Judge: Melvin D. Sandvig, Case: PC057690, Date: 2022-12-06 Tentative Ruling
Case Number: PC057690 Hearing Date: December 6, 2022 Dept: F47
Dept. F47
Date: 12/6/22
Case #PC057690
MOTION FOR NEW
TRIAL & JUDGMENT NOTWITHSTANDING THE VERDICT
Notices filed on 10/24/22. Memorandum and supporting documents filed on
11/10/22.
MOVING PARTY: Defendant Mohsen Babaeian
RESPONDING PARTY: Plaintiff Hamidreza Ghasemi
NOTICE: ok
RULING: The motions are denied.
This action arose out of a dispute as to whether a
disability insurance policy purchased by
Plaintiff/Cross-Defendant Hamidreza Ghasemi (Plaintiff)
from Defendant/Cross-Complainant Bankers Life and Casualty Company (Bankers
Life) provided benefits for five years or up until Plaintiff reached the age of
65. Although Plaintiff executed a form
changing the benefit period to five years from “to age 65” as requested in his
application, Plaintiff contends that Defendant Mohsen Babaeian (Babaeian), a
Bankers Life insurance agent, acted as his interpreter and misrepresented that
the policy provided benefits to age 65.
In 2011, Plaintiff was declared disabled. Bankers Life paid benefits for five years.
When Bankers Life stopped paying under the policy, Plaintiff filed this action against
Bankers Life and Babaeian for: (1) fraud, (2) negligent misrepresentation, (3)
reformation, (4) negligence, (5) breach of contract, (6) breach of implied
obligation of good faith and fair dealing, (7) declaratory relief and (8)
violation of Business & Professions Code Section 17200.
Bankers Life contended that Plaintiff’s claim submissions
contained material misrepresentations and concealments; therefore, Bankers Life
filed a cross-complaint against Plaintiff.
The operative First Amended Cross-Complaint contained causes of action
for: (1) breach of contract, (2) breach of implied covenant of good faith and
fair dealing; (3) intentional misrepresentation/concealment, (4) negligent
misrepresentation, (5) declaratory judgment/no loss of earnings, (6)
declaratory judgment/rescission and (7) restitution for unjust enrichment.
Plaintiff and Bankers Life settled and the Court found
their settlement to be in good faith. (See
1/26/22 Minute Order). Pursuant to the
settlement, Plaintiff accepted payment of $77,500.00 and a release of all
claims by Bankers Life and Casualty Company, including its approximately
$84,000.00 cross-claim related to overpayment, in exchange for a release of all
claims against Bankers Life and Casualty Company. Id.
Additionally, all claims between the Settling Parties were dismissed
with prejudice. Id.
Trial proceeded against Babaeian on only the negligence
and negligent misrepresentation causes of action. The jury returned a verdict in favor of
Plaintiff and against Babaeian. The jury
awarded Plaintiff economic damages of $120,000 for his lost policy benefits and
$102,000 for loans he incurred. (See
10/10/22 Judgment). The jury also
awarded Plaintiff noneconomic damages of $750,000 for his past mental suffering
for a total judgment in the amount of $972,000.
Id.
Babaeian now moves for an order, pursuant to CCP 629,
granting complete judgment notwithstanding the verdict or, in the alternative,
for partial judgment notwithstanding the verdict.
Babaeian also moves, under CCP 657, to set aside the
judgment entered on 10/10/22 and the granting of a new trial. Alternatively to the request for new trial,
pursuant to CCP 665.3(a)(2), Babaeian requests a conditional order granting a
new trial unless Plaintiff consents to a reduction of the compensatory damages
to an amount that the Court determines from the evidence to be fair and
reasonable. The notice of intention to
move for new trial indicates that the motion is
made on the following grounds: (1) Irregularity in the proceedings of
the Court (CCP 657(1)); (2) Irregularity in the proceedings of the jury (CCP
657(1)); (3) Irregularity in the proceedings caused by Plaintiff (CCP 657(1));
(4) Improper orders of the Court (CCP 657(1)); (5) Abuse of discretion by the
Court (CCP 657(1)); (6) Misconduct of the jury (CCP 657(2)); (7) Accident or
surprise, which ordinary prudence could not have guarded against (CCP 657(3));
(8) Newly-discovered evidence, material to Defendant’s case, that could not,
with reasonable diligence, have been discovered and produced at trial (CCP
657(4)); (9) The award of damages was excessive (CCP 657(5)); (10) The evidence
was insufficient to justify the verdict (CCP 657(6)); (11) The verdict is
contrary to law (CCP 657(6)); and (12) Error in law occurring at the trial and
objected to by the moving party (CCP 657(7)).
(See Notice of Intention to Move for New Trial filed on
10/24/22). However, with regard to the
request for new trial, the argument in the memorandum of points and authorities
in support of the motion is based on the claim that the weight of the evidence
does not support the noneconomic damage award; therefore, the Court should
remit such damages to an amount supported by the evidence or alternatively
grant a new trial on damages. (See
Memorandum of Points & Authorities, p.4:25-p.6:4; p.10:1-p.12:3).
JUDGMENT NOTWITHSTANDING THE VERDICT (JNOV)
Judgment notwithstanding the verdict (JNOV) is required
where “there is no substantial evidence to support the verdict and the evidence
compels a judgment for the moving party as a matter of law.” Paykar Construction Inc. (2001) 92
CA4th 488, 493; CCP 629. “A party is
entitled to a partial judgment notwithstanding the verdict if there is no
substantial evidence to support the verdict on a particular issue and the
evidence compels a judgment for the moving party on that issue as a matter of
law.” Fassberg Construction Co.
(2007) 152 CA4th 720, 746; Dell’Oca (2008) 159 CA4th 531, 553. However, a party in whose favor the verdict
was rendered is “entitled to the benefit of every favorable inference which may
reasonably be drawn from the evidence and to have all conflicts in the evidence
resolved in his favor.” Castro
(1981) 114 CA3d 503, 507; Cochrum (2018) 25 CA5th 1034, 1044; Fountain
Valley Chateau Blanc Homeowner’s Association (1998) 67 CA4th 743, 750.
Under the circumstances of this case, where Plaintiff,
whose first language is not English, was relying on Babaeian, an insurance
agent and friend, to obtain an insurance policy with the benefits requested
(coverage until age 65), the Court finds that noneconomic damages are
recoverable. See Crisci
(1967) 66 C2d 425, 433-434; Gruenberg (1973) 9 C3d 566, 570-572. The Court also finds that there was
substantial evidence (i.e., by way of Plaintiff’s and his wife’s testimony,
etc.) to support the jury’s finding that Plaintiff suffered noneconomic damages
as a result of Babaeian’s tortious conduct.
Evidence that supported a finding that Babaeian’s conduct resulted in
Plaintiff’s mental distress after 2016, included: (1) changing the benefit
period from until age 65 to five years without specifically advising Plaintiff;
(2) failing to explain the change in the benefit period when he directed Plaintiff
to sign the change form; and (3) when Plaintiff contacted Babaeian after receiving
the letter from Bankers regarding the end of his benefits, Babaeian advised Plaintiff’s
that it was a mistake that he would fix and after Babaeian investigated the
matter with Bankers and determined that a Change Form had been signed, he
advised Plaintiff to sue Bankers. (Jafari Decl., Ex.A, B, C, G).
Also, at trial, the Court allowed Plaintiff to amend his complaint
to conform to proof. (See
Jafari Decl., Ex.F). Because the issues were litigated at trial,
Babaeian was not prejudiced by the award of damages not specifically alleged in
the complaint filed on 4/13/17 but deemed, by the jury to be a consequence of
Plaintiff’s reliance on Babaeian’s misrepresentations. See Castaic Clay Manufacturing Co.
(1987) 195 CA3d 444, 449-450; Gagne (1954) 43 C2d 481.
NEW TRIAL
Based on the entire record, the Court finds that there
was sufficient evidence to support the jury’s award of noneconomic damages in
the amount of $750,000. See CCP
657(5). The Court also finds that
Plaintiff’s counsel did not make improper arguments to inflame the jury which
prejudiced Babaeian. Based on the
foregoing, the Court finds no basis to grant a new trial or to issue a
remittitur to reduce the damages awarded by the jury.
STATUTE OF LIMITATIONS
Plaintiff’s claims are not barred by the two-year statute
of limitations which governs negligence claims.
Although Babaeian’s tortious conduct occurred in 2010, Plaintiff did not
suffer any injury until 2016 when Bankers Life stopped paying benefits. As such, Plaintiff’s claims accrued in 2016
and this action was timely filed on 4/13/17.
See Lederer (2018)
22 CA5th 508, 521; Thomson (2011) 198 CA4th 594, 604; San Francisco
Unified School District (1995) 37 CA4th 1318, 1326.
Even if Plaintiff’s claims accrued more than two years
before this action was filed, the Court finds that under the circumstances of
this case, Plaintiff did not discover Babaeian’s tortious conduct until Bankers
Life stopped paying benefits under the policy in 2016. As such, the action was timely filed under
the delayed discovery rule. See Fox
(2005) 35 C4th 797, 807; April Enterprises, Inc. (1983) 147 CA3d 805,
832; (Jafari Decl., Ex.A, B, C, D).
Finally, based on the evidence presented, the jury found
that Plaintiff’s failure to read the policy did not negate Plaintiff’s
justifiable reliance on Babaeian’s misrepresentation that he had procured the
policy requested. The Court finds no
basis to disturb the jury’s findings on this issue.
Date: 12/6/22
Case #PC057690
MOTION FOR SET-OFF
Motion filed on 10/31/22.
MOVING PARTY: Defendant Mohsen Babaeian
RESPONDING PARTY: Plaintiff Hamidreza Ghasemi
NOTICE: ok
RELIEF REQUESTED: An order
reducing/setting-off
the jury verdict regarding the economic damages award under the judgment under
2.A. “for lost policy benefits; $120,000” by the $77,500.00 Plaintiff obtained
in the good faith settlement he entered with Bankers Life and Casualty Company,
thereby reducing category 2.A. to $42,500.00.
RULING: The motion is granted, in part.
This action arose out of a dispute as to whether a
disability insurance policy purchased by
Plaintiff/Cross-Defendant Hamidreza Ghasemi (Plaintiff)
from Defendant/Cross-Complainant Bankers Life and Casualty Company (Bankers
Life) provided benefits for five years or up until Plaintiff reached the age of
65. Although Plaintiff executed a form
changing the benefit period to five years from “to age 65” as requested in his
application, Plaintiff contends that Defendant Mohsen Babaeian (Babaeian), a
Bankers Life insurance agent, acted as his interpreter and misrepresented that
the policy provided benefits to age 65.
In 2011, Plaintiff was declared disabled. Bankers Life paid benefits for five years.
When Bankers Life stopped paying under the policy, Plaintiff filed this action against
Bankers Life and Babaeian for: (1) fraud, (2) negligent misrepresentation, (3)
reformation, (4) negligence, (5) breach of contract, (6) breach of implied
obligation of good faith and fair dealing, (7) declaratory relief and (8)
violation of Business & Professions Code Section 17200.
Bankers Life contended that Plaintiff’s claim submissions
contained material misrepresentations and concealments; therefore, Bankers Life
filed a cross-complaint against Plaintiff.
The operative First Amended Cross-Complaint contained causes of action
for: (1) breach of contract, (2) breach of implied covenant of good faith and
fair dealing; (3) intentional misrepresentation/concealment, (4) negligent
misrepresentation, (5) declaratory judgment/no loss of earnings, (6)
declaratory judgment/rescission and (7) restitution for unjust enrichment.
Plaintiff and Bankers Life settled and the Court found
their settlement to be in good faith. (See
1/26/22 Minute Order). Pursuant to the
settlement, Plaintiff accepted payment of $77,500.00 and a release of all
claims by Bankers Life and Casualty Company, including its approximately
$84,000.00 cross-claim related to overpayment, in exchange for a release of all
claims against Bankers Life and Casualty Company. Id.
Additionally, all claims between the Settling Parties were dismissed
with prejudice. Id.
Trial proceeded against Babaeian on only the negligence
and negligent misrepresentation causes of action. The jury returned a verdict in favor of
Plaintiff and against Babaeian. The jury
awarded Plaintiff economic damages of $120,000 for his lost policy benefits and
$102,000 for loans he incurred. (See
10/10/22 Judgment). The jury also
awarded Plaintiff noneconomic damages of $750,000 for his past mental suffering
for a total judgment in the amount of $972,000.
Id.
Babaeian now moves for an order reducing/setting-off the
jury verdict regarding the economic damages award under the judgment under 2.A.
“for lost policy benefits; $120,000” by the $77,500.00 Plaintiff obtained in
the good faith settlement he entered with Bankers Life and Casualty Company,
thereby reducing category 2.A. to $42,500.00.
Plaintiff has filed and served a late opposition to the motion. Despite the late filing, the Court exercises
its discretion to consider the opposition.
See CRC 3.1300(d). The
Court finds that Babaeian was not prejudiced by the late filing and service of
the opposition since the motion itself contains no authority for the relief
requested. (See Motion,
generally). The entire argument portion
of the motion states:
“Pursuant to the good faith
settlement found by this Court on Co-Defendant, BANKERS LIFE AND CASUAL TY
COMPANY on January 26, 2022 under CCP Section 877.6 and unopposed by Plaintiff,
this Court must set-off or reduce Plaintiff's judgement accordingly.” (See Motion, p.5:4-7).
Additionally, Babaeian filed and served a reply on the
merits which was also considered by the Court.
Each defendant is only liable for the amount of
noneconomic damages allocated to that defendant in direct proportion to that
defendant’s percentage of fault. See
Civil Code 1431.2; Espinoza (1992) 9 CA4th 268, 275. Only the portion of a settlement value attributable
to a plaintiff’s economic damages may be credited (set-off) against the
non-settling defendant’s liability. Espinoza,
supra.
In order to make the determination of the appropriate
set-off amount, the undifferentiated settlement amount must be viewed as a
whole in order to calculate the percentage of the award attributable to
economic damages in relation to the entire award. Id. at 277. The Espinoza court explained that such
a calculation “preserves allocation in accord with proportionate fault and does
not create a set-off to the nonsettling tort-feasor of noneconomic
damages.” Id.
Because the jury awarded Plaintiff $222,000 in economic
damages, which is equal to 22.84% of the total judgment of $972,000, Babaeian
is entitled to a set-off of $17,701.00 with regard to the economic damages (or
22.84% of the $77,500 settlement).
The reply argues that calculating the set-off pursuant to
the formula set forth in Espinoza “would fly in the face of the good
faith settlement ruling by this court” because the Court did not consider the
post-filing loans awarded as part of the economic damages when it found the
settlement to be in good faith. Babaeian
goes on to reiterate his argument made in relation to the motion for judgment
notwithstanding the verdict with regard to the award of $102,000 for loans
incurred being improper. However, as noted in the Court’s ruling on the motion
for judgment notwithstanding the verdict, the Court allowed Plaintiff to amend
his complaint according to proof which permitted such an award.
Based on the foregoing, the $222,000 economic damage
award against Babaeian is reduced/set-off to $204,299.00.