Filed 4/20/15 Rashidi v. Moser CA2/4

Opinion on remand from Supreme Court 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

HAMID RASHIDI,

Plaintiff and Appellant,

v.

FRANKLIN MOSER,

Defendant and Appellant.

 B237476

 (Los Angeles County

 Super. Ct. No. BC392082)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Richard L. Fruin, Judge. Affirmed as modified.

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

and Curtis A. Cole for Defendant and Appellant.

Tucker Ellis, E. Todd Chayet, Rebecca A. Lefler, Corena G. Larimer; and 

Fred J. Hiestand as Amici Curiae on behalf of Defendant and Appellant.

Balan & Speilberger, Daniel Balaban, Andrew J. Spielberger; Esner, Chang & 

Boyer, Stuart B. Esner and Holly N. Boyer for Plaintiff and Appellant. 

______________________________________________
2

After undergoing a surgical procedure, plaintiff Hamid Rashidi filed this action for 

professional negligence and other claims. He entered into pretrial settlements with 

defendants Biosphere Medical, Inc. (Biosphere) and Cedars-Sinai Medical Center 

(Cedars-Sinai), for $2,000,000 and $350,000, respectively. He then proceeded to trial 

against the remaining defendant, Franklin Moser, the physician who performed the 

surgical procedure. The jury awarded Mr. Rashidi $1,450,000 against Dr. Moser, 

consisting of $125,000 for future medical expenses, $331,250 for past noneconomic 

damages, and $993,750 for future noneconomic damages. In accordance with Civil Code 

section 3333.2,1enacted as part of the Medical Injury Compensation Reform Act of 1975 

(MICRA), the trial court capped Mr. Rashidi’s award of noneconomic damages at

$250,000, but refused to grant offsets based upon the pretrial settlements with CedarsSinai and Biosphere Medical. 

Both parties appealed from the judgment. Dr. Moser sought offsets based upon 

the pretrial settlements with the other two defendants. Mr. Rashidi challenged the 

constitutionality of MICRA. In a prior opinion, we rejected Mr. Rashidi’s challenge to 

the constitutionality of MICRA, and granted Dr. Moser two offsets: The first, based on 

the settlement with Biosphere Medical, eliminated the economic damages award. The 

second, based on the settlement with Cedars-Sinai, reduced the noneconomic damages 

award to $16,655. 

Mr. Rashidi petitioned the Supreme Court for review, and his petition was granted 

only as to the reduction of noneconomic damages. That aspect of our decision was 

reversed, and in all other respects, the decision was affirmed. (Rashidi v. Moser (2014) 

60 Cal.4th 718 (Rashidi).) In accordance with the Supreme Court’s decision, we issue 

this revised opinion. 

 

1 All further statutory references are to the Civil Code, unless otherwise specified.
3

FACTUAL AND PROCEDURAL SUMMARY

According to the allegations of the charging pleading, in April 2007, 26-year-old 

Rashidi went to the emergency room at Cedars-Sinai Medical Center with a severe nose 

bleed. He was treated and discharged. In May 2007, he again went to the emergency 

room at Cedars-Sinai for a severe nose bleed. This time, he was examined by Dr. Moser, 

who advised him “to have an operation to treat his nose bleeds and/or arteriovenous 

malformation.” 

The operation, an embolization procedure, was performed by Dr. Moser at CedarsSinai the same day. It involved insertion of a catheter into an artery in Mr. Rashidi’s leg

and up into the nose, and injection of embospheres into the catheter to permanently and

irreversibly occlude blood vessels. The embosphere microspheres used by Dr. Moser 

were manufactured by Biosphere Medical, Inc. When Mr. Rashidi regained 

consciousness, he was blind in one eye. The blindness is permanent. 

Mr. Rashidi brought this action against Dr. Moser, Cedars-Sinai, and Biosphere 

Medical. He alleged causes of action against Dr. Moser and Cedars-Sinai for medical 

malpractice and medical battery. He also alleged causes of action against Biosphere 

Medical for product liability based on design or manufacturing defect, failure to warn, 

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

theory against Biosphere Medical was that the particles it manufactured had specific 

chemical and elastic physical qualities which enhanced their ability to travel through very 

small blood vessels and collateral veins, causing a significant risk that they would travel 

through the blood system to sites other than the intended surgical sites, and that they did 

so in this case, causing the blindness. Mr. Rashidi alleged that Biosphere failed to 

disclose this risk, and failed to disclose that the embosphere microspheres were of 

nonuniform size, instead marketing the product as being of uniform size which allowed 

for accurate targeting of particular arteries. 

Mr. Rashidi settled with Biosphere Medical for $2 million. He settled with 

Cedars-Sinai Medical Center for $350,000. Each settling defendant moved for a 

determination that its settlement was in good faith. Notice of each motion was served on 
4

all parties, including Dr. Moser. The motions were unopposed and were granted. 

Trial proceeded against Dr. Moser, the remaining defendant. The jury found his 

diagnosis or treatment of Mr. Rashidi was negligent, and that this negligence was a cause 

of the injury to Mr. Rashidi. It awarded Mr. Rashidi $125,000 present cash value for 

future medical care resulting from this negligence, $331,250 for past noneconomic 

damages, and $993,750 for future noneconomic damages. In accordance with MICRA’s 

cap on noneconomic damages, the court reduced the noneconomic damages to $250,000. 

Dr. Moser argued there should be an offset against this judgment, based upon the 

pretrial settlements with Cedars-Sinai and Biosphere Medical that were found to be in

good faith. The trial court rejected this argument, finding no basis for allocating the 

settlement sums between economic and noneconomic damages. As the court explained, 

the agreements with the settling defendants did not make any such allocation, the affected

defendants did not participate in the trial, and the jury was not requested to determine the 

proportionate fault, if any, of the settling defendants. 

Dr. Moser filed a timely notice of appeal. Mr. Rashidi filed a cross-appeal, 

challenging the constitutionality of MICRA. In our prior opinion, we found the cap on 

noneconomic damages to be constitutional, and granted Dr. Moser an offset that 

eliminated the economic damages award, and another offset that reduced the 

noneconomic damages award to $16,655. 

Mr. Rashidi petitioned the Supreme Court for review of two issues: the 

constitutionality of MICRA; and the offset that reduced the noneconomic damages

award. Review was granted only as to the second issue. The Supreme Court reversed the 

offset against noneconomic damages, which remains capped at $250,000, and affirmed 

the remainder of our decision. (Rashidi, supra, 60 Cal.4th 718.) We issue this revised 

opinion in accordance with the Supreme Court’s ruling.
5

DISCUSSION

I

In light of the Supreme Court’s ruling, we affirm the trial court’s denial of an 

offset against noneconomic damages. (Rashidi, supra, 60 Cal.4th at pp. 724–728.) The 

award of noneconomic damages remains capped at $250,000. 

Although the settlements paid by Cedars-Sinai and Biosphere Medical exceeded 

the $1,450,000 jury verdict against Dr. Moser, the liability of the settling defendants, if 

any, has not been established. Neither Cedars-Sinai nor Biosphere Medical was involved 

in the trial; no apportionment of their comparative fault, if any, was made by the jury. 

Dr. Moser is the only defendant whose liability for noneconomic damages has been

proven. 

As the Supreme Court explained, if Dr. Moser had “established any degree of fault 

on his codefendants’ part at trial, he would have been entitled to a proportionate 

reduction in the capped award of noneconomic damages.” (Rashidi, supra, 60 Cal.4th at 

p. 727.) But because that did not occur, he is not entitled to “a setoff against damages for 

which he alone was responsible.” (Ibid.; § 1431.2 [liability for noneconomic damages is 

several only].)

2

II

As to economic damages, we previously held that Dr. Moser is entitled to an offset 

 

2 The right to an offset of economic damages involves the interplay between Code 

of Civil Procedure section 877, which addresses the impact of a good faith settlement on 

settling and nonsettling tortfeasors, and section 1431.2, which provides that liability for 

noneconomic damages is several only, in accordance with the percentage of fault. 

Section 1431.2 was adopted by the passage of Proposition 51 as part of the Fair 

Responsibility Act of 1986. It provides in pertinent part: “(a) In any action for personal 

injury, property damage, or wrongful death, based upon principles of comparative fault, 

the liability of each defendant for non-economic damages shall be several only and shall 

not be joint. Each defendant shall be liable only for the amount of non-economic 

damages allocated to that defendant in direct proportion to that defendant’s percentage of 

fault, and a separate judgment shall be rendered against that defendant for that amount.”
6

based on the settlement paid by Biosphere Medical. That aspect of our prior decision, 

which was not challenged in Mr. Rashidi’s petition for review, was affirmed. (Rashidi,

supra, 60 Cal.4th at pp. 722–723, 728.) Our analysis, as stated in the prior opinion, is set 

forth below. 

Code of Civil Procedure section 877 describes the impact of a good faith 

settlement on settling and nonsettling tortfeasors: “Where a release, dismissal with or 

without prejudice, or a covenant not to sue or not to enforce judgment is given in good 

faith before verdict or judgment to one or more of a number of tortfeasors claimed to be 

liable for the same tort, . . . it shall have the following effect: [¶] (a) It shall not discharge 

any other such party from liability unless its terms so provide, but it shall reduce the 

claims against the others in the amount stipulated by the release, the dismissal or the 

covenant, or in the amount of the consideration paid for it, whichever is the greater. [¶] 

(b) It shall discharge the party to whom it is given from all liability for any contribution 

to any other parties.” 

With respect to economic damages, codefendants are jointly and severally liable. 

(Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1198.) Section 1431.2 “retains 

the joint liability of all tortfeasors, regardless of their respective shares of fault, with 

respect to all objectively provable expenses and monetary losses.” (DaFonte v. UpRight, Inc. (1992) 2 Cal.4th 593, 600.) 

As we have noted, in this case there was no allocation between economic and 

noneconomic damages in either of the good faith settlements.3 “The absence of a court 

approved pretrial allocation of a settlement between economic and noneconomic damages 

does not preclude a court from making a postverdict allocation. [Citations.] Some 

allocation of an undifferentiated settlement between economic and noneconomic 

damages is required because only the amount attributable to the joint responsibility for 

 

3 Dr. Moser did not object to the good faith determination as to either settlement, 

nor did he ask the court at the time of either good faith hearing to make a determination as

to the allocation of the settlement between economic and noneconomic damages.
7

economic damages may be used as an offset.” (Ehret v. Congoleum Corp. (1999) 73 

Cal.App.4th 1308, 1320.) 

In the absence of a pretrial allocation, courts have developed a method for 

applying the allocations of the jury verdict to the settlements. (Espinoza v. Machonga

(1992) 9 Cal.App.4th 268, 276–277; see also Poire v. C.L. Peck/Jones Brothers 

Construction Corp. (1995) 39 Cal.App.4th 1832, 1838–1839; Greathouse v. Amcord, Inc. 

(1995) 35 Cal.App.4th 831, 840–841.) The method is to allocate the settlements so that 

they mirror the jury’s apportionment of economic and noneconomic damages. (Jones v. 

John Crane, Inc. (2005) 132 Cal.App.4th 990, 1006.) This is done by calculating the 

percentage of the award attributable to economic damages in relationship to the entire 

award, and then applying that same percentage to the settlement. (Espinoza v. 

Machonga, supra, at p. 277.) This will yield the portion of the settlement attributable to 

economic damages, for which the nonsettling defendant is entitled to an offset. (Rashidi, 

supra, 60 Cal.4th at pp. 722–723.) 

The jury awarded Mr. Rashidi a total of $1,450,000 against Dr. Moser. Of this, 

$125,000 was for economic damages. The percentage of the award attributable to 

economic damages is 8.62 percent. Applying that percentage to the $2 million settlement 

with Biosphere Medical, we calculate that $172,400 of that settlement should be allocated 

to economic damages. Under section 877, Dr. Moser is entitled to a reduction of the 

claim against him in that amount. Since the jury’s verdict for economic damages against 

Dr. Moser was only $125,000, the Biosphere Medical settlement completely offsets that 

portion of Dr. Moser’s obligation to Mr. Rashidi. The judgment should reflect this offset. 

(Rashidi, supra, 60 Cal.4th at pp. 722–723, 728.) 

III

In the cross appeal, Mr. Rashidi challenged the constitutionality of MICRA. In 

our prior opinion, we considered and rejected this contention. The Supreme Court denied 

review of that issue, which was affirmed. (Rashidi, supra, 60 Cal.4th at p. 728.) Our 

analysis, taken from the prior opinion, is restated below. 
8

As the court observed in Stinnett v. Tam (2011) 198 Cal.App.4th 1412, 1419, 

“After MICRA’s enactment, judicial challenges to various provisions of MICRA were 

abundant, but unsuccessful.” We find settled, well-reasoned authority rejecting each of 

the constitutional claims. 

Mr. Rashidi’s first claim is that the $250,000 damages cap violates a plaintiff’s 

constitutional right to a jury trial. In Yates v. Pollock (1987) 194 Cal.App.3d 195, 200, 

the court characterized this same claim as “an indirect attack upon the Legislature’s 

power to place a cap on damages.” In American Bank & Trust Co. v. Community 

Hospital (1984) 36 Cal.3d 359, 368–369 (American Bank) and Fein v. Permanente 

Medical Group (1985) 38 Cal.3d 137, 158 (Fein), the Supreme Court confirmed that a 

plaintiff has no vested property right in a particular measure of damages, and the 

Legislature has broad authority to modify the scope and nature of such damages. “‘So 

long as the measure is rationally related to a legitimate state interest, policy 

determinations as to the need for, and the desirability of, the enactment are for the 

Legislature.’” (Fein, supra, at p. 158, quoting American Bank, supra, at pp. 368–369.)

The Supreme Court found that the $250,000 ceiling on the recovery of noneconomic 

damages is rationally related to the objective of reducing the costs of medical malpractice 

litigation and in that way restraining the costs of medical malpractice insurance 

premiums. (Id. at p. 159.) The court found no California case suggesting “that the right 

to recover for noneconomic injuries is constitutionally immune from legislative limitation 

or revision.” (Id. at pp. 159–160.)

In American Bank, supra, 36 Cal.3d at page 376, the court explained that the 

constitutional guarantee of jury trial operates at the time of trial to require submission of 

certain issues to the jury. Once a verdict has been returned, the effect of the 

constitutional provision is to prohibit improper interference with the jury’s decision. 

There is no such improper interference under MICRA. The issue of damages is still 

submitted to the jury. The subsequent reduction of the damages awarded—either under 

the periodic payment provision challenged in American Bank (Code Civ. Proc., § 667.7), 

or under the damages cap challenged in this case—does not improperly interfere with the 
9

jury’s decision. (American Bank, supra, 36 Cal.3d at pp. 376–377; Yates v. Pollock,

supra, 194 Cal.App.3d at p. 200.)

Next, Mr. Rashidi claims the damages cap violates equal protection because it 

“arbitrarily imposes a one-size-fits-all” $250,000 limit on the noneconomic damages a 

plaintiff may receive in a medical malpractice action, regardless of the jury’s findings as 

to the extent and severity of a plaintiff’s injuries. In Fein, supra, 38 Cal.3d at pages

161–162, the Supreme Court considered and rejected a similar claim. The Legislature 

had a rational basis for enacting the damages limitation, and sought to obtain the desired 

cost savings only by limiting noneconomic damages. This limitation applies equally to 

all plaintiffs, without precluding the more seriously injured plaintiff from obtaining 

complete compensation for out-of-pocket medical expenses or lost earnings. (Id. at 

p. 162; Stinnett v. Tam, supra, 198 Cal.App.4th at p. 1425.) Mr. Rashidi’s argument 

regarding the need to adjust the MICRA cap so that it is indexed for inflation should be 

directed to the Legislature. (See Stinnett v. Tam, supra, at p. 1432.) 

Mr. Rashidi also argues that section 3333.2 violates the separation of powers by 

requiring the courts to enter judgment in an amount unrelated to the facts found by the 

jury. The Supreme Court has recognized the authority of the Legislature to limit the 

recovery of noneconomic damages. (Fein, supra, 38 Cal.3d at pp. 157–160.) The 

Legislature possesses broad authority to establish or to abolish tort causes of action. 

(Cheong v. Antablin (1997) 16 Cal.4th 1063, 1069.) Although that authority necessarily 

affects the work of the judiciary, it does not impermissibly impinge on that separate 

branch of government. We find no violation of the separation of powers by the

requirement that the court reduce awards of noneconomic damages to comply with the 

MICRA ceiling. 
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DISPOSITION

The judgment is modified to reflect an offset against economic damages in the 

amount of $125,000, thus satisfying the economic damages award. In all other respects, 

the judgment is affirmed. The parties are to bear their own costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.