Filed 2/13/14 Aspell v. Mercury Casualty CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

PATRICK ASPELL et al.,
Plaintiffs and Appellants,

v.
MERCURY CASUALTY COMPANY,
Defendant and Respondent. B244501
(Los Angeles County Super. Ct. No. BC451722)

APPEAL from a judgment of the Su perior Court of Los Angeles County. Joseph R. Kalin and Elizabeth A. White, Judges. Affirmed.

Cohen McKeon, Michael L. Cohen, Heat her M. McKeon; Law Offices of Neil R. Anapol, Neil R. Anapol for Plaintiffs and Appellants.

Hager Dowling Lim & Slack, John V. Ha ger, Benjamin J. Carman, Brian S. Dewey for Defendant and Respondent.

________________ __________________ _________________2 Forty-nine homeowners sued their insu rer, Mercury Casualty Company, claiming that they were inadequately compensated for ash, soot and smoke damage from a nearby wildfire. A jury found in favor of the insurer. Plaintiffs c ontend that (1) the trial court improperly allowed Mercury to present opinion testimony fro m an undesignated expert; (2) the special verdict form was defective; a nd (3) the trial court erroneously denied their motion seeking an apportionmen t of costs. We affirm.
PROCEDURAL HISTORY 1 Plaintiffs made claims against Mercur y for property damage stemming from the
2009 Station wildfire. Their claims were de nied or minimized. The complaint asserts causes of action for breach of contract, bad faith, and unfair business practices. The dispute was tried in 2012. Dozens of witnesses testified and hundreds of
exhibits were admitted. After brief delibera tions, the jury unanimou sly answered “No” to the following question: “Did defendant Mercury Casualty Company fail to pay benefits owed under the insurance policie s issued to any of the plain tiffs?” Judgment was entered in favor of Mercury on July 5, 2012 . Plaintiffs filed a timely appeal.
DISCUSSION 1. Witness Larry Wayne
Plaintiffs contend that the trial court allowed Larry Wayne to testify at trial “despite Mercury’s failure to designate him as an expert of any kind and its failure to disclose Wayne’s identity dur ing discovery.” Citing its appendix page s 239-252, Mercury claims that Wayne is on the Joint Witness List; however, the cited pages do not list Wayne as one of the 110 witnesses that Me rcury intended to presen t at trial, nor is Wayne among the three retained experts an d nine non-retained experts in Mercury’s “written exchange of required expert witness information” served in January 2012. The

1 There is a six-volume reporter’s tran script, yet plaintiffs did not provide a summary of the evidence pr oduced at trial. (See Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 739 [“In every appeal, ‘the appellant has the duty to fairly summarize all of the facts in the light most favorab le to the judgment.’”].)3 list names six of Wayne’s colleagues and th eir mutual employer, Forensic Analytical Consulting Services (FACS), as non-retained experts. During trial, plaintiffs moved to excl ude Wayne from testifying because Mercury did not identify Wayne as a witn ess, so they were unfairly de prived of an opportunity to depose him. Mercury explained to the tria l court that Wayne “is the individual who designed the protocol” used by his FACS coll eague, Steven Takahashi, who was listed as
a witness. Defense counsel claimed that Wayne is on the jo int witness list.
Plaintiffs countered that FACS named Takahashi as the person most knowledgeable, not Wayne. Echoing defense counsel’s mistaken cl aim that Wayne was identified in the joint witne ss list, the trial court asked plaintiffs’ counsel, “When the name was put on the trial list, didn’t that ring a bell somewhere that this is somebody that’s going to testify?” After plaintiffs’ c ounsel replied, “No,” the court said, “Counsel,
if he was on the witness list . . . he could be deposed. He could ha ve been questioned.” Wayne testified regarding FACS test results , supposedly as a percipient witness. Plaintiffs objected repeatedly that Wayne was giving expert testimony regarding the standard for testing for the presence of char and ash. None of the objections were
sustained. The Discovery Act contemplates a mutu al and simultaneous exchange by all parties of a list containing the name of person s whose expert opinion is expected to be
offered in evidence at trial. (Code Civ. Proc., § 2034.210; 2 Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1025.) Un der limited conditions, a party may make a motion to augment the list, but time must be afforded to allow the deposition of the newly added expert. (§§ 2034.610, 2034.620 .) The testimony of an unlis ted expert must be excluded from evidence. (§ 20 34.300.) A party may call an e xpert witness who has not been previously designated to impeac h the testimony of an expert witness offered by another party at trial. (§ 2034.310.)

2 Unlabeled statutory references in this opi nion are to the Code of Civil Procedure.4 Mercury did not comply with the discovery statutes, but was allowed to present the testimony of Larry Wayne because it told the trial court that Wayne was a designated witness. It is bad that Mercury’s counsel or ally misrepresented to the trial court that Wayne was designated as a witness, but wors e that Mercury continues the charade on appeal, when the witness lists are in the record and Wayne’s name is not on them. We cannot reverse the judgme nt just because Mercury presented an undesignated
witness. The constitutional standard for revers al reads, “No judgment shall be set aside . . . on the ground of . . . the improper admissi on . . . of evidence . . . unless, after an examination of the entire cause, including the evidence, the court sha ll be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unle ss it shall appear from th e record that such error, ruling, instruction, or defect was prej udicial, and also that by reason of such error, ruling, instruction, or defect, the said pa rty complaining or ap pealing sustained and suffered substantial injury, and that a differe nt result would have be en probable if such error, ruling, instruction, or defect had no t occurred or existed. There shall be no presumption that error is prejudicial, or that in jury was done if error is shown.” (§ 475.) Plaintiffs contend that “Wayne’s testimony was directly relevant to the amount of damage to Plaintiffs’ homes due to ash, smoke, and soot.” What they fail to demonstrate, however, is why the admission of Wayne’s tes timony resulted in a miscarriage of justice.
Plaintiffs must show that the defendant’s failure to comply with discovery statutes regarding the disclosure of expert witnesse s resulted in a miscarriage of justice. ( Barboni
v. Tuomi (2012) 210 Cal.App.4th 340, 353.) “Prejudice is not presumed, and the burden is on the ap pealing party to demonstrate that a miscarriage of justice has occurred.” ( Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) “To establish prejudi ce, an appellant must show a reasonable probability exists that, in the absence of the error, he or she would have obtained a more favorable result.” ( People ex rel. City of Sa nta Monica v. Gabriel (2010) 186 Cal.App.4th 882, 887.) The burden of showi ng prejudicial error cannot be shifted onto5 respondent, nor does the review ing court have a duty to examine the record to find prejudice. ( Overhill Farms, Inc. v. Lopez (2010) 190 Cal.Ap p.4th 1248, 1268.) Plaintiffs did not give a fair su mmary of the evidence. (See fn. 1, ante. ) Without it, this court cannot determine whether Wa yne’s testimony altered the outcome of the trial. Wayne’s testimony may have been cumulative or merely explanatory of that offered by Steven Takahashi, his colleague at FACS. Conclusory claims of prejudice— or ignoring the issue of prejudice entirely—doe s not satisfy an appealing party’s duty to demonstrate a miscarriage of justice sufficien t to warrant reversal. Plaintiffs had to demonstrate a reasonable probability that they would have obtained a more favorable result had Wayne’s testimony been excluded. Th ey failed to make this showing, so there is no grounds for reversal. Similarly, plainti ffs fail to show that the exclusion of two of
their witnesses altered the outcome. 2. Special Verdict Form The special verdict read, “Did defendant Mercury Casualty Company fail to pay benefits owed under the insurance policies is sued to any of the plaintiffs?” While discussing the verdict form, defense counsel i ndicated that plaintiffs wanted to add the word “all,” so that it would read, “Did defendant Mercury Casualty Company fail to pay
all benefits owed?” Defense counsel asserted that “all” is “argumen tative.” Plaintiffs’ counsel replied that “all” mere ly clarifies whether some bene fits remained to be paid. The trial court accepted the defense argument that the question to be answered by the jury was whether Mercury “failed to pay benefits th at were owed under the insurance policy.” Plaintiffs did not ask the court to give th e standard jury verdic t form for insurance cases, CACI VF-2300. CACI VF-2300 reads, in relevant part, “Did [plaintiff] suffer a loss, [all or part of] which was covered unde r an insurance policy w ith [the insurer]?” Plaintiffs claim they submitted an altern ative verdict form; however, “Plaintiffs’ [Proposed] Special Verdict Form” at pages 415- 428 of the appendix has no superior court file stamp and does not appear to have been submitted to the trial court or served on opposing counsel.6 Critically, plaintiffs did not provide us with a transcript of closing argument, so we cannot see how the verdict form was explained to the jury. When in structional error is claimed, the State Constitution requires a de termination “whether prejudice actually occurred in light of the entire record.” ( Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) This encompasses the evidence, the effect of other instructions, counsel’s arguments, and indications from the jury that it was misled. ( Id. at pp. 580-581.) Given plaintiffs’ inadequate briefi ng on each of these points, ther e is no basis for reversal. 3. Apportionment of Costs Mercury filed a costs memorandum seeking $138,703.56. Plaintiffs moved to tax costs on 12 items, then asked the court to alloca te costs equally among all 49 of them, so that Mercury could not attempt to collect the entire amount from one or two of the plaintiffs. Mercury op posed plaintiffs’ request, noting th at plaintiffs did not object to language in the judgment stating that it was jo int and several. On November 2, 2012, the trial court struck $4,645.90 fro m the costs bill and denied plaintiffs’ untimely request to apportion the costs. The court also rejected plaintiffs’ effort to amend the judgment to apportion costs. On appeal, plaintiffs argue that the trial court’s refusal to appo rtion the costs could potentially cause severe economic hardship, in the event that Mercury exercises its right to collect the entire amount from a single plaintiff. Plaintiffs did not object to the proposed judgment in June 2012, and did not seek to apportion costs until Octobe r 2012, three months after judg ment was entered. When a party submits a proposed judgment to the court, any party affected by the judgment may, within 10 days after service of the proposed judgment, serve and file objections to it. (Rule 3.1590(i)-(j), Cal. Rules of Court.) A plaintiff’s failure to object to a joint judgment (or to the form of the judgment) precludes a claim of error on appeal. ( Miller v.
San Francisco Church Exten. Soc. (1932) 125 Cal.App. 85, 89; Altvater v. Breckenridge (1959) 174 Cal.App.2d 790, 795.) In any event, the precise argument pl aintiffs present here was made—and rejected—in Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370 ( Acosta ).) In Acosta , SI7 Corp. was sued by 101 homeowners for constr uction defects in their Palmdale housing tract. A jury returned a verd ict for the defendant, who then filed a memorandum of costs for $122,795. The plaintiffs opposed the co st bill because it allocated costs jointly and severally, though their claims were separate. ( Id. at p. 1373.) Divi sion Four of this district wrote, “We have found no Californi a authority to support the proposition that a defendant who is sued by several plaintiffs and who fully prevails against all of them bears the burden of apportioning costs where th e plaintiffs were represented by the same law firm and pursued a single cause of action in a joint trial.” ( Id. at p. 1376.) The court added, “It is up to the plaintiffs in a motion to tax costs to point ou t that some costs are not related to the joint theory of liability, but ar e specific to a particular plaintiff, and it is
therefore not fair to include these in a joint award.” ( Ibid. ) Here, 49 homeowners sued a single defendant in joint litig ation on a single theory: Mercury’s alleged failure to pay adequate compensation for smoke, soot and ash damage resulting from a wildfire. “While it is true th at their damages were individual, there was a single theory of liability.” ( Acosta , supra , 129 Cal.App.4th at p. 1379.) As in Acosta , plaintiffs in the case at bench did not argue th at some costs were not related to the joint theory of liability but are specific to a particular plaintiff. (Compare Walker v. Ticor Title Co. of California (2012) 204 Cal.App.4th 363, 374-375 [trial c ourt did not abuse its discretion by allocating $2 million in attorney fees among 19 non-prevailing plaintiffs, using “equitable considerations . . . in appropriate circumstances.”].) Mercury is “entitled to a cost award agains t the plaintiffs jointly, and would then
be entitled to collect that amount as it saw fit from the various plaintiffs. Any plaintiff
who satisfied the cost award would be en titled to seek contribution from the other plaintiffs in a separate action.” ( Acosta , supra , 129 Cal.App.4th at p. 1374.) The trial court did not abuse its discretion by refusing to apportion the costs separately, which would require that Mercury pur sue 49 people for $2,700 each, to recover the costs it is entitled to as the prevailing pa rty. (§ 1032, subd. (b).)8 DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.
We concur:

ASHMANN-GERST, J.

FERNS, J.*

________________ __________________ _______________ ______________ * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.