Filed 5/27/22 Maraziti v. Idaho Mountain Development, LLC CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Affirmed.

Webb & Carey and Kevin A. Carey for Plaintiff and Appellant Richard J. Maraziti and Cross-Complainants and Appellants Idaho Mountain Development, LLC and Signature Log Homes, LLC.

Law Office of Andrew H. Griffin, III and Andrew H. Griffin, III for Defendant, Cross-defendant, and Respondent.

INTRODUCTION

Andrew H. Griffin, III dba Law Office of Andrew H. Griffin, III (hereafter, Griffin) represented Richard J. Maraziti in a legal malpractice case against Maraziti’s former attorney, William Rathbone. During that litigation, Griffin made false statements to the trial court concerning the availability and preparedness of Maraziti’s designated expert witnesses. Based in part on these misstatements, the court precluded one of the expert witnesses, and possibly two of them, from testifying at trial. The case proceeded to trial, judgment was entered in favor of Rathbone, and Maraziti appealed. While the appeal was pending, the matter was resolved through a confidential settlement agreement reached during mediation.

After the prior legal malpractice case concluded, Maraziti filed the present action against Griffin for legal malpractice, breach of fiduciary duty, fraud, and breach of contract based on Griffin’s making of false expert witness statements. Two companies related to Maraziti—Idaho Mountain Development, LLC (Idaho Mountain) and Signature Log Homes, LLC (Signature)—brought identical claims against Griffin by way of a cross-complaint. At trial, Maraziti and his companies (collectively, Maraziti) did not introduce the settlement agreement from the prior legal malpractice case into evidence. On the contrary, Maraziti persuaded the court to exclude the settlement agreement from evidence on grounds that the mediation confidentiality statutes (Evid. Code, § 1115 et seq.) barred its admission.

After trial, the court issued a statement of decision finding that Maraziti failed to prove any of his claims. It found he failed to establish the elements of proximate causation or damages for his legal malpractice and breach of fiduciary duty claims because there was no evidence concerning the terms of the settlement agreement from the prior litigation. The court found he failed to establish his fraud claim because he personally participated in, and orchestrated, the making of the false expert witness statements. Finally, the court found he voluntarily dismissed his breach of contract claims prior to trial. The court entered judgment to this effect. Then, it denied Maraziti’s motion for a new trial by operation of law (Code Civ. Proc., § 660, subd. (c)), reasoning that the jurisdictional deadline to rule on the motion had expired.

Maraziti appeals the judgment. He asserts: (1) the court erred in finding that he failed to satisfy his burden of proof for his legal malpractice and breach of fiduciary duty claims; (2) substantial evidence did not support the determination that he participated in, and orchestrated, the making of the false expert witness statements in the prior legal malpractice case; (3) the court failed to adjudicate his breach of contract claims; and (4) the court erred in denying his motion for a new trial by operation of law because the jurisdictional deadline to rule on the motion had not yet expired.

We reject Maraziti’s first three contentions, but agree with him that the trial court erred when it denied the motion for a new trial by operation of law. As Maraziti asserts, the jurisdictional deadline to rule on the motion for a new trial had not expired when the court ruled on the motion. However, Maraziti has not demonstrated prejudice from this ruling; therefore, he has not established reversible error. Finding no other error, we affirm.

BACKGROUND

The Complaint in the Underlying Action

In 2010, Maraziti filed a lawsuit against his former attorney, Rathbone, and Rathbone’s employer law firm, Gordon & Rees. (Idaho Mountain Development, LLC, et al. v. William M. Rathbone, et al. (Super Ct. San Diego County, 2014, No. 37-2010-00085971-CU-PN-CTL); hereafter, the Underlying Action). He asserted a legal malpractice claim and other related claims based on allegations that Rathbone engaged in unfair business and real estate transactions with him. Further, he alleged that Rathbone failed to provide adequate disclosures to him in connection with the transactions in violation of former California Rules of Professional Conduct rules 3-300 (“Avoiding Interests Adverse to a Client”) and 3-310 (“Avoiding the Representation of Adverse Interests”). Griffin was Maraziti’s attorney in the Underlying Action.

Two transactions formed the basis for Maraziti’s legal malpractice case against Rathbone and Gordon & Rees. The first transaction involved a property in Big Bear called Gray’s Landing. Maraziti alleged he owned Gray’s Landing and received a foreclosure notice for the property. He alleged he turned to Rathbone, his attorney and friend, for assistance to avoid a foreclosure sale. According to Maraziti, Rathbone offered to buy Gray’s Landing from Maraziti with an option for Maraziti to repurchase it at a later date; however, the transaction was substantially unfair to Maraziti in its terms. Specifically, it required Maraziti to give Rathbone the down payment for the sale and to continue making mortgage and interest payments on the property. Despite the alleged unfairness of the deal, Maraziti proceeded with the transaction and sold Gray’s Landing to Rathbone.

The second transaction involved a condominium development in Idaho called Alpine Village Resort. Maraziti alleged he was asked by Rathbone to be an equal partner in a joint venture to develop the project. Maraziti alleged he accepted the proposal and invested substantial money and time in the project. However, Rathbone allegedly did not make him an equal partner; rather, he gave one of Maraziti’s companies a mere minority ownership interest in the project. Maraziti argued Rathbone breached his fiduciary duties and violated his ethical duties by, among other things, failing to document the partnership agreement; reneging on the partnership agreement; failing to make written disclosures to him; and not advising him to obtain independent counsel before agreeing to the partnership.

The Expert Witness Designations in the Underlying Action

As the Underlying Action advanced toward trial, the parties exchanged expert witness designations. Griffin, on behalf of Maraziti, served defense counsel with a designation identifying attorney James King as a legal standard of care expert and accountant Jeffrey Porter as a damages expert. The designation stated King and Porter had agreed to testify for Maraziti and would be sufficiently familiar with the subject matter of the case to submit to a meaningful deposition concerning their expected trial testimony.

Gordon & Rees noticed the depositions of King and Porter for September 14, 2011 and September 19, 2011, respectively. One day prior to King’s scheduled deposition, Griffin told defense counsel that “Mr. King ha[d] just informed [him] that for personal and scheduling reasons he [was] no longer available to serve as an expert witness,” and King would not sit for his deposition. Griffin asked defense counsel for permission to designate a substitute expert witness for King. Defense counsel stated they did not believe King was suddenly unavailable; therefore, they did not agree to a substitution. In response, Griffin sent defense counsel a letter claiming he had “honestly and accurately state[d] the facts” concerning King’s unavailability. Then, just one day prior to Porter’s scheduled deposition, Griffin notified defense counsel that Porter was unavailable for his deposition.

Thereafter, the parties filed competing motions regarding Maraziti’s expert witness designations. Maraziti moved for permission to substitute an expert witness for King. Meanwhile, the defendants moved to strike King as an expert witness. In connection with these filings, Griffin signed and filed a legal brief that stated: “Just last week, Mr. King informed [him] that due to his personal and scheduling reasons[,] that he was no longer able to perform the function that was required of him.” In another legal brief, he claimed that King had, “just stated that for his own personal and scheduling reasons[, he] was unable to perform the duties requested of him.” Griffin signed and filed declarations attesting to these statements.

It was subsequently revealed that these statements were false. At the hearing on the parties’ competing motions, King testified that he never agreed to serve as an expert witness for Maraziti. He added that, prior to the date of his noticed deposition, he had not received a copy of any complaint or discovery, he was unaware his deposition had been noticed, and he had formed no opinions about the subject matter of the litigation. King’s testimony contradicted several assertions contained in the legal briefs and declarations that Griffin signed and filed on Maraziti’s behalf.

After King testified, the court opined that Griffin’s expert witness statements were “at best misleading and more probably disingenuous.” Based on these misstatements, as well as Griffin’s failure to comply with the expert witness designation requirements of the Code of Civil Procedure, the court denied Maraziti’s motion to substitute a new expert witness for King and granted the defendants’ motion to strike King as an expert witness. The court also ordered monetary sanctions payable to the defendants.

A few months later, the court precluded Porter from testifying as well. It is not apparent from the record why the court precluded his testimony.[1] For present purposes, it will suffice to note that, as a result of the court’s rulings, Maraziti proceeded to trial without his legal standard of care expert (King) or his damages expert (Porter).

The Resolution of the Underlying Action

After trial, a jury rendered a special verdict finding against Maraziti and in favor of the defense on all issues that were legal in nature. Of relevance here, it found “none of the Defendants (including Mr. Rathbone) committed professional negligence or breached a duty” owed to Maraziti.

The court also issued a statement of decision finding against Maraziti and in favor of the defense on all issues that were equitable in nature. It found “Maraziti was provided with all required disclosures” for the Gray’s Landing transaction, which “was fair and reasonable to Mr. Maraziti.” It found “Maraziti was provided full disclosures” for the Alpine Village Resort project as well, and “the terms of the transaction relating to Alpine Village Resort . . . were fair and reasonable to Mr. Maraziti.” Finally, the court adopted the jury’s finding that “Mr. Rathbone complied with all applicable standards of care and complied with his fiduciary duties relating to any and all advice, transactions, or business relationships with Mr. Maraziti” and his companies.

Maraziti appealed the judgment. While the appeal was pending, Maraziti, Rathbone, and numerous other parties participated in a mediation to resolve the Underlying Action and three other actions. The mediation produced a global settlement agreement, the terms of which are confidential and unknown to this court.[2] After the settlement was reached, Maraziti dismissed his appeal.

The Present Litigation

In 2013, Maraziti filed the present lawsuit against his former attorney, Griffin. The operative complaint asserted causes of action for legal malpractice; breach of fiduciary duty; fraud; and breach of written, oral, and implied contracts. Of relevance here, it alleged Griffin breached his professional and fiduciary duties when he made the false expert witness statements in the Underlying Action. It alleged Griffin’s tortious conduct was “the proximate and direct legal cause of . . . damages . . . in excess of the sum of $6 million.” It also alleged Griffin breached his contract for legal services by, among other things, “failing to . . . retain[] and prepar[e] expert witnesses.”

Maraziti’s companies (Idaho Mountain and Signature) were brought into the case as well. They filed a cross-complaint against Griffin that was identical to the complaint Maraziti filed against Griffin.[3] Additionally, Griffin filed a cross-complaint against Maraziti for unpaid attorney fees.

On the first day of trial, a discussion ensued regarding whether Griffin had adequately responded to the operative complaint. During the discussion, Maraziti offered “to make things simpler,” dismiss his breach of contract claims, and “proceed just under the tort theories.” The court accepted Maraziti’s offer and dismissed the breach of contract claims without prejudice. Thereafter, trial commenced on Maraziti’s surviving claims for legal malpractice, breach of fiduciary duty, and fraud, and on the pending cross-complaints.

Maraziti called three witnesses at trial—Griffin, Maraziti himself, and Daniel White, an expert witness on the legal standard of care. Griffin testified under a grant of use immunity concerning his conduct and representation of Maraziti during the Underlying Action. Of pertinence here, he testified that Maraziti prepared all of the letters, legal briefs, and declarations containing false statements about expert witnesses. Griffin admitted he signed and/or filed the documents while knowing that at least some of them contained false statements.

Maraziti relayed his version of the Gray’s Landing and Alpine Village Resort transactions while on direct examination. In particular, he testified about the terms of the transactions and the disclosures (or lack thereof) that he received from his former attorney, Rathbone. On cross-examination, Griffin questioned Maraziti about the active role he played in the Underlying Action. Maraziti admitted he sometimes provided background information and draft legal filings to Griffin in the Underlying Action. However, Maraziti testified he did not prepare the letters that were sent to defense counsel about his expert witnesses and, furthermore, Griffin attested to the veracity of the false expert witness statements contained within any legal filings.

After Maraziti testified, a dispute arose among the parties concerning the admissibility of the settlement agreement from the Underlying Action. Griffin sought to admit the settlement agreement for reasons that are not apparent from the record. Maraziti, on the other hand, filed an “objection” to preclude the admission of the settlement agreement. He conceded the settlement agreement may be relevant to whether Griffin was entitled to a setoff against a monetary damages award. However, he argued the settlement agreement was a document prepared pursuant to mediation and, therefore, the mediation confidentiality statutes (Evid. Code, § 1115 et seq.) barred its admission. The trial court agreed with Maraziti and ruled the settlement agreement was inadmissible.[4]

After the court ruled on the admissibility of the settlement agreement, White testified as Maraziti’s expert witness on the legal standard of care. He opined that both Rathbone and Griffin breached their standards of care and the fiduciary duties they owed to Maraziti during their representations of him. He testified that Rathbone breached his professional duties and his duty of loyalty in various respects, including by participating in the Gray’s Landing and Alpine Village Resort transactions and by failing to provide Maraziti with adequate disclosures relating to the transactions. He opined that Griffin breached the applicable standard of care and his fiduciary duties by making false statements in the Underlying Action concerning the expert witnesses and by failing to secure timely replacement witnesses after it became apparent the designated expert witnesses were unable to testify.

Griffin called just one witness at trial—Charles Grebing. Grebing was Rathbone’s attorney during the Underlying Action. Grebing testified about various litigation positions that Rathbone took in the Underlying Action, including his stance that the transactions forming the basis of the case were fair and reasonable to Maraziti. He also testified the Underlying Action was resolved by means of a settlement agreement that was reached during mediation while the case was on appeal. Grebing did not testify about the contents of the settlement agreement or the specifics of the mediation.

On June 16, 2020, the trial court issued a statement of decision finding in favor of Griffin on all causes of action asserted in the operative complaint. The statement of decision summarized White’s testimony at length. The summary suggests the court was skeptical, to say the least, that either Rathbone or Griffin had fulfilled their professional or fiduciary duties during their representations of Maraziti. However, the court did not expressly rule on whether they breached their professional or fiduciary duties. Instead, it ruled that Maraziti had failed to prove his legal malpractice and breach of fiduciary duty claims because he did not establish the elements of proximate causation or damages for either claim.

In reaching this conclusion, the court found “[n]o evidence was ever submitted by [any] party showing what the [Underlying Action] actually settled for. Therefore, [the] court [could not] possibly make a finding that [Maraziti] could have settled for more than [he] actually did, and surely not to a legal certainty.” The court stated that its “inability to know the terms of the settlement in the underlying case (due to it being the result of a mediation as well as being subject to a protective order) preclude[d] the court from making a finding, to a legal certainty, that either the terms of the settlement were outside the scope of reasonable settlements or that [Maraziti] could have settled for an amount or award that [was] significantly greater than what the settlement provided to [Maraziti].”

As for the fraud claim, the court found that Maraziti failed to prove his claim because “Maraziti participated and orchestrated the fraudulent misrepresentation[s] as to opposing counsel and the court.” In support of this conclusion, the court found that Maraziti learned of his expert witnesses’ unavailability and/or unpreparedness “sometime in September 2011.” The court found that Maraziti then prepared the misleading letters that were sent to opposing counsel, as well as the legal briefs and declarations containing the false expert witness statements. In sum, the court concluded that “Maraziti’s participation in and orchestration of the misrepresentations precludes any possible finding that Griffin somehow defrauded Maraziti.”

Additionally, the statement of decision found that Griffin failed to prove his cross-claim against Maraziti for unpaid attorney fees.

On July 6, 2020, the court entered judgment granting no relief to any party against any other party. On December 30, 2020, Maraziti served notice of entry of judgment on Griffin.

On January 4, 2021, Maraziti filed a notice of intention to move for a new trial. On January 14, he filed a motion for a new trial.

In the motion for a new trial, Maraziti argued that the court erred when it found that he failed to prove causation or damages for his legal malpractice and breach of fiduciary claims. He argued he was required only to show that he “would have recovered more than zero” dollars but for Griffin’s breaches, given that he received nothing from the judgment in the Underlying Action. He asked the court to “reopen the evidence,” at minimum, so the settlement agreement could be admitted into evidence.

Maraziti raised a handful of other arguments of relevance to this appeal as well. He argued the court applied the wrong legal standard to the breach of fiduciary duty claim by requiring him to prove causation and damages to a legal certainty. He argued there was insufficient evidence to support the finding that he participated in, and orchestrated, the making of false expert witness statements. He argued the court altogether failed to rule on his breach of contract claims. Finally, he argued the court erred by admitting Grebing’s testimony and by judicially noticing certain findings that were rendered in the Underlying Action’s statement of decision.

On February 25, 2021, the court denied the motion for a new trial. Citing Code of Civil Procedure section 660, the court reasoned that its “power to rule on a motion for new trial ha[d] expired.”

Maraziti appeals.

DISCUSSION

The Legal Malpractice and Breach of Fiduciary Duty Claims

The trial court found that Maraziti failed to prove his legal malpractice and breach of fiduciary duty claims because he did not establish the elements of proximate causation or damages for either claim. We agree.

A plaintiff bringing a legal malpractice cause of action “must generally establish ‘(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.’ ” (O’Shea v. Lindenberg (2021) 64 Cal.App.5th 228, 235.) “ ‘[F]ailure to prove . . . any of [the elements] is fatal to recovery.’ ” (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1581 (Namikas).)

“ ‘In the legal malpractice context, the elements of causation and damage are particularly closely linked.’ [Citation.] The plaintiff must prove, by a preponderance of the evidence, that but for the attorney’s negligent acts or omissions, he would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.” (Namikas, supra, 225 Cal.App.4th at p. 1582.) “ ‘It is not enough for [the plaintiff] to simply claim . . . that it was possible to obtain a better settlement or a better result at trial. The mere probability that a certain event would have happened will not furnish the foundation for malpractice damages.’ [Citation.] ‘ “Damage to be subject to a proper award must be such as follows the fact complained of as a legal certainty.” [Citation.]’ [Citation.] In other words, the plaintiff must show that ‘[he] would certainly have received more money [or had to pay less] in settlement or at trial.’ ” (Ibid.)

“The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) “ ‘The causation analysis involves two elements. “ ‘One is cause in fact. An act is a cause in fact if it is a necessary antecedent of an event.’ [Citation.]” [Citation.] The second element is proximate cause. “ ‘[P]roximate cause “is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor’s responsibility for the consequences of his conduct.” ’ ” ’ ” (Tung v. Chicago Title Co. (2021) 63 Cal.App.5th 734, 744.)

In the proceedings below, Maraziti opposed the admission of the settlement agreement from the Underlying Action. He filed an “objection” to the introduction of the settlement agreement at trial, and argued—successfully—that the settlement agreement was inadmissible because it fell within the scope of the mediation confidentiality statutes. (Evid. Code, § 1115 et seq.; see Cassel, supra, 51 Cal.4th at p. 117.) In an illustration of the familiar adage “be careful what you wish for,” the trial court subsequently ruled that, in the absence of any evidence concerning the terms of the confidential settlement agreement, Maraziti had failed to demonstrate that he would have achieved a more favorable outcome but for Griffin’s alleged breaches of his professional and fiduciary duties.

We agree with the trial court’s conclusion. Maraziti adduced no evidence concerning the terms under which the Underlying Action was resolved. In the absence of such evidence, he could not—and did not—establish that he suffered harm as a proximate result of Griffin’s alleged breaches. Maraziti’s failure to establish proximate causation or damages at trial doomed his legal malpractice and breach of fiduciary duty claims.

On appeal, Maraziti argues that the trial court erroneously saddled him with the burden of proving that he would have achieved a more favorable outcome but for Griffin’s alleged negligence and breach of fiduciary duty. He maintains that it was Griffin who should have had the burden of introducing the settlement agreement into evidence because he bore the burden of proving his affirmative defense of offset. (See Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 444 [“A defendant seeking an offset against a money judgment has the burden of proving the offset.”].)

Whether Griffin had the burden of establishing offset as an affirmative defense has no bearing on whether Maraziti satisfied his burden of proving the essential elements of his legal malpractice and breach of fiduciary duty claims. As noted, those essential elements include proximate causation and damages. Maraziti, as the plaintiff, bore the burden of proof on these issues—i.e., he bore the burden of establishing that he would have obtained a more favorable outcome but for Griffin’s alleged negligence and breach of fiduciary duty. (See Evid. Code, § 500 [“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.”]; Viner v. Sweet (2003) 30 Cal.4th 1232, 1241 [“In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.”], first italics added.) The trial court did not erroneously shift the burden of proof on these issues to Maraziti; rather, it correctly held him to his burden of proof.[5]

Along similar lines, Maraziti contends the court impermissibly held him to a burden of proof higher than the applicable preponderance of the evidence standard. He claims he was subjected to a heightened burden of proof because the statement of decision provided that damages must be proven to a “legal certainty,” a standard he failed to satisfy in the court’s view. Maraziti was not held to a heightened burden of proof. Indeed, courts routinely use the terminology “legal certainty” when discussing the showing a plaintiff must make to establish a legal malpractice claim. (See, e.g., Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1461–1462.) “[T]he ambiguous term ‘legal certainty’ simply means the level of certainty required by law, which is established by the applicable standard of proof.” (Masellis v. Law Office of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1092.) Further, there is no indication in the record, express or implied, intimating that the trial court equated the commonly-used phrase “legal certainty” with a heightened burden of proof. Therefore, we conclude the court’s mere citation to the familiar “legal certainty” language does not suggest it applied the wrong standard of proof.[6]

Finally, Maraziti contends that, to the extent he had any burden of proving proximate causation or damages, he merely had to show that he “would have recovered more than zero [dollars] against Rathbone but for Griffin’s legal malpractice.” He emphasizes that the jury in the Underlying Action returned a defense verdict and awarded him no recovery. According to Maraziti, “a better result would be even a mere dollar more.”

This argument overlooks several key events that transpired subsequent to the rendering of the verdict. After the jury returned its verdict, Maraziti appealed the ensuing judgment, participated in mediation with the defendants and other parties, and executed a global settlement agreement resolving the Underlying Action and several other matters. The settlement agreement effectively extinguished, and supplanted, the judgment from the Underlying Action. (See Armstrong v. Sacramento Valley Realty Co. (1919) 179 Cal. 648, 651 [“The agreement in question, being a voluntary settlement of the controversy made during the pendency of an appeal from a judgment embodying the controversy, it became as binding and effective upon all of the parties as the judgment itself would have been had it become final [citations], and, therefore, it must be held that the agreement of compromise and settlement extinguished the judgment”]; Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1180 [“a valid settlement agreement between the parties effectively extinguishes the judgment from which the appeal is taken, thus, ending the prior dispute between the parties”].)

Thus, it is incorrect for Maraziti to state that the Underlying Action terminated with a defense verdict. It concluded with a confidential settlement agreement, the terms of which were unknown to the trial court—and remain unknown to this court—due to Maraziti’s vigorous invocation of the mediation confidentiality statutes. Without such information, we cannot know whether Maraziti would have achieved a better outcome in the Underlying Action but for Griffin’s alleged failure to satisfy his professional and fiduciary obligations. And, because Maraziti had the burden of proving that he would have achieved a more favorable outcome, the trial court properly concluded that he failed to establish the essential elements of his legal malpractice and breach of fiduciary duty claims.

The Fraud Claim

The trial court found that Maraziti failed to prove his fraud claim because he personally participated in, and orchestrated, the making of the false statements about his expert witnesses during the Underlying Action.

Maraziti challenges the sufficiency of the evidence supporting this determination. His argument takes two forms. First, he claims substantial evidence did not support the court’s finding that he prepared the letters and legal filings containing false expert witness statements. Second, assuming he prepared the letters and legal filings, he asserts there was insufficient evidence to support a finding that he knew of his experts’ unavailability or unpreparedness when he prepared them. Neither argument is persuasive.

“ ‘ “[W]hen ‘a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ [Citations.]” [Citation.] [An appellant] raising a claim of insufficiency of the evidence assumes a “daunting burden.” [Citation.]’ [Citation.] The test ‘is simply whether there is substantial evidence in favor of the respondent. If this “substantial” evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld. As a general rule, therefore, we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing.’ ” (People v. Overstock.Com, Inc. (2017) 12 Cal.App.5th 1064, 1079.) “The usual meaning of ‘substantial evidence’ is ‘evidence that is “of ponderable legal significance,” “reasonable in nature, credible, and of solid value,” and “ ‘substantial’ proof of the essentials which the law requires in a particular case.” ’ ” (California Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 852.)

Turning to Maraziti’s first argument, we conclude there was substantial evidence that Maraziti prepared the letters and legal filings containing the false expert witness statements. On direct examination, Griffin testified that Maraziti “did all the writing, he did all the briefs, he wrote all the letters . . . he did every motion. He did everything.” Then, when questioned about the specific letters and legal filings containing the false statements at issue, Griffin testified that Maraziti prepared every one of them. The court found Griffin was credible and truthful when testifying about these issues. Griffin’s testimony was sufficient to establish that Maraziti prepared the pertinent letters and legal filings. (See Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201 [“The testimony of a single witness, even if that witness is a party to the case, may constitute substantial evidence.”].)

Maraziti contends the trial court should not have believed Griffin. He argues he was “more credible” than Griffin and, therefore, the court should have discredited Griffin’s testimony and credited his own testimony that he merely “assisted” Griffin in drafting “some” unspecific documents during the Underlying Action. Maraziti’s argument is unconvincing. “Venerable precedent holds that, in a bench trial, the trial court is the ‘sole judge’ of witness credibility. . . . The fact finder’s determination of the veracity of a witness is final.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582.) In short, the trial court credited Griffin—not Maraziti—on these issues, and it is not our role to second-guess the court’s credibility determinations.

As for Maraziti’s second argument, we conclude there was likewise substantial evidence to support a finding that he knew of the falsity of the statements contained within the letters and legal filings when he prepared them. When discussing Maraziti’s role in the Underlying Action, Griffin testified that Maraziti did “all the work” and he merely served as Maraziti’s “puppet[].” Griffin testified Maraziti “was aware of every little thing” going on in the case and that he was “part and parcel” of Griffin’s misdeeds. Griffin testified that Maraziti personally participated in telephone calls with the designated experts as well, which presumably gave Maraziti at least some indication whether the experts were willing and capable of testifying.

There was also documentary evidence showing that Maraziti learned of his expert witness problem at least one week before he prepared the letters and legal filings at issue. One week before King’s deposition date, Griffin’s assistant sent Maraziti an email that read as follows: “King just called back. . . . He said many things. 1.) he doesn’t want a[n] [expert retention] check; 2.) He might not be able to testify to help [sic]; 3.) He told [the expert witness referral service that referred him to Maraziti] that he could not do it; 4.) He never agreed to be an expert.” Maraziti responded with an email that read: “We’ll have to address this with a different expert if he is not willing to help. [Griffin] will have to call him.” This exchange establishes that Maraziti was aware of King’s unwillingness to testify, yet waited at least one full week before writing the letters in which he opined that Griffin had “just” learned about King’s unavailability. This evidence supported the court’s determination that Maraziti participated in, and orchestrated, Griffin’s misconduct.

The Breach of Contract Claims

Next, Maraziti contends the court erred by failing to rule on his fourth, fifth, and sixth causes of action for breach of contract. We disagree.

On the first day of trial, Maraziti’s counsel stated in open court that, “to make things simpler,” Maraziti was “willing to dismiss the fourth, fifth, and sixth cause[s] of action as to Mr. Griffin without prejudice so [he could] proceed just under the tort theories.” The court accepted the offer and stated: “Good. Fourth, fifth and sixth causes of action dismissed without prejudice from the [operative] complaint.” Then, after trial, the court noted in its statement of decision that the breach of contract “causes of action were dismissed at the time of trial.”

As the appellate record clearly demonstrates, the court did not fail to rule on Maraziti’s breach of contract claims. It dismissed them prior to trial. Further, there is no indication in the record that Maraziti sought to resuscitate his dismissed contract claims or amend his complaint to conform the pleadings to proof. Because Maraziti’s argument is premised on a mischaracterization of the record, we summarily reject his claim of error.

The Order Denying a New Trial

Maraziti’s final argument is that the court erred in denying his motion for a new trial by operation of law. This time, we agree with Maraziti.

Code of Civil Procedure section 660, subdivision (c) sets forth the time limitations on when a court may rule on a motion for a new trial. It states in part as follows: “Except as otherwise provided in [Code of Civil Procedure] [s]ection 12a . . . , the power of the court to rule on a motion for a new trial shall expire 75 days after the mailing of notice of entry of judgment by the clerk of the court . . . or 75 days after service on the moving party by any party of written notice of entry of judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move for a new trial. If the motion is not determined within the 75-day period, or within that period as extended, the effect shall be a denial of the motion without further order of the court.” (Code Civ. Proc., § 660, subd. (c).) Any court order purporting to rule on a motion for a new trial after the expiration of the 75-day period is beyond the jurisdiction of the court and void. (See Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 899.)

After the trial court entered judgment, the clerk of the court did not mail notice of entry of judgment and no party served written notice of entry of judgment on the moving party (Maraziti).[7] Thus, the 75-day jurisdictional deadline for the court to rule on the motion for a new trial began running on January 4, 2021, when Maraziti filed his notice of intention to move for a new trial. (Code Civ. Proc., § 660, subd. (c).) The trial court denied the motion for a new trial by operation of law on February 25, 2021, 52 days after the jurisdictional clock was triggered. Because the 75-day window to rule on the motion for a new trial had not expired when the court denied the motion by operation of law, the court’s ruling was erroneous.

Our conclusion that the court erred in denying the motion for a new trial by operation of law does not, standing alone, permit us to reverse the judgment. Rather, Maraziti must establish that the erroneous ruling prejudiced him. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160–1161; Code Civ. Proc., § 475 [“No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial”].) “In reviewing an order denying a motion for a new trial, we review the entire record, including the evidence, and independently determine whether any error was prejudicial.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1018.)

Maraziti makes no argument that the erroneous denial of the motion for a new trial was prejudicial to him. Nor can we discern prejudice based on our own independent review of the record. Indeed, nearly all of the arguments Maraziti presented in his motion for a new trial were identical to the ones he raised on appeal—arguments we have rejected on the merits. To the extent Maraziti’s new trial arguments were duplicative of his appellate arguments, he has not established, to a reasonable probability, that he would have achieved a more favorable result but for the erroneous ruling denying his motion for a new trial by operation of law. (Weisenburg v. Molina (1976) 58 Cal.App.3d 478, 486 [finding no prejudice from erroneous denial of new trial motion based on lack of jurisdiction where appellate court considered merits of motion by way of appellant’s contentions on appeal].)

Maraziti asserted just two arguments in his motion for a new trial that have not been raised, and rejected by us, on appeal. First, he argued that the trial court erred in permitting Grebing (Rathbone’s former attorney) to testify at trial. He claimed Grebing was not a “percipient witness” to the Gray’s Landing or Alpine Village Resorts transactions; thus, his testimony was irrelevant and hearsay. Even if the trial court had considered this argument, it likely would not have changed the result below. Maraziti did not identify any specific testimony that was inadmissible, nor did he show that he objected to the allegedly problematic testimony. On that basis alone, the trial court would have been justified in rejecting Maraziti’s admissibility argument. Further, the statement of decision indicated that the court gave “no weight” to most of Grebing’s testimony, so it is highly unlikely the admission of the testimony had any impact on the outcome of the case.

Second, Maraziti argued that a new trial was warranted because the trial court erroneously granted judicial notice of the factual findings that were rendered in the statement of decision from the Underlying Action. There is no merit to this argument. The court did not err when it noticed the findings from the Underlying Action, given that the findings were contained within judicially-noticeable court records. (Evid. Code, § 452, subd. (d); see Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658 [“ ‘ “The court may in its discretion take judicial notice of any court record in the United States. [Citation.] This includes any orders, findings of facts and conclusions of law, and judgments within court records.” ’ ”].) Further, the court correctly took judicial notice of the existence of the factual findings, not the truth of the factual findings. (Richtek, at p. 658.) Because Maraziti’s judicial notice argument was not meritorious, the trial court’s failure to consider it on the merits could not have altered the outcome below.

In sum, Maraziti has not established that he suffered prejudice from the trial court’s order denying his motion for a new trial by operation of law. In the absence of such prejudice, reversal is unwarranted.

Transmittal of Opinion to State Bar

The conclusions we reach today do not exonerate Griffin or sanction his inexcusable misconduct. At minimum, Griffin’s knowing filing of legal briefs and declarations containing false statements appears to evince a flagrant and indefensible disregard of the duty of candor he owed to the court in the Underlying Action. (See Rules Prof. Conduct, rule 3.3(a) [“A lawyer shall not: [¶] . . . knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; [¶] . . . [¶] [or] offer evidence that the lawyer knows to be false.”]; see also Bus. & Prof. Code, § 6068, subd. (d) [“It is the duty of an attorney . . . [¶] . . . [¶] . . . never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”].)

To ensure these apparent lapses in ethical and professional judgment receive the scrutiny they deserve, we direct the clerk to send copies of this opinion to the State Bar of California, so it may conduct its own evaluation of the professional conduct involved and determine whether to discipline Griffin. (See In re Marriage of Wagoner (1986) 176 Cal.App.3d 936, 943 [ordering copy of judicial opinion forwarded to the State Bar of California for its own evaluation of attorney’s conduct]; accord Bus. & Prof. Code § 6086.7, subd. (a)(2) [requiring court to notify the State Bar of California when a modification or reversal of a judgment is based on the misconduct, incompetent representation, or willful misrepresentation of an attorney].)

DISPOSITION

The judgment is affirmed. The parties are to bear their own appellate costs. The clerk is directed to send copies of this opinion to the State Bar of California and Andrew H. Griffin, III.

McCONNELL, P. J.

WE CONCUR:

O’ROURKE, J.

DATO, J.

[1] In his opening appellate brief, Maraziti states without citation to the record that the court precluded Porter from testifying because it found that he did not form his opinions about the case until after the date of his deposition. We disregard this unsubstantiated factual assertion. (Harshad & Nasir Corp. v. Global Sign Systems, Inc. (2017) 14 Cal.App.5th 523, 527, fn. 3 (Harshad) [“We are not required to scour the record in search of support for a party’s factual statements and may disregard such unsupported statements.”].)

[2] In his appellate brief, Griffin states without citation to the record that “Maraziti received a substantial sum of money” from the settlement. Maraziti disputes this claim, arguing—again without citation to the record—that the settlement had “de minimis” value to him. We disregard these unsupported assertions (Harshad, supra, 14 Cal.App.5th at p. 527, fn. 3), and we admonish counsel for both parties to refrain from discussing matters that are not included in the record. (Cal. Rules of Court, rule 8.204(a)(1)(C) [each brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears”]; see also id., rule 8.204(a)(2)(C) [appellant’s opening brief must “[p]rovide a summary of the significant facts limited to matters in the record”].)

[3] Maraziti filed the original complaint both as an individual and derivatively on behalf of Idaho Mountain and Signature. Due to the derivative nature of the suit, Maraziti named his companies as nominal defendants; however, as noted, they subsequently filed their own cross-complaint against Griffin. After they filed their cross-complaint, Maraziti amended his complaint to sue Griffin solely in an individual capacity.

[4] The mediation confidentiality statutes “broadly provide[] for the confidentiality of things spoken or written in connection with a mediation proceeding. With specified statutory exceptions, neither ‘evidence of anything said,’ nor any ‘writing,’ is discoverable or admissible ‘in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which . . . testimony can be compelled to be given,’ if the statement was made, or the writing was prepared, ‘for the purpose of, in the course of, or pursuant to, a mediation . . . .’ ” (Cassel v. Superior Court (2011) 51 Cal.4th 113, 117 (Cassel), quoting Evid. Code, § 1119, subds. (a), (b).)

[5] Maraziti argues that Griffin easily could have admitted the settlement agreement into evidence under seal. The record belies this argument, given that the mediation confidentiality statutes barred admission of the settlement agreement—even under seal. The argument is irrelevant in any event, given that Maraziti—not Griffin—bore the burden of showing that he would have achieved a more favorable outcome in the Underlying Action but for Griffin’s deficient performance.

[6] Maraziti claims the court also erred to the extent it required him to prove damages with “legal certainty” for his breach of fiduciary duty claim, given that courts typically invoke that language only when they are discussing legal malpractice claims. We conclude the error, if any, was harmless. Because “legal certainty” simply refers to the certainty required by law, any use of that language when discussing the breach of fiduciary duty claim was surely harmless error, if in fact it was error at all.

[7] Maraziti served notice of entry of judgment on Griffin. However, Maraziti’s service on Griffin did not trigger any jurisdictional deadline because the deadline relating to service by a party is triggered only when service is made on the “moving party” (Code Civ. Proc., § 660, subd. (c)), and Maraziti—not Griffin—was the moving party for purposes of the new trial motion. (See Maroney v. Iacobsohn (2015) 237 Cal.App.4th 473, 480–481.)