Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. SC084355, Cesar C. Sarmiento, Judge.
Law Offices of Howard A. Kapp and Howard A. Kapp for Plaintiff and Appellant.
Palarz & Williams and Herman S. Palarz for Defendants and Appellants Frank Parker and Frank Parker Family Trust.
Haight, Brown & Bonesteel, Peter Q. Ezzell, Stephen M. Caine and Nancy E. Lucas for Defendants and Appellants Wasserman, Comden, Casselman & Pearson and Olga Karasik.
CHAVEZ, J.
Defendants and appellants, Frank Parker (Parker), Frank Parker Family Trust, Wasserman, Comden, Casselman & Pearson, LLP (WCCP), and Olga Karasik (Karasik) (collectively, defendants) appeal from the judgment entered in favor of plaintiff and appellant Mark Boothby (Boothby) following a jury trial. The jury found that Parker and Boothby had entered into an oral partnership agreement, and that Parker breached the agreement and fiduciary duties owed to Boothby, resulting in $725,000 in economic damages, but no emotional distress damages. The jury further found that Parker engaged in the breach of fiduciary duty with malice, fraud, oppression, or despicable conduct, and awarded Boothby $350,000 in punitive damages.
Though Frank Parker, LLC was named in the pleadings, the judgment was silent as to that entity and there is no appeal on its behalf.
Parker and the Frank Parker Family Trust are referred to collectively as the Parker defendants. WCCP and Karasik are referred to collectively as the WCCP defendants.
As to Karasik, the jury found that Karasik was negligent and that such negligence was a substantial factor in causing Boothby economic damage. The jury also found that Karasik breached a fiduciary duty owed to Boothby, but that she did not engage in the breach of duty with malice, fraud, oppression, or despicable conduct. Judgment was entered against the Parker defendants in the amount of $1,075,000 and against the WCCP defendants in the amount of $725,000.
Boothby appeals from the judgment as well, arguing that evidentiary and instructional errors resulted in a damages award that was too low.
On February 17, 2010, the WCCP defendants and the Parker defendants filed a request for judicial notice and a motion to dismiss portions of Boothby’s cross-appeal, to which Boothby filed opposition on February 19, 2010. Both the request and the motion are denied.
BACKGROUND
1. Factual Background
Boothby and Parker were actors and friends who had known each other since 1990. In 2002, they decided to go into business together by purchasing homes, remodeling and reselling them. Parker agreed to provide funds to purchase and remodel the homes, Boothby agreed to contribute “sweat equity” by doing the necessary work, and the two men agreed to split the profits equally after reimbursing Parker for monies he expended in acquiring and remodeling the properties.
In September 2002, Boothby found an undeveloped parcel of land in Lancaster, California offered for sale at a price of $495,000. The property was located in an existing residential neighborhood near the freeway and near various retail establishments. Boothby learned that the property had preexisting building plans, and that the previous owners had already deposited approximately $250,000 for bond fees and $75,000 in school fees to the City of Lancaster for off-site improvements required in connection with the anticipated development of the property.
Boothby informed Parker about the property. Although neither Boothby nor Parker had real estate development experience, they decided to purchase and develop the property into condominium units. Boothby and Parker both signed a purchase offer for the property at its listed price of $495,000. While the property was in escrow, they received an unsolicited offer to purchase the property. Boothby and Parker discussed the offer, which would have yielded them each a profit of $250,000, but decided to refuse the offer and to develop the property instead.
Boothby and Parker formed a Nevada corporation, Fresh Start Developments, LLC (Fresh Start), for the purpose of taking title to and developing the property. Before the close of escrow, Parker informed Boothby that he wanted to take title to the property in his name only. The escrow instructions were modified to reflect this change, and Boothby executed a quitclaim deed relinquishing any right to ownership of the property.
Parker and Boothby discussed their respective roles in the anticipated development project. They agreed that Parker would provide the funds necessary to prepare the property for development and that Boothby would facilitate that process. They also reaffirmed their agreement to share the profits equally after reimbursing Parker for funds he expended.
To oversee the development process, Boothby moved to an apartment in Lancaster. Boothby met with architects and engineers and educated himself on the requirements for land development projects. Parker paid Boothby’s rent and telephone expenses and provided Boothby with a truck and paid for its insurance. Parker also paid Boothby $2,000 per week as an advance on profits. Parker obtained an equity line of credit against his home to help finance these expenses.
Parker experienced health problems in May 2003 and was hospitalized. Because of Parker’s health issues, the partners considered selling the property rather than developing it. Boothby began looking for potential buyers. Dan Pryor (Pryor), an experienced local developer and general contractor who did business through a corporate entity named ACRES, Inc. (ACRES), offered to purchase the property for $3 million. In September 2003, Boothby and Parker abandoned the idea of selling the property and decided to move forward with its development.
In December 2003, Parker and Boothby contacted Pryor to discuss a potential development deal. Under the terms of the deal, ACRES would obtain construction financing for the project and build a 281,950 square foot condominium project at a price of $65 per square foot. Fresh Start would receive 75 percent of the net profits after sale of the condominiums and ACRES would receive 25 percent.
In mid-January 2004, Boothby contacted Karasik, an attorney at WCCP, to discuss documenting the proposed development deal. Boothby told Karasik that the transaction was worth between $5 million and $8 million. On January 12, 2004, Boothby e-mailed two documents to Karasik, a real estate agreement with Pryor, and an operating agreement for Fresh Start. Boothby’s e-mail transmittal stated: “[P]lease find attached the real estate and operating agreement contracts. [¶] Please verify that our rear end is covered.”
The following day, Karasik sent Boothby an e-mail response that stated in part: “I briefly looked at your contracts. Both are very poorly drafted and have to be re-drafted. [¶] Standard Operating Agreement usually runs about 23 pages, not one; what you have has no legal meaning. [¶]... [¶] What I propose is to schedule a meeting with you and perhaps your partner, go over the terms and conditions of each document, and then I will draft proper documents to reflect the transaction. You have too much money at stake to leave it like that.”
Boothby and Parker met with Karasik on January 14, 2004. Karasik understood that Boothby and Parker were partners and had agreed to share the profits from the proposed development project. Boothby explained to Karasik that Parker held title to the property in his own name, but that the property would be considered an asset of Fresh Start. Karasik explained the risks of holding title as an individual rather than through a limited liability company and suggested that the partners consider holding title through a California limited liability company. Parker said that he would consider it. During the course of the meeting, Parker mentioned to Karasik that he needed to do some estate planning work, and Karasik indicated that she could help him with that work as well. At the conclusion of the January 14, 2004 meeting, Boothby signed a retainer agreement identifying himself, Parker, and Fresh Start as WCCP’s clients.
Approximately two days later, Boothby returned to WCCP’s offices and provided Karasik with more detailed information about the development project. Boothby also provided Karasik with documents concerning Fresh Start.
Karasik prepared a term sheet outlining the major deal points with Pryor and e mailed it to Boothby. The term sheet identified Fresh Start and ACRES as the contracting parties and stated that the purchase price for the land, plus expenses paid at the time for “developing architectural, engineering and geological plans” totaled more than $750,000.
On January 22, 2004, Karasik received a facsimile transmission from Pryor, consisting of the term sheet she had prepared, signed and initialed by Pryor. After receiving Pryor’s transmission, Karasik began drafting a development agreement.
On January 25, 2004, Karasik sent a draft development agreement to Pryor for his review. The draft development agreement identified Fresh Start and ACRES as the contracting parties. On January 27, 2004, Karasik met with Boothby, Parker, and Pryor to discuss the draft development agreement.
In February 2004, Parker’s friends and family, who believed Boothby was taking advantage of Parker by engaging in a scheme to defraud Parker, convinced him to sever his relationship with Boothby. On February 12, 2004, Boothby received by facsimile transmission a revised development agreement, with a request for his comments on “areas of concern or vital info.” The revised development agreement contained certain handwritten changes, including an interlineation deleting Fresh Start and substituting Parker as the party contracting with ACRES. Boothby telephoned Parker and Karasik to ask them why Fresh Start had been removed from the development agreement. He could not reach Karasik and did not receive a satisfactory explanation from Parker.
The following day, Parker and another man arrived unannounced at Boothby’s apartment in Lancaster. Parker angrily demanded the keys to the truck he had acquired for Boothby’s use. Boothby felt threatened and asked Parker why he wanted the truck back, but Parker would not respond. Parker refused Boothby’s request to confirm the validity of their partnership agreement, took the keys to the truck, and left. Parker stopped paying the rent on Boothby’s apartment, and Boothby received a notice to vacate shortly thereafter. Parker and Boothby then ceased communicating with each other.
On February 13, 2004, Parker and Pryor signed a development agreement that identified Parker and ACRES as the contracting parties. The agreement created a joint venture in which Parker would receive 75 percent of the net profits and ACRES would receive 25 percent.
In March 2004, Boothby received a letter from Karasik dated March 5, 2004 terminating her representation. The letter stated in part:
“Pursuant to our Retainer Agreement, I drafted and negotiated the Agreement with the Developer, and the final version of the Agreement was executed by Frank Parker, as owner of the land, and by Developer, on February 13, 2004. [¶] It is my understanding that the legal representation with regard to the Transaction is completed at this point, subject to Developer’s performance of his obligations under the Agreement. [¶] In the two weeks following completion of the Transaction, it became apparent from the telephone conferences with both of you, that there is an actual conflict of interest and misunderstanding between both of you with regard to your rights and obligations to each other. [¶] Please be advised that the California Rules of Professional Conduct provide that such actual conflict of interest prevents us from further representing either of you in connection with this Transaction.”
After receiving Karasik’s letter, Boothby learned for the first time that Parker had entered into the development agreement with ACRES.
In June 2004, Pryor and Parker restructured the terms of their development agreement. Under the terms of the revised agreement, ACRES and certain other entities owned and controlled by Pryor purchased the property and the right to develop the property from Parker for an initial sum of $760,000 or $800,000. Parker retained an equity participation interest in the project, according him 75 percent of the gross purchase price on any condominium units actually built and sold, after reimbursing ACRES for its construction costs. In September 2004, Pryor obtained a $1.6 million construction loan on the property.
2. The Instant Action
The Pleadings
Boothby commenced this action against defendants on February 8, 2005. In the operative third amended complaint, Boothby asserted causes of action against WCCP for legal malpractice and breach of fiduciary duty and against Parker for breach of contract, breach of fiduciary duty, promissory fraud, defamation, and intentional infliction of emotional distress. He sought damages for lost profits, emotional distress, physical injuries, and lost wages.
Parker cross-complained against Boothby, alleging “elder abuse,” fraud, and intentional and negligent misrepresentation, and alleging that Parker suffered from “diminished mental capacity,” due to dementia, alcoholism, and diabetes, which restricted his ability to carry out normal activities or to protect his rights.
Relevant Motions In Limine
Before trial commenced, the WCCP defendants filed a motion in limine to bar evidence and claims relating to WCCP’s representation of Pryor in June 2004, after terminating their representation of Boothby and Parker in March 2004. The WCCP defendants argued that their subsequent representation of Pryor in a restructuring of the development deal with Parker had no relevance to Boothby’s claims concerning his previous agreement with Parker. Boothby opposed the motion, arguing that the subsequent representation was a violation of the rules of professional conduct and a continuing breach of fiduciary duties owed to him. The trial court sustained the motion under Evidence Code section 352, on the ground that the subsequent representation was not relevant to Boothby’s claims regarding his exclusion from the February 2004 development agreement.
The WCCP defendants also filed a motion in limine to bar testimony from undesignated expert witnesses and to preclude Boothby from testifying as an expert. At the hearing on that motion, Boothby’s counsel represented that if Boothby was found to be unqualified he had two alternative unretained expert witnesses who could testify about property values in Lancaster. The trial court deferred ruling on the issue until it had heard and considered all of Boothby’s trial testimony.
During the Evidence Code section 402 hearing on Boothby’s qualifications during the trial, Boothby’s counsel sought to qualify Boothby to testify as an expert on the real estate market generally in Lancaster and on per square foot prices for condominium units in Lancaster. The trial court found him unqualified to do so.
The Trial
At the trial the parties presented documentary evidence and the testimony of percipient and expert witnesses. Boothby testified about his background, including his work as a handyman in England, his immigration to the United States, and his work as an actor in this country. He described his struggles with alcohol and cocaine abuse, and his diagnoses of Graves’ disease in 2002 and of bipolar condition in 1993. Boothby also testified about his relationship with Parker, their agreement to purchase and develop the Lancaster property, and their agreement to share equally the net profits from that development. Boothby described his initial contact with Karasik, and how he, Parker and Fresh Start retained her to draft an operating agreement for Fresh Start and a development agreement between Fresh Start and ACRES. Boothby said that the initial drafts of the development agreement Karasik prepared identified Fresh Start and ACRES as the contracting parties. According to Boothby, no one ever discussed with him substituting Parker in place of Fresh Start as the party contracting with ACRES. He said he did not learn of the substitution until after Parker and Pryor signed the development agreement. Boothby also testified about his physical and psychological deterioration after the deal with Parker collapsed.
Karasik testified that after her initial meeting with Boothby and Pryor, she was retained to negotiate and draft a deal with Pryor. She said she was never asked to work on an operating agreement for Fresh Start, nor was she asked to prepare a partnership agreement between Boothby and Parker that addressed sharing the profits from the Lancaster development. Karasik testified that the parties discussed, in Boothby’s presence, substituting Parker for Fresh Start as the party with whom ACRES was contracting because Parker held title to the property.
Boothby’s expert, Lawrence Jacobson (Jacobson), testified that although Karasik could properly represent Parker, Boothby, and Fresh Start collectively in their negotiations with Pryor, she could do so only after advising the three parties that the joint representation presented a potential conflict of interest and obtaining a waiver of that conflict from each of them. Jacobson further testified that Karasik could not represent Boothby and Parker in negotiations between the two of them because of an actual conflict between them. Jacobson opined that Karasik’s failure to obtain a written conflict waiver at the outset of her joint representation fell below the standard of care. Jacobson further opined that Karasik’s subsequent representation of Parker in estate planning matters and her subsequent representation of Pryor in a separate real estate matter, without obtaining conflict waiver letters, fell below the standard of care.
Defendants’ expert, Dr. James High (High), testified concerning his review of Boothby’s medical records and his examination of Boothby. He discussed Boothby’s preexisting mental health issues, including his struggles with depression and bipolar disorder. He also recounted discussions he had with Boothby about the breakup of Boothby’s marriage to his third wife in September 2003. High opined that Boothby had not sustained any psychiatric injury or illness attributable to Parker’s or Karasik’s conduct.
Pryor testified about his negotiations with the parties and his insistence on contracting directly with Parker, the title owner of the Lancaster property. Pryor also testified that when he signed the development agreement with Parker, he paid Parker $120,000. Pryor described problems he encountered in moving the development forward after he entered into the development agreement. At the time of the trial, construction had not yet commenced, because the City of Lancaster had not yet approved the construction plans. Pryor testified that a few months after the development agreement was signed, he and Parker restructured their transaction and ACRES purchased the property from Parker. The purchase agreement specified an initial payment of $800,000, and set forth a payment schedule. According to Pryor, he paid Parker $350,000 pursuant to the terms of the purchase agreement and $450,000 was still owed.
Parker, his wife Mary Garofalo Parker, and Boothby all testified about the extent of Parker’s assets and his liabilities. Parker also testified that he paid $800,000 for the Lancaster property; that Pryor had “returned” $600,000 of that amount; and that Pryor still owes him $200,000. Parker said that he expects to receive further payment from Pryor.
3. Relevant Jury Instructions
The jury was instructed concerning economic damages as follows:
“Mark Boothby also must prove the amount of his damages according to the following instructions. Mark Boothby does not have to prove the exact amount of damages. You must not speculate or guess in awarding damages. [¶] Mark Boothby claims damages for lost profits. [¶] To recover damages for lost profits by Frank Parker, Mark Boothby must prove that it is reasonably certain he would have earned profits but for the breach of the contract by each defendant. [¶] To decide the amount of damages for lost profits, you must determine the gross, or total, amount Mark Boothby would have received if the contract had been performed and then subtract from that amount the amount expended by Frank Parker in connection with his purchase and the development of the property. [¶] You do not have to calculate the amount of the lost profits with mathematical precision, but there must be a reasonable basis for computing the loss.”
The jury was further instructed: “Mark Boothby must prove the amount of his damages. However, Mark Boothby does not have to prove the exact amount of damages that will provide reasonable compensation for the harm. You must not speculate or guess in awarding damages although you may consider if Frank Parker’s behavior caused some degree of uncertainty in the calculation of damages.”
As to damages against the WCCP defendants, the jury was instructed: “To recover damages from defendants Wasserman, Comden, Casselman & Pearson LLP and Olga Karasik, Mark Boothby must prove that he would have obtained a better result if Olga Karasik had acted as a reasonable careful attorney.”
4. Jury Deliberations
During deliberations, the jury expressed confusion regarding damages by sending the following question to the trial court: “How does one come up with a gross profit for this development project per #37 jury instructions without speculating on ‘the reasonable basis.’”
That jury instruction is quoted in the section 3 above.
After conferring with counsel, the trial court responded: “You must base your damages based on the facts as presented in this courtroom. All I can do is refer you back to the instructions. I can’t tell you what the facts are in this case. You are the judges of what the facts are, whether the facts have or have not been proven. Any damages you find must be supported by facts as you determine the facts to be in accordance with the law as you have been instructed which are detailed in this pack of instructions which you have been given.”
The jury foreperson then asked a “follow-up” question: “Is it reasonable to use common methodology that’s used in the financial world, for example, to make an estimate of a future amount and discount that back to a present value?” The following exchange ensued:
“THE COURT: Is there anything in the record to support that?
“JUROR NO. 12: No, but it’s common usage in the financial world to say, you know, would you rather have a hundred dollars today or $110 in the future?
“THE COURT: There’s no instructions on -- there is nothing in the record to support that. And again, I have to tell you you must base your decision on the facts and evidence presented in this case. You don’t have to use any specialized training or area of any commercial or business experience you may have. You need to decide this case based on the facts as presented in this courtroom and based on the law that’s presented. And there are instructions in here that refer you to that, that you’re not to use any specialized training or experience you may have gained in any professional areas you have experience in.”
The court then directed the jurors to deliberate further.
5. The Verdict
After further deliberation, the jury returned a special verdict in which it found that Parker and Boothby had a partnership agreement and that Parker breached the agreement. The jury further found that Parker’s breach of the partnership agreement constituted a breach of fiduciary duty owed to Boothby and that Parker engaged in the breach of fiduciary duty with malice, fraud, oppression or despicable conduct. The jury awarded economic damages against Parker in the amount of $725,000, punitive damages in the amount of $350,000, and no emotional distress damages.
The jury found that Karasik was negligent and that she breached a fiduciary duty owed to Boothby. In response to the question, “How much was Mark Boothby economically damaged, if at all, as a result of Olga Karasik’s negligence?” the jury indicated “[t]he same as our answer to Question No. 5,” which awarded economic damages of $725,000 against Parker. The jury awarded no noneconomic damages or punitive damages against Karasik.
6. Posttrial Motions
The WCCP defendants moved for judgment notwithstanding the verdict (JNOV) on the grounds that there was no substantial evidence of the value of the development or the land to support any damages award based on lost profits and that Karasik’s negligence was not a proximate cause of Boothby’s damages. The Parker defendants also filed a JNOV motion and a motion for a new trial challenging the sufficiency of the evidence to support the economic and punitive damages awards.
The trial court denied the motions, stating that although “there was no evidence presented from an expert regarding the value of any possible condominium sales[,] of any carrying costs, escrow fees, those kind of things.... [T]here was evidence about the value of the property, the offer of the sale price, as I recall, was three million dollars and a six hundred thousand dollar loan taken out -- whatever it was, I don’t have the numbers, I don’t recall them exactly, but I found that there was sufficient evidence by which the jurors, the trier of fact, could make an evaluation of the lost profits.”
7. The Judgment and Appeal
Judgment was entered on May 4, 2007, awarding Boothby the sum of $725,000, together with costs in the sum of $10,573.50 against the Parker defendants and the WCCP defendants, jointly and severally, and awarding Boothby the sum of $350,000 as against the Parker defendants. This appeal and cross-appeal followed.
THE PARTIES’ CONTENTIONS
1. Causation
The WCCP defendants contend the evidence was insufficient to support the element of causation in Boothby’s legal malpractice claim against them.
2. Compensatory Damages
All of the parties challenge the jury’s $725,000 compensatory damages award. The WCCP defendants and the Parker defendants challenge the sufficiency of the evidence to support that award. The WCCP defendants further contend the trial court abused its discretion by overruling their objections to evidence concerning unaccepted offers to purchase the property and the $1.6 million loan Pryor obtained after purchasing the property from Parker.
Boothby contends he is entitled to a partial new trial on the issue of compensatory damages because the trial court improperly excluded his testimony regarding estimated pricing per square foot for the proposed development as a basis for calculating lost profits. Boothby also claims the special verdict form was ambiguous and that he is entitled to a corrected judgment awarding him compensatory damages in the amount of $1,450,000, rather than $725,000.
3. Punitive Damages
Parker contends the punitive damages award was improper, unsupported by the evidence, and excessive. Boothby contends he is entitled to a partial new trial on the issue of punitive damages as against the WCCP defendants because the trial court improperly excluded evidence concerning WCCP’s representation of Pryor after March 2004.
4. Emotional Distress Damages
Boothby claims the jury’s decision to award him nothing for emotional distress damages was “unlawful” and “inadequate as a matter of law.”
DISCUSSION
I. Causation
The plaintiff in a legal malpractice action must prove, among other things, that the attorney’s negligent acts or omissions caused the plaintiff to suffer financial harm or loss. When the alleged malpractice occurs in the performance of transactional work, such as preparing documents for a business transaction, the plaintiff must establish causation by showing that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1235.) This “but for” inquiry is a part of the “substantial factor” test for causation applicable in negligence actions. (Id. at p. 1239 [“‘the “substantial factor” test subsumes the “but for” test’”].) “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm.” (CACI No. 430.) A substantial factor causing harm “does not have to be the only cause of the harm.” (Ibid.) An attorney’s negligence, combined with another’s exploitation of that negligence, can both be concurrent causes of harm. (Viner v. Sweet, supra, at p. 1240.)
“[T]he plaintiff need not prove causation with absolute certainty. Rather, the plaintiff need only ‘“introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.”’ [Citations.]” (Viner v. Sweet, supra, 30 Cal.4th at p. 1243.) “Causation is generally a question of fact for the jury, unless reasonable minds could not dispute the absence of causation. [Citation.]” (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666.)
The WCCP defendants contend the jury’s finding that Parker acted “with malice” amounted to a determination that Parker’s conduct alone would have been sufficient to bring about Boothby’s harm. The WCCP defendants further contend the evidence is insufficient to establish causation because there was no evidence that Parker would have acted differently but for Karasik’s negligence. We review WCCP’s challenge to the sufficiency of the evidence to support the jury’s verdict under the substantial evidence standard. Under that standard, we view the evidence in the light most favorable to the prevailing party, giving it the benefit of all reasonable inferences, and resolving all conflicts in support of the jury’s findings. (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.)
The jury’s finding that Parker acted “with malice” was necessary to support the award of punitive damages under Civil Code section 3294. (Civ. Code, § 3294.) Under that statute, “malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id., subd. (c)(1).) The determination that Parker acted “with malice” in breaching fiduciary duties owed to Boothby, thereby triggering liability for punitive damages, did not preclude the jury from finding that Karasik’s negligence was also a substantial factor in causing Boothby harm.
There was substantial evidence that Karasik’s negligence facilitated Parker’s breach of duty. Karasik signed a retainer agreement indicating that she would act as Boothby’s attorney. Karasik led Boothby to believe that she was drafting an operating agreement for Fresh Start as well as a development agreement that would protect Boothby’s and Fresh Start’s interests in the proposed transaction, but she did not do so. Karasik’s subsequent conduct further misled Boothby when she circulated a term sheet and a draft development agreement that identified Fresh Start and ACRES as the contracting parties. She then failed to advise Boothby when she revised the development agreement to replace Fresh Start with Parker as the party contracting with ACRES. She also failed to advise Boothby of the actual conflict of interest caused by that revision until after Parker and ACRES entered into the revised development agreement. Substantial evidence supports the jury’s determination that Karasik’s negligence was a substantial factor in causing harm to Boothby.
The absence of evidence as to whether Parker would have acted differently had Karasik not been negligent does not mandate a reversal of the jury’s finding. A plaintiff in a legal malpractice action can rely on circumstantial evidence to establish causation. (Viner v. Sweet, supra, 30 Cal.4th at p. 1242.) The plaintiff need not obtain “an express concession by the other parties to the negotiation that they would have accepted other or additional terms....” (Id. at pp. 1242-1243.) Moreover, under the circumstances presented here, an equally relevant inquiry is whether Boothby would have acted differently in the absence of Karasik’s negligence and breach of duty. The evidence provides a reasonable basis for concluding that Boothby would have acted differently had he known his interests were not being protected by his attorney and that he was being excluded from the transaction altogether.
II. Compensatory Damages
The parties agree that the jury’s $725,000 compensatory damages award was based on Boothby’s entitlement to net proceeds from the sale of the property, rather than projected profits from its proposed development. The WCCP defendants challenge the sufficiency of the evidence to support that award, claiming it was based on improperly admitted evidence. Boothby contends the trial court improperly precluded him from testifying about the estimated price per square foot for condominium units in the proposed development and that he is entitled to a partial new trial on the issue of compensatory damages. Boothby further contends the $725,000 compensatory damages award should be doubled because the verdict form was ambiguous and the posttrial declarations of several jurors indicated the jurors intended to award $1,450,000.
A. Evidentiary Rulings
1. Expert Testimony by Boothby
To determine that a witness qualifies as an expert, Evidence Code section 801 requires the court to ascertain whether the person has sufficient special knowledge, skill, experience, training, or education on the subject of his or her testimony. “‘The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown.’ [Citation.]” (McCleery v. City of Bakersfield (1985) 170 Cal.App.3d 1059, 1066, quoting People v. Kelly (1976) 17 Cal.3d 24, 39.)
The trial court did not err by precluding Boothby from testifying as an expert witness on per square foot prices for condominium units in Lancaster and the real estate market or potential real estate market in Lancaster. The evidence showed that Boothby was an unemployed actor who had worked in a variety of odd jobs over the years before he and Parker embarked on the proposed development project in Lancaster. Boothby admitted that he had no experience in performing due diligence on the purchase of vacant land, no experience in developing raw land, no experience in commercial construction, and no experience in developing a condominium project of the size contemplated by the parties. The trial court did not abuse its discretion by finding Boothby unqualified to offer expert testimony on these subjects.
In this appeal, Boothby argues for the first time that he sought qualification to testify as an expert on the per square foot price of the subject project, rather than the price of condominium units generally in Lancaster, and that the trial court abused its discretion by finding him unqualified to do so. Boothby did not ask the trial court to determine his qualifications to opine as to the specific development project at issue; and that argument is arguably not cognizable on appeal. Boothby’s argument, even if cognizable on appeal, is not supported by the record. Boothby testified that he met with lenders and architects, and that he spent time “visiting” and “talking to” engineers, local suppliers and “other trades” in Lancaster and Palmdale, but he offered no details concerning the subjects of those meetings and discussions or what he learned from them. The trial court did not abuse its discretion by precluding Boothby from testifying as an expert witness.
2. WCCP’s Evidentiary Objections
The WCCP defendants contend the trial court erred by overruling their objections to Boothby’s testimony concerning a $3 million purchase offer for the property made by Pryor in May or June of 2003, and to Pryor’s testimony concerning a $1.6 million loan that he obtained in September 2004 after purchasing Parker’s interest in the property. The WCCP defendants further contend the trial court improperly relied on this evidence as the basis for denying their JNOV motion.
a. $3 Million Purchase Offer
WCCP contends the evidence concerning Pryor’s $3 million purchase offer was hearsay and inadmissible under Evidence Code sections 813 and 815. Boothby argues that WCCP failed to interpose a proper objection and therefore forfeited the right to challenge the admissibility of this evidence on appeal. The record concerning the challenged testimony consists of the following exchange:
“[BOOTHBY]:... the first firm offer, intent, was a gentleman called Dan Pryor of ACRES who I was referred to by Brad Gerszt of California Funding.
“[PLAINTIFF’S COUNSEL]: Did he make an offer on the property?
“[BOOTHBY]: We discussed in the region of 3 million.
“[WCCP’S COUNSEL]: Excuse me, Your Honor. That would be hearsay from Mr. Pryor.
“THE COURT: All right. First of all, it’s nonresponsive. The objection is sustained on relevance grounds. Ask your question again.
“[PLAINTIFF’S COUNSEL]: Did he convey an offer?
“[BOOTHBY]: We discussed an offer.
“[PLAINTIFF’S COUNSEL]: Did he convey a number to you?
“[BOOTHBY]: Yes.
“[PLAINTIFF’S COUNSEL]: What was the number he conveyed?
“[WCCP’S COUNSEL]: Objection.
“THE COURT: Objection is overruled.
“[BOOTHBY]: Three million.”
WCCP interposed a timely objection on hearsay grounds to Boothby’s testimony concerning Pryor’s $3 million purchase offer at the time the trial court ruled the testimony inadmissible on relevancy grounds. When Boothby’s counsel again sought to elicit testimony about Pryor’s purchase offer, WCCP again objected, but the trial court overruled the objection without allowing WCCP to state the basis for its objection. Given these circumstances, we conclude the issue was preserved for appellate review.
Boothby’s testimony concerning Pryor’s $3 million purchase offer was hearsay. “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) The word “statement” as used in the definition of “hearsay evidence” is defined in Evidence Code section 225 as “oral or written verbal expression” or “nonverbal conduct... intended... as a substitute for oral or written verbal expression.” (Evid. Code, § 225.) Boothby’s testimony concerning Pryor’s out of court statement was offered to prove that a $3 million offer to purchase the property had been made. That out of court statement does not come within any of the statutory exceptions to the hearsay rule (see Evid. Code, §§ 1220–1228.1), and was thus inadmissible. (Evid. Code, § 1200, subd. (b).)
Boothby maintains that Pryor’s $3 million purchase offer was not hearsay because “‘[i]n a contract action, the words used by the contracting parties are nonhearsay when offered to show essential elements of the contract -- i.e., that an offer was made, an acceptance communicated, etc. [Citations.]’” The instant action does not involve a breach of any contract by Pryor, and Boothby’s testimony concerning the $3 million purchase offer was not offered to establish the terms of any contract with Pryor. The statement was not offered for a nonhearsay purpose.
Pryor’s offer to purchase the property was also inadmissible under Evidence Code section 822. Evidence Code section 822 states that “[t]he price at which an offer or option to purchase or lease the property” is “inadmissible as evidence and shall not be taken into account as a basis for an opinion as to the value of property.” The trial court’s admission of Pryor’s $3 million purchase offer as evidence of the value of the property was an abuse of discretion.
Subdivision (a) of Evidence Code section 822 provides in relevant part: “(a) In an eminent domain or inverse condemnation proceeding,... the following matter is inadmissible as evidence and shall not be taken into account as a basis for an opinion as to the value of property: [¶]... [¶] (2) The price at which an offer or option to purchase or lease the property or property interest being valued or any other property was made,... except that an option, offer, or listing may be introduced by a party as an admission of another party to the proceeding.” Subdivision (b) of section 822 makes it applicable to noneminent domain proceedings: “(b) In an action other than an eminent domain or inverse condemnation proceeding, the matters listed in subdivision (a) [of section 822] are not admissible as evidence, and may not be taken into account as a basis for an opinion as to the value of property, except to the extent permitted under the rules of law otherwise applicable.”
b. $1.6 Million Loan
WCCP contends the trial court erred by admitting, over WCCP’s objection, the following testimony by Pryor concerning a $1.6 million construction loan he obtained after purchasing the property from Parker:
“[BOOTHBY’S COUNSEL]: Sir, isn’t it true that in September of 2004, you took out a $1.6 million loan on the property?
“[PRYOR]: Yeah. We had to carry a loan to take out to extend the time frame.
“Q: Okay. That had nothing to do with development of this property, isn’t that correct sir?
“A: Yes, it did.
“Q: What did it have to do with this property?
“A: Well, we had to actually go back in and redesign the entire project to meet the Title 24 requirements.
“Q: Okay. Was this a construction loan on this property only?
“[WCCP’s COUNSEL]: Objection.
“A: Yes.
“[WCCP’S COUNSEL]: Your Honor, it’s irrelevant at this point.
“THE COURT: Sustained. Move on.”
Before eliciting the foregoing testimony, Boothby’s attorney made an offer of proof, arguing that “taking $1.6 million out of the property... strips the value” of the property and “goes to damages.” WCCP’s attorney objected to this evidence as irrelevant, and the trial court overruled that objection, thereby permitting the inquiry quoted above.
The trial court abused its discretion by overruling WCCP’s initial objection to Pryor’s testimony, which was offered as evidence of the value of the property. The record shows that Pryor obtained the loan in September 2004, after Parker sold the property and its development rights to Pryor. Although Parker retained an equity participation interest in the development project, that interest was limited to a percentage of the sales of any condominium units actually built and sold, after reimbursing ACRES for its construction costs. There was no evidence that any condominium units were built or sold. Pryor’s testimony concerning the $1.6 million loan was therefore not relevant and should have been excluded.
B. Sufficiency of the Evidence
We cannot conclude that the trial court’s erroneous admission of evidence concerning the $3 million purchase offer and the $1.6 million loan did not result in a miscarriage of justice. After excluding the improperly admitted evidence, the record contains no evidence that would support a damages award in the amount of $725,000. No appraisal of the land was introduced, nor was there expert testimony concerning the value of the property or anticipated profits from the sale of the as yet unconstructed condominium units. The only other evidence of property value was Boothby’s testimony that while he and Parker were in escrow to purchase the property, an unidentified third party made a purchase offer that would have yielded a $250,000 profit to each of the partners, and the $800,000 Pryor actually paid to purchase the property from Parker in June 2004. Neither of these sums would support a $725,000 damages award to Boothby based on one-half of the net proceeds from the sale of the property.
WCCP also challenges the admission of this evidence on the grounds that it was inadmissible hearsay and barred by Evidence Code section 822. WCCP failed to raise any objection to this evidence in the trial court below, however, and therefore forfeited the right to do so in this appeal.
Although there is insufficient evidence to support a compensatory damages award in the amount of $725,000, substantial evidence supports a damages award of a lesser amount. There was evidence that Parker expended $750,000 to acquire the property and to prepare it for development and that Pryor paid him between $450,000 and $600,000. There was also evidence that Parker sold the property to Pryor for $800,000. Viewing the evidence in the light most favorable to the judgment, and mindful of judicial economy, there is evidence to support a finding that Parker realized a net gain of $650,000 on the sale of the property. Under the terms of his agreement with Parker, Boothby was entitled to one-half of the net proceeds from that sale, or $325,000. That amount alone is supported by the evidence. The remainder of the compensatory damages award is unsupported by the evidence and must be stricken.
Because there is substantial evidence to support an award of compensatory damages, the trial court did not err by denying the defendants’ motion for judgment notwithstanding the verdict. (Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1602-1603.) As discussed, the compensatory damages award must be reduced, however, from $725,000 to $325,000.
C. Claimed Ambiguity in the Verdict Form
Boothby contends the verdict form was ambiguous and that the verdict should be interpreted to award him $1,450,000 rather than $725,000 in compensatory damages. Boothby further contends the trial court erred by refusing to admit the declarations of three jurors regarding their intent to allocate damages between Parker and WCCP, as opposed to awarding a single joint and several damages award.
Whether a special verdict is ambiguous or incorrect is analyzed as a matter of law and is subject to de novo review. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092.) The order sustaining WCCP’s evidentiary objections to the juror declarations is reviewed for abuse of discretion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.)
The relevant portions of the special verdict form are Questions 5 and 17, which state as follows:
“Question No. 5: How much was Mark Boothby economically damaged, if at all, as a result of Frank Parker’s breach of the partnership agreement?
“Answer: $725,000.”
“Question No. 17: How much was Mark Boothby economically damaged, if at all, as a result of Olga Karasik’s negligence?
“Answer either: The same as our answer to Question No. 5 Yes (answer yes or no) or Answer: $_____.”
Boothby concedes that all parties, including him, intended a single joint and several compensatory damages award. The verdict is consistent with this intent. The jury found that Parker’s breach of contract caused Boothby economic damages in the amount of $725,000. The jury further found, in response to Question No. 17 of the special verdict form, that Karasik’s negligence caused damages in the “same” amount. The jury did not find, as Boothby contends, any separate, different, or proportional damages attributable to Karasik’s negligence. Question No. 17 directed the jury to insert a sum in the blank immediately following the question “[h]ow much was Mark Boothby economically damaged, if at all, as a result of Olga Karasik’s negligence?” if those damages were not “[t]he same” as those specified in response to Question No. 5. No such sum was provided. The verdict is not ambiguous. It shows that the jury found that Boothby sustained economic damages that totaled $725,000, not $1,450,000.
Boothby contends the trial court abused its discretion by sustaining WCCP’s evidentiary objections to the declarations of three jurors who attested to their intent to award total economic damages of $1,450,000. The declarations at issue all state in relevant part as follows:
“After we rendered our verdict and were dismissed, several members of the jury spoke with several of the lawyers outside of the courtroom regarding the trial. They informed us at that time the legal interpretation of our verdict regarding the $725,000 damages we awarded to Boothby from Parker and the $725,000 we awarded Boothby from Karasik might be considered as a single amount totaling $725,000. This was not any of the jurors’ understanding at the time of our deliberations. It was our intention, as we discussed openly in the jury room, for the total award to be $1,450,000, with 50% being assessed against each of the defendants.... [¶]... Another factor in the jury’s thinking was we unanimously felt that Ms. Karasik’s conduct had fallen below the normal ‘standard of care’ for an attorney, as defined for us by the expert witness Mr. Jacobson. Therefore, we felt she should be required to pay economic damages to Boothby independent of the damages we assessed against Parker.”
Evidence Code section 1150 prohibits the trial court’s consideration of the “mental processes” of jurors when considering a challenge to the verdict. (Evid. Code, § 1150, subd. (a); In re Hamilton (1999) 20 Cal.4th 273, 294.) The statute provides in relevant part: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent or dissent from the verdict or concerning the mental processes by which it was determined.” (Evid. Code, § 1150, subd. (a).) Posttrial solicitation and use of jurors’ statements concerning their conduct and deliberation which seek to explain the jurors’ mental processes is therefore improper. (Drust v. Drust (1980) 113 Cal.App.3d 1, 9.)
The language of the declarations plainly reflect the jurors’ mental processes, setting forth the jury’s “understanding,” “intention,” and “thinking.” The declarations fall squarely within the prohibition imposed by Evidence Code section 1150. (Evid. Code, § 1150; In re Hamilton, supra, 20 Cal.4th at p. 294.) Boothby’s argument that the declarations set forth the jurors’ “discussions” and “agreements” rather than their thought processes is unavailing. “[W]hen considering evidence regarding the jurors’ deliberations, a trial court must take great care not to overstep the boundaries set forth in Evidence Code section 1150. The statute may be violated not only by the admission of jurors’ testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations.” (People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.)
Boothby cites Krouse v. Graham (1977) 19 Cal.3d 59 (Krouse) and People v. Sutter (1982) 134 Cal.App.3d 806 (Sutter), as support for his argument that the juror declarations were admissible. The declarations admitted in Krouse and Sutter disclosed juror misconduct as the basis for challenging the verdict. (Krouse, supra, at p. 81; Sutter, supra, at pp. 818-819.) Evidence of juror misconduct is not barred by Evidence Code section 1150. (Krouse, at p. 81.) Boothby contends the declarations show jury misconduct because they reflect a failure to follow the court’s instruction not to apportion damages. No such instruction was given by the trial court, and the declarations disclose no evidence of juror misconduct. Krouse and Sutter are therefore inapposite. The trial court did not abuse its discretion by excluding the juror declarations.
To the extent Boothby’s challenge to the verdict is premised on juror misconduct, he cannot rely on the juror declarations as the basis for doubling the compensatory damages award to be consistent with the jury’s intent.
D. Alleged Instructional Error
Boothby claims he is entitled to a new trial on the issue of damages because the trial court erred by refusing to modify CACI No. 3903N to include the following language:
The following instruction was given to the jury: “To recover damages for lost profits, Mark Boothby must prove it is reasonably certain he would have earned profits but for the responsible defendants’ conduct. [¶] To decide the amount of damages for lost profits, you must determine the gross amount Mark Boothby would have received but for the responsible defendants’ conduct Mark Boothby would have had if the responsible defendants’ conduct had not occurred. [¶] The amount of the lost profits need not be calculated with mathematical precision, but there must be a reasonable basis for computing the loss.”
“As long as you find that the plaintiff was damaged, uncertainties as to the amount of lost profits are not fatal to his claim. You may consider if the defendants’ conduct created these uncertainties and, if so, you may resolve such uncertainties against the defendants who are responsible for them.”
The standard of review for alleged instructional errors is the prejudicial error standard. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1459-1460.) “Under this standard, the judgment must be affirmed unless the appellant can show an error that was so prejudicial a miscarriage of justice occurred. [Citation.]” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 872.) Boothby has neither alleged nor established prejudicial error as a result of the trial court’s refusal to give the modified instruction.
A court is not required to give every instruction requested, even if it may state a correct and pertinent principle of law; all that is required is that the jury be fully and fairly instructed on the issues presented. (Risley v. Lenwell (1954) 129 Cal.App.2d 608, 655.) The substance of Boothby’s requested language was provided to the jury in other instructions. The jury was instructed that “Mark Boothby does not have to prove the exact amount of damages that will provide reasonable compensation for the harm. You must not speculate or guess in awarding damages although you may consider if Frank Parker’s behavior caused some degree of uncertainty in the calculation of damages.” The jury was also instructed: “Mark Boothby does not have to prove the exact amount of damages that will provide reasonable compensation for the harm” and “[t]he amount of lost profits need not be calculated with mathematical precision.” The trial court did not err by refusing Boothby’s requested instruction.
III. Punitive Damages
The Parker defendants challenge the punitive damages award on the grounds that there was insufficient evidence of actual economic damages to support an award of punitive damages; that Boothby failed to produce evidence of Parker’s financial condition to sustain a punitive damages award; and that the $350,000 award was excessive. We conclude that there was sufficient evidence of actual damages and of Parker’s financial condition to support a punitive damages award.
Boothby contends he is entitled to a partial new trial on punitive damages as against the WCCP defendants because the trial court erroneously precluded him from presenting evidence that WCCP performed legal work for Pryor after March 2004. The trial court’s exclusion of this evidence was not an abuse of discretion.
A. Substantial Evidence of Actual Damages Supports the Punitive Damages Award
Actual damages are a necessary predicate for an award of punitive damages. (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 147.) That requirement was met here. Actual economic damages were awarded, and as discussed, substantial evidence supports such an award.
B. Substantial Evidence of Parker’s Ability to Pay Punitive Damages
The Parker defendants contend the punitive damages award should be reversed because there was insufficient evidence of Parker’s financial condition. A punitive damages award requires “meaningful evidence” of the defendant’s financial condition or ability to pay. (Adams v. Murakami (1991) 54 Cal.3d 105, 109.) “[T]here should be some evidence of the defendant’s actual wealth. Normally, evidence of liabilities should accompany evidence of assets, and evidence of expenses should accompany evidence of income.” (Baxter v. Peterson (2007) 150 Cal.App.4th 673, 679-680.) An award of punitive damages is reviewed for substantial evidence. (Ibid.)
The record contains substantial evidence of Parker’s financial condition. There was evidence that Parker sold the property to Pryor for a net gain of $650,000. There was evidence that Parker’s assets included $300,000 to $500,000 in bank accounts, $225,000 in stocks, $150,000 in retirement accounts, and a home that was worth between $600,000 and $700,000. His liabilities included a $95,000 loan encumbering his home, $4,000 to $6,000 in credit card debt, and annual college tuition payments for his daughter. There was substantial evidence that Parker had the ability to pay a $350,000 punitive damages award.
C. Excessiveness of Award
The purpose of a punitive damages award is to punish wrongdoers and thereby deter the commission of wrongful acts. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928, fn. 13.) “[A] reduction in compensatory damages does not mandate a corresponding reduction in punitive damages. There is no requirement that the original ratio between compensatory and punitive damages as measured by the jury remain. [Citation.]” (McGee v. Tucoemes Federal Credit Union (2007) 153 Cal.App.4th 1351, 1362.)
In this case, a relatively modest amount of punitive damages was awarded: $350,000 in relation to the $725,000 in compensatory damages. Our reduction of the compensatory damages to $325,000 does not create disproportionality between punitive and compensatory damages or require reconsideration of the punitive damages awarded. That award is accordingly affirmed.
D. Alleged Evidentiary Error
Boothby contends the trial court committed prejudicial error by granting WCCP’s motion in limine to exclude evidence that Karasik represented Pryor in June 2004 in connection with the restructuring of the development agreement with Parker. He maintains this evidence was necessary to support his claim for punitive damages as against the WCCP defendants, that the exclusion of this evidence was prejudicial, and that he is entitled to a partial new trial on the issue. We review the trial court’s decision to exclude evidence under Evidence Code section 352 under the abuse of discretion standard. (Austin B. v. Escondido Union School Dist., supra, 149 Cal.App.4th at p. 885.)
The record discloses no abuse of discretion by the trial court. Boothby’s claims against the WCCP defendants concerned Karasik’s failure to protect his interests vis-à-vis Parker, and his exclusion, in early February 2004, from the development agreement between Parker and Pryor. Karasik’s actions several months after these events occurred and after WCCP terminated its representation of Boothby and Parker were not relevant to those claims.
Even assuming the evidence was improperly excluded, no miscarriage of justice occurred. Boothby’s offer of proof with regard to the excluded evidence concerned WCCP’s liability for professional negligence and breach of fiduciary duty, and the jury found the WCCP defendants liable and awarded Boothby compensatory damages.
The trial court did not abuse its discretion by excluding evidence of Karasik’s subsequent representation of Parker.
IV. Emotional Distress Damages
Boothby challenges the sufficiency of the evidence to support the jury’s determination that he sustained no emotional distress damages as the result of defendants’ breach of fiduciary duties. The amount of damages to which a plaintiff is entitled is a question of fact, first committed to the discretion of the jury and next to the discretion of the trial court on a motion for new trial. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 507.) An appellate court has a limited role in reviewing the fact question of the amount of damages. “Unlike the jury and the trial judge, we did not see or hear the witnesses and cannot resolve evidentiary conflicts regarding the severity of injuries or their cause. [Citation.]” (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 321.)
Substantial evidence supports the jury’s determination that Boothby did not sustain emotional distress damages as the result of defendants’ conduct. There was evidence that Boothby suffered from psychiatric and physical maladies that existed before, during, and after his dealings with Parker and Karasik, including bipolar disorder and depression. There was also evidence that these conditions were exacerbated by a history of alcohol and substance abuse. He also experienced other stress inducing changes, such as a divorce from his wife after only one week of marriage, while the transaction with Parker was unfolding. Defendants’ psychiatric expert testified that he was unable to find any psychiatric injury or illness by Boothby attributable to Parker or Karasik.
DISPOSITION
The compensatory damages award is vacated and the judgment is modified to reduce the amount of compensatory damages from $725,000 to $325,000. As modified, the judgment is affirmed. The parties shall bear their own costs incurred on appeal.
We concur: BOREN, P. J., ASHMANN-GERST, J.