Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 04CC06374, W. Michael Hayes, Judge.
Gladych & Associates, John A. Gladych and Randall S. Guritzky for Defendants and Appellants.
Geiger, Coon & Keen and Timothy J. Kooy for Plaintiffs and Respondents Jon Nunes, Kelly Nunes, Vincent Bond, Jeanne Bond, Ernesto Esplana and Marlyn Esplana.
Chambers, Noronha & Kubota and Gary L. Chambers for Plaintiffs and Respondents Brian Wilson, Michelle Wilson, Rick Kurland, Mary Kurland, Kevin O’Neal, Veronica O’Neal and Carole Barton.
OPINION
FYBEL, J.
Introduction
Homeowner’s Construction Defect Group, LLC (Defect Group), made an offer to Jon Nunes, Kelly Nunes, Vincent Bond, Jeanne Bond, Ernesto Esplana, Marlyn Esplana, Brian Wilson, Michelle Wilson, Rick Kurland, Mary Kurland, Kevin O’Neal, Veronica O’Neal, and Carole Barton (Plaintiffs) that seemed too good to be true: Defect Group would pursue Plaintiffs’ construction defects claims, pay all costs associated with the litigation, and split all proceeds from the litigation with Plaintiffs. As with most things that seem too good to be true, however, it was. A motion for nonsuit was granted against Plaintiffs as a result of their counsel’s failure to timely designate expert witnesses; a settlement offer by the homebuilder was not accepted; a cost judgment was entered against Plaintiffs, jointly and severally; and the homebuilder recorded judgment liens against Plaintiffs’ homes.
Plaintiffs sued the attorneys representing them in the construction defect case for legal malpractice. Following a bench trial, judgment was entered in favor of Plaintiffs. One of Plaintiffs’ attorneys in the underlying case, John A. Gladych, appeals. As explained in detail, post, we reject all of Gladych’s arguments and affirm the judgment.
The evidence supports the trial court’s determination that Gladych committed legal malpractice and violated his duties to his clients—Plaintiffs—by failing to communicate with them regarding the status of the case or their risk of loss. The trial court found: “[E]ven through this trial, Gladych missed the fundamental truth about who he represented. The individual homeowners were the plaintiffs of record and faced a risk of loss in this case. He should have kept them informed of the progress of the case and solicited their input as to the settlement negotiations as they progressed. He should have told them when they lost the appeal and the risk of loss was now a reality.” For the reasons we explain, post, the applicable statute of limitations was tolled until Plaintiffs learned of the liens against their homes. Plaintiffs’ complaints were therefore timely filed. Gladych’s other arguments fail as well.
Statement of Facts and Procedural History
Plaintiffs are the owners of homes in Murrieta, California, constructed by Pardee Construction Company (Pardee). Defect Group was formed by Don Westerfeld, Debbie Westerfeld, and Albert Quintrall. In 1998, Plaintiffs assigned their construction defect claims against Pardee to Defect Group. The written agreements signed by Plaintiffs (the assignment agreements) purportedly gave Defect Group the full authority to control the litigation, provided that Defect Group would be responsible for all costs and expenses of the litigation, and set a formula by which Defect Group and Plaintiffs would divide any litigation proceeds.
On November 30, 1998, Quintrall, on behalf of Defect Group, filed a construction defect lawsuit in Riverside County Superior Court entitled Ayala v. Pardee Construction Company, case No. RIC320912(the Ayala case). Plaintiffs were named individually in the complaint; despite the provision of the assignment agreements purportedly assigning the rights to assert the claims to Defect Group, it was not named as a plaintiff. The Ayala case was later consolidated into a larger construction defect case entitled Rochelle v. Pardee Construction Company, case No. RIC297648 (the Rochelle case). Quintrall failed to serve a designation of expert witnesses in the Ayala case.
On August 10, 2000, Gladych associated into the Ayala case as Quintrall’s cocounsel. Gladych agreed with Quintrall that his scope of work was to address the problem of Quintrall’s failure to serve an expert witness designation, to designate experts, to take expert depositions, to prepare for trial, and to try the case.
Gladych successfully opposed a motion in limine to preclude expert witnesses from testifying, due to Quintrall’s failure to timely serve an expert witness designation. The trial court gave Plaintiffs in the Ayala case until August 17, 2000 to file an expert designation, and until August 23 to deposit their expert reports and other documents in a document depository. Gladych instructed Quintrall to comply with the court order. Quintrall served the expert designation late, on August 21, and never deposited an expert report or other documents in the depository. The trial court issued an evidentiary sanction precluding Plaintiffs from calling expert witnesses at trial.
Gladych participated in settlement negotiations in the Ayala case. Pardee initially made a global offer to settle the entire Rochelle case, including the Ayala case. The parties could not agree on an allocation of the settlement proceeds, and Pardee settled separately with the Rochelle case plaintiffs. Pardee’s counsel advised Gladych that the difference between the original global settlement amount and the amount of the Rochelle case settlement – $170,000 – was available to the Ayala case Plaintiffs. Gladych rejected the settlement offer. Neither Quintrall nor Gladych conveyed the settlement offer to Plaintiffs.
The statement of decision and the respondents’ brief state the final amount offered to Plaintiffs in the Ayala case by Pardee was a total of $190,000. At trial, witnesses testified Plaintiffs were offered a total of $170,000. It is undisputed by the parties that Pardee offered one global amount to settle both the Ayala case and the Rochelle case. When the Rochelle case settled, the difference between the amount of the global settlement offer and the amount of the Rochelle case settlement was available to the Ayala case Plaintiffs. Given our holding, it is irrelevant whether $170,000 or $190,000 was available to the Ayala case Plaintiffs, because Gladych failed to communicate any settlement offer to Plaintiffs.
On September 6, 2000, the trial court granted a motion for nonsuit in favor of Pardee and against Plaintiffs.
Quintrall informed Plaintiffs by letter dated September 21, 2000 that the motion for nonsuit had been granted, and that a settlement offer had been made by Pardee, but rejected. A cost judgment in the amount of $51,754.98 was entered against Plaintiffs on January 19, 2001. Plaintiffs were not informed that the cost judgment had been entered.
An appeal was taken from the nonsuit order and the order awarding costs on March 26, 2001; Gladych’s law firm filed the notice of appeal. Gladych represented Plaintiffs on appeal, and Plaintiffs were so advised in writing. The Court of Appeal, Fourth Appellate District, Division Two, affirmed the orders on September 30, 2002. Additional costs were awarded to Pardee against Plaintiffs following the appeal. Plaintiffs were not informed of the outcome of the appeal.
On July 18, 2003, Pardee recorded an abstract of judgment against all of Plaintiffs’ homes. Plaintiffs paid to have the judgment liens satisfied.
Plaintiffs filed individual complaints for legal malpractice in Orange and Riverside Counties. A consolidated master complaint was filed in the Orange County Superior Court on July 28, 2005, alleging causes of action against Gladych and Quintrall for legal malpractice and breach of fiduciary duty, among other causes of action against Defect Group, Don Westerfeld, and Debbie Westerfeld. After a bench trial, on August 23, 2007, the trial court issued a 19 page statement of decision, finding in favor of Plaintiffs. Gladych filed objections, but the trial court did not modify its statement of decision. Judgment was entered December 19, 2007. Gladych timely appealed after a motion for a new trial and a motion to vacate the judgment were denied.
Discussion
I.
Statute of Limitations
Gladych argues the entire case against him was barred by the relevant statute of limitations: “An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [¶] (1) The plaintiff has not sustained actual injury; [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” (Code Civ. Proc., § 340.6, subd. (a)(1) & (2).)
The trial court found the statute of limitations did not begin to run until July 18, 2003, when Plaintiffs were notified by the county of the judgment liens placed on their homes.
“Actual injury occurs when the client suffers any loss or injury legally cognizable as damages in a legal malpractice action based on the asserted errors or omissions. [Citations.]... [Code of Civil Procedure] section 340.6, subdivision (a)(1), will not toll the limitations period once the client can plead damages that could establish a cause of action for legal malpractice.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 743.)
“[W]e hold that under [Code of Civil Procedure] section 340.6, the statute of limitations for legal malpractice actions commences on entry of adverse judgment or final order of dismissal. Plaintiff herein, therefore, sustained actual injury when the trial court dismissed her underlying action and she was compelled to incur legal costs and expenditures in pursuing an appeal. Her case also lost considerable settlement value and potential interest on any monetary award that would have been awarded absent the malpractice, once the action was dismissed.” (Laird v. Blacker (1992) 2 Cal.4th 606, 615.)
The statute of limitations on Plaintiffs’ malpractice claims against Gladych began to run on September 21, 2000, when Quintrall informed Plaintiffs by letter that the motion for nonsuit had been granted. But, as we explain, the limitations period was tolled while Gladych continued to represent Plaintiffs and failed to inform Plaintiffs he had stopped representing them, and until Plaintiffs discovered their actual injury by learning of the liens placed on their homes. (Code Civ. Proc., § 340.6, subd. (a)(2).)
The test for tolling has been explained as follows: “Absent a statutory standard to determine when an attorney’s representation of a client regarding a specific subject matter ends, and consistent with the purposes of the continuing representation rule, we conclude that for purposes of Code of Civil Procedure section 340.6, subdivision (a)(2), in the event of an attorney’s unilateral withdrawal or abandonment of the client, the representation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services. [Citations.] That may occur upon the attorney’s express notification to the client that the attorney will perform no further services, or, if the attorney remains silent, may be inferred from the circumstances. Absent actual notice to the client that the attorney will perform no further legal services or circumstances that reasonably should cause the client to so conclude, a client should be entitled to rely on an attorney to perform the agreed services and should not be required to interrupt the attorney client relationship by filing a malpractice complaint. After a client has no reasonable expectation that the attorney will provide further legal services, however, the client is no longer hindered by a potential disruption of the attorney client relationship and no longer relies on the attorney’s continuing representation, so the tolling should end. To this extent and for these reasons, we conclude that continuous representation should be viewed objectively from the client’s perspective....” (Gonzalez v. Kalu (2006) 140 Cal.App.4th 21, 30 31, fns. omitted.)
Gladych terminated his relationship with Quintrall by means of a letter dated October 24, 2002. Quintrall testified at trial that Gladych did no work on the Ayala case after October 24, 2002. It is undisputed, however, that Gladych’s October 24 letter was not copied to Plaintiffs, Gladych did not ask Quintrall to forward his letter or the information in it to Plaintiffs, Gladych never communicated directly with Plaintiffs regarding his decision to stop representing them, and Plaintiffs were never aware Gladych had terminated his representation of them.
Nevertheless, Gladych contends that because Quintrall was still representing Plaintiffs, Quintrall was Plaintiffs’ agent and his knowledge that Gladych was no longer working for Plaintiffs must be imputed to them. As explained by the trial court and in detail, post, as a matter of law Gladych and Quintrall each independently owed a duty of care to Plaintiffs, arising out of the attorney client relationship and substantial evidence supported the trial court’s conclusions. The trial court made specific findings that Gladych and Quintrall both had a duty to communicate with Plaintiffs regarding settlement negotiations, and to provide Plaintiffs with information regarding the status of the case and the realization of the risk of Plaintiffs’ financial loss. Encompassed within those duties was Gladych’s obligation to inform Plaintiffs he was terminating his representation of them. In addition, Gladych could not avoid his own separate obligation to advise Plaintiffs of the settlement offer by Pardee or his own separate obligation to advise Plaintiffs of the postappeal status of the case by assuming Quintrall would provide that information to them. For the same reason, Gladych could not avoid his own separate obligation by relying on Quintrall to inform Plaintiffs that Gladych had abandoned his representation of them.
Therefore, the statute of limitations remained tolled until Plaintiffs discovered their actual injury on or about July 18, 2003, when Pardee recorded the abstracts of judgment against Plaintiffs’ homes. Plaintiffs’ claims for legal malpractice against Gladych were filed within one year after that date, and were therefore timely.
II.
Were the Assignment Agreements Void?
Gladych argues the trial court erred in determining the assignment agreements were void. And, Gladych argues, if the assignment agreements were valid, then Plaintiffs had no right to any settlement proceeds, and Gladych did not owe any duties to them because his sole client was Defect Group.
The trial court’s legal conclusion that the assignment agreements were void was based in large part on the California Supreme Court’s holding in Estate of Butler (1947) 29 Cal.2d 644, 647: “The invalidity of respondent’s claim stems from the nature of the agreements which he solicited from appellants, which agreements are typical of those used in his general practice of soliciting beneficiaries of decedents’ estates. Operating from his principal office in the city of Chicago, respondent admittedly conducts his business in the following manner: by contacting and soliciting the heirs, securing their authorization to appear for them, and employing counsel to represent them under powers of attorney or assignments. Thus, as a nonlawyer acting for prospective beneficiaries under agreements providing for his paying ‘any and all expenses incident to the doing of the things he is authorized to do by said power of attorney, including attorneys’ fees and court costs,’ respondent assumes complete control of litigation instituted on behalf of the beneficiaries through attorneys hired by him and becomes a ‘middleman’ intervening for profit in the conduct of legal proceedings. Such procedure amounts to ‘commercial exploitation’ of the legal profession and is contrary to public policy. [Citations.]”
Gladych contends Estate of Butler is distinguishable because that case involved an assignment of one-third of the heir’s recovery, while the present case, he says, involved an assignment of the entire claim for damages. Gladych’s argument is belied by the language of the assignment agreements between Plaintiffs and Defect Group.
In relevant part, the assignments agreements provided: “ASSIGNORS herein assign to Homeowners Construction Defect any and all causes of action for property damage from the construction, if any, of the House and/or arising out of the facts, events, and construction of the House. [¶] ASSIGNORS hereby assign to Homeowners Construction Defect the rights to: (1) receive for the benefit and account of Homeowners Construction Defect any and all sums of monies due or that may come due to ASSIGNORS whether by judgment, settlement or otherwise; (2) to settle any and all causes of action for property damages due to ASSIGNORS or any portion thereof; and (3) to demand and sue for any and all causes of action for property damage arising out of said construction of the House. It is expressly agreed that Homeowners Construction Defect has the sole and irrevocable right and discretion to receive and/or settle any and all amounts that may be due to ASSIGNORS pursuant to and arising out of said causes of action for property damage in the construction of and resulting construction defects in the House. ASSIGNORS hereby relinquish, give over, and assign to Homeowners Construction Defect control over any and all strategies, actions, settlements and litigation tactics pursuant to and arising out of the pursu[it] of recovering the compensation from the defective construction of the House. [¶]... [¶] The consideration for this Assignment Agreement is that Homeowners Construction Defect will investigate, analyze, verify insurance coverage, and, at its discretion, manage the pursuit, negotiation and settlement/litigation of the causes of action for property damage and pay all monies required for that pursuit.... [¶] Any and all monies received whether by award, judgment, settlement, or any other way whatsoever from the date of this Agreement forward on this matter will be paid to and distributed by Homeowners Construction Defect as set forth below. [¶]... [¶]... First, all costs incurred by Homeowners Construction Defect including, but not necessarily limited to, any and all attorney fees and costs, any and all court costs, deposition costs, expert witness fees, defect testing preparation costs, etc. shall be paid to Homeowners Construction Defect; and, [¶]... Second, all remaining monies to be distributed sixty percent (60%) to ASSIGNORS and forty percent (40%) to Homeowners Construction Defect. If this matter results in an appeal of a judgment at trial, then all remaining monies to be distributed fifty percent (50%) to ASSIGNORS and fifty percent (50%) to Homeowners Construction Defect.” (Original italics.)
We find no appreciable difference between the factual situation in Estate of Butler, and the facts of this case.
Gladych also argues that even if the assignment agreements are void, they should be enforced vis à vis him. Gladych should have known the assignment agreements were void, and Plaintiffs, not Defect Group, were the named parties in the Ayala case. We cannot enforce a void agreement in order to protect an attorney who committed malpractice, breached his fiduciary duties, and then abandoned his clients.
III.
Causation by Gladych
Gladych argues causation was not proven against him, because Plaintiffs’ damages were caused by Defect Group.
Gladych and Plaintiffs disagree on the requisite proof for the element of causation. Gladych argues Plaintiffs were required to prove he was the “but for” cause of their damages, which they cannot do because Defect Group was also a cause of damage. (Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1057.) Plaintiffs argue the correct test to apply is the substantial factor test, because their damages were caused by multiple independent forces operating concurrently. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1049; see Viner v. Sweet (2003) 30 Cal.4th 1232, 1240.)
The California Supreme Court has explained that both “but for” and “substantial factor” causation tests may apply in legal malpractice cases, under different factual scenarios. “The text of Restatement [Second of Torts] section 432 demonstrates how the ‘substantial factor’ test subsumes the traditional ‘but for’ test of causation. Subsection (1) of section 432 provides: ‘Except as stated in Subsection (2), the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.’ Subsection (2) states that if ‘two forces are actively operating... and each of itself is sufficient to bring about harm to another, the actor’s negligence may be found to be a substantial factor in bringing it about.’ [¶] Thus, in Restatement [Second of Torts] section 432, subsection (1) adopts the ‘but for’ test of causation, while subsection (2) provides for an exception to that test. The situation that the exception addresses has long been recognized, but it has been given various labels, including ‘concurrent independent causes’ [citation], ‘combined force criteria’ [citation], and ‘multiple sufficient causes’ [citation].” (Viner v. Sweet, supra, 30 Cal.4th at p. 1240.) Concurrent independent causes are “multiple forces operating at the same time and independently, each of which would have been sufficient by itself to bring about the harm.” (Ibid.) Where, as here, the “forces operated in combination, with none being sufficient in the absence of the others to bring about the harm, they are not concurrent independent causes.” (Ibid.) The “but for” causation test therefore applies.
Thus, the question is whether Plaintiffs’ “harm would have been sustained even if [Gladych] had not been negligent.” (Rest.2d Torts, § 432; see Viner v. Sweet, supra, 30 Cal.4th at p. 1240.) There was sufficient evidence to support the trial court’s finding that Plaintiffs’ harm would not have been sustained in the absence of Gladych’s negligence. If Gladych had correctly interpreted the assignment agreements, understood his clients were Plaintiffs, not solely Defect Group, explained to Plaintiffs that they were personally liable for costs if they lost the case, communicated Pardee’s settlement offer to them, explained the true impact of the nonsuit, and not abandoned Plaintiffs, Plaintiffs would not have suffered the loss of the settlement damages, nor would they have become liable for the cost judgment. The trial court’s finding that Gladych was the cause of Plaintiffs’ harm is supported by the evidence.
IV.
Was Gladych’s Performance Below the Applicable Standard of Care?
Gladych argues his performance did not fall below the applicable standard of care, because he was only an “associate counsel” with specific, limited duties.
In Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, the appellate court held an attorney associated in to make a special appearance in the case enters into an attorney-client relationship with the represented party, and owes a duty of care and loyalty to that party, even if the attorney and the client never meet. “The relationship may arise without any direct dealings between the client and the attorney.... [¶]... [¶] That the association is limited to a single appearance is a distinction only of degree, not of kind. In any association, the lead attorney and the associated attorney must ‘divide the duties concerning the conduct of the cause.’ [Citations.] The responsibility for performing the bulk of those duties may be given to the associated counsel, or may be retained by the lead counsel. In the case of a one-time appearance, the duties assigned to the associated counsel are limited in time and scope. But whatever the allocation between them, both attorneys have an attorney client relationship with the litigant they represent until that association is terminated. [¶]... By appearing at a hearing in a case in which the attorney has no personal interest, the attorney is obviously representing the interests of someone else, someone who is a party to that action. The client is such a person; the client’s attorney of record is not. We conclude that an attorney making a special appearance is representing the client’s interests and has a professional attorney-client relationship with the client. [¶]... [¶] An attorney owes a professional duty of care to every person with whom that attorney has an attorney client relationship. Whether the attorney was selected directly by the client or associated by the attorney of record, that relationship exists. ‘[T]he principal attorney and the associate attorney each owes the same duty of loyalty to the client....’ [Citation.] Nor does it make any difference that the associated attorney is being compensated by the attorney of record rather than the client, or is not being compensated monetarily at all. Just as a defense attorney selected and compensated by an insurer nevertheless represents an insured client and owes that client a duty of care [citation], the associated attorney represents the client and owes a duty of professional care to the client. [¶] To summarize, we hold that, by agreeing to ‘specially appear’ in the place of Streit’s attorneys of record, Covington & Crowe undertook a limited association with that firm for the purpose of representing Streit at the hearing on the motion for summary judgment. Covington & Crowe thereby entered into an attorney client relationship with Streit pursuant to which Covington & Crowe owed Streit a duty of care.” (Id. at pp. 445 447.)
However Gladych and Quintrall divided the litigation responsibilities between them, each had an attorney client relationship with Plaintiffs and each owed Plaintiffs a duty of care. Gladych was hired to handle the trial in the Ayala case. He participated in settlement discussions and was aware of Pardee’s settlement offer. He had a duty to convey that settlement offer to Plaintiffs—his clients—whether or not he and Quintrall had specifically agreed on an assignment of the responsibility to convey the settlement offer. Gladych’s communication of the settlement offer to Quintrall and Defect Group did not fulfill his duty to communicate the settlement offer to Plaintiffs.
Gladych also argues the trial court was required to accept the undisputed expert testimony of Gladych’s expert witness, Michael Olson, who testified Gladych’s performance of the duties to which he was assigned as an associate counsel did not fall below the standard of care. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632.) Olson’s opinion, however, was based on two assumptions: (1) that the assignment agreements were valid; and (2) that Gladych was retained only for “limited purpose[s],” including conducting the trial of the Ayala case. As explained, ante, the first assumption was incorrect.
The second assumption was unsupported by the evidence, and rejected by the trial court. Plaintiffs’ expert witness, Ronald Talmo, testified that Gladych should have communicated the settlement offer to Plaintiffs. Talmo also testified trial counsel—Gladych—was essentially in control of the entire case. The trial court accepted Talmo’s, rather than Olson’s, opinion. The court stated: “[W]hen somebody comes on as trial counsel, they become counsel for the purpose of getting in late in the litigation to conduct the trial. They can’t be responsible for what occurred prior, but they can be responsible for their full obligations to their client when they substitute in as a lawyer in the case. [¶]... [O]nce you’re in, you begin to acquire obligations. For example, if Mr. Gladych became aware of a settlement and he was required to tell the plaintiffs, which is what your lawsuit is all about, he had an obligation to tell them. He can’t say, ‘well, I was just in for the trial. It’s Mr. Quintrall’s fault.’ [¶] If somebody thinks otherwise, they’re going to have to give me a little more evidence.” In the statement of decision, the court found, “both Quintrall and Gladych had an obligation to provide timely settlement and appellate information to the plaintiffs. They did not. [¶] The court finds that, like Quintrall, Gladych breached his duty to the clients and this was [the] cause of the financial harm to the plaintiffs.”
There was sufficient evidence supporting the trial court’s finding that Gladych’s performance fell below the applicable standard of care.
V.
Lost Settlement Damages
Gladych argues the trial court erred in awarding lost settlement damages to Plaintiffs. Gladych’s primary argument is that Plaintiffs gave up their right to recover any settlement damages through the assignment agreements. As explained ante, the assignment agreements were void. Plaintiffs were the named parties in the Ayala case, and were entitled to the entirety of the settlement proceeds. Gladych also argues Plaintiffs’ testimony they would have accepted the settlement offer by Pardee is speculative. If Plaintiffs had been correctly advised that the trial court had granted a nonsuit motion, making them liable for Pardee’s costs, and further been advised that Pardee was nevertheless offering a global settlement of $170,000, it is reasonable to infer they would have accepted the offer, leaving each of them $12,666 up, rather than jointly and severally liable for a cost judgment in excess of $50,000.
Gladych also argues the lost settlement damages should have been reduced by the amount of costs incurred in the Ayala case. Don Westerfeld testified Defect Group incurred between $60,000 and $80,000 in costs in the Ayala case. The trial judge in the Ayala case found Defect Group and its attorneys had attempted to ride the coattails of the named plaintiffs in the Rochelle case, in order to minimize their costs in the Ayala case. In its statement of decision, the trial court in the malpractice case found, “Defect Group, through Don Westerfeld sued Rochelle and received back the $26,000.00 it paid for the Ayala costs.” (Italics added.) The language used by the court demonstrates it found the total costs incurred in the Ayala case were $26,000, all of which had been reimbursed. The trial court did not err in refusing to reduce the lost settlement damages by the amount of the costs.
VI.
Statement of Decision
Gladych argues, “[t]he statement of decision fails to address several material issues and gives short shrift to others such that a proper analysis of the judgment is severely hampered.” Therefore, Gladych contends, the judgment must be reversed, citing Social Service Union v. County of Monterey (1989) 208 Cal.App.3d 676, 681. In that case, however, no statement of decision was issued by the court, despite a timely request. Here, by contrast, a statement of decision was issued by the trial court, although Gladych contends it is incomplete.
Gladych also cites McCurter v. Older (1985) 173 Cal.App.3d 582, 593, which was disapproved by the California Supreme Court in In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1137.
The problem with Gladych’s argument on appeal is that he fails to identify in his appellate briefs any issue which was omitted from or given “short shrift” in the statement of decision. (RLI Ins. Co. Group v. Superior Court (1996) 51 Cal.App.4th 415, 437 [appellate court not required to consider points not supported by argument].) We find no error.
At oral argument on appeal, Gladych contended that the trial court did not properly respond to his objections concerning agency. Even if we considered this argument specifically raised for the first time at oral argument, it is without merit because Gladych owed independent duties to Plaintiffs, as discussed in detail, ante. If Gladych complains of the omission of a factual issue relating to agency, our analysis of his independent duties addresses that issue. (In any event, the only specific reference to agency in Gladych’s objections to the statement of decision was in reference to the agency relationship between Plaintiffs and Defect Group, not among Plaintiffs, Gladych, and Quintrall.) If Gladych complains about an omission of a legal issue, that objection cannot be waived; we have thoroughly addressed and rejected his legal arguments on appeal.
Disposition
The judgment is affirmed. Respondents to recover costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.