Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PC039643, John P. Farrell, Judge. Modified, and as so modified, affirmed. Cross-Appeal is denied.
Procter, Slaughter & Reagan, William M. Slaughter and Gabriele M. Lashly, for Defendant and Appellant.
Doumanian & Associates and Nancy P. Doumanian for Plaintiffs and Appellants.
KITCHING, J.
INTRODUCTION
Following a jury verdict awarding plaintiff Douglas Bilyeu $14,191,527 in damages for negligence against defendant William J. Cowgill and awarding plaintiff Diane Bilyeu $3,000,000 in damages against Cowgill for loss of consortium, the trial court partially granted Cowgill’s new trial motion. The trial court found that damages awarded were excessive and ordered a new trial on damages unless plaintiff accepted a remittitur reducing damages for past medical expenses, future medical expenses, past non-economic loss, and future non-economic loss as to Douglas Bilyeu, and reducing damages for loss of consortium as to Diane Bilyeu. Plaintiffs accepted the remitted judgment. Cowgill appeals from the judgment; plaintiffs cross-appeal from the conditional order granting new trial.
In Cowgill’s appeal, we conclude that Cowgill has not shown that instructional error occurred because of the failure to deliver instructions on the defense of property, superseding cause of harm, or the negligence of nonparty tortfeasors. The trial court also did not erroneously refuse a defense special verdict form about the alleged negligence of Diane Bilyeu. Regarding Cowgill’s claims of jury misconduct, we conclude that there was no impermissible “quotient verdict, ” that jurors did not expressly agree to include attorney’s fees in the verdict, and that jurors did not receive or communicate to fellow jurors information from sources outside the evidence at trial. Code of Civil Procedure section 685.010, subdivision (a) entitles plaintiffs to interest only from the date of entry of the final judgment, and the judgment must be modified to calculate postjudgment interest. Finally, the trial court did not erroneously deny Cowgill’s motion to tax costs.
In the cross-appeal of plaintiffs Douglas Bilyeu and Diane Bilyeu, we conclude that the trial court’s order reducing excessive damages was not an abuse of discretion, and that cross-appeal is denied. Subject to an order modifying the judgment with regard to postjudgment interest, we affirm the judgment.
PROCEDURAL HISTORY
On October 19, 2006, Douglas Bilyeu and Diane Bilyeu filed a complaint for damages against Cowgill. Douglas Bilyeu alleged a cause of action for negligence arising from Cowgill’s negligent striking of Bilyeu, causing him to fall to the ground and causing him to sustain traumatic brain injury and bodily injury. Diane Bilyeu alleged a cause of action for loss of consortium.
After a jury trial, the jury, by special verdict, found that Cowgill’s negligence was a substantial factor in causing harm to Douglas Bilyeu, and awarded him damages totaling $14,191,527. The jury verdict also found that Diane Bilyeu had lost the companionship and services of her husband, and awarded Diane Bilyeu damages of $3 million. Judgment on special verdict was entered on October 10, 2008.
On November 3, 2008, Cowgill filed a motion for a new trial. On December 11, 2008, the trial court partially denied and partially granted Cowgill’s new trial motion. The trial court found that the intentional nature of Cowgill’s act, and the “blame the victim” defense, impassioned the jury; found that damages awarded were excessive; and ordered a new trial on damages unless plaintiff accepted a remittitur of damages reducing past medical expenses, reducing future medical expenses, reducing past and future non-economic loss (including physical pain and mental suffering), and reducing the award of damages to plaintiff Diane Bilyeu for loss of her husband’s companionship and services. After this remittitur, the total award to Douglas Bilyeu would be $6,303,597.32 and to Diane Bilyeu would be 1.25 million.
On November 24, 2008, the trial court granted Cowgill’s motion to tax costs in part and denied that motion to tax costs in part, and ordered that plaintiffs recover costs of $117,996.23 and that this amount be added to the judgment.
On December 24, 2008, plaintiffs filed their notice consenting to remit damages awarded by the jury and to accept the remitted judgment.
On January 23, 2009, Cowgill filed a notice of appeal from the November 24, 2008, order on defendant’s motion to tax costs.
On February 9, 2009, Cowgill filed a notice of appeal from the order granting the judgment notwithstanding the verdict, the order amending the previous joint judgment to separate judgments in favor of each plaintiff, from plaintiffs’ December 24, 2008, acceptance of remittitur, and from the order partially granting defendant’s motion for new trial.
On March 12, 2009, Douglas Bilyeu and Diane Bilyeu filed a notice of cross-appeal from the December 11, 2008, order amending a previous joint judgment to separate judgments in favor of each plaintiff and from their December 24, 2008, acceptance of the remittitur.
On June 24, 2009, an amended judgment was entered ordering Douglas Bilyeu to recover from Cowgill $6,303,597.32 with statutory interest from December 24, 2008, ordering Diane Bilyeu to recover from Cowgill $1.25 million with statutory interest from December 24, 2008, and ordering plaintiffs jointly to recover from Cowgill $117,996.23 in costs plus statutory interest from December 24, 2008.
APPEALABILITY
Cowgill filed a timely notice of appeal from the November 24, 2008, order on defendant’s motion to tax costs, which is an appealable order. (Jimenez v. City of Oxnard (1982) 134 Cal.App.3d 856, 858, fn 3.)
On February 9, 2009, Cowgill filed a notice of appeal from a judgment entered, or to be entered, after several orders. The order granting the motion for judgment notwithstanding the verdict entered December 17, 2008, is not appealable, but is reviewable upon entry of a final judgment. (Cobb v. University of So. California (1995) 32 Cal.App.4th 798, 804; Walton v. Magno (1994) 25 Cal.App.4th 1237, 1240.)
Judgment was ultimately entered on June 24, 2009. We construe the notice of appeal to have been taken from the after-filed judgment. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219, fn. 6.)
The record does not contain the December 11, 2008, order amending the previous joint judgment to separate judgments in favor of each plaintiff, but Cowgill raises no issue on appeal as to that order.
Plaintiffs’ acceptance of remittitur filed December 24, 2008, after the conditional order for new trial of December 18, 2008, was reviewable upon entry of a final judgment. (Community Development Com. v. Shuffler (1988) 198 Cal.App.3d 450, 457-458.)
With regard to plaintiffs’ notice of cross-appeal, the clerk served notification of Cowgill’s February 9, 2009, notice of appeal on February 20, 2009. Plaintiffs’ notice of cross-appeal filed on March 12, 2009, was therefore timely (Cal. Rules of Court, rule 8.108(g)). Because the cross-appeal followed an appeal by Cowgill, plaintiffs’ cross-appeal is proper. (Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331, 343-346; Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 918, fn. 1.)
FACTS
On May 23, 2006, at about 10:00 p.m., William Cowgill’s stepsons returned to Cowgill’s house. Cowgill had his stepsons enter through the garage door, which they left open, allowing Cowgill’s dog to get out into the driveway that Cowgill shared with a neighbor, 59-year-old Douglas Bilyeu. Holding his nine-month-old baby, Cowgill went out into the driveway to find the dog, where he saw Bilyeu pursuing the dog with a wheeled trashcan. Cowgill threw his keys to get Bilyeu’s attention. Then Bilyeu ran the trashcan at Cowgill. Cowgill hit Bilyeu in the jaw with his right hand. Bilyeu fell. The dog ran past Cowgill into the garage.
Cowgill went into his house and put his baby down. When he returned, Bilyeu was lying on the ground. Bilyeu did not answer when Cowgill asked if he was OK. Five or 10 minutes later Bilyeu’s wife, Diane, came out of their house and saw him crouched in the middle of the driveway next to the trash can. He was not coherent, had a blank stare, and did not respond to her questions. She saw he had vomited on the front of his shirt. As she lifted him to a standing position, Bilyeu started moving in a disoriented way, which terrified her. She saw broken light bulbs on the ground and told Bilyeu, who was not wearing shoes, not to move. She then noticed Cowgill nearby. Diane Bilyeu wanted to get her husband inside the house, but could not do this by herself, and leaned him against the hood and windshield of their car. The shortest path to get Bilyeu into the house was through the garage to the kitchen door, but the garage door was closed. Diane Bilyeu ran into the house and opened the garage door. Outside, her husband was in the same position as he was when she left him. Cowgill grabbed Bilyeu’s other side and they brought Bilyeu into the house, where they put him on a couch. At this point Diane Bilyeu noticed bruising and some blood on Bilyeu’s forehead. As he was leaving, Diane Bilyeu heard Cowgill say, “I’m sorry, I did hit your husband, but he was going to run over my dog with the trash can.” Cowgill stated that he told Diane Bilyeu, “I don’t want you to get angry but I did hit him and that is why he’s down here.”
Cowgill left and Diane Bilyeu closed the garage door and returned to Douglas Bilyeu. He was in pain, and was mumbling and not hearing her when Diane Bilyeu was asking what had happened. He had bruising on the side of his head coming down his cheekbone, a black eye starting, and a bleeding skin abrasion on the right side of his head. His nose was pushed over on one side of his face. He was not profusely bleeding and there was no other obvious injury. Diane Bilyeu put a bag of frozen peas over his eye to stop the swelling, but that was painful and caused Douglas Bilyeu to scream. Diane Bilyeu realized she needed to get him to urgent care or the emergency room. She called her son and told him his father had suffered a blow to the head. Her son told her to call 911 and the sheriffs. Diane Bilyeu called 911 immediately. She did not know how long she was in the house before making that call.
From the time she first found her husband, Diane Bilyeu estimated it was 45 minutes before she called 911 for emergency help. Paramedics arrived and transported Bilyeu by ambulance to Henry Mayo Memorial Hospital.
On May 24, 2006, Dr. Maxine Hyde, a neurosurgeon at Henry Mayo Memorial Hospital, treated Douglas Bilyeu, who had sustained a traumatic brain injury. Bilyeu had an acute small left subdural hematoma over the frontal part of the brain (a blood clot under the dura—the covering of the brain), brain edema, and compromise of basal cisterns, reflecting increased cranial pressure. Bilyeu had bleeding on the left side of his brain, and multiple cerebral contusions (bruising) to the left frontal, left temporal, and parietal parts of the brain. These injuries had caused Bilyeu’s brain to shift three millimeters from the midline separating the right and left lobes of the brain. In the early morning of May 24, 2006, Dr. Hyde performed surgery to relieve compression on the left side of the brain and avoid compromise of cisterns at the base of the brain. During surgery, Bilyeu was also found to have sustained a fracture line. His brain tissue was bruised, macerated, and torn. Macerated brain tissue was removed, bleeding was controlled, the subdural hematoma was removed, and a catheter was left on the surface of the brain to measure and monitor intracranial pressure (brain swelling from injury).
The next day Dr. Hyde performed a second surgery on Douglas Bilyeu, because a hemorrhage had progressed, there was more subdural blood and now epidural blood (blood outside the dura), and a brain edema—the brain was more swollen. A blood clot was removed and an external ventriculostomy was performed by placing a catheter in Bilyeu’s ventricle, because blood was blocking the absorption of spinal fluid and his ventricular system was starting to enlarge. This stemmed from trauma. Dr. Hyde testified that Bilyeu would have died had this second surgery not been performed. The ventricular catheter remained in place from May 25, 2006, until Dr. Hyde removed it in an outpatient procedure in October 2006. At that time Douglas Bilyeu suffered from residual expressive aphasia (difficulty speaking words), numbness in both hands, and left arm pain. His post-operative scans showed evidence of encephalomalacia in his frontal, parietal, and temporal brain.
After his admission to Henry Mayo Memorial Hospital, Bilyeu remained hospitalized in the Intensive Care Unit for three to four weeks, went to acute rehab, and was released in the first week of July 2006.
Dr. Hyde could not determine which side of Bilyeu’s head had been injured. A fracture on the left side suggested a direct blow to that side of the head. But head injuries could be “contrecoup, ” meaning that a blow on one side of the head could produce injury to the opposite side of the brain. Brain lesions could be on the same side of the head injury or could be on the opposite side because the brain moved around in its fluid, producing an injury remote from the location of the impact.
Dr. Lakhbinder Dhanda, also practicing at Henry Mayo Memorial Hospital, is board certified in internal medicine, first saw Douglas Bilyeu on May 31, 2006, in the intensive care unit. Dr. Dhanda was called in to treat Bilyeu’s high blood pressure due to head trauma. Bilyeu had no hypertension before his injury occurred. In a visit on July 13, 2006, Dr. Dhanda diagnosed Bilyeu as having aphasia due to hemorrhaging on the left side of the brain, which controls speech.
Dr. Surisham Dhillon practices neurology at Henry Mayo Memorial Hospital. Dr. Dhillon treated Douglas Bilyeu beginning on August 27, 2007, for speech difficulties, memory issues, and balance issues. Dr. Dhillon diagnosed Bilyeu as having traumatic brain injury and complex partial seizures, which involved episodes in which Bilyeu was not able to speak and lost awareness for a few seconds. Dr. Dhillon prescribed an anti-seizure medication, Lamictal. When Bilyeu returned to Dr. Dhillon on September 25, 2007, he continued to have balance and memory problems, had difficulty understanding answers and transposed words. Dr. Dhillon testified that she expected that Bilyeu would take the anti-seizure drug Lamictal for the rest of his life.
Douglas Bilyeu formerly worked for seven years as a technical writer in the engineering department at Ricon Corporation, a manufacturer of mobility equipment (wheelchair lifts, ramps, and equipment to assist people with disabilities). His supervisor, Steven J. Stadler, described Douglas Bilyeu as a conscientious, detail-oriented worker with a good work ethic, and considered Bilyeu to be a valuable employee. Bilyeu had no performance problems or problems meeting deadlines. Bilyeu wrote technical and operator manuals for Ricon equipment, had a large vocabulary, and was never at a loss for words. When Stadler visited Bilyeu after he returned home from the hospital, Bilyeu’s language skills were significantly degraded. Bilyeu had difficulty picking the right words, and did not make sense. After Bilyeu’s injury, Ricon kept Bilyeu’s position open for him until he was ready to come back.
Douglas Bilyeu and Diane Bilyeu married in 1970. They have one son and three grandchildren.
Douglas Bilyeu testified that he has no memory of his head injury. He has no sense of smell. He has difficulty understanding things said to him and has daily difficulty finding his words and speaking. He sometimes has difficulty walking, bumps into walls, and has to be careful of his feet and legs to avoid falling. He no longer reads a newspaper because he does not understand what is written. He does not pay bills because it is difficult for him. He is able to drive short distances from the home.
Diane Bilyeu, wife of Douglas Bilyeu, testified that before his injury, Bilyeu was interested in cars and Formula 1 racing, and was in the process of restoring a car. He hiked, had done skydiving, and went dirt-biking with his son. He liked gardening, and had extensive interest in science. He had a bachelor’s degree in psychology, and received extensive electronics and engineering education in the military, which he used during his working life, which was mostly in mechanical engineering. He took classes in new technology.
Before his injury, Bilyeu had no trouble communicating with his wife, who described him as possessing an incredible, well-versed vocabulary. Before his injury, Bilyeu paid all household bills and was in total charge of the couple’s finances. After his accident, however, he was no longer capable of handling those functions.
After his injury, Mrs. Bilyeu observed several episodes in which her husband seemed to “space out” and could not hear or understand what was said to him. Ten minutes later, he would look around and ask “what happened?”
Until the time of his injury, Bilyeu had never been unemployed.
A forensic economist calculated Douglas Bilyeu’s lost past earnings, from the date of his injury through August 11, 2008, as $162,000. Bilyeu’s lost future earnings, assuming a remaining work life expectancy of five years, was $384,707. These totaled $546,737. With reference to Bilyeu’s life care plan, the present value of future life care needs was $3,081,930. Thus Bilyeu’s economic damages totaled $3,628.667.
Henry Mayo Memorial Hospital billed $422,870.82 for inpatient services to Bilyeu from May 24 through June 14, 2006, and $76,085.30 for rehabilitation inpatient services from June 14, to June 30, 2006. The hospital billed $692.24 for outpatient physical therapy from September 10 to 14, 2007, and on September 17, 2007.
Cowgill was arrested the next day by Sheriff’s deputies. He was interviewed while in custody, and admitted to having punched Bilyeu once in the face. Cowgill told sheriff’s deputies he punched Bilyeu in self-defense, thinking that Bilyeu was going to run him down with the trash can. Cowgill stated that he had not been injured in the encounter with Bilyeu.
ISSUES
In his appeal, Cowgill claims that:
1. The judgment must be reversed because the trial court refused to properly instruct the jury;
2. Jury misconduct requires reversal;
3. The trial court erroneously awarded interest from the time plaintiffs accepted the remittitur; and
4. The trial court erroneously denied Cowgill’s motion to tax costs.
In their cross-appeal, plaintiffs claim that:
1. The trial court erroneously ordered damages reduced by $10 million;
2. The trial court erroneously permitted the defense to conduct unfettered character assassination of plaintiffs to attack the extent of injuries and damages;
3. The damages awarded to Diane Bilyeu for loss of consortium were proper in light of the evidence presented at trial;
4. The trial court improperly granted a new trial reducing damages for past and future medical expenses incurred by plaintiffs.
DISCUSSION
I. Cowgill’s Appeal
A. Cowgill Has Not Shown Instructional Error
Cowgill claims that because there was evidence that supported an instruction on defense of property, contributory negligence, and superseding cause, the trial court’s refusal to deliver pertinent instructions requested by Cowgill was error.
1. Review of Claims of Instructional Error
A party is entitled upon request to correct, nonargumentative instructions on every theory of the case which that party advances and which substantial evidence supports. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) A reviewing court reviews the evidence most favorable to the applicability of the requested instruction, since a party is entitled to that instruction if that evidence could establish the elements of the theory presented. (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1540.) This court may not reverse a judgment because of instructional error unless the error caused a miscarriage of justice. (Ibid.; Soule, at p. 580.) When a jury receives an improper instruction in a civil case, prejudice will be found only where it seems probable that the jury’s verdict may have been based on the erroneous instruction. (Soule, at p. 580.) “[W]hen deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Id. at pp. 580-581.)
2. Any Error in Not Delivering a Defense of Property Instruction Was Not Prejudicial
Cowgill requested delivery of an instruction on self-defense—defense of property: “A person may use reasonable force to defend against wrongful injury to his property which he honestly and reasonably believes that another is about to inflict upon the property. [¶] However, the person who acts in self defense may only use as much force as reasonably appears necessary under the existing circumstances.”
The trial court refused this instruction on the ground that even conceding the truth of Cowgill’s testimony, his dog was not at risk at the time of the injury to Douglas Bilyeu. The trial court, however, delivered instructions on self-defense and defense of others.
The trial court delivered a self-defense/defense of others instruction: “William Cowgill claims that he is not responsible for Douglas bilyeu’s harm because he was acting in self-defense and/or in defense of another. To succeed, William Cowgill must prove both of the following:
In support of delivery of this instruction, Cowgill cites testimony of Diane Bilyou, who testified that after she and Cowgill brought Douglas Bilyou inside the house and placed him on a couch, Cowgill stated: “I’m sorry, I did hit your husband, but he was going to run over my dog with the trash can.” Cowgill continued, “I even asked him to stop again, and I threw my keys at him, and he still didn’t stop.”
Cowgill argues that the requested instruction was a crucial part of his defense, citing trial counsel’s opening and closing arguments that Douglas Bilyeu attacked Cowgill’s dog. Both those arguments, however, indicate that Bilyeu ceased to chase the dog and instead charged at Cowgill. The jury was also instructed in self-defense/defense of others, but rejected this defense in finding Cowgill negligent in causing harm to Douglas Bilyeu, suggesting that the jury would also have rejected a defense of property. Even if it was error not to deliver the defense of property instruction, that error was not prejudicial.
In opening argument, defendants’ counsel stated: “[Cowgill] threw the keys and nothing happened. The man [Bilyeu] kept chasing the dog. But you know what happened, the dog must have heard because the dog came back towards the owner and with that the evidence will show that Mr. Bilyeu turned and began to charge Mr. Cowgill who was holding his baby in his arms.” Thus the argument was that the dog returned to Cowgill, and Bilyeu no longer chased the dog but instead charged Cowgill.
2. The Evidence Did Not Support Delivery of a Superseding Cause of Harm Instruction
Cowgill claims that the trial court erroneously refused to deliver a requested CACI No. 432 instruction concerning third party conduct that was a superseding cause of harm. That requested instruction was based on Cowgill’s statement to police that when Diane Bilyeu came outside and saw that Douglas Bilyeu was injured, she leaned him against the car and left him unattended while she went into the house to open the garage door, during which time Cowgill saw Douglas Bilyeu hit his head against a wall near the garage.
Defendant requested the following instruction based on CACI No. 432: “William J. Cowgill claims that he is not responsible for Douglas Bilyeu’s harm because of the later misconduct of Diane Bilyeu. To avoid legal responsibility for the harm, William J. Cowgill must prove all of the following:
“1. That [Diane Bilyeu]’s conduct occurred after the conduct of Cowgill;
“2. That a reasonable person would consider [Diane Bilyeu]’s conduct as a highly unusual or an extraordinary response to the situation;
“3. That William J. Cowgill did not know and had no reason to expect that [Diane Bilyeu] would act in a [negligent/wrongful] manner; and
“4. That the kind of harm resulting from [Diane Bilyeu]’s conduct was different from the kind of harm that could have been reasonably expected from William J. Cowgill’s conduct.”
“A defendant’s conduct is superseded as a legal cause of an injury if, among other things, the intervening force is highly unusual or extraordinary, not reasonably likely to happen and, therefore, not foreseeable.” (Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 760.) The defendant has the burden of proving the affirmative defense of superseding cause. (Ibid.)
The evidence does not show that Diane Bilyeu’s conduct was a highly unusual or extraordinary response to the situation, was not reasonably likely to happen, and was not foreseeable. Substantial evidence thus did not support delivery of the instruction.
3. Substantial Evidence Did Not Support Delivery of an Instruction Concerning Negligence of Nonparty Tortfeasors
Cowgill claims that the trial court erroneously refused to deliver a requested instruction, CACI No. 406, concerning negligence of nonparty tortfeasors and apportionment of liability, based on Diane Bilyeu’s failure to summon medical help for Douglas Bilyeu for 45 minutes.
Cowgill’s requested instruction, based on CACI No. 406, states: “William J. Cowgill claims that the negligence/fault of [Diane Bilyeu] was [also] a substantial factor in causing Douglas Bilyue’s harm. To succeed on this claim, William J. Cowgill must prove both of the following:
“1. That [Diane Bilyeu] was [negligent/at fault]; and
“2. That the [negligence/fault] of [Diane Bilyeu] was a substantial factor in causing Douglas Bilyeu’s harm.
“If you find that the negligence/fault of more than one person including William J. Cowgill and Douglas Bilyeu [and Diane Bilyeu] was a substantial factor in causing Douglas Bilyeu’s harm, you must then decide how much responsibility each has by assigning percentages of responsibility to each person listed on the verdict form. The percentage must total 100 percent.
“You will make a separate finding of Douglas Bilyeu’s total damages, if any. In determining an amount of damages, you should not consider any person’s assigned percentage of responsibility.”
Cowgill cites evidence that Diane Bilyeu told a police officer investigating the incident that from the time she found him in the driveway, she estimated that it was 45 minutes until she called 911. Cowgill, however, cites no evidence that delay in calling paramedics exacerbated, or was a substantial factor in causing, Douglas Bilyeu’s harm. Substantial evidence therefore did not support delivery of this instruction.
4. The Trial Court Did Not Erroneously Refuse a Defense Special Verdict Form About the Negligence of Diane Bilyeu
Cowgill claims that the trial court erroneously refused a request to include negligence of others in the special verdict, which would have given jurors an opportunity to apportion negligence to some other person besides Cowgill and Douglas Bilyeu. Our conclusion that the trial court did not erroneously refuse to deliver instructions on a superseding cause of harm or negligence of non-party tortfeasors necessarily leads to the conclusion that it was not error to refuse a defense special verdict form inquiring whether Diane Bilyeu’s negligence was a substantial factor in causing harm to Douglas Bilyeu.
B. Jury Misconduct
Cowgill moved for a new trial because of jury misconduct, on the grounds that the jury reached its verdict on general damages by applying an average, which was an impermissible quotient verdict; that the jury impermissibly considered attorney’s fees to be received by plaintiffs’ attorney and increased damages to compensate for those fees; that jurors heard facts outside the evidence concerning nursing home care for Douglas Bilyeu; and that the jury presumed that Cowgill was incarcerated as a result of his criminal conviction and therefore was not present at trial. Finding no juror error, the trial court denied the motion for a new trial.
1. Standard of Review
Code of Civil Procedure section 657 prescribes a trial court’s authority to grant a new trial after a jury verdict or court decision. Subdivision 2 of that statute allows the grant of a new trial because of misconduct of the jury.
In ruling on a request for a new trial because of jury misconduct, the trial court conducts a three-step inquiry. First it determines whether affidavits supporting the motion are admissible. If this evidence is admissible, the trial court determines whether the facts establish misconduct. If misconduct has occurred, the trial court determines whether the misconduct was prejudicial. (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160.)
In dealing with these issues, the trial court has broad discretion, and its rulings in exercise of this discretion will not be disturbed absent a clear abuse of discretion. (Whitlock, supra, 160 Cal.App.4th at p. 160.) As to the third issue—whether prejudice arose from juror misconduct—in reviewing an order denying a motion for new trial based on jury misconduct, this court independently reviews the record to determine whether misconduct, if it occurred, prevented a fair trial. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 626.)
2. The Trial Court Did Not Erroneously Rule That Juror Affidavits Were Inadmissible
Cowgill’s new trial motion was based on several grounds of jury misconduct. It was supported by a first declaration of Juror Elsa Castanon. In opposition, plaintiffs submitted affidavits from the other 11 jurors refuting statements made in Castanon’s affidavit, and a second declaration by Castanon which corrected misstatements in her first declaration and which stated that her first declaration was false and misleading and did not accurately reflect her discussion with an interviewer for defense counsel. Cowgill claims that the trial court erroneously excluded Castanon’s affidavit as inadmissible under Evidence Code section 1150. There was no such ruling. The trial court stated only that the Evidence Code imposed limitations on the use of juror statements.
3. There Was No Impermissible “Quotient Verdict”
Code of Civil Procedure section 657, subpart 2 permits the grant of a new trial “whenever any one or more of the jurors have been induced to assent to any general or special verdict... by a resort to the determination of chance[.]”
One improper “determination of chance” is a “quotient verdict, ” in which “ ‘jurors agree to be bound by an average of their views; each writes the amount he favors on a slip of paper; the sums are added and divided by 12, and the resulting “quotient” pursuant to the prior agreement, is accepted as the verdict without further deliberation or consideration of its fairness.” (Chronakis v. Windsor (1993) 14 Cal.App.4th 1058, 1064, italics omitted.)
Why a quotient verdict is improper is described more concretely in Dixon v. Pluns (1893) 98 Cal. 384, in which “each juror agreed that a definite amount should be the verdict of the jury, at a time when he had no knowledge whatever as to what the amount should be, for it had not yet been computed. No person even knew the figures upon which the computation would be made. If the estimate of each juror is before the eyes of the others when the agreement is made, then no element of chance will be found in the result, for it would be a mere matter of mathematical computation; but without knowledge of these estimates, the character of the verdict will be as entirely unknown to the jurors as though the whole matter were decided by the casting of a die, or the tossing of a coin. In the casting of a die, or the tossing of a coin, justice has an equal chance with injustice, but under the system here considered, one unscrupulous and cunning juror always has the power to defeat justice by increasing or decreasing the amount of the verdict in proportion as he places his estimate at an unconscionably high or low figure.” (Id. at p. 387.)
Juror Elsa Castanon’s November 6, 2008, declaration stated: “During jury deliberations each of the jurors suggested an amount to compensate Mr. Bilyeu for his pain and suffering and the damages to be awarded to Mrs. Bilyeu. The amounts that were suggested [Interlineation by Castanon: were different from 1 million to 10 million].... To decide what amount to put on the Special Verdict form, we took the average of the [Interlineation by Castanon: [mid-lower]] amount of damages proposed by each juror.”
This was not an impermissible quotient verdict. Instead of having no knowledge of the figures on which the jury’s computation would be made, each juror arrived at a figure. The estimate of each juror was before the eyes of the other jurors when the agreement on the amount of damages was made. Those amounts were not averaged. There was no chance that a single unscrupulous juror could defeat justice by increasing or decreasing the amount of the verdict. Even accepting juror Castanon’s description of the juror deliberations, there was no impermissible “quotient verdict.”
Juror Castanon submitted a second declaration of November 25, 2008, which stated that her earlier declaration contained inaccuracies, did not accurately reflect her thoughts and impressions of jury deliberations, and corrected misstatements in that earlier declaration. On this issue, Castanon’s November 25, 2008, declaration stated: “[T]he jury’s verdict was not reached by each of us giving a number and then dividing it by twelve or averaging out our numbers. Rather, each juror had their own opinion as to the damages but after discussions and deliberation we all agreed to what would be a reasonable amount.”
Ten other jurors also submitted declarations. Each of them confirmed the statement in Castanon’s November 25, 2008, declaration. One juror’s declaration cited a jury instruction specifically telling jurors not to take a number and divide it by 12.
There was no showing that jurors agreed in advance to be bound by the average of their individual views of the amount of damages. (Chronakis v. Windsor, supra, 14 Cal.App.4th at p. 1065.) Because the jury did not produce an impermissible “quotient verdict, ” there was no error in the denial of defendant’s new trial motion on this ground.
4. Jurors Did Not Expressly Agree to Include Attorney’s Fees in the Verdict
Cowgill claims that the jury impermissibly increased plaintiffs’ damages to compensate them for attorney’s fees they would pay to their attorney. Cowgill cites Juror Castanon’s November 6, 2008, declaration: “During deliberations, it was discussed that Mr. and Mr. Bilyeu’s attorney would receive a certain percentage of the amount of the verdict. Because plaintiffs would not receive the full amount, the jury discussed increasing plaintiffs’ damages. [Interlineation by Castanon: Not so[;] we took fees into consideration as well.] It was decided to give plaintiffs more damages to compensate for the attorneys’ fees they would have to pay.”
Castanon’s November 25, 2008, declaration stated: “there was never any time during our deliberations where we considered the issue of attorneys fees or that we needed to increase the award to cover any assumed attorneys fees. In fact, I recall that we were read an instruction that told us not to do that.”
The ten other juror declarations stated that the statement in Castanon’s November 6, 2008, declaration that during jury deliberations, jurors discussed the subject of attorneys fees to be paid by Mr. and Mrs. Bilyeu was false. Those declarations stated that at no time during deliberations did jurors discuss or otherwise consider this subject and that jurors never took possible attorneys fees owed by the Bilyeus to their attorney into account in arriving at their verdict. The declarations of some of the other ten jurors further stated that jurors followed the jury instruction on this issue.
“An express agreement by the jurors to include [attorney’s fees] in their verdict, or extensive discussion evidencing an implied agreement to that effect, constitutes misconduct requiring reversal.” (Krouse v. Graham (1977) 19 Cal.3d 59, 81.) No express agreement by jurors to include attorney’s fees in their verdict occurred, and the trial court properly denied defendant’s new trial motion on this ground.
5. Jurors Did Not Receive or Communicate to Fellow Jurors Information From Sources Outside the Evidence
a. The Jury Did Not Hear or Discuss Medical Issues Concerning Douglas Bilyeu’s Injury That Were Outside the Evidence
Cowgill claims that the jury committed misconduct by considering facts outside the evidence presented at trial. Cowgill cites Castanon’s November 6, 2008, declaration: “One of the jurors was a nurse. During jury deliberations, that juror explained medical issues regarding nursing home care for Mr. Bilyeu. She told us many people who go to a nursing home get worse and, therefore, he should stay at his own home. [Interlineation: Therefore his wife should be equally compensated.]”
Castanon’s November 25, 2008, declaration stated, on this issue: “[A]t no time did Vicky Unitan, one of our jurors who was a nurse, ever mention during deliberations that she had her own opinions independent of what we heard at trial regarding the plaintiff’s injury. All of the deliberations were based on the opinions we heard at trial from the expert, and not based on any independent jury opinions.”
Declarations from the ten other jurors stated that Castanon’s statement in her November 6, 2008, declaration that during deliberations a juror who was a nurse explained medical issues regarding nursing home care for Douglas Bilyeu was false, and that jurors did not discuss or consider this subject other than to consider the evidence presented during the trial. Other jurors added that at no time during deliberations did they express any opinions independent of what that juror heard at trial regarding the nature and extent of Douglas Bilyeu’s injury.
Jurors who receive or communicate to fellow jurors information from sources outside the evidence in the case commit misconduct. (Lankster v. Alpha Beta Co. 1993) 15 Cal.App.4th 678, 682.) Here juror declarations show that jurors did not receive or communicate to fellow jurors information from sources outside the evidence. There was no jury misconduct and the trial court properly denied plaintiff’s new trial motion on this ground.
b. The Jury Did Not Discuss the Conviction or Incarceration of Cowgill During Deliberations
Cowgill claims misconduct because jurors presumed that Cowgill was incarcerated as a result of his criminal conviction and therefore was not present at trial.
Cowgill cites Juror Castanon’s November 6, 2008, declaration: “During jury deliberations it was discussed that the defendant, William J. Cowgill, was criminally convicted [interlineation: possibly incarcerated] for injuring Mr. Bilyeu. [¶]... During jury deliberations it was discussed [interlineation: presumed] that Mr. Cowgill was incarcerated as a result of his criminal conviction and that this was the reason he was not present at trial.”
Castanon’s November 25, 2008, declaration, however, stated: “during the jury selection process I asked Mr. James Hart, the attorney for defendant Cowgill, where his client was as he was not present in the courtroom. Mr. Hart did not answer my question. Judge Farrell, however, stated to those of us seated in the jury box that Mr. Cowgill’s presence or absence from the courtroom was immaterial and irrelevant, and therefore I did not give any weight to the fact that Mr. Cowgill was not present during the trial at any time during jury deliberations. [¶] [I] wish to clarify that there was never any discussion during deliberations that Mr. Cowgill was convicted of any crime. While I may have presumed that, my presumption did not affect the deliberations and this subject was not considered by me or any of the other jurors for any reason or purpose.”
Declarations from the ten other jurors stated that the two statements in Castanon’s November 6, 2008, declaration that during deliberations jurors discussed (1) that Cowgill was possibly criminally convicted for injuring Douglas Bilyeu, and (2) that Cowgill was incarcerated as a result of his criminal conviction and that was the reason he was not present at trial, were false. The 10 other jurors’ declarations stated that at no time during deliberations did jurors discuss or otherwise consider these subjects for any reason or purpose.
The juror declarations establish that jurors did not receive or communicate to fellow jurors information from sources outside the evidence. There was no jury misconduct and the trial court properly denied plaintiff’s new trial motion on this ground.
C. Claims Relating to Prejudgment Interest
Cowgill claims that the trial court erroneously awarded interest from the date plaintiffs accepted the remittitur instead of from the date of entry of the final judgment. Plaintiffs respond that the trial court erroneously failed to award them prejudgment interest from the date defendant refused their Code of Civil Procedure section 998 offer.
1. Plaintiffs Failed to Claim Prejudgment Interest Pursuant to Civil Code Section 3291 in the Trial Court, and Therefore Have Forfeited That Claim
Plaintiffs claim that the trial court erroneously failed to award them prejudgment interest pursuant to the provisions of Civil Code section 3291. That statute states, in relevant part: “In any action brought to recover damages for personal injury sustained by any person... whether by negligence or by willful intent of the other person... and whether the injury was fatal or otherwise, it is lawful for the plaintiff in the complaint to claim interest on the damages alleged as provided in this section.
“If the plaintiff makes an offer pursuant to Section 998 of the Code of Civil Procedure which the defendant does not accept prior to trial or within 30 days, whichever occurs first, and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff’s first offer pursuant to Section 998... which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment.”
Plaintiffs have cited to an incomplete copy of their Code of Civil Procedure section 998 offer in the record on appeal. We have located a complete copy of that offer, however, which was attached to the defendant’s opposition to the motion to tax costs. It shows that plaintiffs’ section 998 offer was dated August 1, 2008, and offered to have judgment in the amount of $1,950,000 entered in plaintiffs’ favor and against defendant Cowgill.
Prejudgment interest under Civil Code section 3291, however, is not an element of damages and must be claimed by a memorandum of costs under Code of Civil Procedure section 1034. (Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 1012.) Plaintiffs’ memorandum of costs filed on October 6, 2008, contains no claim for prejudgment interest under Civil Code section 3291. Thus plaintiffs appear to have made this claim for the first time on appeal, which is therefore forfeited.
2. The Judgment Must Be Modified to Calculate Postjudgment Interest on the Amount of the June 24, 2009, Judgment
Code of Civil Procedure section 685.020, subdivision (a) states: “Except as provided in subdivision (b) [concerning a money judgment payable in installments], interest commences to accrue on a money judgment on the date of entry of the judgment.”
Judgment was initially entered on October 10, 2008, but on December 18, 2008, the trial court issued its conditional order for a new trial unless plaintiffs accepted a remittitur of damages. On December 24, 2008, plaintiffs accepted that remittitur of damages and reduced judgment by court. On June 24, 2009, an amended judgment was entered ordering Douglas Bilyeu to recover from Cowgill $6,303,597.32 with statutory interest from December 24, 2008, ordering Diane Bilyeu to recover from Cowgill $1.25 million with statutory interest from December 24, 2008, and ordering plaintiffs jointly to recover from Cowgill $117,996.23 in costs plus statutory interest from December 24, 2008.
Pursuant to Code of Civil Procedure section 685.020, therefore, plaintiffs are entitled to interest only from the date of entry of the final judgment on June 24, 2009. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 533.) Thus the judgment must be modified to calculate postjudgment interest on the total amount of the June 24, 2009, judgment.
D. The Trial Court Did Not Erroneously Deny Cowgill’s Motion to Tax Costs
Cowgill claims that the trial court erroneously denied his motion to tax costs.
As stated, ante, on August 1, 2008, plaintiffs served Cowgill with an offer to have judgment in the amount of $1.95 million entered in plaintiffs’ favor and against defendant Cowgill. Cowgill filed a motion to tax costs on the ground that plaintiffs were not entitled to $85,634.25 in expert witness fees pursuant to Code of Civil Procedure section 998, subdivision (d). Cowgill’s motion to tax costs argued that plaintiffs’ offer to compromise was not valid because it did not contain a provision allowing Cowgill to indicate acceptance of the offer by signing a statement that the offer was accepted, and thus did not comply with requirements of the statute. The trial court denied that motion.
Code of Civil Procedure section 998, subdivision (d) states that if a defendant does not accept a settlement offer made by plaintiff, and the defendant fails to obtain a more favorable judgment or award, the court may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses.
Code of Civil Procedure section 998, subdivision (b) states, in relevant part: “[A]ny party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.”
Although the statute states that the written offer “shall” include a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted, the next sentence contemplates that the accepting party may make its acceptance of the offer “on a separate document of acceptance.” Code of Civil Procedure section 998 “does not require that the acceptance be in writing nor does it specify the manner in which acceptance must be communicated.” (Gray v. Stewart (2002) 97 Cal.App.4th 1394, 1397.) “[A]ny reasonable and usual mode of communication may be used to accept a section 998 offer unless a specific mode was prescribed in the offer.” (Ibid.) Only the section 998 offer is required to be in writing; where the offer to compromise does not prescribe any specific mode of communication of acceptance, all that is required is that the acceptance be communicated in a clear and unequivocal fashion. (Ibid.; Hofer v. Young (1995) 38 Cal.App.4th 52, 56.) The absence of a provision that allows an accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted did not invalidate the Bilyeus’ section 998 offer. The trial court did not erroneously deny Cowgill’s motion to tax costs.
II. Plaintiffs’ Cross-Appeal
A. The Order Reducing Excessive Damages Was Not an Abuse of Discretion
Plaintiffs first claim that in its order granting the motion for a new trial, the trial court erroneously reduced the jury’s verdict by $10 million.
1. Standard of Review
When a motion for new trial is granted on the ground of excessive damages, or where the trial court requires a reduction in the amount of damages as a condition of denying the motion, the order will not be reversed unless it plainly appears the court has abused its discretion. In ruling on the motion, the trial court sits as an independent trier of fact. Thus Code of Civil Procedure section 662.5, dealing with orders for a new trial conditioned on additur or remittitur, indicates that such orders shall be made unless the affected party consents to the addition or reduction “of so much [of the verdict] as the court in its independent judgment determines from the evidence to be fair and reasonable.” The reviewing court must consider only those reasons for granting the motion stated by the trial court in its order. Within those confines, the question on appeal from an order conditionally granting a new trial on the basis of excessive damages is whether a verdict for an amount considerably less than that awarded by the jury would have had reasonable and substantial support in the evidence. (Dell’Oca v. Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531, 547.)
When reviewing an order granting a new trial, this court accords considerable deference to the trial judge, and “ ‘the presumption of correctness normally accorded on appeal to the jury’s verdict is replaced by a presumption in favor of the [new trial] order.’ ” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.) “[A]n order granting a new trial under [Code of Civil Procedure] section 657 ‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.’ ” (Ibid.)
2. The Trial Court’s Order
The trial court’s order stated that excessive damages was the sole ground for a new trial. The order stated that after independently weighing the evidence, the trial court found that the jury awarded excessive damages and clearly should have reached a different verdict on the amount of damages. The trial court found that the passion of the jury in awarding damages affected the defendant’s substantial rights, and that the intentional and criminal nature of the act, which formed the basis for the finding of negligence, together with the “blame the victim” defense offered by Cowgill and his attorney and presented to the jury by plaintiffs’ playing of the tape of Cowgill’s interrogation by police, greatly impassioned the jury, which sought to “throw the book at defendant in a punitive manner.” The trial court found that damages awarded were excessive considering Douglas Bilyeu’ injuries and Diane Bilyeu’s loss of consortium and the result of passion and prejudice by the jury.
The trial court found that while Douglas Bilyeu suffered brain damage and memory loss, he suffers no physical pain, although he has emotional pain and suffering when he is unable to remember words. Although Bilyeu has diminished capacity, he can still function at a limited adult level. The trial court further found that Douglas Bilyeu would not require assisted living housing of the level of personal care awarded; that past medical damages were clearly based on bills and not actual costs; and that non-economic damages were excessive considering pre-existing conditions and Bilyeu’s age. The trial court found that loss of consortium based on such injury was also clearly excessive, especially considering pre-existing conditions and the ages of Douglas and Diane Bilyeu.
3. The Finding That $10 Million Non-Economic Damages Were Excessive and Should Be Reduced to $3.5 Million Was Not an Abuse of Discretion
a. Substantial Evidence Supported the Trial Court’s Findings That Douglas Bilyeu’s Pain and Suffering Did Not Justify a $10 Million Award of Damages
The trial court reduced the damages awarded to Douglas Bilyeu for past non-economic loss (physical pain and mental suffering) from $1.5 million to $1 million, and reduced damages for future non-economic loss from $8.5 million to $2.5 million.
A plaintiff is entitled to damages for physical pain and mental suffering resulting from or accompanying physical injury. (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 413.)
Bilyeu had mild memory loss and mildly impaired language skills, primarily expressive aphasia, a difficulty in articulation and finding words to speak. He complained about not being able to smell and numbness in his right hand. He was not in physical pain.
Douglas Bilyeu was found to have a moderate limitation and to be capable of sedentary, clerical or administrative work. Bilyeu had no diminished judgment, impaired attention, impaired visual skills, or problem solving deficits. His motor skills were normal and there was no paralysis. He had received a Global Assessment of Functioning score of 45 ten months before his accident. Two years after his injury, his Global Assessment of Functioning score was in the same range.
Bilyeu had obtained his driver’s license and drove short distances. Bilyeu was described as “very handy” around the house, although not in the same way as before his injury.
Approximately 18 months before trial, Bilyeu had taken a five-day vacation to Central California, during which he and his wife visited wineries and looked at properties for sale.
Douglas Bilyeu had a life expectancy of 19.7 remaining years. The damages award of $10 million for past and future non-economic loss thus was more than $500,000 per year. Given Bilyeu’s level of functioning and lack of pain, the trial court did not abuse its discretion in finding the jury’s $10 million award of damages excessive and in reducing that award to $3.5 million.
b. There Was Evidence That An Impassioned Jury Awarded Excessive Non-Economic Damages
Defense counsel argued to the jury that Douglas Bilyeu, while under the influence of alcohol and Klonopin, was the aggressor and Cowgill acted using reasonable force for the defense of himself and his child. The jury likewise heard a tape of the police interrogation of Cowgill, in which Cowgill stated that a crazy, drunken Douglas Bilyeu angrily came at Cowgill with a rolling trash container, which caused Cowgill to hit him. The trial court characterized this as a “blame the victim defense” which, combined with Cowgill’s intentional and criminal act, impassioned the jury, which sought to punish Cowgill by awarding excessive damages. This supports the conclusion that there was no abuse of discretion in the trial court’s reduction of damages.
4. The Reduction of Damages for Loss of Consortium Awarded to Diane Bilyeu From $3 Million to $1.5 Million Was Not an Abuse of Discretion
The trial court reduced the damages award to Diane Bilyeu for loss of consortium from $3 millionto $1.25 million.
Damages for loss of consortium can be awarded to a married spouse for the impairment of his ability to participate in a normal married life. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 404.) Consortium includes loss of support or services, and the elements of love, companionship, affection, society, sexual relations, solace, and moral support. (Id. at p. 405.)
Douglas Bilyeu, however, was not incapacitated or in daily pain, and was able to provide love, companionship, affection, and society to Diane Bilyeu. They had traveled together on a trip. Although Douglas Bilyeu experienced expressive aphasia, he was able to talk and converse in a pleasant manner.
Plaintiffs in part seek to justify the loss of consortium award as compensating Diane Bilyeu for Douglas Bilyeu’s inability to return to work. Douglas Bilyeu, however, was awarded damages for lost future earnings. If her husband is compensated for his loss of earnings and earning power, a wife cannot recover for the loss of her husband’s financial support. (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at p. 404.)
Deprivation of a husband’s physical assistance in maintaining and operating the family’s home is a compensable item of loss of consortium. (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at p. 409, fn. 31.) Douglas Bilyeu, however, had obtained his driver’s license and was able to drive short distances to a grocery store and to Home Depot. He was also described as “very handy” around the house, although not in the same way as before his injury.
As the trial court pointed out, Douglas Bilyeu survived his injuries, and spouses of deceased plaintiffs had been awarded considerably less for loss of consortium than the $3 million awarded to Diane Bilyeu.
We find no abuse of discretion in the trial court’s reduction of damages awarded to Diane Bilyeu for loss of consortium from $3 million to $1.5 million.
B. Plaintiffs Have Not Shown Error in the Order Granting a New Trial Reducing Damages for Past and Future Medical Expenses
The trial court granted a new trial on the ground of excessive damages, and ordered the jury’s award of past medical expenses reduced from $562,860 to $256,860.32, and ordered the jury’s award of future medical expenses reduced from $3,081,930 to $2,564,241. Plaintiffs claim that the trial court improperly reduced damages for past medical expenses and future medical expenses.
“[A]n order granting a new trial under [Code of Civil Procedure] section 657 ‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.’ ” (Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 412.) Plaintiffs cite no evidence, make no argument on the evidence, and offer no analysis to support the conclusion that no reasonable finder of fact could have found for the defendant on the new trial motion on the ground of excessive damages. Thus plaintiffs have not met their burden of showing that the trial court’s order granting a new trial was an abuse of discretion. The claim of error on appeal is therefore forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
DISPOSITION
With regard to Cowgill’s appeal, the judgment is modified to include a calculation of interest from the date of entry of final judgment on June 24, 2009. The judgment is otherwise affirmed. Plaintiffs’ cross-appeal is denied. The parties are ordered to bear their own costs on appeal.
We concur: KLEIN, P. J., ALDRICH, J.
“1. That William Cowgill reasonably believed that Douglas Bilyeu was going to harm him and/or his 10-month-old daughter; and
“2. That William Cowgill used only the amount of force that was reasonably necessary to protect himself and/or his 10-month-old daughter.”
In closing argument, defendant’s counsel stated: “The facts are that while under the influence of alcohol and Klonopin he is erratically chasing the neighbor’s dog with a garbage can. Mr. Bilyeu turned and then approached Mr. Cowgill and got punched and fell down and vomited. Okay.”