 

Filed 1/30/14 Tinoco v. Garcia CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT
 

VIRGINIA TINOCO et al.,
                                                                                           F063076
         Plaintiffs and Appellants,
                                                                              (Super. Ct. No. CV266667)
         v.
EDUARDO GARCIA et al.,                                                                   OPINION
         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Kern County. William D.
Palmer, Judge.
         Rodriguez & Associates, Daniel Rodriguez, Joel T. Andreesen, Charles R.
Chapman; Blanco Law Firm, Alejandro D. Blanco; Esner, Chang & Boyer, Stuart B.
Esner and Andrew N. Chang for Plaintiffs and Appellants.
         Horvitz & Levy, Jason R. Litt, Mark A. Kressel; Robinson & Kellar, Michael
Charles Kellar; Jacobson, Hansen, Najarian & McQuillan and Roger K. Stewart for
Defendants and Respondents.
                                                        -ooOoo-
         Plaintiffs appeal from the judgment entered in their favor in this wrongful death
action, asserting the damages awarded were inadequate as a matter of law. We conclude
that the failure to award any damages for the noneconomic loss of two of the daughters


 
 


rendered the lump-sum damages award inadequate as a matter of law. Accordingly, we
reverse and remand for a retrial of the issue of damages only.
                   FACTUAL AND PROCEDURAL BACKGROUND
        Plaintiffs’ decedent was killed while performing work for defendants, his special
employers. He apparently attempted to jump start a tractor while the tractor was in gear.
When it started, it moved forward, pinning decedent between the tractor and the pickup
truck with which he used to jump start.
        Plaintiffs are the widow and four daughters of decedent; they sued defendants for
wrongful death. The widow, Virginia, and the two daughters who were minors at the
time of trial, were represented by their counsel; the two daughters who were adults at the
time of trial, Yesenia and Claudia, were represented by separate counsel. The jury found
defendants liable for decedent’s death, but found decedent was comparatively negligent.
It apportioned liability 50 percent to decedent and 50 percent to defendants. The special
verdict set the total amount of plaintiffs’ damages at $677,497; the jury assigned the
widow and minor daughters $33,000 for past economic loss, $344,497 for future
economic loss, and $300,000 for noneconomic loss; it assigned nothing to the adult
daughters for their noneconomic loss (the only loss they claimed). Plaintiffs appeal,
asserting the damages are inadequate as a matter of law, in light of the evidence presented
at trial.
                                       DISCUSSION
I.      Standard of Review
        The amount of damages to be awarded is a question of fact for the trier of fact; the
award will not be disturbed on appeal if it is supported by substantial evidence. (Toscano
v. Greene Music (2004) 124 Cal.App.4th 685, 691 (Toscano).) We must “review the
entire record to determine whether substantial evidence supports the appealed
judgment.” (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 581.)

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“An appellate court does not reweigh the evidence or evaluate the credibility of
witnesses, but rather defers to the trier of fact.” (Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 958.) “‘An appellate court may interfere with [the]
determination [of damages] only where the sum awarded is so disproportionate to the
evidence as to suggest that the verdict was the result of passion, prejudice or corruption
[citations] or where the award is so out of proportion to the evidence that it shocks the
conscience of the appellate court. [Citations.]’” (Johnson v. Stanhiser (1999) 72
Cal.App.4th 357, 361.) “The evidence is insufficient to support a damage award only
when no reasonable interpretation of the record supports the figure.” (Toscano, supra, at
p. 691.)
II.    Wrongful Death Action
       In an action for the death of a person caused by the wrongful act or neglect of
another, “damages may be awarded that, under all the circumstances of the case, may be
just.” (Code Civ. Proc., § 377.61; see also § 377.60.) The damages in a wrongful death
action may include compensation for the financial benefits plaintiffs were receiving from
the decedent at the time of death and those reasonably to be expected in the future, such
as loss of earning capacity or loss of household services. (Corder v. Corder (2007) 41
Cal.4th 644, 661 (Corder); DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1239
(DiRosario).) Plaintiffs may also recover compensation for their loss of the comfort,
society and protection of the decedent. (DiRosario, at p. 1239.)
       Plaintiffs in a wrongful death action need not have been financially dependent
upon the decedent in order to recover for the decedent’s death. (DiRosario, supra, 196
Cal.App.3d at pp. 1239–1240.) Adult children of a decedent or parents of a minor
decedent may recover damages for the loss of the decedent’s love, affection, care,
attention, companionship, comfort, and protection. (Ibid.; Krouse v. Graham (1977) 19
Cal.3d 59, 67–69 (Krouse).)

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       Wrongful death actions are statutory, governed by Code of Civil Procedure
sections 377.60 through 377.62. “While each heir designated in section 377.60 has a
personal and separate wrongful death cause of action, the actions are deemed joint, single
and indivisible and must be joined together in one suit. [Citation.] Accordingly, ‘the
court or jury must compute the damages, if any, by considering the pecuniary damage
suffered by all the heirs and return a verdict for one sum.’ [Citations.] In view of the
lump-sum nature of wrongful death awards, section 377.61 provides: ‘The court shall
determine the respective rights in an award of the persons entitled to assert the cause of
action.’” (Corder, supra, 41 Cal.4th at p. 652, fn. omitted.) Thus, after the jury
determines the total sum to be awarded as damages for the loss sustained by all plaintiffs,
the trial court must apportion that sum among the various plaintiffs.
       In this case, the jury made its decision by special verdict. The special verdict
form, after presenting questions regarding liability, asked the jury to state “plaintiffs’
total damages for the wrongful death of” decedent. The jury set the amount at $677,497.
The verdict form then asked the jury to set out amounts for past economic loss, future
economic loss, and noneconomic loss for the widow and minor daughters collectively;
the jury filled in amounts totaling $677,497. Finally, the jury was asked to set out
separately an amount for Yesenia’s noneconomic loss, followed by an amount for
Claudia’s noneconomic loss. For both Yesenia and Claudia, the jury indicated $0.
       Plaintiffs contend that, because the jury awarded no damages to Yesenia and
Claudia, although the uncontradicted evidence indicated they lost their father’s love,
companionship, comfort, and protection, the award of damages was inadequate as a
matter of law. Defendants disagree, contending the jury made its total award of damages,
as required, and merely recommended the distribution among the plaintiffs that it thought
should be made. The final apportionment was for the trial court to make, on request of
the plaintiffs, but such a request was not made. Defendants assert plaintiffs pursued the

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wrong remedy by seeking a new trial and appealing the judgment, because Yesenia and
Claudia have no separate claim for damages; their proper remedy was to ask the trial
court to assign a portion of the total damage award to them. We find plaintiffs’ position
has merit.
       In Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512 (Canavin),
while recognizing that a wrongful death cause of action is joint, single, and indivisible,
the court nevertheless recommended that “trial courts require juries to answer special
interrogatories stating the amounts they include to compensate each individual claimant,
to assist in final apportionment of the award.” (Id. at pp. 518, 529–530.) The court
opined in dicta that plaintiffs, if properly represented by counsel, could waive
apportionment by the court, in which case “the trial court should instruct the jury to
return separate verdicts.” (Id. at p. 536.) “[W]e find no reason why, when all properly
represented plaintiffs request, the trial court in a wrongful death action should not instruct
the jury to return special findings regarding damages as to each heir where the evidence
presented permits such findings.… Although the findings would normally be advisory to
the trial court at a later apportionment proceeding, valid stipulations by all parties should
make them binding.… Special findings would promote the allocation of the total award
in a manner consistent with the jury’s intent as to those issues of fact before them
regarding the heirs’ respective interests in that portion of the lump-sum award relating to
the loss of nonmonetary support in accordance with an approved general practice in this
state [citations].” (Id. at pp. 536–537.)
       In this case, the special verdict required the jury to first award damages in a total
amount, then set out an allocation to the widow and minor children, and to the two adult
daughters. The parties did not stipulate that the apportionment indicated by the jury
would be binding. Consequently, as defendants assert, if plaintiffs had sought a different
allocation, they could have requested that the trial court determine the proper

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apportionment of the award. Plaintiffs, however, did not merely challenge the allocation
of the award among the plaintiffs; they challenged the failure of the jury to include an
award of noneconomic damages for Yesenia’s and Claudia’s loss in the total award of
damages.
       Yesenia and Claudia did not seek recovery of economic damages; the economic
damages were awarded to the widow and minor daughters only, based on evidence of
decedent’s lost earning capacity and the value of his household services. All plaintiffs
sought noneconomic damages; each plaintiff testified about her relationship with
decedent. The evidence generally showed decedent to be a loving, supportive husband
and father. There was no evidence of any estrangement, neglect, or negative feelings
between decedent and any of the plaintiffs.
       In a wrongful death action, an adult child may recover for loss of the comfort,
society, and protection of the deceased parent. (Krouse, supra, 19 Cal.3d at p. 68.) “The
services of children, elderly parents, or nonworking spouses often do not result in
measurable net income to the family unit, yet unquestionably the death of such a person
represents a substantial ‘injury’ to the family for which just compensation should be
paid.” (Ibid.) The value of the loss “may be considerable in cases where, for instance,
the decedent had demonstrated a ‘kindly demeanor’ toward the statutory beneficiary and
rendered assistance or ‘kindly offices’ to that person. [Citation.]” (Corder, supra, 41
Cal.4th at pp. 661–662.) Even where the adult child is not financially supported by the
parent, the loss of comfort, society, and protection “has an actual value and cannot be
compensated by nominal damages.” (Duclos v. Tashjian (1939) 32 Cal.App.2d 444, 453
(Duclos); Griott v. Gamblin (1961) 194 Cal.App.2d 577, 579.)
       Evidence that supports an award for loss of the comfort, society, and protection of
the decedent includes evidence of “the closeness of the family unit [citation], the warmth
of feeling between family members [citation], and the character of the deceased as ‘kind

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and attentive’ or ‘kind and loving’ [citation].” (Krouse, supra, 19 Cal.3d at p. 68.)
Where “there was no showing that the cordial and affectionate relationship usually
existing between parent and child did not exist as to” the adult children, “[l]oss of
comfort, protection and society is a proper element of injury and is by no means to be
classed as compensable by merely nominal damages.” (Gilmore v. Los Angeles Railway
Corp. (1930) 211 Cal. 192, 200 (Gilmore).)
       Claudia was a few days short of 18 years old when her father died; she had
graduated from high school, but was still living at home with her parents. She continued
to live at home with her mother at the time of trial. Yesenia was almost 20, married, with
a child at the time of her father’s death. Both daughters testified decedent was supportive
and loving, advised them, played games with them, tried to help them with their
homework, protected them, and taught them life lessons. He encouraged them to stay in
school and, when they contemplated quitting high school, he took each of them to work
with him, to demonstrate the difficulty of working in the fields. They both learned their
lesson and completed high school. Claudia testified decedent wanted her to make
something of her life, and said he would help support her as long as she continued school.
At the time of trial, she was attending school to become a medical assistant and had
ambitions of becoming a nurse.
       “Although recovery under [Code of Civil Procedure] section 377 is in the form of
a ‘lump sum,’ the amount is determined in accordance with the various heirs’ separate
interests in the deceased’s life and the loss suffered by each by reason of the death ….”
(Cross v. Pacific Gas & Electric Co. (1964) 60 Cal.2d 690, 692.) Thus, the damage
suffered by each heir is included in the aggregate sum awarded in the jury’s verdict.
(Canavin, supra, 148 Cal.App.3d at p. 530.) In this case, the aggregate award should
have included damages for Yesenia’s and Claudia’s loss of the comfort, society, and
protection of decedent. There was ample evidence of decedent’s participation in his

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daughters’ lives; there was no evidence that the relationship of Yesenia and Claudia to
decedent was anything other than “the cordial and affectionate relationship usually
existing between parent and child.” (Gilmore, supra, 211 Cal. at p. 200.)
       With regard to damages, the jury was instructed to decide how much money would
reasonably compensate plaintiffs for the death of decedent. The trial court instructed that
plaintiffs claimed “the following noneconomic damages: [¶] 1. The loss of Javier
Tinoco’s love, companionship, comfort, care, assistance, protection, affection, society,
moral support; and [¶] 2. The loss of Javier Tinoco’s training and guidance.” It further
instructed:

             “Now, no fixed standard exists for deciding the amount of
       noneconomic damages. You must use your judgment to decide a
       reasonable amount based on the evidence and your common sense.

              “For noneconomic damages, determine the amount in current dollars
       paid at the time of judgment that will compensate Virginia Tinoco, Yesenia
       Vasquez, Claudia Tinoco, Erica Tinoco, and Guadalupe Tinoco, for those
       damages.”
       The jury was instructed not to consider plaintiffs’ grief, sorrow, or mental anguish,
decedent’s pain and suffering, or plaintiffs’ poverty or wealth in making its award.
       Question No. 9 of the special verdict form sought the jury’s determination of
damages; it asked: “What are plaintiffs’ total damages for the wrongful death of Javier
Tinoco?” Subsection (a) of that question asked for Virginia’s, Erica’s, and Guadalupe’s
damages collectively, with spaces for past economic loss, future economic loss, and
noneconomic loss of love, companionship, comfort, care, assistance, protection,
affection, society, and moral support. Subsection (b) asked for Yesenia’s wrongful death
damages, with a space for noneconomic loss of love, companionship, comfort, care,
assistance, protection, affection, society, and moral support. Subsection (c) of question
No. 9 asked for Claudia’s wrongful death damages, with a space for noneconomic loss of


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love, companionship, comfort, care, assistance, protection, affection, society, and moral
support.
       The jury was not instructed to determine total damages, and then recommend to
the trial court how those damages should be distributed among plaintiffs. The jury was
simply instructed to determine the amount that would compensate plaintiffs for the death
of decedent, and then was asked in the special verdict form to set out amounts for
Virginia and the minor daughters together, and Yesenia and Claudia separately. The only
reasonable interpretation of the verdict form is that it reflects the amounts the jury found
would compensate the particular plaintiffs for their losses, and the jury did not award any
damages for Yesenia’s or Claudia’s loss of comfort, society, and protection. Although
the wrongful death statutes give the heirs a single joint cause of action and the verdict
should be for a single lump sum, “this is no reason why we may not look to the jurors’
answers to the special interrogatories in order to determine how they arrived at [the]
total” amount of damages. (Griffey v. Pacific Electric Railway Co. (1922) 58 Cal.App.
509, 515 (Griffey).) Here, the jurors’ answers to the questions in the special verdict form
indicate they awarded nothing for Yesenia’s and Claudia’s noneconomic damages. No
reasonable interpretation of the record supports the complete denial of compensation for
their loss of their father’s love, companionship, comfort, care, assistance, protection,
affection, society, and moral support. Consequently, substantial evidence does not
support a damage award that excludes such compensation entirely.
       The lack of support for an award of no damages to Yesenia and Claudia is also
demonstrated by the sizeable award of such damages made to the widow and younger
daughters. The evidence showed a loving family relationship. Decedent spent time with,
and cared for, his wife and daughters; he shared their important moments, including
graduations and the birth of his grandchild. The evidence was similar for all the
daughters: they enjoyed the love, companionship, and protection of their father. At the

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time of trial, Claudia, like her younger sisters, still lived in the family home. Even
though Yesenia had married and moved from the family home, she testified she saw her
father every weekend in the six months before his death, with the exception of one month
when she lived in Twentynine Palms. While there was ample evidence of a loving
relationship between all the daughters and decedent, sufficient to establish the basis for
an award of noneconomic damages, the jury awarded none to Yesenia and Claudia.
       Although the appellate court will generally defer to the jury’s finding as to the
amount of damages, and to the trial court’s ruling on a motion for new trial because of its
greater familiarity with the case, the appellate court may step in and reverse a judgment
“where the amount of the award of general damages is so disproportionate to the injuries
suffered that the result reached may be said to shock the conscience.” (DiRosario, supra,
196 Cal.App.3d at p. 1241; Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614–615.) The
cases recognize that the loss of comfort, society and protection of the decedent is not
compensable with merely nominal damages; an award of no damages for Yesenia’s and
Claudia’s loss is so disproportionate to the injuries suffered as to shock the conscience
and is grossly inadequate to compensate them for that loss.
       Defendants are correct that adult children of a wrongful death decedent are not
automatically entitled to damages, or to some minimum amount of damages, for their loss
of comfort, society, and protection. Nonetheless, an adult child who proves he or she has
suffered a loss of comfort, society, and protection is entitled to damages for that loss.
(Duclos, supra, 32 Cal.App.2d at p. 453.) The evidence demonstrated all the family
members suffered such a loss, yet the jury recognized and awarded damages only to
Virginia, Erica, and Guadalupe. As a result of the jury’s failure to include in the lump-
sum award of damages any damages for the noneconomic loss sustained by Yesenia and
Claudia, we conclude the entire lump-sum award is inadequate as a matter of law, and we
must reverse the judgment and remand for a new trial on the issue of damages. (See

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Griffey, supra, 58 Cal.App. at p. 523, concluding that a wrongful death “verdict should be
set aside and a new trial granted whenever it can be seen from answers to special
interrogatories that the jury has made an excessive award of damages in their assessment
of the loss sustained by any one or more of the statutory beneficiaries.”)
       “It is a firmly established principle of law that ‘[t]he appellate courts have power
to order a retrial on a limited issue, if that issue can be separately tried without such
confusion or uncertainty as would amount to a denial of a fair trial.’ [Citation.] The
underlying rationale is easy to discern: to require a complete retrial when an issue could
be separately tried without prejudice to the litigants would unnecessarily add to the
burden of already overcrowded court calendars and could be unduly harsh on the parties.
[Citation.]” (Torres v. Automobile Club of So. California (1997)15 Cal.4th 771, 776.)
Where the amount awarded as damages is inadequate, the judgment must be reversed and
may be remanded for a retrial of the single issue of damages. (Little v. Superior Court
(1961) 55 Cal.2d 642, 645; Wilke v. Crofton (1949) 34 Cal.2d 304, 310.) In this case,
there is no challenge to any liability issue; the only challenge is to the damages awarded.
The issue of damages can be separately retried without affecting the jury’s findings on
liability. Because the damages in a wrongful death action are awarded as a lump sum,
rather than as individual awards for each plaintiff, however, we cannot separate the
damage claims of Yesenia and Claudia from the damage claims of the other family
members for retrial. We must remand the entire damages issue for retrial.
       Because we must reverse the entire award of damages and remand for a new trial,
we need not consider plaintiffs’ arguments that the award of economic and noneconomic
damages to Virginia, Erica, and Guadalupe was inadequate.




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                                                               DISPOSITION
              The judgment is reversed as to the amount of damages awarded. The matter is
remanded to the trial court for retrial of the issue of damages. The judgment is otherwise
affirmed. Plaintiffs are entitled to recover their costs on appeal.



                                                                             _____________________
                                                                                          HILL, P. J.
WE CONCUR:


 _____________________
GOMES, J.


 _____________________
HOFF, J. *
 




                                                            
*       Judge of the Superior Court of Fresno County, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

 

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