Opinion
No. C-09-1483 EMC
08-31-2011
PET FOOD EXPRESS LIMITED, Plaintiff, v. ROYAL CANIN USA, INC., Defendant.
ORDER RE JURY INSTRUCTION 22
The parties dispute one point regarding proposed jury instruction number 22, the instruction regarding proof of damages. Specifically, they dispute whether to include the phrase "contingent or" in the following sentence: "Those damages must be reasonably certain rather than [contingent or] speculative." This Order memorializes and elaborates on the Court's ruling from the bench on August 30, 2011.
Plaintiff argues that "contingent" is unnecessary and misstates California law, as evidenced by the fact that it is not included in the relevant California Civil jury instructions ("CACI") or California Civil Code § 3301. Defendant counters that California case law typically states that "[d]amages which are remote, contingent, or merely possible cannot serve as a legal basis for recovery." California Shoppers, Inc. v. Royal Globe Insurance Co., 175 Cal.App.3d 1, 62 (1985).
The Court finds that including "contingent" in Jury Instruction 22 is both unnecessary and potentially confusing for the jury. California case law recognizes that if a plaintiff can prove contingent damages to a reasonable degree of certainty, they are permissible. See, e.g., Kids' Universe v. In2Labs, 95 Cal. App. 4th 870, 883 (2002) ("But although generally objectionable for the reason that their estimation is conjectural and speculative, anticipated profits dependent upon future events are allowed where their nature and occurrence can be shown by evidence of reasonable reliability."). Thus, the mere fact that future damages are contingent does not per se render them impermissible; rather, it is contingent damages that are not "shown by evidence of reasonable reliability" that are not allowed. See Greenwich S.F., LLC v. Wong, 190 Cal. App. 4th 739, 766 (2010) (finding lost profits claim too speculative where the plaintiff assumed, rather than proved, the reasonable certainty of future predicate events upon which the damages depended).
Moreover, the Court finds that Jury Instruction 22 contains sufficient cautionary language to make it clear to the jury that damages that are not reasonably certain should not be awarded. The sentence in question will state, "Those damages must be reasonably certain rather than speculative." At the end of the proposed instruction, the Court will state further, "Your award must be based upon evidence and not upon speculation, guesswork or conjecture." Accordingly, the Court finds that "contingent" is effectively redundant and adds no value for the jury while causing potential confusion.
IT IS SO ORDERED.
EDWARD M. CHEN
United States District Judge