Filed 6/29/26 Bakewell v. OneUnited Bank CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DANNY BAKEWELL, SR., B342714
Plaintiff and Respondent, (Los Angeles County
v. Super. Ct. No. 20STCV13703)
ONEUNITED BANK et al.,
Defendants and Appellants.
APPEAL from an order and judgments of the Superior
Court of Los Angeles County, Anne Richardson, Judge. Affirmed
in part and reversed in part with directions.
Markun Zusman & Compton, Edward S. Zusman and
Kevin K. Eng for Defendants and Appellants.
Ivie McNeill Wyatt Purcel & Diggs, Rickey Ivie; Pollak,
Vida & Barer, Daniel P. Barer and Karen M. Stepanyan for
Plaintiff and Respondent.
INTRODUCTION
In 2005, Kevin Cohee—the chairman, chief executive officer
(CEO), and majority shareholder of OneUnited Bank
(OneUnited)—convinced Danny Bakewell, Sr. to invest in the
bank based on an oral promise that Bakewell could have his
shares redeemed any time at par. In 2019, Bakewell sought the
promised redemption. Cohee and OneUnited (collectively,
Defendants) refused, denying any such agreement existed.
Bakewell sued and a jury returned a verdict awarding him
contract and tort damages totaling approximately $1.2 million.
Defendants moved for judgment notwithstanding the
verdict (JNOV) and for a new trial, raising a slew of arguments.
The trial court denied Defendants’ motions except as to an issue
concerning duplicative damages but did so after the statutory
deadline to rule on the motions had expired. As a result,
Defendants’ motions were denied by operation of law.
Defendants now appeal, claiming the trial court should
have granted their motions. Their appellate brief is largely cut
and pasted from the posttrial motions and fails to comply with
basic appellate principles that allow for meaningful review and
fair process. Among other things, Defendants make arguments
they did not make (or in some instances expressly disclaimed
they were making) before the trial court, ignore evidence
favorable to the judgment, supply an incomplete record and
provide next to no citations to that record, and set forth summary
assertions with no cogent argument. Accordingly, Defendants
have forfeited most of their appellate claims.
Defendants have sufficiently preserved and presented a
limited number of claims. They are that (1) the statute of
limitations barred recovery, (2) testimony from Bakewell’s family
2
members was inadmissible under the prior consistent statement
exception to the hearsay rule, (3) the jury’s damages award
includes a duplicative amount, and (4) the law does not support
the tort damages award.
We agree that the award includes duplicative damages but
find no other error. We therefore reverse the court’s orders that
denied (by operation of law) Defendants’ JNOV and new trial
motions, direct the court on remand to enter an amended
judgment that includes the correct total damages amount, and
otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
On April 8, 2020, Bakewell sued Defendants, asserting
various causes of action based on their refusal to redeem his
OneUnited shares. Bakewell alleged that as a result of being
fraudulently induced into investing in OneUnited, he had “lost
the use and benefit of his funds and reasonable interest he could
and would have earned on the funds.”
B. The Trial
In July 2024, Bakewell’s claims for breach of contract, false
promise, intentional misrepresentation, and breach of fiduciary
duty proceeded to a jury trial. We summarize only the trial
evidence and proceedings relevant to Defendants’ appellate
claims.
1. Summary of Percipient Witness Testimony
In 2000, Bakewell met Cohee, who aspired to make
OneUnited the nation’s largest Black-owned bank and expand
into Los Angeles. As part of that strategy, Cohee sought
investments from prominent community leaders. He believed
3
Bakewell was such a person, and Kenneth Lombard, a former
OneUnited board member, testified that Bakewell was viewed as
an important figure in the bank’s success.
Bakewell initially declined to invest in OneUnited. He was
not a sophisticated investor, had no experience investing in
privately held banks, and ordinarily relied on a firm, Northern
Trust, to select investments on his behalf. Northern Trust placed
some of his money in the stock market.
In 2004, United States Congresswoman Maxine Waters
and her husband, Sydney Williams, invested in OneUnited.
Later that year, Cohee and two other OneUnited board members
repurchased 4,000 shares from Waters and Williams. Cohee
admitted at trial that he had falsely testified at his deposition
that Waters had not purchased shares in the bank.
In August 2005, Cohee telephoned Bakewell with the
following offer: Cohee orally promised that if Bakewell invested
$250,000 in OneUnited’s stock (which Cohee considered a small
transaction), Cohee guaranteed to redeem the stock from
Bakewell any time Bakewell asked. The investment would also
earn dividends. Bakewell asked, “Any time I ask for it?” In
response, Cohee emphasized his control over OneUnited as its
chairman and CEO. Bakewell got off the telephone with Cohee,
spoke with his son and sister about the investment, then called
Cohee and agreed to buy the stock. Bakewell understood Cohee’s
redemption promise meant the investment was basically risk
free, which was essential to his decision to invest in OneUnited.
Bakewell’s son and sister testified pursuant to the prior
consistent statement exception (Evid. Code, § 791, subd. (b)) to
the hearsay rule. Bakewell’s son recalled a 2005 conversation in
which his father described Cohee’s assurance that “he could get
4
his money back whenever he decided to sell back the stock.”
Bakewell’s sister likewise testified that Bakewell told her that
Cohee guaranteed he could recover his investment.
Cohee testified that he never promised Bakewell that he or
OneUnited would buy back Bakewell’s stock upon request. In
2005, redemption required a determination that it was in the
bank’s long-term interest, board approval, and regulatory
authorization. Cohee lacked the authority to approve redemption
alone. Lombard, however, testified that Cohee effectively
controlled OneUnited’s board through his majority voting power,
and if Cohee wanted stock redeemed, he could make it happen.
Prior to purchasing the stock, Bakewell received an
August 25, 2005 letter from OneUnited, a subscription
agreement, and a statement of preferences and powers of class A
nonvoting convertible preferred stock (the P&P). The letter
stated that OneUnited had never missed a 6 percent quarterly
dividend and touted its commitment to helping low-income
communities in Los Angeles. It was silent as to redemption
rights.
The subscription agreement advised that the shares were
“not readily marketable” and the investment could result in total
loss. It did not mention redemption. It did not contain an
integration clause, a fact that Cohee acknowledged at trial.
The P&P provided that OneUnited “may, at its option, from
time to time redeem” the preferred shares at the liquidation
price. It said nothing about an investor’s ability to have the
shares redeemed.
Bakewell noticed none of the documents referred to his
right to have OneUnited redeem the stock at his request. He also
noted that the documents stated that he had spoken to his own
5
advisors about the investment. Bakewell telephoned Cohee to
discuss these issues. Cohee reassured Bakewell that he (Cohee)
could be Bakewell’s advisor and that given Cohee’s positions with
OneUnited, including being the majority shareholder, Cohee
controlled the bank. As to the clause about OneUnited’s
discretionary right of redemption, Cohee pointed out that what
was relevant was that it did not say Cohee or OneUnited could
not buy back the stock. Bakewell testified that Cohee assured
him, “[I]f I say you’re going to get your money back, as I have told
you before and as I’m telling you again, you will get your money
back upon request.” This satisfied Bakewell.
On September 1, 2005, Bakewell signed the subscription
agreement and wired $250,000 to OneUnited. Between 2005 and
2007, he received quarterly dividends from OneUnited totaling
approximately $34,000.
In 2008, Bakewell learned from media reports that bank
regulators imposed a cease-and-desist order on OneUnited. He
called Cohee to ask whether his investment was at risk. Cohee
assured Bakewell that the bank was “fine,” that it was “just some
bull[]” because they were a Black-owned bank, and told Bakewell
to trust him. Relying on Cohee’s representations, Bakewell did
not seek a return of his funds at that time.
Around this time, bank regulators notified OneUnited of
charges against it concerning unsound banking practices,
including operating with inadequate capital, and ordered the
bank to cease and desist engaging in such practices. Cohee
testified that this cease-and-desist order “absolutely prevented
[OneUnited] from paying [Bakewell].” OneUnited stopped paying
dividends to its shareholders in August 2008. Cohee
6
acknowledged that bank regulators lifted the cease-and-desist
order but could not recall when this occurred.
An unsigned letter from OneUnited to Bakewell dated
November 2009 stated that catastrophic losses from the economic
downturn had rendered his stock “essentially worthless” and
requested that he relinquish his “Class A Preferred Stock” to
OneUnited. Bakewell did not recall receiving this letter.
Bakewell first asked Cohee for his money back sometime
between 2012 and 2014. Cohee responded that it was “not a good
time,” and assured Bakewell that he “[would] get [his] money,”
but Cohee needed more time. Bakewell reminded Cohee that he
could get his money back whenever he wanted, and Cohee asked
Bakewell to bear with him. Bakewell agreed to wait because he
wanted to be supportive of the bank and did not need the money
for anything specific. Bakewell did not know or believe that he
could sell his OneUnited stock to anyone else.
In December 2013, OneUnited sent a letter to Bakewell
with a new stock certificate enclosed. Bakewell no longer owned
OneUnited preferred stock; they had been converted to Class B
non-voting common shares, which he still held at time of trial.
Cohee testified that Bakewell asked Cohee in or around
2015 to buy back Bakewell’s shares. Cohee told Bakewell he
could not repurchase the shares because it was not in
OneUnited’s or Bakewell’s long-term interest.
Bakewell again asked for his money back in 2018. Cohee
again said it was not a good time. Cohee never told Bakewell
that Defendants were not going to give him his money back. At
trial, Cohee denied telling Bakewell it was a bad time to redeem
his investment.
7
In 2019, Bakewell attempted to reach Cohee, but Cohee did
not take or return his calls. Bakewell retained counsel, who sent
written demands to Cohee in July 2019 and to OneUnited’s board
in November 2019 that OneUnited buy back Bakewell’s stock.
Cohee did not recall receiving the letters addressed to him, but he
was aware that in 2018 or 2019, Bakewell’s lawyer sent a request
that OneUnited redeem the shares, and Cohee then stopped
taking Bakewell’s calls. Cohee claimed that before those
demands, Bakewell had not mentioned that Cohee had promised
to redeem the shares.
Bakewell’s son and sister testified that Bakewell told them
he was concerned Cohee would not honor his promise to redeem
the stock. They witnessed Bakewell’s side of a 2018 phone call
between Bakewell and Cohee in which they heard Bakewell tell
Cohee that Bakewell wanted his money back for the stock. After
Bakewell ended the call, his son asked what Cohee had said.
Bakewell responded that Cohee had said it was not a good time,
that Cohee needed more time, and would get back to him. In
2019, Bakewell also told his son and sister that he had been
trying to reach Cohee but Cohee was not returning his calls.
Bakewell told them that he thought he would have to get lawyers
involved.
By a December 16, 2019 letter, OneUnited’s general
counsel denied that the shares were redeemable or that there
was ever an agreement that would have made them redeemable.
2. Bakewell’s Banking Industry Expert
Bakewell’s banking expert, Virgil Roberts, offered several
opinions at trial, including that Cohee had misled Bakewell, the
subscription agreement did not include an integration clause, and
that OneUnited departed from customary capital-raising
8
practices by failing to provide standard risk and financial
disclosures. He also opined that neither the 2008 cease-and-
desist order nor the 2013 conversion of Bakewell’s stock from
preferred to common shares precluded OneUnited from
redeeming Bakewell’s shares. Roberts added that the conditions
of OneUnited’s government loan arising out of the 2008 financial
crisis did not preclude OneUnited from purchasing Bakewell’s
shares, although it limited the bank’s ability to buy those shares
without first repaying the government.
Roberts further opined that OneUnited’s failure to redeem
Bakewell’s stock could have been due to poor management rather
than regulatory constraint. Roberts opined that given Bakewell’s
personal relationship with Cohee and Cohee’s assurance that the
investment would be repaid on demand, Bakewell’s reliance on
Cohee’s representations were reasonable.
OneUnited did not present a banking expert.
3. Bakewell’s Damages Expert
Before trial, Defendants deposed Bakewell’s forensic
economist Christian Tregillis. At deposition, Tregillis provided a
chart of his damages calculations and methodology. The chart
included alternative calculations using four benchmarks to
approximate the rate of return that Bakewell could have received
on his $250,000 investment, including the S&P 500, had he not
invested in OneUnited stock. Tregillis testified that if the matter
went to trial, he would update the calculations through the trial
date.
At trial, Tregillis presented figures for both breach of
contract and tort damages. Those damages included what
Bakewell had lost by not having $250,000 available for
alternative investment from the end of 2007 (when the dividends
9
stopped) through mid-2024 (the date of trial). Using the S&P
500’s performance as a proxy for the rate of return Bakewell may
have received, Tregillis concluded that “$250,000 would have
grown by $706,058 to get to $956,058.” Tregillis opined the S&P
500 was the most appropriate measure of Bakewell’s loss. Among
other things, Tregillis understood that Bakewell had taken the
$250,000 out of Northern Trust and spoke with Bakewell’s
Northern Trust contact who indicated that the S&P 500’s
performance was the most akin to the performance of Bakewell’s
investments.
Tregillis opined Bakewell’s shares had no current value.
They were not publicly traded, and there was no market for
them. He testified that fair market value reflects what a willing
buyer and seller would agree upon. The most recent transaction
Tregillis was aware of was that one shareholder had given
OneUnited back the shares for free in 2008, which indicated the
shares lacked value. He testified that Bakewell approached the
only logical buyers, Cohee and OneUnited, but they declined to
purchase the shares. To Tregillis, that refusal confirmed the
absence of any market value. On cross-examination, Tregillis
acknowledged that it was “possible” that even if OneUnited stock
was worthless in 2008 or 2009, it might currently have value. He
maintained, however, that the evidence indicated Bakewell could
not presently reasonably sell his OneUnited shares to the public.
During cross-examination, Defendants’ counsel also asked
whether Tregillis was aware that, at deposition, Bakewell had
testified that he had not planned to use the $250,000 in the stock
market. Tregillis testified this did not change his analysis,
noting that “invest[ing] in the stock market” was ambiguous and
could mean investing in an individual stock. Tregillis also
10
testified that to the extent Bakewell was more likely to invest in
real estate, real estate investments generally had performed well,
potentially even better than the S&P 500, and the S&P 500
therefore remained an appropriate and conservative measure to
use.
4. Post-evidence Conference and Motion for Directed
Verdict
After the close of evidence, Bakewell’s counsel raised
concerns that Defendants might argue the agreement was
integrated. Defense counsel stated, “I’m saying there’s no
integration clause in the agreement. I’ve stipulated to that.” The
court asked, “You’re not going to argue that it alone constitutes
the entirety of the party’s agreement and no parol evidence can
be given, right?” Defense counsel responded, “I’m not making
that argument. You’re correct.” She also argued, “I don’t think
we’ve ever argued that this was the full expression of the world
ever. That was not even brought up in the trial.”
Separately, Defendants moved for directed verdict on the
basis that the statute of limitations had expired for all causes of
action. They argued that the statute of limitations for breach of
contract, fraud, and breach of fiduciary duty began to run in 2012
when Bakewell first asked for his money back. Bakewell
responded that the statute of limitations had not run because the
parties had agreed to extend the time for performance. The court
found that whether the statute of limitations had run was a
question for the jury.
5. The Verdict and Judgment
On July 19, 2024, the jury returned a general verdict,
finding in Bakewell’s favor on all three of his claims, but awarded
damages payable only by OneUnited and not Cohee. The jury
11
awarded Bakewell $250,000 for his breach of contract claim, and
$956,058 in economic damages on his tort claims. The jury
awarded $0 in non-economic damages and did not find that either
defendant acted with malice, fraud, or oppression.
On August 8, 2024, the court entered judgment in
Bakewell’s favor, awarding Bakewell damages in the amount of
$1,206,058, and costs (the amount of which it would later
determine) to be paid by OneUnited. On August 13, 2024, the
clerk provided notice of entry of judgment.
C. Defendants’ Posttrial Motions and the Second
Amended Judgment
Defendants filed motions for JNOV and a new trial. In
their JNOV motion, Defendants argued that the court erred in
admitting parol evidence that was inconsistent with the written
agreement, the oral contract ran afoul of the statute of frauds,
the evidence was insufficient to support the jury’s implied finding
that an oral agreement existed, and Defendants’ performance on
the oral agreement was excused as impossible. Defendants also
argued that the statute of limitations barred recovery for all of
Bakewell’s claims. Defendants further argued their tortious
conduct did not proximately cause Bakewell’s harm because his
shares were “rendered worthless by the failure of Fannie Mae
and Freddie Mac, not anything that Cohee or [OneUnited] did.”
As to damages, Defendants argued that OneUnited was
entitled to Bakewell returning the stock and that the tort
damages of $956,058 included duplicate breach of contract
damages of $250,000. Defendants also argued that the jury
improperly awarded fraud damages based on Bakewell’s lost
opportunity to earn returns on the $250,000 as measured by the
performance of the S&P 500.
12
Defendants’ new trial motion raised the same issues as the
JNOV motion. Additionally, the new trial motion argued that
Bakewell’s damages expert’s testimony and calculations were a
surprise, offered for the first time at trial, and that the court
erroneously instructed the jury that the court had previously
found that the writing in the case was not intended by the parties
to be a final expression of their agreement and in not instructing
the jury as to mitigation of damages. It also argued the court
erred in admitting portions of Roberts’s testimony on legal
questions and ultimate issues and in admitting Bakewell’s son’s
and sister’s testimony as prior consistent statements. Finally,
Defendants argued without citation to the record that the court
allowed “Bakewell and his witnesses to give wide-ranging
testimony, while constraining Defendants’ witnesses.”
Bakewell opposed the motions.
On Tuesday, October 30, 2024, 78 days after the clerk
provided notice of entry of judgment, the court ruled. It found
that $250,000 of the tort damages improperly duplicated the
contract damages and otherwise denied Defendants’ motions.
The parties agree that because the court did not rule on
Defendants’ motions within the 75-day deadline provided in Code
of Civil Procedure sections 629, subdivision (a) and 660,
subdivision (c), the motions were deemed denied by operation of
law. Further unspecified statutory references are to the Code of
Civil Procedure.
On November 6, 2024, the court issued a second amended
judgment.1 It awarded Bakewell a total of $998,015.70, which
included $41,957.70 in costs that Bakewell incurred in the trial
1 There is no first amended judgment in the record.
13
court, to be paid by OneUnited only. The court stated it had
reduced the award by $250,000 on the grounds that it included
duplicative damages.
DISCUSSION
A. General Legal Principles and Standards of Review
1. Motion for JNOV
“The trial judge’s power to grant a [JNOV] is identical to
his power to grant a directed verdict. [Citations.] The trial judge
cannot weigh the evidence [citation], or judge the credibility of
witnesses. [Citation.] If the evidence is conflicting or if several
reasonable inferences may be drawn, the motion for [JNOV]
should be denied.” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110;
see also § 629.) In other words, “[a] party is entitled to [JNOV]
only if there is ‘no substantial evidence [to] support’ that verdict.”
(Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th
881, 890.)
In reviewing a trial court’s denial of a motion for JNOV, we
consider the record in the light most favorable to the jury’s
verdict and ask whether substantial evidence supports it.
(Licudine v. Cedars-Sinai Medical Center, supra, 3 Cal.App.5th
at p. 890.) “If we must resolve any legal issues in answering this
question, our review of such issues is de novo.” (Ibid.)
2. Motion for New Trial
Under section 657, a court may grant a new trial based on
the moving party establishing one of seven grounds, including
irregularity in the proceedings, accident or surprise, excessive
damages, insufficient evidence to support the verdict or that the
verdict was contrary to law, or an error in law. (Id., subds. (1),
(3), (5), (6), (7).) “[A] trial judge is accorded a wide discretion in
14
ruling on a motion for new trial” and “the exercise of this
discretion is given great deference on appeal.” (City of Los
Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.)
“An order denying a motion for new trial will not be set
aside unless there was an abuse of discretion that resulted in
prejudicial error.” (Jenks v. DLA Piper Rudnick Gray Cary US
LLP (2015) 243 Cal.App.4th 1, 8.) When reviewing an order
denying a motion for a new trial, we independently determine
whether the alleged error was prejudicial. (City of Los Angeles v.
Decker, supra, 18 Cal.3d at p. 872.)
B. Defendants Have Largely Forfeited Their Appeal
1. Legal Principles
We presume an appealed judgment to be correct (Jameson
v. Desta (2018) 5 Cal.5th 594, 608-609), and an appellant must
affirmatively show error (Denham v. Superior Court (1970) 2
Cal.3d 557, 564). That means an appellant must provide an
adequate record to allow us to meaningfully review appellant’s
claim of error (Jameson v. Desta, supra, at pp. 608-609), and
support their contentions with reasoned argument, legal
authority (Lee v. Kim (2019) 41 Cal.App.5th 705, 721), and
citations to the record (Duarte v. Chino Community Hospital
(1999) 72 Cal.App.4th 849, 856). An appellant who does not
comply with these basic principles forfeits their appellate
challenge. (See Lee v. Kim, supra, at p. 721 [“ ‘ “When an
appellant . . . fails to support [a point] with reasoned argument
and citations to authority, we treat the point as [forfeited]” ’ ”];
Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th
181, 187 [an appellant who fails to provide an adequate record on
an issue defaults and the issue must be resolved against the
appellant]; Duarte v. Chino Community Hospital, supra, at p. 856
15
[“If a party fails to support an argument with the necessary
citations to the record, that portion of the brief may be stricken
and the argument deemed to have been waived”].)
Additionally, “[i]n every appeal, ‘the appellant has the duty
to fairly summarize all of the facts in the light most favorable to
the judgment,” (Myers v. Trendwest Resorts, Inc. (2009) 178
Cal.App.4th 735, 739; see Cal. Rules of Court, rule
8.204(a)(2)(C)), not only facts beneficial to the appellant (Perry v.
Kia Motors America, Inc. (2023) 91 Cal.App.5th 1088, 1096).
Thus, “[i]f one is going to make a ‘the-facts-compel-that-I-win-as-
a-matter-of-law’ argument, one’s brief must fairly state all the
evidence.” (McCauley v. Howard Jarvis Taxpayers Assn. (1998)
68 Cal.App.4th 1255, 1266.) A party’s failure to do so may be
deemed a forfeiture of a substantial evidence challenge. (People
v. Ashford University, LLC (2024) 100 Cal.App.5th 485, 503;
Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 621.)
To the extent an appellant challenges the trial court’s
admission of evidence, “Evidence Code section 353, subdivision
(a) allows a judgment to be reversed because of erroneous
admission of evidence only if an objection to the evidence or a
motion to strike it was ‘timely made and so stated as to make
clear the specific ground of the objection.’ Pursuant to this
statute, ‘ “we have consistently held that the ‘defendant’s failure
to make a timely and specific objection’ on the ground asserted on
appeal makes that ground not cognizable.” ’ ” (People v.
Demetrulias (2006) 39 Cal.4th 1, 20.) An objection made on a
different ground cannot operate as a “ ‘placeholder’ ” for a later
objection. (Id. at p. 22.) “The reason for the requirement is
manifest: a specifically grounded objection to a defined body of
evidence serves to prevent error. It allows the trial judge to
16
consider excluding the evidence or limiting its admission to avoid
possible prejudice. It also allows the proponent of the evidence to
lay additional foundation, modify the offer of proof, or take other
steps designed to minimize the prospect of reversal.” (People v.
Morris (1991) 53 Cal.3d 152, 187-188, disapproved on other
grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
We “ordinarily will not consider arguments made for the
first time on appeal.” (C9 Ventures v. SVC-West, L.P. (2012) 202
Cal.App.4th 1483, 1491.) Similarly, we do not consider
arguments made for the first time in reply. (Doe v. California
Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115 [“ ‘ “Obvious
considerations of fairness . . . demand that the appellant present
all of his points in the opening brief. To withhold a point until
the closing brief would deprive the respondent of his opportunity
to answer it or require the effort and delay of an additional brief
by permission” ’ ”].)
2. Analysis
Defendants make numerous perfunctory arguments that
are unsupported by the record they provide, fail to fairly
summarize the relevant facts, fail to cite to the record, lack any
cogent supporting argument, or otherwise violate the
fundamental appellate principles just outlined. These arguments
are that (1) insufficient evidence supported the existence of the
oral agreement, (2) the court improperly admitted parol evidence,
(3) the court improperly permitted the jury to decide whether
there was an integration clause, (4) the evidence of the oral
agreement ran afoul of the statute of frauds, (5) the court erred in
admitting certain portions of banking expert Roberts’s testimony,
(6) impossibility excused their contract performance, (7) the court
should have instructed the jury on mitigation of damages,
17
(8) OneUnited was entitled to setoff, (9) the opinions of
Bakewell’s damages expert Tregillis were not properly disclosed,
and (10) other unspecified irregularities warrant a new trial.
We briefly summarize some of the fatal deficiencies with
these arguments.
(1) Whether sufficient evidence supports the existence of the
oral contract: Defendants’ opening brief provides no legal
standard, citation to authority, or cogent analysis as to the
elements of a contract (oral or otherwise) and how Bakewell
failed to establish them. Nor do Defendants cite any authority
supporting their contention that no oral agreement could exist
without there being a detailed redemption procedure.
(2 and 3) Whether the court improperly admitted parol
evidence: Defendants do not cite any objection they raised during
trial to the admission of parol evidence, and it appears, in fact,
Defendants had no such objection. Defendants disavowed that
they intended to argue that the subscription agreement was
integrated or a full and final expression of the parties’ agreement,
and responded to the court’s question asking, “[Y]ou’re not going
to argue that [the writing] alone constitutes the entirety of the
agreement and no parol evidence can be given, right?” by stating
“You’re correct.” Defendants also fail to provide any citations to
the supposedly inadmissible testimony.
Defendants relatedly argue the court improperly allowed
the jury to determine whether an integration clause existed. As
just noted, before the trial court, Defendants disavowed the
existence of an integration clause. Further, the record supplied
by Defendants has no copy of the jury instructions or reporter’s
transcript of what was read to the jury. Defendants fail to direct
us to where they presented evidence that the agreement was
18
integrated or that the question about whether an integration
clause existed was submitted to the jury.
(4) Whether the statute of frauds invalidated the oral
contract: “The statute of frauds is treated as a rule of evidence
which, if not properly raised, may be forfeited. [Citations.]
. . . ‘[I]it is settled that . . . a defendant waives his right to rely
upon any provisions of the statute of frauds [citation] by failing to
(a) demur to the complaint, (b) object to the introduction of
testimony to prove the oral agreement at the time of trial, or
(c) make a motion to strike such testimony.’ ” (Secrest v. Security
National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th
544, 551-552.) The trial court declined to consider Defendants’
statute of frauds argument because Defendants “raised the
statute of frauds defense for the first time” in the JNOV motion.
On appeal, Defendants do not argue that the court’s conclusion
was incorrect.
(5) Whether testimony from Bakewell’s banking expert
Roberts was improperly admitted: Defendants identify various
topics on which Roberts purportedly improperly testified.
Defendants falsely assert Roberts’s testimony (a) that Cohee
misled Bakewell, (b) defining an integration clause, (c) that
securities laws required OneUnited to provide a prospectus or
offering memorandum, (d) that the 2008 cease-and-desist order
did not preclude OneUnited’s ability to redeem the shares, and
(e) that the government’s loan did not preclude OneUnited’s
ability to redeem Bakewell’s shares came in “over objection.”
Defendants fail to identify those purported objections, and in fact,
as Bakewell points out, Defendants did not object to any of this
testimony or seek to strike it.
19
Defendants also argue that Roberts lacked foundation to
testify that the conversion of OneUnited’s stock from preferred to
common had no effect on OneUnited’s obligation to redeem
Bakewell’s stock. Although Defendants objected to the question
that led to this testimony as being vague, they never objected on
the grounds of foundation and cannot do so now. (People v.
Demetrulias, supra, 39 Cal.4th at p. 22.)
Defendants argue that Roberts “impugn[ed]” Defendants
when discussing the 2008 cease-and-desist order. But their
opening brief identifies no basis for excluding this testimony
under the rules of evidence and does not cite any objections they
may have made to that testimony. We are not bound to develop
Defendants’ arguments for them. (In re Marriage of Falcone &
Fyke (2008) 164 Cal.App.4th 814, 830.)
Defendants lastly suggest in a conclusory fashion that
Roberts improperly testified about the reasonableness of
Bakewell’s reliance on Cohee’s representations because this
testimony improperly went to an ultimate issue. Even if we
agreed that the trial court should not have admitted such
testimony, we may not reverse a judgment based on the
erroneous admission of evidence unless the appellant
demonstrates the error was prejudicial. (IIG Wireless, Inc. v. Yi
(2018) 22 Cal.App.5th 630, 655-656.) Defendants make no
argument that the court’s error was prejudicial. Nor can we
conclude that it was prejudicial in light of Cohee’s, Bakewell’s,
and Lombard’s testimony.
(6) Whether Defendants’ performance was impossible and
whether Defendants proximately caused tort damages: Neither
Defendants’ factual recitation nor their arguments in support of
these contentions acknowledges, much less addresses, the ample
20
contrary evidence in the record. Having failed to contend with
the significant facts supporting the verdict and instead
presenting only facts beneficial to them, Defendants have
forfeited these arguments.
(7) Whether the court erred in not instructing on mitigation
of damages: Defendants argue, without record citations, that the
court should have given an instruction on mitigation of damages
because there was a private market where Bakewell could sell his
shares. In refusing to give the instruction, the trial court
observed that there was no evidence of such a market.
Defendants fail to cite any such evidence or otherwise provide
reasoned argument that the trial court’s conclusion was incorrect.
(8) Whether the court erred in not ordering setoff:
OneUnited argues that because the $250,000 contract damages
award was based on Bakewell’s claimed redemption right, the
court erred in not ordering Bakewell to return OneUnited’s
shares under the equitable doctrine of setoff.2 Claims for setoff
must be pleaded, including for example as an affirmative defense
or in a cross-complaint. (E.g., American Nat. Bank v. Stanfill
(1988) 205 Cal.App.3d 1089, 1097.) OneUnited offers no legal
authority by which a trial court could award a setoff when one
was not pleaded. OneUnited fails to identify any instance in
which it pleaded a right to setoff, and the record does not contain
any of its answers to any iteration of the complaint. Nor does
OneUnited contest the trial court’s finding that OneUnited did
2 OneUnited conflates its setoff argument with a
presumption that the court awarded specific performance and not
breach of contract damages. OneUnited provides no basis for this
assumption, and we therefore do not consider it.
21
not “present evidence or argue that the shares should be
returned.”
(9) Whether the opinions of Bakewell’s damages expert were
properly disclosed: Defendants argue they were “ambush[ed]”
because Tregillis revealed his damages calculation for the first
time when he took the stand at trial. They fail to cite any of
Tregillis’s pretrial opinions in support of this claim, and in any
event their claim is simply untrue. Defendants omit mentioning
that, at his deposition two years prior to trial, Tregillis presented
his damages calculations and methodologies, including the use of
the S&P 500 as a proxy to measure Bakewell’s lost returns on the
$250,000. Moreover, Tregillis informed Defendants at his
deposition that if the matter went to trial, he would update the
numbers so that they were current—which he then did.3
(10) Whether unspecified “[o]ther [i]rregularities” warrant a
new trial: Defendants argue that the court permitted Bakewell
and his witnesses to give wide-ranging testimony but confined
Defendants’ witnesses to yes or no answers. They also argue that
the court failed to give instructions that placed the evidence in
the proper context for the jury. Defendants neither cite the
record nor further develop these arguments and thus fail to
demonstrate error. (Lee v. Kim, supra, 41 Cal.App.5th at p. 721;
Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at
p. 856.)
3 Defendants’ opening brief includes a single statement
that the court unfairly admitted Bakewell’s testimony concerning
his emotional distress. Even if Defendants had developed this
argument (which they did not), they fail to account for the fact
that the jury did not award any non-economic damages (which
would have included those for any emotional distress).
22
D. Issues as to Which Defendants’ Briefing is Adequate
1. The Statute of Limitations Does Not Preclude
Bakewell’s Claims as a Matter of Law
Defendants argue that the statute of limitations precluded
Bakewell’s claims as a matter of law. The applicable statutes of
limitations are (1) two years for breach of oral contract (§ 339,
subd. (1)), (2) three years after discovery for fraud (§ 338, subd.
(d)), and (3) four years for breach of fiduciary duty (§ 343), unless
the gravamen of the claim is fraud, in which case, it is three
years. (City of Vista v. Robert Thomas Securities, Inc. (2000) 84
Cal.App.4th 882, 889.) “Generally speaking, a cause of action
accrues at ‘the time when the cause of action is complete with all
of its elements.’ ” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35
Cal.4th 797, 806.) Thus, for example, “[a] contract cause of action
does not accrue until the contract has been breached.” (Spear v.
California State Auto. Assn. (1992) 2 Cal.4th 1035, 1042.) “An
important exception to the general rule of accrual is the
‘discovery rule,’ which postpones accrual of a cause of action until
the plaintiff discovers, or has reason to discover, the cause of
action.”4 (Fox v. Ethicon Endo-Surgery, Inc., at p. 807.)
Defendants simply reargue the evidence adduced at trial
and conclude that the statute of limitations precluded Bakewell’s
claims. However, “ ‘we are bound by the familiar principle that
“the power of the appellate court begins and ends with a
determination as to whether there is any substantial evidence,
contradicted or uncontradicted,” to support the findings below.’ ”
(Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245.) “We do not
4 As the record lacks any jury instructions, we do not know
whether the court instructed the jury as to the discovery rule.
23
reweigh evidence or reassess the credibility of witnesses.” (Id. at
p. 1246.) “[T]he testimony of one witness may be sufficient to
support the verdict, even if there is other evidence that would
support contrary findings.” (Mazik v. Geico General Ins. Co.
(2019) 35 Cal.App.5th 455, 463, fn. 2.)
Here, there was reasonable, credible evidence of solid value
from which the jury could have concluded that Bakewell’s claims
did not accrue until December 2019 when OneUnited’s general
counsel denied in writing that the shares were redeemable or
that there was an agreement that would have made them
redeemable. Bakewell consistently testified that prior to that
time, Cohee continued to affirm the agreement and to promise
Bakewell that he would get his money back. Further, Defendants
did not present any theory to the court or jury that the statute of
limitations accrued any earlier than 2012, when Bakewell first
requested his money back. Defendants have therefore forfeited
arguments that the statute of limitations accrued earlier.
2. The Prior Consistent Testimony from Bakewell’s Son
and Sister Was Admissible
Defendants argue that the trial court erroneously admitted
testimony from Bakewell’s son and sister (which was almost
entirely about prior consistent statements made by Bakewell)
because Bakewell’s claim that an oral agreement existed was not
“recently fabricated” as required by Evidence Code section 791,
subdivision (b). At trial, Defendants argued that testimony from
Bakewell’s son and sister about what Bakewell told them Cohee
had said to Bakewell was hearsay. Bakewell argued it was a
prior consistent statement under Evidence Code section 791,
subdivision (b). The court agreed and overruled the objection.
24
“Evidence of a statement previously made by a witness that
is consistent with his testimony at the hearing is inadmissible to
support his credibility unless it is offered after . . . [¶] . . . [¶]
(b) [a]n express or implied charge has been made that his
testimony at the hearing is recently fabricated or is influenced by
bias or other improper motive, and the statement was made
before the bias, motive for fabrication, or other improper motive
is alleged to have arisen.” (Evid. Code, § 791, subd. (b).)
Defendants argue that Bakewell’s testimony about the
redemption right was fabricated, but claim that fabrication was
not sufficiently “recent” enough as of the time of trial to fall
within Evidence Code section 791, subdivision (b). But as used in
the context of standard evidentiary rules governing prior
consistent statements, “recent” has a relative, not an absolute
meaning, and is measured against when the motive to fabricate
arose. (See Jones v. State (1994) 318 Ark. 704, 724 [“The word
‘recent,’ describing the fabrication, is merely a relative term,
meaning that the challenged testimony was supposedly
fabricated to meet the exigencies of the case”]; People v. Singer
(1949) 300 N.Y. 120, 124 [“ ‘[R]ecent’ . . . has a relative, not an
absolute meaning. . . . ‘Recently fabricated’ means the same
thing as fabricated to meet the exigencies of the case”].)
Bakewell’s 2005 statements to his family members that
Defendants promised to redeem OneUnited’s shares upon
Bakewell’s request, and his 2018 statements to those same
relatives that Cohee told Bakewell it was not a good time to
redeem the shares, were made before Bakewell took any legal
action alleging that Defendants had made such a promise. Thus,
25
Defendants have not demonstrated that the court abused its
discretion in admitting Bakewell’s son’s and sister’s testimony.5
3. The Jury Awarded Bakewell Duplicative Damages
Tregillis testified that had Bakewell placed his $250,000 in
an investment that produced similar returns to the S&P 500, the
“$250,000 would have grown by $706,058” and thus totaled
$956,058. The jury returned a verdict awarding Bakewell
$250,000 in contract damages and $956,058 in tort damages. The
court’s original August 8, 2024 judgment added the two amounts
together and awarded damages in the amount of $1,206,058.
In its JNOV and motion for new trial, OneUnited argued
the tort damages included the $250,000 that Bakewell had
received as part of his contract damages. The court agreed, but
did not rule until 78 days after the clerk had provided notice of
entry of judgment. On November 6, 2024, the court issued a
second amended judgment, reducing the verdict on the grounds
that the award of $250,000 for contract damages was duplicative
of a portion of the amount awarded by the jury for the tort claims.
The second amended judgment awarded Bakewell compensatory
damages of $956,058 plus $41,957.70 in costs that Bakewell
incurred in the trial court, for a total of $998,015.70, to be paid by
OneUnited only.
5 Defendants also argue that the admission of Bakewell’s
son’s and sister’s testimony ran afoul of Evidence Code section
352 and was “against [the] law on the issue of contract formation
and alleged breach.” Defendants do not cite where in the trial
record they originally made these objections. Nor do they develop
any argument on these points. Defendants have forfeited these
arguments. (Lee v. Kim, supra, 41 Cal.App.5th at p. 721; Duarte
v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856.)
26
Bakewell admits the jury’s verdict was in part duplicative,
but argues we need not address that duplication because the
court mooted the problem by issuing the second amended
judgment. OneUnited counters that the issue is not moot
because the court lacked jurisdiction to issue the second amended
judgment. We agree with OneUnited.
“Before entry, the judge may freely alter the judgment
rendered. [Citation.] But once the judgment is entered, the
judge loses this unrestricted power to change it. If the entry
conforms to the judgment as rendered, and there is no clerical
error in the rendition or entry, there can be no summary
amendment by the court itself no matter how wrong in law the
decision may be. Judicial error, i.e., an erroneous decision, can
only be rectified by the regular procedures for attack on
judgment: motion for a new trial, motion to vacate judgment,
appeal, or an independent action in equity.” (7 Witkin, Cal.
Procedure (6th ed. 2026) Judgment, § 65.)
Here, the 75-day period within which the court could rule
on Defendants’ motions had expired. (§ 660, subd. (c); see also
§ 629, subd. (a) [JNOV must be granted within same time limits
as new trial motion].) “The time limits of section 660 are
mandatory and jurisdictional, and an order made after the [75]-
day period purporting to rule on a motion for new trial is in
excess of the court’s jurisdiction and void.” (Siegal v. Superior
Court (1968) 68 Cal.2d 97, 101 [analyzing former § 660, which
required the court to rule within 60 days].) Thus, at the time the
court entered the second amended judgment, it had no
jurisdiction to do so.
No one disputes that the damages awarded in the original
judgment should be reduced by $250,000. We therefore remand
27
and direct the court to amend the original August 8, 2024
judgment such that the total compensatory damages of
$1,206,058 are reduced by $250,000 to $956,058.
4. Substantial Evidence Supports the Tort Damages
Award
The jury awarded a lump sum of $956,058 in damages for
Bakewell’s three tort claims. OneUnited argues these damages
do not adhere to the “out-of-pocket” theory of damages on which
the jury had been instructed (CACI No. 1923), and instead
improperly included “lost opportunity” damages.
“ ‘The question as to the amount of damages is a question of
fact. In the first instance, it is for the jury to fix the amount of
damages, and secondly, for the trial judge, on a motion for a new
trial, to pass on the question of adequacy.’ [Citation.] The
determination of the adequacy of damages rests largely in the
discretion of the trial judge. An appellate court will disturb the
verdict only where the amount of the award is not supported by
substantial evidence or where the verdict is a clear abuse of the
jury’s discretion.” (Calhoun v. Hildebrandt (1964) 230
Cal.App.2d 70, 74.)
CACI No. 1923 states, in part, “The amount of damages
must include an award for all [the] harm that [Defendants were]
a substantial factor in causing, even if the particular harm could
not have been anticipated.” (Italics added.) The instruction
accords with Civil Code section 3333, which states, “For the
breach of an obligation not arising from contract, the measure of
damages, except where otherwise expressly provided by this
[c]ode, is the amount which will compensate for all the detriment
proximately caused thereby, whether it could have been
28
anticipated or not.” The goal is to compensate a plaintiff for all
the harm a defendant proximately caused.
The record does not support OneUnited’s claim that
Tregillis’s damages calculations did not adhere to the correct
legal theory. CACI No. 1923 elsewhere states, “To decide the
amount of damages you must determine the [fair market] value
of what [Bakewell] gave and subtract from that amount the [fair
market] value of what [he] received.” In describing the “out-of-
pocket” calculation that he performed, Tregillis explained it was
based on “what was the value of what Mr. Bakewell gave up and
what did he get in exchange for that?” Tregillis testified that in
2005, Bakewell gave up $250,000 and the use of that money for
16 and a half years (between 2008 and 2024, after OneUnited
stopped paying dividends). Tregillis also opined that what
Bakewell received were shares that became valueless. His
opinion thus adhered to the applicable legal standard, and was
substantial evidence supporting the jury’s tort damage award (as
reduced).6
6 OneUnited points to Bakewell’s deposition testimony
where he stated he would “absolutely not” have invested the
$250,000 in the stock market. However, as Tregillis testified,
this excerpt is vague as to what Bakewell meant and thus did not
preclude Tregillis’s use of the S&P 500 to approximate Bakewell’s
rate of return. Defendants also argue that Bakewell “successfully
objected to the introduction of evidence pertaining to [Bakewell’s]
stock portfolio,” suggesting Defendants were precluded from
introducing evidence that would have shown the S&P 500 not to
be an appropriate measure for what would have been Bakewell’s
rate of return. But the record shows Bakewell’s counsel merely
objected to Defendants’ attempt to impeach Bakewell with his
deposition testimony that was irrelevant to the questions posed.
29
DISPOSITION
We reverse the court’s order that denied (by operation of
law) Defendants’ JNOV and new trial motions, and vacate the
second amended judgment entered as a result of that order. On
remand, the court is directed to enter a new amended judgment
reducing the total compensatory damages of $1,206,058 awarded
to Bakewell in the original August 8, 2024 judgment to $956,058,
and awarding costs incurred by Bakewell in the trial court in the
amount of $41,957.70, all payable by OneUnited. We otherwise
affirm. In the interests of justice, Bakewell is awarded his costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
30
