Fox defendant in California

2021(See, e.g., Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1540 [23 percent]; Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., supra, 155 Cal.App.3d at p. 391 [17.5 percent]; but see Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1596 [28 percent was excessive]; Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 515-516 [33 percent was excessive].) The Fox defendants’ argument the financial statement was too out-of-date to evidence Fox’s ability to pay at the time of the trial in mid-2018 is not persuasive.

2021(See, e.g., Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1540 [23 percent]; Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., supra, 155 Cal.App.3d at p. 391 [17.5 percent]; but see Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1596 [28 percent was excessive]; Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 515-516 [33 percent was excessive].) The Fox defendants’ argument the financial statement was too out-of-date to evidence Fox’s ability to pay at the time of the trial in mid-2018 is not persuasive.

2021(See, e.g., Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1540 [23 percent]; Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., supra, 155 Cal.App.3d at p. 391 [17.5 percent]; but see Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1596 [28 percent was excessive]; Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 515-516 [33 percent was excessive].) The Fox defendants’ argument the financial statement was too out-of-date to evidence Fox’s ability to pay at the time of the trial in mid-2018 is not persuasive.

2021(See, e.g., Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1540 [23 percent]; Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., supra, 155 Cal.App.3d at p. 391 [17.5 percent]; but see Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1596 [28 percent was excessive]; Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 515-516 [33 percent was excessive].) The Fox defendants’ argument the financial statement was too out-of-date to evidence Fox’s ability to pay at the time of the trial in mid-2018 is not persuasive.

2021However, the Fox defendants also moved for a new trial under section 657, subdivision 4, which provides for the granting of a new trial based on “[n]ewly discovered evidence, material for the party making the application, which [the party] could not, with reasonable diligence, have discovered and produced at the trial.” (See Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152 , 1161-1162 & fn. 5 [personal injury plaintiffs entitled to a new trial in product defect action where manufacturer concealed reports of similar incidents because it 47 deprived the plaintiffs of a chance to “tel

2021However, the Fox defendants also moved for a new trial under section 657, subdivision 4, which provides for the granting of a new trial based on “[n]ewly discovered evidence, material for the party making the application, which [the party] could not, with reasonable diligence, have discovered and produced at the trial.” (See Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152 , 1161-1162 & fn. 5 [personal injury plaintiffs entitled to a new trial in product defect action where manufacturer concealed reports of similar incidents because it 47 deprived the plaintiffs of a chance to “tel

2021Although evidence of net worth is not required to support an award of punitive damages, the Rosses still needed to produce some evidence of ACF’s “‘“actual total financial status.”’” ( Soto, supra, 239 Cal.App.4th at pp. 194-196 [evidence of corporation’s income was not sufficient to support punitive damages award 37 Fox was in the state of Washington at the time of the punitive damages trial, despite notice that the trial would begin “as soon as the first phase was completed.” The Fox defendants’ attorney noted Fox had been excused as a witness during phase 1 of the trial, and the Rosses had

2021Although evidence of net worth is not required to support an award of punitive damages, the Rosses still needed to produce some evidence of ACF’s “‘“actual total financial status.”’” ( Soto, supra, 239 Cal.App.4th at pp. 194-196 [evidence of corporation’s income was not sufficient to support punitive damages award 37 Fox was in the state of Washington at the time of the punitive damages trial, despite notice that the trial would begin “as soon as the first phase was completed.” The Fox defendants’ attorney noted Fox had been excused as a witness during phase 1 of the trial, and the Rosses had

2021(See Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1243 [challenge to jury’s skipping questions on confusing verdict form forfeited where “appellant did not raise the defective verdict issue until after the jury had been discharged”]; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 [party “waived any objection to the special verdict form by failing to object before the court discharged the jury”]; see also § 619 [“When the verdict is announced, if it is informal or insufficient, in not covering the discharge of the jury, by which time lead trial counsel had

2021(See Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1243 [challenge to jury’s skipping questions on confusing verdict form forfeited where “appellant did not raise the defective verdict issue until after the jury had been discharged”]; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 [party “waived any objection to the special verdict form by failing to object before the court discharged the jury”]; see also § 619 [“When the verdict is announced, if it is informal or insufficient, in not covering the discharge of the jury, by which time lead trial counsel had

2021(See Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 301 [“[T]he rule that this kind of contract provision does not, as a matter of law, preclude a finding of fraud does not mean the contract 67 provision is in every case irrelevant.”]; Driver v. Melone (1970) 11 Cal.App.3d 746, 752 [“While the ‘as is’ provision does not relieve a seller of all responsibility of disclosure, it is a factor to be considered with all other circumstances in determining whether the buyer has been misled.”].) But contrary to the Fox defendants’ contention, the Court of Appeal in Hinesley did not conclud

2021The clause is certainly a factor [citation] to consider in determining whether Hinesley justifiably relied on [defendant’s representative’s] representations regarding the particular tenants locating close to the suite Hinesley was considering leasing.” (Hinesley v. Oakshade Town Center, supra, 135 Cal.App.4th at p. 302 .) Substantial evidence supported the trial court instructing the jury with Civil Code section 1668 based on the Rosses’ evidence of fraud and the Fox defendants’ introduction of the purchase agreements’ integration clause.

2021(See Thompson v. Friendly Hills Regional Medical Center (1999) 71 Cal.App.4th 544, 550 [“We independently review all the grounds advanced for the new trial motion and will sustain the order ‘if it should have been granted 45 upon any ground stated in the motion, whether or not specified in the order or specification of reasons . . . .’”].) The Fox defendants argued in their motion for a new trial under section 657, subdivision 1, that the trial court erred in denying their motion in limine to exclude Albert’s testimony and in allowing Albert to testify without disclosing relevant documents, wh

2021(See Thompson v. Friendly Hills Regional Medical Center (1999) 71 Cal.App.4th 544, 550 [“We independently review all the grounds advanced for the new trial motion and will sustain the order ‘if it should have been granted 45 upon any ground stated in the motion, whether or not specified in the order or specification of reasons . . . .’”].) The Fox defendants argued in their motion for a new trial under section 657, subdivision 1, that the trial court erred in denying their motion in limine to exclude Albert’s testimony and in allowing Albert to testify without disclosing relevant documents, wh

2021A fiduciary duty imposes on a syndicator a duty to act with the utmost good faith and in the best interest of . . . his or its investors.” The Fox defendants contend the court erred in failing to instruct the jury further on the scope of a syndicator’s fiduciary 63 duty pursuant to Austin v. Hallmark Oil Co. (1943) 21 Cal.2d 718, 728 (Austin).

2021The Fox defendants argue that under Austin, supra, 21 Cal.2d at page 728 , the Fox defendants—as the promotors of the syndications—had a fiduciary duty to make disclosures about the costs involved in the LLC’s purchase of the shopping centers only to individuals who were existing investors in the LLC’s.

2021(See Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 301 [“[T]he rule that this kind of contract provision does not, as a matter of law, preclude a finding of fraud does not mean the contract 67 provision is in every case irrelevant.”]; Driver v. Melone (1970) 11 Cal.App.3d 746, 752 [“While the ‘as is’ provision does not relieve a seller of all responsibility of disclosure, it is a factor to be considered with all other circumstances in determining whether the buyer has been misled.”].) But contrary to the Fox defendants’ contention, the Court of Appeal in Hinesley did not conclud

2021(See Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 301 [“[T]he rule that this kind of contract provision does not, as a matter of law, preclude a finding of fraud does not mean the contract 67 provision is in every case irrelevant.”]; Driver v. Melone (1970) 11 Cal.App.3d 746, 752 [“While the ‘as is’ provision does not relieve a seller of all responsibility of disclosure, it is a factor to be considered with all other circumstances in determining whether the buyer has been misled.”].) But contrary to the Fox defendants’ contention, the Court of Appeal in Hinesley did not conclud

2021(See Metcalf, supra, 42 Cal.4th at p. 1131 ; Agarwal v. Johnson, supra, 25 Cal.3d at p. 948 .) d.

2021(Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 705-706 [“‘[W]hen a trial court gives a jury instruction which is prejudicially erroneous as given, i.e., which is an incorrect statement of law, the party harmed by that instruction need not have objected to the instruction or proposed a correct instruction of his own in order to preserve the right to complain of the erroneous instruction on appeal.’”]; see § 647 [“All of the following are deemed excepted to: . . . giving an instruction, refusing to give an instruction, or modifying an instruction requested”].) However, “‘[w]here

2021(See § 2031.310, subd. (i) [evidence and issue sanctions only available for failure to obey an order compelling further production]; Saxena, supra, 159 Cal.App.4th at pp. 332- 54 333.)27 And they did not make their motion under section 2025.010, instead stating at the hearing they were moving under section 2034.300, subdivision (c). 3.

2021(See Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1243 [challenge to jury’s skipping questions on confusing verdict form forfeited where “appellant did not raise the defective verdict issue until after the jury had been discharged”]; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 [party “waived any objection to the special verdict form by failing to object before the court discharged the jury”]; see also § 619 [“When the verdict is announced, if it is informal or insufficient, in not covering the discharge of the jury, by which time lead trial counsel had

2021(See, e.g., Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1540 [23 percent]; Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., supra, 155 Cal.App.3d at p. 391 [17.5 percent]; but see Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1596 [28 percent was excessive]; Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 515-516 [33 percent was excessive].) The Fox defendants’ argument the financial statement was too out-of-date to evidence Fox’s ability to pay at the time of the trial in mid-2018 is not persuasive.

2021(See, e.g., Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1540 [23 percent]; Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., supra, 155 Cal.App.3d at p. 391 [17.5 percent]; but see Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1596 [28 percent was excessive]; Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 515-516 [33 percent was excessive].) The Fox defendants’ argument the financial statement was too out-of-date to evidence Fox’s ability to pay at the time of the trial in mid-2018 is not persuasive.

2021The Rosses contend this presents a legal question premised on undisputed facts subject to de novo review, citing cases in which the 28 appellate courts independently reviewed inconsistent special verdicts.19 (See, e.g., Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1038 [“On appeal, we review the special verdict de novo.”]; Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358 [“On appeal, we review a special verdict de novo to determine whether its findings are inconsistent.”]; City of San Diego, supra, 126 Cal.App.4th 668, 678 [“[A] special verdict’s cor

2021The Rosses contend this presents a legal question premised on undisputed facts subject to de novo review, citing cases in which the 28 appellate courts independently reviewed inconsistent special verdicts.19 (See, e.g., Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1038 [“On appeal, we review the special verdict de novo.”]; Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358 [“On appeal, we review a special verdict de novo to determine whether its findings are inconsistent.”]; City of San Diego, supra, 126 Cal.App.4th 668, 678 [“[A] special verdict’s cor

2021(See Roby, at p. 716 [“an act rooted in ‘intentional malice’” is more reprehensible than a mere “failure to prevent the foreseeable discriminatory consequences flowing from [an] otherwise appropriate [corporate] policy”]; see also Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists (9th Cir. 2005) 422 F.3d 949 , 958-959 [“‘infliction of economic injury, especially when done intentionally through affirmative acts of misconduct, or when the target is financially vulnerable, can warrant a substantial penalty’”], quoting BMW of North America, Inc. v. Gore (19

2021(See Roby, at p. 716 [“an act rooted in ‘intentional malice’” is more reprehensible than a mere “failure to prevent the foreseeable discriminatory consequences flowing from [an] otherwise appropriate [corporate] policy”]; see also Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists (9th Cir. 2005) 422 F.3d 949 , 958-959 [“‘infliction of economic injury, especially when done intentionally through affirmative acts of misconduct, or when the target is financially vulnerable, can warrant a substantial penalty’”], quoting BMW of North America, Inc. v. Gore (19

2021Co., supra, 15 Cal.App.5th at p. 1038 ; see Watson Bowman Acme Corp. v. RGW Construction, Inc. (2016) 2 Cal.App.5th 279, 293 [“prejudgment interest compensates for the loss of the use of the money during the period between the assertion of the claim and the rendition of judgment”].)42 42 The Fox defendants further argue that the Rosses’ attorney waived prejudgment interest when he told the trial court during the conference on jury instructions, “We’ll seek interest on the judgment . . . but not on the consequential damages.” This 92 DISPOSITION We reverse the trial court’s order granting a new

2021Co., supra, 15 Cal.App.5th at p. 1038 ; see Watson Bowman Acme Corp. v. RGW Construction, Inc. (2016) 2 Cal.App.5th 279, 293 [“prejudgment interest compensates for the loss of the use of the money during the period between the assertion of the claim and the rendition of judgment”].)42 42 The Fox defendants further argue that the Rosses’ attorney waived prejudgment interest when he told the trial court during the conference on jury instructions, “We’ll seek interest on the judgment . . . but not on the consequential damages.” This 92 DISPOSITION We reverse the trial court’s order granting a new

2021However, the Fox defendants forfeited this argument by failing to raise it below, and further, the Rosses did not argue to the jury that the waivers were evidence of wrongdoing. 69 consequential damages.” However, the attorney did not request an instruction, and the court responded simply, “Okay.” The court later instructed the jury without giving an instruction on consequential damages.32 In their motion for a new trial and on appeal, the Fox defendants contend the trial court erred in failing to give a consequential damages instruction, and this error resulted in the jury awarding excessive

2021However, the Fox defendants forfeited this argument by failing to raise it below, and further, the Rosses did not argue to the jury that the waivers were evidence of wrongdoing. 69 consequential damages.” However, the attorney did not request an instruction, and the court responded simply, “Okay.” The court later instructed the jury without giving an instruction on consequential damages.32 In their motion for a new trial and on appeal, the Fox defendants contend the trial court erred in failing to give a consequential damages instruction, and this error resulted in the jury awarding excessive

2021(See Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1243 [challenge to jury’s skipping questions on confusing verdict form forfeited where “appellant did not raise the defective verdict issue until after the jury had been discharged”]; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 [party “waived any objection to the special verdict form by failing to object before the court discharged the jury”]; see also § 619 [“When the verdict is announced, if it is informal or insufficient, in not covering the discharge of the jury, by which time lead trial counsel had

2021(See Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1243 [challenge to jury’s skipping questions on confusing verdict form forfeited where “appellant did not raise the defective verdict issue until after the jury had been discharged”]; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 [party “waived any objection to the special verdict form by failing to object before the court discharged the jury”]; see also § 619 [“When the verdict is announced, if it is informal or insufficient, in not covering the discharge of the jury, by which time lead trial counsel had

2021The Rosses contend this presents a legal question premised on undisputed facts subject to de novo review, citing cases in which the 28 appellate courts independently reviewed inconsistent special verdicts.19 (See, e.g., Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1038 [“On appeal, we review the special verdict de novo.”]; Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358 [“On appeal, we review a special verdict de novo to determine whether its findings are inconsistent.”]; City of San Diego, supra, 126 Cal.App.4th 668, 678 [“[A] special verdict’s cor

2021The Rosses contend this presents a legal question premised on undisputed facts subject to de novo review, citing cases in which the 28 appellate courts independently reviewed inconsistent special verdicts.19 (See, e.g., Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1038 [“On appeal, we review the special verdict de novo.”]; Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358 [“On appeal, we review a special verdict de novo to determine whether its findings are inconsistent.”]; City of San Diego, supra, 126 Cal.App.4th 668, 678 [“[A] special verdict’s cor