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Davila v. Nickell10/26/2005
We agree with the Louies that the special verdict should have included questions directed at these issues. Without these findings, the court had no way of knowing whether the jury addressed the affirmative defenses and, if so, what the jury decided on these issues. The jury was not instructed that it could not find in plaintiffs' favor on liability issues unless it first rejected defendants' affirmative defenses. Thus, we cannot imply from the jury responses that it found against defendants on these issues. (See City of San Diego, supra, 126 Cal.App.4th at p. 678.)
This deficiency in the verdict, however, does not support reversal of the judgment because the Louies failed to raise the error in the trial court. (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131; Babcock v. Omansky (1973) 31 Cal.App.3d 625, 630-631; see also Brokaw v. Black-Foxe Military Institute (1951) 37 Cal.2d 274, 280.) The problem with the verdict form was apparent at the time of trial. The court and counsel discussed the proposed special verdict form in detail, and carefully considered each question on the form. Yet, the Louies' counsel never raised the issue of the missing questions, nor requested any findings on the Louies' statute of limitations and res judicata defenses or on Barraza's claims that sought to avoid those defenses.
Although there is some confusion in the record, it appears the Louies' counsel proposed the final verdict form that was ultimately used by the trial court and submitted to the jury. This verdict form did not contain any questions pertaining to the October 1997 settlement agreement. The Louies' counsel further did not request a jury instruction informing the jury it must resolve the factual issues on the settlement agreement before it could find defendants liable to Barraza.
In seeking to avoid the waiver rule, the Louies argue that it is a plaintiff's responsibility to submit a verdict form that contains findings on each essential element of the causes of action upon which he or she seeks judgment. (See Myers, supra, 13 Cal.App.4th at pp. 961-962.) We agree with this general principle, but it does not help the Louies in this case. The factual questions surrounding the settlement agreement were relevant to affirmative defenses, not elements of Barraza's negligence cause of action. Thus, it was the Louies' responsibility to ensure the jury made the appropriate findings on their defenses.
Moreover, even if it was Barraza's burden to propose the factual questions relating to the statute of limitations/res judicata defenses, it is well settled that the opposing party has the burden to object to a special verdict that does not contain a necessary inquiry. (See Jensen v. BMW of North America, Inc., supra, 35 Cal.App.4th at p. 131; Babcock v. Omansky, supra, 31 Cal.App.3d at pp. 630-631; see also Brokaw v. Black-Foxe Military Institute, supra, 37 Cal.2d at p. 280.) The Louies cite Myers, supra, 13 Cal.App.4th 949 for the proposition that waiver principles are inapplicable to a defective verdict form. Myers does not support this principle.
In Myers, the special verdict form requested the jury to make findings only on breach of contract and punitive damages, and not the underlying tort causes of action. (Myers, supra, 13 Cal.App.4th at p. 958.) The appellate court found the punitive damages award could not be sustained on this verdict because a punitive damages award requires affirmative factual findings on a tort claim. (Id. at p. 961.) The court thus reversed the punitive damages award. In so doing, the court rejected the plaintiff's contention that the defendant waived its challenge to the verdict by not objecting below. (Id. at p
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