Filed 6/5/13 Guess v. Significance Foundation CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

L. DONALD GUESS, D060100

Plaintiff and Respondent,

v. (Super. Ct. No. 37-2009-00095286-CU-CO-CTL)

THE SIGNIFICANCE FOUNDATION,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, William S.

Dato, Judge. Affirmed.

Gilbert Kelly Crowley & Jennett, David G. Molinari and Joy L. Shedlosky for

Defendant and Appellant.

Keith H. Rutman for Plaintiff and Respondent.

Plaintiff L. Donald Guess (Guess) incurred substantial attorney fees to two law

firms defending him in a federal court action (the federal civil action). In the federal civil

action, the government sought injunctive relief against Guess and against a family of entities, including defendant The Significance Foundation (Foundation), in which Guess

had served in numerous capacities, including an as officer and director of Foundation.

After the federal civil action was resolved in favor of the defendants, Guess sought

indemnification from Foundation for the attorney fees he incurred in defending the

federal civil action. When Foundation declined to indemnify Guess, he filed the present

action against Foundation. The dispute was tried to the court, which ruled in favor of

Guess's claims for indemnity.

On appeal, Foundation asserts the trial court's judgment must be reversed for three

reasons. First, Foundation contends that as a matter of law the legal expenses incurred by

Guess in defending the federal civil action were not incurred "by reason of [Guess] being

or having been a Director [or] officer" of Foundation, and therefore his legal expenses

fall outside the scope of the indemnity provisions of Foundation's bylaws. Second,

Foundation contends that because Guess paid a substantial portion of the legal fees by

obtaining loans from third parties, and there was no evidence at trial that Guess remained

liable to repay those loans, he did not suffer any "expenses or liabilities" for which

Foundation owed indemnification. Finally, Foundation argues the trial court improperly

admitted into evidence the legal billings of Guess's attorneys.

2 I

FACTUAL AND PROCEDURAL BACKGROUND1

A. The Underlying Context

Guess, who began his career as a dentist, developed a program for fellow medical

professionals that came to be known as "xélan." The xélan program was part financial

management and planning, part tax planning, and part life philosophy. Over time, Guess

set up various entities as part of the xélan family of companies, nearly all of which were

for-profit companies handling insurance, pension and investment matters, and Guess was

typically an officer and/or director of these entities and generally retained an ownership

interest in these entities.

Foundation was the one nonprofit exception that played a role in some of the tax

planning aspects of the overall xélan program. Foundation was formed in the late 1990's

as an Oklahoma nonprofit corporation and, until late 2004, Guess served both as its

president and as a member of its board of directors. Foundation's bylaws included a

provision under which Foundation, to the extent permitted by the laws of the State of

Oklahoma, was to provide indemnification:

" 'against all reasonable expenses and liabilities, including counsel fees, necessarily incurred by or imposed upon [them] in connection with any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative . . . , to which [they] may be made a party or in which such person may become involved by reason of being or having been a Director,

1 Our factual background is derived largely from the trial court's statement of decision because neither party contests the sufficiency of the evidence supporting the trial court's factual determinations. 3 officer, [or] employee [of Foundation] if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of [Foundation].' "

Shortly after Foundation's formation, the Internal Revenue Service (IRS) approved

Foundation as a tax-exempt, publically supported charity. However, years of

entanglements with the IRS followed.

B. The Federal Civil Suit

In the early 2000's, Foundation became aware that it was being audited by the IRS

in connection with its application for permanent tax-exempt status. Sometime after the

audit/examination, over one hundred donors to Foundation received notices their tax

returns were under examination; Foundation believed there had been improper theft of

confidential donor information by the IRS.

In early November 2004 the federal government executed a search warrant on the

San Diego, California, headquarters for the various xélan entities and, at the same time,

filed the federal civil suit. That suit named numerous defendants, including Guess (along

with several other individuals involved in the xélan family of companies), Foundation

and numerous other xélan entities, and asserted claims sounding in fraud. In conjunction

with the federal civil suit, the government sought and obtained an ex parte restraining

order freezing the assets of the xélan entities and appointing a receiver, and setting a

hearing on a preliminary injunction for early December 2004.

The month between execution of the search warrant and the hearing on the

preliminary injunction was described by the trial court as a "frenetic" period for the

attorneys representing Foundation, Guess and the other involved defendants. Legal

4 representation was provided by Chicoine & Hallett (which assumed the supervisory role

for the legal team representing the named defendants, including Foundation) and

Mr. Lipman (who was primarily responsible for overseeing potential criminal issues of

the involved defendants). These sets of attorneys billed Guess for their services, and it

was the fees billed by these attorneys over the period from November 4 through

December 15, 2004 (the date of the federal court's ruling on the government's request for

a preliminary injunction) that formed the bulk of the fees for which the trial court in the

present case awarded indemnity to Guess.

Guess sought over $230,000 from Foundation, which apparently represented fees

billed to Guess for the period from November 4, 2004, through October 3, 2006. The

trial court separated the fees into three time frames. In the first time frame (from

November 4 through November 9, 2004), the trial court found that because the attorneys

were the only attorneys effectively representing Foundation and the other entities during

this period, and the attorneys were engaged in "triage/damage-control," attempting to

determine the nature of the government's case, the services helped all of the entities

(including Foundation) to shape their litigation strategy, and therefore the billings for all

services performed during the first week (November 4 through November 9, 2004)

should be included as fees incurred by Guess by reason of his being an officer or director

of Foundation. The trial court concluded, as to the second period (November 10 through

December 15, 2004), that because the Chicoine & Hallett and Lipman bills involved

services performed in the context of a cooperative and unified defense strategy, most of

the work inured to the benefit of all of the entities, including Foundation. However, the

5 court also noted that some of the work involved issues peculiarly applicable to entities

other than Foundation, and therefore reduced by 35 percent the fees requested for this

period. Finally, for the period after January 2005, the court awarded only those fees as to

which the billing entries for the rendered services referred to Foundation or persons

associated with Foundation, and rejected Guess's argument that the remaining services

performed after January 2005 were fees incurred "by reason of" Guess having been an

officer or director of Foundation.

In response to the federal civil action, Foundation's board (along with its attorney,

Mr. Will) convened an emergency meeting on November 9, 2004. Prior to this meeting,

Guess and Will discussed the government's case and Guess's proposal that Guess should

resign to prevent the government from contending that his continued involvement in

Foundation was a reason for closing Foundation. They also discussed that Guess should

be indemnified for fees incurred to defend actions he took as an officer or director of

Foundation, and Will agreed to place these issues before the Foundation's board. The

minutes of the meeting reflected Foundation's board (1) agreed it was in Foundation's

best interests for Guess to resign, (2) was informed that Foundation's bylaws and

applicable law required Foundation to indemnify its officers and directors, and (3) agreed

Foundation should advance legal expenses to Guess for defense of his actions taken by

him of behalf of Foundation. No funds were ever advanced so Guess borrowed to pay

the bills from Chicoine & Hallett and from Mr. Lipman, and agreed to repay these loans

when he was able to do so.

6 Chicoine & Hallett and Mr. Lipman, supervising a team of separate attorneys

retained by Foundation and other entities in a coordinated effort under a joint defense

agreement, opposed the government's motion and lawsuit. This coordinated effort was

successful: the federal court denied the government's request for a preliminary injunction,

in part because the government had not shown likely success on the merits of the

government's claims. The government then dismissed the case as to all defendants,

including Foundation and Guess, and Foundation obtained an award of its separate

attorney fees from the government but, based on a strategic decision by the defense team,

Guess did not separately seek any attorney fees award.2

C. The Present Lawsuit and Judgment

In the fall of 2008 Guess demanded Foundation indemnify him for the attorney

fees, but Foundation refused. Guess subsequently filed the present action and, at trial,

sought approximately $85,000 as fees paid to Chicoine & Hallett and approximately

$46,000 as fees paid to Mr. Lipman's firm.

At trial, Foundation contended Guess had no right to indemnity for the requested

fees because he could not establish a necessary predicate that he incurred the fees "by

reason of being or having been" an officer or director of Foundation rather than in

relation to other entities in the xélan family of companies. Foundation also asserted

2 Although the government continued looking into matters surrounding the xélan family of companies and program, as of mid-2007 attorneys assured Foundation there was no information suggesting Foundation was subject to an ongoing criminal investigation. Although Guess was indicted in late 2008 on charges of filing a false personal income tax return, and was later convicted on that charge, his personal tax returns were not in issue during the period that the federal civil suit was pending. 7 Guess could not show another necessary predicate, i.e. that he had acted "in good faith

and in a manner [he] reasonably believed to be in or not opposed to the best interests of

[Foundation]." Foundation also claimed Guess could not establish a right to indemnity

because he could not demonstrate he was legally obligated to repay the loans he incurred

to satisfy the attorney fees. Foundation also asserted at trial that the evidence would

show Guess waived his right to indemnity, and did not mitigate his damages. The trial

court rejected these defenses, and on appeal Foundation does not challenge these aspects

of the judgment.

The trial court's proposed statement of decision found Guess had acted in good

faith and in a manner he reasonably believed to be in the best interests of Foundation.

The court also concluded that, under the parties' practical construction of the indemnity

clause, whether Guess had incurred the fees "by reason of" having been an officer or

director of Foundation was essentially a question of allocation: to what extent were the

fees attributable to defending Foundation's interests in the federal civil suit rather than to

defending the interests of other xélan entities entangled in the federal civil suit. The court

then closely examined the billings and apportioned the fees between those attributable to

defending Foundation's interests in the federal civil suit and those attributable to

defending other xélan entities (or Guess personally) in the federal civil suit, and awarded

Guess indemnity in the amount of approximately $95,000. After making additional

findings and conclusions in response to Foundation's objections to the proposed statement

8 of decision,3 the court affirmed its statement of decision and entered judgment in favor of

Guess.

II

ANALYSIS

A. The Interpretation Claim

Foundation argues the court erred when it interpreted the indemnity provision in

Foundation's bylaws as covering the attorney fees sought by Guess.

Legal Standards

The rules governing the role of the court in interpreting a written instrument are

well established. The interpretation of a contract is a judicial function. (Pacific Gas &

Electric Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 39-40 (Pacific Gas

& Electric).) In engaging in this function, the trial court seeks to "give effect to the

mutual intention of the parties as it existed" at the time the contract was executed. (Civ.

Code, § 1636.) Ordinarily, the objective intent of the contracting parties is a legal

question determined solely by reference to the contract's terms. (Civ. Code, § 1639

["[w]hen a contract is reduced to writing, the intention of the parties is to be ascertained

3 For example, Foundation objected that the court (1) had not responded to the statute of limitations defense interposed by Foundation to Guess's claim for indemnity, (2) had not explained why Guess could assert an indemnity claim when there was no evidence he was liable to repay the loans he took out to pay the attorney fees bill, and (3) had not included an explanation of the court's evidentiary rulings on Foundation's hearsay and lack of foundation objections to the attorney fees bills. The court rejected the first two claims, and admitted the documents over Foundation's evidentiary objections. 9 from the writing alone, if possible"]; Civ. Code, § 1638 [the "language of a contract is to

govern its interpretation"].)

Although a court generally may not consider extrinsic evidence varying or

contradicting the clear and unambiguous terms of a written, integrated contract (cf.

Principal Mutual Life Ins. Co. v. Vars, Pave, McCord & Freedman (1998) 65

Cal.App.4th 1469, 1478), extrinsic evidence is admissible to interpret an agreement when

a material term is ambiguous. (Pacific Gas & Electric, supra, 69 Cal.2d at p. 37 [if

extrinsic evidence reveals that apparently clear language in the contract is in fact

susceptible to more than one reasonable interpretation, then extrinsic evidence may be

used to determine the contracting parties' objective intent].) Thus, when the meaning of

the words used in a contract is disputed, the trial court engages in a three-step process.

First, it provisionally receives any proffered extrinsic evidence relevant to prove a

meaning to which the language of the instrument is reasonably susceptible. (Ibid.) If,

considering the extrinsic evidence, the language is reasonably susceptible to the

interpretation urged, the extrinsic evidence is then admitted to aid the court in its role in

interpreting the contract. (Id. at pp. 39-40.) One type of extrinsic evidence that carries

particular weight is how the parties construed the contract before the dispute arose.

(Universal Sales Corp. v. Cal. etc. Mfg. Co. (1942) 20 Cal.2d 751, 761 ["when a contract

is ambiguous, a construction given to it by the acts and conduct of the parties with

knowledge of its terms, before any controversy has arisen as to its meaning, is entitled to

great weight, and will, when reasonable, be adopted and enforced by the court"].)

10 On appeal, "[o]ur review of the trial court's interpretation of the agreement is

governed by the settled rule that where extrinsic evidence has been properly admitted as

an aid to the interpretation of a contract and the evidence conflicts, a reasonable

construction of the agreement by the trial court which is supported by substantial

evidence will be upheld." (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746-747;

Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) We defer to the trial

court's construction if it was a reasonable construction of an ambiguous clause, and is

supported by substantial evidence, when the trial court's ruling was based on conflicting

evidence as to the intention of the contracting parties.

Analysis

We conclude substantial evidence supports the trial court's interpretation that the

intent of the indemnity provision in Foundation's bylaws was that, when an officer or

director is required to expend legal fees to defend actions he or she undertook in his or

her capacity as an officer or director of Foundation, the indemnity clause was triggered as

long as the actions taken by the officer or director were undertaken in good faith.

Certainly, the language of the bylaws is reasonably susceptible to that interpretation,

because the indemnity provision is triggered when an officer or director is required to

defend him- or herself because ("by reason of") of his or her involvement with

Foundation ("being or having been a Director [or] officer [of Foundation]") and good

faith actions in that capacity ("if such person acted in good faith and in a manner such

person reasonably believed to be in or not opposed to the best interests of [the

Foundation]"). Moreover, before the dispute arose, Foundation's Board placed the same

11 gloss on the language of the indemnity clause, because the Board agreed (shortly after the

federal civil suit naming both Foundation and Guess commenced) Foundation should

provide Guess with advances to cover his legal expenses to defend the actions he took on

behalf of Foundation, subject to the condition that he provide assurances such advances

were expended only on Foundation-related issues.

Foundation's argument on appeal appears to be that, as a matter of law, the only

interpretation to which the indemnity language is reasonably susceptible is that a director

or officer is entitled to indemnification only where his or her liability is "derivative and

secondary to [Foundation's] liability" and he or she was named as a defendant in the

litigation "solely because he [or she] held a position as an officer or director," and does

not apply if the litigation pleaded that the officer or director engaged in some affirmative

conduct alleged to be wrongful. We are not persuaded by this construction. First,

Foundation cites no authority for this stilted construction of the indemnity language.

Second, this construction ignores that the language contemplates indemnity for legal

costs will apply even to litigation pleading that the officer or director had engaged in

some affirmative conduct in his or her capacity as an officer or director, because the

language specifies the officer or director may obtain indemnity for defense costs as long

as his or her affirmative conduct was "in good faith and in a manner such person

reasonably believed to be in or not opposed to the best interests of [the Foundation.]"

Such a "good faith" condition would be surplusage under Foundation's construction of the

language because, under Foundation's construction, indemnity would be unavailable if

the litigation alleged the officer or director engaged in any affirmative conduct on which

12 the litigation was based. Finally, this construction is contrary to the evidence that, before

the present controversy arose, Foundation agreed to advance legal fees to Guess to defend

the action even though there were allegations Guess had engaged in affirmative conduct

on behalf of Foundation, which provides evidence that Foundation understood the

language called for indemnity notwithstanding the allegations that Guess had engaged in

affirmative conduct on behalf of Foundation. (City of Hope National Medical Center v.

Genentech, Inc. (2008) 43 Cal.4th 375, 393 ["[a] party's conduct occurring between

execution of the contract and a dispute about the meaning of the contract's terms may

reveal what the parties understood and intended those terms to mean"].)

We conclude there was substantial evidence to support the interpretation that the

indemnity clause required Foundation to indemnify Guess for legal fees (at least to the

extent those fees were attributable to defending Foundation's interests in the federal civil

suit rather than to defending actions taken on behalf other xélan entities enmeshed in the

federal civil suit) even though the federal civil suit alleged, in part, that Guess's actions in

his capacity as an officer or director of Foundation gave rise to the litigation against

Foundation and Guess.

Foundation also briefly asserts it was error to award indemnity because the focus

of the federal civil suit was Guess's alleged perpetration of a tax fraud, which is excluded

from the indemnity clause because it does not satisfy the good faith/best interests

13 condition to indemnity.4 However, this contention ignores that the trial court rejected

Foundation's claim Guess had not acted in good faith and in a manner he reasonably

believed to be in the best interests of Foundation, and Foundation has forfeited any

contention that the trial court's finding on this issue is unsupported by the evidence.

When an appellant challenges a finding for insufficiency of the evidence to support it, the

appellant is required to set forth in the appellant's opening brief all the material evidence

on that issue or finding and not merely evidence favorable to his or her position.

(Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) "In furtherance of its

burden, the appellant has the duty to fairly summarize all of the facts in the light most

favorable to the judgment. [Citation.] Further, the burden to provide a fair summary of

the evidence 'grows with the complexity of the record. [Citation.]' " (Boeken v. Philip

Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.)

An appellant must state fully, with transcript citations, the evidence claimed to be

insufficient to support the trial court's findings. (In re Marriage of Fink (1979) 25 Cal.3d

877, 887.) Unless this is done, the asserted error is deemed waived. (Foreman & Clark

Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) "An appellate court will consider the

sufficiency of the evidence to support a given finding only after a party tenders such an

issue together with a fair summary of the evidence bearing on the challenged finding,

4 Foundation also argues the trial court's interpretation violates Civil Code section 2773, which provides, "An agreement to indemnify a person against an act thereafter to be done, is void, if the act be known by such person at the time of doing it to be unlawful." Foundation cites nothing to suggest this assertion was interposed below, and an argument not raised at trial may not be raised for the first time on appeal. (Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 830.) 14 particularly including evidence that arguably supports it." (Huong Que, Inc. v. Luu

(2007) 150 Cal.App.4th 400, 409-410.) Furthermore, "[a] party who challenges the

sufficiency of the evidence to support a finding must set forth, discuss, and analyze all

the evidence on that point, both favorable and unfavorable" (Doe v. Roman Catholic

Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218), and a failure to do so

permits a reviewing court to deem waived any substantial evidence contention. (Ibid.)

Based on our review of the record on appeal, Foundation has not set forth a sufficient

statement of facts stating all of the material evidence, both favorable and unfavorable, on

the issue of whether Guess's actions satisfied the good faith criteria. By way of example

only, the trial court cited evidence that (1) Guess testified he believed his actions on

behalf of Foundation were appropriate, (2) his acts on behalf of Foundation were vetted

by legal counsel for Foundation, and (3) his acts were approved by Foundation's Board.

Moreover, although the federal civil suit alleged fraud, the federal court denied the

government's request for a preliminary injunction based in part on its conclusion the

government could not show "likely success on the merits" and, after the suit containing

the allegations of fraud was dismissed, the federal court awarded attorney fees based (in

part) on the finding the "government's legal and factual position on the scope and basis of

the pre-trial injunctive relief . . . was not substantially justified." (U.S. v. Guess (S.D.

Cal. 2005) 390 F.Supp.2d 979, 989.) These facts are relevant to (and supportive of the

finding on) the issue of whether the good faith/best interests condition was satisfied but

are almost entirely ignored in Foundation's opening brief. Instead, Foundation has cited

only the evidence it contends would support its position that Guess did not act in good

15 faith. Foundation's appellate assertion that the indemnity award should be reversed

because the good faith/best interests condition was not satisfied is deemed forfeited.

B. The Loan Claim

Foundation asserts the judgment must be reversed because there was no evidence

Guess was "liable to pay or repay any attorney fees" to Chicoine & Hallett or to

Mr. Lipman's firm, and therefore the indemnity obligation of Foundation under the

bylaws never arose. However, the parties did not dispute below that Guess was billed by

the attorneys for services rendered in connection with the federal civil suit, and Guess

testified he paid the bills of those firms and was able to fund those payments by

borrowing money. Because the bylaws required Foundation to indemnify Guess "against

all reasonable expenses and liabilities, including counsel fees, necessarily incurred" by

Guess, there was substantial evidence to support the conclusion Guess "incurred" (and

indeed paid) counsel fees within the meaning of the bylaws.

Foundation's argument is that because Guess borrowed from third parties to fund

the payments, Foundation is somehow excused from its obligations to reimburse Guess

for the attorney fees he incurred absent proof that Guess had repaid (or remained liable to

repay) those loans. Foundation cites no pertinent authority for this contention--i.e. that

Foundation was excused from its obligations because Guess was able to call on collateral

sources to help him pay the liabilities ultimately owed by Foundation--and analogous law

undermines Foundation's argument.

In Arambula v. Wells (1999) 72 Cal.App.4th 1006, a plaintiff was injured by a

tortfeasor and one of the obligations imposed on tortfeasors is to pay the plaintiff any lost

16 earnings resulting from the injury. However, the trial court instructed the jury not to

award damages for lost earnings because the plaintiff's employer was a family business

run by plaintiff's brother, and the brother gratuitously continued to pay plaintiff even

though plaintiff could not work. Although the brother "wished" to be reimbursed, there

was no explicit requirement or agreement by plaintiff to refund the money, and the trial

court reasoned that absent proof the plaintiff was obligated to reimburse his employer, the

plaintiff could not recover lost wages because he had no lost wages. (Id. at pp. 1008-

1009.) The appellate court reversed, concluding it was error to instruct the jury not to

award plaintiff damages for lost earnings merely because the injured party had collateral

sources willing to assist him through difficult times. The appellate court reasoned the

collateral source rule should be applied equally to charitable giving as to other sources

because, among other reasons, it would encourage charitable giving, it would preclude

the obligor from gaining a windfall and defeating the donor's intended object of the gift,

and because the injured party (if fully compensated) may be motivated to repay the donor

even though under no legal compulsion to do so. (Id. at pp. 1012-1014.)

The same rationale applies here. There is substantial evidence Guess "incurred"

legal fees within the meaning of Foundation's bylaws, and there is substantial evidence he

in fact paid those bills. The mere fact Guess's friends and family agreed to loan him

money to assist him through financially difficult times, which he agreed to repay "when

able," would become a windfall to Foundation if it could rely on their charity to escape its

obligation to indemnify Guess. Because Foundation cites no contrary legal authority, we

17 conclude that how Guess funded payment of the legal fees is irrelevant to Foundation's

obligation (under its bylaws) to pay the legal fees he incurred.

C. The Evidentiary Claim

Foundation asserts the court erred when it overruled Foundation's objection to

admission into evidence of the bills of Chicoine & Hallett. Guess offered the bills as

business records (admissible under the business records exception to the hearsay rule

codified in Evid. Code, § 1271) along with a declaration from a custodian of records

authenticating the bills. Foundation objected to the bills and asserted the proffered

declaration authenticating the bills was insufficient because she lacked personal

knowledge as to the accuracy of each entry within the bills.

Foundation asserts on appeal that, before a document may be admitted under the

business record exception to the hearsay rule embodied in Evidence Code section 1271,

the custodian of records must lay the requisite foundation specified in subdivisions (a)

and (b) of that section, that foundation must be provided by live testimony from the

custodian at trial, and the requisite foundation may not be established by declaration

because the declaration is itself hearsay for which no exception exists. Foundation's

argument is meritless. When copies of business records are produced pursuant to a

subpoena duces tecum, the records are admissible at trial if accompanied by a declaration

from the custodian who avers the same foundational facts (e.g. the foundational facts

required by Evid. Code, § 1271) as the custodian would have been required to establish

by live testimony if called as a witness at trial. (Evid. Code, §§ 1560-1562.) Foundation

makes no effort to show the requisite procedures under Evidence Code section 1560 et

18 seq. were not followed, or that the contents of the custodian's declaration lacked some

essential foundational fact for admission of the business records if that custodian testified

to the same facts at trial. We conclude the trial court did not err by admitting the bills of

Chicoine & Hallett into evidence.

DISPOSITION

The judgment is affirmed. Guess is entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

19