JUAN MEDINA and RAMONA MEDINA v. Pile Trucking, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN MEDINA and RAMONA
MEDINA,
Plaintiffs - Appellees,
v.
PILE TRUCKING, INC.; et al.,
Defendants - Appellants.
No. 13-55441
D.C. No. 2:11-cv-06329-PJW
MEMORANDUM*
JUAN MEDINA and RAMONA
MEDINA,
Plaintiffs - Appellees,
v.
PILE TRUCKING, INC.; et al.,
Defendants - Appellants.
No. 13-55637
D.C. No. 2:11-cv-06329-PJW
Appeals from the United States District Court
for the Central District of California
Patrick J. Walsh, Magistrate Judge, Presiding
FILED
FEB 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Argued and Submitted February 12, 2015
Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and MOLLOY,** Senior
District Judge.
Alvin Flynn, Pile Trucking, Inc., and Earl Pile Trucking (collectively, “Pile
Trucking”) appeal a $2,625,000 judgment and a $238,047.95 award of interest
entered against them and in favor of Juan and Ramona Medina 1 following a jury
trial in a wrongful-death suit. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We affirm the judgment but vacate the award of interest.
1. The district court erred in providing the jury with a verdict form that
included separate blank lines for the awards of damages to Juan and Ramona,
allowing a jury verdict with two sums for damages. In a wrongful death action
under California law, “‘the court or jury must compute the damages, if any, by
considering the pecuniary damage suffered by all the heirs and return a verdict for
one sum.’” Corder v. Corder, 161 P.3d 172, 176 (Cal. 2007) (quoting Watkins v.
Nutting, 110 P.2d 384, 388 (Cal. 1941)). Here, the verdict form permitted the jury
to return separate awards, and the jury did so—awarding $1,750,000 to Juan and
** The Honorable Donald W. Molloy, Senior District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
1 For ease of reference, we refer to each of the Appellees by his or her first
name.
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$1,750,000 to Ramona. After taking into account the jury’s comparative fault
finding, the district court aggregated those awards for a joint judgment of
$2,625,000.00.
Pile Trucking, however, has not demonstrated that it was prejudiced by the
verdict form. It has not cited to any case law or presented any evidence in support
of its contention that a jury supplied with two blank lines is likely to award greater
damages than a jury supplied with only one blank line. Because the purpose of the
lump-sum rule is to protect plaintiffs, not defendants, we do not presume prejudice.
See Robinson v. W. States Gas & Elec. Co., 194 P. 39, 43 (Cal. 1920).
2. The district court’s jury instructions did not erroneously introduce a
theory of liability that was absent from the case. In analyzing whether jury
instructions fairly and adequately cover the issues presented, we review the
instructions as a whole rather than in isolation. Gulliford v. Pierce Cnty., 136 F.3d
1345, 1348 (9th Cir. 1998). Reading the instructions as a whole, it is clear that the
only theory of liability presented to the jury was that Flynn acted negligently, and
that Pile Trucking was vicariously liable for the negligence of Flynn, its employee.
Instruction Number 18, when viewed in context, did not introduce a theory of
direct liability against Pile Trucking.
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3. The district court erred in awarding the Medinas $238,047.95 in interest
pursuant to California’s offer-of-judgment statute. See Cal. Civ. Code § 3291.
Offers of judgment are procedural in nature and, therefore, are governed by Federal
Rule of Civil Procedure 68 under Erie Railroad Co. v. Tompkins, 304 U.S. 64
(1938). See Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1332
(9th Cir. 1995). Because Rule 68 permits only defendants to serve offers of
judgment, the district court’s award of interest to the Medinas based on their prior
offer of judgment was improper. We therefore vacate the award of interest.
AFFIRMED in part, VACATED in part, and REMANDED. Each side
shall bear its own costs.
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