Filed 11/20/20 Advanced Pain Treatment etc. v. Mitre 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

ADVANCED PAIN TREATMENT 

MEDICAL CENTER,

Plaintiff and Respondent,

v.

GREG MITRE,

Defendant and Appellant.

 B298595

 (Los Angeles County

 Super. Ct. No. NC061442)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Michael P. Vicencia, Judge. Reversed and 

remanded.

Hinshaw & Culbertson, Eugene Brown, Jr., for Defendant 

and Appellant.

Andrew P. Altholz for Plaintiff and Respondent.
2

Appellant Greg Mitre received treatment for back pain at 

respondent Advanced Pain Treatment Medical Center (Advanced 

Pain). Mitre’s health insurance paid for the treatments but did 

not pay associated “facility fees” totaling $30,000. Four years 

later, Advanced Pain sued Mitre to recover the facility fees under

both contract and quantum meruit theories. 

In a special verdict, the jury found that Advanced Pain and 

Mitre entered into a contract, under which Advanced Pain 

performed and Mitre did not. The jury found that Advanced Pain 

was not harmed by Mitre’s breach, however, and awarded no 

contract damages. In accordance with the instructions on the 

special verdict form, to which no objections were raised, the jury 

proceeded to consider a quantum meruit theory and awarded 

Advanced Pain $15,000 as the reasonable value of the services it 

provided. The trial court subsequently denied Mitre’s motion for 

judgment notwithstanding the verdict (JNOV).

In this appeal, Mitre contends the jury’s verdict on the 

quantum meruit claim must be reversed for two reasons. First, 

he argues that the jury rendered an inconsistent and legally 

impermissible verdict by finding both that there was a contract 

and awarding recovery in quantum meruit for the services 

covered by the contract. Second, Mitre argues that the quantum 

meruit claim is barred by the statute of limitations. Advanced 

Pain responds that Mitre forfeited or invited error as to both 

arguments, which it further contends are incorrect.

We reverse. As a matter of law, a plaintiff may not recover 

on a quantum meruit claim if the parties have an enforceable 

agreement regarding the same subject matter. The jury’s special 

verdict findings accordingly were inconsistent. Because the 

inconsistent findings are equally against the law, we reject 
3

Mitre’s request to reverse only the quantum meruit findings and 

instead remand for new trial.

FACTUAL BACKGROUND

On February 19, 2013, Mitre visited Advanced Pain to be 

evaluated for pain treatment. During that visit, he signed a form 

that stated, “I hereby authorize my insurance to pay directly to 

Dr. Kamran Ghadimi and Advanced Pain Treatment Medical 

Center all insurance benefits that I am entitled. I also authorize 

Dr. Kamran Ghadimi to release any information as required for 

insurance billing purposes. I am also aware that I am 

responsible for any balance above and beyond that which my 

insurance carrier does not cover.” The form did not list the prices 

of any of Advanced Pain’s services or the fees it charged. 

Mitre visited Advanced Pain for pain treatment on 

February 21, 2013 and April 11, 2013. On both occasions, pain 

management physician Dr. Kamran Ghadimi, the sole owner of 

Advanced Pain, gave Mitre a lumbar epidural steroid injection. 

Mitre was sedated during part of the procedures, which he 

tolerated well. 

Advanced Pain obtained preauthorization from Mitre’s 

health insurance before Dr. Ghadimi performed the injections. It 

billed the insurance for Dr. Ghadimi’s services, as well as an 

associated facility fee of $15,000 per procedure.1 After doing 

“everything we could to get paid from the insurance,” Advanced 

Pain sent Mitre a bill for the unpaid $30,000 in facility fees on 

1Dr. Ghadimi testified that the facility fee was a “global fee” 

intended to cover his assisting nurse, as well as “risk, operating 

room, recovery room, pharmacy mean[ing] medications, and 

radiology mean[ing] x-ray machine.” The amount of the facility 

fee varied by procedure. 
4

July 10, 2017. The accompanying letter stated that the balance 

was “payable and now due.” It directed Mitre to contact his 

health insurer with questions, and stated, “You have received 

several denials from them. The balance now has been 

transferred to your responsibility.” Mitre did not pay the fees. 

At trial, Advanced Pain presented expert testimony that 

the $15,000 facility fee was the upper end of the reasonable range 

for such fees. Mitre presented expert testimony that office-based 

surgery centers like Advanced Pain do not charge facility fees. 

PROCEDURAL HISTORY

Advanced Pain filed a complaint against Mitre on October 

23, 2017. It asserted three causes of action: breach of contract, 

money due on an open book account, and quantum meruit. Mitre 

answered the complaint on April 3, 2018. He denied the 

allegations of the complaint and asserted 33 affirmative defenses, 

including the statute of limitations. 

Mitre filed a motion for summary adjudication on 

November 21, 2018. He argued that there was no enforceable 

contract between himself and Advanced Pain, and that both the 

breach of contract and quantum meruit causes of action were 

barred by the statute of limitations. Advanced Pain opposed the 

motion, arguing that both the existence of a contract and the 

operation of the statute of limitations were triable issues of 

material fact. The trial court denied the motion without 

explanation in a minute order on February 5, 2019. There is no 

reporter’s transcript of the hearing in the appellate record. Mitre 

did not seek writ relief. 
5

Trial on the breach of contract and quantum meruit causes 

of action began on March 12, 2019.2 Prior to trial, Mitre filed a 

trial brief. The brief did not mention the statute of limitations. 

Neither Advanced Pain nor Mitre mentioned the statute of 

limitations during the lengthy pretrial conference with the court

or during opening statements. During trial, the parties 

presented evidence of the facts summarized above. 

After both sides rested, the court provided its rulings on the 

parties’ proposed jury instructions. As relevant here, it denied 

both sides’ request for CACI No. 338, “Affirmative Defense—

Statute of Limitations.” Neither side objected to the court’s jury 

instructions ruling or mentioned the statute of limitations during 

closing argument. 

The court rejected both parties’ proposed special verdict 

forms as “either improper or insufficient” and provided the jury 

with a special verdict form of its own design without objection. 

The court’s form, based on CACI VF-300 and CACI No. 371,3

contained a total of nine questions. Questions one through five 

pertained to the contract cause of action, and questions six 

through nine pertained to the quantum meruit cause of action. 

The jury answered “yes” to questions one, two, and three, 

finding that there was a contract, Advanced Pain performed, and 

Mitre did not. It answered “no” to question four, finding that 

Advanced Pain suffered no harm from Mitre’s breach. The jury 

2Advanced Pain withdrew its cause of action for open book 

account during the pretrial conference. 

3CACI VF-300, which its use note says is “intended for use 

in most contract disputes,” is based on CACI No. 303, Breach of 

Contract—Essential Factual Elements. CACI No. 371, Common 

Count: Goods and Services Rendered, is the pattern jury 

instruction for quantum meruit. 
6

wrote “0” for the total amount of damages in question five. 

During jury polling, the foreperson explained that the jury had 

not discussed question five, in accordance with the form’s 

instruction to skip question five and proceed to question six if the 

answer to question four was no: “I was just filling in like a none 

[sic] applicable zero, just a null space.”

The verdict form next asked questions concerning the 

quantum meruit cause of action. The jury answered “yes” to 

questions six, seven, and eight, finding that Mitre requested 

beneficial services, Advanced Pain rendered the services as 

requested, and Mitre failed to pay for the services. The jury then 

answered question nine, setting the reasonable value of the 

services Advanced Pain rendered at $15,000. 

Advanced Pain prepared a proposed judgment. Mitre 

objected on the sole ground that the proposed judgment “seeks 

[prejudgment] interest in violation of Civil Code § 3287 et. seq., 

and as such cannot be awarded as claimed.” The trial court 

entered judgment, including prejudgment interest, on April 12, 

2019. Advanced Pain served Mitre with notice of entry of 

judgment on April 19, 2019. 

On May 8, 2019, Mitre filed a motion to correct the 

judgment to delete the award of prejudgment interest. On May 

20, 2019, the trial court took the motion off calendar, explaining, 

“It was stricken before I signed it. I don’t know how you got the 

thing that you got. But it was stricken before I signed it.” 

Advanced Pain served notice of the corrected judgment on May 

29, 2019. 

On May 30, 2019, Mitre moved for JNOV. In his motion, he 

argued that both causes of action were barred by the statute of 

limitations. Advanced Pain opposed the JNOV motion on the 
7

grounds that it was untimely filed under Code of Civil Procedure 

section 629, subdivision (b), and “substantial uncontroverted 

evidence was produced at trial that vitiates Defendant’s statute 

of limitations defense and supports the Verdict.” The trial court 

heard the motion on June 27, 2019. There is no reporter’s 

transcript of the hearing in the appellate record. The reporter’s 

transcript for June 27, 2019 included in the record is from a 

different case. The minute order documenting the hearing states 

only that the motion was denied. 

Mitre filed his notice of appeal from the judgment on June 

18, 2019. He did not file a subsequent notice of appeal from the 

denial of his motion for JNOV. 

DISCUSSION 

I. Inconsistent Special Verdict Findings

Mitre contends the jury’s verdict on the quantum meruit 

cause of action must be reversed because, “as a matter of law no 

quantum meruit claim can exist where, as here, the parties had a 

written contract regarding the same subject matter.” Advanced 

Pain responds that Mitre is barred from making this argument 

because he did not raise it below. However, “inconsistent jury 

findings in a special verdict are not subject to waiver by a party.”

(Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 

1083, 1093, fn. 6 (Zagami).)

We review a special verdict for inconsistency de novo. 

(Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 

338, 358 (Singh); Zagami, supra, 160 Cal.App.4that p. 1092.) 

“With a special verdict, unlike a general verdict or a general 

verdict with special findings, a reviewing court will not infer 

findings to support the verdict.” (Singh, supra, 186 Cal.App.4th 

at p. 358.) That is, “there is no presumption in favor of upholding 
8

a special verdict when the inconsistency is between two questions 

in a special verdict.” (Zagami, supra, 160 Cal.App.4th at p. 1092.)

“‘Where there is an inconsistency between or among answers 

within a special verdict, both or all the questions are equally 

against the law.’ [Citations.]” (Ibid.) We are not permitted to 

pick and choose between inconsistent answers. (Singh, supra, 

186 Cal.App.4th at p. 358.) If the findings contradict on material 

issues, and the correct determination of such issues is necessary 

to sustain the judgment, the inconsistency is reversible error. 

(Ibid.) 

The special verdict here involved a contract claim and a 

quantum meruit claim. The contract claim sought enforcement of 

a written contract, the form Mitre signed on February 19, 2013, 

agreeing to pay any balance not paid by his insurance. The 

quantum meruit claim asked the jury to fashion an implied 

contract to pay for the reasonable value of services that were not 

gratuitously rendered. (Huskinson & Brown v. Wolf (2004) 32 

Cal.4th 453, 458; see also Maglica v. Maglica (1998) 66 

Cal.App.4th 442, 449.) Advanced Pain was permitted to allege 

and advance these inconsistent theories, but it was not permitted 

to “pursue or recover on a quasi-contract claim if the parties have 

an enforceable agreement regarding a particular subject matter.” 

(Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388, 

1389.) “When parties have an actual contract covering a subject, 

a court cannot—not even under the guise of equity 

jurisprudence—substitute the court’s own concepts of fairness 

regarding that subject in place of the parties’ own contract.” 

(Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 

Cal.App.4th 1410, 1420.) One reason for this rule is rooted in

equity: “‘where the parties have freely, fairly and voluntarily 
9

bargained for certain benefits in exchange for undertaking 

certain obligations, it would be inequitable to imply a different 

liability.’” (Id. at p. 1419.) Another is rooted in practicality: “[a] 

quantum meruit analysis cannot supply ‘missing’ terms that are 

not missing.” (Ibid.) 

The only contract identified by the pleadings, evidence, and 

argument was the form Mitre signed on February 19, 2013.

Mitre argued that the form was not an enforceable contract to 

pay any amount his insurance failed to pay, but the jury 

disagreed. It expressly found, in answering “yes” to question one, 

that “Advanced Pain Treatment Medical Center and Greg Mitre 

enter[ed] into a contract” covering the fees at issue. After that 

point, quantum meruit was no longer available as a basis of 

recovery. The special verdict form nevertheless directed the jury 

to proceed to the quantum meruit questions if it answered “no” to 

questions two (did Advanced Pain perform?), three (did Mitre fail 

to perform?), or four (was Advanced Pain harmed?). The jury 

answered “no” to question four. In accordance with the 

instructions on the verdict form, as well as additional guidance 

the trial court delivered orally,4 the jury then proceeded to 

answer the questions pertaining to quantum meruit and awarded 

Advanced Pain $15,000 under that theory. The jury’s special 

4In response to a request by the jury to “define damages,” 

the trial court explained, in part, “you should not be in a position 

of answering question five [contract damages] and question nine 

[reasonable value of services provided]. You only get to question 

nine – you only get to question six, which leads you to question 

nine, if you answered ‘no’ in question one, two, three, four, or put 

zero for question five. Okay? So only in that circumstance do you 

go to question six. If you put an amount of money other than zero 

on question five, then you’re done.” 
10

verdict finding that Mitre was obligated to pay the fees under a 

contract is irreconcilably inconsistent with its finding that 

Advanced Pain is entitled to the reasonable value of those same 

fees under quantum meruit.

Advanced Pain contends the findings are consistent and 

must be upheld. In its view, “it is entirely reasonable to infer 

from the record on appeal, that Appellant agreed and 

contemplated that Advanced [Dr. Ghadimi] could try to recover 

payment from the [health insurance] Plan, that the same could 

take a long time, and that Appellant would remain liable for any 

sums that the Plan did not pay.”5 We reject this contention for 

two reasons. First, as noted above, we make no presumption in 

favor of upholding a special verdict and do not infer findings to 

support it. Second, the central premise of the argument—that a 

special verdict is not inconsistent unless its answers are 

impossible to reconcile— is faulty. The rule that a verdict should 

not be modified “‘if there is any “possibility of reconciliation 

under any possible application of the evidence and instructions”’” 

does not apply when the inconsistency at issue is between two 

questions within a special verdict. (Mendoza v. Club Car, Inc.

(2000) 81 Cal.App.4th 287, 302-303; see also Trejo v. Johnson & 

Johnson (2017) 13 Cal.App.5th 110, 124, fn. 5.) 

5During oral argument, Advanced Pain cited for the first 

time three additional cases in support of this position : Hasson v. 

Ford (1977) 19 Cal.3d 530, 540-51, overruled by Soule v. General 

Motors (1994) 8 Cal.4th 548, 574, 579-580, Jarchow v. 

Transamerica Title Insurance Co. (1975) 48 Cal.App.3d 917, 

overruled by Soto v. Royal Globe Insurance Corp. (1986) 184 

Cal.App.4th 420, 434, and Bolen v. Woo (1979) 96 Cal.App.3d 944. 

None of these cases supports this argument.
11

Advanced Pain also argues that Mitre invited error by 

failing to request appropriate instructions on the special verdict 

form. We are not persuaded. The special verdict form was 

largely devised by the trial court after it rejected both parties’ 

proposed forms. Neither side objected, and there is no indication 

in the record that Mitre knowingly created or foresaw any 

problem. (See Lambert v. General Motors (1998) 67 Cal.App.4th 

1179, 1183.) “‘[W]aiver is not found where the record indicates 

that the failure to object was not the result of a desire to reap a 

“technical advantage” or engage in a “litigious strategy.” 

[Citations.]’ [Citation.] Nor is an objection required when the 

verdict is fatally inconsistent.” (Behr v. Redmond (2011) 193 

Cal.App.4th 517, 530.) 

For all of these reasons, we agree with Mitre that the 

special verdict is inconsistent and cannot stand. However, we 

reject his contention that the error entitles him to judgment on 

the quantum meruit claim. “‘Where there is an inconsistency 

between or among answers within a special verdict, both or all 

the questions are equally against the law.’ [Citations.]” (Zagami, 

supra, 160 Cal.App.4th at p.1092.) Mitre’s argument would 

require us to accept as definitive the jury’s answers to the 

questions regarding the contract and disregard its answers on the 

quantum meruit claim. We cannot do this. 

“The proper remedy for an inconsistent special verdict is a 

new trial.” (Singh, supra, 186 Cal.App.4th at p. 358.) On 

remand, the parties and court should make clear that a contract 

and quantum meruit recovery are mutually exclusive by 

instructing the jury that it may not answer questions concerning 

quantum meruit if it finds that the parties had a valid contract 

regarding the fees.
12

II. Statute of Limitations

Mitre alternatively argues that the quantum meruit verdict 

must be reversed because the two-year statute of limitations in 

Code of Civil Procedure section 339 expired before Advanced Pain 

brought its quantum meruit claim. (See Reeve v. Meleyco (2020) 

46 Cal.App.5th 1092, 1100.) Advanced Pain responds that Mitre 

has forfeited this contention by failing to raise it at trial, and, in 

the alternative, that it timely filed its claim. We agree with 

Advanced Pain that Mitre has not preserved his statute of 

limitations argument.

The statute of limitations is an affirmative defense that 

“exists to promote the diligent assertion of claims, ensure 

defendants the opportunity to collect evidence while still fresh, 

and provide repose and protection from dilatory suits once excess 

time has passed.” (Aryeh v. Canon Business Solutions, Inc. (2013) 

55 Cal.4th 1185, 1191.) It must be asserted by the defendant in 

its answer and at trial to be preserved for appeal. (Rubinstein v. 

Fakheri (2020) 49 Cal.App.5th 797, 808.) 

Mitre asserts that he preserved the defense by raising it in 

his answer, in his motion for summary adjudication, in a rejected 

jury instruction, and in his motion for JNOV. He does not cite 

any authority in support of this position, which we do not find 

persuasive. Mitre did not challenge the trial court’s denial of his 

summary adjudication motion either by writ or in his opening 

brief. Even if he had challenged the denial of the summary 

adjudication motion prior to his reply brief, the appellate record 

does not reveal the basis for the denial of the motion, and we 

must presume the ruling was correct. (Jameson v. Desta (2018) 5 

Cal.5th 594, 609.) 
13

After asserting the statute of limitations defense in his 

answer and motion for summary adjudication, Mitre said nothing 

on the subject in his pretrial motion or throughout the parties’ 

lengthy pretrial conference with the trial court. He did not 

mention the statute of limitations in his opening statement or 

closing argument, and did not present any evidence regarding the 

accrual date of the quantum meruit claim. Mitre proposed a jury 

instruction on the statute of limitations, but did not object or seek 

explanation when the court declined to give the instruction. (See 

Code Civ. Proc. § 647.) Moreover, he does not contend that the 

trial court erred in declining to provide the instruction.

Mitre revived his statute of limitations defense in his 

motion for JNOV, but he has not appealed the court’s ruling 

denying that motion. (See Code Civ. Proc., § 904.1, subd. (a)(4) 

[JNOV is an appealable order]; Sole Energy Co. v. Petrominearals 

Corp. (2005) 128 Cal.App.4th 212, 239.) In short, he neither took 

steps to ensure the defense was presented to the jury nor 

preserved the issue for appeal. We accordingly do not reach the 

merits of the claim. 

DISPOSTION 

The judgment of the trial court is reversed, and the matter 

is remanded for new trial. Mitre is awarded his costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J. CURREY, J