Filed 1/24/19 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

DIONNE LICUDINE,

Plaintiff and Appellant,

v.

CEDARS-SINAI MEDICAL CENTER

et al.,

Defendants and Respondents.

 B286350

 (Los Angeles County

 Super. Ct. No. BC499153)

 ORDER MODIFYING OPINION

 AND DENYING PETITION FOR 

REHEARING

 [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on January 3, 

2019, be modified as follows:

1. On page 12, at the top of the page in bullet point (1), after

the language “stating that her doctors’ negligence was “selfevident,” add the following:

that Dr. Gupta had “informed the family that he penetrated 

so far because [plaintiff] was ‘too skinny . . . .’” 

2. On page 13, the first full paragraph, second sentence, after 

the language “On the question of liability,” add the following:
2

Dr. Gupta may have admitted to holding the instrument 

that nicked plaintiff’s vein but . . . .

3. On page 16, the first full paragraph, first sentence, delete 

“a general” in front of “objection” and add “an” so that the text

reads “an objection . . . .” 

There is no change in the judgment.

Appellant’s petition for rehearing is denied.

____________________________________________________________

* ASHMANN-GERST, Acting P.J., CHAVEZ, J., HOFFSTADT, J.
Filed 1/3/19 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

DIONNE LICUDINE,

Plaintiff and Appellant,

v.

CEDARS-SINAI MEDICAL CENTER 

et al.,

Defendants and Respondents.

 B286350

 (Los Angeles County

 Super. Ct. No. BC499153)

APPEAL from an order of the Superior Court of Los 

Angeles County. David S. Cunningham, Judge. Affirmed.

Howard A. Kapp, Los Angeles, for Plaintiff and Appellant.

Horvitz & Levy LLP, S. Thomas Todd, and Emily V. 

Cuatto, Burbank, for Defendant and Respondent.

* * * * * *
2

A plaintiff who sues and prevails at trial is statutorily 

entitled to prejudgment interest starting from the date she 

makes a settlement offer under Code of Civil Procedure section 

998 (a so-called “998 offer”)1 as long as that offer is “valid,” and 

the subsequent verdict is “more favorable” than the rejected 998 

offer. (Civ. Code, § 3291; Elrod v. Oregon Cummins Diesel, Inc.

(1987) 195 Cal.App.3d 692, 698 (Elrod).) A 998 offer is valid only 

if, among other things, the offeror knew that the offeree had 

reasonable access to the facts necessary to “intelligently evaluate 

the offer.” (Id. at pp. 699-700; Najera v. Huerta (2011) 191 

Cal.App.4th 872, 878 (Najera).) What factors are relevant in 

deciding whether the offeree had enough facts to evaluate the 

offer? Although courts should evaluate the totality of the facts 

(Arno v. Helient Corp. (2005) 130 Cal.App.4th 1019, 1026 (Arno)), 

we conclude that three factors are especially pertinent: (1) how 

far into the litigation the 998 offer was made; (2) the information 

available to the offeree prior to the 998 offer’s expiration; and (3) 

whether the offeree let the offeror know it lacked sufficient 

information to evaluate the offer, and how the offeror responded. 

Applying these factors in this case, we conclude that the trial 

court did not abuse its discretion in finding that the plaintiff’s 

998 offer was not made in good faith. We accordingly affirm the 

order denying plaintiff prejudgment interest.

 

1 All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated.
3

FACTS AND PROCEDURAL BACKGROUND

I. Facts2

In February 2012, Dionne Licudine (plaintiff) underwent 

gallbladder removal surgery. The surgery was performed by Dr. 

Ankur Gupta under the supervision of Dr. Brenden Carroll at 

defendant Cedars-Sinai Medical Center (Cedars). The surgery 

was intended to be minimally invasive, but Dr. Gupta nicked a 

vein inside the abdominal cavity and caused substantial internal 

bleeding. This necessitated a more invasive surgery that left 

plaintiff with a large scar, a month-long hospitalization and a 

chronic abdominal condition. 

II. Procedural Background

A. Complaint

On January 15, 2013, plaintiff filed a medical malpractice 

lawsuit against Cedars, Dr. Gupta, Dr. Carroll and the Regents of 

the University of California (collectively, defendants). The 

complaint was three pages long. With respect to liability, 

plaintiff alleged that the defendants’ provision of medical services 

was “below the standard of care.” With respect to damages, 

plaintiff alleged only that she (1) had suffered “personal injuries 

and related emotional distress,” (2) had incurred “medical, 

nursing, health care, hospital and medical expenses,” (3) had 

suffered a “loss of wages, profits, and earning capacity,” and (4) 

incurred “other damages and injuries to be proven but which at 

this time are unknown.” She prayed “for damages within the 

jurisdiction of the Court.” 

 

2 We draw these facts largely from our prior published 

opinion in Licudine v. Cedars-Sinai Medical Center (2016) 3 

Cal.App.5th 881 (Licudine I).
4

It was not until May 23, 2013 that plaintiff served her 

complaint on Cedars. Cedars filed its answer on June 6, 2013, 

along with a demand for written discovery and for a statement of 

damages. 

B. Section 998 offer

On June 11, 2013, plaintiff mailed Cedars an “Offer to 

Compromise” pursuant to section 998. Specifically, she “offer[ed] 

to allow judgment to be taken against Cedars and in favor of the 

plaintiff in the amount of $249,999.99, plus legal costs.” 

On June 27, 2013, Cedars sent plaintiff a written 

“Objection” to the 998 offer. In its objection, Cedars noted that 

plaintiff made her 998 offer only five days after Cedars had filed 

its answer. As Cedars explained, this was “too soon for it to make 

any determination as to whether plaintiff’s [998 offer] was 

reasonable” because Cedars had “not had an opportunity to fully 

investigate this action.” 

The offer expired on July 16, 2013. (§§ 998, subd. (b)(2) 

[offer expires 30 days after it is made], 1013, subd. (a) [five 

additional days added for mailed offers].) Cedars did not accept 

the offer prior to its expiration.

C. First trial and appeal

The matter proceeded to trial. A jury found Cedars liable 

for malpractice and awarded plaintiff $1,045,000 in damages. 

Both Cedars and plaintiff moved for a new trial on damages, and 

the trial court granted both motions and set the matter for a new 

damages trial. We affirmed the trial court’s orders. (Licudine I, 

supra, 3 Cal.App.5th 881.)

D. Damages retrial

A jury returned a total damages award of $7,619,457,

comprised of $5,344,557 in economic damages and $2,274,900 in 
5

noneconomic damages.3 Pursuant to the statutory cap on 

noneconomic damages applicable in medical malpractice cases 

(Civ. Code, § 3333.2), the trial court reduced the noneconomic 

damages verdict to $250,000, yielding a total verdict of 

$5,594,557. 

E. Request for prejudgment interest

Plaintiff filed a memorandum of costs seeking, among other 

things, $2,335,929.20 in prejudgment interest from the date of 

her 998 offer to the date of judgment.4 Cedars filed a motion to 

strike plaintiff’s prejudgment interest request, arguing that her 

998 offer was “invalid” because it was “made so early in the 

proceedings that [Cedars] did not have a fair opportunity to 

intelligently evaluate it.” Following full briefing, the court held a 

hearing. Toward the end of the hearing, plaintiff sought to 

supplement her briefing, but the trial court denied her request. 

After further argument, the court struck plaintiff’s request for 

prejudgment interest. In so ruling, the court found that 

plaintiff’s 998 offer had been “premature” because Cedars had not 

“ha[d] an adequate opportunity to evaluate the damages in this 

case at the time of the 998 offer.” 

F. Appeal

Plaintiff filed this timely appeal. 

 

3 While the trial court miscalculated the total unreduced

damages award as $7,619,257, this miscalculation is of no 

consequence. The court correctly calculated the total reduced 

damages award.

4 The parties do not dispute plaintiff’s calculation of the 

amount of prejudgment interest. 
6

DISCUSSION

If a plaintiff makes an offer to settle a lawsuit pursuant to 

section 998 that the defendant does not accept, and if the plaintiff 

ultimately obtains a “more favorable judgment,” she is entitled to 

have the defendant pay (1) the costs of her expert witnesses 

incurred after the 998 offer was made (§ 998, subds. (b) & (d)), 

and (2) prejudgment interest at the rate of 10 percent starting 

from the date of the 998 offer (Civ. Code, § 3291; Wilson v. WalMart Stores, Inc. (1999) 72 Cal.App.4th 382, 392-393). However, 

a plaintiff is entitled to this additional recovery only if her 998 

offer is “valid.” (Barella v. Exchange Bank (2000) 84 Cal.App.4th 

793, 799 (Barella); Chen v. Interinsurance Exchange of the 

Automobile Club (2008) 164 Cal.App.4th 117, 121.) Plaintiff 

argues that the trial court erred in ruling that her 998 offer was 

not valid. Where, as here, the underlying facts are disputed, we 

review the trial court’s ruling solely for an abuse of discretion. 

(Timed Out LLC v. 13359 Corp. (2018) 21 Cal.App.5th 933, 942 

(Timed Out).) As the appellant, plaintiff bears the burden of 

proving that the trial court abused its discretion. (Najera, supra, 

191 Cal.App.4th at p. 877.)

I. The Pertinent Law on the Validity of 998 Offers

A 998 offer is valid only if it is made in “good faith.” (Elrod, 

supra, 195 Cal.App.3d at p. 698; Wear v. Calderon (1981) 121 

Cal.App.3d 818, 821 (Wear); Regency Outdoor Advertising, Inc. v. 

City of Los Angeles (2006) 39 Cal.4th 507, 531 (Regency) 

[assuming “good faith” is required].) A 998 offer is made in good 

faith only if the offer is “‘realistically reasonable under the 

circumstances of the particular case’” (Elrod, at p. 698, quoting 

Wear, at p. 821)—that is, if the offer “carr[ies] with it some 

reasonable prospect of acceptance” (Regency, at p. 531). 
7

Although section 998’s text does not itself condition validity 

upon an offeror’s good faith, such a requirement is necessarily 

implied by the statute’s purpose: Section 998 is meant “to 

encourage the settlement of lawsuits prior to trial” (T.M. Cobb v. 

Superior Court (1984) 36 Cal.3d 273, 280; Poster v. Southern 

California Rapid Transit Dist. (1990) 52 Cal.3d 266, 270), and it 

uses the proverbial “stick” to do so: “Accept this offer or you will 

face additional financial consequences for rejecting it.” (Elrod,

supra, 195 Cal.App.3d at p. 699 [“Section 998 achieves its aim by 

punishing a party who fails to accept a reasonable offer from the 

other party”].) If a section 998 offer has no “reasonable prospect 

of acceptance,” an offeree will reject the offer no matter what and 

applying section 998’s punitive “stick” will do nothing to 

encourage settlement. (Elrod, at p. 699.) Applying the “stick” in 

such instances would instead encourage litigants to “game the 

system by making . . . offers they can reasonably expect the 

[offeree] will refuse,” allowing them “to benefit from a no-risk 

offer made for the sole purpose of later recovering large expert 

witness fees” and, if they are plaintiffs, prejudgment interest. 

(Vick v. DaCorsi (2003) 110 Cal.App.4th 206, 211; Jones v. 

Dumrichob (1998) 63 Cal.App.4th 1258, 1262-1263; Elrod, at p. 

699.) The good faith requirement prevents this perversion of 

section 998. (Menees v. Andrews (2004) 122 Cal.App.4th 1540, 

1544 [“The courts have uniformly rejected an interpretation of 

section 998 which would allow offering parties to . . . ‘game the 

system.’”]; Westamerica Bank v. MBG Industries, Inc. (2007) 158 

Cal.App.4th 109, 129 [same].)

Whether a section 998 offer has a reasonable prospect of 

acceptance is a function of two considerations, both to be 

evaluated in light of the circumstances “at the time of the offer” 
8

and “not by virtue of hindsight.” (Burch v. Children’s Hospital of 

Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 

548; Fortman v. Hemco (1989) 211 Cal.App.3d 241, 264; Elrod, 

supra, 195 Cal.App.3d at p. 699.) First, was the 998 offer within 

the “range of reasonably possible results” at trial, considering all 

of the information the offeror knew or reasonably should have 

known? (Elrod, at pp. 699-700.) Second, did the offeror know 

that the offeree had sufficient information, based on what the 

offeree knew or reasonably should have known, to assess whether 

the “offer [was] a reasonable one,” such that the offeree had a 

“fair opportunity to intelligently evaluate the offer”? (Id. at p. 

699; Najera, supra, 191 Cal.App.4th at p. 878.) These two 

considerations assess whether the offeror knew that the 998 offer 

was reasonable, first, from the offeror’s perspective and, second, 

from the offeree’s perspective. In light of this focus on the 

reasonableness of the offeror’s conduct in making the 998 offer 

(which makes sense because the issue is the validity of the offer 

in the first place), whether the offeree acted reasonably in 

rejecting that offer is irrelevant. (Arno, supra, 130 Cal.App.4th at 

p. 1027; People ex rel. Lockyer v. Freemont General Corp., Inc.

(2001) 89 Cal.App.4th 1260, 1270-1271.)

In assessing whether the 998 offeror knew that the offeree 

had sufficient information to evaluate the offer (the second 

consideration), the offeree needs information bearing on the issue 

of liability as well as on the amount of damages because these are 

the issues upon which a verdict would rest and because the 998 

offer, if accepted, would be in lieu of that verdict. (Nelson v. 

Anderson (1999) 72 Cal.App.4th 111, 135 (Nelson) [liability 

relevant]; Barba v. Perez (2008) 166 Cal.App.4th 444, 450-451 

(Barba) [damages relevant]; see generally Aynes v. Winans (1948) 
9

33 Cal.2d 206, 211 (dis. opn. of Carter, J.) [“The essential issues

for the jury [are] liability and amount of damages . . .”].) In 

assessing the information available to the offeree, courts are to 

look to all of the relevant circumstances. (Arno, supra, 130 

Cal.App.4th at p. 1026.) The pertinent cases have nevertheless 

identified a number of specific circumstances to be examined. 

First, how far into the litigation was the 998 offer made? 

Although section 998 fixes no “minimum period that must elapse 

following commencement of suit for service of a valid 998 offer” 

(Barba, supra, 166 Cal.App.4th at p. 452),5 a litigant receiving a 

998 offer at the time a lawsuit is filed or soon thereafter is, as a 

general matter, less likely to have sufficient information upon 

which to evaluate that offer. (E.g., Najera, supra, 191 

Cal.App.4th at p. 875 [receiving offer at same time complaint is 

served]; cf. Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 

1113 (Whatley-Miller) [receiving offer two months after complaint 

was served].)

Second, what information bearing on the reasonableness of 

the 998 offer was available to the offeree prior to the offer’s 

expiration? Information may be obtained (1) by virtue of prior 

litigation between the parties (Bender v. City of Los Angeles

(2013) 217 Cal.App.4th 968, 989 [civil lawsuit against police 

followed criminal prosecution of plaintiff resulting in acquittal]); 

(2) through pre-litigation exchanges between the parties (Barba,

supra, 166 Cal.App.4th at pp. 450-451 [pre-litigation letter 

 

5 For this reason, we decline Cedars’s invitation to erect 

either a rule or a presumption that any 998 offer in a malpractice 

lawsuit is invalid if not served at least 90 days after a prelitigation demand pursuant to section 364 or, absent such a 

demand, at least 90 days after the complaint was served.
10

explaining offeror’s medical expenses]; Aguilar v. Gostischef

(2013) 220 Cal.App.4th 475, 482 [same]); (3) through postcomplaint discovery in the case (Whatley-Miller, supra, 212 

Cal.App.4th at p. 1113); or (4) by virtue of a pre-existing 

relationship between the parties that yields a “free flow of 

information” (Barba, supra, 166 Cal.App.4th at p. 450 [parties 

had “close, semi-familial relationship”]).

Third, did the party receiving the 998 offer alert the offeror 

that it lacked sufficient information to evaluate the offer and, if 

so, how did the offeror respond? An offeree may alert the offeror 

by (1) requesting discovery, either formally or informally (Barba, 

supra, 166 Cal.App.4th at pp. 450-451); (2) asking for an 

extension of the 998 offer’s deadline (cf. Whatley-Miller, supra, 

212 Cal.App.4th at p. 1107, 1114); or (3) otherwise objecting to 

the offer (Najera, supra, 191 Cal.App.4th at p. 875). If, after 

hearing the offeree’s concerns, the offeror’s response is less than 

forthcoming, “such obstinacy” is “potent evidence that [the] offer 

was neither reasonable nor made in good faith.” (Barba, supra, 

166 Cal.App.4th at p. 451; Najera, supra, 191 Cal.App.4th at p. 

878.)

Although the party making a 998 offer generally has the 

burden of showing that her offer is valid (Timed Out, supra, 21 

Cal.App.5th at p. 942; Barella, supra, 84 Cal.App.4th at p. 799), 

it is the 998 offeree who bears the burden of showing that an 

otherwise valid 998 offer was not made in good faith. (Elrod, 

supra, 84 Cal.App.4th at p. 700; Nelson v. Anderson (1999) 72 

Cal.App.4th 111, 134 (Nelson).)
11

II. The Trial Court Did Not Abuse Its Discretion In 

Finding That Plaintiff’s 998 Offer Was Not Made In Good 

Faith

A. Application of pertinent factors

Plaintiff’s 998 offer to settle for $249,999.99 was 

undoubtedly within the “range of reasonably possible results” at 

trial. The jury’s $5,594,557 verdict constitutes prima facie 

evidence of such (Elrod, supra, 195 Cal.App.3d at p. 700), and 

Cedars has offered no evidence to the contrary. 

Consequently, and as the trial court properly recognized, 

whether plaintiff’s 998 offer in this case was made in good faith 

turns entirely on the second consideration bearing on good 

faith—that is, on whether Cedars had sufficient information to 

assess whether plaintiff’s $249,999.99 offer was a reasonable one. 

The trial court did not abuse its discretion in concluding that 

Cedars lacked sufficient information. Each of the factors 

identified in the case law support the trial court’s determination.

As to timing, plaintiff made her 998 offer just 19 days after 

serving Cedars with her complaint and just five days after 

Cedars filed its answer.

As to the availability of information, Cedars had very little 

information available to it on the issues of liability and the 

amount of damages prior to the date plaintiff’s 998 offer expired. 

Plaintiff’s three-page complaint was “bare bones,” as it listed no 

specifics as to the injuries she suffered or the amount of damages 

she sought. Nor was this skeletal complaint fleshed out by the 

pre-litigation notice required by section 364, which would have 

set forth the “legal basis of [her] claim and the type of loss 

sustained, including [the] specific . . . nature of injuries suffered” 

(§ 364, subds. (a) & (b)), because plaintiff never filed such a 
12

notice.6 No depositions had been taken. But Cedars was not 

entirely bereft of information. Plaintiff had sent Cedars a letter 

the day before she made her 998 offer (1) stating that her doctors’ 

negligence was “self-evident” and that her “injuries are well 

documented and far exceed the” $250,000 cap on noneconomic 

damages, and (2) attaching photographs of plaintiff before and 

after the surgery. Plaintiff also provided some written discovery 

to Cedars prior to her offer’s expiration—namely, (1) she 

forwarded to Cedars her answers to the general interrogatories 

propounded by Dr. Carroll, but submitted to the trial court only 

the cover sheet for those answers and not the answers 

themselves, and (2) she responded to Cedars’s request for 

documents on the day before her 998 offer expired. Those 

responses contained no details on the issues of liability and the 

amount of damages except (1) to indicate that plaintiff was not 

making a claim for “lost earnings” and that plaintiff’s “earning 

capacity may be affected as [she] has had to delay starting law 

school for at least two years,” (2) to tell Cedars to contact 

plaintiff’s insurance carrier to obtain her medical bills, and (3) to 

tell Cedars to look at its own records. And Cedars also had in its 

possession plaintiff’s 9,662-page medical chart, which included (1) 

the operation report noting the nicked vein and internal bleeding, 

and (2) the records indicating her extended stay and care at the 

hospital. 

The trial court did not abuse its discretion in concluding 

that this information, considered in its totality, did not provide 

Cedars with sufficient information with which to evaluate the 

 

6 What is more, plaintiff’s attorney misrepresented to the 

trial court in a sworn affidavit that he had filed a section 364 

notice after certifying to Cedars that he had not.
13

reasonableness of plaintiff’s section 998 offer. On the question of 

liability, this information did not indicate which doctor (Dr. 

Gupta or Dr. Carroll) was responsible for any negligence or the 

extent to which plaintiff’s injuries were related to or exacerbated 

by any pre-existing medical conditions she might have. On the 

question of the amount of damages, this information did not 

speak at all to plaintiff’s pain and suffering, to the amount of her 

medical expenses (including any offset due to insurance), or to 

any possible loss in her earning capacity. Indeed, plaintiff’s 

response to Cedars’s request for documents indicated she was 

unsure whether she would suffer any loss of earning capacity.

As to providing notice of the lack of sufficient information 

and any response to that notice, Cedars alerted plaintiff to its 

concern that it was “too soon for it to make any determination as 

to whether” her 998 offer was reasonable, and plaintiff never 

responded. 

Plaintiff responds that Cedars had sufficient information to 

evaluate her section 998 offer. 

As a threshold matter, she argues that any absence of 

information regarding her economic damages is of no consequence 

because her 998 offer was an offer only to settle the noneconomic

damages portion of her case for $249,999.99, which is just below 

the statutory cap for noneconomic damages in medical 

malpractice cases. We reject this argument because it 

contradicts the plain language of the 998 offer itself, which offers 

to “allow judgment to be taken against [Cedars] . . . in the 

amount of $249,999.99” without any hint that the offer would 

settle only part of the case. Even if we were to accept plaintiff’s 

invitation to retroactively rewrite her 998 offer, Cedars still 

lacked sufficient information to make an intelligent 
14

determination as to a reasonable amount of noneconomic 

damages for the reasons described above. What is more, 

plaintiff’s conduct in making an offer as to noneconomic damages 

that, in her counsel’s own words, was “one penny below” the 

statutory cap for such damages mere weeks after serving Cedars 

raises more than a specter of gamesmanship, which, as noted 

above, is antithetical to the legitimate operation of section 998. 

Even if we reject her retroactively narrowed reading of her 

998 offer, plaintiff continues, Cedars still had enough information 

to evaluate a global settlement offer because (1) Cedars had 

access to her 9,662-page medical chart, (2) Cedars conducted a 

peer review of the operation that provided greater information, 

(3) Cedars had the answers to Dr. Carroll’s form interrogatories, 

and (4) any shortfall of information regarding damages could not 

in any event invalidate her 998 offer because Cedars’s objection 

never used the word “damages.” 

However, none of these sources provided Cedars with 

sufficient information to evaluate plaintiff’s offer. 

Plaintiff’s medical chart, as noted above, supplied some 

information regarding liability. But it left several issues 

unaddressed, including plaintiff’s loss of earning capacity and her 

pain and suffering. 

Plaintiff provided no evidence that Cedars ever conducted a 

peer review regarding the operation. All she offers is her 

counsel’s assertion that “of course” Cedars did.7

We cannot evaluate whether plaintiff’s answers to Dr. 

Carroll’s form interrogatories provided Cedars with sufficient 

 

7 Thus, the parties’ debate regarding the applicability of 

Evidence Code section 1157, the evidentiary privilege applicable 

to such peer reviews, is irrelevant. 
15

information because those answers were never made part of the 

record in this case. Plaintiff asserts that she tried to make them 

a part of the record and that the trial court was wrong to deny 

her request to supplement her briefing with the interrogatory 

answers. Plaintiff’s request to supplement was, in effect, a 

motion to amend her pleading; as such, it was governed by 

section 473, subdivision (b). (Garcia v. Hejmadi (1997) 58 

Cal.App.4th 674, 683-684 [request to supplement pleading so 

governed]; Puppo v. Larosa (1924) 194 Cal. 721, 724 [same, as to 

motion to tax costs].) The discretionary relief portion of this 

statute applicable here only permits a trial court to allow an 

amendment necessitated by an attorney’s mistake or 

inadvertence if it is an error that “‘anyone could have made’”; put 

differently, errors due to an attorney’s failure to “meet the 

professional standard of care, such as failure . . . to properly 

advance an argument” provide no basis to amend. (Zamora v. 

Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) In 

this case, plaintiff’s attorney told the trial court that he “didn’t 

see [the actual discovery responses forwarded to Cedars] as 

necessary,” and this statement confirms that the attorney’s 

decision to include the cover letter accompanying the responses 

but to omit the responses themselves was strategic and tactical 

rather than a mistake any layperson could have made. 

Plaintiff’s criticism of Cedars’s objection lacks merit 

because the plain language of that document registered a general 

objection to the timing of plaintiff’s 998 offer that applied with 

equal force to the issues of liability and to the amount of 

damages. Cedars’s purported failure to use the words “liability” 

or “damages” did not somehow narrow the scope of its otherwise 

inclusive objection.
16

B. Plaintiff’s further arguments

Plaintiff makes what boils down to three further categories 

of arguments for reversal.

She contends that Cedars effectively waived any right to 

object to the lack of information because it never asked her to 

extend the deadline of her section 998 offer. We reject this 

contention. Although a request for a continuance is one method 

by which a section 998 offeree may put the offeror on notice that 

it lacks sufficient information to evaluate the offer, it is not the 

only method of doing so; Cedars’s objection sufficed.

She asserts that the trial court erred in refusing to consider

evidence that (1) Cedars’s attorney had a practice of making 

“boilerplate prematur[ity] claim[s]” to section 998 offers in other 

cases, and (2) Cedars would have rejected plaintiff’s 998 offer 

even if Cedars had possessed sufficient information to evaluate it. 

We reject each assertion. Cedars’s position regarding the timing 

of section 998 offers in other cases (and, relatedly, whether 

plaintiff was electing to disregard Cedars’s objection in this case 

in light of its position in the other cases) is neither here nor there 

because whether a party’s 998 offer is made in good faith turns 

on the particular circumstances of each case. (Arno, supra, 130 

Cal.App.4th at p. 1024.) Further, what Cedars might or might 

not have done had plaintiff’s offer been valid does not affect 

whether the offer was valid in the first place; here, it was not.

And plaintiff posits that the trial court impermissibly 

required her to prove her good faith rather than requiring Cedars 

to prove its absence. As noted above, the law squarely places the 

burden on Cedars. (E.g., Elrod, supra, 84 Cal.App.4th at p. 700.) 

However, plaintiff’s position that the trial court shifted that 

burden is not supported by the record. At no point did the trial 
17

court indicate that the burden rested with plaintiff, and the 

questions the court posed to plaintiff during the hearing sought 

plaintiff’s input on how to refute the points Cedars had already 

made in support of its motion. 

DISPOSITION

The order striking plaintiff’s request for prejudgment 

interest is affirmed. Cedars is entitled to its costs on appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ