Opinion
Respondent James J. Little asserted claims against appellant Amber Hotel Company (Amber) for tortious interference with contract,
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Action
In August 2004, Amber initiated a lawsuit against Frank Martini and his brother, Satanand Sharma, together with several businesses they controlled (collectively, the Martini parties).
In October 2004, Martini and Sharma hired Attorney Little to provide representation in the action. They executed a contract entitled “Retainer Fee Agreement and Attorney’s L[ie]n,” which provided in pertinent part: “Client agrees to pay Attorney $275.00 per hour, $175.00 per hour of which will be deferred by Attorney to be held as [a] lien and collected in full against any attomeyG fee award made by the Court in favor of Client at the conclusion of this case. In this regard, Client specifically acknowledges, agrees, gives and assigns to Attorney an attorney’s lien on any sum to which Client may become entitled to secure Attorney’s compensation for said deferred fees. Given that there exists a risk that Client will not be successful in this case (such that there is the further risk that Client will not be entitled to any attomeyG fee award), Client agrees that in the event there is an attorney[] fee award in favor of Client, Attorney is entitled ... to keep one hundred percent (100%) of any attomeyG fees awarded Client without deduction for the $100.00 discounted hourly rate to which Attorney is entitled .... Client agrees that if there is no recovery to which the above-referenced lien attaches Client remains responsible for the full amount of the deferred fees.”
Following a trial, on December 3, 2007, judgment was entered in favor of the Martini parties and against Amber on Amber’s claims. The judgment stated: “The court reserves jurisdiction to determine whether to award costs and to make an attorney fee award and, so, to determine the amount of that award.” After the trial court denied Amber’s new trial motion, Amber noticed an appeal from the judgment and postjudgment mlings on February 29, 2008.
Following settlement negotiations between Amber and the Martini parties, on June 11, 2008, notices were filed acknowledging satisfaction of the December 2007 judgment, as modified by the March 2008 fee award order. The notices stated: “The judgment creditor has accepted payment or performance other than that specified in the judgment in full satisfaction of the judgment.” On June 17, 2008, Amber abandoned its appeal.
B. Underlying Action
1. Complaint
On May 18, 2009, Little initiated the underlying action against the Martini parties and Amber.
2. Trial
The jury trial on Little’s claims occurred in June 2010.
a. Little’s Evidence
Little testified as follows: At the time of trial, he had been practicing law for 28 years. Sharma was among his first clients. When Martini and Sharma sought to engage Little, he advised them to seek independent legal advice with respect to the lien provisions of the proposed retainer agreement.
After Amber noticed its appeal from the December 2007 judgment, Little decided not to represent the Martini parties during the appeal, as his retainer agreement did not require him to do so, and the Martini parties lacked the funds to pay him for continued representation. However, when Little tried to withdraw his representation regarding the appeal, the appellate court informed him that he remained counsel of record.
In March 2008, after Little requested a fee award on behalf of his clients, Martini told Little that Amber had proposed to settle the action for $75,000. Martini also said that he intended to give Little one-third of the settlement funds. Little reminded Martini that his fee agreement contained a lien provision, told Amber’s counsel, Julian Pollok, that he had a lien against any fee award, and served formal notices of lien in the action. Later, Little learned that Martini was considering a settlement that encompassed the judgment and the Martini parties’ potential malicious prosecution action against Amber, but was assured that Martini “was protecting and preserving” Little’s attorney fees.
Little heard nothing more regarding settlement until June 2008, when the ' trial court sent him copies of the Martini parties’ acknowledgments of satisfaction of judgment, prepared by Pollok, and a copy of Amber’s dismissal of the appeal. No party served these notices upon Little, even though he was a counsel of record in the trial action and on appeal.
Little testified that as a result of the settlement, he was unable to recover $190,684.06 in fees owed under the retainer agreement, comprising the $152,700 fee award and approximately $37,984 in other unpaid fees. According to Little, Amber’s settlement with the Martini parties denied him the benefit of the fee award and prompted them not to pay his outstanding deferred fees. Little further stated that he sought to recover the $190,684.06 in unpaid fees solely from Amber because the Martini parties would not have breached the retainer agreement “but for the false representations made to them” by Amber.
Little also testified that he had incurred additional damages due to the loss of what he termed “the Sharma account.” Although he remained “amicable” with Martini and Sharma, they no longer employed him. Prior to the settlement, they had paid him an average of $150,000 per year for at least eight years, resulting in annual net profits of $82,000. In view of his age, he
Martini also testified on Little’s behalf.
In early 2008, Martini was contacted by Stephen Post, Amber’s president. Post offered to pay the Martini parties a sum of money and dismiss Amber’s appeal in exchange for a “dismissal” of the December 2007 judgment and abandonment of any potential malicious prosecution action. As the litigation involving Amber threatened high litigation expenses, Martini explored a settlement with Amber. During the negotiations, Pollok maintained that the December 2007 judgment was certain to be reversed on appeal, and that Martini would ultimately be subject to a judgment for damages exceeding $1 million. When Martini informed Little that Post had offered $75,000 to settle the litigation, Little reminded him of the attorney lien and noted that the fee award Little sought was likely to exceed the offer. According to Martini, in negotiating the settlement, he repeatedly raised the issue of Little’s lien, and never intended to release it.
At some point, Martini entered into an oral settlement agreement with Post. Under its terms, Amber was to dismiss its appeal and give Martini $100,000 “in a quiet way,” that is, the payment was not be disclosed to anyone, including Little. In exchange, Martini agreed not to pursue a malicious prosecution action against Amber. According to Martini, Post and Pollok told him that the settlement agreement did not concern the attorney fee award; in addition, Post promised that Amber “would take care of’ Little’s claim to the fee award. As a result of these assurances, Martini and the other Martini parties executed the acknowledgments of satisfaction of judgment. On March 24, 2008, at Post’s direction, Martini made a nighttime drive to Malibu, where Post gave him $100,000 in cash.
Following the settlement and Little’s lawsuit regarding the fee award, Martini no longer hired Little, even though he had no hard feelings toward his former counsel. According to Martini, his decision not to rehire Little was
b. Amber’s Evidence
Post testified that he had owned Amber since 1998. According to Post, in late March 2008, Martini approached him regarding a settlement of the action involving Amber. Post denied that their negotiations addressed a potential malicious prosecution action; moreover, he asserted that he had no concerns regarding such an action, as he believed that Amber’s claims against the Martini parties were meritorious. Post and Martini agreed to a “walk away” settlement, under which Amber abandoned its appeal and the Martini parties executed acknowledgments of satisfaction of judgment. Neither side was obliged to pay funds to the other. Post further testified that the settlement agreement was intended to extinguish Amber’s obligation to pay the attorney fee award. Post was uncertain whether he first became aware of Little’s attorney lien before or after the parties agreed to settle the action.
Pollok, Amber’s attorney, testified that during the settlement negotiations, Martini never suggested that he was considering a malicious prosecution action. According to Pollok, he first became aware of Little’s lien when he received a letter dated March 20, 2008, from Little. The letter described the lien and was accompanied by a formal lien notice. In a reply dated June 25, 2008, Pollok told Little that although the settlement encompassed the fee award, it did not improperly impair Little’s lien, as Amber and the Martini parties had entered into a “walk away” settlement under which no money exchanged hands. Pollok maintained that the lien attached only to funds actually paid to the Martini parties under the attorney fee order.
3. Special Verdicts and Judgment
The jury was instructed on three causes of action: two claims against Amber for intentionally inducing a breach of contract and intentionally interfering with a contract, and a claim against the Martini parties for breach of contract.
On July 16, 2010, the trial court entered judgment in accordance with the special verdicts. On August 23, 2010, after denying Amber’s motions for a new trial and judgment notwithstanding the verdict, the court entered an amended judgment to reflect the imposition of a Franchise Tax Board lien. This appeal followed.
DISCUSSION
Amber challenges the judgment on several grounds, arguing that the interference claims fail as a matter of law and for want of substantial evidence. Amber contends (1) that a contractual attorney’s lien does not oblige the client to refrain from entering into a settlement that nullifies the attorney’s recovery under the lien, (2) that the jury was misinstructed regarding Little’s rights under the lien, and (3) that the special verdicts regarding damages are defective. For the reasons explained below, we discern no reversible error.
A. Governing Principles
Generally, an attorney’s lien is “equitable in nature.” (Brienza v. Tepper (1995)
An attorney’s lien is ordinarily created by contract. (Cetenko v. United California Bank (1982)
A third party that impairs an attorney’s rights under such a lien may be subject to liability for tortious interference with contractual relations or prospective economic advantage. (Siciliano v. Fireman’s Fund Ins. Co. (1976)
To the extent Amber challenges the jury’s factual determinations, we examine the record for substantial evidence to support the findings. (Donovan v. Poway Unified School Dist. (2008)
B. Attorney’s Lien
Amber contends that Little’s interference claims fail because the Martini parties’ conduct in settling the prior action did not breach Little’s retainer agreement or improperly interfere with his lien. Amber argues (1) that Little’s lien did not limit the Martini parties’ entitlement to settle the action, and (2) that the lien “evaporated” as a result of the settlement, which prevented a recovery under the fee award. Amber thus asserts that because the settlement rendered the lien valueless, Little’s interference claims are “valueless as well.” We reject this contention. As explained below, a client who creates an attorney’s lien through a fee agreement may undertake a contractual obligation not to frustrate the attorney’s recovery under the lien.
We begin by examining an attorney’s right to funds or property under a lien. As noted above (see pt. A. of the Discussion, ante), an attorney’s lien is classified as “equitable.” Generally, “[a]n equitable lien is a right to subject property not in the possession of the lienor to the payment of a debt as a charge against that property.” (Farmers Ins. Exchange v. Zerin (1997)
We mm to the client’s obligations regarding a contractual attorney lien that is linked to a contingent recovery. Although it is clear that the client’s obligation to reimburse the attorney under such a lien does not “mature[]” until “the occurrence of the agreed contingency” (Kroff v. Larson, supra,
It is undisputed that at the time of the settlement, Little had secured a judgment in favor of the Martini parties, and the court had made an award of $152,700 in attorney fees. Although Amber noticed no appeal directly from the March 2008 fee award or the amended judgment that incorporated it, nothing in the record suggests that the award was beyond a timely appeal in June 2008, when the Martini parties acknowledged satisfaction of the judgment and Amber abandoned its appeal from the December 2007 judgment.
However, no appeal was taken from the award, and the parties’ settlement did not purport to disturb it or prevent it from becoming a final judicial determination of Amber’s liabilities. In Pon v. Fremont Indemnity Co. (1990)
The same is true of the settlement here. In settling the action, the Martini parties executed acknowledgments of. satisfaction of judgment that they “ha[d] accepted payment or performance other than that specified in the judgment in full satisfaction of the judgment,” but nothing in the acknowledgments or settlement purported to vacate the award or modify its terms. As the award is now beyond appeal, it constitutes a final determination regarding Amber’s liability to the Martini parties under the fee provisions of their contracts, despite the settlement. However, because “a satisfaction of judgment is the last act and end of the proceedings,” the Martini parties’ acknowledgments terminated their right to recover the fee award made by the court. (Brochier v. Brochier (1941)
Precisely put, the question before us is whether the Martini parties breached a contractual duty to Little regarding his lien in settling the action with Amber and forfeiting their right to execute on the fee award. We find guidance on this issue from Epstein v. Abrams (1997)
This court reversed the ruling, holding that the trial court lacked jurisdiction to approve the settlement, as the validity of the attorney’s lien could be determined only in the attorney’s independent action. (Epstein, supra, 57 Cal.App.4th at pp. 1166-1167.) In the alternative, we concluded that even if the trial court had the authority to approve the settlement, it abused its discretion in doing so. (Id. at p. 1169.) We determined that the plaintiffs had acted improperly in seeking approval of the settlement despite notice of the attorney’s lien, as our Supreme Court had stated that when a contingent fee agreement creates such a lien, “ ‘ “neither the client nor the opposite party, if the latter has knowledge of the attorney’s rights . . . , can so compromise the litigated subject matter as to defeat the attorney’s rights.” ’ ” (Id. at p. 1170, italics omitted [quoting Jones v. Martin (1953)
Although the opinion in Epstein did not expressly examine the client’s contractual obligations to his attorney in connection with the settlement, it necessarily concluded that the client, like the plaintiffs, acted improperly under the fee agreement in agreeing to settle the action. As explained above (see pt. A. of the Discussion, ante), clients who execute lien-creating fee agreements give their attorneys “ ‘an equitable right,’ ” the basis of which is “ ‘the natural equity that a party should not be allowed to appropriate the whole of a judgment in his favor without paying for the services of his attorney in obtaining such judgment.’ ” (Isrin, supra, 63 Cal.2d at pp. 158-159.) Accordingly, clients who create such a right are obligated under the agreement to honor the right.
As the circumstances in Epstein closely resemble those presented here, we conclude that the Martini parties breached their fee agreement with Little in executing the acknowledgments of satisfaction of judgment related to the settlement. In each case, the fee award had been made, but was not beyond appeal when the parties tried to complete the settlement; the clients obtained funds they could have used to begin discharging their contractual duties under the lien, but they did not do so in order to effectuate the settlement; and the settlement itself effectively denied the attorney any
Beard v. Goodrich (2003)
Amber also contends that notwithstanding the fee agreement, the Martini parties had the right to settle the action in any manner they chose, even if the settlement prevented Little’s recovery under the lien. We disagree. Generally, a provision in an attorney-client fee agreement “that the client may not compromise the suit without the consent of his attorney is against public policy and void.” (Calvert v. Stoner (1948)
In Ramirez, a discharged employee hired an attorney on a contingency fee basis to represent her in an action against her former employer. (Ramirez, supra, 21 Cal.App.4th at pp. 910-911.) When the action ended with a judgment unfavorable to the employee, the attorney agreed to represent her on appeal, provided that she would accept any settlement offer of at least $150,000. (Id. at pp. 910-912.) The appellate court concluded that this limitation on the client’s authority to settle the action was valid and enforceable, as it promoted a settlement for a reasonable estimate of the value of the employee’s claims while preserving the attorney’s right to compensation, and
In view of Ramirez, the Martini parties’ fee agreement was valid and enforceable, insofar as it ensured Little his right to “any fee award made by the court” without regard to the terms on which his clients ultimately chose to settle. As explained in Cetenko, lien-creating deferred fee agreements serve important public policies, as they permit persons with meritorious claims to obtain legal representation despite their inability to pay. (Cetenko, supra,
Amber’s reliance on Hall v. Orloff (1920)
Amber contends that the jury was misinstructed regarding Little’s rights under the lien. The trial court informed the jury: “A lien in favor of an attorney does not operate to transfer any part of the client’s cause of action. It does, however, give him a lien upon any recovery. And the attorney is regarded as the true owner of the judgment [or] settlement, the extent of the fees and costs which are due to him. [f] When there exists a valid attorney’s lien, neither the attorney’s client nor the opposing counsel or opposing counsel’s clients can settle or otherwise compromise a litigated subject matter so as to defeat the attorney’s rights.” (Italics added.) Amber maintains that the italicized portions of this instruction are incorrect.
We agree that the phrase “true owner” was potentially misleading insofar as it suggested that Little’s lien gave him rights greater than those of an “ ‘equitable assignee,’ ” or rendered him “a real party in interest” in the prior action. (Isrin, supra, 63 Cal.2d at pp. 158-159, 161.) However, for the reasons explained above (see pt. B. of the Discussion, ante), the remaining italicized portion of the instruction was not erroneous under the undisputed facts of this case, including the fact that Amber had notice of Little’s lien prior to the settlement.
In any event, any error arising from the use of the phrase “true owner” was harmless. Generally, instructional error is prejudicial only if it is “reasonably probable defendant would have obtained a more favorable result in its absence. [Citations.]” (Soule v. General Motors Corp. (1994)
In our view, it is not reasonably likely that there would have been a different outcome had the phrase “true owner” been replaced by a more accurate term. The jury was asked only to determine whether the Martini parties’ conduct in settling the action breached their fee agreement with Little, and whether Amber’s conduct caused the breach or otherwise interfered with the performance of the fee agreement. As these determinations did
D. Damages
Amber challenges the award of damages to Little on several grounds. As explained below, we reject these contentions.
1. Special Verdict on Breach of Contract Damages
Amber contends the award of damages for inducing a breach of contract fails as a matter of law because the jury awarded no damages against the Martini parties for breach of the fee agreement. Amber maintains that award of damages for inducing a breach of contract cannot be reconciled with the jury’s special verdict awarding no damages for breach of contract. As explained below, Amber has forfeited this contention.
Potentially defective special verdicts are subject to “a multilayered approach.” (Zagami, Inc. v. James A. Crone, Inc. (2008)
We conclude that because the special verdict in question is no more than “merely ambiguous,” Amber forfeited its contention by failing to seek clarification from the jury before it was dismissed. (Zagami, supra,
In accordance with Little’s testimony, the special verdict form expressly directed the jury not to determine Little’s damages if the jury found that the Martini parties had breached the contract and that Amber had caused them to do so. The jury found that Amber had induced the Martini parties to breach their contract with Little, resulting in $190,684.06 in general damages and no special damages, and that Amber had interfered with the contract, resulting in no general damages and $692,307.68 in special damages. The jury further found that the Martini parties breached the contract and that Amber had caused the breach but, as instructed, left blank the space provided for an amount of damages in the special verdict form. Prior to the jury’s discharge, Amber asked the jurors to be polled with respect to certain special verdicts. However, Amber sought no clarification whether the jury, in failing to enter an amount under the special verdict regarding damages for breach of contract, intended to prevent a double recovery, rather than to find that Little suffered no damages.
Under the circumstances, the blank special verdict cannot be regarded as more than “merely ambiguous.” (Zagami, supra,
For the same reasons, we would reject Amber’s contention were we to address it on the merits. As the jury found that Little had suffered $190,684.06 in general damages because Amber had induced the Martini parties to breach their contract, the jury could not rationally have found that Little had not suffered the same damages for the Martini parties’ breach. (See OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007)
Amber suggests that the judgment in favor of the Martini parties on Little’s breach of contract claim operates as a finding that the breach of the contract caused no damages, arguing that the judgment would bar Little from reasserting his claim against the Martini parties. However, under the doctrine of collateral estoppel, a judgment constitutes a binding determination on a factual issue only when the issue was “necessarily decided.” (People v. Garcia (2006)
2. Fee-related Damages
Amber contends the damages award for inducing a breach of contract fails for want of substantial evidence regarding its knowledge of Little’s retainer agreement. As Witkin explains, to induce a breach of contract, “[t]he defendant must know of the contract, and must intend to interfere with contractual relations. [Citations.] However, the defendant’s primary purpose need not be disruption of the contract. It is sufficient if the interference is known by him or her to be a necessary consequence of his or her action. [Citations.]” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 736, pp. 1062-1063.)
Amber argues there is insufficient evidence that it knew of the fee provisions in Little’s retainer agreement when it negotiated the settlement. Little sought $190,684.06 in damages for unrecovered contract-based fees, comprising the $152,700 fee award and approximately $37,984 in unpaid
To recover damages for inducing a breach of contract, the plaintiff need not establish that the defendant had full knowledge of the contract’s terms. Comment i to Restatement Second of Torts, section 766, pages 11-12, states: “To be subject to liability [for inducing a breach of contract], the actor must have knowledge of the contract with which he is interfering and of the fact that he is interfering with the performance of the contract. Although the actor’s conduct is in fact the cause of another’s failure to perform a contract, the actor does not induce or otherwise intentionally cause that failure if he has no knowledge of the contract. But it is not necessary that the actor appreciate the legal significance of the facts giving rise to the contractual duty, at least in the case of an express contract. If he knows those facts, he is subject to liability even though he is mistaken as to their legal significance and believes that the agreement is not legally binding or has a different legal effect from what it is judicially held to have.”
Here, there is ample evidence that Amber had sufficient knowledge of Little’s contractual attorney lien when it induced the Martini parties to execute the acknowledgments of satisfaction of judgment. Pollok acknowledged that he first became aware of the lien through a letter dated March 20, 2008, from Little, which stated: “Please be advised that I have a contractual attorney’s lien . . . which entitles me to retain any attorney[] fee[] award.” (Italics added.) In addition, Martini testified that during the settlement negotiations, he shared with Post the contents of a letter dated March 19, 2008, from Little. The letter stated: “I have an agreement with [the Martini parties] by which I am entitled to 100 [percent] of any attorney[] fee[] award.”
Although there is no evidence that Amber also had specific knowledge of the deferred fee provisions of Little’s retainer argument, Amber is liable for all harm flowing from its conduct in inducing the Martini parties to breach their contractual duties regarding the lien. (Duff v. Engelberg (1965)
3. Lost Profits
Amber contends the damages award for interfering with a contract fails for want of substantial evidence regarding Little’s lost profits. Amber argues there is insufficient evidence to support a recovery for lost profits on new contracts beyond the retainer agreement with which it interfered; in addition, Amber argues that Little provided only conjectural or speculative evidence regarding the amount of the lost future profits. We reject these contentions.
In seeking lost future profits, Little presented evidence that prior to the settlement, the Martini parties consistently hired him to handle their legal matters. Little testified that they had paid him an average of $150,000 per year for the previous eight years, resulting in annual profits of $82,000. He expected his relationship with the Martini parties to continue for another 12 years (until he turned 65), resulting in lost future profits totaling $984,000. In connection with Little’s claim for interference with a contract, the jury awarded Little $692,307.68 in special damages.
Amber contends that Little’s recovery of lost profits from future contracts fails because he presented no evidence of an ongoing agreement with the Martini parties that grounded the future contracts. Amber argues that under a claim for interference with a contract, Little was entitled to recover lost profits from future contracts only if he showed the existence of an underlying contract; in the absence of such a contract, Amber maintains, Little was obliged to present evidence supporting a claim for interference with prospective economic advantage, which he did not do.
In our view, to recover lost profits from future contracts under a claim for interference with a contract, Little was not obliged to show the existence of an ongoing foundational agreement. We recognize that interference with an existing contract is analytically distinct from interference with
Nonetheless, as noted above (see pt. D.2., ante), Amber was liable for all the harm that it caused in interfering with Little’s retainer agreement with the Martini parties. Little was thus entitled to recover lost profits (if any) flowing from Amber’s misconduct. (See Elsbach v. Mulligan (1943)
Amber also contends that Little made no such showing. Noting Little’s testimony that he tried to withdraw his representation in connection with Amber’s appeal from the December 2007 judgment, Amber argues that Little ended his relationship with the Martini parties before the settlement, and that there was no evidence that they would have continued to hire Little in the absence of the settlement. We disagree.
Amber’s argument misapprehends our role as an appellate court. Review for substantial evidence is not trial de novo. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp., supra,
DISPOSITION
The judgment is affirmed. Little is awarded his costs on appeal.
Willhite, Acting P. L, and Suzukawa, 1, concurred.
A petition for a rehearing was denied January 9, 2012, and on January 17, 2012, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied April 11, 2012, S199804.
Notes
Although Frank Martini’s name is Devanand Sharma, he does business under the name ‘Frank Martini,” and the parties so refer to him. We do so as well.
Also named as defendants were Julian A. Pollok and the Law Offices of Julian A. Pollok, who represented Amber in the prior action. These defendants were dismissed from the underlying action and have not appeared on appeal.
Although Martini and the other Martini parties were named as defendants, they presented no evidence in their own defense, aside from the testimony that Martini provided in connection with Little’s case.
Little also presented testimony from Robert L. Savannah, Martini’s chauffeur, who stated that on the evening of March 24, 2008, he drove Martini to Malibu. According to Savannah, Martini left the car, entered a building, and returned with a black briefcase. When Martini looked inside the bag, he was “real joyful.”
Amber also submitted testimony from Ron Goldman, who owned the Malibu building in which Amber leased its offices. According to Goldman, Amber was not a tenant in the building on March 24, 2008.
During the trial, the court granted a nonsuit motion regarding Little’s claim for conversion, and Little later abandoned his remaining claims for equitable relief.
These torts differ in two principal ways from a third related tort, namely, intentional interference with prospective economic advantage. The former torts require an existing contract, whereas the latter presupposes only a prospective relationship. (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995)
Because the December 2007 judgment neither determined the Martini parties’ entitlement to fees nor awarded any amount of fees, the fee award was separately appealable. (DeZerega v. Meggs (2000)
The record in Epstein apparently did not disclose whether the lien relied on a contingency fee agreement or a deferred fee agreement. (Epstein, supra,
In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980 [
Little maintains that Amber forfeited this contention because it agreed to the use of the phrase “true owner” at an unreported bench conference on instructions. However, the record discloses no forfeiture, as Amber objected to the instructions on the record immediately after the bench conference and later at trial.
Amber also suggests the trial court erred in instructing the jury as follows: “When a trial court, after reaching judgment on the merits of a case, subsequently issues a separate order awarding attorney]] fees to the prevailing party, the order awarding attorney]] fees must be separately appealed to the Court of Appeal. Failure to file a separate appeal in a timely fashion from a post-judgment order awarding attorney]] fees renders the attorney]] fees final and unappealable.” Amber argues that this instruction failed to state that Amber’s appeal from the December 2007 judgment potentially (1) stayed enforcement of the fee award and (2) subjected the award to the possibility of reversal if Amber prevailed in its appeal.
We discern no reversible error. As explained above (see pt. B. of the Discussion, ante), the instruction was correct under the facts of this case; moreover, notwithstanding the contingencies to which the fee award was subject at the time of the settlement, the award was sufficiently firm to support Little’s claim that the Martini parties breached a contractual duty to him in settling the action. Accordingly, it is not reasonably likely there would have been a different outcome had the jury heard additional instructions regarding the contingencies in question.
Amber also suggests that Little is not entitled to lost future profits because he neither pleaded them as special damages in his complaint nor identified them as an item of special damages during discovery. However, Amber has forfeited these contentions, as it first objected to the defect in the complaint after the presentation of evidence at trial (Stoltz v. Converse (1946)