Stapke & Harris v. Raskov CA2/7

Filed 5/12/15 Stapke & Harris v. Raskov CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN
STAPKE & HARRIS, LLP, B252176
Cross-complainant and Respondent, (Los Angeles County
Super. Ct. No. BC433843)
v.
ORDER MODIFYING OPINION
DANIEL RASKOV, AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Cross-defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein April 21, 2015 be modified as follows:
1. On page 2 in the third full paragraph beginning with “Raskov and Aronson paid
Stapke & Harris $91,000,” the term “$91,000” is changed to “just under $93,500” so that
the sentence reads:
Raskov and Aronson paid Stapke & Harris just under $93,500, constituting the
firm’s pro-rated share of the attorney fees awarded by the probate court; they
paid the remaining $29,000 to Stapke & Harris’s predecessor counsel in the
probate action and terminated Stapke & Harris’s employment with respect to
the probate action.
2. On page 2, in the beginning of the second sentence under section 2, insert the
dependent clause, “According to the complaint seeking a trial de novo,” which will also
require changing “In December” to “in December” so that the sentence now reads:
According to the complaint seeking a trial de novo, in December 2006,
pursuant to the terms of the retainer agreement, Stapke & Harris filed a
nonbinding fee arbitration claim with the Los Angeles County Bar Association
in accordance with the Mandatory Fee Arbitration Act (MFAA) (Bus & Prof.
Code, § 6200 et seq.).
3. On page 6, in footnote 1, replace “January 31” with “March 10” so that
footnote 1 now reads:
On March 10, 2014 the court awarded Stapke & Harris costs and attorney fees
in connection with its prosecution of the cross-complaint. That order is the
subject of a separate appeal.
There is no change in the judgment. Daniel Raskov’s petition for rehearing is
denied.
_____________________________________________________________________
PERLUSS, P. J. ZELON, J. IWASAKI, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
2
Filed 4/21/15 Stapke & Harris v. Raskov CA2/7 (unmodified version)
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 SEVEN
STAPKE & HARRIS, LLP, B252176
Cross-complainant and Respondent, (Los Angeles County
Super. Ct. No. BC433843)
v.
DANIEL RASKOV,
Cross-defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Steven J.
Kleifield, Judge. Affirmed.
Daniel Raskov, in pro. per., for Cross-defendant and Appellant.
Sandra J. Gamboa for Cross-complainant and Respondent.
_____________
Daniel Raskov appeals from the judgment entered after a jury found him liable to
his former lawyers, Stapke & Harris, LLP, on the firm’s cross-complaint for unpaid legal
fees. Raskov contends Stapke & Harris lacked standing to prosecute its action. He also
contends the court erred in prohibiting expert testimony and refusing to instruct the jury
about legal malpractice. In addition, he insists the evidence is insufficient to support the
jury’s damage award and the court erred in awarding Stapke & Harris prejudgment
interest. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Probate Matter
In July 2005 Raskov and his sister, Michele Aronson, the primary beneficiaries of
their deceased father’s irrevocable trust, retained Stapke & Harris on an hourly basis to
represent both of them in a probate action scheduled to go to trial the following month.
In their probate petition Raskov and Aronson alleged the trustee, their stepmother, had
wrongfully sold real property belonging to the trust (the 54th Street property) and had
deposited the proceeds in her own account. They sought removal of the trustee for
breach of fiduciary duty and an accounting. The trustee vigorously opposed the petition,
arguing the 54th Street property had belonged to her personally, not the trust.
The trial was continued twice: once at Stapke & Harris’s request and once at the
trustee’s request. On August 24, 2006, after a trial on the petition, the probate court
removed the stepmother as trustee and ordered her to return to the trust the proceeds from
her sale of trust property. On October 2, 2006 the court awarded Raskov and Aronson
$120,000 in attorney fees and costs (less than they had requested) to be paid by the trust.
Raskov and Aronson paid Stapke & Harris $91,000, constituting the firm’s pro-rated
share of the attorney fees awarded by the probate court; they paid the remaining $29,000
to Stapke & Harris’s predecessor counsel in the probate action and terminated Stapke &
Harris’s employment with respect to the probate action.
2. The Nonbinding Arbitration for Attorney Fees
In November 2006 a dispute arose over the additional fees Stapke & Harris
claimed were due under the written retainer agreement with Raskov and Aronson. In
4
December 2006, pursuant to the terms of the retainer agreement, Stapke & Harris filed a
nonbinding fee arbitration claim with the Los Angeles County Bar Association in
accordance with the Mandatory Fee Arbitration Act (MFAA) (Bus. & Prof. Code, § 6200
et seq.). The firm demanded an additional $48,357.89 in attorney fees and costs plus
$20,495.55 in prejudgment interest in connection with work it had performed in the
probate matter. Raskov and Aronson objected to the amount sought, insisting the probate
court’s order was res judicata as to the amount of necessary and reasonable attorney fees
incurred. They also argued Stapke & Harris had committed professional malpractice in
the probate action by failing to ensure an appraiser would be available to testify to the fair
market value of the 54th Street property, an omission that prevented them from
demonstrating the trust property had been sold for a price substantially below market
value. This malpractice, they claimed, had caused them damage far exceeding what they
might otherwise owe the firm. Finally, they asserted Stapke & Harris had egregiously
overbilled for its efforts and charged them for work not actually performed and for costs
not actually incurred.
After several delays the matter finally proceeded before a three-member
arbitration panel in June and July 2009. During arbitration, Stapke & Harris adjusted its
demand to $43,013.87. In February 2010 the arbitration panel issued a written decision
concluding the probate court’s order did not prelude Stapke & Harris from recovering
additional fees pursuant to the parties’ retainer agreement. The arbitrators awarded
Stapke & Harris and Mark Stapke, the law firm’s principal, $39,285.07 in unpaid fees
plus $6,731.12 in interest from September 3, 2005 to November 16, 2006 for a total
amount of $46,016.19, as well as additional interest to be calculated as of November 16,
2006 at the rate of 10 percent.
3. Aronson’s Request for a Trial de Novo and Stapke & Harris’s Cross-complaint
Against Aronson and Raskov for Fees
On March 16, 2010 Aronson filed this action against Stapke & Harris in Los
Angeles County Superior Court seeking a judicial declaration that the Riverside County
Superior Court, the court in the underlying probate matter, had exclusive jurisdiction over
5
the fee dispute. Alternatively, in the event the Los Angeles County Bar Association’s
arbitration panel had authority to consider Stapke & Harris’s fee claim under the MFAA,
Aronson requested a trial de novo of the arbitration award pursuant to Business and
Professions Code section 6204.
Stapke & Harris answered the complaint and filed a cross-complaint against
Aronson and Raskov asserting claims for breach of contract, quantum meruit and
common counts for open book and account stated. Raskov and Aronson answered the
cross-complaint and asserted as an affirmative defense, among others, that any claim for
fees was offset by the greater damage caused by Stapke & Harris’s legal malpractice
during the probate proceedings when it failed to present evidence of the fair market value
of the 54th Street property at the time the trustee had sold it.
4. Stapke & Harris’s Oral Motion in Limine To Exclude Expert Testimony on
Legal Malpractice
Prior to trial Aronson and Raskov designated Jeffrey Schoenherr, a probate
attorney, to testify “regarding the real property appraisals, valuations and attorney fees in
the probate matter[].” The expert declaration did not identify standard of care or legal
malpractice as topics on which Schoenherr was expected to opine. However, at his
deposition Schoenherr testified he believed he had been designated an expert to, among
other things, “opine as to whether or not failure to bring a certified appraisal to [the
underlying probate trial] might be negligence per se.” Schoenherr testified at his
deposition, “I was not able to really conclude that it is negligence per se. But I believe it
is below a standard of care that if you want to prove the value of real property and it’s an
important element of the case, you need to bring a certified appraisal.” Schoenherr also
explained he could not comment specifically on whether Stapke & Harris had been
negligent in the probate proceeding because “I don’t have enough facts to state that what
[Mark Stapke]—the way he acted was negligence. Because I don’t know what he did or
didn’t do.” He also confirmed there were no additional opinions he expected to give in
the matter.
6
After Stapke & Harris’s counsel had concluded his questions at the deposition,
counsel for Raskov and Aronson asked Schoenherr to assume the following facts:
(1) The parties had known the date of trial for five months; (2) the value of real property
was at issue in the probate action; and (3) the attorney for the party prosecuting the action
had obtained an appraisal of the property at issue. Based on this hypothetical set of facts,
Raskov’s counsel asked Schoenherr to opine on whether it would fall below the standard
of care for the probate attorney to look at the appraisal for the first time seven days before
trial. Schoenherr testified in his opinion it would. He also stated it is generally a simple
matter, even on short notice, to retain an appraiser to testify at a trial in probate court.
At the beginning of trial Stapke & Harris orally moved, over Aronson and
Raskov’s objection, to limit Schoenherr’s testimony to the matters identified in his expert
witness declaration and exclude any opinion whether Stapke & Harris’s conduct during
the probate proceeding was below the standard of care. The court granted the motion on
the ground standard of care was outside the scope of Schoenherr’s expert declaration,
there had been no attempt to amend the declaration, and no agreement had been made to
expand the scope of Schoenherr’s expert opinion testimony.
5. The Jury Trial on Stapke & Harris’s Cross-complaint
The only claims tried to the jury were Stapke & Harris’s causes of action for its
attorney fees. Both sides provided expert testimony on the value of services provided
and the propriety of the invoices submitted by Stapke & Harris. As to the appraisal issue,
Mark Stapke testified Raskov and Aronson’s predecessor counsel had designated
certified appraiser, Mike Chambers, to testify at the probate trial, originally scheduled for
August 2005. Stapke spoke to Chambers in July 2005 and believed he would be a good
expert witness. Ten days before the newly-scheduled trial date, Stapke & Harris
attempted unsuccessfully to locate Chambers to prepare him for trial but could not find
him, and Chambers had left no forwarding information. According to Stapke, Chambers
had “disappeared.” In light of this development, he recommended to Aronson and
Raskov, both orally and in writing, that a new appraiser be obtained for trial. He
explained this would likely result in a continuance of the trial to permit opposing counsel
7
the opportunity to depose the new expert, but it was necessary in order to protect any
claim they might have to restitution for the below-market sale. Raskov and Aronson,
however, rejected his advice and insisted the trial go forward without an appraiser
because they believed the expeditious removal of their stepmother as trustee was more
important.
Raskov testified he did not remember Stapke & Harris telling him they could
obtain a continuance, but it did not matter in any event because the court had signaled in
an earlier proceeding that the matter was going to trial and further continuances would
not be forthcoming. He told the jury Stapke & Harris did not look at Chambers’s
appraisal until 10 days before trial and realized it was deficient—it had not been signed
and there were other errors—and would not be admissible. He and his sister had tried to
find an appraiser on short notice but were unsuccessful. He believed Stapke & Harris’s
conduct had cost him and his sister $75,000.
Schoenherr testified it would have been a relatively simple matter to find an
appraiser to testify at trial, even on short notice.
The jury returned a special verdict in favor of Stapke & Harris and awarded the
firm $39,523.87 in fees. The trial court rejected Raskov and Aronson’s request to
instruct the jury on the elements of legal malpractice because there had been no evidence
on the standard of care during the trial; the special verdict form submitted to the jury did
not invite the jury to decide whether any offset for legal malpractice was available. On
August 26, 2013 the trial court awarded Stapke & Harris prejudgment interest in the
amount of $32,341.17 and entered judgment in favor of the law firm for $71,865.04.1
6. Raskov’s Posttrial Motions and Discovery of Stapke & Harris’s Assignment of
Its Assets During the Pendency of the Arbitration Proceeding
On September 5, 2013 Raskov filed a combined notice of motion for judgment
notwithstanding the verdict and notice of intent to move for new trial. In his supporting
1
On January 31, 2014 the court awarded Stapke & Harris costs and attorney fees in
connection with its prosecution of the cross-complaint. That order is the subject of a
separate appeal.
8
papers, he primarily argued the court erred in limiting Schoenherr’s testimony and
refusing to instruct the jury about legal malpractice. On September 23, 2013, while those
posttrial motions were pending, third party THC, Inc. filed a document entitled
“Acknowledgment of Assignment of Judgment” advising the court: THC had become a
secured third party creditor of Stapke & Harris in 2001 when it loaned the firm $150,000.
The document also stated Stapke & Harris defaulted on its loan obligations to THC in
December 2006. On January 19, 2007, pursuant to its security agreement with THC,
Stapke & Harris assigned to THC “all . . . assets, accounts receivable, deposit accounts,
credit card accounts, merchant accounts, judgment liens, real property, furniture, personal
belongings . . . and any other property . . . now owned or hereafter acquired . . . .”
THC’s filing with the court included copies of the promissory note, security agreement
and assignment. THC’s filing also stated Stapke & Harris’s cross-complaint had been
prosecuted on its behalf “as allowed pursuant to Code of Civil Procedure section 368.5.”
In his reply in support of his posttrial motions, Raskov argued for the first time
that THC, not Stapke & Harris, was the real party in interest in this fee action and urged
the court to dismiss Stapke & Harris’s cross-complaint for lack of standing. As to the
delay in requesting dismissal, Raskov claimed he did not know of the assignment until
THC’s filing of its acknowledgment, a fact strongly disputed by Stapke & Harris. After
an extensive hearing, the court denied Raskov’s motions.
DISCUSSION
1. Stapke & Harris Had Standing To Prosecute Its Action on Behalf of Its
Assignee THC
“Every action must be prosecuted in the name of the real party in interest, except
as otherwise provided by statute.” (Code Civ. Proc., § 367; see Dino v. Pelayo (2006)
145 Cal. App. 4th 347, 353, fn. 2.) “‘Real party in interest’ has been generally defined as
“any person or entity whose interest will be directly affected by the proceeding . . . .”’”
(Connerly v. State Personnel Bd. (2006) 37 Cal. 4th 1169, 1178; accord, Martin v.
Bridgeport Community Assn., Inc. (2009) 173 Cal. App. 4th 1024, 1031-1032 [“real party
9
in interest is one who has ‘an actual and substantial interest in the subject matter of the
action and who would be benefited or injured by the judgment in the action’”].)
Subject to limited exceptions not pertinent here, the real party in interest may
transfer his or her right in a cause of action to a third party. (See Civ. Code, § 954 [a
cause of action “arising out of the violation of a right of property, or out of an obligation,
may be transferred by the owner”]; Essex Ins. Co v. Five Star Dye House, Inc. (2006) 38
Cal. 4th 1252, 1259 [recognizing assignability of cause of action arising out of an
obligation under contract].) When this occurs, the assignee becomes the real party in
interest, standing in the “‘shoes of his assignor [and] taking his rights and
remedies . . . .’” (Essex, at p. 1264; see ibid. [“[a]s the assignee of Sanchez’s claim
against Essex, Five Star stands in his shoes, and so may assert his right to recover any
Brandt fees incurred in prosecuting the assigned claim”]; Great Western Bank v. Kong
(2001) 90 Cal. App. 4th 28, 31-32.) Typically, once the assignment of the chose in action
occurs and the assignee becomes the real party in interest, the assignor no longer has
standing to prosecute the claim. (Searles Valley Minerals Operations Inc. v. Ralph M.
Parson Service Co. (2011) 191 Cal. App. 4th 1394, 1402; Johnson v. County of Fresno
(2003) 111 Cal. App. 4th 1087, 1096.)
Raskov2 contends Stapke & Harris lost standing to recover its fees when it
assigned all its assets, including this chose in action, to THC in January 2007.3 For its
part, Stapke & Harris does not dispute that the right to prosecute its claim against Raskov
for fees incurred in the probate matter is encompassed by the assignment of its assets to
2
Aronson settled the action and is not a party to this appeal.
3
Although Raskov raised this issue for the first time in his reply brief in support of
his posttrial motions, questions of standing “involve jurisdictional challenges and may be
raised at any time in the proceeding,” including for the first time in posttrial motions or
on appeal. (Common Cause v. Board of Supervisors (1989) 49 Cal. 3d 432, 438; accord,
McKinny v. Board of Trustees (1982) 31 Cal. 3d 79, 90; see generally People v. American
Contractors Indemnity Co. (2004) 33 Cal. 4th 653, 661 [when court has fundamental
jurisdiction, that is, personal and subject matter jurisdiction, but otherwise acts in excess
of its jurisdiction, judgment is voidable and may be attacked at any time in the
proceeding before judgment becomes final].)
10
THC. Rather, it contends it was legislatively authorized to initiate the cross-complaint on
THC’s behalf under Code of Civil Procedure section 368.5 (section 368.5). As we
explain below, section 368.5 does not assist Stapke & Harris. Nevertheless, THC’s
consent to Stapke & Harris’s prosecution of the action on its behalf defeats Raskov’s
standing argument.
a. Section 368.5 does not apply
Section 368.5 permits a former real party in interest to continue to prosecute an
action or proceeding that was pending at the time the interest was transferred: “An action
or proceeding does not abate by the transfer of an interest in the action or proceeding or
by any other transfer of an interest. The action or proceeding may be continued in the
name of the original party, or the court may allow the person to whom the transfer is
made to be substituted in the action or proceeding.” (See Arabia v. BAC Home Loans
Servicing, L.P. (2012) 208 Cal. App. 4th 462, 472-473.)
At the time of the assignment in 2007, there was a pending proceeding—the fee
arbitration. Pursuant to section 368.5 Stapke & Harris could continue prosecuting its fee
claim to completion in the arbitration proceeding notwithstanding its transfer of that right
to THC, Inc. However, once the arbitration concluded in 2010, there was no longer a
pending proceeding, nor was there a pending action.4 Although the fee dispute continued
to be litigated in the trial de novo at Aronson’s request, a trial de novo under the MFAA
is a new and separate action, not a “continuation” of the arbitration proceeding. (See
Bus. & Prof. Code, § 6204, subd. (c) [“the trial after arbitration shall be initiated by the
commencement of an action in the court having jurisdiction . . . [and] shall proceed in
accordance with the provisions of Part 2 . . . of the Code of Civil Procedure, concerning
civil actions generally”]; see generally Maynard v. Brandon (2005) 36 Cal. 4th 364, 373.
Thus, Stapke & Harris’s reliance on section 368.5 alone to support its standing in this
action is misplaced.
4
Code of Civil Procedure section 22 defines an “action” as “an ordinary proceeding
in a court of justice by which one party prosecutes another for the declaration,
enforcement, or protection of a right.”
11
b. Although section 368.5 does not apply, THC’s consent to Stapke &
Harris’s prosecution of this action on its behalf defeats Raskov’s
standing argument
The purpose of requiring a cause of action to be prosecuted by the real party in
interest is to protect the defendant “against whom a judgment may be obtained, from
further harassment or vexation at the hands of other claimants to the same demand.”
(Giselman v. Starr (1895) 106 Cal. 651, 657; accord, Anheuser-Busch, Inc. v. Starley
(1946) 28 Cal. 2d 347, 351-352; Greco v. Oregon Mutual Fire Ins. Co. (1961)
191 Cal. App. 2d 674, 687 (Greco).) That concern is not present when “a judgment for or
against the nominal plaintiff would protect [the defendant] from any action upon the
same demand by another, and when, as against the nominal plaintiff, [the defendant] may
assert all defenses and counterclaims available to him were the claim prosecuted by the
real owner.” (Philbrook v. Superior Court (1896) 111 Cal. 31, 34-35; accord, Giselman,
at p. 651; Anheuser-Busch, at p. 352 [“‘[w]here as against the party suing, defendant can
urge any defenses he could make against the real owner, then there is an end of the
defendant’s concern and with it of his right to object; for so far as he is interested, the
action is being prosecuted in the name of the real party in interest’”].) For this reason, it
is well settled that, when “an assignee [of a chose in action] consents that the suit be
brought by his assignor, an objection that the plaintiff is not the real party in interest will
not be ground for reversal because the defendant is fully protected from future action, and
the purpose of any objection to the suit upon that ground has been served.” (Greco, at
p. 687; accord, Giselman, at p. 658; Philbrook, at pp. 34-35; Mosier v. Suburban Estates,
Inc. (1934) 137 Cal. App. 574, 576; Reidy v. Young (1931) 119 Cal. App. 322, 324.)
Here, THC’s consent to Stapke & Harris’s prosecution of this action is evident in
both the language of the security agreement and the assignment. (See City of Hope
National Medical Center v. Genentech, Inc. (2008) 43 Cal. 4th 375, 395 [absent
conflicting extrinsic evidence, interpretation of contract or written instrument is question
of law]; Wolf v. Walt Disney Pictures & Television (2008) 162 Cal. App. 4th 1107, 1126.
[same].) The security agreement required Stapke & Harris, “at its own expense, to keep
12
the Collateral in good standing” including “defend[ing] at its expense any proceeding
which may affect title to or Creditor’s security interest in any Collateral.” The security
agreement thus authorized Stapke & Harris’s defense of claims by Aronson and Raskov
as well as its efforts to collect fees owed. Significantly, nothing in Stapke & Harris’s
assignment of its assets expressly superseded the security agreement or otherwise vitiated
the firm’s obligation to protect THC’s interest in the firm’s assets. In fact, the
assignment, undertaken “pursuant to the Secured Promissory Note and Security
Agreement,” included in its purview all assets “now owned or hereafter acquired,”
making clear it contemplated that additional assets would be pursued and/or obtained by
Stapke & Harris after the assignment was executed. Moreover, in its own posttrial filing
in this case, THC acknowledged that Stapke & Harris had prosecuted this action on
THC’s behalf, an acknowledgment that both reinforces our interpretation and relieves
Raskov from any risk of a future claim against him by THC to the fees at issue. Raskov
has not alleged an inability to assert a defense against Stapke & Harris that he could
otherwise assert against THC. (See Giselman v. Starr, supra, 106 Cal. at p. 658 [“[i]f,
under such circumstances, the defendant claims another to be the real owner, he must
support his right to make that claim by showing that he has some equity or defense
against the real owner which he cannot maintain against the prima facie legal owner”].)
Accordingly, as far as Raskov is concerned, THC’s status as the party with legal title to
the chose in action is not grounds for reversal. (Greco, supra, 191 Cal.App.2d at
p. 687.)5
2. The Trial Court Did Not Abuse Its Discretion in Prohibiting Raskov’s Expert
from Opining at Trial on Stapke & Harris’s Legal Malpractice
Any party may demand the mutual and simultaneous exchange of expert witness
information. (Code Civ. Proc., § 2034.210, subd. (a).) Such an exchange must include
an expert witness declaration signed by the attorney for the party designating the expert
5
In light of our holding that THC consented to Stapke & Harris’s prosecution of the
claim for fees on its behalf, we need not reach Raskov’s other challenges to Stapke &
Harris’s standing, all of which are premised on Stapke & Harris’s own status if it were
deemed the legal owner of the chose in action.
13
and provide, among other things, “[a] brief narrative statement of the general substance
of the testimony the expert is expected to give.” (Code Civ. Proc., § 2034.260,
subd. (c)(2); see Bonds v. Roy (1999) 20 Cal. 4th 140, 148.) If a party wishes to expand
the scope of an expert’s testimony beyond those topics identified in the declaration, it
must successfully move for leave to amend its expert witness declaration. (Code Civ.
Proc., § 2034.610, subd. (a)(2); see Bonds, at p. 145.) Otherwise, expert opinion offered
by any party who has “unreasonably failed” to comply with these requirements “shall be
excluded.” (Code Civ. Proc., § 2034.300; see Bonds, at pp. 146-147.)
The Supreme Court explained the purpose of the expert declaration requirements
in Bonds v. Roy, supra, 20 Cal. 4th 140. There, the defendant in a medical malpractice
case submitted a declaration stating the expert would testify to damages and then sought
at trial to expand the expert’s opinion to include standard of care. In upholding the trial
court’s ruling excluding the standard-of-care testimony at trial, the Court explained:
“[T]he very purpose of expert witness discovery statute is to give fair notice of what an
expert will say at trial. This allows the parties to assess whether to take the expert’s
deposition, to fully explore the relevant subject area at any such deposition, and to select
an expert who can respond with a competing opinion on that subject area.” (Bonds, at
pp. 146-147.) From the perspective of an opposing party, an expert declaration that omits
or inaccurately describes the substance of an expert’s expected testimony is akin to a
failure to disclose the expert at all and subject to the same consequences of exclusion.
(See ibid. [from the perspective of the opposing party,“[i]t makes little practical
difference whether the party proffering the expert testimony failed to submit an expert
witness declaration or submitted an inaccurate one”].)
Raskov acknowledges his expert declaration did not identify legal malpractice or
standard of care as topics of Schoenherr’s expert testimony. However, citing language in
Kennemur v. State of California (1982) 133 Cal. App. 3d 907, 919 regarding the effect of
former Code of Civil Procedure section 2037.3, the predecessor to Code of Civil
Procedure section 2034.260, he asserts a party may disclose the nature of the expert’s
testimony either in the declaration or at deposition. (See Kennemur, at p. 919 [“[i]n our
14
view [former Code Civ. Proc., § 2037.3’s requirement that witness list include “the
general substance of the testimony which the witness is expected to give] means the party
must disclose either in his witness exchange list or at his expert’s deposition, if the expert
is asked, the substance of the facts and the opinions which the expert will testify at trial”];
accord Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal. App. 3d 1244,
1257-1258; Easterby v. Clark (2009) 171 Cal. App. 4th 772, 779.) Contrary to Raskov’s
contention, neither Kennemur nor the cases quoting its language permit a party to
disclose the expert’s opinion for the first time in deposition. Rather, the Kennemur court
simply acknowledged that, when the substance of the expert’s testimony is disclosed in
deposition and the opposing party has had sufficient opportunity to cross-examine the
expert and conduct its own discovery or retain its own expert to counter the testimony,
the deficiency in the declaration may be harmless, rather than an “unreasonable” failure
to comply with discovery requirements. (See Kennemur, at p. 919, fn. 5 [if appellant had
disclosed substance of expert’s opinion at his deposition, “statutory noncompliance
would have been harmless since respondent would have been afforded the opportunity to
prepare for cross-examination and rebuttal of Mitchell’s opinion”]; see also Stanchfield v.
Hamer Toyota, Inc. (1995) 37 Cal. App. 4th 1495, 1504 [“[T]he exclusion sanction applies
only if noncompliance with the statute was ‘unreasonable.’ This limitation ‘may prevent
parties from waiting until trial to raise objections that could have been raised
beforehand.’”]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2014) ¶ 8:1713, p. 8J-31 (rev. #1, 2009) [party seeking exclusion is not
required to show prejudice; however, “absent some showing of prejudice, the court may
be more likely to find that the failure to comply with the expert witness disclosure
requirements was not ‘unreasonable’”].)
Had Schoenherr actually opined on Stapke & Harris’s professional negligence at
his deposition, the trial court might have ruled differently on the motion in limine and
permitted the testimony on standard of care since, in those circumstances, Stapke &
Harris would have had ample time after the disclosure to object to the expanded
testimony, continue the deposition or retain its own expert in the area. (See Easterby v.
15
Clark, supra, 171 Cal.App.4th at p. 780 [“[D]efendants in this case had the opportunity to
take Regan’s deposition in light of his changed opinion and prepare for cross-
examination and rebuttal of his testimony. The elements of unfair surprise and prejudice
. . . are entirely absent in this case.”].)6 But Schoenherr did not opine on the issue of
Stapke & Harris’s legal malpractice. In fact, he expressly disavowed having any opinion
whether Stapke & Harris had performed negligently in the probate action, explaining he
lacked sufficient facts to form such an opinion; he also confirmed he did not intend to
learn the facts of the case or form any new or different opinions other than those he
testified to in his deposition. (See Jones v. Moore (2000) 80 Cal. App. 4th 557, 565
[“[w]hen an expert deponent testifies as to specific opinions and affirmatively states those
are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial
to permit the expert to offer additional opinions at trial”]; Kennemur v. State of
California, supra, 133 Cal.App.3d at pp. 912-913 [when expert disclaimed at his
deposition having an opinion on causation, court did not err in precluding him from
testifying to that issue at trial].)
Although Schoenherr did testify generally at his deposition, based on a
hypothetical set of facts presented to him by Raskov’s counsel, that viewing an appraisal
for the first time seven days before trial was beneath the standard of care, that minimal
testimony was hardly sufficient to put Stapke & Harris on notice of Raskov’s intent to
expand the scope of Schoenherr’s opinion at trial, particularly in light of his testimony
disclaiming any opinion on Stapke & Harris’s negligence. Significantly, Raskov had
several months prior to trial to seek leave to amend and augment the expert declaration or
otherwise make that intent clear. He did not do so. While the court certainly could have
permitted the testimony in question, its determination that Raskov’s failure to comply
6
At the beginning of the hearing on the motion in limine, before it had an
opportunity to consider Schoenherr’s deposition testimony, the trial court stated, “If your
claim is that their side was given fair notice that he was going to testify on standard of
care and that they chose—the expert was offered up for deposition and that they chose
not to take him for deposition, then if you can show that then you probably have a good
point.”
16
with the discovery requirements was unreasonable under the circumstances was well
within its discretion. (See Easterby v. Clark, supra, 171 Cal.App.4th at p. 778 [court’s
ruling excluding evidence for noncompliance with discovery rules reviewed for abuse of
discretion]; Boston v. Penny Lane Centers, Inc. (2009) 170 Cal. App. 4th 936, 950 [same];
see generally Piscitelli v. Friedenberg (2001) 87 Cal. App. 4th 953, 972 [trial court abuses
its discretion only when its ruling exceeds the bounds of reason].)7
3. Substantial Evidence Supported the Damage Award
Raskov contends the jury’s award of $39,523.87 was not supported by substantial
evidence.8 In support of this claim, he highlights discrepancies between the deposition
and trial testimony of Stapke & Harris’s billing expert, Kim Karelis, as well as
discrepancies between Karelis’s testimony as to what was owed and the declaration filed
by Mark Stapke supporting his attorney fee request in the probate action. We need not
belabor this contention. Karelis testified, based on a comparison between the invoices
7
Raskov also objects to the court’s refusal to instruct the jury on legal malpractice.
Because the court’s ruling excluding evidence on standard of care was proper, it had no
duty to instruct on that issue at trial. (See Soule v. General Motors Corp. (1994)
8 Cal. 4th 548, 572 [“[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”].)
8
We review challenges to the sufficiency of the evidence to support the verdict for
substantial evidence. Under the substantial evidence test, “‘[W]e are bound by the
established rules of appellate review that all factual matters will be viewed most
favorably to the prevailing party [citations] and in support of the judgment. . . . “In brief,
the appellate court ordinarily looks only at the evidence supporting the successful party,
and disregards the contrary showing.” [Citation.] All conflicts, therefore, must be
resolved in favor of the respondent.’” (Campbell v. Southern Pacific Co. (1978)
22 Cal. 3d 51, 60, ital. omitted; accord, Western States Petroleum Assn. v. Superior Court
(1995) 9 Cal. 4th 559, 571.) “When we consider whether the evidence was sufficient to
support the . . . verdict, we review the entire record in the light most favorable to the
judgment to determine whether there are sufficient facts, contradicted or uncontradicted,
to support the judgment. [Citation.] Substantial evidence is evidence that is reasonable
and credible. In evaluating the evidence, we accept reasonable inferences in support of
the judgment and do not consider whether contrary inferences may be made from the
evidence.” (Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010)
191 Cal. App. 4th 435, 462-463.)
17
submitted and the payments Raskov and Aronson made, that Raskov and Aronson owed
$39,523.87. The discrepancies Raskov emphasizes on appeal were identified by him and
argued at trial; the jury resolved the conflicts in the evidence against him. Substantial
evidence supports the verdict.
4. The Court Did Not Err in Awarding Prejudgment Interest under Civil Code
Section 3287, subdivision (a)
Civil Code section 3287, subdivision (a), provides for the payment of prejudgment
interest to every person entitled to receive damages that are certain or capable of being
made certain by calculation if the right to receive such damages vested on a particular
day. (See Cassinos v. Union Oil Co. (1993) 14 Cal. App. 4th 1770, 1790 [“[t]he policy
underlying authorization of an award of prejudgment interest is to compensate the injured
party—to make that party whole for the accrual of wealth which could have been
produced during the period of loss”].) “The test for recovery of prejudgment interest
under [Civ. Code] section 3287, subdivision (a) is whether defendant (1) actually knows
the amount of damages owed plaintiff, or (2) could have computed that amount from
reasonably available information.” (KGM Harvesting Co. v. Fresh Network (1995)
36 Cal. App. 4th 376, 391; accord, Chesapeake Industries, Inc. v. Togova Enterprises, Inc.
(1983) 149 Cal. App. 3d 901, 907.) Prejudgment interest under Civil Code section 3287,
subdivision (a), is not available when the amount due depends on a judicial determination
based on conflicting evidence and is not readily ascertainable from the truthful data
supplied by the claimant to the debtor. (Wisper Corp. v. California Commerce Bank
(1996) 49 Cal. App. 4th 948, 960 (Wisper).) Absent a factual dispute, we independently
determine whether and when the damages were certain or capable of being made certain
by calculation for purposes of Civil Code section 3287, subdivision (a). (KGM
Harvesting, at p. 391, fn. 8; Employers Mutual Casualty Company v. Philadelphia
Indemnity Insurance Co. (2008) 169 Cal. App. 4th 340, 346.)
Raskov contends the court erred in awarding Stapke & Harris any prejudgment
interest because the amount of the claim was uncertain prior to the jury’s verdict. He
asserts this uncertainty is reflected in Stapke & Harris’s own contradictory statements as
18
to the amount due: In its December 2006 request for arbitration, Stapke & Harris claimed
fees due in the amount of $48,357.89; during the arbitration and in its subsequent cross-
complaint in the trial de novo, it demanded $43,013.97; and during trial its expert
testified that the amount owed was $39,523.87 (the amount the jury awarded). The
inconsistencies Raskov identifies, however, relate to credits he claimed for payments he
had made, an amount readily ascertainable by reviewing the cancelled checks. None is
sufficient to make the damage claim uncertain for purposes of awarding prejudgment
interest under Civil Code section 3287, subdivision (a). (Compare KGM Harvesting Co.
v. Fresh Network, supra, 36 Cal.App.4th at p. 391 [“[t]he fact that an error of
approximately 5.5 percent was made in the original calculations does not make the
damages uncertain”; plaintiff entitled to prejudgment interest]; and Marine Terminals
Corp. v. Paceco, Inc. (1983) 145 Cal. App. 3d 991, 997-998 [6.5 percent discrepancy
between relief requested and evidence of damages at trial not make the damages
uncertain; “[t]he errors . . . were minor and could have been easily corrected at the time
the demand for payment was made”]; with Wisper, supra, 49 Cal.App.4th at p. 961
[where plaintiff recovered “a mere 25 percent of its claimed damages,” the “significant
disparity between that which was sought and that which was ultimately found
appropriate” demonstrated the damage claim was neither certain nor readily
ascertainable].) The court determined the amount of fees owed became readily
ascertainable by November 1, 2006, when, as Karelis testified, the outstanding balance of
$39,523.87 could be calculated from reviewing Stapke & Harris’s invoices and Raskov’s
and Aronson’s cancelled checks. The court did not err in awarding prejudgment interest
pursuant to Civil Code section 3287, subdivision (a).9
9
Raskov does not argue his set-off claim based on allegations of malpractice made
the damages uncertain, nor would such a claim have merit. (See Hansen v. Covell (1933)
218 Cal. 622, 629 [“debtor may not defeat the creditor’s right to interest on a liquidated
sum by setting up an unliquidated claim as an offset”]; Great Western Drywall, Inc. v.
Roel Constr. Co., Inc. (2008) 166 Cal. App. 4th 761, 768 [“The ‘“mere pleading of
unliquidated counterclaims does not render unliquidated an otherwise certain or
19
DISPOSITION
The judgment is affirmed. Stapke & Harris is to recover its costs on appeal.
PERLUSS, P. J.
We concur:
ZELON, J.
IWASAKI, J,*
determinable debt owing to the plaintiff . . . . The unliquidated counterclaims are given
treatment as discounts, not as payments made at the time the debt is due.”’”].)
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
20