*1 In the summer of 2000, OZ Optics Limited (OZ Optics) and OZ Optics Incorporated (OZ USA) hired Zeynep Hakimoglu as the vice-president of Business Development of OZ Optics and the president of OZ USA. One of Hakimoglu's job responsibilities was to advise OZ Optics' founder and chief executive officer, Omur Sezerman, about whether OZ Optics should acquire other companies. In December 2000, Hakimoglu suggested that OZ Optics purchase a company called Bitmath.
In May 2001, OZ Optics acquired Bitmath and Sezerman placed Hakimoglu in charge of running it. Under Hakimoglu's leadership, Bitmath did not meet any of its deadlines and did not generate any revenue. Hakimoglu's relationship with Sezerman began to deteriorate; in October 2001, OZ Optics terminated Hakimoglu's employment and entered into a separation agreement with her. Approximately one month later, OZ Optics obtained information that Hakimoglu—during her employment at Bitmath—had been planning to start a new company that would compete with OZ Optics. OZ Optics shut down Bitmath.
In December 2001, OZ Optics, OZ USA, and Bitmath (collectively plaintiffs) sued Hakimoglu for, among other things, breach of her employment contract, breach of fiduciary duty, and fraud (concealment). Hakimoglu cross-complained, contending that OZ breached the separation agreement. Before trial, the parties engaged in a lengthy and acrimonious discovery battle regarding the production of one of Hakimoglu's laptop computers: plaintiffs moved for terminating and monetary sanctions, contending Hakimoglu intentionally destroyed evidence on the computer before producing it. In August 2005, the court granted plaintiffs' motion for monetary sanctions and awarded them $90,000.
In March 2007, a jury found Hakimoglu liable for breach of her employment contract, breach of fiduciary duty, and fraud (concealment) and awarded plaintiffs $370,600. The jury also determined that plaintiffs had breached the terms of the separation agreement and awarded Hakimoglu $4,513. Hakimoglu filed a motion for a new trial and a motion for judgment notwithstanding the verdict (JNOV). OZ moved for JNOV. The court denied all of the motions and both parties timely appealed.
Hakimoglu challenges the judgment on several grounds. She contends: (1) the court erred in determining she was a fiduciary of the plaintiffs; (2) there was insufficient evidence to support the jury's findings that she concealed material information from plaintiffs and that they reasonably relied upon her; (3) the jury instructions on intent were “unclear and inadequate;” (4) the verdict was “inconsistent;” (5) the admission of expert testimony on computer forensics was prejudicial; (6) the award of monetary sanctions was an abuse of discretion; and (7) there was insufficient evidence to support the award of damages against her.
Plaintiffs cross-appeal. They claim the court: (1) erred in denying their JNOV motion; (2) abused its discretion in refusing their special jury instruction on Hakimoglu's intentional destruction of evidence and in excluding evidence of her intentional violation of the court's discovery order; and (3) abused its discretion in limiting the award of sanctions to $90,000.
FACTUAL AND PROCEDURAL BACKGROUND
We provide only a brief overview of the facts here. We provide additional factual and procedural details as germane to the discussion of the parties' specific claims.
In 1985, Sezerman and his wife started OZ Optics, a Canadian company that designs, manufactures, and markets fiber optic components. OZ Optics considers itself the “industry leader in the area of polarization control, having introduced over 50 different types of PMD components that significantly minimize the polarization related effects in fiber optic cable.”
OZ USA is an American subsidiary of OZ Optics. By 2000, OZ Optics was growing quickly and Sezerman began looking for “key management team personnel” to help the company grow and to create a physical presence in California, where many of OZ Optics's clients were located.
In June 2000, Sezerman hired Hakimoglu as president of OZ USA and vice-president of Business Development of OZ Optics. When Hakimoglu began working at OZ Optics and OZ USA in August 2000, she made “strategic decisions” about hiring. She also conducted research on potential target companies and formulated opinions regarding whether OZ should invest in, or purchase, those companies. She presented her opinions to Sezerman.
In December 2000, Hakimoglu brought Bitmath to Sezerman's attention. She explained that Bitmath had a strong group of engineers who were developing a PMD compensator and that Bitmath had developed revenue-generating DVD technology. Hakimoglu assured Sezerman that he could trust her judgment and that a deal with Bitmath was “worth pursuing.”
In May 2001, OZ Optics acquired Bitmath for $20 million. After the acquisition, Hakimoglu was in charge of running Bitmath and with “integrat[ing] Bitmath to OZ [Optics].” “[S]he acted as the president. Everybody reported to her at Bitmath. She ran the company.” Under Hakimoglu's leadership, however, Bitmath did not generate any revenue, new products, or new sales after May 15, 2001.
Hakimoglu's relationship with Sezerman began to deteriorate in the summer of 2001. In September 2001, Sezerman decided to terminate Hakimoglu's employment. The following month, Hakimoglu and OZ entered into a separation agreement which provided that OZ Optics would pay Hakimoglu a sum equal to 12 weeks of her salary and assume the lease for her Mercedes.
Danny Chi assumed Hakimoglu's responsibilities after her departure. In November 2001, Carl Smith, OZ Optics's chief financial officer, traveled to California to fire Chi. After Smith informed Chi that his employment had been terminated, Chi “grabbed a ... bankers box that he wanted to take with him.” Smith informed Chi that he could not take the documents. Smith reviewed the documents and “found a number of documents that caused [him] to completely rethink what [OZ Optics] should do with Bitmath.” The documents indicated that Hakimoglu, Chi, and Jerry Walker had planned to meet “with venture capitalists [and] pitch[ ] a polarization mode solution” to compete with OZ Optics. Smith also found an executive summary that Hakimoglu prepared in June 2001 regarding the new venture which she planned to present to investors. Smith conferred with Sezerman. Shortly thereafter, the two men shut down Bitmath because they were concerned that other Bitmath employees could be planning to start a competitor.
*3 In December 2001, OZ filed a complaint against Hakimoglu and others. The operative complaint alleged ten causes of action, including breach of contract, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, and fraud (concealment). Hakimoglu cross-complained against plaintiffs and Sezerman alleging, among other things, that plaintiffs and Sezerman breached the terms of the separation agreement by failing to pay her “severance and cell phone bill and failing to assume the Mercedes lease obligations.”
Plaintiffs' claims for breach of contract, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, and fraud (concealment) were tried to a jury in December 2006, along with Hakimoglu's cause of action for breach of the separation agreement. Plaintiffs dismissed their claim for breach of the covenant of good faith and fair dealing during trial.
In March 2007, the jury found Hakimoglu liable for breach of her employment contract, breach of fiduciary duty, and concealment in the context of the merger. The jury awarded plaintiffs $370,600. The jury also found OZ Optics liable for breaching the separation agreement and awarded Hakimoglu $4,513.
Plaintiffs moved for JNOV asking the court to increase the damages to $2,219,018 to “Correct The Jury's Disregard Of The Law And Evidence” and to set aside the jury's award of $4,513 on Hakimoglu's cross-complaint. Hakimoglu moved for JNOV and for a new trial. In her JNOV motion, Hakimoglu contended that there was insufficient evidence to support the award of damages and the jury's finding regarding concealment. In her new trial motion, Hakimoglu claimed the verdict was inconsistent, the damages were excessive, and the trial court improperly admitted evidence. The court denied all of the posttrial motions.
Hakimoglu contends the court erred in “finding” that she was fiduciary because she was not an officer of OZ Optics or OZ USA. Specifically, she contends that the issue of whether she was an officer of OZ Optics “as opposed to merely a titular President of a non existent OZ subsidiary, was a question of fact that should have been (and was not) left to the jury to decide[.]”
Before trial, plaintiffs urged the court to conclude Hakimoglu was an officer of the plaintiffs as a “matter of law.” They also requested a special jury instruction informing the jury that Hakimoglu was an officer of plaintiffs and, as such, owed a fiduciary duty to them. Hakimoglu opposed the request, contending it was “up to the jury to decide if Hakimoglu was a fiduciary” because “[i]t is not clear that she is a fiduciary as a matter of law.” The court granted plaintiffs' request and distributed the jury instruction it intended to use.
After hearing a lengthy argument from Hakimoglu's counsel, the court concluded: “What I am absolutely convinced of as a matter of law is this: If we sent this case to the jury on a breach of fiduciary duty cause of action and they came back and determined that [ ] Hakimoglu was not a fiduciary as their threshold finding, I would have to grant [plaintiffs] a new trial.” The court ultimately instructed the jury that Hakimoglu was a “corporate officer” and owed a fiduciary duty to OZ Optics.
*4 California law defines a fiduciary of a corporation as “an officer who participates in management of the corporation, exercising some discretionary authority[.]” (GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 420 (GAB
); overruled on other grounds in Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1153–1154 (Reeves
); see also Bancroft–Whitney Co. v. Glen (1966) 64 Cal.2d 327, 345 [corporate officers “stand in a fiduciary relation to the corporation”].)
is on point. In that case, the defendant, a regional vice-president at the plaintiff's corporation, received an offer to work at a rival company. (GAB, supra, 83 Cal.App.4th at pp. 413–414.) Before leaving the plaintiff to work at the competitor, the defendant successfully recruited several of the plaintiff's employees to join the competitor. (Id. at pp. 414–415.) The plaintiff filed a lawsuit claiming the defendant breached his fiduciary duty to the corporation by soliciting the plaintiff's employees to leave while he was still employed there. (Id. at p. 413; see also Reeves, supra, 33 Cal.4th at p. 1153.) The trial court refused to instruct the jury that the defendant owed the plaintiff “a fiduciary duty by virtue of his position as a corporate officer” and instead “treated the existence of a fiduciary duty as a question of fact for the jury.” (Id.
at p. 416.)
On appeal, the plaintiff corporation contended that the defendant owed a fiduciary duty to the corporation as a matter of law. (GAB, supra, 83 Cal.App.4th at p. 416.) The appellate court agreed. It rejected the defendant's “focus on control
[within the corporation] as the determinative factor for finding a fiduciary duty in the corporate officer context” (id. at p. 419, original italics) and held that an officer “who participates in management of the corporation, exercising some discretionary authority, is a fiduciary of the corporation as a matter of law.” (Id. at pp. 420–421.) The court continued: “Whether a particular officer participates in management is a question of fact. We expect that in most cases this test will be easily met. And, as in all legally recognized fiduciary relationships, once this factual prerequisite is established, the law imposes a fiduciary duty.” (Id. at p. 421.) The court then concluded that the defendant was a fiduciary of the plaintiff corporation because he was a regional vice-president who had the authority to develop and approve policies, develop, allocate, and monitor an expense budget, and had “ ‘final responsibility’ for matters involving the supervision and management of others, including performance appraisals, work assignments, discipline, [and] hiring....” (Id. at p. 422.)
There is ample evidence that Hakimoglu was, at minimum, an officer of OZ Optics. Her employment agreement states that she is the vice-president of Business Development of OZ Optics and the president of OZ USA. It also refers to Hakimoglu as an “Officer” of OZ Optics and requires her to “undertake the management of OZ Optics['s] general business development activities, duties incumbent on an Officer of the Company and other duties requested ... from time to time by the Chief Executive Officer of the Company[.]” Furthermore, the organizational chart for OZ Optics and OZ USA lists Hakimoglu under the “Executives” category.
*5 At trial, Hakimoglu admitted her employment agreement listed her as an officer of OZ Optics and conceded that she considered herself an officer of that company. She also testified she was a “key person” on the management team and that she owed a duty of loyalty to OZ Optics. Moreover, Hakimoglu sent emails from her work account identifying herself as the president of OZ USA.
Smith, then the chief financial officer at OZ Optics, testified that Hakimoglu was a “key member of the executive team.” And Smith explained that Hakimoglu had “authority and autonomy” as an executive at OZ Optics. Based on this evidence, we reject Hakimoglu's argument that she was not an officer of OZ Optics or OZ USA.
Hakimoglu's alternative argument is that even if she was an officer of OZ Optics or OZ USA, the court erred in determining she was a fiduciary because she did not participate in management or exercise discretionary authority. Again, we disagree. We are mindful that “something more than bare title” is required to impose a fiduciary duty: in other words, “that a ‘nominal’ officer cannot be a corporate fiduciary.” (GAB, supra, 83 Cal.App.4th at p. 420.) The something more is “participat[ion] in management of the corporation, exercising some discretionary authority.” (Ibid.
) Here, there is sufficient evidence that Hakimoglu participated in the management of OZ Optics and exercised discretionary authority. When Hakimoglu began working at OZ Optics and OZ USA, she made “strategic decisions” about hiring and firing: she made offers of employment, signed employment contracts on behalf of OZ Optics, and executed employee termination reports. Moreover, employees reported to her.
At trial, Sezerman and Smith testified that Hakimoglu conducted research on potential target companies and formulated opinions regarding whether OZ should invest in, or purchase, those companies. In the early stages of the merger negotiations between OZ Optics and Bitmath, Hakimoglu “terminated” a letter of intent and proposed new terms for OZ Optics's investment in Bitmath. She also obtained information necessary to complete the merger, participated in discussions concerning the terms of the merger agreement, and reviewed drafts of the merger agreement. She was the “go-between” between OZ and Bitmath. Finally, Oplink, the company where Hakimoglu worked after leaving OZ Optics, described Hakimoglu as having “leadership roles” at OZ Optics and OZ USA and noted that she was “integral in the expansion of OZ's technological interests” and was “one of the leaders in maintaining the Company's aggressive goal of developing the most advanced and cost efficient products....”
this evidence was susceptible of only one inference: that Hakimoglu was an officer of OZ Optics who participated in the management of OZ Optics and exercised discretionary authority in managing the corporate affairs of that entity. That Hakimoglu reported to Sezerman and acted at his behest does not mean that she did not participate in management or exercise discretionary authority. As a result, the trial court correctly determined Hakimoglu was a fiduciary of OZ Optics as a matter of law.
*6 Next, Hakimoglu contends there was insufficient evidence to support the jury's finding that she concealed material information from plaintiffs. She also claims that there was insufficient evidence that plaintiffs reasonably relied on her. Our review in this regard begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which supports the jury's findings. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.) We have no power to judge the value of the evidence, weigh the evidence, consider the credibility of witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. Our role is to determine whether the evidence before the trier of fact supports its findings. (Ibid.
) The evidence, however, must be of ponderable legal significance. It must be reasonable, credible, and of solid value. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
The elements of a fraud based on concealment are: “ ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’ “ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748 (Hahn
), quoting Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612–613.) Hakimoglu's argument is somewhat difficult to follow, but she seems to ask this court to impose a higher standard for imposing concealment liability, in other words, to require plaintiffs to prove that she was the only
person who knew or could have known the important facts or require “a strict showing of actual intent.” She concedes, however, that there is no case law which would require a court to impose such a “heightened standard.”
To the extent Hakimoglu argues there was insufficient evidence she concealed a material fact, we disagree. At trial, plaintiffs offered evidence that Hakimoglu brought Bitmath to Sezerman's attention in December 2000 and told Sezerman that Bitmath had a strong group of engineers who were developing a PMD compensator. She also told OZ Optics that Bitmath had two revenue streams and that the company owned intellectual property that was successful. And Hakimoglu assured Sezerman that he could trust her judgment. Hakimoglu was “very, very excited” about Bitmath and told him that the deal was “worth pursuing.”
On December 17, 2000, Chi and Michael Hsu made a presentation to Sezerman, Hakimoglu, and Smith. After the meeting, Sezerman and Smith expressed their reluctance to acquire Bitmath; they thought integrating a consumer electronics company (Bitmath) into a optical components company (OZ Optics) “was quite a stretch.” Hakimoglu, however, thought that there was a “good fit” between Bitmath and OZ Optics “from a technology perspective.” Hakimoglu participated in merger discussions and reviewed drafts of the merger agreement. She also performed due diligence on Bitmath.
*7 In May 2001, OZ Optics acquired Bitmath. Before the merger, Hakimoglu knew—but did not advise OZ Optics or OZ USA—that: (1) Bitmath's technology could not be used to help OZ Optics develop a PMD compensator; (2) SunPlus, one of Bitmath's customers, was also an investor in Bitmath; (3) Bitmath planned to terminate its contract with SunPlus after the merger; (4) Bitmath's largest revenue generating contract with LuxSonor was in jeopardy because LuxSonor was in merger negotiations with another company; (5) Hsu, a board member of Bitmath, was also an investor of LuxSonor and had an incentive to exaggerate projected revenue from LuxSonor; and (6) a key Bitmath employee planned to leave Bitmath shortly after the merger. This evidence was sufficient to support the jury's finding that Hakimoglu concealed a material fact from plaintiffs.
Next, Hakimoglu contends the court should have granted her JNOV motion because she introduced evidence establishing that it was not reasonable for plaintiffs to rely on her alleged concealment. She points to evidence that plaintiffs had experienced employees who analyzed the propriety of the merger, and also to evidence that plaintiffs hired attorneys to oversee the merger.
At trial, Smith testified that he relied on Hakimoglu to provide him with certain information during the merger negotiations such as: “[g]uidance on the business. Anything that would be relevant to the customers, certainly to the extent one customer was inactive, negotiations to be acquired ... The state of mind of the company's founders that we were acquiring ... What does the business look like today? ... Has anybody resigned? Is anybody going to resign? ... The overall health of the business. Her role was to keep in touch with [Bitmath] and to communicate to us the health of the business, any change in the business, any change in the industry that she's aware of and anything significant that could have a negative impact or even a positive impact ... on the business....” Both Sezerman and Smith testified that they would not have acquired Bitmath if they had known the information Hakimoglu failed to disclose. This evidence is sufficient to support the jury's finding that plaintiffs reasonably relied on Hakimoglu's concealment.
Before trial, the parties submitted proposed jury instructions. Pursuant to the parties' request, the court delivered CACI 2203, a jury instruction pertaining to fraud by concealment, to the jury. That instruction provided as follows: “In deciding whether Ms. Hakimoglu acted with the intent to harm [OZ], you may consider whether she knew that harm to [OZ] was substantially certain to result from her conduct.” On appeal, Hakimoglu contends this jury instruction on intent was “unclear and inadequate.”
We asked for supplemental briefing on whether the doctrine of invited error bars this claim. Under the invited error doctrine, a party may not take advantage of an error committed by the court at his or her request. (Jentick v. Pacific Gas & Elec. Co. (1941) 18 Cal.2d 117, 121 (Jentick
); see also Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [the “ ‘doctrine of invited error’ is an ‘application of the estoppel principle’: ‘Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal’ on appeal”].) “ ‘It is an elementary principle of appellate law that “[a] party may not complain of the giving of instructions which he has requested. [Citation.]” [Citations.]’ “ (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1090 (Mayes
), quoting Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 255.) “ ‘The invited error doctrine applies “with particular force in the area of jury instructions.... A civil litigant must propose complete instructions in accordance with his or her theory of the litigation and a trial court is not ‘obligated to seek out theories [a party] might have advanced, or to articulate for him that which he has left unspoken.’ [Citations.]” [Citation.]' “ (Mayes, supra,
at pp. 1090–1091, quoting Stevens v. Owens–Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653.)
*8 Here, the parties jointly requested CACI 2203 and Hakimoglu indicated that it was “fine” for the court to deliver CACI 2203 to the jury. As a result, she cannot attack the verdict resulting from this instruction. (Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 667 [invited error doctrine precluded plaintiffs from challenging jury instruction on appeal; holding that “plaintiffs are responsible for the erroneous instruction ... and may not take advantage of the error by obtaining a new trial”]; see also Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 255 [appellate court will “look no further” where record demonstrates that appellant requested the challenged jury instruction].)
Hakimoglu also seems to complain that the court erred by instructing the jury with CACI 1901 because she submitted a different version of this instruction. We have reviewed Hakimoglu's proposed jury instruction on concealment and are satisfied that it differs in no material way from CACI 1901. Both instructions contain the essential elements of a concealment claim: (1) Hakimoglu knew an important fact and intentionally failed to disclose it to OZ Optics despite her duty to do so; (2) OZ Optics did not know of the concealed fact; (3); Hakimoglu intended to deceive OZ Optics by concealing the important fact; (4) OZ Optics reasonably relied on Hakimoglu's deception; (5) OZ Optics was harmed; and (6) Hakimoglu's concealment was a substantial factor in causing OZ's harm. (Hahn, supra, 147 Cal.App.4th at p. 748.)
Among other things, the special verdict form asked the jury to answer the following questions: (1) “Did Ms. Hakimoglu intentionally fail to disclose an important fact that OZ Optics did not know and could not reasonably have discovered?” and (2) “Did Ms. Hakimoglu intend to deceive OZ Optics by concealing the fact?” The jury answered yes to both questions on the special verdict. When the court polled the jury, juror 8 answered “no” to the question about whether Hakimoglu intentionally failed to disclose an important fact, but “yes” to the question about whether Hakimoglu intended to deceive OZ Optics by concealing that fact.
After polling the jury, the court stated, “Ladies and gentlemen, this does now complete your duties in this case.” The court continued, “we just want to thank you once again and you are all now released. It's been a pleasure having you here.” The jury then exited the courtroom and the following colloquy occurred between the court and counsel for Hakimoglu:
“THE COURT: Now that all the jurors are out of the courtroom, is there anything counsel would like to put on the record at this time?
[DEFENSE COUNSEL]: I did want to ask a clarification on one of the questions on the votes if that's the appropriate time.
THE COURT: It's a little late now, [counsel]. They have been released. What is it quickly before they even go? [ ] Pete, go stop the jurors from leaving. They are passing out the hallway right now.
*9 [DEFENSE COUNSEL]: I'm so sorry. I'm so sorry. I'm so sorry.
The Court: State your question because I don't know if I'm going to bring them back anyway.
[DEFENSE COUNSEL]: Your honor, I've got an answer that he [juror 8] found no fact concealed and then found it was intentionally concealed.
[DEFENSE COUNSEL]: We'll make a motion about it then, Your Honor. It seems inconsistent.
THE COURT: What do you want me to do about it?
[DEFENSE COUNSEL]: ... I ... just wanted to confirm that that was in fact the way the votes went down. That's all I was asking, Your Honor. He's confirmed that that's his vote, I didn't think I needed the jurors for that. That Juror No. 8 answered question no. 13 not whether he supported and then answered question 14 that he supported it....
THE COURT: There is nothing for this Court to talk about the jury. If [juror] No. 8 wishes to wait behind and wants to talk to you, [counsel], you are at liberty to pursue that at this time.
[DEFENSE COUNSEL]: Thank you, Judge.
THE COURT: But there is nothing contrary or inconsistent about the polling of the verdict. There were a minimum of nine jurors who agreed on each answer. That's all that is required.
[DEFENSE COUNSEL]: I'm not disputing that, Your Honor.
THE COURT: Is there anything else?
[DEFENSE COUNSEL]: No, Judge.
Hakimoglu filed a motion for new trial contending, among other things, that the “verdict contained inconsistencies on concealment.” More specifically, she argued that “the findings of Juror No. 8 were wholly inconsistent on the concealment questions,” which rendered the “verdict unsupportable as a matter of law.” Following a hearing, the court denied Hakimoglu's motion. On appeal, Hakimoglu again contends that she is entitled to a new trial because juror 8 gave inconsistent answers to two questions on the special verdict and, as a result, the verdict was “against law.” (Code Civ. Proc., § 657, subd. (6).)
In civil cases, three-fourths of the jurors—nine out of twelve—must agree on the verdict. (Cal. Const., art. I, § 16; Code Civ. Proc., § 613; see also Wegner, et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2008) § 17:31, p. 17–9.) But it “is not necessary for the same nine jurors to agree on all elements of the verdict. Thus, where a special verdict is submitted to the jury ... all jurors participate in answering each question. The identical nine need not agree on each answer.” (Wegner, et al., supra,
at § 17:32, p. 17–9, italics omitted, citing Resch v. Volkswagen of America, Inc. (1984) 36 Cal.3d 676, 682–683 (Resch
the jury returned a special verdict concluding that there was no design defect in the plaintiff's car. The jury also concluded there was a manufacturing defect, but that the defect was not a substantial factor in causing the plaintiff's injuries. (Resch, supra, 36 Cal.3d at p. 677.) “A poll of the jury revealed that ... nine of the twelve [jurors] found a manufacturing defect, but that ten of the twelve found that the defect was not a substantial factor in causing [the] plaintiff's injuries. The poll also disclosed that only seven of the ten jurors who found that the defect was not a substantial factor ... had also found that there was a defect; the remaining three [jurors] had concluded there was no defect.” (Id. at pp. 677–678.) On appeal, the plaintiff contended that the verdict was “internally inconsistent because there were not nine identical jurors who found that there was a defect and that the defect was not a substantial factor” in causing the injuries. (Id. at p. 678.)
*10 The California Supreme Court upheld the verdict and held that all nine jurors did not have to agree on each element of the special verdict. (Resch, supra, 36 Cal.3d at p. 683.) The court explained, “a juror who dissented from a special verdict finding negligence should not be disqualified from fully participating in the jury's further deliberations, including the determination of proximate cause. The jury is to determine all questions submitted to it, and when the jury is composed of twelve persons, each should participate as to each verdict submitted to it. To hold that a juror may be disqualified by a special verdict on negligence from participation in the next special verdict would deny the parties of ‘the right to a jury of 12 persons deliberating on all issues.’ [Citation.] Permitting any nine jurors to arrive at each special verdict best serves the purpose of less-than-unanimous verdicts, overcoming minor disagreements and avoiding costly mistrials. [Citation.] Once nine jurors have found a party negligent, dissenting jurors can accept the finding and participate in determining proximate cause just as they may participate in apportioning liability, and we may not assume that the dissenting jurors will violate their oaths to deliberate honestly and conscientiously on the proximate cause issue. [Citation.]” (Id. at p. 682.)
The same is true here. Nine jurors concluded Hakimoglu intentionally failed to disclose an important fact that OZ Optics did not know and could not reasonably have discovered. Nine jurors also concluded Hakimoglu intended to deceive OZ Optics by concealing that fact. That juror 8 concluded that Hakimoglu did not intentionally fail to disclose an important fact did not preclude that juror from determining whether Hakimoglu intended to deceive OZ Optics by concealing that fact. Hakimoglu contends Resch
does not apply here because “[t]hat case [ ] concerned a negligence verdict” but she has not demonstrated that Resch
was wrongly decided, nor has she established that the rule from that case applies only in negligence actions.
Hakimoglu's reliance on Stoner v. Williams (1996) 46 Cal.App.4th 986 (Williams
) is unavailing. In that case, the plaintiff sued the defendant for fraud, alleging the defendant made various intentional misrepresentations. (Id.
at p. 992.) The appellate court held that nine jurors did not have to agree on the same fraudulent act committed by the defendant, provided that at least nine of the jurors agreed that “each element of a cause of action has been proved.” (Id.
at p. 1002.) The court specifically noted that it was not deciding the issue presented in Resch:
“whether the same nine or more jurors had to agree on each of the special verdict questions.” (Williams, supra,
at p. 996, fn. 9.) As a result, Williams
has no application here.
*11 At trial, Hakimoglu testified that OZ Optics purchased a laptop computer for her to use in the course of her employment. She admitted she installed Sure Delete “scrubbing” software and removed her “personal files” with the scrubbing software before she turned the computer over to plaintiffs in response to a court order. She conceded that she knew the difference between simply deleting a file by pressing the “delete” button on the computer and removing files using a scrubbing software.
Over Hakimoglu's objection, Andrew Crain testified for plaintiffs at trial as an expert in computer forensics. Crain testified that plaintiffs hired his investigative consulting firm in December 2001 to make a mirror image of Hakimoglu's laptop computer and to “attempt to recover communications or identify files that might be relevant to the case.”
Crain conducted a forensic analysis of Hakimoglu's computer. He concluded that a program called Sure Delete had been installed on Hakimoglu's computer on September 9, 2001, and used on September 9, 2001, and September 18, 2001. Crain explained the difference between deleting a file and using Sure Delete, a “software tool that will enable a user to permanently delete files from a computer so that they will not be recoverable even with the use of forensic software tools[.]” Crain further testified that when someone uses scrubbing software to remove files, it is difficult for a forensic expert to determine which documents were removed or scrubbed. Crain, however, stated that he was able to determine that a document entitled, “Executive Summary” had been permanently deleted from Hakimoglu's computer using the Sure Delete program.
Crain testified that his firm received a second laptop computer from Hakimoglu on November 5, 2004. He analyzed that computer and determined that Sure Delete had been installed on that computer in June 2003 and used on November 1, 2004. Crain explained that he was not able to determine which files had been scrubbed, however, because the version of Sure Delete installed in June 2003 was “more effective than the prior version” installed on Hakimoglu's other computer.
He was, however, able to determine that 76,000 files had been deleted (not scrubbed). Ten files had been deleted on the morning Hakimoglu turned over the computer to Crain's firm. 19,000 files, including Powerpoint, .pdf, and Microsoft Excel and Word files, had been deleted between October 19, 2004 and November 4, 2004. Two .pdf files Crain located were entitled “OZ mission statement” and “mission statement OZ web site,” both were deleted on October 19, 2004.
In her motion for new trial, Hakimoglu contended the court improperly admitted Crain's testimony regarding her “various computer deletions[.]” She cited no cases to support her argument. On appeal—and without citing to any relevant authority—Hakimoglu again contends that “admission of speculative computer forensics evidence was prejudicial and inflammatory and should never have been allowed.” According to Hakimoglu, Crain's testimony was “devoid of any substance” and had “no probative value” because Crain could not determine exactly what was deleted from Hakimoglu's computer or whether anything relevant was intentionally erased.
*12 We reject Hakimoglu's argument because she has not supported it with citations to any relevant authority. It is well-settled that “ ‘an appellate brief “should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” [Citation.]’ “ (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545–546 (Mansell
); see also Murphy v. Murphy (2008) 164 Cal.App.4th 376, 406, fn. 15 (Murphy
); People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) “ ‘This court is not inclined to act as counsel ... for ... [Hakimoglu] and furnish a legal argument as to how the trial court's rulings' “ were erroneous. (Mansell, supra, 30 Cal.App .4th at pp. 545–546, quoting In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164.)
Even assuming that Hakimoglu did not forfeit her contention on appeal, she has not demonstrated how the admission of Crain's testimony resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid.Code, § 353, subd. (b).) Hakimoglu contends the jury could have concluded, based on Crain's testimony, that she was “dishonest and deceitful[ ] simply because she may have deleted unspecified emails and immaterial items from two different computers .” But Hakimoglu has not argued—and has certainly not established—that it is reasonably probable a result more favorable to her would have been reached if the trial court had excluded Crain's testimony. (See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) As a result, Hakimoglu has failed to satisfy her burden to establish that the admission of Crain's testimony was prejudicial.
Hakimoglu complains that plaintiffs introduced “irrelevant and prejudicial emails” where she called Sezerman a “terrorist” and mused that she hoped Sezerman would have a heart attack. We reject these complaints for two reasons. First, Hakimoglu did not object when she was questioned about these matters at trial. (See Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1674 [rejecting appellant's contention that the court erred in permitting a witness to testify; appellant failed “to identify a specific objection it made in connection with this testimony”].) Second, Hakimoglu has not supported her assertions with citations to relevant authority. (See, e.g., Murphy, supra, 164 Cal.App.4th at p. 406, fn. 15.)
During the discovery phase of the lawsuit, plaintiffs sought to inspect Hakimoglu's computers and computer storage devices. Hakimoglu did not respond to plaintiffs' written requests for production and in June 2004, a discovery referee granted plaintiffs' motion to compel. The referee ordered Hakimoglu to provide written responses, without objections, to OZ's requests for production. In August 2004, the trial court [Judge Brick] approved the discovery referee's report.
*13 In early November 2004, Hakimoglu produced her laptop computer to Crain. Crain conducted a forensic examination on the computer (which we have already described) which revealed that various computer files had been deleted and/or scrubbed from her computer just days before she produced it. In December 2004, plaintiffs moved for terminating sanctions against Hakimoglu, contending that Hakimoglu intentionally removed responsive documents and files from her computer in violation of the court's order to produce. Hakimoglu opposed the motion. She contended that terminating sanctions were unwarranted because, among other things, her “deletion and scrubbing of documents was insignificant and innocent.”
In February 2005, plaintiffs moved for monetary sanctions against Hakimoglu in the amount of $230,087. Plaintiffs argued that Hakimoglu “knowingly, deliberately and willfully has refused to produce—and has destroyed—critical evidence in her possession despite [OZ's] pending discovery requests and in direct contravention” of the court's order requiring her to produce responsive documents and things without objection. Specifically, plaintiffs contended that Hakimoglu used “scrubbing” software to destroy data on her computer after she had been ordered to produce the computer. Plaintiffs further alleged that the information on Hakimoglu's computer was critical to its claims and defenses and that Hakimoglu's conduct violated her discovery obligations and constituted a misuse of the discovery process.
The court denied plaintiff's motion for terminating sanctions. The court granted, in part, plaintiffs' motion for monetary sanctions and ordered the parties to brief the issue of the amount of monetary sanctions to be awarded. In their brief, plaintiffs contended that the amount of sanctions they sought—over $230,000—was reasonable and submitted documents showing that they paid Crain's company $39,391.16 to analyze Hakimoglu's computer and prepare testimony regarding her deletions. Plaintiffs also submitted a declaration from one of its attorneys averring that plaintiffs had incurred approximately $195,000 in attorneys fees and costs on matters “related to Hakimoglu's continued abuse of the discovery process” since June 2004. In her brief regarding the amount of monetary sanctions, Hakimoglu argued she could not afford to pay such sanctions. She also noted that her insurance carrier planned to withdraw its defense if sanctions were awarded against her and submitted documents regarding her financial condition and correspondence from her insurance carrier.
In August 2005, the court [Judge Brick] issued a 31–page order concluding that plaintiffs were entitled to recover sanctions from Hakimoglu for “reasonable fees and costs incurred as a result of [Hakimoglu's] deletion and scrubbing of files from the hard drive of her computer at a time when she was under the Court's order to produce the computer.” The court ruled, however, that plaintiffs “did not incur attorney's fees and costs as a result of [Hakimoglu's] deletion and possible scrubbing of files from her computer until [Hakimoglu] delivered the file to plaintiffs' forensic experts and the deletions and possible use of a scrubbing program were discovered.” The court also concluded that OZ could not recover the entirety of the expert fees billed by Crain because “it is apparent that [p]laintiffs hired Crain to conduct a forensic analysis of the hard drive before [it] knew of [Hakimoglu's] improper conduct.”
*14 Finally, the court concluded that a substantial portion of plaintiffs' attorney fees were attributable to OZ's decision to move for terminating sanctions without including an alternative request for monetary sanctions. The court awarded plaintiffs $90,000 in sanctions. It explained, “[t]his sum represents a reasonable amount for the attorney's fees, costs, and expert's fees incurred by [OZ] as a result of [Hakimoglu's] misuse of discovery with regard to the contents of her computer.” The court also opined that an award of more than $90,000 would be “unjust” and “could create a burden that might prevent [Hakimoglu] from defending against [OZ's] claims[ .]”
On appeal, Hakimoglu challenges the order awarding monetary sanctions. She claims the court abused its discretion in awarding sanctions because she did not intentionally disobey the court's order to produce her laptop and because the amount of sanctions awarded was punitive.
Code of Civil Procedure sections 2023.010 and 2023.030 authorize the trial court to impose monetary sanctions for the misuse of the discovery process, which includes “[m]aking an evasive response to discovery” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010, subds. (f), (g).) “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process ... pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.... If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2023.030, subd. (a).) “ “ ‘[T]he purpose of discovery sanctions “is not ‘to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits,’ “ ... but to prevent abuse of the discovery process and correct the problem presented....' “ [Citation.] Monetary sanctions encourage[ ] ‘voluntary compliance with discovery procedures by assessing the costs of compelling compliance against the defaulting party.’ [Citation.]” (Pratt v. Union Pacific Railroad Co. (2008) 168 Cal.App.4th 165, 183.)
We review the court's imposition of discovery sanctions under the deferential abuse of discretion standard. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217–1218 (Karlsson
).) “Sanction orders are ‘subject to reversal only for arbitrary, capricious or whimsical action.’ [Citations.]” (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102, quoting Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.) First, we determine “whether substantial evidence supports the factual basis on which the trial court acted[;]” then we determine whether the trial court's order was “an abuse of discretion in light of those facts.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 430.) Hakimoglu bears the burden “to affirmatively demonstrate error and, where the evidence is in conflict, this court will not disturb the trial court's findings.” (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4; see also Karlsson, supra, 140 Cal.App.4th at p. 1218.)
*15 Hakimoglu contends the court abused its discretion in awarding sanctions because she did not intentionally disobey a court order; she claims she “made an innocent error in deleting anything” from her computer. For example, Hakimoglu posits that her laptop computer could have deleted materials “on its own.” The problem with this argument is that willful conduct is not required for the imposition of monetary sanctions. “ “[Former] section 2023, subdivision (b)(1) [reenacted as section 2023.030, subd. (a) ] does not require a misuse of the discovery process to be willful before monetary sanctions may be imposed. The language of the statute simply does not allow the imposition of such a requirement.” (Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971; accord Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 260.) Here, substantial evidence supports the court's finding that Hakimoglu violated the court order to produce her laptop. The presence of the scrubbing program on Hakimoglu's computer, combined with the deletion of numerous files, supports a reasonable inference that Hakimoglu obstructed discovery in violation of the court's order.
Next, Hakimoglu contends the award of sanctions was punitive. “[T]he purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits, ... but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 301, internal quotations & fn. omitted.) A trial court may impose discovery sanctions that ‘ “ ‘are suitable and necessary
to enable the party seeking discovery to obtain the objects of the discovery he [or she] seeks but the court may not
impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.
’ “ ‘ [Citations.]” (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 331–332, original italics.)
As noted above, the court concluded plaintiffs were entitled to recover their “reasonable fees and costs incurred as a result of [Hakimoglu's] deleting and scrubbing of files from the hard drive of her computer at a time when she was under the Court's order to produce the computer,” and awarded sanctions of $90,000, far less than the amount plaintiffs requested. Here, the basis of the sanctions was not to punish Hakimoglu, but to compensate plaintiffs for a reasonable amount of fees and costs they incurred to obtain the computer and ascertain whether (and why) documents had been deleted. Hakimoglu completely ignores the fact that the court expressly stated that it was awarding $90,000 because a larger award might prevent Hakimoglu from defending the action. Accordingly, Hakimoglu's argument that the sanctions were punitive fails.
At trial, Shailendra Paliwal, OZ Optics's vice-president and chief financial officer, testified as an expert in accounting. Paliwal testified that he had prepared a damages analysis concluding that plaintiffs had incurred $2.2 million in damages.
Paliwal reviewed “various accounting, financial and legal records” and determined that OZ Optics spent $912,000 from May 2001 to December 2001 on salaries for Bitmath employees. He also concluded that OZ Optics incurred $664,000 to operate Bitmath after the merger. To calculate the amount of costs OZ Optics incurred, Paliwal reviewed OZ Optics's accounting and auditing records from 2001 and 2002. Paliwal determined that Bitmath had provided a $186,000 security deposit to its former landlord and that Bitmath's former landlord had refused to return that money.
*16 After reviewing accounting and legal records, Paliwal also concluded that OZ Optics had spent $424,000 to maintain a Synopsis license following the merger with Bitmath. He looked at OZ's audited accounting records and banking records and determined that OZ Optics had loaned Bitmath $200,000 prior to the merger and that Bitmath had not repaid the loan. Paliwal analyzed invoices from OZ Optics's law firm and determined that OZ Optics spent $35,000 in connection with the merger with Bitmath. Finally, Paliwal concluded that OZ Optics had received approximately $202,000 from licensing some of Bitmath technology to a third party; Paliwal reduced the amount of plaintiffs' damages by that amount.
On cross-examination, Paliwal conceded that the damages analysis he produced at his deposition contained a different damages calculation because he conducted additional calculations after the deposition. The damages calculation Paliwal prepared before his deposition was approximately $100,000 higher than the calculation he prepared for trial. Paliwal also explained that he relied on a declaration submitted by Sezerman in support of plaintiffs' motion for summary judgment and/or adjudication, and on plaintiffs' mandatory settlement conference statement. Paliwal also testified that he did not include the “value” of the work performed by Bitmath employees in his damages analysis; he considered only the cost of their salaries.
As stated above, the jury awarded plaintiffs $370,600 in damages. In her motion for new trial, Hakimoglu claimed, unsuccessfully, that the damages were excessive and unsupported by sufficient evidence. On appeal, she reprises this argument. She seems to contend that the court improperly denied her motion for new trial because Paliwal's testimony was “legally insufficient.” Hakimoglu does not, however, contend that the damages are excessive. (See, e.g., Westphal v. Wal–Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078 (Westphal
We review the jury's award of damages for substantial evidence. “[W]hen a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.” (Da Silva v. Pacific King, Inc. (1987) 195 Cal.App.3d 1, 10–11 [refusing to “disturb the jury's determination of damages”].)
According to Hakimoglu, Paliwal's analysis was flawed and his testimony at trial was “speculative, unfounded, and riddled with unreliable conclusions.” Hakimoglu faults Paliwal for not conducting what she describes as an “independent” investigation and notes that the evidence suggested plaintiffs were not damaged at all as a result of the merger. These attacks on Paliwal's testimony do not establish that there was insufficient evidence to support the award of damages. At trial, Paliwal testified that he reviewed OZ's accounting records and calculated the out-of-pocket costs and expenditures—such as salaries and operating expenses—OZ incurred as a result of its merger with Bitmath. Whether Paliwal could have conducted a different investigation, or reached a different result regarding damages, is not for us to decide. We conclude that there is sufficient evidentiary support for the award of damages.
As stated above, the jury awarded plaintiffs $370,600 and plaintiffs moved for JNOV asking the court to increase the amount of damages to $2,219,018. They argued that there was “no dispute” about the damages that should have been awarded to them. The trial court denied plaintiffs' motion. Plaintiffs did not move for a new trial. On appeal, plaintiffs contend the denial of their motion was an abuse of discretion because substantial evidence did not support the amount of damages the jury awarded.
“The Legislature has codified two posttrial proceedings that may be utilized when parties seek to obtain a judgment contrary to the verdict rendered by a jury.” (Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1602 (Teitel
).) The first posttrial proceeding is found in Code of Civil Procedure section 629, which “provides in pertinent part that the trial court ‘shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.’ “ (Teitel, supra,
Cal.App.3d at p. 1602.) The second posttrial proceeding is codified in Code of Civil Procedure section 657. Subdivision (5) of that statute provides that a trial court may grant a new trial on the ground of excessive or inadequate damages. (Teitel, supra,
Cal.App.3d at p. 1602.) “A partial JNOV may not be used to reduce a damages verdict.” (Wegner, et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2008) 18:16, p. 18–4; see Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821, 832 [“There is no essential difference between the procedures appropriate for remittitur and additur, and we may therefore look to remittitur cases to determine the proper procedure for addititur”].)
is instructive. In that case, the jury rendered a verdict of $9,000 in general damages and $500,000 in punitive damages against the defendant bank. (Teitel, supra, 231 Cal.App .3d at p. 1596.) The defendant moved for JNOV and asked the trial court to reduce or strike the punitive damages award on the ground that the award was not supported by substantial evidence and was excessive as a matter of law. (Id. at pp. 1600, 1602.) The defendant also filed a motion for remittitur or for a new trial. (Id. at p. 1593.) The trial court denied the bank's remittitur motion and motion for new trial but granted the bank's motion for JNOV and reduced the award of punitive damages to $50,000. (Ibid.
The appellate court reversed. It concluded the trial court erred in granting the defendant's JNOV “as the vehicle to reduce what it perceived as an excessive amount of punitive damages.” (Teitel, supra, 231 Cal.App.3d at p. 1596.) The court explained that “the trial court concluded that some aware of punitive damages was warranted by the evidence but exercised the wrong remedy in reducing the verdict ....[t]he motion for judgment notwithstanding the verdict should have been denied because there was substantial evidence to support a punitive damages verdict against [the][b]ank.” (Id. at pp. 1602–1603.) The court noted that “damages, except those which may be determined as a matter of law, are to be fixed by the trier of fact and, if erroneous in amount, subject to the reduction or new trial procedure specified in Code of Civil Procedure section 662.5, subdivision (b).”
(Id. at p. 1605.)
*18 In accordance with Teitel,
the trial court properly denied plaintiffs' motion for partial JNOV to increase the award of damages. If plaintiffs were dissatisfied about the amount of damages awarded, they should have filed a motion for new trial on the ground of excessive or inadequate damages. (Code Civ. Proc., § 657, subd. (5).) They did not. Where the evidence supports an award of damages, but not the amount, a motion for new trial—not a motion for JNOV—is the appropriate method to challenge the award.
plaintiffs contend that a JNOV motion “is an appropriate vehicle to alter the amount of damages where there is a dispute about the amount of damages that should have been awarded.” As noted above, the Teitel
court concluded that a JNOV isthe “exclusive remedy ... to employ where some damages are properly awarded, but the amount is excessive.” (Teitel, supra, 231 Cal .App.3d at p. 1604.) In a footnote, the court stated, “[a] judgment notwithstanding the verdict for an amount less than the jury verdict would seem appropriate where there can be no dispute as to the amount. Such an order might have been appropriate, for example, if [the plaintiff] were entitled to no punitive damages at all and the trial court had reduced the judgment to the adjudicated amount of compensatory damages. In this case, however, the jury and the court agreed that [the plaintiff] was entitled to some punitive damages. Quite obviously, there is no specific amount of such damages to which she was entitled as a matter of law.” (Id. at p. 1605, fn. 6.)
Plaintiffs' reliance on this footnote is misplaced for two reasons. First, the court's statement is dicta, which we are not bound to follow. Second, and as in Teitel,
there is a dispute about the amount of damages to which plaintiffs are entitled. Here, the jury agreed that plaintiffs were entitled to some damages, but “[q]uite obviously, there [was] no specific amount of such damages to which [plaintiffs] [were] entitled as a matter of law.” (Teitel, supra,
Cal.App.3d at p. 1605, fn. 6.)
In their motion for JNOV, plaintiffs also claimed that the doctrine of unclean hands precluded Hakimoglu from recovering damages on her cross-complaint. On appeal, plaintiffs contend that the trial court abused its discretion in refusing to grant their JNOV motion “on the basis of Hakimoglu's unclean hands.” In response, Hakimoglu contends plaintiffs waived the defense of unclean hands by failing to raise it at trial.
As stated above, OZ Optics and Hakimoglu entered into a separation agreement in October 2001. In the agreement, OZ Optics agreed to provide Hakimoglu with 12 weeks of severance pay and to assume the lease of her Mercedes. The jury found that OZ Optics breached the terms of the separation agreement by answering “yes” to the following questions: (1) “Did [ ] Hakimoglu do all, or substantially all, of the significant things that the contract [the separation agreement] required her to do?” (3) “Did all the conditions occur that were required for OZ Optics' performance?” (4) “Did OZ Optics fail to do something that the contract required it to do?” and (5) “Was [ ] Hakimoglu harmed by that failure?” The jury awarded Hakimoglu $4,513.
*19 The defense of unclean hands arises from the maxim, “ ‘ “He who comes into Equity must come with clean hands.” ‘ “ [Citation.] The doctrine demands that a plaintiff act fairly in the matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim. [Citations.] The defense is available in legal as well as equitable actions. [Citations.] Whether the doctrine of unclean hands applies is a question of fact. [Citations.]” (Kendall–Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978.)
It is well-settled that “[t]he doctrine of unclean hands must be raised in the trial court to be available as a defense.” (Marshall v. Marshall (1965) 232 Cal.App.2d 232, 253, & cited cases.) The doctrine “ ‘must be pleaded or called to the attention of the trial court in order that it may pass on the defense and also to permit the person against whom it is sought to be applied the opportunity to present such evidence as might bear on that issue.’ “ (Ibid.;
see also Stone v. Lobsien (1952) 112 Cal.App.2d 750, 758 [defendant did not plead unclean hands until her closing brief and in her motion for new trial; “[i]t was within the discretion of the trial court to refuse to consider the issue [of unclean hands] at that late date”].)
Here, plaintiffs pleaded the affirmative defense of unclean hands in their answer. They did not, however, ask either the court or the jury to decide any factual issues relating to the defense, specifically whether Hakimoglu had unclean hands and whether her misconduct related to her claim for breach of the separation agreement. (See, e.g., Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 846.) Plaintiffs did not request a jury instruction on unclean hands. The jury was not instructed on unclean hands, and it did not render any finding on the defense on the special verdict form. A JNOV motion is not the proper method for raising a new defense after the completion of trial because “[a] motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. [Citation.]” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) As a result, the trial court properly denied plaintiffs' motion for JNOV. Having reached this result, we need not consider Hakimoglu's alternative argument that plaintiffs failed to prove the defense by a preponderance of the evidence.
Before trial, plaintiffs submitted a special jury instruction which provided as follows: “During the course of discovery in this case, the Superior Court issued a discovery Order compelling [ ] Hakimoglu to produce her personal Sony Laptop to plaintiffs' forensic expert, Andrew Crain, for analysis. After the Superior Court issued the discovery Order, but before Hakimoglu produced her computer, she ran the Sure–Delete program in an apparent effort to destroy documents and email communications on that computer. You may presume from Hakimoglu's willful destruction of evidence that such evidence was unfavorable to her case.” The trial court declined to give plaintiffs' special jury instruction on the grounds that CACI 204—entitled “Willful Suppression of Evidence”—“adequately covered” the issue of destruction of evidence. The version of CACI 204 that the court delivered to the jury provided, “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”
*20 Plaintiffs contend the court's failure to deliver its special jury instruction was erroneous. According to plaintiffs, the “egregiousness of Hakimoglu's destruction [of evidence], while under an unambiguous court order to produce that which she destroyed, warranted the giving of the instruction [.]” Plaintiffs apparently argue that CACI 204 was inappropriate because it “makes no mention of destroying evidence in violation of a court order.”
As the California Supreme Court has explained, instructional error requires reversal only “ ‘ “where it seems probable” that the error “prejudicially affected the verdict” ‘ [Citation.] The reviewing court should consider not only the nature of the error, “including its natural and probable effect on a party's ability to place his full case before the jury,” but the likelihood of actual prejudice as reflected in the individual trial record, taking into account “(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled.” [Citation.]” (Rutherford v. Owens–Illinois, Inc. (1997) 16 Cal.4th 953, 983 (Rutherford
), quoting Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573–580.)
Assuming for the sake of argument that the trial court erred in failing to give plaintiffs' special jury instruction, plaintiffs have failed to demonstrate a miscarriage of justice. (Rutherford, supra, 16 Cal.4th at p. 983; see also Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1423–1424 [“Instructional error in a civil case is prejudicial ‘ “[w]here it seems probable “ ‘that the error prejudicially affected the verdict. It is not enough that there may have been a ‘mere possibility’ of prejudice.” (Citations omitted.) .] First, plaintiffs were able to introduce evidence that Hakimoglu installed Sure Delete on one of her laptop computers in September 2001 and that Hakimoglu had permanently deleted a document entitled “Executive Summary” from that computer using the Sure Delete program. Plaintiffs also introduced evidence that Hakimoglu installed Sure Delete on a second laptop computer in November 2004, shortly before producing it to plaintiffs. And Crain testified regarding the number of files scrubbed from the second computer.
Second, the court instructed the jury with CACI No. 204 which informed the jury that it could: (1) consider whether a party intentionally concealed or destroyed evidence; and (2) if it determined that the party did so, it could decide whether that evidence would have been unfavorable to that party. In connection with Crain's testimony about Hakimoglu's use of the Sure Delete program, this instruction properly informed the jury that it could consider whether Hakimoglu destroyed evidence that would have been unfavorable to her.
Third, plaintiffs' counsel persuasively argued during closing arguments that Hakimoglu scrubbed files from the laptop computer before she returned it to plaintiffs. Plaintiffs' counsel also reviewed CACI 204 with the jury during closing argument and told the jury: “So when you look at these activities, the law is that if you decide Ms. Hakimoglu intentionally concealed or destroyed evidence, you can then draw an inference that that evidence would have been bad for her.” Finally, there is no indication that the jury was confused or misled by the court's failure to give plaintiffs' special jury instruction. The jury found in favor of plaintiffs on the claims for breach of the employment contract, breach of fiduciary duty, and fraud (concealment) and awarded them $370,600. There is no indication that the court's decision not to give plaintiffs' special jury instruction prevented plaintiffs from presenting their claims or defenses. By itself, plaintiffs' conclusory statement that “the jury very possibly would have returned a much higher verdict for [plaintiffs] and not returned a verdict in favor of Hakimoglu on her Cross–Complaint” is not sufficient to demonstrate prejudice.
*21 Before trial, Hakimoglu moved in limine to exclude evidence regarding: (1) her conduct in connection with her laptop computer; and (2) the award of monetary sanctions against her. Hakimoglu contended that such evidence was irrelevant and unduly prejudicial pursuant to Evidence Code sections 350 and 352. In opposition to the motion, plaintiffs argued that they “must be allowed to present evidence of Hakimoglu's destruction of computer files, including the fact of the $90,000 monetary sanction against her for deletion of computer files in contempt of a court order to produce documents.”
During the presentation of plaintiffs' case at trial, counsel for plaintiffs sought clarification of the court's ruling on Hakimoglu's motion in limine. After hearing lengthy argument from counsel for both parties, the court stated that plaintiffs' counsel could “approach this [issue] from the terms of she [Hakimoglu] was requested to produce the computer and what did she do before she produced it.” The court, however, precluded plaintiffs' counsel from mentioning that Hakimoglu had violated a court order.
On appeal, plaintiffs claim the trial court abused its discretion in excluding evidence that Hakimoglu destroyed evidence in violation of a court order. According to plaintiffs, “the jury should have been allowed to hear this evidence as it might help explain why additional evidence was not presented by [plaintiffs] on some issues because they had not received those materials from Hakimoglu in discovery, her deceit and willingness to take whatever steps were necessary to win this case, and her unclean hands with respect to her claims against OZ.”
We review the court's ruling for abuse of discretion. “ ‘The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence. [Citation.] Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (Employers Reinsurance Co. v. Superior Court (2008) 161 Cal.App.4th 906, 919, quoting People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Plaintiffs have not supported their argument with a citation to any relevant authority. (Murphy, supra, 164 Cal.App.4th at p. 406, fn. 15.) They have also failed to demonstrate that the court's ruling was “arbitrary, capricious, or patently absurd.” The court would have been within its discretion to exclude the evidence under Evidence Code section 352. As a result, we reject plaintiffs' claim that the court erroneously excluded evidence regarding Hakimoglu's destruction of evidence in violation of a court order.
As discussed above, the trial court awarded sanctions against Hakimoglu in the amount of $90,000. In its order, the court stated: “Plaintiffs did not incur attorney's fees and costs as a result of [Hakimoglu's] deletion and possible scrubbing of files from her computer until [Hakimoglu] delivered the file to Plaintiffs' forensic experts and the deletions and possible use of a scrubbing program were discovered. Attorneys fees incurred in attempts to meet and confer to convince [Hakimoglu] to turn over her computer are not awarded. Those fees and costs did not result from [Hakimoglu's] attempts to delete or erase documents stored in her computer.
*22 “In addition, the Court finds that a substantial portion of Plaintiffs' attorneys fees are attributable to the decision to move for terminating sanctions without including a request, in the alternative, for monetary sanctions. Although the Court has ruled that the motion for monetary sanctions is not a motion for reconsideration, it is also apparent that the discovery dispute at issue would have been resolved more expeditiously if Plaintiffs had simply requested monetary sanctions, in the alternative, in their initial motion for sanctions.
“Based on the conclusions above, the Court awards $90,000 in sanctions against [ ] Hakimoglu, and in favor of Plaintiffs.... This sum represents a reasonable amount for the attorney's fees, costs, and expert's fees incurred by Plaintiffs as a result of [Hakimoglu's] misuse of discovery with regard to the contents of her computer. “The Court further holds, as an independent basis for its ruling, that an award in excess of $90,000 would be unjust in the circumstances here. [Hakimoglu] has established that an award in excess of this amount could create a burden that might prevent her from defending against Plaintiffs' claims in this action.”
On appeal, plaintiffs contend the amount of sanctions awarded is an abuse of discretion “because the awarded amount does not compensate [them] for the reasonable expenses they incurred to obtain the discovery” and instead rewards Hakimoglu for her misconduct. Plaintiffs have not established the amount of sanctions awarded was arbitrary, capricious or whimsical. (Karlsson, supra, 140 Cal.App.4th at pp. 1217–1218.) First, plaintiffs fail to cite to any authority requiring a trial court to impose the full amount of sanctions requested. Second, the trial court's order contains three reasons for awarding $90,000 in sanctions instead of $234,419: (1) plaintiffs did not incur attorney fees and costs as a result of Hakimoglu's deletion and possible scrubbing of files from her computer until she delivered the computer to plaintiffs' forensic experts and the experts discovered the deletions and possible scrubbing program; (2) plaintiffs elected to file two separate motions for sanctions rather than a single motion with two alternative sanctions requests; and (3) awarding sanctions in an amount over $90,000 might preclude Hakimoglu from defending against plaintiffs' claims. Each of these reasoned grounds justifies the amount of the award here. As a result, we conclude that the amount of sanctions awarded was not an abuse of discretion.