Ramirez v. Barajas CA4/2

Filed 9/13/21 Ramirez v. Barajas CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

FRANCISCO ROMEO RAMIREZ,

Plaintiff and Appellant, E071558

v. (Super.Ct.No. CIVDS1516561)

ISAOLE BARAJAS et al., OPINION

Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. John M. Pacheco,

Judge. Affirmed; cross-appeal dismissed.

Wilshire Law Firm and Daniel B. Miller for Plaintiff and Appellant, Francisco

Romeo Ramirez.

Kinkle, Rodiger and Spriggs, Scott B. Spriggs, and Ronald R. Carlson for

Defendants and Appellants, Isaole Barajas and Star Auto Parts, Inc.

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 Plaintiff Francisco Ramirez appeals from the judgment after a jury trial on his

personal injury claim. Plaintiff sued Isaole Barajas and her employer, Star Auto Parts,

Inc., (defendants) for $1.4 million in damages after Barajas rear-ended another person’s

car, causing it to hit the back of his pickup truck. Defendants admitted negligence but

contested causation and damages, and two months before trial, plaintiff rejected their

settlement offer of $350,000. (Code Civ. Proc., § 998, unlabeled statutory citations refer

to this code.) Ultimately, the jury concluded defendants were responsible for some but

not all of plaintiff’s medical costs (he had shoulder and neck surgery after the accident),

awarding him a total of $58,311.77.

Plaintiff challenges the damage award, arguing it is contrary to the law on

exacerbating a preexisting condition because the evidence the accident worsened his

existing shoulder injury was undisputed. He also argues the trial court committed

reversible error by excluding two documents he intended to use to impeach defendants’

orthopedic expert. In addition, defendants have filed a cross-appeal of the section 998

award, arguing the trial court improperly taxed the majority of their costs.

We conclude plaintiff’s arguments lack merit and defendants’ cross-appeal is

untimely. We therefore affirm the judgment and dismiss the cross-appeal for lack of

jurisdiction.

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 I

FACTS

A. The Accident and Subsequent Medical Treatment

In November 2014, Barajas was on delivery for her employer when she caused a

rear-end collision involving three cars. She tried to change lanes but didn’t see there was

a construction zone ahead and the cars in front of her had stopped. Her subcompact Ford

Fiesta rear-ended another subcompact car (a Chevy Aveo) at about 50 miles per hour,

which caused that car to collide with plaintiff’s pickup truck (a Nissan Frontier) at about

17 miles per hour. Plaintiff had been looking in his rearview mirror and saw the first

collision happen so he braced for the impact by putting his foot on the brake and hands

on the steering wheel.

After the accident, plaintiff made sure his two sons weren’t hurt, then got out of

his truck to check on the other two drivers, who were also okay but Barajas was crying

and apologizing. Plaintiff told her accidents happen and it was a good thing no one was

hurt. When the police arrived, plaintiff declined medical treatment but mentioned he had

some pain in his shoulder and neck. He drove away from the accident and took his sons

to lunch before going home. The cost of repairing his truck was $772 for parts and $2,507

for labor.

The accident happened on Friday afternoon. Plaintiff said he felt some pain over

the weekend and took two ibuprofen. On Sunday, he hired an attorney, who referred him

to a chiropractor. The chiropractor diagnosed plaintiff with a cervical spine sprain or

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 1
strain and treated him for about 20 sessions. The chiropractor’s final assessment report,

dated January 2015, says plaintiff’s neck pain had “resolved with full range of motion.”

At trial, the chiropractor said the diagnostic test he performed on plaintiff’s neck did not

indicate radiculopathy (or nerve injury).

In February 2015, plaintiff had surgery on his right shoulder to repair a tear in his

labrum (bone socket tissue) commonly referred to as a “SLAP” tear (which stands for

“superior labrum anterior to posterior”). In May 2015, he began receiving cervical

injections for renewed pain in his neck and, in April 2016, underwent surgical

discectomy and fusion of his fifth and sixth cervical vertebrae (C5 and C6).

Plaintiff was 39 years old at the time of the accident and was between jobs. His

most recent employment was in 2012, working in construction as a stone setter, a job that

required him and his partner to lift 100- to 200-pound stones on a routine basis.

B. Expert Testimony

Both sides presented medical and accident reconstruction experts to express their

views on the severity of the accident and whether it necessitated the treatment plaintiff

had received. It was undisputed that the Delta-V of plaintiff’s truck (the change in speed

from the impact) was between seven and eight miles per hour. It was also undisputed that

the labral tear in plaintiff’s right shoulder was a preexisting condition and was not caused

by the accident. As defendants’ radiologist explained, the presence of a sizable cyst near

1A sprain is an injury to the tissue or tendons that connect two bones together,
whereas a strain is an injury to muscle or the tendons that attach muscle to bone.
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the tear (caused by joint fluid seeping into the injury) meant the tear had occurred a few

years before the accident—either from one movement or repetition over time.

Where the experts disagreed was whether the accident necessitated either surgery.

Plaintiff’s experts believed the accident had exacerbated the tear to the point it required

surgery and had caused a disc injury to plaintiff’s neck. Plaintiff’s radiology expert could

not say whether the abnormalities in plaintiff’s cervical discs that were present in his

postaccident MRI predated the accident. Dr. Alexander, the orthopedic surgeon who had

performed the discectomy and fusion of plaintiff’s C5 and C6 vertebrae, acknowledged

that plaintiff’s MRI indicated he was suffering from aging-related disc degeneration, but

he believed the accident had caused additional trauma to the discs thereby necessitating

surgery.

Defendants’ orthopedic expert, Dr. Bhatia, strongly disagreed with Dr.

Alexander’s opinion and his treatment plan. He said it is virtually impossible in today’s

vehicles for a person to suffer a spinal injury from a low speed collision, and that if

plaintiff had suffered a disc injury from the accident, he would have immediately felt

severe nerve pain in his neck and the pain would have persisted. He believed the surgery

Dr. Alexander performed was “absolutely” unnecessary at this stage of plaintiff’s life and

that he would have recommended more conservative and less invasive treatment. In his

opinion, plaintiff had suffered a cervical sprain from the accident, necessitating precisely

the type of treatment the chiropractor had performed. He said the cost of that treatment

would typically be $2,000 but could be as high as $4,000.

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 Defendants’ radiologist believed to a medical certainty that plaintiff’s MRI

showed chronic, aging-related degeneration that was actually quite typical for someone

plaintiff’s age. He explained that the presence of bone spurs on plaintiff’s cervical

vertebrae indicated his discs had been degenerating for years prior to the accident. The

fact the discs were bulging rather than herniated also pointed towards a chronic condition

as opposed to acute trauma.

As for plaintiff’s shoulder, Dr. Bhatia apportioned the cause of surgery equally

between the accident and the preexisting tear and cyst. He said that “both of the issues

. . ., the incident and the underlying labral tear and cyst played into” the need for surgery.

“[I]f either one of those hadn’t existed, he probably wouldn’t have needed surgery at the

time he had it.” When asked if he could quantify “on a percentage basis . . . what portion

[of the shoulder surgery] would be due to preexisting conditions and what portion would

be due to the auto accident,” Dr. Bhatia replied, “I would say 50/50.”

Finally, defendants’ accident reconstruction and biomechanics expert concluded it

was virtually impossible defendant suffered a disc injury from the accident because the

impact was so minor. He explained that a change in velocity of seven to eight miles was

within the range of impact between bumper cars, and the trailer hitch on the back of

plaintiff’s truck had absorbed some of the impact. By his calculation, the impact would

have caused plaintiff’s neck to move three inches at most, which could possibly result in

a muscle or tendon strain, but not radiculopathy or disc injury.

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 C. The Verdict

The parties stipulated that the reasonable charges for the medical treatment

plaintiff had received was $205,881.17—that is, $62,623.53 for the shoulder treatment

and $143,257.64 for the neck treatment. During plaintiff’s closing statement, counsel

argued his damages totaled over $1.4 million broken down as follows: $205,881.17 for

past medical expenses; $150,000 for future medical expenses; $400,000 for past pain and

suffering; and $653,350 for future pain and suffering. In contrast, defense counsel argued

for a total damage award of $65,000. He said defendants should be liable for half the cost

of the shoulder surgery plus $4,000 for the chiropractic treatment of the neck, plus

$30,000 for past pain and suffering.

The jury retired to deliberate around noon on the last day of trial and returned a

verdict that same afternoon. They found Barajas’ negligence was a substantial factor in

causing harm to plaintiff and awarded him $58,311.77 in damages, comprised of

$33,311.77 for past medical expenses, $25,000 for past pain and suffering, and nothing

for future medical expenses or future pain and suffering. They were unanimous on each

of the damage amounts except for the $25,000 award for past pain and suffering, for

which the vote was nine to three.

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 II

ANALYSIS

A. The Damage Award

Plaintiff contends the damage award is contrary to the law on aggravation of

preexisting conditions. He argues the evidence was undisputed on two crucial points—

that the accident had aggravated his labral tear and that he would not have needed surgery

if the accident had not occurred. As a result, he argues, the law on aggravating

preexisting conditions renders defendants liable for the entire cost of his surgery, not half

the cost like the jury awarded. We disagree.

“The amount of damages is a fact question, committed . . . to the discretion of the

jury,” and we review the award for substantial evidence. (Westphal v. Wal-Mart Stores,

Inc. (1998) 68 Cal.App.4th 1071, 1078.) We do not “reassess the credibility of witnesses

or reweigh the evidence,” but instead “consider the evidence in the light most favorable

to the judgment, accepting every reasonable inference and resolving all conflicts in its

favor.” (Ibid.) “A reviewing court must uphold an award of damages whenever possible

and all presumptions are in favor of the judgment.” (Bertero v. National General Corp.

(1974) 13 Cal.3d 43, 61, citations omitted (Bertero).)

A plaintiff in a personal injury action must prove causation of injury to a

reasonable medical probability. (Jones v. Ortho Pharmaceutical Corp. (1985) 163

Cal.App.3d 396, 402.) Here, plaintiff is correct that “‘a tortfeasor may be held liable in an

action for damages where the effect of his negligence is to aggravate a preexisting

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condition or disease.” (Sanchez v. Kern Emergency Medical Transportation Corp. (2017)

8 Cal.App.5th 146, 168.) What he overlooks however, is the second part of the

preexisting condition rule, which provides that he may recover only to the “extent that his

or her condition has worsened as a result of defendant’s tortious act.” (Ibid.)

The trial court correctly instructed the jury on these principles with CACI 3927,

which says that if the jury found plaintiff “had a physical or emotional condition that was

made worse by [the accident],” they “must award damages that will reasonably and fairly

compensate him for the effect on that condition.” (Italics added.) The instruction directs

the jury to “decide the full amount of money that will reasonably compensate . . .

[plaintiff] for all damages caused by [the accident], even if [he] was more susceptible to

injury than a normally healthy person would have been, and even if a normally healthy

person would not have suffered similar injury.” (Italics added.)

While it was undisputed plaintiff’s labral tear was a preexisting condition and the

accident aggravated it, the evidence was in conflict over whether the accident caused

plaintiff to need surgery. Plaintiff’s experts said the accident was the sole cause of

surgery, but when defense counsel asked Dr. Bhatia if the accident was the sole cause or

whether he could quantify what portion of the shoulder surgery was caused by the

preexisting conditions and what was caused by the accident, Dr. Bhatia replied that both

were causes and the allocation was “50/50.” He then reiterated the point on cross,

explaining, “both of the issues that we’ve discussed, the incident and the underlying

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labral tear and cyst played into it. He—if either one of those hadn’t existed, he probably

wouldn’t have needed surgery at the time he had it.”

At oral argument, plaintiff argued Dr. Bhatia’s opinion was based on mere

possibility, and not on a reasonable medical probability, because the expert used the word

“maybe” in the following sentence: “So maybe if he didn’t have the car accident, he

[would wind] up needing the surgery at the same time.” But this takes too narrow a view

of Dr. Bhatia’s opinion. It ignores the fact he also told the jury that “both . . . the incident

and the underlying labral tear and cyst played into it” and “if either one of those hadn’t

existed, he probably wouldn’t have needed surgery at the time he had it.” (Italics added.)

Plaintiff is correct that the standard for establishing causation in a personal injury case is

not “medical ‘possibility.’” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003)

114 Cal.App.4th 1108, 1118.) But neither is it medical certainty. The standard is

“medical ‘probability,’” and a “possible” cause “becomes ‘probable’ when, in the

absence of other reasonable causal explanations, it becomes more likely than not that the

injury was a result of its action.” (Ibid.) As we read the entirety of Dr. Bhatia’s

testimony, he provided the jury a basis to conclude it was more likely than not that the

accident and preexisting conditions were equal causes of his harm (i.e., the cost of

shoulder surgery).

The adequacy of damages depends upon the facts of each case. (Miller v. San

Diego Gas & Electric Co. (1963) 212 Cal.App.2d 555, 558.) “Obviously there is no rule

by which either expert or laymen may measure the precise degree, if any, to which a pre-

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existing pathological condition has been aggravated.” (Taylor v. Pole (1940) 16 Cal.2d

668, 672-673.) As a result, “the segregation of the items which combine to form the full

measure of actual injury is a matter for the exercise by the jury . . . and in assessing the

damages it is accorded a ‘wide latitude’ and an ‘elastic discretion.’” (Ibid.)

It is clear from the damage award that the jury found Dr. Bhatia’s opinions more

credible than those of plaintiff’s experts. Dr. Bhatia allocated 50 percent of the need for

surgery to the accident and testified that $2,000 was a reasonable cost for chiropractic

treatment of a cervical sprain/strain. The jury awarded $33,311.77 for past medical

expenses, which equals the sum of half of the stipulated cost of the shoulder surgery plus

$2,000 for chiropractic treatment.

“The relevant and considered opinion of one physician, though inconsistent with

other medical opinions, may constitute substantial evidence.” (Smith v. Workmen's Comp.

App. Bd. (1969) 71 Cal.2d 588, 592.) Because the damage award is sufficiently supported

by Dr. Bhatia’s testimony, we presume the jurors resolved the evidentiary conflicts in

defendants’ favor and defer to their determination of the effect the accident had on

plaintiff’s preexisting condition. (Bertero, supra, 13 Cal.3d at p. 61.)

B. Excluded Impeachment Evidence

Plaintiff argues that two of the trial court’s rulings limiting his counsel’s attempt

to impeach Dr. Bhatia constitute reversible error. Again, we disagree.

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 1. Additional facts

Dr. Bhatia is the chief of spine surgery and chair of the orthopedics department at

the University of California, Irvine (UCI). He is a board-certified specialist in spine

surgery, graduated valedictorian of his class at Baylor College of Medicine, and has

written more than a dozen text books or book chapters in his field. He has received

awards and recognition for his research and surgeries, the most notable of which was

when he operated on an “internal decapitation.” The patient’s skull had been severed

from his spine (and was held together by only the skin and muscles) during a car accident

that left the driver dead. Dr. Bhatia fully repaired the injury, “[a]nd six weeks later he

was throwing the ball out at the first Angels game.”

On cross-examination, plaintiff’s counsel attempted to impeach Dr. Bhatia’s

credibility in two areas. First, counsel tried to admit as a prior inconsistent statement the

following quote from an informational pamphlet: “Each year, about three million people

experience whiplash injuries to their neck and back. Of these three million people, only

about one half, will fully recover. About 600,000 of those individuals will have long-term

symptoms, and 150,000 will actually become disabled as a result of the injury.” The

pamphlet was called “A Patient’s Guide to Cervical Whiplash,” and it had Dr. Bhatia’s

name, telephone number, and photograph on it. Before introducing the pamphlet,

plaintiff’s counsel asked Dr. Bhatia if he “[w]ould . . . agree that three-million rear end

accidents occur a year, and only about half those folks fully recover?” Dr. Bhatia

responded that he hadn’t researched that issue but the statement seemed “extremely out

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of the usual.” Counsel then showed him the pamphlet, which he did not recognize. After

a series of questions, it became clear that Dr. Bhatia had never seen the pamphlet before,

and to his knowledge it had never been displayed in any of his offices. Defense counsel

objected that the pamphlet lacked foundation and the trial court sustained the objection.

The second area related to Dr. Bhatia’s outside income disclosures to his

employer, UCI. Plaintiff wanted to show Dr. Bhatia was violating UCI’s disclosure

policy by reporting only a portion of the income he earned as a forensic expert. In this

vein, during cross-examination counsel asked Dr. Bhatia to estimate how much he had

earned from his expert work in 2016. When Dr. Bhatia answered it was likely somewhere

around $200,000, counsel showed him his income disclosure for the 2015-2016 reporting

period, which listed outside earnings of 32,700. Dr. Bhatia explained that UCI’s reporting

requirement applied only to income earned from commitments that directly conflicted

with his work at the university, which is why he had reported a lower number. In an

attempt to demonstrate Dr. Bhatia’s interpretation was wrong, counsel showed him UCI’s

disclosure policy for the year 2014. During a lengthy series of questions, counsel and Dr.

Bhatia went back and forth pointing out the places in the policy that supported their

respective interpretations. When counsel tried to read to the jury certain clauses of the

policy he believed supported his interpretation, the trial court sustained defendants’

hearsay objection.

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 2. Discussion

Plaintiff argues the court erred by excluding the whiplash pamphlet because

foundation is not required for a prior inconsistent statement. Relying on Am-Cal

Investment Co., Inc. v. Sharlyn Estates, Inc. (1967) 255 Cal.App.2d 526, 541 and

Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 316-317 (Jazayeri), he argues it was also

error to exclude the contents of UCI’s reporting policy as hearsay because the policy falls

within the “operative facts” exception. We disagree on both points.

Under Evidence Code section 780, “[t]he credibility of a witness may be attacked

by showing that, on some former occasion, he made statements ‘inconsistent with any

part of his [trial] testimony.’” (People v. Woodberry (1970) 10 Cal.App.3d 695, 702-703;

Evid. Code, § 780, subd. (h).) A trial court has wide latitude in determining whether to

admit impeachment evidence, and we review the court’s ruling for abuse of discretion.

(People v. Turner (2017) 13 Cal.App.5th 397, 408.)

Issues of foundation aside, there is a more fundamental reason for excluding the

whiplash pamphlet—it isn’t a prior inconsistent statement. Plaintiff wanted to use the

pamphlet’s statement that only about half of the people who experience whiplash will

recover to impeach Dr. Bhatia’s credibility, but nothing Dr. Bhatia said at trial was

inconsistent with the pamphlet’s generalized comment on whiplash. Dr. Bhatia gave

specific reasons for concluding that plaintiff had not suffered a disc injury but had instead

suffered a cervical strain. He never opined about cervical strains in general or how likely

people who suffer from a cervical strain are to recover. Additionally, even if the

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statement were inconsistent with any of Dr. Bhatia’s testimony, plaintiff would not be

able to demonstrate prejudice. Because the statement is so generalized and contained in a

pamphlet Dr. Bhatia claimed to have never seen (let alone endorse), there is simply no

likelihood that its exclusion from the case had any effect on the jury’s unanimous

decision not to compensate plaintiff for the neck surgery.

As for UCI’s income reporting policy, plaintiff misunderstands the operative facts

exception. As Jazayeri explains, the hearsay exception applies when “the very fact in

controversy is whether certain things were said or done[,] not . . . whether these things

were true or false,” and the proffered document proves whether those things were in fact

said or done. (Jazayeri, supra, 174 Cal.App.4th at p. 316, quoting 1 Witkin, Cal.

Evidence (4th ed. 2000) Hearsay, § 31, p. 714, italics added.) The most common

application of this exception is where the parties dispute whether they had reached an

agreement, and the court allows the admission of a written contract, which would

otherwise be hearsay, as evidence that there had in fact been a meeting of the minds. That

is not the situation with the income reporting policy. During cross-examination, counsel

and Dr. Bhatia spent a significant amount of time debating the proper interpretation of

one particular clause in the policy. By seeking to admit the policy as evidence, plaintiff

was trying to demonstrate that his interpretation was correct, not that the policy exists. As

such, the court properly excluded the document as hearsay.

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 In any event, plaintiff cannot demonstrate this ruling prejudiced his case, either.

Though the policy was not admitted into evidence, counsel covered the relevant policy

language at length during cross-examination, at times quoting directly from the

document. In addition, plaintiff’s counsel also spent a significant portion of his closing

statement arguing that his interpretation of the policy was correct, meaning Dr. Bhatia

was underreporting the income he received for his forensic expert work. As a result, the

jurors had all of the information they needed to infer that Dr. Bhatia was not credible

based on his reporting conduct. But such an inference was unlikely on this record, given

Dr. Bhatia’s credentials and the fact the policy leaves room for his interpretation of the

reporting requirement. We therefore conclude there is no likelihood that admitting the

policy into evidence would have affected the outcome of the case.

C. Defendants’ Cross-Appeal Is Untimely

1. Additional facts

The trial court entered judgment on August 29, 2018. On September 13,

defendants sought a total of $139,951.97 in costs and fees under section 998. They sought

$111,774.88 in expert witness fees; the remaining fee request for $28,177.09 covered

ordinary litigation costs. While their cost memorandum separated their request into

various categories, defendants didn’t identify the dates on which any of the costs had

been incurred. Plaintiff filed a motion to tax the majority of defendants’ costs on the

grounds the costs were either incurred pre-offer or unreasonable. Plaintiff attached

several invoices from defendants’ experts to show the costs had been incurred pre-offer.

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In opposing the motion, defendants attached a declaration from their attorney which said

he was attaching a “true and correct copy of documents related to Defendant’s costs as

set forth in [their] Memorandum of costs,” but the declaration had no attachments.

On October 29, plaintiff filed a notice of appeal from the judgment. On November

7, the trial court held a hearing on plaintiff’s motion to tax costs and granted it in its

entirety, taxing $130,667.58 of defendants’ costs and awarding them the remaining

$9,284.39 The court found defendants’ request “deficient” because they failed to identify

the dates of the costs. The court also noted that defendants’ opposition failed to attach

any information regarding the costs or address the costs plaintiff had argued were

unreasonable. On December 10, defendants filed a notice of cross-appeal, checking the

box marked “other” and saying they were cross-appealing the court’s “order taxing

costs.”

2. Discussion

“Section 998 exists to encourage settlement of disputes, where possible, before the

parties and the public have incurred the sizeable expense of conducting a full-blown trial.

It applies in cases, like this one, where one party has made and the other party has

rejected a settlement offer before trial.” (Arave v. Merrill Lynch, Pierce, Fenner & Smith,

Inc. (2018) 18 Cal.App.5th 1098, 1116.) The statute provides, “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 not recover his or her postoffer costs and shall pay the

defendant’s costs from the time of the offer. In addition . . . the court . . . in its discretion,

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may require the plaintiff to pay a reasonable sum to cover costs of the services of [the

defendant’s] expert witnesses . . . actually incurred and reasonably necessary.” (§ 998,

subd. (c).)

In their cross-appeal, defendants challenge the court’s order taxing the majority of

their section 998 request. They argue the court erroneously failed to treat their attorney’s

declaration “that all the costs in the Memorandum are true and accurate” as sufficient to

satisfy their burden of proving costs and expert fees under section 998. While this

argument fails for multiple reasons (the most obvious of which is that defendants have

mischaracterized the declaration—it did not say the costs listed in the memorandum were

true and accurate, it said it was attaching true and accurate information about the costs,

but then failed to do so), we lack jurisdiction to reach the merits of the cross-appeal,

because, as plaintiff correctly points out, defendants’ challenge is untimely.

Under the California Rules of Court, defendants were required to file their cross-

appeal within 20 days of the superior court serving them notice of plaintiff’s appeal,

which occurred on October 30, 2018. (Cal. Rules of Court, rule 8.108(g).) As we’ve seen,

defendants did not file their notice until December 10, which is 21 days past the cross-

appeal deadline. A timely notice of appeal is a jurisdictional requirement we may not

overlook. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1316 [in the absence

of a valid and timely notice of appeal, the reviewing court lacks jurisdiction].)

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 We note there is an additional jurisdiction issue with defendants’ challenge to the

cost order. A cross-appeal may challenge only the same judgment or orders challenged by

the underlying appeal (Aheroni v. Maxwell (1988) 205 Cal.App.3d 284), and it is well

established that “[a]n award of expert witness fees [under] section 998 is not incidental to

the judgment but is instead a separately litigated issue.” (Fish v. Guevara (1993) 12

Cal.App.4th 142, 148.) This is because, while section 998 makes ordinary litigation costs

mandatory, it gives the trial court discretion to award expert fees. (§ 998, subd. (c).) And,

because it is not incidental to the judgment, “a postjudgment award of expert witness fees

cannot be reviewed on an appeal [or cross-appeal] from the judgment” but must instead

be the subject of a separate notice of appeal. (Fish, at p. 148.) In other words, plaintiff’s

“notice of appeal from the judgment did not create appellate jurisdiction over the trial

court’s subsequent [ruling on] . . . expert witness fees” such that a cross-appeal would be

sufficient to challenge the ruling. (Ibid.) Thus, untimeliness aside, defendants’ cross-

appeal would not give us jurisdiction to review the court’s order taxing expert fees—

which, at $111,774.88 were the bulk of the costs taxed. To challenge that order,

defendants were required to file a separate notice of appeal.

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 We note there is an additional jurisdiction issue with defendants’ challenge to the

cost order. A cross-appeal may challenge only the same judgment or orders challenged by

the underlying appeal (Aheroni v. Maxwell (1988) 205 Cal.App.3d 284), and it is well

established that “[a]n award of expert witness fees [under] section 998 is not incidental to

the judgment but is instead a separately litigated issue.” (Fish v. Guevara (1993) 12

Cal.App.4th 142, 148.) This is because, while section 998 makes ordinary litigation costs

mandatory, it gives the trial court discretion to award expert fees. (§ 998, subd. (c).) And,

because it is not incidental to the judgment, “a postjudgment award of expert witness fees

cannot be reviewed on an appeal [or cross-appeal] from the judgment” but must instead

be the subject of a separate notice of appeal. (Fish, at p. 148.) In other words, plaintiff’s

“notice of appeal from the judgment did not create appellate jurisdiction over the trial

court’s subsequent [ruling on] . . . expert witness fees” such that a cross-appeal would be

sufficient to challenge the ruling. (Ibid.) Thus, untimeliness aside, defendants’ cross-

appeal would not give us jurisdiction to review the court’s order taxing expert fees—

which, at $111,774.88 were the bulk of the costs taxed. To challenge that order,

defendants were required to file a separate notice of appeal.

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 III

DISPOSITION

We affirm the judgment and dismiss defendants’ cross-appeal. In the interests of

justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule

8.278(a)(5).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.

We concur:

MILLER
Acting P. J.

FIELDS
J.

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