Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV803458
RUSHING, P.J.
This is the fourth major appellate chapter of a dispute originating some 11 years ago. The principal point of controversy is a claim by plaintiffs George R. Drummond, Rebecca Drummond, and Jesse Marion that their former attorney, Michael Desmarais, took too large a fee in connection with certain probate litigation in which he represented them. Desmarais counterclaimed for fees allegedly still due. The case was tried to a jury, which returned a verdict largely favorable to Desmarais. The trial court denied various motions by plaintiffs and entered judgment. Plaintiffs appeal, alluding to a host of supposed deficiencies in the proceedings. They fail to make a prima facie showing of reversible error with respect to any of them. Accordingly, we will affirm the judgment.
Background
We have recounted much of the background of this case in several earlier appeals. (See Estate of Drummond (Mar. 21, 2003, H023857) [nonpub. opn.] (Drummond I); Estate of Drummond (Jun. 20, 2005, H026373 & H026660) [nonpub. opn.] (Drummond II); Estate of Drummond (2007) 149 Cal.App.4th 46 (Drummond III).) Because plaintiffs’ opening brief does not contain an adequate statement of the principal facts, we will draw upon our prior opinions to establish the factual context of the present matter.
Plaintiffs are the children of George Marion Drummond, who died on August 28, 1998, leaving an estate worth several million dollars. (Drummond I, supra, H023856, [p. 3].) A few weeks before his death, decedent married Ok Yon Choe. (Ibid.) Apparently, he also executed a document purporting to bequeath his entire estate to her. (Ibid.) She petitioned the probate court to admit the document to probate as a will. (Ibid.) Plaintiffs filed a will contest on the ground that the will was not solemnized in accordance with statutory requirements. (Ibid.) Plaintiffs asserted a claim to two-thirds of the estate under the laws of intestate succession. (Ibid.)
On October 9, 1998, two of the three plaintiffs met with defendant Michael Desmarais and their then-attorney, James Rodriguez, to discuss the possibility of Desmarais representing their interests in the proceeding. (Drummond I, supra, H023856, [p. 3].) According to plaintiffs, Desmarais persuaded them, by means at least partly improper, to engage him on a contingent basis rather than at an hourly rate. (Ibid.) Among the alleged improper means was Desmarais’s supposedly taking Rodriguez aside and offering him a percentage of the fee in exchange for his support vis à vis his clients. (See ibid.)
Each of the plaintiffs ultimately executed an agreement, prepared by Desmarais, engaging his then firm, Temmerman & Desmarais, LLP, “to prosecute any and all claims Client may have to the estate of George Marion Drummond, deceased, including filing a will contest....” It required plaintiffs to pay fees “only if Attorneys are successful in actually obtaining a recovery for Client.” In that event, the fee would be “a percentage of the net amount recovered for Client,” with the percentage ranging from 20 to 35, depending on the proximity of “recover[y]” to the date of “trial.” The agreement further stated, “ ‘Net amount recovered’ means the net amount of property recovered by settlement, judgment, or arbitration, after deducting the amount of expenses incurred in connection with prosecution of the action as described below.”
“The fee to be paid to Attorneys will be a percentage of the net amount recovered for Client according to the following schedule: [¶] (a) Twenty percent (20%) of the net amount recovered before the date that is seven (7) days before commencement of trial. [¶] (b) Thirty percent (30%) of the net amount recovered after the date that is seven (7) days or less before commencement of trial. [¶] (c) Thirty-five percent (35%) of all the net amount recovered after trial when a notice of appeal is filed by any party to the action.”
There was never a contested trial of any factual issue concerning the will contest, because the probate court granted the children’s motion for judgment on the pleadings. (Drummond I, supra, H023587, [p. 4].) At the same hearing, plaintiffs concede, the court took testimony bearing on the widow’s claim for a family allowance. Desmarais would later insist that this hearing constituted a “trial” entitling him to the 35 percent rate set forth in the plea agreement.
The widow appealed from the order denying probate to the proffered will. (Drummond I, supra, H023587 [p. 4].) While the appeal was pending, the parties reached a settlement under which plaintiffs would receive 52 percent of the estate and the widow the remaining 48 percent. (Ibid.) Thereafter the probate court allowed the distribution of various sums, which we described in some detail in previous opinions. (See id. [pp. 5-7].) For purposes of the present appeal it may be accepted that the effect of these distributions was to allow Desmarais a fee amounting to 35 percent of plaintiffs’ share of the estate before taxes.
After various other proceedings no longer relevant, plaintiffs brought this action against Desmarais, his erstwhile firm, and Rodriguez, alleging in essence that defendants secured plaintiffs’ assent to the fee agreement by wrongful means, committed various breaches of duty, and ultimately “abandoned” plaintiffs, with the result that the fee agreement was unenforceable. The complaint characterized the fee agreement as “unconscionable” and defendants’ fees as “exorbitant,” though no factual foundation for these characterizations was set forth. It is not immediately apparent whether the claim of unconscionability was ever developed, but by the time of trial the claim of excessive fees had been distilled to the contentions that under the terms of the agreement (1) the “net amount recovered” was the sum actually distributed to plaintiffs, and thus required the deduction of taxes before Desmarais’s fee was calculated; and (2) his fee should have been limited to 20 percent of the recovery, because there had been no “trial” as contemplated by the agreement. Desmarais apparently met these allegations by testifying that at the meeting culminating in the fee agreement, he told plaintiffs that he viewed “trial” as meaning any evidentiary hearing. He also contended that plaintiffs had suffered no damage from the calculation of fees against the pre-tax estate because that approach produced a tax savings that offset any harm plaintiffs otherwise suffered.
Although it is somewhat difficult to ascertain the precise manner in which each claim was ultimately determined, it appears that the trial court granted certain dispositive motions in defendants’ favor and submitted other claims to the jury with a special verdict. The jury found against plaintiffs on all issues, with one exception: It found that Desmarais had breached his fiduciary duties to plaintiffs, but then found that this was not “a substantial factor in causing harm to the Drummonds.” The court entered judgment decreeing that plaintiffs would take nothing on their complaint and Desmarais would recover $157,494.50 on his cross-complaint for unpaid fees. After the court denied motions for new trial or to vacate the judgment, plaintiffs filed this appeal.
I. Deficient Brief & Appendix
There is no question that the opening brief is woefully deficient. It is pervaded by countless violations of the rule, discussed in more detail below, that factual assertions must be accompanied by citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Almost as bad is the recurring failure to stick to the point—any point. Scarcely a paragraph can be found that proceeds in a logical or linear fashion. Sometimes irrelevant detail is injected for no apparent purpose. More often, an argument on one point is undertaken, but has scarcely begun to unfold when the brief spins off on some other subject at best tangentially related to the original point. The whole resembles less a coherent picture than a jigsaw puzzle whose pieces have been jammed together in whatever order they were plucked out of the box.
About two weeks after plaintiffs filed their opening brief, defendants brought a motion to strike it, to dismiss the appeal, and for other relief, based upon asserted defects in the brief. We deferred consideration of the motion to our determination on the merits. Our disposition of the appeal renders the motion moot.
For example, plaintiffs assert under a separate heading that “The trial court ruled Fle[tc]her v. Davis (2004) 33 Cal.4th 61, did not apply because it is a contingency fee agreement versus an hourly.” No procedural context, let alone citation to the record, is supplied. There is not even an unequivocal assertion of error. The rest of the discussion consists in its entirety of the following remarkably noncommittal comments: “Whether the rule set forth in Fletcher applies to contingency fees, of course, is an open question. It is suggested that this case demonstrates why it should.”
The appendix submitted by plaintiffs is also grossly defective. First, there is no attempt to confine it to the trial court record. About half of it consists of pleadings from other cases. There are only two ways these materials can be properly placed before this court: (1) By showing that they were part of the record below, or were otherwise properly before the trial court, as by request for judicial notice of the relevant files; or (2) by a request for judicial notice addressed to this court. We cannot tell whether a request for judicial notice was made below, let alone whether it was granted, because the appendix does not comply with the requirement that the first volume be preceded by indeces to the entire appendix. (Cal. Rules of Court, rules 8.124(d)(1), 8.144(b)(1).) Instead each volume is prefaced by an index covering only that volume. The result is an 1800-page haystack through which plaintiffs’ counsel apparently expects us to search for relevant needles. We will not do so.
Worse than the inclusion of pleadings from other matters is the inclusion of various letters, invoices, intra-office memoranda, and other evidentiary documents for which no foundation whatever is laid. The function of an appendix is the same as that of the clerk’s transcript in lieu of which it serves: to place before the reviewing court “[a] record of the written documents from the superior court proceedings....” (Cal. Rules of Court, rule 8.120(a)(1), italics added.) “Filing an appendix constitutes a representation that the appendix consists of accurate copies of documents in the superior court file.” (Cal. Rules of Court, rule 8.124(g), italics added.) Obviously the materials at issue here are not “accurate copies of documents in the superior court file.” If they were exhibits at trial, accurate copies would include exhibit labels showing that they were offered and whether they were admitted into evidence. If they were before the trial court as attachments to other materials, such as motion papers, accurate copies would include the papers to which they were attached. Plaintiffs’ pervasive violation of the governing rules of court has deprived these materials of any value whatever for purposes of appellate review.
II. Interpretation of Fee Contract
Plaintiffs contend that the trial court erred by finding the contingency fee contract ambiguous and submitting the question of its meaning to the jury. No record citation is provided for any of the relevant proceedings or for any of the factual assertions made in support of the argument. This omission violates a basic rule of appellate procedure. (Cal. Rules of Court, rule 8.204(a)(1)(C) [any appellate brief must “[s]upport any reference to a matter in the record by a citation to the volume and the page number of the record where the matter appears”].) As applied to an appellant’s opening brief, this rule may be viewed as a particularization of the fundamental principle that “[a]ppellants hav[e] the burden of showing error,” such that it is “incumbent on them to make it affirmatively appear that error was committed.” (County Nat. Bank & Trust Co. of Santa Barbara v. Sheppard (1955) 136 Cal.App.2d 205, 223.) Appellate courts “do not search the record to find error.” (Calada Materials Co. v. Collins (1960) 184 Cal.App.2d 250, 254.) Rather “[i]t is the duty of counsel to refer the reviewing court to the portion of the record to which he objects and to show that the appellant was prejudiced thereby.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) “[A]n appellate court may disregard any factual contention not supported by a proper citation to the record [citations].” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.)
Even overlooking these deficiencies, plaintiffs fail to present a facially sufficient argument for reversal. First they assert that the trial court erred by finding ambiguity in the terms “trial” and “net amount recovered,” as used in the fee contract. In plaintiffs’ view, apparently, “trial” could only mean a contested evidentiary hearing on the will contest, an event that never occurred; and “net amount recovered” could only mean the amount actually distributed to plaintiffs after payment of estate taxes and, apparently, all other costs of estate administration.
Plaintiffs fail to establish that “net amount recovered” unambiguously bore the meaning they attribute to it. First they suggest some sort of binding construction has been given to this phrase by judicial decisions. But the construction of a phrase in one factual context may not be the correct construction of the same phrase in another factual context. The question here was what plaintiffs and defendants meant by the terms at issue, not what some other parties meant, or were found to mean, in some other situation. None of the cited cases presents a factually similar context, and none of them supports plaintiffs’ supposition that their interpretation is the only one the contract could reasonably bear. (See Grossman v. Davis (1994) 28 Cal.App.4th 1833 [question was whether a civil action in which judgment only partially satisfied constituted unfinished business for purposes of law firm dissolution]; Cleveland v. Glassell (1931) 117 Cal.App. 713, 715 [“ ‘The net proceeds of a sale of land is what remains of the gross proceeds after paying the expenses of the sale.’ ”]; id. at pp. 715-716 [“The word ‘net’ is defined as ‘clear of anything extraneous with all deductions (such as charges, expenses, discounts, commissions, taxes, etc.) made.’ ”]; Mahoney v. Sharff (1961) 191 Cal.App.2d 191, 194 [allocation of debts to husband in marital dissolution proceeding was not part of “amount recovered” (or “recovery”) by wife for purposes of her contingent fee agreement with her attorney]; id. at p. 199 [layperson would not understand quoted terms to include “anything as intangible as the release of a community indebtedness, as to which, although liable, she might never be called upon to pay”]; Estate of Kerr (1966) 63 Cal.2d 875, 878 [question was whether contingent fee agreement was statutorily invalid; agreement contained phrase “net recovery,” but meaning not contested]; Sayble v. Feinman (1978) 76 Cal.App.3d 509, 511 [question was how to apply fee agreement granting a percentage of “any money recovered in this matter” to a settlement granting plaintiff a lump sum plus lifetime annuity payable monthly]; id. at pp. 514-515 [court acknowledged that “net recovery” might be ambiguous in context, but if so must be construed to favor the client in view of several factors including absurdity of result produced by attorneys’ reading]; Schneider v. Kaiser Foundation Hospital (1989) 215 Cal.App.3d 1311, 1317, disapproved on another point in Moncharsh v. Heily & Blasé (1992) 3 Cal.4th 1, 27 [question was how to determine “ ‘total value’ ” of periodic payments under statute regulating attorney fees in medical malpractice cases].)
None of these cases resembles the facts presented here. Elsewhere in their brief, however, plaintiffs cite Dalzell v. State Bar of Cal. (1936) 6 Cal.2d 433, where an attorney’s disbarment was predicated on his retention of excessive sums from his clients’ recovery out of a probate estate. Under his contract with the clients he was engaged “to collect [each client’s] interest” in the estate, and was allowed a fee consisting of a percentage of “the amount recovered.” (Id. at pp. 434-435.) After securing a judgment for some $18,000 and receiving various partial payments, he paid himself one-quarter of that amount plus additional sums for various services he apparently deemed extrinsic to the contract. (Id. at pp. 435-436.) Ultimately he received some $7,000 out of about $12,000 collected. (Id. at pp. 437-438.) In ordering his disbarment, the Supreme Court emphasized that he was hired to “collect” his clients’ shares of the estate, and concluded that the contract could “only be interpreted to warrant the retention by petitioner of 25 per cent. of the amount collected by or realized for his clients.” (Id. at p. 438.)
For present purposes, all these cases establish is that (1) “net” usually refers to an amount remaining after the subtraction of certain other amounts, such as expenses, and (2) “recovery” generally means money actually obtained and not merely sums due or owing. These cases neither decide, not provide strong authority by analogy, that a contingent fee calculated on “net amount recovered” in a will contest necessarily contemplates the deduction of estate taxes before the fee is determined. We do not find that proposition self-evident, and plaintiffs have offered nothing sufficient to persuade us that the trial court erred in its treatment of the issue.
Plaintiffs fare no better with their contention that a “trial” could not properly be found to have taken place when the will contest settled, and that defendants therefore used an excessive rate in calculating their fee. Plaintiffs allude to numerous grounds on which this finding might be criticized, but we find no adequate prima facie demonstration of error anywhere in their brief. At its heart the argument seems to be simply that the hearing cited by Desmarais as a trial was, self-evidently and as a matter of law, not a trial. It is true that in a typical civil action, “trial” generally refers to a single event. Civil matters may be demarcated into three phases: pretrial proceedings, trial, and post-trial proceedings. The trial is typically the only point at which a finder of fact hears evidence and decides issues of fact. But a probate matter may involve a multitude of hearings, many of them evidentiary in character. Here the agreement apparently contemplated that defendants’ chief assignment was to contest the claims of the decedent’s widow under a purported will she offered for probate. According to plaintiffs, the probate court refused to admit the will to probate, after at least two hearings, for lack of due execution. Plaintiffs offer no coherent reason to question the trial court’s ruling that the application of the term “trial” in this context presented an ambiguity requiring construction of the contract.
Plaintiffs also offer a novel argument to the apparent effect that if the fee contract was ambiguous, then it violated Business and Professions Code section 6147 (§ 6147), which declares “voidable” any contingent fee agreement that fails to “include” certain terms. (§ 6147, subds. (b), (a).) Although plaintiffs’ argument is exceedingly difficult to follow, it appears to depend on the premise that if a term in a fee contract is ambiguous, it has not been “included” in the contract for purposes of the statute. We see no foundation for this supposition in the statutory language or elsewhere. Ambiguity and uncertainty can arise from even the most comprehensive and carefully drawn instrument. We doubt that the Legislature intended to invalidate all contingent fee contracts found to exhibit this common failing. In any event plaintiffs have made no attempt to substantiate the premise, and we must therefore reject the conclusion.
Plaintiffs also propose some ill-defined rule derived from the confluence of section 6147, the parol evidence rule, and the statute of frauds. The intended upshot may be that the court erred in admitting extrinsic evidence because section 6147 required the fee contract itself—not a mere memorandum—to be in writing, and in such a case parol (extrinsic) evidence is particularly improper. Thus plaintiffs suggest that section 6147 is akin to the statute of frauds—indeed, is “stronger” and “larger” than the statute of frauds—and that where a writing is required by the statute of frauds, uncertainties in the essential terms of the agreement cannot be resolved by evidence outside the writing. For this point they cite Sterling v. Taylor (2007) 40 Cal.4th 757 (Sterling). But the holding in that case rested on the rationale not that extrinsic evidence was inadmissible, but that the extrinsic evidence offered there was “at odds” with the written memorandum on which the plaintiff relied to avoid the statute of frauds. (Id. at p. 775.) Given this conflict, the evidence before the court was “insufficient to show with reasonable certainty that the parties understood and agreed to the price alleged by plaintiffs.” (Ibid.) Plaintiffs may believe that the evidence here was likewise insufficient, but they have not properly tendered that issue, let alone met the burden it entails. (See pt. III, post). Their attempt to secure reversal based on some ill-defined rule extracted from a mélange of Sterling, section 6147, the statute of frauds, and the parol evidence rule, is unavailing.
Plaintiffs remark in passing that “[t]he trial court improperly instructed the jury on the issue as well.” They do not direct us to the challenged instruction, let alone attempt to show how it was improper. Obviously we have no duty to address such a vague and undeveloped claim of error, and we decline to do so. (See Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th 511, 526, fn. 9, quoting 1119 Delaware v. Continental Land Title Co. (1993) 16 Cal.App.4th 992, 1004 [“A ‘passing reference’ in a brief does not suffice to establish a legal argument.]; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [“We will not develop the appellants’ arguments for them”]; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.”]; Morris v. Associated Securities, Inc. (1965) 232 Cal.App.2d 220, 231 [“A point suggested by appellant’s counsel, with no supporting arguments or authority, will be deemed to be without foundation and require no discussion.”]; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [“When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.”].)
Later in the brief, however, plaintiffs reassert the claim of instructional error under a heading devoted to that subject. Here they complain of an instruction that told jurors their determination of the meaning of “net amount recovered” and “trial” must depend on whether Desmarais, “at the time the fee agreement was discussed,... told the Drummonds,” first, “that his attorney’s fees would be calculated before estate taxes were deducted,” and second, “that ‘trial’ included a hearing where evidence was taken, on any matter.” Plaintiffs hint at a genuine deficiency in this instruction, albeit obliquely, when they assert that it “suggested that all Desmarais had to do at any time was tell the Drummonds what ‘trial’ and ‘net amount recovered’ meant and they would be bound by it.” (Italics added.) They allude to the same deficiency somewhat more directly in another section of their brief, where they say that the instruction told the jury to accept Desmarais’s interpretation if he “told the Drummonds (not necessarily on 10/9/98) that ‘trial’ meant evidentiary hearing....” (Italics added.)
This argument appears under the heading, “The Court Committed Numerous Instructional Errors.” But while plaintiffs allude to supposed instructional errors other than the one discussed in the text, none of these points are adequately presented to require appellate review. Thus they refer to three of their own proposed instructions that the trial court refused to give, but offer no argument as to how and why that refusal should be viewed as error. They allude to an instruction on “substantial performance,” but without citing the record or presenting any argument. These are mere suggestions of error, which we will not address. (County Nat. Bank & Trust Co. of Santa Barbara v. Sheppard, supra, 136 Cal.App.2d 205, 223 [“Appellants having the burden of showing error, it was incumbent on them to make it affirmatively appear that error was committed.”].) Plaintiffs attempt to mount a more pointed attack in their reply brief, but such a belated presentation will ordinarily be disregarded. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26, quoting 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 616, p. 648 [“ ‘points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before’ ”].) We see no basis for an exception here.
The instruction is indeed ambiguous in this respect. If Desmarais told plaintiffs at the time of contract formation what he understood the disputed terms to mean, such that plaintiffs knew what he thought those terms meant when they entered into the agreement, then that meaning would, at least in the absence of some extraordinary circumstance not suggested here, bind plaintiffs. This is the logical effect of Civil Code section 1649, which provides, “If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.” (Italics added.) With respect to the payment of fees, plaintiffs were the promisors and Desmarais the promisee. Thus, if they knew what he thought the terms meant when they entered the agreement, that meaning would govern their relations under the contract.
Indeed counsel for plaintiffs seemed to concede this point at trial: “THE COURT:.... [M]y understanding of parol evidence is when people talk about what it [i.e., a term of the contract] meant... then that becomes, that’s the whole purpose of parol evidence, and then a trier of fact could believe— [¶] MR. MORRISSEY: No question. You’re right. [¶] THE COURT: So that’s what Mr. Desmarais testified to. He said I told them my opinion. I told them what trial meant. I told them that it meant a hearing. I told them that it means family allowance. I told them all of this. Now, if you believe that, then how do you argue that it’s not the definition? [¶] MR. MORRISSEY: I think you’re right.”
The instruction, however, fails to plainly state that the knowledge triggering this rule must exist at the time of contract formation. The instruction refers instead to “the time the fee agreement was discussed.” Logically this could convey the meaning that Desmarais’s interpretation would bind plaintiffs even if it was only conveyed to them during some “discuss[ion]” of the agreement after the contract was formed. This of course would be incorrect. Any later expression by him might be evidence of what he thought the contract meant, but it would not be evidence of what plaintiffs thought it meant, and it would in no sense bind them.
Plaintiffs, however, offer no reason to conclude that they were prejudiced by this ambiguity. They make no attempt to show that there was any factual basis for the jury to apply the instruction in the manner just described. To have done so the jury would seemingly have to find that there had been some post-formation “discuss[ion]” of the fee contract in which Desmarais communicated his interpretation of these terms to plaintiffs. We are directed to no evidence of such discussions. Plaintiffs do not even claim that such discussions occurred, or might have been found to have occurred. Their argument simply assumes that if the instruction was a defective statement of the law, reversal must follow. In fact, of course, plaintiffs can only succeed on appeal by affirmatively demonstrating not only error but “resulting prejudice.” (Paterno v. State of California, supra, 74 Cal.App.4th 68, 105; see id. at p. 106 [“the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice”]; id. at p. 108 [appellant must offer “prejudice analysis” to “answer the constitutionally compelled question facing an appellate court, namely, assuming there was error, so what?”]; id. at p. 106 [“our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument”]; Fox v. Erickson (1950) 99 Cal.App.2d 740, 741 [“It is the duty of counsel to refer the reviewing court to the portion of the record to which he objects and to show that the appellant was prejudiced thereby.”].) Plaintiffs have failed to make the required showing, or even attempt it.
Plaintiffs have demonstrated no error in the trial court’s treatment of the interpretational issues.
Plaintiffs also assert that the fee contract “as interpreted or explained by Desmarais” is unconscionable. Although they characterize their argument as “simple and legally infallible,” we find it both impenetrable and, given the complete lack of supporting citations to either the record or pertinent authority, unsustainable. They do not even allude to the elements of unconscionability.
III. Verdict and Findings Unsupported by the Evidence
A. Introduction
One section of the brief is entitled, “The Special Verdict Of The Jury And/Or Implied Findings Attendant Therewith Are Not Supported By Substantial Evidence.” This is followed by two more sections challenging the sufficiency of the evidence to sustain specific findings. Plaintiffs have not made the threshold showing necessary to raise such a challenge.
As we recently wrote, the “governing standard of review” for challenges of this kind “has been settled for decades if not centuries, and yet a staggering proportion of appellate advocates continue to overlook, misunderstand, or ignore it. We recently summarized the relevant principles in Huong Que, Inc. v. Luu [(2007)] 150 Cal.App.4th 400. 409,...: ‘An appellate court “ ‘must presume that the record contains evidence to support every finding of fact....’ ” (In re Marriage of Fink (1979) 25 Cal.3d 877, 887..., italics added; see Brown v. World Church (1969) 272 Cal.App.2d 684, 690... [“ ‘a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact’ ”].) It is the appellant’s burden, not the court’s, to identify and establish deficiencies in the evidence. (Brown v. World Church, supra, 272 Cal.App.2d 684, 690[, 77 Cal.Rptr. 669]....) This burden is a “daunting” one. (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329....) ‘A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]’ (Roemer v. Pappas (1988) 203 Cal.App.3d 201, 208..., italics added.) ‘[W]hen an appellant urges the insufficiency of the evidence to support the findings it is his duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.’ (Hickson v. Thielman (1956) 147 Cal.App.2d 11, 14-15....)” (City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 484.)
Plaintiffs’ brief contains nothing approaching the required demonstration. Nowhere does it set forth a fair and adequate summary of the evidence, favorable or unfavorable, bearing on the challenged findings. Many of the factual assertions on which it appears to rest are not accompanied by citations to the record. Plaintiffs have thus failed to tender a cognizable challenge to the sufficiency of the evidence.
Counsel for plaintiffs introduces this part of their brief by writing, “There is no reason to assume that the jury found against the Drummonds on the meaning of the contract.” On the contrary, there is every reason not only to “assume” that jurors made such a finding, but to formally presume that they did. (See Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557 [“[T]he trial court’s judgment is presumptively correct, such that error must be affirmatively demonstrated, and where the record is silent the reviewing court will indulge all reasonable inferences in support of the judgment.”]; Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [court will indulge “[a]ll intendments and presumptions” in support of judgment on matters as to which record is silent].) If the jurors were not asked to make an express finding about “the meaning of the contract,” then they are presumed to have made a finding on that issue; that implied finding is presumed to support the judgment and whatever express findings they did make; and it is presumed to be supported by substantial evidence. Such a finding can be successfully attacked on appeal only by a very clear showing that it was irrational—e.g., it contradicted other findings—, or that the evidence supporting it was insubstantial, or that it was infected with some other error, such as the erroneous admission or exclusion of evidence or misinstruction of the jury. Having made none of these showings, plaintiffs’ challenge to the posited finding cannot prevail.
B. Meaning of “Trial”
Nor do we find anything in the brief suggesting that the challenge to the sufficiency of the evidence might have merit if properly presented. The first finding challenged is that the parties to the contract agreed that “trial” meant anything other than an evidentiary hearing on the will contest itself. Yet plaintiffs impliedly concede that Desmarais testified that he told plaintiffs as much. If this testimony was credited then it would in all likelihood be fatal to plaintiffs’ interpretation of the contract. (See Civ. Code, § 1649.) Implicitly recognizing this, plaintiffs impugn Desmarais’s credibility, stating that he “testified falsely and contradictorily,” that he was “not worthy of belief,” that his testimony was “weak... and... a complete contradiction to his prior testimony,” and that his “interpretation of [the] fee agreement... is ludicrous.” (See pt. VI, post, discussing plaintiffs’ accusation of perjury.) These assertions culminate in the declaration in a footnote that Desmarais’s “naked and lonely testimony” did not even amount to the “scintilla of evidence” that cases have contrasted with substantial evidence. (See Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) But before we could overturn a jury’s verdict on the ground that the testimony on which it rested was unworthy of credence, we would require the clearest possible showing that no reasonable juror could have credited that testimony. Far from making such a showing, plaintiffs have shirked their duty to marshal the relevant evidence or to provide any kind of bridge from their contentions to the record. Their brief affords absolutely no basis to accept their characterization of the facts and evidence except their own say-so. That is the opposite of a clear showing. It is no showing at all.
C. Substantial Performance
Plaintiffs assert that there was insufficient evidence to establish “substantial performance.” Instead of seeking to explain or substantiate this assertion, however, the brief veers immediately into the question whether “substantial performance was... a question that should have been submitted to the jury.” No adequate presentation is made on either point.
The entire sentence is, “As has been pointed out ad nauseum [sic] in this brief, substantial performance was not a question that should have been submitted to the jury [see, Fracasse v. Brent (1972) 6 Cal.3d 784].” We see only one other mention of substantial performance in the brief; it comes six pages after the quoted statement and is, if anything, less illuminating as to plaintiffs’ contentions. Nor do we find enlightenment in the cited case, which does not discuss or even mention “substantial performance.” (See Fracasse v. Brent, supra, 6 Cal.3d 784.)
D. Legal Cause
Plaintiffs challenge “the jury’s finding that Desmarais’ breach of fiduciary duty was not a legal cause of the Drummonds’ harm.” The argument is set forth in three sentences of which only one goes to the actual evidence: “That the Drummonds were damaged by Desmarais’ representation of the [sic] Richard Lambie, the Administrator, is without question.” Plaintiffs may well accept this true, but they have failed to make the showing necessary for this court to do likewise.
E. Outstanding Fees
Plaintiffs assert that the evidence was insufficient to sustain the jury’s finding that Desmarais had not been paid everything due him under the contract. This argument appears to rest on the premise that payments only became due as plaintiffs received distributions. No attempt is made to sustain this premise with the requisite marshaling of evidence.
F. Proof of Contract Damages
Plaintiffs next lump together what seem to be two distinct errors, “striking the testimony of David Koehler and refusing to judicially notice the tax table.” Neither of these goes to the sufficiency of the evidence; they appear to relate to a dispute over the measurement of damages and the necessity vel non of expert testimony as to the tax consequences of calculating Desmarais’s fee from what plaintiffs call the net rather than from the gross share of the estate allocated to them. Apparently plaintiffs had decided that no such testimony was necessary, and on that basis had withdrawn the relevant expert’s name from their pretrial designation of experts. It was on this basis, apparently, that the court disallowed his testimony at trial. As usual, plaintiffs seem to mingle several different criticisms of this ruling, none of which is spelled out or supported by the requisite citations to the record or to governing authority. One cavil appears to be that the subject matter of the barred testimony was fact, not opinion. The apparent implication is that plaintiffs were not required to designate the witness before trial as an expert. It is impossible from plaintiff’s presentation to confirm either the premise or the conclusion of this argument, or even its precise delineation.
Nor do plaintiffs present a cognizable issue about the court’s asserted refusal to permit the jury to consult the tax tables. They do not even provide a citation to the ruling itself, let alone to the foundational facts that might establish error.
G. Measure of Contract Damages; Mitigation; “Collateral Source”
Under the heading “Damage Claim,” plaintiffs attack the court’s ruling that, as they put it, “the proper method of computing damages would be to take the difference between what the Drummonds received and what they would have received had the fees been properly calculated.” On its face this ruling seems unexceptionable. The basic function of damages is to make the plaintiff whole, i.e., restore him to the position he would have occupied if not for the defendant’s actionable conduct. This seems precisely what the court’s formula would do. The incoherence of plaintiffs’ challenge is exemplified by their attempt to summarize the deficiencies in the court’s approach: “The problem with the court’s ruling is twofold [sic]. First, it violated the Collateral Source Rule. Second, it produces chaos, confusion and was in fact not doable and, third, it takes attorney fees into account.” (Italics in original.) By our count this is four assertions, not two. Whatever their number, none is adequately articulated or sufficiently substantiated to raise a cognizable issue on appeal.
Plaintiffs’ brief includes a table depicting their approach to damages. It assumes a resolution in their favor of both of the interpretational issues they raise, i.e., whether the percentage was to be the pretrial rate of 20 percent rather than the “trial” rate of 35 percent, and whether the fee was to be calculated on plaintiffs’ shares after taxes or before. It also assumes resolution in their favor of the third major substantive question they seem to be raising on appeal, which is whether the tax savings realized as a result of defendants’ calculating their fees before taxes should be considered in mitigation of plaintiffs’ damages. Plaintiffs seem to concede in their reply brief that if this question is answered affirmatively, they were not harmed by defendants’ assessing their fees against plaintiffs’ pre-tax share. Thus counsel writes, “Respondents’ [sic] embroiled the Drummonds in a risky tax scheme so they could collect twice as much and the Drummonds escaped with what they would have received with no deduction.” (Italics added.)
“The damages as a result of the overcharge were properly computed as follows:
It is to address this issue, apparently, that plaintiffs allude to the collateral source rule, which bars evidence, in some circumstances, of compensation received by the plaintiff from certain independent sources. (See Anheuser-Busch, Inc. v. Starley (1946) 28 Cal.2d 347, 349.) But plaintiffs offer no cogent argument to support the application of that rule here. In their opening brief they merely cite several cases without explaining their supposed significance. None of them points unerringly to error here.
In Depalma v. Westland Software House (1990) 225 Cal.App.3d 1534, a doctor sued a computer vendor for selling him a computer system that did not perform as promised. The vendor sought to mitigate damages by showing that the respondent had gained certain tax benefits from the purchase and ownership of the system. The trial court excluded the evidence, and the vendor argued on appeal that this was a misapplication of the collateral source rule, which “has never been extended to breach of contract.” (Id. at p. 1538.) The reviewing court concluded that “tax benefits should not be considered as a mitigating factor in compensatory damage calculations for breach of contract.” (Id. at p. 1541.) It cited three reasons for this conclusion. The first was that federal tax benefits in situations of the type presented there will typically be recaptured by taxing authorities under the federal “tax benefit rule.” (Id. at pp. 1541-1544.) The second was that determining the value of tax benefits would typically be “speculative, time consuming, and confusing.” (Id. at pp. 1544-1545.) The third was that the proposed setoff would violate public policy because it would reduce the deterrent value of judgments for breach of contract and would in effect cause “taxpayers [to] subsidize those who have not fulfilled their contractual obligations....” (Id. at pp. 1545-1546.)
Plaintiffs make no attempt to show that these rationales apply here. The first—the tax benefit rule—might apply if the estate were suing defendants to recover the fees they deducted from it. It has no plain application to a suit to which the estate is not even a party, and from which it cannot benefit. Nor were the tax benefits here difficult to quantify at the time of the trial; they did not depend on future events, but had apparently already been realized. Certainly plaintiffs have not shown otherwise. Only the third rationale—that allowing mitigation on such a basis may be against sound policy—has any potential application here, and for it to justify reversal would require a far more concrete, detailed, germane, and well-substantiated demonstration from plaintiffs. As it is they have simply cited the case, filed a record, and left it for us to divine how the former might apply to the latter. We decline the implied invitation.
Plaintiffs’ other citations on this subject are even farther afield. In Philip Chang & Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, the court held that a seller of real estate was not entitled to prove the buyer’s increased rents to tenants in mitigation of the buyer’s damages for fraud. In Cox v. Superior Court (2002) 98 Cal.App.4th 670, the court held that a medical malpractice plaintiff was entitled to exclude evidence that the disability insurance payments he received were non-taxable. The chief if not sole rationales for this holding were that (1) the unpredictability of future tax consequences made such evidence too speculative for consideration, and (2) the statute allowing collateral source evidence in medical malpractice cases applied by its terms only to actual payments to the plaintiff, not other benefits received by him. (Id. at pp. 674-676.)
In their reply brief plaintiffs suggest that Fracasse v. Brent, supra, 6 Cal.3d 784, also rejects defendants’ supposed “collateral source arguments.” But it is plaintiffs who invoke the collateral source rule, not defendants, and plaintiffs who bear the burden on appeal of demonstrating that the trial court misapplied it, or more accurately, that the court applied an erroneous measure of damages. A mere passing allusion to Fracasse cannot assist them in this regard; that case contains no issue of, and does not mention, the collateral source rule.
Plaintiffs demonstrate no error in the findings, or in the court’s treatment of contract damages.
IV. Grant of Defendants’ Motions for Nonsuit
Plaintiffs contend that the trial court erred in granting defendants’ nonsuit on various grounds with respect to various theories of recovery or elements of damage. These claims, each of which is logically distinct, are presented in one great tangled mass of assertions, which it falls to us to unravel, if we can. This is neither our function nor our obligation.
As best we can discern plaintiffs’ arguments, the first is that the trial court erroneously granted nonsuit on a cause of action the gist of which was that Desmarais committed a tortious misrepresentation (i.e,. fraud) by telling plaintiffs that the value of the settlement he had negotiated was approximately equal to the value of any recovery they could otherwise expect after deducting the fees to which he would then be entitled. According to plaintiffs, who as usual supply no record citations, the court dismissed this claim on the ground that the jury could not find in plaintiffs’ favor without expert testimony “to prove damages and to prove the value, if any, of the ‘Marvin Claim.’ ” It appears from plaintiffs’ account that the court’s grant of nonsuit against this theory of recovery rested on the premise that plaintiffs could not prove they would have recovered more by litigation than they received from the settlement. This in turn, as we understand plaintiffs’ account, rested on at least two distinct and mutually independent rationales: (1) plaintiffs could not prove that the widow would not have eventually secured the admission of the contested will to probate; and (2) plaintiffs could not prove that the widow would not have offset any victory plaintiffs might gain in the will contest by recovering damages against the estate, on contractual or restitutional grounds, based upon events while she cohabited with the decedent.
Plaintiffs also assert that the trial court “ruled that... the Drummonds would have lost the appeal,” meaning that the order refusing to admit the will proffered by the widow would have been reversed on appeal, presumably resulting in its admission to probate, and obliteration of the plaintiffs’ claims. This supposed finding, say plaintiffs, flew in the face of this court’s decision in Crook v. Contreras (2002) 95 Cal.App.4th 1194, 1205, which held that a witness’s attestation to a testamentary instrument after the decedent’s death is insufficient to bring it into compliance with the requirements for admission to probate. We doubt the accuracy of plaintiffs’ characterization of the trial court’s ruling; in any event we cannot readily verify it without record citations. But even if the point were adequately tendered, which it plainly is not, it appears academic in light of the alternative rationale they attribute to the trial court, and do not adequately challenge.
According to plaintiffs, the trial court’s reasoning on the latter point rested on its supposition that the hypothetical outcome of the Marvin claim, i.e., if it had been litigated to judgment, would have to be established by expert testimony, and that since plaintiffs had no expert on that subject, they could not prevail on their claim. Plaintiffs assert in essence that the proper question was not the value of the Marvin claim (which they tacitly concede would be a subject of expert testimony) but its viability in fact, which would be established by a trial within a trial. That issue, they contend, would necessarily be resolved in their favor because the widow could not have proven an “oral transmutation” of the decedent’s separate property into community property.
We first observe that the underlying question—what would have happened to the Marvin claim if it had been litigated to judgment—was quintessentially hypothetical and, as such, as pure a matter of opinion as we can imagine. There is no suggestion that any lay witness could have given an opinion on this subject. Plaintiffs say only that the issue should have been resolved by trying “the case within the case.” This suggests something like Hamlet’s play within the play, wherein actors recreate the fratricide the hero seeks so deliberately to avenge. But it was not as if the widow and her attorneys could be dragooned into performing the function of the itinerant players in Hamlet, enacting the case-that-never-was before the jury in this case. They might be subpoenaed to testify, but they could not be required to act out parts. It would therefore be incumbent upon plaintiffs to establish by some other means how that case would have been resolved. Plaintiffs do not suggest how they could have done this without expert testimony. As usual, they merely cite a case and leave it to us to divine how they think it applies. But that case does not suggest that expert testimony is improper or even that it is unnecessary in this setting. Instead it finds an abuse of discretion in permitting experts to testify on the ultimate issue of how the underlying case would have come out. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 974.)
Plaintiffs do not even demonstrate the premise of their straitened argument, i.e., that the widow’s claim depended on a transmutation of separate property. A Marvin claim seeks to enforce rights between unmarried persons based on a contract or on equitable principles like unjust enrichment. (Marvin v. Marvin (1976) 18 Cal.3d 660, 665, 684, fn. 25; cf. Marvin v. Marvin (1981) 122 Cal.App.3d 871, 876; see Watkins v. Watkins (1983) 143 Cal.App.3d 651, 653-654.) “Transmutation” refers to a change in the character of property owned by one or both parties to a marriage. (In re Marriage of Campbell (1999) 74 Cal.App.4th 1058, 1062.) We will not plumb the record to ascertain the details of the widow’s theory as actually revealed by the evidence, or as imputed to her by plaintiffs. The brief contains nothing approaching a prima facie showing of reversible error.
V. Denial of Plaintiffs’ Motions for Nonsuit, JNOV, Vacation, New Trial
Plaintiffs contend that the trial court erred by denying their motions for nonsuit, judgment notwithstanding the verdict, vacation of judgment, and new trial. This again operates as the platform for a hodgepodge of assertions suggesting a large number of points but never gelling into a coherent argument. Once again plaintiffs fail to frame their argument in terms of prejudicial error, but simply reargue the merits of the case.
First they assert that the contingent fee contract ceased to be enforceable with the dissolution of the signatory law firm in 2000. No coherent argument is offered in support of this premise. They cite Fracasse v. Brent, supra, 6 Cal.3d 784, for the proposition that “an attorney under a contingency fee agreement may not collect the contingency fee if he is discharged, with or without cause, or in fact quits prior to fulfillment of the contract.” That case only half-supports the proposition thus attributed to it; the attorney there did not “quit,” but was affirmatively discharged by the client before any recovery had been obtained. (Id. at p. 786.)
Accepting arguendo plaintiffs’ statement of the rule, the conclusion they draw from it depends on two undemonstrated premises: that the dissolution of the firm constituted a “quit[ting]” from representation, and that the contract had not yet been “fulfill[ed]” when the dissolution occurred. No coherent or comprehensible attempt is made to substantiate either premise. With respect to the first—that the dissolution of Desmarais’s firm either effected its “discharge[]” or constituted a “quit[ting] prior to fulfillment of the contract”—the nearest thing plaintiffs offer to authority appears under another heading, some 22 pages later in the brief. There plaintiffs allude to rule 2-300 of the Rules of Professional Conduct, which imposes obligations on attorneys in connection with the “sale” of a law practice. No attempt is made to show that the dissolution here effected a “sale.” Plaintiffs do not even call it a sale. Their citation to this rule, which they understandably choose not to quote, is simply baffling.
Even more troubling is plaintiffs’ citation to a practice guide that impliedly contradicts the premise they are attempting to demonstrate. (Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group, rev. #1 2006), ¶ 10:362, p. 10-44.1 (Professional Responsibility).) In it, the subject of “Law Firm Break-Ups”—which is apparently what happened here—receives its own subchapter quite distinct from subchapters for “Termination by Client” (id. at p. 10-1), “Withdrawal (Termination) by Lawyer” (id. at p. 10-3), “Termination by Operation of Law” (id. at p. 10-28), and “Termination by Completion of Engagement” (id. at p. 10-30). Indeed, the authors indicate that “break-up” triggers notice obligations entirely distinct from those imposed by the rules of professional conduct in the event of “sale,” and arising from a distinct source. (See id. at ¶ 10:233, p. 10-33, citing inter alia, Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1156, fn. 9.) The authors expressly distinguish such a transaction from a sale. (Professional Responsibility, supra, ¶ 10:242, p. 10-35 (rev. #1 2008).) We see no suggestion by them that dissolution of a firm has any of the effects plaintiffs seek to predicate on it, i.e., discharge of the attorney originally engaged, abrogation of his fee contract, disgorgement of fees earned under that contract, or other termination or impairment of the engagement.
Plaintiffs’ argument may proceed from the wholly undemonstrated and facially unlikely notion that because Desmarais entered the contract in the name of his firm, the dissolution of the firm automatically deprived the contract of force and effected its termination. No attempt is made to marshal authorities concerning the succession of rights and obligations running to and from a partnership and its members upon dissolution. In their reply brief plaintiffs allude to the “simple rule argued at every stage of the proceeding... that when [the firm] dissolved the fee agreement was discharged.” This of course is not a rule but a legal conclusion, for which plaintiffs furnish no apparent authority. It would be surprising indeed if every dissolution of a law firm operated to automatically rescind every contract it had entered with its clients. Such a view seems particularly bizarre here, where there is no suggestion that plaintiffs entered the agreement with the intent to hire any attorney other than Desmarais. We do not mean to reach any conclusion on this issue; there is no occasion to do so, since the point is insufficiently tendered to require a determination by us. We observe only that it strikes us as very unlikely that plaintiffs could have carried it, even if they had made an adequate effort.
Plaintiffs’ failure to substantiate the second premise—that the dissolution occurred before “fulfillment of the contract”—is even more glaring since it appears that the recovery in question was obtained in 1999, a year before the firm dissolved. Plaintiffs baldly assert several times that defendants’ “job” was “not done.” They allude—mostly in their reply brief—to certain tasks remaining to be peformed during or after the dissolution. But allusions to supposed facts that might support an argument are not nearly enough to sustain an appeal. If the facts actually support a reversal, it was incumbent upon plaintiffs to affirmatively and unequivocally so demonstrate in their opening brief. (See People v. Smithey, supra, 20 Cal.4th 936, 1017, fn. 26.) They have not. That failure makes it unnecessary to address the undemonstrated legal premise that the dissolution of a signatory firm operates ipso facto as a withdrawal from representation which will limit recovery for services theretofore rendered to quantum meruit.
Plaintiffs further contend that Desmarais breached his fiduciary duties by failing to refund the fees upon the dissolution of the firm. They assert that the jury “found for [plaintiffs] on the breach of fiduciary duty claim,” and that having done so, the jury “should have stopped.” We are not directed to the finding itself; nor is there any cogent demonstration of the facts likely to have been found by the jury to constitute the breach. For purposes of appellate review, therefore, the factual predicate for the argument is entirely lacking.
Nor does the legal premise fare well. Plaintiffs cite a supposed rule, to which they claim there are “no exceptions,” that “an attorney may not recover under his contract when he breaches his fiduciary duty.” (Underlining removed.) But despite their claim that the “law is well-settled” on this point, they invite us only to “see generally” a treatise and several cases, none of which actually adopts the stated rule. In Anderson v. Eaton (1930) 211 Cal. 113, 114, the trial court found that the plaintiff attorney had fraudulently procured the contract on which he brought suit for fees. The reviewing court held that even without such a finding, the contract was “against public policy and void” because of the attorney’s patent representation of conflicting interests without adequate disclosure to his client. (Id. at pp. 116-117.) The case was distinguished in Burum v. State Comp. Ins. Fund (1947) 30 Cal.2d 575, which held that the contract at issue there was not void because any conflict of interest was potential, not actual.
In Goldstein v. Lees (1975) 46 Cal.App.3d 614, 618, the court did state broadly that “an attorney may not recover for services rendered if those services are rendered in contradiction to the requirements of professional responsibility.” It was careful, however, to state the actual question presented, and its resolution, much more narrowly: “The basic question presented in this case is whether or not a former counsel to a corporation can properly render legal services on behalf of a minority shareholder and director in a proxy fight designed to gain control of the same corporation under circumstances where the former counsel holds corporate confidences and secrets which are relevant to the proxy fight. We hold that such representation is improper and that a contract to provide such services is void for reasons of public policy.” (Id. at p. 617.)
In Jeffry v. Pounds (1977) 67 Cal.App.3d 6, 9, the court stated broadly that “acts of impropriety inconsistent with the character of the legal profession and incompatible with the faithful discharge of professional duties will prevent an attorney from recovering for his services.” However the court held the attorneys there “entitled to compensation for services supplied preceding the breach of professional conduct,” as against a client who had discharged them upon learning that they were representing his wife in marital dissolution proceedings. (Id. at p. 12.)
It will be observed that all of these cases involved breaches of the fundamental duties of fidelity and confidence, as reflected in the rules against representing conflicting interests. None of them supports the sweeping rule advocated by plaintiffs. Indeed, as plaintiffs acknowledge, this court recently rejected a categorical claim of forfeiture somewhat resembling plaintiffs’. In Sullivan v. Dorsa (2005) 128 Cal.App.4th 947, the would-be sellers under an aborted court-ordered sale of land contended that the attorneys for the referee had forfeited their right to fees by breaching their ethical duties to the sellers, or by participating in the referee’s supposed breaches of fiduciary duties to them. We rejected this contention on the ground, among others, that nothing in the record would compel the trial court to find the claimed breaches sufficiently grave to warrant a forfeiture of fees. (Id. at pp. 965-966.) Plaintiffs dismiss our discussion of the point as “dicta,” but make no attempt to show that it was ill-considered or should not be followed here. Nor do they address the case on which we principally relied, Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, where a client argued that he “owe[d] no attorney fees since the fee agreement did not meet the mandates of the Rules of Professional Conduct” in that the attorney failed to comply with rules governing joint representation of a corporation and its officers, directors, employees, or shareholders. (Id. at pp. 1004-1005.) While the court found the record insufficient to substantiate this argument, it also noted the absence of cited authority “standing for the proposition that a violation of a rule of professional conduct automatically precludes an attorney from obtaining fees.” (Id. at pp. 1005-1006.) Instead, it noted, the leading case on the subject “seems to suggest [that] there must be a serious violation of the attorney’s responsibilities before an attorney who violates an ethical rule is required to forfeit fees.” (Id. at p. 1006, citing Clark v. Millsap (1926) 197 Cal. 765, 785.) “On the record presented, we cannot ascertain if the purported violation of the rules was serious, if any act was inconsistent with the character of the profession, or if there was an irreconcilable conflict. We do not know if the interests of [the defendant] and [the corporation] diverged or if [the attorney] had obtained or would expect to obtain confidential information [that] might have been harmful to one client, but helpful to another. Thus, we cannot ascertain if the purported rule violation by [the attorney] was incompatible with the faithful discharge of her duties.” (Pringle v. La Chapelle, supra, at pp. 1006-1007.)
The situation here is at least as unsupportive of plaintiffs’ position as the one in Pringle was of the complaining client there. Plaintiffs have not even identified the conduct supposedly found by the jury to constitute a breach. Nor have they attempted to demonstrate that the posited breach was sufficiently serious to effect a forfeiture of the right to fees. They necessarily rely upon a categorical, automatic rule that all breaches of the rules of professional conduct will categorically forfeit any contractual right to fees. We find no such rule in the cited cases; nor do plaintiffs support it with an adequate argument from authority. We therefore reject it as a basis for reversal.
Plaintiffs also declaim at various points upon the impropriety of referral fees. These comments apparently refer to their contention that the attorney they initially engaged, James Rodriguez, was induced to betray their better interests by a promise from Demarais of a percentage of his fee. Here as elsewhere, critical factual assertions are made entirely without record support. We will not scour the record to determine the evidentiary foundation for, or legal effect of, plaintiffs’ free-floating assertions of wrongdoing by Rodriguez.
VI. Misconduct and Perjury
The final contention in plaintiff’s opening brief is that they were denied a fair trial by “the misconduct of counsel and Desmarais, including Desmarais’ perjury....” Although the point is so expressed in the heading, the only intelligible assertion made is that Desmarais committed perjury. In the reply brief the situation is reversed: the argumentative heading asserts only that “Desmarais[’s] misconduct prevented a fair trial,” but the brief goes on to cite two lengthy segments of transcript and a number of individual pages apparently supposed to reflect instances of misconduct by counsel as well as by Desmarais. Insofar as this introduces matter not set out in the opening brief, we will not consider it. We are therefore left only to consider plaintiffs’ attack on the supposedly mendacious character of Desmarais’s testimony.
The misconduct of a party’s attorney may furnish a basis for appellate reversal. (Mathew Zaheri Corp. v. New Motor Vehicle Bd. (1997) 55 Cal.App.4th 1305, 1314; Walling v. Kimball (1941) 17 Cal.2d 364, 368-370.) But plaintiffs identify no principle of law that would permit us to reverse a civil judgment based on a belief that a party committed perjury. (Cf. Smith v. Mitchell (1923) 64 Cal.App. 463, 469 [order granting new trial affirmed on ground, among others, that defendant procured perjured testimony].) Indeed they cite no pertinent authority at all. Nor do they adequately set forth the factual and evidentiary basis for such a claim. In the opening brief they merely refer us to a memorandum they filed in the trial court. This is not a proper practice. Nor do the cited pages adequately suggest grounds for appellate reversal.
Moreover plaintiffs’ claim of perjury is itself in direct conflict with the jury’s presumptive findings that Desmarais’s testimony was true. To have a chance of success on such a claim, plaintiffs would have to make an extremely compelling showing. (Cf. Smith v. Mitchell, supra, 64 Cal.App. at pp. 465-466 [witness filed affidavit stating that she testified falsely at defendant’s behest, and describing false testimony in detail].) Instead they simply cast aspersions on various matters to which Desmarais testified. Thus they devote most of a page to his “rehearsed and contrived testimony” about the risks presented by a New Jersey decision which, if followed here, might have led to admission of the widow’s will into probate.
Assertions of this nature are simply not the subject of appellate cognizance. Desmarais’s credibility was an issue for the jury, not for the trial court, and even less for this court. There might be an extraordinary case where the falsity of testimony could be made to appear so conclusively on appeal that it might be accepted as a fact. This is not such a case. It therefore furnishes no occasion for us to consider the legal ramifications of such a showing.
Plaintiffs have failed entirely to make a prima facie showing of reversible error.
Plaintiffs assert that “on retrial,” the trial court must “follow the collateral source rule, allow emotional distress damages and allow evidence of post-April 2, 2001 conduct.” They also assert an intention to amend their complaint on remand, and seek a ruling from us to facilitate that undertaking. These horses have, as the proverb says, left the barn. We therefore need not comment on them.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., DUFFY, J.
Elsewhere plaintiffs state in passing, “The special verdict was either repugnant or everything after question 7 is surplusage and either way the Drummonds were entitled to the requested relief.” This statement is entirely divorced from any description of the contents of the special verdict, or even a citation to it in the record. We should not have to, and will not, sleuth out the essence of, and basis for, a party’s arguments.
Some statements in the brief are simply unintelligible, e.g., “what is clear is [defendants’] acknowledgement that the attorney is getting more than was called for in the fee agreement the fraud in general because it refuses to properly calculate taxes when a portion of the true amount of fees are deducted.” Elsewhere we find the following presented as a complete paragraph: “Focusing the jury on what was said as opposed to what was agreed was error. It is not up to a particular party to dictate the terms of.” And here is a complete paragraph from the reply brief: “Bening [i.e., counsel for defendants] summed up Respondents’ arguments with such insight as ‘mush’ or ‘gobbidligook.’ Incantations one can hardly rebut! And while the marathon was more like an Iditarod, the references less than compelling.”
“Preliminary distribution: $1,476,755.68
“ X20% $ 295,351.13
“Monies improperly paid $ 684,584.61
“Monies Owed to the Drummonds $ 389,233.52 “ (On Initial Distribution) ”