Filed 4/20/21 McCarley v. Anesthesia Ser vice Medical Group CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

STEPHANIE MCCARLEY,

Plaintiff and Respondent,

v.

ANESTHESIA SERVICE MEDICAL GROUP, INC., et al .,
Defendants and Appellants. D074353

(San Diego Super. Ct. No. 37

- 2014

- 0018445

- CU

- MM

- CTL)

APPEAL from a judgment of the Superior Court of San Diego County,
Eddie C. Sturgeon, Judge. Affirmed

. Horvitz & Levy, S. Thomas Todd, H. Thomas Watson , Scott Dixler ; Wilson, Elser, Moskowitz, Edelman & Dicker, and Robert W. Harrison for Defendants and Appellants. Kenneth M. Sigelman & Associates, Kenneth M. Sigelman; Siminou Appeals and Benjamin I. Siminou for Plaintiff and Respondent.2

Plaintiff and respondent Stephanie McCarley sued defendant s and appellants Anesthesia Service Medical Gr oup, Inc. (ASMG) and Dr. Edgar Canada, among others, for medical neglige n ce, alleging she suffered a brain injury when Dr. Canada failed to take steps to raise her blood pressure while
under anesthesia for a procedure. S he made a Code of Civil Procedure

s ection 998 offer to Dr. Canada, to which he did not respond. 1 The matter proceeded to trial, and McCarley obtained a judgment that included damages for future attendant care and prejudgment interest based on the section 998 offer. Defendants appeal. The y contend Dr. Canada was within the standard of care as a matter of law; the trial court improperly excluded proposed expert tes timony regarding polycystic ovary syndrome (PCOS) ; the award of future attendant care was based on speculation; and the section 998 offer was invalid. We conclude substantial evidence supports the jury’s negligence finding and the future attendant care award , and defendants do not establish exclusion of t he exper t testimony was reversible error

. We further conclude defendants forfeited their section 998 argument. We affirm the judgment

.

FACTUAL AND PROCEDURAL BACKGROUND
I. Underlying events On March 21, 2013, McCarley went to Rady Children’s Hospital for an endoscopy , a nonsurgical procedure to examine the digestive tract

. At the time, she was an 18

- year old high school senior , and had been diagnosed with PCOS approximately three years earlier

. Gastroenterologist Neelish Tipnis

1 Statutory references are to the Code of Civil Procedure unless otherwise noted.3

performed the endoscop y , and Dr. Canada was the ane sthesiologist

. Among other drugs, Dr. Canada used an inhaled anesthetic, sevoflurane

. Anesthetic drugs can cause blood pressure to drop. Systolic blood

pressure measures the pressure as the heart beats and squeezes blood out , while diastolic pressure measure s the lowest point before the next beat. They
can be combined into mean arterial blood pre ssure, or MAP , expressed in millimeters of mercury (mmHg)

. During and after the procedur e, McCarley’s MAP was in the 50 mmH g range for at least 40 minutes (at one point dropping slightly below that range ). The brain is capable of autoregulation , or maintaining even cerebral blood flow, for a certain range of blood pressure

. The parties’ exp erts agreed the upper limit was 150 mmHg, but disagreed as to whether the lower limit
was 50 or 70 mmHg, as we discuss post . The experts referenced medical texts, which we briefly summarize here. Miller’s Anesthesi a contains a chapter by P iyush Patel and John C . Drummond that addresses autoregulation, stating in part :

“ In normal human sub jects , the best available data

— and th ey ar e limited

— are consistent with the limits of autoregula tion occurring at MAP values of approximately 70 and 150 mm Hg

. . . . The lower limit of autoregulation (L L A) has been widely quoted as an MAP of 50 mmHg. Although this number may be correct for some animal species, the data available arg ue that the LLA is considerably higher in humans

. . . .”
Cottrell and Patel’s Neuroanesthesia, by James E. Cottrell and Piyush Patel , also addresses autoregulation

. It states in part :

“Traditionally, many textbooks report that CBF [cerebral blood flow] is maintained relatively constant within the range of [MAP ] from approximately 50 to 150 mmHg

. . . . However, several investigators have noted that most available evidence suggests that

. . . the lower limit of4

autoregulation in humans is substantially higher on average than 50 mmHg (at least 70 mmHg)

. . . . As a consequence . . . , caution is advised when using these traditional values

. . . .”

Both text books cite a 1997 letter from Drummond to the editor of Anesthesiology ( J ournal of the American Society of Anesthesiologists), titled, “The Lower Limit of Autoregulation: Time to Revise Our Thinking?” There,
he stated the “popular conception regarding the normal lower limit” of 50 mmHg “ may be substantially in error,” noting i t was likely based on data originating in the 1950’s. He stated more recent data supported a limit of 70 mmHg, and “it may be appropriate for our communit y to adjust its thinking

. . . .” McCarley’s family reported behavioral ch anges after she awoke from the procedure , including acting silly and laughing uncontrollably

. At the same time, she became much better at art. McCarley returned to Rady a few days later for an evaluation, but the cause of her altered behavior was
unclear

. She and her family wou ld later report many other issues , including
diminished speech processing, concentration and focus problems, short

- term memory loss, severe fatigue, headaches, insomnia, and an increased heart
rate and heat intolerance (which would lead to a diagnosis of dysautonomia, a nervous system disorder)

. She started seeing a neurologist, Dr. Michael
Lobatz

. He diagnose d her with cognitive dysfunction , and she attended a brain injury rehabilitation progr am that he directed

. He later determined her symptoms were caused by an anoxic brain injury dur ing the endoscopy. Some of the symptoms improved or resolved and certain therapies helped, but she eventually plateaued.5

McCarley had been conditionally accepted to California State University San Marcos , but she did not pursue this plan

. A fter graduating high school with help from her teachers, she took one or two a rt classes a
semester at Palomar College. Her family drove her to class and helped with
her daily needs

. II. Litigation In June 2014, McCarley filed a complaint for medical malpractice against Dr. Canada, ASMG , Dr. Tipnis, and Rady

. In March 2015, McCarley made a section 998 offer to Dr. Canada , to which he did not respond

. We discuss the section 998 offer in more detail post

. Dr. Tipnis and Rady later moved for summary judgment, which the trial court granted. The case proceeded to a jury t rial in January 2018. During voir dire, defense counsel asked whether anyone had familiarity with PCOS. In McCarley’s opening statement, her counsel told the jury PCOS was a term that “may come up , ” and explained it was a “hormonal imbalance syndrome

. . . .” Defense counsel addressed PCOS in his opening statement too, stating McCarley was diagnosed with the condition before the procedure
and its significance was lost on her treating physicians. He was “confident” Dr. Sherry Franklin, an endocrinologist who treated McCarley , would “allow that had she thought about [PCOS]

. . . , she would have acknowledged . . . it was associated prominently w ith fatigue.” He further stated depression and other issues were connected to PCOS, and “[t]his i s reinforced , you’ll learn, in medical literature . . . and from the experts who deal with PCOS,” indicating they were endocrinologists like Dr. Franklin. He later said psychiatrist
Dr. Jeffrey Max would tell the jury McCarley has depression and it “may b e attributable ” to P COS as “ o ne of the underlying components . . . . ”6

The jury heard extensive witness testimony, which we now summarize

. A. Treating p hysicians Dr. Canada testified his understanding was that the MAP range for
cerebral autoregul ation was 50 to 150 mmHg

. He stated a lower limit of 65
or 70 mmHg was not consistent with his education and training , but acknowledged there was “some debate ” as to the limit. When asked about the Patel and Drummond chapter in the Miller textbo ok , he stated Drummon d “raise[d] a question” of whether the limit should be higher than 50 mmHg ; thought it was “one opinion”; and disagreed it “al tered the standard of care .”
He noted both that textbook and the Cottrell textb ook cited Drummond’s
1997 let ter , which opined the standard should be changed, and suggested Cottrell was “ not totally sold

. . . that 70 [mmHg] is the lower level

. . . .” Dr. Canada further testified none of McCarley’s MAP or blood pressure
values c aused him alarm, and nothing in his training or experience led him to
see a need to take action.
Dr. Lobatz , McCarley’s neurologist, opined she suffered a brain injury
due to h er blood pressure being too low , for too long, while under anesthesia for the endoscopy. He ackn owledged he could be wrong, but could n ot find another explanation. He also testified she was impaired in executive functioning, which impa cted higher mental function ; had growth hormone deficiency (which eventually resolved) ; and was n o longer safe to drive. Addressing future care, Dr. Lobatz stated that for “ mobility, her movements, her ability to bathe, dress, and groom, feed herself, things of that nature, all those basic activities of daily living are independent. Cognitively,

no t so, about 50/50.” He later reiterated this testimony , but deferred to other experts on the need for full

- time care:

“So from a neurological perspective that is she can walk, she can talk, she can dress, bathe, and groom herself, I7

think from that part icular perspective she does not really need attendant care. Perhaps a supportive living environment because of the fatigue in particular would be good, but not necessarily 24/7 care. As far as her cognitive difficulties and all of the problems related to that, I do understand the idea that you would need 24/7 care under those conditions. And in that case, though, I defer to Dr. Colaru sso and Dr. Markel.”
McCarley’s counsel asked Dr. Lobatz if he had follow ed patients with PCOS. H e said he did so a “number of time s , ” explain ing n eurologists are

“ pretty well versed in [PCOS] ” because some of the ir medicines , including one
called Depakote, are “thought to cause polycystic ovaries.” Her c ounsel then asked if he had an “opinion with reasonable medica l probability as to whether [PCOS] has played any role ” in McCarley ’s symptoms

. The trial court overruled a foundation objection by defendants, and Dr. Lobatz responded, “I
don't think it ’ s involved at all. I think it ’ s ridiculous, frankly.” He acknowle dged fatigue, heat intolerance, and insomnia could be associated with PCOS, but he had never seen an association wit h cognitive issues or dysautonomia

. When asked if he had reviewed the litera t ure on PCOS, in
connection with the questions about cognitive issues and dysautonomia , he
stated he had not. Dr. Franklin testified she saw McCarley for the growth hormone issue. She gave her growth hormone to help her feel better, but had never seen pituitary insufficiency from an anoxic brain injury and was un sure if McCarley needed it

. The trial court conducted a section 402 hearing to assess
her testimony on PCOS and growth hormone. 2 Dr. Franklin said she would

2 Evidence Code section 402 provides a pr ocedure for the trial court to determine the admissibility of evidence outside the jury’s presence.8

have to search the literature , but was not aware of any direct link between
them . The court ruled she could not say anything about PCOS, beyond what McCarle y may have reported to her. Other doctors who treated McCarley also testified, and were also asked about PCOS. N e urologist Mic helle Sahagian saw her during the evaluation at Rady and shortly thereafter

. When d efense counsel asked if she considered whether PCOS could explain the fatigue, she stated she had not done so and did not know if fatigue was associated with PCOS. Psychia trist Ellen Heyn e man also saw McCarley at Rady. McCarley’s counsel asked if PCOS was something she considered, and she said it “ [ did not ] appear to be

. . . .” McCarley’s cardiologist, Todd Hitchcock, told defense counsel he was “not very familiar” with PCOS and was unable to say if it w as associated with dysautonomia

. B. McCarley’s expert witnesses Anesthesiologist William Wilson testified the lower limit for autoregulation was “about 70 ” mmHg. He cited Miller, stating it was the

“ most authoritative and widely read ” anesthesiology textbook and it said this
was the “accepted lower level

. . . . ” He acknowledged there were texts indicating a different flo or was acceptable, but testified that by March 2013 , “it was very established” the low er limit was 70 mmHg , not 50 mmHg

. He further testified that if MAP drops below 70 mmHg , the standard of care requires taking steps to raise blood pressure above 65 mmHg, such as by
decreas ing inhaled anesthesia or administer ing a vasoconstricting agent

. He opined Dr. Canada fell below the standard of care , by assuming autoregulation set in at 50 mmHg and not taking steps to raise McCarley’s blood pressure

. In addition, Dr. Wilson testified that because McCarley’s
MAP was allow ed to remain significantly below 70 mmHg for over 409

minut es, she most likely suffered a “ hypo perfusion ischemic brain injury

. . . . ”
Dr. Daniel Silverman is a specialist in nuclear medicine, which encompasses radioactive imaging. A PET (or positron emi ssion tomography) scan is a special kind of imaging study

. He explained each part of the brain has a metabolism level, and when looking at a scan, he assess e s if activity in a part is within normal range. Dr. Silverman found two areas with hypermetabolis m in a June 2013 PET scan of McCarley : one involving interpretation of visual input, and the other involving speech. He opined there was significant injury to those areas, due to insufficient oxygen while
under anesthesia

. Neuropsychologist Nancy Markel gave McCarley a battery of tests that examine brain functioning, and found they showed “ really solid cognitive
abilities

. . . .” She addressed her low scores on certain easy tests and better
scores on hard er ones , explainin g the inconsistency could be explained by the
PET scan ( stating , in part, that hypermetabolism made “ her able to do something which shouldn ’ t have been that easy

. ”) Dr. Markel opined McCarley had suffered a brain injury. She agreed she had “ excellent

cog nitive scores ,” but said the “ question

. . . becomes

. . . are you able to use [those cognitive skills] when and if you need them ” and she “is not.”
Dr. Markel further testified the brain injury “ impacted [McCarley’s] abilit y to function day

- to

- day ” and there was “no wa y that she should be left alone

. ”
She opined McCarley needed full

- time attendant care, due to “the combination of . . . what happens in an emergency and also she clearly has some days that ar e better than others.” She elab orated that on bad days, she could not function and was “basically on the couch, useless.”10

Defense counsel asked Dr . Marke l if she had heard of PCO S. She said her foundation was limited and she was mostly aware of associa ted physical
attributes , but had “read in the literature that there can be some mood disturbances, not always in every case.” Psychiatrist Calvin Colarusso testified he diagnosed McCarley with “major neuropsychological disorder with depression,” resulting from brain injury. He opined she would never function independently, and should not be alone for “any extended period,” agreeing the concern was if “an emergency arose.” He continued, stating “she leaves the stoves on and there are lapses in judgment that require the presence of another adult who can see that she gets through the day without serious difficulty.” H e acknowledged he was not “aware of any lapses. . . where she did something dang erous or inappropriate . . . .” Dr. Colarusso also noted her executive functioning was impaired and she “needs help in planning and being able to follow through with daily activities.” Dr. Colarusso criticized Dr. Max for saying her symptoms “ didn ’ t res ult from . . . brain damage,” “rais[ing] a question ” of PCOS, and saying it was

“ often accompanied by depression and other

. . . symptoms. ” He stated , “I’m not an expert on that syndrome; neither is he” and “there ’ s no evidence

. . . [ she ] had any depress ive or other kinds of symptoms whatsoever prior to the surgery.” He was aware symptoms occurred with PCOS, and “[d]epression in particular” was a feature.
C. D efense expert witnesses Pediatric anesthesiologist Gregory Hammer opined Dr. Canada did not deviate from the standard of care. He testified that “for a period of minutes or tens of minutes, having [a MAP] of 45 or 50 is undoubtedly safe in a young,11

healthy teenager,” but agreed there was a debate about the limit of

auto regulation.
Dr. Harry Chugani testified for defendants on PET scans. He found McCarley’s PET scan normal , explaining hypermetabolism from brain injury “lasts no more than a few days” and he had never seen it one or two months
down the road. His opinion was that she did not suffer a brain injury. In addressing his reasons for this opinion, he noted she had PCOS and it “can be associated . . . with a neuropsychiatric symptom, ” but acknowledged he was not a PCOS expert and could not testify it caused her symptoms. H e did “entertain[] [ the ] possib i lity ” the symptoms related to PCOS, stating it “would be wrong to put

. . . everything that ’ s wrong with her, including anything that ’ s preexisting, and say this is all related to anesthesia.” Neuropsychologist Dean Delis administered similar tests as
Dr. Markel, and opined McCarley “does not have cognitive deficits or brain
dam age.” He testified her inconsistent test scores were evidence of

“ depression, ” not brain damage , explaining you “can’t accidentally get a high score.” Dr. Delis also testified McCarley had “somatic symptom disorder ” (formerly somatoform disorder), which can involve abnormal t houghts in response to symptoms. He explained she was reporting symptoms “completely inconsisten t with her great cognitive test scores,” and he thought she was “convinced . . . she is dysfunctional from a brain damage perspective.” He “highly disagree[d]” she needed full

- time attendant care, citing her “very strong” cognitive skills. Dr. Max, defen dants’ expert psychiatrist, testified McCarley has a “major depressive disorder . . . . ” He stated her “sleep problems, appetite problems, fatigue or energy problems, poor concentration or slower thinking, and . . . some weight loss” were symptoms of depression. He thought that12

after the endoscopy , she experienced “hypoman i c symptoms,” which is “the other pole of depression.” He testified that with “treatment of her depression,

. . . and shifting away from a permanent brain injury model ,” she could gain function and be independent. McCarley successfully moved to preclude him from testifying on PCOS, which we address post

. D

. Testimony by McCarley , her family, and others McCarley testified she felt strange when she woke from the endoscopy, and described her symptoms and limitations, including being unable to play sports, ride horses, or attend church mission trips

. Lori McCarley, her mother, testified family members spent about two hours a day assisting her with tasks like laundry, cleanin g her room, and preparing meals

. She also drives her to and from her art cla sses, and
reminds her to drink water and take medicine. S he said McCarley had been
hom e alone only a handful of times. She also had concern about McCarley using the stove safely, as she “came into the kitchen one time and the stove
was still on . . . . ” Michael McCarley, her father, testified they no longer ha d long talks on topics like science, politics, and theology , and she spent most days inside from fatigue or to avoid heat. One of her sister s , Kali Beh neman , testified McCarley had trouble making change when assisting her at the farmer’s
market and could become so exhausted she would not eat or drink (which s he saw “hundreds of times”). McCarley’s high school English teacher, Emily Wilson, testified she had been one of the highest achieving students in her class, but after the procedure, there were differ ences in her work quality and she gave her
accommodations. Pastor Chico Goff testified McCarley had attended church13

youth services and volunteer ed , but after March 2013, did not participate as fully

. E. V

erdict and judgment At the conclusion of the evidence, the trial court gave the jury
instr uctions, including CACI No. 219, which states in part, “ You do not have to accept an expert ’ s opinion. . . . You may believe all, part, or none of an expert ’ s testimony.” The court also gave CACI No. 506 : “An anesthesiologist is not necessarily negligent just because he chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice .” During closing arguments, defense coun sel pointed out CACI No. 506 to the jury

. McCarley’s counsel argued in part that defense counsel promised

“ somebody was go ing to tie all of this to PCOS” and he “had no expert who
came in to talk about that ” The jury deliberated for three days. They req uested, among other things, the testimony by the standard of care experts and clarification on whether a juror’s vote defaulted to defendant if they were unsure (and were
told “[e]ach juror should decide the case based on his/her review of the
evidenc e.”) The jury found Dr. Canada was negligent and his negligence was a substantial factor in causing injury to McCarley , in eac h case by a 9

- 3 vote. The y awarded $83,395 for past m edical care, $5,582,973 for future care, $2,500,000 for lost earning s , and $5,000,000 for noneconomic losses. The parties agree the future care award reflected approximately 10

- 14 hours per day of attendant care , along with medical care

. T he trial court reduced noneconomic damages to $250,000 under Civil Code section 3333.2 , ov er McCarley’s objection

. The court entered judgment in the amount of $8,416,368 , and added $2,552,579.05 in prejudgment14

interest against Dr. Canada based on the section 998 offer. After moving unsuccessfully for a new trial, defendants timely appealed

. DISCUSSION
I. Standard of Care Defendants contend the jury ’s negligence finding was in error , because Dr. Canada was within the standard of care as a matter of law. We disagree , and conclude there is substantial evidence to support the finding

. A. Applicable law In order to prove a claim of medical malpractice, the plaintiff must establish the defendant breached the standard of care, which “ requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession
under similar circumstances. ” ( Alef v. Alta Bates Hospital ( 1992) 5 Cal.App.4th 208, 215 ( Alef ) .) “ The standard of care agains t which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particul ar circumstances is within the common knowledge of laymen. ” ( Ibid .) We review the sufficiency of the evidence supporting the jury’s verdict for substantial evi dence. ( Wilson v. County of Orange (2 009) 169 Cal.App.4th 1185, 1188; see Ermoian v. Desert Hos pital (2007) 152 Cal.App.4th 475, 501 [review of a judgment following a jury verdict “begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the [jury’s] factual determinations”]; People ex rel. Brown v. Tri

- Union Seafoods LLC (2009) 171 Cal.App.4th 1549, 1567 [ we “ view the evidence in the light most15

favorable to the prevailing party, drawing all reasonable inferences and
resolvi ng all conflicts in its favor ” ].)
B. Analysis Based on our review of the entire record, w e conclude substantial evidence supports the jury’s finding that Dr. Canada was negligent. There is no dispute McCarley’s blood pressure, as measured in MAP, was in the
50 m m Hg range while she was under anesthesia for her endoscopy, and
Dr. Canada did not try to raise it. The contested issue was whether this constituted a breach of the standard of care . Dr. Wilson, McCarley’s standard of care expert, testified it did. Specifically, he exp lained the lowe r limit for autoregulation was 70 mmH g , citing the Miller textbook , and that if it drops, the standard of care requires taking action to raise it above 65 mmHg

. He opined Dr. Canada fell below the standard of care by assuming 50 mmH g was

su fficient and not taking such steps

. This expert testimony provides
substantial evidence for the jury’s finding of negligence . (See Alef , supra , 5 Cal.App.4th at p. 215 .) Defendants contend they prevail on negligence as a matter of law, because “uncontradicted evidence” establishes that using a lower limit of
50 mm H g is “widely accepted” and negligence cannot be based on using one of multiple accepted methods. But their evidence for a 50 mmHg limit, including from Dr. Canada and Dr. Hammer, was both contradicted and impliedly rejected by the jury , rendering their arguments about alternative methods inapposite

. Dr. Wilson testif ied it was “very established” by March 2013 that 70 mmHg was the lower limit , expressly disa greeing with a 50 mmHg limit and effectively denying there was any present debate

. The jury

was entitled to accept this testimony and reject the defense witnesses’ view that 50 mmHg was an acceptable option , and its negligence finding makes16

clear it did s o

. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633 [ jury “ must give to each [expert] opinion the weight which it finds that opinion deserves ”] ; People v. Sanchez (2016) 63 Cal.4th 665, 675 [ jury is “ not required to accept an expert ’ s opinion ”] ; CACI No. 219 [instructing jurors they do not have to accept expert testimony] .) In turn, as explained ante , Dr. Wilson’s testimony provides substantial evidence for that finding. 3
II. Exclusion of Testimony by Dr. Max on PCOS Defendants next argue the trial court erred by precluding Dr. Max from testifying on PCOS. They do not establish reversible error. 4
A. Applicable law An expert witness must have “ special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject t o which his testimony relates.” (Evid. Code , § 720, subd. (a).) “ ‘ [T]he qualifications of an expert must be related to the particular subject upon
which he is giving expert testimony.’ ” ( Howard Entertainment, Inc. v.
Kudro w (2012) 208 Cal.App.4th 1102, 1115 ( Howard ) .) The testimony must also be “sufficiently beyond common experience” to “assist the trier of fact” and based on “matter . . . of a type” reasonably relied upon by one opining on

3 Given our conclusion , we need not reach the parties’ remaining arguments here , including defendants’ reliance on case s involving alternative methods and McCarley’s contentions regarding cerebral perfusion pressure.

4 McCarley contends defendants forfeited this issue because their counsel told the trial court they did not intend for Dr. Max “ to offer [a] medical causation opinion” on PCOS. Defendants explain counsel misremembered the deposition, and the court reread the testimony before ruling. W e do not view this as an unambiguous, binding concession . ( See Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2 007) 152 Cal.App.4th 720, 752.)17

the subject at issue. (Evi d. Co de , § 801, subd. (a)

- (b).) “The essential questions which must be favorably answered to qualify a witness as an expert

are two: Does the witness have the background to absorb and evaluate information on the subject? Does he have access to reliable source s of information about the subject?” ( Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 658 ( Los Altos ).) We review a ruling to limit or exclude expert testimony for abuse of discretion. ( Sargon Enterprises v. Univ

. of Southern California (2012) 55 Cal.4th 747, 773 [“A ruling that constitutes an abuse of discretion has been described as one that is ‘so irrational or arbitrary that no reasonab le person could agree with it’ ” ].) An “ ‘erroneous evidentiary ruling requ ires reversal only if “there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error.” ’ ” ( Serri v. Santa Clara Univ

. (2014) 226 Cal.App.4th 830, 857 ( Serri ); Cassim
v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 ( Cassim ) [probability “ ‘in this context does not mean more likely than not, but merely a reasonable chance,
more tha n an abstract possibility’ ”] .)
B. Additional facts Dr. Max testified at his deposition that he planned to opine McCarley’s

“ depression and mental problems

. . . are more than likely ” related to PCOS and “much less likely to be related to

. . . anoxia from anesthetic, which is so rare that none of the experts in this case . . . has ever seen a case.” He fe lt her doctors only considered “ brain damage from anesthesia” and this was

“ overly narrow, ” but agree d anoxic brain injury could cause major depressive
disorder. He testified t he medical literature on PCOS reflected “hundreds of articles” showing increased depression and bipolar disorder, and “even a link” with dy sautonomia. He also testified that, if you consider she has PCOS,18

“many of her symptoms are understandable, and you don ’ t have to invoke somatoform disorder.” Dr. Max acknowledged he was not an expert in PCOS , and stated he reviewed the literature in forming his opinions

. When asked if had treated patients for issues related to PCOS, he replied his “ connection

. . . comes from psychiatric literature where treatment of [b]ipolar disorder patients, especially adolescents, becomes tricky if one decides to use Valproic acid or Depakote because

. . . that medicine can increase their rate and risk of [PCOS].” He had seen patients “in that regard, ” and had depression patients with a history of PCOS, but did not recall patients coming to him “for [PCOS], saying . . . they’re depressed because of that.” Dr. Max also acknowledged McCarley was diagnosed with PCOS before the procedure , previously functioned at a higher level, and had not fo rmally co mplained of psychiatr ic issues in the past , but explained that from his “ readings of [the PCOS] literature . . . symptoms can be silent” and “onset . . . c an be years later.” McCarley’s counsel filed a motion in limine to preclude Dr. Max from providing causation testimony regarding PCOS, whi ch defendants opposed.
The trial court elected not to rule at the outset of trial, stating if it “had to make a ruling now . . . it would be very easy , ” but the “best thing to do” was “see how the evidence flows .” T he court did note D r. Max’s testimony that he was not an expert, and said, “I will say for the defense, that is a great concern for the Court.” When the trial court revisited Dr. Max’s testim ony, d efense counsel argued in part that Dr. Lobatz was permitted to testify about PCOS after offering the “same testimony” on Depakote as Dr. Max . The court said it was “getting very concerned when I hear he ’ s not an expert and then he ’ s going to19

say, we ll, PCOS has fatigue, et cetera

. . . and therefore it goes over to PCOS , ”
but acknowledged it had to consider Dr. Lobatz discussed it

. The next day,
the court stated it reread the deposition transcript twice and ruled Dr. Max could not testify “ PCOS was the cause of the condition that Ms. McCarley has

now. ” It explained that “ without

. . . more foundation than I ’ ve read some literature, more foundation about PCOS and how it would be connect ed to this brain injury, I ’ m going to not allow it. ” Defense counsel argued their position was not that PCOS was “definitively” the explanation, but that there was no brain injury , and they were being “hand

- tied” from establishing other explanations

. The court replied that Dr. Max’s deposition reflected “he’s not even sure of it” and “wouldn’t even make that diagnosis,” concluding “ I just
don ’ t think there ’ s enough here for that type of testimony.” C. Analysis
The trial court could reasonably conclude Dr. Max lacked the qualifications to offer causation testimony as to PCOS, r egardless of the
medical literature he consulted. The record reflects he lacked the background

to evaluate that literature or otherwise offer expert testimony on PCOS. ( Los Altos , supra , 139 Cal.App.4th at p. 658 ; Howard , supra , 208 Cal.App.4th at

p. 1115 .) Dr. Max is a psychiatrist

. H e admitted he was not an expert on PCOS and had not treated patients for issues caused by it; rather, his familiarity was based on prescription risks from the psychiatric literature
and patient his tories

. The court was also cautious in exercising its discretion, including deferring its rul ing until more evidence came in and read ing the deposition twice . We cannot say the court’s decision to exclude Dr. Max’s testimony on PCOS was either irrational or arbitrary. ( Sargon , supra , 55 Cal.4th at p. 773.)20

Defendants do not persuade us to reach a different conclusion

. First, they contend the trial court “erred when it ruled that Dr. Max could not base his opinion about PCOS on med ical and scientific literature

. ” The court made
no such rulin g , and the re is no dispute qualified experts may rely on literature . (See Brown v. Colm (1974) 11 Cal.3d 639, 644 ( Brown ) [ a physician “may rely upon medical texts as the basis for his testimony”] .)
Ra ther, having previously found Dr. Max was not an expert, the court explained his proposed testimony would require “ more foundation than I’ve read some literature, more foundation about PCOS and how it would b e connected to this brain injury.” T he issue was not that Dr. Max relied on articles, but that he solely relied on articles in the absence of any expertise or experience with PCOS

. (See Los Altos , supra , 139 Cal.App.4th at p. 658 [expert must have both reliable sources and the “ background to a bsorb and evaluate information ”].) The cases cited by defendants here do not support reversal . They involve experts with sufficiently relevant experience or testimony that was admitted, not excluded , and are distinguishable. (See , e.g., Brown , supra , 11 Cal.3d at p. 647 [trial court erred by excluding testimony by surgeon who performed corrective surgery ten years after surgery at issue and who
reviewed literature as to earlier standard of care , on sole ground he was not yet in practice at the t ime ] ; People v. Catlin (2001) 26 Cal.4th 81, 132

- 133 [ no error in allowing seasoned pathologist who conducted autopsy and studied21

lit erature on poison at issue to opine it was the cause of death, where, among other things, he had “ sufficient specialized tr aining ”].) 5 Accordingly, we also reject defendants’ related argument that “[b]ecause Dr. Max had ‘disclosed sufficient knowledge,’ ” his testimony should have been admitted and subjected to cross

- examination. (Cf. Brown , supra , 11 Cal.3d at p. 64 6 [ex pert who meets “general testimonial qualification [ s ] ” can be subject to “penetrating . . . cross

- examination” ].) Sec ond, defendants contend the “ trial court was mistaken that Dr. Max did not make a diagnosis of de pression associated with PCOS,” stating it was somatoform disorder that he would not diagnose

. We disagree with their interpretation of the court’s comments

. When the court noted Dr. Max was

“ not even sure” and would not “ make a diagnosis, ” it did not me ntion depression and had already determined he could not testify on PCOS

. T he

court was responding to defense counsel’s argument that they were being prevented from establishing a cause besides brain injury, and its concern appeared to be that Dr. Max did not say PCOS caused her condition

— only
that it was more than likely related to it

. If anything, d oubts as to the

5 (See also , e.g., People v. Chavez (1985) 39 Cal.3d 823, 827

- 829 [not “entirely free from doubt,” but no abuse of discretion in allowing pathologist who conducted victim’s autopsy, reviewed numerous post

- mortem blood tes ts, and was familiar with literature to testify about defendant’s actions while inebriated]; Miller v. Silver (1986) 181 Cal.App.3d 652, 661 [ plastic surgery case; error to exclude psychiatrist’s testimony about antibiotics due to lack of expertise in plastic surgery, as testimony on “matters within the knowledge

. . . of every physician” can “aid the trier of fact”] ; People v. Phillips (1981) 122 Cal.App.3d 69, 78, 85

- 89 [no error in admitting expert testimony that mother accused of murdering child had Munchausen’s syndrome by proxy, even though expert relied on literature and had not treated such patients ; her challenge was not based on his qualifications, but

on her claim that the syndrome was not acc epted by the profession ].)22

certainty of his opinion would support exclusion and, regardless, this was not the court’s prima ry reason for its ruling. (See Jennings v. P alomar Pomerado Health Systems, Inc. (20 03) 114 Cal.App.4th 1108, 1117 [expert opinion based on conjecture has “no evidentiary value”] .)
Third , defendants contend the trial court improperly rejec t e d a foundation for Dr . Max’s testimony that it accepted for Dr. Lobatz , especially as only Dr. Max reviewed the PCOS literature

. This argument lacks force.
Even a ssuming their testimony had similarities (and we note it was not identical), t hey offered their testimony in different r oles. Dr. Max specifically sought to give expert testimony on PCOS, whereas Dr. Lobatz testified primarily as McCarley’s neurologis t

— and was one of many witnesses asked
about their consideration of PCOS , or lack thereof

. Further, the trial court
acknowle dged defendants’ concerns about Dr. Lobatz’s testimony, thus giving
them due consideration. We conclude t he court’s treatment of Dr. Max’s proposed expert testimony on PCOS was reasonable and within its discretion

. Even if the trial court erred, defendants do not establish there was a reasonable chance of a more favorable result. ( Serri , supra , 226 Cal.App.4th at p. 857; Cassim , supra , 33 Cal.4th at p. 800.) McCarley offered expert testimony that her condition was caused by a brain injury. Dr. Max would have testified McCarley’s depression and other symptoms were more than likely related to PCOS , and her doctors failed to consider it

. But the jury already heard most of this. Defendants ’ experts disagreed she had a brain injury ; multiple witnesses , including McCarley’s expert Dr. Colarusso, testified she had depression; and Dr. Max opined her problems were depression symptoms

. W itnesses also noted PCOS had symptoms like fatigue and mood disturbances , and Dr. Chugani entertained it as a possibl e

cause

— all while her doctors acknowledged they did not consider it

. And23

Dr. Colarusso actually related Dr. Max’s views that her symptoms were not caused by brain damage and PCOS was often related to depression and other symptoms, in criticizing them. Finally, defendants concede the symptoms appearing “ after her procedure, some three years after her PCOS diagnosis ” impact ed its likelihood as the explanation. On this record, we cannot con clude defendants could have achieved a more favorable result, had Dr. Max been permitted to testify on PCOS. Defendants’ arguments are again unpersuasive

. First , they contend this was a close case on “both negligence and causation,” citing the 9

- 3 votes, the three days of deliberations, and the jury’s notes

. Dr. Max’s proposed PCOS testimon y only pertained to causation and, whatever the vote, Defendants do not establish it would have made a difference. Second , defendants argue the y were “prevent ed from making sense” of
the references to PCOS with out Dr. Max’s proposed causation testimony. They further contend the jury could have concluded defendants were “ blowing smoke,” noting McCarley’s c losing argument point that they failed to produce a PCOS e xpert. We disagree the references were confusing, or that Dr. Max’s testimony would have assuaged jury concerns in this regard . Defense counsel raised PCOS in voir dire, and both parties addressed it in opening statements; this provided context for the r eferences, regardless of whether defendants presented all the evidence they wanted

. Defense counsel did promise a PCOS expert in his opening statement , but focused on Dr.
Franklin , the endocrinologist

— mentioning only later that Dr. Max would discuss depre ssion and its link to PCOS

. Even if Dr. Max had testified on PCOS , the jury c ould still have wonder ed why Dr. Franklin did not

. Third , defendants cite Dr. Lobatz’s statement s on PCOS, including that he could not find an explanation for her condition besides brain injury , and24

argu e , “ Dr. Max would have provided the alternative explanation . . . .” But other doctors also testified she experienced brain injury, and the jury heard about depre ssion as an alternative

— including from Dr. Ma x

. Fina l ly, defendants acknowledge the jury could have concluded McCarley had depression, but contend they were “prevented from learning ”
Dr. Max did not agree with Dr. Colarusso that brain injury was the cause.
Not so. Although Dr. Max could not test ify about PCOS , his testimony still reflected he viewed brain injury as the wrong explanation. Further , as noted above, Dr. Colarusso himself told the jury Dr. Max rejected brain damage as the cause of her symptoms.
III. Future Attendant Care Defendants assert the damages award for future attendant care must be reversed because it was based on speculation, not evidence. We disagree. A. Applicable law A plaintiff may recover damages for detriment “reasonably certain” to occur in the future. ( G arcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92,
97 ; see J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323, 343 ( Carlsbad Unified ) [future medical expenses can be based on lay or expert testimony ].) “ ‘ “[D]amages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery.” ’ ” ( Licudine v. Cedars

- Sinai Medical Center (2016) 3 Cal.App.5th 881, 896.) That said, “ ‘ “ [d] amages . . . are difficult to me asure in personal injury cases.” ’ ” ( Carlsbad Unified , at p. 343.) “ The task of measuring such damages falls to the jury . . . and its resolution of disputed issues of probability and extent of harm will be affirmed if supported by substantial evidence.” ( Ibid .)25

B. Analysis Resolving all evidentiary conflicts in favor of the judgment, as we must,

t he record contains substantial evidence to support damages for future
attendant care . Dr. Markel testified McCarley should not be left alone, given her inability to handle an emerg ency and the unpredictability of days when she is “basically . . . useless.” She had also noted McCarley had impaired functioning and could not use her cognitive ski lls when needed.
Dr. Colarusso likewise opined she would never be independent. He expres sed similar concern about emergencies, and also cited her limited planning ability
and “lapses in judgment” that required another adult’s presence, like “leav[ing] the stoves on.” In addition, McCarley’s family testified about her extreme fatigue, forgett ing to drink water and take medicine, and difficulty processing basic transactions.
This testimony presents a picture of a young woman who may have some days that are better than others , but would not be able to consistently function as an independent adult

. The jury was entitled to rely upon it to award future attendant care damages. ( Cf. Carlsbad Unified , supra , 232 Cal.App.4th at p. 343 [jury could award future medical costs “based on the
evid ence, both lay and expert, of future harm to [plaintiffs] as they progressed through their lives”].) We are not persuaded by defendants’ argument that the record “boils down to nothing more than, if an emergency occurs, and if McCarley is having a bad day, she might not be able to look out for herself.” They suggest
there would only be a problem in a “serious

- enough emergency” like a “house fire.” This argument overlooks the other evidence supporting attendant care and discounts the emergency issue. The jury could reasonably conclude that, in addition to McCarley’s other limitations, being unable to respond26

consistently to urgent situations justifies attendant care

— even if they never rise to the level of a fire. She only had to establish harm “ ‘with as much certainty as . . . the circumstances permit

. ’ ” ( Clemente v. State of California (1985) 40 Cal.3d 202, 219; see, e.g., Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 602 [where doctor opined plaintiff would likely need spinal

surgery because condition increased likelihood of arthritic changes , uncertainty as to whether changes would develop did not bar finding that need for surgery was reasonably certain ] .)
D efendants also direct us to evidence that could counsel against future
attendant care , including Dr. Colarusso’s acknowledgment that he was unaware of lapses in judgment by McCarley where she did something dangerous or inappropriate , her mother’s identification of a single time she left the stove on, and Dr. Lobatz’s testimony that she coul d handle daily
tasks. They further note Dr. Delis highly disagreed she neede d attendant care, and Dr. Max felt she could become independent . Whether or not the jury could have relied on this evidence to reject damages for attendant care, it
does not supp ort reversal here

. (See People v. White (2014) 230 C al.App.4th 305, 319, fn. 14 [w itness testimony is “ordinarily sufficient to uphold a judgment ‘even if it is contradicted by other evidence, inconsisten t or false as to other portions ’ ” ].) Finally, the cases cited by defendants involve damages that did rest on speculation, or are otherwise distinguishable . (See, e.g., Scognamillo v.
Herrick (2003) 106 Cal.App.4th 1139, 1145 , 1151 [reversing award encompassing second surgery, where doctor testified procedure was to do first surgery, assess improvement, and “perhaps, if everything goes well,” do second one; whether “second surgery will ever be performed could hardly
have been couc he d in more speculative terms”] , disapproved on other grounds27

by Lewis v. Ukran (2019) 36 Cal.App.5th 886, 894

- 895 ; Silvester v. Scanlan (1933) 136 Cal.App. 107, 110

- 111 [reversing judgment for plaintiff who alleged “traumatic neurosis,” where no witness was “certain [she] would suffer in the future”].) 6
W e recognize McCarley’s need for future attendant care was strongly disputed by the parties

. But the issue was for the jury, there was sufficient evidence to support their award, and we therefore affirm it.
IV. Prejudgment Interest Finally, defendants contend prejudgment interest should be stricken
because McCarley’s section 998 offer would not have resulted in final disposition of the case as to Dr. Canada and was thus invalid

. McCarley

argues defendants forfeited this issue by relying on a different theory in the trial court, and the offer was valid regardless . We agree defendants forfeited
the issue

. A. Applicable law

“ ‘ A prevailing party who has made a valid pretrial offer pursuant to Code of Civil Procedure section 998 is eligible for specified costs, so long as the offer was reasonable and made in good faith. ’ ” ( Najera v. Huerta (2011) 191 Cal.App.4th 872, 877 .) These amounts include prejudgment interest in a personal injury case “ when a defendant refuses a plaintiff ’ s [section 998 ] settlement offer and the plaintiff later recovers a more favorable judgment .” ( Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418 , 1435, citing Civ. Code , § 3291 .) The purpose of § 998 is to “ encourage the settlement of

6 Defendants also contend Melone v. Sierra Railway Co. (1907) 151 Cal. 113 , 116

- 117 holds it is error to instruct the jury a plaintiff can rec over for harm he “may suffer.” T hey do not allege instructional e rror , and regardless, the instruction here required “reasonable certainty

. ”28

litigation without trial, by punishing the party who fails to accept a reasonable settlement offer from its opponent .” ( Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 268 ( Staffpro ) .)

“ Where the offeror obtains a judgment more favorable than its offer,

. . . the burden lies with the offeree to show that the offer was not

. . . reasonable. [Citation]. . . . [T] he offering party bears the burden of demonstrating that the offer was otherwise valid. ” ( Staffpro , supra , 119 Cal.App.4th at p. 268 .) Whether a section 998 offer is “sufficiently certain to be enforce able involves a question of law . . . .” ( Ibid

. ; see Berg v. Darden (2004) 120 Cal.App.4th 721,
727 , 731

- 732 [offer need not contain “magic lan guage,” but must be clear that acceptance “will result in the entry of judgment ” or the equivalent].)

“ Ordinarily, a party may not change the theory of his case for the first time on appeal. ” ( Frink v. Prod (1982) 31 Cal.3d 166, 170 ( Frink ); Cox v. Griff in (2019) 34 Cal.App.5th 440, 453 [accord] ; see Ward v. Taggert (1959) 51 Cal.2d 736, 742 ( Ward ) [ rationale is that one should not have to defend new theory involving factual situation not addressed at trial ].) While an appellate court may exercise its discretion to consider questions of law raised for the first time on appeal, it is not required to do so. ( Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767 ( Greenwich )

. )
B. Additional Facts McCarley mad e her section 998 offer to Dr. Canada in March 2015 , nine months after she filed her lawsuit

. The offer stated:

“Pursuant to California Code of Civil Procedure section 998 and Civil Code section 3291, [McCarley] hereby offers to compromise the above

- entit led action in the amount of One Million Dollars ($1,000,000) for your several liability only and n ot for a discharge of any other Defendant’s liability. [¶] Acceptance of this offer constitutes agreement that the sum paid shall afford only a deduction fr om any other Defendant’s liability and not a discharge of such Defendant.29

As part of said compromise and settlement, each side is to bear its own costs. [¶] If this offer is not accepted prior to trial or within thirty (30) days after it is made, whiche ver occurs first, it shall be deemed withdrawn.”

As noted ante , defendants moved for a new trial following judgment

. T hey argued in part that prejudgment interest should be stricken because the section 998 offer was “not presented in good faith and had no reasonable expectation of acceptance ,” based on the state of the evidence at the time. I n her opposition, McCarley described significant discovery that had taken place by that point, and noted brain injury had not been ruled out. Defendants also filed a motion to tax expert witness costs based on the section 998 offer . There, they stated McCarley “made a section 998 offer to compromise, offering to dismiss Defendant, Edgar Canada, M.D. in exchange for t he payment of $1,000,000.00, ” and again argued the offer was not made in good faith or reasonable. McCarley opposed the motion, noting she gave defendants a chance “to settle the instant lawsuit as to [Dr. Canada] for his policy limit of $1,000,000” and “ simultaneously offered to dismi ss defendant [ASMG] for a waiver of costs, contingent on Dr. Ca nada ’ s acceptance of [her] statutory offer to compromise. ” She later reiterated she had “ offered to compromis e this case, in its entirety as to both Defendants

. . . .” C

. Analysis Defendants now contend the term “several liability” ordinarily means noneconomic damages, so McCarley’s section 998 offer left Dr. Canada liable for joint and several liability

— or was at least ambiguous

— so it would not
have resulted in final disposition of the case as to him and was thus invalid. McCarley argues defendants waived this argument, because they argued in the trial court only that the offer was unreasonable , and that it was clear she
intended to fully settle with Dr. Canada

. S he further contends that , had they30

raised this alleged ambiguity , she c ould have introduced a letter to defendants’ counsel that accompanied the section 998 offer and “ made clear
that she would dismiss [ASMG] for a waiver of costs ” if Dr. Ca nada accepted the offer. We conclude defendants have forfeited their section 998 argument , and
we decline to exercise our discretion to reach it

. ( Greenwich , supra , 190 Cal.App.4th at p. 767 .) The issue is not simply that defendants failed to raise the argument in the trial court , although that is grounds for forfeiture. ( See
Frink , supra , 31 Cal.3d at p. 170; Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102 , 113 ( Santantonio ) [ deeming waived and declining to co nsider plaintiff’s argument that defendant’s section 998 offer
was invalid because it purportedly required acceptance by all plaintiffs,
where plaintiff argued below only that there was no unity of interest among defendants and the offer was not reasonable ].) Rather, defendants actually took a contrary position to their stance here , by a cknowledg ing McCarley “ offer[ed ] to dismiss [ Dr. Canada ]” and arguing only that the offer was not in good faith or reasonable. Th eir approach left McCarley no reason to offer evidence, like a letter to defendants’ counsel, to show her section 998 offer was intended to result in
dismiss al of Dr. Canada , and further support s forf eiture

. ( See Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 9 3 [declining to review forfeited contention “[g]iven that the parties did not develop the factual record belo w to allow for a fair review”] ; cf. Steller v. Sears, Roebuck & Co. (2010) 189 Cal.App.4th 175, 183 [ trial court should have considered extrinsic evidence to assess ambiguity in section 998 offer] .) Defendants do not address the letter,
and the authorities they cite are distinguishable. (S ee Ward , supra , 51 Cal.2d at p. 742 [theory did not contemplate “ factual situation different from31

that established by the evidence in the trial court ” ]; Palmer v. Shawback (1993) 17 Cal.App.4th 296, 300 [argument did not involve question of fact,
and did r e ly on new cases ].) Under the circumstances, we will not exercise our discretion to reach defendants’ newly raised section 998 argument. The purpose of section 998 is to promote settlement. ( Staffpro , supra , 119 Cal.App.4th at p. 268.) “ If the statutory purpose behind section 998 is to be served in this case, we cannot permit [appellant] to avoid the consequences of his decision by claiming now that the offer ought to be construed as one which he c ould not have accepted anyway.” ( Santantonio , supra , 25 Cal.App. 4th at p. 114; cf. Prince v. Invensure Ins. Brokers, Inc. (2018) 23 Cal.App.5th 614, 623

- 624 [ reversing order taxing costs , because section 998 offer whose scope was clarified in
emails was not ambiguous; rejecting construction that would frustr ate statutory purpose and allow defendant that declined “ very reasonabl e settlement offer” to “assert a ‘Gotcha!’ defense ,” where it “knew exactly what [plaintiff] was offering”].)32 DISPOSITION The judgment is affirmed. Respondent shall receive her costs o n appeal

.

O ’ ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

DO , J.