Filed 2/18/14 CERTIFIED FOR PARTIAL PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

DAVID ASH, as Trustee, etc.,
Plaintiff and Appellant,

v.
NORTH AMERICAN TITLE COMPANY,
Defendant and Appellant;
RICHARD LERNER, as Trustee, etc.,
Defendant and Respondent. B237404
(Los Angeles County Super. Ct. No. YC059517)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, J. Stephen Czuleger an d William G. Willett, Judges. Affirmed in part and reversed in part
and remanded. Samuels, Green & Steel, Orlando F. Caba nday and Frederick H. Choi for Plaintiff and Appellant David Ash, as Trustee. Richard D. Marks Professional Corpora tion, Richard D. Marks; Garrett & Tully, Ryan C. Squire and Tammy Chow Weaver fo r Defendant and Appellant North American Title Company. Callahan, Thompson, Sherman & Caudill, Robert W. Thompson and George N. Koumbis for Defendant and Responde nt Richard Lerner, as Trustee.

 Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of part D of the Discussion.2 INTRODUCTION Defendant, a seller of real property, breac hed the real estate sales contract with plaintiff, the buyer, by causing the closing of th e escrow to be delayed so that it did not close on the agreed-upon Friday se t forth in the contract. The sale was part of an Internal Revenue Code (Title 26) section 1031 (secti on 1031) transaction to defer the buyer’s capital gain tax on the buyer’s sale of a nother property. The buyer had the money payable on his sale of the other property depo sited in a segregated account with a section 1031 qualified exchange intermed iary (section 1031 intermediary). 1 On the Monday after the sale had been scheduled to close, the sect ion 1031 intermediary closed and then filed for bankruptcy. The bankruptc y court did not release the bu yer’s money until after it was too late legally to qualify for de ferral of taxes under section 1031. A jury found the seller and the escrow company at fault for the escrow not closing on time—i.e., on Friday—and awarded the buyer damages against the seller for the delay, including the loss of the tax be nefits. The jury also found the escrow company liable for breach of fiduciary duty and awarded the buyer damages agai nst the escrow company for losses resulting from the delay in the closing of escrow. We reverse in part because, as discu ssed in the published portion of the opinion, (a) there was insufficien t evidence the contract damages a ssessed against the seller based on the bankruptcy were foreseeable and (b), as to the escrow company, the trial court failed to instruct the jury on an intervening and superseding cause—the bankruptcy.

1 See Department of Treasury Internal Revenue Service Regulations: IRC section 1031, “Definition of Qualifie d Intermediary,” Preamble to Regulations: Deferred Exchange R.23; section 1.1031(k)-1(g)(4) R.34.3 FACTUAL BACKGROUND 2
Plaintiff David Ash as trust ee of the David Ash Trust (Ash), in connection with his
sale of commercial real estate that realized a taxable gain, desired to defer the capital gain
tax under section 1031 3 by purchasing commercial prope rty from defendant Lerner. 4 On October 8, 2008, Ash and Lern er entered into an agreemen t by which Lerner agreed to sell to Ash commercial property. Defendant North American Title Company (NAT) was
selected to be the escrow company for the purchase, for which escrow opened shortly thereafter, and was scheduled to close on November 21, 2008—the “expected closing
date.” Ash was in the real estate business, and, after talking to differe nt brokers, selected LandAmerica Exchange Services (LandAmerica) to receive proceeds from the sale of his property in order to co mply with section 1031. 5 When he entered into the agreement

2 We do not state in detail the facts c oncerning the liabilit y of the defendants because the issues in the pu blished portion of this opinion involve damages and jury instructions.

3 “Under section 1031, no taxable gain or loss is recognized on the exchange of properties of like kind if both the property su rrendered and the property received are held either ‘for productive use in a trade or business or for investment.’ (26 U.S.C. § 1031(a)(1).) This section ‘allows taxpayers with profitable real estate investments to swap them for other real es tate without paying tax.’ (2 Greenwald & Asimow, Cal. Practice Guide: Real Property Transactions (The Rutter Group 2009) ¶ 13:305.1, p. 13- 58 (rev. #1, 2009).” ( Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1140, fn. 5.)

4 The defendants were Richard and Gloria Lerner, as trustees of the Exemption Trust of the Lerner Family Trust dated No vember 17, 1986. Also referred to as defendants and owners of the property are Ri chard and Gloria Lerner , as trustees of the Ray Learner Irrevocable Trust dated December 30, 1992. Th ey are collectively referred to as Lerner.

5 Ash originally said he was going to use TIMCOR as an intermediary, “and I think WAMU [Washington Mutual] bo ught them or something happ ened, and both of them disappeared or went bankrupt or something. . . . I’m not sure if they went out of business or if they were bought out by Washington Mutual and then Washington Mutual closed them down and then went out of business. But somehow, it was all lumped together, from what I know, or what I was told.”4 with LandAmerica, he had no concerns a bout its “financial viability.” He chose LandAmerica based on “the opinion of the [p ]eople [he] spoke to ab out it.” When asked if he was “scared to lose [his] money if he go t into a 1031 exchange,” he responded “no.”
Ash was told LandAmerica had various br anches and was part of LandAmerica
Commercial Services. Ash had used LandAm erica for another replacement property. At some point during the escrow period after the purchase and escrow agreements were executed, Ash had concerns , “I was afraid of the whole industry everywhere . . . the banking system was, like, collapsing at the time. So -- I also needed income. So I wanted to do something as quick as possible to get my income and also to be protected.”
He had nevertheless chosen to use LandAmerica, signing the papers on November 13, 2008, over a month after escrow opened, a lthough the paperwork with LandAmerica was dated as of October 9, 2008. He later said th at near the closing date he was worried about his money because he wanted th e income: “I wanted to get it done.” Ash had told NAT
that he needed the income fro m the property he purchased to have the escrow completed
because he wanted to have hi s funds safely reinvested. As h never said he was concerned at any time specifically about the fi nancial condition of LandAmerica. Under section 1031, in order to defer paying the capital gains tax on the sale of his other property, Ash was required to close his tr ansaction with Lerner within 180 days of the sale of Ash’s property. 6 Ash had the proceeds from the sale of his property on which the escrow had closed deposite d with LandAmerica, using an account at Citibank. This was a segregated account that paid a lower in terest rate than an account that pooled money from other investors. Ash verified th at the funds were in the Citibank account. Neither Lerner nor NAT had any involvemen t with the selection of LandAmerica. As noted, the escrow was to close on Friday, November 21, 2008, but it was anticipated

6 The property being purchased must be id entified within 45 days after the sale, and the purchase must take place w ithin 180 days of the sale. (Title 26 U.S.C. § 1031(a)(3).) Up to three potential properties may be id entified. (Title 26 U.S.C. § 1031(a)(3).) Section 1031 can be simply a deferral of the cap ital gains tax if the taxpayer later sells the property he or she acquired.5 by both defendants that the escrow would take a few more days to close. When so informed, Ash responded, “no problem do I get a discount[  ] (jk) [just kidding]. Thank you!!” Ash’s response expressed no concer n about the status of LandAmerica. On Monday, November 24, 2008, LandAmeric a froze all of its accounts, including segregated accounts, and then filed for bankruptcy.
Ash’s real estate broker was aware of La ndAmerica and the number of people who used it. He believed it was a “very substa ntial company” and a “very large company” and knew of its affiliated companies. He said he told Ash it was a reputable company.
Ash’s broker said he too was “shocked” and “everybody was shocked” when
LandAmerica closed its doors. Ash had ex pressed no concerns to Lerner or to NAT about the financial solvency of LandAmerica. The escr ow officer at NAT who had
worked with LandAmerica had no concerns about the solven cy of LandAmerica prior to the bankruptcy. She said she was “shocked” upon hearing LandAmerica had closed. Ash’s expert, who once worked for La ndAmerica, said it was “unusual,” “alarming,” and “unique” that LandAmerica closed its doors. She added that escrow holders would not get information about ru mors concerning a s ection 1031 qualified intermediary, and if they did, they would not necessarily info rm the principals to escrow
accounts of such rumors. Sh e could not say that any such rumors about LandAmerica were generally known by people in the real estate industry in Southern California. There is no evidence that Ash, and more importan tly defendants, were aware of any such
rumors about LandAmerica. The real estate agents involved, in addition to the escrow officer for NAT, said they were “shoc ked” and surprised about LandAmerica’s bankruptcy. A LandAmerica employee handling the matter said she ha d been involved in 5000 or more section 1031 exchanges and apparently had no warning of an impending LandAmerica bankruptcy. That LandAmer ica employee said, “There was never any
doubt until 9:00 a.m. on the mo rning of November 24 [the date the business closed] that the money would be available. ” She added that the event was so traumatic that it was
even worse than the death of her father—“ worse than anything”; “absolutely beyond description.” She added, “everybody [at La ndAmerica] was very angry and couldn’t6 understand how it could happe n.” Another LandAmerica employee said she had no awareness of any financial problems with LandAmerica. Ash’s real estate agent, who had been in the industry for more than 35 years and involved with section 1031 exchanges, said this was the first one in wh ich a qualified intermedia ry failed to fund the

escrow. 7 Despite Ash’s hopes and the fact that the money was in a se gregated account, the bankruptcy court refused to allow depositors, including As h, to have access to their deposited monies.
Ash did not cancel the transaction becaus e he was concerned he might lose his deposits and would be unable to complete th e tax-deferred exchange. He continued to pay interest on the bank loan he had take n out to purchase the property without the income from the property to us e for loan payments. The bank required Ash to repay the
loan after five months because there was no d eed of trust recorded to secure the loan. Without income from the pr operty, he was required to borrow money from his mother.
He also needed to hire an attorney to attemp t to convince the bankruptcy court to release his money in order to complete the transaction.
The escrow did not close until March 2010 , after the bankruptcy court finally released Ash’s funds. The closing of escrow was too late for Ash to obtain the section 1031 tax deferral of his capital gain taxes. 8

7 LandAmerica apparently failed because it invested its funds in auction rate securities, the market for which collapsed in February of 2008. (See Funk, So You Thought Your Proceed s Belong To You? The Interplay Between Like-Kind Exchanges Under the Tax and Bankruptcy Codes (2011) 25 No. 2 Prac. Tax Law 43, 50-51 (Funk). The Chief Operating Officer of LandAmerica told “everybody how gr eat everything was . . . and that he had no idea there was a bankruptcy imminent.” He added that the “mother company” “had promised to, if necessary, buy those securities to make the accommodator [1031 interm ediary] liquid.” He also said that the “mother company” had guaranteed the accommodator funds.

8 Ash, nevertheless, on his tax return trea ted his sale of property as nontaxable, and then later amended the retu rn to show the gain.7 As a result of the delayed escrow and th e delay in recovering his funds resulting from the bankruptcy, Ash sued Lerner and NAT for damages, including Ash’s legal expenses of $140,000 incurred in the bankruptcy pr oceeding and tax liability of $465,000
due to the failure of the section 1031 exch ange. Additionally, As h claimed $166,000 in income from the property if the sale had be en timely completed, payments to the lender of $42,000, $189,000 paid for a new loan above what he would have paid for the original
loan that was terminated by the original lender, and $28,00 0 of interest on a loan to meet expenses. These direct damages totaled $1,033,000. 9 Ash also sought indirect damages of $1 million attributed to his loss of cash flow to retain and purchase properties.
Defendants’ made motions for nonsuit based on a lack of causation and the defense of intervening and su perseding cause. The trial court denied the motions and refused to give defendants’ proposed in structions on causati on and intervening/ superseding cause. The jury returned its verdic t finding that Lerner breach ed its contract by delaying the timely close of escrow, and was liable to Ash for $300,000, a nd that NAT breached its contract with Ash to provide proper an d timely escrow and title services and was liable for $250,000 in contract damages. The jury also found that NAT was liable for negligence in the amount of $500,000 and for $250,000 for breach of fiduciary duty. The jury imposed punitive damages on NAT in the amount of $750,000. The trial court granted NAT’s motion for judg ment notwithstanding the verdict as to the punitive damage award, but otherwise denied the motions for new trial and judgment notwithstanding the verdict. Lerner and NAT timely appealed. Ash cross-appealed in
connection with th e punitive damages.

9 The $3,000 discrepancy is due to round ing off some figures by the expert.8 DISCUSSION

A. Standard of Review

The determinations of whether there was a breach of contract and whether the contract damages are foreseeable are questions of fact ( Plut v. Fireman’s Fund Ins. Co. (2000) 85 Cal.App.4th 98, 105-106; Sun-Maid Raisin Growers v. Victor Packing Co. (1983) 146 Cal.App.3d 787, 790; Porter v. Arthur Murray, Inc. (1967) 249 Cal.App.2d 410, 421;) and are governed by the substantial evidence test ( Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 955-956; Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968)—i.e. whether there is substantial evidence to support the fi ndings of the trier of fact. “‘Substantial evidence . . . is not synonymous with “any” evidence. Instead , it is “‘substantial proof of
the essentials which the law re quires.’”’ [Citation.]” ( Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) We view th e evidence in the light most favorable to the prevailing party and draw all reasonable in ferences and resolve all conflicts in its favor. ( Hub City Solid Waste Services , Inc. v. City of Compton (2010) 186 Cal.App.4th 1114, 1128-1129.) Regarding wh ether the failure to give an instruction on intervening and superseding cause was error, we use the de novo standard of review. ( Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1500.)

B. Damages Against Lerner and NAT for Breach of Contract—Forseeability

“Contract damages are generally limited to those within the contemplation of the parties when the contract was entered into or at least reas onably foreseeable by them at that time; consequential damages beyond th e expectations of the parties are not recoverable. [¶] In contrast, tort damage s are awarded to compensate the victim for injury suffered. [Citation.] ‘F or the breach of an obligati on not arising from contract, the9 measure of damages . . . is the amount wh ich will compensate fo r all the detriment proximately caused thereby, whether it could ha ve been anticipated or not.’ (Civ. Code, § 3333.)” ( Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515-516.)
The court in Lewis Jorge Construction Managem ent, Inc. v. Pomona Unified
School Dist. (2004) 34 Cal. 4th 960, 969 ( Lewis Jorge ) discussed this principle, pointing
out that California follows the common law rule set forth by an English court in Hadley
v. Baxendale (1854) 156 Eng.Rep. 145. In that venerabl e English case, a shaft in Hadley’s mill broke rendering th e mill inoperable. Hadley contracted with Baxendale to transport the shaft to an engineer to make a duplicate. Hadley told Baxendale the shaft should be sent immediately, and Baxendale promised to have it delivered the next day.
Baxendale did not know the mill would be inope rable until the new shaft arrived.
Baxendale did not trans port the shaft in the promised tim e, causing the mill to be shut down for an additional five days. Hadley su ed, inter alia, for lost profits resulting from the delay. The court held that although a pl aintiff is entitled to an amount that will place it in the same position it would have been had the breaching part y performed, damages for special circumstances, such as in that case, can be assessed against the breaching party only when they were within the contemplation of both parties as a probable consequence of a breach. Baxe ndale did not know that the mill would be shut down and
would remain shut until the new shaft arrive d. Loss of profits could not fairly or reasonably have been contemplated by both parties without Hadley having communicated the special circumstances to Baxendale. Thus, the court, in reversing the judgment, held that lost profits c ould not be awarded to Hadley. ( Id. at p. 152.)
The court in Lewis Jorge , supra , 34 Cal.4th at pages 969 through 970 added,

“ Hadley did not expressly distinguish between ge neral and special damages. But such a distinction flows naturally from that case; henc e the rule that a party assumes the risk of special damages liability for u nusual losses arising from speci al circumstances only if it was ‘advised of the facts concerning special harm which might result’ from breach—it is
not deemed to have assumed such additional risk, however, simply by entering into the10 contract. [Citations.] [¶] The Hadley rule has long been app lied by California courts, which view it as having been incorporated into California Civil Code section 3300’s definition of the damages available for breac h of a contract. [Citations.] Contract damages, unlike damages in tort (Civ. Code, § 3333), do not permit recovery for unanticipated injury. [Citation. ] Parties may voluntarily assu me the risk of liability for unusual losses, but to do so they must be to ld, at the time the contract is made, of any special harm likely to result fro m a breach [citations]. Altern atively, the nature of the
contract or the circumstances in which it is made may compel the inference that the defendant should have contempl ated the fact that such a loss would be ‘the probable result’ of the defendant’s breach. [Citation. ] Not recoverable as special damages are those ‘beyond the expectations of the parties .’ [Citation.] Special damages for breach of
contract are limited to losses that were e ither actually foreseen [citation] or were ‘reasonably foreseeable’ when the contra ct was formed. [Citation.]” (See Erlich v.
Menezes (1999) 21 Cal.4th 543, 550; Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 760 [special damages not foreseeable as a matter of law]; see also California Press Mfg. Co. v. Stafford Packing Co. (1923) 192 Cal. 479, 483.) In III Farnsworth on Contracts (3d ed. 2004) section 12.14, pages 260 to 262 (Farnsworth), the
author sets forth the criteria fo r foreseeability in part as follo ws: “foreseeability is to be determined as of the time of the making of the contract”; “what must be foreseeable is only that the loss would result if the breach occurred”; “it is foreseeability only by the party in breach that is determinative”; “f oreseeability has an objective character”; and “the loss need only have been foreseeable as a probable, as opposed to a necessary or certain, result of the breach.” The instant case is governed by the Hadley v. Baxendale, supra, 156 Eng.Rep. 145 principle adopted by our Supreme Court. To the extent any part of the $250,000 of damages for the breaches of contract by Lern er and NAT is attributable to expenses incurred in connection with the bankruptcy and th e loss of the deferral of the capital gains tax, such damages are not general damages, i.e ., those “‘which, in the ordinary course of things, would be likely to re sult’” from the breach (Civ. Code, § 3300) and which “flow11 directly and necessarily from a breach of c ontract, or that are a natural result of a breach” and are within the contemplation of the parties. ( Lewis Jorge, supra, 34 Cal.4th at p. 968.) Rather, they “are secondary or derivative losses arising from circumstances that are particular to the contract or to the parties.” ( Ibid .) These “[s]pecial damages are recoverable if the special or particular circ umstances from which they arise were actually communicated to or known by th e breaching party (a subjectiv e test) or were matters of which the breaching party should have been aware at the tim e of contracting (an objective test).” ( Id. at pp. 968-969.) Moreover, “[s]pecial damages ‘will not be presumed from the mere breach’ but represent loss that ‘occur red by reason of inju ries following from’ the breach. [Citation.]” ( Id. at p. 969.) Because counsels’ arguments to the jury are not evidence, we look to the testimony of the witnesses and the documents introduced as exhibits to assess the foreseeability of the bankruptcy. There is no evidence in th e record that Ash
communicated to Lerner or NAT at the time of contracting—the relevant time—or at anytime, that the bankruptcy of LandAmeric a and indefinite freezing of segregated accounts could result from a short but untimely de lay in the escrow closing. There is no evidence in the record, expert or otherwise, that Lerner or NAT knew or should have known of this risk at the time of contracting or anytime. The transaction in issue took place in the fall of 2008, during an economic recession. Evidence of the various events that allegedly took place durin g 2008 and their timi ng is not in the record. There is no
evidence as to what facts Lerner or NAT knew concerning those events. Whatever Ash’s apprehensions were are irrelevant. Only th e communications to or knowledge of Lerner and NAT are relevant to foreseeability. Ash, even though ostensibly risk averse, having been in the real estate business and having consulted others in the business, chose the 1031 exchange intermediary and purportedly protected himself by having th e proceeds of his sale deposited in a segregated account. There is not substan tial, if any, evidence that under these circumstances, Ash was aware of any risk to th e funds he placed in a segregated account,
much less that he communicated any such risk to Lerner or NAT or that Lerner or NAT12 should have known of any such risk. That Ash was not aware of any risk supports the position that neither Lerner nor NAT was awar e or should have been aware of any such
risk at the time of the contract. The real estate brokers and agents involv ed, an escrow expert, and a LandAmerica employee, all testified that th ey did not foresee any risk to the funds deposited with LandAmerica. Ash’s damages expert stated that what occurred is “a fairly rare occurrence” and is “fairly unusual.” Again, this evidence dispels any notion that Lerner
or NAT were or should have fo reseen the risk of bankruptcy. Lerner just wanted to sell his property, and NAT was just the escrow company. Presumably, it did not matter to Lerner or NAT whether the sale was part of a section 1031 exchange, other than the exchange was what motivat ed the buyer, Ash. To suggest that Lerner and NAT should have known of the risk is speculation and not based on any evidence. Th ere is no evidence that the par ties to the transaction were concerned that the economy or other institutional failures cr eated a risk to the funds placed in a segregated account with LandAmerica. The evidence does not show that LandAmerica was part of purported banking sy stem problems of which Ash was aware.
He had used LandAmerica for escrow and othe r services before. There is nothing in the record or even argued by Ash concerning the precise nature of economic conditions at the time of the contract and how they might have impacted a section 1031 qualified intermediary such as LandAmerica, which is not a bank. There was no evidence that
Lerner and NAT knew or should have known at the time of co ntracting that if the escrow did not close in time, the section 1031 qualif ied intermediary select ed by Ash would or could go bankrupt or that Ash would or might not be able to recove r his funds in time to qualify for a tax deferral. The papers appoin ting LandAmerica to serve as a section 1031 intermediary were signed over a month afte r the escrow opened. Thus, defendants did not contemplate the LandAm erica bankruptcy or the consequences thereof.
That there is no evidence in the record that at the time of the contracts the bankruptcy of LandAmerica was reasonably fo reseeable by any of the participants—most importantly, Lerner and NAT—is consistent with the general view that bankruptcies13 normally are not within the contemplation of the parties at the time of a contract. (See Fiduciary Trust Co. v. Bing ham Dana & Gould & Others (2003) 789 N. E.2d 171, 178 [“plaintiffs offered nothing to refute or even to suggest Gaston’s bankruptcy was reasonably foreseeable . . . at the tim e” of defendant’s al leged malpractice]; Martin Marietta Corp. v. Fire man’s Fund Ins. Co. (4th Cir. 1988) 852 F.2d 566, 570 [“financial ruin of an apparently sound company is not normally a foreseeable consequence of those acts”]; Held Construction Co. v. Michi gan National Bank of Detroit (Mich.App. 1983) 335 N.W.2d 8, 10; In re Construction Diversification, Inc. (D.C. Mich. 1983) 36 B.R. 434, 439 [bankruptcy damages not recoverabl e in breach of contract action absent bad faith]; Howard v. Nicholson (Mo.App. 1977) 556 S.W.2d 477, 483 [“While the possibility of bankruptcy of businesses in general is a foreseeable and all-too-frequent occurrence, the future bankruptcy of a particular comp any, the continuing existence of which was essential to comple te the entire transaction, was not reasonably within the contemplation of the parties at the time of contracting such that the parties would have made provision for such an event”].) 10 As stated in one aut horitative work, “[u]nless financial ruin is a consequence arising na turally from a breach of contract, damages sought by the nonbreaching party for financia l ruin are not recoverable unless a risk of insolvency was with in the actual contemplation of the pa rties at the time the contract was made.” (Henshaw and Kempflen, 7 Mich . Civ. Jur. Damages (2013) § 77.) There are certain situations, unlike th e one here, in which a bankruptcy is
foreseeable if there is a breach of contract . For example, when a health maintenance organization improperly terminates a contract with a healthcare provider, it can expect dire financial consequences will arise for the latter. (See In re Doctors Health, Inc. v. Nylcare Health Plans of the Mid-Atlantic, Inc. (D.Md. 2005) 335 B.R. 95, 121.) If the breaching party breaches a contract to purchase stock when he knows of the other party’s desperate financial need to sell the stock, a bankruptcy might be considered foreseeable. (See Hallmark v. Hand (Tex.App. 1992) 833 S.W.2d 603 , 612.) When an insurer

10 These cases appear to have decided the i ssue of foreseeability as a matter of law.14 wrongfully refuses to pay a claim, the adverse financial consequences can be foreseeable. (Cf. Reichert v. General Ins. Co. of America (1968) 68 Cal.2d 822 [i ssue not reached].) Here, there was no evidence the parties consid ered the bankruptcy of LandAmerica to be a foreseeable consequence of any delay. As noted, Ash deposited the sums in a segregated account with the understanding they would be safe. If he thought they were safe, there was no reason to conclude th at defendants nevertheless should have contemplated that the deposit was unsafe. Also, there was no evidence that Lerner or NAT had any knowledge at the time of contracting of the possibility that a bankrupt cy judge for such a le ngthy period of time would not release the money in a segregated account. Indeed, under the circumstances, it
was unforeseeable that a bankruptcy court would not release the funds in an account, especially in a segregated account, in time to meet th e requirements for a tax free exchange. (See Funk, supra, 25 No. 2 Prac. Tax Law 43; Roth et al., Committee Educational Session: Bankruptcy Taxation/Re al Estate Lessons from LandAmerica: Who Has My Money? The Unexpected Perils of § 541, Dec. 1, 20 11 American Bankruptcy Institute 449 [“Outrage and Acrimony over the Court’s decision [in the LandAmerica case]”]; Siegel v. Boston ( In re Sale Guar. Corp. ) (9th Cir. 1998) 220 B. R. 660, aff’d (9th Cir. 2000) 199 F.3d 1375 [funds deposited in a separate trust account of qualified intermediary are not property of the bankru ptcy estate].) More over, there was no
evidence that defendants at the time of the contracts had knowledge that Ash would incur expenses related to the bankruptcy. As stated in Williston on Contracts, “If th e contract is silent with respect to the risks the defendant has assumed, the court w ill determine what risks were foreseen or foreseeable when the contract was made by viewing the matter in the light of common sense; and the courts will consider the na ture and purpose of the contract, and the surrounding circumstances known by the parties to exist at that time, as well as what the breaching party may reasonably be supposed to have a ssumed consciously.” (24 Williston on Contracts (4th ed . 2013) § 64.13.) Because th ere was no evidence that the bankruptcy and bankruptcy judges’s refusal to release funds in a segregated account15 were, at the time of the contracts, within the contemplation of the Lerner and NAT or that at those times they should have contemplat ed the probability of th e result, the damages arising from those events were not foreseea ble for purposes of awarding contract damages. Accordingly, the trial court should redu ce the contract damages judgment against Lerner and NAT by amounts attributable to the bankruptcy and bankruptcy court’s delay in releasing the deposited funds. The matte r is remanded for determination of damages not attributable to the bankruptcy, including the legal fees in that proceeding and the bankruptcy court’s delay in releasing the funds.

C. Intervening and Superseding Cause
The defendants invoked the tort defense of intervening and superseding cause, but
the trial court refused to instruct the jury on those defenses. A principle in tort law is that when “subsequent to the defendant’s neglig ent act, an independ ent intervening force actively operates to produce th e injury, the chain of causation may be broken. It is usually said that if the risk of injury might have been reasonably foreseen, the defendant is liable, but that if the independent interven ing act is highly unusual or extraordinary, not reasonably likely to happen and he nce not foreseeable, it is a superseding cause , and the defendant is not liable.” (6 Witkin, Summary of Cal. Law (10th ed 2005) Torts § 1197, p. 574 and case cited therein.) The Restatement Second of Torts distingu ishes between “superseding cause” and “intervening force.” The Restatement Second of Torts, section 440, provides that “a superseding cause is an act of a third pers on or other force whic h by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” The Restatement Second of Torts, section 441, subdivision (1) states, “An inte rvening force is one which ac tively operates in producing harm to another after the actor’s negligent act or omission has been committed.” Another authority states, “An interveni ng act is regarded as a supers eding cause when it is outside the scope of the risk the defendant negligently created. This idea is usually expressed in16 shorthand by saying that if the intervening ac t is itself unforeseeable then it may become a superseding cause.” (1 Dobbs et al., The Law of Torts (2d ed. 2013) § 212, p. 741 (Dobbs).) A superseding cause relieves a defendant from tort liability for a plaintiff’s injuries, if both the intervenin g act and the results of the ac t are not foreseeable. “[W]hat is required to be foreseeable is the general character of the event or harm . . . not its precise nature or manner of occurrence.” ( Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57-58.) “Whether an intervenin g force is superseding or not generally presents a question of fact, but becomes a matter of law where only one reasonable conclusion may be reached. [Citation.]” ( Chanda v. Federal Home Loans Corp. (2013) 215 Cal.App.4th 746, 756; see also Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 680- 681.) The defense of intervening an d superseding cause applies in tort cases. In contract cases, the defense does not absolve the defend ant of liability, although closely related is the principle that if the special damages ar e not foreseeable and proximately caused by the breach of contract they are not recoverable. 11 As one authority has noted, “Breach may not be precluded, however, by the presen ce of other contribu ting causes—multiple or intervening. Although the injured party’s own failure to avoid loss may bar recovery for that loss, this is not thou ght of as a consequence of a re quirement of causation but of a limitation under a ‘mitigation’ rule.” (III Farnsworth, supra, at § 12.1, p. 151, fns. omitted.) Thus, the Lerners cannot invoke the defense of intervening and superseding cause applicable to torts because no tort claims were asserted against them. 12

11 See VerSteeg, Perspectives on Foreseeability in th e Law of Contracts and Torts: The Relationship Between “Intervening Causes ” and “Impossibility” (2011) 2011 Mich. St. L.Rev. 1497, 1510 (“The Co ntract doctrine that we typically label as ‘impossibility, impracticability, frustration of purpose,’ or, as the Uniform Commercial Code refers to it, ‘failure of presupposed conditions,’ and the Tort doctrine of ‘inter vening and superseding causes’ are actually one and the same”).

12 See Schneider, Consequential Damages in the In ternational Sale of Goods: Analysis of Two Decisions (1995) 16 U. Pa. J. Int’l Bus. L. 615, § 2.2.4.1, fn. 74 (“When17 Ash contends that the claims against NAT include an intentional tort, and therefore the intervening and su perseding act doctrine does not apply, as it applies only to NAT’s negligence. Ash asserts th at so long as the intentional tort of breach of fiduciary duty was a substantial factor in causing th e harm, NAT cannot esca pe liability even if there were an intervening and superseding cause. ( United States Fid. & Guar. Co. v. American Employer’s Ins. Co. (1984) 159 Cal.App.3d 277, 285 [“‘[T]he notion of independent intervening cause has no place in the law of intentional torts, so long as there
is a factual chain of causation,’” quoting Tate v. Canonica (1960) 180 Cal.App.2d 898, 907]; disapproved in other grounds in J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009, 1019, fn. 8; Bank of New York v. Fr emont General Corporation (9th Cir. 2008) 523 F.3d 902, 910; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1535, fn. 6; Rest.2d Torts, §§ 435A, 435B; but see Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1036 [“This comes close to pleading an intentional tort. From that prospect, the doctrine of superseding cause is less likely to cut off the chai n of events put in motion by the original conduct of the tort feasor . . . even the ‘but for’ consequences of an intentional
tort are not without limitati on”]; Wright, Symposium, Baseline and Counterfactuals in the Theory of Compensatory Damages: Wh at Do Compensatory Damages Compensate? (2003) 40 San Diego L.Rev. 1425, 1478 [“The superseding cause lim itation applies to all tort actions, including the intentional torts” ].) Assuming, withou t deciding, that the defense of intervening and su perseding cause does not apply to any intentional tort, we must examine the claim agai nst NAT, which claim was breach of fiduciary duty.
“‘The elements of a cause of action for brea ch of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiducia ry duty; and (3) dama ge proximately caused

a contract is breached or a tort committed, re sulting losses or damages may not be caused by the actual breach or the tort itself, but rather by multiple or intervening causes . . . . Such multiple or intervening ca uses are less likely to relieve a defendant from contractual liability than from tort liability”); III Farnsworth, supra, at section 12.1, page 151, footnote 9 (“Although the same problems of multiple causes and of intervening causes that enliven the law of torts also arise in connection with contract damages, they are relatively less important than in the law of torts”).18 by the breach.’” ( Gutierrez v. Girardi (2011) 194 Cal.A pp.4th 925, 932.) The breach of fiduciary duty can be base d upon either negligence or fraud depending on the circumstances. (See Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 563; see also Federal Deposit Ins. Corp. v. McSweeney (S.D. Cal. 1991) 772 F.Supp. 1154, 1157.) It has been referre d to as a species of tort di stinct from causes of action for professional negligence ( Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534) and from fraud ( Salahutdin v. Valley of California, Inc., supra, 24 Cal.App.4th at p. 562).
The trial court instructed th e jury as follows: “The As h Trust claims that it was harmed by NATCO’S breach of the fiduciary duty to use reasonable care. To establish this claim, the Ash Trust must prove all of the following: 1. Th at NATCO was the Ash Trust escrow holder; 2. That NATCO acted on the Ash Trust’s behalf for purposes of purchasing a commercial property; 3. That NA TCO failed to act as a reasonably careful
escrow holder would have acte d under the same or similar circumstances; 4. That the Ash Trust was harmed; and 5. That NATCO’s conduc t was a substantial factor in causing the
Ash Trust’s harm.” The trial c ourt did not instruct the jury th at it was required to find the breach of fiduciary duty to be intentional. And the trial cour t refused to instruct the jury
on constructive fraud. As it appears that the breach of fiduciary duty might have arisen from negligence, the intervening and superseding act doctrine c ould have been applicable. As suggested above, there is a question as to whether the intervening and superseding act doctrine is applicable to intentional torts. And, as noted above, in Brewer v. Teano , supra , 40 Cal.App.4th at page 1036, the court said that the doctrine “is less li kely to cut off the chain of events put in motion by the original conduct of the tortfeasor.” 13 In Tate v.

13 In Ventas, Inc. v. Health Ca re Prop. Investors, Inc. (W.D. Ky. 2009) 635 F.Supp.2d 612, 624, the court predicted Ke ntucky law would apply the intervening and superseding cause doctrine to intentional to rts, relying on a Kentucky comparative fault statute that applied to both negligent and intentional torts. In California, comparative fault only applies to negligence causes of action. ( People v. Brunette (2011) 194 Cal.App.4th 268, 282.) In Hibma v. Odegaard (7th Cir. 1985) 769 F. 2d 1147, the court19 Canonica, supra, 180 Cal.App.2d at page 909, the co urt noted that the rule on an intervening and superseding act would appl y “where the act of the defendant was intentionally done, but there wa s no intent to cause injury.” We do not have to decide whether an intervening or superseding act can be a defense to an intentional tort because here the trial court did not instruct the jury that in order to find a breach of fiduciary duty, it had to find that NAT intentionally breached its fiduciary duty. Also, the intervening and superseding act its elf need not necessarily be a negligent or intentional tort. For example, the cu lpability of the third person committing the intervening or superseding act is just one factor in determining if an intervening force is a new and independent superseding cause. (Rest.2d Torts, § 442, subds. (e) and (f); see also 1 Dobbs, supra , § 210, pp. 729-732 [acts of nature ]; 4 Harper et al. on Torts (3d ed. 2007) § 20.5, p. 179 [“extreme force”].) Our Supreme Court has pointed out that “[ a] tort is a legal cause of injury only
when it is a substantial factor in producing the injury.” ( Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 ( Soule ).) As relevant here, the court added, “This principle is distinct from the defense of ‘superseding caus e,’ which absolves a to rtfeasor, even though
his conduct was a substantial contributing factor, wh en an independent event intervenes in the chain of causation, producing harm of a kind and degree so fa r beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible. [Citations.] It is also distinct from the doc trine of ‘concurrent causes,’
which holds that when two or more tortious acts combine, each co ntributing significantly to a single ultimate harm, each act is deemed a substantial and legal cause of injury, making each concurrent tortfeasor fully liable. [Citations.]” ( Id. at p. 573, fn. 9.) The trial court refused a proposed jury instruction on intervening and superseding cause (CACI No. 432), which in struction was based on NAT’s de fense theory. A party is entitled to nonargumentative and correct in structions it requests on every theory advanced by that party if the theory is supported by substantial evidence. ( Soule
, supra, 8

held that the deputy sheriffs who framed the pl aintiff were not liable to the plaintiff for a sexual assault on the plaintiff by other prisoners.20 Cal.4th at p. 572.) We review the evidence most favorable to the applicability of the requested instruction, as a party is entitled to that instruction if that evidence could
establish the elements of the theory presented. ( Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1540.) But “‘[a] judgment will not be reversed for e rror[] in jury instructions unless it appears reasonably probable that, abse nt the error, the jury would have rendered a verdict more favorable to the appe llant. [Citation.]’ [Citation.]” ( Ibid. )
NAT contended at trial th at LandAmerica’s bankruptcy , the ensuing freezing of the segregated account, and th e bankruptcy court’s refusal to release the funds occurred after NAT’s conduct caused Ash his damage and was highly unusual. NAT claimed it had no reason to expect such occurrences, and the resulting harm was different than that which could be expected from NAT’s conduct. There was sufficien t evidence that the bankruptcy constituted “an inde pendent event [intervening] in the chain of causation, producing harm of a kind and de gree so far beyond the risk” ( Soule, supra, 8 Cal.4th at p. 573, fn. 9) that NAT should have foreseen, that the jury should have been given the intervening and superseding cau se instruction. The failure to give that instruction constituted error. (See id. at p. 573 and at fn. 10.) Moreover, the error was prejudicial. Th e general instructions on causation do not
render the error harmless because the doctri ne of intervening a nd superseding cause
assumes that a defendant’s conduct was a subs tantial contributory factor—i.e. that there was causation. ( Soule
, supra , 8 Cal.4th at p. 573, fn. 9.) The jury finding that NAT was responsible for $250,000 as foreseeable cont ract damages suggests that the remaining $750,000 of Ash’s tort damages against NAT for negligence and breach of fiduciary duty
were not based on the contract standard of damages but on tort principles. As the jury was not given an instruction on the defenses of intervening and superseding cause, it could not properly consider whether NAT shou ld be responsible for a tort or tort damages. That NAT’s conduct was found to be wrongful does not determine whether an intervening and superseding even t relieves NAT of liability. Ha d the jury been instructed on intervening and superseding cause, it is reasonably probable that it would have come to a different result, for damages were caused by the bankruptcy proceedings—an21 independent event that caused a harm th at could not be foreseen by NAT. ( Soule, supra, 8 Cal.4th at p. 573, fn. 9.)
This conclusion is evident from our determin ation that, in view of the evidentiary presentations in this case, the bankruptc y events were unusual and not reasonably foreseeable. “Since the court’s general in struction on causation did not go into the circumstances of this particul ar case but dealt with the de fense of superseding cause by negative implication only, the jury may well have overlooked that defense in untangling the issues and arriving at its verdict.” ( Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 10 (overruled on other grounds in Soule
, supra , 8 Cal.4th at p. 580).) Moreover, as the contract damages for th e bankruptcy were not foreseeable, those damages should not be invoked to rende r the instructional error harmless.

D. Other Contentions In view of our conclusions, we do not have to address many of the other contentions by the parties.

1. Accountant’s Testimony Because of the decisions on foreseeability and intervening and superseding cause, whether the accountant’s testimony on the tran saction and damages was appropriate need
not be addressed.22 2. Special Instruction on Estoppel
NAT and Lerner contend that the trial c ourt erred by refusing to give a special instruction on estoppel based on Ash’s alleged acquiescence in the escrow delay. The elements of estoppel are that the party to be es topped must be aware of the facts, he must intend that his conduct be relied upon or ac ted on so that the other party should reasonably believe it was so intended, the othe r party must not know the true facts, and the other party must rely on the conduct. ( Longshore v. County of Ventura (1979) 25 Cal.3d 14, 28.) Estoppel may not be applied if any of thes e elements is missing. ( Hair v. State of California (1991) 2 Cal.App.4th 3 21, 328.) There was no evidence Lerner relied on anything Ash said in this regard. Mo reover, Ash did not know that NAT did not intend to follow his directions. Thus, ther e was no error in not giving an estoppel
instruction.

3. Special Instruction on Causation
NAT and Lerner contend that the tria l court erred by refusing to give their proposed instruction on speculative causation. The trial court correctly instructed the jury that the breach must be a substantial factor in caus ing the damages and that the causal occurrence be reasonably certain. (See US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 909.) The inte rvening and supersedin g cause instruction that should have been give n as to NAT and the elimination of damages that are not
foreseeable should cover Lerner’s and NAT’s contentions on this instruction.

4. CACI No. 361 a nd Special Verdict CACI No. 361 provides, “The Ash Trust has made claims against NATCO for breach of contract; breach of fidiciary duty; and negligence. If you decide that the Ash Trust has proved all of . . . those claims, th en the same damages that resulted from those claims can be awarded only once.” Defendant s claim this instructi on along with the use of a special verdict form was error, citing Singh v. Southland Stone, U.S.A. Inc. (2010) 186 Cal.App.4th 338, as well as the instruc tion to the jury not to total the damage award.23 But defendants requested CACI No. 361 and did not object to the special verdict form. Any error in giving the instruction in th e language of CACI No. 361 was invited ( Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000), and the failure to object to the special verdict form was forfeited. Moreove r, the damages awarded did not exceed the amount requested. The jury awarded different sums for each cause of action
and did not write the total amount of the da mages on the verdict form. On remand, the trial court may take further steps to avoid any duplicate damages awards.

5. Instruction Not to Total Damages Any contention that the trial court erroneou sly instructed the ju ry not to total the damages award was forfeited because NAT and Le rner requested the instruction based on CACI No. 361, did not object to the jury fo rm on the ground that it allowed damages to improperly be calculated, and stipulated to th e responses that the trial court provided to the jury questions during deliberations.

6. Interpretation of Jury’s Verdict NAT contends the trial court incorrectly added together the jury’s findings on damages for contract and tort causes of action. It contends that Ash cannot obtain tort damages for a breach of the escrow instructions (see Money Store Investment Corp. v.
Southern Cal. Bank (2002) 98 Cal.App.4th 722, 732) or at leas t must elect between causes of action. It appears that Ash intr oduced evidence that NAT’s conduct went beyond a breach of contract. But, in view of our reversal, we need not reach this issue.

7. Sufficiency of the Evidence
Because of our reversals on both the contra ct and tort causes of action, we need not reach the issue of damages as to Lerner or liability as to NAT. There was substantial evidence to support the findings that Lerner and NAT breached their contracts with Ash. The expected closing da te as set forth in the parties’ agreement was November 21, 2008. The purchase agreement and escr ow instructions stated that time was of the essence.24 There was testimony that the closing date was mandatory. With the acquiescence of NAT, Lerner did not submit his deeds of trust or vesting information into escrow in time
to close. There was evidence that Ash ha d done everything required of him to close escrow on November 21, 2008. There was ev idence that the funds could have been wired on November 21, 2008. As noted above there was substantial evidence that Ash did not know what prevented Lerner from providing th e necessary material to close, and there
was substantial evidence that Le rner and NAT did not rely on anything Ash said or did to
cause the escrow not to close on time.

8. Attorney Fees In view of our decision, the issues regard ing attorney fees will have to be resolved upon remand.

9. Rulings on Motions
Defendants contend their motions for nons uit, judgment withstanding the verdict,
and new trial should have been granted. In view of our decision, we need not deal with these issues except that we remand for a new trial on whether NAT is liable on the damages issue.

10. Punitive Damages
Ash contends the trial court erred in granting NAT’s motion for judgment notwithstanding the verdict on the issue of pun itive damages. In view of our decision, we
do not have to resolve this issue.

11. Amendment of Complaint Ash contends he should have been gr anted leave to file a second amended complaint adding a cause of action that Le rner aided and abette d NAT’s breach of fiduciary duty, even though Ash waited more than tw o years from the filing of the complaint and more than one year after fi ling the operative amended complaint before25 seeking leave to file another amended complain t. This issue may be considered by the trial court upon remand.

E. Conclusion
We reverse and remand the matter for retr ial on the issue of damages for breach of contract and as to tort liability of NA T consistent with this opinion. (See Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 782; Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 332; Bliss v. Cal. Cooperative Producers (1952) 112 Cal.App.2d 507.) The issues to be retrie d are not so inextricab ly intertwined that a complete new trial as to the breach of contract claims is required. (See Liodas v. Sahadi (1977) 19 Cal.3d 278, 284-285.)

DISPOSITION

We affirm as to the liability of Lerner and NAT for breach of contact. We reverse and remand the matter as to contract damages as to Lerner and NAT and tort liability of NAT. Each party shall bear his or its own costs of appeal.
CERTIFIED FOR PARTIAL PUBLICATION

MOSK, Acting P. J.

I concur:

KUMAR, J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.KRIEGLER, J., Dissenting. I respectfully dissent. My colleagues reverse the ju dgment on the theory the ev idence is insufficient as a matter of law to establish that the damages suffered by the buyer were foreseeable. I disagree and would hold, after viewing the evid ence in the light most favorable to the judgment, that the issue of fore seeability was properly left to the jury’s determination. The escrow company breached an agreement with the buyer to secure his funds by a specified date, leaving the funds with an inte rmediary. Whether the intermediary’s bankruptcy was foreseeable to the escrow company based on the facts and circumstances of this case is a question on which reasonable minds can differ, making it an appropriate issue for the jury to decide . There is sufficient eviden ce to support the jury’s determination that the bankruptcy and the buyer’s damages were foreseeable to the escrow company. The seller breached the agreement as well, by failing to meet the escrow deadline, although the jury found the majority of the buyer’s damages (including the tax consequences) were not foreseeable to the seller. However, th e jury’s finding that some of the damages were foreseeable to th e seller as a result of missing the escrow deadline is supported by substantial evidence. I agree with the majority opinion that a supersed ing cause instruction was warranted with respect to the tort actions against the escrow company. However, in light of the arguments at trial and the jury’s find ings, I do not believe it is reasonably probable that the jury would have come to a different result if the instruc tion had been given.

FACTS AND PR OCEDURAL BA CKGROUND

Our duty on appeal is to vi ew the facts in the light most favorable to the judgment. ( Hub City Solid Waste Services , Inc. v. City of Compton (2010) 186 Cal.App.4th 1114, 1128-1129.) Because my view of the facts supporting the judgment differs significantly from the majority, I set forth the facts in accordance with the standard of review.2 I. Property Purchase Agreement

Plaintiff and appellant David Ash, as tr ustee of the David As h Trust dated January 10, 2008, owned commercial property on Wils hire Boulevard. He entered into an agreement to sell the Wilshire property on September 8, 2008. His brokers and accountant said he could defer capital gains tax under Internal Re venue Code section 1031 (section 1031) by using the proceeds to purchase a replacement property. Ash researched tax deferred exchanges. Under sec tion 1031, he was required to place the sale proceeds with a qualified interm ediary, identify a replacemen t property within 45 days, and complete the purchase within 180 days. Ash intended to use TIMCOR Exchange Corporation 1031, a subsidiary of Washingt on Mutual, as the inte rmediary, because it was the most familiar company. Ash found a commercial property for sale on Venice Boulevard that fit his needs. The property was owned by defendants and ap pellants Richard Lerner, as trustee of the Lerner Family Trust, and Rich ard and Gloria Lerner, as trus tees of the Exemption Trust of the Lerner Family Trust (collectively Lerner). 1 Ash submitted a purchase offer for the Ve nice property on September 29, 2008.
Lerner’s counteroffer on October 6, 2008, signed by Richard, stated that the seller was “Lerner Family Trust” and provided Lerner th e right to select the escrow holder. Ash accepted the counteroffer on October 8, 2008, and delivered a deposit of $50,000.
Ash could not use TIMCOR as an inte rmediary, however, because Washington Mutual had declared bankruptcy in the interim and closed operations. Ash spoke with brokers and selected qualifie d intermediary LandAmerica Ex change Services, Inc. He arranged for LandAmerica to receive the sale proceeds from the escrow on the Wilshire property and place them in a segregated account held by LandAmerica for Ash’s benefit. LandAmerica prepared an agreement for the transaction dated October 8, 2008.

1 Because more than one party or participan t shares the last name Lerner, they are referred to individually by their first names.3 Lerner’s real estate agent was Rick Rivera at Centers Business Management (CBM). Rivera selected defendant and appe llant North American Title Company (NAT) to provide escrow services a nd title insurance. NAT title officer Victor Greene prepared a preliminary title report for the Venice proper ty dated October 10, 2008, which he sent to CBM. The report stated that title to th e property was held as follows: a 50 percent interest held by Barbara Simk in, Bernard David Lerner, Rich ard Scott Lerner, Gloria Lee Lerner, and Irving Reifman as trustees of the Ray Lerner Irrevocable Trust; and a 50 percent interest held by Barbara Simkin, Bernard David Lerner, Richard Scott Lerner,
and Gloria Lee Lerner as trus tees of the Exemption Trust of the Lerner Family Trust dated November 17, 1986. The report included a form that Lerner ne eded to complete to certify that the signatories had au thority to act for the trust.
Rivera contacted NAT escrow officer Ma ria Jennings on October 13, 2008, to act as the escrow officer. Jennings prepared escr ow instructions on Oc tober 17, 2008, which
identified the seller as “The Lern er Family Trust” and stated the expected closing date for escrow was November 21, 2008.
Richard decided to record a note and de ed of trust on the Venice property to secure a debt that Lerner owed to a third part y. He would use the sale proceeds to pay off the note. Paying the debt through escrow wo uld provide tax benefits to Lerner. Richard arranged for his attorney, James Fisher, to mana ge the transaction. Attorney Fisher did
not know the es crow deadline. Richard also planned to defer Lerner’s capital gains tax on the sale through a section 1031 exchange. On November 4, 2008, CBM’s in-hous e attorney, Jeffrey Adelman, wrote an e-mail to Richard stating, “So that we avoid the vesting issues we had to clean up at [two other properties], please confirm EXACTLY how title is held for [the Venice property] and EXACTLY who will be doing a [section] 1031 exchange.” Richard asked him to send information showing the recorded title for the Venice property. On November 5, 2008, Ash removed all of the buyer contingencies and instructed
NAT to meet the escrow deadline. Lerner l earned that Ash planned to get a loan from US Bank for part of the purchase price.4 On November 6, 2008, Jennings alerte d Rivera that vesting information was required for the property. Rivera asked he r to identify the nece ssary information. Jennings replied that the title to the property reflected two trusts, so NAT needed copies of the trust agreements and all amendments, a confirmation that Rich ard had authority to sign on behalf of both trusts, a nd death certificates for previous trustees. Rivera e-mailed NAT’s request to Richard. Richard responded that his mortgage br oker Barry Weinstock had handled vesting
information five times previously, and Attorney Fisher had replaced one of the former trustees. Richard requested A ttorney Fisher send certain do cuments to Rivera, and that
Rivera obtain the rest of th e information from Weinstock. Escrow closed on Ash’s Wilshire proper ty and the sale proceeds were deposited with LandAmerica in the segr egated account for Ash’s benefit. After Ash had entered into the agreement with La ndAmerica, he developed concerns about LandAmerica’s financial viability. The banking system was co llapsing and Ash was afra id of the state of the entire industry. He needed the income fro m the Venice property. He wanted to move forward as quickly as possible to ge t the income and be protected.
Ash could not direct LandAmerica to transfer his funds to the Venice property escrow without violating the section 1031 exchange requirements . On November 12, 2008, Ash asked LandAmerica employee Sa rah Blankenship to communicate with Jennings to transfer $120,000 to escrow. As h also instructed Jennings to demand the
wire transfer from LandAmerica. On No vember 13, 2008, Blankenship and Jennings exchanged documents by e-mail, including wiri ng instructions. Blankenship transferred $120,000 into escrow that day. LandAmerica was alrea dy holding the sale proceeds in
accordance with the in termediary agreement dated Octo ber 8, 2008, when Ash finally signed the agreement on November 13, 2008. Weinstock provided some of Lerner’s ve sting information on November 14, 2008, which Jennings forwarded to Gr eene on November 17, 2008. On November 19, 2008, two days before escrow was sc heduled to close, US Bank employee Robert Kaempen delivered the follow ing to NAT on Ash’s behalf: cashier’s5 checks totaling $842,000, a deed of trust, a document verifying that Ash was the sole authorized trustee of the Ash Trust, and am ended escrow instructi ons directing NAT to
record the deed of trust befo re the close of escrow. Ash began accruing interest on the loan at the rate of $500 per day. That same day, Ash repeatedly asked Jenn ings to request the rest of the purchase funds from LandAmerica, which she confirme d that she would do. Ash told Jennings
several times that he needed the income from the Venice property, wanted to get the escrow completed, and wanted to ha ve his funds safely reinvested.
Ash’s real estate broker Robert Laswell s poke with Jennings in the late afternoon.
She told him that all the funds were in. He believed NAT had rece ived Ash’s funds from
LandAmerica and escrow wo uld close a day early. On the afternoon of November 19, 2008, Attorney Fisher spoke to Jennings for the
first time. He said he woul d be giving her two deeds of trust securing notes payable to third parties which he wanted recorded prior to the close of escrow. Jennings told him to get the deeds of trust to her by 3:30 p.m. th e next day, if he wanted them recorded by Friday. Jennings agreed to prepare pa yoff demands, escrow instructions, and an acknowledgement. In an e-mail confirming their responsibilities, Attorney Fisher referred to “the escrow tentatively schedule d to close the following week.” Jennings opened a separate escrow for Lerner’s transaction with the third party. On the morning of November 20, 2008, Jennings gave Attorney Fisher’s contact
information to Greene. Greene said he was reviewing Lerne r’s trust documents and they probably would need a dditional information.
Before noon on November 20, 2008, Richard sent an e-mail to Rivera in which he expressed regret if the third pa rty transaction delayed the escr ow closing. He added, “It is my fault because I thought the escrow was not closing un til the end of the month. I will do my best to urge [Attorney Fisher] to expedite his matters.”
LandAmerica needed an estimated clos ing statement from Jennings stating the amount to transfer. Shortly after noon, Ash se nt an e-mail to Jennings asking if she had6 received his funds from US Bank. “If so, is it possible to get me something so I can ask LandAmerica to wire you the remaining balance?” Attorney Fisher, Jennings, and Greene continued to exchange documents and
instructions about Lerner’s transaction with th e third party. Jennings wrote an e-mail to Ash, “I got the funds today, I am working on your file exclus ively today. I will have an estimate for you shortly. I am working on some last minute things for the Seller that is going to delay us a bit. I will keep you post ed on how that is all progressing. I am thinking that we are going to be pushed to Monday or Tuesday of next week.” Ash responded, “No Problem. Do I get a discount ;) (jk).” However, in a later telephone conversation, Jennings said escrow would not close on time and Ash said he was not approving a delay. Jennings said she woul d see what she could do to get it done. Jennings prepared and e-ma iled documents for the thir d party to sign. At 4:15 p.m., Jennings sent an e-mail to Rivera e xplaining that attorney s in the third party transaction were reviewing documents. She sa id she had told Richard that every day the
deeds of trust were not reco rded pushed th e escrow closing one day later. She told Richard and Attorney Fish er that if they wanted the deeds of trust recorded the next day, she needed them by 3:30 p.m., but they had not been delivered. She added, “Richard
asked me if all these last minute issues were preventing this escrow from closing tomorrow and I respectfully told him ‘Yes.’” She noted Gr eene had contacted Attorney Fisher for trust certifications, so he could finalize the seller vesting issues. At 4:34 p.m., Jennings e-mailed a revised cl osing estimate to Ash. She sent a trust certification for him to complete, but acknowle dged later that she already had the trust certification he signed for US Bank. Ash forwarded the closing estimate to Bl ankenship. At 4:48 p.m., Blankenship requested that Ash send a signed copy of the closing estimate and asked Jennings for wiring instructions. Ash faxed Blankenshi p a signed copy of the closing estimate. Jennings did not reply. On Friday, November 21, 2008, the day escrow was scheduled to close, Jennings had all the funds necessary from Ash to clos e the transaction except the wire transfer7 from LandAmerica. Blankenshi p sent another e-mail to Je nnings asking, “When do you need the funds wired?” Jennings did not re spond. Ash tried to call Jennings several
times but was not able to reach her. He be lieved the wire transfer from LandAmerica had been completed. At 1:16 p.m. on November 21, 2008, Jenn ings sent documents for the third party to sign. She notified Lerner that escrow coul d close if they got copies of the documents back by e-mail or fax. Lerner asked NAT to record the third party deeds of trust as an accommodation, releasing NAT from cl aims arising from the recording. At 4:24 p.m. on November 21, 2008, Richard e-mailed some of the remaining vesting documents to Jennings. He could not find a copy of the exemption trust. He wrote, “I will look over the weekend at my ho me storage unit for a copy. Please [ask] your title person if the waiver is sufficient esp ecially in light of the recorded deeds.” The third party e-mailed executed documents to Jennings at 4:55 p.m., but without the complete vesting documents, escrow could not close. On Monday, November 24, 2008, LandAm erica notified its clients that it was filing for bankruptcy. The bankruptcy court froze all of the assets that LandAmerica controlled. Jennings wrote an e-mail to Blan kenship and Ash asking , “Sarah or David, can you confirm how much you will be wiring and when you will wir e?” NAT recorded the third party deeds of trust that day. Lerner’s vesting issues were later reso lved, and the parties eventually executed agreements to extend escrow. Ash would not have signed the extension agreements, however, if he had known of Lerner and NAT’s actions that prevented escrow from closing. Ash did not cancel the transaction, because he would have lost his deposits and been unable to complete the tax-deferred exch ange. He paid interest on the US Bank loan. After five months, US Bank required As h repay the loan, because no deed of trust
had been recorded to secure it. Ash was not receiving income from the property and had to borrow money from his mother. He hired an attorney to represen t his interests in the bankruptcy and try to get his money released in order to complete the transaction. The bankruptcy court eventually released Ash’s fu nds in January 2010. With the funds and a8 new loan at a higher interest rate from We lls Fargo, escrow clos ed in March 2010. However, the tax-deferred exchange was not completed within the time allowed and Ash had to pay significant taxes on his gain fro m the sale of the Wilshire property. Ash sustained direct damage s totaling $1,033,000 as a resu lt of the failure to meet the escrow deadline, including his tax exposure, the interest that he paid on the US Bank loan, the increased interest ra te on the Wells Fargo loan, and his attorney fees to obtain his funds from the bankrupt estate.

II. Legal Proceedings

On April 13, 2009, Ash file d a complaint against Lerner for breach of the purchase agreement and against NAT for breach of the es crow instructions and breach of fiduciary duty. On March 2, 2010, Ash filed an am ended complaint, adding a cause of action against NAT for negligence. A jury trial began on Ju ly 20, 2011. Ash’s escrow expert Vickie Crestani explained that although LandAmerica’s bankr uptcy was unusual, it was not the first time in her history of working with qualified interm ediaries that an inte rmediary had declared bankruptcy. Crestani was dist urbed to hear that LandAmerica had closed its doors, but could not say that she was surprised. There had been rumors among LandAmerica employees that LandAmerica would fold up and close its doors. Cr estani could not say whether these rumors were generally known by people in the real estate industry in
Southern California.
Crestani testified that Jenni ngs had a fiduciary duty to follow Ash’s instructions to obtain his funds. Jennings failed to secure the funds from Ash’s qualified intermediary when he requested them, which she should have done even if escrow was going to be delayed by a day or two. In addition, the escrow instructions did not allow Lerner to en cumber the property before escrow closed. When Jennings recei ved information that constituted a material change to the escrow, she need ed to immediately advise Ash of the seller’s intentions to9 encumber the property and give Ash the oppor tunity to work out his options. NAT and Jennings accommodated Lerner and assisted in th e delay of escrow closing, rather than closing the transaction. Ash had completed everything that he n eeded to do to clos e the transaction. According to Crestani, when Jennings accepte d loan proceeds from US Bank, she should
have communicated with Ash that she would not be able to re cord the transaction and did
not have his funds from LandAmerica. She should have gone over his options, including returning the loan proceeds, obtaining the funds from LandAmerica, or investing Ash’s funds in commercial paper or an interest-bearing account.
Ash’s accountant testified that when the section 1031 exchange failed, Ash’s tax liability included $465,000 attr ibutable to the Venice prop erty transaction. Ash’s damages expert Winston Elton testified that as a result of the failure to close escrow on time, Ash suffered the following damages: $166,000 of lo st income from the property which Lerner collected instead; the additiona l tax liability of $465,000; legal costs of $140,000; payments and fees on the US Bank loan totaling $4 2,000; interest of $28,000 on a loan from his mother; and an additiona l $189,000 for the new loan from Wells Fargo. Therefore, the total amount of Ash’s direct damages was $1,033,000. During closing arguments, Ash argued that LandAmerica’s bankruptcy was the elephant in the room, but Lerner and NAT invited the elephant in by shirking their obligations to meet the escrow deadline. Lerner had breached the purchase agreement by recording deeds of trust that changed the title and failing to deliver title by the escrow deadline. NAT breached its agreement with Ash by failing to request Ash’s funds from LandAmerica and breached fiduciary du ties by failing to act on Ash’s behalf. Specifically, NAT failed to follow Ash’s instru ctions to get his funds from LandAmerica,
concealed information ab out the delay and entered into a side agreement with Lerner to record third party deeds of trust. NAT wa s negligent because Jennings failed to properly determine the property owners at the ou tset of escrow, did not timely send out documents, ignored the escrow deadline, and did not disclose conf licts to Ash. Ash10 sought four categories of da mages totaling approximately on e million dollars: the taxes incurred, lost profits, legal costs from the ba nkruptcy, and his costs related to the loans. In Lerner’s closing argument, Lerner ar gued that a section 10 31 exchange is not tax forgiveness, but simply ta x deferral, so it was pure specul ation as to what Ash’s tax liability would have ultimately been. In ad dition, Ash was seeking duplicative damages by asking for lost income as well as the payments made on the loans to acquire the property. Lerner noted that everyone was shocked when LandAmerica went into bankruptcy, and ultimately, it was La ndAmerica that t ook Ash’s money. NAT also argued that LandAmerica’s bankruptcy was an unforeseeable and extraordinary event. No one had expected or foreseen that it was going to happen. Escrow did not close on Monday, November 24, 2008, or later, because LandAmerica closed its doors, which was not caused by NAT or Lerner. Ash could not blame NAT that the bankruptcy judge refused to disburse funds held by LandAmerica. On August 2, 2011, the jury returned its verdict. The jury found NAT breached its
contract with Ash. All the conditions occurred that were required for NAT’s performance. NAT failed to act as required u nder the contract and Ash was harmed. The total damages attributable to NAT for breach of contract were $250,000. NAT also breached a fiduciary duty owed to Ash, which caused dama ges of $250,000. In addition, the jury found that NAT was ne gligent, which was a substantia l factor in causing harm to Ash, and attributed damages of $500,000 to NAT for neglig ence. Moreov er, the jury found that NAT acted with malice, oppressi on, or fraud, and a managing agent of NAT
authorized the conduct. Ther efore, the jury also awarde d punitive damages of $750,000 against NAT. As against Lerner, the jury found that Lerner entered into a contract to sell commercial real property to Ash, and As h had substantially performed under the agreement. Lerner failed to act as the contract required and Ash was harmed as a result. The jury attributed $300,000 of Ash’s da mages to Lerner’s breach of the purchase agreement.11 On September 19, 2011, the trial cour t entered judgment against NAT in the amount of $1,750,000 and against Lerner in the amount of $300,000. Lerner and NAT
filed motions for new trial a nd judgment notwithstanding the verdict, while Ash filed a motion seeking attorney and expert fees from Lerner and NAT. The court granted NAT’s motion for judgment no twithstanding the verdict as to th e claim for punitive damages and
otherwise denied the motions. On November 8, 2011, the court entered an amended judgment.

DISCUSSION

Standard of Review

“‘When findings of fact are challenge d on appeal, we are bound by the familiar and highly deferential substan tial evidence standard of revi ew. This standard calls for
review of the entire record to determine whether there is any substantial evidence, contradicted or not contradicted, to support the findings below. We view the evidence in the light most favorable to the prevailing pa rty, drawing all reasonable inferences and resolving all conflicts in its favor.’ ( People ex rel. Brown v. Tri–Union Seafoods, LLC (2009) 171 Cal.App.4t h 1549, 1567.)” ( Hub City Solid Waste Serv ices, Inc. v. City of Compton (2010) 186 Cal.App.4t h 1114, 1128-1129.)

Foreseeability of Contract Damages

The majority accepts the contention of Le rner and NAT that Ash’s damages were
unforeseeable as a matter of law and there is no substantial evidence to support the jury’s finding that the damages were foreseeable. I disagree. “Damages awarded to an injured party for breach of contract ‘seek to approximate the agreed-upon performan ce.’ [Citation.] The goal is to put the plaintiff ‘in as good a position as he or she would have occupied’ if the defe ndant had not breached the12 contract. [Citation.] In other words, the plaintiff is entitled to damages that are equivalent to the benefit of the plainti ff’s contractual bargain. [Citation.]” ( Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist. (2004) 34 Cal.4th 960, 967-968 ( Lewis ).) There are two types of contractual damage s: “general damages (sometimes called direct damages) and special damages (som etimes called consequential damages).” ( Lewis, supra, 34 Cal.4th at p. 968.) General damage s are “those that flow directly and necessarily from a breach of contract, or that are a natural result of a breach. (Civ. Code, § 3300 [damages ‘which, in the ordinary course of things, would be likely to result’ from breach]; Mitchell v. Clarke (1886) 71 Cal. 163, 167-168 [general damages are those that naturally and necessarily resu lt from breach].) Because ge neral damages are a natural and necessary consequence of a contract breach, they are of ten said to be within the contemplation of the parties, meaning that because their occurrence is sufficiently predictable the parties at the tim e of contracting are ‘deemed’ to have contemplated them. (Calamari & Perillo, The Law of Contr acts (2d ed. 1977) § 14-5, p. 525; Hunt Bros. Co. v. San Lorenzo Water Co. (1906) 150 Cal. 51, 56 [parties need not ‘actually have contemplated the very consequence that occu rred,’ but they would have supposed such a consequence was likely to follow a breach].)” ( Lewis, supra, 34 Cal.4th at p. 968.) Special damages “are those losses that do not arise directly and inevitably from any similar breach of any simila r agreement. Instead, they are secondary or derivative losses arising from circumstances that are partic ular to the contract or to the parties. Special damages are recoverable if the speci al or particular circumstances from which they arise were actually commu nicated to or known by the br eaching party (a subjective test) or were matters of which the breaching party should have been aware at the time of contracting (an objective test). [Citations.] Special damages ‘will not be presumed from the mere breach’ but represent loss that ‘occur red by reason of inju ries following from’ the breach. [Citation.] Special damages ar e among the losses that are foreseeable and proximately caused by the breach of a contract. [Citation.]” ( Lewis, supra, 34 Cal.4th at pp. 968-969.)13 “Contract damages, unlike damages in tort (Civ. Code, § 3333), do not permit recovery for unanticipated inju ry. [Citation.] Parties may vo luntarily assume the risk of liability for unusual losses, but to do so they must be told, at the time the contract is made, of any special harm likely to result fro m a breach [citations]. Alternatively, the
nature of the contract or the circumstances in which it is made ma y compel the inference that the defendant should have contemplated the fact that such a loss would be ‘the probable result’ of the defendant’s breach . [Citation.] Not recoverable as special damages are those ‘beyond the expectations of the parties.’ [Citation.] Special damages
for breach of contract are limite d to losses that were either actually foreseen (see, e.g.,
Dallman Co. v. Southern Heater Co. (1968) 262 Cal.App.2d 582, 586 [in contract negotiations, supplier was put on notice that its failure to perform would result in lost profits]) or were ‘reasonably fo reseeable’ when the contract was formed. [Citation.]” ( Lewis, supra, 34 Cal.4th at pp. 969-970.) Ash testified that just before the partie s entered their transaction, the most wellknown intermediary closed its doors due to Washington Mutual’s bankruptcy. Ash developed concerns about the financial viab ility of LandAmerica, and he told Jennings
that he was anxious to have hi s money safely reinvested in th e property. In other words,
Ash communicated his fear to NAT that his fu nds were not safe with the intermediary.
The extent of Ash’s concern was underscore d by the fact that he had LandAmerica transfer a significant portion of his funds into escrow early. The jury understood Ash’s testimony abou t the collapse of the banking system and the state of the industry referre d to the economic crisis of 20 08, the worst financial crisis
in the United States since the Great Depression. (Brian R. Cheffins, Did Corporate Governance “Fail” During the 2008 Stock Market Meltdow n? The Case of the S&P 500 (2009) 65 Bus. Law. 1, 1-2.) Venerable investment bank Bear Sterns was an early casualty of the financial crisis in March 2008 . (Financial Crisis Inquiry Report, Pub.L. No. 111-21 (Jan. 2011) pp. 289-291, availabl e at http://fcic.law.stanford.edu/report (Financial Crisis Report).) From there, fina ncial market conditions deteriorated rapidly14 in the late summer and early fall of 2008. ( West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 786.) On September 7, 2008, the federal go vernment placed two iconic mortgage institutions, the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporatio n (Freddie Mac), into conserva torship. (Financial Crisis Report, supra , Pub.L. No. 111-21 at p. 309.) Invest ment bank Lehman Brothers declared bankruptcy on September 15, 2008, and Ameri can International Group, Inc. (AIG) failed as well. ( Id . at p. 353.) Investors began pulling de posits out of strong banks far removed from the businesses at the center of the crisis. ( Id . at pp. 353-354.) In a span of eight days, depositors withdrew $16.7 billion from Washington Mutual. ( Id . at p. 365.) On September 25, 2008, the Office of Thrift Supervision (OTS) issued an order closing Washington Mutual and appointing the Federa l Deposit Insurance Corporation (FDIC) as receiver. ( Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App. 4th 872, 879, citing U.S. Dept. of the Treasury, Office of Thri ft Supervision Order No. 2008-36 (Sep. 25, 2008); 12 U.S.C. § 1821(c).) Washington Mu tual’s collapse was the largest bank failure in United States history. (Douglas W. Ar ner, Michael A. Panton and Paul Lejot, Central Banks and Central Bank Cooperati on in the Global Financial System (2010) 23 Pacific McGeorge Global Bus. & Dev. L.J. 1, 23.) On October 8, 2008, in the midst of th e economic crisis, Ash and Lerner entered into their purchase agreement. The Fina ncial Crisis Report described the economic
climate at that time: “as massi ve losses spread thr oughout the financial system in the fall of 2008, many institutions failed, or would ha ve failed but for government bailouts. As panic gripped the market, credit markets seized up, trading ground to a halt, and the stock market plunged.” (Financial Crisis Report, supra , Pub.L. No. 111-21 at p. 386.) The jury was entitled to interpret th e evidence in light of common human experience and matters of common knowledge. ( Gottloeb v. Melrose Health Baths (1957) 148 Cal.App.2d 313, 317.) The economic crisis of 2008 had a significant impact on American lives. (Stavros Gadinis, From Independence to Politics in Financial Regulation (2013) 101 Cal. L. Rev. 327, 350.) “Dramatic government initiatives and15 violent market reactions kept the crisis in daily headlines. The eleventh-hour bailouts of Bear Stearns, Merrill Lynch, and AIG, and Le hman's spectacular collapse, increased the salience of the issue and the visibility of th e main actors. In a 2008 poll on the thenevolving financial crisis, an impressive 84 perc ent of respondents stat ed that they pay at least some attention to reports about failing financial institutions such as Lehman, AIG, and Washington Mutual, with 57 percent stati ng that they pay a lot of attention.” ( Id. at pp. 350-351, fn. omitted.) “A lthough the national and state economies already were in dire straits [in September 2008], shortly th ereafter the economy further deteriorated dramatically in light of the financial credit crisis and the resulting stock market collapse in October 2008 and a sharp decline in real estate values and consumer spending.” ( Professional Engineers in California Government v. Schwarzenegger (2010) 50 Cal.4th 989, 1001.) The economic crisis that gripped the United States in 20 08 and the risk of bankruptcy were not particul ar to LandAmerica. The co nditions created a foreseeable risk in any similar agreemen t at that time. Ash’s damages from the delay in closing escrow were general damages, not special dama ges. It was sufficien tly predictable at the time that the parties entered into their agreem ent that if NAT failed to obtain Ash’s funds and left them with the intermediary, NAT gambled on whether LandAmerica would be the next financial institution to fail. Large r, established institutions collapsed before the parties even entered their agreement. Richard was as sophisticated an investor as Ash, if not more so. If escrow failed to close on time, it was certainly predictable to Lerner that Ash would lose income from the property an d might have to arrange a new loan on
less favorable terms. Whether the bankru ptcy and damages resulting from delay were foreseeable to the parties at the time of cont racting were factual issues for the jury to determine. The jury heard th e evidence and found the dama ges were foreseeable, and I would conclude from the above that the jury ’s findings are supported by substantial
evidence. I agree with the majority that a supers eding cause instruction was warranted in
connection with the to rt causes of action against NAT. However, NAT fully argued that16 LandAmerica’s bankruptcy was an unforeseeable event and the cause of Ash’s damages. The breach of contract instructions required th e jury to find that either the harm was likely to arise in the ordinary course of ev ents from the breach, or both parties could reasonably have foreseen the harm as a proba ble result of the breach when the contract was made. The jury not only awarded contra ct damages against NAT, but they awarded
the entire amount of Ash’s dama ges and found punitive damages were warranted as well. Based on the arguments and the jury’s findings , I do not believe it is reasonably probable that the jury would have reached a different result had they been given a superseding
cause instruction as to a few of the claims.

KRIEGLER, J.