Skouti v. Britz Fertilizers

Filed 7/6/07 Skouti v. Britz Fertilizers CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Mark Snauffer, Judge.

Horvitz & Levy, Peter Abrahams, David S. Ettinger; Cooper & Hoppe, Theodore W. Hoppe; Frame & Matsumoto and Ted R. Frame for Defendant and Appellant.

Betts & Wright, James B. Betts; Dowling, Aaron & Keeler and Lynne Thaxter Brown for Plaintiffs and Respondents.

-ooOoo-

This is an appeal from a judgment entered on a jury verdict for claims arising from damage to approximately 1,000 acres of grapes and vines. Defendant and appellant Britz Fertilizers, Inc. (hereafter defendant), contends it should have been allowed to call as a witness an expert who had previously been designated by plaintiff and respondent Ahmad Skouti (hereafter plaintiff) but who had withdrawn from the case because of asserted medical problems. Defendant also contends plaintiff was allowed to present expert evidence of the extent of permanent damage to the vines when there was no foundation for such testimony. Finally, defendant contends plaintiff presented insufficient evidence to support the award of damages for loss of economic opportunity. We reject defendants claims and affirm the judgment.

Facts and Procedural History

In July of 2002, plaintiffs employees sprayed plaintiffs 1,000 acres of vineyard with a mixture of several chemicals in a manner recommended by defendants crop advisor. Plaintiff grew Thompson seedless grapes to be processed as raisins. (Plaintiff owned some vineyards and rented or leased others. Co-plaintiff Walter Johnsen owned one of the fields rented to plaintiff. This appeal does not raise any separate issues concerning Johnsen and since we affirm on all issues affecting the judgment in Johnsens favor, our discussion will focus on plaintiff Skouti, and we will refer to Johnsen as co-plaintiff.)

Among other components, the spray mixture included a chemical designed to hasten the ripening of fruit. Due to the ambient temperature when the spray was applied, the mixture of the ripening agent with other chemicals, or other undetermined factors arising from application of the spray mixture, plaintiffs grapes began shriveling on the vine over the next three to four weeks, before the grapes contained sufficient sugar to process as raisins. (Defendant admitted liability at the end of plaintiffs case but disputed many aspects of plaintiffs claims of damage to growing grapes and permanent damage to grape vines.) The injury resulted in unusable fruit and a greatly reduced harvest, which was the basis of the jury award of $1,067,106 for lost 2002 raisin profits, as set forth on the special verdict form.

In addition to injuring the growing crop, the spray mixture also injured the vines themselves. Thus, the jury awarded $265,955 for replacement and special treatment of the vines in 2002, $640,710 as a result of the injured and replacement vines lower production in 2003, and $1,552,350 as a result of lower production in 2004. In addition, the jury awarded $3,666,505 in future lost profits from injury to the vines and $467,629 for lost business opportunities in 2003 and 2004, which we will describe in more detail below. The jury reduced its award in various amounts, set forth on the special verdict form, based on the reduced cost of caring for new, replacement vines as compared with the cost of caring for undamaged mature vines. The net verdict for plaintiff and against defendant was $7,596,247. Co-plaintiff Johnsen, was awarded $83,014 for permanent damage to vines in a field he rented to plaintiff.

Judgment was entered on April 14, 2005. Defendants posttrial motions were denied. Defendant filed a timely appeal.

Discussion

I. Plaintiffs Withdrawn Expert

As a general rule, when a party has failed to proffer a document or witness as evidence, and has failed to obtain a final ruling excluding such evidence, the party is not entitled to claim on appeal that the trial court committed error with respect to the evidence. (See Evid. Code,  354; Spanfelner v. Meyer (1942) 51 Cal.App.2d 390, 392.) Thus, where defense counsel in a murder case withdrew his request for appointment of a psychiatric expert to be present to observe the testimony of an eyewitness, the defendant was precluded from contending on appeal the trial court abused its discretion on the issue. (People v. Lewis (2001) 26 Cal.4th 334, 375.)

In the present appeal, defendant contends it was not allowed to call as its witness plaintiffs former retained expert who withdrew from the case for medical reasons. We will set out the facts in greater detail in our discussion. In summary, though, the record is clear that defendant withdrew its request to call this witness and never obtained a final ruling from the trial court excluding the witness. Accordingly, under the general rule, the issue is not cognizable on appeal. (People v. McPeters (1992) 2 Cal.4th 1148, 1179.)

Defendant contends, however, it should never have been put in the position to have to propose the compromise [that is, withdraw the request to present the witness] because the trial court improperly deferred ruling on the issue, but should have immediately denied plaintiffs motion to exclude the witness. In addition, defendant contends its counsel could see which way the wind was blowing and probably concluded that if he waited for the likely grant of plaintiffs motion, he would then be in no position to convince plaintiffs counsel to compromise in the manner he did. It contends that a finding of waiver would ignore[] the realities of trial practice, quoting from Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213, footnote 4. We now turn to the facts, which establish that defendants contention is wholly without merit.

In early January 2005, plaintiff designated Sarkis Sarabian as a retained expert to testify on the causation and extent of damage to plaintiffs grapes and vines. The designation stated: Should Mr. Sarabians health impair his ability to serve as a retained expert, Plaintiffs will utilize in place and stead of Mr. Sarabian: Scott Hicks. Plaintiffs counsel also notified defense counsel that Sarabian has shared with me this week his recent receipt of a serious medical diagnosis. Because he is planning to receive treatment in San Diego on January 16, 2005, he has asked that his deposition be moved to January 18, 2005.

Defendant began a deposition of Sarabian on February 21, 2005. Shortly into the deposition, Sarabian informed defendants attorney he (Sarabian) was suffering from the beginning of Parkinsons. He said his memory is not as good as it used to be. Throughout the remainder of the deposition, Sarabian demonstrated confusion between the present case and work he had done for plaintiff in 2001 concerning frost and hail damage. Once the witness had an opportunity to review various reports he had produced for the deposition, he was able to answer questions concerning the 2002 spray damage, although it appears most of the answers were based solely on the reports.

After about an hour, plaintiffs attorney took a break to consult with the witness. When the deposition resumed, Sarabian stated: Due to my physical condition, I probably am not as accurate as I probably should be. I feel very uncomfortable in giving the wrong testimony possibly to any -- any party. And therefore, I would like to respectfully eject myself from this court proceeding, because I want -- I want it to be fair to all parties concerned.

In response to follow-up questions from defendants attorney, Sarabian said: I just cant give the proper testimony that needs to be done. My thinking process isnt what it used to be. Im very sorry. The deposition was terminated.

Four days later, plaintiff filed a motion in limine to exclude all evidence relating to the expert opinions or deposition testimony of Sarkis Sarabian. On the first day of trial, February 28, 2005, the court heard various motions, including plaintiffs motion in limine. The court said it intended to review the deposition and would receive and review any medical reports under seal. Defendants counsel said he had retained a neurologist who would review the reports and submit his own report. In response to the courts statement that there was a risk here of turning this into a week-long trial on Sarkis Sarabians neurological ability and functioning, defendants counsel said that for plaintiffs main expert to now come in and say hes unavailable because his testimony hurts them is very convenient as the testimony is coming in poorly that that happens.

The court continued the matter overnight so it could review the various materials. The next day, the court stated it had reviewed the deposition and found it pretty jumbled as far as what [Sarabian] was saying. The medical reports had not arrived in time for the court to review them. The court remarked it had not seen what I need to see yet to make the judgment whether Sarabian was incompetent to testify. Consideration of the matter was deferred and jury voir dire was begun.

The issue next came before the court on March 3, 2005, prior to opening statements to the jury. The court said it had reviewed a short letter from the witnesss neurologist, had thought about the matter quite a bit, and intended to defer ruling on defendants right to call Sarabian as a witness, since plaintiff was not going to call him and I dont want to make a knee-jerk ruling without giving due consideration to all of the factors that are involved here. (At one of the earlier hearings, the court had indicated it thought testimony from Sarabian would not be particularly important to the defense case, since it would at best be duplicative of the testimony of the defenses own experts, but implied it needed to know more about the case before reaching such a conclusion.) The court then told counsel that they would probably have to avoid discussing Sarabian in opening statements. The court stated that deferring its ruling would not be crippling to the defense in any sense based on what Ive seen, and quite honestly that would be my preference, but I will go ahead and hear from you, Mr. Hoppe [defendants lead trial counsel].

Defendants counsel responded: Well, Your Honor, from a practical standpoint, my main concern is not having Sark Sarabian testify in this case. I dont necessarily think that thats the main concern I have. What I have concerns about, Your Honor, and these are my exhibits which Id like the court to take a look at because those are the reports of Sark Sarabian for the crop loss that Mr. Skouti had in July of 01, which is approximately a year before our event, which shows [several ranches] that apparently had frost damage, that had weather-related problems, and theres photos that are attached to this report that show dried-up vines, dried-up bunches, occasional bunches that are not appropriate [and damage to the vines]. These are all the same allegations, Your Honor, that are being made in this lawsuit. Counsel said he needed to be able to show the condition of the vineyards before the spraying in 2002: So its very important to our case, to our experts, to be able to use these photographs. We now have photographic evidence showing dead vines prior to the [2002] loss which now if were going to exclude all Sarks testimony, we will not have the opportunity to impeach plaintiffs testimony of current loss with evidence of prior losses.

The court then noted that defendants experts could rely on Sarabians reports in forming their opinions, even though the reports, as hearsay, were not themselves admissible. Defendants counsel then said he needed to have the photographs admitted in to evidence and did not have the means to authenticate them without Sarabians testimony. The court said: Let me stop you there. Because I understand your concern now a little bit more. The court then asked plaintiffs counsels views on the issue.

Plaintiffs counsel declined to stipulate to authenticity of the photographs, although he acknowledged defendants experts could rely on Sarabians reports. After further discussion, the court indicated it was inclined to allow the defendant to use Sarabians deposition for the limited purpose of authenticating the photos, as defendants counsel had proposed. The court asked plaintiffs counsel, Why would that be unfair? Counsel said he would not agree to Sarabian testifying in person, [b]ut I think that with reference to using the deposition, Im not going to pitch a fit on what the court has proposed.

Defendants counsel interjected that he thought the deposition might be inadequate to authenticate the photographs because it was terminated before I had a chance to finish. The court replied: You just dont buy that hes incap -- you want to call him as a witness and go through everything. Counsel said: I want the photos. Thats all I want. The court and defendants counsel had a further, extended discussion about whether the photographs were, in fact, authenticated in the deposition. Then the court proposed that Sarabian sit for another deposition for the limited purpose of authenticating the photographs. Plaintiffs counsel objected, saying that if the court were going to require another deposition, Id probably just stipulate to it.

After the court reiterated that such a deposition would not be very taxing, defendants counsel said: I understand the situation, and my main concern, Your Honor, Im trying to come to a compromise. My experts need these photos. Thats all they need is the photos. I dont need the reports in. We can rely on them as hearsay. But they need the photos and theres got to be a way we can reach some compromise on that particular issue. Plaintiffs counsel agreed, reserving the right to contest any other issues that might arise concerning Sarabian. Both counsel agreed to go through the photographs to determine which would be submitted into evidence.

The court then ruled on plaintiffs motion in limine to exclude Sarabian as a witness: The courts reviewed Mr. Sarabians deposition of February 21, 2005. The court has reviewed a medical report of Victoria Walton, M.D., a board certified neurologist known to the court from other cases as a competent practitioner. Mr. Hoppe has seen that report. We will file it as a court exhibit under seal. Based on those -- my review of those documents, Im going to grant the motion of plaintiffs that obviously hes not going to call Mr. Sarabian as an expert in his case. And with respect to the defense case my order is going to be that as long as counsel can agree to the photographs , that the adequate foundation has been laid for them to come into evidence, we will not require or will not allow Mr. Sarabian to be called as a witness in the defense case and will not be allowed to use the deposition in the defense case. That is conditional. The court is subject to reopening this ruling if we cant have an agreement on the photographs because I do see some unfairness to the defense if the photographs were excluded. The court also stated: Im satisfied with Dr. Walton and her opinion and am prepared to follow it and am prepared to declare [Sarabian] unavailable [as a witness] subject to being reopened though if we cant agree on the photographs.

Subsequently, the photographs were admitted into evidence by stipulation of counsel and were used in cross-examination of one of plaintiffs causation experts. Defendants counsel also relied upon the photographs in his closing argument to demonstrate that the vineyards were in distressed condition as a result of the 2001 freeze, not the 2002 spraying.

Defendants counsel did not, however, attempt to use Sarabians written reports or notes to impeach plaintiffs experts, nor did defendants own experts testify that they relied on Sarabians reports in forming their own opinions. Thus, if defendant wanted and needed further evidence from Sarabian, it should have proffered that evidence, as the trial court invited it to do. In failing to do so, defendant has waived the issue on appeal.

Far from ignoring the realities of trial practice, our conclusion is based on this reality of trial practice: defendants counsel did not attempt to further use Sarabians testimony or reports because such evidence would conflict with both its theory of the case and the testimony of its own experts. Defendants theory of the case, by the time it had conceded liability and began presenting its own evidence, was that the spray mixture had damaged the crop on the vine at the time of spraying, but that it did no permanent damage and plaintiff was trying to take advantage of the situation to make himself a multimillionaire.

Defendants expert testified that he had viewed the vineyards at various times after the spraying and, in his opinion, there was no permanent damage to the vines. Defendants counsel did not attempt to refer to Sarabians materials in questioning the expert or attempt to establish, contrary to the experts testimony, that there was indeed permanent damage but that it was caused by the 2001 frost. Accordingly, defendant has not demonstrated that issues concerning the Sarabian evidence resulted in prejudice even if defendant preserved those issues for appeal. (See Evid. Code,  354 [A verdict shall not be set aside, nor shall [a] judgment be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error is of the opinion that the error resulted in a miscarriage of justice .].)

Finally, defendant has filed a request for judicial notice (or, in the alternative, that we take new evidence in the matter) of information showing that Sarabian in fact testified in another case shortly after representing that he was medically incapable of testifying in the present case. We previously deferred consideration of the motion; we now deny it. The evidence establishes neither misconduct by plaintiff and his attorney nor that defendant was prejudiced by the absence of Sarabian from the present case.

II. Plaintiffs Economics Expert

Plaintiffs economics expert, Richard Nordstrom, testified that, based on data he recorded as he walked plaintiffs vineyards with agricultural experts, he was able to calculate that approximately half of plaintiffs individual vines would eventually have to be replaced because of injury from the 2002 spraying. The agricultural experts testified generally that they walked the fields with Nordstrom, examined each vine in random rows, and assigned to each vine a numerical probability that it would survive in the future. Defendant complains that a substantial portion of Skoutis damages claim was based on the opinion of [his] economist expert, Dr. Richard Nordstrom, that about 50 percent of the vines in Skoutis vineyards were so severely damaged that they would have to be removed and replaced. But there was no evidence to support Nordstroms 50-percent calculation.

The exact nature of defendants complaint is somewhat unclear. It is summarized in defendants opening brief on appeal as follows: Nordstrom arrived at his 50-percent opinion from a sampling of some vines in Skoutis vineyards. Broken down by vineyard, [a] chart reported a number of sampled vines falling into each of various categories of chances of vine survivability [in the years following the spray damage]. From these numbers, Nordstrom extrapolated how many of all of Skoutis vines would need to be removed and replaced. [] There was no evidence at trial, however, to verify the accuracy of the sampling data from which Nordstrom calculated the percentage of permanently damaged vines. Nobody testified, for example, that, as represented on the chart, at [one vineyard], only 13 of 333 sampled vines had an 80 percent or better chance of survival.

The only preverdict objection to this testimony we have found in the record (we will discuss its timeliness and effect below) is in a Motion to Exclude Portions of Dr. Nordstroms Testimony, filed four days after the relevant testimony. The primary thrust of the motion was to limit testimony about lost profits because the opinion evidence ignored the level of plaintiffs past profits. In passing, the motion stated: Dr. Nordstroms calculations indicate that substantial portions of vineyards need to be replaced and removed as a result of dead or dying vines. There has been no evidence introduced by the Plaintiffs which would support Dr. Nordstroms contention that over 50 % of the vineyard needs to be replaced.

Evidence Code section 353 provides: A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.

The purpose of the requirement of a clear, specific, and timely objection to evidence is to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the [party opponent] an opportunity to establish its admissibility. [Citation.] (People v. Hayes (1999) 21 Cal.4th 1211, 1261; see also In re Joy M. (2002) 99 Cal.App.4th 11, 20.) Here, the objection in the trial court failed entirely to fulfill that purpose.

Foundational testimony is often a matter of degree, and experienced trial lawyers constantly have to balance the need for detail and the risk of boring the jury into a state of disinterest or resentment. This is often seen in establishing the qualifications of an expert: the opposing party may stipulate to the experts qualifications to avoid further impressing the jury with those qualifications or, in other cases, the opposing party may vigorously contest the qualifications of a more marginal expert. Regardless of the opponents strategy, however, the proponent of the evidence is entitled to know whether the opposing party objects to the foundation when the expert is tendered, so that the proponent may introduce further evidence to meet the objection.

When the issue is raised for the first time on appeal, the proponent of the evidence may unfairly be prevented from providing any additional foundational evidence the trial court might have found necessary after a timely objection. Defendant has not shown that Nordstroms testimony was so fundamentally flawed that plaintiff could not have provided sufficient additional foundation had he been on notice that such was required. Instead, the record suggests defendants counsel simply elected to introduce his own evidence that Nordstroms conclusions were wrong, instead of allowing plaintiff to bolster Nordstroms testimony with further, detailed evidence of the source of Nordstroms data.

Even if we ignored the absence of a trial court objection and attempted to address the issue on appeal, we still would be confronted with the lack of specificity of defendants objection. Neither possible construction of the objection has merit.

As we see it, defendants contention could mean one of two things: First, it could mean that plaintiff did not introduce evidence that each specific, sampled vine was in the condition recorded by Nordstrom and used in his calculations. Second, it could mean that the methodology of assigning to a vine a 20, 50, or 80 percent chance of survival was scientifically unproven.

As to the first possible contention, the evidence established the witnesss expertise in statistical analysis. He testified without objection that the sampling was random and sufficiently representative to produce a statistically valid result. Both Nordstrom and the two agricultural experts testified about the method by which the sample data was collected. Defendants expert criticized the selection of the samples -- that they were not truly random but were the rows closest to vehicular access points -- and disagreed with the number of dead vines, but offered no criticism of either the number of samples or the statistical extrapolation of the samples.

Defendant has cited no authority for the proposition that, in addition to testimony establishing the method of sample collection, there must be evidence of each individual sample result. Such a requirement would render statistical evidence based on sampling inadmissible in virtually every case. For example, in a criminal DNA case, defendants proposed rule would require the laboratory technicians to testify about every specimen used to compile the database against which the known DNA sample is measured, which is not the law. (See People v. Venegas (1998) 18 Cal.4th 47, 63.) In a race discrimination case, defendants rule would require evidence about each person surveyed as a precondition to admissibility of the statistical analysis of, for example, general population statistics, which is not the law. (See Moore v. Hughes Helicoptors, Inc. (9th Cir. 1983)  708 F.2d 475, 482.)

Instead, the foundation required for admissibility of expert statistical or survey evidence is that the methodology is professionally reasonable. (See Evid. Code,  801.) Here, plaintiff provided direct testimonial evidence of the sampling method and of the manner of recording the results and interpreting the results. Even if defendant had made a timely and specific objection to the expert testimony on this basis, which it did not, plaintiff established an ample foundation for the admissibility of the testimony.

As to the second possible contention, both of plaintiffs agricultural experts testified that they were able to assign to each sampled vine a likelihood that it would survive as a productive vine after the spray damage. Nordstrom testified that he and the agricultural experts went back to the fields the next year and looked at each vine to determine the degree to which the experts survival analysis was validated over the course of time. He testified there was a high correlation between predicted results (which he personally recorded the previous year based on the agricultural experts evaluation of the vine) and the result he observed the next year. Taken together, this evidence established sufficient scientific reliability of the data upon which Nordstrom relied and provided an adequate foundation for his expert conclusions. Particularly in the absence of a specific and timely objection to the scientific basis for the data relied upon by Nordstrom, there was no basis for the exclusion of the evidence.^[1]

D. Lost Business Opportunity Damages

Defendant contends Nordstroms testimony provides insufficient evidence to support the portion of the judgment based on plaintiffs lost opportunity to buy green grapes on the vine and process them into raisins in 2002 and 2003. Plaintiff testified he would have bought and processed more grapes in those two years, as he had in 2001, but that he was unable to fully finance this enterprise because of his losses from the 2002 injury. As a result, he bought and processed some grapes on the vine in 2002 and 2003, but not as many as were available on the market and he wanted to buy. The jury awarded $467,629 on this portion of plaintiffs case.

Plaintiff did not quantify the amount of grapes he would have bought, nor did he identify any particular growers with whom he would have contracted. Nordstrom testified to his opinion on lost profits. He testified that plaintiff had informed him of a plan to work up to the purchase of 1,000 acres of grapes on the vine (green grapes); he began the program in 2001 with the purchase of 522 acres, processed the grapes into raisins and sold them at a profit. Nordstrom then looked at green grape prices and raisin prices for the following years. He forecast that plaintiff would have purchased 700 acres of grapes in 2002 but for the fact that he had no money, he couldnt do it, he was only able to get 285, so his intention was real, he did spend some money to do that, but he couldnt spend as much as he wanted to because of the damage to his 2002 crop, which reduced his ability to obtain financing for the green grape project secured by plaintiffs own growing crop. Similarly, Nordstrom forecast plaintiff would have bought 855 acres of green grapes in 2003, but had only been able to purchase 49 acres.

The fundamental concept behind Nordstroms projections was that when the price for raisins was low, the cost of production made it difficult for the guy with only 17 acres to produce raisins at a profit. Small growers were therefore willing to sell pre-harvest grapes at a low price to salvage some cash flow from the season. Nordstroms analysis of the raisin market led him to conclude, by contrast to the 2002 and 2003 seasons, in the 2004 season and thereafter, the market for raisins was so strong that small producers could make a profit. Accordingly, the opportunity to buy green grapes at bargain prices would disappear and plaintiffs green grape project would have ended. Nordstrom projected a loss of $855,020 for the two seasons, 2002 and 2003, from plaintiffs inability fully to implement the green grape project; Nordstrom attributed no loss from that project from the 2004 season onward. As noted, the jury awarded $467,629 on this portion of plaintiffs case.

Defendant did not object to Nordstroms testimony. Its primary effort in this area was to attempt to show that financing was available for the green grape project independently of the damage to plaintiffs own 2002 crop and that, whatever the reason for plaintiffs scaled-back green grape purchases in 2002 and 2003, that reason was not a lack of financial capability arising from spray damage to the 2002 crop. More generally, cross-examination of Nordstrom tried to develop defendants theme that plaintiffs experts were trying to make [plaintiff] a multimillionaire, not simply trying to compensate plaintiff for his losses.

Defendant acknowledges on appeal that it did not object, on the basis of inadequate foundation or otherwise, to Nordstroms testimony about damage to plaintiff from the inability fully to implement the green grape project. Defendant says that no objection was necessary to preserve this issue for appeal because its claim is that there was insufficient evidence to support this portion of the jurys award.

Defendant contends the law of damages requires a plaintiff to present the best evidence of damages available given the nature of the case, citing as authority S.C. Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th 529, 538 (Anderson), and that an experts opinion based on facts not otherwise proved cannot constitute sufficient evidence.

Anderson involved claims of lost profits of a contractor who had been unable to bid on a project because the defendant had failed to make timely payment on existing contracts, resulting in a reduction of the contractors net worth and, hence, its bonding capacity. It did not have sufficient capacity to submit a bid bond on the later project, so it was not awarded the contract even though its bid would have been the low bid. It sought damages in the amount of 5 percent of the total bid. Apparently, the only evidence offered in support of this claim was testimony that the contractor generally used a 5 to 8 percent profit and overhead figure in its bids. (Anderson, supra, 24 Cal.App.4th at p. 535.)

At the close of plaintiffs case, defendant moved for nonsuit on the basis of insufficient proof of lost profits, particularly an absence of evidence of historical profitability or likely profitability of the project in question. Plaintiff moved to reopen and made an offer of proof that its gross margins over a five-year period supported the claim of lost profits. (Anderson, supra, 24 Cal.App.4th at p. 535.) The trial court granted nonsuit and denied plaintiffs motion to reopen its case. (Id. at p. 536.)

This court affirmed the judgment. The court stated that the plaintiff had offered no evidence which would have enabled the jury to conclude it was reasonably probable the company would in fact have earned a profit in the amount claimed if it had been able to bid on the later project. (Anderson, supra, 24 Cal.App.4th at pp. 536-537.) The court noted that, generally, the law compels the plaintiff to present the best evidence [of damages] of which the nature of the case is capable. [Citation.] (Id. at p. 538.) Anderson concluded that the plaintiff had not shown it was impossible or impracticable to produce evidence relating to the accuracy of its bid, its ability to competently and efficiently perform, or its likely net profit. (Ibid.)

By contrast, in the present case, Nordstrom presented evidence of the scope and profitability of the green grape project in 2001, the relevant grape and raisin prices in 2002 and 2003, and testified to his basis for assuming an increase in the scope of the project for those years. This is a sufficient evidentiary basis for his opinion on lost profits. Unlike the circumstances in Anderson, the present damages award is supported by the concrete example of the immediately prior year and the market data necessary meaningfully to extrapolate future lost profits.

In this case, the proof appears to have been the best available. Defendant says that plaintiff did not testify as to how many green grapes he would have bought, let alone identify any grape purchases he would have made or prove what price he would have been able to pay for them. We fail to see how plaintiffs personal speculation about things that did not happen is better proof than an experts reasoned opinion based on what did, in fact, happen.

Similarly, there is no merit to defendants claim that there were no foundational facts to support Nordstroms opinion concerning lost profits. Defendant quotes Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 696: An experts opinion must not be based upon speculative or conjectural data. If the experts opinion is not based upon facts otherwise proved or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence. In Toscano, the plaintiff accepted an oral offer of employment from defendant. He quit his present job and then defendant withdrew the offer of employment. The plaintiff sued for lost wages on a promissory estoppel theory, even though his present employment and the offered employment were at-will. (Id. at p. 691.) The court held that the plaintiff could not recover wages he would have made from the new employer, but could recover damages based on lost future wages from the former at-will employer so long as the amount was not speculative or remote, and was supported by substantial evidence. (Id. at p. 692.)

Plaintiffs damages expert in Toscano testified that she calculated lost income by simply assuming plaintiff would have remained at his previous employment until retirement or that, if he had quit the previous employment, it would have been for a job with comparable pay. Accordingly, the expert simply multiplied plaintiffs past annual income by the number of years until he would have retired. (Toscano v. Greene Music, supra, 124 Cal.App.4th at p. 696.)

The appellate court noted that the evidence failed to address the other critical factor in at-will employment, namely the employers willingness to continue to employ a particular employee: the evidence does not establish with any reasonable certainty that [the previous employer], an at-will employer who had the right to terminate [plaintiff] at any time for any reason would have continued to employ him until the end of his career. (Toscano v. Greene Music, supra, 124 Cal.App.4th at p. 696, fn. omitted.) The court remanded for a new trial on damages. (Id. at p. 697.)

In the present case, as we have seen above, the evidence established what plaintiff did with the green grape project in 2001 and his partial implementation of the project in the next two years. Thus, the evidence established what market conditions prevailed in those years and provided sufficient evidence to establish with reasonable certainty the amount of plaintiffs loss in those two years.

Disposition

The judgment is affirmed. Plaintiff and co-plaintiff are awarded costs on appeal.

_________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

________________________________

CORNELL, J.

________________________________

DAWSON, J.

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^[1] Defendants additional claim that Nordstroms testimony was inadmissible because plaintiffs other experts (arguably) disagreed with Nordstroms conclusion that 50 percent of the vines needed replacement is without merit. Such disagreement goes merely to the weight, not the admissibility, of the evidence.