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Davila v. Nickell10/26/2005
p. 961-962.) The court noted that the plaintiff "must bear the responsibility for a special verdict submitted to the jury on its own case." (Ibid.) But the court also emphasized the defendant did repeatedly attempt to bring the matter to the court's attention before the punitive damages phase by requesting the trial court to instruct the jury that if it had awarded compensatory damages for only breach of contract, then no punitive damages could be awarded. (Id. at pp. 959, 962.) The court stated that " lthough this instruction might have avoided the problem presented by this appeal, it was also refused." (Id. at p. 959.) The court further stressed that the defendant attempted to remedy the error by submitting a special verdict form at the punitive damages phase that would have clarified whether any fraud damages were awarded, but the plaintiff "vigorously oppos " this proposed clarification and thus contributed to the error. (Id. at pp. 960, fn. 8, 962, fn. 11.)
The facts here are materially distinguishable. The unresolved factual issue was not part of Barraza's affirmative case, but concerned factual findings necessary to resolve defendants' affirmative defenses of statute of limitations and res judicata. Additionally, unlike the defendants in the Myers case, the defendants in this case did nothing to bring the error to the attention of the trial court. They instead affirmatively contributed to the error by submitting the final verdict form without including the questions on their defense.
The Louies' reliance on Byrum v. Brand (1990) 219 Cal.App.3d 926 is also misplaced. In Byrum, the appellant contended the verdict form given to the jury was different from the form agreed upon by counsel. (Id. at pp. 936-937.) In this case, there is no suggestion the error in the verdict form was the result of a misunderstanding or a hidden mistake. Further, we do not read Byrum as changing the well-settled principle that a party must raise an objection to a defective verdict form that could be easily corrected before the jury is discharged. A contrary rule would encourage parties to waste judicial resources and create reversible appellate error by remaining silent despite an obviously defective verdict form if the trial did not go as well as expected.
We note additionally that it is not clear that defense counsel's failure to assert an objection to the special verdict form was merely an inadvertent error and not a part of a deliberate trial strategy. (See Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457, fn. 2.) In reviewing the entire record, it appears that after the court denied the Louies' non-suit motion, the Louies' counsel made a decision not to focus on the statute of limitations/res judicata defenses in seeking to prevail in the case. Not only did counsel fail to request jury instructions that would have clearly informed the jury of the legal effect of the October 1997 settlement agreement and the facts to be decided by the jury, the Louies' counsel did not assert the res judicata/statute of limitations issue as a defense in his closing argument to the jury. His only mention of the October 1997 settlement agreement was to briefly question why Barraza would have signed the agreement if he was injured in the scope of his employment. He never argued that the Louies did not authorize Nickell and/or Rumjahn to act as their agent in negotiating the settlement, or that a breach of the settlement agreement for failure to pay medical expenses did not permit a second action. We cannot speculate on the reason for defense counsel's actions. But for purposes here, the important point is that the failure to object to the jury verdict form does not necessarily appear to have
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