Filed 3/16/06 Svane v. Rysewyk CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA


PAUL AND CAROL SVANE,

Plaintiffs and Appellants,

v.

DAN AND JULIA RYSEWYK,

Defendants and Respondents.
D044746



(Super. Ct. No. GIN021858)



APPEALS from a judgment and postjudgment order of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Affirmed.

Plaintiffs Paul and Carol Svane sued defendants Dan and Julia Rysewyk for breach of contract, breach of fiduciary duty/constructive fraud, "false promise," and unfair competition (Business and Professions Code section 17200 et seq., the Unfair Competition Law (UCL)), alleging defendants breached an oral agreement to become co-venturers with plaintiffs in a contracting business and violated fiduciary duties by ousting Paul Svane from the business, failing to issue stock to plaintiffs and failing to account for profits. A jury found defendants breached a contract with plaintiffs causing $15,000 in economic damages, and that defendants engaged in constructive fraud and breached their fiduciary duty, but plaintiffs did not suffer damages as a result of those acts. In a bifurcated proceeding, the trial court found as a result of the jury's findings of constructive fraud and breach of fiduciary duty that defendants violated the UCL, but rejected plaintiffs' claim for disgorgement of profits. It denied plaintiffs' motions to vacate the judgment and for new trial, judgment notwithstanding the verdict (JNOV), and attorney fees.

Plaintiffs contend: (1) defense counsel's misconduct combined with the trial court's erroneous evidentiary rulings entitles them to a new trial on damages stemming from defendants' fraud and breach of fiduciary duty; (2) the jury's finding that plaintiffs sustained no damages from defendants' fraud and breach of fiduciary duty lacks support by substantial evidence; (3) the trial court erred in denying their request for attorney fees under Labor Code section 218.5; (4) Paul Svane is entitled to prejudgment interest as a prevailing party under Labor Code section 218.5; and (5) the trial court erred by refusing to grant plaintiffs relief or an accounting under the UCL. We affirm the judgment and postjudgment order.

FACTUAL AND PROCEDURAL BACKGROUND

In 1999, Paul Svane, a licensed mechanical contractor doing business as Viking Mechanical, was introduced to Dan Rysewyk, a plumbing contractor doing business as Clearwater Plumbing. They arranged a meeting to discuss the idea of forming a combination mechanical contracting/plumbing business to bid government and other work.1 At their first meeting, the men talked about whether they would form a limited partnership or corporation, their duties, costs, and "how the pie was going to be split." A week or two later, they reached an oral agreement to form a business relationship in which they would evenly split profits from completed jobs. Rysewyk and Svane agreed they would incorporate the business, which was to be known as Western Mechanical Services, Inc. Svane understood that when his share of profits were paid, there would be withholdings from that payment; specifically, offsets for salary paid and other items deducted by employers.

Eventually Svane bid for and succeeded in obtaining three subcontracts with WR Chavez Construction, Inc. (Chavez) for work to be performed at the Camp Pendleton Marine Corps. Base. Each subcontract was entered into between Chavez and "Clearwater Plumbing dba Viking Mechanical." Julia Rysewyk received the subcontracts and forwarded them to Svane. After talking with Julia Rysewyk about the subcontracts, Svane signed them as "President," and placed check marks or his initials after the designation "State of Incorporation" and "Partnership."2 Dan Rysewyk designated Svane the responsible managing officer for the projects; Svane had total authority to hire, fire, order material, supervise the job sites, and deal with clients, but he did not sign paychecks.

The jobs began on or about January 3, 2000. Svane received a weekly draw of $1,120, with net pay of $853 after deductions, and the Rysewyks paid Svane's truck payment, insurance and other expenses. Svane was paid $32,480 during 1999. Over the course of several months, defendants paid Svane $51,000. On or about February 11, 2000, Svane left the site after Dan and Julia told him they were letting him go and fired all but two members of his crew.

In February 2002, plaintiffs filed a complaint for damages and equitable relief against defendants3 including causes of action for breach of contract, breach of fiduciary duty/constructive fraud, and for violation of the UCL. They later amended their complaint according to proof to include a cause of action for "false promise." Plaintiffs alleged defendants had orally agreed to enter into the mechanical contracting business and form a corporation whose shares would be jointly owned by the two couples and profits divided equally; that Svane would receive a weekly paycheck and do estimating, project negotiations and management, and defendants would fund the operation through loans and assist in the venture's operations. Plaintiffs alleged defendants breached the contract by ousting Paul Svane from his participation in the venture, failing to issue stock and account for profits, and breached their fiduciary duty by the aforementioned acts, by misleading plaintiffs, and by failing to disclose the creation of the corporate entity Western Mechanical Services, Inc.

On their breach of contract cause of action, plaintiffs prayed for recovery of "[e]xpectancy" and consequential damages, and requested a decree of specific performance requiring issuance of stock reflecting the percentage of ownership for Western Mechanical Services, Inc. For the breach of fiduciary duty causes of action, they sought compensatory, special and punitive damages, as well as imposition of a constructive trust and an accounting. Under their UCL cause of action, plaintiffs sought appointment of a receiver to conduct an accounting and prayed for disgorgement of profits, preliminary and permanent injunctive relief, and an "award of attorney fees . . . as authorized by the provisions of Civil Code [section] 1780, Code of Civil Procedure [section] 1021.5, and the 'substantial benefit' doctrine." As to all causes of action, plaintiffs further prayed for costs and "for such other relief as the court deems proper."

The matter proceeded to a bifurcated trial, with the UCL claims to be tried to the court after the remaining claims were tried to a jury. Plaintiffs made their case on the theory that they and defendants had agreed at the outset to enter into business together as coequal partners or joint venturers. Although Svane admitted to receiving weekly paychecks with certain withholdings, he testified he did not intend to change his status from that of a coventurer to an employee. Svane testified he did not understand he would pay either withholding or unemployment insurance, but in discussing the issue with Julia Rysewyk, he agreed she could take deductions out of his paycheck to avoid trouble with the IRS. After he was fired, Svane applied for unemployment insurance believing he was entitled to it because defendants deducted for such insurance in his paycheck.

Rysewyk conceded that he agreed to start up a business with Svane to take on jobs and share the profits from those jobs. However, although he acknowledged Svane had referred to Rysewyk as his "partner" in front of others, Rysewyk testified he told Svane he was going to be an employee of Clearwater Plumbing until they made the legal arrangements to set up the business. Julia Rysewyk testified that Svane was put on the payroll and she took steps to incorporate Western Mechanical Services, Inc., but she suspended those activities when she began questioning some of Svane's requested reimbursements. According to Dan Rysewyk, of the three jobs bid by Svane, one profited $157,000, another profited $19,509, and the third resulted in a loss of $37,602.16. Defendants maintained they accounted for the profits and losses to plaintiffs and paid them their due share.

By a special verdict, the jury found defendants breached a contract with plaintiffs causing $15,000 in economic damages. It further found defendants engaged in constructive fraud and breached their fiduciary duty, but unanimously determined those acts did not cause plaintiffs any damage. In a bifurcated proceeding, the trial court found as a result of the jury's findings of constructive fraud and breach of fiduciary duty that defendants violated the UCL, but that plaintiffs' expectancy of profits under that cause of action was not recoverable because it was neither an identified property interest nor a vested interest. It denied plaintiffs' motions to vacate the judgment and for new trial, judgment notwithstanding the verdict (JNOV), and attorney fees. Plaintiffs appeal from the judgment and the postjudgment order denying attorney fees.

DISCUSSION

I. Fair Trial

Plaintiffs contend they were denied a fair trial by instances of prejudicial misconduct by defense counsel and erroneous evidentiary and other rulings by the trial court; they maintain the errors allowed their counsel to be portrayed as incompetent and that resulting cumulative prejudice resulted in the "devaluation" of their claims. We address each claim in turn, keeping in mind that plaintiffs have the affirmative burden to show error, and in evaluating the effect of any error we are governed by article VI, section 13 of the California Constitution, which precludes reversal unless "the error complained of has resulted in a miscarriage of justice." (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802.) A "miscarriage of justice" occurs when it appears there is a reasonable probability that the appealing party would have realized a more favorable result in the absence of the error; probability in this context meaning merely a "reasonable chance, more than an abstract possibility." (Id. at p. 800.) Under Cassim, we are required to examine " 'each individual case to determine whether prejudice actually occurred in light of the entire record.' " (Id. at pp. 801-802.) Plaintiffs have the burden of showing that the error resulted in a miscarriage of justice. (County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105 [appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice].)

A. Defense Counsel's Answer to Question Regarding Insurance

During voir dire, the following exchange occurred between a prospective juror and defense counsel:

"[Juror]: I just have a question: Is this an insurance settlement or direct fund?

"[Defense counsel]: No, it is not. It is not.

"[Juror]: Okay.

"[Plaintiffs' counsel]: Umm –

"[Defense counsel]: The – Let's see. My math – "

"[Plaintiffs' counsel]: Your honor, I'd like to object to the –

"The Court: We'll talk about that when we go sidebar on the challenge, okay?"

At sidebar, plaintiffs' counsel asked the court to preinstruct the jury that evidence or consideration of the existence of an insurance policy covering any of the claims should not be discussed or considered in any way. Following a brief discussion recounting the juror's question and counsel's response, plaintiffs' counsel alternatively moved for a mistrial in view of the reference to insurance. The trial court denied that motion, but agreed to preinstruct the jury that they were not to consider insurance.
After counsel exercised their peremptory challenges and the jurors and alternates were sworn, the court gave that instruction: "I want to give you one instruction that might seem out of place to you at this point in time, but there was mention of it during the voir dire or the questioning process. So I think it's important for you to understand this instruction now. [¶] And that is you must not consider whether any of the parties to this case has insurance. The presence or absence of insurance is totally irrelevant. You must decide the case based only on the law and the evidence. So, in other words, you are not to make any mention or consider insurance in this case." (Emphasis added.) The court repeated this instruction at the close of the case.

Plaintiffs contend the court prejudicially erred by denying their request for a mistrial; that the jury's $15,000 contract damage award, and its failure to award any damages for their fiduciary duty and constructive fraud claims, demonstrates the jury was swayed by passion or sympathy for the defendants in that the defendants "were not insured and would have to pay damages from their own pockets . . . ." Plaintiffs point out that the juror who asked the insurance question had been a defendant in an automobile personal injury lawsuit and had disagreed with the outcome of the trial in that case, and maintain he was likely influenced by his experience and "wanted to soften the blow of an award of damages" against the defendants.4

These arguments suffer from a fundamental flaw in that plaintiffs have not overcome the sound presumption of appellate practice that jurors understand and follow the trial court's instructions and admonitions. (People v. Yeoman (2003) 31 Cal.4th 93, 139; Weeks v. Baker & McKenzie, supra, 63 Cal.App.4th at p. 1163; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17, citing Francis v. Franklin (1985) 471 U.S. 307, 325, fn. 9 [The "crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions"].) It is a basic tenet of law that counsels' statements during trial or their questions are not evidence, and the jury in this case was so instructed.5 As indicated, the court also preinstructed the jury that the presence or absence of insurance was totally irrelevant, and they were not to consider it for any purpose. We are presented with no reason to believe the jury acted contrary to the trial court's instructions or its admonition to disregard any reference to insurance. Absent evidence to the contrary, we must presume the jury complied with those instructions. (Weeks, supra, 63 Cal.App.4th at p. 1163.) And, to the extent any prejudice might be deemed to have occurred from counsel's answer, the court's admonitions to the jury both before and after trial were sufficient to cure it.

B. Paul Svane's Bankruptcy

Plaintiffs contend the trial court prejudicially erred by admitting over its counsel's objection inadmissible character evidence, namely, that Paul Svane (1) sought bankruptcy protection twice in the past ten years, and (2) never earned more than $35,000 per year before the year 2000. Plaintiffs suggest defense counsel committed misconduct by raising the issue; they argue that "[e]licitng this information was consistent with a pattern of conduct by defense counsel intended to belittle Mr. Svane." They further maintain the court's introduction of evidence of bankruptcy to impeach Paul Svane's credibility constituted improper discrimination against a bankrupt under the Bankruptcy Code's antidiscrimination provision. (11 U.S.C. § 525.)

As defendants point out, plaintiffs do not set out the entire context of the record pertaining to admission of this evidence in their opening brief. Paul Svane's bankruptcy was first raised by Svane himself on direct examination, when he testified that his ouster from the business "put him in a financial tailspin." He went on to state: "And, in effect, I ended up having to do – do a Chapter 7 and a Chapter 13. After Chapter 7, I lost my house, and I just had some great trials since that time." On cross-examination, defense counsel asked whether Svane recalled filing for bankruptcy before, eliciting a relevance objection from plaintiff's counsel. At a sidebar on the issue, defense counsel stated that at no time before their opening statement had plaintiffs claimed they had been forced into bankruptcy as a result of the defendants' acts, and he made an offer of proof that the plaintiffs' debts at the time of their latest bankruptcy were incurred before they became involved with defendants. The trial court stated it did not consider the evidence character evidence, and pointed out the bankruptcy issue had been raised on direct examination, thus permitting defense counsel to raise it in response to Svane's assertion that the defendants caused him to file for bankruptcy. Under those circumstances, the court ruled that defendants were "very entitled, as a defense, to claim [Svane had] gone into bankruptcy before." On cross-examination, defense counsel elicited that Svane had sought bankruptcy protection on two separate occasions, in 1989 and 1991, before he filed again in November 2000, and that the bankruptcy court did not take his house nor was the house lost as a result of the bankruptcy.

Defendants argue that plaintiffs' failure to state the forgoing matters fairly in its brief waives any alleged error. We agree plaintiffs' misleading rendition of the procedural history warrants a finding that they have waived this claim. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Nevertheless, proceeding to the merits, we conclude plaintiffs have not shown how the trial court's ruling under these circumstances was a manifest and prejudicial abuse of discretion, as they must. (See Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.) "The trial judge has very broad discretion in admitting or not admitting evidence (Evid. Code, § 352) and in regulating the scope of cross-examination [citation]; injury is not presumed from error but must be affirmatively shown [citation], which principle is also embodied in the harmless error rule (Cal. Const., art. VI, § 13; Evid. Code, § 353. subds. (a) and (b)). The judgment will not be reversed unless the court can say the result would have been different had the error not been made." (Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384.)

Here, the trial court distinguished between inadmissible character evidence or evidence of prior conduct under Evidence Code sections 1101, subdivision (b) and 787, as compared to permissible impeachment testimony under Evidence Code section 780.6 The evidence elicited on cross examination countered Svane's testimony on direct examination suggesting that defendants' conduct had forced plaintiffs into bankruptcy and caused them to lose their house. The fact Svane had filed for bankruptcy twice before tended to show his bankruptcy filing resulted from his own poor financial management, not from his dealings with defendants. As the trial court reasoned, the evidence was not impermissible character evidence admitted to show Svane's bad character; rather, the evidence impeached Svane's testimony concerning the consequences of his ouster from defendant's business. (Evid. Code, § 780, subd. (i).) "As with all action by a trial court within the exercise of its discretion, as long as there exists 'a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside, even if, as a question of first impression, we might feel inclined to take a different view from that of the court below as to the propriety of its action.' " (Gonzales v. Nork (1978) 20 Cal.3d 500, 507.) Plaintiffs have not persuaded us the court's ruling was without logic or reason, a clear abuse of discretion.

There is no merit to plaintiffs' argument that admission of Svane's prior bankruptcies constituted improper discrimination under the United States Bankruptcy Code. The relevant portion of the Bankruptcy Act is title 11 United States Code section 525(a), which provides in part: "[A] governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act . . . solely because such bankrupt or debtor is or has been a debtor under this title . . . or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act." Very simply, the trial court's act of admitting certain evidence at a civil trial does not by any reasonable interpretation fall under the act's provisions.

C. Testimony of Attorney Stephen Lopardo

At trial, defendants called as a witness Stephen Lopardo, from whom Julia Rysewyk sought legal advice in September 1999 about the type of business entity the Rysewyks should form. Lopardo testified that Julia Rysewyk told him Svane was being paid as an employee on a trial basis, and that the Rysewyks were hopeful they would enter into a partnership with him if they were satisfied with his performance. In a series of conversations and meetings, he advised Julia Rysewyk about the different types of business entities, ultimately recommending a corporation given the trial nature of their relationship because it would permit the flexibility to permit Svane to later acquire stock in the corporation. According to Lopardo, In December 1999, the Rysewyks reserved the name Western Mechanical Services, Inc. and also filed articles of incorporation, which created the legal entity. However, stock was never issued. Lopardo testified that throughout his representation of the Rysewyks, he and Julia Rysewyk consistently acknowledged Svane was an employee until he became involved as a shareholder.

Plaintiffs challenge admission of Lopardo's testimony on several grounds. First, they contend the trial court prejudicially erred by failing to honor their in limine motion by permitting him to testify about certain attorney-client communications with the Rysewyks, on grounds the Rysewyks' counsel refused to permit deposition questioning of Dan Rysewyk pertaining to those communications. Second, they maintain Lopardo's testimony was inadmissible because he had no personal knowledge on any material fact within the meaning of Evidence Code section 702. Finally, they contend the court erroneously permitted Lopardo to argue and give his opinions on the law, which allowed the jury to substitute his interpretation for the jury instructions.

We agree with defendants that, in general, these contentions are vague and not developed with reasoned argument and authority. Further, they are not accompanied by any showing that the jury was actually impacted by Lopardo's testimony; plaintiffs merely baldly and amorphously assert that the testimony "allowed the jury to substitute Attorney Lopardo's impressions of Julia Rysewyk's credibility for their own" and to "substitute Lopardo's interpretation of the law for the jury instructions." Plaintiffs point to nothing in the record that indicates the jury gave undue weight to Lopardo's testimony on the issue of damages or relied on any sort of legal conclusion he gave while ignoring any jury instruction or instructions. Indeed all indications are that the jury did not give Lopardo's testimony weight as evidenced by their favorable liability verdicts for plaintiffs on the breach of contract and breach of fiduciary duty claims. In short, plaintiffs do not explain how there is a reasonable chance the jury's verdict would have been different had the court sustained their objections or granted their requests to exclude Lopardo's testimony. (Cassim, supra, 33 Cal.4th at p. 800.) Absent a showing that a miscarriage of justice resulted from these claimed errors, plaintiffs' evidentiary contentions fail.

The contentions fail on the merits in any event. The first is based on the premise that Dan Rysewyk was instructed at his deposition not to answer questions about any advice from or communications with Lopardo. The premise is not supported by the record, which shows defense counsel's comment during Rysewyk's deposition was narrow. In response to plaintiffs' counsel's question whether Rysewyk consulted an attorney before terminating Svane, defense counsel paused questioning and advised plaintiffs' counsel he was not presenting an advice of counsel defense for purposes of Svane's termination from employment. Defense counsel stated, "I'll say it one more time so it's clear. We are not asserting that [Rysewyk] is relying on an advice-of-counsel defense to terminate Mr. Svane." Plaintiffs' counsel then abandoned his line of questioning about Lopardo's advice. Any limitation on Rysewyk's deposition testimony did not extend to Lopardo's advice on the formation of the corporation, or defendants' state of mind for purposes of punitive damages. On this record, plaintiffs have not shown how the trial court's rulings admitting Lopardo's testimony on those issues was a manifest abuse of discretion.

Further, defense counsel explained to the court in an offer of proof that Lopardo's testimony related to the defendants' state of mind as to Svane's employee status; the trial court admitted the testimony on that ground for the breach of contract action as well as on plaintiffs' claim for punitive damages. Plaintiffs' argument that Lopardo's advice was not contemporaneous with the parties' promises and therefore is irrelevant is not supported by any authority, and we have no basis to conclude the court's ruling was an abuse of discretion. Finally, plaintiffs' assertion that Lopardo made legal arguments to the jury is meritless. They point to Lopardo's testimony that "We [he and Julia Rysewyk] discussed [Svane] was always an employee up until the time he became involved as a shareholder when and if that happened." This testimony can not be reasonably characterized as a legal conclusion or argument. Lopardo testified about his legal advice given to Julia Rysewyk; it was evidence of percipient discussions and opinions, not after-the-fact expert opinions.

D. Sanguinetti Rule

Plaintiffs generally contend the trial court overstepped its bounds into advocacy when it "imposed objections for the defendants." They maintain the trial court's actions violated the rule in Sanguinetti v. Moore Dry Dock County (1951) 36 Cal.2d 812, 822, by leading the jury to believe how it should decide the case.

The contention is meritless. Plaintiffs again do not fully set forth the context of the trial court's ruling. The sole cited reference is to Lopardo's cross-examination, during which defense counsel interposed an objection that questions asked by plaintiffs' counsel pertaining to the legal effect of a partnership went beyond direct examination. The court stated it would "allow [plaintiffs' counsel] a couple of questions on this issue. If you want to use this witness as an expert on partnership corporation law, that's fine. Go ahead." It was only after defense counsel interposed another objection that the court ruled the questioning went beyond the scope of direct:

"[Plaintiffs' counsel:] Does a partner – Can a partner sue in it's [sic] own name?

"[Lopardo:] Depends.

"[Plaintiffs' counsel:] What –

"[Defense counsel]: So that I'm not objecting all the time, I'll leave it to the court, your honor.

"The court: All right. Yeah, I think we're going beyond at this point in time. So the objection is sustained. Let's go on to the next question."

The record shows the court was simply ruling on a continuing objection by defense counsel rather than imposing sua sponte objections. Further, we fail to see how this brief exchange can be viewed in any way as an indication from the trial court as to "how the case should be decided" as plaintiffs' assert, or how it violates the principles expressed in Sanguinetti, supra, 36 Cal.4th at p. 822. As recently explained by the high court in Cassim, Sanguinetti involved the trial court's grant of a motion to increase the prayer for damages in front of the jury, which "sent an implied message that the trial court believes the increased damages are warranted by the evidence." (Cassim, supra, 33 Cal.4th at p. 799.) Cassim stated: "Because the trial court's views would necessarily have undue weight with the jury, implying the trial court approves of some portion of a litigant's case is improper." (Ibid.) The trial court's ruling here was not an improper endorsement of plaintiffs' position, indeed the court went out of its way to permit plaintiffs' counsel to ask questions that went beyond the scope of direct examination. There was no Sanguinetti error by the trial court.

E. Introduction of Documents Not Produced In Discovery

Plaintiffs contend the court erred by permitting defendants to introduce documents into evidence that had not been produced by the defendants during discovery. The claim is without merit.

Plaintiffs first made this claim in their new trial motion. There, they conceded that their counsel and expert Burnthon had reviewed five banker boxes of financial records on "numerous occasions." They then asserted that during trial, defendants produced not five, but six bankers' boxes. From this mere fact, plaintiffs took the position that defendants had suppressed evidence, despite acknowledging Julia Rysewyk's testimony that she had simply reorganized the records. Plaintiffs' appellate claims are no stronger. First, the record citation provided by plaintiffs show its counsel's objected to the admission of the documents on grounds they were not marked as exhibits, not that they had not been previously produced.7 For that reason alone, the contention is waived.

In any event, we find no error in the trial court's evidentiary rulings. The record shows defense counsel sought to introduce individual job invoices in his examination of Julia Rysewyk after plaintiffs' counsel sought to prove her accountings were inadequate because the invoices did not reference the particular job. The invoices were admitted over hearsay and foundation objections to demonstrate they were in fact marked by job. Plaintiffs have not argued the trial court's ruling on those hearsay and foundation objections was error, and we find no abuse of discretion in its ruling. Finally, even assuming arguendo some error, plaintiffs do not identify the new, purportedly undisclosed documents, nor do they explain to what issues those documents may relate so as to demonstrate prejudice. Absent any such showing, plaintiffs have not established a miscarriage of justice.

F. Cumulative Error

We have found only one matter that is arguably error, namely, counsel's response to the juror's comment pertaining to insurance, and as to that, any resulting prejudice was eliminated by the court's admonition. No error or miscarriage of justice stemmed from any of the other challenged evidentiary rulings. The record does not demonstrate that any reversible or cumulative evidentiary error occurred. (Dam v. Lake Aliso Riding School (1936) 6 Cal.2d 395, 399.)

II. Sufficiency of the Evidence

Plaintiffs contend the evidence is insufficient to support the jury's finding that they suffered no damages as a result of defendants' constructive fraud and breach of fiduciary duty. Rather, they maintain they presented "overwhelming" evidence of injury resulting from the defendants' violation of their fiduciary duty by virtue of defendants (1) secretly paying themselves an "overhead fee" that bore no relation to their actual overhead costs; (2) charging an arbitrary fee for Julia Rysewyk's accounting services; (3) failing to request change orders and additional compensation for delays and extra work caused by the government and its other contractors; (4) failing to provide plaintiffs with an accounting of payments and costs for the individual subcontracts; (5) secretly appropriating to themselves assets of the business including unused equipment, materials and tools; (6) providing the government with extra work and materials at no charge; (7) burdening the business with interest charges on loans that were taken to pay their employees on other jobs; and (8) managing the subcontracts in an unprofessional and unbusinesslike manner so as to reduce the venture's profits. Plaintiffs argue their damages were supported by the uncontradicted testimony of their expert, Collis Burnthon, and further assert that in addition to their financial losses, they suffered emotionally and experienced strain in their marital relationship.

We review damage awards for substantial evidence. (See Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1293; Miller v. San Diego Gas & Electric Co. (1963) 212 Cal.App.2d 555, 560.) Under this rule of appellate review, we resolve all conflicts in the evidence in favor of the prevailing parties, and we draw all reasonable inferences in a manner that upholds the verdict. (See Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926; In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.) This court is without power to judge the effect or value of the evidence, weigh it, consider the credibility of witnesses, or resolve testimonial or evidentiary conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. (Leff v. Gunter (1983) 33 Cal.3d 508, 518.) We then determine whether the evidence thus marshaled is substantial, that is, whether it is "evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value." (Kuhn at p. 1633; Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)

We confront several difficulties in assessing plaintiffs' evidentiary challenge. First, the acts itemized by plaintiffs are matters going to defendants' liability for breach of fiduciary duty or constructive fraud, which the jury determined in plaintiffs' favor. Plaintiffs' itemization of this conduct does not establish whether and to what extent, if any, they suffered financial or other loss as a consequence of those acts. It is the plaintiff's burden to prove he or she has suffered damages as a result of the defendant's acts and must also prove the amount of damages with reasonable certainty. (Carpenter Foundation v. Oakes (1972) 26 Cal.App.3d 784, 799-800; Taliaferro v. Hoogs (1963) 219 Cal.App.2d 559, 560.) Even if the plaintiff establishes liability against the defendant, the plaintiff still has the burden of proving damages. (Fields v. Riley (1969) 1 Cal.App.3d 308, 313.) The mere fact of wrongful conduct by the defendant does not in itself prove monetary damages. (Lundquist v. Marine Engineers Beneficial Association No. 97, Inc. (1962) 208 Cal.App.2d 390, 395.)

Second, plaintiffs have not set out for our benefit the proper measure of damages for the breach of fiduciary duty/constructive fraud found by the jury.8 Third, plaintiffs have not fairly set out the evidence supporting the jury's implicit finding, in accordance with the jury instructions on these issues, that defendants were not a substantial factor in causing plaintiffs' harm, or that the fair market value of what plaintiffs would have received in the absence of defendants' fraud was more than the fair market value of what they actually received. (See footnote 8, ante.) To avoid a waiver of the contention, it is the appellant's burden to set forth " ' "all the material evidence on the point and not merely their own evidence." ' " (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246.) These deficiencies, if not a waiver in themselves, significantly hinder our analysis of the sufficiency of the evidence.

We have nevertheless reviewed the evidence to which plaintiffs refer, in particular that of plaintiffs' mechanical contractor expert Collis Burnthon,9 and find the jury could reasonably have found it was insufficient to establish either causation or the fact of damage to a reasonable certainty. Plaintiffs' characterize Burnthon's testimony as undisputed that the job was not managed after Svane left, that the records provided to Svane made it impossible to conduct an accurate accounting, and that defendants did not maximize the profits available. Burnthon's actual testimony, however, reveals no reasonably certain damage assessment, only a vague assertion that the bid purchasing resulted in lower profits on the jobs; the following exchange occurred when Burnthon was asked if he could approximate that loss by percentage of profit or gross price:

"[Burnthon:] Well, for instance, if you're bidding a job and a supplier comes in and quotes you a price for, say, valves, you use that price on him for the rest of the job. But if you go to someone else and buy those valves or don't buy them all at one time from the supplier, you're going to pay twice as much for –

"[Plaintiffs' counsel:] And you believe that that happened in this case?

"[Burnthon:] I think so."

Further, Burnthon was unable to testify about what defendants should have billed the government for the jobs, in part due to what he claimed were insufficient invoices and the absence of schedules or job cost breakdowns. On cross-examination, however, he conceded he had only looked at the documents produced by the defendants, and had not reviewed the records of the government or general contractor. Burnthon's testimony permitted the jury to conclude plaintiffs had not proved either causation or any legal measure of damage, but as we stated, our focus should not be on plaintiffs' evidence, it must be on the evidence to support the jury's verdict in defendants' favor on causation and damages.

Turning to that inquiry, the record contains extensive testimony from Julia Rysewyk about how she reached her calculation of the net profits received for the Camp Pendleton projects, which were presented in accountings provided to plaintiffs on June 21, 2001. She testified that Clearwater Plumbing received $139,529.18 from all three jobs, from which she deducted $120,285, consisting of a 10 percent overhead charge ($92,662.40), $12,097.60 in interest paid on a bank loan, and $15,525 in Julia Rysewyk's wages, for a net profit of $19,244.18. Julia Rysewyk explained plaintiffs were entitled to one-half that amount, or $9,622.09, but stated Svane had agreed to reimburse the $51,779.63 he was paid in wages and reimbursement so that he actually owed defendants money. Although plaintiffs' counsel sought to attack the sufficiency and level of detail used for the accounts, the jury was entitled to believe defendants' testimony that they paid Svane his wages and also provided all profits due him based on their compilation and assessment of the project invoices. We are not to reweigh or judge their credibility in our search for substantial evidence.

As for emotional distress damages, plaintiffs do not describe the nature and extent of their claimed emotional suffering; the sole record citation to the record in plaintiffs' factual recitation is to Paul Svane's testimony that "it was a very difficult time" for them, but that he and his wife were "still together. We're still strong." Plaintiffs give no further summary of the evidence to support their claim of insufficiency of the evidence as to the jury's verdict on such damages. Absent a fair recitation of the evidence on this point, the point has been waived. Nevertheless, we note emotional distress is a form of actual damage and must be proved to a reasonable certainty as any other actual damage. (Merlo v. Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 16.) The jury did not give Svane's testimony weight, and in our view, it was entitled to conclude based on such cursory testimony that plaintiffs had not proved these damages to a reasonable certainty.

III. Attorney Fees Under Labor Code Section 218.5

Following entry of judgment plaintiffs moved for an award of attorney fees under the "prevailing party" provisions of Labor Code section 218.5, which provides in part: "In any action brought for the nonpayment of wages . . . the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action. . . ." They argued in part that the jury's award of $15,000 in contract damages constituted a finding that Svane's wages were not paid to him, and because they had prevailed and also requested attorney fees in their complaint, Labor Code section 218.5 mandated an attorney fee award. They maintained defendants were judicially estopped from arguing the jury's award was not one for wages as defined by the Labor Code, as defendants had claimed throughout that Svane was an employee and his share of profits was regarded by them as his salary. The trial court denied the motion, concluding (1) judicial estoppel was inapplicable because there was no indication that it or the jury had accepted defendant's position, i.e., that plaintiff was their employee and his share of profits was regarded by them as his salary and (2) plaintiffs' complaint did not allege nonpayment of wages, contain a prayer seeking such damages, or allege any violation of the Labor Code as the basis of any cause of action.

On appeal plaintiffs contend the trial court erred in declining to award them their requested attorney fees. They repeat their contentions made below, maintaining the $15,000 damage award must be considered wages owed to Svane under this statute because defendants consistently took the position during trial that Svane was merely an employee and that the jury, by finding a breach of their joint venture agreement, in effect determined Svane's status was that of an employee. They further contend defendants are estopped from denying Svane's employee status for purposes of awarding attorney fees under this provision by virtue of their assertions that Svane's share of the profits was wages within the meaning of the Labor Code. Defendants respond that plaintiffs' failure to plead a cause of action for wages or penalty under the Labor Code is dispositive of the issue; that plaintiffs' cause of action for breach of contract was not such a claim, and judicial estoppel does not apply because there is no evidence defendants sought any unfair advantage in advancing their claim that Svane was an employee.

The applicability of Labor Code section 218.5 to plaintiffs' claims is a legal question subject to de novo review. (Californians for Population Stabilization v. Hewlett-Packard Co. (1997) 58 Cal.App.4th 273, 294 (Californians), overruled on other grounds in Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 175-177.)

By all indications, plaintiffs action was not "an action brought for nonpayment of wages" within the meaning of Labor Code section 218.5. As the trial court pointed out, plaintiffs' complaint did not allege any violations under the Labor Code, and the prayer under the breach of contract cause of action sought only "expectancy damages," "consequential damages" and specific performance requiring the issuance of stock. Concededly, California is a notice pleading state and allegations in complaints must be liberally construed. (Code Civ. Proc., § 452.) A liberal reading of the complaint, however, fails to show plaintiffs asserted any claim for unpaid wages in connection with their breach of contract action, and they did not seek attorney fees under that cause of action. Indeed, plaintiffs only prayed for an award of attorney fees under their UCL cause of action and not under any Labor Code provision; specifically, they sought an "award of attorney fees, in an amount the court determines to be reasonable, as authorized by the provisions of Civil Code § 1780, Code of Civil Procedure § 1021.5, and the 'substantial benefit' doctrine." Further, plaintiffs' counsel's statements to the trial court10 and to the jury in closing arguments11 reveal that the factual theory of their case was that Svane and Rysewyk agreed to become partners and split the profits of the business, and that as partners, they owed duties of loyalty and honesty and duties to account to each other. The jury was accordingly instructed on the test for the existence of a partnership, as well as the fiduciary duties of a partner to the partnership, and lost profits as an element of contract damages. They were not instructed that wages were an element of damage, nor did any jury instruction define wages under the Labor Code, set out elements of a cause of action for unpaid wages, or otherwise advise the jury that plaintiffs sought recovery of unpaid wages.

The circumstances are comparable to that in Californians, in which the court of appeal affirmed an order denying recovery of attorney fees under section 218.5 where the plaintiff's action was for unfair competition, and the prayer of the plaintiff's complaint did not include unpaid wages or benefits. (Californians, supra, 38 Cal.App.4th at p. 295.) Plaintiffs attempt to distinguish Californians on the basis that in that case, "the plaintiffs had no standing to sue under section 218.5, and thus they were not entitled to recover." But nowhere at the referenced page does the court in Californians address standing; the issue was squarely whether a plaintiff who had sued for injunctive relief under the UCL had brought an "action . . .for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions" for purposes of entitlement to attorney fees under Labor Code section 218.5. (Id. at pp. 294-295.) Plaintiffs do not give us any reason to depart from that court's analysis.

Nor can we interpret the jury's $15,000 damages verdict in plaintiffs' favor as an award of unpaid wages as opposed to one for lost profits under plaintiffs' proffered theory that defendants breached an agreement to enter into a partnership and equally share profits from the Camp Pendleton jobs with Svane. The written verdict is the final expression of the jury's decision, and its construction is a matter of law. (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 393, p. 447; Fernandez v. Consolidated Fisheries, Inc. (1953) 117 Cal.App.2d 254.) Importantly, we are required to presume the jury followed the court's instructions. (Morgan v. Stubblefield (1971) 6 Cal.3d 606, 621.) We are further required to interpret the verdict in a manner that makes the jury's findings consistent. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 540-541, overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580.) The record as we have summarized it above, including the pleadings, evidence and jury instructions, does not support such an interpretation. (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457 [verdict to be interpreted by its language considered in connection with the pleadings, evidence and instructions]; Maxwell v. Powers (1994) 22 Cal.App.4th 1596, 1603-1604 [jury verdict should be interpreted in a manner to " 'uphold it and give it the effect intended by the jury, as well as one consistent with the law and the evidence' "].)

Finally, plaintiffs' judicial estoppel argument is unavailing. "The concept of judicial estoppel prevents a party from asserting a position in a judicial proceeding that is contrary or inconsistent with a position previously asserted in a prior proceeding. The purpose is to protect the integrity of the judicial process and not the parties of the lawsuit." (International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350.) "As the primary purpose of the judicial estoppel doctrine is not to protect the litigants but to protect the integrity of the judiciary, the doctrine does not require reliance or prejudice before it may be invoked." (Id. at p. 351, citing Billmeyer v. Plaza Bank of Commerce ( 1995) 42 Cal.App.4th 1086, 1092.) An essential element of judicial estoppel is that the tribunal adopt the party's first position. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183; see also Kelsey v. Waste Management of Alameda County (1999) 76 Cal. App.4th 590, 598.) Here, plaintiffs have not shown that element of judicial estoppel has been met, i.e., they have not shown that either the court or the jury accepted defendants' position that Svane was a mere employee. The jury's liability verdict was in plaintiffs' favor, and we have already concluded that the jury's damage award cannot be reasonably interpreted as one for unpaid wages based on a theory that Svane was defendants' employee.

Our conclusion resolves plaintiffs' contention that Svane is entitled to prejudgment interest on the jury's $15,000 damage award, which is premised on the argument that the award constitutes unpaid wages for labor performed as an employee under Labor Code section 218.6 and Civil Code section 3289.12 As we have concluded above, plaintiffs' action was not one for unpaid wages, and we cannot reasonably interpret the jury's breach of contract damage award as an award of unpaid wages under the Labor Code. Because we base the foregoing conclusions on the pleadings and record alone, including our interpretation of the jury's verdict, we deny plaintiffs' request to take judicial notice of legislative history and other materials relating to Labor Code section 218.5. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [only relevant material may be judicially noticed].)

V. Relief Under the UCL

Plaintiffs advance various challenges to the trial court's ruling denying them relief under the UCL, as well as adequacy of the court's statement of decision.

A. Statement of Decision

Plaintiffs contend that despite their request for a statement of decision on the issues, the trial court refused to rule on (1) whether defendants had accounted for all proceeds from the Camp Pendleton jobs, and (2) whether the accounting provided to plaintiffs was accurate, matters that they claim go to the heart of the case.

"A trial court rendering a statement of decision under Code of Civil Procedure section 632 is required only to state ultimate rather than evidentiary facts. A trial court is not required to make findings with regard to detailed evidentiary facts or to make minute findings as to individual items of evidence. Only where a trial court fails to make findings as to a material issue which would fairly disclose the determination by the trial court would reversible error result. . . . In issuing a statement of decision, the trial court need not address each question listed in a party's request. All that is required is an explanation of the factual and legal basis for the court's decision regarding such principal controverted issues at trial as are listed in the request." (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 67-68.) A court has no duty to make findings on every matter on which evidence is received at trial. (Harvard Investment Co. v. Gap Stores, Inc. (1984) 156 Cal.App.3d 704, 710, fn. 5.)

Aside from the general rule that a statement of decision need only state ultimate facts, plaintiffs' only substantive argument is as follows: "The Trial Court's failure to specify its findings despite repeated requests and objections is reversible error in the face of the findings that a violation of the UCL took place, and that plaintiff's [sic] failed to specify what the 'profits should have been.' " Setting aside the difficulty in understanding this argument, we find several insurmountable flaws. First, plaintiffs have not set out for our benefit the elements of their UCL action, or identify the ultimate facts the trial court was required to decide. On appeal, they limit their challenge to the court's failure to make a finding confirming and verifying defendants' accounting of profits. However, the court's statement of decision was not required to address the existence or sufficiency of these particular calculations, it was enough that it addressed the ultimate issue, namely, whether plaintiffs were entitled to a remedy under the UCL, namely, injunctive relief or restitution. (Korea Supply Company v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1147; Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1011-1012 (Feitelberg).) In its statement of decision, the trial court found plaintiffs' interest in the Camp Pendleton profits was contingent on defendants reaping a profit from the jobs, and, relying on Korea Supply, it concluded plaintiffs expectancy of a profit was not an identified property or vested interest for purposes of obtaining relief under the UCL. Plaintiffs have not convinced us that this was an insufficient finding on the principal controverted issue presented in connection with the damages element of their UCL cause of action.

B. Merits of Trial Court's Determination on Restitution

Plaintiffs further challenge the merits of the trial court's ruling declining to award restitution. They contend the court erred by concluding under Korea Supply that their interest in the venture's profits was contingent when it was assertedly not contingent in view of the existence of the parties' contractual relationship. They do not provide supporting authority for this proposition other than to distinguish Korea Supply as involving competitors and not joint venturers with a contractual relationship. Plaintiffs also reargue their case, stating that based on what they claim is uncontroverted evidence of defendants' misconduct in understating profits, misappropriating partnership assets, and charging unrelated and excessive expenses, plaintiffs are entitled to an accounting so that profits can be ascertained and restitution made. They suggest we must reverse the trial court because its decision is based on a faulty conclusion of law.

Plaintiffs do not explain to what conclusion of law they refer. Assuming it is the trial court's conclusion as to the nature of plaintiffs' interest for purposes of a restitutionary award, the court did not err. "A court cannot, under the equitable powers of section 17203, award whatever form of monetary relief it believes might deter unfair practices." (Korea Supply, supra, 29 Cal.4th at p. 1148.) Rather, the court is limited to restitution, by restoring money or property to a direct victim of an unfair business practice: " 'The object of restitution is to restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest.' [Citation.] Consistent with that objective, 'restitutionary awards encompass quantifiable sums one person owes to another . . . .' [Citation.] Such awards represent 'money that once had been in the possession of the person to whom it [is] to be restored.' [Citation.] [¶] The 'notion of restoring something to a victim of unfair competition includes two separate components. The offending party must have obtained something to which it was not entitled and the victim must have given up something which he or she was entitled to keep.' [Citation.] Restitution thus is available where 'a defendant has wrongfully acquired funds or property in which a plaintiff has an ownership or vested interest.' [Citations.] In other words, 'in the UCL context . . . restitution means the return of money to those persons from whom it was taken or who had an ownership interest in it.' " (Feitelberg, supra, 134 Cal.App.4th at p. 1012, emphasis added; see also Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 697-698.) Restitutionary relief is not available to plaintiffs in this case because the disgorgement of profits they seek does not translate into discrete, readily ascertainable sums of money that were taken from and thus can be restored to them.

C. Entitlement to Accounting

Plaintiffs contend section 17203 of the Business and Professions Code gave the trial court broad authority to order an accounting and it was "duty bound" to do so because they had prayed for an accounting in their complaint. Under the applicable remedial provision of the UCL, when a violation of the statute is shown, the "court may make such orders or judgments . . . as may be necessary to restore to any person in interest any money or property . . . acquired by means of such unfair competition ." (Bus. & Prof. Code, § 17203, italics added.) As our Supreme Court has stated, this provision "does not mandate restitutionary or injunctive relief when an unfair business practice has been shown." (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 180 (Cortez).) Instead, it constitutes "a grant of broad equitable power" enabling the trial court to order such relief if, and to the extent, determined necessary. (Ibid.) This equitable power "cannot properly [be] exercise[d] without consideration of the equities on both sides of a dispute," but rather "consideration of the equities between the parties is necessary to ensure an equitable result." (Id. at pp. 180, 181.)

The trial court's broad discretion recognized in Cortez to award, inter alia, no restitution at all, cannot be squared with plaintiffs' argument that in this case an accounting was mandated simply by their having pleaded for such relief in their complaint. In its statement of decision, the court stated: "Since the jury heard testimony about how the Defendants accounted for the loss of profits on the project and Defendants were extensively examined about their accounting methods, there is no reason to believe the [jury's $15,000] damage award does not represent the restitution sought by plaintiffs." Plaintiffs do not explain how the court's conclusion in this regard falls outside the broad discretion accorded it under the UCL.

Plaintiffs further rely on Kessloff v. Pearson (1951) 37 Cal.2d 609. In Kessloff, the plaintiff sued for declaratory relief and an accounting, alleging he and defendant Pearson entered into a written contract by which defendants employed him and agreed to pay him a weekly salary as well as ten percent of the net profits earned by the company, to be progressively increased in successive years. (Id. at p. 610.) Plaintiff alleged after his employment was terminated four years later, defendants refused to give him an explanation as to how his profits had been calculated and denied him access to the company books and records; he further alleged defendants paid related family members large sums of money to which they were not entitled and sought an accounting of the gross earnings and business expenditures of the company. (Id. at p. 611.) The trial court dismissed his declaratory relief action on grounds that because the contract had been terminated plaintiff did not state a cause of action for declaratory relief. (Id. at p. 613.) The California Supreme Court reversed, noting plaintiff's complaint had stated a cause of action for an accounting under the contract and for a money judgment. (Id. at p. 613.) It concluded the plaintiff was entitled to a trial and a judgment on the issues framed by the pleadings. (Id. at p. 614.) Kessloff does not involve an action under the UCL, and thus does not recognize the discretionary power of the court that exists in the present case. It simply does not show an accounting was mandated under plaintiffs' UCL cause of action.

D. Sufficiency of the Evidence

Plaintiffs finally assert the trial court's ruling is not supported by substantial evidence. Their sufficiency of the evidence argument is confusing. Plaintiffs first argue the substantial evidence rule cannot be invoked because the trial court did not resolve the factual disputes before it. To the extent they refer to the court's statement of decision, we have already rejected that claim. Plaintiffs then maintain there is no evidentiary support for the trial court's finding that the jury, in order to reach its contract damage award, relied on the defendants' testimony about their accounting. According to plaintiffs, this is so because "by defendants [sic] own admissions during trial . . . Plaintiffs established that the defendants had not accounted for all the profit." By this argument plaintiffs ignore the abundant testimony from Julia Rysewyk as to how she prepared her accounts, and defendants' testimony about the profits they calculated from the projects, which the jury obviously credited. For this reason, plaintiffs' sufficiency of the evidence argument fails.

DISPOSITION

The judgment and postjudgment order are affirmed.



O'ROURKE, J.

WE CONCUR:



McCONNELL, P. J.



AARON, J.