Unpublished Disposition, 900 F.2d 262 (9th Cir. 1990)

MEMORANDUM^* 

This appeal raises several issues concerning the formation and repudiation of an oral joint venture agreement to manage and produce music of popular artists. The Cohns, who denied the existence of any contract, are Bruce Cohn, Bruce Cohn Management, Inc., and Danjoe Corp. The Katzes asserted the formation of the contract and include David Katz, Katz-Cohn Productions, Inc. and Katz-Cohn Management, Inc. We affirm the district court rulings and judgments on liability and damages.

With regard to the issues within the scope of the joint pretrial statement, one of the disputed factual issues stipulated by the parties was: " [w]hether a joint venture was formed between plaintiffs and defendants and, if so, its terms." We find the 1983 contract formation issues were adequately contained in the joint pretrial statement. See Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985). Because " [a] pretrial order has the effect of amending the pleadings," Acorn v. City of Phoenix, 798 F.2d 1260, 1263 (9th Cir. 1986), we need not address whether the complaint failed to include the 1983 contract formation issues.

On the judicial admissions contentions, we apply federal law. See American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). First, there are no conclusive judicial admissions in the complaint since it was amended by the joint pretrial statement. See Acorn, 798 F.2d at 1263; E. Cleary, McCormick on Evidence Sec. 265, at 783-84 (1984 ed.). Second, we have already found that the 1983 contract formation issues were embraced within the language of the joint pretrial statement. Therefore, there are no conclusive judicial admissions that the contract was formed no later than December, 1982 in the joint pretrial statement. Finally, we conclude there was sufficient evidence presented at trial concerning a February, 1983 contract. Therefore, there were no testimonial judicial admissions limiting contract formation to 1982. Cf. Montgomery v. Moreland, 205 F.2d 865, 868-69 (9th Cir. 1953).

The Cohns have not demonstrated that the district court was clearly erroneous in finding the Katzes did not make an election of remedies. The district court properly construed California law in concluding that the Katz' remedies were concurrent. See Gherman v. Colburn, 72 Cal. App. 3d 544, 564 n. 12, 140 Cal. Rptr. 330, 343 n. 12 (1977).

The Cohns waived a right to a jury on the division of profits under Fed. R. Civ. P. 49(a). The blanket request for the jury to indicate "the terms of the joint venture contract" was insufficient to raise this particular issue before the trial court. In the absence of a more specific objection--which would have either invited a trial court ruling on this issue or its submission to the jury--the trial court was authorized under Rule 49(a) to make a finding on this and any other omitted issues. Moreover, we conclude that the trial court finding has not been shown to be clearly erroneous under Fed. R. Civ. P. 52(a). See Queen Ins. Co. of Am. v. Larson, 225 F.2d 46, 53 (9th Cir. 1955). The trial court properly harmonized the special interrogatory findings with the evidence. See, e.g., Gallick v. Baltimore & Ohio Ry. Co., 372 U.S. 108, 119 (1963).

The Cohns also contend that the jury verdict on liability is not supported by substantial evidence and challenge the denial of their motion for directed verdict and JNOV. We affirm these rulings and conclude the jury verdict was supported by substantial evidence. We note further that we are precluded from re-weighing the evidence as some of the Cohns' arguments would have us do. See, e.g., Wilcox v. First Interstate Bank of Oregon, N.A., 815 F.2d 522, 525 (9th Cir. 1987); Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1014 (9th Cir. 1985), cert. denied, 474 U.S. 1059 (1986); William Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 668 F.2d 1014, 1026 (9th Cir. 1981), cert. denied, 459 U.S. 825 (1982).

Because the application of each of the factors under Asdourian v. Araj, 38 Cal. 3d 276, 292-93, 211 Cal. Rptr. 703, 713-14 (1985), has not been shown to be clearly erroneous, we affirm the district court's ruling that the contract is enforceable.

The trial court properly submitted the issue of emotional distress damages to the jury. There is no requirement of a finding of bad faith or fraudulent misconduct for emotional distress damages. See, e.g., Young v. Bank of Am. Nat'l Trust & Sav. Ass'n, 141 Cal. App. 3d 108, 114, 190 Cal. Rptr. 122, 126 (1983) (citations omitted) (cited in Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1499 (9th Cir. 1986)). See also Pintor v. Ong, 211 Cal. App. 3d 837, 259 Cal. Rptr. 577, 581-82 (1989) (following Young) ; Stephens v. Coldwell Banker Commercial Group, Inc., 199 Cal. App. 3d 1394, 1402-03, 245 Cal. Rptr. 606, 611 (1988) (same). In the liability phase of the trial, the jury found that the Cohns had breached their fiduciary duty under the joint venture agreement. In the damage stage, the trial judge instructed the jury on the general measure of tort damages pursuant to Cal.Civil Code Sec. 3333 (West 1970).¹  The jury was also instructed that "a breach of fiduciary duty is an intentional act under the law." Under California law, emotional distress damages may be awarded for intentional wrongdoing. See, e.g., Jahn v. Brickey, 168 Cal. App. 3d 399, 407, 214 Cal. Rptr. 119, 124 (1985); Quezada v. Hart, 67 Cal. App. 3d 754, 761, 136 Cal. Rptr. 815, 819 (1977). Sufficient evidence was submitted on which the jury could find that the breach of fiduciary duty proximately caused emotional distress damages to David Katz and that the injuries were severe within the meaning of California law.

The trial judge properly instructed the jury on each element of the case. See, e.g., Bulgo v. Munoz, 853 F.2d 710, 714 (9th Cir. 1988).

The district court did not abuse its discretion in the damages phase of the trial in excluding testimonial evidence that Bruce Cohn held a good faith and reasonable belief that he owed no fiduciary duty. Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir. 1988).

The Cohns have provided no valid basis to challenge the jury's discretion on the size of its award of emotional distress damages. See, e.g., Young, 141 Cal. App. 3d at 115, 190 Cal. Rptr. at 127.

The size of the six-member jury panel for the damages phase of the trial was within the open-court stipulation on jury size, pursuant to Fed. R. Civ. P. 48. Counsel expressly stipulated to the possibility of a six-person jury in the event of "los [ing]" up to two jurors. See Marbury-Pattillo Constr. Co., Inc. v. Bayside Warehouse Co., 490 F.2d 155, 160 (5th Cir. 1974). Accord Fletcher v. McCreary Tire & Rubber Co., 773 F.2d 666, 669 & n. 4 (5th Cir. 1985); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 514-15 (4th Cir. 1985).

We find the other contentions of the Cohns' unpersuasive. We do not reverse the judgment or remand for a new trial. Thus, because the Katzes indicated that they would withdraw their cross-appeal on the dismissal of their punitive damages claim, we do not consider the cross-appeal.

AFFIRMED.