Filed 6/16/15 In re Cellphone Termination Fee Cases CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION FIVE




IN RE CELLPHONE TERMINATION                                                 A140302
FEE CASES.
                                                                            (Alameda County
_____________________________________/                                      Super. Ct. No. RG03121510)

         This consumer class action challenges wireless telephone carrier Sprint Spectrum,
L.P.’s (Sprint) policy of charging early termination fees (ETF’s) to consumers
terminating service before defined contract periods expire.1 The latest chapter in this
ongoing litigation concerns the retrial of Sprint’s damages pursuant to our 2011 opinion
in Cellphone Termination Fee Cases, supra, 193 Cal.App.4th 298. On retrial, Sprint
presented two alternate theories of damages: (1) lost profits damages, amounts remaining
on the contracts plaintiffs breached; and (2) reliance damages, outlays Sprint made in
reliance on plaintiffs’ promise to remain customers through the duration of their

1
       This case has generated several writ petitions (Ayyad v. Superior Court (July 16,
2013, A139223) [nonpub. order]; Sprint v. Superior Court (Dec. 13, 2012, A137207)
[nonpub. order]; Sprint Spectrum, L.P. v. Ayyad (June 23, 2008, A121870) [nonpub.
order]) and the following appeals: Cellphone Termination Fee Cases (June 24, 2014,
A136818) [nonpub. opn.]; Cellphone Termination Fee Cases (June 24, 2014, A138424)
[nonpub. opn.]; Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851 (Ayyad);
Cellphone Termination Fee Cases (2011) 193 Cal.App.4th 298; Ayyad v. Sprint
Spectrum, L.P. (Dec. 3, 2009, A124082) [nonpub. order]; Ayyad v. Sprint Spectrum, L.P.
(Nov. 23, 2009, A121948 [nonpub. opn.]; Ayyad v. Sprint Spectrum, L.P. (July 24, 2009,
A122709 [nonpub. opn.].) The named plaintiffs and representatives of the class of
approximately 2,000,000 are Ramzy Ayyad, Jeweldean Hull, Christine Morton, Richard
Samko, and Amanda Selby (plaintiffs).
                                                             1
contracts. The jury determined Sprint suffered $18,425,130 in lost profits damages and
$0 in reliance damages.
       Sprint moved for judgment notwithstanding the verdict (JNOV), contending the
evidence was insufficient as a matter of law to support the verdict because
uncontroverted evidence established it suffered $1.05 billion in lost profits damages and
up to $772,405,316 in reliance damages, and because the court erred by admitting
plaintiffs’ expert testimony on lost profits. (Code Civ. Proc., § 629.)2 Sprint also moved
for new trial on lost profits and reliance damages on various grounds. The court denied
Sprint’s JNOV motion and Sprint’s motion for new trial on reliance damages. The court
granted Sprint’s new trial motion on lost profits damages (§ 657, subds. (1), (3), (7)).
       Plaintiffs appeal. They challenge the denial of their motion for directed verdict on
Sprint’s lost profits damages and contend the court erred by granting Sprint’s motion for
new trial on lost profits. Sprint cross-appeals. It contends the court erred by denying its
JNOV motion and by denying its motion for a new trial on reliance damages.
       We affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       In 2003, plaintiffs sued Sprint and other cellular telephone carriers.3 (Ayyad,
supra, 210 Cal.App.4th at p. 854.) As relevant here, plaintiffs alleged Sprint’s ETF’s
violated the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) and Unfair
Competition Law (Bus. & Prof. Code, § 17200 et seq.) and constituted unauthorized
penalties (Civ. Code, § 1671). (Ayyad, supra, 210 Cal.App.4th at p. 854.) The trial court
certified plaintiffs’ claims as a class action and allowed Sprint to file a cross-complaint
for breach of contract seeking monetary damages and equitable relief if the ETF’s were
found to be unenforceable penalties. (Id. at pp. 854-855.) In a month-long trial in 2008,
the parties tried plaintiffs’ claims and Sprint’s cross-claims and setoff defense. (Id. at p.

2
      Unless noted, all further statutory references are to the Code of Civil Procedure.
3
      For a detailed procedural history of this litigation, see Ayyad, supra, 210
Cal.App.4th at pages 854 to 856 and Cellphone Termination Fee Cases, supra, 193
Cal.App.4th at pages 303 to 309.

                                              2
855.) Plaintiffs presented the majority of their case through their expert, Dr. Lee L.
Selwyn. (Cellphone Termination Fee Cases, supra, 193 Cal.App.4th at p. 305.) Dr.
Selwyn testified Sprint suffered $17,619,322 in lost profits from early terminations over
the entire class period. (Id. at p. 306.)
       “[T]he judge and jury each decid[ed] different issues” at trial. (Ayyad, supra, 210
Cal.App.4th at p. 855.) Among other things, the trial court concluded the ETF’s were
unenforceable contractual penalties. The jury determined plaintiffs had paid $73,775,975
in ETF’s to Sprint and the trial court ruled plaintiffs were entitled to restitution in that
amount. (Id. at pp. 855-856.) The jury also found plaintiffs had breached their contracts
with Sprint and the early termination of those contracts had caused Sprint damages of
$225,697,433. (Id. at p. 856.) The court determined plaintiffs were entitled to restitution
of the collected ETF’s, but also that this amount was subject to a setoff for Sprint’s cross-
claims. (Ibid.) After setting off plaintiffs’ recovery against Sprint’s damages on its
cross-claims, Sprint’s resulting net recovery was $151,921,458. Pursuant to its earlier
order that Sprint would not be permitted to collect money from plaintiffs, the court
reduced Sprint’s recovery to zero. (Ibid.)
       Following entry of judgment, the trial court granted plaintiffs’ motion for a new
trial and ordered a new trial on the amount of Sprint’s actual damages on Sprint’s cross-
claims and on the court’s calculation of the setoff. (Cellphone Termination Fee Cases,
supra, 193 Cal.App.4th at pp. 308-309.) The court determined “‘the jury did not follow
the instructions to determine Sprint’s actual total economic damages.’” (Id. at p. 309.) In
a 2011 opinion, we affirmed and “remanded for retrial on the issue of Sprint’s damages,
and the calculation of any offset to which Sprint may be entitled.” (Id. at p. 330.)
Expert Disclosures and the Court’s May 2013 Pretrial Order
       Following remand, the court set a January 2012 trial date. In November 2011,
plaintiffs served a demand for exchange of expert witness information (§ 2034.210). The
court ordered the parties to “exchange initial and supplemental expert declarations and




                                               3
reports” by November 30, 2011 pursuant to section 2034.260.4 The court later vacated
the expert disclosure date and set: (1) a July 2013 trial date; (2) an April 26, 2013
deadline for expert disclosures and reports; and (3) a May 3, 2013 deadline for
supplemental expert disclosures and reports. The court’s April 2013 order on expert
discovery provided: “The law on the admissibility of expert testimony has changed since
the first . . . trial . . . . Therefore, the court will permit new expert disclosures and new
expert depositions. . . . [¶] The Court orders the use of initial and supplemental expert
declarations and reports that meet the requirement of both [section] 2034.260(c)” and
Federal Rules of Civil Procedure, rule 26(a)(2)(B).
       Sprint timely served its expert disclosure designating four expert witnesses: (1) Dr.
William E. Taylor; (2) Jeffrey L. Baliban; (3) Dr. Christian Dippon; and (4) Dr. Seth
Kaplan. In their “Expert Witness Submission,” made pursuant to section 2034.260,
subdivision (b)(2), plaintiffs did “not designate any expert witnesses at this time.
Plaintiffs reserve[d] the right to make a supplemental designation pursuant to . . .
[s]ection 2034.280(a) of one or more experts to express opinions on subjects to be
covered by experts designated by . . . Sprint.” At hearings and in pretrial pleadings in
March and April 2013, however, plaintiffs referred to Dr. Selwyn as their expert witness
and claimed he “will testify again, as he did in 2008, that damages [were] zero for Sprint”
and that “Sprint suffer[ed] no compensable damages whatsoever from early termination.”
       In May 2013, the court determined Sprint could seek reliance damages for “the
money it spent in reliance on the contracts” and lost profits damages for “‘anticipated
profits which [it] would have derived from performance.’” As the court explained,
breach of contract damages “can be measured by both (1) the plaintiffs ‘reasonable outlay
or expenditure toward performance’ and (2) ‘the anticipated profits which [it] would have
derived from performance.’ [Citations.]” The court concluded Sprint’s “‘reasonable

4
        On remand, Sprint moved to compel arbitration. (Ayyad, supra, 210 Cal.App.4th
at p. 854.) The trial court refused to hear the motion and Sprint appealed, staying the
case in the trial court. In October 2012, we affirmed, concluding “the trial court properly
refused to hear Sprint’s motion, because doing so would have exceeded its jurisdiction on
remand.” (Ibid.)
                                                4
outlay or expenditure toward performance’ would be measured by the amount that it
expended in reliance on the contracts. . . .” The court declined to determine if Sprint’s
lost profits and reliance damages were “alternative or cumulative and if alternative, when
Sprint must elect its measure of damages.”
       The parties later agreed to serve second initial expert disclosures by May 17, 2013
and supplemental expert disclosures by June 12, 2013. On May 17, 2013, Sprint served
Dr. Taylor’s report on reliance damages. Dr. Taylor provided two alternate calculations
for reliance damages: (1) reliance damages based on commission costs and handset
subsidies; and (2) reliance damages based on cost per gross addition (CPGA) of a new
customer. Plaintiffs did not designate an expert on May 17, 2013. On June 12, 2013,
plaintiffs served a “Supplemental Expert Witness Designation” designating Dr. Selwyn
as a “rebuttal expert witness[.]” The designation attached Dr. Selwyn’s 47-page report,
where he: (1) rebutted Sprint’s expert testimony on reliance damage calculations; (2)
“adopt[ed]” his prior deposition testimony and his 2008 trial testimony; and (3) reduced
Sprint’s lost profits damages from $18,425,130 to $5,001,107. Later that month, Sprint
deposed Dr. Selwyn.
Sprint’s Motion to Strike Plaintiffs’ Expert Designation
       Sprint moved to strike plaintiffs’ expert designation, arguing plaintiffs “missed”
the April and May 2013 designation deadlines and — as a result — had “failed to
designate an expert witness for the retrial.” Sprint claimed plaintiffs violated section
2034.210 et seq., which requires a simultaneous exchange of information on expert trial
witnesses. Over plaintiffs’ objection, the court granted Sprint’s motion and precluded
plaintiffs from presenting “any expert testimony on what [plaintiffs] contend is the
appropriate amount of Sprint’s damages.” The court explained “[f]rom March 3, 2011, to
the present it has been clear that the re-trial would concern the amount of Sprint’s
damages. Therefore, it was incumbent on plaintiffs to identify any expert who they
intended to present on the issue of Sprint’s damages in their initial expert disclosure.”
The court determined section 2034.300 and Fairfax v. Lords (2006) 138 Cal.App.4th
1019 compelled the exclusion of plaintiffs’ expert testimony on Sprint’s damages.
                                              5
       Regarding prejudice, the court explained, “[p]laintiffs argue that Sprint suffered no
prejudice because Sprint knew that plaintiffs intended to use Dr. Selwyn as an expert on
damages and that Sprint had deposed Dr. Selwyn repeatedly before the first trial and
cross-examined him in the first trial. This is not persuasive. Sprint has suffered
prejudice because it disclosed its experts and their reports before the Sprint experts had
the opportunity to review any new report that Dr. Selwyn might prepare. Plaintiffs, in
contrast, held off on disclosing Dr. Selwyn’s report until after [he] reviewed the reports
of Sprint’s experts.” Additionally, the court noted the “prejudice to the orderly
administration of the pre-trial process” because section 2034.010 and the court’s April
2013 order required “a simultaneous rather than a staggered exchange of initial expert
disclosures and information.” The court, however, allowed Dr. Selwyn to provide
testimony to impeach Dr. Taylor’s opinions on Sprint’s damages (§ 2034.310, subd. (b)).
       The court denied plaintiffs’ ex parte motion to augment, amend, or submit a tardy
expert witness designation, reiterating its conclusion that Sprint was prejudiced by the
late disclosure and determining plaintiffs “made a conscious and willful decision not to
make the simultaneous exchange of expert designations and reports as required by” the
April 2013 order “in an effort to obtain some tactical advantage.” This court denied
plaintiffs’ petition for writ relief. (Ayyad v. Sprint Spectrum, L.P. (July 16, 2013,
A139223 [nonpub. order].)
Sprint’s Case on Retrial
       The only issue at retrial was the amount of Sprint’s damages caused by plaintiffs’
breaches of their Sprint contracts. Sprint sought damages on two alternate theories: (1)
lost profits — the amounts remaining on the contracts plaintiffs breached; and (2)
reliance damages — outlays Sprint made in reliance on plaintiffs’ promises to remain
customers throughout the duration of their contracts.
       A. Lost Profits Damages
       Sprint argued it suffered $1,059,373,735 in lost profits. Dr. Taylor testified the
formula for lost profits is lost revenue — the revenue Sprint would have received from
class members had they had not breached their contracts — minus avoided costs — costs

                                              6
Sprint no longer incurred after class members were not part of the Sprint network. Dr.
Taylor testified Sprint lost $1,293,970,606 in revenue when class members terminated
their contracts early. He calculated this figure by multiplying the average monthly
reoccurring charge in the class members’ contracts ($49.16) by the average number of
months remaining on the class members’ contracts (13.25 months) by the total number of
class members (1,986,537).
      Next, Dr. Taylor calculated Sprint’s avoided costs using the “avoided cost
percentage” calculated by Jeffrey Baliban — the “ratio of the actual costs” Sprint would
avoid, divided by the average monthly recurring charge in class members’ contracts — of
18.13 percent. Dr. Taylor subtracted the avoided costs of $234,596,871 from lost
revenue and determined Sprint’s lost profits were $1,059,373,735.
      B. Reliance Damages
      Sprint argued it suffered reliance damages. Sprint claimed it expended
$79,431,915 in commission reliance damages, and $265,350,992 handset subsidy reliance
damages, or $772,405,316 CPGA reliance damages. Jay Franklin, Sprint’s Director of
Accounting, testified Sprint paid commissions to Sprint employees and to third party
retailers (such as Best Buy or RadioShack) when a customer entered into a new “term
agreement” or when an existing Sprint customer upgraded an existing term agreement.
William Souder, Sprint’s Senior Vice President of Pricing, provided similar testimony.
To support its commission damages, Sprint relied on a document summarizing its
commission expenses and providing a weighted average for commission payments made
by Sprint from 2003 to 2007. Franklin determined the weighted average for Sprint’s
commission payments was $41.69. Dr. Taylor multiplied that number with the number of
class members with confirmed contracts and determined Sprint’s total commission outlay
was $79,431,915.
      Sprint argued it suffered $265,350,992 in handset subsidy reliance damages —
i.e., the difference between what Sprint paid to the phone manufacturer for a new phone
and what plaintiffs actually paid for the phone. Using data provided by Rebecca Findlay,
Sprint’s Supervisor of Accounts Payable, Dr. Taylor determined Sprint’s average

                                            7
weighted handset cost was $179.28. Using data provided by Dr. Dippon, Dr. Taylor then
determined class members paid an average of $40.01 for their handsets. Subtracting
$40.01 from the range of handset costs, Dr. Taylor determined Sprint paid an average
handset subsidy between $139 and $154 to each class member.5 Finally, Dr. Taylor
multiplied $139, the lower end of the subsidy range, to the number of class members and
concluded Sprint expended $265,350,992 on handset subsidies.
      In the alternative, Sprint argued it suffered $772,405,316 CPGA reliance damages
— the cost Sprint incurred in subscribing a new customer to its network. Souder testified
there are three categories of CPGA: (1) handset subsidies; (2) commissions; and (3)
advertising and marketing. Dr. Taylor testified the average weighted CPGA during the
class period was $388.82 and multiplied this number by the number of class members, for
a total CPGA of $772,405,316.
Plaintiffs’ Reconsideration Motion
      Near the end of Sprint’s case-in-chief, plaintiffs moved for reconsideration of the
order striking their expert designation and precluding Dr. Selwyn from testifying on
Sprint’s damages. Plaintiffs argued the court erred by concluding section 2034.300
“‘compelled’” it to exclude Dr. Selwyn’s testimony and claimed Sprint had not been
prejudiced by the untimely expert designation. Plaintiffs also urged the court to allow
them to read Dr. Selwyn’s 2008 trial testimony into the record: they claimed doing so
would not prejudice Sprint because Dr. Selwyn’s “testimony ha[d] already been given,
and Sprint conducted a full cross-examination[.]”
      Sprint opposed the motion. Among other things, it argued section 2034.300
precluded plaintiffs from offering Dr. Selwyn’s 2008 trial testimony and the testimony
was inadmissible hearsay. Additionally, Sprint claimed it would be prejudiced if
plaintiffs read Dr. Selwyn’s 2008 trial testimony into the record because it would “be
unable to cross-examine Dr. Selwyn regarding his change of damages figures” and
because Sprint had presented its case “under the impression that Dr. Selwyn cannot

5
       Two other Sprint witnesses testified the average handset subsidy during the
relevant time period was $150.
                                            8
present any expert opinion in this trial. If this Court permits Plaintiffs to . . . introduce
Dr. Selwyn’s testimony through the back door, it will force Sprint to attempt to relearn
opinions offered . . . nearly six years ago, and on subjects having nothing to do with the
remaining issues in this case.”
       Following a hearing, the court partially granted the motion and permitted plaintiffs
to read Dr. Selwyn’s 2008 trial testimony into the record. The court concluded this
“lesser sanction” was “more appropriate than the exclusion of all expert testimony by Dr.
Selwyn.” It acknowledged its ruling would “cause some prejudice to Sprint. This is a
change made mid-trial, but Sprint has not demonstrated that its presentation of its own
case was materially different because it relied on Dr. Selwyn not testifying. Sprint will
be permitted to cross-examine Dr. Selwyn, but that cross-examination will necessarily be
limited to the cross-examination on the transcript of the 2008 trial. In the 2008 trial
Sprint was represented by competent counsel and had the same incentive to defend itself
as it has in this retrial. To the extent that Dr. Selwyn’s prior trial testimony presents new
issues on damages that Dr. Taylor did not address, then Sprint may call Dr. Taylor for
redirect. Finally, Sprint’s counsel will not need to prepare for live cross-examination and
will instead need to go through the 2008 transcript and make objections and designations
for completeness just as if a deposition were offered into evidence.”6 The court declined
to permit Sprint to introduce video clips of its 2008 cross-examination of Dr. Selwyn
when it cross-examined him, but allowed Sprint to use the clips during its rebuttal.
Dr. Selwyn’s Testimony
       Plaintiffs’ counsel read portions of Dr. Selwyn’s 2008 trial testimony into the
record at trial. Dr. Selwyn analyzed Sprint’s business and conducted a “cost analysis” to
determine “the financial consequences for Sprint resulting from early terminations.” Dr.
Selwyn determined Sprint suffered $1,054,066,606 in lost revenue, a calculation
somewhat similar to Dr. Taylor’s. Dr. Selwyn concluded, however, Sprint’s avoided cost

6
      The court admitted Dr. Selwyn’s 2008 trial testimony notwithstanding its
conclusion that the testimony did not come within the prior testimony exception to the
hearsay rule (Evid. Code, §§ 240, 1291, 1292).
                                               9
percentage was 98.5 percent, not 18.13 percent as calculated by Baliban. Dr. Selwyn
criticized Baliban’s method of determining the avoided cost percentage. Dr. Selwyn
testified Sprint’s lost profits were $18,425,130. To reach this number, Dr. Selwyn
multiplied the average months remaining on plaintiffs’ contracts (13.25) and Sprint’s
avoided cost (.70) for a total of $9.27. Dr. Selwyn multiplied $9.27 by the number of
class members (1,986,537).
Verdict and Sprint’s Post-Trial Motions
       Plaintiffs moved for a directed verdict on Sprint’s lost profits claim. Sprint also
moved for a directed verdict. The court denied the motions. After one day of
deliberations, the jury returned a special verdict awarding Sprint $18,425,130 in lost
profits and $0 in reliance damages. The court set off Sprint’s recovery of $18,425,130
against plaintiffs’ recovery of $73,775,975 (from the first trial) and determined plaintiffs’
“resulting net recovery will be $55,350,845.”
       A. Sprint’s JNOV Motion
       Sprint moved for JNOV, contending the evidence was insufficient as a matter of
law to support the verdict. Sprint argued it “provided ample uncontroverted evidence in
support of both its reliance and lost profits damage claims and was entitled to a directed
verdict in excess of $300 million. The jury’s verdict finding that Sprint suffered zero
reliance damages simply cannot be supported by evidence, law or logic. Similarly, the
jury’s verdict awarding Dr. Selwyn’s lost profits damages number cannot stand because
the jury acted arbitrarily in rejecting the entire testimonies of Doug Smith, Jeffrey
Baliban and Dr. Taylor to reach this result and because Dr. Selwyn’s testimony should
never have been before this jury for consideration.”
       In opposition, plaintiffs claimed the court had no power to grant JNOV because
the sole issue at trial was the amount of Sprint’s unliquidated damages, and “[u]nder
California law, a trial court has ‘no power to grant JNOV as to unliquidated damages.’”
Plaintiffs also argued substantial evidence supported the jury’s verdict because: (1) Sprint
conceded the parties presented conflicting testimony regarding Sprint’s lost profits; (2)
Dr. Selwyn’s testimony was “substantial evidence supporting the jury’s verdict on lost

                                             10
profits. Indeed, the jury’s verdict on lost profits, $18,425,130, was the exact amount
calculated by Dr. Selwyn. . . . Under the applicable legal standard, Dr. Selwyn’s
testimony is presumed true, and is viewed in the light most favorable to the Class. . . .
Given the conflict between Dr. Taylor’s and Dr. Selwyn’s calculations of lost profits,
JNOV clearly must be denied with respect to lost profits[;]” (3) the lost profits verdict
mooted reliance damages; and (4) substantial evidence supported the jury’s award of $0
reliance damages.
       In reply, Sprint argued the uncontroverted evidence established it suffered reliance
damages which “exceed[ed] and completely offset [p]laintiffs’ claims.” According to
Sprint, the jury’s conclusion Sprint suffered no reliance damages “when it subsidized
nearly 2 million handsets for class members who breached their contracts with two thirds
remaining on the terms . . . cannot be reconciled with law, logic or common sense.”
Sprint also claimed the court erred by admitting Dr. Selwyn’s testimony and without it,
Sprint was entitled to judgment “in the amount testified to by Sprint’s experts.”
       B. Sprint’s New Trial Motion
       Sprint moved for a new trial on 10 grounds (§ 657, subds. (1), (3), (5), (6), (7)).7
Sprint claimed it was entitled to a new trial pursuant to section 657, subdivisions (1), (3),
and (7) because the court’s order allowing plaintiffs to read Dr. Selwyn’s 2008 trial
testimony “at the end of Sprint’s case” was a “‘legal error’” and a “‘surprise’ and an
irregularity in the proceeding” that deprived Sprint of a fair trial. Sprint claimed: (1) the
court was required to exclude Dr. Selwyn’s 2008 trial testimony pursuant to section
2034.300; (2) the court’s decision to admit the testimony violated section 2034.310; (3)

7
         Section 657 states in relevant part: “The verdict may be vacated and any other
decision may be modified or vacated, in whole or in part, and a new or further trial
granted on all or part of the issues, on the application of the party aggrieved, for any of
the following causes, materially affecting the substantial rights of such party: [¶] 1.
Irregularity in the proceedings . . . or any order of the court or abuse of discretion by
which either party was prevented from having a fair trial . . . [¶] 3. Accident or surprise .
. . [¶] 5. Excessive or inadequate damages[;] [¶] 6. Insufficiency of the evidence to
justify the verdict or other decision, or the verdict or other decision is against law[;] [¶] 7.
Error in law, occurring at the trial and excepted to by the party making the application.”
                                              11
Dr. Selwyn’s trial testimony was inadmissible hearsay; and (4) it was prejudiced by the
admission of the testimony.
       Sprint also argued it was entitled to a new trial on reliance damages because “the
jury’s award of $0 in reliance damages was ‘inadequate’” and “indefensible” in light of
“Sprint’s uncontroverted evidence indicat[ing] that it at least suffered $79 million in
commissions expended, $265 million in handset subsidies, and $772 million in total
CPGA.” Sprint claimed a new trial based on “‘inadequate’” damages was warranted
because the uncontroverted evidence supported an award of reliance damages. (§ 657,
subds. (5), (6).)
       Finally, Sprint argued plaintiffs’ counsel’s misconduct constituted an “irregularity
in the proceedings and legal error” (§ 657, subds. (1), (7)). According to Sprint,
plaintiffs’ counsel: (1) misled the jury by suggesting Sprint initiated the lawsuit to seek
affirmative relief from the class; (2) misstated the law on damages; and (3) attempted
“to prove Sprint’s damages through incompetent individualized evidence” in violation of
a court order. Sprint claimed the court compounded these problems by precluding Sprint
from “rebutting these assertions with class-wide data.” Finally, Sprint argued certain jury
instructions were legally erroneous (§ 657, subd. (7)).
       In opposition, plaintiffs argued sufficient credible evidence supported the jury’s
verdict on reliance damages. They also contended the court did not err by admitting Dr.
Selwyn’s 2008 trial testimony, its admission was not a surprise or an irregularity in the
proceedings under section 657, subdivisions (1) and (3), and Sprint was not prejudiced by
its admission. Additionally, plaintiffs claimed Sprint was not prejudiced by any alleged
misconduct by plaintiffs’ counsel, or by the jury instructions. In reply, Sprint argued it
was deprived of a fair trial by the erroneous admission of Dr. Selwyn’s testimony,
counsel for plaintiffs’ misconduct, and the improper jury instructions.
       C. The Court’s Order
       Following a lengthy hearing, the court denied Sprint’s JNOV motion. In a
comprehensive written order, the court determined Sprint’s damages for breach of
contract were “not liquidated and were the subject of conflicting testimony. . . . [¶] As a

                                             12
matter of law, the court cannot enter JNOV on Sprint’s unliquidated contract damages.
The court may grant JNOV ‘only when it can be said as a matter of law that no other
reasonable conclusion is legally deducible from the evidence and that any other holding
would be so lacking in evidentiary support.’ (Spillman v. City Etc. of San Francisco
(1967) 252 Cal.App.2d 782, 786 [(Spillman)].” The court observed it could not
determine the amount of Sprint’s “unliquidated damages” on JNOV because the “‘rules
of law governing the recovery of damages for breach of contract are very flexible.’ . . .
Even if the court were to determine that the evidence did not support the award of
$18,425,130 as Sprint’s lost profits damages, the court could not state that some amount
of damages was correct as a matter of law and that no other reasonable conclusion was
legally deducible.”
       The court denied Sprint’s motion for new trial on reliance damages. In doing so,
the court rejected Sprint’s claim that evidence of its reliance damages was insufficient to
justify an award of $0, observing the “jury could reasonably have decided to limit
recoverable expenditures to those that Sprint incurred after contract formation.” As the
court explained, Sprint presented evidence it expended $79 million on commissions, but
the jury “could have reasonably found that Sprint incurred the commissions as part of
contract acquisition, not in reliance on an executed contract. [¶] Sprint presented evidence
that it subsidized most handsets by approximately $150 each and expended $265 million
on handset subsidies. The jury could have reasonably [found] that Sprint purchased the
handsets in anticipation of contract formation, not in reliance on executed contracts. The
jury could have reasonably found that Sprint’s sale of handsets at below its cost or below
the retail market price was a cost that Sprint incurred to induce contract formation, not in
reliance on executed contracts.” Finally, the court observed Sprint’s CPGA was “$772
[million] for the . . . class. . . . The jury could have reasonably found that Sprint’s CPGA
figure is an unreliable indicator of reliance damages because it includes marketing and
advertising, which are not related to contract performance, handset subsidies, which are
incurred as inducements to contract formation, and . . . commissions, which are incurred
for contract acquisition. [¶] Based on the above, the court finds that the evidence was

                                             13
sufficient to justify the jury’s award of $0 in reliance damages on the jury instruction
given.”
       The court granted Sprint’s motion for new trial on lost profits, revisiting the issue
of the admissibility of Dr. Selwyn’s testimony. It adopted its analysis from the order
striking plaintiffs’ expert designation, and concluded the erroneous admission of Dr.
Selwyn’s testimony constituted an error of law (§ 657, subd. (7)). The court determined
it was required to exclude Dr. Selwyn’s testimony because plaintiffs’ expert designation
was untimely (§§ 2034.260, 2034.300). The court also concluded the error was
prejudicial because “Sprint was unable to cross-examine Dr. Selwyn on the changes in
his testimony between 2008 and 2013 and the jury was unable to evaluate Dr. Selwyn’s
demeanor on the witness stand.” In addition, the court concluded the admission of Dr.
Selwyn’s testimony warranted a new trial on the grounds of irregularity in the
proceedings and surprise (§ 657, subds. (1), (3)) because “[t]he proceedings were
irregular in that Sprint was unable to cross-examine Dr. Selwyn on the changes in his
testimony between 2008 and 2013 and the jury was unable to evaluate Dr. Selwyn’s
demeanor. The reading of Dr. Selwyn’s testimony was a surprise in that the court issued
its order at the close of Sprint’s opening and Sprint had to present testimony in reply that
Sprint would have preferred to present in its opening had it known that Dr. Selwyn would
testify.”
       The court rejected Sprint’s motion for new trial on the grounds of erroneous jury
instructions and counsel for plaintiffs’ alleged misconduct.
                                       DISCUSSION
                                             I.
               We Decline to Consider Plaintiffs’ Challenge to the Denial
                           of Their Directed Verdict Motion
       Plaintiffs appeal from the order denying their directed verdict motion. Sprint
moved to dismiss this portion of plaintiffs’ appeal, contending the directed verdict order
was “neither appealable nor reviewable” under sections 904.1 or 906. We deferred the



                                             14
ruling on the motion. As we explain below, we now grant the motion and dismiss
plaintiffs’ appeal from the denial of their directed verdict motion.
       The order denying plaintiffs’ directed verdict motion is not appealable under
section 904.1. (See Montijo v. Western Greyhound Lines (1963) 219 Cal.App.2d 342,
350; Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group
2014) ¶ 2:258, p. 2-146.) Nor is the order reviewable under section 906, cited by
plaintiffs as the basis for appellate jurisdiction. “Pursuant to section 906, a
nonappealable intermediate order that ‘substantially affects the rights of a party’ may be
reviewed in conjunction with an appeal of a final judgment or appealable order. The
clear import of that provision is to allow an appellate court to review rulings, orders, or
other decisions that led up to, or directly related to, the judgment or order being appealed
to the extent they substantially affected the rights of one of the parties to the appeal. It is
implicit within section 906’s language that the ‘intermediate’ order or decision that
substantially affects the rights of a party must be one that led up to, or directly relates to,
the judgment or order being appealed.” (Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 948 (Cahill).)
       Here, the order denying plaintiffs’ directed verdict motion does not involve the
merits of, necessarily affect, or directly relate to the order partially granting Sprint’s new
trial motion. Plaintiffs’ arguments to the contrary are unpersuasive. At most, plaintiffs’
directed verdict motion was “substantively and/or procedurally collateral to, and not
directly related to, the . . . [¶] . . . order being appealed.” (Cahill, supra, 194 Cal.App.4th
at p. 948.) As a result, the order denying plaintiffs’ motion for directed verdict is not
reviewable under section 906. “The existence of an appealable order or judgment is a
jurisdictional prerequisite to an appeal.” (Canandaigua Wine Co., Inc. v. County of
Madera (2009) 177 Cal.App.4th 298, 302 (Madera).) Because the directed verdict order
is not appealable under sections 904.1 or 906, we must dismiss plaintiffs’ appeal from
that order. (Madera, supra, at p. 302.)
       We decline to consider plaintiffs’ challenge to the denial of their directed verdict
motion for the additional reason they failed to “cite us to any portion of the voluminous

                                              15
record” where they moved for directed verdict or where they argued in the trial court “the
recovery of lost future profits was barred by Civil Code [section] 3300” and Postal
Instant Press, Inc. v. Sealy (1996) 43 Cal.App.4th 1704. (Dincau v. Tamayose (1982)
131 Cal.App.3d 780, 794.) “[T]o demonstrate error, an appellant must supply the
reviewing court with some cogent argument supported by legal analysis and citation to
the record. Rather than scour the record unguided, we may decide that the appellant has
waived a point urged on appeal when it is not supported by accurate citations to the
record.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287.) “The
larger and more complex the record, the more important it is for the litigants to adhere to
appellate rules.” (Id. at p. 287.) It is not enough for plaintiffs to identify the date where
they moved for directed verdict, because the reporter’s transcript of the hearing on that
date is over 250 pages. Plaintiffs have waived any challenge to the denial of their
directed verdict motion by failing to cite to a place in the record where they moved for
directed verdict or asserted the argument they raise here. (Ibid.)
                                              II.
                    The Court Properly Denied Sprint’s JNOV Motion
       Sprint challenges the denial of its JNOV motion, claiming the court “committed
legal error” by concluding it could not, as a matter of law, “enter JNOV on Sprint’s
unliquidated contract damages.” Sprint also claims it was entitled to JNOV because
evidence of its damages was uncontroverted. “The denial of a motion for judgment
notwithstanding the verdict is reviewed for substantial evidence to support the verdict.
[Citation.] If the ruling involves a purely legal question, however, it is reviewed de novo.
[Citation.]” (Sanchez v. Brooke (2012) 204 Cal.App.4th 126, 134-135.)
       A. The Court Did Not Make a “Legal Error” by Denying Sprint’s JNOV Motion
       On appeal, Sprint contends the court’s conclusion that it was “legally barred from
granting Sprint JNOV because its damages were purportedly ‘unliquidated’” was a “legal
error.” Sprint’s focus on the word “unliquidated” in the court’s order is myopic. A
careful reading of the court’s order demonstrates the court denied Sprint’s JNOV motion
because the evidence of Sprint’s damages was conflicting. As stated above, the court
                                              16
denied the JNOV motion because Sprint’s damages on its breach of contract claim were
“not liquidated and were the subject of conflicting testimony.” Citing Spillman, supra,
252 Cal.App.2d 782, the court explained it could “grant JNOV ‘only when it can be said
as a matter of law that no other reasonable conclusion is legally deducible from the
evidence and that any other holding would be so lacking in evidentiary support.’
[Citation.]” The court observed it could not determine the amount of Sprint’s
“unliquidated damages” on JNOV because the “‘rules of law governing the recovery of
damages for breach of contract are very flexible.’ . . . Even if the court were to determine
that the evidence did not support the award of $18,425,130 as Sprint’s lost profits
damages, the court could not state that some amount of damages was correct as a matter
of law and that no other reasonable conclusion was legally deducible.”8 (Italics added.)
       The court’s reliance on Spillman supports the conclusion that the court denied the
JNOV motion not because Sprint’s damages were “unliquidated” but because the court
could not conclude only one amount of damages was correct as a matter of law. In
Spillman, the plaintiff sued the City and County of San Francisco and one of its
employees (collectively, City) after a City employee hit her with a City-owned car.
(Spillman, supra, 252 Cal.App.2d at p. 783.) At trial, plaintiff offered evidence regarding
the accident and her injuries, but the City was “successful in impeaching [her] credibility
in a variety of ways” and offered an expert witness who provided evidence disputing the
extent of the plaintiff’s injuries. (Id. at p. 785.) A jury returned a verdict for the plaintiff
on liability and for the City on damages. (Id. at p. 786.) The court then granted
plaintiff’s JNOV motion and ordered judgment for plaintiff for $10,000. (Ibid.)


8
         The court’s reference to JNOV being improper where damages are “unliquidated”
may have come from a practice guide stating a trial court has “[n]o power to grant JNOV
as to unliquidated damages” and explaining: “[w]here damages are unliquidated (e.g.,
personal injury, pain and suffering), the judge may not grant a plaintiff’s JNOV motion
on liability and also assess damages in a particular amount. Doing so deprives defendant
of its right to jury trial on damages issues.” (Wegner, et al., Cal. Practice Guide: Civil
Trials and Evidence (The Rutter Group 2014) ¶ 18:17, pp. 18-4-18-5 (Rutter), citing
Spillman, supra, 252 Cal.App.2d at p. 786.)
                                               17
       The City appealed, and a division of this court reversed, explaining “judgment
notwithstanding the verdict may be sustained only when it can be said as a matter of law
that no other reasonable conclusion is legally deducible from the evidence and that any
other holding would be so lacking in evidentiary support that the reviewing court would
be compelled to reverse it or the trial court would be required to set it aside as a matter of
law. [Citation.] The court is not authorized to determine the weight of the evidence or
the credibility of witnesses. [Citation.] Even though a court might be justified in
granting a new trial, it would not be justified in directing a verdict or granting judgment
notwithstanding the verdict on the same evidence. [Citation.]” (Spillman, supra, 252
Cal.App.2d at p. 786.)
       The Spillman court concluded “there was considerable conflict in the evidence as
to the amount of damages sustained by plaintiff, and that since her credibility was
seriously impeached, the jury was entitled to disregard much of her testimony. Under
such circumstances, . . . the court clearly abused its discretion in granting judgment
notwithstanding the verdict and . . . usurped [the City’s] right to a trial by jury when it
took upon itself to reweigh the evidence and, despite the conflicts therein, to fix plaintiff's
damages at $10,000.” (Spillman, supra, 252 Cal.App.2d at pp. 786-787.) The court
explained that “the fact that the jury would have been justified in rendering a verdict in
the amount of $10,000 clearly does not mean that the court was correct in granting
judgment notwithstanding the verdict in that amount. A verdict in a substantially lower
amount would also have been entirely in accord with the evidence.” (Id. at p. 787.)
       We reject Sprint’s claim that the court “committed legal error” when it denied
Sprint’s JNOV motion. The court based its ruling on the well-established principle
articulated in Spillman that JNOV is inappropriate where there is conflicting evidence on
damages. (Spillman, supra, 252 Cal.App.2d at pp. 786-787; Hozz v. Felder (1959) 167
Cal.App.2d 197, 200 [court could not grant JNOV where “the jury could have returned
various verdicts, all supported by substantial evidence”].)




                                              18
       B. Sprint Was Not Entitled to JNOV on Lost Profits Damages
       Sprint contends the court erred by failing to grant JNOV on its claim for lost
profits damages because it offered evidence it suffered $1.059 billion in lost profits, and
this figure “would have remained completely uncontroverted at trial” but for the court’s
error in admitting Dr. Selwyn’s 2008 trial testimony. The problem with this argument is
“[e]ven evidence improperly admitted during trial constitutes ‘substantial evidence’ on a
JNOV motion. . . . The proper remedy to review erroneous evidentiary rulings is a motion
for new trial or appeal.” (Rutter, supra, ¶ 18:57, p. 18-13; Donahue v. Ziv Television
Programs, Inc. (1966) 245 Cal.App.2d 593.) As we discuss infra, the “proper remedy”
for the erroneous admission of Dr. Selwyn’s testimony, “would be a new trial” on lost
profits, which Sprint “will, of course, have.” (Id. at p. 610.)
       C. Sprint Was Not Entitled to JNOV on Reliance Damages
       According to Sprint, the court erred by denying its motion for JNOV on reliance
damages because the evidence supporting that measure of damages was “completely
uncontroverted at trial” and because “[t]here was no evidence supporting the jury’s $0
reliance verdict[.]”
       Reliance damages are an alternative measure of damages for breach of contract.
(1 Witkin, Contracts (10th ed. 2005) § 883, p. 970 (Witkin); US Ecology, Inc. v. State of
California (2005) 129 Cal.App.4th 887, 907; see also Agam v. Gavra (2015) 236
Cal.App.4th 91 [defining reliance damages].) Reliance damages are “frequently sought
or awarded where, because of uncertainty or difficulty of proof or other reason, the
plaintiff is unable to establish a claim for lost profits.” (Witkin, supra, § 883, at p. 970.)
As one commentator has explained, “a party that fails to meet the burden of proving
prospective profits is not necessarily relegated to nominal damages. The requirement of
certainty also applies to damages based on reliance. But a party that has relied on a
contract can usually meet the burden of proving with sufficient certainty the extent of that
reliance, even if unable to meet that burden as to profits. The injured party can then
recover damages for total breach based on reliance. . . .” (III Farnsworth on Contracts
(3d ed. 2004) § 12:16, pp. 279-280 (Farnsworth).)
                                              19
       “Reliance damages are used ‘to put the non-breaching party in “as good a position
as [it] would have been in had the contract not been made.”’ [Citation.]” (American
Capital Corp. v. F.D.I.C. (Fed. Cir. 2006) 472 F.3d 859, 867; Glendale Federal Bank,
FSB v. U.S. (Fed. Cir. 2001) 239 F.3d 1374, 1383.) Reliance damages are typically
defined as the “the amount of the plaintiff’s expenditures, together with the reasonable
value of his or her own services, in preparation and performance in reliance on the
contract.” (Witkin, supra, § 883, p. 970.) Reliance damages do not include “costs
incurred before the contract was made.” (Farnsworth, supra, § 12:16, p. 280, fn.
omitted.) “[B]ecause reliance damages seek to measure the injured party’s ‘cost of
reliance’ on the breached contract, ‘an injured party cannot recover for costs incurred
before that party made the contract.’” (DPJ Co. Ltd. Partnership v. F.D.I.C. (1st Cir.
1994) 30 F.3d 247, 250 (DPJ), quoting Farnsworth on Contracts (2d ed. 1990) § 12.16, p.
928, n. 2.)
       Relying on Buxbom v. Smith (1944) 23 Cal.2d 535 (Buxbom), Sprint contends
reliance damages include expenses incurred before the contract is formed. Buxbom was
an action for breach of contract to publish and distribute a newspaper. (Id. at p. 538.)
Our high court defined reliance damages as: “‘Where, without fault on his part, one party
to a contract who is willing to perform it is prevented from doing so by the other party,
the primary measure of damages is the amount of his loss, which may consist of his
reasonable outlay or expenditure toward performance, and the anticipated profits which
he would have derived from performance.’ [Citations.]” (Id. at p. 541.) The court held
the plaintiff could not recover reliance damages because he did “not seek to show with
any degree of monetary certainty . . . some reasonable outlay or expenditure in
anticipation of performance[.]” (Id. at pp. 541-542.)
       Buxbom does not assist Sprint, because it did not hold reliance damages include
expenses incurred prior to contract formation. Buxbom held a “party to a contract” may
recover reliance damages when he or she is willing to perform, but is prevented from
doing so by the “other party” to the contract. (Buxbom, supra, 23 Cal.2d at p. 541.)
Buxbom refers to outlays or expenditures made in “anticipation of performance[,]” of the

                                             20
contract, not anticipation of making the contract. (Id. at p. 542, italics omitted.) Under
Buxbom, reliance damages are limited to expenses incurred after the parties enter into a
contract.9
       Sprint’s reliance on the Restatement Second of Contracts section 349 (Restatement
section 349) is similarly unavailing. Restatement section 349 provides: “As an
alternative to the measure of damages . . . the injured party has a right to damages based
on his reliance interest, including expenditures made in preparation for performance or in
performance, less any loss that the party in breach can prove with reasonable certainty the
injured party would have suffered had the contract been performed.” (Rest.2d Contracts,
§ 349.) Nothing in Restatement section 349 suggests reliance damages include
expenditures made before a contract is entered.
       Sprint repeatedly contends it was entitled to JNOV on its claim for reliance
damages because the evidence was “uncontroverted” and because plaintiffs did not offer
“any evidence to contradict” Sprint’s evidence of reliance damages. There are two
problems with this argument. First, it ignores the rule that reliance damages do not
include “costs incurred before the contract was made (see Farnsworth, supra, § 12:16, p.
280.) At trial, there was evidence suggesting some of the costs Sprint claimed as reliance
damages were incurred prior to contract formation. For example, on cross-examination,
Dr. Taylor listed the categories of CPGA — handset subsidy, expenses associated with
selling, marketing, customer care, product development, and general administrative
functions — and stated, “‘these costs are incurred before the customer is acquired.’”
When asked whether this statement was accurate, Dr. Taylor clarified, “Equal to or
9
        Cases from other jurisdictions have reached a similar conclusion. (Hollywood
Fantasy Corp. v. Gabor (5th Cir. 1998) 151 F.3d 203, 214 & fn. 4 [the “general rule is
that the nonbreaching party may only recover out-of-pocket expenses incurred after the
contract was formed”]; Drysdale v. Woerth (E.D. Pa. 2001) 153 F.Supp.2d 678, 684
[expenses incurred prior to contract formation “were not made in reliance on any promise
of the defendant nor were they made in performance of the contract promise”]; Gruber v.
S-M News Co. (S.D.N.Y. 1954) 126 F.Supp. 442, 447 [plaintiff could not recover cost of
plates for printing cards “since these had already been fabricated prior to making the
contract with defendant”].)

                                             21
before. I mean, if you look at handset subsidy, for example, that is incurred when the
customer is acquired; similarly, the commission one, the commission is paid when the
customer is acquired.” Dr. Souder defined CPGA as “costs that are incurred to attract
customers to Sprint” and that CPGA costs such as advertising and marketing are incurred
before a customer enters into an agreement with Sprint. Dr. Souder testified handset
subsidies and commissions are incurred when the customer “activates a phone and enters
into an agreement” with Sprint. In light of this evidence, the jury could have reasonably
concluded some or all of Sprint’s costs were incurred prior to contract formation, rather
than in reliance on executed contracts.
       Second — and as demonstrated above — the evidence supporting Sprint’s reliance
damages was not “uncontroverted.” Sprint’s own experts provided equivocal testimony
about when Sprint incurred certain costs, and there was evidence suggesting Sprint’s
calculations regarding handset subsidies were inaccurate, and the amounts Sprint paid for
Samsung and Motorola handsets was lower than the prices shown on invoices. And as
Sprint’s counsel acknowledged during closing argument, “[t]here are a lot of facts and a
lot of calculations and things that are in dispute[.]” Finally, assuming the evidence was
— as Sprint contends — “uncontroverted[,]” the jury was free to reject it. “‘[E]xpert
testimony, like any other, may be rejected by the trier of fact, so long as the rejection is
not arbitrary.’ [Citation.] Thus, ‘[a]s a general rule, “[p]rovided the trier of fact does not
act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is
uncontradicted. [Citations.]” [Citation.] This rule is applied equally to expert
witnesses.’ [Citation.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632.)
       Neither Aetna Life & Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d
865 (Aetna) nor Dickenson v. Samples (1951) 104 Cal.App.2d 311 (Dickenson)
demonstrate the court erred by denying Sprint’s JNOV motion on reliance damages.
Aetna was a condemnation action, where the trial court granted plaintiff property owners’
motion for directed verdict on the amount of their damages. (Aetna, supra, 170
Cal.App.3d at p. 876.) The “[d]efendants offered no evidence on damages, relying
instead upon cross-examination of plaintiffs’ expert witness and of the homeowners to

                                              22
convince the jury that plaintiffs’ damages were less than requested.” (Ibid.) Aetna is
distinguishable. “[S]pecial evidentiary rules” apply in a condemnation action which
prohibit the jury from disregarding evidence regarding the property’s value and from
rendering a verdict exceeding or falling below the limits established by the plaintiffs and
their qualified expert witnesses. (Id. at p. 877.) This is not a condemnation action, and as
a result, the jury was free to disregard Sprint’s evidence and to conclude it did not suffer
reliance damages. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.)
       Dickenson is also inapposite. In that case, which concerned rent due under a lease
agreement, the jury declined to award the plaintiff damages. The appellate court
reversed, noting the defendant admitted “the rent was to be one third of profits” and the
uncontradicted evidence showed a profit “of $163” for the month at issue. (Dickenson,
supra, 104 Cal.App.2d at p. 313.) The Dickenson court explained, “[e]vidence which is
uncontradicted and not inherently improbable may not be disregarded by the trier of
fact.” (Id. at p. 314.) Dickenson has no application here because there was no such
admission in this case, and the evidence was not simple, straightforward, or
uncontradicted.
       Sprint’s own brief demonstrates why it would have been inappropriate for the
court to grant Sprint’s motion for JNOV on reliance damages. Sprint claims entry of
JNOV was “require[d]” for $772,405,316 in CPGA reliance damages or for $79,461,915
in commissions and $265,350,992 in handset subsidies. Which of these different
amounts was required by law Sprint does not tell us. As we have explained, the evidence
supporting Sprint’s reliance damages was “not uncontested, as [Sprint] represents on
appeal. Having reviewed the transcript of the trial, and recognizing that it was the
exclusive province of the jury to determine the weight and sufficiency of the evidence,
we cannot find a basis for overturning the verdict. The trial court did not err in denying
the motion for JNOV” on Sprint’s reliance damages. (Linear Technology Corp. v. Tokyo
Electron, Ltd. (2011) 200 Cal.App.4th 1527, 1534.)




                                             23
                                              III.
                    The Court Did Not Err by Granting a New Trial on
                              Sprint’s Lost Profits Damages
        As stated above, the court granted Sprint’s new trial motion on Sprint’s lost profits
damages, concluding the admission of Dr. Selwyn’s 2008 trial testimony was: (1) an
“irregularity in the proceedings” that prevented Sprint from receiving a fair trial; (2) a
“surprise that ordinary prudence could not have guarded against[;]” and (3) an “error[ ] of
law” that prejudiced Sprint.
        A. Section 657 and Standards of Review
        Section 657 authorizes the trial court to grant a new trial on seven statutorily
specified grounds, including “[i]rregularity in the proceedings of the court, . . . or any
order of the court or abuse of discretion by which either party was prevented from having
a fair trial[;]” (2) “[a]ccident or surprise, which ordinary prudence could not have
guarded against[;]” (3) “[e]xcessive or inadequate damages” or “[i]nsufficiency of the
evidence to justify the verdict or other decision[;]” or (4) “[e]rror in law, occurring at the
trial and excepted to by the party making the application.” (§ 657, subds. (1), (3), (5),
(6), (7).)
        We review the court’s order granting a new trial under section 657, subdivisions
(1), (3), (5), and (6) for abuse of discretion. (Bell v. Bayerische Motoren Werke
Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1122 [reviewing grant of new trial
based on “[i]rregularity in the proceedings” for abuse of discretion]; In re Adoption of
Curtis (1961) 195 Cal.App.2d 179, 184 [“granting . . . a motion for a new trial on the
ground of surprise is largely a matter of discretion”]; Dodson v. J. Pacific, Inc. (2007)
154 Cal.App.4th 931 (Dodson) [reviewing denial of new trial motion on inadequacy of
damages for abuse of discretion].)
        B. The Court Was Well Within its Discretion to Grant a New Trial Based on
           Irregularity in the Proceedings or Surprise Preventing Sprint From Receiving a
           Fair Trial
        As we have explained, the court’s initial pretrial ruling excluded Dr. Selwyn’s
testimony. Near the end of Sprint’s case-in-chief, however, the court issued a different
                                              24
ruling permitting plaintiffs to read Dr. Selwyn’s 2008 trial testimony into the record. The
court concluded this “lesser sanction” was “more appropriate than the exclusion of all
expert testimony by Dr. Se[lw]yn.” The court subsequently granted Sprint’s new trial,
concluding — among other things — that the admission of Dr. Selwyn’s testimony
warranted a new trial on the grounds of irregularity in the proceedings and surprise (§
657, subds. (1), (3)) because: (1) “Sprint was unable to cross-examine Dr. Selwyn on the
changes in his testimony between 2008 and 2013 and the jury was unable to evaluate Dr.
Selwyn’s demeanor[;]” and (2) “[t]he reading of Dr. Selwyn’s testimony was a surprise in
that the court issued its order at the close of Sprint’s opening and Sprint had to present
testimony in reply that Sprint would have preferred to present in its opening had it known
that Dr. Selwyn would testify.”
       Plaintiffs claim Sprint waived its right to a new trial for “irregularity in the
proceedings” or “surprise” (§ 657, subds. (1), (3)) by failing to move for a continuance or
mistrial. As a general rule, a party seeking a new trial based on accident or surprise (§
657, subd. (3)) must seek relief at the earliest opportunity . . . which means the motion
[for new trial] will be denied if the problem could have been cured by earlier motion for
mistrial, request for continuance, . . . etc.” (Haning, et al., Cal Practice Guide: Personal
Injury (The Rutter Group 2014) § 10:18, p. 10-10.) Plaintiffs rely on Kauffman v. De
Mutiis (1948) 31 Cal.2d 429 (Kauffman), where defense counsel knew a material witness
would not testify at trial, and made a strategic decision not to move for a continuance,
which demonstrated counsel “intended to speculate upon a favorable verdict.” (Id. at p.
433.) This case is unlike Kauffman. There was no evidence Sprint made a strategic
decision not to move for a mistrial or continuance, nor is there any evidence Sprint
“intended to speculate upon a favorable verdict.” (Ibid.) Sprint vigorously opposed
plaintiffs’ motion to admit Dr. Selwyn’s testimony midway through trial, and seeking a
mistrial or continuance “probably would have been futile[.]” (Whitfield v. Debrincat
(1937) 18 Cal.App.2d 730, 737 [affirming grant of new trial notwithstanding moving
party’s failure to seek a continuance]; City of Fresno v. Harrison (1984) 154 Cal.App.3d
296, 301-302 (Harrison).) Here, it is reasonable to conclude Sprint “acted in good faith

                                              25
in omitting to apply for relief at an earlier stage in the proceedings.” (Delmas v. Martin
(1870) 39 Cal. 555, 558; Santillan v. Roman Catholic Bishop of Fresno (2012) 202
Cal.App.4th 708, 730.)
       The court did not err by concluding the reversal of its previous order midway
through trial was an “[i]rregularity in the proceedings” (§ 657, subd. (1)) and a “surprise”
(§ 657, subd. (3)) preventing Sprint from receiving a fair trial. Harrison, supra, 154
Cal.App.3d 296 is instructive. There, the issue at trial was the amount of the defendant
property owners’ damages in an eminent domain action. (Id. at p. 298.) The plaintiff
municipality failed to timely disclose its expert witness, but the trial court allowed the
plaintiff’s expert to testify at trial over the defendants’ objection. (Id. at p. 299.) The
plaintiff’s expert testified the defendants’ damages were $0, and the jury adopted this
number and concluded the defendants suffered no damages. (Id. at p. 298.) The trial
court granted the defendants’ new trial motion, concluding an irregularity in the
proceeding and accident or surprise prevented defendants from having a fair trial.
Harrison affirmed and determined the “trial court could rightly find a denial of a fair trial
resulted from the unexpected testimony of [the plaintiff’s] expert.” (Id. at pp. 300-301.)
Here as in Harrison, the court admitted Dr. Selywn’s expert testimony midway through
trial, over Sprint’s objection. And like the Harrison jury, this jury found Dr. Selwyn’s
testimony persuasive and adopted his lost profits damages figure. Under these
circumstances, the trial court rightly concluded the admission of Dr. Selwyn’s 2008 trial
testimony was an “[i]rregularity in the proceedings” and a “surprise” which deprived
Sprint of a fair trial. (Ibid.; § 657, subds. (1), (3).)
       The court’s decision on last day of Sprint’s case-in-chief to allow plaintiffs to read
Dr. Selwyn’s 2008 trial testimony clearly prejudiced Sprint. Sprint relied on the court’s
initial ruling excluding Dr. Selwyn’s testimony when it presented its case at trial: it did
not address Dr. Selwyn’s expert opinions in its case-in-chief and limited the testimony it
presented on damages to expedite the trial presentation and scale back the issues before
the jury. When the court changed its mind and allowed plaintiffs to read Dr. Selwyn’s
2008 trial testimony into the record, Sprint’s case-in-chief was nearly complete and

                                                26
Sprint was unable to present additional witnesses and testimony to counter Dr. Selwyn’s
testimony, and had to present evidence on rebuttal. (Zellerino v. Brown (1991) 235
Cal.App.3d 1097, 1117-1118 [plaintiff’s conduct prejudiced the defense, “which did not
have the ability to counter the testimony of the belatedly disclosed experts”].)
Additionally, Sprint was precluded from effectively cross-examining Dr. Selwyn.
(Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1526 [erroneous admission of
testimony deprived the defendant of the “opportunity to cross-examine”].) Plaintiffs
offer a variety of arguments, none of which demonstrate the court erred by concluding
Sprint was prejudiced.
       According to plaintiffs, a court’s reversal of a previous order midway through trial
cannot “be an irregularity or a surprise upon which a new trial order can be based”
because in limine motions are always “subject to revision during trial.” The problem
with this argument is the cases upon which plaintiffs rely do not support such a sweeping
conclusion. People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451 concerned
whether writ review was appropriate when a trial court excluded prosecution evidence as
a discovery sanction. In the portion of Mitchell upon which plaintiffs rely, the court
rejected the real party in interest’s argument that an in limine order did not prejudice the
prosecution. (Id. at p. 460.) Cristler v. Express Messenger Systems, Inc. (2009) 171
Cal.App.4th 72 questioned whether the plaintiff was entitled to review of an in limine
order on appeal, and People v. Riva (2003) 112 Cal.App.4th 981 (Riva) considered
whether “pretrial rulings on the admissibility of evidence . . . should be reviewable by
another judge following a mistrial[.]” (Id. at p. 992.) None of these cases stand for the
proposition that a court’s reversal of its previous order midway through trial cannot
constitute an “[i]rregularity in the proceedings” (§ 657, subd. (1)) or a “surprise” (§ 657,
subd. (3)) preventing a party from receiving a fair trial.
       Nor does Scott v. C.R. Bard, Inc. (2014) 231 Cal.App.4th 763 (Scott) assist
plaintiffs. There, the trial court initially excluded certain evidence pursuant to a motion
in limine; during trial, the court reversed the ruling and admitted the evidence. (Id. at p.
771.) The appellate court upheld the ruling, concluding the defendant’s opening

                                              27
statement made the evidence relevant and the trial “court had made it clear to both parties
when it made the in limine rulings that they were subject to change and [the defendant]
was aware of this when it questioned the potential jurors.” (Id. at p. 784.) Scott is
completely distinguishable. Here, the court’s initial ruling excluding plaintiffs’ expert
witnesses was not “tentative” and nothing in Sprint’s opening statement or case-in-chief
changed the relevance of Dr. Selwyn’s testimony.
       We conclude the court was well within its discretion to order a new trial on
Sprint’s lost profits damages on the grounds of “[i]rregularity in the proceedings of the
court[,] ” or “[a]ccident or surprise[,] ” (§ 657, subds. (1), (3)). Having reached this
result, we need not address the grant of new trial on the ground that the admission of Dr.
Selwyn’s testimony was an “[e]rror in law” (§ 657, subd. (7)) or Sprint’s claim that Dr.
Selwyn’s testimony was hearsay and the court “committed legal error” by admitting it.10
                                             IV.
              Sprint Was Not Entitled to a New Trial on Reliance Damages
       Sprint challenges the court’s denial of its motion for new trial on reliance
damages.
       A. The Trial Court Properly Rejected Sprint’s Arguments Regarding the Jury
          Instructions
       In the trial court, Sprint claimed it was entitled to a new trial on reliance damages
based on erroneous jury instructions (§ 657, subd. (7)). The court rejected this argument
and determined the jury instructions on contract damages (Jury Instruction No. 24),
reliance damages (Jury Instruction No. 26), and nominal damages (Jury Instruction No.
28) were correct, and that Jury Instruction No. 28 may have been “unnecessary,” but “its
inclusion did not prejudice Sprint” because the jury did not award nominal damages. We
review de novo the court’s denial of Sprint’s new trial on reliance damages based on an

10
       Sprint urges us to preclude plaintiffs from offering any expert opinion testimony
on retrial. We decline to do so. “Since we conclude that retrial will be required on
remand, we express no opinion as to the propriety or necessity of discovery in any further
proceedings.” (Morrical v. Rogers (2013) 220 Cal.App.4th 438, 459, fn. 19.)

                                             28
alleged error in law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; § 657,
subd. (7).)
       On appeal, Sprint reprises its claim that Jury Instructions Nos. 24, 26, and 28 were
“legally erroneous” and deprived it of a fair trial. As stated above, Jury Instruction No.
24, Introduction to Contract Damages, identified the damages Sprint was seeking and
provided, among other things, “[a]ny damages awarded must be proven to be either: [¶]
Damages which were likely to arise in the ordinary course of events from the breach of
the contract; or [¶] Damages which the parties could have reasonably foreseen as the
probable result of the breach.” Sprint claims Jury Instruction No. 24 — the instruction
providing an overview of contract damages — “should not have included a foreseeability
requirement” because neither lost profits nor reliance damages “requires damages to be
‘reasonably foreseen.’”
       Sprint has not demonstrated the instruction was erroneous. The instruction,
derived from CACI No. 350, correctly states the law. (See Civ. Code, § 3300; Reese v.
Wong (2001) 93 Cal.App.4th 51, 61.) Sprint’s reliance on a trio of cases does not
demonstrate the instruction was erroneous. Nor has Sprint demonstrated prejudice.
(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule) [no reversal for
instructional error in a civil case unless “‘the error complained of has resulted in a
miscarriage of justice’”].)
       Sprint also claims Jury Instruction No. 26 was “legally erroneous because it
suggested to the jury that damages incurred pre-contract formation were not recoverable”
as reliance damages. Jury Instruction No. 26 defined reliance damages as “the amount
that Sprint expended in reliance for preparation or performance on the contracts from the
dates the contracts were entered into until the dates of breach.” The jury instruction
correctly states the law. As we have explained, reliance damages do not include “costs
incurred before the contract was made.” (Farnsworth, supra, § 12:16, p. 280, fn. omitted;
see also Buxbom, supra, 23 Cal.2d at pp. 541-542; DPJ, supra, 30 F.3d at p. 250.)
       Finally, Sprint argues Jury Instruction No. 28 on nominal damages was
“unnecessary” because “there was no dispute” Sprint suffered damages of at least

                                             29
$18,425,130 as a result of plaintiffs’ breaches of contract. Sprint also claims it was
prejudiced by the instruction because the jury relied on it “to award Sprint $0 in reliance
damages.” Jury Instruction No. 28 defined nominal damages and provided: “If you
decide that . . . Sprint was not harmed by the class members’ breach, you may award
Sprint nominal damages, such as one dollar.”
        We reject Sprint’s challenge to Jury Instruction No. 28 for several reasons. First,
it is unsupported by authority. When an appellant “fails to raise a point, or asserts it but
fails to support it with reasoned argument and citations to authority, we treat the point as
waived.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Second, the
jury instruction correctly states the law. (See Civ. Code, § 3360, CACI No. 360.) Third,
and assuming the jury instruction was unnecessary, there is no evidence supporting
prejudice, i.e. that the jury used the instruction as a justification to award Sprint $0 in
reliance damages. (Soule, supra, 8 Cal.4th at p. 580.) “Instructional error in a civil case
is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’
[Citations.]” (Ibid.) There is no such probability here. That the jury asked for the
definition of “harm” in Jury Instruction No. 28 does not suggest the jury relied on that
instruction to award Sprint $0 in reliance damages, or that the jury was confused by the
instruction. (See Uriell v. Regents of University of California (2015) 234 Cal.App.4th
735, 746 [rejecting confusion argument].) The jury instruction was not specific to
reliance damages, and the jury declined to award nominal damages. Instead it
determined Sprint was “harmed” and awarded lost profits damages.
        We conclude the court properly denied Sprint’s motion for a new trial on reliance
damages based on allegedly erroneous jury instructions. (Soule, supra, 8 Cal.4th at p.
583.)
        B. The Court Properly Rejected Sprint’s Arguments Regarding the Insufficiency
           of the Evidence to Support the Reliance Damages Verdict
        Sprint argued it was entitled to a new trial because the evidence was insufficient to
justify the jury’s award of $0 in reliance damages (§ 657, subd. (6)). The court disagreed
and explained the jury “could reasonably have decided to limit recoverable expenditures

                                              30
to those that Sprint incurred after contract formation.” According to the court, the jury
could have determined: (1) Sprint expended $79 million on commissions “as part of
contract acquisition, not in reliance on an executed contract[;]” (2) Sprint incurred $265
million in handset subsidies “in anticipation of contract formation, not in reliance on
executed contracts[;]” and (3) Sprint’s CPGA of $772 million was “an unreliable
indicator of reliance damages” because it included “marketing and advertising, which are
not related to contract performance, handset subsidies, which are incurred as inducements
to contract formation, and [ ] commissions, which are incurred for contract acquisition.”
       Sprint contends it was entitled to a new trial on reliance damages because the
“jury’s $0 verdict was not supported by law or fact.” “‘The amount of damages is a fact
question, first committed to the discretion of the jury and next to the discretion of the trial
judge on a motion for new trial. . . . As a result, all presumptions are in favor of the
decision of the trial court [citation].’” (Izell v. Union Carbide Corporation (2014) 231
Cal.App.4th 962, 978; Dodson, supra, 154 Cal.App.4th 931.
       As we have explained, reliance damages do not include expenses incurred before
contract formation. (Buxbom, supra, 23 Cal.2d at p. 541; Farnsworth, supra, § 12:16, p.
280.) As the party claiming reliance damages, Sprint had the burden to prove it suffered
damage and to “prove the elements thereof with reasonable certainty.” (Mendoyoma, Inc.
v. County of Mendocino (1970) 8 Cal.App.3d 873 (Mendoyoma).) As discussed above,
the evidence supporting Sprint’s reliance damages was equivocal and the jury could
reasonably conclude some or all of Sprint’s costs were incurred prior to contract
formation, rather than on reliance on executed contracts. Under the circumstances, the
court was well within its discretion to conclude Sprint did not satisfy its burden to prove
it incurred certain costs in anticipation of performance of its contracts with class
members. (Mendoyoma, supra, 8 Cal.App.3d at pp. 880-881.)
       The cases upon which Sprint relies — beginning with Smith v. Covell (1980) 100
Cal.App.3d 947 (Covell) —do not demonstrate the court abused its discretion by denying
Sprint’s new trial motion on reliance damages. Covell and the other cases cited by Sprint
concern the adequacy of a damages award failing to compensate the plaintiff for loss of

                                              31
consortium or pain and suffering. (Id. at p. 956 [jury failed “to follow the court’s
instructions of law” when it declined to award loss of consortium damages “[i]n the face
of uncontradicted evidence”]; Dodson, supra, 154 Cal.App.4th at pp. 937-938 [plaintiff
established right to recover pain and suffering damages, and defendants’ fault].) This
case does not concern loss of consortium or pain and suffering. Moreover, there is no
indication the jury failed to follow the court’s reliance damage jury instruction, or that
Sprint was entitled to reliance damages as a matter of law. We conclude the court’s
denial of Sprint’s new trial motion on this basis was not an abuse of discretion.
        C. Sprint Is Not Entitled to a New Trial Based on Alleged Attorney Misconduct
        Finally, the court rejected Sprint’s argument that plaintiffs’ counsel committed
misconduct constituting an “[i]rregularity in the proceedings” and warranting a new trial
(§ 657, subd. (1).)) The court found some “[i]rregularity in the proceedings” because
plaintiffs’ counsel: (1) presented individualized evidence regarding two class members;
(2) attacked Sprint for failing to consider individual evidence; (3) misrepresented the
case’s procedural posture to the jury; and (4) argued Sprint’s evidence was deficient
because Sprint did not “put its expert reports into evidence.” The court, however,
determined the irregularity was cured by “Sprint’s objections and the court’s resulting
actions” and concluded: “[c]onsidering the alleged misconduct in the aggregate, the court
is not persuaded that [plaintiffs’] counsel engaged in misconduct that deprived Sprint of a
fair trial.”
        Sprint contends it is entitled to a new trial on “all” of its damages, “not just lost
profits” because of plaintiffs’ counsel’s misconduct. “[T]he term ‘misconduct’ means
serious errors by counsel that may result in rebuke by the court or an order granting
mistrial[.]” (Rutter, supra, ¶ 6:42, p. 6-10.) “Attorney misconduct is a ground for a new
trial.” (Rayii v. Garcia (2013) 218 Cal.App.4th 1402, 1411 (Rayii), citing § 657, subd.
(1).) “A claim of misconduct is entitled to no consideration on appeal unless the record
shows a timely and proper objection and a request that the jury be admonished.”
(Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 211 (Dominguez).) We consider
the merits of Sprint’s misconduct claims because plaintiffs do not contend Sprint waived
                                               32
these claims by failing “to assign the conduct as misconduct and request an admonition.”
(Id. at p. 211.)
       “[W]hen attorney misconduct is at issue, we must independently consider whether
the misconduct resulted in prejudice. Prejudice exists if it is reasonably probable that the
jury would have arrived at a verdict more favorable to the moving party in the absence of
the irregularity or error.” (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1249 (Pope);
Rayii, supra, 218 Cal.App.4th at p. 1411.) To determine whether Sprint was prejudiced,
we “must determine whether it is reasonably probable [Sprint] would have achieved a
more favorable result in the absence of” any attorney misconduct. We examine “the
entire case, including the evidence adduced, the instructions delivered to the jury, and the
entirety of [counsel’s] argument[.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780,
802 (Cassim).)
       Sprint identifies eight instances of attorney misconduct. First, Sprint claims
plaintiffs’ counsel committed misconduct because the court sustained 50 of its objections
to plaintiffs’ counsel’s questions. According to Sprint, the court sustained the “vast
majority” of its objections because the questions “were irrelevant.” We have reviewed
the objections cited by Sprint. The “vast majority” of the objections were not, as Sprint
contends, sustained on relevance grounds. We decline to conclude 50 sustained
objections over 18 trial days constitutes attorney misconduct, particularly where Sprint
cites no authority supporting such a conclusion. “This was a lengthy trial, aggressively
litigated on both sides, with many witnesses and with frequent objections being made on
both sides.” (Dominguez, supra, 212 Cal.App.3d at p. 213.) While a “witness may not
be examined on matters that are irrelevant to the issues in the case[,]” (People v. Mayfield
(1997) 14 Cal.4th 668, 775 (Mayfield))11 plaintiffs’ counsel did not “overstep[ ] the
bounds of propriety and fairness which should characterize his conduct as an officer of
the court[.]” (See Bandoni v. Walston (1947) 79 Cal.App.2d 178, 190, internal citations
omitted; Dominguez, supra, 212 Cal.App.3d at p. 212 [counsel “may have been

11
      Abrogated by People v. Scott (June 8, 2015, S064858) ___ P.3d ___ [2015 WL
3541280.]
                                             33
aggressive and persistent, approaching close to the line between proper and improper
conduct [but] he did not overstep that line”].)
       Nor has Sprint shown prejudice. Our high court has observed that “generally a
party is not prejudiced by a question to which an objection has been sustained.”
(Mayfield, supra, 14 Cal.4th at p. 755; Hamm v. San Joaquin & Kings River Canal Co.
(1941) 44 Cal.App.2d 47, 56-57 [no prejudice where defense attorneys elicited evidence
defendants did not have liability insurance]; cf. McDonald v. Price (1947) 80 Cal.App.2d
150, 151-152 [in wrongful death case, plaintiff prejudiced by irrelevant and inflammatory
questions asked by defense counsel regarding plaintiff’s purported criminal history].)
That the jury declined to award Sprint reliance damages does not constitute prejudice.
(Dominguez, supra, 212 Cal.App.3d at p. 214.)
       Second, Sprint claims plaintiffs’ counsel portrayed the lawsuit as “‘good’ versus
‘evil’” in questioning prospective jurors during voir dire when the case actually
concerned Sprint’s damages and entitlement to an offset. Sprint complains counsel’s
appeal to the jury’s passion and prejudice was exacerbated by the court’s refusal to
inform the jury Sprint was not seeking affirmative relief. We reject this claim because
Sprint’s counsel did not object when plaintiffs’ counsel characterized the case as
representing “‘good’ versus ‘evil.’” (Evid. Code, § 353.) Sprint’s claim fails for the
additional reason Sprint has not demonstrated prejudice. While it is improper for counsel
to appeal to the jury’s “social or economic prejudices” (Collins v. Union Pacific Railroad
Co. (2012) 207 Cal.App.4th 867, 883), Sprint has not demonstrated how plaintiffs’
counsel’s brief references to “‘good’ versus ‘evil’” during voir dire questioning of
prospective jurors who were not seated on the jury somehow affected a verdict rendered
by other seated jurors 23 days later, a verdict awarding Sprint over $18 million dollars in
damages. (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 159 (Garcia)
[attorney’s appeal to jury’s passions not inherently prejudicial].) The court instructed the
jury not to let “bias, sympathy, prejudice or public opinion influence your verdict.”
“Absent some contrary indication in the record, we presume the jury follows its
instructions [citations] ‘and that its verdict reflects the legal limitations those instructions

                                               34
imposed’ [Citation.]” (Cassim, supra, 33 Cal.4th at pp. 803-804 [attorney misconduct
was not prejudicial].)
       Third, Sprint argues plaintiffs’ counsel committed misconduct by suggesting
Sprint was trying to collect money from class members, when its “damages case [was]
defensive in nature.” During voir dire, plaintiffs’ counsel asked a prospective juror
whether “people that breached those contracts should have to pay money to Sprint[.]”
During closing argument, plaintiffs’ counsel argued Sprint’s counsel “talked about 2
million broken promises, and he said that he didn’t want anyone to profit from those and
people shouldn’t be rewarded for breaking their promises. But [it is] Sprint, that violated
the law. And I would submit to you that it’s Sprint that should not benefit from its own
violations of the law.” Counsel also asked the jury, “when you have a party that’s
violated the law and they come in and want an award of a billion dollars in damages,
where do you set the burden of proof[,]” which prompted counsel for Sprint to object that
counsel’s argument “violates the Court’s rule.”
       Sprint’s pursuit of damages may have been “defensive in nature,” but it was
seeking damages from the class to offset the $73,775,974 the first jury determined Sprint
collected in unlawful ETF’s. Plaintiffs’ counsel’s characterization of Sprint’s “violations
of the law” complied with the court’s order allowing the parties to “inform the jury that in
the first trial the court found that Sprint’s ETFs were unlawful[.]” Assuming for the sake
of argument these references constituted attorney misconduct, Sprint has not
demonstrated prejudice. (Garcia, supra, 204 Cal.App.4th at p. 159.) Class counsel’s
“offending references” were a “miniscule part” of a lengthy trial and a “‘mere fraction of
counsel’s overall closing argument’” — approximately 14 lines of a 93-page closing
argument. (Id. at p. 161, quoting Cassim, supra, 33 Cal.4th at pp. 802-803.) The jury
was not likely swayed by these fleeting “offending references” (Garcia, supra, 204
Cal.App.4th at p. 159) because Sprint’s counsel repeatedly reminded the jury in his
closing argument that Sprint was seeking an “offset” and Sprint’s claims were “defensive
in nature.” Additionally, the court instructed the jury that counsel’s statements and
arguments were not evidence and to make a decision based on the evidence and the law.

                                            35
Nothing in the record “convinces us against adhering to the presumption that the jury
followed the instruction.” (Garcia, supra, 204 Cal.App.4th at p. 162; Pope, supra, 229
Cal.App.4th at p. 1250 [no prejudice from attorney misconduct].)
       Fourth, Sprint contends plaintiffs’ counsel committed misconduct by using
individualized testimony from the class representatives and by attacking Sprint’s decision
not to present individualized evidence of damages. We disagree. There was no
misconduct, and no prejudice to Sprint. The court allowed plaintiffs to “present evidence
relating to the circumstances of individual members of the class that is relevant to the
issue of Sprint’s aggregate damages against the class” and “evidence relating to the
circumstances of individual members of the class suggesting that Sprint’s evidence is
inaccurate or inconsistent.” And Sprint concedes plaintiffs “never actually argued to the
jury that the two class members’ . . . individualized evidence directly countered Sprint’s
aggregate evidence.”
       Fifth, Sprint claims plaintiffs’ counsel committed misconduct by “repeatedly
misrepresent[ing]” Sprint received discounts from handset manufacturers when there was
no such evidence before the jury. We have reviewed the two instances cited by Sprint —
which hardly rise to the level of repeated —and conclude Sprint’s argument has no merit.
Findlay admitted Sprint had an agreement with at least one handset manufacturer, and Dr.
Taylor agreed that in some instances, Sprint’s merchandise invoices did not reflect the
amount Sprint paid for the handsets. It was not improper for plaintiff’s counsel to
suggest to the jury Sprint received discounts from handset manufacturers.
       Sprint’s sixth and seventh claims of attorney misconduct are premised on its claim
that plaintiffs’ counsel misrepresented various aspects of the components of reliance
damages. For reasons we have explained, plaintiffs’ counsel did not misstate the law
regarding reliance damages, and did not misstate the evidence regarding when Sprint
incurred the costs it sought as reliance damages. Finally, we reject Sprint’s claim that
plaintiffs’ counsel committed misconduct during closing argument by urging the jury to
reject Sprint’s evidence because there was not “a single piece of paper” showing Sprint’s
damages. There was no misconduct here because plaintiffs’ counsel immediately

                                             36
corrected himself by saying, “I want to be completely fair to Mr. Baliban, because the
rules are that you can’t put an expert report into evidence.” In any event, there is no
indication Sprint rejected Baliban’s testimony or declined to award reliance damages
because Baliban’s expert report was not in evidence. (Garcia, supra, 229 Cal.App.4th at
p. 162; Dominguez, supra, 212 Cal.App.3d at p. 215.)
                                      DISPOSITION
       The order: (1) denying Sprint’s motion for judgment notwithstanding the verdict;
(2) granting Sprint’s motion for new trial on Sprint’s lost profits damages; and (3)
denying Sprint’s motion for new trial on reliance damages is affirmed. Each party is to
bear its costs on appeal. (Cal. Rules of Court, rule 8.278.)




                                             37
                                 _________________________
                                 Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Bruiniers, J.




                            38
