Arechiga v. Arguilez

Filed 6/29/06 Arechiga v. Arguilez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from a judgment of the Superior Court of Imperial County, Donal B. Donnelly, Judge. Affirmed.

After a surgical sponge was mistakenly left in her abdomen during surgery, Natalia Arechiga sued the surgeon who performed the surgery, Lawrence C. Arguilez; the assistant surgeon, Elias Moukarzel; and the El Centro Regional Medical Center (ECRMC) where the surgery was performed, for resulting damages. During the litigation that followed, Arechiga settled her claim against ECRMC and dismissed her claim against Moukarzel, proceeding to trial solely against Arguilez. After trial, the jury returned a 10‑to‑2 verdict for Arguilez.

Arechiga appeals contending that she is entitled to a new trial because the trial court erroneously: (i) informed the jury that she had settled with ECRMC; (ii) permitted Arguilez to present expert testimony on the standard of care; (iii) rejected her challenge for cause to a juror who was a former patient of Arguilez; and (iv) instructed the jury under standard CACI instructions regarding medical negligence rather than custom instructions she proposed based on California case law. Arguilez and Moukarzel cross-appeal, contending the court abused its discretion by not awarding them expert witness fees pursuant to Code of Civil Procedure section 998.^[1]

We reject Arechiga's challenges in large part because she has failed to satisfy her burden of providing an adequate appellate record for review. With respect to the cross-appeal, we conclude that the trial court did not abuse its discretion in denying Arguilez's and Moukarzel's expert witness fee requests under section 998. Consequently, we affirm.

FACTS^[2]

On July 3, 2001, Arechiga underwent abdominal surgery at ECRMC. Arguilez, a surgeon, performed the surgery with Moukarzel acting as assistant surgeon. Arguilez was also assisted by nurses employed by ECRMC.

Arguilez used surgical sponges during the procedure. Pursuant to ECRMC policy, the nurses were required to keep track of the sponges used, and to insure that no sponges were left in the patient after surgery. The nurses failed to do so, and a sponge was mistakenly left inside Arechiga's abdomen. Arechiga required a second surgery to remove the sponge.

DISCUSSION

ARECHIGA'S APPEAL

On appeal, Arechiga challenges a number of the trial court's rulings. As discussed below, we reject each of these challenges because Arechiga -- who requested only a partial transcription of the trial proceedings for this appeal -- fails to carry her burden of demonstrating either error, prejudice or both.

I

Arechiga Fails to Demonstrate That the Trial Court's "Evidentiary" Rulings

Constitute Reversible Error

Arechiga challenges two of the trial court's "evidentiary" rulings: (i) informing the jury^[3] that she settled her lawsuit against ECRMC prior to trial;^[4] and (ii) permitting Arguilez to introduce expert testimony regarding surgical sponge count practices. We reject both contentions because even were we to conclude the rulings were erroneous (an issue we need not reach), Arechiga fails to demonstrate sufficient prejudice to warrant reversal. An appellate court is precluded from reversing any judgment on the ground of "misdirection of the jury" or "the improper admission or rejection of evidence" unless "after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. 6, § 13; Evid. Code, § 353; Code Civ. Proc., § 475.) As a result of this requirement, " '[t]he burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice.' " (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 (McLaughlin).) To carry this burden, an appellant must " 'spell[] out in his brief exactly how the error caused a "miscarriage of justice" ' " (ibid., italics added) and must present an "an adequate record" to support its prejudice argument. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (Ballard).)

Arechiga fails to carry her appellate burden, as her briefing -- without analysis or citation -- merely asserts that prejudice "cannot be doubted" from the jury's being told that a settlement had been reached with ECRMC, and that "it is reasonably probable that a different result would have been reached" had the trial court disallowed expert testimony on the standard of care. These assertions, without an explanation of the causal nexus between the purported error and the requisite miscarriage of justice, are woefully inadequate. (McLaughlin, supra, 82 Cal.App.4th at p. 337; People v. Stanley (1995) 10 Cal.4th 764, 793 [it is not the role of reviewing court to independently seek out support for appellant's conclusory assertions, and such contentions may be rejected without consideration].)^[5]

In addition, even if we were to overlook this failing, the record on appeal is utterly insufficient to demonstrate upon an "examination of the entire cause, including the evidence," that a "miscarriage of justice" occurred. (Cal. Const., art. 6, § 13.) The only portions of the trial that have been transcribed for this appeal are the trial court's ruling on in limine motions, a portion of the voir dire proceedings, the direct examination of the plaintiff, one jury instruction, and one page of defense counsel's closing argument. This record -- which omits the testimony of the bulk of the witnesses (including the expert witness testimony specifically challenged on appeal), the arguments of counsel, the instructions to the jury, and the cross-examination of the plaintiff -- is wholly inadequate to demonstrate that the errors complained of were prejudicial. (Cal. Const., art. 6, § 13 [error must be established upon "examination of the entire cause, including the evidence"]; McLaughlin, supra, 82 Cal.App.4th at p. 337 [prejudice "must appear affirmatively upon the court's examination of the entire record"].) Consequently, we presume that the asserted error was not prejudicial and that reversal is unwarranted. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham) [presumption in favor of a judgment applies not only where the record is silent as to error, but also when the record is silent as to prejudice, as the presumption "is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error"]; Ballard, supra, 41 Cal.3d at p. 574.)^[6]

II

Arechiga Fails to Establish That the Trial Court's Refusal to Strike a

Potential Juror for Cause Requires Reversal

Arechiga contends that the judgment must be reversed because the trial court rejected her for-cause challenge to Juror Mendoza. This claim fails because Arechiga has demonstrated neither error nor prejudice from the trial court's ruling.

During voir dire, Juror Mendoza informed the court that Arguilez had "delivered both of [her] children," ages 5 and 9, and that while her experience with Arguilez was "very good," she could "be fair and impartial" as a juror in the case. Arechiga's counsel, who was permitted broad latitude to inquire of the potential jurors during voir dire, asked Juror Mendoza a number of questions on other topics, but did not ask any questions regarding her relationship with Arguilez. At the conclusion of voir dire, Arechiga's counsel moved to excuse Juror Mendoza for cause. The court ruled that removal for cause was not warranted because the relationship between Arguilez and Juror Mendoza existed "approximately five years ago"; there was "no evidence . . . that [Juror Mendoza was] a current patient of any kind"; and she "gave all the right answers, and she seems to clearly understand the role of a juror and her duty and commitment to not allow any past experience or personal relationships affect her duty to be fair and impartial."

Arechiga contends the trial court abused its discretion in denying her for-cause challenge because Juror Mendoza had an implied bias in favor of Arguilez. (See § 229 ["A challenge for implied bias may be taken for one or more of the following causes . . . . [¶] . . . [¶] (f) The existence of a state of mind in the juror evincing enmity against, or bias towards, either party"].) Arechiga's contention fails on two grounds.

First, the record does not establish that Juror Mendoza had an implied bias requiring her removal from the jury panel. "[A] physician-patient relationship between a juror and a doctor-defendant will not, by itself, justify disqualification." (Kimbley v. Kaiser Foundation Hospitals (1985) 164 Cal.App.3d 1166, 1171; Scott v. McPheeters (1942) 52 Cal.App.2d 61, 64-65 [no abuse of discretion in denial of for-cause challenge where defendant was juror's "family physician" because record did not show "she would have been prejudiced or biased in his favor, if she had been accepted as a juror"].) Here, the voir dire record reveals only the most basic information noted above, and is silent as to any details regarding the relationship between Arguilez and Juror Mendoza (for example, whether Arguilez was her regular obstetrician or simply happened to be on-call when her children were born). Consequently, the record fails to demonstrate an abuse of discretion. (People v. Sanchez (1989) 208 Cal.App.3d 721, 732 ["The conduct of the voir dire and the qualification of jurors challenged for cause are matters within the wide discretion of the trial court, seldom disturbed on appeal"], criticized on other grounds in People v. Jones (1990) 51 Cal.3d 294, 311; cf. People v. Stewart (2004) 33 Cal.4th 425, 445 [party moving to excuse juror for cause "bore the burden of demonstrating to the trial court that" the juror would not be able to perform her duties].)

Second, we must also reject Arechiga's contention on the alternative ground that she fails to demonstrate prejudice. " '[E]rrors committed in overruling challenges for cause are not grounds [for] reversal, unless it [is] shown an objectionable juror was forced upon the challenging party after he had exhausted his peremptory challenges . . . .' " (People v. Slaughter (1917) 33 Cal.App. 365, 369-370 (Slaughter); Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 1673.) Here, Arechiga fails to provide any record that she exhausted her peremptory challenges prior to the trial court's rejection of her for-cause challenge to Juror Mendoza -- and consequently there is no showing that the " 'objectionable juror was forced upon' " her. (Slaughter, at p. 370; People v. Swanson (1938) 24 Cal.App.2d 544, 547 [where record did not demonstrate that "appellant exhausted all of his peremptory challenges," "the legal presumption would follow that the appellant went to trial before an unbiased jury, and that the appellant did not exhaust all of his challenges"]; People v. Lyons (1958) 50 Cal.2d 245, 273 [same], overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 32.)

Arechiga concedes it is "technically correct" that she did not provide an adequate record of her exhaustion of peremptory challenges. She contends nevertheless that one of the attorneys who signed Arguilez's appellate brief was "present at trial and is fully aware that appellant in fact did exhaust all six of her peremptory challenges." Consequently, Arechiga asks us to either simply excuse her failure to provide the requisite record or alternatively "to augment at any time the reporter's transcript" on our own initiative "to establish the fact that appellant did indeed exhaust her allotment of six peremptory challenges." We decline to do so.

We are not at liberty to overlook an absence of the requisite record evidence simply because one party assures us that the evidence exists. (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 ["Without the proper record, [a reviewing court] cannot evaluate issues requiring a factual analysis," as there is no way to "verify the facts asserted"]; Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, 1560-1561 [assertion of fact without "record reference" properly "ignore[d]" by Court of Appeal]; Cal. Rules of Court,^[7] rule 14.)

Moreover, even if we were inclined to augment the record on our own initiative, Arechiga provides us with no direction as to how to do so. Instead, she asks us to function as her counsel and determine how best to augment the record to support her claim. This is not a proper role for the reviewing court. (Rule 12(a) [requiring party seeking to augment the record to provide court with matter sought to be added to the record, or otherwise identify matter under applicable rules of court]; People v. Dougherty (1982) 138 Cal.App.3d 278, 283 [" 'If and when we are required to perform tasks which are properly those of appellants' counsel, we necessarily relegate farther into the background appeals waiting their turn to be decided. It is unfair to litigants thus affected that we do this' "].)^[8]

In sum, because (i) the record does not establish anything other than a doctor-patient relationship between Arguilez and Juror Mendoza five years prior to trial; and (ii) Arechiga fails to demonstrate that she could not have simply removed Juror Mendoza with a peremptory challenge, we reject Arechiga's claim of juror selection error.

III

Arechiga Fails to Demonstrate That Reversal Is Required Based on Her

Claims of Instructional Error

Arechiga contends the trial court erred by failing to give the jury three non-CACI instructions purportedly derived from case law, specifically that:

1. "A surgeon has a duty or responsibility to remove any surgical sponge he has placed in the surgically opened abdomen of his patient. [¶] He may not relieve himself of this responsibility by passing it on to any other person." (Citing Ales v. Ryan (1936) 8 Cal.2d 82, 105 (Ales).)

2. "Nurses normally become the temporary servants or agents of the surgeon in charge while the operation is in progress. [¶] Liability may be imposed upon the surgeon for nurses' negligent acts." (Citing Ybarra v. Spangard (1944) 25 Cal.2d 486, 493 (Ybarra).)

3. "A nurse is a temporary servant or agent of the surgeon during an operation if the surgeon has the right to control her or his work. Actual control is not required to find a nurse is the temporary servant or agent of the surgeon." (Citing Ybarra, supra, 25 Cal.2d at p. 493.)

We need not engage in an expansive review of the development of the medical malpractice law to determine if the above-quoted instructions are correct statements of law and should have been given by the trial court. Arechiga's claims of instructional error must fail for the simple reason that by failing to provide an adequate record of the proceedings below she is unable to demonstrate error or prejudice. Reversal, therefore, is not warranted regardless of the legal validity of any of her proposed instructions.

The absence of an adequate record on appeal precludes us from finding error in this case because, among other things, we have not been provided with record evidence (much less citations to that record) demonstrating Arechiga's request for the above-quoted jury instructions and the trial court's refusal to give them. (Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 312 [appellant asserting instructional error must "make certain that the trial court has ruled and that the record on appeal discloses that ruling before the alleged ruling may be assigned as error"]; Faulk v. Soberanes (1961) 56 Cal.2d 466, 471 [appellant asserting instructional error "has the burden to present a record sufficiently complete to establish that the claimed errors were not invited by her, and in the absence of such a showing she may not properly complain"].)^[9] Consequently, as the evidentiary record is silent as to the instructions actually requested and given, we must presume that there was no instructional error.^[10] (Denham, supra, 2 Cal.3d at p. 564.)

In addition, there is not a sufficient record of the trial proceedings to determine whether the refusal to give any of the instructions, even if erroneous, was prejudicial.

"[T]he existence of instructional error alone is insufficient to overturn a jury verdict. A defendant must also show that the error was prejudicial (Code Civ. Proc., § 475) and resulted in a 'miscarriage of justice' (Cal. Const., art. VI, § 13) [which] ' "should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ' " (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069, citations omitted.)

As we have almost no record evidence of the instructions the trial court actually gave, or the evidence and argument at trial, we are precluded from concluding that Arechiga suffered the requisite prejudice from the asserted errors to warrant reversal.^[11] (Wilkinson v. Bay Shore Lumber Co. (1986) 182 Cal.App.3d 594, 599-600 [" 'Consistent with the fundamental rule of appellate procedure that the appellant must make an affirmative showing of error by an adequate record [citations], it is incumbent upon the appellant to demonstrate that the [instructional] error was prejudicial under the particular facts in evidence by bringing before the reviewing court a sufficient record showing that absent the error, there was a reasonable probability of a finding in appellant's favor' "]; Kostecky v. Henry (1980) 113 Cal.App.3d 362, 375-376 [rejecting claim of instructional error because appellants "designated only a partial reporter's transcript" and thus "failed to demonstrate through the limited record on which they have prosecuted this appeal" the requisite prejudice].)^[12]

ARGUILEZ AND MOUKARZEL'S CROSS-APPEAL

IV

The Trial Court Did Not Abuse Its Discretion by Denying Arguilez's and Moukarzel's

Requests for Payment of Expert Witness Fees

In their cross-appeal, Arguilez and Moukarzel contend the trial court abused its discretion by denying their respective requests for an award of expert witness fees under section 998. We evaluate these claims below after setting forth the pertinent facts.

A

Facts Regarding Expert Witness Fee Requests

On August 11, 2003, Arguilez and Moukarzel served Arechiga with separate but identical section 998 settlement offers. The offers stated that each defendant "offers zero dollars and to waive costs (which at this time exceed $2,000 and are expected to continue to increase in the future) in exchange for a dismissal of him from this action with prejudice." Arechiga did not accept the offers.

Arechiga dismissed Moukarzel from the case on November 29, 2004, just prior to trial. The jury returned its verdict in favor of Arguilez on December 10, 2004. After the verdict, Arguilez and Moukarzel each filed memoranda of costs requesting reimbursement of costs incurred in defending the lawsuit. (See § 1033.5.) Among the costs sought were expert witness fees paid to the defense's sole expert witness, Dr. Michael Kettel.

The trial court denied both requests for expert witness fees. With respect to Arguilez's section 998 request, the court determined the offer was not " 'reasonable' " or " 'in good faith' " because at the time it was made: the case was "ready for trial"; the evidence suggested that Arechiga "had a [viable] claim for malpractice"; and Arechiga intended to seek a jury instruction based on Ales, supra, 8 Cal.2d 82, 105, that the attending surgeon has a "non-delegable duty" (essentially, strict liability) to remove all sponges used during surgery. Further, at the time of Arguilez's offer ECRMC was still a defendant, which meant that if the case proceeded to trial as then situated, Arechiga would likely receive a favorable verdict, and Arguilez's liability would come down to "an issue of fact . . . of comparative fault between [Arguilez] and the hospital staff." With respect to Moukarzel's section 998 request, while finding the settlement offer was made in good faith, the trial court determined it would nevertheless "exercise [its] discretion and deny any expert witness fees." The court based this decision on: "the limited settlement recovery by plaintiff and the nature and quality of the litigation and issues in dispute"; the "fact that the plaintiff dismissed Dr. Moukarzel on the eve of trial"; and the "court's review of the discovery and pleadings that were proffered," which revealed that "Dr. Kettel's primary expertise was devoted in the service of defending Dr. Arguilez," not Moukarzel.

Consequently, the trial court did not award expert witness fees to Arguilez or Moukarzel, although it did award Arguilez $9,802.74 in other costs (as opposed to the $22,537.57 requested) under other statutory cost-shifting provisions.^[13]

B

The Trial Court Did Not Abuse Its Discretion in Denying

Arguilez's Request for Expert Fees

Under section 998, if a plaintiff refuses an offer to settle and ultimately fails to obtain a more favorable judgment, the trial court "in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses" that were "reasonably necessary" for trial. (§ 998, subd. (c)(1).)^[14] To trigger the benefits of this section, however, a section 998 offer must be made in good faith. (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821; Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 698.) "Good faith requires that the pretrial offer of settlement be 'realistically reasonable under the circumstances of the particular case. Normally, therefore, a token or nominal offer will not satisfy this good faith requirement . . . .' " (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262-1263 (Jones).) "The offer 'must carry with it some reasonable prospect of acceptance,' " because "[o]ne having no expectation that his or her offer will be accepted will not be allowed to benefit from a no‑risk offer made for the sole purpose of later recovering large expert witness fees." (Id. at pp. 1262-1263.)

"Whether a section 998 offer is reasonable must be determined by looking at circumstances when the offer was made"; the overall determination of "[w]hether a section 998 offer was reasonable and made in good faith is left to the sound discretion of the trial court." (Elrod, supra, 195 Cal.App.3d at pp. 699-700; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 134 (Nelson).) " '["]The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power." ' " (Nelson, at p. 136.)

Arguilez contends the trial court abused its discretion by ruling "without sound rationale or legal basis" that his section 998 offer was not made in good faith. Arguilez makes numerous arguments in support of this contention.

Arguilez first argues the record shows the trial court abused its discretion because the court stated that at the time of the offer "the defense appeared to accept modern case law that [Arguilez's liability] will be an issue of fact for the jury to determine," while in actuality the defense view (according to Arguilez) was that "the only reasonable interpretation of the undisputed facts" was that "it was ECRMC [alone] that was liable for the incorrect sponge count[]." We fail to see the significance of this criticism. In the quoted statement, the court simply recognized that at the time of the offer, even the defense acknowledged that Arguilez's liability was an "issue of fact" to be resolved by the jury. Arguilez's comment that, in hindsight, there never really was any question about liability does not demonstrate any error in the court's reasoning, much less an abuse of discretion.

Arguilez next points to the trial court's statement that a good faith offer "might have ranged anywhere between [$]5[,000] and $15,000, plus a waiver of costs," for a total of "up to [$]15[,000] to $25,000." Arguilez contends that his offer, which "ultimately had a value of over $22,537" (in claimed costs), should have been deemed reasonable because it satisfied even the trial court's own hypothetical standard. Again, we see no indication of an abuse of discretion. The court stated that a good faith offer, i.e., one that " 'carr[ied] with it some reasonable prospect of acceptance' " (Jones, supra, 63 Cal.App.4th at p. 1263), would have been in the range of $5,000 to $15,000 plus costs, while Arguilez's offer was zero dollars plus costs -- and so Arguilez's offer did not meet the court's hypothetical standard.

Arguilez also argues the trial court performed a "faulty analysis of Dr. Arguilez'[s] potential liability" as of the time his section 998 offer was made because it relied on the fact that the hospital had not yet settled, when in fact, "[g]iven ECRMC's admission of liability" in discovery responses, "it ma[de] little difference that a settlement agreement had not yet been reached." This contention is equally meritless. We can see no fault, and certainly no abuse of discretion in the trial court's suggestion that ECRMC's continued presence in the case increased the likelihood that a jury would find Arguilez had some comparative liability for damages. At the time of Arguilez's settlement offer a realistic possibility remained that ECRMC would appear at trial (e.g., to contest the amount of plaintiff's damages, or the percentage of Arguilez's comparative fault)^[15] and that Arguilez would be found partially liable. Consequently, ECRMC's presence in the case at the time of Arguilez's settlement offer was a proper and relevant factor for the trial court to consider in exercising its discretion not to award expert witness fees.

Finally, Arguilez argues that a section 998 offer that is more favorable than the result obtained at trial is presumed reasonable (see Elrod, supra, 195 Cal.App.3d at p. 700), and consequently his offer must be deemed reasonable. Arguilez ignores, however, that the presumption upon which he relies is not conclusive. Here, the trial court provided a reasoned explanation for why the presumption did not apply -- primarily that the case decided by the jury was significantly different from the case as it existed at the time of the section 998 offer. At the time of the offer ECRMC was still a defendant, while at trial Arguilez had "an empty chair defense, which" in the trial court's view, "significantly increased [Arguilez's] probability of prevailing." The trial court did not exceed its discretionary authority in so concluding.

In sum, Arguilez has failed to carry his burden of demonstrating that the trial court abused its discretion in determining that Arguilez's zero-dollar settlement offer was not a good faith offer for purposes of section 998.^[16]

C

The Trial Court Did Not Abuse Its Discretion in Denying Moukarzel's

Request for Expert Fees

Moukarzel contends that the trial court abused its discretion in denying his separate request for Dr. Kettel's expert fees. He contends that as an assistant surgeon, he was not liable for the mistaken sponge count, and thus his offer of zero dollars plus costs should have entitled him to reimbursement of expert witness fees.

Moukarzel's contention that that the trial court abused its discretion is meritless. Section 998 grants broad discretion to the trial court to grant or deny fees even if a good faith settlement offer is rejected. (§ 998.) In exercising its statutory discretion, the trial court considered proper factors, namely: the expert in question was retained by both Arguilez and Moukarzel and was primarily utilized "in the service of defending Dr. Arguilez"; the breakdown of costs was not clear;^[17] the fact that Arechiga dismissed Moukarzel as a defendant prior to trial; and "the nature and quality of the litigation and issues in dispute." Given the trial court's reasoned consideration of these appropriate factors, we cannot conclude that the denial of Moukarzel's request for expert fees constituted an abuse of discretion.^[18]

DISPOSITION

Affirmed. The parties are to bear their own costs on appeal.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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Analysis and review provided by Vista Real Estate Attorney.

^[1] All statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2] Our ability to present a complete statement of the facts is significantly hobbled by the limited appellate record.

^[3] The court informed the potential jurors: "[F]or your information only, earlier in the case, the El Centro Regional Medical Center, the hospital, was a named defendant in the cause. However, the hospital has previously admitted liability, and has settled with the plaintiff. [¶] The hospital is no longer a named defendant, and you should not allow that to interfere with your careful consideration of the evidence and your verdict in this case."

^[4] Whether the alleged error regarding the ECRMC settlement is characterized as evidentiary error or instructional error, the analysis is the same. (See Cal. Const., art. 6, § 13 [same prejudice standard applies to improper admission of evidence and "misdirection of the jury"].)

^[5] It is clear from the trial court's statements in ruling on the posttrial cost motions that, in its view, ECRMC's absence from the case significantly improved Arechiga's chances of obtaining a defense verdict. Nonetheless, we have no way of determining in the context of the evidence presented by both sides at trial, the closing arguments, the complete jury instructions, and any questions from the jury, what, if any, prejudice resulted from the court's informing the jury that ECRMC's absence at trial stemmed from a pretrial settlement. It is similarly impossible to determine the prejudice, if any, that flowed from the admission of the challenged expert testimony as we have not even been presented with a transcription of that expert's testimony.

^[6] In her reply brief, Arechiga makes no response to the argument in Arguilez's brief that she fails to demonstrate prejudice from the admission of expert testimony, effectively conceding the point. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 102 [improper " 'to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondent' "].)

With respect to her argument that she has shown no prejudice from the statements regarding the ECRMC settlement, Arechiga responds by implying, with citation to two cases, that a per se rule of reversal applies when evidence of a settlement is admitted. (See Albrecht v. Broughton (1970) 6 Cal.App.3d 173, 178 ["where the evidence is not relevant to any real issue, the advantage sought to be gained by its presentation must be recognized as unfair"]; Shepherd v. Walley (1972) 28 Cal.App.3d 1079, 1084 ["The use of such evidence to argue liability where liability is a disputed issue is clearly prejudicial error"].) The cases cited, however, do not establish a per se rule of reversal. The Albrecht court specifically considered whether the judgment was "saved by article VI, section 13, of the California Constitution," and concluded after an "examination ' "of the entire cause, including the evidence" ' " that prejudice had been demonstrated. (Albrecht, at p. 178.) In Shepherd, the court does state, without analysis or citation, that the erroneous admission of settlement evidence was "clearly prejudicial" (Shepherd, at p. 1084), but the court's opinion does not suggest, in contravention of the California Constitution, that a per se rule of reversal applies. Rather, it appears the Shepherd court simply determined the error at issue there required reversal in light of the record in that case. (Id. at pp. 1083-1084.)

^[7] All rule references are to the California Rules of Court.

^[8] In fact, it appears from the limited record before us that if Arechiga exercised her peremptory challenges, she did so after her for-cause challenge to Juror Mendoza was denied; thus she chose not to use one of her six peremptory challenges to remove Juror Mendoza from the panel, although she had the option to do so. (See § 226, subd. (c) ["All challenges for cause shall be exercised before any peremptory challenges may be exercised"].) In such circumstances, no claim of juror-selection error lies on appeal. (Slaughter, supra, 33 Cal.App. at p. 370 [rejecting challenge even though "[i]t is true that his peremptory challenges were finally exhausted, but not until he had accepted [the objectionable juror]"]; People v. Blair (2005) 36 Cal.4th 686, 741 [to "preserve a claim of error in the improper denial of a challenge for cause," an appellant "must: (1) use a peremptory challenge to remove the juror in question; (2) exhaust his or her peremptory challenges or justify the failure to do so; and (3) express dissatisfaction with the jury ultimately selected"].)

^[9] We are also unable to review the form of the requests made to the trial court or the reasons the court gave for purportedly denying the requests. (People v. Atwood (1963) 223 Cal.App.2d 316, 331, disapproved on another ground by People v. Carter (2003) 30 Cal.4th 1166, 1197.) Having not been provided with a full set of the jury instructions actually given, we also are unable to evaluate the jury's instructions as a whole, as we are required to do before we can conclude that the trial court erred by not giving any particular instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.)

^[10] In her reply brief, Arechiga argues that no record is required because under section 647, "an order made upon ex parte application, giving an instruction, refusing to give an instruction, or modifying an instruction requested" is "deemed excepted to." (Ibid.) However, this provision, which allows review of certain instructional errors absent objection, has no application here where the deficiency is not a failure to object below, but a failure to provide an adequate record on appeal.

^[11] We reject as woefully inadequate Arechiga's contention in her reply brief that "[t]he testimony of appellant fully establishes both appellant's right to the proposed jury instructions and the concomitant prejudice from their rejection." Not only does this block citation to 34 pages of transcript fail to satisfy the appellant's burden of citing specific portions of the appellate record by page number (rule 14(a)(1)(C)), it ignores that as an appellate court we are charged with "an examination of the entire cause, including the evidence" prior to any conclusion that an asserted error warrants reversal (Cal. Const., art. 6, § 13).

^[12] We decline as irrelevant to our decision, improper, or both, Arechiga's requests in her reply brief that we: "augment the reporter's transcript to show the polling of Juror Mendoza (and the other jurors)"; "take judicial notice that a surgeon directly supervises and controls and has the right to control operating room nurses during the course of an operation"; and take judicial notice of "the proposition that a woman has an intimate professional relationship with her ob/gyn." (Hayward Area Planning Assn. v. City of Hayward (2005) 128 Cal.App.4th 176, 182; rule 12.)

^[13] The trial court's rulings granting and denying costs requested by the defendants under other statutory provisions are not at issue in this appeal.

^[14] Under section 998, subdivision (c)(1), "[i]f 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, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial . . . or during trial . . . of the case by the defendant." (Italics added.)

^[15] As the trial court had noted earlier, the same written policy that Arguilez relied on to establish that it was the nurses' responsibility to perform the sponge count, also states that "[i]t is the physician and surgical team's responsibility to take all reasonable measures to protect the patient."

^[16] Arguilez also asks this court, "for policy reasons," to provide "much-needed guidance to the lower courts" by "sending the clear message" to counteract "decisions holding a minimal offer by a defendant disqualifies the defendant from recovering its expert witness fees." In fact, we are aware of no such decisions, and Arguilez cites none. Rather, the case law is clear that "[e]ven a modest or 'token' offer may be reasonable if an action is completely lacking in merit." (Nelson, supra, 72 Cal.App.4th at p. 134, italics added.) Here, the trial court determined not that Arguilez's token offer disqualified him from recovery under section 998, but that, inter alia, Arechiga's claim against her surgeon for negligence for failing to remove a sponge from her abdomen was not "completely lacking in merit" at the time of the offer. (Ibid.) As we explain above, that determination has not been shown to be an abuse of discretion.

^[17] The appropriate dollar amount of expert costs continues to be unclear on appeal. In the trial court, Arguilez sought $10,892 for Dr. Kettel's fees; Moukarzel sought $5,100. On appeal, Moukarzel and Arguilez jointly seek $10,894.76. They explain the discrepancy by stating that "[a]t the time Dr. Arguilez'[s] memorandum of costs was prepared, defense counsel anticipated that only one memorandum of costs would be filed," and therefore "included a request for Dr. Kettel's full expert fees."

^[18] Moukarzel's contentions -- that there is no case law that prohibits recovery of pre‑offer section 998 expert fees; the pre‑ and post‑offer fees were sufficiently detailed; and that while Dr. Kettel was retained on behalf of Moukarzel and Arguilez, his fees could have been divided in half -- are simply a misplaced effort to reargue the merits of the fees motion on appeal. The question before us is not how we would rule if confronted with the same motion, but whether the trial court abused its discretion in ruling as it did.