Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC372485Mark V. Mooney and William A. MacLaughlin, Judges. Affirmed.
Quintana Law Group, Andres F. Quintana and John M. Houkom for Defendant and Appellant.
Law Offices of Paul S. Berra and Paul S. Berra for Plaintiff and Respondent.
ZELON, J.
This appeal arises from a breach of contract action brought by respondent Chris Kantrowitz (“Kantrowitz”) against his former employer, appellant ODVD LLC (“ODVD”). Kantrowitz alleged that ODVD breached an oral contract to pay him a bonus of $100,000 in exchange for Kantrowitz continuing his employment with the company through the completion of certain work. Following a trial, the jury found in favor of Kantrowitz. ODVD now appeals, asserting that the trial court erred in denying its motion for summary judgment and in denying its subsequent motions for nonsuit and directed verdict. ODVD argues that each motion should have been granted because the evidence established that the terms of the alleged oral contract were not sufficiently definite to be enforceable and that the parties did not mutually assent to any binding agreement. We conclude that there was no error in the trial court’s denial of ODVD’s motions, and accordingly, affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Kantrowitz’s Employment With ODVD
ODVD is a small private company owned solely by Norman Beil (“Beil”). In Fall 2003, ODVD commenced the development of a series of Digital Video Disk (DVD) based trivia games known as “Shout.” ODVD later entered into a publishing agreement with Hasbro which gave Hasbro the exclusive right to publish the “Shout” games. Kantrowitz joined ODVD in late 2003. He and Beil had a long-term friendship and had worked together at another company before Beil formed ODVD. Kantrowitz initially was hired as a consultant and became a full-time employee of the company in early 2004. His primary job duties at ODVD were to manage the production of the “Shout” games and to oversee the business operations of the company.
Before Kantrowitz began working at ODVD, he and Beil had discussions about Kantrowitz’s compensation. They contemplated that ODVD would pay Kantrowitz a base salary, plus additional compensation equal to 10 percent of the company’s net profits. Beil referred to this type of profit sharing plan as “contingent compensation.” In November 2003, Beil sent Kantrowitz an email setting forth the terms of a proposed compensation package. Under Beil’s proposal, Kantrowitz would receive a monthly salary of $10,000 and contingent compensation starting at two percent of ODVD’s net profits and increasing incrementally to 10 percent during his first year of employment. Kantrowitz did not accept the November 2003 offer because he disagreed with Beil’s proposed formula for calculating net profits. Although he rejected the offer, Kantrowitz nevertheless started working at ODVD and received a salary for his services.
In January 2005, in response to Kantrowitz’s request for an employment agreement, Beil sent Kantrowitz another email proposing a compensation plan. Under Beil’s modified proposal, Kantrowitz would receive an annual base salary of $120,000, plus contingent compensation equal to 10 percent of ODVD’s net profits. Kantrowitz again had concerns about Beil’s method of calculating net profits, including the extent to which prior losses would be carried forward and Beil’s salary would be included as a business expense. Kantrowitz rejected the January 2005 offer, but continued working for ODVD at an annual salary of $120,000. In May 2005, Beil sent Kantrowitz an email advising him that, based on ODVD’s profits, Kantrowitz’s contingent compensation had “kicked in” provided that he complete certain projects and sign a contract. Kantrowitz did not, however, enter into a written contract with ODVD at any time during his employment.
II. The Alleged Oral Agreement
In 2005, Kantrowitz decided to leave ODVD and start his own company. Kantrowitz was frustrated that ODVD’s publishing agreement with Hasbro did not allow it the freedom to develop and distribute new games. He contemplated forming his own DVD game publishing company to compete with Hasbro and hiring ODVD to assist in the development of new products. Kantrowitz had several discussions with Beil about his plans for a new company and Beil was enthusiastic about the possibility of expanding ODVD’s business.
According to Kantrowitz, in September 2005, he and Beil met in Beil’s office to discuss Kantrowitz’s transition from ODVD to the new business. Alex Rose (“Rose”), a production assistant at ODVD, was also present. During the meeting, Beil told Kantrowitz that ODVD would pay him a bonus of $100,000 if Kantrowitz stayed at ODVD through the delivery of the final volumes of the “Shout” games to Hasbro. They discussed that it would take approximately three months to deliver those games. Beil indicated that this offer was favorable to Kantrowitz because if ODVD paid Kantrowitz in the form of contingent compensation, he would not receive anything. Kantrowitz orally accepted Beil’s offer during the meeting. At the conclusion of the meeting, Beil stated that he would send Kantrowitz an email confirming their agreement.
Kantrowitz and Beil later exchanged a series of emails about the bonus, but none was the confirming email that Beil had promised to send. In a September 26, 2005 email to Beil, Kantrowitz asked him if he was “going to honor [his] offer.” In response, Beil stated that he was “planning on doing more than this... as this original deal allows me to apply all compensation paid to you against your profit participation... [which] would not give you much contingent compensation.” In a November 9, 2005 email to Kantrowitz, Beil wrote that he “had a chance to think more about the details of the basic structure [he] discussed with [Kantrowitz] awhile ago.” Beil proceeded to outline a bonus proposal under which ODVD would pay Kantrowitz a “bonus equal to 10 percent of [the] 2006 profits with a floor of $50,000 and ceiling of $150,000,” and in exchange, Kantrowitz would sign a non-competition agreement, make himself available to provide information about his work at ODVD, and agree to a decrease in the bonus if certain marketing opportunities failed to materialize. Kantrowitz was upset by the email because he believed that Beil was trying to change the terms of their oral agreement and make the bonus contingent upon matters that they never discussed. Kantrowitz did not accept Beil’s written proposal.
Kantrowitz also exchanged emails with Rose about his recollection of the September 2005 meeting with Beil. In a November 17, 2005 email, Kantrowitz asked Rose to confirm that Beil had stated in that meeting that Kantrowitz’s bonus “would be $100k at a minimum and probably much more.” In response, Rose wrote that he did not recall Beil’s exact words, but that Beil did say that “he was thinking around $100k” and that a bonus based on ODVD’s profits “would give [Kantrowitz] nothing.”
Following the September 2005 meeting with Beil, Kantrowitz completed his work on the final volumes of the “Shout” games. Those games were physically delivered to Hasbro on October 27, 2005, while Kantrowitz was still working at ODVD. Kantrowitz officially ceased his employment with the company on November 2, 2005. After Hasbro received the “Shout” games, it followed its customary practice of testing the games internally for compatibility with different DVD players, and then providing ODVD with a report describing any problems that it found during testing. ODVD was able to address all of the reported problems and updated versions of the “Shout” games were ready for replication in January 2006. ODVD never paid Kantrowitz any bonus.
III. The Breach Of Contract Action
On June 11, 2007, Kantrowitz brought a civil action against ODVD for breach of an oral contract. In his complaint, Kantrowitz alleged that ODVD had promised to pay him a bonus of $100,000 if he agreed to continue working at the company for “an additional three months.” Kantrowitz further alleged that Beil made this offer to induce Kantrowitz to oversee the completion of certain “Shout” games and to cover bonuses for his past performance which Beil repeatedly had promised to pay Kantrowitz, but never did. Kantrowitz sought compensatory damages in the amount of $100,000.
On April 18, 2008, ODVD filed a motion for summary judgment. Among other arguments, ODVD asserted that, as a matter of law, Kantrowitz could not establish that the terms of the alleged oral contract were sufficiently definite to be enforceable, or that the parties had mutually assented to the material terms of the purported agreement. On July 2, 2008, the trial court denied the summary judgment motion on the grounds that the existence of an oral contract between the parties was a disputed factual issue that precluded summary judgment. As the trial court explained to ODVD’s counsel:
“[The] plaintiff says... we had this oral agreement where [he] agreed to stay on for a bonus of at least $100,000 until these products were furnished. I know there is a lot of dispute as to whether that was ever said by your client, and you’ve got some decent evidence that [it] may not have occurred at all. They’re saying it did occur. Doesn’t that create a triable issue of fact that I can’t rule on in terms of summary judgment?”
On August 20, 2008, the matter proceeded to a jury trial on the merits. At the close of Kantrowitz’s evidence, ODVD made a motion for nonsuit and directed verdict based on the same legal arguments that it had raised in its summary judgment motion. ODVD specifically argued that the terms of the alleged oral contract were not sufficiently definite or mutually agreed upon by the parties because Kantrowitz had given conflicting testimony at trial and during discovery as to what those contract terms were. The trial court denied ODVD’s motions. Following the trial, the jury reached a verdict in favor of Kantrowitz and awarded him compensatory damages in the amount of $100,000. On November 12, 2008, ODVD filed a timely notice of appeal.
DISCUSSION
I. Motion For Summary Judgment
A. Standard Of Review
ODVD first contends that the trial court erred in denying its motion for summary judgment. “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action....” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, at p. 850.) The party opposing summary judgment “may not rely upon the mere allegations or denials of its pleadings,” but rather “shall set forth the specific facts showing that a triable issue of material fact exists....” (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists where “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.)
We review the trial court’s ruling on a summary judgment motion de novo and independently examine the record to determine whether there is a triable issue of material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 860.) “‘“We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained.”’” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) In so doing, we strictly construe the moving party’s evidence and liberally construe the opposing party’s, “accept[ing] as undisputed only those portions of the moving party’s evidence that are uncontradicted.” (Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376, 382.) Summary judgment is proper where it is shown that no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
B. The Trial Court Properly Denied Summary Judgment
To state a cause of action for breach of contract, a plaintiff must plead and prove (1) the existence of a contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damage. (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239; Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Where the material facts are undisputed, the existence of a contract is a question of law for the court. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141; Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, 407.) On the other hand, “[w]here the existence of a contract is at issue and the evidence is conflicting or admits of more than one inference, it is for the trier of fact to determine whether the contract actually existed.” (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208.)
In this case, we conclude that the trial court did not err in denying ODVD’s motion for summary judgment because there was a triable issue of material fact as to whether the alleged oral contract existed. While Beil denied entering into any bonus agreement with Kantrowitz on behalf of ODVD, Kantrowitz submitted evidence that Beil orally had agreed that ODVD would pay Kantrowitz a bonus of $100,000 in exchange for Kantrowitz continuing his employment with the company through the delivery of certain games. The existence of an oral agreement between the parties was therefore a disputed factual issue which precluded summary judgment in favor of ODVD. None of the arguments raised by ODVD with respect to its summary judgment motion have merit.
1.Definite Terms
ODVD claims that it was entitled to summary judgment because Kantrowitz’s declaration in opposition to the summary judgment motion impermissibly contradicted his prior discovery admissions about the alleged oral agreement. According to ODVD, these inconsistencies in Kantrowitz’s testimony showed that the terms of the alleged contract were not sufficiently definite to be enforceable because Kantrowitz himself was uncertain about the exact terms of the agreement. We disagree.
“‘Under California law, a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties’ obligations and to determine whether those obligations have been performed or breached.’ (Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623.) ‘To be enforceable, a promise must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.’ (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770; see also Robinson & Wilson, Inc. v. Stone, supra, 35 Cal.App.3d at p. 407.) ‘Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.’ (Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481; see also Civ. Code, § 1598; Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 770.)” (Bustamante v. Intuit, Inc., supra, 141 Cal.App.4th at p. 209.) However, “‘[t]he law does not favor but leans against the destruction of contracts because of uncertainty; and it will, if feasible, so construe agreements as to carry into effect the reasonable intentions of the parties if that can be ascertained.’ [Citations.]” (Cal. Lettuce Growers v. Union Sugar Co., supra, at p. 481.)
One of the alleged inconsistencies identified by ODVD concerned how long Kantrowitz was required to remain at the company to receive the $100,000 bonus. In both his civil complaint and his interrogatory responses, Kantrowitz stated that Beil promised to pay him the bonus if he continued working at ODVD for an additional three months. On the other hand, in a declaration submitted with his summary judgment opposition, Kantrowitz claimed that he had to stay at the company until the delivery of certain games to Hasbro. ODVD reasons that, based on Kantrowitz’s conflicting statements about how long he had to remain employed, it was entirely unclear what his contractual obligations were. However, Kantrowitz explained in his declaration that the three month period was the approximate amount of time that Beil anticipated it would take to deliver the games, and that he and Beil discussed this timing during their meeting about the bonus. Contrary to ODVD’s assertion, Kantrowitz’s declaration was also consistent with his deposition testimony that he had to remain at the company through the delivery of the games to receive the bonus. Rather than contradict his discovery responses, the declaration simply explained how Kantrowitz’s prior admissions supported his allegation that he would be paid a bonus if he stayed until the games were delivered. (See, e.g., Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1524-1525 [trial court may disregard declaration that contradicts discovery responses but may not ignore credible evidence that explains a party’s answers]; Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482 [summary judgment should not be based on fragmentary concessions which are contradicted or explained by other credible evidence].)
Another purported inconsistency alleged by ODVD pertained to the purpose of the bonus. At his deposition, Kantrowitz initially testified that the bonus was not contingent upon his staying at the company for any period of time. Rather, he stated that, at the September 2005 meeting, Beil presented the bonus as money that Kantrowitz already had earned based on his past performance, and asked Kantrowitz to do him a favor by finishing the last few games before leaving. However, following a break in the deposition, Kantrowitz sought to clarify his testimony on the record. Kantrowitz testified that it was his understanding that he did need to stay at ODVD through the delivery of the games to get the bonus, and explained that, prior to the September 2005 meeting, he believed that he was owed a bonus of some sort for his past performance, but that Beil had not agreed to a specific dollar amount until that meeting. When Beil finally offered a bonus of $100,000, Kantrowitz believed that the offer was fairly consistent with the amount that he was owed, so he agreed to stay at ODVD through the delivery of the remaining games to receive that bonus. Although it is true that Kantrowitz revised his initial testimony on this issue during the deposition, that change does not demonstrate that the terms of the alleged contract were uncertain. Once Kantrowitz went back on the record to clarify his testimony, he made clear that a $100,000 bonus was the amount that he believed he already was owed, but to receive that amount, he had to continue working at ODVD through the delivery of the remaining games.
ODVD argues that there was also uncertainty as to whether “delivery” of the games meant actual physical delivery of the games to Hasbro or approval of the games by Hasbro after its internal testing. Kantrowitz, however, was clear in his deposition testimony that, under the terms of the oral agreement, “delivery” meant ODVD’s timely physical delivery of the games, and not Hasbro’s approval of the games. As Kantrowitz testified, “the delivery of the item was successful delivery to Hasbro, not them approving it, but that we deliver our product to them on time.” Beil had a contrary view of the term “delivery,” and asserted at his deposition that the games were not actually delivered until they were ready to be replicated in January 2006, which was two months after Kantrowitz left ODVD. Beil’s testimony thus demonstrated that there was a disputed factual issue about whether Kantrowitz performed under the alleged agreement by staying at ODVD only through the physical delivery of the games. ODVD’s conflicting evidence did not, however, establish that the terms of the alleged oral contract, as specifically set forth by Kantrowitz in discovery, were too indefinite to be enforceable.
2. Mutual Assent
In a related argument, ODVD asserts that summary judgment should have been granted because the undisputed facts demonstrated that the parties did not mutually assent to any oral agreement. According to ODVD, there was no meeting of the minds about the material terms of the alleged contract because Kantrowitz did not have a clear understanding of those terms in his own mind, and because Beil affirmatively denied that he offered Kantrowitz a $100,000 bonus. ODVD’s argument about the lack of mutual assent does not withstand scrutiny.
“An essential element of any contract is ‘consent.’ [Citations.]” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.) The consent must be mutual which means “[t]he parties’ outward manifestations must show that the parties all agreed ‘upon the same thing in the same sense.’ [Citation.]” (Ibid.) “If there is no evidence establishing a manifestation of assent to the ‘same thing’ by both parties, then there is no mutual consent to contract and no contract formation. [Citations.]” (Ibid; see also Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 358 [“there is no contract until there has been a meeting of the minds on all material points”].) “Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings. [Citation.]” (Alexander v. Codemasters Group Limited, supra, 104 Cal.App.4th at p. 141.) In general, the existence of “[m]utual assent is a question of fact. [Citation.]” (Ibid.)
ODVD contends that there was no mutual assent to a binding agreement because Kantrowitz was unable to clearly articulate the terms of the alleged oral contract despite having numerous opportunities to do so in discovery. However, when read as a whole, Kantrowitz’s discovery responses set forth his understanding that the agreement was for a bonus of $100,000 if he stayed at ODVD through the delivery of the final “Shout” games to Hasbro. As discussed, Kantrowitz’s declaration in opposition to the summary judgment motion did not contradict his prior admissions, but simply explained the basis for his belief that he had to remain employed through the delivery of the final games to receive the bonus and that it would take approximately three months to get those games ready for delivery. Moreover, in both his declaration and his deposition testimony, Kantrowitz was unequivocal that Beil expressly offered him a bonus of $100,000 during their September 2005 meeting and that Kantrowitz orally accepted Beil’s offer at that meeting. Because Kantrowitz’s evidence supported his assertion that there was a meeting of the minds on the terms of the alleged oral contract, it was sufficient to create a triable issue on the element of mutual assent.
For example, the transcript of Kantrowitz’s deposition reflects the following exchange:
ODVD relies on the deposition testimony of Beil and Rose to argue that there was no objective manifestation of assent on the part of ODVD to pay Kantrowitz any specific amount in bonus. At their respective depositions, Beil denied reaching any type of agreement with Kantrowitz for a bonus of $100,000, and Rose denied being present at any meeting where Beil promised to pay Kantrowitz a $100,000 bonus. Beil also testified that any bonuses paid by ODVD were awarded in his sole discretion. However, Kantrowitz’s deposition testimony about the bonus directly conflicted with that of Beil and Rose. At his deposition, Kantrowitz did acknowledge that, before the September 2005 meeting, the amount of bonus that he was to be paid by ODVD was subject to Beil’s “whim” because they had not agreed on a fixed dollar amount in any of their prior discussions. But Kantrowitz was clear in his testimony that, at the September 2005 meeting, Beil made a specific offer for a bonus of $100,000, which Kantrowitz accepted. Therefore, rather than support ODVD’s argument about the lack of mutual assent, the conflict in the evidence simply demonstrated that there was a disputed factual issue as to the existence of the alleged oral contract.
ODVD further claims that the parties did not mutually assent to any oral contract because the email correspondence exchanged after the September 2005 meeting reflected a pattern of ongoing negotiation between Kantrowitz and Beil without a final agreement. On their face, the emails exchanged between Kantrowitz, Beil, and Rose do not directly address whether the alleged agreement actually existed. None of the emails conclusively demonstrates that ODVD entered into a binding contract to pay Kantrowitz a $100,000 bonus, nor do they negate the existence of such an agreement. Instead, the emails could be read as supporting competing inferences. However, in reviewing the trial court’s summary judgment ruling, we must view the evidence in the light most favorable to Kantrowitz, “resolving any evidentiary doubts or ambiguities in [his] favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Based on the emails, a reasonable inference could be drawn that Kantrowitz believed there was an oral agreement for a bonus of at least $100,000, and that Beil was later attempting the change the terms of that agreement by making the bonus contingent upon other additional factors. Although a contrary inference could be drawn from the evidence, the parties’ email correspondence does not establish, as a matter of law, the absence of mutual assent.
In sum, the evidence offered by Kantrowitz in opposition to the summary judgment motion supported his claim that the parties had an enforceable oral contract under which ODVD would pay Kantrowitz a $100,000 bonus if Kantrowitz continued working at the company through the delivery of certain games. The contrary evidence submitted by ODVD in support of its motion showed that there was a triable issue as to the existence of the alleged agreement, but it did not entitle ODVD to judgment as a matter of law. Accordingly, ODVD’s motion for summary judgment was properly denied.
In light of our conclusion that the trial court did not err in denying the summary judgment motion, we need not address Kantrowitz’s argument that ODVD had to prove that it was prejudiced at trial as a result of the asserted error. (See, e.g., Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 342 [“an order denying a motion for summary judgment... does not constitute prejudicial error if the same question was subsequently decided adversely to the moving party after a trial on the merits”].)
II. Motion For Nonsuit And Directed Verdict
A. Standard Of Review
ODVD argues that the trial court also erred in denying its motions for nonsuit and directed verdict. “‘A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his [or her] favor. [Citation.] “In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give ‘to the plaintiff[’s] evidence all the value to which it is legally entitled,... indulging every legitimate inference which may be drawn from the evidence in plaintiff’[s] favor.’” [Citation.]’” (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 262.)
The trial court is governed by the same standard of review in ruling on a motion for directed verdict. (Adams v. City of Fremont, supra, 68 Cal.App.4th at p. 263.) “A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party. [Citations.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630.) If the opposing party produces sufficient evidence to support a verdict in its favor, the motion for directed verdict must be denied. (Id. at p. 630.)
“In reviewing the denial of a motion for nonsuit or directed verdict, appellate courts, like trial courts, must evaluate the evidence in the light most favorable to the plaintiff. [Citation.] Reversal of the denial of a motion for nonsuit or directed verdict is only proper when no substantial evidence exists tending to prove each element of the plaintiff’s case.” (Adams v. City of Fremont, supra, 68 Cal.App.4th at p. 263.)
B. The Trial Court Properly Denied A Nonsuit And Directed Verdict
ODVD’s arguments regarding the denial of its motions for nonsuit and directed verdict are similar to those raised with respect to the denial of its motion for summary judgment. On appeal, ODVD contends that the trial court should have granted a nonsuit or directed verdict because the evidence presented at trial established that the terms of the alleged oral contract were too indefinite to be enforceable and were not mutually agreed upon by the parties. We conclude, however, that there was substantial evidence to support a verdict in Kantrowitz’s favor.
At trial, Kantrowitz testified that, in September 2005, he and Beil entered into an oral agreement under which ODVD would pay Kantrowitz a $100,000 bonus if Kantrowitz stayed at the company through the delivery of the final volumes of the “Shout” games to Hasbro. Kantrowitz further testified that, following the oral agreement, ODVD completed the production of the final games and then physically delivered the games to Hasbro in October 2005, while Kantrowitz was still employed. Kantrowitz ceased his employment with the company in November 2005, but was never paid any bonus by ODVD. Kantrowitz’s trial testimony thus was evidence that there was an enforceable oral agreement between the parties, that Kantrowitz performed his obligations under the agreement, that ODVD failed to pay him a bonus in breach of the agreement, and that Kantrowitz suffered $100,000 in damages as a result of the breach.
It is true, as ODVD asserts, that the company produced conflicting evidence at trial about whether the parties ever entered into any oral contract. Beil consistently testified that he never agreed to pay Kantrowitz a bonus of $100,000. Beil further testified that, while he and Kantrowitz repeatedly attempted to negotiate a contingent compensation plan based on a percentage of ODVD’s net profits, they ultimately were unable to agree upon a final deal because Kantrowitz rejected Beil’s various proposals. However, in ruling on a motion for nonsuit or directed verdict, it is not the role of the trial court to weigh the evidence or to evaluate the credibility of the witnesses. Rather, the trial court was required to accept as true the evidence favorable to Kantrowitz and to disregard any conflicting evidence. (Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 629-630; Adams v. City of Fremont, supra, 68 Cal.App.4th at pp. 262-263.) Because Kantrowitz’s testimony was evidence that ODVD breached an enforceable oral agreement to pay him a $100,000 bonus, the trial court properly denied the motions for nonsuit and directed verdict.
ODVD argues that, as a matter of law, the alleged oral contract lacked the essential elements of definite terms and mutual assent because Kantrowitz’s trial testimony conflicted with his discovery admissions about how long he had to remain at the company to receive the bonus, whether the bonus was consideration for past performance or continued employment, and what was meant by delivery of the games to Hasbro. Yet ODVD had an opportunity to impeach Kantrowitz at trial with his discovery responses, and it was up to the jury to determine whether Kantrowitz’s trial testimony actually conflicted with his prior admissions. At trial, Kantrowitz explained that the reference to a three month period in his civil complaint and interrogatory responses was to the approximate amount of time that he and Beil anticipated it would take to get the games ready for delivery to Hasbro. He also stated that it was his understanding that the $100,000 payment would cover both the bonus that he felt he was owed for his past performance and the bonus that he was offered as an inducement to stay through the delivery of the final games. Kantrowitz further testified that he fulfilled his obligations under the oral contract when ODVD physically delivered the final games to Hasbro and that he was never informed of any compatibility issues with those games. For purposes of evaluating ODVD’s motions for nonsuit and directed verdict, the purported inconsistencies between Kantrowitz’s pretrial and trial testimony did not establish that, as a matter of law, the alleged agreement was unenforceable. It was the province of the jury to decide whether Kantrowitz’s proffered reasons for his prior discovery responses were credible, and to determine what weight, if any, to accord to his testimony at trial.
ODVD also claims that the email correspondence offered as evidence at trial demonstrated that there was no objective manifestation by either Beil or Kantrowitz to be bound by a contract. However, as previously discussed, there were competing inferences that could be drawn from the parties’ email correspondence as to the existence of an oral agreement. At trial, Kantrowitz testified about his intent in his emails to Beil following their September 2005 meeting and about his understanding of the responses he received. Kantrowitz explained that his emails to Beil were in reference to their oral agreement for a $100,000 bonus and were essentially a request for a written confirmation of that agreement, which Beil had promised to provide but still had not sent. Kantrowitz further testified that when he received Beil’s email proposing a different type of bonus based on a percentage of net profits, he believed that Beil was trying to change the terms of their oral contract and make the bonus contingent upon matters that were never discussed. In his trial testimony, Beil had a different interpretation of the emails and explained that they were part of the parties’ ongoing negotiations about a contingent compensation plan, which Kantrowitz never accepted. But viewing the evidence in the light most favorable to Kantrowitz and drawing all legitimate inferences in his favor, the emails reasonably could support the inference that Beil orally agreed to pay Kantrowitz a $100,000 bonus and then attempted to negotiate a different deal less favorable to Kantrowitz after the fact. In sum, Kantrowitz presented sufficient evidence at trial to support a verdict in his favor, and therefore, the trial court did not err in denying ODVD’s motions for nonsuit and directed verdict.
DISPOSITION
The judgment is affirmed. Kantrowitz shall recover his costs on appeal.
We concur: PERLUSS, P. J. JACKSON, J.
Q. And you understood that to be some sort of offer?
A. Absolutely.
Q. From [Beil]. Did you accept that offer?
A. Absolutely.
Q. Did you communicate to [Beil] your acceptance of that offer during that meeting?
A. Absolutely.
Q. By responding with “great” or “good” or “thanks” or something like that?
A. Yes, and “I’m staying and I’ll put off starting my new business.”