Filed 8/18/23 Catwalk to Sidewalk, Inc. v. Hurt-Watson CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CATWALK TO SIDEWALK, INC.,

Plaintiff, Cross-defendant and 

Appellant,

v.

LANSEL ANN HURT-WATSON,

Defendant, Cross-complainant

and Respondent;

HEYRI J., INC.,

 Defendant and Respondent.

 B304088

 (Los Angeles County

 Super. Ct. No. BC702335)

APPEAL from a judgment and postjudgment orders of the 

Superior Court of Los Angeles County, Stephanie M. Bowick, 

Judge. Affirmed in part and remanded in part with directions.

Legacy Pro Law and Gi Nam Lee for Plaintiff, Crossdefendant and Appellant.
2

Park & Lim, S. Young Lim and Jessie Y. Kim for 

Defendant, Cross-complainant and Respondent Lansel Ann HurtWatson.

Law Offices of Park & Zheng, Stella K. Park and Yalan 

Zheng for Defendant and Respondent Heyri J., Inc.

_________________________

INTRODUCTION

Lansel Ann Hurt-Watson worked as a sales representative 

for a clothing manufacturer called Catwalk to Sidewalk, Inc. 

(Catwalk). For a time, she simultaneously worked as a sales 

representative for another clothing manufacturer called Heyri J., 

Inc. (Heyri J.); she then stopped working for Catwalk while 

continuing to be a Heyri J. sales representative. Catwalk 

responded to Hurt-Watson’s departure by suing her and Heyri J. 

for allegedly stealing its trade secrets. Hurt-Watson crosscomplained for unpaid commissions she claimed Catwalk owed to

her. The jury found no trade secret misappropriation and 

awarded Hurt-Watson $485,373 on her cross-claim.

On appeal, Catwalk argues we should reverse the judgment 

because of three alleged errors: a flawed special verdict form, 

insufficient evidence supporting the damages award to HurtWatson, and an improper award of prejudgment interest. We

affirm the trial court’s orders as to the special verdict form and

damages award, and remand with directions to correct the 

judgment’s prejudgment interest award.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. Hurt-Watson Works for Catwalk as a Sales 

Representative and Helps Sell Catwalk’s Pleione 

Brand to Nordstrom

We base our factual recitation on the evidence introduced 

at trial. Hurt-Watson started working for Catwalk in March 

2007. Hurt-Watson characterized her role at Catwalk as an 

“independent sales rep[resentative].” Hurt-Watson testified that 

in the fashion industry an independent sales representative can 

work for multiple manufacturers. During the time she worked 

for Catwalk, she also worked for Crystal K., Liverpool, and one 

other manufacturer whose name she could not recall. According 

to Catwalk’s owner, Kyong Won “Billy” Kang, when Catwalk 

initially hired Hurt-Watson it gave her a salary and paid her 

travel expenses, but at some point it began paying her through 

commissions.

Hurt-Watson knew the buyers for Nordstrom and 

Nordstrom Rack, and had earlier worked for them at Nordstrom 

for many years. Hurt-Watson’s value to her client manufacturers 

was the relationship she had with Nordstrom; she had especially 

useful information about the “P.O.V.” (Point of View) department 

at Nordstrom (POV), as she had started the department while 

she worked for Nordstrom. Knowing the buyers was key to her 

success as a salesperson. Kang testified that he hired HurtWatson in part because of her connection with Nordstrom.

One of the Catwalk brands Hurt-Watson worked on was 

“Pleione,” which generated many sales for Catwalk. Catwalk sold 

the Pleione brand to the Nordstrom POV department. Catwalk 

became one of the main manufacturers for Nordstrom after HurtWatson began working for Catwalk.
4

B. A New Nordstrom Buyer Demands that Catwalk 

Lower Its Prices

In May 2015, Mary Beth Gaffney became the buyer for the 

Nordstrom POV department. Hurt-Watson had worked with 

Gaffney at Nordstrom. From the time Gaffney became the buyer

for the POV department, she complained that Catwalk’s prices 

for the Pleione brand were too high. Gaffney continued to submit 

orders for the brand, but Hurt-Watson believed this was because 

Gaffney did not want to abruptly stop stocking the brand given 

that some customers went to Nordstrom to buy Pleione. HurtWatson relayed Gaffney’s comments to Kang and told him 

Catwalk needed to lower its prices. Kang acknowledged that 

Gaffney wanted Catwalk to lower its prices.

At a meeting on September 12, 2017, Gaffney told HurtWatson that Nordstrom’s sales of Pleione were down 37 percent 

year to date, and its receipts from sales of Catwalk products were 

down 28 percent. Gaffney demanded that Catwalk pay 

Nordstrom $432,000 because Nordstrom had not achieved its 

“guaranteed gross margin” pursuant to Nordstrom’s purchasing 

agreement. A guaranteed gross margin is the profit margin the 

retailer expects to achieve; for Nordstrom, the margin was 55 

percent. If a manufacturer’s product does not achieve the 

expected profit margin, then the manufacturer has to pay 

Nordstrom the difference.

Hurt-Watson met with Kang on September 14, 2017, to 

discuss Nordstrom’s demand that Catwalk pay under the 

guaranteed gross margin arrangement. Although Hurt-Watson 

and Kang dispute certain details of their discussions not relevant 

to the issues before us, both Hurt-Watson and Kang testified 
5

that, as a result of the meeting, Hurt-Watson agreed to lower her 

commission by 0.5 percent for five months.

The next day, September 15, 2017, Kang sent an e-mail to 

Gaffney, with a copy to Hurt-Watson, acknowledging that HurtWatson had shared with him Catwalk’s “[gross margin] 

performance plus that our cost[s] are higher than our 

competition.” Kang wrote, “I realize this year has been a 

challenge and I know we can turn it around and get back on top. 

I’m going to make it right and will give you the best cost, quick 

delivery and take fabric liability so we can turn quicker.” 

Catwalk paid Nordstrom “[v]endor [f]unded [m]arkdowns” 

totaling a little over $428,000.

C. Hurt-Watson Starts Working for Heyri J.

Heyri J. is a clothing manufacturer owned by Tiffany Lim. 

Shortly before the reduction in her sales commission with 

Catwalk, Hurt-Watson started speaking with Lim in August 2017

about becoming a sales representative for Heyri J. Hurt-Watson 

entered an agreement with Heyri J. in September 2017 to become 

a sales representative for it. On November 20, 2017, HurtWatson reported to Heyri J. that Gaffney, the Nordstrom POV

buyer, was interested in selling Heyri J.’s clothes online and then 

at its stores.

Hurt-Watson continued to represent Catwalk, along with 

Heyri J. On December 6, 2017, she met with Gaffney to discuss 

both Catwalk’s and Heyri J.’s styles. According to Hurt-Watson, 

she first discussed Catwalk’s Pleione brand and then later had a 

separate discussion about Heyri J.’s products. Hurt-Watson

provided separate notes to Catwalk and Heyri J. about the 

meeting. Gaffney placed orders with both Catwalk and Heyri J.
6

D. Hurt-Watson Stops Representing Catwalk and the 

Parties Sue Each Other

On March 2, 2018, Hurt-Watson e-mailed Kang to notify 

him that she was going to stop working for Catwalk effective

March 6, 2018.

Six weeks later, Catwalk filed a complaint against HurtWatson, Heyri J., and Lim. Catwalk filed an amended complaint 

on July 17, 2018, in which it asserted causes of action under the 

Uniform Trade Secrets Act (UTSA; Civ. Code, § 3426 et seq.) 

along with various tort causes of action, including breach of the 

implied covenant of good faith and fair dealing, intentional and 

negligent interference with contractual relations and prospective 

economic relationships, and conversion.

Hurt-Watson filed an initial cross-complaint on August 21, 

2018, in which she sought only indemnity and declaratory relief 

from fictitiously named cross-defendants. On September 20, 

2018, she filed a first amended cross-complaint seeking unpaid 

commissions from Catwalk under breach of contract and 

misrepresentation theories. Hurt-Watson filed a second amended 

cross-complaint on March 11, 2019, in which she maintained her 

claim for unpaid commissions and also added new claims not 

relevant to this appeal.

1

On October 8, 2019, shortly before trial was set to begin, 

Catwalk filed a second amended complaint in which it narrowed 

its claims to assert only causes of action under the UTSA against 

1 Those additional claims are not relevant because HurtWatson later withdrew them and proceeded with only her claim 

for unpaid commissions.
7

Hurt-Watson, Heyri J., and Lim.

2 Catwalk alleged three specific 

types of trade secrets: (1) “[t]rend [r]eports” from clients, 

including Nordstrom, which had information regarding the styles 

the clients were interested in buying for the upcoming season; 

(2) a “[d]esign [d]atabase,” which contained information 

regarding the clothes Catwalk manufactured; and (3) client 

information, including the names of retailer contacts, 

“preferences and desires as to [Catwalk’s] products, and financial 

accommodations.” Catwalk alleged that Hurt-Watson 

“misappropriated . . . [Catwalk’s] samples and/or designs to 

[Heyri J.] in order for [Hurt-Watson and Heyri J.] to develop 

similar designs and sell them to [Catwalk’s] [c]lients for [HurtWatson’s and Heyri J.’s] benefit.”

E. Trial

A jury trial began on October 10, 2019, with testimony 

continuing through October 21, jury instruction and closing 

arguments on October 22 and 23, and jury deliberations on 

October 23 and 24.

1. Catwalk’s Claims Under the UTSA3

Catwalk’s theory at trial was that Heyri J. hired HurtWatson specifically to obtain orders from Nordstrom POV, and 

2 Catwalk filed the second amended complaint after the 

trial court dismissed Catwalk’s tort causes of action on the 

ground that the UTSA preempted them.

3 During trial, Catwalk dismissed its claim against Lim, 

Heyri J.’s owner, with the stipulation that her actions “may still 

be attributed to . . . Heyri J.” Our summary of the evidence and 

the parties’ positions thus does not address Catwalk’s separate 

claim asserted against Lim.
8

that in the process of trying to obtain those orders Hurt-Watson 

and Heyri J. misappropriated Catwalk’s trade secrets. Kang 

testified that Catwalk’s sales to Nordstrom POV declined 

beginning in 2016 and were a fraction of what Catwalk expected 

during that time period: in 2015 the sales were $10.7 million, and 

they decreased to $6.7 million in 2016, to $3 million in 2017, and 

to $90,000 in 2018; Catwalk had no sales to Nordstrom POV in 

2019. Kang attributed this decline in sales to Heyri J. getting 

orders from Nordstrom POV instead of Catwalk.

Hurt-Watson testified that Catwalk’s sales to Nordstrom 

POV declined for a different reason, namely that Catwalk’s prices 

were too high. Hurt-Watson recounted that, when she met with 

Gaffney in December 2017, to discuss Catwalk’s products, they 

spent approximately 35 to 45 minutes talking about Gaffney’s 

position that Catwalk’s prices were too high. Hurt-Watson 

named the three reasons that Catwalk’s sales to Nordstrom 

decreased over time as “price, price, [and] price.”

Kang testified about Catwalk’s design database, known as 

the “W.I.P.” database, which he claimed contained trade secrets

regarding Catwalk’s products. The database contained designs

and patterns for garments Catwalk was producing, along with 

other information such as the fabric used, vendors who supplied 

materials, where the garments were fabricated, and the price and 

number of garments being produced. According to Kang, HurtWatson had “full access” to the W.I.P. database until she left 

Catwalk in March 2018. Kang claimed he did not know, before 

Hurt-Watson stopped working for Catwalk in March 2018, that 

she had been working for Heyri J., and if he had known he would 

have cut off her access to the W.I.P. database.
9

Hurt-Watson acknowledged that while working with 

Catwalk she had access to the W.I.P. database, which she also 

referred to as the “Work In Progress” database, and testified that 

she used the database to access information regarding clothes she 

had already sold for Catwalk.

Kang claimed that Hurt-Watson had “leaked” Catwalk’s 

designs. He identified four styles which he claimed Heyri J. had 

copied using information from Catwalk’s W.I.P. database. The 

Heyri J. designer responsible for the four styles testified that she 

had developed the styles by modifying designs she had created in 

prior years, and that she based her modifications for three of the 

styles on images the Nordstrom POV buyer, Gaffney, had posted 

on the internet through the Pinterest app. Kang agreed that 

Hurt-Watson had provided the images from Gaffney’s Pinterest 

account to both Catwalk and Heyri J., and that Catwalk came up 

with the designs it claimed Heyri J. copied based on the Pinterest 

images.

In addition to the W.I.P. database, Kang testified that 

Catwalk considered its “client information” to constitute trade 

secrets. Kang described this “client information” to include the 

buyer’s preferences and “buying style.” Kang also included in the 

concept of “client information” trend reports Catwalk received 

from Nordstrom. However, Kang and Hurt-Watson both testified 

that Hurt-Watson was Catwalk’s exclusive representative with 

respect to Nordstrom POV (and Nordstrom Rack), and Kang 

testified that Catwalk hired Hurt-Watson because of her prior 

relationship with, and knowledge about, Nordstrom, including 

the POV department.
10

2. Hurt-Watson’s Claim for Unpaid Commissions

Hurt-Watson was paid commissions as a percentage of 

sales that were delivered or “shipped” to retailers, such as 

Nordstrom, and she was paid her commission only after the 

product was delivered. There was a delay, lasting several 

months, between the time a retailer ordered product and when 

the product was delivered. Hurt-Watson was paid different 

commission rates for different retailers, and sometimes there 

would be adjustments to her commission rates.

a. Alleged Underpayment of Commissions from 

2014 to 2018

Hurt-Watson testified that she had been underpaid for 

commissions she earned from 2014 to 2018 while she was still 

representing Catwalk. She testified that she calculated she had 

earned $3,766,000 in commissions from 2014 to 2018. HurtWatson told the jury that she believed she was owed $1,110,000, 

based on her comparison of the $3,766,000 amount she had 

earned with the amount of commissions Catwalk had actually 

paid her during 2014 to 2018. Hurt-Watson also attempted to 

introduce corroborating testimony and documents from two 

personal assistants that worked for her. The court excluded the

offered exhibits at the request of Catwalk because Hurt-Watson 

was only entitled to commissions on the amount of product 

shipped, and the documents at issue recorded the amount of 

product ordered and not the amount shipped.

b. Unpaid Commissions from 2018 Onwards

Both parties agreed that Catwalk had not paid HurtWatson for commissions on product shipped in February 2018 

and the following months. Kang admitted that Hurt-Watson was 

entitled to $15,639.89 in commissions for February 2018 
11

shipments. On April 2, 2018, Catwalk issued a check to HurtWatson in the amount of $15,639.89, but stopped payment on the 

check. Kang testified that Catwalk stopped payment on the 

check “because . . . there was still a pending order . . . that was 

worth . . . $1.7 million . . . that needed to be . . . checked on.” 

Kang also admitted that Catwalk owed Hurt-Watson $62,825.60 

in commissions for product shipped in March 2018; he likewise 

explained the non-payment of that amount based on the $1.7 

million order which was still pending.

The $1.7 million issue was apparently related to a request 

by Nordstrom Rack to cancel part of an order it had made, which 

resulted in Catwalk producing product that Nordstrom Rack 

would not accept. Hurt-Watson denied that she owed any money 

to Catwalk in February or March of 2018, and stated that, as a 

sales representative, she would not be responsible to pay the 

manufacturer out of unrelated commission income if a retailer 

cancels an order.

There was no evidence about the specific amount of 

commission that Hurt-Watson was entitled to receive for orders 

shipped in April 2018 or the following months. She testified that 

she brought in $15 million to $20 million for Catwalk after she 

started working for Heyri J. and later testified she had not been 

paid commissions on orders for “like 25, 30 million” in product,

and her commissions on those orders would have been paid out 

through October 2018.

3. The Special Verdict Form

A party can be held liable under the UTSA for 

misappropriating a trade secret by improperly acquiring,

disclosing, or using it; there is a separate standard jury 

instruction for each of “acquisition,” “disclosure,” and “use.” 
12

(CACI Nos. 4405 [acquisition], 4406 [disclosure], 4407 [use].) 

When the parties discussed jury instructions on October 22, 2019, 

Catwalk’s counsel agreed that the instruction for “disclosure” of a 

trade secret (CACI No. 4406) would only apply to Hurt-Watson, 

and not to Heyri J. In addition, all counsel agreed the jury 

instruction regarding “acquisition” of a trade secret (CACI 

No. 4405) would apply only to Heyri J., and not to Hurt-Watson. 

The parties left in jury instructions regarding “use” (CACI 

No. 4407) as to both Hurt-Watson and Heyri J.4

Counsel for Hurt-Watson prepared a proposed special 

verdict form, which the court and counsel discussed on 

October 23, 2019.5 Hurt-Watson’s counsel explained that he had 

structured the question regarding whether Hurt-Watson had 

misappropriated Catwalk’s trade secrets (question No. 5) to ask

only if Hurt-Watson had “disclosed” Catwalk’s trade secret. 

According to counsel, this was based on the parties’ agreement 

4 Consistent with this agreement, the jury was provided 

with separate instructions regarding alleged “disclosure” (CACI 

No. 4406) and “use” (CACI No. 4407) of trade secrets by HurtWatson, and alleged “acquisition” (CACI No. 4405) and “use” 

(CACI No. 4407) of trade secrets by Heyri J. However, the 

parties failed to apply these changes to the more general 

introductory instructions (CACI Nos. 4400 and 4401). As a 

result, the jury was also instructed Catwalk claimed HurtWatson and Heyri J. had “misappropriated” its trade secrets, and 

“ ‘Misappropriation’ means the improper acquisition, use, or 

disclosure of the trade secret” (CACI No. 4400); and it was 

instructed Catwalk had to prove that Hurt-Watson and Heyri J. 

“improperly acquired, used, or disclosed” the alleged trade secrets 

(CACI No. 4401).

5 The proposed form itself is not in the record.
13

the day before that the jury instructions would only address one 

type of misappropriation by Hurt-Watson, namely “disclosure” of 

trade secrets. The proposed form also told the jury to skip 

questions about Heyri J.’s liability if it did not find Hurt-Watson 

had improperly disclosed a trade secret.

Hurt-Watson’s counsel was partially correct and partially 

mistaken about the jury instructions: while the instructions did 

not include the instruction regarding “acquisition” of the trade 

secrets by Hurt-Watson (CACI No. 4405), they did still include 

the instruction regarding “use” of the trade secrets by HurtWatson (CACI No. 4407). When Hurt-Watson’ counsel brought 

up the issue, both the court and Catwalk’s counsel apparently 

forgot that the parties had agreed to limit the jury instructions 

on misappropriation. Catwalk’s counsel argued that the special 

verdict form should include “[a]cquire, disclose or use.” The 

parties then agreed to make the change requested by Catwalk’s 

counsel, and the court read the agreed-upon language as follows:

“Question 5, ‘Did [Hurt-Watson] acquire, use or disclose any of 

[Catwalk]’s [t]rade [s]ecrets?’ ” The court asked, “Right?” and all 

counsel agreed. The court read the agreed-upon language in the 

parallel question regarding Heyri J. (question No. 9) as follows: 

“Did [Heyri] J. acquire, use or disclose any of the trade secrets, by 

improper means?” and Catwalk’s counsel agreed it was 

acceptable.

6 As with the prior version of the form, if the jury did 

not find Hurt-Watson liable for acquiring, using, or disclosing a 

Catwalk trade secret, it was not to answer question No. 9 about 

6 This was despite the jury instructions only addressing

Heyri J.’s “use” and “acquisition” of Catwalk’s trade secrets and 

not any purported “disclosure.”
14

Heyri J.’s liability. When the parties finished reviewing the form, 

the court took over the task of making the edits to the special 

verdict form document.

After counsel had completed their closing arguments, the 

court provided counsel with a revised version of the special 

verdict form.7 But question No. 5 on the form had not in fact

been revised, and still asked, “Did [Hurt-Watson] disclose any of 

the Catwalk . . . trade secret [sic] by improper means?” Nor had 

question No. 9 on the form been revised, as it still asked, “Did 

Heyri J. acquire and use any of the trade secrets by improper 

means?” However, after providing counsel an opportunity to 

review the form, when the court asked Catwalk’s counsel if he 

was “happy with the final version of the verdict form,” counsel 

responded, “Very happy, your Honor” and did not note any errors 

or omissions on questions Nos. 5 or 9.

4. The Jury’s Verdict

The jury returned its verdict on October 24, 2019. The jury 

found that Catwalk’s design database was a trade secret, but the 

trend reports generated by Nordstrom and Nordstrom’s contact 

information were not. In response to the question, “Did . . . HurtWatson disclose any of the Catwalk . . . trade secret [sic] by 

improper means?” the jury answered “No.” Following the 

instructions on the form, the jury did not answer question No. 9, 

“Did Heyri J. acquire and use any of the trade secrets by 

improper means?” or any of the following questions about Heyri 

J.’s alleged liability because the jury answered the question about 

Hurt-Watson in the negative. The jury found that Catwalk owed 

Hurt-Watson commissions in the amount of $485,373.

7 This revised form is not in the record either.
15

5. The Judgment

On November 22, 2019, the trial court entered judgment on 

the jury’s verdict, and filed and served a notice of entry of 

judgment that same day. Under the judgment, Hurt-Watson was 

awarded prejudgment interest at a rate of 10 percent “from the 

date of filing of [Catwalk’s initial] [c]omplaint.”

F. Catwalk’s Postjudgment Motions

Catwalk filed three posttrial and postjudgment motions: a 

motion to set aside and vacate the judgment under Code of Civil 

Procedure8 section 663, a motion for new trial, and a motion for 

judgment notwithstanding the verdict (JNOV).

In its motion to set aside and vacate the judgment, Catwalk 

challenged the award of prejudgment interest to Hurt-Watson

from the date its complaint was filed, and the award of costs to 

Heyri J.

In its motion for new trial, Catwalk presented two

arguments of relevance to this appeal. The first claimed the 

special verdict form was “fatally defective” because it allowed the 

jury to find Hurt-Watson liable only if she “disclosed” Catwalk’s 

trade secrets, and required the jury to make a finding about 

Heyri J.’s liability only if it found Hurt-Watson liable for 

disclosure of a trade secret despite the UTSA’s liability provisions 

for improperly “acquiring” and “using” a trade secret in addition 

to liability for “disclosing” one. The other argument claimed that 

insufficient evidence supported the judgment in Hurt-Watson’s 

favor for unpaid commissions.

8 All unspecified statutory references are to the Code of 

Civil Procedure.
16

In its JNOV motion, Catwalk sought judgment in its favor 

on its claims under the UTSA and on Hurt-Watson’s claim for 

unpaid commissions. Catwalk also contended in its JNOV 

motion that the special verdict was fatally flawed, but it did not 

explain how the alleged deficiency entitled it to a judgment in its 

favor against Hurt-Watson or Heyri J. under the UTSA.

The court denied Catwalk’s motion to set aside and vacate 

the judgment on January 14, 2020. It denied Catwalk’s motions

for new trial and for JNOV on January 23, 2020. We address the 

court’s rulings on Catwalk’s motions below to the extent they are 

pertinent to Catwalk’s appellate arguments.

G. Catwalk Appeals

On February 18, 2020, Catwalk filed a timely notice of 

appeal of the judgment and the trial court’s rulings on Catwalk’s 

posttrial motions.

DISCUSSION

A. The Special Verdict Form

The trial court utilized a special verdict form which 

required the jury to answer factual questions. “[A] special verdict 

is that by which the jury find the facts only, leaving the judgment 

to the [c]ourt. The special verdict must present the conclusions of 

fact as established by the evidence, and not the evidence to prove 

them; and those conclusions of fact must be so presented as that 

nothing shall remain to the [c]ourt but to draw from them 

conclusions of law.” (§ 624.)

Catwalk claims the trial court erred in denying its posttrial 

motions on the UTSA claims, and that we should reverse the 

judgment, because the special verdict form was “fatally defective” 

in that it did not require the jury to address all the issues 
17

presented by Catwalk’s claims. Catwalk first contends that the 

verdict form should have asked whether Hurt-Watson 

“acquire[d],” “use[d],” or “disclose[d]” any of Catwalk’s trade 

secrets, but the form only asked whether Hurt-Watson had 

“disclose[d]” any trade secrets. It also contends the form “failed 

to ask the jury to determine Heyri J.’s liability at all” because 

the jury was instructed to skip questions about Heyri J. if it 

determined that Hurt-Watson did not disclose any trade secrets.

In the crush of trial, errors can and do happen. What 

occurred here with the special verdict form illustrates that 

reality. The special verdict form given to the jury did not reflect 

agreed-upon edits. Even if those edits had been made, they 

would have been at odds with the agreed-upon jury instructions 

given to the jury. But merely establishing an error occurred is 

not the end of the inquiry. Catwalk was entitled not to a perfect 

trial but to a fair one, because “taking into account the reality of 

the human fallibility of the participants, there can be no such 

thing as an error-free, perfect trial.” (United States v. Hasting

(1983) 461 U.S. 499, 508 [103 S.Ct. 1974, 76 L.Ed.2d 96].) It is 

for such reasons that Article VI, section 13 of the California 

Constitution provides: “No judgment shall be set aside, or new 

trial granted, in any cause, on the ground of misdirection of the 

jury, or of the improper admission or rejection of evidence, or for 

any error as to any matter of pleading, or for any error as to any 

matter of procedure, unless, after an examination of the entire 

cause, including the evidence, the court shall be of the opinion 

that the error complained of has resulted in a miscarriage of 

justice.” This constitutional principle applies to errors in a 

special verdict form. (Rodriguez v. Parivar, Inc. (2022) 83 
18

Cal.App.5th 739, 756 [“A court’s defective special verdict question 

requires reversal if the error results in a miscarriage of justice”].)

As explained below, Catwalk forfeited its challenge to the 

special verdict form by failing to object to any error in the form’s 

language prior to the trial court’s discharge of the jury, and in 

any event the errors here were harmless.

1. Catwalk Forfeited Its Challenge

All counsel approved the special verdict form actually used

by the jury before it was submitted to the jury. It is also 

undisputed that neither Catwalk nor anyone else raised any 

concern about the special verdict form while the jury was 

deliberating, when the form was read aloud after the jury 

reached its verdict, when the jury was polled about its verdict, or 

at any other point before the jury was discharged. In those 

circumstances, Catwalk cannot now claim error.

In Taylor v. Nabors Drilling USA, LP (2014) 222 

Cal.App.4th 1228, the special verdict form erroneously instructed 

the jury to skip some questions relating to the defendant’s 

liability. (Id. at p. 1241.) Our colleagues in Division Six 

concluded the trial court did not err in denying the defendant’s 

JNOV motion on the ground the defense counsel had not objected 

to the defect before the jury was discharged, stating, “ ‘ “Failure 

to object to a verdict before the discharge of a jury and to request 

clarification or further deliberation precludes a party from later 

questioning the validity of that verdict if the alleged defect was 

apparent at the time the verdict was rendered and could have been 

corrected.” [Citation.]’ ” (Id. at p. 1242, quoting Keener v. Jeld–

Wen, Inc. (2009) 46 Cal.4th 247, 263-264.) “Because [the 

defendant] did not object and had expressly approved the 

erroneous verdict form, it forfeited its claim that the special 
19

verdict is defective because the jury did not answer [some] 

questions [relating to liability].” (Id. at pp. 1242-1243; see also

Jenson v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 

131 [affirming denial of motion for new trial because the 

defendant had “waived any objection to the special verdict form 

by failing to object before the court discharged the jury”].)

Catwalk relies on a statement in Saxena v. Goffney (2008) 

159 Cal.App.4th 316 that “courts have declined to apply the 

waiver rule ‘where the record indicates that the failure to object 

was not the result of a desire to reap a “technical advantage” or 

engage in a “litigious strategy.” ’ [Citations.]” (Id. at pp. 327-

328.) The facts here, however, are distinguishable from that 

case. In Saxena, the plaintiffs submitted a special verdict form 

that did not require the jury to find a fact legally necessary to the 

award of certain damages. (Id. at pp. 324-326.) The appellate 

court found the defendant did not waive his objection to the 

special verdict form for purposes of appeal where he did object 

before the trial court that the special verdict form was erroneous, 

“[i]t was [the] plaintiffs’ responsibility to tender their case to the 

jury,” and the defendant was not required to renew his objection 

because “[i]f [the] plaintiffs chose to submit a verdict form 

tendering less than their full case to the jury, [the defendant] had 

no further incentive to object.” (Id. at p. 328.) Here, of course, 

Catwalk was the plaintiff on the UTSA claims at issue, bore the 

responsibility to tender its claims to the jury, and did not object 

to the special verdict form until after the jury was discharged.

Catwalk had two clear opportunities to object. The first

was when the court circulated the special verdict form before it 

was presented to the jury. Catwalk argues without any record 

support that its counsel was given only “moments” to review the 
20

form before it was to be presented to the jury. What the record in 

fact shows is that Catwalk’s counsel had sufficient time to notice

certain corrections that needed to be made and notified the court

about them. Moreover, counsel did not inform the court he did

not have enough time to review the form, nor did he request 

additional time. Instead, when the court asked counsel if he was 

“happy with the final version of the verdict form,” counsel 

responded, “Very happy, your Honor.” While it does appear that 

the final form did not conform with what the parties had agreed 

to earlier that day, we would expect counsel to review those 

portions of the form the parties had discussed to verify that

agreed-upon corrections were made and to notice that they had 

not.

The second clear opportunity for Catwalk to object was 

when the jury’s verdict was announced in court. The clerk read 

the special verdict aloud (such that any missing verbiage would 

have been apparent) and, after the jury was polled on each 

question it answered, the court asked Catwalk’s counsel, 

“anything further that you’re requesting with the jury present,” 

to which he responded, “Nothing.” The jury was then discharged. 

Under these circumstances, the failure to object before the jury 

was discharged forfeits Catwalk’s appellate challenge to the 

special verdict form.

2. There Was No Miscarriage of Justice Requiring 

Reversal

Even if the claim of error was not forfeited, any deficiencies 

in the special verdict form were harmless. “[A] defective special 

verdict form is subject to harmless error analysis.” (Taylor v. 

Nabors Drilling USA, LP, supra, 222 Cal.App.4th at p. 1233.) We 

review for a miscarriage of justice, which “has occurred if, upon 
21

our examination of the entire cause, including the evidence, we 

conclude ‘ “it is reasonably probable that a result more favorable 

to the appealing party would have been reached in the absence of 

the error.” ’ [Citation.]” (Rodriguez v. Parivar, supra, 83 

Cal.App.5th at pp. 756-757.) The Supreme Court has “ ‘made 

clear that a “probability” in this context does not mean more 

likely than not, but merely a reasonable chance, more than an

abstract possibility.’ [Citation.]” (Cassim v. Allstate Ins. Co.

(2004) 33 Cal.4th 780, 800.)9

The jury found that the only trade secret Catwalk had 

established was its W.I.P. database. Hurt-Watson indisputably 

had access to the database while at Catwalk and was familiar 

with facts in it from her work as a sales representative. There 

was no evidence Hurt-Watson took that database with her when 

she left the company, and the jury instructions by design did not 

include the specific instruction, CACI No. 4045, about whether 

Hurt-Watson improperly “acquired” trade secrets. The omission 

of the “acquired” prong from the special verdict form as to HurtWatson was therefore not only harmless but appropriate given 

the parties’ agreement not to give a jury instruction on that issue 

as to Hurt-Watson.

We further conclude that, given the jury’s unanimous

finding that Hurt-Watson did not “disclose” the trade secrets in 

the W.I.P. database, there was no reasonable chance it would 

9 We reject Catwalk’s assertion that de novo review applies. 

The de novo standard applies to review of potentially ambiguous 

or inconsistent verdicts (e.g., Zagami, Inc. v. James A. Crone, Inc.

(2008) 160 Cal.App.4th 1083, 1091-1092; City of San Diego v. 

D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 

668, 678) and not to errors in the form itself.
22

have found that Hurt-Watson “use[d]” those trade secrets. 

Catwalk’s theory of misappropriation was that Hurt-Watson 

disclosed Catwalk’s designs to Heyri J., which copied the designs 

to produce its own garments. In particular, Catwalk’s case rested 

on its claim that Heyri J. had copied four specific styles using 

information from the W.I.P. database. Given that any such “use” 

could have come only after the alleged “disclosure” to Heyri J. of 

information from Hurt-Watson, we perceive no reasonable chance 

the jury would have found “use” when it found no “disclosure” of 

that information to Heyri J. in the first place. Furthermore, 

Catwalk did not claim that Hurt-Watson had improperly “used” 

information from the W.I.P. database other than to disclose it to 

Heyri J., nor was there any evidence adduced to support such a 

claim.

Similarly, given the jury’s finding that Hurt-Watson had 

not disclosed the trade secrets in the W.I.P. database, there was 

no reasonable chance the jury would have found that Heyri J. 

acquired, disclosed, or used those trade secrets. There was no 

evidence adduced at trial showing that Heyri J. could have 

known about information from the W.I.P. database (which it 

would have needed to do to acquire, disclose, or use that 

information) other than by obtaining it from Hurt-Watson. The 

errors in the special verdict form were therefore harmless.10

10 Because we find any errors with the special verdict form 

harmless, we need not address Catwalk’s argument that the trial 

court improperly concluded Catwalk failed to support its new 

trial motion related to the special verdict form with affidavits 

under section 658.
23

B. Hurt-Watson’s Claim for Unpaid Commissions

Catwalk next contends that the trial court erred in denying 

its motions for new trial and for JNOV as to Hurt-Watson’s claim 

for unpaid commissions.

1. Standard of Review

“A trial court may grant a motion for [JNOV] only if the 

evidence, viewed most favorably to the prevailing party, is 

insufficient to support the verdict.” (Markow v. Rosner (2016) 3

Cal.App.5th 1027, 1044-1045.) “ ‘On appeal from the denial of a

JNOV motion, an appellate court must review the record de novo 

and make an independent determination whether there is any 

substantial evidence to support the jury’s findings. [Citations.]’ 

[Citation.]” (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 514, 

fn. 7.) “The denial of a new trial motion is reviewed for an abuse 

of discretion, except that a trial court’s factual determinations are 

reviewed under the substantial evidence test.” (Ibid.)

11

11 Hurt-Watson contends that we should affirm the trial 

court’s rulings on the motions for JNOV and a new trial on the 

ground Catwalk failed to submit evidence to the trial in support 

of its motions. Catwalk did not submit any trial transcripts or 

copies of exhibits in support of its motions, and the trial court 

denied the motions on that ground, among others. However, 

given that our review of the denial of the JNOV motion is de novo 

and we must make an independent determination on the 

substantial evidence question (Minnegren v. Nozar, supra, 4 

Cal.App.5th at p. 514, fn. 7), the alleged inadequacy in the 

separate new trial motion on the same issue does not thwart our 

obligation to address Catwalk’s sufficiency arguments based on 

the record on appeal, including the trial transcript and the trial 

exhibits.
24

“In reviewing the sufficiency of evidence to support the 

jury’s finding, we review the record in the light most favorable to 

the prevailing party, resolving in favor of the prevailing party all 

conflicts in either the evidence or the reasonable inferences to be 

drawn therefrom, to determine whether the record contains 

substantial evidence, contradicted or uncontradicted, supporting 

the finding. [Citations.] ‘ “Substantial evidence” is evidence of 

ponderable legal significance, evidence that is reasonable, 

credible and of solid value.’ [Citation.] ‘The focus is on the 

quality, rather than the quantity, of the evidence.’ [Citation.] 

‘Inferences may constitute substantial evidence, but they must be 

the product of logic and reason. Speculation or conjecture alone 

is not substantial evidence.’ [Citation.] ‘The ultimate test is 

whether it is reasonable for a trier of fact to make the ruling in 

question in light of the whole record.’ [Citation.] The testimony 

of a single witness may be sufficient. [Citation.]” (Markow v. 

Rosner, supra, 3 Cal.App.5th at p. 1045.)

2. Sufficient Evidence Supported the Jury’s Award to 

Hurt-Watson

In arguing the evidence it owed commissions was 

insufficient, Catwalk focuses on an alleged lack of documentary 

evidence but ignores Hurt-Watson’s testimony at trial. She 

testified that Catwalk owed her $1,110,000 in commissions she 

had earned from 2014 to 2018 and explained how she calculated 

that amount. That testimony provided substantial evidence to 

support the jury’s award of less than half of that amount to her

as damages. Hurt-Watson’s testimony was based in part on a 

Catwalk sales report admitted into evidence, and for sufficiency 

of the evidence purposes her testimony was reasonable, credible 

and of solid value.
25

Catwalk argues there was no competent evidence that this

sales report reflected shipped goods, as opposed to merely ordered 

goods. However, Kang agreed in his testimony that the report at 

issue “reflects sales of Catwalk . . . to . . . all of its vendors.” Kang 

had earlier testified that Catwalk completes a sale “[w]hen the 

goods are . . . shipped out completely.” Furthermore, the jury 

could reasonably infer that Hurt-Watson, who worked as a sales 

representative for Catwalk for over a decade, could interpret 

Catwalk’s sales report.

Catwalk also argues that there was no evidence the report 

“included chargebacks, or excluded orders on which Hurt-Watson 

was not entitled to a commission pursuant to her agreements

with [Catwalk].” However, the jury could reasonably infer that 

Hurt-Watson was aware of any instances where she was not 

entitled to a commission on specific orders and had factored that 

into her calculation. In any event, the jury’s award suggests that 

the jury discounted the amount claimed by Hurt-Watson to 

account for potential chargebacks, excluded orders, and other 

factors that reduced the amount owed.

In addition, the evidence showed that Catwalk did not pay 

Hurt-Watson for commissions she earned based on goods that 

were shipped in February 2018 and the following months. In 

fact, Kang agreed that Catwalk had not paid Hurt-Watson any 

commissions since January 2018. Kang admitted that HurtWatson was entitled to $15,639.89 in commissions for February 

2018 shipments. On April 2, 2018, Catwalk issued a check to 

Hurt-Watson in the amount of $15,639.89, but stopped payment 

on the check. Kang also admitted that Catwalk owed HurtWatson $62,825.60 in commissions for March 2018 that it had not 

paid. Kang attempted to explain that Catwalk had held up these 
26

two payments due to a “pending order,” but Catwalk presented 

no evidence to support this claim nor any explanation how the 

purported “pending order” issue would impact Hurt-Watson’s 

commissions earned on other sales. Furthermore, Hurt-Watson 

denied that this purported issue would impact her commission, 

which provided substantial evidence for the jury to reject 

Catwalk’s explanations for its failure to pay.

“ ‘Where the fact of damages is certain, the amount of 

damages need not be calculated with absolute certainty.

[Citations.] The law requires only that some reasonable basis of 

computation of damages be used, and the damages may be 

computed even if the result reached is an approximation.

[Citation.]’ ” (Sargon Enterprises, Inc. v. University of Southern 

California (2012) 55 Cal.4th 747, 774.) The jury’s award to HurtWatson satisfies this principle. We accordingly reject Catwalk’s 

claim that substantial evidence does not support the jury’s award 

of unpaid commissions to Hurt-Watson.

C. Hurt-Watson’s Claim for Prejudgment Interest

Catwalk’s final claim is that the trial court erred in 

awarding Hurt-Watson prejudgment interest from the time 

Catwalk filed its lawsuit. Catwalk contends that Civil Code 

section 3287, subdivision (b) (section 3287(b)) limited the court to 

starting the accrual of prejudgment interest no earlier than the 

time Hurt-Watson filed her first amended cross-complaint, which 

was the first time she asserted a claim for unpaid commissions. 

We agree with Catwalk that the trial court was limited under 

section 3287(b) to starting prejudgment interest from the date 

Hurt-Watson filed her first amended cross-complaint, but for 

slightly different reasons than those advanced by Catwalk.
27

“We review the trial court’s ruling on prejudgment interest 

under section 3287(b) for abuse of discretion. [Citation.] We will 

uphold the trial court’s exercise of discretion ‘if it is based on a 

“reasoned judgment” and complies with the “. . . legal principles 

and policies appropriate to the particular matter at issue.” ’ 

[Citation.]” (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 

Cal.App.5th 506, 574.) We review questions of law regarding the 

interpretation of section 3287(b) de novo. (Airs Aromatics, LLC v. 

CBL Data Recovery Technologies, Inc. (2020) 50 Cal.App.5th 

1009, 1013.)

Section 3287(b) provides: “Every person who is entitled 

under any judgment to receive damages based upon a cause of 

action in contract where the claim was unliquidated, may also 

recover interest thereon from a date prior to the entry of 

judgment as the court may, in its discretion, fix, but in no event 

earlier than the date the action was filed.”12 “The rationale for 

precluding prejudgment interest on unliquidated claims is ‘that it 

is unreasonable to expect a defendant to pay a debt before he or 

she becomes aware of it or is able to compute its amount.’ 

[Citation.] By allowing the trial court to consider awarding 

prejudgment interest on an unliquidated contractual claim 

within the limits prescribed by the statute, section 3287(b) aims 

12 Civil Code section 3287, subdivision (a) governs the 

award of prejudgment interest where the damages are “certain, 

or capable of being made certain by calculation.” Hurt-Watson 

contends that the trial court’s award of prejudgment here was 

proper under this provision. However, the trial court did not rely 

on this provision, and Hurt-Watson has forfeited this argument 

as she conceded the inapplicability of Civil Code section 3287, 

subdivision (a) in the trial court.
28

‘to balance the concern for fairness to the debtor against the 

concern for full compensation to the wronged party.’ [Citation.]” 

(Hewlett-Packard Co. v. Oracle Corp., supra, 65 Cal.App.5th at 

p. 576.)

The statutory language that the start date for prejudgment 

interest can “in no event [be] earlier than the date the action was 

filed” (§ 3287(b)) is ambiguous. One can read it as the trial court 

did, to refer to the initial pleading in the lawsuit regardless of 

who filed it. Or one can read it, in the case where the breach of 

contract claim is asserted via cross-complaint, to refer to the date 

the cross-complaint was filed. Because the statutory language 

permits more than one reasonable interpretation, we consider 

other aids, such as the statute’s purpose, legislative history, and 

public policy. (Segal v. ASICS America Corp. (2022) 12 Cal.5th 

651, 662.) We also consider the context of the entire statute and 

the statutory scheme of which it is a part to give significance to 

every part of them. (Ibid.)

The legislative history is silent on the definition of “action.” 

The parties instead point to different definitions of “action” in the 

Code of Civil Procedure as supporting their respective 

interpretations of the term. Hurt-Watson relies on section 

411.10, which provides: “A civil action is commenced by filing a 

complaint with the court.” Although Hurt-Watson does not make 

her argument explicit, the inference is presumably that the filing 

of a cross-complaint cannot commence an “action,” only a 

complaint.13 Catwalk relies on section 583.110, subdivision (a), 

13 We note for the sake of completeness that Hurt-Watson 

agreed to prejudgment interest running from the date of her first 

amended cross-complaint in the trial court before the trial court 
29

which defines “action,” for purposes of the chapter in which it is 

located (which governs dismissal for delay in prosecution), to 

“include[ ] an action commenced by [a] cross-complaint.” Catwalk 

also notes our Supreme Court has recognized in other contexts 

that “action” can sometimes refer to proceedings on a crosscomplaint. (E.g., Shepard & Morgan v. Lee & Daniel, Inc. (1982) 

31 Cal.3d 256, 260 [“In prior cases, albeit in other contexts, we 

have deemed that a complaint and cross-complaint are separate

actions”].)

There is an additional definition of “action” in section 22 

which seems to us more informative. Section 22 provides: “An 

action is an ordinary proceeding in a court of justice by which one 

party prosecutes another for the declaration, enforcement, or 

protection of a right, the redress or prevention of a wrong, or the 

punishment of a public offense.” This definition suggests that 

“action” encompasses the claims of one party against another, 

which would suggest that prejudgment interest on Hurt-Watson’s 

contract claim cannot go all the way back to Catwalk’s complaint, 

as that complaint did not assert Catwalk had wronged HurtWatson, but the exact opposite.

Considering these interpretive aids and the statutory 

purpose, we conclude the phrase “the date the action was filed” in 

section 3287(b) refers to the filing of the cross-complaint where 

the cause of action against a cross-defendant which is the basis 

for the prejudgment interest award is asserted by crosscomplaint. This balances the two fundamental concerns at issue 

in section 3287(b)—that the wronged party receive full 

rejected her concession. That, of course, does not preclude her 

from defending the prejudgment interest award on appeal.
30

compensation and “ ‘that it is unreasonable to expect a defendant 

to pay a debt before [it] becomes aware of it or is able to compute 

its amount.’ ” (Hewlett-Packard Co. v. Oracle Corp., supra, 65 

Cal.App.5th at p. 576.) While it is logical to assume that, by 

being sued, a defendant has become aware of a debt owed to the 

plaintiff, that logic does not justify an inference that a plaintiff, 

by suing a defendant, is aware of any unliquidated debt the 

defendant might claim the plaintiff owes or is able to compute its 

amount.

Catwalk attempts to take the interpretation of “action” in 

section 3287(b) a step further. It contends the filing of the 

“action” for purposes of section 3287(b) is not when Hurt-Watson 

first cross-claimed but when she filed her first amended crosscomplaint, because it was in that pleading that she first asserted 

her purported right to contractual damages. We need not 

address the interesting interpretive question of whether the 

initial complaint or cross-complaint must allude to the breach of 

contract claim for purposes of section 3287(b)’s definition of 

“action.” That is because Hurt-Watson’s initial cross-complaint 

was not asserted against Catwalk at all. To the contrary, the 

initial cross-complaint sought only indemnity and declaratory 

relief from fictitiously named cross-defendants. Catwalk was 

first named as a cross-defendant in Hurt-Watson’s first amended 

cross-complaint and was not a party to the cross-complaint before 

that time.14 It was the filing of the first amended cross14 In amending the cross-complaint, Hurt-Watson added 

Catwalk as a cross-defendant and did not substitute Catwalk for 

one of the fictitiously named parties.
31

complaint which therefore initiated Hurt-Watson’s “action” 

against Catwalk, and that governs under the facts here.

In conclusion, under the specific facts of this case, section 

3287(b) limited the trial court to starting the accrual of 

prejudgment interest at the earliest from when Hurt-Watson 

filed her first amended cross-complaint on September 20, 2018. 

Accordingly, we vacate that portion of the judgment awarding 

prejudgment interest “from the date of filing of the Complaint” 

and remand for the trial court to correct the judgment to award 

prejudgment interest “from the date of filing of the First 

Amended Cross-Complaint . . . .”

DISPOSITION

The judgment is remanded with directions to strike that 

portion of the judgment stating prejudgment interest is awarded 

“from the date of filing of the Complaint” and replace it with 

“from the date of filing of the First Amended CrossComplaint . . . .” The judgment and the postjudgment orders are 

otherwise affirmed. Hurt-Watson and Heyri J. are awarded their 

costs on appeal.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J. CHANEY, J.