Associated Reproduction Services v. Law Offices of Joseph W. Carcione

Filed 9/27/07 Associated Reproduction Services v. Law Offices of Joseph W. Carcione CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

ASSOCIATED REPRODUCTION SERVICES,

INC.,

Plaintiff and Respondent, A114995

v. (MarinCountySuper.

Ct. No. CV042533)

LAW OFFICES OF JOSEPH W. CARCIONE,

JR., etc.,

Defendant and Appellant.

_________________________________________/

The Law Offices of Joseph W. Carcione, Jr., a professional corporation, (the law firm) appeals from a judgment entered in a breach of contract action. It contends, (1) the trial court erred when it prohibited it from cross-examining a witness, (2) the judgment is not supported by substantial evidence, and (3) the court erred when it awarded prejudgment interest. We reject these arguments and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The law firm represented a party in a civil action being litigated in the Marin County Superior Court. One of the other parties in that litigation produced a large number of documents in discovery. The law firm contracted with respondent Associated Reproduction Services (Associated), to copy them.

No one was sure precisely how many documents had been produced. Associated estimated the number at between 140,000 and 220,000. Because the number of documents was uncertain, Associated could not provide a firm estimate of how much it would cost to copy them. Instead, Associated said it would send field technicians to San Rafael, (where the documents were located) and copy them there. Associated would charge $500 per technician per day, plus 20 cents per copy over 2000. In addition, Associated would charge separately to copy items such as tapes, pictures, and film, a certain amount to index the documents copied, and would charge for miscellaneous expenses such as transportation and office space rental.

Associated started copying the documents at the local San Rafael storage site in early May 2003, and quickly realized that the job would take much longer than the parties contemplated. Therefore, the law firm and Associated agreed that the documents would be moved to and copied in Associateds main facility in Whittier, where the job would go more quickly. As part of the change, Associated agreed to waive the $500 per day technician fee.

The documents were moved and Associated continued copying and delivering them to the law firm. On May 16, 2003, Liam Blaney, the paralegal for the law firm who was coordinating the job, sent a fax to Associated complaining that he had not received an itemized bill.

That same day, Associated sent an itemized bill to the law firm stating that the charges, to that point, were $54,674.37.

Again that same day, Blaney sent an e-mail to Associated entitled stop all work NOW!!! The e-mail stated:

I just received your ridicules [sic] estimate.

Cease all work immediately.

Get in contact with this office immediately to work out something that makes sense.

Again. Do not do any further work.

On May 20, 2003, Danielle Ukshini, an attorney for the law firm, sent another fax to Associated. As is relevant it stated as follows:

The latest billing of projected costs . . . at more than double anything approaching reality is the last straw. Even after being told to stop and do no more work by Mr. Carciones faxed letter, we received a delivery of 5 more boxes of materials.

Please have a lawyer acting on your behalf contact me regarding this matter.

In the meantime, let me be absolutely clear: Do not perform any other work. (Original underscoring.)

Thereafter, the law firm and Associated exchanged correspondence in an attempt to settle the dispute. Then in July 2003, Associated sent a detailed invoice to the law firm saying it owed $25,986.28 for the work Associated had performed.

When a further exchange of letters did not resolve the dispute, Associated filed a complaint against the law firm seeking damages under three theories: breach of contract, open book account, and account stated. Associated also filed a cause of action seeking to recover $220 per month in storage fees for documents that Associated had, but that the law firm refused to retrieve.

The case proceeded to a court trial in May 2006. After hearing the evidence presented, the court awarded Associated $25,986.28 for the work it performed plus $2,200 in storage fees.

I. DISCUSSION^[1]

A. Cross-Examination

The law firm was represented at trial by an attorney named Aaron Markowitz. Most of the first day of the trial was taken up by the direct and cross-examination of John Antonelli, the owner and president of Associated. As the day drew to a close, Markowitz told the court he was nearly finished with his cross-examination:

Your Honor, theres just a couple of documents wed like to have here with us tomorrow and finish up. It wont take us very long tomorrow.

The court indicated that was acceptable, and told Antonelli he would be back on the witness stand for a brief time the next day.

The following day, Markowitz did not appear in court. Instead, the law firm was represented by another attorney, Ray Mueller. Muller said that [d]ue to staffing concerns Markowitz had to appear at the deposition of an expert.

Counsel for Associated objected accusing the law firm of double-teaming the witness. Counsel also said it was hard to accept that something came up overnight, an expert deposition today, and he finds out about it last night . . . .

The court expressed a preference to not have further cross-examination, but because it was a court trial, it was willing to relax the rules. However, the court was unwilling to grant the law firm carte blanche reexamination of the witness:

I would allow you to ask those questions for which there was contradictory testimony in his deposition and examine him as far as that testimony is concerned. Thats what was left yesterday. We had a little bit of time at the end of the day yesterday that we could have continued on with Mr. Markowitz in other matters, but he concluded the testimony, other than what was remaining that was caught up in the deposition transcript which he did not have. So we allowed him to resume this morning. We allowed the cross-examination to resume this morning as to that contradictory testimony which he found in the deposition.

So Im willing to permit you to do that and allow you to do that, but its going to be limited testimony. Im doing it over the objection of the plaintiff. I recognize Mr. Browns objection. Its not an unreasonable objection, and if we had a jury trial, I might agree. In this case Im willing to allow this courtesy to the defense.

Thereafter, the court in fact allowed a lengthy cross-examination of Antonelli.

The law firm now contends the trial court erred because it Prohibit[ed] [it] From Cross-Examining The Key [Associated] Witness.

We reject this argument for several reasons. First, it is based on a false premise. The court did not prohibit the law firm from cross-examining Antonelli. It simply limited that cross-examination. In fact, the law firm cross-examined Antonelli extensively on both days of the trial.

Second, the court had a sound legal basis for acting as it did. A trial court has broad discretion to control the examination of a witness so that it proceeds fairly and efficiently. (Evid. Code,  765, subd. (a).) By rule, many courts state that only one attorney representing the same party may cross-examine a witness. (See, e.g., Contra Costa Superior Court Local Rules, rule 19; Monterey County Superior Court Local Rules, rule 17.02; Humboldt County Superior Court Local Rules, rule 3.1(d).) Given that the court could have prohibited Mueller from examining Antonelli at all, we cannot conclude the court erred when it allowed the law firm to conduct its examination subject to restrictions.

Third, the restrictions imposed by the court were reasonable. The record strongly suggests that the only reason Markowitz did not finish his cross-examination of Antonelli on the first day of trial was because he had failed to bring Antonellis deposition to court. Allowing the law firms second attorney to complete the task the first attorney failed to complete, and no more, was reasonable and certainly did not constitute an abuse of discretion.

Fourth and finally, even if we were to assume, arguendo, that the court erred when it restricted the law firms cross-examination of Antonelli, we see no prejudice. The law firm has not cited, and we are not aware of, any fact that the law firm was precluded from covering during its cross-examination of Antonelli. An appellant not only has the burden of showing error, he must show injury from that error. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  409, p. 461.) The law firm has not carried its burden in this case.

B. Sufficiency of the Evidence

The law firm contends the courts judgment is not supported by substantial evidence.

The standard we use to evaluate this argument is familiar. On appeal, all conflicts must be resolved in favor of [respondents], and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the [trier of fact]. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the [trier of fact.] (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)

Here, the law firm challenges three aspects of the courts judgment. First, the court awarded Associated $10,037 for the 50,185 documents that it scanned and printed. The law firm contends this portion of the judgment is not supported because those documents were Bates stamped incorrectly. While the documents were stamped incorrectly, Antonelli testified that Associated corrected the error.^[2] It reprinted and restamped all of the documents at its own expense and provided them to the law firm.^[3]The trial court credited Antonellis testimony on this point, What I have heard is that the documents were restamped, the ones that were scanned and printed were reprocessed and Bates stamped in a correct fashion, and then shipped off to the defendants offices. We conclude this aspect of the judgment is supported.

The law firms next argument focuses on documents it contends were scanned, but not delivered, denying the firm the benefit of any partial performance by Associated. The record indicates Associated scanned but did not print 50,182 documents. The court awarded Associated $7,527.30 for this work at a rate of 15 cents per copy. In addition, the record indicates Associated billed the law firm just over $2,000 for specialty media copying, i.e., items such as film, slides, and photographs. Again, the court awarded Associated the full amount it had requested. The law firm now contends these aspects of the judgment are not supported by substantial evidence because Associated failed to perform its obligation under the contract. The law firm reasons that having never provided the law firm with copies of the documents that were scanned but not printed or with copies of the specialty media, Associated may not recover for this partial performance. We are unpersuaded.

The law firm concedes a partys failure to perform its obligation under a contract can be excused, (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243) and the record here indicates Associated had a very good excuse for its failure to provide the law firm with copies of the materials in question: the law firm told it not to do so. Blaneys May 16, 2003 e-mail was quite specific. He told Associated to stop all work NOW!!! and to [c]ease all work immediately. The May 20, 2003, fax by Ukshini confirmed Blaneys request. She criticized Associated for sending boxes of documents to the law firm after Blaneys e-mail and she took pains to be absolutely clear. Do not perform any other work. (Original underscoring.) Since the law firm told Associated stridently and repeatedly not to perform any more work, Associated cannot be faulted to failing to performing any more work. There is substantial evidence to support the conclusion that Associateds failure to perform was excused.^[4]

The law firms final argument on this point is that the court erred when it awarded Associated $1,000 in transportation costs. According to the law firm, that award is not supported by substantial evidence. This is clearly incorrect. Associated sent the law firm an invoice stating that it had incurred $1,000 in transportation costs. The court could, based on the invoice, award Associated the transportation costs.

C. Prejudgment Interest

The trial court awarded Associated $25,986.28 for the work it had performed. In addition, the court awarded prejudgment interest of 10 percent from the filing of the complaint. The law firm now contends the court erred when it awarded prejudgment interest. We disagree.

A court may award prejudgment interest where damages are certain or capable of being made certain by calculation. (Civ. Code,  3287, subd. (a).) Here, the court awarded as damages the precise amount Associated sought in an invoice that it sent to the law firm in July 2003. By any reasonable measure, damages here were certain. The court did not err.^[5]

III. DISPOSITION

The judgment is affirmed. Costs to respondent.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Gemello, J.

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^[1] The briefs filed by appellant do not comport with the standards we expect of counsel appearing before this court. They cite to facts that are not in the record, (see Cal. Rules of Court, rule 8.204(a)(1)(C)) misrepresent the record, and make legal arguments that are unintelligible.

^[2] The relevant portion of Antonellis testimony is as follows:

Q. Do you know if were you aware at that time that there were some incorrect Bates numbers put on these documents?

A. I was made aware of it, yes.

Q. And did you then correct that?

A. Correct. Yes.

Q. How did you correct it?

A. Well, first we delivered the documents. Even though they were Bates numbered incorrectly, at least it was the information for them to prepare for the deposition.

Then at our cost, we actually produced those documents again with the correct Bates numbering and produced those as well.

Q. You didnt charge that cost to Mr. Carciones office?

A. No.

^[3] The law firm ignores this evidence, stating repeatedly that the documents were never replaced. On appeal, we are obligated to view the record in the light that is most favorable to the judgment. (Crawford v. Southern Pacific Co., supra, 3 Cal.2d at p. 429.)

^[4] Although we need not base our decision on this ground, we note that the trial courts ruling is supported by basic contract principles. As Witkin explains, the prevention or hindrance of the other partys performance operates as an excuse for that performance. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts,  851, p. 937.)

^[5] The law firm also argues that the court could not award prejudgment interest because it was not named as a defendant in the original complaint. In fact, the first amended complaint names Joseph W. Carcione, Jr., dba Law Office of Joseph W. Carcione, Jr., as a defendant, and defendant Law Offices of Joseph W. Carcione, Jr. appeared by answer filed September 15, 2004. In any event, the law firm has not cited any authority to support its argument. We deem the issue to be waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)