Filed 1/9/14
                              CERTIFIED FOR PUBLICATION




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                        (Sacramento)



F.P.,                                                              C062329

                 Plaintiff and Respondent,               (Super. Ct. No. 06AS00671)

        v.

JOSEPH MONIER,

                 Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Sacramento County, Robert
Ahern, Judge. (Retired judge of the Santa Clara Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

       Ortiz Law Office, Jesse S. Ortiz III; Jay-Allen Eisen Law Corporation, Jay-Allen
Eisen, and Aaron S. McKinney for Defendant and Appellant.

       Law Offices of John P. Henderson, John P. Henderson, and David C. Henderson
for Plaintiff and Respondent.




                                             1
       Following a bench trial, the trial court found defendant Joseph Monier “molested
his biological cousin, Plaintiff [F.P.,] numerous times when she was ten years old” and
ordered him to pay damages to plaintiff in the amount of $305,096, consisting of $55,096
for special economic damages ($44,800 for lost income and $10,296 for past and future
medical expenses), and $250,000 for general noneconomic damages.
       Defendant appeals, contending the trial court erred in failing to issue a statement
of decision following his timely request for one, and the error is reversible per se.
According to defendant, “[w]ithout a statement of decision, it is impossible to tell
whether the trial court allocated general damages as required by Proposition 51.”1
Defendant also claims there is no substantial evidence to support the trial court‟s award
of lost income, and the trial court erred in failing to offset defendant‟s parents‟ $275,000
pretrial settlement with plaintiff against plaintiff‟s economic damage award.
       We shall conclude the trial court erred in failing to issue a statement of decision.
Although such a failure is often treated as reversible per se (Miramar Hotel Corp. v.
Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129 (Miramar)), we find no
miscarriage of justice permitting a reversal here. (Cal. Const., art. VI, § 13.)
Significantly, we shall conclude defendant forfeited any right to apportionment under
Proposition 51 by failing to timely raise the issue at trial; thus, the absence of a statement
of decision on the issue of general noneconomic damages is of no consequence. We shall
further conclude that substantial evidence supports a finding plaintiff lost income in the
amount of $42,120, not $44,800 as found by the trial court, and defendant is entitled to a
setoff from plaintiff‟s adjusted award of economic damages in the amount of $47,664.
Accordingly, we shall modify the judgment to reduce the amount of special economic




1 The Fair Responsibility Act of 1986 (Civ. Code, § 1431 et seq.); hereafter
Proposition 51.

                                              2
damages defendant must pay plaintiff to $4,752 and the total judgment to $254,752, and
affirm the judgment as modified.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In 1990 and 1991, defendant, who was 17 years old and a senior in high school,
committed various acts of sexual battery upon plaintiff, his 10-year-old cousin. Such acts
included plaintiff orally copulating defendant, and defendant performing anal sex on
plaintiff. This conduct occurred while plaintiff was under the care and supervision of
defendant‟s parents.2 During the same period of time, plaintiff‟s father also was sexually
abusing her by touching her genitals and having vaginal intercourse with her.
       Plaintiff first sought treatment for depression and anxiety, which she attributed to
the sexual abuse, in 2005 when she was 24 years old. From June until approximately
August 2005 she received counseling from Christine Volker, and from September 2005
until December 2007 she was treated by Dr. Laurie Wiggen, a licensed clinical
psychologist. Dr. Wiggen diagnosed plaintiff with posttraumatic stress disorder, which
she attributed to the trauma plaintiff suffered as a result of being molested by her father
and defendant. Dr. Wiggen could not distinguish between the harm done by plaintiff‟s
father and defendant; rather, she opined that their conduct was “cumulatively impactful in
their damage emotionally to [plaintiff] . . . .”
       Plaintiff also was evaluated by Dr. Eugene Roeder, a licensed psychologist, in July
2005. The purpose of that one-day evaluation was to assess plaintiff‟s psychological
functioning. Dr. Roeder diagnosed plaintiff with major depression, an anxiety disorder,
and posttraumatic stress disorder. According to Dr. Roeder, the posttraumatic stress




2 At trial, defendant vehemently denied sexually abusing plaintiff. On appeal, however,
defendant does not challenge the trial court‟s finding he molested plaintiff. The issues
raised on appeal are limited to the trial court‟s failure to issue a statement of decision and
damages.

                                               3
disorder diagnosis is consistent with plaintiff‟s “descriptions of being a sexual molest
victim.” Like Dr. Wiggen, Dr. Roeder could not distinguish between the symptoms
plaintiff was experiencing as a result of being molested by defendant from those she was
experiencing as a result of being molested by her father, but he found “the sexual
molestation by her father was dramatically more traumatic than by her cousin
[(defendant)]. . . . [¶] . . . [¶] . . . because her relationship with her father was a much
more central, basic relationship in her life” and “[h]er relationship with the [defendant]
was more tangential.”
        In February 2006, plaintiff initiated the instant action against defendant and
defendant‟s parents. In her complaint, plaintiff asserted causes action against defendant
for sexual battery in violation of Penal Code sections 288, subdivisions (a) and (b)(1)
(lewd and lascivious acts), 288a, subdivisions (b)(1) and (c)(2) (oral copulation), 286,
subdivisions (b)(1) and (c)(2) (sodomy), and 289, subdivisions (a)(1) and (b) (sexual
penetration). She also asserted causes of action against defendant for gender violence
(Civ. Code, § 52.4, subd. (a)) and intentional infliction of emotional distress. Plaintiff
asserted a negligence cause of against defendant‟s parents, claiming they failed to
reasonably care for, supervise, direct, oversee, and protect her from the harm inflicted
upon her by defendant. As relevant here, plaintiff prayed for general and special
damages “jointly and severally as to all defendants.”
        In his answer, defendant denied the allegations and asserted 16 affirmative
defenses, including that others were at fault as to the matters and things alleged by
plaintiff and that any liability should be apportioned among them.
        Prior to trial, defendant‟s parents‟ homeowner‟s insurance carrier settled plaintiff‟s
negligence cause of action against defendant‟s parents for $275,000 in exchange for a
general release. A copy of the settlement agreement was filed with the trial court on
February 4, 2008, and the trial court specifically was made aware of the settlement prior
to trial.

                                               4
        The matter was tried to the court without a jury. On April 29, 2009, the trial court
orally announced its tentative decision, finding defendant committed the acts complained
of by plaintiff, and his conduct was a substantial factor in causing her injuries. (Cal.
Rules of Court, rule 3.1590.) The trial court indicated it was awarding damages to
plaintiff in the amount of $305,096, consisting of $44,800 for lost income, $10,296 for
past and future medical expenses, and $250,000 for general noneconomic damages. The
trial court instructed plaintiff‟s trial counsel to prepare a judgment.
        Later that same day, defendant timely filed a request for a statement of decision.
(Code Civ. Proc., § 632;3 Cal. Rules of Court, rule 3.1590(d) & (n).) As relevant here,
the request sought a statement setting forth “the basis upon which the Court awarded
special damages, the basis upon which the court awarded emotional distress damages, the
basis upon which the court awarded past and future medical expenses, and the basis upon
which the court granted lost wages.” Meanwhile, plaintiff‟s trial counsel prepared a
judgment and submitted it to the trial court on May 1, 2009, along with a declaration
outlining the events leading up to its submission. In his declaration, plaintiff‟s trial
counsel explained that he faxed a copy of the judgment to defendant‟s trial counsel
following trial on April 29, 2009, and was informed that defendant‟s trial counsel was no
longer at that number. The next day, plaintiff‟s trial counsel faxed a copy of the
judgment to defendant‟s trial counsel‟s new fax number and left a voicemail message
advising him that the trial court “needed the Judgment Following Court Trial reviewed
and signed if approved, immediately as [the trial judge, who was visiting,] was leaving
Sacramento on May 1, 2009.” Plaintiff‟s trial counsel did not hear from defendant‟s trial
counsel and submitted the judgment to the trial court the next day, May 1, 2009. The
record fails to disclose that any notice was taken by the trial court of defendant‟s request




3   Further undesignated statutory references are to the Code of Civil Procedure.

                                               5
for a statement of decision, and judgment was filed on May 1, 2009, without any formal
statement of decision having been rendered.
       Defendant timely appeals.
                                        DISCUSSION
                                              I
  The Trial Court‟s Error in Failing to Issue a Statement of Decision Does Not Warrant
    Reversal Absent a Showing That Remanding the Matter for the Preparation of a
         Statement of Decision Would Benefit Defendant or Assist This Court
       Defendant contends the trial court‟s error in failing to issue a statement of decision
is reversible per se, without inquiry into prejudice.
       Pursuant to section 632, upon request of any party in a nonjury trial, the trial judge
“shall issue a statement of decision explaining the factual and legal basis for its decision
as to each of the principal controverted issues . . . .” Where, as here, the trial is not
concluded within one day, the request must be made within 10 days after the court
announces its tentative decision. (Ibid.) A statement of decision is required only on the
principal controverted issues specified in the request for a statement of decision; omitted
issues are deemed waived. (City of Coachella v. Riverside County Airport Land Use
Com. (1989) 210 Cal.App.3d 1277, 1292.) Normally, the failure to issue a statement of
decision is considered reversible error, and the matter is remanded to the trial judge who
originally presided over the trial to complete the process. (Karlsen v. Superior Court
(2006) 139 Cal.App.4th 1526, 1530-1531 (Karlsen); see also Miramar, supra, 163
Cal.App.3d at p. 1129.) “If the trial judge who originally presided over the trial has
become incapacitated or has died, no other judge can perform the task and the matter
must be retried.” (Karlsen, 139 Cal.App.4th at p. 1531, italics omitted.)
       Here, defendant timely requested a statement of decision on the same day the trial
court announced its tentative decision (§ 632), and judgment was filed two days later
without a statement of decision having been rendered. Clearly, this was error. (Ibid.)



                                               6
The question is whether we must reverse the judgment and remand the matter without
any inquiry into prejudice. The answer is no.
       “From as far back as 1872, a fundamental precept in California is that in civil
cases only prejudicial error is reversible.” (Biscaro v. Stern (2010) 181 Cal.App.4th 702,
709, citing § 475, & Cal. Const., art. VI, § 13.) Article VI, section 13 of the California
Constitution provides that a judgment cannot be set aside “unless, after an examination of
the entire cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.” “This fundamental restriction on
the power of appellate courts is amplified by Code of Civil Procedure section 475, which
states that trial court error is reversible only where it affects „. . . the substantial rights of
the parties . . . ,‟ and the appellant „sustained and suffered substantial injury, and that a
different result would have been probable if such error . . . had not occurred or existed.‟
Prejudice is not presumed, and the burden is on the appealing party to demonstrate that a
miscarriage of justice has occurred. [Citations.]” (Waller v. TJD, Inc. (1993) 12
Cal.App.4th 830, 833.)
       Notwithstanding the above, “some errors in civil cases remain reversible per se,
primarily when the error calls into question the very fairness of the trial or hearing itself.”
(Biscaro v. Stern, supra, 181 Cal.App.4th at p. 709.) For example, the following have
been found to be reversible per se: erroneous denial or substantial impairment of the
constitutional right to a trial by jury (People v. One 1941 Chevrolet Coupe (1951) 37
Cal.2d 283, 300; Holley v. J & S Sweeping Co. (1983) 143 Cal.App.3d 588, 592-594);
erroneous denial of a hearing (Adoption of Baby Girl B. (1999) 74 Cal.App.4th 43, 55);
and representation by counsel with an adverse interest (Hammett v. McIntyre (1952) 114
Cal.App.2d 148, 158). Conversely, “there is no rule of automatic reversal or „inherent‟
prejudice applicable to any category of civil instructional error, whether of commission
or omission.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.)



                                                 7
       Defendant relies on Miramar and a series of other Court of Appeal decisions,
including a recent decision of this court, in support of his assertion that the trial court‟s
error in failing to issue a statement of decision is reversible per se. In Miramar, the court
held the trial court‟s failure to render a formal statement of decision in accordance with
section 632 constituted reversible error per se, explaining a statement of decision is
necessary to frame the issues for appeal, assist the appellate court in its review, and
permit the parties to make proposals and objections concerning its content. (Miramar,
supra,163 Cal.App.3d at p. 1129.) The court did not mention the constitutional mandate
that no judgment shall be set aside in the absence of a miscarriage of justice. (See Cal.
Const., art. VI, § 13.) Instead, the court simply stated: “We impose no substantial
burden upon trial courts by insisting upon adherence to the legislative mandate as
explicated by [former] rule 232. The trial court is specifically authorized to designate a
party to prepare the statement of decision [citations] and thus is required only to review
the statement and any objections thereto and to make or order to be made any corrections,
additions, or deletions it deems necessary or appropriate. [¶] Were we, conversely, to
condone a total or even a material failure by trial courts to observe the prescribed
procedure for revealing the basis for their respective decisions, we would be thrusting a
quite substantial burden upon the litigants and also upon the appellate courts. At the
outset of virtually every appeal of such a case, there would emerge a threshold question
as to precisely what were the „principal controverted issues at trial.‟ It is ineluctable that
such a classification could most easily be made by the trial judge. More importantly,
where a request for a statement of decision has been made and an inadequate statement or
no statement whatsoever has been provided, then each appeal is inevitably based upon
what is tantamount to a claim that the judgment is not supported by substantial evidence.
This in turn requires both the litigants and the appellate court to conduct an examination
of the entire record in order to properly review the trial court decision.” (Miramar,
supra, at pp. 1129-1130.)

                                               8
       Presiding Justice Spencer filed an opinion concurring in the result. She did so
“[w]ith great reluctance,” explaining: “Ordinarily, I consider a rule of per se reversibility
inadvisable when, as in the instant matter, there is no substantial evidence to support a
judgment for the appealing party and a reversal rectifies no miscarriage of justice. In the
past, this court has used the harmless error standard to affirm a judgment notwithstanding
the presence of the same procedural error present in the instant case. [¶] However, it
now appears the practice in the trial courts of issuing minute orders, such as that utilized
in the case at bar, in lieu of complying with the requirements of section 632 is on the
increase. The far-reaching and burdensome effects of that practice mandate that it end
immediately. Since I perceive no means of effecting that result other than per se reversal,
I join with the majority.” (Miramar, supra, 163 Cal.App.3d at pp. 1130-1131 (conc. opn.
of Spencer, P. J.).)
       Neither the Miramar majority nor any of the other decisions cited by defendant
mention the constitutional requirement of a miscarriage of justice, much less attempt to
explain why a trial court‟s error in failing to issue a statement of decision is not subject
thereto. (Miramar, supra, 163 Cal.App.3d at pp. 1127-1129; see also Wallis v. PHL
Associates, Inc. (2013) 220 Cal.App.4th 814, 825; Gruendl v. Oewel Partnership, Inc.
(1997) 55 Cal.App.4th 654, 659-662; Whittington v. McKinney (1991) 234 Cal.App.3d
123, 125-129; Social Service Union v. County of Monterey (1989) 208 Cal.App.3d 676,
681; Gordon v. Wolfe (1986) 179 Cal.App.3d 162, 165, superseded by statute on another
point as stated in In re Marriage of Gray (2002) 103 Cal.App.4th 974, 978-979; R. E.
Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal.App.3d 50, 54
(R. E. Folcka); In re Marriage of McDole (1985) 176 Cal.App.3d 214, 219, disapproved
on another ground by In re Marriage of Fabian (1986) 41 Cal.3d 440.)4



4This court recently followed Miramar in Wallis v. PHL Associates, Inc., supra, 220
Cal.App.4th at page 825. However, in Wallis the parties did not raise the applicability of

                                              9
       We may not ignore the constitutional requirement of a miscarriage of justice as a
prerequisite for reversal. (See generally Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th
780, 801-802; Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580.) Moreover, as
we shall explain, Miramar’s holding is at odds with decisions of our Supreme Court
applying former section 632.
       “[S]ection 632 originally required written findings of fact and conclusions of law
in both superior and municipal courts. [Citation.] Such findings were considered
fundamental to the decisionmaking process. [Citation.] The purpose of the requirement
was described in Frascona v. Los Angeles Ry. Corp. (1920) 48 Cal.App. 135, 137-138
[191 P. 968]: „The right to findings is a substantial right, as inviolate, under the statute,
as that of trial by jury under the constitution. [Citation.] The code provision requiring
written findings of fact is for the benefit of the court and the parties. To the court it gives
an opportunity to place upon record, in definite written form, its view of the facts and the
law of the case, and to make the case easily reviewable on appeal by exhibiting the exact
grounds upon which the judgment rests. To the parties, it furnishes the means, in many
instances, of having their cause reviewed without great expense. It also furnishes to the
losing party a basis of his motion for a new trial; he is entitled to know the precise facts
found by the court before proceeding with his motion for a new trial, in order that he may
be able to point out with precision the errors of the court in matters either of fact or law.
[Citation.]‟ ” (R. E. Folcka, supra, 191 Cal.App.3d at pp. 52-53.)
       Notwithstanding the “fundamental,” “substantial,” and “inviolate” nature of the
right to express findings under former section 632, as expressed in R. E. Folcka, in Edgar
v. Hitch (1956) 46 Cal.2d 309, our Supreme Court held that a trial court‟s failure to make
findings on the material issues as specified in former section 632, is subject to a



article VI, section 13 of the California Constitution. Nor apparently did the parties in
many, if not all, of the cases following Miramar.

                                              10
prejudicial error analysis. (Edgar v. Hitch, supra, at pp. 312-313.) There, Edgar agreed
to sell hay to Hitch for $42.50 per ton. Hitch claimed the purchase price was $32.50 per
ton and paid Edgar for 66 tons at this rate with two checks, the second of which included
the notation: “ „Pd. in full for all Hay Bought From John Edgar @ 32.50 Ton.‟ ” (Id. at
p. 310.) Edgar sued for the unpaid balance of $660 then cashed the checks. Following a
bench trial, the trial court found the agreed price was $42.50 per ton and awarded Edgar
the unpaid balance. The trial court did not make any findings on Hitch‟s accord and
satisfaction defense. (Id. at pp. 310-311.) On appeal, Hitch argued the evidence at trial
established such a defense as a matter of law. In response, Edgar pointed to evidence that
Hitch knew the price was $42.50 per ton and argued Hitch‟s “insistence on a price of
$32.50 was not the result of a genuine misunderstanding or a failure of honest minds to
meet but was merely an attempt to „get away with‟ paying less than he originally agreed
to pay.” (Id. at pp. 312, 311.)
       Our Supreme Court reversed, explaining, “Section 632 of the Code of Civil
Procedure required the trial court to make findings on the material issues in the case, and
the findings must be examined to determine whether the judgment was based on the
defendant‟s bad faith. The defendant is entitled to a finding on the validity of his defense
of accord and satisfaction. [Citations.] In the absence of such a finding, sufficient
support for the judgment for plaintiff cannot be ascertained. Therefore, under the
circumstances here presented a failure to make a finding on the defense of accord and
satisfaction of a bona fide dispute would constitute prejudicial error.” (Edgar v. Hitch,
supra, 46 Cal.2d at p. 312, italics added; see also Bailey v. Leeper (1956) 142 Cal.App.2d
460, 465 [holding trial court‟s error in failing to make specific findings “is one in
procedure and therefore not reversible under the Constitution (art. VI, § 4 1/2
[predecessor to art. VI, § 13]) unless from an examination of the entire record we can say
that the error complained of has resulted in a miscarriage of justice”].)



                                             11
       A 1968 amendment to section 632 abolished the mandatory requirement for
findings of fact and conclusions of law and substituted the alternatives of (1) findings on
request or (2) a written judgment. In Guardianship of Brown (1976) 16 Cal.3d 326, our
Supreme Court held that the failure to issue requested findings on material issues under
section 632 was subject to a prejudicial error analysis. Relying on its earlier decision in
Edgar v. Hitch, supra, 46 Cal.2d 309, 312, our Supreme Court observed “that unless
waived, express findings are required on all material issues raised by the pleadings and
the evidence, and failure to find on a material issue will ordinarily constitute reversible
error.” (Guardianship of Brown, supra, 16 Cal.3d at p. 333, italics added.) There, the
trial court found Brown to be incompetent and, over the objection of his wife, issued an
order appointing Brown‟s mother guardian of his person and estate and authorizing the
mother to take Brown to New York for medical care. (Id. at pp. 330-331.) No finding
was made regarding whether it was in the best interest of Brown for his mother, rather
than his wife, to be appointed guardian. In concluding the trial court‟s failure to make
such a finding constituted reversible error, the court first explained that the issue was
properly raised: “The primary thrust of appellants‟ case before the trial court was that it
was in the best interest of the incompetent to remain with his wife in his home in San
Francisco pursuing the rehabilitation program which she had organized and coordinated
for him. [The wife] argued that upon a finding of incompetency the only consideration
governing the appointment of a guardian is the best interest of the incompetent. As
noted, in her objections to the court‟s findings, she specifically requested a finding on
that point. No express finding in that respect was made. If such a finding was required,
[the wife‟s] pleadings, briefs and requests for specific findings were sufficient to raise
and frame the best interest issue and apprise the court of its obligation to make such a
finding.” (Id. at p. 334.) The court then explained that such a finding was required
because the best interest of the incompetent is a material issue in every guardianship
proceeding, particularly where there are competing petitions for appointment. (Id. at

                                             12
p. 335.) Finally, after reviewing the evidence, the court concluded: “No finding having
been made on this material issue, and [the wife] having introduced substantial evidence to
support such a finding in her favor [citation], we conclude that the order appointing [the
mother] guardian must be reversed.” (Id. at p. 336; see also McAdams v. McElroy (1976)
62 Cal.App.3d 985, 996 [“failure to make an express finding on a material issue is not
always prejudicial”].)
       While the Legislature has since amended section 632, most notably in 1981 by
abolishing the requirement of findings and conclusions and instituting the statement of
decision process utilized today (Raville v. Singh (1994) 25 Cal.App.4th 1127, 1133, fn. 5;
former § 632), a statement of decision is equivalent to the findings of fact and
conclusions of law required by former section 632 (see R. E. Folcka, supra, 191
Cal.App.3d at p. 54), and “the case law on findings and conclusions under former section
632 can be applied by analogy to determine issues raised under present section 632”
(McCurter v. Older (1985) 173 Cal.App.3d 582, 592, disapproved on other grounds in In
re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1137).
       For all the foregoing reasons we decline defendant‟s invitation to reverse the
judgment and remand the matter without first considering whether the trial court‟s failure
to render a statement of decision setting forth “the basis upon which the Court awarded
special damages, the basis upon which the court awarded emotional distress damages, the
basis upon which the court awarded past and future medical expenses, and the basis upon
which the court granted lost wages” resulted in a miscarriage of justice.5 As we shall
explain, it did not.



5 Defendant also requested that the trial court “issue a statement of decision as to the
credibility of the witnesses presented by the Plaintiff and each of the witnesses presented
by [defendant], [and] the value the Court placed [on] all said witnesses . . . .” He does
not mention this specific request in his appeal. Moreover, a trial court need not discuss
each question listed in a party‟s request for a statement of decision, but need only explain

                                             13
                                            II
    Defendant Forfeited Any Right to Apportionment Under Proposition 51 by Failing to
                                 Raise the Issue at Trial
        Defendant sought a statement of decision setting forth, among other things, “the
basis upon which the court awarded emotional distress damages . . . .” According to
defendant, “Had the trial court set forth „the factual and legal basis‟ upon which it
awarded general damages against [him], . . . the parties and this Court would know what
percentage of fault the court attributed to him and what percentage to [plaintiff‟s] father,
or whether the $250,000 award represents [defendant‟s] proportionate share of some
larger but unidentified measure of noneconomic damages.” As we shall explain,
defendant forfeited any right to apportionment by failing to raise the issue at trial.
        Civil Code section 1431.2, which constitutes the heart of Proposition 51, states in
pertinent part: “In any action for personal injury . . . based upon principles of
comparative fault, the liability of each defendant for non-economic 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.” (Civ. Code, § 1431.2, subd. (a).)6 A defendant seeking a
Proposition 51 offset must not only plead comparative fault as an affirmative defense, he



the factual and legal basis for the court‟s decision regarding the principal controverted
issues at trial as are listed in the request. (Hellman v. La Cumbre Golf & Country Club
(1992) 6 Cal.App.4th 1224, 1230.) The only issues listed in the request relate to
damages. Thus, any duty the trial court had to render a statement addressing the
credibility of witnesses was limited to the issues relating to damages specified in
defendant‟s request.
6 “Non-economic” damages are such “subjective, non-monetary losses [as] pain,
suffering, inconvenience, mental suffering, emotional distress, loss of society and
companionship, loss of consortium, injury to reputation and humiliation.” (Civ. Code,
§ 1431.2, subd. (b)(2).)

                                              14
also must prove the comparative fault of others, and request that an allocation be made.
(Wilson v. Ritto (2003) 105 Cal.App.4th 361, 366-369; Kitzig v. Nordquist (2000) 81
Cal.App.4th 1384, 1398-1399; Conrad v. Ball Corp. (1986) 24 Cal.App.4th 439, 444-
445; Evid. Code, § 500.)
       Here, defendant pleaded comparative fault as an affirmative defense, alleging on
information and belief that plaintiff “as well as other individuals and entities as yet
unknown to Defendant,” were legally at fault for plaintiff‟s injuries, “and therefore any
liability should be apportioned among Plaintiff and all other such parties . . . based upon
their respective percentages of comparative fault or legal responsibility.” Defendant,
however, never raised the issue of apportionment at trial. He did not request that
noneconomic damages, if any, be apportioned between himself and any other individual
or entity, much less between himself and plaintiff‟s father. Nor did he argue how they
should be apportioned. By failing to do so, defendant forfeited any right he may have
had to apportionment. (See Del Cerro Mobile Estates v. Proffer (2001) 87 Cal.App.4th
943, 951.)
       Defendant suggests the trial court‟s failure to issue a statement of decision
somehow deprived him of the opportunity to request that noneconomic damages be
apportioned. Not so. While defendant does not dispute that his request for a statement of
decision is silent on the issue of apportionment, he claims that “[h]ad the trial court
responded to [his] request for a statement of decision, [he] would have had the
opportunity to file objections bringing the [issue] of apportionment . . . to the court‟s
attention and requiring the court to address [it].”7 Having failed to raise the issue of
apportionment at trial or in his request for a statement of decision, defendant would have



7 Pursuant to California Rules of Court, rule 3.1590(g), “Any party may, within 15 days
after the proposed statement of decision and judgment have been served, serve and file
objections to the proposed statement of decision or judgment.”

                                              15
had no basis to object to the trial court‟s proposed statement on the ground the trial court
failed to apportion plaintiff‟s noneconomic damages between himself and plaintiff‟s
father. Thus, defendant‟s assertion that he was denied the opportunity to request
apportionment lacks merit. The law is clear. A defendant seeking apportionment of
noneconomic damages under Proposition 51 must plead comparative fault as an
affirmative defense, prove the comparative fault of others, and request that an allocation
be made. (Wilson v. Ritto, supra, 105 Cal.App.4th at pp. 366-369; Kitzig v. Nordquist,
supra, 81 Cal.App.4th at pp. 1398-1399; Conrad v. Ball, supra, 24 Cal.App.4th at
pp. 444-445; Evid. Code, § 500.) Given those requirements, defendant‟s claim that he
was entitled to defer the issue until after trial is without merit.
       Gordon v. Wolfe, supra, 179 Cal.App.3d 162, relied on by defendant, does not
dictate a contrary result. There, the court held that where a plaintiff seeks general and
special damages, “ „it is the duty of the trial court, if it finds for plaintiff, to find
separately the general damages and the several categories of special damages.‟ ” (Id. at
p. 167) In that case, the judgment was for a lump sum figure; therefore, neither the
parties nor the court of appeal knew whether, or in what amount, the award was intended.
(Id. at pp. 167-168) Thus, the court found “[w]ithout a statement of decision, the
judgment is effectively insulated from review by the substantial evidence rule . . . .” (Id.
at p. 168.) Consistent with the decision in Gordon v. Wolfe, here, the trial court found
separately the general damages and the several categories of special damages, awarding
plaintiff $44,800 in lost income, $10,296 in past and future medical expenses, and
$250,000 in noneconomic damages.
       Because defendant forfeited any right he may have had to apportionment of
noneconomic damages under Proposition 51, the trial court‟s failure to issue a statement




                                                16
of decision setting forth the basis upon which it awarded emotional distress damages did
not, and could not, result in a miscarriage of justice.8
                                           III
    The Trial Court‟s Lost Income Calculation Must Be Reduced to Conform With The
                               Evidence Presented At Trial
       Defendant next contends the trial court‟s award for lost income must be reversed
because it is based on speculation and conjecture and unsupported by substantial
evidence. As we shall explain, $42,120 of the trial court‟s $44,800 lost income
calculation is supported by substantial evidence.
       At trial, plaintiff testified she was taken off work at various times from September
2005 until December 2007 due to her overwhelming anxiety and depression caused by
the sexual abuse inflicted upon her by defendant and her father. She was taken off work
by her primary care physician for six weeks during September and October 2005, and by
Dr. Wiggen from May 2006 until November 2006, and from March 2007 until December
2007. During those periods, plaintiff, who has a degree in business management, was
employed by Task Technologies as a technician for credit card equipment and was paid
“maybe $13.00, $12.00 an hour.” During his closing argument, plaintiff‟s trial counsel
asked the court to award plaintiff $44,800 in lost income. In doing so, he noted plaintiff
“testified as to her lost income, and it‟s more specifically detailed in the Trial Brief that
we prepared and submitted prior to trial.” That brief is not part of the record on appeal;
thus, whatever additional argument is contained therein is not before us on appeal. The
trial court awarded plaintiff $44,800 in lost income damages.
       On appeal, defendant argues plaintiff “could not say what her rate of pay was
when she took the leaves,” “could [not] state how long she was on leave,” and “offered




8 Because we conclude defendant forfeited this issue, we need not consider plaintiff‟s
claim that intentional tortfeasors are not entitled to apportionment under Proposition 51.

                                              17
no evidence of how many hours a week or month she was working when she took any
leave . . . .” Thus, according to defendant, “the trial court could only speculate on the
amount of [her] lost income.”
       “ „Where the fact of damages is certain, the amount of damages need not be
calculated with absolute certainty. [Citations.] The law requires only that some
reasonable basis of computation of damages be used, and the damages may be computed
even if the result reached is an approximation. [Citation.]‟ ” (Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 774-775.) Contrary to
defendant‟s assertion, evidence was presented that plaintiff was working at Task
Technologies during each of her three leaves of absence, and that she was paid
approximately $12 or $13 an hour. Plaintiff‟s failure to recall her exact rate of pay or the
precise dates of her absences did not preclude the court from calculating her lost income.
(See ibid.) Moreover, in the absence of evidence to the contrary, the trial court
reasonably could infer plaintiff was employed full-time. Thus, there is ample evidence to
support a finding plaintiff lost income in the amount of $42,120 (81 weeks of missed
work, multiplied by 40 hours per week, is 3,240 hours — 3,240 hours of missed work,
multiplied by $13 an hour is $42,120 of lost income).
       In an attempt to justify the additional $2,680 awarded by the trial court, plaintiff
argues there is substantial evidence from which the trial court could have concluded she
was entitled to “future wage loss for [plaintiff‟s] time spent in post trial psycho-therapy”
in the amount $2,704. (Italics added.) In support of her argument, she relies on Dr.
Wiggen‟s testimony that it would be in plaintiff‟s best interest to continue therapy on a
weekly basis for another year. From that testimony, plaintiff posits that if she attended
52 counseling appointments, “it would be reasonable for the court to conclude based on
experience that the appointments would occur during normal work hours and due to
travel time to and from the appointments would result in [plaintiff] missing a half day of
work to attend each appointment. At the rate of four hours lost per appointment,

                                             18
[plaintiff] would lose 208 hours of work,” which at a rate of $13 per hour, amounts to
$2,704 in future wages after trial.
       While plaintiff is entitled to recover loss of future income, such damages must be
sufficiently certain. (Civ. Code, § 3283; Boeken v. Philip Morris USA, Inc. (2010) 48
Cal.4th 788, 799.) Here, plaintiff presented no evidence she would be required to attend
counseling in the middle of the workday. And even assuming she would be required to
do so, she fails to point to any evidence that would support a finding she would be
required to miss four hours of work for each counseling appointment. Indeed, the
evidence presented suggests otherwise. At the time of trial, plaintiff was working in
Rocklin, hardly a remote location. Dr. Wiggen testified that a typical counseling session
lasts 50 to 60 minutes. On this record, there is no basis to conclude plaintiff would be
required to miss anything close to 208 hours of work to attend the additional 52 sessions
of counseling recommended by Dr. Wiggen.
       We need not consider plaintiff‟s assertion that the additional $2,680 may be
explained as prejudgment interest under either Civil Code sections 3287, subdivision (a)
or 3288, because there is no indication she ever moved for or requested the trial court to
include such interest as an element of damages in the first instance.
       Defendant does not assert he was prejudiced by the trial court‟s failure to issue a
statement of decision setting forth the basis upon which it awarded lost income, and we
are unable to discern how a statement of decision could have assisted defendant in
challenging the sufficiency of the evidence. Although defendant could have filed
objections thereto, objections are allowed only to correct omissions and ambiguities in
the statement of decision, not to reargue the evidence, as defendant seeks to do here.
(See Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292.) Defendant does note that “[i]t is
a mystery how the trial judge came up with [a] figure more than $3,000 higher . . . . [¶]
Of course, had the judge issued a statement of decision, this court could have some
insight into his calculations.” As set forth above, it is plaintiff, if anyone, who is

                                              19
prejudiced by the lack of a statement of decision on “how the trial judge came up with [a]
figure” that exceeds $42,120. Absent a showing defendant was prejudiced in pursuing
his appeal or that we are somehow hampered in our review of the same, the lack of a
statement of decision on the issue of lost income does not warrant remand.
                                           IV
     Defendant Is Entitled to a Setoff From Plaintiff‟s Award of Economic Damages
       Finally, defendant contends the trial court erred in failing to offset his parent‟s
pretrial settlement against plaintiff‟s special economic damage award pursuant to section
877. As we shall explain, the facts relevant to a determination of this issue are
undisputed, and the only issue that remains is whether section 877 applies, a legal issue
we must decide for ourselves. Accordingly, remand for the preparation of a statement of
decision is not required. Having considered the issue, we shall conclude section 877 does
apply, and the amount of special economic damages defendant must pay plaintiff must be
reduced from $55,096 to $4,752.
       We begin our analysis by addressing the timing of defendant‟s request that he
receive a setoff from plaintiff‟s award of economic damages. Although defendant failed
to raise this issue at trial, there is authority for allowing the issue of an offset to be raised
for the first time in objections to a proposed statement of decision. (Knox v. County of
Los Angeles (1980) 109 Cal.App.3d 825, 834-835 (Knox).) In Knox, the court reasoned
“[i]t was appropriate for [defendant] to defer this issue until the court had indicated that
[he was] to be found liable. There was no occasion to consider an offset until liability
was found; and there is ample precedent for deferring the offset issue until after the
determination of the merits.” (Id. at p. 834.)9 Had the trial court issued a statement of




9  The same cannot be said with respect to allocation of noneconomic damages under
Proposition 51, which is an affirmative defense and is inextricably intertwined with the
issue of defendant‟s own liability for plaintiff‟s injuries. (Ante, pp. 14-15.)

                                               20
decision in this case, defendant could have raised the issue of an offset in his objections
thereto. Nevertheless, we need not remand the matter for the preparation of a statement
of decision because there is no factual dispute for the trial court to resolve. (See
Enterprise Ins. Co. v. Mulleague (1987) 196 Cal.App.3d 528, 540 [“if there is no factual
dispute, there is nothing to inform the appellate court about except the law and on
questions of law the reviewing court must decipher the law for itself”].) As set forth
above, plaintiff concedes she was paid $275,000 in settlement of her claims against
defendant‟s parents. The only remaining issue is whether section 877 applies -- a legal
issue we must decide for ourselves. (Enterprise Ins. Co. v. Mulleague, supra, at p. 540.)
       Turning to the merits, plaintiff sued defendant for sexual battery, and defendant‟s
parents for negligence. Plaintiff claimed defendant‟s parents failed to reasonably care
for, supervise, direct, oversee, and protect her from the harm inflicted upon her by
defendant. Prior to trial, plaintiff settled with defendant‟s parents for $275,000 in
exchange for a general release.
       Section 877 mandates, “Where a release, dismissal with or without prejudice, or a
covenant not to sue or not to enforce 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, . . . 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. [¶] (b) It shall
discharge the party to whom it is given from all liability for any contribution to any other
parties. . . .” (Italics added.) Because, as discussed above, noneconomic damages are no
longer joint obligations after Proposition 51, the setoff contemplated under section 877
applies only to economic damages. (Espinoza v. Machonga (1992) 9 Cal.App.4th 268,
272.) In addition, “a nonsettling defendant [is] entitled to a setoff from plaintiff‟s award
of economic damages in the amount of settlements paid prior to trial by other defendants,

                                               21
despite the jury’s finding that the settling defendants had no fault for plaintiff's injuries.”
(Poire v. C.L. Peck/Jones Brothers Construction Corp. (1995) 39 Cal.App.4th 1832,
1837 (Poire), italics added.) “This satisfies the fundamental goals of section 877, to
preclude a double recovery arising out of the same wrong and encourage settlements.”
(McComber v. Wells (1999) 72 Cal.App.4th 512, 516-517.) As we observed in Reed v.
Wilson (1999) 73 Cal.App.4th 439, 444, “the offset provided for in section 877 assures
that a plaintiff will not be enriched unjustly by a double recovery, collecting part of his
total claim from one joint tortfeasor and all of his claim from another.”
       Plaintiff argues section 877 is inapplicable here because defendant and his parents
were not “claimed to be liable for the same tort,” as required by section 877. Plaintiff
observes, “The judgment against [defendant] was for his multiple intentional torts by way
of his sexual assaults against [plaintiff], not for negligence as was claimed against his
parents . . . .” Plaintiff misapprehends the meaning of the phrase “the same tort” as used
in section 877. Separate causes of action are not necessarily separate torts. “[T]he key is
that the tortious acts of the codefendants operate to produce a singular injury, irrespective
of the legal theories on which the plaintiff bases his or her claims in framing the
complaint.” (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1361.) Here, plaintiff
claimed defendant and his parents were liable for the same injuries. That is sufficient for
purposes of section 877. (Oliveira v. Kiesler, supra, at p. 1361.)
       Plaintiff also asserts the application of section 877 conflicts with section 875,
subdivision (d), which provides, “There shall be no right of contribution in favor of any
tortfeasor who has intentionally injured the injured person.” The court in Wouldridge v.
Zimmerman (1971) 21 Cal.App.3d 656, 658-659 persuasively rejected this argument,
explaining: “Sections 877 and 875 were adopted at the same time (Stats. 1957, ch. 1700)
and as part of a comprehensive statutory plan. Thus there is even more reason than in the
usual situation to seek a construction which will reconcile the several provisions, and
avoid a conflict obviously not intended by the Legislature. [¶] It is only in a strained

                                              22
sense that the pro tanto reduction approximates contribution. The purpose of the rule
requiring such reduction is to avoid the double recovery and unjust enrichment which a
plaintiff would enjoy if he were able to collect part of his total claim from one, and all
from another [citations]. [¶] Nor is there true conflict between sections 875 and 877.
The former is designed only to establish a right of contribution among joint tortfeasors
equally liable to a plaintiff. It abrogates the common law rule and recognizes equitable
considerations to be applied only among joint tortfeasors themselves. Section 877, on the
other hand, considers only the right of the plaintiff against the several tortfeasors. „The
“equities” . . . considered [by section 875] are those of the wrongdoers among
themselves . . . .‟ ” Moreover, by its terms, section 875 applies only to contributions
among joint tortfeasors after a judgment has been satisfied. (Wouldridge v. Zimmerman,
supra, at p. 659.) It has no application to setoff rights arising from the pretrial settlement
in the instant case. (Ibid.)
        Accordingly, we apply the well-established formula for calculating the offset
developed by the court in Espinoza v. Machonga, supra, 9 Cal.App.4th at page 277. The
portion of the settlement which may be setoff from a judgment of economic damages is
determined by application of the percentage of the economic damages award in
relationship to the total award of damages. (Ibid.) Here, plaintiff is entitled to $52,416
for economic damages ($42,120 for lost wages, plus $10,296 for past and future medical
expenses) which equals 17.332416 percent of the total $302,416 modified award.10
Defendant is entitled to offset 17.332416 percent of the $275,000 pretrial settlement.
This equals $47,664. Consequently, the judgment must be modified to reflect the
$47,664 offset, which reduces the total economic damage award to $4,752.




10   These figures reflect the reduction in lost income previously discussed.

                                              23
       Plaintiff suggests reducing defendant‟s liability for plaintiff‟s economic damages
to $4,752 “smacks of inequity.” Unlike Proposition 51, however, section 877 is not
concerned with limiting a defendant‟s liability in direct proportion to his percentage of
fault. Rather, liability is joint and several. Thus, the fact that defendant‟s proportionate
share of responsibility for the economic damages may be far less than his proportionate
share of responsibility for plaintiff‟s injuries is irrelevant. (See Poire, supra, 39
Cal.App.4th at pp. 1837-1840 [holding nonsettling defendant entitled to a setoff from
plaintiff‟s award of economic damages despite jury‟s finding settling defendants had no
fault for plaintiff‟s injuries]; see also McComber v. Wells, supra, 72 Cal.App.4th at
pp. 516-517 [holding jury‟s finding settling defendants not negligent irrelevant for
purposes of section 877 setoff and affirming setoff reducing plaintiff‟s economic damage
award to zero].)
                                       DISPOSITION
       The judgment against defendant is modified to reflect the total award of special
economic damages (lost income, plus past and future medical expenses) is $4,752 and the
total judgment is $254,752. The amount of general noneconomic damages remains the
same. Each party shall bear their own costs.



                                              BLEASE                     , Acting P. J.


I concur:


            HOCH                    , J.




                                              24
25
Robie, J. concurring


       I fully concur in this opinion. I write separately because I recently also concurred
in Wallis v. PHL Associates, Inc. (2013) 220 Cal.App.4th. 814 in which the court
reversed for failure to issue a statement of decision. Wallis relied on Miramar Hotel
Corp. v. Frank. B. Hall & Co. (1985) 163 Cal.App.3d 1126. In Wallis the parties did not
raise the applicability of the provision of our Constitution (Cal. Const., art VI, § 13) or
Code of Civil Procedure section 475. Nor apparently did the parties in the many cases
following Miramar as the instant opinion notes. Since the issue was not raised in Wallis,
whether a miscarriage of justice existed in that case was not decided. The lesson I have
learned is that per se rules should be looked upon critically, as stated by Presiding Justice
Spencer in Miramar. (Miramar Hotel Corp. v. Frank. B. Hall & Co., supra, 163
Cal.App.3d at pp. 1130-1131.)




                                                         ROBIE                  , J.




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