NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

YEGAN, J.

In this medical malpractice action, Pamela Stackpole Azizad appeals from a postjudgment order denying her motions to tax expert witness costs claimed by respondents, Dr. Jeffrey Feinfield and Dr. Ean Kleiger. Respondents maintain that they are entitled to these costs because appellant did not accept their pretrial offers to compromise pursuant to Code of Civil Procedure section 998 (section 998).

Appellant contends that Kleiger is not entitled to expert witness costs because his offer to compromise did not include a provision on acceptance of the offer as required by section 998. We agree and reverse the trial court's order denying appellant's motion to tax expert witness costs claimed by Kleiger. We need not reach the additional contention that Kleiger's section 998 offer was not made in good faith.

As to Feinfield, we conclude that the trial court properly ruled that his 998 offer was made in good faith and that the trial court did not abuse its discretion in determining that the expert fees claimed by Feinfield were reasonable. Thus, we affirm the trial court's order denying appellant's motion to tax Feinfield's expert witness costs.

Factual and Procedural Background

Feinfield is an otolaryngologist (ears, nose and throat specialist) and Kleiger is a dentist. In September 2008 appellant filed a malpractice action against respondents. The complaint alleged that respondents had been negligent in failing to diagnose a malignant lesion on appellant's tongue. Their failure to diagnose the malignancy had allegedly caused appellant to suffer severe injuries.

Respondents made section 998 offers to compromise in exchange for a waiver of costs. As required by section 998, Feinfield's offer included "a provision that allow[ed] the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted." (Id., subd. (b).) Kleiger's offer, on the other hand, omitted this provision and mentioned nothing about the manner of acceptance. Both offers expired without acceptance by appellant.

Following a jury trial, special verdicts were rendered. The jury unanimously found that Kleiger had been negligent in his medical care and treatment of appellant. But it also unanimously found that his negligence had not been a proximate cause of injury to appellant. By a vote of 10 to 2, the jury found that Feinfield had not been negligent. Accordingly, judgment was entered in favor of respondents.

Respondents filed memorandums of costs. Among other costs, Kleiger sought expert witness fees of $47,425. Feinfield sought expert witness fees of $16,512.50.

Appellant filed motions to tax costs. Appellant challenged Kleiger's expert witness fees "in [their] entirety" on the grounds that Kleiger's section 998 offer "was not reasonable and was not made in good faith and the amount of the fees charged by these experts is excessive and unreasonable." Appellant challenged Feinfield's expert witness fees on similar grounds. Appellant did not raise the issue of Kleiger's failure to comply with the section 998 requirement that an offer to compromise include an acceptance provision.

The trial court denied appellant's motions to tax expert witness costs.

Section 998

Section 998 subdivision (b) provides that "any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time." (§ 998, subd. (b).) "If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff . . . shall pay the defendant's costs from the time of the offer." (Id., subd. (c)(1).) The defendant's recoverable costs include "a reasonable sum to cover costs of the services of expert witnesses . . . actually incurred and reasonably necessary in either, or both, preparation for trial . . . or during trial . . ., of the case by the defendant." (Ibid.)

Until 2006, section 998 mentioned nothing about acceptance of an offer to compromise. In 2005 section 998, subdivision (b) was amended to provide: "The written offer shall include . . . a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted." (Stats.2005, ch. 706, § 13.)

Kleiger's Offer Was Invalid Because It Failed to Comply with Section 998

Kleiger's offer to compromise did not include the acceptance provision required by the 2005 amendment of section 998. As to the consequences of this omission, Puerta v. Torres (2011) 195 Cal.App.4th 1267, is directly on point. There, the court held that the omission renders the offer invalid "under the plain language of the statute, regardless of whether [the party receiving the offer] ever intended to accept the offer or not." (Id., at p. 1273.)

There is no reason to depart from the Puerta court's holding. Our Supreme Court has recognized that "[t]he legislative purpose of section 998 is better served by [a] bright line rule" that avoids the introduction of "undesirable uncertainty into the section 998 procedure." (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 272; see also Menees v. Andrews (2004) 122 Cal.App.4th 1540, 1546 ["the application of `bright line rules' in determining the validity and enforceability of section 998 offers serves the interests the statute is designed to promote—that is, settlement of disputes"]; Guzman v. Visalia Community Bank (1999) 71 Cal.App.4th 1370, 1377 ["both the policy of encouraging settlement and the desirability of maintaining certainty in the 998 procedure" are "better served by a `bright line rule'"].)

"While there is room for interpretation as to how an appropriate statement regarding acceptance might be phrased in the offer, it is clear from the statute's language that at least some indication of how to accept is required by the amendment." (Puerta v. Torres, supra, 195 Cal.App.4th at p. 1273.) Kleiger's offer contained no indication of how it could be accepted. Kleiger's offer, therefore, was invalid for the purpose of rendering appellant liable for expert witness costs under section 998.

Kleiger contends that appellant waived the acceptance issue because she failed to raise it in the trial court. We disagree. The Puerta opinion was filed on May 25, 2011, more than two months after the trial court had ruled that Kleiger was entitled to recover his expert witness costs. The Puerta court noted: "Whether an offer without such a provision [on the manner of acceptance] is valid is apparently an issue of first impression in the published case law." (Puerta v. Torres, supra, 195 Cal.App.4th at p. 1269.) "Where, as here, there is an intervening clarification of the law between the ruling challenged and its resolution on appeal and the facts with respect to the contention appear to be undisputed, an appellate court may reach the contention on its merits [even though the theory is raised for the first time on appeal]. [Citations.]" (Hattersley v. American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 402.) Here, the 998 offer was made after the amendment to the statute but was not compliant therewith. The consequences of this lack of compliance were clarified in the Puerta case. We should not rule that there was a waiver, i.e, a voluntary relinquishment of a known right, i.e. "Puerta" right, before it came into existence.

In any event, we may consider the acceptance issue pursuant to the rule "that a litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts." (Hale v. Morgan (1978) 22 Cal.3d 388, 394; see also Seeley v. Seymour (1987) 190 Cal.App.3d 844, 856 [appellants permitted to "raise argument for the first time on appeal" because it "requires only the interpretation of a document and the application of such interpretation to an undisputed factual situation"].)

Trial Court's Determination that Feinfield Made a Good Faith Offer

A prevailing party who has made a valid section 998 offer may recover expert witness costs "`so long as the offer was reasonable and made in good faith. [Citation.]' [Citation.]" (Najera v. Huerta (2011) 191 Cal.App.4th 872, 877.) "Where, as here, the offeror obtains a judgment more favorable than its offer, the judgment constitutes prima facie evidence showing the offer was reasonable and the offeror is eligible for costs as specified in section 998. The burden is therefore properly on plaintiff, as offeree, to prove otherwise." (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 117.)

"An important factor in deciding whether a section 998 offer is unreasonable or in bad faith is whether the offeree was given a fair opportunity to intelligently evaluate the offer. . . . `[T]he section 998 mechanism works only where the offeree has reason to know the offer is a reasonable one. If the offeree has no reason to know the offer is reasonable, then the offeree cannot be expected to accept the offer.' [Citation.]" (Najera v. Huerta, supra, 191 Cal.App.4th at p. 878.) "`The reasonableness of [section 998] offers must be made in light of the circumstances existing at the time of the offer [citation] and not by virtue of hindsight.' [Citation.]" (Burch v. Children's Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 548.)

"`Whether a section 998 offer was reasonable and made in good faith is a matter left to the sound discretion of the trial court, and will not be reversed on appeal except for a clear abuse of discretion.' [Citation.]" (Najera v. Huerta, supra, 191 Cal.App.4th at p. 877.) The burden is on appellant to show that the court exercised its discretion "in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (Ibid.)

Appellant contends that the trial court abused its discretion because it failed to expressly determine whether "the information known, or knowable, to Appellant . . . [gave] her reason to believe the Offer[] for waiver[] of cost[s] [was] reasonable." But neither section 998 nor the case law requires such an express determination. Since there is no evidence to the contrary, we conclude that the trial court impliedly resolved this issue against appellant pursuant to "the usual presumption that official duty has been regularly performed. (Evid.Code, § 664.)" (People v. Frye (1994) 21 Cal.App.4th 1483, 1486; see also Ross v. Superior Court (1977) 19 Cal.3d 899, 913 ["scores of appellate decisions, relying on this provision [Evid.Code, § 664], have held that `in the absence of any contrary evidence, we are entitled to presume that the trial court . . . properly followed established law'"]; Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451 ["we . . . presume the [trial] court considered every pertinent argument and resolved each one consistently with its minute order denying the preliminary injunction"].)

Appellant maintains that Feinfield's offer was not made in good faith because "the information known, or capable of being known, to her at the time of the Offer, rendered the Offer for Waiver of Costs unreasonable. Appellant argues that depositions taken before the offer contained no evidence "to blunt the strength of Appellant's case against Respondent Feinfield let alone to put Appellant on notice that her case was in peril and an Offer for Waiver of Costs was reasonable . . . ."

Appellant overlooks Dr. Carlton Lee's 12-page declaration in support of Feinfield's motion for summary judgment. The motion and supporting declaration were filed on January 28, 2010, five days before Feinfield's section 998 offer. Dr. Lee, an otolaryngologist, opined that Feinfield had complied with the applicable standard of care and that his treatment of appellant had not caused or contributed to her injuries. Since appellant was aware of Dr. Lee's declaration when she was considering Feinfield's offer, she has not met her burden of showing that the trial court exercised its discretion "in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (Najera v. Huerta, supra, 191 Cal.App.4th at p. 877.)

Appellant argues that Feinfield's "withdrawal of his Motion for Summary Judgment, within days of receiving Appellant's Opposition[,] was a concession that Appellant had substantial evidence in support of her case . . . ." At most, the withdrawal was an implied concession that Feinfield could not carry his "burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, fn. omitted.) Such an implied concession has no bearing on whether appellant had reason to know that Feinfield's section 998 offer was reasonable. Moreover, the motion for summary judgment was withdrawn in April 2010 after the offer had expired. Feinfield's withdrawal of the motion, therefore, could not have influenced appellant's decision to reject the section 998 offer.

Whether Feinfield's Expert Witness Fees Were Unreasonable

Feinfield's expert witness fees were as follows: Dr. Carlton Lee — 33 hours, for a total of $13,650; Dr. Ellie Maghami — 2.73 hours, for a total of $1,362.50; Dr. Lad E. Rubaum — 2 hours, for a total of $1,500. Appellant contends that the fees for Drs. Lee and Maghami were unreasonable. As to Dr. Lee, appellant complains that (1) Dr. Lee's invoice claiming nine hours for "[r]eview of records" does not specify what records were reviewed or explain why the review was necessary; (2) Dr. Lee billed for "re-reviewing depositions which were previously reviewed and billed for separately"; (3) Dr. Lee billed "for reviewing the deposition testimony of physicians outside his specialty [otolaryngology]"; and (4) Dr. Lee's "billing invoices reflect numerous examples of block-billed hours of time for various tasks, which render it impossible to determine if such time was reasonable and necessary to his preparation." As to Dr. Maghami, appellant complains that (1) Feinfield "withdrew Dr. Maghami as an expert shortly after designating her and before her deposition was even scheduled"; and (2) "[a]side from submitting [Dr. Maghami's] billing statement, [Feinfield] produced no evidence to suggest her work was reasonable or necessary to the conduct of the litigation."

The determination of an expert fees award is within the sound discretion of the trial court. "`The appellate court should interfere [with the trial court's determination] only if it finds that, under all the evidence viewed most favorably in support of the trial court's decision, no judge could reasonably have made the challenged order.' [Citation.]" (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 303; accord, Michelson v. Camp (1999) 72 Cal.App.4th 955, 976.) Feinfield's verified memorandum of costs constituted prima facie evidence that the claimed expert fees were reasonable, and the burden was on appellant to demonstrate otherwise. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

In contending that the fees of Drs. Lee and Maghami were unreasonable, appellant makes her points in a perfunctory manner without meaningful argument or citation to authority. This is insufficient to establish an abuse of discretion. Moreover, Feinfield's trial counsel, Bradley C. Clark, submitted a declaration in which he listed the medical records and depositions reviewed by Drs. Lee and Maghami. According to Clark, the material reviewed by Dr. Lee "totals at least 1,770 pages." The sheer volume of this material supports the reasonableness of Dr. Lee's fees. In addition, Feinfield's withdrawal of Dr. Maghami as an expert witness does not preclude the recovery of her fees. (See Michelson v. Camp (1999) 72 Cal.App.4th 955, 974-975 [expert fees recoverable under section 998 "where the expert witness was designated and apparently consulted with defense counsel but was never deposed or called to testify in court"].)

We reject appellant's allegation that "[t]he trial court abused its discretion in finding Respondent Feinfield's expert fees to be reasonable and necessary to the litigation because the court failed to examine each cost, instead simply basing [its] decision on the total amount sought . . . ." This allegation is unsupported by argument or citation to relevant authority. The cases cited by appellant — Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548, and Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1380 — are inapposite. (AOB 14) Neither case held that the record must affirmatively show that the trial court examined each cost item. The Thon court noted: "Plaintiffs correctly state trial courts have a duty to determine whether a cost is reasonable in need and amount. However, absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty. [Citation.]" (Thon v. Thompson, supra, 29 Cal.App.4th at pp. 1548-1549.) Appellant has not referred us to any explicit statement by the trial court showing that it failed to properly exercise its legal duty in ruling on the motion to tax costs.

We therefore decline to interfere in the trial court's exercise of discretion. "The trial court was in a far better position, having heard the entire case and observed the demeanor of witnesses, to exercise this discretion and determine what was a reasonable amount [to cover the cost of expert witnesses] and what was reasonably necessary." (Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 315.) In its order denying appellant's motion to tax expert witness costs, the trial court stated: "It is the court's experience . . . that the hourly rates charged by the medi[c]al experts as well as the preparation time for review of documents is within normal limits in a medical negligence case." "The court was entitled to exercise its discretion in awarding expert fees, based on the evidence at trial and in light of the court's `own background, experience and knowledge regarding reasonable and necessary litigation expenses . . . .' We find no abuse of discretion on this record." (People ex rel. Dept. of Transportation v. Yuki (1995) 31 Cal.App.4th 1754, 1776.)

Disposition

As to Feinfield, the order denying appellant's motion to tax expert witness costs is affirmed. As to Kleiger, the order denying appellant's motion to tax expert witness costs is reversed. The trial court is directed to enter a new order disallowing Kleiger's expert witness costs in their entirety. Feinfield shall recover his costs on appeal. Appellant shall recover her costs on appeal as to Kleiger.

GILBERT, P.J. and PERREN, J., concurs.