Opinion
B154884.
10-15-2003
MEL BERNIE AND COMPANY, INC., et al., Plaintiffs and Appellants, v. REINSTEIN & CALKINS et al., Defendants and Respondents.
Gelfand Rappaport & Glaser, Marvin Gelfand, Steven Glaser and Gregory M. Marsh for Plaintiffs and Appellants. Robie & Matthai, Edith R. Matthai, Kim W. Sellars and Natalie A. Kouyoumdjian for Defendants and Respondents.
In this legal malpractice case, plaintiffs, Mel Bernie and Company, Inc., and 1928 Jewelry Ltd. (1928), appeal from a judgment on special verdict in favor of defendants, Reinstein & Calkins, Reinstein, Pantell & Calkins, Todd R. Reinstein (Reinstein), Jonathan B. Klinck, and Colleen Daphne Calkins.[] Defendants represented plaintiffs in the defense of an employment discrimination arbitration, in which the claimant was awarded over $1.6 million. The jury in the present case found that defendants had not been negligent in their rendition of services. Plaintiffs contend that (1) the trial court erred in summarily adjudicating (Code Civ. Proc., § 437c, subd. (f); undesignated section references are to that code) as without merit plaintiffs cause of action for negligence in failing to pursue disqualification of the arbitrator for bias; (2) the court erred in refusing to admit at trial evidence of facts underlying the claim of bias; and (3) the court erroneously excluded testimony by an ethics expert, that certain aspects of defendants conduct violated statutes and rules governing lawyers professional duties. We conclude that these rulings were largely correct, and that any error with respect to the third one was not prejudicial. We therefore affirm the judgment.
Plaintiff 1928 is either a related corporation or a fictitiously named part of plaintiff Mel Bernie and Company, Inc. For consistency, we refer to plaintiffs in the plural.
FACTS
Plaintiffs complaint alleged that in 1995, Herbert Needles, a recently terminated manager, had sued 1928 for wrongful termination and infliction of emotional distress, claiming that his discharge had stemmed from age discrimination, harassment, and retaliation. In accordance with Needless employment contract, the case was remitted to arbitration, under the auspices of the American Arbitration Association (AAA). Defendants represented 1928, and in March 1996 Attorney Stefan M. Mason (Mason) was selected as arbitrator. In April 1998, Mason rendered an award against 1928, totaling nearly $1.7 million.[]
The award, later submitted in evidence, included $ 411,000 for lost wages (past and future), $200,000 emotional distress damages, $777,500 punitive damages (including amounts awarded against two managing agents), approximately $240,000 attorney fees and costs, and arbitration fees and costs exceeding $ 50,000.
In a first cause of action for professional negligence, plaintiffs further alleged that in October 1997, the month before the arbitration hearing, defendants were placed on notice that Mason might be prejudiced against plaintiffs, because Masons ex-wife had previously represented 1928. As plaintiffs attorneys, defendants had a duty to advise plaintiffs of the potential bias and its impact on the arbitration, and to analyze the issues presented so as to allow plaintiffs to make an informed decision on "the selection of" Mason. Negligently, however, defendants failed to investigate the dimensions of the potential bias, advise plaintiffs of it, or discuss with them recusing Mason.
Plaintiffs alleged that the ultimate award against them "resulted from the arbitrators bias against [plaintiffs] and the failure of [defendants] to apprise it of that bias." Had defendants discussed the issue with plaintiffs, they would have immediately moved to recuse Mason. As a result of defendants negligence, plaintiffs suffered damage, whereas had defendants handled the matter properly, defendants "would have either prevailed in the arbitration or would have limited [their] liability through settlement."
In a second negligence cause of action, plaintiffs alleged that defendants had defended the arbitration negligently, by failing to (1) procure experts to rebut Needless expert testimony regarding lost earnings, and his emotional distress claim; (2) inform plaintiffs that their employees had failed to produce documents Needles had demanded, and of the adverse consequences; and (3) provide a "liability analysis," to permit plaintiffs to make informed decisions regarding defense and settlement postures. Had defendants done so, plaintiffs would have either prevailed at the arbitration or settled more favorably than the award.[]
The complaint also included three other causes of action, which were not submitted to the jury. One assigned defendants asserted breaches of the duty of care as having also breached a contract between the parties. Another alleged negligence in failing to advise plaintiffs to procure insurance coverage for employment claims. A final cause of action, for breach of fiduciary duty, alleged that defendants had breached that duty by failing to advise plaintiffs of certain "significant developments" in the proceedings, namely the possibility of arbitrator bias and the concomitant issue of recusal, a claim that plaintiffs had purged unfavorable documents, and the failure to provide a "liability analysis."
The complaint was filed in April 1999. Two years later, defendants moved for summary adjudication of the first cause of action, which alleged negligence regarding the question of Masons bias. Defendants contended that plaintiffs could not establish the element of causation in this cause of action, because there was no triable issue that Mason had held, or had adjudicated the Needles case based on, a bias against plaintiffs. Defendants also asserted that the cause of action was barred by collateral estoppel, arising from plaintiffs unsuccessful attempt to vacate the arbitration award. In support of their motion, defendants filed declarations and exhibits, including materials previously filed in cross-proceedings to confirm or vacate the arbitration award, of which judicial notice was requested. These evidentiary materials reflected the following scenario regarding the issue of Masons alleged bias.
In 1991, several years before the arbitration, Masons 32-year marriage and 12-year law partnership with Belle Mason ended. In 1992, defendant Reinstein engaged Belle Mason — like Mason an employment law specialist — to assist him in defending plaintiff 1928 in an employee sexual harassment case. Belle Mason obtained a voluntary dismissal of that matter, after establishing, through ink tests, that one of the claimants had fabricated a purported journal of her harassment. The dismissal was accomplished through a mediation Belle Mason arranged, using mediator Ken Cloke.
In 1996, Mason was chosen by the AAA as arbitrator in the Needles case, from a list of proposed arbitrators that had been ranked by plaintiffs and Needles. In his disclosures pursuant to section 1281.9, Mason had answered negatively the question whether a former spouse had ever participated in a proceeding involving a party to the arbitration.[] Moreover, the biographical statement he supplied made no reference to practicing with Belle Mason.[] Shortly before the November 1997 arbitration, Reinstein spoke to Belle Mason, with whom he had maintained contact, and asked what she knew of Mason, who would be arbitrating the Needles case. Belle Mason replied that Mason was her ex-husband, and she had practiced with him for many years. Reinstein had not previously known this. Belle Mason told him that Mason was very bright, had primarily represented management in employment cases, and was not emotional. She opined that, overall, he would be a good arbitrator for the present plaintiffs. Reinstein felt comfortable about proceeding with Mason.
The question read: "Has any lawyer or spouse of a lawyer, a former spouse, child, sibling, or parent of you or your spouse, or any other associates in a prior law practice ever participated in a proceeding involving any party to this matter?"
The statement listed Masons professional affiliation since 1979 as "President, Law Offices of Stefan Mason." That time included 12 years Belle Mason stated he and she had practiced as partners. According to Belle Mason, the partnership had been known as Mason & Mason.
After Mason rendered his award against plaintiffs, they obtained new (present) counsel, to contest it. New counsel and Reinstein discussed with Belle Mason possible grounds for setting aside the award. She told them that before her separation from Mason, he had represented a plaintiff in an age discrimination case. The case had been defended by an aggressive litigator named Nomi Castle, and it had caused Mason, who lost, stress and distress. Belle Mason had subsequently retained Castle to represent her regarding property issues in her and Masons marital dissolution, which had been acrimonious, and Castle had also represented Belle Mason in a personal injury suit against Mason. Belle Mason told plaintiffs lawyers she had never told Mason that she had represented 1928 in the sexual harassment case, but he might have learned it from their children. She had also used Ken Cloke to mediate the marital dissolution, but that had occurred before his mediation of 1928s case.
Belle Mason further declared that following this conversation, she had concluded that her above-summarized theory of Masons bias against 1928 was "ridiculous," because Mason could not have known of her prior representation of 1928. Their children had informed her that although they had known about the sexual harassment case, they had no idea of who her client had been, and she declared that she generally refrained from disclosing client identities. Moreover, Mason harbored no animosity towards her. She had so informed plaintiffs new counsel, and had told his associate she could not sign a declaration supporting "this bogus bias theory."
Nevertheless, when Needles petitioned the superior court to confirm the arbitration award, plaintiffs responded with a request that it be vacated, under section 1286.2, subdivisions (a)(1), (2), and (3), because Mason had committed misrepresentations and nondisclosures creating an impression of bias. Plaintiffs cited (a) Masons representation that no former spouse had represented a party to the arbitration; (b) the fact that he and Belle Mason had been in a bitter dissolution at the time of 1928s sexual harassment case; (c) circumstantial evidence that Mason knew of his ex-wifes prior representation of 1928, including that she contemporaneously listed him as of counsel to her law office; and (d) Masons failure to disclose his prior professional affiliation with Belle Mason, and his consequent misstatement of his work history in his biographical statement.
During the superior court proceedings, plaintiffs sought to depose Mason and Belle Mason. Both obtained protective orders. In doing so, Mason declared that he had not known of Belle Masons prior relationship with 1928 until after he rendered the arbitration award. (Mason later filed an identical declaration in the summary adjudication proceedings.)
Needles opposed plaintiffs petition to vacate the award, both on the merits and on grounds plaintiffs had waived their claim of apparent bias by failing to investigate and assert it when Reinstein learned of the relationship between Mason and Belle Mason, before the arbitration hearing. The superior court confirmed the award, and denied plaintiffs petition to vacate it. On plaintiffs appeal, the Court of Appeal affirmed the denial on grounds of waiver, without deciding the issue of appearance of bias.[]
The fact and text of Court of Appeals decision were adduced by plaintiffs, in their opposition to the summary adjudication motion.
In addition to the foregoing facts and testimony, defendants filed with their motion for summary adjudication plaintiffs answers to interrogatories requesting all facts that supported their contention that Mason "was biased against you in the underlying action" (straight capitals and boldface omitted). Plaintiffs had replied: "Stefan M. Mason was married to plaintiffs former counsel, Belle Mason, for over 30 years. Stefan Mason and Belle Mason were also involved in a law practice together for many years. They divorced and dissolved their practice in or around 1992. Both the divorce and the law practice dissolution were acrimonious. . . . [¶] Stefan Mason misrepresented his professional history on his disclosure statement to eliminate any reference to his years with Belle Mason. [¶] The arbitrator issued an extraordinarily punitive award against 1928."
In opposition to defendants motion for summary adjudication, plaintiffs contended that the foregoing evidence about Masons relationships with Belle Mason, and his nondisclosure of those relationships before the arbitration, presented a triable issue that he indeed had been biased in deciding the arbitration. Plaintiffs further argued that even absent proof of bias, their first cause of action embraced additional damage by way of the attorney fees plaintiffs had incurred in attempting to vacate the award, an effort that had failed because of defendants negligent waiver of the claim. Plaintiffs also contested defendants collateral estoppel argument.
The trial court granted the motion for summary adjudication, ruling that there was "no evidence that would justify a jury in concluding that the arbitrator was biased against plaintiff in any way," and that "plaintiffs have pres[e]nted this court with only surmise and conjecture . . . ."
The case proceeded to jury trial of plaintiffs remaining claims that defendants had committed malpractice in the representing them (second cause of action), and their cause of action for breach of fiduciary duty. At trial, the court made certain rulings excluding evidence which plaintiffs assert were erroneous; those rulings will be recounted below.
The jury was instructed regarding the elements of liability for attorney negligence, and retired with a special verdict form, in which the first question was whether defendants had been negligent, in failing to meet the applicable standard of care in rendering legal services to plaintiffs.[] After twice reporting itself deadlocked, 7-5 on the negligence question, the jury heard a readback of the cross-examination of defendants expert. Following that days adjournment, deliberations were interrupted for two days by the September 11, 2001 attacks. On September 13, 2001, after about an hours deliberation, the jury by a vote of 9-3 returned a negative answer to the verdicts first question, of negligence. Judgment for defendants followed.
The jury was not instructed on the claim for breach of fiduciary duty, which plaintiffs assert became foreclosed when the court disallowed testimony by their ethics expert. Although plaintiffs contest that ruling insofar as it allegedly affected their malpractice claim, they expressly do not seek reinstatement of the fiduciary duty cause of action.
DISCUSSION
1. The Summary Adjudication.
Plaintiffs contend that the trial court erred in summarily adjudicating their first cause of action, which alleged negligence in failing to investigate, analyze, and advise regarding Masons possible bias, on grounds there was no triable issue that Mason had been biased, and therefore the alleged negligence did not cause plaintiffs injury. In challenging this disposition, plaintiffs do not contend, as they did below, that a triable issue of Masons bias existed. Rather, plaintiffs raise a series of new legal theories, to the effect that their cause of action remained viable even if Mason was not biased. Plaintiffs arguments are unavailing, primarily because they fail to recognize, and indeed contradict, the claim that plaintiffs actually asserted below, which was the subject of the summary adjudication.
Plaintiffs first note that actual bias is not legally required in order to disqualify an arbitrator, or to vacate an arbitral award under section 1282. Rather, an award may be vacated if the record contains facts that could reasonably create an impression of possible bias. (E.g., Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4th 716, 722-723.) This objective standard, plaintiffs suggest, applies because "it is virtually impossible to prove actual bias." Hence, plaintiffs argue, the trial court erred in deciding their cause of action on the subjective issue of actual bias.
The fundamental problem with this argument is that actual bias is what plaintiffs asserted as the causal factor in their cause of action. The complaint alleged, as to causation of injury, that "The award resulted from the arbitrators bias against 1928 and the failure of [defendants] to apprise it of the issue of bias." In their opposition to the summary adjudication motion, plaintiffs did not dispute that this was their claim, but rather adhered to it. They argued that "there is substantial evidence from which the trier of fact could conclude that the award issued by the arbitrator was the result of bias."
Plaintiffs thus cannot properly contend that the court decided the wrong question when it granted summary adjudication based on the element of Masons bias. Summary adjudication addresses the issues in a case or cause of action as framed by the pleadings, and "[t]he complaint measures the materiality of the facts tendered in a defendants challenge to the plaintiffs cause of action." (FPI Development , Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) Had plaintiffs desired to modify their pleading, they should have sought leave to amend it. They did not, and the trial court properly focused its ruling on the issues in the complaint. (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1424.)
The same holds true with respect to plaintiffs further argument that the summary adjudication failed to take into account another element of injury besides the award, namely plaintiffs loss of the opportunity to have it judicially vacated for appearance of bias, by reason of defendants waiver, as adjudicated by the Court of Appeal. Plaintiffs acknowledge that the complaint did not raise this theory of damage, but they aver that it was not pled "because the appellate courts opinion establishing the waiver was not issued until after 1928 filed the complaint." But that sequence does not justify raising the issue now. The appellate decision occurred nearly two years before defendants filed their summary adjudication motion. Plaintiffs did not seek to file a supplemental complaint, nor did they even attempt to adduce their theory of damage by waiver in their opposition to the motion. Once again, plaintiffs belatedly revised theory does not warrant reversal of the summary adjudication. (See Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223.)[]
Moreover, plaintiffs theory that defendants waived a valuable claim to vacate the award is questionable. Plaintiffs assume that their petition to vacate undoubtedly would have been granted. But the superior court apparently denied it on the merits, as well as for waiver. And if Masons uncontradicted disavowal of knowledge that his ex-wife had represented 1928 is credited, the inferences underlying the claim of appearance of possible bias dissolve.
Plaintiffs further contend that the summary adjudication was improper because it did not address or resolve an additional claim for damages attributable to defendants alleged negligence, namely the attorney fees and costs plaintiffs incurred in their unsuccessful effort to vacate the award for appearance of bias. This contention too is untenable.
Contrary to plaintiffs implication, the complaints first cause of action did not include a claim for attorney fees incurred in seeking to vacate the arbitration award. Rather, the complaint alleged that plaintiffs had been damaged by suffering an arbitration award greater than they would have undergone, or been able to settle for, but for defendants negligence, which allowed the arbitration to proceed before the biased Mason. Plaintiffs contention that the summary adjudication erroneously failed to dispose of the entirety of their cause of action is therefore incorrect. Moreover, once again plaintiffs did not seek to amend their cause of action to assert this new theory of injury. It was not, as they claim, sufficient for plaintiffs to raise in their opposition to the summary adjudication motion what they there acknowledged to be "additional claims seeking other items of damage." (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265, 1266; see Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663-1664.) The trial court was entitled to determine that motion on the basis of the issues pled and properly joined.[]
Furthermore, at trial the court expressed willingness to award plaintiffs the expenses in question, as costs of suit if they prevailed.
Finally, in their reply brief, plaintiffs contend that the court erred by deciding the issue of causation based on the absence of Masons bias, rather than by a "trial-within-a-trial" of the Needles case. Not so. Such a mini-trial might have been appropriate had plaintiffs presented a triable issue of Masons bias. But defendants showing that plaintiffs could not do so established that defendants alleged negligence had not caused the very injury that plaintiffs alleged: an award by a biased arbitrator, more severe than would have occurred but for the negligence. That is the test of causation in a litigation malpractice case. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1241; Karpman, Causation requirement reaffirmed (Aug. 2003) Cal. Bar Journal, p. 25.)
2. Exclusion of Evidence Relating to Masons Former Marriage.
Plaintiffs next contend that the trial court erred in excluding evidence of defendants failure to investigate Masons relationship with Belle Mason. To the extent plaintiffs contend that such evidence was admissible because plaintiffs first cause of should have survived summary adjudication, the argument necessarily fails. However, plaintiffs also urge that proof of defendants failure to examine the relationship with Belle Mason, and of the subsequent adjudicated waiver of plaintiffs claim to vacate the award, should have been admitted to support plaintiffs overall theory that defendants negligently handled the Needles defense by deficient investigation in other respects. Assuming this theory of admissibility was valid (but see Evid. Code, § 1101, subd. (a); Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 850-851), we conclude that the court did not abuse its discretion in excluding evidence relating to the personal relationship of the Masons.
The record reflects that the trial court did not foreclose plaintiffs from exploring the sufficiency or insufficiency of defendants investigation of Masons qualifications to sit in the Needles case. First, at a pretrial motion in limine, the court agreed that plaintiffs could introduce evidence about what investigation defendants made of Masons background and attitudes after the AAA listed him as a potential arbitrator. However, the court excluded testimony about the personal relationship of Mason and Belle Mason, including their marriage and divorce. In accordance with this ruling, plaintiffs elicited both factual testimony about how defendants had responded to the initial submission of Mason — including that they had not then asked Belle Mason, 1928s former employment lawyer, about him — and expert testimony that defendants investigation and selection of the arbitrator had not met the standard of care.
Second, following an offer of proof during defendant Reinsteins testimony, defendants were permitted to and did introduce proof of Reinsteins conversation with Belle Mason shortly before the arbitration hearing, including his discovery that Mason and Belle Mason had practiced together extensively, and her comments about Masons background and suitability for the case. Reinstein also identified, from his own files, a letterhead of Belle Masons law firm, listing Mason as of counsel. In addition, defendants were permitted to examine Reinstein extensively about a letter he had written to 1928 three months before the arbitration hearing, in which he had suggested that 1928 recommence settlement discussions with Needles because "it may be that [Mason] is a touchy feely, give him something kind of guy . . . ."
Defendants thus were permitted to introduce evidence about defendants pre-hearing investigation of Mason, and its alleged deficiency. What the court did not allow was evidence about Mason and Belle Masons marriage, its dissolution, and related interactions, which had formed the basis for plaintiffs challenge to the arbitration award for appearance of bias, or introduction of the appellate ruling that defendants had waived that challenge. The court so ruled under Evidence Code section 352, observing that, the cause of action based on Masons alleged bias having failed, the utility of introducing these facts would be more prejudicial than probative.
This ruling was not an abuse of the broad discretion confided by Evidence Code section 352. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Admission of evidence regarding the Masons marital relationship and related facts regarding bias or its appearance would have tended to revive, and encourage jury speculation about, the unfounded theory that the award had been a product of bias, thus risking confusion and prejudice. On the other hand, the additional probative value of these matters with respect to defendants alleged failure to investigate was minimal, the court having permitted exploration of that subject in the context of arbitrator selection.
3. Exclusion of Expert Testimony.
The final set of issues concerns the exclusion of certain expert testimony plaintiffs sought to present. At trial, each side called an experienced employment lawyer as an expert witness about the standard of practice and care, and defendants adherence to or departure from it. In addition, plaintiffs proposed to have another lawyer, Diane Karpman, a legal ethics expert, render opinions that defendants conduct had not conformed to ethical requirements, in two respects. In response to defendants motion to preclude this testimony, plaintiffs made the following offer of proof.
First, Karpman would testify to rule 3-500 of the Rules of Professional Conduct (rules), which provides that "A member shall keep a client reasonably informed about significant developments relating to employment or representation . . . ." She would opine that this obligation applied to defendants discovery, through Belle Mason, that Mason had previously practiced law with her, generating "a potential basis to disqualify him," but that defendants had not so informed plaintiffs until the arbitration hearing was underway.
Second, Karpman would appraise defendant Reinsteins admission that he had given an exaggerated opinion of how good plaintiffs case was, when he suggested that plaintiffs make another settlement offer, a few months before the arbitration hearing. She would testify that Reinsteins untruthfulness had violated Business and Professions Code section 6067, which prescribes that a California lawyers oath of admission includes an undertaking "faithfully to discharge the duties of a[n] attorney at law . . . ," and also had constituted a breach of fiduciary duty.
The court initially characterized this proposed testimony as equivalent to the witnesss relating the content of a code provision and then opining from the evidence that the defendant had violated it. Plaintiffs counsel disagreed, stating in part, "Miss Karpman is not opining on the law. Shes opining on the standard of care within the confines of the law." Defendants counsel agreed with the courts characterization, and stated, "what [Karpman is] opining on is some sort of alleged breach of fiduciary duty, not on standard of care." Plaintiffs counsel submitted the issue, and the court granted the motion in limine.
Attacking this ruling, plaintiffs cite two breach of fiduciary duty cases, in which testimony by experts concerning the rules was received to prove an attorneys breach of duty. In Mirabito v. Liccardo (1992) 4 Cal.App.4th 41, the court held it proper to have allowed experts to testify about the duties of an attorney as prescribed in the rules, and for the court to have instructed about the relevant rules. The court stated that the plaintiff had been entitled to present evidence of the fiduciary duties the defendant was alleged to have breached, and that the rules could provide a measure of those duties. (Id. at pp. 44-46.)
Stanley v. Richmond (1995) 35 Cal.App.4th 1070 reversed a nonsuit on claims against an attorney for negligence, breach of contract, and breach of fiduciary duty. With respect to the latter cause of action, the court held that the plaintiff had established a prima facie case by the testimony of an ethics expert that the defendant had violated various rules concerning the representation of conflicting interests. Citing Miraboto v. Liccardo, supra, 4 Cal.App.4th 41, the court stated: "The scope of an attorneys fiduciary duty may be determined as a matter of law based on the [rules] which, `together with statutes and general principles relating to other fiduciary relationships, all help define the duty component of the fiduciary duty which an attorney owes to his [or her] client. [Citations.] . . . Expert testimony is not required [citation], but is admissible to establish the duty and breach elements of a cause of action for breach of fiduciary duty where the attorney conduct is a matter beyond common knowledge [citations]." (35 Cal.App.4th at pp. 1086-1087.)
Although the foregoing cases endorse the admissibility of testimony akin to what plaintiffs offered to show through Karpman, both holdings were rendered with respect to claims for breach of fiduciary duty, as distinguished from negligence. Here, plaintiffs do not seek reinstatement of their breach of fiduciary duty cause of action, but rather argue that Karpmans testimony was admissible to show negligence as well. The cited cases do not stand for that proposition. And although an attorneys standard of care may be affected by ethical obligations, the trial court could well have understood plaintiffs offer of proof to consist only of legal pronouncments and conclusions.
In any event, the courts ruling with respect to the failure to inform plaintiffs about Masons former relationship with Belle Mason was not error. This was one of the allegations of malpractice in the first cause of action, and what rendered the connection with Belle Mason allegedly significant was that it supposedly provided grounds to disqualify Mason, more than a year after he had been appointed. But the trial court had already summarily adjudicated the first cause of action, as not causative of injury. As the court recognized when it first considered defendants motions in limine, that rendered the failure to disclose scarcely if at all relevant.[] Just as it was not error to preclude plaintiffs from eliciting facts relating to bias, neither was it improper to preclude Karpman from opining about them.[]
The court had discussed the matter with plaintiffss counsel as follows: "MR. GELFAND: . . . There are several other aspects of Miss Karpmans testimony with respect to that and the breach of fiduciary duty. [¶] The failure to properly communicate with the client is a breach of the fiduciary duty, especially where Mr. Reinstein has potential facts regarding the arbitrator bias and doesnt tell the client until after — actually during the arbitration hearing. [¶] THE COURT: But you lost the bias claim and, I mean, that was the subject of a motion. There is no evidence that indicates bias. [¶] MR. GELFAND: Agreed. [¶] THE COURT: And so now youre going to use that as a whipping boy to show that he was negligent in not doing something that had no effect on the case anyway."
Moreover, the trial court ultimately instructed the jury, in the language of rule 3-500, that "The defendant attorney has the duty to keep the client reasonably informed about significant developments relating to the attorneys representation."
The remainder of the excluded testimony consisted of Karpmans opinion about Reinsteins exaggerating plaintiffs prospects in the case, in hopes of inducing settlement. Assuming arguendo it was error to preclude this testimony, the ruling was harmless. In deposition testimony that was read to the jury, Reinstein stated that when he wrote to plaintiffs that the Needles case was "looking good on the facts," but that it was a propitious time for settlement, he had taken "a little bit of license by saying the case was looking that good in order to get Mr. Bernie to authorize me to reopen negotiations."[] Although Karpman did not testify that Reinsteins misstatement fell below the standard of care, plaintiffs elicited the same testimony — perhaps more tellingly — from defendants own expert witness, Michael Posner.
Reinstein explained that he had represented Mel Bernie, plaintiffs owner, for 25 years, and while Bernie did not want to settle, Reinstein "desperately wanted to reopen negotiations with the other side." Reinstein further testified: "[Q]: Its fair to state that it was not your opinion that the facts looked good at that point? [¶] [A]: Not as good as I said they looked."
On cross-examination by plaintiffs, Posner testified that it would be "inappropriate" and below the standard of care to tell a client that its case was "looking good" if it were not, and that if Reinstein believed that information in his letter was not true, then it would be below the standard of care and inappropriate for him to send it. Posner further testified that the standard of care would be for the attorney to advise the client honestly about the attorneys assessment of the case, and let the client decide whether to settle. Plaintiffs relied on this testimony in closing argument.
Furthermore, mischaracterization was not plaintiffs sole theory of negligence with regard to Reinsteins stated appraisal of the case. Plaintiffs expert, Donna Goldstein, opined that it would be below the standard of care to view the case as "looking good on the facts," and plaintiffs endeavored to prove that Reinstein had actually held that opinion.[]
Posner disagreed with Goldsteins opinion in this respect. But contrary to plaintiffs repeated assertions, Posner never opined that it was within the standard of care for Reinstein to misstate his evaluation of the case to his client.
The trial courts exclusion of Karpmans testimony about Reinsteins misstatement thus did not foreclose plaintiffs from proving its nonconformity with the standard of care. Even assuming this phase of the courts ruling was erroneous, there is no reasonable probability that plaintiffs would otherwise have achieved a more favorable verdict.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., BOLAND, J.