Filed 11/6/13 GoMirror v. Brockstar CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


GOMIRROR, LLC,

     Plaintiff and Respondent,                                         G047862

         v.                                                            (Super. Ct. No. 30-2011-00457099)

BROCKSTAR, LTD. et al.,                                                OPINION

     Defendants and Appellants.


                   Appeal from a judgment of the Superior Court of Orange County, David R.
Chaffee, Judge. Affirmed.
                   Raymond N. Haynes for Defendants and Appellants.
                   Marianne Milligan for Plaintiff and Respondent.
                                          *                  *                  *
              Brockstar Ltd., Brockstar Groups of Companies, Brockstar Financial
Services, Inc., and Brian N. Willis (collectively, Brockstar) appeal from a judgment on
breach of contract and fraud causes of action in favor of GoMirror, LLC, for falsely
inducing GoMirror to provide successively greater sums of earnest money and then
reneging on its promise to obtain financing for GoMirror to bring its novel women’s

cosmetics accessory to market. Brockstar contends GoMirror, a Texas corporation,
lacked capacity to sue because it failed to register as a company conducting business in
California. Brockstar also asserts “[p]laintiff’s claim for lost profits was too speculative

to receive such an award as a matter of law” and that “[t]he amount of lost profits
awarded was not supported by substantial evidence” because “[t]here is simply no
evidentiary support for how the court made [its] determination.” As we explain,

Brockstar’s challenges are without merit, and we therefore we affirm the judgment.
                                              I
                   FACTUAL AND PROCEDURAL BACKGROUND
              Consistent with the standard of review, we set out the facts in the light most
favorable to the judgment. (See, e.g., Delgado v. Trax Bar & Grill (2005) 36 Cal.4th
224, 229.) Christian von Glasow, owner and chief executive of GoMirror and a former

marketing specialist for Proctor & Gamble and other companies developing women’s
cosmetic products or targeting female consumers, conceived in 1998 the idea for a
cosmetic compact mirror with a flexible, portable mount. Believing it was ideal for use

“on the go,” including in automobiles, he patented the product in 2001, but put its further
development on hold through divorce proceedings in 2002 and 2003. He eventually
returned to his GoMirror project in 2008 when he met with consultants in the field of

direct response television (DRTV) about marketing and selling the GoMirror compact



                                              2
through a television sales campaign. The DRTV campaign would cost $1.4 million, not
including expenses for an initial run of at least 3500 units of the GoMirror product. Von
Glasow obtained $150,000 in funding for the necessary tools and molds to produce the
first 5,000 GoMirror units, which he stored in San Bernardino County, distributing
approximately 500 units in product placements and online sales overseas.

             Through a mutual friend, von Glasow turned to Willis and his Brockstar
companies to finance the DRTV campaign. Von Glasow met with Willis in California in
September 2009, demonstrated the product and discussed his business plan, which gained

Willis as an enthusiastic supporter. Willis expressed his confidence the campaign would
be very profitable. In subsequent discussions, Willis agreed Brockstar would fund a
$1.4 million loan for the DRTV campaign, contingent on GoMirror paying Brockstar

$20,000 in “bank fees” and other costs.
             Von Glasow turned to a friend in England, John Milman, for the $20,000,
which Willis accepted, cautioning that the financing would be arranged in a
“piggyback[]” fashion on other Brockstar transactions, implying there might be some
delay. Milman traveled to California to deposit the $20,000 and meet with Willis, who
confirmed “he thought the business plan was good.” Six weeks later, Willis demanded an

additional $40,000 to obtain the financing, which Milman again provided, and
periodically thereafter Willis required additional funds of $25,000 and $65,000, bringing
the total Milman gave Willis on GoMirror’s behalf to $150,000. In each “Commitment

Letter” memorializing each of Milman’s deposits for GoMirror, Brockstar acknowledged:
“All deposits are corporately guaranteed and to be considered fully refundable in case of
nonperformance by the lender, for any reason, in delivery of the loan.” Each

commitment letter also contained a confidentiality provision preventing GoMirror from



                                            3
seeking alternate funding, effectively giving Brockstar exclusive funding rights under the
loan contract.
                 After the delays stretched into June 2010 with no funding near at hand,
von Glasow asked Willis to return the $150,000. Willis responded that because Milman
had deposited the funds, he would only refund them to Milman, but he similarly rebuffed

Milman in an e-mail, writing: “Dear John, my apologies for not responding to your last
communication. Although I greatly appreciate your concerns, your deal is by and
between GoMirror and [von Glasow], not between Brockstar or myself.” To eliminate

any possible confusion, Milman executed an assignment of the $150,000 to GoMirror,
which he provided to Willis to no avail, who refused to return the funds.
                 In March 2011, GoMirror filed this lawsuit and, after a three-day court trial

that included ample evidence of GoMirror’s lost profits based on Brockstar’s failure to
fund GoMirror’s planned launch, the trial court ruled in favor of GoMirror on its fraud
and breach of contract causes of action. The court summarized Brockstar’s conduct in
keeping GoMirror’s $150,000 and failing to provide the promised funding as “a classic
case of a con game.” The trial court awarded GoMirror over $800,000 in damages,
which included the $150,000 deposit plus almost $40,000 in interest on that sum,

$600,000 in lost profits, and around $50,000 in other damages. Brockstar now appeals.
                                                II
                                         DISCUSSION

A.     Capacity to Sue
                 Brockstar contends the trial court erred by rejecting its request to dismiss
GoMirror’s lawsuit because GoMirror failed to register with the Secretary of State to

conduct business in California. (Corp. Code, § 2203, subd. (c) [foreign corporation that



                                                4
“transacts intrastate business without” the requisite registration “shall not maintain any
action or proceeding upon any intrastate business so transacted”]; see, e.g., The Capital
Gold Group, Inc. v. Nortier (2009) 176 Cal.App.4th 1119, 1132.) The litigation bar
arises when the foreign corporation engages in “repeated and successive transactions of
its business in this state” without registering, but the bar does not apply to “interstate or

foreign commerce” consummated outside California. (Corp. Code, § 191, subd. (a);
Thorner v. Selective Cam Transmission Co. (1960) 180 Cal.App.2d 89.)
                The Legislature has identified some activities that do not amount to

transacting intrastate business and therefore do not trigger the litigation ban, including for
example: (1) the mere act of filing suit or defending any action or proceeding;
(2) internal affairs including board or shareholder meetings; (3) maintaining bank

accounts; (4) maintaining offices for securities transactions; (5) conducting sales through
independent contractors; (6) soliciting or procuring orders; (7) creating evidence of debt
or mortgages, liens or security interests on real or personal property; and (8) conducting
isolated transactions. (Corp. Code, § 191, subd. (c).)
                A defendant seeking dismissal bears the burden to establish the plaintiff’s
lack of capacity to sue based on a failure to register, corporate suspension, or other

defects. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604 (Color-Vue.) We
review the trial court’s ruling under the deferential substantial evidence standard. (See,
e.g., Hurst v. Buczek Enterprises, LLC (N.D. Cal. 2012) 870 F.Supp.2d 810, 819 (Hurst)

[whether corporation transacts intrastate business is “committed to the ‘peculiar facts’ of
each case”].)
                Defendant’s challenge fails for several reasons. First, unlike lack of

standing, a plaintiff’s incapacity to sue is not an incurably fatal defect that may be raised



                                               5
at any time. (Color-Vue, supra, 44 Cal.App.4th at pp. 1603-1604; see United Medical
Management Ltd. v. Gatto (1996) 49 Cal.App.4th 1732, 1740 [defendant successfully
asserting incapacity only gains stay “to permit the foreign corporation to comply” and, if
it does not, dismissal is “without prejudice”].) As an affirmative defense, incapacity
requires a plea in abatement that “‘must be raised at the earliest opportunity or it is

waived. . . . The proper time to raise a plea in abatement is in the original answer or by
demurrer at the time of the answer.” (Color-Vue, at p. 1604, original ellipsis.) Once
forfeited, the defense does not revive except, for example, “[w]here . . . the [corporate]

suspension occurred after the time to demur or answer had passed” (id. at p. 1604, fn. 5),
or in “unusual circumstance[s]” such as a suspended corporation “announc[ing] that it
does not intend to pay its delinquent taxes . . . .” (Id. at p. 1605.)

              Here, Brockstar did not challenge GoMirror’s capacity to sue until far too
late, long after it filed its answer without any abatement plea. Brockstar pointed to no
unusual circumstances warranting forfeiture relief: Willis of course knew of his
California interactions with GoMirror, a Texas corporation, but failed to file a demurrer
or answer pleading abatement for lack of registration or any other reason. Brockstar did
not raise the capacity issue until the first day of trial, well after ample opportunity in

discovery to investigate whether GoMirror engaged in intrastate commerce. Forfeiture
therefore precludes Brockstar’s belated capacity challenge.
              Second, Brockstar also forfeits the issue on appeal by failing to provide or

explain any factual basis for his incapacity claim. Brockstar simply asserts GoMirror
“was definitely transacting business in California” (italics added), but does not say how.
Brockstar complains that the trial court required it “to provide evidence that GoMirror

was doing business in California” to meet Brockstar’s burden as the party seeking



                                               6
dismissal, “and then, when such evidence was provided, simply ignored it, and allowed
the case to go forward.” (Italics added.) But Brockstar makes no effort to identify the
evidence it claimed would satisfy its burden. Brockstar cites, without summary or
explanation, a range of pages in the record, but it is not our responsibility to develop from
a bare record reference a reasoned argument for reversal. To the contrary, we presume

the judgment was correct (Denham v. Superior Court (1970) 2 Cal.3d 557, 566
(Denham) ), and it is always the appellant’s burden to demonstrate error (Boyle v.
CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650 (Boyle)) with specific

arguments under specific headings marshalling specific facts (Cal. Rules of Court, rule
8.204(a)(1)(B) & (C)).
              In any event, even disregarding Brockstar’s forfeiture in the trial court and

on appeal, its challenge also fails on the merits. The closest Brockstar comes on appeal
to identifying GoMirror’s alleged pattern of intrastate business activity necessitating
registration is to observe that “this whole transaction . . . occurred in California.” But a
single instance of transacting business is not enough. (Corp. Code, §§ 191, subd. (a),
192, subd. (b)(8); see, e.g., Equitable T. Co. v. Western L. & P. Co. (1918) 38 Cal.App.
535 [acting as trustee in one instance is not “carrying on business” in the state].)

Moreover, one continuing attempt to secure funding from Brockstar did not demonstrate
GoMirror’s everyday “ordinary business” consisted of transacting loans, requiring
registration to engage in that activity. (W.W. Kimball Co. v. Read (1919) 43 Cal.App.

342, 345 [taking assignment of a single piano sales contract did not require Illinois piano
company to register as intrastate financier]; see also West Publishing Co. v. Superior
Court (1942) 20 Cal.2d 720, 731 [isolated business transaction and mere solicitation of

business, including advertising and demonstrating products, does not amount to “doing



                                              7
business”].) Accordingly, GoMirror’s lone agreement with Brockstar, which Brockstar
failed to fulfill, did not require GoMirror to register in California or face dismissal of its
lawsuit, thereby inoculating Brockstar for its breach of contract. For all the foregoing
reasons, the trial court did not err in rejecting Brockstar’s request for dismissal.

B.     Lost Profits
              Brockstar challenges the lost profit damages the trial court assessed after
concluding Brockstar reneged on its promise to finance GoMirror’s product launch.
Brockstar identifies in the subheadings of its opening brief two specific challenges. First,
Brockstar claims that lost profits for a new business are too speculative as a matter of law
and therefore could not be awarded for GoMirror’s fledgling business. As Brockstar
phrases it: “Plaintiff’s claim for lost profits was too speculative to receive such an award

as a matter of law.” Second, Brockstar contends no evidence supported the manner in
which the trial court calculated $600,000 as the appropriate sum compensating GoMirror
for lost profits. Specifically, Brockstar asserts “[t]he amount of lost profits awarded was
not supported by substantial evidence” because “[t]here is simply no evidentiary support
for how the court made [its] determination.” These challenges fail.
              First, to the extent Brockstar suggests new businesses may never be

awarded lost profits, Brockstar is wrong on the law. Brockstar asserts that because
“GoMirror did not prove that it ever tried to begin selling the product for which it sought
financing from Brockstar” (italics added), California law therefore precluded GoMirror




                                               8
as a “new business” from recovering lost profits.1 Brockstar overstates its case and
misconstrues the authority on which it relies.

              Specifically, Brockstar miscites a passage in Resort Video for the sweeping
proposition that “‘if a business is new, it is improper to award damages for loss of profits
because the absence of income and expense experience renders anticipated profits too
speculative to meet the legal standard of reasonable certainty necessary to support an
award of such damage. [Citations.]’” (Resort Video, supra, 35 Cal.App.4th at p. 1698.)
Brockstar neglects to mention, however, that in the same paragraph Resort Video
acknowledges exceptions exist in which “[u]nestablished businesses” may recover lost
profits. (Ibid.) Indeed, contrary to Brockstar’s argument that “for years, case law has
held that damages for ‘lost profit’ are too speculative” for new businesses to recover, the

law has recognized for decades that a new business robbed of success may recover lost
profit damages and that the prospects of success are a fact question. (S. Jon Kreedman &
Co. v. Meyers Bros. Parking-Western Corp. (1976) 58 Cal.App.3d 173, 185 (S. Jon
Kreedman) [upholding lost profit award for unfinished commercial garage, noting
appellants’ “dissatisfaction” with the expert’s projected profit calculations “were
obviously fact questions resolved against [them] by the trial court”].) Brockstar’s
de novo challenge based on its misapprehension and misquotation of law therefore fails.




       1          At oral argument, Brockstar denied it claimed a new business could never
recover lost profits, but its brief painted a different picture, asserting GoMirror fell into
“the classic example of a new business seeking damages for its lost profit when, for
years, case law has held that damages for ‘lost profit’ are too speculative for recovery
[citations].” Brockstar then quoted an excerpt from a case (Resort Video, Ltd. v. Laser
Video, Inc. (1995) 35 Cal.App.4th 1679, 1698 (Resort Video)), purporting to suggest a
categorical rule that “‘if a business is new, it is improper to award damages for loss of
profits . . . .’”

                                               9
              Similarly, Brockstar’s jaundiced view of the evidence affords no basis to
overturn the lost profits award. Brockstar cites and discusses only facts supporting its
position, without citing or disputing any of the facts supporting the trial court’s award.
But “as with any challenge to the sufficiency of the evidence, it is the appellant’s burden
to set forth not just the facts in its favor, but all material evidence on the point. ‘“Unless

this is done the [claimed] error is deemed to be waived.”’ [Citation.]” (Stewart v. Union
Carbide Corp. (2010) 190 Cal.App.4th 23, 34.)
              Even overlooking Brockstar’s waiver, substantial evidence supports the

trial court’s decision to award lost profits. The reviewing court must “view the evidence
in the light most favorable to” the prevailing party. (Kids' Universe v. In2Labs (2002)
95 Cal.App.4th 870, 886.) Brockstar asserts the GoMirror product “offered little or no

added ‘benefit’ to the consumer that other cosmetic mirrors, much cheaper in price,
already offered,” but substantial evidence demonstrated GoMirror’s market viability.
Von Glasow earned a patent for his unique design, and independent market research
showed consumer demand as high as 87 percent in the target demographic. “‘[I]f the
business is a new one or if it is a speculative one . . . , damages may be established with
reasonable certainty with the aid of expert testimony, economic and financial data,

market surveys and analyses, business records of similar enterprises, and the like.’”
(Ibid.) With ample experience evaluating new business opportunities and their pitfalls,
GoMirror’s accounting expert explained in testimony backed by numerous exhibits that

the company’s business plan, contingency plans, product pricing, market analysis,
distribution strategy, and cost estimates were reasonable and supported a “very
conservative” three-year profit total of $4 million.




                                              10
              Brockstar emphasizes von Glasow “had not sold those few products” he
manufactured in an initial production of 5,000 units, but where a defendant “made it
impossible” to realize sales, “it cannot complain” if the product’s success and
profitability “are of necessity estimated.” (Natural Soda Prod. Co. v. City of L.A. (1943)
23 Cal.2d 193, 200 (Natural Soda).) Moreover, Brockstar overlooks that the initial run

was made for product placement and as a DRTV “proof of concept” requirement to
demonstrate manufacturing capability. Indeed, the units were not created for piecemeal
sale, but rather for mass distribution in the DRTV campaign Brockstar foiled with its

funding breach.
              Brockstar also suggests von Glasow “had never manufactured any products,
[nor] marketed cosmetics or cosmetic accessories,” but the evidence showed otherwise.

Von Glasow’s self-financed initial production run demonstrated he could manufacture the
GoMirror product, and he also had experience overseeing manufacturing of promotional
products in his marketing work for major companies selling cosmetics and “a lot of
female products,” including Proctor & Gamble and Johnson & Johnson. As he explained
in his testimony, after earning his master’s degree and Ph.D. in business administration,
his responsibilities for these companies included “creating products, testing products in

terms of their viability or nonviability, also manufacture of products, also sales of
products via direct marketing, direct selling [and] retail selling.” Additionally,
GoMirror’s expert testified he conducted high-level executive interviews in the cosmetics

industry to confirm the price point and market viability of the GoMirror product. In
view of the foregoing and the standard of review, substantial evidence supports the trial
court’s decision to include lost profits in the judgment. (See S. Jon Kreedman,




                                             11
58 Cal.App.3d at p. 185 [“The trial court could have believed [appellant’s] version of
profitability; it chose not to do so”].)
               Brockstar’s challenge to the sufficiency of the evidence supporting the
amount of the trial court’s lost profits award also fails. Brockstar repeats its mistake of
failing to view the record in the light most favorable to the verdict. More fundamentally,

Brockstar ignores the cardinal rule that litigants must “bring ambiguities and omissions in
the statement of decision’s factual findings to the trial court’s attention — or suffer the
consequences.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59

(Fladeboe).) Specifically, “the reviewing court will infer the trial court made every
implied factual finding necessary to uphold its decision, even on issues not addressed in
the statement of decision.” (Id. at p. 48.) “The appellate court then reviews the implied

factual findings under the substantial evidence standard.” (Id. at p. 60.)
               Brockstar complains that in reducing the $4 million in lost profits
established by the testimony of GoMirror’s expert to $600,000, “there is absolutely no
evidence in the record to support the trial court’s calculation.” The trial court explained
its lost profits award rather opaquely in a sentence fragment and two sentences in the
statement of decision, as follows: “Twenty-six (26) months of delayed income from

Plaintiff’s income stream resulting in damages of $600,000.00. The [c]ourt determined
this amount from the loss of the income stream that GoMirror would [have] derived from
the sale of GoMirror’s units during time [sic] from the date when the loans were

promised and not delivered to 26 months thereafter. Based upon the $4,000,000.00
estimate of GoMirror’s expert, Mr. Querry, the court rules that GoMirror was damage[d]
by ten percent over the extended period of time, an amount of $600,000.”




                                             12
               Brockstar complains on appeal that “[t]here is simply no evidentiary
support for how the court made [its] determination” of lost profit damages in the
statement of decision. (Italics added.) But because Brockstar failed to object to or seek
clarification of the statement of decision, any ambiguities or omissions in the statement of
decision provide no basis for reversal. (Fladeboe, supra, 150 Cal.App.4th at p. 59.)

Simply put, an appellant may not on appeal complain the trial court failed to detail in its
statement of decision the factual basis for an award when the appellant made no objection
below. (See, e.g., Sammis v. Stafford (1996) 48 Cal.App.4th 1935, 1942 [“[The

appellant] did not raise any objections to the statement of decision. We therefore are
required to presume the trial court made all findings necessary to support the
judgment”].)

               Implied findings support the trial court’s lost profits determination. Based
on the overwhelming popularity of the product in market surveys, the trial court
apparently viewed most of the sales GoMirror estimated it lost in a three-year period as
only temporarily lost. In other words, the women who would have bought the product
during the expert’s initial three-year estimate would do so later given the chance, and
therefore those sales, at $40 each, were only delayed. Consequently, the trial court

decided it would award only a percentage of lost sales to account for the interim time-
value of the delayed profits. As the trial court phrased it, GoMirror’s actual loss
consisted of a lost “income stream derived from the loss of income, i.e., the four million

dollars that Mr. Querry suggested was the lost income” (italics added), and therefore
applying a percentage to that figure was appropriate. The trial court mentioned
10 percent as a potential rate of return on the lost income, which mirrors the statutory rate




                                             13
of prejudgment interest dating to the contract breach (Civ. Code, § 3289, subd. (b)), and
Brockstar did not and does not challenge the statutory rate.
              Brockstar complains it remains unclear how the trial court settled upon
$600,000 in lost profit damages as the “income stream derived from” a loss of
$4 million in income. Brockstar asserts the ambiguity is fatal because $4 million at a flat

10 percent rate of return yields only $400,000. But as Brockstar acknowledges, the trial
court did not specify the manner in which it calculated the $600,000, including variables
like whether it accrued at a flat or compound rate of interest. Brockstar may not rely on

an ambiguity in the statement of decision to challenge the judgment when Brockstar did
not object or seek clarification of the statement of decision below. As we explained in
Fladeboe, if a party fails to bring omissions or ambiguities to the trial court’s attention,

“then ‘that party waives the right to claim on appeal that the statement was deficient in
these regards,’ and the appellate court will infer the trial court made implied factual
findings to support the judgment.” (Fladeboe, supra, 150 Cal.App.4th at p. 59.)
              We note a plaintiff is “not required to establish the amount of its damages
with absolute precision” (S. C. Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th
529, 537-538), and when a defendant “ma[kes] it impossible for plaintiff to realize any

profits, it cannot complain if the probable profits are of necessity estimated.” (Natural
Soda, supra, 23 Cal.2d at 200.) Put another way: “Where the promisor, by his willful
breach of contract, has given rise to the difficulty of proving the amount of loss of profits,

it is proper to require of the promise only that he show the amount of damages with
‘reasonable certainty’ and to resolve uncertainties against the promisor.” (Steelduct Co.
v. Henger Seltzer Co. (1945) 26 Cal.2d 634, 651.) Consequently, where substantial

evidence supported the expert’s calculation of $4 million in lost profits, substantial



                                              14
evidence also supported the $600,000 the trial court awarded. As another court explained
long ago, “Since the evidence with respect to loss of profits would have supported a
larger award than was actually given, defendants cannot, on review, complain of the
award or a supposed lack of evidence to sustain it.” (Tomlinson v. Wander Seed & Bulb
Co. (1960) 177 Cal.App.2d 462, 476.)

              Moreover, Brockstar overlooks that GoMirror’s lost income would have
accrued on a rolling basis and that the trial court’s calculation of an “income stream
derived from the lost income” at a 10 percent rate of return would necessarily have a

compounding effect as the income accrued. Thus, the implied findings supporting the
judgment include the enhanced effect of compound interest. Additionally, we note the
trial court reasonably could infer that not all the women unable to buy the product

because of Brockstar’s breach would do so later, whether because they died, could no
longer afford it, or other circumstances. Accordingly, those sales at full net profit per
unit (instead of one-tenth that amount in a derived income stream) were truly lost forever
and justified an award significantly higher than $400,000 at the flat 10 percent rate,
which also did not include compound interest. Brockstar’s challenge is without merit.

 C.    Sanctions
              GoMirror argues in its respondent’s brief and in a motion and revised
motion for sanctions that Brockstar’s misstatements of the record, misapprehensions of
law, and “‘unsubstantiated potshot[s]’” against respondent in characterizing the record or

in purportedly deducing “facts” from the record call for the conclusion Brockstar waived
its challenges to the judgment and for $78,400 in attorney fee sanctions.
              As discussed, we agree that some of Brockstar’s appellate challenges are

forfeited for failure to timely raise them or properly present them. Sanctions are



                                             15
tempting, for like other courts, we tire of the wearisome slog through briefs that
misconceive appeal as a retrial opportunity to better spin favorable facts and discount
others as unsubstantiated. But “[w]ith rhythmic regularity it is necessary for us to say
that where the findings are attacked for insufficiency of the evidence, our power begins
and ends with a determination as to whether there is . . . substantial evidence to support

them; that we have no power to judge of the effect or value of the evidence, to weigh the
evidence, to consider the credibility of the witnesses, or to resolve conflicts in the
evidence or in the reasonable inferences that may be drawn therefrom. No one seems to

listen.” (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.)
              Accordingly, we share GoMirror’s exasperation. But Brockstar’s missteps
on the law and facts do not appear to include intentional misstatements of the record or

the law, nor malicious personal attacks on respondent. They seem instead to stem from
Brockstar’s poor grasp of appellate advocacy in which it reargued the case in the light
most favorable to its position. Shading the record in this manner, with correspondingly
loose record and case law citations, contravenes the standard of review, destroys the
appellant’s credibility, and dims or extinguishes any chance of success on appeal.
Forfeiture is itself a dire, entirely apt consequence. Tainted by its bad facts, Brockstar’s

legal analysis also necessarily goes astray. But we conclude these faults do not rise to the
level of sanctionable conduct here. It always remains the appellant’s prerogative to
challenge the sufficiency of the evidence on appeal, and the adversarial process by nature

engenders widely divergent views of both the record and the law applicable to those
facts, so the standard for sanctions must remain very high. Although the issue is close,
that standard is not met here. Consequently, we deny the monetary sanctions request.




                                              16
                                          III
                                   DISPOSITION
            The judgment is affirmed. Respondent is entitled to its costs on appeal.




                                                ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




                                          17
