Filed 8/21/20 Movsesian v. Ourishian CA2/8
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 EIGHT

SEVAN MOVSESIAN,                                                 B296836

        Plaintiff and Appellant,                                 (Los Angeles County
                                                                 Super. Ct. No. BC615094)
        v.

LILIAN OURISHIAN et al.,

        Defendants and Respondents.



      APPEAL from a judgment and orders of the Superior Court
of Los Angeles County. Victor E. Chavez, Judge. Affirmed.
      The Arkin Law Firm, Sharon J. Arkin; Law Offices of
Robert Dourian, Robert Dourian and Z. Sondra Derderian;
Doumanian & Associates and Nancy P. Doumanian for Plaintiff
and Appellant
      Mark R. Weiner & Associates, Kathryn Albarian and
Michael Park for Defendants and Respondents.
                 _____________________________
      Appellant Sevan Movsesian sued Lilian Ourishian seeking
compensation for injuries he suffered when Ourishian struck him
with a car. The jury awarded Movsesian around $44,000 in
damages, which was significantly less than he sought. The trial
court subsequently denied Movsesian’s motion for new trial and
awarded Ourishian costs pursuant to Code of Civil Procedure
section 998. Movsesian appealed.
      For purposes of appeal, Movsesian designated a partial
reporter’s transcript of the proceedings below. He failed,
however, to state the points he intended to raise on appeal, as
required under rule 8.130(a)(2) of the California Rules of Court
(Rule 8.130(a)(2)). The failure to state a point precludes a party
from asserting it on appeal, unless the reviewing court permits
otherwise.
      Ourishian brought this deficiency to Movsesian’s attention
at least three times, the earliest being three days after he filed
the notice of designation of record. Movsesian, however,
addressed the issue for the first time in a motion filed
concurrently with his reply brief, in which he urges us to exercise
our discretion to overlook his failure to comply with Rule
8.130(a)(2). Because Movsesian’s violation was egregious and
inexcusable, we refuse to do so. Accordingly, we affirm the
judgment and orders.
       FACTUAL AND PROCEDURAL BACKGROUND
      In 2014, Ourishian struck Movsesian with her car while
Movsesian was riding a bicycle. Movsesian filed a complaint
against Ourishian, alleging he suffered a sacroiliac joint injury,
which caused permanent chronic pain. This alleged injury was
the basis for most of Movsesian’s claimed damages.




                                 2
       Ourishian conceded liability, and the case proceeded to a
jury trial to determine damages. Ourishian read to the jury
excepts from the deposition transcript of her expert, Dr. Robert
Klapper, who opined that the collision did not cause Movsesian to
suffer a sacroiliac joint injury. He based that opinion, in part, on
a radiologist’s report that an MRI, taken more than a year after
the collision, showed no pathology in the area (the MRI report).
According to Dr. Klapper, if there were a sacroiliac joint injury
caused by the collision, it would have appeared on the MRI.
       The jury returned a verdict for Movsesian in the amount of
$44,458.45, consisting of $31,458.45 for past medical expenses
and $13,000 for past noneconomic losses. It awarded nothing for
future economic losses, future lost earnings, and future
noneconomic losses.
       Juror Misconduct
       Movsesian filed a motion for new trial on the basis that one
of the jurors improperly inserted his own expert opinions into
deliberations. In support, Movsesian submitted a declaration
from Juror No. 4, which recounted that Juror No. 9 “started
[deliberations] by stating he worked at UCLA, in the fields of
orthopedics. He presented himself as an expert in the medical
field and spoke about his knowledge and experience on matters
presented during trial. [Juror No. 9] injected his own medical
opinions.” Juror No. 4 did not provide any further details.
       Movsesian also submitted declarations from two of his
attorneys, who spoke with Juror No. 9 and several other jurors
shortly after the trial. According to the attorneys, Juror No. 9
admitted making specific comments during deliberations based
on his personal experiences, including as an emergency room




                                 3
nurse. Movsesian argued the comments expressed improper
expert opinions and constituted misconduct.
        The trial court rejected Movsesian’s claim of juror
misconduct. In doing so, it declined to consider the declarations
from his attorneys, which it noted contained inadmissible
hearsay. The court concluded the declaration from Juror No. 4
was not sufficient to establish misconduct because the juror did
“not identify any statements, e.g., specific medical opinions made
by [Juror No. 9] that are tethered to a specific issue in the case,
that would be an ‘overt act’ of misconduct.”
        Admission of Deposition Testimony
        Movsesian also argued in his motion for new trial that the
court improperly admitted Dr. Klapper’s deposition testimony,
rather than requiring he testify in person. Ourishian responded
that it was necessary to read from the deposition because
Dr. Klapper’s surgery schedule presented a conflict with trial,
and Movsesian refused to allow him to testify out of order.
        The trial court rejected Movsesian’s arguments, finding the
reading of the deposition was proper under Code of Civil
Procedure section 2025.620, subdivision (c)(3).1 That provision
allows a party to use for any purpose the deposition of a witness
if the court finds “[e]xceptional circumstances exist that make it
desirable to allow the use of any deposition in the interests of
justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court.” (§ 2025.620, subd.
(c)(3).) The court explained that the “refusal to stipulate to
Dr. Klapper’s appearance out-of-order created an exceptional
circumstance for allowing Dr. Klapper’s deposition testimony to

1    All further undesignated statutory references are to the
Code of Civil Procedure.



                                 4
be read into the record because, otherwise, the Defendant
would . . . not have had expert testimony on the Plaintiff’s
medical condition and damages. In these circumstances, it was
desirable to allow the use of Dr. Klapper’s deposition in the
interests of justice.”
       Costs Award
       After trial, each party filed a memorandum of costs, and
each responded by filing motions to tax or strike the other party’s
memorandum. The primary dispute was whether Ourishian
made valid section 998 offers, thereby shifting the liability for
costs.
       Ourishian made her first section 998 offer in February
2018. The offer was for $50,000 and provided as follows:
       “Defendant[] Lilian Ourishian . . . offer[s] to settle this
       matter with plaintiff Sevan Movsesian pursuant to Section
       998 of the Code of Civil Procedure for the sum of
       $50,000.00, to be paid by draft issued to
       Sevan Movsesian, Kaiser Permanente and Law Offices of
       Robert Dourian, in exchange for a dismissal with prejudice
       of the complaint against offering defendant(s), each party
       to bear their own costs and attorney’s fees.”
Movsesian did not accept the offer.
       In October 2018, Ourishian made a second section 998
offer, this time for $80,000. Once again, Movsesian did not accept
the offer.
       In opposing Ourishian’s request for costs, Movsesian
argued the offers were unreasonable and made in bad faith, the
February offer was too uncertain, and the October offer
extinguished and superseded the February offer. The court




                                5
rejected each argument and awarded Ourishian $54,617.42 in
costs, dating back to the February offer.
       Movsesian timely appealed the judgment, the order
denying motion for new trial, and the order awarding costs.
                           DISCUSSION
I.     Movsesian’s Failure to Comply with Rule 8.130(a)(2)
       Precludes Him From Raising Any Points on Appeal
       Ourishian contends Movsesian is precluded from asserting
each point he raises on appeal given his failure to comply with
Rule 8.130(a)(2). We agree.
       A. Background
       On April 15, 2019, Movsesian filed a form notice
designating record on appeal, in which he requested only a single
pre-trial hearing be included in the reporter’s transcript. A
subsequent section of the form directs that if the “designated
proceedings DO NOT include all of the testimony, state the
points that you intend to raise on appeal.” It cites Rule
8.130(a)(2) and notes “your appeal will be limited to these points
unless, on motion, the reviewing court permits otherwise.”
Movsesian left this section blank.
       Three days later, Ourishian filed in the trial court an
objection to the notice on the basis that it failed to comply with
Rule 8.130(a)(2). Ourishian served the objection on Robert
Dourian, that is the attorney that signed the notice of
designation.
       About four months later, on August 23, 2019, Sharon Arkin
associated in as lead appellate counsel for Movsesian. Dourian
continues to represent Movsesian on appeal as well.
       On December 2, 2019, three days before Movsesian’s
opening brief was due, Arkin sent an email to Ourishian’s counsel




                                6
asking that she stipulate to augmenting the record to include the
full reporter’s transcript because “the entire transcript is
necessary in order to demonstrate prejudice.” Ourishian’s
counsel declined to stipulate and referred Arkin to her prior
objection related to the failure to comply with Rule 8.130(a)(2).
       Later that day, Arkin filed in this court a motion to
augment the record to include the entire reporter’s transcript, or
alternatively, transcripts for several proceedings that could be
prepared before the opening brief was due. The request asserts
the “entire transcript is necessary to demonstrate the trial court’s
abuse of discretion and resulting prejudice from its denial of the
motion for new trial.” This court denied the request with respect
to the entire reporter’s transcript, but granted the request as to
those proceedings that could be prepared quickly. Movsesian
filed the augmented reporter’s transcript the same day he filed
his opening brief.
       Ourishian filed her respondent’s brief on February 19,
2020. In it, she urges us to decline to consider the points raised
in Movsesian’s opening brief given his failure to state those
points in his notice designating record, as required under Rule
8.130(a)(2).
       Movsesian filed his reply brief about three months later, on
May 20, 2020. The same day, he filed a motion urging us to
overlook his failure to comply with Rule 8.130(a)(2). According to
Movsesian, his failure to comply with the rule was the result of
inadvertent error as well as Ourishian’s failure to serve the April
19, 2019 objection on all of his counsel. He also contends the
issues raised in his opening brief can be decided on the record
provided.




                                 7
       According to declarations attached to the motion, although
the notice designating record was signed by attorney Robert
Dourian, one of Movsesian’s other attorneys from a different firm,
Nancy Doumanian, prepared it. Doumanian mistakenly
overlooked the section requiring she identify all points to be
raised on appeal.
       Dourian did not deny receiving Ourishian’s objection to the
notice designating record, but explained he did not “adequately
understand or appreciate the technical deficiency.” He also
assumed Doumanian would take care of it, since she had been
tasked with all work necessary to move the appeal forward.
Doumanian, however, had not been served with the objection,
and therefore did not know about the issue until she received the
respondent’s brief.
       B. Analysis
       Rule 8.130(a)(2) states: “If the appellant designates less
than all the testimony [in the notice designating reporter’s
transcript], the notice must state the points to be raised on
appeal; the appeal is then limited to those points unless, on
motion, the reviewing court permits otherwise.” Enforcement of
Rule 8.130(a)(2) does not undermine the policy of deciding
appeals on their merits. (Aspen Grove Condominium Assn. v.
CNL Income Northstar LLC (2014) 231 Cal.App.4th 53, 60
(Aspen).)
       Here, Movsesian designated a partial reporter’s transcript
that did not include all the testimony given in the trial court, but
he failed to state in the notice any points to be raised on appeal.
As Movsesian concedes, under the plain language of Rule
8.130(a)(2), he is precluded from raising any points on appeal,
unless we permit otherwise. We decline to do so.




                                 8
       Movsesian’s failure to comply with Rule 8.130(a)(2) was
egregious and inexcusable. Ourishian’s objection brought the
issue to his attention more than a year ago, and only a few days
after he filed the deficient designation of record. Movsesian’s
excuses for not addressing the issue then—that the attorney who
received the objection did not understand the significance of the
issue and just assumed another attorney would take care of it—
are far from compelling. Indeed, they strain credulity.
       Even if the claims are true, Movsesian nonetheless fails to
explain why his lead appellate counsel, Arkin, did not address the
issue immediately after it was brought to her attention in
December 2019. Nor does he explain why, after the issue was
raised for the third time in the respondent’s brief, he waited
three additional months to finally address it.
       Movsesian is also wrong to claim the issues raised on
appeal can be fully resolved on the designated record. As
discussed more fully in the next section, we agree with his
previous representation to this court that the “entire transcript is
necessary to demonstrate the trial court’s abuse of discretion and
resulting prejudice from its denial of the motion for new trial.”
Moreover, despite challenging rulings related to claims of juror
misconduct, the admission of deposition testimony, and an award
of costs, Movsesian failed to designate a single transcript
evidencing any substantive discussion of those issues. His failure
to do so significantly limits our ability to review the issues.
       For these reasons, we decline to exercise our discretion to
overlook Movsesian’s complete failure to comply with Rule
8.130(a)(2). Movsesian, therefore, is precluded from raising any
points on appeal. (See Price v. Tree Topper Timber Co. (1962) 202
Cal.App.2d 412, 415 [appellant’s failure to identify any points on




                                 9
appeal waived all issues under predecessor to Rule 8.130(a)(2)];
see also Aspen, supra, 231 Cal.App.4th at p. 60 [declining to
consider issues raised in appellant’s opening brief that were not
identified in the designation of record]; McDaniel v. Dowell (1962)
210 Cal.App.2d 26, 30 [same].) As a result, he cannot meet his
burden of showing error, and we must affirm the trial court’s
judgment and orders.
II.    Movsesian’s Arguments Lack Merit
       Even if we were to overlook Movsesian’s complete failure to
comply with Rule 8.130(a)(2), we would reject each of his
arguments on the merits.
       A. Movsesian Has Not Shown Juror Misconduct
       The trial court did not err in refusing to grant a new trial
based on juror misconduct. The attorney declarations submitted
in support of the motion contained hearsay statements by Juror
No. 9, and the trial court properly excluded them on that basis.2
(See Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666,
1670 [declarations by investigator concerning purported
statements by two jurors during deliberations were inadmissible
hearsay]; People v. Bryant (2011) 191 Cal.App.4th 1457, 1468
[“a trial court does not abuse its discretion in denying a motion
for new trial based upon juror misconduct when the evidence in
support constitutes unsworn hearsay”].) Without the attorney
declarations, the only evidence supporting Movsesian’s claim is

2     Movsesian is simply wrong when he claims the attorney
declarations do not contain hearsay. The declarations relay that
Juror No. 9 admitted making certain comments during
deliberations, and Movsesian offered the declarations to prove
that Juror No. 9 actually made those comments during
deliberations. This is hearsay. (See Evid. Code, § 1200,
subd. (a).)



                                10
the declaration of Juror No. 4. That declaration is far too vague
and conclusory to support a finding of juror misconduct.
(Cf. People v. Cook (2015) 236 Cal.App.4th 341, 345 [vague or
conclusory allegations of juror misconduct are not sufficient to
create a reasonable belief that juror misconduct occurred];
People v. Rhodes (1989) 212 Cal.App.3d 541, 554 [affidavit was
“too vague and conclusionary to constitute an adequate
preliminary showing of juror misconduct”].)
       We reject Movsesian’s contentions that the trial court
should have admitted the attorney declarations under various
exceptions to the hearsay rule. There is nothing in the record
showing he made these arguments below, which forfeits them on
appeal.3 (See Shaw v. County of Santa Cruz (2008) 170
Cal.App.4th 229, 282–283 [to preserve a claim that evidence was
admissible under a hearsay exception, “the proponent has to have
alerted the trial court to the exception relied upon and borne the
burden below of laying the proper foundation”]; Clark v. Optical
Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 170
[appellant forfeited hearsay exception argument by failing to
raise it in the trial court].)




3      Movsesian insists he did not have an opportunity to
address the hearsay issue below because Ourishian did not raise
it in her opposition to the motion for new trial. Because
Movsesian did not provide any record of the hearing on his
motion for new trial, we may presume the hearsay issue was
raised at that hearing and the trial court allowed him to address
it. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564
(Denham); Foust v. San Jose Construction Co., Inc. (2011) 198
Cal.App.4th 181, 186–188 (Foust).)



                                11
      Regardless, Movsesian has not shown the hearsay
statements were admissible as declarations against interest
(Evid. Code, § 1230), excited utterances (Evid. Code, § 1240),
contemporaneous declarations explaining conduct (Evid. Code,
§ 1241), or statements of mental or physical state (Evid. Code,
§ 1250). Contrary to his claims, the comments did not subject
Juror No. 9 to contempt (see § 1209),4 were not made
spontaneously while under the stress of excitement caused by a
perception, were not made while Juror No. 9 was engaged in the
relevant conduct, and did not reflect the juror’s state of mind,
emotion, or physical sensation. To the extent Movsesian makes
other claims in his reply brief, they are untimely and we decline
to consider them. (See Reichardt v. Hoffman (1997) 52
Cal.App.4th 754, 764–765.)
      B. The Trial Court Did Not Err In Permitting Dr.
      Klapper’s Deposition Be Read to the Jury
      Movsesian contends the trial court abused its discretion to
the extent it found Dr. Klapper’s deposition testimony admissible
under section 2025.620, subdivision (d), or Evidence Code section
1291. He overlooks, however, that the trial court did not find the

4     In passing, Movsesian suggests Juror No. 9 admitted
consulting an outside orthopedic doctor to bolster his own expert
opinions. If true, such action might qualify as contempt under
section 1209, subdivision (a)(6), which forbids outside
communication or research about the case. However, we do not
agree with Movsesian that Juror No. 9 made such an admission.
According to one of the attorney declarations, Juror No. 9 said he
“spoke to one of the ortho[pedic doctors].” The juror did not say
when he spoke to the doctor or what they discussed. It is
therefore pure speculation to conclude Juror No. 9 discussed
issues in the case with the doctor.




                                12
deposition admissible under either provision; instead, it found it
admissible under section 2025.620, subdivision (c)(3).
Movsesian’s arguments related to that code section, made for the
first time in his reply brief, are untimely, and we may disregard
them on that basis. (See Reichardt v. Hoffman, supra, 52
Cal.App.4th at pp. 764–765.) The appellate record also does not
show Movsesian raised the arguments below, which forfeits them
on appeal. (See In re Marriage of Olson (1993) 14 Cal.App.4th 1,
15 [“ ‘As a general rule, issues not properly raised at trial will not
be considered on appeal.’ ”]; Gray1 CPB, LLC v. SCC
Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 897 [appellate
courts ignore arguments not presented and litigated in the trial
court].)
        We also reject Movsesian’s contention that Dr. Klapper’s
references to the MRI report improperly related inadmissible
hearsay, in violation of People v. Sanchez (2016) 63 Cal.4th 665
(Sanchez). When Movsesian raised the objection in a motion in
limine, Ourishian represented that she intended to introduce the
MRI report into evidence. Because Movsesian failed to provide a
complete record of the trial, we may presume she did so
successfully. (See Denham, supra, 2 Cal.3d at p. 564; Foust,
supra, 198 Cal.App.4th at pp. 186–188.) Regardless, Movsesian’s
own treating physician testified that he reviewed the MRI and
agreed with the findings in the MRI report. Dr. Klapper’s
references to the contents of the report, therefore, did not run
afoul of Sanchez. (See Sanchez, supra, 63 Cal.4th at p. 686 [an
expert may relate as true case-specific facts asserted in hearsay
statements if “they are independently proven by competent
evidence or are covered by a hearsay exception”].) Dr. Klapper
was also free to base his opinions on the MRI report and express




                                 13
those opinions to the jury, regardless of whether the report
contained inadmissible hearsay. (Id. at pp. 685–686 [an “expert
may still rely on hearsay in forming an opinion, and may tell the
jury in general terms that he did so”].)
       Even if the admission of Dr. Klapper’s deposition testimony
were error, reversal would not be warranted. The erroneous
admission of evidence is reversible only if it resulted in a
miscarriage of justice. (Evid. Code, § 353; Shaw v. County of
Santa Cruz (2008) 170 Cal.App.4th 229, 282.) We cannot make
that determination, however, given Movsesian failed to designate
a complete record of the trial. (See Cassim v. Allstate Ins. Co.
(2004) 33 Cal.4th 780, 800 [to determine whether there was a
miscarriage of justice, the reviewing court must examine the
entire cause, including the evidence].)
       C. The Court Properly Awarded Costs Based on the
       February Section 998 Offer
       Movsesian posits various reasons why the trial court erred
in awarding costs to Ourishian pursuant to the February section
998 settlement offer. None of his arguments has merit.
       1. The February Offer Was Not Superseded and
       Extinguished
       Contrary to Movsesian’s claims, Ourishian’s February offer
was not superseded and extinguished by her October offer.
In Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014
(Martinez), the California Supreme Court held where a “plaintiff
serves two unaccepted and unrevoked statutory offers, and the
defendant fails to obtain a judgment more favorable than either
offer, the trial court retains discretion to order payment of expert
witness costs incurred from the date of the first offer.” (Id. at
p. 1026.) Here, Ourishian made multiple offers to settle, and




                                14
Movsesian failed to obtain a judgment more favorable than either
of them. Under Martinez, the trial court had discretion to order
payment of costs incurred from the date of the first offer.
       Distefano v. Hall (1968) 263 Cal.App.2d 380 (Distefano),
is distinguishable. In that case, the offeree obtained a judgment
less favorable than the first settlement offer, but more favorable
than the second settlement offer. (Distefano, at pp. 383–384.)
Here, in contrast, Movsesian obtained a judgment less favorable
than both section 998 offers. For that reason, Martinez controls.
Indeed, Martinez distinguishes Distefano on this very basis.
(Martinez, supra, 56 Cal.4th at pp. 1025–1026.)
       2. The February Offer Was Reasonable and Made in
       Good Faith
       There is no merit to Movsesian’s contention that the
February offer was not a reasonable, good faith offer. To decide
the issue, we consider two factors: (1) whether the offer was
within the range of reasonably possible results at trial; and
(2) whether the offeror’s information was known, or should have
been known, by the offeree. (Elrod v. Oregon Cummins Diesel,
Inc. (1987) 195 Cal.App.3d 692, 699.) “[W]hether a section 998
offer was reasonable and made in good faith is a matter left to the
sound discretion of the trial court.” (Id. at p. 700.)
       As to the first factor, Movsesian points to nothing in the
record showing that, as of February 2018, $50,000 was not within
the range of reasonably possible results at trial. (Licudine v.
Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 924
[reasonableness is based on the circumstances when the offer was
made].) The fact that the offer exceeded the jury verdict is prima
facie evidence that it was. (Id. at p. 926; see Calvo Fisher &
Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608, 629.) Movsesian




                                15
suggests the verdict does not accurately reflect the value of the
case because it was tainted by inadmissible testimony from
Dr. Klapper and juror misconduct. We have already rejected his
arguments on these issues, and we reject them again for the
same reasons.
       Movsesian does not meaningfully contest the second factor;
nor could he. Nothing in the record even suggests Ourishian
possessed information unknown to Movsesian when the offer was
made. Indeed, she represented that the offer was based on a
Kaiser lien for medical services totaling around $30,000, which
was provided to her by Movsesian. The trial court did not abuse
its discretion in finding the offer was reasonable and made in
good faith.
       3. The February Offer Was Not Defective on Its Face
       Movsesian contends the term in the February offer
requiring the $50,000 be “paid by draft issued to Sevan
Movsesian, Kaiser Permanente and Law Offices of Robert
Dourian” rendered the offer defective on its face.5 We disagree.
       Contrary to Movsesian’s claims, the term did not make the
offer contingent upon acceptance by non-parties. (See Meissner v.
Paulson (1989) 212 Cal.App.3d 785, 791 [“only an offer made to a
single plaintiff, without need for allocation or acceptance by other
plaintiffs, qualifies as a valid offer under section 998.”]) The offer
was made to Movsesian alone. Although it required Kaiser
Permanente (Kaiser) and counsel be named as payees on the


5     Presumably, Kaiser Permanente and counsel were named
payees because they had claims to any recovery by Movsesian.
Kaiser Permanente paid for or provided Movsesian’s medical
care, and it had a lien over any settlement or judgment. Counsel
had a contingency fee arraignment with Movsesian.



                                 16
draft, it did not give either any additional authority to accept or
reject it. The offer also was not invalid for failing to specify how
much of the $50,000 was owed to Kaiser and counsel to satisfy
their respective claims to the settlement. (See Toste v.
CalPortland Construction (2016) 245 Cal.App.4th 362, 374 [term
specifying the offeree was “ ‘responsible for all medical
expenses/liens’ ” did not invalidate a section 998 offer].)
       There is also no merit to Movsesian’s contention that the
term imposed an additional condition that was incapable of
precise valuation. According to Movsesian, the term negatively
impacted his ability to negotiate how much of the settlement was
owed to counsel and Kaiser, and gave counsel and Kaiser the
power to withhold their endorsements unless he agreed to their
own terms and conditions. Such consequences, Movsesian
suggests, impacted the value of the settlement offer, but did so in
a way that he could not calculate with precision. (See Berg v.
Darden (2004) 120 Cal.App.4th 721, 727 [the offeree must be able
to clearly evaluate the worth of the offer].)
       Movsesian wrongly assumes that, if Kaiser and his counsel
were not payees, he would have received the settlement funds
directly, without first having to negotiate the amounts owed to
each. In practice, no matter who was named on the draft, it
likely would have been given directly to Movsesian’s counsel.
Counsel, in turn, would have had the authority to withhold any
disputed funds until Movsesian resolved the outstanding claims.
(See, e.g., Fletcher v. Davis (2004) 33 Cal.4th 61, 69 [when
settlement proceeds have been deposited in the client’s trust
account, the attorney may withhold an amount equivalent to the
portion disputed under a charging lien].) Counsel almost
certainly would have exercised that authority; otherwise, he




                                17
would have risked extinguishing his entitlement to the funds and
exposing himself to personal liability to Kaiser. (See Kaiser
Foundation Health Plan, Inc. v. Aguiluz (1996) 47 Cal.App.4th
302, 307 disapproved of on other grounds by Snukal v.
Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754 [attorney
was liable for settlement proceeds disbursed to his client in
knowing disregard of a health care provider’s lien]; see also
Fletcher v. Davis, supra, 33 Cal.4th at p. 69, fn. 2 [to protect a
charging lien, an attorney must refuse to endorse a settlement
draft jointly payable to the attorney and client].) If the parties
could not resolve their disputes informally, counsel could have
commenced an interpleader action to formally resolve the
competing claims to the funds. (See § 386, subd. (b); Hood v.
Gonzales (2019) 43 Cal.App.5th 57 [attorney filed interpleader
action to resolve client’s and lienholders’ competing claims to
settlement funds]; Cal. Prac. Guide Prof. Resp. Ch. 9-F, § 9:340
[faced with conflicting demands by a client and a lienholder, an
attorney may commence an interpleader action].) In that case,
Movsesian would not have received any disputed funds until after
the interpleader action was resolved, either through settlement
or a judicial determination.
       Although the above procedures would affect only “disputed”
funds, the record suggests Movsesian’s counsel and Kaiser could
have made claims to the entire settlement payment. In
opposition to Ourishian’s request for costs, for example,
Movsesian represented that when the settlement offer was made,
he had already incurred $48,300 in medical bills and $6,557 in
litigation costs. This was in addition to any amounts owed to his
attorney under the contingency fee agreement. It is unlikely,
therefore, Movsesian would have received any portion of the




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settlement before negotiating those claims, even if he were the
sole payee on the settlement draft. As a result, he would have
been in essentially the same position as if he, counsel, and Kaiser
were jointly named as payees. Considering these circumstances,
we do not agree with Movsesian that the term naming counsel
and Kaiser as payees impacted the value of the offer in a
meaningful way. The February offer was not defective on its
face.6
                          DISPOSITION
       The judgment and orders are affirmed. Respondents are
awarded costs on appeal.




                                                 BIGELOW, P. J.
We Concur:


                  STRATTON, J.




                  WILEY, J.




6     Because we reject Movsesian’s arguments related to the
February offer, there is no reason to consider his arguments
related to the October offer.



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