Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment and order of the Superior Court of Los Angeles County No. BC217431 Richard L. Fruin, Jr., Judge.
Fagelbaum & Heller, Philip Heller and Jerold Fagelbaum for Plaintiffs and Appellants.
Anderson, McPharlin & Conners, David T. DiBiase and Lisa Le Nay Coplen for Defendants and Appellants.
CHAVEZ J.
Plaintiff and appellant Eve Sternlight Cohen (Cohen), as co-trustee of the Sternlight Family Trust (the Trust) and as co-special administrator of the Estate of Sara Sternlight (the Estate), appeals from the judgment entered in favor of defendants and respondents Hoffman, Sabban & Watenmaker (HSW), Nina Madden Sabban (Sabban), and Kenneth Feinfield (Feinfield) following a jury trial in Cohen’s action for legal malpractice and breach of fiduciary duty. Before the trial commenced, HSW filed a motion to dismiss for failure to bring the action to trial within five years, which the trial court denied. After the trial, the jury found no breach of fiduciary duty by HSW, but found HSW 10 percent negligent, and Cohen and the other co-trustees of the Trust 90 percent negligent. The jury further found the co-trustees of the Trust had unclean hands in their dealings with HSW. As a result of the co-trustees’ unclean hands, the Trust and the Estate recovered nothing from HSW, and HSW was awarded its costs in the amount of $124,028.
HSW, Sabban, and Feinfield are referred to collectively as HSW.
Cohen filed the instant appeal on behalf of the Trust and the Estate. HSW cross-appealed the denial of its motion to dismiss for failure to bring the action to trial within five years. We affirm the judgment and the denial of HSW’s motion to dismiss.
HSW also filed a motion to dismiss the Estate’s appeal on the ground that Cohen lacked standing to file the notice of appeal on the Estate’s behalf. We previously denied that motion.
BACKGROUND
1. Factual Background
Sara (Sara) and Morris (Morris) Sternlight were married to each other and had three children, Joseph Sternlight (Sternlight), Helen Sternlight Fabe (Fabe), and Cohen. In 1986, Morris retained attorney Jack Frydrych to prepare an estate plan that included the creation of the Trust and wills for Morris and Sara. Both wills provide that upon the death of the surviving spouse, all assets would “pour over” into the Trust. After the Trust documents were prepared, Morris told Cohen that he and Sara owned $2 million in tax free municipal bonds.
In April 1992, Morris became ill and was placed in a mental health facility. His daughter Fabe obtained an appointment as conservator over Morris’s person pursuant to the Lanterman-Petris-Short Act. She also assumed control over the Sternlight finances and opened a checking account as Morris’s conservator. At about the same time, Fabe learned that the Trust owned more than $1 million in tax free municipal bonds.
Sara’s nephew, Gary Lubliner (Lubliner), subsequently met with Sara and Fabe to discuss the bonds. Lubliner suggested reducing the Trust’s estate tax liability by selling the bonds and depositing the proceeds in a Swiss bank account. Sara agreed with Lubliner’s recommendation, and in January 1993, Sara, Fabe, Lubliner, and Lubliner’s wife traveled to Switzerland with the bonds hand carried in a briefcase.
After arriving in Switzerland, Sara opened a bank account into which the proceeds from the sale of the bonds were to be deposited. Sara signed the account documents, and conversed with bank officers in Hebrew, German, and English. Sara also signed the documents necessary to effect the sale of the bonds and endorsed the bonds themselves. Fabe endorsed the bonds on Morris’s behalf, although she knew that she did not have the legal authority to do so.
After the bonds were sold, approximately $1.7 million in proceeds were deposited into Sara’s Swiss bank account. Fabe obtained a power of attorney allowing her to withdraw money from that account. Morris died in November 1993. Shortly thereafter, Fabe began stealing money from the bank account in Switzerland. She ultimately admitted stealing $1.2 million from that account.
After Sara and Fabe made the initial trip to Switzerland in 1993, but before Morris died, Sara, Fabe, and Cohen met with Sabban of HSW to discuss amending the Trust documents. HSW had previously represented Fabe and her husband in preparing their estate planning documents. Sabban orally disclosed the prior representation to both Sara and Cohen during her initial meeting with the three women, but she presumed Cohen already knew of the prior representation because Cohen was a named trustee of Fabe’s trust and had signed Fabe’s trust documents. At the initial meeting with HSW, Sara told Sabban that the marital estate was worth approximately $3 million. None of the three, Sara, Cohen, or Fabe, told Sabban that Morris and Sara also owned between $1 and $2 million in tax free municipal bonds. Sara, Cohen, and Fabe executed a retainer agreement with HSW in June 1993 for work on Morris’s conservatorship and amendments to the Trust documents. The retainer agreement did not contain a conflict of interest provision, and no HSW attorney discussed with Sara, Cohen, or Fabe the potential conflicts of interest that could arise as a result of HSW’s joint representation of them as co-trustees. HSW attorney Feinfield subsequently prepared a petition for substituted judgment that enabled Sara, Fabe, and Cohen to amend the Trust. Sabban amended the Trust to name Fabe and Cohen as co-trustees with Sara. Sara, Fabe, and Cohen signed, under penalty of perjury, a petition for substituted judgment valuing Sara’s and Morris’s estate at approximately $3 million.
Sabban testified that she met with Sara several times during the course of HSW’s representation of her, that they conversed in both English and Yiddish, and that Sara presented herself as a self-assured, “street-smart” woman. By asking her questions, Sabban determined that Sara knew the identity of her heirs and the nature and extent of her assets. Sabban said that based on her experience in dealing with elderly clients over the years, she concluded that Sara was competent, and that she understood what was happening. Neither Fabe nor Cohen ever suggested to Sabban that Sara was not competent. Sara signed the Trust documents voluntarily, and it did not appear to Sabban that anyone was threatening or coercing Sara into doing so.
After Morris’s death in November 1993, HSW assisted Sara, Cohen, and Fabe in preparing the tax return for Morris’s estate. Sara, Cohen, and Fabe entered into a second retainer agreement with HSW, and attorney Feinfield prepared the estate tax return. As part of that representation, Feinfield requested Sara’s and Morris’s income tax returns for the three years preceding Morris’s death. The 1991 and 1992 tax returns reflected significant tax free interest income, but the 1993 return, which Sara had signed under penalty of perjury, did not. Feinfield brought the discrepancy in the tax returns to Sabban’s attention, and the two of them decided to inquire what had happened to the tax free income between 1992 and 1993.
Sabban and Feinfield met with Sara and Fabe to discuss the missing interest income. At that meeting, Sara explained that a man she did not know had called at her home one night, saying he was there to collect a debt Morris had incurred in the early 1940’s while he was living in Israel. Sara delivered the bonds to the stranger as repayment for the debt. Feinfield initially found the story to be incredible, but ultimately came to accept it. Sabban believed Sara’s story and found it to be “odd,” but “not impossible.” Based on the information provided to him, Feinfield prepared a tax return for Morris’s estate that did not include the tax free municipal bonds. Sara signed the estate tax return, which was filed in 1995, under penalty of perjury. Fabe later admitted that the explanation given to HSW about the disposition of the bonds was false.
Some time after 1992, Cohen asked Sara about the bonds, and Sara told her, “Everything is fine. Don’t mix in.” Cohen did not disclose to HSW her conversation with Sara about the bonds. In 1998, Cohen discovered that Fabe had been stealing money from Sara’s bank account in Switzerland and had misappropriated Sara’s assets, including real estate Sara owned in Israel. Cohen expended her personal funds in an effort to recover the misappropriated assets. Fabe was ultimately convicted of committing financial elder abuse on Sara.
2. Procedural History
Cohen filed this action against HSW on September 27, 1999. After the trial court denied HSW’s demurrer and motion to strike the complaint, HSW filed its answer on January 31, 2000. On February 18, 2000, HSW filed a petition for writ of mandate regarding the ruling on the demurrer and requested a stay. On March 7, 2000, this court issued an alternative writ of mandate and stayed the action for 24 days. As the result of several successive bench changes, the case was suspended for an additional 18 days. The trial court set the case for trial on December 7, 2001.
Judge Hubbell, the judge originally assigned to the case, recused himself on February 14, 2001, and the case was reassigned to Judge Murphy. After a Code of Civil Procedure section 170.6 challenge to Judge Murphy, the case was reassigned to Judge Fromholz on March 15, 2001.
On October 12, 2001, Sternlight filed an ex parte application to continue the trial date, which Cohen joined. The trial court granted the motion, continuing the trial to April 8, 2002.
On February 11, 2002, Cohen filed an ex parte application to continue the trial date. The trial court denied the application, and Cohen filed a petition for writ of mandate, which this court denied on February 19, 2002. Cohen then filed a petition for review by the California Supreme Court, which was denied on February 26, 2002.
On March 5, 2002, Cohen filed an objection to Judge Fromholz, the judge to whom the case had been assigned, and Judge Fromholz recused himself. As a result of the recusal, the April 8, 2002 trial date was vacated. The case was thereafter assigned to Judge Richard Fruin, and trial was set for September 3, 2002. The parties thereafter agreed to continue the trial date until after the ancillary probate action had concluded, and the trial court set a new trial date of February 24, 2003.
In late January 2003, HSW requested that the trial court “vacate and continue the instant trial date and set a status conference/trial setting conference far enough in the future so that the trial date in the malpractice action will correspond to the completion of the probate action.” The trial court granted this request and vacated the February 24, 2003 trial date. On March 22, 2004, the trial court set the trial for July 12, 2004.
On July 7, 2004, Cohen filed another ex parte application to continue the trial. HSW did not oppose the request and agreed in open court to stipulate to waive the five-year statutory period under Code of Civil Procedure section 583.310 provided the trial commenced by November 30, 2004. The trial court continued the trial to November 1, 2004.
On November 2, 2004, the parties appeared for trial. HSW called “ready” to proceed. Cohen asked for a continuance, claiming she was too ill to attend the trial. The trial court denied the request and jury selection commenced. On November 4, 2004, the trial court declared a mistrial because of a jury pool problem, before a jury was impaneled.
At a November 10, 2004 status conference, Cohen again sought a continuance based on her illness. Sternlight also requested a continuance because his wife (a non-party) was ill with cancer and because one of his attorneys had a previously planned vacation. The trial court asked HSW whether they would stipulate to extend the five-year statutory period beyond November 30, 2004, and HSW responded: “No, we’ll not stipulate to waive or in any fashion compromise the operation of the five-year statute.” The trial court granted Cohen’s and Sternlight’s request for a continuance and continued the trial to April 25, 2005.
On March 17, 2005, HSW filed a motion to dismiss the action pursuant to Code of Civil Procedure sections 583.310 and 583.360 for failure to commence the trial within five years. The trial court denied the motion. HSW filed a petition for writ of mandate, which this court denied on April 20, 2005.
The trial commenced on September 7, 2006. At the conclusion of the plaintiffs’ case-in-chief, the trial court granted HSW’s motion for nonsuit as to the Estate, on the ground that there was no evidence that the Estate suffered damages separate and independent from the Trust. On October 10, 2006, the jury reached a verdict, finding HSW liable for professional negligence but not for breach of fiduciary duty, and damages to the Trust in the amount of $374,900. The jury apportioned fault as between HSW and the co-trustees and found HSW 10 percent negligent and the co-trustees 90 percent negligent. After application of comparative fault, HSW’s liability to the Trust was $37,490.
The jury further found that Fabe, Cohen, and Sara had acted with unclean hands. Specifically, the jury found that Sara’s conduct in taking the bonds to Switzerland, and telling the HSW lawyers the “stranger in the night” story about the disposition of the bonds; that Cohen’s conduct in omitting the existence of the bonds in her dealings with HSW; that Fabe’s conduct in forging signatures and stealing money from the Trust; and that the failure of all three women to perform their duties as co-trustees, constituted unclean hands.
In a detailed set of written findings, the trial court adopted the jury’s determination that the co-trustees had acted with unclean hands, including the finding that Fabe failed to perform her duties as a co-trustee. The court did not conclude, however, that Fabe was acting within the scope of her authority as a co-trustee when she stole money from the Trust and forged signatures in order to do so. The trial court then determined that the unclean hands defense applied and relieved HSW of all liability for damages.
Judgment was entered in favor of HSW on December 12, 2006. The trial court denied Cohen’s motion for a new trial and judgment notwithstanding the verdict, and awarded HSW costs in the amount of $124,028.60. Cohen filed the instant appeal and HSW cross-appealed the denial of its motion to dismiss under Code of Civil Procedure section 583.10.
DISCUSSION
I. Cohen’s Appeal
A. Unclean Hands
Cohen contends the trial court improperly allowed HSW to assert an unclean hands defense. Unclean hands is an equitable doctrine that is invoked as a complete affirmative defense if the plaintiff has engaged in inequitable conduct in connection with the matter in controversy. (Dickson v. Pole (2000) 83 Cal.App.4th 436, 446.) As a general rule, application of the doctrine of unclean hands is primarily a question of fact. (Insurance Co. of North America v. Liberty Mutual Ins. Co. (1982) 128 Cal.App.3d 297, 306.) In applying the doctrine, a court must consider both the degree of harm caused by the plaintiff’s misconduct and the extent of the plaintiff’s alleged damages.
“Not every wrongful act constitutes unclean hands. But, the misconduct need not be a crime or an actionable tort. Any conduct that violates conscience, or good faith, or other equitable standards of conduct is sufficient cause to invoke the doctrine. [Citations.] [¶] The misconduct that brings the unclean hands doctrine into play must relate directly to the cause at issue.... Courts have expressed this relationship requirement in various ways. The misconduct ‘must relate directly to the transaction concerning which the complaint is made, i.e., it must pertain to the very subject matter involved and affect the equitable relations between the litigants.’ [Citation.] ‘[T]here must be a direct relationship between the misconduct and the claimed injuries... “‘so that it would be inequitable to grant [the requested] relief.”’’ [Citation.]” (Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 979.) Thus, although the unclean hands defense is a complete one, its application is limited to the extent of the plaintiff’s misconduct as it relates to the subject matter of the litigation to which it is a defense. (Rosenfeld v. Cohen (1987) 191 Cal.App.3d 1035, 1061.) Whether the defense applies in a particular case depends on the analogous case law, the nature of the misconduct, and the relationship of the misconduct to the claimed injuries. We review the trial court’s decision as to whether or not to apply the unclean hands doctrine under the abuse of discretion standard. (Dickson v. Pole, supra, 83 Cal.App.4th at pp. 446-447.)
1. Sara’s Unclean Hands
Cohen contends the doctrine of unclean hands should not apply to Sara because Sara was the victim of financial elder abuse and “undue influence” by Fabe. She maintains that Fabe’s conviction of financial elder abuse and the probate court’s determination in the ancillary probate proceeding that Sara fell “victim to the depredation of her own daughter, Helen Sternlight Fabe” conclusively establish that Sara’s actions were the product of Fabe’s undue influence.
Cohen cites no admissible evidence to support her claim that Sara’s actions in concealing the existence and disposition of the bonds from HSW were the result of Fabe’s undue influence. The evidence cited by Cohen was either excluded by the trial court, or was admitted solely for a purpose other than to establish undue influence. The probate court’s findings in the ancillary probate proceeding were excluded from evidence at trial. Fabe’s criminal conviction was admitted solely for the purpose of assessing her credibility. Cohen has not challenged these evidentiary rulings and has accordingly waived that issue on appeal. (Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029, 1048.) Our review is limited to the admissible evidence, and that evidence does not support Cohen’s argument.
There is substantial evidence in the record that Sara knowingly and willingly participated in the transfer of more than $1 million in bonds from the Trust to Switzerland, and that she concealed that transfer from HSW. Fabe testified at trial that Sara voluntarily took the bonds to Switzerland in January 1993 for the purpose of avoiding estate tax, and that no one threatened or coerced her into doing so. There was evidence that after HSW learned of the existence of the bonds, Sara and Fabe both lied to HSW about their disposition. Sara also executed, under penalty of perjury, a 1993 income tax return and a 1995 estate tax return that failed to disclose the existence of the bonds. Substantial evidence supports the jury’s finding that Sara acted with unclean hands.
The trial court determined that Sara’s participation in the concealment of a substantial trust asset, including signing, under penalty of perjury, a false tax return, “infects all of plaintiffs’ claims against their former lawyers.” In light of the evidence, that determination was not an abuse of discretion.
2. Fabe’s Unclean Hands
In this appeal, Cohen argues for the first time that Fabe’s misconduct in her dealings with HSW should not be imputed to the Trust because the Trust was the victim of Fabe’s misappropriation of Trust assets. In applying the doctrine of unclean hands, the trial court determined that “Fabe’s conduct, while she was acting within her authority as co-trustee of the Sternlight Family Trust, is chargeable to the Trust because she was acting as an agent for the Trust.” Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658 (Peregrine), on which the trial court based its determination, is an analogous case. In Peregrine, a bankruptcy trustee that had succeeded to the interests of a corporation used to perpetrate a Ponzi scheme sued a law firm for malpractice and for aiding and abetting the Ponzi scheme. The court in Peregrine held that the doctrine of unclean hands barred both the corporation and its successor in interest (the bankruptcy trustee) from pursuing claims against the law firm. (Id. at pp. 679-680.) The court reasoned that the individual who owned and controlled the corporation was the primary architect of the Ponzi scheme and applied the doctrine of unclean hands to impute the owner’s fraud to the corporation. (Ibid.) Here, Fabe’s conduct as a co-trustee was chargeable to the Trust.
In the trial court, Cohen and Sternlight argued that Fabe’s conduct was not relevant to the issue of unclean hands because she was not a party.
Cohen argues that the trial court “misapplied” the Peregrine case by imputing to the Trust Fabe’s criminal acts of stealing assets from the Trust. The trial court did not impute Fabe’s criminal conduct to the Trust. Rather, the trial court explicitly found that Fabe’s theft from the Trust fell outside the scope of her duties as a co-trustee, and was therefore not chargeable to the Trust. Fabe’s conduct as a co-trustee in concealing trust assets was properly imputed to the Trust for purposes of applying the unclean hands doctrine. (Peregrine, supra, 133 Cal.App.4th at pp. 679-680.)
3. Cohen’s Unclean Hands
Cohen challenges the jury’s finding that she had unclean hands in her dealings with HSW. She contends her actions did not constitute intentional misconduct, but were at most negligent omissions. Cohen further contends she was “cleansed” of any misconduct by spending her own money to retrieve Trust assets stolen by Fabe. As discussed, the doctrine of unclean hands may be applied to “any conduct that violates conscience, or good faith, or other equitable standards of conduct,” so long as the conduct relates directly to the claimed injuries. (Kendall-Jackson Winery, Ltd. v. Superior Court, supra, 76 Cal.App.4th at p. 979.)
The record contains substantial evidence that Cohen’s conduct facilitated the concealment of the bonds. There was evidence that Cohen knew, in 1986, of the existence of more than $1 million in tax free municipal bonds; that she signed, under penalty of perjury, a petition for substituted judgment that did not include the bonds; that she signed, under penalty of perjury, an estate tax return that did not include any income from the bonds; that she asked Sara about the bonds and was told “Don’t mix in”; and that she never inquired further about the bonds nor did she disclose the existence of the bonds to HSW. Substantial evidence supports the jury’s finding that Cohen acted with unclean hands in her dealings with HSW. Her conduct as a co-trustee was properly imputed to the Trust. (Peregrine, supra, 133 Cal.App.4th at pp. 679-680.)
B. Comparative Fault
Cohen contends the trial court erred by allowing the jury to consider and apply the doctrine of comparative fault. She maintains that neither she nor Sara was comparatively negligent, and that HSW’s liability should not be reduced because of Fabe’s criminal conduct.
The doctrine of comparative fault allocates liability for damage in proportion to the relative fault of the parties. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829.) Thus, when a plaintiff’s conduct combines with a defendant’s conduct to produce an injury, the doctrine may be applied to reduce the defendant’s liability in proportion to the plaintiff’s relative fault. Comparative fault may also be applied to reduce a defendant’s liability to the extent the harm was caused by a third party. (See Kroll & Tract v. Paris & Paris (1999) 72 Cal.App.4th 1537, 1541, 1545.) It may also be asserted as an affirmative defense in a legal malpractice action. (Id. at p. 1545.)
1. Sara’s Comparative Fault
The jury found that Sara’s conduct was a substantial factor in causing the damage sustained by the Trust, and that Sara was 25 percent at fault. Substantial evidence supports this finding. As discussed, there was evidence that Sara knowingly and willingly participated in the transfer of more than $1 million in bonds from the Trust to a bank in Switzerland; that she concealed that transfer from HSW; and that after HSW learned of the existence of the bonds, she lied to HSW about their disposition.
Cohen contends that Fabe’s conviction of financial elder abuse and the probate court’s determination that Sara was a victim of Fabe’s fraudulent and financially abusive conduct conclusively established that Sara was acting under Fabe’s undue influence, and that the doctrines of res judicata and collateral estoppel should have precluded assigning any comparative fault to Sara. As discussed, the probate court’s findings in the ancillary probate proceeding were excluded from evidence, and Fabe’s conviction of financial elder abuse was admitted for the sole purpose of assessing her credibility. Our review is limited to the admissible evidence.
Even considering the evidence presented by Cohen, the doctrines of res judicata and collateral estoppel do not apply. “‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ [Citation.]” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896, fn. omitted.)
HSW was not a party in the prior criminal and probate court proceedings, and Fabe is not a party in this action. The cause of action in this case and the causes of action in the prior proceedings are not the same, and there were no issues argued and decided in those proceedings that are dispositive here. Neither res judicata nor collateral estoppel precludes application of comparative fault to Sara.
2. Fabe’s Comparative Fault
Cohen cites Civil Code section 1431.2 and Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42 (Ovando) as support for her argument that the comparative fault doctrine should not apply to Fabe’s conduct. Neither Civil Code section 1431.2 nor Ovando is applicable here.
Civil Code section 1431.2 applies only to actions for “personal injury, property damage or wrongful death.” (Civ. Code, § 1431.2, subd. (a).) The instant legal malpractice action involves none of those claims. Ovando involved a legal malpractice action seeking noneconomic damages for emotional distress and physical pain that the court in that case concluded was an “action for personal injury” within the meaning of Civil Code section 1431.2, subdivision (a). (Ovando, supra, 159 Cal.App.4th at p. 73.) This case involves no claims for emotional distress or physical pain. Ovando is thus inapposite.
Civil Code section 1431.2, subdivision (a) provides: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.”
Cohen contends the trial court erred by approving a special verdict form that allowed the jury to consider Fabe’s criminal conduct to reduce the liability of HSW. The jury was not allowed to consider Fabe’s criminal actions. When instructing the jury on comparative fault, the trial court made clear that the analysis should be limited to Fabe’s negligence while “acting within the scope of her authority as a co-trustee of the Sternlight Family Trust when communicating with [HSW].”
3. Cohen’s Comparative Fault
Substantial evidence supports the jury’s finding that Cohen’s conduct was a substantial factor in causing the Trust’s damage, and that Cohen was 15 percent at fault. There was evidence that Cohen’s conduct facilitated the concealment of the bonds. Cohen knew, in 1986, of the existence of the bonds. She signed, under penalty of perjury, a petition for substituted judgment that did not include the bonds. She signed, under penalty of perjury, an estate tax return that did not include the bonds. She asked Sara about the bonds, was told “Don’t mix in,” and never inquired further. She never disclosed the existence of the bonds to HSW. Substantial evidence supports the jury’s comparative fault determination.
C. Motion for Nonsuit
Cohen contends the trial court erred by granting HSW’s motion for nonsuit as to the Estate on the ground that there was no evidence that the Estate suffered damages separate and independent from the Trust. She claims the Estate was entitled to recover monetary damages against HSW for losses resulting from Fabe’s misappropriation of Sara’s assets during Sara’s lifetime.
“In reviewing a judgment entered upon a grant of a motion for nonsuit after the close of the plaintiff’s case-in-chief (Code Civ. Proc., § 581c), the appellate court reviews the entire record of the trial court [citation] and views the evidence in the light most favorable to appellant. [Citation.] We do not weigh the evidence or consider the credibility of the witnesses who have testified; rather we are required to accept as true the evidence most favorable to the plaintiff, disregarding conflicting evidence. [Citation.] ‘“‘The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’”’ [Citation.]” (Alpert v. Villa Romano Homeowners Ass’n (2000) 81 Cal.App.4th 1320, 1327, fns. omitted.)
Cohen argues that Fabe misappropriated certain of Sara’s assets during Sara’s lifetime, including more than $100,000 in Social Security payments and real estate located in Israel (referred to during the trial as the Holon property), and that these assets were never transferred to the Trust. Cohen further argues that Sara’s claims for the misappropriated assets accordingly belong to the Estate, and that the Estate, and not the Trust, is entitled to commence an action on Sara’s behalf pursuant to Code of Civil Procedure section 377.30.
Code of Civil Procedure section 377.30 provides in part: “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest... and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.”
Code of Civil Procedure section 377.11 defines the term “decedent’s successor in interest” as “the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” The term “beneficiary of the decedent’s estate” is defined in Code of Civil Procedure section 377.10, subdivision (a), as: “If the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under the decedent’s will.”
The terms of Sara’s will conveyed to the Trust the entirety of her estate, “of every kind or nature and wherever situated, including property over which [she had] power of appointment.” The evidence thus shows that Sara’s causes of action to recover damages for the misappropriated Holon property and Social Security payments passed to the Trust, not the Estate. Even if the assets themselves were never transferred to the Trust, under the terms of Sara’s will, the right to recover damages for their misappropriation did pass to the Trust.
In addition, the only evidence of loss presented at the trial (including losses associated with the Holon property and the diverted Social Security payments) was of loss sustained by the Trust. Cohen’s damages expert, economist George Miller, testified exclusively about loss sustained by the Trust. During an offer of proof regarding Miller’s testimony, Cohen’s counsel conceded that Miller was unable to provide any separate damages calculation for the Estate. There was no evidence that the Estate sustained any damage that was separate or distinct from that sustained by the Trust. The trial court accordingly did not err by granting HSW’s motion for nonsuit as to the Estate.
D. Evidentiary Rulings and Cross-Examination
Cohen contends the trial court erred by excluding as inadmissible hearsay the testimony of several witnesses about statements Sara had made to them, by excluding videotaped interviews of Sara made in 1999, and by excluding testimony concerning Sara’s mental competence by her appointed Probate Volunteer Panel (PVP) attorney in conservatorship proceedings against her in 1999. Cohen maintains this evidence was admissible to prove Sara’s mental state and to establish that Sara was not a willing participant in concealing the bonds from HSW. Cohen further contends the trial court improperly restricted the cross-examination of HSW’s liability expert.
In 1999, Sternlight filed a petition in probate court to impose a conservatorship on Sara. Pursuant to Probate Code section 1470, the probate court appointed private legal counsel for Sara to represent her in those proceedings.
We review the trial court’s evidentiary rulings for abuse of discretion. (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 456.) We apply the same standard of review to the limitations imposed by the trial court on Cohen’s cross-examination of HSW’s expert witness. (Dollinger v. San Gabriel Lanes (1962) 205 Cal.App.2d 705, 710-711.)
1. Hearsay Rulings
Hearsay, as defined by Evidence Code section 1200, 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).) Hearsay evidence is inadmissible except as provided by law. (§ 1200, subd. (b).) One exception to the hearsay rule is set forth in Evidence Code section 1250, which allows evidence of a statement of the declarant’s then existing state of mind, if the declarant’s state of mind is itself an issue in the action, or the evidence is offered to explain the acts or conduct of the declarant. A similar exception is contained in Evidence Code section 1251, which allows evidence of a statement of the declarant’s state of mind at a time prior to the statement to be admitted if the declarant is unavailable as a witness, the declarant’s state of mind is itself an issue in the action, and the evidence is not offered to prove any fact other than such state of mind. Evidence of a statement of the declarant’s mental state is inadmissible, however, “if the statement was made under circumstances such as to indicate its lack of trustworthiness.” (Evid. Code, § 1252.)
Evidence Code section 1250 provides in part: “(a)... evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant. [¶] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.”
Evidence Code section 1251 provides in part: “Subject to Section 1252, evidence of a statement of the declarant’s state of mind... at a time prior to the statement is not made inadmissible by the hearsay rule if: [¶] (a) The declarant is unavailable as a witness; and [¶] (b) The evidence is offered to prove such prior state of mind... when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind....”
a. Contemporaneous Statements by Sara
Cohen contends the trial court allowed HSW to present evidence of statements made by Sara to HSW attorneys concerning her state of mind during the course of HSW’s representation of the co-trustees but improperly denied Cohen the opportunity to present similar evidence of contemporaneous statements of Sara’s mental state during that same time period. The trial court did permit evidence of Sara’s mental state to the extent relevant to the claims for legal malpractice and breach of fiduciary duty asserted against HSW, as reflected in the court’s evidentiary rulings: “Sara’s mental condition is in issue but only on the dates that the lawyer defendants took actions affecting the Trust’s or her assets and only to the extent that the lawyers had notice, actual or constructive (Civil Code 19), of her mental condition.” Cohen does not specify what statements of Sara’s mental state made during the relevant time period she sought to introduce, and provides no citation to the record as to where such evidence was improperly excluded. We therefore disregard her evidentiary challenge. (Aguimatang v. Cal. State Lottery (1991) 234 Cal.App.3d 769, 796 [reviewing court may disregard evidentiary contentions unsupported by citation to appellate record].)
b. Sara’s Statements to her PVP Counsel and to Sternlight
Cohen contends the trial court erred by excluding testimony by Sternlight and by Sara’s PVP counsel, Lance Weagant, that Sara had said she was afraid of Fabe, that she had signed documents without understanding them, and that Fabe had threatened her if she refused to sign documents or do other things Fabe demanded. Cohen argues that these statements did not constitute hearsay because they were not offered for the proof of the matters stated, but to create an inference that if Sara concealed information from HSW, she did so only because she was afraid of Fabe.
Sara’s motivation for concealing information from HSW was not at issue in this legal malpractice action. As noted by the trial court: “The court does not agree with Joseph Sternlight’s framing of the issue that: ‘At issue is whether Sara’s conduct was motivated not by her free will, but by fear instilled by [Fabe’s] threats and manipulations.’... The operative complaint does not seek relief against [Fabe] at all; it does not allege [Fabe] exercising undue influence against Sara, and such allegation would not be relevant to the legal malpractice claims. The issue is not a testator’s intent [but] whether defendant lawyers had notice that Sara was being manipulated by [Fabe] at the time they took actions purportedly with Sara’s consent.... Joseph Sternlight[’s] testimony that Sara said she was pressured by [Fabe] is being used as circumstantial evidence that she was pressured by [Fabe] to tell the lawyer defendants a false story about the missing bonds.” Evidence Code section 1250 “forbids the use of a statement of memory or belief to prove the fact remembered or believed.” (Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foll. § 1251, p. 299.) The trial court did not abuse its discretion by excluding testimony by Sternlight concerning Sara’s statements about Fabe or about signing documents or taking other actions because she was afraid of Fabe.
For the same reasons, the trial court’s exclusion of hearsay testimony by Sara’s PVP counsel concerning Sara’s recollection of past events was not an abuse of discretion. An additional basis for excluding such testimony was the lack of trustworthiness of Sara’s statements, which were made to her PVP counsel in February 1999. At that time, Sara was under a conservatorship of her person and estate on the ground that she was “frail, forgetful and not competent to enter into any contracts.” The trial court did not abuse its discretion by excluding testimony concerning Sara’s statements to her PVP counsel, made under circumstances indicating a lack of trustworthiness. (Evid. Code, § 1252.)
c. Opinions Concerning Sara’s Mental Competence
Cohen contends the trial court erred by excluding testimony by Sara’s PVP counsel about his observations and opinions concerning Sara’s mental competence. Sara’s PVP counsel was not designated as a medical expert, nor was he appointed as PVP counsel until February 1999. His observations and opinions concerning Sara’s mental condition would therefore have been limited to the time period following February 1999. Sara’s mental competence during that time period was not at issue in this case. The trial court’s exclusion of this testimony accordingly was not an abuse of discretion.
d. Videotaped Interviews of Sara
Cohen argues that the trial court improperly excluded videotaped interviews of Sara made in 1999. To the extent that these interviews were offered as evidence of Sara’s mental condition, they were properly excluded. As the trial court noted, although Sara’s mental state at the time she dealt with HSW in 1993 may have been relevant, an interview conducted several years later is not reliable evidence of her mental state when she met with HSW. At the time the interviews were conducted, Sara was under a conservatorship initiated by her son, Sternlight, because she was “frail, forgetful and not competent to enter into any contracts.” She had been previously diagnosed as “confused” and experiencing “delirium.” During the 1999 interviews, Sara at times appears confused. The trial court did not abuse its discretion by excluding the videotaped interviews of Sara made in 1999 as evidence of her mental state at the time she dealt with HSW several years earlier. (Evid. Code, § 1252.)
2. Expert Cross-Examination
Cohen contends the trial court improperly required her counsel to preview to HSW’s counsel and HSW’s liability expert, Bruce Ross (Ross), the issues and facts upon which counsel intended to cross-examine Ross. Cohen further contends the trial court improperly limited cross-examination of Ross.
The scope of cross-examination is within the sound discretion of the trial court, and the exercise of such discretion will be not disturbed on appeal absent a clear abuse of that discretion. (People v. Adan (2000) 77 Cal.App.4th 390, 394; Garcia v. Hoffman (1963) 212 Cal.App.2d 530.) “‘The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) As we discuss, no abuse of discretion occurred.
a. “Previewing” of Cross-Examination
On September 27, 2006, after the direct examination of Ross had concluded, a discussion ensued among the parties regarding their anticipated time estimates for cross-examination. After Cohen’s counsel and counsel for Sternlight stated that they anticipated cross-examining Ross for two hours and one hour, respectively, HSW’s counsel advised the trial court: “Your honor, I’m mindful of scope issues, because we saw that I didn’t ask [Ross] about all the issues in this case. So for what it’s worth, I will definitely make appropriate scope objections if they go outside what he testified to.” Cohen’s counsel maintained that they were entitled to cross-examine Ross about purported admissions he had made during his deposition testimony. The trial court excused Ross and then responded: “Counsel, I don’t know on what basis you can ask an expert witness to give opinions on something that he’s not offered the testimony and opinion about.” The trial court further advised Cohen’s counsel that if the subject matter is “not raised in direct, on what basis do you have to raise it on cross?” Without objection, Cohen’s counsel then proceeded to present argument concerning the matters upon which she intended to cross-examine Ross, including actual or potential conflicts of interest and issues concerning administration of the Trust. The trial court then advised Cohen’s counsel to identify any other categories of issues she intended to cover during her cross-examination of Ross and the factual bases supporting that cross-examination.
Sternlight, as a representative of the Estate, and Cohen, as co-trustee of the Trust, were represented by separate counsel at trial.
Later that same day, after the jury was excused, the parties further discussed the time estimates for cross-examination. Ross was present during this portion of the discussion. After the trial court imposed a time limit of one hour and forty-five minutes on Cohen’s cross-examination, the trial court excused Ross as a witness. Although the record is unclear, it appears that Ross thereafter left the courtroom. Further discussion concerning the scope of cross-examination continued, and Cohen’s counsel argued, again without objection, that she was entitled to cross-examine Ross regarding the standard of care with respect to HSW’s administration of the Trust, the preparation of the estate tax return, and actual and potential conflicts of interest among the co-trustees. Cohen’s counsel argued that she was entitled to cross-examine Ross regarding certain purportedly fraudulent gift transfers and HSW’s role in preparing Morris’s estate tax return, and HSW’s counsel argued that these issues were outside the scope of Ross’s direct examination.
The discussion between Cohen’s counsel and the trial court concerning the proposed cross-examination of HSW’s expert witness came within the trial court’s discretion to “exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth.” (Evid. Code, § 765, subd. (a).) There was no abuse of discretion.
b. Scope of Cross-Examination
Cohen contends the trial court abused its discretion by improperly restricting the cross-examination of Ross to preclude counsel from (1) using hypothetical questions if there were documents that established the real facts; (2) inquiring about “the gift cards”; (3) inquiring about any aspect of HSW’s conduct regarding the preparation or filing of an estate tax form 706 for Morris; (4) cross-examining Ross “with a big book of exhibits”; (5) inquiring of Ross as to which specific documents he had or had not reviewed in rendering his opinion; (6) asking Ross to describe which aspects of HSW’s conduct he had expressed no opinion; (7) asking Ross whether any of the assumptions upon which he had based his opinion were false after showing him evidence that purportedly contradicted those assumptions; and (8) showing Ross defendant Feinfield’s deposition testimony about client discussions he had concerning the bonds, the appraisals, or inventory, and his reasons for not asking Morris about the $1 million in bonds purportedly given by Sara as repayment for an undocumented loan.
Cohen does not identify in her appellate briefs what “the gift cards” were, nor does she specify any reference in the record to testimony discussing “the gift cards.” The “gift cards” were attachments to a handwritten memo from Fabe to an HSW paralegal apparently documenting gifts purportedly made by Sara of various items of her personal property. The “gift cards” were the subject of expert testimony by Cohen’s liability expert, William McGovern.
Evidence Code section 773, subdivision (a) provides: “A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs.” Evidence Code section 721, subdivision (a), states that “a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion.”
The trial court determined that the gift cards and the preparation, signing, or filing of the form 706 estate tax return were beyond the scope of the direct examination of Ross. Cohen failed to demonstrate that these matters came within the scope of Ross’s direct examination, or that they were the subject of Ross’s expert testimony or matters upon which his opinion was based. The trial court’s limitation of the cross-examination of Ross to exclude these matters was not an abuse of discretion. (Evid. Code, §§ 721, 773; Garcia v. Hoffman, supra, 212 Cal.App.2d at p. 536.)
The remainder of Cohen’s contentions regarding the trial court’s limitation of the cross-examination of Ross either have no merit or were waived by failure to object in the trial court below. Cohen’s argument that the trial court precluded counsel from using hypothetical questions is based on the following exchange that occurred during cross-examination of Ross by Sternlight’s counsel, Mr. Rolin:
“[MR. ROLIN]: Would the decline of liquidity in the estate from 1986 of $1.2 million to May of 1995, $56,000, cause you, as a prudent practitioner, concern as to where
“[HSW’S COUNSEL]: Objection. Misstates the evidence. Not a good faith
“THE COURT: Excuse me. Can we tie it better to the facts, Mr. Rolin?”
The trial court later explained: “Mr. Rolin, you wanted to raise something about this last question. Seemed to me that you could better phrase the question. Here’s my point: I don’t want a hypothetical that is close to the truth when we have documents that confirm what the real truth is. In other words, if we have documents that confirm the real facts, close enough is not good enough. Do the actual facts.” Mr. Rolin responded: “I will reshape my questions and collect where I am with these exhibits.” Cohen’s counsel raised no objection to the trial court’s directive, or to Mr. Rolin’s response that he would “reshape” the questions, and accordingly forfeited the right to challenge that directive on appeal.
Cohen’s contention that her counsel was unable to inquire whether Ross reviewed certain documents in HSW’s files is incorrect. The record shows that Cohen’s counsel attempted to question Ross about three volumes of documents from HSW’s files that were “differently constituted” than the ones Ross had reviewed. When HSW’s counsel objected, the trial court addressed Cohen’s counsel as follows: “I don’t know how you can ask him to review multiple pages... and ask whether he’s seen it before, because it wasn’t presented to him in that manner. In other words, it’s not something the witness can answer, and we shouldn’t be spending time on that.... I want you to ask different questions than whether -- than those that require him to thumb through pages and try to remember whether he looked at those pages or not.” When Cohen’s counsel explained that she was attempting to determine what specific documents Ross had reviewed, the trial court responded: “Counsel, there are 50, 60 letters and other important documents that we have discussed during this trial. All of them came from the [HSW] file, someplace in the file. He looked at those documents individually rather than looking at the file itself. And he can’t thumb through the file while he’s sitting here under -- while you’re under a time limitation to try to figure out whether or not those are the particular pages he looked at.” Cohen’s contention that her counsel was precluded from cross-examining Ross with a “big book of exhibits” fails to specify the nature of the alleged error on the part of the trial court. Cohen does not argue, nor does the record indicate, that the trial court precluded her counsel from showing Ross any key document upon which his opinion was based, or from eliciting his testimony concerning that document.
Cohen contends she was precluded from asking Ross about areas of HSW’s conduct for which he expressed no opinion. Such inquiry would fall outside the scope of Ross’s direct examination, and the trial court did not abuse its discretion by precluding it. (See Evid. Code, § 761 [“‘[c]ross-examination’ is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness”]; Garcia v. Hoffman, supra, 212 Cal.App.2d at p. 536.)
Cohen’s arguments that she was precluded from asking Ross whether any of the assumptions on which he based his opinion were false and that she could not show Ross the deposition testimony of defendant Feinfeld regarding client discussions concerning “the statutory bonds, the appraisals or inventory, or regarding his reasons for not asking Morris Sternlight about the $1 million in bonds” are unsupported by the record. The record shows that Cohen’s counsel cross-examined Ross extensively with regard to the assumptions on which his opinions were based and whether or not Ross had confirmed the accuracy of those assumptions.
The record citations provided in Cohen’s appellate brief have nothing to do with these matters.
For example, Cohen’s counsel cross-examined Ross about the following assumptions on which his opinions were based: that Sara executed a durable power of attorney authorizing Fabe or Cohen to act on her behalf in the event of her incapacity, that a representation was made to the probate court that amending the Trust to appoint Sara, Cohen, and Fabe as co-trustees was in the best interests of Morris and the Sternlight family, and that in preparing Morris’s estate tax return, defendant Feinfield requested that the Sternlight family provide him with a list of all of the Sternlight assets.
The record discloses no abuse of discretion by the trial court.
E. Motion for New Trial and Motion for Judgment Notwithstanding the Verdict
Cohen contends the trial court erred by denying her motion for a new trial and her motion for judgment nothwithstanding the verdict. We review the denial of a motion for a new trial for abuse of discretion. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.) We review the denial of a motion or judgment nothwithstanding the verdict using “the same standard the trial court uses in ruling on the motion, by determining whether it appears from the record, viewed most favorably to the party securing the verdict, that any substantial evidence supports the verdict. ‘“‘If there is any substantial evidence, or reasonable inferences to be drawn therefrom in support of the verdict, the motion should be denied.’ [Citations.]”’” (Trujillo v. N. County Transit Dist. (1998) 63 Cal.App.4th 280, 284, citing Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 343.) Under this standard “‘“the evidence... must be viewed in the light most favorable to the jury’s verdict, resolving all conflicts and drawing all inferences in favor of that verdict.” [Citation.]’ [Citation.]” (Ajaxo Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 49.)
1. Breach of Fiduciary Duty
Cohen contends that substantial evidence does not support the jury’s determinations that (a) HSW did not breach a duty to obtain informed written waivers of potential conflicts of interest; (b) HSW did not breach a duty to obtain written authorization for Fabe to pay for Sara’s estate planning; and (c) HSW did not breach a duty to communicate with their clients and keep them informed. As we discuss, substantial evidence supports the jury’s verdict that none of Sabban, Feinfeld, or HSW breached fiduciary duties in performing legal services for Sara or for the other co-trustees.
a. Written Conflict Waiver
HSW’s liability expert, Ross, testified that the Rules of Professional Conduct require an attorney who jointly represents multiple family members in estate planning matters to obtain a written waiver of potential conflicts of interest. Ross also testified that a written conflict waiver would typically advise the clients that if an actual conflict of interest arose during the course of the joint representation such that the attorney could not perform his or her obligations to each of the family members, the attorney would withdraw from the representation. Ross conceded that HSW had not obtained a written waiver of potential conflicts of interest from the co-trustees when HSW commenced its representation of the co-trustees. Ross opined, however, that no actual conflict of interest existed among the co-trustees when HSW commenced the joint representation, and that when an actual conflict of interest came to HSW’s attention, it withdrew from the representation. In light of this testimony, the jury could have concluded that HSW’s failure to obtain the written conflict waiver did not affect HSW’s fiduciary duties in performing legal services for the co-trustees.
b. Written Authorization for Fabe
Ross testified that HSW should have confirmed in writing that the parties understood that Fabe would pay the legal expenses for preparing a qualified personal residence trust for Sara. Ross further testified that while the failure to obtain such written confirmation may have violated the Rules of Professional Conduct, rule 1-100 states that the rules are not intended to create new civil causes of action. Based on this testimony, the jury could have concluded that HSW’s violation of the Rules of Professional Conduct did not constitute a breach of fiduciary duties to the co-trustees.
Cohen argues that the testimony of her expert, William McGovern, contradicted that of Ross, and that McGovern opined that the failure to disclose Fabe’s payment of HSW’s bills fell below the applicable standard of care. Such conflicting evidence, however, is insufficient to overturn the jury’s finding. Under the substantial evidence standard of review, “all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary... principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted, or uncontradicted, which will support the conclusion reached by the jury.” (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) Substantial evidence supports the jury’s determination that HSW did not breach its fiduciary duties by failing to obtain written confirmation of Fabe’s payment of the co-trustee’s legal bills.
c. Duty to Communicate With Clients
Cohen contends the evidence is insufficient to support the jury’s determination that the HSW defendants did not breach a duty to communicate with their clients and to keep them reasonably informed. Ross testified that HSW had a duty to communicate with all of the co-trustees. He also testified that he reviewed “considerable correspondence” from HSW to all three of the co-trustees indicating that HSW had discharged this duty. Substantial evidence thus supports the jury’s finding concerning HSW’s alleged breach of the duty to communicate with its clients.
Substantial evidence supports the jury’s verdict, and the trial court’s denial of Cohen’s motion for a new trial was not an abuse of discretion.
F. Alleged Errors Involving Closing Argument, Jury Instructions, and Special Verdict Form
Cohen contends she was prejudiced as the result of misconduct by HSW’s counsel during closing argument, purported errors by the trial court in instructing the jury, and problems with the special verdict form. The standard of review for alleged misconduct by counsel during closing argument and for alleged instructional errors is the prejudicial error standard. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 802-803 [alleged misconduct by counsel during closing argument]; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1459-1460 [alleged instructional error].) “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.) The use of a special verdict form and the questions included in it are reviewed for abuse of discretion. (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 364.) As we discuss, Cohen has failed to establish any reversible error under the applicable standards.
Cohen claims that HSW’s counsel made improper argument during closing by discussing matters precluded by the trial court in its evidentiary rulings. The trial court had granted Cohen’s motion to preclude HSW’s expert, Roger Shlonsky, from testifying about the specific amount of money the Trust was relieved of paying Fabe, and from testifying as to the amount the beneficiaries were benefitted by Fabe’s forfeiture of her interest. During closing argument, HSW’s counsel said: “The evidence shows only two people will be sharing in the spoils. And when you ask yourself whether you want to take money out of my client’s pocketbook and give it to the Sternlight Family Trust, I ask you to keep that in mind.” This argument did not circumvent the trial court’s evidentiary rulings, nor did it constitute misconduct by HSW’s counsel.
Cohen argues that the trial court committed prejudicial error by not finalizing the jury instructions and instructing the jury before closing argument. Code of Civil Procedure section 607a provides in part: “Before the commencement of the argument, the court, on request of counsel, must: (1) decide whether to give, refuse, or modify the proposed instructions; (2) decide which instructions shall be given in addition to those proposed, if any; and (3) advise counsel of all instructions to be given.” The record shows that before closing argument commenced, the trial court advised counsel for the parties that although it was the court’s normal practice to read the jury instructions before final argument, “In this case I don’t know whether I’ll do that because I don’t know whether the jury instructions are in final form. So you might have to argue before the jury instructions are finalized and went [sic] to the jury.” Cohen did not object to the trial court’s decision to defer instructing the jury until after closing argument. She has not demonstrated that any given instruction was an incorrect statement of the law; she has not identified any specific instruction her attorneys would have discussed with the jury during closing argument; and she has not established that any instruction resulted in a miscarriage of justice. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 [judgment may not be reversed for instructional error in a civil case unless, after examination of the entire cause, including the evidence, a miscarriage of justice occurred].)
Cohen claims that the trial court failed to provide a complete set of instructions to the jury; however, this assertion is unsupported by the record. Although the jury instruction packet placed in the trial court’s file was missing 26 pages, the court clerk verified that copies of the written jury instructions the jury had during its deliberations were complete. Cohen’s only complaint about the special verdict form is that it was “lengthy and complicated,” and is insufficient to establish any abuse of discretion.
None of the alleged errors is a ground for reversing the judgment.
II. HSW’s Cross-Appeal
HSW contends the trial court erred as a matter of law by denying HSW’s motion to dismiss the action for failure to bring the case to trial within five years, as required by Code of Civil Procedure section 583.310. As we discuss, the trial court’s denial of the motion to dismiss was not an abuse of discretion.
Although HSW contends the denial of its motion to dismiss pursuant to Code of Civil Procedure section 583.60 should be reviewed de novo, abuse of discretion is the applicable standard of review. (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271.)
A. Applicable Law and Standard of Review
Code of Civil Procedure section 583.310 provides: “An action shall be brought to trial within five years after the action is commenced against the defendant.” “Dismissal is mandatory if the action is not brought to trial within the statutory period.” (Sanchez v. City of Los Angeles, supra, 109 Cal.App.4th at p. 1269.) Code of Civil Procedure section 583.630 states: “(a) An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article. [¶] (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”
The five-year statutory period may be extended by written stipulation or by oral agreement in open court. (Code Civ. Proc., § 583.330.) In addition, with respect to the calculation of the five-year period, Code of Civil Procedure section 583.340 provides: “In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed: [¶] (a) The jurisdiction of the court to try the action was suspended. [¶] (b) Prosecution or trial of the action was stayed or enjoined. [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.”
In determining whether the tolling provision for impossibility, impracticality or futility specified in Code of Civil Procedure section 583.340 applies, a trial court reviews “all the circumstances of a particular case, including the conduct of the parties and the nature of the proceedings. The critical factor is whether the plaintiff exercised reasonable diligence in prosecuting its case. [Citation.] The statute must be liberally construed, consistent with the policy favoring trial on the merits.” (Brown & Bryant v. Hartford Accident & Indem. Co. (1994) 24 Cal.App.4th 247, 251.) Ordinarily, a plaintiff’s illness does not render it impossible or impracticable for the plaintiff to bring the matter to trial within the five-year period. (Singelyn v. Superior Court (1976) 62 Cal.App.3d 972, 974.)
“The determination ‘of whether the prosecution of an action was indeed impossible, impracticable, or futile during any period of time, and hence, the determination of whether the impossibility exception to the five-year statute applies, is a matter within the trial court’s discretion. Such determination will not be disturbed on appeal unless an abuse of discretion is shown. [Citations.]’ [Citation.] [¶] Where a trial court has discretionary power to decide an issue, we are not authorized to substitute our judgment for that of the trial court. [Citation.] Reversible abuse exists only if there is no reasonable basis for the trial court’s action, so that the trial court’s decision exceeds the bounds of reason. [Citations.]” (Sanchez v. City of Los Angeles, supra, 109 Cal.App.4th at p. 1271.)
B. Action “Brought to Trial”
Cohen contends the instant action was “brought to trial” within the five-year period mandated by Code of Civil Procedure section 583.310 because jury selection had commenced on November 2, 2004. There is some support for this argument. In Hartman v. Santamarina (1982) 30 Cal.3d 762 (Santamarina), the California Supreme Court held that an action is “brought to trial” within the meaning of Code of Civil Procedure section 583, subdivision (b) when a jury is impaneled and sworn. Although the instant case is distinguishable from Santamarina because a mistrial was declared before a jury was impaneled, the court in Santamarina suggested that commencing the examination of prospective jurors might be sufficient to stop the five-year period from running. Citing with approval a previous Court of Appeal case, Kadota v. City & County of S.F. (1958) 166 Cal.App.2d 194 (Kadota), the court in Santamarina stated: “In Kadota the jury was actually impaneled and sworn. The [Kadota]opinion’s statement of the issue, however, implies that a jury case is brought to trial ‘when the parties commence the examination of prospective jurors.’ [Citation.]” (Santamarina, supra, at p. 765, fn. 3, quoting Kadota, at p. 195.) Here, the parties commenced the examination of prospective jurors before the five-year statutory period had expired. The subsequent mistrial was precipitated by a problem in the jury pool, and not by Cohen or her counsel.
As discussed, a mistrial was declared on that same day as the result of a jury pool problem.
Code of Civil Procedure section 583, subdivision (b) was subsequently repealed. Relevant portions of the statute were reenacted as Code of Civil Procedure section 583.310. (Cal. Law Revision Com. com., 16 West’s Ann. Code Civ. Proc. (2008 supp.) foll. § 583.310, p. 131; Stats. 1984, ch. 1705, § 5.)
We need not, however, determine whether commencing the examination of prospective jurors in this case caused the instant action to be “brought to trial” within the meaning of Code of Civil Procedure section 583.310. Even assuming the five-year deadline had not been met, the trial court’s determination that prosecution of the action was impossible, impracticable, or futile was not an abuse of discretion.
C. No Abuse of Discretion
HSW suggests that Cohen’s illness was the trial court’s only reason for continuing the trial date past the five-year statutory deadline. This does not appear to be the case. Both parties wanted Fabe’s criminal action and the ancillary probate matter concluded before this legal malpractice action was tried. Although a formal stay was never issued in this case, the case was delayed, at HSW’s request or with their concurrence, until November 1, 2004.
As discussed, in late January 2003, HSW requested that the February 24, 2003 trial date be vacated until after Fabe’s criminal trial was concluded. When Cohen subsequently requested a continuance of the July 12, 2004 trial date, HSW did not oppose the request, and agreed to stipulate to waive the five-year statutory period under Code of Civil Procedure section 583.310 provided the trial commenced by November 30, 2004.
There were sound reasons for allowing the criminal proceedings and probate matter to conclude before trying this legal malpractice action. There was, for example, a potential for inconsistent judicial determinations. Under the circumstances presented here, the trial court’s denial of HSW’s motion to dismiss was not an abuse of discretion. Where a trial court has discretionary power to decide an issue, we are not authorized to substitute our judgment for that of the trial court. [Citation.] Reversible abuse exists only if there is no reasonable basis for the trial court’s action, so that the trial court’s decision exceeds the bounds of reason. [Citations.]” (Sanchez v. City of Los Angeles, supra, 109 Cal.App.4th at p. 1271.) No abuse of discretion occurred.
DISPOSITION
The judgment is affirmed, as is the order denying the motion to dismiss pursuant to Code of Civil Procedure sections 583.310 and 583.360. HSW is awarded its costs on appeal.
We concur: BOREN, P. J. ASHMANN-GERST, J.