Tayefeh v. Kern Medical Center CA5 ( 2024 )

Filed 1/29/24 Tayefeh v. Kern Medical Center CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
FARZIN TAYEFEH et al.,
F085746
Plaintiffs and Appellants,
(Super. Ct. No. BCV-15-100647)
v.
KERN MEDICAL CENTER et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw,
Judge.
Fenton Law Group, and Benjamin J. Fenton for Plaintiffs and Appellants.
Hall Hieatt Connely & Bowen, Mark B. Connely and Stephanie A. Bowen for
Defendants and Respondents.
-ooOoo-
INTRODUCTION
Plaintiff and appellant Farzin Tayefeh, M.D. (Tayefeh), along with Farzin
Tayefeh, M.D., Inc. (collectively, plaintiffs), appeal from a costs award in favor of
defendants and respondents Kern Medical Center (KMC) and the County of Kern
(collectively, defendants). Plaintiffs claim the costs for the deposition of an out-of-state
witness were unnecessary and unreasonable, and they assert that expert witness costs
should not have been awarded and were otherwise unreasonable. Defendants dispute the
trial court erred in any respect and request sanctions against plaintiffs for filing a
frivolous appeal.
For the reasons discussed post, plaintiffs have not established the trial court
abused its discretion in awarding costs. We therefore affirm the trial court’s award of
costs and deny defendants’ motion for sanctions.
FACTUAL BACKGROUND
This case arises from defendants’ election to terminate Tayefeh’s temporary
hospital privileges in January 2015 after receiving notification that the Medical Board of
California (MBC) had filed an accusation against Tayefeh seeking revocation or
suspension of his medical license. Tayefeh filed suit against defendants, claiming KMC
had wrongfully terminated his privileges by not providing him with hearing and appellate
rights in violation of KMC’s medical staff bylaws.
The case proceeded to a jury trial in 2017, which resulted in a judgment in favor of
defendants. The judgment was reversed on appeal and, in May 2021, defendants served
plaintiffs with an offer to compromise under Code of Civil Procedure section 9981 in the
amount of $20,000, which plaintiffs rejected. Thereafter, the parties agreed to a court
trial, which was held in 2022. The trial court found in favor of defendants on plaintiffs’
1 All further statutory references are to the Code of Civil Procedure unless indicated
otherwise.
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sole claim of wrongful termination of hospital privileges, and a judgment for defendants
was issued. Defendants filed a memorandum of costs seeking $22,005.92, which
included a request for $4,750 in expert witness costs related to Dr. Allan Pont and
$2,128.19 for costs related to the deposition of Dr. Michael Gibbs.
The trial court denied plaintiffs’ motion to tax costs, finding each of the claimed
costs were reasonably related to the litigation and constituted an allowable cost.
Plaintiffs appealed.
DISCUSSION
I. Deposition Costs For Dr. Michael Gibbs
The trial court awarded $2,128.19 for the deposition of Dr. Gibbs, which included
$928.10 for travel costs to Indiana for the deposition. Plaintiffs argue the deposition of
Dr. Gibbs was unnecessary, as the information KMC sought from him was irrelevant to
the issues in the case, and the costs associated with travel and video recording of the
deposition were unreasonable.
Generally, a prevailing party is entitled to costs as a matter of right. (§ 1032,
subd. (b).) As relevant here, allowable costs include taking, video recording, and
transcribing necessary depositions as well as travel expenses to attend depositions.
(§ 1033.5, subd. (a)(3)(A).) Section 1033.5 further provides that “[a]llowable costs shall
be reasonably necessary to the conduct of the litigation rather than merely convenient or
beneficial to its preparation … [¶] … [and] shall be reasonable in amount.” (Id.,
subd. (c)(2), (3).)
“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.” (Ladas v.
California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) The party appealing the
trial court’s decision to award costs bears the burden “‘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
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of its discretionary power.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) To
meet its burden, a complaining party must therefore show that the trial court exercised its
discretion in an “arbitrary, capricious or patently absurd manner .…” (Najera v. Huerta
(2011) 191 Cal.App.4th 872, 877.)
KMC maintains the deposition was necessary because Gibbs was the chief of the
anesthesiology department at the hospital where Tayefeh provided services just prior to
working at KMC. KMC wanted to determine what information Gibbs had about the
MBC’s investigation against Tayefeh when Gibbs provided KMC with a letter of
recommendation for Tayefeh. KMC also wished to determine what additional
information Gibbs might have that would contradict Tayefeh’s claims. KMC argues the
deposition revealed relevant information because it contradicted Tayefeh’s deposition
testimony that he did not leave the hospital in San Diego until December 2014, and while
it was not needed for impeachment at trial, it was available for that purpose. KMC
maintains it was entitled to investigate its case and seek relevant information.
Plaintiffs argue the deposition was unnecessary because Gibbs had no relevant
information to offer—what he knew about the MBC accusation was entirely irrelevant to
whether KMC wrongfully denied Tayefeh hearing and appellate rights under the bylaws.
Further, the timing and reason for Tayefeh’s departure from the hospital in San Deigo
had nothing to do with the claims against defendants.
Plaintiffs have not established any abuse of discretion. The fact that a deponent is
not called to testify at trial does not mean his or her deposition was unnecessary for trial
preparation. (Moss v. Underwriters’ Report, Inc. (1938) 12 Cal.2d 266, 276 [“the fact
that the plaintiff did not offer [depositions] as evidence upon the trial does not necessarily
indicate that he could have safely proceeded to trial without them”].) Gibbs was the chief
of the department at the hospital where Tayefeh was providing services immediately prior
to coming to KMC, and thus might have had information relevant to the MBC’s
investigation of Tayefeh. While that information may not have had great relevance to the
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substance of Tayefeh’s claims, it did have relevance for impeachment purposes.
Defendants were entitled to investigate the case and determine what relevant information
Gibbs might possess, including that which might have impeachment value against
Tayefeh, plaintiffs’ primary witness.
Plaintiffs also argue the deposition costs are unreasonable because defendants
chose to fly to Indiana for a deposition that lasted only 26 minutes, but we find no abuse
of discretion in awarding these travel costs. Under section 1033.5, subdivision (a)(3)(C),
travel expenses to attend depositions are an allowable cost, and there is no preclusion for
out-of-state depositions. Moreover, as an out-of-state witness beyond the subpoena
power of the trial court, ensuring the ability to present Gibb’s testimony at trial was
arguably best accomplished by video recording. (Evid. Code, § 240, subd. (a)(4) [witness
unavailable if court is unable to compel attendance by its process]; Code Civ. Proc,
§ 2025.620, subd. (c)(2)(D) [deposition of unavailable witness may be used at trial].)
In sum, the trial court did not err in concluding Gibbs’s deposition was reasonably
necessary to the litigation and awarding the associated costs.
II. Expert Fees of Dr. Allan Pont
Plaintiffs argue the trial court erred in awarding expert witness costs under
section 998 because the offer was not made in good faith—it was not realistically
reasonable under the circumstances of the case.
A. Expert Witness Fees Were Awardable
Expert witness fees are not recoverable as a cost under section 1032, but they may
be recoverable under section 998. Pursuant to section 998, subdivision (c)(1), “If an offer
made by a defendant is not accepted and the plaintiff fails to obtain a more favorable
judgment or award, the plaintiff … shall pay the defendant’s costs from the time of the
offer. In addition, … the court …, 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
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regular employees of any party, actually incurred and reasonably necessary in either, or
both, preparation for trial …, or during trial …, of the case by the defendant.”
A prevailing party may recover costs under section 998 only if the offer was made
in good faith. (Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 924
(Licudine).) A section 998 offer is made in good faith if the offer is “‘realistically
reasonable under the circumstances of the particular case’” (Elrod v. Oregon Cummins
Diesel, Inc. (1987) 195 Cal.App.3d 692, 698)—i.e., if the offer “‘carr[ies] with it some
reasonable prospect of acceptance’” (Regency Outdoor Advertising, Inc. v. City of Los
Angeles (2006) 39 Cal.4th 507, 531). “A token or nominal offer made with no reasonable
prospect of acceptance will not pass the good faith test.” (Essex Ins. Co. v. Heck (2010)
186 Cal.App.4th 1513, 1528 (Essex).) “‘[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.’” (Ibid.)
A prevailing party who has made a reasonable and good faith pretrial offer under
section 998 is entitled to specific costs, and may be awarded a reasonable amount to
cover the costs of the services of expert witnesses. (Nelson v. Anderson (1999) 72
Cal.App.4th 111, 134.) We review a trial court’s ruling on an award of expert fees under
section 998 for an abuse of discretion. (Licudine, supra, 30 Cal.App.5th at p. 923;
accord, Nelson, supra, at p. 134 [“Whether a section 998 offer was reasonable and made
in good faith is left to the sound discretion of the trial court.”].) It is the complaining
party’s burden 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. (Essex,
supra, 186 Cal.App.4th at p. 1529.)
Defendants served an offer under section 998 on May 7, 2021, in the amount of
$20,000, which plaintiffs did not accept. Plaintiffs argue there was no reasonable
prospect the offer, after six years of litigation, would be accepted—i.e., it was not
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reasonable or made in good faith. Defendants argue the fact that plaintiffs decided to
litigate this case for six years does not make the section 998 offer unreasonable because
at the time the offer was made, plaintiffs were aware a jury had already found in favor of
defendants. Moreover, defendants argue, there was a significant and substantial dispute
about the amount of damages recoverable.
Defendants’ section 998 offer was presumptively reasonable because defendants
obtained a judgment more favorable than their offer. The offer was made after the
original judgment in defendants’ favor was reversed on appeal, and the matter was
returned for a new trial, but nothing about the issues decided on appeal eliminated or
impaired defendants’ substantive arguments and defenses. Further, defendants’
section 998 offer included a waiver of costs, which, after the first trial, had amounted to
approximately $12,000. The fact plaintiffs pursued the case for a significant amount of
time was not necessarily indicative of its strength. Nothing plaintiffs point to indicate
defendants’ offer was unreasonable under these circumstances.
Whether an offer is made in good faith is based on whether, at the time it was
made, it carried a reasonable prospect of acceptance by the offeree. (Smalley v. Subaru of
America, Inc. (2022) 87 Cal.App.5th 450, 459.) Here, the offer was within the range of
possible results at trial, considering the first trial had resulted in a verdict for defendants.
Although this court’s decision on appeal afforded plaintiffs the opportunity to present
expert testimony that had previously been excluded at the first trial, this did not
dramatically increase plaintiffs’ ability to obtain a favorable judgment, especially as to
damages because plaintiffs’ evidence supporting damages remained unchanged and
relatively weak. Moreover, because the parties had already tried the case once before the
section 998 offer was made, plaintiffs had a fair opportunity to intelligently evaluate the
offer. Although the offer was low considering the costs associated with another trial,
there was a supported basis for the trial court to conclude under these circumstances the
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offer was both reasonable and made in good faith. The trial court did not abuse its
discretion in awarding expert witness fees under section 998.
Turning to the reasonableness of Pont’s fees, defendants were awarded $4,750 for
Pont’s time preparing for and testifying at trial. Plaintiffs argue the preparation time of
6.5 hours is not reasonable as Pont’s trial testimony took only two hours. Defendants
argue 6.5 hours was a reasonable amount to review prior deposition transcripts and
documents and to meet with defense counsel in preparation for trial. Defendants are
correct—there is nothing objectively unreasonable about 6.5 hours of preparation time
just because it exceeds the time it took to testify at trial. Plaintiffs have not shown
awarding Pont’s expert witness fees constituted an abuse of discretion.
III. Defendants’ Request For Sanctions
In addition to their responsive brief, defendants filed a motion seeking sanctions.
Defendants argue plaintiffs’ appeal of the trial court’s cost order is entirely frivolous,
without merit and was filed only for the purpose of delay; defendants urge us to award
sanctions under section 907. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654
(Flaherty); Cal. Rules of Court, rule 8.276(a)(3), (4).)
“[A]n appeal should be held to be frivolous only when it is prosecuted for an
improper motive—to harass the respondent or delay the effect of an adverse judgment—
or when it indisputably has no merit—when any reasonable attorney would agree that the
appeal is totally and completely without merit.” (Flaherty, supra, 31 Cal.3d at p. 650.)
“An appeal that is simply without merit is not by definition frivolous and should not incur
sanctions.” (Ibid.) The punishment of sanctions “should be used most sparingly to deter
only the most egregious conduct.” (Id. at p. 651.)
While plaintiffs’ appeal from the costs order is unpersuasive, it is not foregone that
any reasonable attorney would find plaintiffs’ arguments totally and completely without
merit. No clear evidence of subjective bad faith in conjunction with the appeal has been
presented, and this appeal does not demonstrate any egregious conduct.
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DISPOSITION
The court’s order is affirmed, and defendants’ motion for sanctions is denied.
Defendants are entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
MEEHAN, J.
WE CONCUR:
LEVY, Acting P. J.
FRANSON, J.
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