KRIEGLER, J.
Plaintiff, cross-defendant, and appellant Mary C. Theurer
We conclude that Mary failed to obtain a ruling on her motion to amend the complaint, the trial court's evidentiary rulings on expert testimony did not constitute an abuse of discretion and no prejudice has been shown, Mary was not prejudiced by the refusal to give an instruction on uncontroverted evidence, the verdicts are not inconsistent, and the court properly denied the motion to amend the judgment to award prejudgment interest. Therefore, we affirm.
Mary and Michael Theurer were married for 21 years. Mary, represented by Attorney Michael Abrams, filed a petition for dissolution of marriage in April 1998. The Theurers have three children, one of whom was a minor at the time of the dissolution proceedings and one of whom is a disabled adult. A temporary custody order was entered giving 80 percent of the custodial time for the minor son to Mary and the remaining 20 percent to Michael. Under the temporary order, Mary received $20,000 per month in spousal and child support. In November 1998, Mary substituted K&A as her attorneys of record in the dissolution proceedings.
In January 2000, K&A advised the family law court that community funds would be used to pay the disabled adult son's medical costs that were not covered by insurance. K&A did not reserve jurisdiction to reallocate the cost of the uninsured medical care at trial. The court also awarded $34,000 per month in spousal and child support to Mary, including $298,000 in back support.
K&A agreed to represent Mary in conservatorship proceedings for her disabled adult son, although the attorneys explained that they had little experience in the area of conservatorships. The Theurers were appointed coconservators, but Michael sought several times to have Mary's powers as coconservator suspended.
In 2000 and 2001, K&A discussed the issue of reallocating medical expenses for the disabled adult son with Mary and opposing counsel. The disabled adult son's medical expenses were $19,000 per month for room and care, plus an additional $7,000 per month in other expenses. In March 2001, Michael's attorney offered that Michael would pay 60 percent of the costs and Mary would pay 40 percent. In April 2001, K&A offered to allocate the costs based on percentages more favorable to Mary, but the offer was not accepted. No settlement was reached on this issue.
In September 2001, Kolodny forwarded an e-mail that he had received from Mary to a junior associate with a message stating that he was not going to read the e-mail. He instructed the associate not to spend time on anything that was not absolutely necessary, until a bill payment issue was resolved. Kolodny made similar statements over the course of K&A's representation of Mary.
In December 2001, K&A filed a motion in one of the proceedings seeking supplemental health insurance benefits for the disabled adult son. The motion included the declaration of a health insurance expert recommending that supplemental health insurance might exist through Blue Shield under certain conditions. The family law court granted the motion and appointed insurance coverage expert Renee Glickman Cohn to investigate the availability of supplemental health insurance benefits for the disabled adult son. K&A provided some materials to Cohn, but no supplemental insurance was obtained.
The family law court appointed independent child custody evaluator Ann Convertino to provide a recommendation as to appropriate custody arrangements for the Theurers' minor son. Michael offered to settle the custody dispute by dividing custodial time equally, based on alternating weeks, but Mary did not accept his offer. The evaluator recommended the Theurers share equal custody. K&A told Mary that the only way to effectively counter the evaluator's report was through an expert witness, so Mary hired and deposed an expert witness in anticipation of a trial on the custody issue. K&A filed a trial brief for the bifurcated trial on the issue of custody requesting an equal division of custodial time, with alternating weeks, but specifying that during Michael's custodial week, the minor son would be with Mary after school until Michael picked him up after work at a set time, such as 8:00 p.m. each night.
On August 28, 2002, the parties appeared for trial on the issue of custody of the minor child. After discussion, the parties decided to meet separately with the family law judge, without counsel or a court reporter. No additional witnesses gave testimony to the court. The family law court awarded the Theurers equal custodial time with alternating weeks based on the information received from the parties during the in-chambers proceeding and the custody evaluation report.
Mary's income and expense declaration, dated November 1, 2002, stated that she had incurred fees and costs totaling $911,108.31 over 47 months that K&A had billed her for services on her behalf. Of that amount, she had spent $635,068.52 for matters related to the dissolution and $276,039.79 for matters related to her disabled adult son. She had incurred fees and costs for accounting experts related to the valuation of Michael's business and other services totaling $63,112 as of September 30, 2002. Mary's legal expenses were estimated to be $34,126 per month and her share of the costs for her disabled adult son's health care was $19,000 per month.
In March 2003, K&A was substituted out as Mary's attorney of record in the conservatorship proceeding.
A trial to determine the remaining property issues was scheduled to begin in August 2003. On July 21, 2003, K&A wrote a letter to Michael's attorney stating that Mary had agreed to stipulate to a value of $440,000 for the family residence. K&A prepared a stipulation valuing the family residence at $440,000 as of June 26, 2003, and stating that the value would be conclusive at trial. Michael's attorney signed the stipulation, but Michael did not. As a result of the stipulation, the parties cancelled the depositions of their appraisers. At trial, the family law court determined the value of Michael's practice, but other issues concerning real property were continued. The stipulation was not finalized.
In March 2004, the family law court entered an order permitting K&A to withdraw as Mary's counsel. Mary substituted Attorney Hugh Lipton as her counsel in the dissolution matter. Real property values increased and at the time of trial on the remaining property issues, Michael brought a motion to be relieved from the real property stipulation. Since the stipulation had never been finalized with the signatures of the parties, the court did not enforce it. Mary hired a new expert to appraise the value of the property. The property was ultimately assessed at a value of $630,000. In addition, Michael claimed that he had paid for the disabled adult son's care from his separate property and was entitled to reimbursement.
On February 2, 2005, Attorney Martin Stanley filed the instant complaint on Mary's behalf against K&A for professional negligence and breach of contract. On April 6, 2005, K&A filed a cross-complaint for breach of contract, account stated, open book account, and quantum meruit based on unpaid attorney fees. K&A sought $289,213.87, plus interest accruing based on their written agreement with Mary.
A jury trial commenced on July 21, 2008. Mary filed a motion to amend the complaint to add a cause of action for breach of fiduciary duty in opposition to a motion in limine that had been filed by K&A. The trial court ruled on the remaining motions in limine, but did not mention Mary's motion to amend.
K&A objected that Mary's expert witness Robert Holmes lacked sufficient foundation to opine that it fell below the standard of care to advise Mary to proceed with the in-chambers proceeding to determine custody issues. Holmes had reviewed Convertino's child custody evaluation, but had not reviewed the other evidence that would have been presented in a formal trial of custody issues. The trial court sustained the objection.
Holmes testified that the following conduct fell below the standard of care: filing a trial brief recommending an equal division of custodial time, when Mary's e-mail to K&A stated that she wanted 75 percent custodial time; failing to ensure the stipulation was signed setting the value of the house at $440,000, causing Mary to have to pay the difference between the stipulated price and the increased value to retain the house; not following up with insurance expert Cohn, who would have maximized the benefits from disability and health insurance carriers; and stipulating to pay the disabled adult son's uninsured medical expenses from community property and allocate the expenses equally between the parties without reserving jurisdiction to reallocate the expenses at trial.
Mary also called ethics expert Arthur Margolis. K&A had filed a motion in limine to exclude certain testimony by Margolis, which Mary opposed and subsequently filed additional authority. A hearing under Evidence Code section 402 was conducted during the trial on July 30, 2008. The trial court listed areas that should not be mentioned because they were not applicable to any claim in the case, including breach of fiduciary duty. However, the court permitted Margolis to opine as to whether K&A's services were within the standard of care. Margolis testified that several provisions of K&A's retainer agreement fell below the standard of care, because they were not fair, reasonable, and fully disclosed. In addition, he stated that it fell below the standard of care to refuse to do work until a bill was paid.
Lipton testified at trial on behalf of Mary. He was familiar with the evidence that would have been presented at trial, although he had not read the transcript of the hearing which led to the in-chambers proceeding. Lipton opined that it fell beneath the standard of care for K&A to allow the in-chambers child custody hearing procedure.
Lipton also opined that K&A's actions with regard to the property value stipulation fell below the standard of care. Lipton had to conduct research, prepare documents, and appear at two hearings in connection with the motion to set aside the property value stipulation. He estimated that he charged Mary approximately $400 per hour for up to 14 hours of work, which was a total of $5,600 in attorney fees, plus travel time. He stated that as a result of K&A's failure to ensure that the stipulation was signed, the stipulation was not enforced and Mary had to pay an additional $95,000 to retain the house.
During the testimony of K&A's expert witness Robert Kaufman, Mary objected that Kaufman lacked foundation to opine as to whether the in-chambers proceeding was within the standard of care. The trial court allowed Kaufman to render opinions, subject to a motion to strike if the court's review of the record showed Holmes's opinions had been excluded on the same foundation. Mary's attorney later requested a ruling on a motion to strike Kaufman's testimony, which the court denied.
In closing remarks, Mary's attorney set forth the damages that Mary was seeking. He requested that the jury award Mary all of the fees she had paid for services that were unreasonable or unnecessary. He argued that it was unreasonable for K&A to have charged $1.1 million in fees for its representation, including $800,000 that Mary had already paid to K&A when Mary's share of the community property was approximately $1.7 million. He argued that K&A had not been successful on any important issues other than valuation of the business: Mary paid K&A to have an insurance advisor appointed, but any opportunity to secure supplemental insurance was lost when K&A failed to follow up; K&A's work related to the custody proceeding resulted in a loss of custody time for Mary; and K&A should not be paid for work in preparation for a trial which did not take place. Furthermore, he argued that attorney fees incurred after January 1, 2000, should be subtracted from K&A's claim for fees, because the fees were unreasonable and K&A's breaches of the contract caused Mary damages.
Mary's attorney specifically argued that Mary should not have to bear the charges caused by failing to finalize the stipulation, including the increase of $95,000 that she had to pay to retain the property and "roughly $20,000" in costs to appraise the property and prepare the stipulation. He noted that both Lipton and Holmes testified that K&A's conduct concerning the stipulation for the value of the property and the insurance issues fell below the standard of care and their testimony was uncontroverted.
Mary's attorney also specifically argued that the expenses for the disabled adult son were incorrectly allocated. The incorrect allocation cost Mary $9,000 per month for two years, for a total loss of approximately $200,000.
In summation, Mary's attorney requested that the jury award $95,000 plus costs resulting from the failure to finalize the stipulation, $200,000 for failing to reserve jurisdiction to reallocate uninsured medical expenses, and $800,000 as reimbursement of unreasonable attorney fees. As a result, K&A would retain attorney fees of $300,000 that had already been paid as the reasonable fair value of the work that K&A had performed.
In K&A's closing argument, K&A's attorney noted that no insurance policy that would have paid better benefits had been produced. K&A argued that no expert had stated that any particular work should not have taken as long as K&A billed for it. Instead, Mary was arguing that based on her share of the community property, K&A's bills were unreasonable. However, K&A argued, it was Mary's decision to continue to incur legal expenses, much of which related to noneconomic issues. K&A's office administrator had admitted during trial that Mary was entitled to a credit of $12,738 for an overcharge, as well as 10 percent interest shown to be accruing. Therefore, K&A's attorney argued that Mary owed a balance of $247,587. He added, "By the way, there is interest for what she didn't pay only to the date of that last bill. There is no interest after that."
The trial court declined to instruct the jury that uncontroverted expert testimony in a professional malpractice case must be accepted as true. On August 12, 2008, the jury returned a special verdict finding that K&A failed to meet the applicable standard of care in rendering legal services to Mary, causing damages of $125,000. The jury also found that Mary did not do all, or substantially all, of the significant things required by her contract with K&A, nor was she excused from doing the significant things required under the contract. The jury found K&A did all, or substantially all, of the significant things that the contract with Mary required them to do and all the conditions occurred that were required for Mary's performance. Mary failed to do something required by the contract, harming K&A, and K&A's damages were $246,773.41. Judgment was entered on the special verdict on August 15, 2008.
The trial court denied K&A's motion to amend the judgment to award prejudgment interest. Mary and K&A each filed timely notices of appeal from the judgment.
Mary contends the trial court abused its discretion by denying her motion to amend the complaint to add a cause of action for breach of fiduciary duty. Based on our review of the record, we conclude that Mary failed to obtain a ruling on the motion to amend and the issue is therefore waived.
As stated above, K&A filed a motion in limine to exclude certain testimony of Mary's ethics expert Margolis. Mary filed an opposition to the motion and subsequently filed additional authority. A hearing under Evidence Code section 402 was conducted during the trial on July 30, 2008. Margolis stated various opinions concerning K&A's retainer agreement, K&A's representation of Mary in the conservatorship proceedings, and the rates reflected in certain bills. Margolis also stated that K&A's threats to stop working on the case unless a fee was paid fell below the standard of care. In ruling on the motion in limine, the trial court listed several areas that should not be mentioned because they were not applicable to any claim in the case, including breach of fiduciary duty. However, the court permitted Margolis to testify as to whether K&A's performance fell below the standard of care.
The following day, Mary's attorney asked Margolis whether it fell below the standard of care to threaten to stop working unless fees were paid. Margolis answered, "Yes, it was a breach of fiduciary duties." K&A objected and the answer was stricken. Mary's attorney asked the question again and the witness agreed that it fell beneath the standard of care.
K&A had also filed a motion in limine to exclude testimony about emotional distress related to custody issues. Mary had filed an opposition. The motion in limine related to emotional distress testimony was heard on August 1, 2008. Mary's attorney argued that some California cases had allowed recovery of emotional distress damages against attorneys in negligence actions and clearly allowed emotional distress damages for a breach of fiduciary duty. Mary's attorney stated that if the trial court were inclined to grant the motion in limine, Mary would move to add a breach of fiduciary duty claim against K&A. K&A argued that it was inappropriate to award damages in a legal malpractice case for emotional distress resulting from a reduction in custody time. Mary's attorney repeated that he would file a brief to amend the complaint to include a breach of fiduciary duty claim, which would allow emotional distress damages, if the trial court granted the motion in limine. The court stated, "When you file that motion, I will consider it. [¶] I want to make sure[,] pertaining to all of the issues in this case, what is the claimed source of emotional distress? Only the division of child custody or anything else?" Mary's attorney responded, "No, also the lawyer's behavior to the client with regard to the pressure situation." The court asked, "It's all related to the child custody issue?" Mary's attorney said, "Correct." The court asked, "No other outstanding issues?" Mary's attorney answered, "Other than perhaps the breach of fiduciary claim, that would be a different issue. As far as this issue, that is it." The court added, "On the emotional distress." The court stated that it would rule on the emotional distress issue before Mary rested her case.
On August 4, 2008, Mary filed a document captioned "Plaintiff's Motion to Amend Complaint to Conform to Evidence" with a notation at the bottom of each page identifying the document as "Plaintiff's opposition to Defendants['] motion in limine to exclude certain testimony of Plaintiff's expert Arthur Margolis." However, the first sentence of the motion stated that it was in opposition to the motion in limine to exclude certain testimony related to emotional distress. The points and authorities requested leave to amend the complaint to conform to evidence submitted at trial showing a breach of fiduciary duty. Mary argued that the facts which supported the cause of action for legal malpractice also supported the proposed cause of action for breach of fiduciary duty. Mary stated that K&A breached their fiduciary duties, "in particular, those related to the billings." She also stated that the amendment would allow an award of emotional distress damages.
On August 5, 2008, the trial court ruled on the motion in limine to exclude damages for emotional distress related to lost custody time. The court found that California law does not recognize a claim for emotional distress arising out of loss of filial relations. Moreover, emotional distress damages were not recoverable because Mary essentially was claiming damages arising out of loss of filial consortium, which is not recognized in California, and decrease in custody time. The court granted the motion in limine to exclude any evidence with respect to emotional distress damages.
The parties and the trial court discussed jury instructions on August 7, 2008. One of the instructions proposed by Mary stated that an attorney has a fiduciary duty to his client to act with the utmost good faith and in the best interest of the client. K&A objected that it was inappropriate to give a fiduciary duty instruction in a negligence and breach of contract case and there was no basis for a breach of fiduciary duty claim. The court ruled that the instruction would be given, because although there was no breach of fiduciary duty claim, the jury should be instructed with regard to the relationship.
It is clear from our review of the record that Mary never requested a ruling on the motion that she filed to amend the complaint. Failure to press for a ruling results in the waiver of the issue. (People v. Braxton (2004) 34 Cal.4th 798, 813; People v. Brewer (2000) 81 Cal.App.4th 442, 461-462; Fibreboard Paper Products Corp. v. East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO (1964) 227 Cal.App.2d 675, 698-699.)
In this case, the trial court did not rule on Mary's motion to amend the complaint to add a cause of action for breach of fiduciary duty and Mary failed to bring the motion to the court's attention. We note that Mary's written pleading was confusing. The bottom of each page stated that it was an opposition to the motion in limine to exclude expert Margolis's testimony, which was no longer at issue. However, the first sentence stated that it was an opposition to K&A's motion in limine to exclude certain evidence of emotional distress, which the parties had agreed was limited to emotional distress related to a reduction in custody rights. The court subsequently ruled that damages for emotional distress as a result of a reduction in custodial time were not available in a legal malpractice action, a ruling which Mary has not appealed. Mary could have requested a ruling at that time on the written motion to amend the complaint to add a cause of action for breach of fiduciary duty and having failed to have done so, the issue is waived.
Mary contends the trial court abused its discretion by excluding her expert witness's opinion and admitting K&A's expert witness's opinion as to whether the in-chambers custody proceeding fell below the standard of care. We find no abuse of discretion as to either ruling.
"Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 717.) That standard also applies to rulings excluding expert opinion evidence. (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599.) A party challenging a trial court's evidentiary rulings must demonstrate both an abuse of discretion and a consequent miscarriage of justice. (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 456.)
The trial court has broad discretion in ruling under Evidence Code section 352 on the admissibility of evidence and acts within its discretion when excluding cumulative and time consuming evidence. The section 352 weighing process depends on the court's consideration of the facts and issues of the case before it rather than on mechanical, automatic rules. (Aguayo v. Crompton & Knowles Corp. (1986) 183 Cal.App.3d 1032, 1038.)
Evidence Code section 353 provides: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."
Evidence Code section 354 provides: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination."
A miscarriage of justice should be declared only when the appellate court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
On July 28, 2008, K&A objected that Holmes lacked foundation to provide an opinion concerning K&A's advice to proceed with the in-chambers custody proceeding. Holmes, who is a certified family law specialist, had reviewed the pleadings and trial briefs filed prior to the in-chambers proceeding, as well as correspondence between Mary and K&A, the Convertino custody evaluation, and the transcript of the proceedings in the courtroom immediately prior to the in-chambers proceeding. However, Holmes had not read any of the deposition testimony that was given by any of the potential witnesses at the custody trial, including the depositions of Mary, Michael, or two of Michael's expert witnesses. Holmes had not reviewed the exhibit lists. Without full knowledge of the evidence to be presented at trial, the trial court found Holmes lacked the necessary foundation for his opinion that K&A's advice to proceed with the in-chambers proceedings fell beneath the standard of care. The court sustained the objection.
On July 30, 2008, Lipton, who is also a certified family law specialist, testified that he had reviewed Convertino's report, as well as the depositions of Mary, Michael, Convertino, and several expert witnesses. He did not know what a few of Michael's witnesses would have testified to if the custody matter had proceeded to trial and he had not read the transcript of the August 28, 2002 hearing, but he had read the trial court's minute order. Lipton opined that it fell beneath the standard of care for K&A to allow the in-chambers child custody hearing procedure, because Michael was more articulate and forceful than Mary, and without a court reporter, Mary had no right to appeal any decision of the trial court.
On August 6, 2008, K&A's expert witness Kaufman testified. Kaufman is a family law attorney, but he is not a certified family law specialist. He had reviewed the transcript of the August 28, 2002 hearing, the Convertino custody report, and part of Convertino's deposition. He did not review e-mail messages closely. He explained that Convertino's report presented both parties' views of the case, including setting forth the testimony of witnesses the parties had agreed Convertino could interview.
Mary objected that Kaufman's opinion lacked foundation for the same reason that the trial court had sustained K&A's objection to testimony of Mary's expert witness Holmes on the same subject. The court ruled the witness could testify and render opinions, subject to objections to specific questions and a motion to strike if the court's review of the record revealed Holmes's opinions had been excluded based on the same foundation. Kaufman testified that it was not beneath the standard of care for K&A to recommend to Mary to go forward with the in-chambers proceeding, because the Convertino report contained all of the testimony that would have been received at trial, so the court reviewed the evidence of both sides from different witnesses. He stated that in order to present new evidence, a new report would have to have been prepared. The following day, Mary's attorney asked for a ruling on a motion to strike Kaufman's testimony, and the trial court denied the motion. Mary did not ask to recall Holmes to provide further testimony.
We conclude the trial court did not abuse its discretion when it excluded Holmes's opinion as to whether K&A's advice to proceed with the in-chambers proceeding fell below the standard of care. Holmes had not reviewed the depositions of witnesses or documentary evidence that would be presented at trial. He did not mention that the Convertino report, which he had read, set forth evidence that would be presented at trial. He failed to establish a sufficient foundation for his opinion that it fell below the standard of care to advise Mary to go forward with the in-chambers procedure, because he did not establish he was familiar with the evidence that would have been presented to the family law court at a trial of the custody issues. Kaufman subsequently explained that the contents of the Convertino report provided a sufficient foundation for an opinion, but Mary never requested permission to recall Holmes to provide additional opinion testimony.
We also conclude the trial court did not abuse its discretion by admitting Kaufman's opinion testimony as to whether K&A's advice to proceed with the in-chambers proceeding fell below the standard of care based on the foundation shown at trial. Kaufman explained that although he had not read certain source material, he had read the Convertino report and that report contained all of the evidence the parties would have presented at trial. Mary did not dispute these statements.
Even were we to conclude the trial court abused its discretion, either by excluding Holmes's opinion or admitting Kaufman's testimony, our review of the record shows no miscarriage of justice resulted. Lipton testified to the same opinion that Holmes would have given. The foundation for Lipton's testimony was superior to both of the designated expert witnesses. Lipton had distinguished qualifications as a credentialed family law specialist and superior knowledge of the quality of the witnesses and the evidence that would have been presented in a custody trial based on his familiarity with the case. After Kaufman testified based on the Convertino report, further testimony from Holmes would have been cumulative of Lipton's testimony.
We note that even if the jury had found that it fell below the standard of care to advise Mary to proceed in-chambers, Mary did not show that any of the damages she was seeking to recover were caused by the advice. On appeal, Mary argues she would have been entitled to recover the fees that K&A charged in preparation for the custody trial that did not occur, but this is clearly incorrect. The fees that K&A charged to prepare for the custody trial would have been necessary regardless of K&A's advice as to how to proceed on the date set for trial. In fact, Mary's claim implied that K&A should have advised her to proceed with a trial on the custody issues, which would have resulted in additional attorney fees. There was no evidence or argument that Mary incurred any fees or other damages as a result of agreeing to the in-chambers proceeding.
We conclude the trial court did not abuse its discretion by finding Holmes's testimony lacked foundation or by admitting Kaufman's testimony once the foundation for it was better explained. Moreover, no miscarriage of justice occurred as a result of the evidentiary rulings, because Lipton was a persuasive witness who testified freely to the same opinion that Holmes would have provided.
Mary contends the trial court erred by refusing to instruct the jury as follows: "The statement of uncontradicted testimony of an expert witness on the standard of care in a professional malpractice case is conclusive." We conclude that any error was not prejudicial.
"A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) "`"A reviewing court must review the evidence most favorable to the contention that the requested instruction is applicable since the parties are entitled to an instruction thereon if the evidence so viewed could establish the elements of the theory presented. [Citation.]" [Citation.]'" (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1157.)
Even if the trial court had erred by giving this instruction, that hypothetical error would not warrant reversal of the judgment. "Alleged instructional error is reviewed under the prejudicial error standard. Under this standard, the judgment is affirmed unless the appellant can show an error that was so prejudicial a miscarriage of justice occurred." (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 306.) "Thus, when the jury receives an improper instruction in a civil case, prejudice will generally be found only `"[w]here is seems probable that the jury's verdict may have been based on the erroneous instruction."'" (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 574.) When determining whether an error of instruction or instructional omission was prejudicial, the court must evaluate the state of the evidence, the effect of other instructions, the effect of counsel's arguments, and any indications by the jury itself that it was misled. (Id. at pp. 580-581.)
Mary contends that by refusing to give her instruction, the jury was free to disregard uncontroverted expert testimony that it fell below the standard of care to fail to finalize the stipulation to the value of the residential real property. We conclude that even if Mary were entitled to the instruction requested, it is not probable the jury disregarded the evidence. Based on our review of the record, it is probable that the jury found the standard of care required K&A to perform additional work to attempt to finalize the stipulation. Therefore, no miscarriage of justice occurred.
"Ordinarily, where a professional person is accused of negligence in failing to adhere to accepted standards within his profession the accepted standards must be established only by qualified expert testimony [citations] unless the standard is a matter of common knowledge [citations]. However, when the matter in issue is within the knowledge of experts only and not within common knowledge, expert evidence is conclusive and cannot be disregarded. [Citations.]" (Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 313.)
"As the Supreme Court has stated, `[t]he reason for the exception [in malpractice cases] is obvious. Only physicians who practice their profession at a particular place could have any knowledge of the method of treatment customarily used by the other members of the profession practicing there; the subject, therefore, calls for expert opinion only. But the testimony of an expert in such a case is not conclusive in the sense that it must be accepted as true. Indeed, there is often considerable disagreement between different witnesses concerning the standard of care or skill ordinarily used and the trier of fact must resolve the conflict thus raised. It is conclusive, however, to the extent that it may not be contradicted by the testimony of a nonexpert witness.' [Citation.]" (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632.)
During closing argument, Mary's attorney emphasized that uncontroverted expert testimony established that K&A's failure to finalize the stipulation fell below the standard of care. Mary's attorney requested the jury award the following amounts as damages: 1) the amount that Mary had to pay as a result of K&A's failure to finalize the property value stipulation, which included $95,000 for the increased value of the property, approximately $20,000 for appraisals and attorney fees to prepare the stipulation, and Lipton's fees of $5,600, plus travel time, to oppose the motion to set aside the stipulation; 2) $200,000 that Mary paid because K&A failed to reserve jurisdiction to reallocate expenses for the disabled adult son's care, based on Mary's argument that $9,000 per month for two years should have been reallocated to Michael; and 3) $800,000 that she paid K&A for services that were unreasonable or unnecessary.
The only item of damages that falls within the amount of the jury award is the amount that Mary paid as a result of the failure to finalize the stipulation, which was a little more than $120,000 based on Mary's evidence and argument. The jury award was not based on the second category of damages, because had the jury credited Mary's evidence on this issue, the damages award would have been higher. It is also not likely that the jury awarded damages for the third category, because the amount that Mary requested for unreasonable and unnecessary attorney fees was far higher than the amount awarded by the jury and Mary did not provide any basis for the jury to calculate a lesser award. The amount of damages that Mary sought for K&A's failure to finalize the stipulation is essentially the amount awarded by the jury. Based on our review of the record, Mary has not shown the claimed instructional error resulted in a miscarriage of justice.
Mary contends the judgment must be reversed because the jury's verdicts are inconsistent. We disagree.
"General and special verdicts are deemed inconsistent when they are `beyond possibility of reconciliation under any possible application of the evidence and instructions.' [Citation.] `If any conclusions could be drawn thereunder which would explain the apparent conflict, the jury will be deemed to have drawn them.' [Citation.] Where the jury's findings are so inconsistent that they are incapable of being reconciled and it is impossible to tell how a material issue is determined, the decision is `against law' within the meaning of Code of Civil Procedure section 657. [Citation.] `"The inconsistent verdict rule is based upon the fundamental proposition that a factfinder may not make inconsistent determinations of fact based on the same evidence . . . ." [Citations.] An inconsistent verdict may arise from an inconsistency between or among answers within a special verdict [citation] or irreconcilable findings. [Citation.] Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law. [Citation.] The appellate court is not permitted to choose between inconsistent answers.' [Citation.]" (Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 716.)
It is possible to reconcile the verdict's findings under the evidence and the instructions in this case. The jury could find the work that K&A performed for Mary met the standard of care, but that K&A should have performed additional work in connection with the stipulation for the value of the home in order to meet the standard of care in connection with that issue. As a result, the jury awarded damages to Mary caused by K&A's failure to finalize the stipulation for valuation of the property, including $95,000 for the increase in the value of the home, $20,000 as reimbursement of attorney fees and appraisal costs associated with the stipulation, and $5,600 plus travel time for the costs of the motion to set aside the stipulation. Consistent with this verdict, the jury likely found that K&A did not breach the contract as to the other work that was performed for which K&A was entitled to payment. We conclude that the most probable basis for the jury's findings also reconciles the jury's findings. The verdict is not inconsistent.
In their appeal, K&A contends they are entitled to prejudgment interest under Civil Code section 3287, subdivision (a), because the amount of their damages could be made certain by calculation. We disagree.
Civil Code section 3287, subdivision (a), provides in pertinent part that "[e]very person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt."
A party is entitled to recover prejudgment interest on an amount awarded as damages from the date that the amount was both (1) due and owing and (2) certain or capable of being made certain by calculation. (Koyer v. Detroit F. & M. Ins. Co. (1937) 9 Cal.2d 336, 345; Gray v. Bekins (1921) 186 Cal. 389, 399.) The primary purpose of an award of prejudgment interest is to compensate the plaintiff for the loss of use of money during the period before the entry of judgment, in order to make the plaintiff whole. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 663; Lewis C. Nelson & Sons, Inc. v. Clovis Unified School Dist. (2001) 90 Cal.App.4th 64, 71-72.) "Under subdivision (a) the court has no discretion, but must award prejudgment interest upon request, from the first day there exists both a breach and a liquidated claim. [Citation.]" (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828.)
Damages are certain or capable of being made certain by calculation for purposes of prejudgment interest under Civil Code section 3287, subdivision (a), if the defendant actually knows the amount of damages owed or could compute the amount from information reasonably available to the defendant. (KGM Harvesting Co. v. Fresh Network (1995) 36 Cal.App.4th 376, 391.) However, prejudgment interest is not appropriate when the amount of damages must be judicially determined from conflicting evidence and is not ascertainable from the truthful information provided by the creditor to the debtor. (Lineman v. Schmid (1948) 32 Cal.2d 204, 212; Fireman's Fund Ins. Co. v. Allstate Ins. Co. (1991) 234 Cal.App.3d 1154, 1172-1173.) A legal dispute concerning the defendant's liability or uncertainty concerning the measure of damages does not render damages unascertainable. (Olson v. Cory (1983) 35 Cal.3d 390, 402; Shell Oil Co. v. National Union Fire Ins. Co. (1996) 44 Cal.App.4th 1633, 1651.) On appeal, we independently determine whether damages are ascertainable for purposes of the statute. (KGM Harvesting Co. v. Fresh Network, supra, at pp. 390-391.)
"[C]ourts have reasoned that `where an accounting is required in order to arrive at a sum justly due, interest is not allowed.' . . . Disallowing prejudgment interest in an accounting action is consistent with the principle . . . that no prejudgment interest is `allowable when damages cannot be computed except on conflicting evidence . . . .'" (Chesapeake Industries, Inc. v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 908.) "Although an accounting action is prima facie evidence a claim is uncertain, [courts have] not foreclose[d] the possibility of prejudgment interest in an accounting action where equity demands such an award." (Id. at p. 909.) "A partner may collect interest where partnership funds have been wrongfully withheld . . . ." (Luchs v. Ormsby (1959) 171 Cal.App.2d 377, 388.)
A large discrepancy between the amount demanded and the amount awarded indicates that damages were not ascertainable if the discrepancy results from the resolution of factual disputes arising from conflicting evidence or the lack of factual information needed to readily calculate damages. (Wisper Corp. v. California Commerce Bank (1996) 49 Cal.App.4th 948, 961-962; Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 435-436.)
In this case, the amount of K&A's damages required a judicial determination. Mary claimed the amount of fees that K&A sought was unreasonable. The evidence that Mary presented during trial caused K&A to recalculate its damages and reduce the amount that had been previously sought in its bills and in the cross-complaint. In addition, a portion of the damages awarded to Mary for professional negligence likely included fees that she had paid K&A for certain work, such as the fees that Mary paid for preparation of the property value stipulation. The recovery of attorney fees as damages for professional negligence effectively reduced the amount that Mary owed K&A for outstanding fees. Under the circumstances of this case, we conclude the trial court properly found K&A was not entitled to prejudgment interest under Civil Code section 3287, subdivision (a).
The judgments are affirmed. The parties are to bear their own costs on appeal.
We concur:
TURNER, P.J.
MOSK, J.
