
    [No. B236875.
    Second Dist., Div. Five.
    July 9, 2013.]
    DYLAN BOEKEN, Plaintiff and Appellant, v. PHILIP MORRIS USA INC., Defendant and Appellant.
    [CERTIFIED FOR PARTIAL PUBLICATION]
    
      Counsel
    Law Offices of Michael J. Piuze, Michael J. Piuze, Geraldine Weiss; Esner, Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiff and Appellant.
    Munger, Tolles & Olson, Daniel P. Collins, Bram Alden; Shook, Hardy & Bacon and Patrick J. Gregory for Defendant and Appellant.
    
      
      Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of Discussion, parts II. and III.
    
   Opinion

MOSK, J.

INTRODUCTION

Richard Boeken (Richard) brought an action against Philip Morris USA Inc. (Philip Morris) seeking damages for lung cancer he developed from smoking Philip Morris cigarettes and was awarded compensatory and punitive damages. He died while the verdict was on appeal. (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640 [26 Cal.Rptr.3d 638] (Richard’s action).) In this case, Dylan Boeken (Dylan), Richard’s son, brought a wrongful death action against Philip Morris for Richard’s death and recovered $12.8 million for loss of consortium.

On appeal, in the published portion of this opinion, we discuss and reject Philip Morris’s contentions that the trial court failed to instruct the jury on the proper measure of Dylan’s damages. Relying on Blackwell v. American Film Co. (1922) 189 Cal. 689 [209 P. 999] (Blackwell), Philip Morris contends that when a personal injury plaintiff who was fully compensated in a lawsuit for his injuries and resulting physical incapacity dies from those injuries, a surviving child’s wrongful death loss of consortium damages are measured from the decedent’s postinjury diminished condition at the time of death. Also in the published portion of this opinion, as to Dylan’s cross-appeal, we hold he may not recover interest on his award because his Code of Civil Procedure section 998 (section 998) offer of settlement did not include the statutorily required “provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.”

In the unpublished portion of this opinion, we deal with Philip Morris’s contentions concerning another jury instruction and the application of collateral estoppel. We affirm the judgment and order.

FACTUAL AND PROCEDURAL BACKGROUND

In Richard’s action, the “jury found that Philip Morris products consumed by [Richard] were defective either in design or by failure to warn prior to 1969, resulting in injuries to [Richard]. The jury also found liability to [Richard] based upon fraud by intentional misrepresentation, fraudulent concealment, false promise, and negligent misrepresentation, concluding that [Richard] had justifiably relied upon fraudulent utterances and concealment by Philip Morris.” (Boeken v. Philip Morris, Inc., supra, 127 Cal.App.4th at pp. 1649-1650.) The jury awarded Richard compensatory damages of over $5.5 million and punitive damages in an amount that ultimately was reduced on appeal to $50 million. (Ibid.) Richard died while that verdict was on appeal. (Id. at p. 1649, fn. 1.)

Richard’s widow, Judy Boeken, acting for herself and Dylan, filed an action against Philip Morris seeking wrongful death damages. Her wrongful death claim was dismissed on the ground it was barred by the res judicata effect of a voluntary dismissal with prejudice of her prior action. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788 [108 Cal.Rptr.3d 806, 230 P.3d 342].)

In his second amended complaint for wrongful death, Dylan alleged that Richard died on January 16, 2002, from injuries caused by Philip Morris products. Dylan had claims for negligence, strict liability (failure “to give warnings and/or instructions prior to July 1, 1969”), and fraudulent concealment. Dylan asserted that “offensive collateral estoppel applies to the issues of liability and causation of the injury which subsequently caused” Richard’s death and sought damages for loss of consortium and funeral and burial expenses. Dylan later limited his claims based on Philip Morris’s fraudulent concealment to the period prior to July 1, 1969. Prior to trial, Dylan served on Philip Morris an offer to allow judgment under section 998 in the amount of $4.95 million, which offer Philip Morris did not accept.

Prior to trial, Philip Morris moved for an order that offensive collateral estoppel did not apply to preclude it from relitigating its liability. The trial court denied the motion. The trial court also denied Philip Morris’s requests to instruct the jury that Dylan’s damages for loss of consortium were to be based on Richard’s condition as it existed at the time of Richard’s death and to modify an instruction on wrongful death damages to state explicitly that Dylan could not recover for any emotional injuries.

At trial, Dylan called a number of witnesses who testified that Richard was a good father who had a close relationship with Dylan throughout Dylan’s childhood and up to the time of Richard’s death. Philip Morris did not call any witnesses who challenged the nature of Dylan’s relationship with his father, and does not raise on appeal the admissibility or substance of the testimony of Dylan’s witnesses on that subject.

At the close of Dylan’s case, Philip Morris moved for a directed verdict, arguing that Dylan had not shown compensable damages by measuring the damages from the condition of Richard at the time of his death. The trial court denied the motion. The jury returned a verdict for Dylan, awarding him $12.8 million in damages. Philip Morris moved for a judgment notwithstanding the verdict, arguing that Dylan failed to show damages under the proper measure of damages. It also moved for a new trial, in part, on the grounds that the trial court erred in instructing the jury on the measure of Dylan’s damages and in applying offensive collateral estoppel to the issue óf its liability. The trial court denied Philip Morris’s motions.

Dylan moved for an award of prejudgment interest pursuant to Civil Code section 3291 (section 3291) on the ground that the jury’s verdict exceeded his section 998 offer. The trial court, in denying the motion, ruled that Dylan’s section 998 offer was invalid because it did not contain the required acceptance provision that allowed Philip Morris to indicate that it accepted the offer by signing a statement in the offer that it was accepted.

Philip Morris appeals from the judgment. Dylan cross-appeals from the trial court’s order denying prejudgment interest.

DISCUSSION

I. • Dylan’s Damages

Philip Morris contends that when, as here, a personal injury plaintiff (Richard) who brought an action in which he was fully compensated for his injuries and resulting physical incapacity dies from those injuries, his child’s (Dylan’s) damages in a subsequent wrongful death action—here, loss of consortium damages—are based on the decedent’s postinjury diminished condition at the time of death. Philip Morris argues that the application of such a rule would, in effect, prohibit any recovery to Dylan—presumably on the theory that Richard, due to his lung cancer, was unable to provide Dylan any comfort, society, or protection at the time of Richard’s death.

“Unlike some jurisdictions wherein wrongful death actions are derivative, Code of Civil Procedure section 377.60 ‘creates a new cause of action in favor of the heirs as beneficiaries, based upon their own independent pecuniary injury suffered by loss of a relative, and distinct from any the deceased might have maintained had he survived. [Citations.]’ [Citations.]” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 283 [87 Cal.Rptr.2d 222, 980 P.2d 927].) Under Code of Civil Procedure section 377.61, damages for wrongful death “are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society, and protection. (Corder v. Corder (2007) 41 Cal.4th 644, 661 [61 Cal.Rptr.3d 660, 161 P.3d 172] (Corder).)” (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 720 [141 Cal.Rptr.3d 553] (Mendoza).)

In Boeken v. Philip Morris USA, Inc., supra, 48 Cal.4th at pages 795 through 796, our Supreme Court explained: “Originally, the recovery in wrongful death actions was limited to ‘pecuniary injury’ (Stats. 1862, ch. 330, § 3, p. 448), which some courts interpreted to mean that only economic losses were compensable (such as loss of financial support or household services). As early as 1911, however, we recognized the right of wrongful death plaintiffs to recover noneconomic damages, including damages for loss of society and comfort, so long as the damages were not based merely on grief or sorrow. (See Bond v. United Railroads of San Francisco (1911) 159 Cal. 270, 285-286 [113 P. 366].) In Krouse v. Graham (1977) 19 Cal.3d 59, 67-70 [137 Cal.Rptr. 863, 562 P.2d 1022], we confirmed that loss of consortium damages are recoverable in wrongful death actions.” California permits recovery in a child’s wrongful death action for loss of a parent’s consortium. (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 451 [138 Cal.Rptr. 302, 563 P.2d 858].)

Philip Morris contends that the Supreme Court in Blackwell, supra, 189 Cal. 689 established what the proper measure of Dylan’s damages should have been—i.e., damages based on Richard’s postinjury diminished condition at the time of Richard’s death. In Blackwell, Edward Blackwell’s leg was injured in an automobile accident. (Id. at p. 692.) He brought an action for his injuries and recovered $13,762. (Id. at p. 693.) While the judgment was on appeal, Mr. Blackwell died from shock following an operation on his leg. (Id. at pp. 692-693.) The judgment, which was affirmed, was paid to Mr. Blackwell’s wife, Rachel Blackwell, as administratrix of his estate. (Id. at p. 693.)

Mrs. Blackwell then brought a wrongful death action and recovered $10,000. (Blackwell, supra, 189 Cal. at pp. 692-693.) On appeal, the defendant argued that the trial court erred in refusing to give two instructions to the effect that the jury, in estimating damages, “could consider the physical condition of [the] decedent immediately prior to his last operation, in determining the probable amount of financial assistance he would have rendered to his widow and children.” (Id. at p. 702, italics added.) The court rejected the defendant’s argument because the jury had been instructed at the defendant’s request with an instruction that was substantially similar to the two refused instructions. (189 Cal. at p. 702.) Mrs. Blackwell disputed the soundness of the instruction given, as well as the two rejected instructions. (Ibid.) The court said, “The question in this case was what pecuniary loss was suffered by respondent and her children by reason of the loss of decedent in his crippled condition.” (Id. at p. 697.) The court added, “[A]s already pointed out, decedent was fully compensated for the injuries sustained by him and for his resulting physical incapacity and in estimating the pecuniary loss resulting to [Mrs. Blackwell] by virtue of his death it was necessary to take into consideration his crippled condition.” (Id. at p. 702.)

Philip Morris concludes from Blackwell, supra, 189 Cal. 689, that “where the defendant has already been required to fully compensate the decedent for the harm of reducing him from his pre-injury healthy condition to his pre-death diminished condition, his heirs cannot collect a second time for that reduction in the decedent’s condition in a wrongful death case.” Thus, according to Philip Morris, loss of consortium damages are to be determined by considering only the decedent’s postinjury physical condition at the time of his death.

At trial, Philip Morris requested two instructions consistent with its view of the proper measure of damages based on its interpretation of the holding in Blackwell, supra, 189 Cal. 689. Those instructions would have required the jury to determine Dylan’s damages based on the “conditions existing at the time of death” and to consider “[t]he health of the deceased . . . immediately before death.” The trial court denied the requests. The trial court also denied Philip Morris’s motions for a directed verdict, for a judgment notwithstanding the verdict and for a new trial on the asserted ground that Dylan had failed to show damages under what Philip Morris argued was the proper measure of damages.

Philip Morris overstates the relevant holding in Blackwell, supra, 189 Cal. 689. Reasonably read, the holding by the court in Blackwell applies to lost economic support and not to lost consortium. The instructions at issue in Blackwell concerned damages for the “financial assistance [Mr. Blackwell] would have rendered to his widow and children” (id. at p. 702, italics added)—i.e., the pecuniary loss of economic support—and not the pecuniary value of the “loss of [his] comfort, society, protection, nurture and education” (id. at p. 701).

In describing Mr. Blackwell’s recovery in his personal injury action, the court in Blackwell, supra, 189 Cal. 689 stated, “The verdict and judgment in that action established the fact that he was damaged to the extent fixed by the verdict, and this represents his decreased earning capacity, injuries, pain and suffering.” (Id. at pp. 696-697.) Thus, the court reasoned, the question in Mrs. Blackwell’s subsequent wrongful death “case was what pecuniary loss was suffered by [her] and her children by reason of the loss of decedent in his crippled condition.” (Id. at p. 697.) Because Mr. Blackwell had been compensated for his decreased earning capacity in his personal injury action, Mrs. Blackwell could not recover again for those damages in her wrongful death action. That is, in determining Mrs. Blackwell’s economic support damages, the jury was to consider Blackwell’s decreased earning capacity caused by his “crippled condition.” As the court stated in Fein v. Permanente Medical Group (1985) 38 Cal.3d 137 [211 Cal.Rptr. 368, 695 P.2d 665], “In Blackwell v. American Film Co. (1922) 189 Cal. 689, 700-702 [209 P. 999], we held that in a wrongful death case, a jury was properly instructed that in computing damages it should consider the amount the decedent had obtained from defendant in an earlier judgment as compensation for the impairment of his future earning capacity.” (Id. at pp. 154-155; see 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, §§ 1168, 1187, pp. 530-531, 554-557.)

Philip Morris contends that the court in Blackwell dealt with “pecuniary loss” that included both loss of consortium as well as “the probable amount of financial assistance.” (Blackwell, supra, 189 Cal. at 702.) We read the court’s discussion of the decedent’s “condition . . . immediately prior to his last operation” as concerning only “the probable amount of financial assistance he would have rendered to his widow and children.” (Ibid.)

To read Blackwell, supra, 189 Cal. 689, as does Philip Morris, makes little sense. Blackwell dealt with a concern about a double recovery (id. at p. 702), which is not an issue in a loss of consortium claim brought by a decedent’s child. According to Philip Morris, had Richard lived without lung cancer, but been killed instantly by some other tortious means, Dylan would have been entitled to recover against the tortfeasor; but because Richard died a long, agonizing death caused by Philip Morris, Dylan is entitled to no recovery. Or, as argued by Dylan, under Philip Morris’s contention, if two people, are hit in a crosswalk by an automobile and one is killed instantly and the other dies in a week from severe injuries, the child of the first accident victim would be entitled to loss of consortium damages but the child of the second accident victim would not. Our 1922 Supreme Court could not have intended such an absurd result. As Justice Cardozo wrote in 1920, “we are not to close our eyes as judges to what we must perceive as men.” (People ex rel. Alpha Portland Cement Co. v. Knapp (1920) 230 N.Y. 48, 63 [129 N.E. 202].) Or as another jurist recently observed, “There is enough unavoidable absurdity in life. We should avoid absurdity in the law.” (Zack v. Tucker (11th Cir. 2013) 704 F.3d 917, 927.)

Accordingly, the trial court in this case did not err in refusing Philip Morris’s two proposed jury instructions, and in denying its request to modify CACI No. 3921, its motion for a directed verdict, its motion for a judgment notwithstanding the verdict, and its motion for a new trial, all of which were based on the erroneous ground that Dylan’s loss of consortium damages were to be measured from Richard’s physical condition at the time of his death.

II.-III

IV. Prejudgment Interest

According to Dylan, the trial court erred when it denied his motion for prejudgment interest under section 3291 on the ground that his section 998 offer to allow judgment failed to include a provision allowing Philip Morris to accept the offer by signing a statement that the offer was accepted. Dylan asserts that we should interpret section 998’s language that such an “acceptance provision” “shall” be included in a section 998 offer as “directive” and not “mandatory.” The trial court did not err because the acceptance provision was mandatory and Dylan’s section 998 offer therefore was invalid.

A. Standard of Review

We review de novo issues of statutory construction. (Barner v. Leeds (2000) 24 Cal.4th 676, 683 [102 Cal.Rptr.2d 97, 13 P.3d 704].)

B. Application of Relevant Principles

Prior to trial, Dylan served a section 998 offer to allow judgment against Philip Morris in the amount of $4.95 million. Philip Morris did not accept the offer. Following a jury trial, Dylan was awarded $12.8 million. Thereafter, because the verdict exceeded his section 998 offer, Dylan moved for an award of prejudgment interest pursuant to section 3291. The trial court denied the motion, ruling that Dylan’s section 998 offer was invalid because it did not contain a provision that if Philip Morris was to accept the offer, it would do so by signing a statement that the offer was accepted.

Under section 998, either party to an action may serve a written offer to allow judgment on the opposing party. (§ 998, subd. (b).) If a plaintiff makes an offer under section 998 that the defendant does not accept and the plaintiff receives a more favorable judgment, the judgment accrues interest at the annual rate of 10 percent from the date of the plaintiff’s offer. (§ 3291.) Effective January 1, 2006, the Legislature amended subdivision (b) of section 998 in part to add the requirement that offers under section 998 “shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.” (Italics added, as amended by Stats. 2005, ch. 706, § 13, p. 5651.)

In Puerta v. Torres (2011) 195 Cal.App.4th 1267 [124 Cal.Rptr.3d 922], the defendant served a section 998 offer on the plaintiff. The offer did not include the required acceptance provision. The Court of Appeal held that under the plain language of the statute, a section 998 offer must include an acceptance provision, and the defendant’s offer was invalid for lack of such a provision. (Id. at pp. 1270, 1273.) In reaching this conclusion, the court considered two “competing dynamics.” (Id. at p. 1271.) The first “dynamic” was case law predating the acceptance provision amendment to section 998 that emphasized that the purpose of section 998 was to encourage settlement. (Puerta v. Torres, supra, 195 Cal.App.4th at p. 1272.) Those cases held that offers under section 998 should be held valid if they are clear and understandable, “even if they do not precisely track the statute’s language.” (Puerta v. Torres, supra, 195 Cal.App.4th at p. 1271.) The second “dynamic” was the “most fundamental principles of statutory construction.” (Id. at p. 1272.) Under those principles, if the language of a statute “ ‘is clear and unambiguous, the plain meaning governs.’ (Silicon Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, 444 [79 Cal.Rptr.3d 312, 187 P.3d 37]; see Young v. Gannon (2002) 97 Cal.App.4th 209, 223 [118 Cal.Rptr.2d 187] [the ‘court looks first to the language of the statute; if clear and unambiguous, the court will give effect to its plain meaning’].)” (Ibid.) The court found this second “dynamic” to predominate. (Ibid.) It stated that section 998, subdivision (b) provides that offers to compromise “shall” include an acceptance provision and cited Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443 [261 Cal.Rptr. 574, 777 P.2d 610] for the proposition that “ ‘[i]t is a well-settled principle of statutory construction that the word . . . “shall” is ordinarily construed as mandatory ....’” (Puerta v. Torres, supra, 195 Cal.App.4th at p. 1272.)

The defendant in Puerta v. Torres, supra, 195 Cal.App.4th at pages 1272 through 1273 argued, as does Dylan, that “shall” is not always construed as strictly mandatory, such as when that construction would defeat the purpose of the statute. The court held, however, that applying the acceptance provision amendment to section 998 as written did not defeat the statute’s purpose. (Puerta v. Torres, supra, 195 Cal.App.4th at p. 1273.) The amendment required that an acceptance of a section 998 offer be in writing and that the manner of acceptance be indicated in the offer. (Puerta v. Torres, supra, 195 Cal.App.4th at p. 1273.) The court reasoned, “The statute’s new language seeks to eliminate uncertainty by removing the possibility that an oral acceptance might be valid, which is a legitimate concern. While there is room for interpretation as to how an appropriate statement regarding acceptance might be phrased in the offer, it is clear from the statute’s language that at least some indication of how to accept is required by the amendment.” (Ibid.; accord, Perez v. Torres (2012) 206 Cal.App.4th 418 [141 Cal.Rptr.3d 758].)

We agree with the court’s analysis in Puerta v. Torres, supra, 195 Cal.App.4th 1267. Construing the acceptance provision amendment as directory and not mandatory would defeat the purpose of the amendment— eliminating uncertainty in the acceptance of section 998 offers by requiring the acceptance to be made by a signed statement. Requiring the offeror to include in the section 998 offer, in essence, the manner in which the offer must be accepted, arguably facilitates settlements by deterring invalid, oral acceptances.

Dylan argues that the validity of a section 998 offer that does not include an acceptance provision should be determined by evaluating the litigation sophistication of the party receiving the offer—that is, whether the party receiving the offer was “actually confused” about how to accept a section 998 offer. Dylan reasons, “If an extremely sophisticated litigant represented by extremely qualified counsel knows full well how to accept a section 998 offer, but declines to do so in order to force a trial, the purpose of section 998 is subverted by invalidating the offer to settle on a technicality.” The court in Perez v. Torres, supra, 206 Cal.App.4th 418 essentially rejected this argument by holding that an acceptance provision in a section 998 offer is mandatory whether or not the party receiving the offer represents himself or is represented by counsel. (206 Cal.App.4th at pp. 423-424.) Any attorney who reviews section 998 might well advise the client to ignore a section 998 offer that does not include the required acceptance language.

Dylan points to his counsel’s declaration that Philip Morris never settles these types of personal injury actions. But this is of no avail to Dylan, for we interpret the mandatory requirements of the statute without regards to what occurred in this particular case or the tactics of a party.

Because Dylan’s section 998 offer did not include the required acceptance provision, the offer was invalid. (Puerta v. Torres, supra, 195 Cal.App.4th at p. 1273; Perez v. Torres, supra, 206 Cal.App.4th at pp. 423-424.) Accordingly, the trial court did not err in denying Dylan’s motion for interest pursuant to section 3291.

DISPOSITION

The judgment and order are affirmed. Plaintiff is awarded costs on appeal.

Turner, P. J., and Kriegler, J., concurred.

A petition for a rehearing was denied July 30, 2013. 
      
       We use first names to distinguish between and among members of the Boeken family.
     
      
       As to other jurisdictions, see Williams, Cause of Action by Child for Loss of Parent’s Consortium (2013) 12 Causes of Action 2d 419.
     
      
       We deny Philip Morris’s request to take judicial notice of excerpts from the record in Blackwell, supra, 189 Cal. 689 reflecting the text of the instructions at issue.
     
      
       The trial court also rejected Philip Morris’s request to modify CACI No. 3921 to instruct the jury that it could consider Richard’s health immediately before his death in calculating his life expectancy.
     
      
      See footnote, ante, page 992.
     
      
       Section 3291 provides in pertinent part, “If the plaintiff makes an offer pursuant to Section 998 of the Code of Civil Procedure which the defendant does not accept prior to trial or within 30 days, whichever occurs first, and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff’s first offer pursuant to Section 998 of the Code of Civil Procedure which is exceeded by the judgment, and interest shall accme until the satisfaction of judgment.”
     
      
      
         Section 998, subdivision (b) provides in relevant part, “Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.”
     
      
       Because we hold that Dylan’s section 998 offer was invalid, we do not need to reach Philip Morris’s argument that Dylan was not entitled to prejudgment interest because section 3291 does not apply to wrongful death actions.
     
      
       Counsel’s declaration stated, in part, “Philip Morris’ failure to express any interest in accepting the offers or indeed to respond to them at all came as no surprise to me. I have been involved in several of [the] legal actions against Philip Morris since 2000. Philip Morris never made any offer to settle any of those actions against it. Attorneys for Philip Morris informed me that there would never be a reason for a settlement conference since Philip Morris would never settle a case filed against it claiming personal injury or wrongful death. I have heard attorneys for Philip Morris state this to Los Angeles County Superior Court judges. I have been told by attorneys for Philip Morris that its national litigation strategy is to never offer a dime in settlement.”
     