Marik v. Makkink
Filed 2/24/12 Marik v. Makkink CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JAROSLAV
J. MARIK,
Plaintiff and Appellant,
v.
YVONNE MAKKINK et al.,
Defendants and Respondents.
B225884
(Los Angeles County
Super. Ct. No. SC097032)
APPEAL from
a judgment of the Superior Court of
County, Elizabeth A. Grimes, Judge. Affirmed.
Law Offices
of Richard Weiss and Richard Weiss for Plaintiff and Appellant.
Carlsen Law
Corporation and Miles Carlsen for Defendants and Respondents.
______________________________
Doctor Jaroslav J. Marik
appeals from a judgment after a bench
trial to determine payments owed to him under two contracts for medical and
surrogacy services. The court awarded
appellant $15,446.88 against respondent Yvonne Makkink but made no award
against respondent Gary Carlson.
Appellant argues that the court abused its discretion in not responding
to his objections to the statement of decision.
By itself, the court’s failure to respond to appellant’s objections does
not constitute reversible error.
Appellant insists he does not challenge the sufficiency of the evidence;
yet he also claims that the court’s statement of decision is not supported by
the evidence. Appellant’s scant
citations to the record and reliance on arguments made in respondents’ trial
briefs fail to substantiate this claim.
His alternative argument—that the statement of decision is inconsistent
with the court’s own factual findings—is based on a selective citation of these
findings. We conclude that appellant has
not met his burden of showing reversible error, and affirm the judgment.
Appellant,
an obstetrician-gynecologist and fertility specialist doing business as Tyler
Medical Clinic, entered into a contract for medical services with Makkink in
1999. Appellant’s patient ledger for
Makkink indicates that she owed him $44,665.88 as of July 31, 2002, and that
a payment of $30,000 was applied to this amount on July 31, 2002, reducing the balance to
$14,665.88. This credit was reversed on April 17, 2006. Additionally, Makkink owed a total of $781
for office visits in December 2003, January 2004, and February 2004. Under the contract, finance charges of 10
percent per year were assessed on unpaid bills older than 120 days.
In 2001,
respondent Carlson and appellant on behalf of Tyler Medical Clinic signed a
Carlson, was listed as a party to the retainer agreement but did not sign
it. Under this agreement, Tyler Medical
Clinic was to provide surrogacy services for a projected fee of $40,400, with a
maximum additional fee of $3,500 (plus actual surrogate expenses) for any
additional surrogates. If the $40,400
projected fee exceeded the actual expenses, respondents were to be
reimbursed. On August 2, 2001 and March
29, 2002, Tyler Medical Clinic sent respondents statements of the various
projected costs that comprised the $40,400 fee, including the following: legal fee ($2,750); administration fee
($1,975); surrogate fee ($18,000); surrogate screening fee ($2,500); surrogate
monthly expenses ($2,400); transfer ($1,200); embryologist ($3,600); insurance
for surrogate ($3,400); and fees for office visits, laboratory, and ultrasound
services ($4,575). The first statement
reflected a payment of $4,000. A payment
of $30,000 appeared on the second statement, leaving a balance of $10,400.
On February 11, 2008, appellant
sued respondents for breach of contract. The first amended complaint sought $52,245
plus interest against Makkink under the 1999 contract and the same amount
against Carlson under the 2001 contract; it also included an open book account
claim.
The
evidence at trial was that Carlson paid appellant $31,000 for surrogacy
services with three checks drawn on his account at Dermatology Associates of
Westlake Village: $1,000 in April 2001,
$4,000 in July 2001, and $26,000 in August 2001. The latter two checks were made out to Tyler
Medical Supply, and Makkink delivered them to appellant’s office manager, who
was authorized to receive payments and accepted the checks. The $1,000 check was immediately credited to
Makkink’s account; the remaining $30,000 was credited to her account in July
2002. Appellant testified that, in 2006,
he reversed the $30,000 credit because he did not receive this payment. He cited the same reason for not opening a
trust account as required by the surrogacy agreement. There was some evidence that appellant
suspected his office manager of embezzling funds. But Makkink testified that appellant
acknowledged receipt of the checks, telling her that the surrogacy process
could begin.
Three
unsuccessful embryo transfers were made to two surrogates in August 2001,
October 2001, and May 2002. Makkink was
notified of the negative results and agreed to the use of the second surrogate. In 2003, an office fire destroyed some of
appellant’s records, including the surrogates’ charts, which contained their
fees for office visits, laboratory, and ultrasound services, and copies of the
contracts signed by them. Two surrogate
ledgers were introduced at trial, one indicating $8,385 and another indicating
$4,309 in costs for services. Appellant
had no evidence to establish what fees the surrogates were paid or whether
insurance was bought for them. He
estimated they were paid for monthly expenses in the usual amount ($2,400 or
more). Appellant claimed the legal fee
was a standard fee charged for such contracts, and the surrogate screening,
transfer, and embryologist fees were actually incurred. Appellant acknowledged generally that, if a
surrogacy is unsuccessful, the costs are lower than the projected amount, and
his policy is to issue a refund for any excess payment.
The trial
court issued a statement of decision even though no party requested one. The court concluded that Makkink was
obligated to pay for services only under the 1999 contract, whereas Carlson’s
sole obligation was under the 2001 surrogacy agreement. The court awarded appellant $14,665.88, the
amount Makkink owed as of July 31, 2002, together with $781 for her three
subsequent office visits, plus interest.
The court concluded that Makkink was not liable for an additional
$30,000 since a payment for that amount was applied to her account for four
years, during which she received monthly statements indicating her reduced
liability. The court found that Carlson
paid $30,000 for surrogacy services, and that three attempts to impregnate two
surrogates were made. The court found
that appellant failed to prove the amounts he sought in surrogate-related
expenses and did not award any damages under the surrogacy agreement.
Appellant
filed objections to the proposed decision.
In a case review on the same day, the court noted that a statement of
decision was not requested by the parties and ordered appellant to prepare a
proposed judgment. Appellant then sought
a clarification of the court’s failure to respond to the objections. The court did not act on the request for
clarification, and a judgment was issued based on the statement of
decision. This timely appeal followed.
DISCUSSION
I
Appellant contends the trial court
abused its discretion in not responding to his objections to the statement of
decision, and this procedural error requires reversal. He relies on a footnote in In re
Marriage of Rising (1999) 76 Cal.App.4th 472, 476-477, fn. 7, a
family law case, where the trial court issued a formal statement of decision on
its own accord. The appellant objected
that the statement of decision did not specify the factual or legal basis for
future step-downs in spousal support. (
The appellate court did not reverse on procedural grounds. Thus, under appellant’s cited authority, the
trial court’s failure to respond to appellant’s objections is not erroneous per
se. Rather, the appellate court looked
to the trial court’s written statement of decision to determine whether the
decision was supported by the facts and the law, and reversed only because the
trial court had not specified the reasons for its step-down order. (Id. at p. 476-477, fn. 7, 478.)
The effect
of appellant’s objections to the statement of decision is that we will not
imply findings in respondents’ favor on controverted issues if the trial
court’s omission or ambiguous resolution of those issues was brought to its
attention. (Code Civ. Proc., § 634;
In re Marriage of Arceneaux (1990) 51 Cal. 3d 1130, 1133-1134.) The general rule is that “only when [a statement of decision]
fails to make findings on a material issue which would fairly disclose the
trial court’s determination would reversible error result. [Citations.]
Even then, if the judgment is otherwise supported, the omission to make
such findings is harmless error unless the evidence is sufficient to sustain a
finding in the complaining party’s favor which would have the effect of
countervailing or destroying other findings.
[Citation.]” (Hellman v. La
Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.)
Due to appellant’s scant and
one-sided citations to the record, we deem he forfeited any claim that could
properly be characterized as challenging the sufficiency of the evidence. (See Hauselt
v. County of Butte (2009) 172 Cal.App.4th 550, 563.)
We proceed to consider appellant’s substantive
challenges to the statement of decision.
II
Appellant argues that both
respondents should have been found liable under the surrogacy agreement since
in their trial briefs they admitted that Carlson loaned Makkink $31,000 for
surrogacy services, the checks were delivered before the surrogacy agreement
was signed, and the funds were applied to Makkink’s account. Although appellant purports to challenge
ambiguities in the trial court’s decision, in essence he asks us to find that
the court should have weighed the evidence in his favor.
The trial court’s decision to credit
Carlson $31,000 for surrogacy services is consistent with the court’s
finding that Carlson was liable only under the surrogacy agreement. That finding, in turn, is supported by
Carlson’s testimony that he did not agree to accept responsibility for Makkink’s
medical bills under the 1999 contract.
The court explained that appellant’s redirection of Carlson’s payments
to Makkink’s account did not change the fact that Carlson made the payments for
surrogacy services. Moreover, appellant
ignores evidence that his office manager also notified respondents in 2002 that $30,000 had been
applied to the projected surrogacy costs.
Because appellant directed the same payments to balances owed
under two different contracts, he cannot rely on his own accounting to
establish the purpose of the payments.
Appellant
argues further that Makkink incurred liability under the surrogacy agreement
because she delivered the checks and agreed to the surrogacy procedure. The agreement by its terms is “binding on the
undersigned,” but Makkink never signed it, and appellant presented no evidence
that she ever agreed to pay him or his clinic for surrogacy services. Appellant relies heavily on a footnote in respondents’ trial
briefs, which states that the evidence will show “Dr. Carlson, as a favor to
Ms. Makkink, loaned her $31,000.00 to pay [Tyler Medical Clinic] for the
surrogacy services . . . .” Appellant
argues this is a judicial admission that the amount was to be applied to
Makkink’s, not Carlson’s, liability. A
judicial admission is a fact established in a pleading. (Myers
v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746.) Complaints, demurrers, answers, and
cross-complaints are the only pleadings allowed in civil actions. (Ibid.,
citing Code Civ. Proc., § 422.10.)
Appellant’s assumption that a trial brief is a pleading is not legally
warranted. In effect, he contends that
the trial court should have treated as evidence a statement respondents’
counsel made in a brief and should have weighed that statement more heavily
than the actual evidence adduced at trial.
The court’s conclusion that only
Carlson is liable under the surrogacy agreement is not ambiguous and it is
supported by substantial evidence.
III
Alternatively,
appellant argues that the trial court incorrectly absolved Carlson of any
liability under the surrogacy agreement
in excess of the $31,000 he paid. The
trial court explained its reasoning for not awarding damages under the
surrogacy agreement when it stated that “in addition to the IVF procedures that
plaintiff performed as referenced in exhibit 42, plaintiff seeks recovery from
defendants for the services performed to examine the two surrogates as
referenced in exhibit 60 and other expenses related to the surrogates in
amounts that plaintiff did not prove.”
Appellant does not address this part of the statement of decision or the
exhibits the court referenced in it, and we see no omission or ambiguity in it.
Trial
exhibit 42 was one of Makkink’s patient ledgers. Appellant acknowledged at trial that the
services reflected on Makkink’s ledger pertained to Makkink, not to the
surrogates. Trial exhibit 60 was a
five-page redacted document, consisting of two surrogate ledgers reflecting
services to two anonymous surrogates in the amounts of $8,385 and $4,309
respectively. Both surrogate ledgers
show a $0 balance and a write-off by appellant.
Appellant’s trial
and deposition testimony was that the $40,400 fee in the surrogacy agreement was based on projected
surrogacy expenses, the actual costs for an unsuccessful surrogacy are usually
lower, and not all surrogate-related expenses may have been incurred in this
case.
A breach of contract claim requires proof of
recoverable damages. (
(1971) 14 Cal.App.3d 887.) “‘There is no
requirement that the trial court set out either its computations, or the
particular evidence upon which it may have relied in determining the amount of
damages. Nor is an appellate court concerned
with the weight of testimony, particularly with reference to the amount of
damages. The pertinent inquiry is
whether there was substantial support in the evidence for the finding as to
damages, and the appellants have the burden of demonstrating that the
determination as to the amount of damages was erroneous.’ [Citation.]”
(Id. at pp. 913-914)
Appellant relies exclusively on the $40,400 fee due
under the surrogacy agreement, interpreting that agreement to require this fee
for each surrogate, plus an additional fee of $3,500 for the second attempt on
the same surrogate, for a total of $84,300.
He argues that, since the court found two surrogates were actually used,
the correct measure of damages must be $84,300.
This amount is higher than the $52,245 appellant sought under the
surrogacy agreement in the amended complaint and even higher than his trial
estimate of $42,232.10 in actually incurred outstanding surrogacy charges. The record does not show that the trial court
was presented with or accepted $84,300 as the measure of damages under the
surrogacy agreement. The court’s
findings that two surrogates were used and that appellant did not prove the
surrogacy-related expenses he sought are not inconsistent. Nor are appellant’s admittedly projected
surrogacy expenses a reliable basis for damages in light of evidence they may
have been overstated and in the absence of records of actual expenses exceeding
the $31,000 Carlson paid for surrogacy services.
Moreover, a claim of inadequate damages involving
factual issues must first be made in a motion
for a new trial. (County of Los
Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108,
1121.) If appellant believed that his
testimony and records were sufficient to establish his actual damages under the
surrogacy agreement with reasonable certainty, he should have brought a motion
for a new trial. His objections to the
statement of decision cannot function as such a motion.
IV
Appellant argues that the court
improperly applied a $31,000 credit to Makkink’s liability for medical services
because the evidence was that the money was to be used for surrogacy
services. The trial court’s reasoning is
more complex than appellant acknowledges.
The court reasoned that, because appellant credited $30,000 to Makkink’s
patient ledger for several years before reversing the credit in 2006, and in
the interim sent Makkink monthly statements reflecting her reduced liability,
he “cannot be heard to argue that the $30,000.00 should be applied only for
surrogacy services and not to reduce Ms. Makkink’s indebtedness . . . .”
In his objections, appellant argued
that the court’s statement of decision did not indicate “under what authority”
Makkink was credited the $31,000 that had been incorrectly applied to her
patient ledger. Appellant’s objections
appear to have been directed at the court’s legal conclusion, which essentially
was that his misdirection of payments to Makkink’s ledger and his monthly
notices indicating that her indebtedness had been reduced estopped him from
seeking to recover previously credited amounts.
On appeal, he fails to address or even acknowledge the trial court’s
reasoning. Instead, he argues that, if a
credit was to be issued to either party, it should have been issued to
Makkink. In the absence of adequate
factual or legal analysis of this issue, we deem it forfeited. (Placer
County Local Agency Formation Com. v. Nevada County Local Agency Formation Com.
(2006) 135 Cal.App.4th 793, 814.)
V
Appellant
acknowledges that he did not object to the trial court’s failure to rule on his
open book account claims against Carlson and Makkink. In California, money due under an express
contract is not recoverable in an action on an open book account unless there
is a contrary agreement by the parties.
(Armstrong Petroleum Corp. v.
Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1395, fn.
9.) We imply a finding against appellant
and in favor of the judgment on this issue.
(See In re Marriage of Arceneaux,
supra, 51 Cal.3d at pp. 1133-1134.)
The judgment is affirmed. Respondents are entitled to their costs on
appeal.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
record. We have had to rely on
respondents’ brief and our own review of the record to compile a balanced
statement of facts.
not address respondents’ argument that appellant’s claim for damages against
Carlson is time barred. We do not
address the trial court’s ruling that the statute of limitation did not bar
appellant’s claim against Makkink because no party challenges that ruling.
