52_Cal[1]._App._4th_645,_60_Cal._Rptr._2d_677,

52_Cal[1]._App._4th_645,_60_Cal._Rptr._2d_677, - 1 of 1...

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1 of 1 DOCUMENT WEBER, LIPSHIE & CO., Plaintiff and Appellant, v. PAUL D. CHRISTIAN, De- fendant and Appellant. No. B075060. COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DI- VISION FOUR 52 Cal. App. 4th 645 ; 60 Cal. Rptr. 2d 677; 1997 Cal. App. LEXIS 77; 97 Cal. Daily Op. Service 846; 97 Daily Journal DAR 1211 February 4, 1997, Decided NOTICE: [***1] Opinion certified for partial publication. * * Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts IV A, B and D. SUBSEQUENT HISTORY: Review Denied April 23, 1997, Reported at: 1997 Cal. LEXIS 2196. PRIOR HISTORY: APPEALS from a judgment and orders of the Superior Court of Los Angeles County. Super. Ct. No. BC036977. David P. Yaffe, Judge. Original Opinion of May 30, 1996, Reported at: 1996 Cal. App. LEXIS 495. DISPOSITION: The order granting a new trial is reversed. The order denying Christian's motion for judgment notwith- standing the verdict is affirmed. The judgment on the jury verdict is affirmed as to liability but reversed as to damages. The trial court is directed to conduct such further proceedings as may be necessary to determine the measure of damages in accordance with the formula contained in the partnership agreement, and to enter judgment against Christian in that amount. Weber, Lipshie is awarded costs on appeal. CASE SUMMARY: PROCEDURAL POSTURE: Both parties sought review of the decision of the Superior Court of Los Angeles (Cali- fornia). Defendant partner appealed from the judgment and order that denied his motion for judgment notwithstanding the verdict based on the lack of substantial evidence that a restrictive covenant was reasonable and enforceable. Plaintiff firm appealed from the order that granted a new trial to determine whether plaintiff had good cause to expel defendant. OVERVIEW: Defendant partner signed a partnership agreement when he joined plaintiff firm's practice. The agree- ment included a choice of New York or California law clause, a restrictive five-year covenant, and a liquidated damage provision. After defendant was expelled from plaintiff's partnership, he formed his own practice. When plaintiff sought damages pursuant to the liquidated damages provision, defendant claimed the damages were unreasonable. The court af- firmed the lower court's finding of defendant's liability but reversed the actual damages determination pursuant to Cal. Civ. Code § 1671(b). Given the presumption of § 1671(b) and defendant's burden of proof, there was no public policy reason to void the damage clause. The court reversed the lower court's order granting a new trial because the validity of the restrictive covenant did not rest on good cause for expulsion. The court refused to consider defendant's new theory that restrictive covenants were void pursuant to Cal. Bus. & Prof. Code § 16600. Defendant could not use a choice of law tactical decision to claim prejudicial error. The action was remanded for a determination of damages in accordance
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with the partnership agreement.
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