Filed 6/30/21 Truyou Health Inc. v. Creative Flavor Concepts, Inc. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
TRUYOU HEALTH INC.,
Plaintiff and Respondent, G059256
v. (Super. Ct. No. 30-2017-00945121)
CREATIVE FLAVOR CONCEPTS, OPINION
INC., et al.,
Defendants and Appellants.
Appeal from an order of the Superior Court of Orange County, Craig L.
Griffin, Judge. Affirmed.
Bowles & Johnson and David K. Bowles, for Defendants and Appellants.
Rogers, MacLeith & Stolp and Douglas R. MacLeith, for Plaintiff and
Respondent.
* * *
A jury purported to enter a verdict finding that defendant Richard Fischler
intentionally interfered with a contract between plaintiff Truyou Health, Inc. (Truyou)
and nonparty Interush Media, Inc. (Interush). Fischler then filed a motion for judgment
notwithstanding the verdict (JNOV). In its analysis of the motion, the trial court found
no verdict had been reached because the jury’s findings were in conflict and
irreconcilable. So, it denied the motion but granted a new trial. On appeal, Fischler
argues the court erred by denying his JNOV motion because there was no contract with
which he could interfere.
We affirm the trial court’s order without reaching the merits of Fischler’s
argument. As a matter of law, a court cannot grant a JNOV motion if the jury has not
rendered a verdict. Fischler does not challenge this aspect of the court’s ruling. Thus,
1
the court correctly denied Fischler’s JNOV motion since no verdict had been rendered.
I
FACTS
Truyou sells an energy drink mix. In 2012, its predecessor in interest
agreed to supply nonparty Interush with the product for distribution in Asia (the 2012
agreement). Truyou does not manufacture the mix itself. During the relevant time
period, it purchased mix manufactured by defendant Creative Flavor Concepts (Creative)
and then sold it to Interush. Fischler was Creative’s CEO during this period.
In 2015, Truyou, Creative, and Interush entered into an agreement that
restructured the parties’ relationship (the 2015 agreement). The recitals of the 2015
agreement noted the parties’ existing relationship, in which Creative manufactured the
1
We grant Fischler’s unopposed motion to augment the record on appeal with trial
exhibit 214, which consisted of e-mail correspondence between representatives of Truyou
and Interush.
2
mix for Truyou, which then sold it to Interush. The recitals further stated that the parties
“desire[d] that [Creative] manufacture and sell its goods to Interush directly” and that
Truyou would “serve as [Creative’s] broker with respect to [Creative’s] sale of goods to
Interush” and receive a commission.
Truyou filed this lawsuit in September 2017 asserting claims for breach of
contract against Creative and intentional interference with contract and fraud against
Creative and Fischler. The breach of contract claim asserted that Creative had breached
the 2015 agreement by failing to make commission payments. The fraud and interference
claims were based on allegations that Truyou was fraudulently induced into entering the
2015 agreement. In particular, Fischler and Creative falsely promised that Creative
would act in good faith and would not attempt to circumvent the 2015 agreement.
However, Truyou alleged that after the 2015 agreement was signed, Creative stopped
paying commissions and attempted to cut Truyou out of the deal.
The case went to trial. The jury found against Truyou on the breach of
contract and fraud claims. The intentional interference with contract claim was split into
two separate verdict forms. One verdict form focused solely on Fischler’s liability, while
the other focused solely on Creative’s liability. The parties do not explain why this
occurred. Regardless, the jury inexplicably found Fischler was liable on the intentional
interference claim but Creative was not. The jury awarded Truyou $93,184 in
compensatory damages and $47,500 in punitive damages against Fischler.
Following entry of judgment, Fischler filed a motion for JNOV or, in the
alternative, for a new trial. Among other things, he argued the 2012 agreement could not
be interfered with because it was abandoned and replaced by the 2015 agreement. The
2
trial court denied Fischler’s JNOV motion but granted a new trial. Fischler appeals the
order denying his JNOV motion.
2
Truyou also filed a JNOV motion, which was denied.
3
II
DISCUSSION
To establish a claim for intentional interference with contract, Truyou must
show, among other things, that Fischler interfered with an existing, valid contract.
(Ghazarian v. Magellan Health, Inc. (2020) 53 Cal.App.5th 171, 191 [stating elements of
the claim].) Fischler argues that Truyou cannot meet this requirement. Truyou’s claim is
based on interference with the 2012 agreement, but Fischler contends it was superseded
by the 2015 agreement. As such, there was no contract with which Fischler could
interfere, and he maintains the trial court erred as a matter of law by denying his JNOV
motion. We disagree.
For a court to “have jurisdiction to enter a judgment notwithstanding the
verdict . . . there must be a verdict.” (Mish v. Brockus (1950) 97 Cal.App.2d 770, 776;
Code Civ. Proc., § 629, subd. (a).) When the jury’s verdicts “are inconsistent and, when
considered together, the intent of the jury is not ascertainable, there is no verdict upon
which the court [can] entertain[] [a] motion for judgment notwithstanding the verdict.”
(Mish, at p. 776.) In such a scenario, the remedy “is not to grant judgment as a matter of
law in favor of one of the parties, but rather, to order a new trial.” (Stillwell v. The
Salvation Army (2008) 167 Cal.App.4th 360, 375-376.)
Here, the trial court’s denial of Fischler’s JNOV motion was based on a
finding that no verdict had been rendered due to irreconcilable conflicts in the jury’s
verdict. The court found the jury’s finding that Fischler interfered with the 2012
agreement was inconsistent with its finding that Fischler and Creative did not defraud
Truyou. Further, although the jury found that Creative did not breach the 2015
agreement, their award of compensatory damages against Fischler “consisted entirely of
unpaid commissions owed under the [2015 agreement].” The court concluded “[t]he
finding that Fischler interfered with the [2012 agreement] cannot be reconciled with the
Jury’s finding that Fischler intended to abide by the promises made in the [2015
4
agreement], including the promise to act in good faith. Similarly, the jury’s finding that
Fischler is liable for unpaid commissions under the [2015 agreement] and the finding that
[Creative] did not breach the [2015 agreement] are also inconsistent.”
Fischler’s argument relies on the existence of a verdict. In other words, we
can only consider his argument if the trial court erred in finding that no verdict had been
rendered. (Stillwell v. The Salvation Army, supra, 167 Cal.App.4th at pp. 375-377; Mish
v. Brockus, supra, 97 Cal.App.2d at p. 776.) But Fischler does not contest this finding,
and we will not make arguments or search the record for errors on his behalf. (Maral v.
City of Live Oak (2013) 221 Cal.App.4th 975, 984-985; Del Real v. City of Riverside
(2002) 95 Cal.App.4th 761, 768.) Since Fischler has not met his burden of showing that
the court erred in finding that no verdict was rendered, we affirm the order. (Tanguilig v.
Valdez (2019) 36 Cal.App.5th 514, 520 [the court’s ruling is presumed correct, and the
appellant has the burden of showing error].)
III
DISPOSITION
The trial court’s order is affirmed. Truyou is entitled to its costs on appeal.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
5