Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of Los Angeles County., No. GC027273, C. Edward Simpson, Judge.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup; Richardson & Harman, Kelly G. Richardson, J. Andrew Douglas for Plaintiffs and Appellants.
Buchalter Nemer, Harry W.R. Chamberlain II, Robert M. Dato, Efrat M. Cogan; Garrett & Tully, Stephen J. Tully, Tomas A. Ortiz, Ryan C. Squire for Defendants and Appellants.
BOREN, P.J.
INTRODUCTION
An expert accounting firm’s employee and a client entered a house belonging to the client’s husband, and retrieved business documents that were potentially relevant to community property claims. The Chinese government discovered the entry and taking of documents and then cancelled the husband’s lucrative business arrangement for the supply of holographic laminate material, which had been used in Chinese national identity cards. The husband and his various companies sued the wife and the accounting firm for trespass and conversion, among other claims, and a jury awarded the plaintiffs $3.4 million in lost profit damages.
On appeal, the accounting firm argues that its conduct was protected by the litigation privilege (Civ. Code, § 47, subd. (b)(2)), and that the jury’s verdict was not supported by substantial evidence. We find that the litigation privilege did not apply, as the gravamen of plaintiffs’ action was noncommunicative conduct. With respect to appellants’ substantial evidence argument, we are guided by the long-held rule that we may not substitute our discretion for that of the jurors’. Since the verdict was supported by substantial evidence, we do not reverse.
In a cross-appeal, respondents argue that prejudgment interest on the damages should have been awarded. Respondents’ position is incorrect. The trial court’s denial of prejudgment interest was proper, as the claimed damages were uncertain and not reasonably capable of being made certain.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The complaint
In May 2001, plaintiffs PYA International, Ltd., Associated Suretech Corporation (Suretech), and Paul Yang (Paul) brought suit against Katy Pui-Chu Yang (also known as Katy Chong and other names) (Katy); Zhong Lin; and White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, LLP (White Zuckerman) for conversion, trespass, invasion of privacy, and intentional interference with business relations, among other claims. The complaint stated that that plaintiffs maintained a substantial amount of business documents at an address in Pasadena, 685 East California Boulevard, some of which were “very sensitive” in nature. According to plaintiffs, defendants secretly entered the California Boulevard premises on October 15, 2000, and removed and copied documents stored there, which harmed plaintiffs’ business operations.
A company called O.D.T. International was also originally named as a plaintiff, but was not a party to the judgment.
For ease and clarity of reference, we refer to Paul and Katy by their first names in this opinion, with no disrespect intended. White Zuckerman and Lin are collectively referred to as appellants or the White Zuckerman defendants.
The parties
At the time the complaint was filed, Paul and Katy were going through a divorce. Paul is a native of China, who became a naturalized United States citizen in 1966 and formed various companies. This case was brought on behalf of companies controlled by Paul in addition to Paul himself (respondents). Generally, little distinction was made between the various plaintiffs during the trial court proceedings, and the plaintiffs were often referred to collectively as “Mr. Yang” or “PYA.” (Respondent Suretech previously was known as Paul Yang & Associates and generally called “PYA.” Reflecting the record, one or more respondents may be referred to in this opinion as “Mr. Yang” or “PYA.”)
Katy is a former resident of Hong Kong who moved to the United States after marrying Paul in 1991. White Zuckerman is an accounting and forensic consulting firm which concentrates in providing expert testimony, and Lin is an accountant who was employed by White Zuckerman.
Procedural background
Although the basic facts in the case were relatively simple, it took over seven years from the date of filing to get to trial (with numerous intervening stays). The case was reassigned to different trial court departments several times. In addition, the case was ordered stayed from January 2005 to May 2007 to allow for resolution of the dissolution proceedings between Paul and Katy, which eventually settled.
The case was finally tried to a jury beginning in late October 2008. Several important witnesses were not present for trial, and their testimony was presented by way of deposition transcripts. Among these witnesses was Katy, who apparently moved to China following her divorce from Paul, and who (although she was a defendant) did not participate and was not represented at the trial.
October 15, 2000
Plaintiffs’ case centered around the events of October 15, 2000. In August 2000, Katy was considering filing for divorce, and hired White Zuckerman for forensic accounting services. Due in part to his fluency in Chinese, Lin was assigned to work on Katy’s matter.
Katy was concerned that Paul would hide or destroy documents potentially relevant to her claims for community property. Thus, in the morning of Sunday, October 15, 2000, Katy and Lin, knowing that Paul would not be at the 685 East California Boulevard property, went to the property to retrieve and copy financial records showing income earned by Paul and his companies. Lin was given permission to undertake this project by his superior at White Zuckerman, Jack Zuckerman. Katy showed Lin how to get to the property, and when Lin got there, Katy led him through the open back door, up a set of stairs, and into Paul’s office.
Lin and Katy browsed and removed documents from several filing cabinets. They took the documents off the property and to a local copy center, where they copied about three to four boxes worth of documents, with Lin deciding which ones to copy. When they returned to the house later that day, it was locked, and Katy opened it with a key. They returned the original documents to where they had found them, and Lin took the copies to the White Zuckerman offices, where the document details were entered into a database.
Shortly after Katy filed for divorce in February 2001, Paul first learned about Katy and Lin’s October 15, 2000 trip to the property. He was told by a handyman who had been at the property when Katy and Lin arrived that day.
Katy’s access to the California Boulevard property
The issue of whether Katy had regular access to the California Boulevard property was a primary matter of dispute. Paul had acquired the California Boulevard property in approximately 1975, well before his marriage to Katy. The house on the property-which, when viewed from the outside, appeared to be a normal residence-served as the business offices for Paul’s various companies.
Paul testified that he decided who could have keys to the house. According to Paul, in the year 2000, only he, his sister Jean, and his bookkeeper, Rouben Derovanessian, were permitted to have keys. Katy was not. Paul testified that he was the only one with a key to his personal office in the house. He also testified that Katy only visited the property on a couple occasions during their marriage and did not have an office or work space in the house. He further stated that, though Katy would travel with him on business and attend social dinners, she never did any substantive work for any of his businesses.
Derovanessian testified that he had an office in the house where he worked for 19 years, and he never saw Katy with a key to the house and never saw her enter the house. He said Katy never worked for any of Paul’s businesses. He also testified that only Paul had the key to Paul’s personal office in the house, where Paul kept most of his confidential business documents.
Katy, on the other hand, testified that Paul gave her a key and allowed her free access to the house. She also testified that she was an employee of Paul’s companies and performed numerous tasks for the companies, and would go to the house several times a week to work. She further stated that on October 15, 2000, she and Lin retrieved the documents from filing cabinets which were located in an unlocked room in the house.
The business relationship
Plaintiffs’ complaint obliquely referred to “business operations” that were harmed by the “break in” of October 15, 2000. The complaint stated that the California Boulevard address housed documents constituting or relevant to “security-sensitive materials and services for the People’s Republic of China, ” and that the “break in” was a possible breach of Chinese national security. These details were developed more thoroughly as the case progressed.
Paul testified that for many years he attempted to obtain contracts to assist with the production of China’s national identity cards. In the early to mid-1980’s, he sold camera equipment to Chinese authorities for use in making relatively simple identity cards. His contact with the Chinese government was a government official named Qiu Xuexin.
In approximately 1993, well after Paul’s initial identity card-related business had ended, Paul was approached by a friend from Hong Kong, David Woo, who discussed working together to produce components for the next generation of Chinese identity cards. Woo had a company in Hong Kong called High Security International (HSI). Paul testified he agreed to provide assistance by finding a responsible source of holographic material suitable for identity cards. Paul was granted a letter of authorization from the First Research Institute of the Chinese Ministry of Public Security relevant to this work, which he used to introduce himself to makers of holographic security material.
Paul located a suitable American maker of the material, American Banknote. Working with HSI and Paul’s contact in the Chinese government, Qiu (who was then the director of the First Research Institute’s identity documents department), Paul proposed to the First Research Institute that it begin issuing new identity cards with holographic laminate manufactured by American Banknote, and this proposal was eventually implemented by the Chinese government.
Paul testified that in the usual course of the arrangement, the Chinese government would first advise HSI that it had set up a letter of credit, subject to terms relating to delivery of the holographic laminate. HSI would then notify Paul of the order, and Paul would advise American Banknote to start production of the order. Once the rolls of laminate were ready, Paul would arrange and pay for shipment to China, prepare the export documentation, and notify the Chinese government when and where to expect the shipment. After the shipment was complete, HSI would cash the letter of credit, Paul would issue invoices to HSI for payment, and American Banknote would issue invoices to Paul for the cost of the laminate.
No written agreement was produced that laid out the entirety of this arrangement. However, checks and invoices from plaintiffs and invoices from American Banknote were produced that evidenced large-scale production and shipments to China of the holographic material.
Woo of HSI testified (via deposition by written questions) that HSI and PYA had an agreement for PYA to act as HSI’s agent in California and be a subcontract supplier of the holographic laminate. Woo also testified that HSI had a contract with the First Research Institute. Qiu, the Chinese government official, testified (by deposition, through an interpreter) that he worked with Paul to develop the hologram component of the laminate, and that HSI supplied the holographic laminate to the Chinese government. John Albee, a former vice president of American Banknote, testified that American Banknote produced the holographic laminate for Paul’s companies and packaged it for shipment to China. He further testified that American Banknote’s main contact in the Chinese government for technology and specification issues with the laminate was Qiu.
The termination of the business relationship
Plaintiffs claimed that their business of supplying holographic laminate was terminated after the Chinese government learned of the October 15, 2000 “break-in” at the California Boulevard address. Facts relating to this allegation were testified to by Paul, Woo, and Qiu.
Qiu testified that maintaining the confidentiality of the identity card project, including the specifications of the holographic laminate, was extremely important. He was involved in investigating the security of Paul’s business, which was located at a residential address in a normal-looking house so as not to attract attention. Paul testified that he kept the specifications and other records relating to the identity card project in his locked office at the California Boulevard address.
Qiu testified that there was a plan to continue working with HSI until a new, more advanced type of Chinese identity card was issued. On the other hand, the First Research Institute made no “pledges” that it would continue to work with HSI until the newest generation of cards were issued, and Qiu could not remember any assurances made to HSI that it would be the sole supplier of holographic laminate to the Chinese government.
It was anticipated that, by 2005, a newer generation of identity cards would replace the kind using the holographic laminate supplied by Paul and HSI. In reality, according to Qiu, it was 2008 before the Chinese government started issuing the next generation of identity cards.
Paul testified that, in 2001, his company was scheduled to provide three shipments of holographic laminate to HSI, but was actually requested to supply only one. While he would normally get confirmation that letters of credit were in place for supply of the laminate material, the confirmations stopped after the first 2001 order was shipped. Paul then learned that his company would not be used to supply the second and third shipments.
Woo testified that HSI canceled its contractual relationship with PYA around late 2000 because it was instructed to do so by the First Research Institute, specifically by Qiu. The Chinese government thereafter stopped issuing letters of credit to HSI.
Qiu similarly testified that First Research told HSI to stop working with Paul. Furthermore, the head director of the First Research Institute, Fu Shen, in consultation with Qiu, decided to terminate HSI because there had been “breaches of security” at Paul’s office. Because Paul got his product from American Banknote and HSI got its product from Paul, the “whole route” had a problem. Qiu stated, “The specifics that we knew is that somebody had got into Paul Yang’s office, we don’t know who, and had taken documents away from it.” Qiu further testified, however, that he could not reveal the sources of the “intelligence” that there was a breach of security, and that he did not know what documents were taken.
The Verdict and Posttrial Motions
The profits that plaintiffs allegedly lost because of the terminated holographic laminate business relationship were the only damages claimed at trial. The jury heard opinion testimony from experts for both sides regarding what those lost profits, if any, would have been.
After the presentation of the evidence, plaintiffs’ case against both Katy and the White Zuckerman defendants was submitted to the jury. The jury received a special verdict form which contained 45 questions pertaining to plaintiffs’ claims for (1) invasion of privacy, (2) trespass, (3) conversion, (4) intentional interference with contract, and (5) intentional interference with economic relations.
The jury returned verdicts in favor of defendants on the claims for intentional interference with contract and prospective economic relations, finding defendants did not intend to disrupt the contractual or prospective economic relations between plaintiffs, on the one hand, and the Chinese government or HSI, on the other hand. Plaintiffs were successful on their remaining claims, however, as the jury found Katy and the White Zuckerman defendants liable for invasion of privacy, trespass, and conversion. The jury awarded plaintiffs a total of $3,400,000 in damages. Shortly afterward, judgment in the amount of $3,400,000 was entered in favor of plaintiffs and against all defendants.
It appears that the awarded damages were suffered primarily, if not exclusively, by Securetech, formerly PYA. However, the parties jointly submitted the final special verdict form. The verdict form did not distinguish between the various plaintiffs, and it included the question “what are Plaintiffs’ damages?” While appellants contend that no plaintiff should have been awarded damages, neither side in this appeal has argued that referring to “plaintiffs” collectively in the verdict form was improper.
Following entry of the judgment, plaintiffs filed a motion for new trial, seeking to modify the judgment by adding prejudgment interest pursuant to Civil Code section 3287, subdivision (a). The White Zuckerman defendants moved for judgment notwithstanding the verdict and also for a new trial. All of the posttrial motions were denied.
DISCUSSION
I. The Litigation Privilege Does Not Apply
A. Overview of the Litigation Privilege
The “litigation privilege” is frequently raised by those who have been sued for litigation-related activities. The privilege, which imposes a limitation on liability (not admissibility of evidence), is codified in Civil Code section 47, subdivision (b)(2), which provides that a “publication or broadcast” made as part of a “judicial proceeding” is privileged. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1167-1168; Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)
The litigation privilege has been broadly applied to further its purposes. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955 (Jacob B.).) These purposes are: “to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063 (Rusheen).) Although by its express terms the privilege only protects “publications or broadcasts, ” the doctrine has been held to apply to tortious conduct committed “in connection with the testimonial function.” (Gootee v. Lightner (1990) 224 Cal.App.3d 587, 591.) Further, the privilege is not limited to communications made in trial or other judicial proceedings, but may also “extend to steps taken prior thereto, or afterwards.” (Rusheen, at p. 1057.)
B. The Gravamen of This Case Was Noncommunicative Conduct.
A number of published opinions have found that the litigation privilege shielded retained experts’ litigation-related activities. (See, e.g., Moore v. Conliffe (1994) 7 Cal.4th 634; Ramalingam v. Thompson (2007) 151 Cal.App.4th 491; Carden v. Getzoff (1987) 190 Cal.App.3d 907.) Relying on these and other authority, appellants argue that when Lin entered and took documents from the California Boulevard property he was engaged in privileged “prelitigation” activities, because he was marshalling evidence for Katy’s potential divorce action. Neither side on appeal argues that Lin’s actions were undertaken for any purpose other than gathering evidence. The dispute is whether that purpose alone renders the conduct privileged.
As case law on Civil Code section 47 has developed, a distinct line has been drawn between communicative acts, on the one side, and noncommunicative conduct, on the other. This line has been particularly prominent in opinions issued by our Supreme Court, which guide our analysis here.
In Kimmel v. Goland (1990) 51 Cal.3d 202, 205 (Kimmel), the court was tasked with determining whether the litigation privilege applied to unlawful recording of telephone conversations made in anticipation of litigation. The court found that the litigation privilege did not apply since the plaintiffs alleged they suffered injury from the recording of confidential phone conversations, “not from any ‘publication’ or ‘broadcast’ of the information contained in these conversations.” (Id. at p. 209.) Discussing an earlier case, Ribas v. Clark (1985) 38 Cal.3d 355, 364-365 (Ribas)-in which the court found an attorney could not avoid liability for unlawful eavesdropping on a phone conversation, but was immune from suit for his subsequent testimony regarding the conversation-the Kimmel opinion emphasized “the distinction between injury allegedly arising from communicative acts, i.e., the attorney’s testimony, and injury resulting from noncommunicative conduct, i.e., the invasion of privacy resulting from the attorney’s eavesdropping. This distinction has traditionally served as a threshold issue in determining the applicability of section 47 [subdivision (b)](2).” (Kimmel, at p. 211.)
The distinction between communicative and noncommunicative acts was critical in Kimmel, in which the cross-defendants made a similar argument as the one presented in Ribas (and by appellants here)-that because the recordings were made for purposes of gathering evidence, the conduct should be protected. The Supreme Court rejected this argument, explaining “an extension of section 47(2) to unlawful conduct undertaken to obtain evidence in anticipation of litigation, would lead to unacceptable consequences. Suppose, a prospective defendant kept important documents at home. If a prospective plaintiff, in anticipation of litigation, burglarized defendant’s premises in order to obtain evidence, plaintiffs here would apparently apply the privilege to protect the criminal conduct. Such an extension of section 47(2) is untenable.” (Id. at p. 212; see also Rubin v. Green (1993) 4 Cal.4th 1187, 1195-1196, following Kimmel in finding allegedly wrongful attorney solicitation protected because it was communicative.)
Neither side here has argued whether appellants’ conduct was criminal, and the record is not sufficient for us to make a definitive determination on that issue.
More recently, in Rusheen, the California Supreme Court found that actions taken to collect a judgment, such as obtaining a writ of execution and levying on a judgment debtor’s property, were protected by the litigation privilege. (37 Cal.4th at p. 1049.) The court held that the “distinction between communicative and noncommunicative conduct hinges on the gravamen of the action, ” and “the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature.” (Id. at p. 1058.) Although the collection activity at issue was not entirely communicative, the court decided that “the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct, which in this case included acts necessary to enforce the judgment and carry out the directive of the writ. [Citations.] Stated another way, unless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies.” (Id. at p. 1065.) This emphasis on the gravamen of the action has been followed in subsequent cases. (See, e.g., Jacob B., supra, 40 Cal.4th at p. 957 [letter written by supervisor of victim witness program in connection with family law proceeding involving visitation rights was communicative act protected by litigation privilege]; Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1249 [litigation privilege applies to filing of a legal action].)
The conduct at issue in this case-alleged trespass onto a property and conversion of documents located there-is clearly more similar to the type of nonprivileged conduct at issue in Ribas and Kimmel than the type of acts which fell under the litigation privilege in Rusheen and Jacob B. As explained in Ribas and Kimmel, wrongful conduct is not protected simply because it relates to prelitigation evidence-gathering activity, and Rusheen and later cases have done nothing to alter that rule.
Since the gravamen of this action was decidedly noncommunicative, it was not protected by the litigation privilege. Plaintiffs’ case was not based on a communication by the White Zuckerman defendants or their activities’ effects on any judicial proceedings. Rather, any communicative acts in this case were merely background to the noncommunicative incidents of October 15, 2000 (entry into the property and taking of documents), and plaintiffs’ subsequent loss of business.
These facts are at least as remote from protected activity as the acts found unprotected in Kimmel. The White Zuckerman defendants erroneously rely on cases in which the litigation privilege protected allegedly false testimony, reports made to the court, and related conduct. (See Silberg v. Anderson, supra, 50 Cal.3d 205 [litigation privilege applied when husband sued wife’s divorce attorney for falsely representing that psychologist was independent and neutral]; Carden v. Getzoff, supra, 190 Cal.App.3d 907 [litigation privilege applied to claim that opposing expert accounting witness manufactured evidence for use by plaintiffs’ wife in dissolution action]; Ramalingam v. Thompson, supra, 151 Cal.App.4th 491 [accounting expert’s opinion was protected, as was his analytical work in preparing to testify].)
If Paul had sued the defendants for improperly hindering his divorce case, appellants’ asserted litigation privilege defense may be more viable. But he did not. Instead, he alleged that defendants’ trespass and conversion resulted in the termination of a long-term business relationship involving the supply of holographic laminate for Chinese national identity cards. The testimonial use of the documents copied by defendants was simply not a component of Paul’s claims, and the claims would have existed regardless of whether the dissolution action was anticipated or not. (See Kimmel, supra, 51 Cal.3d at p. 212 [contention that recorded conversations were “in anticipation of litigation” was “simply irrelevant”].) Given that the gravamen of this case was noncommunicative conduct, the litigation privilege clearly did not apply.
Since we find that the litigation privilege did not apply, we need not decide whether appellants forfeited or waived the litigation privilege defense by failing to expressly assert it in their answer to plaintiffs’ first amended complaint.
II. The Verdict Was Supported by Substantial Evidence
A. Standard of Review
Appellants also argue that the verdict was not supported by substantial evidence. “In reviewing the sufficiency of evidence on appeal, we resolve all conflicts in favor of the prevailing party and we indulge all legitimate and reasonable inferences to uphold the verdict if possible. ‘It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.’ [Citation.]” (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1043.) Stated another way, as long as there is substantial evidence, “‘the appellate court must affirm... even if the reviewing justices personally would have ruled differently had they presided over the proceedings below, and even if other substantial evidence would have supported a different result.’” (Rupf v. Yan (2000) 85 Cal.App.4th 411, 429, fn. 5.)
“Substantial” refers to the quality, not the quantity, of evidence. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) It is not synonymous with “any” evidence, but rather “‘must be reasonable in nature, credible, and of solid value.’” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1204, quoting Estate of Teed (1952) 112 Cal.App.2d 638, 644.) Nevertheless, in general “‘we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.’ [Citations.]” (Leff v. Gunter (1983) 33 Cal.3d 508, 518.)
B. The Jury’s Findings of Improper Entry and Conversion
Appellants contend that Katy had a right to enter Paul’s office and collect documents, and since Katy consented to appellants’ entry, appellants could not be liable for the events of October 15, 2000. This argument essentially ignores the jury’s findings, which were supported by substantial evidence.
The special verdict form, the final version of which was jointly submitted by the parties at trial, contained 45 questions pertaining to plaintiffs’ five causes of action, 44 of which were “yes or no” questions. The jury’s answers on each of the questions pertaining to the invasion of privacy, trespass, and conversion causes of action supported liability. With respect to trespass, this included responses from the jury that both Katy and the White Zuckerman defendants entered the property without plaintiffs’ permission and that their conduct was a substantial factor in causing harm to plaintiffs. With respect to conversion, the jury answered that defendants intentionally took possession of documents at the property without plaintiffs’ consent, and plaintiffs were harmed.
As explained in footnote 4, ante, the special verdict form did not distinguish between any of the multiple plaintiffs. As such, the jury found that “plaintiffs” proved their invasion of privacy claim. Two of the three plaintiffs at trial were business entities, though, and thus could not pursue this tort. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1260.) This error is inconsequential, however. First, the final verdict form was jointly submitted, and the invited error doctrine would prevent appellants from now challenging the form. (See Gherman v. Colburn (1977) 72 Cal.App.3d 544, 567; Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 745.) Second, the issue was not raised in appellants’ opening (or subsequent) brief, and thereby was forfeited on appeal. (See Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115; Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1177.) Third, the issue is effectively moot. Plaintiffs’ only claims for damages were based on lost profits, and there was a single award of damages in the amount of $3.4 million. The verdicts for trespass and conversion would both support the award of lost profit damages, and the record reflects no damages (and it is not argued that there were any damages) that accrued distinctly from invasion of privacy. This opinion, therefore, primarily addresses plaintiffs’ trespass and conversion claims.
In their briefs, appellants improperly disregard a large part of the evidence presented at trial, conspicuously running afoul of the rule requiring an appellant asserting a lack of substantial evidence “‘to set forth in their brief all the material evidence on the point and not merely their own evidence....’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Ignoring most of the evidence presented by plaintiffs, appellants rely almost entirely on Katy’s testimony. Among other things, Katy testified she was told by Paul that she had half-ownership in his companies, she testified that she was an employee of Paul’s companies, and she testified that Paul gave her a key and allowed her free access to the house. If this were the only testimony relating to Katy’s access to the property, then appellants’ argument that there was effective consent for their actions may have merit.
Unfortunately for appellants, this was not the only evidence relating to Katy’s access. In contrast to Katy’s testimony, Paul and the bookkeeper Derovanessian testified that Katy was not permitted to have a key to the property, and that Paul was the only one with a key to his office. They both testified Katy did not do any work for the businesses, and Paul testified that she did not own any of the plaintiff companies. Lin testified that he and Katy knew Paul would not be at the property on October 15, 2000, and Katy testified she wanted to keep the record searches secret. Given this evidence, the jury reasonably could have found that there was not consent for defendants’ entry into the property and taking of documents, and we may not substitute our discretion for that of the jury.
Paul’s and Derovanessian’s testimony relating to Katy’s access to the property was not referred to by appellants in their opening brief, and other highly pertinent testimony was also omitted. Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d 875, held that a failure to set forth all material evidence results in waiver of the claimed error by the appellant. (Id. at p. 881.) In addition, appellants’ briefs contain an inordinately and excessively large amount of incorrect citations to the record and mischaracterizations of legal authority. “‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel.’ [Citation.]” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 871.) It naturally follows that, in order for counsel to provide that assistance, the information contained in their briefs must be accurate. Although we address each of appellants’ arguments as we normally would anyway, appellants’ counsel is admonished that it gains no advantage-and puts itself at jeopardy of incurring distinct disadvantage-by disregarding the rules.
Appellants also argue that Lin acted under the belief that he was properly given authority to enter the property and take documents. But the only intent required for trespass “‘is simply an intent to be at the place on the land where the trespass allegedly occurred.... The defendant is liable for an intentional entry although he has acted in good faith, under the mistaken belief, however reasonable, that he is committing no wrong.’” (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480-1481.) Lin’s alleged good faith, lack of knowledge, and motive are also immaterial when it comes to conversion-the wrongful exercise of dominion over the property of another-as conversion is a strict liability tort. (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066 (Burlesci).)
Nor does the fact that Katy was Paul’s wife in October 2000 compel a finding that Katy could provide effective consent for appellants to enter the property. Paul purchased the property and formed the companies located there well prior to his marriage to Katy. Appellants appear not to have argued below, and certainly have not argued on appeal, that either the house or the businesses was community property. If such an argument were made, it would have been defendants’ burden to prove (see In re Marriage of Koester (1999) 73 Cal.App.4th 1032, 1035; Fam. Code, §§ 850 et seq.), but no basis for establishing community property was shown. In sum, substantial evidence supports the jury’s findings of improper entry into the property and taking of documents.
C. The Business Relationship
Appellants devote much of their appellate briefs to arguing that plaintiffs did not adequately prove that the holographic laminate business was an effective, ongoing business. This argument is not well taken.
The issue of whether plaintiffs suffered lost profits was fundamentally an issue for the jury to decide. “It is well established in this state that recovery may be had in a tort action for loss of profits resulting from the tort if such profits can be shown with a reasonable degree of certainty; but recovery is denied where the profits are uncertain, speculative or remote. [Citations.] Although evidence to establish profits must not be uncertain or speculative, ‘This rule does not apply to uncertainty as to the amount of the profits which would have been derived, but to uncertainty or speculation as to whether the loss of profits was the result of the wrong and whether any such profits would have been derived at all.’ [Citation].” (Myers v. Stephens (1965) 233 Cal.App.2d 104, 118 (Myers).)
Substantial evidence supported plaintiffs’ claim that the holographic laminate business would have continued and that they would have earned further profits from it. The jury was properly instructed that plaintiffs had to prove “it was reasonably certain that [plaintiffs] would have earned profits but for Defendants’ conduct.” The jury was presented with evidence showing large-scale production and shipments to China of the holographic material, and evidence that PYA reaped significant profits by supplying the holographic laminate to HSI. Qiu testified that the supply arrangement was expected to continue until the time that the Chinese government turned to a new type of identity card, which was expected to occur no earlier than 2005 (and actually occurred much later). Albee, the former American Banknote vice president (who also testified as one of plaintiffs’ experts), stated it was expected the arrangement would continue until a new type of card was issued, in part because there are technical barriers to a customer of holographic laminate switching to another vendor before a project is finished.
Appellants did not contend below and do not claim on appeal that the shipments and production never occurred, that China did not use the holographic material, that Paul was not heavily involved in the process, or that Paul did not earn profits from the business. They argue, however, that plaintiffs waffled back and forth about whether the agreements underlying the business relationship were oral or written. This argument is largely immaterial. It is well established that a contract can be either written or oral, or a combination of the both. (Civ. Code, §§1620, 1622; Lande v. Southern Cal. Freight Lines (1948) 85 Cal.App.2d 416, 420-421.) A contract can also be created by conduct. (Civ. Code, §1621.) The jury had a reasonable basis for determining that there was a profitable business relationship, which would have continued if not for defendants’ actions.
Appellants also complain that Paul stated in an August 2001 income and expense declaration from the dissolution action, “contracts with Chinese have expired.” This statement could have had a number of meanings. It did not necessarily mean, as appellants assert, that the laminate business was scheduled to end prior to August 2001. Appellants further protest that, in response to a request for admission, Paul admitted that he did not have an agreement with the Chinese government. In the same set of requests for admissions, however, Paul stated he did have an agreement with HSI. Appellants’ arguments regarding the effect of plaintiffs’ prior litigation with American Banknote and Woo’s memory of when the business ended are even less compelling. The jury was entitled to accord the significance to the evidence that it saw fit, and we see no reason to reverse its determinations. (See Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 266 [“‘[T]he existence of an estoppel is generally a question of fact for the trier of fact, and ordinarily the trial court’s determination is binding on appeal unless the contrary conclusion is the only one to be reasonably drawn from the facts’”].)
D. Causation of Damages
The subject of causation-whether plaintiffs adequately proved the loss of business was caused by appellants’ actions-is a somewhat closer issue. The only evidence directly pertaining to the reason for termination of the laminate business was Qiu’s testimony. Appellants argue the evidence was too unspecific to establish causation, and that Qiu’s testimony was hearsay and should have been excluded.
1. The evidence of causation
Qiu clearly testified the business was terminated because of “breaches of security at Paul Yang’s.” He testified he was involved in making First Research Institute’s decision to tell HSI to stop doing business with Paul, and he was involved in First Research Institute’s decision to terminate its relationship with HSI. What was unclear from Qiu’s testimony was who caused the breaches of security. Qiu stated, “The specifics that we knew is that somebody had got into Paul Yang’s office, we don’t know who, and had taken documents away from it.” Qiu further testified that he could not reveal the sources of the “intelligence” that there was a breach of security, and that he did not know what documents were taken.
Causation requires proof that the defendant’s conduct was a “substantial factor” in bringing about harm to the plaintiff. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1049.) “A plaintiff cannot recover damages based upon speculation or even a mere possibility that the wrongful conduct of the defendant caused the harm.” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 133.) “Evidence of causation must rise to the level of a reasonable probability based upon competent testimony.” (Ibid.) The plaintiff, however, “‘“is not required to eliminate entirely all possibility that the defendant’s conduct was not a cause. It is enough that he introduces evidence from which reasonable [persons] may conclude that it is more probable that the event was caused by the defendant than that it was not.”’” (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1029.)
The issue of whether appellants’ conduct caused plaintiffs’ harm was a matter for the jury to decide. (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 252.) In the special verdict form, the jury responded that the White Zuckerman defendants’ conduct was a substantial factor in causing harm to plaintiffs. We, of course, must resolve any conflicts in favor of plaintiffs, who were the prevailing parties, and “indulge all legitimate and reasonable inferences to uphold the verdict if possible.” (Ortega Pajaro Valley Unified School Dist., supra, 64 Cal.App.4th at p. 1043.) Since legitimate and reasonable inferences support the verdict, we uphold the jury’s conclusion of causation.
Qiu testified that the business was terminated because someone “got into Paul Yang’s office” and took documents away from it. Lin testified that on October 15, 2000, he and Katy entered Paul’s office and removed documents from it. This was the only evidence presented at trial of unauthorized entry and taking of documents from Paul’s office. It was not unreasonable to decide, therefore, that this was the reasonably probable cause of the termination. While Katy testified that she went to the property without Lin on a couple of occasions to copy documents herself, she stated she copied the documents from Rouben’s office, not Paul’s. She further stated that the room from which she got the documents was unlocked, while Paul testified he kept his own office locked. This also supported the conclusion that Katy and Lin’s visit of October 15, 2000, caused the termination.
The evidence of causation was not overwhelming. On the other hand, it was not so insufficient that it would require us to substitute our judgment for that of the jury, which could have and did find the defendants’ conduct a reasonably probable cause of plaintiffs’ harm.
2. Qiu’s testimony regarding the reason for the termination was properly allowed
Appellants also contend that portions of Qiu’s testimony should have been excluded by the trial court. The trial court’s evidentiary rulings are reviewed for abuse of discretion. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 762.) We find that the trial court did not err in allowing Qiu’s testimony.
Appellants take issue with Qiu’s testimony stating (i) that First Research Institute decided to stop working with HSI, and (ii) why First Research Institute terminated HSI. His stated reason for the termination was “because we knew that there had been breaches of security at Paul Yang’s.”
Appellants argue that Qiu’s testimony lacked foundation, was not based on personal knowledge, and was hearsay. None of these objections is compelling. Qiu testified he was involved in First Research Institute’s decision to terminate its relationship with HSI. Although appellants may take issue with the credibility of this statement, credibility is not a proper objection. (Wright v. Best (1942) 19 Cal.2d 368, 379.)
Further, none of the statements was hearsay. “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter asserted.” (Evid. Code, § 1200, subd. (a).) The testimony at issue was not used to show that there had been breaches of security, in which case it likely would have been hearsay. Rather, the testimony showed why HSI was terminated. Qiu was a direct participant in the decision to terminate HSI, and so his testimony regarding the reason for termination was proper. (See Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 476.)
3. The jury instructions
Appellants further argue they were prejudiced because the trial court refused certain special jury instructions proffered by them. We find there was no error.
First, as asserted by respondents, it appears the White Zuckerman defendants withdrew the special instructions they now highlight on appeal before the matter was submitted to the jury. The White Zuckerman defendants originally submitted 48 proposed special instructions to the court. The court initially indicated it intended to use only CACI instructions, but then invited counsel to bring to the court’s attention any special instructions they felt were critical. Subsequently, the court was given a packet of special instructions that counsel apparently deemed to be critical, and the court allowed a fair amount of argument on the propriety of those instructions. The special instructions appellants now emphasize-Nos. 1, 2, 9, and 22-were not among those instructions presented as critical. Appellants could have presented their arguments to the trial court about why these special instructions were necessary, but chose not to do so.
Second, even if the issue were not waived, it does not compel a reversal. “Instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ [Citations.]” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) Here, there was no error, and certainly none that prejudicially affected the verdict. The proposed special instruction Nos. 1 and 2 sought to define the “substantial factor” required for causation. These instructions were unnecessary, because CACI instruction No. 430 was presented to the jury. It stated: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (CACI No. 430.) Although the language in this instruction was slightly different from that proposed by appellants, the presentation of the CACI instruction in lieu of their special instructions was not prejudicial.
Appellants were likewise not prejudiced with respect to their proposed special instruction Nos. 9 and 22. No. 9, dealing with damages from loss, was insufficiently specific and was superfluous because the jury was instructed with CACI instruction No. 3903N, the CACI instruction for lost profits. Appellants’ proposed special instruction No. 22, purporting to describe the litigation privilege, contained incorrect legal conclusions.
E. Lost Profit Damages Were Recoverable for Trespass and Conversion
Appellants argue that plaintiffs should have been awarded nominal damages at most, and that lost profit damages were not recoverable. This argument is not convincing. Lost profit damages are potentially recoverable for the torts of trespass and conversion. Whether lost profit damages were sufficiently proven was a matter for the jury to decide. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61.)
1. Trespass
In general, when trespass does not result in occupancy (for which the harmed party can recover the value of the use of the property [Civ. Code § 3334, subd. (a)]), a trespass without injury will justify only nominal damages. (See, e.g., Costerisan v. Melendy (1967) 255 Cal.App.2d 57, 60.) However, when injury does result from the trespass, other damages may be appropriate, including lost profits. (See Civ. Code, § 3333: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”) Thus, in Natural Soda Prod. Co. v. City of L.A. (1943) 23 Cal.2d 193, 199-200, the plaintiff properly recovered lost profits from a defendant who flooded plaintiff’s dry lake bed, which had been used for the removal and processing of soda deposits. The court found there was “a satisfactory basis for estimating what the [plaintiff’s] probable earnings would have been had there been no tort.” (Ibid.) In Lucky Auto Supply v. Turner (1966) 244 Cal.App.2d 872, 881-883, an award of lost profit damages for trespass was found proper pursuant to Civil Code section 3333, since defendants’ construction of a building on the plaintiff’s parking lot resulted in a loss of customers.
In this case, plaintiffs claimed they suffered injury in the form of lost profits due to defendants’ trespass, and, as explained above, the jury agreed. The jury received evidence showing plaintiffs’ profits in the years preceding the termination of the laminate business and had a satisfactory basis to determine what plaintiffs’ profits would have been had there been no tort.
2. Conversion
Appellants’ argument that lost profit damages were not properly awarded for conversion likewise does not provide a basis for reversal. Although the general measure of damages for conversion is “[t]he value of the property at the time of the conversion” and “[a] fair compensation for the time and money properly expended in pursuit of the property, ” when damages of such a value would be manifestly unjust, a plaintiff may recover “an amount sufficient to indemnify the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of and which a proper degree of prudence on his part would not have averted.” (Civ. Code § 3336; Myers, supra, 233 Cal.App.2d at p. 118; Lueter v. State of California (2002) 94 Cal.App.4th 1285, 1302.) The “natural, reasonable and proximate result” required by Civil Code section 3334 has been held to be synonymous with “proximate cause, ” which is a question of fact generally left for the jury to decide. (Myers, at pp. 119-120.) Under appropriate circumstances, lost profits may be recovered. (Ibid.) We are satisfied that the evidence, as analyzed above, supports an award of lost profits for conversion.
Appellants also argue that no conversion occurred because Lin had only temporary possession of plaintiffs’ documents and returned them the same day. “The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Burlesci, supra, 68 Cal.App.4th at p. 1066.) Conversion does not require a manual taking of property-“it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.” (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 544.) Moreover, the subject of a conversion claim is not limited to physical property, but can also include information contained in that physical property. (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1565.) Given the totality of circumstances, in which Lin took the documents from the property and copied them, and thereafter the White Zuckerman defendants used the information contained in the documents to create a database of information, substantial evidence supported the jury’s verdict of conversion.
F. Consistency of the Special Verdicts
Appellants’ next argument is that the jury’s special verdicts were irreconcilably inconsistent. With respect to plaintiffs’ intentional interference with contract and economic relations causes of action, the jury found defendants did not intend to interfere with any existing or prospective contract between plaintiffs, on the one hand, and the Chinese government and/or HSI, on the other. Appellants argue that an award of $3.4 million in lost profit damages is untenable given the jury’s findings of no intentional interference. They rely on the rule that a special verdict is inconsistent with a general verdict when the two are “beyond possibility of reconciliation under any possible application of the evidence and instructions.” (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 540.)
Appellants’ theory that the jury’s special verdicts were beyond possibility of reconciliation (there was no general verdict) does not hold water. An intent to interfere with a contract or economic relationship is, of course, not an element of either trespass or conversion. (See Miller v. National Broadcasting Co., supra, 187 Cal.App.3d at pp. 1480-1481; Burlesci, supra, 68 Cal.App.4th at p. 1066.) And, as explained above, lost profit damages are recoverable for trespass and conversion. (Natural Soda Prod. Co. v. City of L.A., supra, 23 Cal.2d at pp. 99-200; Myers, supra, 233 Cal.App.2d at pp. 119-120.) The jury’s verdicts, therefore, were not inconsistent.
G. Amount of Damages
Finally, appellants argue that plaintiffs improperly presented evidence of gross profits, instead of net profits, as damages at trial. This argument fails. Appellants complain that they requested a special instruction that would have informed the jury that “lost profits” means “lost net profits” and proof of gross profits alone is insufficient to show lost profits. As with other special instructions now emphasized on appeal, this special instruction was not presented to the court as critical. This was likely because CACI instruction No. 3903N, which was read to the jury, instructed the jury that to decide the amount of damages for lost profits, it had to determine the gross amount plaintiffs would have received but for defendants’ conduct, and then to subtract expenses. Thus, there was no instructional error that was likely to have affected the verdict. (See Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580.)
Furthermore, although plaintiffs’ damages expert created a schedule which had a confusing reference to “gross profit” for numbers that appear to have been net of expenses, he testified and produced schedules showing that he subtracted expenses to arrive at his final estimate of lost profits. If anything, his apparent mislabeling in the schedule of “gross profits” for “net profits” was more likely to hurt plaintiffs than defendants.
Plaintiffs’ expert was cross-examined regarding his conclusions, and the White Zuckerman defendants presented their own expert witness, who testified that lost profits would have been much lower than the amount estimated by plaintiffs’ expert. Again, the amount of lost profit damages suffered was a matter for the jury to decide. (Bertero v. National General Corp., supra, 13 Cal.3d 43, 65, fn. 12. [“The measure of damages suffered is a factual question and as such is a subject particularly within the province of the trier of fact”].) The jury’s award of damages was less than the amount proposed by plaintiffs’ expert and more than the amount proposed by defendants’ expert.
There is no reason for us to reverse the jury’s verdict on damages, or for any of the other reasons asserted by appellants.
III. Respondents’ Cross-Appeal
Following the jury’s verdict of $3,400,000 in damages, judgment was entered in favor of plaintiffs in the amount of $3,400,000. The judgment allowed interest from the date of the verdict, but the trial court declined to award any prejudgment interest (the verdict contained no reference to interest). Following entry of judgment, plaintiffs filed a motion for new trial, arguing the judgment should be modified to include prejudgment interest. The court denied this motion, and respondents now raise the issue on appeal.
Since the judgment allowed interest from the date of the verdict, what is really at issue is “preverdict” interest. Since “prejudgment” interest is the term generally employed in case law though, and since both sides use the term in their briefs, we use this term as well.
Civil Code section 3287, subdivision (a), provides that one who is “entitled to recover damages certain, or capable of being made certain by calculation... is entitled also to recover interest thereon” from the day the right to recover arose. Damages are considered certain or capable of being made certain under subdivision (a) of section 3287 when the basis for computation of damages is not disputed. (Leff v. Gunter (1983) 33 Cal.3d 508, 519-520.) A dispute that centers on the liability for the damages does not preclude an award of interest. (Ibid.)
Prejudgment interest is not properly awarded when the amount of damages can only be resolved by account, verdict, or judgment. (Stein v. Southern Cal. Edison Co. (1992) 7 Cal.App.4th 565, 573.) An award of prejudgment interest is also improper when the defendant did not know the amount of the plaintiff’s claim and could not have calculated it from reasonably available information. (Chesapeake Industries, Inc. v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 907.)
We find that the trial court’s decision to deny prejudgment interest here was the correct one. A discrepancy between damages demanded in a plaintiff’s complaint and the amount of the final judgment militates against a finding of the certainty necessary for an award of prejudgment interest. (Wisper Corp. v. California Commerce Bank (1996) 49 Cal.App.4th 948, 961 [“The greater the disparity between the complaint and the damages... the less likely prejudgment interest is appropriate”].) While such a discrepancy is not necessarily fatal to a request for prejudgment interest, in this case the difference between the amount claimed and the amount awarded was particularly stark. Plaintiffs’ first amended complaint, filed in July of 2002, contained no numerical statement of damages, and simply stated “Plaintiffs have been harmed and will continue to suffer harm in their business operations.” From the first amended complaint alone, defendants would have had no idea they faced an eventual judgment of $3.4 million.
Further accentuating the uncertainty were plaintiffs’ frequently changing estimates of damages. In responses to special interrogatories from March 2004, plaintiffs claimed they had lost $5,174,182 in revenues. Years later, in a declaration submitted in opposition to motion for summary judgment that was signed by Paul just two months before trial, Paul stated his total losses substantially exceeded $5 million. Then, at trial, plaintiffs' expert testified the lost profit damages were in the amount of either $3,679,845 or $4,435,353, depending on whether the business would have ceased in 2005 or 2006. The jury eventually awarded damages of $3,400,000. This wide variation in claimed damages and the amount awarded leads to the conclusion that damages were not capable of being made certain.
Respondents argue that appellants had information from which they could calculate damages because White Zuckerman was in possession of financial documents, and Jack Zuckerman, a partner at White Zuckerman, produced declarations in the dissolution action examining Paul’s finances. These declarations were not relevant to the damages claim, however, because, among other things, the declarations did not analyze the expected term of the holographic laminate business or the claimed lost profits.
Additional factors also compel a denial of prejudgment interest. The dispute in the case did not just center around appellants’ liability. Appellants vigorously disputed whether the laminate business would have continued past 2001 regardless of their conduct, whether lost profits were appropriate for the types of claims asserted, and how the claimed lost profits should be determined. Further, appellants’ damages expert factored into his calculation certain expenses that were not included by respondents’ expert, and arrived at a total lost profit estimate of $242,000, significantly less than plaintiffs’ estimates. (See Stein v. Southern Cal. Edison Co., supra, 7 Cal.App.4th at p. 572 [dispute over amount of damages is a factor to be considered in determining sufficient certainty].)
While none of these factors is individually determinative, together they strongly weigh against an award of prejudgment interest. Thus, we conclude that the trial court’s denial of prejudgment interest was proper.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.