Martinez v. Mayberry CA1/3

Filed 3/24/15 Martinez v. Mayberry CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

ENRIQUE ALVAREZ MARTINEZ, Plaintiff and Respondent, v. A142389 ENNIS TAYLOR MAYBERRY III et al., (Contra Costa County Defendants. Super. Ct. No. MSC11-00333) AMAMGBO & ASSOCIATES et al., Claimants and Appellants.

Appellants Amamgbo & Associates, Emeziem & Ogbu, LLP, and Daniel Donner appeal from those portions of the trial court’s orders of February 4, 2014 and August 21, 2014, 1 as expunged their liens for services allegedly provided to the plaintiff in this personal injury action. 2 As we now discuss, we agree with appellants’ contention that the trial court acted in excess of its jurisdiction when it expunged their liens. Accordingly, we shall remand the matter to the trial court with directions to modify its orders by deleting those portions as expunged appellants’ liens.

1 In the absence of a showing of prejudice, we deem appellants’ timely July 3, 2014 notice of appeal from the February 4, 2014, minute order to encompass the August 21, 2014, written order. (Cal. Rules of Court, rules 8.104 (a)(1)(C) [time to appeal], (d)(2) [premature notice of appeal].) 2 Plaintiff has not filed a respondent’s brief.

1

FACTUAL AND PROCEDURAL BACKGROUND In May 2009, plaintiff Enriquez Martinez retained the law firm of appellant Amamgbo & Associates to represent him in a personal injury action against defendant Ennis Taylor Mayberry III, seeking to recover damages incurred in an accident. About a year later in September 2010, Amamgbo & Associates associated the law firm of appellant Emeziem & Ogbu, LLP, to handle the matter. Several months later in February 2011, Emeziem & Ogbu, LLP, filed a complaint in the trial court and arranged for a process server to serve defendant with the summons and complaint. After service and before defendant could file an answer plaintiff discharged Amamgbo & Associates and Emeziem & Ogbu, LLP, and ultimately retained new counsel in May 2011. From June 6, 2009 to January 13, 2010, appellant Daniel Donner, an acupuncturist, provided services to plaintiff for injuries he purportedly sustained in the accident. After the underlying action settled, defendant’s counsel, together with plaintiff’s new counsel, filed a motion to enforce the settlement and to resolve the outstanding liens that had been filed by appellants. Appellants filed opposition. The trial court granted the motion to enforce the settlement and expunged appellants’ liens. The trial court concluded that Amamgbo & Associates could not enforce a lien against the settlement funds based on its retainer agreement with plaintiff; Emeziem & Ogbu, LLP, was not entitled to a lien against the settlement funds because it did not have any agreement with plaintiff allowing for such a lien; and Donner could seek payment for his services without asserting a lien against the settlement funds. Appellants timely appeal ensued.