[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL from a judgment of the Superior Court of Sacramento County, Robert Ahern, Judge. (Retired judge of the Santa Clara Sup.Ct. assigned by the Chief Justice pursuant to [166 Cal.Rptr.3d 555]art.
VI, § 6 of the Cal. Const.) Affirmed as modified. (Super. Ct. No. 06AS00671)
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Ortiz Law Office, Jesse S. Ortiz III; Jay-Allen Eisen Law Corporation, Jay-Allen Eisen, Sacramento, and Aaron S. McKinney, Stockton, for Defendant and Appellant.
Law Offices of John P. Henderson, John P. Henderson, Auburn, and David C. Henderson, Woodland, for Plaintiff and Respondent.
BLEASE, Acting P.J.
Following a bench trial, the trial court found defendant Joseph Monier " molested his biological cousin, Plaintiff [F.P.,] numerous times when she was ten years old" and ordered him to pay damages to plaintiff in the amount of $305,096, consisting of $55,096 for special economic damages ($44,800 for lost income and $10,296 for past and future medical expenses), and $250,000 for general noneconomic damages.
Defendant appeals, contending the trial court erred in failing to issue a statement of decision following his timely request for one, and the error is reversible per se. According to defendant, " [w]ithout a statement of decision, it is impossible to tell whether the trial court allocated general damages as required by Proposition 51."  Defendant also claims there is no substantial evidence to support the trial court's award of lost income, and the trial court erred in failing to offset defendant's parents' $275,000 pretrial settlement with plaintiff against plaintiff's economic damage award.
We shall conclude the trial court erred in failing to issue a statement of decision. Although such a failure is often treated as reversible per se ( Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129, 210 Cal.Rptr. 114 ( Miramar )), we find no miscarriage of justice permitting a reversal here. (Cal. Const., art. VI, § 13.) Significantly, we shall conclude defendant forfeited any right to apportionment under Proposition 51 by failing to timely raise the issue at trial; thus, the absence of a statement of decision on the issue of general noneconomic damages is of no consequence. We shall further conclude that substantial evidence supports a finding plaintiff lost income in the amount of $42,120, not $44,800 as found by the trial court, and defendant is entitled to a setoff from plaintiff's adjusted award of economic damages in the amount of $47,664. Accordingly, we shall modify the judgment to reduce the amount of special economic damages defendant must pay plaintiff to $4,752 and the total judgment to $254,752, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
In 1990 and 1991, defendant, who was 17 years old and a senior in high school, committed various acts of sexual battery upon plaintiff, his 10-year-old cousin. Such acts included plaintiff orally copulating defendant, and defendant performing anal sex on plaintiff. This conduct occurred while
plaintiff was under the care and supervision of defendant's parents.  [166 Cal.Rptr.3d 556] During the same period of time, plaintiff's father also was sexually abusing her by touching her genitals and having vaginal intercourse with her.
Plaintiff first sought treatment for depression and anxiety, which she attributed to the sexual abuse, in 2005 when she was 24 years old. From June until approximately August 2005 she received counseling from Christine Volker, and from September 2005 until December 2007 she was treated by Dr. Laurie Wiggen, a licensed clinical psychologist. Dr. Wiggen diagnosed plaintiff with posttraumatic stress disorder, which she attributed to the trauma plaintiff suffered as a result of being molested by her father and defendant. Dr. Wiggen could not distinguish between the harm done by plaintiff's father and defendant; rather, she opined that their conduct was " cumulatively impactful in their damage emotionally to [plaintiff]...."
Plaintiff also was evaluated by Dr. Eugene Roeder, a licensed psychologist, in July 2005. The purpose of that one-day evaluation was to assess plaintiff's psychological functioning. Dr. Roeder diagnosed plaintiff with major depression, an anxiety disorder, and posttraumatic stress disorder. According to Dr. Roeder, the posttraumatic stress disorder diagnosis is consistent with plaintiff's " descriptions of being a sexual molest victim." Like Dr. Wiggen, Dr. Roeder could not distinguish between the symptoms plaintiff was experiencing as a result of being molested by defendant from those she was experiencing as a result of being molested by her father, but he found " the sexual molestation by her father was dramatically more traumatic than by her cousin [ (defendant) ] .... [¶] ... [¶] ... because her relationship with her father was a much more central, basic relationship in her life" and " [h]er relationship with the [defendant] was more tangential."
In February 2006, plaintiff initiated the instant action against defendant and defendant's parents. In her complaint, plaintiff asserted causes action against defendant for sexual battery in violation of Penal Code sections 288, subdivisions (a) and (b)(1) (lewd and lascivious acts), 288a, subdivisions (b)(1) and (c)(2) (oral copulation), 286, subdivisions (b)(1) and (c)(2) (sodomy), and 289, subdivisions (a)(1) and (b) (sexual penetration). She also asserted causes of action against defendant for gender violence (Civ.Code, § 52.4, subd. (a)) and intentional infliction of emotional distress. Plaintiff asserted a negligence cause of against defendant's parents, claiming they failed to reasonably care for, supervise, direct, oversee, and protect her
from the harm inflicted upon her by defendant. As relevant here, plaintiff prayed for general and special damages " jointly and severally as to all defendants."
In his answer, defendant denied the allegations and asserted 16 affirmative defenses, including that others were at fault as to the matters and things alleged by plaintiff and that any liability should be apportioned among them.
Prior to trial, defendant's parents' homeowner's insurance carrier settled plaintiff's negligence cause of action against defendant's parents for $275,000 in exchange for a general release. A copy of the settlement agreement was filed with the trial court on February 4, 2008, and the trial court specifically was made aware of the settlement prior to trial.
The matter was tried to the court without a jury. On April 29, 2009, the trial court orally announced its tentative decision, finding defendant committed the acts complained of by plaintiff, and his conduct was a substantial factor in causing her injuries. ( [166 Cal.Rptr.3d 557]Cal. Rules of Court, rule 3.1590.) The trial court indicated it was awarding damages to plaintiff in the amount of $305,096, consisting of $44,800 for lost income, $10,296 for past and future medical expenses, and $250,000 for general noneconomic damages. The trial court instructed plaintiff's trial counsel to prepare a judgment.
Later that same day, defendant timely filed a request for a statement of decision. (Code Civ. Proc., § 632; Cal. Rules of Court, rule 3.1590(d) & (n).) As relevant here, the request sought a statement setting forth " the basis upon which the Court awarded special damages, the basis upon which the court awarded emotional distress damages, the basis upon which the court awarded past and future medical expenses, and the basis upon which the court granted lost wages." Meanwhile, plaintiff's trial counsel prepared a judgment and submitted it to the trial court on May 1, 2009, along with a declaration outlining the events leading up to its submission. In his declaration, plaintiff's trial counsel explained that he faxed a copy of the judgment to defendant's trial counsel following trial on April 29, 2009, and was informed that defendant's trial counsel was no longer at that number. The next day, plaintiff's trial counsel faxed a copy of the judgment to defendant's trial counsel's new fax number and left a voicemail message advising him that the trial court " needed the Judgment Following Court Trial reviewed and signed if approved, immediately as [the trial judge, who was visiting,] was leaving Sacramento on May 1, 2009." Plaintiff's trial counsel did not hear from defendant's trial counsel and submitted the judgment to the trial court the next day, May 1, 2009. The record fails to disclose that any notice was taken
by the trial court of defendant's request for a statement of decision, and judgment was filed on May 1, 2009, without any formal statement of decision having been rendered.
Defendant timely ...