Metropolitan News-Enterprise


Friday, March 19, 2021


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Verdict Stands That Battery by Lawyer Was in Course and Scope of Employment—C.A. 


By a MetNews Staff Writer


The Court of Appeal for this district yesterday issued an opinion that leaves standing a judgment based on a jury’s determination that a lawyer for the state Department of Managed Health Care was acting in the scope of her employment when, in the hallway of the Stanley Mosk courthouse, she threw papers at the head of a plastic surgeon the agency was suing.

By virtue of the jury’s finding, Los Angeles Superior Court Judge Michael Harwin granted judgment in favor of the lawyer, Kristin Door, because the plaintiff, Dr. Jeannette Martello, had not filed the requisite claim against the public entity that employed Door.

“Failure to file a claim bars a plaintiff from suing the entity or employee,” Presiding Justice Lee Edmon of Div. Three said in her unpublished opinion affirming the judgment.

She noted that Martello confined her attention to assailing rulings by Harwin—such as denying her motions in limine to block reference to such matters as her having been declared a vexatious litigant, the action against her by the Department of Managed Health Care (“DMHC”) and the penalty imposed on her, that her medical license was restricted and she has a law degree—rather than addressing whether Door acted in the scope of employment.

Edmon’s Opinion

Edmon wrote:

“Because Martello’s failure to file a claim is potentially fatal to her suit, it is her burden on appeal to demonstrate that a reasonable jury could have concluded, based on the evidence before it, that Door’s alleged injury-causing conduct was outside the scope of her employment. Martello utterly fails to make this showing. Her appellant’s opening brief does not discuss the ‘scope of...employment’ standard as it has been interpreted by the courts, nor does it identify any evidence from which the jury could have concluded that the alleged assault did not occur in the scope of Door’s employment with the DMHC. To the contrary, Martello’s opening brief avoids this question entirely, discussing only the evidence she contends was erroneously admitted. And, although the issue was squarely argued in Door’s respondent’s brief, Martello failed to address it in her reply.”

She added:

“It is not this court’s role to ‘scour the record unguided,’ and we decline to do so here, where the reporter’s transcript is nearly 1,000 pages.”

Martello, who practices in South Pasadena, was represented by Sherman Oaks attorney Daniel A. Crawford. The state Office of Attorney General acted for Door, who is now on inactive bar status.

Crawford said he has no comment on the decision.

The case is Martello v. Door, B297568.

DMHC’s Action

The DMHC brought its action against Martello in 2011 to enjoin her aggressive collection practices which entailed “balance billing.” The trial was held in 2013 before then-Los Angeles Superior Court Judge David Milton, now a private judge, and Los Angeles Superior Court Judge John P. Doyle signed the judgment on July 23, 2014.

It enjoined Martello from charging patients who are covered by a health care plan more than the amount of the co-payment. Statutory penalties were assessed at $562,500.

One patient who complained to the DMHC was Bill Buck, whom Martello treated in an emergency room at Huntington Memorial Hospital after the tip of one of his fingers was cut off in an accident. He assumed his insurance would cover the costs.

Martello billed $12,630; the insurance company paid her $3,500; she returned the check and sued Buck, his wife and his business for the full amount.

The Los Angeles Times reported:

“Martello’s use of aggressive tactics to collect fees from emergency room patients like Buck—including lawsuits, taking out liens on their homes and damaging their credit—prompted an unprecedented court case by state health officials and a judge’s order for Martello to cease the practices.”

The doctor appealed. On May 12, 2016, Div. One of this district’s Court of Appeal affirmed the judgment.

Justice Victoria Chaney wrote:

“[W]e find no support for Appellant’s claim that California’s prohibition against balance billing in the emergency services context is preempted by federal law.”

Federal Suit

Among the various lawsuits Martello has filed was one in the U.S. District Court for the Central District of California. On March 11, 2015, she sued Shelley Rouillard, as director of the DMHC and Kimberly Kirchmeyer, as director of the Medical Board of California, alleging their efforts to dictate her billing practices were in contravention of federal law.

Superior Court Judge Christine Snyder on July 6, 2015 dismissed the action with prejudice based on the federal abstention doctrine which, in general, precludes a second-guessing of state court decisions. She wrote:

“Here, plaintiff effectively requests that this Court review the Superior Court’s denial of her writ of mandate in the Medical Board Action, as well as the Superior Court’s entry of judgment against her in the Civil Action….

“Because plaintiff effectively seeks review of two state court judgments, the Court lacks jurisdiction over plaintiff’s complaint….”

Litigation With Bucks

On March 1, 2019, Div. One of the Court of Appeal for this district, in an opinion by Presiding Justice Frances Rothschild, affirmed a judgment by Los Angeles Superior Court Judge Mark V. Mooney which was to the effect that Martello had entered into a valid settlement with the Bucks and could not back out of it. She had sued them for defamation based on comments on her billing practices posted on the Internet and for an alleged assault; they had cross complained for malicious prosecution in having sued them for medical fees.

Rothschild also wrote a Dec. 13, 2017 opinion affirming then-Los Angeles Superior Court Judge Marc Marmaro’s order denying Marcello’s anti-SLAPP motion in an action brought against her for intentional interference with prospective economic advantage based on having filed a lien against proceeds of a personal injury action. She said the plaintiff “has made a prima facie showing that Martello had no such lien at the time she filed her lien in this case.”

Contempt Adjudication Overturned

Martello did score one victory and one partial win in the Court of Appeal for this district. On April 11, 2014, Div. One, in a “By the Court” opinion found that Milton improperly ordered her jailed for five days for indirect contempt based on violating a preliminary injunction because there had been no affidavit served on her.

Div. Seven on June 12, 2017, partially reversed then-Los Angeles Superior Court Judge Luis Lavin’s dismissal of her action against the DMHC, holding she stated a cause of action for discriminatory enforcement. A request for dismissal was filed on July 10, 2019 and there has been no further action.

Martello’s medical license was revoked by Administrative Law Judge Eric Sawyer on Sept. 16, 2013, but with the revocation stayed. Martello was placed on five years probation, a condition of which was to dismiss pending actions against five patients.

The plastic surgeon claimed to have no assets in filing for bankruptcy last Aug. 24, but she has not followed through with the matter.


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