Another Planet Entertainment v. Giraudo CA1/5

Filed 5/4/21 Another Planet Entertainment v. Giraudo CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

ANOTHER PLANET
ENTERTAINMENT LLC, et
al., A158544, A159341
Plaintiffs and
Appellants, (Alameda County Super.
Ct. No. RG15791797)
v.
LOUIS J. GIRAUDO, as
Trustee, etc., et al.,
Defendants and
Respondents.

Plaintiffs and appellants Another Planet Entertainment
LLC, Gass Entertainment LLC, Another Planet Touring LLC and
BGCA Management LLC (collectively, “APE”) appeal from a
judgment entered in favor of defendants and respondents the
Robert M. Piccinini Trust utd March 18, 2002, and Louis J.
Giraudo in his capacity as Trustee of the Robert M. Piccinini
Trust (collectively, “Trust”) following a bench trial. The trial
court denied APE’s request for specific performance of a contract
allowing it to purchase Trust’s 30 percent share of the company
at a preset formula on the grounds that the agreement was not

1
supported by adequate consideration and was not just and
reasonable. (Civ. Code, § 3391, subds. 1 & 2.) It denied APE’s
alternative claim for damages for breach of contract on the
grounds that such a claim was based on the value of the
company, and APE had presented no evidence of the value of the
company at the time of the breach. We conclude the trial court
properly denied specific performance based on inadequate
consideration and do not reach the issue of whether specific
performance was also properly denied because the contract was
not just and reasonable. We also conclude the court properly
denied damages and affirm.
I. FACTS AND PROCEDURAL HISTORY
A. Background—Formation and Financing of APE
Gregg Perloff worked in the concert promotion business Bill
Graham Presents starting in the 1970s. He started APE in 2003.
Perloff needed capital for his venture, and Steven Kay, a San
Francisco business attorney, introduced him to Robert Piccinini,
a Modesto-based businessman who owned the Save Mart grocery
chain and had invested in numerous other enterprises, including
eventually a minority interest in the Golden State Warriors.
Piccinini built his career around personal relationships founded
on trust, but he also “drove a hard bargain” and had a reputation
for being frugal.
Perloff and Piccinini “hit it off” immediately. Piccinini
invested in APE and guaranteed a line of credit in exchange for a
30 percent interest in the company, which was held by the Trust.
Perloff owned the remaining 70 percent and was its Chief

2
Executive Officer (CEO) in charge of its day-to-day operations.
The company’s Board of Directors was composed of three seats
controlled by Perloff (Perloff, Sherry Wasserman (the President of
APE) and Stephen Welkom (the Chief Operating Officer of APE)
and two seats controlled by Piccinini (Piccinini and Kay).
The terms and conditions of Piccinini’s investment in APE
were documented in an agreement entitled the Summary of
Terms, executed in November 2003, which outlined the
co-owners’ responsibilities to each other. It provided that
Piccinini would receive a pro rata distribution whenever Perloff
received one, and gave Piccinini the right to see some of the
company’s financial information.
The so-called Death Provision in the Summary of Terms
addressed the parties’ rights in the event one of them died. The
provision allowed the survivor or the decedent’s estate to request
that APE or the survivor purchase the decedent’s shares. If that
purchase did not occur, APE had to liquidate and distribute the
proceeds pro rata. No other sale of APE was permitted unless
both Perloff and Piccinini approved the sale.
APE grew and became successful, and it was profitable for
all but two years. In addition to producing events such as
Outside Lands in Golden Gate Park each year, it eventually held
the exclusive rights to book shows and events at venues such as
the Greek Theater in Berkeley, the Fox Theater in Oakland, and
the Bill Graham Civic Auditorium in San Francisco.
Piccinini was active on APE’s Board and provided advice
regarding the operations of the company. He referred to APE as

3
his favorite investment. Both he and Perloff wanted the company
to continue operations if anything happened to one of them, but
Piccinini did not want to continue his involvement in the
company in the event Perloff died or became incapacitated and
was no longer involved.
B. Piccinini’s Health Problems
Piccinini was hospitalized several times in 2012 and at
about that time his health took a turn for the worse. He suffered
from heart disease, liver disease, kidney failure, recurrent
pneumonia and a condition known as hepatic encephalopathy,
which is associated with liver disease and involves the
accumulation of excess ammonia in the bloodstream. This last
condition causes forgetfulness, bad judgment and fatigue.
Piccinini was a private person and did not disclose his health
problems to Perloff and the people associated with APE, although
he would tell Perloff about his hospitalizations after the fact.
Piccinini’s adult daughter Nicole Pesco noted that although
Piccinini had been an incredibly sharp businessman throughout
most of his career, he aged dramatically and did not appear to be
himself during this period and she was concerned for a time that
he had Alzheimer’s disease or dementia. Dr. Auen, Piccinini’s
treating physician and friend, reported that Piccinini had an
acute episode of hepatic encephalopathy that lasted for six
months starting in September 2012, which could have affected
his ability to understand documents he was signing.

4
 C. Option/Put Agreement
Kay viewed the Death Provision in the original Summary of
Terms as a “placeholder.” After a Board meeting on May 7, 2012,
Welkom, Kay and Piccinini had a conversation in which Kay
mentioned that Piccinini and Perloff could create a new
agreement that would replace the Death Provision in the original
Summary of Terms. Piccinini agreed and told Kay to “write up”
the agreement. Two days later, Welkom provided Kay with a
copy of the Death Provision.
In early September, Kay prepared a “Buyout Scenario”,
stating the terms of a potential buy/sell agreement that
eventually became the “OPTION AND PUT AGREEMENT” at
issue in this case.1 Kay provided a copy to Perloff, but did not
send one to Piccinini, who did not use email. On September 6,
2012, Perloff and Kay drove to Modesto to meet with Piccinini
and discuss the buy/sell agreement in generic terms. The day
before the meeting, Piccinini had an appointment with Dr. Auen,
and was noted to be “very tired and fatigued” and nearly fell
asleep during the examination.
In late 2012, Kay spoke with Giraudo, who was a close
friend of Piccinini’s and who told him that Piccinini’s “days were
numbered.” Kay responded, “I told those guys they’ve got to get
up there.” On December 6, 2012, Perloff traveled to Modesto to

1 A “put option” is an agreement giving an owner the right
to sell a security for a predetermined price within a specified time
frame. It is the inverse of a “call option,” which gives a buyer the
right to buy a security from the seller of the option. (See Olagues
v. Icahn (2d Cir. 2017) 866 F.3d 70, 72, fn 1.)

5
meet with Piccinini, who took the meeting in his home. They
discussed the buy/sell agreement. Perloff had several
conversations over the months regarding a buy/sell agreement,
and Perloff remembered he discussed the length of time that APE
would have to exercise its option. Perloff recalled that they
discussed the formula for the option.
Piccinini and Perloff executed the “OPTION AND PUT
AGREEMENT” (“Option/Put”) on March 18, 2013. It gave APE
the option to purchase the Trust’s 30 percent interest in the
company at a set formula (the “purchase price”) in the event
Piccinini died. The option was to be exercised within one year of
Piccinini’s death. The Option/Put also gave Piccinini or his
successor the right to require APE to purchase the Piccinini
interest using the same set formula if Perloff died or became
incapacitated.
The formula used to determine the purchase price took
APE’s average EBIDA (earnings before interest, depreciation and
amortization) during the five years preceding the triggering event
(the “lookback provision”) and multiplied that figure by three (the
“multiplier”). The purchase price for the Piccinini interest was 30
percent of the resulting number.
Kay was paid by APE for his role in drafting the
Option/Put.
D. APE’s Efforts to Exercise Option and Lawsuit
Piccinini died on March 24, 2015, approximately two years
after the Option/Put was signed. He was 77 years old, and the

6
cause of death was thought by his doctors to be a combination of
heart, kidney and liver failure.
On June 23, 2015, APE provided the Trust with a Notice of
Exercise of Option Rights, stating it was exercising its option to
purchase, at a purchase price to be determined in accordance
with the formula in the Option/Put. In a letter dated October 19,
2015, counsel for the Trust rejected APE’s exercise of its option
rights “[p]ending further analysis, and the gathering of
additional information,” and noted the Option/Put appeared to be
“entirely one-sided.”
APE filed this lawsuit on November 2, 2015. The fifth
amended complaint was filed in October 2017. It alleged a single
cause of action for breach of contract and sought specific
performance of the Option/Put. The complaint also contained two
paragraphs alleging that in the alternative, if specific
performance was not granted, APE “is entitled to recover
damages because Mr. Piccinini’s ownership interest had an
intrinsic monetary value when the option/put agreement was
executed, and the value of the interest at the time of [the Trust’s]
breach was higher than its value at the time the Option/Put
Agreement was made.”
The case proceeded to a bench trial, primarily on the theory
that APE was entitled to specific performance of the Option/Put,
i.e., it was entitled to buy the Piccinini shares for the formula
stated in the Option/Put. Because specific performance was only
appropriate if APE bore its burden of establishing that the
Option/Put was supported by adequate consideration and was

7
“just and reasonable” (Civ. Code, § 3391, subds. 1 & 2), it
presented evidence that Perloff and Piccinini had a cordial
business relationship, and both wanted the company to continue
operations, and that Piccinini had an interest in “monetizing” his
shares, which were not readily transferable because they were
only a minority interest in a closely held corporation.2 Although
APE did not completely disavow an alternative claim for damages
based on breach of contract, it did not, in its case-in-chief, present
any evidence regarding APE’s value at any point in time.
The Trust’s theory was that APE had not proven that the
consideration supplied to Piccinini for the right to purchase his
shares was adequate. It called Peter Woelflein, a valuation
specialist at Deloitte Transactions and Business Analysis LLP,
who analyzed the value of the Piccinini interest on February 13,
2013 (the date of the Option/Put) and March 31, 2015 (the end of
the month following Piccinini’s death, and the date used by APE’s
outside certified public accountant to calculate the purchase price
for the Piccinini shares under the Option/Put). Woelflein used
two methodologies: the discounted cash flow method (an
income-based approach) and the guideline company method (a
market approach).
On both dates considered by Woelflein, the purchase price
yielded by the formula in the Option/Put was substantially less

2 APE argued that Piccinini would have had difficulty
selling a minority interest in a closely held corporation for any
price on the open market, and therefore had an interest in a
contract provision which gave him the right to sell his shares for
a set formula price.

8
than the fair market value of the Piccinini interest:
approximately 10 percent of the fair market value on February
13, 2013, and approximately 23 percent of the fair market value
on March 31, 2015. Woelflein testified that the formula’s use of a
multiplier was lower than anything he had seen used in the
entertainment business, and that a lookback period is usually
limited to two years to obtain the most current information
regarding a company’s finances.
In rebuttal, APE called Gary Kleinrichert as a valuation
expert for the purpose of critiquing Woelflein’s analysis.
Kleinrichert disagreed with the companies Woelflein had selected
for his guideline company method of valuation, with the weight
given to that approach, with the EBIDA margin and revenue
growth rate used in the income-based approach, with the amount
of the discount to account for lack of marketability, and with the
lack of a “key person” discount to account for the value that only
Perloff could bring to the company. Kleinrichert had not been
retained to offer his own opinion as to APE’s value.
The trial court issued a 33-page proposed statement of
decision in which it denied APE’s request for specific performance
and damages. It concluded APE had not carried its burden of
proving the consideration was adequate given the disparity
between the valuation produced by the formula in the Option/Put
and the true value of the company. It also concluded the contract
was not “just and reasonable” as to Piccinini because he was
cognitively impaired in the months leading up to the execution of
the Option/Put and the negotiations were not sufficient to advise

9
him about the relationship between the valuation produced by
the buyout formula and the true value of the company. The court
specifically credited Woelflein’s testimony regarding APE’s value,
and noted that APE had not presented its own valuation. It
rejected the claim for damages, noting that there had been no
evidence presented regarding APE’s value as of the date of the
alleged breach (Trust’s failure to honor the option to purchase
and sell APE the Piccinini shares for the price derived from the
formula in the Option/Put).
APE filed a motion to reopen the evidence and asked the
court to admit and consider its October 2015 financial statement
to prove damages. The court denied the motion, in part because
APE had objected to producing the statement before trial. It
issued its final statement of decision finding against APE in its
request for specific performance or damages based on its breach
of contract claim. Judgment was entered, and attorney fees were
awarded to Trust.3 APE appealed.
II. DISCUSSION
A. Specific Performance—Civil Code section 3391
1. General Principles
“To obtain specific performance after a breach of contract, a
plaintiff must generally show: “ ‘(1) the inadequacy of his legal
remedy; (2) an underlying contract that is both reasonable and
supported by adequate consideration; (3) the existence of a

3 Trust appealed the attorney fee award, but raises no
challenge to the attorney fees in this appeal except to the extent
it argues that reversal of the judgment changes who should be
designated the prevailing party below.

10
mutuality of remedies; (4) contractual terms which are
sufficiently definite to enable the court to know what it is to
enforce; and (5) a substantial similarity of the requested
performance to that promised in the contract.’ ” (Real Estate
Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472
(Vallas).) The second criterion arises from Civil Code section
3391, which, as relevant here, provides, “Specific performance
cannot be enforced against a party to a contract in any of the
following cases: [¶] 1. If he has not received adequate
consideration for the contract; [¶] 2. It is not, as to him, just and
reasonable. . . .” A party seeking specific performance has the
burden of proving that Civil Code section 3391 has been satisfied.
(Vezaldenos v. Keller (1967) 254 Cal.App.2d 816, 829.)
An order granting or denying specific performance of a
contract is reviewed for abuse of discretion. (Vallas, supra, 160
Cal.App.4th at p. 472.) Findings under Civil Code section 3391
have been said to be reviewed for substantial evidence. (Paratore
v. Perry (1966) 239 Cal.App.2d 384, 386; Loeb v. Wilson (1967)
253 Cal.App.2d 383, 388.) “But this test is typically implicated
when a defendant contends that the plaintiff succeeded at trial in
spite of insufficient evidence. In the case where the trier of fact
has expressly or implicitly concluded that the party with the
burden of proof did not carry the burden and that party appeals,
it is misleading to characterize the failure-of-proof issue as
whether substantial evidence supports the judgment. This
follows because such a characterization is conceptually one that
allows an attack on (1) the evidence supporting the party who

11
had no burden of proof, and (2) the trier of fact’s unassailable
conclusion that the party with the burden did not prove one or
more elements of the case.” (In re Aurora P. (2015) 241
Cal.App.4th 1142, 1156.)
Where the issue on appeal turns on a failure of proof at
trial, the question for a reviewing court is whether the evidence
compels a finding in favor of the appellant as a matter of
law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570–571
(Roesch); Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.)
Specifically, the question becomes whether the appellant's
evidence was (1) “uncontradicted and unimpeached” and (2) “of
such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a
finding.” (Roesch, supra, at p. 571.) We apply this standard
when reviewing a ruling that the plaintiff did not carry his
burden of proving adequate consideration or that the contract
was just and reasonable under Civil Code section 3391.4
2. Consideration
The court found specific performance unavailable under
subdivision 1, which requires a showing of “adequate
consideration.” APE had the burden of proof on this issue, but
presented no evidence that showed the formula price, with or
without the nonpecuniary benefits to Piccinini, approximated the

4 The court will not consider APE’s May 3, 2021 letter brief
regarding the standard of proof because the cause had been
submitted at the end of oral argument, and counsel provided no
good cause for vacating submission. (See Cal. Rules of Court,
rule 8.256(d)(1) & (e).)

12
actual value of his shares. Its key witnesses—Perloff, Welkom
and Kay—did not know the value of Piccinini’s interest at the
time the Option/Put was executed, and APE specifically
instructed the company’s valuation expert to limit his opinion to
a critique of the methodology used by Trust’s valuation expert,
and not to offer an opinion about the company’s value.
In contrast, Trust presented expert testimony that the
five-year lookback period was too long, and the multiple of three
too low, and that a reasonable formula would have relied on a
two-year lookback and a multiple of 7.5. The Trust’s expert
opined that the purchase price yielded by the formula was only
about 10 percent of the true value of the Piccinini shares at the
time the Option/Put was signed, and about 23 percent of the true
value at the time of Piccinini’s death.
The “inadequacy of price standing alone” may be grounds
for denying specific performance. (O’Hara v. Wattson (1916) 172
Cal. 525, 535.) There is no specific degree of variation between
the value and the agreed upon price that must exist. (Haddock v.
Knapp (1915) 171 Cal. 59, 62.) “Whether the sales price in
any particular case is fair and adequate is ‘peculiarly a question
of fact for the trial court to determine in the light of all the
circumstances. . . .’ ” (Gilbert v. Mercer (1960) 179 Cal.App.2d 29,
31.)
The trial court could reasonably conclude that the purchase
price yielded by the Option /Put formula was inadequate both at
the time the agreement was executed and the time that the
option was exercised after Piccinini’s death. (See Baran v.

13
Goldberg (1948) 86 Cal.App.2d 506, 508, 513 (Baran) [affirming
trial court’s determination that consideration inadequate where
purchase price under contract was $11,500 and value of property
was $16,500 (purchase price was approximately 69 percent of
value)].)
APE argues that in assessing the adequacy of the
consideration, the trial court did not take into account the
Option/Put’s contingent nature. Citing Ferguson v. Yaspan
(2014) 233 Cal.App.4th 676 (Ferguson), it notes that no one could
predict when Piccinini would die or whether Perloff would
predecease him, so it was unknown at the time the Option/Put
was executed at what point in time the sale would take place and
what the purchase price would be.
In Ferguson, two couples who co-owned a flat in London
agreed that in the event both members of one of the couples died,
the other couple would have the option of buying out the interest
of the deceased couple for $325,000. (Ferguson, supra, 233
Cal.App.4th at pp. 681–682.) The court concluded that the many
variables that existed when the contract was signed in 1991 (who
would die first; would the housing market go up or down) made it
appropriate to look to the point in time the contract was signed in
determining whether it was fair—which it was. (Id. 686–687.)
The agreement in Ferguson was not alleged to be unfair
when it was executed. (Ferguson, supra, 233 Cal.App.4th at
pp. 686–687.) The buyout price applied evenhandedly to both
couples who signed the contract—it was simply a matter of
fortuity as to who would die first. (Ibid.) In this case, the court

14
found the purchase price yielded by the formula in the
Option/Put to be inadequate at the time it was signed. Further,
it called for the sale of Piccinini’s shares using the formula price
regardless of whether Piccinini or Perloff died, and did not call for
the sale of Perloff’s shares using the formula under any
circumstances. Thus, the contingencies were not reciprocal in the
same sense they were in Ferguson.
Nor is a different result required by Walker v. Calloway
(1950) 99 Cal.App.2d 675, cited by APE, in which an ex-wife
moved to another state to care for her dying ex-husband at his
request, in exchange for his promise to leave her his estate. The
court held that although the ex-husband died after only four
months, the wife’s move and provision of care for this period was
sufficient consideration to allow her complaint seeking specific
performance of the agreement to leave her the estate, noting:
“ ‘the extent of the consideration is to be measured by the breadth
of the undertaking rather than by the eventuality. Respondent
might have had to serve and nurse for many years. Each party to
the agreement knowingly stood the loss or gain by that
contingency.” (Id. at p. 682.) Walker, which was decided at the
demurrer stage rather than after a trial, does not stand for the
proposition that consideration will be adequate whenever it
depends on events that cannot be defined with certainty at the
time the contract was executed. And it was not dealing with a
consideration that was found to be lacking at the inception of the
contract.

15
 APE also cites Weinstein v. KLT Telecom, Inc. (Mo. 2007)
225 S.W.3d 413, 415–416, in which the court concluded there was
no failure of consideration where the plaintiff sold his majority
interest in a company and had the option of selling his remaining
shares to the buyer for $15 million within a specified period. This
contract was held enforceable even though the shares had become
worthless by the time the option was exercised. (Id. at p. 416.)
Because the option was “a gamble, a lawful wager made between
sophisticated parties as part of an arms-length transaction,” the
consideration was assessed as of the time the agreement was
executed, when the shares were worth millions of dollars. (Id. at
pp. 415–416.) Here, there was no showing by APE that the
formula ever reflected the true value of the company, or that the
consideration was adequate at the time the contract was
executed. At least, the evidence did not legally compel a finding
to the contrary. (Roesch, supra, 24 Cal.2d at pp. 570–571.)
APE also argues Piccinini received many intangible
benefits from the Option/Put that rendered the consideration
adequate: he “monetized” a minority interest in a closely-held
corporation that would otherwise be difficult to sell; he made it
possible for APE to continue operations after his death because it
would not be obligated to liquidate if an agreement could not be
reached (unlike the Death Provision of the original agreement);
and in the event Perloff died first, Piccinini would get the benefit
of a “lookback” to a period when the company would be worth
more (and the purchase price would be higher) because of
Perloff’s stewardship.

16
 These factors do not change the fact that at the time the
Option/Put was executed, the formula it utilized yielded a
purchase price of about 10 percent of what the fair market value
of Piccinini’s share was estimated to be, according to the only
valuation expert who offered an opinion regarding the company’s
value. That expert testified that both the multiplier and
lookback were unreasonable. APE did not present evidence that
the formula would ever yield an approximation of the fair market
value. The trial court specifically found that the intangible
benefits to Piccinini under the Option/Put did not offset this
“gross disparity.”
APE argued at trial that the nonmonetary consideration
was adequate because Piccinini was a shrewd businessperson
and the Option/Put satisfied several of his nonmonetary
objectives, rendering the consideration reasonable. But
considerable evidence was presented by the Trust that at the
time the Option/Put was executed, Piccinini’s once-legendary
business acumen was significantly impaired by his physical
ailments, one of which was a build-up of ammonia in the blood
that could have affected his ability to understand the documents
he was signing. Indeed, given the evidence that was presented
regarding Piccinini’s frugality, it was reasonable for the court to
conclude he would consent to a purchase price of only a fraction of
the value of the company if in fact he was impaired. Whether or
not this impairment would mean the contract was not “just and
reasonable” under Civil Code section 3391, subdivision 2, it
supports the trial court’s conclusion that the consideration should

17
not be deemed adequate simply because Piccinini agreed to the
terms of the Option/Put.
APE argues that because Piccinini accepted the benefit of
the Option/Put for two years in the form of APE’s “buy/sell
assurance, its distributions, and its employees’ labors,” he cannot
now complain that it was unjust. The “distributions” and
“employee’s labors” are benefits that inured to Piccinini by virtue
of his 30 percent ownership of APE, not because of the
Option/Put. And although the Option/Put gave him a buy/sell
assurance, the court found that assurance to was not supported
by adequate consideration. APE cannot point to it as an
equitable basis for preventing Trust from arguing against specific
performance.
We also reject APE’s argument that it had “the [r]ight to
[a]ssociate” with business partners of its own choosing, which
was violated by the court’s denial of specific performance because
that denial allowed Trust, which is now controlled by Piccinini’s
heirs rather than Piccinini himself, to continue owning 30
percent of the shares. It may be that both Perloff and Piccinini
wanted to be in business with each other, and not with their
counterpart’s heirs, but it is questionable whether APE can
assert this argument on behalf of Perloff. In any event, the
“[r]ight to [a]ssociate” does not take precedence over Civil Code
section 3391, which requires that certain criteria be met before
specific performance can be granted.

18
 APE argues that because the Trust did not prove (or even
allege) that Piccinini lacked the legal capacity to contract when
he signed the Option/Put (see Prob. Code, § 810, 811; Civ. Code,
§ 1556), the court should not have relied on his diminished
cognitive abilities to determine the contract was not “just and
reasonable.” Because we conclude that the trial court’s decision
to deny specific performance of the Option/Put was supported by
its finding under the consideration prong of Civil Code section
3391, subdivision 1, we need not decide whether the court
correctly determined the contract was not “just and reasonable”
under Civil Code section 3391, subdivision 2. The finding of
inadequate consideration was supported by the evidence and was
sufficient to deny specific performance.
B. Alternative Claim for Damages
APE argues that assuming specific performance was not
granted, it is entitled to damages. It urges us to calculate those
damages as the high end of the fair market value of Piccinini’s
shares as calculated by the defense valuation expert at the time
that Trust breached the Option/Put, less the amount APE would
have paid for those shares under the formula. (Maughan v.
Correia (2012) 210 Cal.App.4th 507, 519 [parties agreed damages
for breach of contract of stock option is difference between fair
market value at time of breach and option price].)5 We disagree.

5Assuming this may be a correct measure of damages in
some cases, any damages would be limited by Civil Code section
3359, which provides, “Damages must, in all cases, be reasonable,
and where an obligation of any kind appears to create a right to
unconscionable and grossly oppressive damages, contrary to

19
 APE’s fifth amended complaint alleged that it was entitled
to damages as an alternative to specific performance. However,
it failed to present any evidence concerning the value of the
company at any point in time. This was consistent with APE’s
trial strategy of focusing on specific performance, which would
have been undermined by evidence that the consideration under
the contract formula was substantially less than the fair market
value.
After the court issued its tentative decision denying both
specific performance and damages, APE moved to reopen the
evidence and present a company financial statement from
October 2015. The court denied the motion, in part because APE
had successfully resisted providing the document during
discovery by opposing a motion to compel its production as
irrelevant because APE was not pursuing a claim for damages.6
In its final statement of decision, the court rejected any claim for
damages.

substantial justice, no more than reasonable damages can be
recovered.” It would not be reasonable to simply award APE the
high range of fair market value less the purchase price when the
consideration for the contract was deemed inadequate for the
purpose of granting specific performance. (See Schmidt v.
Beckelman (1960) 187 Cal.App.2d 462, 467, 471 [option to
purchase land worth $250,000 for $33,000 was not reasonable].)

6 In response to Trust’s motion to compel, APE explained,
“we’re not setting out. . . to prove damages.” It noted that if
specific performance was denied, “we would not have been asking
for damages.”

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 The court did not abuse its broad discretion in ruling on the
motion to reopen evidence. (Horning v. Shilberg (2005) 130
Cal.App.4th 197, 208 [ruling on motion to reopen the evidence
reviewed for abuse of discretion]; Rosenfeld, Meyer & Susman v.
Cohen (1987) 191 Cal.App.3d 1035, 1052–1053.) It is
well-established that such a motion may be properly denied when
the decision to not present the evidence was the product of trial
tactics. (Rosenfeld, at p. 1053.) In this case, APE made the
tactical decision not to produce the financial statement, despite
the fact that the statement was well-within APE’s control.
APE argued in the trial court that the defense evidence
regarding the company’s value merited an award of damages,
even if the evidence was not reopened. The trial court rejected
this claim. It concluded that Trust’s valuation of the company on
March 31, 2015, the date used to calculate the proposed buyout
(two weeks after Piccinini’s death) did not prove the value of the
company as of the date the contract was breached (either in July
2015, when APE gave notice of its intent to exercise its option, or
October 2015, when the Trust declined to sell the Piccinini
shares). The court specifically rejected APE’s argument that the
March 31, 2015 valuation was close enough in time to the breach
to prove the value of the company at the time of breach, noting
that the company was alleged in the fifth amended complaint to
have a “ ‘highly variable financial performance’ ” with “ ‘extreme
fluctuations,’ ” such that the expert’s opinion did not suffice to
prove value at the time of breach several months later.

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 We do not disagree that an opposing party’s expert may, in
an appropriate case, supply evidence supporting damages, even
when the plaintiff’s own evidence on that point falls short.
(Farnsworth v. Hunter (1938) 11 Cal.2d 27, 32.) And we also
agree that sometimes, a party may prove the value of a good or
realty at the time of a breach of contract by showing the value at
a time that was only proximate. (See In re Marriage of Hewitson
(1983) 142 Cal.App.3d 874, 882.)
But in this case, the court, sitting as the trier of fact, was
not persuaded that it could infer what the value of APE was at
the time of the breach based on expert testimony about its value
several months earlier. It cited testimony concerning the
volatility of the company’s value, and we note that in support of
Trust’s opposition to APE’s motion to reopen the evidence,
Woelflein submitted a declaration stating that any valuation of
the company on July 2015, when APE gave notice that it
intended to exercise its option, or October 2015, when Trust gave
notice the option was declined, could not simply be extrapolated
from the valuation in March 2015: “Under applicable appraisal
principles, the analysis would need to be performed ‘from
scratch.’ ”
The court thus found there was no persuasive evidence of
APE’s value at the time of the alleged breach. (See Baran supra,
86 Cal.App.2d at p. 512 [evidence of value at time contract was
entered on September 8 did not prove value on November 8].) As
the trier of fact, the trial court was “ ‘not required to believe even
uncontradicted testimony.’ ” (Madani v. Rabinowitz (2020) 45

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Cal.App.5th 602, 610.) APE had the burden of proving damages.
(Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) To the
extent those damages depended on evidence of APE’s value at the
time of breach, that evidence was not “uncontradicted and
unimpeached” or “of such a character and weight as to leave no
room for a judicial determination that it was insufficient to
support a finding.” (Roesch, supra, 24 Cal.2d at p. 571.)
Although we might have viewed the evidence differently in the
first instance, we defer to the trial court’s assessment of the
evidence.
III. DISPOSITION
The judgment is affirmed. Costs to respondent Trust.

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 NEEDHAM, J.

We concur.

SIMONS, Acting P.J.

RODRIGUEZ, J. *

Another Planet Entertainment v. Robert Piccinini Trust / A158544

* Judge of the Superior Court of Alameda County, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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