Opinion
G053750
06-28-2018
HOLLINS LAW, Plaintiff, Cross-defendant and Respondent, v. GEORGE YAO et al., Defendants, Cross-complainants and Appellants.
Woolf & Nachimson and Chaim Jacob Woolf; Law Office of Robert Gentino and Robert E. Gentino for Defendants, Cross-complainants and Appellants. Hollins Law and Kathleen Mary Kushi Carter; Haight Brown & Bonesteel, Bruce Cleeland, Vangi M. Johnson and Jennifer Price Taton for Plaintiff, Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00724216) OPINION Appeal from a judgment of the Superior Court of Orange County, Peter J. Wilson, Judge. Affirmed. Woolf & Nachimson and Chaim Jacob Woolf; Law Office of Robert Gentino and Robert E. Gentino for Defendants, Cross-complainants and Appellants. Hollins Law and Kathleen Mary Kushi Carter; Haight Brown & Bonesteel, Bruce Cleeland, Vangi M. Johnson and Jennifer Price Taton for Plaintiff, Cross-defendant and Respondent.
* * *
This is a posttrial appeal from a judgment in favor of plaintiff and respondent, Hollins Law (Hollins) in a dispute over attorney fees. Hollins was awarded $91,368.53 against defendants and appellants, 4528 Colbath, LLC (Colbath) and George Yao (collectively appellants). Appellants recovered nothing on their cross-complaint. Appellants' primary argument on appeal is that the court wrongfully granted nonsuit on its cross-claim for breach of fiduciary duty for several procedural and substantive reasons. We conclude that nonsuit was properly granted and therefore affirm the judgment.
I
FACTS
A. The Underlying Case
In 2008, Hollins was retained by appellants' insurance carrier to defend against claims for an illegal condominium conversion, wrongful eviction, and negligence filed by 15 residents of the subject building. Kathleen Carter was the managing partner of Hollins, and the record reflects she has substantial trial experience. Tamara Heathcote was a junior partner at Hollins who worked on the underlying matter.
Following a nine-week trial in 2010, the jury returned a verdict in favor of the residents and against appellants for $130,000. The trial court added $60,000 in statutory penalties and awarded the residents $900,000 in attorney fees.
On appeal, the court affirmed a small part of the trial court's judgment but essentially reversed for a new trial, for reasons we need not discuss here. (See Ahn v. Yao (July 18, 2012, B223489) [nonpub. opn.].) Appellants were awarded their costs, in an amount to be determined by the trial court. The trial court later determined the amount of costs was approximately $138,000.
Prior to the retrial, Yao retained Hollins directly to represent himself and Colbath. Carter testified that she agreed to represent appellants at a reduced blended rate of $250 for both her time and the time of junior partners, associates, and paralegals. The parties entered into this agreement in January 2013. According to Carter's testimony, the agreement also provided that appellants would pay, in addition to fees, all costs incurred, including travel and expert fees. The agreement itself, unfortunately, does not appear to be part of the record on appeal.
The record is incomplete in numerous respects. All of the e-mails and most other documents referenced here are based on testimony about those e-mails, not the documents themselves, which were not transmitted to us.
Appellants claim that Hollins presented them with a "budget" for the retrial. This is apparently based on an e-mail (which is not itself in the record), in which Yao asked Heathcote how much it would cost to go to trial. According to Heathcote's trial testimony, she replied: "'With all 15 plaintiffs in this case, we estimate 15 days of trial with both [Carter] and me attending the trial and approximately 10 days for both of us to prepare just the trial portion. . . . The total estimate for fees and costs to get to a verdict with 15 plaintiffs is 150- to $175,000.'" There were apparently settlement discussions going on with 10 of the 15 plaintiffs, so the e-mail went on to state, according to the trial transcript: "'If we agree to settle and it's five remaining plaintiffs, we estimate the trial will take 7 days, and the total fees and costs to get to a verdict will be between 110- and $130,000.'" Heathcote testified this was an "estimate." Carter denied a budget was ever prepared for appellants, testifying that the retainer agreement did not require it, and Hollins only created a budget if it was required by the client.
In February 2013, 10 of the residents settled for a waiver of the approximately $138,000 cost bill (which were funds owed to the insurance carrier, not appellants). Given the instructions of the appellate court in the first appeal, this left limited issues to be tried and five of the original residents as plaintiffs. These five residents had recovered approximately $22,000 in the first trial.
According to Carter's testimony, between February and April, when the jury was empaneled, she and Heathcote appeared in court to argue jury instructions and approximately 22 motions in limine, conduct legal research requested by the court, and participate in meet and confer conferences with opposing counsel. They also had to rework some documents to account for the settlement of some of the plaintiffs. Yao was kept informed.
Carter testified that the reason they had prepared so many motions in limine was to attempt to exclude "significant harmful evidence" that had been introduced during the first trial. Carter also sought to exclude evidence that Yao had a criminal record and either a suspended or revoked real estate license, and evidence related to his personal life. All the motions in limine they brought, Carter testified, were necessary to the conduct of the trial. When Carter lost a motion in limine related to the condominium conversion claim, Yao instructed her to seek a writ from the Court of Appeal on the issue. He also suggested bringing a procedurally improper "motion to dismiss" on another issue, and he "was very involved" in what he thought the jury instructions should say. Hollins billed $224,000 in fees and costs from retention until the beginning of trial.
The evidentiary issues were raised in appellants' appeal after the first trial, but the court never reached the evidentiary claims, reversing on other grounds.
The jury was empaneled on April 2, and the retrial began. Yao was aware that both Carter and Heathcote were staying at a hotel in downtown Los Angeles to avoid travel time to and from Orange County, where their offices were located.
Following the second trial, the jury found in favor of the five plaintiffs and awarded $59,425.17. Carter considered this a successful outcome because she felt the appellants had exposure for wrongful eviction, and more importantly, for attorney fees that exceeded $1 million by that point. The appellants would also be able to offset any judgment against the $138,000 in costs from the first appeal. The trial cost an additional $106,000 in fees.
After the second trial, Yao wanted to file posttrial motions and appeal the verdict. Carter attempted to explain the procedural context to Yao, including steps that had to be taken before an appeal. She also asked Yao about mediation, and he replied to her that there would be no purpose in attempting to settle the case. Another $60,000 was spent on postverdict work. Ultimately, the court denied residents costs and attorney fees, concluding they were not the prevailing party. (Farkas et al. v. 4528 Colbath LLC et al. (Sept. 9, 2014, B250440) [nonpub. opn.].) Appellants paid Hollins a total of $393,000 toward their bills, but they had outstanding bills of $75,665.19. In February 2014, Hollins terminated its relationship with appellants for failure to pay their bills. B. The Instant Case
In May 2014, Hollins filed a complaint for open book account, account stated, and breach of contract. Although the document is not in the record, both parties agree a cross-complaint was filed. According to Hollins, the cross-complaint was for breach of contract, breach of fiduciary duty, and professional negligence.
Prior to trial, appellants dropped their professional negligence claim, leaving their claims for breach of fiduciary duty and breach of contract. Hollins filed seven motions in limine. A discussion was held between the court and counsel. The court was uncertain as to whether the fiduciary duty claim could exist separately from the professional negligence claim without being subsumed by the breach of contract allegations. Specifically, the court thought attorney overbilling, the essence of appellants' claim, did not fall into the small category of cases where a plaintiff could seek damages for both a tort and a breach of contract. The court noted, "I'm not suggesting you're wrong. I'm just not yet persuaded you're right." The court stated counsel would be given a chance to address the issue further. The court later clarified that it was ruling on the admissibility of evidence, and not on any kind of dispositive motion. All of Hollins' other motions in limine were granted.
The next hearing was the following day. Before the next hearing, both parties apparently filed briefs on the issue of whether appellants could proceed with their breach of fiduciary claim; neither brief, unfortunately, is in the record. The court stated it was tentatively persuaded that a separate claim for breach of fiduciary duty was appropriate, although if successful, appellants would ultimately have to elect a remedy. Hollins' counsel asked for an offer of proof based on appellants' contention that the breach of fiduciary duty was essentially overbilling and over-litigating the underlying matter. Counsel pointed out that appellants had no expert witness to support their claim. Appellants characterize this as "rais[ing] the issue of a non-suit based upon a lack of expert witnesses," but this is inaccurate. The word "nonsuit" was not mentioned. Hollins' counsel asked for an offer of proof with regard to what appellants intended to prove with respect to the breach of fiduciary duty claim. Appellants further refer to this as "the Trial Court's first sua sponte motion," which is just flatly wrong based on any reasonable review of the record. The trial court was ruling on Hollins' motions in limine, and nothing more.
Appellants' counsel responded by stating the jury instruction indicated they did not need an expert. Ultimately, the court allowed the theory to proceed and denied the relevant motion in limine, but noted that "what the evidence show[s] is an entirely different matter[], and the parties can make such objections as may be appropriate."
At the close of testimony, Hollins' counsel stated: "Initially, we move pursuant to [Code of Civil Procedure section] 581(c) on a nonsuit with respect to Mr. George Yao. The only testimony is that the payments were made by the company Colbath, LLC. So Mr. Yao has no damages suffered arising from any claim identified. [¶] Second, we'd like to file with the court a brief entitled 'Uncontradicted Testimony of Expert Witnesses on the Standard of Care of a Professional as Conclusively Binding upon a Trier of Fact.' [¶] The only testimony that's been offered relative to standard of care [on the breach of fiduciary claim] was by [Hollins]. And that was that the law firm met the standard of care, and all expenses were reasonable and necessary when incurred. Therefore, under the authorities cited in this rather short brief, I believe that the trier of fact is bound by that testimony. . . ."
All further undesignated statutory code references are to the Code of Civil Procedure.
The court said it would "take them in that order." The court asked for a response to the argument regarding Yao. After hearing argument from appellants' counsel, the court stated: "I cannot help on this record but agree with [Hollins] that [appellants] have failed to introduce into evidence any evidence of damages suffered by Mr. Yao in his personal capacity. . . . [¶] Under those circumstances, the motion for nonsuit at this stage of the trial in favor of [Hollins] is granted as it relates to the cross-complaint by Mr. Yao in his personal capacity."
The court then moved on to Hollins' second point, the uncontradicted testimony regarding the standard of care. Counsel for appellants was given the opportunity to read the brief over a break. When the court asked for counsel's position upon resuming, counsel argued that an expert was not required to prove breach of fiduciary duty and that overbilling is within the purview of a typical juror's understanding. Hollins' key point was that standard of care was a key issue in the case, and when uncontradicted testimony was offered by an expert, it was conclusive. Argument continued from both sides. The court stated: "I cannot make a determination on this question without . . . saying . . . here's who I think has the better argument as opposed to there is no evidence. And I don't want to parse the evidence because neither of you has gotten to closing arguments yet. I'm not going to push the point of view in any direction." The court then denied the motion. Immediately thereafter, Hollins moved for a directed verdict on its own breach of contract claim. The court took that motion under submission.
In a discussion the same day about jury instructions, in the context of damages, the court raised the question of what damages the cross-complaint was seeking based on the evidence. Counsel gave what can most charitably be characterized as a somewhat unclear answer. The court noted it had taken Hollins's motion for a directed verdict under submission, and stated: "I caution you to think about this issue because at the end of your closing argument, I may, on the court's own motion because it's now under submission, reconsider that issue. At the moment I . . . really do not have in mind what it is based on the state of the evidence you expect to tell the jury are your damages for either [breach of contract or breach of fiduciary duty]. I'm not aware of any evidence that Mr. Yao paid [$393,000], but the real value of the services was [$353,000], for example. [I] don't know how the jury quantifies if it's going to say he overpaid and gets money back on the one hand - there's no evidence to support the argument or particularly an amount. And with respect to he shouldn't have to pay the extra [$]75,000, that's no longer a breach of contract claim. That's just a - an affirmative defense." The court advised counsel it was raising this issue now to allow time to consider it, and said the same problem existed in both of the claims in the cross-complaint.
While discussing an instruction regarding breach of fiduciary duty, again the issue of damages came up. "What evidence is there of any detriment caused . . . what the corporation paid vis-à-vis what it should have paid?" Appellants' counsel responded that the "budget" was larger than anticipated, among other things, and that the amount of money spent was not reasonable. Hollins' counsel interjected that "unreasonable" was not what breach of fiduciary duty was; the fees would have to be unconscionable. Appellants' counsel responded that the fees were unconscionable as well. The court, needing to adjourn because of the late hour, reminded appellants' counsel to consider these issues overnight. "What is it that [appellants are] going to say constitutes the harm is the open question."
Overnight, Hollins filed an additional short brief on the issue of an attorney's duties, whether the attorney was sued in tort or contract, being based on the same standard of care. The court picked up the issue again it had raised the previous day with appellants' counsel: "With respect to the breach of fiduciary duty claim, what evidence is there upon which the jury can award damages?" Appellants' counsel argued that "the damages still occur through the theory of disgorgement." When asked, again, what damages, counsel responded he was referring to overpayment of fees and unconscionable fees. Again, the court inquired what evidence this could be based on. Counsel answered "based upon the idea that there is a budget . . . that the cost of the trial was exceeded . . . by 400 percent." Counsel also argued that there was evidence that Hollins had overvalued the case as well, and did excessive work, such as 22 motions in limine, and had spent too much time on jury instructions. The court pointed out that there was not anything identified in the evidence as unnecessary, only a general assertion that too much work had been done.
The court reminded counsel that yesterday it had taken the motion for nonsuit under submission, but decided it was inherently prejudicial to appellants to rule on the motion after closing argument, when what had taken place would be evident to the jury. Again, the court asked appellants' counsel to make an evidentiary argument to support the claim for damages for breach of fiduciary duty. Counsel began to discuss disgorgement and restitution, but the court again asked about the evidence that supported such a theory. Counsel responded with a discussion of excessive work and attorney time, overvaluing of the underlying case, the alleged budget, and similar issues. The court asked how these issues could translate that into an ascertainable sum of damages. Counsel said it was very "simple math," based on the value of the claim, the amount Hollins had spent, and the amount appellants had already paid.
The court noted it had already granted Hollins a directed verdict on the cross-complaint as to Yao. It then stated that with respect to Colbath, Hollins "seeks nonsuit on both claims. I'm not granting nonsuit on the breach of contract claim because the breach of contract claim can go forward even if the jury awards only a dollar in nominal damages if it finds that a breach of contract, in fact, occurred. [¶] With respect to the breach of fiduciary claim . . . the argument that [appellants' counsel] is espousing this morning . . . strongly indicates to the court that the court was incorrect in its analysis that this was a theory that could be presented without expert testimony. [¶] The concepts of what this case should cost after remand, the fee charged in relation to the value of the services performed, novelty and difficulty of the questions involved, all of which [counsel] clearly intends to argue, none of these are things which the jury could be expected to understand based simply on a lay person's description about whether he thought lawyers could work for less or do less
The court concluded it had erred with respect to the issue of expert testimony, but said it would not change its rulings because "I conclude for a different reason that at this time nonsuit in favor of [Hollins] is . . . proper on the breach of fiduciary duty claim. And that is because there is no evidence before the jury of damage caused by the alleged breach of fiduciary duty." The court continued: "Under the circumstances, at this time the court grants the request for nonsuit by [Hollins] on the breach of fiduciary duty claim against [Colbath] . . . on the basis that [Colbath] failed to establish a necessary element of its cause of action being that it had suffered damages." That left breach of contract claims on each side, with all other claims effectively dismissed.
At the close of trial, it took the jury just over one hour to return a verdict in favor of Hollins for $91,368.53. Appellants took nothing on their cross-complaint. Further costs were later awarded in the amount of $10,353.99 to Hollins. Appellants now appeal the court's decision to grant nonsuit on Colbath's cross-claim for breach of fiduciary duty. Although Yao is listed as a party to this appeal, appellants do not argue that nonsuit was wrongfully granted as to Yao individually.
II
DISCUSSION
A. Governing Law Regarding Nonsuits
Nonsuit is a statutory device under which a defendant may move for judgment in its favor during trial. A motion for nonsuit may be brought after the plaintiff has completed its opening statement or after the presentation of plaintiff's evidence in a jury trial. (§ 581c.) A defendant is only entitled to a nonsuit if the trial court determines the evidence presented by plaintiff (or cross-plaintiff) is insufficient to permit a jury to find in his or her favor as a matter of law. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) "A trial court may grant a nonsuit only when . . . it determines there is no substantial evidence to support a judgment in the plaintiff's favor. [Citations.]" (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 28.) "In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded." (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118.) A plaintiff seeking to overcome judgment of nonsuit, however, cannot prevail unless he or she "can demonstrate substantial evidence in record to support each claim asserted," and "[m]ere conjecture or nonsensical interpretations of evidence are not sufficient." (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1580.) "[W]hile the court may infer facts from the evidence, those inferences must be logical and reasonable." (Ibid.)
On appeal, "[w]e independently review the ruling on a motion for nonsuit, guided by the same rules that govern the trial court. [Citations.]" (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 639.) B. Propriety of Granting the Nonsuit
Appellants claim that the court improperly granted the nonsuit on the breach of fiduciary claim sua sponte, but we cannot agree the court did so. Hollins argues that they sought nonsuit on four separate occasions, and surprisingly, appellants concede this point in their reply brief. We therefore need not consider whether Hollins's actions of filing its two short briefs constituted a motion for nonsuit; appellants concede they should be treated as such. One of those briefs addressed the issue of the conclusive effect of an expert's testimony on the breach of fiduciary duty claim; it argued that without testimony by a witness for appellants to create a factual dispute in the record, there was no breach and therefore no damages. While the trial court initially disagreed, this is the point on which it reversed itself and granted the motion for nonsuit. We disagree, therefore, that the court acted sua sponte.
In their reply brief, appellants attempt to make a point about the timing of the motions. "While Respondent is correct that it attempted on four different occasions to raise the issue of nonsuit, Respondent fails to mention the date it began its nonsuit motions. In fact, reviewing the record that Respondent cites to reveals that its first attempt at nonsuit occurred on March 21, 2016. However, March 21, 2016 is a week after March 14, 2016, the date the trial court began its discussions on how it found Appellants' breach of fiduciary claim problematic and forced the parties to brief the issue. As discussions of the trial court's March 14, 2016 actions were clearly set forth in Appellants brief, it is striking that Respondent selectively fails to mention the trial court's actions on March 14, 2016 in its Opposition papers. It therefore follows that Respondent's argument that the trial court did not sua sponte invite or make the initial nonsuit motions is factually incorrect." (Original record references omitted.)
We fail to see appellants' point here. The motions for nonsuit were made, as appellants concede. The record is the record. What discussions Hollins mentioned or did not mention in its brief are not pertinent.
Further, the court explicitly stated it was granting the motion "for nonsuit by [Hollins] on the breach of fiduciary duty claim against [Colbath] on the basis that [Colbath] failed to establish a necessary element of its cause of action being that it had suffered damages." Appellants' counsel was present, and heard the court issue this ruling. Counsel did not at any point object that there had not been a motion for nonsuit; that the grounds for the motion were unclear; or that the court was acting sua sponte. If appellants sought a new trial on this basis, there is no evidence of it in the record.
Appellants also argue trial courts are discouraged from "inviting" a motion for nonsuit. Given that appellants concede that Hollins sought nonsuit on four separate occasions, it appears that invitations were unnecessary. The authorities appellants cite, moreover, do not stand for the proposition that inviting a motion for nonsuit is automatically reversible error. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 748-749; Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750.)
Indeed, relevant authority states that procedural irregularities in a motion for nonsuit are not reversible absent a showing of prejudice. In the case appellants cite, Atkinson v. Elk Corp., supra, 109 Cal.App.4th at pages 748-749, the Court of Appeal concluded the trial court granted nonsuit on its own motion, and characterized that as "irregular." The court held that it would not "reverse for this irregular procedure unless we find that [the plaintiff] was prejudiced." (Id. at p. 749.)
Other cases have reached similar conclusions. "Plaintiff points out that the trial court failed to comply with standard procedures governing nonsuit motions (see . . . § 581c). Although the trial court's sua sponte order was unusual, no basis for reversal is shown. First, it is clear the trial court was acting to fulfill its judicial duty to ensure the jury was properly instructed on the law applicable to the case. Once the trial court concluded the disability access statutes were inapplicable in the context of this case, and hence claims based thereon could not as a matter of law go to the jury, it promptly informed the parties of its decision. Second, plaintiff made no objection below on grounds of procedural error or unfairness, and it is apparent the parties understood this was a legal issue that had to be resolved in the case. Third, since the instant appeal requires us to resolve the same legal issues as the trial court faced, and we agree that no cause of action existed under the statutes in question, it would be an idle act for us to reverse the case on procedural grounds simply to have the trial court enter a dismissal. (See [Civ. Code,] § 3532.)" (Coronado v. Cobblestone Village Community Rentals, LLP (2008) 163 Cal.App.4th 831, 838, fn. 6, overruled on other grounds by Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 678.)
Indeed, in contexts outside sua sponte motions, courts have held that procedural irregularities in a nonsuit motion are not sufficient grounds for reversal; the appellant must establish the motion was improperly granted on its merits. "It is nevertheless not reversible error to grant [a motion for nonsuit] prematurely if the motion is otherwise well-taken." (Michel v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 760, fn. 4; see also Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 114.)
Accordingly, we reject appellants' argument that the judgment must be reversed for this reason. Even if we concluded the trial court had acted sua sponte, which we do not, automatic reversal would be improper. C. Breach of Fiduciary Duty Without Expert Testimony
Appellants next argue that even if the motion for nonsuit is not reversible on procedural grounds, it was improperly granted on the merits. They argue we should only consider the issue of whether an expert was necessary on its breach of fiduciary duty claim, but we disagree. The nonsuit was granted specifically because appellants could not establish Colbath was damaged by any breach of fiduciary duty. Part of the problem was, indeed, that it had not provided an expert on this issue, but it was not the only problem. Appellants seem to think this means they get to re-try their case without further ado, but they are simply mistaken. The issue of whether, in theory, they could have tried this case without an expert is not the point. The point is that they failed to establish recoverable damages. D. Damages
Appellants next claim the judgment must be reversed because the trial court required them to "meet a higher burden" than the law required. Appellants selectively quote from the trial court to support this contention, but it is plainly wrong. Appellants quote the court as saying: "'I'm looking at the elements of a breach of fiduciary duty claim. And in its most simple form, as your own pleading sets up, the cross-complaint must establish the damages caused by the tortious breach. [¶] So this is your chan[ce] to tell me what evidence there is to support a claim for damages for . . . [t]he breach of fiduciary duty.'" Appellants claim this proves the court was demanding their damages be "completely concrete in nature." This argument is poorly taken.
As the court repeatedly asked of appellants' counsel, it was looking for counsel to enunciate "[w]hat damages do you believe the evidence has proven?" Counsel kept repeating its claims that Hollins had overvalued the case and spent too much. The court clarified: "With respect to all of the things that you have just said, let's take the most recent statements, the concept of what [the underlying] case should cost after remand, the fee in relation to the value of the services, the novelty and difficulty of the questions involved. How does any of that translate, based on the evidence, into the jury's ability to conclude that an ascertainable sum in damages were caused?" Counsel responded that because Hollins had spent more than the case was worth (under appellants' theory) that it did not make sense to spend what Hollins had spent. The court found this unpersuasive.
"The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach. [Citation.]" (Mosier v. Southern Cal. Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1044.) The court was simply holding appellants to this standard to identify some - indeed, any - proximately caused damages. Because appellants failed to do so, we reject this argument.
We also reject appellants' claim on the merits that it had presented substantial evidence to avoid nonsuit. Appellants presented one witness with regard to damages - Yao. He testified that he believed Hollins "estimate," as provided by Heathcote in the e-mail to him, was a "budget," and that Hollins' bill exceeded this amount. He opined that based on his view of the value of the underlying case ($10,000 to $20,000), the amount billed and work performed were excessive. He also testified that the retainer agreement was negotiated, including the blended rate of $250, he knew that the trial would be attended by two attorneys, and that he, as the client, was responsible for all costs, including expert fees and travel.
Appellants now claim, but do not cite to any of Yao's testimony, that they were not timely billed and did not have notice that the estimate or "budget" had been exceeded.
There was no substantial evidence that anything that Hollins did with respect to the underlying case was unconscionable or excessive. There was undisputed testimony that Yao knew what was going on at all times during the trial, that he knew that two attorneys would be present, and further, Yao instructed Hollins to take specific steps that increased costs, such as filing a writ. The only testimony presented on the reasonableness of Hollins' actions was from Carter, who testified that Hollins only charged appellants with reasonable and necessary fees within the legal standard of care. Even given the exceedingly favorable standard of review in this case, appellants have not pointed to anything except Yao's subjective, lay opinion to demonstrate that Hollins did anything wrong at all, much less breach its fiduciary duty. Accordingly, we find no error in the trial court's decision to grant the motion for nonsuit.
Next, in what can only be described as a "Hail Mary pass," appellants claim they could have been awarded nominal damages. Appellants cite only cases where the plaintiffs sought a nominal damage award to support a claim for punitive damages. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 417; Werschkull v. United Cal. Bank (1978) 85 Cal.App.3d 981.) There was never a mention of the possibility of punitive damages in this case. Appellants cite no case where a nonsuit was reversed on this ground, nor do they demonstrate that the possibility of a nominal damage award, without punitive damages, satisfies the constitutional requirements for reversible error in California. E. Disgorgement as Alternate Remedy
The continued viability of these cases on this point is questionable, given that both were decided before the United States Supreme Court sharply curtailed the potential amount of punitive damage awards in most cases in State Farm Mutual Automobile Insurance Company v. Campbell (2003) 538 U.S. 408. --------
Finally, appellants cite to Slovensky v. Friedman (2006) 142 Cal.App.3d 1518, 1535, in support of their argument that they should have been allowed to argue disgorgement to the jury. They argue this would have been appropriate because this was a case where damages were "difficult to assess." Appellants, however, ignore the fact that their cited authority states that "where an attorney's misrepresentation or concealment has caused the client no damage, disgorgement of fees is not warranted." (Id. at p. 1536.) Appellants attempt to gloss over the fact that they did not present substantial evidence of any damages whatsoever. Yao's subjective belief of wrongdoing did not provide the necessary substantial evidence to proceed with a breach of fiduciary duty claim on any theory.
Appellants had multiple opportunities, over multiple days, and indeed during the entire course of the trial, to marshal and present evidence to support their claims for breach of fiduciary duty. They presented nothing more than subjective lay opinion, unsupported by any specifics. Nonsuit was properly granted.
III
DISPOSITION
The judgment is affirmed. Hollins is entitled to its costs on appeal.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.