Opinion
D077558 D078129
02-23-2022
GEORG LINGENBRINK, Plaintiff, Cross-complainant and Respondent, v. STEPHEN C. GAMES, Defendant, GRANDE BAHIA DE LOS SUENOS, S.R.L., Intervener, Cross-defendant and Appellant. GEORG LINGENBRINK, Cross-Complainant and Respondent, v. GRANDE BAHIA DE LOS SUENOS, SRL, Cross-Defendant and Appellant.
Fayer Gipson, Gregory A. Fayer and Michelle K. Millard for Intervener, Cross-defendant and Appellant Grande Bahia De Los Suenos S.R.L. Law Offices of Rodney L. Donohoo, Rodney L. Donohoo and Kevin T. Rhine for Plaintiff, Cross-complainant and Respondent, Georg Lingenbrink.
NOT TO BE PUBLISHED
CONSOLIDATED APPEALS from an order and a judgment of the Superior Court of San Diego County, No. 37-2017-00016410-CU-BC-CTL Katherine A. Bacal, Judge. Affirmed in part, reversed in part and remanded with directions.
Fayer Gipson, Gregory A. Fayer and Michelle K. Millard for Intervener, Cross-defendant and Appellant Grande Bahia De Los Suenos S.R.L.
Law Offices of Rodney L. Donohoo, Rodney L. Donohoo and Kevin T. Rhine for Plaintiff, Cross-complainant and Respondent, Georg Lingenbrink.
O'ROURKE, J.
Intervener, cross-defendant and appellant Grande de los Suenos, S.R.L. (Grande) appeals from (1) an order denying its motion for judgment notwithstanding the verdict (JNOV) and (2) a judgment following a jury's special verdict in favor of plaintiff, cross-complainant and respondent Georg Lingenbrink on Lingenbrink's cross-complaint for third party breach of contract. The judgment stemmed from Lingenbrink's action against Stephen Games alleging, among other things, breach of an agreement to provide water at no cost for Lingenbrink's property in Baja California Sur, Mexico (the property). Grande, which had taken over the development where Lingenbrink's property is located, intervened in the action seeking a judicial declaration that no agreement existed between it and Lingenbrink for water delivery. Lingenbrink cross-complained against Grande and its owners and Grande moved to dismiss Lingenbrink's action (or alternatively his cross-complaint) on grounds of an inconvenient forum. On Lingenbrink's claim against Grande for third party breach of contract, a jury made special verdict findings that Grande had entered into a contract with Games to provide water to Lingenbrink's property for an indefinite period of time; that Grande breached the contract on November 1, 2014, and terminated the contract on September 11, 2019; and that Lingenbrink had incurred damages after November 28, 2016 (two years before it filed its cross-complaint), consisting of $507,258 in past damages and $3,008,287 in future damages. The court entered judgment against Grande awarding Lingenbrink $3,515,545 in damages.
On appeal Grande contends: (1) the judgment to the extent it includes $3,008,287 in post-contract-termination losses does not accurately reflect the jury's verdict, such post-contract-termination future damages are not awardable as a matter of law, and a substantial amount of the future losses were speculative and duplicative; (2) Lingenbrink's claims are barred by the statute of limitations; (3) the jury's past loss award includes duplicative and speculative damages as well as damages incurred outside the statute of limitations; (4) there was no substantial evidence that Grande entered into a contract to assume the water obligation; and (5) the trial court abused its discretion by denying Grande's motion to dismiss on grounds of forum non conveniens. We reverse the judgment with respect to the award of $3,008,287 in post-contract-termination damages. In all other respects, the judgment and order are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
When reviewing a judgment following a jury trial, "[w]e state the facts in the light most favorable to the jury's verdict, resolving all conflicts and indulging all reasonable inferences to support the judgment." (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1459, fn. 1; accord, Hirst v. City of Oceanside (2015) 236 Cal.App.4th 774, 778.)
In 1999, Games and another individual purchased via an LLC approximately 2, 000 acres of land in Baja California del Sur, Mexico with other investors, including Lingenbrink's company, International Financial Advisors (IFA). Games and Lingenbrink had both a professional and personal relationship: Games, a realtor, represented Lingenbrink in connection with the purchase and sale of high-end homes; Games held his wedding at one of Lingenbrink's homes; at Games's request Lingenbrink purchased a La Jolla home in order for Games to purchase it back from him; they co-owned yachts though Lingenbrink was never on title; and Lingenbrink extended loans to Games.
Games's intent was to create a high-end development called "Bay of Dreams." He and Lingenbrink met at Lingenbrink's Rancho Santa Fe home where Games asked Lingenbrink to make a nonrefundable $1 million investment in the undeveloped land even though Games could not transfer title to him at the time. Lingenbrink made clear before investing he wanted to choose the property and that water was important to him; he wanted free water and Games assured Lingenbrink he would deliver free water to irrigate and maintain Lingenbrink's home. They shook hands on the deal. Lingenbrink eventually wrote a letter of intent reflecting his understanding of Games's provision of water at no cost, and discussed it with Games on several occasions. Lingenbrink paid $1 million towards the purchase. For his investment, Lingenbrink received an undeveloped plot plus a percentage ownership in the project.
Games denied signing a written agreement to provide Lingenbrink with free unlimited water. He testified he never agreed with Lingenbrink in writing or orally to provide "unlimited anything."
The trial court gave a limiting instruction as to the letter of intent, telling the jurors they were not to take it for the truth of the matters set forth in the document, but to establish Lingenbrink's state of mind.
In about 2001, Lingenbrink developed an estate on his three acres of land with lush landscaping. The LLC used Lingenbrink's home in marketing materials to encourage others to purchase lots. All of the founding members of the LLC who built on their properties, including Lingenbrink, received free water, and Lingenbrink had no volume restriction on his water usage. The LLC delivered various amounts of truckloads of water per day to Lingenbrink, eventually delivering eight truckloads per day, seven days a week, after Lingenbrink completed construction. When significant issues or shortages arose, Games reimbursed Lingenbrink for the cost of replacement water. The LLC delivered water to Lingenbrink's satisfaction for many years.
In 2002, Games and Lingenbrink entered into a "gentlemen's agreement" by which Games would buy out IFA's interest in the LLC, but Lingenbrink would keep his parcel of land and continue to receive his eight truckloads of water each day at no cost under the same terms. Games understood that the agreement was that Lingenbrink would receive water for as long as he owned the property; he knew Lingenbrink to be a frugal and not a wasteful man. Lingenbrink eventually memorialized the agreement in a written bill of sale, which required Games and the LLC, as well as any of their successors, to deliver free of charge "all requested" fresh water as long as Lingenbrink owned the property. In 2005, Games advised Lingenbrink the LLC would continue to perform and deliver water at no charge under their agreement, but accused Lingenbrink of engaging in poor planning and construction, thus wasting water.
Lingenbrink testified that at that time Games wanted to end the free water delivery, but Lingenbrink told him that was a "nonstarter," and Games agreed to continue it.
In about 2008, Grande, a company partly owned by Paul Jennings and Joe Fryzer, took over operations at the property. Games informed Jennings of the LLC's water obligation and he told Lingenbrink that Grande understood its responsibility. Grande took over and initially began delivering water to Lingenbrink in the usual amounts at no cost to him. However in July 2009, Jennings tried to convince Lingenbrink to start paying for desalinated water, which Lingenbrink refused. Grande began sending Lingenbrink invoices for water delivery "for informational purposes," which Lingenbrink understood he did not need to pay. Grande nevertheless from 2012 to 2014 delivered desalinated water but began reducing the water it delivered to six then four truckloads. In October 2014, Grande notified Lingenbrink that it would begin reducing his water starting November 1, 2014, and started reducing delivery amounts by 50 percent.
In response to the water reductions, Lingenbrink incurred costs in installing artificial grass and replacing dead vegetation, putting drip irrigation in place, building a desalinization plant, and installing solar panels. He paid to truck in replacement water pending the desalinization plant's construction.
Lingenbrink sued Games in May 2017 for breach of contract, promissory estoppel and "third party breach of contract." Lingenbrink alleged, among other things, that Games and IFA had an agreement that Games would provide Lingenbrink as much fresh water as he demanded for his property free of charge. Lingenbrink alleged Games breached the agreement when he failed to ensure that Grande would continue to perform sufficient water deliveries.
In October 2018, Grande filed a complaint in intervention seeking a judicial declaration that no agreement existed between Grande and Lingenbrink concerning the water rights at issue; that Grande had no contractual obligation to provide Lingenbrink with free water for his property; that any agreement between them was governed by Mexican law; and that any dispute concerning the water rights at issue must be adjudicated in Mexican courts.
On November 28, 2018, Lingenbrink cross-complained against Grande, Jennings and Fryzer for, among other claims, third party breach of contract. He alleged that in about 2007 or 2008, Games and Grande had entered into an agreement that Grande would continue to deliver water free of charge to Lingenbrink, and Grande understood and intended that agreement to be for Lingenbrink's express benefit. He alleged Grande breached the agreement in or around 2015 when it reduced his water consumption to approximately 50 percent of the amount of water Lingenbrink had requested, and further breached the agreement by invoicing and charging him in excess of $539,000 for the water he had used over approximately the last 10 years. Lingenbrink alleged the breach caused him specified damages in connection with destroyed landscaping and his remedial measures, as well as future general and special damages.
In January 2019, Grande moved to dismiss the action on grounds of forum non conveniens. Though it acknowledged Lingenbrink was a part-time California resident, it argued the action involved "Mexican property, Mexican water, a Mexican company, Mexican residents, and . . . the application of Mexican laws to facts and issues that [were] already before a Mexican court." It gave three reasons for dismissing the action: (1) Mexico was a suitable forum; (2) the balance of private interest factors favored Mexico as a forum as the majority of documentary evidence and many of the fact witnesses were there; and (3) the public interest factors required the dispute be adjudicated in Mexico because Mexico had a great interest in a dispute involving Mexican property and a Mexican contract under Mexican law, and California had no interest.
The trial court denied the motion. It assumed Mexico was a suitable alternative forum. The court ruled the public and private interest factors did not support granting the motion, in part because the action arose out of Games's and then Grande's alleged failure to deliver water under an agreement between parties who were both California residents; Lingenbrink, Games, Jennings and Fryzer all resided in San Diego or Los Angeles County; and Grande maintained an office in Los Angeles. It observed Grande was "hard-pressed to claim California is a seriously inconvenient forum given that it interjected itself into this case on the eve of trial after the case had been pending for more than a year."
In September 2019, the court granted summary judgment on Lingenbrink's claims against the individuals and against Grande for promissory estoppel and unjust enrichment, leaving for trial only Lingenbrink's claim for breach of third party contract against Grande. In part, the court found there were triable issues of fact as to whether Grande terminated the agreement, and if so, when. Following issuance of the court's order, Grande via a September 11, 2019 letter gave Lingenbrink written "formal notice of termination of any purported agreement or obligation to provide you with free water to your property." Grande ended Lingenbrink's water deliveries in October 2019 while the litigation was pending.
Grande mischaracterizes the court's summary judgment order as the court finding the water delivery agreement "contemplated 'performance for an indefinite time,' and was thus terminable at will. . . ." In fact, the court merely summarized the parties' arguments on that point ("Cross-defendants argue that the alleged agreement is terminable at will because it contemplates performance for an indefinite time. [Citation.] Lingenbrink agrees that the parties contemplated perpetual performance."). In fact, at trial the court instructed the jury that it had not "determined or ordered, including when ruling on a motion for summary judgment, that any agreement alleged by Mr. Lingenbrink may be terminated at will by Grande . . . ."
The matter proceeded to trial on Lingenbrink's claim for breach of third party contract, on which the jury returned a special verdict in Lingenbrink's favor. Among other findings, the jury found Grande had entered into an agreement with Games and or the LLC for the benefit of Lingenbrink "to provide as much water as requested by IFA or its assignee from [the LLC's] well or a comparable alternative, free of charge, to Lingenbrink's Mexican property" and that the agreement was "intended to last for an indefinite period of time." It found that on November 1, 2014, Grande "fail[ed] to do something that the agreement with . . . Games and/or [the LLC] required it to do"; that the failures occurred after November 28, 2016, and on or after that date Grande had "commit[ted] a series of separate wrongs . . . ." The jury found Grande terminated the agreement on September 11, 2019. It found Lingenbrink was harmed by the breach, and that his damages incurred after November 28, 2016, were $507,258 in past losses and $3,008,287 in future losses. The jury found Lingenbrink incurred $507,258 in damages before the termination on September 11, 2019.
The parties added this latter question, No. 23, on the verdict form while the jury was deliberating, after Grande's counsel observed that the form did not cover what damages Lingenbrink incurred after November 28, 2016, (within the statute of limitations) but before the agreement was terminated. Once the parties agreed to add question No. 23, the court observed, "It just means that if [question No.] 21 is filled out [regarding Lingenbrink's past and future losses], that may be something the court will have to take care of." (Italics added.) After it polled the jurors on their verdict, the court observed an inconsistency in that they had answered question No. 6 ("Did Mr. Games and/or [the] LLC substantially perform their obligations under the agreement?"), which they were instructed not to answer if they had answered "yes" to question No. 5 (asking whether the agreement between Games and Grande could be performed within a year). Without discussion, counsel agreed to have the court take the verdict and excuse the jury regardless of that inconsistency.
Grande moved for a judgment notwithstanding the verdict (JNOV) and for a new trial. In part, it argued (1) there was no substantial evidence to support the jury's finding that Grande and Games or the LLC formed a valid contract; (2) all of Lingenbrink's claims were barred by the two-year statute of limitations and the continuous accrual doctrine did not apply; (3) the jury's award included duplicative and speculative damages; (4) post-contract-termination damages were unavailable as a matter of law or alternatively were speculative and duplicative.
The court denied the motion for JNOV. It ruled there was evidence of an implied-in-fact contract; that there was an initial agreement in 1999 between Grande and Games and/or the LLC to deliver water to Lingenbrink for as long as he owned the property, and Grande agreed to assume the obligation, delivering water for 12 years without payment. The court ruled there was "evidence that Grande understood and agreed that the water obligation remained in effect when it purchased the property and Grande's continuous provision of water without charge supports the existence of an implied[-]in[-]fact contract." As for the statute of limitations, it ruled there was evidence of a "continuing or recurring obligation" sufficient to apply the continuous accrual doctrine, thus avoiding a time bar. The court rejected Grande's attack on the jury's award of past and future damages in part on grounds the jurors did not itemize the damages and a partial JNOV was not the proper means to challenge the verdict. Grande appealed from that order.
The court ruled it was without jurisdiction to rule on Grande's motion for new trial as Grande had not filed a notice of intent. After Grande refiled its new trial motion, the court again denied it on grounds it had already ruled on it, noting Grande had not met the requirements for reconsideration as such a motion would be untimely.
In September 2020, the court entered judgment in the matter. Grande timely appealed from that judgment, and we consolidated the appeals.
DISCUSSION
I. Forum Non Conveniens Motion
A. Legal Principles
"The doctrine of inconvenient forum (often referred to as forum non conveniens) allows courts to 'exercise their discretionary power to decline to proceed in those causes of action which they conclude, on satisfactory evidence, may be more appropriately and justly tried elsewhere.'" (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 609; see also ZhiAn Wang v. Fang (2021) 59 Cal.App.5th 907, 917.)" 'In determining whether to grant a motion based on forum non conveniens, a court must first determine whether the alternate forum is a "suitable" place for trial.' [Citation.] If the alternative forum is suitable, the court then considers the private and public interests in retaining the action for trial in California. [Citation.] If the private and public interests weigh in favor of a suitable alternative forum, the trial court generally has discretion to either dismiss or stay the action on any conditions that may be just. [Citations.] 'The burden of proof is on the defendant, as the party asserting forum non conveniens.'" (Aghaian, at p. 609; see Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik); National Football League v. Fireman's Fund Insurance Company (2015) 216 Cal.App.4th 902, 917 (National Football League).)
Whether a forum is suitable is a legal question that we review de novo. (ZhiAn Wang v. Fang, supra, 59 Cal.App.5th at p. 918.) We review the trial court's weighing and balancing of public and private factors for abuse of discretion, giving "substantial deference" to the court's ruling. (Stangvik, supra, 54 Cal.3d at p. 751; Laboratory Specialists International, Inc. v. Shimadzu Scientific Instruments, Inc. (2017) 17 Cal.App.5th 755, 764.)" 'We "will only interfere with a trial court's exercise of discretion where [we find] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could have reasonably reached the challenged result." (National Football League, supra, 216 Cal.App.4th at p. 918.)
B. Contentions
Grande contends the court abused its discretion by denying its motion to dismiss Lingenbrink's action for an inconvenient forum. It states the court correctly found Mexico to be a suitable alternate forum, but challenges its rulings on the private and public interest factors. Grande argues the court disregarded material facts in its ruling concerning the 2002 contract as well as the fact Lingenbrink, a German citizen, had multiple residences. According to Grande, "virtually every fact concerning the 2002 contract . . . militates in favor of a Mexican forum," including witnesses, documents, and other sources of proof. It argues numerous relevant Mexican witnesses such as all of Grande's employees, its vendors, property managers, and personnel in charge of water deliveries could not be compelled to attend trial, prejudicing Grande as a result. It maintains nothing about the contract or claims implicate California's public interests.
Lingenbrink responds in part that Grande's voluntary act of intervening in the action constitutes an affirmative waiver of any alleged inconvenient forum, and also invited error by allowing the court to assume jurisdiction over it. It maintains the court did not err by denying the motion as Grande "[f]or all intents and purposes" was the plaintiff and therefore not entitled to raise an inconvenient forum argument, and also Grande failed to meet its burden to show California was an inconvenient forum.
Lingenbrink also argues the order denying Grande's motion is not appealable but only subject to challenge by writ of mandate. It compares the order denying its forum non conveniens motion to other non-appealable interim orders unrelated to the judgment. We disagree for the reasons recently stated in Aghaian v. Minassian, supra, 64 Cal.App.5th 603, namely that" '[t]he Legislature knows how to make writ review the exclusive mode of review if it wants to'" but did not do so in Code of Civil Procedure section 418.10, which governs the timing of inconvenient forum motions. (Id. at pp. 610-611.).
C. Grande as Plaintiff
We reject Lingenbrink's argument that Grande as a plaintiff in intervention was not authorized to bring the motion or waived any argument California was an inconvenient forum. Code of Civil Procedure sections 410.30 and 418.10 govern forum non conveniens motions. (See Global Financial Distributors Inc. v. Superior Court (2019) 35 Cal.App.5th 179, 187; In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 687 [forum non conveniens motions are governed by statute], disagreed with on other grounds in National Football League, supra, 216 Cal.App.4th at p. 933.) Code of Civil Procedure section 410.30 codifies the doctrine, permitting by its terms that dismissal or stay "may be sought by motion of a party, not just by motion of a defendant . . . ." (Taschen, at p. 687.) The unambiguous language applies to Grande, a party to the action. The filing of an action in a particular forum "cannot itself constitute a waiver of the right to bring a forum non conveniens motion because . . . petitioners have a statutory right to file such motions." (Ibid.)
Code of Civil Procedure section 410.30, subdivision (a) provides: "When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just." Code of Civil Procedure section 418.10, subdivision (a) provides in part: "A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [¶] . . . [¶] (2) To stay or dismiss the action on the ground of inconvenient forum."
D. Delay in Bringing the Motion
We likewise disagree that Grande prejudicially delayed by waiting two years before bringing its motion. Grande intervened in the action on October 29, 2018, and filed its motion on January 31, 2019. This few months is nothing like the 18-month delay by the defendants in Martinez v. Ford Motor Co. (2010) 185 Cal.App.4th 9, relied upon by Lingenbrink. In Martinez, the court cited cases where appellate courts rejected delay arguments and held motions were timely filed even one year after the plaintiffs filed their complaint, finding the plaintiffs were not prejudiced by the defendants' pursuit of discovery. (Id. at pp. 19-20.) But in Martinez, the defendants' lengthy delay in filing their motion was accompanied by a showing that the defendants used a California court for "extensive discovery" they could not have obtained in Mexico which was "beyond the scope of that needed to establish the basis of a [forum non conveniens] motion . . . ." (Id. at p. 21.) Because they availed themselves of advantages of California courts to the appellants' prejudice, the defendants could not argue the California courts were inconvenient. (Ibid.)
As for prejudice, Lingenbrink asserts the parties engaged in extensive discovery, but he does not provide record citations for the proposition, n0r does he explain how the discovery prejudiced him, or how it went beyond the forum non conveniens factors so as to give Grande an unfair advantage. (See Martinez v. Ford Motor Co., supra, 185 Cal.App.4th at pp. 20-21.) Lingenbrink merely says he would have suffered prejudice if that discovery was "all for nothing" and the matter had to be relitigated in Mexico. The assertions are insufficient for us to resolve the issue on delay alone.
Elsewhere in his brief, Lingenbrink states "Grande served extensive discovery requests on Lingenbrink, including Form Interrogatories, Requests for Admission, and 106 Requests for Production," citing to portions of its opposition points and authorities to Grande's forum non conveniens motion and the declaration of one of Lingenbrink's attorneys. But those references merely repeat the type of discovery requests, and not the subject of the discovery so as to establish it was unrelated to the motion or somehow gave Grande an unfair advantage.
E. Mexico as a Suitable Alternate Forum
We need not decide whether Mexico was a suitable place for trial, as the trial court decided it was, and neither party challenges that part of its ruling.
F. Balancing of Private and Public Interests
The "private and public interest factors must be applied flexibly, without giving undue emphasis to any one element" and no court should decide there are circumstances in which the doctrine will always apply or never apply. (Stangvik, supra, 54 Cal.3d at p. 753.) In assessing the court's exercise of discretion in addressing these factors, we ask whether its ruling"' "exceed[ed] the bounds of reason," '" after considering all of the circumstances before it; if not, we affirm the ruling regardless how we might have decided the issue in the first instance. (Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal.App.5th 438, 447 [review of grant of forum non conveniens motion].) In the context of a forum non conveniens analysis, as is generally the case on appellate review, we presume the order is correct. (Ibid.) We ultimately are concerned with the correctness of the lower court's decision rather than its reasoning. (Ibid.; see Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 696 [appellate court must uphold order if there is a reasonable or even fairly debatable justification under the law for the court's action].)
"The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation." (Stangvik, supra, 54 Cal.3d at p. 751.)
As to the private interest factors, the court ruled: "Grande . . . contends it will be unduly expensive to translate the relevant documents into English and have experts on Mexican law testify if the case is tried in California. Grande . . . says that the invoices are at its property in Mexico and witnesses who can testify to how much water was delivered are located there as well. Whether Lingenbrink failed to pay for the water or how much water was delivered is immaterial to this dispute. [The] case is not about title to real property. This case ultimately arises out of Games's (and now Grande['s]) alleged failure to deliver water for free pursuant to the April 2012 [sic] agreement. Grande['s] groundskeepers are not material witnesses. Moreover Lingenbrink, Games, Jennings and Fryzer all reside in San Diego or Los Angeles County. . . . Grande['s] principal place of business is in Baja California, but it has an office in Los Angeles. . . . All business correspondence sent to Lingenbrink by Games, [the LLC], Jennings and Fryzer were sent to him in California. . . . The invoices are all in English and require payment to Grande ... in Culver City, California. . . . Grande is hard-pressed to claim California is a seriously inconvenient forum given that it interjected itself into this case on the eve of trial after the case had been pending for more than a year. Thus, the private interest factors do not support granting the motion."
Grande does not meaningfully challenge the court's findings about the parties' residency or places of business. It contends the court's ruling ignored numerous asserted material facts concerning the contract, witnesses and documents; the court was incorrect as to whether certain issues were relevant and material; and other facts-such as the fact invoices were sent from Grande's office in California-"merit[ ] little weight." It asserts the contract was formed in Mexico between Mexican residents, the property was located in Mexico, day-to-day contract performance-water delivery-occurred entirely in Mexico, the breach was the failure to physically deliver water to the Mexican property, and all of Lingenbrink's damages occurred on his Mexican property. Grande asserts it could not call its own Mexican witnesses, including Grande's personnel with direct knowledge of Lingenbrink's water usage or the family who managed Lingenbrink's estate. It argues Mexican damage experts are cheaper than California experts and could testify regarding the documentary evidence without need for translation, and a Mexican court could permit a physical inspection of the property.
These arguments do not establish an abuse of discretion. As stated, we are not to decide the matter anew; we only determine, viewing the evidence in favor of the court's ruling, whether no judge could have reasonably denied Grande's motion. (National Football League, supra, 216 Cal.App.4th at p. 918.) The court reasonably did so here. The parties to the dispute have connections to California: As its invoices reflect, Grande maintains a business office in Southern California; though Lingenbrink is a German national, he has a Rancho Santa Fe residence where he lives a "large part of the year" and entered into the original deal in California with Games, who likewise resided at least in part in La Jolla and Rancho Santa Fe. As a California resident, Lingenbrink's choice of forum is presumed to be convenient. (Stangvik, supra, 54 Cal.3d at p. 755.) Lingenbrink dealt with Jennings and Grande via e-mails or letters from representatives in Los Angeles and received invoices that Grande admits were sent via its Los Angeles office. The dispute was not over the real property in Mexico, but whether Games and Grande contracted for Lingenbrink's benefit to provide water for the property at no charge, and Lingenbrink's expenditures caused by Grande's failure to perform. Evidence of the amounts of water the LLC and then Grande historically delivered to Lingenbrink, and Grande's later water reduction, was essentially undisputed and established by invoices written in English requiring payment to Grande's office in Los Angeles then Culver City (Trial Exhibit 54). Grande asserts that much of the trial revolved around how much water was delivered and maintains that it could not present direct Mexican witnesses on the issue due to cost, but such witnesses were unnecessary given the documentary evidence. Lingenbrink's main claim of damage-the lost value of water deliveries over his lifetime- did not require proof through third party witnesses in Mexico. That vendors or property maintenance witnesses, property title or ownership, and water delivery records were located or stored in Mexico is of no moment where the dispute did not center on such details. Under the abuse of discretion standard, where "there is a reasonable or even fairly debatable justification for the [court's] ruling, we will not set it aside." (Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177, 1195.) Given this standard, we cannot say the court abused its discretion in determining the private interests favored California as a convenient forum.
We reach the same conclusion as to the public interests relating to overburdening California courts and jurors, or the competing interests of California and Mexico in the litigation. As the trial court pointed out, the case had been pending in California since May 2017 and had been ready for trial when Grande intervened, findings that Grande does not dispute. We give substantial deference to the court's balancing of factors and the result it reached (Laboratory Specialists International, Inc. v. Shimadzu Scientific Instruments, Inc., supra, 17 Cal.App.5th at p. 764; Morris v. AGFA Corp (2006) 144 Cal.App.4th 1452, 1464, disagreed with on other grounds in National Football League, supra, 216 Cal.App.4th at p. 933), which we hold was not outside the bounds of reason. Court congestion is an important factor. (Stangvik, supra, 54 Cal.3d at p 758.) Given the length of time the matter was already pending in the California court, and the California connections to the dispute and parties, we cannot say the litigation unduly burdened the California court system or that jurors would be uninterested in serving on the case, involving financial injuries to a California resident. It may be that Mexico had some interest in the litigation, but the presence of countervailing factors does not establish an abuse of discretion, as the relative strength or weakness of any particular factor is not fatal. (Stangvik, at p. 753 ["the private and public interest factors must be applied flexibly, without giving undue emphasis to any one element"]; Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 860 ["the trial court retains a flexible power to consider and weigh all factors relevant to determining which forum is the more convenient"].) It was not wholly unreasonable for the court to conclude California's interest in the litigation was just as strong if not stronger than Mexico's so as to warrant retaining the action here.
II. Substantial Evidence of Implied-in-Fact Contract
Grande contends we must reverse the judgment because the record lacks substantial evidence of any valid contract in which it agreed to assume the water delivery obligation to Lingenbrink. It argues there is no evidence of either its oral acceptance or an implied agreement arising out of its conduct in delivering water to Lingenbrink, which occurred after Grande acquired the property from the LLC. According to Grande, any implied-in-fact agreement fails for lack of consideration because Grande was not in charge of water deliveries until after its acquisition: "Lingenbrink presented no evidence whatsoever of any post-acquisition consideration that Grande might have received for its post-acquisition acceptance of the alleged water obligation." (Some italics omitted.) According to Grande, the record is undisputed that the only consideration it received was the acquisition of the property itself under the purchase agreement, and "[c]learly, the transfer of the . . . property cannot be consideration for Grande's later assumption of the 'water obligation' based on its post-acquisition conduct." (Some italics omitted.)
These assertions lack reasoned legal argument and citation to authority. The failure entitles us to hold the contention is forfeited, and we so hold. (People v. Baker (2021) 10 Cal.5th 1044, 1112, fn. 11; Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948; see also In re S.C. (2006) 138 Cal.App.4th 396, 408.) It is not our responsibility to act as counsel and make arguments for an appellant; we disregard conclusory arguments not supported by pertinent legal authority. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.)
III. Statute of Limitations and Continuous Accrual
Grande contends we must reverse the judgment because all of Lingenbrink's claims are barred by the two-year statute of limitations involving unwritten agreements, and his claims cannot be saved by the doctrine of continuous accrual. Grande argues it is undisputed that Lingenbrink had notice of his claims no later than November 1, 2014, when Grande significantly reduced water deliveries, but waited until November 28, 2018, over four years later, to file his complaint. It asserts that because the jury found it breached the agreement on November 1, 2014 (Grande "fail[ed] to do something the agreement. . . required it to do"), and all of Lingenbrink's damages stemmed from this "single discrete breach" that occurred outside the two-year limitations period, Lingenbrink cannot prevail on his claims. Grande maintains continuous accrual arises only in the context of severable contracts or discrete periodic payment obligations, and the jury's finding that Grande "committed 'a series of separate wrongs on or after November 28, 2016'" is insufficient as a matter of law to establish the defense because the jury did not find the separate wrongs were discrete breaches of the agreement as is required for application of the doctrine.
The continuous accrual doctrine is an exception to the "last element" accrual rule for application of statutes of limitation. (See Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191-1192 (Aryeh); Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1124.) "Generally speaking, continuous accrual applies whenever there is a continuing or recurring obligation: 'When an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period.' [Citation.] Because each new breach of such an obligation provides all the elements of a claim-wrongdoing, harm, and causation [citation]-each may be treated as an independently actionable wrong with its own time limit for recovery. [¶] ... [T]he theory of continuous accrual supports recovery only for damages arising from those breaches falling within the limitations period." (Aryeh, at p. 1199; Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 395.) Under this theory, "a series of wrongs or injuries may be viewed as each triggering its own limitations period, such that a suit for relief may be partially time-barred as to older events but timely as to those within the applicable limitations period." (Aryeh, at p. 1192; Orange County Water Dist., at p. 395.) "A plaintiff may allege a single cause of action covering the entire series of actionable wrongs: '[N]othing in the theory of continuous accrual requires every severable act to be pleaded as a distinct cause of action[.]'" (Orange County Water Dist., at p. 395, quoting Aryeh, at p. 1201, fn. 8.)
We are unpersuaded by Grande's arguments that the continuous accrual exception does not apply to Lingenbrink's breach of contract claim in this case. We look not to the label of the claim but to the nature of the obligation allegedly breached. (Aryeh, supra, 55 Cal.4th at p. 1200.) The question is whether, assessing the parties' objective intent and conduct, the agreement contemplated "divisible, interval performance by [Grande]." (Eloquence Corporation v. Home Consignment Center (2020) 49 Cal.App.5th 655, 661.) The agreement required Grande to provide sufficient amounts of water to maintain Lingenbrink's property at no charge for as long as he owned his property; Grande delivered about eight truckloads of water regularly if not daily to Lingenbrink's satisfaction for many years (invoicing him monthly), but began reducing amounts until in November 2014 it substantially reduced the amounts it delivered to Lingenbrink. The duty Grande owed was a continuing one, susceptible to recurring breaches, and each breach must be treated as triggering a new statute of limitations. (Accord, ibid., citing Hogar Dulce Hogar v. Community Development Commission (2003) 110 Cal.App.4th 1288, 1295 ["When an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period"] & Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1388-1391 [treating each disputed monthly bill or wrong amount of gas as triggering a new statute of limitation; "the breach of contract-the payment of the wrong amount of money to [appellant] or delivery of the wrong amount of production-was repeated each month"].) Consistent with the evidence, the jury found Grande had committed a "series of separate wrongs" on or after November 28, 2016.
We see little difference between an obligation to make periodic payments such as wages, benefits or royalties (see Hogar Dulce Hogar v. Community Development Commission, supra, 110 Cal.App.4th at pp. 1295-1297 [obligation to pay a housing fund 20 percent of gross tax increment receipts annually was a recurring duty] and cases cited therein; Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1342-1343 [defendant's obligation to pay quarterly royalties based on its licensing or other rights to plaintiffs songs "was unquestionably a continuing one"]) and one to deliver a certain amount of a commodity, such as water, on a recurring basis. This court observed that the California Supreme Court has held with regard to wrongfully withheld welfare payments," 'each such payment becomes a debt due to the employee as of the date he was entitled to receive it. It is settled that in such cases each deficient payment constitutes a separate violation triggering the running of a new period of limitations, and hence the employee can recover only those payments which accrued within the period of the applicable statute of limitations preceding the filing of his complaint.'" (Hogar, at p. 1296, quoting Green v. Obledo (1981) 29 Cal.3d 126, 141.) So it is here. Each deficient water delivery constituted a separate violation triggering the running of a new limitations period. As long as it is continuing, whether the obligation is due on a daily, monthly or quarterly basis is unimportant.
Grande nevertheless argues this case falls within the circumstance of a contract that is to be performed over a period of time or the undertaking of acts in furtherance of a contractual breach, which is insufficient to apply continuous accrual. Grande's cited cases-involving single wrongful acts causing continuing injuries or other unique circumstances-do not change our conclusion. In NBC Universal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, the court in a footnote observed that the plaintiff had alleged the defendant exploited their idea for a television series, destroying the idea's marketability and causing actual harm when the defendant's show premiered. (Id. at p. 1237, fn. 10.) The airing of the premier was the single breach, and each new episode constituted harm stemming from that breach, not an additional breach. (Ibid.) In State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, the plaintiff alleged a defendant made false and misleading statements in connection with his insurance claim stemming from a car accident. (Id. at p. 406.) The court held the action did not involve a recurring obligation, "[r]ather, every fraudulent statement or admission . . . arose out of a single transaction-[plaintiffs] insurance claim for the 1999 total loss of [plaintiffs car]-which was resolved before the limitations period ran." (Id. at p. 418; see also Garrison v. Oracle Corporation (N.D. CA 2016) 159 F.Supp.3d 1044, 1083 [contention that the defendant had a duty" 'not to collude with competitors' bears little relation to the monthly payments or monthly bills that California courts have found to be periodic, recurring obligations warranting continuous accrual"; but plaintiff did not allege such continuing duty in any event].)
IV. Denial of JNOV and Damages Issues
Grande challenges the jury's past and future damages awards on several grounds, which we describe and address below.
As a threshold matter, we observe Grande sought to challenge the jury's damages verdicts via a new trial motion, which the trial court purported to deny on grounds Grande had not timely filed the requisite notice of intent. (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 336 [describing statutory procedures for motion for new trial].) The court's order, however, was void as the court lost its power to hear the new trial motion in the absence of Grande's timely filing of a notice of intent. (See Kabran, at p. 337 [" 'an order granting a new trial is in excess of jurisdiction and void if. . . it is made . . . upon a notice of intention that is filed . . . too late' "; the trial court "loses jurisdiction to hear a new trial motion" if the notice of intent is untimely filed].) The court subsequently denied Grande's second motion for new trial. In a footnote, Grande contends that ruling was error. We do not address arguments made without required headings or subheadings. (In re S.C., supra, 138 Cal.App.4th at p. 408; Cox v. Griffin (2019) 34 Cal.App.5th 440, 453-454.) As a consequence, "if ascertainment of the amount of damages turns on the credibility of witnesses, conflicting evidence, or other factual questions, the award may not be challenged for . . . excessiveness for the first time on appeal." (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 759.) Grande is not precluded, however, from asserting error as to damages based on erroneous evidentiary rulings, or failure to apply the proper measure of damages. (Ibid.; Toscano v. Green Music, supra, 124 Cal.App.4th at p. 691 [whether a plaintiff is entitled to a particular measure of damages is a question of law subject to de novo review].) If, viewing the facts in the light most favorable to Lingenbrink, an award of damages is "unduly speculative and uncertain as a matter of law" (Greenwich, at pp. 759-760), such a claim is cognizable on appeal. (Ibid.)
This arises from the principle that the amount of damages to be awarded is a question of fact for the trier of fact, whose determinations are entitled to great weight. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506; Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 691.) The factual question is "first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial." (Seffert, at p. 506.) In this way, the court is vested with plenary power to independently evaluate the evidence. (Ryan v. Crown Castle NG Networks Inc. (2016) 6 Cal.App.5th 775, 784; but see Huy Fong Foods, Inc. v. Underwood Ranches, LP (2021) 66 Cal.App.5th 1112, 1125-1126 [disagreeing with Ryan to the extent it permits a trial court to entirely substitute its personal opinion for that of the jurors; court is empowered to grant a new trial only when it concludes the jury's verdict is" 'clearly' wrong"].) "The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses. If he [or she] believes the damages awarded by the jury to be excessive and the question is presented it becomes [the court's] duty to reduce them. . . . When the question is raised [the court's] denial of a motion for new trial is an indication that [it] approves the amount of the award." (Seffert, at p. 507.)
We apply these principles in assessing Grande's claims.
A. Background
Lingenbrink testified about costs he incurred assertedly stemming from Grande's water reduction. After Grande reduced his water in 2014, he killed his grass areas on his property and spent $200,000 for installation of artificial grass (costing $160,000 for the material and approximately $40,000 for labor). He paid laborers approximately $40,000 to install drip irrigation. He spent about $150,000 to replace dead plants. He installed fresh water tanks, spent $6,000 to $8,000 in pipes and pumps, and eventually purchased a $300,000 desalinization plant, which had not arrived by the time of trial. Lingenbrink stated he paid $500,000 to $600,000 for water cisterns, pipelines and electrical work. He paid about $3,600 ($70,000 pesos, which Lingenbrink divided by 19 to estimate United States dollars) for racking and $58,000 in solar panels a few months before trial. Lingenbrink testified he spent approximately $12,000 to $14,000 per month on replacement water for his property, which he intended to use until his desalinization plant was operational. Lingenbrink stated he was not asking the jury to award him the cost of replacement water once his desalinization plant was operational. He testified he intended to keep his property until he died.
Lingenbrink also presented an expert witness, Brett Blazys, who gave opinions about Lingenbrink's past water damages, the cost of Lingenbrink's desalinization plant and Lingenbrink's estimated future water use. Blazys testified that he calculated Lingenbrink's past water damages by looking at Grande's water invoices from November 2013 to March 2019 to determine Lingenbrink's cost plus interest, which he calculated to be $117,258. Blazys used Lingenbrink's testimony about his water costs and extrapolated into the future using United States Department of Commerce life expectancy tables, then reduced the amount to present value. According to Blazys, Lingenbrink's total future damages using a life expectancy of 81 years were $2,648,287. He testified the total cost of Lingenbrink's desalinization plant was $1,368,500. On cross-examination, Blazys confirmed that even though he had reviewed water invoices from 2007 to 2019, he used information from a single month of Lingenbrink's water payments, then extrapolated about 23 years of water usage, discounted to present value. He did not account for changing water rates or fluctuations in Lingenbrink's needs. Blazys acknowledged that his pretrial report damages figure was lower than his trial testimony, as his estimate had changed based on Lingenbrink's trial testimony. He admitted it was not good practice to extrapolate 23 years of future data by just multiplying a single month's data point, stating "that is all that was available." Blazys used a life expectancy table for American men, as he assumed Lingenbrink was an American citizen.
Grande presented testimony from David Golbahar, a forensic accountant, to rebut Blazys's calculations. He calculated Lingenbrink's alleged water shortage damages to be approximately $92,000 based on water delivery invoices to Lingenbrink from 2007 to 2019 (trial exhibit No. 54). For each invoice beginning in November 2014 when water delivery was reduced by 50 percent, he calculated the expected water delivery and what was actually delivered. Golbahar testified that Blazys took an average from 2013 to 2019, so Blazys's calculation included a time period when there was no delivery shortage.
B. Standard of Review
This court reviews the denial of a motion for JNOV using the same standard as the trial court. (Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1194.) We "review the record de novo and make an independent determination whether there is any substantial evidence to support the jury's findings. [Citations.] This review is limited to determining whether there is any substantial evidence to support the jury's verdict. [Citation.] The court must accept as true the evidence supporting the verdict, disregard conflicting evidence, and indulge every legitimate inference to support the verdict. [Citation.] If sufficient evidence supports the verdict, a reviewing court must uphold the court's denial of the JNOV motion. [Citation.] If the appellant raises purely legal questions, we conduct a de novo review." (Hirst v. City of Oceanside, supra, 236 Cal.App.4th 774, 782.)
C. Principles of Breach of Contract Damages
"Damages awarded to an injured party for breach of contract 'seek to approximate the agreed-upon performance.' [Citation.] The goal is to put the plaintiff 'in as good a position as he or she would have occupied' if the defendant had not breached the contract. [Citation.] In other words, the plaintiff is entitled to damages that are equivalent to the benefit of the plaintiffs contractual bargain. [Citations.] [¶] The injured party's damages cannot, however, exceed what it would have received if the contract had been fully performed on both sides." (Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist. (2004) 34 Cal.4th 960, 967-968.) Thus, the damages an injured party may obtain are capped by the parties' contractual bargain; such damages "do not permit recovery for unanticipated injury." (Id. at p. 969.)
Moreover, breach of contract damages must be" 'clearly ascertainable in both their nature and origin.'" (Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal.App.5th 1, 11, quoting Civ. Code, § 3301.)"' "Damages which are remote, contingent or merely possible cannot serve as a legal basis for recovery."' [Citation.] The plaintiff in a breach of contract action has the burden of proving nonspeculative damages with reasonable certainty." (Copenbarger, at p. 11; accord, Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 774-775 [breach of contract damages for lost profits are generally recoverable if they may be ascertained with reasonable certainty].)
But" '[w]here the fact of damages is certain, the amount of damages need not be calculated with absolute certainty. [Citations.] The law requires only that some reasonable basis of computation of damages be used, and the damages may be computed even if the result reached is an approximation.'" (Sargon Enterprises, Inc. v. University of Southern California, supra, 55 Cal.4th at p. 774, quoting GHKAssociates v. Mayer Group, Inc. (1990) 224 Cal.App.3d856, 873.)
D. Post-Termination Damages
Grande first argues the judgment does not correctly reflect the jury's verdict; that the jury did not actually award over $3 million in post-termination damages, rather its answer to the verdict question on this point was "an interim question that asked the jury to calculate damages before taking into account the [contract's] termination." According to Grande, the jury's finding that the contract was intended to last for an indefinite period of time but was terminated means it accepted Grande's affirmative defense that the contract was terminable at will and validly terminated, cutting off damages as of September 11, 2019. Grande maintains the jury's award of $507,258 in damages is the final damage award. Grande additionally contends for the same reasons that post-termination damages are not awardable as a matter of law, and the jury's award of such damages is inconsistent with the remainder of the jury's verdict, warranting modification of the judgment or a new trial.
A special verdict is one "by which the jury find[s] the facts only, leaving the judgment to the Court." (Code Civ. Proc, § 624.) The purpose of a special verdict is for the jury to determine the ultimate facts of each claim or defense in the case, so that "nothing shall remain to the Court but to draw from them conclusions of law." (Ibid.) A special verdict is inconsistent only when there is no possibility of reconciling its findings under any possible application of the evidence and instructions. (See Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1038; Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 716; accord, Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 268, fn. 27 ["An 'inconsistent' verdict is one that is internally inconsistent"].) This court explained in Zagami, Inc. v. James A Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092 (Zagami) that challenges to verdicts as ambiguous or inconsistent are subject to rules stated in Woodcock v. Fontana Scaffolding & Equipment Co. (1968) 69 Cal.2d 452:" 'If the verdict is ambiguous the party adversely affected should request a more formal and certain verdict. Then, if the trial judge has any doubts on the subject, he may send the jury out, under proper instructions, to correct the informal or insufficient verdict.' [Citations.] But where no objection is made before the jury is discharged, it falls to 'the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.' [Citations.] Where the trial judge does not interpret the verdict or interprets it erroneously, an appellate court will interpret the verdict if it is possible to give a correct interpretation. [Citations.] If the verdict is hopelessly ambiguous, a reversal is required, although retrial may be limited to the issue of damages." (Woodcock, at pp. 456-457.)
When the matter involves a special verdict, the reviewing court cannot apply presumptions in favor of upholding it. (Zagami, supra, 160 Cal.App.4th at p. 1092.) The appellate court will not attempt to remove the conflict by imposing an interpretation not supportable by the evidence admitted at trial. (Id. at p. 1093.) We analyze the correctness or inconsistency of a special verdict de novo. (Missakian v. Amusement Industry, Inc. (2021) 69 Cal.App.5th 630, 655; Fuller v. Department of Transportation, supra, 38 Cal.App.5th at p. 1038.)
We do not agree with Lingenbrink that Grande either forfeited its claim as to the jury's post-termination damages award or invited the error by acceding to the verdict form. Grande is not challenging the special verdict form as such, but the consistency of the jury's special verdicts and the court's judgment on the verdicts. Those objections are not forfeited even absent a request for clarification of the special verdict before the jury is dismissed. (Fuller v. Department of Transportation, supra, 38 Cal.App.5th at p. 1038; Zagami, supra, 160 Cal.App.4th at p. 1093, fn. 6 [inconsistent jury special verdicts are not subject to waiver; if form of verdict is defective, the complaining party must object or risk waiver of defects on appeal].) Nor can we say Grande forfeited a challenge to consistency of the special verdicts under the invited error doctrine. (See, e.g., Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1687.) The record contains no suggestion that Grande unilaterally proposed the special verdict form, or that it requested the pre-termination damages question with intent to gain an improper advantage. (See ibid.) To the contrary, the parties and the trial court discussed the form and all agreed to have the jury determine pre-termination damages in the event it found Grande terminated the agreement.
Further, we conclude the special verdict is neither hopelessly ambiguous nor irreconcilably inconsistent. The jury determined that the parties intended Grande's agreement with Games and/or the LLC to provide Lingenbrink water free of charge to last for an indefinite period of time, and that Grande terminated the contract in September 2019. A contract containing no express termination date is "terminable at will by any party upon reasonable notice after ... a reasonable time has elapsed." (Consolidated Theatres, Inc. v. Theatrical Stage Emp. Union, Local 16 (1968) 69 Cal.2d 713, 727-728; Ben-Zvi v. Edmar Co. (1995) 40 Cal.App.4th 468, 475; Aronowicz v. Nalley's, Inc. (1972) 30 Cal.App.3d 27, 51.) The jury was asked to find Lingenbrink's past and future damages, which it determined to be $507,258 and $3,008,287 respectively, the latter it reached presumably accepting Blazys's testimony about Lingenbrink's water expenses continuing until his death at age 81 and Lingenbrink's desalinization plant expenses. After Grande's counsel realized the verdict form did not include a question as to Lingenbrink's damages incurred if the jury decided Grande had terminated the contract (see footnote 6, ante), the parties then also asked the jury to determine what amount of damages Lingenbrink incurred before the date of the agreement's termination. The jury found those pre-termination damages to be equal to Lingenbrink's past damages: $507,258. If the jurors had not found the water delivery agreement was intended to last an indefinite period of time, the verdict instructed them to not answer the next question, which asked them to state the date that Grande terminated the agreement, and further told them not to answer the question about Lingenbrink's pre-termination damages. The verdict form allowed the court to enter a damages judgment for Lingenbrink accordingly depending on whether the jury determined Grande had or had not terminated the contract.
The jury was instructed: "If you decide that Mr. Lingenbrink has proven that a contract for free water exists between Grande and some third party, then you must decide whether that contract is for an indefinite duration. If it is, then you must also decide if Grande terminated the contract, and, if so, when." The jury was not instructed about the effect of termination on Lingenbrink's damages, but that was a legal question for the court to address.
It was for the trial court to interpret the special verdicts and draw conclusions of law from them in entering judgment. The court itself recognized that if the jury decided Grande terminated the agreement but answered the question as to past and future damages, and also made a finding as to Lingenbrink's pre-termination damages, the court would have "to take care of the issue. (Footnote 7, ante.) We conclude, however, its decision to add the past (pre-termination) and future (post-termination) damages to reach the total damage award was legal error. We may not infer in Lingenbrink's favor that the jury's special verdict finding concerning the parties' intent that the agreement last an indefinite period of time was actually a finding of perpetual performance, nor can we interpret the jury's finding that Grande terminated the agreement to mean that Grande "unilaterally terminated only its own obligations" as Lingenbrink urges. Rather, once the jury found as a factual matter that the agreement had no term of duration and that Grande terminated the contract, as a matter of law Lingenbrink could recover only those damages he could foreseeably contemplate, namely those he incurred up to the time of the agreement's termination. Lingenbrink was not entitled to recover the value of future water deliveries after Grande's obligations had ended, and that award must be vacated.
E. Claim of Speculative and Duplicative Damages
1. Lingenbrink's Failure to Produce Documentary Evidence of Costs
Grande contends that all of the jury's damage awards are speculative and invalid with the exception of $71,532 for the cost of replacement water. It points out that the cost of replacement water was supported by expert testimony and receipts, but maintains Lingenbrink's testimony about his other costs is remote and speculative because he "produced no receipts, no bank records, no credit card records, and no invoices for any of these items." According to Grande, absent corroboration, Lingenbrink's testimony should be rejected as "self-serving," "off-the-cuff and only a "rough ballpark of amounts he claimed to have paid."
Though styled as a claim of speculative damages, Grande's challenge in substance is the sort of attack on Lingenbrink's credibility and the weight of the evidence that we cannot revisit. (See Greenwich S.F., LLC v. Wong, supra, 190 Cal.App.4th at p. 759; Palm Medical Group, Inc. v. State Comp Ins. Fund (2008) 161 Cal.App.4th 206, 218 [court reviewing a motion for JNOV may not weigh evidence or assess witness credibility].)
2. Future Damages
Grande contends the jury's award of $2,658,287 for 23 years of future water deliveries based on Lingenbrink's life expectancy multiplied by his water costs for September and October 2019 is speculative and uncertain, particularly where Lingenbrink admitted his damages would be cut off if he sold the property or died. It argues the damages are also duplicative, characterizing Lingenbrink as admitting he could not collect both the cost of building the desalinization plant and the value of 23 years of future water costs.
Having reversed the award of post-termination damages, we need not reach the issue of these future damages. But were we to consider the contention we would hold Lingenbrink did not prove such future damages to a reasonable certainty, rather, his evidence shows they are contingent and merely possible. (Lueter v. State of California (2002) 94 Cal.App.4th 1285, 1302 [whatever the proper measure of damages, recovery may not be speculative, remote, contingent or merely possible]; Toscano v. Greene Music, supra, 124 Cal.App.4th at p. 694.) The sole evidence supporting the award is Lingenbrink's testimony that he intended to keep his property until he died, and Blazys's opinion as to the amount of Lingenbrink's lifetime future water costs (one month of data extrapolated 23 years using a life expectancy table for Americans). An award of water delivery for Lingenbrink's lifetime is contingent on Lingenbrink's good health and dependent on other factors like family history, on which Lingenbrink did not present evidence. Even viewed in the light most favorable to Lingenbrink, the testimony established only theoretical possibilities. Lingenbrink's evidence is too speculative and uncertain to support this award as a matter of law.
3. Claim as to Past Losses Beyond the Statute of Limitations
Grande contends all but $71,532 of the jury's past damages award consists of damages incurred outside the two-year statute of limitations period, or damages caused by Lingenbrink's failure to mitigate, and thus the jury's award is excessive as a matter of law. It points in part to a declaration from a juror submitted in connection with its JNOV motion recounting how the jury reached its damages awards, which the trial court ruled inadmissible. Grande argues the excessive damages are "apparent from the face of the award."
Grande challenges the court's refusal to consider the declaration in a footnote. We do not address the contention.
Lingenbrink responds that in accordance with instructions within the special verdict form, the jury awarded damages after November 28, 2016. He argues his expert and expert Blazys testified about damages occurring after November 28, 2016, which exceeded the jury's $507,258 award, indicating the jury could not have awarded damages incurred outside the statute of limitations.
As we have stated, our review on the motion for JNOV is limited to determining whether there is any substantial evidence to support the jury's verdict (Hirst v. City of Ocean side, supra, 236 Cal.App.4th 774, 782) or questions as to excessive damages that do not involve factual inquiries. (Greenwich S.F., LLC v. Wong, supra, 190 Cal.App.4th at p. 759.) Grande's claim that the jury reached an excessive award by including damages incurred outside the limitations period or caused by Lingenbrink's failure to mitigate involves factual questions-including the dates on which Lingenbrink paid costs stemming from the breach-that we do not address on review of the order denying JNOV.
DISPOSITION
The judgment is reversed with respect to the award of $3,008,287 in damages. The court is ordered to amend the judgment to so reflect. In all other respects, the judgment and order are affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: HUFFMAN, ACTING P. J., GUERRERO, J.