No. H040819 (Cal. Ct. App. Nov. 8, 2017)

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Alcatel-Lucent USA, Inc. v. Juniper Networks, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Nov 8, 2017

No. H040819 (Cal. Ct. App. Nov. 8, 2017)

Opinion

H040819 H041259

11-08-2017

ALCATEL-LUCENT USA, INC., Plaintiff and Appellant, v. JUNIPER NETWORKS, INC., Defendant and Respondent. ALCATEL-LUCENT USA, INC., Plaintiff and Appellant, v. JUNIPER NETWORKS, INC., Defendant and Appellant.

RUSHING, P.J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-11-CV206910)

Plaintiff Alcatel-Lucent USA, Inc. (Alcatel-USA) brought this action alleging that defendant Juniper Networks, Inc. (Juniper) had tortiously interfered with an agreement entitling plaintiff to purchase products and support from Brilliant Telecommunications, Inc. (Brilliant). The alleged interference consisted of defendant's purchase of Brilliant's assets with the knowledge that this would deprive Brilliant of the means to perform its undertakings to plaintiff. At the time of the purchase Brilliant was in serious financial distress, and likely could not have continued to perform the agreement on its own. But Brilliant was attempting to sell its business to another entity, Symmetricom, Inc. (Symmetricom), which intended—had that transaction gone through—to assume Brilliant's obligations to plaintiff. Five of plaintiff's six causes of action were disposed of by the court, but the sixth—interference with contract—was tried to a jury, which returned a verdict for plaintiff. The court then granted motions for new trial and judgment notwithstanding the verdict (judgment NOV) on the ground that the evidence was insufficient to establish that Juniper actionably interfered with the contract, or that Juniper's conduct was a legal cause of harm to plaintiff. On appeal plaintiff challenges these rulings, while Juniper contends that plaintiff is not the real party in interest because it is seeking to prosecute claims properly belonging to its corporate parent or affiliates. We hold that the court did not err in finding plaintiff to be the real party in interest, because the assignments of other entities' claims to plaintiff were effective to vest it with standing to prosecute these claims even though the assignments were not perfected until after this action was filed. Nor did the court err in finding the evidence insufficient to sustain the jury's finding that Juniper's conduct was the legal cause of harm to plaintiff. The only way plaintiff could have continued to enjoy the fruits of its contract with Brilliant was for Symmetricom to assume Brilliant's obligations under that contract; and on the present record, any inference that this would in fact have occurred is necessarily speculative. All the record shows is that if Juniper had not appeared, the Symmetricom buyout might have succeeded; the record lacks evidence sufficient to permit a reasoned inference that it probably would have succeeded. Accordingly, we will affirm the judgment. We will also affirm the trial court's order taxing certain costs claimed by Juniper.

BACKGROUND

A. Reseller Agreement

The agreement underlying this action was signed in November 2008, by Charles Barry, as President and CEO of Brilliant, and Paul-Dauphin Thierry, as "VP Product Sourcing" of Compagnie Financière Alcatel-Lucent (Compagnie), an international telecommunications concern headquartered in France and operating globally through various regional subsidiaries. The contract, entitled "Global Reseller Agreement" (reseller agreement) obligated Brilliant to sell to Compagnie's subsidiaries, for resale to "End User Customers," "certain products including hardware, firmware, operating software and/or applications software, and . . . services related thereto." This action is chiefly concerned with Brilliant's Z1000 "Zurich" network time protocol server. This was a device sold to cellular telephone providers to provide timing functions for products known as femtocells. A femtocell is a device on an end user's premises which transmits and receives cellular telephone signals over a relatively small area while providing a link to the cellular network via a broadband internet connection. Its purpose is to provide cellular coverage within an area such as a home or office that has a broadband connection but lacks an adequate cellular signal. The Zurich, or a network timing server like it, was a critical component. If the server should fail, one witness testified, the link between connected femtocells and the cellular network would "slowly go[] out of synchronization, and then all of a sudden you can't make calls any longer." According to another witness, up to 60,000 femtocells could connect to a single Zurich server.

Although the point is not clearly established by the record, it appears that Alcatel-USA was a subsidiary of Compagnie. We will often refer to plaintiff and the various other Alcatel entities collectively as "Alcatel." Because we have concluded that Alcatel-USA has standing to prosecute this action as an assignee of other entities' claims, we need not attempt to plumb the murky corporate relationships between and among them. It also appears from widely available reports that none of the corporate participants in the events described here continues to exist under the name it had when the events at issue took place. Since we ultimately affirm—and the parties raise no issue on these points—we need not concern ourselves with problems of successor liability or successor standing.

Brilliant also licensed some proprietary software to Alcatel for incorporation into Alcatel's own femtocell product. Brilliant earned a small royalty fee for each unit sold containing this software.

The reseller agreement recited that it was executed by Compagnie "on behalf of its Subsidiaries." It largely consisted of undertakings by Brilliant in favor of the subsidiaries. It required Brilliant to honor purchase orders from the various Alcatel entities and to provide support, as specified in considerable detail, for the products sold. It included numerous provisions seeking to guard Alcatel entities against an interruption of Brilliant's business.

B. Brilliant's Unsuccessful Attempts to Secure Financing

As of the end of 2009, Brilliant's balance sheet showed liabilities of $9,670,000 over assets of $3,623,000. Early in 2010 it solicited a new round of financing from various sources, including Alcatel and Juniper. Other than as described immediately below, none of the potential investors expressed interest.

C. Attempted Sale to Symmetricom

In the latter half of 2010, as hope for additional financing dimmed, Brilliant board members—led by Jonathan Ladd, then CEO—began seeking a purchaser for the company. In late 2010 or early 2011, two companies expressed interest. One was Symmetricom, a competing maker of network timing devices. The other was CXR Larus (CXR), a reseller of network-related products, including the Zurich. According to Brilliant president Barry, nothing came of CXR's inquiry because "[i]t wasn't a traditional offer for purchase," but "more of a partnership to share revenue." Symmetricom, however, put in an initial bid of $5.8 million to buy the company. Brilliant's board decided to "move into due diligence on that offer."

On January 24, 2011, Barry e-mailed Alcatel manager Yannick Dupuch advising him of a pending "transaction" involving an as-yet unnamed party and stating, "The other party to the transaction is very interested and enthusiastic to continue our relationship going forward post the transaction." He also advised Dupuch that Alcatel's formal consent to the transaction would be required. Three days later he advised Dupuch that the buyer also wanted Alcatel's written confirmation that Brilliant owned certain intellectual property rights in some code it had written for Alcatel. Although Dupuch said in an e-mail that he would supply the latter on February 1, no such document was ever provided. Similarly, while Alcatel management indicated that written consent to the transaction would be forthcoming, it had not been provided when subsequent events rendered the matter moot.

In a transaction separate from Zurich sales and from the licensed code in Alcatel's existing femtocell product, Alcatel had engaged Brilliant to modify some of its proprietary code in order to port it to a new chip to be used in Alcatel's next-generation femtocell device. Symmetricom was concerned that the terms of the applicable purchase order "made it ambiguous who would own the modified code."

By the end of January, the buyout process had progressed to a point where Barry expected the transaction to be consummated. However, on February 1 Alcatel informed Brilliant that it would not use Brilliant's code in the next version (version 2) of Alcatel's femtocell; this meant that Brilliant—and Symmetricom as prospective assignee—would receive no license fee on those products. Symmetricom thereafter lowered its offer from $5.8 to $2.5 million. The parties eventually arrived at a price of $3.5 million with the possibility of an additional "earn-out" of $2.3 million if certain conditions were met. The primary condition was that Alcatel agree within six months of closing to incorporate a new Brilliant design into its version 3 femtocell at a price yielding least $1.25 million in forecasted royalties over three years. Barry testified that when he asked Symmetricom's James Armstrong about allocating the necessary resources to achieve this objective, Armstrong refused, saying, "It's not in our interest for you to achieve this earn-out." Barry considered it impossible to satisfy the earn-out condition under such circumstances.

The buyout agreement explicitly excused Symmetricom from any obligation to "fund, support or provide any other resources, including allocation of employees, with respect to the achievement of the milestones set forth above."

Nonetheless, the Symmetricom buyout proposal was reduced to a written agreement on February 13, 2011, and the agreement was publicly announced. The text of the agreement called for a purchase price of $3.5 million, of which (1) $2,970,750 was to be "paid in cash at the Closing in accordance with the payment instructions of Seller" as set forth in an attached schedule, and (2) $524,250 was to be placed in escrow "to be released in accordance with the terms of the Escrow Agreement," a copy of which does not appear in the record. The attached payment instructions called for direct payment of some $644,000 to specified Brilliant creditors, including $180,371.60 to Victron, the main contract manufacturer of the Zurich server. After deducting an escrow fee and adding $16,000 attributed to "the Transition Period," a total of $2,345,079.82 would be paid by Symmetricom to Brilliant. Of this sum, however, Brilliant was to dispense $584,579.74 to an unnamed "Payroll Agent," presumably to defray unpaid wage obligations. Brilliant would retain the $16,000 "Transition Period" fee to pay for "rent, utilities and data communications costs" for a period up to 30 days while Symmetricom was allowed access to Brilliant's "facilities and tangible assets." Brilliant would transfer the entire remaining balance ($1,744,500.08) to an assignee for benefit of creditors.

Alcatel states that the announcement was made by joint press release, but the cited page of the record does not support this characterization and we find no record support for it elsewhere. Alcatel's briefs contain multiple such factual assertions only partially supported, if at all, by citations to the record. It is counsel's obligation not only to confine the brief to factual matters of record but to point the court to the place in the record where each stated fact is established. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Counsel does not satisfy this requirement by bundling unsupported facts with supported ones.

These numbers add up to $3,495,000, not $3.5 million. The payment instructions call for $525,000 in escrow, which—assuming a $3.5 million total—would leave $2,975,000 as immediate compensation. We have used these figures in the following calculations.

Although it is unclear when or how the contracting parties agreed on this point, it was undisputed below that the closing date for the Symmetricom agreement was set for February 16, 2011. Closing did not occur on that date. Rather, Symmetricom's chief financial officer (CFO), Justin Spencer, sent an email listing 15 conditions that remained unsatisfied, some of which were not single items but categories of multiple tasks. Efforts to satisfy these conditions continued for at least another day.

On February 17, Brilliant received a demand letter from attorneys for Victron, Inc. (Victron), the contract manufacturer of the Zurich. The letter acknowledged the pending transaction and expressed hope that Victron's previous relationship with Brilliant could be continued with Symmetricom. It went on, however, to state that "Brilliant's account with Victron is significantly past due." It demanded immediate discussions about the future of the three companies' business relationships or, in the alternative, payment of $1,008,727.40. It stated that pending satisfaction of these demands, Victron had been advised "to cease all manufacturing for Brilliant products."

D. Sale to Juniper

Meanwhile, on February 16—the agreed closing date for the Symmetricom transaction—Brilliant investor Gary Franklin had met with Juniper CEO Kevin Johnson at the Mobile World Congress, an industry conference in Barcelona. The record contains no details concerning how the meeting came about or what exactly took place there. Whatever happened, the meeting apparently led Juniper's head of corporate development to call Barry to ask whether the Symmetricom purchase had been completed. Barry told him "not yet." Barry testified that he was "shocked" by the call; he had come to believe that acquisition by Symmetricom was Brilliant's only remaining alternative to liquidation. He referred the caller to Brilliant's lawyer, Lars Johannson.

Two days after the Barcelona meeting, on February 18, 2011, Brilliant and Juniper executed an asset purchase agreement under which Juniper paid $4.5 million for all of Brilliant's assets while assuming none of its liabilities. An associated disclosure statement lists debts that appear to exceed $8 million. It indicates that the proceeds of sale would be applied first to defray all outstanding wage and similar claims, with remaining funds to be assigned for the benefit of creditors.

When the Juniper agreement was reached, Brilliant terminated the Symmetricom agreement on the stated ground that it had not closed within the agreed time. Symmetricom's Justin Spencer wrote to Barry "[i]n an attempt to save this deal," suggesting means by which outstanding conditions might be addressed. As to Victron's demands he wrote, "I am wondering if this could be addressed quickly by having you call the CEO at Victron. . . . There is a future revenue stream with Symmetricom that I'm sure they'd be interested in."

E. Abrogation of Alcatel-Brilliant Agreement

The Juniper buyout agreement did not require Juniper to assume any of Brilliant's debts or obligations, but it granted Juniper the right to review Brilliant's contracts to determine which if any it wished to assume. Immediately after the deal closed, Juniper representatives provided a list of 19 contracts they wanted to examine. The Alcatel reseller agreement was at the top of the list. Jonathan Davidson, a Juniper vice president, testified that the Alcatel reseller agreement caught his eye because Alcatel was a "chief competitor" of Juniper's. After the contract review, Juniper did not assume the Alcatel agreement.

Upon learning that Juniper had acquired Brilliant's assets, Alcatel managers attempted to secure the fulfillment of outstanding purchase orders for Zurich servers as well as to obtain assurances of ongoing supply and support in accordance with the Alcatel-Brilliant reseller agreement. The record amply supports an inference that Juniper exploited this opportunity by holding out the possibility that Zurich sales might be resumed. By April or May, however, Alcatel's efforts in this regard had failed, and in July Alcatel reached an agreement to purchase a substitute product from Symmetricom, which was made available for marketing in October. Alcatel's damages expert testified that, in order to ensure serviceability, it was or would be necessary to recall all of the Zurichs in service and replace them with the Symmetricom product.

F. Proceedings Below

Alcatel-USA commenced this action on August 9, 2011, by filing a complaint against Juniper and Brilliant. An introductory paragraph attempts to allege (see fn.7, post) that Alcatel-USA is suing "on behalf of itself and its affiliates." The complaint sets out six causes of action, but the only claim still at issue on this appeal is intentional interference with contract. That cause of action was tried to a jury, which sustained it by special verdict, finding damages of $700,665 in "[r]eplacement costs" and $9,597,592 in "[l]ost profits." The trial court granted Juniper's motions for new trial and judgment notwithstanding the verdict, entering judgment for Juniper on March 11, 2014. Alcatel-USA filed a notice of appeal (No. H040819) the next day. After proceedings discussed in Part III, post, the court granted, in part, Alcatel's motion to strike costs. Alcatel seasonably appealed from that order (No. H041259), and Juniper cross-appealed.

Brilliant's default was entered on September 28, 2011.

DISCUSSION

I. Real Party in Interest ("Standing")

A. Background

At and after trial, Juniper repeatedly objected that Alcatel-USA was not the real party in interest, i.e., it lacked standing to prosecute the causes of action asserted in the complaint. The trial court consistently rejected these objections. On appeal Juniper asserts that this was error. Although our disposition of the appeal might suggest that we need not reach this issue, we elect to do so because it raises a question of law which is both unsettled and important, and because its disposition may affect the preclusive scope of the judgment.

The complaint names only Alcatel-USA as a plaintiff. In the opening paragraph, however, it attempts to allege that Alcatel-USA is bringing the action on behalf of itself and other Alcatel entities. This is followed by allegations that "ALU [i.e., Alcatel-USA ] and Brilliant entered into a Global Reseller Agreement ('GRA')," that "ALU submitted purchase orders to Brilliant pursuant to the terms of the GRA," that various written and other communications were exchanged between Alcatel-USA and other principals; and that as a result of defendants' conduct, "Plaintiff has suffered and will continue to suffer damages including, but not limited to, costs incurred to service existing products and to qualify and certify a replacement product, loss of good will and interference with customer relationships."

The complaint's first paragraph consists in its entirety of the following language, followed by a colon: "Plaintiff Alcatel-Lucent USA Inc., on behalf of itself and its affiliates ('Plaintiff' or 'ALU')." This is not a sentence; lacking a predicate, it asserts nothing. It is doubtless meant to state, and we will treat it as stating, "Plaintiff Alcatel-Lucent USA Inc., on behalf of itself and its affiliates . . . , alleges as follows."

In fact the agreement was signed by a person identified as an agent of Compagnie, not Alcatel-USA. Alcatel-USA was a party to the contract only insofar as Compagnie can be understood to have entered the agreement as its agent. An argument to this effect finds some support in a recital that Compagnie is "acting on behalf of its Subsidiaries," which presumably include Alcatel-USA (see fn. 1, ante). However, we need not linger over the question whether Alcatel-USA was a party to the agreement, because we see no evidence that Alcatel-USA, as a distinct corporate entity, suffered any damages. Alcatel has repeatedly admitted that it did not sell any of the products at issue "outside of the United States." If there is evidence that it sold any relevant products inside the United States, we have not been directed to it; nor have we found it in this record. In any event Alcatel sought to recover damages indiscriminately for all Brilliant products sold by any Alcatel entities anywhere in the world. The judgment therefore necessarily includes damages sustained by entities other than plaintiff, and the question of plaintiff's ability to recover those damages is presented whether or not plaintiff sustained some damages in its own right.

"A subsidiary corporation is presumed to be a separate and distinct entity from its parent corporation" (1 Fletcher Cyc. Corp. (2015 Rev. ed.) § 26, p. 82, fn. omitted), and "affiliated corporations are separate and distinct from one another regardless of whether they have common shareholders, directors or officers" (id. at p. 87). In an action for breach of a contractual promise to a corporation by a third party, it is the corporation that is the real party in interest—not its owners, let alone other corporations under the same ownership. (See id., § 29, pp. 95-96.)

Alcatel-USA has also argued that it was entitled to prosecute the action on behalf of other Alcatel entities because the reseller agreement made it "the contract administrator . . . , as well as the procurement entity that handled negotiations related to the [agreement]." This hardly appears from the face of the agreement, but the point is academic. An agency relationship does not, without more, confer standing to sue for injuries to the principal. (See Epic Communications, Inc. v. Richwave Technolgy, Inc. (2009) 179 Cal.App.4th 314, 334 ["Nor does an agent ordinarily have a cause of action based upon some third person's violation of its principal's rights. Without some breach of a duty owed to [the agent], it has no power to sue on the principal's claim."]; Powers v. Ashton (1975) 45 Cal.App.3d 783, 789 ["an agent for a party to a contract not made with or in the name of the agent is not a real party in interest with standing to sue on the contract"]; Rest.3d, Agency, § 6.01, com. e.)

Therefore, in the absence of some indication that Alcatel-USA was granted the right to sue on behalf of other entities, it may not do so. Alcatel argued below that its fellow Alcatel entities had assigned to it all claims against Juniper and Brilliant at issue in this case. In support of this assertion it cited an attachment to a declaration, which it also described as "proposed trial exhibit 766." We are unable to find either the attachment or the proposed trial exhibit in the record. However, copies of the proffered assignments are attached to a later declaration by Juniper's attorney, as described more fully below. For now it suffices to say that each such document purports to transfer to Alcatel-USA the assignor's interest in any and all claims against Juniper or Brilliant arising from the reseller agreement or associated purchase orders.

The trial court denied the motions in limine. After Alcatel-USA rested its case, Juniper reasserted the standing objection as a ground for nonsuit. It now couched the argument in terms of a failure of proof, stating that "ALU has not introduced any evidence that it has standing to bring claims for interference with a contract that ALU did not sign and was not a party to," and that "ALU has not introduced any evidence that it has standing as an assignee to pursue the claims of other Alcatel-Lucent entities that suffered the damages that ALU is attempting to recover by this lawsuit." The trial court, while granting the motion on other grounds, rejected the standing objection, reasoning that having pursued claims "for every single bit of equipment that is the subject of this lawsuit on behalf of each and every one of its subsidiaries [sic]," Alcatel-USA had precluded any separate attempt by any other Alcatel entity to pursue claims on its own behalf. The court said, "This is not only a sword, but a shield to prevent them from coming at anyone in the future . . . . So this settled all those claims from all the subsidiaries." Asked if he agreed, counsel for Alcatel-USA said, "Absolutely. Yes." The court again rejected the standing objection when it was reiterated in support of Juniper's motions for new trial and judgment NOV.

B. Contentions on Appeal

On appeal Juniper insists that Alcatel-USA "lacked, and continues to lack, standing to bring suit" for reasons that may be summarized as follows: (1) Alcatel-USA lacked standing to enforce the Global Reseller Agreement because it was not a party to that agreement, which was executed by its corporate parent, Compagnie; (2) Alcatel-USA failed to plead or prove that it was a third-party beneficiary, and in any event that status would not permit it to maintain a cause of action for tortious interference with the contract; (3) Alcatel-USA cannot maintain a claim for damages suffered by other Alcatel entities because the assignments were not shown to have taken effect before the action was filed; and (4) Alcatel-USA's claimed status as an agent of other Alcatel entities does not empower it to maintain an action on their behalves.

In response to these contentions Alcatel-USA tacitly contends that it has established an entitlement to "prosecut[e] . . . its affiliates' claims in one action." It suggests that the alternative is to require the affiliates to "pursue their claims against Juniper in more than 30 different lawsuits." While we appreciate this appeal to judicial economy, we see nothing that would have prevented the joinder of all 30 affiliates as coplaintiffs in a single suit—or, as plaintiff belatedly realized, an assignment of their claims to a single plaintiff. (See Code Civ. Proc., § 3368.)

C. Nature of the Issue

We have previously described the metaphorical origins of the concept of "standing" and have noted the danger that, in many contexts, the jurisdictional connotations often associated with the term may interfere with sound analysis. (Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 990-992 (Jasmine Networks).) Often claims of "standing" really raise the question whether the plaintiff has stated, or can prove, the elements of the asserted cause of action. Here, for instance, Juniper's first two arguments raise the questions (1) whether Alcatel-USA acquired any rights by virtue of the contract whose breach Juniper was alleged to have induced; (2) whether Alcatel-USA was injured by the posited breach; and (3) whether a third-party beneficiary can maintain an action based on alleged tortious interference with the underlying contract. These questions go to the substance of Alcatel-USA's claims, not to some question of "standing."

At the same time, Juniper's challenge to Alcatel-USA's claimed right to prosecute claims for injuries suffered by other Alcatel entities raises a genuine question of jus tertii standing. (Jasmine Networks, supra, at p. 991.) Alcatel-USA asserts that it has that right here as the assignee of its affiliates' claims. The question thus becomes whether Alcatel-USA adequately established (1) the fact of these assignments, and (2) their legal sufficiency to vest it with status as the real party in interest.

Alcatel sought to establish itself as an assignee of its sibling entities' claims by two means. The most unequivocal is copies of (by our count) 29 written assignments to Alcatel-USA, by Compagnie and other Alcatel entities, of all claims against Juniper or Brilliant arising from the reseller agreement or any purchase orders issued thereunder. The second is a somewhat vague claim that all claims were assigned to Alcatel-USA before the action was instituted. We will conclude that although the supposed pre-suit assignment was never competently established, the written assignments were effective to vest Alcatel with all claims at issue despite the fact that they were not executed until after the complaint was filed.

D. Pre-Suit Assignment

Alcatel-USA tried to show in the trial court that all of the Alcatel entities had assigned their claims to it prior to the commencement of suit. On appeal, Alcatel-USA alludes to this attempt more or less in passing, asserting that "[p]rior to the filing of the complaint, each of the affiliates impacted by Juniper's actions 'authorized and granted Alcatel-Lucent USA Inc. the right to file and maintain this lawsuit on their behalf.' " This assertion is not borne out by the record.

The quoted language is drawn from an ostensible declaration submitted in opposition to one of Juniper's motions in limine. The declaration is attributed to Alexis Mendoza, Alcatel-USA's corporate counsel in New Jersey. But the signature block contains only Mendoza's machine-printed name accompanied by the parenthetical directive, "see attached e-mail." (Italics omitted.) The attached email indicates that one of Alcatel-USA's trial attorneys sent the text of the proposed declaration to Mendoza with the request that he "respond by e-mail with approval to sign on your behalf." In response she received a single cryptic line: "Approval given for Fiesan." The only other reference to "Fiesan" in the record was when counsel for Juniper confessed his understandable bewilderment over the meaning of the e-mail. All the message tells us is that Mendoza gave his authorization but subjected it to a condition of inscrutable tenor.

The meaning of the condition proves to be academic because, to serve as evidence, a declaration must be actually signed by the declarant. The governing statute states that a declaration must be "subscribed by" the "person making" it. (Code Civ. Proc., § 2015.5.) The purpose of this requirement is to deter the utterance of knowing falsehoods by exposing the declarant to prosecution for perjury if the statements in the declaration proves not to have been true or, at least, made in the good-faith belief that they are true. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1223; see Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150; Hoffman v. City of Palm Springs (1959) 169 Cal.App.2d 645, 649 ["The chief test of the sufficiency of an affidavit is whether it is so clear and certain that an indictment for perjury may be sustained on it if false."]; Osborn v. City of Whittier (1951) 103 Cal.App.2d 609, 619 [applying foregoing test to claim of formally deficient verification]; Pen.Code, § 118.)

To effectuate this objective the declarant must actually sign the declaration. (Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1222, quoting People v. Pierce (1967) 66 Cal.2d 53, 59, fn. 5 [" 'Subscribe' means 'to sign with one's own hand.' "]; Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1026 [same]; Dodge v. Free (1973) 32 Cal.App.3d 436, 442-443, quoting People v. Pierce, supra, 66 Cal.2d 53, 59, 56 Cal.Rptr. 817, 822, 423 P.2d 969, 974, fn. 5 ["the Legislature, in using the word 'subscribe,' gave it the primary meaning 'to write (as one's name) underneath' "].)

Given these principles, the declaration would not have constituted competent evidence even if trial counsel had signed it with Mendoza's unconditional authorization. (See Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1222 [attorney's "custom of signing declarations under penalty of perjury on behalf of her clients and witnesses" was "completely improper"].) As it is, trial counsel's authority to sign it was not shown, and in any event it was not signed by anyone. Accordingly, the purported declaration could prove nothing. This makes it unnecessary to consider whether its contents were too conclusory to constitute substantial evidence of a pre-suit assignment. Because there was no evidence of a pre-suit assignment, Alcatel-USA's right to assert the claims of other Alcatel entities stands or falls with the written assignments executed after this suit was commenced.

E. Written Assignments: Failure to Plead and Prove

Juniper challenges the sufficiency of the written assignments on three grounds: (1) Alcatel-USA "did not allege such assignments . . . in the Complaint"; (2) it "failed to introduce" evidence of the assignments "at trial"; and (3) the assignments were all executed after the filing of the complaint, whereas "[s]tanding has to exist at the time the Complaint is filed."

We do not believe the failure to plead and formally prove the assignments is fatal to Alcatel-USA's claimed status as real party in interest. The complaint is framed as though Alcatel-USA had contracted with Brilliant in its own right and had directly suffered all of the damages resulting from Juniper's alleged interference with that contract. In a sort of preamble, however, Alcatel-USA alleged—or clearly meant to allege (see fn.7, ante)—that it was pleading "on behalf of itself" and unidentified "affiliates." This tendered, however imperfectly, the question whether Alcatel-USA was the real party in interest as to all of the claims it asserted, i.e., whether it had standing to assert claims on behalf of absent entities. Juniper was free to test that issue by pretrial motion and to thoroughly explore the underlying facts through discovery. That it failed to do so may reflect a tactical decision to reserve this issue for trial—where it might be dispositive—rather than raise it at an earlier time, perhaps giving Alcatel-USA an opportunity to cure the defect. When Juniper finally did raise the issue by motions in limine, the trial court permitted Alcatel-USA to meet it with evidence of the written assignments. As discussed below, Juniper did not contest, and indeed conceded, the genuineness of these instruments. In effect the court permitted Alcatel-USA to amend the complaint to conform to this newly adduced evidence. While it would have been better to explicitly invite a motion to amend or supplement the complaint, we are not persuaded that the court abused its discretion in proceeding as it did.

Nor can we find grounds for reversal in Juniper's contention that Alcatel-USA "failed to introduce at trial evidence of any assignment." Juniper is apparently using the term "introduce" in the narrow sense of formally offering materials into evidence. Copies of the assignments were placed before the court, both as exhibits in support of and opposition to Juniper's motions in limine, and as a trial exhibit marked but apparently not moved into evidence. The only apparent relevance of the failure to place the assignments in evidence is that they were never shown to the jury. But that was at worst a purely formal defect unless the assignments related to an issue within the province of the jury and not the court. The question thus becomes whether Alcatel-USA's status as real party in interest was a question of fact for the jury or one of law for the court.

Several cases state that "[s]tanding is a question of law." (IBM Personal Pension Plan v. City and County of San Francisco (2005) 131 Cal.App.4th 1291, 1299, citing McKee v. Orange Unified School Dist. (2003) 110 Cal.App.4th 1310, 1316; Bilafer v. Bilafer (2008) 161 Cal.App.4th 363, 368; In re Estate of Bowles (2008) 169 Cal.App.4th 684, 690; Wallace v. GEICO General Ins. Co. (2010) 183 Cal.App.4th 1390, 1398.) In all of these cases, however, the relevant facts were undisputed, and standing turned on application of a statute or rule of law. Further, in most if not all of them, the question arose in a procedural setting—such as demurrer or summary judgment—where the court could only address questions of law. Finally, they are all traceable to McKee v. Orange Unified School Dist., supra, 110 Cal.App.4th 1310, which does not stand for the categorical rule attributed to it. The court there said that standing presented a question of law because the case turned on " ' "[i]nterpretation of a statute" ' " and on " ' "application of the interpreted statute to undisputed facts." ' " (Id. at p. 1316, quoting International Longshoremen's & Warehousemen's Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 293.)

At least one court has stated the rule conditionally: "When, as here, the facts relevant to standing are undisputed, '[s]tanding is a question of law that we review de novo.' " (Scott v. Thompson (2010) 184 Cal.App.4th 1506, 1510, quoting IBM Personal Pension Plan, supra, 131 Cal.App.4th at p. 1299.) Another court has held that if standing under a statute depends on contested facts—such as the date of accrual of a cause of action—the question becomes one for the jury. (Stofer v. Shapell Industries, Inc. (2015) 233 Cal.App.4th 176, 189-190.)

We believe this is the correct rule. If a plaintiff asserts a right to recover damages on a claim originally vested in another, and the facts underlying that assertion are disputed, those facts must be submitted to the jury because they go to the plaintiff's right to recover some or all of the damages it claims. However, if there is no dispute as to the facts on which the plaintiff's right to assert the claims of third parties depends, the question is one for the court.

Here Juniper never suggested that there was any issue of fact for the jury to try. On the contrary, it challenged the assignments by motion in limine on the ground that they were legally insufficient to vest Alcatel-USA with the status of real party in interest. It did not merely assume the genuineness of the assignments for purposes of argument; in counsel's declaration supporting the motion in limine, she explicitly described an exhibit comprising them as "a true and correct copy of assignments from Alcatel-Lucent entities around the world to Alcatel-Lucent USA Inc., dated between December 2102 [sic] and January 16, 2013." Similarly, in the memorandum supporting the motion, counsel wrote, "ALU's Exhibit List, included in its pretrial filings, revealed for the first time that ALU's parent and sister corporations had only recently assigned their claims against Brilliant and Juniper . . . to ALU," adding that Alcatel-USA had belatedly "produced copies of the Assignments to Juniper." It went on to argue that the assignments were inadmissible because they were outside the pleadings and had been given too late to effectively transfer the claims of sibling entities to Alcatel-USA. These statements amounted to a concession that the assignments were genuine. That concession left no factual issue for the jury to decide.

Juniper suggests that the evidence is insufficient to establish the assignments because Alcatel-USA "did not produce any testimony authenticating the exhibit and the signatures on the assignments." Given the concession just described, we doubt that this contention is available on appeal. In any event, while there was no testimony explicitly addressing the authenticity of the assignments, Alcatel-USA filed a declaration from its corporate secretary in opposition to one of the pertinent motions in limine. There she declared, "In December 2012 and January 2013, I executed Assignments on behalf of ALU. Among other things, each assignment irrevocably assigned to ALU all claims, actions, and/or causes of action that the assignor has or may have against Brilliant Telecommunications, Inc. . . . and/or Juniper Networks, Inc. . . . [at issue in this action]." In the next paragraph she declared that the attached documents were "true and correct copies of these Assignments from the following AIcatel-Lucent entities," followed by a list of 30 entities.

The attachments are not included in the declaration in the record, but we assume they were the same as the copies attached to Juniper's motion in limine.

It is true that there was no evidence directly addressing the authenticity of the assignors' signatures. But there is no rule that the assignor must attest to the fact of an assignment, provided the assignee competently does so. (See Norton v. Consolidated Fisheries, Inc. (1953) 120 Cal.App.2d 86, 89-90 [testimony of assignee sufficiently established oral assignments]; Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401, 1409 [party's attorney "sufficiently authenticated" documents in opposition to summary judgment "when he declared that they were true and correct copies of documents sent by and received from prior counsel" for party]; cf. Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 244 [letter by plaintiff not properly authenticated by attorney's declaration, but defendant forfeited objection by submitting own copy of letter and relying on it in trial court].) One court has described authentication by attorney declaration as "routine in law and motion practice." (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 523.) Although the issue here arose at trial, the motion-in-limine mechanism invoked by Juniper effectively brought it under those rules. Had Juniper suggested that the authenticity of the assignments was actually contested—instead of conceding the opposite in its papers and oral presentation—Alcatel-USA might have been properly required to satisfy a more rigorous standard to authenticate the assignments.

We conclude that the trial court was not barred from considering the written assignments in response to Juniper's challenge to plaintiff's standing.

F. Written Assignments: Timeliness

1. Nature of the Issue

Juniper's most troubling challenge to Alcatel-USA's standing under the written assignments is that they were substantively insufficient to confer standing in this lawsuit because they were not executed until after the complaint was filed. Juniper contends that the plaintiff must have standing to prosecute the action when it is filed, that a lack of standing cannot thereafter be cured, and that Alcatel therefore could not establish its status as the real party of interest by proffering assignments that were only executed while the action was pending.

Juniper cites no squarely apposite support for its argument. Its chief authority is Californians For Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 232-233 (Mervyn's), which addressed the effect of a statutory curtailment of public interest standing while an action was pending. The plaintiff there was a citizens' association which charged a department store with violating the Unfair Competition Law (Bus. & Prof. Code, §§ 17200 et seq.) (UCL) by failing to adequately accommodate persons using mobility aids such as wheelchairs. (Mervyn's, supra, at p. 227.) After the action was filed, voters amended the UCL to declare that a private person could maintain a suit under that act only if he or she had "suffered injury in fact and ha[d] lost money or property as a result of unfair competition." (Bus. & Prof. Code, § 17204.) The court held that the amendment ousted the plaintiff of the standing it had possessed when it filed the complaint. In the passage cited by Juniper, the court rejected an argument that applying the revised statute to pending cases would offend the presumption against retroactive statutes: "In effect, section 17203, as amended, withdraws the standing of persons who have not been harmed to represent those who have. But the section need not for that reason be described as operating retroactively. For a lawsuit properly to be allowed to continue, standing must exist at all times until judgment is entered and not just on the date the complaint is filed. '[C]ontentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding.' (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438, 261 Cal.Rptr. 574, 777 P.2d 610; see also Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361, 87 Cal.Rptr.2d 654, 981 P.2d 499; McKinny v. Board of Trustees (1982) 31 Cal.3d 79, 90, 181 Cal.Rptr. 549, 642 P.2d 460.)" (Mervyn's, supra, at pp. 232-233, italics added.)

The Supreme Court has elsewhere acknowledged that questions of standing are not "jurisdictional" in the sense that they often are in federal courts. (Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 936, fn. 11 (Yvanova).) We have gone further, questioning whether the use of jurisdictional language in this context contributes anything to the sound development of the law. (See Jasmine Networks, supra, 180 Cal.App.4th at pp. 989-993; Rossdale Group LLC v. Walton (2017) 12 Cal.App.5th 936, 944, quoting 2 Witkin, Cal. Procedure (5th Ed. 2008) Jurisdiction, § 99, p. 672 [" 'Defects or errors in relation to parties do not affect subject matter jurisdiction.' "]). It is true that where a lack of standing appears on the face of the complaint, it can be raised at any time—but this is because such a defect constitutes a failure to state facts sufficient to constitute a cause of action. (See McKinny v. Board of Trustees, supra, 31 Cal.3d 79, 90 ["It is elementary that a plaintiff who lacks standing cannot state a valid cause of action; therefore, a contention based on a plaintiff's lack of standing cannot be waived under Code of Civil Procedure section 430.80 and may be raised at any time in the proceeding."]; Rossdale Group, LLC v. Walton, supra, 12 Cal.App.5th at p. 946, quoting Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 765 [" ' "A complaint filed by someone other than the real party in interest is subject to general demurrer on the ground that it fails to state a cause of action." ' "]; County of Riverside v. Loma Linda University (1981) 118 Cal.App.3d 300, 319 ["lack of standing as a real party in interest is not jurisdictional; it is equivalent only to a failure to state a cause of action"].)

This language, and particularly the italicized portion, must be understood in the context in which it was used. The court was not concerned with an attempt to cure a defect in standing that existed when the complaint was filed. Instead the court was faced with a situation where the plaintiff clearly had standing when the complaint was filed but where a statutory amendment interposed a new bar to relief. The decision is therefore weak authority, at best, for Juniper's premise that an initial defect in standing cannot thereafter be cured. Indeed that premise is at least impliedly contradicted by a second decision rendered on the same day and applying the same statutory amendment. In Branick v. Downey Sav. and Loan Ass'n (2006) 39 Cal.4th 235, the court considered whether a plaintiff whose standing had been "revoked" by the amendments to the UCL should be permitted to amend the complaint to add one or more plaintiffs who would satisfy the new standing requirements. (Id. at p. 239.) The court expressly rejected a contention "that courts may never permit a plaintiff to amend a complaint to satisfy Proposition 64's standing requirements." (Ibid.) It cited other cases in which "courts have permitted plaintiffs who have been determined to lack standing, or who have lost standing after the complaint was filed, to substitute as plaintiffs the true real parties in interest." (Id. at p. 243.) These cases are not easily reconciled with Juniper's premise that a lack of standing, once it occurs, is a non-curable defect.

More fundamentally, Mervyn's and similar cases involve a different kind of standing than is at issue here. Those cases involved "taxpayer standing" or " ' " 'public right/public duty standing,' " ' " as distinct from "personal standing." (Yvanova, supra, 62 Cal.4th at p. 936 & fn. 12; see Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 166 [plaintiff asserted "public interest standing" to pursue challenge to decision regarding environmental impact statement]; id. at pp. 160, 171 [plaintiff manufacturers' association also "ha[d] standing in its own right" to maintain suit]; Rossdale Group, LLC v. Walton, supra, 12 Cal.App.5th at p. 945 [distinguishing questions of corporate capacity in purely private dispute from cited case concerning standing of taxpayers to challenge county's implementation of voter outreach program].)

The cases discussed in Mervyn's were concerned, as was that case itself, with the first type of standing, i.e., to pursue claims assertedly serving a public interest. (See Mervyn's, supra, at p. 233, citing Common Cause v. Board of Supervisors, supra, 49 Cal.3d 432, 438 [standing of taxpayers to secure public entity's compliance with voter outreach programs]; Associated Builders & Contractors, Inc. v. San Francisco Airports Com., supra, 21 Cal.4th 352, 362 [standing of nonunion builders' association to challenge prehire agreement for airport construction; in addition to claiming injury, members asserted standing as "citizens and taxpayers of the state"]; McKinny v. Board of Trustees, supra, 31 Cal.3d 79, 90 [taxpayer standing to enforce school board's duty to desegregate].) This case, in contrast, is solely concerned with whether plaintiff has the right to enforce private rights originally vested in others but since assigned to it.

All standing rules rest on the premise that parties should not ordinarily be able to "assert rights or interests belonging solely to others." (Yvanova, supra, 63 Csl.5yh at p. 919, citing Code Civ. Proc. § 367 and Jasmine Networks, supra, 180 Cal.App.4th at p. 992.) But the underlying rationale for that premise differs as between public interest standing and purely private standing. As modernly conceived, the concern in private cases begins, and largely ends, with avoiding unfairness to defendants. When someone other than the holder is permitted to prosecute a claim, it raises an obvious risk not only of a multiplicity of suits but also of inconsistent or duplicative liabilities. While the non-holder is pursuing a judgment, the actual holder of the cause of action may be waiting in the wings to eventually seek redress on his or her own behalf. A judgment in the non-holder's case will not bind the real holder unless the two plaintiffs happen to be in privity with one another. (See Arias v. Superior Court (2009) 46 Cal.4th 969, 984, fn. 6, quoting 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 468, pp. 1131-1132 [" 'a person who is neither a party nor in privity with a party is not bound by a judgment in an action even if the person is vitally interested in and directly affected by the outcome of the action' "]; see Anheuser-Busch, Inc., v. Starley (1946) 28 Cal.2d 347, 351-352.)

In cases involving only private rights, the basic function of the modern real-party-in-interest requirement is to guard against unfairness to the defendant by ensuring that the holder of the cause of action, and only the holder, may put the defendant to the expense and risk of suit. (See Rossdale Group, LLC v. Walton, supra, 12 Cal.App.5th at p. 944, quoting Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111 Cal.App.4th 912, 921 [purpose of real-party-in-interest requirement is to " 'protect a defendant from harassment from other claimants on the same demand.' "]; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1008, fn. 5 ["The purpose of the real party in interest requirement is to ensure that a resulting judgment will impose a res judicata effect on the claim advanced, so that relitigation will not be necessary upon a later finding that the first party to pursue the claim was not the real party in interest."].)

Real-party-in-interest statutes were the culmination of a reaction against a common-law regime that, when it allowed suit on an assigned chose of action, subjected the suit to needless technical complications. "[U]nder the early common law choses in action were not assignable. On the other hand, equity recognized the validity of suits by the assignee . . . . Later courts of law allowed the assignee to sue in the name of the assignor, requiring an express power of attorney in the beginning, then later finding such implied in the fact of assignment, and finally indulging in a conclusive presumption of ownership. Eventually courts of law clothed the assignee of a chose in action with all the incidents of ownership except that of allowing him to sue in his own name." (R. Johnson, Equity—Assignment of Choses in Action—Suit in Whose Name (1939) 17 Tex. L. Rev. 183, 184, fns. omitted.) Section 367 was enacted to eliminate this last vestige of the former hostility to suits on assigned causes of action. (See 4 Witkin, Cal. Procedure (5th ed. 2008) Pleadings, § 120, pp. 186-187.)

Questions of public interest standing may raise similar concerns as well. If Citizen Goodheart can sue on behalf of some asserted public interest, then what is to prevent Citizens Nauseam and Infinitum from doing likewise? Of course, the law does provide safeguards in such a setting, but the point here is that such cases differ sharply from purely private actions in that they can jeopardize the very interests they claim to vindicate. Foremost of these is the risk that plaintiffs with an insufficient stake in the outcome may not adequately represent the interests of those on whose behalf they profess to be acting, in which case the suit may impair rather than advance those interests. (See Save the Plastic Bag Coalition v. City of Manhattan Beach, supra, 52 Cal.4th 155, 169, quoting Common Cause v. Board of Supervisors, supra, 49 Cal.3d 432, 439 [" 'The purpose of a standing requirement is to ensure that the courts will decide only actual controversies between parties with a sufficient interest in the subject matter of the dispute to press their case with vigor.' "]; Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 159 ["A party enjoys standing to bring his complaint into court if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he will vigorously present his case.' "]; Baker v. Carr (1962) 369 U.S. 186, 204 ["the gist of the question of standing" is whether "the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions"].)

Indeed adjudicating issues of public significance at the behest of private persons can raise the risk of collusive suits, particularly where the judgment may affect the financial interests of parties or those aligned with them. (See, e.g., United States v. Johnson (1943) 319 U.S. 302, 305 [directing district court to dismiss, as collusive, suit in which landlord challenged constitutionality of wartime rent control statute, and tenant was represented by attorney selected by landlord]; Flast v. Cohen (1968) 392 U.S. 83, 100, citation omitted ["federal courts will not entertain friendly suits . . . or those which are feigned or collusive in nature"]; Potrero Hills Landfill, Inc. v. County of Solano (E.D.Cal. 2012) 868 F.Supp.2d 1007, 1012 [finding that while suit was not " 'friendly,' " plaintiff failed to show actual or imminent "injury in fact" necessary for Article III standing].)

In short, standing requirements in the public interest context exist as much to protect the true holders of the right sued upon as they do to protect defendants. Such concerns do not exist in the typical suit over private rights and duties. If a private suit has merit, then some private person has the right to prosecute it; the only relevant question is whether the plaintiff is that person, such that the present suit is the one and only time the defendant will be required to defend the claim. (See F. Hessick, Standing, Injury in Fact, and Private Rights (2008) 93 Cornell L. Rev. 275 [criticizing federal courts for applying "injury in fact" requirement indiscriminately to private causes of action as well as public interest suits].)

To require that an assignment be perfected before an action is filed on the assigned cause of action does nothing to protect the defendant from successive lawsuits. If the assignment operates to divest the original holder of the claim and to vest it instead in the plaintiff, the defendant has received all the protection the real-party-in-interest rule is intended to confer. " '[W]here the plaintiff shows such a title [in the cause of action] as that a judgment upon it satisfied by defendant will protect [the defendant] from future annoyance or loss, and where, as against the party suing, defendant can urge any defenses he could make against the real owner, then there is and end of the defendant's concern, and with it of his right to object; for, so far as he is interested, the action is being prosecuted in the name of the real party in interest.' " (Anheuser-Busch, Inc. v. Starley, supra, 28 Cal.2d at p. 352, quoting Giselman v. Starr (1895) 106 Cal. 651, 657; see Philbrook v. Superior Court (1896) 111 Cal. 31, 34-35 [to same effect].)

Here the question was whether Alcatel-USA "show[ed] such a title" in the claims of other Alcatel entities that a judgment in this action would shield Juniper from subsequent suits by the assignor entities. The trial court acknowledged this issue and explicitly found, with the emphatic assent of plaintiff's counsel, that none of the assignor entities would be able to separately present its claims. While we are not so bold as to predict the actions of foreign courts, we are quite confident that no American court presented with the judgment in this case would entertain a new action on any of the claims here shown (and found) to have been assigned to plaintiff.

2. Authorities on Post-Filing Assignment.

Although the parties do not mention them, four older California decisions address the efficacy of an assignment perfected after the assignee files suit. The oldest of these—and the one most consistent with the foregoing principles—is Caulfield v. Sanders (1861) 17 Cal. 569 (Caulfield), in which the defendant in an action for debt alleged, in effect, that the creditor's assignment of the debt to the plaintiff had not been perfected until after suit was commenced. Chief Justice Field held that this allegation, if proven. "would constitute no defense to the action" because "[i]t is of no consequence to the defendant, as it in no respect affects his liability, whether the transfer was made at one time or another . . . ." (Id. at p. 572; see Yvanova, supra, 62 Cal.4th 919, 939 [quoting this language].)

Unfortunately this decision and its pragmatic approach, which is much in keeping with modern theories of practice and procedure, was overlooked or ignored in three subsequent decisions. The first was Wittenbrock v. Bellmer (1880) 57 Cal. 12 (Wittenbrock), where—on facts materially identical to those in Caulfield—the court held ineffectual a post-complaint ratification of a pre-suit assignment that was ultra vires when made. The court declared that a supplemental pleading cannot be used to cure an original defect in a complaint by alleging subsequently arising facts: "It is only when the plaintiff is, at the time of the commencement of his action, entitled to some relief, that he can avail himself of facts which afterwards occur, by setting them out in a supplemental complaint." (Id. at p. 14.) The nearest thing the court provided to an explanation is this: "The case was at issue, and if it had been tried at any time prior to the date of the ratification, the judgment must have been for the defendant. Could a stranger to the action step in at any time before the trial and deprive the defendant of that right, by placing in the hands of his adversary an instrument upon which he might have maintained an action? or one which he alleged that he had, but in fact did not have, when he commenced the action? Clearly, not." (Id. at p. 13.) We find nothing clear in this reasoning. It apparently rests on the notion that a defendant suffers some inherent prejudice when a plaintiff, after filing an action, takes some step necessary to cure a defect in the cause of action as originally framed. Such a chain of events may indeed disadvantage a defendant in the sense that it makes his or her position weaker than it was when the complaint was filed; but the same is true of any amendment that corrects or strengthens a complaint. A mere reduction in one's odds of winning a lawsuit does not by itself constitute cognizable prejudice; to rise to that level, there must be some element of unlawfulness or unfairness. Nor do defendants have a vested interest in defects in a plaintiff's first attempt to plead a cause of action. On the contrary, the rule is deeply embedded in our jurisprudence that " '[w]here the complaint is defective, ". . . great liberality should be exercised in permitting [the] plaintiff to amend [it]." ' " (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970.) This rule prevails "absent a showing of prejudice to the adverse party." (Board of Trustees of Leland Stanford Jr. University v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.) The mere loss of a non-substantive objection to a claim as originally presented is not prejudice.

Although this supposed restriction on supplemental pleadings has been echoed in a number of more modern decisions, we question its viability. (See, e.g., Virgin v. State Farm Fire & Casualty Co. (1990) 218 Cal.App.3d 1372, 1375 ["Subsequent decisions have made it clear an action will not be dismissed if a defect in the cause of action is remedied by subsequent events."].) One of the early cases on the point was Grant v. Sun Indem. Co. of New York (1938) 11 Cal.2d 438, 440, where the court addressed a contention, based on Wittenbrock and several later decisions, that the trial court had erred by permitting the plaintiff to amend the complaint to allege that a condition precedent to suit on an insurance policy had been satisfied after the action was filed. The court fell short of endorsing the cited authorities, describing them only as "not questioned." (Ibid.) There was no occasion to examine them further because the court rejected the defendant's argument on other grounds. (Ibid.) We have found no case since the nineteenth century in which the cited rule was actually held to preclude reliance on a post-complaint assignment.

Despite the lack of supporting authority or reasoning, Wittenbrock was followed in Read v. Buffum (1889) 79 Cal. 77, 81-82 (Read), again involving materially identical facts. This result is unsurprising, since two of the court's three members also sat on the three-judge Wittenbrock panel. Ten years later, in Dingley v. McDonald (1899) 124 Cal. 682, 685-686 (Dingley), a panel of three commissioners likewise held that where an assignment was ultra vires when made, its post-complaint ratification by a bank was ineffective to save the assignee's suit.

The status of these four decisions as binding authority (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity)) is debatable. Apart from their age, only Caulfield was issued by the California Supreme Court sitting as a whole, albeit a court then consisting of only three justices. (See The Supreme Court of California (2007 ed.), pp. 11-12, available at 2007_Supreme_Court_Booklet_withInserts.pdf, <http://www.courts.ca.gov/documents/2007_Supreme_Court_Booklet_withInserts.pdf> (as of Oct. 18, 2017) (Supreme Court History).) Wittenbrock and Read were decided by three-justice "departments" of the Supreme Court (see People v. Kelly (2006) 40 Cal.4th 106, 113), while Dingley was rendered by a panel of three "commissioners" (see Supreme Court History, supra, at p. 15). We are confident that commissioner decisions like Dingley have no more binding force than decisions of the courts of appeal, which were created in 1904. (See Supreme Court History, supra, at p. 15; Auto Equity, supra, 57 Cal.2d at p. 455.) The question may be murkier with respect to department decisions like Wittenbrock and Read, and perhaps even three-justice en banc decisions like Caulfield. We need not finally decide the question, however, for Wittenbock, Read, and Dingley all conflict with Caulfield without overruling it or even acknowledging its existence. This divergence triggers the rule that "where there is more than one appellate court decision, and such appellate decisions are in conflict . . . the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions." (Auto Equity, supra, at p. at p. 456.) We choose the rule of Caulfield, which we find clearly superior to the treatment in the other cases.

Curiously, the opinion refers to only one concurring justice, raising the possibility that the court was a member short and the decision was actually rendered by a two-justice panel.

Our choice is reinforced by the fact that Caulfield's approach has been expressly adopted as a rule of court, or statutory equivalent, in federal courts and two-thirds of the states. The federal rule, which appears to be the model, begins by declaring that an action must be brought in the name of the real party in interest. (Fed.R.Civ.Proc., rule 17(a)(1), 28 U.S.C.) It then goes on to add, "The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action" (id., rule 17(a)(3)).

Federal courts applying the rule have treated an assignment of the claim holder's rights to the plaintiff as falling within the rule. (E.g., Dubuque Stone Products Co. v. Fred L. Gray Co. (8th Cir. 1966) 356 F.2d 718, 724 [in suit for unpaid insurance premiums, insurance agent was real party in interest notwithstanding that assignment of claim from insurer occurred after suit commenced]; Federal Deposit Ins. Corp. v. Main Hurdman (E.D. Cal. 1987) 655 F.Supp. 259, 267 [" 'it has been held that even when the claim is not assigned until after the action has been instituted, the assignee is the real party in interest and can maintain the action' "]; 6A Wright, Fed. Prac. & Proc. Civ. (2010 ed.) Parties, § 1545, pp. 495-496.) The rule will not be applied in a manner depriving the defendant of a defense, such as limitations, otherwise available against the assignor. (See Go Computer, Inc. v. Microsoft Corp. (D. Md. 2006) 437 F.Supp.2d 497, 507, fn. 7, citing United States ex rel. Wulff v. CMA, Inc. (9th Cir.1989) 890 F.2d 1070, 1074-1075; Dubuque Stone Products, supra, at p. 724.) California has directly addressed this aspect of the problem by declaring that a suit on an assigned chose in action "is without prejudice to any set-off, or other defense existing at the time of, or before, notice of the assignment . . . ." (Code Civ. Proc., § 368.)

The great weight of authority thus vindicates the rule in Caulfield v. Sanders, supra, 17 Cal. at page 572, which we hereby adopt: so long as the assignment of a private cause of action "in no respect affects [the defendant's] liability," but only the plaintiff's status as real party in interest, the defendant cannot successfully object on the ground that the assignment was not made or perfected until after the complaint was filed. The trial court therefore correctly concluded that the assignments here were effective to vest Alcatel-USA with whatever rights of action were held by the assigning entities with respect to the subject matter of this lawsuit. No error occurred in finding Alcatel-USA to be the real party in interest, or in rejecting Juniper's lack-of-standing defense.

II. Merits

A. Standard of Review

At issue on this appeal are two orders. Standing alone, the order granting a new trial would set the case at large as if it had never been tried. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in the Trial Court, § 126, pp. 718-719.) However, that order has no effect unless the order granting judgment NOV is reversed. (Code Civ. Proc., § 629, subd. (d).) Accordingly, we direct our attention to that order.

A motion for judgment NOV "may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict." (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510.) In other words, judgment NOV is appropriate only where the evidence is so objectively deficient that no reasonable jury with a sound understanding of the law could properly render the verdict under scrutiny. (See Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751 (Fountain Valley).) On appeal from such an order, " 'the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571, 150 P.2d 422; [citation].)' (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279, 88 Cal.Rptr.3d 186; Sonic Mfg. Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466, 126 Cal.Rptr.3d 301.)." (Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1074-1075, review denied.) The reviewing court must consider the evidence in the light most favorable to the party securing the verdict, and must indulge all reasonable inferences in favor of the verdict, which is to say, against the order granting JNOV. (Hansen v. Sunnyside Products, Inc., supra, 55 Cal.App.4th at p. 1510.) If there is any substantial evidence on which the jury could have found the contested element(s) of the claim, the order must be reversed.

B. Trial Court Ruling

The trial court's order granting judgment NOV stated only that the evidence at trial "was insufficient as a matter of law to support the findings of the jury on the cause of action for intentional interference with contractual relations." It did not specify in what respect the court found the evidence deficient. However, the court gave several reasons for its order granting a new trial, which was filed the same day. Among these were that Alcatel-USA "did not provide sufficient evidence to establish that Juniper's conduct was a substantial factor in causing harm" to it. The court elaborated on this conclusion, writing, "There was insufficient evidence that Brilliant would have performed the [reseller agreement] but for Juniper's conduct." Brilliant "had already breached" the reseller agreement, and "had stopped operating as a business before Juniper bought its assets." Further, "[t]he Symmetrico[m] Brilliant deal failed to close because of ALU's conduct and because Brilliant did not have the financial resources to meet Symmetrico[m]'s closing conditions."

These reasons are framed as affirmative findings in support of the order granting a new trial. However they are readily translated into a rationale for the order granting judgment NOV: that the evidence was insufficient as a matter of law to establish that Juniper's conduct was a legal cause of injury to Alcatel.

Insofar as Juniper's new trial motion asserted insufficiency of the evidence to support the jury's findings, the trial court was entitled to act as a " 'thirteenth juror' " and make its own independent factual determinations. (Ryan v. Crown Castle NG Networks Inc. (2016) 6 Cal.App.5th 775, 784; see Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 440, disapproved on another point in McCoy v. Hearst Corp. (1986) 42 cal.3d 835, 846, fn. 9; Fountain Valley, supra, 67 Cal.App.4th 743, 751-752.)

C. Nature of Causation Requirement

As the jury was properly instructed, it was Alcatel's burden to establish that it was harmed by Juniper's interference with the reseller agreement and that Juniper's conduct "was a substantial factor in causing [that] harm." (See CACI No. 2201.) The jury was further instructed that "[c]onduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct." (See CACI No. 430.) The instructions also made it clear that the burden rested on Alcatel to "prove" that each element of the tort was "more likely to be true than not true."

In short, Alcatel had to demonstrate that it was probably true that had Juniper not intervened, someone—whether Brilliant or Symmetricom as Brilliant's assignee—would have continued to perform the reseller agreement. (See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts § 738, p. 1064 [plaintiff must allege and prove that but for defendant's conduct, "the contract would have been performed"]; Dryden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 997 [same] ; Eltolad Music, Inc. v. April Music, Inc. (1983) 139 Cal.App.3d 697, 708, fn. 2; Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177, 1197 [action for interference with agreement to develop land in Mexico was properly stayed on grounds of forum non conveniens, where evidence of local opposition to project cast doubt on plaintiff's ability to prove causation].) "If the breach would [have] occur[red] in any event, then the [defendant's] acts cannot be the proximate cause." (Allen v. Powell (1967) 248 Cal.App.2d 502, 508.)

D. Application of Requirement

The record contains no evidentiary basis for a finding that Brilliant itself would have continued to perform its contractual obligations to Alcatel but for Juniper's conduct. It was uncontroverted that as of the end of 2009, Brilliant's liabilities exceeded its assets by some $6 million. By the end of 2010 Brilliant was unable to pay all of its creditors, including lenders and suppliers. It began losing employees around that time. By February 2011, when Juniper stepped into the picture, "[s]alaries were not getting paid." At that point, Barry testified, Brilliant was "out of money" and had "essentially ceased to carry on business on a regular basis." Victron, the contract manufacturer of the Zurich, had "shut down," and "other creditors were ready to do the same."

Obviously Brilliant could not perform its obligations to Alcatel under these circumstances. Without money it could not produce new Zurichs to fill Alcatel's purchase orders. Without employees—or the means to pay them—it could not furnish technicians to service the Zurichs already in place. Had not someone like Juniper or Symmetricom intervened, Brilliant would have been forced to undergo bankruptcy or some other form of liquidation. There was no evidentiary basis for a finding that Alcatel's reseller agreement could have survived liquidation. At most there was a naked theoretical possibility that it might have done so. A naked possibility was not enough to sustain a finding that Alcatel had carried its burden.

Thus, so far as this record shows, Alcatel's only hope of continuing to enjoy the benefits of the contract was for Symmetricom to assume Brilliant's obligations under that contract. The verdict therefore stands or falls with the premise that if Juniper had not intervened, the Symmetricom deal would have gone through, and Symmetricom would have assumed Brilliant's obligations to Juniper. Obviously both Symmetricom and Brilliant—or some of its owners—wanted the deal to go through. But to establish causation, Alcatel had to present substantial evidence from which it could be reasonably found that, more likely than not, the deal would in fact have gone through. Our careful review of the record has failed to discover such evidence.

Barry testified that he did not favor the Symmetricom offer and twice presented a competing proposal to the Board, under which he and other members of management would purchase the business. That proposal too would have included an assumption and continuation of the reseller agreement with Alcatel. However there is even less evidence that this proposal might have succeeded than there was for the Symmetricom buyout. When Barry first proposed it, the board elected to proceed with the Symmetricom transaction instead. Barry later confided in an e-mail that the investors had not accepted his proposal because "[t]hey thought that Symmetricom would pay more after the due diligence was over and that Symmetricom could get the deal done faster." He opined that they had been proven "wrong on all accounts." However we see no suggestion that Barry would have been in a position to step into Symmetricom's shoes if the deal had fallen through, or that the board would have accepted such an attempt.

There can be no doubt that the Symmetricom deal was on shaky ground when Juniper intervened. The deal was supposed to close on February 16, 2010. When that did not occur, many other things happened. One of them was that Brilliant President Barry wrote to Alcatel's Creighton suggesting that Alcatel itself was responsible for the failure: "The sale of Brilliant to Symmetricom is being held up entirely because Alcatel has not executed a perfunctory contract assignment to Symmetricom. Because of this delay, Brilliant's employees did not get their paychecks yesterday. Moreover, Brilliant is not in the financial position to have the Contract Manufacturer build more units." But while the latter statements were accurate, he acknowledged at trial that the first statement was not. It was instead part of an effort to goad Alcatel into moving more quickly to furnish a formal consent to Symmetricom's assumption of the reseller agreement. The failure of these efforts was part of what apparently led the trial court to find, in granting the motion for new trial, that the Symmetricom deal "failed to close," in part, "because of [Alcatel-USA]'s conduct ." But it is not necessary to attribute the failure to Alcatel in order to find the evidence insufficient to establish that the deal was more likely than not to close.

The Symmetricom deal was being held up not only by Alcatel's sluggishness in furnishing the requested consent but by a seemingly large number of other unfulfilled closing conditions, Symmetricom's chief financial officer, Justin Spencer, e-mailed Brilliant's board chair also on February 16, with a list of 15 "outstanding items" to be achieved before the transaction could close. Some of the listed items actually involved multiple tasks, such as obtaining "[c]onsents to assignment" from Alcatel and two other entities. Other unsatisfied conditions included "[e]vidence of payoffs from key suppliers" and "[w]ritten acknowledgement from the key suppliers."

These "key suppliers," and the amounts thought to be owed to them, were set out in a schedule to the Symmetricom buyout agreement. According to the schedule, Brilliant owed Victron, the contract manufacturer of the Zurich, $180,371.60 as of January 31, 2011. The agreement called for Symmetricom to wire this sum to Victron before closing. However, the agreement also required, as noted in Spencer's e-mail, that key suppliers acknowledge the accuracy of the stated arrearages in writing. Another February 16 e-mail from Spencer noted this requirement, stating that Symmetricom needed an e-mail or phone call from Victron "confirming the amounts that they are owed. I assume these will be the same as what's in the disclosure schedule . . . ."

This assumption was dispelled the next day, February 17, when an attorney for Victron wrote to Spencer and Barry in response to reports of the Brilliant-Symmetricom deal. He expressed the hope that as Symmetricom succeeded to Brilliant's business, it would "continue and enhance its business relationship with Victron." However, he continued, "we have been informed that representatives from Brilliant have recently stopped communicating with Victron and have left the company. Victron has not been provided with replacement contacts at or from Symmetricom. Further, we have been informed that Brilliant's account with Victron is significantly past due and that, this past Tuesday, Brilliant requested Victron to agree, in one day and without any explanation or statement of intentions, to a set-off against and compromise of certain accounts receivable." He continued, "we must hereby demand that you immediately provide Victron and us with written assurances of Symmetricom's intention to continue the business relationship with Victron as established by Brilliant, and to assume and to perform all of Brilliant's obligations to Victron upon closing of your transaction, including pending projects. Further, we must demand that you immediately confirm to Victron and us in writing that business representatives of Symmetricom will immediately engage in a face-to-face meeting with business representatives of Victron to discuss currently pending projects and arrange for payment in full for all outstanding invoices." Alternatively, he wrote, if the parties elected to "discontinue the Brilliant product or otherwise disengage with Victron," then Victron would consider the relationship terminated, in which case "all obligations of Brilliant to Victron are immediately due and payable, including all outstanding accounts receivable in the amount of $508,120.07 and all open firm orders for pending projects in the amount of $809,486.95, net of payables to Brilliant in the amount of $308,879.62, for a total amount as of the date of this letter of $1,008,727.40." Further, he wrote, "We have advised Victron to cease all manufacturing for Brilliant products pending satisfaction of the foregoing demands."

We see no evidence from it which it could be rationally inferred that this stumbling block would probably have been removed but for Juniper's intervention with a competing offer. Obviously Victron had a strong incentive to negotiate a resolution satisfactory to Symmetricom, with whom it hoped to continue its previous business relationship with Brilliant. And Symmetricom of course was interested in acquiring Brilliant's business, or it would never have offered to do so. But as far as we can tell, no attempt was made to show that Symmetricom's willingness went so far as to assume responsibility to discharge the obligations asserted in the Victron demand letter. Nor do we see any evidentiary basis for a finding that Victron might have reduced its demands to a level that Symmetricom would have found acceptable. Such evidence as there is indicates that this was a major obstacle to closing and that no concrete solution to it had been devised when the Symmetricom deal was superseded by Juniper's intervention.

On the contrary, the evidence showed that after Victron's demand letter was circulated among participants in the Symmetricom transaction, Spencer wrote to Brilliant's Ladd, "This is a big problem. Your disclosure schedule says $180K owed to Victron." About two hours later, Ladd sent an e-mail to various Brilliant principals memorializing a telephone conversation he had just completed with Spencer: "They are 'gravely concerned' about the magnitude of the expressed Victron liabilities . . . . [¶] Justin [Spencer] will email me their concerns and associated Victron close requirement in an email. He also said that others at SYMM, based on this issue, were thinking they should cancel the APA [i.e., asset purchase agreement] as three days have pas[sed] but that he is not there yet. He indicated that this would probably take multiple days to address." (Italics added.)

We see no concrete suggestion, then or now, as to how the Victron issue might have been, let alone probably would have been, satisfactorily resolved. On February 18, unaware that Brilliant had sold its assets to Juniper, Spencer wrote to Ladd with ideas on how some remaining conditions might yet be addressed. With respect to Victron, he wrote that (1) its demands still "need[ed] to be resolved"; (2) he "wonder[ed]" if this might be "addressed quickly" by having Ladd "call the CEO at Victron"; (3) Symmetricom would still require a written "notice," presumably to memorialize the resolution of the issue; and (4) Victron had a motive to resolve the issue because "[t]here is a future revenue stream with Symmetricom that I'm sure they'd be interested in." Presumably the underlying hope was that the proposed call would yield a payoff figure that was satisfactory to all three parties—Victron, Symmetricom, and Brilliant. Nothing in this record, however, would permit a trier of fact to assess the likelihood that such a call would have succeeded in yielding such a figure or otherwise resolving the issue. Spencer's message really expressed little more than the naked hope that the suggested phone call would resolve the issue. Naked hope is no basis for a prognostication sufficient to sustain the imposition of liability.

Nor was the Victron payoff the only outstanding issue. Spencer listed more than 15 conditions that remained to be fulfilled as of February 16, the agreed closing date. Some of these appear relatively trivial, such as Brilliant's own execution of necessary documents. Others required action by third parties, such as consents to assignment, contractor agreements, and the aforementioned "[w]ritten acknowledgement from the key suppliers." The jury could not simply assume that these conditions were going to be satisfied. There had to be some evidence—substantial evidence—on which such a finding could rationally be based.

We recognize that so far as the record shows, in the absence of Juniper Brilliant's only apparent alternative to the Symmetricom buyout would have been some form of liquidation, presumably through either a bankruptcy proceeding or an assignment for the benefit of creditors. But we cannot simply assume that this would compel Brilliant—or more accurately, the members of its board, who were presumably also among its chief investors—to accept whatever terms Symmetricom might choose to dictate. At some point the Symmetricom deal would become less attractive to them—or at least, no more attractive—than a straight liquidation, in which either a bankruptcy trustee or an assignee would sell Brilliant's remaining assets and apply the proceeds to its outstanding debts. The record provides no means whatever to gauge the desirability of such a process by comparison to a given price to be paid by Symmetricom—let alone what price Symmetricom might be willing to pay if, for example, Victron's demands could not otherwise be accommodated. The only evidence we see even touching on that question suggests that when Symmetricom reduced the price it was willing to pay from $5.8 million to $3.5 million—with a potential additional earn-out that was described without contradiction as illusory—the deal was already at a point where any further reduction in the sum to be realized by Brilliant would prevent its consummation. Symmetricom had initially dropped the price to $2.5 million, at which point Barry had induced the addition of $1 million, plus the earn-outs, by telling Symmetricom that "at the lower price . . . it wasn't very interesting to do." This is the only evidence we find in the record concerning the break point at which Brilliant's owners might have chosen to take their chances with liquidation rather than sell to Symmetricom.

Barry testified that by February 16, 2011, he had already become "fearful that no deal would get done by either party." In a message after the sale to Juniper, written as a sort of testimonial to the role of Gary Franklin in "foster[ing]" that sale, Barry wrote that Symmetricom had been "dillying and dallying" and that if not for Franklin's efforts, he feared "the Juniper deal would not have been done and . . . Symmetricom would have lowered the price." But he testified that this understated his real fear, which he implied was shared by others, that if the Juniper deal had not gone through, "the Symmetricom deal would not have been done and [Brilliant] would have had to go bankrupt." In contrast to this clearly expressed pessimism about the Symmetricom deal's chances, the record contains no indication that by the time Juniper intervened, anyone was confident the deal would have been consummated.

The weakness of Alcatel's showing on this point is reflected in the fact that counsel's argument to the jury on the issue of causation focused not on the failure of the Symmetricom transaction but on Juniper's failure, after it bought Brilliant's assets, to perform Brilliant's obligations to Alcatel. In his initial jury argument counsel said, "[T]he final element we need to show is that Juniper's conduct was a substantial factor in causing Alcatel harm, a substantial factor. Doesn't have to be the only factor. But it needs to be substantial. I would submit to you that we made very clear that it is the only factor we know about. We know for a fact that Juniper's decision not to assume the contract, not to support it and not to put the code in escrow . . . was a critical factor, a substantial factor in the disruption of harm that was caused."

Defense counsel framed the issue more appropriately, asking whether Juniper's acquisition of the assets was a "cause of harm. Did that prevent performance or was Brilliant really at that point never going to be performing anything?" Later he answered his own question, saying, "[T]he evidence in this case is that that harm was going to occur without anything that Juniper did . . . ."

But the act that interfered with the Brilliant contract—by depriving Brilliant of the means to perform it—was Juniper's purchase of Brilliant's assets. Plaintiff made no attempt to establish, and we see no basis on which it could have established, a duty by Juniper to assume that contract. In the absence of such a duty, Juniper's post-acquisition conduct appears relevant only as it might supported an inference that Juniper may have had an unwholesome motive in purchasing the assets. Such a motive may have been relevant to the interference element of the tort, but it had no bearing on causation. (See Rest.2d, Torts, §§ 766, 767; Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1163, fn. 12.)

Accordingly, the trial court did not err in granting judgment NOV in favor of Juniper. As previously noted, this renders academic the question whether the court erred in granting a new trial.

III. Cross-Appeal: Denial of Some Special Deposition Costs

As the prevailing party below, Juniper filed a memorandum of costs in the total amount of $112,478.96. Alcatel moved to tax certain of the claimed costs, including part of the $86,840.26 claimed for deposition-related expenses. Alcatel asserted that a substantial part of this sum was unexplained or unnecessary. It pointed to sums attributed only to "[t]aking" several depositions, but which were separate from and additional to sums claimed for "Transcribing," "Travel," and "Videotaping." It sought to reduce the cost award by $19,649.50 on this account. It also contended that the cost bill included an outsized claim for "Transcribing" two of the depositions by comparison to the cost of the other depositions. It moved to reduce the claim by $3,000 to bring these items in line with the others. It also sought to tax by one-half a travel claim of $3,451.00 to conduct a one-day deposition in Atlanta to which Juniper had sent two attorneys.

In opposition to the motion to tax, Juniper filed an itemization of the "Taking" costs for depositions. These included charges, on some depositions, for one or more of the following: "Rough ASCII," "Real Time Feed," "Real Time & Rough," "Streaming Text Only," "Laptop Rental for Real Time," "Digital Transcript/Exhibits."

The trial court granted the motion to tax costs with respect to (1) $7.659.50 attributable to "real-time, streaming, and rough draft charges for depositions prior to December 23, 2012"; and (2) "airfare in the amount of $1,196.20 for one attorney to travel to the deposition" in Atlanta. In all other respects the motion to tax was denied.

Alcatel filed a separate appeal (No. H041259) from this order, but has presented no specific claim of error and no argument for reversing it. The appeal must therefore be deemed abandoned in its entirety. (See Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7, review denied.) However, Juniper filed a timely notice of cross-appeal, in support of which it contends that the court abused its discretion insofar as it struck the claimed deposition costs. Of course, the abandonment of an underlying appeal does not defeat an unconditional cross-appeal. (See, e.g., Comstock v. Comstock (1981) 116 Cal.App.3d 481, 484; cf. Gonzales v. R. J. Novick Constr. Co. (1978) 20 Cal.3d 798, 803-804.) We therefore address Juniper's objections to the order taxing costs.

At the hearing on the motion to tax, counsel for Juniper explained these charges as follows: "[A] majority of the depositions taken in this case were taken within the last month or month and a half prior to trial, so a lot of these depositions were taken over the series of just a couple of weeks at the end of December, and we started trial in January. So given the court reporter's schedule, it's hard to know sometimes when you're going to get the full transcript back, and so we had requested rough transcripts to be able to prepare for trial, to be able to do our pretrial briefing, and so we believe that it was reasonable and necessary to get those advance copies of the transcripts." The court concluded that this rationale was "logical," but ruled that "outside of a 30-day time frame, [these items] would be disallowed." The court directed counsel to "meet and confer" to determine exactly which costs this cutoff affected. Counsel apparently did so, leading to the order now under review.

Reduced to its essentials, Juniper's argument is that the court, having approved the overall justification for costs of this type, could not in the exercise of a sound discretion limit their recovery to the 30 days preceding trial. We cannot agree. The claimed justification was that the imminence of trial justified having immediate access to a draft text of the transcribed testimony. Imminence is not an absolute quantity. Its sufficiency as good cause for a claimed expenditure is the kind of determination that falls within a necessarily discretionary zone. It is an example of "a kind of arbitral power, not unlike that of a baseball umpire," which trial courts must exercise "in the name of judicial economy." (See Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1222 (conc. opn. of Rushing, J.).) "This function recognizes that on certain issues, the trial court's ruling should stand simply because the social cost of questioning it outweighs the private benefit of having a reviewing court substitute its views for those of the trial court." This is the kind of call the trial court was required to make. We cannot say—even with instant replay—that it got the call wrong. The order taxing costs cannot therefore be held an abuse of discretion.

DISPOSITION

In Number H040819, the judgment is affirmed. Respondent Juniper will recover its costs.

In Number H041259, the order taxing costs is affirmed. Each party will bear its own costs.

/s/_________

RUSHING, P.J. I CONCUR: /s/_________

PREMO, J. I CONCUR IN THE JUDGMENT ONLY: /s/_________

GROVER, J.

Alcatel-Lucent USA, Inc. v. Juniper Networks, Inc.

Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

BACKGROUND

DISCUSSION

DISPOSITION

Alcatel-Lucent USA, Inc. v. Juniper Networks, Inc.

Alcatel-Lucent USA, Inc. v. Juniper Networks, Inc.

Case Details

Citations

Alcatel-Lucent USA, Inc. v. Juniper Networks, Inc.

Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

BACKGROUND

DISCUSSION

DISPOSITION

Alcatel-Lucent USA, Inc. v. Juniper Networks, Inc.

Alcatel-Lucent USA, Inc. v. Juniper Networks, Inc.

Case Details

CitationsCopy Citation

Citations