)

c. There Was Substantial Evidence That Robert Was Exposed to Abex's Asbestos-Containing Products

Even if we assume the issue was not forfeited, we would reject Abex's argument on the merits. Contrary to Abex's assertion, there was substantial evidence that Robert was exposed to asbestos from Abex's brake shoes. This evidence consisted of, inter alia, testimony that Robert's employer, Edison, purchased Rayloc brakes, that these brakes had asbestos-containing brake shoes manufactured by Abex in 1970 and 1971, and that Robert was exposed to brake dust and debris while working at Edison in that time period.

Abex's reliance on the testimony of former Edison employee Michael Groth is misplaced. Groth testified that he could not say "one way or the other whether or not Edison used Rayloc brakes" at the location where Robert worked. However, the testimony of Richard Rolland, a salesman at Caliblock, and Gary Bremer, a regional manager of Genuine Parts (NAPA), established that Edison purchased Rayloc brakes from a Genuine Parts dealership in 1970 and 1971. Groth's testimony does not contradict the testimony of Rolland and Bremer. Even if it did, for purposes of appellate review, we would ignore Groth's testimony and rely on the testimony of Rolland and Bremer, viewed in a light most favorable to the judgment. Under this correct standard, we reject Abex's argument that there was no substantial evidence that Robert was exposed to asbestos from Abex brake shoes.

d. There Was Substantial Evidence That Exposure to Abex's Products Was a Substantial Factor in Increasing Robert's Risk of Developing Mesothelioma

We also reject Abex's argument that there was no substantial evidence that exposure to asbestos from Abex's products was a substantial factor in causing Robert's mesothelioma. Although there is consensus in the scientific community that exposure to asbestos can cause mesothelioma and other respiratory disease, it is often difficult to trace the etiology of the disease in a particular individual. "At the most fundamental level, there is scientific uncertainty regarding the biological mechanisms by which inhalation of certain microscopic fibers of asbestos leads to lung cancer and mesothelioma." (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 974 (Rutherford ).)

Plaintiffs therefore are not required "to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber." (Rutherford, supra, 16 Cal.4th at p. 976.) Instead, plaintiffs "may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant's particular product were the ones, or among the ones, that actually produced the malignant growth." (Id. at pp. 976-977, fn. omitted.)

In Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990 (Jones), the court applied Rutherford to facts similar to this case. There, the defendant's industrial hygienist testified that the fibers released from its products were only 0.01 to 0.1 fibers per cubic centimeter of air, which was no greater than the ambient level of asbestos in the atmosphere. The defendant argued that this minimal level of exposure could not be a substantial factor in contributing to the risk of the plaintiff developing lung cancer. (Id. at pp. 999-1000.) However, the court held: "Rutherford does not require that each exposure be sufficient to independently cause lung cancer. To the contrary, the exposure need only be `a substantial factor in contributing to the aggregate dose of asbestos the plaintiff . . . inhaled.' (Rutherford, supra, 16 Cal.4th at p. 976.) The mere fact that comparable levels could be found in ambient air does not render the exposure `negligible or theoretical.' (Id. at p. 978.) As Dr. [Samuel] Hammar recognized, if a person were exposed to six different products, each with a release level similar to the asbestos levels recorded in ambient air, the combined concentration in the total dose would contribute substantially to the increased risk of cancer."7 (Id. at p. 1000.)

Here, Abex argues that "[t]here was no evidence present that Mr. Smith was exposed to above background amounts of respirable asbestos fibers from beveling new brake shoes that actually contained Pneumo Abex friction material." In other words, Abex argues that exposure to asbestos from its products alone was insufficient to increase the risk of Robert developing mesothelioma. However, as the Jones court explained, this is an incorrect analysis. The correct question is whether Robert's exposure to asbestos from Abex's products was a substantial factor in contributing to the aggregate dose of asbestos inhaled by Robert, and hence the risk of Robert developing mesothelioma.

By applying the correct analysis, we reject Abex's causation argument. In addition to being exposed to asbestos from Abex's brakes shoes in 1970 and 1971, Robert was exposed to asbestos from many other sources. The testimony of Robert's co-workers, Joseph J. Gutierrez and Stephen F. Petro, and Robert's testimony, established that Robert was exposed to substantial quantities of asbestos as a truck driver. Further, Robert's testimony established that he was exposed to asbestos as a groundman, an apprentice lineman and a garage attendant at Edison, and that he was exposed to asbestos from brake shoes manufactured by companies other than Abex as a serviceman at Edison.

Dr. Allan Smith testified that the cumulative dose of asbestos Robert was exposed to throughout his working life caused Robert's mesothelioma, and that each part of that dose contributed to the risk of Robert developing the disease. Dr. Samuel Hammar testified that there was no "safe dose" of asbestos, that Robert's exposure to asbestos caused his mesothelioma, and that if Robert performed brake work, he could not exclude that as contributing to Robert's risk of developing mesothelioma. Dr. Barry Horn testified that Robert's "cumulative exposure to asbestos which he had occupationally" caused Robert's mesothelioma and that each of Robert's occupational exposures contributed to his risk of developing the disease.

In sum, there was substantial evidence that Robert's exposure to asbestos from Abex's products was a substantial factor in contributing to the aggregate dose of asbestos that he inhaled, and hence the risk of Robert developing mesothelioma.

2. The Trial Court Did Not Erroneously Deny Abex's Proposed Special Jury Instructions

We review de novo whether proposed jury instructions correctly stated the law. (See Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 24.) If the trial court erroneously denies correct, nonargumentative jury instructions, we must reverse the judgment when "there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)

"It is well settled that the trial court need not give more than one instruction on a given question of law [citation], and there is no abuse of discretion in refusing to give an instruction on a subject adequately covered by other instructions given to the jury. [Citation.]" (Sparks v. Bledsaw (1966) 239 Cal.App.2d 931, 938; accord Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217 (Major) ["`[e]rror cannot be predicated on the trial court's refusal to give a requested instruction if the subject matter is substantially covered by the instructions given'"].) " `[Jury instructions] should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition. [Citations.]'" (Major, supra, 169 CalApp.4th at p. 1217.)

Here, the jury was given the following instruction regarding causation: "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It does not have to be the only cause of the harm. [¶] Robert Frank Smith and Mary Lou Smith may prove that exposure to asbestos from Pneumo Abex LLC's products or Sears, Roebuck and Co.'s negligence was a substantial factor causing Robert Frank Smith's mesothelioma by showing, through expert testimony, that there is a reasonable medical probability that the exposure was a substantial factor contributing to his risk of developing mesothelioma." This instruction was based on California Civil Jury Instructions (CACI) No. 435, which in turn was based on Rutherford.

Abex does not dispute that this was a correct statement of the law regarding the element of causation. Rather, Abex contends that the trial court erroneously refused to give two additional special jury instructions relating to causation. Abex's proposed special jury instruction No. 12 stated the following: "You may consider the following factors in assessing whether an individual defendant's products or actions were a substantial factor in the causation of the plaintiff's disease: [¶] 1. The frequency of the plaintiff's exposure to a defendant's products or actions; [¶] 2. The duration of plaintiff's exposure to a defendant's products or actions; [¶] 3. The proximity of the defendant's asbestos product to the plaintiff; [¶] 4. The type of asbestos product to which the plaintiff was exposed; [¶] 5. The type of injury suffered by the plaintiff; and [¶] 6. The other possible source of the plaintiff's injury."

We agree with Abex that this proposed special jury instruction was a correct statement of the law insomuch as it mirrored a statement made in Rutherford.8 However, Rutherford did not hold that this language was suitable for a jury instruction. Instead, Rutherford expressly held that the jury should be instructed with the language used in CACI No. 435. (Rutherford, supra, 16 Cal.4th at pp. 982-983 ["The jury should be so instructed"].) Abex's proposed jury instruction No. 12 related to a subject matter substantially covered by CACI No. 435 and placed undue emphasis on certain aspects of causation. The trial court therefore correctly refused to give this instruction.

Abex also sought to give the jury its special jury instruction No. 1, which stated in relevant part the following: "What constitutes a substantial factor for causation purposes needs to be something which is more than a slight, trivial, negligible, or theoretical factor in producing a particular result." Abex contends that this instruction is a correct statement of the law under Rutherford. In Rutherford, the court touched on the concept of de minimis damages while discussing the substantial factor test. The court stated: "The term `substantial factor' has not been judicially defined with specificity, and indeed it has been observed that it is `neither possible nor desirable to reduce it to any lower terms.' [Citation.] This court has suggested that a force which plays only an `infinitesimal' or `theoretical' part in bringing about injury, damage, or loss is not a substantial factor. [Citation.] Undue emphasis should not be placed on the term `substantial.'"9 (Rutherford, supra, 16 Cal.4th at p. 969.)

The Rutherford court did not state that it was proper and necessary in an asbestos case for the trial court to instruct the jury regarding "infinitesimal" or "theoretical" damages. Indeed, although there was no de minimis instruction given, the court in Rutherford upheld a judgment that one party was 1.2 percent liable for noneconomic damages under the principles of comparative negligence. (Rutherford, supra, 16 Cal.4th at p. 985.) We hold that the trial court acted within its discretion in denying Abex's proposed special jury instruction No. 1 because the subject matter was adequately covered by CACI No. 435.

3. The Trial Court Erroneously Reduced Economic Damages Pursuant to the Hanif-Nishihama Line of Cases

In Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 (Hanif), the plaintiff brought a personal injury action against the defendant arising from an automobile accident. Over the defendant's objection, the plaintiff introduced evidence that the "reasonable value" of the medical services rendered to the plaintiff was in excess of the amounts Medi-Cal had actually paid the providers. (Id. at p. 639.) The Court of Appeal, however, held that the plaintiff could not recover medical expenses in excess of those paid on his behalf by Medi-Cal. (Id. at p. 640.)

In Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298 (Nishihama), the court extended the holding in Hanif to payments made by private insurance companies. There, the plaintiff claimed that she was entitled to recover $17,168 for care she received from California Pacific Medical Center (CPMC). This amount was based on CPMC's normal rates. (Id. at p. 306.) However, CPMC accepted $3,600 from the plaintiff's insurance company as payment in full for the services provided to the plaintiff pursuant to a contract between CPMC and the insurance company. (Id. at p. 307.) The Court of Appeal held that "the trial court erred in permitting the jury to award plaintiff $17,168 instead of $3,600 for CPMC's services." (Id. at p. 309.)

We shall refer to the holdings of Hanif and Nishihama together as the Hanif-Nishihama rule. Whether the Hanif-Nishihama rule is California law is currently an issue pending in the California Supreme Court.10

Abex urges this court to adopt the Hanif-Nishihama rule; Mary Lou urges us to reject it. We hold that, for reasons we shall explain, even if the Hanif-Nishihama rule is correct, it cannot be applied in this case. Accordingly, we do not reach the issue of whether the Hanif-Nishihama rule is correct.

Pursuant to a stipulation by the parties, the jury awarded Robert $900,000 for past and future medical expenses. The jury did not make a finding as to how much of the $900,000 awarded was for future medical expenses. This is fatal to Abex's attempt to modify the $900,000 award after the verdict because an award of future medical expenses cannot be so modified.

"At common law, a plaintiff who suffers bodily injury at the hands of a tortfeasor has traditionally been compensated for both past and future damages through a lump sum judgment, payable at the conclusion of the trial." (American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 366 (American Bank).) Lump sum awards have been criticized by scholars because they can lead to windfalls for both plaintiffs and defendants. (See ibid.) If the plaintiff's future medical expenses actually turn out to be less than the award, the plaintiff is overcompensated. On the other hand, if the plaintiff's future medical expenses end up being more than the award, the defendant receives a windfall.11

The trial court cannot with hindsight modify a judgment to decrease or increase an award of future medical expenses. Granting the trial court such power would potentially leave the parties subject to litigation years after a judgment is entered. This would violate "`[t]he important public policy that there must be an end to litigation which underlies the doctrine of finality of judgments . . . .'" (Estate of Prindle (2009) 173 Cal.App.4th 119, 133; accord People v. DeLouize (2004) 32 Cal.4th 1223, 1232 ["The concept of finality `rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination'"].)

Here, the trial court reduced the jury's award of $900,000 for past and future medical expenses by $447,537.67. It arrived at this figure by subtracting $452,462.33—the amount of medical expenses Abex claims Robert actually paid—from $900,000. It is unclear how much, if any, of the $452,462.33 in the medical expenses were incurred after the verdict. What is clear is that at least a portion of the $447,537.67 reduction was for future medical expenses that were never incurred. Abex contends that the total medical expenses charged by Robert's health care providers were approximately $810,000. Thus, if we accept that claim on its face, then the trial court reduced Robert's award for future medical expenses by at least $90,000.

The fundamental problem with the trial court's application of the Hanif-Nishihama rule is that it cannot apply the rule without speculating about the portion of the $900,000 award that consisted of future medical expenses. Unless the trial court determines the portion of the $900,000 that was for future medical expenses, it cannot reduce the $900,000 award without risking an impermissible post-verdict reduction of future medical expenses.

In Greer v. Buzgheia (2006) 141 Cal.App.4th 1150 (Greer ), the court faced a similar issue. There, the jury awarded the plaintiff $260,000 for past economic loss, including lost earnings and medical expenses. The defendant sought to reduce that amount by applying the Hanif-Nishihama rule. However, the Court of Appeal stated: "[T]he trial court got it right when it observed that it was, for all practical purposes, impossible to calculate a Hanif/Nishihama reduction, since the jury award failed to distinguish what fraction of the $260,000 economic damage award consisted of medical expenses and what portion was attributable to other items such as wage loss. Because the verdict form combined both components into one figure, the court could not apply a Hanif-type reduction of the verdict without engaging in obvious speculation." (Id. at p. 1158.)

The present case is analogous. Just as a Hanif-type reduction cannot be applied to loss of earnings, such a reduction cannot be applied to future medical expenses. Thus, the trial court cannot calculate a Hanif-Nishihama reduction without speculating about what portion of the $900,000 award was attributable to future medical expenses.

Abex argues that this case is distinguishable from Greer because plaintiffs stipulated to allowing Abex to file a post-verdict motion challenging the $900,000 award pursuant to the Hanif-Nishihama rule. Although plaintiffs did agree that Abex was not prejudiced from filing such a motion, they did not waive any arguments against such a motion.12

Moreover, in this case, the application of the Hanif-Nishihama rule was effectively an affirmative defense because, in light of the parties' stipulation, plaintiffs did not need to prove the amount of past and future medical expenses. Thus Abex had the burden of proof with respect to a Hanif-Nishihama reduction. (Evid. Code, § 500.) Abex did not and cannot meet its burden because the $900,000 award cannot be reduced without speculating about the amount of that award that was allocated to future medical expenses. Accordingly, we hold that the trial court erroneously reduced the judgment by $447,537.67 pursuant to Hanif and Nishihama.13

4. The Trial Court Erroneously Allocated the Pre-Verdict Settlements

Civil Code section 1431.2, subdivision (a), provides: "In any action for personal injury, property damage or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount." "This section, enacted by the voters in 1986 as part of Proposition 51, has been held applicable to strict liability asbestos exposure cases. [Citations.]" (Hackett v. John Crane, Inc. (2002) 98 Cal.App.4th 1233, 1239 (Hackett).

Under Proposition 51, Abex is severally liable for 5 percent of the noneconomic damages sustained by Robert and Mary Lou. Abex is also jointly and severally liable for the full amount of Robert's economic damages. (Hackett, supra, 98 Cal.App.4th at p. 1239.) However, under Code of Civil Procedure section 877, Abex is entitled to a credit for amounts previously recovered from other parties for these damages.14 (Jones, supra, 132 Cal.App.4th at p. 1006.) Both Abex and Mary Lou challenge the trial court's calculation of Abex's credit towards Robert's economic damages for amounts previously recovered by Robert for these damages from his pre-verdict settlements.

The parties agree that the total amount of the pre-verdict settlements was $5,736,000. These settlements released defendants other than Abex from (1) Robert's personal injury claims for economic and noneconomic damages, (2) Mary Lou's loss of consortium claim, which consists of noneconomic damages, and (3) the anticipated wrongful death claims of Robert's heirs. The $5,736,000 total must be allocated into these three categories, so that the amount of the credit Abex can apply towards Robert's economic damages can be calculated.

There is a three-step process to calculate Abex's credit. "First, excluding the wife's loss of consortium damages, determine the ratio of the economic to total damages as awarded by the jury. Second, subtract from the amount of the pretrial settlement the portions of the settlement properly found to be allocable to the wife's loss of consortium claim and the heirs' potential wrongful death claims. Third, multiply the two figures together to determine the amount of the defendant's settlement credit for economic damages." (Hackett, supra, 98 Cal.App.4th at p. 1240, citing Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 864, fn. 18.)

a. Step 1: Calculate the Ratio of Economic Damages to Total Damages

Abex and Mary Lou agree that the first ratio is 0.3556701. Excluding loss-of-consortium damages, this is calculated by dividing $1,380,000 (Robert's economic damages) by $3,880,000 (Robert's total damages). The trial court used a ratio of 0.27165. It arrived at a different ratio because it first reduced Robert's economic damages from $1,380,000 to $932,462.33 pursuant to the Hanif-Nishihama rule, and then divided $932,462.33 by $3,432,462.33 (Robert's total amount of damages after the reduction). Because we hold that the Hanif-Nishihama reduction was erroneous, we also hold that the correct ratio is 0.3556701.

b. Step 2: Determine the Amount of Pre-Verdict Settlements That Should Be Allocated To Robert's Personal Injury Claims

The next step is to determine the amount of the pre-verdict settlements that should be allocated to Robert's personal injury claims. In order to do so, we need to first allocate the amounts to be applied to the heirs' wrongful death claims and to Mary Lou's loss of consortium claim.

i. Wrongful Death Claims

Mary Lou argues that the plaintiffs and the settling defendants agreed to allocate 50 percent of the settlements for the anticipated wrongful death suit of Robert's heirs. The trial court disagreed and allocated 45 percent to the wrongful death claims, which equals $2,581,200. We review this allocation under the deferential abuse of discretion standard. (Jones, supra, 132 Cal.App.4th at p. 1011.) For reasons we shall explain, we hold that the trial court did not abuse its discretion.

Because the pre-verdict settlement agreements had not previously been judicially approved, the trial court was not bound by the allocations made in the agreements.15 (Jones, supra, 132 Cal.App.4th at p. 1009.) "Instead, the court's task was to determine whether there was a reasonable basis on which to justify those allocations." (Ibid.). It was the plaintiff's burden to present evidence from which the trial court could determine the reasonableness of the proposed allocations. (Ibid.) " `[W]here an allocation is made of settlement proceeds which will affect the ultimate setoff or credit that a nonsettling defendant will receive against any future judgment, the allocation may not be given presumptive effect unless it was the product of adverse negotiation.' [Citation.] Ordinarily `settling defendants . . . are not in an adversarial position with plaintiffs as to the allocation of settlement proceeds to separate causes of action. While plaintiffs have an interest in allocating as large an amount as possible to causes of action, in which there are no nonsettling defendants, the settling defendants will be released of further claims against them regardless of the allocation and thus have no interest in the allocation of the settlement proceeds beyond their interest in obtaining a good faith determination.' [Citation.] Accordingly, `[w]here the settling parties have agreed to allocate less than all of the settlement amount to a portion of the causes of action, an evidentiary showing is required to justify such allocation.' [Citation.]

"The party seeking to rely on the allocation `must explain to the court and to all other parties, by declaration or other written form, the evidentiary basis for any allocations and valuations made, and must demonstrate that the allocation was reached in a sufficiently adversarial manner to justify the presumption that a reasonable valuation was reached.' [Citation.] The settling parties are not required `to make a complete explanation of their rationale for the allocation of settlement consideration or to set forth a factual matrix showing the allocation by trade or by defendant.' [Citation.] But the settling parties are required to `furnish to the court and to all parties an evidentiary showing of a rational basis for the allocations made and the credits proposed. They must also show that they reached these allocations and credit proposals in an atmosphere of appropriate adverseness so that the presumption may be applied that a reasonable valuation was reached.' [Citation.]" (Jones, supra, 132 Cal.App.4th at pp. 1009-1010, fn. omitted.)

In Jones, the plaintiffs' evidentiary showing was a declaration submitted by their attorney stating, "`The Compromise and Release memorializing each settlement reflects allocations that are reasonable . . . and were arrived at by reference to my firm's experience prosecuting like claims up to and through verdict, as well as by reference to recent Court of Appeal (Division 1) decisions approving said allocations.'" (Jones, supra, 132 Cal.App.4th at p. 1010.) The court held that this evidence was insufficient to meet the plaintiffs' burden of showing the allocations of the settlement agreements were reasonable. (Ibid.) The fatal flaw in the plaintiffs' declaration was that it was "not based on an individualized consideration of the potential claims of [the plaintiffs'] heirs." (Ibid.).

Here, plaintiff Mary Lou's evidence consisted of declarations submitted by her attorneys. Although the declarations mainly focused on the attorneys' experience in other cases, attorney Philip Harley did make some statements specifically relating to Robert's relationship with his family, and thus the heirs' potential wrongful death claims.16 However, the trial court also observed the trial testimony of Mary Lou and her daughter Jamie Fierro regarding Robert's relationship with his heirs. The trial court was entitled to assess Harley's declaration in light of the testimony it observed first hand.

While plaintiff's attorneys identified the settling parties and the allocations they reached in their settlements, they did not "`show that they reached these allocations and credit proposals in an atmosphere of appropriate adverseness so that the presumption may be applied that a reasonable valuation was reached.'" (Jones, supra, 132 Cal.App.4th at p. 1010.) They did not, for example, state that there was any negotiation regarding the allocations among the settling parties. Under these circumstances, we cannot hold that the trial court abused its discretion in allocating 45 percent to the wrongful death claims instead of the 50 percent stated in the settlement agreements.

Abex also challenges the trial court's allocation of 45 percent to wrongful death claims. However, Abex's challenge is not based on an individualized consideration of the particular wrongful death claims at issue. Instead, Abex compares the trial court's allocation here to the allocation made in other published cases. This is simply not the correct analysis. Abex did not meet its burden of showing that the trial court abused its discretion by allocating 45 percent of the pre-verdict settlements to wrongful death claims.

ii. Loss of Consortium Claim

The trial court allocated 10 percent of the settlements, that is, $573,600, to loss of consortium based on its independent exercise of discretion. Mary Lou argues that the trial court should have adopted the one-sixth ratio set forth in the settlement agreements, i.e., $956,000. Abex contends that $175,000 should be allocated to loss of consortium because that is the amount awarded by the jury.17 All three methods are incorrect.

The loss of consortium claim is different than the wrongful death claims because the jury actually made a finding regarding the former and did not do so with respect to the latter. As a result, the trial court had wide discretion in allocating prior settlements to the wrongful death claims, but did not have such discretion with respect to the loss of consortium claim. (Jones, supra, 132 Cal.App.4th at p. 1008; Hackett, supra, 98 Cal.App.4th at p. 1242.)

The trial court was obligated to use the ratio of damages for loss of consortium to total damages awarded by the jury, multiplied by the "nonwrongful death portion" of the settlements. (Hackett, supra, 98 Cal.App.4th at p. 1244, fn. 13; accord Jones, supra, 132 Cal.App.4th at p. 1008.) Hence, the loss of consortium allocation is calculated by multiplying 0.0431565 ($175,000/$4,055,000) by $3,154,800 (the amount of the settlements relating to personal injury and loss of consortium claims), which equals $136,150.43.

iii. Personal Injury Claims

Having determined that the allocation to wrongful death claims is $2,581,200, and that the allocation to loss of consortium is $136,150.43, we subtract those amounts from the settlement ($5,736,000 less $2,581,200 less $136,150.43) for a total of $3,018,649.57. This is the amount of the pre-verdict settlements that must be allocated to Robert's personal injury claims.

c. Step 3: Calculate the Credit Against Economic Damages

The third step is to multiply the ratio of 0.3556701 by $3,018,649.57, which equals $1,073,643.40.18 This is the amount of credit Abex is entitled to apply to the $1,380,000 in economic damages awarded by the jury. After applying this credit, the net amount of economic damages is $306,356.60, which we will round to $306,357.

5. The Trial Court Did Not Abuse Its Discretion in Awarding Costs

A prevailing party is entitled to recover costs that were reasonably necessary to conduct the litigation. (Code Civ. Proc., § 1033.5, subd. (c)(2).) Allowable costs must be reasonable in amount. (Id. at § 1033.5, subd. (c)(3).) A verified memorandum of costs is prima facie evidence that the costs are allowable, and the burden of showing that an item of cost is not properly chargeable or is unreasonable is upon the objecting party. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 (Nelson).) We review a cost award for abuse of discretion. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1556-1557.)

Abex argues that because it was found 5 percent at fault, it was only liable for 5 percent of plaintiff's costs. A similar argument was rejected in Nelson. There, three plaintiffs sued three defendants. Two of the plaintiffs settled prior to trial. At the trial, two of the defendants prevailed against the remaining plaintiff. Upon the non-settling plaintiff's motion to tax, the trial court reduced the prevailing defendants' pre-trial costs by two-thirds, which it allocated to the settling plaintiffs. (Nelson, supra, 72 Cal.App.4th at p. 122.) The Court of Appeal reversed, holding that "an across-the-board reduction based upon the number of plaintiffs, without regard to the reason the costs were incurred, is not a determination of the necessity or reasonableness of the costs." (Id. at p. 130.) Similarly, in this case, an across-the-board reduction of plaintiff's costs by 95 percent would have been an abuse of discretion by the trial court. By declining to make such a reduction, the trial did not abuse its discretion.

In the alternative, Abex argues that many of the specific costs claimed by Mary Lou were unrelated to Abex and were only related to Mary Lou's claims against other defendants. The Nelson court recognized that such costs may be inappropriate.19 However, Abex did not meet its burden of showing with admissible evidence that particular costs were unrelated to Mary Lou's suit against Abex.

In its motion, Abex listed 26 witnesses and the associated deposition transcription costs. Abex argued: "Many of these witnesses were not named or retained (or co-retained) by [Abex], or [Abex] did not ask them questions at their depositions, and none of these witnesses were called at trial by either side. As such, none of these deposition costs were `reasonably necessary to the conduct of the litigation' against [Abex]." Abex also argued that travel costs associated with certain depositions should be taxed. However, Abex did not provide any evidence to support these arguments, such as copies of the deposition transcripts or a declaration by an attorney who attended the depositions.

Likewise, Abex argued that the filing costs of 12 different motions were not recoverable. However, Abex did not provide the trial court with copies of the motions or a description of the motions in a declaration. Although the title of each motion indicates its general nature, we cannot determine from the title alone that the trial court abused its discretion in denying Abex's request to tax the filing fees for particular motions.

Finally, Abex argued that the trial court should not have awarded plaintiff the cost of service of process on other parties, which totals $1,381.87. Mary Lou argued that this cost is recoverable because Abex argued at trial that other parties were responsible for her damages, and thus she was required to bring other parties into the suit in order to maintain its action against Abex. Although this is a close call, the trial court acted within its discretion in denying Abex's request to tax these costs.

Abex's reliance on Vons Cos., Inc. v. Lyle Parks Jr., Inc. (2009) 177 Cal.App.4th 823 (Vons) is misplaced. There, the Court of Appeal held that the trial court erred in granting a motion to tax costs. (Id. at p. 831.) The court found that the prevailing party, Vons, "may have overreached in its memorandum of costs" because it sought to recover costs associated with claims it did not prevail on. (Id. at p. 832.) However, the court also found that the trial court should not have stricken all of Vons's costs because it could have determined, based on the arguments and evidence presented by both parties, which costs were recoverable and which costs were not. (Ibid.) This evidence included, inter alia, a declaration from Vons's counsel describing the various depositions and hundreds of pages of deposition transcripts. (Id. at p. 828.) Here, by contrast, there was no such evidence for the trial court to review. This case therefore is distinguishable from Vons.

Likewise, Abex's reliance on Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672 (Bell) is unpersuasive. In Bell, the plaintiff prevailed on some causes of action and did not prevail on other causes of action. Because the plaintiff's attorney admitted in his declaration that certain attorney fees and costs could be apportioned to the plaintiff's unsuccessful claims, the Court of Appeal held that the trial court abused its discretion in failing to apportion the requested fees and costs between the successful and unsuccessful claims. (Id. at p. 689.) The present case is distinguishable because there is no similar evidence regarding plaintiff's claims against Abex versus plaintiff's claims against other defendants.

In sum, we hold that the trial court did not abuse its discretion in finding that Abex did not meet its burden of showing that plaintiff's costs were not reasonably necessary.

DISPOSITION

The judgment is reversed. On remand, the trial court is directed to enter a new judgment, in accordance with this opinion, in plaintiff's favor and against Abex in the amount $440,107, plus costs in the amount of $85,805.11, for a total of $525,912.11. The parties are to bear their own costs on appeal.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

FootNotes


1. We refer to Robert Smith and Mary Lou Smith by their first names for purposes of clarity and not out of disrespect.
2. As we will explain, post, there is a three-step method of calculating this credit. Plaintiffs arrived at their $678,760 credit by multiplying the ratio of Robert's economic damages to his total damages ($1,380,000/$3,880,000, or 35.5 percent) by the amount of the settlement plaintiffs allocated to Robert's personal injury damages (1/3 of $5,736,000, or $1,912,000).
3. The court and plaintiffs' counsel then had the following exchange: "The Court: [¶] . . . [¶] The question before me is should I just go down that path because that's an established ratio, longstanding and everyone else settled for 50 percent as to the wrongful death. [¶] [Plaintiffs' counsel]: And it's been accepted by the courts in the past. [¶] The Court: Well, but others have too. If it were just a computer standard 50 percent always goes to wrongful death, you don't really need me . . . ."
4. March 26, 2009 was a date after the special verdict was returned but before Robert died. Because the judgment was entered as of March 26, 2009, Mary Lou, as Robert's successor in interest, can recover future economic damages and noneconomic damages for Robert's pain and suffering. (See Cadlo v. Metalclad Insulation Corp. (2007) 151 Cal.App.4th 1311.)
5. The trial court arrived at $932,462.33 figure by subtracting $447,537.67 from $1,380,000. $900,000 less $452,462.33 is $447,537.67.
6. This $701,182.98 credit was calculated by multiplying the ratio of economic damages to total damages, excluding loss of consortium ($932,462.33/$3,432,462.33, i.e., 27.165 percent) by the portion of the pre-verdict settlements allocated to Robert's personal injury claims ($2,581,200, i.e. 45 percent of $5,736,000.)
7. Dr. Hammar gave similar testimony in this case.
8. The Rutherford court stated: "[A]t a level of abstraction somewhere between the historical question of exposure and the unknown biology of carcinogenesis, the question arises whether the risk of cancer created by a plaintiff's exposure to a particular asbestos-containing product was significant enough to be considered a legal cause of the disease. Taking into account the length, frequency, proximity and intensity of exposure, the peculiar properties of the individual product, and any other potential causes to which the disease could be attributed (e.g., other asbestos products, cigarette smoking), and perhaps other factors affecting the assessment of comparative risk, should inhalation of fibers from the particular product be deemed a `substantial factor' in causing the cancer?" (Rutherford, supra, 16 Cal.4th at p. 975.)
9. The Rutherford majority did not use the words "slight" or "trivial." Abex did not cite any authority for the use of those words in its proposed special jury instruction.
10. In Howell v. Hamilton Meats & Provisions, Inc. (2010) __ Cal.4th __, 106 Cal.Rptr.3d 770, the court granted review regarding the following issues: "(1) Is the `negotiated rate differential'—the difference between the full billed rate for medical care and the actual amount paid as negotiated between a medical provider and an insurer—a collateral source benefit under the collateral source rule, which allows plaintiff to collect that amount as economic damages, or is the plaintiff limited in economic damages to the amount the medical provider accepts as payment? (2) Did the trial court err in this case when it permitted plaintiff to present the full billed amount of medical charges to the jury but then reduced the jury's award of damages by the negotiated rate differential?"
11. In response to this problem, the Legislature enacted Code of Civil Procedure section 667.7. This section "provides generally that when a plaintiff in a medical malpractice action obtains an award of $50,000 or more for `future damages,' the trial court, on motion of either party, shall enter a judgment providing for the periodic payment of those damages." (American Bank, supra, 36 Cal.3d at p. 366-367.) This statute does not apply to this case because it is not a medical malpractice action.
12. Abex argued at oral argument that the stipulation was part of a pre-verdict understanding (i.e. agreement) that post-verdict discovery would be conducted on the amount medical expenses incurred by Robert and that the $900,000 award for past and future medical expenses would be adjusted accordingly. There is nothing in the record, however, regarding any such pre-verdict agreement. Indeed, the record indicates that after the verdict, the parties hotly disputed the nature of the stipulation and whether the $900,000 award for past and future medical expenses could be adjusted.
13. Mary Lou argues that this reduction was also erroneous because Abex's motion to correct judgment was effectively an untimely motion for a JNOV decided after the trial court lost jurisdiction to decide such a motion. We find this argument unpersuasive. The trial court's interim judgment dated April 6, 2009, was not an appealable, final judgment because an essential issue—namely the total amount of damages—was not determined. Thus the trial court retained jurisdiction to adjudicate Abex's motion to correct judgment prior to the entry of its final, appealable judgment on June 12, 2009.
14. Code of Civil Procedure section 877 provides in relevant part: "Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect: [¶] (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater."
15. Mary Lou argues that the trial court was required to use the settlement allocations because it made a "finding" that these allocations were reasonable. This is incorrect. Although the trial court stated during the hearing on plaintiffs' motion to apply settlement credits that the settlement allocations were not unreasonable, it later stated that it was up to the court to make allocations, and that it found 45 percent for the wrongful death claims to be reasonable. The trial court never made the "finding" Mary Lou claims it did.
16. Harley stated: "[T]he [wrongful death] claims had a potentially higher value than normal because of the close family relationships; the fact that Robert Smith provided financial support for his children's educations and would have done the same for his grandchildren; and the fact that Mr. Smith was intimately involved in the lives of his grandchildren by providing day care, attending Little League games, accompanying them on vacations, and even acting as their chauffeur. The type of loss suffered by Mr. Smith's family typically results in large [wrongful death] damages."
17. Abex took this position in the trial court, but does not clearly indicate what its position is on appeal.
18. Alternatively, this figure can be calculated by multiplying the ratio of the economic damages to the total verdict ($1,380,000/$4,055,000, i.e., .034032059) by the amount of the settlement attributable to nonwrongful death claims ($3,154,800). (Hackett, supra, 98 Cal.App.4th at p. 1245.)
19. The court stated: "We do not suggest a trial court is never justified in disallowing costs which were incurred in defense of actions or proceedings unrelated to one or more of the plaintiffs, without regard to whether they were necessary nor reasonable. However, there was no attempt here to distinguish between costs incurred as a result of the actions or tactics of one plaintiff as opposed to another." (Nelson, supra, 72 Cal.App.4th at p. 130.)

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