Petrou v. Trites
Filed 12/13/12 Petrou v. Trites CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR
VASILIA PETROU et al.,
Plaintiffs and Appellants,
v.
DAFNA TRITES et al.,
Defendants and Respondents.
B226747
(Los Angeles County
Super. Ct. No. BC383814)
APPEAL from a
judgment and order of the Superior Court of
Richard Adler, Judge. Affirmed.
Gary Rand
& Suzanne E. Rand-Lewis, for Plaintiffs and Appellants.
Taylor Blessey
and Barbara Reardon for Defendant and Respondent Waleed Doany.
Lewis Brisbois
Bisgaard & Smith, Mike Martinez and John J. Weber for Defendant and
Respondent Catholic Healthcare West.
Law,
Brandmeyer + Packer, Robert B. Packer and Paul M. Corson for Defendants and
Respondents Dafna Trites and Women’s Healthcare Institute, Inc.
Appellants
Vasilia Petrou and Andreas Andreou brought suit for
consortium against respondents Dafna Trites, D.O., Women’s Healthcare
Institute Medical Center, Inc. (WHIMC, the entity through which Dr. Trites
provided her services), Waleed Doany, M.D., and Catholic Healthcare West, doing
business as Northridge Hospital Medical Center (the Hospital).
her pregnancy, which began in 2006 and culminated in the birth of the couple’s
daughter in 2007. Dr. Doany became her
perinatologist in February 2007.
name="_ftnref2" title="">[2]
Appellants
claimed injury to themselves based on the alleged negligence/medical
malpractice of respondents. The matter
was resolved by a jury trial which resulted in a defense verdict. Appellants contend (1) the trial court
committed misconduct during the course of the trial; (2) respondents’ counsel
committed misconduct during the course of the trial; (3) the jury panel was
prejudiced by positive comments made by prospective jurors about Dr. Trites;
(4) the court gave an invalid instruction with respect to the duty of care; and
(5) the court improperly awarded expert witness fees under Code of Civil
Procedure section 998. Finding no error,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Vasilia
Petrou has Crohn’s disease, a chronic disorder of the bowel. In March and April 2007, Petrou, then in her
last trimester of pregnancy, began to experience a burning sensation in her
normal, pregnancy-related conditions.
Dr. Trites subsequently diagnosed
pregnancy-related disorder. Dr. Trites
continued to diagnose round ligament pain as Petrou complained of worsening
pain and other symptoms. On June
5, 2007,
Petrou consulted Dr. Doany, who ordered an ultrasound and diagnosed an impacted
bowel. Dr. Doany prescribed an
over-the-counter laxative. The next day,
feeling worse, Petrou went to the Hospital emergency room, where she was seen
by hospital personnel and consulted by phone with Dr. Trites who advised her to
go home and take Tylenol. In the days
that followed, Petrou continued to experience abdominal pain and Dr. Trites
advised Petrou that her condition was a normal result of pregnancy and that she
was also feeling the effects of a virus she had contracted. On July 2, Petrou felt unable to get out of
bed and Dr. Trites recommended that labor be induced. Petrou gave birth to a healthy baby girl. Petrou was found to be anemic prior to her
discharge. Dr. Trites concluded this
condition was the result of the labor and delivery and recommended against a
transfusion.
Approximately
two weeks after her discharge, Petrou felt a large lump on her right side. She did not contact Dr. Trites or Dr. Doany,
but a few days later went to St Joseph’s Medical Center. On July 18, Petrou underwent abdominal
surgery, which revealed an intestinal perforation leading to formation of a
fistula and abscess. The intestine was repaired,
but the hospitalization and surgery kept Petrou from being with her baby for
ten days and left her with an unsightly scar and other alleged injuries.
At trial,
appellants and their medical experts took the position that the fistula and
abscess were the result of an untreated flareup of Petrou’s Crohn’s disease,
which had begun in May, when Petrou reported her first symptoms to Dr.
Trites. Appellants’ experts testified
that Dr. Trites and Dr. Doany were negligent for failing to diagnose the
problem when appellant was seen by them prior to the delivery or for failing to
recommend that she see a gastroenterologist.
The Hospital was said to be negligent because its nursing staff failed
to recommend that a staff physician see Petrou when she was at the Hospital
under the treatment of Dr. Trites and failed to object when Dr. Trites
recommended that she be discharged.
Respondents
and their experts testified that the symptoms Petrou reported were related to
her pregnancy, as was diagnosed by her doctors at the time. They testified that the flare-up of Petrou’s
Crohn’s disease which led to the need for surgery occurred after the delivery
of her baby, when she felt the mass or lump.
According to respondents and their experts, if a perforation had existed
in May, as appellants’ experts theorized, it would have begun spilling bowel
contents into the abdominal area and Petrou would have been much sicker in June
and July. The Hospital’s expert
specifically testified that it would not have been warranted for the nurses to
go outside the normal chain of command by disregarding Dr. Trites’s orders or
recommending that Petrou be seen by another physician.
After hearing
evidence for two weeks, the jury deliberated and rendered a unanimous verdict
in favor of respondents, finding that none of them was negligent in the care
and treatment of Petrou. After the
verdict was rendered, the court awarded costs to respondents. Because respondents had served settlement
offers under section 998 of the Code of Civil Procedure prior to trial, the
costs awarded included expert witness fees -- $26,512 to Dr. Trites and WHIMC,
$28,700 to Dr. Doany, and $25,000 to the Hospital. This appeal followed.
DISCUSSION
A. Alleged
Judicial Misconduct or Bias
Appellants
contend the trial court committed misconduct or indicated bias by making
condescending and disparaging remarks to or about appellants’ counsel at
trial. Appellants further contend the
court improperly interfered with counsel’s questioning of witnesses by
interposing objections and by interrupting with its own questions. The contentions fail on both procedural and
substantive grounds.
First, with
respect to procedural matters, a party claiming judicial misconduct is required
to object and seek a jury admonition as a prerequisite to raising the issue on
appeal. (People v. Snow (2003) 30 Cal.4th 43, 78; People v. Fudge (1994) 7 Cal.4th 1075, 1108.) Timely objection to questionable comments
enables the court to dispel any misunderstanding with appropriate
admonitions. (People v. Wright (1990) 52 Cal.3d 367, 411, disapproved in part on
another ground in People v. Williams
(2010) 49 Cal.4th 405.) Appellants
raised no objection at trial and requested no admonition based on any comments
of the court referenced on appeal.
Accordingly, the issue is forfeited.
Moreover, even
if the claim is considered on the merits, our review of the portions of the
record cited by appellants reveals no prejudicial misconduct or bias. In support of their claim of condescension
and disparagement, appellants cite to six exchanges in the record. One occurred outside the presence of the
jury. Four involved the court
interrupting appellants’ counsel when she attempted to make “editorial
comments†about or further argue judicial rulings in front of the jury. “‘It is well within [a judge’s] discretion to
rebuke an attorney, sometimes harshly, when that attorney asks inappropriate
questions, ignores the court’s instructions, or otherwise engages in improper
or delaying behavior.’†(
The final
cited exchange occurred when the court suggested that when attempting to
impeach Dr. Trites with deposition testimony, it would be “sporting†for
appellants’ counsel to show the witness the transcript or inform her of the
page number where the allegedly contradictory testimony appeared. When counsel questioned the word “sporting,â€
the court responded: “I think the
British call it sporting. I’d say it’s
ethical. Take your pick.†Counsel responded that it was “not really
[her] job to be sporting.†The court
said: “[B]ut it is as an officer of the
court,†and then went on to explain “[w]hat you were doing was proper[;] [y]ou
just didn’t give the page.â€
A trial court
has an affirmative duty to “exercise reasonable control over the mode of
interrogation of a witness so as to make interrogation as rapid, as distinct,
and as effective for the ascertainment of the truth, as may be, and to protect
the witness from undue harassment or embarrassment.†(Evid. Code, § 765, subd. (a).) In context, it is clear the court was doing
no more than ensuring the expeditious questioning of the witness by correcting
a procedural flaw in counsel’s questioning, not suggesting she was
unethical. Moreover, we can conceive of
no way in which the court’s comment could have affected the results of the
lengthy trial.
With respect
to the court’s alleged interference with counsel’s presentation of appellants’
case, they cite a handful of instances over the course of a two-week trial when
the court interrupted counsel to ask a question of a witness. On nearly every occasion, the court was
restating questions asked by attorneys which the witness did not appear to
understand, or seeking clarification of terms likely to be unfamiliar to the
jury, such as “definitive diagnosis†or “ICD code.†Appellants’ contention that the court
“interpose[ed] its own objections†cites multiple instances where the court
merely provided a second rationale for sustaining an attorney objection. The court did independently interpose
objections from time to time, but in nearly all of those occasions, the
questions involved were cumulative and redundant or the form of the question
was entirely improper because it had been prefaced with a lengthy statement or
argument.
“‘The law of
this state confers upon the trial judge the power, discretion and affirmative
duty, predicated upon his primary duty and purpose “to do justice,†to
. . . participate in the examination of witnesses whenever he
believes that he may fairly aid in eliciting the truth, in preventing
misunderstanding, in clarifying the testimony or covering omissions, in
allowing a witness his right of explanation, and in eliciting facts material to
a just determination of the cause.’†(
256.) To this end, “[a] court may
control the mode of questioning of a witness and comment on the evidence and
credibility of witnesses as necessary for the proper determination of the
case.†(People v. Santana (2000) 80 Cal.App.4th 1194, 1206.) “‘[I]f a judge desires to be further informed
on certain points mentioned in the testimony it is entirely proper for [the
judge] to ask proper questions for the purpose of developing all the facts in
regard to them. Considerable latitude is
allowed the judge in this respect . . . .’†(People
v. Carlucci, supra, 23 Cal.3d at
p. 255.) In occasionally interrupting
appellants’ counsel, the court was exercising its prerogative to elicit the
truth, prevent misunderstandings, control the manner of questioning, prevent
the introduction of extraneous and redundant evidence, and ensure an
expeditious trial. There was no
B. Alleged
Attorney Misconduct
Appellants
cite to portions of the record where respondents’ counsel allegedly made
“improper personal comments†about appellants’ counsel. Their brief does not specify the comments
made, explain how they were improper or provide the context in which we might
determine whether they affected the outcome of the trial. An appellate brief “‘should contain a legal
argument with citation of authorities on the points made. If none is furnished on a particular point,
the court may treat it as waived, and pass it without consideration.’†(In re
Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164.) The appellate court is not required to
develop the appellants’ arguments for them.
(Dills v. Redwoods Associates, Ltd.
(1994) 28 Cal.App.4th 888, 890, fn. 1.)
Our review of
the record reveals that the majority of the cited comments either occurred
outside the presence of the jury or involved innocuous complaints that counsel
was asking improper questions or raising improper objections. In almost all of the cited instances, counsel
for appellants failed to object. On
those few occasions where an objection was raised, counsel did not follow up
with a request that the jury be admonished to disregard the comments. As with the alleged judicial misconduct,
allegations that the attorneys representing the opposing party committed
misconduct are forfeited if the appellant fails to make a timely objection,
make known the basis of the objection and ask the court to admonish the
jury. (People v. Brown (2003) 31 Cal.4th 518, 553; Horn v. Atchison T. & S. F. Ry. Co. (1964) 61 Cal.2d 602,
610.) Cautionary admonitions and instructions “must be
considered a presumptively reasonable alternative†to reversal on appeal or a new trial. (NBC
Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178,
1224.) “‘It is only in extreme cases
that the court, when acting promptly and speaking clearly and directly on the
subject, cannot, by instructing the jury to disregard such matters, correct the
impropriety of the act of counsel and remove any effect his conduct or remarks
would otherwise have.’†(
admonition deprived the trial court of the opportunity to counter the effect,
if any, of opposing counsel’s comments.
Appellants
further contend that respondents’ counsel conducted a “smear campaign†against
appellants’ expert, Robert Friedland, M.D.
Again, they fail to summarize the comments or questions that allegedly
fit this description, explain why the comments or questions were improper, or
provide argument or context to support how the comments or questions affected
the outcome of trial.
name="_ftnref4" title="">[4] To the extent appellants contend the court
committed error in permitting certain questions to be asked or information to
be elicited, “‘an appellate court reviews any ruling by a trial court as to the
admissibility of evidence for abuse of discretion.’ [Citation.]â€
(Dart Industries, Inc. v.
Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078.) We are also guided by the rule that a
judgment cannot be set aside “by reason of the erroneous admission of evidenceâ€
unless we are convinced that “the admitted evidence should have been excluded
on the ground stated [at trial] and that the error or errors complained of
resulted in a miscarriage of justice.â€
(Evid. Code, § 353.) “In civil
cases, a miscarriage of justice should be declared only when the reviewing
court, after an examination of the entire cause, including the evidence, is of
the opinion that it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.†(Huffman
v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 692.) The record of comments made and questions
asked by respondents’ counsel of Dr. Friedland does not support a finding that
a miscarriage of justice occurred.
C. Alleged
Juror Bias
During
jury selection, two prospective jurors revealed that they knew Dr. Trites,
having been a patient or the spouse of a patient. The first juror stated “I think she’s
wonderful†and “really good.†The court
excused that juror and admonished the panel to disregard statements by
prospective jurors about any of the witnesses or parties. The court then asked the panel whether anyone
else had been a patient of Dr. Trites’s.
Another prospective juror volunteered that Dr. Trites had delivered his
son, “did a wonderful job,†and had “helped [him and his wife] through a
miscarriage prior to that.†Appellants’
counsel moved to discharge the entire venire, contending each member had been
prejudiced by the comments. The court
denied the motion and instead indicated it would inquire of -- and permit
counsel to inquire of -- the prospective jurors to determine whether the
statements had affected their ability to be fair. After inquiries were made, the court concluded
it did not appear that the entire panel or any individual remaining prospective
juror was biased or prejudiced.
name="_ftnref5" title="">[5] Appellants contend the court abused its
discretion by refusing to order a new panel.
“[T]he trial
court possesses broad discretion to determine whether or not possible bias or
prejudice against the defendant has contaminated the entire venire to such an
extreme that its discharge is required.â€
(People v. Medina (1990) 51
Cal.3d 870, 889.) Discharge of a venire
is a “drastic remedy,†and not required as a matter of course “merely because a
few prospective jurors have made inflammatory remarks.†(Ibid.) In such situations, “further investigation
and more probing voir dire examination may be calledâ€; “discharging the entire
venire is a remedy that should be reserved for the most serious occasions of
demonstrated bias or prejudice, where interrogation and removal of the
offending venirepersons would be insufficient protection for the [party seeking
discharge].†(Ibid.) “The conclusion of a
trial judge on the question of individual juror bias and prejudice is entitled
to great deference and is reversed on appeal only upon a clear showing of abuse
of discretion.†(People v. Martinez (1991) 228 Cal.App.3d 1456, 1466.) “Just as a finder of fact is in a better
position than the reviewing court to judge the credibility of a witness, the
trial judge is in a better position to gauge the level of bias and prejudice
created by juror comments.†(
We conclude
that the court did not abuse its discretion.
Two prospective jurors expressed positive opinions of Dr. Trites’s
capabilities under circumstances not likely to parallel appellants’; both were
excused. The prospective jurors were at
that point strangers to each other. The
opinions expressed were unlikely to have had a substantial influence on the
views of other venirepersons. The
court’s decision to inquire, and to permit counsel to inquire, in order to
determine the impact, if any, on other prospective jurors was appropriate.
court’s conclusion that the remaining members of the panel were not tainted,
and that it was unnecessary to order a new venire.
D. Alleged
Instructional Error
The
trial court, over appellants’ objection, used BAJI instructions to inform the
jurors of the legal considerations governing their determination of the
case. The jurors were instructed
pursuant to BAJI No. 6.01 that “[a] physician who holds himself or herself out
as a specialist in a particular field of medical, surgical or other healing
science, and who performs professional services for a patient, as a specialist
in that field, owes that patient the following duties of care: [¶] One, the duty to have that degree of
learning and skill ordinarily possessed by reputable specialists, practicing in
the same field under similar circumstances[;] [¶] Two, the duty to use the care
and skill ordinarily exercised by reputable specialists practicing in the same
field under similar circumstances[;] [¶] And three, the duty to use reasonable
diligence and the best judgment in the exercise of skill and the application of
learning. [¶] A failure to perform any
one of these duties is negligence.â€
name="_ftnref7" title="">[7]
The parallel
CACI instruction -- No. 501 -- more succinctly provides: “A medical practitioner is negligent if he
fails to use the level of skill, knowledge, and care in diagnosis and treatment
that other reasonably careful medical practitioners would use in the same or
similar circumstances. This level of
skill, knowledge, and care is sometimes referred to as ‘the standard of
care.’†Comparing the two, appellants
contend the BAJI instruction’s reference to the doctors’ “best judgmentâ€
resulted in an improper focus on respondents’ states of mind rather than their
actions and compounded appellant’s burden at trial. We find no merit in appellants’ contention.
Putting the
cart before the horse, appellants contend we must consider the facts most
favorably to the party appealing the instructional error. Before that legal maxim applies, however, the
party contesting the instruction must first establish error -- that the
instruction given incorrectly stated the law.
(Bay Guardian Co. v. New Times
Media LLC (2010) 187 Cal.App.4th 438, 462.)
“‘As long as the instructions cover the issues involved and correctly
and fully state the law, the fact that either party would prefer that they be
otherwise expressed or expressed in a repetitious manner or different language
is immaterial.’†(Gress v. Rousseau (1962) 204 Cal.App.2d 149, 154; accord,
579, 585 [“A court is required to instruct the jury on the points of law
applicable to the case, and no particular form is required as long as the
instructions are complete and correctly state the law.â€].) There is no misstatement of the law in BAJI
No. 6.01. It has long been said that the
law places on a physician a duty of “‘“possessing that reasonable degree of
learning and skill that is ordinarily possessed by physicians and surgeons in
the locality where [the physician] practices,â€â€™â€ of “‘“us[ing] reasonable care
and diligence in the exercise of [the physician’s] skill and the application of
[the physician’s] learning to accomplish the purpose for which [the physician]
was employedâ€â€™â€ and of “‘“us[ing] [the physician’s] best judgment in exercising
[the physician’s] skill and applying [the physician’s] knowledge.â€â€™â€ (Adams
v. Boyce (1940) 37 Cal.App.2d 541, 548; accord, Sansom v. Ross-Loos Medical Group (1943) 57 Cal.App.2d 549,
552.) The fact that CACI instructions
communicate a similar principle through the use of different language does not
suggests that the BAJI instruction contains a misstatement of law.
Appellants
contend the instruction compounded their burden
of proof by requiring them to prove “what [respondents] were thinking, not
just what [respondents] did or did not do in relation to Petrous’s care.†To the contrary, BAJI instruction No. 6.01
provides multiple methods of establishing negligence, each of them
independent. Appellants could have
established liability by proving that Dr. Trites or Dr. Doany lacked “that
degree of learning and skill ordinarily possessed by reputable specialists
practicing in the same field under similar circumstances†or by establishing that they failed “to use the care and skill
ordinarily exercised by reputable specialists practicing in the same field
under similar circumstances†or by
establishing that either doctor failed to use “reasonable diligence
duty of care, the jurors would have had to find that the doctors used
reasonable diligence and their best
judgment to reach a defense verdict. If
anything, the instruction alleviated appellants’ burden; its use could not have
prejudiced them.
E. Costs
1. Background
Prior to
trial, each respondent served an offer to compromise under Code of Civil
Procedure section 998 -- the Hospital in March 2009, Dr. Doany in December
2008, and Dr. Trites and WHIMC in November 2009. In their offers, respondents proposed to
waive costs and fees in exchange for a dismissal, but did not offer to pay any
monetary damages.
After judgment
was entered, each respondent submitted a memorandum of costs. The costs sought included expert witness fees
awardable under Code of Civil Procedure section 998.
$36,060; and Dr. Trites and WHIMC sought $26,512.
Appellants
moved to tax costs. With respect to the
claim for expert witness fees, they contended the offers of compromise had been
premature and made in bad faith. The
court issued an order granting in part and denying in part the motion to tax
costs as to the non-expert witness fee costs claimed. As to the expert witness fees sought by
respondents, the trial court requested further briefing on the issue of good
faith.
In
supplemental briefing, appellants presented evidence that at the time the
offers to compromise were served, appellants had not yet fully evaluated their
case or deposed the pertinent witnesses, but had engaged an expert -- Dr.
Friedland -- who had expressed the opinion that all respondents were liable for
appellants’ damages, which exceeded $100,000 in special damages for Petrou
alone. Appellants’ attorney stated
respondents had interfered with appellants’ ability to evaluate their claim
against them by failing to produce charts and other documents and refusing to
present witnesses for deposition. When
the Hospital and Dr. Doany served their offers, they had unresolved
summary judgment motions on file, which appellants had just opposed. Appellants contended that service of the
offers to compromise while summary judgment motions were pending but after
oppositions had been filed meant that the offers were “calculated . . . to be
[served] at a time when [respondents] knew [appellants] would not accept
them.â€
Issuing a
detailed analysis of appellants’ claims and respondents’ potential liability,
the court largely denied the motion to tax the cost of respondents’ expert
witnesses.
Hospital] liable since [appellants’ own expert] Dr. Friedland indicated that
the colon ruptured prior to [Petrou] being seen by the [Hospital]â€; (2) to the
extent the liability of the Hospital was dependent upon establishing that Dr.
Trites was its agent, appellants did not argue agency in opposing the
Hospital’s motion for summary judgment; (3) to the extent the liability of the
Hospital was dependent upon establishing that hospital staff should have
ignored Dr. Trites’s discharge orders, appellants never presented any legal
authority for such a proposition and Dr. Friedland’s opinion was unsupported
and inadequate; (4) appellants “never presented any evidence of an agency
relationship [with Dr. Trites]â€; (5) “[n]o nurse was called as a witness and
the hospital records supported [the Hospital’s] position [with respect to the
negligence of the nursing staff]â€; (6) because “Dr. Friedland was not a board
certified pathologist, like Dr. Doany, [Dr. Doany] reasonably believed that Dr.
Friedland’s opinions would not materially or adversely impact his defenseâ€; (7)
“[appellant’s counsel’s] lack of diligence [in taking party depositions] cannot
be used as a shield to insulate [appellants] from an otherwise reasonable
offerâ€; (8) with respect to appellants’ claim that Petrou’s bowel was
perforated as early as May 2007, evidence at trial established the
improbability of the condition taking so long to lead to septic shock;
(9) Dr. Friedland’s declaration filed in opposition to the summary judgment
motions provided “minimal†evidence of culpability and would have given
respondents “the perception that they were fault free and had ‘a very
significant likelihood of prevailing at trial’â€; and (10) although appellants
“presented a strong case that additional tests and treatment could have been
[ordered by Dr. Trites], there was no evidence that failure to administer these
added precautions was a cause of injury or damage to [Petrou].†Based on the foregoing, the court concluded
that the offers to compromise for a waiver of costs represented “a reasonable
and good faith offer†on the part of each respondent.
2. Analysis
“There is no
dispute that ‘a good faith requirement must be read into [Code of Civil
Procedure] section 998 in order to effectuate the purpose of the
statute.’†(Bates v. Presbyterian Intercommunity Hospital, Inc. (2012) 204
Cal.App.4th 210, 220 (Bates), quoting
Adams v. Ford Motor Co. (2011) 199
Cal.App.4th 1475, 1483.) Good faith
requires that “‘the settlement offer be “realistically reasonable under the
circumstances of the particular caseâ€â€™â€ and that there be “‘“some reasonable
prospect of acceptance.
[Citation.]â€â€™â€ (
“‘[A] party having no expectation that his offer will be accepted “will
not be allowed to benefit from a no-risk offer made for the sole purpose of
later recovering large expert witness fees.â€â€™â€
(Ibid.)
“‘When a
defendant perceives himself to be fault free and has concluded that he has a
very significant likelihood of prevailing at trial, it is consistent with the
legislative purpose of [Code of Civil Procedure] section 998 for the defendant
to make a modest settlement offer. If
the offer is refused, it is also consistent with the legislative intent for the
defendant to engage the services of experts to assist him in establishing that
he is not liable to the plaintiff. It is
also consistent with the legislative purpose under such circumstances to
require the plaintiff to reimburse the defendant for the costs thus
incurred.’†(Bates, supra, 204
Cal.App.4th at p. 220, quoting Culbertson
v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710-711.)
“Where the
defendant obtains a judgment more favorable than its offer, ‘“the judgment constitutes
prima facie evidence showing the offer was reasonable
. . . .â€â€™â€ (
102, 117.) “It is the plaintiff’s burden
to show otherwise.†(
v. Anderson (1999) 72 Cal.App.4th 111, 134.) “‘The reasonableness of a defendant’s [Code
of Civil Procedure] section 998 settlement offer is evaluated in light of “what
the offeree knows or does not know at the time the offer is made.â€â€™â€ (Bates,
supra, at p. 221, quoting
“Whether a
section 998 offer was reasonable and made in good faith is left to ‘the sound
discretion of the trial court.’†(
under Code of Civil Procedure section 998 for abuse of discretion. (Bates,
supra, 204 Cal.App.4th at p.
221.)
Appellants
contend that the offers were made in bad faith and that the court abused its
discretion by awarding expert witness fees.
They point out that the costs incurred by the Hospital and Dr. Doany as
of the date of their offers were minimal, and that those respondents were,
therefore, risking very little. They
reiterate that at the time the offers were served, appellants’ expert was of
the opinion that all respondents violated the pertinent standard of care in
treating Petrou, causing injury to Petrou, who incurred special damages
exceeding $100,000. They contend the
court erred in referring to trial testimony to support its view that the offers
were reasonable because offers must be evaluated based on the knowledge
available to the parties at the time they were made.
With respect
to the amount at risk in the Hospital’s and Dr. Doany’s offers, “‘[e]ven a
modest or “token†offer may be reasonable if an action is completely lacking in
merit.’†(Bates, 204 Cal.App.4th, supra,
at p. 220, quoting Nelson v. Anderson,
supra, 72 Cal.App.4th at p. 134.) As
the trial court explained, no agent of the Hospital’s treated Petrou except its
nurses, and appellants presented no evidence with respect to the nurses’
possible culpability. Dr. Doany examined
Petrou only once, on June 5, and the possibility that the rupture existed on
that date was extremely remote for the reasons discussed by the court in its
order. With respect to the court’s
reliance on trial evidence, the order reflected its understanding that “[a]
Defendant’s offer to waive its costs must be tested by the circumstances as
[they] existed at the time the offer was made . . . .†The court discussed the state of the evidence
at the time of appellants’ opposition to the summary judgment motions -- which
was just prior to the time the offers of the Hospital and Dr. Doany were served
and well before Dr. Trites and WHIMC’s offer was served. Implicit in the court’s ruling was the
understanding that the evidence available to appellants to support their claims
at the time of the offers was no better than that available at trial and likely
even less substantial. Thus, the court’s
reference to trial evidence reflected its effort to give appellants the benefit
of the doubt with respect to the strength of their claims.
Appellants
contend the amount awarded was unreasonable.
We are not persuaded. The trial
court evaluated every item of cost for reasonableness. It rejected the Hospital’s claim of having
incurred $85,965 in expert fees based on 186 hours of expert time, concluding
that a reasonable amount of expert fees for the Hospital was 50 hours at $500
per hour, or $25,000. It likewise
concluded that the expert witness fees of $36,060 sought by Dr. Doany were
excessive and awarded a total of $28,700 for the three experts he had
hired. The court did not reduce the
roughly $26,000 in expert fees sought by Dr. Trites and WHIMC, as these were
based on the equivalent of a day or two for each of three experts, including
trial time. These amounts are not
unreasonable based on the nature of the case and the length of trial. We find no abuse of the trial court’s
discretion in the award of expert witness fees under Code of Civil Procedure
section 998.
The judgment
and the cost order are affirmed.
Respondents are awarded costs on appeal.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.
Dr. Trites and Dr. Doany were
both sued as individuals and as professional corporations.
A perinatologist is an
obstetrician who specializes in care for pregnant women with higher than normal
risks for complications.
