Calvo, Fisher & Jacob v. Lujan CA1/2

Filed 7/28/14 Calvo, Fisher & Jacob v. Lujan CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

CALVO FISHER & JACOB LLP,
Plaintiff and Respondent,
A138210 & A138610
v.
DAVID J. LUJAN, (San Francisco City & County
Super. Ct. No. CGC-10-498299)
Defendant and Appellant.

A prominent Guam attorney was sued in two lawsuits in Hawaii, followed by a
third lawsuit in California, the last of which, were it to succeed, could have cost the
attorney millions of dollars, loss of his reputation, and perhaps his license to practice law.
The attorney hired a law firm with offices in San Francisco and Guam to represent him, a
representation that quickly came to include the filing of two more proceedings. The
representation was vigorous indeed, and quickly generated significant billings about
which the attorney came to complain, ultimately refusing to pay a large balance.

The firm withdrew from the representation, and sued. Following a lengthy jury trial, the
jury returned a verdict for the firm of $945,947.90, the full amount sought. The trial
court later awarded $331,545.51 in prejudgment interest. The attorney appeals, making
three arguments, that the trial court erred in: (1) excluding two items of evidence; (2)
denying his motion for new trial; and (3) awarding prejudgment interest. We conclude
that none of the arguments has merit, and we affirm.

1
 BACKGROUND
The Setting: The Parties, the Participants, and the Proceedings
Appellant David Lujan is an attorney in Guam, the senior partner in the firm of
Lujan, Aguigui & Perez LLP. Lujan is very experienced, having done “hundreds of
trials,” and is apparently well regarded, having represented many high profile people,
including governors, lieutenant governors, and other politicians, in Guam and the
Commonwealth of the Northern Mariana Islands. But it was his representation of a
minor named Junior Larry Hillbroom (Junior) that would lead to the appeal before us
here.
In 1995, Lujan took on the representation of Junior, seeking to prove that Junior
was an heir of Larry Hillblom (Hillblom), one of the founders of DHL Worldwide
Express, who disappeared while piloting an airplane near Saipan. Lujan’s efforts on
behalf of Junior were successful, with Junior ultimately receiving some $90 million from
Hillblom’s estate. Lujan received a contingency fee, apparently of 38 percent.
The settlement with the estate closed in April 2000, but Lujan’s involvement with
Junior continued. As Lujan described it at trial, “You know, just because the probate
closed did not mean it’s completely over, because there were assets that were distributed
to what we call a liquidated trust . . . and so the liquidated trust was formed . . . .” Keith
Waibel was designated as trustee of Junior’s trust, with Lujan to serve as a “protector”
who oversaw the trustee. Lujan continued on in his role as protector (and perhaps other
roles as well) over the course of several years, during which he received substantial sums
of money in connection with those services—substantial sums of money that led to Lujan
being sued. Specifically:
In October 2008, two actions were filed in Hawaii, filed by Waibel, as trustee of
the JLH Trust and the JLH Pacific Trust (the Hawaii actions). The Hawaii actions
essentially sought to recover monies the trustee claimed were owed the trusts by Lujan
and his wife. The Hawaii actions were relatively modest in scope, one involving
$250,000 or less, the other a dispute with Waibel whether Lujan’s monthly fees should be
reduced. The next action was far more serious.

2
 In February 2009, Junior, now having reached the age of majority, filed suit in the
United States District Court for the Central District of California, in an action entitled
Junior Larry Hillbroom v. David J. Lujan, Barry J. Israel, and Keith A. Waibel, case
no. CV 09-0841 (the California action). The California action was filed on behalf of
Junior by the firm of Girardi Keese, a prominent plaintiff’s law firm in southern
California, and alleged claims for legal malpractice, breach of fiduciary duty, fraud, civil
conspiracy, violations of 18 U.S.C. § 1961 et seq. (RICO), and violations of Business and
Professions Code section 17200 et seq. The thrust of the California action was that Lujan
conspired with Waibel (Junior’s former guardian and the then-current trustee of his
trusts) and Barry Israel (Lujan’s co-counsel during his representation of Junior as a
minor) to fraudulently increase the contingent fee in Junior’s recovery from the Hillblom
estate from 38 percent to 56 percent. The California action sought to recover millions of
dollars, including punitive damages against Lujan.
It was at this point that Lujan turned to Eduardo Calvo.
Calvo is a lawyer in Guam, and the senior name partner in the firm of Calvo &
Clark, which had offices in Guam and San Francisco.1 Calvo was well known to Lujan,
as Calvo had been involved as an attorney in the Hillbloom probate with whom Lujan
had worked closely. And following the close of probate, Calvo had referred significant
business to him. As Lujan described it, throughout the years, he and Calvo spent
“hundreds of days and evenings . . . together” and, “I thought we were friends.” 2 Thus,
and because Calvo had practiced in Hawaii, Lujan decided to retain Calvo to represent
him. In short, Calvo and the manner in which he represented his clients were well known
to Lujan.

1
Calvo & Clark is now known as Calvo Fisher & Jacob LLP.
2
In fact, Lujan noted, “[A]fter the probate closed, I was approached by Mr. Calvo
. . . , and what I was offered, you know, to become a partner in their firm, you know, to
head the litigation, their litigation. Okay. [¶] And so I turned that down, but they, you
know, asked me to co-counsel, you know, in several large cases, which I did. And so we
spend, you know, throughout the years, hundreds of days and evenings, you know,
together and we worked, we were able to work together.”

3
 In February 2009, Calvo & Clark prepared, and Lujan and his wife signed, a letter
referenced “Engagement of Legal Services” (engagement letter) The engagement letter
was four pages long, single spaced, and began with confirmation of Calvo & Clark’s
“understanding that we will provide you with representation” in the Hawaii and
California actions. The letter then described “the basis upon which we will provide legal
services and bill for our services,” followed by six numbered subjects. The first was
entitled “(1) Professional Undertaking,” and provided as follows: “Professional
Undertaking: The most important point in this letter is that we would undertake to do
our utmost to serve you effectively. I [Calvo] would have primary responsibility for such
representation, and would utilize other attorneys and staff, as appropriate, in the best
exercise of my professional judgment, based on their expertise, availability and general
efficiency of work, administration and cost. . . . Given our firm does not have an office
in Honolulu or actively licensed members of the Hawaii State Bar, our firm will have to
associate with counsel in Honolulu and seek admission to appear in the Hawaii cases as
described.”
The remaining subjects were labeled: (2) fees, (3) costs, (4) Guam gross receipts
tax, (5) billings, and (6) no retainer. The language of two of these subjects, those
numbered (2) and (4), is particularly germane to specific issues discussed below and will
be set forth in connection with that issue.
Lujan became involved in two more lawsuits after the engagement letter was
signed, and the parties agreed that the agreement would also cover these lawsuits. The
first of these lawsuits was filed in April 2009, by Calvo & Clark on behalf of Lujan in the
Guam Superior Court (the Guam action). The Guam action alleged among other things a
claim for defamation against Girardi Keese, based on statements made to the press in
Guam concerning Lujan’s earlier representation of Junior. The Guam action also
asserted claims against Waibel and others, seeking to recoup monies Lujan asserted he
was owed by Waibel, Junior, and one of the trusts under the contingency fee agreement.
The second post-engagement letter proceeding was Calvo & Clark’s filing on
Lujan’s behalf a motion to reopen and unseal the Guardianship of Junior Larry

4
Hillbroom, Special Proceeding, Guam Superior court number JP0624-95 (the
guardianship action). The guardianship action arose out of Calvo & Clark’s defense of
Lujan in the California action, where it developed that some pleadings and/or orders filed
in the guardianship proceedings, now closed with the record sealed, might be necessary
to the defense in the California action (and perhaps prosecution of the Guam action).
That is, it appeared that Junior’s counsel would cite or quote from the pleading if helpful
to their case. But if a sealed record was damaging, they would assert it could not be
publicly disclosed because it was under seal.
As noted, Calvo had “primary responsibility” for representation of Lujan, but
many other lawyers at his firm would also become involved. In addition to Calvo, other
attorneys at Calvo & Clark whose names will be mentioned are Kathleen Fisher, William
Hebert, and Rodney Jacob. Fisher and Hebert practiced in the San Francisco office,
Jacob in Guam.
The parties devote significant portions of their briefs to discussions of what was
done in connection with the various proceedings, most significantly early in the
California action, and whether Calvo & Clark’s efforts were necessary or successful.3
Not surprisingly, the accounts differ markedly. We see no need to weigh in on this
dispute, as it is not pertinent to the issues Lujan raises here.
A few things are undisputed, however, and bear brief mention here. The first is
that Calvo & Clark devoted significant resources to its representation of Lujan, and
quickly generated significant legal fees. A second undisputed fact is that Lujan
complained about the size of the bills and fell behind in paying them. A third is that the
relationship was one where the client and his lawyers were in constant contact and
communication, with testimony from Lujan and his expert witness, testifying from
Lujan’s own time records, confirming that in the months of February, March, April and

3
We do note that Lujan was eventually dismissed from the California action on
jurisdictional grounds.

5
May, they talked essentially every day, sometimes multiple times a day.4 A final
undisputed matter is that by March 2010 the representation was over, Calvo & Clark
having withdrawn.
As of that point, Lujan had paid Calvo & Clark $326,180, with the firm claiming a
balance owed of some $1,120,000. Calvo & Clark tried to negotiate resolution of the
outstanding balance with Lujan, to no avail, leading to the action here.
The Underlying Action
In April 2010, Calvo & Clark filed a complaint for damages in San Francisco
Superior Court. The complaint alleged claims for breach of contract, common count,
quantum meruit, and account stated. The breach of contract claim sought damages of
$1,181,034, plus prejudgment interest; the other three claims sought $1,027,435.89.
In December 2010, Lujan filed an answer and a cross-complaint. The
cross-complaint asserted 10 causes of action against Calvo & Clark, styled as follows:
(1) legal negligence; (2) breach of contract; (3) fraud in the inducement; (4) negligent
and/or intentional non-disclosure of material facts; (5) bad faith; (6) unjust enrichment;
(7) breach of fiduciary duty; (8) negligent misrepresentation; (9) abuse of process; and
(10) accounting.
Over the following months, Calvo & Clark filed demurrers and motions, the effect
of which was to eliminate all of Lujan’s claims except for breach of contract and breach
of the covenant of good faith and fair dealing. Along the way Calvo & Clark’s
noncontract claims went by the wayside, the upshot of which was that the matter
proceeded to trial with each side asserting essentially its contract-based claims, including
Lujan’s bad faith claim. And Calvo & Clark’s damage claim was now $945,947.90.
The Trial
The case proceeded to jury trial, which began on November 7, 2012, with motions
in limine. The motions were extensive, and argument on them proceeded over three

4
The communications were both by telephone and in person, as Lujan’s office
was some 200 feet from that of Calvo & Clark.

6
days. We do not know whether argument on the motions was reported, as no reporter’s
transcripts are in the record. The orders reflecting the various rulings are.
Testimony began on November 16 and was taken over 18 days. On December 12,
after the close of Lujan’s case on his cross-complaint, Calvo & Clark moved for nonsuit,
which the court granted. Thus ended Lujan’s action against Calvo & Clark, a ruling
which Lujan has not pursued on appeal.5
On December 17 the jury returned its verdict for Calvo & Clark, awarding it
$945,947.90, the full amount sought.
The Motion for Prejudgment Interest
Four days later, on December 21, Calvo & Clark filed a motion for prejudgment
interest, seeking interest of 18 percent pursuant to the engagement letter. The trial court
ultimately awarded Calvo & Clark interest, not at the rate requested, but at the rate of
10 percent, awarding $331,545.51. As noted, Lujan attacks the award of prejudgment
interest, and the details of how the award came to be will be discussed below.
The Judgment and Order
On January 3, 2013, the court filed its judgment, which provided in pertinent part
as follows: “NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED
that Calvo have and recover from Lujan the sum of $945,947.90 together with its
disbursements and costs, including expert witness fees, in the amount of $_________,
prevailing party attorneys’ fees as allowed by contract in the amount of $________, and
pre-judgment interest as allowed by contract in the amount of $________.”
On March 4, Lujan filed a notice of appeal from the judgment entered on
January 3 (case no. A138210).
On March 5, the court held a hearing on the motion for prejudgment interest.
On May 6, Lujan filed a notice of appeal that states that Lujan appeals “to
challenge the court’s decision awarding plaintiff prejudgment interest (case no. 139610).

5
It is true that on February 15, 2013, Lujan filed a notice of appeal from the “trial
court’s order dated December 17, 2012 granting [Calvo & Clark’s] motion for nonsuit.”
However, no argument in his brief addresses the issue.

7
The hearing on that motion was held on March 5, 2013. Lujan does not know at this time
whether a written order has been entered by the court on that motion but assumes that one
was entered.”
On August 5, the court filed its order on the motion for prejudgment interest.
We ordered the appeals consolidated.
DISCUSSION
The Trial Court Did Not Err In Excluding Evidence
Lujan’s first argument is that the trial court erred in excluding two items of
evidence, the first of which was evidence concerning gross Guam receipts tax. As Lujan
frames it, “The trial court’s absolute exclusion of testimony showing that Calvo &
Clark’s San Francisco-based attorneys could charge a Guam-specific tax for work done
outside Guam was based on an incorrect interpretation of the Engagement Letter.” The
argument has three subparts, as follows: (1) “The plain meaning of the Engagement
Letter reveals the Guam Gross Receipts Tax surcharge applied only for work performed
in Guam”; (2) principles of contract interpretation mandate that the provision should
have been interpreted against Calvo & Clark; and (3) the trial court improperly
interpreted the engagement letter. The argument has no merit, not in light of the record
below.
Paragraph 4 of the engagement letter reads as follows: “Guam Gross Receipts
Tax: It is our firm policy that our fees are net of taxes. In order that the fees be net of
taxes we add a surcharge to cover the cost of our gross receipts tax. This would be part
of any invoices and would be separately itemized. The surcharge, however, is considered
an additional component and a part of our legal fees.”
Lujan’s argument is that “[t]he foregoing provision provides that Calvo & Clark
will ‘add a surcharge to cover the cost of our gross receipts tax’ but fails to state that
surcharge shall apply to work performed outside of Guam. In fact, Lujan attempted to
present evidence that Lujan and Calvo & Clark agreed to limit the gross receipts tax
based on an understanding that tax for services outside Guam would not be charged, but

8
the trial court erroneously precluded that evidence based on the parol evidence rule.” This
is hardly an accurate statement of the proceedings below.
The accurate record begins with a discussion of Calvo & Clark’s in limine motion
number one, which sought among other things “an order in limine that the parties’ written
Engagement Agreement is integrated, and to exclude parol evidence regarding the
parties’ oral understanding, interpretation, and implied terms of the Agreement expected
to be offered by Defendant and Cross-Complainant David Lujan at trial; specifically:
[¶] 1. The Guam Gross Receipts Tax would not be charged for work in the California
action . . . .”
That motion was, as noted, argued before trial, and on November 9, 2012, the trial
court entered its order on it, as follows: “IT IS HEREBY ORDERED that Calvo’s
Motion in Limine No. 1 is GRANTED IN PART AND DENIED IN PART as follows:
[¶] 1. Motion in Limine No. 1 to exclude all argument and evidence that the Guam Gross
Receipts Tax would not be charged for work done by Calvo during its representation of
him in all matters is GRANTED . . . .”
As also noted above, there is no reporter’s transcript on the in limine arguments,
so we do not know what was said at the argument or the actual basis of any ruling by the
trial court. This is most unhelpful to Lujan. As a leading practice treatise puts it,
“Transcript may be essential for appellate review: Unless a court reporter is present,
the losing party may have no effective way of challenging the court’s ruling by writ or
appeal; ‘In the absence of a transcript, the reviewing court will have no way of
knowing . . . what grounds were advanced, what arguments were made, and what facts
may have been admitted, mutually assumed or judicially noticed at the hearing. In such a
case, no abuse of discretion can be found except on the basis of speculation.’ [Snell v.
Sup.Ct. (Marshall Hosp.) (1984) 158 CA3d 44, 49 (emphasis added); see also GT, Inc. v.
Sup.Ct. (Santa Cruz Sentinel Publishers, Inc.) (1984) 151 CA3d 748, 756] [¶] [9:173]
PRACTICE POINTERS: If you are appearing in a court in which law and motion
hearings are not regularly recorded, and there is the slightest chance you would seek
appellate review if the judge rules against you, be sure to have a court reporter present!”

9
(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group
2014) ¶ 9.172–9.173, pp. 9(l)-132.)
As Lujan’s brief acknowledges, “[g]enerally, a trial court’s ruling on the
admissibility of evidence is reviewed for an abuse of discretion.” As the above
authorities demonstrate, such review is precluded by the absence of a transcript. (See
generally Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; Parker v.
Harbert (2012) 212 Cal.App.4th 1172, 1178; Nielsen v. Gibson (2009) 178 Cal.App.4th
318, 324.)
Lujan’s argument on this issue includes that the trial court should have allowed
evidence that “Calvo & Clark charged the Guam Gross Receipts Tax on every payment
made by Lujan.” This, Lujan claims, would have reduced the jury award, because “Calvo
& Clark were not permitted to impose a surcharge for a tax that did not exist.” This
argument fails, because the evidence Lujan says the trial court excluded was in fact
presented to the jury. And Lujan’s argument that Calvo & Clark incorrectly applied the
gross receipts tax is false. Put succinctly, not only did Lujan fail to offer any evidence to
support his claim, but the actual evidence refutes it.
First, Lujan is wrong when he claims that the trial court excluded evidence of how
often the gross receipts tax was billed to him. To the contrary, every invoice from Calvo
& Clark was introduced, and every one shows the amount of gross receipts tax for which
Lujan was billed. Lujan cannot seek reversal of the judgment based on exclusion of
evidence that was, in fact, not excluded.
Second, Lujan claims Calvo & Clark charged him for the gross receipts tax even
when the firm did not have to pay that tax, asserting that it did not pay the gross receipts
tax “for services outside Guam.” But at no point did Lujan offer any evidence to support
this claim. Lujan made no offer of proof—not through proffered testimony, not with
reference to regulations or statutes, not by any other means—to show that the firm “was
improperly adding a surcharge to his bills.” Judgments “cannot be set aside on the
ground that the court erroneously excluded evidence unless the substance, purpose and
relevance of the excluded evidence were made known to the court by an offer of proof or

10
by other means.” (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103,
1113.) In the absence of any evidence to support Lujan’s claim, it cannot succeed.
(Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [appellant bears the burden to provide a
sufficient record for review].)6
Lujan’s second claim of evidentiary error is that the trial court abused its
discretion when it denied his motion to reconsider the in limine ruling concerning hourly
rates, a claim that, once again, requires reference to the engagement letter and a motion in
limine.
Section 2 of the engagement letter, entitled “Fees,” provides that Calvo & Clark’s
“fee will be based on the hourly rate applicable to the attorney’s home office.” Calvo &
Clark filed an in limine motion to exclude parol evidence concerning this language,
because “[o]n its face, this provision unambiguously acknowledges that hourly rates
charged for an individual attorney will be tied to the rates of that attorney’s home office.”
The trial court agreed, its order reading in pertinent part as follows: “Motion in Limine
No. 1 to exclude all argument and evidence that San Francisco based attorneys billing
San Francisco rates would not be used in the Hawaii cases and Guam matters is
GRANTED.”
Lujan does not challenge that ruling on appeal. Rather, he argues that a later
motion to reconsider was improperly denied, contending that testimony adduced at trial
constituted “significant conflicting evidence” regarding the fee provision. The
conflicting evidence Lujan cites is testimony where, he claims, Calvo said “that attorney
William Hebert was billing his Guam rate, not his San Francisco rate.” Because of this
claimed conflict, Lujan argues, the trial court should have reconsidered its in limine

6
We note that not only does Lujan fail to provide any support for this argument,
he also fails to note that the only evidence in the record was to the contrary. Specifically,
in support of its motion for summary judgment, Calvo & Clark had offered
uncontroverted evidence that the gross receipts tax is “based on the total amount of legal
fees received from [Calvo & Clark’s] clients,” and further that “each time [Lujan] made a
payment of legal fees to Calvo & Clark, it made a corresponding payment of the Guam
[gross receipts tax.]”

11
ruling, and its failure to do so “preclude[d] Lujan’s attempt to proffer testimony that
Calvo & Clark’s San Francisco attorneys were improperly billing San Francisco rates
outside California.” The argument fails, for several reasons.
To begin with, we review a denial of a motion for reconsideration for abuse of
discretion. (Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 106;
Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) We find no abuse, and Lujan
certainly does not demonstrate any, not in light of the record here. There was no
conflicting evidence about the rate Hebert was charging, much less “significant”
conflicting evidence.
Throughout Calvo & Clark’s representation of Lujan, Hebert was billed at his San
Francisco rate, not his Guam rate. All of Calvo & Clark’s bills were in evidence, and all
showed Hebert billing at $500 per hour. Hebert himself testified he charged Lujan $500
per hour. No evidence—no testimony, no document—showed Hebert ever billing any
other rate.7
The two record references to which Lujan points—reporter’s transcript pages 580
and 1099-1100— do not support his position.8 The first citation is to testimony about an
estimate of fees that Hebert later prepared during litigation. That estimate—which
Hebert described as a “sort of back of the envelope calculation” and a “best guess of what
we’d be doing over the next three months”—estimated the average rate for attorney fees
in the California action at $350. Lujan does not explain how this estimate indicates that
Hebert was charging his Guam rate.
Beyond that, the testimony itself, which Lujan does not quote, is devastating. It
demonstrates that Calvo did not say Hebert was billing at $350, but rather that the $350
per hour figure did not include Hebert’s time. Thus:

7
It was clear from the engagement letter that $500 per hour had to be a San
Francisco billing rate, the letter explaining that the top hourly rate for attorneys in Guam
was $350 while the top hourly rate in San Francisco was $550.
8
Lujan’s brief also cites reporter’s transcript pages 1132-1133. Those pages deal
only with the argument on reconsideration, not evidence.

12
 “A. We used [the estimate] as a tool. I mean, it’s not anything that we were going
to produce in a formal document or—or make a request for fees. [¶] It was an internal
tool to try to figure out what was going on in these cases and how much time would be
involved, and what it would likely cost to get these things accomplished.
“For instance, obviously, in California, Bill Hebert was the lead attorney in the
California case. And he’s not included in any of these because his billable rate was
higher than 350.
“Q. Do you know why that—
“A. This is the—this is the Guam rate.”
Reporter’s transcript pages 1099-1100, the other record reference Lujan cites,
makes only the point that Hebert had two rates:
“Q. Okay. You have a California billing rate, do you not, or at least you certainly
did in 2009, correct?
“A. Yes.
“Q. At that time it was $500 per hour?
“A. Yes.
“Q. Okay. Did you have a Guam billing rate?
“A. Yes.”
In sum, contrary to Lujan’s assertion, there is no evidence that “Hebert was billing
his Guam rate, not his San Francisco rate.” The statements introduced in evidence in fact
show that during every month Hebert worked on Lujan’s cases, he was billed to Lujan at
his San Francisco rate, just as the engagement letter expressly stated.
Finally, the argument Lujan makes to us is not the argument he made below when
he sought reconsideration of the in limine ruling. Lujan did not argue in the trial court
that “Hebert was billing his Guam rate, not his San Francisco rate.” Rather, he argued
that Calvo may have had “a policy of charging Guam rates . . . for San Francisco lawyers
doing Guam work, and didn’t tell that” to Lujan. Whether Calvo & Clark may have had
such a policy, it had nothing to do with the issue here. The engagement letter set the

13
terms for Calvo & Clark’s representation of Lujan. Whatever agreement it may have had
with other clients was irrelevant.
In concluding the discussion on the issue of claimed evidentiary error, we are
constrained to note that neither of the two items about which Lujan complains—the
Guam gross receipts tax and the billing rate—were among the things Lujan expressed
concern about in his communications with the lawyers at Calvo & Clark. Specifically:
As mentioned above, early on Lujan expressed concern about the fees, and both
sides offered testimony about the conversations and meetings that ensued about the fees,
testimony that is most divergent. But some of what transpired on the subject is not
disputed, especially as it comes from Lujan himself. Such testimony includes that the
parties had discussions about the fees, and they also corresponded about the fees. This
correspondence was introduced in evidence at trial, and included a series of letters in
November 2010, including one from Lujan on November 30, which was testified about at
length.
That testimony revealed that Lujan’s letter was in response to a November 13
letter from Calvo, which had responded in detail to Lujan’s early protestations.
According to Lujan, prior to writing his November 30 letter, he had “spent approximately
60 hours of [his] own time reviewing the invoices.” Lujan’s letter went on to analyze the
services “for the five matters.” And nowhere in the letter did Lujan complain about the
quality of the work; rather, in Lujan’s words, “It’s the cost of the work is my complaint.”
Confirming this testimony on redirect, Lujan said his complaints were that the bills were
“too high” and that too many people worked on the matters. But of most significance
here, nowhere in the letter of November 30, or in any other letter, or in any of the
conversations Lujan claimed to have with any attorney at Calvo & Clark, did Lujan ever
mention, much less complain about, the Guam gross receipts tax or Hebert’s billing rate.
Lujan’s Motion for New Trial Was Properly Denied
Lujan’s second argument is that the trial court erred in denying his motion for new
trial, an argument phrased as follows: “In his motion for new trial, Lujan raised, among
other arguments, evidentiary errors that resulted in an excessive jury award. Specifically,

14
that the fees Mr. Eduardo Calvo incurred on the California Action should not have been
considered because Mr. Calvo engaged in the unauthorized practice of law in California
by not being admitted to the California bar.”
By way of background, Lujan’s motion for new trial asserted 11 grounds. Only
one claimed excessive damages. It was Argument E, which read as follows: “E. The
Jury Awarded Excessive Damages Based on Invoices That Were Submitted by Calvo in
Violation of California Law.” The argument itself was all of 20 lines, the first eight of
which were general observations about clarity in billing, the basis for calculation of
attorney fees, and related items. The entire substance of the “excessive damages”
argument was this: “In this particular case, however, virtually all of the time entries
submitted by Calvo—with very few exceptions—included block-billing; i.e., the practice
of commingling various services in one entry without segregating the amount of time
spent on each service. This violates the statutory language italicized above, thus
precluding Calvo from recovering fees for the block-billed services. Accordingly, the
court should aside [sic] the verdict, particularly in light of the erroneous admission of
expert testimony by Calvo that was inconsistent with this statutory standard. (See Day v.
Rosenthal (1985) 170 Cal.App.3d 1125, 1147 [standards set by the rules of professional
conduct for attorneys ‘cannot be changed by expert testimony’; superseded by statute on
other grounds]; CCP § 657, subd. (1) [evidentiary rulings by which improper evidence
was erroneously admitted may trigger a new trial when prejudicial to the moving party’s
right to a fair trial].)”
As is apparent, the motion did not claim excessive damages based on Calvo
“engag[ing] in the unauthorized practice of law in California by not being admitted to the
California bar.”
It is true that in his next argument on the motion for new trial, an argument styled
“The Court Improperly Precluded Lujan from Defending Himself and from Pursuing His
Affirmative Claims for Relief,” Lujan made the following assertion: “The court
erroneously granted various motions in limine that precluded Lujan from disputing the
bills presented by Calvo. For example, the court precluded testimony that San

15
Francisco-based attorneys, billing at the higher San Francisco rates, were not supposed to
be working or billing for work done in other jurisdictions (e.g., Hawaii and Guam). To
the extent that Calvo’s California attorneys were billing for work done in other
jurisdictions where a particular attorney was not licensed in those jurisdictions, Lujan
was legally entitled to defeat Calvo’s claim for such attorneys’ fees based on this
licensing issue. (See Birbrower, Montalbana, Condon and Frank v. Superior Court
(1998) 17 Cal.4th 119, 136 [‘It is a general rule that an attorney is barred from recovering
compensation for services rendered in another state where the attorney was not admitted
to the bar’].)” This, we conclude, is not sufficient.
As Calvo & Clark accurately puts it: “[I]n his motion for new trial, Lujan argued
Calvo should not be paid for work done by a California lawyer outside California
(although he cited no evidence to support this contention). His argument now is that
Calvo should not have been paid for work that a Guam attorney did in California. Lujan
never raised this claim below. He never sought to admit evidence of the alleged
unauthorized practice of law, and he did not raise this issue in limine, during trial, or in
his new trial motion.”
Faced with this, Lujan’s reply says only that “an objection is sufficient if it fairly
apprises the trial court of the issue it is being called upon to decide.” We conclude that
Lujan’s argument did not “fairly apprise the court of the issue,” and that the argument is
not before us.
As the leading treatise puts it: “New Theories Not Reviewable on Appeal: As a
general rule, theories not raised in the trial court cannot be asserted for the first time on
appeal; appealing parties must adhere to the theory (or theories) on which their cases
were tried. This rule is based on fairness—it would be unfair, both to the trial court and
the opposing litigants, to permit a change of theory on appeal; and it also reflects
principles of estoppel and waiver (¶8:244 ff.). [Greenwich S.F., LLC v. Wong (2010)
190 CA4th 739, 769, 118 CR3d 531, 554 (citing text); Giraldo v. California Dept. of
Corrections & Rehabilitation (2008) 168 CA4th 231, 251, 85 CR3d 371, 386 (citing
text); People ex rel. Dept. of Transp. v. Super. Ct. (Isenhower) (2003) 105 CA4th 39, 46,

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(citing text); Brown v. Boren (1999) 74 CA4th 1303, 1316, 88 CR2d 758, 767 (citing
text); citation.].” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The
Rutter Group 2013) § 8:229, p. 8-156.)
Beyond that, the record reveals that Calvo & Clark moved in limine to exclude all
argument and evidence regarding Calvo’s alleged unauthorized practice of law unless
Lujan made an offer of proof substantiating his claim. Lujan made no offer of proof and,
indeed, did not even oppose the motion, the court’s order reading as follows: “Motion in
Limine #5F to exclude all argument and evidence of unsupported allegations that Calvo
engaged in the unauthorized practice of law is unopposed and GRANTED.” (Italics
added.)
In sum, Lujan did not oppose Calvo’s motion in limine, made no offer of proof
regarding the claimed unauthorized practice of law, and did not raise this claim at any
time prior to appeal. The claim must fail. (See Mangano v. Verity, Inc. (2009)
179 Cal.App.4th 217, 221 [defendant who failed to oppose in limine motion to exclude
evidence forfeited his ability to argue in a motion for new trial and on appeal that the
evidence was improperly excluded].)
The Award of Prejudgment Interest Was Proper
Lujan’s final argument is that the award of prejudgment interest must be reversed.
Lujan does not contest the $331,545.51 amount of the award. Rather, he makes an all or
nothing claim, that Calvo & Clark should recover nothing, on the basis that Calvo &
Clark failed to follow the proper procedure for seeking prejudgment interest. This is
Lujan’s argument: “[A] trial court cannot award prejudgment interest after judgment is
entered unless the party seeking such relief first files a motion for new trial in order to
recover prejudgment interest. (See North Oakland Medical Clinic v. Rogers (1988)
65 Cal.App.4th 824, 831 [(Rogers)] [‘requests for prejudgment interest . . . by a
successful plaintiff must be made by way of motion prior to entry of judgment, or the
request must be made in the form of a motion for new trial no later than the time allowed
for filing such a motion’] [emphasis added].)”

17
 It is probably enough to note that Lujan’s premise—that a party must file a
“motion for new trial”—is undercut by Lujan’s own quotation from Rogers, supra,
65 Cal.App.4th at p. 831, which states a request for prejudgment interest can be made in
two ways, one of which is by a motion prior to entry of judgment. As alluded to above,
and discussed in detail below, Calvo & Clark filed such a motion on December 21, 2012,
before the judgment of January 13, 2013. Calvo & Clark proceeded properly.
Rogers, an opinion authored by our own Presiding Justice Kline, is the leading
case on the proper procedure to obtain prejudgment interest. The issue there arose when
prevailing plaintiffs filed a memorandum of costs but did not request prejudgment
interest. Judgment was entered and the court denied defendants’ motion for new trial.
Plaintiffs then inserted an award of interest in the proposed order presented to the trial
court, which the court granted. We held that was error. But our holding in Rogers does
not avail Lujan, where we observed as follows:
“Under [Civil Code] section 3287, subdivision (b) the court has discretion to
decide whether prejudgment interest should be awarded on an unliquidated contractual
claim. It is up to the judge to determine the date from which interest runs, but in no event
may the court fix a date earlier than the filing of the action. (George v. Double-D Foods,
Inc. (1984) 155 Cal.App.3d 36, 47–48; Wegner et al., Civil Trials [and Evidence (The
Rutter Group 2013)] ¶ 17:189, [p. 17-151].)
“The parties agree that there is no authority mandating any particular procedure
for securing an award of prejudgment interest. However, certain general principles
apply:
“That a party is entitled to prejudgment interest does not make an award automatic
(except in the case of postjudgment interest). A request for interest must be made in the
trial court; it cannot be made for the first time on appeal. (Wegner, Civil Trials, supra,
¶ 17:194, [p. 17-152]; Peoples Finance etc. Co. v. Mike-Ron Corp. (1965)
236 Cal.App.2d 897, 904.)
“A general prayer in the complaint is adequate to support an award of prejudgment
interest. ‘No specific request for interest need be included in the complaint; a prayer

18
seeking “such other and further relief as may be proper” is sufficient for the court to
invoke its power to award prejudgment interest. [Citations.]’ (Wegner, Civil Trials,
supra, ¶ [17:195, p. 17-152]; Segura v. McBride [(1992)] 5 Cal.App.4th 1028, 1041;
Newby v. Vroman (1992) 11 Cal.App.4th 283, 286.) . . . .
“The trial judge, not the jury, determines a prejudgment interest award on
unliquidated damages. (George v. Double-D Foods, Inc., supra, 155 Cal.App.3d at p. 47;
Wegner, Civil Trials, supra, ¶ 17:189, [p. 17-151].) [¶] . . . [¶]
“The issue here is not whether plaintiffs’ complaint adequately invoked the court’s
power to award prejudgment interest, should plaintiffs prove entitled to interest. Rather,
the question we address is whether plaintiffs timely requested the court to exercise its
power to determine whether plaintiffs were entitled to interest under [Civil Code]
section 3287 in circumstances where damages had been awarded but no interest was
included in the verdict and where neither court nor jury had determined whether the
damages were liquidated or unliquidated. Our answer is no.
“The parties acknowledge that no statute or rule of court establishes a procedure
for requesting an award of prejudgment interest, or a time limit therefor, in the superior
court. . . . [¶] . . . [¶]
“It is well established that prejudgment interest is not a cost, but an element of
damages. [Citations.] This distinction persuades us that the cost bill is not an appropriate
vehicle for requesting interest under [Civil Code] section 3287. In our view, prejudgment
interest should be awarded in the judgment on the basis of a specific request therefor
made before entry of judgment. This view is buttressed by California Rules of Court,
[former] rule 875, which provides: ‘The clerk shall include in the judgment any interest
awarded by the court and the interest accrued since the entry of the verdict.’ (Cal. Rules
of Court, [former] rule 875.)
“It further appears that, at the latest, a request for prejudgment interest under
[Civil Code] section 3287 may be sought as part of a motion for new trial pursuant to
Code of Civil Procedure section 657, on the grounds of ‘[e]xcessive or inadequate

19
damages.’ (Code Civ. Proc., § 657, [¶] 5.)” (Rogers, supra, 65 Cal.App.4th at
pp. 829-830, fn. omitted.)
And so we concluded: “Pending the promulgation of a rule by the Judicial
Council, which we think appropriate, requests for prejudgment interest under [Civil
Code] section 3287 by a successful plaintiff must be made by way of motion prior to
entry of judgment, or the request must be made in the form of a motion for new trial no
later than the time allowed for filing such a motion. (Code Civ. Proc., § 659.)” (Rogers,
supra, 65 Cal.App.4th at p. 831.)
Rogers demonstrates that Calvo & Clark’s request for prejudgment interest was
timely.
As indicated above, the jury returned its verdict on December 17, 2012. On
December 21, Calvo & Clark filed its motion for prejudgment interest. The motion listed
as the hearing date “TBA,1” indicating in the footnote that “Counsel in the
above-captioned matter have stipulated to a briefing schedule for post-trial motions and
have agreed to confer with the court to reach a mutually acceptable hearing date for those
motions. Counsel intends for this motion to be heard in conjunction with the parties’
other pre-trial motions, and thus has not selected a hearing date for this motion at this
time.” Later, on January 3, Lujan’s attorney agreed to a February 27 hearing date on the
motion for prejudgment interest, going on to move the court for an additional 45 days
postponement of the hearing date.
Meanwhile, on January 3, 2013, the court entered a judgment that provided as
follows: “NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that
Calvo have and recover from Lujan the sum of $945,947.90 together with its
disbursements and costs, including expert witness fees, in the amount of $________,
prevailing party attorneys’ fees as allowed by contract in the amount of $________, and
pre-judgment interest as allowed by contract in the amount of $________.” In short, the
judgment itself—not incidentally, “approved as to form” by Lujan’s attorney—indicated
that prejudgment interest was an issue.

20
 Steiny & Co. v. Cal. Elec. Supply Co. (2000) 79 Cal.App.4th 285 is persuasive.
There, the parties stipulated that the court would determine the amount of prejudgment
interest after entry of judgment, even though the plaintiff had not made a request before
entry of judgment. (Steiny, supra, 79 Cal.App.4th at p. 290.) On appeal, the defendant,
like Lujan, disregarded the stipulation and claimed plaintiff’s motion was too late. (Id. at
p. 294.) The court easily rejected the argument:
“Finally, Morley asserts that Steiny’s failure to seek prejudgment interest prior to
the entry of the stipulated judgment defeats the claim for interest, citing North Oakland
Medical Clinic v. Rogers[, supra,] 65 Cal.App.4th 824, [at pp.] 830-831 (prejudgment
interest may not be sought by inserting amount at last minute in cost award, without
notice to other party, and after verdict and postjudgment motions for new trial and to tax
costs had been heard and decided).
“Civil Code section 3287 creates the right to prejudgment interest on damages. As
the court in North Oakland noted, neither section 3287, nor any other rule, specifies when
prejudgment interest must be sought. The court concluded that there must be some
deadline, and that such a request made after judgment and after completion of
postjudgment proceedings, without notice to the adversary, is too late.
“The present case bears no resemblance to the extreme facts in North Oakland.
Steiny requested interest in its complaint, and Morley stipulated before judgment was
entered that Steiny’s request for interest would be adjudicated in a postjudgment hearing.
“The award of postjudgment interest was proper.” (Steiny, supra, 79 Cal.App.4th
at p. 293.)
Calvo & Clark’s request for prejudgment interest was timely, and Lujan was not
denied notice or an opportunity for a hearing. To the contrary, Lujan agreed to a form of
judgment that included a provision for prejudgment interest, agreed to the briefing

21
schedule he now criticizes, and stipulated to the motion being heard after entry of
judgment.9
DISPOSITION
The judgment and order appealed from are affirmed. Calvo, Fisher & Jacob shall
recover its costs on appeal.

_________________________
Richman, J.

We concur:

_________________________
Kline, P.J.

_________________________
Brick, J.*

9
In one paragraph at the conclusion of its respondent’s brief, Calvo, Fisher &
Jacob “moves the court” for an award of attorney fees on appeal. We will not consider
the request, especially as the issue of attorney fees is the subject of a separate appeal
currently pending before this court. (Calvo Fisher & Jacob LLP v. Lujan,
case no. A139863.)
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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