Filed 3/11/15 Lutfi v. Spears CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

SAM LUTFI,                                                              B246253

                Plaintiff and Appellant,                                (Los Angeles County
                                                                        Super. Ct. No. BC406904)
         v.

LYNNE SPEARS et al.,

                Defendants and Respondents;

ANDREW M. WALLET, as Coconservator,
etc.,

                Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Suzanne
G. Bruguera, Judge. Affirmed in part, reversed in part and remanded.
         Law Offices of Gregory R. Ellis, Gregory R. Ellis and Natasha A. Bhushan for
Plaintiff and Appellant.
         Stephen F. Rohde for Defendant and Respondent Lynne Spears.
         Gladstone Michel Weisberg Willner & Sloane, Leon J. Gladstone and Michael J.
Aiken for Defendant and Respondent James Parnell Spears.
         Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Linceberg & Rhow, Joel E. Boxer
and Bonita D. Moore for Respondents James P. Spears and Andrew M. Wallet as
Conservators of the Estate of Britney Jean Spears.
       Sam Lutfi (Sam) appeals from a final judgment of the superior court in favor of
respondents Lynne Spears (Lynne), James Parnell Spears (James), and Britney Spears
(Britney) (appearing through her conservators) on his causes of action for libel and
defamation (against Lynne); battery (against James); intentional infliction of emotional
distress (against Lynne and James); breach of contract and quantum meruit (against
Britney).1
       After Sam concluded his case-in-chief, all three respondents moved for nonsuit.
The court granted the motions in their entirety. Sam contends this was reversible error.
Sam also challenges an interim ruling of summary adjudication on his cause of action for
intentional infliction of emotional distress against James, and as to emotional distress
damages on the battery claim against James.2
       We affirm in part and reverse in part.
                              FACTUAL BACKGROUND
The relationship between Sam and Britney
       Sam met Britney at a nightclub in 2007. At the time, Sam was a “consultant” at
his mother’s gas station business. When he met Britney, her life was in turmoil. She was
involved in a divorce and a child custody battle, and was estranged from her parents. In
addition, she was struggling with drug abuse. She had recently fired her agent, manager,
bodyguards, and publicist, and she was not working. Sam advised her about the
importance of getting clean. Over the next few weeks, Britney called Sam numerous
times and sent him hundreds of text messages.
       In June 2007, Sam accompanied Britney to a meeting with record executives. The
executives asked Sam to leave, but Britney said, “Sam is my manager. He stays.” Later
that day she told Sam she really did want him to be her manager. Sam said he would

1      Because the three respondents share the same last name, we adopt the practice of
the parties in their briefs on appeal and use the first names of all parties to this appeal.
No disrespect is intended.

2      Sam agreed to dismiss his cause of action for intentional infliction of emotional
distress against Lynne.

                                                2
think it over. Britney told Sam that if he accepted, he would get 15 percent of her
income, and that she earned $800,000 a month even when she wasn’t working. Later that
day, Sam accepted her offer with two conditions: (1) he would help assemble a first-rate
management team to compensate for his own lack of experience; and (2) Britney would
stop abusing drugs. He also told her he wanted to bring drug-sniffing dogs to the house
to clear it of any drugs. Britney accepted his conditions. On July 2, 2007, Sam
downloaded an exemplar artist management contract and gave Britney a copy. Sam
subsequently set up meetings with an entertainment lawyer and agents.
       During this time, Britney continued to struggle with a drug problem. Sam claimed
to have advised her on this and “almost every important decision in her life.” In early or
mid-September 2007, Sam walked away from the relationship because Britney was
allegedly using drugs. Beginning in September 2007, Britney was subject to a court
order requiring random drug testing, and Sam was at the house from time to time when
drug testing was done. On October 1, 2007, Britney lost legal custody of her infant sons.
She spent a night in a parking lot, then called Sam and told him he was one of the few
people she trusted. That night, he moved into her home. With the exception of a brief
period in December 2007, Sam lived in Britney’s home until February 1, 2008.
       In October and December 2007, Sam assisted Britney with such things as
arranging parties, purchasing personal items, and interfacing with various people in her
life. Sam testified that in October, he and Britney amended the oral agreement to specify
a four-year duration and termination without cause in 90 days or with cause in 30 days.
Sam claimed that he helped Britney get a music video made and worked with producers
on Britney’s album “Blackout.”
       Sam also helped Britney deal with paparazzi; 30 to 100 paparazzi were always
trailing Britney. They would run red lights to keep up with her, and follow her into
stores, making it difficult for her to park or shop. Sam set rules for the paparazzi, which
included not entering private property, not following Britney into stores, not running red
lights, and saving Britney a parking space when they followed her to a location. If the
paparazzi followed his rules, he would text them Britney’s itinerary so they could get the


                                             3
photographs they wanted. By January 2008, Britney and Sam trusted the paparazzi and
treated them as free bodyguards.
       Over time, Sam ordered five or six cell phones for Britney, each with a different
number, to handle the recurring problem of Britney’s phone number being leaked to the
public. After a leak, she would switch phones. Sam kept the backup phones in his car.
       From mid-2007 through January 2008, Sam also established a close relationship
with Lynne. They were in touch by phone or text nearly every day. Sam brought up the
idea of starting a jewelry business with Lynne. Sam eventually arranged a reconciliation
between Britney and Lynne. Sometime in October 2007, he facilitated James dropping
off a letter for Britney.
       On January 3, 2008, Britney locked herself in a bathroom with one of her children.
Someone called the police, and she was removed from her home and taken to Cedars
Sinai Medical Center, where she was detained pursuant to Welfare & Institutions Code
section 5150 (section 5150 hold).3 This would be the first of two such section 5150 holds
to occur within the next 30-day period.
The relationship between Sam and Britney ends
       On January 28, 2008, Sam picked up Britney at her boyfriend Adnan Ghalib’s
house. Sam and Britney had a dispute, and when they were about 200 hundred yards
from Britney’s home, Britney got out of the car and ordered Sam to leave. Britney began
crying. Video images of the dispute were broadcast on the news and the internet.
       Lynne and James heard about the dispute and rushed to Britney’s home. James
got into a verbal altercation with Sam, accusing Sam of hurting Britney. After five or ten
minutes, security escorted James from the house. The next morning, James came to pick
up Lynne from the home. Sam testified that James “snuck” inside the home, accused
Sam of insulting Lynne, and punched Sam once in the solar plexus. Sam retreated and
locked himself in the game room for the next hour. Sam testified that the single punch



3        Welfare & Institutions Code section 5150 provides for a person who is a “danger
. . . to himself or herself” to be taken into custody involuntarily for up to 72 hours.

                                            4
hurt. It left no visible marks, and he felt like he was going to be fine. He did not
consider, or obtain, medical treatment.
       On January 31, 2008, Britney was taken into custody on a second section 5150
hold. The next day, James filed papers seeking appointment as Britney’s conservator.
James also applied for a temporary restraining order (TRO) preventing Sam from having
further contact with Britney. The application stated that Sam had moved into Britney’s
home and was controlling her life, home, and finances and that the TRO was necessary to
allow her to obtain medical treatment that she needed without Sam’s interference. The
application was supported by a declaration from Lynne.
Lynne’s declaration filed in support of the TRO
       Lynne’s declaration stated that, on January 28, 2008, she and James had attempted
an “intervention.” However, when he heard that James and Lynne were coming, Sam
gave a paparazzo one of Britney’s cars to get her out of the house. Lynne stated that she
understood from the conversation that Sam had disabled all of Britney’s other cars.
       Lynne further declared that during a fight between Britney and Sam that evening,
Sam had told Britney that she was an unfit mother, a piece of trash and a whore. Lynne
stated that the paparazzi reported to Sam like he was “a general.” Sam instructed Lynne
that she had to do as he told her. Lynne noticed that there was a car battery in the middle
of the kitchen table. Sam told her it was there so he could charge his cell phone. He had
disposed of all the cell phone chargers and had made the house phones unworkable.
       Sam told Lynne and her friend Jackie to tell Britney that her boyfriend, Adnan,
was gay. He informed Lynne and Jackie that he would grind up Britney’s pills, which
were on the counter and included Risperdol and Seroquel, and put them in her food. Sam
explained that was the reason that Britney had been so quiet for the past couple of days.
Sam said the doctor who was treating Britney was trying to get her into a sleep-induced
coma so that they could then give her drugs to heal her brain.
       Lynne’s declaration also included information she learned from Adnan. Adnan
stated that Sam would hide Britney’s cell phones and tell her that they were lost. In



                                             5
addition, Sam would hide Britney’s dog, London, and when Britney would start crying,
Sam would bring the dog out from the hiding place and act like her savior.
       Sam testified that Lynne’s allegations were untrue.
Conservatorship of Britney and TRO against Sam
       On February 1, 2008, Britney’s person and estate were placed under
conservatorship by the probate court. The conservatorship was put in place to protect
Britney’s health and welfare following her two highly-publicized involuntary
hospitalizations.
       On February 1, 2008, the probate court issued a TRO against Sam. On July 30,
2008, Sam signed a letter agreement that he would not contact Britney or take any action
on her behalf, in return for the conservators’ agreement to take the TRO hearing off
calendar. On January 30, 2009, another TRO was issued against Sam prohibiting him
from contacting Britney or taking any action on her behalf. It was made permanent later
that spring.
Lynne publishes her book
       In September 2008, Lynne’s memoir was published. The memoir was titled
Through the Storm, A Real Story of Fame and Family in a Tabloid World, published by
Thomas Nelson Publishing (the book). Three chapters of the book purportedly describe
Sam’s relationship with Britney, referring to him as a “predator,” a “fake,” a “Svengali,”
“the General,” and a “gatekeeper.” Lynne claimed Sam used the paparazzi as his
“henchmen.” She also made the following statements in the book:4




4       In his opening brief, Sam lists an additional allegedly defamatory statement in the
book: “[Sam] told me that if he weren’t in the house to give Britney her medicine, she
would kill herself. ‘If you try to get rid of me, she’ll be dead, and I’ll piss on her grave.’”
We decline to address this statement, as it was not part of Sam’s case in the trial court.
Lynne explains that late in the proceedings, Sam attempted to expand the number of
statements he claimed to be defamatory. Lynne filed a motion in limine to limit the case
to the statements specifically alleged in the FAC, which was granted. Sam has not
appealed this ruling.

                                              6
              “The general [Sam] told us that he threw away all of Britney’s phone
       chargers and disabled the house phones by cutting the wires. He also
       disabled several of Britney’s cars so she couldn’t leave unattended.”

              “He then told us to tell Britney that Adnan is gay.”

               “Sam told Jackie and me that he grinds up Britney’s pills, which
       were on the counter and included Risperdol and Seroquel, and puts them in
       her food. He said that was the reason she had been quiet for the last three
       days. She had been drugged and asleep. He said that her doctor was trying
       to get her into a sleep-induced coma so that they could then give her other
       drugs to treat her.”

               “Adnan told me that Sam hid Britney’s cell phones and told her that
       he lost them.”

              “Adnan told me that Sam would also hide Britney’s dog, London.
       She would look all over the house, crying, and then Sam would bring out
       the dog and act like some sort of savior.”

       Sam and Adnan testified that they did not make the statements, and Sam stated
that he did not commit the underlying acts.
       After Lynne’s book was released, Britney’s fans assaulted Sam in public, and
people he knew began to shun him. He received numerous death threats referring to the
book, some aimed at his family. Sam reported the threats to the police but was left
feeling depressed, anxious, and suicidal.
                              PROCEDURAL HISTORY
Initial pleadings
       Sam filed this lawsuit on February 3, 2009. On April 16, 2009, he filed a First
Amended Complaint (FAC). In the FAC, Sam stated causes of action for libel and
defamation against Lynne; battery against James; intentional infliction of emotional
distress against Lynne and James; breach of contract against Britney and quantum meruit
against Britney.
       James answered the complaint. Britney’s conservators answered in her place and
alleged various affirmative defenses, including undue influence. Lynne filed a special


                                              7
motion to strike pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP
motion). The trial court denied Lynne’s anti-SLAPP motion, finding that Sam had
provided sufficient evidence of a prima facie case as to his claims against Lynne, and had
established a probability of prevailing on those claims. This court affirmed the ruling.5
Probate court order prohibiting Britney’s testimony
       On April 13, 2011, Sam served notice of Britney’s deposition. On April 27, 2011,
upon application for instructions by Britney’s court-appointed counsel, the probate court
issued an order under seal prohibiting the conservators from producing Britney as a
witness for trial, deposition or any other type of examination conducted in connection
with this action (2011 probate court order). The 2011 probate court order was supported
by a declaration from a medical practitioner appointed by the probate court pursuant to
Evidence Code section 730.
       On May 9, 2011, the conservators objected to producing Britney for deposition
based on the 2011 probate court order. Sam moved to compel her independent medical
examination. On June 15, 2011, the trial court denied Sam’s motion, declining to
overrule the probate court.
       On August 17, 2012, Sam served a notice for Britney to appear at trial. Britney’s
court-appointed attorney again sought instructions from the probate court, which
reaffirmed its 2011 probate court order prohibiting Britney from testifying at trial (2012
probate court order). The 2012 probate court order stated that there had been no material
change in the facts supporting the 2011 probate court order. Sam later filed a motion to
compel Britney’s attendance at trial. The conservators filed objections and a motion to
quash. The trial court deferred ruling until Britney was called as a witness at trial.


5      The issue of actual malice, which is the crux of Lynne’s current appeal, was not
raised as a specific ground for reversal in the appeal of the anti-SLAPP ruling. Instead,
Lynne argued that Sam could not make out a prima facie case of defamation because: (1)
the cause of action for defamation concerned only protected opinion; (2) the factual
statements Sam disputed were true; and (3) Sam was “libel-proof,” meaning he was not
harmed by the statements in the book because they had previously been published by the
news media in connection with Spears’s declaration in support of the restraining order.

                                              8
James’s motion for summary adjudication
       On June 19, 2012, James filed a motion for summary adjudication on Sam’s cause
of action for intentional infliction of emotional distress and the issue of whether Sam
could recover emotional distress damages on his battery claim. In the motion, James
claimed that Sam could not show that his claimed emotional distress rose to the level of
“severe” or “extreme” distress as required under Hughes v. Pair (2009) 46 Cal.4th 1035,
1050. James referenced a 2009 declaration filed by Sam in which Sam claimed that he
lived a “normal” life until the publication of Lynne’s book.
       In opposing James’s motion, Sam did not deny that he had submitted the 2009
declaration. He claimed that in addition to what he had previously disclosed, he suffered
from agoraphobia stemming from his fear of James.
       On October 4, 2012, the trial court issued an order granting James’s motion for
summary adjudication. The court noted that his recent claim that he suffered agoraphobia
and an enduring fear of being hunted by James materially and substantially contradicted
his earlier deposition testimony that he lived a normal, quiet life until the publication of
Lynne’s book. The court found that Sam obtained judicial relief when the court acted in
reliance on Sam’s 2009 declaration, and is now judicially estopped from claiming that he
suffered emotional distress prior to the publication of Lynne’s book.
       Sam’s attorney asked for clarification of the ruling and its effect on the battery
claim. Counsel and the court agreed that the pain and suffering associated with the
alleged battery were not addressed by the motion or covered by the order.
Motions for nonsuit
       Trial commenced in October 2012. Following Sam’s case-in-chief, Lynne filed a
motion for nonsuit on Sam’s claims against her regarding actual malice and punitive
damages pursuant to Code of Civil Procedure section 581c.
       James filed a motion for nonsuit on Sam’s cause of action for battery. James
argued that Sam had failed to provide substantial evidence of injury or compensable
harm. He also moved for nonsuit on Sam’s claim for punitive damages.



                                              9
        Britney filed a motion for nonsuit on the breach of contract cause of action,
arguing that Sam had failed to provide substantial evidence of a contract and failed to
rebut the presumption of undue influence.
        On November 1, 2012, the trial court issued an order granting the motions for
nonsuit for the reasons stated on the record. Judgment was entered on November 28,
2012.
        On December 31, 2012, Sam filed a notice of appeal from the judgment.
                                        DISCUSSION
I. Motions for nonsuit
        A. Standard of review
        “A defendant is entitled to a nonsuit if the trial court determines that, as a matter
of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his
favor. [Citation.] ‘In determining whether plaintiff’s evidence is sufficient, the court
may not weigh the evidence or consider the credibility of witnesses. Instead, the
evidence most favorable to plaintiff must be accepted as true and conflicting evidence
must be disregarded. The court must give “to the plaintiff[’s] evidence all value to which
it is legally entitled, . . . indulging every legitimate inference which may be drawn from
the evidence in plaintiff[‘s] favor.”’ [Citation.] A mere ‘scintilla of evidence’ does not
create a conflict for the jury’s resolution; ‘there must be substantial evidence to create the
necessary conflict.’ [Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d
278, 291 (Nally).)
        “In reviewing a grant of nonsuit, we are ‘guided by the same rule requiring
evaluation of the evidence in the light most favorable to the plaintiff.’ [Citation.] We
will not sustain the judgment ‘“unless interpreting the evidence most favorably to
plaintiff’s case and most strongly against the defendant and resolving all presumptions,
inferences and doubts in favor of the plaintiff a judgment for the defendant is required as
a matter of law.”’ [Citation.]” (Nally, supra, 47 Cal.3d at p. 291.) Bearing this standard
in mind, we turn to the merits of the motions for nonsuit granted in this case.



                                              10
       B. Lynne’s motion for nonsuit on Sam’s defamation claim
              1. The elements Sam was required to establish
       The elements of a defamation claim are: (a) a publication that is (b) false, (c)
defamatory, (d) unprivileged, and (e) has a natural tendency to injure or cause special
damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.)
       However, the First Amendment limits the scope of defamation law for a public
figure like Sam.6 “If the person defamed is a public figure, he cannot recover unless he
proves, by clear and convincing evidence . . . , that the libelous statement was made with
‘“actual malice” -- that is, with knowledge that it was false or with reckless disregard of
whether it was false or not.’ [Citation.]” (Reader’s Digest Assn. v. Superior Court
(1984) 37 Cal.3d 244, 256 (Reader’s Digest).)
       The term “reckless disregard” has been further explained. “‘[R]eckless conduct is
not measured by whether a reasonably prudent man would have published, or would have
investigated before publishing. There must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of his
publication. Publishing with such doubts shows reckless disregard for truth or falsity and
demonstrates actual malice.’ [Citation.]” (Reader’s Digest, supra, 37 Cal.3d at pp. 256-
257, fn. omitted.)
       Thus, the test for determining actual malice is a “subjective test, under which the
defendant’s actual belief concerning the truthfulness of the publication is the crucial
issue. [Citation.] The test directs attention to the ‘defendant’s attitude toward the truth or
falsity of the material published . . . [not] the defendant’s attitude toward the plaintiff.’
[Citation.]” (Reader’s Digest, supra, 37 Cal.3d at p. 257.) As the United States Supreme
Court has explained, this standard is necessary because “the stake of the people in public
business and the conduct of public officials is so great.” (St. Amant v. Thompson (1968)
390 U.S. 727, 731-732.) “[T]o insure the ascertainment and publication of the truth about




6      Sam concedes that he is a public figure for the purposes of this analysis.

                                               11
public affairs, it is essential that the First Amendment protect some erroneous
publications as well as true ones.” (Ibid.)
       “Normal principles of substantial evidence review do not apply to the appellate
court’s independent review of an actual malice determination in a First Amendment libel
case.” (McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 846, fn omitted.) Specifically,
“[t]his court is not bound to consider the evidence of actual malice in the light most
favorable to [the plaintiff] or to draw all permissible inferences in favor of [plaintiff]. To
do so would compromise the independence of our inquiry.” (Ibid.) “‘[T]he
constitutional responsibility of independent review encompasses far more than [an]
exercise in ritualistic inference granting.’ [Citation.]” (Ibid.) Thus, we “must
independently decide whether the evidence in the record is sufficient to cross the
constitutional threshold that bars the entry of any judgment that is not supported by clear
and convincing proof of ‘actual malice.’” (Bose Corp. v. Consumers Union (1984) 466
U.S. 485, 511 (Bose).)
              2. Evidence regarding actual malice
       In arguing that he set forth clear and convincing evidence of actual malice, Sam
focuses on his own testimony, and that of Adnan, denying that he made the statements
referenced in the book or carried out the acts described in the book.7 Thus, Sam argues,
the evidence clearly and convincingly showed that Lynne attributed to him statements he
never made and acts he never committed. Sam contends that these statements are thus
defamatory under Masson v. New Yorker Magazine (1991) 501 U.S. 496, 511 (Masson);
and Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1132 (Selleck).) In
sum, Sam argues, evidence that Sam and Adnan never made the statements gave rise to
an inference that Lynne fabricated those statements. Sam cites Burrill v. Nair (2013) 217




7      Britney’s child custody monitor, Ms. Johnson, also supported Sam by testifying
that she had used Britney’s telephone frequently during the time period in question and it
was never out of order. In addition, Ms. Johnson testified that she never observed any of
Britney’s cars being out of commission.

                                              12
Cal.App.4th 357, 393 as support for his argument that a jury could have found actual
malice on the basis of these allegedly fabricated statements.
       Lynne points out that nonsuit is a favored remedy in cases involving free speech.
“While nonsuits at this stage are, in general, disfavored . . . , ‘unnecessarily protracted
litigation would have a chilling effect upon the exercise of First Amendment rights, [thus]
speedy resolution of cases involving free speech is desirable.’ [Citation.]” (Jensen v.
Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965.) “[I]n defamation actions,
nonsuit, like summary judgment, is ‘a favored remedy.’ [Citation.]” (Ibid.)
       Lynne argues that Sam failed to prove with clear and convincing evidence that at
the time her book was published, she knew that the statements were false or acted in
reckless disregard of the truth. Lynne contends that the question of actual malice must be
evaluated by her state of mind when she published her book in September 2008. (See
Bose, supra, 466 U.S. at p. 498 [independent evidence must exist that publisher realized
the inaccuracy of the statement, or entertained serious doubts about its truthfulness, at the
time of publication].) Here, Lynne argues, there is no evidence that she actually knew
that any of the statements were false or actually had any doubts as to their veracity. On
the contrary, the evidence suggests that Lynne believed the statements to be true. She
swore to the truth of the statements in a declaration filed in superior court eight months
prior to the publication of her book. During the eight months between the filing of the
declaration and the publication of her book, Sam never made any effort to deny or refute
those statements. Thus, not only had Lynne sworn under oath to the truth of those
statements, Lynne had no idea that Sam disputed the truth of those statements at the time
that she published her book.8


8      Sam defends his failure to file an opposing declaration, or any other document
refuting Lynne’s declaration, in the superior court by referring to language in the anti-
SLAPP decision in this case (Lutfi v. Spears (Nov. 23, 2010, B218211) [nonpub. opn.]).
The quoted language is lifted from a discussion of the libel-proof doctrine. Lynne argued
that because Sam’s reputation was already so tarnished, he could not be harmed by the
statements in her book. We pointed out that the statements at issue had been disclosed to
the public through news media, which characterized the statements as allegations made in

                                              13
       Lynne relies on Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146 (Annette F.).
In Annette F., the statement at issue, made by Sharon S., was “‘Annette, a convicted
perpetrator of domestic violence against me, has made repeated false accusations of
child abuse and neglect against me while actively litigating for sole custody of both
children . . . .’” (Id. at p. 1158.) Annette initiated a libel action against Sharon based on
this statement. In evaluating Sharon’s anti-SLAPP motion, the Court of Appeal first
determined that Annette’s libel action arose from acts in furtherance of Sharon’s right of
free speech. The court further found that Annette was a limited purpose public figure,
therefore the actual malice standard was applicable. The court then went on to analyze
Sharon’s statement that Annette was a convicted perpetrator of domestic violence, when
in fact Annette had never been convicted of any crime. The court quoted New York
Times Co. v. Sullivan (1964) 376 U.S. 254, which explained that the actual malice
standard is “based on a recognition that ‘erroneous statement is inevitable in free debate’
and ‘must be protected’ to give freedom of expression the ‘breathing space’ it needs to
survive. [Citation.]” (Annette F., supra, at p. 1168.) The court interpreted Sharon’s
statement that Annette was a convicted perpetrator of domestic violence to refer to a
family court finding that Annette had committed domestic violence against Sharon.
(Ibid.) Annette introduced no evidence to contradict Sharon’s declaration as to her belief
in the truth of the allegedly defamatory statement, thus Annette failed to carry her burden
on the issue of actual malice. (Id. at p. 1169.) The court emphasized that “[a]ctual
malice may not be inferred solely from evidence of personal spite, ill will, or bad motive.
[Citation.]” (Ibid.)




a court proceeding. This characterization of the statements permitted the public to
understand that the statements were not proven fact. Thus, application of the libel-proof
doctrine, which generally applies where criminal convictions mar the defendant’s
reputation, was inappropriate. The fact that the statements were allegations made in a
court proceeding does not excuse Sam’s failure to refute those statements in the context
of his defamation claim. He did not make known his position that the statements were
false.

                                              14
       The court further explained,
              “[A] critical consideration in determining the weight to be given
       such factors is the extent to which the allegedly defamatory statement
       deviates from the truth. False statements that are completely ‘fabricated by
       the defendant’ or ‘so inherently improbable that only a reckless man would
       have put them in circulation’ are particularly likely to have been made with
       actual malice. . . .

              “On the other hand, false statements that have some element of truth
       to them are logically less susceptible to such a finding.”

(Annette F., supra, 119 Cal.App.4th at pp. 1169-1170.)

       Sharon’s statement that Annette was a convicted perpetrator of domestic violence
was not so far from the truth as to permit an inference of actual malice. The court was
left with a “speculative possibility that Sharon might have known or suspected that her
use of the word ‘convicted’ was technically incorrect.” Such a speculative possibility fell
short of clear and convincing evidence. (Annette F., supra, 119 Cal.App.4th at p. 1170.)
       Lynne argues that here, as in Annette F., her statements were not inherently
improbable. In particular, her statements were in line with Sam’s own testimony that he
moved in, began managing Britney’s life, set rules for the paparazzi, had the authority to
authorize who could and could not enter Britney’s home, kept cell phones in her car, and
was involved in managing her drug rehabilitation and prescription medications. As in
Annette F., Sam is left with nothing but the speculative possibility that Lynne simply
fabricated these statements, and such speculation is insufficient to show actual malice.
              3. Analysis under relevant case law
       Case law emphasizes that in carrying out an analysis of actual malice, an
important distinction must be made. This distinction was set forth by the United States
Supreme Court in Bose: “[T]here is a significant difference between proof of actual
malice and mere proof of falsity.” (Bose, supra, 466 U.S. at p. 511.) In this case, we
must accept Sam’s contention that he did not utter the statements or commit the
underlying acts referred to in Lynne’s book. (See, e.g., Masson, supra, 501 U.S. at pp.



                                            15
520-521 [in determining whether Masson has shown sufficient falsification to survive
summary judgment, it must be assumed, that he is correct in denying that he made the
statements attributed to him].) Thus, we must accept that the challenged statements in
Lynne’s book are false.
       However, the truth or falsity of the statements in Lynne’s book must not be the
focus of this discussion. Instead, our task is to determine whether Sam provided clear
and convincing evidence that Lynne published the statements with actual malice. To do
so, Sam was required to show, by clear and convincing evidence, that Lynne either knew
the statements were false, or subjectively entertained serious doubts as to their truth. As
set forth below, we find that Sam’s evidence that the statements were false does not
amount to clear and convincing evidence that Lynne published the statements with actual
malice.
       The evidence in this case supports a conclusion that Lynne believed the statements
in the book were true at the time of publication. Eight months before publication, she
swore that she heard Sam and Adnan utter those statements in a declaration filed under
penalty of perjury. This evidence strongly suggests that whether or not Lynne’s
recollection was entirely accurate, her subjective belief was that the statements were true.
(Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172, 190 [“mere errors are
not enough to support a libel claim”].) It is possible that Lynne did not remember the
conversations clearly, or carelessly interpreted words that Sam uttered. However, even
such extreme misconceptions on the part of the publisher do not amount to actual malice.
(Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 88 (Christian
Research) [“‘[g]ross or even extreme negligence will not suffice to establish actual
malice’”].)
       As set forth above, Sam did not file an opposing declaration or otherwise make
known to Lynne that he disputed the accuracy of her sworn declaration. There is no
evidence that, at the time of publication, Lynne knew that Sam disagreed with her
recollection of the events in question. Even if Lynne were to later admit that she made a
mistake and reported the events inaccurately -- which she has not done -- such an


                                             16
admission would not establish that Lynne realized the inaccuracy at the time of
publication. (Bose, supra, 466 U.S. at p. 512.) In short, Lynne’s decision to file a sworn
declaration under penalty of perjury in order to get a restraining order against Sam is
powerful evidence of her belief in those statements. There is absolutely no evidence that
she had any reason to doubt the truth of those statements at the time that her book was
published.
       Sam insists that his and Adnan’s denial of the statements constitute evidence that
Lynne entirely fabricated the statements. As Sam points out, actual malice may be
inferred where a story is fabricated by the defendant or is completely a product of the
defendant’s imagination. (Burrill v. Nair, supra, 217 Cal.App.4th 357 [father in bitter
custody dispute made defamatory statements about reunification therapist in online
postings, radio interview, and neighborhood flyer where father cited no source for his
accusations and charges were product of his imagination].) While Sam’s and Adnan’s
denials of the statements provide some evidence of fabrication, the denials do not rise to
the level of clear and convincing evidence.
       “‘The burden of proof by clear and convincing evidence “requires a finding of
high probability. The evidence must be so clear as to leave no substantial doubt. It must
be sufficiently strong to command the unhesitating assent of every reasonable mind.”’
[Citation.]” (Christian Research, supra, 148 Cal.App.4th at p. 84.) Sam’s and Adnan’s
denials of the statements in Lynne’s book must be considered in the context of the very
convincing evidence that she believed them to be true. She believed them so adamantly,
that she filed a sworn declaration under penalty of perjury in order to prevent Sam from
contacting her daughter. In addition, as set forth above, the statements are not so
“‘inherently improbable’” under the circumstances as to give rise to an unambiguous
inference of fabrication. (Annette F., supra, 119 Cal.App.4th at p. 1170.) Sam admitted
to controlling aspects of Britney’s life, including deciding who was permitted in her
home and whether her parents were permitted to see her. A permanent restraining order
is now in place preventing Sam from contacting Britney, which provides a strong
suggestion that Sam was not a positive influence in Britney’s life.


                                              17
       Finally, Sam’s and Adnan’s denials of the specific statements set forth in the book
do not foreclose the possibility that, during this apparently confusing and chaotic time in
both Britney’s and Lynne’s lives, Lynne misunderstood certain utterances or
misinterpreted statements that she heard. Sam has not insisted that he never spoke to
Lynne about Britney’s medications, never spoke to Lynne about Britney’s cell phones or
house phones, never spoke to Lynne about Britney’s cars or about Adnan’s sexual
orientation. In fact, Sam admits to being involved in Britney’s drug addiction recovery
efforts and to having some control over her cell phones. The evidence presented allows
for the assumption -- in fact, the probability -- that such conversations took place,
especially during the time that Sam and Lynne were in close contact. It is not entirely
surprising, given the history of the relationship between the parties, that the two may
have differing recollections of some of the words exchanged between them. Such
misunderstandings do not constitute actual malice.
       Masson and Selleck, cited by Sam in support of his position, are distinguishable.
In Masson, a noted psychoanalyst sued the publisher and author of a magazine article and
book which contained lengthy passages attributed to him in quotation marks. Masson
objected to these errors before the publication of both the magazine and the book. The
trial court granted summary judgment for the defendants, based on its determination that
the alleged inaccuracies were substantially true or were rational interpretations of
ambiguous conversations, thus there was no actual malice. The Court of Appeals
affirmed, but the United States Supreme Court reversed. The high court disagreed with
the lower courts’ conclusion that “an altered quotation is protected so long as it is a
‘rational interpretation’ of the actual statement.” (Masson, supra, 501 U.S. at p. 518.)
The court explained: “Where . . . a writer uses a quotation, and where a reasonable
reader would conclude that the quotation purports to be a verbatim repetition of a
statement by the speaker, the quotation marks indicate that the author is not involved in
an interpretation of the speaker’s ambiguous statement, but attempting to convey what
the speaker said.” (Id. at p. 520.) The court had access to tape-recorded interviews that
the author did with Masson, therefore it could compare Masson’s actual statements with


                                             18
the quoted passages. The high court concluded that some of the published passages
differed materially from the tape-recorded statements, and could be considered damaging.
       The matter before us is distinguishable. First, the statements challenged in the
FAC which Lynne attributed to Sam are not in quotation marks. Therefore, Lynne was
not attempting to make a verbatim repetition of Sam’s statements, but was conveying her
recollection of his words. In addition, unlike the author in Masson, Lynne was not aware
prior to publication of Sam’s disagreement with her recollection of his statements.
Therefore, in contrast to Masson, there is no evidence that, prior to publication, she knew
of the falsity of the statements or had reason to entertain serious doubts as to their truth.
       In Selleck, the father of a well-known celebrity sued the defendant for an article
which followed the headline: “‘Tom Selleck’s love secrets -- By His Father.’” Many
statements in the article were attributed to the plaintiff, who claimed that he had never
made any statements to the defendant. (Selleck, supra, 166 Cal.App.3d at pp. 1128-
1129.) The Selleck court confirmed that “[f]alsely ascribing statements to a person which
would have the same damaging effect as a defamatory statement about him is libel.
[Citation.]” (Id. at p. 1132.) However, the case did not discuss the issue of actual malice;
therefore it is not helpful to Sam.
       Based on the evidence discussed above, we conclude that any inference that Lynne
entirely fabricated the statements set forth in her book is not sufficiently strong to meet
the clear and convincing standard. Thus, Sam cannot establish the required element of
actual malice, and his defamation claim was properly dismissed.
       C. Britney’s motion for nonsuit on Sam’s breach of contract claim
       The conservators’ motion for nonsuit on Sam’s cause of action for breach of
contract was brought on two independent grounds: (1) lack of substantial evidence of a
contract; and (2) failure to rebut the presumption of undue influence.
              1. Failure to provide substantial evidence of an enforceable contract
                      a. The parties’ arguments
       In order to defeat the conservators’ motion for nonsuit, Sam was required to
present substantial evidence of each of the elements of his case. The conservators’


                                              19
arguments in the trial court focused on the formation of, and existence of, an enforceable
contract. They argued that the alleged oral contract Sam described at trial differed
materially from the oral contract he pled in the FAC. Due to the resulting vagueness and
uncertainty, there could have been no “reciprocal assent to a definite proposition” or the
requisite “meeting of the minds” for formation of an enforceable contract. (Kessinger v.
Organic Fertilizers, Inc. (1957) 151 Cal.App.2d 741, 750.)
       Sam argues that a contract need not set forth every term and condition to be
enforceable; instead, the evidence must simply show agreement on essential terms. (Cal.
Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481 [“Where a contract is so
uncertain and indefinite that the intention of the parties in material particulars cannot be
ascertained, the contract is void and unenforceable”].) “‘Mutual assent is gathered from
the reasonable meaning of the words and acts of the parties, and not from their
unexpressed intentions or understanding.’ [Citation.]” (Russell v. Union Oil Co. (1970)
7 Cal.App.3d 110, 114.) Sam further argues that the law disfavors holding agreements
unenforceable because of uncertainty. (Patel v. Liebermensch (2008) 45 Cal.4th 344, 349
[“‘“‘[t]he law does not favor but leans against the destruction of contracts because of
uncertainty; and it will, if feasible, so construe agreements as to carry into effect the
reasonable intentions of the parties if [they] can be ascertained . . . .’”’”].)
                      b. The evidence
       In order to evaluate the parties’ competing positions, it is necessary to review the
evidence regarding formation of the alleged contract. In his initial complaint, Sam
alleged that after they met in 2007, a strong friendship developed between Sam and
Britney. Britney sought Sam’s advice with respect to almost every important decision in
her life. In or about September 2007, at Britney’s request, Sam accompanied Britney to a
meeting with record company executives to discuss production and release of Britney’s
new album, “Blackout.” At the meeting, the executives were initially reluctant to discuss
the details of the record in the presence of Sam. However, Britney “without ever having
discussed the matter with [Sam], informed the record company executives that [Sam] was



                                               20
her new ‘manager’ and gave them authorization to discuss ‘Blackout’ with her in front of
[Sam].”
       In the days that followed, Britney repeatedly asked Sam to take on the role of her
manager. Beginning in or about October 2007, Sam took on a variety of management
services for Britney, including facilitating booking, arranging and coordinating legal
meetings, court hearings, doctor visits, child visitation and other matters, including issues
concerning the upcoming album. As to the terms of the alleged agreement, Sam stated
that he agreed to act as Britney’s manager for a term of four years, to be compensated at a
rate of 15 percent of the income generated by Britney during that period.
       In his FAC, Sam alleged that he and Britney first began negotiating the contract in
June 2007. However, the FAC also states that Britney first broached the idea at a
meeting with record company executives in September 2007 “without previously having
discussed the matter with [Sam].” The FAC alleges that Sam and Britney entered the oral
agreement on or about October 13, 2007. As to the material terms of the agreement, the
FAC alleges that Sam would be compensated at a rate of 15 percent of all gross revenues
earned and received by Britney, and that Sam could terminate the contract with cause on
30 days notice and without cause on 90 days notice.
       However, in his deposition, taken April 25, 2011, Sam testified that he could not
recall when the alleged contract with Britney began.
       At trial, in contrast to his prior allegations, Sam testified that he was hired as
Britney’s manager in early June 2007. Sam described the meeting with record
executives, but now placed the meeting four months earlier. He testified that Britney
asked him to be her manger the same day, and he accepted. Sam further testified that he
imposed two conditions before he agreed to act as Britney’s manager: first, he would
assemble a “varsity team” for Britney to make up for his lack of experience; and second,
she would promise not to abuse drugs.
       In spite of this testimony, Sam testified that he could not recall whether or not he
had a contract with Britney when he took her to see her music attorney on July 1, 2007.
He also did not know if he was acting as Britney’s manager in September 2007 when he


                                              21
walked away from the relationship due to her drug abuse. Sam did not know whether it
was before or after September 2007 that he discussed financial terms of the management
relationship with Britney. Nor could he recall if that discussion was before or after
Britney lost custody of her children on October 1, 2007.
         Sam testified that he continued to perform under the alleged management contract
until late January 2008, when James obtained a conservatorship over Britney which
de facto terminated the contract. Sam was never compensated for his services under the
alleged agreement.
         Sam acknowledges that there were variances in his allegations regarding the date
of the contract, the right to terminate, and the basis for the calculation of his alleged 15
percent compensation. However, he claims that the variances between his trial testimony
and his pleadings were immaterial.
                       c. Analysis
         In analyzing this issue, we first note that within the discussion of substantial
evidence, the parties discuss a related question of whether there was a material variance
between the pleadings and the proof at trial. We discuss these two topics separately
below.
                              i. lack of substantial evidence
         We begin our analysis with some basic law regarding the question of the existence
of an oral contract. In general, “[w]here the existence of a contract is at issue and the
evidence is conflicting or admits of more than one inference, it is for the trier of fact to
determine whether the contract actually existed.” (Bustamante v. Intuit, Inc. (2006) 141
Cal.App.4th 199, 208.) In particular, “[w]hen the contract relied on is oral, its
interpretation in the first instance is a question of fact to be determined by the jury.
[Citation.] The question, therefore, [is] one of evidence, and it [is] for the jury to
determine from the facts and circumstances proved, including, of course, the
conversations between the parties, whether or not a contract was proven. [Citation.]”
(Treadwell v. Nickel (1924) 194 Cal. 243, 261-262.)



                                               22
       The conservators point out that “[i]f no meeting of the minds has occurred on the
material terms of a contract, basic contract law provides that no contract formation has
occurred.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 797
(Weddington).) “‘“The terms of a contract are reasonably certain if they provide a basis
for determining the existence of a breach and for giving an appropriate remedy.”’
[Citation.]” (Id. at p. 811.)
       “If, by contrast, a supposed ‘contract’ does not provide a basis for determining
what obligations the parties have agreed to, and hence does not make possible a
determination of whether those agreed obligations have been breached, there is no
contract. [Citations.]” (Weddington, supra, 60 Cal.App.4th at p. 811.) In other words,
the conservators’ defense of uncertainty “has validity only when the uncertainty or
incompleteness of the contract prevents the court from knowing what to enforce.
[Citations.]” (Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 500.) We must
determine whether Sam’s inconsistent testimony as to the start date, the right to
terminate, and calculation of his fees shows insufficient clarity of material terms to
enforce the alleged contract as a matter of law.
       We find that it does not. As set forth above, it is a factual question for the jury to
determine whether an oral contract was formed between Sam and Britney, and if so, to
interpret the material terms of that contract.9 Sam presented evidence that he and Britney


9       We note that the cases cited by the conservators in support of their argument that
the alleged oral contract lacked mutual assent to material terms involve contracts
evidenced in writing. (See Donovan v. RRL Corp. (2001) 26 Cal.4th 261 [involving
automobile advertisement in newspaper that contained typographical error]; Weddington,
supra, 60 Cal.App.4th 793 [involving a written settlement and subsequent order
enforcing the settlement]; Hennefer v. Butcher, supra, 182 Cal.App.3d 492 [involving a
written contract to sell land]; Siegel v. Warner Bros. Entm’t, Inc. (2008) 542 F.Supp.2d
1098, 1137-1138 [analyzing a written exchange of letters between the parties and
concluding that the writings revealed that the parties had not finalized and assented to all
material terms of a settlement].) As set forth above, the existence of a contract is a
question of law for the court only when the evidence is not in conflict. (Bustamante v.
Intuit, supra, 141 Cal.App.4th at p. 208.)


                                             23
entered an oral agreement in June 2007 in which Britney agreed to pay Sam 15 percent of
her income for the term of the contract. Under the relevant standards of review, we must
accept this evidence as true and disregard all conflicting evidence. (Nally, supra, 47
Cal.3d at p. 291.) Giving this testimony the value to which it is entitled on review, we
find that it is sufficient to permit a jury to find in Sam’s favor. The conservators were
entitled to point out the discrepancies in Sam’s testimony regarding the material terms of
the alleged contract, and to attempt to convince the jury that Sam’s testimony was
untrue.10 However, ultimately the question of the existence of a contract, and the
question of the material terms of any such contract, were questions of fact for the jury to
decide.
                            ii. Material variance between pleading and proof
       Within their substantial evidence argument, the conservators raise the issue of
material variance. They argued to the trial court that “the alleged oral contract that [Sam]
attempted to describe in his trial testimony varied materially from the oral contract he
alleged in his pleadings and throughout the litigation.” Such material inconsistencies, the
conservators argued, show that there could not have been a meeting of the minds.
       A material variance is grounds for nonsuit. (Brazil v. Pacific American Petroleum
Co. (1930) 108 Cal.App. 737, 738.) “‘[T]he question whether a variance between
pleading and proof in a given case is material must be determined from the circumstances
. . . and that a variance is immaterial and may be disregarded where the case was as fully
and fairly tried upon the merits as though the variance had not existed.’ [Citation.]”

10      The conservators devote many pages of their appellate brief to casting doubt on
Sam’s trial testimony. They argue that Sam presented no corroborating evidence of his
alleged contract with Britney. For example, he took no action to inform Britney’s
business manager that he had a contract; he did not take basic steps with her record label
to show that he was her manager; he failed to allege that he took action that a manager
would undertake; he brought no new business to Britney; and he did not assert his
contract when circumstances called for him to do so. This evidence is properly presented
to a jury for a factual determination regarding the existence of the alleged contract -- not
to an appellate court. We decline to make any judgment on the conflicting evidence
regarding the alleged contract until a jury or other fact finder has had the opportunity to
do so.

                                             24
(Gudelj v. Gudelj (1953) 41 Cal.2d 202, 212.) “In other words, ‘a variance to be fatal
must have misled or served to mislead the adverse party.’ [Citation.]” (Ibid.)
       Sam argues that a variance in the date of the contract is not material if it has not
prejudiced the defendant. In support of this claim, he cites several cases. The first case,
State Medical Education Bd. v. Roberson (1970) 6 Cal.App.3d 493 (Robserson), was an
action brought by a lender against a student to whom the lender had loaned money for
completion of her medical studies. Summary judgment in favor of the lender was
granted, and affirmed on appeal. According to the contract terms, the first payment by
the student was due “on or before one year from the date the applicant completes his
internship.” (Id. at p. 496.) In light of the student’s May 1966 declaration indicating that
she had not, to date, completed her internship, the lender’s first motion for summary
judgment was denied. (Id. at pp. 496-497). However, in November 1968 the lender filed
a second motion for summary judgment. The student admitted that she had completed
her internship in June 1966. (Id. at p. 498.) In arguing that the motion for summary
judgment was improperly granted, the student pointed out the variance between the
lender’s pleading -- which stated that the student had completed her internship in 1962 --
and the proof, which showed that she did not complete her internship until 1966. Under
the circumstances, the Court of Appeal concluded “such a variance did not constitute a
complete failure of proof of the general scope and meaning of plaintiff’s claim; if, as was
the case, defendant did in fact complete her internship, it became immaterial . . . whether
that event took place in 1962 or 1966.” (Id. at p. 502.)
       In Marsh Wall Products, Inc. v. Henry Marcus Bldg. Specialties (1958) 162
Cal.App.2d 371, one of the defendant’s arguments on appeal was that the trial court erred
in denying his motion to strike out all testimony on the plaintiff’s claim for open book
account. The defendant argued that there was a material variance between the pleading
and the proof. Specifically, the pleading stated that the relevant transactions occurred
“on or about July 1, 1954,” while the evidence at trial “referred to transactions extending
from March 30 to May 25, 1954.” (Id. at p. 380.) The court pointed out that the
complaint did not allege a precise date, but instead claimed that “within four years


                                             25
immediately preceding the commencement of the action, to wit, on or about July 1, 1954,
defendants became indebted to plaintiff upon an open book account for merchandise for
the reasonable value of $2,075.31.” (Ibid.) In addition, the defendants did not demand a
bill of particulars. (Ibid.) Under the circumstances, the Court of Appeal held that the
trial court did not err in denying the defendant’s motion to strike the relevant testimony.
       Finally, Sam cites Ogden v. United Bank & Trust Co. (1929) 206 Cal. 571, 574-
575 (Ogden). In Ogden, the contract was for the plaintiff to perform farming work on
certain land. When the individuals did not pay the plaintiff for his work, he went to the
bank and spoke to an officer of the bank. The plaintiff insisted that “unless the bank
would pay for the work done and would be paymaster, he was through and would do no
further work.” (Id. at p. 573.) The plaintiff was paid and an officer of the bank told him
to continue to work. On appeal the defendant agued that there was a material variance
between the agreement pleaded in the complaint and the agreement proved. Specifically,
while the contract alleged what was between the plaintiff and two individual defendants,
the proof established an obligation on the part of the bank to pay the plaintiff. (Ibid.)
Under these circumstances, the court held that “any variance did not mislead defendants
to their prejudice and hence cannot be held to be material.” (Id. at p. 575.)
       The cases discussed are instructive. Variances as to dates and specific terms of an
alleged contract are not the type of variances that will cause prejudice to the opposing
party. “[A] variance between the allegations of a pleading and the proof will not be
deemed material unless it has actually misled the adverse party to his prejudice in
maintaining his action or defense on the merits.” (Martin v. Henderson (1954) 124
Cal.App.2d 602, 607.) For example, where “‘the judgment rests upon the determination
of issues which were neither foreshadowed by the pleadings nor understood by the parties
to be in dispute at the trial, and which determination is the result of one party’s failure to
produce evidence of whose need he has had no warning, we have a case where the
departure from the pleadings may not be merely technical, but substantial, resulting in a
miscarriage of justice.’” (Ibid.)



                                              26
       The contradictions in Sam’s testimony regarding the time frame of the alleged
contract, and the terms of the alleged contract, do not fundamentally undermine his claim
for breach of contract. The elements of a breach of contract claim are: (1) the contract;
(2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4)
the resulting damages to plaintiff. (Hamilton v. Greenwich Investors XXVI, LLC (2011)
195 Cal.App.4th 1602, 1614.) Sam never admitted that there was no contract -- on the
contrary, he consistently maintained that there was a contract between him and Britney.
No miscarriage of justice results from permitting a jury to hear and resolve conflicts in
evidence about the dates or terms of any such contract. Many cases that go to trial
involve similar conflicts in evidence.
       We reject the conservators’ argument that Sam’s conflicting testimony could not
create the existence of a triable fact under D’Amico v. Board of Medical Examiners
(1974) 11 Cal.3d 1 (D’Amico) and its progeny. The D’Amico court explained that when
discovery has produced an admission or concession on the part of a party opposing
summary judgment which demonstrates that there is no factual issue to be tried, such
admission should be given deference when it comes to determining whether a triable
issue of fact exists between the parties. (Id. at pp. 21-22.) The D’Amico rule “‘operates
to prevent a party from playing “fast and loose” with the courts by creating “sham” issues
of fact. . . .’” (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 177.) For example, in
Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, a truck driver admitted in
deposition that his decision to move his tow truck to a certain area was his own decision.
(Id. at p. 154.) However, at trial, the driver testified three times that officers had directed
him where to move the tow truck. (Id. at p. 160.) The Court of Appeal determined that
the driver’s admissions “negat[ed] the claimed duty of the police officers,” and that
“[t]estimony of [the] plaintiff simply contradicting these admissions did not constitute
substantial evidence creating an issue of fact.” (Id. at p. 158.) Because the admissions
prevented the plaintiff from showing the existence of a duty, the trial court properly
granted the defendants’ motion for nonsuit. (See also Leasman v. Beech Aircraft Corp.
(1975) 48 Cal.App.3d 376, 381, 383 [affirming summary judgment where plaintiff


                                              27
admitted in deposition and interrogatory responses that she had not suffered physical
injury but filed a counter-declaration in opposition to the motion contradicting those
admissions].) As Mikialian makes clear, the D’Amico rule applies when a party has made
admissions undermining a fundamental element of his or her case, such as the existence
of a duty.
       In the matter before us, Sam consistently alleged that he had an oral contract for
management services with Britney, that he performed under that contract, that she
breached the contract and that he was damaged by the breach. Under the circumstances,
nonsuit was improper. Questions regarding the existence of the oral contract, the time
frame of any such contract, and the terms of the alleged contract, should have been
determined by a jury tasked with weighing the conflicting evidence on these factual
questions.
              2. Undue influence
       The conservators advanced a second theory for their motion for nonsuit. They
argued that even if Sam met his evidentiary burden of showing substantial evidence of a
meeting of the minds, he did not meet his burden of overcoming the conservators’
defense of undue influence.
       A presumption of undue influence arises when there is a concurrence of the
following elements: (1) the existence of a confidential or fiduciary relationship between
the individuals involved; (2) active participation by the person alleged to have exerted
undue influence in preparation of the will or document; and (3) an undue benefit to such
person under the document so procured. (Estate of Gelonese (1974) 36 Cal.App.3d 854,
861-862.) “All three of these factors must be present in order to have the benefit of the
presumption.” (Id. at p. 862.)
       “The presumption of undue influence, when established, is a rebuttable
presumption. [Citations.]” (Estate of Gelonese, supra, 36 Cal.App.3d at p. 862.) This
burden requires proof by a preponderance of the evidence that the agreement was not
induced by the alleged perpetrator’s undue influence. (Ibid.)



                                            28
       “The question whether the evidence adduced by a party who has the burden of
proof carries the required weight is for the trier of fact and not the court of review.
[Citations.]” (Estate of Gelonese, supra, 36 Cal.App.3d at p. 863.) Once again, the
conservators present pages of evidence for this court to review in support of their
argument that undue influence was established. This court is not the trier of fact. The
conservators’ extensive factual arguments highlight that the question of undue influence
should have been left to the jury. We cannot accept the conservators’ version of the facts
as true and affirm the nonsuit on that ground.
       While there was evidence in the record supporting imposition of the presumption
of undue influence, no such finding was made. Given the state of the evidence, we
cannot determine as a matter of law that the presumption is properly applied in this case.
While Sam admitted to a confidential relationship with Britney, more is required to show
entitlement to the presumption of undue influence. The conservators were required to
prove that Sam actively participated in soliciting Britney’s offer to be her manager.
Under Sam’s version of the facts, he did no such thing. In addition, the conservators
were required to prove that Sam unduly benefitted from the contract. The facts are
certainly in conflict on this point. According to Sam, he is owed the standard percentage
for management services that he performed during the time in question.
       “Nonsuit should be denied when the evidence is substantially conflicting and
contrary inferences can be drawn. [Citation.]” (Meadows v. Emett & Chandler (1948)
86 Cal.App.2d 1, 10.) Nonsuit on the issue of breach of contract was not properly
granted on the issue of undue influence. The matter must be reversed for a determination
by the trier of fact as to (1) whether facts existed to support a presumption of undue
influence; and, if so (2) whether Sam rebutted that presumption.
       D. James’s motion for nonsuit on Sam’s battery and punitive damages claims
       At trial, Sam testified that James barged into Britney’s house and lunged at Sam
with his fists balled. James chased Sam around the kitchen island, spitting and shouting,
and yelling at Sam, accusing Sam of hurting his daughter and threatening that Sam better
leave or “he was going to beat the hell out of me.” After five or ten minutes, James was


                                              29
removed from the premises by security. Late the next morning, James got into the house
again. He started yelling at Sam, accused Sam of abusing his ex-wife, Lynne, punched
Sam in the solar plexus and threatened to kill him. Sam testified that the punch “hurt.”
He ran to the game room and locked himself in. Sam did not seek medical assistance for
his injury, because he felt he was going to be fine. There was no visible mark left on him
from the incident.
       In his motion for nonsuit, James argued that Sam failed to present a prima facie
case of battery. First, James argued that his intent was to protect his daughter, not harm
Sam. In addition, James argued that Sam’s testimony established that he did not suffer
compensable harm. James cited Hansen v. Bledsoe (1955) 130 Cal.App.2d 70, as support
for his position that Sam’s testimony that the punch “hurt” was insufficient as a matter of
law to support a prima facie case of battery.11
       On appeal, James has abandoned his argument that there was insufficient evidence
of intent to harm. Instead, he focuses on his argument that Sam did not present sufficient
evidence of damages. James cites Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497,
which sets forth the elements of a battery claim: “‘“1. Defendant intentionally did an act
which resulted in a harmful or offensive contact with the plaintiff’s person; [¶] 2. Plaintiff
did not consent to the contact; [and] [¶] 3. The harmful or offensive contact caused
injury, damage, loss or harm to the plaintiff.”’ [Citation.]”
       James cites Chaparkas v. Webb (1960) 178 Cal.App.2d 257, 259 (Chaparkas) for
the proposition that damages must be proved with reasonable certainty. Chaparkas was
an appeal after a jury trial on an action for negligence following an automobile accident.
The jury found in favor of plaintiff Peter Chaparkas, but awarded him no damages.12 On


11      Hansen v. Bledsoe was an appeal from a final judgment following a court trial.
The appellant’s contention was that the evidence at trial did not support the sum awarded
for general damages. (130 Cal.App.2d at p. 74.) The matter was remanded for a retrial
on all issues. (Ibid.) The case does not suggest that Sam’s testimony at trial was
insufficient to set forth a prima facie case of battery.

12     The jury awarded his wife, Josephine Chaparkas, $4,500 in damages.

                                             30
appeal, Peter Chaparkas contended that the evidence required a finding of damages in his
favor. (Ibid.) The appellate court disagreed. After reciting the vague and conflicting
evidence that was presented at trial, the court explained, “[f]rom the foregoing evidence it
is readily apparent that appellant Peter has failed to maintain his burden of proving his
injuries or damages with reasonable certainty or, that if he sustained any damages, they
were proximately caused by any negligent act of defendants.” (Id. at p. 262.) The
Chaparkas court’s determination that the jury was free to refrain from awarding damages
does not suggest that a nonsuit is appropriate in the matter before us.
       Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1384-1387 is also
distinguishable. The plaintiffs were owners and renters of certain residential property
who brought a toxic tort action against various defendants for personal injuries and
property damage as a result of the development of the property on a hazardous waste site.
(Id. at p. 1371.) Under these circumstances, the Court of Appeal agreed with the trial
court’s decision that certain plaintiffs had to establish physical injury under a standard of
reasonable medical probability based on expert testimony. However, the issue in Cottle
was causation, not damages. The court stated: “In order to recover damages for physical
injury, petitioners would need to introduce evidence that to a degree of reasonable
medical probability, their injuries had been caused by exposure to chemicals.” (Id. at p.
1385.) Here, in contrast to Cottle, expert testimony stating that the punch to the solar
plexus caused the alleged pain that immediately ensued is unnecessary.
       Miller v. San Diego Gas & Electric Co. (1963) 212 Cal.App.2d 555 (Miller)
likewise does not support James’s position that Sam did not make out a prima facie case
of battery. The case involved alleged injuries arising from an electric shock which
occurred due to the defendant’s negligence. The plaintiff testified as to extensive injuries
and provided evidence that her total medical bills amounted to $1,133.18. (Id. at p. 557.)
The jury returned a verdict in her favor, and awarded her damages of exactly $1,133.18.
The plaintiff’s main contention on appeal was that the jury’s verdict was inadequate.
(Ibid.) The court disagreed, noting that “there was a substantial conflict as to whether
plaintiff received any substantial injury.” (Id. at p. 560.) Thus, it was “entirely probable


                                             31
that the jury felt that although plaintiff was entitled to no more than nominal damages, the
kindest disposition of the case was to award her an amount at least equivalent to her
medical bills.” (Ibid.) Again, the case does not involve nonsuit, but affirms a jury’s right
to decide the appropriate amount of damages.
        Barouh v. Haberman (1994) 26 Cal.App.4th 40, was also an appeal from a jury
trial. There, the jury found by a nine-to-three majority that the defendant did not commit
battery. (Id. at p. 42). There was substantial conflict in the evidence as to whether the
touching that occurred was a hard blow or a “‘love tap’” between friends. (Id. at pp. 43-
44). While the Court of Appeal found that substantial evidence supported the jury’s
verdict, it reversed the matter due to a jury instruction which defined a battery as “‘any
intentional, unlawful and harmful contact by one person with the person of another.’”
(Id. at p. 44, fn. 1.) The court held that the term “‘unlawful’” was misleading and
resulted in a miscarriage of justice. (Id. at pp. 45-46.)
        Finally, McChristian v. Popkin (1946) 75 Cal.App.2d 249 was an appeal from a
jury trial which resulted in a verdict in favor of the plaintiff for $10,000. In addressing
the defendants’ contention that the verdict was not supported by the evidence, the Court
of Appeal stated: “‘It is the province of the jury and then of the trial court upon motion
for new trial, to determine and fix the amount of damages awarded a litigant.’” (Id. at p.
263.)
        All of the above cases discussed by the parties suggest that a determination as to
whether the plaintiff is entitled to damages lies with the jury. None suggest that Sam’s
testimony that James’s alleged punch “hurt” was insufficient to permit a jury to
determine whether Sam was entitled to damages.
        In Fairfield v. American Photography Equipment Co. (1955) 138 Cal.App.2d 82, a
judgment of nonsuit was granted on the plaintiff’s action for unauthorized use of his
name on the ground that there was no proof of damages. The appellate court reversed,
stating: “[i]t is error to grant a motion for judgment of nonsuit if the plaintiff is entitled to
any relief.” (Id. at p. 85.) The court explained, “In a case of this character there can be
no direct evidence of the amount of damages sustained, nor the amount of money which


                                               32
will compensate for the injury. The measure of damages therefore is for the trier of fact,
and in assessing such damages he is accorded a wide and elastic discretion. [Citation.]”
(Id. at p. 88.) Here, as in Fairfield, there is no direct evidence of the amount of damages
sustained or the amount of money that would compensate Sam for his alleged injury.
Under the circumstances, nonsuit is improper. Instead, it is up to the jury to determine
the correct measure of damages.
       Similarly, in Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990
(Scofield), the Court of Appeal discussed a cause of action for false imprisonment where
there was no evidence of physical harm to the two children who were victims of the false
imprisonment. In concluding that physical harm was not a necessary element of the tort,
the Court of Appeal discussed the right of a plaintiff to bring the case to a jury where the
defendant has incurred a technical liability, even where no damages are shown. (Id. at
pp. 1007-1008.) The court described false imprisonment as a “‘dignitary tort,’” designed
for recovery when an individual knows of the dignitary tort or is harmed by it. The court
stated, “In view of the nature of the interest protected, it is appropriate a cause of action
may be brought even where the damage is purely nominal.” (Id. at p. 1008.) The court
cited Civil Code section 3360, which provides: “When a breach of duty has caused no
appreciable detriment to the party affected, he may yet recover nominal damages.” The
court pointed out that the advantages of an award of nominal damages -- other than
psychological -- are: (1) the plaintiff is entitled to costs; and (2) the plaintiff may be
entitled to punitive damages. (Id. at pp. 1007-1008.) Nominal damages are also
available for battery. (Keister v. O’Neil (1943) 59 Cal.App.2d 428, 435.) Here, as in
Scofield, a technical battery provides the foundation for an award of nominal damages.13


13      In supplemental briefing, James has cited Maher v. Wilson (1903) 139 Cal. 514.
Like Scofield, Maher was an action for false imprisonment. The plaintiff had been
wrongfully arrested and detained for an hour and a quarter. He had no employment at the
time and therefore did not lose wages or time by his absence. The jury awarded him
$1,000 on his claim for false imprisonment, and the defendants brought a motion for new
trial, which was denied upon the plaintiff’s agreement to take only half of the jury’s
award. The Supreme Court concluded that the motion should have been granted because

                                              33
       James admits that Sam might have been entitled to nominal damages if his case
went to the jury. He argues that an erroneous failure to award nominal damages is not
grounds for reversing this judgment. However, the cases James cites are distinguishable.
Two are appeals taken after a jury chose not to award damages. (Chaparkas, supra, 178
Cal.App.2d at p. 259; Keister v. O’Neil, supra, 59 Cal.App.2d at p. 435.) The third is a
case where a default was entered and the trial court declined to award damages. (Liljefelt
v. Blum (1917) 33 Cal.App. 721.) In none of these cases was the issue of damages taken
from the jury. Instead, the fact finders chose not to award damages. The cases do not
address the question of whether a nonsuit is properly granted on a cause of action for
battery where the only evidence of damages is pain. Here, the fact finder was not given
the opportunity to evaluate the evidence and decide whether any amount of damages was
appropriate. Under the circumstances, reversal is warranted for a factual determination of
whether damages should be awarded in this case.
       Similarly, and contrary to James’s arguments, it is for the jury to determine
whether punitive damages are warranted based on the evidence. We reject James’s
argument that no reasonable jury could find it highly probable that James was intent on
hurting Sam. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928 [in determining
award of punitive damages, jury must consider nature of defendant’s acts; amount of
compensatory damages awarded; and wealth of the particular defendant].)
II. Motion for summary adjudication
       James filed a motion for summary adjudication of Sam’s intentional infliction of
emotional distress (IIED) claim against him as well as adjudication of the emotional
distress damages component of Sam’s battery claim against him. James argued that an
individual cannot recover damages for emotional distress unless it is so “severe or


there was no evidence that the plaintiff sustained any actual damage from his brief false
imprisonment. However, the high court noted that the defendants had “incurred a
technical liability, entitling the plaintiff to nominal damages.” (Maher, supra, at p. 520.)
The case does not convince us that it is appropriate to remove from the jury the question
of damages in situations where, as here, a plaintiff has testified to physical pain resulting
from an alleged battery.

                                             34
extreme” that “‘“‘no reasonable [person] in civilized society should be expected to
endure it.’”’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 (Hughes).)
James argued that even accepting Sam’s allegations of emotional distress as true, they fall
far short of what the Supreme Court required in Hughes. In addition, James pointed out,
in the prior proceedings involving Lynne’s anti-SLAPP motion, Sam attested that his
distress was due to the negative publicity he received from Lynne’s court declaration and
book. James claimed that even if Sam did suffer severe or extreme emotional distress, he
should be estopped from doing so because he stated in a prior declaration that his
emotional distress arose from Lynne’s actions, not James’s actions, and he obtained a
favorable ruling from the court based on that declaration.
       The trial court granted the motion for summary adjudication on Sam’s fourth
cause of action for intentional infliction of emotional distress. The court also granted
summary adjudication as to Sam’s “allegation and claim for damages for emotional
distress resulting from the battery of January 29, 2008.”
       The trial court found that Sam did not set forth sufficient evidence of damages to
support his claim for IIED. Sam’s statement that he suffered “‘terror . . . agoraphobia,
and an enduring fear of being hunted and killed by James Parnell’” was insufficient
because this “materially and substantially contradicts his previous deposition testimony,
in which he clearly testified that his emotional distress was limited to anxiety, insomnia,
and fear from the threats made by members of the public as a result of publicity about
February 1, 2008, TRO application and/or Lynne Spears’s book.” The court stated that
Sam is bound by this testimony, and may not raise a triable issue by contradicting it now.
In addition, Sam obtained judicial relief when the court acted in reliance on that
declaration, therefore Sam was judicially estopped from claiming that he suffered
extreme emotional distress prior to the publication of Lynne’s book in September 2008.
       As to the emotional distress component of the battery claim, the court found that
judicial estoppel applied due to the prior conflicting testimony.




                                             35
       A. Standard of review
       The standard of review for an order granting or denying a motion for summary
judgment or adjudication is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 860 (Aguilar).) The trial court’s stated reasons for granting summary relief are not
binding on the reviewing court, which reviews the trial court’s ruling, not its rationale.
(Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
       A party moving for summary adjudication “bears the burden of persuasion that
there is no triable issue of material fact and that he is entitled to judgment as a matter of
law.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) “There is a triable issue of
material fact if, and only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Ibid., fn. omitted.) “A defendant bears the burden of
persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be
established,’ or that ‘there is a complete defense’ thereto. [Citation.]” (Ibid.)
       Generally, “the party moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable issue of
material fact; if he carries his burden of production, he causes a shift, and the opposing
party is then subjected to a burden of production of his own to make a prima facie
showing of the existence of a triable issue of material fact. . . . A prima facie showing is
one that is sufficient to support the position of the party in question. [Citation.]”
(Aguilar, supra, 25 Cal.4th at pp. 850-851, fn. omitted.)
       B. IIED
              1. James’s burden: nonexistence of triable issue of material fact
       In support of his motion, James filed a separate statement of undisputed facts. In
it, he included the following facts: “As a result of the media reports regarding the TRO
and declaration filed in support of the application, [Sam] began receiving insults and
threats from Britney’s fans.” “Plaintiff was not harassed in public until after reports of
the contents of Lynne Spears’s judicial declaration (in support of the application for the
TRO) were published or otherwise made public.”


                                              36
       James admitted that Sam testified in his deposition that his “distress injuries are
insomnia, anxiety, and fear of being in public.” However, citing Sam’s deposition, he
also included as an undisputed fact: “Plaintiff attributes his fear of being in public to
publication in the press and on the internet of the statements made about him in the
February 2008 judicial (TRO) proceedings.”
       James referred to Sam’s declaration filed in opposition to Lynne’s anti-SLAPP
motion. James provided the following undisputed fact: “Plaintiff stated under penalty of
perjury that in the months following the issuance of the February 2008 TRO against him,
he lived a ‘normal, quiet and private life, far away from the press and media . . . and free
from public scrutiny, hatred, contempt, ridicule and obloquy.” In addition, “[i]n his July
2009 Declaration, [Sam] told the Court that the public threats and his difficulty sleeping
did not start until after Lynne Spears published her book in September 2008.” Sam
obtained a favorable ruling on the anti-SLAPP motion based, in part, on his declaration.
       James’s motion sought to do two things: first, to show that Sam’s claims of
distress were insufficiently severe to withstand summary judgment; and second, to
undermine the causation element of Sam’s alleged emotional distress and show that Sam
had already admitted that such emotional distress was a result of a different event: the
publication of Lynne’s allegations against him.
              2. Sam’s burden: triable issue of material fact as to emotional distress
       In opposition to James’s motion, Sam filed his own separate statement. He
stipulated to some of the undisputed facts listed in James’s separate statement, but
changed the wording in his admissions. For example, instead of admitting that he “was
not harassed in public until after” Lynne’s declaration in support of the TRO was made
public, he stated: “The entire [T]RO application was leaked . . . . Thereafter, Plaintiff
was harassed in public . . . .”
       Sam disputed the alleged fact that, in his 2009 declaration, he “told the Court that
the public threats and his difficulty sleeping did not start until after Lynne Spears
published her book in September 2008.” Instead, he stated that his first bout of insomnia
came after James’s January 2008 threats and assault. However, his “difficulty sleeping


                                             37
was aggravated by the wave of harassment and death threats following the leak of the
[T]RO application to the press.” The harassment and threats died down until publication
of Lynne’s book and her book tour, at which time the threats and harassment spiked.
       Sam also disputed James’s statement that Sam “attributes his fear of being in
public to publication in the press and on the internet of the statements made about him in
the February 2008 judicial (TRO) proceedings.” Sam stated that his agoraphobia started
with the threats and assaults from James. It was then aggravated by the public
harassment and death threats he received after publication of Lynne’s allegations against
him.
       In his July 2009 declaration, Sam’s precise words were as follows:
               “As a result of the Book, and the public scorn I have been subjected
       to as a result thereof, I am constantly in fear for my life and safety and the
       life and safety of my friends and family. I have been subjected to cruel and
       unusual criticism, name calling and racial slurs. As a result of the
       foregoing, I am also unable to get a good night’s sleep and have been
       forced to seek counseling to help me cope with these issues.”

       However, Sam also testified in his November 9, 2011 deposition that he suffered
from a fear of going out in public after he was threatened by James on January 28, 2008,
the day before the alleged battery. When asked, “What else is it that you attribute to your
fear of going out in public?” Sam replied, “Everything starting from the menacing texts
that your client sent me” to “the battery on the 29th.”
              3. Analysis
       To state a cause of action for IIED, a plaintiff must show: (1) outrageous conduct
by the defendant; (2) the defendant’s intent to cause or reckless disregard of the
probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme
emotional distress; and (4) actual and proximate causation of the emotional distress by
the defendant’s outrageous conduct. (Johnson v. Ralphs Grocery Co. (2012) 204
Cal.App.4th 1097, 1108.)
       There are two distinct issues before us. The first concerns the third element of a
claim for IIED: whether Sam suffered severe or extreme emotional distress sufficient to


                                             38
survive summary judgment on this cause of action. The second concerns the fourth
element: whether Sam is judicially estopped from claiming that his emotional distress
began after the incident with James in late January 2008, due to his prior sworn statement
that his emotional distress was caused by the subsequent publication of Lynne’s
statements in the TRO proceeding and in her book.
       In granting James’s motion for summary adjudication, the trial court held that Sam
is “judicially estopped from claiming that he suffered severe or extreme emotional
distress prior to the publication of Lynne Spears’s book in September 2008.” Thus, the
trial court was focused on the fourth element of the cause of action for IIED: causation.
The trial court’s stated reasons for granting summary relief are not binding on the
reviewing court, which reviews the trial court’s ruling, not its rationale. (Kids’ Universe
v. In2Labs, supra, 95 Cal.App.4th at p. 878.)
       As set forth below, we find that the evidence before the court at the summary
judgment stage did not meet the standard set forth by the Supreme Court requiring
“‘“‘emotional distress of such substantial quality or enduring quality that no reasonable
[person] in civilized society should be expected to endure it.’”’ [Citation.]” (Hughes,
supra, 46 Cal.4th at p. 1051.) Because we find that Sam’s evidence of emotional distress
was insufficient to create a triable issue of fact as to this element of his IIED claim, we
need not reach the issue of causation.
       The Supreme Court has set a high bar for emotional distress damages. In Hughes,
the high court discussed a claim of IIED brought by the guardian of a beneficiary of a
trust against the trustee of the trust. The guardian alleged that the trustee made sexual
comments and sexual advances towards her, and that this behavior caused emotional
distress. (Hughes, supra, 46 Cal.4th at pp. 1040-1041.) The trial court granted summary
judgment on the plaintiff’s IIED cause of action, and the Supreme Court agreed that
summary judgment was properly granted on this issue. The Supreme Court held that the
trustee’s conduct fell far short of conduct that is so outrageous that it exceeds the bounds
of what is normally tolerated in a civilized society. In addition, the plaintiff failed to
provide evidence that she suffered extreme emotional distress.


                                              39
       The high court explained that in order to avoid summary judgment on a claim of
IIED, the plaintiff must provide evidence of “‘“‘emotional distress of such substantial
quality or enduring quality that no reasonable [person] in civilized society should be
expected to endure it.’”’ [Citation.]” (Hughes, supra, 46 Cal.4th at p. 1051.) “Liability
for intentional infliction of emotional distress ‘“does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.” [Citation.]’
[Citations.]” (Ibid.) The court concluded that the plaintiff’s assertions that she “suffered
discomfort, worry, anxiety, upset stomach, concern, and agitation as a result of
defendant’s comments” did not constitute emotional distress of sufficient substantial or
enduring quality to survive summary judgment. (Ibid.)
       In Wong v. Jing (2010) 189 Cal.App.4th 1354 (Wong), the Court of Appeal
addressed a case involving allegedly false assertions posted on Yelp that criticized the
dental services provided by the plaintiff dentist to the defendant’s young son. (Id. at p.
1359.) The plaintiff asserted causes of action for libel and negligent and intentional
infliction of emotional distress. (Id. at p. 1360.) In response, the defendants filed an anti-
SLAPP motion. In discussing whether plaintiff had established a probability of
prevailing on her IIED claim, the court discussed the requirement of severe emotional
suffering. It explained:
               “Wong alleged in her complaint that the posting caused her to suffer
       ‘severe emotional damage.’ However, in her declaration, she stated only
       that the review ‘was very emotionally upsetting to me, and has caused me
       to lose sleep, have stomach upset and generalized anxiety.’

              “This minimal showing does not reflect emotional distress that was
       any more severe, lasting, or enduring than that shown in connection with
       the summary judgment motion in Hughes, and we reach the same
       conclusion reached by our Supreme Court. Wong’s alleged emotional
       reaction to being professionally criticized in a Yelp review, however
       unjustified or defamatory that criticism might have been, does not
       constitute the sort of severe emotional distress of such lasting and enduring
       quality that no reasonable person should be expected to endure.
       [Citation.]”

(Wong, supra, 189 Cal.App.4th at p. 1377.)


                                              40
       Under the case law discussed above, in order to survive summary judgment, Sam
had to provide evidence of distress more severe than anxiety, loss of sleep, and general
agitation. He did not. In his deposition, Sam testified that his emotional distress was
limited to “insomnia, anxiety, [and] fear of going out in public.”14 In addition, as James
points out, Sam swore under penalty of perjury that he lived a “normal” life until the
publication of Lynne’s book in September 2008. Emotional distress is only actionable if
it presents symptoms which interfere significantly with a “normal” life. Having testified
that his life was normal in the months following the alleged battery and up until the
publication of Lynne’s book, Sam cannot now create a triable issue of fact by
contradicting himself. (Thompson v. Williams (1989) 211 Cal.App.3d 566, 574, citing
D’Amico, supra, 11 Cal.3d 1 [“The assertion of facts contrary to prior testimony does not
constitute ‘“substantial evidence of the existence of a triable issue of fact”’”].)
       We conclude that the evidence of Sam’s alleged emotional reaction to the battery
does not show severe or extreme emotional distress of such lasting and enduring quality
that no reasonable person should be expected to endure it. (Wong, supra, 189
Cal.App.4th at p. 1377.) Sam failed to state a cause of action for IIED, and summary
adjudication was properly granted on this cause of action.
       C. Emotional distress component of battery claim
       In addition to granting summary adjudication of Sam’s IIED claim, the trial court
granted summary adjudication of the emotional distress damages component of Sam’s
battery claim. On appeal, Sam argues that this portion of James’s motion for summary
adjudication was procedurally defective. Sam recognizes that former Code of Civil




14     Specifically, Sam testified that these were the only symptoms of emotional distress
that he could recall at that time. However, if there were any additional symptoms of
Sam’s alleged emotional distress which were sufficiently severe and enduring to
withstand summary judgment, Sam should have testified to those symptoms at the time of
his deposition. It logically follows that any symptom of emotional distress of substantial
and enduring quality is one that is not easily forgotten.


                                              41
Procedure section 437c, subdivision (s) (section 437c),15 permits summary adjudication
of a legal issue or claim for damages that does not completely dispose of a cause of
action. (Former § 437c, subd. (s)(1).) However, Sam argues, use of former section 437c,
subdivision (s) requires adherence to certain specified procedures, none of which
happened here. (Former § 437c, subd. (s)(1)-(6).)
       James argues that, having failed to raise this issue in the trial court, Sam has
forfeited his right to make this argument on appeal. We agree.
       Sam admits that an appellate court will ordinarily not consider procedural defects
unless the objecting party first presented the issue to the trial court. (Doers v. Golden
Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [“‘An appellate court will not
ordinarily consider procedural defects . . . where an objection could have been but was
not presented to the lower court by some appropriate method . . . the explanation is
simply that it is unfair to the trial judge and to the adverse party to take advantage of an
error on appeal when it could easily have been corrected at the trial’”].)
       However, Sam argues that the purpose of the forfeiture rule is not implicated here.
He states, without explanation, that the procedural issue in question was not timely
correctable. Sam cites no case law indicating that the general rule of forfeiture should not
be applied under the circumstances of this case. We therefore find that Sam has forfeited
this issue, and the summary adjudication of the emotional distress component of damages
for Sam’s battery claim is affirmed.
III. Evidentiary rulings
       Sam has raised several evidentiary issues in this appeal: (1) the trial court’s
decision to defer to the probate court order barring the conservators from permitting
Britney to testify in this case; (2) the trial court’s decision to bar discovery of Britney’s




15     (See Stats. 2011, ch. 419, § 4, operative Jan. 1, 2015.)


                                              42
drug tests and exclude them at trial;16 and (3) the trial court’s decision to exclude exhibit
11, a threatening text message from James to Sam.
         We have determined that Sam’s causes of action for breach of contract and battery
must be reversed and remanded for a new trial. In order to provide assistance to the court
on remand, we deem it appropriate to address two of these remaining evidentiary issues.
We will address the trial court’s decision to defer to the probate court’s order precluding
Britney’s testimony because it is relevant to the breach of contract claim. We will also
address the trial court’s decision to exclude exhibit 11, as it is relevant to Sam’s battery
claim.
         A. Exclusion of Britney’s testimony
         Sam filed a motion to compel Britney’s appearance at trial. The conservators filed
objections and a motion to quash based on the orders instructing conservators dated April
27, 2011, and September 24, 2012, filed in the Matter of the Conservatorship of the
Person and Estate of Britney Jean Spears, Los Angeles Superior Court case No.
BP108870. The trial court deferred ruling on the motion until Britney was called as a
witness at trial. On October 30, 2012, Sam called Britney as his final witness. After
Sam’s counsel stated that he had not attempted to have the 2012 probate court order
vacated or modified, the trial court ruled that Britney could not be called as a witness
based upon that order.
         On appeal, Sam argues that every person is presumed competent to testify. While
there are statutory exceptions to this rule, Sam argues, the conservators never made any
showing that Britney was not competent to testify. Sam argues that the trial court’s
decision to defer to the probate court order thus denied Sam his federal due process right
to call a material witness in this proceeding.



16      We decline to address Sam’s contention that the trial court should have permitted
him to present evidence of the results of certain drug tests administered to Britney.
Lynne had accused Sam of drugging Britney, and Sam sought to refute that claim by
introducing the drug test results. Because we affirm the motion for nonsuit as to Sam’s
libel claim, we need not address this evidentiary issue.

                                              43
       We conclude that the trial court erred in deferring to the probate court order
without making its own findings regarding Britney’s ability to testify.17 As discussed
below, none of the authority cited by the conservators supports the proposition that one
department of the superior court has the power to prevent a witness from testifying in
another unrelated matter.
       Both parties cite People v. Riva (2003) 112 Cal.App.4th 981 (Riva), each side
claiming that the case supports its respective position. We find that the case supports the
proposition that, in a separate proceeding, orders of another court of equal authority are
not binding. In Riva, the Second Appellate District addressed the question of whether,
following a mistrial, a new judge assigned to the case may overrule the previous judge’s
pretrial ruling on the defendants’ motion to suppress statements made to the police. The
Riva court concluded that it could. While acknowledging the rule that one trial judge
cannot reconsider and overrule an order of another trial judge in the same proceeding, the
Riva court noted that the Supreme Court has held that “reversal of a judgment on appeal
and remand for a new trial ‘permits [the] renewal and reconsideration of pretrial motions
and objections to the admission of evidence.’” (Id. at p. 991-992, fn. omitted.) The court
concluded that “pretrial rulings on the admissibility of evidence, like rulings on
pleadings, should be reviewable by another judge following a mistrial.” (Id. at p. 992.)
If a judge is not bound by rulings of previous judges following mistrial in the same case,
it logically follows that judges are not bound by rulings of judges in unrelated matters.
       The conservators string cite law suggesting that courts must respect the orders of
other courts that have first assumed jurisdiction of a matter. However, a close look at




17     The trial court’s evaluation of the issue should begin with the Evidence Code.
Evidence Code section 351 states that all relevant evidence is admissible unless it can be
excluded under a specific statute or Constitutional provision. (See also People v. Heard
(2003) 31 Cal.4th 946, 972-973 [“Only relevant evidence is admissible . . . , and all
relevant evidence is admissible unless excluded under the federal or California
Constitution or by statute,” italics added].) A court order is therefore insufficient to
render the evidence inadmissible.

                                             44
those cases reveals that they are distinguishable because they all involve judges
considering prior rulings in the same matter.
       Williams v. Superior Court (1939) 14 Cal.2d 656, involved a court reporter. The
petitioner took an appeal from an adverse judgment and came to an agreement with the
court reporter to provide the record for her case to the Court of Appeal. When the
reporter did not do so, the petitioner brought the matter to the attention of the presiding
judge of the superior court. The presiding judge, after investigating the matter, directed
that the issue be handled by the judge of the order to show cause department (department
34). (Id. at p. 660.) After he was admonished for contempt for failure to comply with an
order issued by department 34, the court reporter filed an ex parte motion in department
12, seeking an order to extend the time to file the transcript under different contractual
terms. Department 12 issued an order declaring the order of department 34 void, among
other things. (Ibid.) Under these circumstances, the Williams court declared “where a
proceeding has been duly assigned for hearing and determination to one department of
the superior court by the presiding judge of said court in conformity with the rules
thereof, and the proceeding so assigned has not been finally disposed of therein or legally
removed therefrom, it is beyond the jurisdictional authority of another department of the
same court to interfere with the exercise of the power of the department to which the
proceeding has been so assigned. [Citation.]” (Id. at p. 662.) The case does not suggest
that the trial court in this matter was bound by an order issued in the guardianship
proceeding. Instead, the trial court in this matter had jurisdiction over all aspects of the
matter before it, and the probate court had no power to interfere.
       In re Alberto (2002) 102 Cal.App.4th 421 (Alberto) was a habeas corpus
proceeding in which the defendant had initially been charged with first degree residential
burglary. The trial judge set bail at $35,000. Later, a grand jury indicted the defendant
on one count of attempted murder and one count of second degree robbery. A second
judge, to whom the matter had been assigned for all purposes, increased the bail to
$1,035,000 based on the belief that the first judge’s bail determination was erroneous.
Under these circumstances, the Second Appellate District held that the second judge


                                              45
erred by increasing bail solely on the ground that it believed the first judge’s ruling was
erroneous. (Id. at p. 423.) The court explained, “the power of one judge to vacate an
order made by another judge is limited. [Citation.]” (Id. at p. 427.) The court stated,
“[f]or one superior court judge, no matter how well intended, even if correct as a matter
of law, to nullify a duly made, erroneous ruling of another superior court judge places the
second judge in the role of a one-judge appellate court.” (Ibid.) In contrast to this matter,
the Alberto case involved a second judge in a single matter overruling an order of a prior
judge in that same matter. The case does not stand for the proposition that the trial court
in this matter was required to submit to an order of the probate court.
       Finally, the conservators rely heavily on Glade v. Glade (1995) 38 Cal.App.4th
1441 (Glade). Carla Jean Glade filed a marital dissolution action in 1993. In 1994, the
trustee of a family trust brought an action against Carla and her husband seeking to
foreclose on a community property residence. The trust brought a summary judgment
motion in the foreclosure proceedings. Carla filed an action in the family law court
seeking an order to stay further prosecution of the foreclosure action. The family law
court stayed the foreclosure proceedings pursuant to Code of Civil Procedure section 526,
subdivision (a)(6), which permits injunctions where the restraint is necessary “to prevent
a multiplicity of judicial proceedings.” The family court also cited In re Marriage of Van
Hook (1983) 147 Cal.App.3d 970, which held that a trial court may grant a preliminary
injunction restraining a judgment creditor of one spouse from executing on community
property involved in a marital dissolution proceeding. When the trustee’s summary
judgment was granted in the foreclosure action, the Court of Appeal reversed, holding
that the summary judgment in the foreclosure action should have been denied. The
Glade court specified, “Given the family law court’s broad jurisdictional authority where
the right to and disposition of community property are concerned, we conclude that . . .
the family law court had priority of jurisdiction here.” (Glade, supra, at p. 1450.)
       Glade is distinguishable from the present matter. First, the family law court in that
matter cited specific legal authority for its decision to enjoin the foreclosure action. The
conservators have presented no such authority for the act of the probate court in


                                             46
attempting to prevent Britney from testifying in this matter. Second, the Glade court
specifically restricted its analysis to situations involving the family law court, where the
court has broad jurisdictional authority over community property. The conservators
present no authority suggesting that the probate court has jurisdiction to restrict testimony
of its wards in separate matters where the ward’s testimony is relevant.
       B. Exclusion of exhibit 11
       Sam claimed that James sent him a text message on December 17, 2007, which
read: “If and when I met u [sic] one thing is going to happen I am going to jail and ur
[sic] going to the hospital.” (Exh. 11 (excluded).)
       The trial court excluded the text message from evidence. Sam’s counsel
represented to the court that the text message was “1 of 25.” The court expressed a desire
to see the text messages that surrounded the text that Sam wanted to enter into evidence.
Sam’s counsel stated: “[W]e don’t have them. Only that text message[] was preserved
from sequence. [Sam] can testify to what was discussed in the . . . text messages leading
up to it.” The court stated, “Well, I believe that even if there were two or even if there
was one that involved the same alleged incident with the same text . . . that I should see
the one before it. Maybe it was they were making a movie.” The court suggested to
Sam’s counsel that he attempt to get copies of the text messages surrounding the one he
sought to enter into evidence. Until then, the court’s position was, under Evidence Code
section 352, if there is “a conversation before and a conversation after, just like a
telephone conversation or any type of conversation in person, you’re not -- you’re taking
it out of context and it could be misunderstood, misread, confusing, take too much time.”
However, the court stated, “if your client finds anything that will help clarify the actions
or the events before and after, I will revisit it.”
       We review a trial court’s ruling on the admission or exclusion of evidence under
Evidence Code section 352 for abuse of discretion. (People v. Cole (2004) 33 Cal.4th
1158, 1195.) “We will not overturn or disturb a trial court’s exercise of its discretion
under [Evidence Code] section 352 in the absence of manifest abuse, upon a finding that



                                                47
its decision was palpably arbitrary, capricious and patently absurd. [Citation.]” (People
v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
       Sam argues that the text message was highly probative and unlikely to cause juror
confusion. It demonstrated James’s malice and intent to harm Sam. Sam argues that
given the high probative value of the exhibit, and the low potential for juror confusion,
the court’s decision to exclude it under Evidence Code section 352 exceeded the bounds
of reason.
       We disagree. The court’s decision is well within the bounds of reason. Contrary
to Sam’s argument, the text message was not the only evidence of James’s malice and
intent to harm Sam. Such malice and intent could be deduced from Sam’s testimony
regarding the events surrounding the alleged battery. Furthermore, we find that the trial
court was reasonable in showing concern that the text message was taken out of context.
Sam’s counsel represented that the message was one of a series of messages going back
and forth between Sam and James. The text message was sent over a month before the
alleged battery took place. There is no way of knowing what prompted the alleged
remarks in the text or whether they had anything to do with the circumstances that led to
the alleged battery over a month later. No abuse of discretion occurred.
                                      DISPOSITION
       The order granting Lynne’s motion for nonsuit on Sam’s cause of action for
defamation is affirmed. The order granting James’s motion for summary adjudication on
the intentional infliction of emotional distress cause of action, and the emotional distress
component of the battery claim, is affirmed. The motion for nonsuit on Sam’s breach of
contract claim against Britney, and the motion for nonsuit on Sam’s battery claim against




                                             48
James, are reversed. Those two claims are remanded for trial. Each side to bear their
own costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                ____________________________, J.
                                                CHAVEZ
We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




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