Filed 9/26/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

RACHEL FERNANDEZ et al.,

Plaintiffs and Respondents,

v.

ELBA JANETH JIMENEZ et al.,

Defendants and Appellants.

 B281518

 (Los Angeles County

 Super. Ct. No. BC511347)

APPEAL from a judgment and postjudgment order of the 

Superior Court of Los Angeles County, Malcolm H. Mackey, 

Judge. Affirmed.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup and 

Allison A. Arabian for Defendant and Appellant Elba Janeth

Jimenez.

Dentons US and Charles A. Bird for Defendant and 

Appellant Maria Elena Rodriguez.

* Pursuant to California Rules of Court, rules 8.1105 and 

8.1110, this opinion is certified for publication with the exception 

of parts II and III of the Discussion.
2

Carpenter, Zuckerman & Rowley, Gary S. Lewis and 

John C. Carpenter for Plaintiffs and Respondents.

In this wrongful death action, a jury awarded the 

deceased’s four children $11,250,000 each in noneconomic 

damages. Elba Janeth Jimenez, who killed the children’s mother 

while driving drunk, and Maria Elena Rodriguez, who 

negligently entrusted her car to Jimenez, appeal the judgment on 

the ground it is excessive. Jimenez also contends that the trial 

court improperly awarded prejudgment interest. We affirm the 

judgment and postjudgment order.

BACKGROUND

I. The lawsuit

Claudia Fernandez died on June 16, 2012 when an 

intoxicated Jimenez lost control of her car and struck Claudia, 

killing her. Claudia’s children sued Jimenez. They also sued

Rodriguez, whose car Jimenez was driving, for wrongful death

under a negligent entrustment theory.

1 At the jury trial, 

Jimenez, but not Rodriguez, conceded liability. The following 

evidence was elicited.

II. Claudia’s death

By June 16, 2012, Rodriquez and Jimenez had lived 

together for five years but had known each other longer. On that 

day, they were at a party where Rodriguez saw Jimenez have at 

least three shots of tequila. When they left the party, Jimenez 

drove them in one car to Jimenez’s mother’s house where

1 Plaintiffs sued other entities and people, but they were 

dismissed before trial and are not parties to this appeal. 
3

Rodriguez had left her second car. Jimenez refused to give 

Rodriguez the keys to the car and drove away. Soon thereafter, a 

police officer noticed Jimenez driving erratically. She evaded 

him, exited the freeway, and crashed into a taco truck, where 

Claudia was buying food. Jimenez killed Claudia and one other 

person.2

Although Rodriguez admitted to a police officer the day 

after the accident that she felt Jimenez was not okay to drive, 

Rodriguez maintained at trial that she saw nothing in Jimenez’s 

behavior and knew of nothing in Jimenez’s history to lead her to 

believe Jimenez was too drunk to drive that night. 

When she died, Claudia was just 38 years old and the 

single mother of four children: Rachel Fernandez, Jeremy Valle, 

Donovan Valle, and Ryan Valle.

3

III. Rachel 

At the time of the accident, Rachel was 22 years old. She 

was 26 at trial. Rachel described Claudia as a “cool mom” and 

her best friend. Claudia always wanted to have family time, and 

one of the things they liked to do together was go to the movies. 

Claudia and Rachel particularly loved shopping together. Rachel 

described her mother as a hard worker who worked at an animal 

2 Jimenez was convicted of two counts of second degree 

murder, of evading an officer, of driving under the influence 

(DUI), and of DUI with a blood alcohol level over .08 causing 

injury. Jimenez is serving a 30-year-to-life sentence for the 

murders. 

3 We refer to Claudia and her children by their first names 

for the sake of clarity, intending no disrespect.
4

hospital. Claudia was organized and provided the structure that

is now missing from their lives. Claudia also provided emotional 

support. When Rachel was a senior in high school, she had low 

self-esteem and was trying to lose weight before prom. One day, 

Rachel discovered Post-its on her bedroom walls telling her she 

was beautiful. 

When the accident happened, Rachel was living on her own 

and studying child development at college. Sometimes her 

mother would bring her lunch. After her mother died, Rachel 

stopped attending college because she could not concentrate and 

lost interest in working with children. She also stopped working 

for several months. Although she wants to return to school, she 

now does in-home care for people with disabilities. Her goal is to 

become a nurse. 

When her mother died, Rachel “checked out.” But, when it 

came time for her brothers to go back to school, she “clocked back 

in” because “it had to be done. They had to go to school.” 

Although the extended family thought the boys should live 

with their grandmother, Rachel decided to raise her brothers, so

she obtained legal custody of them. In many ways, this has made 

her a better person: she is more responsible and has a different 

perspective on life. Still, she feels that her life is on hold. 

Although Rachel and her brothers had a good sibling 

relationship when their mother was alive, Claudia’s death has 

driven a wedge between them. Her death put a lot of pressure on 

them, and Jeremy, as the oldest boy, has felt it especially. While 

Rachel can control her youngest brother, Ryan, she cannot 

control Donovan and Jeremy. 
5

The siblings went to grief counseling once, but they did not 

like talking to a stranger. Rachel felt it did not help her. Rachel 

and Jeremy also had some joint sessions.

The children visit their mother’s grave on Mother’s Day, 

Father’s Day, Claudia’s birthday, and Christmas. Rachel 

explained, they visit on Father’s Day because Claudia “played 

both roles.” 

Rachel still misses family dinnertime when they would talk 

about their day, waking on Sunday mornings to loud Mexican 

music, and her mother’s laughter. 

IV. Jeremy

When his mother died, Jeremy was 14 years old and was

finishing his sophomore year in high school. At that time he had 

C’s and D’s in his classes. He had a D average his junior year, 

and a C average his senior year. After Claudia died, Jeremy lost 

interest in school and did not graduate because he was not 

“emotionally” “okay.” Rachel encouraged him to enroll in adult 

school, but he quit after a week. 

Currently, Jeremy is a professional gamer and is 

developing a game for kids. He first got into gaming when his 

mother bought him a Nintendo 64. 

Grief counseling helped him a “small amount.” 

Claudia had a boyfriend whom Jeremy considered to be his 

father, but he left when Claudia died. 

When his mother was alive, they had family picnics at the 

park. Jeremy described his former family life as what one sees in 

films and reads about in books: “[w]e actually did that.” 
6

V. Donovan

At the time of his mother’s death, Donovan was 12 years 

old. At trial, he was 16 years old. Since Claudia died, he has 

attended three high schools because they moved a lot. Donovan

is always napping. After school, he comes home and naps. Then 

he gets up and plays video games or watches TV until 1:00 a.m.

or 2:00 a.m., when he goes to sleep. 

Donovan was not like this when Claudia was alive, when 

he had, in his words, a “happy life.” He and his mom had special 

routines; for example, every time she took him to the dentist,

they would eat at Tom’s Jr. Burgers. Claudia had Donovan play 

baseball, and she was always with him. But now he, like his 

brothers, is into TV, which Rachel thinks is a form of distraction. 

Although Donovan is smart, Claudia was the one who 

motivated him. He had been getting A’s and B’s when his mother 

was alive. With her gone, Donovan is passing only five of his 

eight classes. 

Donovan has shut down after his mom died. He keeps his 

feelings inside and has anger issues, and Rachel fears he will 

blow up. Before, Donovan used to walk away when he was mad 

but now he can become physical. Once, he hit a wall and dented 

it, and he has fought with Jeremy. 

VI. Ryan 

Ryan was 10 years old when his mother died. At trial, he 

was 14 years old and a freshman in high school. Ryan has a 

hearing disability and kids take advantage of him. Ryan had 

grief counseling in middle school. Now, his goal is to pass his 

classes.
7

VII. The jury’s verdict and posttrial motions

The jury found that Rodriguez negligently entrusted her 

car to Jimenez. The jury awarded Claudia’s children $11,250,000

each in noneconomic damages, comprised of $5,625,000 for past 

damages and $5,625,000 for future damages. The total damage 

award therefore was $45 million.

Rodriguez and Jimenez moved for a new trial on the 

ground, among others, that the damages were excessive. The 

trial court denied the motion. 

Based on defendants’ failure to accept a settlement offer 

under Code of Civil Procedure section 998 (998 offer), plaintiffs 

filed a memorandum of costs asking for $7,145,376 in 

prejudgment interest. Defendants moved to tax costs on the 

ground they never received the 998 offer. The trial court denied 

the motion.

DISCUSSION

I. Excessive damages

In a wrongful death action, “damages may be awarded that, 

under all the circumstances of the case, may be just.” (Code Civ. 

Proc., § 377.61.) A plaintiff in a wrongful death action is entitled 

to recover damages for his or her pecuniary loss, “which may 

include (1) the loss of the decedent’s financial support, services, 

training and advice, and (2) the pecuniary value of the decedent’s 

society and companionship.” (Nelson v. County of Los Angeles

(2003) 113 Cal.App.4th 783, 793.) However, the plaintiff may not 

recover for the grief or sorrow attendant upon the death of a 

loved one, or for his or her sad emotions and for the sentimental 

value of the loss. (Ibid.) “Factors relevant when assessing a 

claimed loss of society, comfort, and affection may include the 
8

closeness of the family unit, the depth of their love and affection, 

and the character of the deceased as kind, attentive, and loving.” 

(Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 

721.) “The pecuniary value of the society, comfort, and protection 

that is lost through the wrongful death of a spouse, parent, or 

child may be considerable in cases where, for instance, the 

decedent had demonstrated a ‘kindly demeanor’ toward the 

statutory beneficiary and rendered assistance or ‘kindly offices’ to 

that person.” (Corder v. Corder (2007) 41 Cal.4th 644, 661–662.)

The amount of damages to be awarded is a question of fact 

committed, first to the discretion of the trier of fact, and then to 

the discretion of the trial court on a motion for new trial. (Seffert 

v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506 (Seffert).) 

An appellate court gives great weight to the determinations of 

the jury and the trial court. (Id. at pp. 506–507.) “The amount to 

be awarded is ‘a matter on which there legitimately may be a 

wide difference of opinion.’ ” (Id. at p. 508.) We can interfere if 

the verdict is so large that, “at first blush, it shocks the 

conscience and suggests passion, prejudice or corruption on the 

part of the jury.” (Id. at p. 507.) There is no fixed standard by 

which we can determine whether a jury’s award for this 

intangible loss of comfort and society is excessive. (Rufo v. 

Simpson (2001) 86 Cal.App.4th 573, 615.) In the absence of some 

factor in the record such as inflammatory evidence, misleading 

instructions or improper argument by counsel that would suggest 

the jury relied upon improper considerations, we usually defer to 

the jury’s discretion. (Ibid.) The fact that the verdict is very 

large does not alone compel the conclusion the award was 

attributable to passion or prejudice. (Ibid.) In assessing a claim 

that the jury’s award of damages is excessive, we do not reassess 
9

the credibility of witnesses or reweigh the evidence. We consider 

the evidence in the light most favorable to the judgment, 

accepting every reasonable inference and resolving all conflicts in 

its favor. (Westphal v. Wal-Mart Stores, Inc. (1998) 68 

Cal.App.4th 1071, 1078.)

Here, Rodriguez and Jimenez, either collectively or 

individually, make four arguments why the damage awards 

should be reversed: they shock the conscience when compared to 

other verdicts, plaintiffs’ counsel preconditioned the jury to 

award large damages, counsel introduced evidence about 

Jimenez’s prior DUI, and counsel improperly urged the jury to 

punish Jimenez.

A. Comparative analysis

Jimenez and Rodriguez contend that an award of 

$11,250,000 to each plaintiff shocks the conscience when 

compared to other verdicts. Comparing verdicts, however, is of 

limited utility. While an appellate court “should consider the 

amounts awarded in prior cases for similar injuries, obviously, 

each case must be decided on its own facts and circumstances. 

Such examination demonstrates that such awards vary greatly. 

[Citations.] Injuries are seldom identical and the amount of pain 

and suffering involved in similar physical injuries varies widely.” 

(Seffert, supra, 56 Cal.2d at p. 508.) Our California Supreme 

Court reiterated this point in Bertero v. National General Corp.

(1974) 13 Cal.3d 43. There, in reference to the defendants’ 

compilation of judgments which had been reversed as excessive, 

the court stated, “Those cases do not, in and of themselves, 

mandate a reversal here. The vast variety of and disparity 

between awards in other cases demonstrate that injuries can 

seldom be measured on the same scale. The measure of damages 
10

suffered is a factual question and as such is a subject particularly 

within the province of the trier of fact. For a reviewing court to 

upset a jury’s factual determination on the basis of what other 

juries awarded to other plaintiffs for other injuries in other cases 

based upon different evidence would constitute a serious invasion 

into the realm of factfinding. [Citations.] Thus, we adhere to the 

previously announced and historically honored standard of 

reversing as excessive only those judgments which the entire 

record, when viewed most favorably to the judgment, indicates 

were rendered as the result of passion and prejudice on the part 

of the jurors.” (Id. at p. 65, fn. 12; see Pool v. City of Oakland

(1986) 42 Cal.3d 1051, 1067–1068, fn. 17 [awards in other cases 

of no value in assessing propriety of damages in case before it].) 

Seffert, Bertero, and Pool thus instruct that other verdicts may 

have some slight relevance, but each verdict stands or falls on its 

own merits.

4

A review of just a few cases the parties cite demonstrates

why comparing verdicts is of limited value, given the varying 

facts, circumstances, and procedural postures. One Court of 

Appeal upheld a jury award of $2 million to each of the three 

deceased’s adult children where there was evidence they had a 

close relationship. (Soto v. BorgWarner Morse TEC Inc. (2015) 

239 Cal.App.4th 165, 172–173, 181–183.) Another Court of 

Appeal upheld a jury award of $750,000 to each of the deceased’s 

two adult children even though they had not seen their father in 

years and only maintained their relationship by phone. 

4 Based on Seffert, Bertero, and Pool, we deny Jimenez’s 

request for judicial notice of verdicts in other cases and of the

consumer index price inflation calculator. 
11

(Mendoza v. City of West Covina, supra, 206 Cal.App.4th at 

pp. 706, 720–721.) In Shore v. Gurnett (2004) 122 Cal.App.4th 

166, a drunk driver killed a bicyclist, whose wife and two sons

then sued for wrongful death. The jury awarded them $7.5 

million in compensatory damages, which were not challenged on 

appeal. (Id. at p. 170.) Boeken v. Philip Morris USA Inc. (2013) 

217 Cal.App.4th 992, 996 upheld a judgment of $12.8 million for 

loss of consortium to the decedent’s son against an instructional 

error challenge. An older case upheld a $1.5 million award of 

compensatory damages to the decedent’s disabled minor child. 

(Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d 

709, 726–727.) 

These cases, like the one before us, involve the loss of a 

parent. Still, they are of marginal use in evaluating whether 

$11,250,000 to each of Claudia’s four children is excessive. None 

of the cases or the ones the parties cite involve the murder of a 

loved and loving single mother, whose death has made orphans of 

four children, three of whom were then minors. The youngest, 

Ryan, was just 10 years old when his mother died. If he has a 

normal life expectancy, he will have suffered her absence for 

perhaps 30 years or more, as Claudia was just 38 years old when 

she was killed. Jeremy and Donovan were both still in school 

when Claudia died. Their deteriorating academic and social lives 

reflect the absence of her guidance and motivating presence. As 

for Rachel, she has made the weighty decision to be both mother 

and sister to her brothers, thereby forever altering her life 

trajectory. Further, the undisputed evidence is that each child 

was individually close to Claudia and that they were a tight-knit 

family unit. We cannot conclude that, on these facts, the verdict 

shocks the conscience. 
12

B. Preconditioning the jury

Jimenez and Rodriguez contend that plaintiffs’ trial counsel 

improperly preconditioned the jury during voir dire to award 

inflated damages, and Jimenez further argues that such 

preconditioning amounted to attorney misconduct.

5 We disagree.

Attorney misconduct is an irregularity in the proceedings 

and a ground for a new trial. (City of Los Angeles v. Decker

(1977) 18 Cal.3d 860, 870.) To preserve for appeal an instance of 

misconduct of counsel during voir dire, an objection must have 

been lodged and the objecting party must also have moved for a 

mistrial or sought a curative admonition unless the misconduct 

was so persistent that an admonition would have been 

inadequate to cure the resulting prejudice. (Cassim v. Allstate 

Ins. Co. (2004) 33 Cal.4th 780, 794–795.) Even where there is 

misconduct, the moving party must demonstrate that the 

misconduct was prejudicial so as to justify a new trial. (Id. at 

p. 800.)

In a civil jury trial, the judge “shall permit liberal and 

probing examination calculated to discover bias or prejudice with 

regard to the circumstances of the particular case.” (Code Civ. 

Proc., § 222.5, subd. (b)(1).) Improper questioning during voir 

dire includes any “question that, as its dominant purpose, 

attempts to precondition the prospective jurors to a particular 

result, indoctrinate the jury, or question the prospective jurors 

5 Jimenez refers to this as “anchoring,” where counsel 

suggests a high damage figure as a starting point. (See generally 

Chapman & Bornstein, The More You Ask for, the More You Get: 

Anchoring in Personal Injury Verdicts (1996) 10 Applied 

Cognitive Psychology 519.)
13

concerning the pleadings or the applicable law.” (Id., § 222.5, 

subd. (b)(3).) Examination of prospective jurors should not be 

used “ ‘ “to educate the jury panel to the particular facts of the 

case, to compel the jurors to commit themselves to vote a 

particular way, to prejudice the jury for or against a particular 

party, to argue the case, to indoctrinate the jury, or to instruct 

the jury in matters of law.” ’ ” (People v. Fierro (1991) 1 Cal.4th 

173, 209.)

Here, defendants argue that plaintiffs’ trial counsel 

preconditioned the jury to award high damages by asking if they 

would be okay awarding $200 million dollars. Or, as Rodriguez 

puts it, counsel encouraged jurors to think they were playing 

with Monopoly money by introducing the $200 million number. 

Plaintiffs’ counsel, however, did not introduce that number. 

Rather, when a juror said she could be fair, counsel told the jury 

that plaintiffs may be asking for “hundreds of millions of dollars 

collectively for four of them” and asked whether that shocked 

anyone. Juror No. 14 and, it appears, the jurors generally, 

agreed that was a shocking number. When plaintiffs’ counsel 

then asked if anybody thought they could not “have a judgment of 

hundreds of millions of dollars,” the trial court sustained defense 

counsel’s objection and said it would instruct the jury on what 

factors to consider in awarding damages. A juror then asked if 

the question was whether he could award “$200 million-plus” and

the trial court pointed out that “we don’t know the amount.” The 

trial court then framed the question: “Could you award 

substantial damages” if the facts called for it? When plaintiffs’ 

counsel pressed as to what trouble jurors would have with a 

demand in the hundreds of millions of dollars, the trial court 
14

repeated that “we’re not getting into that.” A prospective juror6

then commented, “I couldn’t even imagine hundreds of millions of 

dollars.” 

Plaintiffs’ counsel then told the jurors that they could not 

consider whether defendants “could afford it or not,” and the trial 

court added that whether someone can afford to pay a judgment 

was not a proper question. Counsel, however, said the point of 

the questions was to tell jurors to make a decision about the 

value of plaintiffs’ loss without “considering the consequences of 

the poverty of the defendant.” Upon a juror’s further inquiry 

about collecting judgments, the trial court repeated that “[w]e 

don’t get into collecting” and that the jury would be instructed on 

that issue.

Based on this voir dire, defendants moved for a mistrial, 

but the trial court denied the motion. Thereafter, plaintiffs did 

ask for $200 million, or $50 million for each plaintiff. 

This background shows that plaintiffs’ trial counsel did not 

introduce that number. A juror introduced it. In any event, this 

was not improper preconditioning. Jurors may be informed of the 

damages a plaintiff seeks. (Beagle v. Vasold (1966) 65 Cal.2d 

166, 170–171; Wegner et al., Cal. Practice Guide: Civil Trials and 

Evidence (The Rutter Group 2018) ¶¶ 5:311, 5:312, p. 5-74.) As 

to counsel’s admonishment that the jury should not consider the 

defendants’ financial circumstances, it is proper to ask 

prospective jurors whether they will apply the law as instructed 

by the trial court. (See People v. Tolbert (1969) 70 Cal.2d 790, 

812.) 

6The reporter’s transcript indicates that a witness made 

the statement, but we assume it was a juror.
15

Moreover, even if informing prospective jurors that 

plaintiffs were seeking hundreds of millions of dollars and that 

jurors should not consider defendants’ financial circumstances 

was error, it was not prejudicial. To evaluate prejudice, we 

examine “ ‘the entire case, including the evidence adduced, the 

instructions delivered to the jury, and the entirety of [counsel’s] 

argument,’ in determining whether misconduct occurred and 

whether it was sufficiently egregious to cause prejudice. 

[Citation.] ‘Each case must ultimately rest upon a court’s view of 

the overall record, taking into account such factors, inter alia, as 

the nature and seriousness of the remarks and misconduct, the 

general atmosphere, including the judge’s control, of the trial, the 

likelihood of prejudicing the jury, and the efficacy of objection or 

admonition under all the circumstances.’ ” (Garcia v. ConMed 

Corp. (2012) 204 Cal.App.4th 144, 149.) 

We cannot agree that the limited voir dire at issue inflamed 

the passions of the jury, especially given the evidence we detailed 

above. The jury awarded much less than $50 million per 

plaintiff, suggesting the plaintiffs’ demand for $200 million did 

not inflame the jury’s passions. Moreover, the trial court 

instructed the jury that no specific amount was yet before it, and 

the jury was otherwise properly instructed on damages with 

CACI Nos. 3901 (introduction to tort damages, liability 

established), 3902 (noneconomic damages), 3905 (items of 

noneconomic damage), and 3921 (wrongful death of an adult). 

The trial court also instructed the jurors not to consider punitive 

damages to punish defendants (CACI No. 3924). 

C. Jimenez’s prior DUI conviction

Jimenez had a prior DUI conviction from 2005. Rodriguez 

was in the car with Jimenez during the events underlying that 
16

conviction. Before trial, plaintiffs sought to introduce the

conviction to establish Rodriguez’s knowledge about Jimenez’s

“decision making” when she is intoxicated. The trial court

excluded the evidence under Evidence Code sections 1101, 

subdivision (a), and 352. At trial, plaintiffs’ counsel asked 

Rodriguez about that conviction. Jimenez—but not Rodriguez—

now contends that plaintiffs’ counsel deliberately tried to inflame 

the jury’s passions by asking Rodriguez about the excluded 

evidence. 

We do not agree. At trial, plaintiffs’ counsel asked 

Rodriguez if she had ever been a passenger in a car driven by 

Jimenez while Jimenez was intoxicated. Rodriguez said she had 

not. When plaintiff’s counsel then asked, “Not even in 2005?” 

Defense counsel objected, citing the in limine ruling, and the trial 

court sustained the objection. Plaintiffs’ counsel then moved to 

impeach and asked the question again. Rodriguez now answered, 

“Yes, now I remember.” She also answered yes, that Jimenez had 

been convicted of a DUI based on the incident.7 Defense counsel 

did not object to these questions.

The motion in limine did not preclude this evidence. Once 

Rodriguez denied ever having driven with an intoxicated

Jimenez, the conviction no longer was the issue; Rodriguez’s 

credibility was the issue. Jimenez’s conviction and that 

Rodriguez was with her during the events underlying the 

conviction directly spoke to that issue. Moreover, defense counsel 

did not object to the follow-up questions, which elicited that 

Rodriguez knew about Jiminez’s prior DUI conviction. We 

7 Plaintiffs’ counsel referenced the DUI in closing 

arguments. 
17

therefore do not agree that plaintiffs’ counsel blatantly 

disregarded the trial court’s evidentiary rulings to inflame the 

passions of the jury.

We also fail to see how this limited impeachment evidence 

was inflammatory. Jimenez had conceded liability for Claudia’s 

wrongful death, and the jury knew that Jimenez was serving a 

substantial sentence in prison for second degree murder. That 

Jimenez had a prior DUI was not inflammatory vis á vis this 

other evidence. 

D. Punishment

Rodriguez next argues that plaintiffs improperly engaged 

the passions of the jury by setting a theme of punishment in 

opening statement and in closing argument. In his opening 

statement, counsel explained that Rodriguez negligently let 

Jimenez drive Rodriguez’s car, knowing that Jimenez was drunk. 

However, Rodriguez “wants to wash her hands of the death of 

these people.”8 Counsel continued that Rodriguez denied

responsibility for giving her car to Jimenez but Rodriguez 

nonetheless bore responsibility for Claudia’s death and “cannot 

wash her hands.” 

Counsel repeated that refrain in his closing statement. 

After going through the special verdict questions, counsel argued 

that Rodriguez played a role in Claudia’s death and “can’t wash 

her hands of it” and “needs to know that what she did was 

wrong.” Counsel immediately then discussed the consequences of 

Rodriguez’s behavior, i.e., how much money would reasonably 

8 At this point, defense counsel objected and the trial court 

told plaintiffs’ counsel to “stick to facts.” 
18

compensate plaintiffs for the loss of their mother. In concluding, 

counsel likened Claudia to a valuable, one-of-a-kind piece of art. 

What defendants took “from this family is really, really, really 

valuable. And our community has said so, and said so loudly and 

said so clearly so she could hear it loud and clearly, too, so she

won’t be walking around saying, ‘I did nothing wrong.’ ”

Viewing counsel’s statements in the context of his whole 

argument (see People v. Centeno (2014) 60 Cal.4th 659, 667), he

was arguing that Rodriguez bore responsibility for Claudia’s 

death, and hence could not “wash her hands” and escape paying 

damages. He was not arguing that Rodriguez should be 

punished. Indeed, the jury was instructed with CACI No. 3924

not to award damages to punish or to make an example of 

defendants. We therefore see no argument, much less a “theme,” 

that any defendant had to be punished.

II. Apportionment of damages

In a wrongful death action, “[t]he court shall determine the 

respective rights in an award of the persons entitled to assert the 

cause of action.” (Code Civ. Proc., § 377.61.) Thus, after a jury 

trial, the trial court apportions the award among the plaintiffs. 

However, this rule is a procedural, not jurisdictional, one. 

(Corder v. Corder, supra, 41 Cal.4th at p. 652.) As such, it can be 

waived. (Ibid.) Defendants waived or forfeited any right to have 

the trial court apportion the judgment. While reviewing the 

proposed special verdict, plaintiffs’ counsel said the jury either 

could award damages to each plaintiff or it could award a lump 

sum and have the trial court divide damages among them. The 

only concern defense counsel then raised was about a proposed 

instruction directing jurors to award a single amount for all 

plaintiffs and stating that the trial court would divide the 
19

amount. Defense counsel agreed to strike that portion of the 

instruction so that the jurors could award damages to each 

plaintiff individually. The trial court then instructed the jury 

that each plaintiff was entitled to separate consideration of his or 

her claims. Defense counsel therefore assented to the jury 

apportioning damages.

III. The 998 offer and prejudgment interest

A 998 offer is an offer to compromise. If a plaintiff makes a 

998 offer to settle a lawsuit that the defendant does not accept, 

and the plaintiff then obtains a more favorable judgment, the 

defendant must pay various costs, including prejudgment interest 

at a rate of 10 percent from the date of the offer. (Civ. Code, 

§ 3291.) Here, each plaintiff mailed a 998 offer to Rodriguez and 

Jimenez to compromise the action for $1 million ($4 million 

total). The same day, plaintiffs mailed 998 offers to the 

dismissed defendants who are not parties to this appeal. 

Rodriguez and Jimenez, who were represented by the same 

counsel below, did not respond to the 998 offers, although at least 

one nonappealing defendant did respond. When plaintiffs 

obtained a recovery larger than their 998 offers, they asked for 

prejudgment interest in their memorandum of costs. Rodriguez 

and Jimenez moved to tax the prejudgment interest, claiming 

that their counsel never received the 998 offers. The trial court 

denied the motion.

Jimenez now contends that prejudgment interest should 

not have been awarded for two reasons. First, her defense 

counsel never received the 998 offers. Second, they were invalid 

as unreasonable.
20

A. Receipt of the 998 offers

Evidence Code section 641 creates a rebuttable 

presumption that a letter correctly addressed and properly 

mailed has been received in the ordinary course of mail. “The 

effect of a presumption affecting the burden of producing 

evidence is to require the trier of fact to assume the existence of 

the presumed fact unless and until evidence is introduced which 

would support a finding of its nonexistence, in which case the 

trier of fact shall determine the existence or nonexistence of the 

presumed fact from the evidence and without regard to the 

presumption. Nothing in this section shall be construed to 

prevent the drawing of any inference that may be appropriate.”

(Evid. Code, § 604.) The presumption may be rebutted by the 

intended recipient’s denial of receipt. (Bear Creek Master Assn. v. 

Edwards (2005) 130 Cal.App.4th 1470, 1486.) In that case, the 

trier of fact weighs the denial against the inference of receipt 

from proof of mailing and decides whether the letter was 

received. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 

422.) “Although the presumption disappears where . . . it is met 

with contradictory evidence, inferences may nevertheless be 

drawn from the same circumstances that gave rise to the 

presumption in the first place.” (Id. at p. 421.) 

Per the proofs of service attached to the 998 offers, 

plaintiffs were entitled to the presumption under Evidence Code 

section 641. However, Jimenez rebutted that presumption by 

submitting evidence she never received the 998 offers. 

Defendants submitted declarations describing how defense 

counsel’s mailroom forwards settlement offers to the handling 

attorney’s assistant with a high priority. Trial counsel’s assistant 

denied seeing a 998 offer in the case. Otherwise, she would have 
21

scanned the offers, emailed them to the insurance adjuster, and 

given copies to the handling attorney. She also would have sent a 

letter to the carrier advising it of the 998 offers. Defendants’ trial 

counsel also denied receiving plaintiffs’ 998 offers. Further, he 

denied receiving the fifteen other 998 offers that plaintiffs made 

to the nonappealing defendants.

In these respects, this case is like Bonzer v. City of 

Huntington Park (1993) 20 Cal.App.4th 1474. In Bonzer, the City 

of Huntington Park moved for relief under Code of Civil 

Procedure section 473, claiming it had not received notice of a 

hearing. The city submitted extensive evidence from, among 

others, mailroom staff, a secretary, and the chief of police stating 

it had not receive notice of a hearing. Bonzer found that the 

presumption under Evidence Code section 641 had been rebutted. 

The “only remaining effect of the ‘[p]roof of [s]ervice’ declaration 

was to enable the trial court to draw ‘any inference that may be 

appropriate.’ ” (Bonzer, at p. 1481.) Up to this point, we agree 

with Bonzer. 

Where we part ways with Bonzer v. City of Huntington 

Park, supra, 20 Cal.App.4th 1474 is in its application of the 

standard of review. Bonzer went on to hold that, in light of the 

city’s evidence, any inference that notice had been received was 

inappropriate, under Evidence Code section 604. To similarly 

reach that conclusion here would contravene the standard of 

review. Although we review de novo whether the civil costs 

statute permits a party to claim an expense as a reimbursable 

cost, we otherwise review a trial court’s ruling on a motion to tax 

costs for abuse of discretion. (Naser v. Lakeridge Athletic Club

(2014) 227 Cal.App.4th 571, 575–576; Crews v. Willows Unified 

School Dist. (2013) 217 Cal.App.4th 1368, 1379.) Under the 
22

deferential abuse of discretion standard, we may reverse only if 

we conclude that the trial court’s decision was so irrational, 

arbitrary or capricious that no reasonable person could agree 

with it. (Ghadrdan v. Gorabi (2010) 182 Cal.App.4th 416, 421.) 

Here, the trial court weighed plaintiffs’ evidence that on 

the same day they mailed multiple 998 offers to Rodriguez and 

Jimenez and to the nonappealing defendants, against Jimenez’s 

evidence that her attorney received none of the offers. The trial 

court made an express credibility determination that, 

notwithstanding defendant’s evidence, “I am going to find that 

you did receive it. I am listening to the testimony here, and you 

did receive it.” Such a credibility call is binding on appeal. 

(Craig v. Brown & Root, Inc., supra, 84 Cal.App.4th at p. 421.) 

Thus, even if we agreed that the evidence was in equipoise, we 

would not find the trial court’s conclusion to be arbitrary or 

capricious, given its credibility determination and that there was 

a substantial basis for its conclusion, i.e., the proofs of service. 

B. Reasonableness of the 998 offers

Next, Jimenez contends that the 998 offers were

unreasonable because plaintiffs knew that the policy limit was 

$15,000 and that she was otherwise in prison with no assets or 

ability to pay. We do not agree that these factors rendered the 

998 offers invalid.

Rather, a 998 offer is valid if made in good faith. (Licudine 

v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 924.) 

Its reasonableness is determined by considering the 

circumstances when the offer was made and the information used 

to evaluate it. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 

Cal.App.3d 692, 699.) Reasonableness generally is measured by 

first determining whether the offer represents a reasonable 
23

prediction of the amount of money, if any, defendant would have 

to pay plaintiff after a trial, discounted by an appropriate factor 

for receipt of money by plaintiff before trial, all premised on 

information that was known or reasonably should have been 

known to the defendant, and if an experienced attorney or judge, 

standing in the defendant’s shoes would place the prediction 

within a range of reasonably possible results, the prediction is 

reasonable. (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 

1103, 1112–1113.) Second, was plaintiff’s information known to 

defendant? (Id. at p. 1113.) 

As to the first inquiry, the 998 offers of $1 million for each 

plaintiff were clearly within the range of reasonably possible 

results. Indeed, Jimenez’s cases cited in her opening brief 

establish that million dollar judgments for the loss of a parent is 

a reasonable prediction. (See, e.g., Soto v. BorgWarner Morse 

TEC Inc., supra, 239 Cal.App.4th 165.) Moreover, where, as 

here, the offeror obtains a judgment more favorable than its offer, 

the judgment constitutes prima facie evidence the offer was 

reasonable. (Elrod v. Oregon Cummins Diesel, Inc., supra, 195 

Cal.App.3d at p. 700.) As to the second inquiry, Jimenez makes 

no argument that there was information about plaintiffs she did 

not know that would have been necessary to evaluate the offer. 

Rather, Jimenez’s sole basis for arguing the offers were 

unreasonable is her inability to pay. However, the 

reasonableness of a 998 offer is based on what the victim might 

reasonably get at trial. Reasonableness of what a plaintiff’s claim 

is worth is not dependent on what the defendant can afford or 

what the plaintiff ultimately may be able to collect. Stated 

otherwise, a tortfeasor’s financial status does not circumscribe 

the reasonableness of an offer. Jimenez’s policy limit of $15,000 
24

thus does not bear on the reasonableness of the 998 offers. By 

such logic, would any 998 offer above a minimal amount to an 

uninsured driver be unreasonable?9 Clearly, the answer is no.

DISPOSITION

The judgment and postjudgment order are affirmed. 

Respondents are awarded their costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION.

DHANIDINA, J.

We concur:

EDMON, P. J.

HANASONO, J.*

9 Where the record shows that a plaintiff has reason to 

believe an insurance company may be liable for a judgment in 

excess of its policy limits, that may speak to a plaintiff’s good 

faith belief in making a 998 offer in excess of such limits. 

(Aguilar v. Gostischef (2013) 220 Cal.App.4th 475.) We have no 

such record here and make no comment on whether one could be 

made. 

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.