Filed 6/9/15 Unmodified opinion attached 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

LENA LEE et al., 

Plaintiffs and Appellants, 

 v. 

JOSEPH M. SILVEIRA et al., 

Defendants and Respondents. 

F067723 

(Super. Ct. No. 652893) 

ORDER MODIFYING OPINION 

[No Change in Judgment] 

 It is hereby ordered that the published opinion filed on May 15, 2015, be modified 

as follows: 

1. On page 2, the third full paragraph, beginning “For purposes of” is deleted 

and the following paragraph is inserted in its place: 

 For purposes of determining whether a defendant “fail[e]d to obtain 

a more favorable judgment” under section 998, we conclude that any 

negotiated rate differential included in a jury’s verdict should be subtracted 

from the award before the comparison is made to the offer to compromise 

“for the simple reason that the injured plaintiff did not suffer any economic 

loss in that amount.” (Howell v. Hamilton Meats & Provisions, Inc. (2011) 

52 Cal.4th 541, 548 (Howell).) In other words, the negotiated rate 

differential is not part of the judgment “obtained” in the litigation. 

2. On page 3, the second full paragraph, beginning “Before this personal 

injury” is deleted and the following paragraph is inserted in its place: 

Before this personal injury lawsuit was filed, the California Supreme 

Court granted review of the decision in Howell v. Hamilton Meats & 
2. 

Provisions, Inc. on March 10, 2010, S179115, to address whether the 

“negotiated rate differential”—the difference between the full billed rate for 

medical care and the actual amount paid as negotiated between a medical 

provider and an insurer—is a collateral source benefit under the collateral 

source rule and thus recoverable by the plaintiff as economic damages. 

3. On page 3, footnote 2 is deleted in its entirety, which will require 

renumbering of all subsequent footnotes. 

There is no change in judgment. 

 

 _____________________ 

FRANSON, J. 

WE CONCUR: 

 _____________________ 

KANE, Acting P.J. 

 _____________________ 

POOCHIGIAN, J.
Filed 5/15/15 Unmodified opinion 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

LENA LEE et al., 

Plaintiffs and Appellants, 

 v. 

JOSEPH M. SILVEIRA et al., 

Defendants and Respondents. 

F067723 

(Super. Ct. No. 652893) 

OPINION 

 APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. 

Beauchesne, Judge. 

 Alan Charles Dell’Ario ; The Brandi Law Firm and Daniel Dell’Osso for Plaintiffs 

and Appellants. 

 Morris Polich & Purdy, Richard H. Nakamura, Jr.; Law Office of Murray M. Aron 

and Murray M. Aron for Defendants and Respondents. 

-ooOoo- 
2. 

 In this appeal, a personal injury plaintiff contends the trial court erred in denying 

her request for expert witness fees and prejudgment interest under Civil Code section 

3291. The plaintiff argues she was entitled to such fees and interest, which totaled over 

$350,000, because the defendants “fail[ed] to obtain a more favorable judgment” (Code 

Civ. Proc., § 998)1 than the $1 million offer to compromise she made under section 998. 

The plaintiff contends the proper comparison is between her offer and an 

intermediate judgment based on a jury verdict that included an award for past medical 

expenses in the full amount billed to her, rather than the smaller amount actually paid by 

her insurer under the rates the insurer negotiated with the medical providers. This 

negotiated rate differential (i.e., the difference between the amounts billed and the 

amounts paid) totaled $165,262. When it was subtracted from the verdict, the plaintiff 

recovered less than $1 million in damages. 

For purposes of determining whether a defendant failed to obtain a more favorable 

judgment under section 998, we conclude that any negotiated rate differential included in 

a jury’s verdict should be subtracted from the judgment or award before it is compared to 

the offer to compromise “for the simple reason that the injured plaintiff did not suffer any 

economic loss in that amount.” (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 

Cal.4th 541, 548 (Howell).) In other words, defendants did not “obtain” a judgment that 

included the negotiated rate differential. 

In this case, the trial court correctly reduced the jury verdict by the negotiated rate 

differential before making the section 998 comparison and concluding the judgment 

obtained by the defendants was more favorable than the offer to compromise for $1 

million. 

 We therefore affirm the judgment. 

 

1 All further statutory references are to the Code of Civil Procedure unless noted 

otherwise. 
3. 

FACTS AND PROCEEDINGS 

 On April 29, 2008, plaintiff Lena Lee was injured when her GMC Yukon collided 

with a large manure spreader that defendant Joseph M. Silveira had pulled onto 

Ellenwood Road in front of her. Lee suffered fractures of her hips, leg, elbow and wrist 

and damage to associated nerves, ligaments and tendons. Attempts to settle Lee’s claim 

before the lawsuit was filed were unsuccessful. 

Before this personal injury lawsuit was filed, the California Supreme Court 

granted review of the decision in Howell v. Hamilton Meats & Provisions, Inc. on March 

10, 2010, S179115. The Supreme Court stated it would consider the following issues: 

“(1) Is the ‘negotiated rate differential’[—]the difference between the full 

billed rate for medical care and the actual amount paid as negotiated 

between a medical provider and an insurer—a collateral source benefit 

under the collateral source rule, which allows plaintiff to collect that 

amount as economic damages, or is the plaintiff limited in economic 

damages to the amount the medical provider accepts as payment? (2) Did 

the trial court err in this case when it permitted plaintiff to present the full 

billed amount of medical charges to the jury but then reduced the jury's 

award of damages by the negotiated rate differential?” 2 (See 

<http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?di

st=0&doc_id=1930127&doc_no=S179115>.) 

In April 2010, Lee sued Joseph M. Silveira and Silveira Custom Farming 

(collectively, defendants). 

 

2 The Supreme Court subsequently granted review in other cases from the Courts of 

Appeal addressing whether write-offs obtained by insurance companies through 

negotiations with medical providers were recoverable by the insured as collateral source 

benefits. (Yanez v. SOMA Environmental Engineering, Inc., review granted Sept. 1, 

2010, S184846; King v. Willmett, review granted Oct. 13, 2010, S186151; Felix v. 

Aronson (Mar. 2, 2011, B218160) [nonpub. opn.], review granted May 11, 

2011, S191874; Cabrera v. E. Rojas Properties, Inc., review granted June 8, 

2011, S191826) Once the California Supreme Court granted review, these cases could no 

longer be relied upon as authority. (Cal. Rules of Court, rules 8.1105(e)(1), 8.1115(a).) 
4. 

On August 12, 2010, Lee’s attorney served defendants with a section 998 offer to 

compromise in the amount of $1 million.3 Defendants did not accept the offer which, by 

its terms, lapsed after 30 days. 

 On August 18, 2011, the California Supreme Court filed its opinion in Howell, 

supra, 52 Cal.4th 541 and held that the negotiated rate differential could not be recovered 

by a plaintiff as past medical expenses “for the simple reason that the injured plaintiff did 

not suffer any economic loss in that amount.” (Id. at p. 548.) The court also stated the 

collateral source rule “does not expand the scope of economic damages to include 

expenses the plaintiff never incurred.” (Id. at p. 549.) 

 About a year after the Howell decision, a jury trial began in this case. Defendants 

filed a motion in limine requesting the trial court permit only the introduction into 

evidence of paid medical bills. The court denied the motion, concluding that the amount 

of billed medical expenses was relevant to the question of reasonable past medical 

expenses, future medical expenses and pain and suffering.4 The court indicated that the 

verdict would be reduced to reflect the amount of paid medical expenses. Counsel then 

stipulated that the amount of billed medicals was $274,514.12 and the amount of paid 

medicals for Lee was $109,251.61. 

In September 2012, the jury completed a special verdict form awarding Lee 

damages totaling $1,027,014. The jury explicitly found the past economic loss for Lee’s 

medical expenses totaled $274,514. This was the amount the parties stipulated was billed 

to her. 

 

3 About 20 months later, shortly before the original trial date, defendants made a 

section 998 offer to compromise in the amount of $400,001. 

4 The court noted that the evidentiary issue concerning the relevancy of the billed

amounts was not addressed in Howell. (See Greer v. Buzgheia (2006) 141 Cal.App.4th 

1150, 1154 [appellate court upheld trial court’s denial of defendant’s motion in limine to 

prevent the jury from receiving evidence of medical bills that exceeded the amount paid 

to medical providers on plaintiff’s behalf].) 
5. 

On October 5, 2012, the trial court filed a document labeled “JUDGMENT ON 

JURY VERDICT.” It stated that “Lee is entitled to judgment against Joseph M. Silveira 

in the amount of $1,027,014” and her daughter was entitled to $1,979. It also stated: 

“The judgment is subject to amendment following post trial hearing concerning: 1) 

Plaintiffs’ motion for pre-judgment interest and costs; and 2) the stipulated reduction for 

plaintiffs’ past medical expenses.” 

 Defendants immediately filed a posttrial motion for reduction of jury verdict that 

requested the award for past medical expenses be reduced from the amount charged (i.e., 

$274,514.12) to the amount actually paid by Lee’s insurer (i.e., $109,251.61). Lee 

agreed the deduction for the negotiated rate differential of $165,262 eventually should be 

made, but opposed defendants’ motion on the ground her expert fees and prejudgment 

interest under Civil Code section 3291 should be determined before the negotiated rate 

differential was deducted. 

 The trial court agreed with Lee’s position. The court’s ruling from the bench was 

confirmed in a December 2012 order stating defendants were entitled to a $165,262.51 

reduction of the judgment, but the reduction would be made after determining Lee’s 

entitlement to prejudgment interest and expert witness fees under section 998. 

 Lee filed a memorandum of costs, which included a request for expert witness fees 

totaling $100,300. Defendants filed a motion to strike and tax costs, which was heard by 

the trial court in January 2013. After the hearing, the court filed a written ruling denying 

defendants’ motion to strike and tax costs. 

On February 21, 2013, the court filed a judgment that included Lee’s costs and 

expert witness fees and excluded the negotiated rate differential. The amount of the 

judgment was “$987,398.26 plus pre-judgment interest in the amount of $250,231.07.” 

In April 2013, defendants filed a motion to vacate and modify the judgment under 

section 663. The motion was brought on the ground of “[a]n incorrect or erroneous legal 

basis for the decision, not consistent with or supported by the facts.” Defendants argued 
6. 

there should be no award of costs or prejudgment interest under section 998 because the 

negotiated rate differential should have been deducted from the jury’s verdict before the 

court evaluated Lee’s courtroom success. Defendants argued the legally correct amount 

of the judgment was $887,098.26. 

In May 2013, the trial court filed a written ruling that granted defendants’ motion 

to vacate and modify the judgment. On May 31, 2013, a third judgment was entered in 

the amount of $887,098.26. This amount excluded Lee’s expert witness fees and 

prejudgment interest under Civil Code section 3291. 

 Lee appealed from this judgment and the order granting defendants’ motion to 

vacate and modify the judgment. 

DISCUSSION

I. STANDARD OF REVIEW 

 The question presented in this appeal involves application of section 998, 

subdivision (d) and whether defendants failed “to obtain a more favorable judgment” than 

Lee’s offer to compromise for $1 million. 

Issues of statutory construction as well as the application of that construction to an 

undisputed set of facts are questions of law subject to independent review on appeal. 

(Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 391.) Therefore, we 

will conduct an independent review of the issue presented. 

II. JUDGMENTS AND COMPARISONS 

A. Contentions of the Parties 

 Lee contends that section 998 contemplates “a comparison of the section 998 offer 

with the circumstances as they existed when [defendants] had the opportunity to accept 

the offer.” (Boldface omitted.) Lee also contends that, during the relevant time frame, 

case law held that a plaintiff’s damages included the negotiated rate differential. Lee 

supports her position with the following quote: “Considering the amount of the verdict 
7. 

reduced only by offsets to which it was subject at the time the section 998 offer was 

outstanding is consistent not only with the purpose but is implicit in the language of 

section 998.” (Guerrero v. Rodan Termite Control, Inc. (2008) 163 Cal.App.4th 1435, 

1441 (Guerrero).) 

 Defendants raise the following arguments. First, they contend that Guerrero is 

distinguishable from cases involving negotiated rate differentials and therefore the 

rationale used in Guerrero does not apply in this case. Second, they contend the test 

referring to the status of the litigation at the time of the offer is used to assess the validity 

or reasonableness of the offer, not to determine whether the judgment was more 

favorable. Third, defendants disagree with Lee about the status of the law at the time of 

the offer. In their view, Howell was retroactive and thus should be regarded as the 

applicable law at the time the offer was made. (See Corenbaum v. Lampkin (2013) 215 

Cal.App.4th 1308, 1334-1335 [Howell applied retroactively].) 

 Lee’s reply brief asserts that the retroactivity of Howell is irrelevant to the analysis 

and the parties’ success and failure in this litigation should be evaluated without regard to 

postoffer deductions from the judgment. 

B. Background: Section 998 and Guerrero 

 Section 998 is a cost-shifting statute that uses economic incentives to encourage 

pretrial settlements and avoid needless litigation. (Barba v. Perez (2008) 166 

Cal.App.4th 444, 451.) One economic incentive involves expert witness fees, which 

ordinarily are not recoverable costs. A party who declines an offer to compromise under 

section 998 and fails to obtain a more favorable judgment may be compelled to pay the 

offeror’s expert witness fees incurred during trial. (§ 998, subds. (c) & (d).) Also, 

personal injury defendants who refuse to settle before trial for less than the plaintiff 

recovers at trial must pay interest on the judgment at 10 percent annually from the date of 
8. 

the settlement offer. (Civ. Code, § 3291; see Cadlo v. Metalclad Insulation Corp. (2009) 

172 Cal.App.4th 1040, 1042.) 

 A major dispute in this case concerns whether the principles used in Guerrero

should be extended to reductions based on negotiated rate differentials. 

In Guerrero, the plaintiff who purchased a house with dryrot sued the home’s 

seller, the real estate agent, and the home inspection firm. (Guerrero, supra, 163 

Cal.App.4th at p. 1438.) Ten months after the suit was filed, the inspection firm served 

the plaintiff with a section 998 offer to compromise for $5,000. (Guerrero, supra, at p. 

1438.) The plaintiff did not accept the offer. (Ibid.) Over two years later, shortly before 

the start of trial, the plaintiff entered a judicially approved good faith settlement with the 

real estate agent for $34,000. (Id. at p. 1439.) The case went to trial against the 

inspection firm and the jury awarded $15,600 to the plaintiff. (Ibid.) The inspection firm 

then filed a motion under section 877 to offset the settlement amount against the verdict. 

(Guerrero, supra, at p. 1439.) The trial court granted the motion and reduced the 

judgment to zero. (Ibid.) The inspection firm moved to tax the costs the plaintiff 

incurred after its $5,000 offer to compromise was served. (Ibid.) The trial court denied 

the inspection firm’s motion to tax costs. (Ibid.) The appellate court affirmed the denial. 

(Id. at p. 1446.) 

 In Guerrero, the issue presented on appeal was “whether, for the purpose of 

allocating costs under section 998, a plaintiff whose judgment is reduced to zero by 

operation of section 877 can be deemed to have ‘obtain[ed] a more favorable judgment or 

award’ than a rejected section 998 offer to pay $5,000.” (Guerrero, supra, 163 

Cal.App.4th at p. 1440.) The appellate court determined the plaintiff had obtained a more 

favorable judgment, stating: 

“[I]n determining whether plaintiff obtained a ‘more favorable judgment or 

award’ than a section 998 offer, the objective of encouraging settlement 

requires consideration of the status of the litigation when the section 998 

offer was submitted. In the present case, when [the inspection firm] 
9. 

submitted its $5,000 offer early in the litigation, plaintiff had recovered 

nothing by way of settlement or otherwise and had a valid claim against 

[the inspection firm] that the jury later determined to be worth substantially 

more than the $5,000 than [the inspection firm] offered. Plaintiff thus did 

not reject an offer that the outcome of trial indicates should have been 

accepted. Even if [the inspection firm’s] offer was not so low as to have 

been in bad faith, there is still no reason why [the inspection firm] should 

be rewarded for having submitted the offer, nor is there any reason to 

penalize plaintiff for having rejected it. The costs that plaintiff incurred 

subsequent to rejecting the $5,000 offer were incurred in pursuit of a claim 

with a value of at least $15,600. Regardless of the offset based on 

subsequent developments in the litigation, plaintiff was justified in rejecting 

the offer when he rejected it. 

“The situation would have been very different if [the inspection 

firm] had submitted a section 998 offer for $5,000 after plaintiff had 

accepted $34,000 in settlement from Help–U–Sell. In that event, plaintiff 

would have been required to evaluate the likelihood of recovering at least 

$39,000 from [the inspection firm]. Had he rejected such an offer at that 

time, it would be entirely consistent with the objectives of section 998 to 

shift the burden of subsequently incurred costs to him. However, because 

there had been no such settlement when [the inspection firm] made its 

offer, plaintiff had occasion to evaluate only the prospects of recovering 

more than $5,000. Since plaintiff did in fact recover more than that amount 

and obtained a verdict against [the inspection firm] for more than that 

amount, there is no reason to give [the inspection firm] a windfall benefit 

because other defendants later decided to settle for an amount that offset 

plaintiff’s verdict against it. 

“... Considering the amount of the verdict reduced only by offsets to 

which it was subject at the time the section 998 offer was outstanding is 

consistent not only with the purpose but is implicit in the language of 

section 998.” (Guerrero, supra, 163 Cal.App.4th at p. 1441.) 

 Based on this analysis, the appellate court concluded the trial court correctly 

determined the plaintiff had obtained a judgment or award more favorable than what he 

would have received, at the time the section 998 offer was in effect, if he had accepted 

the offer. (Guerrero, supra, 163 Cal.App.4th at p. 1445.) As a result, the court affirmed 

the decision that the inspection firm was not entitled to shift the cost burden to plaintiff 

pursuant to section 998. (Guerrero, supra, at p. 1446.) 
10. 

C. Analysis

1. State of the Law 

First, we consider the disagreement between the parties regarding the state of the 

law regarding the recovery of negotiated rate differentials at the time Lee made her 

section 998 offer to compromise. 

 Five months before Lee’s attorney served defendants with the offer to 

compromise, the Supreme Court had granted review in Howell. Therefore, the law 

regarding the recovery of negotiated rate differentials was unsettled at the time of the 

offer. As a result, this uncertainty regarding recoverable damages was one of the factors 

an objectively reasonable attorney and client would have considered when evaluating the 

offer to compromise. 

In reaching this conclusion, we reject the more extreme positions urged by the 

parties regarding the status of the law in August 2010. At that time, objectively 

reasonable persons could have made different predictions of how the Supreme Court 

would resolve the issue. Therefore, uncertainty existed as to how the Supreme Court 

would rule and how that ruling might affect pending cases. 

Accordingly, Lee has not established one of the foundations for her position—

namely, that at the time of her offer she was entitled to recover the negotiated rate 

differential. 

2. Amount of Judgment or Award 

 In Guerrero, the court addressed how to handle an offset to the damages awarded 

in the jury verdict based on a good faith settlement approved pursuant to section 877. 

That offset (1) was based on money actually received by the plaintiff from another 

defendant and (2) the money received related to damages that were compensable under 

applicable law. 

In contrast, Lee received no money from another defendant and had no money 

paid on her behalf. Moreover, Lee did not suffer an economic loss in the amount of the 
11. 

negotiated rate differential. As a result, defendants in this case are not seeking a windfall 

benefit from money paid by a third party. Instead, defendants ask that the judgment in 

this case be evaluated based on what the law allowed Lee to recover. In defendants’ 

view, to hold otherwise would subject them to additional liability based on the legally 

erroneous amount awarded by the jury. 

Based on the dissimilarities between this case and the offset made in Guerrero, we 

conclude that Guerrero’s rule about evaluating whether a litigant obtained a “more 

favorable judgment” for purposes of section 998 before taking certain offsets does not 

extend to reductions for negotiated rate differentials. Therefore, our conclusion is based 

on the following statutory interpretation: When a jury’s verdict awards damages for 

losses not suffered by the plaintiff or for damages not allowed by law, those damages 

must be excluded when determining whether the defendant failed “to obtain a more 

favorable judgment or award” for purposes of section 998, subdivision (d). 

Our approach to Guerrero means that defendants in different lawsuits will be 

treated the same for purposes of section 998 regardless of (1) whether the trial court 

makes the reduction for the negotiated rate differential after the jury has rendered a 

verdict or (2) whether the jury is instructed that its award of reasonable past medical 

expenses shall not exceed the amount actually paid. These two categories of defendants 

would be similarly situated at the time of the offer to compromise and, therefore, we can 

identify no reason for treating defendants in the first category less favorably than 

defendants in the second category. 

3. Statutory Text 

 Because the issue presented in this case is ultimately one of statutory 

interpretation, we will explain our conclusion using the specific language appearing in 

section 998, subdivision (d). 
12. 

The relevant text provides that a plaintiff may recover postoffer costs if “the 

defendant fails to obtain a more favorable judgment or award ....” (§ 998, subd. (d).) 

Therefore, the issue can be phrased as what judgment or award did the defendant obtain. 

The statute does not define the word “obtain” and, therefore, we infer that the Legislature 

intended it to be given its ordinary meaning. The verb “obtain” means “to gain or attain 

possession or disposal of usu. by some planned action or method” and “to bring about or 

call into being : EFFECT.” (Webster’s 3d New Internat. Dict. (1993) p. 1559, col. 2.) 

Therefore, the verb “obtain” suggests an active connection between the defendants’ 

conduct of the litigation and the judgment achieved. 

 In this case, defendants’ decision to reject the $1 million offer to compromise and 

go to trial brought about a judgment requiring them to pay $887,098.26. They were not 

liable for (i.e., required to pay Lee) the $1,027,014 mentioned in the October 2012 

judgment because that document expressly stated it was subject to amendment following 

the hearing concerning “the stipulated reduction for plaintiffs’ past medical expenses.” 

Furthermore, this statement about a reduction reflected the trial court’s earlier handling of 

the motion in limine, where the court allowed evidence of the amount billed for medical 

expenses and stated it would implement Howell by reducing the award of past medical 

expenses to the amount paid. Thus, the $1,027,014 figure in the October 2012 judgment 

was never more than a transitional figure and not the one ultimately obtained by 

defendants. Instead, plaintiffs’ plan of action to go to trial resulted in the judgment or 

award of $887,098.26 and this is the amount of the judgment they obtained for purposes 

of section 998. 

This interpretation and application of the verb “obtain” is consistent with the result 

in Guerrero. The plaintiff in Guerrero decided to go to trial against the inspection firm 

and obtained an award of $15,600 as a result of his plan of action and effort. (Guerrero, 

supra, 163 Cal.App.4th at p. 1439.) The judgment or award for zero dollars ultimately 
13. 

entered against the plaintiff in favor of the inspection firm was the result of (i.e., obtained 

by) the postoffer settlement paid by real estate agent, not the inspection firm’s efforts. 

III. PROCEDURAL ISSUE 

A. Motions under Section 663 

The grounds for a motion to vacate a judgment are set forth in section 663, which 

provides in part: 

“A judgment or decree, when based upon a decision by the court, or the 

special verdict of a jury, may, upon motion of the party aggrieved, be set 

aside and vacated by the same court, and another and different judgment 

entered, for either of the following causes, materially affecting the 

substantial rights of the party and entitling the party to a different judgment: 

[¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with 

or not supported by the facts; and in such case when the judgment is set 

aside, the statement of decision shall be amended and corrected.” 

B. Contentions of the Parties

Lee contends defendants pursued the wrong remedy when they filed their motion 

to vacate and modify the February 2013 judgment under section 663. Lee argues that 

defendants’ “proper remedy was to bring a motion for a new trial directed to the 

judgment entered October 5, 2012. [Their] non-statutory motion for a [negotiated rate 

differential] reduction effectively functioned as a motion for new trial, particularly in 

light of Lee’s failure to object. [Citation.] When the trial court denied it, [defendants 

were] left with the choice of accepting the ruling or appealing. Another round of posttrial motions was not an option.” In short, Lee contends “the court had no power to 

entertain the motion.” 

In response, defendants contend that Lee did not raise this issue below and, 

therefore, it should be deemed waived. Defendants also contend their motion for a 

reduction of jury verdict was not the equivalent of a motion for new trial because, among 

other things, the parties’ stipulation rendered a new trial unnecessary. Defendants also 

contend the October 2012 judgment was tentative and left issues open and, therefore, the 
14. 

February 2013 judgment qualifies as a “judgment” subject to a motion to vacate under 

section 663. 

C. Analysis 

First, we agree with defendants that the document filed on October 5, 2012, and 

labeled “JUDGMENT ON JURY VERDICT” was not a final, appealable judgment. Its 

own terms indicated it was an interim or temporary description of the results of the jury 

trial and did not constitute a final resolution of the whole controversy. The document 

explicitly stated is was subject to amendment following a posttrial hearing concerning the 

stipulated reduction in Lee’s past medical expenses. 

Second, defendants’ motion, which was labeled “POST-TRIAL MOTION FOR 

REDUCTION OF JURY VERDICT,” was an appropriate way to address the legal issue 

left open in the October 2012 “JUDGMENT ON JURY VERDICT.” (See Sanchez v. 

Strickland (2011) 200 Cal.App.4th 758 [defendant in auto accident case filed a motion 

for adjustment or reduction of verdict amounts to reflect amount of past medical expenses 

actually paid to medical providers]; see Olsen v. Reid (2008) 164 Cal.App.4th 200, 203, 

fn. 2 [what form a motion to reduce judgment should take is unclear and need not be 

decided because evidence did not demonstrate the amount plaintiff and her insurer 

actually paid; trial court erred in reducing the jury verdict].) 

Third, because the October 2012 document was not a final judgment and the 

February 2013 document labeled “JUDGMENT ON JURY VERDICT” was a final 

judgment—the first entered in this case—defendants could challenge the legal 

correctness of that document by filing a motion to vacate a judgment under section 663 

and the trial court had the power to hear and decide such a motion. 

Therefore, we reject Lee’s procedural argument that the trial court had no power to 

consider defendants’ motion to vacate the judgment. 
15. 

DISPOSITION 

The May 2013 judgment is affirmed. Defendants shall recover their costs on 

appeal. 

 _____________________ 

FRANSON, J. 

WE CONCUR: 

 _____________________ 

KANE, Acting P.J. 

 _____________________ 

POOCHIGIAN, J.