Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 98AS04024
RAYE, J.Plaintiff JRS Products, Inc. (JRS) and defendant Panasonic Communication Company of North America (Panasonic) again appear before this court on issues arising from a lawsuit brought by JRS, a franchisee of Panasonic, against Panasonic for breach of contract. The trial court granted Panasonic’s motion for a nonsuit, finding JRS could not claim damages based on loss of sales of a “bundled product,” which included a remanufactured all-in-one toner cartridge. JRS appeals, arguing the court failed to articulate the grounds for the nonsuit and erred in removing from the jury’s consideration factual questions concerning the damages suffered by JRS as a result of Panasonic’s breach of contract. We shall affirm the judgment.
Judgment was entered in favor of defendant Panasonic Office Products Company, Division of Panasonic Communications & Systems Company (formerly Panasonic Communications and Systems Company Office Automation Group), a unit of Matsushita Electric Corporation of America (now known as Panasonic Corporation of North America). However, we granted defendant’s application to substitute its new name, Panasonic Communication Company of North America.
FACTUAL AND PROCEDURAL BACKGROUND
Events Leading Up to the Litigation
JRS became a copier dealer for Panasonic in 1989 and a fax machine dealer in 1991. The dealer contract gave Panasonic the right to terminate the agreement without cause with 90 days’ notice and to compete with its dealers. In 1996 JRS sold the copier business and became a “‘dedicated’” fax machine dealer. (JRS Products, Inc. v. Matsushita Electric Corp. (2004) 115 Cal.App.4th 168, 171 (JRS Products).) As a dedicated dealer, JRS sold only a Panafax line of products to numerous business customers. Panasonic’s western region sales manager provided JRS with a boilerplate letter stating JRS was an authorized Panasonic dealer. (Ibid.)
In 1997 JRS explored the idea of selling remanufactured original Panasonic toner cartridges, undercutting the price Panasonic charged for its new toner cartridges. Without Panasonic’s knowledge, JRS included a copy of the authorization letter as part of its solicitation package to potential customers. When Panasonic managers learned about JRS’s activities, they asked JRS to stop using the authorization letter but concealed their plans to terminate JRS as a dealer if it did not cease using the letter. (JRS Products, supra, 115 Cal.App.4th at p. 171.)
Panasonic became concerned that the sale of remanufactured cartridges would cut into profits and adversely impact business. In late 1997 Panasonic made the decision to terminate JRS. However, according to JRS, to obtain approval of the termination, Panasonic managers concealed from higher-ranking Panasonic executives that JRS had not been given a written warning. In 1998 JRS received a letter from Panasonic terminating the dealership in 90 days. The notice gave no reason for the termination. Panasonic internal correspondence listed “‘inactivity & conflicts of business’” as the reason for termination. (JRS Products, supra, 115 Cal.App.4th at p. 172.)It also stated, “‘They are recharging Panasonic toner cartridges and selling them to Panasonic dealers incorporating a letter to solicit business that includes the Panasonic logo. Written efforts were made to resolve the issue but the customer did not cease.’” (Ibid.) JRS’s efforts to persuade Panasonic to reinstate the dealership proved unsuccessful. (Ibid.)
The First Trial
JRS’s first amended complaint alleged numerous causes of action, including claims for unfair competition, breach of contract, and tortious interference with prospective economic advantage. The trial court granted Panasonic’s motion for summary adjudication of all but the cause of action for interference with prospective economic advantage. (JRS Products, supra, 115 Cal.App.4th at p. 172.)
The parties agreed JRS would dismiss this cause of action without prejudice to allow JRS to appeal the rulings as to the other causes of action. JRS appealed and we dismissed the appeal as an appeal from a nonfinal judgment. (JRS Products, supra, 115 Cal.App.4th at p. 172.)
The litigation proceeded to trial on the tortious interference claim. The jury awarded JRS compensatory damages of $720,620 and punitive damages of $2,500,000. Panasonic appealed the judgment on the tort claim; JRS cross-appealed the dismissal of the contract claim. (JRS Products, supra, 115 Cal.App.4th at p. 173.)
In JRS Products we addressed both appeals. We vacated the tortious interference verdict, holding that the termination of a dealer agreement, even though wrongful, does not give rise to a tortious interference claim. We also reversed the dismissal of the contract claim and remanded the case for trial. (JRS Products, supra, 115 Cal.App.4th at pp. 183-184.)
The Second Trial
Prior to the second trial, Panasonic conceded that JRS’s termination constituted a breach of contract. The second trial addressed only the issue of damages recoverable as a consequence of the breach.
Prior to trial, Panasonic brought a motion in limine seeking to bar JRS from introducing evidence of alleged lost sales of remanufactured toner cartridges. Panasonic also brought a motion in limine to exclude evidence of damages from the loss of prospective sales of fax machines and multi-function machines (copy machines that also fax and scan documents). The court denied both motions on the ground there were factual issues to be resolved at trial.
At trial, the evidence fleshed out the relationship between the parties and the products JRS marketed. As noted, JRS became a Panasonic copier dealer in 1989 and a fax machine dealer in 1991. Under a dealer agreement entered into by JRS in August 1991 and accepted by Panasonic in October 1991, JRS became an authorized Panasonic dealer of products specified in exhibit A of the agreement. The agreement gave Panasonic the right to amend the products subject to the agreement at any time.
Panasonic developed new products and periodically revised exhibit A to reflect the additional products. Each new exhibit A stated: “Note: The effective date of this supersedes all prior dated product and quota authorizations.”
As a dealer, JRS had three main sources of profit from sales of equipment under the agreement: (1) sales of Panasonic equipment; (2) service of Panasonic equipment; and (3) sales of supplies for Panasonic equipment. Of these three profit sources, the sale of toner cartridges provided the greatest amount of revenue. JRS sold both Panasonic and non-Panasonic supplies to its customers.
In 1990 Panasonic manufactured its first laser fax machine. The machine used toner that was poured into a toner chamber. In 1991 Panasonic developed a machine that used a toner cartridge and a separate imaging drum. In 1993 Panasonic introduced an “all-in-one” toner cartridge that combined the toner and the drum in a single unit. In 1996 JRS sold its copier business and became a Panasonic fax-only dealer.
In the fall of 1997 JRS decided to remanufacture all-in-one toner cartridges. The endeavor would take place in two phases. In phase one, JRS would test the product in the marketplace by selling remanufactured cartridges to other Panasonic fax dealers. In phase two, JRS would enter the market by selling remanufactured cartridges to end users, a group that included existing customers. Due to Panasonic’s termination of JRS as a dealer effective July 1998, phase two was never implemented.
Under phase one, JRS sold 370 cartridges in the first quarter of 1998 and 950 cartridges in the second quarter.
At trial, JRS alleged Panasonic’s termination of its dealership damaged JRS in excess of $4 million. The damages included lost revenues from sales and service of fax machines, and lost sales of remanufactured toner cartridges.
JRS’s financial statements revealed JRS suffered large losses during the period from 1991 through 1997. JRS based its damage claim on the projection of future sales of a new “bundle” of three combined products: Panasonic fax machines, JRS’s authorized service, and JRS’s remanufactured all-in-one toner cartridges. JRS asserted that this bundle of products would have given it a great competitive advantage over other dealers.
During oral argument on Panasonic’s motions in limine to limit JRS’s evidence of damages, the trial court stated it was JRS’s burden to lay a foundation that remanufactured cartridges were part of the dealer agreement. JRS argued the evidence would show Panasonic encouraged dealers to sell remanufactured cartridges and a factual issue existed as to the scope of the dealer agreement. The court found an evidentiary issue and, as noted, denied the motions.
During trial, the court stated that if JRS could not tie its remanufacture and sale of used cartridges to the dealer agreement, then JRS would not be able to prove damages related to the alleged lost sales of such cartridges. The court observed that Panasonic might move for a nonsuit at the conclusion of JRS’s case.
On the last day of trial, outside the jury’s presence, the trial court again addressed the damage issue. The court expressed concern that JRS’s damage claim was inextricably tied to JRS’s claim that it was entitled to damages for lost sales of remanufactured cartridges as well as lost sales of fax machines and service calls it would have made by reason of its sale of remanufactured cartridges. The court stated that if JRS did not break up its damage calculations but based its claim on the bundled approach, the court doubted JRS could prove damages recoverable under contract law.
The court then summarized the evidence presented at trial, and inquired of JRS whether it would be better for the trial court to rule on the legal issue of damages or wait for a verdict prior to ruling. After further consideration, the trial court stated: “[P]laintiff probably should proceed and finish the case. The verdict will be what it will be. And I’ll make whatever ruling I have to make.”
JRS’s counsel stated JRS had put on all of its evidence regarding the scope of the agreement, and that it would not and could not present evidence of damages that was not based on the bundled concept. The court observed: “[T]hese remanufactured products are not arising out of the dealership agreement. In other words, they’re not contract damages.” JRS proposed to make an offer of proof that it had presented all the evidence on the issue, and to pursue its remedies on appeal. According to JRS, “our damage analysis is based entirely upon the bundled price concept.” According to JRS, it could not segregate its damages because they resulted from the lost profits flowing from its sales of bundled packages of equipment, supplies, and service.
JRS asked the trial court to “please end our misery here. Let us go up on appeal.” The trial court asked Panasonic if it wanted to make a motion for a nonsuit, and asked JRS if it wished to have the court rule on the motion or take it under submission. JRS requested a ruling.
The trial court stated: “I’m prepared at this time to grant the defense motion for a directed verdict.... [¶]... [¶] That will be the order then.” The trial court later changed the order to a nonsuit. Following entry of judgment, JRS filed a timely notice of appeal.
DISCUSSION
Standard of Review
We review de novo the trial court’s grant of a nonsuit. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1458.) We accept as true the evidence most favorable to the plaintiff and disregard any conflicting evidence. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) We will not reverse a judgment of nonsuit if the plaintiff’s evidence raises only speculation or conjecture; we reverse if we find substantial evidence supporting the plaintiff’s claim upon which reasonable minds could differ. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1313.)
Order Granting Panasonic’s Nonsuit
JRS contends the trial court erred in failing to articulate the grounds for the nonsuit in the order granting the nonsuit. According to JRS, this omission prevents us from reviewing the grounds for the nonsuit, meriting reversal.
The order re nonsuit states: “On November 16, 2006, [Panasonic] moved for a nonsuit/directed verdict for the reasons, and in the circumstances, specifically set forth in the trial transcript. (Certified Transcript p.68:25-27.) The Court having heard and considered the evidence presented by [JRS] in the course of the trial, together with [JRS’s] offer of proof as to the additional evidence that it intended to present, as well as the parties’ arguments, both before and during trial, as to the applicable law and [JRS] having urged the Court to rule on [Panasonic’s] motion; [¶] [Panasonic’s] motion for a nonsuit is granted.” The portion of the “certified transcript” cited in the order re nonsuit states: “[Court:] Does the defense wish to make a motion for nonsuit at this point? [¶] [Panasonic]: Yes.”
According to JRS, the order fails to provide details “for the basis of the motion or the grounds upon which the trial court granted the motion.” We disagree.
The trial court and the parties extensively discussed the court’s concern over JRS’s ability to establish damages based on its concept of bundling sales, service, and supplies together. The court fully articulated its concerns in the discussion leading up to the motion. The court invited Panasonic to move for nonsuit, and there is no doubt that the motion reflected the court’s well-articulated view that the JRS damages claim was inextricably tied to the loss of profits from the sale of remanufactured all-in-one toner cartridges and that the sale of remanufactured cartridges could not be tied to the dealer’s agreement. This provides an ample record from which to decide this appeal.
Nonsuit and Measure of Damages
Civil Code section 3300 sets forth the general measure of damages for breach of contract. It provides: “For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” JRS insists that section 3300 should be applied literally and as explained by CACI No. 350: “To recover damages for any harm, [plaintiff] must prove: [¶] 1. That the harm was likely to arise in the ordinary course of events from the breach of the contract; or [¶] 2. That when the contract was made, both parties could have reasonably foreseen the harm as the probable result of the breach.”
According to JRS, by stating the requirements for recovery in the disjunctive, CACI No. 350 provides for recovery “where the plaintiff proves that the harm suffered was foreseeable at the time the contract was entered into or where the harm was likely to arise in the ordinary course of events from the breach, damages flowing there from [sic] are recoverable.” Therefore, under JRS’s interpretation, JRS was entitled to recover all of the damages that would likely or ordinarily be caused by Panasonic’s termination of the franchise, not just damages foreseeable when the agreement was entered into.
This argument reflects a misunderstanding of Civil Code section 3300 and ignores the volumes of case law written since the statute’s enactment in 1872, beginning with Hunt Bros. Co. v. San Lorenzo Water Co. (1906) 150 Cal. 51 (Hunt Bros.), where the court stated: “It is the well-settled general rule of damages for any breach of contract that the damages that can be recovered for a breach are only such as may reasonably be supposed to have been within the contemplation of the parties at the time of the making of the contract, as the probable result of a breach.... This rule does not mean that the parties should actually have contemplated the very consequence that occurred, but simply that the consequence for which compensation is sought, must be such as the parties may be reasonably supposed, in the light of all the facts known, or which should have been known to them, to have considered as likely to follow, in the ordinary course of things, from a breach, and, therefore, to have in effect stipulated against.” (Id. at p. 56.)
The “well-settled general rule” alluded to in Hunt Bros. can be traced to Hadley v. Baxendale (1854) 156 Eng.Rep. 145 (Hadley), itself a case involving a claim for lost profits, in which the court held:
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as would fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damages resulting from the breach of such contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from the breach of contract under these special circumstances so known and communicated.” (Hadley, supra, 156 Eng.Rep. at p. 151.)
“The Hadley rule has long been applied by California courts, which view it as having been incorporated into California Civil Code section 3300’s definition of the damages available for breach of a contract.” (Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist. (2004) 34 Cal.4th 960, 969 (Lewis Jorge).) The rule recognizes two categories of damages: first, damages that “would fairly and reasonably be considered [as] arising naturally” from the breach are covered, but only if the damages “may reasonably be supposed to have been in the contemplation of both parties” (this expresses a rule of proximate causation (arising naturally), subject to an objective standard of foreseeability (reasonably supposed to have been in the contemplation of the parties)), and second, damages made in contemplation of special circumstances that are known to both parties (this expresses a subjective standard of foreseeability). Foreseeability is required for both categories of damages and is measured from the moment the contract is entered into. (Id. at pp. 968-969; 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 871.)
In California, the term “general damages” (sometimes called direct damages) is applied to the first category, and the term “special damages” (sometimes called consequential damages) is applied to the second. “Hadley did not expressly distinguish between general and special damages. But such a distinction flows naturally from that case; hence the rule that a party assumes the risk of special damages liability for unusual losses arising from special circumstances only if it was ‘advised of the facts concerning special harm which might result’ from breach—it is not deemed to have assumed such additional risk, however, simply by entering into the contract. [Citations.]” (Lewis Jorge, supra, 34 Cal.4th at p. 969.) General damages are damages that flow directly and necessarily from a breach of contract, or that are a natural result of the breach. Because they flow from the breach, they are often said to be within the contemplation of the parties, meaning that because their occurrence is sufficiently predictable the parties are deemed to have contemplated them. (Id. at p. 968.)
JRS argues it “should not have been limited to only the damages foreseeable at the time the franchise agreement was entered into.” This may have been true in the previous trial, where the jury awarded JRS compensatory damages of $720,620 and punitive damages of $2,500,000 for tortious interference. However, as the foregoing cases attest, contract damages, unlike damages in tort, do not permit recovery for unanticipated injury. (Lewis Jorge, supra, 34 Cal.4th at pp. 969-970.) JRS also argues that the franchise agreement was later modified, and the damages reasonably foreseeable from a breach of the agreement changed accordingly.
There is no evidence that the damages sought by JRS in the present case were within the reasonable contemplation of the parties when the franchise agreement was executed. Nor is there evidence of either a modification of the franchise agreement or a corresponding alteration of the damages contemplated by the parties.
The parties entered into the agreement in 1991, prior to the development of all-in-one cartridges, which were introduced in 1993. JRS did not begin remanufacturing the all-in-one cartridges until 1997. Therefore, the trial court correctly concluded the sale of all-in-one cartridges, which did not exist when the agreement was signed, could not have been within the reasonable contemplation of the parties in 1991.
JRS argues the subsequent revised product lists issued by Panasonic created new agreements. Therefore, JRS contends, while the remanufactured all-in-one cartridge may not have been within the contemplation of the parties in 1991, they were in later years when the new agreements were made.
As both parties acknowledge, the agreement specifically contemplated that as Panasonic’s product line changed, new products would be added to the product line available for JRS to sell. After the agreement was executed, Panasonic did develop new products and periodically sent JRS revised exhibit A product lists. The new dealer exhibits were signed by both Panasonic and JRS.
Because of these updated product lists, JRS argues, “It was not only foreseeable, but expected by Panasonic, that JRS would and could sell the latest equipment and supplies for that equipment, including ‘all in one cartridges’, to JRS’ Panasonic franchise customers pursuant to the franchise agreement.” The evidence does not support this assertion.
Evidence at trial revealed that the all-in-one cartridge technology was introduced in 1993. Three years later, in 1996, JRS first began to explore the possibility of recycling used cartridges. In the fall of 1997 JRS concluded it could market a remanufactured cartridge. Once the decision was made, JRS embarked on a two-phase marketing strategy: testing the product, and then entering the market to sell the remanufactured cartridges to JRS’s existing customers. In July 1998, before JRS could implement the second phase of marketing the cartridges, Panasonic terminated its dealership.
This sequence of events fails to support JRS’s assertion that from the periodic revisions of the product list, the parties could reasonably anticipate that a breach of the dealer agreement would result in damages to JRS stemming from its inability to sell remanufactured cartridges. At the time Panasonic breached the contract, JRS was testing a product it had never sold.
JRS asserts: “Thus, both at the time [of] the initial franchise agreement and over time as the agreement was modified (through course of conduct or otherwise) [citation], Panasonic was aware of the practice of remanufacturing toner cartridge [sic] and that its dealers were selling Panasonic toner cartridges as well as non-Panasonic remanufactured cartridges to Panasonic customers.” However, the question is not whether Panasonic knew that its dealers were selling off-brand cartridges. The question is: were damages for breach in the form of lost profits from the anticipated sale of remanufactured cartridges, either separately or when bundled with other products or services, within the contemplation of the parties at the time they entered into the agreement; were such damages reasonably foreseeable? A jury could not have properly reached such a conclusion based on the evidence presented.
The remanufactured cartridges are not listed in the original exhibit A or in any of the subsequent revisions. The fact that other dealers were selling the item does not mean it was reasonably foreseeable to the parties that JRS would eventually sell remanufactured cartridges under the dealer agreement.
Moreover, even if we indulge in the assumption that such damages were foreseeable, any effort to calculate the damage to JRS from its inability to sell remanufactured cartridges falls into the realm of speculation. Lost profits to an established business are recoverable if their extent and occurrence can be reasonably ascertained. Courts do not deny such lost profit damages merely because the amount cannot be shown with mathematical precision. However, if a business is new, it is generally improper to award damages for lost profits because the absence of a profit/loss history renders the anticipated profits too speculative to meet the requirement that the damages be reasonably certain. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 882-884 (Kids’ Universe); Resort Video, Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1697-1698 (Resort Video).)
Despite this general rule, loss of prospective profits for a new business may be recovered if the evidence shows with reasonable certainty both their occurrence and extent. Courts have permitted recovery for lost profits from a new business where owners have experience in the business they are seeking to establish, and where the business is in an established market. (Resort Video, supra, 35 Cal.App.4th at p. 1698.) Evidence of lost profits may also be established with reasonable certainty with the aid of expert testimony, economic and financial data, and business records of similar enterprises. (Kids’ Universe, supra, 95 Cal.App.4th at p. 884.)
JRS contends it is a “misnomer” to characterize JRS as a new business. Instead, JRS argues its quest to sell a bundled product that included a remanufactured cartridge “may have been a new marketing approach.” We are not persuaded by JRS’s attempt to label what is clearly a new product, which JRS sought to develop, as a “marketing approach.”
JRS further claims future lost profits from sale of the bundled product including the remanufactured cartridge were not, as a matter of law, inherently speculative. Instead, JRS contends, such lost profits present a question of fact for the jury. But JRS presented no evidence as to profits from which the jury could calculate lost damages resulting from the loss of sales of the remanufactured cartridge. JRS informed the court its damage analysis “is based entirely upon the bundled price concept” and not the track record of the business. JRS sought to prove lost damages based on projections of future sales of a new bundled product dependent upon the inclusion of the remanufactured all-in-one toner cartridge.
An award of lost profits from a new business requires more. In Resort Video, the appellate court found damages from lost anticipated profits from the production of videos speculative. The plaintiff was unable to produce any evidence of “an operating history of this venture or introduce any evidence of operating histories of comparable businesses.” (Resort Video, supra, 35 Cal.App.4th at p. 1699.) Here, JRS provided no evidence of the profit/loss histories of any comparable business.
Instead, JRS argues it established future lost profits with reasonable certainty: “JRS had been selling a bundled type product mix since the inception of its franchise agreement with Panasonic. As the Panasonic equipment evolved so did the toner cartridges giving rise to the remanufacture of toner cartridges which significantly reduced the Panasonic customer’s price per page.” Again, JRS emphasizes the bundled nature of the product, attempting to minimize the fact that its central component, the remanufactured cartridge, was a new, untested product.
In Kids’ Universe the plaintiffs sought lost future profits when their toy store was flooded. The plaintiffs presented evidence that at the time of the flood, they had developed a new Web site to market toys over the Internet. According to the plaintiffs, the flood caused them to lose the opportunity to launch the site at an optimal time, resulting in future lost profits. It provided expert witness testimony, based on projections of sales on the Web site, that the plaintiffs suffered millions of dollars in lost sales. (Kids’ Universe, supra, 95 Cal.App.4th at pp. 874-877.)
The trial court granted summary judgment in the defendants’ favor and the appellate court affirmed. The court found the damages speculative even after considering the plaintiffs’ evidence, which for the purpose of review was considered to be true. The plaintiffs stated they had developed a Web site that would have attracted affluent customers; the plaintiffs were prepared to meet demand and had entered into agreements with manufacturers to ship directly to customers; because of the timing of the Web site launch they would be able to become a leader in Internet toy sales; and based on a comparison with an Internet competitor, the plaintiffs were poised to be equally successful. (Kids’ Universe, supra, 95 Cal.App.4th at pp. 886-887.)
The court noted the evidence sounded substantial “on the surface,” but concluded it did not raise a triable issue as to lost profits. According to the court, the evidence, while suggesting the Web site would have been viable, did not demonstrate to a reasonable certainty that the business would have been profitable. (Kids’ Universe, supra, 95 Cal.App.4th at p. 887.) Although the plaintiffs operated a Web site prior to the flood, the Web site had not been profitable. (Ibid.) The court further noted the plaintiffs “presented no specific economic or financial data, market survey, or analysis based on the business records or operating histories of similar enterprises.” (Id. at p. 888.) The court found the expert testimony as to profitability, which was based on unexplained projected capital values, insufficient to raise a triable issue of fact as to whether the plaintiffs’ Web site would have realized net profits. (Ibid.)
Here, JRS based its claim of lost future profits on the sale of bundled products, including the remanufactured cartridge. Prior to the breach, JRS had not marketed or sold any remanufactured cartridges. JRS did not offer any market surveys or financial data to back up its projections. Instead, JRS based its projections on JRS’s belief that “no one can compete with that bundled offering that we have put together.”
JRS failed to introduce evidence of future lost profits to establish with reasonable certainty both the occurrence and extent of those profits. Therefore, future lost profits based on the lost sales of the remanufactured cartridges as part of the bundled product were speculative, and the trial court did not err in granting a nonsuit in Panasonic’s favor.
DISPOSITION
The judgment is affirmed. Panasonic shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: BLEASE, Acting P. J., SIMS, J.