                                                                             FILED
                           NOT FOR PUBLICATION                                MAY 11 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


HANNIBAL PICTURES, INC., a                      No. 09-56584
California corporation,
                                                D.C. No. 2:06-cv-01814-WDK-
              Plaintiff - Appellee,             VBK

  v.
                                                MEMORANDUM*
SONJA PRODUCTIONS LLC, a
Delaware limited liability company;
SONJA TREMONT-MORGAN, an
individual,

              Defendants - Appellants.


                  Appeal from the United States District Court
                       for the Central District of California
                William D. Keller, Senior District Judge, Presiding

                       Argued and Submitted April 15, 2011
                              Pasadena, California

Before: D.W. NELSON, W. FLETCHER**, and BYBEE, Circuit Judges.



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

         ** After argument, Chief Judge Kozinski recused himself from
participation in this case. Judge W. Fletcher was drawn in his place, has listened to
the arguments, and considered the briefs of the parties.
      After a ten-day trial, a jury returned a verdict against Defendants-Appellants

Sonja Productions LLC and Sonja Tremont-Morgan, finding them liable for breach

of contract, fraudulent inducement, and negligent misrepresentation, and awarding

Plaintiff-Appellee Hannibal Pictures (“Hannibal”) $6,816,294 for past and future

economic losses. Defendants appeal orders from the district court denying motions

for judgment as a matter of law and a new trial or remittitur.

      Defendants argue that under California’s economic loss rule, Hannibal

should not have been permitted to recover under its tort claims. The district court

properly denied this motion. Under California law, tort damages may accompany

contract claims when “the duty that gives rise to tort liability is either completely

independent of the contract or arises from conduct which is both intentional and

intended to harm.” Erlich v. Menezes, 981 P.2d 978, 983 (Cal. 1999). The

California Supreme Court has declined to apply the economic loss rule to fraud and

misrepresentation claims where, as here, one party has lied to the other. See

Robinson Helicopter Co. v. Dana Corp., 102 P.3d 268, 275 (Cal. 2004). Robinson

Helicopter controls this case. Hannibal was not precluded from suing the

defendants for fraud and negligent misrepresentation in addition to breach of

contract.




                                           2
      Nor was the jury’s award of damages excessive. Under California law,

damages for “anticipated profits dependent on future events are allowed where

their nature and occurrence can be shown by evidence of reasonable reliability.”

Kids’ Universe v. In2Labs, 116 Cal. Rptr. 2d 158, 168 (Ct. App. 2002). Such

damages “may be established with reasonable certainty with the aid of expert

testimony, economic and financial data, market surveys and analyses, business

records of similar enterprises, and the like.” Parlour Enters., Inc. v. Kirin Grp.,

Inc., 61 Cal. Rptr. 3d 243, 249 (Ct. App. 2007) (citation omitted). “Expert

testimony alone is a sufficient basis for an award of lost profits . . . when the expert

opinion is supported by tangible evidence with a substantial and sufficient factual

basis rather than by mere speculation and hypothetical situations.” Id. at 250

(citations and internal quotation marks omitted). Hannibal introduced into

evidence preliminary agreements with international distributors that could have

been worth over $6 million and testimony that, had Fast Flash to Bang Time been

completed, Hannibal could have received millions of dollars in sales commissions.

Hannibal also turned down a commitment from a bank to finance the movie.

Accordingly, the jury’s award of damages was supported by sufficient evidence.

See Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007).

      AFFIRMED.


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