Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County of Los Angeles, No. BC 286925, Robert L. Hess, Judge.
Bostwick & Jassy, Gary L. Bostwick and Jean-Paul Jassy; Westlake Law Group and Julian A. Simonis; and Benedon & Serlin and Gerald M. Serlin, for Plaintiff and Appellant.
Sedgwick, Detert, Moran & Arnold, Randall A. Miller, Lori S. Blitstien, Hall R. Marston and Matthew A. Reed for Defendants and Respondents.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
Stephen M. Gaggero brought a lawsuit in December 2002 against Knapp, Petersen & Clarke and three of its lawyers, Steven Ray Garcia, Stephen M. Harris, and Andre Jardini (collectively, the Knapp firm). The Knapp firm represented Gaggero from August 2000 until its withdrawal in January 2002, in connection with numerous lawsuits in which Gaggero was a plaintiff or defendant. Gaggero asserted claims against the Knapp firm for breach of contract, breach of fiduciary duty and professional negligence, among others, in connection with five matters handled by the firm. After Gaggero presented his evidence at a bench trial consuming almost three weeks in the summer of 2007, the trial court granted defense motions for judgment under Code of Civil Procedure section 631.8. Judgment was entered in February 2008, and the trial court later granted the Knapp firm attorney fees of over $1.2 million.
Gaggero appeals, asserting numerous errors by the trial court in (1) ruling that Gaggero failed to prove damages; (2) excluding evidence in connection with several defense motions in limine; and (3) sustaining objections to proffered evidence on the ground Gaggero had not produced it in discovery. He further asserts error in granting the Knapp firm’s motions for judgment, contending he sustained his burden of proving breaches of fiduciary duty, breach of contract and professional negligence, and he claims the fee award was improper. We find no merit in any of Gaggero’s contentions and affirm the judgment in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
We begin our recital of the facts in this case with a few observations from the trial court’s statement of decision, all of them fully supported by the record, and none of them alluded to in Gaggero’s recitation of the evidence. We then describe the various lawsuits the firm handled for Gaggero, the events and conduct forming the basis for Gaggero’s claims in this lawsuit, and the trial court’s rulings.
The Knapp firm filed a motion to dismiss Gaggero’s appeal on the ground that his failure to support claims in his opening brief with the necessary argument and citation to the record, including failure to set forth all the material evidence, constituted an abandonment of the claims, rendering the appeal subject to dismissal. While we do not condone a litigant’s failure to present a complete picture of the evidence on appeal, we deny the motion and decide the appeal, which asserts claims in addition to substantial evidence claims, on its merits.
1. The trial court’s credibility determinations.
The trial court made adverse credibility determinations with respect to all three of the witnesses in Gaggero’s case-in-chief: Gaggero himself; David Chatfield, a lawyer who appeared for Gaggero in various actions after the Knapp firm’s withdrawal; and Gaggero’s expert on legal ethics and malpractice issues, Attorney David Parker. As to Gaggero, who testified during all or part of 11 days, the court stated:
1 With respect to Gaggero’s demeanor, Gaggero displayed “two different personas, ” alternating between ignorance and sophistication. The court’s overall impression was that Gaggero “was a highly experienced litigant who micro-managed his attorneys and whose attention to minutiae was almost obsessive.” He was “often argumentative or evasive or deliberately obtuse in his answers.” His memory for events was “very selective, ” and he “was feigning ignorance at a number of points....”
2 As to the content and veracity of his testimony, “[t]he overall impression was of concealment rather than disclosure of the facts. [Fn. omitted.]” The court was “struck by the number of times during his cross-examination Mr. Gaggero would make categorical statements in response to questions, which would then be refuted by contemporaneous documents.” After describing one example, the court stated, “Mr. Gaggero’s unbelievable explanations of his ‘understanding’ or lack thereof in the face of this correspondence absolutely shattered what little credibility he had left.” Similarly, Gaggero “flat out lied in his responses to a whole series of questions” on another subject.
3 The court concluded that “when it ventures outside the subjects which are corroborated by contemporaneous writings, there is little [of Gaggero’s testimony] it can believe unreservedly.”
As to Chatfield, the court found him “extremely evasive, ” with a “remarkable lack of knowledge” of matters he should have known; Chatfield gave “confused and inconsistent testimony with respect to his handling of Mr. Gaggero’s matters, ” and his testimony concerning his interactions with the Knapp firm attorneys was “less than fully credible.”
As to expert Parker, the court found him “hostile and combative... to a degree which damaged his credibility.” In addition, the court found that Parker’s conduct in trying to secure a witness for Gaggero during the trial showed an abandonment of “the appearance of objectivity and neutrality for that of an advocate on behalf of Mr. Gaggero” and “compromised the integrity of Mr. Parker’s testimony in the Court’s eyes.”
Bearing in mind the trial court’s credibility determinations – with which we have no authority (or inclination) to disagree – we turn to the circumstances generating this lawsuit.
2. The underlying lawsuits.
Gaggero hired the Knapp firm to handle a number of matters, including matters relating to the five lawsuits that eventually generated this one. These were:
Gaggero v. Venice North Beach Coalition (VNBC).
This was a malicious prosecution suit against a group of homeowners who had unsuccessfully opposed one of Gaggero’s real estate development projects. The suit was dismissed as a result of an anti-SLAPP motion, and VNBC was awarded about $100,000 in attorney fees in 1995. The judgment was affirmed on appeal, was final and unpaid, and VNBC was attempting to collect the judgment (by then amounting to about $150,000) when Gaggero hired the Knapp firm in August 2000.
Gaggero v. Stacey (Stacey).
This was an action for legal malpractice against the lawyer who handled the VNBC suit, and who failed to advise Gaggero that the suit would be subject to an anti-SLAPP motion. When Gaggero hired the Knapp firm to handle the Stacey lawsuit, trial of the matter was only three weeks away. The firm obtained a $350,000 judgment for Gaggero.
First Federal Bank v. Blanchard (First Federal 1).
This was a deficiency judgment in the amount of $80,000 against Gaggero (formerly known as Blanchard); an appeal was pending when the Knapp firm was hired.
Gaggero v. First Federal Bank (First Federal 2).
This lawsuit resulted in a judgment in Gaggero’s favor on wrongful foreclosure claims. Gaggero was awarded $200,000 in damages and $750,000 in attorney fees. When the Knapp firm was hired, the bank’s appeal of the judgment was pending. After the judgment was affirmed on appeal (with interest, it then amounted to about $1.4 million), the proceeds became the subject of an interpleader action captioned First Federal Bank v. Gaggero (the interpleader action).
Slocumb v. Gaggero (Slocumb) was a suit for attorney fees (about $150,000) claimed by one of Gaggero’s former attorneys for her work in First Federal 2.
Several other lawsuits are noted in one way or another in this proceeding. Gaggero v. Fred Sands Realty had been resolved, and $350,000 was in the trust account of Peter Bezek, one of Gaggero’s former attorneys (who also had a fee dispute with Gaggero, filed as Foley, Bezek & Komoroske v. Gaggero). Gaggero v. Lurie & Zapeda was a postarbitration appeal of a $200,000 judgment for fees against Gaggero and in favor of other former attorneys, who were seeking to collect it from the amounts held in the Bezek trust account. Gaggero v. Yura (Yura), a suit alleging failure to close on a real estate sale, was in pretrial stages (and its handling by the Knapp firm was the subject of a separate lawsuit, as was a suit called Sulphur Mountain v. Bountiful).
One other pertinent note: In 1999, Gaggero sold 90 percent of his net recovery in various of his lawsuits (including First Federal 1, First Federal 2, and Stacey) to I.D.C. Development, Ltd. (IDC), a factoring entity located in the country of Cyprus, for $200,000. Consequently, IDC had a lien claim on the proceeds of those cases.
3. The initiation of the lawyer-client relationship.
Gaggero hired the Knapp firm after his former counsel (Peter Bezek) withdrew because of disputes over payment of his bills. Gaggero and the Knapp firm executed several legal services agreements, including one for the Stacey case (as of August 28, 2000), one for First Federal 2 (as of August 30, 2000), and one for Slocumb (as of November 16, 2000). The agreements were substantially identical and followed extensive negotiation of their terms, with Gaggero making detailed revisions to the drafts. Among other things, the agreements contained a number of billing restrictions. For example, conferences among staff attorneys were to be billed only by the senior attorney; no attorney unfamiliar with the matter could bill time without Gaggero’s consent; a single paralegal was to be assigned; the cost of a different attorney or paralegal learning the file if the assigned attorney left the firm’s employ could not be billed to Gaggero; there were to be no charges for routine correspondence; and so on. Permissible billings for costs were specified, and documentation was required for costs over $100. Monthly statements were to “clearly explain[] attorneys’ fees and costs incurred and their basis....” Payment was to be considered timely “if it is made within 30 days of the date the statement is sent to [Gaggero].” In addition, any dispute under the agreement was to be submitted to mediation, with expenses shared equally, and if not resolved through mediation, the parties would “negotiate in good faith as to whether to submit the dispute to arbitration.” The prevailing party in an arbitration or court action to enforce the terms of the agreement was entitled to reasonable fees and all costs.
Gaggero and IDC also executed liens dated September 17 and September 29, 2000, giving the Knapp firm a claim to the proceeds of First Federal 2 and to funds in Attorney Bezek’s trust account. The liens were given in consideration of the Knapp firm’s agreement to render legal services, and secured all legal fees in any matter in which the Knapp firm represented Gaggero, present or future; they were granted “to induce [the Knapp firm] to represent [Gaggero]... without a retainer deposit.” The liens also stated that the parties giving the security “specifically waive any claim of breach of fiduciary duty, duress, unclean hands, breach of ethics, or any other claim any of them may have against [the Knapp firm] based on the giving of this lien.” The liens covered the entire amount of the security until such time as the entire debt to the Knapp firm was paid in full and all services were completed. Citing rule 3-300 of the Rules of Professional Conduct, the Knapp firm advised Gaggero in a separate disclosure letter of various issues with respect to the liens, including the nature of their terms and the fact that the liens would place Gaggero in a potentially adverse position vis-à-vis the Knapp firm; Gaggero was advised to seek the advice of an independent lawyer before executing the liens, but he declined to do so.
Gaggero testified he did not execute these liens until sometime in December 2000.
4. Payment of fees.
Fee payment issues, the trial court observed, “began to trouble the [Knapp firm]/Gaggero relationship” in the late spring of 2001. From early on, Gaggero insisted on face-to-face conferences on every bill before paying any fees. As the trial court found, “Gaggero demanded to review the bills, then have a face-to-face meeting with the [Knapp firm] partner in charge, then have [the Knapp firm] completely retype the bills to his standard of perfection (as opposed to simply accepting a write-off), before he would process them for payment. [Fn. omitted.]” Gaggero “never simply paid the undisputed amount of any bill, ” but “structured his bill review process to insure that the (uncompensated) time for a [Knapp firm] partner to have a face-to-face, line-by-line review of every single bill would be so great that [the Knapp firm] would write off some earned amounts rather than invest the time to try to persuade Mr. Gaggero to pay the full amount owed.” While “probably every bill had some entries which did not comport in some respect with the peculiar limitations Mr. Gaggero insisted upon” in the legal services agreements, “the amounts involved were relatively minor.”
5. The end of the lawyer-client relationship.
As larger amounts became past due, the Knapp firm became increasingly reluctant to devote extensive amounts of time to uncompensated review and revisions of bills. On August 22, 2001, the firm told Gaggero that he should seek new legal representation, and on August 24, 2001, the firm demanded a substantial immediate payment on past due amounts; Jardini stated, “I believe you righteously owe $79,239.93, ” which “should be paid before your departure [for Italy] on 9/7.” Gaggero authorized a payment of that amount toward the outstanding bills on August 28, 2001. Gaggero began to use other lawyers to perform services on some matters, and on October 17, 2001, Jardini suggested that Gaggero retain one or both of those lawyers to conclude his cases as he (Jardini) was “not interested in continuing this relationship as it currently exists.” Jardini’s e-mail to Gaggero said that the “threats of a claim of malpractice are now overt, ” and “I won’t work under those conditions.” He said that all necessary events, appearances and filings would be handled until the substitutions were complete, and that he expected the period of transition would not be prolonged. At the time, $59,472.38 was due the Knapp firm; Jardini’s e-mail to Gaggero said, “I assume you will concoct some kind of malpractice claim to avoid it [paying the amount due].” But obtaining other counsel took some time, and the Knapp firm continued to represent Gaggero until mid-January 2002.
An August 22, 2001 e-mail from Jardini to Gaggero indicated Gaggero had paid $20,000 of a $33,000 bill, “on top of the equally huge and unwarranted discount you took for yourself on the last set of bills.” “I have been asked to get you current, and get a $50,000 retainer against future billings, or end the relationship. I think it is probably best that I stop the fight and acknowledge that this is a broken play. $95,292.92 remains due....”
In late December 2001, Gaggero hired Chatfield, and later Gaggero’s former attorney, Bezek, re-entered the fray, both representing Gaggero in the interpleader action after the Knapp firm’s withdrawal on January 16, 2002. Before the end of January, the Knapp firm had substituted out of all of Gaggero’s matters.
6. An overview of the claims in this case.
The principal claims in this case arise from the interrelated circumstances of (1) the efforts by the VNBC judgment creditors to collect from Gaggero on their judgment, (2) the Stacey case (in which Stacey was found liable for the malpractice causing the VNBC judgment), and (3) the existence of the $1.4 judgment Gaggero had obtained in the First Federal 2 case. In a nutshell, Gaggero did not want to pay the VNBC judgment creditors, taking the view that it should be paid by Stacey. But the Stacey judgment was on appeal, and Stacey’s insurers would not pay. Meanwhile, the VNBC judgment creditors began making further efforts to collect from Gaggero, incurring additional attorney fees and costs as Gaggero continued to resist payment. And, in February 2001, the Supreme Court decided Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141, in which the court made clear that an award of fees for a successful anti-SLAPP motion (as in the VNBC case) may include not only the fees incurred with respect to the underlying claim, “but also the fees incurred in enforcing the right to mandatory fees under” the anti-SLAPP statute. In July 2001, the VNBC judgment creditors moved to obtain those additional fees, and in October 2001, the court awarded the VNBC judgment creditors additional fees and costs of over $81,000.
In November 2000, the VNBC judgment creditors filed notices of lien against Gaggero’s anticipated recoveries in Stacey and First Federal 2.
Meanwhile, Gaggero’s $1.4 million judgment in First Federal 2 became final on August 13, 2001, and on August 28, 2001, First Federal Bank, aware that the VNBC judgment creditors and Gaggero’s former attorney, Laura Slocumb, were asserting claims to those funds, filed an interpleader action and deposited $1.2 million of the judgment with the clerk of the court. The Knapp firm filed Gaggero’s verified answer in the interpleader action on October 19, 2001, and also filed a cross-complaint on behalf of Gaggero, IDC and itself, seeking a declaration that the Knapp firm’s interest in the funds (by virtue of its lien) had priority over all others, and that IDC’s interest had priority over all others except the Knapp firm’s interest. After its representation of Gaggero ended, the Knapp firm continued to assert its lien interests on its own behalf in the interpleader action. Eventually, in January 2003, the Knapp firm and Gaggero agreed that the Knapp firm would be paid the full amount of its fee claim ($125,883.71) from the interpleaded funds, and the remaining funds were released to Gaggero (other claims having earlier been resolved), but all parties reserved their rights against each other.
In this lawsuit, Gaggero asserts that the Knapp firm’s work, principally in the Stacey and VNBC collection matters (and in allowing the interpleader action to be filed), fell below the standard of care; that he was over-billed in breach of the legal services agreements; and that the Knapp firm breached its fiduciary duties in connection with the liens he executed and in taking positions adverse to his interests after disputes arose between them. Described broadly, Gaggero claims:
1 The Knapp firm was negligent in the Stacey lawsuit, in that the firm should have known that, after the Stacey judgment, VNBC would continue its collection efforts and would continue to accrue attorney fees for those efforts. Gaggero claimed the Knapp firm should have taken steps during the Stacey lawsuit to provide for the future damages Gaggero would incur after the Stacey judgment (as a result of continuing to resist collection of the VNBC judgment). (Evidence of these damages was excluded by the court’s ruling, discussed post, on a motion in limine.)
On March 30, 2001, the Knapp firm advised Gaggero he was probably not entitled to recover postjudgment damages in the Stacey case, since such evidence should have been put on at the Stacey trial (and at that trial, future harm was speculative, and would have required Gaggero’s former attorney to have designated an expert witness).
2 The Knapp firm did not advise Gaggero, before he signed the liens in favor of the firm, that the firm “could use the liens against him if the relationship between him and [the Knapp firm] broke down....” This was a conflict of interest as a consequence of which all the fees paid to the Knapp firm should be returned to Gaggero.
3 The Knapp firm’s conduct and advice in connection with the VNBC judgment creditors (failing to achieve settlement as directed by Gaggero and instead merely “urg[ing] Gaggero to pay the full amount owed before the fee hearing [on the additional attorney fees]”) caused Gaggero to fail to settle with the VNBC creditors “at an opportune moment, ” so that he ultimately paid them “tens of thousands of dollars” more than he otherwise would have done.
4 The Knapp firm should have prevented First Federal from filing the interpleader action (of which Gaggero claimed to have no understanding), by negotiating an agreement with First Federal under which First Federal would agree to continuing accrual of postjudgment interest in return for a stay of enforcement. (First Federal had suggested such an approach, but the length of the stay of enforcement it proposed was not agreeable to Gaggero.)
5 The Knapp firm threatened to abandon Gaggero if he did not pay disputed fees, as a result of which Gaggero paid over $79,000 under protest.
6 The Knapp firm breached the legal services agreements by billing for tasks not permitted, refusing to meet with Gaggero to clarify bills, failing to inform Gaggero of developments, not submitting billing disputes to mediation, and so on.
7 After its representation ended, the Knapp firm improperly used its lien to take an aggressive position adverse to its former client, causing Gaggero continued expenditure of time and fees in the interpleader action.
7. The trial court’s decision.
After hearing weeks of testimony from Gaggero, Chatfield, and Parker, none of whom were generally credible witnesses, and receiving voluminous exhibits in evidence, the trial court granted the Knapp firm’s motions for judgment and issued a statement of decision. We note here several relevant findings (and will elaborate further on the court’s rulings and the evidence as necessary in connection with Gaggero’s arguments on appeal):
1. Observing that Gaggero was constantly preoccupied with “improving the deal, ” the court found that, once an agreement was reached or an obligation was established, “Gaggero’s practice was not to perform under its terms.” A “salient example” was Gaggero’s “adamant refusal to pay the judgment for attorneys fees owed in the [VNBC] case.” Thus, the court found:
“The evidence clearly and unequivocally supports the conclusion that although there was no legal justification whatsoever for refusing to pay the judgment in full, Mr. Gaggero never had any intention to pay off that obligation 100 cents on the dollar. Rather, his absolutely single-minded focus was on delay as a tactic to force the [VNBC] judgment creditors to accept a deeply discounted payoff. Every strategy devised or advocated by Mr. Gaggero with respect to the [VNBC] judgment creditors was designed to make it so difficult and so expensive to continue the fight that they would capitulate. The strategy ultimately failed because VNBC’s counsel had the right to – and did – increase the amount owed by the attorneys fees spent pursuing collection, and because the VNBC claim had to be disposed of before Mr. Gaggero could reach the interpleaded First Federal 2judgment proceeds. Mr. Gaggero’s refusal to pay the [VNBC] judgment creditors was the direct cause of the interpleader being filed. [Fns. Omitted.]”
The documentary evidence with respect to the VNBC collection efforts included the following:
2. One of the tactics Gaggero employed with the VNBC judgment creditors was to assert that he had no assets and was judgment-proof. The trial court described Gaggero’s testimony on cross-examination on the subject in this way:
“Between 1995 and 1998[, Gaggero] did extensive ‘estate planning, ’ which supposedly resulted in all of his personal assets being transferred to various corporations, trusts and foundations. Supposedly, he retained absolutely no ownership interest in and no control over these assets. Indeed, he testified that he did not even have a checking account. When asked how he paid any bills, Mr. Gaggero said in substance that he submitted them to the trustee of his trust, who had absolute discretion to pay or not to pay them. If he wanted cash, it was available at the trustee’s sole discretion – on sufferance, as it were. [¶] If this sounds unusual or unbelievable, the record is clear that Mr. Gaggero repeatedly used precisely these assertions and arguments to discourage creditors who were seeking to collect moneys he owed them. The stonewall, the liens, and the claim of no personal assets that could be liened or attached, were all integral parts of the effort to discourage or defeat creditors.”
The record fully supports the trial court’s conclusion. For example:
3. The court found Gaggero had a “three-pronged strategy to avoid paying VNBC: (1) the ‘estate planning’ which supposedly had left no assets in Mr. Gaggero’s name; (2) the refusal to pay and the threat of bankruptcy discharge as part of the attempt to make it so difficult to collect that VNBC would accept a deep discount to collect something; and (3) the ‘lien strategy’ to use claims by IDC and [the Knapp firm] to the judgments in Mr. Gaggero’s favor to push VNBC down the collection ladder.”
4. As to the Knapp firm’s liens, the court found that “[t]he totality of the circumstances persuades the Court that there was no overreaching and no material misstatements or non-disclosures by [the Knapp firm] in obtaining the liens.” Moreover, “Gaggero was actually aware of the purposes and uses of liens, and knew that they could be asserted against him by the holders, including [the Knapp firm].”
5. The court found that Gaggero was advised by the Knapp firm of the potential for and the nature of an interpleader action in March 2001 (months before it was filed). He understood that his access to the First Federal 2 judgment proceeds could be delayed, if the funds were interpleaded, until he resolved the VNBC claim, but he also understood in March 2001 that if the funds were interpleaded, “[the Knapp firm] could claim that the [Knapp firm] and IDC liens were superior to those of other claimants – a highly desirable state of affairs from Mr. Gaggero’s perspective.” The court stated that, when Gaggero read and verified his interpleader answer and reviewed the cross-complaint, asserting that the Knapp firm’s lien rights were superior to all others, including his, “[t]he Court has no doubt that, at the time, it was part of Mr. Gaggero’s strategy that [the Knapp firm]’s and IDC’s lien right be part of the interpleader, and that they be asserted to be superior to those of VNBC and Ms. Slocumb.”
Thus Gaggero’s voicemail message in May 2001 about prospective buyers of the VNBC judgment “knowing that it’s going to be... a legal battle against those other creditors – your firm included and other lawyers..., ” and his e-mail in June referring to the possibility of “a competing creditor dispute w/ IDC and [the Knapp firm]....” Other documentary evidence relating to the interpleader action included the following:
6. There was no credible evidence that Gaggero personally suffered any damages, because he personally did not pay “a single dime in attorneys fees to anyone who represented him.” All attorney fees were paid by or through other business entities (Pacific Coast Management and Avalon Corp. or Avalon Sunset) directly to the attorney, and there was no evidence of any obligation to repay those entities. And even if there were an argument for personal loss, Gaggero “failed to carry his burden to provide credible evidence to quantify and substantiate the amount of those losses.”
Judgment was entered on February 5, 2008, and the Knapp firm then filed a memorandum of costs and a motion for attorney fees, the latter seeking $1,202,994.50. The court awarded the full amount of attorney fees sought, and an amended judgment was entered on May 19, 2008. Gaggero’s timely appeals from both judgments were consolidated.
DISCUSSION
We address and reject in turn Gaggero’s claims of error in the trial court’s rulings.
A. The trial court did not err in finding Gaggero failed to prove he suffered any damages as a result of the Knapp firm’s conduct.
Gaggero’s case foundered most plainly on his failure to prove damages: as the trial court observed at the hearing on the defense motions for judgment, it saw “problems with the damages in every aspect of this case.” Gaggero’s claimed damages fell into several categories, including (1) $498,000 in attorney fees and costs paid to other lawyers in the interpleader action after the Knapp firm was replaced; and (2) two groups of fees paid to the Knapp firm for which the amounts were disputed – one totaling about $80,000 (said to have been paid “under duress” in August 2001), and the other $125,000 (paid to the Knapp firm from interpleaded funds).
Gaggero also sought $71,000 in attorney fees awarded to First Federal from the interpleaded funds, $146,000 in interest he claimed was lost on the funds interpleaded, and punitive damages. As to the first item, the trial court found that the actions taken by the Knapp firm in the interpleader during its representation of Gaggero were authorized by him and no liability for First Federal’s fees could attach to the Knapp firm; Gaggero’s subsequent attorneys did not take steps to remove First Federal from the action and limit Gaggero’s exposure to its fees; and no information was submitted to show how much, if any, of First Federal’s fees could be attributed to acts or omissions of the Knapp firm. As to the second item (interest on the interpleaded funds), the court was given no basis for any calculation of damages. Finally, the court concluded Gaggero “had not come near making a prima facie case of oppression, malice or fraud, ” primarily but not exclusively because of Gaggero’s lack of credibility. None of these findings is challenged in Gaggero’s appeal (except for a single statement that the $71,000 in First Federal attorney fees “could have been avoided by a simple stipulated dismissal, ” unsupported by any pertinent evidentiary citations).
The trial court ruled that (1) there was no credible evidence that Gaggero personally suffered any damages (or that he had the authority to represent any other person or entity in asserting damage claims in this lawsuit), and (2) even if a theoretical argument for personal loss to Gaggero existed, Gaggero “failed to carry his burden to provide credible evidence to quantify and substantiate the amount of those losses.” Even if there were any doubt as to the first ruling, there is none as to the second.
1. Fees paid to Gaggero’s post-Knapp firm lawyers
The court found three flaws in Gaggero’s claim for mitigation damages of $498,000 paid to his lawyers for their work in the interpleader action, each of which supports the trial court’s conclusion.
First, the court found that “Gaggero did not personally pay a single dime in attorneys fees to anyone who represented him.” Instead, all attorney fees were paid by one or more business entities directly to the attorneys (and no evidence was presented that Gaggero was an officer, director or employee of any of the entities, or that he had any obligation to repay them for the sums they paid): “As far as the evidence goes, the entities paid whatever sums were expended entirely gratuitously.” Gaggero himself testified he had no assets and did not even have a checking account; as the court summarized it, “When he wants money, he asks the trustee of a trust, who may or may not give him some or pay a bill in the trustee’s sole and unfettered discretion.” Gaggero made these arrangements “hoping to demonstrate that he has no control over any funds, in an attempt to put his assets outside the reach of creditors, ” and took this position throughout the underlying litigation as well as at the trial of this case.
In a voicemail message on May 23, 2001, to the Knapp firm, Gaggero referred to the “probability of non-recovery from me in that I am without assets.... [A]nybody who purchased [the VNBC judgment] would be taking it knowing that... I am without assets.... [T]here’s a zero probability of recovery from me.” At trial Gaggero testified he was seriously considering filing for personal bankruptcy in June 2001.
Gaggero disputes the trial court’s ruling, contending that he was improperly precluded from establishing that the funds used to pay attorney fees were his own. Specifically, he was precluded from answering the questions, “Why was it that Pacific Coast Management paid those [attorney fees to the Knapp firm]?” and “When Pacific Coast Management paid or wrote checks for fees and costs to [the Knapp firm], whose money was it?” Defense counsel objected on the ground that at his deposition, Gaggero refused to answer questions about Pacific Coast Management – such as “Why would Pacific Coast Management have paid on your behalf?” – on the ground the information was confidential. The trial court sustained the objection, observing that Gaggero could not refuse to answer at deposition based on a privacy objection and then “selectively waive the privacy objections later on when it appears to your advantage.”
Gaggero contends (without acknowledging the standard) that the trial court’s ruling was an abuse of discretion, and that the trial court could not exclude the testimony unless the Knapp firm had obtained a court order compelling Gaggero to answer at his deposition and Gaggero then refused to do so. The law is not so rigid. (See Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 [“under the circumstances here the court properly imposed the evidence sanction without a prior order to compel defendants’ compliance with discovery”].) Moreover, as the Knapp firm points out, the issue is more properly characterized as whether a party may assert a privilege to block discovery and then waive that privilege and testify at trial. The answer is that he may not. (A & M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 566 [discovery statute was intended to take the “‘game element’” out of trial preparation and do away with surprise at trial; to accomplish that purpose, court was compelled to prevent a litigant claiming privilege against self-incrimination in discovery and then waiving the privilege at trial; “[a] litigant cannot be permitted to blow hot and cold in this manner”].) In short, there was nothing “arbitrary, capricious, or whimsical” about the trial court’s ruling (Vallbona, at p. 1545), and consequently no error in it.
Second, the court also found the $498,000 claimed for the attorney fees of its “in-house” counsel “bear no relationship to any actual expenditure.” This was because Gaggero claimed reimbursement based on invoices created by the lawyers, but not actually paid to them, at the rate of $300 per hour as (in effect) the reasonable value of services by “in-house counsel.” (Lawyer Chatfield described himself as “in-house” counsel for various entities (Pacific Coast Management and Avalon Sunset); was paid a salary by those entities and worked on matters for them; and also spent part of his time on personal matters for Gaggero.) There was no evidence any of the lawyers ever had a retainer agreement with Gaggero personally, and Gaggero failed to explain how an attorney “could be ‘in-house’ counsel to an individual who was a party in litigation entirely in a personal capacity, for the purpose of recovering fees different than those actually paid.” In short, there was no evidence of Gaggero’s (or the entities’) actual out-of-pocket costs for the fees claimed. As the court observed, “[T]here was in essence a complete failure to present evidence of actual attorneys fees expenditures by the entities, or any basis for apportionment of fees paid between work for the entities and work done personally for Mr. Gaggero, ” so there was no basis for an alternative calculation.
Gaggero’s counsel expressly elected not to put on any evidence of his actual costs, referring to the “virtual impossibility of being able to allocate [Gaggero’s attorneys’] time and effort over the course of the many different matters that they handled during that period of time, and the invasions of privacy with respect to the personal compensation of the people involved....”
Gaggero claims the trial court erred in concluding that his evidence of damages – the reasonable value of services provided by his attorneys calculated at $300 per hour – did not constitute evidence of actual expenditures for attorney fees. Gaggero relies on PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1088, 1094, where the court held that an entity represented by in-house counsel may recover attorney fees under Civil Code section 1717, and that the trial court has discretion under that section to fix an award in a reasonable amount based on the market value of the services (rather than the actual cost of the representation). But PLCM is entirely inapposite; it involved the trial court’s discretion to determine the reasonable amount of an attorney fee award under Civil Code section 1717, and has nothing to do with proving the amount of damages (in the form of attorney fees) that have been caused by a defendant’s malpractice or breach of fiduciary duty. Again, there was no error in the trial court’s conclusion that there was “a complete failure” to present evidence of actual attorney fee expenditures.
Third, the court concluded that Gaggero’s claim for this component of damages was “squarely foreclosed” by Schneider v. Friedman, Collard, Poswall & Virga (1991) 232 Cal.App.3d 1276, 1281 [client cannot recover in a separate lawsuit attorney fees and costs from a former lawyer which the client has incurred defending against that lawyer’s attempt to collect or retain an unreasonable fee, in breach of the lawyer’s fiduciary duty]. Gaggero contends the trial court’s reliance on Schneider was “clearly erroneous and an abuse of discretion.” But Schneider is good law, Gaggero cites no authority contradicting it (and we know of none), and Gaggero offers no principled distinction between Schneider and this case.
In sum, as the trial court concluded, there was no factual or legal basis for this component of Gaggero’s claimed damages.
2. Damages for disputed fees paid to the Knapp firm.
At trial, Gaggero sought damages for disputed fees paid to the Knapp firm. These disputed fees consisted of two components: the $80,000 (rounded) in fees paid in August 2001, after Jardini insisted on a substantial payment and indicated Gaggero should obtain new counsel; and the $125,000 in fees paid from the interpleaded funds. Gaggero disputed various entries on these bills, some of them on grounds they were contrary to the terms of the legal services agreement. The trial court found, as to the $80,000 payment, that “the evidence of any improper charges was so fragmentary and incomplete as to be essentially worthless”; Gaggero’s objections that the work was not beneficial or was unnecessary or unsuccessful had no support in the legal services agreements; and “[f]undamentally, Mr. Gaggero did not present a clear statement from which a damage calculation could be made.” As to the second component (the $125,000 paid out of interpleaded funds), Chatfield testified, offering an exhibit (which the trial court excluded because it was not produced in discovery and which Gaggero has not provided in the appellate record) showing his notations of entries on the Knapp firm bills which he thought were wrong. His oral testimony included no analysis of any of the actual entries on the bills, and the court found that Chatfield’s presentation was “half-baked, ” “insufficient and fundamentally unpersuasive....”
Gaggero challenges the court’s conclusions, pointing to two footnotes in the trial court’s statement of decision, where the court observed that:
1 “While probably every bill had some entries which did not comport in some respect with the peculiar limitations Mr. Gaggero insisted upon in the [legal services agreements], the amounts involved were relatively minor.”
2 “As discussed above, some of the billing entries – while (in the Court’s experience) common on attorneys’ bills – were not appropriate under the limitations on billing in the [legal services agreements]. Nevertheless, the Court is persuaded by the totality of the testimony that these were small in dollar terms.”
From these observations, Gaggero contends the trial court found that the Knapp firm breached the legal services agreements and, therefore, abused its discretion in failing to award damages for those breaches. We cannot agree.
The observations by the trial court, which were made in connection with the court’s description of Gaggero’s “cumbersome and protracted” process of “microscopic, line-by-line review of the bills, ” do not constitute a “finding... that [the Knapp firm] breached the contracts with [Gaggero], ” as Gaggero asserts. On the contrary:
1 The trial court goes on to say that Gaggero’s review process “was both intended and actually used by Mr. Gaggero to try to get [the Knapp firm] to make further reductions in the bills beyond those called for by compliance with the [legal services agreements]. The Court is fully persuaded that Mr. Gaggero attempted with virtually every bill from [the Knapp firm] to ‘improve the deal, ’ by trying to get [the Knapp firm] to write off legitimately earned time charges through a process of attrition....”
2 The court found that Gaggero “never simply paid the undisputed amount of any bill, ” and that “there were sometimes delays of months even for non-disputed items, ” despite the requirement in the legal services agreements that payment was to be made within 30 days of the invoice.
3 The trial court expressly found that “the evidence of any improper charges was so fragmentary and incomplete as to be essentially worthless. Mr. Gaggero gave certain vague testimony with respect to a few entries, some of which was supported by the terms of the [legal services agreement] but much of which was not, ” and “it was not even clear whether those few entries Mr. Gaggero mentioned were or were not part of the payment authorized at the end of August 2001.”
4 At the hearing on the Knapp firm’s motion for judgment on Gaggero’s breach of contract claim, the court observed that “[d]amages have to be proven in a fashion that is reasonably certain. And maybe, maybe you are at $1,120 [in disputed items], out of the $80,000, but that is nowhere near a jurisdictional limit on this case....”
Of the $80,000 payment in August 2001, only $1,151.26 involved bills at issue in this case. When the court asked “How much of that was improper, ” Gaggero’s counsel replied, “[Gaggero] has little or nothing to say that would illuminate anything with respect to that $1151.26. I won’t waste your time.”
5 And finally, the court expressly stated that “the evidence of damages on the contract claim is not sufficient to either demonstrate causation or, and perhaps more significantly, to allow anything in the way of a quantification of the damages that is not pure speculation.” And, “The fact that Mr. Gaggero may have had questions about entries does not constitute evidence of any substance that any of the charges were improper, and so there is, in my view, a complete failure of both causation and damages elements of this particular claim.”
In short, contrary to Gaggero’s claim, the trial court did not find a breach of contract, nor is there any basis for claiming it should have done so.
B. The trial court did not abuse its discretion in its rulings on motions in limine.
Gaggero contends the trial court erred in granting several motions in limine that excluded certain damages evidence and other evidence. We find no abuse of discretion in the trial court’s rulings. (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476 [“‘a trial court’s decision to admit or not admit evidence, whether made in limine or following a hearing pursuant to Evidence Code section 402, is reviewed only for abuse of discretion’”].)
Gaggero contends the motions in limine were “disguised motions for summary adjudication” and it is reversible error to grant a motion in limine barring “all evidence on a topic, ” citing a concurring opinion in R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 372 [“[a]n in limine motion that seeks to exclude all evidence pertaining to part or all of a cause of action based on an argument that plaintiff lacks evidence to support part or all of the cause of action is but a disguised motion for summary adjudication”], and Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677 [grant of a motion to exclude all evidence produced during discovery is the functional equivalent of a nonsuit]. We cannot see how any of the challenged rulings in this case fall within the purview of these principles.
1. The exclusion of evidence of damages in the form of VNBC’s postjudgment collection costs paid by Gaggero allegedly as a result of malpractice by the Knapp firm.
The Knapp firm filed a motion in limine to exclude testimony or evidence of “the additional enforcement-of-judgment attorney’s fees that [Gaggero] was ordered to pay in... [VNBC]... and statements bearing on that topic.” This refers to the additional fees the VNBC creditors incurred in their efforts to collect their judgments from Gaggero after Gaggero obtained his favorable judgment in the Stacey case on November 9, 2000. (After the Stacey judgment, Gaggero continued to refuse to pay the VNBC creditors, and VNBC initiated collection efforts on March 8, 2001, by filing a lien against Gaggero in the Stacey action.) The Knapp firm argued that Gaggero’s theory – that the Knapp firm should have anticipated that Gaggero would refuse to pay the VNBC judgment (thus precipitating further collection efforts and costs by VNBC), and should have sought those additional costs as future damages in the Stacey action (“or otherwise cause the trial court to retain jurisdiction to ascertain continuing damages in the future”) – was not supported by California law, as (among other reasons) any such future damages were speculative and remote.
The trial court granted the motion in limine, observing that Gaggero’s theory – “that [the Knapp firm] should bear the expense of Mr. Gaggero’s decision not to pay that judgment in a timely fashion, but to force VNBC to incur additional fees post judgment in collection” – was “a non-starter, ” and evidence of “post[-Stacey] expenses incurred by VNBC to collect on its judgment are out.” When Gaggero argued that the Knapp firm “did not make any effort... to seek... some remedy for any potential future fees that might... accrue because of VNBC’s collection efforts after the [Stacey] verdict, ” the trial court asked Gaggero for the “legal authority for the proposition that you can get such a judgment, ” and Gaggero’s counsel responded, “I cannot tell you that we have a case that says that that would be possible.” When pressed for his legal theory and support, counsel said, “They could have provided expert evidence as to what collection efforts might be caused by VNBC if it was not paid over the course of time, ” and the trial court said, “unless you have got some really profound legal authority I wouldn’t let that testimony in. That is pure speculation.”
The court observed that the Stacey suit was legal malpractice, and “you are telling me that they [the Knapp firm] should have anticipated that Mr. Gaggero would resist the collection efforts of the sums owed in [VNBC] and that the postjudgment collection fees would be tacked on, and somehow Stacey should have been liable for those postjudgment collection fees. [¶] None of that has any relation, as far as I can see, to the alleged malpractice of Stacey.”
Gaggero contends the trial court erred in concluding, in effect, that it would not have been possible in the Stacey malpracticeaction either to obtain an award of future damages from the jury or to obtain a reservation of jurisdiction by the trial court for an award of future damages. Gaggero now cites United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 599 (Haidinger-Hayes), where the Supreme Court held that the trial court did not err in reserving jurisdiction to amend its judgment to include further damages. Haidinger-Hayes involved an insurer’s negligence action against its agent for failing to investigate an insured’s loss history and issuing a policy with a low premium rate that resulted in an exorbitant loss ratio. (Id. at pp. 590, 591.) Damages were found in a specified amount as of the date of conclusion of trial, plus an undetermined amount on open unsettled claims, and the trial court reserved continuing jurisdiction “to amend the judgment to insert the amount of the additional sums which [the insurer] became legally obligated to pay on these open claims, when the amounts were determined, as damages against” the agent. (Id. at p. 591.) The court of appeal found no error in the reservation of jurisdiction, because “[t]he claimants were known, the claims were in the process of settlement, and [the insurer’s] liability therefor had been adjudicated” in a previous action against the insured. (Id. at p. 599.) The court observed that section 3283 of the Civil Code provides for an award of damages for detriment “certain to result in the future.” While the trial court could have required the insurer to file another lawsuit to recover the further sums, or could have estimated the ultimate amount of further damages, “[r]eservation of jurisdiction over a cause or parties after a final judgment is exceptional but may be exercised in special situations.” (Haidinger-Hayes, at p. 599.)
Haidinger-Hayes does not assist Gaggero. In the first place, its approval of a reservation of jurisdiction was premised on detriment to the insurer “certain to result in the future” (Civ. Code, § 3283) as a proximate result of the defendant agent’s negligence. This essential predicate is entirely absent in the Stacey malpractice case. Perhaps more importantly, the trial court asked Gaggero, repeatedly, for any legal authority that might support his claim, and counsel offered none. Under these circumstances, the trial court can scarcely be said to have abused its discretion in excluding evidence of “post[-]Stacey expenses incurred by VNBC to collect on its judgment....”
2. The exclusion of evidence of damages characterized as “disgorgement.”
In his second amended complaint, Gaggero sought compensatory damages on all of his causes of action and, as to his cause of action for breach of fiduciary duty, sought “disgorgement of all fees paid to [the Knapp firm]... or, in the alternative, exemplary and punitive damages....” The Knapp firm moved to strike the allegations and prayer relating to disgorgement and punitive damages. On October 16, 2003, the trial court granted the motion to strike as to disgorgement (but not as to punitive damages).
Prior to trial, the Knapp firm filed a motion in limine to exclude testimony or evidence of “fees subject to this Court’s ruling on the stricken disgorgement claim.” The Knapp firm described these as “attorney fees [Gaggero] previously paid to [the Knapp firm] including for handling the [Stacey], [VNBC], [Slocumb] and [First Federal 1 and 2] appeal matters, in the amount of at least $114,086.41....” Gaggero opposed the motion, contending that all amounts paid to the Knapp firm after the liens were executed in September or December 2000, amounting to “over $200,000... were legally unearned, ” because of an “unresolved conflict of interest” between Gaggero and the Knapp firm, and these were claims for “reimbursement of legal fees paid that were unearned” and were not “disgorgement.” At the hearing on the motion in limine, Gaggero explained that “the fees were not owed in the two major instances where there was a payment of $80,000 by Mr. Gaggero, and then the payment of 125 [thousand dollars] out of the interpleader.” After a further exchange, the court ruled:
“... I see a distinction between proving particularized damages arising from acts of malpractice or breach of fiduciary duty and basically wholesale disgorgement, and frankly, I am not sure what they are asking for here. [¶] And it seems to me I understand your argument, this is not a disgorgement case, and I have ruled on that, so what it is going to turn on is whether and to what extent they can prove any of these things as damages for particular breach or particular or for particular act or omission. Okay. So that is the way I am going to approach this.”
Defense counsel then explained that these two amounts of money were “the only two amounts of money that have been articulated in this case as money that [Gaggero] wanted to get back, ” and “these two amounts of money are amalgam of a bunch of different cases, five or six[, ] sometimes seven or eight different cases... that were due and owing for a number of different cases that [the Knapp firm] was working” and that Gaggero’s claim was that “we want it all back.” The court responded that it understood and “this illustrates why I can’t do it now. The source of these things, if we are talking about 125 and 80 what the 125 is for is not elucidated in your papers, and... it may well be I want to hear more. [¶]... Let me hear it. I think that I am going to be able to sort this out....”
Gaggero now argues that this ruling was reversible error. He asserts that the damages he sought at trial were not “disgorgement” damages but constituted normal compensatory damages for legal fees paid but unearned, and asserts that the court “barred all evidence of any monies paid to [the Knapp firm] for legal services as being ‘disgorgement.’” But the court plainly did nothing of the sort, instead specifically allowing Gaggero to put on evidence of damages from particular breaches, acts, or omissions, merely precluding a “generalized claim of inadequate disclosure of an asserted conflict as voiding all attorney’s fees after that time, regardless of case or relationship to the non-disclosure....” Gaggero offers no authority for concluding the court’s ruling was erroneous, and we know of none.
During the motions for partial judgment at the end of Gaggero’s case-in-chief, the Knapp firm again argued that Gaggero should be prohibited from claiming any “all or nothing” return of fees (the entirety of the $80,000 and $125,000 payments) because that is “classic disgorgement” and “runs afoul of the court’s prior ruling.” The court repeated that “the general rules of contract damages or tort damages apply here, but the generalized claim of inadequate disclosure of an asserted conflict as voiding all attorney’s fees after that time, regardless of case or relationship to the non-disclosure, is rejected. As an equitable argument, it lacks equity.”
3. The exclusion of evidence of allegedly improper fees billed in the Yura matter.
There is a separate lawsuit between Gaggero and the Knapp firm concerning the firm’s actions in a lawsuit (Yura) that is not at issue in this litigation. Early on, the defense moved in limine to exclude evidence of unrelated litigation (including Yura), and in the argument on that motion, the trial court specifically asked Gaggero’s counsel whether he was going to contest any charges incurred or billed in the Yura case. Counsel said he was not contesting “any of that.” Counsel did not then claim that fees billed in Yura were properly attributable to matters at issue in this case, and the trial court ruled that the Yura matter was off-limits in this trial, stating, “We are not having any contest as to whether any of the charges in Yura were... appropriate or inappropriate.” Then, a week later during Gaggero’s trial testimony, his counsel asserted that some of the fees charged in the Yura matter were at issue in this case because they were actually improper charges for work performed on the VNBC matter (for the Knapp firm’s allegedly negligent handling of the VNBC collection matter) but billed in the Yura matter. Defense counsel objected, and the court observed:
“Why didn’t you tell me that the other day if this is what it is, because I heard some pretty categorical statements the other day when we were doing the motions in limine, and if... you believe things for other cases were improperly charged to Yura, then I would have expected somebody to have articulated that in the motion in limine, because I heard some pretty categorical statements about not contesting sums charged in Yura, and... when I hear not testing the charges in Yura, I think that that sounds like anything billed under the Yura number.”
After argument, the court ruled that “[t]he propriety of the individual charges... assessed in Yura ... is out, out, ” and “[t]he only thing that is in is... whether they were recoverable in interpleader, that is the only thing that we left open....” After continued argument, the court said, “We are going to stop this discussion here and... proceed on with the questioning of Mr. Gaggero” and “I will announce a ruling later....” There was apparently no change in the trial court’s ruling.
Defense counsel stated, “I can represent to the court that, until an hour ago, I never heard anything in this case where [the Knapp firm was] told that we have got a portion of the Yura bills that somehow remains relevant in this case, because they were mis-billed to Yura when they should have been billed to VNBC. [¶] We don’t have a breakdown. We have no expert opinion on that. We haven’t been given the statements in Yura saying here [are] the line items that we think are going to remain at issue in this case, ... and what we heard last week is we are not going to be contesting fees in Yura, which I took to mean anything in the Yura case that they now think is somehow related to some other action, that it is out. That was the ruling.” After saying “I didn’t hear any qualification any explanation anything, ” the court stated, “I don’t like this. Because I think that I was told one thing, and now I am hearing something else.”
Gaggero challenges the trial court’s ruling, claiming it was “prejudicial in that it excluded all evidence of damages caused by [the Knapp firm’s] misconduct” and “insulated [the Knapp firm] from the obviously incorrect entries because of its own sloppy accounting.” Under the circumstances described, we can discern no abuse of the trial court’s discretion (nor any merit in the hyperbolic assertion that the ruling excluded “all evidence of damages caused by [the Knapp firm’s] misconduct”).
4. The exclusion of evidence of the Slocumb matter.
One of the matters for which Gaggero engaged the Knapp firm was the Slocumb suit, in which one of Gaggero’s former lawyers sought payment of fees for her work in First Federal 2. Gaggero claimed in the case at bar that the Knapp firm was negligent in failing to seek a stay of the Slocumb suit after Slocumb filed a claim in the interpleader action, causing Gaggero’s legal expenses in that action to continue. The trial court granted defense counsel’s motion to exclude evidence concerning the Slocumb case, based on Gaggero’s refusal to answer questions about the Slocumb case at his deposition (parts of which occurred less than 30 days before trial and just before the in limine motions were to be filed).
At the hearing on the motion to exclude Slocumb evidence, Gaggero claimed the refusal to answer deposition questions was justified because the questions were not relevant, as the questions related to the “substantive merits” of Slocumb and Gaggero’s claim against the Knapp firm involved a procedural error rather than the substantive merits of the Slocumb case. The trial court disagreed, observing:
“[E]verything you say... demonstrates that this is nothing more than a relevance objection, and rarely, rarely, rarely, is a relevance objection an appropriate subject for an instruction [not to answer]. That is what this comes to....”
The trial court stated that Gaggero’s objections and the instructions not to answer were based on a “very narrow view” of relevance in discovery and amounted to a “systematic obstruction of that deposition at least as to the Slocumb matter.” The court found the instructions not to answer questions prejudiced defense trial preparation, requiring “that the remedial step of foreclosing the subject from [Gaggero’s] presentation be imposed. [¶] The Slocumb matter is now out.”
We again discern no abuse of discretion in the trial court’s ruling. Counsel’s instruction not to answer was improper (see Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014 [even if deposition questions were designed to elicit irrelevant evidence, “irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition”]), and this court will not second-guess the trial court’s conclusion that the obstruction of Gaggero’s deposition prejudiced the Knapp firm in trial preparation and justified the exclusion of the Slocumb evidence. Gaggero contends the trial court had no authority to exclude the evidence, again contending that the trial court cannot do so unless defense counsel has first brought a motion to compel the testimony and the court has ordered the witness to answer. We have already rejected this as an absolute proposition (see Vallbona v. Springer, supra, 43 Cal.App.4th at p. 1545 [evidence sanction was properly imposed without a prior order compelling compliance with discovery]), and the claim is particularly inappropriate in this case, where the deposition session in question took place less than a month before trial, leaving recourse to statutory methods difficult. (The trial court observed Gaggero was in effect arguing that the instructions not to answer “may not have been right but [because it was so late] you have got no remedy.”) Under these circumstances, the trial court’s exclusion of the Slocumb evidence was well within its inherent power to control the litigation and ensure a fair process. (Cf. Castaline v. City of Los Angeles (1975) 47 Cal.App.3d 580, 591-592 [exclusion of testimony of doctor who examined plaintiff three days before trial was within trial court’s “basic power to insure that all parties receive a fair trial”].)
C. The trial court did not abuse its discretion in sustaining objections to exhibits 520-526.
Gaggero contends the trial court abused its discretion in refusing to admit several exhibits into evidence, which Gaggero claims show the extent of his understanding (or lack thereof) of the interpleader action and that the Knapp firm explained very little to him. The exhibits (proposed exhibits 520 through 526) were not on the exhibit list, and Gaggero’s counsel sought to introduce them in connection with Gaggero’s redirect examination, to “rehabilitate him” after cross-examination about his understanding of the interpleader action. Defense counsel pointed out that Gaggero’s understanding of an interpleader action was at the core of the case and was not a new issue, and when the court asked, “Where is the prejudice?” defense counsel replied that the documents were not produced in discovery. When the court asked Gaggero’s counsel, “You got a Bates number for the production of this, I assume?” counsel responded in the negative. When asked whether the documents were produced, Gaggero’s counsel said they were “made available to prior counsel” in a process in which prior defense counsel could inspect and copy documents at plaintiff’s counsel’s office. Gaggero’s counsel stated that “the entire universe was provided to them.” The court asked, “How do we know that?” and “[T]here is no way to verify that, ” and then asked defense counsel to “show[] me it wasn’t produced.” Defense counsel stated, “It wasn’t produced because there are no Bates numbers on it. Prior counsel copied every single e-mail that was available. There would be no reason to exclude or make distinctions among e-mails. Everything that was copied was Bates labeled.... There are no Bates labels on any of these documents....” Gaggero’s counsel told the court, “[T]here is no way for you, I admit, to know that those without Bates numbers were produced.”
After an extended discussion, the court asked to see the declarations that Gaggero’s counsel said he had brought to establish “how the discovery was handled in that instance.” Defense counsel observed that he had had no opportunity to speak with prior defense counsel “to make a counter declaration....” The court looked at the declarations and stated that none of them were made by anyone with any personal knowledge of what documents were produced, and Gaggero’s counsel said, “That is absolutely right....” After reviewing the discovery requests and attachments enumerating what was produced relating to the First Federal case, the court said, “I don’t see anything in Attachment B that suggests where these were produced, ” and counsel for Gaggero also stated, “I don’t see anything in Attachment B where it specifically talks about e-mails being produced in the First Federal matter.” The court concluded, “So it seems to me that... the production at that time appears to have been incomplete at best, ” and Gaggero’s counsel stated, “[W]e have given you everything that we can to try to enlighten you.” The trial court thereupon ruled, “Everybody agrees it was requested... and I am not persuaded it was produced, so we will exclude that from any use.”
Gaggero claims the court’s ruling was an abuse of discretion, because the declarations he presented to the trial court “demonstrat[ed] that all emails had been produced in discovery, ” and defense counsel produced nothing but the unsubstantiated statements of defense counsel to the contrary, based only on the absence of Bates numbers. On the contrary, the trial court clearly concluded that the declarations Gaggero provided – which Gaggero has not included in the appellate record – did not show the emails had been produced, and indeed the court carefully examined Gaggero’s verified discovery responses, describing what had been produced, before determining that the emails had not been produced and should be excluded. Under these circumstances, we cannot say that the trial court abused its discretion in excluding the proposed exhibits.
Gaggero claims exclusion was an abuse of discretion because the Knapp firm did not supply evidence showing surprise or prejudice. But in the trial court, Gaggero made no such argument. When Gaggero’s counsel suggested that the exhibits be used to refresh Gaggero’s recollection, the trial court asked counsel: “Well, but if they were requested, and not produced, should I even allow that?” Gaggero’s counsel answered, while claiming there was no evidence the documents were not produced, “I think you probably shouldn’t....”
D. The trial court did not err in granting the Knapp firm’s motions for judgment.
Under Code of Civil Procedure section 631.8, the trial court, after weighing the evidence at the close of the plaintiff's case, may dispense with defense evidence if the court is persuaded that the plaintiff has failed to sustain his burden of proof. “In weighing the evidence, the trial judge may exercise the prerogatives of a fact trier by refusing to believe witnesses and by drawing conclusions at odds with expert opinion.” If the motion is granted, the trial court’s findings “are entitled to the same respect on appeal as any other findings and are not reversible if supported by substantial evidence.” (Heap v. General Motors Corp. (1977) 66 Cal.App.3d 824, 829-830.)
Gaggero contends the trial court erred in granting defense motions for judgment on his claims of breach of fiduciary duty, breach of contract and professional negligence. We find no error.
1. Breach of fiduciary duty.
Gaggero contends that the Knapp firm breached its fiduciary duty to him (1) by its conduct when its liens were created; (2) by its conduct and use of the liens in the interpleader action, including advising Gaggero that a cross-complaint in the interpleader would benefit him (and failing to advise him that in filing the cross-complaint, he would be admitting that the Knapp firm’s rights were superior to his); and (3) by threatening to withdraw as counsel if Gaggero did not pay the $80,000 due in August 2001.
Gaggero also argues that the motion for judgment on his claim for breach of fiduciary duty “was invalid because the statement of decision does not address the issue.” We disagree. The statement of decision explicitly states that one of the claims at the heart of Gaggero’s case was a breach of fiduciary duty claim. And the court stated facts that supported its conclusion at the hearing that Gaggero’s evidence did not show any breach: for example, “The Court has no doubt that Mr. Gaggero was entirely on board with the liens” and indeed “eager to have them....”
a. The origination of the Knapp firm liens.
Gaggero claims the Knapp firm breached its fiduciary duty at the time Gaggero gave the liens because the liens were “false on their face, ” contained exculpatory provisions, were “not substantively fair, ” and did not define the terms “default” and “seize” (in the provision stating that if Gaggero ever defaulted on any of his obligations to the Knapp firm, the firm was legally entitled to seize the funds and use them to satisfy those obligations). The trial court concluded otherwise, finding:
1 Gaggero and the Knapp firm discussed execution of the liens that would give the firm a claim to the proceeds of First Federal 2 and other matters.
2 Gaggero “was familiar with liens, having already given them to IDC.”
3 Gaggero reviewed and drafted revisions to the disclosure letter.
4 “[T]here is no doubt whatsoever that Mr. Gaggero was receptive to a lien from the outset because of the perceived collateral benefits it would have....”
5 “The creation of these liens at this time was an important matter, highly desired by Mr. Gaggero. The Court is persuaded, to the level of clear and convincing evidence, that from the outset they were an essential component of what was called at trial Mr. Gaggero’s ‘lien strategy.’” The court continued:
“This strategy involved creating interests in the proceeds of various pieces of litigation, in favor of IDC and [the Knapp firm], which would be superior to any subsequently filed liens by judgment creditors of Mr. Gaggero. The superior liens would shield most or all of these proceeds from Mr. Gaggero’s creditors. The principal, but far from the only, claim which was to be thus frustrated was that of the [VNBC] creditors. If by the existence of the IDC and [the Knapp firm] liens the proceeds of, for example, the [First Federal 2]or the Fred Sands Realtylitigation could be protected from levy by these creditors, this would advance Mr. Gaggero’s objective of forcing the [VNBC] creditors, Ms. Slocumb, or Lurie & Zapeda to settle for a deeply discounted payoff.”
1 “The Court finds that Mr. Gaggero was actually aware of the purposes and uses of liens, and knew that they could be asserted against him by the holder, including [the Knapp firm].”
The court “infer[ed] that Mr. Gaggero either assumed (in this initial ‘honeymoon’ period) that he would never have a falling out with [the Knapp firm], or he discounted the risk in pursuit of the more important objective of frustrating his other creditors.”
2 “The Court has no doubt that Mr. Gaggero was entirely on board with the liens – indeed, he was even eager to have them – up to the point in September 2001 when [the Knapp firm] wanted to be relieved as counsel. It was only then that his assessment of the risks and rewards of this strategy began to change, and he started to attempt to revise history. His testimony on cross-examination led the Court to conclude that he was attempting to make things up as he went along.”
In support of his contention that the evidence showed a breach of fiduciary duty, in that the liens were “false on [their] face, ” contained “exculpatory provisions, ” and so on, Gaggero cites nothing but the opinion testimony of his expert, David Parker. But the trial court expressly found that Parker’s hostility and combativeness on cross-examination damaged his credibility, and further that “the integrity of Mr. Parker’s testimony” was compromised by his conduct during trial, seeking to secure the attendance of a witness “so he could testify a particular way on a particular subject.” In addition, the court found that “much of the material which Mr. Parker did not consider [in forming his opinions] was or should have been highly pertinent to his opinions.” And, Parker was asked to assume certain statements by Gaggero were true and, “[a]fter hearing Mr. Gaggero’s testimony, the Court did not accept several of these statements as true, but believe[d] they were not true.” The court concluded that these factors “greatly diminish the weight of Mr. Parker’s testimony, ” and in certain instances – such as his opinion on the scope of the waiver language [the exculpatory clause] in the lien – “Parker’s analysis was just plain wrong.” (See Heap v. General Motors Corp., supra, 66 Cal.App.3d at pp. 829-830 [trial judge may draw conclusions at odds with expert opinion].) In short, there is no basis for challenging the trial court’s conclusion that “there was no overreaching and no material misstatements or non-disclosures by [the Knapp firm] in obtaining the liens.”
An example was that Parker “had never seen drafts of the liens and disclosure letters which Mr. Gaggero had been given to review and modify.”
Gaggero also argues that the lien transactions are subject to a presumption of undue influence, but he is mistaken. (See Walton v. Broglio (1975) 52 Cal.App.3d 400, 404 [the rebuttable presumption of undue influence in a transaction between trustee and beneficiary codified in former Civil Code section 2235 [now in Probate Code section 16004, subdivision (c)] does not apply “to any agreement relating to fees, even where there is a pre-existing attorney-client relationship”].)
b. Use of the liens in the interpleader action.
Gaggero claims the Knapp firm breached its fiduciary duty to him by telling him that filing a cross-complaint in the interpleader – which, like his verified answer, stated that the Knapp firm’s lien rights were superior to all others including his own – would be of benefit to him, and then later using its lien to claim its fees from the interpleaded funds. Again, Gaggero cites only his own and Parker’s testimony, and neither witness’s testimony was found to be credible. Moreover, the trial court expressly found:
Gaggero also complains that the Knapp firm asserted a lien interest on the “entire amount” of the interpleaded funds, while having no claim for more than the $125,000 balance due on its fees. The lien expressly states that the Knapp firm will have a lien “on the entire sum of the security until such time as the entire debt... has been paid in full....”
1 Gaggero read and verified the answer, reviewed the cross-complaint that asserted the claims of the Knapp firm, IDC and Gaggero, and had the opportunity to discuss them with the Knapp firm.
2 “The Court has no doubt that, at the time, it was part of Mr. Gaggero’s strategy that [the Knapp firm]’s and IDC’s lien rights be part of the interpleader, and that they be asserted to be superior to those of VNBC and Ms. Slocumb.”
3 “Mr. Gaggero’s testimony about the answer and cross-complaint was confused and inconsistent. To the extent he claimed he did not understand or did not approve what [the Knapp firm] did, it was wholly unbelievable. His statements that he did not understand what a verification was, or that it was made under penalty of perjury, were false.”
On this record, there is no basis – and Gaggero offers none – for a conclusion that the court’s findings were not supported by substantial evidence.
C. The alleged “abandonment” threat.
Gaggero argues that the Knapp firm breached its fiduciary duty by insisting on payment of $80,000, absent which the Knapp firm “would stop work and withdraw as counsel on all of Gaggero’s matters while Gaggero was away.” This claim, like the others, has no merit. The evidence Gaggero cites to support the claim does not do so. Certainly the Knapp firm demanded payment and indicated Gaggero should get new counsel, but it did not threaten “abandonment.” Indeed, Jardini stated, “We will do the things on calendar and the things necessary to avoid default or dismissal.” The claim that this was “tantamount to threatening abandonment” and constituted a breach of fiduciary duty is supported only by Parker’s testimony, which the trial court was free to reject.
The trial court expressly noted that it “did not accept” Gaggero’s claim that he paid the $80,000 toward outstanding bills “under ‘duress.’”
In sum, we are left in no doubt that substantial evidence supported the trial court’s grant of the Knapp firm’s motion for judgment on Gaggero’s claim for breach of fiduciary duty.
2. Breach of contract.
Gaggero contends the trial court erred in granting the Knapp firm’s motion for judgment on Gaggero’s breach of contract claim, claiming the Knapp firm “did breach the contracts in billing for tasks not permitted by the [legal services agreements] and in the manner of billing.” Gaggero claims that the Knapp firm (1) breached the contracts by demanding payments without submitting the billing disputes to mediation, and without following the practice the parties had established of “conferring together to clarify bills” (which Gaggero alleged became a term of the contract); (2) breached the provision of the agreements that required the firm to keep Gaggero informed of progress and developments (by not telling Gaggero that First Federal had interpleaded the funds on August 28, 2001) and by failing to inform Gaggero of the date of a hearing on VNBC’s motion for fees “until it was too late for [Gaggero] to do anything by way of settlement with VNBC”; and (3) “failed to give notice under the mandatory fee arbitration act... that [Gaggero] could choose arbitration regarding the fee dispute” before “filing a Cross-Complaint on their own behalf in the First Federal Interpleader Action.”
None of Gaggero’s contentions has merit.
As to the claim the Knapp firm breached the contract by demanding payment of bills without submitting the billing disputes to mediation, nothing in the agreements required the Knapp firm to initiate mediation before demanding payment of a bill, and Gaggero could have sought mediation if he wished, but he did not. And the claim that the “practice of conferring with Gaggero about bills became a term of the contract between the parties” was expressly rejected by the trial court, which stated: “The credible evidence is insufficient to persuade me that there was indeed a modification of the contract such as, by conduct, such as would require either side to have telephonic or letter or in-person discussions with regard to the bills as a pre-condition for payment or as a pre-condition for any other steps.”
As for the claims that the Knapp firm breached the contract by not telling Gaggero that First Federal had interpleaded the funds and by failing to inform Gaggero of the date of a hearing on VNBC’s motion for fees, there was no credible evidence that this conduct, if it occurred, caused any injury to Gaggero. As to the first item, the evidence shows Gaggero and the Knapp firm discussing the interpleader in early September. As to the second, the trial court rejected Gaggero’s claim that he would have settled with VNBC and avoided First Federal’s interpleading the funds if only he had been informed of the date of the hearing on VNBC’s motion for further fees. (Gaggero claimed that he had decided to authorize Bezek to offer $170,000 (the offer to be made after briefing but before the hearing on VNBC’s motion for additional fees). But the court found Gaggero never actually instructed Bezek to make this offer, and the court “[did] not accept [Gaggero’s] explanation” that this was because of the Knapp firm’s failure to keep him informed and otherwise follow his instructions. The court said: “[B]ecause Mr. Gaggero had not abandoned his quest to compel VNBC to accept less than the full amount [of] its judgment plus interest, the Court does not believe Mr. Gaggero actually had any intention at this time of offering to pay the full amount of the judgment to VNBC. Specifically, the Court does not believe Mr. Gaggero’s testimony on cross-examination that he planned to send Mr. Bezek to Oakland with a ‘blank check’ to settle the [VNBC] claim.” Thus, these claims of contract breaches fail for lack of evidence of causation (in addition to, as we have concluded ante, lack of any principled basis upon which to award damages). The trial court was entirely justified in concluding that “the evidence of damages on the contract claim is not sufficient to either demonstrate causation or, and perhaps more significantly, to allow anything in the way of a quantification of the damages that is not pure speculation.”
Finally, Gaggero claims the Knapp firm failed to give notice under the Mandatory Fee Arbitration Act (Bus. & Prof. Code, §§ 6200 et seq.) of Gaggero’s right to arbitration under the Act. (Id., § 6201, subd. (a).) This claim is subject to the same defects as to causation and damages as Gaggero’s other claims (to the extent it could be considered a breach of contract claim).
Business and Professions Code section 6201 requires an attorney to forward a written notice to the client of the client’s right to mandatory arbitration “prior to or at the time of service of summons or claim in an action against the client, or prior to or at the commencement of any other proceeding against the client under a contract between attorney and client which provides for an alternative to arbitration under this article, for recovery of fees, costs, or both.” (Id., § 6201, subd. (a).) Further, “Failure to give this notice shall be a ground for the dismissal of the action or other proceeding.” (Ibid.) Gaggero raised this same claim in the interpleader action, where the trial court rejected it, ruling that Business and Professions Code section 6201, subdivision (a) “does not apply since [the Knapp firm] did not file an action against its client. It asserted by a cross-complaint filed on behalf of Gaggero, [the Knapp firm] and IDC that [the Knapp firm] was granted a lien for fees against the judgment awarded to Gaggero and it asked, by the cross-complaint, that the court determine its priority over all of the other liens. It now appears that Gaggero is disavowing what he alleged in the cross-complaint. Thus, the mandatory language requiring dismissal of the action would not apply to this cross-complaint.”
3. Professional negligence.
Gaggero contends (1) the damages in the VNBC collection matter “could and would have been avoided if [the Knapp firm] had acted competently, ” and (2) the Knapp firm’s conduct in erroneously advising Gaggero that he could not recover attorney fees on appeal in the First Federal 2 case was malpractice.
Gaggero’s claim that the Knapp firm’s negligence resulted in his payment of more than would have been necessary to settle the VNBC collection matter is entirely without merit. The trial court expressly concluded otherwise, finding, for example:
1 In March or April 2001, Gaggero offered VNBC $50,000 to settle with the VNBC judgment creditors (who by then were owed more than $150,000), an offer rejected as not being in good faith.
2 Gaggero then told the Knapp firm that he wanted VNBC to know that it could not collect the money from him; he would declare bankruptcy, and VNBC would be behind other creditors.
3 Gaggero knew that interest on the judgment was increasing it and that he might be liable for increased collection costs.
4 Gaggero rejected the Knapp firm’s advice that he pay off the judgment plus interest.
5 In August 2001, Gaggero gave the Knapp firm authority to offer $116,000, an offer open for only 24 hours.
6 It was not until after the Knapp firm ceased to represent him that Gaggero agreed to pay the VNBC creditors approximately $230,000, essentially the full amount of the judgment at the time.
7 The court found that “the reason the [VNBC] claims were not resolved before they finally were was Mr. Gaggero’s steadfast resolve not to offer the [VNBC] creditors any sum approximating what was already incontestably due them.”
8 “The Court is firmly persuaded that the sole responsibility for the failure to resolve the [VNBC] claim rests with Mr. Gaggero, and that to the extent he tried to place the blame elsewhere at trial, that is an after-the-fact rationalization and an evasion of his own responsibility.”
Substantial evidence supports the trial court’s conclusions, and accordingly, there is no basis upon which an appellate court may reach a contrary conclusion.
As for the second claim of erroneous advice on the availability of attorney fees for the appeal of First Federal 2, Gaggero gives no record citations to the evidence for his claims (that is, that the Knapp firm advised him erroneously, he paid for a second opinion from other counsel, the Knapp firm then filed a motion for attorney fees, and fees were awarded). (Gaggero claims he presented evidence he had paid $1,580 to the Knapp firm for the “admittedly incorrect” advice and the Knapp firm never refunded that amount. The only evidence he cites for this is his own testimony, to which the trial court generally gave little credence: “[O]utside the subjects which are corroborated by contemporaneous writings, there is little [the court] can believe unreservedly.”) It is not the function of the court of appeal to review the record, unaided by record references, to determine if an appellant’s claims have any basis in fact. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 [“[i]t is the duty of counsel to refer us to the portion of the record supporting his contentions on appeal”; the record is presumed to support the trial court’s rulings where brief fails to specify portions of record supporting appellant's factual assertions].) Because no evidence other than Gaggero’s own discredited testimony is cited to support this claim, we need not consider it further.
When Gaggero testified that he paid $1,580 in fees for the incorrect advice, his memory was refreshed by an exhibit with a colored Post-it note (not in evidence) on which the answer to the question ($1,580) was written. The court stated in its decision that “[t]his incident made an unfavorable impression.”
E. The trial court did not err in the award of attorney fees.
The legal services agreements between the Knapp firm and Gaggero provided that the prevailing party “in any action or arbitration to enforce the terms of this agreement shall be entitled to recover reasonable attorneys fees and all costs in any such action or arbitration.” The trial court awarded $1,202,994.50 in fees, the full amount requested. Gaggero contends this was error because the parties’ agreement allowed fees only for “that fraction... devoted to defending [Gaggero’s] breach of contract claims.”
Gaggero correctly states the general principle that, when a contract action is joined with other causes of action beyond the contract, the prevailing party may recover attorney fees under Civil Code section 1717 “only as they relate to the contract action.” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129 [“[a]ccordingly, attorney’s fees incurred solely for... defending against the tort causes of action are not recoverable”].) But Gaggero fails to describe the basis for the trial court’s award of attorney fees, and fails to acknowledge the authorities that supported the court’s decision to award the full amount of the Knapp firm’s fees. As Reynolds Metals also states, “Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Id. at pp. 129-130; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111 [“[a]pportionment of a fee award between fees incurred on a contract cause of action and those incurred on other causes of action is within the trial court’s discretion”; trial court could reasonably find that appellant’s claims were inextricably intertwined, “making it ‘impracticable, if not impossible, to separate the multitude of conjoined activities into compensable or noncompensable time units’”].)
In this case, the trial court expressly found that Gaggero’s claims were “inextricably intertwined”:
“… I think they are inextricably intertwined. [¶] I don’t think they are divisible. Frankly there is no practical, no reasonable way to divide them, and the witnesses who testified at trial certainly testified on all these issues. [¶] You couldn’t divide the trial testimony..., and it seems to me that first, it would be impossible to divvy up this cause of action, because they are so intertwined. [¶] Secondly, it seems to me that the way that this was presented[, ] the predicate for the suit was such that they were both factually and legally intertwined, the [legal services agreements]. [¶] The [legal services agreements] are the foundation for everything else in this case, and they are the foundation for not only the contractual claims, but they provide the foundation for the supposed tort claims, and they provide a huge chunk of the damage claims, and I don’t think you can separate them....”
Gaggero’s own opening brief melds the issues, asserting that the same conduct constituted breach of contract and breach of fiduciary duty, and that various acts of the Knapp firm constituted both professional negligence and breach of fiduciary duty.
We can detect no basis (and Gaggero offers none) for concluding that the trial court abused its discretion in so ruling.
DISPOSITION
The judgment is affirmed. The respondents are to recover their costs on appeal.
WE CONCUR: BIGELOW, P. J., RUBIN, J.
● On March 14, 2001, the VNBC parties told the Knapp firm they would aggressively pursue collection of the judgment, that their attorney fees in connection with collection efforts were recoverable as costs, and that to avoid increasing the amount due by additional attorney fees, Gaggero should satisfy the judgment, which then aggregated in excess of $167,000.
● On June 6, 2001, Gaggero e-mailed the Knapp firm (Garcia), saying, “You better settle [VNBC] before Stein [one of the VNBC judgment creditors] gets wind of the First Fed appeal result.”
● On June 13, Garcia reported to Gaggero that Stein “wants $200,000 to settle, ” and Garcia told him (Stein) that this would not work. Gaggero responded by instructing Garcia, “[D]o not communicate with them any further.”
● On June 22, the Knapp firm suggested that Gaggero consider tendering payment of the VNBC judgment, including interest and fees awarded to date, as payment in full. Gaggero responded, “This is not an option.” (At this point, Gaggero had involved Bezek in negotiating with VNBC on a settlement.)
● On July 3, 2001, the VNBC parties moved for attorney fees and costs ($63,580.48) incurred in attempting to enforce their judgment, and on October 26, 2001, the court awarded VNBC fees and costs of $81,931.59.
● The Knapp firm’s Garcia told Gaggero in a June 21, 2001 e-mail that he had told Stein (the lawyer for a VNBC judgment creditor), as previously discussed with Gaggero, that he (Gaggero) was “judgment proof.” Gaggero replied that Garcia should send Stein a letter demanding a detailed breakdown of amounts owed on the VNBC judgments; he wanted to know what each VNBC creditor was owed individually so he could “attempt to work out a payment plan with each of them individually.” Gaggero told Garcia to hold off on the letter for a day or so “if [Stein] seems warm to the idea of settlement after the discussion re: Schlein’s [a VNBC judgment creditor] depo, BK [bankruptcy] and possible loss of Stacey and [First Federal 1] appeals and nonrecoverability of HIS FEES in bankruptcy, or a competing creditor dispute w/ IDC and [the Knapp firm]....”
● Gaggero’s voicemail message of May 23, 2001, to the Knapp firm, referring to a comment by Stein about selling the VNBC judgment to others, stated that “we want to put him on notice that he must disclose to them the probability of non-recovery from me in that I am without assets.... Further that... anybody who purchased that would be taking it knowing that (a) I am without assets and (b) they are behind and would certainly be behind the other creditors that are secured against various assets and would also be buying the judgment knowing that it’s going to be a battle – a legal battle against those other creditors – your firm included and other lawyers.... [H]e’s advising his client to buy something knowing that there’s a zero probability of recovery from me.” And on June 18, 2001, Gaggero said: “[M]aybe after... my debtors exam they’ll be anxious to settle for less than what they think they can get today.”
● On March 30, 2001, the Knapp firm (Garcia) advised Gaggero that Harris had been told that if the First Federal 2 judgment was affirmed, First Federal would interplead the judgment. Garcia explained how an interpleader action worked: “Interpleader is a new lawsuit whereby a party holding money that belongs to others deposits it with the court and sues them to require them to fight it out among themselves. This would mean that we would be left to have IDC, you, us and the [VNBC] parties fight it out over the judgment.”
● On August 9, 2001, the Knapp firm (Harris) was told by First Federal’s counsel (and in turn told Gaggero) that First Federal wanted to deposit the funds awarded Gaggero in a trust account or move for interpleader to cut off any further interest obligation, that First Federal would send a proposal in writing, and that the remittitur in First Federal 2 would be issued shortly. The next day, Gaggero approved a letter Harris sent counsel for First Federal. The letter said Gaggero intended to move for attorney fees in First Federal 2 after the remittitur was issued, that First Federal 1 was scheduled for oral argument in early September 2001, and that after that date, it might be possible to arrange for a collective resolution of the two cases.
● The remittitur in First Federal 2 was issued August 13, 2001.
● On August 14, 2001, First Federal’s counsel responded to Harris’s letter, saying counsel was agreeable to the continuing accrual of postjudgment interest, if Gaggero would stipulate “to stay enforcement of the Judgment entered in [First Federal 2], until such time as the California Court of Appeal... has issued Remittitur in [First Federal 1].” Gaggero responded to First Federal’s proposal by telling Harris the final decision in First Federal 1 “could be years, ” and “[i]t is time to settle both cases....”
● On August 17, 2001, Jardini advised Gaggero against agreeing to a stay of enforcement on the terms First Federal suggested (until the other appeal was finalized), and that “[w]e may have to slug it out with the VNBC people in the [First Federal] ‘interpleader.’ Short of a deal with Goldowitz [a VNBC judgment creditor], who is not dealing, that is likely what will happen.” Gaggero agreed “we should not stip[ulate]” with First Federal. On August 21, 2001, Harris wrote to First Federal’s counsel, rejecting the stipulation.
● On August 28, 2001, First Federal filed its complaint in interpleader, depositing $1,031,557.05 with the clerk of the court and naming Gaggero, Slocumb and the VNBC parties as defendants. (First Federal claimed an interest in, and did not deposit, $200,000 of the judgment in First Federal 2, claiming a right to a setoff for the trial court judgment in First Federal 1.)
● On September 5, 2001, Jardini reported that he could not get a settlement demand from the VNBC creditors; and that First Federal wanted to “pay the money into court and walk away” but to reserve $200,000 and not pay it into court, which was improper. Gaggero responded the same day, telling Jardini to “get a settlement demand from Goldwitz” and, “As for First Fed, please, DO NOT let them put the money with the court. Start the settlement talks NOW and let the oral arg[ument] on the 7th [in First Federal 1] be the dressing.”
● On September 9, 2001, Gaggero e-mailed Jardini and Harris. He said that, in light of the oral argument that had just occurred in First Federal 1, Harris should call First Federal’s counsel and “agree to stip to hold off payment until the opinion from the court of appeal is handed down on FF1 and to dismiss the interpleade[r]. This will thwart VNBC’s hopes for a further lever....”
● On September 25, 2001, Gaggero e-mailed Jardini, stating he was “never told that FF placed one million dollars with the court already, ” and he “would have handled the past two months legal work and strategy differently if I had been advised differently.” (On October 12, Gaggero e-mailed Harris, again saying he had not been informed the funds were deposited along with the interpleader filing, and “[i]f I had been, I would have instructed you not to bother opposing it. I was not told that an interpleader was a lawsuit, I thought it was some type of motion.”)
● On October 12, Harris told Gaggero a response to the interpleader lawsuit was due in a week’s time, and he would send a draft of the answer and cross-complaint. Jardini told Gaggero that there was nothing that could have been done by anyone to prevent First Federal from interpleading the money.
● On October 19, 2001, Gaggero’s verified answer was filed in the interpleader action, as was a cross-complaint on behalf of Gaggero, IDC, and the Knapp firm against the VNBC judgment creditors and Slocumb. The cross-complaint sought a declaration that the Knapp firm’s interest had priority over all others, and that IDC’s interest had priority over those of all others except the Knapp firm’s.
● On November 13, Gaggero wrote Harris saying he had no alternative but to settle with VNBC, and complaining that VNBC got an $81,000 fee judgment against him “quite unexpectedly” because of the Knapp firm’s actions and inactions. “If VNBC realizes that collection against the FF award is [impossible], they may settle for less than their full judgment with atty fees and if you do a good job [filing a third party claim on behalf of IDC and the Knapp firm] they will realize they [cannot] collect [attorney] fees against me for pursuing this judgment as the funds are claimed by third parties.” Harris responded that Gaggero would never give the Knapp firm authority to settle the matter, and that Gaggero was aware of the hearing (on VNBC’s additional fees).