TO BE FILED IN THE COURT OF APPEAL. Superior Court Case Number: Kenneth R. Pedroza, SBN /Maureen M. Home, SBN COLE PEDROZA LLP

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2 TO BE FILED IN THE COURT OF APPEAL COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION FIVE Court of Appeal Case Number: B AlTORNEY OR PARTY WITHOUT AlTORNEY (Name, State Bar number, and address): Superior Court Case Number: Kenneth R. Pedroza, SBN /Maureen M. Home, SBN COLE PEDROZA LLP BC Mission Street, Suite 200 FOR COURT USE ONLY San Marino, CA ' TELEPHONE NO.: FAX NO. (Optional): ADDREss coptionatj: mhome@colepedroza.com ATIORNEY FOR (NameJ: Karen Michelle Shainsky APPELLANT/PETITIONER: Linda De Rogatis, et al. APP-008 RESPONDENT/REAL PARTY IN INTEREST: Karen Michelle Shainsky CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (Check one): [L] INITIAL CERTIFICATE 0 SUPPLEMENTAL CERTIFICATE Notice: Please read rules and before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed. 1. This form is being submitted on behalf of the following party (name):_k_a_r_e_n_m_ic_h_e_l_le_s_h_a_in_s_k~y 2. a. [{] There are no interested entities or persons that must be 'listed in this certificate under rule b. D Interested entities or persons required to be listed under rule are as follows: Full name of interested entity or person Nature of interest (Explain): (1) (2) (3) (4) (5) D Continued on attachment 2. The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2). Date: March 30, 2015 Maureen M. Home (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR AlTORNEY) Form Approved for Optional Use Judicial Council of California APP-008 [Rev. January 1, 2009] Page 1of1 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Cal. Rules of Court, rules 8.208,

3 TABLE OF CONTENTS INTRODUCTION... 1 STATEMENT OF TfIE CASE... 3 I. FACTUAL BACKGROUND... 3 A. Referral To Dr. Shainsky For Pain Management Initial Office Visit And Fibromyalgia Diagnosis... : Second Scheduled Visit Third Visit On March 22, Ms. De Rogatis's Lethal And Toxic Levels Of Multiple Prescription Medications... 7 B. Coroner's Report... 8 C. Competing Expert Testimony... 8 II. PROCEDURAL BACKGROUND A. Section 998 Offer Before Trial B. Unanimous Defense Verdict C. Expert Fees Awarded Pursuant To Section STANDARD OF REVIEW LEGAL DISCUSSION

4 I. THE APPEAL MUST BE DISMISSED - PLAINTIFFS FAILED TO APPEAL THE POSTJUDGMENT ORDER AWARDING EXPERT WITNESS FEES PURSUANT TO SECTION II. THE AW ARD OF EXPERT WITNESS FEES PURSUANT TO SECTION 998 WAS NOT AN ABUSE OF DISCRETION A. A Trilogy Of Cases Established The Test For Determining Whether A Section 998 Offer Is Reasonable And Made In Good Faith B. Appellants Bear The Burden Of Showing That A Section 998 Offer Was Not Reasonable C. Appellants Did Not Meet Their Burden To Show That The Trial Court Abused Its Discretion In A warding Expert Witness Fees Pursuant To Section First Prong-Dr. Shainsky's Section 998 Offer Represented A Reasonable Prediction Second Prong-Information Known To The Plaintiffs At The Time Of The Section 998 Offer D. Appellants Did Not Meet Their Burden To Show The Trial Court Abused Its Discretion In Setting The Amount Of The Award Pursuant to Section III. A PER SE RULE BARRING A WAIVER OF COSTS IN SECTION 998 OFFERS IS CONTRARY TO THE PLAIN LANGUAGE AND PURPOSE OF THE STATUTE CONCLUSION CERTIFICATION

5 TABLE OF AUTHORITIES Page(s) CASES Adams v. Ford Motor Co. (2011) 199 Cal.App.4th , 33 Barba v. Perez (2008) 166 Cal.App.4th Carver v. Chevron US.A., Inc. (2002) 97 Cal.App.4th Chinn v. KMR Property Management (2008) 166 Cal.App.4th , 31 Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th , 29, 30 Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d passim Denham v. Superior Court (1970) 2 Cal.3d , 13, 14, 30 Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d passim Essex Insurance Co. v. Heck (2010) 186Cal.App.4th Estate of Gilkison (1998) 65 Cal.App.4th : Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th ,

6 Grant v. List & Lathrop (1992) 2 Cal.App.4th , 16 Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th , 32 Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d Jones v. Dumrichob (1998) 63 Cal.App.4th , 32 Mesa Forest Products, Inc. v. St. Paul Mercury Insurance Co. (1999) 73 Cal.App.4th Najera v. Huerta (2011) 191 Cal.App.4th Nelson v. Anderson (1999) 72 Cal.App.4th Pineda v. Los Angeles Tur/Club, Inc. (1980) 112 Cal.App.3d , 19, 22 Robbins v. Alibrandi (2005) 127 Cal.App.4th Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Cal.App.4th , 29, 31 Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th Shamblin v. Brattain (1988) 44 Cal.3d Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th , 16 Thompson v. Miller (2003) 112 Cal.App.4th , 3 IV

7 Wear v. Calderon (1981) 121 Cal.App.3d , 18, 19, 22 STATUTES Code of Civil Procedure Section 581d... :.. 31 Section ;... passim Section , 21, 22 Section OTHER AUTHORITIES Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014) ~ 8:88, p RxList, Norco (Hydrocodone Bitartrate and Acetaminophen) Drug Information 5 RxList, Percocet (Oxycodone and Acetaminophen) Drug Information 6 v

8 INTRODUCTION Respondent Karen Michelle Shainsky, D.O., was awarded expert witness fees pursuant to Code of Civil Procedure section 998 ("section 998") after a defense verdict in which the jury unanimously concluded that she did not breach the standard of care when treating Tara De Rogatis for pain management associated with fibromyalgia. (Clerk's Transcript (CT) 12.) Ms. De Rogatis tragically committed suicide by ingesting a lethal dose of prescription drugs. Plaintiffs and appellants Linda De Rogatis, as successor in interest of her daughter's estate and individually, along with the decedent's father, Peter De Rogatis, contended at trial, and do so again in this appeal, that their daughter filled Dr. Shainsky's prescription of Percocet and used those drugs to commit suicide. In other words, because the jury got it wrong, Dr. Shainsky's section 998 offer before trial was unreasonable. Appellants' recitation of the facts, however, omits evidence presented to the jury - evidence appellants had at the time of the section 998 offer - that established Dr. Shainsky had no liability. When Dr. Shainsky presented her section 998 offer for a waiver of costs in exchange for a dismissal with prejudice, appellants knew or should have known that the investigative report of the Los Angeles County Coroner (coroner's report) revealed the Percocet prescription found at Ms. De Rogatis' s residence had not been prescribed by Dr. Shainsky, and the toxicology report indicated Ms. De Rogatis had lethal levels of oxycodone (Percocet) and tramadol, as well as toxicto-lethal levels of several other prescription medications. (6 Reporter's Transcript (RT) 490: :26; Exh :31, 1

9 attached as an exhibit.) Moreover, one of plaintiffs' designated experts (not called as a witness at trial) concluded that Dr. Shainsky's treatment of Ms. De Rogatis, w~ich included prescription pain medication, did not breach the standard of care. Therefore, at the time of the section 998 offer, appellants had more than enough information to conclude that the offer to waive costs, valued at $25,000 when the offer was made and expected to rise should the case proceed to trial, was made in good faith and was reasonable. Worse yet, while plaintiffs only appeal from the postjudgment section 998 costs, they failed to file a notice of appeal following the award. Dr. Shainsky's entitlement to these costs was not decided in the judgment, from which the appeal was taken. Therefore, this Court lacks jurisdiction to hear this appeal Assuming this Court has jurisdiction, the defense verdict is prima facie evidence that the section 998 offer was made in good faith. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 700.) Contrary to Appellants' Opening Brief, the determination of whether a section 998 offer is made in good faith does not tum on whether plaintiffs found experts to testify at trial. Even facts that simply afford a difference of opinion are unavailing. Rather, under the entire circumstances of the case, appellants must show that the trial court abused its discretion. (Thompson v. Miller (2003) 112 Cal.App.4th 327, ) Appellants' recitation of contrary expert testimony does not meet their burden under this standard. The trial court was well within its discretion to award expert fees to Dr. Shainsky pursuant to section 998. The judgment should be affirmed. 2

10 STATEMENT OF THE CASE I. FACTUAL BACKGROUND This is an appeal after a unanimous jury verdict in favor of Dr. Shainsky in which the trial court awarded expert witness fees pursuant to section 998 as recoverable costs to the prevailing party. Therefore, the summary of significant facts is presented in the light most favorable to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of Dr. Shainsky. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Thompson v. Miller, supra, 112 Cal.App.4th at p. 330.) The expert testimony summarized in Appellants' Opening Brief ignores this basic rule of appellate 1 practice. Appellants' summary of their experts' testimony to the exclusion of the testimony of defense experts (which the jury credited in its unanimous defense verdict) also ignores the standard of review. Unlike the substantial evidence standard that measures the quantum of proof adduced at trial, the abuse of discretion standard measures, whether, given the established evidence, the trial court's decision " 'falls within the permissible range of options set by the legal One illustration suffices. "As the evidence at trial reflected, well qualified experts firmly established that Dr. Shainsky breached the standard of care by providing 100 Percocet to [Ms. De Rogatis] at a time when she was expressing a wish to die and where her drug use had been escalating. The failure to limit her access to powerful drugs that she could _: and did - use to kill herself was a substantial factor in causing her death. (Appellants' Opening Brief (AOB) at 25.) The jury, however, reached the opposite conclusion. (CT 12.) 3

11 criteria.' [Citation.]" (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014) ~ 8:88, p ) Therefore, the facts presented in this section are based upon the entire record, construed in the light most favorable to the unanimous defense verdict. A. Referral To Dr. Shainsky For Pain Management In 2007, Ms. De Rogatis was diagnosed with several psychiatric disorders, including dissociative disorder, psychotic disorder, and schizoaffective disorder. (6 RT 526:2-3, 537:12-538:14, 541:17-21, 562:21-563:24.) She was being treated by a psychiatrist who prescribed medication for her condition. (6 RT 526:2-3, 539:3-19; 546:3-547:10, 548:13-18.) Dr. Shainsky is a rheumatologist. (4 RT 203:11-12.) Because Ms. De Rogatis had complained of widespread pain for about two years, in early 2010, one of her physicians referred her to Dr. Shainsky to determine whether the pain might be caused by an autoimmune disease. (4 RT 209:11-15.) Dr. Shainsky saw Ms. De Rogatis three times before Ms. De Rogatis committed suicide on March 23, Initial Office Visit And Fibromyalgia Diagnosis On February 10, 2010, Ms. De Rogatis had her first appointment with Dr. Shainsky. ( 4 RT 208: :6.) In reciting her medical history to Dr. Shainsky, Ms. De Rogatis complained of intermittent pain described as "pins and needles" sensations. ( 4 RT 4

12 219:19-25, 220:3-5.) She had been prescribed Lyrica, a prescription drug used to treat pain associated with fibromyalgia, but reported to Dr. Shainsky that she had a bad reaction to that drug. ( 4 RT 221: ) Dr. Shainsky's records also indicated that Ms. De Rogatis" 'has been taking Norco for a month or two and reports great relief.' " ( 4 RT 255:23-256:4.) Norco is the brand name for hydrocodone, an opioid analgesic. (RxList, Norco (Hydrocodone Bitartrate and Acetaminophen) Drug Information [as ofmarch 16, 2015].) After a physical examination, Dr. Shainsky diagnosed Ms. De Rogatis with fibromyalgia. (4 RT 232:17-233:1, 264:20-25.) Dr. Shainsky recommended a treatment plan that included trigger point injections to ease the pain, the prescription drug Cymbalta, and other non-narcotic therapy. (4 RT 265:7-14, 266:19-267:2; 5 RT 301:19-302:2, 372:9-21.) Dr. Shainsky's short-term plan was to treat the pain until the Cymbalta began to work, and prescribed Norco as Ms. De Rogatis already was taking the medication and had reported that it was effective. (4 RT 266:19-267:2, 255:23-256:4.) The Norco prescription was for five milligram tablets taken every six hours as needed. (4 RT 268:13-24, 269:20-26.) The 60-tablet prescription was a 15-day supply, which was intended to last until Ms. De Rogatis's next scheduled appointment on March 1. (4 RT 269:13-26, 270:4-10.) After the initial visit, Dr. Shainsky learned more about Ms. De Rogatis' s psychiatric condition and her history of intermittent pain. ( 4 RT 235:18-24.) Previously, in 2009, Ms. De Rogatis had visited the 5

13 emergency room complaining of excruciating pain. ( 4 RT 235:18-24.) Before Ms. De Rogatis's next scheduled visit, Dr. Shainsky telephonically approved a prescription for 56 more tablets of Norco at the same dosage as the initial prescription. (4 RT 270:1-15, 270:25-271: 11.) The prescription provided a two-week supply of Norco. ( 4 RT 270:25-271:11.) 2. Second Scheduled Visit On March 1, 2010, at the next scheduled appointment, Dr. Shainsky increased Ms. De Rogatis's Cymbalta dosage. (5 RT 301:15-25.) Dr. Shainsky also increased Ms. De Rogatis's Norco dosage to 10 milligrams and prescribed a four-week supply of 100 tablets. (5 RT 302:3-303:15, 309:9-11.) 3. Third Visit On March 22, 2010 On March 22, 2010, Ms. De Rogatis woke up in excruciating pain and saw Dr. Shainsky later that day. (5 RT 309:24-310:1.) Ms. De Rogatis told Dr. Shainsky that her Norco prescription was no longer effective. (5 RT 315:28-316:4.) Dr. Shainsky prescribed 10 milligram tablets of Percocet to be taken as needed every six hours. The prescription was a 25-day supply. (5 RT 336:5-337:3.) The generic name for Percocet is oxycodone, an opioid analgesic. (RxList, Percocet (Oxycodone and Acetaminophen) Drug Information [as of Mar. 16, 2015].) 6

14 Dr. Shainsky noted that Ms. De Rogatis was anxious at the appointment. (5 RT 326:23-327:1.) Ms. De Rogatis had scheduled an elective surgery, and she told Dr. Shainsky that either her surgeon or anesthesiologist had recommended that she discontinue taking her antidepressant medications before the surgery. (5 RT 309:22-23, 326:23-327:8, 374:19-21.) Dr. Shainsky communicated this information to Ms. De Rogatis's treating psychiatrist, as well as Dr. Shainsky's assessment that Ms. De Rogatis was not suicidal. (5 RT 328:20-329:9, 374:16-26.) 4. Ms. De Rogatis's Lethal And Toxic Levels Of Multiple Prescription Medications Ms. De Rogatis died in the early morning of March 23, (4 RT 151:17-21; 6 RT 486: 4-15.) The toxicological exam showed lethal levels of multiple prescription medications, including Percocet.. (9 RT 1034: :3, 1047: :7.) Ms. De Rogatis never picked up Dr. Shainsky's prescription for Percocet. (Exh , attached as an exhibit; 4 RT 140: :4, 189:5-22, 190:15-18.) Dr. Shainsky received a call from Ms. De Rogatis's pharmacy after 8:00 p.m. on March 22, 2010 to verify the Percocet prescription that Dr. Shainsky had written earlier in the day. (5 RT 355:4-23; Exh ) The transaction time for Dr. Shainsky's prescription was 9:27 p.m., after Ms. De Rogatis had returned home. (Exh ; 4 RT 135:28.) 7

15 B. Coroner's Report The Los Angeles County Coroner was called to Ms. De Rogatis's residence on the morning of March 23, 2010, and the investigator prepared a report summarizing his investigation into Ms. De Rogatis's death. (6 RT 484:27-485:4, 486:4-12.) The coroner's report included an itemized listing of the prescription medications recovered at Ms. De Rogatis's residence. (6 RT 484:4-26; Exh to ) Multiple prescription medications were recovered. (6 RT 489:21-490:6, 491 :22-26.) The investigator completed an inventory of the pill bottles and prepared a chart listing the prescription, pharmacy, and name of the prescribing ph~sician. (6 RT 490: :26; Exh to ) The Percocet pill bottle recovered at the residence did not list Dr. Shainsky as the prescribing physician. (Exh ) The coroner's toxicology report indicated that Ms. De Rogatis had lethal levels of oxycodone and tramadol, a synthetic analgesic, and toxic-to-lethal levels of the sleep aide zolpidem (Ambien) and hydrocodone. (9 RT 1038:10-11, 1039: :11, 1047: :7.) C. Competing Expert Testimony Plaintiffs' theory that Dr. Shainsky breached the standard of care by prescribing Percocet to treat Ms. De Rogatis for pain associated with fibromyalgia was contradicted by defense expert witnesses. As noted in Appellants' Opening Brief, plaintiffs presented the expert testimony of Rodney Bluestone, M.D., a board- 8

16 certified rheumatologist, who testified that prescribing opioid medications is below the standard of care. (7 RT 639:27, 642:11-13, 660:3-661:19, 664:20-665:7.) Defense experts strongly disagreed with his opinion. Alan Weinberger, M.D., a board-certified rheumatologist who treats fibromyalgia patients, testified that Dr. Shainsky's diagnosis was correct, and Dr. Shainsky met the standard of care during each of the three appointments with Ms. De Rogatis. (8 RT 875:22-877:3, 898:23-899:24, 902:23-903:3, 903:15-20.) Dr. Weinberger disagreed with Dr. Bluestone, testifying that prescribing opiates to manage Ms. De Rogatis' s pain was not below the standard of care. (8 RT 883:10-24.) Moreover, Dr. Weinberger concluded that Dr. Shainsky's decisions to continue prescribing Norco, and then to switch to Percocet when Norco was no longer effective, were within the standard of care. (8 RT 878:22-879:14, 889:13-890:17, 898:12-23, 898:23-899:24, 905:13-906:5.) Dr. Weinberger noted that the Percocet prescription was a month's worth of pain medication, which would have lasted Ms. De Rogatis until the next scheduled visit. (8 RT 905:23-906:2, 907:14-18.) Dr. Laura Giffin Audell, a pain management specialist who has received referrals from several physicians, including plaintiffs' expert Dr. Bluestone, agreed with Dr. Shainsky's diagnosis of Ms. De Rogatis. (8 RT 848:12-15, 949:6-950:1.) Moreover, she testified that prescribing opiates was within the standard of care, especially since Ms. De Rogatis was taking pain medication. (8 RT 950:2-19.) The prescribed dosage was reasonable over the period for which Dr. Shainsky treated Ms. De Rogatis, and Dr. Audell did not believe that 9

17 Ms. De Rogatis exhibited drug-seeking behavior or that Ms. De Rogatis's drug use was escalating. (8 RT 951:7-13.) Dr. Audell also reviewed the deposition testimony of Dr. Bruce Stark, one of plaintiffs' retained experts. (8 RT 954:12-15.) Dr. Stark testified at deposition that Dr. Shainsky's treatment of Ms. De Rogatis, including prescribing Norco and Cymbalta, was within the standard of care. (8 RT 955:16-956:3.) Dr. Stark was not called to testify at trial. While plaintiffs' psychiatrist expert, Franklin Rudnick, M.D., testified that on March 22, 2010, Ms; De Rogatis was at high risk for suicide, defense expert Lukas Alexanian, M.D., reached the opposite conclusion. (8 RT 815:1-8, 816:1-818:7; 9 RT 983:27-984:26.) Dr. Alexanian testified that Ms. De Rogatis was a low suicidal risk, as she was continuing her life endeavors despite her chronic pain. (9 RT 983:27-984:26.) Michael Safani, Ph.D., a pharmacologist, testified as to the cause of death. ( 9 RT 1026: 8-9, 1031 : ) He reviewed the coroner's toxicological report and concluded that the tramadol Ms. De Rogatis ingested was eight times the minimum lethal level and was the cause of death. (9RT 1031:13-17, 1034: :3, 1047:13-20.) The tramadol alone would have killed Ms. De Rogatis. (9 RT 1047: ) The hydrocodone and oxycodone also were above the minimum lethal level. (9 RT 1047: :7.) Safani disagreed with plaintiffs' expert. (7 RT 75.5:27-756:21.) 10

18 II. PROCEDURAL BACKGROUND A. Section 998 Offer Before Trial On June 1, 2012, more than a year after the initial complaint was filed, Dr. Shainsky served identical section 998 offers on each plaintiff. (Augmented Record (AR) 69-72, 74-77; CT 8.) The section 998 offers stated that Dr. Shainsky "hereby offers to waive all recoverable costs, including expert witness fees, estimated to exceed $25,000.00, and waive a malicious prosecution claim, in exchange for the entry of dismissal with prejudice... in full settlement of this action." (AR 69, 74.) Plaintiffs did not accept the section 998 offers. B. Unanimous Defense Verdict By special verdict, the jury reached a unanimous defense verdict, finding that Dr. Shainsky was not negligent in her care and treatment of Ms. De Rogatis. (CT 12.) On December 2, 2013, judgment was entered. (CT ) The judgment indicated that Dr. Shainsky "shall recover from said plaintiffs costs of suit incurred... " and was left blank. (CT 18.) Notice of entry of judgment was served on December 5, (CT 16.) Notice of appeal from the judgment was filed on January 22, (CT 21.) C. Expert Fees Awarded Pursuant To Section 998 On December 17, 2013, Dr. Shainsky filed a memorandum of costs seeking $123,684.27, which included $62, in expert witness fees recoverable under section 998. (AR 1, 4.) 11

19 In response, plaintiffs filed a motion to tax costs, arguing that expert fees were not recoverable because Dr. Shainsky's section 998 offer was nominal and not made in good faith, as plaintiffs' experts had concluded that Dr. Shainsky had not met the standard of care, and Dr. Shainsky' s failure to file a motion for summary judgment raised an inference that substantial evidence supported plaintiffs' case. (AR ) Plaintiffs also asked the court to exercise its discretion to consider their inability to pay the amount requested. (AR 33-34, 42.) Dr. Shainsky opposed the motion. (AR ) Dr. Shainsky argued that her section 998 offer was not nominal, as her expert costs exceeded $25,000 at the time of the offer and would have increased should the case proceed to trial. (AR 50.) By June 1, 2012, sufficient discovery had been completed, and plaintiffs had a copy of the coroner's report indicating that the Percocet was not prescribed by Dr. Shainsky. (AR 50-51; Exh to ) Because the defense verdict constituted prima facie evidence that the section 998 offer was reasonable, Dr. Shainsky argued that the strategic decision to not file a motion for summary judgment was no indication of the strength of her defense or whether the plaintiffs were likely to prevail at trial. (AR ) On February 26, 2014, the trial court taxed one cost item and awarded Dr. Shainsky $114,857.54, including $62, in expert witness fees. (ARI, 233.) The amount of costs awarded was entered into the judgment. (AR 233; CT 12.) No appeal was taken from the postjudgment order. (CT 1-2.) 12

20 STANDARD OF REVIEW "'Whether a section 998 offer was reasonable and made in good faith is a matter left to the sound discretion of the trial court, and will not be reversed on appeal except for a clear abuse of discretion.' [Citation.]" (Najera v. Huerta (2011) 191 Cal.App.4th 872, 877.) "An attorney who prosecutes an appeal from an order addressed to the trial court's sound discretion is confronted with more than a daunting task." (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448.) Judicial discretion " ' "implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [~] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision." [Fn. omitted.]' [Citations.]" (Estate of Gilkison, supra, 65 Cal.App.4th at pp ) "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) Appellants bear 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 of its discretionary power.' [Citations.]" (Denham v. Superior Court, supra, 2 Cal.3d at p. 566.) " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on 13

21 matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court, supra, 2 Cal.3d at p. 564, original italics.) The 13 cases appellants cite to demonstrate that the trial court abused its discretion illustrate their daunting task on appeal. Only one of the 13 cases reversed the trial court's discretionary decision to award expert fees pursuant to section 998. (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.) In Wear, the appellate court concluded that a section 998 offer of $1.00 was not in good faith. (Wear v. Calderon, supra, 121 Cal.App.3d at p. 820.) Although the defendant obtained a defense verdict, the plaintiff obtained an $18,500 verdict against a codefendant. (Ibid.) In view of the $18,500 jury verdict, the appellate court reasoned that the plaintiff must have been seeking substantial damages against both parties. (Ibid.) Thus, the $1.00 offer was so disproportionate to the potential liability that the offeror had no expectation that it would be accepted. (Id. at pp ) Unlike Wear, appellants cannot show an abuse of discretion because Dr. Shainsky's section 998 offer was not disproportionate based upon Dr. Shainsky's assessment of her potential liability, and the facts known to plaintiffs at the time of the section 998 offer. 14

22 LEGAL DISCUSSION I. THE APPEAL MUST BE DISMISSED - PLAINTIFFS FAILED TO APPEAL THE POSTJUDGMENT ORDER A WARDING EXPERT WITNESS FEES PURSUANT TO SECTION998 Plaintiffs did not file a notice of appeal following the trial court's discretionary decision to award expert witness fees pursuant to section 998. (CT 1-2.) By minute order dated February 26, almost three months after entry of judgment on December 2, the trial court ruled on plaintiffs' motion to tax costs, which included the discretionary decision to award expert witness fees pursuant to section 998. (AR ) Plaintiffs' notice of appeal from the judgment was filed on January 22, a month before any hearing or ruling on plaintiffs' motion. (CT ) A notice of appeal filed before the announcement of the trial court's intended ruling cannot be treated as a premature but timely notice. (Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 691.) Although not addressed in Appellants' Opening Brief, it appears that appellants have prosecuted this appeal based on the belief that the appeal taken from the judgment also includes the trial court's postjudgment order awarding Dr. Shainsky expert witness fees. Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998 holds that an appeal from a final judgment encompasses a subsequent order fixing the amount of attorney fees, if the judgment adjudicated entitlement to attorney fees but left the amount for later insertion by the court clerk. Grant is inapposite. 15

23 As this Court noted in Silver v. Pacific American Fish Co., Inc., supra, 190 Cal.App.4th 688, the Grant exception only applies if the judgment determines entitlement to fees, leaving the amount for a later proceeding. (Id. at p ) Unlike Grant, the issue of whether Dr. Shainsky was entitled to recover expert witness fees pursuant to section 998 was not adjudicated by the original judgment. This issue was not decided until February 26, (AR ) Plaintiffs never filed an appeal related to the postjudgment order awarding section 998 costs. Section 998 augments the costs awarded pursuant to Code of Civil Procedure section 1032 to the prevailing party. Although the judgment was entered in Dr. Shainsky's favor, entitling her to costs as the prevailing party pursuant to section 998, the trial court in its discretion "rriay require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses." (Code Civ. Proc., 998, subd. (c)(l).) Thus, Dr. Shainsky did not become entitled to such costs until a cost bill was filed and the motion to tax costs was heard at a separate proceeding. (See Silver v. Pacific American Fish Co., Inc., supra, 190 Cal.App.4th at pp ) Under the rationale of Silver, the postjudgment order awarding expert witness fees pursuant to section 998 is separately appealable. Because appellants did not file a separate notice of appeal, this Court lacks jurisdiction, and the appeal must be dismissed. 16

24 II. THE A WARD OF EXPERT WITNESS FEES PURSUANT TO SECTION 998 WAS NOT AN ABUSE OF DISCRETION Appellants contend the judgment in favor of Dr. Shainsky should be modified because the trial court abused its discretion in awarding expert witness fees based upon the two-pronged test to determine whether a section 998 offer is reasonable and in good faith. Appellants have not met their burden to show that the trial court exercised its discretion in an arbitrary, capricious, or whimsical manner. A. A Trilogy Of Cases Established The Test For Determining Whether A Section 998 Offer Is Reasonable And Made In Good Faith Section 998 is a cost-shifting statute, the purpose of which is to encourage pretrial settlements and to avoid needless litigation. (Barba v. Perez (2008) 166 Cal.App.4th 444, 451.) Under subdivision (c)(l) of section 998, 2 if a plaintiff does not accept the defendant's settlement offer and fails to obtain a more favorable judgment or 2 Section 998, subdivision ( c )( 1) provides: "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 not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover 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." 17

25 award, the plaintiff must pay the defendant's postoffer costs. In addition, the court, in its discretion, may require the plaintiff to pay a reasonable sum to cover expert witness fees. (Ibid.) Although not expressly stated in the statute, the court in Wear v. Calderon, supra, 121Cal.App.3d818, explained that "a good faith requirement must be read into section 998[]" to "accomplish the legislative purpose of encouraging settlement of litigation without trial [.]" The Wear court described this "good faith requirement" as requiring that the offer was "realistically reasonable under the circumstances of the particular case[]" and was not "a token or nominal offer[.]" (Id. at p. 821) As noted, the Wear court concluded a $1 settlement offer was not made in good faith because the plaintiff had received a jury verdict of $18,500 in damages from a codefendant. (Ibid.) "A plaintiff may not reasonably be expected to accept a token or nominal offer from any defendant exposed to this magnitude of liability unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable." (Ibid.) Stated another way, if there is a reasonable possibility, however slight, that the defendant might be found liable, "there is practically no chance that a plaintiff will accept a token or nominal offer of settlement from that defendant in view of the current cost of preparing a case for trial." (Ibid.) In articulating this good faith requirement, the Wear court relied on the rationale of Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63. In Pineda, both the trial and appellate courts concluded that although the defendant's liability was tenuous, the defendant's settlement offer of $2,500 was so disproportionate to the 18

26 plaintiffs, demand of $10 million that it was not reasonable and the offeror had no expectation that it would be accepted. (Id. at pp ) "The operative phrases to be taken from the Pineda and Wear cases are, 'under the circumstances of this case," (Pineda, supra, 112 Cal.App.3d at p. 63), and 'realistically reasonable under the circumstances of the particular case' (Wear, supra, 121 Cal.App.3d at p. 821). Neither of these cases holds that the amount of demand by plaintiff, by itself, is indicative of whether defendant's compromise offer is 'realistically reasonable,' in 'good faith,' 'token' or 'nominal.' It is only one of the many factors to be taken into consideration by the trial judge in making his [or her] decision. To hold otherwise could force a liability-free defendant to pay for damages not of his doing." (Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710, fns. omitted.) Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d 692, the third case in the trilogy, held that the reasonableness of a section 998 must be determined by looking at the circumstances of the case when the offer is made. (Id. at p. 699.) The Elrod court set out a two-pronged test for determining whether a defendant's offer is reasonable and in good faith. The first prong is "whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial,... all premised upon information that was known or reasonably should have been known to the defendant. It goes without saying that a defendant is not expected to predict the exact amount of his exposure. If an experienced attorney or judge, 19

27 standing in defendant's shoes, would place the prediction within a range of reasonably possible results, the prediction is reasonable. [Citation.] " (Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at p. 699, italics and fn. omitted.) If the first prong is met, the second prong that must be met is "whether defendant's information was known or reasonably should have been known to plaintiff." (Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at p. 699.) This second prong is "necessary because the section 998 mechanism works only where the offeree has reason to know the offer is a reasonable one. If the offeree has no reason to know the offer is reasonable, then the offeree cannot be expected to accept the offer." (Ibid.) B. Appellants Bear The Burden Of Showing That A Section 998 Offer Was Not Reasonable The Elrod court explained that in applying the two-pronged test, the analysis begins with the judgment. "Where []... the offeror obtains a judgment more favorable than its offer, the judgment constitutes prima facie evidence showing the offer was reasonable.... The burden is therefore properly on... [the] offeree []to prove otherwise." (Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at p. 700.) Whether the offeree carried this burden is left to the sound discretion of the trial court. (Ibid.) Coining the Elrod court's conclusion regarding the offeree's burden as the "hindsight doctrine," appellants contend that it is analytically inconsistent with the two-pronged test that requires 20

28 evaluating the section 998 offer by looking at the circumstances of the case when the offer is made, and appellants further contend that courts have blindly followed and cited Elrod since 1987 without recognizing this inconsistency. No court, however, has recognized this "so-called" inconsistency because it does not exist. Elrod followed the general rule that where a party shows a prima facie entitlement to costs, the burden is on the objector to prove the costs should be disallowed. (Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at p. 700.) The plain language of section 998 follows this general rule, that is, when an offeror obtains a judgment more favorable than its offer, the offeror is entitled to costs. (See fn. 3, ante.) Section 998 augments the cost recovery rule set forth in Code of Civil Procedure section 1032, subdivision (b). Section 1032, subdivision (a)( 4) defines a prevailing party as "a defendant as against those plaintiffs who do not recover any relief against that defendant." Thus, section 998 must be read as part of the general rules regarding the recovery of costs. Appellants criticize courts for following this general rule, and they propose an analytical shift applicable only to section 998 offers that would make a judgment irrelevant when assessing the good faith requirement of a section 998 offer. As noted, such a rule would rewrite the cost statutes. Moreover, this proposed analytical shift ignores that the two-pronged test enunciated in Elrod benefits the objector by permitting the offeree to go back in time to show that despite the favorable judgment, the s~ction 998 offer was not a reasonable prediction of the offeror' s liability. This two-pronged test provides an additional avenue to attack section 998 recoverable costs, 21

29 in addition to challenging the amount sought, which is not available under Code of Civil Procedure sections 1032, subdivision (b) and C. Appellants Did Not Meet Their Burden To Show That The Trial Court Abused Its Discretion In Awarding Expert Witness Fees Pursuant To Section 998 Appellants contend that Dr. Shainsky's section 998 offer of a waiver of costs, which at the time of the offer exceeded $25,000, was neither made in "good faith" nor "realistically reasonable" under the circumstances of the case. Rather, the section 998 offer was a "token" or "nominal" offer (Wear v. Calderon, supra, 121 Cal.App.3d at p. 821), and was disproportionate to Dr. Shainsky's potential exposure for wrongful death damages (Pineda v. Los Angeles Turf Club, Inc., supra, 112 Cal.App.3d at p. 63), given their expert witness testimony presented at trial that supported a finding of liability against Dr. Shainsky. On this latter point, appellants break their own aversion to the hindsight rule by evaluating their case at the time of trial, not at the time of the section 998 offer. What did they know about their case on June 1, 2012 that would have made the defense verdict unpredictable? The coroner's report provided all that plaintiffs needed to know about Dr. Shainsky's liability. 22

30 1. First Prong-Dr. Shainsky's Section 998 Offer Represented A Reasonable Prediction Even a modest offer may be reasonable if an action is completely lacking in merit. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 134.) This is a case much like Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d 704. In Culbertson, the plaintiff sued a ladder manufacturer after he was injured when the ladder slid. Pretrial discovery revealed the ladder had been modified after it left the manufacturer,_ and the plaintiff's injuries were questionable given that he had a pre-existing back injury and was seen engaging in strenuous activities. (Id. at pp ) The defendant in Culbertson offered $5,000 on a $1.5 million demand for settlement. (Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 706.) After a defense verdict, the defendant sought to recover the cost of its expert witnesses. The Culbertson court concluded that the defendant's offer was reasonable, as it was based upon the defendant's analysis of its chances of being found liable and on the nature of the damages that a jury would likely ascribe to the plaintiff's "purported" fall. (Id. at p. 712.) The Culbertson court reasoned: When a defendant perceives himself to be fault free and has concluded that he has a very significant likelihood of prevailing at trial, it is consistent with the legislative purpose of section 998 for the defendant to make a modest settlement offer. If the offer is refused, it is also consistent with the legislative intent for the defendant to engage 23

31 the services of experts to assist him in establishing that he is not liable to the plaintiff. It is also consistent with the legislative purpose under such circumstances to require the plaintiff to reimburse the defendant for the costs thus incurred. It is clear that the Legislature adopted the statute to encourage early settlement of lawsuits to avoid the time delay and economic waste of trial, and to reduce the number of meritless lawsuits by requiring the losing party to pay the costs incurred by the prevailing party. (Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at pp ) Here, like the defendant in Culbertson, Dr. Shainsky' s offer of a waiver of costs, valued in excess of $25,000, was more than generous insofar as she perceived herself to be free of fault, and she had concluded that she had a very significant likelihood of prevailing at trial. Plaintiffs' theory of the case was that Dr. Shainsky breached the standard of care by treating Ms. De Rogatis' s fibromyalgia pain with opiates. At trial, the focus was on the Percocet prescription that Dr; Shainsky wrote for Ms. De Rogatis. When Dr. Shainsky made the section 998 offer, however, the coroner's report had been disclosed, which indicated that the Percocet found at Ms. De Rogatis's residence was prescribed by another doctor. (6 RT 489:21-490:6; Exh to ) Discovery also revealed that Dr. Shainsky's prescription was filled after Ms. De Rogatis returned home on the evening of March 22, (Exh ; 4 RT 135:28-136:25, 140:18-141:44; 5 RT 24

32 355:4-23.) Dr. Shainsky retailled experts that determined the pharmacological cause of death based upon the coroner's toxicology report, and determined that Ms. De Rogatis did not exhibit signs of drug-seeking behavior or escalating drug use during the short period of time that Dr. Shainsky treated her. (8 RT 875:22-877:3, 898:23-24, 902:23-903:3, 903:15-20, 949:6-19, 951:7-953:5.) Based upon this discovery, Dr. Shainsky was justified in believing that she had no liability and predictably would likely obtain a defense verdict. Appellants point to no evidence in the record that the trial court's decision constituted reversible error. Instead, appellants argue in the abstract that a waiver of costs valued in excess of $25,000 was not a reasonable prediction of the amount of damages awarded in wrongful death cases. As the Culbertson court warned, however, the amount of the plaintiffs' demand is only one of many factors to be taken into consideration by the trial court, because to hold otherwise would force a liability-free defendant to pay for damages not of his or her doing. (Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 710; see Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, [$10,000 offer could not be evaluated simply in comparison to the judgment the plaintiff sought, but could be evaluated under Elrod by determining the reasonable prediction of the amount that the defendant would have to pay the plaintiff, that is, a reasonable prediction of whether the plaintiff would prevail]; Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Cal.App.4th 102, [court rejected argument that $100,000 25

33 offer was not reasonable based upon plaintiffs claim of $900,000 in damages where defendant contended it had no liability]. ) 3 Thompson v. Miller, supra, 112 Cal.App.4th 327, cited by appellants, is also distinguishable. In an action by the minority shareholders of a closely held corporation against a majority shareholder and another shareholder, the appellate court determined that the settlement offer was within the range for which the defendants could have been found liable. (Id. at p. 339.) Thus, the appellate court reversed the trial court's denial of expert witness fees, concluding the decision was arbitrary given the circumstances of that case. (Ibid.) Unlike Culbertson or this case, Thompson does not suggest that the defendants had completed discovery and reached the conclusion thatthey had no liability. Appellants also contend that the.section 998 offer did not meet the first prong of the Elrod test because Dr. Shainsky's assessment that she had no liability was an unreasonable prediction of the damages, if any, that she would have had to pay to plaintiffs following trial given the expert testimony they presented on causation and liability. Appellants support this argument by pointing out that Dr. 3 Appellants cite to Mesa Forest Products, Inc. v. St. Paul Mercury Insurance Co. (1999) 73 Cal.App.4th 324 to argue that an "offer of $62,000 on a $122,000 claim is not in good faith in light of all the circumstances." (AOB at 32-33) Mesa Forest Products, Inc., however, addressed the legal issue of"whether, in determining if a plaintiff in a contract action has obtained a 'judgment' more favorable than an offer to compromise (Code Civ. Proc., 998), the trial court should take into account the defendant's postoffer payments on the debt." (Mesa Forest Products, Inc. v. St. Paul Mercury Insurance Co., at pp. 327, 336.) 26

34 Shainsky did not move for a directed verdict at the close of evidence or file a motion for summary judgment before trial. To prevail against Dr. Shainsky, plaintiffs had the burden of establishing that she prescribed the Percocet that they claimed caused Ms. De Rogatis's death. At the time of the section 998 offer, the coroner's report indicated that the Percocet found at Ms. De Rogatis's residence was prescribed by another physician. (Exh to ) No expert testimony presented at trial refuted this evidence. From Dr. Shainsky's perspective, the decision to not file a motion for summary judgment was no indication of plaintiffs' case or a concession that the plaintiffs were likely to prevail at trial - frankly, it evidences Dr. Shainsky's reasonable conclusion that plaintiffs would dismiss their case given the coroner's report that defeated their basis for liability against Dr. Shainsky. After discovery was nearly complete, Dr. Shainsky knew that the case against her was weak. (See, e.g., Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 185 [section 998 offer of $1,000 to the plaintiffs was reasonable because the plaintiffs had the burden of proving that a designated state employee had violated the law and despite having had adequate time to investigate, the plaintiffs' evidence rested on shaky circumstantial evidence].) Thus, appellants failed to meet their burden to show that Dr. Shainsky's section 998 offer was not a reasonable prediction of her liability to plaintiffs. A difference of opinion does not meet this burden. 27

35 2. Second Prong-Information Known To The Plaintiffs At The Time Of The Section 998 Offer As noted in Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d 692, ifthe offer is found reasonable under the first prong, it must then satisfy the second prong, that is, whether the defendant's information was known or reasonably should have been known to the plaintiff. (Id. at p. 699.) This second prong is objective: "Would a reasonable person have discovered the information?" (Id. at p. 700.) If, for example, a defendant has exclusive knowledge and makes a correspondingly low offer without sharing the information, such an offer would not meet this objective standard. (Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at pp ) Nothing in the appellate record suggests that plaintiffs (or their experts) did not have access to the coroner's report. Nevertheless, plaintiffs consciously disputed these findings by taking the matter to trial, thereby making it necessary for both sides to engage experts. While plaintiffs' experts were critical of the care Dr. Shainsky provided to Ms. De Rogatis, there was no dispute at trial that the Percocet found in Ms. De Rogatis' s residence was prescribed by another physician. Appellants have not demonstrated the trial court abused its discretion. Under section 998, Dr. Shainsky is entitled to recover her expert witness fees. 28

36 D. Appellants Did Not Meet Their Burden To Show The Trial Court Abused Its Discretion In Setting The Amount Of The Award Pursuant to Section 998 Appellants also maintain that the trial court's award of the entire amount of expert fees requested was an abuse of discretion because the trial court should have "scaled" the award downward (to zero) because of the severe financial impact it would have on them. (See Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, ) Although the Seever court articulated such a rule, in Clark v. Optical Coating Laboratory, Inc., supra, 165 Cal.App.4th 150, the court stated in dicta that there was no indication in the statute that a means analysis was mandatory in determining the amount to award under section 998. (Clark v. Optical Coating Laboratory, Inc., at p. 186.) "Such a rule, which would alter the settlement incentives provided by section 998 in a wide range of cases, should not be mandated by placing a judicial gloss on the statute's text." (Ibid.; Santantonio v. Westinghouse Broadcasting Co., supra, 25 Cal.App.4th at p. 125, fn. 7 [at its discretion, section 998 permits the trial court to consider a party's ability to pay costs, but "[n]o matter how well intended, to judicially graft such a requirement on the statute itself, goes beyond mere statutory interpretation and improperly invades the province of the Legislature"].) Unlike the plaintiffs in Clark, the issue of plaintiffs' inability to pay Dr. Shainsky's expert witness fees was presented to the trial court. (AR 33-34, 42.) Plaintiffs submitted a declaration of the financial impact that such an award would have on them. (AR 42.) Plaintiffs, however, did not make a sufficient factual record. Just as 29

37 was the case in Clark, here there is nothing in the record regarding the assets owned by plaintiffs. (See Clark v. Optical Coating Laboratory, Inc., supra, 165 Cal.App.4th at p. 186.) In any event, because the judgment of the trial court is presumed correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent (Denham v. Superior Court, supra, 2 Cal.3d at p. 564), this Court must presume the trial court considered and rejected the argument in exercising its discretion to award the full amount of expert witness fees requested. Appellants, therefore, have not met their burden to show an abuse of discretion in the amount of the award. III. A PER SE RULE BARRING A WAIVER OF COSTS IN SECTION 998 OFFERS IS CONTRARY TO THE PLAIN LANGUAGE AND PURPOSE OF THE STATUTE Ignoring well-settled law providing parties with the flexibility to craft section 998 compromise settlements based upon the circumstances of their case, appellants ask this Court to put a judicial gloss on the statute that a conditional offer of a waiver of costs is a per se violation of the good faith requirement. Neither the plain language of the statute, nor any legal precedent, support such a rule. A judgment entered pursuant to the acceptance of a section 998 offer is " 'a stipulated or consent judgment' " that is regarded as a contract between the parties and is construed like any other contract. (Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 184, citations omitted; Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, ) Section 998 permits the parties to 30

38 determine the nature of the judgment to be entered and to resolve any collateral matters, including costs. (See, e.g., Chinn v. KMR Property Management, at p. 184 [section 998 offer that is silent as to attorney fees cannot reasonably be interpreted to exclude recovery of fees and costs by the prevailing party].) Parties are free to make offers and counteroffers as with any contract negotiation. (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 472.) In Goodstein v. Bank of San Pedro, supra, 27 Cal.App.4th 899, the court concluded that section 998 did not indicate any legislative intent to limit the terms of a compromise settlement or the type of disposition. (Id. at p. 906.) Thus, the acceptance of an offer to compromise calling.for a voluntary dismissal with prejudice that would have finally disposed of the complaint (Code Civ. Proc., 58ld) is as effective as one calling for entry of judgment. (Goodstein v. Bank of San Pedro, at p. 906.) Even the judicially created restriction placed on section 998 that the offer must be made in good faith and reasonable is not contentbased. Rather, the good faith requirement is analyzed based upon the circumstances of the case. And, the trial judge who heard all of the evidence presented in the case remains in the best position to make this determination. (See Santantonio v. Westinghouse Broadcasting Co., supra, 25 Cal.App.4th at p. 117.) Appellants cite no case in which a court has articulated a content-based rule constricting a trial court's exercise of discretion when evaluating the good faith requirt'.ment of a section 998 offer. Appellants' per se rule was rejected almost 20 years ago in Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, The Jones 31

39 court held that the waiver of costs or "the absence of a net monetary sum as part of a pretrial statutory settlement offer" did not constitute a per se violation of the good faith requirement. (Ibid.) The Jones court noted that case law interpreting the good faith requirement, in addition to case law interpreting section 998 compromise agreements, afforded parties "latitude" in formulating settlement offers. (Ibid.) "[S]ection 998 does not confine an offeror to strict content-based rules, but rather imposes only the flexible parameters of the good faith requirement on the formulation of a section 998 offer." (Ibid.) Since Jones v. Dumrichob, supra, 63 Cal.App.4th 1258, courts have rejected any attempt to apply a per se rule barring conditional offers of a waiver of costs because, depending upon the circumstances of the case, a waiver can have significant value. (See Essex Insurance Co. v. Heck (2010) 186 Cal.App.4th 1513, 1529 [offer to waive costs may carry significant value to the plaintiff because, if accepted, it eliminates the plaintiff's exposure to expert witness costs]; Hartline v. Kaiser Hospitals, supra, 132 Cal.App.4th at p. 471 [there is no per se violation of the good faith requirement just because the offer does not tender a net monetary sum]; Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, [rejecting per se rule].) Appellants contend that a conditional offer of a waiver of costs forces the offeree to focus on the costs of trial rather than on the merits of their case, placing them in a "Catch-22," by denying them access to the courts for fear of significant expert witness costs if they do not prevail at trial. (AOB at 47.) The Legislature however, intended section 998 to operate in such a manner as to force parties to 32

40 assess whether to take the case to trial. (See Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at pp ) The legislative purpose of section 998 is to encourage settlement of individual cases on fair and reasonable terms, thereby save the courts and litigants the cost of trial. "[S]ection 998 achieves its purpose by punishing a party who fails to accept a reasonable offer from the other party." (Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d 388, 408, italics and citation omitted.) This legislative purpose is achieved if the offeree, at the pretrial stage, determines whether their case is sufficiently meritorious to take to trial. Depending upon the case, expert witnesses are one aspect of that analysis. There is no need for a per se rule barring conditional offers of a waiver of costs because the analysis of whether a conditional offer is reasonable and made in good faith is no different than the analysis of whether a monetary offer is reasonable. (See Adams v. Ford Motor Co., supra, 199 Cal.App.4th at pp ) In Adams, the court noted that the defendant's conditional offer could not be evaluated simply in comparison to the judgment the plaintiff sought, but must also be measured by comparing the likelihood that the offeree would prevail at trial. (Id. at pp ) The waiver of costs increased the settlement's potential value in the event the offeree did not secure a favorable judgment against the defendant. (Id. at p ) Just as with any other section 998 offer, the offeree is free to accept or reject a section 998 offer conditioned on a waiver of costs, but must do so with the understanding that the Legislature has spoken on the risks of refusing a reasonable section 998 offer. This Court should not impose 33

41 a content-based restriction to bar a waiver of costs in section 998 offers when the Legislature has not done so. Especially since the judicially created Elrod test sufficiently protects the offeree from coercive and unreasonable 998 offers, whether the offer constitutes a monetary settlement or a conditional waiver of costs, or a combination of both. 34

42 CONCLUSION The appeal should be dismissed because appellants did not file a notice of appeal following the postjudgment order awarding section 998 expert witness fees. But, even if this Court reaches the merits of the case, appellants have not met their daunting burden of showing that the trial court abused its discretion in awarding Dr. Shainsky her expert witness fees pursuant to section 998. Whether a section 998 offer is reasonable is evaluated under well-settled law that appellants either ignore or seek to change without any legal support. The judgment should be affirmed, including the $62, award of expert witness fees as costs. DATED: March 30, 2015 TAYLOR BLESSEY LLP AND COLE PEDROZA LLP By Kenneth R. Pedroza Maureen M. Home Attorneys for Defendant and Respondent, KAREN MICHELLE SHAINSKY, D.O. 35

43 CERTIFICATION Appellate counsel certifies that this brief contains 8,306 words. Counsel relies on the word count of the computer program used to prepare the brief. DATED: March 30, 2015 TAYLOR BLESSEY LLP AND COLE PEDROZA LLP By Kenneth R. Pedroza Maureen M. Home Attorneys for Defendant and Respondent, KAREN MICHELLE SHAINSKY, D.O. 36

44 EXHIBITS

45 ... ) ). (:~~. t~~. Couftf.f of Los Angeles, Department okoroner /.. Case Number: Investigator's Narrative \ Decec!Eint DEROGATIS, TARA LYNN lnfonnatlon Sources: Officer Ruiz -L.APD Hollywood Division (213) lnvutlgatlon: On at 0735 hours I was assigned the apparent SUICIDE death of Tara Lynn Derogatis for investigation. I departed the FSC at 0750 hours, arrived at th& locailon at 0820 hours, and comi*ted my Investigation at 1000 hours. Location: Death Loc:atlon: Residence N. Vine Slreet #3498, Los Angeles, CA Injury Location: Residence N. Vine Street #3496, Los Angeles, CA 90Q28 Scene Description: The location Is a Ullrd story apartment In a multi story, multi unlt'hlgh end apartment buudlng In Holywood. Spaclflcally, the decedent Is localed In a bedroom localed on tm northeast comer of the apartment. The bedroom app&ar1 $OIT1ewhat orderly but the apartment It.self was noted with multiple catclboard De>xes Indicative of someone just having moved In. Multiple blue/white. capsllla (Geodon) were seen cin the bed under the oovers and on 'the floor to the wast of the bed. Tan colored vomltus was also seen on the bed covers on the east side of the bed. The decedent was surrounded by a nightstand to the north, bed to frle El88t. door to the souitl, and desk to the west. Multiple medication.bottfea were seen In the nlghtstancl and on top of the bed comforter on the southeast comer, and a suicide note was found resting on the mid desk area. Evidence: Medical Evidence consisting of cronazepam, C}fllbalta, Cytomel, Geodcn, Hydrooodone, Levolhyroxlne, Lunesta, Metoclopramlde, Oxycodone, Seroquel, Slrattera, Tramadol, Trazodone. and Zolpldem were collected at the location on 3123/10 and later booked at the FSC. Body Examination: The decedent was examined at the location and seen lying supine on the carpeted bedroom floor with her head pointing south and legs pointing north. The decedent was lnlllallyfound siwng at 1he west edge cf the bed with her head slumped forward but was m~ed to the floor by the decedenrs boyfriend. The deceden~s arms were extended to her sides with beth legs fully extended. The decedent was clothed with white underwear, white pants, S!ld cut white undershlrl She was seen with tan vomitus in the nasal area, abrasion on tfle nose and possible abrasion to the right of tha nose, ET tube in the airway, deflbrillator pad on ttie right shoulder area and left abdomen side, six circular bandalds on the upper back area, IV llne on the Inner left elbow, and IV line on the right Inner elbow. In addilfon, the decedent was seen with multiple tattoos including!cond Image National Los Angeles Counly Coroner.., Los Angeles, CA Page

46 .. case Number coullof Los Angeles, Depa~ent o~lroner :.. Investigator's Narrative \. Decedent DEROGATIS, TARA LYNN a trtbal sun belcw the belly button area, a rad clrde on the Inner right wrist, angel watching raflectlan In the water In the loww mid back area, aid a red flower wllh an aalrologlcal sign on the Inner right enkle. Petechlal hemorrhaging was noted In the eyes. At OSSO hours the ambient temperature was 73 degrees whlle at 0852 hours the liver temperature was 94 degrees. At 0853 hours the rigor mdrtls was not dlscemlble and the llvidity was consistent with the position In which her body was found In. Identification: The decedent was Identified by her fhigerprlms. Next of Kin Nottflcatfon: Lli1da Derogatis, the decedent's mother, was notified by family friends on O and conflnned by me telephonically. Tlssue Donation: The decedent la not a viable candidate for donation due to exceeding time limitations for haivest. Autopsy Notification: None requested Date of Report 1cond Image National Los Angeles County Coroner, Los Angeles, CA Page

47 ~ I ~ i e.. "' ) COUNlY OF LOS ANGELES 3A..., -.~ MEDICAL EVIDENCE,.,!.._._,, ~ DEPARTMENT OF COROtER CASE# 2011MW)63.. DECeDENT'S NAME; DEROGATIS, TARAL DOD: INCOMING MODE:.. r g > ~ if &> c ~ Q g "' ) Ii l J ~ Drug Name Rx Number CLONAZEPAM CLONAZEPAM CYMBAL TA CYMBAL TA CYTOMEL GEODON HYDROCODONE HYDROCODONE LE VO THYROXINE LEVOTHYROXINE Date of Number Number Issue Issued Remaining / / allil D / Form TABLET TABLET TABLET TABLET TABl:ET TABLET Dosage 1MG O.SMG 60MG 30MG SMCO 20MG TABLET TABLET 1o-325 TABLET TABLET TABLET 7SMCG 75MCG Rx Directions Ui1WICEADAY 1.SlWICEADAY TRIALBOmE 11DAY 11DAY 11DAY 1-2 E\IERV 6H N3 NEED 1 EVERY 6AS NEED 1/DAY 1/DAY., Physician Pharmacy Phone/ Comments BOHN RITE AID BOHN RITEAID 32U7~ SHAINSKY Page 1 of3 RITE AID &-M66 WARING RITE AID ~. FEINSTEIN RITE AID SHAINSKY RITE AID SHAINSKY RITE AID WARING Rl1E AID 323-al'&-4466 WARING RITE AID ' ' ~.. Paraphernalia Description 36 LOOSE PILLS (Geoclon} Investigator: ANTHONY LOPEZ("88122) Dille:. 3123/2010..:...:. ~ I N U) l c.:i c

48 (/J ~ I ~ J COUNTY OF LOS ANGELES 3A :.J MEDICAL EVIDENCE J ~ DEPARTMENT OF CORONER CASE# 201CMl2063. DECEDENT'S NAME: - DEROGATIS, TARA L : DOD: ~2010 INCOMING MODE: ) '~ 9.. g > ::I 'ls if ~ ~ (') 0 a iil 1 g ~ 'lil ~ ~ Drug Name Rx Number LUNESTA METOCLOPRAMIDE OXYCODONE N SEROQUEL SEROOUEL STRATTERA RAMADOL TRAZEDONE TRAZOOONE Dabtof. Number Number Fonn Dosage Rx Issue Issued Remaining Directions 2110/ Q 2110/ or.zo /11/ / TABLET 3MG 11DAY TABLET 10MG 1 EVERY GAS NEED TABLET EVERY6 AS NEED MG TABLET 100MG 2 BY MOUTH AT BED TABLET 25MG 1-2.AS NE:ED FOR ANXI TABLET '40MG 1/DAY TABLET EVERY GAS NEED MB TABLET 50MG 1ASNEEDED TABLET liomg 1/DAY FOR INSOMNll\ Page2of3 f~ Physician Pharmacy Phonel Comments BOHN SHAINSKY RITE AID 323-a RITE AID 323-a7&446& FOR NAUSEA UNG CVS 32M BOHN RITE AID M4CI& BOHN RITE AID BOHN RITE AID RAMIN RfTE AID BOHN RITE AID BOHN RITE AID ti& Paraphernalia Description 36 LOOSE PILLS (Geadon) Investigator. ANTHONY LOPEZ (488122) Data: 3/23/ ~.p. I w c "'O cw - CD _.

49 (/) c. 3 ~ ~ a ~.. J COUNTY OF LOS.ANGELES... 3A J MEDICAL EVIDENCE CASEI.2011M12083 DEPARTMENT OF CORONER..., i I '-..,.../ DECEDENl'S NAME: DEROGATIS, TARA L ; DOD: 3123#2010 INCOMING MODE:... ~I 9' g ~ l ~ ::I... 0 ~ ::I <D i!i!:' cg }i" ~ Drug Name Rx Dato of Number Number Number Issue Issued Remaining ZOLPIDEM /.u Fonn Dosage Rx Directions TABLET 10MG 11DAY Page3of3 Physician Pharmacy Phonel comments. BOHN RITE AID ~1 fl Paraphernalia Description 36 LOOSE PILLS (Geoclan) Investigator: ANTHONY LOPEZ (488122) Date: 3123/2010 "'ti., - 'lil ~ I N "' w

50 ' I Dm Strength: OOS910!J3201 Substituted for: OXYCODONB-ACBTAMlNOPHBN TAK.n 1 TABLBTBYMOUTHBVBR.Y6HOURSAS BBDBDPORP 10D Refills: Supply Daya: 25 StoroNumber:!Yf32 NCPDPid: NPl Number: , NABP Number: Rx Number: Rx Status de: Pilled DAW: 0 Compound Cod&: 1 rlttondato: 03/22/2010 FltlD to: 03122/2010 Rx Mail Indicator: M Rx~ Coda: Refund lndl tar: Poat Vold Indic:ator: Transaction Da 03J2?./2010 Trwaction Time: 09:27:00 PM S Indicator: Y t Veri Initials: KCU tv Dato: Prescriber: SHAINSKY KARBN 8737 BBVBRLYBLVD WBSTHOLLYWOOD CA 0048 Phone: DBA: BS8S95609 Fax No: 116-1