Opinion
B297123
04-20-2021
INSTANT INFOSYSTEMS, INC., Plaintiff, Cross-defendant and Appellant, v. OPEN TEXT, INC., Defendant, Cross-complainant and Appellant.
Vedder Price, James V. Garvey and Deborah A. Hedley, for Defendant, Cross-complainant, and Appellant. Ervin Cohen & Jessup, Barry MacNaughton, Allan B. Cooper, and Amy S. Russell, for Plaintiff, Cross-defendant, and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC619405) APPEAL from a judgment of the Superior Court of Los Angeles County, Samantha P. Jessner, Judge. Affirmed in part, reversed in part, and remanded with directions. Vedder Price, James V. Garvey and Deborah A. Hedley, for Defendant, Cross-complainant, and Appellant. Ervin Cohen & Jessup, Barry MacNaughton, Allan B. Cooper, and Amy S. Russell, for Plaintiff, Cross-defendant, and Appellant.
Instant InfoSystems, Inc. (Instant Info) contracted with Open Text, Inc. (OpenText) to sell and provide technical support for OpenText's software. OpenText later terminated the contract, which prompted Instant Info to sue and OpenText to counter-sue. A jury found for Instant Info on a cause of action for money had and received. But the jury also found for OpenText on a claim for breach of contract (relating to unpaid invoices) and on one of two causes of action seeking redress for Instant Info's unauthorized access of OpenText's databases. That unauthorized access verdict, however, was later overturned by the trial court on a motion for judgment notwithstanding the verdict. OpenText asks us to decide whether Instant Info's common count for money had and received fails as a matter of law, whether substantial evidence supports the jury's verdict on two claims, and whether a jury instruction and evidentiary rulings concerning the unclean hands doctrine warrant reversal. Instant Info asks us to decide whether the judgment and post-judgment rulings regarding the unauthorized access causes of action are correct.
I. BACKGROUND
A. Instant Info and OpenText's Business Relationship
Since the 1990s, Instant Info has specialized in selling and providing technical support for fax software. One such software product, RightFax, allows users to send and receive faxes on their computers without a fax machine. Working in partnership with RightFax's original developers and subsequent owners, Instant Info sold the RightFax software, backed by Instant Info's technical support services, to third parties.
OpenText acquired RightFax in 2008. Beginning in April 2014, the relationship between Instant Info and OpenText was governed by the OpenText Partner Master Agreement (Master Agreement). The Master Agreement complements two other documents pertinent to this case: OpenText's Authorized Support Provider Program Guide (Program Guide) and the terms of use of its Knowledge Center, a secure online database housing patches, upgrades, and technical notes for the RightFax software.
Instant Info sold two different technical support options to RightFax users: "standard" plans that were handled by Instant Info support staff and "direct" plans handled exclusively by OpenText support staff. Instant Info handled approximately 90% of service calls without assistance from OpenText. These "Level 1" and "Level 2" service calls, as defined in the Program Guide, comprised requests for diagnostics and troubleshooting.
In handling more complex "Level 3" service calls, which involved addressing product bugs or other issues requiring manufacturer input, Instant Info support staff would contact OpenText support staff. Only Instant Info staff—not the users who subscribed to standard plans—interacted with OpenText support staff in these cases.
OpenText's assistance in Level 3 cases was provided pursuant to customer-specific maintenance agreements, which allowed Instant Info to access OpenText's Knowledge Center database. Each maintenance agreement was effective for a specific time period, typically one year. Instant Info purchased the maintenance agreements by sending purchase orders to OpenText, and OpenText would respond by sending invoices to Instant Info. Instant Info paid these invoices from its general funds.
The Master Agreement between OpenText and Instant Info gives either party the right to terminate the agreement with 30 days' notice to the other. On October 1, 2015, OpenText gave notice it would terminate the agreement, and it became inoperative 30 days later on October 31, 2015.
On the day it gave termination notice, OpenText contacted Instant Info's customers by letter and phone. OpenText told the customers it would be taking over providing their support services at no additional cost. In at least one case, OpenText also stated Instant Info would no longer have access to OpenText materials, "which [would] severely limit [Instant Info's] ability to provide [t]echnical support." Instant Info continued to send purchase orders for maintenance agreements during the notice period, but OpenText rejected these orders and instructed Instant Info to submit orders for OpenText direct support.
Beginning on November 1, 2015, OpenText no longer responded to Instant Info's Level 3 support calls, regardless of whether the term of a specific maintenance agreement extended beyond that date. OpenText also refused Instant Info access to the Knowledge Center pursuant to maintenance agreements that extended beyond October 31, 2015.
Although OpenText had terminated the Master Agreement and deactivated Instant Info's Knowledge Center credentials, OpenText did give Instant Info employee Matthew Penner (Penner) Knowledge Center credentials to provide support to Zoetis, a RightFax end-user and Instant Info technical support customer. Penner shared the Zoetis credentials with other Instant Info employees, "let[ting] everyone know that we have [K]nowledge [C]enter access again through Zoetis."
Zoetis terminated its relationship with Instant Info in July 2016. Someone—OpenText suspected Instant Info—continued to access the Knowledge Center using the Zoetis credentials until they were deactivated in May 2017. OpenText employee Ryan Long (Long) reviewed activity related to the Zoetis credentials and found they were used to access Knowledge Center resources thousands of times from several different states between November 2015 and May 2017.
Long also reviewed Instant Info emails and found, for example, "articles or links to items in the Knowledge Center" that were accessed using the Zoetis credentials on the same date.
B. Litigation
1. Complaint, cross-complaint, and summary adjudication
In May 2016, Instant Info sued OpenText and OpenText filed a cross-complaint. Instant Info, in its second amended complaint (the operative complaint), asserted causes of action for breach of contract, intentional interference with contractual relations, unfair business practices, and money had and received. OpenText, in its first amended cross-complaint (the operative cross-complaint), asserted causes of action alleging improper access of its Knowledge Center database including a breach of contract claim and claims under the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030) and the California Comprehensive Computer Data Access and Fraud Act (California Act) (Pen. Code, § 502).
The trial court granted a motion for summary adjudication OpenText filed regarding Instant Info's causes of action for breach of contract, intentional interference with contractual relations, and unfair business practices (i.e., every cause of action other than the common count for money had and received). As we later discuss, the trial court's reasoning with respect to the breach of contract cause of action figures significantly in this appeal. The court identified three potential bases of liability: (1) OpenText's refusal to provide Level 3 assistance pursuant to maintenance agreements that extended beyond the date on which the Master Agreement was terminated; (2) OpenText's refusal to give Instant Info Knowledge Center access pursuant to the same maintenance agreements; and (3) OpenText's communications to Instant Info's customers concerning Instant Info's purported inability to continue to provide RightFax technical support. The trial court found the first two theories failed as a matter of law because the maintenance agreements did not alter the termination provision in the Master Agreement. The third failed, in the trial court's view, because there was no evidence Instant Info suffered any damage as a result of the complained-of representations to customers.
2. Trial, verdict, and post-trial motions
After a trial, the jury returned a mixed verdict. The jury found for Instant Info on its common count for money had and received (the sole claim to survive summary adjudication) and awarded $1,854,914 in damages plus $556,982 in prejudgment interest. As to OpenText's cross-complaint, the jury found Instant Info liable for breach of contract based on invoices that went unpaid and awarded $313,100 in damages plus $164,377 in prejudgment interest. The jury also found for OpenText on its CFAA cause of action and awarded $5,000 in investigation costs.
The jury returned defense verdicts on the remainder of OpenText's cross-claims (for violation of the California Act, breach of contract based on Instant Info's use of OpenText's intellectual property, breach of the Knowledge Center terms of use, breach of the implied covenant of good faith and fair dealing, conversion, and fraud).
OpenText thereafter filed a motion for judgment notwithstanding the verdict (JNOV) and for a new trial on various issues. The trial court granted OpenText's JNOV motion on the California Act cause of action (on which the jury had returned a defense verdict) and ordered a new trial on damages only. The court reasoned the same undisputed evidence that established unauthorized access for purposes of CFAA liability also established unauthorized access for purposes of California Act liability. The trial court believed a new trial on damages was warranted because the California Act "[a]rguably . . . provides the opportunity for greater recovery than the CFAA." The trial court denied OpenText's post-trial motions in all other respects.
II. DISCUSSION
OpenText's appeal presents three issues for decision. OpenText argues Instant Info's common count for money had and received fails as a matter of law because it is merely an alternative theory for obtaining the same relief it sought in its cause of action for breach of the Master Agreement, which the trial court summarily adjudicated OpenText's favor. We hold to the contrary: The viability of the money had and received claim turns on OpenText's lack of any obligation to provide services for which Instant Info paid in advance, and Instant Info was the intermediary between OpenText and RightFax users for Instant Info's own benefit. As to OpenText's contention that it is entitled to a new trial on its breach of contract cause of action, the trial court properly concluded OpenText did not prove Instant Info obtained a non-speculative benefit from continuing to access the Knowledge Center; the investigation costs OpenText incurred were recouped under an alternative theory: violation of the CFAA. Finally, the trial court's instruction on unclean hands correctly stated the necessary relationship between unclean hands evidence and the subject matter of the litigation and the court did not abuse its discretion in admitting relevant evidence concerning OpenText's conduct prior to its termination of the Master Agreement.
The trial court denied OpenText's motion for a new trial based on inadequate damages on its causes of action for violation of the CFAA and breach of contract relating to unpaid invoices. OpenText does not challenge these rulings on appeal, except to the extent that it argues it is entitled to a new trial or additur on the breach of contract claim if we reverse the trial court's denial of its motion for JNOV on Instant Info's claim for money had and received. Because we affirm the trial court's denial of OpenText's motion for judgment notwithstanding the verdict, this prerequisite is not satisfied.
As to Instant Info's cross appeal, we need resolve only one of the issues presented. The trial court correctly granted OpenText's JNOV motion on the California Act claim because Instant Info's access to the Knowledge Center that was unauthorized or exceeded the authorization given for purposes of the CFAA was also "without permission" for purposes of the California Act. But because we do not believe OpenText might be entitled to more relief under the California Act than the $5,000 already awarded on its CFAA cause of action, we will reverse the order granting a new trial on damages. As Instant Info agrees, this holding makes it unnecessary to address its arguments concerning the trial court's summary adjudication of its causes of action for breach of contract, intentional interference with contractual relations, and unfair business practices, which we deem waived.
A. OpenText's Appeal of the Orders Denying Its Motions for Judgment Notwithstanding the Verdict and for a New Trial as to Instant Info's Common Count for Money Had and Received
"A common count is not a specific cause of action . . . ; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness . . . ." (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 (McBride).) "To prevail on a common count for money had and received, the plaintiff must prove that the defendant is indebted to the plaintiff for money the defendant received for the use and benefit of the plaintiff. [Citations.]" (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 230 (Rutherford).) "A claim for money had and received can be based upon money paid by mistake, money paid pursuant to a void contract, or a performance by one party of an express contract. [Citations.]" (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958.) In the latter case—an action based on an express contract—a claim for money had and received requires a failure of consideration. (Rutherford, supra, at 230.)
OpenText contends Instant Info's common count for money had and received fails as a matter of law and, in the alternative, the verdict is not supported by substantial evidence. As we now explain, both arguments lack merit.
1. The common count for money had and received does not fail as a matter of law
As a general matter, "[w]hen a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts," the common count "must stand or fall with" the other cause of action. (McBride, supra, 123 Cal.App.4th at 394-395.) Although Instant Info's causes of action for breach of contract and money had and received are based on the same facts, the theories of recovery are not the same—as OpenText argues to win reversal. To the contrary, the common count is viable only because the cause of action for breach of contract fails.
Instant Info alleged breach of contract on several theories, including the theory that OpenText failed to provide Level 3 technical support and Knowledge Center access pursuant to maintenance agreements that extended beyond termination of the Master Agreement. In its order granting OpenText's motion for summary adjudication of this cause of action, the trial court emphasized the Master Agreement expressly stated Instant Info was to "cease use of all [OpenText] Products" immediately upon termination of the Master Agreement. The trial court found this provision precluded any post-termination obligation to provide Level 3 support or Knowledge Center access, and maintenance agreements that purported to create such an obligation were void.
Paragraph 11.16 of the Master Agreement provides that "[a]ny purchase order terms which purport to amend or modify the terms of this Agreement, or which conflict with this Agreement, are void."
Instant Info's common count for money had and received does not rest on this same theory. As the trial court explained, Instant Info's common count was not based on OpenText's failure to provide post-termination services but on "OpenText's inability to retain payments for years' worth of future services." In other words, OpenText's refusal to provide post-termination services and access did not constitute a breach because it was consistent with the termination provisions of the Master Agreement. But nothing in the Master Agreement entitled OpenText to retain payments received for post-termination service and access, so these funds were subject to return via a claim for money had and received.
In arguing the contrary, OpenText cites the general principle that claims for breach of contract and money had and received should stand or fall together (McBride, supra, 123 Cal.App.4th at 394-395), but that principle does not apply in these circumstances. Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1 (Zumbrun) helps explain why.
In that case, the plaintiff college student sued her university when a professor's strike resulted in a course ending weeks ahead of schedule. (Zumbrun, supra, 25 Cal.App.3d at 7.) The plaintiff's complaint alleged breach of contract and a common count for money had and received. (Id. at 10, 14.) The Court of Appeal held the claim for money had and received was "subject to the rule that 'if [the] plaintiff is not entitled to recover under one count in a complaint wherein all the facts upon which his demand is based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is obviously based on the set of facts specifically pleaded in the other count.' [Citation.]" (Id. at 14.) But the Court of Appeal also emphasized "there might be a sum due as a rebate which was had and received for [the] plaintiff's use"—though this sum would be "a far cry" from the total $65,518 the plaintiff in that case sought. (Id. at 15.) Unlike Instant Info here, which sought at least $1,850,000 in contract damages but exactly $1,853,113.39 in money had and received, the plaintiff in Zumbrun sought the very same relief on the very same theory in her claims for breach of contract and for money had and received.
Other authorities on which OpenText relies, which just reflect straightforward applications of the general rule (Shvartz v. Budget Group, Inc. (2000) 81 Cal.App.4th 1153, 1160; Cal. Med. Assn., Inc. v. Aetna U.S. Healthcare of Cal., Inc. (2001) 94 Cal.App.4th 151, 172, fn. 26; Harris v. Kessler (1932) 124 Cal.App. 299, 303; Maselli v. E.H. Appleby & Co. (1953) 117 Cal.App.2d 634, 637-638), are unavailing here.
While Zumbrun provides a good factual contrast, Rutherford even more directly supports the trial court's reasoning. In that case, the plaintiff paid a deposit pursuant to a real estate contract, the Court of Appeal held (for purposes of demurrer) that the seller's failure to transfer the deed resulted in a failure of consideration, and the plaintiff was permitted to seek a refund of the deposit by way of a common count for money had and received. (Rutherford, supra, 223 Cal.App.4th at 230.) Here, Instant Info's payments for Level 3 support and Knowledge Center access extending beyond November 1, 2015—the effective date of termination—were made in consideration of OpenText maintaining their contractual relationship and providing service and access consistent with its terms. OpenText's termination of the Master Agreement resulted in a failure of consideration for these payments and the Rutherford case, which we find persuasive, supports the viability of a money had and received claim in this scenario.
OpenText contends Rutherford is inapposite because Instant Info alleged, at most, only a partial failure of consideration. OpenText analogizes this case to Brown v. Grimes (2011) 192 Cal.App.4th 265 (Brown), in which the Court of Appeal observed a claim for money had and received requires a total failure of consideration and held there was no basis for recovery under a common count because the funds paid by a complaining attorney bore "no relationship" to any damages he suffered. (Id. at 282.) Here, however, there is a direct relationship between Instant Info's payment for service and access for a definite period and OpenText's decision not to provide service and access during that period. Even in Brown, the Court of Appeal conceded a claim for money had and received might properly lie in a case involving a partial failure of consideration so long as "'the partial failure is as to a precise and definite part which is capable of being ascertained by computation.' [Citation.]" (Ibid.)
OpenText also contends Instant Info should not have been permitted to maintain a claim for money had and received based on a failure of consideration while also pursuing damages based on a breach of contract. But the trial court's summary adjudication of Instant Info's claim for breach of contract prevented Instant Info from pursuing these inconsistent theories at trial. Relatedly, OpenText also cites Jalali v. Root (2003) 109 Cal.App.4th 1768 for the proposition that "'[u]ntil an express contract is avoided,' there cannot be an implied contract, which is 'essential to an action on a common count.' [Citation.]" (Id. at 1783.) The issue in Jalali was that the plaintiff had received benefits under an express contract. (Ibid.) Here, by contrast, OpenText does not contend Instant Info enjoyed benefits under maintenance agreements extending beyond October 31, 2015.
2. The common count for money had and received is supported by substantial evidence
OpenText moved for JNOV and a new trial arguing that substantial evidence did not establish it received money for the use and benefit of Instant Info—as opposed to Instant Info's customers—as required to support a claim for money had and received. (Rutherford, supra, 223 Cal.App.4th at 230.) "'In passing upon the propriety of a judgment notwithstanding the verdict, appellate courts view the evidence in the light most favorable to the party who obtained the verdict and against the party to whom the judgment notwithstanding the verdict was awarded. [Citations.] In other words, we apply the substantial evidence test to the jury verdict, ignoring the judgment.' [Citation.]" (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 227.) Although we review the order partially denying OpenText's motion for a new trial for abuse of discretion, we review the trial court's factual determinations for substantial evidence. (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 514, fn. 7.)
Instant Info argues the denial of a motion for a new trial is ordinarily not appealable (Code Civ. Proc., § 904.1, subd. (a)(4)) and contends we must construe the appeal as an appeal from the judgment. But "it is well established that a party seeking a new trial on all issues is an 'aggrieved party' when only a partial new trial is granted, and may appeal therefrom." (Liodas v. Sahadi (1977) 19 Cal.3d 278, 285.) It does not matter that OpenText did not move for a new trial on all issues. The principle permitting appeal of a partial denial of a motion for a new trial (see generally Spencer v. Nelson (1947) 30 Cal.2d 162, 164) applies with equal force regardless of whether the appellant moved for a new trial on all or only some issues.
The evidence at trial established Instant Info paid for maintenance agreements from its general funds. Until OpenText terminated the Master Agreement, Instant Info's customers interacted only with Instant Info, whose support staff accessed the Knowledge Center as necessary and contacted OpenText regarding Level 3 issues on the users' behalf. OpenText argues Instant Info merely passed the users' money along to OpenText for the users' benefit, but substantial evidence supports the jury and trial court's conclusion that Instant Info purchased maintenance agreements with its own funds for its own benefit.
OpenText highlights testimony by Instant Info's CEO, David Klein (Klein), acknowledging in general terms that Instant Info purchased maintenance agreements "for the benefit of the RightFax consumer." The jury could reasonably interpret such testimony, however, as acknowledging Instant Info purchased maintenance agreements for the benefit of RightFax end-users only to the extent that they were Instant Info customers. In other words, Instant Info purchased these maintenance agreements to support its customers' use of RightFax—not its own use of RightFax—but Instant Info occupied this position as intermediary for its own gain.
OpenText's contention that it "ensured that customers received the support they'd purchased" after it terminated the Master Agreement proves nothing about the relationship between OpenText and Instant Info's customers before that agreement was terminated. There was evidence on which the jury could reasonably rely to conclude OpenText was not contractually obligated to work with these users but accommodated them in order to secure their future business. Similarly, OpenText's contention that Instant Info's purchases were "specifically earmarked" for individual customers does not prove Instant Info was a mere conduit. Again, there was evidence OpenText linked Instant Info's maintenance agreements to specific Instant Info customers to ensure that Instant Info paid OpenText fees commensurate with its own revenues and proportionate to the services to be provided. In other words, this was how OpenText prevented Instant Info from running its business on a single Knowledge Center password—as OpenText alleges Instant Info did with the Zoetis credentials.
OpenText compares this case to Avidor v. Sutter's Place (2013) 212 Cal.App.4th 1439 (Avidor), but insofar as this case is analogous to Avidor, the analogy does not aid OpenText. OpenText suggests that, "[a]s in Avidor, the money that passed through [Instant Info] to OpenText was not for [Instant Info]'s benefit." But the import of Avidor is not that customers' tips "passed through" dealers. The dealer plaintiff's claim for money had and received failed because dealers contributed their own money received as tips to the tip pool for the use and benefit of other casino employees. (Ibid.) Here, Instant Info purchased maintenance agreements from its general funds to serve its own end of providing technical support to RightFax users. OpenText's position that any business expense that enables Instant Info to provide technical support to its customers is ultimately for the use and benefit of Instant Info's customers is flawed in the same manner as the plaintiff's view in Avidor that dealers pooled their tips for the use and benefit of casino patrons.
In a related vein, OpenText contends Instant Info was unjustly enriched by its recovery on the common count for money had and received because Instant Info "already received full payment from RightFax users for services from [Instant Info] and OpenText." Again, OpenText mischaracterizes the relevant transactions. Instant Info's customers paid for services from Instant Info, and Instant Info paid for services from OpenText. There is no legal or factual basis to treat these two transactions as one.
B. OpenText's Appeal of the Order Denying Its Motion for a New Trial on Its Cause of Action for Breach of Contract Relating to Instant Info's Post-Termination Use of the Knowledge Center
"[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. [Citation.]" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
Although a plaintiff may recover nominal damages for breach of contract absent actual damages (Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal.App.5th 1, 15), OpenText did not request an instruction on nominal damages.
Instant Info's use of the Knowledge Center was governed by the Master Agreement and the Knowledge Center terms of use. These provided, respectively, that Instant Info was to cease its use of materials stored in the Knowledge Center upon termination of the Master Agreement and that any person accessing the Knowledge Center may use the information contained therein "only as expressly authorized by OpenText, in order to perform his/her duties as an employee of OpenText, or as set forth in any . . . agreement." Although Instant Info maintains OpenText did not prove Instant Info used the Knowledge Center in violation of these provisions, there is no serious question that OpenText proved unauthorized access at trial. The jury found for OpenText on its CFAA cause of action, and the trial court correctly ruled OpenText was entitled to JNOV on its California Act cause of action. Nonetheless, the jury found for Instant Info on OpenText's cause of action for breach of contract based on post-termination Knowledge Center access.
In its motion for a new trial, OpenText argued there was insufficient evidence to support the verdict for Instant Info on OpenText's breach of contract cause of action because "the evidence irrefutably established that after termination, Instant Info employees used Mr. Penner's Zoetis Knowledge Center credentials to generally provide support to Instant Info's customers using OpenText's intellectual property." The trial court denied the motion without discussing this evidence because, regardless of whether Instant Info accessed the Knowledge Center without authorization, OpenText failed to "demonstrate there was any evidence by which the jury could establish a non-speculative value for the extent of Instant Info's post-termination access" of the Knowledge Center.
OpenText contends the jury's finding that OpenText incurred investigation costs for purposes of the CFAA cause of action satisfies the damages element of its cause of action for breach of contract. Indeed, OpenText argues the jury's verdicts on these causes of action are inconsistent. But OpenText is not entitled to a new trial to recover damages it was already awarded under a different theory. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 702 (Roby) ["'Regardless of the nature or number of legal theories advanced by the plaintiff, he is not entitled to more than a single recovery for each distinct item of compensable damage supported by the evidence'"].) Rather, OpenText's position is that because it satisfied the damages element of its cause of action for breach of contract based on investigation costs, it is entitled to a new trial at which it may once again attempt to prove damages under a different theory—i.e., that Instant Info benefited from its unauthorized Knowledge Center access.
In its reply brief, OpenText suggests it "may" be entitled to greater investigation costs based on breach of contract than under the CFAA. OpenText does not, however, identify any investigation costs it incurred that fall outside of the CFAA's definition of "loss." (18 U.S.C. § 1030(e)(11) ["'loss' means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service"].)
The trial court gave a contract damages instruction based on CACI No. 350. After explaining, among other things, that the purpose of contract damages is to put OpenText "in as good a position as it would have been if Instant Info had performed as promised," the trial court indicated OpenText was seeking damages "for unpaid invoices and interest, the value of the benefit conferred on Instant Info by its continued use of the Knowledge Center after November 1, 2015, and investigative costs."
OpenText contends the instruction should have more clearly explained the purpose of restitution. OpenText did not challenge the CACI No. 350 instruction in its motion for a new trial. There is no merit to OpenText's contention that it may challenge this instruction for the first time on appeal from the denial of its motion for a new trial because it requested a different instruction at trial. (See Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 635 [arguments not raised in motion for new trial not properly raised on appeal from ruling on motion even though they were raised at trial].) In any case, the instruction was clear that the jury could award damages based on the value of the benefit conferred on Instant Info.
In the "Damages" section of the verdict form, the jury was asked to find "the value of the benefit conferred on Instant Info by its continued use of the Knowledge Center since November 1, 2015," if it found for OpenText on its causes of action including breach of contract and violation of the CFAA or the California Act. The jury found the value of any such benefit to be "zero." The jury was also asked to determine the amount of OpenText's investigation costs if it found for OpenText on causes of action including violation of the CFAA and the California Act. The jury awarded OpenText $5,000 in investigation costs.
These findings undermine the new trial breach of contract argument OpenText makes now. The authority OpenText relies on to argue the contrary, Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786 (Grail), is inapposite. The issue in Grail was whether the jury's use of an incorrect measure of damages warranted a new trial using the correct measure of damages or JNOV. The issue here, by contrast, is whether the viability of one damages theory (investigation costs) entitles OpenText to a new trial on a different damages theory (the benefit conferred upon Instant Info). Although OpenText characterizes the issue in this case as "the jury and the [t]rial [c]ourt apply[ing] the wrong measure of damages," this effort to force a comparison to Grail has no merit. OpenText challenges the jury and trial court's conclusion that Instant Info did not benefit from its use of the Knowledge Center after October 31, 2015, but its arguments concern the evidence of such benefit, not the manner in which it is calculated. Grail does not support OpenText's attempt to bootstrap a new trial as to the value of the benefit conferred on Instant Info from a finding that OpenText incurred investigation costs.
OpenText also contends a new trial is warranted because there is insufficient evidence supporting the finding, made by the jury and the trial court, that Instant Info did not benefit from its unauthorized use of the Knowledge Center. OpenText highlights one Instant Info employee's testimony that he accessed the Knowledge Center "close to every day" before the Master Agreement was terminated. Similarly, another Instant Info employee testified he agreed with Instant Info's allegation that OpenText's termination of the Master Agreement "prevent[ed] [Instant Info] from adequately rendering services to its customers because [Instant Info] required access to the Knowledge Center and other support platforms."
OpenText suggests Instant Info cannot consistently argue it did not benefit from Knowledge Center access for purposes of OpenText's breach of contract claim and that Knowledge Center access was crucial to its operations for purposes of its affirmative claims. But the only affirmative claim on which the jury found for Instant Info—its claim for money had and received—had nothing to do with whether Instant Info benefited from Knowledge Center access.
Notwithstanding this testimony, Instant Info personnel also testified that the company was still providing RightFax support at the time of trial—more than a year after it lost the ability to access the Knowledge Center with its own credentials or those associated with Zoetis. And although the jury found Instant Info accessed the Knowledge Center without authorization, it could reasonably find that OpenText failed to prove that all or most of the unauthorized use of the Zoetis credentials was by Instant Info employees. Substantial evidence supports the trial court's conclusion that a new trial was not warranted. (Code Civ. Proc., § 657.)
C. OpenText's Appeal of the Order Denying Its Motion for a New Trial Based on the Jury Instruction and Evidentiary Rulings Concerning Unclean Hands
1. The unclean hands instruction was appropriate
"The [unclean hands] doctrine demands that a plaintiff act fairly in the matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim." (Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978 (Kendall-Jackson).) Conduct supporting an unclean hands defense need not be criminal or an actionable tort. "Any conduct that violates conscience, or good faith, or other equitable standards of conduct is sufficient cause to invoke the doctrine." (Id. at 979.) OpenText's challenge to the unclean hands instruction given in this case concerns the necessary relationship between the alleged misconduct and the parties' dispute.
Both OpenText and Instant Info submitted proposed jury instructions regarding unclean hands. The trial court gave the following instruction: "Both parties assert a defense called 'unclean hands.' A party acts with unclean hands when its conduct is not in good faith, or is unconscionable, or is not otherwise equitable. A party's inequitable conduct in connection with the matter in controversy provides a complete defense to that party's action." OpenText contends that, rather than extending the defense to "conduct in connection with the matter in controversy," the trial court should have restricted its application to conduct directly connected to the parties' claimed injuries.
OpenText proposed the following unclean hands instruction at trial: "[Instant Info] and Open Text each claim as a defense that the other's misconduct precludes the other's recovery on one or more claims. The doctrine of unclean hands is invoked when a litigant seeking damages has violated a duty of good faith or has acted unconscionably in connection with the same subject matter out of which the litigant claims a right to damages. [¶] The party asserting the unclean hands defense must prove that the misconduct relates directly to the subject matter concerning which a particular claim is made. There must be a direct relationship between the misconduct and the claimed injuries. The only conduct on which you may make a finding of unclean hands is that conduct directly related to the subject matter at issue with respect to a particular claim."
Opinions discussing the unclean hands doctrine often discuss a "direct" relationship between the claimed misconduct and the matter in controversy. (See, e.g., Kendall-Jackson, supra, 76 Cal.App.4th at 979 ["The misconduct that brings the unclean hands doctrine into play must relate directly to the cause at issue"]; Fibreboard Paper Prods. Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 728 (Fibreboard) ["The misconduct which brings the clean hands doctrine into operation must relate directly to the transaction concerning which the complaint is made"]; accord Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 680-681 (Peregrine).) But this is not the only means of expressing the principle that "[t]he determination of the unclean hands defense cannot be distorted into a proceeding to try the general morals of the parties." (Kendall-Jackson, supra, at 979.) Indeed, some of the same opinions include alternative formulations that do not include the word "direct." (See, e.g., id. at 980 ["Any unconscientious conduct connected with the controversy before the court was sufficient to warrant application of the unclean hands defense"]; Fibreboard, supra, at 728 [misconduct "must pertain to the very subject matter involved and affect the equitable relations between the litigants"].)
As the Court of Appeal explained in Peregrine, the notion that evidence of unclean hands must be directly related to the plaintiff's causes of action is "overly narrow" and "not supported by case law." (Peregrine, supra, 133 Cal.App.4th at 681.) "The question is whether the unclean conduct relates directly 'to the transaction concerning which the complaint is made,' i.e., to the 'subject matter involved' (Fibreboard, supra, . . . at p. 728 . . .), and not whether it is part of the basis upon which liability is being asserted. [Citation.]" (Ibid.; accord Kendall-Jackson, supra, 76 Cal.App.4th at 986 ["unclean hands goes beyond the justification for filing the malicious prosecution suit; unclean hands concerns the far broader question of a party's misconduct in the matter"].)
OpenText contends the trial court's instruction was incorrect because the phrase "inequitable conduct in connection with the matter in controversy" permits consideration of any act over the course of the parties' long business relationship. But such an expansive reading of the trial court's instruction is foreclosed by its express limitation to "the matter in controversy." OpenText's several preferred formulations (conduct "in connection with the same subject matter out of which the litigant claims a right to damages"; conduct that "relates directly to the subject matter concerning which a particular claim is made"; "conduct directly related to the subject matter at issue with respect to a particular claim") are, at best, more cumbersome ways of expressing the same principle.
2. The trial court did not abuse its discretion regarding unclean hands evidence
Before trial, OpenText and Instant Info stipulated to exclude evidence and argument that OpenText terminated the Master Agreement "for any reason other than OpenText's convenience" pursuant to the terms of the Master Agreement. In a motion in limine filed at the same time, OpenText sought to exclude evidence and argument "regarding any pre-October 1, 2015[] consideration by OpenText of potentially terminating the [Master Agreement]" because Instant Info did not dispute that OpenText had the right to terminate the Master Agreement. Such evidence, OpenText argued, was irrelevant and unduly prejudicial. (Evid. Code, §§ 350, 352.)
October 1, 2015, was the date on which OpenText notified Instant Info it was terminating the Master Agreement.
The trial court denied the motion in limine. The court found OpenText failed to identify the evidence to which it objected and, in the alternative, such evidence would likely be "relevant to whether or not [OpenText] conducted itself in a way such that one could conclude that it had clean hands rather than unclean hands . . . ."
OpenText complains that at trial, Instant Info argued, among other things, that OpenText sought to eliminate its smaller competitor by calling Instant Info's customers before it notified Instant Info it was terminating the Master Agreement and misrepresenting to those customers that it was "tak[ing] over" Instant Info's contracts. OpenText contends such evidence and argument did not support an unclean hands defense because the alleged conduct was "not wrongful, the [trial court] having dismissed all of [Instant Info's] affirmative claims based thereon at the demurrer and summary judgment stages."
As we have already discussed, however, conduct supporting an unclean hands defense need not be actionable. (Kendall-Jackson, supra, 76 Cal.App.4th at 978.) The trial court's conclusion that Instant Info's cause of action for intentional interference with contractual relations failed as a matter of law because Instant Info could not show that any of its customers breached existing contracts with Instant Info did not foreclose an unclean hands defense based on the same facts. Conduct that did not induce Instant Info's customers to breach existing contracts with Instant Info could nonetheless "violate[ ] conscience, or good faith, or other equitable standards of conduct." (Id. at 979.)
OpenText's contention that its activity before termination of the Master Agreement does not directly relate to the same transaction as its affirmative claims also lacks merit. OpenText's insistence that its affirmative claims addressed only Instant Info's post-termination actions is incorrect. For instance, OpenText's cause of action for breach of the implied covenant of good faith and fair dealing was based, in part, on the allegation that Instant Info "fail[ed] to cooperate with [OpenText] in the performance of the contract. . . ." Moreover, even if OpenText's affirmative claims did address only post-termination activity, OpenText's view that the relevant transactions are Instant Info's post-termination access of the Knowledge Center and non-payment of invoices—as opposed to the winding up of the contractual relationship more generally—is artificially narrow. (See Kendall-Jackson, supra, 76 Cal.App.4th at 985 ["any evidence of a plaintiff's unclean hands in relation to the transaction before the court or which affects the equitable relations between the litigants in the matter before the court should be available to enable the court to effect a fair result in the litigation"], italics added.)
OpenText's alternative contention that, even if relevant, the probative value of this evidence was substantially outweighed by the danger of undue prejudice rests largely on the assumption that it has no probative value—i.e., that it is not relevant. As we have already explained, this assumption is incorrect. OpenText also believes the jury may have mistakenly thought unclean hands evidence could be considered in support of Instant Info's common count for money had and received. The trial court's instruction was clear, however, that the doctrine of unclean hands is a defense, and there is no dispute that the jury was properly instructed as to Instant Info's common count for money had and received. We presume the jury followed the trial court's instructions. (People v. Flores (2020) 9 Cal.5th 371, 405.)
Finally, OpenText's suggestion that the jury's confusion is manifest in its "bizarre" verdict fails to connect the purported anomalies to the unclean hands evidence. There is no reason to believe the inconsistency in the jury's findings for OpenText on its CFAA cause of action and against OpenText on its California Act cause of action were influenced in any way by the unclean hands evidence. And, as we have already explained, because the jury's verdict against OpenText on its cause of action for breach of contract based on post-termination access of the Knowledge Center is justified by OpenText's failure to prove damages, this finding is consistent with its finding of unauthorized access under the CFAA.
D. Instant Info's Cross Appeal
Preliminarily, the parties dispute whether this court has jurisdiction to review the trial court's order granting OpenText's motion for JNOV as to its California Act cause of action if we do not reverse the trial court's order granting a new trial and reinstate the judgment. Because we conclude the trial court abused its discretion in granting OpenText's motion for a new trial, our jurisdiction to reach the remaining issues is not in question.
1. Substantial evidence supports the verdict on OpenText's CFAA claim
"The CFAA prohibits acts of computer trespass by those who are not authorized users or who exceed authorized use. It creates criminal and civil liability for whoever 'intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer.' 18 U.S.C. § 1030(a)(2)(C). 'The statute thus provides two ways of committing the crime of improperly accessing a protected computer: (1) obtaining access without authorization; and (2) obtaining access with authorization but then using that access improperly.' [Citation.] The CFAA provides a private right of action for '[a]ny person who suffers damage or loss by reason of a violation of this section.' 18 U.S.C. § 1030(g)." (Facebook, Inc. v. Power Ventures, Inc. (9th Cir. 2016) 844 F.3d 1058, 1065-1066.)
Additional conditions must be satisfied to maintain a civil action under the CFAA. As pertinent here, OpenText was required to prove Instant Info's violation caused a loss of at least $5,000 over any one-year period. (18 U.S.C. §§ 1030(g), 1030(c)(4)(A)(i)(I).) The statute defines "loss" to mean "any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service . . . ." (18 U.S.C. § 1030(e)(11).)
Instant Info contends the judgment for OpenText on OpenText's CFAA claim is not supported by substantial evidence for two reasons: Instant Info was authorized to access the Knowledge Center without restriction and OpenText did not prove a loss of at least $5,000.
Instant Info's first argument rests largely upon OpenText's statement in its opening brief that "Matthew Penner of Instant Info was given Knowledge Center access credentials with a 'zoetis.com' email address . . . for the limited purpose of providing RightFax support to RightFax user Zoetis." Instant Info takes this as an admission that there were no restrictions "on what information in the Knowledge Center could be accessed." Even if it is true that OpenText authorized Penner to access any Knowledge Center resources for any purpose related to its service of Zoetis, substantial evidence supports the conclusion that OpenText did not authorize Penner (much less any other Instant Info employees with whom he shared the Zoetis credentials) to access the Knowledge Center when serving customers other than Zoetis. Instant Info employee Juan Cueva testified he "wouldn't see why [Instant Info] would need to" use the credentials once Zoetis was no longer an Instant Info customer, and OpenText's director of maintenance renewals, Alan MacDonald, testified the Zoetis credentials authorized Instant Info to access the Knowledge Center "for one customer." There was good evidence that Instant Info accessed the Knowledge Center when serving customers other than Zoetis because it continued using the Zoetis credentials when Zoetis was no longer an Instant Info customer.
Because OpenText's CFAA claim targets Instant Info's access of the Knowledge Center as opposed to the manner in which it used Knowledge Center resources, Instant Info's discussion of cases holding the latter is not addressed by the CFAA is inapposite. (See, e.g., LVCR Holdings, Inc. v. Brekka (9th Cir. 2009) 581 F.3d 1127, 1135, fn. 7 [unauthorized "emailing of documents" is not unauthorized access or access exceeding authorization]; Brodsky v. Apple Inc. (N.D.Cal. 2020) 445 F.Supp.3d 110, 129 (Brodsky) ["if a plaintiff authorizes an individual to access the plaintiff's computer, the plaintiff's CFAA claim cannot be based simply on the manner or means by which the individual accesses the computer"]; United States v. Nosal (9th Cir. 2012) 676 F.3d 854, 863 ["If Congress wants to incorporate misappropriation liability into the CFAA, it must speak more clearly"].)
Instant Info's contention that any restriction that depends on the user's purpose is a use restriction outside the ambit of the CFAA rather than an access restriction within the ambit of the CFAA is overly simplistic. Instant Info was prohibited from using the Zoetis credentials to access the Knowledge Center except for the purpose of serving Zoetis, but it was prohibited from using the Zoetis credentials to access the Knowledge Center at all when it no longer had a relationship with Zoetis. Regardless of how the pertinent restriction is framed, the substance of Instant Info's violation is that it accessed the Knowledge Center without permission. (See Craigslist Inc. v. 3Taps Inc. (N.D.Cal. 2013) 942 F.Supp.2d 962, 969 [access restrictions "govern who may access information"].)
Instant Info's remaining argument, that OpenText did not prove at least a $5,000 loss, assumes that much of the time spent by Long, OpenText's employee, and outside counsel analyzing use of the Zoetis credentials is not properly characterized as "the cost of responding to an offense." (18 U.S.C. § 1030(e)(11).) Instant Info construes this statutory phrase narrowly, suggesting the only time needed to respond to its unauthorized use of the Zoetis credentials was "the time to press a button to deactivate" them. According to Instant Info, the overwhelming majority of Long and outside counsel's time is properly characterized as a litigation expense rather than a response to Instant Info's Knowledge Center access.
Litigation expenses, as such, do not satisfy the CFAA's loss requirement. (Mintz v. Mark Bertelstein and Associates Inc. (C.D.Cal. 2012) 906 F.Supp.2d 1017, 1029 (Mintz) ["the litigation expenses in this case do not qualify as a 'loss' under the CFAA"]; Brooks v. AM Resorts, LLC (E.D.Pa. 2013) 954 F.Supp.2d 331, 338 ["litigation costs associated with hiring court reporters and videographers, and obtaining deposition transcripts" are "not a compensable loss under the CFAA because they are not related to investigating or remedying damage to the computer"]; Wilson v. Moreau (D.R.I. 2006) 440 F.Supp.2d 81, 110 ["the costs of litigation cannot be counted towards the $5,000 statutory threshold"].) Costs associated with investigating an intrusion, however, are recoverable as losses under the CFAA under certain circumstances regardless of whether the investigation proves useful in subsequent litigation. (See Multiven, Inc. v. Cisco Systems, Inc. (N.D.Cal. 2010) 725 F.Supp.2d 887, 895 (Multiven) ["Costs associated with investigating intrusions into a computer network and taking subsequent remedial measures are losses within the meaning of the statute"]; Facebook, Inc. v. Power Ventures, Inc. (N.D.Cal. 2017) 252 F.Supp.3d 765, 777 (Facebook 2017) ["attorneys' fees and investigation and enforcement costs are compensable even if [the defendant] was not actively interacting with [the plaintiff's] website at the time the expenses were incurred"].)
Long, a salaried employee of OpenText, testified he earned about $50 per hour and spent about 80 hours analyzing use of Penner's Zoetis credentials—work costing a total of about $4,000. Long searched a database that logs Knowledge Center activity, collected all tasks performed using Penner's Zoetis credentials, and created a spreadsheet summarizing these data. The spreadsheet reflected the dates on which the credentials were used, software downloaded, articles viewed, and other activity.
Long testified that a colleague also spent about 40 hours on this work, but he did not know her salary.
Instant Info suggests Long's work is analogous to efforts to confirm the identity of a hacker for purposes of litigation, which did not constitute a loss for purposes of the CFAA in Mintz, supra, 906 F.Supp.2d at 1030. Although this comparison is apt as to some of Long's work—in particular, his cross-referencing Knowledge Center activity with Instant Info emails produced in discovery—much of his work was related to assessing whether and to what extent the Zoetis credentials were abused. The value of this time is a recoverable loss under the CFAA. (See, e.g., A.V. v. iParadigms, LLC (4th Cir. 2009) 562 F.3d 630, 646 [holding that 18 U.S.C. § 1030(e)(11) is "broadly worded" and "plainly contemplates . . . costs incurred as part of the response to a CFAA violation, including the investigation of an offense"]; SuccessFactors, Inc. v. Softscape, Inc. (N.D.Cal. 2008) 544 F.Supp.2d 975, 981 ["where the offender has actually accessed protected information, discovering who has that information and what information he or she has is essential to remedying the harm"].)
OpenText submitted invoices from outside counsel reflecting several thousand dollars billed for preparing a cease and desist letter to Instant Info regarding Knowledge Center access, creating a chronology of Instant Info's unauthorized access, reviewing spreadsheets relating to Knowledge Center access, and discussing Knowledge Center issues more generally. These expenses, like Long's time, are recoverable losses under the CFAA. (Facebook 2017, supra, 252 F.Supp.3d at 778 ["attorney's fees . . . are compensable as long as those costs were reasonably incurred responding to the offense"]; ibid. [CFAA losses included "$74,690.50 in legal fees to negotiate with [the defendants]"]; Animators at Law, Inc. v. Capital Legal Solutions, LLC (E.D.Va. 2011) 786 F.Supp.2d 1114, 1122 [attorney fees "appear[ed] to be qualifying CFAA losses" because "a jury may conclude that hiring an attorney to investigate the intrusion and oversee the investigation was reasonably foreseeable and reasonably necessary"].)
The jury found OpenText incurred investigation costs in the amount of $5,000—about $10,000 less than the amount OpenText claimed. Substantial evidence supports the jury's finding that, between Long and outside counsel, OpenText incurred reasonable investigation costs in this amount.
2. The CFAA verdict required judgment notwithstanding the verdict on OpenText's California Act claim
A person violates the California Act if, among other things, they "[k]nowingly and without permission access[ ] or cause[ ] to be accessed any computer, computer system, or computer network." (Pen. Code, § 502, subd. (c)(7).) A person also violates the statute if they "[k]nowingly access[ ] and without permission take[ ], cop[y], or make[ ] use of any data from a computer, computer system, or computer network." (Pen. Code, § 502, subd. (c)(2).)
One who "suffers damage or loss by reason of a [California Act] violation . . . may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. Compensatory damages shall include any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access." (Pen. Code, § 502, subd. (e)(1).)
In its order granting OpenText's motion for judgment notwithstanding the verdict as to its cause of action under the California Act, the trial court reasoned as follows: "There is no legally sufficient basis for the jury to have found that Instant Info 'intentionally accessed without authorization or in excess of authorization a computer' and 'obtained information from a computer . . .' as required to state a claim under the CFAA, but had not '[k]nowingly accessed and without permission took, copied, or made use of any data from a computer, computer system, or computer network . . .' as required to prove a cause of action under the [the California Act]." That is right.
Instant Info protests that access without authorization under the CFAA implies access "without permission" under the California Act and access exceeding authorization under the CFAA is not "without permission" for purposes of the California Act. But the plain language of the California Act's prohibitions against accessing a computer system (Pen. Code, § 502, subd. (c)(7)) and making use of specific data therein (Pen. Code, § 502, subd. (c)(2)) without permission encompasses both unauthorized access and access exceeding authorization. (See Multiven, supra, 725 F.Supp.2d at 895 ["the necessary elements of Section 502 do not differ materially from the necessary elements of the CFAA for purposes of this action"]; Brodsky, supra, 445 F.Supp.3d at 131 [same].) Moreover, the authority Instant Info cites for the proposition that the CFAA and the California Act are "different" does not support Instant Info's contention that the conduct constituting a CFAA violation in this case did not also constitute a California Act violation. (United States v. Christensen (9th Cir. 2015) 801 F.3d 970, 994 (Christensen).) The Ninth Circuit in Christensen contrasted the California Act's "focus . . . on unauthorized taking or use of information" with the CFAA's focus on "unauthorized access, not subsequent unauthorized use" based only on Penal Code section 502, subdivision (c)(2). (Id. at 994.) It did not address the California Act's express prohibition against unpermitted access in Penal Code section 502, subdivision (c)(7).
3. The trial court abused its discretion in ordering a new trial on damages
As we have already discussed, the verdict form included two pertinent questions concerning damages based on OpenText's California Act cause of action. If the jury found for OpenText on its causes of action under the CFAA or the California Act, it was asked to determine (1) the value of the benefit conferred on Instant Info by its post-termination use of the Knowledge Center and (2) OpenText's investigation costs. The jury found the value of the benefit conferred on Instant Info to be zero and awarded investigation costs in the amount of $5,000.
The verdict form also included a section on punitive damages. If the jury found for OpenText on its California Act and fraud claims, it was to determine whether an Instant Info officer, director, managing agent, or employee willfully engaged in the offending conduct with malice, oppression, or fraud. The jury did not find for OpenText on either of these causes of action and therefore skipped this question. We do not construe the trial court's order for a new trial on damages under the California Act, premised on Instant Info's liability under the CFAA, as requiring a new trial on Instant Info's liability for punitive damages under the California Act.
In its order granting a new trial on damages under the California Act, the trial court reasoned that the California Act "[a]rguably" provided for greater recovery than the CFAA because it does not define "damage or loss" and allows for the recovery of compensatory damages. Even if that is true in theory, it is not reasonably probable the jury would have awarded OpenText additional damages if it had properly found Instant Info liable under the California Act. The benefit conferred on Instant Info and OpenText's investigation costs were the same whether based on a violation of the CFAA, the California Act, or both statutes. OpenText did not offer evidence of damages available under the California Act but not under the CFAA at the first trial, and it is not entitled to do so at a second. (See Garretson v. Harold I. Miller (2002) 99 Cal.App.4th 563, 575 ["Trial is the one opportunity a party has to present whatever evidence exists on the issues presented. It is not a practice run to be scrapped in favor of a more complete proceeding in the event of an adverse judgment"].) OpenText has already recovered its investigation costs under the CFAA, and it is not entitled to any additional recovery under the California Act. (Roby, supra, 47 Cal.4th at 702.)
4. Instant Info's abandonment of its appeal of the summary adjudication order
The trial court granted OpenText's motion for summary adjudication of Instant Info's causes of action for breach of contract, intentional interference with contractual relations, and unfair competition. In its cross reply brief, Instant Info indicates that it "will waive/abandon its cross-appeal as to the grant of summary adjudication" if the trial court's order granting a new trial as to damages under the California Act were reversed. We have concluded such a reversal is required and we accordingly do not discuss Instant Info's arguments concerning the summary adjudication rulings.
DISPOSITION
The trial court's order granting a new trial as to damages on OpenText's California Act cause of action is reversed. In all other respects, the judgment is affirmed. The matter is remanded for entry of a new judgment consistent with this opinion. All parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J. We concur:
RUBIN, P. J.
KIM, J.