Filed 7/17/13 Stoddart v. Zamora CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

AL STODDART, Plaintiff and Respondent,

v. JOHN ZAMORA,

Defendant and Appellant. G047322

(Super. Ct . No. 30-2011-00471328)

O P I N I O N

Appeal from a judgment and orders of the Superior Court of Orange County, Richard Luesebrink, Ju dge (retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), and H. Michael Brenner, Judge. Affirmed. Law Office of Julie M. McCoy an d Julie M. McCoy for Defendant and Appellant. Pistone & Wolder, Thomas A. Pistone and Eric J. Medel for Plaintiff and Respondent.

* * *2 Al Stoddart sued John Zamora for breac h of an oral agreement to pay him 10 percent of a $6.2 million litigation settlement. The court entered judgment for Stoddart in the amount of $530,000 represen ting $620,000 minus $90 ,000 already paid. Zamora appeals, contending that either (1 ) the purported agreement is unsupported by consideration inasmuch as past considera tion cannot support a contract, or (2) the purported agreement is too in definite to be enforced. We are not persuaded. Stoddart pres ented evidence to sh ow that, after the litigation was settled, Zamora promised to pa y him 10 percent of the settlement proceeds, on the understanding that Stodda rt would perform certain futu re services. In reliance on that promise, Stoddart assisted Zamora w ith the settlement agre ement, with a press release, and with certain tax work. Furthermore, he was willing to provide such other services within his area of expertise as Za mora might require. His proffered evidence was sufficient to support th e judgment. We affirm.

I

FACTS A. Background: Stoddart, a certified public accountant, had been an officer and director of various large companies and had been in the printing industry since 1984. Zamora was running a printing company that was in dire fi nancial condition. Stoddart agreed to help out and started working for th e company part time for about $100,000 annually. He later became the chief operating office r, eventually earning a salary of $200,000 or $250,000

per year. Stoddart lined up a $9 million invest ment to keep the company afloat. However, after the deal was consummated, the company could not meet its financial covenants with the investors. So, the invest ors forced Zamora out of the company.3 Although Stoddart stayed on for a while longer, the investors ultimately wanted him out of the company too. At some point, Zamora told Stoddart that he was thinking about suing the investors. According to Stoddart, Zamora of fered to pay him 10 percent of any litigation recovery if he would help convince some attorneys to take the case on a contingency basis. Stoddart says he rejected the o ffer, out of fear that it would prejudice any testimony he might give. Further accordin g to Stoddart, after Zamora hired some attorneys, they recommended ag ainst an agreement for Stodda rt to receive a percentage of Zamora’s recovery. So, as far as Stod dart was concerned, he and Zamora had no agreement at that point. He simply intended “to work and help [Zamora] out for no agreement, and not expect anything.” Zamora affirms that he had no deal with Stoddart, and indeed says that he never ma de Stoddart any offer at all.

Stoddart testified that over the cour se of the litigation, he met with the attorneys at least a dozen tim es, helped them build the case, and reviewed and provided input on drafts of pleadings. He thought he may have put in several hundred hours on the litigation over a year and a half or two years. Stoddart said that, during his deposition, he provided key testimony on a tax issue, a nd the case was settled almost immediately thereafter for $9.2 million. According to Stoddart, shortly after the case settled, Zamora renewed the offer to pay him 10 percent of his recovery if Stoddart would “conti nue to help him.”

Stoddart stated that when Za mora initially made the postsettle ment offer to him, he did not identify any specific work that he wanted St oddart to do. Stoddart said: “The only thing that we talked about at the time was continuing to help him with the settlement agreement, whatever came up. And there wasn’t any other specifics. It was just to continue to help him in whatever might co me up.” They never addressed the period of time during which Zamora might expect Stoddart to help out. Ultimately, Stoddart4 reviewed and commented on the draft settlement agreement, helped draft a press release announcing the settlement, a nd worked on a couple of tax issues for Zamora. Zamora made monthly payments of $5,000 to Stoddar t from April 2009 through September 2010, totaling $90,000, and th en stopped. However, at trial, Zamora denied that he ever had any agreement with Stoddart to pay him for his assistance. Zamora acknowledged that he had been payi ng Stoddart $5,000 a month, but said it was purely out of generosity. Zamora further testified that when he started making the payments, he originally had in mind to pay Stoddart a total of $60,000, but wound up paying him more.

B. Jury Verdict and Judgment: The jury found: (1) “the contract te rms [were] clear en ough so that the parties could understand what each was required to do[;]” (2) “the parties agree[d] to give each other something of value[;]” (3) “the parties agree[d] to the terms of the contract[;]” (4) Stoddart did “all, or substantially all, of the significant things that the contract required him to do[;]” (5) “all the conditions [occurred] th at were required for JOHN ZAMORA’s performance[;]” (6) Zamora “fail[ ed] to do something that the contract required him to do[;]” (7) Stoddart was “harme d by that failure[;]” and (8) his damages were $530,000. The court entered judgment in favor of Stoddart in the amount of $530,000, plus costs a nd postjudgment interest.

C. Postjudgment Motions and Appeal: Zamora filed a motion for judgment notwithstanding the verdict and a

motion for a new trial. The court denied both motions. Zamo ra appeals from the judgment and the order denying his two motions.5 II

DISCUSSION

A. Introduction:

Zamora contends that to the extent the purported promise to pay $620,000 was based on Stoddart’s prior assistance during trial, it is unsupported by consideration, and to the extent the purported promise was based on Stoddart’s ag reement to perform services in the future, it was unenforceable because it was too indefinite. Stoddart

counters that Zamora fails to address whethe r there is substantial evidence to support the jury’s findings. He also says Zamora’s arguments concerning Stoddart’s past trial assistance are “misplaced.” Furthermore, Stodda rt says the evidence at trial showed that the parties had an enforceable agreement based on his performance and Zamora’s acceptance of that performance.

B. Substantial Evidence: Even though Zamora testified that he and Stoddart never had an agreement, the jury found that they did. Although the jury made no findings on the particular consideration supporting the contract or the natu re of the services Stoddart was to provide after the litigation was settled, it nonetheless fo und that Stoddart and Zamora each agreed to give the other something of value. “When we review a jury verdict, we apply the substantial evidence standard

of review. All conflicts in the evidence are re solved in favor of the prevailing party, and

all reasonable inferences are drawn in a manne r that upholds the verd ict. [Citations.]” ( Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445.) Stoddart’s testimony, although contradictory to Zamora’s, constituted subs tantial evidence that the parties had an agreement. (Evid. Code, § 411; Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95, 117.)6 Stoddart testified that he felt he wa s owed the $620,000 at least in part because of past services rendered. At the same time, he also testified that, as part of the deal, he agreed to continue providing services to Zamo ra after the settlement was

reached. Stoddart further testified that th e agreement for Zamora to pay him $620,000 for his services arose only after the litigati on was settled. Stoddart ’s testimony provides substantial evidence to sup port the jury’s finding that he and Zamora reached an agreement.

C. Past Services as Consideration: This leads us directly to Zamora’s first point. He argues that Stoddart’s assistance rendered during th e litigation could not serve as consideration for the agreement purportedly reached only after the litigation was set tled. We agree. “Past consideration cannot support a contract. [Citation.]” ( Passante v. McWilliam (1997) 53 Cal.App.4th 1240, 1247; see also Dow v. River Farms Co. (1952) 110 Cal.App.2d 403.) Furthermore, any promise made only after se rvices have been performed without the expectation of payment is nothing “more th an a promise to make a gift and is unenforceable.” ( Dow v. River Farms Co., supra, 110 Cal.App.2d at p. 411.) The jury found that Stoddart did “all, or substantially all, of the significant things that the contract requi red him to do” and that “all the conditions [occurred] that were required for JOHN ZAMORA’s performance .” This could be interpreted to mean that Stoddart had completed all of the wo rk required of him to trigger Zamora’s obligation to pay $620,000, an d that no additional services remained to be performed. However, if the jury concluded that Zamora had offered to pay $620,000 exclusively for services rendered in the past , then the contract was unsup ported by consideration and unenforceable. ( Passante v. McWilliam , supra , 53 Cal.App.4th at p. 1247; Dow v. River Farms Co., supra, 110 Cal.App.2d 403.) We turn, then , to the question of whether the7 evidence supports a finding th at an enforceable agreement arose only after the litigation

was settled.

D. Indefinite Terms: “‘Under California law, a contract w ill be enforced if it is sufficiently definite (and this is a question of law) for th e court to ascertain the parties’ obligations and to determine whether those obligations have been performed or breached.’ [Citation.] ‘To be enforceable, a promise mu st be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the asse ssment of damages.’ [Citations.] ‘Where a

contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.’ [Citations.] ‘The terms of a contract are reasonably certai n if they provide a basis for determining the existence of a breach and for giving an approp riate remedy.’ [Citations .] But ‘[i]f . . . a supposed “contract” does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have b een breached, there is no co ntract.’ [Citation.]” ( Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209.) Zamora argues that any contract betwee n the parties is too indefinite to be enforceable. We disagree. True, as Stoddart testified, the agreement between the parties did not specifically identify th e postsettlement tasks he was to perform. However, shortly after the parties entered into their agreement, Stoddart did, as requested, assist in the

documentation of the settlement agreement and he also drafte d a press release concerning the settlement. Thereafter, he did some tax work Zamora requested , on more than one occasion and with respect to mo re than one issue. Although Stoddart could not identify any particular tasks he had pr omised to perform in the futu re, he stated that he had8 committed to “continue to help [Zamor a] in whatever might come up.” As Stoddart says, he provided serv ices to Zamora after the settlement agreement was reached and Zamora accepte d those services and paid for them. Therefore, the course of dealing between the parties demonstrates the scope of the contract. “That the actions of the partie s should be used as a reliable means of interpreting an ambiguous contract is, of course, well settled in our law.” ( Crestview Cemetery Assn. v. Dieden (1960) 54 Cal.2d 744, 752-753.) Put another way, “‘when a contract is ambiguous, a cons truction given to it by the acts and conduct of the parties with knowledge of its terms, before any cont roversy has arisen as to its meaning, is entitled to great weight, and will, when reas onable, be adopted a nd enforced by the court.’” ( Id. at p. 753.) “When the parties perform without objection u nder a contract the terms of which appear to be indefinite, they have indicated that its terms were sufficiently certain so that they, at l east, could perform it.” ( Bohman v. Berg (1960) 54 Cal.2d 787, 796.) “‘“The law does not favor but leans ag ainst the destruction of contracts because of uncertainty; and it will, if feasible, so constr ue agreements as to carry into effect the reasonable intentions of the parties if that can be ascertained. . . .”’ [Citations.]” ( Id. at p. 797.) Inasmuch as Stoddart performed certain postsettlement services and Zamora paid $90,000 for them, it is fair to say that Zamora accepted those services. Stoddart reviewed some postsettlement documen tation and assisted in the preparation of a postsettlement press release. In addition, he assisted with two items of postsettlement

tax work. Stoddart testified that he assist ed Zamora’s accountant with the determination of the tax basis of the company and with a response to certain Franchise Tax Board notices regarding the failure to provide in formation concerning the company. This evidence shows that, after the litigation settled, Stoddart continued to perform services9 within his area of expertise, such as one would offer under a consulting services agreement, as need ed by Zamora. We cannot conclude that the purported contract is too indefinite to be enforceable. This, as we have no ted, is a question of law. ( Bustamante v. Intuit, Inc. , supra , 141 Cal.App.4th at p. 209.)

E. Motion for Judgment No twithstanding the Verdict: Zamora filed a motion for judgment notwithstanding the verdict, on the same general grounds as raised in this appeal . He contends the court erred in denying the motion, and maintains the contract was legall y unenforceable. We disagree, for the same

reasons as stated above. “A motion for judgment no twithstanding the verdict may be granted only if it appears from the evidence, view ed in the light most favorable to the party securing the verdict, that there is no substantial ev idence in support. [Citation.]” ( Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) Here, the jury found, in essence, that the parties entered into a cont ract, each party agreed to give the other something of value, Stoddart did what was required of him under the contract, and Zamora failed to pay. Substa ntial evidence, as discussed abov e, supports these findings. The motion for judgment no twithstanding the verdic t was properly denied.

F. New Trial Motion: (1) Introduction—

“We defer to the trial court’s factual determination when the court grants a motion for new trial, not when the court denies such a motion. When the court denies the motion, we presume the jury’s verd ict is correct. [Citation.]” ( Mammoth Lakes Land Acquisition, LLC v. To wn of Mammoth Lakes (2010) 191 Cal.App.4th 435,473.)10 “Code of Civil Procedure section 657 states: ‘A new trial shall not be granted upon the ground of insuff iciency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing

the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should ha ve reached a different verdict

or decision.’ A trial court has broad discre tion in ruling on a new trial motion, and the court’s exercise of discretion is accorded gr eat deference on appeal. [Citation.] An abuse of discretion occurs if, in light of the applic able law and considering all of the relevant circumstances, the court’s decision exceed s the bounds of reason and results in a miscarriage of justice. [Citati ons.] Accordingly, we can reverse the denial of a new trial motion based on insufficiency of the evidence or excessive damages only if there is no

substantial conflict in the evidence and th e evidence compels th e conclusion that the motion should have been granted.” ( Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 751-7 52.) That is not the case here. (2) Original motion— In his new trial motion, Zamora argue d there was insuffici ent evidence to support the jury’s findings, the verdict was against the law, and the damages were excessive. He primarily reargued the eviden ce and issues we have already addressed above. In addition, he devoted a small portion of his motion to the a ssertion that the jury awarded excessive damages. He argued that he was entitle d to a new trial on damages because the damages either were not recovera ble at all or were excessive in amount. With respect to nonrecoverable dama ges, Zamora made two arguments. First, he said no contract was ever create d between the parties so any damages award at all was excessive. As we have already said , however, substantial evidence supports the jury’s finding that a contract was created. Second, Zamora said that damages could not be awarded for presettlement work. We have already disposed of that argument as well,11 having determined that the contract arose after the litig ation was settled and that postsettlement services provided the co nsideration supporting the contract. With respect to postsettlement servic es, Zamora said in his motion, albeit without citation to legal author ity, that even if Stoddart we re entitled to compensation for such services, he “never identified a proper amount owed to him for such work or even a way to measure the value of th at work.” To the contrary, Stoddart asserted that Zamora promised to pay him $620,000 under a contract arising after the litigation had settled, that Stoddart had performed all serv ices requested of him, and th at Zamora refused to pay the $620,000 contract amount. Stoddart claimed that the damages he suffered were equal to $620,000 minus the $90,000 paid, or $530,000, and the jury so found. (3) Arguments on appeal— On appeal, Zamora attempts to re cast his new trial motion, raising new legal theories and citing author ities he did not put before the trial court. Now, he says that: (1) if Stoddart’s performance under th e contract was complete, then the contract was a unilateral one, and Stoddart’s recovery wa s limited to the amount of the installment payments owing as of the time of trial (see, e.g. Cobb v. Pacific Mutual Life Ins. Co. (1935) 4 Cal.2d 565, 571-573; Minor v. Minor (1960) 184 Cal.App.2d 118, 122-123); or (2) if Stoddart’s performance under the cont ract was not complete, his recovery was

limited to the reasonable value of the servic es he had performed, under a quantum meruit theory (see Cambridge Co. v. City of Elsinore (1922) 57 Cal.App. 2 45, 247), but Stoddart had failed to raise a quantum meruit theory at trial and even under a quantum meruit theory the damages award was excessive. We generally do not consider new theories raised fo r the first time on appeal. ( Hogan v. Country Villa Health Services (2007) 148 Cal.App. 4th 259, 269.) However, we may consider new theories which present questions of law based on undisputed facts. ( Mito v. Temple Recycling Center Corp. (2010) 187 Cal.App.4th 276,12 279; De Anza Santa Cruz Mobile Estates Ho meowners Assn. v. De Anza Santa Cruz

Mobile Estates (2001) 94 Cal.App.4th 890, 908.) The problem here is that the issues

raised are not based on undisputed facts. The first factual question, that Zamo ra raises, is whether Stoddart fully performed all of the wo rk the contract required him to do or whether he was required to perform such future services as Zamora migh t require of him. The second question that

arises is whether the contr act required a one-time payment of $620,000 or whether it was an installment contract. The third questio n that arises is the reasonable value of Stoddart’s services. Clearly, these questions are based on disputed facts pertaining to which the record contains conflicting evidence. 1 Consequently, it is inappropriate for us to consider Zamora’s new theories on appeal.

III

DISPOSITION The judgment and orders are affirmed . Stoddart shall recover his costs on appeal.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.

1 We reject Zamora’s argument that, inas much as only Stoddart testified to the existence of a contract, the facts are undisputed for the purposes of a ppeal. In any event, we cannot say that Stoddart’s testimony sta nding alone is a model of clarity and not subject to interpretation.