Filed 4/6/15 Montoya v. Mayfield CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR



OFELIA MONTOYA,                                                      B255995

            Plaintiff and Respondent,                                (Los Angeles County
                                                                     Super. Ct. No. PC052062)
                          v.

ADOLPHUS MAYFIELD et al.,

                     Defendants and Appellants.




         APPEAL from an order of the Superior Court of Los Angeles Country, Craig D.
Karlan, Judge. Affirmed.
         Harrington, Foxx, Dubrow & Canter, Edward R. Leonard and Daniel E. Kenney,
for Defendants and Appellants.
         Ardalan & Associates, P. Christopher Ardalan and Mark K. Drew, for Plaintiff and
Respondent.




                                    ______________________________
       Appellants Adolphus Mayfield (Mayfield) and Central Transport, Inc., appeal
from an order granting respondent Ofelia Montoya’s motion for prejudgment interest
pursuant to Civil Code section 3291 and denying appellants’ motion to strike
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respondent’s expert witness fees pursuant to Code of Civil Procedure section 998.
Finding no error, we affirm the order.
                    FACTUAL AND PROCEDURAL SUMMARY
       In December 2010, Monica Porras and Karla Hernandez were involved in a
vehicle collision with a truck that caused Porras’s death and left Hernandez seriously
injured. The truck driver, appellant Mayfield, was employed by appellant Central
Transport, Inc. (Central) and was acting within the course and scope of his employment
at the time of the collision. Mayfield’s truck was owned by GLS Leaseco, Inc. (GLS),
which is not a party to this appeal.
       Hernandez and Montoya, as heir and successor in interest to Porras, filed a
complaint against appellants and GLS (collectively defendants). On August 2, 2011,
Hernandez and Montoya (collectively plaintiffs) filed an offer to compromise pursuant to
section 998 in the sum of $1,000,000. The offer was rejected. Prior to trial, plaintiffs
dismissed GLS. The trial commenced, and the jury returned a verdict in favor of
plaintiffs. The jury attributed 50 percent of the fault to Porras, resulting in a net recovery
of $294,767.65 for Hernandez and $1,082,200 for Montoya.
       After the verdict, defendants moved to strike plaintiffs’ claimed expert costs by
arguing that the section 998 offer was “fatally deficient.” Plaintiffs opposed the motion
and sought prejudgment interest pursuant to Civil Code section 3291. The trial court
                                                                                            2
granted expert witness fees and prejudgment interest as to Montoya, but not Hernandez.
       Appellants appeal the trial court’s order granting expert witness fees and



1
      Subsequent statutory references are to the Code of Civil Procedure, unless
otherwise stated.
2
       Appellants do not challenge the amount of expert witness fees awarded.
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prejudgment interest to respondent Montoya.
                                       DISCUSSION
                                               I
       Pursuant to section 998, “[n]ot less than 10 days prior to commencement of
trial . . . , any party may serve an offer in writing upon any other party to the action to
allow judgment to be taken or an award to be entered in accordance with the terms and
conditions stated at that time.” (§ 998, subd. (b).) If the offer is not accepted in a timely
manner, it is deemed withdrawn. (Id. at subd. (b)(2).)
       “[T]he failure to accept a section 998 offer can have consequences.” (McDaniel v.
Asuncion (2013) 214 Cal.App.4th 1201, 1205.) If a section 998 offer made by plaintiff is
not accepted and the defendant does not obtain a more favorable judgment at trial,
defendant may be required to “pay a reasonable sum to cover postoffer costs of the
services of expert witnesses . . . .” (§ 998, subd. (d).) The plaintiff also may seek
prejudgment interest “at the legal rate of 10 percent per annum calculated from the date
of the plaintiff’s first offer pursuant to Section 998 of the Code of Civil Procedure which
is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment.”
(Civ. Code, § 3291.) Where the facts are undisputed, we review de novo a trial court’s
award of expert witness fees under section 998 and prejudgment interest under Civil
Code section 3291. (Burch v. Children’s Hospital of Orange County Thrift Stores, Inc.
(2003) 109 Cal.App.4th 537, 543 (Burch).)
                                              II
       Appellants challenge the validity of plaintiffs’ section 998 offer on grounds that
(1) it was made jointly by plaintiffs, and (2) it was unapportioned as to the three
defendants. We address each argument in turn.
       A.     Offer Made Jointly by Plaintiffs
       Appellants argue plaintiffs’ section 998 offer was deficient because it was made
jointly by plaintiffs, without offering defendants a chance to settle with one plaintiff but
3
      Hernandez has not appealed the trial court’s denial of expert witness fees and
prejudgment interest.
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not the other.
          Generally, a joint offer by plaintiffs is invalid because it is not possible to
determine, after trial, “whether the individual plaintiffs received more than they would
have received had the offer to compromise been accepted.” (Fortman v. Hemco, Inc.
(1989) 211 Cal.App.3d 241, 263.) However, an exception exists when it is “absolutely
clear” that a plaintiff “received a greater amount in damages after trial than she would
have received had [defendants] accepted the joint offer even if the entire amount of the
offer . . . is attributed to her.” (Ibid. [prejudgment interest]; see Winston Square
Homeowner’s Assn. v. Centex West, Inc. (1989) 213 Cal.App.3d 282, 294 [expert witness
fees].)
          Plaintiffs made an unallocated, joint offer of $1,000,000 to settle the case with
defendants. Montoya’s damages after jury trial amounted to $1,082,200, a more
favorable judgment than she would have received even if the entire $1,000,000 settlement
was attributed to her. The fact that plaintiffs jointly made their section 998 offer does not
invalidate the offer.
          B.     Offer Unapportioned as to Defendants
          Appellants also argue that the section 998 offer was invalid because it was
unapportioned as to the three defendants. Specifically, they contend that inclusion of
GLS in the section 998 offer invalidated the offer because 1) GLS faced only limited
liability under Vehicle Code section 17151, and 2) at the time of the offer, GLS
potentially faced liability based on other theories of negligence not applicable to
appellants. We disagree.
          “In general, ‘a section 998 offer made to multiple parties is valid only if it is
expressly apportioned among them and not conditioned on acceptance by all of them.
[Citations.]’” (Burch, supra, 109 Cal.App.4th at p. 544.) This rule exists because an
unapportioned offer to multiple defendants “requires any defendant who wants to accept
[the offer] to obtain the concurrence of his or her codefendants,” “plac[ing] a reasonable
defendant at the mercy of codefendants whose refusal to settle may be unreasonable.”
(Taing v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 584 (Taing).) Moreover, if

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defendants are served with an unapportioned section 998 offer, “‘there is no way to
determine whether a subsequent judgment against a particular nonsettling defendant is
“more favorable” than the offer.’ [Citation.]” (Burch, supra, at p. 547.) This rule does
not apply, however, when the defendants are joint tortfeasors having joint and several
liability because “if they [are] liable at all, they are jointly and severally liable.”
(Steinfeld v. Foote-Goldman Proctologic Medical Group, Inc. (1996) 50 Cal.App.4th
1542, 1549 (Steinfeld).)
               1.     Vehicle Code Sections 17151 and 17153
       Appellants contend that, since GLS’s liability was statutorily limited to $30,000
                                                                        4
per occurrence under Vehicle Code section 17151, subdivision (a), its exposure was
different from that of appellants, who were jointly and severally liable for the entire
judgment.
       We evaluate the validity of plaintiffs’ section 998 offer based on the circumstances
that existed when the offer was made, not as of the date of judgment. (Burch, supra,
109 Cal.App.4th at pp. 547-548.) At the time the offer was made, GLS remained a
defendant in the case but, unlike appellants, its statutory liability was limited to $30,000
per occurrence under Vehicle Code section 17151. In a factually similar situation, Burch
held that inclusion of the vehicle owner in Burch’s section 998 offer invalidated the offer
because the owner “would not have been found jointly and severally liable with the other
defendants for the full amount of Burch’s damages.” (Burch, at p. 550, italics added.)
Because the liability of the vehicle owner in Burch was statutorily limited, it faced
varying liability from the other defendants and the section 998 offer was found invalid.
       Although the reasoning in Burch is relevant to our analysis, respondent raises a
4
        Vehicle Code section 17151, subdivision (a) states: “The liability of an owner,
bailee of an owner, or personal representative of a decedent imposed by this chapter and
not arising through the relationship of principal and agent or master and servant is limited
to the amount of fifteen thousand dollars ($15,000) for the death of or injury to one
person in any one accident and, subject to the limit as to one person, is limited to the
amount of thirty thousand dollars ($30,000) for the death of or injury to more than one
person in any one accident and is limited to the amount of five thousand dollars ($5,000)
for damage to property of others in any one accident.”
                                                5
dispositive argument not considered in that case. Vehicle Code section 17153 provides,
“If there is recovery under this chapter against an owner . . . , the owner . . . is subrogated
to all the rights of the person injured . . . and may recover from the operator the total
amount of any judgment and costs recovered against” it. Vehicle owners joined as
defendants under this provision face only “secondary” liability because theirs is “not due
to active or passive participation in the negligence alleged by the plaintiff[s] in the
complaint.” (Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847, 1852 (Rashtian).)
The practical consequence of this provision is that when there is a settlement for a sum
“equal to, or in excess of the amount of the owner’s statutory liability, the owner’s
obligation is discharged.” (Id. at p. 1853; see also Flores v. Enterprise Rent-a-Car Co.
(2010) 188 Cal.App.4th 1055, 1072 (Flores).)
       GLS was merely a “guarantor” (Rashtian, supra, 9 Cal.App.4th at p. 1853, italics
omitted), joined as a defendant to ensure plaintiffs would recover some amount in case it
was impossible to collect damages from appellants. (See Burton v. Gardner Motors, Inc.
(1981) 117 Cal.App.3d 426, 430.) Under Rashtian and Flores, GLS would have been
discharged from the case had defendants accepted plaintiffs’ section 998 offer, leaving
appellants jointly and severally liable for the entire settlement amount.
       As we have stated, the general rule favoring apportionment exists to protect
reasonable defendants from the actions of unreasonable codefendants who refuse to settle
(Taing, supra, 9 Cal.App.4th at p. 584), and to ensure defendants are able to assess
whether plaintiff’s recovery at trial was “more favorable” than the settlement offer.
(Burch, supra, 109 Cal.App.4th at p. 545.) Neither is applicable here. There were no
conflicting interests between defendants that potentially prevented acceptance of the
settlement offer. Appellants contend GLS would not agree to settlement terms that would
make it jointly and severally liable for $1,000,000. This is a misstatement of the law;
GLS had no reason to prevent acceptance of plaintiffs’ offer because, upon acceptance, it
would have been entitled to be discharged from the case, and defendants would have
been readily able to determine whether a subsequent judgment at trial was more favorable
than the offer. Even if GLS remained in the case and suffered a judgment against it, it

                                               6
would have been entitled to recover from appellants “the total amount of any judgment
and costs recovered against” it (Veh. Code, § 17153), making appellants jointly and
severally liable for the entire judgment. The inclusion of GLS in plaintiffs’ section 998
offer did not render it invalid.
              2.      Alternate Theories of Liability for GLS
       Appellants also argue that GLS could have been liable under alternate theories of
negligence unrelated to Mayfield’s negligent driving, resulting in varying theories of
liability among the defendants served with the section 998 offer. In addition to holding
that the vehicle owner was in a different position due to the statutory limit on its liability,
the Burch court observed that “[b]ased on the allegations of the complaint, the trier of
fact also could have determined [the truck owner’s] culpability was limited to negligent
maintenance of the truck that hit Burch’s vehicle.” (Burch, supra, 109 Cal.App.4th at
p. 550.) It pointed to allegations in Burch’s complaint that stated defendants “‘so
negligently . . . drove, maintained, operated, entrusted, and controlled their said vehicle
so as to cause it to collide with and crash into the vehicle driven by plaintiff.’” (Id. at
pp. 549-550, italics added.) Because Burch had included an allegation of negligent
maintenance, directed solely at the vehicle owner, the defendants in Burch faced varying
liability at the time her section 998 offer was made. “Such a scenario [gave] rise to
comparative negligence liability and trigger[ed] Proposition 51,” whereby a defendant’s
liability for noneconomic damages based on principles of comparative fault are
considered several, but not joint. (Id. at p. 550; Civ. Code, § 1431.2, subd. (a).)
       This case is distinguishable. Unlike the complaint in Burch, plaintiffs’ complaint
does not allege multiple theories of negligence. Instead, it alleged a “single act of
negligence” causing a “single injury.” (Steinfeld, supra, 50 Cal.App.4th at p. 1549.)
                                           5
Plaintiffs’ section 998 offer was valid.


5
       The trial court gave weight to the fact that defendants were represented by the
same law firm and shared the same insurance policy. Appellants argue this point is
irrelevant, and we agree. However, we need not address this issue as it does not affect
the disposition of the case.
                                               7
                                   DISPOSITION
     The order is affirmed. Respondent is entitled to her costs on appeal.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                            EPSTEIN, P. J.


We concur:




MANELLA, J.




COLLINS, J.




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