Filed 3/9/15 Gregory v. Abou-Samra CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX

CARLY GREGORY,

 Plaintiff and Appellant,

v.

MOUSTAPHA ABOU-SAMRA, M.D., et

al.,

 Defendants and Respondents.

2d Civil No. B253223

(Super. Ct. No. 56-2011-00405596-CUMM-VTA)

(Ventura County)

Carly Gregory appeals from a judgment awarding costs in favor of 

Moustapha Abou-Samra, M.D., and Moustapha Abou-Samra, M.D., a professional 

corporation. Appellant contends the court erred in awarding respondent expert witness 

fees pursuant to Code of Civil Procedure section 9981 because respondent's offer to 

compromise was neither reasonable nor made in good faith. We affirm.

Facts and Procedural History

In December 2009, appellant underwent surgery for a brain tumor. Dr. 

Aria Sabit was the surgeon, and respondent, Dr. Sabit's employer, acted as assistant 

surgeon. Appellant subsequently filed a complaint against Dr. Sabit, respondent, and 

Community Memorial Health Care System (CMHCS) for negligence. Dr. Sabit was 

 

1 Undesignated statutory references are to the Code of Civil Procedure.
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also sued for fraud and intentional infliction of emotional distress. The complaint was 

later amended to add a claim for punitive damages against Dr. Sabit, based on the 

allegation he intentionally misled appellant to believe her tumor had been removed.

She also alleged that respondent knew the tumor had not been removed and failed to 

provide proper follow-up treatment. 

Appellant settled with Dr. Sabit for approximately $530,000, and with 

CMHCS for $20,000. After these settlements, respondent served appellant with an 

offer to compromise pursuant to section 998. Respondent offered to waive all 

statutory costs incurred to date and all rights to sue appellant and her attorney for 

malicious prosecution, in exchange for a dismissal with prejudice in favor of 

respondent. Appellant allowed the offer to expire without acceptance.

Appellant continued to litigate the matter against respondent and both 

parties took several depositions. On the eve of trial, appellant dismissed the action 

against respondent without prejudice. Respondent filed a memorandum of costs 

seeking $12,866 in expert witness fees as the prevailing party. (§§ 998, subd. (c)(1), 

1032, subd. (a)(4).) Appellant moved to strike and tax costs on the ground that 

respondent's offer to compromise was neither reasonable nor made in good faith. 

Following a hearing, the court found respondent's section 998 offer to be 

both reasonable and in good faith. Judgment was entered in respondent's favor in the 

amount of $19,715, which includes the full $12,866 in claimed expert witness fees.

Discussion

Appellant contends the court erred in ordering her to pay respondent's 

expert witness fees because the section 998 offer to compromise was "patently 

unreasonable." She also claims the court's ruling is based on its erroneous conclusion 

that respondent was not "automatically . . . liable" for Dr. Sabit's fraudulent conduct 

under the doctrine of respondeat superior. We are not persuaded.

A section 998 offer must be made in good faith in order to be valid. 

Good faith requires that the offer be reasonable under the circumstances of the case
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and have a reasonable chance of being accepted. (Whatley-Miller v. Cooper (2013) 

212 Cal.App.4th 1103, 1112 (Whatley-Miller).) "Reasonableness generally 'is 

measured, first, by determining whether the offer represents a reasonable prediction of 

the amount of money, if any, defendant would have to pay plaintiff following a trial, 

discounted by an appropriate factor for receipt of money by plaintiff before trial, all 

premised upon information that was known or reasonably should have been known to 

the defendant,' and '[i]f an experienced attorney or judge, standing in defendant's 

shoes, would place the prediction within a range of reasonably possible results, the 

prediction is reasonable.' [Citation.]" (Ibid.) If an offer is found to be reasonable, the 

court must then determine whether "the offeree has reason to know the offer is a 

reasonable one." (Id. at p. 1113, quoting Elrod v. Oregon Cummins Diesel, Inc. (1987) 

195 Cal.App.3d 692, 699.) 

We review the court's findings as to the validity and reasonableness of 

the section 998 offer for an abuse of discretion. (Whatley-Miller, supra, 212 

Cal.App.4th at p. 1113.) There was no abuse of discretion here. Appellant failed to 

meet her burden of establishing the offer to compromise was unreasonable or not in 

good faith. Although she claimed the dismissal was not based on the merits of the 

case, the court "was not required to accept that statement at face value and could 

reasonably conclude that the dismissal represented an acknowledgment of the tenuous 

nature of appellant's claims against respondent." (Bates v. Presbyterian 

Intercommunity Hosp., Inc. (2012) 204 Cal.App.4th 210, 221-222.) The court also 

recognized that respondent's offer had substantial value to appellant because its 

acceptance would have protected her against future litigation and absolved her of 

responsibility for the very costs she now challenges. (Id. at p. 222.) 

The trial court also acted within its discretion in finding that appellant 

had reason to know respondent's offer was reasonable. Appellant received over 

$500,000 in settlement proceeds and her medical bills were paid by private insurance. 

(Civ. Code, § 333.1.) Moreover, her noneconomic damages were limited to $250,000. 
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(Civ. Code, § 333.2.) Although she claims she had reason to believe respondent could 

be found liable for Dr. Sabit's fraud under the doctrine of respondeat superior, she did 

not sue respondent under this theory or name him in the causes of action for fraud and 

intentional infliction of emotional distress.

In any event, the court did not err in determining that respondent would 

not be "automatically liable" for Dr. Sabit's fraudulent conduct. Appellant notes "that 

an employee's willful, malicious and even criminal torts may fall within the scope of 

his or her employment for the purposes of respondeat superior . . . ." (Lisa M. v. 

Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal.4th 291, 296-297, italics added.), 

But liability in this context is not a foregone conclusion. The issue can be resolved as 

a matter of law only when the relevant facts are undisputed and give rise to no 

conflicting inferences. (Id. at p. 299.) The issue is ultimately whether the employee's 

tortious conduct was foreseeable (ibid.), and appellant fails to show that Dr. Sabit's 

allegedly fraudulent conduct was foreseeable as a matter of law. The court thus did 

not abuse its discretion in concluding that the mere possibility respondent might be 

held vicariously liable for Dr. Sabit's alleged fraud was insufficient to render the offer 

to compromise unreasonable.

The judgment is affirmed. Respondent shall recover costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

CHANEY, J.*

 

* Assigned by the Chairperson of the Judicial Council.
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Rebecca Susan Riley, Judge

Superior Court County of Ventura

______________________________

Glenn J. Campbell, for Appellant. 

Benjamin F. Coats, Melanie J. Ely; Engle, Carobini & Coats, fir 

Respondents.