Filed 11/23/15 Welch v. Kemp CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

JEANNE M. WELCH,                                                     H041311
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. 112CV229964)

         v.

PAUL B. KEMP,

         Defendant and Respondent.


         In this legal malpractice action, plaintiff Jeanne M. Welch appeals a judgment
entered in favor of her former attorney, defendant Paul B. Kemp, after a bench trial.
         Kemp represented Welch in a personal injury action against Charles Koch in 2011.
Koch offered to settle that action for $350,000. Welch informed Kemp she would not
accept less than $600,000. When the trial court excluded Welch’s expert’s opinion
testimony regarding her need for future knee replacement surgery, the $350,000
settlement offer was withdrawn. Welch prevailed at trial and was awarded $76,224.99 in
damages. She appealed the order excluding evidence of future knee replacement surgery.
This court affirmed, finding the trial court had not abused its discretion in excluding the
expert’s testimony on lack of foundation grounds.
         Welch sued Kemp for professional negligence and breach of fiduciary duty,
alleging he committed malpractice by, among other things, failing to prepare the expert
and failing to advise her that there was a substantial risk the expert would not be allowed
to testify regarding her need for knee replacement surgery, which in turn prevented her
from making an informed decision regarding the settlement offer. On appeal, she also
contends Kemp negligently advised her to pursue an appeal in the underlying action.
       Following a bench trial, the trial court found that there was insufficient evidence to
establish that Kemp’s actions fell below the standard of ordinary care. The court ordered
that Kemp was entitled to recover his costs and denied Welch’s motion to tax his expert
witness fees.
       Welch appeals from the final judgment and the denial of her motion to tax Kemp’s
expert witness fees. We affirm.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       A.       Welch’s Personal Injury Suit Against Koch
       Koch hit Welch with his car while she was crossing the street in Los Gatos on
December 4, 2009. The collision broke the bones in Welch’s lower leg. She was treated
by Dr. Stephen Imrie, an orthopedic surgeon and family friend.
       On December 8, 2009, Welch retained Kemp to represent her in prosecuting a
claim for damages arising out of the accident. A personal injury lawsuit against Koch
followed.
       Welch saw Dr. Imrie for a follow up appointment in June 2010. According to
Welch, at that time, Dr. Imrie told her she would eventually need knee replacement
surgery on her injured knee because her preexisting arthritis would worsen due to the
accident. Welch communicated that opinion to Kemp.
                1.    Dr. Imrie’s Deposition
       Dr. Imrie was deposed as a percipient witness on March 1, 2011. In the legal
malpractice lawsuit, Dr. Imrie testified that he spoke to Kemp prior to being deposed in
the underlying case. While Dr. Imrie could not recall the substance of that conversation,
he “assum[ed]” he would be asked in the deposition whether Welch would need a knee




                                               2
replacement in the future and he was aware “that the standard for admissibility in a
court . . . was based on a reasonable medical probability.”1 Kemp likewise testified that
he spoke with Dr. Imrie prior to his deposition. According to Kemp, that conversation
satisfied him that Dr. Imrie “was going to support the need for future knee surgery.”
        At his deposition, Dr. Imrie testified that Welch was not “currently” a candidate
for total knee replacement, but “[t]hat’s not to say in the future she may not be.”
Dr. Imrie further testified that he wanted to stay away from the term “medically
probable.” In Kemp’s view, at the deposition, the defense attorney did not “pin
[Dr. Imrie] down” on the issue of whether Welch would eventually need knee
replacement surgery. Therefore, Kemp elected not to ask Dr. Imrie about Welch’s future
need for knee replacement surgery at the deposition.
        Kemp decided to use Dr. Imrie as his medical expert at trial, rather than hiring an
independent expert, based on his view that jurors tend to believe treating physicians over
“hired guns.” Kemp designated Dr. Imrie as a nonretained expert witness on March 7,
2011.
               2.     First Settlement Conference
        The parties participated in a settlement conference on April 20, 2011. The lowest
demand presented by Welch at that conference was $425,000. The defense made a
counter offer of $300,000.
        Welch testified that Kemp advised her $300,000 was a “good offer” and that she
should “think about it and let him know the next day,” but that he never recommended
she accept the offer. She said that while Kemp warned her that juries are




        1
        A plaintiff in a personal injury action must prove damages “within a reasonable
medical probability based upon competent expert testimony.” (Jones v. Ortho
Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)

                                              3
“unpredictable,” he stated he was “ready to go to trial” if she “wanted to roll the dice.”
Kemp testified that he recommended Welch accept the $300,000 settlement offer.
       Welch e-mailed Kemp the day after the settlement conference to decline the offer.
She wrote: “I did think about it . . . I have to take a chance with the jury.”
              3.     Defense Motions In Limine and Further Settlement Discussions
       The defense filed a number of in limine motions on April 22, 2011, which Kemp
received on April 25, 2011. One motion sought to exclude any references to medical
“possibilities,” another sought to prevent Dr. Imrie from testifying differently than he did
at his deposition, and another sought to exclude references to the cost of knee
replacement surgery.
       The parties participated in a second settlement conference before Judge
Woodhouse on April 26, 2011. Welch met privately with Judge Woodhouse and told him
she thought $600,000 would fully compensate her. The conference ended shortly
thereafter.
       Kemp testified that he showed Welch the defense motions in limine while they
were at the courthouse for the settlement conference and “she [was] aware of the dangers
of the motions.” He testified that he told her defendant wanted to exclude “opinions
regarding future knee replacement.” Welch testified that Kemp showed her the motions
in limine at his office following the second settlement conference. She acknowledged
that she understood the defense wanted to exclude any reference to future surgery.
       On April 27, 2011, Welch e-mailed Kemp to explain her $600,000 settlement
demand. She wrote that she arrived at the figure based on the following estimates:
$20,000 in costs; $232,000 in attorney fees; $46,000 in medical bills; $190,000 for future
knee replacement surgery; $55,000 for lost wages in 2010; and $57,000 in pain and
suffering.
       The following day, Kemp sent Welch a letter stating that he had recommended she
accept the $300,000 settlement offer made at the first settlement hearing. Welch testified
                                              4
that, in fact, Kemp never made such a recommendation. She believed he sent the letter to
“cover his butt” after the motions in limine were filed.
       The court held a hearing on the motions in limine on April 28, 2011. Kemp
argued that Dr. Imrie did not testify at his deposition whether or not a future knee
replacement surgery was probable, such that the door was open for him to testify at trial
that such a surgery was probable. Kemp stated that he did not know how Dr. Imrie
would testify. The court ordered a hearing pursuant to Evidence Code section 402
(section 402) to “determine what [Dr. Imrie] is going to say” regarding the issue of future
knee replacement surgery. According to Welch, after the hearing on the motions in
limine, Kemp assured her that “as long as Dr. Imrie testified in all probability he will be
allowed to testify at trial.”
       On April 29, 2011, Koch offered to settle the case for $350,000. At Kemp’s
direction, his assistant conveyed the offer to Welch by e-mail. Welch responded by
e-mail 15 minutes later, stating “I fully understand the risks—$350,000 is not enough to
compensate me for what I lost and will loose [sic].” Welch testified that she was not
referring to any risk that she would not be permitted to introduce evidence of her future
need for knee replacement surgery, though she knew the defense was trying to exclude
such evidence. Welch testified that Kemp never discussed the $350,000 offer with her.
Their relationship was strained at that time and “[h]e was basically not really talking to”
her.
       Kemp e-mailed Welch on May 2, 2011, regarding her $600,000 demand. He
noted that, based on her April 27, 2011 e-mail, her demand was based in part on costs and
attorney fees. He explained that this was a mistake because costs and fees “come[] out of
the plaintiff’s damages or verdict” “in personal injury cases.” Kemp further noted that,
using the figures in Welch’s April 27, 2011 e-mail, her estimated damages were
$348,000, less than the outstanding offer of $350,000.


                                             5
              4.     Section 402 Hearing
       The court held a section 402 hearing on May 5, 2011. Kemp testified that, prior to
the hearing, he told Dr. Imrie that “he had to give an opinion about whether or not
[Welch] needed a future knee replacement, and it couldn’t be possibility, it had to be
medically probable this was going to happen.” According to Kemp, Dr. Imrie told him
“[i]t was medically probable [Welch] was going to have this knee replacement within her
lifetime” and that he was basing that opinion on “[e]xperience” and “common sense.”
       At the hearing, Dr. Imrie opined that it was “probable” that Welch would have
degenerative changes in her injured knee “over the next 5, 10, 15 years,” which would
necessitate knee replacement surgery. Dr. Imrie noted that he knew “of no data to
support that [opinion] clearly.” Apparently prompted by that comment, the court asked
“then what do you base your opinion on?” Dr. Imrie responded that “it is based on
common opinion, not on hard data”; “it is based on [the] belief throughout the orthopedic
community, not just my opinion, but all orthopedists to my knowledge believe that [an]
injury to a joint is more likely than not to lead to a degenerative change.”
       The trial court excluded testimony regarding the need for future knee replacement
surgery, reasoning that “the [d]octor says there is no data to support his opinion that the
operation might be more likely than not. And he says he wouldn’t know for 5 to 10
years. So I think while he says more likely than not, I think [defense counsel] is correct.
That’s more of a possibility than a probability.”
       The defense withdrew its settlement offer after the hearing.
              5.     Verdict and Appeal
       The case proceeded to a jury trial. Welch prevailed and was awarded $76,224.99
in damages. On May 27, 2011, Kemp informed Welch by letter that he considered the
trial court’s exclusion of Dr. Imrie’s testimony about “the probability of a future knee
replacement [to be] an absolute error.” While Kemp declined to represent Welch on
appeal, he told her he thought she should win her appeal. On appeal, this court affirmed,
                                              6
concluding that the trial court did not abuse its discretion in excluding Dr. Imrie’s
opinion testimony regarding future knee surgery because that testimony “lacked an
adequate foundation.”2 (Welch v. Koch (Jan. 7, 2014, H037228) [nonpub. opn.].)
       B.     Welch’s Malpractice Suit Against Kemp
       Welch filed a two-count complaint against Kemp on August 7, 2012, asserting
claims for professional negligence and breach of fiduciary duty. She alleged Kemp
breached the applicable standard of care by failing to “prepare” Dr. Imrie (or another
expert) to “provide admissible opinion testimony . . . [regarding] the necessity of a future
knee replacement surgery.” She further alleged Kemp’s failure “to advise [her] to accept
the $350,000 [settlement offer] considering the damage that had been done to her case for
the failure to secure an admissible expert opinion regarding the necessity of a future knee
replacement surgery” both fell below the standard of care for personal injury attorneys
and constituted a breach of Kemp’s fiduciary duties.3
       On January 30, 2013, Kemp made Welch an offer to settle pursuant to Code of
Civil Procedure section 998 (section 998). Kemp offered to waive all costs incurred in
the litigation in exchange for entry of judgment in his favor. Welch did not accept the
offer. The case proceeded to a three-day bench trial in January and February, 2014.
              1.     Welch’s Expert
       Richard Damon testified for Welch as an expert on the applicable standard of care.
Damon had previously represented Welch on appeal in her personal injury action against
Koch. She still owed him $12,000 at the time of the legal malpractice trial. Damon
testified he had tried 10 jury trials to verdict and had prepared dozens more cases for trial

       2
         The trial court in the legal malpractice action took judicial notice of this court’s
decision in Welch v. Koch (Jan. 7, 2014, H037228 [nonpub. opn.]).
       3
         The complaint included other allegations, which Kemp addresses in his
respondents’ brief. We address only on those theories and allegations Welch pursues on
appeal.

                                              7
that settled. He had not previously testified as an expert on the standard of care of
attorneys.
       Damon opined that Kemp “should have talked to [Dr.] Imrie about ways to testify
regarding his prognosis” to ensure Dr. Imrie’s opinion was “based on some kind of a
foundation other than pure personal opinion or his experience.” He further opined that
Kemp violated the standard of care related to client communication by failing to advise
Welch following the April 28, 2011 hearing that “there was a big, big doubt whether
there would be any recovery for future knee surgery.”
              2.     Kemp’s Expert
       Prescott Kendall testified for Kemp as an expert concerning the applicable
standard of care. Kendall testified he had tried at least 125 jury trials to verdict. Kendall
opined that Kemp exceeded the standard of care for an attorney in all of the areas that
were disputed. Kendall did not fault Kemp for not anticipating that the trial judge “would
have an interest in statistical data” because “[t]he doctor’s testifying on experienced
based medicine and training.” With respect to the settlement offer, Kendall opined that
Kemp was not required to advise Welch specifically that “there was a substantial risk that
[Dr.] Imrie would not be allowed to give an opinion on future knee surgery.” Rather,
Kemp satisfied the standard of care by giving Welch the motions in limine and discussing
them with her.
              3.     Statement of Decision
       In a statement of decision filed on June 17, 2014, the trial court found there was
“insufficient evidence to establish that Defendant Kemp fell below the applicable
ordinary standard of care in preparing for trial and communicating with, and advising
plaintiff on the merits and risks of the proposed settlement offers.” With respect to
Dr. Imrie’s testimony, the court reasoned that “Dr. Imrie testified that the opinion was
founded on the experience he had in this field and his discussions with other orthopedists.
The Court believes the judge [in the personal injury action] made a mistake in finding no
                                              8
foundation. This Court would have found differently. The point of the matter is that
reasonable Courts may disagree and that an attorney can only use his or her best effort to
present the case. There is no possible way Mr. Kemp could have guaranteed the
outcome.” As to the settlement offer, the court found that “Welch was aware, as of
April 26, that counsel for Koch sought a restriction on trial testimony about future knee
surgery, which is one of the risks, however small, that [Welch informed Kemp she] ‘fully
underst[ood]’ in rejecting the $350,000 offer on April 29.” The court ordered that Kemp
was entitled to recover his costs.
        The court entered judgment for Kemp on June 30, 2014.
               4.     Motion to Tax Costs
        Kemp filed a memorandum of costs seeking to recover $19,067.87. On July 1,
2014, Welch moved to tax costs, arguing that Kemp was not entitled to the $15,520 in
expert witness fees he requested pursuant to section 998 because he had not made a good
faith settlement offer. Welch contended that Kemp’s offer to waive costs was merely a
token offer. The trial court denied the motion on July 25, 2014.
        Welch timely appealed the judgment and the postjudgment order on August 5,
2014.
II.     DISCUSSION
        A.     Standard of Review
        Generally, where the trial court’s statement of decision contains findings of fact
and conclusions of law, we review the findings of fact to determine whether they are
supported by substantial evidence and review the conclusions of law de novo. (ASP
Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.) “ ‘ “[A]ny
conflict in the evidence or reasonable inferences to be drawn from the facts will be
resolved in support of the determination of the trial court decision.” ’ ” (Cuiellette v. City
of Los Angeles (2011) 194 Cal.App.4th 757, 765.)


                                              9
       Where, as here, “ ‘the trier of fact has expressly or implicitly concluded that the
party with the burden of proof did not carry the burden and that party appeals’ ” (Sonic
Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456,
465), “ ‘the question for a reviewing court becomes whether the evidence compels a
finding in favor of the appellant as a matter of law. [Citations.] Specifically, the
question becomes whether the appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.” ’ ” (Id. at p. 466.)
       “In reviewing a trial court’s decision, we review the result, not the reasoning. A
decision right in result will not be reversed because it is based on an erroneous theory.”
(Florio v. Lau (1998) 68 Cal.App.4th 637, 653.)
       B.     Governing Legal Principles
       “In civil malpractice cases, the elements of a cause of action for professional
negligence are: ‘(1) the duty of the attorney to use such skill, prudence and diligence as
members of the profession commonly possess; (2) a breach of that duty; (3) a proximate
causal connection between the breach and the resulting injury; and (4) actual loss or
damage.’ ” (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536.) The plaintiff has
the burden of proving each of these elements. (E-Pass Technologies, Inc. v. Moses &
Singer, LLP (2010) 189 Cal.App.4th 1140, 1148.) The elements of a cause of action for
breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary
duty, and damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
       C.     Failure to Prepare Expert to Testify to Proper Foundation For Opinions
       Welch’s first theory of liability is that Kemp breached his duty of care by failing
to ensure Dr. Imrie had an adequate foundation for his opinion that she would need knee
replacement surgery in the future. The record evidence does not support the underlying
contention—that Kemp failed to ensure Dr. Imrie had an adequate foundation for his
opinion. Rather, as discussed below, it shows Kemp inquired into Dr. Imrie’s foundation,
                                              10
Dr. Imrie provided Kemp with an adequate foundation, and then Dr. Imrie failed to
testify to that foundation at the section 402 hearing.
       Kemp testified that he spoke to Dr. Imrie before the section 402 hearing about
both his opinion regarding Welch’s need for future knee replacement surgery and the
basis for that opinion. According to Kemp, Dr. Imrie said his opinion that Welch would
probably need a knee replacement was based on “[e]xperience.” Expert medical opinion
about future detriment may properly be based on “the plaintiff’s particular circumstances
and the expert’s experience with similar cases.” (Bihun v. AT&T Information Systems,
Inc. (1993) 13 Cal.App.4th 976, 995, disapproved on other grounds in Lakin v. Watkins
Associated Industries (1993) 6 Cal.4th 644, 664; see Cordiner v. Los Angeles Traction
Co. (1907) 5 Cal.App. 400, 404-405 [testimony of duly qualified medical experts which
shows that, in a majority of cases a particular type of injury results in particular future
consequences tends to prove the reasonable certainty that such consequences will follow
in any given case of like injury].) Thus, here, Dr. Imrie could properly have based his
opinion that Welch would need knee replacement surgery on his examination of her
injury and his experience with other patients with similar injuries, as he suggested to
Kemp he would.
       However, at the section 402 hearing, Dr. Imrie did not testify that his opinion was
based on his experience.4 Instead, he relied on the “belief” among “all orthopedists . . .
that [an] injury to a joint is more likely than not to lead to a degenerative change.”
Another panel of this court previously concluded that Dr. Imrie provided no foundation

       4
         In its statement of decision, the trial court stated that “Dr. Imrie testified [that
his] opinion was founded on the experience he had in this field and his discussions with
other orthopedists.” To the extent that constitutes a finding of fact, it is unsupported by
substantial evidence in the record. The record contains only that portion of the
section 402 hearing that was read into the record at trial. In it, Dr. Imrie gave only one
basis for his opinion—“[the] belief throughout the orthopedic community . . . that [an]
injury to a joint is more likely than not to lead to a degenerative change.”

                                              11
for that belief, such that his opinion had “no evidentiary value” under Jennings v.
Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 (“an ‘expert
opinion is worth no more than the reasons upon which it rests’ ”). Because the record
does not disclose that Kemp failed to ensure Dr. Imrie had an adequate foundation for his
opinion (but rather that Dr. Imrie failed to testify to that foundation), Welch’s first theory
of liability fails.
        Welch’s first theory of liability fails for a second reason as well—failure to
establish causation. “To prevail in a legal malpractice action, ‘[s]imply showing the
attorney erred is not enough.’ [Citation.] The plaintiff must also establish that, but for
the alleged malpractice, settlement of the underlying lawsuit would have resulted in a
better outcome.” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 166.) Here, Welch
must demonstrate that, if Kemp had ensured Dr. Imrie had a proper foundation for his
opinion, then she would have been awarded more damages at trial because Dr. Imrie’s
testimony would have been admitted and jurors would have credited it. She does not
even attempt to make that showing. Instead, her causation argument is limited to her
second theory of liability—that Kemp failed to properly advise her regarding the
settlement offer.
        D.      Failure to Advise in Connection With the Settlement Offer
        Welch’s second theory of liability is that Kemp committed malpractice by failing
to inform her, while the $350,000 offer was pending, that Dr. Imrie likely would not be
permitted to testify that she would need future knee replacement surgery because that
opinion lacked foundation. Welch characterizes the issue as a failure to keep her
reasonably informed about significant developments in the case, as required by
rule 3-500 of the California Rules of Professional Conduct. According to Welch,
between the hearing on the motions in limine (on April 28, 2011) and the section 402
hearing (on May 5, 2011) there developed “a significant legal question as to whether


                                              12
Dr. Imrie had a foundation to opine based on a reasonable medical certainty.” We
disagree.
       While Koch’s motions in limine sought to exclude Dr. Imrie’s opinions regarding
future knee surgery, they did not do so on the ground that the foundation he provided to
support the probability of the need for future knee surgery was inadequate. Rather, the
motions in limine were based on the theory that Dr. Imrie had not testified at his
deposition that it was medically probable that Welch would need future knee replacement
surgery. Likewise, at the hearing on the motions in limine, the question whether
Dr. Imrie had an adequate basis for the opinion that it was medically probable that Welch
would need future knee replacement surgery was not raised. Instead, that hearing
focused on whether Dr. Imrie would even opine that it was medically probable that
Welch would need future knee replacement surgery. Only when Dr. Imrie finally offered
that opinion at the section 402 hearing, and noted that he knew “of no data to support” it,
did the trial court question the foundational basis for the opinion. Because the specific
foundational challenge to Dr. Imrie’s opinion that ultimately resulted in its exclusion did
not arise until the section 402 hearing, there was no significant development about which
to inform Welch before that hearing.
       E.     Advice to Pursue Unsuccessful Appeal
       Welch’s third theory is that Kemp is liable for advising her to appeal the order
excluding evidence of her need for a future knee replacement. While Welch
characterizes that argument as a “theory of liability,” the substance of her argument is
that the fees she incurred on appeal should be included in her damages because she
incurred those fees to remedy Kemp’s errors. Because Welch has not carried her burden
on appeal to show the evidence compels a finding that Kemp committed malpractice as a
matter of law, we need not consider the proper measure of damages.
       To the extent Welch’s position is that Kemp’s advice regarding an appeal
constituted a separate instance of malpractice, that theory fails for two reasons. First, the
                                             13
theory appears not to have been raised below. It was not alleged in the complaint,
mentioned in Welch’s trial brief, raised in her counsel’s opening statement, or addressed
by her expert. Second, Welch’s appellate briefs contain no substantive argument
supporting the proposition that Kemp’s conduct in connection with her appeal constituted
malpractice. “When a point is asserted without argument and authority for the
proposition, ‘it is deemed to be without foundation and requires no discussion by the
reviewing court.’ ” (In re S.C. (2006) 138 Cal.App.4th 396, 408; accord Berger v.
Godden (1985) 163 Cal.App.3d 1113, 1117 [“failure of appellant to advance any
pertinent or intelligible legal argument . . . constitute[s] an abandonment of the [claim of
error]”].)
       F.      Welch’s Other Appellate Arguments
       Welch levels various criticisms at the trial court’s reasoning. For example, she
maintains the trial court improperly applied the judgmental immunity doctrine; failed to
presume this court’s decision in Welch v. Koch was correct; and ignored the core of her
malpractice claims, instead addressing collateral matters. Even if Welch’s critiques have
merit, they do not justify reversal. (Florio v. Lau, supra, 68 Cal.App.4th at p. 653 [“A
decision right in result will not be reversed because it is based on an erroneous theory.”].)
Therefore, we need not address them.
       G.      Section 998
               1.     Legal Principles and Standard of Review
       Section 998 is a cost-shifting statute designed to encourage pretrial settlements
and avoid needless litigation. (Barba v. Perez (2008) 166 Cal.App.4th 444, 451.) It
provides that “[i]f an offer made by a defendant is not accepted and the plaintiff fails to
obtain a more favorable judgment or award, . . . the court or arbitrator, 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
                                               14
arbitration, of the case by the defendant.” (§ 998, subd. (c)(1).) To be valid, a
section 998 offer must be made in good faith, which requires that the offer of settlement
be “ ‘realistically reasonable under the circumstances of the particular case.’ ” (Jones v.
Dumrichob (1998) 63 Cal.App.4th 1258, 1262.) “ ‘Normally, therefore, a token or
nominal offer will not satisfy this good faith requirement.’ ” (Ibid.)
       “As a general rule, the reasonableness of a defendant’s offer is measured, first, by
determining whether the offer represents a reasonable prediction of the amount of money,
if any, defendant would have to pay plaintiff following a trial, discounted by an
appropriate factor for receipt of money by plaintiff before trial, all premised upon
information that was known or reasonably should have been known to the defendant. . . .
[¶] If the offer is found reasonable by the first test, it must then satisfy a second test:
whether defendant’s information was known or reasonably should have been known to
plaintiff. This second test is necessary because the section 998 mechanism works only
where the offeree has reason to know the offer is a reasonable one.” (Elrod v. Oregon
Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699, fn. omitted (Elrod).) “Where, as
here, the offeror obtains a judgment more favorable than its offer, the judgment
constitutes prima facie evidence showing the offer was reasonable and the offeror is
eligible for costs as specified in section 998. The burden is therefore properly on
plaintiff, as offeree, to prove otherwise.” (Id. at p. 700.) We review the trial court’s
determination that a section 998 offer was reasonable and made in good faith for abuse of
discretion. (Elrod, supra, at p. 700.)
              2.      Analysis
       Welch argues Kemp’s offer to settle for a cost waiver was unreasonable because
he could not have anticipated that the trial court would apply the judgmental immunity
doctrine when he did not attempt to establish that defense. We conclude Welch has not
met her burden of showing that the trial court exercised its discretion in “ ‘an arbitrary,


                                               15
capricious or patently absurd manner.’ ” (Culbertson v. R. D. Werner Co., Inc. (1987)
190 Cal.App.3d 704, 710 (Culbertson).)
       A defendant is entitled to make a “modest settlement offer,” even if substantial
damages are claimed, based on his perception that he has a strong case. (Culbertson,
supra, 190 Cal.App.3d at p. 710.) Indeed, courts have held that an offer to waive costs
may be in good faith where it has significant monetary value. (See Hartline v. Kaiser
Foundation Hospitals (2005) 132 Cal.App.4th 458, 471; Jones v. Dumrichob, supra, 63
Cal.App.4th at p. 1264.) That was the case here, as Kemp sought over $19,000 in costs.
The trial court reasonably could have concluded that the settlement offer to waive costs
was reasonable based on the fact that Kemp had denied liability throughout the litigation.
(See Colbaugh v. Hartline (1994) 29 Cal.App.4th 1516, 1528-1529 [“ ‘When a defendant
perceives himself to be fault free and has concluded that he has a very significant
likelihood of prevailing at trial, it is consistent with the legislative purpose of section 998
for the defendant to make a modest settlement offer.’ ”].) We find no abuse of discretion.
III.   DISPOSITION
       The judgment is affirmed. Kemp shall recover his costs on appeal.




                                              16
                                                            Walsh, J.*




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




Welch v. Kemp
H041311

      *
        Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
