APPEAL from a judgment of the Superior Court of Los Angeles County, William D. Stewart, Judge. (Los Angeles County Super. Ct. No. EC 046648)
The opinion of the court was delivered by: Flier, J.
CERTIFIED FOR PUBLICATION
Thomas Miller died on December 8, 2006. On February 22, 2008, his widow, Susanne Whatley-Miller, and his two daughters, Holly Elizabeth Miller and April Ann Miller (collectively, plaintiffs), filed a complaint for medical negligence and wrongful death against Michael A. Stark, M.D., Collin Cooper, M.D., and Verdugo Hills Hospital. Plaintiffs dismissed the hospital defendant with prejudice prior to trial. In the first trial, the jury returned a verdict in favor of Dr. Stark but was unable to reach a verdict as to Dr. Cooper.
In a second trial, the jury returned a verdict for plaintiffs and against Dr. Cooper. The trial court reduced the award of non-economic damages from $519,420 to the mandatory statutory amount of $250,000 and entered judgment for plaintiffs in the total amount of $1,437,276, consisting of $1,187,276 in economic damages and $250,000 in non-economic damages. The trial court later entered a conditional order granting Dr. Cooper's new trial motion on damages unless plaintiffs agreed to the reduction of the economic damages awarded by $238,369, namely, to a revised total award of economic damages in the amount of $948,907. On August 8, 2011, plaintiffs agreed and accepted the remittitur. On September 9, 2011, an amended judgment based on this acceptance was filed.
On appeal from the amended judgment, Dr. Cooper challenges the ruling of the trial court that plaintiffs' offer to compromise (Code Civ. Proc., § 998 (section 998)) was valid and made in good faith, which was the basis for the awards of expert fees as costs and prejudgment interest. He also contends the expert fees awarded were not necessary or reasonable.
We find Dr. Cooper's contentions to be unmeritorious and affirm the judgment. Initially, we conclude the acceptance requirements of section 998 were met by plaintiffs' document entitled "Acceptance of Plaintiffs' Offer to Compromise Pursuant to [Section] 998 and Civil Code [Section] 3291," which directed the clerk to enter judgment "pursuant to Plaintiff's Offer to Compromise which is attached hereto" and contained a place for the signature of Dr. Cooper's counsel. Moreover, the clear recital of the offer that each party was "to bear its own costs" was not rendered ambiguous by the acceptance document language that "[c]osts [are] to be submitted pursuant to cost bill filed by plaintiff(s)," which language is simply surplusage.
Additionally, the trial court did not abuse its discretion in rejecting Dr. Cooper's claim that the offer to compromise was made in bad faith, and thus, invalid. Prior to expiration of the offer, Dr. Cooper did not advise plaintiffs that, in order to evaluate their offer, he needed additional, particular information and/or more time. Dr. Cooper also has failed to carry his burden to demonstrate the expert fees awarded are unnecessary or unreasonable.
On June 20, 2008, plaintiffs served Dr. Cooper with an offer to compromise pursuant to section 998. In the offer, plaintiffs agreed to resolve all claims in the complaint against Dr. Cooper in consideration of $950,000 from him and that "[e]ach side [was] to bear its own costs." They advised that if this offer were "not accepted prior to trial or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn . . ." and that pursuant to Civil Code section 3291, a judgment in favor of plaintiffs more favorable than this offer "shall bear interest at the legal rate of 10% per annum calculated from the date of plaintiffs' offer."
At the same time, plaintiffs also served Dr. Cooper with a document entitled "Acceptance of Plaintiffs' Offer to Compromise Pursuant to [Section] 998 and Civil Code [Section] 3291," which provided: "The Clerk of the Court is hereby authorized and directed to enter Judgment against [Dr. Cooper] on the Complaint of Plaintiffs . . . in the amount of NINE HUNDRED FIFTY THOUSAND DOLLARS ($950,000.00) pursuant to Plaintiffs' Offer to Compromise which is attached hereto. Costs to be submitted pursuant to cost bill filed by plaintiff[s] within ten (10) days after entry of said Judgment." Under this recital is a place for the signature of Dr. Cooper's attorney and the date of signing.
On April 22, 2011, plaintiffs' attorney filed a memorandum of costs in the total amount to $530,315.99, of which $108,191 was listed in item 8.b. as expert fees and $411,100.31 was listed in item 13 as prejudgment interest from June 20, 2008, the date of the compromise offer, through April 29, 2011.*fn2
On May 11, 2011, Dr. Cooper filed a motion to strike and tax costs (motion to tax) associated with, among other items, the unaccepted compromise offer, i.e., prejudgment interest and the expert fees. He contended "[p]laintiffs' [section] 998 offer was extinguished as a result of the first trial" and the offer "was not made in good faith." He also challenged the expert fees, because "[n]one of the experts were court-ordered." He argued that "[i]f the court [were] inclined to allow expert witness costs, the costs . . . should be taxed."
On May 24, 2011, plaintiffs served Dr. Cooper with opposition to the motion to tax.
On June 3, 2011, Dr. Cooper filed a reply to the opposition.
On June 27, 2011, Dr. Cooper filed a supplemental brief in support of his motion to tax in which he argued the compromise offer did not meet the procedural requirements of ...