KASANJIAN v. Lloyd Mullens, Cross-Defendant and Respondent. (1987)

I

BACKGROUND FACTS

Plaintiff and respondent Peter Kasanjian was seriously injured while in an automobile belonging to Rafael Muniz.   Muniz was driving, one Oscar Bechtle (not a party herein) was in the passenger seat and Kasanjian was riding in a luggage area behind the two seats.   The accident occurred in the early morning hours when the left front tire and most of the wheel came off of Muniz' car.

Plaintiff named as defendants, among others, Lewis G. Miller, Inc., doing business as Culver City Datsun (Datsun), Globe Tire Company, Inc. (Globe), and Wheel Distributors, Inc., doing business as Blue Line Wheel Company, Inc. (Blue Line.) ¹  Datsun was the dealer who sold the car and wheel;  Globe was the distributor of the wheel.   Blue Line was the manufacturer of the wheel.   Datsun and Globe each cross-complained against Blue Line and other defendants.   Blue Line cross-complained against them.   Globe named also as a party cross-defendant Lloyd Ray Mullens.   Mullens was the president and principal shareholder of Blue Line.

Prior to trial, Kasanjian, on the one hand, and Blue Line and Mullens on the other hand, entered into a settlement agreement.   The trial court found it to have been made in good faith and ordered all cross-complaints against the settling defendants dismissed, signing written orders of dismissal on April 17, 1984.   The court severed and placed off calendar the trial as to Blue Line.

The case proceeded to trial against Globe and Datsun only, on a theory of products liability.   The jury found that a defect in the wheel proximately caused plaintiff's injuries, that the total amount of damage was $1,306,500, and that plaintiff himself was 25 percent at fault.   Reduced by the 25 percent (and by a $15,000 settlement received from driver Muniz who was never served in the action) judgment was entered for $964,875.   The trial court rejected the efforts of Datsun and Globe to have a value ascribed to the Blue Line-Mullens-Kasanjian settlement and to set off such value against the judgment.   The trial court denied various post-trial motions and entered an order taxing costs.   Additional facts will be set forth as necessary.

II

THE PARTIES ON APPEAL AND THE ORDERS APPEALED FROM

Globe has filed a notice of appeal from (1) the judgment, (2) the denial of a motion for new trial, (3) the court's determination that the settlement was in good faith, and (4) the order dismissing the cross-complaints after the good faith determination.   Datsun has filed a similar appeal, adding thereto an appeal from an order denying a motion for judgment notwithstanding the verdict.

No appeal lies from the denial of a motion for new trial and the purported appeals from such denials will be dismissed.  (Rodriguez v. Barnett (1959) 52 Cal.2d 154, 156, 338 P.2d 907.)   At the time the court determined that the settlement was in good faith Code of Civil Procedure section 877.6 did not provide for review of such a determination.²  Accordingly we will examine that order on this appeal.

Plaintiff Kasanjian has filed a cross-appeal from orders denying his claims for interest on the judgment and taxing and striking claimed costs.

III

STATUS OF BLUE LINE

Blue Line and Mullens have appeared herein as respondents to the attack on the settlement agreement.   As a preliminary matter we look to see if Blue Line is properly before us.

 At the time of the hearing on the motion to determine the good faith of the settlement, it was established that Blue Line had been suspended for nonpayment of taxes.  Revenue and Taxation Code section 23301 provides that when such nonpayment occurs the corporate powers, rights and privileges of the defaulting corporation may be suspended.   The purpose of suspension is to pressure a corporation to pay its taxes.  (Boyle v. Lakeview Creamery Co. (1939) 9 Cal.2d 16, 19, 68 P.2d 968.)   The effect of suspension is to preclude the corporation from suing and from defending an action.  (Reed v. Norman (1957) 48 Cal.2d 338, 343, 309 P.2d 809;  Schwartz v. Magyar House, Inc. (1959) 168 Cal.App.2d 182, 188, 335 P.2d 487.)   A suspended corporation may not appeal from an adverse judgment in an action.  (Reed v. Norman, supra, 48 Cal.2d at p. 343, 309 P.2d 809;  see Brown v. Superior Court (1966) 242 Cal.App.2d 519, 522, 51 Cal.Rptr. 633, holding that a suspended corporation against which a default judgment had been entered was prevented from defending the lawsuit and from prosecuting a writ proceeding in the appellate court “defensive though it may be.”)   And, where a suspended corporation has purported to appeal without indicating the slightest intention to pay its taxes or seek revivor the appeal will be dismissed.  (Gar-Lo, Inc. v. Prudential Sav. & Loan Assn. (1974) 41 Cal.App.3d 242, 245, 116 Cal.Rptr. 389.)

 The principles clearly apply to a corporation which purports to appear as a respondent on an appeal after the trial court has run through the stop sign of suspension and allowed the suspended corporation to take affirmative steps.   We determine that Blue Line is not properly before us as a respondent and order the brief which it has filed to be stricken so far as Blue Line is concerned.  (The same brief relates also to Mullens who is, of course, entitled to appear as a respondent herein.)

IV

TIMELINESS OF APPEAL

Mullens argues that Datsun and Globe did not timely file their notices of appeal so far as those notices challenge the good faith of the settlement agreement and the dismissals of the cross-complaints.   Mullens relies upon rule 2(a) of the California Rules of Court.   The rule provides that a notice of appeal shall be filed “within 60 days ․ after the date of service of written notice of entry of judgment by any party upon the party filing the notice of appeal, or within 180 days after the date of entry of the judgment, whichever is earliest.” ³  In this case, the trial court entered written orders dismissing the cross-complaints against Blue Line and Mullens on April 17, 1984.   On April 23, 1984 Blue Line and Mullens served written notice on Globe and Datsun that on April 17 the court “granted the settling parties motion for determination of good faith settlement, finding that said settlement was in fact in good faith, and thereafter dismissing all cross-complaints against the settling parties.” ⁴  The appeal of Globe was filed August 15, 1984 and that of Datsun August 16, 1984.

 If the written notice served by Blue Line and Mullens was a notice of entry of judgment, the appeals would be untimely.   However, it is not such a notice.   As written it only states that the court granted a good faith settlement motion, thereafter dismissing cross-complaints.   The situation is somewhat analogous to that in Call v. Los Angeles County General Hospital (1978) 77 Cal.App.3d 911, 143 Cal.Rptr. 845, cited by Mullens.   In that case a demurrer was sustained without leave to amend and a written order of dismissal was entered the same day.   The defendant gave a notice of ruling which stated that the “demurrer ․ was ․ sustained without leave to amend.”   Five days later the clerk gave the notice of filing of the order which Code of Civil Procedure section 664.5 then required.   The appeal was taken more than 60 days after the notice of ruling served by defendant but within 60 days of the notice from the clerk.   The court held that the appeal was timely because the defendant's notice “merely advised plaintiff that the demurrer had been sustained without leave to amend and was not a ‘written notice of entry of judgment’ that would start the 60–day period running contemplated by rule 2(a).”  (Id., at p. 915, 143 Cal.Rptr. 845.)

The same is true here.   The notice that the court had dismissed the cross-complaints is not the written notice of entry of judgment contemplated by the rule.   The 180–day provision of rule 2(a) comes into play, and the appeals are timely.

V

THE SETTLEMENT AGREEMENT1. Capacity of Blue Line

In the trial court Globe attacked Blue Line's capacity to have the settlement agreement declared to be in good faith by the court because it was a suspended corporation.   Datsun joined in the objection.   The court (Judge Walker) ruled that a suspended corporation can enter into a settlement agreement and “that the provision ․ in the code section which says that they would have no standing in court do not apply in this case.”   Globe pursues this attack on appeal.

The agreement entered into here is characterized by plaintiff as a “sliding scale agreement” and by appellants as a “Mary Carter” agreement.   In it Blue Line and Mullens first agreed and guaranteed that plaintiff shall obtain and collect a judgment of at least $1,250,000 from the other defendants and agreed that the judgment should be entered against themselves up to the amount of the difference between $1,250,000 and the amount obtained and collected from other defendants.   The agreement then took away most of this guarantee.   It provided that in exchange for plaintiff's agreement not to further prosecute the case nor to execute on the judgment to be entered against Mullens or his wife personally, Blue Line and Mullens assigned and conveyed to plaintiff their rights and causes of action against their insurance carrier, including an action for insurance bad faith, breach of fiduciary obligations and breach of contract effective on entry of judgment against them.⁵

We have already discussed, in part III of this opinion the policy reason behind Revenue and Taxation Code section 23301 and the effect of a corporate suspension under it.   We note that the same code also provides, in section 23304, “[E]very contract made in violation of this article is hereby declared to be voidable, at the instance of any party other than the taxpayer.”   It has been held that a contract voidable under the predecessor to this statute remains in full effect until it is disputed and set aside by a competent tribunal.  (Depner v. Joseph Zukin Blouses (1936) 13 Cal.App.2d 124, 127, 56 P.2d 574.)   Plaintiff here has made no attempt to set aside the settlement.   Neither have defendants, their efforts in the trial court being devoted to resisting the good faith determination and the consequent dismissal of their cross-complaints.   Under these circumstances it follows that the settlement agreement itself has not been avoided.

 In our view, however, the trial court erred in allowing Blue Line to participate in the proceedings to determine that the settlement was in good faith.   Blue Line's corporate powers have been suspended.   The consequence of granting a motion to approve a settlement agreement is to bar joint tortfeasors “from any further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.”  (Code Civ.Proc, § 877.6, subd. (c).)  Also, such agreements, because such is their very purpose, provide that the plaintiff will dismiss or not further prosecute his or her action against the settling defendant.   A settlement embodies a highly favored policy of the law to avoid or terminate litigation.   Thus, a settlement is one way for a tortfeasor to defend itself when sued.  Revenue and Taxation Code section 23301, as we have seen, has long been construed to take away from a defendant corporation its right to a defense.   This should be particularly true when the right is asserted so as to take away from nonsettling defendants their right to seek indemnity against the corporation.   Nonsettling defendants are clearly within the ambit of the good faith obligation imposed on settling parties by Code of Civil Procedure section 877.  (River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d 986, 996, 103 Cal.Rptr. 498.)   That obligation must be determined by considering the factors set out in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, 213 Cal.Rptr. 256, 698 P.2d 159.   One of these factors is the financial condition of the settling defendant.   To allow a suspended corporation to take advantage of its financial condition to terminate litigation (as plaintiff here argues) is to allow it to thwart the policy which encourages the payment of taxes owed to the state.

Opposing this conclusion Mullens argues only that “[i]t is within the sound discretion of the trial court to allow recognition of a suspended corporation, such as ․ BLUE LINE ․ for limited purposes.”   The only authority cited for this proposition is Schwartz v. Magyar House, Inc., supra, 168 Cal.App.2d 182, 335 P.2d 487.   The citation is not apropos.   The only issue presented in that case was whether a suspended corporation could make a motion for a continuance of trial for the purpose of paying its taxes and securing a reinstatement of its corporate powers.   Recognizing the corporation for this limited purpose and granting the motion furthered the very purpose of the suspension statutes—that is to put pressure on a corporation to pay the delinquent taxes.   In this context, it was held to be within the discretion of the trial court to grant the motion.   As we have shown, the opposite is true here.

As a consequence we will reverse the orders dismissing the cross-complaints of Globe and Datsun against Blue Line.

2. Mullens and the Cross-Complaints.

 Respondent Mullens is, of course, directly affected also.   Our holding as to Blue Line means that there is no determination that its settlement was in good faith.⁶  Were we to allow the good faith determination to stand as to Mullens we would indirectly allow Blue Line to accomplish what it cannot do directly.   Further, we comment that if a successful effort is mounted under Revenue and Taxation Code section 23304 to avoid the Blue Line settlement as a result of our holding, Mullens would be impacted also.   The consideration for the agreement not to execute against him personally is inextricably tied to the assignment by Blue Line of any causes of it has against its insurance carrier.   Accordingly, our reversal will reach, also to the orders dismissing the cross-complaint of Globe against Mullens.

The above conclusions make it unnecessary to consider appellants' arguments that in any event their cross-complaints should not have been dismissed so far as they sought total, as opposed to partial indemnity.  (See IRM Corp. v. Carlson (1986) 179 Cal.App.3d 94, 104–111, 224 Cal.Rptr. 438 and cases therein discussed.)

3. Setoff Against the Judgment

Globe and Datsun argue that the trial court committed error in failing to credit against the judgment an amount equal to the value to plaintiff of the settlement agreement, pursuant to Code of Civil Procedure section 877.⁷  Since Blue Line and Mullens guaranteed that plaintiff would receive a collectible judgment of $1,250,000 and since the judgment which plaintiff received (after deduction of 25 percent on account of his negligence) was $979,875,⁸ the difference in the sum of $270,125, they argue, is the amount of credit which should have been applied against the judgment.

Under section 877, subdivision (a) when there is a good faith release, dismissal or covenant not to sue or not to enforce a judgment given to one tortfeasor, “It shall not discharge any other such tortfeasor ․ but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater.”   The section is part of tort contribution legislation whose major goals, are “ ‘first, equitable sharing of costs among the parties at fault, and second, encouragement of settlements.’ ”  (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d at p. 494, 213 Cal.Rptr. 256, 698 P.2d 159, quoting from River Garden Farms, Inc. v. Superior Court, supra, 26 Cal.App.3d at p. 993, 103 Cal.Rptr. 498.)   Equitable sharing of costs is accomplished by the provision of subdivision (a) calling for reduction of the claims against remaining tortfeasors claimed to be liable for the same tort.   Encouragement of settlements is accomplished by the provisions of subdivision (b) of section 877 which provides that a good faith settlement “shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasors.”

When a settlement agreement is of the sliding scale variety, different considerations are brought to the front.   The Legislature has recognized the existence of such agreements in section 877.5.   Courts have approved the good faith of such agreements, after trial courts granted motions under section 877.6.  (E.g., Rogers & Wells v. Superior Court (1985) 175 Cal.App.3d 545, 220 Cal.Rptr. 767;  Riverside Steel Construction Co. v. William H. Simpson Construction Co. (1985) 181 Cal.App.3d 411, 227 Cal.Rptr. 424;  Abbott Ford, Inc. v. Superior Court (1985) 181 Cal.App.3d 1205, 228 Cal.Rptr. 250.)⁹

Nevertheless, it has been stated, that “[u]nder section 877, subdivision (a), a nonsettling defendant is allowed to deduct any previous settlements from the ultimate verdict, whereas a nonsettling defendant under section 877.5 [involving sliding scale settlement agreements] has nothing to deduct.”   (City of Los Angeles v. Superior Court (1986) 176 Cal.App.3d 856, 862, 222 Cal.Rptr. 562.)   In Pease v. Beech Aircraft Corp. (1974) 38 Cal.App.3d 450, 473, 113 Cal.Rptr. 416 (decided before the enactment of § 877.5) the trial court kept from the jury the fact that some defendants had entered into a sliding scale agreement.   The remaining defendant had urged that the jury be told of the agreement because it was relevant to the issue of setoff.   The appellate court held that the trial court was correct because “there was no amount or consideration actually paid, and the amounts agreed to be paid conditionally could not be deducted from the verdicts.   The jury could not place a value on the agreements for the conditional payments.”  (Ibid.)  The trial court in the instant case relied upon Pease in denying the motion to setoff against the judgment, the difference between plaintiff's net recovery and $1,250,000, commenting how unfair it was to take away from the nonsettling defendants not only the right to proceed against Blue Line and Mullens on their cross-complaints but also denying them credit for the settlement.

Other cases have refined the Pease conclusion that because nothing was actually paid there is nothing to deduct from the verdicts.  Riverside Steel Construction Co. v. William H. Simpson Construction Co., supra, 181 Cal.App.3d 411, 427–428, 227 Cal.Rptr. 424, recognized that a sliding scale agreement could have value even if the settling defendant might end up paying nothing.   Rogers & Wells v. Superior Court, supra, 175 Cal.App.3d 545, 554, 220 Cal.Rptr. 767, which dealt with a sliding scale agreement and the problem of reconciling it to the factors which Tech-Bilt, Inc. v. Woodward Clyde & Associates, supra, 38 Cal.3d 488, 499, 213 Cal.Rptr. 256, 698 P.2d 159, prescribes for determining the good faith of a settlement also concluded that sliding scale agreements could have value.   These factors include the relationship between the value of the agreement and the projected proportionate liability of the settling defendant.

We need not add our voice to those of other courts on the validity of a sliding scale agreement “when the bottom end of the scale is zero and the settling defendant has potential substantial liability in the case.”   (Rogers & Wells v. Superior Court, supra, 175 Cal.App.3d at p. 551, 220 Cal.Rptr. 767.)   The Supreme Court has these issues before it in Riverside Steel and Abbott Ford.  (See fn. 9, supra.)   The order finding the settlement to be in good faith makes no provision for crediting the nonsettling defendants with the value of whatever plaintiff received from the agreement made with Blue Line and Mullens.   We set forth the language of the agreement in full in the margin.¹⁰  Paragraphs 2 and 3, by themselves, constitute a pure sliding scale agreement.   Paragraph 4 shows that the agreement contemplated that plaintiff would receive something of value in the event the agreement came into play.   By its language plaintiff agreed not to pursue Mullens or his wife personally.   And, we are told that Blue Line has no assets except the causes of action which it was to assign to plaintiff under paragraph 4.   Therefore, plaintiff did his best to secure from Blue Line something to make the settlement agreement meaningful.   The potential right to sue Blue Line's insurer for alleged derelictions could have been found to have some value.

In Southern Cal. Gas Co. v. Superior Court (1986) 187 Cal.App.3d 1030, 232 Cal.Rptr. 320, a case involving a nonsliding scale settlement, one of the elements of the settlement was, as here, the assignment of causes of action against an insurer.   It was doubtful on the facts there presented, whether the trial court order which determined that the settlement was in good faith, had provided at all for the remaining defendants to receive credit for the value of the assigned rights against any eventual judgment.   But assuming that the order did so provide, no evidence of value was presented.   Also, the order left the decision whether to pursue the assigned rights wholly to the discretion of the plaintiffs in the case.   This, the court held, made it an abuse of discretion for the court to find the settlement in good faith, “because in the absence [of such a provision] the rights of the nonsettling defendants were unduly, unfairly and unnecessarily impaired.”  (Id., at p. 1036, 232 Cal.Rptr. 320.)   Similarly, here, no provision for credit was made.

 It is the burden of parties objecting to the good faith of a settlement to prove that fact.  (E.g.,  Rogers & Wells v. Superior Court, supra, 175 Cal.App.3d at p. 554, 220 Cal.Rptr. 767.)   Datsun and Globe were advised explicitly of that burden.   They failed to carry it.   What value, if any, was to be attributed to the assignment of the causes of action is a question of fact, to be determined as any other fact is—by evidence.

 Lawyers are constantly called upon to advise clients as to the value of potential litigation.   Lawyers and judges, engaging in settlement conference activity, regularly espouse views as to the value of causes of action, including causes of action for so-called insurance bad faith.   Once the nature of the causes of action here involved is identified it certainly should be possible—indeed it is necessary, under Tech-Bilt, supra—to estimate the potential recovery under the assigned causes of action.   Expert testimony from qualified lawyers is available.   At the good faith settlement hearing counsel for Globe and Datsun objected to the fairness of the settlement on the ground that they would not be able to receive credit for any recovery by plaintiff on the assigned causes of action.   But they proffered no declarations and no expert testimony concerning the value of the assignment.   In these circumstances there is no basis for us to alter the judgment received by plaintiff to provide for credit to Globe and Datsun for any value of the assignment.

We do not agree with Globe and Datsun that the value is to be measured by the difference between $1,250,000 on the one hand and the total amount of $979,875 received by plaintiff from the judgment and the Muniz settlement on the other hand.   Our disagreement comes from the fact that the good faith, vel non, of a settlement is to be determined “on the basis of information available at the time of the settlement.”  (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d at p. 499, 213 Cal.Rptr. 256, 698 P.2d 159.)   The settlement cannot be evaluated as of the time of trial.

VI

ISSUES CONCERNING TRIAL RULINGS1. Failure to Instruct

 (a) Mullens was called as a witness by plaintiff.   Globe tendered a requested instruction which would have told the jury of the sliding scale recovery agreement, in general terms, and the possibility that the agreement may bias Mullens' testimony.   Section 877.5, subdivision (a)(2) states that upon motion of a party the court shall disclose to the jury enough to be sure that the jury understands the essential nature of the agreement and the possibility of bias arising therefrom.   The trial court may refuse the instruction if the court finds that disclosure will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.   The trial court thought it to be premature to give the instruction prior to Mullens' testimony but thought the proper time to give it would be after or during cross-examination.   The matter was never brought up again and the trial court marked the proposed instruction as being withdrawn.

No error resulted.   While “prematurity” as such is not a reason to refuse the instruction, the trial judge here did not refuse it, but simply deferred giving it.   The record shows that, like most other able trial judges, this judge recognized the advisability of preinstructing the jury on various issues.   He did not have to give the instruction at the moment it was requested, and indeed could have deferred it until the end of the trial.  (§ 607, subd. 9.)   Since counsel did not, later on, request the court to give the instruction it was properly considered as withdrawn.

(b) It will be recalled that plaintiff was riding behind the two passenger seats of Muniz' automobile in a platform area designed for luggage.   The passenger seats were pulled forward to accommodate his legs.   He crawled in, curled into a fetal position and went to sleep.

Vehicle Code section 21712 (section 21712) reads, in pertinent part, as follows:

“(b) No person shall ride on any vehicle or upon any portion thereof not designed or intended for the use of passengers.

“(c) Subdivisions (a) and (b) shall not apply to any employee engaged in the necessary discharge of his duty or in the case of persons riding completely within or upon vehicle bodies in space intended for any load on the vehicle.”

Defendant Globe proffered, and both defendants urged the court to give an instruction concerning the statute.¹¹  The trial court refused to give the instruction, stating that it really regretted not being able to do so but feeling that what subdivision (b) gave, subdivision (c) took away.

The two latest decisions to interpret the statute are Albania v. Kovacevich (1941) 44 Cal.App.2d 925, 113 P.2d 251 and Gerritsma v. Vogelaar (1968) 266 Cal.App.2d 210, 72 Cal.Rptr. 89.   In Albania, several farm workers were riding on a flat-bed truck and trailer with their legs hanging over the left side of the truck.   They were injured when sideswiped by a truck traveling the opposite direction which had crossed the center line of the road while passing another vehicle.   It was argued that the injured workers were negligent per se because they violated the predecessor statute to section 21712.   That statute was substantially similar to the present section, the only difference being that the language of the former statute stated that the statute did not apply “to persons riding within vehicle bodies in space intended for merchandise.”   The court rejected the argument.   It stated that the section was “primarily intended to prevent persons from hanging on the outside portions of vehicles or from riding in positions which would add to the hazards which might normally be expected in the ordinary operation of such vehicles, or in the event such vehicles were struck by other vehicles.”   (Albania v. Kovacevich, supra, 44 Cal.App.2d at p. 928, 113 P.2d 251.)   The court also rejected a contention that the merchandise-space exception did not apply.

Conversely, in Gerritsma, a plaintiff was riding in a prone position on top of plywood placed in a screwed on luggage rack located on the roof of a minibus.   She was thrown off when the vehicle went around a curve.   The court applied section 21712, pointing out that the roof of the vehicle was not designed for passenger use nor “intended for any load on the vehicle.”  (266 Cal.App.2d at p. 216, 72 Cal.Rptr. 89.)   The addition of the luggage rack did not bring plaintiff within the exception of (now) subdivision (c).

 We construe the statute as not to apply to our facts.   Hence, the trial court was correct in refusing to give the instruction.   Globe and Datsun point out that the statute was intended to promote safety and that there was testimony that plaintiff received his injuries because of his position in the vehicle, the driver having observed him after the accident with his head and shoulders up against the rear of the seats.   There also was testimony from the driver that it was not unusual for passengers to ride in the luggage space and from a defense expert that the car was not designed to carry passengers in the space.   Nevertheless, it is clear that, so far as section 21712 is concerned, plaintiff was squarely within the exception of subdivision (c).   He was “riding completely within ․ [a] vehicle bod[y] in space intended for any load on the vehicle.”   This does not make subdivision (b) meaningless.   Persons riding upon odd places, such as roofs, hoods or trunk deck-lids are clearly in violation of the section.   Thus, the exception of subdivision (c) is not as broad as the prohibition found in subdivision (b).   Accordingly, no error was committed by refusing the instruction.

2. Alleged errors regarding witnesses.

(a) Datsun, but not Globe, argues that error occurred when the trial court allowed plaintiff's brother, Edward Kasanjian, to testify as to “his undisclosed examination of the accident vehicle.”   Datsun propounded interrogatories calling for the identification of any persons who examined, tested, looked at, studied or reviewed the wheels and tires or who came to the accident scene.   Edward Kasanjian was not identified.   On about the fifth day of testimony plaintiff called Edward Kasanjian as a witness.   He described himself as having had engineering training but stated that he was working as a stockbroker.   He testified that he drove by the scene of the accident and that, the next day, went to the impound lot where the vehicle was located, and took pictures of the car.   At this point a very lengthy hearing was undertaken by the trial court, out of the presence of the jury.

Counsel for plaintiff explained that he had not known of Edward Kasanjian's activities in driving past the accident scene and going to the impound lot the day after the accident until the very start of trial.   At that time, he explained, Edward Kasanjian overheard an exchange between counsel as to the “chain of custody” of the wheel and came forward and volunteered to counsel for plaintiff that he had gone to the impound yard and taken the photographs.   Counsel further stated that he was not plaintiff's initial attorney and that the latter had handled the case for some time after the accident occurred.   He also stated that plaintiff himself, who was seriously injured, had no knowledge, until the commencement of trial, that his brother Edward had done these things.   The trial court accepted counsel's statement that he had not intended to mislead anyone.   The court refused requests to prevent the witness from testifying and, later, denied motions for mistrial and for new trial based on the testimony which the witness was allowed to give.   The court sharply limited the testimony of the witness.   It precluded him from testifying to any investigation of the vehicle, and allowed him to testify only as to “chain of custody” of the portion of the wheel which remained on the vehicle.   The court thus allowed Edward Kasanjian to identify photographs he took as being photographs of the wheel and other portions of the vehicle, stating that it did not consider this to constitute investigation within the meaning of the interrogatories.   Testimony as to the condition of the vehicle was precluded.

 We believe the trial court acted within its discretion in allowing the limited testimony.   The court accepted the explanation of counsel for plaintiff as to the circumstances which led up to the omission of Edward Kasanjian's name from the interrogatory answers.

In this context, and taking as a whole the cases dealing with this subject, there is no reason the identification testimony should have been excluded.

Singer v. Superior Court (1960) 54 Cal.2d 318, 325, 5 Cal.Rptr. 697, 353 P.2d 305, stated in dictum that even if a party omitted facts known to the party because of good faith mistake when answering an interrogatory, the facts could come into evidence later.

Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 105 Cal.Rptr. 276, upheld the action of a trial court in refusing to allow a witness to testify where the plaintiff willfully failed to include the name of the witness in identifying persons who had been at the scene of the accident immediately or shortly after its happening.   There was no other witness able to establish liability for the accident as being that of defendant.   The court listed, as one ground for its ruling, the fact that the response given to the interrogatory went directly to defendants' preparation for trial and seriously impeded it.   Even in this context, the court stressed that the answer was willfully false.  (29 Cal.App.3d at p. 275, 105 Cal.Rptr. 276.)  (See also, Campain v. Safeway Stores, Inc. (1972) 29 Cal.App.3d 362, 104 Cal.Rptr. 752.)

In Crumpton v. Dickstein (1978) 82 Cal.App.3d 166, 146 Cal.Rptr. 840, it was held to be reversible error, in a medical malpractice case, to allow two doctors to testify as defense experts, when their names had not previously been disclosed in response to appropriate interrogatories even though there had been no willful omission.   The two witnesses had testified, in effect, that the defendant doctor had acted in accordance with proper medical standards.   In reaching its conclusion the court stressed that Thoren was not necessarily limited to instances of bad faith.

Had the trial court, here, let Edward Kasanjian testify as to opinions and conclusions as to the condition of the vehicle, or as to the cause of the accident, error might well have occurred.   But his testimony only identified the remaining parts of the wheel as having come from the Muniz vehicle.   Taken with the lack of any evidence of bad faith, no error occurred.

We note, also, that if admission of the testimony was thought to be error, it was not prejudicial.   Another witness, an expert who had previously been hired by Muniz' insurer, testified that he went to the impound lot and removed the portions of the broken wheel, and other parts, which remained on the Muniz vehicle.   This testimony, by itself, was enough to establish “chain of custody,” to the extent that was an issue.

 (b) Alfred Hofstatter qualified as an expert in metallurgy and wheel analysis.   He expressly disclaimed any expertise in “accident reconstruction.”   Datsun, but again not Globe, complains that Hofstatter erroneously was allowed to testify in the area of accident reconstruction and thereby went beyond the area of his expertise.   The evidence complained about is set forth in a footnote.¹²

“ ‘A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.’  (Evid.Code, § 720, subd. (a).)  The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown.   [Citations.]”  (People v. Kelly (1976) 17 Cal.3d 24, 39, 130 Cal.Rptr. 144, 549 P.2d 1240.)

While it is true that a person who is expert in one field may not be allowed to give an opinion in an allied field (ibid.), the testimony complained about did not go outside Hofstatter's conceded expertise as an expert in metallurgy and wheel analysis.   The trial court stated that it did not draw the distinction contended for by Datsun—that an accident reconstruction is something different than an analysis of the wheel on an automobile that collapses.   Neither do we.   Looking at the testimony complained about (fn. 12, supra ) no error and no abuse of discretion occurred.

3. Other claimed errors.

(a) Globe, not Datsun, argues that plaintiff's counsel argued improperly by referring to a person whose name had been mentioned in the evidence and asking why he, “as a real wheel expert” had not been brought in by defendants.   Counsel for Datsun made similar arguments thereafter.   The next morning counsel for Globe asked that “the jury be admonished” not to speculate why certain people were not called when any party could have brought them in.   The court declined the request.   There is nothing to the point.

(b) Datsun argues that the jury's verdict included a factor for the effect of future inflation, that no evidence or other material was properly before the jury to enable it to compute such a factor, and that the amount of the verdict was therefore improper.   It is not disputed that an estimate of inflationary effect on the amount of a judgment cannot be drawn from thin air, but must be based on sound and substantial economic evidence.  (Rodriguez v. McDonnell Douglas Corporation (1978) 87 Cal.App.3d 626, 662, 151 Cal.Rptr. 399, referring to United States v. English (9th Cir.1975) 521 F.2d 63, 76.)   The trial court instructed the jury that one element of damages was the present cash value of earning capacity reasonably certain to be lost in the future as a result of the injury in question.  (BAJI No. 14.12.)   It also instructed that the life expectancy of a male person of plaintiff's age was 47.5 years, a figure to be considered in connection with other evidence.  (BAJI No. 14.69)

It is clear that the jury may take inflation into account in computing the damages to be awarded.  (Rodriguez v. McDonnell, supra, 87 Cal.App.3d at p. 662, 151 Cal.Rptr. 399.)   Datsun complains, however, that while a present value table was provided to the jurors in the jury room at least three, and maybe four, of the jurors never saw it and did not use it.   Therefore, Datsun argues, no evidence backed up the award.   To support its contention Datsun relies upon declarations from three jurors, which Globe furnished to the trial court in connection with a motion for new trial.

Each of them states that a figure of $15,000 per year future earnings was arrived at and multiplied by 47.5 years to arrive at the loss of earnings component of the award.   Each of the declarants states that he or she did not see a present value table;  two of the jurors say such a table was not used.   One says present cash value was discussed, another says it was not discussed in detail and the third says the award was not reduced to present cash value.   The declarations are set forth in the margin.¹³  Plaintiff responded with declarations from eight jurors, including all three of the jurors who furnished declarations to Globe.   These declarations all state that the effect of current interest rates and inflation was discussed before the award was rendered.   Three state they do not recall the present value tables being in the jury room although they remember, for the most part, that Globe's counsel discussed them in closing argument.   Four state that the tables were present in the jury room and one of these declarants says the jury used them.   The eighth declarant does not mention the tables.   The trial court denied the motion for new trial without comment.

Evidence Code section 1150 reads as follows:

“(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.   No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.

“(b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict.”

Plaintiff complains that the declarations relied upon by Datsun were not admissible.   We reluctantly disagree.   In Krouse v. Graham (1977) 19 Cal.3d 59, 80, 137 Cal.Rptr. 863, 562 P.2d 1022, the court said:

“We carefully explained in People v. Hutchinson (1969) 71 Cal.2d 342 [78 Cal.Rptr. 196, 455 P.2d 132], that section 1150 properly distinguishes between ‘proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved, ․” (P. 349 [78 Cal.Rptr. 196, 455 P.2d 132].)   In Hutchinson we approved the admission of jurors' affidavits, for purposes defined and limited by section 1150, adding, however, that ‘The only improper influences that may be proved under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.  [Citations.]’  (P. 350 [78 Cal.Rptr. 196, 455 P.2d 132].)”

The court in Krouse was concerned with juror declarations which stated that the verdict for the plaintiffs had been increased by an amount which the jurors estimated would be paid by the plaintiffs in legal fees.   The trial court had refused to consider the declarations.   The court characterized the declarations as inconclusive.   On the one hand, statements in them that there was discussion and agreement that attorney's fees should be included in the judgment and what fees were included were said to be matters objectively verifiable, subject to corroboration and within the statute.   In contrast, statements that jurors commented on the subject of attorney's fees and considered the matter in determining the final award were held to concern the jurors' mental processes and were not admissible.

In Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 185 Cal.Rptr. 654, 650 P.2d 1171, Ford Motor Company produced declarations that certain jurors had been inattentive during the trial, one having been seen to read a novel throughout the trial and others having worked crossword puzzles.   Jurors identified as doing these activities denied in counter-declarations that any extraneous activities diverted their attention.   The court held that the counter-declarations were inadmissible, going to the subjective mental processes of the jurors.  (See also, Drust v. Drust (1980) 113 Cal.App.3d 1, 8–9, 169 Cal.Rptr. 750.)

The declarations here are inconclusive.   The statements of three jurors that the award was a product of multiplying 47.5 by $15,000 cannot be distinguished from the declarations in Krouse which said that the parties discussed the subject of attorney's fees and specifically agreed to increase the verdicts to include the fees.   The Supreme Court majority said that such statements “would appear” to constitute an objectively verifiable matter.  (19 Cal.3d at p. 81, 137 Cal.Rptr. 863, 562 P.2d 1022.)   In Drust the majority opinion reached a similar conclusion, thus bearing out the prediction of the Krouse dissent that the opinion of the court would be read “as compelling inquiry into the mental processes by which the jurors arrived at their award.”  (19 Cal.3d at p. 85, 137 Cal.Rptr. 863, 562 P.2d 1022.)   We agree with the dissents in Krouse and Drust.   As Justice Compton stated in his Drust dissent, “No amount of semantics or legal legerdemain can convert a jury's mathematical computations from a ‘mental process' to an ‘overt act’ ”.   We join with Justice Mosk in expressing “apprehension at an incipient trend, that of losing parties attempting to impeach jury verdicts.  [This is seen in numerous appeals] ․ based on juror affidavits.   Giving such appeals ․ any credence prevents the finality of judgments, places additional burdens on the judicial process, and contributes to disenchantment with the tort system․”  (Ballard v. Uribe (1986) 41 Cal.3d 564, 575, 224 Cal.Rptr. 664, 715 P.2d 624 (conc. opn. of Mosk, J.).)  (See also, Johns v. City of Los Angeles, (1978) 78 Cal.App.3d 983, 989, 144 Cal.Rptr. 629.)

 Nevertheless, we are bound by the holding in Krouse (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937).   In this state of affairs, plaintiff's reliance upon Cherrigan v. City and County of San Francisco (1968) 262 Cal.App.2d 643, 655, 69 Cal.Rptr. 42 is of no avail.  Cherrigan is at odds with Krouse.   Thus, the declarations of the three jurors are properly to be considered.   And, it is clear, that the declarations of the eight jurors (which includes the three just mentioned) that the jury discussed the effects of inflation and interest rates reflect the mental processes of the jurors and cannot be considered.

It does not follow that the judgment must be reversed.   Presumably the trial court performed its duties and, in denying the motion for new trial, considered the admissible evidence presented and the grounds argued in support of the motion, one of which was excessiveness of damages.   The court had to consider the declarations, under the law which we have just set forth, but it did not have to accept them as establishing the fact that the future damage component of the award was improperly arrived at.   The statements of the three jurors (see fn. 13, supra ) are phrased in terms of what “we” did.   They cannot speak for their fellow jurors without getting into the forbidden area of exploring their mental processes.   Thus, at best, three jurors have stated their conceptions of how the verdict figure was reached.   Contrast this with the facts of Drust v. Drust, supra, 113 Cal.App.3d at page 8, 169 Cal.Rptr. 750, where declarations were received from all 12 of the jurors.¹⁴  Implicit in Datsun's argument that the jurors' declarations establish that future damages were set without any evidentiary basis, is the proposition that the total damages awarded to plaintiff are excessive and, therefore, that the jury's conduct (if we assume it to be established) was not only error, but was prejudicial error.   The trial court may well have determined that if any error occurred it was not prejudicial and that the damages were not excessive.   In this respect we are aware that in reviewing the denial of a motion for new trial, while giving great deference to the discretion exercised by the trial judge, it is our duty to review the entire record so as to make an independent determination as to whether the error was prejudicial.  (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871–872, 135 Cal.Rptr. 647, 558 P.2d 545.)

 We also are aware that an appellant who urges error must set out in its brief all the evidence which bears on the issue so that the reviewing court can find that evidence in the record.   We are not obligated to search the entire transcript to find where the error occurred.  (Weltman v. Kaye (1959) 167 Cal.App.2d 607, 615, 334 P.2d 917.)   In this case Datsun has not fulfilled its duty to set out all the evidence concerning the amount of damage suffered by plaintiff.¹⁵  Datsun's brief points only to testimony that plaintiff had no post-high school education, that he worked on a catering truck, and that while he “retained some impairment of movement” (no record reference is supplied) he drives an unmodified automobile and cares for himself.   There is no reference to the medical testimony or to the testimony of persons who knew plaintiff as to the effect of his condition on his future prospects.   There is no reference to the hospitalization or treatment which plaintiff was forced to undergo.   In short, we simply are not told why the conduct of the jury, even if we deem it to have been established by the declarations of the three jurors, was prejudicially erroneous.

One more point should be noted.   The amount specified in the settlement entered into with Blue Line was $1,250,000.   While the ultimate judgment cannot be referred to in determining the good faith, vel non, of a settlement (because that would bring hindsight into the picture) no reason occurs to us why, in determining whether prejudice occurred from claimed error in jury proceedings, we should not look at the amount of the verdict and contrast it with the amount which some of the parties agreed represented a reasonable settlement figure prior to the trial.   The special verdict here was in the total sum of $1,306,500, an amount less than 5 percent in excess of the settlement figure of $1,250,000.   At the least, this close comparison of figures shows a lack of prejudice.

We reject Datsun's claim that alleged error in the jury's reckoning requires a reversal.

VII

THE CROSS–APPEAL

Some months prior to trial plaintiff served upon defendants an offer to compromise under section 998.   The offer was “to compromise his claim against defendants, as follows:

1. The entire case as against all of any of the defendants for the sum of $749,500.00.

2. Only as against defendant WHEEL DISTRIBUTORS, INC., and LLOYD MULLENS, individually, for $300,000.00.”   The offers were not accepted.   By way of cost bill, and a “motion for Pre-Judgment Interest” as well, plaintiff claimed prejudgment interest and expert witness fees pursuant to section 998 and Civil Code section 3291.¹⁶

 We agree with the trial court that the offer was not in the statutory language, and was so ambiguous that the clerk could not properly have entered judgment upon it.   When a remedy is created by statute persons seeking to take advantage of the remedy must comply strictly with the statute.  (Hutchins v. Waters (1975) 51 Cal.App.3d 69, 72–73, 123 Cal.Rptr. 819.)   Here the offer was such that the clerk would have had difficulty in entering a judgment—was it to be for $749,500, or, if Blue Line and Mullens had accepted the offer was it to be for $300,000 less?   Was it an offer to allow judgment to be taken at all?   Plaintiff's point on the cross-appeal is not well taken.

VIII

DISPOSITION

The appeals from the orders denying motions for new trial are dismissed.   The orders (judgments) dismissing the cross-complaints of Globe and Datsun are reversed.   The judgment in favor of plaintiff is affirmed.

On plaintiff's cross-appeal the orders taxing and striking costs and denying interest are affirmed.

Plaintiff is to recover his costs on appeal.

FOOTNOTES

FOOTNOTE.  

1.   The first named defendant in plaintiff's complaint Keystone Products, Inc. was dismissed from the action on motion for nonsuit.   That dismissal is not contested here and Keystone is not a party to the appeal.

2.   Subdivision (e) of Code of Civil Procedure section 877.6 now provides for review by writ of mandate.

3.   The rule also states the 60–day period shall run after the date of mailing notice of entry of judgment by the clerk pursuant to Code of Civil Procedure section 664.5.   The section does not now call for the clerk of a superior court to mail such notices.

4.   We have called for and examined the superior court file which contains this notice.   It is not part of the record on appeal, although Mullens attached a copy of it to his brief.

5.   No one has explained how plaintiff could have had a judgment entered against Mullens or his wife since they are not parties to the complaint.

6.   We have not determined that the settlement was in bad faith as to Blue Line;  our holding with respect to that defendant goes no farther than to say that a suspended corporation may not seek to have a settlement entered into by it blessed by a good faith determination under Code of Civil Procedure section 877.6.Datsun argues that the settlement agreement was not made in good faith because there was no reason to include Mullens in it.   Mullens was not named as a defendant by plaintiff.   By the date of the agreement (Apr. 16, 1984) any cause of action by plaintiff against Mullens arising out of the accident, which happened April 6, 1980, was long barred by the statute of limitations.   Nevertheless, by the simple act of Mullens entering into the agreement, and the trial court finding it to be in good faith, Mullens, as cross-defendant, has been immunized from any potential liability to Globe, as cross-complainant.   Pausing here, the Mullens agreement clearly would be in bad faith.  (Henderson v. Superior Court (1984) 162 Cal.App.3d 297, 300, 208 Cal.Rptr. 484.)   But we cannot stop at this point.   The burden of proving the agreement was in bad faith was on Globe and Datsun.   (§ 877.6, subd. (d).)  The agreement provides, in its paragraph 4, that Mullens, and Blue Line, assign to plaintiff their rights and causes of action against their insurance carriers, brokers, and agents effective on entry of the judgment against Blue Line and Mullens provided for in the agreement.   We are not shown on this record what rights Mullens did or did not have, which he could assign.   At the hearings at which the good faith determination was made, the only information offered was a statement of counsel for plaintiff that Blue Line had a $300,000 policy of insurance, which the insurer refused to honor on the ground the policy had lapsed.   Neither Globe nor Datsun offered any evidence that Mullens did not have anything of value to assign.   If he did not, bad faith in the sense of collusion is manifest.   If he did, that result does not necessarily follow.   Since Globe and Datsun did not carry their burden, we make no finding that the settlement agreement was in bad faith so far as Mullens is concerned.

7.   All further section references are to sections of the Code of Civil Procedure unless otherwise specified.

8.   Actually, the judgment received by plaintiff was $15,000 less than that on account of a reduction due to the settlement received from Muniz, the driver.

9.   The Supreme Court has granted review of both Riverside Steel and Abbott Ford but in each case has ordered that the opinions in those cases remain published and citable pending further decision by the Supreme Court.

10.   “GUARANTEE SETTLEMENT AGREEMENT“1. This Guarantee Settlement Agreement is entered into between Plaintiff PETER KASANJIAN and defendant WHEEL DISTRIBUTORS, INC., dba BLUE LINE and LLOYD MULLENS, an Individual (hereinafter referred to as ‘Settling Defendants').   The subject matter of this Agreement is a Products Liability lawsuit arising out of an accident which occurred April 6, 1980 at the interchange of the Santa Ana Freeway and 605 Freeway, Los Angeles County, California, which is the subject matter of a lawsuit identified as L.A.S.C. No. SEC 34276 (hereinafter referred to as ‘this case’ or ‘the case’).“2. Said Settling Defendants agree and guarantee that Plaintiff shall obtain and collect a Judgment of at least $1,250,000 against the other defendants who have appeared in this case and agree that Judgment up to this $1,250,000 guarantee amount shall be entered against these Settling Defendants if Plaintiff is not able to obtain and collect a Judgment against the other non-settling defendants of at least $1,250,000.“3. If no Judgment is obtained and collected as against the other non-settling defendants, then these settling Defendants agree that a Judgment can be entered against these Settling Defendants in this case for $1,250,000.   If, however, a Judgment is obtained and collected against the non-settling defendants for a sum less than $1,250,000, then these Settling Defendants agree that a Judgment shall be entered against these settling Defendants for the difference between $1,250,000 and the Judgment obtained and collected from the non-settling defendants.   It is the purpose of this Agreement that the Settling Defendants guarantee that Plaintiff will obtain and collect $1,250,000 as a result of further litigation of the case as against the other non-settling defendants.“4. In exchange for the foregoing, and in exchange for an agreement by Plaintiff not to further prosecute this case, or any other claim arising out of the accident of April 6, 1980 as against said Settling Defendants, nor to execute on the Judgment to be entered against LLOYD MULLENS, personally and/or against the wife of LLOYD MULLENS personally, said Settling Defendants agree to assign and convey to Plaintiff all rights and causes of action which these Settling Defendants may have against their insurance carrier, brokers, agents, or anyone else which is lawfully assignable, and including but not limited to, causes of action for insurance bad faith, breach of fiduciary obligations, breach of contract.   Accordingly, Plaintiff covenants and agrees to this agreement not to execute on the judgment procured pursuant to this agreement against LLOYD MULLENS and/or his wife, individually, or further prosecute this action or any other claim arising out of the accident of April 6, 1980 as against these Settling Defendants, and these defendants agree to assign and do assign their rights and causes of action as aforesaid effective on the Entry of Judgment as against WHEEL DISTRIBUTORS, INC., dba BLUE LINE and LLOYD MULLENS, individually as provided hereinabove.  [Signatures omitted.]”

11.   The proffered instruction read, “If you find that a party to this action violated California Vehicle Code Section 21712, the statute just read to you, and that such violation was a proximate cause of injury to plaintiff, you will find that such violation was negligence.”   The parties have made no contention that this language is in itself incomplete or ambiguous, but we have not been told, except by inference, which part of the statute the defendants proposed should be read to the jury.   We assume, since it is the portion in their favor, that a reading of subdivision (b) of section 21712 was contemplated.

12.   The witness was asked the following hypothetical question:“Q. BY MR. HERZOG:  Mr. Hofstatter, I want you to assume the following.   On April 6, 1980, plaintiff Peter Kasanjian, was an occupant of a 1974 Datsun 260Z automobile involved in an accident approaching the 605 Freeway south in the vicinity of the transition lanes from the southbound Santa Ana Freeway.“This 1974 Datsun 260Z automobile had Blue Line aluminum dish wheels purchased from Culver City Datsun.   Culver City Datsun purchased the wheels from Globe Tires.   The first owner had one of these Blue Line aluminum dish wheels replaced because it was leaking air through the wheels.   This replacement was made by Globe Tires.“At the time of this accident, this vehicle had 82,000 miles.   Exhibit 3 and 4 were mounted on this vehicle at the time of the accident.   Exhibit 2 is the remnant of the Blue Line aluminum dish wheel which had been on the left-front side of this vehicle at the time of this accident.“At approximately 2:00 to 2:30 a.m. while transitioning from the Santa Ana south to the 605 south at about 45 miles per hour and while on the transition road, driver Rafael Muniz started to experience steering difficulties.   These steering difficulties were in the form of vibrations through the steering wheel unlike any other kind of vibration he ever felt before or since.   These vibrations commenced at approximately M–1 on exhibit 17.   These steering wheel vibrations progressed.   Driver Rafael Muniz lost more and more control of his vehicle.   Several seconds later and at the vicinity of M–2 on exhibit 17, the vibrations and gyrations of the wheel became much more severe.   They had reached a point where driver Rafael Muniz felt that they had become so radical that all control had been lost.   He thereafter felt at least one severe impact.   He thereafter felt a series of other impacts.   Driver Rafael Muniz felt the car shaking, twisting, spinning and other jolt-like impacts.   His car spun out, hit the center divider, and came to rest as indicated in the center divider area somewhere off to the right of exhibit 17.“During the sequence of events, while the vehicle was still on the transition road, a driver following driver Rafael Muniz, witness Nigel Craig, saw the tire and outer rim of the wheel separate from the vehicle and bounce down the freeway.   He stated that he saw this wheel separation when the Datsun was in the vicinity of C–1 on exhibit 17.   Witness Craig at the time he witnessed this wheel separation was at the vicinity of C–2 and traveling about 40 miles per hour.   Up to this point witness Craig had noticed nothing unusual about the operation of the Datsun.“Remnants of the left-front Blue Line aluminum dish wheel remained attached to the left-front hub of the vehicle in substantially similar configuration as depicted in the photographs in evidence.   The photographs were taken in the wrecking yard where the vehicle was towed after the accident.   The damage depicted in the photographs did not exist before the accident.”Based upon that question he stated that within a reasonable degree of probability he could make a determination of the cause for the break-up of the wheel.   He then testified:“A. It is my opinion that the wheel suffered a slow growing fatigue crack to the point where the structure of the wheel was weakened and it started to, under normal road conditions of driving, started to deflect severely, causing the vehicle's loss of control and subsequently totally fractured and the remnants remain on the hub with the rim and tire separating from the vehicle.”

13.   “DECLARATION OF HORACE S. GILBERT“I, Horace S. Gilbert, declare that I was one of the jurors on the Kasanjian v. Keystone trial, Case No. SEC 34276.   While the jury foreman read the jury instructions to us, no mention was made of a present value table that we were to use.   If in fact there was such a table in the instructions, I did not see it and it was not used in our calculations while deciding on the future loss of earnings.   We used the figure of $15,000.00 per year future earnings, multiplied it by life expectance of 47.5 years and came up with a future loss of earnings of $712,500.00.   We discussed the meaning of present cash value, since we had no way to determine what the future might bring to the value of money.   I declare under penalty of perjury that the foregoing is true and correct.   Executed at La Habra Heights, California on June 13, 1984.   S/HORACE S. GILBERT”“DECLARATION OF GERALD L. GOODEN“I, Gerald L. Gooden, declare that I was one of the jurors on the Kasanjian v. Keystone trial, Los Angeles Superior Court Case No. SEC 34276.   We arrived at the future loss of earnings figure by taking the amount of $15,000.00 per year earnings and multiplied [sic. ] it by the life expectancy figure of 47.5 years, arriving at a total future loss of earnings for Mr. Kasanjian of $712,500.00 which we awarded the plaintiff.   We did not discuss the meaning of the present cash value of the award in detail although interest earning capability of whatever award was arrived at, was discussed.   If in fact there was a present value table among the instructions we were given, I did not see it and we did not use it in arriving at the ultimate figure.“I declare under penalty of perjury that the foregoing is true and correct.“Executed at La Mirada, CA on June 13, 1984.“S/Gerald L. Gooden”“DECLARATION OF MARIE A. KELSO“I, Marie A. Kelso, declare that I was one of the jurors on the Kasanjian vs. KEYSTONE trial, Case No. SEC 34276.   At the time we computed the future loss of earnings for Mr. Kasanjian, a present value table was not used.   When we were discussing the future annual salary, that Mr. Kasanjian would have earned if he had not been injured, the $15,000.00 was an adjusted figure based on several factors.   One being that the money would be invested and earn interest.   The other being that since the plaintiff was not 100% disabled, he had an earning potential and that the $15,000.00 would be a supplement to his additional earnings.   We took the $15,000.00 adjusted annual salary, multiplied it by 47.5 years of future employment, if the plaintiff has not been hurt, and came up with a total future loss of earnings of $712,500.00.   That figure in itself was not reduced to its present cash value.   I did not see a present value table, if it was included in the jury instructions.“I declare under penalty of perjury that the foregoing is true and correct.“Executed at Los Angeles, CA. on June 27, 1984.   Signed:  S/Marie A. Kelso”

14.   We do not for a moment mean to suggest that dissatisfied counsel should strive to get more and more juror declarations to contest the amount of damages awarded.   As is evident, our view is that any such attacks should be limited strictly to proof of truly objective events.   (Ballard v. Uribe, supra, 41 Cal.3d at p. 576, 224 Cal.Rptr. 664, 715 P.2d 624 (conc. opn. of Mosk, J.).)

15.   Rule 13, California Rules of Court requires an appellant's opening brief to set forth “concisely, but as fully as necessary for a proper consideration of the case ․ a summary of the material facts․”  Rule 15(a) requires that “[t]he statement of any matter in the record shall be supported by appropriate reference to the record․”

16.   Subdivision (d) of section 998 reads as follows:“(d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment, the court in its discretion may require the defendant to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, the preparation or trial of the case by the plaintiff, in addition to plaintiff's costs.”The second paragraph of Civil Code section 3291 reads as follows:“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 accrue until the satisfaction of judgment.”

COLE,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

LILLIE, P.J., and THOMPSON, J., concur.