Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. NC042813, Roy L. Paul, Judge.
Law Office of Randolph J. Brandelli and Randolph J. Brandelli for Defendant and Appellant.
John A. Bunnett for Plaintiff and Respondent.
MANELLA, J.
After judgment was entered in favor of respondent Michael M. Mann in his legal malpractice action against appellant Randolph J. Brandelli, the trial court denied Brandelli’s motion for judgment notwithstanding the verdict and granted in part and denied in part his motion for a new trial. Brandelli contends there is insufficient evidence to support Mann’s legal malpractice claim, and that the trial court erred in granting a new trial limited to Mann’s damages. We affirm.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
In February 2007, Mann hired Brandelli, an attorney, to contest amendments to a trust established by Mann’s mother, Jesse Kate Jacobs, who died in November 2006. Brandelli filed a petition to determine the validity of the trust amendments and recorded a lis pendens on Jacobs’ home, which the amended trust gave to Mann’s son, Mark. In June 2007, the probate court dismissed the petition due to deficiencies in it. After the petition was dismissed, the lis pendens was expunged, and Mark sold the home.
As appellant and Mark share a surname, we refer to Mark by his first name.
Brandelli filed a second petition and also sought to set aside the dismissal. In November 2007, the court declined to set aside the dismissal and sustained Mark’s demurrer to the second petition without leave to amend, concluding that it was time-barred. In February 2008, the probate court denied Brandelli’s motion for reconsideration of the order declining to aside the dismissal.
On November 17, 2008, Mann initiated the underlying action against Brandelli, asserting claims for professional negligence, breach of contract, intentional misrepresentation, breach of fiduciary duty, and constructive fraud. Following the trial, a jury found that Mark had exercised undue pressure on Jacobs to secure the amendments; that Brandelli engaged in legal malpractice in handling Mann’s case; and that Mann’s damages totaled $240,723.50.
On March 12, 2010, the trial court entered judgment in Mann’s favor in accordance with the jury’s special verdicts. In April 2010, Brandelli moved for judgment notwithstanding the verdict and for a new trial on all issues. On May 6, 2010, the trial court denied the motion for judgment notwithstanding the verdict, but granted a new trial limited to damages. On May 21, 2010, Brandelli noticed his appeal.
DISCUSSION
Brandelli contends the trial court erred in denying his motion for judgment notwithstanding the verdict and granting a new trial limited to damages. For the reasons discussed below, we affirm the rulings.
A. Propriety of Appeal
At the outset, we address Mann’s renewed contention that Brandelli’s appeal must be dismissed because it is taken from a nonappealable judgment. Mann originally raised this contention in a motion he filed prior to the submission of Brandelli’s opening brief. The motion was denied before Mann filed his respondent’s brief, which reasserts the contention. As the motion was summarily denied by a single justice of this court, the ruling does not constitute a binding determination. (Kowis v. Howard (1992) 3 Cal.4th 888, 900-901.) We may therefore revisit whether the appeal must be dismissed. (Department of Industrial Relations v. Nielsen Construction Co. (1996) 51 Cal.App.4th 1016, 1023 & fn. 6.)
The crux of Mann’s contention is that Brandelli’s notice of appeal refers only to the March 12, 2010 judgment, which is not appealable under the circumstances of this case. An appealable judgment or order is a jurisdictional requirement for an appeal. (Connell v. Superior Court (1997) 59 Cal.App.4th 382, 392.) Here, the denial of Brandelli’s motion for judgment notwithstanding the verdict was appealable by Brandelli(Saxena v. Goffney (2008) 159 Cal.App.4th 316, 323-324), as was the partial grant of his new trial motion (Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 329). However, the partial grant of a new trial also vacated the entire March 12, 2010 judgment, thereby rendering the judgment incapable of supporting an appeal in isolation from the rulings on Brandelli’s post-judgment motions. (See id. at pp. 329-330.) Mann thus argues that Brandelli has attempted to appeal from a nonappealable judgment, as his notice of appeal contains no express reference to the rulings on the post-judgment motions. In addition, he maintains that the latter rulings are now final for want of a timely appeal from them, and that Brandelli may not seek an appeal until judgment is entered following the new trial on damages. For the reasons explained below, we conclude that the appeal should not be dismissed.
Generally, notices of appeal “must be liberally construed.” (Cal. Rules of Court, rule 8.100(a)(2).) Under this rule, “a notice of appeal which specifies a nonappealable order but is timely with respect to an existing appealable order or judgment will be construed to apply to the latter judgment or order.” (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 669, italics deleted.) An instructive application of the rule is found in Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15 (Walker). There, the plaintiff’s notice of appeal referred solely to the denial of her motion for a new trial, which is not appealable, and did not mention the judgment against her, which had been entered before she filed her new trial motion. (Id. at pp. 19-20.) The defendant’s brief on appeal addressed her contentions on the merits, but also challenged the viability of the notice of appeal. (Id. at pp. 19-20, 21.) After the appellate court dismissed the appeal, our Supreme Court reversed, reasoning that the appellate court had failed to consider facts showing that the plaintiff had intended to appeal from the judgment and that the defendant would suffer no prejudice from the appeal. (Id. at pp. 18-19, 20-21.)
In view of Walker, we decline to dismiss Brandelli’s appeal. Although his notice of appeal does not refer to the May 6, 2010 rulings on the post-judgment motions, the documents he filed in connection with the notice establish his intent to challenge the rulings. (See Department of Industrial Relations v. Nielsen Construction Co., supra, 51 Cal.App.4th at p. 1024.) On May 28, 2010, shortly after Brandelli noticed his appeal, he filed a designation of record encompassing the post-judgment motions and the related proceedings. In addition, on June 11, 2010, he filed a case information statement in which he indicated -- by checking boxes -- that his appeal was from a judgment after a jury trial and “[a]n order after judgment.” These documents were filed within the 60-day period for taking an appeal from the post-judgment rulings triggered by the notice of entry of the rulings, which was served on May 6, 2010. Furthermore, Mann has failed to show that he would suffer prejudice from the appeal, as his brief addresses Brandelli’s challenges to the post-judgment rulings on their merits, and otherwise contains no discussion of prejudice.
We recognize that Brandelli checked the box for appealable post-judgment orders under Code of Civil Procedure section 904.1, subdivision (a)(2), rather than the box for appealable orders under Code of Civil Procedure section 904.1, subdivision (a)(4), which encompasses orders granting new trial motions and denying motions for judgment notwithstanding the verdict. However, Brandelli’s intent in checking the box is clear, as the rulings on Brandelli’s post-judgment motions were the trial court’s only post-judgment orders.
Mann’s reliance on Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212 is misplaced. There, following a jury trial, the court entered a judgment regarding the plaintiffs’ claims against two defendants. (Id. at p. 223.) The defendants then filed several motions for judgment notwithstanding the verdict regarding specific claims, and each defendant sought a new trial. (Id. at pp. 224-225.) After the court granted most of the motions for judgment notwithstanding the verdict and one of the new trial motions, it entered a second judgment based on its rulings regarding the motions for judgment notwithstanding the verdict. (Id. at p. 226.) The plaintiffs noticed an appeal from the second judgment that contained no reference to the grant of a new trial. (Ibid.) On appeal, the reviewing court examined the rulings on the motions for judgment notwithstanding the verdict, but concluded that it lacked jurisdiction to address the plaintiffs’ challenges to the new trial order. (Id. at pp. 239-240.) The court declined to “liberally construe[]” the notice, which referred to the second judgment without making “reasonably clear” that the appeal was also from the “separate and directly appealable” grant of new trial. (Ibid.) Here, as explained above, the notice makes no express reference to an appealable order or judgment, and the circumstances otherwise support a liberal construction of the notice that establishes our jurisdiction.
B. Post-judgment Motions
We turn to Brandelli’s contentions regarding the rulings on the post-judgment motions, which challenged the jury’s determinations that Brandelli’s alleged misconduct caused damages to Mann through the loss of a meritorious claim. The post-judgment motions challenged the sufficiency of the evidence regarding Mark’s exercise of undue influence and the award of damages. In addition, the new trial motion asserted juror misconduct and instructional error.
1. Standards of Review
Although motions for judgment notwithstanding the verdict and for a new trial constitute different procedures for “obtain[ing] a judgment contrary to the verdict rendered by the jury” (Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1602 (Teitel)), they serve different purposes (Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750 (Fountain Valley).) Motions for judgment notwithstanding the verdict permit a party to prevail when the evidence is legally insufficient to support the verdict, and thus are intended to be “‘dispositive’” motions. (Id. at p. 751.) In contrast, “the function of a new trial motion is to allow a reexamination of an issue of fact.” (Ibid, italics deleted.) Accordingly, “granting a new trial does not entail a victory for one side or the other. It simply means the reenactment of a process which may eventually yield a winner.” (Ibid., italics deleted.)
As motions for judgment notwithstanding the verdict potentially conclude litigation on a complaint or claim, the rules governing them are “strict” (Fountain Valley, supra, 67 Cal.App.4th at p. 750), and “[t]he trial court’s discretion in granting a motion for judgment notwithstanding the verdict is severely limited.” (Teitel, supra, 231 Cal.App.3d at p. 1603.) Generally, “‘“[i]f the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] ‘A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support 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.’ [Citation.]”’” (Id. at p. 1603, quoting Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877-878.) In reviewing the trial court’s ruling, we also examine the record for substantial evidence to support the verdict. (OCM Principal Opportunities Fund L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845.)
In contrast, new trial motions permit parties to challenge judgments on a variety of statutorily defined grounds (Code Civ. Proc., § 657). (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) Provided the party seeking a new trial complies with the statutorily-mandated procedures (see Mercer v. Perez (1968) 68 Cal.2d 104, 118), the trial court “has much wider latitude in deciding the motion [citation], which is reflected in an abuse of discretion standard when the ruling is reviewed by the appellate court” (Fountain Valley, supra, 67 Cal.App.4th at p. 751). In view of this latitude, “orders granting new trials are ‘infrequently reversed.’” (Ibid., quoting Mercer v. Perez, supra, 68 Cal.2d at p. 113.)
All further statutory citations are to the Code of Civil Procedure.
Here, the new trial motion asserted irregularity in the jury proceedings (§ 657, subd. (1)), jury misconduct through a verdict based on chance (§ 657, subd. (2), excessive damages (§ 657, subd. (5)), and insufficiency of the evidence (§ 657, subd. (6)).
2. Governing Principles
Generally, “[t]o state a cause of action for legal malpractice, a plaintiff must plead ‘(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.’” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179, quoting Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) Here, the key issues concern causation and the amount of damages.
Regarding causation, in a legal malpractice action, the plaintiff must show that “but for” the defendant’s professional negligence or breach of professional duties, “the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241, italics deleted.) When the plaintiff alleges that legal malpractice resulted in the loss of a meritorious claim, the presentation of proof ordinarily involves the so-called “‘trial-within-a-trial’” method. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 973.) This method was applied in the underlying trial in accordance with procedures to which both parties stipulated.
Regarding damages, the general rule is that the plaintiff is entitled “to be made whole.” (Smith v. Lewis (1975) 13 Cal.3d 349, 361, disapproved on another ground in In re Marriage of Brown (1976) 15 Cal.3d 838, 851, fn. 14.) Under this rule, when, as here, the plaintiff alleges that the attorney’s negligence lies in his failure to press a meritorious claim, the measure of damages is ordinarily “the value of the claim lost.” (Ibid.) In addition, the plaintiff may be entitled to recover court fees and costs incurred as the result of the malpractice. (Laird v. Blacker (1992) 2 Cal.4th 606, 612.)
3. Underlying Proceedings
As Brandelli advances intertwined contentions regarding the post-judgment motions, we recount the record regarding all the contentions at the same time.
a. Mann’s Evidence
At trial, Mann presented evidence supporting the following version of the underlying events: Mann has four children, including three sons, Mark, Scott, and Shaun. Mann had a good relationship with Jacobs, and cared for her as she aged and her health deteriorated. In the early 1990’s, Mann borrowed $10,000 from Jacobs through a loan secured by her house. Mann disclosed the loan to other family members, including Mark and Cynthia Mann, Scott’s wife. Mann made payments on the loan through 2002.
In 2001, Jacobs secured a $20,000 bank loan. Mann was unaware of the loan. He later heard from other family members that Mark had accused Mann of stealing the 2001 loan proceeds from Jacobs. According to Cynthia Mann, between 2001 and 2003, Mark told family members that Mann had stolen funds from Jacobs, apparently from a loan other than the loan that Jacobs had secured in the 1990’s.
Mann worked as a flooring installer until 2002, when he became an international tour guide. Upon undertaking the position, he sold his home near Jacobs’ house and engaged in international travel. As a result, he did not see Jacobs for long periods. He nonetheless made frequent phone calls to Jacobs, who was then in her late 80’s.
According to Mann, before he left in 2002, Jacobs created a trust that gave him all of her assets upon her death. He believed that Jacobs drafted the trust by herself. While Mann was traveling, he was unaware that Jacobs had created another trust in September 2002 and later amended it.
Jacobs’ living trust, dated September 25, 2002, contained provisions in Paragraph 6.9 regarding the distribution of the trust’s assets upon her death. In Paragraph 6.9(a), the trust stated that when Jacobs died, the trustee was to distribute $10,000 to each of Mann’s four children, including Mark. The trust further stated in Paragraph 6.9(c): “My Trustee shall next distribute the balance of my Trust Estate to [Mann]. [¶] My Trustee shall hold, manage, invest and distribute the balance of the Trust Estate in trust for [Mann] for his lifetime. During the term of this trust, my Trustee shall distribute income only.... [¶] Upon the death of [Mann], this trust shall terminate, and its assets and any undistributed income shall be distributed to [Mann’s four children].”
After Mann began travelling, Mark took up residence in Jacobs’ house. Mann testified that Mark’s wife had thrown him out of their house because Mark had a serious drug problem. Mann further testified that although Mark was a well-paid insurance salesperson, he refused to find his own separate residence.
According to Cynthia Mann, between 2002 and 2006, Jacobs declined physically and mentally. Mark made extensive changes to Jacobs’ house, and it became more difficult to contact Jacobs by phone. Shaun Mann, who then lived in Arizona, also testified that Jacobs became hard to reach by phone.
On February 25, 2003, Jacobs executed the first amendment to the 2002 trust, which modified Paragraph 6.9(c) “in its entirety” to read as follows: “My Trustee shall next distribute the balance of my Trust Estate to [Mann’s four children, including Mark] in equal, by value shares, share and share alike. [¶] [I] specifically make[] no provision for [Mann] in this Trust, not because of lack of love or affection, but because he is already adequately provided for.”
Scott Mann testified that in the final two years of Jacobs’ life, her mental faculties weakened and she confused her offspring; in addition, she became physically frail. On September 9, 2005, Jacobs executed the second amendment to the 2002 trust, which replaced Paragraph 6.9 “in its entirety.” As amended, Paragraph 6.9(a) provided for no gift to Mark, and otherwise increased the gifts to Mann’s other children to $15,000. Paragraph 6.9(b) stated: “My Trustee shall next distribute the balance of the Trust Estate to [Mark]. If [Mark] fails to survive until the final date of distribution, then his share shall be distributed to his spouse....” Paragraph 6.9(e) stated: “[I] specifically make[] no provision for [Mann] in this Trust, not because of lack of love or affection, but because he is already adequately provided for.”
Shortly before Jacobs’ death, Mann visited her in a hospice. She said, “Honey, I love you and I always have.” Later, when Mark entered the room, Jacobs told Mark, “I will never forgive you for what you did.” When Mann asked Mark to explain Jacobs’ remark, Mark said that Jacobs was angry at him for failing to drive her to see one of Mann’s children.
Scott Mann learned about the amendments to the 2002 trust after Jacobs’ died in November 2006. He confronted Mark, who initially denied driving Jacobs to the attorney who drafted the amendments. According to Scott, when he remarked that Jacobs was unable to drive, Mark “came clean” and admitted he had taken Jacobs to the attorney’s office.
Mann first discovered the 2002 trust and its amendments in December 2006. He was surprised by the amendments, including the provision in favor of Mark’s wife, whom Jacobs had disliked. Mann hired Brandelli, who impressed Mann during their first meeting. According to Mann, he would not have engaged Brandelli had he known that Brandelli had then been involved in only two probate cases.
Mann further testified that he gave Brandelli Jacobs’ original trust, together with the trust she created in 2002 and its amendments. At trial, Mann did not submit the original trust, which he testified Brandelli never returned to him.
On February 26, 2007, Brandelli filed a petition in probate against Mark, alleging that Jacobs was of unsound mind when she amended the 2002 trust and that Mark had exerted undue influence over Jacobs to secure the amendments. After Brandelli filed the petition and recorded the lis pendens regarding Jacobs’ house, the probate court published “notes” obliging Brandelli to cure technical deficiencies in the petition. When Brandelli repeatedly failed to correct the deficiencies and did not appear at a hearing, the probate court dismissed the petition. At some point, Mark sold the house.
Brandelli filed an amended petition, a motion for reconsideration challenging the ruling on the original petition (§ 1008), and a motion to set aside the dismissal (§ 473). The probate court dismissed the amended petition as time-barred under the pertinent statute of limitations, and denied the challenges to its rulings on the original petition. According to Mann, Brandelli declined to handle an appeal on his behalf.
Daniel Wilson, an attorney with expertise in probate law, testified that Brandelli’s performance in connection with Mann’s case fell below professional norms. As evidence of damages, Mann pointed to an appraisal of Jacobs’ house, which estimated that it was worth $275,000 in April 2008. Mann also submitted evidence that contrary to his legal services contract, Brandelli required him to pay $723.50 in filing fees, including a $320 fee to file the amended petition.
b. Brandelli’s Evidence
Brandelli testified that he undertook Mann’s case because it appeared to involve a valid claim. He believed that he made a reasonable attempt to cure the defects in the original petition by filing the second amended petition.
Larry Copenbarger, the attorney primarily responsible for the trust and its amendments, believed that he had met Mark in a professional capacity prior to August or September 2002, when Jacobs appeared at his office and asked him to prepare the trust. Mark accompanied Jacobs. According to Copenbarger, in creating the trust, Jacobs intended that following her death, Mann would receive only the income from her estate until his death, when the estate would be divided among his children. Copenbarger further testified that Jacobs appeared to be mentally competent at the time she requested the amendments to the trust. Although Mark brought Jacobs to Copenbarger, Copenbarger met privately with Jacobs. During their conversations, Jacobs said that she was angry at Mann, but Copenbarger could not recall whether this was Jacobs’ reason for making the amendments.
Lois Evers and her husband, Mark Cortesy, testified that they visited Jacobs in April 2006. According to Evers and Cortesy, Jacobs appeared to have sound mental faculties, although she was physically weak and relied on a walker. She told them that she was “disappointed” with Mann because he had taken some money from her. She also said that Mark was “very helpful” to her. Victoria Evers, Jacobs’s grand niece, also testified that she saw Jacobs and Mark together in 2006, and believed that they had a loving relationship.
Mann testified that he had not completely paid off the $10,000 loan from Jacobs when he stopped making loan payments in 2002 and began working as an international tour guide. According to Mann, at that time, he asked Mark to make the payments because Mark had moved into Jacobs’ house.
Brandelli called Mann to testify pursuant to Evidence Code section 776.
c. Jury Instructions, Closing Arguments, and Verdicts
Shortly before the end of the presentation of evidence, the trial court discussed the proposed jury instructions with John Bunnett, who represented Mann, and James Kellner, who represented Brandelli. Both attorneys agreed to the proposed instructions. The trial court then asked Kellner: “Is there anything on behalf of the defense that you believe should be inserted into these instructions that you have prepared or would like to hand... to the court to be inserted.” Kellner answered, “No, we have jointly prepared them.”
Following this discussion, Kellner indicated his intention to seek a directed verdict on certain grounds, including the lack of evidence regarding damages. Pointing to the terms of the 2002 trust, Kellner argued: “[T]here is testimony that [Mann] lost the income from the trust. I asked how much that was and nobody knew how much it was.... It is not the value of the property.” Bunnett responded that there was some evidence of damages in the form of court fees and costs.
Later, following the close of evidence, Kellner elected not to seek a directed verdict on the grounds of insufficient evidence regarding damages. Instead, Kellner challenged a proposed jury instruction on damages, which stated in pertinent part: “The following are the specific items of damages claimed by... [Mann]: [¶]1. The fair market value of real property contained in his mother’s estate; [¶] 2. Moneys expended in the underlying case in which he was represented by [Brandelli].” Kellner stated: “[The instruction] requests damages [in the form] of the fair market value of the real property. It can’t be that. The money expended in the underlying case... I will concede.”
During the discussion that followed, Bunnett maintained that Paragraph 6.9(c) of the 2002 trust “distribute[d] everything” to Mann upon Jacobs’ death, but also required the assets to be “held in trust.” Kellner offered an alternative interpretation of the 2002 trust, which he attributed to Copenbarger: after Jacobs died, Mann was to receive the income from the trust assets, which would be held in trust and distributed upon Mann’s death. In response, Bunnett reaffirmed that Mann claimed the market value of Jacobs’ house. The trial court made no ruling on Kellner’s objection, and instead gave Bunnett and Kellner an opportunity to discuss amendments to the instruction.
During closing arguments, Bunnett pointed to the appraisal valuing the house at $275,000, and urged the jury to award damages totaling $240,000, a sum he characterized as reflecting “gifts or offsets that are set forth in the trust.” Kellner responded that Mann was not entitled to the entire value of the house because the trust gave him only a life interest in the income from the house; he further contended there was no evidence regarding the house’s rental value. Regarding Mann’s claim for improper court fees and costs, Kellner stated: “[T]he damages there, if there are damages at all, [amount to] about 600 bucks. We are not here to worry about 600 bucks.”
The record reflects no ruling on Keller’s objection to the damages instruction, which the jury received without amendment or modification. In addition, regarding undue influence, the trial court instructed the jury as follows: “Undue influence may be established circumstantially through inference. [¶] Possible items of circumstantial evidence include: [¶] •‘Unnatural’ testamentary provisions; [¶] •Testamentary dispositions apparently at odds with the testator’s stated intentions and desires during life...; [¶] •Close relationship with a beneficiary, which presented opportunity for the exercise of undue influence; [¶] •Participation by a major beneficiary in procuring execution of the will; [¶] •A propensity on the testator’s part -- whether by reason of old age, mental infirmity or otherwise -- to have his or her free will usurped by the individual exercising undue influence; [¶] •The execution of a testamentary document ‘unduly benefiting’ the person alleged to have influenced the testator.”
The jury found that Mark had a confidential relationship with Jacobs; that he actively participated in procuring the pertinent amendments to the trust, from which he unduly profited; and that the amendments were not freely made by Jacobs without exertion of undue pressure. The jury further found that Brandelli, in handling Mann’s case, had acted negligently and in breach of his fiduciary obligations; that Brandelli’s conduct was a substantial factor in causing injury to Mann; and that Mann’s damages totaled $240,723.50.
4. No Error Regarding Undue Influence
Brandelli challenges the jury’s findings regarding undue influence on two grounds. First, in connection with his motion for judgment notwithstanding the verdict, he contends there is insufficient evidence to support the jury’s findings. Generally, “[w]he[n] the beneficiary is in a confidential relationship with the testator, actively participates in procuring the execution of the will, and unduly profits by it (i.e., obtains substantial benefits though not a normal object of the testator's bounty), a presumption of undue influence arises and places the burden on the beneficiary to show that the will was freely made.” (14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills and Probate, § 135, p. 198; Rice v. Clark (2002) 28 Cal.4th 89, 97.) Here, Brandelli maintains that there was insufficient evidence to show that Mark “actively participate[d]” in securing the amendments to the 2002, for purposes of the presumption. As explained below, we reject this contention.
For purposes of the presumption of undue influence, the requisite active participation “may be established by inference, that is, circumstantial evidence.” (Estate of Jamison (1953) 41 Cal.2d 1, 8.) Control over the testamentary acts “may be established by a variety of circumstances, such as the dependency of the testator upon the beneficiary for care and attention.” (Estate of Calway (1961) 196 Cal.App.2d 268, 276.) Nonetheless, “[s]ome incidental activity in the execution, rather than the preparation of the will, ” is not enough to show active participation. (Estate of Bould (1955) 135 Cal.App.2d 260, 275.) Thus, “the mere fact of the beneficiary procuring an attorney to prepare the will is not sufficient ‘activity’ to bring the presumption into play [citations];... or selection of attorney and accompanying testator to his office [citations]; or presence at the execution of the will [citations]; or presence during the giving of instructions for the will and at its execution [citations].” (Id. at pp. 275-276.)
Here, Brandelli contends that Mann made an insufficient showing regarding Mark’s active participation in the trust amendments, arguing that Mann presented no evidence beyond the fact that Mark chose Copenbarger and drove Jacobs to Copenbarger’s office. We disagree. Mann submitted evidence that Mark lived with Jacobs, exercised control over her home, and limited phone access to her. There was also evidence that Mark showed an interest in the 2002 trust: Cynthia Mann testified that Mark once displayed a copy of the trust to her when she visited Jacobs. Finally, there was considerable evidence that Mark turned Jacobs against Mann by spreading a falsehood, namely, that Mann had stolen the funds from the 2001 loan. On this matter, Copenbarger testified that when Jacobs amended the trust, she said that she was angry at Mann. The evidence that Mark exercised control over Jacobs and convinced her she had been victimized by Mann, coupled with the other evidence that Mark accompanied her when she made the amendments, is sufficient to show his active participation in the amendments for purposes of the presumption of undue influence. (See Estate of Tibbetts (1902) 137 Cal. 123, 126-127 [evidence that decedent’s mother dominated decedent and made derogatory remarks regarding decedent’s husband was sufficient to show undue influence]; Estate of Pohlmann (1949) 89 Cal.App.2d 563, 576-581 [evidence that son exercised control over mother, made false derogatory statements regarding sister to mother, and asked her to make him her sole beneficiary was sufficient to show active participation in changes to mother’s will].)
Brandelli’s reliance on Estate of Mann (1986) 184 Cal.App.3d 593 (Mann) is misplaced. There, the evidence regarding the appellant’s “active participation” in the procuring of his mother’s will showed only that he had a close relationship with her, urged her to make a will, accompanied her to a lawyer’s office, and was present when she executed the will. (Id. at pp. 601-602.) The appellate court concluded that this showing failed to trigger the presumption of undue influence, as nothing suggested that the appellant had attempted to influence the terms of the will. (Id. at pp. 608-609.) That is not the case here.
Additionally, in connection with the new trial motion, Brandelli contends that the jury was misinstructed regarding the presumption of undue influence. He argues that the trial court erred in failing to instruct the jury that Mark’s activity in accompanying Jacobs to Coperbarger’s office was insufficient, by itself, to show active participation. To support this contention, he points again to Mann, in which the appellate court held that an instruction of this type should be given if it is requested and otherwise appropriate in light of the evidence. (Mann, supra, 184 Cal.App.3d at pp. 609-615.) Here, in ruling on the new trial motion, the trial court rejected Brandelli’s contention on this matter, reasoning that he had requested no such instruction. We see no error in this ruling.
As Witkin explains, in civil cases, “[i]n order to complain of failure to instruct on a particular issue, the aggrieved party must request the specific proper instruction. [Citations.] [¶] Similarly, if the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, the party must request the additional or qualifying instruction in order to have the error reviewed.” (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 260, pp. 313-314.) In such circumstances, the rule that instructional errors are subject to an “‘automatic exception’” is inapplicable. (Id. at § 304, p. 356.) Furthermore, when the purported incomplete instructions were jointly requested by the parties, any error is forfeited under the doctrine of invited error. (Id. at § 316, pp. 369-370.)
Here, at the parties’ joint request, the trial court gave several instructions regarding the presumption of undue influence, including the instruction that Brandelli maintains was incomplete. As he requested the instruction as given and proposed no amendments to it, the trial court properly denied his new trial motion, insofar as it relied on a purported instructional error. (See Merrill v. Buck (1962) 58 Cal.2d 552, 555, 563-564; Bailey v. Simpson (1963) 215 Cal.App.2d 532, 534, 538.)
Brandelli also challenged portions of the special verdict form that the jury did not complete. Because Brandelli agreed to the pertinent portions of the form and never explained how the purported errors affected the jury’s actual findings, we see no error in the trial court’s ruling.
5. No Error in Granting New Trial Limited to Damages
Brandelli contends that the trial court improperly ordered a new trial limited to damages. The crux of his contention is that the amount of the jury’s award of damages is explicable only if the jury improperly based its determination on the value of Jacobs’ house, which the 2002 trust did not give to Mann. He argues that his motion for judgment notwithstanding the verdict should have been granted because Mann failed to establish an element of his legal malpractice claim, namely, his damages; in the alternative, he argues that a new trial should have been ordered on all issues. As explained below, we discern no error in the pertinent rulings on the post-judgment motions.
At the outset, we note that Brandelli concedes the jury received evidence that Mann suffered up to $723.50 in damages in the form of court fees and costs. Brandelli’s contentions thus require us to examine the relationship between motions for judgment notwithstanding the verdict and new trial motions when (1) the moving party asserts there is insufficient evidence to support the jury’s damages award but (2) there is evidence of some damages. Although no published decision has addressed this relationship under the circumstances present here, we find guidance from Teitel, supra, 231 Cal.App.3d 1593 and Dell’Oca v. Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531 (Dell’Oca).
In Teitel, the plaintiff sued a bank for compensatory and punitive damages, which the jury awarded. (Teitel, supra, 231 Cal.App.3d at p. 1600.) The bank asserted motions for judgment notwithstanding the verdict and for a new trial on the ground that the punitive damages were excessive; in addition, it sought a remittitur under section 662.5, subdivision (b), which permits the trial court to grant a new trial on damages when the original award is excessive, subject to denial if the prevailing party accepts a lesser amount of damages that the court “‘in its independent judgment determines from the evidence to be fair and reasonable.’” (Id. at p. 1602.) The trial court denied the new trial motion in its entirety, reduced the award of punitive damages, and entered judgment accordingly. (Id. at p. 1601.)
In reversing the judgment, the appellate court explained: “The trial court erred in granting the judgment notwithstanding the verdict in light of this evidence. The Legislature has provided an exclusive remedy for a trial court to employ where some damages are properly awarded, but the amount is excessive. That is through a remittitur pursuant to... section 662.5.... [T]he legislative system as enacted makes it plain that damages, except those which may be determined as a matter of law, are to be fixed by the trier of fact and, if erroneous in amount, subject to the reduction or new trial procedure specified in... section 662.5, subdivision (b).” (Teitel, supra, 231 Cal.App.3d at pp. 1604-1605, fn. omitted.) In a footnote, the court elaborated: “A judgment notwithstanding the verdict for an amount less than the jury verdict would seem appropriate where there can be no dispute as to the amount.” (Id. at p. 1605, fn. 6.)
In Dell’Oca, the appellate court clarified the trial court’s discretion to order a new trial limited to damages, rather than a judgment notwithstanding the verdict, when the original damages award is excessive. (Dell’Oca, supra, 159 Cal.App.4th at pp. 546-552, 556-558.) There, a jury awarded the plaintiffs compensatory damages in their action against a bank. (Id. at p. 541.) The bank filed motions for judgment notwithstanding the verdict and for a new trial on the ground that the damages were excessive, arguing, inter alia, that the plaintiffs provided inadequate evidence regarding their entitlement to a specific item of damages. (Id. at pp. 547, 557.) The trial court denied the motion for judgment notwithstanding the verdict but granted a new trial on damages, subject to denial if the plaintiffs agreed to a reduction of the damages. (Id. at p. 541.) On these matters, the trial court reasoned that the plaintiffs’ evidence regarding the pertinent item of damages was “too speculative to permit recovery.” (Id. at pp. 546-552, 556-557.) The plaintiffs rejected the reduction, and the bank appealed. (Id. at p. 541.)
In affirming the rulings, the appellate court concluded that when there is insufficient evidence to support a damages award, the trial court may grant a new trial on damages in lieu of judgment notwithstanding the verdict, provided there is a “‘real possibility’” the plaintiff can provide evidence to support its theory of recovery regarding the item of damages. (Dell’Oca, supra, 159 Cal.App.4th at pp. 548-549, 557, italics deleted.) In such circumstances, the appellate court explained, “[t]he motion is granted ‘not because the judge has concluded that the plaintiff must lose, but only because the evidence in the trial that actually took place did not justify the verdict. Evidence might exist to justify the verdict, but for some reason [it] did not get admitted; perhaps... the plaintiff’s attorney neglected to call a crucial witness or ask the right questions. There is still the real possibility that the plaintiff has a meritorious case.’” (Id. at p. 548, quoting Fountain Valley, supra, 67 Cal.App.4th at p. 752.)
Here, in denying the motion for judgment notwithstanding the verdict and granting a new trial on damages, the trial court eventually determined that because the trust gave Mann only “an income interest” in Jacobs’ house, the jury’s verdict could not be supported by reference to the market value of the house. Furthermore, noting Teitel, the court determined that remittitur was not possible under section 662.5, as insufficient evidence had been presented at trial to permit reduction of the damages to a “fair and reasonable” amount. The court concluded that “it [was] necessary to open up this portion of the case to new evidence.”
In our view, the trial court did not abuse its discretion, as the record discloses a reasonable basis for concluding that Mann could establish the amount of his damages flowing from the loss of his interest under the trust. Mann’s showing at trial regarding these damages hinged on an interpretation of the trust that Brandelli did not question in any manner until the presentation of evidence was virtually complete; indeed, Brandelli initially agreed to the damages instruction that embodied Mann’s interpretation, and challenged it only after both parties had presented their evidence. As the extrinsic evidence bearing on the trust’s provisions was undisputed, the interpretation of the trust presented a question of law that could be resolved only by the trial court. (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395.) However, the trial court did not decide this question against Mann until it ruled on the post-judgment motions, thus foreclosing Mann’s opportunity to supplement the evidence regarding his damages before the case was submitted to the jury. As the kind of evidence needed to establish Mann’s damages (for example, evidence of the house’s rental value during Mann’s projected lifespan) was akin to the evidence he presented regarding the house’s market value, the trial court reasonably concluded that Mann could likely present evidence establishing his damages.
The only cognizable extrinsic evidence regarding the trust came from Copenbarger, who assisted Jacobs in creating the trust and its amendments. According to Copenbarger, under the trust, Jacobs intended that Mann would receive only a life interest in the income from her estate upon her death.
Pointing primarily to Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116 (Cardinal Health), Brandelli contends that the trial court was obliged to grant his motion for judgment notwithstanding the verdict. We reject this contention. In Cardinal Health, a healthcare products retailer sued some manufacturers for providing defective products. (Cardinal Health, supra, 169 Cal.App.4th at p. 121.) After a jury awarded the retailer compensatory damages for future losses from the products, a manufacturer appealed, contending that there was insufficient evidence to establish the amount of future losses. (Id. at pp. 149-150.) In reversing the judgment, the appellate court struck the award for future losses in lieu of remanding the matter for a new trial, stating: “In this case, [the retailer] had a full and fair opportunity at the six-week trial to present evidence supporting its damage claims, including its claim for future damages. During trial, defendants brought several potentially dispositive motions challenging the sufficiency of the evidence to support [the retailer’s] claimed losses, putting [it] on heightened notice of the need to produce sufficient evidence on its damage claims. Defendants also moved for a new trial and a judgment notwithstanding the verdict on the basis that the evidence was insufficient to support the damage award. [Citations.] Further, [the retailer] has never suggested the existence of any new evidence that could be presented on retrial.” (Id. at p. 153.)
Here, unlike Cardinal Health, we are examining the trial court’s decision to grant a new trial limited to damages, not deciding this matter de novo. Under the applicable standard of review, we see no abuse of discretion. As explained above, Mann had no “heightened notice” of the need for the requisite evidence regarding damages before the case was submitted to the jury(Cardinal Health, supra, 169 Cal.App.4th at p. 153), and there is a reasonable basis for concluding he can present the evidence in question.
McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657, upon which Brandelli also relies, is distinguishable for similar reasons. There, after the trial court denied motions for judgment notwithstanding the verdict on the plaintiffs’ action, our Supreme Court ultimately reversed these rulings. (Id. at pp. 1658-1659.) The appellate court declined to remand the matter for a new trial, as it appeared that the plaintiffs had been given a “full and fair opportunity” to present their case. (Id. at p. 1661.) As explained above, the circumstances here are materially different.
Brandelli also maintains that he is entitled to a new trial on all issues. In support of this contention, he directs our attention to a juror’s declaration that he submitted in seeking a new trial, which states that the jury based its award of damages on the market value of the house. We reject the contention. Generally, in connection with new trial motions, the trial court may properly order a new trial limited to damages when the grounds for the new trial do not implicate the jury’s determinations regarding liability. (Hamasaki v. Flotho (1952) 39 Cal.2d 602, 604-605; see § 662.) That is the case here.
The cases upon which Brandelli relies are distinguishable. In Krouse v. Graham (1977) 19 Cal.3d 59, 79-82, the defendant sought a new trial on the ground of juror misconduct, offering juror declarations suggesting that the jurors had incorporated the plaintiff’s attorney fees into the damages award. After the trial court excluded the juror declarations and denied the new trial motion, our Supreme Court concluded that the declarations were admissible, and remanded the matter to the trial court to reconsider the new trial motion. (Id. at pp. 79-83.) Here, the trial court granted a new trial limited to damages. As the juror declaration Brandelli submitted concerns only an item of damages, it establishes no error in this ruling.
In Nece v. Bennett (1963) 212 Cal.App.2d 494, 498, the appellate court concluded that the plaintiff had failed to present evidence sufficient to support the damages awarded to them, and reversed the judgment for a new trial. Here, we address the trial court’s discretion to order a new trial limited to damages, not an appellate court’s authority to order remedies when it reverses a judgment. We see no error in the trial court’s exercise of its discretion on this matter. In sum, the trial court did not err in denying Brandelli’s motion for judgment notwithstanding the verdict and granting a new trial limited to damages.
DISPOSITION
The orders of the trial court are affirmed. Mann is awarded his costs on appeal.
We concur: EPSTEIN, P. J., WILLHITE, J.
Pointing to Brandelli’s testimony during Mann’s case-in-chief, Mann suggests there was extrinsic evidence at trial supporting Mann’s interpretation of the trust. We disagree. Brandelli testified that he believed that under the 2002 trust, the bulk of Jacobs’ estate was to go to Mann upon Jacobs’s death. However, a lawyer’s opinion regarding the meaning of a writing that he had no role in creating does not constitute substantial evidence regarding its interpretation. (Devin v. United Services Auto. Assn. (1992) 6 Cal.App.4th 1149, 1157-1158, fn. 5; see Downer v. Bramet (1984) 152 Cal.App.3d 837, 841; Elder v. Pacific Tel. & Tel. Co. (1977) 66 Cal.App.3d 650, 664.)