Abelar v. Mora CA2/3 ( 2022 )

Filed 10/25/22 Abelar v. Mora CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
DEE ANN ABELAR et al., B311451
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. BC641637
v.
JEFFREY MORA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Curtis A. Kin, Judge. Affirmed.
Gary Rand & Suzanne E. Rand-Lewis and Suzanne E.
Rand-Lewis for Plaintiffs and Appellants.
Bonne, Bridges, Mueller, O’Keefe & Nichols, Mitzie L.
Dobson and Michael K. Liu for Defendant and Respondent.
_______________________________________
INTRODUCTION
This is a medical malpractice and loss of consortium action
brought by plaintiffs and appellants Dee Ann Abelar and her
husband Brian Abelar (plaintiffs)1 against, as pertinent here,
defendant and respondent Jeffrey Mora, M.D.2 Plaintiffs appeal
from a judgment entered after summary judgment in Mora’s
favor.
Approximately six weeks after Dee Ann underwent a
craniotomy, she began experiencing neurological symptoms
including seizures. She was treated by Mora, a neurologist, as
well as several other physicians at a local hospital. Eventually,
Dee Ann was transferred to USC Keck Medical Center. There,
doctors discovered an infection. Plaintiffs contend Mora, among
others, negligently failed to diagnose and treat the infection.
Mora moved for summary judgment and supported his
motion with a declaration by an expert neurologist who opined
that Mora’s treatment met the standard of care and did not cause
or contribute to the infection. Plaintiffs opposed the motion and
supported it with a declaration by a general surgeon, Dr. Leslie
Rand-Luby. Mora moved to depose Dr. Rand-Luby concerning the
foundation for her stated opinions and the court granted the
motion. An extended law and motion battle ensued. The court
issued two orders compelling plaintiffs to produce Dr. Rand-Luby
1 Because plaintiffs have the same last name, we refer to the Abelars
by their first names in describing the facts of the case. No disrespect is
intended.
2 Although Mora is a physician, we refer to him throughout our opinion
by his last name only. We reserve the use of the honorific, “Dr. _____,”
for the medical experts. No disrespect is intended.
2
for a limited-scope deposition, but they refused to do so.
Eventually, after finding that plaintiffs and their counsel filed a
frivolous second motion for a protective order, the court imposed
an evidentiary sanction striking Dr. Rand-Luby’s declaration.
The court subsequently granted Mora’s motion for summary
judgment, entered judgment in his favor, and awarded costs
including expert witness fees.
Plaintiffs contend the court erred by ordering Dr. Rand-
Luby’s deposition, striking her declaration as an evidentiary
sanction, granting the motion for summary judgment, and
denying their motion to tax costs in part. Finding no error, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
1. General Background
Plaintiffs filed this medical malpractice action against
numerous physicians, their associated medical corporations, and
several hospitals in December 2016. As pertinent here, the
complaint states causes of action for professional negligence and
loss of consortium against Mora.3
According to the complaint, Dee Ann underwent a
craniotomy on October 6, 2015, to remove a meningioma that had
been compressing her optic nerve. She was discharged from the
hospital two days after the surgery.
3The complaint includes eight causes of action. All but two of those
were resolved in favor of Mora pursuant to a successful demurrer by
another physician defendant and a stipulation between plaintiffs and
the remaining physician defendants.
3
On November 20, 2015, Dee Ann suffered a grand mal
seizure and was briefly admitted to the emergency department at
a local hospital. Dee Ann continued to experience seizures and
other neurological symptoms and was admitted to the local
hospital on November 30, 2015. There, she was treated by several
physicians including Mora. Plaintiffs allege Mora told them that
the local hospital “did not have the specialist care or facilities
necessary to properly diagnose or treat” Dee Ann and
recommended that Brian transfer Dee Ann to another hospital.
Dee Ann remained hospitalized until she was transferred to USC
Keck Medical Center on December 11, 2015. There, doctors
performed a second craniotomy during which portions of
Dee Ann’s brain and skull were removed. An infection was
definitively diagnosed on December 19, 2015.
With respect to the professional negligence claim, plaintiffs
contend Dee Ann was suffering from an infection during the time
Mora was treating her. They allege that Mora’s failure to
diagnose and treat the infection fell below the standard of care
and that his actions caused or contributed to her injuries.
Plaintiffs also assert a claim for loss of consortium as to Dee
Ann’s husband, Brian.
2. October 2019 to January 2020: Motion for Summary
Judgment and Opposition
Mora filed a motion for summary judgment in
October 2019. With respect to the professional negligence claim,
Mora asserted plaintiffs would be unable to establish that he
breached the standard of care or that any action or inaction by
Mora caused plaintiffs’ alleged injuries. The motion was
supported by a declaration by Dr. Michael Gold, an expert in
neurology. Dr. Gold reviewed Dee Ann’s medical records and
4
opined that Mora met the standard of care at all times while
treating Dee Ann and that no act or omission by Mora caused or
contributed to her subsequently-diagnosed infection. Mora also
argued that because Dee Ann’s negligence claim failed, the loss of
consortium claim necessarily failed.
Plaintiffs opposed the motion, generally arguing that there
were triable issues of fact as to whether Dee Ann was suffering
from an infection during the time Mora was treating her.
Plaintiffs’ medical expert, Dr. Rand-Luby, is a general surgeon
and she opined that the medical records show Dee Ann was
suffering from an infection while Mora treated her and that
Mora’s failure to diagnose and treat the infection failed to meet
the standard of care. Plaintiffs also contended that Mora’s
medical expert failed to provide a medical opinion sufficient to
shift the burden of production to them.
Mora immediately served a notice of deposition of
Dr. Rand-Luby to be held on the earliest possible noticed date,
January 28, 2020.
3. January 2020: Mora’s Application to Conduct a
Limited-Scope Deposition of Plaintiffs’ Medical Expert;
Plaintiffs’ Motion for a Protective Order
On January 16, 2020, Mora filed an ex parte application
seeking to continue the motion for summary judgment. Mora
asked for the continuance and an order allowing him to depose
Dr. Rand-Luby regarding the foundation of her medical opinions
pursuant to St. Mary Medical Center v. Superior Court (1996) 50
Cal.App.4th 1531 (St. Mary).4 Mora raised numerous concerns
4The appellate court held that a party may conduct a limited-scope
deposition of an expert who submits a declaration in support of or in
5
regarding Dr. Rand-Luby’s qualification to opine on the standard
of care for a neurologist given that she is a general surgeon with
apparent specialties in breast and advanced laparoscopic
surgeries. Further, Dr. Rand-Luby stated that she had treated
“conditions” and “problems” like those suffered by Dee Ann but
was not specific about the nature of the “conditions” and
“problems” to which she referred. Mora also questioned a variety
of other statements made by Dr. Rand-Luby which appeared to
be without sufficient foundation. Plaintiffs opposed the ex parte
application on myriad grounds and requested monetary sanctions
against Mora and his counsel.
On January 17, 2020, the court granted Mora’s ex parte
request to depose Dr. Rand-Luby and continued the motion for
summary judgment. Nevertheless, on January 24, 2020, plaintiffs
served objections to Mora’s deposition notice asserting, among
other things, that the deposition was not proper under St. Mary.
And on January 28, 2020, the day of the scheduled deposition,
plaintiffs filed a motion for a protective order seeking to quash
the deposition notice for Dr. Rand-Luby, again claiming that the
deposition was not proper under St. Mary. In response, Mora filed
a motion to compel the deposition of Dr. Rand-Luby and to
specially set the date of the deposition on March 24, 2020.
The parties stipulated that both motions would be heard on
March 13, 2020.
opposition to a motion for summary judgment if there is a legitimate
question regarding the foundation of the expert’s opinion. (St. Mary,
supra, 50 Cal.App.4th at p. 1539.)
6
4. March 2020: The Court Grants Mora’s Motion to
Compel the Deposition of Dr. Rand-Luby
On March 13, 2020, the court heard arguments on the
motion to compel the deposition of Dr. Rand-Luby and the motion
for a protective order. The court issued a written ruling granting
Mora’s motion to compel. The court rejected plaintiffs’ argument
that no good cause existed to depose their expert under St. Mary
as well as their other numerous arguments. The court denied
plaintiffs’ motion for a protective order and ordered the
deposition to occur on March 24, 2020 at 10:00 a.m.
5. Mid-2020: Pandemic-Related Delays
Due to the Covid-19 pandemic, the deposition did not take
place as scheduled and the court continued the motion for
summary judgment to mid-July 2020 and then to late
October 2020. On June 30, 2020, the court ordered plaintiffs to
produce Dr. Rand-Luby for her deposition no later than
September 16, 2020. For Dr. Rand-Luby’s convenience, Mora
agreed to take her deposition on September 24, 2020.
6. September 2020: Plaintiffs’ Second Motion for
Protective Order to Prohibit Mora from Deposing
Dr. Rand-Luby
On September 22, 2020, two days before Dr. Rand-Luby’s
long-awaited deposition was scheduled to take place, plaintiffs
filed a second motion for a protective order seeking to prevent
Mora from deposing Dr. Rand-Luby. The hearing was noticed for
December 11, 2020. Plaintiffs advised Mora that Dr. Rand-Luby
would not appear for her deposition on September 24, 2020, and
she did not.
7
Plaintiffs’ motion requested the following orders from the
trial court: that Dr. Rand-Luby’s deposition last no longer than
two hours; that the scope of the deposition be limited to questions
regarding the foundation of her opinions stated in her
declaration; that the logistics of the deposition, including the
video link, details regarding exhibits, and the location of the
reporter, be provided to plaintiffs’ counsel at least seven days
prior to the deposition; that Dr. Rand-Luby not be required to
produce any documents at the deposition and that Mora would
not be permitted to adjourn the deposition in order to compel the
production of documents; and that Mora pay Dr. Rand-Luby’s
fees at least seven business days prior to the date of the
deposition. Plaintiffs also demanded an order compelling the
deposition of Mora’s medical expert, Dr. Gold.
The motion for a protective order claimed that Mora’s
“improper deposition notice falsely claims the deposition is
pursuant to St. Mary … when in actuality [he] intends to conduct
a complete expert witness deposition of Dr. Rand-Luby” in
violation of Code of Civil Procedure section 2034.410, et seq.5
Further, and with respect to the production of documents by
Dr. Rand-Luby, plaintiffs admitted that Mora agreed to “ ‘move
forward’ ” with the deposition without the production of
documents but they objected that Mora “failed and refused to
confirm that he will not adjourn the deposition and seek an order
compelling production of documents.” Plaintiffs also complained
that the logistics of the deposition, which would be held remotely,
had not been fully disclosed.
5All undesignated statutory references are to the Code of Civil
Procedure.
8
On the issue of expert witness fees, plaintiffs insisted that
Mora refused to pay Dr. Rand-Luby’s expert witness fees:
“Instead, on September 21, 2020, for the first time, and a mere
three (3) days before the scheduled deposition, defense counsel
demanded Dr. Rand-Luby provide a completed W-9 form,
including her social security number, to an unknown secretary at
defense counsel’s office before her witness fees would be paid.”
Thus, plaintiffs urged, it was Mora’s fault that the deposition
would not take place as scheduled: “Defense counsel’s refusal to
tender Dr. Rand-Luby’s fees in a timely manner, and demand
three (3) days before the scheduled deposition for a W-9 form
before those fees would be paid, leaves Dr. Rand-Luby in the
position of having to cancel surgeries on short notice which is
highly prejudicial to both Dr. Rand-Luby and to her patients.
Moreover, because the deposition was not confirmed by timely
payment of fees, Dr. Rand-Luby has surgeries and other patient
consultations scheduled such that she will have been working in
excess of twenty[-]four (24) hours straight before the deposition
commences. Defendant Mora’s failure to timely tender fees so as
to ensure that Dr. Rand-Luby could block the time for her
deposition without the potential of losing a complete day’s
earnings has caused unwarranted annoyance, oppression, and
undue burden to Dr. Rand-Luby.”6
6Mora agreed to pay Dr. Rand-Luby for two hours at a rate of $990 per
hour in advance of the deposition. The check was delivered to
plaintiffs’ counsel’s office on the morning of September 22, 2020.
9
7. September 2020: Mora’s Application to Specially Set
the Deposition of Dr. Rand-Luby and Request for
Sanctions; Order to Show Cause Regarding Sanctions
On September 30, 2020, and in response to plaintiffs’
refusal to produce Dr. Rand-Luby for her deposition as scheduled,
Mora filed an ex parte application again seeking an order
specially setting Dr. Rand-Luby’s deposition and seeking
monetary, evidentiary, and terminating sanctions under
section 2023.030. Mora asserted that counsel for the parties met
and conferred on September 21, 2020, and had resolved all of
plaintiffs’ concerns about the deposition. Yet plaintiffs filed their
motion for a protective order the next day, raising issues that had
already been agreed upon, including the payment of expert
witness fees in advance of the deposition. Mora recounted
plaintiffs’ repeated refusal to produce Dr. Rand-Luby for
deposition despite the court’s orders that they do so and
requested that the court specially set a date and time for the
deposition.
Mora also asserted that plaintiffs’ second motion for a
protective order was frivolous and made in bad faith because it
rehashed arguments that had already been rejected by the court
and raised issues that had already been settled informally by
counsel. Accordingly, Mora requested that the court sanction
plaintiffs and their counsel for misuse of the discovery process.
Plaintiffs opposed the ex parte application, arguing that
Mora’s application was “a bad faith attempt to avoid the Court’s
hearing of, and ruling on, Plaintiffs’ pending Motion for
Protective Order.” Plaintiffs reasserted the arguments presented
in their second motion for a protective order and demanded
10
monetary sanctions against Mora and his counsel “for bringing
this patently frivolous application.”
On October 1, 2020, the court heard Mora’s ex parte
application, which it granted in part. The court advanced the
hearing on plaintiffs’ second motion for a protective order to
October 23, 2020, and set an order to show cause for the same
day “as to why Plaintiff[s] and their counsel should not be
sanctioned for failure to comply with the Court’s orders of
06/30/2020 and 03/13/2020. Sanctions to be imposed may be
monetary and/or by striking the declaration[ ] of Dr. Leslie Rand-
Luby, M.D. and/or by dismissing Plaintiff[s’] claims against
[Mora].”
8. October 2020: Second Request for Protective Order
Denied; Sanctions Imposed
On October 26, 2020, the court heard argument on and
denied plaintiffs’ second motion for a protective order. In its
written order, the court recounted plaintiffs’ history of refusing to
produce Dr. Rand-Luby for deposition, notwithstanding two
orders compelling the deposition. As to the merits, the court
reviewed plaintiffs’ arguments and concluded each of them lacked
merit. For example, plaintiffs claimed that Mora intended to take
a “premature expert deposition” but no evidence before the court
supported that contention and, in any event, the court’s orders
compelling the deposition limited the permissible scope.
Regarding plaintiffs’ demands for logistical information and
payment of expert fees seven days before the deposition, the court
noted that no rule or statute required Mora to do so and, in any
event, Mora had paid for two hours of Dr. Rand-Luby’s time two
days prior to the deposition. The court also rejected plaintiffs’
unilateral demand to limit the deposition to two hours as without
11
any legal basis. And, the court noted, several of plaintiffs’
arguments had been resolved prior to their filing of the second
motion for a protective order. Accordingly, the court not only
denied the motion but concluded it was “entirely frivolous.”
“Indeed, the timing of the motion and the unmeritorious positions
asserted therein lead to but one conclusion—that plaintiffs made
the motion in bad faith and as subterfuge for their apparent
strategic decision to avoid the court-ordered deposition of
Dr. Rand-Luby.”
The court also imposed monetary and evidentiary
sanctions. The court acknowledged that the Covid-19 pandemic
and Dr. Rand-Luby’s “noble service as a healthcare professional
during these uncertain times” had required some delay in the
taking of her deposition. But Mora had been more than
accommodating in that regard, “only to be met by plaintiffs’ delay
and unsupported excuses for avoiding the court-ordered
deposition, culminating in the instant bad-faith motion for a
protective order. Indeed, even after the Court issued its Order to
Show Cause on October 1, 2020, plaintiffs persisted in their
unsupported position regarding the conditions under which they
would produce Dr. Rand-Luby, which, in context, the Court views
as plaintiffs[’] attempt to appear as if attempting to comply with
this Court’s orders, as opposed to making a genuine, good faith
effort to be in compliance.” Accordingly, the court found that
plaintiffs failed to show cause why “an appropriately tailored
evidence sanction” should not be imposed. Due to plaintiffs’
refusal to produce Dr. Rand-Luby for deposition and their bad
faith in bringing the second motion for a protective order, the
court struck the declaration of Dr. Rand-Luby submitted in
opposition to Mora’s motion for summary judgment. The court
12
also imposed a monetary sanction of $1,600, jointly and severally
against plaintiffs and their counsel.
9. Summary Judgment
On November 20, 2020, the court heard argument on and
granted Mora’s motion for summary judgment. Specifically, the
court found that the declaration of Dr. Gold, who was a qualified
expert, established that Mora had no reason to suspect that
Dee Ann was suffering from an infection while she was under his
care. According to Dr. Gold, Mora ordered the proper laboratory
and imaging studies and prescribed appropriate medication to
treat Dee Ann’s seizures. And in light of the clinical evidence,
Mora had no reason to suspect the presence of an infection.
Accordingly, the court found that Mora’s evidence shifted the
burden to plaintiffs to show the existence of a triable issue of
material fact. But because the court struck Dr. Rand-Luby’s
declaration as an evidentiary sanction, plaintiffs failed to provide
admissible expert testimony in opposition to Mora’s motion. The
court concluded plaintiffs failed to show the existence of triable
issues of material fact as to the medical negligence claim. And
because that claim failed, Brian’s loss of consortium claim also
failed as a matter of law.
10. Judgment for Mora; Appeal
The court entered judgment in favor of Mora on
December 15, 2020, including an award of costs “in such sum as
is reflected in Defendant’s cost memorandum.” Plaintiffs timely
appealed from the judgment.
13
11. Cost Award
Mora filed his cost memorandum seeking costs of
$13,978.63, including expert witness fees of $8,637.33. Plaintiffs
moved to tax most of the items in Mora’s cost bill, arguing
variously that the costs were not allowed, were unreasonably
high, or were not necessary to the litigation. As to the expert
witness fees claimed as costs under section 998, plaintiffs
asserted that Mora failed to provide a copy of a written
settlement offer in support of his cost memorandum and was
therefore not entitled to recover expert witness fees. Without
conceding that they had received settlement offers in the first
instance, plaintiffs also urged that any settlement offers were
premature, unreasonable, and in bad faith. In reply, Mora
explained that he had attempted to settle with each of the
plaintiffs in May 2019 by offering to waive costs in exchange for a
dismissal with prejudice. Mora also conceded that several items
listed on the cost memorandum were not recoverable and
withdrew his request for costs as to those items.
The court granted the motion to tax costs in part,
eliminating costs of $420 (concededly already paid by plaintiffs),
$60 (a filing fee not necessary to the litigation), and $15 (an item
for which Mora lacked a receipt.) The court eliminated another
$630 in costs, concluding those costs were also not necessary to
the litigation. The court awarded the remaining cost items and
entered an amended judgment to that effect.
DISCUSSION
Plaintiffs make the following arguments: (1) the court
abused its discretion by ordering a deposition of plaintiffs’
medical expert, Dr. Rand-Luby; (2) the court further abused its
14
discretion by striking the declaration of Dr. Rand-Luby as an
evidentiary sanction; (3) the court erred by granting Mora’s
motion for summary judgment; (4) the court also erred by
awarding certain items included in Mora’s cost bill. We address
these issues in turn.
1. Appealability
As an initial matter, we address Mora’s assertion that
several of plaintiffs’ arguments are not properly before us. As
Mora notes, the notice of appeal states only that plaintiffs appeal
from a December 15, 2020 judgment after an order granting
summary judgment. More to the point, according to Mora, the
notice of appeal does not list the other orders plaintiffs challenge
here: the court’s orders regarding Dr. Rand-Luby’s deposition and
the postjudgment order fixing the amount of Mora’s costs. Mora
urges us to construe the notice of appeal in a manner that limits
our review to the propriety of the court’s order granting Mora’s
motion for summary judgment. We decline to do so.
It is well-established that most discovery-related orders,
such as the orders at issue here, are not directly appealable and
may be challenged on appeal from the final judgment. (See, e.g.,
O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC
(2019) 42 Cal.App.5th 546, 561 [“Discovery orders are not directly
appealable, and even writ review of such orders is limited;
instead, they are generally challenged by appeal from the final
judgment.”]; Nickell v. Matlock (2012) 206 Cal.App.4th 934, 940
[“An order granting terminating sanctions is not appealable, and
the losing party must await the entry of the order of dismissal or
judgment unless the terminating order is inextricably
intertwined with another, appealable order.”]; Doe v. United
States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1432 [“There
15
is no statutory provision for appeal from an order compelling
compliance with a discovery order.”].) Accordingly, plaintiffs’
challenges to the court’s orders requiring the deposition of
Dr. Rand-Luby, denying their motions for a protective order, and
imposing evidentiary sanctions are proper.
Further, where, as here, “a judgment awards costs and fees
to a prevailing party and provides for the later determination of
the amounts, the notice of appeal subsumes any later order
setting the amounts of the award.” (Grant v. List & Lathrop
(1992) 2 Cal.App.4th 993, 998; DeZerega v. Meggs (2000) 83
Cal.App.4th 28, 44; and see Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs (The Rutter Group 2022) ¶ 2:156.2
[“Where a judgment awards unspecified costs and attorney fees
and provides for later determination of the amount, the failure to
file a separate appeal from the subsequent order fixing the
amount of costs and fees does not preclude review of the order on
appeal from the underlying judgment.”], italics omitted.) A
separate appeal from the order setting the amount of the costs is
permitted, but not required.
2. The court did not abuse its discretion by ordering a
limited-scope deposition of plaintiffs’ medical expert,
Dr. Rand-Luby.
2.1. Standard of Review
We review the order granting Mora’s request to take the
deposition of Dr. Rand-Luby for an abuse of discretion. (St. Mary,
supra, 50 Cal.App.4th at p. 1540 [“Whether to grant discovery in
a given case falls within the sound discretion of the trial court
based upon all of the facts presented.”].) The same standard of
review applies to the denial of a motion for a protective order.
(See People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539,
16
1552 [stating standard of review for the denial of a discovery-
related protective order is abuse of discretion].) “ ‘ “Management
of discovery lies within the sound discretion of the trial court.
Consequently, appellate review of discovery rulings is governed
by the abuse of discretion standard. [Citation.] Where there is a
basis for the trial court’s ruling and the evidence supports it, a
reviewing court will not substitute its opinion for that of the trial
court. [Citation.]” [Citation.] The trial court’s determination will
be set aside only when it has been established that there was no
legal justification for the order granting or denying the discovery
in question.’ ” (O&C Creditors Group, LLC v. Stephens &
Stephens XII, LLC, supra, 42 Cal.App.5th at p. 561.)
2.2. Legal Principles
To determine whether the court abused its discretion by
allowing Mora to depose Dr. Rand-Luby, we look to St. Mary,
supra, 50 Cal.App.4th 1531. In that case, as here, the defendant
moved for summary judgment and the plaintiff responded by
producing the declaration of a medical expert who had not been
previously identified as an expert. (Id. at pp. 1534–1535.) When
the defendant attempted to take its motion off calendar and
depose the expert, the plaintiff objected, arguing the expert could
not be deposed until the parties exchanged expert witness lists
pursuant to former section 2034. (St. Mary, at p. 1535; § 2034
was repealed by Stats. 2004, ch. 182, § 22, operative July 1, 2005;
see now § 2034.010 et seq., added by Stats. 2004, ch. 182, § 23.)
The trial court denied the continuance and the appellate court
reversed, stating that “under the proper circumstances, the
parties should be allowed to depose an expert who supplies a
declaration or affidavit in support of or in opposition to summary
judgment or summary adjudication where there is a legitimate
17
question regarding the foundation of the opinion of the expert.”
(St. Mary, at pp. 1537, 1540.)
The court reasoned that permitting limited discovery by the
moving party will, in some circumstances, further the purpose of
the summary judgment procedure, which is to dispose of actions
that present no triable issues of material fact while avoiding
mini-trials on the merits of those issues. (St. Mary, supra, 50
Cal.App.4th at pp. 1538, 1540.) Section 437c, subdivision (h),
provides for continuances to allow further discovery by the
opposing party, but there is no comparable provision for the
moving party. (St. Mary, at pp. 1538–1539.) The moving party
may generally depose witnesses before it decides to file a
summary judgment motion, but it lacks that opportunity when
the witness is an expert and there has not yet been a designation
of experts under former section 2034. (St. Mary, at p. 1539.) To
further the purpose of the summary judgment procedure, the
court held, the trial court has discretion to allow additional
discovery where there are “objective facts presented which create
a significant question regarding the validity of the affidavit or
declaration which, if successfully pursued, will impeach the
foundational basis of the affidavit or declaration in question.” (Id.
at pp. 1540–1541.)
2.3. Analysis
The court did not abuse its discretion in finding that there
were sufficient questions about the bases for Dr. Rand-Luby’s
opinions to bring this case within the rule of St. Mary, supra,
50 Cal.App.4th 1531. First, in setting forth her qualifications as
an expert, Dr. Rand-Luby asserts that she treats patients with
“conditions such as those suffered by Plaintiff” and “review[s]
patient and hospital records concerning problems such as
18
Plaintiff’s.” It is unclear from this description which of Dee Ann’s
various “problems” and “conditions” Dr. Rand-Luby has ever
treated. Her curriculum vitae, which is referenced in her
declaration and attached thereto, indicates that Dr. Rand-Luby is
a general surgeon with particular experience in breast and
advanced laparoscopic surgery. Thus it is not obvious to what
extent Dr. Rand-Luby’s professional experience provides a
foundation for her opinions about the qualifications of Mora’s
medical expert neurologist to render his opinions in this case, the
purported absence of Mora’s qualifications to treat Dee Ann in
the first instance, and her opinion that Mora failed to meet the
standard of care for a neurologist.
Second, Dr. Rand-Luby identified the foundation for her
opinions in very general terms, citing voluminous medical
records, laboratory test results, medical literature, and
consultations with Infectious Disease Department physicians.
But as to her specific opinions, she fails to identify the foundation
for such statements as “[t]he medical record is purposefully
misstated,” Dee Ann’s “symptoms were due to a long term
infection as noted in her USC tests and records,” and “there were
lab reports, CT and MRI reports which were not normal, this is
clearly set forth in the reports, which indicated the presence of a
post surgical infection.” Typically, an expert medical opinion
would include, for example, details such as the date of a
particular laboratory test result and explain why the specific
indicators support the expert’s opinion. Dr. Rand-Luby, however,
offered only broad, conclusory statements. She also gave
sweeping opinions such as “Defendant MORA was not qualified
to treat Plaintiff’s condition and lacked the experience to do so,”
19
without identifying any evidence that could form the basis of
such an opinion.
These vagaries, and others, lead us to conclude that the
court did not abuse its discretion in ordering a limited-scope
deposition of Dr. Rand-Luby to allow Mora to inquire about the
foundation of her opinions.
3. The court did not abuse its discretion by excluding
Dr. Rand-Luby’s declaration as an evidentiary
sanction.
3.1. Standard of Review
“We review the trial court’s imposition of discovery
sanctions for an abuse of discretion. (Stephen Slesinger, Inc. v.
Walt Disney Co. (2007) 155 Cal.App.4th 736, 765; accord, Britts v.
Superior Court (2006) 145 Cal.App.4th 1112, 1123 [abuse of
discretion standard of review applies ‘to review of an order
imposing discovery sanctions for discovery misuse’ unless ‘the
propriety of a discovery order turns on statutory interpretation’].)
‘We view the entire record in the light most favorable to the
court’s ruling, and draw all reasonable inferences in support of it.
[Citation.] … The trial court’s decision will be reversed only “for
manifest abuse exceeding the bounds of reason.” ’ (Slesinger, at
p. 765; accord, Los Defensores, Inc. v. Gomez [(2014)] 223
Cal.App.4th [377], 390 [‘ “ ‘The power to impose discovery
sanctions is a broad discretion subject to reversal only for
arbitrary, capricious, or whimsical action.’ ” ’].)” (Sabetian v.
Exxon Mobil Corp. (2020) 57 Cal.App.5th 1054, 1084.)
3.2. Legal Principles
Section 2023.030 authorizes a trial court to impose a range
of penalties against “any party engaging in the misuse of the
20
discovery process,” including monetary and evidence sanctions.
(Id., subds. (a), (c)). As pertinent here, section 2023.010 provides
that misuse of the discovery process includes “[f]ailing to respond
or to submit to an authorized method of discovery” (id., subd. (d)),
“[m]aking, without substantial justification, an unmeritorious
objection to discovery” (id., subd. (e)), “[d]isobeying a court order
to provide discovery” (id., subd. (g)), and “[m]aking or opposing,
unsuccessfully and without substantial justification, a motion to
compel or to limit discovery (id., subd. (h)). Evidentiary sanctions
may be imposed only after a motion to compel has been made and
granted and the party to be sanctioned has failed to comply with
that order. (§ 2025.450, subd. (h).)
Concerning the proper scope of the sanction imposed, we
note that “[d]iscovery sanctions must be tailored in order to
remedy the offending party’s discovery abuse, should not give the
aggrieved party more than what it is entitled to, and should not
be used to punish the offending party.” (Karlsson v. Ford Motor
Co. (2006) 140 Cal.App.4th 1202, 1217.)
3.3. Analysis
As described in detail ante, plaintiffs repeatedly misused
the discovery process by refusing to produce Dr. Rand-Luby for a
court-ordered deposition. The court issued at least two orders
compelling her appearance, both of which plaintiffs refused to
obey. And plaintiffs’ second motion for a protective order was, in
the court’s words, “entirely frivolous.” Thus, the statutory
requirements for the imposition of an evidentiary sanction—
misuse of the discovery process, granting of a motion to compel
discovery, and violation of the court’s resulting order—have been
met.
21
Plaintiffs equate the evidentiary sanction to a terminating
sanction and argue that the court erred in imposing that sanction
because the court did not make the necessary findings, i.e., that
plaintiffs willfully violated the court’s discovery orders and acted
without substantial justification, nor did the court impose a less
severe sanction before imposing a terminating sanction, as is
required. These arguments are misdirected because the court did
not issue a terminating sanction. A terminating sanction consists
of “(1) An order striking out the pleadings or parts of the
pleadings of any party engaging in the misuse of the discovery
process. [¶] (2) An order staying further proceedings by that
party until an order for discovery is obeyed. [¶] (3) An order
dismissing the action, or any part of the action, of that party. [¶]
(4) An order rendering a judgment by default against that party.”
(§ 2023.030, subd. (d).) It is clear from the record that the court
issued an evidentiary sanction, not a terminating sanction. The
court did not, for example, strike plaintiffs’ complaint or dismiss
their action against Mora. The court did not even go so far as to
strike plaintiffs’ opposition to the motion for summary judgment
in its entirety. Instead, it issued an evidentiary sanction striking
Dr. Rand-Luby’s declaration, which was narrowly tailored to
address the dilatory conduct by plaintiffs and their counsel in
obstructing her court-ordered deposition.
The fact that the sanction substantially impaired plaintiffs’
ability to oppose Mora’s summary judgment does not render the
court’s decision an abuse of discretion. “Absent some unusual
extenuating circumstances not present here, the appropriate
sanction when a party repeatedly and willfully fails to provide
certain evidence to the opposing party as required by the
discovery rules is preclusion of that evidence from the trial—even
22
if such a sanction proves determinative in terminating plaintiff’s
case. [Citation.] ‘The ratio decidendi behind such cases,’ a court
has stated, is ‘that a persistent refusal to comply with an order
for the production of evidence is tantamount to an admission that
the disobedient party really has no meritorious claim … .’
[Citation.]” (Juarez v. Boys Scouts of America, Inc. (2000) 81
Cal.App.4th 377, 390, disapproved on an unrelated point by
Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 222, fn. 9.)
Plaintiffs’ only other argument is that Mora failed to
establish adequate grounds to conduct an expert deposition under
the doctrine stated in St. Mary, supra. But as we have said, the
court did not abuse its discretion in ordering the deposition.
4. The court properly granted Mora’s motion for
summary judgment.
4.1. Standard of Review
The standard of review is well established. “The purpose of
the law of summary judgment is to provide courts with a
mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) The moving party
“bears the burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a matter of
law.” (Id. at p. 850; § 437c, subd. (c).) The pleadings determine
the issues to be addressed by a summary judgment motion.
(Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885,
reversed on other grounds by Metromedia, Inc. v. City of San
Diego (1981) 453 U.S. 490; Nieto v. Blue Shield of California
Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)
23
On appeal from a summary judgment, we review the record
de novo and independently determine whether triable issues of
material fact exist. (Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334.) We resolve any evidentiary doubts or ambiguities in
favor of the party opposing summary judgment. (Saelzler, at
p. 768.) “In performing an independent review of the granting of
summary judgment, we conduct the same procedure employed by
the trial court. We examine (1) the pleadings to determine the
elements of the claim, (2) the motion to determine if it establishes
facts justifying judgment in the moving party’s favor, and (3) the
opposition—assuming movant has met its initial burden—to
‘decide whether the opposing party has demonstrated the
existence of a triable, material fact issue.’ ” (Oakland Raiders v.
National Football League (2005) 131 Cal.App.4th 621, 630.) “We
need not defer to the trial court and are not bound by the reasons
in its summary judgment ruling; we review the ruling of the trial
court, not its rationale.” (Ibid.)
The appellant has the burden to show error, even if the
appellant did not bear the burden in the trial court, and “ ‘to
point out the triable issues the appellant claims are present by
citation to the record and any supporting authority.’ ” (Claudio v.
Regents of the University of California (2005) 134 Cal.App.4th
224, 230.) Further, “an appellant must present argument and
authorities on each point to which error is asserted or else the
issue is waived.” (Kurinij v. Hanna & Morton (1997) 55
Cal.App.4th 853, 867.) Matters not properly raised or that lack
adequate legal discussion will be deemed forfeited. (Keyes v.
Bowen (2010) 189 Cal.App.4th 647, 655–656.)
24
4.2. Legal Principles Regarding Professional
Negligence
As the party with the ultimate burden at trial, plaintiffs
would be required to establish medical negligence by proving
“(1) a duty to use such skill, prudence, and diligence as other
members of the profession commonly possess and exercise; (2) a
breach of the duty; (3) a proximate causal connection between the
negligent conduct and the injury; and (4) resulting loss or
damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297,
305.)
With respect to the first element, the standard of care for
medical professionals requires “ ‘ “that a physician or surgeon
have the degree of learning and skill ordinarily possessed by
practitioners of the medical profession in the same locality and
that he [or she] exercise ordinary care in applying such learning
and skill to the treatment of [the] patient.” [Citation.]’ ”
(Flowers v. Torrance Memorial Hospital Medical Center (1994)
8 Cal.4th 992, 998, final brackets added; see also Brown v. Colm
(1974) 11 Cal.3d 639, 642–643 [noting “a doctor is required to
apply that degree of skill, knowledge and care ordinarily
exercised by other members of his profession under similar
circumstances”]; McAlpine v. Norman (2020) 51 Cal.App.5th 933,
938 [same].) “Proof of this standard is ordinarily provided by
another physician, and if a witness has disclosed sufficient
knowledge of the subject to entitle his opinion to go to the jury,
the question of the degree of his [or her] knowledge goes to the
weight of [the] testimony rather than to its admissibility.”
(Brown, at p. 643; In re Roberto C. (2012) 209 Cal.App.4th 1241,
1249.) Thus, the standard of care can ordinarily be proved only by
expert testimony, “ ‘unless the conduct required by the particular
25
circumstances is within the common knowledge of the layman.’
[Citations.]” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)
Proof of causation may also require expert testimony
“[w]here the complexity of the causation issue is beyond common
experience.” (Garbell v. Conejo Hardwoods, Inc. (2011) 193
Cal.App.4th 1563, 1569; accord, Webster v. Claremont Yoga
(2018) 26 Cal.App.5th 284, 290.) In a summary judgment
proceeding, an expert’s opinions may be rejected if they are
conclusory, speculative, without foundation, or stated without
sufficient certainty. (Sanchez v. Kern Emergency Medical
Transportation Corp. (2017) 8 Cal.App.5th 146, 155–156
(Sanchez).)
4.3. Analysis
4.3.1. Plaintiffs’ Complaint
As noted, we first consider the allegations of plaintiffs’
complaint to determine the scope of the issues. With respect to
the professional negligence claim, plaintiffs contend Dee Ann was
suffering from an infection during the time Mora was treating
her and that Mora’s failure to diagnose and treat the infection fell
below the standard of care and caused or contributed to her
injuries. These allegations sufficiently state a claim for
professional negligence.
4.3.2. Mora’s Evidence
As the moving party, Mora had the initial burden to show
that plaintiffs’ claims have no merit—that is, that one or more
elements of the cause of action cannot be established, or that
there is a complete defense to that cause of action. (§ 437c,
subd. (o); see Jones v. Wachovia Bank (2014) 230 Cal.App.4th
935, 945.) “If a defendant’s moving papers make a prima facie
26
showing that justifies a judgment in its favor, the burden of
production shifts to the plaintiff to make a prima facie showing of
the existence of a triable issue of material fact.” (Jones, at p. 945;
Professional Collection Consultants v. Lauron (2017) 8
Cal.App.5th 958, 965.)
Mora’s motion for summary judgment addressed two
elements of plaintiffs’ negligence claim: standard of care and
causation. As to the standard of care, Mora’s expert neurologist,
Dr. Gold, opined to a reasonable degree of medical certainty that
Mora’s treatment of Dee Ann met the standard of care.
Specifically, Dr. Gold noted that Mora first consulted on
Dee Ann’s case on November 30, 2015, upon her second
admission to a local hospital. At that time, Mora noted Dee Ann’s
prior surgery and post-surgical breakthrough seizures. Mora’s
differential diagnoses included stroke and Todd’s paralysis (focal
weakness following seizure.) None of Dee Ann’s laboratory results
or vital signs indicated the presence of an infection and her neck
was supple, indicating no meningitis or infection of the lining of
the brain. According to Dr. Gold, Mora ordered appropriate lab
tests, medications to treat the seizures, and an MRI. The MRI
performed on November 30, 2015, showed no evidence of an acute
stroke or concerning signs of an infection. The imaging did show
fluid collection near the surgical site, consistent with her
postsurgical imaging study.
Mora continued to consult on Dee Ann’s case and saw her
daily until December 4, 2015. Some of Dee Ann’s focal weakness
had resolved by December 1, 2015, consistent with Mora’s
diagnosis of Todd’s paralysis. Her white blood cell count and vital
signs did not suggest an infection and her neck remained supple,
i.e., not suggestive of an infection. Mora continued to treat
27
Dee Ann’s seizures appropriately by ordering MRI and EEG
studies as needed and adjusting or changing her antiseizure
medications. According to Dr. Gold, a subsequent MRI performed
on December 2, 2015 did not indicate the presence of an infection,
nor did her vital signs or lab results.
Mora resumed his care and treatment of Dee Ann on
December 7, 2015. Her vital signs and white blood count were
normal and her neck was supple through December 10, 2015.
Mora ordered another EEG which showed that Dee Ann’s brain
was irritated from the craniotomy and experiencing epileptiform
changes. He continued to adjust her medication to address her
ongoing seizure activity. Mora spoke to a colleague at USC Keck
Medical Center and planned to transfer Dee Ann there because
her symptoms were not resolving and that hospital had a
dedicated specialty epilepsy team.
When Dee Ann arrived at USC, her neurological team was
not initially concerned about infection as the possible cause of
Dee Ann’s condition, and they did not perform a lumbar puncture
to evaluate the possibility of infection. According to the medical
records, Dee Ann’s treating physicians at USC did not consider
infection until December 16, 2015. And even after a repeat
craniotomy performed at USC revealed the presence of an
infection, Dee Ann continued to have seizure activity that was
not adequately controlled by medication.
In light of these facts, Dr. Gold concluded that Mora met
the standard of care by properly assessing and diagnosing
Dee Ann’s condition relating to postsurgical seizures, ordering
appropriate tests and prescribing anti-seizure medication,
monitoring her brain activity, and modifying her medications as
her condition changed. In sum, according to Dr. Gold, Dee Ann
28
did not exhibit any clinical signs of an infection prior to her
transfer to USC Keck Medical Center and her symptoms were
likely caused by brain irritation resulting from her craniotomy in
October 2015.
As to causation, Dr. Gold also opined to a reasonable degree
of medical certainty that nothing Mora did or did not do caused or
contributed to Dee Ann’s injuries. She suffered from seizures
prior to, during, and after Mora’s care and treatment and, to a
reasonable medical probability, Dee Ann would have needed the
same surgery and anti-epilepsy treatment at USC whether she
did or did not have an infection while under Mora’s care.
We agree with the court that Mora provided sufficient
evidence to meet his initial burden of production with respect to
the standard of care and causation regarding the professional
negligence claim. And as we explain, plaintiffs’ arguments to the
contrary are unavailing.
Plaintiffs’ main contention is that Mora failed to produce
sufficient evidence to shift the burden of proof to them. For
example, plaintiffs assert that Mora’s separate statement did not
“provide a proper basis for his request for summary judgment,
and the Trial Court committed reversible error by allowing the
motion to go forward when [Mora] clearly had not provided a
competent statement of facts to support adjudication of the issues
presented. Moreover, the separate statement was based upon the
conclusory Declaration of Michael Gold, M.D.” In a similar vein,
plaintiffs suggest that “[t]he separate statement was not
supported by competent evidence, but rather, by a self-serving
Declaration consisting of hearsay and conclusions of law, which
was patently insufficient to satisfy the evidentiary requirements
of CCP § 437c, and shift the burden of proof to [plaintiffs].”
29
Plaintiffs also claim that Mora’s separate statement was
“conclusory and defective” as it “did not sufficiently state facts
which would allow the Trial Court to render judgment on the
allegations of the Complaint[ ] and contained only conclusions.
The majority of the facts are legal opinions and conclusions as to
ultimate facts. The separate statement should have been stricken
as it does not comply with [section] 437c, [subdivision] (b).”
In asserting that Mora’s motion for summary judgment was
not supported by sufficient evidence, plaintiffs make only broad
assertions that the evidence was incompetent, without any
analysis of the evidence submitted by Mora. As discussed ante,
however, Mora submitted a detailed declaration by an expert in
neurology describing the clinical findings Mora made, his
diagnoses of Todd’s paralysis, the tests Mora ordered and the
results they produced, as well as his monitoring of Dee Ann’s
condition and adjustment of anti-seizure medications. The
expert’s conclusions that Mora met the standard of care and did
not cause or contribute to Dee Ann’s injuries are well supported.7
To show that such evidence failed to shift the burden to them,
plaintiffs needed to do more than make bare assertions that the
supporting evidence was incompetent. Instead, they were
required to demonstrate through reasoned argument and
7 Citing Kelly v. Trunk (1998) 66 Cal.App.4th 519, plaintiffs argue that
“an expert’s bare conclusion is insufficient to support summary
judgment, just as it would be insufficient at trial.” Indeed, that court
stated that “an opinion unsupported by reasons or explanations does
not establish the absence of a material fact issue for trial, as required
for summary judgment.” (Id. at p. 524.) This case is inapplicable with
respect to Mora’s expert, Dr. Gold, because he disclosed the materials
relied upon as well as the factual bases and reasons for his opinions.
30
citations to relevant evidence and legal authority why the
evidence was incompetent. (See Dietz v. Meisenheimer & Herron
(2009) 177 Cal.App.4th 771, 799 (Dietz) [noting that if an
appellant fails to support a claim with reasoned argument and
citations to authority we may treat that claim as waived].)
Plaintiffs utterly fail to do so.
Plaintiffs also contend the court erred by granting the
motion for summary judgment because Mora “failed to show that
[plaintiffs] could not establish each element of their prima facie
case for Professional Negligence – Medical Malpractice by
Physician.” But Mora was not required to disprove each element
of plaintiffs’ negligence claim. It was sufficient to demonstrate
that plaintiffs would be unable to establish one element of their
claim. (§ 437c, subds. (o)(1) [“A cause of action has no merit if …
[¶] [o]ne or more of the elements of the cause of action cannot be
separately established … .”] & (p)(2) [“A defendant or cross-
defendant has met his or her burden of showing that a cause of
action has no merit if the party has shown that one or more
elements of the cause of action, even if not separately pleaded,
cannot be established … .”].)
Finally, plaintiffs argue that Mora’s separate statement
violated a rule of court and therefore his motion did not shift the
burden to them. We reject this argument because plaintiffs
provide no analysis of the facts and cite no applicable legal
authority supporting their position. (See Dietz, supra, 177
Cal.App.4th at p. 799.)
4.3.3. Plaintiffs’ Opposition
As noted, the only medical expert testimony supporting
plaintiffs’ opposition to Mora’s motion for summary judgment was
the declaration of Dr. Rand-Luby, which was stricken by the
31
court as an evidentiary sanction. The absence of a medical expert
opinion in support of plaintiffs’ opposition is fatal.
“ ‘Whenever the plaintiff claims negligence in the medical
context, the plaintiff must present evidence from an expert that
the defendant breached his or her duty to the plaintiff and that
the breach caused the injury to the plaintiff.’ [Citation] ‘ “ ‘When
a defendant moves for summary judgment and supports his
motion with expert declarations that his conduct fell within the
community standard of care, he is entitled to summary judgment
unless the plaintiff comes forward with conflicting expert
evidence.’ ” ’ [Citation.]” (Sanchez, supra, 8 Cal.App.5th at
p. 153.) Because Mora satisfied his initial burden and plaintiffs
failed to submit any opposing medical expert evidence, Mora was
entitled to summary judgment as a matter of law.
Plaintiffs’ only response on this point is that Dr. Rand-
Luby’s declaration creates triable issues of material fact and the
court erred by striking it. As we have already explained, however,
the court’s imposition of the evidentiary sanction was sound.
4.3.4. Because the negligence cause of action fails, the
loss of consortium claim also fails.
It is well-settled that “an unsuccessful personal injury suit
by the physically injured spouse acts as an estoppel that bars the
spouse who would claim damages for loss of consortium.”
(Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1034–1035; see
also Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1315–
1316; Haning et al., Cal. Practice Guide: Personal Injury,
¶ 3:2413.) Because we conclude plaintiffs’ negligence cause of
action fails, we must also conclude the cause of action for loss of
consortium fails.
32
5. The court did not abuse its discretion by awarding
Mora ex parte application fees and expert witness fees
as costs under section 998.
5.1. Standard of Review
Generally, the prevailing party in civil litigation has the
right to recover costs enumerated by statute and other costs
reasonably necessary to the litigation and reasonable in amount.
(§§ 1032, 1033.5.) “ ‘Whether a cost item was reasonably
necessary to the litigation presents a question of fact for the trial
court and its decision is reviewed for abuse of discretion.
[Citation.] However, because the right to costs is governed
strictly by statute [citation] a court has no discretion to award
costs not statutorily authorized. [Citations.]’ [Citation.] Whether
a cost is statutorily authorized is a question of law we review de
novo. [Citation.]” (Naser v. Lakeridge Athletic Club (2014) 227
Cal.App.4th 571, 575–576.)
5.2. Plaintiffs’ Arguments
5.2.1. Striking the Cost Memorandum
Plaintiffs argue the court erred by refusing to strike Mora’s
cost memorandum in its entirety. As we understand their cursory
argument, plaintiffs asked the court to strike the cost
memorandum because it claimed $420 in costs that had
previously been awarded to Mora as a sanction and had already
been paid by plaintiffs.8 Because the cost memorandum included
this item, plaintiffs claim the memorandum was “patently false,
and the Trial Court should have stricken it in its entirety.”
8Mora acknowledged the issue and withdrew the request for costs that
had already been paid.
33
Plaintiffs cite California Rules of Court, rule 3.1700, which
provides that a cost memorandum must be verified by a party,
attorney, or agent, stating 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).) Of
course, the cost memorandum was verified.
Plaintiffs’ only cited authority makes no provision for the
remedy they seek. And as they have provided no other relevant
authority or discernable legal argument, we reject their
argument without further discussion. (See Dietz, supra, 177
Cal.App.4th at p. 799.)
5.2.2. Ex Parte Application Filing Fees
Plaintiffs also contend the court abused its discretion by
awarding Mora filing fees relating to multiple ex parte
applications to continue his motion for summary judgment.
Plaintiffs assert that the ex parte applications were not
reasonably necessary to the litigation because plaintiffs had
previously stipulated to continuances on four occasions.
Mora’s cost memorandum includes filing fees relating to
three ex parte applications, each of which appears to request a
continuance of the motion for summary judgment. In two of those
applications, however, Mora not only sought a continuance but
also requested an order compelling plaintiffs to produce
Dr. Rand-Luby for deposition. The court concluded it was
reasonable for Mora to seek relief by ex parte application due to
“plaintiffs’ intransigence in refusing to allow the deposition of
their expert, Dr. Leslie Rand-Luby[.]” In light of the degree to
which plaintiffs and their counsel flouted their discovery
obligations, we see no abuse of discretion in the court’s ruling.
And as to the remaining ex parte application, plaintiffs have not
34
included the application in the record on appeal. They have
therefore forfeited the issue by failing to provide a sufficient
record for review (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295
[failure to provide an adequate record requires that the issue be
resolved against the appellant].)
5.2.3. Expert Fees as Costs under Section 998
Finally, plaintiffs challenge the court’s award of expert
witness fees under section 998.
On May 13, 2019, Mora made written offers to settle with
each of the plaintiffs individually for a waiver of costs (including
sanctions) in exchange for a dismissal with prejudice. Plaintiffs
refused the offers. In his cost memorandum, Mora sought expert
witness fees of $8,637.33 as costs under section 998.
Recoverable costs do not typically include the fees of expert
witnesses not ordered by the court. (§§ 1032, 1033.5, subd. (b)(1).)
But those fees are recoverable as costs where, as here, a more
favorable judgment for the defendant follows a plaintiff’s
rejection of a valid pretrial section 998 settlement offer. As
relevant here, section 998 provides: “(c)(1) If an offer made by a
defendant is not accepted and the plaintiff fails to obtain a more
favorable judgment or award … in any action or proceeding …,
the court or arbitrator, in its discretion, may require the plaintiff
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 defendant.”
Plaintiffs challenge the award of expert fees as costs on two
grounds. First, plaintiffs argue that Mora is not entitled to expert
witness fees under section 998 because he did not attach copies of
35
his written settlement offers to his cost memorandum. Plaintiffs
are wrong. As noted ante, 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).) The verification provides prima facie evidence
that the costs were reasonably incurred. Supporting
documentation must be submitted only if costs have been put in
issue by a motion to tax costs. (See Jones v. Dumrichob (1998) 63
Cal.App.4th 1258, 1265, 1267.) Mora submitted copies of the
settlement offers to the court at the appropriate time, i.e., with
his opposition to plaintiffs’ motion to tax costs, which put the
expert witness fees at issue.9
Second, plaintiffs contend that Mora’s settlement offers
were so premature and unreasonably low as to be invalid. As
plaintiffs correctly note, “[t]o be valid, a section 998 offer must be
made in good faith, which requires that the offer of settlement be
9Citing Behr v. Redmond (2011) 193 Cal.App.4th 517, plaintiffs claim
Mora “was required to provide the Trial Court with evidence of a
written offer to compromise, within the time permitted to file his
memorandum of costs, in order for the Trial Court to be able to make a
determination as to whether expert fees can be recovered.” The case
does not so hold. Although it is somewhat unclear from the opinion, it
appears the prevailing party sought to recover expert witness fees
under section 998. The opposing party challenged that ite m in a
motion to tax costs but the court denied the motion. On appeal, the
prevailing party conceded that the request for expert witness fees as
costs was not supported by evidence of a written settlement offer and
the court of appeal therefore reversed the award due to the lack of
supporting evidence. (Behr, at p. 538.) The case is distinguishable
because here, Mora did submit evidence of the written settlement
offers.
36
‘ “realistically reasonable under the circumstances of the
particular case. …” ’ [Citations.] A token or nominal offer made
with no reasonable prospect of acceptance will not pass the good
faith test. [Citation.] ‘[W]hen a party obtains a judgment more
favorable than its pretrial offer, [the offer] is presumed to have
been reasonable and the opposing party bears the burden of
showing otherwise.’ [Citations.]” (Essex Ins. Co. v. Heck (2010)
186 Cal.App.4th 1513, 1528 (Essex).)
“ ‘ “Whether a section 998 offer was reasonable and made in
good faith is left to the sound discretion of the trial court.”
[Citation.] “In reviewing an award of costs and fees under …
section 998, the appellate court will examine the circumstances of
the case to determine if the trial court abused its discretion in
evaluating the reasonableness of the offer or its refusal.”
[Citation.] “ ‘ [“]The burden is on the party complaining to
establish an abuse of discretion, and unless a clear case of abuse
is shown and unless there has been a miscarriage of justice a
reviewing court will not substitute its opinion and thereby divest
the trial court of its discretionary power.” [Citations.]’ ”
[Citation.]’ [Citation.]” (Essex, supra, 186 Cal.App.4th at
pp. 1528–1529.)
The court concluded Mora’s settlement offers were
reasonable under the circumstances. Noting that the offers were
made two and a half years after plaintiffs filed their complaint,
the court rejected plaintiffs’ argument that the offers were
premature. Further, Mora’s offers were accompanied by a letter
disclosing to plaintiffs that Mora’s experts had determined that
he met the standard of care and did not cause Dee Ann’s injuries.
By that point, the court found, plaintiffs had had the opportunity
to evaluate the strength of their case and obtain their own expert
37
opinion regarding Mora’s liability. Further, the court found that
the offer to waive costs was not unreasonably low: “Indeed, it is
hard to ignore that defendant Mora’s motion for summary
judgment was granted as a direct result of plaintiffs’ decision not
to make their expert available for deposition as ordered by the
Court. Given the multiple opportunities plaintiffs were afforded
to comply with the Court’s order to produce their expert
Dr. Rand-Luby for deposition, it is reasonable to infer plaintiffs
decided not to do so because they well knew that expert could not
provide evidence to raise a disputed issue as to Dr. Mora’s
liability.”
We see no abuse of discretion in the court’s ruling. Courts
have held that a settlement offer of a waiver of costs can have
significant monetary value, as it does here. (See Jones v.
Dumrichob, supra, 63 Cal.App.4th at p. 1264 [noting a party’s
exposure to costs can be substantial].) And the fact that Mora
prevailed on the motion for summary judgment is prima facie
evidence that his settlement offer was reasonable. (See, e.g.,
Essex, supra, 186 Cal.App.4th at p. 1528 [noting that “ ‘[w]hen a
party obtains a judgment more favorable than its pretrial offer,
[the offer] is presumed to have been reasonable’ ”].)
Plaintiffs fail to demonstrate a clear abuse of discretion.
Citing Pineda v. Los Angeles Turf Club, Inc. (1980) 112
Cal.App.3d 53 (Pineda), plaintiffs contend that Mora’s settlement
offers were invalid because they were “premature,” “illusory, and
patently unreasonable.” Specifically, plaintiffs note that Mora
served his settlement offers in May 2019, before he had incurred
any expert witness fees, and on that basis they argue that “the
offers were clearly illusory, token offers designed solely to make
[Mora] ‘eligible for the recovery of large expert witness fees at no
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real risk.’ ” Further, plaintiffs claim that offering a waiver of
costs as a settlement “at the point of litigation where no expert
fees have been incurred renders the offer illusory, token and
patently invalid.”
Pineda involved the wrongful death of a jockey due to a
head injury sustained at the Santa Anita racetrack. One of the
defendants manufactured the helmet the decedent wore, and
plaintiffs contended the helmet was defectively designed and
manufactured. (Pineda, supra, 112 Cal.App.3d at p. 56.)
Apparently, the trier of fact determined that the manufacturer
was not liable. The manufacturer had offered the plaintiffs
$2,500 to settle the case about a month prior to trial and they
declined. The manufacturer then requested expert witness fees as
costs under section 998. But the court denied the request, saying
that the offer was unreasonable and not made in good faith.
(Pineda, at pp. 62–63.) The court’s explanation of its ruling was
brief: “ ‘I don’t feel that [the manufacturer’s] offer was a realistic
offer in this case and the expert witness fees will be denied.’
When questioned by Mr. Davis, counsel for [the manufacturer],
concerning the basis of its ruling, the court reiterated, ‘I feel,
under the circumstances, it was not a good faith offer and I am
exercising my discretion and I am going to disallow those costs.
That is final.’ ” (Id. at p. 63.)
The appellate court concluded that the court did not abuse
its discretion. “Under the circumstances of this case[,] the trial
court had ample reason to find that the offer was not reasonable.
Although [the manufacturer’s] liability was tenuous indeed,
having in mind the enormous exposure the trial court could find
that [the manufacturer] had no expectation that its offer would
be accepted. From this it follows that the sole purpose of the offer
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was to make [the manufacturer] eligible for the recovery of large
expert witness fees at no real risk.” (Pineda, supra, 112
Cal.App.3d at p. 63.)
It is evident that the court’s analysis in Pineda was fact-
specific and therefore provides little guidance in the present case.
But at a minimum, the case does not stand for the proposition
plaintiffs advance, namely, that the service of a settlement offer
prior to incurring substantial expert fees is necessarily an
“illusory” and “token” offer that will not support an award of
expert fees as costs under section 998.
Plaintiffs also suggest that the offer of a waiver of costs was
invalid because Dee Ann’s medical expenses exceeded
$1.2 million, citing Pineda and Wear v. Calderon (1981) 121
Cal.App.3d 818, 821 (Wear).
In Wear, after a judgment in favor of the defendant, the
trial court awarded the defendant costs including expert witness
fees based on the plaintiff’s pretrial rejection of the defendant’s
section 998 compromise offer of $1. The Court of Appeal deleted
the award of expert witness fees from the cost award and
affirmed the modified judgment. In so doing, the court
determined that a section 998 offer must be made in good faith.
(Wear, supra, 121 Cal.App.3d at p. 821.) Because it appeared, on
the particular circumstances of the case, that the defendant made
the offer for the sole purpose of later recovering large expert
witness fees, the court concluded that the $1 settlement offer did
not satisfy the good faith requirement. (Id. at p. 822.)
Plaintiffs cite no facts indicating that Mora acted in bad
faith or made his settlement offer solely for the purpose of later
recovering expert witness fees. As noted, the settlement offers
sent to plaintiffs disclosed that Mora’s experts had concluded that
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Mora did not breach the standard of care or cause Dee Ann’s
injuries. In other words, Mora had a reasonable belief that he
would prevail in the litigation and it was therefore reasonable to
offer to settle the case for a relatively low amount. In the absence
of evidence to the contrary, we see no abuse of discretion in the
court’s conclusion that Mora acted in good faith.
DISPOSITION
The judgment and order awarding costs are affirmed.
Respondent Jeffrey Mora shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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