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November 30, 2010


Appeal from a judgment of the Superior Court of the County of Los Angeles, Ronald M. Sohigian, Judge. Affirmed in part and dismissed in part. (Los Angeles County Super. Ct. No. BC356788)

The opinion of the court was delivered by: Mosk, J.



Michael Silver (Silver) filed a cross-complaint against Pacific American Fish Co., Inc., Paul Huh, and Peter Huh (collectively Pacific) alleging claims arising out of an asset purchase agreement and a related employment agreement. Pacific responded by asserting, inter alia, lack of standing and judicial estoppel, each based on Silver's prior bankruptcy proceeding. The trial court bifurcated the trial on the standing and estoppel defenses and ruled in Pacific's favor. Silver appeals from the adverse judgment on his cross-complaint.

A. Award of Attorney Fees

In the published portion of the opinion, we hold that Silver's purported notice of appeal from the postjudgment order awarding Pacific attorney fees is untimely, and that his notice of appeal from the judgment does not encompass the separately appealable postjudgment order awarding attorney fees. Therefore, we do not have jurisdiction over Silver's challenge to the order awarding attorney fees to Pacific.

B. Other Contentions*fn2

In rejecting Silver's other contentions, we hold that: (i) the trial court did not abuse its discretion in denying Silver's motion for new trial; (ii) the trial court correctly ruled that Silver lacked standing to pursue his cross-claims and was judicially estopped from pursuing those claims because he failed to list them in his bankruptcy proceeding; (iii) Silver did not move the trial court for additional time to reopen the bankruptcy proceeding and thus forfeited the issue of whether he should have been granted such time; (iv) the trial court correctly ruled that the personal guaranty and waiver of defenses by the individual cross-defendants had terminated because of full performance by Pacific American (v) the trial court did not violate the one judgment rule by entering judgment on Silver's cross-complaint because Pacific American had dismissed its cross-complaint and no other issues were pending between Silver and Pacific American; (vi) and the trial court correctly ruled that Silver was not the prevailing party on Pacific's cross-complaint. We therefore affirm the judgment.*fn3


A. The Asset Purchase and Silver's Bankruptcy

In June 2004, Silver sold to Pacific American the assets of his food distribution business, M&M Foods, Inc. The sale resulted from tax and mail fraud convictions Silver suffered, and it allowed him to use the $8,000,000 sale proceeds to repay partially the IRS and certain trade creditors. The parties memorialized their transaction in an asset purchase agreement that included a five-year employment agreement between Pacific American and Silver and a personal guaranty agreement between M&M Foods, Inc. and Peter and Paul Huh, principals of Pacific American.

Three months after Silver's employment agreement commenced, Pacific American terminated him because of his alleged illegal conduct. In November 2004, Silver and Pacific American entered into termination and modification agreements in which they released all claims against each other and terminated a non-competition clause in Silver's employment agreement.

In July 2005, Silver filed a voluntary Chapter 7 bankruptcy petition in federal court. Although Silver listed on the required asset disclosure form "[d]ebtor's interest in collections obtained on outstanding accounts receivable from former business activities" with an "unknown" value, he did not list any claims or causes of action against Pacific. During the bankruptcy proceeding, Silver appeared at two creditor meetings and was examined under oath concerning his assets. In April 2006, the bankruptcy court issued a discharge order and closed the bankruptcy estate.

B. The Litigation

In August 2006, Silver's brother, Marvin, sued Pacific and Four Seasons Fine Foods in state court. Pacific American responded by filing a cross-complaint against Marvin and Silver. Although Pacific American did not serve its cross-complaint on Silver, he nevertheless answered and filed his own cross-complaint against Pacific alleging, inter alia, that Pacific had breached the asset purchase and employment agreements. Silver's operative third amended cross-complaint asserted causes of action for fraud in the inducement, intentional interference with economic advantage, wrongful termination, rescission, cancellation of instrument, and breach of contract against Pacific.

In June 2008, the trial court held a bifurcated trial on two of Pacific's affirmative defenses to Silver's cross-complaint--standing and judicial estoppel. Following a three-day bench trial, the trial court ruled in favor of Pacific and ordered Pacific to prepare a statement of decision. Two weeks later in early July 2008, Pacific American filed a voluntary dismissal without prejudice of its cross-complaint against Silver.

Following trial, but before the entry of a statement of decision or a judgment on Silver's cross-complaint, Silver filed motions to disqualify Pacific's trial counsel and to reopen evidence that the trial court denied. In December 2008, the trial court entered a statement of decision and a judgment dismissing Silver's cross-complaint against Pacific. Silver then filed a motion for new trial and a motion to determine the prevailing party on Pacific American's cross-complaint and to fix amount of attorney fees. The trial court denied both motions.

C. The Award of Attorney Fees to Pacific

On February 3, 2009, Pacific filed a motion for attorney fees and the hearing on that motion was thereafter continued to March 26, 2009. On February 25, 2009, prior to the hearing on Pacific's attorney fees motion, Silver filed a notice of appeal that specified, inter alia, that he was appealing from the trial court's order on Pacific's motion for attorney fees, a motion on which the trial court had yet to rule. On March 26, 2009, over a month after Silver filed his notice of appeal, the trial court heard and granted, in part, Pacific's motion for attorney fees and costs.


A. Motion for New Trial

1. Background

Following the trial court's judgment dismissing his cross-complaint against Pacific, Silver filed a motion for new trial. The motion asserted five grounds for a new trial under Code of Civil Procedure section 657:*fn5 (1) irregularity in the proceedings based on attorney misconduct; (2) accident or surprise; (3) newly discovered evidence; (4) insufficiency of the evidence; and (5) errors of law.

The attorney misconduct claim was based on three discrete acts allegedly taken by Pacific's trial attorneys: (1) concealing the transcripts of two bankruptcy court creditor meetings held pursuant to 11 U.S.C. section 341(a) (341(a) transcripts);*fn6 (2) obtaining a trial court finding that Silver's former bankruptcy attorney negligently failed to schedule certain claims in the bankruptcy proceeding, while simultaneously representing that same bankruptcy attorney in an unrelated matter; and (3) threatening and intimidating the trustee in Silver's bankruptcy proceeding prior to entry of judgment in this matter. The trial court heard oral argument on the new trial motion and denied it without stating reasons.

2. Contentions

On appeal, Silver challenges the trial court's denial of his motion for new trial, arguing that attorney misconduct and newly discovered evidence warranted a new trial. The misconduct claim is based on six alleged acts of misconduct: (1) the alleged concealment by Pacific's attorneys of the 341(a) transcripts before, during, and after trial; (2) the alleged submission of a "perjured" declaration by one of Pacific's attorneys in opposition to the motion to disqualify; (3) the alleged procurement by Pacific's attorneys of Silver's attorney-client privileged information and documents; (4) the alleged reliance on the "perjured" declaration in opposition to the motion for new trial; (5) the alleged filing of a cross-complaint against Silver that Pacific's attorneys later admitted they never should have filed; and (6) alleged threats made to and intimidation of the bankruptcy trustee by Pacific's attorneys.

The newly discovered evidence ground is based on Silver's belated discovery of the 341(a) transcripts. According to Silver, the concealment of those transcripts by Pacific's attorneys prevented him from introducing the transcripts into evidence at trial and excused his belated discovery of that testimony.

As explained below, four of the six alleged acts of misconduct were not presented to the trial court in support of the motion for new trial. As a result, the assertions of misconduct based on those four acts--as grounds for a new trial--have been forfeited on appeal. As to the two alleged acts of misconduct that Silver did present to the trial court in his new trial motion, the trial court did not abuse its discretion in denying the motion based on those alleged acts. And, because the newly discovered evidence ground is based upon the belated discovery of the 341(a) transcripts that were a matter of public record presumptively available to Silver, the trial court did not abuse its discretion in denying the new trial motion on that ground.

3. Section 657 and Standard of Review

"The grounds upon which a new trial may be granted are statutory." (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899.) Section 657 provides: "The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. [¶] 3. Accident or surprise, which ordinary prudence could not have guarded against. [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. [¶] 5. Excessive or inadequate damages. ¶] 6.Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application."

Generally, rulings on motions for new trial are reviewed for abuse of discretion. "We are mindful of the fact that a trial judge is accorded a wide discretion in ruling on a motion for new trial and that the exercise of this discretion is given great deference on appeal. (See Malkasian v. Irwin [(1964)] 61 Cal.2d 738, 747; 6 Witkin, Cal. Procedure (2d ed. 1971) § 293, pp. 4278-4279.) However, we are also mindful of the rule that on an appeal from the judgment it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party (see Code Civ. Proc., § 906), including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial. (Deward v. Clough (1966) 245 Cal.App.2d 439, 445 [54 Cal.Rptr. 68]; Wilkinson v. Southern Pacific Co. (1964) 224 Cal.App.2d 478, 483-484 [36 Cal.Rptr. 689]. See Tobler v. Chapman [(1973)] 31 Cal.App.3d 568, 578-579.)" (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872.)

"'While the concept "abuse of discretion" is not easily susceptible [of] precise definition, the appropriate test has been enunciated in terms of whether or not the trial court exceeded '"the bounds of reason, all of the circumstances before it being considered. . . ."' [Citations.]' [Citation.] 'A decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not [to] be set aside on review.' [Citation.]" (Schall v. Lockheed Missiles & Space Co. (1995) 37 Cal.App.4th 1485, 1488, fn. 1.)

4. Misconduct

a. Concealment of 341(a) transcripts

In August and September 2005, Silver appeared at the creditors meetings held in his bankruptcy proceeding and was examined under oath by the trustee and counsel for certain creditors. That testimony was electronically recorded.

Prior to trial, Silver propounded contention discovery seeking, inter alia, all documents upon which Pacific was basing its contentions in defense of Silver's cross-complaint. Pacific did not produce the 341(a) transcripts in response to that document request. During opening statements, however, Pacific's attorney stated, "We'll also establish that at the 341(a) hearing, [Silver] admitted he had no accounts receivable . . . owing to him." Notwithstanding that statement, Pacific thereafter failed to submit the 341(a) transcripts as evidence during trial and, after trial, when Silver claims to have ...

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