Filed 11/16/15 Miller v. Clark CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

IRWIN R. MILLER,
Plaintiff, Cross

- defendant and Re spondent.

v.
EDWARD L. CLARK, JR.,
Defendant, Cross

- complainant and Appellant
, 2d Civil No. B258311 (Super. Ct. No. 56

- 2011

- 00407071

-

CU

- BC

- VTA) (Ventura County)

In this dispute over expert witness fees, Edward L. Clark appeals a judgment after a court trial on a claim for declaratory relief and a jury trial on legal
claims

. Clark contends the trial court abused its discretion when it denied his m otions in limine, denied his motio n for non suit after opening statement, denied his motion for
dire cted verdict on the attorney ' s misrepresentation claims, did not conduct an evidentiary hearing about a witness ' s absence, responded to a juror ' s question about calculating damages, denied his motion for new trial or additur, and did not award him costs pu rsuant

to Code of Civil Procedure section 998. 1 We affirm.

1 All statutory references are to the Code of Civil Procedure unless otherwise stated.2 BACKGROUND
Irwin R. Miller and his law firm retained Clark as an electrical engineering expert witness in a personal injury case against Southern California Edison (SCE). Mil l er and Clark did n ot reduce their agreement to writing. Clark billed Miller for more than $95,000 in professional fees. M iller paid the first $17,500 billed, but objected to subsequent bills

.

Miller and Clark were unable to resolve their dis agreement. M iller filed
thi s action for declaratory relief

. He alleged that Clark billed for services he did not perform. Miller asked the court to determine if the parties have a valid contract and

" what mon ies, if any, are owed [ to Clark ]. "

Clark responded with a cross

- complai nt against Miller and Miller ' s colleague
, Susana Goytia

- Miller. 2 After two amendments, Clark ' s cross

- complain t asserted causes of action for breach of oral contract, money had and received, account stated, open book account, services rendered, negligent m isrepresentation, intentional misrepresentation, and fraud in the inducement. Miller amended his complaint to add claims for negligent and intentional misrepresentation.

Pursuant to section 998, Mil l er offered Clark $25,000

. Clark rejected the
offer. The trial court awarded Clark $30,222.50 for unpaid professional fees on the declaratory relief action and neither party prevailed on other claims.

Trial was bifurcated. The parties agreed that a jury would hear the legal
claims while the trial court heard the claim for declaratory relief. The court declared the
existence of a valid contract, and asked the jury for an advisory opinion on what money is
owed to Clark. The jury responded that Miller owes Clark between $10,00 0 and $50,000. On the legal claims, it found that neither Clark nor Miller proved misrepresentation
, and it rejected Clark ' s claim that he lost $1 30,000 in profits because this litigation interfered with his ability to work

. In determining the amount owed to Clark, the court conside red

2 Miller filed the action on behalf of his law fi rm, Irwin R. Miller, a Professional Corporation. Clark cross

- complained against the firm and against Miller and Goytia

Miller individually.3

the jury ' s advisory range and the evidence presented at trial. It found Clark ' s claim that $78,000 remained due was " substantially discredited. "

The trial court ordered the parties to pay their own costs

. It found that neither party prevailed.
DIS CUSSION

The superior court ' s decisions are presumptively correct. ( Wilson v. Sunshine Meat & Liquor Co

. (1983 ) 34 Cal.3d 554, 563 ) It is appellant ' s burden to demonstrate prejudicial error on an adequate record. ( Hotels Nevada, LLC v. L.A. Pacific
Cent er, Inc . (2012) 203 Cal.App. 4th 336, 348 .) Clark ' s appendix is incomplete and his
brief contains few citations to the record. Any reference to fact, " at any point in the brief, " must be supported by citation to the record. ( Sky River LLC v. County of Ke rn (2013) 214 Cal.App. 4th 720, 741; Cal. Rule s of Court, rule 8.204(a)(1)(C).) We start
with the presumption the record contains evidence to sustain every finding of fact. ( Eistrat v. J. C. Wattenbarger & Sons (1960) 181 Cal.App. 2d 57, 63.) We do not sea rch the record for evidence that might rebut this presumption. ( Ibid. )
A. Motions in Limine
The trial court did not abuse its discretion when it denied Clark ' s motions in
limine. In the underlying action, SCE prevailed. It paid its experts $20,000

. Clark charged Miller more than $ 9 5,000 in the same case

. Clark moved in limine to preclude Miller from offering evidence of SCE ' s expert fees , specifically the testimony of its fire expert , Thomas Fee

. Clark argued that the evidence is irrelevant and Fee is not qualified to testify about the work of an electrical engineer such as Clark.

Clark does not cite any ruli ng in support of his argument. He cited to his motions by exhibit tab only. ( SCI California Funeral Services , Inc. v. Five Bridges
Founda tion (2012) 203 Cal.App.4th 549, 552 [c itations that refer to appendix insert tabs only violate California Rules of Court
, rule 8.204(a)(1)(C)].)

Our own review of the record discloses no error. T he trial court conducted a hearing pursuant to Evidence Co de section 402 before it allowed Fee to testify. The4

testimony had a tendency in reason to prove or disprove the reasonableness of Clark ' s fee claim. The trial court properly considered th e experts ' relative qualifications in
de ter mining t he wei ght to af ford Fee ' s testimony. It instructed the jury to do the same.
The court did not abuse its discretion when it denied Clark ' s motions in lim ine concerning SCE ' s experts.
B. Motion for Nons uit

After Miller ' s opening statement, Clark moved for non suit on M iller ' s misrepresentation claims because, he argued, Miller did not identify sufficient evidence in support. A motion for nonsuit after opening statement is authorized, but it is
disfavored. ( § 581c; Sturgeon v. Curnu t t (1994) 29 Cal.App.4th 301, 305.) On review of the order denying Clark ' s motion , we assume Miller could have proved all favorable facts alleged. ( Cooper v. State Farm Mutual Auto mobile Ins. Co. (2009) 177 Cal.App.4th 876, 891.) Miller identified evidence in his opening statement that cou ld prove Clark fraudulently billed Miller for work Clark d id not perform. The trial court did not err
when it denied Clark ' s motion for nonsuit

. Motion for Directed Verdict
The trial court did not err when it denied Clark ' s oral motion for directed
verd ict on Miller ' s misrepresentation claims after Mille r rested his case

. Clark argued th e claims were unproven because Clark did not testif y about his intent. We uphold denial of
the motion for directed verdict if the verdict is s upported by substantial ev idence, no matter how slight. ( Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) Substantial circumstantial evidence supported Miller ' s misrepresentation claims. As the court explained to Clark, f raudulent intent must often be proven by circumsta ntial evidence. ( See Riverisland Cold Storage, Inc. v. Fres no

- Madera Production Credit Ass n

. (2013) 55 Cal.4th 1169, 1183.)

Clark complains that the trial court delayed before ruling on his motion. He
demonstrates no prejudice resulting from delay.5 Witness ' s Absence Clark contends that Miller instructed his colleague, Goytia

- Miller, not to appear in response to Clark ' s trial subpoena

. Clark also contends the trial court tried to coerce him to waive jury in order to present Goytia

- Miller ' s testimony

. We reject the
claims.
Clark does not support his cont entions with citation to the record. He does

not demonstrate that the witness was under subpoena, that Miller instructed her not to appear, or that the trial court coerced him. ( Liberty National E nterprises, L.P. v. Chicago
Title Ins. Co . (201 1) 194 Cal.App. 4th 839, 846 [s tatements not supported by citation to the record will be disregarded] ; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [f ailure to provide an adequate record on an issue mandates a n adverse ruling] .)

The trial court did indicate before trial that it would exclude Goytia

- Mil l er ' s testimony from a jury trial pursuant to Evidence Code section 352, but would allow the testimony in a court trial. 3 This does not demonstrate abuse of dis cretion. Considerations of time consumption differ between a jury and court trial, and Clark has not demonstrated
that Goytia

- Miller ' s testimony had any probative value. Jury Instruction, Declaratory Relief
Clark contends the trial court abused its d iscretion by creat ing a special jury
instruction for declaratory relief

. Clark does not support his argument wit h any citation
to the record.
T he record discloses no error. The trial court decides a claim for declaratory relief. (§ 1060.) It may awa rd monetary relief . ( Bertero v. National General Corp. (1967) 254 Cal.App.2d 126, 147 [ " A court of equity is empowered, under appropriate conditions, to award damages along with declaratory relief " ]; Count y of San Diego v

. State of California (2008) 164 C al.App.4th 580, 608 [same] .) The court may

3 A minute order dated December 11 , 2013, states that the parties " confer [ red] re the procedural issues of non

- appe arance of cross

- defendant Susana Goytia

- Miller

. . . . The court directs the testimony of Susana Goytia

- Miller is excluded under [Evid. Code, § 352 ] , unless [Clark] releases the jury from service. "6

proceed before a jury hears legal claims, and may do so with or without an advisory jury. ( Rae deke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671.) Here, the trial
court first declared the contract wa s valid and enforceable. The court then instructed the jury to decide the legal claims and to advise it on the amount owed to Clark. In response to a question, the court told the jury that a range of damages would be acceptable. The jury advised that Mi ller owed no less than $1 0,000 , but no more than $50,000

. Considering the jury ' s advi c e and the evidence, the court declared that Miller owes Clark $30,222.50. The procedure was authorized and the award is supported by substantial
evidence. Motion for Additur or New Trial

Clark contends that the trial court abused its discretion when it denied his
motion f or additur or new trial . He does not support his argument with any citation to the
record or e xplain th e reasons for his contention.

Our review d iscloses that Clark moved for additur or new trial on the ground that damages were inadequate, among other things. ( §§ 657, subd . 5 , 662.5, subd. (a).) He argued the trial court should have instructed the jury that damages were $76,500 or nothing and tha t the court ' s damage calculation was based on speculation about what the jury thought and on an arbitrary formula. The court did not abuse its broad discretion to determine whether grounds exist to grant a new trial. ( Aguilar v. Atlantic Richfield Co. (2 00 1) 25 Cal.4th 826, 859.) Its determination of the reasonable value of Clark ' s services is supported by substantial evidence in the record. Recovery of Costs
Clark contends the trial court erred when it did not award him costs because
he obtained an a ward $5,000 more favorable than Miller ' s offer under section 998. Clark does not support his contention with any citation to the record.

The trial court ' s statement of decision does acknowledge that Clark
obtained an award greater than Miller offered

. But section 998 does not authorize an award of costs to a defendant who rejects and then beats a plaintiff ' s offer.7 The trial court acted within its discretion when it determined there was no prevailing party. Neither party obtained relief on their t ort claims. Clark lost about $48,000 in claimed fees and did not recover on his claim for lost profit s, while Miller was ordered to pay $5,000 more than h e conceded he owed to Clark.
DISPOSITION The judgment is affirmed. Respondent shall recover costs on appeal.
NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.8 Phillip Argento, Judge
Superior Court County of Ventura

______________________________

Edward L. Clark, Jr., in pro. per., for Defendant, Cross

- Complai nant and Appellant. Law Offices of Daniel S. Miller, Daniel S. Miller for Plaintiff, Cross

Defendant and Respondent.