thank you your honor good morning they have to leave the court my name is petter but salt and i represent defendants and appellant alvin flynn and pile trucking the defendants in this wrongful death action are seeking a new trial because of an instructional error that impacted the jury's consideration of liability issues and because of the verdict form error that impacted the jury's consideration damages issues and apart from all that we're asking the court to reverse the award of interest under a state law offer of judgment scheme that is either inapplicable or in conflict with federal law now lawful death actions in california are single and in divisible claims that are brought jointly by all the heirs t family unit if you will and for that reason for more than one hundred years california has followed a unique rule that a jury must return any award of damages and a lump sum that compensate that family not assuming that that the verdict farmers in error where's the prejudice the harm here your honor is that with giving the jury more than one opportunity more than one blank in which to fill out damages there's a risk that they would ward more damages in the aggregate than if they were awarding filling in a single line on the verdict form and common sense would tell us that that's a legitimate risk and of course we know that that's a legitimate risk because plaintiffs are advocating that the lump sum verdict will not be followed in this case there is a reason why they're making that argument but isn't the california law to protect the defendants when there might be some sort of excuse me the plaintiffs when there might be some sort of dispute among them as to what anybody might be entitled and i think the step to inquiry gets that what you're asking about it protects allows a court to allocate among the various errors the amounts of damages that a jury has first awarded in a lump sum and we don't disagree that defendants have no stake in that second step inquiry where the where the jury has already determined what the lump sum is then it's the courts it's up to the plaintiffs and the courts to allocate that but in that first step inquiry where the lump sum is being determined the defend have an important state in making sure that the jury doesn't award an undeservedly high amount simply because it's given more blanks to fill out are you aware of any california case in which a defendant has  verdict on this ground i don't believe we cite a case for that particular property i asked the question but i'm not sure that the issue has arisen all that frequently in california but i think the the rule is a venerable rule there's no dispute that it exists and that is the law in california and there's no dispute that the jury in this case did not return a lot some verdict and that violation of the rule is in error how much damage it the plaintiffs ask for i mean is there some argument you can make that let it were to separate the one point seven five million to eight plane the plane is counsel requested less and damages than the jury awarded if that's the question that you're right that's the case but it's important for the court to view this through the lens of the procedure that this court's cases have enunciated i n the harmless error context once we show a legal area trial error as as we've shown a violation of the rule the burden shifts to the pelleas to show that that error was harmless a presumption of prejudice arises and if all our briefs as well or anything that says a verdict error is presumed prejudicial your honor i don't believe there's a case dealing with the verdict forms but this court's jurisprudence has pointed out that instructional errors are treated the same way as verdict form errors they are of a piece and we cite the case in our priest for that proposition and so the court's jurisprudence dealing with instructional errors ought to be the appropriate guidance here and when there has been an error as i said a presumption of prejudice arises so if this court concludes nothing other than that it's questionable whether the jury would have awarded more or less if there were two blanks rather than one we are the beneficiaries of that on certainty because the presumption of prejudice stands and rebut it  think that the new trial ought to be a complete new trial both because of the default common law rule new trials are completed but also because there was an instructional error in this case let's say your honor liability against pile trucking through a federal trucking regulation that was customized to serve as a jury instruction but there was never argued was that i'm sorry the plaintiff didn't argue that there was an independent basis to find the trucking company liable because there was a violation of that particular regulation that requires drivers to keep their records the argument was that mr  is the one who was negligent and as part of the proof that was argued as i understand it that he didn't keep his records which goes to inattentiveness and all of that sort of stuff it didn't have anything to do with an independent basis of liability did it your honor i don't believe that plaintiff's counsel made any particular strong argument or pitch for direct liability in closing argument but the jury was instructed on that theory and the jury would have heard no evidence about pyle trucking conduct or lack of conduct and so it would have been very easy for the jury to conclude that pile trucking had not satisfied the requirement that that jury instruction impose if you read all the instructions together which as i understand it is a right way to to read them i simply don't see that there is any plausible argument that the jury would have thought there was a separate independent claim that wasn't the result of the driver's negligence your honor there are two instructions that i would ask that the court take particular care in reviewing instruction eighteen which is that page ninety excerpts and instruction twenty nine which i believe is a page one hundred twenty nine so that the defendant trucking company is the principal and flint is the agent and that the liability of the company follows that of the individual if he was in a i mean i'm paraphrasing if he was negligent the company's live on if he was then the company is out off the hook so that's that's that's exactly what you say should have been presented and it was so i don't understand why the doesn't respond to the problem because your honor what the second and third sentences of that instruction show is that the liability of the two defendants would stand or fa together either they were both liable or neither that's not what it says it says if you look at what he the individual did and then based on when you find the individual dead so goes the trucking company it didn't work both ways but your honor the jury knew from reading that instruction that they could not return a verdict in which one defendant were liable and the other were not that would have been inconsistent with that instruction but it's not that broad i mean it's true but that's a broader proposition than what is stated in the instruction and i don't see anything in eighteen that honestly even eighteen on its own doesn't say what i think you're saying that's what eighteen says is that the trucking company is required to of proof on that's the theory of the case and it was quite clear i thought from the instructions as a whole that there was no direct liability theory that the jury could possibly read into this and if all that if we accept all that is true your honor then that instruction eighteen had no business being in the case it served absolutely no purpose it was improper to give it and the final issue i'd like to touch on just briefly is the offer of judgment question in the case dealing with interest all of this court's cases that have analyzed state law offers of judgment where a party has offered a judgment under state rule or statute involving civil procedure and has then that or that offer at trial are cases  which this court has denied relief either this court has affirmed districts that have denied relief or this court has reversed just records that have granted relief there is no case in this court where a party who offered and offered a state law for a judgment and had a rejected has ever recovered enhanced interest expert witness these etc and this case is no different from any of those cases is that substantive law or is a procedural law the pla being allowed to make an offer of judgment versus rule sixty eight which says the defendant is allowed to make an offer of judgment what your honor i think it's best viewed as procedural meaning that you never get to state law it's a diversity case we apply is how the rule that applies to defendants covers a rule that applies to plaintiffs it apply it covers the situation your honor because congress made a concerted decision not to allow plaintiffs to make offers of judgment in real sixty committee notes one rule sixty eight was adopted show that the that the committee and then through them congress adopted the rules from the practice in various states and practice in those states to down include allowing plaintiffs to make offers so it was a choice to be silent rather than the choice to allow plaintiffs to make offers so this situation is one that's covered by rule sixty eight and if the court has further questions all these are my time thank you you may do that morning our time import for the respondent dean and let me just quickly address this more than one blank argument there's no case law that says adding more than one blank to a damage calculations improper well it does seem to run counter to the requirement that the that there be one lump sum awarded you know wrongful death action in california this is not a not a rule but i've seen in other states necessarily but as i understand it there is supposed to be a single lump sum what that's referring to is the one just one judgment ruling california to prevent other claimants from bringing cereal lawsuits against the defendant and so what that entire law requires is staff it is like procedurally everyone who is a claimant or potential claimant has to be in that lawsuit even for example if they don't want to participate they have to be a nominal defendant because the court has to enter one judgment for all of the claimants however well average out how i read the cases as i read it the quarter jury must compute the damages if any by considering the damage suffered by all the errors and return a verdict a verdict for ones that that's how i understand it which is different than what you're saying you're just joining people in the action well i'm talking about something procedur people let me explain quarter quarter doesn't deal with our case quarter was a dispute over allocation of settlement and that is where you would get a judge involved where the parties agree to a settlement and the two parties can't divide it between themselves then the court  the legislature has made a statutory mechanism for the trial judge to decide that issue what we're dealing with here is how does the plaintiffs want the case presented to the jury and who does the plaintiff want to determine the respect rights between the mom and the dead and here the can if in case it's directly on point it's such a clear issue that can have been tells the courts the following on the first page quote however we recommend trial courts require juries to answer special in iraq the tories stating the amounts they include to compensate each individual claimant to assist in final apportionment of the award and so all the cases recognize that it is our right as the plaintiffs to have the jury decide the different amounts and that's because the jury can decide different amounts for example if i have a daughter that's deceased and she resided with her mother and the parents are divorced and she lived with her mother for ten years and hadn't seen the dead for five years clearly the jury could award different amounts for the loss of love companionship society of that daughter and so what i do in all of my cases is i follow this directive from canada and i have the jury decide what each plaintiff gets then the judge enters one lump sum the case law is clear that we can do this procedure and here's how the case the issue came up in trial the defendant simply objected to our verdict form that had two different amounts for the plaintiffs they didn't cite any case law whatsoever so i don't think they preserve the objection because they didn't engage in the dialogue that he they're engaging in now with the trial judge and it's important to look at are they actually are they articulating their objection in a way that the judge understands it would be illegal error to give the verdict form because we're not in the business of reversing jury verdicts by the defendant simply making an argument without citing case law and not engaging in the argument they're making on appeal they deprived me of the opportunity to address it with the judge they deprive the judge of the opportunity to address it or correct whatever error they're claiming even though there is no error but what i cited in my written support of our verdict form was directly from canas in that the court can have the jury decide different amounts for each p and that is exactly what the judge did the defendant did not then cite any of the cases they're citing now or any of the propositions they're citing now to the judge whatsoever they were silent safety features said we object and so on a waiver level they waive their argument the verdict that the verdict forms defective on a second level it is not defective because the judge did exactly what california law recommends that he does and then third there's no prejudice where's the prejudice to the defendant this statutory mechanism has nothing to do with the defendant in terms of letting the judge decide the amount it's when there's a dispute between the plaintiffs then the court can get involved  allocate but there's no prejudice whatsoever to the defendant they haven't cited any case that even comes close to saying that separating the amounts for the plaintiffs is prejudicial to the defendant i'm gonna move on to the trucking  instruction issue i don't think i need to add much the court i think recognizes that there's no error in giving that instruction there's no reason to reverse the case because of that single instruction even if it were assumed to be erroneous it's not erroneous and i'm the trial attorney i don't think i mentioned how talking at all during the trial in terms of closing argument or the verdict form because if the jury found against the driver then automatically the judgment would be against pal trucking there is no dispute that was agreed to by the parties so i don't have to raise any issue regarding pile i want to ask you about the offers are just right question if it appears to me that inline panel harcourt squarely held th rule sixty eight that that offers a judgment and rule sixty eight pertain to procedural and substantive matters and therefore federal law governs offers of judgement you're procedural question and federal procedure governs that's sort of the end of the story if federal procedure has something that's great and if it doesn't it's if we don't go there i don't read home in y is making that pronouncement that offers of judgment are purely procedural and especially rules rule sixty eight is one sided so it doesn't that's why that's a policy question if if the idea of  basically if i understand what the court was saying in that case is well if you're looking at the amount of prejudgment interest that's a state law question but but officer judgment aren't about the officer judgment are procedural and nature and it's sort of like saying well what if federal discovery rules suddenly don't allow depositions of experts and state law does but if federal procedure governs you can't supplemented by saying well it doesn't cover this issue so therefore we look to state law so that's why it seems to me essential for us to know whether officers of judgment have a concept are a procedural or a substantive matter and that's a great question and i don't think i was briefed by anybody whether the proposition that offers a judgment are purely procedural therefore we don't even look at state court offers it but it is in fact a question we have to answer i don't actually i've never even thought of that question till you asked me i think that i don't want to answer it without being able to brief it because brief it well i mean we've briefed the concept of prejudgment offers a judgment aren't about prejudgment interest per se and it's it's goes on to say the offers of judgment this there the alaska statute cannot be characterized as a substantive pre judgment interest statute it's a procedural offer of judgment for vision of federal procedural rules governing diversity actions and it goes on to say that if there's a conflict with state laws then state laws out the window and that federal rule eight controls i guess i just don't see how you get around that holding what i'm reading from the home and indemnity case i hope we're looking at the same case i'm looking at the very end  what they found there is that because the alaska statute was deemed a penalty well that's not how i read it it says it's not pre judgment interest it's a procedural offer of judgment  and we look to federal procedural rules and rule sixty eight governs over any state offer of judgment provision that's how i read the last five three four paragraph of decision i apologize i don't know what we're looking at is yours forty three f third one three two two yes i'm looking at page one three three two heading head no twenty one and maybe we just read it differently but it seems to me that the entire basis of the decision is that our for so judgment or a procedural matter that are governed exclusively by federal civil procedure well i will agree this issue has not been decided by the ninth circuit so there is no well that's the question because i think because that's i guess that's what we're having the discussion about here honestly you caught me off i didn't see that from this opinion i read the opinion is simply saying that the alaska statute was a penalty and that would violate the federal rules and so they didn't allow the penalty interests in that case but here we're not dealing with the penalty we're dealing with prejudgment interest which is the substantive right which they are and well now we're dealing with offers of judgment and what happens when an offer of judgment what sort of consequence if an offer judgment is or is not accepted that's not pre judge miniatures per se that's what line pal says no i understand i don't agree that this stands for the proposition that the entire field of offers of judgment are covered by federal law and that the state courts cannot address offers of judgment that they would conflict with federal law i don't agree with that because while they can in state court the question is whether in a diversity action it counts as substantive law which is the state's  and we don't i don't agree i don't agree with the reading of this case i don't think that was in its one sentence i mean that says it is a procedural offer of judgment provision but i don't think it's concluding the way you've articulated this whole preemption issue and whether they've occupied it's not a matter of preemption it's a matter of procedure versus substance if if federal rules deal with depositions and they only deal with it a little bit it doesn't it's not a matter of occupying the field it's just a matter of who's law do we look at for rule of decision well i mean in that sort of eerie versus i understand i  would actually like a chance because i don't think the defendant framed the issue that way i would like a chance to brief that because i didn't get a chance to even really think about what you're saying why is that substantive the procedural offer and state court of a plaintive for an offer of judgment why is that substantive law not a procedural because it's pre judgment interest so the courts say that prejudgment interest is a substan procedure it's not like how many depositions can you take it's not like how can you effectuate service it's substantive it's compensating the plaintiffs for not having those funds when they were entitled to those funds it's a substantive statute state of california legislature decided that we're going to set up this mechanism that can recover interest on funds they should have been paid earlier through this offer procedure and when you see interest computed on the offer or what's recovered what's recovered from the date of the offer so that what they're saying is in the wrongful death case had the defendant paid up what they owed the plaintiffs the rifle amount back when the offer was made then the plaintiff would recover those funds and have use of those funds but because the defendant did not and made the case continue they bear the risk of having to compensate the plaintiffs for the lost interest in the use of those funds and so it's a substantive prejudgment issue but i really would because there's no ninth circuit case covering our ninety eight state statute in interest in this whole issue i would like a chance to address your very good question of whether you stop the analysis at you've got a procedure you've got rule sixty eight is a procedure therefore it doesn't matter what state counterparts there are you can't look at them because we've got rule sixteen's a procedure i'd like to proof that it's possible thank you your honor i'd like to start over my friend mr hamann poor last off there's no need for further briefing because we cite in our brief the whole line of one circuit cases addressing state law offers of judgment the holdings that these are under rule sixty eight and rules  an analysis inapplicable in federal court and that point has been adequately covered the one point i want to make is that even if you accept my friend as saying that this is substantive law prejudgment interest there  insuperable procedural obstacles to their recovery of that interest if it's part of their main compensation then they didn't seek it from the fact finder and they didn't make the rule fifty nine emotion to add to the judgement which is what the supreme court said is required in oster nec the winning so whether it's procedural or substantive they can't get that interest only come back to the lump sum verdict issues that were that were debated the waiver argument that my friend made is incorrect if you look at the excerpts of record at pages sixty nine to seventy four both sides submitted competing verdict forms and at the end of each side's proposal the other party was allowed to offer rebuttal as to why that shouldn't be given and in response to the plaintiff's proposal the defendant said don't give this one judgment the lump sum verdict rule that's right there in the proposal then when the issue arose at the instruction conference there was a colloquy the pertinent pages of the transcript appear in the first volume of the ex urbs so this issue was debated that this report was made aware of the issue a new very well that the parties differing positions were there's no way for a second my friend was mentioning the difference between the one judgment rule and the one action rule that's a different rule that requires all errors to band together in a single action we're talking about the lump sum verdict rule that's the one that applies here that was the rule that was violated in this case and i was pleased to hear my friend say that candidate is directly on point because i think in fact can't even shows the error here can  where the trial judge in the california court system required the jury to return a lump sum verdict the plaintiffs didn't like that and they appealed and the court of appeal rejected the plaintiff's argument that it was error not to allow them to get a a verdict form different judges may do it differently and none of them may be abusing their discretion so to say that you don't have to have individual acts doesn't mean that you're for channel one doesn't really answer the question as a matter of strict law just what your honor said is exactly right but canavan and quarter and all the other california cases that have been cited plainly require a lump sum verdict to be returned that's the rule in california now it can be a defendant never makes the argument it doesn't come up but we don't have that situation the issue's been preserved here so we asked this court to recognize that violation of the lump sum verdict rule and that it was harmful and to reverse for a new trial thank you