Filed 8/14/26 Leonard, Dicker & Schreiber v. Azad CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
LEONARD, DICKER & B344387
SCHREIBER LLP,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No.
20STCV14465)
v.
JACK AZAD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephanie Bowick, Judge. Affirmed.
The Fox Firm and Melissa J. Fox; Law Offices of Elliott N.
Tiomkin and Elliott N. Tiomkin for Defendant and Appellant.
Leonard, Dicker & Schreiber and Richard C. Leonard for
Plaintiff and Respondent.
________________________
Defendant and appellant Jack Azad appeals from a
judgment entered in favor of plaintiff and respondent law firm
Leonard, Dicker & Schreiber LLP (LDS), in this action for
payment of attorney fees incurred during representation of Azad
in an underlying action for breach of a real estate purchase
agreement. On appeal, Azad contends: (1) the trial court’s
instruction in response to a question by the jury was incomplete
and misleading; and (2) the evidence established Azad’s
affirmative defenses of professional negligence and offset as a
matter of law. Specifically, Azad asserts LDS knew or should
have known by September 2016 that there was no proof of
written verification of funds as required by the purchase
agreement, and therefore, LDS breached a duty of care to tell
Azad that there was virtually no chance of winning his breach of
contract action against the seller.
We conclude Azad invited the purported instructional error
by submitting the instructions at issue, waived any challenge to
the court’s response by failing to object or propose additional
language, and in any event, the trial court’s response was
accurate. In addition, we find substantial evidence supports the
jury’s finding that LDS did not breach the standard of care.
Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Purchase Agreement
The seller, Peter Bennett, owned a residential property in
Beverly Hills that he had transferred to his trust. On
2
January 11, 2015, the City of Beverly Hills issued a notice of
substandard building, order to vacate, and order to abate
substandard building, which listed several substandard
conditions, including lack of utility services, water damage,
rodent infestation, and hazardous, unsanitary premises due to
hoarding conditions, dog excrement, and rat droppings. The
order to vacate stated that it was a misdemeanor to enter or
occupy the structure in violation of the notice. To repair or
remove the structure, a person must obtain approval from the
City and wear protective closing. The City ordered the owner to
abate various substandard conditions within a specified number
of days. On February 7, 2015, Bennett listed the property for sale
for $3.75 million with Monty Abramov, a licensed real estate
agent with Rodeo Realty, Inc.
Azad saw the for-sale sign when he drove by the property.
He did some research, called a friend who works in real estate,
and decided to make an offer of $3.8 million.
On February 9, 2015, Abramov and Rodeo Realty, acting as
a dual agent for buyer and seller, prepared a purchase agreement
in which Azad agreed to purchase the property for $3.8 million.
The purchase agreement stated that escrow was to close ten days
after acceptance. A box was checked stating it was an all cash
offer, no loan was needed to purchase the property, and
furthermore, “Written verification of sufficient funds to close this
transaction IS ATTACHED to this offer or [unchecked box] Buyer
shall, within 3 (or ______) Days After Acceptance, Deliver to
Seller such verification.”
A note was added under “other terms” that the “[p]roperty
is a tear down, SOLD AS IS.” Another paragraph of the
agreement stated the property was sold “AS-IS,” subject to Azad’s
3
investigation rights. The purchase agreement provided Azad a
period of 17 days to conduct any inspections, investigations,
surveys, and other studies. The seller agreed to make the
property available for all of buyer’s investigations. A
handwritten addendum to the agreement stated, “Seller needs 3-
4 weeks after City of Beverly Hills approves the seller to enter
the property to remove their belongings. After removal of items
seller will deliver keys to buyer.”
Paragraph 14.C. (2) provided the seller with the right to
cancel the agreement as follows in pertinent part: “Seller, after
first delivering to Buyer a [California real estate form Notice of
Buyer to Perform], may cancel this Agreement if, by the time
specified in this Agreement, Buyer does not take the following
action(s): (i) Deposit funds as required . . . (iv) Deliver
verification, or a satisfactory verification if Seller reasonably
disproves of the verification already provided, as required by [the
paragraph requiring written verification of sufficient funds].”
Paragraph 14.D. provided that a notice to buyer to perform
or notice to seller to perform must give the other party at least
two days after delivery, or until the time specified in the
applicable paragraph, whichever occurred later, to take the
applicable action.
On February 11, 2015, Azad and Bennett executed the
purchase agreement. Bennett’s signature and initials were
handwritten, including a signature on the addendum. Azad’s
signature and initials throughout the agreement were digital,
and a handwritten space on the addendum for his signature was
left blank. Azad deposited $114,000 into escrow.
On February 13, 2015, Bennett’s two sons succeeded him as
co-trustees of his trust (hereinafter collectively the seller). The
4
seller did not send Azad a notice to buyer to perform concerning
the written verification of sufficient funds. On February 26,
2015, the seller served a demand to close escrow. Azad sent a
request for repair proposing a price reduction and an extended
45-day escrow, which the seller rejected. On March 5, 2015, the
seller sent a cancellation of contract to Azad.
B. Breach of Contract Litigation and Representation by
LDS
On March 9, 2015, the law firm Grimm & Scholnick filed
the underlying breach of contract action on Azad’s behalf against
the seller. Azad alleged the purchase agreement provided 17
days to perform investigations of the condition of the property
and obtain a written appraisal. The seller’s agent did not deliver
the order to vacate to Azad until February 12, 2015, and had not
previously informed Azad that he would not be able to conduct
investigations of the property condition. Despite requests for
access, Azad had not been able to conduct his investigations of
the property through no fault of his own.
The matter was stayed to pursue arbitration (the Bennett
Arbitration). The seller also filed a cross-complaint for breach of
contract, reformation of the purchase agreement to remove any
right of inspection for the buyer, and fraud based on Azad’s
representation that no loan was needed to purchase the property.
Azad substituted attorney Elliott Tiomkin in place of the Grimm
firm.
In May 2016, Azad entered into a retainer agreement with
LDS, agreeing to pay hourly rates and costs. LDS associated in
as cocounsel with Tiomkin in the Bennett Arbitration.
5
On June 13, 2016, the seller’s attorney sent a settlement
offer to LDS attorney Steven Schuman proposing a mutual
release of claims, Azad’s withdrawal of a lis pendens on the
property, release of Azad’s escrow deposit of $114,000 back to
him, and each party to pay their own attorney fees. The seller
asserted Azad’s claim that he was not allowed to investigate the
property was undercut by facts that he knew there was a notice
of abatement issued for the property, the purchase agreement did
not contemplate a right to investigate the property (because of
the notice of abatement), Azad did not formally request
permission from the City to investigate the property, Azad did
not request a professional inspection of the property, and Azad
did in fact personally investigate the property, not to mention
that Azad breached the agreement by failing to deliver written
verification of sufficient funds.
On June 15, 2016, LDS attorney Steven Schuman wrote an
email to Azad and Tiomkin to convey the settlement offer.
Schuman stated, “This case could go either way, as we’ve
discussed all along. Bennett clearly has the larger downside if he
loses, however. Your exposure is the deposit plus their fees (and
your own, of course).”
On July 8, 2016, following a telephone conversation,
Schuman wrote to Azad and Tiomkin that he wanted to amend
one of Azad’s interrogatory responses to explain how Azad was,
and still is, able to provide funds to close escrow. The amended
response would state, in pertinent part: “The total purchase
price was $3.8 [million]. I planned to put down a total of $2.3
[million], of which $XX was mine and $YY belonged to my cousin
______. $114k of that money was, and remains, in escrow. The
balance of the down payment was in the following bank accounts
6
as of February 2015: ____________. [¶] The balance of
approximately $1.5 [million] was to come from a hard money loan
from ___________. The loan was approved, and ready to close on
five days’ notice.” Schuman noted that Azad’s cousin and the
lender would be witnesses in the case. He added, “As I’ve said all
along, it is crucial to show that you were ready, willing and able
to pay the full purchase price - - both in February 2015, and now.
Otherwise, we have almost no hope of winning. It is possible to
delay providing the information, or to be coy and provide as little
as possible, but I recommend against that. Showing that you
could pay the money makes your case look stronger . . . . It might
lead to settlement, among other things.”
On September 12, 2016, LDS filed an action on Azad’s
behalf against Abramov, who had acted as a dual agent in the
property transaction, and his employer Rodeo Realty (the Rodeo
Action). The parties in the Rodeo Action ultimately settled with
Azad.
On September 19, 2016, Schuman wrote an email to Azad
and Tiomkin stating that they should discuss their settlement
strategy. He added, “There is substantial risk for both sides in
[the Bennett Arbitration]. It could go either way at trial. I’m
more than happy to keep pushing down the road to trial, and to
try the case, but it is important that we keep our eye out for
settlement possibilities[] too.”
On December 2, 2016, Azad obtained a loan commitment
letter from Hooshang “Sean” Namvar of Equimax Mortgage &
Loan to show that he was ready and willing to make the loan
required.
7
C. Arbitration and Final Award
Azad testified in the arbitration proceedings that he faxed
proof of funds to Abramov, but it was not received, so Abramov
said to bring it to their meeting. At the meeting, Azad provided
bank statements to Abramov showing that he had $2.3 million in
funds available in bank accounts in February 2015. Abramov put
the documents in a folder, but never said Azad’s documents were
not sufficient. Azad planned to get a loan from Namvar for the
balance of the purchase price. Azad testified at the arbitration
that Namvar was very interested in making the loan for the
property. Azad did not pursue the loan from Namvar because the
following day, the inability to inspect the property came up.
During arbitration, Namvar testified that he did not meet
with Azad about the property until a year after the purchase
agreement had been executed. Azad did not request a loan
commitment letter in 2015. Namvar generally requires 10 to 14
days to fund a loan. However, he would have given Azad a
commitment letter in 2015 if Azad had applied.
There was testimony in the arbitration proceeding that it
was Abramov who checked the box for an all cash offer, including
the representation about written verification of funds, after Azad
had signed the purchase agreement.
On July 11, 2017, the arbitrator issued the final arbitration
award in the Bennett Arbitration. The arbitrator had “serious
doubts” about Abramov’s credibility as to some of his testimony,
but accepted Abramov’s testimony that in two pre-offer telephone
conversations with Azad and/or Azad’s friend, Abramov discussed
the order to vacate the property, which had been factored into the
8
asking price for the property. The arbitrator noted that
considering the requirements for access and remediation in the
City’s order to vacate, if a thorough interior inspection was
important to Azad, he needed to have immediately requested an
extension of escrow to coordinate access issues with the City.
Azad had testified he was shocked to review the order to vacate
because Abramov never told him that the property could not be
inspected. He also testified that it would be “outrageous” to
require him to address the remediation issues in the order to
vacate in order to allow access to the interior prior to escrow
closing. The arbitrator concluded Azad’s claim that it was the
seller’s obligation to remediate issues raised by the City to allow
access was disingenuous in light of the “As-Is” nature of the sale
and time being of the essence. Azad was not entitled to extend
escrow until the issues in the order to vacate were addressed by
the seller without a mutual agreement. Azad’s remedy was to
proceed with closing or cancel the transaction.
The arbitrator found Azad failed to prove that the seller
provided no inspection opportunity. The issues were whether
inspection was requested, whether access was provided, and
whether Azad properly communicated displeasure with the
inspection opportunity provided. If Azad was unsatisfied with his
access to inspect the property or the scope of the inspection that
he conducted around the perimeter of the property on
February 20, 2015, then under the terms of the purchase
agreement, he was required to serve a notice to perform on the
seller, which he did not do. His only recourse afterward was to
cancel the agreement.
With respect to Azad’s breach of contract claim, the
arbitrator found Azad failed to perform his own obligations under
9
the purchase agreement. Azad did not have $3.8 million to
timely close escrow. In Namvar’s testimony, he expressed only a
general interest in potentially loaning funds against the property,
which was insufficient to prove Azad’s ability to purchase the
property. The loan commitment from Namvar was two years too
late. Inability to pay the purchase price was a material breach of
the contract at the outset.
Azad also had not shown the seller breached the contract.
He viewed the perimeter of the property on February 20, 2015,
and a real estate expert testified that terms like “inspection” and
“investigation” do not have set definitions. The arbitrator
concluded Azad failed to request any specific type of inspection
until escrow was nearly closed. In light of information that the
arbitrator found had been provided, Azad was aware of the
difficulties concerning inspection. If the inspection opportunity
he received was inadequate, he could have served a demand to
perform, but he did not. He never took steps to arrange a
professional inspection. He simply served a request for repair,
after the closing date of the transaction. The seller did not
commit any material breach, so Azad could not prove his breach
of contract causes of action.
On the seller’s cross-claim for breach of contract, the trial
court found Azad breached the contract by failing to deposit $3.8
million into escrow by February 23, 2015. The arbitrator also
concluded Azad falsely represented that proof of funds was
included with the purchase agreement. The seller provided
testimony that the transaction would have been completed if
Azad had deposited $3.8 million in escrow. Based on finding in
favor of the seller on the seller’s breach of contract cross-claim,
the arbitrator awarded $114,000 in liquidated damages against
10
Azad. As a result of these findings, it was unnecessary to address
the seller’s cross-claim for reformation.
On the seller’s fraud cross-claim, the arbitrator concluded
Azad’s statement that he did not need a loan to purchase the
property was a misrepresentation, because when he signed the
agreement, he did not possess $3.8 million and needed a loan.
The arbitrator found, however, that the seller did not meet its
burden of proof to show that Azad knew, or recklessly
misrepresented in disregard of the truth, that he would have
been able to perform in the escrow period. Therefore, the
arbitrator found against the seller on the fraud cross-claim and
denied the seller’s request for punitive damages.
The arbitrator concluded the seller was the prevailing
party entitled to attorney fees and costs.
D. The Instant Collections Action
Azad paid a portion of the bills received from LDS, but not
the full amount. On January 29, 2021, LDS filed an action
against Azad for breach of contract, open book account, and
quantum meruit, seeking payment in excess of $277,156 for
unpaid attorney fees and costs, plus interest. Azad filed an
answer alleging affirmative defenses based on professional
negligence and an offset to any award of damages.
A jury trial began on July 31, 2024. Azad presented
testimony from attorney fees expert John O’Connor. O’Connor
opined that by July 2016, Schuman knew or should have known
that there was no written verification of funds as required by the
purchase agreement. By September 2016, after interviewing
Azad and speaking with Namvar about the requirements for a
11
loan commitment, Schuman owed a duty of due care to tell Azad
that there was virtually no chance of winning the arbitration.
There had been a material breach of a term of the purchase
agreement, so the seller had no obligation to pass title to Azad. A
reasonable attorney in similar circumstances should have said
there was a serious problem with the case and there was
essentially no chance or the slimmest of chances to win the case.
O’Connor admitted the purchase agreement was a little
ambiguous about the timing to provide a written verification of
funds. The purchase agreement said written verification of funds
was attached, but then there was a box that could be checked off,
which was not checked off, that said “or within three days or
blank days after that.”
Any finding by the arbitrator that Azad lacked credibility
did not affect O’Connor’s opinion, because the lack of written
verification of funds was a material breach. In forming his
opinion, O’Connor did not review the reporter’s transcript of the
arbitration. He also did not review the depositions that were
taken in the current matter.
O’Connor agreed that the seller was equally bound by the
purchase agreement. He acknowledged a paragraph of the
purchase agreement required the seller to deliver a notice to
perform to Azad before the seller could cancel the agreement for
failing to take certain actions, including failing to provide proof of
funds. O’Connor did not know if there was testimony during the
arbitration about whether the seller had delivered a notice to
perform to Azad because he did not read the arbitration
testimony.
O’Connor admitted that the agreement generally provided
that the seller had a right to cancel the agreement in certain
12
situations only if there had been a notice to perform served on the
buyer. But O’Connor stated the seller did not have to comply
with the contract by sending a notice to perform once Azad
materially breached the contract by failing to provide proof of
funds.
LDS’s attorney pointed out that the form notice to buyer to
perform states the seller is giving notice to the buyer to remove
the specified contingency and take the specified contractual
action, including “all cash verification.” O’Connor agreed the
requirement to provide proof of funds could be specified in a
notice to buyer to perform. LDS’s attorney pointed out on the
form, “In fact, if you look under contractual action, paragraph N,
it says, ‘all cash verification,’ paragraph 3-C?” O’Connor
responded, “Okay. There you are. I agree.” O’Connor
acknowledged that there was no notice provided to Azad about
proof of funds, only a notice to provide the funds required to close
the transaction.
O’Connor understood that Azad claimed to have provided
documents about proof of funds to Abramov. O’Connor also
considered it to be a grey area whether proof of a loan
commitment was the same as proof of funds.
In O’Connor’s view, it was irrelevant that Azad was not
aware the purchase agreement required proof of funds to be
attached and only learned about the requirement later, or that
Azad wanted to inspect the property before paying $10,000 for
the loan commitment letter from Namvar. The issue was
whether he should have been advised in his subsequent litigation
that he had no chance of winning because he did not comply with
the contract term by attaching a written commitment letter as
proof of funds.
13
O’Connor was not aware of any of the conversations
between Schuman and Azad about whether proof of funds had
been attached to the contract. O’Connor was not aware whether
the firm that filed the original lawsuit against the seller believed
the case was unwinnable because there was no proof of funds. He
never discussed with attorney Tiomkin, who was the sole
attorney representing Azad for nine months, whether Tiomkin
advised Azad that the case was unwinnable.
O’Connor could not remember whether he read the seller’s
cross-complaint. O’Connor admitted that even if Azad dismissed
his action, the seller would have had to pursue the cross-claims to
be entitled to claim Azad’s deposit from the escrow.
O’Connor additionally testified that the arbitrator’s
findings in the Bennett Arbitration made the Rodeo Action not
worth pursuing and LDS should have advised Azad to get out of
that action as well.
O’Connor believed LDS’s hourly rate was market rate, and
he did not look for any errors in LDS billing statements. His
testimony was simply that there should not have been any
charges after September 2016.
Attorney Kevin Dicker, who performed work on Azad’s
matters for LDS, testified that the attorneys involved thought the
Rodeo Action “was a strong case. Especially in light of what had
happened at the arbitration. . . . The arbitrator made comments
that Mr. Abramov was the real, you know, was a real bad actor
here. That he had conflicts of interest. That he wasn’t informing
both sides of what was really going on. . . . [¶] . . . [I]t was better
than 50 percent. Maybe 60, 70 percent, maybe 75 percent of
winning that second action against Abramov and Rodeo.”
14
E. Instructions, Jury Question, and Judgment
The attorneys for both parties confirmed the final set of
jury instructions were acceptable, subject to specific objections
that had been made during discussions.
The parties submitted a joint list of CACI jury instructions
which included CACI No. 219. The court instructed the jury on
expert witness testimony in the language of CACI No. 219 as
follows: “During the trial you heard testimony from expert
witnesses. The law allows an expert to state opinions about
matters in the expert’s field of expertise even if the expert has
not witnessed any of the events involved in the trial. You do not
have to accept an expert’s opinion. As with any other witness, it
is up to you to decide whether you believe the expert’s testimony
and choose to use it as a basis for your decision. You may believe
all, part, or none of an expert’s testimony. In deciding whether to
believe an expert’s testimony, you should consider: [¶] (a) The
expert’s training and experience; [¶] (b) The facts the expert
relied on; and [¶] (c) The reasons for the expert’s opinion.”
In addition, Azad requested CACI No. 600 on the standard
of care. The trial court instructed the jury on the standard of
care in the language of CACI No. 600 as follows: “A lawyer is
negligent if he or she fails to use the skill and care that a
reasonably careful lawyer would have used in similar
circumstances. This level of skill, knowledge, and care is
sometimes referred to as ‘the standard of care.’ [¶] You must
determine the level of skill and care that a reasonably careful
lawyer would use in similar circumstances based only on the
testimony of the expert witnesses who have testified in this case.”
15
During deliberations, the jury sent out the following
written question: “With respect to [Azad’s] Special Jury
Instruction 5, [CACI No.] 600 Standard of Care, paragraph two,
in reference to ‘testimony of the expert witnesses’ are we to
assume that this refers only to John O’Connor or would we
consider the other witnesses within this clause.”
Azad’s attorney argued that witnesses other than O’Connor
had not been qualified as experts. The court responded, “Okay,
so you would suggest that I would say, yes, you are correct. John
O’Connor is the only expert witness in this case?” Azad’s
attorney answered yes. LDS’s attorney suggested the language of
the instruction could refer to the other attorneys who testified.
The trial court asked which instruction discussed expert
witness testimony. Azad’s attorney stated, “The general expert
instruction is [CACI No.] 219, Your Honor. [T]he use notes of
[CACI No.] 219 indicate that . . . if there’s only one witness that’s
testifying, then actually that instruction shouldn’t even be given.
But we didn’t object to [CACI No.] 219 because, you know, we had
an expert testify. [CACI No.] 219 is the general expert.” The
trial court concluded CACI No. 219 was not relevant to the jury’s
question.
LDS’s attorney argued strenuously that it was misleading
to say CACI No. 600 applied only to O’Connor’s testimony
because the jury did not need to accept the testimony of the
expert and the jury should be told to consider any other
instruction that might be applicable. The trial court responded,
“I have to answer their question, Mr. Leonard. I don’t go through
all the instructions and answer what else might apply to an
expert witness’ testimony. That’s not what their question is.”
The trial court overruled LDS’s objection to the court’s proposed
16
response. LDS suggested that the testimony by the attorneys at
trial could be considered expert testimony, but the trial court
stated that would be misleading because the attorneys had not
been designated as experts.
The trial court added a statement that instruction
CACI No. 600 applied to O’Connor only, then asked Azad’s
attorney if there was any objection to the court’s proposed
response. Attorney Tiomkin responded, “No, Your Honor.”
After further argument by LDS, the trial court stated the
answer given to the jury would not refer to CACI No. 219. The
court noted that Tiomkin agreed the answer did not need to refer
to CACI No. 219. Asked if he wanted to say anything else,
Tiomkin said no.
The trial court responded to the jury in writing as follows:
“Yes. You are correct. John O’Connor is the only expert witness
in this case and [CACI No.] 600 Standard of Care applies only to
John O’Connor’s testimony.”
The following day, the jury found in favor of LDS in the
amount of $277,156.54. The jury found Azad did not suffer any
damages as a result of negligence by LDS. Judgment was
entered on October 30, 2024, in favor of LDS. With the addition
of pre-judgment interests and costs, the total judgment awarded
was $503,264.17.
Azad filed a motion for judgment notwithstanding the
verdict, or in the alternative, for a new trial. Azad argued that
the jury was given conflicting instructions, in that CACI No. 219
should not have been given and was inconsistent with
CACI No. 600. In addition, he argued that the evidence did not
support the verdict because the damages were excessive based on
17
O’Connor’s uncontradicted testimony. The trial court denied the
motion. Azad filed a timely notice of appeal from the judgment.
DISCUSSION
A. Jury Instructions Given at Appellant’s Request
To the extent that Azad contends the trial court erred by
instructing the jury in the language of CACI No. 219, his claim is
barred by the doctrine of invited error.
“A party is entitled to have the jury instructed on each
viable legal theory supported by substantial evidence if the party
requests a proper instruction. (Soule v. General Motors Corp.
(1994) 8 Cal.4th 548, 572.)” (Orichian v. BMW of North America,
LLC (2014) 226 Cal.App.4th 1322, 1333.)
“The doctrine of invited error bars an appellant from
attacking a verdict that resulted from a jury instruction given at
the appellant’s request. [Citations.] [¶] The invited error
doctrine applies ‘with particular force in the area of jury
instructions. Whereas in criminal cases a court has strong sua
sponte duties to instruct the jury on a wide variety of subjects, a
court in a civil case has no parallel responsibilities. A civil
litigant must propose complete instructions in accordance with
his or her theory of the litigation and a trial court is not
“obligated to seek out theories [a party] might have advanced, or
to articulate for him that which he has left unspoken.”
[Citations.]’ [Citation.]” (Stevens v. Owens-Corning Fiberglas
Corp. (1996) 49 Cal.App.4th 1645, 1653.)
Azad is estopped from claiming on appeal that the court
erred in giving CACI No. 219 because Azad requested the
18
instruction without modification. Through the joint stipulated
instructions, Azad requested the trial court instruct the jury in
the language of CACI No. 219, and separately, Azad requested
that the trial court provide CACI No. 600. The appellant’s
tactical decision to request particular jury instructions is a classic
example of invited error.
B. Response to Jury Question
Azad contends the jury’s question about CACI No. 600
created an independent duty to provide complete legal guidance,
requiring the trial court to explain a limitation on the use of
CACI No. 219. We conclude Azad waived his objection to the trial
court’s answer by failing to object, and in any event, the trial
court’s answer to the jury’s question was correct.
A party waives any claim of error with respect to the trial
court’s response to a jury question when counsel participates in
the formulation and affirmatively approves of the response that
is ultimately given. (People v. Jennings (2010) 50 Cal.4th 616,
683.) In response to the jury’s question about the application of
CACI No. 600, the trial court expressly asked Azad’s attorney
several times whether Azad was in agreement with the court’s
proposed response to the jury. Azad’s attorney agreed with the
court’s answer each time and raised no objection. He did not
propose that any different or additional language be provided to
the jury. His contention on appeal that the response was
misleading or incomplete has been waived for failing to object or
request any additional language in the court below.
In addition, we note that the jury asked which witnesses
CACI No. 600 applied to. The trial court’s response that
19
CACI No. 600 applied to O’Connor’s testimony was correct. The
jury did not ask about CACI No. 219, and no reference to any
other jury instruction was necessary to answer the jury’s
question. No error has been shown.
C. Substantial Evidence Supporting Verdict
Azad does not challenge the finding that LDS established
the elements of their claims. Instead, Azad contends there was
no substantial evidence to support the jury’s finding of no
professional negligence, because undisputed evidence showed
LDS breached the standard of care. Specifically, he contends
that once LDS knew or should have known that there was no
proof of written verification of funds as required by paragraph 3C
of the purchase agreement, which was no later than September
2016, LDS owed a duty of care to tell Azad that there was
virtually no chance of winning his breach of contract action
against the seller, and by failing to advise Azad of this likelihood
of failure, LDS breached the standard of care. We conclude
substantial evidence supports the finding that there was no
professional negligence.
O’Connor testified that the standard of care required LDS
to advise Azad that his case was not winnable once LDS knew or
should have known that there was no written verification of
funds as required by the purchase agreement, because failing to
provide written verification of funds was a material breach of the
agreement from the outset. O’Connor acknowledged, however,
that the purchase agreement required the seller to send a notice
to buyer to perform, which expressly included the written
verification of funds, and allowed the buyer two days to take the
20
action specified. O’Connor did not know if there was testimony at
the arbitration about whether the seller delivered a notice to
buyer to perform with respect to the written verification of funds
because he had not read the arbitration transcript.
The evidence showed LDS did not breach of the standard of
care. Azad testified that he was unaware of the requirement to
provide proof of funds until later. He provided proof of funds to
Abramov, and the seller never said the documents were
inadequate. The seller never sent a notice to buyer to perform by
providing additional proof of funds. LDS showed that if there
was an issue with the proof of funds, the contract clearly required
the seller to provide a notice to buyer to perform and gave the
buyer a grace period to complete the action before the seller was
entitled to cancel the contract. O’Connor was not aware of the
conversations between LDS and Azad about proof of funds, and
he did not read the testimony in the arbitration proceedings.
It was also clear from the arbitration award that unless the
seller sent a notice to buyer to perform, a failure to provide proof
of funds was not a material breach of the agreement such that
Azad had no chance of winning on his claims. In analogous
circumstances, the arbitrator found that because Azad did not
send a notice to seller to perform, the seller’s purported failure to
provide an opportunity to inspect the property was not a material
breach of the agreement.
We note that LDS met the standard described by O’Connor
because LDS advised Azad that if he could not prove he was
ready, willing, and able to pay the full purchase price in February
2015, he had almost no hope of winning his case. Despite LDS’s
assessment, Azad chose to continue his action against the seller.
The proof of funds was irrelevant to the arbitration proceedings
21
and the arbitrator’s rulings. Instead, the arbitrator found Azad
did not in fact have $3.8 million to timely close escrow in
February 2015, which was a breach of the purchase agreement,
just as LDS warned Azad was the critical issue. Substantial
evidence supports the finding that LDS was not negligent and no
offset was warranted based on negligence.
Because the motion for judgment notwithstanding the
verdict and the motion for new trial were brought on the same
grounds already above, it is not necessary to address those
rulings further.
DISPOSITION
The judgment is affirmed. Respondent Leonard, Dicker &
Schreiber LLP is awarded its costs on appeal.
NOT TO BE PUBLISHED.
MOOR, Acting P. J.
I CONCUR:
KUMAR, J.*
* Retired Judge of the Los Angeles Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
22
Leonard, Dicker & Schreiber v. Jack Azad
B344387
BAKER, J., Concurring
I agree with the majority’s conclusion that defendant and
appellant waived the ability to challenge the trial court’s
response to the jury question by repeatedly agreeing with the
trial court’s proposed answer to that question before the answer
was given. I likewise agree the jury’s verdict is supported by
substantial evidence. The majority also rejects, insofar as it is
raised as a ground for reversal by defendant and appellant, the
trial court’s instruction of the jury with CACI No. 219. While I
disagree with the majority’s rationale on this point—which
unnecessarily and incorrectly relies on the doctrine of invited
error—I still agree that the CACI No. 219 instruction provides no
basis for reversal.
Invited error, as distinguished from forfeiture, applies
when a party makes a deliberate or tactical choice to request a
jury instruction. (See, e.g., People v. Weaver (2001) 26 Cal.4th
876, 970 [“Although the instruction was erroneous . . . , the record
reveals counsel made a deliberate choice to request the
instruction; hence, the error was invited”]; People v. Lucero (2000)
23 Cal.4th 692, 723 [“The doctrine of invited error bars a
defendant from challenging an instruction given by the trial court
when the defendant has made a ‘conscious and deliberate tactical
choice’ to ‘request’ the instruction”]; People v. Moon (2005) 37
Cal.4th 1, 28 [“The invited error doctrine will not preclude
appellate review if the record fails to show counsel had a tactical
reason for requesting or acquiescing in the instruction”]; see also
People v. Townsel (2016) 63 Cal.4th 25, 59 [“The Attorney
General contends defendant invited any error by agreeing that
the instruction should be given as read, and thus forfeited his
appellate claim. But the invited error doctrine does not apply
here, in the absence of any clear tactical purpose on defense
counsel’s part . . .”]; but see Jentick v. Pacific Gas & Electric Co.
(1941) 18 Cal.2d 117, 121.) The majority, however, greatly
expands the reach of the invited error doctrine by holding that
the mere submission of jointly proposed pattern jury
instructions—no matter whether the record permits an inference
that defendant and appellant deliberately or tactically requested
CACI No. 219 (see, e.g., People v. Coffman and Marlow (2004) 34
Cal.4th 1, 49)—is alone enough to justify resort to invited error.
If this were an appeal in a criminal case, where invocation
of invited error can foreclose an otherwise reviewable claim of
instructional error (given Penal Code section 1259), the majority’s
(mis)application of the invited error doctrine would present a
strong case for clarification or correction by our Supreme Court.
But this is a civil case, and in a civil case, instructional errors can
be forfeited on appeal by the absence of a trial court objection
regardless of whether or not the error is legally “invited.” (See,
e.g., Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121,
1130 [“[B]y requesting the instructions the court gave and not
requesting any additional instructions, plaintiff has forfeited the
right to argue on appeal that the court misinstructed the jury”];
Martinez v. Rite Aid Corp. (2021) 63 Cal.App.5th 958, 970 & fn.
3.) And that is why I concur in the result reached by the
majority: defendant and appellant forfeited any claim of error in
2
giving CACI No. 219 because he did not object to the instruction
(and, indeed, requested the court give it—the reason why doesn’t
matter).
BAKER, J.
3