Filed 9/23/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

HAMID RASHIDI,

Plaintiff, Respondent and 

Cross-Appellant, 

v.

FRANKLIN MOSER, M.D.,

Defendant, Appellant

and Cross-Respondent.

 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, Appellant and Cross-Respondent.

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

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

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

Boyer, Stuart B. Esner and Holly N. Boyer for Plaintiff, Respondent and CrossAppellant. 

_________________________________________
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In this case, we deal with the intersection of three statutes addressing the recovery 

of damages: Civil Code section 3333.2,1part of the Medical Injury Compensation 

Reform Act of 1975 (MICRA), limiting recovery of noneconomic damages for medical 

malpractice to a total of $250,000; section 1431.2, part of the Fair Responsibility Act of 

1986 adopted by the passage of Proposition 51, which provides that liability for 

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

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

settlement on settling and nonsettling tortfeasors. 

Appellant Franklin Moser, a physician, challenges the damages awarded against 

him in this medical malpractice action, claiming the trial court should have offset the 

entire award, including both economic and noneconomic damages, based on pretrial good 

faith settlements by two codefendants. In his cross-appeal, respondent Hamid Rashidi 

raises constitutional challenges to the limitation on noneconomic damages in MICRA. 

We find appellant was entitled to an offset as to the economic damages awarded by the 

jury and to a portion of the noneconomic damages, and reject respondent‘s constitutional 

challenges to MICRA. 

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 

 

1

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

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

were manufactured by Biosphere Medical, Inc. When 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. The settling defendants each moved for a 

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

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

court. 

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

was negligent in the diagnosis or treatment of Mr. Rashidi and that this negligence was a 

cause of 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 
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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, those 

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

finding of proportionate fault attributed to the settling defendants. Dr. Moser filed a 

timely notice of appeal. Mr. Rashidi filed a cross-appeal, challenging the 

constitutionality of MICRA.

DISCUSSION

I

The issues raised by Dr. Moser concern the amount of economic and noneconomic 

offset he should have been given against the award of damages, based on the pretrial 

settlements by Cedars-Sinai and Biosphere Medical. The easier question—the right to an 

offset of economic damages—involves the interplay between Code of Civil Procedure 

section 877 and section 1431.2. 

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.‖ 

Section 1431.2 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 
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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.‖ 

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. On the other hand, the more intangible and subjective categories of damage were 

limited by [section 1431.2] to a rule of strict proportionate liability.‖ (DaFonte v. UpRight, Inc. (1992) 2 Cal.4th 593, 600.) With respect to economic damages, codefendants 

are jointly and severally liable, but with respect to noneconomic damages, liability is 

several but not joint: ―each defendant is liable for only that portion of the plaintiff‘s 

noneconomic damages which is commensurate with that defendant‘s degree of fault for 

the injury.‖ (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1198.) 

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

noneconomic damages in either of the good faith settlements.2 ―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. . . . Some allocation of 

an undifferentiated settlement between economic and noneconomic damages is required 

because only the amount attributable to the joint responsibility for 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 idea 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

 

2 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. 
6

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.

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.

II

The other settling defendant, Cedars-Sinai, and nonsettling defendant, Dr. Moser, 

are both healthcare providers, so the calculation of the percentage of the award 

attributable to economic damages is different. These health care providers are entitled to 

the benefit of MICRA, which limits the amount of noneconomic damages a plaintiff may 

recover for injury by health care providers.

The relevant portion of MICRA is found in section 3333.2: ―(a) In any action for 

injury against a health care provider based on professional negligence, the injured 

plaintiff shall be entitled to recover noneconomic losses to compensate for pain, 

suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary 

damage. [¶] (b) In no action shall the amount of damages for noneconomic losses 

exceed two hundred fifty thousand dollars ($250,000).‖ 

Because the MICRA cap applies, the noneconomic portion of the total award to be 

used in the percentage calculation must be reduced to $250,000. (Mayes v. Bryan (2006) 

139 Cal.App.4th 1075, 1101–1102; Gilman v. Beverly California Corp. (1991) 231 

Cal.App.3d 121, 128–129.) The total award for this purpose is $375,000: $125,000 in

economic damages and $250,000 in noneconomic damages. The percentage of economic 
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damages to the total is 33.33 percent. Applying that percentage to the $350,000 

settlement with Cedars-Sinai, $116,655 of the settlement is attributable to economic 

damages; the remaining $233,345 is consequently attributable to noneconomic damages.

III

That brings us to the intersection of section 1431.2 and MICRA. Ordinarily, each 

health care provider would pay its share of the noneconomic loss, based on its portion of 

liability, in accordance with the several but not joint obligation for noneconomic losses 

under section 1431.2. (Gilman v. Beverly California Corp., supra, 231 Cal.App.3d at 

pp. 128–130.) ―A defendant bears the burden of proving affirmative defenses and 

indemnity cross-claims. Apportionment of noneconomic damages is a form of equitable 

indemnity in which a defendant may reduce his or her damages by establishing others are 

also at fault for the plaintiff‘s injuries. Placing the burden on defendant to prove fault as 

to nonparty tortfeasors is not unjustified or unduly onerous.‖ (Wilson v. Ritto (2003) 

105 Cal.App.4th 361, 369.) It is similarly reasonable to place the burden on a nonsettling 

defendant to prove fault as to settling tortfeasors for purposes of apportioning 

noneconomic damages. 

At trial, Dr. Moser presented no evidence that Cedars-Sinai was at fault, and the

court ruled he had presented insufficient evidence to support instructions on that theory 

as to Biosphere Medical.

3

 The special verdict form asked the jury to determine if 

Dr. Moser was negligent in the diagnosis and treatment of Mr. Rashidi, and, if so,

whether that negligence was a cause of injury to him. The jury answered both questions 

in the affirmative. Mr. Rashidi argues that since Dr. Moser is the only defendant found at 

fault, Dr. Moser is liable for all of the MICRA-reduced noneconomic damages of 

$250,000. This result is consistent with the express purpose of section 1431.2, ―to 

eliminate the perceived unfairness of imposing  ̳all the damage‘ on defendants who were 

 ̳found to share [only] a fraction of the fault.‘ [Citation.]‖ (DaFonte v. Up-Right, Inc., 

supra, 2 Cal.4th at p. 603.) Under section 1431.2, since there was no apportionment of 

 

3 Dr. Moser does not challenge that ruling on appeal, nor does he claim there was 

error in the special verdict form.
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fault to another, Dr. Moser would be liable for the entire amount of noneconomic 

damages, if MICRA did not apply to this case.

But MICRA does apply, and it sets an absolute limit on the total amount of 

damages a plaintiff can recover from health care providers for noneconomic losses. 

Dr. Moser urges us to apply the portion of Cedars-Sinai‘s settlement with Mr. Rashidi 

which was attributable to noneconomic damages up to the MICRA maximum of 

$250,000 recovery for noneconomic damages. Under that approach, Mr. Rashidi would 

be entitled to recover only a total of $250,000. Since $233,345 from Cedars-Sinai is 

attributable to noneconomic damages, he could recover only an additional $16,655 from 

Dr. Moser for noneconomic damages. This is consistent with the way MICRA has 

phrased its damages cap: ―In no action shall the amount of damages for noneconomic 

losses exceed two hundred fifty thousand dollars ($250,000).‖ Nothing in the statute 

addresses the proportionate share each healthcare provider must pay for noneconomic 

damages. Instead, the focus is on the total amount of damages for noneconomic loss an 

injured plaintiff may recover from all defendant healthcare providers in a single action. 

This serves the purpose of MICRA: ―to reduce the cost of medical malpractice litigation,

and thereby restrain the increase in medical malpractice insurance premiums.‖ (Fein v. 

Permanente Medical Group (1985) 38 Cal.3d 137, 159 (Fein).)

Mr. Rashidi seeks to avoid this result, relying on language in Hoch v. AlliedSignal, Inc. (1994) 24 Cal.App.4th 48, 67–68 (Hoch). In Hoch, as in our case, the 

noneconomic damages paid in settlement exceeded the settling parties‘ proportionate 

share of fault. After trial, the court applied section 1431.2 and held the nonsettling 

defendant liable for the portion of noneconomic damages consistent with its percentage 

of fault; it did not offset that amount by the noneconomic damages received in settlement. 

As a result, plaintiffs‘ net recovery of noneconomic damages exceeded the amount 

awarded at trial. In allowing this, the court relied on language in Duncan v. Cessna 

Aircraft Co. (Tex. 1984) 665 S.W.2d 414, 431–432 (Duncan): ―[S]ettlement dollars are 

not the same as damages. Settlement dollars represent a contractual estimate of the value 

of the settling tortfeasor‘s liability and may be more or less than the proportionate share 
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of the plaintiff[‘]s damages. The settlement includes not only damages, but also the value 

of avoiding the risk, expense, and adverse public exposure that accompany going to trial. 

There is no conceptual inconsistency in allowing a plaintiff to recover more from a 

settlement or partial settlement than he could receive as damages.‖ Neither the Hoch

case, nor the Duncan case on which it relies, had to consider a damages cap such as that

in MICRA. 

―To the extent a specific statute is inconsistent with a general statute potentially 

covering the same subject matter, the specific statute must be read as an exception to the 

more general statute.‖ (Salazar v. Eastin (1995) 9 Cal.4th 836, 857.) While section 

1431.2 protects any joint tortfeasor from paying more than its proportionate share of 

noneconomic damages, MICRA prohibits a plaintiff from recovering more than $250,000 

for noneconomic damages from all healthcare providers in the same action. MICRA does 

not distinguish between settlement dollars and judgments; it addresses a plaintiff‘s total 

recovery for noneconomic losses. Since MICRA, with its absolute limit on the total 

recovery of noneconomic damages from health care providers, is the more specific 

statute, we read it as an exception to the more general limitation on liability in section 

1431.2. 

IV

We turn to Mr. Rashidi‘s cross appeal, in which he challenges the constitutionality 

of MICRA. 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.‖ (Ibid.) In American Bank & Trust Co. v. Community 

Hospital (1984) 36 Cal.3d 359, 368–369 (American Bank) and Fein, supra, 38 Cal.3d at 

p. 158, the Supreme Court confirmed that a plaintiff has no vested property right in a 
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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 

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 
11

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. 

(Cory v. Shierloh (1981) 29 Cal.3d 430, 439.) 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.

DISPOSITION

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

amount of $125,000 and a reduction of the noneconomic damages to $16,655. In all 

other respects, the judgment is affirmed. The parties are to bear their own costs on 

appeal.

CERTIFIED FOR PUBLICATION

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.