After a three-week trial, the jury found in favor of Dagny Knutson on her fraudulent concealment and intentional breach of fiduciary duty claims against her former attorney, Richard J. Foster, and awarded her economic and noneconomic damages. The trial court granted Foster's motion for a new trial on the grounds that Knutson did not prove Foster's conduct was the cause of Knutson's damages and that Knutson had failed to offer substantial evidence of her emotional distress damages.
We reverse and reinstate the jury's verdict because the motion for a new trial was granted on erroneous legal theories. We partially publish this opinion for two reasons. First, we hold that claims of fraudulent concealment and intentional breach of fiduciary duty by a client against his or her attorney are subject to the substantial factor causation standard, not the "but for" or
Second, we hold that in a case such as this, where the plaintiff's emotional distress consisted of anxiety, shame, a sense of betrayal, and a continuing impact on personal relationships, the testimony of the plaintiff alone is sufficient to support emotional distress damages. Knutson's testimony that the contract negotiated by Foster, and which he encouraged her to enter, led to stress and extra pressure that made swimming an emotionally painful activity, that she felt shamed and betrayed when she learned about Foster's duplicitousness, and that her personal relationships have been impacted due to her lack of trust in others, was sufficient to establish her damages in the absence of any expert testimony.
STATEMENT OF FACTS
A.
KNUTSON, A RISING SWIMMING STAR, ENTERS AN ORAL AGREEMENT WITH USA SWIMMING'S HEAD COACH.
As a high school student in North Dakota, Knutson was an internationally ranked swimmer. She was named high school swimmer of the year by Swimming World Magazine in her junior and senior years of high school. As a high school junior, she broke the American record in the 400-meter individual medley. She was ranked 16th in the world in the 200-meter freestyle, and 22nd in the world in both the 400-meter freestyle and the 200-meter individual medley.
In her senior year of high school (2009-2010), Knutson received scholarship offers
In March 2010, Mark Schubert, USA Swimming's head coach, told Knutson that Yetter was leaving Auburn University. Schubert advised Knutson to swim professionally rather than at Auburn or another university. He orally promised her support to train at a "Center for Excellence" formed by USA Swimming in Fullerton, California, including room, board, tuition, and a stipend until she earned her degree. Knutson, her parents, and her coaches were present when Schubert made this offer; all of them agreed Schubert's offer did not include
At Schubert's suggestion, Knutson retained Evan Morgenstein, through his company Premier Management Group LLC (PMG), to be her sports agent. She turned professional, accepted prize money, and signed an endorsement agreement with Mutual of Omaha. Morgenstein's standard athlete representation agreement was signed by Knutson's mother, but never by Knutson herself.
B.
KNUTSON RETAINS ATTORNEY FOSTER WHEN USA SWIMMING REFUSES TO HONOR THE ORAL AGREEMENT .
A few months after Knutson moved to Fullerton, Schubert's employment was terminated by USA Swimming. Schubert told Knutson not to worry, and assured her that USA Swimming would keep the promises he had made to her. However, Knutson became concerned because she was not receiving any money from USA Swimming.
At Morgenstein's suggestion, Knutson retained attorney Richard Foster to represent her in an attempt to get USA Swimming to honor the oral agreement made by Schubert. Foster was well-connected within the swimming world. At the time he represented Knutson, Foster was on the water polo technical committee for the Fédération Internationale de Natation (FINA), the international governing body for swimming, diving, water polo, and synchronized swimming. Foster had been president of the governing body for United States Aquatic Sports (USAS) from 2006 through 2010. (USAS is the umbrella agency that interacts with FINA on behalf of aquatic sports organizations in the United States, including USA Swimming.) Foster was the past-president of USA Water Polo, and had been the chairperson of the organizing committee for the 2004 U.S. Olympic swim trials. Foster was the vice-president and an executive council member for the Swimming Union of the Americas (ASUA), a continental aquatics association, from 2003 to 2007.
At the time he represented Knutson, Foster considered himself to be a high-level person within the aquatics industry and had on-going relationships with and access to many leaders at USA Swimming. Foster did not disclose
Foster had represented Schubert in 2006 in reviewing Schubert's contract as USA Swimming's head coach. When USA
Had Knutson known that Foster had previously represented Schubert, or had she known of Foster's personal and professional relationships with USA Swimming, she would not have agreed to let him represent her "[b]ecause he has both sides' interest at heart, not just mine."
C.
FOSTER NEGOTIATES A SETTLEMENT WITH USA SWIMMING ON BEHALF OF KNUTSON.
On behalf of Knutson, Foster sent an e-mail to Chuck Wielgus, USA Swimming's Executive Director, on November 10, 2010, asking Wielgus to confirm that USA Swimming would abide by Schubert's oral agreement to pay for Knutson's tuition, room and board. Wielgus sent Foster an e-mail on the same day, stating, "Let's not let this escalate." Foster responded, "I don't want this to escalate either." Foster never told Knutson that he had made this statement.
In another e-mail dated November 11, Wielgus responded that Schubert did not have the authority to make any such promises to Knutson, that Schubert had never made anyone else at USA Swimming aware of any such promises, and that USA Swimming's budget for the years in question had not been approved. Wielgus claimed there was no evidence of a written or oral agreement with Knutson and didn't even know if there was anything in the budget to pay her.
Foster suggested that Richard Young, USA Swimming's general counsel, speak directly with Schubert, who confirmed that there was, in fact, an agreement with Knutson and that she was to be paid through grants or out of a
Although Foster believed that the "bargaining chip for the whole negotiation period [was] that we could go to the press," he also believed that taking the story to the press would cause USA Swimming to want to pursue litigation. Foster never suggested to Knutson the possibility of involving or threatening to involve the press as a bargaining tool.
Foster testified he did not think Knutson was "in a position to go through a couple of years of litigation" and did not believe she would succeed in litigating against USA Swimming because the oral contract would be barred by the statute of frauds. However, Foster knew that Knutson detrimentally relied on the promises Schubert made by, among other things,
In an e-mail dated November 16, 2010 to Foster, Wielgus stated: "STRICTLY CONFIDENTIAL-PLEASE JUST KEEP BETWEEN YOU AND ME [¶] These situations are extremely disconcerting ... and we will do our best to work through them. [¶] Confidentially, I have posed the following questions to Bruce Stratton, Jim Wood and Rich Young. [¶] 1. What is our position when we meet with Kate Ziegler next Monday morning? [
On November 17, Wielgus sent Foster an e-mail stating that "USA Swimming should fulfill the promises that Mark made to ... Dagny, regardless of whether or not he had the authority to make such promises." Wielgus asked Foster to provide him with "a written summary of exactly what ... Dagny's mom believe[s] was promised to them by Mark, along with their very best estimate and expectation as to the full extent of the financial commitment that USA Swimming would have to ... them," so Wielgus could present the information to USA Swimming's board of directors. In late November, the USA Swimming board of directors approved a motion that the organization would "make good" on Schubert's promises to Knutson regarding living expenses and tuition, with the details to be worked out and approved by Wielgus. Wielgus advised Foster that Young would be confirming with Schubert the terms of the agreement claimed by Knutson. Wielgus also noted that any final agreement would have timetables and performance markers or metrics.
In an e-mail to Young on January 25, 2011, Foster stated that Schubert had told Knutson, her parents, her previous coach, and others that USA Swimming "would pay her room, board, tuition and books
On February 4, 2011, Young e-mailed Foster: "Mark [Schubert] could not have been more clear that he did not give Dagny an unconditional commitment through the 2016 Olympic Games. Rather, USA Swimming's funding to her would be based on her continued high level of performance. Mark was equally clear that the evaluation of Dagny's performance and continued support was to be made by him as Head Coach and National Team Director. However, if Dagny would prefer to have USA Swimming's post-2012 support
On March 15, 2011, Foster e-mailed Knutson to inform her that USA Swimming was willing to settle the matter on the following terms: (1) assist Knutson financially by getting her out of her lease in California and paying for one flight to Florida; (2) pay her tuition from January 2011 through December 2012; (3) pay her $1,000 per month in athlete support through June 2011; and (4) pay her tuition and support after 2012 through 2016 if she was in the top 25 in the world in an Olympic event based on FINA's September ranking.
Knutson responded on March 16 explaining, inter alia, that the performance marker "isn't good because it adds pressure for me to do something for USA Swimming when all they've done is negatively affected my career." Foster forwarded this attorney-client privileged document to Young at USA Swimming.
On March 19, Foster sent an e-mail to Knutson and Morgenstein, stating that a performance marker "is not unreasonable" but should be modified to apply if Knutson were "top 25 in the world or top 3 in the U.S. " (Italics added.) The e-mail also stated: "At this point, I don't think a lawsuit is advisable. While we may get more money for Dagny, the attorneys' fees would eat up the difference in our proposal and the current counter-proposal.[
Foster did not consult with any expert before making this recommendation regarding performance markers to Knutson. Rather, he relied on Morgenstein, despite the fact that as a sports agent, Morgenstein stood to benefit from a performance marker because it would give incentive to Knutson to perform well and he would make money on endorsement deals. Foster made no inquiries to learn what percentage of collegiate swimmers had ever met the specified performance marker even once, much less over a continuous five-year period, before advising Knutson to accept it. Foster hired no
Foster's April 2, 2011 e-mail to USA Swimming stated, "We will agree to a performance standard, even though no such standard was discussed. However, we would like to make it top 25 in the world or top three in the U.S."
During the negotiations for the settlement agreement, Foster informed USA Swimming, without Knutson's authority, that Knutson was out of money. Once, Foster e-mailed Young: "Can we get this resolved ASAP? At the last meet, Dagny was going to sleep at the airport because she is out of money." On another occasion, Foster forwarded to Wielgus an e-mail from Morgenstein that "Dagny has to pay $2500 for her classes or they [will] drop her. How can we get this contract and payments??? [¶] It[']s causing her und[ue] stress!" And again, Foster e-mailed Young: "FYI, I'm getting more and more pressure to file suit. Dagny is absolutely broke." Foster testified he received permission from either Knutson or Morgenstein to tell USA Swimming about Knutson's financial problems, but agreed that he never had Knutson's written authority to divulge attorney-client communications.
Foster sent the settlement agreement to Knutson and asked her to read it and let him know if she had any questions. He never met with her or had a telephone conference to discuss the agreement to ensure that she understood what she was committing to. Indeed, after Foster sent the final agreement to Knutson, she responded, "Some of it was hard for me to understand because of the wording." Knutson also raised specific questions regarding upfront payments from USA Swimming. Foster's response to Knutson reads: "We wanted to get a little more up front, but this is a good deal. Sign the agreement, fax the signature page to me and mail the original."
D.
KNUTSON AND USA SWIMMING REACH A DEAL.
The agreement between Knutson and USA Swimming was signed on April 20, 2011. The terms of the deal were as follows: Tuition was provided from January through December 2012. Between 2013 and 2016, all payments were contingent upon Knutson being in the top 25 in the world or the top three in the United States in an Olympic event based on FINA's September rankings. The settlement agreement also released Schubert, although Knutson received no additional consideration for doing so. Foster never told Knutson she was
E.
WERE THE PERFORMANCE MARKERS ACHIEVABLE, AND DID KNUTSON HAVE TO AGREE TO THEM?
At trial, Nancy Hogshead-Makar, an Olympic gold medalist, testified as an expert witness for Knutson. Hogshead-Makar testified that the performance markers included in the settlement agreement could not have been met by the most elite swimmers in the world. "It's onerous. It's burdensome. It's very rare that even the most elite athlete would be able to make that standard." She further testified that the
By contrast, based on her knowledge of NCAA rules, Hogshead-Makar testified a college scholarship accommodates the "ups and downs that happen[ ] with students, particularly student athletes." Universities usually have counselors on staff paid for by the school, "a medical team that is there for the athletes," and a "safety net" for students to assure that their academic and swimming careers would stay on track despite life's interruptions. Hogshead-Makar spoke with the Auburn University swimming coach, who informed her that the services available there included emotional counseling, medical care, academic accommodations for eating disorders or other issues, and a team and peer support group "that is really unparalleled."
Foster never explained to Knutson that, even if she refused to enter the settlement agreement, she was already entitled to $2,500 per month if she maintained a top 16 world ranking under the Athlete Partnership Agreements, a funding program through USA Swimming. (Although the Athlete Partnership Agreements are discussed in the appellate record, we have no specific details about them.) In addition, grants were available to swimmers ranked in the top 32 in the world for tuition assistance.
KNUTSON TAKES TIME OFF FROM SWIMMING AND EVENTUALLY RETIRES FROM THE SPORT.
After signing the deal with USA Swimming, Knutson transferred from Fullerton to Florida to swim under another Olympic coach. But swimming was not the same for her. "Every day I went to practice, meaning, I guess in my mind when I got to Florida-it was kind of like a rain cloud always following me. It was always on my mind that, I mean, that was something that I had to do. [¶] It didn't ... give me freedom to just chase the original dreams I wanted. It was like I was swimming on egg shells or walking on egg shells. I'm swimming not to lose."
In early 2012, Knutson stopped swimming to enter treatment programs for an eating disorder. (Knutson suffered from the eating disorder before signing the settlement agreement; she did not tell Foster or USA Swimming about it.) USA Swimming stopped paying Knutson in June 2012.
Knutson finished treatment in August 2012 and moved back to North Dakota, where she resumed training with her former coaches. She swam in several meets around the country.
In late 2013, she attempted to regain NCAA eligibility. To do so, the NCAA required that she provide them with a copy of her agency agreement with Morgenstein. After Knutson e-mailed Morgenstein three times without any real response, Foster became involved. Morgenstein asked Foster to request a release from Knutson. Foster told Knutson that Morgenstein could not find the agreement and had asked for a "statement not holding him liable for [Knutson] turning pro" in exchange for confirmation of the agency agreement. Knutson trusted Foster, and thought she had to provide the release in order to get the information needed to regain NCAA eligibility. Knutson received no consideration for the release of Morgenstein.
In October 2013, Knutson asked Morgenstein for "records of dates of my payments to you from my mutual contract." Morgenstein forwarded Knutson's request to Foster who wrote to Morgenstein: "I don't see any problem. She has already waived any claims against you which would be extremely weak in any event."
Knutson did not regain her NCAA eligibility, and in February 2015, she decided she would no longer swim competitively.
KNUTSON LEARNS ABOUT FOSTER'S CONFLICTS OF INTEREST.
In 2014, Knutson learned of Foster's conflicts while representing her. She felt "very betrayed" and believed he had manipulated and taken advantage of her because she was naïve.
In April 2014, Knutson, through her new counsel, requested that Foster produce his entire file, including but not limited to e-mails. When compared to documents later produced in response to formal discovery requests, it became apparent that Foster had not initially produced many documents, including his November 16, 2010 e-mail to Wielgus stating that he would not "get involved with litigation against USA Swimming."
H.
PROCEDURAL HISTORY
In September 2014, Knutson sued Foster for fraudulent concealment and breach of fiduciary duty. During trial, the court granted nonsuit as to plaintiff's noneconomic damages flowing from breach of fiduciary duty.
The jury found in favor of Knutson on both causes of action, and awarded economic damages of $217,810, past noneconomic damages of $250,000, and future noneconomic damages of $150,000. The jury awarded no punitive damages, despite its finding that Knutson proved by clear and convincing evidence that Foster engaged in wrongful conduct towards Knutson with malice, oppression or fraud. Judgment was entered in favor of Knutson.
Foster filed a motion for a new trial.
I.
THE TRIAL COURT ERRED BY GRANTING FOSTER'S MOTION FOR A NEW TRIAL ON THE GROUND OF INSUFFICIENCY OF THE EVIDENCE OF CAUSATION.
A.
Legal Principles and Standard of Review
"The authority of a trial court in this state to grant a new trial is established and circumscribed by statute. [Citation.] [Code of Civil Procedure] section 657 sets out seven grounds for such a motion: (1) 'Irregularity in the proceedings'; (2)
"On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons." ( Code Civ. Proc., § 657.) "There are two exceptions: Orders may not be affirmed on the ground of insufficiency of the evidence or on the ground of excessive or inadequate damages unless that ground is specified in the order." ( Oakland Raiders, supra,
Knutson's lawsuit alleged Foster committed fraud and breached his fiduciary duty while representing Knutson in her negotiations with USA Swimming. In his motion for a new trial, Foster contended that Knutson was required to
B.
The Trial Court Erred by Finding Insufficiency of the Evidence Regarding the Causation Element for Both the Fraudulent Concealment and Intentional Breach of Fiduciary Duty Claims.
Knutson contends the trial court erroneously granted the motion for a new trial. She claims that the " 'better result' " method is an element unique to claims for attorney malpractice, but is inapplicable to fraudulent concealment and intentional breach of fiduciary duty claims asserted against an attorney. Foster argues the trial court did not apply a " 'better result' " method but rather the substantial factor test for causation that is applicable to Knutson's claims: "The Superior Court did not hold that a party must demonstrate that a 'better result' must be shown as a matter of law. Rather [it] held that, under the facts of this case , the jury could not have properly found that Foster's purported fraud was a substantial factor in causing [Knutson]'s claimed damages without such a showing." For reasons we will explain, we conclude the trial court erred by
1.
Legal Standards of Causation Concerning Attorney Malpractice
We begin our analysis by reviewing the standard of causation applicable to legal malpractice claims, as legal malpractice is often conflated with claims of fraud and breach of fiduciary duty asserted against attorneys.
In California, an attorney is subject to liability for malpractice "when his or her negligent investigation, advice, or conduct of the client's affairs results in loss of a meritorious claim." ( Stanley v. Richmond (1995)
The purpose of the causation requirement is to safeguard against speculative and conjectural claims and to ensure that damages awarded for the attorney's malpractice actually have been caused by the malpractice. ( Viner v. Sweet, supra,
2.
Sufficient Evidence Was Presented at Trial to Establish Substantial Factor Causation on the Claim for Fraudulent Concealment.
Fraud is an intentional tort distinct from malpractice. Fraud includes "[t]he suppression of a fact, by one who is bound to disclose it." ( Civ. Code, § 1710, subd. (3).) " '[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.' [Citation.]" ( Hahn v. Mirda (2007)
Causation for fraud is properly determined using the substantial factor test. ( Strebel v. Brenlar Investments, Inc. (2006)
Here, the trial court recognized the different standards of causation between legal malpractice claims and fraud claims, but nevertheless erroneously applied the malpractice standard of causation to the fraudulent concealment claim. Although the court referred to the substantial factor for causation, it used and applied the but for test. The order granting the motion for a new trial reads, in relevant part: "As to [Knutson]'s fraud theory, substantial factor causation is still an element of proof and it only seems reasonable to this Court that [Knutson] needs to prove that if the misrepresentations had not been made, or that full disclosure of these relationships had been made and [Knutson] had employed another attorney to deal with USA Swimming, that she would have received a better result."
When the correct standard of causation is applied, it is clear that sufficient evidence supports the jury's verdict on the fraud claim, and the trial court erred by granting the motion for a new trial on this ground. Foster concealed from Knutson:
- he had a relationship with USA Swimming and its personnel;
- his relationship with USA Swimming created a conflict of interest vis-à-vis his representation of Knutson;
- he would not litigate against USA Swimming, and he had shared that information with USA Swimming during his negotiations on behalf of Knutson;
- he had refused to represent Schubert in litigation against USA Swimming because he believed that would create a conflict of interest;
- he had told USA Swimming's executive director that he did not want the dispute between Knutson and USA Swimming "to escalate";
- making her story public or taking it to the press would be a bargaining chip for Knutson;
- Knutson might have an independent claim against Schubert;
- he did not believe she could prevail in litigation against USA Swimming due to the statute of frauds;
- USA Swimming had provided him with confidential information he had not shared with Knutson at USA Swimming's request;
- he had told USA Swimming during the negotiations that Knutson was out of money;
- the settlement agreement contained a release of Schubert and a confidentiality provision;
- his representation that Knutson could reach the performance markers in the settlement agreement was not based on any independent research;
- he had forwarded attorney-client privileged communications to USA Swimming during the negotiations for the settlement agreement;
- he had withheld e-mails containing evidence of his conflicts of interest when Knutson requested her file from his office; and
- Knutson might have been eligible for financial support through the Athlete Partnership Agreements or other sources without entering the settlement agreement.
A substantial factor in Knutson's decision to enter into the settlement agreement was Foster's fraudulent concealment of the foregoing facts. The settlement agreement contained unattainable performance
The jury found Foster liable for fraud and awarded Knutson economic damages of $217,810 and noneconomic damages of $400,000. There was enough evidence to find that Foster's fraud was a substantial factor in causing Knutson's damages.
3.
Sufficient Evidence Was Presented at Trial to Establish Substantial Factor Causation on the Claim for Breach of Fiduciary Duty.
"The breach of fiduciary duty can be based upon either negligence or fraud depending on the circumstances. [Citations.] It has been referred to as a
The trial court applied the legal malpractice standard of causation to Knutson's intentional breach of fiduciary duty cause of action. The court cited The Rutter Group's treatise on professional responsibility to equate causation for legal malpractice with causation for all breaches of fiduciary duty: " 'The rules concerning causation, damages, and defenses that apply to lawyer negligence actions ... also govern actions for breach of fiduciary duty.' " (See Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2017) ¶ 6:425.5, pp. 6-171 to 6-172, citing Rest.3d Law Governing Lawyers, § 49, com. e, pp. 349-352.) This statement of the law is correct, however, only as to claims of breach of fiduciary duty arising from negligent conduct.
Substantial factor causation is the correct causation standard for an intentional breach of fiduciary duty. ( Stanley v. Richmond, supra ,
Here, Knutson's claim for breach of fiduciary duty is based on intentional conduct and, thus, is subject to the substantial factor standard of causation. Knutson's counsel argued at trial that Foster breached the following four fiduciary duties: "Loyalty, conflicts, not keeping the client informed, and failing to protect confidential information." The jury needed only to find that one of the claims for the breach of fiduciary duty was a substantial factor in causing harm to Knutson, and it did so.
- failing to provide written disclosures to Knutson of his relationships with USA Swimming;
-failing to ensure Knutson understood the terms of the settlement with USA Swimming;
-failing to employ all negotiation strategies beneficial to Knutson (such as threatening to go public with the dispute);
- failing to disclose all communications he received from USA Swimming personnel;
- failing to obtain any consideration for Knutson while encouraging her to sign a release of claims against Morgenstein; and
- telling Morgenstein that Knutson's claims against him would be weak.
The evidence established Foster breached his duty to avoid conflicts of interest by failing to advise Knutson in writing of his relationships with USA Swimming and Schubert. He breached his duty to keep Knutson informed by failing to share with her "confidential" information provided by USA Swimming. He breached his duty to protect confidential information by forwarding to USA Swimming privileged attorney-client communications, and by disclosing Knutson's financial condition without her knowledge or consent. And Foster breached his duty to provide Knutson a complete copy of her client file when requested. These breaches of Foster's fiduciary duty caused Knutson harm initially by failing to provide her with all the information she needed to make an informed decision about entering into the settlement agreement with USA Swimming and failing to ensure that Knutson's best interests were being protected by Foster during the negotiations. Knutson was also harmed when she later learned of the Foster's breaches and suffered emotional distress.
II.
THE TRIAL COURT ERRED BY GRANTING FOSTER'S MOTION FOR A NEW TRIAL ON THE GROUND OF EXCESSIVE DAMAGES.
A.
The Trial Court Erred by Concluding Testimony by a Lay Witness Was Insufficient, in This Case, to Establish Emotional Distress Damages.
The trial court also granted the motion for a new trial on the ground that the award of noneconomic damages was excessive because there was no
The law in this state is that the testimony of a single person, including the
Numerous cases approve the award of emotional distress damages based on the testimony of nonexpert witnesses. In Little v. Stuyvesant Life Ins. Co. (1977)
In Iwekaogwu v. City of Los Angeles (1999)
Testimony of an expert witness is required when the subject matter "is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." ( Evid. Code, § 801, subd. (a).) The emotional distress to which Knutson testified is not beyond the common experience of the jurors. Knutson testified that the performance markers in the agreement led to stress and extra pressure that made swimming an emotionally painful activity.
"Q. How do you describe-after the agreement was entered into with USA Swimming in April of 2011, can you describe in your own words any stress of extra pressure you felt in having to meet that standard? [¶] ... [¶]
"It didn't-to me, it didn't give me freedom to just chase the original dreams I wanted. It was like I was swimming on egg shells or walking on egg shells. I'm swimming not to lose."
Knutson also testified that when she learned about Foster's duplicitousness, she felt betrayed and developed a lack of trust in others that continued through the time of trial.
"Q. When you found out about things that Mr. Foster had done when he represented you, as you indicated you found these things out recently, how did it make you feel?
"A When I found all this information out, I felt very betrayed.
"Q. Can you elaborate as to what you mean by 'betrayed'?
"A. Ever since I was eight years old, before I started swimming, all I wanted to do was go to the Olympics.
"I put my whole life into the sport of swimming. And it wasn't fair to me what I found out. It wasn't fair to my family who sacrificed just as much to make sure I could go to a swim meet, and I just-I don't know how I'm supposed to trust someone like that again.
"I just assume people are not good, like I used to-I felt manipulated and taken advantage of because I was naïve. I didn't know. I didn't know.
"I remember last summer, I drove from Phoenix to North Dakota to spend the summer at home. And the second half of the trip, I was supposed to stay with a family from South Dakota just to break up the drive, and I just sobbed on the way home; my swimming career and not-not being able to swim with the same friends and not being able to accomplish things that I really wanted to.
"I felt violated that someone did that, and shared that stuff with other people,
"So I got home about 3:00 in the morning, because I just couldn't get myself to have to stay with someone else."
B.-C.
III.-VII.
DISPOSITION
The postjudgment order granting Foster's motion for a new trial is reversed. The matter is remanded with directions to reinstate the judgment. Appellant Dagny Knutson to recover costs on appeal.
Pursuant to Business and Professions Code section 6086.8, subdivision (a) and California Code of Judicial Ethics canon 3D(2), the clerk of this court is directed to forward a copy of this opinion to the California State Bar and directly to Richard J. Foster upon issuance of the remittitur.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.
Notes
Ziegler was another promising young swimmer to whom Schubert had also made oral promises of support by USA Swimming.
At no time had Foster explained to Knutson that she might be able to find an attorney to sue USA Swimming on a contingency fee basis.
Foster also filed a motion for judgment notwithstanding the verdict. In light of its ruling on the motion for a new trial, the court denied the JNOV motion as moot. On appeal, Foster does not address the ruling on the JNOV motion.
See footnote *, ante .
See footnote *, ante .