Britton v. Riggs CA2/7 ( 2021 )

Filed 12/16/21 Britton v. Riggs CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
LAYNE LESLIE BRITTON, B303446
Plaintiff, Cross- (Los Angeles County
Defendant, and Super. Ct. No. BC496298)
Respondent,
v.
CONRAD RIGGS et al.,
Defendants, Cross-
Complainants, and
Appellants.
APPEAL from the judgment of the Superior Court of
Los Angeles County, Frederick C. Shaller, Judge. Reversed and
remanded.
Browne George Ross O’Brien Annaguey & Ellis, Eric M.
George and Richard A. Schwartz for Defendants, Cross-
Complainants, and Appellants.
Quinn Emanuel Urquhart & Sullivan, Christopher
Tayback, Valerie Roddy, Aaron Perahia for Plaintiff, Cross-
Defendant, and Respondent.
__________________________
Conrad Riggs and Cloudbreak Entertainment, Inc.
(Cloudbreak) appeal from a judgment entered in favor of plaintiff
and cross-defendant Layne Leslie Britton, contending the trial
court erred in denying their motion for summary adjudication of
Britton’s breach of contract cause of action and granting the
motion for summary adjudication filed by Britton. Britton filed
suit against Riggs and Cloudbreak for various claims arising out
of an alleged breach of a consulting agreement the parties
entered into with respect to services to be provided by Britton on
the television reality series Survivor and other matters. Riggs
and Cloudbreak cross-complained against Britton, who was an
attorney, asserting claims for professional negligence, breach of
fiduciary duty, restitution, and alleging Britton provided legal
services to Riggs and Cloudbreak pursuant to a written
contingency fee agreement that did not satisfy the requirements
imposed on such agreements by Business and Professions Code
section 6147.1
The trial court granted Britton’s summary adjudication
motion and denied the summary adjudication motion filed by
Riggs and Cloudbreak, finding Britton served as a business
consultant, not an attorney, and therefore the consulting
1 All further undesignated statutory references are to the
Business and Professions Code.
2
agreement was not voidable. Following the court’s ruling, a jury
found for Britton on his claims for breach of contract and money
had and received, awarding him $489,850 in damages.
On appeal, Riggs and Cloudbreak contend Britton provided
legal services under the consulting agreement and the agreement
therefore was voidable by Riggs and Cloudbreak. We agree and
reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Britton’s Services for Riggs and Cloudbreak2
1. The players and deal to produce the reality series
Survivor
Britton graduated from law school in 1981. Britton was
admitted to the California bar, but he pursued a career as a
television executive. Britton worked as vice president of business
affairs at NBC Entertainment and later at CBS, before he
became the executive vice president of business operations for
UPN. Although Britton never worked for a law firm or as a solo
practitioner and never made a court appearance or served as
counsel of record, he was at all relevant times an active
membership in the California bar.
Riggs graduated from law school in 1989, after which he
worked as a transactional attorney at two law firms and later for
a sports agency. In 1998 Riggs and his production company,
Cloudbreak, began working with Mark Burnett to produce reality
television shows, including Survivor. Riggs and Burnett pitched
2 This discussion is based on undisputed facts taken from
evidence submitted in connection with the summary adjudication
motions.
3
Survivor to several networks, including to UPN where Britton
was then executive vice president of business operations. Britton
suggested Burnett and UPN equally share the responsibility for
securing advertisers for the show and split the advertising
profits. UPN ultimately declined to produce the show, but in
1999 Burnett finalized a deal with CBS on Survivor (Survivor
agreement), which included a similar shared advertising
provision.
2. Britton advises Riggs regarding disputes with CBS
On March 25, 1999 Riggs contacted Britton by email
seeking Britton’s advice on which attorney to hire for the
“CBS/Survivor deal.”3 Survivor premiered on CBS in 2000. In
the summer of 2000 Riggs contacted Britton regarding CBS’s
demand that Burnett reduce his share of the profit on advertising
revenues from 50 percent to 25 percent. CBS indicated it would
not sell any additional advertising units for Survivor if Burnett
did not agree to the reduction. Britton advised Riggs to instruct
Burnett not to agree to any reduction. CBS ultimately sold
additional advertising, and Burnett maintained his 50 percent
share of profit on advertising revenues.
Shortly thereafter, discussions began between Burnett and
CBS over the renewal of Survivor for additional seasons. The
Survivor agreement required Burnett and CBS to negotiate a
settlement as to compensation for future cycles of Survivor and to
arbitrate their dispute if no agreement could be reached. During
the settlement discussions, the law firm Irell & Manella
3 The record does not reflect whether Britton provided advice
in response to the email.
4
represented Burnett, while also providing legal advice to Riggs
and Cloudbreak. Britton also provided advice to Riggs and
Burnett regarding the dispute over future cycles. According to
Riggs, Britton “offered to help [Riggs] with the renegotiation
instead of [Riggs] hiring . . . another lawyer.” Riggs told Britton
he wanted Britton to be his lawyer and added, “[I]f you help me,
I’m not going to hire another lawyer, so you’re going to do this
work, whatever it is.”
On behalf of Burnett and Riggs, Britton engaged in
negotiations with Les Moonves, who at the time was president
and chief executive officer of CBS television, regarding a renewal
contract for Survivor. When no settlement was reached, Burnett
and CBS scheduled an arbitration for January 2001. During the
arbitration process the law firm O’Donnell & Shaeffer
represented Burnett and Riggs. However, Riggs continued to
receive advice from Britton regarding the dispute.
On July 5, 2000 Britton wrote an email to Riggs, titled
“What To Do To Maximize the Success of Su[r]vivor and Eco
Challenge,” advising Riggs to “[b]e patient at CBS with
Survivor. . . . You have arbitration as your protection.” (Italics
added; capitalization omitted.) Britton noted the arbitrator could
award a larger payment to Burnett than the 50-50 advertising
revenue split, suggesting that during the arbitration “[y]ou will
argue that you should be paid more. [¶] . . . To support this you
can point to many examples of successful shows where the cost to
the networks is f[a]r more onerous than the arrangement you
have at present. . . . [¶] . . . There is nothing that says a license
fee cannot include ratings performance payments.” In the same
email, Britton proposed various television networks where
Burnett and Riggs might pitch several new show ideas. Britton
5
advised, “If there are any shows here you like, you should try to
sell them now for the 50/50 advertiser deals. Do this for two
reasons. One, you can confirm rumors that this is the deal at
CBS without violating your confidentiality clause [in the Survivor
agreement]. Two, you will have a basis of comparison for the
arbitrator.”
On July 8, 2000 Riggs sent Britton an email asking him to
review a draft email to CBS employee Marc Graboff in response
to Graboff’s email objecting to the proposed licensing fee for
future cycles of Survivor that took into account past advertising
revenues. Britton responded to Riggs, “Please add that they have
in fact offered payments directly related to advertising revenue
by offering to pay bonuses based on ratings and ratings are of
course a large part of the total advertising revenue. [¶] Please
co[n]sider whether you want to start this now or wait until next
week. Don’t show them your thought process this early. [¶]
Consider going right to arbitration with no notice of your coming
arguments.” Four days later, Britton provided Riggs with notes
on a revised draft email to Graboff. Regarding a $1 million cost
deduction by CBS in the first cycle accounting for Survivor,
Britton proposed adding, “You failed to list even one example of
what entity had ever[] been charged these costs and more
importantly c[o]uld not show where in the contract CBS c[a]n
deduct thes[e] cost[s] even if they w[e]re ordina[r]y and
custom[a]r[y].” (Capitalization omitted.)
On July 27, 2000 Britton sent Riggs an email with the
subject line “Survivor letter for counter.” (Italics added.) Britton
suggested adding a cover letter “[e]xplain[ing] that you think it
reflects the intent of the parties at the time the deal was made to
reward [Burnett] for performance since he took the risk of selling
6
the time” and “[e]xplain[ing] that the rights [to Survivor] should
belong to [Burnett] because he will make it his business to build
a business that maximizes these rights. [Burnett] will use his
personal selling skills to sell and build the Survivor brand along
with other brands like ECO-Challenge.” (Italics added.)
On September 26, 2000 Britton sent Riggs an email with a
subject line reading, “Ready For Arbitration.” Britton listed
several points for Riggs to consider regarding the arbitration with
CBS, including that the dispute “can be settled any time before
the judgment is issued” and “[d]on’t put a number on the table
that is not reflective of the value of Survivor.” (Italics added.)
3. Britton helps Riggs and Burnett pitch and sell
additional television shows
Around September 2000 Britton also helped Burnett and
Riggs develop and attempt to sell additional show ideas. Britton
arranged a meeting with Garth Ancier at NBC to pitch a reality
television show called Destination Mir. That month NBC agreed
to develop the show. Britton helped negotiate with Ancier a 50-
50 advertising revenue split between NBC and Burnett’s
affiliated company, DJB, Inc. In early October 2000 Britton
suggested Riggs and Burnett work on a professional wrestling
television show and set up a pitch by contacting Ted Turner.
4. Britton advises Riggs regarding disputes with
Castaway
On October 5, 2000 Britton sent Riggs an email regarding a
dispute between DJB and Castaway Television Productions,
Limited (Castaway) with respect to Castaway’s right to a share of
Burnett’s payments from CBS for Survivor. Britton’s email
7
contained the subject line “Privileged and Confidential,” and it
attached a document titled “Privileged and Confidential.doc.”
The attached document began, “Privileged and Confidential [¶]
Notes on possible ways to respond to the Castaway letter . . . .”
In the document, Britton described “[b]ad news about the letter,”
including that the “aggressive[ness]” of the letter indicated
“[Castaway is] very confident or very worried that they have a
good claim. If they felt that they were in the middle on the
strength of their argument then they would I think be more
conciliatory in their tone and tactics.” Britton noted the letter
contained “the claim that Castaway owns the rights for
[Destination Mir]. This could kill the deal at NBC . . . . Mark
will have to disclose these claims. Mark will not get [insurance]
coverage for them. . . . We are very vulnerable on this point.”
Britton also described “go[o]d news in the letter” in that “[i]t
clearly admitted that there is an agreement that as drafted does
not entitle Castaway to any part of [Burnett’s] money from CBS.
[¶] Calling it a mutual mistake is a complete loser of an
argument . . . .” Britton concluded, “The goal is to get this
response out with a tone that communicates a disregard for their
claims if we can find some good facts . . . .” (Capitalization
omitted.)
On October 6, 2000 Britton sent Riggs an email with
suggested edits to a “PRIVILEGED AND CONFIDENTIAL”
letter drafted by an attorney for Irell & Manella on behalf of DJB
addressed to Castaway’s attorney in which DJB challenged
Castaway’s position that a “key provision” of the format rights
agreement between Castaway and DJB—limiting Castaway’s
compensation for Survivor—was “a result of mutual mistake.”
Britton added the following underscored language to one portion
8
of the letter, which argued the agreement’s “definition of ‘Format
Participation’ . . . is clear on its face and . . . accurately and
correctly memorializes and reflects the many discussions,
agreement of the parties and therefore [the] intention of
Mr[.] Burnett, Mr. Riggs and DJB.” Britton also inserted, “Your
reliance on prior agreements between the parties is also
misplaced. As you will note, not only does the agreement have a
merger clause, it was Mr. Parsons himself who pointed out in his
September 8, 1999 email to Mr. Riggs that the Format License
was intended to ‘replace’ the parties[’] prior agreements.” Britton
added, “If you seek reformation, we are confident an arbitrator
will find that the nature of Castaway’s format license agreements
mandates a reformed agreement consistent with Castaway’s
other agreements. That is, a license agreement where Castaway
does not participate in network revenues.” Britton added the
following underscored language to another portion of the letter
regarding Castaway’s claims to Destination Mir: “[I]f these
claims ever have the effect of impacting Mr. Burnett’s ability
successfully to produce Destination Mir, we will hold Castaway,
its partners and all related persons, entities and representatives
strictly accountable for all consequences . . . .” (Italics added.)
Britton further added language that “the complicated nature of
CBS’s matching rights in the international territories . . . might
prevent Castaway from extending current format licenses.” On
the final page of the document, Britton included a comment to
Riggs and Burnett, “Do not have your lawyers invite settlement
discussions. It then goes to the firms that are paid by the hour
and will just joust with each other. []Get rid of the settlement
language . . . .” (Capitalization omitted.)
9
5. DJB’s agreement with Cloudbreak and Britton and
Cloudbreak’s consulting agreement for Britton’s
services
On September 20, 2000 Riggs sent Burnett a letter
“confirm[ing] [their] agreement regarding the compensation DJB,
Inc. will pay Cloudbreak . . . for business/production/distribution
consulting services” related to Survivor and other shows.
According to Riggs’s letter, Burnett agreed that DJB would pay
Cloudbreak “an amount equal to 10% of all sums received by DJB
from these projects.” The letter stated, “Unless and until we sign
a more formal agreement, this letter shall replace our prior oral
agreement and constitute the entire agreement between us.”
Until late October 2000, Britton and Riggs had no
agreement regarding Britton’s compensation for his services to
Riggs and Cloudbreak. Up to this point, Britton had not been
paid for his services. In October 2000 Britton provided to Riggs a
draft agreement regarding Britton’s services. Under the draft
agreement, Cloudbreak was to pay Britton 35 to 40 percent of
Cloudbreak’s earnings for Britton’s services to Burnett and DJB.
Riggs hired attorney Samuel Spira and law firm Gorrey & Meyer
to review the draft agreement. According to Riggs, he attempted
to negotiate Britton’s compensation to “the standard
entertainment lawyer percentage of 5 or 10 percent,” but Britton
refused.
On October 23, 2000 Cloudbreak and Britton entered into a
“consulting agreement” (capitalization omitted), under which
Britton was to provide “business advisory and consulting
services” to Riggs and Cloudbreak “on projects Cloudbreak
undertakes for Mark Burnett and DJB Inc.” through
December 31, 2001 (the Agreement). The Agreement provided,
10
“Notwithstanding anything to the contrary in this Agreement,
the parties acknowledge that, within Cloudbreak, Britton shall
render his services only to Conrad Riggs and shall render
services to third parties as directed by Cloudbreak.” The
Agreement provided as to compensation, “Commencing July 1,
2000, Cloudbreak shall pay Britton 40% . . . of the gross
compensation . . . Cloudbreak receives from DJB . . . or other
third party sources in connection with services Cloudbreak
provides to DJB relating to” other DJB projects. The agreement
specifically provided Britton would be compensated for several
television projects, including Survivor and Destination Mir, but
specified as to Survivor that Britton would receive 35 percent of
the gross compensation received by Cloudbreak from DJB, rather
than 40 percent, subject to certain exclusions. The Agreement
made “[a]ll sums due to Britton in connection with this
Agreement . . . due and payable upon Cloudbreak’s receipt of its
compensation from DJB or any other sources.”
Paragraph 4 of the Agreement provided, “Britton and
Cloudbreak represent and warrant and it is a material
inducement to this Agreement that (a) each is an independent
contractor and not an agent, partner, joint venture partner,
common law employee or representative of the other . . . .”
(Underscoring omitted.)
Paragraph 9 provided, “This Agreement constitutes the
entire understanding of the parties hereto and supersedes all
prior agreements, understandings, discussions, statements and
negotiations of the parties relating to the subject matter herein
and may only be varied by a written instrument signed by both
parties.”
11
Paragraph 10 provided, “Cloudbreak and Britton shall
maintain the financial terms of this Agreement . . . in strict
confidence and shall not disclose the existence of the terms of this
Agreement, except to the extent required by law or to assert or
defend any claims, or, if required by a financial institution for
personal financial investment or personal banking purposes or to
fulfill the obligations under this [A]greement. Notwithstanding
the foregoing, Cloudbreak will disclose the existence and non-
financial terms of this Agreement to Mark Burnett no later than
December 10, 2000. Britton’s services to O’Donnell & Shaeffer
and/or to Irell & Manella and retention as an expert consultant
and/or expert witness in connection with certain disputes
involving DJB are permitted disclosures hereunder and shall not
violate the terms of this Agreement. Such disclosures by
Cloudbreak and services to O’Donnell and/or Irell & Manella,
however, will not in any way change, alter or waive Cloudbreak’s
or Britton’s confidentiality obligations as described in this
paragraph. Notwithstanding the foregoing, Cloudbreak
acknowledges people are and will continue to become aware
through Britton’s performance of his services hereunder that
Britton is rendering personal consulting services to Cloudbreak
in connections with the projects described herein.”
The Agreement did not state that Britton’s fee was
negotiable between Britton and Cloudbreak (and not set by law),
and it did not state to what extent Cloudbreak could be required
to pay Britton compensation for related matters not covered by
the Agreement.
12
6. Britton continues to advise Riggs regarding the CBS
arbitration and the dispute with Castaway
After execution of the Agreement, Britton continued to
advise Riggs with respect to DJB’s disputes with CBS and
Castaway. On October 31, 2000 Britton sent Riggs an email with
notes on a draft letter from attorney Pierce O’Donnell of
O’Donnell & Shaeffer on behalf of Burnett to CBS’s counsel
expressing disappointment with CBS’s failure to agree to the
terms set forth in its broadcast license fee agreement with
Burnett for production of Survivor. Britton inserted a note to
Riggs, “You have to decide what you want to do about suing for
re[s]cission. I am opposed to seeking this relief. There is no way
[Burnett] will support more than a million dollars in legal fees
and years of waiting while the litigation proceeds. I think
Viacom will not be bullied by the threat and will let the efforts to
go to court instead of arbitration become a new battle ground. I
am interested in hearing what [O’Donnell] has to say on this
matter. I think [the attorney’s] advice is not good here.”
(Capitalization omitted.) As to the letter’s assertion CBS had
failed timely to compensate Burnett, Britton commented, “My
suggestion here is don’t beat [CBS] up to[o] hard for nonpayment,
but, rather again press the attack on the issue of the lack of an
accounting, this they are weak on, make reference to the written
requests by date[] and the oral promises that have been made
about w[h]en they would [be] sent.” (Capitalization omitted.)
Britton continued, “[M]ake the point that you want all the money
in accordance with the side letter and you are . . . will[ing] to
indemnify them.” Britton recommended the letter include
“actu[a]l language from the agreement. . . . You do not want their
lawyers saying you are just posturing. Make them explain away
13
to [Moonves] the language that says the show can be sold
else[where] if CBS passes on the decision. Claim this is what was
discussed in the negotiations at the time since you would not
agree to the offers they w[ere] making and were willing to let a
third party decide what is fair.” (Capitalization omitted.)
On November 2, 2000 Britton sent Riggs an email
attaching Britton’s comments on a (significantly) revised draft of
O’Donnell’s letter to CBS’s counsel. Britton inserted the
following underscored language: “CBS has . . . refused to
recognize in the negotiations the fair market value of the show.
In direct contr[a]diction of the good[ ]faith intention of the fully
negotiated terms under which the show[’]s worth is to be
determined . . . .” (Capitalization omitted.) Britton also inserted
that CBS’s conduct was “a violation of the terms of the agreement
r[e]garding sharing in the advertising” and “CBS continues to
insist upon deducting over [$]1,000,000 in normal network costs
that are not permitted under the Survivor Agreement.”
(Capitalization omitted, italics added.) As to the letter’s threat
that if CBS failed to pay an arbitrator’s award for fair market
value, Burnett would shop Survivor to other networks, O’Donnell
commented that he and Shaeffer did not think the threat should
be included in the letter; Britton wrote in response, “I think you
should make the claim.” (Capitalization omitted.) Britton also
suggested the letter quote the arbitration provisions of the
Survivor agreement.
On November 3, 2000 Britton provided additional notes on
yet another draft of the letter. Riggs sent his and Britton’s
comments to O’Donnell and the legal team, with a copy to
Britton. Britton’s comments and revisions included: “stay away
from their strength i.e. a license fee is not the same as revenue
14
share”; “[CBS has] failed to negotiate in good faith in accordance
with the intent of the parties as reflected in the [Survivor]
Agreement so that the financial rewards would be fairly shared”;
“remind CBS that any claims that Castaway has made for a
portion of the revenue from the network [are] mistaken and that
Mark has in the side letter promised to indemnify [CBS] against
any incorrect payments”; and “CBS may choose not to abide by
the arbitrator opinion and thereby forgo its broadcast rights to
the program.”
In November 2000 Riggs asked Britton to meet with the
owners of Castaway regarding Burnett’s dispute with Castaway.
On November 7 Riggs sent to Britton a draft email for Britton to
send to Castaway’s owners. The email stated, “I am contacting
you on behalf of Mark Burnett and Conrad Riggs . . . . [¶] I
would like to speak to you directly regarding finding ways for . . .
you to work with [Burnett] and [Riggs]. I am not their attorney
and I am not part of their law firm, Irell & Manella. I have
known Conrad for many years and Mark for over two years. I
from time to time answer questions for them as a ‘friend of the
court.’ [¶] . . . [I]t would be much more fruitful for both parties
to find a business resolution instead of a legal one . . . .” The
same day, Britton sent the email as drafted by Riggs to
Castaway’s owners, copying Riggs.
On November 8, 2000 Britton sent Riggs an email
“outlin[ing] the things that I believe will motivate CBS to settle
and the things that I believe CBS is counting on to win if there is
arbitration.” Britton highlighted the “need to show the arbitrator
the value of the show in the open market as provided in the
[Survivor] agreement.” Britton opined CBS would want to avoid
“gossip” about the dispute, and “[t]here is I think no
15
confidentiality in the [Survivor] agreement regarding anything
other than the economic terms so [CBS’s] behavior could be
discussed very publicly. If this could also produce a credible
discussion of punitive damages because CBS is consistently bad[,]
great. I doubt any compensatory damages could be proven
because I think it would be difficult to prove economic harm.”
Britton then noted the language in the Survivor agreement—
providing the arbitrator with “authority to set the Broadcast
License Fee up to an amount no greater than the amount then
being paid by CBS for any similar programming”—favored CBS
in the arbitration. Britton listed the positions he expected CBS
to take in the arbitration and the best responses to each.
On November 10, 2000 Britton sent Riggs another email
regarding the upcoming arbitration with CBS. Britton attached
to the email a document titled “outline of CBS and Burnett
arrangement for Survivor.” (Capitalization omitted, italics
added.) The document began, “Listed here are reasons for
[Moonves] to decide the terms of the deal rather than an
arbitrator.” In the document, Britton analyzed the terms of the
arbitration provision of the Survivor agreement. Britton noted
the outcome of the arbitration was uncertain, stating, “Both sides
have arguments that make some sense. A similar show is really
best described as a very successful show.” Britton wrote, “The
agreement invites the arbitrator to look at amounts other
networks pay. The ‘up to’ limiting amount being paid by CBS to
be effective must have similar programming and since CBS does
not have any similar programming the limit will not apply. . . .
So the provision makes sense as a mechanism to provide for
payment when CBS does not have similar programming. . . .
Remember the phrase in the agreement is ‘fair market’ value that
16
includes the criteria of ‘reputation of the Producer in the
television industry.’ . . . [T]his is again a reason for the arbitrator
to not be limited by the phrase [‘]similar show[,’] since there is no
similar show when all the factors [in the Survivor agreement] are
considered.” Britton noted, “[T]he agreement has the very broad
arbitration provision that looks at so many elements and gives
the arbitrator so much information. . . . Even if the arbitrator
mistakenly rules that a direct portion of the revenue is not due as
a bonus[,] the amount to be paid for the total weekly fee could
easily be in the multiple of millions and cost CBS more in the
future if the show continues . . . . Remember the arbitration is
after each cycle.” Britton continued, “I have fought to hold the
letter your lawyers asked to sen[d] because of its claim that CBS
engages in fraud . . . . There are many examples, without
mentioning fraud, of bad things CBS has done . . . . There has
been no reasonable accounting. There has been no payment even
though the letter provides that Mark indemnifies CBS against
any claims Castaway might make against it . . . . There are
copyright claims for the VH-1 Survivor show. Let’s keep all the
stuff private.” (Italics added.) Later that day, Britton sent Riggs
a revised version of the document, to which Britton added under
a heading titled “Certainty,” “There are claims to be raised that
have as a remedy re[sci]ssion. The amount at stake is so high
why risk it.” (Capitalization omitted.)
On November 21, 2000 Riggs sent Moonves at CBS a
spreadsheet prepared by Britton showing projected revenues for
Survivor based on different economic assumptions.
On November 25, 2000 Britton sent Riggs an email
expressing his concerns about a letter from attorney John
Shaeffer of O’Donnell & Shaeffer to CBS’s counsel demanding
17
CBS release money it was withholding that was owed to Burnett.
Britton wrote, “I want to talk to [Shaeffer] . . . . I want to know
what the strategy is they are following at this point. I want a
mock argument to be made Monday. I see no understanding on
their part regarding the strengths and weaknesses of the case. I
do not see that they have any understanding of the arguments I
put forth in the desperate hours of those first drafts they
prepared that said nothing. I am concerned that they are not
tough enough for the fight ahead. It will be won on the contract if
at all[,] not from any posturing or intimidation.” Two days later
Britton sent Riggs an email, copied to O’Donnell and Sheffer,
commenting on another draft letter from O’Donnell to CBS’s
counsel again objecting to CBS withholding payment to Burnett.
Britton commented, “My advice here is to disregard this whole
line of attack.” (Capitalization omitted.)
The same day Riggs forwarded to Britton an email from an
attorney at O’Donnell & Shaeffer containing a list of criteria for
expert witnesses for the arbitration. Britton responded, “I will
call them.” Britton then contacted at least two possible experts
for the arbitration, including retired television executive Larry
Hoffner, who later drafted a declaration for the arbitration.
On November 30, 2000 Britton sent Riggs an email, copied
to O’Donnell and Shaeffer, with a document titled “notes on
attack.” In the document, Britton advised Riggs, “[T]hey must be
arguing that the fair market value for the show is less than they
paid for the first cycle. I think this is a goofy argument for them
to be making and I am not sure they have thought it through. [¶]
Our point is that we don’t really care if the deal is directly for
advertising. . . . We need to abandon what the structure of the
deal is and let CBS rail on form over substance.”
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Also on November 30, Shaeffer sent an email to Britton,
copied to O’Donnell, stating, “I completely agree with your
analysis. I have never wanted to argue that an advertiser
supplied is the same as a license fee. Rather I wanted to argue
what a fair market value is. [¶] A key point of [your] analysis is
that a comparable license fee is not simply what is paid on any
give[n] show, but rather what a network would pay for a show
hitting the market that had under its belt a season like Survivor
did last year . . . .” (Italics added.)
On December 11, 2000 Britton sent Shaeffer an email with
a copy to Riggs, providing comments on a draft joint proposed
order for the arbitration with CBS. Britton identified the scope of
the confidentiality clause as a problem for information gathering
and the engagement of experts. Britton wrote, “I need to talk to
people without . . . the restriction of confidentiality.” Around
December 26, 2000 Britton reviewed a draft declaration of expert
witness Larry Hoffner prepared to support Burnett’s claims in
the arbitration.
In early January 2001 CBS and Burnett settled their
dispute over future cycles of Survivor. Britton continued to
advise Riggs on other disputes with CBS, while also preparing
pitch materials for other shows with Burnett and Riggs.
On March 23, 2001 Britton provided notes on a draft letter
from O’Donnell & Shaeffer to an arbitrator regarding a dispute
between Burnett and CBS over The Survivor Phenomenon, an
hour-long program aired by CBS about the first season of
Survivor. Britton wrote, “Is not the issue here not who produced
[The Survivor Phenomenon] but that CBS aired it? . . . They
have an obligation to charge for the rights to maximize [their
revenue] . . . . The affiliate [who produced The Survivor
19
Phenomenon] would not be free to use the rights and material if it
was for some other network.” (Capitalization omitted.)
Regarding the letter’s assertion the parties did not contemplate a
mid-season “derivative” show, Britton commented, “I will bet they
knew they wanted to rest the show so they could [get it into]
sweeps and did not [tell] you. This could be import[a]nt later if
you challenge the settlement as fraudul[e]nt.” (Capitalization
omitted.)
7. Cloudbreak’s payments to Britton
Britton made repeated requests for payment for the second
cycle of Survivor. Beginning on January 31, 2003 and continuing
until December 18, 2006, Cloudbreak made periodic payments to
Britton’s company, LLB Services, Inc., totaling $1,877,000. On
the invoice accompanying each of the 11 checks issued during
this period, Cloudbreak specified as the description, “Legal fees.”
(Capitalization omitted.)
B. The Complaint and Cross-Complaint
Britton filed this action on November 27, 2012 against
Riggs and Cloudbreak. Britton’s operative second amended
complaint alleged causes of action for breach of contract,
conversion, open book account, money had and received, quantum
meruit, fraud, and receipt of stolen property. Britton alleged he
provided business advisory and consulting services to Cloudbreak
pursuant to the Agreement. Riggs made “interim payments to
Britton for cycles of Survivor—which continued through 2006. . . .
Riggs represented (falsely and with the intent to deceive Britton)
that these payments were 35% of the monies he received for each
cycle of Survivor.” Britton alleged Riggs filed suit against
20
Burnett, and the two later settled. Riggs misled Britton to
believe he was no longer receiving payments from Burnett
although Cloudbreak was continuing to receive Survivor
payments directly from CBS. Britton alleged Cloudbreak failed
to perform its obligations under the Agreement, including failing
to account for moneys received from Burnett, withholding money
it owed Britton, failing to consult with Britton about Riggs’s
dispute with Burnett, and settling that dispute without obtaining
Britton’s consent. Britton further alleged the Agreement entitled
him to payments for several shows Burnett produced after
Survivor. Britton sought damages exceeding $16 million.
In January 2013 Riggs and Cloudbreak filed a cross-
complaint against Britton. Their operative first amended cross-
complaint alleged causes of action for professional negligence,
breach of fiduciary duty, declaratory relief, and unjust
enrichment/restitution. Riggs and Cloudbreak alleged they
retained Britton to provide legal and business assistance “in
various matters,” including negotiations and the arbitration with
CBS regarding Survivor. Britton caused Riggs and Cloudbreak
to enter into the Agreement, which “was unfair, unreasonable,
unconscionable, and illegal,” and voidable as a contingency fee
agreement for legal services that did not comply with
section 6147. Riggs and Cloudbreak further alleged Britton
failed to advise them that their agreement with Burnett was
similarly voidable by Burnett for failure to comply with section
6147, which “forced [Riggs and Cloudbreak] to settle their lawsuit
with Burnett for less than its worth.”
21
C. The Parties’ Motions for Summary Adjudication
On July 17, 2015 Britton moved for summary adjudication
of the following issue central to Riggs and Cloudbreak’s
counterclaims and affirmative defenses: “No fiduciary duty or
attorney-client relationship existed between Britton, on the one
hand, and Cloudbreak Entertainment, Inc. and Conrad Riggs, on
the other, because Britton was not their attorney.” Britton
argued he did not owe Riggs and Cloudbreak a fiduciary duty
because the Agreement did not create a duty and he did not
practice law on their behalf. According to Britton’s supporting
declaration, he “never . . . practiced law at any job in any
capacity.” Britton averred further, “In the course of rendering my
services to Burnett, his affiliated companies, Riggs, and
Cloudbreak, I did not consult legal texts, treatises, statutes or
case law.”
On the same date Riggs and Cloudbreak moved for
summary adjudication of Britton’s breach of contract cause of
action based on voidability of the Agreement as a contingency fee
agreement that failed to meet the requirements of section 6147.4
Riggs stated in his supporting declaration, “At all times during
which Britton advised Cloudbreak, I (and Cloudbreak) believed
that an attorney-client relationship existed between Britton and
4 Riggs and Cloudbreak also moved for summary
adjudication of Britton’s causes of action for breach of contract,
open book account, money had and received, and quantum meruit
on the basis the claims were barred by the applicable statutes of
limitation. They also argued Britton’s causes of action for open
book account and money had and received failed “to constitute a
cause of action.” The trial court denied Riggs and Cloudbreak’s
motion on these issues.
22
Cloudbreak.” Riggs averred, “[F]rom July 2000 through
2002 . . . , Cloudbreak, acting through me, continually sought,
received, and relied upon Britton’s legal advice and legal
acumen.”
In opposition to Britton’s motion, Riggs and Cloudbreak
filed excerpts from the deposition of Riggs, in which he addressed
the July 7, 2000 email he drafted and Britton sent to Castaway’s
owners, in which Britton stated he was not Burnett’s and Riggs’s
attorney. Riggs testified, “[Burnett] asked me to make sure
[Britton] said that he doesn’t represent both of us. He didn’t
want any impression that [Britton] represented Mark Burnett, so
he said, ‘Tell them that he doesn’t represent both of us.’” Riggs
and Cloudbreak also relied on the same evidence they submitted
in support of their motion for summary adjudication.
In his declaration in opposition to Riggs and Cloudbreak’s
motion, Britton stated, “To the extent I made comments on
letters or other documents prepared by Burnett’s attorneys, those
comments were based on the law and legal concepts that
Burnett’s attorneys had explained to me.” Britton also relied on
the same evidence he submitted in support of his motion for
summary adjudication.
D. The Trial Court’s Ruling on the Motions
On October 1, 2015 the trial court granted Britton’s motion
for summary adjudication and denied Riggs and Cloudbreak’s
motion for summary adjudication of Britton’s breach of contract
claim. In its written ruling, the court found there was no triable
issue of fact whether there was an attorney-client relationship
between the parties because Britton did not act as attorney for
Riggs or Cloudbreak. The court relied on the language of the
23
Agreement, which provided that Britton would render “business
advisory and consulting services,” and did not include “[t]he
phrases ‘legal services,’ ‘legal advice’ and ‘legal representation.’”
Further, the Agreement stated that Britton and Cloudbreak were
independent contractors and “not agents, partners, joint venture
partner[s], common law employees or representatives of the
other,” thereby “disclaim[ing] a fiduciary relationship.” The court
reasoned the disclaimer was effective because the contract did
not “‘require legal services’ or even purport to offer them.”
The trial court noted Riggs was himself an attorney and
Cloudbreak was represented by attorneys with respect to
negotiation of the Agreement. The court also relied on the
November 7, 2000 email drafted by Riggs and sent by Britton to
Castaway’s owners, in which Britton stated he was not an
attorney for Riggs or Burnett. The court found Britton “was not a
practicing lawyer” despite being an active member of the
California Bar, because Britton had never worked for a law firm
and never “made a court appearance [or] served as counsel of
record” in any court. The court found Britton’s work for Riggs
and Cloudbreak “did not require [Britton] to do any legal
research or cite cases,” but rather, it consisted of “participating in
negotiations, providing economic models (spreadsheets) and
pitching new show ideas on Burnett projects.” The court
reasoned Britton’s negotiations were based on his “knowledge of
the economics underlying the television business and his strong
relationships in the television business. Anyone who
understands the television business could have engaged in the
negotiations that Britton did, as proven by the fact that” Britton
negotiated with non-lawyers on behalf of Riggs and Cloudbreak.
The court concluded, “Negotiating is not the practice of law.” The
24
court denied Riggs and Cloudbreak’s motion for summary
adjudication of Britton’s breach of contract cause of action on the
same grounds.
E. The Jury Trial, Verdict, and Posttrial Proceedings
Prior to the start of the jury trial, the trial court reserved
for a bench trial Britton’s claim that Riggs and Cloudbreak were
equitably estopped from asserting the statute of limitations as a
defense and Britton’s claim that Riggs was the alter ego of
Cloudbreak.
In February 2016 a jury trial proceeded on Britton’s causes
of action for breach of contract against Cloudbreak and money
had and received against Cloudbreak and Riggs.5 The jury found
for Britton on both claims. The jury found Britton’s breach of
contract claim was barred by the statute of limitations to the
extent it alleged harm that occurred before June 14, 2008; the
jury awarded Britton $0 for past economic loss suffered before
that date and $489,850 for past economic loss suffered thereafter.
On Britton’s claim for money had and received, the jury found the
statute of limitations barred the alleged harm to Britton that
occurred before June 14, 2009, and it awarded Britton $0 in
damages. On March 14, 2016 the trial court entered a judgment
on the jury’s verdict.
5 On March 19, 2015 the trial court sustained a demurrer
filed by Riggs and Cloudbreak to Britton’s causes of action for
conversion and receipt of stolen property without leave to amend.
The court also granted a motion to strike the cause of action for
fraud on the ground that Britton had added the cause of action to
his second amended complaint without being granted leave to
add a new claim.
25
Britton filed a motion for a new trial, arguing the damages
awarded by the jury were inadequate as to both causes of action
and the jury’s verdict was contrary to law because its finding that
part of Britton’s claimed harm occurred before June 14, 2008 was
inconsistent with its finding that Britton suffered no damages
prior to that date. The trial court granted a new trial on Britton’s
claim for money had and received on the ground that the jury’s
damages award was inadequate and inconsistent with its finding
of liability on that claim. The court also concluded the jury’s
verdict was ambiguous as to whether its liability finding applied
to Cloudbreak only or to both Cloudbreak and Riggs. The court
denied the motion as to Britton’s claim for damages for breach of
contract. In ruling on the motion, the court also found that Riggs
and Cloudbreak were not equitably estopped from asserting a
statute of limitations defense to Britton’s claims.
On May 3, 2016, the trial court issued an order taking the
parties’ respective motions for attorneys’ fees off calendar
pending a retrial on the claim for money had and received. The
court also ordered that the bench trial on Britton’s alter ego claim
be reserved pending resolution of Riggs and Cloudbreak’s
intended appeal.
F. The Parties’ Premature Appeal and Subsequent Proceedings
In December 2018 we reversed the trial court’s order on
Britton’s motion for a new trial, concluding it was premature and
therefore void. We dismissed the parties’ cross-appeals from the
judgment entered on the jury’s verdict, concluding the judgment
was not appealable because it was not a final judgment in light of
the trial court’s failure to hold a bench trial on the reserved
issues. (Britton v. Riggs, supra, B272078.)
26
On remand, the trial court found against Britton on the
reserved issues of equitable estoppel and alter ego. Britton again
moved for a new trial. Riggs and Cloudbreak moved for judgment
notwithstanding the verdict, arguing Britton’s claim for money
had and received was duplicative of his breach of contract claim,
and therefore could not result in another recovery. Each side
filed a motion for attorneys’ fees.
The trial court denied Britton’s motion for a new trial and
his request for prejudgment interest. The court granted
Cloudbreak’s motion for judgment notwithstanding the verdict,
but denied the motion as to Riggs. The court denied each side’s
motion for attorneys’ fees, finding there was no prevailing party
for purposes of attorneys’ fees recovery.
The trial court entered judgment on October 17, 2019 and
an amended judgment on January 10, 2020. Britton timely
appealed. Riggs and Cloudbreak timely cross-appealed.6
DISCUSSION
A. Standard of Review
Summary adjudication is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
6 In accordance with the parties’ proposals for a briefing
sequence, we ordered the parties to brief Riggs and Cloudbreak’s
cross-appeal (this appeal) before briefing commences on Britton’s
appeal. Britton’s appeal is taken from the October 17, 2019
judgment, the November 20, 2019 order denying Britton’s motion
for attorneys’ fees, the December 10, 2019 order granting in part
Riggs and Cloudbreak’s motion for judgment notwithstanding the
verdict, and the December 11, 2019 order denying Britton’s
motion for a new trial and request for prejudgment interest.
27
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618; Delgadillo v. Television Center, Inc. (2018)
20 Cal.App.5th 1078, 1085.) “‘“‘“We review the trial court’s
decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained.”’ [Citation.] We liberally construe the
evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”’”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; see
accord, Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600,
607).)
The party moving for summary adjudication has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 853; Valdez v. Seidner-Miller, Inc., supra, 33 Cal.App.5th at
p. 607.) If the moving party satisfies this initial burden, the
burden shifts to the opposing party to present evidence
demonstrating there is a triable issue of material fact. (Code Civ.
Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Valdez, at p. 607.)
We liberally construe the opposing party’s evidence and resolve
any doubts about the evidence in favor of that party. (Regents of
University of California v. Superior Court, supra, 4 Cal.5th at
p. 618; Valdez, at p. 608.)
Where the facts are undisputed, “[t]he existence of an
attorney-client relationship involves a question of law that we
review de novo.” (Sprengel v. Zbylut (2019) 40 Cal.App.5th 1028,
1042; accord, Wood v. Superior Court (2020) 46 Cal.App.5th 562,
28
580.) “[A]ny conflict in the evidence of an attorney-client
relationship is a question of fact for the trial court to decide,
which we uphold if supported by substantial evidence.”
(Sprengel, at p. 1042.)
B. The Trial Court Erred in Determining the Undisputed Facts
Do Not Show Britton Provided Legal Services to Cloudbreak
“An attorney-client relationship is not created by the
unilateral declaration of one party to the relationship.” (Koo v.
Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729;
accord, Fox v. Pollack (1986) 181 Cal.App.3d 954, 959 [individuals
cannot unilaterally create an attorney-client relationship without
the agreement of the attorney].) “Rather, the relationship can
only be created by contract, express or implied.” (Koo, at p. 729;
accord, Responsible Citizens v. Superior Court (1993)
16 Cal.App.4th 1717, 1732; Fox, at p. 959.) “‘When a party
seeking legal advice consults an attorney at law and secures that
advice, the relation of attorney and client is established prima
facie.’” (People ex rel. Dept. of Corporations v. SpeeDee Oil
Change Systems, Inc. (1999) 20 Cal.4th 1135, 1148; accord, Wood,
supra, 46 Cal.App.5th at p. 581 [“Ordinarily, when a party seeks
legal advice from a lawyer, and the lawyer provides such advice,
an attorney-client relationship is formed.”]; Benninghoff v.
Superior Court (2006) 136 Cal.App.4th 61, 72 (Benninghoff).)
Riggs and Cloudbreak contend the trial court erred in
determining they did not have an attorney-client relationship
with Britton because the evidence shows Riggs sought legal
advice from Britton (on behalf of Cloudbreak), and Britton
provided it. Britton counters that his services consisted only of
negotiating, providing economic models, and pitching new show
29
ideas, none of which constituted the practice of law. Britton also
argues the Agreement demonstrates he never agreed to act as
Cloudbreak’s attorney. Riggs and Cloudbreak have the better
argument.
It is true “when the attorney acts merely as a negotiator for
the client or is providing business advice,” the relationship
between the parties “is not one of attorney-client.” (Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 735;
accord, Watt Industries, Inc. v. Superior Court (1981)
115 Cal.App.3d 802, 805 [attorney-client privilege did not attach
“where . . . the attorney act[ed] merely as a business agent for the
client in conveying the client’s position to a contracting party”].)
And it is undisputed that some portion of Britton’s services
consisted of conducting negotiations regarding Survivor and
using his business connections to assist the sale of television
shows in development by Riggs and Burnett. But a substantial
portion of Britton’s services involved providing advice on
arbitration strategy, crafting legal arguments based on
interpretation of the Survivor agreement, reviewing and
critiquing letters drafted by Burnett’s counsel, and drafting a
memorandum assessing the validity of Castaway’s claims, all of
which are archetypal legal advice a lawyer would provide a client.
Britton does not dispute he provided these services pursuant to
the Agreement.
That Britton never appeared in court or practiced at a law
firm does not alter the character of the services he provided. The
practice of law includes not only “‘“the doing and performing
services in a court of justice,”’” but also the provision of “legal
advice . . . whether or not . . . rendered in the course of litigation.”
(Birbrower, Montalbano, Condon & Frank v. Superior
30
Court (1998) 17 Cal.4th 119, 128; accord, People v. Merchants
Protective Corp. (1922) 189 Cal. 531, 535 [the practice of law
“‘includes legal advice and counsel, and the preparation of legal
instruments and contracts by which legal rights are secured
although such matter may or may not be []pending in a court’”].)
“[T]he resolution of legal questions for another by advice and
action is practicing law ‘if difficult or doubtful legal questions are
involved which, to safeguard the public, reasonably demand the
application of a trained legal mind.’” (Baron v. City of Los
Angeles (1970) 2 Cal.3d 535, 543; see Altizer v. Highsmith (2020)
52 Cal.App.5th 331, 341 [assisting in renewal of judgment by
filling in factual information about original judgment and
renewal on two-page Judicial Council form was “‘clerical’” work
that did not require resolution of “‘“‘difficult or doubtful legal
questions’”’” that might “‘“‘reasonably demand the application of
a trained legal mind,’”’” and thus was not the unauthorized
practice of law].)
It is undisputed that at the inception of the professional
relationship memorialized in the Agreement, Riggs told Britton,
“[I]f you help me, I’m not going to hire another lawyer, so you’re
going to do this work, whatever it is.” Following Riggs’s
statement, Britton began to provide a mix of business and legal
advice to Cloudbreak through Riggs. The professional services
provided by Britton as to the CBS dispute required him to
interpret the Survivor agreement, and based on that agreement,
to advise Riggs and Cloudbreak as to arbitration strategy, to
gather evidence in support of the arbitration’s goals (including
interviewing two potential expert witnesses, one of whom
provided a declaration supporting Burnett’s position), and to
evaluate the relative strength of Burnett’s and CBS’s legal
31
arguments. Britton evaluated the scope of the arbitrator’s
authority, as well as CBS’s rights in relation to the arbitrator’s
decision. He also advised as to the scope of the confidentiality
clauses in existing and proposed agreements. Britton noted the
possibility of seeking punitive damages, at the same time opining
that compensatory damages would be unavailable “because . . . it
would be difficult to prove economic harm.”
As to Castaway, Britton drafted a legal memorandum
evaluating the merits of Castaway’s claimed rights to Survivor.
He labeled his October 5, 2000 cover email and attached
memorandum to Riggs as privileged and confidential.7 In his
memorandum, Britton opined that Castaway’s affirmative
defense of mutual mistake with respect to the format rights
agreement with DJB was “a complete loser of an argument.” He
then suggested edits to a draft letter to Castaway’s attorney
marked privileged and confidential that DJB’s attorney at Irell &
Manella had drafted, addressing Castaway’s claim of mutual
mistake. Britton noted the format rights agreement had a
merger clause, and he suggested adding to the letter an
argument why the arbitrator would not order reformation of the
agreement. With respect to Castaway’s claims to Destination
Mir, Britton suggested making clear that DJB intended to hold
not only Castaway accountable for any losses, but “its partners
and all related persons, entities and representatives” as well. He
counseled against initiating settlement discussions with
Castaway, and emphasized, “The goal is to get this response out
7 In deposition testimony, Britton did not deny designating
the document as privileged and confidential but stated, “I don’t
know what privileged and confidential means.”
32
with a tone that communicates a disregard for their claims if we
can find some good facts . . . .”
Britton repeatedly employed principles of contract
interpretation to fashion legal arguments Burnett and
Cloudbreak could assert. For example, in November 2000 Britton
sent a memorandum to Riggs regarding the upcoming CBS
arbitration that analyzed the arbitration provision of the
Survivor agreement. With respect to the dispute over payments
for renewal of Survivor for future cycles, Britton focused on the
term “similar show” (referencing the parties’ agreement that
limited the arbitrator’s award of licensing fees to what CBS paid
for similar programming) to argue the term would not limit the
arbitrator’s award because “there is no similar show when all the
factors are considered,” in light of Survivor’s success and
Burnett’s reputation. Britton later provided legal arguments and
critiqued those asserted by the O’Donnell & Shaeffer attorneys on
multiple drafts of a letter to CBS, in which Britton commented to
Riggs on Burnett seeking rescission of the agreement, “I think
[the attorney’s] advice is not good here.” Britton suggested the
letter quote from the Survivor agreement, highlight what was
discussed at negotiations, argue that CBS had violated the
agreement as to “sharing in the advertising,” “stay away from
their strength,” and remind CBS of Burnett’s side letter
promising to indemnify CBS against any incorrect payments.
Britton points to the statements in his declaration that his
“comments on letters or other documents prepared by Burnett’s
attorneys . . . were based on the law and legal concepts that
Burnett’s attorneys had explained to me.” But this statement
runs contrary to the undisputed evidence that Britton disagreed
with the legal judgments made by those attorneys. In addition to
33
the examples above, Britton asserted Burnett’s attorneys
misunderstood the legal effect of Burnett’s agreement to
indemnify CBS against Castaway’s claims, directing them to
“look at the language again in the side letter.” And Britton
repeatedly insisted the attorney correspondence he reviewed
quote and rely more directly on contract language, rather than
“posturing or intimidation.” He counseled against making direct
accusations of fraud against CBS, while flagging evidence that
could be used to challenge the settlement reached with CBS
regarding future cycles of Survivor as fraudulent.
Aetna Casualty & Surety Co. v. Superior Court (1984)
153 Cal.App.3d 467 is instructive. There, an insurance company
asserted attorney-client privilege over its former attorney’s files
regarding the attorney’s investigation of an insurance claim. The
company had hired the attorney to conduct the investigation and
make a coverage determination under the policy. In concluding
the documents were protected by the attorney-client privilege,
the court reasoned, “The attorney was given a legal document
(the insurance policy) and was asked to interpret the policy and
to investigate the events that resulted in damage to determine
whether Aetna was legally bound to provide coverage for such
damage.” (Id. at p. 477.) The court observed, “This is a classic
example of a client seeking legal advice from an attorney.” (Ibid.)
Here, Britton interpreted the agreements with CBS and
Castaway, opined about the respective rights of the parties to the
agreements, and crafted arguments in support of Cloudbreak,
Riggs, and Burnett.
Britton relies on paragraph 4 of the Agreement, which
disclaims any agency or representative relationship between
Britton and Cloudbreak, to argue the Agreement could not create
34
an attorney-client relationship, which is premised on agency
principles. But as the Court of Appeal observed in Benninghoff,
supra, 136 Cal.App.4th 61, a written disclaimer does not prevent
the existence of an attorney-client relationship if the attorney is
in fact performing legal services or offering legal advice. (Id. at
p. 73 & fn. 10; see State Bar Standing Com. on Prof.
Responsibility and Conduct, Formal Opn. No. 1999-154 [“no
disclaimer [of an attorney-client relationship] will be effective if
[attorney] is in fact performing legal services or offering legal
advice”].) Britton attempts to distinguish Benninghoff as
involving a contract that “require[d] legal services” (Benninghoff
at p. 73), whereas the Agreement does not contain such a
requirement. This is a distinction without a difference—as in
Benninghoff, the disclaimer in the Agreement does not negate the
fact Britton provided legal advice under the Agreement to Riggs
and Cloudbreak, in addition to the business counsel and
negotiation services he performed.8
8 People v. Gionis (1995) 9 Cal.4th 1196, relied on by Britton,
is inapposite. There, the defendant contacted a friend who was
an attorney regarding a divorce proceeding initiated by the
defendant’s wife. (Id. at p. 1203.) The attorney advised the
defendant he could not represent him because of a conflict, but
they subsequently met to discuss the divorce. (Ibid.) In later
litigation, the defendant claimed his statement to the attorney at
the meeting that his wife “‘had no idea how easy it would be for
him to pay somebody to really take care of her’” was a protected
attorney-client communication. (Ibid.) The Supreme Court held
the statement was not protected, reasoning the attorney’s
“unequivocal refusal to represent defendant, made before any of
the incriminating disclosures were made, detracts significantly
from defendant’s claim of privilege.” (Id. at p. 1212.) As
35
Britton also relies on the November 7, 2000 email Riggs
prepared for Britton to send to the owner of Castaway stating, “I
would like to speak to you directly regarding finding ways for . . .
you to work with [Burnett] and [Riggs]. I am not their attorney
and I am not part of their law firm, Irell & Manella. . . . I from
time to time answer questions for them as a ‘friend of the court.’”
In his deposition, Riggs testified as to the email, “[Burnett] asked
me to make sure [Britton] said that he doesn’t represent both of
us. He didn’t want any impression that [Britton] represented
Mark Burnett, so he said, ‘Tell them that he doesn’t represent
both of us.’” Burnett was correct that Britton did not represent
him—the Agreement was between Britton and Cloudbreak, with
Riggs acting on behalf of Cloudbreak. Moreover, in providing his
services to Cloudbreak, Britton performed multiple roles, some
legal, and some not. It is clear from the email to Castaway’s
owners that Britton was reaching out “to find a business
resolution instead of a legal one.” The fact Britton was acting in
a business capacity in talking to Castaway’s owners does not
mean Britton did not provide legal advice to Cloudbreak and
Riggs in other contexts, as shown by Britton’s many emails,
memoranda, and comments on attorney correspondence showing
just this.
Britton relies on Zelkin v. Caruso Discount Corp. (1960)
186 Cal.App.2d 802 to support his argument that his
participation in negotiations under the Agreement was not legal
discussed, the disclaimer in the Agreement was not effective to
prevent an attorney-client relationship from forming, and thus
there is no “unequivocal” evidence that an attorney-client
relationship was not formed.
36
work because he did not “do any legal research or cite cases.”
Zelkin is distinguishable. There, the Court of Appeal affirmed
the trial court’s determination an accountant did not practice law
in representing his client before the Internal Revenue Service,
reasoning, “In this case plaintiff testified that he read no law nor
did he cite any to the Internal Revenue agent, thus he could be
said to have been practicing law only if on the face of the problem
which he was negotiating no discussion of that problem would be
possible without reference to legal issues and no persuasive
argument could be made which did not include a discussion of
legal principles.” (Id. at p. 806.) Although legal research may
constitute evidence of the practice of law, Britton cites to no
authority, nor is there, for the proposition such evidence is
required to show an attorney-client relationship. Rather, as
discussed, where the resolution of “‘difficult or doubtful legal
questions’” reasonably require “‘the application of a trained legal
mind,’” the attorney is providing legal services. (Baron v. City of
Los Angeles, supra, 2 Cal.3d at p. 543.) Britton repeatedly
provided this type of analysis of difficult legal questions.
Because Britton provided legal services under the
Agreement as a matter of law, the trial court erred in granting
Britton’s motion for summary adjudication. Britton carried his
initial burden based on the Agreement and Britton’s declaration
to show there was no attorney-client relationship between him
and Cloudbreak and Riggs. But Cloudbreak and Riggs met their
burden to show Britton provided legal advice and other services
to Cloudbreak and Riggs based on the undisputed evidence
submitted in opposition to the motion. Based on the same
evidence, Riggs and Cloudbreak met their burden in their motion
for summary adjudication of Britton’s breach of contract claim to
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show an attorney-client relationship (and thus the Agreement
was voidable under section 6147), and Britton did not carry his
burden to present evidence demonstrating there is a triable issue
of material fact. Therefore, the court also erred in denying Riggs
and Cloudbreak’s motion for summary adjudication based on the
absence of an attorney-client relationship.
C. The Agreement Provides for a Contingency Fee
Britton alternatively contends that even if an attorney-
client relationship existed between him and Cloudbreak (or
Riggs), the Agreement does not fall within the requirements of
section 6147, and thus is not voidable, because it is not a
contingency fee agreement. Section 6147, subdivision (a),
provides that where “[a]n attorney . . . contracts to represent a
client on a contingency fee basis,” the written contract shall
include, among other things, a “statement as to what extent, if
any, the client could be required to pay any compensation to the
attorney for related matters that arise out of their relationship
not covered by their contingency fee contract” and, in cases other
than medical malpractice, “a statement that the fee is not set by
law but is negotiable between attorney and client.” Under section
6147, subdivision (b), “[f]ailure to comply with any provision of
this section renders the agreement voidable at the option of the
plaintiff, and the attorney shall thereupon be entitled to collect a
reasonable fee.”
Britton argues the Agreement is not a contingency fee
agreement within the meaning of section 6147 because it does not
condition Britton’s right to payment on Britton achieving a
particular result for Cloudbreak. “[S]ection 6147 encompasses
contingent fee arrangements regarding litigation and
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transactional matters.” (Arnall v. Superior Court (2010)
190 Cal.App.4th 360, 368.) “As section 6147 does not define
‘contingent fee,” we look first to the term’s ‘plain meaning’ for
guidance on these questions. [Citation.] The term ‘contingency
fee contract’ is ordinarily understood to encompass any
arrangement that ties the attorney’s fee to successful
performance, including those which incorporate a noncontingent
fee based on a fixed rate of payment.” (Arnall, at pp. 369-370; see
Estate of Stevenson (2006) 141 Cal.App.4th 1074, 1084 [“Fees
under a contingency fee agreement are not a sure thing.”].)
Contrary to Britton’s assertion, a contingency fee
agreement need not condition the attorney’s fee on the
achievement of a particular result. Here, the Agreement is a
contingency fee agreement because it “ties [Britton’s] fee to
successful performance” in that Britton’s services were designed
to increase DJB’s earnings on Survivor and other projects
performed in collaboration with Cloudbreak, thereby increasing
the amount of money flowing to Cloudbreak and ultimately to
Britton. Britton argues the Agreement entitled him to
compensation “regardless of the outcome of his services,” but
Britton would have received nothing if DJB’s deals with CBS fell
through. Britton’s assistance enabled Cloudbreak and DJB to
secure the production of future cycles of Survivor at CBS. This
was not a foregone conclusion because the arbitration clause of
the Survivor agreement (according to Britton’s interpretation)
allowed CBS to walk away from the arbitration decision if it was
not satisfied with the result. Britton also advised Cloudbreak
over disputed funds withheld by CBS as costs during Survivor’s
first cycle. If Britton’s services proved effective, the distribution
of those funds to DJB would redound to Cloudbreak (which was
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entitled to 10 percent of DJB’s compensation on the project),
thereby increasing Britton’s fee. If his services were not effective
and no payment was made by CBS to DJB, Britton would receive
nothing.
Likewise, Britton provided services with respect to DJB’s
dispute with Castaway to ensure Castaway’s claims did not upset
the deal between DJB and NBC over Destination Mir. If the deal
failed, Britton would not receive a fee. And Castaway’s claims to
a greater share of the Survivor earnings would impact DJB, and
thus Cloudbreak and Britton. Britton’s fee was therefore
contingent on his successful performance of these services.
Because Britton provided legal services to Cloudbreak under the
Agreement, which provided for a contingent fee, the Agreement
was voidable at Cloudbreak’s option under section 6147,
subdivision (b), for failure to comply with subdivision (a).9
9 Because we reverse the judgment for Britton, we do not
reach Riggs and Cloudbreak’s contention the trial court erred in
denying their postjudgment motion for attorneys’ fees.
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DISPOSITION
We reverse the judgment. The trial court is ordered to
vacate its order granting Britton’s motion for summary
adjudication and to enter an order denying the motion. The trial
court is further ordered to vacate its order denying Riggs and
Cloudbreak’s motion for summary adjudication of Britton’s
breach of contract cause of action and to enter an order granting
the motion as to that cause of action. The matter is remanded for
further proceedings consistent with this opinion. Riggs and
Cloudbreak are entitled to recover their costs on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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