Miller v. Clark CA2/6

Filed 11/16/15 Miller v. Clark CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

IRWIN R. MILLER, 2d Civil No. B258311 (Super. Ct. No. 56-2011-00407071- Plaintiff, Cross-defendant and CU-BC-VTA) Respondent. (Ventura County)

v.

EDWARD L. CLARK, JR.,

Defendant, Cross-complainant and Appellant,

In this dispute over expert witness fees, Edward L. Clark appeals a judgment after a court trial on a claim for declaratory relief and a jury trial on legal claims. Clark contends the trial court abused its discretion when it denied his motions in limine, denied his motion for nonsuit after opening statement, denied his motion for directed verdict on the attorney's misrepresentation claims, did not conduct an evidentiary hearing about a witness's absence, responded to a juror's question about calculating damages, denied his motion for new trial or additur, and did not award him costs pursuant to Code of Civil Procedure section 998.1 We affirm.

1 All statutory references are to the Code of Civil Procedure unless otherwise stated.

BACKGROUND Irwin R. Miller and his law firm retained Clark as an electrical engineering expert witness in a personal injury case against Southern California Edison (SCE). Miller and Clark did not reduce their agreement to writing. Clark billed Miller for more than $95,000 in professional fees. Miller paid the first $17,500 billed, but objected to subsequent bills. Miller and Clark were unable to resolve their disagreement. Miller filed this action for declaratory relief. He alleged that Clark billed for services he did not perform. Miller asked the court to determine if the parties have a valid contract and "what monies, if any, are owed [to Clark]." Clark responded with a cross-complaint against Miller and Miller's colleague, Susana Goytia-Miller.2 After two amendments, Clark's cross-complaint asserted causes of action for breach of oral contract, money had and received, account stated, open book account, services rendered, negligent misrepresentation, intentional misrepresentation, and fraud in the inducement. Miller amended his complaint to add claims for negligent and intentional misrepresentation. Pursuant to section 998, Miller offered Clark $25,000. Clark rejected the offer. The trial court awarded Clark $30,222.50 for unpaid professional fees on the declaratory relief action and neither party prevailed on other claims. Trial was bifurcated. The parties agreed that a jury would hear the legal claims while the trial court heard the claim for declaratory relief. The court declared the existence of a valid contract, and asked the jury for an advisory opinion on what money is owed to Clark. The jury responded that Miller owes Clark between $10,000 and $50,000. On the legal claims, it found that neither Clark nor Miller proved misrepresentation, and it rejected Clark's claim that he lost $130,000 in profits because this litigation interfered with his ability to work. In determining the amount owed to Clark, the court considered