Filed 12/16/21 Britton v. Riggs CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

LAYNE LESLIE BRITTON,

Plaintiff, CrossDefendant, and 

Respondent,

v.

CONRAD RIGGS et al.,

Defendants, CrossComplainants, and 

Appellants.

 B303446

 (Los Angeles County

 Super. Ct. No. BC496298)

APPEAL from the judgment of the Superior Court of 

Los Angeles County, Frederick C. Shaller, Judge. Reversed and 

remanded.

Browne George Ross O’Brien Annaguey & Ellis, Eric M. 

George and Richard A. Schwartz for Defendants, CrossComplainants, and Appellants.
2

Quinn Emanuel Urquhart & Sullivan, Christopher 

Tayback, Valerie Roddy, Aaron Perahia for Plaintiff, CrossDefendant, and Respondent.

__________________________

Conrad Riggs and Cloudbreak Entertainment, Inc. 

(Cloudbreak) appeal from a judgment entered in favor of plaintiff 

and cross-defendant Layne Leslie Britton, contending the trial 

court erred in denying their motion for summary adjudication of 

Britton’s breach of contract cause of action and granting the 

motion for summary adjudication filed by Britton. Britton filed 

suit against Riggs and Cloudbreak for various claims arising out 

of an alleged breach of a consulting agreement the parties 

entered into with respect to services to be provided by Britton on 

the television reality series Survivor and other matters. Riggs 

and Cloudbreak cross-complained against Britton, who was an 

attorney, asserting claims for professional negligence, breach of 

fiduciary duty, restitution, and alleging Britton provided legal 

services to Riggs and Cloudbreak pursuant to a written 

contingency fee agreement that did not satisfy the requirements 

imposed on such agreements by Business and Professions Code 

section 6147.

1

The trial court granted Britton’s summary adjudication 

motion and denied the summary adjudication motion filed by

Riggs and Cloudbreak, finding Britton served as a business 

consultant, not an attorney, and therefore the consulting 

1 All further undesignated statutory references are to the 

Business and Professions Code.
3

agreement was not voidable. Following the court’s ruling, a jury 

found for Britton on his claims for breach of contract and money 

had and received, awarding him $489,850 in damages.

On appeal, Riggs and Cloudbreak contend Britton provided 

legal services under the consulting agreement and the agreement 

therefore was voidable by Riggs and Cloudbreak. We agree and 

reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Britton’s Services for Riggs and Cloudbreak2

1. The players and deal to produce the reality series 

Survivor

Britton graduated from law school in 1981. Britton was 

admitted to the California bar, but he pursued a career as a 

television executive. Britton worked as vice president of business 

affairs at NBC Entertainment and later at CBS, before he 

became the executive vice president of business operations for 

UPN. Although Britton never worked for a law firm or as a solo 

practitioner and never made a court appearance or served as 

counsel of record, he was at all relevant times an active 

membership in the California bar. 

Riggs graduated from law school in 1989, after which he 

worked as a transactional attorney at two law firms and later for 

a sports agency. In 1998 Riggs and his production company,

Cloudbreak, began working with Mark Burnett to produce reality 

television shows, including Survivor. Riggs and Burnett pitched 

2 This discussion is based on undisputed facts taken from 

evidence submitted in connection with the summary adjudication

motions.
4

Survivor to several networks, including to UPN where Britton 

was then executive vice president of business operations. Britton 

suggested Burnett and UPN equally share the responsibility for 

securing advertisers for the show and split the advertising 

profits. UPN ultimately declined to produce the show, but in 

1999 Burnett finalized a deal with CBS on Survivor (Survivor 

agreement), which included a similar shared advertising 

provision. 

2. Britton advises Riggs regarding disputes with CBS

On March 25, 1999 Riggs contacted Britton by email 

seeking Britton’s advice on which attorney to hire for the 

“CBS/Survivor deal.”3 Survivor premiered on CBS in 2000. In 

the summer of 2000 Riggs contacted Britton regarding CBS’s 

demand that Burnett reduce his share of the profit on advertising 

revenues from 50 percent to 25 percent. CBS indicated it would 

not sell any additional advertising units for Survivor if Burnett 

did not agree to the reduction. Britton advised Riggs to instruct 

Burnett not to agree to any reduction. CBS ultimately sold

additional advertising, and Burnett maintained his 50 percent 

share of profit on advertising revenues.

Shortly thereafter, discussions began between Burnett and 

CBS over the renewal of Survivor for additional seasons. The 

Survivor agreement required Burnett and CBS to negotiate a 

settlement as to compensation for future cycles of Survivor and to 

arbitrate their dispute if no agreement could be reached. During 

the settlement discussions, the law firm Irell & Manella 

3 The record does not reflect whether Britton provided advice 

in response to the email.
5

represented Burnett, while also providing legal advice to Riggs 

and Cloudbreak. Britton also provided advice to Riggs and 

Burnett regarding the dispute over future cycles. According to 

Riggs, Britton “offered to help [Riggs] with the renegotiation 

instead of [Riggs] hiring . . . another lawyer.” Riggs told Britton 

he wanted Britton to be his lawyer and added, “[I]f you help me, 

I’m not going to hire another lawyer, so you’re going to do this 

work, whatever it is.” 

On behalf of Burnett and Riggs, Britton engaged in 

negotiations with Les Moonves, who at the time was president 

and chief executive officer of CBS television, regarding a renewal 

contract for Survivor. When no settlement was reached, Burnett 

and CBS scheduled an arbitration for January 2001. During the 

arbitration process the law firm O’Donnell & Shaeffer 

represented Burnett and Riggs. However, Riggs continued to 

receive advice from Britton regarding the dispute.

On July 5, 2000 Britton wrote an email to Riggs, titled 

“What To Do To Maximize the Success of Su[r]vivor and Eco 

Challenge,” advising Riggs to “[b]e patient at CBS with 

Survivor. . . . You have arbitration as your protection.” (Italics 

added; capitalization omitted.) Britton noted the arbitrator could 

award a larger payment to Burnett than the 50-50 advertising 

revenue split, suggesting that during the arbitration “[y]ou will 

argue that you should be paid more. [¶] . . . To support this you 

can point to many examples of successful shows where the cost to 

the networks is f[a]r more onerous than the arrangement you 

have at present. . . . [¶] . . . There is nothing that says a license 

fee cannot include ratings performance payments.” In the same 

email, Britton proposed various television networks where 

Burnett and Riggs might pitch several new show ideas. Britton 
6

advised, “If there are any shows here you like, you should try to 

sell them now for the 50/50 advertiser deals. Do this for two 

reasons. One, you can confirm rumors that this is the deal at 

CBS without violating your confidentiality clause [in the Survivor 

agreement]. Two, you will have a basis of comparison for the 

arbitrator.” 

On July 8, 2000 Riggs sent Britton an email asking him to 

review a draft email to CBS employee Marc Graboff in response 

to Graboff’s email objecting to the proposed licensing fee for 

future cycles of Survivor that took into account past advertising 

revenues. Britton responded to Riggs, “Please add that they have 

in fact offered payments directly related to advertising revenue 

by offering to pay bonuses based on ratings and ratings are of 

course a large part of the total advertising revenue. [¶] Please 

co[n]sider whether you want to start this now or wait until next 

week. Don’t show them your thought process this early. [¶] 

Consider going right to arbitration with no notice of your coming 

arguments.” Four days later, Britton provided Riggs with notes 

on a revised draft email to Graboff. Regarding a $1 million cost 

deduction by CBS in the first cycle accounting for Survivor, 

Britton proposed adding, “You failed to list even one example of 

what entity had ever[] been charged these costs and more 

importantly c[o]uld not show where in the contract CBS c[a]n 

deduct thes[e] cost[s] even if they w[e]re ordina[r]y and 

custom[a]r[y].” (Capitalization omitted.) 

On July 27, 2000 Britton sent Riggs an email with the 

subject line “Survivor letter for counter.” (Italics added.) Britton 

suggested adding a cover letter “[e]xplain[ing] that you think it 

reflects the intent of the parties at the time the deal was made to 

reward [Burnett] for performance since he took the risk of selling 
7

the time” and “[e]xplain[ing] that the rights [to Survivor] should 

belong to [Burnett] because he will make it his business to build 

a business that maximizes these rights. [Burnett] will use his 

personal selling skills to sell and build the Survivor brand along 

with other brands like ECO-Challenge.” (Italics added.) 

On September 26, 2000 Britton sent Riggs an email with a 

subject line reading, “Ready For Arbitration.” Britton listed 

several points for Riggs to consider regarding the arbitration with 

CBS, including that the dispute “can be settled any time before 

the judgment is issued” and “[d]on’t put a number on the table 

that is not reflective of the value of Survivor.” (Italics added.)

3. Britton helps Riggs and Burnett pitch and sell 

additional television shows

Around September 2000 Britton also helped Burnett and 

Riggs develop and attempt to sell additional show ideas. Britton 

arranged a meeting with Garth Ancier at NBC to pitch a reality 

television show called Destination Mir. That month NBC agreed 

to develop the show. Britton helped negotiate with Ancier a 50-

50 advertising revenue split between NBC and Burnett’s 

affiliated company, DJB, Inc. In early October 2000 Britton 

suggested Riggs and Burnett work on a professional wrestling 

television show and set up a pitch by contacting Ted Turner. 

4. Britton advises Riggs regarding disputes with 

Castaway

On October 5, 2000 Britton sent Riggs an email regarding a 

dispute between DJB and Castaway Television Productions, 

Limited (Castaway) with respect to Castaway’s right to a share of 

Burnett’s payments from CBS for Survivor. Britton’s email 
8

contained the subject line “Privileged and Confidential,” and it

attached a document titled “Privileged and Confidential.doc.” 

The attached document began, “Privileged and Confidential [¶] 

Notes on possible ways to respond to the Castaway letter . . . .” 

In the document, Britton described “[b]ad news about the letter,” 

including that the “aggressive[ness]” of the letter indicated 

“[Castaway is] very confident or very worried that they have a 

good claim. If they felt that they were in the middle on the 

strength of their argument then they would I think be more 

conciliatory in their tone and tactics.” Britton noted the letter 

contained “the claim that Castaway owns the rights for 

[Destination Mir]. This could kill the deal at NBC . . . . Mark 

will have to disclose these claims. Mark will not get [insurance] 

coverage for them. . . . We are very vulnerable on this point.” 

Britton also described “go[o]d news in the letter” in that “[i]t 

clearly admitted that there is an agreement that as drafted does 

not entitle Castaway to any part of [Burnett’s] money from CBS. 

[¶] Calling it a mutual mistake is a complete loser of an 

argument . . . .” Britton concluded, “The goal is to get this 

response out with a tone that communicates a disregard for their 

claims if we can find some good facts . . . .” (Capitalization 

omitted.) 

On October 6, 2000 Britton sent Riggs an email with 

suggested edits to a “PRIVILEGED AND CONFIDENTIAL” 

letter drafted by an attorney for Irell & Manella on behalf of DJB 

addressed to Castaway’s attorney in which DJB challenged 

Castaway’s position that a “key provision” of the format rights 

agreement between Castaway and DJB—limiting Castaway’s 

compensation for Survivor—was “a result of mutual mistake.” 

Britton added the following underscored language to one portion 
9

of the letter, which argued the agreement’s “definition of ‘Format 

Participation’ . . . is clear on its face and . . . accurately and 

correctly memorializes and reflects the many discussions, 

agreement of the parties and therefore [the] intention of 

Mr[.] Burnett, Mr. Riggs and DJB.” Britton also inserted, “Your 

reliance on prior agreements between the parties is also 

misplaced. As you will note, not only does the agreement have a 

merger clause, it was Mr. Parsons himself who pointed out in his 

September 8, 1999 email to Mr. Riggs that the Format License 

was intended to ‘replace’ the parties[’] prior agreements.” Britton 

added, “If you seek reformation, we are confident an arbitrator 

will find that the nature of Castaway’s format license agreements 

mandates a reformed agreement consistent with Castaway’s 

other agreements. That is, a license agreement where Castaway 

does not participate in network revenues.” Britton added the 

following underscored language to another portion of the letter 

regarding Castaway’s claims to Destination Mir: “[I]f these 

claims ever have the effect of impacting Mr. Burnett’s ability 

successfully to produce Destination Mir, we will hold Castaway, 

its partners and all related persons, entities and representatives

strictly accountable for all consequences . . . .” (Italics added.) 

Britton further added language that “the complicated nature of 

CBS’s matching rights in the international territories . . . might 

prevent Castaway from extending current format licenses.” On 

the final page of the document, Britton included a comment to 

Riggs and Burnett, “Do not have your lawyers invite settlement 

discussions. It then goes to the firms that are paid by the hour 

and will just joust with each other. []Get rid of the settlement 

language . . . .” (Capitalization omitted.) 
10

5. DJB’s agreement with Cloudbreak and Britton and 

Cloudbreak’s consulting agreement for Britton’s 

services

On September 20, 2000 Riggs sent Burnett a letter 

“confirm[ing] [their] agreement regarding the compensation DJB, 

Inc. will pay Cloudbreak . . . for business/production/distribution 

consulting services” related to Survivor and other shows. 

According to Riggs’s letter, Burnett agreed that DJB would pay 

Cloudbreak “an amount equal to 10% of all sums received by DJB 

from these projects.” The letter stated, “Unless and until we sign 

a more formal agreement, this letter shall replace our prior oral 

agreement and constitute the entire agreement between us.”

Until late October 2000, Britton and Riggs had no 

agreement regarding Britton’s compensation for his services to

Riggs and Cloudbreak. Up to this point, Britton had not been 

paid for his services. In October 2000 Britton provided to Riggs a 

draft agreement regarding Britton’s services. Under the draft 

agreement, Cloudbreak was to pay Britton 35 to 40 percent of 

Cloudbreak’s earnings for Britton’s services to Burnett and DJB. 

Riggs hired attorney Samuel Spira and law firm Gorrey & Meyer 

to review the draft agreement. According to Riggs, he attempted 

to negotiate Britton’s compensation to “the standard 

entertainment lawyer percentage of 5 or 10 percent,” but Britton 

refused. 

On October 23, 2000 Cloudbreak and Britton entered into a 

“consulting agreement” (capitalization omitted), under which 

Britton was to provide “business advisory and consulting 

services” to Riggs and Cloudbreak “on projects Cloudbreak 

undertakes for Mark Burnett and DJB Inc.” through 

December 31, 2001 (the Agreement). The Agreement provided, 
11

“Notwithstanding anything to the contrary in this Agreement, 

the parties acknowledge that, within Cloudbreak, Britton shall 

render his services only to Conrad Riggs and shall render 

services to third parties as directed by Cloudbreak.” The 

Agreement provided as to compensation, “Commencing July 1, 

2000, Cloudbreak shall pay Britton 40% . . . of the gross 

compensation . . . Cloudbreak receives from DJB . . . or other 

third party sources in connection with services Cloudbreak 

provides to DJB relating to” other DJB projects. The agreement 

specifically provided Britton would be compensated for several 

television projects, including Survivor and Destination Mir, but 

specified as to Survivor that Britton would receive 35 percent of 

the gross compensation received by Cloudbreak from DJB, rather 

than 40 percent, subject to certain exclusions. The Agreement 

made “[a]ll sums due to Britton in connection with this 

Agreement . . . due and payable upon Cloudbreak’s receipt of its 

compensation from DJB or any other sources.” 

Paragraph 4 of the Agreement provided, “Britton and 

Cloudbreak represent and warrant and it is a material 

inducement to this Agreement that (a) each is an independent 

contractor and not an agent, partner, joint venture partner, 

common law employee or representative of the other . . . .” 

(Underscoring omitted.) 

Paragraph 9 provided, “This Agreement constitutes the 

entire understanding of the parties hereto and supersedes all 

prior agreements, understandings, discussions, statements and 

negotiations of the parties relating to the subject matter herein 

and may only be varied by a written instrument signed by both 

parties.” 
12

Paragraph 10 provided, “Cloudbreak and Britton shall 

maintain the financial terms of this Agreement . . . in strict 

confidence and shall not disclose the existence of the terms of this 

Agreement, except to the extent required by law or to assert or 

defend any claims, or, if required by a financial institution for 

personal financial investment or personal banking purposes or to 

fulfill the obligations under this [A]greement. Notwithstanding 

the foregoing, Cloudbreak will disclose the existence and nonfinancial terms of this Agreement to Mark Burnett no later than 

December 10, 2000. Britton’s services to O’Donnell & Shaeffer 

and/or to Irell & Manella and retention as an expert consultant 

and/or expert witness in connection with certain disputes 

involving DJB are permitted disclosures hereunder and shall not 

violate the terms of this Agreement. Such disclosures by 

Cloudbreak and services to O’Donnell and/or Irell & Manella, 

however, will not in any way change, alter or waive Cloudbreak’s 

or Britton’s confidentiality obligations as described in this 

paragraph. Notwithstanding the foregoing, Cloudbreak 

acknowledges people are and will continue to become aware 

through Britton’s performance of his services hereunder that 

Britton is rendering personal consulting services to Cloudbreak 

in connections with the projects described herein.” 

The Agreement did not state that Britton’s fee was

negotiable between Britton and Cloudbreak (and not set by law),

and it did not state to what extent Cloudbreak could be required 

to pay Britton compensation for related matters not covered by 

the Agreement. 
13

6. Britton continues to advise Riggs regarding the CBS 

arbitration and the dispute with Castaway

After execution of the Agreement, Britton continued to 

advise Riggs with respect to DJB’s disputes with CBS and 

Castaway. On October 31, 2000 Britton sent Riggs an email with 

notes on a draft letter from attorney Pierce O’Donnell of 

O’Donnell & Shaeffer on behalf of Burnett to CBS’s counsel

expressing disappointment with CBS’s failure to agree to the 

terms set forth in its broadcast license fee agreement with 

Burnett for production of Survivor. Britton inserted a note to 

Riggs, “You have to decide what you want to do about suing for 

re[s]cission. I am opposed to seeking this relief. There is no way 

[Burnett] will support more than a million dollars in legal fees 

and years of waiting while the litigation proceeds. I think 

Viacom will not be bullied by the threat and will let the efforts to 

go to court instead of arbitration become a new battle ground. I 

am interested in hearing what [O’Donnell] has to say on this 

matter. I think [the attorney’s] advice is not good here.” 

(Capitalization omitted.) As to the letter’s assertion CBS had 

failed timely to compensate Burnett, Britton commented, “My 

suggestion here is don’t beat [CBS] up to[o] hard for nonpayment, 

but, rather again press the attack on the issue of the lack of an 

accounting, this they are weak on, make reference to the written 

requests by date[] and the oral promises that have been made 

about w[h]en they would [be] sent.” (Capitalization omitted.) 

Britton continued, “[M]ake the point that you want all the money 

in accordance with the side letter and you are . . . will[ing] to 

indemnify them.” Britton recommended the letter include 

“actu[a]l language from the agreement. . . . You do not want their 

lawyers saying you are just posturing. Make them explain away 
14

to [Moonves] the language that says the show can be sold 

else[where] if CBS passes on the decision. Claim this is what was 

discussed in the negotiations at the time since you would not 

agree to the offers they w[ere] making and were willing to let a 

third party decide what is fair.” (Capitalization omitted.) 

On November 2, 2000 Britton sent Riggs an email 

attaching Britton’s comments on a (significantly) revised draft of 

O’Donnell’s letter to CBS’s counsel. Britton inserted the 

following underscored language: “CBS has . . . refused to 

recognize in the negotiations the fair market value of the show. 

In direct contr[a]diction of the good[ ]faith intention of the fully 

negotiated terms under which the show[’]s worth is to be 

determined . . . .” (Capitalization omitted.) Britton also inserted 

that CBS’s conduct was “a violation of the terms of the agreement

r[e]garding sharing in the advertising” and “CBS continues to 

insist upon deducting over [$]1,000,000 in normal network costs 

that are not permitted under the Survivor Agreement.” 

(Capitalization omitted, italics added.) As to the letter’s threat 

that if CBS failed to pay an arbitrator’s award for fair market 

value, Burnett would shop Survivor to other networks, O’Donnell 

commented that he and Shaeffer did not think the threat should 

be included in the letter; Britton wrote in response, “I think you 

should make the claim.” (Capitalization omitted.) Britton also 

suggested the letter quote the arbitration provisions of the 

Survivor agreement. 

On November 3, 2000 Britton provided additional notes on 

yet another draft of the letter. Riggs sent his and Britton’s 

comments to O’Donnell and the legal team, with a copy to 

Britton. Britton’s comments and revisions included: “stay away 

from their strength i.e. a license fee is not the same as revenue 
15

share”; “[CBS has] failed to negotiate in good faith in accordance 

with the intent of the parties as reflected in the [Survivor] 

Agreement so that the financial rewards would be fairly shared”; 

“remind CBS that any claims that Castaway has made for a 

portion of the revenue from the network [are] mistaken and that 

Mark has in the side letter promised to indemnify [CBS] against 

any incorrect payments”; and “CBS may choose not to abide by 

the arbitrator opinion and thereby forgo its broadcast rights to 

the program.” 

In November 2000 Riggs asked Britton to meet with the 

owners of Castaway regarding Burnett’s dispute with Castaway. 

On November 7 Riggs sent to Britton a draft email for Britton to 

send to Castaway’s owners. The email stated, “I am contacting 

you on behalf of Mark Burnett and Conrad Riggs . . . . [¶] I 

would like to speak to you directly regarding finding ways for . . . 

you to work with [Burnett] and [Riggs]. I am not their attorney 

and I am not part of their law firm, Irell & Manella. I have 

known Conrad for many years and Mark for over two years. I 

from time to time answer questions for them as a ‘friend of the 

court.’ [¶] . . . [I]t would be much more fruitful for both parties 

to find a business resolution instead of a legal one . . . .” The 

same day, Britton sent the email as drafted by Riggs to 

Castaway’s owners, copying Riggs. 

On November 8, 2000 Britton sent Riggs an email 

“outlin[ing] the things that I believe will motivate CBS to settle 

and the things that I believe CBS is counting on to win if there is 

arbitration.” Britton highlighted the “need to show the arbitrator 

the value of the show in the open market as provided in the 

[Survivor] agreement.” Britton opined CBS would want to avoid 

“gossip” about the dispute, and “[t]here is I think no 
16

confidentiality in the [Survivor] agreement regarding anything 

other than the economic terms so [CBS’s] behavior could be 

discussed very publicly. If this could also produce a credible 

discussion of punitive damages because CBS is consistently bad[,] 

great. I doubt any compensatory damages could be proven 

because I think it would be difficult to prove economic harm.” 

Britton then noted the language in the Survivor agreement—

providing the arbitrator with “authority to set the Broadcast 

License Fee up to an amount no greater than the amount then 

being paid by CBS for any similar programming”—favored CBS 

in the arbitration. Britton listed the positions he expected CBS 

to take in the arbitration and the best responses to each. 

On November 10, 2000 Britton sent Riggs another email 

regarding the upcoming arbitration with CBS. Britton attached 

to the email a document titled “outline of CBS and Burnett 

arrangement for Survivor.” (Capitalization omitted, italics 

added.) The document began, “Listed here are reasons for 

[Moonves] to decide the terms of the deal rather than an 

arbitrator.” In the document, Britton analyzed the terms of the 

arbitration provision of the Survivor agreement. Britton noted 

the outcome of the arbitration was uncertain, stating, “Both sides 

have arguments that make some sense. A similar show is really 

best described as a very successful show.” Britton wrote, “The 

agreement invites the arbitrator to look at amounts other 

networks pay. The ‘up to’ limiting amount being paid by CBS to 

be effective must have similar programming and since CBS does 

not have any similar programming the limit will not apply. . . . 

So the provision makes sense as a mechanism to provide for 

payment when CBS does not have similar programming. . . . 

Remember the phrase in the agreement is ‘fair market’ value that 
17

includes the criteria of ‘reputation of the Producer in the 

television industry.’ . . . [T]his is again a reason for the arbitrator 

to not be limited by the phrase [‘]similar show[,’] since there is no

similar show when all the factors [in the Survivor agreement] are 

considered.” Britton noted, “[T]he agreement has the very broad 

arbitration provision that looks at so many elements and gives 

the arbitrator so much information. . . . Even if the arbitrator 

mistakenly rules that a direct portion of the revenue is not due as 

a bonus[,] the amount to be paid for the total weekly fee could 

easily be in the multiple of millions and cost CBS more in the 

future if the show continues . . . . Remember the arbitration is 

after each cycle.” Britton continued, “I have fought to hold the 

letter your lawyers asked to sen[d] because of its claim that CBS 

engages in fraud . . . . There are many examples, without 

mentioning fraud, of bad things CBS has done . . . . There has 

been no reasonable accounting. There has been no payment even 

though the letter provides that Mark indemnifies CBS against 

any claims Castaway might make against it . . . . There are 

copyright claims for the VH-1 Survivor show. Let’s keep all the 

stuff private.” (Italics added.) Later that day, Britton sent Riggs 

a revised version of the document, to which Britton added under 

a heading titled “Certainty,” “There are claims to be raised that 

have as a remedy re[sci]ssion. The amount at stake is so high 

why risk it.” (Capitalization omitted.)

On November 21, 2000 Riggs sent Moonves at CBS a

spreadsheet prepared by Britton showing projected revenues for

Survivor based on different economic assumptions. 

On November 25, 2000 Britton sent Riggs an email 

expressing his concerns about a letter from attorney John 

Shaeffer of O’Donnell & Shaeffer to CBS’s counsel demanding 
18

CBS release money it was withholding that was owed to Burnett. 

Britton wrote, “I want to talk to [Shaeffer] . . . . I want to know 

what the strategy is they are following at this point. I want a 

mock argument to be made Monday. I see no understanding on 

their part regarding the strengths and weaknesses of the case. I 

do not see that they have any understanding of the arguments I 

put forth in the desperate hours of those first drafts they 

prepared that said nothing. I am concerned that they are not 

tough enough for the fight ahead. It will be won on the contract if 

at all[,] not from any posturing or intimidation.” Two days later

Britton sent Riggs an email, copied to O’Donnell and Sheffer,

commenting on another draft letter from O’Donnell to CBS’s 

counsel again objecting to CBS withholding payment to Burnett. 

Britton commented, “My advice here is to disregard this whole 

line of attack.” (Capitalization omitted.) 

The same day Riggs forwarded to Britton an email from an 

attorney at O’Donnell & Shaeffer containing a list of criteria for 

expert witnesses for the arbitration. Britton responded, “I will 

call them.” Britton then contacted at least two possible experts 

for the arbitration, including retired television executive Larry 

Hoffner, who later drafted a declaration for the arbitration.

On November 30, 2000 Britton sent Riggs an email, copied 

to O’Donnell and Shaeffer, with a document titled “notes on 

attack.” In the document, Britton advised Riggs, “[T]hey must be 

arguing that the fair market value for the show is less than they 

paid for the first cycle. I think this is a goofy argument for them 

to be making and I am not sure they have thought it through. [¶] 

Our point is that we don’t really care if the deal is directly for 

advertising. . . . We need to abandon what the structure of the 

deal is and let CBS rail on form over substance.” 
19

Also on November 30, Shaeffer sent an email to Britton, 

copied to O’Donnell, stating, “I completely agree with your 

analysis. I have never wanted to argue that an advertiser 

supplied is the same as a license fee. Rather I wanted to argue 

what a fair market value is. [¶] A key point of [your] analysis is 

that a comparable license fee is not simply what is paid on any 

give[n] show, but rather what a network would pay for a show 

hitting the market that had under its belt a season like Survivor

did last year . . . .” (Italics added.) 

On December 11, 2000 Britton sent Shaeffer an email with 

a copy to Riggs, providing comments on a draft joint proposed 

order for the arbitration with CBS. Britton identified the scope of 

the confidentiality clause as a problem for information gathering 

and the engagement of experts. Britton wrote, “I need to talk to 

people without . . . the restriction of confidentiality.” Around

December 26, 2000 Britton reviewed a draft declaration of expert 

witness Larry Hoffner prepared to support Burnett’s claims in 

the arbitration. 

In early January 2001 CBS and Burnett settled their

dispute over future cycles of Survivor. Britton continued to 

advise Riggs on other disputes with CBS, while also preparing

pitch materials for other shows with Burnett and Riggs. 

On March 23, 2001 Britton provided notes on a draft letter 

from O’Donnell & Shaeffer to an arbitrator regarding a dispute 

between Burnett and CBS over The Survivor Phenomenon, an

hour-long program aired by CBS about the first season of 

Survivor. Britton wrote, “Is not the issue here not who produced 

[The Survivor Phenomenon] but that CBS aired it? . . . They 

have an obligation to charge for the rights to maximize [their 

revenue] . . . . The affiliate [who produced The Survivor 
20

Phenomenon] would not be free to use the rights and material if it 

was for some other network.” (Capitalization omitted.) 

Regarding the letter’s assertion the parties did not contemplate a 

mid-season “derivative” show, Britton commented, “I will bet they 

knew they wanted to rest the show so they could [get it into] 

sweeps and did not [tell] you. This could be import[a]nt later if 

you challenge the settlement as fraudul[e]nt.” (Capitalization 

omitted.) 

7. Cloudbreak’s payments to Britton

Britton made repeated requests for payment for the second 

cycle of Survivor. Beginning on January 31, 2003 and continuing 

until December 18, 2006, Cloudbreak made periodic payments to 

Britton’s company, LLB Services, Inc., totaling $1,877,000. On

the invoice accompanying each of the 11 checks issued during

this period, Cloudbreak specified as the description, “Legal fees.” 

(Capitalization omitted.) 

B. The Complaint and Cross-Complaint

Britton filed this action on November 27, 2012 against 

Riggs and Cloudbreak. Britton’s operative second amended 

complaint alleged causes of action for breach of contract, 

conversion, open book account, money had and received, quantum 

meruit, fraud, and receipt of stolen property. Britton alleged he 

provided business advisory and consulting services to Cloudbreak 

pursuant to the Agreement. Riggs made “interim payments to 

Britton for cycles of Survivor—which continued through 2006. . . . 

Riggs represented (falsely and with the intent to deceive Britton) 

that these payments were 35% of the monies he received for each 

cycle of Survivor.” Britton alleged Riggs filed suit against 
21

Burnett, and the two later settled. Riggs misled Britton to 

believe he was no longer receiving payments from Burnett

although Cloudbreak was continuing to receive Survivor

payments directly from CBS. Britton alleged Cloudbreak failed 

to perform its obligations under the Agreement, including failing 

to account for moneys received from Burnett, withholding money 

it owed Britton, failing to consult with Britton about Riggs’s 

dispute with Burnett, and settling that dispute without obtaining 

Britton’s consent. Britton further alleged the Agreement entitled 

him to payments for several shows Burnett produced after 

Survivor. Britton sought damages exceeding $16 million. 

In January 2013 Riggs and Cloudbreak filed a crosscomplaint against Britton. Their operative first amended crosscomplaint alleged causes of action for professional negligence, 

breach of fiduciary duty, declaratory relief, and unjust 

enrichment/restitution. Riggs and Cloudbreak alleged they 

retained Britton to provide legal and business assistance “in 

various matters,” including negotiations and the arbitration with 

CBS regarding Survivor. Britton caused Riggs and Cloudbreak 

to enter into the Agreement, which “was unfair, unreasonable, 

unconscionable, and illegal,” and voidable as a contingency fee 

agreement for legal services that did not comply with 

section 6147. Riggs and Cloudbreak further alleged Britton 

failed to advise them that their agreement with Burnett was 

similarly voidable by Burnett for failure to comply with section 

6147, which “forced [Riggs and Cloudbreak] to settle their lawsuit 

with Burnett for less than its worth.” 
22

C. The Parties’ Motions for Summary Adjudication

On July 17, 2015 Britton moved for summary adjudication 

of the following issue central to Riggs and Cloudbreak’s 

counterclaims and affirmative defenses: “No fiduciary duty or 

attorney-client relationship existed between Britton, on the one 

hand, and Cloudbreak Entertainment, Inc. and Conrad Riggs, on 

the other, because Britton was not their attorney.” Britton 

argued he did not owe Riggs and Cloudbreak a fiduciary duty 

because the Agreement did not create a duty and he did not 

practice law on their behalf. According to Britton’s supporting 

declaration, he “never . . . practiced law at any job in any 

capacity.” Britton averred further, “In the course of rendering my 

services to Burnett, his affiliated companies, Riggs, and 

Cloudbreak, I did not consult legal texts, treatises, statutes or 

case law.” 

On the same date Riggs and Cloudbreak moved for 

summary adjudication of Britton’s breach of contract cause of 

action based on voidability of the Agreement as a contingency fee 

agreement that failed to meet the requirements of section 6147.4

Riggs stated in his supporting declaration, “At all times during 

which Britton advised Cloudbreak, I (and Cloudbreak) believed 

that an attorney-client relationship existed between Britton and 

4 Riggs and Cloudbreak also moved for summary 

adjudication of Britton’s causes of action for breach of contract, 

open book account, money had and received, and quantum meruit 

on the basis the claims were barred by the applicable statutes of 

limitation. They also argued Britton’s causes of action for open 

book account and money had and received failed “to constitute a 

cause of action.” The trial court denied Riggs and Cloudbreak’s 

motion on these issues. 
23

Cloudbreak.” Riggs averred, “[F]rom July 2000 through 

2002 . . . , Cloudbreak, acting through me, continually sought, 

received, and relied upon Britton’s legal advice and legal 

acumen.” 

In opposition to Britton’s motion, Riggs and Cloudbreak 

filed excerpts from the deposition of Riggs, in which he addressed

the July 7, 2000 email he drafted and Britton sent to Castaway’s 

owners, in which Britton stated he was not Burnett’s and Riggs’s

attorney. Riggs testified, “[Burnett] asked me to make sure 

[Britton] said that he doesn’t represent both of us. He didn’t 

want any impression that [Britton] represented Mark Burnett, so 

he said, ‘Tell them that he doesn’t represent both of us.’” Riggs 

and Cloudbreak also relied on the same evidence they submitted 

in support of their motion for summary adjudication. 

In his declaration in opposition to Riggs and Cloudbreak’s 

motion, Britton stated, “To the extent I made comments on 

letters or other documents prepared by Burnett’s attorneys, those 

comments were based on the law and legal concepts that 

Burnett’s attorneys had explained to me.” Britton also relied on 

the same evidence he submitted in support of his motion for 

summary adjudication.

D. The Trial Court’s Ruling on the Motions

On October 1, 2015 the trial court granted Britton’s motion 

for summary adjudication and denied Riggs and Cloudbreak’s 

motion for summary adjudication of Britton’s breach of contract 

claim. In its written ruling, the court found there was no triable 

issue of fact whether there was an attorney-client relationship 

between the parties because Britton did not act as attorney for 

Riggs or Cloudbreak. The court relied on the language of the 
24

Agreement, which provided that Britton would render “business 

advisory and consulting services,” and did not include “[t]he 

phrases ‘legal services,’ ‘legal advice’ and ‘legal representation.’”

Further, the Agreement stated that Britton and Cloudbreak were 

independent contractors and “not agents, partners, joint venture 

partner[s], common law employees or representatives of the 

other,” thereby “disclaim[ing] a fiduciary relationship.” The court 

reasoned the disclaimer was effective because the contract did 

not “‘require legal services’ or even purport to offer them.”

The trial court noted Riggs was himself an attorney and 

Cloudbreak was represented by attorneys with respect to 

negotiation of the Agreement. The court also relied on the 

November 7, 2000 email drafted by Riggs and sent by Britton to 

Castaway’s owners, in which Britton stated he was not an 

attorney for Riggs or Burnett. The court found Britton “was not a 

practicing lawyer” despite being an active member of the 

California Bar, because Britton had never worked for a law firm

and never “made a court appearance [or] served as counsel of 

record” in any court. The court found Britton’s work for Riggs 

and Cloudbreak “did not require [Britton] to do any legal 

research or cite cases,” but rather, it consisted of “participating in 

negotiations, providing economic models (spreadsheets) and 

pitching new show ideas on Burnett projects.” The court 

reasoned Britton’s negotiations were based on his “knowledge of 

the economics underlying the television business and his strong 

relationships in the television business. Anyone who 

understands the television business could have engaged in the 

negotiations that Britton did, as proven by the fact that” Britton 

negotiated with non-lawyers on behalf of Riggs and Cloudbreak. 

The court concluded, “Negotiating is not the practice of law.” The 
25

court denied Riggs and Cloudbreak’s motion for summary 

adjudication of Britton’s breach of contract cause of action on the 

same grounds. 

E. The Jury Trial, Verdict, and Posttrial Proceedings

Prior to the start of the jury trial, the trial court reserved 

for a bench trial Britton’s claim that Riggs and Cloudbreak were 

equitably estopped from asserting the statute of limitations as a 

defense and Britton’s claim that Riggs was the alter ego of 

Cloudbreak.

In February 2016 a jury trial proceeded on Britton’s causes 

of action for breach of contract against Cloudbreak and money 

had and received against Cloudbreak and Riggs.5 The jury found 

for Britton on both claims. The jury found Britton’s breach of 

contract claim was barred by the statute of limitations to the 

extent it alleged harm that occurred before June 14, 2008; the 

jury awarded Britton $0 for past economic loss suffered before

that date and $489,850 for past economic loss suffered thereafter. 

On Britton’s claim for money had and received, the jury found the 

statute of limitations barred the alleged harm to Britton that 

occurred before June 14, 2009, and it awarded Britton $0 in 

damages. On March 14, 2016 the trial court entered a judgment 

on the jury’s verdict.

5 On March 19, 2015 the trial court sustained a demurrer 

filed by Riggs and Cloudbreak to Britton’s causes of action for 

conversion and receipt of stolen property without leave to amend. 

The court also granted a motion to strike the cause of action for 

fraud on the ground that Britton had added the cause of action to 

his second amended complaint without being granted leave to 

add a new claim.
26

Britton filed a motion for a new trial, arguing the damages 

awarded by the jury were inadequate as to both causes of action 

and the jury’s verdict was contrary to law because its finding that 

part of Britton’s claimed harm occurred before June 14, 2008 was 

inconsistent with its finding that Britton suffered no damages 

prior to that date. The trial court granted a new trial on Britton’s 

claim for money had and received on the ground that the jury’s 

damages award was inadequate and inconsistent with its finding 

of liability on that claim. The court also concluded the jury’s 

verdict was ambiguous as to whether its liability finding applied 

to Cloudbreak only or to both Cloudbreak and Riggs. The court 

denied the motion as to Britton’s claim for damages for breach of 

contract. In ruling on the motion, the court also found that Riggs 

and Cloudbreak were not equitably estopped from asserting a 

statute of limitations defense to Britton’s claims.

On May 3, 2016, the trial court issued an order taking the 

parties’ respective motions for attorneys’ fees off calendar 

pending a retrial on the claim for money had and received. The 

court also ordered that the bench trial on Britton’s alter ego claim 

be reserved pending resolution of Riggs and Cloudbreak’s 

intended appeal.

F. The Parties’ Premature Appeal and Subsequent Proceedings

In December 2018 we reversed the trial court’s order on 

Britton’s motion for a new trial, concluding it was premature and 

therefore void. We dismissed the parties’ cross-appeals from the

judgment entered on the jury’s verdict, concluding the judgment 

was not appealable because it was not a final judgment in light of 

the trial court’s failure to hold a bench trial on the reserved 

issues. (Britton v. Riggs, supra, B272078.)
27

On remand, the trial court found against Britton on the 

reserved issues of equitable estoppel and alter ego. Britton again 

moved for a new trial. Riggs and Cloudbreak moved for judgment 

notwithstanding the verdict, arguing Britton’s claim for money 

had and received was duplicative of his breach of contract claim, 

and therefore could not result in another recovery. Each side 

filed a motion for attorneys’ fees. 

The trial court denied Britton’s motion for a new trial and 

his request for prejudgment interest. The court granted 

Cloudbreak’s motion for judgment notwithstanding the verdict, 

but denied the motion as to Riggs. The court denied each side’s 

motion for attorneys’ fees, finding there was no prevailing party 

for purposes of attorneys’ fees recovery. 

The trial court entered judgment on October 17, 2019 and 

an amended judgment on January 10, 2020. Britton timely 

appealed. Riggs and Cloudbreak timely cross-appealed.6

DISCUSSION

A. Standard of Review

Summary adjudication is appropriate only if there are no 

triable issues of material fact and the moving party is entitled to 

6 In accordance with the parties’ proposals for a briefing 

sequence, we ordered the parties to brief Riggs and Cloudbreak’s 

cross-appeal (this appeal) before briefing commences on Britton’s 

appeal. Britton’s appeal is taken from the October 17, 2019 

judgment, the November 20, 2019 order denying Britton’s motion 

for attorneys’ fees, the December 10, 2019 order granting in part 

Riggs and Cloudbreak’s motion for judgment notwithstanding the 

verdict, and the December 11, 2019 order denying Britton’s 

motion for a new trial and request for prejudgment interest. 
28

judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); 

Regents of University of California v. Superior Court (2018) 

4 Cal.5th 607, 618; Delgadillo v. Television Center, Inc. (2018) 

20 Cal.App.5th 1078, 1085.) “‘“‘“We review the trial court’s 

decision de novo, considering all the evidence set forth in the 

moving and opposing papers except that to which objections were 

made and sustained.”’ [Citation.] We liberally construe the 

evidence in support of the party opposing summary judgment and 

resolve doubts concerning the evidence in favor of that party.”’” 

(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; see 

accord, Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600, 

607).)

The party moving for summary adjudication has the initial 

burden of presenting evidence that a cause of action lacks merit 

because the plaintiff cannot establish an element of the cause of 

action or there is a complete defense. (Code Civ. Proc., § 437c, 

subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 

826, 853; Valdez v. Seidner-Miller, Inc., supra, 33 Cal.App.5th at 

p. 607.) If the moving party satisfies this initial burden, the 

burden shifts to the opposing party to present evidence 

demonstrating there is a triable issue of material fact. (Code Civ. 

Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Valdez, at p. 607.) 

We liberally construe the opposing party’s evidence and resolve 

any doubts about the evidence in favor of that party. (Regents of 

University of California v. Superior Court, supra, 4 Cal.5th at 

p. 618; Valdez, at p. 608.)

Where the facts are undisputed, “[t]he existence of an 

attorney-client relationship involves a question of law that we 

review de novo.” (Sprengel v. Zbylut (2019) 40 Cal.App.5th 1028, 

1042; accord, Wood v. Superior Court (2020) 46 Cal.App.5th 562, 
29

580.) “[A]ny conflict in the evidence of an attorney-client 

relationship is a question of fact for the trial court to decide, 

which we uphold if supported by substantial evidence.” 

(Sprengel, at p. 1042.)

B. The Trial Court Erred in Determining the Undisputed Facts 

Do Not Show Britton Provided Legal Services to Cloudbreak

“An attorney-client relationship is not created by the 

unilateral declaration of one party to the relationship.” (Koo v. 

Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729; 

accord, Fox v. Pollack (1986) 181 Cal.App.3d 954, 959 [individuals 

cannot unilaterally create an attorney-client relationship without 

the agreement of the attorney].) “Rather, the relationship can 

only be created by contract, express or implied.” (Koo, at p. 729; 

accord, Responsible Citizens v. Superior Court (1993) 

16 Cal.App.4th 1717, 1732; Fox, at p. 959.) “‘When a party 

seeking legal advice consults an attorney at law and secures that 

advice, the relation of attorney and client is established prima 

facie.’” (People ex rel. Dept. of Corporations v. SpeeDee Oil 

Change Systems, Inc. (1999) 20 Cal.4th 1135, 1148; accord, Wood, 

supra, 46 Cal.App.5th at p. 581 [“Ordinarily, when a party seeks 

legal advice from a lawyer, and the lawyer provides such advice, 

an attorney-client relationship is formed.”]; Benninghoff v. 

Superior Court (2006) 136 Cal.App.4th 61, 72 (Benninghoff).)

Riggs and Cloudbreak contend the trial court erred in 

determining they did not have an attorney-client relationship 

with Britton because the evidence shows Riggs sought legal 

advice from Britton (on behalf of Cloudbreak), and Britton 

provided it. Britton counters that his services consisted only of 

negotiating, providing economic models, and pitching new show 
30

ideas, none of which constituted the practice of law. Britton also 

argues the Agreement demonstrates he never agreed to act as 

Cloudbreak’s attorney. Riggs and Cloudbreak have the better 

argument.

It is true “when the attorney acts merely as a negotiator for 

the client or is providing business advice,” the relationship 

between the parties “is not one of attorney-client.” (Costco 

Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 735; 

accord, Watt Industries, Inc. v. Superior Court (1981) 

115 Cal.App.3d 802, 805 [attorney-client privilege did not attach 

“where . . . the attorney act[ed] merely as a business agent for the 

client in conveying the client’s position to a contracting party”].) 

And it is undisputed that some portion of Britton’s services 

consisted of conducting negotiations regarding Survivor and 

using his business connections to assist the sale of television 

shows in development by Riggs and Burnett. But a substantial 

portion of Britton’s services involved providing advice on 

arbitration strategy, crafting legal arguments based on 

interpretation of the Survivor agreement, reviewing and 

critiquing letters drafted by Burnett’s counsel, and drafting a 

memorandum assessing the validity of Castaway’s claims, all of 

which are archetypal legal advice a lawyer would provide a client. 

Britton does not dispute he provided these services pursuant to 

the Agreement. 

That Britton never appeared in court or practiced at a law 

firm does not alter the character of the services he provided. The 

practice of law includes not only “‘“the doing and performing 

services in a court of justice,”’” but also the provision of “legal 

advice . . . whether or not . . . rendered in the course of litigation.” 

(Birbrower, Montalbano, Condon & Frank v. Superior 
31

Court (1998) 17 Cal.4th 119, 128; accord, People v. Merchants 

Protective Corp. (1922) 189 Cal. 531, 535 [the practice of law

“‘includes legal advice and counsel, and the preparation of legal 

instruments and contracts by which legal rights are secured 

although such matter may or may not be []pending in a court’”].) 

“[T]he resolution of legal questions for another by advice and 

action is practicing law ‘if difficult or doubtful legal questions are 

involved which, to safeguard the public, reasonably demand the 

application of a trained legal mind.’” (Baron v. City of Los 

Angeles (1970) 2 Cal.3d 535, 543; see Altizer v. Highsmith (2020) 

52 Cal.App.5th 331, 341 [assisting in renewal of judgment by 

filling in factual information about original judgment and 

renewal on two-page Judicial Council form was “‘clerical’” work 

that did not require resolution of “‘“‘difficult or doubtful legal 

questions’”’” that might “‘“‘reasonably demand the application of 

a trained legal mind,’”’” and thus was not the unauthorized 

practice of law].)

It is undisputed that at the inception of the professional 

relationship memorialized in the Agreement, Riggs told Britton, 

“[I]f you help me, I’m not going to hire another lawyer, so you’re 

going to do this work, whatever it is.” Following Riggs’s 

statement, Britton began to provide a mix of business and legal 

advice to Cloudbreak through Riggs. The professional services 

provided by Britton as to the CBS dispute required him to 

interpret the Survivor agreement, and based on that agreement, 

to advise Riggs and Cloudbreak as to arbitration strategy, to 

gather evidence in support of the arbitration’s goals (including 

interviewing two potential expert witnesses, one of whom 

provided a declaration supporting Burnett’s position), and to 

evaluate the relative strength of Burnett’s and CBS’s legal 
32

arguments. Britton evaluated the scope of the arbitrator’s 

authority, as well as CBS’s rights in relation to the arbitrator’s 

decision. He also advised as to the scope of the confidentiality 

clauses in existing and proposed agreements. Britton noted the 

possibility of seeking punitive damages, at the same time opining 

that compensatory damages would be unavailable “because . . . it 

would be difficult to prove economic harm.” 

As to Castaway, Britton drafted a legal memorandum 

evaluating the merits of Castaway’s claimed rights to Survivor. 

He labeled his October 5, 2000 cover email and attached 

memorandum to Riggs as privileged and confidential.7 In his 

memorandum, Britton opined that Castaway’s affirmative 

defense of mutual mistake with respect to the format rights 

agreement with DJB was “a complete loser of an argument.” He 

then suggested edits to a draft letter to Castaway’s attorney 

marked privileged and confidential that DJB’s attorney at Irell & 

Manella had drafted, addressing Castaway’s claim of mutual 

mistake. Britton noted the format rights agreement had a 

merger clause, and he suggested adding to the letter an 

argument why the arbitrator would not order reformation of the 

agreement. With respect to Castaway’s claims to Destination 

Mir, Britton suggested making clear that DJB intended to hold 

not only Castaway accountable for any losses, but “its partners 

and all related persons, entities and representatives” as well. He 

counseled against initiating settlement discussions with 

Castaway, and emphasized, “The goal is to get this response out 

7 In deposition testimony, Britton did not deny designating 

the document as privileged and confidential but stated, “I don’t 

know what privileged and confidential means.” 
33

with a tone that communicates a disregard for their claims if we 

can find some good facts . . . .”

Britton repeatedly employed principles of contract 

interpretation to fashion legal arguments Burnett and 

Cloudbreak could assert. For example, in November 2000 Britton 

sent a memorandum to Riggs regarding the upcoming CBS 

arbitration that analyzed the arbitration provision of the 

Survivor agreement. With respect to the dispute over payments 

for renewal of Survivor for future cycles, Britton focused on the 

term “similar show” (referencing the parties’ agreement that 

limited the arbitrator’s award of licensing fees to what CBS paid 

for similar programming) to argue the term would not limit the 

arbitrator’s award because “there is no similar show when all the 

factors are considered,” in light of Survivor’s success and 

Burnett’s reputation. Britton later provided legal arguments and 

critiqued those asserted by the O’Donnell & Shaeffer attorneys on 

multiple drafts of a letter to CBS, in which Britton commented to 

Riggs on Burnett seeking rescission of the agreement, “I think 

[the attorney’s] advice is not good here.” Britton suggested the 

letter quote from the Survivor agreement, highlight what was 

discussed at negotiations, argue that CBS had violated the 

agreement as to “sharing in the advertising,” “stay away from 

their strength,” and remind CBS of Burnett’s side letter 

promising to indemnify CBS against any incorrect payments. 

Britton points to the statements in his declaration that his 

“comments on letters or other documents prepared by Burnett’s 

attorneys . . . were based on the law and legal concepts that 

Burnett’s attorneys had explained to me.” But this statement 

runs contrary to the undisputed evidence that Britton disagreed 

with the legal judgments made by those attorneys. In addition to 
34

the examples above, Britton asserted Burnett’s attorneys 

misunderstood the legal effect of Burnett’s agreement to 

indemnify CBS against Castaway’s claims, directing them to 

“look at the language again in the side letter.” And Britton 

repeatedly insisted the attorney correspondence he reviewed 

quote and rely more directly on contract language, rather than 

“posturing or intimidation.” He counseled against making direct 

accusations of fraud against CBS, while flagging evidence that 

could be used to challenge the settlement reached with CBS 

regarding future cycles of Survivor as fraudulent. 

Aetna Casualty & Surety Co. v. Superior Court (1984) 

153 Cal.App.3d 467 is instructive. There, an insurance company 

asserted attorney-client privilege over its former attorney’s files 

regarding the attorney’s investigation of an insurance claim. The 

company had hired the attorney to conduct the investigation and 

make a coverage determination under the policy. In concluding 

the documents were protected by the attorney-client privilege, 

the court reasoned, “The attorney was given a legal document 

(the insurance policy) and was asked to interpret the policy and 

to investigate the events that resulted in damage to determine 

whether Aetna was legally bound to provide coverage for such 

damage.” (Id. at p. 477.) The court observed, “This is a classic 

example of a client seeking legal advice from an attorney.” (Ibid.) 

Here, Britton interpreted the agreements with CBS and 

Castaway, opined about the respective rights of the parties to the 

agreements, and crafted arguments in support of Cloudbreak, 

Riggs, and Burnett.

Britton relies on paragraph 4 of the Agreement, which 

disclaims any agency or representative relationship between 

Britton and Cloudbreak, to argue the Agreement could not create 
35

an attorney-client relationship, which is premised on agency 

principles. But as the Court of Appeal observed in Benninghoff, 

supra, 136 Cal.App.4th 61, a written disclaimer does not prevent 

the existence of an attorney-client relationship if the attorney is 

in fact performing legal services or offering legal advice. (Id. at 

p. 73 & fn. 10; see State Bar Standing Com. on Prof. 

Responsibility and Conduct, Formal Opn. No. 1999-154 [“no

disclaimer [of an attorney-client relationship] will be effective if 

[attorney] is in fact performing legal services or offering legal 

advice”].) Britton attempts to distinguish Benninghoff as 

involving a contract that “require[d] legal services” (Benninghoff

at p. 73), whereas the Agreement does not contain such a 

requirement. This is a distinction without a difference—as in 

Benninghoff, the disclaimer in the Agreement does not negate the 

fact Britton provided legal advice under the Agreement to Riggs 

and Cloudbreak, in addition to the business counsel and 

negotiation services he performed.8

8 People v. Gionis (1995) 9 Cal.4th 1196, relied on by Britton, 

is inapposite. There, the defendant contacted a friend who was 

an attorney regarding a divorce proceeding initiated by the 

defendant’s wife. (Id. at p. 1203.) The attorney advised the 

defendant he could not represent him because of a conflict, but 

they subsequently met to discuss the divorce. (Ibid.) In later 

litigation, the defendant claimed his statement to the attorney at 

the meeting that his wife “‘had no idea how easy it would be for 

him to pay somebody to really take care of her’” was a protected 

attorney-client communication. (Ibid.) The Supreme Court held 

the statement was not protected, reasoning the attorney’s 

“unequivocal refusal to represent defendant, made before any of 

the incriminating disclosures were made, detracts significantly 

from defendant’s claim of privilege.” (Id. at p. 1212.) As 
36

Britton also relies on the November 7, 2000 email Riggs 

prepared for Britton to send to the owner of Castaway stating, “I 

would like to speak to you directly regarding finding ways for . . . 

you to work with [Burnett] and [Riggs]. I am not their attorney 

and I am not part of their law firm, Irell & Manella. . . . I from 

time to time answer questions for them as a ‘friend of the court.’” 

In his deposition, Riggs testified as to the email, “[Burnett] asked 

me to make sure [Britton] said that he doesn’t represent both of 

us. He didn’t want any impression that [Britton] represented 

Mark Burnett, so he said, ‘Tell them that he doesn’t represent 

both of us.’” Burnett was correct that Britton did not represent 

him—the Agreement was between Britton and Cloudbreak, with 

Riggs acting on behalf of Cloudbreak. Moreover, in providing his 

services to Cloudbreak, Britton performed multiple roles, some 

legal, and some not. It is clear from the email to Castaway’s 

owners that Britton was reaching out “to find a business 

resolution instead of a legal one.” The fact Britton was acting in 

a business capacity in talking to Castaway’s owners does not 

mean Britton did not provide legal advice to Cloudbreak and 

Riggs in other contexts, as shown by Britton’s many emails, 

memoranda, and comments on attorney correspondence showing 

just this. 

Britton relies on Zelkin v. Caruso Discount Corp. (1960) 

186 Cal.App.2d 802 to support his argument that his 

participation in negotiations under the Agreement was not legal 

discussed, the disclaimer in the Agreement was not effective to 

prevent an attorney-client relationship from forming, and thus 

there is no “unequivocal” evidence that an attorney-client 

relationship was not formed. 
37

work because he did not “do any legal research or cite cases.” 

Zelkin is distinguishable. There, the Court of Appeal affirmed 

the trial court’s determination an accountant did not practice law 

in representing his client before the Internal Revenue Service, 

reasoning, “In this case plaintiff testified that he read no law nor 

did he cite any to the Internal Revenue agent, thus he could be 

said to have been practicing law only if on the face of the problem 

which he was negotiating no discussion of that problem would be 

possible without reference to legal issues and no persuasive 

argument could be made which did not include a discussion of 

legal principles.” (Id. at p. 806.) Although legal research may 

constitute evidence of the practice of law, Britton cites to no 

authority, nor is there, for the proposition such evidence is 

required to show an attorney-client relationship. Rather, as 

discussed, where the resolution of “‘difficult or doubtful legal 

questions’” reasonably require “‘the application of a trained legal 

mind,’” the attorney is providing legal services. (Baron v. City of 

Los Angeles, supra, 2 Cal.3d at p. 543.) Britton repeatedly 

provided this type of analysis of difficult legal questions. 

Because Britton provided legal services under the 

Agreement as a matter of law, the trial court erred in granting 

Britton’s motion for summary adjudication. Britton carried his 

initial burden based on the Agreement and Britton’s declaration 

to show there was no attorney-client relationship between him 

and Cloudbreak and Riggs. But Cloudbreak and Riggs met their 

burden to show Britton provided legal advice and other services 

to Cloudbreak and Riggs based on the undisputed evidence 

submitted in opposition to the motion. Based on the same 

evidence, Riggs and Cloudbreak met their burden in their motion 

for summary adjudication of Britton’s breach of contract claim to 
38

show an attorney-client relationship (and thus the Agreement 

was voidable under section 6147), and Britton did not carry his 

burden to present evidence demonstrating there is a triable issue 

of material fact. Therefore, the court also erred in denying Riggs 

and Cloudbreak’s motion for summary adjudication based on the 

absence of an attorney-client relationship.

C. The Agreement Provides for a Contingency Fee

Britton alternatively contends that even if an attorneyclient relationship existed between him and Cloudbreak (or 

Riggs), the Agreement does not fall within the requirements of 

section 6147, and thus is not voidable, because it is not a 

contingency fee agreement. Section 6147, subdivision (a), 

provides that where “[a]n attorney . . . contracts to represent a 

client on a contingency fee basis,” the written contract shall 

include, among other things, a “statement as to what extent, if 

any, the client could be required to pay any compensation to the 

attorney for related matters that arise out of their relationship 

not covered by their contingency fee contract” and, in cases other 

than medical malpractice, “a statement that the fee is not set by 

law but is negotiable between attorney and client.” Under section 

6147, subdivision (b), “[f]ailure to comply with any provision of 

this section renders the agreement voidable at the option of the 

plaintiff, and the attorney shall thereupon be entitled to collect a 

reasonable fee.”

Britton argues the Agreement is not a contingency fee 

agreement within the meaning of section 6147 because it does not 

condition Britton’s right to payment on Britton achieving a 

particular result for Cloudbreak. “[S]ection 6147 encompasses 

contingent fee arrangements regarding litigation and 
39

transactional matters.” (Arnall v. Superior Court (2010) 

190 Cal.App.4th 360, 368.) “As section 6147 does not define 

‘contingent fee,” we look first to the term’s ‘plain meaning’ for 

guidance on these questions. [Citation.] The term ‘contingency 

fee contract’ is ordinarily understood to encompass any 

arrangement that ties the attorney’s fee to successful 

performance, including those which incorporate a noncontingent 

fee based on a fixed rate of payment.” (Arnall, at pp. 369-370; see 

Estate of Stevenson (2006) 141 Cal.App.4th 1074, 1084 [“Fees 

under a contingency fee agreement are not a sure thing.”].)

Contrary to Britton’s assertion, a contingency fee 

agreement need not condition the attorney’s fee on the 

achievement of a particular result. Here, the Agreement is a 

contingency fee agreement because it “ties [Britton’s] fee to 

successful performance” in that Britton’s services were designed 

to increase DJB’s earnings on Survivor and other projects 

performed in collaboration with Cloudbreak, thereby increasing 

the amount of money flowing to Cloudbreak and ultimately to 

Britton. Britton argues the Agreement entitled him to 

compensation “regardless of the outcome of his services,” but 

Britton would have received nothing if DJB’s deals with CBS fell 

through. Britton’s assistance enabled Cloudbreak and DJB to 

secure the production of future cycles of Survivor at CBS. This 

was not a foregone conclusion because the arbitration clause of 

the Survivor agreement (according to Britton’s interpretation) 

allowed CBS to walk away from the arbitration decision if it was 

not satisfied with the result. Britton also advised Cloudbreak 

over disputed funds withheld by CBS as costs during Survivor’s 

first cycle. If Britton’s services proved effective, the distribution 

of those funds to DJB would redound to Cloudbreak (which was 
40

entitled to 10 percent of DJB’s compensation on the project), 

thereby increasing Britton’s fee. If his services were not effective 

and no payment was made by CBS to DJB, Britton would receive 

nothing. 

Likewise, Britton provided services with respect to DJB’s 

dispute with Castaway to ensure Castaway’s claims did not upset 

the deal between DJB and NBC over Destination Mir. If the deal 

failed, Britton would not receive a fee. And Castaway’s claims to 

a greater share of the Survivor earnings would impact DJB, and 

thus Cloudbreak and Britton. Britton’s fee was therefore 

contingent on his successful performance of these services. 

Because Britton provided legal services to Cloudbreak under the 

Agreement, which provided for a contingent fee, the Agreement 

was voidable at Cloudbreak’s option under section 6147, 

subdivision (b), for failure to comply with subdivision (a).9

9 Because we reverse the judgment for Britton, we do not 

reach Riggs and Cloudbreak’s contention the trial court erred in 

denying their postjudgment motion for attorneys’ fees.
41

DISPOSITION

We reverse the judgment. The trial court is ordered to 

vacate its order granting Britton’s motion for summary 

adjudication and to enter an order denying the motion. The trial

court is further ordered to vacate its order denying Riggs and 

Cloudbreak’s motion for summary adjudication of Britton’s 

breach of contract cause of action and to enter an order granting 

the motion as to that cause of action. The matter is remanded for 

further proceedings consistent with this opinion. Riggs and 

Cloudbreak are entitled to recover their costs on appeal.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.