Viner v. Sweet

Dist., B138149. Second Div. Seven. Apr. [No. 2004.] al., MICHAEL et VINER Plaintiffs v. Respondents, al., CHARLES et A. SWEET Defendants and Appellants.

Counsel Olson, Brown, Helm, Stein, & Tolies Dennis C. Munger, Mark B. Allison B. Hawkins; Watford; Steven W. & Paul J. Kester and Charles F. Isenberg Kester for Defendants Appellants.

Christensen, Miller, Fink, Jacobs, Glaser, Glaser, &Weil Patricia L. Shapiro, Peter Sheridan and C. Mila Livitz for Plaintiffs Respondents.

1221 Opinion (Viner case v. Sweet

PERLUSS, (Sept. P. In ourinitial decision J. 19, Dec. 28, 2001, B138149) review grant [superseded by in a fact the (Viner to establish causation in I)), plaintiffs we held (S101964)] action are not opposing legal malpractice required transactional a better deal than they them in contract negotiations side and affirmed most had their not been actually attorney negligent obtained Michael award in favor of damage plaintiffs multimillion dollar the jury’s reversed, “just Court holding Viner and Deborah Raffin Viner. Supreme actions, a a transactional malpractice as in litigation malpractice plaintiff than it is more likely action show that but the alleged must malpractice, (Viner v. favorable result.” that the would have obtained more plaintiff P.3d (2003) 30 Cal.4th Cal.Rptr.2d 1046] Sweet the matter “for consistent (Viner II).) The Court remanded proceedings (Ibid.) the views here.” expressed oral after remand and heard further received

Having briefing supplemental we the trial court erred in denying from the now conclude argument parties, to the verdict as notwithstanding the defendant motion for lawyers’ judgment of of asserted them. against Accordingly, five the seven claims malpractice the award of reducing we modify judgment by and, modified, $13,291,532 $515,760 to as so affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND his firm The Charles A. Sweet and law Viners1 sued their former attorneys, W&C), & for Connolly (collectively negotiating Williams negligently Audio, in Dove for the sale their interest drafting agreements ownership (MEI) their (Dove) to and termination of Inc. Media International Equities drafted, MEI as agreements with Dove. Under the terms employment $3 for Dove stock more than Viners’ purchased significant portion million, $1.5 Dove over five were to receive million from the Viners’ to be stock was Dove’s series “E” preferred in installments. monthly years monthly on the in to the Viners if Dove defaulted held escrow for distribution to them.2 payments seven acts cause of action identified

The negligence Viners’ professional clause in (1) told the Viners nonsolicitation W&C malpractice: termination to the book and audiobook agreement only applied employment “Vee-ner,” rhyme with “wiener.” pronounce surname Viners their Dove, in efforts to sell their interest history founding subsequent of the Viners’ greater detail ultimately litigation led are described company and the events that II, supra, pages 30 Cal.4th 1235 to 1237. in Viner I and Viner business, but segments of Dove’s because the clause was Dove ambiguous, asserted in arbitration clause also successfully Dove’s encompassed television and (2) motion W&C to a picture projects; agreed negligently which violated noncompetition provision, Business and Professions Code (3) section 16600’s restrictions on such termina- provisions; employment tion agreement for fees provided an arbitration attorney enforcing award; (4) in the ambiguous language credit provision relating producer caused Dove not give Deborah Baffin Viner (5) credit as producer; virtue of the release in the general language employment termination agree- ment, the Viners lost their to accrued rights dividends on Dove’s series “A” stock; (6) the preferred termination did not employment agreement contain indemnity same level of provision providing the Viners had protection in their employment the series “E” agreement; stock preferred afforded to the Viners if Dove defaulted inadequate security monthly due under the termination payments agreement. employment trial, Following four-week returned a verdict in favor special the Viners on each of the seven claims of negligence, awarding $13,291,532 total of trial damages. The court denied W&C’s motion judgment the verdict in notwithstanding which W&C other argued (among asserted) the grounds failed causal connec- requisite tion between W&C’s conduct and negligent the damages allegedly resulting from that negligence.

W&C five the seven appealed judgment, arguing respect claims for evidence, the Viners negligence failed substantial present do, were a to that better result required would have been obtained absent W&C’s claimed even negligence. if such had been Alternatively, proof W&C a new trial presented, argued would because the trial court required failed to instruct the on the of causation a properly necessary in proof is, legal action—that that the Viners were to malpractice demonstrate required that of their matter W&C would have resulted in a proper handling by more favorable outcome.3 modified,

We affirmed the as that the judgment holding Viners were not to would have obtained a more required prove they favorable result in the court special Negligence— trial refused W&C’s No. instruction “Professional Causation,” provided, which “In attorney negligence order from an in recover for plaintiff agreement transactional work where the is an complaining that actual term of the is it, that, plaintiff would plaintiff attorney’s have wanted but the must establish for negligence, plaintiff in fact obtaining would have been successful either in the desired in term Thus, agreement having in omitted agreement. plaintiff offensive term from the a plaintiff cannot establish ‘but for’ causation event could have obtained a more favorable term or could obtained deletion of an unfavorable term.” Jury “Damages Negligent Judicial Council of California Civil No. for Instruction Matter,” Handling Legal provides succinctly accurately, somewhat more and more “To what we W&C had not been negligent. Applying transaction with MEI if held the and causation we as “ordinary negligence principles,” described awas that W&C’s finding negligence at trial the jury’s evidence supported or diminution their the Viners suffer loss causing substantial factor claimed items to each of seven separate and remedies with rights respect **4 $8,065,732 of award.* damage and affirmed the jury’s mal practice review, limited issue “whether Court granted Supreme a more action must legal prove a transactional malpractice plaintiff but for the alleged negligence.” favorable result would have obtained (Viner II, 1238-1239, omitted.) at italics The Court Cal.4th supra, pp. here held “The Court of that “yes”: Appeal plaintiff answered question need not show that the harm for transactional suing attorney malpractice We not have occurred in the absence of attorney’s negligence. We see distinctive about transactional disagree. nothing malpractice from, of, or the well-established a relaxation require- justify departure establish causation by showing ment cases that in negligence plaintiff occurred, (2) the harm would not have either negligence, for II, (Viner cause of the harm.” supra, was concurrent negligence independent 1240-1241.) The court “In both litigation 30 Cal.4th at explained, pp. cases, the causation is what would transactional crucial malpractice inquiry This so if the defendant had not been happened attorney negligent. involves historical because idea of causation very necessarily comparing 1242.) at The court (Id. events to alternative. hypothetical p. [Citations.]” our reversed returned case us further judgment proceedings 1244.) its (Id. consistent with opinion. p.

CONTENTIONS the standard of causation in fact in transactional for proof Applying II, Viner contends case confirmed Court in W&C Supreme substantial of causation as to five Viners failed present and, claims had a full and fair because the Viners seven for malpractice trial, to the their case the matter should be remanded opportunity final for the Viners trial court with directions to enter judgment Viners, hand, contend they claims other remaining only. two II as to all seven of their standard articulated in Viner satisfied causation defendant], plaintiff] prove must that [he/she/it] [name recover [name of reasonably a careful acted as obtained a result had [name better defendant] attorney.” 4 jury’s respect to “nonsolicita did not award We concluded Forsyth and print project a with Frederick damages” attributable to and audiobook tion clause Higgins, damages” projects to with Jack attributable two audiobook “noncompetition clause $5,205,800. value of which had combined 1224 was, essence,

claims and harmless error trial court to refuse to instruct the were jury but for they required prove causation.

DISCUSSION 1. The Trial Court’s Omission Causation Appropriate Instruction Was Fundamental Error That in All Probability Affected Verdictin Favor Jury’s Viners In remand, briefs and supplemental oral after argument assert substantial evidence they presented would have obtained a they more favorable result but for W&C’s and W&C was by prejudiced the trial court’s refusal to correctly instruct on their need Proc., 475;5 (Code for causation. Civ. Soule v. General Motors § Corp. 8 Cal.4th 882 P.2d is no Cal.Rptr.2d 298] [“there rule of automatic reversal or ‘inherent’ prejudice applicable any category error, of civil instructional whether of commission or omission. A judgment ‘unless, may be reversed for instructional error in civil case after an cause, evidence, examination of the entire including court shall be of that the error opinion of has resulted complained miscarriage Const., VI, (Cal. art. 13.)”].) justice.’ us Accordingly, urge § to affirm the they entire in their favor on the record judgment now before the court without remand for further proceedings.

To the Viners’ we would position, have conclude both that accept substantial evidence causation in fact and presented absence of harmless causation instruction was We proper error. on both disagree counts. With to all claims other than respect damage those relating producer credit and series “E” stock as to which preferred security, W&C has trial,6 conceded sufficient evidence of but for was causation introduced at that, failed substantial evidence if W&C had not present been it is more than negligent, obtained a likely more favorable result either by from the transaction with MEI walking away or by better terms in the stock or securing termination purchase employment Indeed, the evidence before the agreement. directly contrary, decision, provides part, judgment, Code of Civil Procedure “No section or decree error, instruction, defect, by ruling, shall reversed or affected reason of or unless it shall error, instruction, appear ruling, from the record that such or prejudicial, defect was and also error, instruction, defect, ruling, reason of such party complaining or the said appealing sustained and suffered injury, substantial and that different result error, instruction, probable ruling, if such defect not occurred or existed. There shall be presumption prejudicial, injury no that error is or that done if error is shown.” 6 $515,760 damages The awarded the Viners a total of in for those two claims.

1225 stance, not W&C’s been) (or MEI’s negotiating it was indicating ask, contract terms. to the unfavorable that led failing in negligence the nonsolicitation concerning testified Lightstone, MEI’s Ronald principal, business future to interfere with Dove’s he did not the Viners clause that want clause nonsolicitation and that the broadest possible its authors by contacting from MEI’s standpoint. of the transaction an essential element was therefore was an extremely clause testified that the noncompetition further Lightstone own expert Viners’ not have given up, position term would important throughout negotiations. position was consistent with MEI’s agreed for the unlimited indemnity not have agreed testified he would Lightstone claim, fees Viners, attorney and that broader for their damage basis deals. negotiating his usual was inconsistent with approach provision increase basic MEI was unwilling said Finally, Lightstone simply (which both included of to the Viners economic value the transaction under employment their stock monthly payments payment therefore, the Viners MEI would not permitted termination agreement); stock dividends. retain their to series “A” rights evidence assess the unrefuted When evaluating essentially affected the court’s instructional error likelihood that trial prejudicially (Galvez verdict, W&C, Viners. v. we in favor of view evidence 1410, 50]; Logacz v. Frields (2001) Cal.Rptr.2d 88 1413 Cal.App.4th [107 1152, 257].) Limansky (1999) 71 fn. 2 Cal.Rptr.2d Cal.App.4th [84 and, if must assume have believed jury might [W&C’s] “[W]e instructed, decided in favor. might [W& C’s] [Citations.]” properly Ins. (Shell Oil Co. v. Winterthur Swiss Co. (1993) Cal.App.4th in this light, the evidence at trial viewed 815].) When Cal.Rptr.2d damages,7 causation and with the court’s other instructions on together trial 6.00, elements jury, BAJI No. “The essential The trial court instructed the consistent with by a preponderance must negligence, plaintiffs each of which professional of claim for negligent; evidence, (2) negligence of the of are: The defendants were [ffl [f] damage, instructed The court then plaintiffs caused to suffer loss harm.” defendants 3.76, cause particular way. A of according to No. “The defines cause its own BAJI law damage, bringing about loss something damage, [] loss or harm is that is substantial factor Viners, “If, 14.00, requested by explained, court Modifying or harm.” BAJI No. instructions, against you entitled to verdict plaintiffs under the court’s find are defendants, reasonably you damages an amount that will plaintiffs must award then reduced, you subject being have been damage compensate for each element of claimed instructed, you you contributorily negligent, provided find plaintiffs if were should find by upon act or omission by plaintiffs and was caused that such harm or loss was suffered Finally, request at the finding liability.” explained the trial court also you your which base recovery Viners, will not be denied damaged the acts another party “An innocent only requires law damage is proof not available. precise because amount simply used, computed so even allow computation will that some reasonable basis approximation.” reached is the result 1226

and counsels’ it arguments,8 is at the least that the “reasonably probable” verdict was jury’s affected the by omission of “more favorable result” $13,291,532 instruction and that it would not have the awarded (Soule if it had instructed. v. General properly Corp., Motors 8 Cal.4th & supra, 580-581 fn. 11 in a pp. error civil case [“Instructional is ‘where prejudicial it seems that the error affected probable’ ‘prejudicially Inc, accord, Owens-Illinois, [Citations.]”]; the verdict.’ (1997) v. Rutherford 953, 16, 16 Cal.4th 1203]; 983 941 P.2d v. Cal.Rptr.2d Logacz Limansky, [67 71 supra, 1156.) Cal.App.4th p.

2. The Trial Court Erred in Denying W&C’s Motion Judgment for the Verdictas to Five the Notwithstanding Viners’ Seven Claims of Malpractice; Be Judgment Should Entered as Those Portion of if the Motion Had Been Granted of W&C asserts the court trial erred in its motion for denying judgment verdict, notwithstanding all arguing respect damage claims other than those and relating credit series producer “E” stock preferred security, the Viners failed to sufficient evidence present of causation in fact to support verdict, the jury’s even the evidence in the most viewing favorable light (Hauter 104, Viners. (1975) v. 14 Zogarts Cal.3d 110 Cal.Rptr. [120 681, 534 P.2d ‘A motion for judgment notwithstanding 377] [“ verdict be evidence, it may from the properly granted only viewed appears in the verdict, most light that there no party securing substantial evidence to the verdict. If there is support substantial evi any dence, therefrom, or reasonable inferences to be drawn verdict, the [Citation.]”; motion should denied.’ see Henrioulle v. Marin Ventures, 512, (1978) 247, Inc. 20 Cal.3d 515 573 P.2d Cal.Rptr. [143 465] court in reviewing trial court’s [appellate grant denial of motion for judgment verdict uses same notwithstanding standard review as employed motion].) the trial court in by We As to deciding agree: W&C’s nonsolicitation, regarding scope noncompetition clauses the absence for indemnity fees and for provisions attorney dividends, retention of their to series “A” rights stock the Viners no presented all, otherwise, that, evidence at substantial or indicating but W&C’s more negligence, likely than not would have obtained a more favorable result in their negotiations with MEI. verdict, In assessing “[tjthe prejudicially the likelihood that instructional error affected the reviewing court should consider not ... nature error likelihood of [also] record, prejudice ‘(1) actual taking as reflected in the individual trial into account the state of evidence, instructions, (2) (3) arguments, (4) the effect of other effect counsel’s Owens-Illinois, (Rutherford v. indications that it itself was misled.’ [Citation.]”

Inc. 1203]; Soule 16 Cal.4th v. General Motors Cal.Rptr.2d 941 P.2d supra, Corp., 580-581.) 8 Cal.4th at pp. for motion that court erred in W&C’s denying

It follows the trial the avoid the subjecting parties verdict. To notwithstanding judgment if the as W&C’s motion judgment and we will delay modify further expense, evidentiary lacking as to the five claims damage had been granted Proc., the Civ. 629 (Code so modified. the as judgment § [“If and affirm denied and if a new the verdict be notwithstanding motion for judgment denied, shall, that the motion for when it court appears trial be the appellate order verdict should have been granted, judg the notwithstanding judgment v. .”]; Sagadin Ripper . . so entered on from the judgment. ment appeal v. Bank America 675]; (1985) 1170 Cal.Rptr. 175 Cal.App.3d [221 613, 624 Court (1990) 220 Cal.App.3d Superior Cal.Rptr. [269 596] [“The the for insufficiency of section is that a reversal effect 629 appeal concluded if the as it would have been evidence concludes litigation just verdict.”].) notwithstanding trial court had entered correctly judgment Result a. There Is No Substantial Evidence a More Favorable Under a “No Deal” Scenario true, insist, in the there is substantial evidence record

It the Viners been the transaction if had not would have walked they away they film their contacts in assured of their to work with business ability is, if had television after Dove—that known leaving they production projects (§ 1.10) agreement the nonsolicitation clause in the termination employment had not been and drafted in accordance with their directions negotiated they W&C. But Viners failed to evidence to present is, (that if have been better off under “no deal” scenario economically Dove) than remained owners they key principal employees deal were in fact under the terms of the they actually completed.9 Certain claimed are nonexistent Viners types by simply under “no deal” Without termination agree- scenario. employment ment, indemnification unchanged; the Viners’ remained rights issue; no nor credits would be neither series “A” stock dividends producer been with MEI would have for under security agreements payments fees, for and therefore no need and there would be no given; attorney fees, those in connection with arbitration to enforce reimbursement of and MEI. between Viners agreements nonsolicitation two author-reader damage categories—the

As largest issue—the Viners’ issue and audiobook noncompetition 9 ways may colleague acknowledges, the various in which the dissenting As our away transaction were not advanced financially had walked from the been better off opn. post, Viners, (Dis. theory jury.” by submit deal who “elected a no trial 1246.) p.

1228 injury damages on the would have premised assumption they own, various on their projects pursued

undertaken Dove. ifYet had not by terminated their employment, the various described projects witness in her by damage expert analysis itself, would have been Dove corporate opportunities properly exploited (See not the Viners (1967) v. Price personally. Thompson Cal.App.2d ‘ 182, “a Cal.Rptr. officer or director corporate may seize 174] [“ himself the detriment of his business in the company opportunities line of activities which the has company’s an interest and company prior ’ ”]; Ranch, claim to obtain” Point Inc. Pigeon v. Perot Cal.2d 865, 233 379 P.2d law does not allow director Cal.Rptr. [28 321] [“[T]he [a to secure any personal advantage as against officer] corporation.”], 888, overruled on (1992) other Kowis v. grounds Howard 3 Cal.4th by 728, 250]; 899-900 P.2d Cal.Rptr.2d 838 Heckmann v. Ahmanson [12 119, 177].) 126-127 Cal.App.3d Cal.Rptr. record is devoid benefit to the quantifying any Viners increased through compensa tion or enhanced stock value those have corporate would projects generated aborted, the transaction with MEI had been nor is there basis for the any to those benefits to the compare projected value received actually (which Viners from the deal $3 as structured included million for sale of stock, $1 as well as more than million in under the payments employ ment agreement).10 termination

b. Mere W&C’s Not WitnessesDoes Constitute Disbelief Substantial Evidence the Could Have Obtained a More

Favorable Result Court in Viner II in a Supreme confirmed causation transactional that, need not be malpractice with absolute proved certainty “[i]n cases, cases, transactional as in other use malpractice plaintiff may circumstantial evidence to his or An satisfy her burden. concession by express the other to the negotiation that parties other additional is not (Viner terms at necessary.” 30 Cal.4th supra, 1242-1243.) pp. noted,

As W&C concedes substantial evidence previously supports Viners’ claim more favorable contract to credit provisions relating producer “E” and series could have been obtained but for security W&C’s negligence. However, neither direct nor circumstantial evidence exists in this record that an inference Viners could have obtained deal reasonably better supports walking away In to prove accepting order from the MEI deal than rather (and actually negligently) negotiated by transaction as yielded W&C would have a more result, the Viners would also had to respond the evidence Dove’s actual radically during financial situation period. deteriorated the relevant time Indeed, at in the brief they contract issue. on the five provisions I, what “it is in Viner prove acknowledged impossible submitted might agreed during negotiations the other side observ- We agreed, to raise certain issues.” enough known plaintiff’s lawyer were contend respondents at the of our legal analysis, outset ing “Appellants not, to, them a ‘better deal’ would have given but did prove required [MEI] did, it is respond- Because negligence. undisputed than it but for appellants’ have done so on the specific ents did not prove attempt [MEI] action, reversal required. contend contract terms issue appellants not, hand, of this were on the facts other contend they Respondents, case, have been able absent W&C’s negligence, required us, before we deal with Based on facts obtain a more favorable [MEI]. established causation and hold adequately with respondents respondents agree II, I, omitted; (Viner fn. see Viner 30 Cal.4th supra, supra, at trial.” p. 1238.) at p. would not have that MEI acknowledging testimony

While Lightstone’s five items is damage to more favorable terms on disputed agreed uncontradicted, was free not find our observes dissenting colleague be, True that disbelief of Lightstone’s denials credible. Lightstone’s may does of contrary not constitute affirmative evidence testimony proposit Inc. v. Globe Ins. Co. (1985) (California Royal 175 Shoppers, ion.11 instance, 1, testifies, that 48 a witness for Cal.App.3d Cal.Rptr. [221 171] [“If collision, it not that raining was and if the disbelieves jury at time that it at raining testimony, such disbelief does evidence provide Hicks v. Reis collision.”]; P.2d of the 21 Cal.2d time a testimony, of fact refuses to credence to witness’s give finder 788] [if “ if It ‘is of no more effect than it had not testimony given. . .’ Hand more ”].) from the case . . As Learned Judge explained disappears behavior, manner a “It true that the half-century carriage, bearing, than is ago, short, of the a witness—in his ‘demeanor’—is part appearance on in rely making The words used are no means all that we by up evidence. affairs, and truth a that arises in our ordinary our minds about the question . . as we are. . it settled that a is as little confined them jury is abundantly tribunal, that the witness’ testimony evidence may satisfy [S]uch one, true, denial of of his story; is not but that the truth is opposite discomfort, hesitation, be uttered with such deny, may who has a motive that, defiance, if that he fabricating, as to assurance is give arrogance could not Lightstone’s testimony, may it have believed he not accept Even if the did because, as Justice might agreed to favorable terms or not MEI more know whether necessarily events. This common sense negotiations fluid explains, contract are Johnson bivalence contingencies principle are contradicts future unknowable conclusion that post, (See opn., dis. logic presented in the dissent. symbolic truth tables assumed 2.) p. fn. denies, is, he there is no alternative to assume the truth what he [f] Nevertheless, it although is therefore true that in strict a theory having party the affirmative succeed in might truth of his convincing allegations them, of the fact that all witnesses denied we it spite think that such a verdict would nevertheless have to be directed plain against him. is This to the fact that owing otherwise in such cases there could be He, effective evidence, .... has who seen and heard the appeal ‘demeanor’ have been may it right wrong that thinking gave rational to a support verdict; since that yet, evidence has it will for an disappeared, impossible (Dyer v. court to he say 1952) which was.” MacDougall appellate (2d Cir. 265, 268-269.) 201 F.2d 437c,

The dissent’s reliance on Code of Civil Procedure section (e), subdivision a state-of-mind justify general this is exception principle flawed. fundamentally (e) Subdivision “If a is otherwise provides, party section, entitled to summary judgment pursuant summary judgment may not be denied on . . . grounds credibility except summary court, be denied judgment may in the discretion of the . . . where material mind, thereof, is fact an individual’s state of or lack and that fact is sought be established the individual’s solely by affirmation thereof.” This subdivi sion of the summary law does not stand for the judgment proposition disbelief is of witness sufficient to an inference the witness’s true was, state of mind was different from what or she said dissent Rather, it. when the moving is party required witness’s state of mind to on summary and the prevail judgment only evidence individual, from that presented testimony Code of Civil Procedure section 437c, (e) subdivision authorizes trial court to simply deny motion as no (See all had been as to that element. presented required Code Proc., 437c, (o) Civ. subd. entitled to summary § either judgment [defendant that one or more of the the by demonstrating elements of cause of action cannot be established or separately an affirmative to by establishing defense Indeed, action].) that cause of the court the trial has same discretion to deny “where summary the of a judgment material fact offered proof is an summary judgment affidavit declaration made an individual by Proc., 437c, who was the sole (Code witness to that fact . . . .” Civ. § (e).) subd. 437c,

Denial of under Civil Procedure section summary judgment mean, (e) subdivision does as the dissent a suggests, triable issue of exists, fact which would thereafter the to find in favor of either permit jury side, but only that there is an absence of credible evidence needed the by v. (See to Navegar, Merrill Inc. moving on party summary prevail judgment. 465, (2001) 370, 116]; 26 Cal.4th 476-477 28 P.3d Cal.Rptr.2d [110 v. Atlantic Co. 826, Aguilar (2001) 25 Cal.4th 854—855 [107 Richfield 841, 493].) P.3d 24 Cal.Rptr.2d Phrased somewhat disbelief differently,

1231 denial state of mind of moving affirmative evidence a witness’s permits is of no motion because it summary equivalent defendant’s judgment evidence, however, trial, at At disbelief of affirmative which all. all, evidence at entry judgment is the of no again requires equivalent issue—here the Viners.12 with burden of On that against party proof Prove Their Case c. The Viners Had a Full and Fair To Opportunity at Trial the need for a on the the trial

The dissent further remand posits possibility to instruct on but for causation also “may court’s failure properly Viners, have influenced the evidence particularly parties, produced us to But there is no basis in record before conclude the trial.” simply were astray unnecessary somehow led own insistence by obtained a more result if W&C had not they would have prove and, therefore, failed to the best evidence available to been marshal negligent them.13 II,

First, Viner this at the time of the trial of matter discussed in on Court had held that instructions causation in Supreme unequivocally cases should use the “substantial factor” test articulated in the negligence Restatement Second of Torts had further ‘the “substan- “recognized (Viner II, supra, tial factor” test subsumes the “but for” test.’ 30 [Citation.]” sufficiency attempt analogize of the causation evidence The dissent's the issue evaluating presented by very by question the Viners different confronted courts by guilty plea allegedly effort vacate a because he or she was misled criminal defendant’s situation, misplaced. guilty plea is In the assertion he she would not counsel defendant’s given pleaded guilty appropriate independently have if advice “must be corroborated 924, 713, (In (1992) objective Cal.Rptr.2d re 830 P.2d evidence.” 2 Cal.4th 938 [8 Alvenaz 747]; 1171].) Cal.Rptr.2d In re 25 Cal.4th 19 P.3d Resendiz guilty plea on produce The burden is thus the defendant to affirmative evidence rejected competent legal if in addition to the defendant’s o\Vn have been advice had (Indeed, testimony her mind. claim of she would about his or state of the defendant’s disbelieved, deny rejected necessary in plea inquiry no further is order question, in these request plea.) why, to vacate the That is to answer Justice Johnson’s (who plaintiffs burden civil have the burden properly impose circumstances we different actions) (who, in legal malpractice prosecutors than We do on criminal proof anything all). particular setting, produce no burden that, agree favorable result would attempting Justice Johnson more We attorney negligence, plaintiff in the of a transactional have been obtained absence he proving to or she could have obtained the exact deal malpractice case is not limited obtained, damages by thought may but establish causation and she wanted and had been However, negligence. negotiated attorney for proving a “net” deal have been but better any possible—the they deal deal presented case the no evidence better was in this with MEI economically preferable transaction either or a but nonetheless wanted different notwithstanding having and a full fair entity—and prove to their case some other thus failed notwithstanding the verdict Accordingly, judgment to motion for do so. W&C’s opportunity against asserted it. malpractice five granted disputed have been as to the claims of should

1232 Thus, 1239.) Cal.4th at even if no decision p. had published appellate held expressly for plaintiff suing lawyer transactional was malpractice a more required favorable result would have prove been obtained absent lawyer’s negligence, of causation in requirement for proof legal case was relatively (and settled at time of trial remained Foods, so until I). (See our decision in v. Viner Cassista Community Inc. 1050, 287, (1993) 5 1143], Cal.4th 1055 856 P.2d Cal.Rptr.2d superseded [22 statute on unrelated by as a grounds [holding weight may qualify disability under the FEHA if it from a only results condition and physiological denying retrial to who failed facie case plaintiff prove though even no prima prior California decision had articulated this requirement].)

Second, there no in the record the court ruled on suggestion evidence; causation issue to the and close prior Viners were plainly notice of the potential to but for importance relating causation from the outset trial. How causation could be was addressed not proved only dueling also instructions but in a motion for proposed jury directed verdict filed W&C close of evidence. The prior Viners’ inability but for causation also the focus of much of W&C’s evidentiary presentation closing argument. in their

Finally, briefs remand supplemental following Supreme Court, the Viners have not did not their argued they present strongest possible case on causation and because of the trial court’s decision refuse W&C’s 2 instruction No. on but for causation and special to instruct the jury instead in accordance instructions had To the proposed. W&C, like that the contrary, “whether the Viners have they urge question ‘but for’ causation” “can and proven should be answered on the record now Court, before without a retrial all or of this any part case.” case, a full are Having not now opportunity try entitled to a remand and trial new because the evidence fails to verdict. jury’s has had full and fair plaintiff opportunity “[W]hen case, her his or a reversal of a for the present based on judgment plaintiff most, of the evidence should in the insufficiency place parties, position were in after all the evidence was in both sides had rested. A entered, for the defendant then be judgment a new trial permitted newly (1991) discovered evidence.” v. Hearst 227 (McCoy Corp. accord, 596]; 1661 Cal.App.3d Maryland Cal.Rptr. [278 California Inc. v. Lowe 37 Funding, Cal.App.4th Cal.Rptr.2d Foods, Inc., 784]; 1066; Cassista v. 5 Cal.4th at see Community supra, p. Court, Bank v. America Superior supra, Cal.App.3d p. [“the entry the verdict must judgment notwithstanding ordinarily predicated on the that the whom the motion is made has assumption against party reversal rule case ... the unqualified the strongest possible presented a for in a case where motion has no application retrial on [permitting remand] court, was made and denied trial the verdict notwithstanding judgment of the evi- the judgment insufficiency and the court reverses for appellate dence.”].)

DISPOSITION award of reducing The is modified by judgment modified, $13,291,532 $515,760. affirmed. As is Appel- so judgment are to recover costs A. Sweet and Williams & Connolly lants Charles Court, (Cal. 27(a)(3).) Rules rule appeal.

Woods, J., concurred.

JOHNSON, dissent. I respectfully J. to consider

In this case California Court review granted Supreme cases legal issue whether in transactional legal malpractice pure plaintiffs result but for their must would have obtained more favorable prove they Court’s decided such a finding lawyers’ malpractice. Supreme opinion was and reversed this court’s decision affirming judgment against required then accused and his firm. Our court remanded high lawyer this consistent with its the matter to court further opinion. proceedings instructions, feasible nor Consistent with these I conclude it is neither just to a cause for a retrial resolve this without offering opportunity properly conditions in this instructed under jury specified opinion. the evidence the first

My colleagues by finding deny opportunity element, which"was trial insufficient “more favorable result” at the first trial. then second majority at issue under instructions at a retrial where would hear argument what evidence guesses jury it well. concludes would insufficient instruction given, at the first I on both I first conclude the evidence introduced differ counts. trial for the had the trial sufficient to sustain verdict and that returned the “more favorable result” instruction judge given However, does not outright this conclusion such verdict. affirmance, of certainty determined with any degree because it cannot be same verdict had heard would have reached that whether fact a remand for a retrial possible instruction. But does fully justify missing new, I conclude retrial Secondly, before a instructed jury. properly afford both reason—to for an alternate sufficient independent justified Viners, and the chance to introduce parties, particularly additional theo- ries, evidence, arguments on the “more favorable result” element bearing action—theories, evidence, of this legal inalpractice arguments case necessary when the went to the with a “substantial factor” jury instruc- tion.

I. SUFFICIENT EVIDENCE EXISTED SUPPORT TO

A FAVOR VERDICT IN OF THE VINERS JURY THE

HAD TRIAL COURT GIVEN A “MORE FAVORABLE RESULT” INSTRUCTION AS REQUESTED,

APPELLANTS The first there was insufficient evidence majority opinion argues in the record of the first trial to the Viners could support jury finding obtained more favorable result had Sweet committed This malpractice. relies on what entirely W&C characterized at trial as position Lightstone’s “uncontroverted” MEI would not have testimony more favor- able the Vinets than those that in the contract appear signed. majority with W&C in failed to opinion agrees finding introduce affirmative evidence disputing Lightstone thus concludes testimony verdict, there Was insufficient evidence to had the jury jury instructed. properly

In how could have or assessing jury might have decided a case had it deliver, received an instruction the trial failed to court court appellate in a necessarily engages hypothetical becomes inquiry. inquiry doubly when instruction itself would direct the hypothetical missing embark on a into mind of a witness and what that speculative journey key Witness would or have decided if the other side had insisted. view,

In my starts with certain hypothetical inquiry proper assumptions. First, We must assume the jury received “more favorable result” proper Second, assume, instruction, we instruction. must heard that having made all the and inferences credibility judgments Viners on that favoring result, and found could issue have obtained a more thus Then, a verdict the Viners. returning those we ask accepting assumptions, whether we would affirm verdict—or reverse on the basis of hypothetical of the evidence. insufficiency A Jury To Evidence Was Available Support

A. Substantial More Favorable Have Obtained A The Viners Could Finding Had The But For Malpractice Deal Sweet’s Lightstone From Given. Instruction Been Proper an evaluation about the and its the key Among assumptions disbelieved all or this case is that court in properly accepts appellate to assume the it is testimony. much of In Lightstone’s particular, appropriate down terms he would have turned any claim Lightstone’s jurors rejected on terms or insisted had Sweet tendered such more favorable the Viners out, As it turns as one or all five of the contract provisions. them disputed case the had certainly this is not at all unreasonable. In this assumption he would rigid reasons to doubt the of credibility Lightstone’s position ample contract not have an inch on of the five any provisions.1 disputed be easier if the jury’s would an case Undoubtedly, respondents he would denying assumed and disbelief of probable Lightstone’s testimony more to the Viners in the absence any have terms favorable accepted a “more Sweet’s would be sufficient in itself jury’s law is or favorable result” Whether one believes the life of the finding. logic both there be reason to Certainly would experience adopt position. of a formal and common a disbelief witness’s suggest logic experience jury’s he “would not” do should constitute evidence something support- testimony an he do this case that inference “would” ing something—in Lightstone would more Viners than those embodied in the contract they signed. demeanor, jurors’ Lightstone’s appraisal beyond These reasons went reactions to an far necessarily part them unknowable based factors not of the written record which make Judge inferring the thus the Hand’s about “truth is source much of Learned concern ante, testimony. Dyer v. opposite” (Maj. opn., p. quoting witness’s (2d 1952) 268-269.)

MacDougall Cir. 201 F.2d Lightstone against strongly Here was biased supporting the record reflects facts inferences negotiating biased in other side of the table the Viners and favor of Sweet. He had on the room) (or the arbitration from the Viners and later on the other side of courtroom least sense, very was adverse disputes arising from the contract. So a real he from them in Viners, testimony provide a against and thus with motive to personal witness with animus testimony ways helpful Conversely, he a motive to shade his that would harm them. also had clients, all, malpractice as to Sweet’s very negotiating behavior found to be to Sweet. After proved Lightstone’s own interests. had most beneficial to addition, testifying self-serving would Lightstone business motive for he personal In terms, produces public is a forum accept disputed even he would have. A trial undoubtedly fully aware he would Lightstone active arid public record. is an businessman Thus, convey an impression a motive to negotiating similar in the future. he had contracts message give to send a negotiator to these terms in order tough he is a and will not as contract dealings may to others whom he future. with states, rules of where are two

Beginning logic, there possible such either “would not” “would” Lightstone or have acceded to terms Viners, more favorable to find “untrue” the he statement “would not” this, do is to find so “true” the statement he do “would” so.2 In theory with common logic squares When or other experience. juror person “I X,” don’t believe Joe he says, when he wouldn’t have done more says are, often than not the next out of words mouth “I’m sure person’s would have.”

The California legislature likewise about witness’s statement recognizes mind, his own state such what he past present do, Thus, law, have decided to is in a special category. summary judgment Code Civil Procedure 437c section provides judgment may “summary be denied on of . . . that grounds credibility except summary judgment may court, be denied in the discretion . . of . where a is material fact an mind, individual’s state thereof, to be lack and that fact is sought of established by the individual’s Thus, solely thereof.”3 in this affirmation 2 Because it Lightstone cannot be case both and accept would would not a term contract Viners, more favorable to the “negation” one statement is considered other. One text true, false, logic explains on principle ways: p is is not-p p several “When is when false, true, not-p negation is true. isp p p, If then the of be false. is the must If it case that then true, p something it-is-not-the case that must be false. opposite If is then the of that must truth Shand, (Routledge 2000) 64.) be Arguing false.” Well page provides This same author example of a truth for such a pair table statements:

Shand, Well, 64; also, Fisher, Arguing supra, at page Logic Arguments see of Real Press, 2000)

(Cambridge page Univ. 146. Lightstone The truth table for statements accept would terms to the Lightstone accept presented would terms favorable to is below: Accordingly, testimony jury Lightstone’s if the found he would accepted untrue, inescapable more favorable to the Viners than in the appeared contract finding Lightstone is inference that it is it true those more favorable terms. 3 437c, (e), Code of Civil Procedure section subdivision italics added.

1237 circumstance,4 to doubt the witness’s a the discretion trial has judge special state as to and allow a to decide witness’s his state mind testimony jury claims, no evidence is he even other though of mind what opposite once the issue is This leads to the question: available that question.5 make additional affirmative suddenly before a does it sense jury, require mind, evaluation about own state of jury’s evidence the witness’s beyond of mind?6 about that state testimony his personal mind, is, testimony about state of that what he would or A witness’s his own occasion, given presents special, unique readily case. It is have decided do on indeed events, distinguishable testimony reciting from a witness’s his observations external holding jury’s says an opinion described in disbelief of what a witness cannot testifies, instance, raining opposite happened. it the time of “If a witness that was not collision, testimony, does not provide disbelieves that such disbelief raining (California Shoppers, Royal Inc. v. Globe Ins. that it was at the time the collision.” 171].) Cal.Rptr. Applied to a witness’s observations of Cal.App.3d Co facts, ordinary raining external such as it was at a time or whether the traffic whether certain moment, light green Shoppers was red at a certain critical statement satisfies California logic. testimony what at a rules of When a disbelieves witness’s about he saw certain moment, place they merely disbelieving says he what he saw. and in are saw That mean, logic, opposite it happen. does not as a matter didn’t So it isn’t evidence way, occurred. of “X” put present event To it another does not the sort versus “Non-X” (See dichotomy up testimony set by a witness’s his own internal state of mind. discussion 2, ante.) in fn. section, judge’s testimony this code a of a Under trial disbelief witness’s uncontradicted concerning enough his is to state of mind create a “triable issue” about that claimed state of issue,” moreover, qualify a plaintiff’s ffiind. To as “triable the evidence must be sufficient to jury finding (See, e.g., a support Aguilar favorable on that issue. v. Atlantic Co. Richfield Cal.Rptr.2d [summary judgment 25 Cal.4th 861-862 24 P.3d 493] justified grounds plaintiff did not a produce defendants on evidence sufficient to create “triable question conspired, oil did companies “[plaintiff] issue” on of whether defendant because likely present jury conspiracy evidence would a to find a more than that allow reasonable .”]) not. . . Thus, 437c, (e) subdivision court’s creates a “triable issue” it provides when trial disbelief suggests testimony support to strongly disbelief of the would be sufficient itself witness’s finding the state of is different from What he verdict consistent with witness’s mind when, here, only possible is so as are two states of mind—as especially claims. This there diametrically opposed logician’s either have been Lightstone as the “X” and “non-X.” willing to willing accept to terms more to the or he would not have been do so, what. no matter majority argues the he has opinion judge’s the disbelief of sole witness’s “affirmation” merely that Because is no evidence on the issue certain state mind erases evidence. there Thus, according to summary judgment stage goes jury. at case to this the the forward the testimony argument, not create a judge’s the disbelief of the witness’s state of mind does ante, (Maj. opn., the mind to his “affirmation.” opposite triable issue witness has state of 437c, 1230-1231.) (e) pp. ignores is not to situations But mis the fact subdivision limited moving erasing sole on a party party’s has the burden and hence evidence vital where summary judgment. provision applies its This also where the “material fact” is an issue defeats judge’s plaintiff's of me disbelief essential element of the case where in absence supporting is no that element. state of mind evidence mere evidence whatsoever witness’s to apply plaintiff also court convinced me will unable Moreover it even were trial I find this unnecessary answer however. A question, finding evidence sufficient to find the Viners would have a “more favorable gained result” need not on (and assumed disbelief of depend jury’s likely) he Lightstone’s would not have terms iota testimony an more accepted to the than generous what contract It is appeared signed. enough this accept majority view disbelief means opinion’s “ ‘ “is Lightstone’s of no more effect than if it had testimony not been given. ***7 ante, It from the case (Maj. 1229.)* Indeed it disappears opn., p. is as if Lightstone never at the trial or was because of appeared deposed, result, illness or some other reason. As a there was no evidence the absolutely believe a finding Lightstone would not have supporting agreed terms more favorable than what the Viners received as a result of their is lawyer’s what sort and malpractice. only of evidence question degree will suffice to an inference he would have agreed—at so least some of Viners’ causes of action.

W&C appears overstate burden of on this “more plaintiff’s proof favorable result” element and thus denigrates Viners have or could issue. this As the itself produce majority opinion recognizes, Court held in this “An Supreme case: concession the other very express parties negotiation other or additional And the need necessary. causation with plaintiff Rather, absolute need certainty. ‘introduce evidence which plaintiff affords a reasonable basis for the conclusion that it is more than not likely that the conduct of the defendant was a in fact cause of the result.’ observed, cases, The Court also “In transactional malpractice [Citation.]”8 cases, in other use circumstantial evidence to his or plaintiff may satisfy her burden.”9

California appellate courts—including encounter Division—frequently in the context of analogous termed inquiry legal (usually counsel”) “ineffective assistance of criminal in cases. What in these happens cases is criminal illustrative of the of the evidence here could type have considered and found sufficient legitimately in the Viners or determining other had a “more favorable in a civil plaintiffs result” case. proved scenario,

In a familiar criminal defendant seeks vacate his guilty plea he would not have to that grounds for his agreed plea except attorney’s circumstance, produce any other evidence to plaintiffs that element. In that survive summary judgment only the judge’s because trial disbelief the mind of witness’s state of testimony enough provide in positive evidentiary support itself that otherwise unsupported element cause of their of action. 7 654, Quoting from Hicks v. Reis (1943) 21 Cal.2d 660 P.2d [134 788]. 8 1232, Sweet (2003) 629, Viner v. Cal.Rptr.2d 30 Cal.4th 1242-1243 70 P.3d [135 1046]. 9 Sweet, supra, Viner Cal.4th at page v. 30 1242.

1239 about the terms of the agreement. him usually misleading plea malpractice, defendant, the the misled the attorney If the evidence shows indeed inquiry would have the rejected whether the defendant then moves on consider The defendant typically had of its terms. deal if he been properly apprised and entered a guilty have the agreement testifies he would not accepted plea court, this the cases that reach he the true In consequences. had known plea about the defendant’s what the court has disbelieved usually testimony trial would have he have and decided the defendant accepted would done instead of its deal even his informed him More provisions. the attorney properly not, allow trial and refuse to the often than we affirm the court’s finding get defendant out his guilty plea. the sort trial courts argument

Of most relevance here is and the defendant would have actually consider whether deciding typically if the had he understood its true terms. Seldom ever rejected agreement plea or e.g., testimony documentary does plaintiff, prosecution, produce evidence on this statements the defendant made fellow question—such he the deal even with the others would taken prisoners suggesting Instead, more he didn’t know about when deal. original terms accepted not, often than the “evidence” and around whether discussion revolve actual would have been the defendant would have terms rejected probable those agreement, consequences rejecting plea so, trial courts find sufficient grounds After agreement.10 doing frequently disavow, to conclude defendants would have the terms now accepted those defendants’ earnest denials those accepted despite revealed the unfavorable deals had their pled guilty lawyers properly involved. provisions 10 making a trial can determination judge evidence and factors consider Some by the represented what a defendant have done are described California properly about 230, 431, Cal.Rptr.2d Supreme Court in In re Cal.4th 253-254 [105 Resendiz

P.3d 1171]: “ defendant, assistance, determining would have ‘In whether with effective [or offer, rejected actually and plea] to be include: whether counsel pertinent factors considered defendant; advice, counsel; any, given by accurately communicated offer to bargain probable consequences of proposed plea terms of and the disparity between the offer; trial, the defendant indicated he proceeding to as viewed at the time whether [(1992) (In re 2 Cal.4th negotiating plea bargain.’ was amenable to she Alvernaz 747].]) ... Cal.Rptr.2d 830 P.2d m HO pled guilty insisted on determining whether or a defendant who has “In advice, may court also consider proceeding competent appellate had he received trial trial, may Petitioner states probable the extent that be discerned. [Citations.] outcome of police report the consistently his innocence and that shows that he has maintained asserts case,’ the evidence he offered indicates nothing his declaration or other has a ‘triable but in might have been might specific able or what defenses have been to avoid conviction how he show cause hearing at the on the order to petitioner explain to him Nor did available at trial. might the evidence have exonerated him.” how 1Í4Ú

Transferred to the cotitext of in civil legal contract malpractice negotiations rather.than criminal of sort circumstantial evidence plea negotiations, on issue and thb bearing should the same. decision-making process Plaintiffs establish could seeking they have won more terms not, other the contract but may, need introduce or party testimony evidence or documentary directly other expert testimony contradicting claim would not have they to such terms.11 But the absence party’s agreed in evidence, finders, of such it is fact whether enough or have judges juries, before them to enough infer the other reasonably have party accepted terms, same; that term or the alternatives should or they reject other circumstances it would be for a surrounding unreasonable suggesting party (The is, thoSe terms. reject fact burden of the risk proof—that of allocated in the nonpersuasion—is differently legal malpractice plea relevance, withdrawal situations does not affect ndr admissibility sort of this of circumstantial when weight evidence or judge a defendant) considers (or what witness would or have would not done if different.) circumstances had been

Furthermore, it is not essential evidence of these circumstances have been introduced that those by plaintiffs, only circumstances be before the jury in some fashion. Plaintiffs persuasión burden bear a a risk of may (really of issue, on but burden don’t a nonperstiasion) have necessarily of production when it comes circumstances the usé to cah infer like contracting Lightstone different party accepted In demanded. judgment for requested reviewing sufficiency evidence, the evidence courts are to consider all circufnstantial otherwise, no matter how it arrived the record.12 So the evidence long of these circumstances in the record it makes no difference which present Indeed, above, introduced it. it party as mentioned is often the case prosecu- tors no new evidence produce bearing directly the issue Whether a criminal defendant would have deal of its rejected aware true plea Yet trial courts nonetheless find and consider consequences. frequently cir- cumstances the record Would already finding defendant supporting the deal and courts affirm those accepted generally appellate findings. There different burden is no reason to production on Civil impose than do on plaintiffs we criminal prosecutors. might (1) examples testimony party Some such evidence include: to the other offered; (2) accepted

contract at some time admitted it terms if a contract those terms; party sighed entity other person expert another which included those testimony are commonly industry those terms included in contracts or that it would be attorney not to on those terms, insist examined, Course, all the evidence must be “Of weighed. is not All of the true, accepted evidence most to the ás respondent favtirable must be unfavorable df fact.” Estate Teel having verity discarded as sufficient to be Hot trier 384], (1944) 25 Cal.2d P.2d italics added. this court should If dissent were taking position

A further this point. trial, to be first I would have earned in the affirm full the Viners judgment the full below were enough circumstances discussed arguing terms in the contract each of the unfavorable awards flowing damage outset, But, dissent produced. explained Sweet’s malpractice for a remand retrial. urges only willing whether would have been

So real not Lightstone question and all wanted as to each five disputed the Viners accept precise to give he would have been willing contract rather whether provisions, any anything as to of those more favorable than they got them substantially to one are circumstances this is case as suggesting If there any provisions. terms, it To contract retrial is warranted. clearly put or more the disputed would win the same another it is not conclude Viners necessary way, trial in to find award retrial did in initial order damage they upon substantial deserve a second chance demonstrate suffered because of financial loss legal malpractice. respondents’ inference Lightstone Here there were circumstances reasonably supporting to the as to one or more terms more favorable Viners terms, Sweet, the five contract if had disputed lawyer, committed contract. drafting negotiating take. one

Contract tend to be matter of To claim negotiations give terms, some if it losing least as to of these even meant budge, the deal commonsense understandings negotiating does with square deal behavior. record is with wanted this indications replete Lightstone He had to be a contentious desired to sever what badly. strongly proved business and to them from Dove’s remove relationship to lose he refused So it was not as if if management. Lightstone nothing Some contract term or terms Sweet insisted modify required. instance, made it a “deal Is it would have Lightstone really likely, had Sweet breaker” there be no fee arbitration shifting proceedings there be? counted being losing party should urged Only Lightstone him that suggestion. in such arbitrations would it make sense for to reject than a net to his if he there was more Indeed would be benefit side thought in such chance be the proceedings MEI would percent prevailing party and a factor if he felt it was 50-50 neutral proposition.

Also, out of made a “deal breaker” is it likely Lightstone if Sweet agreement, term in the termination including a unenforceable legally on its law and insisted it was under California had known unenforceable directly clause this termination agreement removal? the noncompete violates California and law. public The fact an arbitrator later policy statutory state, that the evidently ignored statutory law of our public policy unenforceable, the thereby is no reason to find a enforcing reasonable party’s insistence on including such a term in a contract to be California governed by law. Even if it could said indeed would not a contract Lightstone sign unless contained such a this is not behavior a provision, negotiating sense, California court should be in encouraging In a appellate any way. by this a term a construing can on another the contracting with party impose breaker, its threat absence would be deal this court also the enforcing is unenforceable, a court which is bound California should something law do, even if arbitrators who are not so bound do. sometimes apparently event,

In any it does not a reasonable in appear person Lightstone’s would have position rejected an otherwise favorable contract in order to insist on inclusion of a contract illegal term and unenforceable jurisdiction law which governs contract. The evidence at trial established the ended term contract because did Sweet not know up California law such a clause. It seems prohibited highly unlikely Lightstone would have the entire deal jeopardized this unenforceable term by insisting be included in the contract. clause,

Even term in key nonsolicitation the clause dispute, awarded, for over responsible three-quarters jury appears unlikely have been true “deal breaker” Sweet drafted and insisted on narrower few words in that clause turned out language. which to deny movie and Dove projects television with opportunity pursue Sweet, authors readers to be result of appear sloppy draftsmanship by sense, not the of hard In a product fought negotiations this Lightstone. a “windfall” for provision MEI. represented Lightstone earlier, As out whether a defendant have pointed judge considering walked were away different from what he plea bargain can were decide it still would have been thought reasonable for defendant have and on that basis guilty, his claim he would pled reject reason, have turned down the offer. For the same here prosecution’s could decide it still would have been for legitimately reasonable Lightstone have this signed termination even the nonsolicitation clause did agreement not bar the Viners from movie and television with Dove’s pursuing projects authors readers—and the Viners from them signing up prevented And, future books or audio books. as a is entitled to use that sort judge determination as the basis of a have finding defendant would accepted it, his current claim he would despite have this plea rejected been entitled to decide Viners’ Lightstone quite no reasonable matter he now so. position testifies would not done rather minor remaining to be “deal breakers” were the Even less likely the deal would have cancelled Lightstone It seems unlikely terms in dispute. or either indemnity as to the provision to retain the exact terms MEI received of the stock provisions. it would have been of the dissent is meant to say

Nothing part down contract all the containing to have turned unreasonable for Lightstone as to all five terms. terms the Viners had thought disputed favorable they Rather, conclude he would have is to it unreasonable to it highlight appears at because would have least accept the entire deal he rejected just was more substantially more than which one—provision one—and perhaps The “circum- to the the terms MEI ended receiving. Viners than up If could reasonably do not such the finding. jurors stances” simply do to even have have been unreasonable for MEI to so as one found would contract, to reject Lightstone’s of the would have been entitled they clause Viners, the at would not have more favorable to anything claim he his reject least as to that clause. would have been entitled They testimony the same clause or clauses of the contract—in the same and for way he a trial can a defendant’s claim reason judge reject had known terms worse than he thought the were accepted guilty plea were. they verdict

Recall this dissent does not the the exact adopt position the I be affirmed in this damage full award we affirmed in Viner should Rather, instructed, could reasonably if appeal. jury, point properly have found a deal least somewhat Lightstone more favorable to them to at least some of five disputed provisions to have reached contract. Since evidence sufficient for decision, assumed indeed reasonable such especially given jury’s he would suggesting disbelief of erases Lightstone’s testimony terms, are to a trial to determine how such the Viners entitled new accept much, survive if of their claims will any, damage scrutiny properly instructed jury. In The Record To

B. Evidence Also WasAvailable Substantial Have Obtained A Finding A The Viners Would Jury Support A Theory, A Deal” More Favorable Result Under “No To This Had Jury Which WouldHave Submitted Theory They ” And Been A “More Favorable Result Instruction Given to Submit Be Provided An They Opportunity Which Should Retrial Upon substantial evidence supported finding concedes majority opinion because, based on the contract Sweet’s only signed misrepresentations, believed had obtained

they favorable terms on these In they issues. key “there particular, agrees is substantial evidence in the record that majority they walked from the transaction ... had away known nonsolicitation clause ... in the termination employment agreement negotiable[13] and drafted in accordance with their directions to W&C.” ante, 1227) (Maj. opn., p. however, this deal” majority opinion, disputes “no scenario would a viable cause of action because the

present Viners could not prove they would have been better off had failed termination contract. sign First, as to certain items jury awarded them—the imperfect indemnification the absence of arbitration related rights, fees enforcing contract, credits, the stock dividends and the like—those items producer contract, on the existence contract. Without a depended there would this, no about. In agree I with the complain majority opinion. far, view, But too when majority goes it asserts the opinion my Viners would not have better off with “no deal” than with were the they they deal when it comes to got, major the of the categories damages jury is, awarded—that the lost were opportunities they from precluded pursuing because of the non-solicitation and clauses the non-competition agreement were misled into they lost signing. majority these opinion disregards because, contract, without this termination opportunities have “would they itself, been corporate Dove opportunities exploited not the Viners properly by ante, 1228.) personally.” (Maj. opn., p. view, First,

In two there are my problems assumes each analysis. and one of the the every Viners would sought undertake particular projects “ ‘ “ as a line activities ‘business company’s qualify the opportunity] of ”” ’ claim to obtain.’ which the has an interest and prior company (Maj. ante, Second, 1228.) it assumes too opn., p. much—or too recognizes little—about of available the Viners had walked range options they from this contract away with this fore- particular particular party—options closed when their own misled them into lawyer contract. Those signing several, were and of would options them have freed the Viners to pursue all the missed as their not as Dove’s opportunities personal projects corporate opportunities. with,

To begin several the Viners’ by foreclosed proposed projects nonsolicitation clause of termination expansive language agree- ment were of Dove of that absence “corporate opportunities” dissent, expressed agree For reasons in section I of this I do not clause nonsolicitation nonnegotiable had told the barred pursuing Sweet Viners it them from movie and TV deals provides with Dove’s authors and readers. Rather the “no deal” basis scenario another for finding they could have obtained “more result” that were true. even if and and sale books “line of activities” was production

clause. Dove’s Thus, to make films television the Viners’ various projects audio-books. Dove had did not “corpo- out of books authors written represent productions undertaking just were barred from independently rate they opportunities” and Dove. Those were officers directors of projects—and because they $10 million of them—accounted almost Viners’ lost pursue opportunity $13 true this court in its original million the awarded. It is opinion half this item because we concluded erased almost term of the contract which were barred from the another Forsythe project scenario, deal” that same had But in “no challenged. have existed. Forsythe term also would not unchallenged Consequently, a “no scenario the Viners would be award would restored under deal” $9,901,050 related to the to the full awarded for entitled nonsolicitation clause. to undertake even the Viners arguendo everything

But assuming proposed have been of Dove still would they represented opportunity” “corporate deal them of several better off with “no deal” because the they got deprived as that would have freed them to all of these options pursue opportunities personal projects.

First, sold stock their Viners not officers positions Dove directors of this termination agreement, they part those interests to a third selling They might retained option party. have received as a third would have been from high price party, MEI, ahead of deal millions because they got free to all the found they remained pursue profitable opportunities lost because of in the negotiated Lightstone. conditions Sweet agreement Dove, a find for their in

If the Viners could not a suitable interests buyer Dove, but their to their stock resign second been retain option a mere shareholder’s business as officers and directors. Ordinarily positions deals, she those to the in which even directly corporation competitive stock, does Had holds not “corporate opportunity.” qualify and to been true came agreement, informed termination and non- would never on the broad nonsolicitation realize Lightstone yield case), were would have been (assuming clauses competition they in Dove that foreclosed them from better off from resigning positions these on their own. more pursuing profitable opportunities as well their a third have been to surrender their shares Yet option their event received advice legal In the unlikely they corporate positions. these promising Dove them from prevented pursuing status as shareholders own, they this further had on their would have retained they option projects the termination signed This agreement. more of a represented sacrifice But still would have been a sensible financially After option. Dove, their entire to surrendering interest far from they more gain stood $4 undertake they than the million received projects proposed they from the stock to MEI. selling

Based on Sweet’s about the content of the representations contract they were the Viners would receive a signing, thought they tight fitting, tolerable Instead ended they sweater. up straightjacket. Virtually any would have been to that option straightjacket, add would have preferable available exercised but for probably Sweet’s malpractice. makes much of the fact the majority opinion Viners elected not to submit a “no deal” But reason for theory jury. my colleagues ignore the this—the absence of a “more for” favorable result but instruction. As late as over W&C’s motion for a verdict argument directed the Viners’ counsel motion; was the “do scenario advancing deal” as a reason to But deny when the trial court decided a “more favorable result” Was instruction the Viners no had a “nO inappropriate longer reason submit the deal” thus did do so. theory After Court Supreme opinion however, such dn instruction is holding required, Viners have recognized such a utility urged in in this theory supplemental briefing court. argues also Viners failed to introduce evidence .majority opinion “no deal” scenario. But what

supporting was was not evidence but lacking All the evidence such a only argument. sustain was in the required theory record. There evidence what the Viners lost because ample demonstrating deal, misled them into a bad also What signing .Sweet’s (and the deal gained losses), hence would offset their their firm and also wbuld not have the contract had position they signed they known Sweet the terms he said he had. It is gained difficult what more imagine would have heeded in order a “no to submit deal” theory jury.

II, WHILE THE EVIDENCE WAS SUFFICIENT TO

SUPPORT A VERDICT FOR THE VINERS HAD A

“MORE FAVORABLE RESULT” INSTRUCTION GIVEN, BEEN A RETRIAL NEVERTHELESS IS

REQUIRED, I when hold the trial failure to agree my court’s colleagues they deliver a “more favorable result for” instruction was hot erior. harmless them, 1 Likd conclude it is verdict “reasonably probable” jury’s ante, 1225.) at p. instruction. (Maj. opn., of this affected omission have achieved would to find jury Conceivably, requiring would have in the absence Sweet’s malpractice “more favorable result” above, it discussed for reasons likely, a defense verdict. More resulted in in the awarded damages perhaps reduction some yielded other reduced on more of the counts and defense verdict on one or on is, budged have found might Lightstone counts. That that he have but not others or some of the contract provisions as ones to the Viners but not favorable terms somewhat more favorable had. Sweet they represented reasons, retrial to remand for a necessary potential find it

For these I would evidence a “more of sufficient to support despite presence known it must make that finding. result” finding TO IF THE VINERS HAD FAILED HI. EVEN TO PRODUCE SUFFICIENT EVIDENCE A RESULT” SATISFY “MORE FAVORABLE THE IT BEEN AT INSTRUCTION HAD GIVEN TO A TRIAL, THEY ARE ENTITLED INITIAL THE WHERE BOTH PARTIES HAVE RETRIAL THEORIES, OPPORTUNITY TO PRESENT EVIDENCE, BEARING ON AND ARGUMENT

THAT ISSUE. briefing my clauses in Viners’ stray majority opinion points court, constitute conces- initial on of this which it contends behalf opinion could evidence obtain sions the did not and cannot produce however, context, these In more favorable result but Sweet’s malpractice. be to introduce are not the Viners would unable comments concessions instruction were sufficient evidence a “more favorable result” required. of arguments against Instead those comments were included part requiring instruction, nature of such an speculative inquiry emphasizing authored for this I briefing opinion in the Viners’ Nothing imposes. new produce court the Viners a retrial or the justifies opportunity denying retrial, theories, now that they this issue at such evidence or argument be will have to prove specific know this instruction will order to element in recover. this court on the “more corrected the Viners and Court Supreme But the high lawsuit. in transactional malpractice

favorable result” element nature of another issue—the court corrected the Viners on also important counsel Viners’ repeatedly this element. The required Court, it would before the argument Supreme emphasized, including to admit he would have impossible get Lightstone them terms more in favorable than those the contract signed. years After of rancor and them, between he litigation was the most hostile of witnesses. simply possible But Court out it was not Supreme to elicit such pointed necessary concedes, from testimony As the Lightstone.14 majority opinion jury’s and assumed justifiable disbelief could Lightstone’s testimony completely erase the evidence he terms more to the favorable And Viners. circumstantial evidence of discussed earlier this type could an affirmative opinion would have done so. finding Upon retrial, the Viners should have the to act on the Court’s opportunity Supreme correction this as well. misconception retrial,

As a second reason for W&C and the disallowing majority the Viners had one at opinion argue and shot a “more proving favorable result” the first trial. fact the during According argument this trial court turned down W&C’s a “more for favorable result but for request Sweet’s instruction is irrelevant. malpractice” failed Purportedly having sufficient evidence produce to show “more favorable result” at the initial trial, ante, are barred argument goes, trying again. (Maj. opn., at 1231-1233.) pp. Court,

In their and their oral briefing argument especially Supreme W&C made the same Court to argument urged reverse Supreme This invitation the Court judgment outright. chose not Supreme unanimously Instead the reversed high court on the issue of accept. solely legal whether a “more favorable result” element was in transactional required malpractice cases and remanded to this for court further consistent with that proceedings Thus, the fact holding. Court had before it all the despite Supreme at trial and further fervent produced original W&C’s despite this now was case plea really “sufficiency the evidence” and the Viners evidence, had failed to degree Justices instead supply unanimously restricted their issue consideration to the of whether a opinion pure legal “more favorable result but was an essential lawyer’s malpractice” element of a transactional case. malpractice

W&C and the also overstate the of the law on majority certainty opinion the issue whether of a context transactional case a “more result” element was in a “substantial factor” instruction implicit fact, an essential of that cause of action. In it was so at the part apparent time of this trial and at Indeed this issue the trial level appeal. arguing no counsel found W&C’s conceded he had California decisions existing Sweet, supra, v. Viner pages page passage quoted Cal.4th 1241-1242. This 1238, ante.

1249 in was transac- result but for instruction required a more favorable holding And, Court confronted the Supreme finally cases. when tional malpractice reverse this court’s only it necessary opinion issue the found justices case then extant which California but to Other appellate disapprove Parichan, v. Assn. Bureau issue, State Auto. Inter-Ins. bore on this Calif. Harvey.15 Crossrhan & Renberg, II led the BAJI Viner in Court’s It also is noteworthy Supreme opinion to be add new and rather instruction entirely lengthy given Committee to an this Neither all trials transactional involving legal malpractice. in future the book of California jury nor one like it any instruction appeared v. trial of the initial Viner Sweet at the or the appeal instructions time This new in that case to this court. brand instruction expressly judgment of this work was handling negligent requires plaintiff prove, “[t]he used to the word ‘cause’ as in this cause of and loss The damage plaintiff. but for, . . or in the absence of this negligence, instruction . means that more result would have obtained a plaintiff attorney’s . . . .”16 of work handling error this instructional

As it a trial Court not deliver represent future, is in a case now in the instruction transactional malpractice was to the difficult to it was irrelevant no instruction to this effect argue in Viner I. The reads too much into majority Supreme opinion for” is in the “substantial Court’s statement the “but element “subsumed” the “substantial factor” test. The with W&C along argue majority appears delivered this case was sufficient factor” instruction the trial court 15 Parichan, Harvey Renberg, Bureau v. Crossman & State Auto. Assn. Inter-Ins. California disapproved the Cal.App.4th Cal.Rptr.2d Supreme portion Court 72]. 702 [101 instruction, rejection of “but for” which justifying proffered of that the trial court’s opinion litigation rejection malpractice. between based on difference ttansactiohal ) Sweet, (Viner supra, p. v. fn 30 Cal.4th 5. 6,37.6 BAJI TRANSACTIONAL Italics added. The full instruction reads follows: MALPRACTICE—BUT FOR CAUSATION professional of plaintiff___ upon seeks to based a claim recover [also] [(other professional)]. negligence by [attorney] claim The essential elements of this are: (advising, negotiat- [attorney] negligent handling [(professional)] 1. That the ing, etc.); and plaintiff. damage a cause and loss to the negligent handling 2. The of this work was for, [only] in the “cause” as this absence The word used in instruction means attorney’s plaintiff favorable result from negligence, would have obtained more _]. [,namely, handling the work [However, consisting profession- actively one operating, more forces are where two or misconduct on the independent of and not because negligence, al's and the other loss, bring by itself sufficient about part, and each of these forces is professional’s (Jan. 2004).) (BAJI negligence a cause of the No. 6.37.6 professional’s loss.] inform it must find the Viners could would have obtained the they terms had but for thought they Sweet’s malpractice. W&C did not the

Obviously, “substantial factor” instruction the trial regard court the gave to alert to the need to find the adequate jury Viners would have achieved a “more favorable result.” Rather W&C’s counsel repeatedly to the trial he should the vigorously argued “more judge give specific favorable result” instruction W&C they also before this proposed. argued court the failure give to instruction was fatal error. At this late requested date, to they should not heard to argue—as do—that the they appear absence the “more favorable result” instruction was irrelevant because it was “subsumed” the in “substantial factor” instruction court did the give.

Nor, seen, as we have did the Committee on Standard Instructions Jury the “substantial factor” regard instruction as in this case to suggest need for the to consider find whether the plaintiff obtained “more favorable result” lawyer committed malpractice. Instead of in the new “transactional merely stating instruc- legal malpractice” tion must be a “substantial factor in lawyer’s malpractice bringing harm, about” client’s Committee found it frame necessary for, instruction focused need to find “but in the precisely jury’s or absence a more lawyer’s] negligence, obtained [the [client] (Italics added.)17 result.” the Viners a “more requirement favorable result for Sweet’s was not to the negligence” brought attention jury’s adequately Thus, “substantial factor” instruction the trial court in the initial gave trial. failure on the Viners evidence of a “more favorable part produce result” all the argue theories cannot such potentially supporting finding be assumed to be the a failure such product evidence. possess procure RETRIAL,

IV. UPON THE VINERS LIKEWISE BE A SHOULD ALLOWED TO PURSUE “LOST OPPORTUNITY” NEGOTIATION THEORY. them,

Had about Sweet misled Viners the terms he had obtained for third would have had a they the contract or beyond signing walking option could have submitted a away. They counteroffer and continued Lightstone as one Merely could have offered to reduce negotiations. they example, somewhat the were to in receive return for more favorable compensation treatment in other terms of the (unenforce- contract—the clause noncompete law, clause, able under California and/or nonsolicitation anyway) particular. (Jan. 2004). No. quoted BAJI 6.37.6 The full instruction is in footnote ante. ex- lost

Because of Sweet’s opportunity malpractice, value to them than items less trade-offs with Lightstone—giving up change more value to them but less to him return for items of gaining were some these the Viners lost far more because value to him. It seems obvious in the contract. existed than from their Lightstone gained presence clauses of economic of these clauses some deprived But was no evidence found were valuable. there very opportunities or indirectly. MEI as a result of these suggesting profited provisions—directly essence, In the Viners could is but another route finding deal” for Sweet’s Even assuming have achieved “better if not malpractice. was and it when he testified he would not have honest meant Lightstone favorable terms on one of the five contract items more given any does not mean he would not in in negotiations, dispute point have done so sweetened the deal in other Assuming had they respects. on is rather than vindictive behavior reasonable rational Lightstone’s part, have in beneficial mutually negotiating engaged anticipate them behavior. had the Viners known Sweet was Consequently, misleading said he had them the terms wanted without further gotten when he they concessions, and well decided to continue the they might negotiations have would have found attractive. The jury presented Lightstone counter-proposals second trial should have the whether considering opportunity a “better had Viners would have ended deal” from their perspective up and taken they advantage opportunity. California decided it better to Court has is enter rightly Supreme that, world of “if then what” rather than “but for” omitting

speculative reflection, not bow element in transactional actions. I only Upon on to their I authored was in error that issue. agree supremacy opinion world, are, that, But are “if then and we certainly if we what” we entering in, is can’t and then back out because the water a little predictably tiptoe chilly. counteroffers, and are events. negotiations

Contract fluid Offers etc., offers, counter-counter-counteroffers, flow typically counter-counter ballet often ending back and forth across the table. It is sophisticated is But if signed. contract finally even mid-leap—when mid-pirouette soon, because their the dance too one side of negotiations stops him wanted they terms told they very they them have lawyer promises don’t, their foreclosed from suing the fact that side should not be despite they when It if the thing lawyer only misjudges for his is one lawyer malpractice. clients. is different when the deal is at for his It entirely optimum the evidence indicates hap- the terms of deal—as lawyer misrepresents bad leads his clients contract. sign here—and thus pened scenario, Under this third whether the would or would have plaintiff been better off deal” with “no than the deal Also they got irrelevant. simply irrelevant is whether could they have obtained the exact deal wahted they had. real they is whether could have thought question they gained a. with, better deal than ended had continued. In most up negotiations scenario, under this third it will to be deal quite instances good is, had. That some they thought they favorable contract gain language them, well may give somewhat on other contract important terms. But almost it will be “better certainly net deal” than the one they mistakenly signed.

If are would or would juries capable deciding Lightstone Viners, terms more favorable to the can be entrusted accepted they certainly with the determination whether those terms Lightstone issues, if the had new offered terms on other more which were to him. Cross-examination often would reveal- prove especially someone ing—as to a Lightstone’s succession position exposed about what in the Viners’ on certain contract terms questions changes position instance, have caused him to alter his might other terms. For position $250,000, the Viners offered to reduce the stock price purchasing Lightstone have willing modify ambiguous language television, 1.10 that them and deals arguably movie prevented pursuing $500,000? with Dove authors and readers? How about cut the they price by n Howmuch did Dove’s increase because of existence earnings Furthermore, nature, in 1.10? language cross-examination of this beyond direction, other could testimony circumstances also same If point had not in mid-stream because Sweet negotiations stopped erroneously “won,” told the Viners further already Wouldhave been negotiations led to more favorable both possible contract (perhaps sides) the one signed. than reasons,

For all above Í would not reverse just judgment, That, remand retrial before instructed possible jury. properly that, to be resolution of just appears appeal.

Case Details

Case Name: Viner v. Sweet

Court Name: California Court of Appeal

Date Published: Apr 23, 2004

Citation: 12 Cal. Rptr. 3d 533

Docket Number: B138149

Court Abbreviation: Cal. Ct. App.