NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

I. PEREZ, a minor, by and through his 

Guardian ad Litem, Israel Perez; et al., 

Plaintiffs-Appellees, 

 v. 

UNITED STATES OF AMERICA, 

Defendant-Appellant.

No. 21-55318 

D.C. No. 

3:16-cv-01911-JAH-MDD 

MEMORANDUM*

I. PEREZ, a minor, by and through his 

Guardian ad Litem; et al., 

Plaintiffs-Appellants, 

 v. 

UNITED STATES OF AMERICA, 

Defendant-Appellee.

No. 21-55332 

D.C. No. 

3:16-cv-01911-JAH-MDD 

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted April 20, 2023

Pasadena, California

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUN 2 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: WARDLAW and KOH, Circuit Judges, and MCMAHON,** District 

Judge.

The United States appeals an award of damages to Plaintiffs Norma Perez 

and her son I. Perez in a Federal Tort Claims Act (“FTCA”) action where it was 

found liable for negligence that occurred during I. Perez’s birth, leaving I. Perez 

with permanent and severe physical and cognitive impairments. The Plaintiffs 

cross-appeal, contending that the district court clearly erred by awarding damages 

for facility care, as opposed to home care, to I. Perez after he turns 35 years old. 

We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court in 

both appeals. 

1. The district court did not err in awarding the noneconomic damages cap 

of $250,000 under California’s medical malpractice statute, Cal. Civ. Code 

§ 3333.2 (West 2022), to each Plaintiff. Under the FTCA, we apply California law 

because the malpractice during I. Perez’s birth occurred in California. See Daly v. 

United States, 946 F.2d 1467, 1469 (9th Cir. 1991); Taylor v. United States, 821 

F.2d 1428, 1430 (9th Cir. 1987). At the time of this action, section 3333.2(a) of 

the California Civil Code provided that “[i]n any action for injury against a health 

care provider based on professional negligence, the injured plaintiff shall be 

** The Honorable Colleen McMahon, United States District Judge for 

the Southern District of New York, sitting by designation.
3 

entitled to recover noneconomic losses.” Section 3333.2(b) limited the total 

amount of recoverable noneconomic damages, stating that “[i]n no action shall the 

amount of damages for noneconomic losses exceed two hundred fifty thousand 

dollars ($250,000).” 

The United States contends that § 3333.2(b) limits the total recovery in this 

lawsuit to $250,000, because Norma Perez and I. Perez joined their claims together

in one action and their claims arose out of the same incident of negligence. 

Because the California Supreme Court “has not squarely addressed” the issue of 

whether § 3333.2 applies to one lawsuit where multiple plaintiffs have joined their 

separate causes of action, “we must ‘predict how the highest state court would 

decide the issue using intermediate appellate court decisions, decisions from other 

jurisdictions, statutes, treatises, and restatements as guidance.’” See Judd v. 

Weinstein, 967 F.3d 952, 955–56 (9th Cir. 2020) (quoting Lewis v. Tel. Emps. 

Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996)). 

A plain reading of § 3333.2, combined with California case law, leads us to 

agree with the district court that California plaintiffs who have joined their separate

medical malpractice causes of action may each recover the full noneconomic 

damages cap to which they would be entitled had they filed separate lawsuits. 

Here, I. Perez suffered permanent injuries from perinatal asphyxiation, and 

therefore has a claim against the United States for medical malpractice. Norma 
4 

Perez has a separate and independent cause of action for serious emotional distress

and suffering both during childbirth and into the future. We note that the

California Supreme Court has held that “a mother can recover damages for the 

emotional distress suffered as a result of a negligent delivery causing injury to her 

child” that is not “purely derivative” of her child’s injury during childbirth. 

Burgess v. Superior Court, 831 P.2d 1197, 1199, 1202 (Cal. 1992). Because

Norma Perez and I. Perez each have independent causes of action against the 

United States, under the plain text of § 3333.2(a), they are each entitled to receive 

noneconomic damages up to $250,000.

Indeed, in Atkins v. Strayhorn, 273 Cal. Rptr. 231 (Cal. Ct. App. 1990), the 

Fourth District Court of Appeal held that each plaintiff could separately recover 

the noneconomic damages cap in one consolidated case raising two causes of 

action, a husband’s action for negligence and a wife’s action for loss of 

consortium, stemming from the same incident of medical malpractice. See id. at 

239. “Although [the wife’s] cause of action arises from bodily injury to her 

husband,” the court held that loss of consortium was a separate action as “the 

injury suffered is personal to her.” Id. at 238. Similarly, while Norma Perez and I. 

Perez’s injury arose out of the same incident of medical malpractice, they each 

suffered injury personal to each of them. The United States’s reliance on Yates v. 

Pollock, 239 Cal. Rptr. 383 (Cal. Ct. App. 1987), is misplaced. That case held that 
5 

noneconomic damages in a wrongful death action were capped at $250,000 

regardless of the number of plaintiffs. See id. at 386. But, as the Second District 

Court of Appeal itself noted in Yates, “the cause of action for wrongful death has 

been consistently characterized as ‘a joint one, a single one and an indivisible 

one.’” Id. at 386 (quoting Canavin v. Pac. Sw. Airlines, 196 Cal. Rptr. 82, 93 (Cal. 

Ct. App. 1983)). Unlike Plaintiffs’ separate actions for personal injury which 

could have been filed in separate lawsuits, “only one action [can] be brought for 

the wrongful death of a person thereby preventing multiple actions by individual 

heirs and the personal representative.” Id. (quoting Canavin, 196 Cal. Rptr. at 93) 

(alteration in original) (emphasis in original). 

2. The district court did not abuse its discretion by declining to establish a 

separate reversionary trust for I. Perez’s future medical expenses that would be 

offset by his Tricare-covered care, government healthcare for the military that I. 

Perez qualifies for through his father. The United States contends that the current 

structure of the trust—placing all of I. Perez’s future medical expenses into a 

reversionary trust with fixed periodic payments—impermissibly forces it to “pay 

twice” for I. Perez’s medical expenses, because it requires that the United States 

pay a fixed sum whether or not I. Perez uses Tricare. 

However, the district court did not structure the trust to require the United 

States to “pay twice.” Instead, after a trial where the district court heard extensive 
6 

testimony that Tricare was not meeting I. Perez’s needs, the district court found 

that “I. Perez should receive reasonably necessary medical care not covered by 

Tricare in a manner that does not otherwise enhance the damages award findings as 

provided for herein.” The district court properly complied with California law, 

which provides that an award of payments shall, on the request of any party, be 

fixed at judgment, periodic, and “only . . . subject to modification in the event of 

the death of the judgment creditor,” Cal. Civ. Proc. Code § 667.7(b)(1), and 

structured the award of payments to be “fixed and unalterable.” The United 

States’s proposed structure for the reversionary trust directly conflicts with 

California’s requirement of fixed periodic payments as it suggests that the 

scheduled payment should be modified whenever I. Perez uses Tricare. 

Because, as the United States concedes, I. Perez is not required to use 

Tricare-covered providers for future medical expenses, the district court did not 

abuse its discretion in calculating I. Perez’s future medical expenses excluding 

Tricare coverage and structuring the reversionary trust with fixed payments for 

those medical expenses in accordance with California law. 

3. Finally, the district court did not err when it awarded damages for home 

care for I. Perez from ages 3 to 35, and then damages for residential care at a 

facility for I. Perez from age 35. The district court’s determination that Plaintiffs 

failed to establish by a preponderance of the evidence that home care would be 
7 

reasonably necessary after age 35 is a factual determination reviewed for “clear 

error.” Trevino v. United States, 804 F.2d 1512, 1514 (9th Cir. 1986). An “award 

is clearly erroneous if, after a review of the record, we are ‘left with the definite 

and firm conviction that a mistake has been committed.’” Id. at 1515 (quoting 

Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir. 1984)). 

The district court’s award of damages to I. Perez for facility care after the 

age of 35 is not clearly erroneous. Under California law, “an injured plaintiff is 

entitled to recover the reasonable value of medical services that are reasonably 

certain to be necessary in the future.” Cuevas v. Contra Costa Cnty., 217 Cal. 

Rptr. 3d 519, 534 (Cal. Ct. App. 2017). Here, Plaintiffs’ own experts testified 

repeatedly that a residential care facility would reasonably meet I. Perez’s needs 

once he reached adulthood. Plaintiffs identify no legal authority that requires the 

district court to award Plaintiffs their choice of home care over facility care. Thus, 

the district court did not clearly err in finding that facility care after age 35 would 

reasonably meet I. Perez’s needs.1

AFFIRMED. 

1 Plaintiffs’ motion to take judicial notice (Dkt. 26) is GRANTED.