Martello v. Merliss CA2/1 ( 2021 )

Filed 4/1/21 Martello v. Merliss CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JEANNETTE MARTELLO, B300268
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC 589157)
v.
JOSHUA MERLISS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard J. Burdge, Jr., Judge. Affirmed.
____________________________
Crawford Law Group and Daniel A. Crawford for Plaintiff
and Appellant.
Cheong, Denove, Rowell, Bennett & Hapuarachy and Wilkie
Cheong for Defendant and Respondent.
____________________________
Plaintiff and appellant Jeannette Martello challenges the
trial court’s grant of summary judgment in favor of defendant
and respondent Joshua Merliss. Martello performed hand surgery
on Stella Madrid to correct injuries Madrid suffered from a faulty
garage door. Merliss, who is an attorney, represented Madrid
in a personal injury lawsuit and ultimately obtained a $100,000
settlement from the insurance company representing Madrid’s
landlord. When Martello was unable to obtain a share of the
settlement proceeds as compensation for the medical work she
performed, she filed suit against Merliss, alleging that he made
false statements that prevented her from claiming a portion of
the settlement.1 Martello contends that there were triable issues
of material fact as to all of her claims, and that the trial court
therefore erred by granting summary judgment in favor of
Merliss. We affirm.
FACTS AND PROCEEDINGS BELOW
In June 2010, the garage door of the house Madrid
was renting malfunctioned, severing the tip of one of Madrid’s
fingers. Madrid was taken to a hospital, where Martello
successfully operated on her. As a condition of operating on her,
Martello required Madrid to handwrite and sign a statement
acknowledging that Martello was an independent contractor, and
1 In addition to Martello’s suit against Merliss, this case
includes a cross-complaint by Madrid against Martello, alleging
that Martello improperly interfered with Madrid’s ability to
collect her settlement check. In a prior appeal (Martello v. Merliss
(Dec. 13, 2017, B277570) [nonpub. opn.]), we affirmed the trial
court’s denial of an anti-SLAPP motion to dismiss (see Code Civ.
Proc., § 425.16) the cross-complaint. Except when necessary, we
limit our discussion in this opinion to the facts and issues relevant
to Martello’s claims against Merliss.
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that Madrid was financially responsible for any of Martello’s bills
that her insurance did not pay. Martello did not tell Madrid how
much she would charge.
Martello suggested that Madrid should consult with Merliss
about representing her in a personal injury lawsuit against her
landlord. Shortly after the injury, Madrid met with and retained
Merliss to represent her. Martello had previously referred
patients to Merliss, with the understanding that if Merliss
recovered any money for the patient, Martello would receive
payment for her medical bills from the proceeds. In addition,
Merliss represented Martello in other litigation, including cases in
which Martello sued to collect unpaid debts from former patients.
Three of these cases were active from 2010 until January 2012,
while Merliss was representing Madrid. Although Martello had a
law degree, Merliss sometimes gave her legal advice in situations
where she had not formally hired him to represent her.
In September 2010, Madrid switched to a different doctor
for continuing treatment of her hand injury. In February 2011,
Martello sent Madrid a bill for $27,750 for the services she had
rendered. Madrid did not pay the full amount, and over the next
two years, Martello made several efforts to collect the debt. These
included email correspondence with Merliss in which Martello
attempted to enlist Merliss’s help in convincing Madrid to sign a
lien agreement to allow Martello to collect her payment from any
future proceeds from Madrid’s case. Martello also billed Madrid’s
health insurance provider, which ultimately sent Madrid a check
for $1,375, but refused to pay any additional amount. Madrid
made two installment payments totaling $350 toward Martello’s
bill, but she never forwarded to Martello the money she had
received from her insurance company. After April 2012, Madrid
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made no more payments to Martello, and she never signed the
lien agreement Martello sent to Merliss.
On May 15, 2012, Merliss filed Madrid’s personal injury
lawsuit against her landlord. In July 2014, Martello filed a notice
of lien in that case, claiming under penalty of perjury that she had
“an outstanding medical lien in the amount of $32,130.”
On May 22, 2015, Merliss wrote an email to Martello
noting that there was a settlement conference in Madrid’s lawsuit
scheduled for the following day and asking, “How much is the
least you will accept on your bill so that I can let [Madrid] know
and make it a topic at the conference. Hopefully, you will get
paid. Please be reasonable and realistic.” At that settlement
conference, the parties to the personal injury suit settled the
case for $100,000. Because of Martello’s filed notice of lien, the
insurance company representing Madrid’s landlord sent Merliss a
check for $32,130 payable to both Martello and Merliss. Martello
believed she was entitled to the full amount of the payment.
Madrid disagreed and was willing to allow Martello only $7,000
as full satisfaction of the debt. Martello refused the offer and also
refused to endorse the check. With the proceeds of the check still
unclaimed two years later, the insurance company interpleaded
the $32,130 with the trial court, where the money remains
pending the outcome of litigation.
On July 23, 2015, Martello filed suit against Merliss,
alleging causes of action for fraud, negligent misrepresentation,
breach of fiduciary duty, intentional interference with contractual
relations, and unfair business practices. The gravamen of all of
her claims was that Martello had a written lien agreement with
Madrid, but that Merliss had improperly interfered with her
ability to collect the money she was owed by making false and
misleading statements. On February 27, 2019, Merliss filed a
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motion for summary judgment, which the trial court granted. The
trial court concluded that there was no evidence that Martello had
a medical lien for the proceeds of the personal injury suit, nor that
Merliss had a fiduciary duty to her. The court also determined
that no evidence supported that Merliss made false statements
to Martello about her rights regarding her claimed lien, and that
any other allegedly false statements were outside the scope of the
allegations in the complaint.
DISCUSSION
Martello contends that the trial court erred by granting
summary judgment in favor of Merliss because there were triable
issues of material fact with respect to all of her causes of action.
We begin by addressing an issue common to all of Martello’s
causes of action, namely whether Martello had a lien to the
proceeds of Madrid’s personal injury suit. We then consider each
of Martello’s causes of action in turn, and conclude that the trial
court did not err. We thus affirm the judgment.
A. Principles of Summary Judgment Law
Summary judgment is proper when there are no triable
issues of material fact and the moving party is entitled to
judgment as a matter of law. (Nealy v. City of Santa Monica
(2015) 234 Cal.App.4th 359, 370; Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 843 (Aguilar); Code Civ. Proc., § 437c,
subd. (c).) A defendant moving for summary judgment bears
an initial burden of showing that one or more elements of the
plaintiff ’s cause of action cannot be established or that there
is a complete defense to that cause of action. (Nealy v. City of
Santa Monica, supra, 234 Cal.App.4th at p. 370; Aguilar, supra,25 Cal.4th at p. 849.) If the defendant meets this burden, the
plaintiff has the burden to demonstrate one or more triable issues
5
of material fact as to the cause of action or defense. (Aguilar,
supra, at p. 849.) A triable issue of material fact exists “if, and
only if, the evidence would allow a reasonable trier of fact to find
the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Id. at p. 850.)
In reviewing summary judgment, “[w]e review the trial
court’s decision de novo, liberally construing the evidence in
support of the party opposing summary judgment and resolving
doubts concerning the evidence in favor of that party.” (State of
California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017–1018.)
B. There Is No Evidence Martello Had a Lien over
the Proceeds of Madrid’s Lawsuit
A common question with respect to all of Martello’s causes
of action is whether she had a lien on the proceeds of Madrid’s
personal injury suit.
After arguing before the trial court that she had a lien,
Martello “concede[d]” in her opening brief that the document
Madrid signed before undergoing surgery on June 4, 2010 “did not
create a lien.” Apart from a single, unsupported claim that she
“arguably had an equitable lien on Madrid’s settlement money,”
Martello made no other argument in her opening brief to support
that she had a lien. In her reply brief, Martello argued in support
of her claim of a lien on two new grounds. She argued that she
had an equitable lien, and also that she had a “consensual lien”
under Nicoletti v. Lizzoli (1981) 124 Cal.App.3d 361 (Nicoletti).
“ ‘ “Points raised in the reply brief for the first time will not
be considered, unless good reason is shown for failure to present
them before.” ’ ” (Shade Foods, Inc. v. Innovative Products Sales
& Marketing, Inc. (2000) 78 Cal.App.4th 847, 894–895, fn. 10.)
Martello has presented no explanation for her failure to make
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her arguments regarding the lien in her opening brief. She has
therefore forfeited them.2
Martello’s claim also fails on the merits because she has
failed to produce any evidence that she had or is entitled to an
equitable lien. Courts have held that an equitable lien existed in
cases where the parties did not have an explicit lien agreement,
but only when the parties demonstrated that they intended for a
party to have a right to a property or source of funds as security
for an obligation. Thus, in a case involving an attorney’s claim to
the proceeds of a client’s lawsuit, the court explained that “[t]he
real question in each case is, whether or not the parties have
contracted that the lawyer is to look to the judgment he may
secure as security for his fee. If so, an equitable lien is created.”
(Wagner v. Sariotti (1943) 56 Cal.App.2d 693, 697.) The same
is true with real estate liens: “An equitable lien may be imposed
upon real property where the parties intend the property operate
as security for the obligation.” (Isaac v. City of Los Angeles
(1998) 66 Cal.App.4th 586, 598.) In a case similar to this one,
where there was insufficient evidence that a plaintiff ever signed
an agreement to allow her psychologist to recover his fees from
the proceeds of the plaintiff ’s lawsuit, the court affirmed the
trial court’s refusal to impose an equitable lien in favor of the
psychologist. (See Sperber v. Robinson (1994) 26 Cal.App.4th 736,
743–744.) At a minimum, for an equitable lien to be appropriate,
2 Martello’s one-sentence assertion, with no argument or
citation to authority, that she might have had an equitable lien,
was insufficient to preserve this issue. (See Trinkle v. California
State Lottery (2003) 105 Cal.App.4th 1401, 1413 [“unless a party’s
brief contains a legal argument with citation of authorities on
the point made, the court may treat it as waived and pass on it
without consideration”].)
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the party claiming the lien must be able to show that she believed
a lien existed, that the opposing party was aware of this belief and
allowed it to persist. (See County of Los Angeles v. Construction
Laborers Trust Funds for Southern California Admin. Co. (2006)
137 Cal.App.4th 410, 415.)
In this case, Martello has produced no evidence that
Madrid ever agreed to give her a lien to the proceeds of the
lawsuit. The only written agreement we have seen in the record
is a handwritten document that Martello required Madrid to
sign in the hospital before Martello would agree to operate on
Madrid’s hand. The document provides, “I have been informed by
Dr. Martello that she is not an employee of Huntington Memorial
Hospital. I have been told that Dr. Martello is an independent
contractor. There will be a separate bill sent to me for her . . .
services. As a courtesy to me, Dr. Martello’s office will bill my
insurance company. I accept financial responsibility for any
portion of Dr. Martello’s bill that is not covered by my insurance.”
The document makes no mention of a potential lawsuit, nor any
indication that Martello would have any interest in its proceeds.
Subsequently, in November 2011, March 2012, and August
2012, Martello emailed Merliss to ask him to convince Madrid to
sign a lien agreement. On the latter two occasions, she attached
a document labeled “Stella Madrid Medical Lien” for Madrid
to sign. This document, if Madrid had signed it, would have
authorized Merliss to pay Martello’s bills “and to withhold” the
amount of the bills “from any settlement, judgment or verdict”
obtained in Madrid’s lawsuit. Madrid claims that she refused
to sign the agreement, and Martello has produced no evidence to
the contrary.
Thus, there is no evidence that Madrid ever intended to
allow Martello to look to the proceeds of the personal injury suit
8
as a source of payment for her medical bills, nor has Martello
presented any evidence that she reasonably expected a judgment
or settlement of the case to secure her right to payment. Thus,
Martello has failed to create a triable question of material fact
that she is entitled to an equitable lien.
Martello also contends in her reply brief that, under
Nicoletti, supra, 124 Cal.App.3d 361, a doctor who provides
medical services to a patient automatically obtains a lien over any
proceeds from a personal injury lawsuit arising from the patient’s
injury. This is a misreading of the case law. In Nicoletti, the
court held that consensual medical liens took precedence over a
judgment creditor’s claim to the proceeds of a lawsuit, regardless
of whether the doctors had filed a financial statement to perfect
the lien. (See id. at pp. 369–370.) The case did not address the
requirements for creating a medical lien, either contractual or
equitable, and it certainly does not stand for the proposition that
“consensual liens” (id. at p. 369) can be created without the
consent of the party to be charged. We found no merit when
Martello made the same argument in her previous appeal (see
Martello v. Merliss, supra, B277570), and we reach the same
conclusion now.
C. Fraud and Negligent Misrepresentation Claims
Martello argues that there is a triable question of material
fact on her claims of fraud and negligent misrepresentation
because Merliss made false statements to dissuade her from filing
suit against Madrid for breach of contract or unjust enrichment.
In May 2015, just after Madrid’s personal injury suit settled,
Martello contends that Merliss misled her by listing only three
alternatives for her to pursue:
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“1. You can accept $7,000.00 in full satisfaction of your lien.
“2. We can go to binding arbitration.
“3. I can file a motion with the trial court asking that your
lien be stricken. Once it is, [the insurance company] will release
the $32,000.00.”
Merliss urged Martello “to accept the $7,000.00 which is
more than fair considering the amount the case settled for and
your risk of receiving only $1,375.00 should the matter be
litigated or proceed to arbitration.”3
According to Martello, Merliss failed to mention “an obvious
fourth option, which was to sue Madrid to collect on the financial
responsibility agreement.” In addition, Martello claims that
a month later, Merliss incorrectly told her that “the statute of
limitations is long over for you to sue” Madrid. And she argues
that when Martello threatened to sue Madrid at an earlier point
in the case in August 2012, Merliss misled her by urging her to
“[s]low down.”
These arguments fail because Martello did not raise them
before the trial court. “Though this court is bound to determine
whether defendants met their threshold summary judgment
burden independently from the moving and opposing papers, we
are not obliged to consider arguments or theories . . . that were
not advanced by plaintiffs in the trial court. ‘Generally, the rules
relating to the scope of appellate review apply to appellate review
of summary judgments. [Citation.] An argument or theory
will . . . not be considered if it is raised for the first time on appeal.
[Citation.] Specifically, in reviewing a summary judgment, the
appellate court must consider only those facts before the trial
3$1,375 was the amount of the payment Madrid received
from the insurance company and did not forward to Martello.
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court, disregarding any new allegations on appeal. [Citation.]
Thus, possible theories that were not fully developed or factually
presented to the trial court cannot create a “triable issue” on
appeal.’ (American Continental Ins. Co. v. C & Z Timber Co.
(1987) 195 Cal.App.3d 1271, 1281 . . . .) ‘A party is not permitted
to change his [or her] position and adopt a new and different
theory on appeal. . . .’ [Citation.]” (DiCola v. White Brothers
Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676
(DiCola).)
In her proceedings before the trial court, Martello did not
present her theory that Merliss defrauded her by attempting
to dissuade her from filing suit against Madrid for breach of
contract or unjust enrichment. Instead, Martello argued an
entirely different theory of fraud, claiming that “Merliss made
written and oral statements to [Martello] about her rights under
her lien agreement with . . . Madrid.” (Capitalization omitted.)
She alleged that Merliss falsely told her “that her lien claim was
subordinate to his own claim for attorney’s fees; the amount of
her claim was compromised due to the limits on his own claim
for attorney’s fees; and, [Martello] would have to agree to discount
her lien claim substantially in order to receive any payment.”
To permit Martello to argue a completely different theory now,
when Merliss did not have an opportunity to challenge them
below, “ ‘would not only be unfair to the trial court, but manifestly
unjust to the opposing litigant.’ ” (DiCola, supra, 158 Cal.App.4th
at p. 676.)
D. Breach of Fiduciary Duty
Martello claims that the trial court erred by finding
no triable question of material fact on her claim of breach of
fiduciary duty. According to Martello, Merliss had a fiduciary
11
duty to her as a current or former client, and he breached his duty
by violating a number of California Rules of Professional Conduct
in the Madrid case. Martello’s argument fails because to state a
claim for breach of fiduciary duty, a plaintiff must not only show
that a fiduciary duty existed and that the defendant breached
it, but also “damage proximately caused by that breach.” (IIG
Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 646.) Martello has
failed to create a triable question of material fact as to this last
requirement.4
Martello claims that Merliss caused damages by preventing
her from enforcing her right to collect from Madrid, but the
evidence does not support these claims. The email correspondence
between the parties in 2011 and 2012 shows that Merliss
accurately described the law and Martello’s legal rights. When
Martello wrote to Merliss in February 2011 complaining that
Madrid would not pay her, he advised her to “put the balance
owed by her on a lien.” In March 2012, when Martello complained
that Madrid would not sign the lien agreement, Merliss
encouraged her to “[s]end her a statement and lien,” and “[t]ell her
4 The trial court did not rely on the question of causation as
a ground for granting summary adjudication in favor of Merliss
on this cause of action. We therefore invited the parties, pursuant
to Code of Civil Procedure section 437c, subdivision (m)(2) “to
present their views on the issue by submitting supplemental
briefs.” In her supplemental brief, Martello argued for the first
time that Merliss breached his fiduciary duty by disclosing
confidential information and engaging in other misconduct in
connection with his motion to have Martello declared a vexatious
litigant. Martello did not make this claim either in her complaint
or in her opposition to summary judgment. We therefore
disregard it now. (See DiCola, supra, 158 Cal.App.4th at p. 676.)
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you will forego collection if she signs the lien, [and] mails a copy
to you and one to me.” In August 2012, Merliss told Martello that
Madrid “has to sign [the lien] for it to be enforceable.” Martello
has not presented any legal basis that these statements were
an incorrect description of the facts or law. In the same August
2012 email conversation, when Martello threatened to obtain
a judgment against Madrid if she did not agree to a lien, Merliss
asked Martello to “[s]low down” so that he could discuss the issue
with Madrid, and told Martello that “[i]f she will not agree, I will
let you know.” Martello could not have reasonably interpreted
this as a signal to wait for years before attempting to enforce her
claim against Madrid.
Nor is there evidence that Merliss’s actions in settling
Madrid’s case in 2015 damaged Martello. Martello alleges that
Merliss attempted to mislead her by demanding that she reduce
her claim against Madrid to $7,000, without noting that she could
sue Madrid for breach of contract or unjust enrichment. But these
communications took place in May and June of 2015. Martello
sued Merliss for fraud and breach of fiduciary duty in July.
There is no evidence that Martello heeded Merliss’s advice to her
detriment, nor that any relevant statute of limitations expired in
the intervening month.
Martello alleges that she suffered damages in additional
ways. She claims that Merliss harmed her by failing to pursue
collection efforts against Madrid, but there is no evidence that
Merliss ever agreed to represent Martello to collect from Madrid.
Martello also claims that she was damaged because Madrid
cashed an insurance check for $1,375 and refused to forward the
payment to Martello, and that the insurance company decided not
to pay the remaining $27,750 bill from Martello. But there is no
13
basis for concluding that Merliss’s alleged breach of fiduciary duty
caused Martello to lose these payments.
E. Intentional Interference with Contractual
Relations
Martello claims that the trial court erred by finding
no triable question of material fact on her claim of intentional
interference with contractual relations. According to Martello,
Merliss interfered with her contractual relationship with Madrid
by advising Madrid to stop making partial payments toward
the amount she owed Martello. We reject this claim because no
reasonable factfinder could draw the conclusion Martello urges on
the basis of the evidence she has produced.
Merliss denied advising Madrid to stop making payments
on Martello’s bill. In order to survive summary judgment,
Martello was required to raise a triable question of material fact
on this issue, or in other words, to present enough evidence to
“allow a reasonable trier of fact to find the underlying fact in favor
of ” her. (Aguilar, supra, 25 Cal.4th at p. 850.) She claims that
she achieved this via circumstantial evidence. Because Madrid
ceased making payments on Martello’s bill just before Merliss
filed the personal injury suit on her behalf, she argues that a
factfinder could reasonably infer that Merliss advised Madrid to
stop making payments.
We agree with Martello that the temporal proximity of
events can support an inference of causation. (See City of Modesto
v. Dow Chemical Co. (2018) 19 Cal.App.5th 130, 153-154.) But
in this case, the evidence is too flimsy to support a reasonable
inference in Martello’s favor. Martello claims that Madrid made
“several” payments toward her bill, but according to Martello’s
own declaration, there were exactly two payments: Madrid sent
her a check for $300 in December 2011, and another for $50 in
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April 2012. Although Madrid wrote a letter accompanying her
first payment stating that she planned to pay Martello “twice a
month,” she never did.
Nor did Madrid stop paying Martello when Merliss began
representing her. Merliss agreed to take her case in June 2010,
more than a year before Madrid sent the first payment. Indeed,
by the time Madrid made the first payment, Merliss had
corresponded with Martello twice regarding Madrid’s debt, first
in February 2011, and again in November of the same year.
If Merliss had advised Madrid not to pay Martello, the logical
time to do so would have been after one of these conversations.
Martello again contacted Merliss regarding Madrid’s debt in
March 2012, and in April 2012, Madrid sent Martello the second
payment. A few weeks later, Merliss filed Madrid’s lawsuit.
Given this sequence of events, there is no reasonable basis for
inferring that Merliss advised Madrid to stop making payments.
F. Unfair Business Practices
Martello’s final cause of action was for unfair business
practices. In her appellate brief, Martello contends that Merliss’s
alleged violations of the California Rules of Professional Conduct
constituted unlawful or fraudulent business practices under
Business and Professions Code section 17200. This claim
fails both because Martello has failed to raise the issue in her
pleadings, and because she has failed to create a triable question
of material fact as to causation.
In her complaint, Martello alleged that Merliss had
“engaged in unfair or fraudulent conduct concerning [Martello’s]
rights under her lien agreement with . . . Madrid.” But there is
no indication in the complaint that the alleged unfair business
practices were connected with Merliss’s alleged violations of the
15
California Rules of Professional Conduct, as Martello alleges on
appeal.
“[S]ummary judgment cannot be denied on a ground not
raised by the pleadings.” (Bostrom v. County of San Bernardino
(1995) 35 Cal.App.4th 1654, 1663.) As the court explained in
Bostrom, this is not a burdensome rule: “If either party wishes
the trial court to consider a previously unpleaded issue in
connection with a motion for summary judgment, it may request
leave to amend. [Citations.] Such requests are routinely and
liberally granted. However, ‘ “ ‘[i]n the absence of some request
for amendment there is no occasion to inquire about possible
issues not raised by the pleadings.’ ” ’ [Citations.] Declarations
in opposition to a motion for summary judgment ‘are no substitute
for amended pleadings.’ ” (Id. at pp. 1663–1664.) Martello made
no such motion to amend the pleadings, but simply changed her
theories whenever she found it helpful to do so. It is not fair
either to her opponent in the litigation, or to the court to allow
her to present an ever moving target.
Martello’s argument also fails because she has failed to
produce evidence of causation. California’s unfair competition law
allows for a private citizen to bring a cause of action, but only if
the person “has lost money or property as a result of the unfair
competition.” (Bus. & Prof. Code, § 17204, italics added.) This
language “imposes a causation requirement; that is, the alleged
unfair competition must have caused the plaintiff to lose money
or property.” (Hall v. Time Inc. (2008) 158 Cal.App.4th 847, 849.)
As we have explained above in the section on breach of fiduciary
duty (see Discussion part D, ante), Martello has failed to create
a triable question of material fact as to whether Merliss’s alleged
violations of the California Rules of Professional Conduct caused
her any damages. Thus, Martello has also failed to produce
16
evidence that those same alleged violations caused her to suffer
a loss for purposes of her claim of unfair business practices.
DISPOSITION
The judgment of the trial court is affirmed. Respondent is
awarded his costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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