KAYPERS JACKSON v. JAE KIM (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Kaypers Jackson appeals from a judgment and an order entered after the trial court granted a motion for nonsuit in favor of Jae Kim, doing business as Jae Kim & Associates and JHK Law Group, Inc. (Kim), in Jackson's action against Kim for legal malpractice and breach of contract based on Kim's failure to file a motion to augment the expert witness list in the underlying action filed by Jackson against Julio Villeda to recover damages caused by flooding of Jackson's property.   Jackson contends that the court erred in granting the motion for nonsuit because:  (1) the breach of contract cause of action was not addressed in Kim's motion and therefore should not have been dismissed;  and (2) Jackson established a prima facie case of legal malpractice through expert witness Roger Parkinson's testimony.   Jackson also contends that the trial court erred in awarding attorney fees of $52,648 because it applied “the wrong test” for attorney fees and Kim did not provide any documentation supporting his request for attorney fees.

We conclude that Jackson failed to establish a prima facie case of legal malpractice because he did not show that but for Kim's failure to file a motion to augment he would have received a better result.   Therefore, the breach of contract cause of action, which similarly was based on Kim's failure to make a motion to augment the expert witness list, also was subject to the motion for nonsuit.   We further conclude that the court did not err in awarding attorney fees of $52,648.   We affirm the judgment and the order awarding attorney fees.

BACKGROUND

Viewing the evidence in the light most favorable to the plaintiff, as we must (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839 (Carson )), the evidence shows the following.   Jackson is the owner of a mixed use property in Los Angeles.   In 2003, a flooding problem occurred at the back of his property that he believed was caused by a wall built by the adjacent property owner, Villeda.   In October 2004, Jackson, in propria persona, filed an action against Villeda.   His complaint against Villeda is not part of the record on appeal.   Jackson retained Stephen Helfrich, a civil engineer and licensed contractor, and Dr. Peter Bonefice, a Ph.D. in topographical survey, and Barnett, a licensed contractor, as expert witnesses.   Meanwhile, in October 2005, Jackson retained Kim to represent him.   Jackson also hired Steven Jones, an experienced litigator, as a litigation consultant.   Kim filed an expert witness list, designating Helfrich, Bonefice, and Barnett.   On September 19, 2006, Jackson met with Kim and Jones, and Jones informed Kim and Jackson of important deadlines, including a September 20, 2006 deadline for designating expert witnesses.   Trial had been set for November 8, 2006.

In September 2006, Kim told Jackson that Helfrich was not prepared to testify about the wall and notice issues and that Jackson should obtain an expert who could testify about those issues.   Jackson then found architect and general contractor Richard Rice and informed Kim by email about Rice on October 10, 2006.   According to Jackson, he and Kim made a tactical decision to retain Rice so that “[Helfrich] would [not] be overburdened trying to address all of the drainage problems.”   Jackson stated, “Helfrich was ready, willing and able to testify on all these points.   It's just, it had made sense to me, and it was suggested that we get another expert.”   On October 12, 2006, Kim filed an untimely supplemental designation of Rice as an expert, hoping that Villeda would depose him so that Villeda would not be able to argue against admitting Rice's testimony at trial.   After he was retained as an expert, Rice inspected the property and the interior and exterior of the building.   He walked the site, took measurements regarding elevation, and took photographs.

In the underlying court trial which commenced on November 8, 2006, the trial court refused to admit Rice's testimony because he was not a duly designated expert.   During a break, Kim told Jackson that Rice was unable to testify because Kim “did not know he was supposed to file a motion to augment.”   Kim had never mentioned to Jackson that there was any problem regarding the late designation of Rice as an expert witness.   After the court precluded Rice from testifying, Jackson and Kim had a conference call with Jones.   Jones told Jackson that he could proceed with the trial or try to dismiss and refile the case.   Jackson decided to continue with the trial.   At trial, Helfrich testified as to the wall and notice issues.   Helfrich had between 45 minutes to an hour to prepare on these issues after Rice was barred from testifying.   Helfrich had not inspected the site nor done any investigation prior to testifying.   Bonefice also testified at trial.   Kim decided not to have Barnett testify because he believed Barnett was “superfluous” because Helfrich was also a licensed contractor.   Villeda and his expert, Henry Koffman, a civil engineer, testified at trial.   The trial court ruled in favor of Villeda.

On March 27, 2008, Jackson filed a complaint for legal malpractice and breach of contract against Kim. The cause of action for legal malpractice alleged that Kim had failed to designate Rice and later had failed to make a motion to augment the expert witness list to add Rice. As a consequence the trial court found in favor of Villeda because it found the remaining witness, Helfrich, was not credible.   The cause of action for breach of contract alleged that Kim had “recklessly” failed to designate Rice and had failed to move to augment the designation.   The complaint alleged Jackson was damaged in the amount of $3,000 for fees paid to Kim under the contract and $150,000 as a result of the loss of the underlying dispute.

In the legal malpractice trial, Parkinson, an expert in legal malpractice, opined that Kim's negligence stemmed from his failure to file a motion to augment the expert witness list and not from his failure to designate Rice as a witness in the first place.   Parkinson testified that Kim's conduct was below the standard of care because he should have filed a motion to augment the expert witness list instead of filing an untimely supplemental list in the hope that the opposing party would depose the expert.   Kim should not have allowed his paralegal to research the issue and easily should have found the requirements for filing a motion to augment.   Due to the timing Kim also would have had to file an ex parte application for an order shortening time in order to file a motion to augment.   Kim could have argued in a motion to augment that Rice's testimony was necessary to fill in the gaps of the testimony of the other experts, who had not done the foundational work such as surveying.   Kim also could have referred to Rice's particular expertise and the benefit he anticipated from his testimony.   In deciding whether to make a motion to augment the expert witness list, an attorney will take into account whether a witness is redundant.   Kim knew Rice was not a redundant witness because Kim knew what each witness had done to prepare for trial and their areas of testimony.   Parkinson did not recall if he had ever personally filed a motion to augment but had been in cases where motions to augment had been granted.   The court sustained Kim's counsel's objection to the question of whether he had “enough knowledge to formulate an opinion as to how liberally or strictly these motions are granted” on the basis of lack of foundation.

Parkinson knew “some” of the expert witnesses' testimony, but he did not read the trial transcript of Jackson's expert witnesses or the defense expert witness because it was not available to him.   Because he had not read the trial transcript, he did not know whether Kim had performed competently at trial.

Called as a hostile witness, Kim testified that although he had been unaware that he had needed to file a “motion to augment,” he had known generally that he had to show good cause to persuade the trial court to include an additional expert after the deadline to designate expert witnesses had passed.   Kim believed such a request would have failed because he had been unable to think of grounds that would have convinced the court to allow him to add Rice as an expert and he knew from past experience that the court was very strict about granting requests.   Therefore, he had decided to file a supplemental declaration in the hope that Villeda would depose Rice.

Rice testified that had Villeda given Jackson notice of the construction activity, Jackson could have obtained a stop notice for the construction and negotiated with Villeda or taken other measures to prevent the water intrusion.   If he had “[been able] to give testimony, [he] was certain that [Jackson] would have won the case.”   He opined that the damage to Jackson's building was caused by the location, construction, and proximity of Villeda's wall to Jackson's building, which caused water to dam up, fail to flow out, and seep into Jackson's building and the regrading of Villeda's property caused rainwater to be diverted to Jackson's property instead of crossing over Villeda's property.   On November 14, 2006, his estimate of the cost of required repairs to Jackson's property was $101,430, excluding damage to the foundation, which he was unable to observe.   His updated damage estimate was $350,000.

Jackson testified that he had never received notice from Villeda of his intent to construct a wall and elevate an existing parking lot until Villeda began construction.   After Villeda finished his construction, rainwater began overrunning Jackson's property.   The stucco on the side of his building was moist and wet, the floor on one unit was completely rotted out, carpet had to be replaced, and there was mold and mildew in the building.   Kim had pleaded a nuisance cause of action in the underlying case but had not put on any evidence to show nuisance.   He had paid $16,000 to $20,000 in repairs so far.   He had incurred approximately $35,000 in litigation costs up to the time Rice's testimony was excluded in the underlying trial.

After Jackson rested his case, Kim moved for a nonsuit.   Jackson made a motion to reopen his case to establish collectability so that Jackson could testify that his examination of the records in the county recorder's office showed no mortgages against Villeda's property.   The trial court denied Jackson's motion on the basis that such testimony was inadmissible hearsay.   The court rejected Jackson's further argument that the nonsuit motion should be denied because the jury might award Jackson nominal damages.   The court then granted Kim's motion for nonsuit.   The court noted that Parkinson had not testified that an ex parte application to shorten time would have been granted in the underlying trial.   It stated that even if the ex parte application had been granted, Parkinson was not aware of Helfrich's testimony or qualifications and therefore Parkinson could not testify as to a basis for a motion to augment that would have justified the court granting the motion.   The court noted that because there was no evidence of Helfrich's testimony, the jury could not juxtapose Helfrich's testimony against Rice's testimony in order to determine if Rice's testimony would have made a difference.   It also recognized that Jackson had chosen to proceed with Helfrich on the underlying trial after Rice had been precluded from testifying.   The court held that Jackson had failed to show collectability as an element of damages and the breach of contract action did not survive independently because the basis for the breach of contract was the same as the legal malpractice action, that is, Kim's failure to designate a necessary expert and to move to augment the designation.

On July 6, 2009, Kim filed a memorandum of costs for $49,702, which included $45,773 for attorney fees.   On July 17, 2009, Jackson filed a motion to tax costs, arguing that the attorney fees sought were not reasonable.   Jackson also filed a motion for a new trial.   Both motions were denied by the trial court on September 8, 2009.   On September 17, 2009, Jackson appealed from the entry of judgment.   On September 18, 2009, Kim filed a motion to set the amount of attorney fees at $58,361.70.   At the hearing on the motion, Kim's attorney, Howard Kapp, explained that the new figure included work performed after the filing of the memorandum of costs and that the original figure did not include the bill from Kim's previous attorney, Brad Ahn. Kapp also stated that he had billed Kim at the reduced rate of $350 per hour.   The court decided to base the award of attorney fees on the $45,774 set forth in Kim's original memorandum of costs because Kapp's declaration did not explain what fees had been incurred from the time the original memorandum of costs had been filed.   The court also added Ahn's fees of $6,875, for a total of $52,648.   The court stated that Kapp was not required to submit billing records and that his declaration justified 133 hours of work, including motions, discovery, and trial preparation on a case that was “well over a year old;  went through a full week of trial.”   The court stated that the amount of attorney fees did not shock the conscience of the court.

Jackson's subsequent appeal from the trial court's order of attorney fees was consolidated with the appeal from the entry of judgment.

DISCUSSION

A. The trial court properly granted the nonsuit

Jackson contends that the trial court erred in granting Kim's motion for nonsuit because breach of duty was established by Parkinson's testimony as to what Kim could have argued in a motion to augment;  causation was established by Jackson's testimony that Helfrich was not prepared to testify as to the wall and notice issues;  Helfrich's testimony was not necessary to establish that a more favorable result would have occurred had Rice been allowed to testify;  and the doctrine of assumption of the risk did not defeat Jackson's prima facie case.   He further urges the court erred in refusing to allow Jackson to reopen his case to testify that Villeda's property was free of mortgages in order to establish collectability and damages.   And he contends the court improperly granted nonsuit on the breach of contract action, which he claims was not mentioned in the nonsuit motion.   We disagree with Jackson's contentions and conclude that the court properly granted Kim's motion for nonsuit.

“A motion for nonsuit allows a defendant to test the sufficiency of the plaintiff's evidence before presenting his or her case.   Because a successful nonsuit motion precludes submission of plaintiff's case to the jury, courts grant motions for nonsuit only under very limited circumstances.  [Citation.]  A trial court must not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor.   [Citations.]  [¶] ‘In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses.   Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.   The court must give “to the plaintiff['s] evidence all the value to which it is legally entitled, ․ indulging every legitimate inference which may be drawn from the evidence in plaintiff ['s] favor․” ’  [Citations.]  [¶] In an appeal from a judgment of nonsuit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.  ‘The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’  [Citations.]  [¶] Although a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is ‘some substance to plaintiff's evidence upon which reasonable minds could differ․’  [Citations.]”  (Carson, supra, 36 Cal.3d at pp.   838–839.)

As we explain, we conclude that Jackson has not established a prima facie case of legal malpractice against Kim and therefore the trial court properly granted the nonsuit motion because he did not show that but for Kim's failure to file a motion to augment he would have received a better result.  “The elements of a cause of action for legal malpractice are (1) the attorney-client relationship or other basis for duty;  (2) a negligent act or omission;  (3) causation;  and (4) damages.  [Citations.]”  (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 863.)   Parkinson's testimony would support the first two elements.   Under Code of Civil Procedure section 2034, a litigating party must reveal expert witness information to the opposing party in time for trial preparation.  (Richaud v. Jennings (1993) 16 Cal.App.4th 81, 90.)   “Furthermore, the very purpose of [Code of Civil Procedure section 2034,] subdivision (k) is to provide a procedure for augmentation of a party's expert witness list when for some good reason an expert was not listed on a party's original expert witness list.”  (Richaud, at p. 90.)  “[T]he party [cannot] comply with the statute by unilaterally, without leave of court and at any time the party chooses, simply serving a so-called ‘supplemental’ expert witness designation listing the new replacement expert.”  (Id. at p. 91.)   Drawing every legitimate inference from Parkinson's testimony, we conclude that the evidence would support a verdict that Kim breached his duty of care by failing to file an ex parte application for an order shortening time, failing to research the requirements for filing a motion to augment the expert witness list, failing to file a motion to augment the expert witness list, and instead filing an untimely supplemental expert witness list in the hope that the opposing party would depose the expert.   According to Parkinson, Kim could have argued in a motion to augment that Rice's testimony was necessary to fill in the gaps of the testimony of the other experts, who had not done the foundational work such as surveying, and could have referred to Rice's particular expertise and the benefit Kim anticipated from Rice's testimony.

But as to the element of causation, we conclude that the evidence did not show that but for Kim's failure to file a motion to augment Jackson would have received a better result.  (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241 [“In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.”].) First, there was no evidence that the trial court would have granted the ex parte application to shorten time or the motion to augment.   Parkinson merely testified that Kim had grounds to make such motions.   Kim, on the other hand, testified that in his experience the court had been very strict about granting motions.   Second, although Jackson argues on appeal that the court improperly precluded Parkinson from giving an opinion on the likelihood that the motion to augment would have been granted, the evidence does not show that even if Kim had been successful on the motion to augment, the result at trial would have been more favorable to Jackson.   While the evidence shows that Kim and Jackson believed Helfrich was “not prepared” to testify as to the wall and notice issues and that they wanted to obtain another expert to divide up the burden of testifying, and eventually hired Rice, the evidence would not support the proposition that Rice's testimony would have made a difference in the outcome.   Although in the legal malpractice action Rice testified as to what his testimony would have been in Jackson's action against Villeda, Helfrich's and Bonefice's testimonies were not introduced.   Accordingly, the jury would have no basis to determine if Rice's testimony would have made a difference.   And Parkinson testified that he did not read the trial transcripts, did not know the testimony of the expert witnesses, and could not form an

As to Jackson's argument that the doctrine of assumption of the risk did not defeat Jackson's prima facie case, we note that the trial court merely recognized that Jackson had chosen to proceed on the underlying trial with Helfrich after Rice had been precluded from testifying.   We need not engage in an analysis of the applicability of the doctrine of assumption of the risk.

Jackson further urges that the trial court erred in dismissing the second cause of action for breach of contract, which was not addressed in Kim's motion for nonsuit, citing Timmsen v. Forest E. Olsen, Inc. (1970) 6 Cal.App.3d 860 (Timmsen ).  Timmsen holds that the motion for nonsuit must state the precise grounds upon which it is made and only the grounds specified by counsel should be considered by the court.  (Id. at p. 868.)   But Timmsen recognizes that “ ‘grounds not specified in a motion for nonsuit will be considered by an appellate court only if it is clear that the defect is one which could not have been remedied had it been called to the attention of plaintiff by the motion.’ ”  (Ibid., quoting Lawless v. Calaway (1944) 24 Cal.2d 81, 94.)   As the trial court aptly noted, the basis of both the legal malpractice and breach of contract claim was Kim's failure to file a motion to augment.  (Kracht v. Perrin, Gartland & Doyle (1990) 219 Cal.App.3d 1019, 1022 [“Where the injury is suffered by reason of an attorney's professional negligence, the gravamen of the claim is legal malpractice, regardless of whether it is pled in tort or contract.”].) Further, in his complaint against Kim, Jackson alleged that Kim breached his contract by failing to act diligently and in good faith by “recklessly failing to designate a needed expert and then again failing to move to augment the designation.”   Even assuming for purposes of a nonsuit that Kim did not act diligently under the contract by failing to make a motion to augment the expert witness list, as previously discussed, Jackson did not establish that Kim's failure to file a motion to augment caused Jackson any damages.  (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 775 [damages are a necessary element in the breach of contract action].)   Therefore, Jackson could not have prevailed on the breach of contract claim.

We conclude the trial court did not err in granting Kim's motion for nonsuit.   Because we conclude that Jackson failed to establish causation and damages, we need not address Jackson's argument that the court erred in refusing to allow Jackson to reopen his case to testify that Villeda's property was free of mortgages in order to establish collectability and damages.

B. Attorney Fees

Jackson contends that the trial court used the wrong test in awarding attorney fees when it stated that the sum of $52,648 did not shock the conscience of the court.   He also contends that Kim's motion for attorney fees was not supported by invoices, specific descriptions of work actually done, and proof of payment.   He also urges that Ahn's bill for reviewing the case, filing an answer, and filing a demurrer and motion to strike that was voluntarily withdrawn was excessive.   We disagree and conclude that the court did not abuse its discretion in its award of $52,648 in attorney fees.

“ ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’   (Code Civ. Proc., § 1032, subd. (b).)”  (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128–129.)   Allowable costs are restricted to those reasonably necessary to the conduct of the litigation.  (Id. at p. 129;  Code Civ. Proc., § 1033.)   Among others, the following items are allowable as costs under Code of Civil Procedure section 1032:  filing, motion, and jury fees;  taking depositions;  fees of expert witnesses ordered by the court;  and attorney fees.  (Code Civ. Proc., § 1033.5, subd. (a).)

“ ‘The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’—meaning that it abused its discretion.  [Citation.]”  (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)  “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.   On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.”  (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)  “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.”   (Ibid.) “An attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.”  (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.)

We conclude that the trial court's award of attorney fees was not an abuse of discretion.   The court's determination was not based merely on its belief that the award did not shock the conscience, but was based on Kapp's declaration and testimony that he had provided 133 hours of work in a case that was more than a year old and had gone to trial.   In support of the motion to set the amount of attorney fees, Kapp declared that Ahn's fees were based on his filing an answer, conducting research on legal malpractice, and preparing and filing a demurrer and motion to strike.   Kapp billed Kim at a reduced rate of $350 per hour and prepared for Jackson's deposition by reading over 100 pages of emails, meeting with Kim, reviewing documents and available transcripts, and familiarizing himself with construction issues in the case and the opinions of the experts.   He also deposed Jackson.   Kapp declared that he had prepared a motion for summary judgment, a separate statement, and declarations supporting the motion for summary judgment, which he withdrew for tactical reasons.   Kapp declared that he prepared a number of confidential “ ‘settlement type’ ” letters and motions in limine.   He declared that he spent considerable time preparing Kim and Kim's expert for their trial testimonies and prepared two trial books.   The evidence supports the trial court's implied determination that the attorney fees claimed by Kapp were reasonable and necessary.

We conclude that the trial court did not abuse its discretion in making its award of attorney fees of $52,648.

DISPOSITION

The judgment and the order of the trial court are affirmed.   Kim is entitled to costs on appeal.

NOT TO BE PUBLISHED.

We concur:

CHANEY, J. JOHNSON, J.