Marteney v. Elementis Chemicals Inc.

Filed 10/5/18; Certified for Publication 11/1/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

BRUCE MARTENEY et al., B283411

Plaintiffs and (Los Angeles County
Respondents, Super. Ct. Nos. BC 489395,
JCCP 4674)
v.

ELEMENTIS CHEMICALS INC.,

Defendant and Appellant.

APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Charles F. Palmer, John J. Kralik,
Judges. Affirmed.
Dehay & Elliston, William H. Armstrong, Jennifer D.
Fitzpatrick, and Catherine M. Reichhold for Defendant and
Appellant.
Weitz & Luxenberg, Benno Ashrafi, and Josiah Parker for
Plaintiffs and Respondents.

__________________________________
 In the underlying action, Marty and Marie Marteney
prevailed on their personal injury and loss of consortium claims
against appellant Elementis Chemicals, Inc. (Elementis). While
Elementis’s appeal from the judgment on those claims was
pending, Marty Marteney died, and respondents became parties
to the action in order to assert wrongful death claims against
Elementis. After a jury found that respondents were entitled to
damages, the trial court determined Elementis’s liability for
damages in light of prior settlements (Code Civ.Proc., § 877),1 and
rendered a judgment in respondents’ favor. Elementis contends
the court lacked jurisdiction to enter that judgment, and erred in
valuing the settlement credits to which Elementis was entitled.
We reject those contentions and affirm.

RELEVANT FACTUAL AND PROCEDURAL
BACKGROUND
Respondents Bruce Marteney, Steve Marteney, and
Chrystal Dahlstein are the adult children of Marty and Marie,
who were the original plaintiffs in the underlying action.2 We
summarize the proceedings culminating in the judgment in favor
of Marty and Marie before describing the events relevant to the
appeal before us.

1
All further statutory citations are to the Code of Civil
Procedure, unless otherwise indicated.
2
Because the original plaintiffs and two respondents share
their surname, we refer to the original plaintiffs by their first
names.

2
 A. Trial and Judgment on Original Complaint
In August 2012, Marty and Marie commenced the action,
asserting claims for negligence, breach of warranties, strict
liability, and loss of consortium against Elementis, Union Carbide
Corporation (UCC), and other defendants involved in the
manufacture and marketing of asbestos-containing products.
Their complaint alleged that Marty suffered from mesothelioma
due to his exposure to asbestos from the defendants’ products.
Prior to trial, Marty and Marie entered into settlements
with several defendants totaling $2,390,000. As a result of the
settlements and other dispositions, at the commencement of jury
selection, UCC and Elementis were the only defendants to appear
at trial. In July 2013, a jury returned special verdicts in favor of
Marty and Marie on their claim for strict liability, and awarded
them damages totaling $1,525,000. That sum comprised
$400,000 in economic damages to Marty and Marie, $375,000 in
noneconomic damages to Marty, and $750,000 in noneconomic
damages to Marie. The jury also allocated UCC a five percent
share of comparative fault, and Elementis a three percent share
of comparative fault.
In August 2013, Marty and Marie sought determinations of
UCC’s and Elementis’s liability for damages. The trial court
(Judge John J. Kralik) found that 20 percent of the settlement
funds were reasonably allocated to future wrongful death claims.
In view of that allocation, the court found that the settlement
credits to which UCC and Elementis were entitled reduced their
liability for economic damages “to zero” (§ 877). The court also
ruled that UCC’s and Elementis’s shares of comparative fault --

3
but not the existence of the settlement funds -- determined their
liability for noneconomic damages (Civ. Code, § 1431.2).3
In October 2013, the trial court entered a judgment
awarding damages totaling $56,250 against UCC, and damages
totaling $33,750 against Elementis, reflecting its determinations
that they were liable solely for noneconomic damages
proportionate to their respective shares of comparative fault.
Later, in December 2013, the judgment was amended to include
an award of costs. UCC and Elementis noticed an appeal from
the judgment.

B. Proceedings Regarding Respondents’ Complaint
On January 16, 2015, while that appeal was pending,
Marty died. In July 2015, Marie, acting as an individual and as
representative of Marty’s estate, together with respondents, filed
a first amended complaint for wrongful death (FAC) against UCC
and Elementis, asserting claims for negligence, breach of
warranties, and strict liability.
After Elementis answered the FAC, the parties stipulated
to a stay of proceedings regarding the FAC until remittitur issued
in the appeal. Later, in an unpublished opinion (Marteney v.
Union Carbide Corporation, et al. (Oct. 10, 2015, B252711), we
affirmed the judgment in favor of Marty and Marie. Our
remittitur issued on December 31, 2015.

3
In actions for personal injury and wrongful death, a
nonsettling defendant is ordinarily liable for an amount of
noneconomic damages proportionate to its share of comparative
fault, without any offset for settlements by other defendants
encompassing noneconomic damages. (See Garcia v. Duro Dyne
Corp. (2007) 156 Cal.App.4th 92, 102.)

4
 Prior to trial on the FAC, Marie voluntarily dismissed her
wrongful death claims, and respondents settled their claims
against UCC for $75,000. In early September 2016, following a
trial, a jury found that respondents suffered economic damages
totaling $195,000 and noneconomic damages totaling $163,000.
The jury allocated the damages as follows: to Bruce Marteney,
$87,000 in economic damages and $44,000 in noneconomic
damages; to Steve Marteney, $54,000 in economic damages and
$44,000 in noneconomic damages; and to Chrystal Dahlstein,
$54,000 in economic damages and $75,000 in noneconomic
damages.
On September 27, 2016, the trial court (Judge Charles F.
Palmer) entered judgment in favor of respondents on their
wrongful death claims against Elementis. The judgment awarded
economic damages totaling $195,000, subject to further
adjustment due to prior settlements. The judgment also awarded
noneconomic damages totaling $4,890, predicated on the jury’s
findings and the prior allocation of a three percent share of
comparative fault to Elementis. The noneconomic damages were
apportioned as follows: to Bruce Marteney, $1,320; to Steve
Marteney, $1,320; and to Chrystal Dahlstein, $2,250.
In October 2016, Elementis requested a determination of
settlement credits (§ 877). After concluding that Elementis was
entitled to a credit based solely on respondents’ settlement with
UCC -- and not on Marty’s and Marie’s settlements -- the trial
court found that Elementis was liable for economic damages
totaling $154,149.25. In February 2017, the court amended the
judgment to reflect that finding.
In March 2017, Elementis filed a motion to vacate the
judgment in favor of respondents as void, contending the appeal
from the 2013 judgment in favor of Marty and Marie foreclosed

5
all proceedings relating to the FAC. On March 29, 2017, the trial
court denied Elementis’s motion. This appeal followed.

DISCUSSION
Elementis contends (1) that the 2017 judgment in favor of
respondents is void, and (2) that the trial court erred in
determining the settlement credits to which Elementis was
entitled. For the reasons discussed below, we reject those
contentions.

A. 2017 Judgment
We begin with Elementis’s challenge to the 2017 judgment,
which Elementis contends is void for “lack of jurisdiction.”
1. Standard of Review
In order to demonstrate that a judgment is void, a party
may file a motion to vacate the judgment in the pertinent action
or an independent action in equity. (Preston v. Wyoming Pacific
Oil Co. (1961) 197 Cal.App.2d 517, 527.) Here, Elementis chose
to attack the 2017 judgment by means of a motion under section
473, subdivision (d), which provides in pertinent part: “The
court . . . may, on motion of either party after notice to the other
party, set aside any void judgment or order.”
Under subdivision (d) of section 473, a party may challenge
judgments that are “‘“absolutely void.”’” (Tearlach Resources
Limited v. Western States Internat., Inc. (2013) 219 Cal.App.4th
773, 779 (Tearlach), quoting Andrews v. Superior Court (1946) 29
Cal.2d 208, 214-215 (Andrews).) That defect occurs when the
trial court rendering the judgment lacked jurisdiction in the
“fundamental sense,” that is, lacked authority over the subject
matter or parties. (OC Interior Services, LLC v. Nationstar
Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1330.) Such a

6
judgment “‘“is, in legal effect, no judgment. . . . Being worthless
in itself, all proceedings founded upon it are equally worthless.
[Citation.]”’ [Citation.]” (Rochin v. Pat Johnson Manufacturing
Co. (1998) 67 Cal.App.4th 1228, 1240, quoting Bennett v. Wilson
(1898) 122 Cal. 509, 513-514.) Because an absolutely void
judgment is a nullity, it “‘may be attacked
anywhere . . . whenever it presents itself.’” (Andrews, supra, 29
Cal.2d at p. 214, quoting Estate of Pusey (1919) 180 Cal. 368,
374.)
Subdivision (d) of section 473 also permits challenges to
judgments that are voidable, rather than absolutely void.
(Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 752; see Sole
Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 210.) That
defect arises when the trial court, in rendering the judgment,
possessed fundamental jurisdiction over the subject matter and
the parties, but acted “in excess of its jurisdiction.” (People v.
American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 661
(American Contractors).) Generally, a court exceeds its
jurisdiction only by contravening certain defined limitations on
the exercise of its powers (People v. National Automobile &
Casualty Ins. Co. (2000) 82 Cal.App.4th 120, 125); ordinary
mistakes of law or procedure do not constitute acts in excess of
jurisdiction (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction,
§ 287, p. 894).
An error in excess of jurisdiction does not render a
judgment a nullity; rather, the judgment “is valid until it is set
aside.” (American Contractors, supra, 33 Cal.4th at p. 661.)
Ordinarily, acts in excess of jurisdiction are subject to harmless
error analysis, that is, they support a reversal of the judgment
only upon a showing of prejudice. (See People v. Williams (2006)
40 Cal.4th 287, 301.) Furthermore, challenges to a judgment

7
based on the defect may be barred under principles of estoppel,
forfeiture, and waiver. (In re Griffin (1967) 67 Cal.2d 343, 347
(Griffin); People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6.)
Before the trial court and on appeal, Elementis has offered
two distinct arguments in support of its contention that the 2017
judgment is void for want of jurisdiction. Elementis maintains (1)
that the appeal from the 2013 judgment in favor of Marty and
Marie removed the court’s jurisdiction to permit the filing of the
FAC, and (2) that the underlying action “was dead” after we
affirmed the 2013 judgment and Elementis paid the damages
owed to Marty and Marie.
As the facts material to Elementis’s contentions are
undisputed, the character of the purported defect determines the
standard of review applicable to the ruling on the section 473
motion. To the extent Elementis asserts that the 2017 judgment
is absolutely void for want of subject matter jurisdiction, our
review is de novo. (Tearlach, supra, 219 Cal.App.4th at p. 780.)
To the extent Elementis may have identified an act potentially in
excess of jurisdiction, we review the ruling for an abuse of
discretion. (See Talley v. Valuation Counselor Group, Inc. (2010)
191 Cal.App.4th 132, 146.)
2. Filing of the FAC
Elementis contends the automatic stay triggered by the
appeal from the 2013 judgment removed the trial court’s subject
matter jurisdiction to accept the filing of the FAC. As explained
below, we disagree.
a. Governing Principles
Under section 916, subdivision (a), “the perfecting of an
appeal stays proceedings in the trial court upon the judgment or
order appealed from or upon the matters embraced therein or
affected thereby, including enforcement of the judgment or order,”

8
unless the matter falls within enumerated exceptions. When
triggered, the automatic stay bars all proceedings that “directly
or indirectly seek to ‘enforce, vacate or modify [the] appealed
judgment or order’” or “substantially interfere with the appellate
court’s ability to conduct the appeal.” (Varian Medical Systems,
Inc. v. Defino (2005) 35 Cal.4th 180, 189-190 (Varian), quoting
Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629 (Elsea).) The
function of the automatic stay rule is “‘to protect the appellate
court’s jurisdiction by preserving the status quo until the appeal
is decided.’” (Varian, supra, at p. 189, quoting Elsea, supra, at
p. 629.)
The principal effect of the automatic stay is to remove the
trial court’s subject matter jurisdiction relating to proceedings
within the scope of the appeal. As our Supreme Court has
explained, the stay divests the trial court of subject matter
jurisdiction “over any matter embraced in or affected by the
appeal during the pendency of that appeal.” (Varian, supra, 35
Cal.4th at pp. 196-197.) Thus, section 916 renders any
subsequent trial court proceedings on such matters “void -- and
not merely voidable.” (Id. at p. 198.) However, the automatic
stay rule does not bar collateral proceedings that do not affect the
judgment on appeal. (Id. at p. 191.)
The crux of Elementis’s contention is that due to the
automatic stay triggered by the appeal from the 2013 judgment,
the filing of the FAC was a jurisdictional error rendering the 2017
judgment void. Because the FAC contained wrongful death
claims, Elementis’s contention implicates the principles
governing those claims. Generally, wrongful death claims are
legally distinct from claims for personal injury and loss of
consortium. (Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th
847, 862 (Wilson).) “A cause of action for wrongful death is a

9
statutory claim (§§ 377.60-377.62) that compensates specified
heirs of the decedent for losses suffered as a result of a decedent’s
death.” (San Diego Gas & Electric Co. v. Superior Court (2007)
146 Cal.App.4th 1545, 1550-1551 (San Diego Gas).) Although
each heir has a “personal and separate” claim, the wrongful death
statutes ordinarily require joint litigation of the heirs’ claims in
order to prevent a series of suits against the tortfeasor. (Cross v.
Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 692, 694 (Cross);
San Diego Gas, supra, at p. 1551.) However, that requirement
does not deprive a court of subject matter jurisdiction to try a
wrongful death action when an heir fails to participate in the
action. (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808;
see Cross, supra, at p. 692.)
Elementis’s contention also implicates the trial court’s
authority to permit amendments to the original complaint, as the
FAC introduced new claims and parties into the action.
Generally, “the trial court has wide discretion in allowing the
amendment of any pleading [citations].” (Bedolla v. Logan &
Frazer (1975) 52 Cal.App.3d 118, 135-136; § 473, subd. (a)(1).)
Furthermore, in suitable circumstances, the court may permit
new parties to join or intervene in an action as plaintiffs (§§ 378,
387). Nonetheless, when an amended complaint seeks to add new
plaintiffs and claims, the court’s discretion is tightly confined by
considerations of due process -- that is, potential unfairness to the
defendant -- and the running of the applicable statute of
limitations. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, §§
1217, 1234-1235, pp. 652, 671-672.)
b. Analysis
We conclude that notwithstanding Elementis’s appeal from
the 2013 judgment, the filing of the FAC reflected no
jurisdictional error sufficient to render the 2017 judgment void.

10
Our focus is on respondents’ wrongful death claims in the FAC, as
any error capable of invalidating the 2017 judgment -- if it exists -
- must relate to those claims. That is because the 2017 judgment
encompassed only respondents’ claims, which -- as noted above
(see pt.A.2.a., ante) -- were separate from Marie’s wrongful death
claim, which she dismissed prior to trial on the FAC.
In rejecting Elementis’s challenge to the 2017 judgment,
the trial court concluded that the parties’ stipulation staying
proceedings on the FAC acted to prevent any material
jurisdictional error. The court stated: “The only actions taken by
the superior court[] between the filing of the notice of appeal and
the issuance of the court of appeal[’s] remittitur were . . . to
accept the [FAC] for filing[] and . . . to accept for filing the
stipulation staying the [FAC] until the remittitur was issued
. . . . Neither of these actions, in any way, had any impact on the
effectiveness of the appeal. . . . [I]t appears to the court that the
acceptance of the [FAC] . . . [and] the sub-proceedings of the court
were in [no] way inconsistent with the . . . remittitur.” We
discern no error in those determinations.
In our view, the appeal from the 2013 judgment did not
remove the trial court’s subject matter jurisdiction over the FAC,
insofar as it asserted respondents’ wrongful death claims. By
accepting the FAC for filing, the trial court effectively permitted
respondents -- who were not parties to the original action -- to
intervene in order to assert their wrongful death claims (see
Houze v. Kovacevich (1941) 44 Cal.App.2d 936, 937 [affirming
judgment in wrongful death action in favor of plaintiff by
intervention].). After an appeal from a judgment has been
perfected, section 916 does not deprive the trial court of subject
matter jurisdiction to permit a party to intervene in the action,
provided the intervention does not relate to a matter embraced by

11
the judgment. (Mallick v. Superior Court (1979) 89 Cal.App.3d
434, 437-438.) That is the case here: because respondents’ claims
were based on their father Marty’s postjudgment death and were
separate from Marie’s wrongful death claim (Cross, supra, 60
Cal.2d at p. 692), they did not implicate the 2013 judgment in
favor of Marty and Marie in any way. Accordingly, the appeal did
not deprive the trial court of subject matter judgment over
respondents’ claims.
Moreover, even had the trial court exceeded its jurisdiction
in permitting respondents to assert their claims while the appeal
was pending, Elementis failed to preserve any such contention of
error. “‘An appellate court will ordinarily not consider procedural
defects or erroneous rulings, in connection with relief sought or
defenses asserted, where an objection could have been, but was
not, presented to the lower court by some appropriate
method . . . . The circumstances may involve such intentional
acts or acquiescence as to be appropriately classified under the
headings of estoppel or waiver . . . . Often, however, the
explanation is simply that it is unfair to the trial judge and to the
adverse party to take advantage of an error on appeal when it
could easily have been corrected at the trial.’ [Citation.]” (Doers
v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185,
fn. 1, italics omitted.)
Generally, the failure to object in a timely manner to the
assertion of new claims bars contentions of error predicated on
that irregularity. In Groom v. Bangs (1908) 153 Cal. 456, 458
(Groom), a married couple filed a complaint for personal injury,
alleging that the defendant doctor engaged in medical
malpractice regarding the wife. After the wife died, with leave
from the trial court, the husband filed an amended complaint,
asserting a single wrongful death claim as the sole plaintiff.

12
(Ibid.) In successfully demurring to the amended complaint, the
defendant contended only that the wrongful death allegations
were insufficient. (Id. at pp. 457-458.)
Upon determining that the amended complaint stated a
wrongful death claim, our Supreme Court reversed, even though
it recognized that the trial court had erred in permitting the
husband to assert that claim. (Groom, supra, 153 Cal. at pp. 458-
459.) The Supreme Court stated: “[The wrongful death claim] is
a cause of action entirely different from that sued on in the
original complaint. The filing of the amended . . . complaint was,
in effect, a discontinuance of the previous action, and the
beginning of a new action for a new cause. This method of
procedure was irregular, but no objection was made upon that
ground.” (Id. at p. 459.) In view of the absence of a timely
objection, the court ruled that the defendant had failed to
preserve that irregularity as a contention of error. (Ibid.)
In Barnes v. McKendry (1968) 260 Cal.App.2d 671, 672, a
woman filed a complaint for divorce containing a single charge of
mental cruelty. Later, without securing leave from the trial
court, she filed amended complaints asserting new and different
causes of action. (Id. at p. 676.) The husband never objected to
the amended complaints throughout the proceedings, which
resulted in a judgment unfavorable to him. (Id. at p. 676.) In
affirming the judgment, the appellate court found that the
husband had failed to preserve any contentions of error based on
the wife’s assertion of new claims without leave to amend. (Id. at
p. 676.)
We reach a similar conclusion here. “When . . . the court
has jurisdiction of the subject, a party who seeks or consents to
action beyond the court’s power as defined by statute or
decisional rule may be estopped to complain of the ensuing action

13
in excess of jurisdiction.” (Griffin, supra, 67 Cal.2d at p. 347.)
Although respondents appear to have filed the FAC without
obtaining leave from the trial court, Elementis answered the
FAC, agreed to the stipulation regarding the FAC, and following
our remittitur, participated without objection in the wrongful
4
death proceedings. Elementis challenged the filing of the FAC
only after the entry of the 2017 judgment, when it asked the trial
court to vacate that judgment as void. Accordingly, Elementis
may not challenge the 2017 judgment on the basis of procedural
irregularities constituting errors in excess of jurisdiction.
(Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d
158, 166 [“[A]n appellant may waive his right to attack error by
expressly or impliedly agreeing at trial to the ruling or procedure
objected to on appeal”]; see Mesecher v. County of San Diego
(1992) 9 Cal.App.4th 1677, 1687 [party’s belated postverdict
objection failed to preserve contention of error regarding jury
instructions it affirmatively approved].)
In an effort to show that the automatic stay barred the
filing of the FAC, Elementis contends that because the FAC
“superseded and nullified” the original complaint, it necessarily
implicated matters embraced by the 2013 judgment.5 We
disagree. As explained above, any jurisdictional error capable of

4
We note that the record provided by Elementis contains no
order permitting the filing of the FAC, and that the parties
dispute whether there was such an order.
Generally, “‘an amendatory pleading supersedes the
5

original one, which ceases to perform any function as a pleading.
[Citations.]’ [Citation.] ‘Such amended pleading supplants all
prior complaints. . . . [Citations.]’ [Citation.]” (Foreman & Clark
Corp. v. Fallon (1971) 3 Cal.3d 875, 884.)

14
rendering the 2017 judgment void must attach to respondents’
claims in the FAC, as that judgment resolved only respondents’
claims. However, because respondents became parties to the
action after the 2013 judgment, the FAC effectively constituted
their original complaint, as it marked “the beginning of a new
action for a new cause” by them. (Groom, supra, 153 Cal. at
p. 459.) The FAC thus did not implicate the 2013 judgment,
insofar as the FAC contained respondents’ claims. In sum,
Elementis has failed to show any basis for invalidating the 2017
judgment due to the filing of the FAC.
3. Finality of 2013 Judgment
Relying on the principles governing final judgments,
Elementis contends our affirmance of the 2013 judgment limited
the trial court’s subject matter jurisdiction to the enforcement of
the 2013 judgment. Elementis argues that after our remittitur
issued, the 2013 judgment became the final judgment in the
action, and no proceedings were permitted on the FAC. We reject
that contention.
Generally, the term “‘final,’” as applied to judgments, has
several meanings. (Sullivan v. Delta Air Lines, Inc. (1997) 15
Cal.4th 288, 303-304.) Under the “‘one final judgment’” rule, an
appeal can be taken only from a judgment that completes the
disposition of all the claims between the pertinent parties.
(Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743
(Morehart).)6 Furthermore, once such a judgment is affirmed on

6
The “one final judgment” rule is codified in section 904.1,
subdivision (a). (Morehart, supra, 7 Cal.4th at p. 741.) “Subject
to exceptions not applicable here, that subdivision authorizes an
appeal ‘[f]rom a judgment, except . . . an interlocutory judgment,’
i.e., from a judgment that is not intermediate or nonfinal but is

15
appeal, it becomes final in another manner. “‘The order of the
appellate court as stated in the remittitur, “is decisive of the
character of the judgment to which the appellant is entitled. The
lower court cannot reopen the case on the facts, allow the filing of
amended or supplemental pleadings, nor retry the case, and if it
should do so, the judgment rendered thereon would be void.”’”
(Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701,
quoting Hampton v. Superior Court (1952) 38 Cal.2d 652, 656.)
Nothing in these principles foreclosed the proceedings on
respondents’ wrongful death claims after our remittitur issued in
the appeal from the 2013 judgment. An appeal of a judgment
final for purposes of the one “final judgment” rule does not
remove the trial court’s jurisdiction to conduct litigation of claims
outside the scope of that judgment, that is, involving other
parties. (Rocca v. Steinmetz (1922) 189 Cal. 426, 428.) That is
because “[i]t is well settled that where parties have distinct
interests, there can be a separate, final, and appealable judgment
for each.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 109,
p. 174.) As explained above (see pt. A.2.b, ante), respondents’
wrongful death claims were separate and distinct from those
resolved by the 2013 judgment in favor of Marty and Marie.
Thus, neither the appeal from the 2013 judgment nor our

the one final judgment. [Citation.] Judgments that leave nothing
to be decided between one or more parties and their adversaries,
or that can be amended to encompass all controverted issues,
have the finality required by section 904.1, subdivision (a). A
judgment that disposes of fewer than all of the causes of action
framed by the pleadings, however, is necessarily ‘interlocutory’
[citation], subd. (a)), and not yet final, as to any parties between
whom another cause of action remains pending.” (Ibid.)

16
remittitur in that appeal deprived the trial court of subject
matter jurisdiction over respondents’ wrongful death claims.
Elementis contends the trial court necessarily lacked
jurisdiction over respondents’ claims because they were first
alleged following the 2013 judgment, arguing that “[w]hat
happened here was not the continuation of a lawsuit after one of
several parties has obtained [a] judgment.” However, because the
assertion of respondents’ claims -- if improper -- was nothing
more than an error in excess of jurisdiction (see pt. A.2.b, ante),
the proceedings on those claims also amounted only to such an
error. (See Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335, 1339-
1340 [consolidation of wife’s tort action against husband with
their divorce action after an appealable judgment was entered in
the divorce action was an error in excess of jurisdiction].) As
explained above, Elementis has failed to preserve contentions
based on procedural irregularities of that type. In short, the trial
court did not err in denying Elementis’s section 473 motion to
vacate the 2017 judgment.
B. Section 877 Settlement Credits
Elementis contends the trial court erred in determining the
settlement credits to which it was entitled under section 877. In
assessing Elementis’s liability for respondents’ economic
damages, the court found that Elementis was entitled to a
settlement credit based on respondents’ $75,000 settlement with
UCC, but declined to award any credit based on Marty’s and
Marie’s settlements. Elementis has failed to demonstrate error in
that ruling.
1. Governing Principles
Section 877 specifies circumstances under which an award
of economic damages against a defendant may be offset by a
codefendant’s settlement. (Hackett v. John Crane, Inc. (2002) 98

17
Cal.App.4th 1233, 1239 (Hackett).) Under the statute, a release
or covenant not to sue, when “given in good faith before verdict or
judgment to one or more of a number of tortfeasors claimed to be
liable for the same tort,” has the effect of “reduc[ing] the claims
against the others in the amount stipulated by the release . . . or
the covenant, or in the amount of the consideration paid for it,
7
whichever is the greater.” (§ 877, subd. (a).) Section 877
promotes the recovery of damages, the settlement of litigation,
and the equitable apportionment of liability among tortfeasors,
while limiting the double recovery of damages. (Dell’Oca v. Bank
of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531, 560
(Dell’Oca).)8
As discussed further below, Elementis contends that under
section 877, the agreements “given” by Marty and Marie to the

7
Under section 877, a defendant’s good faith settlement has
other effects, including “cut[ting] off the right of other defendants
to seek contribution or comparative indemnity from the settling
defendant.” (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d
858, 873; § 877, subd. (b).)
The statute has been interpreted broadly to achieve those
8

goals. (Dell’Oca, supra, 159 Cal.App.4th at p. 560.) Under
section 877, to be a “tortfeasor[],” a party must be potentially
liable in tort. (Tiffin Motorhomes, Inc. v. Superior Court (2011)
202 Cal.App.4th 24, 31.) However, it need not be shown that the
party did, in fact, commit a tort. (Dell’Oca, supra, at pp. 560-561).
Furthermore, whether parties constitute “joint” tortfeasors under
section 877 “depends upon whether they caused ‘one indivisible
injury’ or ‘the same wrong.’ [Citations.] The ‘same wrong’ may
emanate from two successive independent torts and does not
require unity of purpose, action, or intent by the two or more
tortfeasors. [Citations.] Also, the plaintiff need not allege the

18
settling defendants prior to the 2013 judgment operated to
“reduce” respondents’ claims against Elementis, even though
respondents were not signatories to the agreements. Generally,
courts have construed section 877 to diminish a nonsettling
defendant’s liability to the plaintiff executing the settlement.
(Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012,
1018; Bobrow/Thomas & Associates v. Superior Court (1996) 50
Cal.App.4th 1654, 1660; Southern Cal. Gas Co. v. Superior Court
(1986) 187 Cal.App.3d 1030, 1037.) As our Supreme Court has
explained, under the statute, “when one of a number of tort
defendants enters into a settlement agreement with a plaintiff,
the nonsettling defendants’ liability to the plaintiff is reduced by
the amount of the settlement.” (Bay Development, Ltd. v.
Superior Court, supra, at p. 1018, italics added.)
Elementis’s contention thus implicates the principles by
which persons may be bound by, or subject to, a settlement
agreement they did not execute. Generally, the settlement of
claims “by one party plaintiff . . . does not operate to bar the
actions of other plaintiffs.” (Estate of Kuebler v. Superior Court
(1978) 81 Cal.App.3d 500, 504.) Nonetheless, nonsignatories to a
settlement agreement may be subject to it under special
circumstances, for example, when they participate in the
negotiation of the agreement while recognizing that it affects
their interests (Phelps v. Kozakar (1983) 146 Cal.App.3d 1078,
1083-1084), or when the agreement is negotiated by parties
purporting to act on their behalf, and they accept the benefits of
the agreement (see Alvarado Community Hospital v. Superior
Court (1985) 173 Cal.App.3d 476, 480-484).

same tort against the tortfeasors . . . . [Citation.]” (In re JTS
Corp. (9th Cir. 2010) 617 F.3d 1102, 1116-1117.)

19
 2. Underlying Proceedings
In July 2013, following the trial on the claims in the
original complaint, the jury awarded Marty and Marie $400,000
in economic damages. Later, Marty and Marie sought
determinations of the settlement credits to be applied to offset the
jury’s award of economic damages against UCC and Elementis.
Marty and Marie contended that 50 percent of the funds from
their pretrial settlements were properly allocated to claims not
litigated at trial -- namely, prospective wrongful death claims
based on Marty’s death -- and that any credits due UCC and
Elementis should be appropriately reduced to reflect that
allocation. They maintained that UCC and Elementis were
jointly and severally liable for $86,551.50 in economic damages,
after the jury’s award was offset by credits based on an allocation
of 50 percent of the settlement funds to wrongful death claims.
UCC and Elementis opposed the determinations requested
by Marty and Marie. Regarding economic damages, they
contended that because Marty and Marie failed to show that the
settlement agreements allocated any funds to prospective
wrongful death claims, the appropriate settlement credits were
sufficiently large to “reduce the economic damages to zero.”
The trial court (Judge Kralik) found that only 20 percent of
the settlement funds were reasonably allocated to future
wrongful death claims. In view of that conclusion, the court
further found that UCC and Elementis had no liability for
economic damages, as the settlement credit offsets to which they
were entitled exceeded the jury’s $400,000 award for economic
damages. The 2013 judgment reflected that determination.
In September 2016, following the jury trial on respondents’
wrongful death claims, the trial court (Judge Palmer) entered
judgment in favor of respondents and against Elementis. The

20
judgment awarded economic damages totaling $195,000, in
accordance with the jury’s findings, with the proviso that “offsets
for pre-verdict settlements” would be determined in future
proceedings.
In October 2016, Elementis requested settlement credits
based on Marty’s and Marie’s settlements and respondents’
settlement with UCC. Elementis argued that respondents were
bound by the prior finding (by Judge Kralik) that 20 percent of
the funds from Marty’s and Marie’s settlements were properly
allocated to then-future wrongful death claims. In view of that
contention, Elementis asserted that respondents’ net recovery for
economic damages was “zero dollars,” as the settlement credit it
sought exceeded the jury’s total award for economic damages.
Respondents contended any settlement credit must be
based solely on their $75,000 settlement with UCC, arguing that
assigning credits to Elementis based on Marty and Marie’s
settlements “would be contrary to . . . section 877.” Respondents
further contended the prior finding regarding Marty’s and Marie’s
settlements did not bind them because they “were never parties
to [those settlements] . . . , never granted permission to anyone to
settle their claims, and . . . never agreed to settle/waive their
claims against any defendant other than [UCC].” Respondents
thus maintained that Elementis was entitled to a credit
amounting to $40,851.75, based only on the UCC settlement.
The trial court agreed with respondents, concluding that
“there [was] no basis for subjecting the verdict in [respondents’]
wrongful death trial to offset by the settlements obtained by
Marty and Marie.” The court found that respondents had not
participated in the litigation of Marty’s and Marie’s claims or in
the negotiation of their settlement agreements, and that Marty
and Marie agreed “to indemnify the settling defendants” in the

21
event Marty’s heirs later pursued a wrongful death case against
them. The court determined Elementis’s aggregate liability for
economic damages to be $154,149.25 -- reflecting a settlement
credit of $40,851.75 -- and entered an amended judgment in
accordance with that finding.
3. Analysis
As explained below, we discern no error in the trial court’s
determinations. “We generally review a ruling granting or
denying a section 877 settlement credit under the deferential
abuse of discretion standard. [Citation.] To the extent that we
must decide whether the trial court’s ruling was consistent with
statutory requirements, we apply the independent standard of
review. [Citation.]” (Wade v. Schrader (2008) 168 Cal.App.4th
1039, 1044.)
Although no decision has directly examined when claims
asserted by nonsignatories to a settlement agreement are
properly subject to settlement credits under section 877, we find
guidance on Elementis’s contention from Wilson, supra, 81
Cal.App.4th 847 and Hackett, supra, 98 Cal.App.4th 1233. In
Wilson, a husband and wife asserted claims for personal injury
and loss of consortium against numerous defendants, alleging
that the asbestos products they made or marketed caused the
husband’s mesothelioma. (Wilson, supra, at pp. 850-851.) Prior
to trial, the plaintiffs entered into settlements with all but one
defendant. The agreements encompassed funds for potential
wrongful death claims by the husband’s heirs, and contained
undertakings by the plaintiffs to hold the settling defendants
harmless from any wrongful death action against them. (Id. at p.
859.) After a jury found the nonsettling defendant liable for
economic damages, the trial court excluded all settlement funds
allocated to potential wrongful death claims in calculating the

22
settlement credits to which the nonsettling defendant was
entitled. (Id. at pp. 851, 860.)
The appellate court affirmed the exclusion of the settlement
funds from the calculation because the plaintiffs had asserted no
wrongful death claim, reasoning that “the settlement of [a] claim
may serve as a credit only against a judgment on the same claim.”
(Wilson, supra, 81 Cal.App.4th at p. 862.) In so holding, the court
observed that the settlement agreements had not, in fact, settled
the heirs’ wrongful death claims, but required only that the
plaintiffs hold the settling defendants harmless in the event of
such claims. (Ibid.) The court remarked: “This raises the
possibility that the heirs might yet bring their independent
claims against [the nonsettling] defendant . . . and might then
recover damages some portion of which had effectively already
been paid to [the] plaintiffs by other defendants. If the heirs were
shown to have actually received the sums earlier paid in
settlement, then of course those sums would be available for
treatment as a settlement credit. If they had not received the
sums, then the decedent might be found -- or deemed -- to have
received them as an agent of the heirs, such that the sums so
received would still be available as credits against settlement.
Alternatively, the defendant might be allowed an equitable claim
back against the decedent’s estate for sums which should have
been applied to offset the heirs’ eventual claims. We need not
determine how such a hypothetical situation would in fact be best
resolved.” (Id. at pp. 862-863, fn. omitted.)
Hackett involved similar plaintiffs and similar claims
against multiple defendants. (Hackett, supra, 98 Cal.App.4th at
pp. 1236-1237.) Prior to trial, the plaintiffs settled with many of
the defendants. (Id. at p. 1237.) Included in the agreements were
express releases of future wrongful death claims by heirs, as well

23
as undertakings to hold the defendants harmless in the event of
such claims. (Ibid.) After a jury awarded noneconomic damages
against a nonsettling defendant, the trial court found that 34
percent of the settlement funds were allocated to future wrongful
death actions, and determined the defendant’s settlement credit
in light of that finding. (Id. at pp. 1238, 1241.)
On appeal, the defendant contended an excessive amount of
the settlement funds had been allocated to future wrongful death
actions, arguing that the trial court failed to consider that the
plaintiffs’ sons were not signatories to the settlement agreements,
and thus were free to assert such actions. (Hackett, supra, 98
Cal.App.4th at p. 1241.) Pointing to Wilson, the appellate court
rejected the contention, concluding that such future wrongful
death actions were reasonably viewed as only a “theoretical[]
possibil[ity]” in view of the “hold harmless” provisions of the
settlement agreements, which discouraged those actions against
the settling defendants.9 (Hackett, supra, at p. 1241.)

9
The appellate court stated: “[The plaintiff] entered into
hold harmless agreements with the settling defendants on behalf
of himself and his estate. Although it is theoretically possible
that the sons could sue and that no settlement proceeds would be
left to fulfill the hold harmless agreements and that the
defendants would not prevail under any one of several possible
grounds for claiming an offset, it is plain that the settling
defendants did not believe they were paying $4.5 million for an
empty promise. The agreements make it clear that the settling
defendants believed and expected there would be no future claims
by the heirs. [The nonsettling defendant here] advanced a
similar contention in the Wilson case.” (Hackett, supra, 98
Cal.App.4th at p. 1241.)

24
 Although Wilson and Hackett examine the section 877
credit due a nonsettling defendant in an action for personal injury
and loss of consortium, their discussions are instructive regarding
the distinct issue presented here, namely, the section 877 credit
due the nonsettling defendant in a subsequent wrongful death
action by the original plaintiffs’ heirs. Viewed together, Wilson
and Hackett establish that when the heirs are not signatories to a
settlement executed by the original plaintiffs, the settling
defendant’s key safeguard against a subsequent wrongful death
action by the heirs is a “hold harmless” provision in the
settlement binding on the original plaintiffs, unless the
settlement is also binding on the heirs. (Wilson, supra, 81
Cal.App.4th at pp. 862-863; Hackett, supra, 98 Cal.App.4th at p.
1241.) The latter may occur where the plaintiffs, in negotiating
the settlement, act as the heirs’ agents, or the heirs actually
receive the settlement funds allocated to wrongful death claims.
(Wilson, supra, at pp. 862-863.) When those situations obtain, a
nonsettling defendant is potentially entitled to a section 877
credit in the heirs’ wrongful death action because they are bound
by the settlement. (Ibid.)
Here, Elementis failed to show that respondents were
subject to Marty’s and Marie’s settlements. Absent special
circumstances, “‘a party has the burden of proof as to each fact
the existence or nonexistence of which is essential to the claim for
relief or defense that he is asserting.’ [Citations.]”
(Sander/Moses Productions, Inc. v. NBC Studios, Inc. (2006) 142
Cal.App.4th 1086, 1095.) Because Elementis sought settlement
credits, the burden of proving that the settlements bound
respondents is reasonably allocated to Elementis.
In opposing Elementis’s request for settlement credits,
respondents submitted declarations stating (1) that they were not

25
parties to the litigation of Marty’s and Marie’s claims, (2) that
they had no proprietary interest in those claims, (3) that they did
not participate in the negotiation of Marty’s and Marie’s
settlements, (4) that they lacked prior knowledge of those
settlements, and (5) that they never authorized Marty and Marie
to settle their wrongful death claims. Elementis offered no
evidence contradicting those declarations, and argued only that
respondents did not state that they received no funds from the
settlements. The trial court thus reasonably concluded that
Elementis had not shown that the settlements bound
respondents.10
On appeal, Elementis’s principal contentions focus on
whether respondents may recover from Marie’s settlement funds
allocated to future wrongful death actions. Elementis suggests
several theories potentially supporting such a recovery, including
that Marty and Marie were acting as respondents’ agents or
trustees when they negotiated the settlements, as well as that a
constructive trust may be imposed on the settlement funds for the
benefit of respondents. In connection with these theories,
Elementis places special emphasis on the finding (by Judge

Elementis suggests that determination was erroneous
10

because respondents did not assert wrongful death claims against
any of the settling defendants. However, as plaintiffs asserting
wrongful death claims need not join all potential defendants in a
single action (Helling v. Lew (1972) 28 Cal.App.3d 434, 438), the
trial court was not compelled to conclude that the settlements
bound respondents based on their failure to sue the settling
defendants.

26
Kralik) underlying the 2013 judgment, namely, that 20 percent of
the settlement funds were allocated to wrongful death claims.11
It is unnecessary to examine whether there is a viable
theory under which respondents may recover settlement funds
from Marie, as we reject the central premise underlying
Elementis’s contentions. The premise is that such a theory, if it
exists, entitles Elementis to a section 877 credit based on the
settlement funds allocated to wrongful death claims. Elementis
asserts: “Respondents are of course free to let their mother keep
[that] money, but it belongs to them and Elementis is entitled to
the settlement credit.”
The premise fails because the propriety of a section 877
credit hinges on whether Marty’s and Marie’s settlements
foreclosed potential wrongful death claims by respondents against
the settling defendants, not on whether respondents may recover
a share of the settlement funds from Marie. As explained above,
as a nonsettling defendant, Elementis may seek section 877
credits in respondents’ wrongful death action based on Marty’s
and Marie’s settlements in the original action only if those
settlements bind respondents, that is, preclude them from
asserting wrongful death claims against the settling defendants.
We therefore limit our inquiry to whether Elementis has
identified a basis for regarding the settlements as binding upon
respondents.
Elementis suggests that Marty and Marie, in negotiating
the settlements, acted as respondents’ agents because the
settlements secured funds intended to resolve prospective

11
Although Elementis argued below that respondents were
estopped from challenging the finding, Elementis has abandoned
that contention on appeal.

27
wrongful death actions. We disagree. As respondents did not
directly authorize Marty and Marie to resolve their claims,
Elementis must rely on a theory of “ostensible” agency. Under
such a theory, respondents are bound by Marty’s and Marie’s
settlements only if respondents ratified them -- that is, accepted
the settlement funds -- because there is no evidence that
respondents created the appearance that Marty and Marie were
negotiating the settlements on respondents’ behalf.12 The theory
thus fails, as Elementis offered no evidence to the trial court that
respondents obtained settlement funds.
Nonetheless, Elementis suggests that respondents did, in
fact, receive settlement funds, pointing to their trial testimony
that their parents gave them cash “gifts” totaling $114,000
shortly before and after Marty died. However, because Elementis
never directed the trial court’s attention to respondents’ trial
testimony, that contention has not been preserved for appeal.
(Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622,

Ordinarily, a party seeking to assign liability to the
12

principal for the acts of an ostensible agent must establish three
elements: (1) the party held a reasonable belief in the agent’s
authority in dealing with the agent; (2) the principal’s conduct --
active or neglectful -- generated the party’s belief in the agent’s
authority; and (3) the party was not negligent in holding the
belief. (Associated Creditors’ Agency v. Davis (1975) 13 Cal.3d
374, 399.) In lieu of showing element (2), the party may show
that the principal ratified the conduct performed in its name.
“Ratification is the subsequent adoption by one claiming the
benefits of an act, which without authority, another has
voluntarily done while ostensibly acting as the agent of him who
affirms the act and who had the power to confer authority (Civ.
Code, §§ 2310, 2312).” (Reusche v. California Pacific Title Ins. Co.
(1965) 231 Cal.App.2d 731, 737.)

28
631-632.) Furthermore, we would reject it were we to consider it,
as ratification through the acceptance of benefits requires
knowledge of the relevant circumstances (Johnson v. California
Interurban Motor Transp. Assn. (1938) 24 Cal.App.2d 322, 338).
Nothing in respondents’ trial testimony implies that the gifts
reflected settlement funds or that respondents had any
knowledge of the source of the gifts. In sum, the trial court did
not err in denying Elementis a section 877 credit based on
Marty’s and Marie’s settlements.

DISPOSITION
The judgment and orders of the court are affirmed.
Respondents are awarded their costs on appeal.

MANELLA, P.J.

We concur:

WILLHITE, J.

COLLINS, J.

29
Filed 11/1/18
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

BRUCE MARTENEY et al., B283411

Plaintiffs and Respondents, (Los Angeles County
Super. Ct. Nos. BC489395,
v. JCCP No. 4674

ELEMENTIS CHEMICALS INC., ORDER CERTIFYING OPINION
FOR PUBLICATION
Defendant and Appellant.

THE COURT*
Good cause appearing, it is ordered that the opinion in the above entitled matter,
filed October 5, 2018, be published in the official reports.

________________________________________________________________________
*MANELLA, P. J. WILLHITE, J. COLLINS, J.