Filed 8/21/20 Movsesian v. Ourishian CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 EIGHT

SEVAN MOVSESIAN,

Plaintiff and Appellant,

v.

LILIAN OURISHIAN et al.,

Defendants and Respondents.

 B296836

 (Los Angeles County

 Super. Ct. No. BC615094)

APPEAL from a judgment and orders of the Superior Court 

of Los Angeles County. Victor E. Chavez, Judge. Affirmed.

The Arkin Law Firm, Sharon J. Arkin; Law Offices of 

Robert Dourian, Robert Dourian and Z. Sondra Derderian; 

Doumanian & Associates and Nancy P. Doumanian for Plaintiff 

and Appellant

Mark R. Weiner & Associates, Kathryn Albarian and 

Michael Park for Defendants and Respondents.

_____________________________
2

Appellant Sevan Movsesian sued Lilian Ourishian seeking 

compensation for injuries he suffered when Ourishian struck him 

with a car. The jury awarded Movsesian around $44,000 in 

damages, which was significantly less than he sought. The trial 

court subsequently denied Movsesian’s motion for new trial and 

awarded Ourishian costs pursuant to Code of Civil Procedure 

section 998. Movsesian appealed. 

For purposes of appeal, Movsesian designated a partial 

reporter’s transcript of the proceedings below. He failed, 

however, to state the points he intended to raise on appeal, as 

required under rule 8.130(a)(2) of the California Rules of Court 

(Rule 8.130(a)(2)). The failure to state a point precludes a party 

from asserting it on appeal, unless the reviewing court permits 

otherwise. 

Ourishian brought this deficiency to Movsesian’s attention 

at least three times, the earliest being three days after he filed 

the notice of designation of record. Movsesian, however, 

addressed the issue for the first time in a motion filed 

concurrently with his reply brief, in which he urges us to exercise 

our discretion to overlook his failure to comply with Rule 

8.130(a)(2). Because Movsesian’s violation was egregious and 

inexcusable, we refuse to do so. Accordingly, we affirm the 

judgment and orders.

FACTUAL AND PROCEDURAL BACKGROUND

In 2014, Ourishian struck Movsesian with her car while 

Movsesian was riding a bicycle. Movsesian filed a complaint 

against Ourishian, alleging he suffered a sacroiliac joint injury, 

which caused permanent chronic pain. This alleged injury was 

the basis for most of Movsesian’s claimed damages. 
3

Ourishian conceded liability, and the case proceeded to a 

jury trial to determine damages. Ourishian read to the jury 

excepts from the deposition transcript of her expert, Dr. Robert 

Klapper, who opined that the collision did not cause Movsesian to 

suffer a sacroiliac joint injury. He based that opinion, in part, on 

a radiologist’s report that an MRI, taken more than a year after 

the collision, showed no pathology in the area (the MRI report). 

According to Dr. Klapper, if there were a sacroiliac joint injury 

caused by the collision, it would have appeared on the MRI. 

The jury returned a verdict for Movsesian in the amount of 

$44,458.45, consisting of $31,458.45 for past medical expenses 

and $13,000 for past noneconomic losses. It awarded nothing for 

future economic losses, future lost earnings, and future 

noneconomic losses. 

Juror Misconduct 

Movsesian filed a motion for new trial on the basis that one 

of the jurors improperly inserted his own expert opinions into 

deliberations. In support, Movsesian submitted a declaration 

from Juror No. 4, which recounted that Juror No. 9 “started

[deliberations] by stating he worked at UCLA, in the fields of 

orthopedics. He presented himself as an expert in the medical 

field and spoke about his knowledge and experience on matters 

presented during trial. [Juror No. 9] injected his own medical 

opinions.” Juror No. 4 did not provide any further details. 

Movsesian also submitted declarations from two of his 

attorneys, who spoke with Juror No. 9 and several other jurors 

shortly after the trial. According to the attorneys, Juror No. 9 

admitted making specific comments during deliberations based 

on his personal experiences, including as an emergency room 
4

nurse. Movsesian argued the comments expressed improper 

expert opinions and constituted misconduct. 

The trial court rejected Movsesian’s claim of juror 

misconduct. In doing so, it declined to consider the declarations 

from his attorneys, which it noted contained inadmissible 

hearsay. The court concluded the declaration from Juror No. 4 

was not sufficient to establish misconduct because the juror did 

“not identify any statements, e.g., specific medical opinions made 

by [Juror No. 9] that are tethered to a specific issue in the case, 

that would be an ‘overt act’ of misconduct.” 

Admission of Deposition Testimony 

Movsesian also argued in his motion for new trial that the 

court improperly admitted Dr. Klapper’s deposition testimony, 

rather than requiring he testify in person. Ourishian responded 

that it was necessary to read from the deposition because 

Dr. Klapper’s surgery schedule presented a conflict with trial, 

and Movsesian refused to allow him to testify out of order. 

The trial court rejected Movsesian’s arguments, finding the 

reading of the deposition was proper under Code of Civil 

Procedure section 2025.620, subdivision (c)(3).

1 That provision 

allows a party to use for any purpose the deposition of a witness 

if the court finds “[e]xceptional circumstances exist that make it 

desirable to allow the use of any deposition in the interests of 

justice and with due regard to the importance of presenting the 

testimony of witnesses orally in open court.” (§ 2025.620, subd. 

(c)(3).) The court explained that the “refusal to stipulate to 

Dr. Klapper’s appearance out-of-order created an exceptional 

circumstance for allowing Dr. Klapper’s deposition testimony to 

1 All further undesignated statutory references are to the 

Code of Civil Procedure. 
5

be read into the record because, otherwise, the Defendant 

would . . . not have had expert testimony on the Plaintiff’s 

medical condition and damages. In these circumstances, it was 

desirable to allow the use of Dr. Klapper’s deposition in the 

interests of justice.” 

Costs Award

After trial, each party filed a memorandum of costs, and 

each responded by filing motions to tax or strike the other party’s 

memorandum. The primary dispute was whether Ourishian 

made valid section 998 offers, thereby shifting the liability for 

costs. 

Ourishian made her first section 998 offer in February 

2018. The offer was for $50,000 and provided as follows: 

“Defendant[] Lilian Ourishian . . . offer[s] to settle this 

matter with plaintiff Sevan Movsesian pursuant to Section 

998 of the Code of Civil Procedure for the sum of 

$50,000.00, to be paid by draft issued to

Sevan Movsesian, Kaiser Permanente and Law Offices of

Robert Dourian, in exchange for a dismissal with prejudice

of the complaint against offering defendant(s), each party

to bear their own costs and attorney’s fees.” 

Movsesian did not accept the offer. 

In October 2018, Ourishian made a second section 998 

offer, this time for $80,000. Once again, Movsesian did not accept 

the offer. 

In opposing Ourishian’s request for costs, Movsesian 

argued the offers were unreasonable and made in bad faith, the 

February offer was too uncertain, and the October offer 

extinguished and superseded the February offer. The court 
6

rejected each argument and awarded Ourishian $54,617.42 in 

costs, dating back to the February offer. 

Movsesian timely appealed the judgment, the order 

denying motion for new trial, and the order awarding costs.

DISCUSSION

I. Movsesian’s Failure to Comply with Rule 8.130(a)(2) 

Precludes Him From Raising Any Points on Appeal

Ourishian contends Movsesian is precluded from asserting 

each point he raises on appeal given his failure to comply with

Rule 8.130(a)(2). We agree. 

A. Background

On April 15, 2019, Movsesian filed a form notice 

designating record on appeal, in which he requested only a single 

pre-trial hearing be included in the reporter’s transcript. A 

subsequent section of the form directs that if the “designated 

proceedings DO NOT include all of the testimony, state the 

points that you intend to raise on appeal.” It cites Rule 

8.130(a)(2) and notes “your appeal will be limited to these points 

unless, on motion, the reviewing court permits otherwise.” 

Movsesian left this section blank. 

Three days later, Ourishian filed in the trial court an 

objection to the notice on the basis that it failed to comply with 

Rule 8.130(a)(2). Ourishian served the objection on Robert 

Dourian, that is the attorney that signed the notice of 

designation. 

About four months later, on August 23, 2019, Sharon Arkin 

associated in as lead appellate counsel for Movsesian. Dourian 

continues to represent Movsesian on appeal as well. 

On December 2, 2019, three days before Movsesian’s 

opening brief was due, Arkin sent an email to Ourishian’s counsel 
7

asking that she stipulate to augmenting the record to include the 

full reporter’s transcript because “the entire transcript is 

necessary in order to demonstrate prejudice.” Ourishian’s 

counsel declined to stipulate and referred Arkin to her prior 

objection related to the failure to comply with Rule 8.130(a)(2). 

Later that day, Arkin filed in this court a motion to 

augment the record to include the entire reporter’s transcript, or 

alternatively, transcripts for several proceedings that could be 

prepared before the opening brief was due. The request asserts 

the “entire transcript is necessary to demonstrate the trial court’s 

abuse of discretion and resulting prejudice from its denial of the 

motion for new trial.” This court denied the request with respect 

to the entire reporter’s transcript, but granted the request as to 

those proceedings that could be prepared quickly. Movsesian 

filed the augmented reporter’s transcript the same day he filed 

his opening brief. 

Ourishian filed her respondent’s brief on February 19, 

2020. In it, she urges us to decline to consider the points raised 

in Movsesian’s opening brief given his failure to state those 

points in his notice designating record, as required under Rule 

8.130(a)(2). 

Movsesian filed his reply brief about three months later, on 

May 20, 2020. The same day, he filed a motion urging us to 

overlook his failure to comply with Rule 8.130(a)(2). According to 

Movsesian, his failure to comply with the rule was the result of 

inadvertent error as well as Ourishian’s failure to serve the April 

19, 2019 objection on all of his counsel. He also contends the 

issues raised in his opening brief can be decided on the record 

provided. 
8

According to declarations attached to the motion, although 

the notice designating record was signed by attorney Robert 

Dourian, one of Movsesian’s other attorneys from a different firm, 

Nancy Doumanian, prepared it. Doumanian mistakenly 

overlooked the section requiring she identify all points to be 

raised on appeal. 

Dourian did not deny receiving Ourishian’s objection to the 

notice designating record, but explained he did not “adequately 

understand or appreciate the technical deficiency.” He also 

assumed Doumanian would take care of it, since she had been 

tasked with all work necessary to move the appeal forward. 

Doumanian, however, had not been served with the objection, 

and therefore did not know about the issue until she received the 

respondent’s brief. 

B. Analysis 

Rule 8.130(a)(2) states: “If the appellant designates less 

than all the testimony [in the notice designating reporter’s 

transcript], the notice must state the points to be raised on 

appeal; the appeal is then limited to those points unless, on 

motion, the reviewing court permits otherwise.” Enforcement of 

Rule 8.130(a)(2) does not undermine the policy of deciding 

appeals on their merits. (Aspen Grove Condominium Assn. v. 

CNL Income Northstar LLC (2014) 231 Cal.App.4th 53, 60

(Aspen).) 

Here, Movsesian designated a partial reporter’s transcript 

that did not include all the testimony given in the trial court, but 

he failed to state in the notice any points to be raised on appeal. 

As Movsesian concedes, under the plain language of Rule 

8.130(a)(2), he is precluded from raising any points on appeal, 

unless we permit otherwise. We decline to do so. 
9

Movsesian’s failure to comply with Rule 8.130(a)(2) was 

egregious and inexcusable. Ourishian’s objection brought the 

issue to his attention more than a year ago, and only a few days 

after he filed the deficient designation of record. Movsesian’s 

excuses for not addressing the issue then—that the attorney who 

received the objection did not understand the significance of the 

issue and just assumed another attorney would take care of it—

are far from compelling. Indeed, they strain credulity. 

Even if the claims are true, Movsesian nonetheless fails to 

explain why his lead appellate counsel, Arkin, did not address the 

issue immediately after it was brought to her attention in 

December 2019. Nor does he explain why, after the issue was 

raised for the third time in the respondent’s brief, he waited 

three additional months to finally address it. 

Movsesian is also wrong to claim the issues raised on 

appeal can be fully resolved on the designated record. As 

discussed more fully in the next section, we agree with his 

previous representation to this court that the “entire transcript is 

necessary to demonstrate the trial court’s abuse of discretion and 

resulting prejudice from its denial of the motion for new trial.” 

Moreover, despite challenging rulings related to claims of juror 

misconduct, the admission of deposition testimony, and an award 

of costs, Movsesian failed to designate a single transcript 

evidencing any substantive discussion of those issues. His failure 

to do so significantly limits our ability to review the issues. 

For these reasons, we decline to exercise our discretion to 

overlook Movsesian’s complete failure to comply with Rule 

8.130(a)(2). Movsesian, therefore, is precluded from raising any 

points on appeal. (See Price v. Tree Topper Timber Co. (1962) 202 

Cal.App.2d 412, 415 [appellant’s failure to identify any points on 
10

appeal waived all issues under predecessor to Rule 8.130(a)(2)]; 

see also Aspen, supra, 231 Cal.App.4th at p. 60 [declining to 

consider issues raised in appellant’s opening brief that were not 

identified in the designation of record]; McDaniel v. Dowell (1962) 

210 Cal.App.2d 26, 30 [same].) As a result, he cannot meet his 

burden of showing error, and we must affirm the trial court’s 

judgment and orders. 

II. Movsesian’s Arguments Lack Merit

Even if we were to overlook Movsesian’s complete failure to 

comply with Rule 8.130(a)(2), we would reject each of his 

arguments on the merits. 

A. Movsesian Has Not Shown Juror Misconduct 

The trial court did not err in refusing to grant a new trial 

based on juror misconduct. The attorney declarations submitted 

in support of the motion contained hearsay statements by Juror 

No. 9, and the trial court properly excluded them on that basis.2 

(See Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 

1670 [declarations by investigator concerning purported 

statements by two jurors during deliberations were inadmissible 

hearsay]; People v. Bryant (2011) 191 Cal.App.4th 1457, 1468 

[“a trial court does not abuse its discretion in denying a motion 

for new trial based upon juror misconduct when the evidence in 

support constitutes unsworn hearsay”].) Without the attorney 

declarations, the only evidence supporting Movsesian’s claim is 

2 Movsesian is simply wrong when he claims the attorney 

declarations do not contain hearsay. The declarations relay that 

Juror No. 9 admitted making certain comments during 

deliberations, and Movsesian offered the declarations to prove 

that Juror No. 9 actually made those comments during 

deliberations. This is hearsay. (See Evid. Code, § 1200, 

subd. (a).)
11

the declaration of Juror No. 4. That declaration is far too vague 

and conclusory to support a finding of juror misconduct. 

(Cf. People v. Cook (2015) 236 Cal.App.4th 341, 345 [vague or 

conclusory allegations of juror misconduct are not sufficient to 

create a reasonable belief that juror misconduct occurred]; 

People v. Rhodes (1989) 212 Cal.App.3d 541, 554 [affidavit was 

“too vague and conclusionary to constitute an adequate 

preliminary showing of juror misconduct”].) 

We reject Movsesian’s contentions that the trial court 

should have admitted the attorney declarations under various

exceptions to the hearsay rule. There is nothing in the record 

showing he made these arguments below, which forfeits them on 

appeal.3 (See Shaw v. County of Santa Cruz (2008) 170 

Cal.App.4th 229, 282–283 [to preserve a claim that evidence was 

admissible under a hearsay exception, “the proponent has to have 

alerted the trial court to the exception relied upon and borne the 

burden below of laying the proper foundation”]; Clark v. Optical 

Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 170 

[appellant forfeited hearsay exception argument by failing to 

raise it in the trial court].) 

3 Movsesian insists he did not have an opportunity to 

address the hearsay issue below because Ourishian did not raise 

it in her opposition to the motion for new trial. Because 

Movsesian did not provide any record of the hearing on his 

motion for new trial, we may presume the hearsay issue was 

raised at that hearing and the trial court allowed him to address 

it. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 

(Denham); Foust v. San Jose Construction Co., Inc. (2011) 198 

Cal.App.4th 181, 186–188 (Foust).)
12

Regardless, Movsesian has not shown the hearsay 

statements were admissible as declarations against interest

(Evid. Code, § 1230), excited utterances (Evid. Code, § 1240), 

contemporaneous declarations explaining conduct (Evid. Code, 

§ 1241), or statements of mental or physical state (Evid. Code, 

§ 1250). Contrary to his claims, the comments did not subject 

Juror No. 9 to contempt (see § 1209),4 were not made 

spontaneously while under the stress of excitement caused by a 

perception, were not made while Juror No. 9 was engaged in the 

relevant conduct, and did not reflect the juror’s state of mind, 

emotion, or physical sensation. To the extent Movsesian makes 

other claims in his reply brief, they are untimely and we decline 

to consider them. (See Reichardt v. Hoffman (1997) 52 

Cal.App.4th 754, 764–765.) 

B. The Trial Court Did Not Err In Permitting Dr. 

Klapper’s Deposition Be Read to the Jury 

Movsesian contends the trial court abused its discretion to 

the extent it found Dr. Klapper’s deposition testimony admissible 

under section 2025.620, subdivision (d), or Evidence Code section 

1291. He overlooks, however, that the trial court did not find the 

4 In passing, Movsesian suggests Juror No. 9 admitted 

consulting an outside orthopedic doctor to bolster his own expert 

opinions. If true, such action might qualify as contempt under

section 1209, subdivision (a)(6), which forbids outside 

communication or research about the case. However, we do not 

agree with Movsesian that Juror No. 9 made such an admission. 

According to one of the attorney declarations, Juror No. 9 said he 

“spoke to one of the ortho[pedic doctors].” The juror did not say 

when he spoke to the doctor or what they discussed. It is 

therefore pure speculation to conclude Juror No. 9 discussed 

issues in the case with the doctor. 
13

deposition admissible under either provision; instead, it found it 

admissible under section 2025.620, subdivision (c)(3). 

Movsesian’s arguments related to that code section, made for the 

first time in his reply brief, are untimely, and we may disregard 

them on that basis. (See Reichardt v. Hoffman, supra, 52 

Cal.App.4th at pp. 764–765.) The appellate record also does not 

show Movsesian raised the arguments below, which forfeits them 

on appeal. (See In re Marriage of Olson (1993) 14 Cal.App.4th 1, 

15 [“ ‘As a general rule, issues not properly raised at trial will not 

be considered on appeal.’ ”]; Gray1 CPB, LLC v. SCC 

Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 897 [appellate 

courts ignore arguments not presented and litigated in the trial 

court].) 

We also reject Movsesian’s contention that Dr. Klapper’s 

references to the MRI report improperly related inadmissible 

hearsay, in violation of People v. Sanchez (2016) 63 Cal.4th 665 

(Sanchez). When Movsesian raised the objection in a motion in 

limine, Ourishian represented that she intended to introduce the 

MRI report into evidence. Because Movsesian failed to provide a 

complete record of the trial, we may presume she did so 

successfully. (See Denham, supra, 2 Cal.3d at p. 564; Foust, 

supra, 198 Cal.App.4th at pp. 186–188.) Regardless, Movsesian’s 

own treating physician testified that he reviewed the MRI and 

agreed with the findings in the MRI report. Dr. Klapper’s 

references to the contents of the report, therefore, did not run 

afoul of Sanchez. (See Sanchez, supra, 63 Cal.4th at p. 686 [an 

expert may relate as true case-specific facts asserted in hearsay 

statements if “they are independently proven by competent 

evidence or are covered by a hearsay exception”].) Dr. Klapper

was also free to base his opinions on the MRI report and express 
14

those opinions to the jury, regardless of whether the report 

contained inadmissible hearsay. (Id. at pp. 685–686 [an “expert 

may still rely on hearsay in forming an opinion, and may tell the 

jury in general terms that he did so”].) 

Even if the admission of Dr. Klapper’s deposition testimony 

were error, reversal would not be warranted. The erroneous 

admission of evidence is reversible only if it resulted in a 

miscarriage of justice. (Evid. Code, § 353; Shaw v. County of 

Santa Cruz (2008) 170 Cal.App.4th 229, 282.) We cannot make 

that determination, however, given Movsesian failed to designate 

a complete record of the trial. (See Cassim v. Allstate Ins. Co. 

(2004) 33 Cal.4th 780, 800 [to determine whether there was a 

miscarriage of justice, the reviewing court must examine the 

entire cause, including the evidence].) 

C. The Court Properly Awarded Costs Based on the 

February Section 998 Offer 

Movsesian posits various reasons why the trial court erred 

in awarding costs to Ourishian pursuant to the February section 

998 settlement offer. None of his arguments has merit. 

1. The February Offer Was Not Superseded and 

Extinguished 

Contrary to Movsesian’s claims, Ourishian’s February offer 

was not superseded and extinguished by her October offer. 

In Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014

(Martinez), the California Supreme Court held where a “plaintiff 

serves two unaccepted and unrevoked statutory offers, and the 

defendant fails to obtain a judgment more favorable than either 

offer, the trial court retains discretion to order payment of expert 

witness costs incurred from the date of the first offer.” (Id. at 

p. 1026.) Here, Ourishian made multiple offers to settle, and 
15

Movsesian failed to obtain a judgment more favorable than either 

of them. Under Martinez, the trial court had discretion to order 

payment of costs incurred from the date of the first offer. 

Distefano v. Hall (1968) 263 Cal.App.2d 380 (Distefano), 

is distinguishable. In that case, the offeree obtained a judgment 

less favorable than the first settlement offer, but more favorable 

than the second settlement offer. (Distefano, at pp. 383–384.) 

Here, in contrast, Movsesian obtained a judgment less favorable 

than both section 998 offers. For that reason, Martinez controls. 

Indeed, Martinez distinguishes Distefano on this very basis. 

(Martinez, supra, 56 Cal.4th at pp. 1025–1026.) 

2. The February Offer Was Reasonable and Made in 

Good Faith

There is no merit to Movsesian’s contention that the 

February offer was not a reasonable, good faith offer. To decide 

the issue, we consider two factors: (1) whether the offer was 

within the range of reasonably possible results at trial; and 

(2) whether the offeror’s information was known, or should have 

been known, by the offeree. (Elrod v. Oregon Cummins Diesel, 

Inc. (1987) 195 Cal.App.3d 692, 699.) “[W]hether a section 998 

offer was reasonable and made in good faith is a matter left to the 

sound discretion of the trial court.” (Id. at p. 700.) 

As to the first factor, Movsesian points to nothing in the 

record showing that, as of February 2018, $50,000 was not within 

the range of reasonably possible results at trial. (Licudine v. 

Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 924

[reasonableness is based on the circumstances when the offer was 

made].) The fact that the offer exceeded the jury verdict is prima 

facie evidence that it was. (Id. at p. 926; see Calvo Fisher & 

Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608, 629.) Movsesian 
16

suggests the verdict does not accurately reflect the value of the 

case because it was tainted by inadmissible testimony from 

Dr. Klapper and juror misconduct. We have already rejected his 

arguments on these issues, and we reject them again for the 

same reasons. 

Movsesian does not meaningfully contest the second factor;

nor could he. Nothing in the record even suggests Ourishian 

possessed information unknown to Movsesian when the offer was 

made. Indeed, she represented that the offer was based on a 

Kaiser lien for medical services totaling around $30,000, which 

was provided to her by Movsesian. The trial court did not abuse 

its discretion in finding the offer was reasonable and made in 

good faith. 

3. The February Offer Was Not Defective on Its Face

Movsesian contends the term in the February offer 

requiring the $50,000 be “paid by draft issued to Sevan 

Movsesian, Kaiser Permanente and Law Offices of Robert 

Dourian” rendered the offer defective on its face.5 We disagree. 

Contrary to Movsesian’s claims, the term did not make the 

offer contingent upon acceptance by non-parties. (See Meissner v. 

Paulson (1989) 212 Cal.App.3d 785, 791 [“only an offer made to a 

single plaintiff, without need for allocation or acceptance by other

plaintiffs, qualifies as a valid offer under section 998.”]) The offer 

was made to Movsesian alone. Although it required Kaiser 

Permanente (Kaiser) and counsel be named as payees on the 

5 Presumably, Kaiser Permanente and counsel were named 

payees because they had claims to any recovery by Movsesian. 

Kaiser Permanente paid for or provided Movsesian’s medical 

care, and it had a lien over any settlement or judgment. Counsel 

had a contingency fee arraignment with Movsesian. 
17

draft, it did not give either any additional authority to accept or 

reject it. The offer also was not invalid for failing to specify how 

much of the $50,000 was owed to Kaiser and counsel to satisfy 

their respective claims to the settlement. (See Toste v. 

CalPortland Construction (2016) 245 Cal.App.4th 362, 374 [term 

specifying the offeree was “ ‘responsible for all medical 

expenses/liens’ ” did not invalidate a section 998 offer].) 

There is also no merit to Movsesian’s contention that the 

term imposed an additional condition that was incapable of 

precise valuation. According to Movsesian, the term negatively 

impacted his ability to negotiate how much of the settlement was 

owed to counsel and Kaiser, and gave counsel and Kaiser the 

power to withhold their endorsements unless he agreed to their 

own terms and conditions. Such consequences, Movsesian 

suggests, impacted the value of the settlement offer, but did so in 

a way that he could not calculate with precision. (See Berg v. 

Darden (2004) 120 Cal.App.4th 721, 727 [the offeree must be able 

to clearly evaluate the worth of the offer].) 

Movsesian wrongly assumes that, if Kaiser and his counsel 

were not payees, he would have received the settlement funds 

directly, without first having to negotiate the amounts owed to 

each. In practice, no matter who was named on the draft, it 

likely would have been given directly to Movsesian’s counsel. 

Counsel, in turn, would have had the authority to withhold any 

disputed funds until Movsesian resolved the outstanding claims. 

(See, e.g., Fletcher v. Davis (2004) 33 Cal.4th 61, 69 [when 

settlement proceeds have been deposited in the client’s trust 

account, the attorney may withhold an amount equivalent to the 

portion disputed under a charging lien].) Counsel almost 

certainly would have exercised that authority; otherwise, he 
18

would have risked extinguishing his entitlement to the funds and 

exposing himself to personal liability to Kaiser. (See Kaiser 

Foundation Health Plan, Inc. v. Aguiluz (1996) 47 Cal.App.4th

302, 307 disapproved of on other grounds by Snukal v. 

Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754 [attorney 

was liable for settlement proceeds disbursed to his client in 

knowing disregard of a health care provider’s lien]; see also 

Fletcher v. Davis, supra, 33 Cal.4th at p. 69, fn. 2 [to protect a 

charging lien, an attorney must refuse to endorse a settlement 

draft jointly payable to the attorney and client].) If the parties 

could not resolve their disputes informally, counsel could have 

commenced an interpleader action to formally resolve the 

competing claims to the funds. (See § 386, subd. (b); Hood v. 

Gonzales (2019) 43 Cal.App.5th 57 [attorney filed interpleader 

action to resolve client’s and lienholders’ competing claims to 

settlement funds]; Cal. Prac. Guide Prof. Resp. Ch. 9-F, § 9:340 

[faced with conflicting demands by a client and a lienholder, an 

attorney may commence an interpleader action].) In that case, 

Movsesian would not have received any disputed funds until after 

the interpleader action was resolved, either through settlement 

or a judicial determination. 

Although the above procedures would affect only “disputed” 

funds, the record suggests Movsesian’s counsel and Kaiser could 

have made claims to the entire settlement payment. In 

opposition to Ourishian’s request for costs, for example, 

Movsesian represented that when the settlement offer was made, 

he had already incurred $48,300 in medical bills and $6,557 in 

litigation costs. This was in addition to any amounts owed to his 

attorney under the contingency fee agreement. It is unlikely, 

therefore, Movsesian would have received any portion of the 
19

settlement before negotiating those claims, even if he were the 

sole payee on the settlement draft. As a result, he would have 

been in essentially the same position as if he, counsel, and Kaiser 

were jointly named as payees. Considering these circumstances, 

we do not agree with Movsesian that the term naming counsel 

and Kaiser as payees impacted the value of the offer in a 

meaningful way. The February offer was not defective on its 

face.6 

DISPOSITION

The judgment and orders are affirmed. Respondents are 

awarded costs on appeal.

BIGELOW, P. J.

We Concur:

STRATTON, J.

WILEY, J.

6 Because we reject Movsesian’s arguments related to the 

February offer, there is no reason to consider his arguments 

related to the October offer.