Filed 12/12/14 Miller v. Verizon Wireless CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JERRY P. MILLER, D063970
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00092363- CU-BC-CTL) VERIZON WIRELESS,
Defendant and Respondent.
APPEAL from a judgment and postjudgment orders of the Superior Court of San
Diego County, John S. Meyer, Judge. Affirmed.
Franklin & Franklin and J. David Franklin; Law Offices of Anthony A. Ferrigno
and Anthony A. Ferrigno for Plaintiff and Appellant.
Katten Muchin Rosenman, Ryan J. Larson, Jarin R. Jackson and Alan D. Croll for
Defendants and Respondents.
Plaintiff and appellant Jerry P. Miller doing business as Imagineering Cellular and
Imagineering Wireless (Miller, or at times, Imagineering) appeals from a judgment in
favor of defendants and respondents Cellco Partnership, dba Verizon Wireless, Los Angeles SMSA Limited Partnership dba Verizon Wireless, Oxnard/Ventura/Simi Limited
Partnership dba Verizon Wireless, and Verizon Wireless (VAW) LLC dba Verizon
Wireless (collectively Verizon). Miller sued Verizon for breach of an agency agreement,
alleging in part that Verizon breached the agreement by terminating his agency without
providing a required "cure" period, and waived its right to enforce certain provisions of
the agreement that Verizon claimed justified Miller's termination. By special verdict, the
jury found in Verizon's favor. The trial court denied Miller's postjudgment motions,
including his motion for judgment notwithstanding the verdict (JNOV).
Miller contends the court erred by presenting the jury with a legally erroneous
special verdict form that assertedly prevented the jury from reaching a verdict on Miller's
cure-period theory of breach. He contends the invited error doctrine did not preclude him
from objecting to the verdict form, nor does the doctrine apply because he brought the
verdict form's defects to the court's attention before the jury rendered its verdict. Finally,
Miller argues the trial court should have granted JNOV because the evidence was not
conflicting as to Verizon's breach. We affirm the judgment and postjudgment orders.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2003, Miller, who had been a long time agent for various predecessor
wireless telephone service providers, signed a four-year exclusive agency agreement with
Verizon. The April 2003 agency agreement precluded Miller from using unauthorized
subagents or obtaining customers via the Internet without Verizon's express written
consent. At some point during 2004, Miller began relying on Franco Caffagni to run his
business, Imagineering.
2 In 2005, 2006 and 2007, Verizon representatives learned Miller was selling
Verizon service over the Internet, and informed him and/or Caffagni in telephone calls,
in-person meetings, e-mails and letters that such sales by Miller or his subagents were not
allowed. Despite these violations, Miller and Verizon entered into a new four-year
exclusive agency agreement, the Verizon Wireless Agent Agreement (the April 2007
agreement or simply, the agreement) that became effective in April 2007. That
agreement also precluded Miller from using unauthorized subagents or obtaining
customers via the Internet without Verizon's express written consent.
By April 2009, Verizon had discovered that Miller was working with MDG
Computer Services (MDG), to which Miller paid commissions for online orders from
customers, including customers outside Miller's designated sales area. On May 15, 2009,
Verizon sent a cease and desist letter to Miller demanding his compliance with the
agreement. Miller sought Verizon's approval for online transactions but was
unsuccessful, and in June 2009, Caffagni notified Verizon that Miller had "severed all
ties" with MDG. According to Caffagni, as of this time, Miller had ceased activations
with MDG. However, Miller thereafter continued to take online activations from
customers referred from MDG and paid MDG compensation. In late 2008 or early 2009
Miller began working with another unauthorized subagent, More Mobile Internet, but did
not tell Verizon about that company.
In December 2009, Verizon conducted an investigation and learned that Miller
was still obtaining online activations, and that at least one customer had signed up for
Verizon service through More Mobile Internet. On December 29, 2009, Verizon
3 representatives met with Miller and Caffagni, and advised them it had learned of
Imagineering's continued Internet activations, and that Verizon was terminating the April
2007 agreement in part because of a lack of integrity and trust. That day, Verizon mailed
a letter terminating Miller's agency. In part, the letter states: "It has come to our
attention that you and Imagineering Cellular is [sic] again using a third party to offer, sell
and market Verizon Wireless Services in a manner that violates multiple provisions of
your Agreement with Verizon Wireless. Specifically, you are working with the operator
of a website—www.moremobileinterent.com—to solicit sales from customers around the
country for which you then activate using the Verizon Wireless provided tool and the
outlet ID assigned to you for your San Diego, California location. [¶] You have been
warned several times over the past few years about this type of improper solicitation of
Verizon Wireless customers and use of a third party who is not authorized to sell Verizon
Wireless services. The last warning occurred in May 2009 and resulted in our May 15,
2009 breach notification letter. It has become abundantly clear to us that you have no
intent on heeding our warning and adhering to the Agreement and we are forced by your
actions to terminate, effective immediately, your Agreement with Verizon Wireless as of
December 29, 2009.
Miller's Complaint
In May 2010, Miller sued Verizon for breach of contract (first and second causes
of action), unfair and unlawful business practices (third and fourth causes of action), and
declaratory relief (fifth cause of action). Miller alleged that for 24 years he had been a
wireless agent for one or more of the defendants, and had entered into the April 2007
4 agreement, a form drafted by Verizon, without negotiation. In his first breach of contract
cause of action, Miller alleged he was wrongfully terminated due to Verizon's breach of
the agreement specifying applicable "cure" periods for various breaches, and suffered
damage as a result. He alleged in his second breach of contract cause of action that
Verizon was estopped from terminating his agency under the agreement as it had waived
paragraph 3.61 under which it purported to terminate him.
Verizon successfully demurred to the complaint. Miller, who had opposed the
demurrer only as to the first breach of contract cause of action, appealed the judgment,
and this court in an unpublished opinion reversed the trial court's order sustaining the
demurrer to the first cause of action, leaving that cause of action to proceed. (Miller v.
Cellco Partnership (Oct. 27, 2011, D058651) [nonpub. opn.].) The matter proceeded to a
jury trial following Verizon's unsuccessful motion for summary judgment.
Trial Evidence
The April 2007 agreement was introduced into evidence at trial. Section 3,
entitled "Duties and Responsibilities of Agent," provides in part that the "Agent shall
1 Paragraph 3.6 of the agreement states in part: "Agent's authority to sell and activate [Verizon] service is limited to the locations and approved subagent locations. Without limiting the generality of the foregoing, agent shall not, without prior written consent of [Verizon], which can be modified or rescinded at any time, advertise, solicit or consummate any sale or activation of [Verizon] service through (a) any e-commerce functionality, including, but not limited to, a website operated directly or indirectly by agent, or (b) telemarketing." (Some capitalization omitted.) In his complaint, Miller alleged that despite this provision, he had been making Internet website sales on Verizon's behalf for a number of years and was asked to cease in 2005, which he did for a short time but resumed that same year until Verizon terminated him in December 2009.
5 conduct itself with the highest standards of honesty, integrity and fair dealing . . . ."
Paragraph 8 of the agreement, entitled "Breach, Termination," provides: "This
Agreement may be terminated immediately upon written notice to the breaching party if
the breach is not cured within the applicable cure period provided, however, that such
termination notice may not be sent until after the applicable cure period has expired."
Paragraph 8.7 of the agreement states: "For any breach of this Agreement for which a
particular cure period is not specified, the breaching party shall have a thirty (30) day
cure period."
Section 8.3 of the agreement provides: "8.3 With respect to the following
breaches there shall be no cure period and [Verizon] has the right to terminate this
Agreement immediately upon written notice to Agent if: [¶] 8.3.1 Agent engages in
conduct that, in [Verizon's] reasonable discretion, constitutes unethical, misleading, or
unfair business practices; [¶] 8.3.2 [Verizon] determines, in its reasonable discretion,
that any representation or warranty made by Agent in connection with this Agreement or
its application to act as a [Verizon] Agent is untrue . . . ."
Also admitted into evidence were Miller's discovery admissions that Verizon
never gave him prior written consent to sell Verizon service over the Internet; he never
signed a written agreement with Verizon (a) allowing him to sell Verizon service over the
Internet, (b) amending or modifying the April 2007 agreement or (c) permitting him to
sell service outside the area designated in his April 2007 agreement; and no one from
Verizon told Miller after May 15, 2009 that he was permitted to conduct Internet sales.
6 At trial, Miller sought to present evidence that Verizon was aware of his Internet
sales and benefitted from them, but then terminated his agency on the sole ground of
those improper sales, thus breaching the agreement by failing to provide the 30-day cure
period required under section 8.7. Miller testified that on December 28, 2009, Verizon's
director of indirect sales Michael Coil called him and advised him Verizon was
terminating his contract due to his Internet selling. According to both Miller and
Caffagni, at the December 29, 2009 in-person meeting, Coil's only stated reason for his
termination was Miller's sales with More Mobile Internet. Thus, Miller sought to prove
that Verizon's breach was the fact that the December 29, 2009 termination was effective
immediately.
Among other witnesses, Miller called Verizon employees Kathy Zombolas, Ryan
Hooper and Coil, who met with Miller and Caffagni on December 29, 2009. Coil
acknowledged the December 29, 2009 termination letter did not include the words "trust"
and "integrity," but he testified that at the in-person meeting "we continually talked about
I had a lack of trust and there was a lack of integrity with Imagineering. It was said on
repetitive, numerous times to Mr. Miller." Miller's counsel presented Coil with
deposition testimony in which Coil was asked for "any and all" reasons for Miller's
termination and specified Miller's Internet sales, use of an unapproved third party, and
activating customers outside of his approved selling area. At trial, Coil responded to his
deposition testimony as follows: "I think I was asked the question and I gave the three
reasons contractually that were part of that that came to mind. And I think that if you
look at the way the letter was written, there's definitely a question of integrity and trust
7 that was written in there about repeated violations of the contract . . . ." Coil testified, "I
wouldn't be terminating somebody if I had trust, confidence and they were within their
contractual obligations, they would still be here."
Zombolas testified that at the December 29, 2009 meeting, Coil told Miller and
Caffagni that the agreement was being terminated due to Internet sales, as well as "a
couple of other items." According to Zombolas, Miller and Caffagni did not dispute their
unauthorized sales, but asked for another chance. Zombolas testified about how Coil
evaluated Imagineering's conduct, stating, "[I]t was integrity issues, not trusting the agent
and that they had been warned." Hooper testified that Coil told Miller that one of the
reasons he was being terminated was a lack of integrity and trust on Miller's part.
According to Hooper, Coil specifically said those words at that meeting.
The Special Verdict Form
After the trial court heard the parties' pretrial evidentiary motions, it asked whether
counsel had met and conferred regarding the special verdict form. Plaintiffs' counsel,
David Franklin, advised the court they had not, and the following colloquy ensued:
"The Court: Okay, I really want—I'm insisting that that be done.
"Mr. Franklin: Okay.
"The Court: I want it Wednesday morning. I want—I want a set of instructions
and a verdict form that's going to be right out of CACI, breach of contract and so—
"[Verizon's counsel]: Yes, your Honor, I understand. I had done my own special
verdict form. Your Honor [on] Friday said no, I want CACI, and I said okay.
8 "The Court: Okay." Attorney Franklin went on to discuss the special jury
instructions, and there was no further discussion of the special verdict form that day.
The next day, the verdict form came up again after the jury adjourned. Verizon's
counsel stated he had a verdict form, Judicial Council form VF300, which was acceptable
to Verizon. Attorney Franklin advised the court the form was not acceptable, stating:
"[T]here are alternative provisions. You select one, you can't have the other one. That's
my problem with it. They're bracketed information all throughout that jury instruction
[sic], and it needs to have a referee, if you will, to determine what should go in—of the
bracketed information, what should go in and what should stay out." Because the verdict
form was not in the proper format, the court instructed defense counsel to submit a proper
form and defense counsel agreed, after which attorney Franklin offered to present
plaintiff's own proposed verdict form the following week.
After the jury adjourned the following day, Verizon's counsel submitted a special
verdict form. Attorney Franklin did not have plaintiffs' version, and he reminded the
court he had been given until the following week to submit it. The court instructed him
to submit it the next day. The court told attorney Franklin to submit an informal form
that could be handwritten, and he agreed to provide it the next day before the close of
business.
9 The court and parties discussed the special verdict form again on February 19,
2013,2 and February 25, 2013, when Verizon's counsel assured the court he and attorney
Franklin would discuss the matter that evening. The next day, after further discussion
about the wording of the verdict form concerning plaintiffs' claim that Verizon had
waived its right to enforce certain portions of the agreement, the court ordered the parties
to deliver the completed verdict form "first thing tomorrow morning." That evening,
Verizon's counsel e-mailed attorney Franklin the special verdict form. Franklin replied,
"I will sign off on the Special Verdict Form."
The next morning, counsel for Miller and Verizon announced they had agreed on a
special verdict form. After the close of evidence, counsel discussed the signature page of
the form, at which time attorney Franklin said: "I think the way to handle [the verdict
form], your honor, we can both stipulate that we both signed and concurred on the verdict
form on the record, and I don't think the court—[¶] The Court: All right, I agree."
Verizon's counsel referred to the special verdict form in closing argument, explaining to
the jury the questions it was required to answer. The court then instructed the jury, after
which a sidebar conference was held where counsel discussed whether each juror would
receive a verdict form and whether there would be a "master" form. Before the jurors
2 Attorney Franklin advised the court that his problem was with question No. 3 on the special verdict form, which reads: "Did all the conditions that were required for [name of defendant]'s performance occur or were they excused?" Franklin said, "[A]ll I'm saying is that item No. 3 there is optional, according to the direction for use. . . . They've never been able to identify to me what condition it is that Verizon was supposed to have fulfilled before, you know, as far as I know, there are no conditions precedent as relates to Verizon in this case." Franklin offered to submit briefing on the issue. The parties do not refer to or relate the substance of that briefing. 10 adjourned, the court instructed them how to handle the original verdict form and copies.
The jury then adjourned to deliberate.
On March 4, 2013, the court announced that the jury had reached a verdict.
Attorney Franklin's co-counsel, Anthony Ferrigno, responded by taking issue with the
verdict form, over Verizon's counsel's objection:
Mr. Ferrigno: ". . . [T]here's an issue on the special verdict form I need to raise
before [the verdict is] announced on the record. [¶] . . . [¶] [Verizon's counsel objects]
[¶] . . . Mr. Franklin and defense counsel entered into this special verdict form and, you
know, I hadn't seen it. So he was handling that. [¶] . . . [¶] . . . You kept pushing the
parties to get the special verdict form done. I was not handling that. But I have seen
something in this that I need to call to the Court's attention because it's wrong." After
counsel's explanation, the court responded: "Let me back up for a minute. This is a
breach of contract. And as I indicated, the breach-of-contract verdict form is in CACI.
It's right there. And it—and it's straightforward. And I wanted to give it. And the parties
went round and round, and Mr. Franklin objected and I was inclined to agree with him
after a lot of argument. [¶] And then the parties met and conferred and represented to the
Court on six or seven occasions, 'We've agreed on a verdict form we're both happy with.
Here it is.' [¶] . . . [¶] And I had some questions about it. But I said if it's good for you,
it's good for me. And it was good for them. And I just said it is what it is and it seems
okay."
Eventually, the court asked how attorney Ferrigno proposed the verdict form be
corrected. When it was unable to get an answer, the court told counsel it would consider
11 having the jury answer question No. 3, declining counsel's request for 15 minutes to
correct the form and insert a new question. Attorney Ferrigno took exception. The court
finally ruled it would take the jury's verdict: "If it's error, it's invited error. If it's error,
it's waived. It's done."
Miller's Motion for JNOV
Miller moved for JNOV and a new trial, and also sought to set aside and vacate
the judgment. In his motion for JNOV, he argued he was entitled to such relief under
cases such as Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150 (Mikialian) and
Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634 (Roddenberry), under which the
trial court was required to reject Verizon witnesses' trial testimony that contradicted
admissions made in their depositions. According to Miller, this left the court with
evidence that the sole reason Coil terminated Miller's agency agreement was for
unauthorized Internet sales, requiring a 30-day cure period. The trial court denied the
motion, ruling Miller had not shown the trial evidence was insufficient as a matter of law
to support the jury's verdict.
Miller filed the present appeal.
DISCUSSION
I. Claims Relating to the Special Verdict Form
The special verdict form submitted to the jury, entitled Joint Proposed Special
Verdict Form; VF-300, reads as follows:
"Please answer the following questions as your verdict in this matter, according to
the instructions given to you by the Court and the instructions contained in this form.
12 BREACH OF CONTRACT
We answer the questions submitted to us as follows:
1. Did Jerry P. Miller d/b/a Imagineering Cellular and Imagineering Wireless and Verizon Wireless enter into a contract?
________ Yes ________ No
If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.
2. Did Jerry P. Miller d/b/a Imagineering Cellular and Imagineering Wireless do all, or substantially all, of the significant things that the contract required it to do?
or
Has Jerry P. Miller d/b/a Imagineering Cellular and Imagineering Wireless proved by clear and convincing evidence that Verizon Wireless waived the right to enforce the following terms of the contract: the prohibition against obtaining activations using the Internet; the prohibition against obtaining activations using an unauthorized sub-agent; and the prohibition against obtaining activations outside of its designated territory?
If your answer to either option for question 2 is yes, then answer question 3. If you answered no to both options, stop here, answer no further questions, and have the presiding juror sign and date this form.
3. Did Verizon Wireless do something that the contract prohibited it from doing?
If your answer to question 3 is yes, then answer question 4. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.
4. Was Jerry Miller d/b/a Imagineering Cellular and Imagineering Wireless harmed by that failure?
13 ________ Yes ________ No
If your answer to questions [sic] 4 is yes, then answer question 5. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.
5. What are Jerry Miller d/b/a Imagineering Cellular and Imagineering Wireless's damages?
$____________
Signed:_______________________ Presiding Juror
Dated:_______________________
After this verdict form has been signed, notify the bailiff that you are ready to present your verdict in the courtroom."
The jury answered "yes" to question No. 1, and "no" to both parts of question No.
2. It signed and returned the form.
Miller contends the trial court reversibly erred in presenting the special verdict
form to the jury because it contained questions dealing only with his waiver claim, and
not his claim that Verizon breached the agency agreement by failing to provide a cure
period before terminating the agreement. Asserting his breach of contract claims were
separate causes of action, Miller suggests the court's entry of judgment on that verdict
form was premature and violated the one final judgment rule because it did not resolve all
of his causes of action. Miller finally argues the invited error doctrine does not preclude
him from objecting to the form, nor does it apply where his counsel brought the errors to
the court's attention before the jury issued its verdict.
14 A. Miller Proceeded to Trial on A Single Breach of Contract Cause of Action
Miller's argument concerning the final judgment rule fails on its premise. That is,
as Verizon points out, Miller's argument is grounded on the notion that he asserted two
separate causes of action for breach of contract, when in fact following Verizon's
demurrer and Miller's failure to oppose it as to all but the first cause of action, Miller was
left with a single cause of action for breach of contract. Thus, while Miller may have
originally filed a complaint containing two breach of contract causes of action, in the end
he was left with, and pursued to trial, only one. As a result, the cases on which Miller
relies for general principles relating to the one final judgment rule (e.g., Cobb v.
University of So. California (1996) 45 Cal.App.4th 1140, 1145; Morehart v. County of
Santa Barbara (1994) 7 Cal.4th 725, 741), and the proposition that the trial court must
provide proper jury instructions (e.g., Soule v. General Motors Corp. (1994) 8 Cal.4th
548),3 are inapposite.
Miller's reliance upon our prior opinion addressing Verizon's demurrer to support
his dual cause of action theory is wholly without merit. Indeed, we acknowledged there
that Miller's concession "admitted that his breach of contract claim based upon waiver
was not valid" and that Miller "agreed he was not entitled to damages based upon this
theory of breach of contract." (Miller v. Cellco Partnership, supra, D058651.) This
3 We are perplexed by Miller's reliance on instructional error cases for the proposition that parties are entitled to have the jury instructed on all theories of the case that are supported by the pleadings and evidence. Miller does not challenge the jury instructions given by the trial court, and even if he did, the record does not contain the instructions provided to the jury, which went unreported. Nor does Miller attempt to draw an analogy to these cases in any way. We see none. 15 portion of our opinion, to the extent it is relevant at all, stands for precisely the opposite
of what Miller claims.
B. Waiver
Verizon argues that Miller waived any right to object to the verdict form by first
agreeing to the special verdict form, and then failing to object until days after it had been
submitted to the clerk, after closing arguments in which Verizon's counsel specifically
referred to the form's question, after the form had been given to the jury, and after the
jury had announced it had reached its verdict. It relies on the basic principle that a party
loses the right to appeal an issue by failing to take proper steps to avoid or correct the
error. In part, it cites Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677,
Hercules Powder Co. v. Automatic Sprinkler Corp. of America (1957) 151 Cal.App.2d
387, and Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13
Cal.App.4th 949.
We conclude that under these specific circumstances, the doctrine of waiver
applies. Generally, " 'an appellant may waive his right to attack error by expressly or
impliedly agreeing at trial to the ruling or procedure objected to on appeal.' " (Mesecher
v. County of San Diego, supra, 9 Cal.App.4th at p. 1685.) More specifically, "[i]t is
incumbent upon counsel to propose a special verdict that does not mislead a jury into
bringing an improper special verdict." (Myers Building Indus., Ltd. v. Interface
Technology, Inc., supra, 13 Cal.App.4th at p. 960, fn. 8.) In the absence of a timely
objection raised before a special verdict form is submitted to the jury, the party will
waive defects in the form of the verdict. (Hercules Powder Co. v. Automatic Sprinkler
16 Corp. of America, supra, 151 Cal.App.2d at p. 401 [defect in form of verdict omitting a
defendant waived by failure to object at the time the forms were submitted to the jury,
nor when the verdict was rendered]; Joerger v. Pacific Gas & Electric Co. (1929) 207
Cal. 8, 21 [defendants prevented from raising issue as to verdict form; "When the form of
verdict was considered by the court in the presence of counsel for all parties, some
question arose with reference to it, but it was finally agreed that the one adopted by the
court should be given to the jury. Had defendants desired a different form, they should
have asked for it"]; see, e.g., Cembrook v. Sterling Drug Inc. (1964) 231 Cal.App.2d 52,
62-63 ["The applicable rule is that in the absence of an objection to the form of the
request for special findings of fact at the time of submission of the questions to the jury, it
will be presumed that there was an assent to the questions as presented and the
complaining party cannot raise the issue for the first time on appeal."].)
Here, attorney Franklin's objections to the form before its submission to the jury
did not raise any issue with Verizon's obligations relating to the 30-day cure period, and
ultimately he agreed to the form of the verdict, permitting it to be submitted to the jury
and argued by Verizon's counsel. Even when Miller's co-counsel belatedly objected to
the verdict form at the time the court announced the jury had reached a verdict, he took
exception to the court's offer to correct the matter by having the jury answer question No.
3 on the form: "Did Verizon Wireless do something that the contract prohibited it from
doing?" This question would have encompassed Miller's claim, which was argued
vigorously by counsel during closing arguments, that Verizon breached the agreement by
failing to give Miller a 30-day period to cure his breaches. And after the jury rendered its
17 verdict, Miller did not again challenge the verdict before the jurors were discharged.
Under all of these circumstances, we cannot say Miller preserved any claim of defect in
the form of the special verdict.
C. The Verdict Form was Not Ambiguous
Irrespective of Miller's waiver, we conclude the verdict form is not ambiguous.
"[A] special verdict is that by which the jury finds the facts only, leaving the judgment to
the Court. The special verdict must present the conclusions of fact as established by the
evidence, and not the evidence to prove them; and those conclusions of fact must be so
presented as that nothing shall remain to the Court but to draw from them conclusions of
law." (Code Civ. Proc., § 624.)
" 'Unlike a general verdict (which merely implies findings on all issues in favor of
the plaintiff or defendant), a special verdict presents to the jury each ultimate fact in the
case. The jury must resolve all of the ultimate facts presented to it in the special verdict,
so that "nothing shall remain to the court but to draw from them conclusions of law."
[Citation.] [¶] The requirement that the jury must resolve every controverted issue is one
of the recognized pitfalls of special verdicts. "The possibility of a defective or
incomplete special verdict, or possibly no verdict at all, is much greater than with a
general verdict that is tested by special findings . . . ." ' " (Myers Building Industries, Ltd.
v. Interface Technology, Inc., supra, 13 Cal.App.4th at pp. 959-960.)
"A special verdict is 'fatally defective' if it does not allow the jury to resolve every
controverted issue." (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 325 (Saxena ).) "If
a fact necessary to support a cause of action is not included in such a special verdict,
18 judgment on that cause of action cannot stand." (Behr v. Redmond (2011) 193
Cal.App.4th 517, 531.) We analyze the correctness of the special verdict as a matter of
law. (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126
Cal.App.4th 668, 678; Saxena, at p. 325.) If it is not "hopelessly ambiguous," we may
interpret it from its language considered in connection with the pleadings, evidence and
instructions. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092.)
If a special verdict is "hopelessly ambiguous," failure to seek clarification from the jury
does not create a forfeiture, and the proper remedy is ordinarily a retrial on the issues
underlying the defective verdict. (Ibid.)
Here, question No. 2 on the special verdict form asked the jury to decide whether
Miller's conduct complied, or substantially complied, with the agreement. The jury
answered "no" to the question. We look to the evidence, including the agreement, which
required Miller to conduct himself with honesty, integrity and fair dealing, in interpreting
that question and the verdict as a whole. Doing so, the question and verdict as a whole is
reasonably interpreted to resolve Miller's controverted cure-period theory of breach:
whether Miller conducted his business without honesty and integrity, entitling Verizon to
terminate his agreement without a cure period. Thus, there is no indication the special
verdict form deprived Miller of the right to have the jury resolve this issue, and given the
record as a whole, we are satisfied the jury understood the form required it to resolve
Miller's claim that Verizon breached the agreement in this particular manner. As written,
there is no ambiguity or defect in the special verdict form.
19 D. Harmless Error
Additionally, we conclude that any error in the verdict form is harmless in view of
the evidence in this case. (See Taylor v. Nabors Drilling USA, LP (2014) 222
Cal.App.4th 1228, 1244 [rejecting any contention that a defective special verdict form is
reversible per se or structural error].) The California Constitution provides: "No
judgment shall be set aside . . . as to any matter of procedure, unless, after an examination
of the entire cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.)
"Code of Civil Procedure section 475[ ] is even broader [than its constitutional
counterpart], and, in pertinent part, provides: 'The court must, in every stage of the
action, disregard any error or defect in the . . . proceedings which, in the opinion of said
court, does not affect the substantial rights of the parties.' Mr. Witkin has interpreted
these rules as requiring affirmance of a judgment, even in the face of substantial error, if
the judgment is 'clearly right.' " (Taylor, at p. 1245, citing 9 Witkin, Cal. Procedure (5th
ed. 2008) Appeal, § 442, pp. 495-497.)
Here, as in Taylor, the use of the verdict form "did not deprive [Miller] of the right
to a jury trial or a fundamentally fair hearing. [Miller] had a lengthy jury trial before a
fair and unbiased trial judge and jury [who] . . . did what they were expected to do. [The
jury] conscientiously considered the case in accordance with the facts and the law."
(Taylor v. Nabors Drilling USA, LP, supra, 222 Cal.App.4th at p. 1245.) Also, like
Taylor, we conclude the judgment is " 'clearly right.' " (Id. at p. 1246.) The evidence is
undisputed that Miller repeatedly violated his agency agreements by selling Verizon
20 service via the Internet. The evidence also compels the conclusions that (1) Miller
continued to violate his agreement by selling online after assuring Verizon he would
cease that conduct; (2) Verizon employees, Coil in particular, concluded Miller lacked
integrity and Coil had lost trust in Miller; and (3) Coil informed Miller at the time of
Miller's termination that Coil lost trust and confidence in Miller and that Miller lacked
integrity. As we explain below in connection with Miller's JNOV arguments, the
evidence is sufficient to support the conclusion that Miller's conduct gave Verizon the
right to terminate him without notice or a cure period because Verizon was entitled to
conclude he had conducted himself in an unethical and misleading manner, and because
he had made untrue representations to Verizon relating to his agreement. Thus, we have
no "legitimate doubt" concerning prejudice (Taylor, at p. 1246), and conclude it is not
reasonably probable that Miller would prevail at a new trial on the question of his right to
a 30-day cure period, even assuming that question should have been submitted for the
jury's consideration.
II. Denial of Plaintiff's Motion for JNOV
A. Legal Principles and Standard of Review
" 'A motion for judgment notwithstanding the verdict may be granted only if it
appears from the evidence, viewed in the light most favorable to the party securing the
verdict, that there is no substantial evidence in support. [Citation.] [¶] . . . As in the
trial court, the standard of review [on appeal] is whether any substantial evidence—
contradicted or uncontradicted—supports the jury's conclusion.' " (Cabral v. Ralphs
21 Grocery Co. (2011) 51 Cal.4th 764, 770, quoting Sweatman v. Department of Veterans
Affairs (2001) 25 Cal.4th 62, 68.)
When an appellant claims a factual finding is not supported by substantial
evidence, our power " 'begins and ends with the determination as to whether there is any
substantial evidence contradicted or uncontradicted which will support' " the finding.
(Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) We presume the record
contains evidence sufficient to support the judgment and it is the appellant's burden to
demonstrate otherwise. (Ibid.) We do not reweigh evidence or assess the credibility of
witnesses. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) Evidence is
substantial if it is of "ponderable legal significance . . . reasonable, credible and of solid
value." (Roddenberry, supra, 44 Cal.App.4th at p. 651.)
B. Analysis
Miller contends the trial court erred in denying his motion for JNOV. Focusing on
Coil, and claiming Coil is the "only witness who really counts" on the issue, he argues
there is no substantial evidence contradicting Coil's reasons for terminating Miller's
agreement, all of which required Verizon to provide a 30-day cure period. Miller asserts
he could not exercise his right under the agreement to a cure period unless Verizon gave
him notice of what breach was the basis for his termination and he characterizes the
evidence as "uncontroverted" that "Coil, the person who made the decision to terminate
[him], did not include a violation of [paragraphs] 8.3.1 or 8.3.2 as a reason for
termination of [his] agency agreement." According to Miller, any trial testimony by Coil
and others that Coil had lost trust and confidence in Miller was impeached by deposition
22 testimony in which the witnesses explained the reasons for Miller's termination without
using the words "integrity" or "trust." In short, Miller's position is that Coil's trial
testimony about his reasons for Miller's termination for reasons of trust and integrity
cannot constitute substantial evidence in support of the jury's verdict.4
In making his arguments, Miller quotes from this court's October 2011 decision
addressing the sufficiency of Miller's pleading challenged by Verizon's demurrer, and
also from the trial court's order denying Verizon's motion for summary judgment. Miller
also points out that witnesses such as Zombolas did not present any evidence in support
of Verizon's summary judgment motion. Miller, however, does not explain why our prior
decision and the trial court's summary judgment ruling are pertinent to the question at
hand, which as we have explained is whether the trial evidence is sufficient to support the
jury's findings and verdict. Nothing from these prior rulings assists that determination.
Miller also repeats the same arguments made in his JNOV motion and his reliance
on Mikialian, supra, 79 Cal.App.3d 150 and Roddenberry, supra, 44 Cal.App.4th 634.
The argument is premised on Miller's assertion that the deposition testimony of Coil,
Hooper and Zombolas directly contradicted their trial testimony. But we reject this
premise, as well as Miller's characterization of these witnesses' prior testimony as fatally
4 In his reply brief, Miller further contends that he was entitled to JNOV because the jury made no findings as to his 30-day cure period claim, and thus whether the evidence supported Verizon's right to terminate under sections 8.3.1 or 8.3.2 of the agreement is "irrelevant." Miller did not advance this particular theory in challenging denial of JNOV in his opening brief. But even if we were to consider the new theory, Miller provides no legal authority for his propositions, and we have already rejected his claim that the verdict form was ambiguous on that issue. 23 inconsistent. For example, Hooper testified at his deposition that during the December
29, 2009 meeting, Miller's Internet sales "was one of the discussions that was brought up
of the violations of the contract" and there were "multiple discussions of violations of
contract between Internet sales to having subagents not selling—what's the word I'm
looking for? Exclusivity . . . ." (Emphasis added.) Hooper stated, "And the online
selling was a violation of the contract as well." This testimony simply does not
contradict Hooper's trial testimony that Coil told Miller he was terminating the contract
for a lack of integrity and trust. In her deposition, Zombolas was asked, "And [Coil]
specifically told Mr. Miller and/or Mr. Caffagni that Imagineering would be terminated
because they were selling over the Internet?" She responded, "Yes." Nothing in that
testimony contradicts her trial testimony that Coil also told them they were being
terminated for other reasons.
Finally, Coil's deposition and trial testimony is significantly different than the trial
testimony deemed insufficient in Mikialian. In Mikialian, the Court of Appeal reviewed
a judgment of nonsuit in a case involving a plaintiff truck driver injured in a hit and run
accident. At trial, the plaintiff sought to establish liability on the defendant city by
testifying a police officer had directed him to park his truck in the spot where he was
struck. (Mikialian, supra, 79 Cal.App.3d at p. 154.) This testimony, however,
contradicted the plaintiff's prior deposition testimony in which he denied anyone directed
him to pull his truck to the location. (Id. at p. 155.) At trial, the plaintiff did not attempt
to correct his deposition testimony, nor did he explain his answers were a product of
misunderstanding, confusion or mistake. (Id. at pp. 155, 160.)
24 The Court of Appeal concluded the plaintiff's trial testimony that the officers had
directed him where to park did not constitute substantial evidence creating an issue of
fact on the question of the city's liability. (Mikialian, 79 Cal.App.3d at pp. 158, 160.) Its
reasoning turned on the principle, expressed in D'Amico v. Board of Medical Examiners
(1974) 11 Cal.3d 1, that party admissions made in discovery carry a presumption of
trustworthiness and should receive deference over and above other types of evidence,
such as counteraffidavits submitted in opposition to summary judgment. (Mikialian, at
pp. 160-161.)5 The Court of Appeal emphasized that the plaintiff's testimony on that
point was the "keystone" of his claim against the city, and it explained that if the plaintiff
had explained his former testimony at trial, it "would have created a fact issue." (Id. at p.
159, 160.) Characterizing the plaintiff's deposition testimony as an unequivocal and
"clear admission[] of fact" (id. at pp. 158, 160), the court in part stated, " '[I]f a party
testifies deliberately to a concrete fact, not as a matter of opinion, estimate, appearance,
5 In part, the Mikialian court reasoned: " 'The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in other contexts [citations] admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination . . . of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits. [Citations.]' The rule stated in D'Amico[v. Board of Medical Examiners, supra, 11 Cal.3d 1] is that the assertion of facts contradictory to deposition testimony by affidavit does not constitute ' " 'substantial evidence of the existence of a triable issue of fact' " ' for the purpose of denying a motion for summary judgment. A fortiori, trial testimony simply contradicting a clear and unequivocal admission in a deposition cannot require denial of a nonsuit." (Mikialian, supra, 79 Cal.App.3d at p. 161.) 25 inference, or uncertain memory, but as a considered circumstance of the case, his
adversary is entitled to hold him to it.' " (Mikialian, at p. 162.)
Unlike the plaintiff in Mikialian, at trial, Coil explained his assertedly
contradictory deposition testimony and why it was not inconsistent with his trial
testimony, namely, that he gave three contractual reasons in the letter, but that the letter's
tone and content raised issues as to Miller's integrity and trust. This, again unlike the
circumstances in Mikialian, "created a fact issue" (Mikialian, supra, 79 Cal.App.3d at p.
160) for the jury to decide and to assess Coil's credibility in so doing. As indicated, the
agreement permitted Verizon to terminate Miller's agreement if, in "[Verizon's]
reasonable discretion" Miller engaged in "unethical, misleading, or unfair business
practices" or he had made untrue representations in connection with the agreement. Coil
explained that the basis for Miller's termination under this provision was that Miller had
engaged in repeated violations by continuing to sell on the Internet after being warned not
to do so, exhibiting a lack of integrity, and that as a result Coil had lost trust and
confidence in him. Coil testified this is what he "continually" told Miller and Caffagni
during the December 29, 2009 meeting. Coil's deposition testimony did not amount to a
" 'concrete fact' " on a single issue but rather involved his judgment and perception of
how Miller conducted himself. Nor is this a situation where Coil had made a clear
concession that he was attempting to contradict at trial. Mikialian is inapposite.
The issue for purposes of JNOV is whether the record contains substantial
evidence in Verizon's favor, accepting as true the evidence supporting the verdict,
disregarding conflicting evidence, and indulging in every legitimate inference that may
26 be drawn "in support of the judgment." (Taylor v. Nabors Drilling USA, LP, supra, 222
Cal.App.4th at p. 1237, emphasis added.) We " 'view the facts in the light most favorable
to the judgment, resolving all conflicts in [Verizon's] favor and accepting all reasonable
inferences deduced from the evidence.' " (Ibid.) Under this standard, substantial
evidence may still exist even where it is contradicted by other evidence (see Taylor, at p.
1237; Hasso v. Hapke (2014) 227 Cal.App.4th 107, 119) and it may consist of inferences,
as long as such inferences are " 'a product of logic and reason' " and " 'rest on the
evidence.' " (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627,
1633; Roddenberry, supra, 44 Cal.App.4th at p. 651.)
Here, the evidence is abundant that Miller had repeatedly violated his contract
with Verizon by selling Verizon services over the Internet, misrepresented the status of
his Internet sales to Verizon after Verizon discovered continued unauthorized sales, and
that Coil finally advised Miller he had lost trust in him and determined he lacked
integrity, justifying Miller's immediate termination. Miller has not shown, either by the
agreement's terms or legal authority, that Coil or any other Verizon representative was
required to specify the contractual provisions under which it was terminating Miller's
agreement. On this record, the trial court did not err by denying Miller's motion for
JNOV.
27 DISPOSITION
The judgment and postjudgment orders are affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.