Gregory v. Abou-Samra CA2/6 ( 2015 )

Filed 3/9/15 Gregory v. Abou-Samra CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 SIX
CARLY GREGORY, 2d Civil No. B253223
(Super. Ct. No. 56-2011-00405596-CU-
Plaintiff and Appellant, MM-VTA)
(Ventura County)
v.
MOUSTAPHA ABOU-SAMRA, M.D., et
al.,
Defendants and Respondents.
Carly Gregory appeals from a judgment awarding costs in favor of
Moustapha Abou-Samra, M.D., and Moustapha Abou-Samra, M.D., a professional
corporation. Appellant contends the court erred in awarding respondent expert witness
fees pursuant to Code of Civil Procedure section 9981 because respondent's offer to
compromise was neither reasonable nor made in good faith. We affirm.
Facts and Procedural History
In December 2009, appellant underwent surgery for a brain tumor. Dr.
Aria Sabit was the surgeon, and respondent, Dr. Sabit's employer, acted as assistant
surgeon. Appellant subsequently filed a complaint against Dr. Sabit, respondent, and
Community Memorial Health Care System (CMHCS) for negligence. Dr. Sabit was
1 Undesignated statutory references are to the Code of Civil Procedure.
also sued for fraud and intentional infliction of emotional distress. The complaint was
later amended to add a claim for punitive damages against Dr. Sabit, based on the
allegation he intentionally misled appellant to believe her tumor had been removed.
She also alleged that respondent knew the tumor had not been removed and failed to
provide proper follow-up treatment.
Appellant settled with Dr. Sabit for approximately $530,000, and with
CMHCS for $20,000. After these settlements, respondent served appellant with an
offer to compromise pursuant to section 998. Respondent offered to waive all
statutory costs incurred to date and all rights to sue appellant and her attorney for
malicious prosecution, in exchange for a dismissal with prejudice in favor of
respondent. Appellant allowed the offer to expire without acceptance.
Appellant continued to litigate the matter against respondent and both
parties took several depositions. On the eve of trial, appellant dismissed the action
against respondent without prejudice. Respondent filed a memorandum of costs
seeking $12,866 in expert witness fees as the prevailing party. (§§ 998, subd. (c)(1),
1032, subd. (a)(4).) Appellant moved to strike and tax costs on the ground that
respondent's offer to compromise was neither reasonable nor made in good faith.
Following a hearing, the court found respondent's section 998 offer to be
both reasonable and in good faith. Judgment was entered in respondent's favor in the
amount of $19,715, which includes the full $12,866 in claimed expert witness fees.
Discussion
Appellant contends the court erred in ordering her to pay respondent's
expert witness fees because the section 998 offer to compromise was "patently
unreasonable." She also claims the court's ruling is based on its erroneous conclusion
that respondent was not "automatically . . . liable" for Dr. Sabit's fraudulent conduct
under the doctrine of respondeat superior. We are not persuaded.
A section 998 offer must be made in good faith in order to be valid.
Good faith requires that the offer be reasonable under the circumstances of the case
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and have a reasonable chance of being accepted. (Whatley-Miller v. Cooper (2013)
212 Cal.App.4th 1103, 1112 (Whatley-Miller).) "Reasonableness generally 'is
measured, first, by determining whether the offer represents a reasonable prediction of
the amount of money, if any, defendant would have to pay plaintiff following a trial,
discounted by an appropriate factor for receipt of money by plaintiff before trial, all
premised upon information that was known or reasonably should have been known to
the defendant,' and '[i]f an experienced attorney or judge, standing in defendant's
shoes, would place the prediction within a range of reasonably possible results, the
prediction is reasonable.' [Citation.]" (Ibid.) If an offer is found to be reasonable, the
court must then determine whether "the offeree has reason to know the offer is a
reasonable one." (Id. at p. 1113, quoting Elrod v. Oregon Cummins Diesel, Inc. (1987)
195 Cal.App.3d 692, 699.)
We review the court's findings as to the validity and reasonableness of
the section 998 offer for an abuse of discretion. (Whatley-Miller, supra, 212
Cal.App.4th at p. 1113.) There was no abuse of discretion here. Appellant failed to
meet her burden of establishing the offer to compromise was unreasonable or not in
good faith. Although she claimed the dismissal was not based on the merits of the
case, the court "was not required to accept that statement at face value and could
reasonably conclude that the dismissal represented an acknowledgment of the tenuous
nature of appellant's claims against respondent." (Bates v. Presbyterian
Intercommunity Hosp., Inc. (2012) 204 Cal.App.4th 210, 221-222.) The court also
recognized that respondent's offer had substantial value to appellant because its
acceptance would have protected her against future litigation and absolved her of
responsibility for the very costs she now challenges. (Id. at p. 222.)
The trial court also acted within its discretion in finding that appellant
had reason to know respondent's offer was reasonable. Appellant received over
$500,000 in settlement proceeds and her medical bills were paid by private insurance.
(Civ. Code, § 333.1.) Moreover, her noneconomic damages were limited to $250,000.
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(Civ. Code, § 333.2.) Although she claims she had reason to believe respondent could
be found liable for Dr. Sabit's fraud under the doctrine of respondeat superior, she did
not sue respondent under this theory or name him in the causes of action for fraud and
intentional infliction of emotional distress.
In any event, the court did not err in determining that respondent would
not be "automatically liable" for Dr. Sabit's fraudulent conduct. Appellant notes "that
an employee's willful, malicious and even criminal torts may fall within the scope of
his or her employment for the purposes of respondeat superior . . . ." (Lisa M. v.
Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal.4th 291, 296-297, italics added.),
But liability in this context is not a foregone conclusion. The issue can be resolved as
a matter of law only when the relevant facts are undisputed and give rise to no
conflicting inferences. (Id. at p. 299.) The issue is ultimately whether the employee's
tortious conduct was foreseeable (ibid.), and appellant fails to show that Dr. Sabit's
allegedly fraudulent conduct was foreseeable as a matter of law. The court thus did
not abuse its discretion in concluding that the mere possibility respondent might be
held vicariously liable for Dr. Sabit's alleged fraud was insufficient to render the offer
to compromise unreasonable.
The judgment is affirmed. Respondent shall recover costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
CHANEY, J.*
* Assigned by the Chairperson of the Judicial Council.
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Rebecca Susan Riley, Judge
Superior Court County of Ventura
______________________________
Glenn J. Campbell, for Appellant.
Benjamin F. Coats, Melanie J. Ely; Engle, Carobini & Coats, fir
Respondents.
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