Opinion
B223323
10-12-2011
ELSAGAV SHAHAM, Plaintiff and Appellant, v. NEJAT ROSTAMI MEDICAL GROUP, INC., Defendant and Respondent.
Law Office of Susan Balistocky and Susan Balistocky for Plaintiff and Appellant. Theodora Oringher PC, Parry G. Cameron and Stacey L. Zill for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC365248)
APPEAL from a judgment of the Superior Court of Los Angeles County. Edward A. Ferns, Judge. Affirmed.
Law Office of Susan Balistocky and Susan Balistocky for Plaintiff and Appellant.
Theodora Oringher PC, Parry G. Cameron and Stacey L. Zill for Defendant and Respondent.
Plaintiff Dr. Elsagav Shaham (Dr. Shaham) sued defendant Nejat Rostami Medical Group, Inc. (the Medical Group) for breach of contract based on allegations that the Medical Group failed to pay Dr. Shaham for over 300 obstetric deliveries that he performed on the Medical Group's patients over a five-year period. The parties stipulated that if they could not settle the matter to their mutual satisfaction, the trial court would resolve the matter based on briefs submitted by each party. After the parties did not reach a settlement, Dr. Shaham moved to rescind the stipulation. The trial court denied Dr. Shaham's motion and, pursuant to the stipulation, resolved the matter based on the parties' briefs.
The trial court divided the deliveries at issue into three categories: (1) deliveries for which Dr. Shaham could not collect payment from the Medical Group because the four-year statute of limitations had expired on those claims; (2) deliveries for which Dr. Shaham could not collect payment from the Medical Group for reasons unrelated to the statute of limitations; (3) deliveries for which Dr. Shaham was entitled to payment from the Medical Group. For this third category of deliveries, the trial court awarded Dr. Shaham $68,500 in damages and $4,973.29 in interest.
On appeal, Dr. Shaham contends: (1) the trial court improperly denied his motion to rescind the stipulation; (2) the discovery rule tolled the statute of limitations on the first category of deliveries; (3) he is entitled to additional interest for the third category of deliveries; and (4) he is entitled to $9,565 in accounting fees that he paid his daughter during the litigation. Dr. Shaham does not dispute the trial court's ruling on the second category of deliveries. We affirm.
BACKGROUND
Dr. Shaham is board certified in obstetrics and gynecology. In 1997, Dr. Shaham entered into a Professional Services Agreement (Agreement) with the Medical Group. Under the Agreement, Dr. Shaham agreed to perform obstetric deliveries on patients belonging to the Medical Group, and the Medical Group agreed to provide "related services" to support Dr. Shaham's medical practice, including billing services. The Medical Group's patients included individuals with no medical insurance, private or managed care insurance, and government sponsored insurance such as Medi-Cal.
Typically, when Dr. Shaham performed a delivery on a patient, he would submit a "face page" to the Medical Group. This face page contained the information necessary for the Medical Group to perform its billing services, such as the patient's name, type of insurance, and the nature of the obstetric delivery performed. When the Medical Group received payment from the patient or the patient's insurer, it would forward a portion of that payment to Dr. Shaham. At the time the parties entered into the Agreement, Dr. Shaham agreed to accept $432 from the Medical Group for each vaginal or Caesarean section delivery performed, and $145 for each dilation and curettage (D&C) procedure performed. In 2001, the delivery rate was increased to $450 while the D&C procedure rate remained the same.
The parties terminated their relationship in December 2005. In January 2007, Dr. Shaham sued the Medical Group and P&J Medical Management, Inc., a third party that provided management services to the Medical Group. Dr. Shaham alleged in his action that the Medical Group failed to pay him for over 300 deliveries that he performed from 2001 through 2005.
Dr. Shaham subsequently dismissed P&J Medical Management, Inc. without prejudice. P&J Medical Management, Inc. is not a party to the present appeal.
On September 9, 2008, the parties entered into a stipulation with the following terms: (1) the parties would engage in a "settlement framework" whereby the Medical Group would go through its billing records and determine whether Dr. Shaham was entitled to payment for any of the deliveries at issue; (2) the Medical Group would provide documentary support for its analysis; (3) the Medical Group would pay Dr. Shaham for all unpaid deliveries, along with "ten percent (10%) per annum interest"; (4) the parties would act in good faith to resolve all disputed claims; (5) if the parties could not resolve all of the disputed claims, Dr. Shaham would waive his right to a jury trial and the parties would submit the remaining disputed claims to the court for resolution via briefs submitted by each party; and (6) Dr. Shaham would not seek punitive damages against the Medical Group.
In April 2009, the parties convened for a settlement meeting. During that meeting, the Medical Group informed Dr. Shaham that it had gone through its billing records and analyzed the payment status for each of the deliveries at issue. The Medical Group determined that some deliveries were not payable because they were barred by the statute of limitations, some deliveries were not payable because Dr. Shaham had already received payment for them, some deliveries were not payable because the Medical Group could not collect payment from the patient or her insurer, and the remaining deliveries were payable, and amounted to $49,935. To substantiate its analysis, the Medical Group provided Dr. Shaham with several charts detailing its findings.
Dr. Shaham disagreed with the Medical Group's analysis of his claims, and requested that the Medical Group pay the $49,935 as a sign of "good faith" while the parties continued to tussle over the remaining three categories of claims and the issue of whether the statute of limitations applied in this case. The Medical Group complied and delivered two checks totaling $49,935 in July 2009. Eventually, the parties failed to reach a global resolution and the matter proceeded to briefing before the trial court.
In August 2009, Dr. Shaham filed a "Brief Per Stipulation to Resolve All Issues." Dr. Shaham claimed that the Medical Group owed him $149,850 plus interest for unpaid deliveries, that the Medical Group had already paid $49,935, and that Dr. Shaham was entitled to the difference, i.e. $99,915, plus interest. Dr. Shaham also sought an additional $9,565 from the Medical Group, which was the amount that he paid his daughter for accounting services related to the lawsuit, for a grand total of $109,480 plus interest.
The Medical Group filed an opposition brief in which it argued that the statute of limitations barred recovery for deliveries that occurred in 2001 and 2002. The Medical Group conceded that it owed Dr. Shaham an additional $18,565, for unpaid deliveries plus interest, with the interest period running from September 9, 2008 through June 1, 2009.
In October 2009, Dr. Shaham moved to rescind the September 2008 stipulation. According to Dr. Shaham, the Medical Group failed to meet its obligations of: (1) going through its billing records to determine which of the claims made by Dr. Shaham were valid and (2) providing documentary support for its analysis. Dr. Shaham requested that the matter be tried before a jury.
The trial court denied Dr. Shaham's motion to rescind, ruling that "[t]here [was] no showing of a basis for rescinding" the stipulation. The trial court went on to rule, based on the submitted briefs and counsels' arguments, that Dr. Shaham was entitled to the $49,935 that the Medical Group had already paid, plus interest in the amount of $3,625.42 (calculated at 10 percent from September 9, 2008 through June 1, 2009), and an additional $18,565 plus interest in the amount of $1,347.87 (calculated at 10 percent from September 9, 2008 through June 1, 2009). The trial court found that the remaining claims made by Dr. Shaham were either barred by the statute of limitations, had previously been paid by the Medical Group, or were properly unpaid because the Medical Group had never collected payment from the patient or her insurer. The trial court also ruled, without explanation, that Dr. Shaham was not entitled to the $9,565 that he paid his daughter for accounting services related to the lawsuit.
Dr. Shaham timely appealed from the trial court's judgment.
DISCUSSION
I. Motion to Rescind the Stipulation
Dr. Shaham argues that the trial court improperly denied his motion to rescind the September 2008 stipulation. According to Dr. Shaham, the Medical Group breached its contractual obligations of going through its records to determine which of Dr. Shaham's claims were payable and providing documentary support for its analysis.
"[I]n contract law a material breach excuses further performance by the innocent party." (De Burgh v. De Burgh (1952) 39 Cal.2d 858, 863.) In order to rescind a contract on the ground that the other party has breached, the breach "must be 'material,' or go to the 'essence' of the contract before rescission is appropriate." (Wyler v. Feuer (1978) 85 Cal.App.3d 392, 404; Karz v. Department of P. & V. Standards (1936) 11 Cal.App.2d 554, 557 ["a person is not entitled to rescind or abandon a contract for an alleged breach of that contract when the breach does not go to the root of the consideration"].)
The trial court ruled that Dr. Shaham failed to demonstrate a basis for rescission. Implied in this ruling is the finding that the Medical Group did not commit a material breach of its contractual obligations under the stipulation. Where, as here, "the trial court has resolved a disputed factual issue, the appellate courts review the ruling according to the substantial evidence rule. If the trial court's resolution of the factual issue is supported by substantial evidence, it must be affirmed." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [applying substantial evidence standard of review to trial court's ruling pertaining to parties' stipulation].)
Substantial evidence supports the trial court's finding. Stacey Zill, the Medical Group's attorney, submitted a declaration under penalty of perjury in which she averred to the following: "I analyzed each and every claim at issue in the above-captioned lawsuit. In so doing, I prepared detailed charts setting forth the claims at issue and the parties' respective positions . . . ." Attached to Ms. Zill's declaration were several charts setting forth in great specificity the claims that had been paid to Dr. Shaham, the claims that had not been paid, and the claims to which Dr. Shaham was entitled payment. These charts, along with Ms. Zill's declaration, provided a sufficient evidentiary basis from which the trial court could reasonably conclude that the Medical group fulfilled its obligations pursuant to the stipulation. Accordingly, we affirm the trial court's denial of Dr. Shaham's motion to rescind the stipulation.
II. Statute of Limitations
Civil actions are governed by statutes of limitations that dictate the time period within which a cause of action may be commenced. (Code Civ. Proc., § 312.) Where, as here, the cause of action is based on an alleged breach of contract, the statute of limitations is four years. (Code Civ. Proc., § 337.)
For all statutes of limitations, the statute begins to run when the "cause of action accrues." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox).) "Generally speaking, a cause of action accrues at 'the time when the cause of action is complete with all of its elements.'" (Ibid.) "In ordinary tort and contract actions, the statute of limitations . . . begins to run upon the occurrence of the last element essential to the cause of action. The plaintiff's ignorance of the cause of action . . . does not toll the statute." (Neel v. Magana, Olney, Levy, Cathcart & Gelfand(1971) 6 Cal.3d 176, 187, fn. omitted.) "An important exception to the general rule of accrual is the 'discovery rule,' which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action." (Fox, supra, at p. 807.)
"A plaintiff has reason to discover a cause of action when he or she 'has reason at least to suspect a factual basis for its elements.'" (Fox, supra, 35 Cal.4th at p. 807; see also Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897 ["the uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim"].) "Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period." (Fox, supra, at p. 807.) "In so using the term 'elements,' we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them." (Ibid.)
The trial court ruled that the statute of limitations barred some of the claims for unpaid deliveries made by Dr. Shaham. Implied in this ruling is the court's finding that the delayed discovery rule did not apply because Dr. Shaham had reason to "at least suspect that a type of wrongdoing ha[d] injured" him. (Fox, supra, 35 Cal.4th at p. 807.) Substantial evidence supports this finding. Specifically, Vania Boyadjian, the Medical Group's controller during the time period that spanned the parties' professional relationship, averred under penalty of perjury to the following: Dr. Shaham had the responsibility of submitting a face page to the Medical Group after every delivery that he performed. If he failed to submit a face page for any particular procedure, the Medical Group could not seek payment for that procedure. When the process worked properly, (e.g., Dr. Shaham timely submitted a face page, and the Medical Group timely submitted his claim to Medi-Cal or another insurer for collection), Dr. Shaham would receive payment from the Medical Group approximately 30 to 45 days after the procedure. Over the course of eight years, Dr. Shaham "regularly inquired about the status of payments" because his own record keeping was "poor." Boyadjian or a Medical Group staff member would field Dr. Shaham's inquiries, which were "numerous," and confirm to him and his staff whether the Medical Group had already paid him for the procedure in question, whether the payment was forthcoming, or whether there would be no payment at all due to lack of insurance.
Boyadjian's declaration demonstrates that Dr. Shaham was in a position to know, or at least reasonably suspect, if the Medical Group did not pay him for a particular delivery soon after he performed it. Contrary to Dr. Shaham's assertions that he had no reason to inquire about whether the Medical Group paid him for a particular procedure because of the parties' "trust" and "fiduciary" relationship, the evidence shows that Dr. Shaham regularly inquired about whether the Medical Group paid him and the Medical Group regularly responded to his inquiries.
Dr. Shaham relies extensively on April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805 (April), but that case is distinguishable. In April, the producer of a television program sued a television station shortly after discovering that the station had erased videotapes of the program, which was in violation of the parties' syndication agreement. (Id. at p. 814.) The television station moved for judgment on the pleadings, arguing that it had erased the tapes more than four years before the producer brought suit, and thus the statute of limitations barred his claim for breach of contract. The trial court granted the motion, and the Court of Appeal reversed. (Id. at p. 815.) The appellate court reasoned that because the station had "exclusive custody" of the tapes and had erased them "in secret," the producer could not have reasonably known or suspected that the station had erased the tapes when it did. (Id. at p. 832.) The statute of limitations began to accrue only after the producer learned of the erasure, which occurred shortly before the producer filed suit. (Ibid.) Here, in contrast, the Medical Group did not have "exclusive custody" over Dr. Shaham's billing records and the breaches to the Agreement did not occur in "secret." Dr. Shaham submitted a face page each time he performed a delivery, frequently called the Medical Group's controller about the status of payments, and was updated on whether payment was forthcoming or not.
As a fallback argument, Dr. Shaham argues that the $49,935 payment made by the Medical Group is a written acknowledgement of debt that renews the statute of limitations. Dr. Shaham did not raise this argument below and thus has waived it on appeal. (Cinnamon Square Shopping Center v. Meadowlark Enterprises (1994) 24 Cal.App.4th 1837, 1844 ["'As a general rule an appellate court will consider only such points as were raised in the trial court, and this rule precludes a party from asserting, on appeal, claims to relief not asserted or asked for in the court below'"].)
III. Interest
The stipulation between the parties provided that Dr. Shaham was entitled to "ten percent (10%) per annum interest" on all monies owed to him by the Medical Group. But the stipulation did not explicitly specify the date on which interest on the monies would begin to accrue. The trial court determined that interest began to accrue on September 9, 2008, the date that the parties entered into the stipulation. Dr. Shaham argues on appeal that the trial court abused its discretion by selecting that date, and should have instead calculated interest starting from "when the payment for a particular delivery became due or at least from January 25, 2007 when the complaint was filed."
"[W]here an instrument is susceptible of different interpretations, the one adopted by the trial tribunal, if it appears to be consistent with the intent of the parties, and not the result of an abuse of discretion, will not be disturbed by an appellate court." (Medico-Dental etc. Co. v. Horton & Converse (1942) 21 Cal.2d 411, 430.)
Here, the Medical Group's attorney averred in a declaration that the parties intended for interest to begin accruing on the date that they entered into the stipulation, i.e., September 9, 2008. Dr. Shaham averred in his declaration that the parties intended for interest to begin accruing on the date that the delivery in question took place. The declarations presented a factual dispute that the trial court resolved in favor of the Medical Group. Substantial evidence supported the trial court's resolution, and we will not disturb it on appeal.
Dr. Shaham also cites Civil Code section 3287, subdivision (b) in support of his argument that the trial court abused its discretion by selecting September 9, 2008, as the date on which interest began to accrue. That code section provides: "Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed." Here, the trial court complied with the statute by exercising its discretion to fix September 9, 2008, as the date on which interest began to accrue based on the parties' intentions. That date was "prior to the entry of judgment" and "no . . . earlier than the date the action was filed." (Civ. Code, § 3287, subd. (b).)
IV. Accounting Fees
Dr. Shaham argues that the trial court abused its discretion by not reimbursing him for the $9,565 in accounting fees that he paid to his daughter during the litigation. Dr. Shaham neither explains why he is entitled to this reimbursement, nor does he cite relevant legal authority.
"Every argument presented by an appellant must be supported by both coherent argument and pertinent legal authority. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) If either is not provided, the appellate court may treat the issue as waived. (Ibid.)" (Kaufman v. Goldman (2011) 195 Cal.App.4th 734, 743.) We deem this issue waived.
DISPOSITION
The judgment is affirmed. Respondent Nejat Rostami Medical Group, Inc. is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD, Acting P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.