Filed 7/17/13 Jasmine Networds v. Marvell Semiconductor CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT
JASMINE NETWORKS, INC., Plaintiff and Appellant,

v. MARVELL SEMICONDUCTOR, INC., Defendant and Respondent. H036684 (Santa Clara County Super. Ct. No. CV801411)

Appellant Jasmine Networks, Inc. (Jasmi ne) appeals from a judgment entered after a jury verdict in favor of respondent Marv ell Semiconductor, Inc. (Marvell). Jasmine sued Marvell on three primary claims: misa ppropriation of trade secrets, breach of contract and the implied covenant of good faith and fair dealing, and intentional
interference with contractual relations. After a trial, a jury returned a verdict in favor of
Marvell on all of Jasmine’s causes of action. On appeal, Jasmine argues that the trial court erred in denying its motion for a judg ment notwithstanding the verdict (JNOV)
because Marvell utilized Jasmine’s trade secrets as a matter of law when it discussed potential liability for using Jasm ine’s trade secrets in a reco rded voicemail. Second, Jasmine argues that the jury’s verdict shou ld be reversed because the trial court incorrectly failed to give preclusive effect to Marvell’s voluntary dismissal of its crosscomplaint with prejudice.
We find that the trial court did not err in denying Jasmine’s motion for a new trial as the motion was primarily base d on a legal theory not tried before the jury and premised2 upon disputed facts. Furthermore, we find that Jasmine’s theory that Marvell’s voicemail
constituted “use” of a trade secret is without merit. Additionally, we determine that
Marvell’s evidence of Jasmin e’s alleged wrongdoing in th e development of JSLIP was
not barred under the doctrine of res judicata, and that the trial court did not err in declining to grant Jasmine’s pretrial mo tion in limine to exclude the evidence. Accordingly, we affirm the judgment.
F ACTUAL B ACKGROUND Jasmine and Marvell are both technology companies with a fo cus on developing semiconductor chips. Jasmine represented th at it had developed a packet switch fabric. A packet switch fabric is a code used in an Internet router that directs the flow of information packets. There ar e two components to a packet switch fabric, a switch and a scheduler. A switch directs incoming informa tion to an outgoing link. A scheduler determines what sequence each packet of information will be delivered so that the information packets do not “collide,” rendering the information corrupt. A scheduler is vitally important to a router, as the effici ency of the scheduler ultimately impacts the router speed. Jasmine’s scheduler was named JSLIP. 1 The Development of Jasmine ’ s JSLIP Scheduler Prior to the development of JSLIP, D r. Nicholas McKeown developed a scheduler called ISLIP, which was patented by the Rege nts of the University of California as McKeown developed the code as a Ph.D. st udent at the University of California, Berkeley. Also prior to the development of JSLIP, McKeown developed a scheduler called ESLIP while working at Cisco, anot her technology company, which Cisco then

1 The record contains various iterations of the term “JSLIP.” Some parts of the record indicate that the code is spelled J-Slip , and others indicate that it is JSLIP. For clarity, we will hereafter refe r to the code as JSLIP.3 patented. 2 Cisco obtained a license from the Rege nts of the University of California for ISLIP, because though the co mpany owned a patent on ESLIP, using ESLIP would invoke ISLIP technology. McKeown is no w a professor at Stanford University. Jasmine engineer Patrick Murphy and a frien d, Doug Chang, a graduate student at Stanford University, discu ssed methods to obtain the ESLIP and ISLIP codes when Murphy was developing JSLIP. After so me time, Chang and Murphy decided that Murphy could download the code off of a Stanford University computer, so Murphy visited the Stanford campus one weekend, accessed a computer, and downloaded the ISLIP code. Murphy may have also received some sort of information about McKeown’s other scheduler, ESLIP. 3 McKeown’s testimony at trial confirmed that there were doc uments about ISLIP that were freely available on the Intern et, including code. However, as McKeown described, the free availability of the code on the Internet was “different from giving someone permission to use it.” McKeown furt her elaborated that “[i]t’s well-known to any professional engineer that you would need to go and ge t a license for any patented material before you would use it.” Jasmine’s JSLIP code essentially inco rporated ESLIP and ISLIP, which was altered by Jasmine engineers to omit any reference to McKeown’s programs. Murphy
testified at trial that he sent e-mails to ce rtain Jasmine developers instructing them to
delete references to ISLIP and ESLIP. In one e-mail, Murphy told another Jasmine

2 Like JSLIP, there are various spellings of ISLIP and ESLIP in the record. For clarity, we will hereafter refer to the code as IS LIP and ESLIP. 3 During trial, Murphy testified that he only downlo aded ISLIP code, which is publicly available on the Internet. Nevert heless, Murphy sent an e-mail to Jasmine executives after his trip to St anford, in which he stated that he had made changes to ESLIP. When asked about if he also took ESLIP code during the Stanford trip, Murphy answered that he only had IS LIP, which was licensable, a nd that he never possessed the ESLIP code. Murphy stated th at ESLIP was not available on the Stanford server, and that he did not know why he wrot e the e-mail referencing ESLIP.4 employee to go through the code and ch ange the module names from what McKeown used in his original codes to something else. Murphy wrote, “If we don’t do this it will be very easy for anyone to see that all we’v e done is copy McKeown’s papers verbatim. [¶] Sorry for all the recommendations, but th is document will be see[n] by [whomever] we partner with, and we need to make su re it’s different to some degree.” The Deal Between Jasmine and Marvell In March 2001, Jasmine approached Marvell about a possible business deal, as Marvell was interested in acquiring some of Jasmine’s intellectual property and assets, including its packet switch fabric techno logy. The parties signed a nondisclosure agreement on April 12, 2001. The nondisclo sure agreement included a clause that Marvell would not “use any Confidential Info rmation for any purpose except to evaluate and engage in discussions concerning a pote ntial business relationship between [Jasmine] and Marvell.” During discussi ons regarding Jasmine’s packet switch fabric technology, Marvell questioned Jasmine about the similarity of their technology with ESLIP. In one exchange, Marvell asked: “How different is your multicast implementation [from ESLIP]?” Jasmine answered: “We don’t know since [ESLIP] is not very well documented. Only two paragraphs exist th at explain how it’s supposed to work.” Sometime in May 2001, Ma rvell’s focus shifted from developing a business relationship with Jasmine to acquiring the en tirety of Jasmine’s application-specific integrated circuit (ASIC) division including the related intellectual property and the associated Jasmine employees. The Jasmin e technology specifically at interest to Marvell included the packet switch fabric tech nology, including JSLIP, as well as a chip called a SONET (synchronize d optical network) framer. 4

4 The SONET chip processes data, and wa s originally designed to process voice data. Jasmine’s SONET chip was different as it concentrated on taking not only voice data, but large quantities of data from over the Internet.5 Marvell made an initial offer to purchase Jasmine for $30 million in cash, with a $10 million guarantee flowing from Jasmine to Marvell for nonrecurring engineering charges, and a $10 million earn-out, with an estimated $20 milli on in stock options provided to certain Jasmine engineers. A lette r was sent to Virginia Wei, senior director of legal and business affairs at Jasmine, indi cating that this initial offer was preliminarily made without Marvell’s completion of its due diligence and was th erefore not binding.
Marvell’s letter further instructed Jasm ine not to solicit additional offers from competitors at that time. Later, Marvell lowered its bid for Jasmin e’s ASIC division to $25 million after the initial offer, and after Jasmine unsuccessfu lly attempted to market itself to other companies for a competing bid. The Voicemail Jasmine and Marvell proceed ed with negotiations regard ing Marvell’s acquisition. Marvell replaced Manuel Alba, originally in charge of the business deal, with Kaushik Banerjee, head of Marvell’s ow n ASIC division, on August 15, 2001. Alba sent Banerjee a series of e-mails that detailed the ongoing business discussions, in cluding due diligence
issues between Jasmine and Marvell. The e-mails contained the signed nondisclosure agreement between Jasmine and Marvell. N onetheless, Banerjee did not see the e-mail with the signed nondisclosure agreement, and became concerned that the two companies may have inadvertently shared trade secret s and other confidentia l information without some sort of arrangement. Banerjee met with several other Marve ll employees, including Eric Janofsky, Marvell’s patent counsel, and Matthew Gl oss, Janofsky’s supervisor and Marvell’s general counsel. All three Marvell employees , Gloss, Janofsky, and Banerjee, gathered together and Gloss called Jasmin e executive Virginia Wei. Gl oss left Wei a voicemail in
which he raised certain issues about Ma rvell and Jasmine’s business negotiations. However, Gloss did not end the call correctly when he finished le aving the voicemail6 intended for Wei, and without his knowledge the voicemail syst em continued to record a conversation between himself, Janofsky, and Banerjee that was presumably intended to be private. In the voicemail, the th ree Marvell employees discussed possible repercussions, including civil and criminal penalties, if th ey incorporated some of Jasmine’s trade secrets into their technology. No specifics of any trade se crets were discussed in the voicemail, and the voi cemail did not give a clear indica tion of what trade secrets the Marvell employees were discussing as pa rt of their hypothetical situation. The relevant part of th e voicemail is as follows: “[Gloss]: Yeah, but you kn ow the problem is so if they’re dumping it into Tigo now, that’s a problem. [5] “[Janofsky]: Well, no it . . . . “[Banerjee]: But we don’t know that for a fact. “[Janofsky]: One, at least it’s not a cr iminal problem. I, you know . . . . “[Banerjee]: Well, we don’t know that for a fact though, but we . . . . “[Janofsky]: No, if they gave it to us it is not a criminal problem. “[Gloss]: Yeah, but what did we indu ce, what did we solicit, what did we promise, what did we say . . . . “[Janofsky]: I don’t think--it doesn’t lo ok--Sehat doesn’t go to jail, obviously. “[Gloss]: Sehat doesn’t go to jail. Manuel might go to jail; Manuel gets a black
eye. [6] “[Janofsky]: I don’t . . . .

5 “Tigo” references a group of products that were being produced by Marvell Israel. 6 It is inferred from the voicemail that “Manuel” refers to Manuel Alba, the Marvell executive origina lly working on the busin ess deal to acquire Jasmine. It is also inferred that “Sehat” refers to Sehat Su tardja, CEO and cofounder of Marvell.7 “[Gloss]: Sure. Marvell VP out there promising big option gr ants in proposed pending acquisitions if technology is transfer red in advance to speed development time so time to market goal can be reache d. That’s what’s going on. “[Janofsky]: I don’t see it going to a crim inal level. I see it going to a severe civil, civil layer, but not . . . . “[Gloss]: But still hits, w ould still hit the financial. “[Banerjee]: But it would be okay if we pay them and we close the deal, right? “[Janofsky]: Once the deal closes, it’s fine , but if they realize what they’re doing they could hold out for more. Use it as leverage, use it as blackmail. “[Banerjee]: Right, but we don’t want to talk about it. “[Janofsky]: No, we don’t want to talk about it . . . . But my concern twenty minutes ago was keeping Sehat out of jail. “[Gloss]: Right. “[Janofsky]: That was my concern. “[Gloss]: Ok. “[Janofsky]: You’ve alleviated that con cern. I have other concerns, but Sehat in jail would not be a very nice thing. “[Banerjee]: But Sehat is going to jail because he got a . . . ? “[Gloss]: CEO . . . Command responsibility. “[Janofsky]: CEO. If we took that IP on the pretense of just evaluating it, and put it in our product . . . . “[Banerjee]: But we don’t know that part. “[Janofsky]: But they gave it to us, you know. We don’t know. But it sounded . .

. . “[Banerjee]: You are making a de duction that it’s gone into Tigo.8 “[Janofsky]: No, no. I am just saying if it did, from what Matt was telling me . . . we got it. You . . . . As I said, you made this story a little clearer and I don’t think it rises
to the criminal level. “[Banerjee]: Yeah I mean, all I, if you look at it you begin to say hey look it was part of technical due diligence. [¶] . . . [¶] “[Gloss]: But, you know, I’m going to sit down with Mr. Alba and talk to him about it because it was very po orly handled; there was no c oordination with us, and it was this total cowboy effort, and it has the potential to absolutely spin into something more
nefarious.” After some time, another individual ca lled Gloss on his phone, terminating the voicemail recording. The Aftermath of the Voicemail Unsurprisingly, after Wei listened to the voicemail she grew alarmed about its contents and about Marvell’s possible misuse of Jasmine’s intellectual property. On August 22, 2001, Jasmine sent a letter to George Hervey, chief financial officer of
Marvell. The letter disclosed to Marvell that Jasmine had discovered, through statements made by Marvell personnel, that Marvell had misappropriated Jasmine’s trade secrets by incorporating Jasmine’s proprietary intellect ual property into Marvell’s products. Jasmine stated that despite Marvell’s conduc t, it still wished to proceed with business negotiations and that it would like to avoi d litigation. Jasmine then proposed that Marvell pay Jasmine $20 million in cash, net of any fees, in exchange for a release from Jasmine for claims of trade secret misappropr iation, breach of contract, and any other civil claims arising from Marvell’s alleged mi sconduct. Jasmine proposed that “[t]he
transaction will be structured as an ‘as is’ asset acquisition di rectly from Jasmine.” 7 The

7 Jasmine’s proposed price was $5 million high er in cash than Marvell’s previous offer, which had only incl uded $15 million in cash.9 letter additionally specified that the offer would expire several days later, at 3:00 p.m. on August 24. Marvell responded to Jasmine’s accusati ons on August 24, 2001. In a letter,
Marvell denied Jasmine’s accusation of misappropriation by Marvell employees. Unequivocally, the letter asserted that “[Marv ell has] not and will no t incorporate any of Jasmine’s proprietary information into any of Marvell’s products w ithout an appropriate agreement between our two comp anies permitting such activity.” Marvell further denied violating the signed nondisclosure agreem ent, and offered Jasmine “immediate and
reasonable access” to Marvell’s facilities and em ployees to corroborate its assertion. Marvell rejected Jasmine’s offer, and urged Ja smine to initiate contact before August 27, 2001, if it still wished to continue discu ssions over the acquisitio n of Jasmine’s ASIC
division. Marvell further assured Jasmine that if discussions were not initiated, it would
return all of Jasmine’s conf idential information in accordance with the nondisclosure agreement. Jasmine contacted Marvell on August 28, 20 01, seeking to proceed with the deal
on the “old economic terms.” However, due to declining market conditions, Marvell concluded that it could no longer proceed w ith the acquisition of Jasmine’s ASIC group,
and ceased discussions. Marvell sent a lette r to Jasmine dated August 31, 2001, and
attached a “Certificate of Destruction and Re turn of Confidential In formation.” Marvell certified that it had, through due inquiry a nd diligence, returned all the confidential
information it held from Jasmin e within its possession as liste d on a schedule attached to
the certificate. Marvell asserted that the items listed on the schedule were all of the
confidential information receive d from Jasmine pursuant to th e nondisclosure agreement, and that it had destroyed and deleted all of the tangible confidential information from Marvell’s manual files and nonelectronic storag e, which was not otherwise returned to
Jasmine with the letter. The certificate further asserted th at Marvell had destroyed all intangible and electronic files containing the confidential informatio n received pursuant10 to the nondisclosure ag reement. Despite the representati ons in the certificate, Marvell attorney Janofsky retained some of the conf idential information with the company’s legal

team. Jasmine ’ s Bankruptcy In 2001, Jasmine discovered that seve ral of its ASIC group employees were allegedly conspiring to leave the compan y and to start their own business called “CoolComm.” In a typed business strategy, Jasmine employees, including Murphy, indicated that they would create this comp any as an exclusive consulting business for Marvell, developing ASIC chips. Based on the business plan, Marvell would pay the employees’ salaries and indemnify them against lawsuits brought by Jasmine. CoolComm never became a viable company of its own, and Jasmine employees never followed through with the business strategy. It was unclear whether or not Marvell executives possessed knowledge of this business plan, as fellow Jasmine engineer
Richard Sowell testified at trial that tho ugh Murphy presented him with the typed business plan, Sowell rejected the idea and told Murphy not to pursue it any further.
Sowell stated on the record that to his kn owledge, Murphy did no t follow through with pursuing the business plan. In mid September of 2001, Jasmine term inated the members of its ASIC group. Jasmine declared bankruptcy in 2002, and thereafter sold its remaining assets, including its technology and intellectual property, to Teradiant Networks for $300,000.
P ROCEDURAL B ACKGROUND The Complaint and Cross-complaint On September 12, 2001, Jasmine filed a complaint against Marvell and several of its former employees in its ASIC division, including JSLIP designer Patrick Murphy. The complaint alleged that Jasmine had di scovered a “conspiracy between many of its trusted employees and Marvell Semiconducto r, Inc.” to steal one of Jasmine’s trade
secrets and to undermine the multi-million dolla r sale deal. The complaint cited to the11 inadvertent voicemail left by Gloss, Janofsky, and Banerjee as evidence of Marvell’s alleged wrongdoing. Jasmine sought re lief under 11 causes of action including misappropriation of trade secrets in violati on of the Uniform Trade Secrets Act (UTSA),
Civil Code sections 3426 thr ough 3426.11, against all defe ndants, breach of fiduciary duty against Jasmine employees Richard Sowell and Murphy, breach of contract against all defendants, and breach of th e implied covenant of good fa ith and fair dealing against
all defendants. On December 28, 2001, Marv ell filed an application fo r a preliminary injunction, seeking to enjoin Jasmine fro m disclosing the contents of the recorded voicemail.
Marvell characterized the voicemail as c ontaining privileged attorney-client communications between Marvell and its attorney s. Marvell also requested that the trial court seal the privileged communications, and strike all portions of the first amended complaint referring to the privileged commu nications. The trial court granted the preliminary injunction the same day, and also granted Marvell’s motion to strike. 8 Jasmine filed a second amended complaint on January 11, 2002. Marvell answered on February 15, 2002, with a general denial. The answer also raised numerous affirmative defenses, including the de fense of unclean hands. 9

8 Jasmine appealed the trial court’s or der granting the preliminary injunction barring Jasmine from using the contents of the voicemail in its complaint. On appeal, this court reversed the trial court’s inj unction, finding that any attorney-client communication between Marvell and its attorn eys were waived, and that regardless, Jasmine had sufficiently shown a prima facie ca se of fraud that fit w ithin the crime-fraud exception of the attorney-client privilege. ( Jasmine Networks , Inc. v. Marvell Semiconductor , Inc. (2004) H023991, previously pub lished at 117 Cal.App.4th 794.) The opinion in this case was depublished af ter the California Supreme Court granted review on July 21, 2004. ( Ibid. ) The Supreme Court later dismissed review. ( Jasmine Networks , Inc. v. Marvell Semiconductor , Inc. (2008) S124914.) 9 “The [unclean hands] doctrine demands that a plaintiff act fairly in the matter for which he seeks a remedy. He must come in to court with clean hands, and keep them clean, or he will be denied relief, regard less of the merits of his claim.” ( Kendall-Jackson (continued)12 In addition to its answer, Marvell filed a cross-compla int. The cross-complaint stated causes of action for fraud, fraudulent concealment, breach of contract, breach of the implied covenant of good faith and fair de aling. With respect to the cause of action for fraud, Marvell alleged that Jasmine employees, including Murphy, falsely and fraudulently represented to Marvell that Jasmine had developed a propriety program
called JSLIP. Marvell asserted that Jasm ine did not develop JSLIP independently, and
that in fact Jasmine misa ppropriated the JSLIP program by taking information from McKeown’s patented ESLIP and ISLIP programs. Marvell further alleged that Jasmine breached its contract to Marvell by failing to abide by the terms of the nondisclosure agreement, as Jasmine refuse d to return Marvell’s conf idential information including some of Marvell’s intellectual property. Ja smine denied all of the allegations in the cross-complaint.
Prior to the commencement of the jury trial, Marvell s ought to dismiss Jasmine’s complaint on the basis that Jasm ine forfeited its standing to pursue its claims of trade secret misappropriation when it sold all rights to its trade secrets and all of its other intellectual properties when it declared bankruptcy. ( Jasmine Networks , Inc. v. Superior
Court (2009) 180 Cal.App.4th 980, 986.) The tr ial court granted Marvell’s dismissal of Jasmine’s complaint, and Jasmine appealed. ( Ibid. ) This court issued a writ of mandate directing the trial court to reverse its dismissa l and to reinstate Jasm ine’s causes of action after finding that there was no “current ownershi p” rule when it came to trade secrets. ( Id. at pp. 986, 1010-1011.)

Winery , Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 9 78.) Marvell raised the doctrine of unclean hands as an affirmative defe nse in its answer to Jasmine’s complaint. Toward the end of the jury tr ial, Marvell requested the inst ruction be given to the jury, but the trial court denied the motion and exerci sed its discretion not to have this equitable defense submitted to the jury. Accordingly, no verdict was given as to whether or not Jasmine had “unclean hands.”13 Marvell ’ s Dismissal of Cross- complaint and Jasmine ’ s Motion in Limine Marvell dismissed its cross-complaint for fraud and fraudulent concealment with prejudice on September 22, 2010. On Sept ember 27, 2010, Jasmin e filed a motion in
limine to exclude evidence of Jasmine’s alleged wrongdoing in its development of JSLIP. Jasmine argued that under the doctrine of re s judicata, once Marvell dismissed its crosscomplaint with prejudice, it was barred from litig ating any of the claims it made in its cross-complaint in the current action. This included any ar guments and evidence Marvell sought to introduce as part of its affirmativ e defenses. In its motion, Jasmine relied upon Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813 ( Torrey Pines Bank )
and our court’s decision in Walsh v. West Valley Missi on Community College Dist. (1998) 66 Cal.App.4th 1532 ( Walsh ), for the proposition that th e dismissal with prejudice
terminated all offensive clai ms and affirmative defenses against Jasmine that Marvell
advanced in its cross- complaint. Marvell opposed the motion and argued that Jasmine’s alleged fraud specifically negated several es sential elements of Jasmine’s claims, including that Jasmine owned th e trade secret, that the trade secret had economic value, and that Jasmine suffered damages as a resu lt of Marvell’s alleged misappropriation. Therefore, Marvell argued that any evid ence of fraud and fraudulent concealment supported its general denial, not its affirmative defenses. The trial court agreed with Marvell, stating that “I thin k it is [Jasmine’s] burden to show that the plaintiff owned a trade secret; two, that the trade secrets have independent economic value; that the theft or compromise of the trade secrets caused the plaintiff economic damages. [¶] All of this evidence abou t [JSLIP], [ESLIP], you know, who created it, who owns it[,] I thi nk is relevant to show ownershi p, value, damages, and so I understand plaintiff’s arguments, but I think this is a traverse , and I think it goes to the general denial.” The trial court thereafter distinguished the case from Torrey Pines Bank , and denied Jasmine’s motion in limine.14 The Trial and Verdict Trial lasted approximately five weeks, from September 30, 2010, to November 9, 2010, when the jury began its deliberations . At trial, Jasmine argued that Marvell wrongfully misappropriated Jasmine’s trade s ecrets, harming Jasmine in the process. According to Jasmine’s trial br ief, one of the main trade se crets at issue that Marvell allegedly misappropriated wa s its RTL code. “RTL” stands for “register transfer language,” which is a general description for “any computer coding utilized to test the functionality of computer hardware,” such as Jasmine’s ASIC chips. Jasmine argued that its creation of the verified RTL code repr esented a real advance in the science of computer networking, and was something that possessed tremendous value. Jasmine did not list JSLIP as one of its trade secrets, but did admit that without JSLIP some of its technology, including its packet switc h fabric, would not function. Notably, Jasmine’s trial brief never argued that the voicemail left for Wei
amounted to “use” of its trade secrets under th e UTSA, but simply that the voicemail was evidence of improper acquisition, and further suggested improper use of Jasmine’s trade secrets. A Jasmine expert testified at tria l that the damages incu rred by Jasmine was in the amount of approximately $25 million. Jasmine also argued that Marvell violated the terms of the parties’ nondisclosure agreemen t when its employees failed to completely destroy all traces of Jasmine’s confidential information. Several Marvell employees testified that Marvell retained copies of certain documents provided by Jasmine with Marvell’s legal department in an ticipation of a possible litigation. Marvell rejected these arguments at trial, and asserted that deteriorating market conditions, not Marvell’s alleged misappropria tion of trade secrets, was the cause of Jasmine’s eventual bankruptcy and downfall. Further, Ma rvell maintain ed that the
voicemail at issue was not harmful to Jasmin e, as it simply involved several Marvell employees discussing hypothetical situations regarding use of Jasmine’s trade secrets. Additionally, Marvell presented evidence that Jasmine could not have suffered any harm15 because it did not develop the JSLIP schedule r itself, since the company fraudulently and deceptively used McKeown’s ESLIP and ISLIP programs as the backbone of its own
JSLIP scheduler.
The trial concluded on Nove mber 9, 2010, and the jury returned a verdict after approximately two weeks of deliberation. With regards to Jasmine’s first cause of action for misappropriation of its trade secrets, th e jury found that Ja smine did own certain architectural design specifications used to im plement its ASIC chip set, and that these were trade secrets. The jury, however, foun d that Marvell did not improperly acquire or
use the trade secret. With regards to Jasmine’s second cause of action for breach of contract, the jury found that Jasmine did not comply with all of the significant aspects of the nondisclosure agreement, and that Jasmine was not ex cused from having to comply with the nondisclosure agreement. The jury simila rly found, on Jasmine’s claim of breach of implied covenant of good faith and fair dealing, that Jasmine failed to comply with all the significant aspects of the nondisclosure agreem ent. The jury did no t reach the issue of whether Marvell failed to comp ly with all the significant po rtions of the nondisclosure agreement for any of these two claims.
As for Jasmine’s claim of intentional in terference with a contractual relationship, the jury found that there was a contractua l relationship between Jasmine and its ASIC employees, that Marvell knew of this contractua l relationship, but that it did not intend to disrupt the performance of the contract. Th e trial court entered a judgment for Marvell pursuant to the jury’s verd ict on January 7, 2011.
The Posttrial Motions Jasmine filed a motion for a partial JNOV on January 20, 2011, pursuant to Code
of Civil Procedure section 629. Jasmine argued that if a jury ’s verdict is incorrect as a matter of law, the trial court must enter a JNOV in favor of the aggrieved party. ( Oakland Raiders v. Oakla nd-Alameda County Coliseum , Inc. (2006) 144 Cal.App.4th16 1175, 1194.) In part, Jasmine argued that the voicemail left by Gloss, Banerjee, and Janofsky itself “constituted a misuse of Ja smine’s Misappropriated Trade Secrets.” Jasmine also argued that b ecause Marvell dismissed its cr oss-complaint with prejudice, evidence of Jasmine’s alleged fraud should never have been admitted, and accordingly
substantial evidence did not support some of the jury’s special verdict findings. Jasmine filed a concurrent motion for a new trial on January 20, 2011. The
motion for new trial asserted that Jasmine was entitled to a new trial because the jury’s special verdict answers were inconsistent, th at the trial court committed reversible error by denying Jasmine’s earlier mo tion in limine to exclude ev idence about the allegedly fraudulent development of its JSLIP scheduler, and that Marv ell’s repeated allegations that Jasmine engaged in fraudulent activity deprived Jasmine of a fair trial. Marvell opposed both of these posttrial motions. In its oppo sition to the motion for a JNOV, Marvell argued that Jasmine was ra ising, for the first time in the motion for JNOV, that Marvell’s voicemail in itsel f “used” Jasmine’s trade secrets. On March 3, 2011, the trial court denied both of Jasmine’s motions. On March 14, 2011, Jasmine filed a timely notice of appe al over the judgment en tered on January 7, 2011 and the trial court’s order denying its motion for JNOV on March 3, 2011.
D ISCUSSION Jasmine pursues two main arguments on appe al. First, Jasmine argues that it is entitled to a partial JNOV because the voice mail left by Marvell employees by itself constituted a misappropriation of its trade secrets. Second, Jasmine contends that the judgment must be reversed because the tria l court erred in faili ng to give Marvell’s dismissal with prejudice of its cross-complaint the preclusive effect that was required,
which therefore allowed Marve ll to erroneously introduce evidence of the allegedly fraudulent development of Jasmine’s JSLIP scheduler, resulting in prejudicial error against Jasmine.17 For reasons that we will explain below, we find that neither of Jasmine’s arguments have merit. We address both of Jasmine’s principle contentions in turn.
1. JNOV First, Jasmine argues the trial court e rred in denying its motion for a JNOV on the
basis that the voicemail left for Jasmine execu tive Wei constituted a misappropriation of trade secrets. In short, Jasmine’s first argum ent hinges on this court’s determination of
whether or not the voicemail c onstituted “misappropria tion” or “use” of Jasmine’s trade
secrets in violation of the UT SA. According to Jasmine, any unauthorized use of trade secrets is a misappropriation, including transmittal of the voi cemail, and accordingly the jury’s findings that there was no misappropria tion cannot be reconciled with the law. However, we find that Jasmine waived this n ovel argument on appeal, as this contention is premised on a new theory of misappropriati on that was not presented to the jury or the trial court below, and was raised for the firs t time in posttrial motions . Furthermore, even if we were to entertain Jasmine’s arguments on the merits, we find that simply referring
to a trade secret in a conversa tion, without discussing any speci fics of the trade secret or employing the trade secret in some manner, is not a “misappropriation” or “use” of the
trade secret under the UTSA. Standard of Review On appeal, we review the trial court’s denial of a motion for a JNOV and examine if substantial evidence suppor ts the original verdict. ( Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) A motion for a JNOV can only be granted by a court if, after reviewing the evidence in the light most favorable to the prevailing party,
there is no substantial evidence to support the verdict. ( Ibid. ) Overview of the UTSA
Before we turn to the merits of Jasmin e’s claim, we first briefly overview the UTSA, which sets forth guide lines on what constitutes misa ppropriation or improper use
of a trade secret. The UTSA is located in the Civil Code, sections 3426 through 3426.11,18 and allows plaintiffs to recover damages for improper use or misappropriation of trade secrets that they own. (Civ. Code, § 3426 .3.) Civil Code section 3426.1 provides a definition of a trade secret, and specifies that a trade secret is “i nformation, including a formula, pattern, compilation, program, device, method, technique, or process, that: [¶] (1) Derives independent economic value, actua l or potential, from not being generally known to the public or other persons who can obtain economic valu e from its disclosure or use; and [¶] (2) Is the subject of efforts that are reasonable unde r the circumstances to maintain its secrecy.” ( Id . § 3426.1, subd. (d).) “A trade secret is misappr opriated if a person (1) acquires a trade secret knowing or having reason to know that the trade secr et has been acquired by ‘improper means,’ (2) discloses or uses a trade secret the pers on has acquired by ‘improper means’ or in violation of a nondisclosure obligation, (3) discloses or uses a trade secret the person
knew or should have known was derived from another who had acquired it by improper
means or who had a nondisclosure obligation or (4) discloses or uses a trade secret after learning that it is a trade secret but before a material change of position. (Civ. Code, § 3426.1, subd. (b).)” ( Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 66 ( Ajaxo ).) In sum, under the UTSA, in order to sufficiently state a cause of action of trade secret misappropriation, the plaintiff must demonstrate three essential elements (1) it owned a trade secret of economic value, (2 ) that the defendant in question somehow acquired, used, or disclosed the plaintiff’s trade secret through improper means as described above, and (3) there was resulting harm. ( CytoDyn of New Mexico , Inc. v.
Amerimmune Pharmaceuticals , Inc. (2008) 160 Cal.App.4th 288, 297.) The UTSA does not define “use,” but rather “leaves their delineation to be adjudicated in light of the purposes and other provisions of the act.” ( Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210, 222 ( Silvaco ), disapproved of on another ground in Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337.) “As it19 appears in the act, the n oun ‘use’ is surely intended in the ordinary sense, i.e., ‘[t]he act of employing a thing for any (esp. a profitable) purpose ; the fact, state, or condition of being so employed; utilization or employment for or with some aim or purpose, application or
conversion to some (esp. good or us eful) end.’ (19 Oxford E nglish Dict. [(2d ed. 1989)] p. 350, italics added.)” ( Silvaco , supra , at p. 223.) Accordingly, a trade secret is “used” when it is exploited for an a dvantage, such as if a compa ny takes a written computer code and incorporates it into its own program or product. ( Id. at p. 224.) Forfeiture of Claim Preliminarily, Marvell contends that Jasmine forfeited its argument that the
voicemail constituted “use” of a trade secret because it did not raise this specific argument below before the trial court. The th eory Jasmine presented to the jury was that
the voicemail suggested that misappropriation took place, not that the voicemail itself was misappropriation, and that Marvell breac hed the nondisclosur e agreement when it failed to destroy all documents related to Jasm ine’s trade secrets since it retained copies of some information with its attorneys. It is Jasmine’s position that because this new argument rests “ solely on the irrefutable fact that Ma rvell left the voicemail” (italics added), it therefore presents as a question of law based on und isputed facts that this court should consider desp ite the failure to raise the argument below. However, Marvell contends that this new theory is actually pr emised on three disputed facts: that Marvell knew the trade secrets, that the voicemail wa s likely to result in injury, and that the
voicemail discussion violated the nondisclosur e agreement between th e two companies. On appeal, a litigant “may not change his or her position” and “assert a new theory.” ( Brown v. Boren (1999) 74 Cal.App.4th 1303, 1 316.) The reason behind this rationale is that doing so would be unfair to both the trial cour t and the opposing party, as the opposing party would have no opportunity to present cont rary arguments below to the trial court and jury. ( Ibid. ) However, as the reviewing court, we retain the discretion to consider new theories on appeal if the theo ry is a matter of law that simply requires20 application to undisputed facts. 10 ( Ibid. ) We agree with Marvell’s argument that Jasmine’s new theory of misappropriation is based on disputed facts that were not resolved by the jury. From the face of Jasmine’s arguments, it app ears that it is their contention that the
voicemail itself constituted “use” of Jasmine’ s trade secrets. Jasmine argues that since
the existence of the voicemai l is an undisputed fact, whet her or not the voicemail’s existence therefore constitutes “use” is a ques tion of law applied to undisputed facts.
Jasmine further contends that Marvell need not have possessed actual knowledge of the
trade secrets for it to “use” Jasmine’s trade secrets, and so it is of no relevance if Marvell’s possession of the trade secrets was a disputed fact. Jasmine argues that what matters is that the voicemail “clearly presumed that Marvell had Jasmine’s secrets.” In Jasmine’s own words, whether or not the par ticipants in the voi cemail actually knew of the trade secrets in question has no di rect bearing on the issue at hand. However, any “use” of a trade secret does not necessarily amount to misappropriation. A person only misappropriates a trade secret if the disclosure or use was improper, such as if the use vi olates a nondisclosure agreement. ( Ajaxo , supra , 135 Cal.App.4th at p. 66.) To that end, Jasmin e contends that Marvell’s use of the trade secrets was improper because it violated th e terms of the companies’ nondisclosure agreement, which specifies th at Marvell will not “use any Confidential Information for any purpose except to evaluate and engage in discussions concerning a potential business relationship between [Jasmine] and Marvell.” Accordingly, Jasmin e infers that the contents of the voicemail indisputedly violated the terms of the nondi sclosure agreement,

10 Jasmine did raise this issue in its pos ttrial motion to the court for a JNOV and a motion for a new trial, but similarly, new theo ries may not be presented before the trial court for the first time on posttr ial motions unless it is also a theory based on a question of law premised on undisputed facts. ( Stevens v. Owens-Corn ing Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653-1654.)21 as Marvell did not use the trade secrets for the purpose of discussing a potential business relationship with Jasmine. Marvell argues th at whether or not the voicemail constituted a
violation of the nondisclosure agreement is actually a disput ed factual issue that they were not able to present below. We agree. Here, Jasmine and Marvell argued before the jury about whether or not Marvell violated the nondisclosure agr eement when it failed to destroy all scintilla of confidential information provided by Jasmine. Marvell employees test ified at trial that it retained
some of the confidential inform ation and turned it over to Ma rvell attorneys. Jasmine’s theory before the jury was that Marvell’s failure to destroy all documents constituted a
violation of the nondisclosur e agreement. However, the ju ry never reached a verdict on
whether or not Marvell violated the nondisclo sure agreement, as it found that Jasmine failed to fully comply with the nondisclosu re agreement itself. 11 Jasmine never asserted that Marvell’s voicemail discussion regardin g the trade secret itself constituted a violation of the nondisclosure agreement, and in fact has raised this theory, like its theory
that the voicemail “used” trade secrets under the UTSA, for the first time on appeal. It is a disputed fact which Jasm ine’s theory relies upon. 12

11 The jury’s special verdic t form contained a series of questions divided into different sections that tracked Jasmine’s clai ms against Marvell. Section II, titled “As to Jasmine’s cause of action for breach of cont ract against Marvell,” asked: “8. Did Jasmine do all, or substantially all, of the si gnificant things that the contract, known as the NDA, required it to do?” The jury put a checkmark next to “no.” The next question read, “9. Was Jasmine excuse d from having to do all, or substantially all, of the significant things that the NDA required it to do?” The jury put a checkmark next to “no,” and was therefore instructed via the jury form to proceed to section III, skipping over the question of whether or not Marve ll partook in any activity that may be a violation of the nond isclosure agreement.
12 Marvell also argued that whether or not it actually posse ssed Jasmine’s trade secret was also a disputed fact. Howeve r, we determined that whether or not the voicemail violated the nondisclosure agre ement signed by Jasmine and Marvell is a disputed fact. Accordingly, it is not necessary for us to address whether or not Marvell’s (continued)22 We therefore find that Jasmine’s new theory of misappropriation relies on disputed facts, and is therefore not prop erly raised for the first time on appeal. Additionally, even if we were to consider this argument on the merits, we find that Jasmine’s argument that the voicemail itself constituted an inappropriate “use” of its
trade secrets fails on the merits. Discussing a Trade Secret Is Not “ Use ” in this Context
As discussed ante , the UTSA does not explicitly defi ne “use,” though case law has interpreted “use” as the incorp oration or dissemination of tr ade secrets for a defendant’s own advantage, such as taking the trade s ecret and applying it to the defendant’s own products or services for the de fendant’s own advantage. ( Silvaco , supra , 184 Cal.App.4th at pp. 222-224.) Jasmine argues that “use” under the UTSA should actually be even more broadly defined, such that Marvell’s voicemail discussion of Jasmine’s technology would constitute a “u se.” We decline to appl y such a broad definition. In part, Jasmine relies on Syngenta Crop Protection , Inc. v. Helliker (2006) 138 Cal.App.4th 1135 ( Syngenta ), and argues that the holding in Syngenta is applicable in showing that a passive use of a trade secret still violates the UTSA. However, Jasmine’s
reliance on Syngenta is misleading, as Syngenta is distinguishable on several grounds. Syngenta was a company that i nvented metalaxyl, which was used as a pesticide product. ( Id. at pp. 1146-1147.) Syngenta registered the product with the United States Environmental Protection Agency (EPA) an d the state Department of Pesticide Regulation (Department). ( Ibid. ) With its registration, Syngenta also submitted studies and other information on the chemistry, health effects, and environmental impact of the substance as required under law. ( Ibid. ) Syngenta stopped manufacturing metalaxyl and informed the Department that it would not aut horize the consideration of any of the data

possession of the trade secrets was also a disput ed fact that was not properly raised in front of the jury.23 it previously submitted to support a produc t registration by another applicant. ( Ibid. ) Gustafson, another company, also manufact ured pesticide produc ts that contained metalaxyl and applied for regist ration with the Department. ( Ibid. ) In its registration materials, Gustafson did not refer the Department to a ny of the previously-submitted Syngenta studies, nor did it reference any of the previously submitted research. ( Ibid. ) In a similar situation, Dow, another pesticide company, also invented a substance which it submitted for registration with the Depart ment, along with accompanying reports and studies. ( Id. at p. 1147.) Syngenta sued Gustafson and the Department, and Dow sued the Department, in part alleging that the Department misappropria ted trade secrets when it considered past data submitted by Syngenta an d Dow in support of the ne w product registrations. ( Syngenta , supra , 138 Cal.App.4th at pp. 1148-1150.) All partie s eventually moved for summary judgment, and the trial court sust ained summary judgment for Syngenta on one cause of action, but sustained summary judg ment for the Department and Gustafson on the remaining causes of action including the cause of action for violation of the UTSA, finding that the Department’s “ ‘passive cons ideration’ ” of the previously submitted data did not constitute “use.” ( Id. at p. 1150.) The appellate cour t held that this finding by the trial court was in error, as the Department “used” data when it considered any of Syngenta and Dow’s previously submitted information. ( Id. at p. 1172.) Once the Department considers the previously submitte d data, it relieves the current applicant--
such as Gustafson--of the need to spend money to pr oduce data results thereby benefitting the new applicant. ( Ibid. ) Jasmine is correct in asserting that the term “use” under the UTSA has been broadly defined, as illustrated by the court’s interpretation in Syngenta . “Use” may certainly encompass many applications of a tr ade secret, including passive consideration of data. Furthermore, “[e]mploying the confidential information in manufacturing, production, research or development, mark eting goods that embody the trade secret, or24 soliciting customers through the use of trade secret information, all constitute use.” ( PMC , Inc. v. Kadisha (2000) 78 Cal.App.4th 1368, 1383 .) Federal courts have also determined that “internal experimentation with trade secret information not resulting in a market product can constitute use.” ( 02 Micro Intern. Ltd. v. Monolithic Power Systems (N.D.Cal. 2005) 399 F.S upp.2d 1064, 1072.) Nonetheless, Jasmine’s curre nt theory is dissimilar to the passive consideration of trade secrets employed by the Department in Syngenta . A passive consideration in violation of the UTSA would, under Syngenta , be properly illustrated as “using” the data by considering it without proper permission, th ereby relieving a second company of the responsibility of providing the same data, to the second company’s economic benefit. ( Syngenta , supra , 138 Cal.App.4th at p. 1172.) Here, Jasmine’s theory is not that Marvell passively considered Jasmine’s trade secrets when it developed its own technology. Rather, Jasmine argues that pass ive consideration or use of a trade secret
occurs when someone mere ly references a trade secret in a conversation.
Jasmine’s definition of “use” cannot sta nd under the UTSA. We cannot find law directly on point that specifically discusses or analyzes the situation we have before us. In short, there is no specific law that has de veloped that clearly holds that an internal discussion of whether or not one company’s us e of another company’s trade secret would
constitute a “use” of a trade secret in of itsel f. However, in consid ering the case we have before us on the merits, we cannot read the UTSA in such a way that such conversations alone would constitute a misappropriation. Here, Janofsky and Gloss engaged in a conversation with their client, Banerjee, a Marvell employee, about a hypothetical situation about the potential le gal implications of using Ja smine’s trade secrets. No specifics of Jasmine’s trade secrets were di scussed in the voicemail, only that Jasmine possessed trade secrets which Marvell may ha ve misappropriated. The voicemail itself, as Jasmine argued below to the jury , tends to suggest that Marvell may have misappropriated and used Jasmine’s trade se crets in violation of the UTSA. The25 voicemail itself is not a “use,” nor can it be . A discussion, in generic terms, of a company possessing a trade secret, and a hy pothetical discussion of the possible ramifications against a company’s execu tives if a trade secret is somehow misappropriated, is not “use” as contemplated by the UTSA.
An illustration of such a limitation can be found in the recently decided federal district case, Brocade Communications Syst ems Inc. v. A10 Networks , Inc. (N.D. Cal. Feb. 12, 2013) __ F.Supp. __ [2013 WL 557102; 2013 U.S. Dist. LEXIS 18870] ( Brocade ). In Brocade , the federal district court contemplated the legality of an injunction imposed against A10 prohibiting the company from further misappropriating Brocade’s trade secrets after a jury fo und A10 liable for misappropriation. ( Id. at p. *1.) A10 moved to modify portions of the injunction, which the tr ial court granted in part. ( Ibid. ) As it stood, the injunction as drafted would have prohibited A10’s attorneys from utilizing the trade secrets during the course of the litigation before the trial court and throughout the pendency of a future appeal. ( Id. at p. *9.) A10 argued that this portion of the injunction should be modified so that its attorneys would be allowed to have access to the trade secrets during the course of the litigation, which Brocade conceded. ( Ibid. ) However, A10 further argued that its attorney s should have ongoing access to Brocade’s
trade secrets while A10 modified its technology to design and remove the misappropriated trade secrets. ( Ibid. ) Brocade disagreed, arguing that any advice given to A10 by attorneys with know ledge of Brocade’s trade secrets would be using the trade secrets in violation of the UTSA. ( Ibid. ) The district court agreed with A10, finding that
“use” under the UTSA did not extend to include an attorney advising its clients on how to
avoid practicing the trade secrets. ( Ibid .) While we are not bound by the decision of the district court, we find its reasoning persuasive. In this instance, the voicem ail left by Marvell indicated that Marvell attorneys were speculating as to the potential penalties to be imposed if the company was found to have misappropriated Jasmine’s trade s ecrets. Like the atto rneys’ contemplated26 actions in Brocade (advising its clients on how to av oid using a trade secret), Marvell’s attorneys were advising and discussing th e potential ramifications against Marvell
executives if it did use the trade secret. Extending th e UTSA to prohib it an attorney, even an attorney with knowledge of the trade secret, from contemplating the potential legal consequences for misappropriating a tr ade secret, would frustrate an attorney’s ability to serve and advise his or her clients. The UTSA does not protect the amorphous concept of a “trade secret.” Most technology companies possess some sort of in tellectual property or trade secret not commonly known to the public, which is the backbone of th e company’s profitability and economic viability. Therefore, the fact that Ja smine possessed some sort of trade secret is an assumption that can be readily made. It follows that a generic conversation about the potential misuse of some sort of trade secr et, without going into specifics of the trade secret, does not expose the listener to any co nfidential information, and more importantly
does not “use” the information as contemplated by the UTSA. In short, the UTSA does not prevent misappropriation by prohibiting one company fro m discussing, in general terms, the fact that another company has a trade secret. The UTSA protects a company’s specific trade secret from misuse. In the fact ual situation presented before us, we find Jasmine’s theory that the vo icemail itself constituted a misappropriation of its trade
secrets flawed. Further, Jasmine’s argument that the voice mail’s contents soured the relationship between the two parties, thereby costing Ja smine the economic benefit of a possible acquisition by Marvell, is similarly flawed . Certainly, the misunderstanding that occurred as a result of the voicemail likely im parted a negative impact on the burgeoning business relationship between the two co mpanies. However, as Jasmine aptly
characterized the voicemail in its trial brief, the voi cemail by itself only provided evidence, or an inference, that some of Jasmine’s trade secrets may have been misappropriated. It is possible that th e voicemail caused economic harm because it27 created panic and distrust between the two comp anies, but this harm was not incurred as a result of a misappropriation of trade secrets. As a result, we find that Jasmine’s argum ent that the voicemail itself constituted a misappropriation of its trade secrets would fa il on the merits, even if Jasmine had not forfeited the argument on appeal for failing to ra ise it below. We therefore find no error
with the trial court’s denial of Jasmine’s motion for a JNOV.
2. Marvell ’ s Dismissal of its Cro ss-complaint and Retraxit Jasmine’s second main argum ent on appeal is that Marve ll’s dismissal of its crosscomplaint with prejudice should have precluded the admission of any related evidence or claims previously raised in the dismissed cross-complaint. Jasmine argues that the trial court incorrectly denied its motion in lim ine to exclude all such evidence, and accordingly the jury trial was improperly tainted w ith erroneous eviden ce. Preliminarily, Marvell argues that Jasmine is precluded from raising this objection on appeal because it forfeited it below by failing to make specifi c objections to any of the evidence of Jasmine’s wrongdoing presented to the trial court and to th e jury. We find merit to Marvell’s argument regarding forfeiture, and fu rther find that even if we consider Jasmine’s contentions on the merits, they would fail.
A. Standard of Review Jasmine’s argument that the dismissal of the cross-complaint constituted a retraxit and therefore acted as a bar against inclusio n of any fraud-related evidence is based upon undisputed facts. Accordingly, we revi ew Jasmine’s argument de novo. (See Alpha
Mechanical , Heating & Air Conditioning , Inc. v. Travelers Casualty & Surety Co. of
America (2005) 133 Cal.App.4th 1319, 1326 ( Alpha ).)
B. Failure to Make Specific Ob jections to the Evidence As previously described, Jasmine made a pretrial motion in limine to exclude all evidence of wrongdoing ste mming from Marvell’s dismissed cross-complaint.
Thisincluded evidence of Jasm ine’s allegedly fraudulent de velopment of JSLIP. No28 specific evidence, such as a particular testim ony or exhibit, was re ferenced in Jasmine’s motion in limine. In support of its pretri al motion, Jasmine argued that retraxit barred admission of the evidence, which is the same argument it makes now on appeal. 13 Marvell preliminarily contends that this ar gument is forfeited beca use Jasmine failed to make specific objections to the eviden ce introduced belo w. We agree. Evidence Code section 353 states that a j udgment or decision sh all not be reversed
due to an erroneous admission of evidence unless there is a clear record of a timely objection or a motion to exclude or to strike the evidence, and if the reviewing court
determines that it was error to admit the evidence and the e rror resulted in a miscarriage of justice. A motion in limine to exclude evidence can satisfy the requirements of Evidence Code section 353 if “(1) a specific legal ground for exclus ion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the eviden tiary question in its appropria te context. When such a motion is made and denied, the issue is pres erved for appeal. On the other hand, if a
motion in limine does not satisfy each of these requi rements, a proper objection satisfying Evidence Code section 353 must be made to pr eserve the evidentiary issue for appeal.” ( People v. Morris (1991) 53 Cal. 3d 152, 190 ( Morris ), disapproved of on another ground by People v. Stansbury (1995) 9 Cal.4th 824, 830.) Ordinarily, a ruling on a motion in limine is not binding on a trial court, as it may reconsider its ruling when the objectionable evidence is offered. ( People v. Karis (1988) 46 Cal.3d 612, 634, fn. 16.) A

13 Jasmine’s opening brief on appeal and its posttrial motion before the trial court discussed at length how Marvell’s dismissa l of its cross-comp laint with prejudice amounted to a retraxit, which therefore invo ked the doctrine of res judicata, barring relitigation of any of the claims previously cont ained in the cross-comp laint. A “retraxit” is what is now more commonly known as a dismissal with prejudice. ( Torrey Pines Bank , supra , 216 Cal.App.3d at p. 820.)29 failure to object to the challe nged evidence at the time it is offered normally constitutes a
waiver unless it satisfies th e requirements described by Morris. The requirement at issue here is whet her or not Jasmine’s motion in limine was specific enough to preserve its objections on appeal, despite th e lack of reference to any specific testimony or exhibit. As Morris described, under Eviden ce Code section 353, those contesting the admissibility of evidence must make an objection to a specific body of evidence, such as a particular te stimony or exhibit. For example, in Karlsson v. Ford
Motor Co. (2006) 140 Cal.App.4th 1202 ( Karlsson ), the Second District determined that Ford’s unsuccessful motion in limine to pr event admission of evidence of its alleged discovery abuses did not pr operly preserve the objection for appellate review. ( Id. at pp. 1227-1228.) In Karlsson , Ford filed its motion in limine seeking to exclude evidence of its discovery abuses prior to any sanctions being filed, and prior to the filing of the discovery report that led to sanctions. Fo r obvious reasons, Ford’s motion in limine failed to reference specific passages or identif y any particular comments to be excluded, as Ford had no knowledge of wh at kind of evidence would be produced at the time the motion was filed. ( Ibid. ) Accordingly, the court of ap peal deemed Ford’s objections waived, as the motion in limin e was not sufficient under Evidence Code section 353. ( Ibid. ) Similarly, in People v. Cowan (2010) 50 Ca l.4th 401 ( Cowan ), the California Supreme Court considered a case where a cr iminal defendant made a pretrial blanket motion to bar “ ‘any and all’ postmortem photog raphs” of the victims in the case. ( Id. at p. 476.) The defendant sought to exclude the evidence unde r Evidence Code section 352, which is subject to the same requirement s of a specific objection to maintain appealability under Evidence Code section 353. 14 In Cowan , the trial court overruled the

14 Evidence Code section 352 allows a cour t to exercise its di scretion to exclude any evidence if the probative value of the evidence is substantially outweighed by the (continued)30 defendant’s preliminary motion to exclude all photographs of the victims on the basis of relevance, as the trial had not yet begun and therefore the c ourt could not determine if all photographs would be irrelevant. ( Cowan , supra , at p. 476.) However, in its ruling the court left open the possibility that upon a later objection, it would reconsider its ruling and exclude certain photographs from admission. ( Ibid. ) Later, the photographs were admitted, and defendant failed to object. ( Ibid. ) The Supreme Court thereafter
determined that defendant forfeited his conten tions on appeal because of his failure to object to the photographs when they were admitted. ( Ibid. )
These cases illustrate that a blanket moti on in limine seeking to exclude all types of evidence, including a motion in limine to exclude all evid ence in a specific category, such as evidence of alleged discovery violations, or all postmortem photographs of victims, is not specific enough to sa tisfy Evidence Code section 353. ( Morris , supra , 53 Cal.3d at p. 190.) The motions made by the parties in Karlsson and Cowan identified a category of evidence to be excl uded, but failed to identify a particular and identifiable body of evidence. We find the decision in Karlsson persuasive, and further find that the situation contemplated by the court in Karlsson similar to the one presented here. Jasmine, in its motion in lim ine before the trial court, did not specify exactly what evidence it sought to excl ude, and only in broad strokes informed the court of its desire to exclude any evidence of its alleged fraud or wrongdoing in the development of JSLIP. Again, no particular, identifiable body of ev idence was described in the motion in limine. Undoubtedly, since the motion was filed before commencement of the actual jury trial began, Jasmine might not have known wh at kind of evidence wo uld be presented at trial, and under what context Marvell would s eek to introduce evidence. Nonetheless,

probability that its admission woul d produce undue prejudice or mislead the jury, or if the probative value is substantially outweighe d by the probability th at admission of the evidence would be unduly time consuming.31 that is why motions in limine do not always preserve an objection to the admission of evidence on appeal. In order to preserve this objection on appeal, Jasmine would have had to voice its objection to th e specific evidence it sought to exclude during trial, which
it failed to do. Jasmine argues that it did not forfeit its retraxit-related arguments here on appeal
because after the trial court denied its mo tion in limine it was futile for it to pursue objections at trial. It is tr ue that a party need not object when doing so would be futile. (See People v. Arias (1996) 13 Cal.4th 92, 159; People v. Sandoval (2001) 87 Cal.App.4th 1425, 1433, fn. 1.) In this case, we do not find it unequivocal that an objection at trial would have been futile. A trial court may reconsider its ruling on a motion in limine during the course of the trial. ( People v. Karis , supra , 46 Cal.3d at p. 634, fn. 16.) Though the court made it clear that it believed that evidence of fraud and
fraudulent concealment in the development of JSLIP was ad missible on the basis that
such evidence su pported Marvell’s general denial and not its affirmative defenses, it did not make a ruling on each a speci fic body of evidence presented in a particular context at
trial. In part, Jasmine relies on our decision in Burch v. Gombos (2000) 82 Cal.App.4th 352 ( Burch ), for its argument that an objecti on would have been futile and thus no objection was necessary to preserve the argument on appeal. Burch is not wholly applicable to the present case. In Burch , the appellant contended the trial court erred in permitting the respondents from in troducing evidence of a disputed roadway’s public use because respondents had previo usly responded to a reques t for evidence regarding the same issue by admitting th ey had no evidence of a public use. ( Id. at p. 355.) Prior to the commencement of the trial, appellants filed a motion in limine with the trial court arguing
for exclusion of all evidence of recreational use of the disput ed roadway prior to 1972. ( Id. at p. 357.) During trial, a witness testified to recreationa l use of the roadway prior to 1972, though appellant failed to object. ( Ibid. ) Another witness testified to another32 recreational use of the roadway, and appellant raised an objection and asked that her motion in limine be addressed. ( Ibid. ) The trial court denied the motion in limine. ( Ibid. ) At that point, this court surmised th at “[w]hile [appellant] did not specifically object to any of this testimony, her motion in limine had already been denied and it obviously would have been futile to do so.” ( Ibid. )
Jasmine claims that this case stands for the proposition that if a motion in limine is denied, a party to an action need not rais e futile evidentiary obj ections in order to preserve appellate review. In the interest of judicial economy, it seems a fair rule that if raising an objection after a failed motion in li mine is futile, further objections need not be raised before the trial court. Nonetheless, as Cowan and Karlsson illustrate, a denial of a motion in limine does not necessarily rende r a future objection futile. In certain circumstances, as discussed in Burch , a denial of a motion in limine definitively indicates that all future objections will be futile. Howeve r, this is not always the case. In a similar argument to Jasmine’s present contention in Karlsson , Ford argued th at it was excused from making any objections before the trial cour t because the trial court made it clear that the opposing party could discuss Ford’s concealment of evidence, and because the comments made by the trial court denying Ford ’s posttrial motions for a new trial and
JNOV indicated that the court would have overruled any objections. ( Karlsson , supra , 140 Cal.App.4th at p. 1229.) The appellate court determined that the statements Ford cited did not render the company excu sed from making timely objections. ( Ibid. ) Like the appellate court’s determination in Karlsson , we find that Jasmine was not excused from making an objection on the basi s that doing so would have been futile. Furthermore, we find that factually, Burch is dissimilar. First, the Burch appellant did in fact object to some of the specific pieces of c ontested evidence. Second, the Burch trial
court denied the motion in limine unequivocally to allo w admission of all disputed evidence. In contrast, here, Jasmine did not specifically point out what type of evidence it sought to exclude, be it tes timony or exhibits. Jasmine’ s trial counsel even stated33 before the trial court’s ruling on its motion in limine that it would reserve its objections for specific pieces of evidence fo r the actual trial itself. In arguing for the trial court’s grant of its motion in limine, Jasmine’s trial counsel remarked that “[w]e are asking you to rule that they can’t intr oduce evidence to prove that we’re frauds or, you know, are guilty of unclean hands. Now, we’re not asking--we’ll save our objections as the evidence is proffered , but the reason I filed this t oday was I was concerned about [Marvell’s] opening statement. ” (Italics added.) Marvell asserts, and Jasmine does not dispute, that Jasmine never raised a specific objection to any of the theft/fraud evidence it sought to exclude under its motion in limine.
The trial court also did not make it une quivocally clear that raising a future objection to the evidence would be futile, onl y that it would deny the motion in limine
insomuch as it believed such evidence was coming in to su pport Marvell’s general denial. An objection at the time the evid ence was presented might have allowed the trial court to more accurately assess, given the context, wh ether or not the evidence was coming in to support a general denial or whether or not it was coming in to support an affirmative defense. Even now on appeal, Jasmine does not specifically identify each piece of evidence it now claims was erroneously admitte d. Jasmine provides, in its brief, an overview of certain pieces of evidence it belie ves was erroneously ad mitted, but in no way does Jasmine provide an exhaustive list of all evidence it claims should have been
barred. However, even if Jasmine did not forfeit th is contention by failing to object below, we determine that the trial court correctly fo und that evidence of Jasmine’s alleged fraud was admissible as part of Marvell’s general denial.
C. Overview of Res Judicata and Effect of Voluntary Dismissal with Prejudice Res judicata gives “ ‘ conclusive effect to a former judgment in a subsequent litigation involving the same controversy.’ ” ( Boeken v. Philip Morris USA , Inc. (2010)34 48 Cal.4th 788, 797 ( Boeken ).) The doctrine of res judi cata encompasses two different
forms. First, there is claim preclusion. Clai m preclusion bars a second suit between the same parties on the same cause of action. ( Boeken , supra , 48 Cal.4th at p. 797.) Second, there is issue preclusion, or collateral estoppe l. Collateral estoppel occurs when a prior judgment in a different action acts as a bar against a seco nd suit, and applies when certain requirements are met: “(1) the issue to be precluded must be identical to that decided in the prior proceeding; (2) the i ssue must have been actually litigated at that time; (3) the issue must have been necessarily decided; (4) the decision in the prior proceeding must be final and on the merits; and (5) the party ag ainst whom preclusion is sought must be in privity with the party to th e former proceeding.” ( People v. Garcia (2006) 39 Cal.4th 1070, 1077.) As our Supreme Court in Boeken stated, “for purposes of applying the doctrine of res judicata . . . a dismissal with prejudice is the equivalent of a final judgment on the merits, barring the entire cause of action.” ( Boeken , supra , 48 Cal.4th at p. 793.) “The statutory term ‘with prejudice’ clearly means th e plaintiff’s right of action is terminated and may not be revived. . . . [A] dismissal with prejudice . . . bars any future action on the same subject matter.” ( Roybal v. University Ford (1989) 207 Cal.Ap p.3d 1080, 1086- 1087.) “A retraxit arising from a dismissal with prejudice thus operates as a legal fiction, and it is given the same finality as if the matt er were adjudicated and proceeded to a final judgment on the merits.” ( Alpha , supra , 133 Cal.App.4th at p. 1331.)
D. Jasmine ’ s Retraxit Argument On appeal, Jasmine argues that it was erro r for the trial court to allow Marvell to introduce, admit, or make reference to any evidence of Jasmine’s alleged wrongdoing or fraudulent conduct during the de velopment of JSLIP. Jasmine argues that since Marvell dismissed its cross-complaint for fraud with pr ejudice, it should have been barred from relitigating or bringing fo rth claims that were already brou ght in the cross- complaint. We35 disagree with this view, and find that the trial court’s denial of Jasmine’s motion in
limine was not in error. In some instances, dismissal of a comp laint with prejudice will bar a party from raising the same arguments again in a separate case under the doctrine of res judicata, or collateral estoppel. Here, Jasmine argues that the Fourth District’s decision in Torrey
Pines Bank , supra , 216 Cal.App.3d 813, is applic able as eviden ce of Jasmine’s wrongdoing was improperly admitte d in support for Marvell’s affirmative defenses. In Torrey Pines Bank , the Fourth Appellate District determ ined that dismissing a case with prejudice effectively bars a party from asserti ng the same factual claims in the dismissed
case in an affirmative defense. In Torrey Pines Bank , a guarantor dismissed with prejudice a guarantor’s case against a bank for several claims, including breach of fiduciary duty and misrepresentation. ( Id. at p. 817.) The bank had earlier filed a complaint against the guaran tor in a separate action, seeking enforcement of the guarantor’s continuing guaranty to the bank for a loan. ( Ibid. ) After the guarantor dismissed his action, the bank moved for summary judgment against the guarantor, arguing that the guarantor’s dismissal of his action with prejudice barred him from bringing the same claims as affirmative defe nses in response to the bank’s complaint. ( Id. at p. 818.) The trial court granted summa ry judgment on some of the bank’s issues, but declined to grant summary judgment on other issues, findi ng that the retraxit doctrine did not bar the plaintiff’s affirmative defenses. ( Ibid. ) The bank petitioned for a writ of mandate, which the Fourth Appellate District granted after finding that the guarantor’s
affirmative defenses were barred by the principles of res judicata. ( Id. at pp. 819-820.) In its reasoning, the appellate court noted that res judicata not only bars a renewed claim over a litigated, and resolv ed, issue, but also bars “ ‘subsequent litigation of all
issues which were or could have been raised in the or iginal suit.’ ” ( Torrey Pines Bank , supra , 216 Cal.App.3d at p. 821.) Accordingl y, a final judgment on the merits on a36 particular issue, such as a voluntary dism issal with prejudice, would be conclusive between same parties. ( Ibid. ) However, this court has made an impor tant distinction that the holding in Torrey
Pines Bank is confined only to those cases where a party is asserting a ffirmative defenses based upon factual claims barred by the doctrine of retraxit. In Walsh , supra , 66 Cal.App.4th 1532, we expr essly stated that the Torrey Pines Bank decision held that “a party who dismisses his or her lawsuit with pr ejudice may not assert affirmative defenses in the nature of new matter where those affirmative defenses concern the same nucleus of operative facts as were alleged in the dismissed action.” ( Id. at p. 1545.)
Walsh involved a suit between Se rgio Construction, Inc. (SCI) and West Valley Mission Community College District (District). ( Walsh , supra , 66 Cal.App.4th at p. 1534.) SCI contracted with the District to build a gymnasium on its college campus, a
contract that was later terminated when SC I failed to complete th e construction project within a year. ( Id. at p. 1535.) SCI sued the District for breach of contract, and the
District filed a cross-co mplaint against SCI. ( Id. at p. 1536.) The cross-complaint was settled by SCI’s insurer and its bonding compan y, and the District dismissed its crosscomplaint with prejudice. ( Id. at pp. 1536-1537.) SCI then moved for judgment on the pleadings, arguing that since the District dism issed its cross-complaint with prejudice, its
dismissal acted as a retraxit which would theref ore render it impossible for the District to contest SCI’s claims. ( Id. at pp. 1537, 1541

. ) The trial court deni ed the motion, and the case proceeded to trial with a jury returning verdic t for the District, granting it attorney fees of approximately $600,000. ( Ibid .) SCI appealed, and we affirmed the judgment. ( Id. at p. 1548.) In order for SCI to prevail on its claim of breach of contract, it would have needed to plead and prove several elem ents: a contract existed, SC I performed on the contract or was excused from performance, the District breached the contract, and SCI incurred damages. ( Walsh , supra , 66 Cal.App.4th at p. 1545.) The District filed a general denial37 to SCI’s complaint, which mean t it denied, in one sentence, all allegations in the complaint. ( Ibid. ) SCI’s argument, that the Distri ct should have been barred from presenting evidence of SCI’s breach because it dismissed its cross-complaint with prejudice, was therefore flawed. As we surmised in Walsh , this evidence went directly towards disproving one or more of the e ssential elements of SCI’s complaint. ( Id. at p. 1546.) In Walsh , we considered and distinguished Torrey Pines Bank . We found that the guarantor in Torrey Pines Bank “did not deny the allegations in the bank’s complaint. Rather, he attempted to establish a defense independent of those allegations by asserting affirmative defenses, which brought ‘new matter’ into the lawsuit.” ( Id. at p. 1547.) In contrast, the District did not attempt to bri ng “new matter” into th e lawsuit, but rather presented evidence to refute the allegations brought by SCI in its complaint. ( Ibid. ) Jasmine argues that we shoul d reconsider our decision in Walsh , as our Supreme
Court’s more recent decision in Boeken , supra , 48 Cal.4th 788, holds that a voluntary dismissal with prejudice bars any fu ture action on the same issue. ( Id. at p. 793.) However, Jasmine misapplies the holding in Boeken. In Boeken , a wife filed suit against cigarette manufacturer Philip Morris for loss of consortium. In a separate case, her husband, a longtime smoker, filed suit against Philip Morris for wron gfully causing his cancer. ( Id . at p. 792.) The wife dismissed her suit for loss of consortium with prejudice several months after filing the action, and th e record remained silent on her reasons for dismissal. ( Id. at p. 793

. ) A year after dismissing her loss of consortium suit, and after her husband died from cancer, the wife brou ght a cause of action for wrongful death against Philip Morris. ( Ibid. ) Amongst her claims was a claim that she suffered from loss of love, companionship, and comfort. ( Ibid. ) Philip Morris demurred to the wrongful death cause of action, arguing that the wife’s dismissal with prejudice invoked the doctrine of res judicata, barri ng her new cause of action. ( Ibid. ) The trial court sustained the demurrer, and the Court of Appeal affirmed. ( Ibid. )38 The California Supreme Court affirmed the Court of Appeal’s decision. ( Boeken , supra , 48 Cal.4th at p. 805.) In coming to its conclusion, the court first outlined the two different forms of res judicata, clai m preclusion and issue preclusion. ( Id. at p. 797.) The
Boeken court recognized that in their particular situation they were concerned with claim preclusion and whether or not th e wife’s dismissal of her fi rst suit for loss of consortium acted as a bar against her second suit for wrongful death. ( Ibid. ) The court noted that when it came to issues of res judicata, the phrase “cause of action” has a “more precise meaning: The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced.” ( Id. at p. 798.) Accordingly, a cause of ac tion is based on the harm suffered by the plaintiff. In the wife’s case, the Supreme Co urt determined the prim ary right involved in
both the loss of consortium suit and the wr ongful death suit, insomuch as it sought damages for loss of companionshi p, was the same: the right not to be permanently and wrongfully deprived of her husband’s companionship and affection. ( Id. at pp

. 797, 804

. ) Accordingly, the Supreme Court determined that the wife’s second suit for wrongful death was precluded based on her dismissal w ith prejudice of her loss of consortium claim, despite the fact that it was based on a completely different legal theory. ( Id. at p. 804.)
The Boeken court explicitly considered the issue based upon claim preclusion , not issue preclusion. Here, we are concerned with issue preclusion. Marvell did not attempt to relitigate its fraud and misrepresentation claims by filing a new suit or cross-claim against Jasmine. Jasmine conflates and confus es the two forms of res judicata in arguing
that Boeken is applicable. We are not considering whether or not a second claim can be brought when a first claim ha s already been adjudicated c onclusively. Here, we are considering whether an issue, previously brou ght in a cross-complaint but dismissed with prejudice, may be raised as part of a party’s general denial in a separate litigation. This39 distinguishes this case from Boeken , and renders Jasmine’s argum ent on appeal similar to the parties’ contentions found in Torrey Pines Bank and Walsh

. Accordingly, despite the fact that in this case some of the issues were previously raised by Marvell in its dism issed cross-complaint, the doc trine of res judicata does not necessarily bar Marvell from introducing evid ence of Jasmine’s alleged wrongdoing. If Marvell attempted to relitigate this issue by filing a new complaint against Jasmine alleging fraud, the claims would be barred under claim preclusion . Res judicata would also bar relitigation of this same claim if Marvell attempte d to bring this action as an affirmative defense. ( Torrey Pines , supra , 216 Cal.App.3d at p. 821.) However, under
our decision in Walsh , supra , 66 Cal.App.4th at page 1545, if this evidence was brought to support Marvell’s general denial, it is not “new matter” and is thus properly
introduced.
The issue is thus whether or not the evidence of Jasmine’ s fraud and wrongdoing was correctly characterized by the trial court as part of Marvell’s general denial, or if it was, as Jasmine asserts, improperly introduced as part of Marvell’s affirmative defense. We find that it was properly introduced as part of Marvell’s general denial.
The difference between an affirmative de fense and a general denial, as explained by this court in Walsh , is that “ ‘[u]nder Code of Civil Procedure section 431.30, subdivision (b)(2), the answer to a complain t must include “[a] statement of any new matter constituting a defense.” The phrase “n ew matter” refers to something relied on by
a defendant which is not put in issue by the plaintiff . [Citation.] Thus, where matters are not responsive to essential allegations of the co mplaint, they must be raised in the answer as “new matter.” [Cita tion.] Where, however, the answer sets forth facts showing some essential allegation of th e complaint is not true , such facts are not “ new matter ,” but only

a traverse .’ ” ( Walsh , supra , 66 Cal.App.4th at p. 1546.) It is true that Marvell, in its answer to Jasmine’s complaint, a sserted an affirmative defense of unclean hands, though the instructions for this defense were never given to the40 jury. However, as the trial court noted in its denial of Jasmine’s motion in limine,
evidence of Jasmine’s wrongdoing supported Marvell’s gene ral denial. As we discussed earlier, a proper cause of action for trade se cret misappropriation under the UTSA must allege that the plaintiff company owne d a trade secret, the defendant somehow misappropriated and used the trade secret through improper mean s, and there was a resulting harm to the plaintiff. ( CytoDyn of New Mexico , Inc. v. Amerimmune
Pharmaceuticals , Inc. , supra , 160 Cal.App.4th at p. 2 97.) The evidence Marvell introduced at trial concerning Jasmin e’s alleged wrongdoing and fraud in the development of JSLIP goes toward disproving that Jasmine possessed a trade secret of value, and that there was resulting harm to Jasm ine as a result of the misappropriation. It follows that if Jasmine did not actually prope rly own the rights to JSLIP such that it was required to obtain a license to use the sche duler from Cisco, it would be difficult for Jasmine to prove that its trade secrets that relied upon the JSLIP scheduler had value, and that accordingly misappropri ation of those trade secrets caused Jasmine harm. Jasmine argues that this argument in part fails because it sp ecifically excluded
JSLIP as one of its listed trade secrets. Ho wever, during the trial Ma rvell sought to prove that many of Jasmine’s trade secrets woul d not function without JSLIP, including the RTL code which it claimed was its most important trade secret. 15 As Marvell described before the court, proving that Jasmine did not own a trade secret th at was of value would be part of its general denial against Jasmine’s claim of misappropriation. In light of the circumstances of this pa rticular case, we therefore agree with the
trial court’s assessment that evidence of Jasmine’s alleged fraud and wrongdoing was a vital part of Marvell’s general denial, not its affirmative defense. This evidence is

15 The RTL code is comprised of indi vidually numbered software, starting from No. 1 through No. 69. Number s 2 through 39 of the software files referenced JSLIP. Jasmine’s trial counsel described the RTL co de as being one of the company’s most valuable trade secrets in Jasmine’s trial brief.41 inextricably linked to whether or not Jasm ine actually owned tr ade secrets that had monetary value, and whether or not Jasmin e was therefore economically harmed by the purported misappropriation.
We therefore find no merit to Jasmine’s argument that the jury’s verdict should be reversed, as the trial court di d not err in denying the motion in limine to ex clude evidence of Jasmine’s alleged fraud.
D ISPOSITION The judgment is affirmed. Marvell is en titled to its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

Premo, Acting P.J.

WE CONCUR:

Elia, J.

Márquez, J.