Opinion
2d Civil No. B201820
4-15-2008
SPARTAN FUNDING GROUP et al., Plaintiffs and Respondents, v. LARRY GURNEY, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on March 17, 2008, be modified as follows:
1. The third full paragraph commencing on page 10 and ending on page 11 is deleted and the following paragraph is inserted in its place:
The apparent conflict was addressed somewhat during the deposition testimony of Bleau, Fox attorney Fong. When appellants counsel (Howard Jaffe) asked whether it ever occurred to her before the 2002 trial that there might have been some conflict "between the representation of [Larry] and Darrell, on the one hand, and [appellant], on the other hand," Fong responded: "They were aligned in interest to the extent that they wanted to defeat the claim. If youre asking with respect to [the fact that] neither [Larry] nor Darrell . . . authorized [appellant] to sign the [settlement agreements]—yes, I suppose it did occur to me that there was a conflict with the position." When Jaffe asked whether she discussed that with anyone else, Fongs counsel asked whether the question referred to anyone "[a]side from the clients." Upon determining that Jaffes inquiry applied to discussions with clients as well as others, Fongs counsel objected that discussions with the clients were privileged. Fong then testified that she had discussed it with Bleau. The record does not establish that Bleau, Fox failed to comply with its obligation to address a recognized conflict with its clients.
2. On page 11, in the first full paragraph, the last sentence is deleted, and the following sentences are inserted:
Moreover, the record in the instant case indicates that the parties waived notice. Heidary does not support appellants claim that the judgment resulted from extrinsic fraud and or mistake, or that it was constitutionally or legally void.
3. On page 13, the final paragraph of the opinion is deleted and the following paragraph is inserted in its place:
We reverse the order denying the motion to vacate the judgment to the extent that the judgment exceeds $200,000. The trial court shall reduce the damages to $200,000 and enter the modified judgment unless, within 30 days after issuance of our remittitur, respondents serve and file in the superior court a notice electing the option to amend their complaint to pray for a different amount of damages and/or other appropriate relief. If respondents elect that option, they must serve their amended complaint on appellant, who will be entitled to file a new answer; all issues will then be subject to resolution, including liability. The parties are to bear their own costs.
There is no change in judgment.
Appellants petition for rehearing is denied.