Filed 4/20/15 Rashidi v. Moser CA2/4
Opinion on remand from Supreme Court
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




HAMID RASHIDI,                                                          B237476

         Plaintiff and Appellant,                                       (Los Angeles County
                                                                        Super. Ct. No. BC392082)
         v.

FRANKLIN MOSER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard L. Fruin, Judge. Affirmed as modified.
Reback, McAndrews, Kjar, Warford & Stockalper and Robert C. Reback; Cole Pedroza
and Curtis A. Cole for Defendant and Appellant.
         Tucker Ellis, E. Todd Chayet, Rebecca A. Lefler, Corena G. Larimer; and
Fred J. Hiestand as Amici Curiae on behalf of Defendant and Appellant.
         Balan & Speilberger, Daniel Balaban, Andrew J. Spielberger; Esner, Chang &
Boyer, Stuart B. Esner and Holly N. Boyer for Plaintiff and Appellant.
                           ______________________________________________
       After undergoing a surgical procedure, plaintiff Hamid Rashidi filed this action for
professional negligence and other claims. He entered into pretrial settlements with
defendants Biosphere Medical, Inc. (Biosphere) and Cedars-Sinai Medical Center
(Cedars-Sinai), for $2,000,000 and $350,000, respectively. He then proceeded to trial
against the remaining defendant, Franklin Moser, the physician who performed the
surgical procedure. The jury awarded Mr. Rashidi $1,450,000 against Dr. Moser,
consisting of $125,000 for future medical expenses, $331,250 for past noneconomic
damages, and $993,750 for future noneconomic damages. In accordance with Civil Code
section 3333.2,1 enacted as part of the Medical Injury Compensation Reform Act of 1975
(MICRA), the trial court capped Mr. Rashidi’s award of noneconomic damages at
$250,000, but refused to grant offsets based upon the pretrial settlements with Cedars-
Sinai and Biosphere Medical.
       Both parties appealed from the judgment. Dr. Moser sought offsets based upon
the pretrial settlements with the other two defendants. Mr. Rashidi challenged the
constitutionality of MICRA. In a prior opinion, we rejected Mr. Rashidi’s challenge to
the constitutionality of MICRA, and granted Dr. Moser two offsets: The first, based on
the settlement with Biosphere Medical, eliminated the economic damages award. The
second, based on the settlement with Cedars-Sinai, reduced the noneconomic damages
award to $16,655.
       Mr. Rashidi petitioned the Supreme Court for review, and his petition was granted
only as to the reduction of noneconomic damages. That aspect of our decision was
reversed, and in all other respects, the decision was affirmed. (Rashidi v. Moser (2014)
60 Cal.4th 718 (Rashidi).) In accordance with the Supreme Court’s decision, we issue
this revised opinion.




       1 All   further statutory references are to the Civil Code, unless otherwise specified.
                                                2
                     FACTUAL AND PROCEDURAL SUMMARY
       According to the allegations of the charging pleading, in April 2007, 26-year-old
Rashidi went to the emergency room at Cedars-Sinai Medical Center with a severe nose
bleed. He was treated and discharged. In May 2007, he again went to the emergency
room at Cedars-Sinai for a severe nose bleed. This time, he was examined by Dr. Moser,
who advised him “to have an operation to treat his nose bleeds and/or arteriovenous
malformation.”
       The operation, an embolization procedure, was performed by Dr. Moser at Cedars-
Sinai the same day. It involved insertion of a catheter into an artery in Mr. Rashidi’s leg
and up into the nose, and injection of embospheres into the catheter to permanently and
irreversibly occlude blood vessels. The embosphere microspheres used by Dr. Moser
were manufactured by Biosphere Medical, Inc. When Mr. Rashidi regained
consciousness, he was blind in one eye. The blindness is permanent.
       Mr. Rashidi brought this action against Dr. Moser, Cedars-Sinai, and Biosphere
Medical. He alleged causes of action against Dr. Moser and Cedars-Sinai for medical
malpractice and medical battery. He also alleged causes of action against Biosphere
Medical for product liability based on design or manufacturing defect, failure to warn,
negligence per se, breach of express and implied warranty, and misrepresentation. The
theory against Biosphere Medical was that the particles it manufactured had specific
chemical and elastic physical qualities which enhanced their ability to travel through very
small blood vessels and collateral veins, causing a significant risk that they would travel
through the blood system to sites other than the intended surgical sites, and that they did
so in this case, causing the blindness. Mr. Rashidi alleged that Biosphere failed to
disclose this risk, and failed to disclose that the embosphere microspheres were of
nonuniform size, instead marketing the product as being of uniform size which allowed
for accurate targeting of particular arteries.
       Mr. Rashidi settled with Biosphere Medical for $2 million. He settled with
Cedars-Sinai Medical Center for $350,000. Each settling defendant moved for a
determination that its settlement was in good faith. Notice of each motion was served on

                                                 3
all parties, including Dr. Moser. The motions were unopposed and were granted.
       Trial proceeded against Dr. Moser, the remaining defendant. The jury found his
diagnosis or treatment of Mr. Rashidi was negligent, and that this negligence was a cause
of the injury to Mr. Rashidi. It awarded Mr. Rashidi $125,000 present cash value for
future medical care resulting from this negligence, $331,250 for past noneconomic
damages, and $993,750 for future noneconomic damages. In accordance with MICRA’s
cap on noneconomic damages, the court reduced the noneconomic damages to $250,000.
       Dr. Moser argued there should be an offset against this judgment, based upon the
pretrial settlements with Cedars-Sinai and Biosphere Medical that were found to be in
good faith. The trial court rejected this argument, finding no basis for allocating the
settlement sums between economic and noneconomic damages. As the court explained,
the agreements with the settling defendants did not make any such allocation, the affected
defendants did not participate in the trial, and the jury was not requested to determine the
proportionate fault, if any, of the settling defendants.
       Dr. Moser filed a timely notice of appeal. Mr. Rashidi filed a cross-appeal,
challenging the constitutionality of MICRA. In our prior opinion, we found the cap on
noneconomic damages to be constitutional, and granted Dr. Moser an offset that
eliminated the economic damages award, and another offset that reduced the
noneconomic damages award to $16,655.
       Mr. Rashidi petitioned the Supreme Court for review of two issues: the
constitutionality of MICRA; and the offset that reduced the noneconomic damages
award. Review was granted only as to the second issue. The Supreme Court reversed the
offset against noneconomic damages, which remains capped at $250,000, and affirmed
the remainder of our decision. (Rashidi, supra, 60 Cal.4th 718.) We issue this revised
opinion in accordance with the Supreme Court’s ruling.




                                               4
                                       DISCUSSION
                                              I
       In light of the Supreme Court’s ruling, we affirm the trial court’s denial of an
offset against noneconomic damages. (Rashidi, supra, 60 Cal.4th at pp. 724–728.) The
award of noneconomic damages remains capped at $250,000.
       Although the settlements paid by Cedars-Sinai and Biosphere Medical exceeded
the $1,450,000 jury verdict against Dr. Moser, the liability of the settling defendants, if
any, has not been established. Neither Cedars-Sinai nor Biosphere Medical was involved
in the trial; no apportionment of their comparative fault, if any, was made by the jury.
Dr. Moser is the only defendant whose liability for noneconomic damages has been
proven.
       As the Supreme Court explained, if Dr. Moser had “established any degree of fault
on his codefendants’ part at trial, he would have been entitled to a proportionate
reduction in the capped award of noneconomic damages.” (Rashidi, supra, 60 Cal.4th at
p. 727.) But because that did not occur, he is not entitled to “a setoff against damages for
which he alone was responsible.” (Ibid.; § 1431.2 [liability for noneconomic damages is
several only].)2


                                              II
       As to economic damages, we previously held that Dr. Moser is entitled to an offset



       2 The   right to an offset of economic damages involves the interplay between Code
of Civil Procedure section 877, which addresses the impact of a good faith settlement on
settling and nonsettling tortfeasors, and section 1431.2, which provides that liability for
noneconomic damages is several only, in accordance with the percentage of fault.
        Section 1431.2 was adopted by the passage of Proposition 51 as part of the Fair
Responsibility Act of 1986. It provides in pertinent part: “(a) In any action for personal
injury, property damage, or wrongful death, based upon principles of comparative fault,
the liability of each defendant for non-economic damages shall be several only and shall
not be joint. Each defendant shall be liable only for the amount of non-economic
damages allocated to that defendant in direct proportion to that defendant’s percentage of
fault, and a separate judgment shall be rendered against that defendant for that amount.”
                                              5
based on the settlement paid by Biosphere Medical. That aspect of our prior decision,
which was not challenged in Mr. Rashidi’s petition for review, was affirmed. (Rashidi,
supra, 60 Cal.4th at pp. 722–723, 728.) Our analysis, as stated in the prior opinion, is set
forth below.
       Code of Civil Procedure section 877 describes the impact of a good faith
settlement on settling and nonsettling tortfeasors: “Where a release, dismissal with or
without prejudice, or a covenant not to sue or not to enforce judgment is given in good
faith before verdict or judgment to one or more of a number of tortfeasors claimed to be
liable for the same tort, . . . it shall have the following effect: [¶] (a) It shall not discharge
any other such party from liability unless its terms so provide, but it shall reduce the
claims against the others in the amount stipulated by the release, the dismissal or the
covenant, or in the amount of the consideration paid for it, whichever is the greater. [¶]
(b) It shall discharge the party to whom it is given from all liability for any contribution
to any other parties.”
       With respect to economic damages, codefendants are jointly and severally liable.
(Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1198.) Section 1431.2 “retains
the joint liability of all tortfeasors, regardless of their respective shares of fault, with
respect to all objectively provable expenses and monetary losses.” (DaFonte v. Up-
Right, Inc. (1992) 2 Cal.4th 593, 600.)
       As we have noted, in this case there was no allocation between economic and
noneconomic damages in either of the good faith settlements.3 “The absence of a court
approved pretrial allocation of a settlement between economic and noneconomic damages
does not preclude a court from making a postverdict allocation. [Citations.] Some
allocation of an undifferentiated settlement between economic and noneconomic
damages is required because only the amount attributable to the joint responsibility for



       3 Dr. Moser did not object to the good faith determination as to either settlement,
nor did he ask the court at the time of either good faith hearing to make a determination as
to the allocation of the settlement between economic and noneconomic damages.
                                                6
economic damages may be used as an offset.” (Ehret v. Congoleum Corp. (1999) 73
Cal.App.4th 1308, 1320.)
       In the absence of a pretrial allocation, courts have developed a method for
applying the allocations of the jury verdict to the settlements. (Espinoza v. Machonga
(1992) 9 Cal.App.4th 268, 276–277; see also Poire v. C.L. Peck/Jones Brothers
Construction Corp. (1995) 39 Cal.App.4th 1832, 1838–1839; Greathouse v. Amcord, Inc.
(1995) 35 Cal.App.4th 831, 840–841.) The method is to allocate the settlements so that
they mirror the jury’s apportionment of economic and noneconomic damages. (Jones v.
John Crane, Inc. (2005) 132 Cal.App.4th 990, 1006.) This is done by calculating the
percentage of the award attributable to economic damages in relationship to the entire
award, and then applying that same percentage to the settlement. (Espinoza v.
Machonga, supra, at p. 277.) This will yield the portion of the settlement attributable to
economic damages, for which the nonsettling defendant is entitled to an offset. (Rashidi,
supra, 60 Cal.4th at pp. 722–723.)
       The jury awarded Mr. Rashidi a total of $1,450,000 against Dr. Moser. Of this,
$125,000 was for economic damages. The percentage of the award attributable to
economic damages is 8.62 percent. Applying that percentage to the $2 million settlement
with Biosphere Medical, we calculate that $172,400 of that settlement should be allocated
to economic damages. Under section 877, Dr. Moser is entitled to a reduction of the
claim against him in that amount. Since the jury’s verdict for economic damages against
Dr. Moser was only $125,000, the Biosphere Medical settlement completely offsets that
portion of Dr. Moser’s obligation to Mr. Rashidi. The judgment should reflect this offset.
(Rashidi, supra, 60 Cal.4th at pp. 722–723, 728.)


                                             III
       In the cross appeal, Mr. Rashidi challenged the constitutionality of MICRA. In
our prior opinion, we considered and rejected this contention. The Supreme Court denied
review of that issue, which was affirmed. (Rashidi, supra, 60 Cal.4th at p. 728.) Our
analysis, taken from the prior opinion, is restated below.

                                             7
       As the court observed in Stinnett v. Tam (2011) 198 Cal.App.4th 1412, 1419,
“After MICRA’s enactment, judicial challenges to various provisions of MICRA were
abundant, but unsuccessful.” We find settled, well-reasoned authority rejecting each of
the constitutional claims.
       Mr. Rashidi’s first claim is that the $250,000 damages cap violates a plaintiff’s
constitutional right to a jury trial. In Yates v. Pollock (1987) 194 Cal.App.3d 195, 200,
the court characterized this same claim as “an indirect attack upon the Legislature’s
power to place a cap on damages.” In American Bank & Trust Co. v. Community
Hospital (1984) 36 Cal.3d 359, 368–369 (American Bank) and Fein v. Permanente
Medical Group (1985) 38 Cal.3d 137, 158 (Fein), the Supreme Court confirmed that a
plaintiff has no vested property right in a particular measure of damages, and the
Legislature has broad authority to modify the scope and nature of such damages. “‘So
long as the measure is rationally related to a legitimate state interest, policy
determinations as to the need for, and the desirability of, the enactment are for the
Legislature.’” (Fein, supra, at p. 158, quoting American Bank, supra, at pp. 368–369.)
The Supreme Court found that the $250,000 ceiling on the recovery of noneconomic
damages is rationally related to the objective of reducing the costs of medical malpractice
litigation and in that way restraining the costs of medical malpractice insurance
premiums. (Id. at p. 159.) The court found no California case suggesting “that the right
to recover for noneconomic injuries is constitutionally immune from legislative limitation
or revision.” (Id. at pp. 159–160.)
       In American Bank, supra, 36 Cal.3d at page 376, the court explained that the
constitutional guarantee of jury trial operates at the time of trial to require submission of
certain issues to the jury. Once a verdict has been returned, the effect of the
constitutional provision is to prohibit improper interference with the jury’s decision.
There is no such improper interference under MICRA. The issue of damages is still
submitted to the jury. The subsequent reduction of the damages awarded—either under
the periodic payment provision challenged in American Bank (Code Civ. Proc., § 667.7),
or under the damages cap challenged in this case—does not improperly interfere with the

                                               8
jury’s decision. (American Bank, supra, 36 Cal.3d at pp. 376–377; Yates v. Pollock,
supra, 194 Cal.App.3d at p. 200.)
       Next, Mr. Rashidi claims the damages cap violates equal protection because it
“arbitrarily imposes a one-size-fits-all” $250,000 limit on the noneconomic damages a
plaintiff may receive in a medical malpractice action, regardless of the jury’s findings as
to the extent and severity of a plaintiff’s injuries. In Fein, supra, 38 Cal.3d at pages
161–162, the Supreme Court considered and rejected a similar claim. The Legislature
had a rational basis for enacting the damages limitation, and sought to obtain the desired
cost savings only by limiting noneconomic damages. This limitation applies equally to
all plaintiffs, without precluding the more seriously injured plaintiff from obtaining
complete compensation for out-of-pocket medical expenses or lost earnings. (Id. at
p. 162; Stinnett v. Tam, supra, 198 Cal.App.4th at p. 1425.) Mr. Rashidi’s argument
regarding the need to adjust the MICRA cap so that it is indexed for inflation should be
directed to the Legislature. (See Stinnett v. Tam, supra, at p. 1432.)
       Mr. Rashidi also argues that section 3333.2 violates the separation of powers by
requiring the courts to enter judgment in an amount unrelated to the facts found by the
jury. The Supreme Court has recognized the authority of the Legislature to limit the
recovery of noneconomic damages. (Fein, supra, 38 Cal.3d at pp. 157–160.) The
Legislature possesses broad authority to establish or to abolish tort causes of action.
(Cheong v. Antablin (1997) 16 Cal.4th 1063, 1069.) Although that authority necessarily
affects the work of the judiciary, it does not impermissibly impinge on that separate
branch of government. We find no violation of the separation of powers by the
requirement that the court reduce awards of noneconomic damages to comply with the
MICRA ceiling.




                                              9
                                     DISPOSITION
      The judgment is modified to reflect an offset against economic damages in the
amount of $125,000, thus satisfying the economic damages award. In all other respects,
the judgment is affirmed. The parties are to bear their own costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EPSTEIN, P. J.


We concur:



      WILLHITE, J.



      MANELLA, J.




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