Wright Graphics v. Owens CA2/1

Filed 3/22/16 Wright Graphics v. Owens CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

WRIGHT GRAPHICS, INC., et al., B257411

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. PC053986)
v.

LEON OWENS et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County,
William F. Fahey, Judge. Affirmed.
Ezra Brutzkus Gubner, Brutzkus Gubner Rozansky Seror Weber, Larry W.
Gabriel and Joseph M. Rothberg for Plaintiffs and Appellants.
Greenberg & Bass, James R. Felton and John R. Yates for Defendants and
Respondents.
——————————
 Wright Graphics, Inc. (Wright Graphics) and its founder, Daniel Wright (Wright)
(collectively, Plaintiffs) appeal from an amended judgment on a jury verdict, claiming
that the trial court committed prejudicial error regarding (a) the admissibility of certain
expert testimony and (b) the application of a set-off from the good faith settlement of a
prior related action. We disagree with Plaintiffs and, accordingly, affirm the judgment.
BACKGROUND
I. Wright Graphics
In approximately 1992, Wright and his wife founded Wright Graphics, a
commercial printing company. Wright Graphics serviced the printing and
mailing/delivery needs of a number of companies, including the Los Angeles Dodgers,
J.D. Power and Associates, Honda, Starbucks, AT&T, and Verizon. Wright Graphics’
“high watermark” with respect to sales was reached in 2007, when it earned
approximately $17 million in sales.
After 2007, however, Wright Graphics entered a period of rapid decline. In 2008,
sales dropped to $14.4 million. In 2009, sales were projected to be $2-3 million lower
than in 2008. The company went from having approximately 200 employees in 2007 to
only 85 by July 2009. By the beginning of October 2009, Wright Graphics was down to
just 20-25 employees; two weeks later, the company’s last remaining employees were
laid off.
II. Wright Graphics and InterPrint
In 2008, Wright initiated discussions with InterPrint, L.L.C. (InterPrint), another
printing company. Between April 2008 and July 2008, Wright had numerous discussions
with InterPrint regarding the sale of Wright Graphics to InterPrint or a merger of the two
companies. In June 2008, Wright agreed to sell his company to InterPrint and signed a
nonbinding letter of intent. During the due diligence period, however, Wright decided
not to go through with the sale and terminated the letter of intent.
In the latter half of October 2009, after exploring several other options, including
bankruptcy, Wright renewed discussions with InterPrint. On or about October 27, 2009,

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Wright signed a nonbinding letter of intent concerning the sale of Wright Graphics or its
assets to InterPrint. Immediately thereafter, Wright, who was to be an equity partner in
the new entity, “InterPrint-Wright,” began working to transition his clients, such as J.D.
Power, to InterPrint.
III. Wright Graphics and MARS
In early November 2009, Wright was advised by his principal secured creditors
that Wright Graphics would have to enter into an assignment for the benefit of creditors
(the ABC), if the creditors were going to support the merger with/sale to InterPrint.
Wright was advised by his creditors that the assignee would be Leon Owens (Owens) of
Management Advisory Resolution Services, Inc. (MARS) (collectively, Defendants). On
November 4, 2009, pursuant to the ABC, Wright Graphics assigned its assets to MARS.
On that same day, Owens as assignee, notified Wright Graphics’ secured creditors that
the assignment had taken place and agreed that InterPrint would license and continue to
operate the Wright Graphics production facility.
Throughout November 2009 and into December 2009, Wright continued to help
transition Wright Graphics’ customers to InterPrint. Wright did so because, inter alia, he
believed that the proposed merger/sale would be completed as planned—he was given
business cards identifying him as a partner of InterPrint Wright and an email address for
InterPrint Wright.
However, on or about December 15, 2009, Wright was advised that InterPrint was
not going to go through with the proposed merger/sale. MARS then shut down and
locked up Wright Graphics, turning its assets over to the company’s secured creditors for
sale at auction.
For their work as assignee, Owens and MARS were paid a total of $63,395.
IV. Wright Graphics sues InterPrint
On July 7, 2011, Wright, filed a verified complaint against InterPrint and certain
related individuals and entities (but not Owens or MARS), alleging, inter alia, breach of
fiduciary duty, fraudulent concealment, and interference with prospective economic
advantage (the Wright-InterPrint Litigation).

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 On or about September 28, 2012, the parties to the Wright-InterPrint Litigation
reached an agreement in principle to settle the matter. The parties subsequently reached
an agreement on the precise terms of the settlement, which, inter alia, provided that the
defendants would pay Wright $500,000; this payment, however, was contingent on a
determination by the trial court that the settlement was entered into in good faith. On
June 19, 2013, the trial court found that Owens and MARS were provided with an
opportunity to be heard on issue of the proposed settlement’s good faith and that the
settlement was made in good faith within the meaning of sections 877 and 877.6 of the
Code of Civil Procedure.1
V. Wright Graphics sues MARS
On or about November 1, 2012, Plaintiffs filed suit against Defendants. In an
unverified complaint, Plaintiffs alleged that the Defendants, as ABC assignees, had
breached their fiduciary duty to Plaintiffs and that they had aided and abetted InterPrint in
committing fraud and in intentionally interfering with Plaintiffs’ prospective economic
advantage.
Plaintiffs’ claims against the Defendants were tried to a jury in February 2014. On
February 18, 2014, after less than a day of deliberation, the jury returned a verdict in
favor of Plaintiffs. The jury found that the MARS breached its fiduciary duty to
Plaintiffs, that Owens was personally liable for MARS’s breach, and that MARS’s breach
caused Wright $63,395.19 in damages plus attorney fees but did not cause any damage to
Wright Graphics. The jury further found that while InterPrint defrauded Wright and
interfered with his customer relationships, neither MARS nor Owens aided and abetted
that misconduct. The jury also found that neither Wright Graphics nor Wright was
damaged by InterPrint’s fraud and Wright was not damaged by InterPrint’s interference.
Following the verdict, Defendants moved to apply the $500,000 settlement
payment from the Wright-InterPrint Litigation as a set-off against the $63,395.19

1All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.

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damages award, for entry of a “net zero” verdict in their favor, and a ruling that they,
rather than Plaintiffs, were the prevailing parties for cost recovery purposes.2 On May 8,
2014, the trial court granted Defendants’ motion, finding that because there was only
“one injury” at issue in the two lawsuits an offset was appropriate, and on June 27, 2014,
entered an amended judgment in favor of Defendants in the amount of their costs
($6,639.72). On July 2, 2014, Plaintiffs timely appealed.
DISCUSSION
I. The exclusion of expert testimony was not an abuse of discretion
Plaintiffs contend that the trial court erred with regard to two of its experts. First,
Plaintiffs argue that the testimony offered by their expert on ABC matters, Joel Weinberg
(Weinberg), was improperly limited by the court’s order precluding Weinberg from
offering testimony about the customary standard of care for ABC assignees and from
hearing Owens’s courtroom testimony. Second, Plaintiffs argue that the trial court erred
by excluding any testimony by their expert on the commercial printing industry, Allen
Tuchman (Tuchman). We hold that the trial court did not abuse its discretion in either
regard.
A. Standard of review
We review rulings excluding or admitting expert testimony for abuse of discretion.
(Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773
(Sargon).) “A ruling that constitutes an abuse of discretion has been described as one
that is ‘so irrational or arbitrary that no reasonable person could agree with it.’” (Ibid.)
A court’s discretion, however, is “not unlimited”; it “must be exercised within the
confines of the applicable legal principles.” (Ibid.)

2 Under Goodman v. Lozano (2010) 47 Cal.4th 1327, because Plaintiffs did not
obtain a “‘net monetary recovery,’” they cannot be considered to be the “‘prevailing
party’” for purposes of recovering their costs pursuant to section 1032, even though the
jury did find that the Defendants breached their fiduciary duty to Plaintiffs and thereby
caused Wright to suffer $63,395.19 in damages. (See Goodman, at pp. 1330, 1333–
1338.)

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 B. The trial court did not abuse its discretion in limiting the testimony of
Plaintiffs’ ABC expert
1. TESTIMONY BY PLAINTIFFS’ ABC EXPERT WAS PROPERLY LIMITED
TO WHETHER DEFENDANTS’ CONDUCT CONFORMED TO THE PREVIOUSLY AGREED UPON

STANDARD OF CARE

While an expert may properly testify about a wide array of subjects, an expert
“may not testify about issues of law or draw legal conclusions.” (Nevarrez v. San Marino
Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 122.) On a related
note, an expert may not offer opinions that are contrary to an established standard of care:
“Allowing an expert to second-guess [a] profession results in the standard of care being
established by the lay opinion of the jury; i.e., the jury substitutes its opinion of what the
standard of care should have been for what the standard of care was as established by
the . . . profession.” (N.N.V. v. American Assn. of Blood Banks (1999) 75 Cal.App.4th
1358, 1385.)
Here, before trial, Plaintiffs proposed that the jury be instructed on the standard of
care owed by Defendants to Plaintiffs by utilizing an appropriately modified version of
CACI No. 4101. The court accepted Plaintiffs’ proposed jury instruction.
At trial, when Plaintiffs attempted to have Weinberg opine on the applicable
standard of care for ABC assignees, Defendants objected, arguing that the proposed line
of questioning was improper because it was asking for a legal opinion on a matter that the
court had already ruled upon, namely, the applicable standard of care as reflected in the
modified version of CACI No. 4101. The court sustained the objection, noting that
Plaintiffs had agreed to the modified CACI No. 4101 (which the court found to be a
“correct statement” of the law) and explaining that “it’s not proper for an expert to report
to the jury what the law is. That’s the province of the court. To the extent [Weinberg]
believes there are duties beyond what the court is going to instruct, I don’t think those are

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relevant.”3 The trial court then added that Weinberg may offer expert testimony
“consistent” with CAC No. 4101—that is, “whether he believes there is some breach.”
The following day, Weinberg did exactly that, identifying a number of significant failures
by Defendants to exercise reasonable business judgment and prudence, including the
following: permitting InterPrint to operate in Wright Graphics’s facility without a firm
purchase agreement; failing to perform a preference analysis; failing to obtain a
nondisclosure agreement from InterPrint as to Wright Graphics’s claimed proprietary
information; and failing to obtain significant compensation from InterPrint for the benefit
of the assignment estate.
In support of their argument that the trial court’s decision to limit Weinberg’s
testimony was an abuse of discretion, Plaintiffs rely upon Unigard Ins. Group v.
O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, for the proposition that “parties may
introduce expert testimony on the standard of care.” Plaintiffs’ reliance is misplaced. As
a preliminary matter, Unigard is easily distinguished from the instant case. In Unigard,
the plaintiffs were prevented from introducing “any” expert testimony on whether the
defendant law firm had been negligent in its representation of a client. (Id. at p. 1239.)
Here, Plaintiffs were not so disadvantaged. Moreover, as Unigard makes clear, the
“‘formulation of the standard of care is a question of law for the court,’” not a factual
issue for the jury. (Id. at p. 1237.) “‘Once the court has formulated the standard, its
application to the facts of the case is a task for the trier of fact . . . .’” (Ibid.) The “crucial
inquiry” in such a situation is whether the defendant’s advice and actions were legally
deficient. (Ibid.) Here, in contrast to Unigard, Plaintiffs were not only allowed to
present some expert testimony but to do so on the central factual issue with regard to their
fiduciary duty claim, namely whether Defendants failed to fulfill their duty to Plaintiffs.

3 Before trial, the trial court had ruled that “Weinberg will not be permitted to give
any legal opinions. He may, however, give opinions so long as a sufficient foundation is
laid . . . as to the duties of an assignee, and that will be pursuant to both the general
assignment . . . and Probate Code Section 16040.”

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 In short, because the trial court adopted Plaintiffs’ definition of the applicable
standard of care (the modified CACI No. 4101 jury instruction), there was no need for
any expert testimony on that subject. All that was required to assist the jury on an issue
outside of common experience—i.e., how a reasonably prudent ABC assignee would act
compared with how Defendants actually performed—was expert testimony on the issue
of breach, testimony which the trial court allowed, and, judging by the verdict, testimony
that the jury found both credible and persuasive.4 Accordingly, we hold that the trial
court did not abuse its discretion with regard to limiting Weinberg’s testimony to the
issue of whether Defendants breached their duty to Plaintiffs.
2. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN PRECLUDING
PLAINTIFFS’ ABC EXPERT FROM HEARING OWENS’S TRIAL TESTIMONY
After successfully moving to exclude all witnesses from the courtroom prior to
their testimony, Plaintiffs asked the trial court to modify its order by allowing Weinberg
to be present during Owens’s testimony. The trial court denied the request, explaining,
“That’s not fair to the defense . . . because [Weinberg will] now be giving opinions other
than the ones, at least potentially, that he gave at his deposition.” The court based its
decision on Kennemur v. State of California (1982) 133 Cal.App.3d 907 (Kennemur).
In Kennemur, supra, 133 Cal.App.3d 907, the plaintiff attempted to call an expert
to testify about causation at trial. In three depositions prior to trial, however, the expert
testified that he had no opinion to offer on causation. (Id. at pp. 912–913.) The trial
court did not permit the expert to testify, and the Court of Appeal affirmed, holding:
“When appropriate demand is made for exchange of expert witness lists, the party is
required to disclose not only the name, address and qualifications of the witness but the

4 Plaintiffs argue that if Weinberg had been allowed to testify on the applicable
standard of care they “could have received a better verdict” on their fiduciary duty claim.
We are unpersuaded. Plaintiffs fail to identify any proposed testimony by Weinberg—no
excerpts from a report prepared by Weinberg or any deposition testimony—that would
have had some bearing on the issue of damages. Indeed, at trial, Weinberg admitted that
he had never been tasked with analyzing this issue: “I haven’t been asked to look at the
dollar loss question.”

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general substance of the testimony the witness is expected to give at trial. [Citation.] In
our view, this means the party must disclose either in his witness exchange list or at his
expert’s deposition, if the expert is asked, the substance of the facts and the opinions
which the expert will testify to at trial.” (Id. at p. 919.) The Kennemur court reasoned
that “[o]nly by such a disclosure will the opposing party have reasonable notice of the
specific areas of investigation by the expert, the opinions he has reached and the reasons
supporting the opinions, to the end the opposing party can prepare for cross-examination
and rebuttal of the expert’s testimony.” (Ibid.)
Plaintiffs contend that the trial court should have instead relied on Easterby v.
Clark (2009) 171 Cal.App.4th 772, and allowed Weinberg to listen to Owens’s
testimony. If Weinberg’s subsequent testimony at trial differed from his deposition
testimony, then, Plaintiffs argue, Defendants could have explored the discrepancy during
cross-examination, the discrepancy going to the weight, not the admissibility, of
Weinberg’s new opinions. Plaintiffs’ argument is flawed because the facts in Easterby
are very different than those here.
As a preliminary matter, Easterby v. Clark, supra, 171 Cal.App.4th 772, is not
about an expert being allowed to hear the trial testimony of percipient witnesses before he
or she testifies. Rather, Easterby is concerned with the extraordinary circumstances that
lead a trial court to permit an expert to testify beyond his deposition by offering new
opinions at trial. Moreover, the determining issue in Easterby was notice—something
that Plaintiffs ignore in their discussion of the case. In Easterby, the court held that it
was prejudicial error to exclude an expert’s causation testimony at trial even though he
offered no such causation opinions during his deposition. The Easterby court did so
because the defendants had notice of the new opinion—three months notice—and an
opportunity to depose the expert again before trial to explore it, but they failed to take
advantage of that opportunity. (Id. at p. 780.) Here, Defendants would have had no
notice, let alone fair notice, of Weinberg’s new opinions nor would they have had an
opportunity to depose him before his new opinions were presented to the jury. In
reaching its decision, the court in Easterby stressed the fundamental importance of

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fairness in trial preparation and, in so doing, put itself squarely in line with Kennemur,
supra, 133 Cal.App.3d 907: “The overarching principle in Kennemur [and other cases] is
clear: a party’s expert may not offer testimony at trial that exceeds the scope of his
deposition testimony if the opposing party has no notice or expectation that the expert
will offer the new testimony, or if notice of the new testimony comes at a time when
deposing the expert is unreasonably difficult.” (Easterby, at p. 780.) Both of Easterby’s
prohibitive conditions applied to Plaintiffs’ request.
We hold that the trial court, under the facts of this case, did not abuse its discretion
in excluding Weinberg from hearing Owens’s trial testimony. Such a decision was
consistent with both the trial court’s prior ruling—made at Plaintiffs’ request—that all
witnesses be excluded from courtroom prior to their testimony on the stand and with the
holding and reasoning of Kennemur, supra, 133 Cal.App.3d 907, and Easterby, supra,
171 Cal.App.4th 772. Because it would have been “grossly unfair and prejudicial” to
allow Weinberg to listen to Owens’s trial testimony5 and then offer additional opinions at
trial based on that testimony (Jones v. Moore (2000) 80 Cal.App.4th 557, 564–565), the
trial court, under the circumstances of the instant case, acted properly in denying
Plaintiffs’ request.6

5 We acknowledge that had Owens’s trial testimony differed markedly from the
testimony he gave at his deposition, the trial court may have felt compelled to take a
number of steps to insure a fair trial, including possibly allowing Weinberg to offer new
opinions at trial. However, it does not appear from the record before us that Owens’s
trial testimony varied meaningfully from his deposition testimony and even if it did,
Plaintiffs failed to identify any such variance on appeal.
6 We further acknowledge that under other circumstances not discussed herein, a
trial court might decide that the best course of action is to permit each expert to remain in
the courtroom so as to hear the testimony of both percipient witness and/or other experts.
We note this to avoid implying or suggesting that there is only one way to address this
question regarding expert testimony.

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 C. The trial court did not abuse its discretion in excluding the testimony of
Plaintiffs’ commercial printing expert
“A person is qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on the subject to
which his testimony relates.” (Evid. Code, § 720, subd. (a).) “‘The trial court is given
considerable latitude in determining the qualifications of an expert and its ruling will not
be disturbed on appeal unless a manifest abuse of discretion is shown.’” (People v.
Cooper (1991) 53 Cal.3d 771, 813.)
Under Evidence Code section 801, the trial court acts as a “gatekeeper to exclude
speculative or irrelevant expert opinion.” (Sargon, supra, 55 Cal.4th at p. 770.) As our
Supreme Court explained in Sargon, “‘[T]he expert’s opinion may not be based “on
assumptions of fact without evidentiary support [citation], or on speculative or
conjectural factors . . . . [¶] Exclusion of expert opinions that rest on guess, surmise or
conjecture [citation] is an inherent corollary to the foundational predicate for admission
of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it
must decide?”’” (Ibid.) “This means that a court may inquire into, not only the type of
material on which an expert relies, but also whether that material actually supports the
expert’s reasoning. ‘A court may conclude that there is simply too great an analytical gap
between the data and the opinion proffered.’” (Id. at p. 771.)
Before trial, the trial court excluded, in its entirety, the proposed testimony of
Tuchman, Plaintiffs’ expert on the commercial printing industry, who was to offer
opinions relating to how Defendants caused Plaintiffs’ alleged damages.7 The court did
so for two principal reasons: First, Tuchman’s proposed testimony was not sufficiently
beyond common experience to be helpful to the jury: “Sales reps, I think it’s well-

7 Tuchman was not Plaintiffs’ only damages expert or even its principal damages
expert. Plaintiffs’ lead expert on damages was John Kimble Dietrich, a professor of
finance from the Marshall School of Business at the University of Southern California.
Professor Dietrich opined on Wright’s loss of earnings due to InterPrint’s interference
with his customer relationships ($2.1 million) and the value of Wright Graphics when it
entered into the ABC (between $1.1 million and $3 million).

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known, certainly to this court, if not to the—most commonsensical juror, do scramble for
business and they do compete with other sales reps and they do take runs at other sales
reps’ clients and sometimes they are successful and sometimes they’re not. But for this
witness to be asked to somehow quantify or give an opinion on how often that occurs or
what are the factors as to which drives that change of a client is just wholly beyond what
I think this witness is qualified to testify about. [¶] . . . [¶] There’s nothing beyond the
common experience of a group of adult jurors with respect to commissions and the fact
that clients who have a long-term relationship with a particular individual, salesman or
otherwise, will stay with them and sometimes they’re poached by other sales reps.
Nothing at all difficult about that.”
Second, even if Tuchman’s testimony would potentially be of some general
assistance to the jury, it lacked an adequate foundation with respect to the key issues of
causation and damages. Specifically, the court found that Tuchman “has only passing
knowledge of this case and the factual scenario in this case. He knows of only three,
maybe four, five of Mr. Wright’s customers. He has no idea what the payment structure
is, the commission structure. He has no knowledge of the negotiations with InterPrint.
No knowledge of the financial—extraordinary financial difficulties that Wright was
having during 2009. Tuchman has no knowledge whatsoever about the assignment with
Owens. His testimony is highly speculative as to any loss of revenues or customers.”
Plaintiffs argue that the exclusion of Tuchman was an abuse of discretion and for
support rely on Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102
(Kudrow). In Kudrow, a personal manager sued an actress for breach of contract
following his termination, alleging that he was owed a percentage of her income earned
from engagements that she entered into while he was her manager. (Id. at p. 1105.)
When the actress moved for summary judgment, the plaintiff argued that it was the
custom and practice in the entertainment industry to pay posttermination commissions;
the plaintiff supported his opposition with the declaration by an expert who had worked
in the entertainment industry for 35 years “as an executive in business affairs, talent
agent, and personal manager. He has obtained employment for actors, directors, writers,

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and producers. He was president of a prominent talent agency. He has discussed
extensively entertainment matters with persons in the entertainment business. He
represented as a talent agent actors who were represented by personal managers. He was
familiar with specific instances concerning the payment of personal managers after
termination of their representation. He discussed the matter with attorneys at a prominent
entertainment law firm”; moreover, he “personally was a party to agreements like the
one” at issue in Kudrow. (Id. at p. 1116.) The trial court sustained the actress’s
objections to the declaration due to a lack of foundation and granted her summary
judgment. (Id. at pp. 1111–1112.) The Court of Appeal reversed, holding that there was
adequate foundation as to the expert’s qualifications and the facts upon which he relied.
(Id. at pp. 1121–1122.)
Plaintiffs reliance on Kudrow, supra, 208 Cal.App.4th 1102, is unavailing. While
Plaintiffs are correct that “[e]xpert testimony is admissible to prove custom and usage in
an industry,” it is also correct, as the court in Kudrow acknowledged, that “such
testimony is subject to foundational challenges.” (Id. at p. 1114.) In Kudrow, the
expert’s qualifications and experience served as an adequate foundation for his opinions,
because he was only tasked with showing that in an “emerging profession” there is a
custom and practice to pay posttermination compensation to personal managers, just as
there is “an established custom and usage to pay posttermination compensation to talent
agents.” (Id. at p. 1120.) Here, in contrast, Tuchman was being asked to do something
more ambitious than simply establish that there is often a special bond between sales
representatives, such as Wright, and their clients. Instead, Tuchman was tasked to also
show that Wright could not reclaim his customers once he had been improperly induced
to transition them to InterPrint and, therefore, he suffered damages as a result of
Defendants having allegedly aided and abetted InterPrint. Tuchman, however, as the trial
court properly noted, did not have the requisite knowledge to support such an opinion.
To borrow from Sargon, supra, 55 Cal.4th at page 771, there was “‘simply too great an
analytical gap’” between Tuchman’s knowledge and his proffered testimony on causation
and damages.

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 Because the trial court’s exclusion of Tuchman’s testimony was not irrational or
arbitrary, but reasoned and reasonable, we affirm.
II. The offset was appropriate
Plaintiffs argue that the trial court improperly applied the $500,000 settlement
from the Wright-InterPrint Litigation to the judgment in the instant case. Plaintiffs claim
the set-off was improper because the claims in Wright-InterPrint Litigation “were
unrelated to the tort for which damages were awarded” in the instant action. Plaintiffs’
argument is based on the text of section 877, which limits set-offs for good faith
settlements to “tortfeasors claimed to be liable for the same tort” (italics added).
Plaintiffs’ argument is without merit.
As our Supreme Court stated in Mesler v. Bragg Management Co. (1985) 39
Cal.3d 290, “the language of section 877 is significant—its drafters did not use the
narrow term ‘joint tortfeasors,’ they used the broad term ‘tortfeasors claimed to be liable
for the same tort.’ This language was meant to eliminate the distinction between joint
tortfeasors and concurrent or successive tortfeasors [citation], and to permit broad
application of the statute.” (Id. at p. 302.) Section 877 has been construed to apply
“‘even more generally to “all tortfeasors joined in a single action” whose acts or
omissions “concurred to produce the sum total of the injuries to the plaintiff.”’”
(Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1272.)
Kohn v. Superior Court (1983) 142 Cal.App.3d 323 (Kohn), is illustrative on how
broadly section 877 is to be applied. In that case, the purchasers of a residence filed suit
against a number of parties, including the seller and certain contractors, each of whom
had performed work or services on the property before the completion of the sale. The
purchasers alleged that the sellers had misrepresented the condition of the property and
had breached their fiduciary duties to disclose that the property had been damaged in a
fire. They also alleged that one contractor had negligently performed repairs on the
property and a structural pest control company had negligently performed an inspection
thereon. In addition, the purchasers alleged that all defendants had conspired to conceal
the fire damage and had committed fraud. The purchasers entered into a settlement

14
agreement with the repair contractor and the structural pest control company before trial.
Those settling defendants then obtained a good faith settlement determination and a
dismissal of the sellers’ cross-complaint. (Id. at pp. 325–326.) The sellers filed a writ
petition to challenge the good faith settlement determination and the dismissal of their
cross-complaint. (Id. at p. 325.) They argued that section 877 was inapplicable because
they and the settling defendants were not “‘claimed to be liable for the same tort,’” within
the meaning of the statute. They explained that they were being sued, in essence, for
fraud, whereas the settling defendants were being sued for the failure to properly repair or
inspect the property. (Id. at p. 328.) The court in Kohn rejected that argument, holding
that “there was but one injury, [the] purchase of a house which was worth less than
plaintiffs believed. [Citation.] The alleged tortious activities by the contractor, pest
control inspector and seller were not independent, but combined to create one indivisible
injury which took place when the sale was consummated.” (Id. at p. 329.)
Here, as in Kohn, supra, 142 Cal.App.3d 323, although there were different sets of
defendants, there was just one indivisible injury. The injury described in Plaintiffs’
pleadings in both actions was the same—the loss of Plaintiffs’ business assets, namely
their clients and the confidential information related thereto (e.g., customer lists, account
files, trade secrets, etc.). Not only did Plaintiffs’ pleadings allege one indivisible injury,
but the complaints even alleged a unitary mechanism for that injury—both sets of
defendants were alleged to have breached their fiduciary duties to Plaintiffs and they
either committed fraud and intentional interference with Plaintiffs’ prospective economic
advantage or aided and abetted that misconduct.
In sum, because the defendants in both actions were “claimed to be liable for the
same tort” (§ 877), the set-off was properly applied by the trial court to the jury’s verdict
against Defendants.8

8Plaintiffs also argue that it was inappropriate for the trial court, not the jury, to
apply the set-off. According to Plaintiffs, the case should be remanded “to allow the jury
to determine a set-off is appropriate pursuant to a determination of whether there was a
good faith settlement.” This argument too is without merit. First, the trial court, in

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 DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

accordance with the procedures discussed in section 877.6, already determined that there
was a good faith settlement of the Wright-InterPrint Litigation. In fact, the motion for a
good faith determination was a joint motion brought by InterPrint defendants and Wright.
So there was nothing for the jury to decide with regard to “whether there was a good faith
settlement.” Moreover, that joint motion, which was filed after Plaintiffs had already
sued Defendants, expressly stated that Wright wanted the good faith determination
because he “intends to pursue claims against other alleged joint tortfeasors.” Second,
although section 877 does not specify how a nonsettling defendant shall raise the claim of
an offset, it is well recognized that it is entirely proper for a nonsettling defendant to
defer assertion of the right to offset until after the completion of the trial—that is, until
after his/her liability has been established. (Knox v. Los Angeles (1980) 109 Cal.App.3d
825, 834.) As the court in Knox explained, “especially in jury cases, the defendant
should not be required to prejudice its defense by disclosing substantial settlements made
by codefendants. [¶] . . . [¶] [T]here is ample precedent for deferring the offset issue
until after the determination of the merits.” (Ibid.)

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