Go Creative Wireless vs Roesch

202100560197CUCO: Go Creative Wireless vs Roesch 08/25/2026 in Department 40 Motion for New Trial

The following is a statement of the court’s tentative ruling. The court may adopt, modify or reject the tentative ruling after considering the parties’ oral arguments. The tentative ruling will have no legal effect unless adopted by the court.

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Defendants Charles Ellis Roesch and Robert Terpe (collectively “Defendants”) move, pursuant to Code of Civil Procedure section 629, for judgment notwithstanding the verdict (“JNOV”). Alternatively, they seek a new trial under Code of Civil Procedure section 657. Specifically, they challenge the jury’s compensatory damage awards of $250,000.00 against Mr. Roesch and $50,000.00 against Mr. Terpe in favor of Plaintiff Creative Wireless Technology Solutions, Inc. (“CWTS”). They contend these findings were made without substantial evidence and “rest entirely on speculation.” (Motion, p. 2.)

CWTS opposed the motion by filing untimely opposition papers. Defendants objected to CWTS’s late filing. For reasons discussed below, the opposition papers have not played a role in the court’s determination, and therefore Defendants’ objection is moot.

On the motion of a party, a “JNOV must be granted where, viewing the evidence in the light most favorable to the party securing the verdict, the evidence compels a verdict for the moving party as a matter of law.” (Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1194.) “ ‘The trial court may grant [JNOV] only if the verdict is not supported by substantial evidence. The court may not weigh evidence, draw inferences contrary to the verdict, or assess the credibility of witnesses. The court must deny the motion if there is any substantial evidence to support the verdict.’ ” (Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal.App.4th 206, 218, quoting Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 72–73.)

202100560197CUCO: Go Creative Wireless vs Roesch

A court may grant a new trial based on an excessive award of damages. (Code Civ. Proc., § 657.) However, “[a] new trial shall not be granted upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Ibid.)

Here, Defendants contend that the jury’s compensatory damage awards were not supported by substantial evidence. In furtherance of this contention, Defendants rely upon the declaration of their trial counsel, Alejandro H. Herrera, to show what the trial evidence was. Much of Mr. Herrera’s declaration is devoted to summarizing the exhibits that were admitted into evidence at the trial. But, as in most trials, the vast majority of the evidence presented to the jury came in the form of witness testimony: 15 witnesses testified over eight court days.

Counsel for CWTS, Joanne Knauss, offered her own declaration as to testimony at trial. Defendants objected to Ms. Knauss’s declaration on the ground that counsel’s characterization of the trial testimony is not evidence of that testimony. However, an attentive reader will note that Defendants’ objection applies with equal force to Mr. Herrera’s declaration that also attempts to summarize the trial testimony.

On a motion for new trial based on excessive damages, the court’s determination must be made on the “minutes of the court.” (Code Civ. Proc., sec. 658.) “ ‘[T]he “minutes of the court” include the records of the proceedings entered by the judge or courtroom clerk, showing what action was taken and the date it was taken [citation] and may also include depositions and exhibits admitted into evidence and the trial transcript. [Citation.]’ ” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1192.)

Typically and appropriately, on a new trial motion, the content of what the witnesses testified to is proved with trial transcript pages. But here, neither side’s papers include transcript pages because none exists. The parties declined to provide a court reporter for the trial. This was despite the court’s admonishment to counsel of the value of a verbatim record. (See Minute Order, 1/9/26.) The concerns expressed by the court then are now realized.

Defendants have the burden on a motion for JNOV or new trial based on a claim of excessive damages to demonstrate that the jury’s findings of damages are not supported by substantial evidence. This burden cannot be carried in a vacuum, and as Defendants correctly argue, the declarations of counsel may not be considered to establish what the trial testimony was. (E.g., see Phipps v. Copeland Corp. LLC (2021) 64 Cal.App.5th 319, 338–340.)

Even if the court were to consider Mr. Herrera’s declaration as evidence of the witness’s testimony, the motion would still fail. The relevant portion of counsel’s declaration is limited to two brief paragraphs. This may surprise the reader inasmuch as the trial involved multiple days of testimony from a number of witnesses. Mr. Herrera condensed this testimony into a few short observations. According to Mr. Herrera, “Not a single customer [of GCWT] testified that he or she stopped using Plaintiffs’ services due to Defendants’ conduct during the relevant period.” (Herrera Decl., para. 6.) He added, “No expert witness on damages was designated

202100560197CUCO: Go Creative Wireless vs Roesch

by or testified for Plaintiffs at trial, and no witness offered any calculation tying any dollar amount to any act of any Defendant.” (Id., para. 7.)

On a motion for JNOV or new trial based on sufficiency of the evidence, the court must consider “the entire record.” (See Code Civ. Proc., section 657.) Thus, on such a motion the moving party may not pick and choose only the evidence supporting its position. To succeed, the moving party must address all of the evidence and in doing so demonstrate that the record as a whole is devoid of substantial evidence supporting the jury’s finding. (See Johnson v. Monsanto Co. (2020) 52 Cal.App.5th 434, 455.)

Here, Defendants’ conclusory, incomplete, and selective summary of the trial testimony falls well short of meeting this standard. Defendants ignore the fact that Erica Shatee provided extensive testimony as to the economic damages sustained by CWTS. The court recalls that Ms. Shatee testified that CWTS expended over $100,000 to replace stolen or disabled hardware. Additionally, to the court’s recollection she testified that in 2022, 197 customers canceled their contract which resulted in a past and future loss of revenue between two and eight million dollars.

A jury could reasonably infer that these losses were incurred as a result of Defendants’ actions. Ms. Shatee’s testimony is substantial evidence that supports the verdicts.

The motion for JNOV is denied.

The motion for new trial is denied.

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