1

Filed 12/15/14

IN THE SUPREME COURT OF CALIFORNIA

HAMID RASHIDI, )

)

Plaintiff and Appellant, )

) S214430

v. )

) Ct.App. 2/4 B237476

FRANKLIN MOSER, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. BC392082

____________________________________)

In professional negligence actions against health care providers, recovery of 

noneconomic damages is capped at $250,000. (Civ. Code, § 3333.2, enacted as 

part of the Medical Injury Compensation Reform Act of 1975 (MICRA).)

1 In any 

action, liability for noneconomic damages is several only, so that defendants pay 

in proportion to their share of fault. (§ 1431.2, part of the Fair Responsibility Act 

of 1986, enacted by passage of Proposition 51.)2

Here we consider whether a jury‟s award of noneconomic damages, 

reduced by the court to $250,000 under MICRA, may be further diminished by 

 

1 Further statutory references are to the Civil Code, unless otherwise 

specified.

2 Noneconomic damages compensate the plaintiff for “pain, suffering, 

inconvenience, physical impairment, disfigurement and other nonpecuniary 

damage.” (§ 3333.2, subd. (a).) Section 1431.2, subdivision (b)(2) similarly 

defines noneconomic damages as “subjective, non-monetary losses including, but 

not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, 

loss of society and companionship, loss of consortium, injury to reputation and 

humiliation.”
2

setting off the amount of a pretrial settlement attributable to noneconomic losses, 

even when the defendant who went to trial failed to establish the comparative fault 

of the settling defendant. The Court of Appeal held that such a further reduction is 

required by the MICRA cap.

We disagree. It would be anomalous to allow a defendant to obtain a setoff 

against damages for which he is solely liable. Neither the text nor the history of 

section 3333.2 reflects such an intent. Rather, the Legislature sought to address 

the problem of unpredictable jury awards. The limitation on noneconomic 

damages restrains settlements indirectly, by providing a firm ceiling on potential 

liability as a basis for negotiation. Only noneconomic damages awarded in court 

are actually capped.

I. BACKGROUND

A. Trial Court Proceedings

According to the complaint, 26-year-old Hamid Rashidi went to the 

emergency room at Cedars-Sinai Medical Center (Cedars-Sinai) in April 2007 

with a severe nosebleed. He was treated and discharged, but returned the next 

month with the same symptom. Dr. Franklin Moser examined him and

recommended surgery. In an operation performed the same day, Moser ran a 

catheter through an artery in Rashidi‟s leg up into his nose. Tiny particles were 

injected through the catheter to irreversibly block certain blood vessels. The 

particles were manufactured by Biosphere Medical, Inc. (Biosphere Medical). 

When Rashidi awoke after surgery, he was permanently blind in one eye.

Rashidi sued Moser and Cedars-Sinai for medical malpractice and medical 

battery. He sued Biosphere Medical for product liability, failure to warn, 

negligence per se, breach of express and implied warranty, and misrepresentation. 

The theory of liability against Biosphere Medical was that its particles were able 

to travel through very small blood vessels and collateral veins, causing a 
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significant risk they would migrate to places other than the intended sites. They 

did so here, causing Rashidi‟s blindness. Rashidi claimed Biosphere Medical had 

failed to disclose this risk, or the fact that the particles were irregular in size. 

Instead it marketed them as being uniform, allowing particular arteries to be 

accurately targeted.

Rashidi settled with Biosphere Medical for $2 million and with CedarsSinai for $350,000. The case went to trial against Moser alone. Moser presented 

no evidence of Cedars-Sinai‟s fault, and the court ruled that the evidence was

insufficient to support instructions on Biosphere Medical‟s degree of fault. The 

jury found that Moser‟s negligence caused Rashidi‟s injury. It awarded $125,000 

for future medical care, $331,250 for past noneconomic damages, and $993,750 

for future noneconomic damages. The court reduced the noneconomic damages to 

$250,000, conforming to the MICRA cap.

Moser sought offsets against the judgment for the pretrial settlements with 

Cedars-Sinai and Biosphere Medical. The court rejected this claim, finding no 

basis for allocating the settlement sums between economic and noneconomic 

losses, and noting that the jury made no finding as to the settling defendants‟ 

proportionate fault. Moser appealed, contending he was entitled to offsets against

both the economic and noneconomic damage awards. He did not dispute the 

ruling that he had made an insufficient showing of comparative fault on the part of 

Cedars-Sinai or Biosphere Medical. Rashidi cross-appealed, challenging the 

constitutionality of MICRA. 

B. The Court of Appeal Decision

The Court of Appeal held that offsets were required. Code of Civil 

Procedure section 877 allows a nonsettling tortfeasor to set off the amount of a 

jointly liable tortfeasor‟s settlement against damages awarded at trial. However, 

tortfeasors are jointly liable for only economic damages. Civil Code section 
4

1431.2 imposes “a rule of strict proportionate liability” on noneconomic damages. 

(DaFonte v. Up-right, Inc. (1992) 2 Cal.4th 593, 600.) “[E]ach defendant is liable 

for only that portion of the plaintiff‟s noneconomic damages which is 

commensurate with that defendant‟s degree of fault for the injury.” (Evangelatos 

v. Superior Court (1988) 44 Cal.3d 1188, 1198.) 3 Accordingly, as the Court of 

Appeal recognized, when a pretrial settlement does not differentiate between

economic and noneconomic losses, a postverdict allocation is required because 

“only the amount attributable to the joint responsibility for economic damages 

may be used as an offset.” (Ehret v. Congoleum Corp. (1999) 73 Cal.App.4th 

1308, 1320.)

A widely accepted method for making such a postverdict allocation was 

provided in Espinoza v. Machonga (1992) 9 Cal.App.4th 268, 276–277 

(Espinoza). The percentage of the jury‟s award attributable to economic damages 

is calculated and applied to the settlement, yielding the amount that the nonsettling 

defendant is entitled to offset. (Espinoza, at p. 277; see Jones v. John Crane, Inc.

(2005) 132 Cal.App.4th 990, 1006; Ehret v. Congoleum Corp, supra, 73 

Cal.App.4th at p. 1320; Poire v. C.L. Peck/Jones Brothers Construction Corp. 

(1995) 39 Cal.App.4th 1832, 1838-1839.) Following this formula, the Court of 

Appeal determined that the percentage of Rashidi‟s award attributable to economic 

damages was 8.62 percent ($125,000 in economic damages divided by the total 

award of $1,450,000). Applying that percentage to the $2 million settlement with 

Biosphere Medical, the court concluded that $172,400 of the settlement was for 

 

3 “In any action for personal injury, property damage, or wrongful death, 

based upon principles of comparative fault, the liability of each defendant for noneconomic 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.” 

(§ 1431.2, subd. (a).)
5

economic losses, completely offsetting the jury‟s $125,000 economic damages

award. Rashidi does not challenge this aspect of the judgment.

The court performed a different calculation for the Cedars-Sinai settlement. 

Cedars-Sinai, like Moser and unlike Biosphere Medical, is a health care provider 

protected by MICRA. Therefore, the court first reduced the jury‟s award of 

noneconomic damages to $250,000 under section 3333.2. It added the economic 

damages of $125,000 to that amount, and determined that economic damages were 

33.33 percent of the reduced total award. Applying that ratio to the $350,000 

Cedars-Sinai settlement, the court allocated $116,655 of the settlement to 

economic losses and the remaining $233,345 to noneconomic losses.

The court then considered the intersection of the MICRA cap on 

noneconomic damages with the rule of section 1431.2 that liability for 

noneconomic damages is not joint, but several. It acknowledged that ordinarily 

each health care provider would pay a share of the noneconomic damages based 

on its own comparative fault. (Gilman v. Beverly California Corp. (1991) 231 

Cal.App.3d 121, 128–130.) The court also noted that “ „[a] defendant bears the 

burden of proving affirmative defenses and indemnity cross-claims. 

Apportionment of noneconomic damages is a form of equitable indemnity in 

which a defendant may reduce his or her damages by establishing others are also 

at fault for the plaintiff‟s injuries. . . .‟ (Wilson v. Ritto (2003) 105 Cal.App.4th 

361, 369.)”4

Here, Moser failed to establish that any other defendant was at fault. Thus, 

section 1431.2 would require him to pay the entire amount of the $250,000 

 

4 See Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 

8 Cal.4th 100, 118 (indemnity plaintiff bears burden of proving indemnitor‟s 

fault); Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 444 (defendant seeking 

offset under § 1431.2 must prove each fact essential to recovery).
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noneconomic damage award, unless MICRA demanded a different result. The 

court noted that nothing in section 3333.2 addresses the proportionate share each 

health care provider must pay for noneconomic damages. The statute sets an 

absolute limit on the total amount of damages for noneconomic loss an injured 

plaintiff may recover from all defendant health care providers in a single action. 

The court observed, “This serves the purpose of MICRA: „to reduce the cost of 

medical malpractice litigation, and thereby restrain the increase in medical 

malpractice insurance premiums.‟ (Fein v. Permanente Medical Group (1985) 38 

Cal.3d 137, 159.)” 

Rashidi relied on Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48 

(Hoch). The Hoch plaintiffs sought only noneconomic damages at trial after 

settling with several defendants for a total of $382,500. The jury returned a 

damages award of $500,000, and the court entered judgment against the 

nonsettling defendant for $175,000, consistent with the jury‟s finding that it was 

35 percent at fault. The trial court refused to set off the settlements against the 

judgment. (Id. at p. 62.) On appeal, the nonsettling defendant contended the 

plaintiffs had obtained a windfall because their total recovery ($557,500, including 

the settlements), exceeded the amount of damages awarded by the jury. (Id. at p. 

66.)

The Hoch court disagreed. It reasoned in part that comparing the total 

recovery with the jury‟s award was inappropriate, because “ „settlement dollars are 

not the same as damages. Settlement dollars represent a contractual estimate of 

the value of the settling tortfeasor‟s liability and may be more or less than the 

proportionate share of the plaintiff[‟]s damages. The settlement includes not only 

damages, but also the value of avoiding the risk, expense, and adverse public 

exposure that accompany going to trial. There is no conceptual inconsistency in 

allowing a plaintiff to recover more from a settlement or partial settlement than he 
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could receive as damages.‟ ” (Hoch, supra, 24 Cal.App.4th at pp. 67-68, quoting

Duncan v. Cessna Aircraft Co. (Tex. 1984) 665 S.W.2d 414, 431–432.)

The Court of Appeal here was not persuaded. Noting that neither Hoch nor 

Duncan involved a cap on damages like MICRA‟s, the court said, “MICRA does 

not distinguish between settlement dollars and judgments; it addresses a plaintiff‟s 

total recovery for noneconomic losses.” The court concluded that MICRA, as the 

more specific statute, must be read as an exception to section 1431.2‟s more 

general limitation on liability for noneconomic damages according to 

proportionate fault. It modified the judgment to reflect a deduction of $233,345 

for the part of the Cedars-Sinai settlement attributable to noneconomic losses, 

resulting in a total award to Rashidi of $16,655. The court rejected Rashidi‟s 

constitutional challenge to MICRA.

We granted Rashidi‟s petition for review, limiting the question to the 

propriety of the setoff against noneconomic damages granted by the Court of 

Appeal.

II. DISCUSSION

The relevant MICRA provisions are these:

“(a) In any action for injury against a health care provider based on 

professional negligence, the injured plaintiff shall be entitled to recover 

noneconomic losses to compensate for pain, suffering, inconvenience, physical 

impairment, disfigurement and other nonpecuniary damage.

“(b) In no action shall the amount of damages for noneconomic losses 

exceed two hundred fifty thousand dollars ($250,000).” (§ 3333.2.)

Rashidi argues that the plain terms of section 3333.2 distinguish between 

“losses” and “damages.” He contends he was entitled to recover his 

“noneconomic losses” without limitation by way of settlement under subdivision 

(a), while his recovery of “damages for noneconomic losses” at trial was limited 
8

to $250,000 under subdivision (b). If the statute is read this way, the conflict 

discerned by the Court of Appeal between sections 1431.2 and 3333.2 does not 

exist. With no cap on settlement recoveries, Rashidi would be entitled to the full 

amounts of both the noneconomic portion of the Cedars-Sinai settlement, under

the Espinoza formula, and the capped award of noneconomic damages at trial, for 

which Moser was solely liable under section 1431.2 because he failed to establish 

fault on the part of any other defendant.

Moser argues that subdivisions (a) and (b) of section 3333.2 are both 

concerned with a plaintiff‟s total recovery in the entire “action.” He claims the 

Legislature used the terms “losses” and “damages” interchangeably. Moser 

contends that recovery should not vary depending on the number of health care 

provider defendants, and that permitting a plaintiff to recover more than $250,000 

in noneconomic losses by settling with one defendant and going to trial with 

another would subvert MICRA‟s purpose. 

Rashidi‟s reading of section 3333.2 is the more reasonable. “Ordinarily, 

where the Legislature uses a different word or phrase in one part of a statute than it 

does in other sections or in a similar statute concerning a related subject, it must be 

presumed that the Legislature intended a different meaning. (Committee of Seven 

Thousand v. Superior Court (1988) 45 Cal.3d 491, 507.)” (Campbell v. Zolin

(1995) 33 Cal.App.4th 489, 497.) The distinction between “damages,” which are 

capped under subdivision (b) of section 3333.2, and “losses,” which are addressed 

in subdivision (a), is well understood. “Loss” is the generic term, which includes 

“damage” as a subset. (Nordahl v. Department of Real Estate (1975) 48 

Cal.App.3d 657, 664.)

“[T]he term „damages‟ . . . , both in its legal and commonly understood or 

„ “ordinary and popular sense,” ‟ is limited to „money ordered by a court‟ . . . .” 

(County of San Diego v. Ace Property & Casualty Ins. Co. (2005) 37 Cal.4th 406, 
9

417, quoting Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 

24 Cal.4th 945, 969; see 24 Cal.4th at p. 962 [“ „[d]amages‟ exist traditionally 

inside of court”].) Noneconomic damages, in particular, are ascertainable only at 

trial. “They are inherently nonpecuniary, unliquidated and not readily subject to 

precise calculation. The amount of such damages is necessarily left to the 

subjective discretion of the trier of fact.” (Greater Westchester Homeowners 

Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 103; see Walnut Creek Manor v. 

Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 263 [noneconomic 

damages “defy a fixed rule of quantification” and are traditionally left to the trier 

of fact].) Accordingly, the ordinary meaning of the statutory terms indicates that 

the noneconomic “damages” identified in section 3333.2, subdivision (b) are 

limited to amounts awarded by a court. 

It is clear that the Legislature knew how to include settlement dollars when 

it designed limits for purposes of medical malpractice litigation reform. Business 

and Professions Code section 6146, subdivision (a), a MICRA provision capping 

the contingency fees of plaintiffs‟ counsel, specifies that its fee limitations “shall 

apply regardless of whether the recovery is by settlement, arbitration, or 

judgment . . . .” (See Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 923-

924.) No similar provision appears in section 3333.2. “ „Where a statute, with 

reference to one subject contains a given provision, the omission of such provision 

from a similar statute concerning a related subject is significant to show that a 

different intention existed.‟ ” (City of Port Hueneme v. City of Oxnard (1959) 52 

Cal.2d 385, 395; accord, Committee of Seven Thousand v. Superior Court, supra, 

45 Cal.3d 491, 507.)

Neither the parties nor amici curiae direct us to anything in the legislative 

history of section 3333.2 that indicates an intent to include settlement recoveries in 

the cap on noneconomic damages. To the contrary, we have noted that the 
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Legislature had jury awards in mind when it enacted the cap, and that only a

collateral impact on settlements was contemplated. In Fein v. Permanente 

Medical Group, supra, 38 Cal.3d 137, where the constitutionality of the cap was 

upheld, this court observed that one problem identified in the legislative hearings 

was the unpredictable size of large noneconomic damage awards, “resulting from 

the inherent difficulties in valuing such damages and the great disparity in the 

price tag which different juries placed on such losses. The Legislature could 

reasonably have determined that an across-the-board limit would provide a more 

stable base on which to calculate insurance rates. Furthermore, as one amicus 

suggests, the Legislature may have felt that the fixed $250,000 limit would 

promote settlements by eliminating „the unknown possibility of phenomenal 

awards for pain and suffering that can make litigation worth the gamble.‟ ” (Id. at 

p. 163.) 

Thus, the Legislature was primarily concerned with capricious jury awards 

when it established the MICRA cap. However, excluding settlement dollars from 

the cap does not leave settlements unaffected. The prospect of a fixed award of 

noneconomic damages not only increases plaintiffs‟ motive to settle, as noted in 

Fein, but also restrains the size of settlements. Settlement negotiations are based 

on liability estimates that are necessarily affected by the cap. By placing an upper 

limit on the recovery of noneconomic damages at trial, the Legislature indirectly 

but effectively influenced the parties‟ settlement calculations.

Allowing the proportionate liability rule of section 1431.2 to operate in 

conjunction with the cap on damages imposed by section 3333.2 enhances 

settlement prospects. As Rashidi points out, if nonsettling defendants were 

assured of an offset against noneconomic damages regardless of their degree of 

fault, an agreement with one defendant would diminish the incentive for others to 

settle. Conversely, if all defendants are responsible for their proportionate share of 
11

noneconomic damages, settlements are encouraged. Nonsettling defendants must 

weigh not only their exposure to liability for noneconomic damages within the 

limits imposed by section 3333.2, but also the prospect of having to prove the 

comparative fault of settling defendants in order to obtain a reduction under 

section 1431.2. 

Our reading of the statutes is confirmed by considering an alternate 

scenario, where it is clear the MICRA cap could not function effectively as a limit 

on recovery for noneconomic losses by way of settlement. Suppose the CedarsSinai and Biosphere Medical settlements in this case were interchanged, so that 

Cedars-Sinai settled for $2 million and Biosphere Medical for $350,000. In that 

circumstance, under either of the allocation formulas applied by the Court of 

Appeal, the portion of the Cedars-Sinai settlement attributable to noneconomic 

losses would far exceed the $250,000 cap imposed by section 3333.2. Yet no 

MICRA provision, and no other statute, authorizes a posttrial reduction in the 

amount of a settlement.

We conclude that the cap imposed by section 3333.2, subdivision (b) 

applies only to judgments awarding noneconomic damages. Here, the cap 

performed its role in the settlement arena by providing Cedars-Sinai with a limit 

on its exposure to liability. Had Moser 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. The Court of Appeal 

erred, however, in allowing Moser a setoff against damages for which he alone 

was responsible.
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III. DISPOSITION

The Court of Appeal‟s judgment is reversed insofar as it reduced the award 

of noneconomic damages below $250,000, and affirmed in all other respects.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

LIU, J. 

DETJEN, J.*

______________________________

* Associate Justice of the Court of Appeal, Fifth Appellate District, assigned 

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Rashidi v. Moser

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 219 Cal.App.4th 1170

Rehearing Granted

__________________________________________________________________________________

Opinion No. S214430

Date Filed: December 15, 2014

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Richard L. Fruin, Jr.

__________________________________________________________________________________

Counsel:

Balaban & Speilberger, Daniel Balaban, Andrew J. Speilberger; Esner, Chang & Boyer, Stuart B. Esner 

and Holly N. Boyer for Plaintiff and Appellant.

Thorsnes Bartolotta McGuire and Benjamin I. Siminou for Michael J. Barger as Amicus Curiae on behalf 

of Plaintiff and Appellant.

Steven B. Stevens for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and 

Appellant.

Reback, McAndrews, Kjar, Warford & Stockalper, Robert C. Reback; Cole Pedroza, Curtis A. Cole,

Kenneth R. Pedroza, Matthew S. Levinson and Cassidy C. Davenport for Defendant and Appellant.

Tucker Ellis, E. Todd Chayet, Rebecca A. Lefler, Lauren H. Bragin and Corena G. Larimer for California 

Medical Association, California Dental Association, California Hospital Association and American 

Medical Association as Amici Curiae on behalf of Defendant and Appellant.

Manatt, Phelps & Phillips and Harry W.R. Chamberlain II for Association of Southern California Defense 

Counsel as Amicus Curiae on behalf of Defendant and Appellant.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Defendant 

and Appellant.
2

Counsel who argued in Supreme Court (not intended for publication with opinion):

Stuart B. Esner

Esner, Chang & Boyer

234 East Colorado Boulevard, Suite 750

Pasadena, CA 91101

(626) 535-9860

Kenneth R. Pedroza

Cole Pedroza

2670 Mission Street, Suite 200

San Marino, CA 91108

(626) 431-2787