CACI No. 3926. Settlement Deduction

Judicial Council of California Civil Jury Instructions (2023 edition)

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3926.Settlement Deduction
You have heard evidence that [name of plaintiff] has settled
[his/her/nonbinary pronoun/its] claim against [name of defendant]. Any
award of damages to [name of plaintiff] should be made without
considering any amount that [he/she/nonbinary pronoun/it] may have
received under this settlement. I will make the proper deduction from
any award of damages.
New September 2003; Revised December 2010
Sources and Authority
Effect of Good-Faith Settlement. Code of Civil Procedure section 877.
“When the plaintiff stipulates to the fact and amount of settlement before the
court, an approved procedure is for the court to reduce the verdict award by the
amount paid in settlement before entering judgment on the verdict.” (Syverson v.
Heitmann (1985) 171 Cal.App.3d 106, 111 [214 Cal.Rptr. 581], internal citations
Courts have held that it is “proper to exclude evidence of the pretrial settlement
by one joint tortfeasor from the jury’s consideration, leaving it to the court to
apply Code of Civil Procedure section 877 to reduce the verdict.” (Knox v.
County of Los Angeles (1980) 109 Cal.App.3d 825, 834-835 [167 Cal.Rptr.
463], internal citation omitted.)
“[W]here there is an admission ‘that a settlement has been made with one or
more joint tortfeasors in a certain amount there is no factual question to be
resolved by the jury respecting the settlement.’ (Albrecht v. Broughton (1970) 6
Cal.App.3d 173, 177 [85 Cal.Rptr. 659], internal citation omitted.)
“Where the purpose of introducing evidence of a settlement is to reduce any
recovery that might be awarded pro tanto, this result can be achieved by a
simple calculation made by the court after the verdict has been rendered.”
(Shepherd v. Walley (1972) 28 Cal.App.3d 1079, 1082 [105 Cal.Rptr. 387],
footnote omitted.)
“The presentation of evidence concerning the amount or fact of settlement to the
jury . . . is not only confusing, but also can lead to abuse in argument as it did
here.” (Shepherd, supra, 28 Cal.App.3d at p. 1083.)
“[E]vidence of the fact and amount of settlement made by [plaintiff] with
[settling witness] might be admissible under proper limiting instructions for the
purpose of showing bias since he was a witness.” (Shepherd, supra, 28
Cal.App.3d at p. 1082, fn. 2, internal citation omitted.)
“Under Civil Code section 1431.2, a defendant is only responsible for its share
of noneconomic damages as that share has been determined by the jury.
‘Therefore, a nonsettling defendant may not receive any setoff under [Code of
Civil Procedure] section 877 for the portion of a settlement by another defendant
that is attributable to noneconomic damages.’ After application of Civil Code
section 1431.2, ‘. . . there is no amount that represents a common claim for
noneconomic damages against the settling and nonsettling defendants’ and thus
Code of Civil Procedure section 877 has no applicability to noneconomic
damages.” (Ehret v. Congoleum Corp. (1999) 73 Cal.App.4th 1308, 1319 [87
Cal.Rptr.2d 363], internal citations omitted.)
“[A]n undifferentiated settlement must be apportioned between economic and
noneconomic damages so that the setoff applies only to economic damages.”
(Ehret, supra, 73 Cal.App.4th at p. 1320, internal citation omitted.)
It has been held that, “[i]n the absence of any other allocation . . . the
percentage of economic damages reflected in the jury verdict [should] be applied
to determine the percentage of the settlements to be offset.” (Ehret, supra, 73
Cal.App.4th at p. 1320, internal citation omitted.)
“Where there is a complete dismissal of a defendant, and a plaintiff seeks an
allocation of the settlement with that defendant for purposes of limiting the
setoff against another defendant’s liability, the burden is on the plaintiff to
establish facts to justify the allocation.” (Ehret, supra, 73 Cal.App.4th at p.
1322, internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 204, 207
California Tort Damages (Cont.Ed.Bar) Restrictions on Recovery, § 15.12
4 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation,
§§ 74.20-74.28 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.45
(Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and Contribution,
§ 300.73 (Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution,
§ 115.150 et seq. (Matthew Bender)

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