Filed 9/10/15 De Rogatis v. Shainsky CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


LINDA DE ROGATIS, et al.,                                           B254024

         Plaintiffs and Appellants,                                 (Los Angeles County
                                                                    Super. Ct. No. BC457891)
         v.

KAREN MICHELLE SHAINSKY,

         Defendant and Respondent.



         APPEAL from the judgment of the Superior Court of Los Angeles County. Jan
Pluim, Judge. Appeal dismissed.
         The Arkin Law Firm, Sharon J. Arkin, for Plaintiffs and Appellants.
         Cole Pedroza, Kenneth R. Pedroza and Maureen M. Home; Taylor Blessey,
Raymond L. Blessey, Patricia M. Tazzara and Anna Chung, for Defendant and
Respondent.
                                      INTRODUCTION
         Plaintiffs (the Estate and parents of Tara De Rogatis, hereinafter plaintiffs) filed a
complaint against Dr. Karen Shainsky (defendant) alleging medical malpractice arising
out of the suicide of their daughter Tara by a drug overdose. Tara suffered from both
mental illness and chronic pain. Defendant, a rheumatologist, treated her for pain
management associated with fibromyalgia. She prescribed a large quantity of oxycodone,
a painkiller, and the next day Tara was found dead from an overdose of medications,
including oxycodone. Defendant argued she had no liability because the oxycodone
found in Tara’s system was prescribed by a Dr. Ung, the prescription defendant issued
had not been picked up by Tara, and the coroner did not find defendant’s oxycodone
prescription bottle at the scene.
         The jury returned a unanimous defense verdict. The December 2, 2013, judgment
provided defendant “shall recover . . . costs of suit” but left blank a space for the amount.
Plaintiffs filed a notice of appeal on January 22, 2014. The notice was filed after
defendant had filed a memorandum of costs seeking expert witness fees under Code of
Civil Procedure section 998,1 but well before any hearing or ruling on plaintiffs’ motion
to tax costs challenging those expert witness fees. The plaintiffs did not appeal from the
subsequent post-judgment order awarding expert witness fees. According to plaintiffs’
theory, the wording of the judgment with the blank space for an amount was sufficient to
bring the section 998 award of expert witness fees within the appeal from the judgment
because the court incorporated its section 998 award of expert fees into the blank space of
the existing judgment, or that the notice of appeal was premature but valid. We disagree.
The notice of appeal from the judgment does not encompass the separately appealable
post-judgment order awarding expert witness fees. Therefore, this court lacks jurisdiction
over plaintiffs’ challenge to the order awarding expert witness fees. We agree with
defendant and dismiss the appeal.

1        All statutory references herein are to the Code of Civil Procedure unless otherwise
noted.

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                              FACTUAL BACKGROUND
       On March 23, 2010, Tara de Rogatis died from an overdose of a combination of
prescription medications for mental health issues and painkillers. Plaintiffs Linda de
Rogatis and Peter de Rogatis are Tara’s parents.
       Evidence at trial established that in 2005, Tara, who lived in Hollywood, started
taking acting classes and auditioned for roles, appearing in a Budweiser commercial and
some smaller films. Tara lived with her fiancé David MacEachern.
       From 2005 to 2008, MacEachern and Tara used methamphetamine. In 2007, Tara
began to complain of constant pain and auditory hallucinations. In 2007, Tara began
treatment with psychiatrist Dr. Paul Bohn, and admitted to him that she abused
methamphetamine. She was diagnosed with psychiatric disorders, including
schizoaffective disorder, psychotic disorder, and dissociative disorder. Dr. Bohn
prescribed Tara anti-depressants and anti-anxiety medication.
       At this time, Tara began to visit numerous doctors complaining of pain all over her
body, burning in her throat, and itching sensations. In April 2009, she visited the
emergency room at Cedars-Sinai complaining of pain, burning and tingling.
       After a series of referrals, Tara consulted with defendant, who is a rheumatologist.
Based on Tara’s symptoms, defendant believed Tara had fibromyalgia, which is a
constellation of symptoms of diffuse pain in the patient’s muscles and joints. In addition,
defendant knew that fibromyalgia can be associated with psychiatric problems, such as
anxiety and depression. Defendant prescribed 60 tablets of Norco, a painkiller, to be
taken four times a day.
       On March 22, 2010, the date of Tara’s last visit to defendant, Tara had been
feeling poorly. She could not manage the pain and stated that she wanted to die. Tara
told defendant that she had been taking Norco for so long that she did not believe it would
be effective. Tara asked defendant for stronger medication. Defendant prescribed a 25-
day supply of Percocet (oxycodone).



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       Tara and MacEachern took defendant’s Percocet prescription to CVS. According
to MacEachern, at around 5:30 p.m., he and Tara took the prescription to CVS, but the
pharmacist said, “I can’t fill this,” and Tara became upset. They returned to their
apartment. About 8:00 p.m. Tara returned to the pharmacy by herself, and was gone for
half an hour. According to MacEachern, Tara had the prescription with her when she
returned, although the pharmacy’s records indicate the prescription was not filled until
9:27 p.m., after Tara had returned home.
       The next morning about 5:30 a.m., MacEachern was awakened by a phone call
from Tara’s mother. MacEachern went to the bedroom and discovered Tara’s body.
       Toxicology reports established Tara’s blood contained more than the lethal levels
of hydrocodone, oxycodone, Tramodol (an analgesic), and Zolpiderm (Ambien). The
coroner concluded that Tara died of “multiple drug intoxication.” Tara’s medications
collected from her bedroom included a prescription dated March 22, 2010, for oxycodone
issued by a Dr. Ung. Defendant’s prescription for Percocet (oxycodone) was not among
them because Tara did not pick up the prescription.
       At trial, there was conflicting expert testimony regarding whether defendant’s
prescription of painkillers to Tara fell below the standard of care because Tara’s pain
issues were caused by her psychiatric illness, not fibromyalgia.
       The jury returned a unanimous verdict for defendant.


                            PROCEDURAL BACKGROUND
       On June 1, 2012, defendant served plaintiffs with a section 998 offer containing a
waiver of costs (estimated to exceed $25,000) and a waiver of a malicious prosecution
claim, in full settlement of the action. Plaintiffs declined the offer.
       On December 2, 2013, the trial court entered judgment for defendant. The amount
of costs to be awarded to defendant was left blank. In that regard, the judgment stated,
“Karen Shainsky D.O. shall recover from said plaintiffs costs of suit incurred herein in
the amount of __________.”


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       On December 17, 2013, defendant filed her memorandum of costs, seeking total
costs of $123,684.27, including $62,534.50 in expert witness fees.
       On January 6, 2014, plaintiffs filed their motion to tax defendant’s costs, which
was set for hearing February 14, 2014. Plaintiffs objected to defendant’s costs on the
basis they were unsubstantiated, unreasonable, unnecessary, and that the expert fees were
not recoverable pursuant to the section 998 offer because defendant’s offer was not made
in good faith.2
       On January 22, 2014, plaintiffs filed their notice of appeal from the judgment
entered on December 2, 2013.
       On February 26, 2014, the matter was heard, and the court granted plaintiffs’
motion with respect to miscellaneous costs of $8,826.73, and denied it in all other
respects. The court awarded defendant $114,857.54 in costs, including expert fees. The
minute order states that a “Memorandum of Costs in the amount of $114,857.54 is hereby
entered into the Judgment dated 12-2-13.”


                                      DISCUSSION
I.     SCOPE OF NOTICE OF APPEAL
       Defendant contends the appeal must be dismissed because the notice of appeal
from the judgment, filed before award of discretionary costs, did not encompass the later
order awarding those costs. Plaintiffs urge that we find the notice of appeal premature
and thus valid because the judgment left the costs blank, and the subsequent cost order
specifically ordered that the awarded costs be entered into the judgment.
       At issue here is whether the notice of appeal from the judgment also encompassed
the later cost order, or whether a separate notice of appeal from the cost order was
required. “While a notice of appeal must be liberally construed, it is the notice of appeal

2      Pursuant to section 1033.5, subdivision (b)(1), expert fees are not recoverable as
costs. However, section 998, subdivision (c)(1) makes such fees recoverable in the event
the party making a section 998 offer receives a more favorable result at trial.

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which defines the scope of the appeal by identifying the particular judgment or order
being appealed. [Citations.]” (Morton v. Wagner (2007) 156 Cal.App.4th 963, 967.)
Furthermore, “‘“‘[w]here several judgments and/or orders occurring close in time are
separately appealable . . . each appealable judgment and order must be expressly
specified—in either a single notice of appeal or multiple notices of appeal—in order to be
reviewable on appeal.’”’” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270,
1316 (Pfeifer).) Without a valid notice of appeal, this court lacks jurisdiction. (Ibid.)
          As is the case here, if the appeal is filed before the announcement of the court’s
intended ruling, it is untimely and cannot be treated as a premature but timely notice of
appeal. (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960-961;
Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 691 (Silver).) In
Silver, supra, 190 Cal.App.4th 688, we explained that the issue of whether a separate
appeal is required or whether a premature appeal can be construed to encompass a later
award of fees and costs is not whether fees or costs were ultimately recovered, but
whether the entitlement to fees or costs was adjudicated by the original judgment, leaving
only the amount of such fees for further adjudication. (Id. at p. 692.) In Silver, the
judgment contained a blank for the insertion of attorneys’ fees, but Silver found that
“notwithstanding the language in the judgment, it is clear that the parties subsequently
litigated in a separate postjudgment proceeding not only the reasonableness of the amount
of the attorney[s’] fees . . . but also the threshold issue of . . . entitlement to such fees.”
(Ibid.)
          Here, the issue is not whether expert witness fees were ultimately recovered as
costs but whether the entitlement to those fees was adjudicated by the original judgment.
They were not. The defendant did not become entitled to those fees until a cost bill was
filed and the motion to tax determined in a separate proceeding. (See, DeZerega v.
Meggs (2000) 83 Cal.App.4th 28, 44; Norman I. Krug Real Estate Investments, Inc. v.
Praszker (1990) 220 Cal.App.3d 35, 45-46.)



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       In the context of section 998 fees, Pfeiffer, supra, 220 Cal.App.4th 1270, the trial
court entered judgment for the plaintiff but left the amount of prejudgment interest and
costs blank. A month after entry of judgment, the defendant filed a motion to tax costs,
challenging entitlement to expert witness fees under section 998. While the motion to tax
costs was pending, the defendant filed a notice of appeal from the judgment. (Id. at p.
1315.) Pfeiffer rejected the defendant’s contention that the notice of appeal from the
judgment encompassed the cost order. Pfeiffer reasoned that although a judgment
modified only to add costs, attorneys’ fees, and interest does not require a separate appeal
from the cost order, that rule was premised on costs recoverable as a matter of right under
section 1032. In contrast, section 998 costs are discretionary. (Id. at pp. 1317-1318.)
“For this reason, such an award [of section 998 costs] is collateral to the judgment” and a
premature notice of appeal did not encompass section 998 costs. (Id. at p. 1318; accord,
Fish v. Guevara (1993) 12 Cal.App.4th 142, 146-148 (Fish).) Fish similarly held that
“[a]n award of expert witness fees pursuant to section 998 is not incidental to the
judgment but is instead a separately litigated issue,” and thus required a separate notice of
appeal. (Id. at p. 148.)
       Here, under the reasoning of Silver, Pfeiffer and Fish, the section 998 cost order
was not subsumed within the notice of appeal from the judgment. Notwithstanding the
fact that the judgment contained a blank for entry of costs, and the minute order specifies
that such costs are “to be entered into the judgment,” the notice of appeal filed before
costs are fixed can only be construed to cover section 1032 costs, which are a matter of
right. Discretionary section 998 costs, such as the expert fees at issue here, required a
separate notice of appeal. In other words, the issue of whether defendant was entitled to a
discretionary award of expert witness fees was deferred until after judgment and litigated
in a separate post-judgment proceeding that resulted in a determination and order in
defendant’s favor. The post-judgment order awarding the expert witness fees was
separately appealable and required a separate and timely notice of appeal.



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       Nonetheless, plaintiffs assert that Pfeiffer and Fish are distinguishable because the
blank space for costs in the judgment means that defendant’s entitlement to section 998
costs was already determined. In support, they point out that as reflected in the record,
the minute order states that “[c]osts in the amount of $14,857.54 is hereby entered into the
Judgment dated 12-2-13, and the amount was actually incorporated into the judgment.”
These facts do not insulate this case from the rule set forth in Silver, Fish and Pfeiffer.
Whether or not the judgment contains a blank for costs has nothing to do with entitlement
to such costs.3
                                       DISPOSITION
       Plaintiffs’ appeal from the order awarding expert witness fees is dismissed for lack
of jurisdiction. Defendant is to recover her costs on appeal.


                                            KIRSCHNER, J.*


We Concur:




       TURNER, P. J.




       KRIEGLER, J.




3      Since the appeal is dismissed, we do not reach plaintiffs’ arguments that the
section 998 offer was unreasonable and in bad faith. Thus, the trial court’s ruling on
defendant’s entitlement to expert witness fees is not affected by our ruling.
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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