Date: 01-06-2019

Case Style: Dionne Licudine v. Cedar-Sinai Medical Center

Case Number: B286350

Judge: Hoffstadt

Court: California Court of Appeals Second Appellate District, Division Two on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Howard A. Kapp

Defendant's Attorney: Thomas Todd, and Emily V. Cuatto

Description: A plaintiff who sues and prevails at trial is statutorily
entitled to prejudgment interest starting from the date she
makes a settlement offer under Code of Civil Procedure section
998 (a so-called “998 offer”)1 as long as that offer is “valid,” and
the subsequent verdict is “more favorable” than the rejected 998
offer. (Civ. Code, § 3291; Elrod v. Oregon Cummins Diesel, Inc.
(1987) 195 Cal.App.3d 692, 698 (Elrod).) A 998 offer is valid only
if, among other things, the offeror knew that the offeree had
reasonable access to the facts necessary to “intelligently evaluate
the offer.” (Id. at pp. 699-700; Najera v. Huerta (2011) 191
Cal.App.4th 872, 878 (Najera).) What factors are relevant in
deciding whether the offeree had enough facts to evaluate the
offer? Although courts should evaluate the totality of the facts
(Arno v. Helient Corp. (2005) 130 Cal.App.4th 1019, 1026 (Arno)),
we conclude that three factors are especially pertinent: (1) how
far into the litigation the 998 offer was made; (2) the information
available to the offeree prior to the 998 offer’s expiration; and (3)
whether the offeree let the offeror know it lacked sufficient
information to evaluate the offer, and how the offeror responded.
Applying these factors in this case, we conclude that the trial
court did not abuse its discretion in finding that the plaintiff’s
998 offer was not made in good faith. We accordingly affirm the
order denying plaintiff prejudgment interest.

1 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
3
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
In February 2012, Dionne Licudine (plaintiff) underwent
gallbladder removal surgery. The surgery was performed by Dr.
Ankur Gupta under the supervision of Dr. Brenden Carroll at
defendant Cedars-Sinai Medical Center (Cedars). The surgery
was intended to be minimally invasive, but Dr. Gupta nicked a
vein inside the abdominal cavity and caused substantial internal
bleeding. This necessitated a more invasive surgery that left
plaintiff with a large scar, a month-long hospitalization and a
chronic abdominal condition.
II. Procedural Background
A. Complaint
On January 15, 2013, plaintiff filed a medical malpractice
lawsuit against Cedars, Dr. Gupta, Dr. Carroll and the Regents of
the University of California (collectively, defendants). The
complaint was three pages long. With respect to liability,
plaintiff alleged that the defendants’ provision of medical services
was “below the standard of care.” With respect to damages,
plaintiff alleged only that she (1) had suffered “personal injuries
and related emotional distress,” (2) had incurred “medical,
nursing, health care, hospital and medical expenses,” (3) had
suffered a “loss of wages, profits, and earning capacity,” and (4)
incurred “other damages and injuries to be proven but which at
this time are unknown.” She prayed “for damages within the
jurisdiction of the Court.”

2 We draw these facts largely from our prior published
opinion in Licudine v. Cedars-Sinai Medical Center (2016) 3
Cal.App.5th 881 (Licudine I).
4
It was not until May 23, 2013 that plaintiff served her
complaint on Cedars. Cedars filed its answer on June 6, 2013,
along with a demand for written discovery and for a statement of
damages.
B. Section 998 offer
On June 11, 2013, plaintiff mailed Cedars an “Offer to
Compromise” pursuant to section 998. Specifically, she “offer[ed]
to allow judgment to be taken against Cedars and in favor of the
plaintiff in the amount of $249,999.99, plus legal costs.”
On June 27, 2013, Cedars sent plaintiff a written
“Objection” to the 998 offer. In its objection, Cedars noted that
plaintiff made her 998 offer only five days after Cedars had filed
its answer. As Cedars explained, this was “too soon for it to make
any determination as to whether plaintiff’s [998 offer] was
reasonable” because Cedars had “not had an opportunity to fully
investigate this action.”
The offer expired on July 16, 2013. (§§ 998, subd. (b)(2)
[offer expires 30 days after it is made], 1013, subd. (a) [five
additional days added for mailed offers].) Cedars did not accept
the offer prior to its expiration.
C. First trial and appeal
The matter proceeded to trial. A jury found Cedars liable
for malpractice and awarded plaintiff $1,045,000 in damages.
Both Cedars and plaintiff moved for a new trial on damages, and
the trial court granted both motions and set the matter for a new
damages trial. We affirmed the trial court’s orders. (Licudine I,
supra, 3 Cal.App.5th 881.)
D. Damages retrial
A jury returned a total damages award of $7,619,457,
comprised of $5,344,557 in economic damages and $2,274,900 in
5
noneconomic damages.3 Pursuant to the statutory cap on
noneconomic damages applicable in medical malpractice cases
(Civ. Code, § 3333.2), the trial court reduced the noneconomic
damages verdict to $250,000, yielding a total verdict of
$5,594,557.
E. Request for prejudgment interest
Plaintiff filed a memorandum of costs seeking, among other
things, $2,335,929.20 in prejudgment interest from the date of
her 998 offer to the date of judgment.4 Cedars filed a motion to
strike plaintiff’s prejudgment interest request, arguing that her
998 offer was “invalid” because it was “made so early in the
proceedings that [Cedars] did not have a fair opportunity to
intelligently evaluate it.” Following full briefing, the court held a
hearing. Toward the end of the hearing, plaintiff sought to
supplement her briefing, but the trial court denied her request.
~(RT 352-353)~ After further argument, the court struck
plaintiff’s request for prejudgment interest. In so ruling, the
court found that plaintiff’s 998 offer had been “premature”
because Cedars had not “ha[d] an adequate opportunity to
evaluate the damages in this case at the time of the 998 offer.”
F. Appeal
Plaintiff filed this timely appeal.

3 While the trial court miscalculated the total unreduced
damages award as $7,619,257, this miscalculation is of no
consequence. The court correctly calculated the total reduced
damages award.
4 The parties do not dispute plaintiff’s calculation of the
amount of prejudgment interest.
6
DISCUSSION
If a plaintiff makes an offer to settle a lawsuit pursuant to
section 998 that the defendant does not accept, and if the plaintiff
ultimately obtains a “more favorable judgment,” she is entitled to
have the defendant pay (1) the costs of her expert witnesses
incurred after the 998 offer was made (§ 998, subds. (b) & (d)),
and (2) prejudgment interest at the rate of 10 percent starting
from the date of the 998 offer (Civ. Code, § 3291; Wilson v. WalMart
Stores, Inc. (1999) 72 Cal.App.4th 382, 392-393). However,
a plaintiff is entitled to this additional recovery only if her 998
offer is “valid.” (Barella v. Exchange Bank (2000) 84 Cal.App.4th
793, 799 (Barella); Chen v. Interinsurance Exchange of the
Automobile Club (2008) 164 Cal.App.4th 117, 121.) Plaintiff
argues that the trial court erred in ruling that her 998 offer was
not valid. Where, as here, the underlying facts are disputed, we
review the trial court’s ruling solely for an abuse of discretion.
(Timed Out LLC v. 13359 Corp. (2018) 21 Cal.App.5th 933, 942
(Timed Out).) As the appellant, plaintiff bears the burden of
proving that the trial court abused its discretion. (Najera, supra,
191 Cal.App.4th at p. 877.)
I. The Pertinent Law on the Validity of 998 Offers
A 998 offer is valid only if it is made in “good faith.” (Elrod,
supra, 195 Cal.App.3d at p. 698; Wear v. Calderon (1981) 121
Cal.App.3d 818, 821 (Wear); Regency Outdoor Advertising, Inc. v.
City of Los Angeles (2006) 39 Cal.4th 507, 531 (Regency)
[assuming “good faith” is required].) A 998 offer is made in good
faith only if the offer is “‘realistically reasonable under the
circumstances of the particular case’” (Elrod, at p. 698, quoting
Wear, at p. 821)—that is, if the offer “carr[ies] with it some
reasonable prospect of acceptance” (Regency, at p. 531).
7
Although section 998’s text does not itself condition validity
upon an offeror’s good faith, such a requirement is necessarily
implied by the statute’s purpose: Section 998 is meant “to
encourage the settlement of lawsuits prior to trial” (T.M. Cobb v.
Superior Court (1984) 36 Cal.3d 273, 280; Poster v. Southern
California Rapid Transit Dist. (1990) 52 Cal.3d 266, 270), and it
uses the proverbial “stick” to do so: “Accept this offer or you will
face additional financial consequences for rejecting it.” (Elrod,
supra, 195 Cal.App.3d at p. 699 [“Section 998 achieves its aim by
punishing a party who fails to accept a reasonable offer from the
other party”].) If a section 998 offer has no “reasonable prospect
of acceptance,” an offeree will reject the offer no matter what and
applying section 998’s punitive “stick” will do nothing to
encourage settlement. (Elrod, at p. 699.) Applying the “stick” in
such instances would instead encourage litigants to “game the
system by making . . . offers they can reasonably expect the
[offeree] will refuse,” allowing them “to benefit from a no-risk
offer made for the sole purpose of later recovering large expert
witness fees” and, if they are plaintiffs, prejudgment interest.
(Vick v. DaCorsi (2003) 110 Cal.App.4th 206, 211; Jones v.
Dumrichob (1998) 63 Cal.App.4th 1258, 1262-1263; Elrod, at p.
699.) The good faith requirement prevents this perversion of
section 998. (Menees v. Andrews (2004) 122 Cal.App.4th 1540,
1544 [“The courts have uniformly rejected an interpretation of
section 998 which would allow offering parties to . . . ‘game the
system.’”]; Westamerica Bank v. MBG Industries, Inc. (2007) 158
Cal.App.4th 109, 129 [same].)
Whether a section 998 offer has a reasonable prospect of
acceptance is a function of two considerations, both to be
evaluated in light of the circumstances “at the time of the offer”
8
and “not by virtue of hindsight.” (Burch v. Children’s Hospital of
Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537,
548; Fortman v. Hemco (1989) 211 Cal.App.3d 241, 264; Elrod,
supra, 195 Cal.App.3d at p. 699.) First, was the 998 offer within
the “range of reasonably possible results” at trial, considering all
of the information the offeror knew or reasonably should have
known? (Elrod, at pp. 699-700.) Second, did the offeror know
that the offeree had sufficient information, based on what the
offeree knew or reasonably should have known, to assess whether
the “offer [was] a reasonable one,” such that the offeree had a
“fair opportunity to intelligently evaluate the offer”? (Id. at p.
699; Najera, supra, 191 Cal.App.4th at p. 878.) These two
considerations assess whether the offeror knew that the 998 offer
was reasonable, first, from the offeror’s perspective and, second,
from the offeree’s perspective. In light of this focus on the
reasonableness of the offeror’s conduct in making the 998 offer
(which makes sense because the issue is the validity of the offer
in the first place), whether the offeree acted reasonably in
rejecting that offer is irrelevant. (Arno, supra, 130 Cal.App.4th at
p. 1027; People ex rel. Lockyer v. Freemont General Corp., Inc.
(2001) 89 Cal.App.4th 1260, 1270-1271.)
In assessing whether the 998 offeror knew that the offeree
had sufficient information to evaluate the offer (the second
consideration), the offeree needs information bearing on the issue
of liability as well as on the amount of damages because these are
the issues upon which a verdict would rest and because the 998
offer, if accepted, would be in lieu of that verdict. (Nelson v.
Anderson (1999) 72 Cal.App.4th 111, 135 (Nelson) [liability
relevant]; Barba v. Perez (2008) 166 Cal.App.4th 444, 450-451
(Barba) [damages relevant]; see generally Aynes v. Winans (1948)
9
33 Cal.2d 206, 211 (dis. opn. of Carter, J.) [“The essential issues
for the jury [are] liability and amount of damages . . .”].) In
assessing the information available to the offeree, courts are to
look to all of the relevant circumstances. (Arno, supra, 130
Cal.App.4th at p. 1026.) The pertinent cases have nevertheless
identified a number of specific circumstances to be examined.
First, how far into the litigation was the 998 offer made?
Although section 998 fixes no “minimum period that must elapse
following commencement of suit for service of a valid 998 offer”
(Barba, supra, 166 Cal.App.4th at p. 452),5 a litigant receiving a
998 offer at the time a lawsuit is filed or soon thereafter is, as a
general matter, less likely to have sufficient information upon
which to evaluate that offer. (E.g., Najera, supra, 191
Cal.App.4th at p. 875 [receiving offer at same time complaint is
served]; cf. Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103,
1113 (Whatley-Miller) [receiving offer two months after complaint
was served].)
Second, what information bearing on the reasonableness of
the 998 offer was available to the offeree prior to the offer’s
expiration? Information may be obtained (1) by virtue of prior
litigation between the parties (Bender v. City of Los Angeles
(2013) 217 Cal.App.4th 968, 989 [civil lawsuit against police
followed criminal prosecution of plaintiff resulting in acquittal]);
(2) through pre-litigation exchanges between the parties (Barba,
supra, 166 Cal.App.4th at pp. 450-451 [pre-litigation letter

5 For this reason, we decline Cedars’s invitation to erect
either a rule or a presumption that any 998 offer in a malpractice
lawsuit is invalid if not served at least 90 days after a prelitigation
demand pursuant to section 364 or, absent such a
demand, at least 90 days after the complaint was served.
10
explaining offeror’s medical expenses]; Aguilar v. Gostischef
(2013) 220 Cal.App.4th 475, 482 [same]); (3) through postcomplaint
discovery in the case (Whatley-Miller, supra, 212
Cal.App.4th at p. 1113); or (4) by virtue of a pre-existing
relationship between the parties that yields a “free flow of
information” (Barba, supra, 166 Cal.App.4th at p. 450 [parties
had “close, semi-familial relationship”]).
Third, did the party receiving the 998 offer alert the offeror
that it lacked sufficient information to evaluate the offer and, if
so, how did the offeror respond? An offeree may alert the offeror
by (1) requesting discovery, either formally or informally (Barba,
supra, 166 Cal.App.4th at pp. 450-451); (2) asking for an
extension of the 998 offer’s deadline (cf. Whatley-Miller, supra,
212 Cal.App.4th at p. 1107, 1114); or (3) otherwise objecting to
the offer (Najera, supra, 191 Cal.App.4th at p. 875). If, after
hearing the offeree’s concerns, the offeror’s response is less than
forthcoming, “such obstinacy” is “potent evidence that [the] offer
was neither reasonable nor made in good faith.” (Barba, supra,
166 Cal.App.4th at p. 451; Najera, supra, 191 Cal.App.4th at p.
878.)
Although the party making a 998 offer generally has the
burden of showing that her offer is valid (Timed Out, supra, 21
Cal.App.5th at p. 942; Barella, supra, 84 Cal.App.4th at p. 799),
it is the 998 offeree who bears the burden of showing that an
otherwise valid 998 offer was not made in good faith. (Elrod,
supra, 84 Cal.App.4th at p. 700; Nelson v. Anderson (1999) 72
Cal.App.4th 111, 134 (Nelson).)
11
II. The Trial Court Did Not Abuse Its Discretion In
Finding That Plaintiff’s 998 Offer Was Not Made In Good
Faith
A. Application of pertinent factors
Plaintiff’s 998 offer to settle for $249,999.99 was
undoubtedly within the “range of reasonably possible results” at
trial. The jury’s $5,594,557 verdict constitutes prima facie
evidence of such (Elrod, supra, 195 Cal.App.3d at p. 700), and
Cedars has offered no evidence to the contrary.
Consequently, and as the trial court properly recognized,
whether plaintiff’s 998 offer in this case was made in good faith
turns entirely on the second consideration bearing on good
faith—that is, on whether Cedars had sufficient information to
assess whether plaintiff’s $249,999.99 offer was a reasonable one.
The trial court did not abuse its discretion in concluding that
Cedars lacked sufficient information. Each of the factors
identified in the case law support the trial court’s determination.
As to timing, plaintiff made her 998 offer just 19 days after
serving Cedars with her complaint and just five days after
Cedars filed its answer.
As to the availability of information, Cedars had very little
information available to it on the issues of liability and the
amount of damages prior to the date plaintiff’s 998 offer expired.
Plaintiff’s three-page complaint was “bare bones,” as it listed no
specifics as to the injuries she suffered or the amount of damages
she sought. Nor was this skeletal complaint fleshed out by the
pre-litigation notice required by section 364, which would have
set forth the “legal basis of [her] claim and the type of loss
sustained, including [the] specific . . . nature of injuries suffered”
(§ 364, subds. (a) & (b)), because plaintiff never filed such a
12
notice.6 No depositions had been taken. But Cedars was not
entirely bereft of information. Plaintiff had sent Cedars a letter
the day before she made her 998 offer (1) stating that her doctors’
negligence was “self-evident” and that her “injuries are well
documented and far exceed the” $250,000 cap on noneconomic
damages, and (2) attaching photographs of plaintiff before and
after the surgery. Plaintiff also provided some written discovery
to Cedars prior to her offer’s expiration—namely, (1) she
forwarded to Cedars her answers to the general interrogatories
propounded by Dr. Carroll, but submitted to the trial court only
the cover sheet for those answers and not the answers
themselves, and (2) she responded to Cedars’s request for
documents on the day before her 998 offer expired. Those
responses contained no details on the issues of liability and the
amount of damages except (1) to indicate that plaintiff was not
making a claim for “lost earnings” and that plaintiff’s “earning
capacity may be affected as [she] has had to delay starting law
school for at least two years,” (2) to tell Cedars to contact
plaintiff’s insurance carrier to obtain her medical bills, and (3) to
tell Cedars to look at its own records. And Cedars also had in its
possession plaintiff’s 9,662-page medical chart, which included (1)
the operation report noting the nicked vein and internal bleeding,
and (2) the records indicating her extended stay and care at the
hospital.
The trial court did not abuse its discretion in concluding
that this information, considered in its totality, did not provide
Cedars with sufficient information with which to evaluate the

6 What is more, plaintiff’s attorney misrepresented to the
trial court in a sworn affidavit that he had filed a section 364
notice after certifying to Cedars that he had not.
13
reasonableness of plaintiff’s section 998 offer. On the question of
liability, this information did not indicate which doctor (Dr.
Gupta or Dr. Carroll) was responsible for any negligence or the
extent to which plaintiff’s injuries were related to or exacerbated
by any pre-existing medical conditions she might have. On the
question of the amount of damages, this information did not
speak at all to plaintiff’s pain and suffering, to the amount of her
medical expenses (including any offset due to insurance), or to
any possible loss in her earning capacity. Indeed, plaintiff’s
response to Cedars’s request for documents indicated she was
unsure whether she would suffer any loss of earning capacity.
As to providing notice of the lack of sufficient information
and any response to that notice, Cedars alerted plaintiff to its
concern that it was “too soon for it to make any determination as
to whether” her 998 offer was reasonable, and plaintiff never
responded.
Plaintiff responds that Cedars had sufficient information to
evaluate her section 998 offer.
As a threshold matter, she argues that any absence of
information regarding her economic damages is of no consequence
because her 998 offer was an offer only to settle the noneconomic
damages portion of her case for $249,999.99, which is just below
the statutory cap for noneconomic damages in medical
malpractice cases. We reject this argument because it
contradicts the plain language of the 998 offer itself, which offers
to “allow judgment to be taken against [Cedars] . . . in the
amount of $249,999.99” without any hint that the offer would
settle only part of the case. Even if we were to accept plaintiff’s
invitation to retroactively rewrite her 998 offer, Cedars still
lacked sufficient information to make an intelligent
14
determination as to a reasonable amount of noneconomic
damages for the reasons described above. What is more,
plaintiff’s conduct in making an offer as to noneconomic damages
that, in her counsel’s own words, was “one penny below” the
statutory cap for such damages mere weeks after serving Cedars
raises more than a specter of gamesmanship, which, as noted
above, is antithetical to the legitimate operation of section 998.
Even if we reject her retroactively narrowed reading of her
998 offer, plaintiff continues, Cedars still had enough information
to evaluate a global settlement offer because (1) Cedars had
access to her 9,662-page medical chart, (2) Cedars conducted a
peer review of the operation that provided greater information,
(3) Cedars had the answers to Dr. Carroll’s form interrogatories,
and (4) any shortfall of information regarding damages could not
in any event invalidate her 998 offer because Cedars’s objection
never used the word “damages.”
However, none of these sources provided Cedars with
sufficient information to evaluate plaintiff’s offer.
Plaintiff’s medical chart, as noted above, supplied some
information regarding liability. But it left several issues
unaddressed, including plaintiff’s loss of earning capacity and her
pain and suffering.
Plaintiff provided no evidence that Cedars ever conducted a
peer review regarding the operation. All she offers is her
counsel’s assertion that “of course” Cedars did.7
We cannot evaluate whether plaintiff’s answers to Dr.
Carroll’s form interrogatories provided Cedars with sufficient

7 Thus, the parties’ debate regarding the applicability of
Evidence Code section 1157, the evidentiary privilege applicable
to such peer reviews, is irrelevant.
15
information because those answers were never made part of the
record in this case. Plaintiff asserts that she tried to make them
a part of the record and that the trial court was wrong to deny
her request to supplement her briefing with the interrogatory
answers. Plaintiff’s request to supplement was, in effect, a
motion to amend her pleading; as such, it was governed by
section 473, subdivision (b). (Garcia v. Hejmadi (1997) 58
Cal.App.4th 674, 683-684 [request to supplement pleading so
governed]; Puppo v. Larosa (1924) 194 Cal. 721, 724 [same, as to
motion to tax costs].) The discretionary relief portion of this
statute applicable here only permits a trial court to allow an
amendment necessitated by an attorney’s mistake or
inadvertence if it is an error that “‘anyone could have made’”; put
differently, errors due to an attorney’s failure to “meet the
professional standard of care, such as failure . . . to properly
advance an argument” provide no basis to amend. (Zamora v.
Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) In
this case, plaintiff’s attorney told the trial court that he “didn’t
see [the actual discovery responses forwarded to Cedars] as
necessary,” and this statement confirms that the attorney’s
decision to include the cover letter accompanying the responses
but to omit the responses themselves was strategic and tactical
rather than a mistake any layperson could have made.
Plaintiff’s criticism of Cedars’s objection lacks merit
because the plain language of that document registered a general
objection to the timing of plaintiff’s 998 offer that applied with
equal force to the issues of liability and to the amount of
damages. Cedars’s purported failure to use the words “liability”
or “damages” did not somehow narrow the scope of its otherwise
inclusive objection.
16
B. Plaintiff’s further arguments
Plaintiff makes what boils down to three further categories
of arguments for reversal.
She contends that Cedars effectively waived any right to
object to the lack of information because it never asked her to
extend the deadline of her section 998 offer. We reject this
contention. Although a request for a continuance is one method
by which a section 998 offeree may put the offeror on notice that
it lacks sufficient information to evaluate the offer, it is not the
only method of doing so; Cedars’s objection sufficed.
She asserts that the trial court erred in refusing to consider
evidence that (1) Cedars’s attorney had a practice of making
“boilerplate prematur[ity] claim[s]” to section 998 offers in other
cases, and (2) Cedars would have rejected plaintiff’s 998 offer
even if Cedars had possessed sufficient information to evaluate it.
We reject each assertion. Cedars’s position regarding the timing
of section 998 offers in other cases (and, relatedly, whether
plaintiff was electing to disregard Cedars’s objection in this case
in light of its position in the other cases) is neither here nor there
because whether a party’s 998 offer is made in good faith turns
on the particular circumstances of each case. (Arno, supra, 130
Cal.App.4th at p. 1024.) Further, what Cedars might or might
not have done had plaintiff’s offer been valid does not affect
whether the offer was valid in the first place; here, it was not.
And plaintiff posits that the trial court impermissibly
required her to prove her good faith rather than requiring Cedars
to prove its absence. As noted above, the law squarely places the
burden on Cedars. (E.g., Elrod, supra, 84 Cal.App.4th at p. 700.)
However, plaintiff’s position that the trial court shifted that
burden is not supported by the record. At no point did the trial
17
court indicate that the burden rested with plaintiff, and the
questions the court posed to plaintiff during the hearing sought
plaintiff’s input on how to refute the points Cedars had already
made in support of its motion.

Outcome: The order striking plaintiff’s request for prejudgment interest is affirmed. Cedars is entitled to its costs on appeal.

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