Baker v. Wu

Filed 10/29/09 Baker v. Wu CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles W. Stoll, Judge. Affirmed.

Sinclitico & Burns, Dennis J. Sinclitico and Hugh R. Burns; David J. Orzeran for Defendant and Appellant.

Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, Roger L. Gordon, Vincent Vallin Bennett, and Noah Green for Plaintiff and Respondent.

Defendant and appellant Ronald S. Wu, M.D. (defendant) appeals from a judgment confirming an arbitration award in favor of plaintiff and respondent Cindy Baker (plaintiff). Defendant contends the trial court erred by entering judgment in this medical malpractice action without providing for a periodic payment schedule pursuant to Code of Civil Procedure section 667.7^[1]and by awarding plaintiff her costs pursuant to section 998 and prejudgment interest pursuant to Civil Code section 3291. We affirm the judgment and the award of costs and prejudgment interest.

BACKGROUND

Plaintiff filed a medical malpractice action against defendant on August 5, 2004. In his answer to plaintiffs complaint, defendant asserted as an affirmative defense the right to elect to have future damages paid in periodic payments. Defendant also asserted the right to periodic payment of future damages in a motion in limine filed in the trial court in November or December 2005.

On November 22, 2005, plaintiff served on defendant by mail a statutory offer to compromise pursuant to section 998 for the sum of $475,000. Plaintiffs offer stated in part: If you accept this offer, please file the offer and notice of acceptance in the above-entitled action prior to trial or within 30 thirty days after the offer is made, whichever occurs first. . . . [] . . .This offer is deemed withdrawn if not accepted within thirty (30) days from the date it is made.

On February 21, 2006, the parties stipulated in open court to submit the matter to binding arbitration. The parties agreed to a three-person arbitration panel, consisting of two party arbitrators and one neutral arbitrator. The parties further agreed to follow and be bound by the Code of Civil Procedure and to share the costs of the arbitration. After accepting the parties stipulation to arbitrate, the trial court dismissed the action without prejudice, but retained jurisdiction to enforce the arbitration award.

The arbitration took place from January 7 to January 11, 2008. The parties presented documentary evidence as well as percipient and expert witness testimony. On February 26, 2008, the parties were served with a written arbitration award by the neutral arbitrator, retired Superior Court Judge Alan Haber, and signed by the arbitrator selected by plaintiff. In the arbitration award, Judge Haber found that defendant had acted negligently and breached the applicable standard of care while treating plaintiff and that defendants breach of the standard of care was a substantial factor in causing plaintiffs injuries. Judge Haber awarded plaintiff $700,000 in damages, consisting of $450,000 in past and future economic loss and $250,000 of noneconomic loss.

On March 12, 2008, plaintiff filed a petition to confirm the arbitration award and for entry of judgment. Plaintiff also filed a memorandum of costs seeking $280,154.65 in costs, including expert witness fees, pursuant to section 998 and prejudgment interest pursuant to Civil Code section 3291.

Defendant filed an opposition to the petition to confirm the arbitration award and a motion to strike or tax costs. In both the opposition and the motion to strike costs, defendant argued that an award of costs and prejudgment interest should not be included in the judgment because only the arbitrator had jurisdiction to award costs and interest, and the arbitration award included no award of such items. Defendant further argued that certain specific items of costs were excessive.

On April 14, 2008, defendant sent a letter to the neutral arbitrator requesting a post-arbitration award hearing to supplement the arbitration award to establish a schedule of periodicized payments. On April 15, 2008, defendant filed a motion in the trial court for an order specifying periodic payments. On April 22, 2008, defendant filed an ex parte application requesting continuance of the hearing on the petition to confirm the arbitration award and the motion to tax costs, arguing that the two motions should be heard on the same date as defendants motion for periodic payments. The trial court denied the ex parte application.

On April 29, 2008, the trial court issued an order granting plaintiffs petition to confirm the arbitration award. On May 2, 2008, the trial court heard the motion to strike or tax costs and issued an order awarding plaintiff costs and interest in the amount of $231,401.28, striking $48,753.37 from plaintiffs overall cost bill.

Defendants motion for periodic payments was heard on May 16, 2008, and denied without prejudice. The trial court denied the motion on the ground that the court could not determine from the arbitration award what portion of the $450,000 award for past and future economic damages was for future damages. In its order denying the motion, the trial court stated:

Pursuant to Code of Civil Procedure section 667.7, the Superior Court is required to enter a judgment ordering that future monetary damages be paid in whole or in part by periodic payments upon the request of either party. In subdivision (e) of that same section, future damages are defined to include damage for future medical treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and suffering of the judgment creditor. In this case, there was no trial before the Court, the matter having been arbitrated, and accordingly, the Court has not heard any evidence concerning the damages. The court cannot determine from the arbitrators award what portion of the $450,000.00 award for both past and future economic damages is for future damages and what part is for past damages. The court is not willing to engage in the assumptions urged by plaintiff based upon its economic experts testimony at trial, testimony which did not prevail in its entirety, and instead would require clarification from the arbitrator of his intent. The court also would welcome recommendations of the arbitrator who heard the evidence concerning the appropriate periodization if he in fact intended an award for future damages that exceeded $50,000.00. . . .

On May 29, 2008, defendants counsel sent to plaintiffs counsel a proposed letter to the arbitrators asking them to determine what portion of the $450,000 economic damages award was for future economic damages. Plaintiffs counsel did not respond to the proposed letter.

On June 27, 2008, the trial court entered judgment awarding plaintiff $931,401.28. On July 3, 2008, defendant filed an ex parte application seeking (1) an order permitting the arbitration panel to allocate damages between past and future economic damages and to determine the present value of future economic damages, and (2) staying enforcement of the judgment to allow defendant time to obtain a bond. The trial court denied defendants ex parte application, and this appeal followed.

DISCUSSION

I. Periodic Payment Under Section 667.7

Defendant contends the trial court erred by denying his motion for an order requiring periodic payment of future damages, by entering judgment without ordering periodic payment of such damages, and by denying his ex parte application in which the defendant requested that the judgment be vacated so that an order for periodic payments could be included in the judgment. Despite the manner in which defendant has framed the issue concerning his request for periodic payment, however, the real issue is whether his request was timely made to the arbitrators.

Section 667.7 provides that when a plaintiff in a medical malpractice action is awarded future damages of $50,000 or more, the trial court, upon the timely request of either party, shall enter a judgment providing for the periodic payment of those damages.^[2] In enacting section 667.7, the Legislature expressed its intent to authorize the entry of judgments in malpractice actions against health care providers which provide for the payment of future damages through periodic payments rather than lump-sum payments. ( 667.7, subd. (f).) The Legislature further stated its intent that the courts will utilize such judgments to provide compensation sufficient to meet the needs of an injured plaintiff and those persons who are dependent on the plaintiff for whatever period is necessary while eliminating the potential windfall from a lump-sum recovery which was intended to provide for the care of an injured plaintiff over an extended period who then dies shortly after the judgment is paid, leaving the balance of the judgment award to persons and purposes for which it was not intended. (Ibid.) The express language of the statute, as well is its legislative history, leaves little doubt that . . . the Legislature intended to impose a mandatory duty on the trial court to enter a periodic payment judgment in cases falling within the four corners of the section. (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 155 (Fein), fn. omitted.)

In American Bank & Trust Co. v. Community (1984) 36 Cal.3d 359, 374, the California Supreme Court considered the precise roles which the Legislature contemplated that the jury and court would play in the formulation of a periodic payment judgment under section 667.7. In ruling that the statute did not infringe on the constitutional right to a jury trial, the Supreme Court concluded: [S]ection 667.7 should be interpreted to require the jury to designate the portion of its verdict that is intended to compensate the plaintiff for future damages. . . . [] Once the jury has designated the amount of future damages--and has thus identified the amount of damages subject to periodic payment-- . . . the courts authority under section 667.7, subdivision (b)(1), to fashion the details of a periodic payment schedule does not infringe [on] the constitutional right to jury trial. (American Bank & Trust,at p. 376.)

Thus, in the context of a jury trial, the jury plays a critical role in determining whether the periodic payment procedure is an available option. In a jury trial, the trial court cannot formulate a periodic payment schedule pursuant to section 667.7 unless the jury has designated the portion of its verdict intended to compensate the plaintiff for future damages, and that amount equals or exceeds $50,000. [Citation.] Therefore, while a trial court may have jurisdiction to entertain a motion for periodic payment of future damages until judgment has been entered, it cannot grant such a motion in a jury trial unless the jury has identified the amount of damages subject to periodic payment. (Craven v. Crout (1985) 163 Cal.App.3d 779, 784 (Craven), fn. omitted.)

Consistent with these principles, courts have held that a defendant who fails to make a timely request for periodic payment of future damages before a jury verdict is returned, thereby precluding the jury from making findings that would allow the trial court to structure a periodic payment schedule, forfeits the right to a periodic payment award. (Fein, supra, 38 Cal.3d at p. 156 [defendant did not move for periodic payment award until after jury returned special verdict designating a lump-sum noneconomic damage award and unapportioned lost earnings award]; Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d 388, 406 (Hurlbut) [trial court properly ordered lost earnings award paid in lump-sum under judgment when defendant failed to request special findings by the jury apportioning amount of lost earnings subject to periodic payment under section 667.7].) The burden is on the defendant to propose the necessary special findings. (Hurlbut, supra, at p. 407.)

Although the instant case was submitted to binding arbitration rather than tried by a jury, the same principles apply. The record shows that defendant did not request the arbitrators to provide for periodic payment of plaintiffs future damages until April 14, 2008 -- more than two months after the award was issued and nearly four months after the arbitration concluded. The award issued by the arbitrators on February 26, 2008, accordingly did not segregate plaintiffs lump-sum economic damages award into past and future damages.^[3] (See Knight, et al., Cal. Practice Guide: Alternative Dispute Resolution (The Rutter Group 2008)  5:402.14, p. 5-267 [arbitrator must be informed of a rejected section 998 offer prior to making a final award in order to impose any applicable costs].) Absent a finding by the arbitrators as to what portion of the $450,000 economic damages award was intended to compensate plaintiff for future damages, the trial court could not formulate a periodic payment schedule pursuant to section 667.7. The trial court accordingly did not err by denying defendants request for periodic payment of future damages. (Fein, supra, 38 Cal.3d at p. 156; Hurlbut, supra, 207 Cal.App.3d at p. 406; see Craven, supra, 163 Cal.App.3d at p. 784.)

Defendant contends that instead of denying without prejudice his motion for periodic payment of future damages, the trial court should have continued the hearing on the motion so that defendant could seek clarification from the arbitrators as to what portion of the $450,000 award for past and future economic damages was intended to compensate plaintiff for future damages. Defendants counsel did not seek such a continuance, however, but instead expressed an intent to refile the motion at a future date. A continuance was not granted because none was requested.

Defendant next contends the trial court erred by entering judgment on the arbitration award without ordering periodic payment of future damages. Once an arbitration award has been made, a trial court is limited in the extent of the relief it may grant. (Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.) Under section 1286,^[4]once a petition to confirm, correct, or vacate is filed, the superior court has only four choices: It may (1) confirm the award, (2) correct the award and confirm it as corrected, (3) vacate the award, or (4) dismiss the proceedings. (Sunnyvale Unified School Dist. v. Jacobs (2009) 171 Cal.App.4th 168, 175.) Use of the word shall in section 1286 renders the provision mandatory. (Law Offices of David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 8 (Segreto).) Thus, upon a petition seeking to confirm, vacate, or correct an arbitration award, the court must confirm the award, unless it either vacates or corrects it. [Citation.] (Louise Gardens of Encino Homeowners Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 658 (Louise Gardens), fn. omitted.) If the award is confirmed, judgment must be entered in conformity therewith. ( 1287.4.)^[5]

In the instant case, plaintiff petitioned to confirm the arbitration award. In his opposition to plaintiffs petition, defendant did not seek to correct or vacate the award. The trial court accordingly had no choice but to confirm the award as made. ( 1286; Segreto, supra, 176 Cal.App.4th at p. 8; LouiseGardens, supra,82 Cal.App.4th at p. 658.) Once the arbitration award was confirmed, the trial court was required to enter judgment in conformity with the award as confirmed. ( 1287.4.) Because the award as confirmed did not provide for periodic payment of future damages, the trial court did not err by entering judgment on the arbitration award without ordering periodic payment of such damages.

Defendant claims [i]t was further error for the court to deny the defendants ex parte application on July 3, 2008 in which the defendant requested that the judgment be vacated so that an order for periodic payments could be included in the judgment. The ex parte application filed by defendant on July 3, 2008, did not seek an order vacating the judgment. It requested (1) An order permitting the arbitration panel to allocate damages between past and future economic damages and determine the present cash value of the plaintiffs economic damages, and (2) An order temporarily staying enforcement of the judgment pursuant [to section] 918, so that the defendant can have time to arrange for the posting of a bond.

The trial court did not err by denying defendants request for an order allowing the arbitrators to allocate past and future economic damages.^[6] An arbitrator may issue an amended or supplemental award on a submitted issue inadvertently omitted from the initial award through the arbitrators mistake, inadvertence or excusable neglect if the amendment is made before judicial confirmation of the original award, is not inconsistent with other findings on the merits of the controversy, and does not cause demonstrable prejudice to the legitimate interests of any party. (Landis, supra, 122 Cal.App.4th at p. 992; Century City Medical, supra, 86 Cal.App.4th at p. 877; A.M. Classic, supra, 70 Cal.App.4th at p. 1478.) Plaintiffs future economic damages was not an issue submitted to the arbitrators, as defendant did not raise the issue until after the arbitration had concluded and a final award issued. Even assuming a finding concerning future damages was omitted from the final award through the arbitrators mistake rather than defendants, however, the arbitrators were not authorized to issue an amended or supplemental award after the February 26, 2008 award was judicially confirmed. (A.M. Classic, supra, at p. 1478.) Defendants ex parte request for an order permitting the arbitrators to allocate past and future economic damages was made after entry of judgment and was thus properly denied by the trial court.

II. Expert Witness Fees and Prejudgment Interest

Defendant contends the trial court erred by awarding plaintiff expert witness fees under section 998 and prejudgment interest under Civil Code section 3291 because plaintiffs settlement offer was not a valid offer under section 998 and because the trial court lacked authority to award costs incurred during the arbitration.

A. Validity of Plaintiffs Section 998 Offer

Section 998 provides: (b) Not less than 10 days prior to commencement of trial or arbitration . . . any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The statute further provides: If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn . . . . ( 998, subd. (b)(2).) When a statutory settlement offer pursuant to section 998 is served by mail, the provisions of section 1013^[7]apply and extend the 30-day period for acceptance of the offer by five days. (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 275.)

In order to function as an offer for purposes of section 998, an offer must remain open for the statutorily designated period -- prior to trial or . . . within 30 days after it is made, whichever occurs first . . . . [Citations.] A section 998 offer to settle may be revoked before acceptance, but if revoked prior to the expiration of the statutory period, it no longer functions as an offer for purposes of the cost benefits of section 998. [Citations.] (Marina Glencoe, L.P. v. Neue Sentimental Film AG (2008) 168 Cal.App.4th 874, 880; Marcey v. Romero (2007) 148 Cal.App.4th 1211, 1216 [section 998 offer revoked before expiration of statutory period forfeits its status as an offer under the statute].)

Defendant contends plaintiffs section 998 offer was invalid because it did not remain open for the required number of days. Plaintiffs offer to settle was made and served by mail on the same day -- November 22, 2005. The offer, by its terms, stated that it would be deemed withdrawn if not accepted within thirty (30) days from the date it is made. Defendant argues that because plaintiffs offer was served by mail, the period for his response was extended by five days under section 1013. He maintains that the offer was invalid because it remained open for 30 days rather than 35 days, even though he made no attempt to accept the offer at any time. We need not address this argument, however, because defendant did not challenge the application of section 998 on this basis in the trial court below. He therefore forfeited the right to do so in this appeal. (See Telles Transport, Inc. v. Workers Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167.)

B. Trial Courts Authority to Award Costs Under Section 998

Defendant contends the trial court lacked authority to award plaintiff expert witness fees under section 998. He maintains the trial courts authority to award costs under section 998 was limited to those incurred by plaintiff in the superior court to enforce the arbitration award and that only the arbitrators were authorized to award costs incurred during the arbitration. The plain language of section 998 contradicts this argument. Section 998, subdivision (d) provides: If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiffs costs. (Italics added.)

Defendant offers no authority to support his interpretation of section 998 as limiting a courts authority to award costs following an arbitration to costs incurred to enforce the arbitration award. Corona v. Amherst Partners (2003) 107 Cal.App.4th 701, on which defendant relies to support his position, did not involve an offer to settle pursuant to section 998 or an award of costs pursuant to that statute, and is therefore inapposite. Case authority applying section 998 is contrary to defendants position. (Pilimai v. Farmers Ins. Exchange Co. (2006) 39 Cal.4th 133 (Pilimai); Weinberg v. Safeco Ins. Co. of America(2004) 114 Cal.App.4th 1075, 1085 (Weinberg).)

In Pilimai, the California Supreme Court affirmed the trial courts award of costs under section 998 to a plaintiff in an uninsured motorist arbitration who obtained an award more favorable than a pre-arbitration settlement offer refused by the defendant. The award was silent on the subject of costs and prejudgment interest. (Pilimai, supra, 39 Cal.4th at p. 137.) Noting that the statute authorized an award of costs actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration (id. at p. 149, original italics), the Supreme Court concluded: From the above language, it is apparent that once the conditions of . . . section 998 are met, a defendant may be required to pay expert witness fees incurred during arbitration. (Ibid.)^[8]

In Weinberg, Division Seven of this court affirmed the trial courts cost award under section 998 to the prevailing plaintiff in an arbitration. Division Seven determined that although the arbitration award did not include costs, such an omission did not preclude the trial court from awarding costs as part of its judgment enforcing the award: Even though the arbitrator here did not determine [the plaintiff] was entitled to costs, he did not determine [the plaintiff] was not entitled to costs. (Weinberg, supra, 114 Cal.App.4that p. 1085.) Division Seven also rejected the defendants argument that it was the function of the arbitrator, not the court, to award costs (ibid), noting that subdivision (d) of section 998 states that the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover costs of the services of expert witnesses. (Weinberg, at p. 1085,italics added.)

In the instant case, plaintiff met the eligibility requirements for a cost award under section 998 by obtaining an arbitration award more favorable than the pre-arbitration settlement offer defendant refused. Pursuant to section 998, the trial court had the authority to award plaintiff expert witness fees incurred in preparing for and during the arbitration. ( 998, subd. (d); Pilimai, supra, 39 Cal.4th at pp. 151-152.)

C. Reasonableness of Costs Under Section 998

Defendant contends there was no evidentiary basis for the trial court to determine that the expert witness fees awarded were reasonably necessary for the preparation and conduct of the arbitration. Section 998 permits the trial court to award a prevailing plaintiff its expert witness costs if it finds the costs were actually incurred and reasonably necessary to prepare for and conduct the arbitration. ( 998, subd. (d).) An award of expert witness fees under section 998 is reviewed under the abuse of discretion standard. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262.) Under this standard, an appellate court will not interfere with the trial courts discretionary determination unless it finds that no judge could reasonably have made the challenged order. (Michelson v. Camp (1999) 72 Cal.App.4th 955, 976.)

[A] memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case. (Cal. Rules of Court, rule 3.1700(a)(1).) If the claimed items appear on their face to be properly allowable costs, the verification is sufficient by itself to make a prima facie showing the costs were necessary and reasonable, without the need to attach bills, invoices, statements, or other supporting documents. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 304.)

The burden is on the opposing party to show the costs were not necessary and reasonable. (Ladas v. CaliforniaState Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Once the opposing party makes such a showing, in support of a motion to tax costs, the challenged items are put in issue and the burden shifts back to the party claiming them as costs. (Ibid.) But conclusory assertions alone are not enough to cause this shift to happen. [A] partys mere statements in the points and authorities accompanying its notice of motion to strike [the] cost bill[,] and the declaration of its counsel[,] are insufficient to rebut the prima facie showing [that the costs were necessarily incurred]. (Dumrichob, supra, 63 Cal.App.4th at p. 1266, quoting Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) [I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)

Defendant failed to meet his burden of establishing that plaintiffs claimed costs for expert witness fees were not reasonably incurred. We find no abuse of discretion by the trial court in awarding such fees.

D. Trial Courts Authority to Award Prejudgment Interest Under Civil Code Section 3291

Civil Code section 3291 mandates an award of prejudgment interest to a prevailing plaintiff in a personal injury action who obtains a judgment more favorable than a section 998 offer refused by the defendant. The statute provides in relevant part: 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 plaintiffs first offer pursuant to Section 998 . . . which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment. (Civ. Code, 3291.)

Defendant contends Civil Code section 3291 does not apply to contractual arbitrations such as the one entered into by the parties here, and he cites several pre-1997 cases to support this contention. (Parker v. Babcock (1995) 37 Cal.App.4th 1682, 1687; Woodward v. Southern Cal. Permanente Medical Group (1985) 171 Cal.App.3d 656, 667-668; Wagy v. Brown (1994) 24 Cal.App.4th 1, 8-10.) Defendant acknowledges that subsequent to these cases, the Legislature amended section 998 to apply expressly to arbitrations, but argues that because the Legislature did not also amend Civil Code section 3291, that statute does not apply to contractual arbitrations. This argument was rejected by Division Seven of this court in Weinberg. In Weinberg, the court affirmed a judgment awarding prejudgment interest under Civil Code section 3291 to the prevailing plaintiff in an arbitration. The court in Weinberg reasoned that the trial courts entry of judgment confirming the arbitration award was a judgment within the meaning of Civil Code section 3291. (Weinberg, supra, 114 Cal.App.4th at pp. 1084-1085.)

Another authority has noted: Although [section] 998 expressly applies in contractual arbitrations [citation], [Civil Code section] 3291 refers to [section] 998 offers in the context of a trial and the failure to obtain a more favorable judgment. Nevertheless, the court may assess [section] 3291 interest when entering judgment confirming the arbitration award: The failure to amend [section] 3291 to track [section] 998 was likely a legislative oversight and, in any event, entry of judgment following the award permits literal compliance with the statute. (Knight, et al., Cal. Practice Guide: Alternative Dispute Resolution, supra, 5:402.20, pp. 5-269, 5-270, citing Weinberg, supra, 114 Cal.App.4th at pp. 1084-1085.)

The trial court did not err by awarding plaintiff prejudgment interest under Civil Code section 3291.

DISPOSITION

The judgment, including costs and prejudgment interest, is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________________, J.

CHAVEZ

We concur:

______________________________, P. J.

BOREN

_____________________________, J.

DOI TODD

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^[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2] Section 667.7 provides in pertinent part: (a) In any action for injury or damages against a provider of health care services, a superior court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds fifty thousand dollars ($50,000) in future damages. In entering a judgment ordering the payment of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments which will compensate the judgment creditor for such future damages. Future damages is defined to include damages for future medical treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and suffering of the judgment creditor. ( 667.7, subd. (e)(1).)

^[3] Defendants April 14, 2008 request to the arbitrators for a supplemental award that would include periodic payment of future damages was also untimely. Although an arbitrator may issue an amended or supplemental award to resolve an issue inadvertently omitted from the initial award (A.M. Classic Construction, Inc. v. Tri-Build Development Co. (1999) 70 Cal.App.4th 1470, 1478 (A.M. Classic)), such a supplemental award must be requested and acted upon within the time limits prescribed by section 1284. (Landis v. Pinkertons, Inc. (2004) 122 Cal.App.4th 985, 992 (Landis); CenturyCityMedicalPlaza v. Sperling, Isaacs & Eisenberg (2001) 86 Cal.App.4th 865, 877 (Century City Medical); but see Delaney v. Dahl (2002) 99 Cal.App.4th 647, 658-660 [award may be amended any time before judicial confirmation].) Section 1284 requires a party seeking to correct an arbitration award to submit a written application not later than 10 days after service of a signed copy of the award on the applicant. Upon submission of such a written application, the arbitrator may correct the award not later than 30 days after service of a signed copy of the award on the applicant. (Ibid.) In this case, the arbitration award was served on February 26, 2008. Defendants April 14, 2008 request that the arbitrators supplement the award to provide for periodic payment of future damages was made more than 10 days after that date and was thus untimely.

^[4] Section 1286 states: If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.

^[5] Section 1287.4 states in part: If an award is confirmed, judgment shall be entered in conformity therewith.

^[6] Defendant does not challenge the denial of his ex parte request for an order staying enforcement of the judgment.

^[7] Section 1013, subdivision (a), governs service by mail and provides in relevant part: In case of service by mail . . . [t]he service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail . . . .

^[8] The Supreme Court in Pilimai disallowed the award of prejudgment interest under Civil Code section 3291 because it concluded that prejudgment interest can only be awarded in an action for personal injury and the uninsured motorist arbitration concerned an action on a contract. (Pilimai, supra, 39 Cal.4that pp. 151-152.)