Filed 4/16/14 Salerno v. Girardi & Keese CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
RICHARD SALERNO, et al., B250050
Plaintiffs and Appellants, (Los Angeles County Super. Ct.
No. BC437448)
v.
GIRARDI & KEESE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles, Frederick C.
Shaller, Judge. Affirmed.
Law Offices of Terence J. Mix and Terence J. Mix for Plaintiffs and Appellants.
Law Offices of Martin N. Buchanan, Martin N. Buchanan; Baker Keener & Nahra
LLP, and Philip A. Baker for Defendant and Respondent.
_________________________
Represented by the law firm of Girardi and Keese (Girardi), Richard Salerno1 filed
a personal injury action against Thomas Fountain, alleging injuries suffered in a
motorcycle accident. Girardi’s motion to withdraw as counsel was granted before trial.
Richard’s attempt to substitute in new counsel failed when the trial court refused to grant
a continuance to allow counsel to prepare with new expert witnesses. Richard proceeded
to trial without an attorney. A defense verdict was rendered, along with an award of costs
against Richard in the amount of $157,386.
Richard and his wife, Connie Salerno, then brought this action for legal
malpractice and breach of fiduciary duty against Girardi, which resulted in two trials. In
the first trial (Trial I), Connie’s action was dismissed on Girardi’s motion for nonsuit. A
mistrial was declared as to Richard’s action during jury deliberations in Trial I. The
second trial (Trial II) ended when the trial court granted Girardi’s motion of nonsuit after
finding Richard had failed to establish the element of collectibility in the underlying
personal injury action.
The Salernos appeal from the judgment in favor of Girardi. They raise three
issues on appeal: (1) because there was evidence of insurance coverage in the amount of
$1.25 million in the underlying action, the trial court erred in granting Girardi’s motion
for nonsuit in Trial II; (2) the court erred in ordering a mistrial in Trial I because a
complete verdict had been rendered; and (3) the court erred in granting nonsuit as to
Connie. We affirm.
1 When appropriate, we refer to the Salernos by first name for purpose of clarity.
No disrespect is intended.
2
DISCUSSION
I
Richard argues the trial court erred in granting Girardi's motion for nonsuit in Trial
II on the issue of collectibility. Richard contends the record contains substantial evidence
that Fountain had insurance coverage. He further argues he established other damages
resulting from Girardi's negligence and breach of fiduciary duty, because Richard was
ordered to pay costs of $157,386 in the underlying action after a defense verdict was
returned.
The Record is Insufficient to Overcome the Presumption the Judgment is Correct as
to Trial II
The record on appeal presented by the Salernos relating to Trial II does not include
a reporter’s transcript or suitable substitute such as a settled statement of any pretrial
rulings, opening statements, or the testimony of any witness other than David Lira, the
Girardi lawyer charged with managing the underlying personal injury action. The record
also includes a transcript of impeaching portions of Lira’s deposition, and the trial court's
order granting Girardi's motion for nonsuit on the issue of collectibility of the underlying
judgment.
Prior to briefing in this appeal, this court issued an order requiring the parties “to
brief the issue of whether the Salernos’ failure to provide a more complete reporter’s
transcript or a suitable substitute warrants affirmance based on the inadequacy of the
record.” The Salernos’ opening brief does not address the adequacy of the appellate
record. Girardi's respondent's brief argues that failure to designate the entire reporter's
transcript of the second trial required affirmance on the basis of an inadequate record,
citing Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 124 (Ritschel)
(“An appellate court's review of a judgment after the grant of a nonsuit ‘must be based on
the whole record, not just excerpts chosen by the appellant’”). In the reply brief, the
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Salernos argue the partial record is sufficient because the issue of collectibility of the
underlying judgment is limited and does not require an exhaustive review of the entirety
of the record.
We conclude the record is unquestionably insufficient to demonstrate reversible
error under settled California law. “An appellate court begins with the presumption the
judgment is correct (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435) and the
appellant must prepare a record that adequately establishes the trial court committed
prejudicial error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296; Rancho Santa
Fe Assn. v. Dolan–King (2004) 115 Cal.App.4th 28, 46.)” (Ritschel, supra, 137
Cal.App.4th at p. 122.)
“In numerous situations, appellate courts have refused to reach the merits of an
appellant's claims because no reporter's transcript of a pertinent proceeding or a suitable
substitute was provided. [Citations.] [¶] The reason for this follows from the cardinal
rule of appellate review that a judgment or order of the trial court is presumed correct and
prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2
Cal.3d 557, 564.) ‘In the absence of a contrary showing in the record, all presumptions in
favor of the trial court's action will be made by the appellate court. “[I]f any matters
could have been presented to the court below which would have authorized the order
complained of, it will be presumed that such matters were presented.’” (Bennett v.
McCall (1993) 19 Cal.App.4th 122, 127.) This general principle of appellate practice is
an aspect of the constitutional doctrine of reversible error. (State Farm Fire & Casualty
Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)” (Foust v. San Jose Const. Co.,
Inc. (2011) 198 Cal.App.4th 181, 186-187.)
The Salernos’ contention that the very limited reporter’s transcript presented is
sufficient to review the issue of whether nonsuit was properly granted in Trial II on the
issue of collectibility overlooks the possibility that other matters may have been
presented to the trial court, which would also justify judgment for Girardi. This court
cannot make a determination if the order granting nonsuit was prejudicial, as required by
article VI, section 13 of the California Constitution, without a complete record of the
4
balance of the proceedings in Trial II, including all the testimony. Because there are
other potential issues which could compel judgment for Girardi, we must presume that
those other factors are present, and affirm the judgment on that basis. (Foust v. San Jose
Const. Co., Inc., supra, 198 Cal.App.4th at pp. 186-187; Bennett v. McCall, supra, 19
Cal.App.4th at p. 127.)
Assuming the Record is Sufficient, Nonsuit was Properly Granted
Because of the somewhat tortured nature of this litigation, we conclude it is best,
in the alternative, to address the merits of the contention that nonsuit was improperly
granted on the issue of collectibility. We hold the trial court properly granted the motion
for nonsuit.
a. Standard of Review
“‘In determining whether a nonsuit was properly granted the reviewing court must
resolve every conflict in testimony in favor of the plaintiff and at the same time indulge
in every presumption and inference which could reasonably support the plaintiff's
case. [Citation.] The rules governing the granting of a nonsuit, however, do not relieve
the plaintiff of the burden of establishing the elements of his case. The plaintiff must
therefore produce evidence which supports a logical inference in his favor and which
does more than merely permit speculation or conjecture. [Citation.] If a plaintiff
produces no substantial evidence of liability or proximate cause then the granting of a
nonsuit is proper. [Citation.]’ (Jones v. Ortho Pharmaceutical Corp. (1985) 163
Cal.App.3d 396, 402.)” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th
1190, 1209.)
5
b. The Requirement of Proving Collectibility
“It is well accepted that ‘one who establishes malpractice on the part of his
attorney in prosecuting . . . a lawsuit must also prove that careful management of it would
have resulted in recovery of a favorable judgment and collection of same . . . .’
(Campbell v. Magana (1960) 184 Cal.App.2d 751, 754, italics added; Garretson v.
Harold I. Miller (2002) 99 Cal.App.4th 563, 568–569 (Garretson ).)” (Hecht, Solberg,
Robinson, Goldberg & Bagley v. Superior Court (2006) 137 Cal.App.4th 579, 583
(Hecht).) Collectibility does not apply to every legal malpractice action. “It is only
where the alleged malpractice consists of mishandling a client's claim that the plaintiff
must show proper prosecution of the matter would have resulted in a favorable judgment
and collection thereof.” (DiPalma v. Seldman (1994) 27 Cal.App.4th 1499, 1507.) “The
plaintiff has to show both that the loss of a valid claim was proximately caused by
defendant attorney's negligence, and that such a loss was measurable in damages. (Ibid.)
In this sense, collectibility of the hypothetical underlying judgment against the named
defendant is a component of the plaintiff's current case relating to damages, as caused by
the current negligent attorney defendant, and is a fact-intensive inquiry.” (Hecht, supra,
at p. 591.)
c. Analysis
The limited record presented by Richard contains no evidence Fountain had the
ability to pay a judgment in any amount. Richard relies only on the testimony of Lira to
establish insurance coverage in the underlying personal injury action. Lira testified he
was the Girardi attorney responsible for supervising work on Richard’s personal injury
action, which had been referred to Girardi by attorney Larry Longo. Girardi initially
declined to represent Richard. Lira testified he was told by Longo there was a $250,000
insurance policy, but due to the injuries, it would be easy “to pop the policy” and settle
for the policy limits. Girardi agreed to represent Richard in the hope of obtaining
6
whatever was available to him, including the prospect of the $250,000 in insurance.
After the lawsuit was filed, Vince Carter, the attorney handling the litigation for Girardi,
told Lira there was an addition $1 million insurance coverage. Girardi made a statutory
offer to compromise for policy limits to settle the action, but did not receive a response.
The trial court expressly ruled that Lira’s testimony regarding the existence of insurance
coverage was not admitted for the truth of the matter asserted, but only to explain the
mental process of Girardi in proceeding with the case and filing the offer to compromise
for the policy limits.
Lira had no personal knowledge of insurance coverage. According to the
argument on the motion for nonsuit, no insurance policy was offered in evidence in Trial
II, nor did Fountain testify to coverage or ability to pay a judgment. The statement by
Longo that there was a $250,000 policy was an out of court statement, which the trial
court properly ruled was not admissible for the truth of the matter asserted. (Evid. Code,
§ 1200 [hearsay is evidence of a statement made other than by a witness at trial that is
offered for the truth of the matter asserted, and except as provided by law, hearsay
evidence is inadmissible].) Carter’s statement to Lira about the $1 million insurance
policy was also not admissible for the truth of the matter asserted, as the record contains
no foundation that Carter spoke with personal knowledge, and Lira merely repeated what
Carter had told him. To the extent Richard argues Carter relied on unsworn answers to
interrogatories in Richard’s personal injury action to show the existence of insurance,
Lira’s knowledge would have been based on multiple levels of hearsay and was
unquestionably inadmissible for its truth. Finally, the out of court statements regarding
insurance coverage were not admissible as statements of the declarant’s existing mental
state, because the mental state of the declarants— Longo, Fountain, and Carter— was
“not itself an issue in the action.” (Evid. Code, § 1250, subd. (a) (1).)
While it is true Girardi made an offer to compromise for policy limits, that offer
does not constitute proof that Fountain was insured, or in what amount. No response was
received to the offer, so there was no confirmation of the existence of insurance.
7
Finally, as the trial court accurately pointed out, without proof of the actual
existence of insurance in a particular amount, there was no way for the jury to
competently assess the issue of collectibility. Had the action gone to verdict in favor of
Richard, the trial court realized any determination of the collectable amount of damages
would have been based only on speculation, and any verdict would have necessarily been
set aside. Given this consideration, there was no basis for the case to go forward, and
nonsuit was properly granted.
The Salernos further argue that Richard was damaged by the cost award of
$157,386 against him after the defense verdict in the underlying trial against Fountain.
However, the Salernos never asserted the cost bill as a basis for liability in the trial court
in opposition to the motion for nonsuit, thereby forfeiting the issue. (Martin v.
PacifiCare of California (2011) 198 Cal.App.4th 1390, 1409; Richmond v. Dart
Industries, Inc. (1987) 196 Cal.App.3d 869, 874.) The first time the Salernos argued that
the award of costs was sufficient evidence of damages to defeat nonsuit was in their
motion for reconsideration of the order granting nonsuit. The trial court properly denied
reconsideration on various grounds, all of which are immune from attack. The Salernos’
motion for reconsideration did not rely on newly discovered evidence or new law, and
according to the trial court, the issue of the cost award as damages was never raised
before the jury, and there was no proof of the cost award at trial. Denial of
reconsideration was not an abuse of discretion.
II
The Salernos next argue there was a valid and complete verdict in Trial I, even
though polling of the jury was not completed, because more than nine jurors agreed on a
verdict, under the reasoning in Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247 (Jeld-
Wen). In addition, the Salernos dispute each of the bases relied upon by the trial court in
determining that a mistrial was necessary.
8
Background
The Salernos did not include a reporter’s testimony of any aspect of Trial I in the
appellate record, except for proceedings that took place after the jury commenced
deliberations. We summarize the four transcripts below.
a. Transcript dated December 23, 2011
According to the clerk’s transcript, deliberations commenced December 22, 2011.
The next day, the jury addressed several questions to the trial court relating to language
used in the special verdict form, asking for an explanation of the word “harm,” and the
meaning of “but for” and “fiduciary.” The parties agreed the jury should be referred to
instructions that had already been given (CACI Nos. 601 and 603) in regard to the
definition of “harm” and “but for.”
The jury’s request for an explanation of the meaning of “fiduciary” proved more
troubling to the trial court, as no instructions were given on breach of fiduciary duty, the
second cause of action in the Salernos’ complaint. Richard had included CACI No. 4106
(“Breach of Fiduciary Duty by Attorney—Essential Factual Elements”) in his list of
requested instructions, but the final instruction package (prepared by Girardi) did not
include any definition of fiduciary, and Richard had not objected when the instructions
were given. The trial court noted that Question No. 5 in the verdict form asked if Richard
would have suffered harm but for negligence by Girardi, and Question No. 6 asked if
Girardi breached its fiduciary duty to Richard. The court decided to answer the jury’s
inquires other than providing the definition of fiduciary. The court answered the jury’s
questions in writing, specifically advising the jury that the meaning of fiduciary “refers to
question number 6. You may not answer question 6 until you have answered question
number 5.” According to the minute order, the jury was ordered to return on December
27, 2011. The court left open, for further consideration after the Christmas break,
9
whether it had a responsibility to instruct on a critical issue when the instruction was not
given due to an attorney’s excusable neglect.
b. Transcript dated December 27, 2011
When proceedings resumed on December 27, 2011, the trial court learned a juror
was injured over the break in proceedings, requiring replacement with an alternate juror.
The jury was instructed to begin deliberations anew with a new verdict form. Girardi had
served an email copy of a motion for directed verdict or mistrial on counsel for Richard
the night before December 27, 2011. The court denied Girardi’s motion as being
untimely and based on inadequate notice. On the issue of the lack of instructions on
fiduciary duty, the court determined there was fault on both sides for not giving the
instruction, and agreed to Richard’s request that CACI No. 4100 (“‘Fiduciary Duty’
Explained”) be given over Girardi’s objection that the proposed instruction is not
applicable to attorneys. The court noted that the jury was beginning deliberations anew,
and the jury had been told the previous court day not to address Question No. 6 until
answering Question No. 5.
However, before the trial court could provide the instruction on fiduciary duty, the
jury asked whether its award of damages could be based on the average found by each
juror. The parties and court agreed the jury was not permitted to average the damages, as
already explained in CACI No. 5009, which was included in the original set of
instructions provided to the jury. The court noted that if the jury was discussing
damages, it had answered Question No. 6 before it received the instruction defining
fiduciary duty. Girardi again argued that CACI No. 4100 does not apply to breach of
fiduciary duty by an attorney and CACI No. 4106 is the correct instruction. In addition,
Girardi objected to further instructions because Richard had not argued breach of
fiduciary duty at trial, and had not articulated a fiduciary duty that was breached. The
court determined it would give CACI No. 4100. Richard suggested the court instruct
with CACI 4106 and identify the fiduciary duty as failure to use reasonable diligence.
10
The jury returned to the courtroom. The court instructed the jury not to average
the damages. The court also told the jury it assumed the jury had answered Question No.
6 regarding breach of fiduciary duty, but the answer may not be correct, so the court read
the modified version of CACI No. 4106 requested by Richard and instructed the jury to
consider if the instruction changed the answer to Question No. 6.
The jury later indicated it had reached a verdict. The court examined the verdict
form and noted all questions had not been answered by nine members of the jury. In
Question No. 1, the jury found Fountain had been negligent and in Question No. 2, that
Fountain’s negligence was a substantial factor in causing harm to Richard. In Question
No. 3, which asked the jury to apportion negligence between Fountain and Richard, the
verdict form indicated the following; eight jurors found Richard 80 percent at fault and
two found Fountain 20 percent at fault; one juror found Richard and Fountain each 50
percent at fault; and one juror found Richard 49 percent at fault and Fountain 51 percent
at fault. The jury was ordered to resume deliberations and not to “consider any question
beyond question 3 until question 3 is resolved. . . .”
The jury returned again with its verdict, which the clerk began to read. The
special verdict form reflected the following findings:
Question No. 1—Fountain was negligent in the collision with Richard;
Question No. 2—Fountain’s negligence was a substantial factor in causing harm to
Richard;
Question No. 3—Richard was 60 percent at fault and Fountain was 40 percent at
fault;
Question No.4—Girardi was negligent;
Question No. 5—Richard suffered harm as a result of Girardi’s negligence;
Question No. 6—Girardi breached its fiduciary duty to Richard;
Question No. 7—Girardi’s breach of its fiduciary duty was a substantial factor in
causing harm to Richard;
Question No. 8—Richard was entitled to past economic loss of earnings of
$250,000 and total past economic damages of $1.5 million. Future economic lost
11
earnings were $850,00 and medical expenses were $1,326,000. Past non-economic loss
including physical pain and mental suffering was $5 million and future noneconomic loss
including physical pain and mental suffering was $1 million, for total damages of
$10,676,000; and
Question No. 9—among the attorneys for Richard, Girardi was 80 percent at fault
and other attorneys were a combined 20 percent responsible.
The trial court held a conference with counsel outside the presence of the jury.
The court noted an error in the verdict form in the answer to Question No. 8, because past
lost earnings were $250,000 but the verdict reflected total past economic damages of $1.5
million. The parties agreed that the figure should not be more than $250,000, and the
jury was instructed to reconvene to correct the error in arithmetic.
After further deliberations, the jury returned for a third time with a verdict. The
corrected verdict limited past economic loss to lost earnings of $250,000. The balance of
the verdict remained as previously read. The court directed the clerk to poll the jurors.
On Question No. 1, the poll was 10-2, with jurors number 5 and 9 voting “no.” The clerk
began polling on Question No. 2, but when the clerk polled juror number 5, who had
voted “no” on Question No. 1, the foreperson referred the court to Question No. 1 which
said, “If you answer no, then stop here.” The court said the direction to “stop here” was
meant for a situation where nine or more jurors voted “no,” and it did not mean that
individual jurors who voted “no” should stop participating in deliberations. The court
explained that if all the jurors did not vote on each issue, then the jury must return and
“and you’re going to have to do it again.” The jury was ordered to return the following
morning. Girardi moved for a mistrial on the ground all jurors did not participate and
there was not a jury of 12 people deliberating. The court agreed to address the problem
the following morning.
c. Transcript dated December 28, 2011
12
The court heard argument on Girardi’s motion for mistrial. Girardi argued there
was misconduct because the jury did not answer the questions in order and all 12 jurors
did not participate in deliberations. The jury first returned a verdict without nine votes,
then presented an incorrect verdict on past loss of earnings, followed by the disclosure
when the jury returned for the third time that only 10 jurors had voted after Question No.
1, destroying the deliberative process. Richard argued the jury had not committed
misconduct but merely misunderstood the instructions. The problem with a lack of
instructions on fiduciary duty was attributable to both parties, and was not the fault of the
jury. Girardi responded that excluding the two dissenting jurors resulted in an
extraordinarily large verdict. He predicted the jury would return quickly with a “rubber
stamp” of its prior verdict.
The court granted the motion for mistrial after a detailed review of the history of
the case, focusing on the following factors. The case was submitted to the jury with no
instructions on fiduciary duty. The court agreed to give an instruction, but the instruction
identified a breach different from those alleged in the complaint—failure to exercise
reasonable diligence. The instruction is insufficient as a matter of law, and it is
impossible to tell if the breach of fiduciary duty verdict affected the damages as a whole.
Another problem is the lack of any evidence by Richard that the medical damages are
reasonable. In response, Richard argued the lack of evidence was not an issue because
the medical bills were paid, but the court pointed out that the jury received no evidence of
that fact.
The court then turned to problems with the jury. The jury overlooked definitions
plainly set forth in the instructions. The jury was told not to answer Question No. 6 until
it answered Question No. 5, but the jurors answered Question No. 6 without any
instructions on breach of fiduciary duty. The jury asked the court about averaging the
damages, despite a clear instruction already given not to do so. On the second verdict
form, it is apparent two jurors did not continue to vote, because on Question No. 3 there
were only ten votes shown, and moreover, only eight jurors agreed on the percentage of
liability between Richard and the other driver. Even though only eight jurors agreed on
13
the percentages of fault in Question No. 3, they proceeded to answer Question Nos. 4-9.
The court could not determine how the jury arrived at an extra $1.25 million in past
economic loss. The court pointed out there was a very short time between the first and
second attempts to return a verdict, and two jurors did not participate in whatever
deliberation process took place in that time.
The trial court concluded these problems could not be corrected with this jury and
there was no possibility of a fair verdict. The various verdict forms were made part of the
record on appeal by the court.
d. Transcript dated January 27, 2012
The court heard oral argument on Richard’s written motion to set aside the mistrial
order and have the verdict reinstated. Richard argued he had inadequate time to respond
at the time mistrial was granted. He further argued there was no jury misconduct. The
last signed verdict was agreed to by at least nine jurors and was valid, even without the
deliberation of the two jurors who voted “no” on Question No. 1. Girardi’s failure to
object to the lack of complete polling of the jury forfeits any claim that the verdict was
incomplete under the holding in Jeld-Wen, supra, 46 Cal.4th 247. Although all 12 jurors
should participate in deliberations, the failure to do so does not mean the verdict is
invalid. The jury was told not to answer Question No. 6 until Question No. 5 was
answered, but the jury was not directed to wait for further instructions on breach of
fiduciary duty before addressing Question No. 6. Even if the fiduciary duty instruction
was wrong, it had no influence on the negligence verdict, and there is no reason to set
aside the negligence findings.
Girardi opposed the motion, arguing the jury had the instructions in the jury room
but ignored them. The jury reached a verdict on breach of fiduciary duty without an
instruction on the issue, and the instruction ultimately given defined negligence, not
breach of fiduciary duty. The question about averaging damages was “ridiculous” after
the jury had been expressly instructed not to do so. The jury attempted to return a verdict
14
based only on eight votes. The jury did not re-deliberate as directed on December 28,
2011.
Richard responded and Girardi replied. The trial court denied the motion. The
court disagreed that Jeld-Wen was controlling, because polling of the jury was stopped by
the court when the court concluded all jurors had not deliberated and voted. There was
no verdict because polling was never completed.
Standard of Review
“The fundamental idea of a mistrial is that some error has occurred which is too
serious to be corrected, and therefore the trial must be terminated, so that proceedings can
begin again. . . . [¶] Because the core idea of a mistrial is the presence of error that
cannot be corrected, it is natural that, generally speaking, the standard of review will be
abuse of discretion. That is, the trial judge, present on the scene, is obviously the best
judge of whether any error was so prejudicial to one of the parties as to warrant
scrapping proceedings up to that point. ‘Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions.’ (People v. Haskett (1982) 30
Cal.3d 841, 854, citing Illinois v. Somerville (1973) 410 U.S. 458, 461–462, 93 S.Ct.
1066, 35 L.Ed.2d 425.)” (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672,
678.) One court has “detected” that our Supreme Court’s jurisprudence reflects “a
substantive preference” against granting motions for mistrial, citing opinions in criminal
cases. (Id. at pp. 678-679.)
Analysis
a. Adequacy of the Record
15
The record on appeal is inadequate to support Richard’s argument that a
completed verdict was returned as in Trial I. Other than what occurred during the jury
deliberation phase of trial, this court has no record of trial proceedings. Without a
complete record of all trial proceedings—including pretrial motions, opening statements,
witness testimony, discussion of jury instructions, and the arguments of counsel to the
jury—we cannot assess whether the trial court abused its discretion by declaring a
mistrial. The court granted a mistrial in part based on the erroneous instruction on breach
of fiduciary duty, and without a record of the evidence presented on that cause of action,
as well as the cause of action for negligence, we are not in a position to question the
court’s determination that the error created incurable prejudice to Girardi.
b. The Contention Fails on the Merits
Even based on the inadequate record presented, Richard’s contentions that the trial
court abused its discretion in granting a mistrial and a complete verdict was rendered both
fail. Before granting the mistrial, the trial court identified repeated failures of the jury to
read and comprehend the clear instructions of the court. The court stated that the jury at
one point attempted to return a verdict supported only by eight jurors, and at another
point the jury arrived at a verdict for past economic damages of $1.5 million, when the
only evidence showed lost earnings of $250,000. The instruction on breach of fiduciary
duty, which defined fiduciary duty only in terms of general negligence, was incorrect as a
matter of law because a breach of fiduciary duty is a tort distinct from professional
negligence. (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534; Stanley v.
Richmond (1995) 35 Cal.App.4th 1070, 1086.) The trial court could reasonably conclude
that erroneous instruction may have influenced the jury’s calculation of damages. During
polling, it was disclosed that two jurors were excluded from deliberations after voting
“no” on Question No. 1., rather than continuing to deliberate as a jury of 12, as
contemplated by the law. Given this abysmal record, the trial court’s determination that
16
it had no confidence a fair verdict would result cannot be characterized as an abuse of
discretion.
Richard argues Jeld-Wen, supra, 46 Cal.4th 247, establishes that the jury’s final
verdict was complete and mistrial was therefore improperly granted. We disagree
because the issue in Jeld-Wen bears no similarity to the instant case. In Jeld-Wen, the
trial court polled the jury on its multi-part special verdict favoring the plaintiff, but on
one question in the verdict form the court inadvertently failed to obtain an answer from a
juror, resulting in only eight jurors affirming their vote on that issue. The verdict was
recorded without objection by the defendants. Our Supreme Court interpreted Code of
Civil Procedure section 6182 as creating a rebuttable presumption that if a verdict appears
correct, it is complete unless there is an affirmative showing during polling to the
contrary. (Id. at p. 257.) “It follows that, as here, a juror's mere silence at polling,
brought about by the trial court's failure to poll the juror on one of multiple special
verdict questions, does not constitute an expressed disagreement with the verdict under
section 618, and hence that this statute provides no basis under the present circumstances
for a court to decline to uphold the verdict as set out in the jury's special verdict form.”
(Id. at p. 259.) Moreover, in the absence of an objection to the polling process, the
defendants’ forfeited their contention that the failure to poll one juror on one issue in the
verdict rendered that portion of the verdict invalid. (Id. at p. 262.)
Unlike Jeld-Wen, polling in this case was never completed, nor was the verdict
ordered recorded as read. The trial court discovered during the polling process that all 12
jurors had not participated in a significant portion of deliberations and did not vote on
2 Code of Civil Procedure section 618 provides as follows: “When the jury, or
three-fourths of them, have agreed upon a verdict, they must be conducted into court and
the verdict rendered by their foreperson. The verdict must be in writing, signed by the
foreperson, and must be read to the jury by the clerk, and the inquiry made whether it is
their verdict. Either party may require the jury to be polled, which is done by the court or
clerk, asking each juror if it is the juror's verdict. If upon inquiry or polling, more than
one-fourth of the jurors disagree thereto, the jury must be sent out again, but if no
disagreement is expressed, the verdict is complete and the jury discharged from the case.”
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any of the questions presented after Question No. 1. The court’s decision to stop the
polling process upon discovering all 12 jurors had not deliberated was entirely consistent
with California law. The Jeld-Wen court cited Resch v. Volkswagen of America, Inc.
(1984) 36 Cal.3d 676, 679 (Resch), for the proposition “regardless of the jurors’ votes on
other special verdict questions . . . each juror should participate as to each special verdict
submitted.” (Weld-Jen, supra, 46 Cal.4th at p. 255.) In Juarez v. Superior Court (1982)
31 Cal.3d 759, 768, our Supreme Court held that “if nine identical jurors agree that a
party is negligent and that such negligence is the proximate cause of the other party's
injuries, special verdicts apportioning damages are valid so long as they command the
votes of any nine jurors. To hold otherwise would be to prohibit jurors who dissent on
the question of a party's liability from participation in the important remaining issue of
allocating responsibility among the parties, a result that would deny all parties the right
to a jury of 12 persons deliberating on all issues.” (Italics added.) In light of these
binding decisions, the trial court acted within its power to control the proceedings by
discontinuing the polling process before the verdict was complete and recorded. Unlike
Jeld-Wen, there was never a complete verdict in this case and Richard was not entitled to
entry of judgment.
III
Connie contends the trial court erred in granting Girardi’s motion for nonsuit
against her in Trial I. Girardi’s written motion contended the law firm owed no duty to
Connie, and Connie’s evidence and testimony were insufficient as a matter of law to
establish liability.
A motion for nonsuit requires consideration of the evidence presented by a
plaintiff at trial. Here, we have no reporter’s transcript of any testimony in Trial I. As a
result, there is no basis to consider the merits of Connie’s contention, as the record is
entirely inadequate for meaningful appellate review. With no record of the evidence
presented at trial, we apply the settled rule of law that the judgment is presumed to be
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correct. Connie has made no showing of error, or that any error was prejudicial. (Cal.
Const., art. VI, § 13.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Girardi & Keese.
KRIEGLER, J.
We concur:
TURNER, P. J.
MINK, J.*
* Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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