Rizk v. Douglas

Filed 11/30/05 Rizk v. Douglas CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ABDUL MASSIH RIZK et al., Plaintiffs and Appellants, v. AMY E. DOUGLAS, Defendant and Respondent.

B179811 (Los Angeles County Super. Ct. No. EC036974)

APPEAL from a judgment of the Superior Court of Los Angeles, Zaven V. Sinanian, Judge. Affirmed.

Law Offices of Nolan F. King and Nolan F. King for Plaintffs and Appellants.

Schaffer, Lax, McNaughton & Chen and Russell A. Franklin for Defendant and Respondent.

_________________

INTRODUCTION

In this personal injury action, plaintiffs Abdul Massih Rizk and Sharon Rizk appeal from the “Judgment Re Costs” entered in favor of defendant Amy E. Douglas in the amount of $11,276.25, which includes expert fees. The judgment re costs was entered following plaintiffs’ rejection of defendant’s statutory offers to compromise made pursuant to Code of Civil Procedure section 998 (section 998) and a jury trial that resulted in a judgment for defendant. On appeal, plaintiffs challenge the validity of defendant’s statutory offer as well as the reasonableness of her offer to plaintiff Abdul Massih Rizk. We affirm the judgment re costs.

BACKGROUND[1]

Plaintiffs filed their original complaint against defendant on June 6, 2003 and their first amended complaint on September 24, 2003.[2] In February 2004, defendant served each plaintiff with a statutory offer to compromise. Defendant offered to settle with plaintiff Abdul Massih Rizk for $12,980.00 and with plaintiff Sharon Rizk for $2,020.00. Plaintiffs did not accept the offers, and the matter proceeded to trial. On July 16, 2004, the jury returned a defense verdict. Judgment in favor of defendant was filed on August 6, 2004.[3]

On August 11, 2004, defendant served plaintiffs with a memorandum of costs in which she sought costs totaling $18,906.56. Of this amount, $12,372.00 was sought as expert fees. Plaintiffs thereafter filed a motion to strike and/or tax costs. With respect to the expert fees sought, plaintiffs argued in conclusionary form without citation to legal authority that defendant’s section 998 offer “was improper and not recognized as a valid offer by law.”

The trial court disagreed and awarded defendant expert fees but reduced the amount sought to $5,500.[4] The total costs awarded to defendant were $11,276.26. Judgment was entered, and this appeal followed.

CONTENTIONS

Plaintiffs contend that no expert fees were recoverable by defendant as a matter of law, in that her statutory offers to compromise were invalid on their face. Plaintiffs further contend that defendant’s offer to settle with plaintiff Abdul Massih Rizk for $12,980.00, in a case with medical damages exceeding $50,000, was not a reasonable settlement offer. For the reasons that follow, we discern no merit to either of these contentions.

DISCUSSION

Validity of Statutory Offer

Before we address plaintiffs’ contention that the section 998 offers served by defendant in February 2004 were invalid, we set forth the details of the challenged offers. Defendant’s offer to plaintiff Abdul Massih Rizk provides: “PLEASE TAKE NOTICE that, pursuant to Cal. Code of Civil Proc. § 998, and Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, defendant AMY E. DOUGLAS, in full and final settlement of plaintiff ABDUL MASSIH RIZK’s claim made in the above-captioned action, hereby offers to pay plaintiff ABDUL MASSIH RIZK, the total sum of Twelve Thousand, Nine Hundred and Eighty Dollars and Zero Cents ($12,980.00) pursuant to Abellon v. Hartford Ins. Co. (1985) 167 Cal.App.3d 21 and United Services Automobile Assn. v. Warner (1976) 64 Cal.App.3d 957, 964-65.

“This Statutory Offer to Compromise (‘Offer’) by defendant AMY E. DOUGLAS is made and conditioned upon exchange of each of the following:

“1. The entry of a Request for Dismissal, with prejudice, of plaintiff ABDUL MASSIH RIZK’s Cause of Action of Negligence contained within his First Amended Complaint in favor of defendant AMY E. DOUGLAS; and

“2. The execution and transmittal of a Release of All Claims by plaintiff ABDUL MASSIH RIZK in favor of defendant AMY E. DOUGLAS.

“In addition, this Offer is further made and conditioned upon the following:

“1. This Offer shall not constitute an admission of liability by or on behalf of defendant AMY E. DOUGLAS by whom all liability is expressly denied; and

“2. Each party shall bear its own costs and attorney’s fees.”

Defendant offered to settle with plaintiff Sharon Rizk, as well, but for the lesser amount of $2,020.00. Although the second page of defendant’s offer to plaintiff Sharon Rizk is missing from the appellate record, we presume the conditions for settlement were the same as those set forth in the offer extended to her husband.

On appeal, plaintiffs challenge only that portion of the judgment re costs awarding defendant expert fees. Plaintiffs contend defendant could not recover such fees, in that her section 998 offers to compromise were invalid on their face. Specifically, plaintiffs challenge the inclusion of case citations in the offers, the lack of specificity in the offers, the release language contained in the offers, the failure to include the actual release with the offer, and the language requiring plaintiffs to request entry of dismissal. Plaintiffs did not argue that defendant’s offers were invalid for all these reasons below, however.

In their motion to tax costs, plaintiffs’ argued in conclusionary fashion that defendant was not entitled to recover expert fees in part because her section 998 settlement offer “was improper and not recognized as valid by law.” As defendant aptly pointed out in her opposition to the motion to tax costs, plaintiffs provided no legal argument and cited no case authority establishing that her offer was improper or invalid.

In their reply to defendant’s opposition, plaintiffs argued only that defendant’s offer was invalid, in that it did not provide for entry of judgment against defendant. Specifically, plaintiffs took issue with the provision of the offers that called for plaintiffs to request dismissal of their action. Plaintiffs also challenged the condition in the offers that plaintiffs release all claims against defendant and the language in the offers stating that the offers did not constitute an admission of liability on the part of defendant, who in fact denied all liability. According to the record before us, they made no other objections to the offers’ validity.

On appeal, we address only plaintiffs’ challenges to the release language contained in the offers and the requirement that they request the dismissal of their action. Plaintiffs do not challenge the non-admission of liability provision on appeal. We deem plaintiffs’ remaining challenges, which have been raised for the first time on appeal, to be waived and will not consider them.[5] (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249.)

Turning first to plaintiffs’ challenge to the release language, we deem the challenge to be meritless. Defendant’s settlement offer was conditioned on “[t]he execution and transmittal of a Release of All Claims” by plaintiffs “in favor of defendant AMY E. DOUGLAS.” Although the quoted provision does not contain language limiting the release to the claims in this particular case, the introductory language of the offers makes it clear that the offers being made were intended to be a “full and final settlement” of plaintiffs’ claims “in the above-captioned action.” In light of this language, “the offer[s] reasonably cannot be construed to apply to other litigation.” (Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 907.) Consequently, we reject plaintiffs’ argument that defendant sought a general release of any and all existing or future claims, including those beyond the scope of this particular litigation.

We also reject plaintiffs’ challenge to the settlement offers’ requirement that they file a request for dismissal of their action. In plaintiffs’ view, section 998 requires the entry of judgment in their favor for an agreed upon amount. We disagree. As observed in Goodstein v. Bank of San Pedro, supra, 27 Cal.App.4th at page 906, “[t]he word ‘judgment’ in . . . section 998 indicates that the statute contemplates that an offer to compromise which is accepted will result in the final disposition of the underlying lawsuit; the statute does not indicate any intent to limit the terms of the compromise settlement or the type of final disposition. The acceptance of [a] . . . compromise agreement calling for a voluntary dismissal with prejudice would . . . finally dispose[] of the complaint as effectively (see Code Civ. Proc., § 581d) as one calling for entry of judgment in favor of plaintiff.” Plaintiffs have failed to demonstrate that defendant’s statutory offers to compromise were invalid.

Reasonableness of Settlement Offer

Next, plaintiffs contend, as they did below, that defendant’s offer to plaintiff Abdul Massih Rizk to settle a case with medical damages exceeding $50,000 was not a reasonable settlement offer. Plaintiffs urge this court to conclude that defendant’s offer of $12,980.00 was a “token offer” not made in good faith within the meaning of section 998. We decline to do so. “‘Where, as here, the offeror obtains a judgment more favorable than [her] offer, the judgment constitutes prima facie evidence showing the offer was reasonable . . . .’ [Citation.]” (Goodstein v. Bank of San Pedro, supra, 27 Cal.App.4th at p. 909.) Plaintiffs have failed to demonstrate that defendant’s offer to settle with plaintiff Abdul Massih Rizk was unreasonable.

The judgment is affirmed.

NOT TO BE PUBLISHED

SPENCER, P.J.

We concur:

MALLANO, J.

ROTHSCHILD, J.

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[1] The parties’ briefs are full of factual statements that are unsupported by references to the record on appeal. We disregard all of these statements.

[2] The original complaint and the operative first amended complaint are not part of the record on appeal.

[3] Neither the jury’s verdict nor the ensuing judgment is part of the record.

[4] The trial court awarded defendant expert witness costs pursuant to section 998, subdivision (c)(1), which provides “[i]f an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award,” the trial court “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.”

[5] In their briefs, plaintiffs refer to a motion for protective order that they filed in November 2003. This motion makes reference to an offer to compromise served on October 24, 2003 and an amended statutory offer to compromise sent out on October 30, 2003, neither of which is contained in the appellate record. In their motion, plaintiffs’ sought a protective order providing that they did not have to respond to defendant’s October compromise offers, which plaintiffs characterized as “defective and unauthorized.” The court never ruled on this motion, however. Although a hearing had been noticed for December 19, 2003, the motion ultimately was placed off calendar. Plaintiffs’ motion for a protective order thus has no relevance to this appeal.