Hannibal Pictures, Inc. v. Sonja Productions LLC , 432 F. App'x 700 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HANNIBAL PICTURES, INC., a No. 09-56584
California corporation,
D.C. No. 2:06-cv-01814-WDK-
Plaintiff - Appellee, VBK
v.
MEMORANDUM*
SONJA PRODUCTIONS LLC, a
Delaware limited liability company;
SONJA TREMONT-MORGAN, an
individual,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
William D. Keller, Senior District Judge, Presiding
Argued and Submitted April 15, 2011
Pasadena, California
Before: D.W. NELSON, W. FLETCHER**, and BYBEE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** After argument, Chief Judge Kozinski recused himself from
participation in this case. Judge W. Fletcher was drawn in his place, has listened to
the arguments, and considered the briefs of the parties.
After a ten-day trial, a jury returned a verdict against Defendants-Appellants
Sonja Productions LLC and Sonja Tremont-Morgan, finding them liable for breach
of contract, fraudulent inducement, and negligent misrepresentation, and awarding
Plaintiff-Appellee Hannibal Pictures (“Hannibal”) $6,816,294 for past and future
economic losses. Defendants appeal orders from the district court denying motions
for judgment as a matter of law and a new trial or remittitur.
Defendants argue that under California’s economic loss rule, Hannibal
should not have been permitted to recover under its tort claims. The district court
properly denied this motion. Under California law, tort damages may accompany
contract claims when “the duty that gives rise to tort liability is either completely
independent of the contract or arises from conduct which is both intentional and
intended to harm.” Erlich v. Menezes, 981 P.2d 978, 983 (Cal. 1999). The
California Supreme Court has declined to apply the economic loss rule to fraud and
misrepresentation claims where, as here, one party has lied to the other. See
Robinson Helicopter Co. v. Dana Corp., 102 P.3d 268, 275 (Cal. 2004). Robinson
Helicopter controls this case. Hannibal was not precluded from suing the
defendants for fraud and negligent misrepresentation in addition to breach of
contract.
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Nor was the jury’s award of damages excessive. Under California law,
damages for “anticipated profits dependent on future events are allowed where
their nature and occurrence can be shown by evidence of reasonable reliability.”
Kids’ Universe v. In2Labs, 116 Cal. Rptr. 2d 158, 168 (Ct. App. 2002). Such
damages “may be established with reasonable certainty with the aid of expert
testimony, economic and financial data, market surveys and analyses, business
records of similar enterprises, and the like.” Parlour Enters., Inc. v. Kirin Grp.,
Inc., 61 Cal. Rptr. 3d 243, 249 (Ct. App. 2007) (citation omitted). “Expert
testimony alone is a sufficient basis for an award of lost profits . . . when the expert
opinion is supported by tangible evidence with a substantial and sufficient factual
basis rather than by mere speculation and hypothetical situations.” Id. at 250(citations and internal quotation marks omitted). Hannibal introduced into
evidence preliminary agreements with international distributors that could have
been worth over $6 million and testimony that, had Fast Flash to Bang Time been
completed, Hannibal could have received millions of dollars in sales commissions.
Hannibal also turned down a commitment from a bank to finance the movie.
Accordingly, the jury’s award of damages was supported by sufficient evidence.
See Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007).
AFFIRMED.
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