Gregory v. Abou-Samra CA2/6

Filed 3/9/15 Gregory v. Abou-Samra CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

CARLY GREGORY, 2d Civil No. B253223 (Super. Ct. No. 56-2011-00405596-CU- Plaintiff and Appellant, MM-VTA) (Ventura County) v.

MOUSTAPHA ABOU-SAMRA, M.D., et al.,

Defendants and Respondents.

Carly Gregory appeals from a judgment awarding costs in favor of Moustapha Abou-Samra, M.D., and Moustapha Abou-Samra, M.D., a professional corporation. Appellant contends the court erred in awarding respondent expert witness fees pursuant to Code of Civil Procedure section 9981 because respondent's offer to compromise was neither reasonable nor made in good faith. We affirm. Facts and Procedural History In December 2009, appellant underwent surgery for a brain tumor. Dr. Aria Sabit was the surgeon, and respondent, Dr. Sabit's employer, acted as assistant surgeon. Appellant subsequently filed a complaint against Dr. Sabit, respondent, and Community Memorial Health Care System (CMHCS) for negligence. Dr. Sabit was

1 Undesignated statutory references are to the Code of Civil Procedure.

also sued for fraud and intentional infliction of emotional distress. The complaint was later amended to add a claim for punitive damages against Dr. Sabit, based on the allegation he intentionally misled appellant to believe her tumor had been removed. She also alleged that respondent knew the tumor had not been removed and failed to provide proper follow-up treatment. Appellant settled with Dr. Sabit for approximately $530,000, and with CMHCS for $20,000. After these settlements, respondent served appellant with an offer to compromise pursuant to section 998. Respondent offered to waive all statutory costs incurred to date and all rights to sue appellant and her attorney for malicious prosecution, in exchange for a dismissal with prejudice in favor of respondent. Appellant allowed the offer to expire without acceptance. Appellant continued to litigate the matter against respondent and both parties took several depositions. On the eve of trial, appellant dismissed the action against respondent without prejudice. Respondent filed a memorandum of costs seeking $12,866 in expert witness fees as the prevailing party. (§§ 998, subd. (c)(1), 1032, subd. (a)(4).) Appellant moved to strike and tax costs on the ground that respondent's offer to compromise was neither reasonable nor made in good faith. Following a hearing, the court found respondent's section 998 offer to be both reasonable and in good faith. Judgment was entered in respondent's favor in the amount of $19,715, which includes the full $12,866 in claimed expert witness fees. Discussion Appellant contends the court erred in ordering her to pay respondent's expert witness fees because the section 998 offer to compromise was "patently unreasonable." She also claims the court's ruling is based on its erroneous conclusion that respondent was not "automatically . . . liable" for Dr. Sabit's fraudulent conduct under the doctrine of respondeat superior. We are not persuaded. A section 998 offer must be made in good faith in order to be valid. Good faith requires that the offer be reasonable under the circumstances of the case