Filed 7/22/14 Sommer v. Brave CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

KATHLEEN SOMMER, Plaintiff and Appellant,

v. GEORGINE F. BRAVE et al., Defendants and Respondents. D0 6 4015

(Super. Ct. No. 37

- 2009

- 00099705

- CU

- PN

- CTL)

APPEAL from a judgment of the Superior Court of San Diego County, K evin A.
E nright , Judge. Affirmed. Kathleen Sommer, in pro. per . , for Plaintiff and Appellant. Wingert Grebing Brubaker & Juskie , Charles R. Grebing and Deborah S. Dixon for Defendants and Respondents.
A jury rendered a defense verdict in this legal malpractice action, f inding there was no causation of harm as alleged by p laintiff and appellant Kathleen Sommer , from the professiona l conduct of defendant and respondent Georgine F. Brave and her firm, Brave, Weber & Mack, APC (together, Brave) . Sommer ' s action for damages alleg ed2

that Brave ' s representation of Sommer ' s mother, Gloria Moser (Gloria), in an underlying family law and tr ust matter shortly before Gloria died, was substandard and improperly reduced Sommer ' s inheritance . Brave assisted Gloria in filing for legal separation from Gloria ' s husband, Bill Moser (Moser), and in preparing a quitclaim deed intended to implement Gloria ' s wishes that Sommer should inherit all of Gloria ' s 50 percent interest in the condominium in which Gloria and Moser were living (the real property). In October 2009, Sommer brought this legal malpractice action against Brave , alleging s he had fall en below the applicable standard of care in representing Gloria. In 2010, Sommer and Moser took their probate court dispute to mediation and executed a written settlement agreement to resolve their disputes and dismiss the probate court proceedings (the s ettlement agreement). Moser paid Sommer $250,000 to settle th os e disputes. Eventually, Sommer went to jury trial against Brave on the theory that the compensation she had received from Moser in probate court did not include an y amount representing her lo st 25 percent interest in the real property , and thus the rest of her alleged damage ( $ 115,625 ) was directly att r ibutable to Brave ' s negligence in representing Gloria

. At trial, the court excluded the settlement agreement from evidence. (Evid. Code, § 11 19 [mediation privilege]; all further statutory references are to this code unless noted.) Ultimately, t he jury ' s verdict determined that Sommer had timely filed her action, and Brave had been negligent, but there was no causation of harm to Sommer from t hat negligence.3

Sommer argues on appeal that she provided substantial evidence at trial of monetary loss from her expected inheritance, caused by Brave, because the value of
Sommer ' s lost 25 percent interest in the real property was n ot covered by the settlement agreement as she understood it . She claims that b ut for certain prejudicial defense attorney misconduct dur in g closing argument, she would have prevailed and obtain ed such damages against Brave for legal malpractice

. Specifically, Sommer conte nds that when Brave ' s attorney referred in closing argument to an admitted exhibit, a letter from probate counsel for Moser responding to demands by probate counsel for Sommer (Exh

. No. 82 , " the Jan uary 2009 H ickman letter " ) , t he attorney did so in a misle ading light that knowingly disregarded certain rulings that were issued upon his own motion in limine . That defense motion was addressed to a different exhibit , the settlement agreement, Exhibit No. 108 . According to Sommer, the trial court ' s rulings about the permissible scope of evidence to be presented about the negotiations and terms of the settlement agreement (e.g., its allocation to her different alleged items of damage), were broad enough to f or bid such argumentative references to Exh ibit No. 82. However, during those closing arguments, Sommer did not raise any objection s

nor did she ask for any curative admonition or instruction about the alleged misconduct by Brave ' s counsel. Sommer has not shown that she acted to preserve her clai ms, such as by bringing her own motion in limine to further restrict the permissible scope of evidence

or any comment by counsel relating t o the probate court settlement negotiations and /or the compensation paid by Moser. (See People v. Morris (1991) 53 C al.3d 152, 1904

( Morris ) [motion in limine to exclude evidence may constitute a " sufficient manifestation of objection to protect the record on appeal " ].) Even assuming Sommer adequately preserved her arguments about defense attorney misconduct, this was not a case of severe or extreme attorney misconduct. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794

- 795 ( Cassim ) [ " In addition to objecting, a litigant faced with opposing counsel ' s misconduct must also ' move for a mistrial or seek a curative admonition ' [citation] unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice. " ) On the overall

rec ord, we have no basis to conclude that Brave ' s counsel exceeded the scope of permissible argument or commentary upon the admitted exhibits or upon the general topic of the disputes leading to the settlement agreement. T he trial court ' s rulings that limite d the admissibility of evidence about the scope and contents of the settlement agreement were appropriate to the history of that document . However , as part of this trial within a trial, the court allowed the jury to hear , to some extent, the participants ' testimony about the different positions taken by the parties at various stages of the dispute . The comments and argument made to the jury by defense counsel were accordingly within appropriate bounds and did not undermine the validity of the judgment

. W e affirm.

FACTUAL AND PROCEDURAL HISTORY
A. Dispute and Gl o ria ' s Assets ; Prior Appeal on Limitations Ruling
Brave previously obtained a grant of summary judgment in her favor in this malpractice action, on the grounds that Sommer ' s action was barred by the applicable5

statute of limitations. (Code Civ. Proc., § § 437c; 340. 6 .) However, in a prior nonpublished opinion of this court ( Sommer v. Brave (July 30, 2012, D058476 ) ; our prior opinion), we reversed the defense summary judgmen t and returned the matter to s uperior

c ourt for trial on the merits. We noted that the trial court had not yet reached any of the issues about whether Brave had breached the applicable standard of care through the manner in which s he structured the quitcl aim deed transaction , or whether there was any proximate causation of injury to Sommer. We expressed no opinion upon those issues. Over a period of about five weeks in late 2006 through early 2007, Brave carried

out Gloria ' s instruction s to fil e a petiti on for legal separation and prepare a quitclaim deed affecting title t o Gloria ' s 50 percent interest in the real p roperty where she lived with
Moser (stepfather of Sommer) . It is not disputed that Gloria intended that Sommer receive her entire interest in the real property, as well as some personal property, by way of Brave ' s quitclaim deed transaction and a related trust that was prepared by different counsel ( K aren M. La dner; not a party at trial)

. A fter Gloria died , the disputes between Sommer and Moser about ownership of real and personal property contin ued, and Sommer repeatedly asked Gloria ' s attorneys about the status of the transfer of her interest s . Sommer also c ommunicated in 2007 with
Moser ' s attorney and in 2008 with a friend of Moser, about her ongoing claim to 50 percent ownership of the real property.
In the fall of 2008 , Sommer retained her own probate attorney , who corresponded several times with Moser ' s attorney about Gloria ' s instructions o n Sommer ' s inheritance.
Sommer ' s probate attorney demanded that Moser comply with Gloria ' s wishes, including6

transferring to Somm e r a 50 percent interest in the real property. In the Jan uary 2009 Hickman letter ( E xh. No. 82) , Moser ' s attorney Hickman responded that (a) Moser was not going to accede to any of Sommer ' s demands, and (b) Moser believed Gloria , Sommer or her relatives had unlawfully taken money and property belonging to him

. In May 2009, Sommer filed a petition to settle Gloria ' s assets in probate court. She filed this legal malpractice action against Brave in Oct ober 2009. After further negotiations between the probate court attorneys, Sommer agreed in April 2010 that she would dismiss her claims in return for $250,000 compensation from Moser

. The settlement agreement allowed Sommer to allocate in writing , for her own purposes, the amounts of compensation she had received according to each dispute d item (coins, promissory note, real and personal prop erty)

.

B. Trial o n Legal Malpractice Claims; Jury V erdict Initially, t he trial court ruled upon motions in limine that were brought to identify whether the malpractice issues to be decided were legal or factual in nature. T he court held a bench trial , on expert testimony , to decide the legal effect of Brave ' s quitclaim deed between Gloria and Moser . The court ruled that the effect of the deed was to sever the joint tenancy for the real property, and then to create a 75 percent interest in the real
pr operty for Moser and 25 percent interest to Gloria. Next, t he jury was impaneled and opening statements presented. During
Sommer ' s testimony, her counsel offered the Jan uary 2009 Hickman letter into evidence and argued that it spoke for itself, with re gard to explaining Moser ' s position during the7

settlement negotiations. 1 Sommer claimed that the Jan uary 2009 Hickman letter ha d the effect of finally put ting Sommer on notice that Moser was claiming a 75 percent interest in the real property. He r attorney told the jury that eventually, the settlement agreement concluded the probate matters, and Sommer was now seeking damages from Brave for the 25 percent interest in the property that she did not receive. The parties stipulated that the current val ue of 25 percent of the real property was $ 115,625. Regarding Sommer ' s claimed damages, her expert witness examined documents produced by Brave and other attorneys in the probate case, and gave the opinion that Gloria ' s instructions to Brave were to break the joint tenancy on the real property (achieved) and to enable Gloria to transfer a 50 percent ownership in the property (not achieved). T he manner in which Brave drafted the quitclaim deed was mistaken and Gloria retained only a 25 percent interest in it that was subject to transfer, through her trust that was created at the same time. In response, attorneys for Brave argued she had not been negligent and had not caused any loss . Brave testified that she acted according to her instructions or " marchin g orders " from Gloria, which were to take immediate action to break the joint tenancy, but to leave Moser ' s name on the title in some way, to avoid further infuriating him. Brave also presented Hickman ' s testimony about his recollection of the probate dis pute, from
Moser ' s point of view.

1 Although Sommer inexplicably argues that only one page of Exh ibit No. 82 was admitted into evidence, the record instead shows that her counsel examined her about it and then specifically called one of its three pages to the attention of Hickman as a witness. The exhibit as a whole was admitted without ob jection or further comment.8

When Sommer sought to have the settlement agreement (Exh

. No. 108) admitted into evidence, Brave ' s attorney brought a motion in limine to restrict references to the settlement negotiations and agreement, on the grounds th at such mediation communications were privileged under section 1119. The court held discussions on those issues at several points during trial, during testimony of Sommer, Brave, and Hickman. Eventually, t he court excluded the settlement agreement on the ground s that it was privileged material that was never filed in the probate court file and Brave was not a party to it. However, the court gave counsel some leeway to explore Sommer ' s understanding of the allocation of the settlement compensation, as it affected her damages claims against Brave. Both counsel were told to avoid relitigating the whole probate dispute.
D efense counsel c ross - examin ed Sommer about the language in the settlement agreement, " $250,000 settlement paid over by Moser to Sommer is allocated by Sommer for her own purposes as follows. " Sommer testified that when the probate action was settled, this malpractice lawsuit was already pending, and it had some effect upon her decision to settle the probate matters. She received money from Moser and he received the real property. In settlement, Sommer placed the real property interest then received at $120,000 of the settlement funds, and $88,000 as the debt due from Moser to Gloria on his promissory note. $22,000 was identified in the se ttlement as payment in exchange for coins collected by the couple, some of which she believed were owned by Gloria ' s trust.9

Both Sommer and Hickman testif ied that Moser declined to participate in any allocation (with one exception, that $20,000 was to be paid directly to Sommer ' s two daughters). In closing argument, Brave ' s attorney first argued there had been no breach of the expected duty of care under the circumstances in which Brave was required to act immediately , due to the information Sommer gave h er about Gloria ' s impending death. Also, he pointed out that the problems with the quitclaim deed were apparently not recognized by anyone before the probate action was settled. He also argued that despite the settlement, Sommer had never proved her entitlement to compensation for the coins, or the proceeds of Moser ' s promissory note, or that Moser had ever agreed to Sommer ' s allocation of compensation for the items covered by the settlement agreement . Thus, he argued it was unclear whether Sommer had actually been damaged with respect to the value of the real property

. Brave ' s attorney further argued to the jury that it could consider the contents of the
Jan uary 2009 Hickman letter ( E xh

. No. 82 ) , in determining whether a better resu lt would have been reached if Brave had acted differently. He contended that Brave ' s conduct in preparing the quitclaim deed was not the cause of Sommer ' s loss in the underlying action, and that the $250,000 compensat ion she had already received from Moser in the settlement agreement was approximately the value of a 50 percent interest in the real property ( i.e., double the $ 115,625 stipulated amount for a 25 percent interest)

. He then commented : " I also have to ask you to take into account a n issue with respect to

-- and I don ' t mean this in a derogatory sense. But look at Mr. Hickman ' s letter of January 27,10

2009. We don ' t need it right now. But spend some time with it, and look at the reasons behind the fact that the claims that are being made by M s. Sommer under these circumstances are really not valid claims when considering all of the factual related to it [sic]

. [¶] I will leave that reading to you. It is not productive for me to read it to you and talk about it under these circumstances

. But I ask that you look at the interplay of this with respect to the question of whether or not there could have been either a better result or different result

. " ( Italics added .)
Brave ' s attorney nex t argued that Sommer should not have been surprised that Moser did not cooperate with Gloria ' s severance of the joint tenancy, since Sommer was claiming he was breaking promises to her about her expected inheritance rights . Counsel thus contended that Somm er did not take timely action to protect any rights she had , by filing the lawsuit earlier

. At the conclusion of testimony, the jury was instructed about the applicable professional standard of care and about the ru l es for considering the evidence, and th at argument of counsel was not evidence

. Ultimately, the jury ' s verdict found that
Sommer ' s action was timely filed, and that Brave had been negligent in her legal representation of Gloria, but that Brave had not caused Sommer ' s harm or loss.
C. Notes on Appellate Record
Sommer filed a timely notice of appeal from th e judgment on the verdict. In addition to a minimal clerk ' s transcript and the reporter ' s transcript of trial, numerous trial exhibits that were offered or admitted into evidence have been lodged. This includes the January 2009 Hickman letter (Exh. No. 82), as well as a full copy of the settlement11

agreement, even though it was excluded from evidence (E xh

. No

. 108 )

. Both parties acknowledge that Sommer was allowed to testify abou t its contents. The transmitted exhibits also include a full copy of Exhibit No. 29, Gloria ' s financial records , even though only a few pages of Exhibit No. 29 were actually admitted into evidence

. Sommer nevertheless claims on unspecified grounds that a ll of it should be considered , which we cannot do

. A lthough Sommer requested that certain p oints and

a uthorities and related opposition , filed in connection with in limine motions , should be

" transmitted " as well, this was not done because they were not " exhibits

. " (Cal. Rules of Court, rule 8.224(b)(2).) She has no t made any augmentation request for that material

. (Cal. Rules of Court, rule 8.155(a).)
T he record has been augmented to include the transcript of Sommer ' s February 2013 video deposition, as well as its two exhibits ( one of which is another marked, but not admitted, copy of the settlement agreement). However, the record does not show that the jury was given access to that evidence.
DISC USSION
Sommer claims that she did not get a fair tria l, through no fault of her own. She contends that defense counsel ' s closing argument egregiously mischaracterized the evidence, by referring to the contents of the January 2009 Hickman letter in a manner that contravened related rulings at trial that excl uded the settlement agreement (Ex h

. No. 108)

. Those related rulings, she claims, were broad enough to put the parties on notice that the trial court did not intend to allow any evidence or argument about the negotiations leading up to the settlement agree ment , such as Moser ' s initial rejections of12

her counsel ' s demands , a s described in the Hickman letter

. Alternatively, she argues her own trial counsel was not required to raise any objections at trial, to preserve these objections on appeal. ( Cassim, sup ra , 33 Cal.4th at pp. 794

- 795.)
I
APPLICABLE STANDARDS
W e apply basic guidelines for review. As the appellant, Sommer has the burden of providing an adequate record and of showing that error occurred and that it was prejudicial. ( Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295

- 1296; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 ( Aguilar ).) Absent an adequate record to demonstrate error, a reviewing court presumes the judgment or order is supported by the evidence. ( In re Angel L. (2008) 159 Cal.App.4th 1127, 1136

- 1137.)

" In propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the [procedural and court] rules. " ( Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) Sommer pursues these appellate claims in propria persona, and we take the appellate record as presented to us, to examine the validity of her claims of prejudicial misconduct of opposing counsel. The elements of a cause of action for legal malprac tice arising from a civil case

are " (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach a nd the resulting injury; and (4) actual loss or damage resulting from the attorney ' s negligence. " ( Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199

- 2000.)13

" In both litigation and transactional malpractice cases, the crucial causation inquiry is wha t would have happened if the defendant attorney had not been negligent. This is so because the very idea of causation necessarily involves comparing historical events to a hypothetical alternative. " ( Viner v. Sweet (2003) 30 Cal.4th 1232, 1242 ( Viner ) ; o riginal italics .) T here is a " myriad of variables that affect " litigation, as well as settlements of same, all playing into the causation and damages equation. ( Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 66 3 .) " ' Proof of legal malpractice requires proof not only of negligence by the lawyer but also of causation, a trial within a trial to establish that, but for the lawyer ' s negligence, the client would have prevailed in the underlying action. ' " ( Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853 , 864.)
II
ST ANDAR DS FOR EVALUATING EFFECT OF ALLEGED MISCONDUCT OF COUNSEL The factors to be evaluated in determining the effect of attorney misconduct, i n light of the overall record of trial, include the nature and seriousness of the remarks, the general atmosphere of the trial, the likelihood of prejudicing the jury, and consider ation of whether an objection or admonition would have been effective. ( Sabella v. Souther n Pac. Co. (1969) 70 Cal.2d 311, 320

- 321.) " Generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished. [Citations.] The purpose of the rule r equiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of14

prejudice by repeated improprieties, thus avoiding the necessity of a retri al. . . . In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice. " ( Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 6 10.)

" The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice

. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect o f reversal. " ( Morris , supra , 53 Cal.3d 152, 187

- 188.) Such a ruling or admonition prevents the need for a court to attempt to " ' unring the bell ' " and to remove any prejudice from counsel ' s remarks. ( I bi d

. ; Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337 [ rulings on mot ions in
lim ine should avoid the need for any " obviously futile attempt to ' unring the bell ' in the event a motion to strike is granted in the proceedings before the jury " ].) The requirements for timely objections to perceived problems with evidence can be disregarded in a proper case, without offendi ng s t atutory principles : " ' In
summary . . . a motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific leg al ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a15

motion is made and denied, the issue is preserved for appeal. " ( Morris, supra, 53 Cal.3d at p

. 1 90 .) 2
I n the exceptional case in which an admonition would not have cured the effect of attorney misconduct committed in front of a jury, a party ' s failure to request an admonition does not serve to waive appellate rights on the issue . ( Cassim , supra , 33 Cal.4th 780, 794

- 795.)
III

ANALYSIS OF ATTORNEY MISCONDUCT CLAIMS

A. Testimony and Rulings This malpractice " trial within a trial " dealt not only with Brave ' s role in the history of the probate court dispute, but also the timeliness of Sommer ' s claims. On the disputed statute of limitations issues, Sommer repeatedly referred to the January 2009 Hic kman letter as supporting her claim that she did not understand until she received it that she did not have a good claim to a 50 percent interest in the real property. Sommer ' s counsel did not object when the court admitted it into evidence, nor during th e defense closing argument.

2 Section 353 provides: " A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an o bjection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and (b) The court which passes upon the effect of the error or errors is of the opinion that th e admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice. "16

Sommer relies on certain portions of the record as supporting her claim that the trial court ' s extended colloquy with counsel, and its ruling that excluded the written settlement agreement, should be deemed to additionally fore close argument by counsel about the January 2009 Hickman letter. When Sommer started to explain during her testimony how the real property factored into the amount of the settlement, the court went into recess and discussed the pending motion in limine wi th counsel. Defense counsel preliminarily argued the settlement agreement should be excluded under section 1152 ( inadmissibility of offers to compromise to show liability ) . At that time, the court explained that cross

- examination was the proper way to examine Sommer ' s opinions about the settlement amounts ( saying, " so have at it " ), but it deferred ruling on the admissibility of the settlement agreement. The court returned to the in limine motion about the settlement agreement during
Brave ' s testimony, and defense counsel additionally argued that the exhibit should be excluded under section 1119, the mediation privilege. The court agreed and exclud ed the settlement agreement

. While Hickman was testifying on behalf of Brave, he explained that he did n o t remember the January 2009 letter ( E xh. No. 82) that he wrote to Sommer ' s probate attorney, in which Moser had initially rejected all of Sommer ' s demands. Hickman did remember that several letters were exchanged between counsel in the probate matter. He generally said that Moser did not specifically allocate anything toward the overall settlement , except for the payments to the two daughters

. Sommer ' s attorney objected to such questioning on the grounds that it was cumulative or prejudicial under section 352,17

because the Hickman letter spoke for itself with respect to Moser ' s claims or defenses at the time regarding Sommer ' s settlement demands. The court ruled on the objections by stating that Hickman could be cross

- examined about his knowledge of the pr obate disputes, but the court did not want to relitigate the probate settlement, and counsel should not " dive deep. "
B . Misconduct Arg ument s ; Waiver Sommer contends that the trial court ' s rulings , taken as a whole, permitted admissibility of the Januar y 2009 Hickman letter only for some limited purposes ( i.e., timing issues and allocation of settlement funds), but not others (Moser ' s substantive

statements ab o ut his position in the dispute ). She objects to the way in which defense counsel argued the ef

fect of that letter, in which Hickman reported that Moser was not going to pay Sommer anything, and Moser believed Gloria, Sommer, or their relatives had unlawfully taken money and property belonging to him. Sommer contends that use of the letter in argum ent was unduly prejudicial, because no such unlawful takings were ever proved. She claims that defense counsel exceeded the bounds of proper argument about the evidence, and reversal of the judgment is required. ( Morris, supra , 53 Cal.3d at
p p . 18 7

- 188 .)
T o preserve Sommer ' s arguments about the Jan uary 2009 Hickman letter, the
related Exh ibit No. 108 motion in limine had to raise " a specific legal ground for exclusion, " that is now being raised on appeal, on the topic of arguable misconduct of defense co unsel. ( Morris, supra , 53 Cal.3d at p. 19 0 .) Also, the Exh ibit No. 108 motion in limine had to be " directed to a particular, identifiable body of evidence, " that was18

common to Exh ibit No. 82 as well. ( Ibid .) H ow e ve r, Sommer never requested the trial

co urt to instruct the jury to disregard the portion of the Jan uary 2009 Hickman letter in which he stated that Moser believed Gloria or Sommer were guilty of taking his property. Sommer did not claim at trial that t h e letter was not pertinent to the legal i ssues presented about the overall dispute or the part that Brave played in it. Rather, she sought to have it introduced into evidence, to support her delayed discovery claims. This record does not support a conclusion that the discussion and rulings on t he motion in limine to exclude the settlement agreement (regarding the mediation privilege or hearsay) amounted to, or substituted for, more specific discussion and rulings that would have expressly or impliedly limited the use of the January 2009 Hickman letter in argument. Rather, the two exhibits were treated separately , both during the in limine proceedings and the relevant testimony, with respect to their content and the reasons they were being offered. Sommer has failed to show that the Exh ibit No. 108 motion in limine

w a s " made at a time before or during trial when the trial judge can determine the [subject] evidentiary question in its appropriate context. " ( Morris, supra , 53 Cal.3d at
p. 190 .) In context, d ifferent issues were being raised about Sommer ' s allocation of the settlement funds in 2010, and about the Jan uary 2009 Hickman letter as identifying the status of the dispute

. We disagree that Sommer was excused from an obligation to object to any perceived problems with the admissibility of the Jan uary 2009 Hickman letter, as a whole, or to defense counsel ' s argument about it. That letter r e presented an early stage of the negotiations, and it was used by Sommer for that reason, to support her claim of19

delayed discovery of her problems with h er claim to the real property. S he affirmatively argued its effects without seeking any limitations on its use

. This is not a case in which an admonition or instruction, even if requested or made, would have been futile and could not have cured any poten tial prejudice from defense counsel ' s statements encouraging the jury to consider this admitted evidence. S ommer has essentially waived her right to assert misconduct of counsel occurred when he referred to that letter during argument.

C . Even if Cogniza ble, Sommer ' s Claims L ack Merit Even assuming Sommer did not waive these attorney misconduct arguments, section 353, subd ivision (b) requires that a judgment shall not be reversed for any error related to a ruling in limine on an evidentiary matter, unles s the reviewing court concludes there was error that resulted in a miscarriage of justice. In view of the overall record, t he comments in the January 2009 Hickman letter about the many disputed topics between Sommer and Moser were not unduly emotional or inflammatory, because the jury already knew that the ir attorneys in the probate court had started negotiating the heated dispute on a n adversary basis , and that there were a number of items of Gloria ' s property involved. ( Sabella v. Southern Pac. Co., supra , 70 Cal.2d 311, 321.) For example, Hickman was allowed to testify that Moser wanted $20,000 of the
settlement funds to be earmarked for Sommer ' s d aughters, not Sommer, and that was enough to reach settle ment of the probate cas e. The trial court appropriately allow ed counsel some leeway to explore the settlement co mponents , which was un derstandable under the " case within a case " method of dispute re solution

. D efense counsel ' s refere nces in closing argument to the Jan uary 2009 Hickman letter , as background about the dispute ,20

did not amount to mischaracteri zations of the evidence or t o prejudicial new information. The jury was not unduly distracted f rom focus ing on the evidence and legal issues presented about Brave ' s professional conduct , because the references to the Jan uary 2009 Hickman letter did not go far beyond the circumstances already brought into evidence.
Th e trial court had no sua sponte obligation to criticize the defense arguments or to instruct the jury they were improper. ( Cassim, supra , 33 Cal.4th 780, 794

- 795.) Finally, it is not enough for Sommer to argue that substantial evidence existed in Gloria ' s financial records about the value of the marital assets (only some of which were admitted into evidence), such that her evidence would have supported a judgment for damages in her favor, " but for " the allegedly prejudicial closing argument. Merely because Sommer succeeded in getting some of Gloria ' s records into evidence does not show that it was Brave ' s negligence that caused Sommer ' s problems with her projected inheritance. Instead, t here was a " myriad of variables " in the settlement of the probate case, which included t he role played by Brave ' s earlier representation of Gloria . T hose circumstances w ere fully presented to the jury , and the evidence did not require i t to make a causation finding favorable to Sommer. (See Thompson v. Halvoni k, supra, 36 Cal.App.4th 657, 6 6 3 .) Sommer has not carried her burden of showing that error, harmful or otherwise, is apparent on the face of the record and l ed to this defense verdict

. ( Aguilar , supra, 21 Cal.4th 121, 132 .)21 D ISPOSITION The judgment is affirmed. Costs on appeal are awarded to Respondents

.

HUFFMAN, Acting P. J.
WE CONCUR:

McDONALD, J.

McINTYRE, J.