Romano v. Glieberman, Weise & Assocs

Filed 10/27/06 Romano v. Glieberman, Weise & Assocs. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael B. Harwin, Judge. Affirmed.

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Chapman, Glucksman & Dean, Randall J. Dean and Mark E. DiMaria for Defendants and Appellants Glieberman, Weise & Associates, Inc. and Jeff Glieberman.

Jacobs & Ferraro, Micah R. Jacobs and Eric K. Ferraro for Plaintiff and Respondent.

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Glieberman, Weise & Associates, Inc. and Jeff Glieberman (collectively Glieberman) appeal from the judgment entered against them on Larry Romano’s complaint for breach of contract and negligence. Glieberman challenges only the sufficiency of the evidence of damages. We affirm.

BACKGROUND

Romano has worked as an actor since the mid-1980s. In 1998, he landed a regular role on the television series “The King of Queens.” Shortly thereafter, Romano sought the services of a business manager and financial consultant. He spoke with a number of candidates and ultimately retained Glieberman in March 1999.

Romano left “The King of Queens” in 2000 and ended his relationship with Glieberman in mid-2001. At that point, Romano no longer had sufficient funds available to pay for Glieberman’s services.

Romano filed suit against Glieberman in 2003, alleging claims for breach of contract and negligence. The gravamen of the complaint was that Glieberman breached contractual and tort duties to Romano by providing incompetent financial advice and business management services. The case was tried before a jury, which returned a general verdict in favor of Romano in the amount of $150,000. The trial court denied Glieberman’s motion for new trial and entered judgment in accordance with the jury’s verdict. Glieberman timely appealed.

STANDARD OF REVIEW

“When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)

DISCUSSION

Glieberman does not challenge the sufficiency of the evidence with respect to $55,172.99 in damages for “‘[u]nnecessary fees and stock losses.’” He argues only that there is insufficient evidence to sustain the remaining portion of the verdict, which is approximately $95,000. We disagree.

One of the components of Romano’s claimed damages, which Glieberman does challenge on appeal, relates to a $1.5 million term life insurance policy, renewable for up to 30 years, that Romano obtained in March 1999. The policy called for an annual premium of $1,785, or, alternatively, a semiannual premium of $910.35. The policy lapsed in the fall of 1999 because of failure to make a semiannual premium payment; the lapse allegedly resulted from Glieberman’s dereliction. In November 1999, Romano applied to have the policy reinstated. Glieberman testified that when the application for reinstatement was denied, he informed Romano and advised him to apply for a new policy. But Romano and his wife testified that they did not learn of the denial of reinstatement until roughly July 2001. At that point, they investigated the possibility of obtaining a new policy, but they found that the annual premiums on comparable policies then ranged from $6,000 to over $10,000, which was prohibitively expensive.

The foregoing evidence is sufficient on its own to sustain the disputed $95,000 portion of the verdict. Glieberman does not challenge the sufficiency of the evidence as to breach and causation. When the policy lapsed in 1999 and was not reinstated, Romano lost his right to $1.5 million worth of life insurance at a $1,785 annual premium through the year 2029. By the time the Romanos discovered the problem in 2001, the annual premium on replacement insurance would have been at least $6,000. Counting only the years from discovery to 2029, the damages come to $118,020 (i.e., ($6,000 - $1,785) x 28 years).

Glieberman’s arguments concerning the lapsed insurance policy lack merit. First, he argues that Romano has not been harmed by the lapse of the policy because he has not died, so his beneficiaries have never been entitled to collect the policy benefits. The argument fails because it ignores the fact that Romano was harmed by being deprived of a right to $1.5 million of life insurance through 2029 at a $1,785 annual premium.

Second, Glieberman argues that Romano was not harmed because term life insurance has no cash value, so the policy “had no value beyond the period of its annual term.” The argument fails because it is possible to be harmed by the loss of a 30-year renewable term policy even if the policy itself has no cash value. When the policy was in force, Romano had an enforceable contractual right to continue to obtain $1.5 million in life insurance coverage through the year 2029 by paying only $1,785 annually. Because the policy lapsed, as of 2001 it would have cost Romano at least $6,000 annually to obtain the same coverage. That difference in premiums constitutes compensable damages that have nothing to do with the policy’s cash value or lack thereof.

Third, Glieberman argues that Romano cannot recover the difference in premiums because he did not obtain a replacement policy and consequently has not paid any higher premiums. The argument fails because Romano’s failure to obtain replacement insurance does not render the harm uncompensable or turn it into a mere threat of future harm. Romano has already been harmed because he has already lost his right to $1.5 million in life insurance through 2029 for $1,785 annually.

Fourth, Glieberman argues that Romano “has presented no evidence of the present value of any differential in the premium payment for the lapsed policy of term insurance and that required for any replacement policy.” But Glieberman never raised the issue of present value at trial, either by introducing evidence on the issue or requesting a relevant jury instruction. He cites no authority for the proposition that it was Romano’s burden to tender the issue at trial, and we are aware of none. On the contrary, the case law indicates that a plaintiff need not raise the issue of present value at all. (See Wilson v. Gilbert (1972) 25 Cal.App.3d 607, 613-614 [affirming an award of the plaintiff’s lost future earnings despite the lack of evidence of the present cash value of those future earnings].)

Finally, Glieberman argues that the cost of a replacement policy “is far too subject to conjecture” to support any award of damages, because the cost “may be greater or lesser, depending upon the market, demographic information, [Romano’s] future health, and/or his smoking or other habits.” The argument fails, because the record contains substantial evidence that in 2001 the annual premium for a replacement policy would have been between $6,000 and $10,000.^[1]

For all of these reasons, the evidence concerning the life insurance policy was sufficient in itself to sustain the disputed $95,000 portion of the verdict.

DISPOSITION

The judgment is affirmed. Respondent shall recover his costs on appeal. NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.^*

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^[1] Glieberman notes that the lapsed policy was a nonsmoker policy and that the premium quotes for replacement policies were at smoker rates, because in 2001 Romano was a smoker. But Glieberman does not direct us to any evidence that Romano’s smoking would have caused the original policy to terminate if the policy had not already lapsed as a result of nonpayment of premiums. Thus, the facts remain that (1) Romano had a contractual right to $1.5 million of term life insurance through 2029 at an annual premium of $1,785; (2) that right was extinguished as a result of Glieberman’s breach of duties to Romano; and (3) in 2001, when Romano learned that the policy was gone, it would have cost him at least $6,000 annually to buy a new $1.5 million term life insurance policy.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)