Heller v. Pillsbury Madison & Sutro (50 Cal. App. 4th 1367, 1996)

Opinion

WOODS, J.

Plaintiff Philip Heller appeals from the postjudgment order awarding costs, and the judgment entered for defendant law firm Pillsbury Madison & Sutro and individual defendants, Pillsbury partners T. Neal McNamara, Charles Patterson, Walter Stafford and Rodney Peck. Heller had filed the instant action as a result of his expulsion from the Pillsbury firm. Heller contests the preliminary court hearing where the court found the law firm’s 1992 partnership agreement, providing for expulsion of partners, fully integrated and binding on Heller. He also challenges the trial court’s nonsuit on four of his causes of action and the judgment under Code of Civil Procedure section 630, subdivision (f) following a mistrial resulting from a deadlocked jury on the remaining cause of action before the jury. Heller additionally contests the trial court’s dismissal of his accounting cause of action.

Factual Background

In January 1990, Heller joined the Pillsbury Madison & Sutro law firm as a lateral partner in the firm’s Los Angeles office. This San Francisco firm had some 225 partners. Soon thereafter, Heller signed the firm’s 1990 partnership agreement.

Either immediately or soon after Heller became a Pillsbury partner, he brought in CB Commercial and the musical group New Kids on the Block as new clients. Defendant Stafford, the managing partner of Pillsbury’s Los Angeles office in 1990, received billing credit for Pillsbury’s legal work for CB Commercial.

A year later, in January 1991, Pillsbury merged with the Lillick & McHose law firm. This merger agreement was incorporated into the 1991 partnership agreement which Heller signed.

The next month, in February of 1991, Heller appeared in the Los Angeles magazine in an article entitled Why L.A. Men Won’t Commit. The article described Heller as an attorney at Pillsbury, included a photograph of Heller leaning against the Porsche car he owned at the time, and quoted Heller as stating that he dates “ ‘an embarrassing number of women.’ ”

That same month, on February 14, Heller met Edward Stead, vice-president and general counsel of Apple Computer, Inc. At the time, Heller knew that Pillsbury partner Barbara Creed was doing some work for Apple. Heller later learned that Creed was the billing attorney for the work she did for Apple.

As of February or March 1991, Heller periodically sent Stead letters which he copied to Creed. Later in the year, in a letter dated December 9, Heller sent Stead an outline of a proposal for the Pillsbury firm to handle Apple’s employment law cases. Heller did not send Creed a copy of his proposal. A few days later, in a letter dated December 16, Creed sent Denise Rocha, chief counsel of human resources at Apple, a different proposal for Pillsbury to represent Apple in employment matters.

Upon receiving a copy of the proposal prepared by Creed, Heller told Stead to discard Heller’s letter dated December 9.

Apple decided not to have Pillsbury do its legal work, because of what looked like a lack of coordination at Pillsbury and because the Pillsbury partners appeared to be disorganized.

Meanwhile, in 1991, Heller met with Jack Douglas, the general counsel of the Reebok company known for making athletic shoes. Douglas offered Pillsbury through Heller legal work, and informed Heller there was a prior case involving an opposing party represented by the Lillick firm now merged with Pillsbury. After Heller met with Douglas, he spoke with attorney Amy Hogue, who had handled the prior case. Hogue initially told Heller that the prior case was over and that there would be no problem doing work for Reebok. Later, however, Hogue said there was a conflict of interest in that Hogue did some work for Reebok’s insurer Seaboard Surety.

In a letter dated October 25,1991, Reebok’s attorney John Mitchell stated that Douglas asked Mitchell to send Heller materials for a possible lawsuit against Reebok’s insurers, including Seaboard Surety, to recover expenses related to a patent infringement action. Although the materials Mitchell sent Heller included Reebok’s claim against Seaboard, Heller did not try to determine if Seaboard’s name was run through Pillsbury’s computer system to check for possible conflicts of interest. Heller only learned of the conflict when Hogue later called and told him that she did some work for Seaboard.

In April 1991, Heller met with Stafford regarding Heller’s billable hours. At the time, Stafford was still managing partner of Pillsbury’s Los Angeles office. After the meeting, Stafford sent Heller a copy of a memorandum dated April 16, 1991, which Stafford prepared for McNamara, chairman of the firm’s executive committee. The memorandum stated that if Heller did not produce at least 1,800 billable hours by the end of the year, and if he did not generate new business, then the law firm would ask Heller “to leave or take a reduction in points.”

According to the firm’s time analysis report dated December 31, 1991, by early 1991, Heller was working at a pace that annualized to about 1,200 billable hours, which was about 1,000 hours less than Heller estimated he would produce. In addition, only $230,522 of his total $368,715 in billings for 1991 was actually collected.

John Hansen, a Pillsbury partner and member of the firm’s compensation committee, interviewed Heller in 1991. After the interview, Hansen told Heller on December 6, 1991, that Heller was being reduced in partner points for 1992. Hansen explained that Heller’s performance, including low billable hours for 1991, declined. Hansen also told Heller that the compensation committee was concerned about the decrease in Heller’s collections and the quality of his work.

On February 24, 1992, Heller signed the 1992 partnership agreement. He had the opportunity to review the agreement before he signed it.

The 1992 agreement provided that the law firm’s “Executive Committee” “shall be the policy making and governing authority of the Firm.” The agreement authorized the Executive Committee to expel partners.

In a letter dated May 21, 1992, and addressed to Michael Halloran, executive vice-president and general counsel of Bank of Amercia, Heller wrote that Halloran’s picture in the American Lawyer magazine “is almost a caricature of what Michael Lewis described in Liar’s Poker [sic] as ‘One big swinging dick.’ ” A copy of this letter was sent to the bank’s chief executive officer, Richard Rosenberg. At the time of the letter, Bank of America was one of Pillsbury’s most important clients, generating between $6 million to $8 million in annual revenue.

On May 27,1992, Heller sent Halloran a printed piece of material entitled “Why I Fired My Secretary.” This material described a husband who agrees to go to his secretary’s apartment and who disrobes, only to find his wife and children there.

According to David Grimes, director of administration of Bank of America’s legal department, Grimes called Peck, a member of Pillsbury’s Executive Committee, and asked that no more letters be sent to Rosenberg. Grimes made the call at Halloran’s request. Grimes believed that if Heller’s letters did not stop, Bank of America would no longer use Pillsbury’s legal services.

Peck then on June 1 spoke with Heller. Peck asked Heller about any other correspondence sent to Bank of America, but Heller did not tell Peck about the May 27, 1992, mailing. Peck also instructed Heller not to communicate with Bank of America without coordinating with Peck first. Heller asked Peck whether Heller should apologize to Halloran or Rosenberg, and Peck replied in the negative.

Peck subsequently, on June 1 or 2, told McNamara that Heller sent the letter dated May 21, 1992. Peck said the letter upset Halloran and Rosenberg.

Contrary to Peck’s instructions and without first informing Peck or sending him a copy, Heller sent Rosenberg an apology letter dated June 2, 1992.

At the Executive Committee’s June 9, 1992, meeting, the committee approved termination of Heller as a partner of the firm. McNamara, Peck and other committee members, including defendant Patterson, attended the meeting. According to McNamara, the Executive Committee discussed Bank of America, Apple, Reebok, Heller’s performance and the Los Angeles magazine article.

The next day, on June 10, Grimes telephoned Peck to inform him about the May 27 and June 2 mailings from Heller. Grimes warned that if Bank of America received one more letter, it would take Pillsbury off its approved list of outside counsel.

That same day, Peck left a message for McNamara about Grimes’s call, stating that Bank of America was “in an uproar” over Heller’s correspondence and that Halloran threatened to not give work to Pillsbury if the firm did not do something about its “loose cannon.” Peck stated that he thought Heller needed to be removed promptly “to eliminate any prospect that in some apparently authorized way he can act on behalf of the firm. I think he needs to be told that we will sue his ass or do something bad to him if he tampers with our client relationships further in the manner in which he has done."

On June 11,1992, McNamara telephoned Heller while he was returning to the office from a deposition. McNamara told Heller to come to an office conference room. McNamara and Patterson met privately with Heller. During the meeting, Peck was called, and he participated in the meeting on a speaker telephone. McNamara told Heller that if he did not resign from Pillsbury, Heller would be expelled. Heller refused to resign, and so was expelled from the firm.

After Heller was expelled, Pillsbury changed the message on Heller’s voice mail. The new message stated that Heller was no longer with the firm, that clients should speak to Patterson, and that other callers could reach Heller at home. The new message included Heller’s home telephone number.

On June 16, 1992, the firm changed Heller’s voice mail message pursuant to his request that same day.

After Heller’s departure, McNamara asked all Pillsbury partners to be discreet and not to pass on rumors. McNamara requested a legal newspaper reporter not to print an article on Heller’s departure, and no story was printed. All inquiries from persons outside the firm, as well as inside, were to be directed to Patterson so that there would be only one source. However, Patterson knew of at least one occasion where he was asked to allow other partners to talk to a prospective employer of Heller, and Patterson allowed those partners to talk to the prospective employer. Patterson also knew of two times when a prospective employer of Heller spoke to Pillsbury partners whom Heller used as references.

In the summer of 1992, a Michael Choppin asked Heller to do legal work for IDM, a corporation which started having business relations with Heller while he was at Pillsbury. Heller was unable to accept the work. As a result, he lost $2 million in legal fees from IDM.

Following Heller’s expulsion, he looked for a position as a partner at other law firms. After prospective employers indicated they would contact Pillsbury or knew particular attorneys affiliated with Pillsbury, Heller was not offered employment. According to Heller, when he contacted the law firm Keck, Mahin & Kate, which had previously offered him a position as a partner in 1989, Heller was told, “The people at Pillsbury are saying bad things about you.”

In October 1992, Patterson received a telephone call from a Michael Madda of the Baker & McKenzie law firm, which began interviewing Heller in the summer. Madda asked whether Heller was still a Pillsbury partner, and Patterson replied that he was not. Patterson told Madda that the firm was discussing with Heller the terms of his departure, and that to be fair to both sides, Patterson did not think he could comment further. Patterson did not tell Madda that Heller was expelled. Madda also spoke to Pillsbury partner Jerry English, whom Heller received permission to use as a job reference.

Afterward, on November 6, 1992, Baker & McKenzie sent Heller a draft offer letter containing the terms of a draft lateral partner contract.

Madda told Heller that English sounded as though he were programmed, that Patterson had “stonewalled” Madda, and that Madda’s conversations with Patterson were very uncomfortable. Baker & McKenzie did not offer Heller a position with the firm.

In 1993, Attorney Raymond Riley interviewed Heller for a partner position at a law firm then called Phillips, Nizer, Benjamin, Krim & Riley. Heller told Riley that he was on leave from Pillsbury to work on President Clinton’s campaign for the office of United States President, and that Heller later decided not to return to Pillsbury. Riley did not call Pillsbury to verify Heller’s statements. Heller joined the Phillips firm in May 1993.

Procedural Background

On June 10, 1993, Heller filed a complaint against the Pillsbury law firm, McNamara, Patterson and Stafford in response to his expulsion from the firm. Following defendants’ demurrer to the complaint, Heller filed on October 7,1993, a first amended complaint adding Peck as a defendant. This complaint asserted six causes of action; breach of contract, breach of implied-in-law contract, breach of fiduciary duty, intentional interference with prospective economic advantage, intentional infliction of emotional distress, and an accounting.

On November 5, 1993, all five defendants answered Heller’s first amended complaint.

Defendants later moved for summary judgment or alternatively summary adjudication of issues. On December 28, 1994, Superior Court Judge Stephen Lachs held a hearing on the motion. Judge Lachs denied the motion, finding that “a trier of fact should be left to determine whether the power to expel was inadvertently left out of the partnership agreement or was never meant to be an express power of the committee.”

On March 27, 1995, Heller’s counsel paid the fee required when a party demands a jury trial.

On May 2, 1995, the case was transferred for trial to Retired Judge Macklin Fleming.

On May 8, 1995, Judge Fleming ordered the issue of whether the partnership agreement was fully integrated to be tried before the court as phase one of the trial.

After hearing the evidence offered in phase one of the trial, Judge Fleming on May 12,1995, ruled that the 1992 partnership agreement is unambiguous, integrated and of full force. He also ruled that the parol evidence rule applies, and that Heller’s expulsion was in accordance with the agreement.

Phase two of the trial began on May 15, 1995.

At trial, Heller testified he was “very disappointed” when he saw the Los Angeles magazine article “because it really doesn’t reflect who I am or what I’m about.” Heller admitted that the photograph accompanying the article was taken for the magazine.

At the close of Heller’s case on June 16, 1995, defendants moved for nonsuit. On June 19, the trial court partly granted defendants’ motion. The court dismissed with prejudice Heller’s first cause of action for breach of express contract, second cause of action for breach of implied contract, third cause of action for breach of fiduciary duty, fifth cause of action for intentional infliction of emotional distress, and punitive damages claims. The court also dismissed with prejudice Heller’s fourth cause of action for intentional interference with prospective economic advantage as to defendants McNamara, Peck and Stafford. On July 10, 1995, the trial court issued an order granting nonsuit.

On June 21, 1995, after the two remaining defendants, the Pillsbury law firm and Patterson, presented their case, they moved for a directed verdict. The trial court did not grant the motion.

That same day, outside the jury’s presence, the trial court discussed with counsel what jury instructions it planned to give. The court refused to give instructions requested by Heller’s counsel.

On June 22, 1995, following counsel’s closing arguments and the trial court’s jury instructions, the jury began deliberations on Heller’s cause of action for intentional interference with prospective economic advantage.

Judge Fleming tried Heller’s sixth cause of action for an accounting. On June 26, 1995, the trial court dismissed this cause of action with prejudice, holding Heller’s claim for an accounting lacked merit. The trial court subsequently issued a dismissal order on July 10, 1995.

Also on June 26, 1995, the jurors announced they, were deadlocked. Consequently, the trial court discharged the jury and declared a mistrial.

On July 5, 1995, defendants Pillsbury and Patterson noticed a motion for entry of judgment for them pursuant to Code of Civil Procedure section 630, subdivision (f).

On July 25, 1995, the trial court issued an order granting defendants’ motion.

That same day, the trial court entered a judgment against Heller and in favor of all the defendants.

On July 21, 1995, Heller moved for the trial court to either strike defendants’ memorandum of costs or alternatively tax certain costs items. A hearing on the motion was set for August 7, 1995. Partly granting the motion, the trial court awarded defendants $884 in filing and motion fees, $1,041.88 in jury fees, $48,700.76 in deposition costs, $1,973.80 in service-of-process costs, $5,220 in witness fees, $2,223.50 in recorder fees during trial, and $4,766.13 in costs of models, blowups and photocopies of exhibits. The costs award totaled $64,810.07.

Discussion

Heller asserts the following five major arguments on appeal:

1. The trial court exceeded its jurisdiction and committed reversible error by ordering a phase one court trial instead of jury trial on whether the 1992 partnership agreement was fully integrated and binding, and whether the Pillsbury Executive Committee had the power to expel partners without cause;

2. The trial court erred in granting a partial nonsuit;

3. The trial court erred in dismissing Heller’s accounting cause of action;

4. The trial court erred in granting defendants’ motion for judgment under Code of Civil Procedure section 630, subdivision (f), after the mistrial due to the deadlocked jury; and

5. The trial court erred in awarding defendants certain costs.

We discuss the arguments in the order they are raised.

1. Did the trial court exceed its jurisdiction and commit reversible error by ordering a phase one court trial on whether the 1992 partnership agreement was fully integrated and binding, and whether the agreement authorized the Pillsbury Executive Committee to expel partners without cause?

Heller contends that Judge Fleming countermanded Judge Lachs’s denial of summary judgment by ordering that the trial court first determine the issue of whether the partnership agreement was fully integrated, before the jury tried the case. We disagree. Heller is correct that the law and motion judge found that “a trier of fact should be left to determine whether the power to expel was inadvertently left out of the [1991] partnership agreement or was never meant to be an express power of the [Executive] committee.” However, a trier of fact can be a jury or a court, and the law and motion judge did not prohibit the trial judge from acting as a trier of fact.

Further, “[t]he purpose of summary judgment is to penetrate evasive language and adept pleading and to ascertain, by means of affidavits, the presence or absence of triable issues of fact. [Citation.] Accordingly, the function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves. [Citation.]” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].)

Moreover, the issue of a contract’s integration “must be resolved preliminarily by the court, not a jury, and only after the court finds the agreement not integrated may parol evidence be admitted to amplify its terms.” (Mobil Oil Corp. v. Handley (1978) 76 Cal.App.3d 956, 961 [143 Cal.Rptr. 321].) Accordingly, subdivision (d) of Code of Civil Procedure section 1856, which sets forth the parol evidence rule applied by the trial court, states: “The court shall determine whether the writing is intended by the parties as a final expression of their agreement with respect to such terms as are included therein and whether the writing is intended also as a complete and exclusive statement of the terms of the agreement.”

Therefore, the trial court properly ordered that it, and not a jury, first determine the issue of whether the partnership agreement was fully integrated.

Review of the trial court’s determination is subject to “the same deference on appeal as any other ruling of the court on an issue of fact.” (Mobil Oil Corp. v. Handley, supra, 76 Cal.App.3d at p. 961, citing Salyer Grain & Milling Co. v. Henson (1970) 13 Cal.App.3d 493 [91 Cal.Rptr. 847].) Under the applicable “substantial evidence” test, we review the record in the light most favorable to respondents, we do not weigh the evidence, and we indulge all intendments and reasonable inferences which favor sustaining the trier of fact’s findings. (Id. at p. 500.)

Heller claims the 1992 partnership agreement is not integrated, noting the absence of an integration clause in the agreement. However, the parties’ intent that a written agreement be integrated “may be manifested even in the absence of an explicit statement to that effect. . . .” (Wagner v. Glendale Adventist Medical Center, supra, 216 Cal.App.3d 1379, 1386.) Moreover, Code of Civil Procedure section 1856 does not require an integration clause. Instead, the statute requires a court to look to the parties’ intent, In examining the parties’ intent, the trial court in this case properly and necessarily considered the circumstances surrounding the partnership agreement.

Two of Heller’s witnesses, who were former Pillsbury partners, testified in the “phase one” preliminary court trial that they understood the Executive Committee had power to expel partners. None of Heller’s witnesses testified that there was a collateral partnership agreement for 1992.

Similarly, defendants’ witnesses testified in phase one of the trial that the Executive Committee inherited Pillsbury’s former management committee’s power to expel. These witnesses included Michael Steel, a Pillsbury attorney who became a partner in 1989 after seven years as an associate and who was not part of the firm’s management.

Defendant McNamara testified that he drafted Pillsbury’s partnership agreements, and that he inserted a “reserve powers clause” because he thought “it would be comforting to the partners at large to know clearly that they had the . . . reserve power to override the Executive Committee in the event that we should ever have ... a runaway Executive Committee which was damaging the firm in some respect.” McNamara explained that the reserve power to expel a partner “would be somewhat meaningless if it was not the intent to grant to the Executive Committee the power to expel a partner.”

The 15-page agreement contained clear terms consistent with the intent testified to in phase one of the trial. For example, article II of the 1992 agreement explicitly provided that the “Executive Committee shall be the . . . governing authority of the Firm.” Article II, entitled Firm Governance, specified that, among other things, the Executive Committee “shall . . . admit or expel partners . . . .” Article VIII, entitled Reserved Powers, stated: “Notwithstanding the power delegated to the Executive Committee under Article n, the Regular Partners reserve the right to . . . expel any Partner from the partnership without cause .... [f] It is understood and agreed that the Executive Committee shall exercise the powers delegated to it under Article II unless and until the Partners exercise their reserved powers under this Article VIII.” Article X, Disputes, of the 1992 partnership agreement provided: “In the event of a dispute of any kind between the parties to this Agreement, or between any of the parties to this Agreement and the representative ... of any . . . expelled Partner, ... it is agreed that the decision of the Executive Committee of the Firm shall be final, binding and conclusive upon all persons interested in such dispute.”

While Code of Civil Procedure section 1856 does not exclude evidence on the three issues of mistake of the written agreement, validity of the agreement or fraud, Heller’s first amended complaint contained no causes of action raising these issues. In fact, the complaint validated the agreement by attaching a copy of the 1992 partnership agreement, and alleging that “Plaintiff and Defendants were subject to the provisions” of this agreement.

In addition, the record indicates no evidence of fraud or invalidity of the 1992 partnership agreement. Although Heller alleged that respondents misrepresented and concealed facts leading him to believe the 1992 partnership agreement did not authorize the Executive Committee to expel partners, these allegations do not amount to fraud. Moreover, Heller’s misrepresentation claim lacks merit because the only purported misrepresentation with respect to the 1992 agreement is McNamara’s cover memorandum accompanying the agreement. This one-page memorandum requested partners to return signed copies of the agreement to McNamara, and noted that an exhibit to the agreement was incomplete and that the “1992 Agreement is not materially different from the 1991 Agreement.” Significantly, the memorandum does not state that it summarizes the agreement. Moreover, even if the 1991 and 1992 agreements were not identical, the substance with respect to partner expulsion was the same, and Heller does not refute that he read neither the 1991 nor 1992 draft or final agreements.

Reviewing the record in the light most favorable to respondents, we conclude substantial evidence supported the trial court’s determination that the 1992 partnership agreement was fully integrated, thereby barring parol evidence contrary to that agreement.

2. Did the trial court err in granting a partial nonsuit?

Heller next contends the trial court erred in granting a partial nonsuit for defendants.

“A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] ‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor.” ’ [Citation.] A mere ‘scintilla of evidence’ does not create a conflict for the jury’s resolution; ‘there must be substantial evidence to create the necessary conflict.’ [Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 [253 Cal.Rptr. 97, 763 P.2d 948].)

“Although a judgment of nonsuit must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is ‘some substance to plaintiff’s evidence upon which reasonable minds could differ. . . [Citations.] Only the grounds specified by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit. [Citations.]” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839 [206 Cal.Rptr. 136, 686 P.2d 656].)

Heller contends the trial court erred in granting nonsuit on Heller’s cause of action for express contract breach because even if the Executive Committee could expel partners, the committee’s power was limited to expulsion for cause. However, this contention lacks merit, since the partnership agreement not only contains no language requiring expulsions for cause, but also states the partners’ reserved powers include the right to “expel any Partner from the partnership without cause . . . .” (Italics added.) Although article II, which sets forth the Executive Committee’s powers, does not specify that expulsion may be without cause, article VIII so specifies. Accordingly, the Executive Committee’s power to expel was not limited to expulsion for cause.

In addition, Heller contends he presented evidence that his expulsion was in bad faith. Since this contention concerns a contract’s implied covenant of good faith and fair dealing, we consider this issue in the context of the nonsuit on Heller’s second cause of action for breach of implied-in-law contract.

Heller argues that defendants did not comply with the Uniform Partnership Act, and that by failing to do so, defendants’ expulsion of Heller was by definition in bad faith. However, the Uniform Partnership Act does not prohibit partners from entering into partnership agreements, and in fact recognizes such agreements. For example, Corporations Code section 15018, which concerns partners’ rights and duties in relation to their partnership, specifies that these rights and duties are “subject to any agreement between them . . . .”

Accordingly, the Washington State Court of Appeals upheld the expulsion of two law partners as pursuant to a partnership agreement. The agreement did not require that the expelled partners receive notice prior to the law firm’s executive committee’s two meetings regarding the expulsion, and the agreement was silent as to whether expulsion shall be with or without cause. (Holman v. Coie (1974) 11 Wn.App. 195 [522 P.2d 515, 517, 519, 72 A.L.R.3d 1209].) The appeals court held that the partnership agreement’s express language “must be controlling .... Where terms of a contract, taken as a whole, are plain and unambiguous, the meaning is to be deduced from the contract alone.” (Id. at p. 521.) Although the Holman case was decided in another jurisdiction, we consider this decision persuasive authority because Washington state applies the Uniform Partnership Act. (Bartlome v. State Farm Fire & Casually Co. (1989) 208 Cal.App.3d 1235, 1242 [256 Cal.Rptr. 719]; 9 Witkin, Summary of Cal. Law (9th ed. 1989 supp.) Partnership, § 1, p. 112.)

Where, as here, clear and integrated law partnership agreements contain clauses authorizing expulsions through “the guillotine approach,” and law partners are expelled pursuant to the agreements, there is no breach of the duty of good faith. (Holman v. Coie, supra, 522 P.2d at pp. 523-524.)

Just as Heller identifies no express terms of the 1992 agreement that defendants allegedly breached, he does not offer evidence showing defendants breached any implied-in-law contract. Therefore, the trial court’s grant of nonsuit was proper.

With respect to his first cause of action for express contract breach, Heller also argues that defendants violated their fiduciary duty to Heller by subjecting him to continued liability after his expulsion, citing Corporations Code section 15038. Since this argument concerns breach of fiduciary duty, we consider this issue in the context of the nonsuit on Heller’s third cause of action. This argument lacks merit because section 15038, which concerns partners’ rights upon their partnership’s dissolution, clearly does not apply here. (Cagnolatti v. Guinn, supra, 140 Cal.App.3d at p. 48.) In addition, nowhere in Heller’s complaint does he allege wrongful exposure to partnership liabilities.

Again, the express terms of the 1992 partnership agreement are controlling. These terms provided for dissolution and compensation of the expelled partner. Article IX, entitled Limitations, stated: “Each of the Partners hereby expressly agree . . . that the payments provided to be made to him ... in the event of . . . expulsion . . . represent the full purchase price and total value of his or her interest in the partnership and its property . . . , and shall be in full settlement of his or her interest in the partnership . . . .”

Heller also argues that the trial court erroneously adopted two arguments made by defendants. Heller claims defendants’ first argument is that since there was no breach of agreement, there was no breach of fiduciary duty to plaintiff. He maintains the second argument is that “all claims of breach of fiduciary duty on grounds other then [sz'c] for expulsion relate to fairness of partnership compensation and disagreements about the internal operation of the partnership, both of which ostensibly do not give rise to a fiduciary duty as a matter of law.”

Although partners owe each other and the partnership a fiduciary duty, this duty “applies only to situations where one partner could take advantage of his position to reap personal profit or act to the partnership’s detriment.” (Leigh v. Crescent Square, Ltd. (1992) 80 Ohio App.3d 231 [608 N.E.2d 1166, 1170].) Relying on Leigh and Holman, supra, 522 P.2d 515, the Texas Court of Appeals held that the fiduciary duty as to partner expulsions is not to expel in bad faith. (Bohatch v. Butler & Binion (Tex.Ct.App. 1995) 905 S.W.2d 597, 602.) The court in Bohatch ruled that die phrase “bad faith” in the context of an expelled partner “means only that partners cannot expel another partner for self-gain.” (Ibid.)

Like Heller, the plaintiff in Bohatch was a law partner expelled from a law firm. (Bohatch v. Butler & Binion, supra, 905 S.W.2d at pp. 599, 600.) Colette Bohatch claimed her partners expelled her partly to acquire her partnership interest. The Texas appeals court rejected this claim. “Bohatch’s partnership share was so small, however, that the jury could not have reasonably concluded that the partners’ expulsion of Bohatch was motivated by their desire to acquire her partnership share.” (Id. at p. 604.)

Similarly, in the present case, the evidence does not show that defendants expelled Heller to enrich themselves at Heller’s expense. While his expulsion from the firm increased all Pillsbury partners’ profit shares, given the large number of partners in 1992* and the fact that Heller was earning toward the lower end of the firm’s compensation range, the increase was insubstantial.

More importantly, even with evaluating the evidence in the light most favorable to Heller, the evidence shows that the Executive Committee expelled Heller because of a loss of trust in him. “The foundation of a professional relationship is personal confidence and trust. Once a schism develops, its magnitude may be exaggerated rightfully or wrongfully to the point of destroying a harmonious accord. When such occurs, an expeditious severance is desirable. To imply terms not expressed in this partnership agreement frustrates the unambiguous language of the agreement and the result contemplated.” (Holman v. Coie, supra, 522 P.2d at p. 524.) We find the Washington’s appellate court’s analysis equally applicable here. Accordingly, we uphold the grant of nonsuit on Heller’s cause of action for breach of fiduciary duty.

With respect to the nonsuit on Heller’s fifth cause of action for intentional infliction of emotional distress, as Heller points out, the California Supreme Court set forth the four elements of a cause of action for intentional infliction of emotional distress: “ ‘(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.’ ” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [160 Cal.Rptr. 141, 603 P.2d 58], quoting Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 296 [131 Cal.Rptr. 547].)

However, Heller did not meet his burden of proof on the first element. During the June 11, 1992, meeting with McNamara, Patterson and Peck when Heller was told he was expelled, no one attacked Heller personally. Instead, McNamara explained the firm could not trust Heller because he ignored Peck’s June 1, 1992, directive not to communicate to Rosenberg of Bank of America. According to Heller’s testimony at trial, McNamara explained that because of Heller, Bank of America threatened to fire Pillsbury. McNamara also cited the Apple, Reebok and Los Angeles magazine incidents as other reasons for Heller’s termination from the firm. Early in the meeting, McNamara told Heller that he no longer had access to the computers, that Heller’s key card was canceled, and that if Heller was not out by noon the next day, there would be a lock on his office door. In addition, McNamara told Heller that he would get his monthly check, be reimbursed the capital he paid the firm, and receive additional money. Heller testified that Patterson said a few times, “‘This is your punishment. Accept it.’” Heller also testified that McNamara called the “Why I Fired My Secretary” piece of paper “trash” and threw it at Heller.

The activities of McNamara, Patterson and Peck do not constitute outrageous conduct. Although the 1992 partnership agreement did not require the Executive Committee to explain the reasons for their decision to expel Heller, McNamara told Heller why he was expelled. Significantly, the meeting was held in the conference room outside the presence of others, and Heller did not testify that McNamara, Patterson or Peck raised their voices to such an extent that they could be heard outside of the conference room. The evidence therefore shows that the firm attempted to maintain Heller’s privacy. Obviously, it can be distressing for any individual when that individual is told to leave. However, the distress of being terminated does not by itself give rise to a viable emotional distress cause of action. Further, to hold the defendants’ conduct outrageous could open the floodgates of litigation any time a partner is terminated from a partnership. Such a holding would disturb partnerships, which by their nature require trust between the partners.

Nor did Heller show that the guard posted at his office upon his expulsion engaged in outrageous conduct. As testified by Heller at trial, the guard was a young man who worked in the mail room. The guard said he was instructed not to leave Heller, and he followed Heller to the elevator. We find no fault in Pillsbury’s decision to use a guard. To the contrary, it is a reasonable business practice to monitor the activities of someone just expelled from the office, in order to protect the business from any possible damage from the expelled individual.

As for defendants’ postexpulsion activities, Heller did not meet his burden of showing outrageous conduct. Heller’s first amended complaint alleged, as part of his cause of action for intentional infliction of emotional distress, that defendants “delayed releasing to Heller the proceeds of his capital account and other payments until March, 1993, and only after lengthy negotiations with Heller’s legal counsel.” In fact, Heller admitted he was fully reimbursed his capital account less than a year from his expulsion, which was well within the three-year deadline set forth in the partnership agreement.

Although defendants untimely made the 10 percent payment provided in the 1992 partnership agreement, defendants were only approximately three and a half months late in this payment. Such a delay is not outrageous.

Since Heller failed to satisfy this first requisite element of a cause of action for intentional infliction of emotional distress, there is no need to consider whether he met the remaining requisite elements of this cause of action.

For the same reason, we do not address Heller’s challenges of the trial court’s exclusion of certain pieces of evidence and its consideration of defendants’ affirmative defense in ruling on their motion for nonsuit.

With respect to the trial court’s grant of nonsuit on punitive damages, Heller argues the trial court improperly limited his punitive damages claim to his fourth cause of action for intentional interference with prospective economic advantage. In support of this argument, Heller cites Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376 [89 Cal.Rptr. 78, 47 A.L.R.3d 286] and Sequoia Vacuum Systems v. Stransky (1964) 229 Cal.App.2d 281 [40 Cal.Rptr. 203]. Heller also contends that the trial court erroneously eliminated his punitive damages claim from his fourth cause of action for intentional interference with prospective economic advantage.

As Heller points out, punitive damages are recoverable for intentional infliction of emotional distress and breach of fiduciary duty. (Fletcher v. Western National Life Ins. Co., supra, 10 Cal.App.3d at p. 404; Sequoia Vacuum Systems v. Stransky, supra, 229 Cal.App.2d at p. 289.) Therefore, the trial court erred in limiting Heller’s punitive damages claim the way it did. However, this error was harmless because Heller failed to meet his burden of proof with respect to the third and fifth causes of action.

Moreover, the trial court correctly recognized that a punitive damages claim requires proof by “clear and convincing evidence.” Civil Code section 3294, subdivision (a) allows for punitive damages in a tort action “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice . . . .” Subdivision (c) defines the terms “malice,” “oppression” and “fraud” for section 3294 purposes: “[U (1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others, (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. [