NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUAN MEDINA and RAMONA MEDINA, Plaintiffs - Appellees,
v. PILE TRUCKING, INC.; et al., Defendants - Appellants. No. 13-55441 D.C. No. 2:11-cv-06329-PJW
MEMORANDUM *

JUAN MEDINA and RAMONA MEDINA, Plaintiffs - Appellees,
v. PILE TRUCKING, INC.; et al., Defendants - Appellants. No. 13-55637 D.C. No. 2:11-cv-06329-PJW

Appeals from the United States District Court for the Central District of California Patrick J. Walsh, Magi strate Judge, Presiding 

# FILED
FEB 25 2015 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.Argued and Submitted February 12, 2015 Pasadena, California Before: GRABER and WARDLAW, Circuit Judges, and MOLLOY, ** Senior District Judge. Alvin Flynn, Pile Trucking, Inc., and Ea rl Pile Trucking (collectively, “Pile Trucking”) appeal a $2,625,000 judgmen t and a $238,047.95 award of interest entered against them and in favor of Juan and Ramona Medina 1 following a jury trial in a wrongful-death suit. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the judgment but vacate the award of interest. 1. The district court erred in providing the jury with a verdict form that included separate blank lines for the aw ards of damages to Juan and Ramona, allowing a jury verdict with two sums for damages. In a wrongful death action under California law, “‘the court or jury must compute the damages, if any, by considering the pecuniary damage suffered by all the heirs and return a verdict for
one sum .’” Corder v. Corder , 161 P.3d 172, 176 (Cal. 2007) (quoting Watkins v. Nutting , 110 P.2d 384, 388 (Cal. 1941)). Here, the verdict form permitted the jury to return separate awards, and the ju ry did so—awarding $1,750,000 to Juan and

** The Honorable Donald W. Molloy, Se nior District Judge for the U.S. District Court for the District of Montana, sitting by designation. 1 For ease of reference, we refer to each of the Appellees by his or her first name. 2$1,750,000 to Ramona. After taking into account the jury’s comparative fault finding, the district court aggregated those awards for a joint judgment of $2,625,000.00. Pile Trucking, however, has not demonstrated that it was prejudiced by the verdict form. It has not cited to any cas e law or presented any evidence in support of its contention that a jury supplied with two blank lines is likely to award greater damages than a jury supplied with only one blank line. Because the purpose of the lump-sum rule is to protect plaintiffs, not defendants, we do not presume prejudice. See Robinson v. W. States Gas & Elec. Co. , 194 P. 39, 43 (Cal. 1920). 2. The district court’s jury instructions did not erroneously introduce a theory of liability that was absent fro m the case. In analyzing whether jury instructions fairly and adequately cove r the issues presented, we review the instructions as a whole rather than in isolation. Gulliford v. Pierce Cnty. , 136 F.3d 1345, 1348 (9th Cir. 1998). Reading the instructions as a whole, it is clear that the only theory of liability presented to the jury was that Flynn acted negligently, and that Pile Trucking was vicariously liable for the negligence of Flynn, its employee. Instruction Number 18, when viewed in context, did not introduce a theory of direct liability against Pile Trucking.

33. The district court erred in aw arding the Medinas $238,047.95 in interest pursuant to California’s offer-of-judgment statute. See Cal. Civ. Code § 3291. Offers of judgment are procedural in natu re and, therefore, are governed by Federal Rule of Civil Procedure 68 under Erie Railroad Co. v. Tompkins , 304 U.S. 64 (1938). See Home Indem. Co. v. Lane Powell Moss & Miller , 43 F.3d 1322, 1332 (9th Cir. 1995). Because Rule 68 permits only defendants to serve offers of judgment, the district court’s award of in terest to the Medinas based on their prior offer of judgment was improper. We therefore vacate the award of interest. AFFIRMED in part, VACATED in part, and REMANDED. Each side shall bear its own costs.

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