Zimmerman v. Fierstadt & Mans CA2/1 ( 2020 )

Filed 11/2/20 Zimmerman v. Fierstadt & Mans CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MICHAEL ZIMMERMAN et al., B298216
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC629535)
v.
FIERSTADT & MANS, LLP, et al.,
Defendants and Respondents.
FIERSTADT & MANS, LLP,
Cross-Complainant and
Appellant,
v.
MICHAEL ZIMMERMAN, et al.,
Cross-defendants and
Respondents,
APPEAL from an order of the Superior Court of
Los Angeles County, Robert S. Draper, Judge. Affirmed.
Ross Law and Robert S. Ross for Plaintiffs,
Cross-defendants, Appellants and Respondents Michael and
Donna Zimmerman.
Cole Pedroza, Joshua C. Traver and Scott M. Klausner
for Defendant, Cross-complainant, Appellant and Respondent
Fierstadt & Mans, LLP.
Nemecek & Cole, Frank W. Nemecek and Mark Schaeffer
for Defendants and Respondents Fierstadt & Mans, LLP,
Jack A. Fierstadt and David A. Mans.
____________________
Michael and Donna Zimmerman sued their former lawyers,
Fierstadt & Mans, LLP (F&M), Jack A. Fierstadt, and David
A. Mans (collectively, the Fierstadt defendants) for legal
malpractice. F&M cross-complained against the Zimmermans
for breach of contract. A jury returned a special verdict denying
any recovery for each side and the court entered judgment
accordingly. The Zimmermans appealed and F&M filed a cross-
appeal.
The Zimmermans contend that the court erred in denying
their request that the jury be given four special instructions and
in its answer to a question from the jury. They further argue
that the jury’s verdicts are inconsistent and require a new trial.
F&M argues that, if we reverse the judgment based on
inconsistent verdicts, we should remand for a new trial on both
the Zimmermans’ complaint and F&M’s cross-complaint.
We reject the Zimmermans’ contentions and affirm. F&M’s
cross-appeal is therefore moot.
2
FACTUAL SUMMARY AND PROCEDURAL HISTORY
A. The Burnett Action
Thirty-seven residential properties along Woodlyn Lane
(the road) in Bradbury are within a common interest
development and subject to certain covenants, conditions, and
restrictions (CC&Rs).
The document setting forth the original CC&Rs, drafted
in 1950, established a 30-foot-wide easement for the road (the
easement). The western portion of the easement is defined
by metes and bounds; the eastern portion is described as
“continuing” from a particular point “in a Southeasterly and
Easterly direction and following the course of the presently
travelled road.” The description is expressly “subject to the
actual existing course of the roadway on the ground as of June
15, 1950 and all deviation therefrom then in use.”
By the time the disputes underlying this case arose,
the exact location of the road as it was traveled in 1950 was
unknown; indeed, there was evidence that its location had been
altered by the Zimmermans’ predecessor and the City of
Los Angeles. The road’s current configuration, however, has been
in place since it was paved in 1957. The Zimmermans purchased
their property in 1988.
The CC&Rs also established the Woodlyn Lane
Improvement Association (the association), comprised of the
owners of the lots adjacent to the road. The CC&Rs give the
association the right to alter or remove existing improvements
in the road, including “fences” and “gates,” and the right “to
purchase, construct, improve, repair, maintain the [road] and any
and all improvements, fixtures and equipment installed thereon.”
The CC&Rs are enforceable by the association and any lot owner.
3
The prevailing party in any action to enforce the CC&Rs is
entitled to recover reasonable attorney fees and costs.
During the relevant time periods, access to the road was
restricted by gates at its west and east ends. The gate at the
west end is motorized and controlled by remote controls issued to
Woodlyn Lane residents. The east gate is not motorized; it is
locked by a padlock that must be manually disengaged to open
the gate. All Woodlyn Lane residents have a key to the padlock.
The road is 37 feet wide where it meets the east gate.
At the east end of the road, the Zimmermans own
the property on the south side of the road and Yosuf and Gale
Maiwandi own the property on the north side. The east gate is
located partially on the Zimmermans’ property and partially on
the Maiwandis’ property.
Donald and Joan Burnett are members of the association
who own lots near the west end of the road. In December 2008,
they sued the Zimmermans and the Maiwandis seeking, among
other relief, a declaration of the association’s rights with respect
to the east gate (the Burnett action). According to the Burnetts,
the association owns the easement and has exclusive authority
with respect to the road and the east gate; the Zimmermans
and Maiwandis asserted that the easement was unenforceable
and that they owned the east gate. The Burnetts also asserted
various tort causes of action.
In August 2011, the Zimmermans retained F&M to
represent them in the Burnett action.
Trial on the Burnetts’ claims was trifurcated. First, the
court would determine whether the Burnetts had standing to sue
on behalf of the association. If the Burnetts had standing, the
court would, in the second phase, determine the merits of the
4
Burnetts’ equitable and declaratory relief causes of action. Third,
if necessary, the Burnetts’ tort claims would be tried to a jury.
After a trial in the first phase, the court determined that
the Burnetts had standing to pursue their claims.
During the Fall of 2014, the Zimmermans were facing
financial difficulties and had fallen behind in paying F&M’s
invoices. Fierstadt and Donna Zimmerman agreed that the
Zimmermans would give F&M a promissory note for $150,000
secured by a deed of trust on certain vacation property.
According to Donna Zimmerman, Fierstadt agreed that the note
would “cover everything.”1 The Zimmermans executed the deed
of trust on October 11, 2014.
The second phase trial took place in October and
November 2014. The Zimmermans, through F&M, asserted:
(1) the easement was invalid because its imprecise description
rendered it unlocatable; (2) the Burnetts could not establish an
easement based upon prescription and other theories; (3) if there
once was an easement, the association had abandoned it; and
(4) the Zimmermans had extinguished any easement by adverse
possession.
On September 1, 2015, the court issued a statement of
decision on the second phase trial, determining that the Burnetts
were entitled to the declaratory relief they sought against the
Zimmermans. The court rejected the Zimmermans’ contention
1 F&M disputed whether they had agreed that the
$150,000 amount was a limit on their billings and pointed to an
email from Fierstadt to Donna Zimmerman on October 3, 2014,
regarding the note and deed of trust, and stating, “It should [be]
understood that the amount due will be subject to actual invoices
presented.”
5
that the easement was invalid because it could not be located
precisely. The court explained that, even if the current road
differed from the road traveled in 1950, “all the residents of
Woodlyn Lane, including the [Zimmermans], have impliedly
consented to, and acquiesced in, the substitution of the
current road for the ‘travelled road’ of 1950 for purposes of the
express easement in the CC&Rs.” The court also rejected the
Zimmermans’ easement abandonment and adverse possession
theories.
After the court’s ruling on the second phase, the Burnetts
dismissed their remaining tort claims.
On October 28, 2016, the court entered an amended
judgment declaring that “[t]he Association built, owns and
has the legal right of dominion and control” over the east gate.
The judgment also awards the Burnetts $1,242,217.05, as
attorney fees and costs, against the Zimmermans.
B. The Zimmermans’ Malpractice Action and
F&M’s Cross-complaint
In August 2016, the Zimmermans sued the Fierstadt
defendants for legal malpractice.2 The Zimmermans asserted
that the Fierstadt defendants were negligent by, among other
2 After the Zimmermans filed a notice of appeal from
the judgment in the Burnett action, the Zimmermans and
the Burnetts entered into an agreement pursuant to which
the Zimmermans agreed to dismiss the appeal and turn over
to the Burnetts any proceeds, net of their expenses, realized
from the malpractice lawsuit against the Fierstadt defendants;
the Burnetts agreed to forbear from collecting on the amended
judgment until the occurrence of an event specified in the
agreement.
6
things, failing to adequately research the applicable law and
asserting invalid and frivolous defenses to the Burnett action.
In particular, (1) the Fierstadt defendants asserted that the
Burnetts did not have standing to pursue their lawsuit despite
a provision in the CC&Rs and the law, and (2) the easement
was enforceable and there were no legal or factual grounds for
challenging it. According to the Zimmermans, the validity of
the easement was clear under California law based in part on
statements in a particular treatise: Miller & Starr, California
Real Estate (Miller & Starr).
F&M cross-complained for breach of contract to recover
$351,169.92 in unpaid fees.
In January 2019, the case was tried to a jury. The
Zimmermans contended that the Fierstadt defendants failed
to adequately research the applicable law and advise the
Zimmermans of alternatives available to them, including
settlement. The Fierstadt defendants asserted that they
complied with their duties of care to the Zimmermans and
that, given the personalities of the litigants and the nature
and complexity of the issues, the case could not have settled.
Regarding the standard of care the Fierstadt defendants
owed to the Zimmermans, the Zimmermans relied in part on
the testimony of James Jones, the Burnetts’ attorney in the
Burnett action. Jones testified that a lawyer must educate
himself or herself regarding the applicable law immediately upon
undertaking a matter for a client. He explained how an attorney
could research the applicable law regarding the easement issues
by consulting Miller & Starr.
The Fierstadt defendants introduced the testimony of an
expert who stated, generally, that the applicable “standard of
7
care is the care and skill that a reasonable practitioner would
bring to a case.” More particularly, the expert opined that it is
“a good idea to be able to explain to the client the various options
that are available,” and that the Fierstadt defendants met that
standard in representing the Zimmermans. The expert further
testified that “lawyers have a duty to educate themselves on the
law applicable to the case,” and that the Fierstadt defendants did
so in this case.
On January 31, 2019, the jury returned a special verdict.
On the Zimmermans’ malpractice cause of action, the jury found
the Fierstadt defendants were not negligent. On F&M’s breach of
contract cause of action, the jury found that F&M had performed
its contractual obligations, but was not entitled to recover
because one or more conditions to the Zimmermans’ duty to pay
did not occur. Based on these verdicts, the court entered a
judgment denying recovery to each side.
In April 2019, the Zimmermans filed motions for a new
trial and for judgment notwithstanding the verdict, and F&M
filed a motion for judgment notwithstanding the verdict on its
cross-complaint. On May 2, 2019, the court denied each of these
motions. F&M served notice of the ruling on May 8, 2019.
The Zimmermans timely appealed and F&M timely cross-
appealed.
8
DISCUSSION
A. The Zimmermans’ Special Jury Instructions
The Zimmermans requested, and the court refused, the
following four special jury instructions.
Special Instruction No. 1: “An attorney must educate
himself about the laws, statutes, and legal propositions that are
applicable to the claims and defenses in a lawsuit.”
Special Instruction No. 2: “An attorney may only present
claims, defenses, or legal contentions that are warranted by
existing law or warranted by a nonfrivolous argument for
the extension, modification, or reversal of existing law or the
establishment of new law.”
Special Instruction No. 3: “An attorney must only present
allegations or factual contentions that have evidentiary support
or that are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery.”
Special Instruction No. 4: “An attorney accepting a new
case must inform the client of alternative courses of action and
of the potential negative consequences of each course of action at
the earliest possible time.”
Instead, the court instructed the jury with CACI Nos. 600,
602, and 603.
CACI No. 600, as given, states: “An attorney is negligent
if he fails to use the skill and care that a reasonably careful
attorney would have used in similar circumstances. This level
of skill, knowledge, and care is sometimes referred to as ‘the
standard of care.’ [¶] You must determine the level of skill
and care that a reasonably careful attorney would use in similar
circumstances based only on the testimony of the expert
witnesses, including Jack A. Fierstadt, David A. Mans, Brandon
9
Carroll, Kevin Brogan, and James Jones, who have testified in
this case.”
CACI No. 602, as given, states: “An attorney is not
necessarily negligent just because his efforts are unsuccessful or
he makes an error that was reasonable under the circumstances.
An attorney is negligent only if he was not as skillful,
knowledgeable, or careful as another reasonable attorney would
have been in similar circumstances.”
CACI No. 603, as given, states: “An attorney is not
necessarily negligent just because he chooses one legal strategy,
makes a decision or makes a recommendation and it turns out
that another strategy, decision or recommendation would have
been a better choice.”
The Zimmermans contend that the court prejudicially erred
in denying the request for their special jury instructions. We
disagree.
“A party is entitled upon request to correct,
nonargumentative instructions on every theory of the case
advanced by him which is supported by substantial evidence.
The trial court may not force the litigant to rely on abstract
generalities, but must instruct in specific terms that relate
the party’s theory to the particular case.” (Soule v. General
Motors Corp. (1994) 8 Cal. 4th 548, 572.) But a court may
refuse a proposed instruction that is adequately covered
by or duplicative of other approved instructions (City of
Los Angeles v. Retlaw Enterprises, Inc. (1976) 16 Cal. 3d 473,
490; Caldera v. Department of Corrections & Rehabilitation
(2018) 25 Cal. App. 5th 31, 44 (Caldera)), or is “erroneous,
misleading, or otherwise improper.” (Orichian v. BMW of
North America, LLC (2014) 226 Cal. App. 4th 1322, 1333.)
10
We review the propriety of the jury instructions de novo.
(Caldera, supra, 25 Cal.App.5th at pp. 44–45.) “In considering
the accuracy or completeness of a jury instruction, we evaluate
it in the context of all of the court’s instructions.” (Id. at p. 45.)
If the court erred in refusing to give a proper instruction,
we will reverse only “ ‘where it seems probable’ that the error
‘prejudicially affected the verdict.’ ” (Soule v. General Motors
Corp., supra, 8 Cal.4th at p. 580.)
We agree with the Fierstadt defendants that the CACI
instructions the court gave adequately instructed the jury as to
the law of legal malpractice and that the Zimmermans’ proposed
special instructions were unnecessary and might have misled the
jury. In particular, the substance of each proposed instruction is
encompassed within the scope of CACI No. 600, which sets forth
the applicable standard of care: Attorneys must “use the skill
and care that a reasonably careful attorney would have used in
similar circumstances.” The Zimmermans’ proposed instructions
were an attempt to focus the jury’s attention on the particular
aspects of the Fierstadt defendants’ conduct that the
Zimmermans sought to emphasize in considering that standard
of care: attorneys must educate themselves about the applicable
law (special instruction No. 1); attorneys must present only
defenses and contentions that have legal and evidentiary support
(special instructions Nos. 2 and 3); and attorneys must inform
their clients of potential negative consequences of alternative
courses of action (special instruction No. 4). It is, however,
“error to give, and proper to refuse, instructions that unduly
overemphasize issues, theories or defenses either by repetition
or singling them out or making them unduly prominent although
the instruction may be a legal proposition.” (Fibreboard Paper
11
Products Corp. v. East Bay Union of Machinists (1964)
227 Cal. App. 2d 675, 718; see City of Los Angeles v. Retlaw
Enterprises, Inc., supra, 16 Cal.3d at p. 490 [court properly
refused to give instruction that “would have essentially
duplicated other instructions which the court did give to the
jury”].) Even if the court erred in failing to give the proposed
instructions, the Zimmermans have failed to establish the
requisite probability that the error prejudicially affected the
verdict. (See Soule v. General Motors Corp., supra, 8 Cal.4th
at p. 580.)
B. Court’s Response to Jury Question About
Miller & Starr
The Zimmermans contend that the court erroneously
responded to a question from the jury based upon misleading
information from counsel for the Fierstadt defendants. We reject
the argument.
During trial, the Zimmermans’ counsel questioned Jones
(Burnetts’ lawyer in the Burnett action). Counsel asked Jones
about the following point Jones asserted in a brief in the Burnett
action after the second phase trial: “ ‘Once an easement is
established, it is common for the parties to change [the] location
by mutual consent, and such consent may be implied from the
acts and acquiescence of the parties.’ ” The brief was admitted
into evidence in the malpractice case as exhibit 416. Counsel
pointed out that Jones supported this assertion with citations to
12
two cases and a quote from Miller & Starr, which Jones noted
“is a well-known real estate treatise on California law.”3
The Zimmermans’ counsel then asked Jones about the
role of Miller & Starr in legal research at his law firm and how
an attorney can find the quote he used from Miller & Starr in
exhibit 416:
“[Question:] In teaching those young lawyers, you have
them start with books like Miller & Starr; right?
“[Answer:] That is one way into the law, yes. You get a
treatise that is well respected and then you find citations there
and you look them up.
“[Question:] Miller & Starr; right?
“[Answer:] It is a multi, multi-volume set . . . .
“[Question:] Miller & Starr is actually a law firm in
Northern California; right?
“[Answer:] Yes, it is.
“[Question:] Real estate law firm?
“[Answer:] Yes.
“[Question:] Well-known one; right?
“[Answer:] They have been cited quite often by the
appellate court.
“[¶] . . . [¶]
3 The excerpt from Miller & Starr, as quoted in exhibit 416,
is the following: “ ‘Change of location by agreement. The
parties may agree to change the location of an easement, and
on an agreement, the same rights and duties that attached to
the original location apply to the easement at its new location.
[Citations.] . . . If the location is changed without an express
agreement, and there is no objection to the relocation, it may
be implied that the parties agreed to the change by their
acquiescence.’ ” (Boldface and fn. omitted.)
13
“[Question:] [The Miller & Starr volumes] have tables
of contents?
“[Answer:] They do.
“[Question:] [Y]ou can look up in the table of contents
about the creation of easements or the change of location of an
easement?
“[Answer:] Yes.
“[Question:] You can flip from the table of contents to
the portion of the book and find a summary of the law; right?
“[Answer:] Yes.
“[Question:] . . . You can read it and it will say something
like what you wrote here in your brief?
“[Answer:] That’s correct.
“[Question:] It will say, ‘the parties may agree to change
the location of an easement. And on agreement, the same rights
and duties that attach to the original location apply to the
easement in its new location.’ [¶] Right?
“[Answer:] Yes.
“[Question:] ‘If the location has changed without an
express easement, there is no objection to the relocation of the
implied, the parties agree to the change by acquiescence.’
“[Answer:] Yes.”
Brandon Carroll, an attorney with F&M who worked on
the Burnett action, testified that he had access to Miller & Starr
during the relevant time period. When asked whether he
had looked at “what Miller & Starr said about the grant of
unlocated easement being enforceable,” Carroll testified that
he “probably came across it at some point,” but did not have a
specific recollection of doing so. Nor did he recall ever informing
Fierstadt or Mans of Miller & Starr’s statements on the issue.
14
The Zimmermans’ counsel did not question Fierstadt or Mans
as to whether they consulted Miller & Starr in conducting any
research in the case.
In closing argument in the malpractice case, the
Zimmermans’ counsel pointed to F&M’s apparent failure to
consult the Miller & Starr treatise as evidence of its negligence.
Counsel argued that F&M had access to Miller & Starr and
“could have opened it up, looked at the table of contents on the
section on easements and flipped to the section that deals with
creation and movement of an easement. Would have taken about
15 minutes maybe.” He further argued that it was not until
January 2015, three months after the second phase trial, that
F&M found an important case that was detrimental to the
Zimmermans’ position and which was “right in Miller & Starr.”
Counsel repeated the point in his rebuttal argument.
During deliberations, the jury requested “[c]larification
of Miller & Star[r] use as evidence or argument [sic].” The court
and counsel discussed the request. When a question was raised
about Jones’s trial testimony regarding Miller & Starr, the court
asked counsel if a transcript was available. Counsel for F&M
read a portion of Jones’s trial testimony concerning the use of
Miller & Starr as a starting point for research and the frequency
with which it is cited by Courts of Appeal, but stopped reading
before reaching the part where Jones testifies as to how one can
use the table of contents in the treatise to get to the substantive
points he used in his brief for the Burnetts. Nevertheless, F&M’s
counsel told the court: “There’s no other references [to Miller &
Starr] that I see.”
The Zimmermans’ counsel recalled that “there’s more,”
and that he had examined witnesses “with regard to that excerpt
15
straight out of Miller & Starr. That is quoted out of Miller &
Starr.” Counsel did not, however, offer to locate or read any
additional testimony.
After further discussion, the court proposed to respond to
the jury’s question as follows: “You have asked whether Miller
& Starr is in evidence. It is not. An expert may be examined or
cross-examined relating to various statements in Miller & Starr
and the testimony is in evidence, but that does not make the
statements themselves evidence.”
The Zimmermans’ counsel expressed concern that
the jurors would interpret the court’s proposed response
as instructing them: “[D]on’t consider Miller & Starr.” He
requested that the response specify that “the book Miller
& Starr is not in evidence,” but that testimony about Miller
& Starr and documents containing excerpts from Miller & Starr
are in evidence. The court rejected this proposal and ultimately
responded to the jury’s question as it had proposed.
On appeal, the Zimmermans argue that F&M’s counsel’s
omissions in her readback to the court of testimony concerning
Miller & Starr was misleading. As the Fierstadt defendants
assert, however, the Zimmermans’ counsel could have corrected
that omission at the time but failed to do so. Indeed, the
Zimmermans’ counsel recalled that “there’s more,” and that
“multiple witnesses” were examined regarding exhibit 416, where
Miller & Starr was quoted. The Zimmermans’ counsel, however,
did not request that additional portions be read.
Even if the attorney’s readback of testimony was
misleading by omission, the omission does not appear to have
had any effect on the court’s formulation of its response to the
jury’s question. The court acknowledged that the Zimmermans’
16
counsel had examined Jones with respect to exhibit 416 and the
substantive statements within Miller & Starr. The omission in
the readback, therefore, was not prejudicial.
The Zimmermans next contend that the court’s response
was substantively erroneous because once exhibit 416 and
Jones’s testimony regarding the Miller & Starr statements were
admitted into evidence, the statements in the treatise were
“admitted as evidence for the jury to use for any purpose.” We
disagree. Statements admitted into evidence may not necessarily
be considered by the jury for all purposes. For example, an out
of court statement that is inadmissible hearsay if offered to prove
the truth of the matter stated may nevertheless be admitted
into evidence and considered by the jury for a non-hearsay
purpose. (1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 5,
pp. 788–789.) The admission of such a statement cannot then
be used “for any purpose,” as the Zimmermans assert, because it
cannot be used to prove the matter stated.
That is the situation here. The Miller & Starr statements
are out of court statements by the authors of the treatise and
may not be introduced to prove the truth of the matter stated in
the quoted material. Indeed, because the determination of legal
issues is within the exclusive province of the court, the jury could
not consider the subject statements in Miller & Starr for the
purpose of determining that the law is as Miller & Starr asserts
it to be. (4 Mallen, Legal Malpractice (2020) § 37:101, p. 1807
[“[i]ssues of law do not become issues of fact for the jury in a legal
malpractice action”].) They could be used, however, as they were
used here: to show that such statements are within Miller &
Starr and could have been discovered by attorneys conducting
research in accordance with their standard of care.
17
In this light, the trial court’s response to the jurors is
not erroneous. Although the court did not precisely quote the
hearsay rule in responding to the lay jurors, its instruction that
testimony relating to statements in Miller & Starr is in evidence,
but Miller & Starr itself and statements within that treatise
are not in evidence effectively communicated how the jurors
could properly consider the evidence: As proof that competent
attorneys would have discovered the statements within Miller
& Starr, but not as proof that Miller & Starr’s statements are
true or that they correctly state the law.
The fact that F&M did not object to the introduction of
exhibit 416 or Jones’s testimony regarding the Miller & Starr
statements does not alter our conclusion. Because the evidence
was admissible for a non-hearsay purpose, any objection would
have been overruled. Although F&M could have requested an
admonition that the jury not use Miller & Starr’s statements as
evidence of the truth of the statements, there was no reason for
such an admonition: It is apparent from the context in which the
Miller & Starr statements were discussed during trial that they
were offered solely to show that reasonable attorneys would
have consulted the “well respected” treatise, used the treatise’s
“table of contents” to “flip” to the chapter on easements, and
located the particular statements within Miller & Starr that
would have alerted them to a legal issue and the need for
further investigation. This purpose is also emphasized in the
Zimmermans’ closing argument, in which counsel argued that
F&M attorneys had access to Miller & Starr and could have
found the pertinent law within “about 15 minutes.” Because the
Zimmermans used the statements in this way—not to prove the
18
truth of the statements—any hearsay admonition was
unnecessary.
Even if the court’s response to the jury’s question was
erroneous, the Zimmermans have failed to establish that the
error was prejudicial. They assert that “the Miller & Starr
evidence was [their] best and strongest evidence to prove [the
Fierstadt defendants’] negligence” and that, by telling the jurors
that “Miller & Starr was not in evidence, the [c]ourt essentially
told the jury that the Zimmermans best evidence was not
evidence.” (Capitalization omitted and italics added.) The
assertion, however, is not borne out by the record. Indeed, as
explained above, the Zimmermans relied little, if at all, on the
statements within Miller & Starr for the truth of the statements;
the Miller & Starr excerpts were referred to in testimony and
argument primarily, if not exclusively, to show how lawyers
conducting research in accord with their standard of care could
find the statements—not to establish the truth of the statements.
The Zimmermans also assert that the instruction was
prejudicial because they decided not to call a retained expert on
an attorney’s standard of care because they “had relied on the
evidence entered through . . . Jones.” The argument implies that
they would have called their retained expert if they had known
that the court was going to inform the jury that Miller & Starr’s
statements are not in evidence. They do not explain, however,
what the expert could have said to fill the gap left by the court’s
instruction. To the extent the argument suggests that the expert
would have opined on the truth of Miller & Starr’s statements or
similar legal propositions, the testimony would be excludable as
impermissible expert opinion on the law. (See Sheldon Appel Co.
v. Albert & Oliker (1989) 47 Cal. 3d 863, 884 [“ ‘experts may not
19
give opinions on matters which are essentially within the
province of the court to decide’ ”]; 4 Mallen, supra, § 37:132,
p. 1905 [“In a legal malpractice action, expert testimony on issues
of law should be precluded.”].) The Zimmermans have therefore
failed to establish that any error in the court’s response to the
jury’s question was prejudicial.
C. Consistency of the Verdicts
The Zimmermans contend that the special verdicts are
inconsistent and require a new trial. We reject the contention.
“Inconsistent verdicts are ‘ “against the law,” ’ and
the proper remedy is a new trial.” (Shaw v. Hughes Aircraft
Co. (2000) 83 Cal. App. 4th 1336, 1344.) “A special verdict is
inconsistent if there is no possibility of reconciling its findings
with each other.” (Singh v. Southland Stone, U.S.A., Inc. (2010)
186 Cal. App. 4th 338, 357.) We review de novo whether special
verdict findings are inconsistent. (Id. at p. 358.)
Question No. 1 of the special verdict, pertaining to
the Zimmermans’ malpractice claim, asked: “Were any of the
defendants negligent?” The jury answered, “No,” as to each
defendant. Based on that answer, the jury did not answer any
further questions regarding the Zimmermans’ malpractice claim.
Regarding F&M’s breach of contract claim, the jury,
in responding to questions Nos. 7 and 8, found that F&M
entered into a contract with the Zimmermans and that F&M
did “all, or substantially all, of the significant things that the
contract required it to do.” Question No. 9 asked: “Did all of
the conditions that were required for the performance of Michael
Zimmerman and Donna Zimmerman under the contract occur?”
The jury answered, “No.” Based on that answer, the jury did not
20
answer any further questions regarding the breach of contract
claim.
The Zimmermans contend that the jury’s finding under
question No. 1, that none of the defendants was negligent,
is inconsistent with its finding on question No. 9, that one or
more conditions to the Zimmermans’ duty to perform—that is,
to pay F&M’s legal bills—did not occur. The Zimmermans assert
that these answers are inconsistent because the only possible
condition implied in question No. 9 is the condition that F&M
competently performed its services. Because that condition did
not occur, the Zimmermans argue, F&M was negligent. This
implied negligence finding, they conclude, is inconsistent with the
jury’s finding under question No. 1 that F&M was not negligent.
The Zimmermans’ argument is based on conjecture. F&M’s
professional competence is not the only possible condition to the
Zimmermans’ duty to pay F&M’s legal bills. The jury may have
reasonably concluded, as it did, that F&M had performed under
its contract with the Zimmermans without being negligent, but
that the Zimmermans had paid F&M all it was due. As the trial
court explained, the jury may have accepted the Zimmermans’
assertion “that the underlying case was a simple case and [F&M]
should not have ‘run its bills up.’ ” Thus, “the jury could have
found for [the Zimmermans] on this issue and therefore answered
question number 9 as they did despite their finding that [F&M]
was not negligent in its representation.” The jury may also have
accepted Donna Zimmerman’s testimony that F&M had agreed
that the note and deed of trust the Zimmermans gave to F&M
in October 2014 would “cover everything.” Because it is possible
to reconcile the jury’s findings in these ways, they are not
21
necessarily inconsistent. We therefore reject the Zimmermans’
argument.
D. F&M’s Cross-appeal
F&M argues that, if we conclude that the jury verdicts are
inconsistent, then we must reverse the judgment as to its cross-
complaint and direct the court to order a new trial. Because we
conclude that the jury verdicts are not inconsistent, F&M’s
appeal is moot.
DISPOSITION
The judgment is affirmed. The parties shall bear their own
costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
22