Filed 8/19/26 Leclair v. Assistantly CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
TERRY LECLAIR,
Plaintiff and Appellant, G065057
v. (Super. Ct. No. 30-2022-
01255993)
ASSISTANTLY, LLC, et al.,
OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County,
Andre De La Cruz, Judge. Affirmed.
Matt Cortez Law and Matt Cortez for Plaintiff and Appellant.
Houser, Eric D. Houser, Emilie K. Edling and Darlene M. Morris
for Defendants and Respondents.
Terry Leclair appeals after the trial court granted judgment
notwithstanding the verdict as to Leclair’s claim for breach of fiduciary duty
against Laith Masarweh and entered judgment for Laith Masarweh.1 Leclair
contends substantial evidence supported the jury’s finding of liability for
breach of fiduciary duty and award of $375,000 in compensatory damages
and $100,000 in punitive damages. We conclude substantial evidence does
not support the jury’s verdict as to the existence or amount of damages and
therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
At trial Leclair testified that when he and Masarweh met, Leclair
was the owner of a company called Terra Nova Multimedia, LLC. Thereafter,
he and Masarweh agreed to merge Leclair’s company into Masarweh’s
company which was called Immursiv, Inc. Leclair and Masarweh were to be
50/50 partners in Immursiv. After merging their companies in the summer of
2020, Leclair and Masarweh agreed to co-found the company Assistantly,
LLC. The idea to start Assistantly came about while Leclair and Masarweh
were at Immursiv. Assistantly was started in November of 2020 and was
created to offer virtual assistant services to Immursiv clients.
1 Leclair filed this action alleging causes of action for: breach of
fiduciary duty, failure to provide records, accounting, and dissolution. The
cause of action for breach of fiduciary duty was legal, whereas the other three
causes of action were equitable. The trial court separately found in favor of
Assistantly and Masarweh on the equitable claims. The only issue raised by
this appeal is whether the court properly granted judgment notwithstanding
the verdict as to the legal cause of action for breach of fiduciary duty.
2 As required by our standard of review, we discuss the evidence
in a light favorable to Leclair. (Sobalvarro v. Vibra Health Care (2026)
119 Cal.App.5th 748, 761 (Sobalvarro).)
2
When Assistantly started, Leclair testified he worked with
Masarweh to create, develop, and execute a business plan for Assistantly.
Leclair stated Masarweh referred to himself and Leclair as co-founders of
Assistantly. Immursiv and Assistantly also shared office space which
“represent[ed] [the] joint companies and how everything was connected.”
Leclair and Masarweh agreed to “hold off” on taking any money from
Assistantly until it became profitable. Leclair believed he was a co-founder of
Assistantly and had a 50/50 partnership with Masarweh. The long-term goal
was to sell Assistantly.
Around the time of Assistantly’s founding in November of 2020,
Masarweh filed articles of organization creating Assistantly. The articles only
listed Masarweh as a member. Masarweh did not discuss this with Leclair.
Instead, he continued to work with Leclair on Assistantly until the middle of
March in 2022 when Leclair and Masarweh had a meeting. During this
meeting Masarweh told Leclair “he was going to take [Assistantly],” and if
Leclair “needed any help starting anything again,” he would help him.
With respect to damages, Leclair proffered a text message in
which Masarweh admitted that in one month, Assistantly could have signed
80 people as clients, but he cut it off at 16. In the same text message
exchange, Masarweh stated Assistantly could get one thousand clients “easy,”
bringing in $850,000 in monthly revenue. Joyce Golden, Assistantly’s chief
marketing officer, also testified she was paid $15,000 monthly as an
independent contractor. Golden testified Assistantly had approximately 140
clients and charged them from about $1,000 up to $5,000 per month. Leclair
also testified he had an “E2 business visa” which was tied to his company
Terra Nova. Leclair stated because of the termination of his relationship with
Masarweh and Assistantly, he lost this visa and had to go home to Canada.
3
After hearing this testimony and other evidence, the jury found
in favor of Leclair on the breach of fiduciary duty claim. The jury specifically
found Leclair was a member of Assistantly, Masarweh breached a fiduciary
duty owed to Leclair, and Masarweh’s conduct was a substantial factor in
causing harm to Leclair. The jury awarded Leclair $375,000 in damages. The
jury also found Leclair proved by clear and convincing evidence Masarweh
acted with malice, oppression, or fraud, and awarded $100,000 in punitive
damages.
Thereafter, Masarweh moved for judgment notwithstanding the
verdict as to the breach of fiduciary duty cause of action. The trial court
granted the motion and concluded substantial evidence did not support the
jury’s verdict on liability or damages. The court determined the evidence did
not support the finding that Leclair and Masarweh agreed Leclair was a
member of Assistantly or that Masarweh breached a fiduciary duty to
Leclair. The court therefore also concluded the evidence did not support the
compensatory damage award or the imposition of punitive damages. The
court also found there was insufficient evidence of Masarweh’s financial
condition to support an award of punitive damages. Having separately ruled
on the equitable causes of action, the court found in favor of Masarweh and
Assistantly and entered judgment for Masarweh and Assistantly on all
claims.
DISCUSSION
I.
STANDARD OF REVIEW
The trial court’s power to grant a motion for judgment
notwithstanding the verdict is “‘“severely limited.”’” (Sobalvarro, supra, 119
Cal.App.5th at p. 761.) “‘“A motion for judgment notwithstanding the verdict
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may be granted only if it appears from the evidence, viewed in the light most
favorable to the party securing the verdict, that there is no substantial
evidence in support.”’” (Burch v. CertainTeed Corp. (2019) 34 Cal.App.5th
341, 348.) The focus is on “‘the quality, not the quantity, of the evidence.’”
(Sobalvarro, supra, 119 Cal.App.5th at p. 762.) A judgment notwithstanding
the verdict is subject to a de novo review and we do not defer to the trial
court’s assessment of the evidence. (Ibid.) Nevertheless, we “presume that the
‘“record contains evidence to sustain every finding of fact”’” and it “is the
appellant’s burden to demonstrate that it does not.” (Burch, supra, 34
Cal.App.5th at p. 349.)
II.
THE BREACH OF FIDUCIARY DUTY VERDICT IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE OF DAMAGES
Leclair argues substantial evidence supports the breach of
fiduciary duty verdict rendered by the jury as well as the award of
compensatory and punitive damages. “‘The elements of a cause of action for
breach of fiduciary duty are the existence of a fiduciary relationship, breach
of fiduciary duty, and damages.’” (Knutson v. Foster (2018) 25 Cal.App.5th
1075, 1094.) Damages are an essential element of a breach of fiduciary duty
claim. Even if a breach of the fiduciary duty in question is undisputed,
without proof of damage, the claim fails. (See Slovensky v. Friedman (2006)
142 Cal.App.4th 1518, 1535 [attorney failed to timely contest there was a
breach of fiduciary duty, but nonetheless, the plaintiff failed to “establish a
triable issue of fact as to damages”].) Such is the case here. Since substantial
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evidence does not support any of Leclair’s requested damages, the trial court
correctly determined the breach of fiduciary claim cannot stand.3
A. The Verdict Is Not Supported by Substantial Evidence of Economic
Damages
With respect to Leclair’s claimed economic damages, it is not
clear what theory of damages Leclair pursued at trial.4 Often in “business
cases, damages are based on net profits,” which is itself distinct from “gross
revenue.” (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 397.) “‘“‘Net
profits are the gains made from sales “after deducting the value of the labor,
materials, rents, and all expenses, together with the interest of the capital
employed.”’”’” (Parlour Enterprises, Inc. v. Kirin Group, Inc. (2007) 152
Cal.App.4th 281, 287.) To substantiate a claim for lost business profits, a
“plaintiff must show loss of net pecuniary gain, not just loss of gross
revenue.” (Ibid.)
Leclair contends Assistantly had 140 clients with an average of
$5,000 per month or $700,000 in monthly revenue. However, he does not cite
the record when setting forth the evidence supporting his damages. From our
3 We note the parties also discuss whether the trial court was
bound by the jury’s verdict on the legal claim in ruling on the equitable
claims. (See Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 158 [“Where legal
claims are first tried by a jury and equitable claims later tried by a judge, the
trial court must follow the jury’s factual determinations on common issues of
fact”].) Ultimately, the question is not dispositive of any issue before us. The
only issue before us is whether the court properly granted the JNOV as to the
legal cause of action, which was the breach of fiduciary duty claim. However,
even if the question were before us, because we affirm the JNOV on the legal
cause of action, the issue would be moot.
4 For the purposes of our analysis of damages, we assume Leclair
was able to establish he and Masarweh agreed Leclair was a member and
had a 50 percent interest in Assistantly.
6
review of such, Golden testified Assistantly had approximately 140 clients
and billed them anywhere from $1,000 to $5,000 per month. In other words,
$5,000 was the high end, not the average. The total of $700,000 appears to be
Leclair’s calculation based on the unsupported assumption 140 clients were
billed at $5,000 per month. But even if Leclair sought to establish the value
of Assistantly and the 50 percent share he contended he was wrongfully
deprived of, this too required Leclair to offer some valuation method and
evidence of the value pursuant to the methodology. (See Ronald v. 4-C’S
Electronic Packaging, Inc. (1985) 168 Cal.App.3d 290, 299 & fn. 4 [discussing
five valuation methods for calculating the value of an interest in a closely-
held corporation].) Under any valuation theory, however, it was necessary to
consider some comparison or balancing of income, assets, or other earnings
against costs, liabilities, or losses. (Ibid.) In other words, money coming into
an entity alone is insufficient to establish the value of the entity. (See Kids’
Universe v. In2Labs (2002) 95 Cal.App.4th 870, 888 [summary judgment was
affirmed as to a lost profit damage claim because the plaintiff “failed to assert
any method for determining lost profits” and “presented no specific economic
or financial data, market survey, or analysis based on the business records or
operating histories of similar enterprises”].)
While Leclair may have been entitled to a portion of any
distributions or payments that were made or should have been made (Corp.
Code, § 17704.04, subd. (b)), for a distribution to be made, debts and other
liabilities must be considered. (See id., § 17704.05, subd. (a)(1)–(2) [among
other reasons, a “limited liability company shall not make a distribution” if
the “limited liability company would not be able to pay its debts as they
become due” or the “limited liability company’s total assets would be less
than the sum of its total liabilities”].) Leclair does not cite any evidence
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distributions were actually made, and there does not appear to have been
evidence offered as to whether Masarweh received a salary or share of profits
from Assistantly. Leclair testified he did not know whether Masarweh
received any money from Assistantly. During the time he and Masarweh
worked together, the agreement was they would not take a salary.
“The focus of an award of damages is the quantification of
detriment suffered by a party.” (Meister v. Mensinger, supra, 230 Cal.App.4th
at p. 396.) While “‘the amount of damages need not be calculated with
absolute certainty’” (ibid.) the law requires “‘that some reasonable basis of
computation of damages be used, and the damages may be computed even if
the result reached is an approximation’” (id. at p. 397). Moreover, “‘damages
which are speculative, remote, imaginary, contingent, or merely possible
cannot serve as a legal basis for recovery.’” (Piscitelli v. Friedenberg (2001)
87 Cal.App.4th 953, 989.) The evidence offered by Leclair is, at best, a very
rough assessment of Assistantly’s monthly revenue from clients and the
salary of an independent contractor.
B. The Verdict Is Not Supported by Substantial Evidence of Noneconomic
Damages
Noneconomic damages, such as emotional distress or pain and
suffering, may be recoverable on a breach of fiduciary duty claim if “directly
caused” by the breach. (Kaushansky v. Stonecroft Attorneys, APC (2025)
109 Cal.App.5th 788, 805.) Leclair cites the evidence regarding the loss of his
visa as a basis for noneconomic damages.5 However, nothing in the record
5 In his responsive briefing, Masarweh argues a motion in limine
ruling precluded Leclair from claiming emotional distress damages. It is not
clear Leclair sought emotional distress damages, but regardless, the court
permitted Leclair to testify about his visa and permitted Leclair’s counsel to
discuss in closing arguments his claim for noneconomic damages based on the
8
suggests Leclair ever had a visa through his involvement in Assistantly.
Leclair founded Terra Nova prior to meeting Masarweh and was the sole
owner. Prior to Assistantly, Leclair testified he and Masarweh created
Immursiv and agreed to merge Terra Nova into Immursiv. Leclair testified
he was paid by both Immursiv and Assistantly through Terra Nova to
maintain the visa he had obtained through Terra Nova. However, Leclair also
testified, after the merging of Terra Nova into Immursiv, Terra Nova was
just the “shell of a business” and he could not continue the visa through Terra
Nova. Leclair does not cite to any evidence in the record regarding the status
of his visa after the merger of Terra Nova into Immursiv, the sale of
Immursiv, or, most significantly, the formation of Assistantly.
Speculative or contingent damages are not a legal basis for
recovery. (Piscitelli v. Friedenberg, supra, 87 Cal.App.4th at p. 989.) Because
there was no evidence Leclair had a visa through Assistantly, we cannot
conclude substantial evidence established Masarweh’s alleged breach of
fiduciary duty directly caused the loss of the visa. Additionally, we have no
way of knowing, and neither did the jury, whether Leclair’s claimed interest
in Assistantly was or would have been sufficient to support renewal of his
visa.
III.
LECLAIR IS NOT ENTITLED TO REMAND FOR A NEW TRIAL ON DAMAGES
Because the jury’s finding Leclair was damaged by Masarweh’s
conduct is not supported by substantial evidence, Leclair’s claim for breach of
fiduciary duty must fail. (Slovensky v. Friedman, supra, 142 Cal.App.4th at
visa issue. The special verdict form, however, did not ask the jury to
distinguish economic from noneconomic damages and we do not know
whether this was a factor in the jury’s award.
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p. 1535.) The same holds true for the punitive damage award. (Farmers &
Merchants Trust Co. v. Vanetik (2019) 33 Cal.App.5th 638, 656.)6
In his reply brief, Leclair asks us to remand for a new trial on
damages if we conclude the evidence supporting damages was insufficient.
We cannot provide this remedy. “When the plaintiff has had full and fair
opportunity to present the case, and the evidence is insufficient as a matter of
law to support plaintiff's cause of action, . . . no new trial is ordinarily
allowed, save for newly discovered evidence.” (McCoy v. Hearst Corp. (1991)
227 Cal.App.3d 1657, 1661.) Indeed, it would be “anomalous” if after
determining “the trial court correctly enter[ed] a nonsuit or [judgment
notwithstanding the verdict] on the ground that the plaintiff has, as a matter
of law, failed to prove a cause of action,” the plaintiff automatically receives a
second chance. (Ibid.) Instead, where a party had a “full and fair opportunity
to present its evidence” of damages but the evidence was insufficient,
judgment is appropriate. (Copenbarger v. Morris Cerullo World Evangelism,
Inc. (2018) 29 Cal.App.5th 1, 15.)
Leclair does not argue new evidence justifies another trial.
Instead, Leclair cites several inapt authorities supporting this request, none
of which require a different outcome. For example, Leclair cites Atkins v. City
6 The punitive damage award would fail for the independent
reason Leclair did not offer evidence of Masarweh’s financial condition.
“‘Evidence of a defendant’s financial condition is a legal precondition to the
award of punitive damages.’” (Farmers & Merchants Trust Co. v. Vanetik,
supra, 33 Cal.App.5th at p. 647.) “A plaintiff seeking punitive damages must
provide a balanced overview of the defendant’s financial condition; a selective
presentation of financial condition evidence will not survive scrutiny.” (Id. at
p. 648.) Here, there was no additional evidence of Masarweh’s financial
condition beyond the evidence discussed regarding damages. Evidence of
revenue or assets without consideration of costs and liabilities is not
sufficient.
10
of Los Angeles (2017) 8 Cal.App.5th 696 wherein the court remanded for a
new trial on damages because it concluded there was “evidence in the record
from which the jury could have calculated a reasonable amount of future
economic damages,” but it was not the court’s “role to say what that amount
should be.” (Id. at p. 742; see also Teitel v. First Los Angeles Bank (1991) 231
Cal.App.3d 1593, 1606–1607 [remanding for trial court to reconsider motion
for new trial on punitive damages or remittitur where evidence was sufficient
to justify imposition of punitive damages, amount awarded was arguably
excessive, and motion for judgment notwithstanding verdict was
inappropriate means to reduce excessive award].) Here, as discussed, there
was a failure in the proof of damages, not in the specific amount.
In Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655,
also cited by Leclair, there was instructional error on the issue of punitive
damages, and the reviewing court could not “determine how the instructional
error . . . affected the amount of the punitive damages award.” (Id. at p. 696.)
There is no claim of instructional error here.
Lastly, in Estate of Kampen (2011) 201 Cal.App.4th 971, 988–996,
while the appellate court concluded nonstatutory damages awarded on a
breach of fiduciary duty claim were speculative and not supported by the
evidence, it affirmed the judgment based on other available statutory
damages. Here, Leclair has no alternate basis to recover damages.
Leclair had a full and fair opportunity to present evidence of the
harm he suffered and his damages. Accordingly, we decline his request to
remand for a new trial on damages.
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DISPOSITION
For the reasons stated herein, the judgment in favor of Masarweh
on Leclair’s breach of fiduciary duty cause of action is affirmed. Masarweh
shall recover his costs on appeal.
MOTOIKE, P. J.
WE CONCUR:
SERVINO, J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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