Filed 4/20/21 McCarley v. Anesthesia Service Medical Group CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 defendants and 

appellants Anesthesia Service Medical Group, Inc. (ASMG) and Dr. Edgar 

Canada, among others, for medical negligence, alleging she suffered a brain 

injury when Dr. Canada failed to take steps to raise her blood pressure while 

under anesthesia for a procedure. She made a Code of Civil Procedure 

section 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. They contend Dr. Canada was within the standard 

of care as a matter of law; the trial court improperly excluded proposed

expert testimony 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 the expert 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 endoscopy, and Dr. Canada was the anesthesiologist. 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 measures the lowest point before the next beat. They 

can be combined into mean arterial blood pressure, or MAP, expressed in 

millimeters of mercury (mmHg). During and after the procedure, McCarley’s 

MAP was in the 50 mmHg 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’ experts 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 Anesthesia contains a 

chapter by Piyush Patel and John C. Drummond that addresses 

autoregulation, stating in part:

“In normal human subjects, the best available data—and 

they are limited—are consistent with the limits of 

autoregulation occurring at MAP values of approximately 

70 and 150 mm Hg . . . . The lower limit of autoregulation 

(LLA) has been widely quoted as an MAP of 50 mmHg. 

Although this number may be correct for some animal 

species, the data available argue 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 of 
4

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 textbooks cite a 1997 letter from Drummond to the editor of 

Anesthesiology (Journal 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 it 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 community to adjust its 

thinking . . . .” 

McCarley’s family reported behavioral changes 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 would 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 diagnosed her with cognitive dysfunction, and she attended a 

brain injury rehabilitation program that he directed. He later determined

her symptoms were caused by an anoxic brain injury during 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. After graduating 

high school with help from her teachers, she took one or two art 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 trial 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 with fatigue.” He further stated depression and 

other issues were connected to PCOS, and “[t]his is 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 be 

attributable” to PCOS as “one of the underlying components . . . .” 
6

The jury heard extensive witness testimony, which we now summarize. 

A. Treating physicians

Dr. Canada testified his understanding was that the MAP range for 

cerebral autoregulation 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 textbook, he stated Drummond

“raise[d] a question” of whether the limit should be higher than 50 mmHg; 

thought it was “one opinion”; and disagreed it “altered the standard of care.” 

He noted both that textbook and the Cottrell textbook cited Drummond’s 

1997 letter, 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 caused 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 her blood pressure being too low, for too long, while under anesthesia 

for the endoscopy. He acknowledged he could be wrong, but could not find 

another explanation. He also testified she was impaired in executive 

functioning, which impacted higher mental function; had growth hormone 

deficiency (which eventually resolved); and was no 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, 

not 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, I 
7

think from that particular 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. Colarusso and Dr. Markel.” 

McCarley’s counsel asked Dr. Lobatz if he had followed patients with 

PCOS. He said he did so a “number of times,” explaining neurologists are 

“pretty well versed in [PCOS]” because some of their medicines, including one 

called Depakote, are “thought to cause polycystic ovaries.” Her counsel then 

asked if he had an “opinion with reasonable medical 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

acknowledged fatigue, heat intolerance, and insomnia could be associated 

with PCOS, but he had never seen an association with cognitive issues or 

dysautonomia. When asked if he had reviewed the literature 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 unsure 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 procedure 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 

McCarley may have reported to her. 

Other doctors who treated McCarley also testified, and were also asked 

about PCOS. Neurologist Michelle Sahagian saw her during the evaluation 

at Rady and shortly thereafter. When defense 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. Psychiatrist 

Ellen Heyneman 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 was 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 floor was acceptable, but testified that by March 2013, 

“it was very established” the lower 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 

decreasing inhaled anesthesia or administering 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 allowed to remain significantly below 70 mmHg for over 40 
9

minutes, she most likely suffered a “hypoperfusion ischemic brain 

injury . . . .”

Dr. Daniel Silverman is a specialist in nuclear medicine, which 

encompasses radioactive imaging. A PET (or positron emission 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 assesses if activity in 

a part is within normal range. Dr. Silverman found two areas with 

hypermetabolism 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 harder ones, explaining 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 

cognitive 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] ability to 

function day-to-day” and there was “no way 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 are better than others.” She elaborated that on bad days, she 

could not function and was “basically on the couch, useless.” 
10

Defense counsel asked Dr. Markel if she had heard of PCOS. She said

her foundation was limited and she was mostly aware of associated 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.” He acknowledged he was 

not “aware of any lapses. . . where she did something dangerous 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 result 

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 depressive 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. Defense 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 

autoregulation. 

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. He did 

“entertain[] [the] possibility” 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 

damage.” 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 thoughts in 

response to symptoms. He explained she was reporting symptoms 

“completely inconsistent 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, defendants’ 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 that 
12

after the endoscopy, she experienced “hypomanic 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, cleaning her room, and 

preparing meals. She also drives her to and from her art classes, and 

reminds her to drink water and take medicine. She said McCarley had been 

home 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 had long talks on 

topics like science, politics, and theology, and she spent most days inside from 

fatigue or to avoid heat. One of her sisters, Kali Behneman, 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 she 

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 differences in her work quality and she gave her 

accommodations. Pastor Chico Goff testified McCarley had attended church 
13

youth services and volunteered, but after March 2013, did not participate as 

fully. 

E. Verdict and judgment

At the conclusion of the evidence, the trial court gave the jury 

instructions, 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 counsel pointed out CACI No. 506 to 

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

“somebody was going 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 requested, 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 

evidence.”) The jury found Dr. Canada was negligent and his negligence was

a substantial factor in causing injury to McCarley, in each case by a 9-3 vote. 

They awarded $83,395 for past medical care, $5,582,973 for future care, 

$2,500,000 for lost earnings, 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.

The trial court reduced noneconomic damages to $250,000 under Civil 

Code section 3333.2, over McCarley’s objection. The court entered judgment 

in the amount of $8,416,368, and added $2,552,579.05 in prejudgment 
14

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 against 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 

particular circumstances is within the common knowledge of laymen.” (Ibid.)

We review the sufficiency of the evidence supporting the jury’s verdict 

for substantial evidence. (Wilson v. County of Orange (2009) 169 Cal.App.4th 

1185, 1188; see Ermoian v. Desert Hospital (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 most 
15

favorable to the prevailing party, drawing all reasonable inferences and 

resolving all conflicts in its favor”].) 

B. Analysis

Based on our review of the entire record, we 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 mmHg 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 explained the lower limit for 

autoregulation was 70 mmHg, 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 mmHg was 

sufficient 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 mmHg 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 testified it was “very established” by March 

2013 that 70 mmHg was the lower limit, expressly disagreeing 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 makes 
16

clear it did so. (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 to 

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. 

Kudrow (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 cases 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. We do not view this as an unambiguous, binding concession. (See 

Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 

152 Cal.App.4th 720, 752.) 
17

the subject at issue. (Evid. Code, § 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 sources 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 reasonable person 

could agree with it’ ”].) An “ ‘erroneous evidentiary ruling requires 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 than 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 felt 

her doctors only considered “brain damage from anesthesia” and this was 

“overly narrow,” but agreed anoxic brain injury could cause major depressive 

disorder. He testified the medical literature on PCOS reflected “hundreds of 

articles” showing increased depression and bipolar disorder, and “even a link” 

with dysautonomia. 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 formally complained of 

psychiatric issues in the past, but explained that from his “readings of [the 

PCOS] literature . . . symptoms can be silent” and “onset . . . can be years 

later.” 

McCarley’s counsel filed a motion in limine to preclude Dr. Max from 

providing causation testimony regarding PCOS, which 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.” The court did note Dr. 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 testimony, defense 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 to 
19

say, well, 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 connected 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, regardless 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. He 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 histories. The court was also cautious in exercising its discretion, 

including deferring its ruling until more evidence came in and reading 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 medical and scientific literature.” The court made 

no such ruling, and there 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”].) 

Rather, 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 be 

connected to this brain injury.” The 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 absorb 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 time]; People v. Catlin (2001) 26 Cal.4th 81, 132-133 [no 

error in allowing seasoned pathologist who conducted autopsy and studied 
21

literature on poison at issue to opine it was the cause of death, where, among 

other things, he had “sufficient specialized training”].)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. 646 [expert who meets “general testimonial 

qualification[s]” can be subject to “penetrating . . . cross-examination”].)

Second, defendants contend the “trial court was mistaken that Dr. Max 

did not make a diagnosis of depression 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 mention 

depression and had already determined he could not testify on PCOS. The 

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, doubts 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 tests, 

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 accepted by the profession].)
22

certainty of his opinion would support exclusion and, regardless, this was not 

the court’s primary reason for its ruling. (See Jennings v. Palomar Pomerado 

Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [expert opinion based 

on conjecture has “no evidentiary value”].)

Third, defendants contend the trial court improperly rejected 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 assuming their testimony had similarities (and we note it was not 

identical), they offered their testimony in different roles. Dr. Max specifically 

sought to give expert testimony on PCOS, whereas Dr. Lobatz testified

primarily as McCarley’s neurologist—and was one of many witnesses asked 

about their consideration of PCOS, or lack thereof. Further, the trial court 

acknowledged defendants’ concerns about Dr. Lobatz’s testimony, thus giving 

them due consideration. We conclude the 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. Witnesses also noted PCOS had symptoms like

fatigue and mood disturbances, and Dr. Chugani entertained it as a possible 

cause—all while her doctors acknowledged they did not consider it. And 
23

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”

impacted its likelihood as the explanation.

On this record, we cannot conclude 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 testimony only pertained to causation and, whatever the vote, 

Defendants do not establish it would have made a difference.

Second, defendants argue they were “prevented from making sense” of 

the references to PCOS without Dr. Max’s proposed causation testimony. 

They further contend the jury could have concluded defendants were “blowing 

smoke,” noting McCarley’s closing argument point that they failed to produce 

a PCOS expert. 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 references, 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 depression and its link to PCOS. Even if Dr. Max had testified on 

PCOS, the jury could still have wondered why Dr. Franklin did not. 

Third, defendants cite Dr. Lobatz’s statements on PCOS, including that 

he could not find an explanation for her condition besides brain injury, and
24

argue, “Dr. Max would have provided the alternative explanation . . . .” But 

other doctors also testified she experienced brain injury, and the jury heard 

about depression as an alternative—including from Dr. Max. 

Finally, 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 testify 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. (Garcia 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 measure 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, 

the 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 emergency and the unpredictability of days when 

she is “basically . . . useless.” She had also noted McCarley had impaired 

functioning and could not use her cognitive skills when needed. 

Dr. Colarusso likewise opined she would never be independent. He expressed

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, forgetting 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 

evidence, 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 respond 
26

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].)

Defendants 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 could handle daily 

tasks. They further note Dr. Delis highly disagreed she needed 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 support reversal here. (See People v. White (2014) 230 Cal.App.4th 

305, 319, fn. 14 [witness testimony is “ordinarily sufficient to uphold a 

judgment ‘even if it is contradicted by other evidence, inconsistent 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 couched in more speculative terms”], disapproved on other grounds 
27

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

We 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 recover for 

harm he “may suffer.” They do not allege instructional error, 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 enforceable involves 

a question of law . . . .” (Ibid.; see Berg v. Darden (2004) 120 Cal.App.4th 721, 

727, 731-732 [offer need not contain “magic language,” 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. 

Griffin (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 made 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-entitled action in the amount of One 

Million Dollars ($1,000,000) for your several liability only 

and not for a discharge of any other Defendant’s liability.

[¶] Acceptance of this offer constitutes agreement that the 

sum paid shall afford only a deduction from 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, whichever 

occurs first, it shall be deemed withdrawn.”

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

They 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. In 

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 the 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 dismiss defendant 

[ASMG] for a waiver of costs, contingent on Dr. Canada’s acceptance of [her]

statutory offer to compromise.” She later reiterated she had “offered to 

compromise 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. She further contends that, had they 
30

raised this alleged ambiguity, she could 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. Canada 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 consider 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 acknowledging McCarley “offer[ed] to dismiss [Dr. Canada]” and 

arguing only that the offer was not in good faith or reasonable. Their

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

dismissal of Dr. Canada, and further supports forfeiture. (See Bikkina v. 

Mahadevan (2015) 241 Cal.App.4th 70, 93 [declining to review forfeited 

contention “[g]iven that the parties did not develop the factual record below 

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. (See Ward, supra, 51 

Cal.2d at p. 742 [theory did not contemplate “factual situation different from 
31

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 rely 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 could 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 frustrate 

statutory purpose and allow defendant that declined “very reasonable 

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 on 

appeal.

O’ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

DO, J.