Licudine v. Cedars-Sinai Medical Center, 010319 CAAPP2, B286350

Docket Nº:B286350
Opinion Judge:HOFFSTADT, J.
Party Name:DIONNE LICUDINE, Plaintiff and Appellant, v. CEDARS-SINAI MEDICAL CENTER et al., Defendants and Respondents.
Attorney:Howard A. Kapp, Los Angeles, for Plaintiff and Appellant. Horvitz & Levy LLP, S. Thomas Todd, and Emily V. Cuatto, Burbank, for Defendant and Respondent.
Judge Panel:We concur: ASHMANN-GERST, Acting P. J., CHAVEZ, J.
Case Date:January 03, 2019
Court:California Court of Appeals

DIONNE LICUDINE, Plaintiff and Appellant,


CEDARS-SINAI MEDICAL CENTER et al., Defendants and Respondents.


California Court of Appeals, Second District, Second Division

January 3, 2019

APPEAL from an order of the Superior Court of Los Angeles County No. BC499153. David S. Cunningham, Judge. Affirmed.

Howard A. Kapp, Los Angeles, for Plaintiff and Appellant.

Horvitz & Levy LLP, S. Thomas Todd, and Emily V. Cuatto, Burbank, for Defendant and Respondent.


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.


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.”

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 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.


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...

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