Filed 6/18/20 Esebag v. Casellini CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

JIMMY ESEBAG,

Plaintiff and Appellant,

v.

RENZO C. CASELLINI et al.,

Defendants and Respondents.

B293693

(Los Angeles County

Super. Ct. No. BC561466)

APPEAL from a judgment of the Superior Court of Los Angeles County. Terry Green, Judge. Affirmed.

Browne George Ross, Peter W. Ross and Charles Avrith for Plaintiff and Appellant.

Booth, Mitchel & Strange and Christopher C. Lewi for Defendants and Respondents Renzo C. Casellini and Swiss Quality Dental Implant Studio.

Ray & Gourde and Burdick M. Ray for Defendant and Respondent Ilona Casellini.

_____________________________

Plaintiff Jimmy Esebag claimed defendant Renzo Casellini, who is not a dentist, performed numerous unsuccessful dental procedures on him. In his defense, Renzo insisted two dentists—one of whom is his daughter, Ilona Casellini—performed the work, and he simply assisted them. Esebag filed a complaint against Renzo and Ilona for negligence, breach of fiduciary duty, and battery. The jury returned a verdict in favor of Renzo and Ilona.

On appeal, Esebag asserts the trial court erred in excluding evidence from a married couple who claimed Renzo performed dental work on them several years earlier. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Renzo is a certified dental technician and operates a laboratory called Swiss Quality Dental Implant Studio that manufactures dental restorations, such as crowns and bridges. A crown is a protective cap that is placed on top of an existing tooth or dental implant. A bridge consists of multiple crowns fused together and is used to fill a toothless gap in a patient’s mouth. Renzo is not licensed to practice dentistry, meaning he is not allowed to take impressions, decide the appropriate treatment for a patient, try crowns and bridges in the patient’s mouth, or cement the crowns and bridges.

In April 2011, Esebag met with his dentist to discuss treatment options for his teeth, which were in very poor condition. The dentist asked Renzo to attend the meeting because Renzo would be responsible for fabricating the necessary restorations. Esebag’s dentist recommended a total mouth restoration, which required extracting his rotting teeth, building up the bone in his jaw, installing implants, and attaching crowns and bridges. The total cost would be around $150,000.

Esebag decided to get a second opinion, and he asked Renzo to join him at a meeting with another dentist. That dentist also recommended a total mouth restoration. Esebag started the treatment by having several teeth removed and dental implants installed.

At this point, the parties’ accounts diverge dramatically.

Renzo and Ilona’s Version of Events

According to Renzo, Esebag was unhappy with his treatment and asked Renzo if he could help him find a new dentist. Esebag did not have the time to complete the total mouth restoration, and he wanted a temporary solution that would make his teeth look good. Renzo said his daughter, Ilona, might be able to do the work, and he set up a time for them to meet.

Ilona graduated from dental school in 2010, and soon thereafter she opened a dental practice in an office adjacent to Renzo’s laboratory. In addition to running his lab, Renzo acted as Ilona’s office manager, treatment planning coordinator, and dental assistant. He leased Ilona’s office space, paid her rent, ordered her supplies, took care of scheduling, fabricated all necessary restorations, and discussed and collected fees from her patients. In return, he and his company received two-thirds of all payments collected from Ilona’s patients.

As Ilona’s dental assistant, Renzo would suction patients, hand Ilona instruments, and generally be a second set of hands for her. Dental assistants do not require formal training, and they are permitted to put certain instruments in a patient’s mouth. Renzo worked as a dental assistant for 10 years before Ilona opened her practice.

Ilona met with Esebag sometime in late 2011. Esebag agreed to a treatment plan that involved removing his existing restorations—which were ugly, cracked, and stained—and replacing them with new high-end restorations made of porcelain fused to metal. Esebag wanted to start the work immediately, but Ilona had a vacation planned and would not be available. To accommodate Esebag, Ilona told Renzo to reach out to another dentist in the same office building, Dr. Jay Sison, to see if he could do the work.

Dr. Sison agreed, and over the course of three appointments in November 2011, Dr. Sison performed surgery to uncover one of Esebag’s implants, took multiple impressions of his mouth, removed his existing restorations, and installed final restorations using permanent cement. Renzo acted as Dr. Sison’s dental assistant for many of the procedures. Dr. Sison advised Esebag this was only a temporary solution, and Esebag assured him he would soon undergo the total mouth restoration. Esebag paid Renzo $40,000 for the work, from which Renzo gave Dr. Sison $6,000.

Over the next few months, Ilona repaired several chips to Esebag’s new restorations. Ilona advised Esebag he needed to go forward with the total mouth restoration, but Esebag declined to do so.

In October 2012, Esebag told Ilona he was unhappy with Dr. Sison’s restorations, and he wanted longer, larger, and whiter teeth. Because Esebag’s rotting teeth were not stable enough to withstand removing the old restorations, the only way to make such an esthetic change—without requiring dentures or a total mouth restoration—was to grind down the existing restorations and cement new restorations to them. Renzo was Ilona’s assistant for the procedures.

Esebag initially claimed to be happy with his new, larger restorations. However, he returned to the office a few weeks later, complaining that he was spitting often and he did not like the look of his teeth. Ilona refunded Esebag the money he paid for the restorations.

Esebag’s Version of Events

According to Esebag, Renzo approached him and offered to do his dental work for significantly less money than Esebag’s other dentists. At the time, Esebag thought Renzo was a dentist, and Renzo gave him no reason to think otherwise. Esebag trusted Renzo, whom he considered to be a friend, and agreed to let him do the work.

Esebag claimed that, with the exception of the surgery to uncover an implant and the repair of one cracked tooth, Renzo performed all the dental work, by himself, without a dentist present. Esebag also maintained he was not allowed to try on the second set of restorations, and Renzo never told him those restorations would be secured using permanent cement on top of the existing ones. Esebag paid for the work partially in cash and partially by check.

Esebag maintained the second set of restorations were too large for his mouth, which caused him considerable pain and created problems with spitting, eating, and speaking. Because the restorations were secured using permanent cement, he had to undergo a total mouth restoration to correct the problems. This required several procedures over the course of a year and a half, which cost approximately $200,000.

Trial

Three of Esebag’s causes of action were tried to a jury: (1) negligence against Renzo; (2) breach of fiduciary duty against Renzo and Ilona; and (3) battery against Renzo and Ilona. The first two causes of action were premised on Esebag’s claim that Renzo performed unlicensed dentistry on him and did so below the standard of care. The battery cause of action was premised on Esebag’s assertion that he did not consent to the larger set of restorations being cemented onto the smaller set. Ilona allegedly allowed Renzo to perform the dental work.

At trial, Esebag testified consistent with his version of events. His theory was that Renzo treated him as part of a scheme to find patients and do their dental work, “and if anybody raised any questions, [Renzo] would say, well, you’re a patient of my daughter’s practice right here next door. And both Renzo Casellini and Ilona Casellini found the arrangement profitable.”

Renzo and Ilona presented evidence establishing their version of events, as summarized above. They also introduced treatment records handwritten by Ilona and Dr. Sison, which generally tracked that version. Esebag argued the records were written after the fact to cover for Renzo.

The jury returned a verdict in favor of Renzo and Ilona on each claim. The trial court subsequently denied Esebag’s motion for new trial—which we discuss in more detail below—and entered judgment for Renzo and Ilona. Esebag timely appealed.

DISCUSSION

Esebag argues the trial court erroneously excluded testimony from a married couple who claimed Renzo performed unlicensed dental work on them in 2004. We disagree.

I. The Excluded Evidence

Prior to trial, Renzo and Ilona moved to exclude under Evidence Code sections 1101 and 352 evidence that Renzo had performed unlicensed dental work on other patients. Esebag argued the evidence was admissible to prove Renzo’s motive, intent, plan, and identity. Specifically, he argued the evidence would help establish Renzo, not Ilona, installed the second set of restorations. It would also show Renzo’s treatment of Esebag was part of a plan to lure him “away from his customary, reputable dentist and con him into believing he was a licensed dentist who could perform dental work at the prevailing level of professional quality at half the price . . . .” The court deferred ruling on the motion until it heard more evidence at trial.

Ruly Papadopulos and his wife, Myriam, testified at a subsequent section 402 hearing. According to Ruly, sometime around 2004, he needed work done on his implants and crowns, and a friend recommended he talk to Renzo. Renzo, in turn, recommended three dentists who could do the implants; Ruly choose Dr. Afar. Although Renzo never said he was a dentist, Ruly believed he was “better than a dentist.” He and Renzo became friends.

Ruly testified that Renzo took multiple impressions of his mouth, manufactured and placed temporary dentures into his mouth, and made numerous adjustments to those dentures. Renzo was alone when he performed this work. Renzo also advised Ruly on the quality of different types of implants and gave him an opinion on whether to have an implant removed. Ruly paid Renzo $20,000 for his work, which was partially in cash and partially by check.

Dr. Afar subsequently severed one of Ruly’s nerves while working on his implants. Ruly sued Dr. Afar and Renzo, which resulted in a total settlement of $500,000.

Myriam testified that Renzo, whom she met through her husband, also performed dental work on her around the same time. According to Myriam, Renzo removed one of her existing crowns and installed a new one. She did not know whether he attached the crown with cement or with a screw. Renzo also filed down one of her existing teeth using an electric tool, and then attached a veneer to it. Myriam paid Renzo for the work in cash and by check.

At the end of the hearing, Esebag argued the Papadopulos testimony was admissible because it showed Renzo employing the “exact same modus operandi” as he did in this case. He also noted the Papadopuloses paid partially in cash, which showed Renzo wanted to evade taxes. The court noted the evidence would not be admissible to show tax evasion, but it wanted to see how the case played out before making a final decision on its admissibility for other purposes.

At a subsequent hearing on the issue, the court indicated it was disinclined to admit the Papadopulos testimony to show identity. Esebag argued the evidence could alternatively be admitted to impeach Renzo’s testimony. He pointed to the following exchange during Renzo’s cross-examination:

“Question: Do you know how to fix a chipped tooth?

Answer: No.

Question: Do you know how to cement on a

veneer?

Answer: I know, but I don’t do it.

Question: Do you know how to take impressions?

Answer: No.

Question: Do you know how to cement in final

restorations?

Answer: No.”

Esebag argued the Papadopulos testimony contradicted Renzo’s assertions that he did not know how to take impressions or cement final restorations. The court responded that the value of the testimony for that purpose “was not anywhere near sweeping enough to overcome the prejudicial value.”

The court ultimately sustained the objections to the Papadopulos testimony “on the grounds that it is not probative and whatever probative value is vastly outweighed by the prejudicial effect.”

After the verdict, Esebag filed a motion for new trial on the ground that the court erroneously excluded the Papadopulos testimony. Esebag argued the testimony was admissible to show identity and a common plan, and for impeachment. At the hearing on the motion, the court rejected Esebag’s identity and impeachment arguments for essentially the same reasons it rejected them at trial. As to Esebag’s claim that the evidence was admissible to show a common plan, the court noted there was “not a common plan to do anything.”

II. Relevant Law

Section 1101, subdivision (a), sets forth the “strongly entrenched” rule that propensity evidence, including evidence of specific instances of prior conduct, is not admissible to prove a defendant’s conduct on a specific occasion. (People v. Jackson (2016) 1 Cal.5th 269, 299.) The reason for this rule is not that such evidence is irrelevant; “on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” (Michelson v. United States (1948) 335 U.S. 469, 475–476; accord, People v. Jackson, supra, at p. 300.)

At the same time, evidence of a defendant’s prior acts is admissible under section 1101, subdivision (b), “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act.” (§ 1101, subd. (b).) The degree of similarity between the acts is a key factor, and “there exists a continuum concerning the degree of similarly” required for admission, “depending upon the purpose for which introduction of the evidence is sought[.]” (People v. Soper (2009) 45 Cal.4th 759, 776.) The least degree of similarity is required to prove intent. (Ibid.) “By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity.” (Ibid., fns. omitted.)

Prior acts evidence that is admissible under section 1101 may nevertheless be inadmissible under section 352. The court has discretion to exclude evidence under section 352 “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.)

We review the trial court’s determination of the admissibility of prior acts evidence for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) Under that standard, we will not disturb the court’s determination “ ‘except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125, italics omitted.)

III. Analysis

A. The Evidence Was Not Admissible to Show Identity

Esebag argues the Papadopulos testimony was admissible to show it was Renzo, and not Ilona or Dr. Sison, who performed the dental work on him. We disagree.

“The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the [acts] must be so unusual and distinctive as to be like a signature.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).) “The inference of identity need not depend on one or more unique or nearly unique common features; features of substantial but lesser distinctiveness may yield a distinctive combination when considered together.” (People v. Scott (2011) 52 Cal.4th 452, 473.)

Here, Esebag points to five similarities between the treatment he received in this case and Renzo’s treatment of the Papadopuloses, which he claims are relevant to the identity issue. Specifically, he contends the person who performed the services (1) created the impression he or she was qualified to perform the necessary dental work; (2) provided dental consultations inside an office, where he or she examined the patients in a dental chair and displayed the trappings of a dentist; (3) provided the patients advice regarding their dental needs and treatment plans; (4) performed dental procedures inside the patients’ mouths; and (5) accepted payment by a combination of cash and check.

None of these similarities, considered separately or together, even begin to approach being so unusual or distinctive as to be like a signature. Except for the partial-cash payment, these same characteristics would be present virtually every time a patient receives dental services, no matter who provides those services. The same similarities, therefore, would exist regardless of whether Renzo, Ilona, or Dr. Sison preformed the work on Esebag. As a result, they offer no clues as to the identity of the person who performed the dental services at issue in this case.

The same is true of the partial-cash payments. Common sense suggests such payment arraignments are not unusual in the dental business. But even if Renzo were the only person in the world to request or accept partial-cash payments, it would still not tell us anything about who performed the services on Esebag. The parties agree Renzo was tasked with collecting the payments from Esebag for the work. Esebag, however, offers no reason why Renzo would collect partial-cash payments if he performed the work, but not if Ilona or Dr. Sison did so. Therefore, there is nothing about the nature of the payments that sheds light on who performed the services.

B. The Evidence Was Not Admissible to Show a Common Plan

Esebag next argues the trial court should have admitted the Papadopulos testimony to show Renzo was operating pursuant to a common plan “to enrich himself by performing unlicensed dentistry on unsuspecting patients.” We disagree.

“[E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.” (Ewoldt, supra, 7 Cal.4th at p. 403.) “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (Ibid.)

In Ewoldt, supra, 7 Cal.4th 380, the Supreme Court distinguished common plan evidence from identity evidence. The court explained that evidence of a common plan is probative “ ‘to show that the act was in fact done or not done.’ ” (Id. at p. 393.) In other words, it is admissible “to establish that the defendant committed the act alleged.” (Id. at p. 394, fn. 2.) Identity evidence, in contrast, “is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator.” (Ibid.)

Because evidence of a common plan is relevant to prove an act occurred, it will generally be excluded when “it is beyond dispute that the charged offense was committed by someone” and “the primary issue to be determined is whether the defendant was the perpetrator of that crime. . . . Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value.” (Ewoldt, supra, 7 Cal.4th at p. 406.)

As applied here, evidence of a common plan would have been admissible only to show Esebag received specific dental services. That issue, however, was not in dispute; everyone agreed that he had. The primary contested issue was instead the identity of the person who provided those services. Under such circumstances, evidence of a common plan was not merely cumulative; it was entirely irrelevant. (§ 210 [evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action”].) The trial court, therefore, did not err in excluding the Papadopulos testimony as common plan evidence.

Esebag’s reliance on Butler v. LeBouef (2016) 248 Cal.App.4th 198 (Butler), is misplaced. That case involved a dispute over whether the defendant drafted a trust and will for an elderly person in which the defendant was the principal beneficiary. (Id. at p. 202.) The court upheld the admission of evidence showing the defendant had previously drafted two trusts in which he and his associates were named beneficiaries. The court explained the evidence was relevant to show a common plan or scheme, noting, among other similarities, the trusts involved elderly trustors, two of the trusts were drafted the same year, there were “striking” physical similarities between some of the trusts, and the defendant, his friends, and his associates were named as beneficiaries and trustees. (Id. at pp. 206–207.)

Although the Butler court found the prior acts evidence was admissible to show a common plan, it seems the evidence was actually used to show identity. There was no question the will and trust were drafted by someone; the only question was who did so. In that situation, Ewoldt teaches the prior acts evidence might be admissible to show identity, but not a common plan. The Butler court, however, did not address Ewoldt.

Even if the Butler court properly admitted the evidence to show a common plan, it does not compel admission of the Papadopulos testimony in this case. There is no bright line dictating when prior acts are admissible to show a common plan; instead, trial courts are vested with considerable discretion to make those determinations on a case-by-case basis. Reviewing courts, in turn, give considerable deference to the trial courts’ decisions. That it was not an abuse of discretion to admit the prior acts evidence under the unique facts in Butler, therefore, does not mean it was an abuse of discretion for the trial court to refuse to admit prior acts evidence under the unique facts here.

Regardless, the similarities in Butler were significantly more substantial than in this case. In Butler, some of the relevant acts took place within the same year, involved the same “coconspirators,” and displayed “striking” physical similarities. Here, in contrast, the acts occurred at least seven years apart, Renzo is the only consistent player, and none of the similarities could be characterized as “striking.”

Esebag also overlooks numerous differences between his treatment and the Papadopuloses’ treatment that strongly suggest there was not a common plan in both instances. For example, Esebag claimed Renzo approached and lured him away from his customary dentist by offering to do the work for less money. Ruly Papadopulos, in contrast, testified he was the one who first approached Renzo, and the Papadopuloses never claimed Renzo represented he could do their dental work for less money than other dentists. Esebag, moreover, insisted Renzo tried to cover his tracks by claiming other dentists performed the work and fabricating treatment records; there is no evidence that Renzo did anything similar in response to the Papadopulos lawsuit. In light of these significant differences, the trial court could have reasonably concluded the evidence did not sufficiently show Renzo’s treatment of the Papadopuloses and his alleged treatment of Esebag were manifestations of the same common plan. It did not abuse its discretion in refusing to admit the evidence for such a purpose.

C. The Court Did Not Abuse its Discretion in Refusing to Admit the Evidence for Impeachment

Esebag argues the trial court should have admitted the Papadopulos testimony to impeach Renzo’s testimony, elicited on cross-examination, that he did not know how to take an impression of a patient’s mouth. The trial court excluded the evidence under section 352, noting the value of the testimony for this purpose “was not anywhere near sweeping enough to overcome the prejudicial value.” The court did not abuse its discretion in doing so.

Esebag contends the primary value of the impeachment would have been as an attack on Renzo’s credibility. It is doubtful, however, the impeachment would have had much effect for that purpose, given Renzo’s testimony was not totally inconsistent with the Papadopulos testimony.

Counsel’s question to Renzo during cross-examination—“do you know how to take an impression”—was vague and could reasonably be interpreted to mean, “do you know how to properly take an impression.” The Papadopulos testimony suggests the answer to that question was “no.” According to Ruly Papadopulos, the dentures Renzo fabricated from an impression did not fit well and needed to be adjusted numerous times. Given Renzo was very experienced in fabricating dental prosthetics, it can be reasonably inferred the ill-fitting dentures were the result of a poor impression. If so, Renzo’s answer would have been consistent with Ruly’s testimony. Consequently, the testimony had little, if any, probative value as an attack on Renzo’s credibility.

Esebag suggests the Papadopulos testimony was nonetheless admissible because it was not unduly prejudicial. He argues the evidence was not inflammatory or likely to invoke an emotional response from jurors, and its admission would not have denied Renzo and Ilona a fair trial. Even if this were true, prior bad acts evidence is inherently prejudicial, and there is always a risk the jury will use it for an improper purpose. (See People v. Tran (2011) 51 Cal.4th 1040, 1047 [“Without doubt, evidence a defendant committed an offense on a separate occasion is inherently prejudicial.”]; People v. Humiston (1993) 20 Cal.App.4th 460, 481 [“evidence of prior bad acts always involves the risk of prejudice”].) There was also a substantial danger the Papadopulos testimony would confuse the issues. In light of these risks, coupled with the evidence’s minimal probative value, we cannot say the court abused its discretion in excluding the Papadopulos testimony. (See People v. Mendoza (2011) 52 Cal.4th 1056, 1089–1090 [section 352 gives trial courts broad power to prevent nitpicking wars of attrition over collateral credibility issues].)

Esebag advances two other bases for admitting the Papadopulos testimony for impeachment, neither of which has merit. First, he contends the evidence would have contradicted testimony that Renzo was “only a dental assistant or technician.” The parties, however, did not dispute that fact. Indeed, Esebag’s claims were premised on his allegation that Renzo performed dental work despite being only a dental assistant or technician.

Second, Esebag argues the prior acts evidence would have impeached Renzo’s testimony that he did not know how to cement final restorations. The Papadopulos testimony, however, did not contradict Renzo on that issue. It is undisputed that Renzo did not install final restorations in Ruly’s mouth, and Myriam claimed not to know if Renzo attached her crown with glue or a screw. Renzo’s testimony that he did not know how to cement a final restoration is wholly consistent with this testimony.

D. The Evidence Was Not Admissible to Show Renzo “Practices Dentistry”

Finally, Esebag argues the Papadopulos testimony was admissible to prove Renzo “practices dentistry,” which would counter the defense that Renzo was “only a dental assistant or technician.” Once again, we disagree. As discussed above, whether Renzo was “only a dental assistant or technician” was not disputed; everyone agreed that he was. Whether Renzo “practices dentistry” was also not at issue. Rather, the primary issue for the jury to decide was whether Renzo, on specific occasions, performed dental services on Esebag. Esebag offers no persuasive reason why the Papadopulos testimony was admissible on that issue.

DISPOSITION

The judgment is affirmed. Respondents are awarded costs on appeal.

BIGELOW, P. J.

WE CONCUR:

GRIMES, J. WILEY, J.