[00:00:14] Speaker 00:
Good morning, may it please the court?

[00:00:16] Speaker 00:
My name is Monica Latten, appearing on behalf of UST Global Inc.

[00:00:19] Speaker 00:
I'd like to reserve four minutes for rebuttal.

[00:00:22] Speaker 00:
Alright, watch your clock.

[00:00:25] Speaker 00:
B-12 in the underlying case pled a straightforward claim for breach of a 2014 master services agreement.

[00:00:32] Speaker 00:
This is in the excerpts of record at 201, attaching the 2014 master services agreement and nothing else in terms of contract.

[00:00:41] Speaker 00:
Acknowledged in the complaint that specific services had to be described in a separate statement of work and listing invoices that were issued pursuant to statements of work, claiming that non-payment of those invoices was a breach

[00:00:54] Speaker 00:
of the 2014 Master Services Agreement.

[00:00:58] Speaker 00:
Throughout the case, B-12 cast this as an equitable claim, stating in their brief at 42 that UST Global was trying to reap the benefits of services without payment.

[00:01:09] Speaker 00:
That quantum merit claim was dismissed for under statute of limitations.

[00:01:14] Speaker 00:
Under the contract on which it sued, the remaining contract, it was its burden to demonstrate that non-payment for services breached this particular agreement.

[00:01:23] Speaker 00:
In doing so, it was required to rely on separate contracts that admittedly by all parties make no reference to the 2014 Master Services Agreement and therefore relying on legally irrelevant testimony, parole evidence seeking to vary the terms of those intervening contracts and failing to connect the necessary contractual dots to show that the non-payment of the invoices

[00:01:50] Speaker 00:
as they proceed through the statement of work, constitute a breach of the separate agreement.

[00:01:55] Speaker 01:
Your original motion, did you argue that the judge improperly admitted parole evidence?

[00:02:07] Speaker 00:
Yes, Your Honor.

[00:02:09] Speaker 00:
In our 50A motion and 50B, we alleged that there was no legally sufficient evidence.

[00:02:15] Speaker 00:
And the court noted that we had preserved the evidentiary objection to parole evidence.

[00:02:19] Speaker 00:
But in the JMOL order itself, the court noted preservation of error on the objection at trial.

[00:02:28] Speaker 00:
And I would note that the questions of law are not required to be preserved in a 50A motion.

[00:02:36] Speaker 00:
Our observations about parole evidence is that they are a legal nullity, my words, that they, as a matter of substantive law,

[00:02:44] Speaker 00:
have no effect on the contract claim.

[00:02:46] Speaker 00:
So our 50A motion, which was there was no legally sufficient evidence, then of course can go on to address why there's no legally sufficient evidence.

[00:02:54] Speaker 00:
For example, parole evidence.

[00:02:56] Speaker 00:
For example, testimony lacking a legal foundation.

[00:03:00] Speaker 03:
So we're applying California law here, right?

[00:03:03] Speaker 03:
Yes.

[00:03:05] Speaker 03:
So California law has a parole evidence rule that I find kind of counterintuitive.

[00:03:10] Speaker 03:
But as I understand it, extrinsic evidence can always be introduced initially to show that seemingly clear language actually has a latent ambiguity.

[00:03:20] Speaker 03:
And I don't understand how that isn't applicable here.

[00:03:23] Speaker 03:
I know you're saying there shouldn't be parole evidence.

[00:03:25] Speaker 03:
But it seems like you're pointing to language that suggests

[00:03:29] Speaker 03:
Some other agreements were the real agreements that this is about.

[00:03:32] Speaker 03:
But there's no evidence those agreements exist.

[00:03:35] Speaker 03:
And so if there's no evidence those agreements exist, I think you can use parole evidence to say there's a latent ambiguity about what was being referred to here.

[00:03:42] Speaker 00:
Thank you, Your Honor.

[00:03:45] Speaker 00:
The ambiguity issue below that was raised by B-12 was a very narrow one.

[00:03:49] Speaker 00:
And that issue that was submitted to the jury on ambiguity only related to 33 invoices,

[00:03:56] Speaker 00:
of the 73 media services invoices.

[00:03:58] Speaker 00:
The argument of ambiguity that the court allowed to go to the jury was only an issue about the time frame of the Statements of Work, which I can address that bucket.

[00:04:08] Speaker 00:
But it does not address the larger issue, which is that the 2014 Master Services Agreement says it's a complete agreement and that Statements of Work executed here under

[00:04:20] Speaker 00:
become part of that.

[00:04:22] Speaker 00:
So it was B-12's burden to prove that the statements of work were executed here under.

[00:04:28] Speaker 00:
B-12 pointed to the statements of work as the actual documents pursuant to which the work was performed.

[00:04:36] Speaker 00:
The invoices, they say, tie to these statements of work.

[00:04:39] Speaker 00:
But the face of those statements of work do not evidence an intent to be executed here under the 2014 MSA.

[00:04:48] Speaker 00:
But I guess that's what I'm saying.

[00:04:50] Speaker 03:
The language of those, maybe there's this latent ambiguity that parole evidence can be used to sort out.

[00:04:58] Speaker 00:
What B-12's contention was at trial was that it was an error.

[00:05:02] Speaker 00:
repeatedly throughout was that the statements of work were a mistake, that it was a mistaken reference, and B-12 never sought the legal avenue to correct that, keeping in mind that under PG&E, an ambiguity argument has to give rise to an interpretation that the document is reasonably susceptible to.

[00:05:22] Speaker 00:
And the statements of work are not reasonably susceptible to an interpretation, which is all parole evidence can do.

[00:05:28] Speaker 03:
But if they, I mean, you don't have evidence of what

[00:05:32] Speaker 03:
agreement you're saying they are about instead, right?

[00:05:35] Speaker 00:
And B-12 improperly tried to shift that burden to UST Global.

[00:05:40] Speaker 00:
It was B-12's burden.

[00:05:42] Speaker 00:
B-12 could have sued on the statements of work.

[00:05:44] Speaker 00:
Statements of worker contracts are fully executed.

[00:05:47] Speaker 00:
B-12 wanted to claim that the non-payment of invoices under those statements of work constituted

[00:05:53] Speaker 00:
violation of the master services agreement.

[00:05:56] Speaker 00:
It was B-12's burden to produce legally sufficient evidence that those invoices were governed and the sole testimony was it was a mistake.

[00:06:05] Speaker 00:
The statements of work should have referred to a different agreement.

[00:06:08] Speaker 00:
Parole evidence is not permitted to vary the terms of a contract.

[00:06:12] Speaker 00:
That's where you get into the doctrine of mistake, should they have chosen to pursue that.

[00:06:16] Speaker 03:
Well, I think it is, though.

[00:06:18] Speaker 03:
What a latent ambiguity is, is something that wouldn't be obvious unless you look at the pro-evidence.

[00:06:23] Speaker 03:
And this is where I think California law is very hard to understand.

[00:06:25] Speaker 03:
But I think it is California law that you can look at whether such an agreement exists in the world to figure out, oh, even though it says something, it must not have really meant it.

[00:06:36] Speaker 00:
I understand the point and I understand the breadth of parole evidence rule under California law, but that's what the doctrine of mistake is and the case that we've cited in our briefs about you cannot say that a pen is a pencil.

[00:06:53] Speaker 00:
That's not a solution to ambiguity because, again, the evidence of parole evidence has to give rise to an interpretation to which the contract is reasonably susceptible.

[00:07:04] Speaker 00:
And that was the burden of proof, not UST Global's obligation to come back and negate it.

[00:07:10] Speaker 00:
Keeping in mind, they're suing on invoices that are issued to different entities that tie into a contract that makes no reference.

[00:07:18] Speaker 00:
And there was evidence in the record that there were multiple contracts, signed and unsigned.

[00:07:24] Speaker 00:
We know you can sue on unsigned contracts.

[00:07:26] Speaker 00:
You can make equitable claims.

[00:07:29] Speaker 00:
But there was no legally sufficient evidence

[00:07:33] Speaker 00:
to tie those statements of work to evidence that the parties intended for those statements of work to be incorporated into the master services agreement.

[00:07:42] Speaker 03:
And the problem was- So do you have an explanation of what those statements of work, I mean, I don't think you dispute the work happened, and there are the statements of work, so I don't really understand what you think they were about, because you haven't shown some other agreement that had some other terms that you're really talking about.

[00:07:58] Speaker 00:
Sure, and your honor, hypothetically,

[00:08:02] Speaker 00:
You have statements of work that the parties executed.

[00:08:07] Speaker 00:
And they recite who the parties are to the agreement.

[00:08:09] Speaker 00:
And I do need to come back to Spain in terms of who the party even is to that agreement.

[00:08:14] Speaker 00:
And you discover that they point, you know, it's only the payment terms that are incorporated into the statement of work.

[00:08:21] Speaker 00:
And you point to some document and you say, oh, the payment terms are over here.

[00:08:24] Speaker 00:
The payment terms are on a napkin that we sketched out in a bar.

[00:08:26] Speaker 00:
The payment terms are in this document on the internet.

[00:08:30] Speaker 00:
The payment terms are this agreement.

[00:08:32] Speaker 00:
If that was a hole in the statement of work, that would be law relating to the statement of work.

[00:08:39] Speaker 00:
The law would look at the statement of work and say, well, if there's a failure of this term, then there are legal doctrines about where you go look to fill in that term.

[00:08:47] Speaker 00:
That is a separate issue from evidence of intent to take that fully executed agreement

[00:08:53] Speaker 00:
and incorporate it into the 2014 Master Services Agreement, which says only statements of work executed here under, remember there's a form and there's a way to do that, or the face of the document could show it.

[00:09:07] Speaker 00:
That's the failing for the contract they sued on.

[00:09:10] Speaker 00:
I can think of lots of ways you could have sued on the invoices themselves, could have sued on the statements of work, saying oh, we have a hole in the statement of work, we need to fill that.

[00:09:20] Speaker 00:
But it is a separate issue because of the way they plead this so narrowly that that let them sue in California that in this court by saying, well, it's it's all supposed to be it's all supposed to be the 2014 master services agreement, which would just throw the doctrine of mutual mistake out the window, the doctrine mutual mistake, which lets the parties vary the plain language.

[00:09:42] Speaker 00:
But you have to show by clear and convincing evidence.

[00:09:45] Speaker 02:
But did you introduce any affirmative evidence that the Spain and Media SOWs were not governed by the 2014 MSA?

[00:09:59] Speaker 00:
Yes, the statements of work themselves not only fail to evidence an intention to be bound under the 2014 Master Services Agreement,

[00:10:08] Speaker 00:
They point to some other terms.

[00:10:10] Speaker 00:
Let's just say whatever those terms are.

[00:10:12] Speaker 00:
And so the statements of work themselves, which are contracts that B-12 cannot vary, those contracts themselves are evidence that the parties did not intend to, remember, incorporate these into this separate document, which has the whole point of it is a carefully constructed way so that you know when services are under the master services agreement, what does that look like?

[00:10:35] Speaker 00:
It's a statement of work in the form attached to exhibit A.

[00:10:38] Speaker 00:
Now with regard to Spain, that problem dooms all of the invoices.

[00:10:43] Speaker 00:
But with regard to Spain, which I'll point out, 229 of the invoices at trial were Spain invoices.

[00:10:49] Speaker 00:
73 of them were media services.

[00:10:52] Speaker 00:
The Spain invoices totaled $1.129 million.

[00:10:55] Speaker 00:
75% of the judgment.

[00:10:57] Speaker 00:
With regard to this being, it's important to additionally note that Mr. Bhattacharya admitted at Excerpt of Record 584 that UST Global Inc.

[00:11:07] Speaker 00:
was not a party and had no stated obligation

[00:11:11] Speaker 00:
under that statement of work.

[00:11:13] Speaker 00:
As a matter of law in the statement of work, you're not just talking about whether the master services agreement is incorporated, you're talking about who is the party.

[00:11:21] Speaker 00:
It says UST-Spain, and it shouldn't matter who drafted these documents.

[00:11:26] Speaker 00:
There's no contra profor intimissiu in this case, but the Spain statements of work are all on B-12 letterhead, all prepared by Spain.

[00:11:34] Speaker 00:
showing U.S.T.-state as a subcontract.

[00:11:36] Speaker 03:
Can I ask, going back to just what master services agreement was being referenced, say that the statements of work had the date of the 2014 master services agreement, but with just like either one day off, like it was January 11th, 2014 and they wrote January 12th, or

[00:11:54] Speaker 03:
Or maybe it's 12th and they wrote 21.

[00:11:56] Speaker 03:
I mean, if it's a tiny typo, is your position that at that point it's not enforceable?

[00:12:00] Speaker 03:
It's the same argument because it's referring to something that doesn't exist.

[00:12:03] Speaker 00:
I think it would be relatively easy to plead mutual mistake.

[00:12:06] Speaker 00:
You plead your master services agreement.

[00:12:08] Speaker 00:
You plead your statements of work.

[00:12:10] Speaker 00:
You plead mutual mistake.

[00:12:11] Speaker 03:
But you're still saying they would lose in that case because they didn't do mutual mistake.

[00:12:15] Speaker 03:
Like basically that would be the same case in your view.

[00:12:18] Speaker 00:
I don't know that I've thought about where the line would be, Your Honor, but I believe, given that you have to vary the contract, and this contract is a bridge to the 2014 Master Services Agreement, that I think it is a problem that it is not in the form, but I think that is much closer to a typo than some completely different date, and particularly with Spain, which I would just note that

[00:12:44] Speaker 00:
not only as a matter of laws, U.S.T.

[00:12:46] Speaker 00:
Global Inc.

[00:12:47] Speaker 00:
not a party to that agreement.

[00:12:48] Speaker 00:
As a matter of fact, Mr. Bhattacharya's testimony was that he did not know who signed it.

[00:12:54] Speaker 00:
And if you do not know who signed it, you can't have a foundation for the testimony that the signatory was an authorized representative of U.S.T.

[00:13:02] Speaker 00:
Global Inc., which is stated in Section 1A.

[00:13:05] Speaker 00:
Statement of work must be signed by an authorized representative.

[00:13:09] Speaker 00:
Signature by an unauthorized representative is not.

[00:13:12] Speaker 02:
So first of all, you're into your four minutes that you want to reserve.

[00:13:15] Speaker 02:
But secondly, you made all these arguments to the jury and they ruled against you.

[00:13:20] Speaker 00:
Yes, and that is right, Your Honor.

[00:13:22] Speaker 00:
These are legal problems.

[00:13:23] Speaker 00:
These are errors of law that attempting to vary the terms of the contract

[00:13:29] Speaker 00:
with no legally sufficient evidence of authority as to Spain.

[00:13:33] Speaker 00:
When you say, I don't know who signed it, you cannot then be saying that the person was authorized.

[00:14:04] Speaker 04:
May it please the court, Thomas Allen here with my colleague Ariel Fox on behalf of Apoli B-12 Consulting.

[00:14:13] Speaker 04:
In his order denying UST Global Inc.'

[00:14:16] Speaker 04:
's renewed motion for judgment as a matter of law, that's the order they purport to challenge in this court but never actually appealed, Judge Selna correctly recognized that UST's arguments in the end boil down to a fundamental disagreement with the jury's verdict.

[00:14:33] Speaker 04:
Now the record shows this was a verdict that was reached after three days where one witness testified, Mr. Shovak Bhattacharya, B-12's founder and managing consultant.

[00:14:44] Speaker 04:
Mr. Bhattacharya testified to every element of B-12's breach of contract claim as allowed by California law, and UST Global Link called no witness to contradict anything he said.

[00:14:57] Speaker 04:
The jury believed Mr. Bhattacharya as it was entitled to do.

[00:15:01] Speaker 04:
The jury rendered verdict for B-12 and awarded damages not as some disguised claimant equity as UST argues now, but under black letter California law.

[00:15:14] Speaker 04:
Before I dive into that, I want to pause momentarily and note that we have raised an issue about this court's jurisdiction.

[00:15:21] Speaker 04:
In our view, the court need not and should not even reach UST's first issue on appeal.

[00:15:26] Speaker 03:
But it's obvious from the opening brief that they're trying to contest this order, and you've responded, so there's no prejudice.

[00:15:33] Speaker 03:
And I think we have case law saying that when it's very obvious what they're trying to do, we construe it that way.

[00:15:37] Speaker 03:
So I'm not sure this is a good argument.

[00:15:40] Speaker 04:
I understand, Your Honor.

[00:15:41] Speaker 02:
I understand that you probably don't want to waste your time on it.

[00:15:44] Speaker 04:
I understand, Your Honor.

[00:15:45] Speaker 04:
Well, on that note, Your Honor, I will move along to discussing the merits and the issues that were raised here.

[00:15:51] Speaker 04:
As I noted, this was a jury verdict.

[00:15:57] Speaker 04:
Mr. Bhattacharya testified at length.

[00:16:00] Speaker 03:
But why should it have gone to the jury at all?

[00:16:02] Speaker 03:
I mean, why wasn't this just, you've sued under some document that doesn't seem related to the proof of the work at all?

[00:16:11] Speaker 04:
Your Honor, that really goes to the heart of the dispute here.

[00:16:14] Speaker 04:
And I think that can be answered by reference to the special verdict and to the plain language of the master services agreement itself.

[00:16:23] Speaker 04:
The master services agreement, we've

[00:16:25] Speaker 04:
that we read about in the briefs talks about the statements of work.

[00:16:30] Speaker 04:
Section 1A describes the statements of work itself and says, those shall be prepared.

[00:16:37] Speaker 04:
It doesn't say who, but it says they shall be prepared.

[00:16:40] Speaker 04:
Similarly, with regard to the invoicing, the master service agreement at sections 5A and B says that B12 will invoice UST Global per a schedule.

[00:16:51] Speaker 04:
It will use UST's invoicing system or otherwise follow UST's instructions.

[00:16:58] Speaker 04:
The key here is that something that shall be prepared under a contract, something that will be done under a contract, is a matter of performance

[00:17:10] Speaker 04:
under the contract.

[00:17:11] Speaker 04:
And so the question is, did B-12 perform?

[00:17:15] Speaker 04:
That was the question submitted to the jury.

[00:17:17] Speaker 04:
It was question number three of the special verdict.

[00:17:20] Speaker 04:
And the language of that question bears repeating.

[00:17:23] Speaker 04:
The jury was asked, consistent with California law, did B-12 do all or substantially all of the significant things the contract required it to do?

[00:17:33] Speaker 04:
The jury answered yes.

[00:17:35] Speaker 04:
UST did not object to that question and UST on appeal does not challenge the sufficiency of the evidence supporting the jury's finding.

[00:17:43] Speaker 04:
As I mentioned, this is entirely consistent with California law, which says that in the context of services contracts, the law does not require strict compliance with the terms of the contract, but rather follows the substantial performance doctrine.

[00:17:55] Speaker 04:
That is why this is not an equitable claim masquerading as a breach of contract claim.

[00:18:00] Speaker 04:
It is California law.

[00:18:02] Speaker 04:
And so under that framework, Mr. Bhattacharya testified without contradiction

[00:18:07] Speaker 04:
As to all of the issues that UST Global raised with regard to the statements of work, for example, he testified that the most important thing that had to be done was that an individual statement of work be prepared for every contractor.

[00:18:20] Speaker 04:
That happened undisputably.

[00:18:22] Speaker 04:
And he testified, though, because of UST's rush, the urgency with which they wanted contractors to be dispatched to clients, that other issues, even errors in the naming the contract that typos Judge Friedland you mentioned, those could be worked out later, or maybe not at all.

[00:18:40] Speaker 04:
Those were the significant things under the contract that was B-12's responsibility to do in order to get paid.

[00:18:47] Speaker 04:
And the jury found, and it is not challenged, that B-12 did every single one of those things.

[00:18:52] Speaker 04:
the invoices that he told a similar story.

[00:18:56] Speaker 04:
He testified, again, without objection.

[00:18:58] Speaker 04:
UST never rejected any of B-12's invoices, even if they contained errors in dates.

[00:19:04] Speaker 02:
What was the stated reason for not paying the invoices at issue?

[00:19:09] Speaker 04:
Well, the record reflects that there was an ongoing discussion about that.

[00:19:15] Speaker 04:
And in fact, though, during that discussion,

[00:19:19] Speaker 04:
This is the Exhibit 20 that is referenced in UST's second issue on appeal.

[00:19:26] Speaker 04:
We introduced that at trial as evidence of UST acknowledging its debt under these invoices.

[00:19:33] Speaker 04:
And there is a dispute about that evidence, the probative value of it, most of which goes to the weight of that testimony and that exhibit rather, not its admissibility.

[00:19:43] Speaker 04:
It was only after, and this was at trial, it was only after B-12 filed suit that suddenly UST said, you know what?

[00:19:52] Speaker 04:
We don't have to pay these invoices at all, because there is a mismatch.

[00:19:55] Speaker 04:
And this particular statement of work references a master services agreement that has undisputed never existed.

[00:20:03] Speaker 04:
And the jury was entitled to hear that.

[00:20:06] Speaker 04:
And this leads me to the question of burden of proof.

[00:20:09] Speaker 03:
Yes, you're very odd.

[00:20:10] Speaker 03:
I mean, usually if you're going to do work, then you try to make sure you have a contract that says you're going to get paid.

[00:20:16] Speaker 03:
And if you somehow mess that up, then you can say there's been unjust enrichment or some equitable thing.

[00:20:21] Speaker 03:
But it seems like you missed the time deadline for that.

[00:20:24] Speaker 03:
So now you're trying to piece together like I still had a contract, but it's very hard to piece together this contract.

[00:20:31] Speaker 04:
Well, Your Honor, that's why I would submit that we have to look at this under the framework of question three and the doctrine of substantial performance.

[00:20:41] Speaker 04:
UST said that we are trying to throw out a doctrine.

[00:20:44] Speaker 04:
They are trying to move as far away as possible from the jury's answer to question three and the doctrine of substantial performance.

[00:20:51] Speaker 04:
Again, the internal

[00:20:55] Speaker 04:
documentation of the work was something that had to be performed under the contract.

[00:21:01] Speaker 01:
And so... I just want to make sure I understand your argument.

[00:21:04] Speaker 01:
You're saying that the master services agreement is the contract that's being enforced, and how would you characterize the SAWs?

[00:21:12] Speaker 04:
Well, the SOWs are attachments to that contract.

[00:21:16] Speaker 04:
And they describe the work.

[00:21:19] Speaker 04:
And the dispute here was.

[00:21:21] Speaker 01:
Are they contracts, or are they something else?

[00:21:25] Speaker 04:
Well, we did not sue for breach of the statements of work.

[00:21:30] Speaker 04:
We sued for breach of the 2014 Master Services Agreement, which contains UST's obligation to pay.

[00:21:41] Speaker 04:
One of the arguments that UST makes, and my friend Ms.

[00:21:45] Speaker 04:
Ladin was making earlier, is that they want to put a lot of weight on section 17 of the master services agreement.

[00:21:53] Speaker 04:
This is a merger clause, and it contains the executed here under language we heard a bit about before.

[00:22:01] Speaker 04:
And in that sense, it's true.

[00:22:02] Speaker 04:
A merger clause does define the outer limits of a party's agreement, but what it doesn't do

[00:22:07] Speaker 04:
is transform the performance of a contract into some other contract formation question that can therefore obviate the substantial performance doctrine under California law.

[00:22:18] Speaker 04:
But that's exactly what UST is arguing.

[00:22:21] Speaker 04:
According to them, the only way its payment obligation is triggered is if the SOWs are prepared without any errors or technical defects of any kind

[00:22:32] Speaker 04:
But that's not California law.

[00:22:33] Speaker 04:
That's not the question that was asked to the jury.

[00:22:35] Speaker 04:
It's not what the master services agreement itself says.

[00:22:38] Speaker 04:
So if I could switch gears for a moment, the question, how did the jury know that the invoices arose under the 2014 MSA when they said things like UST España, UST Media Services?

[00:22:52] Speaker 04:
Well,

[00:22:53] Speaker 04:
And that goes to counsel's connect the dots point.

[00:22:57] Speaker 04:
The jury was entitled to draw that inference from a couple of sources, the documents themselves, Mr. Bhattacharya's uncontradicted testimony.

[00:23:06] Speaker 04:
He testified that those designations were errors, and there was lengthy testimony about this and the circumstances under which those errors arose, but he also testified

[00:23:17] Speaker 04:
that the 2014 MSA, the contract we sued under, was the only contract for which these invoices were submitted.

[00:23:24] Speaker 04:
He noted that there were other invoices, I believe in exhibit 21, that contained similar errors and were paid.

[00:23:33] Speaker 04:
So that was one portion of the evidence.

[00:23:35] Speaker 04:
Another was the absence of contravening evidence.

[00:23:38] Speaker 04:
And I believe that was going to your question, Judge Wardlaw, earlier.

[00:23:41] Speaker 04:
UST, as part of its defense,

[00:23:46] Speaker 04:
tried to impeach Mr. Bhattacharya's testimony, but they also asked the jury to believe something different.

[00:23:51] Speaker 04:
They asked the jury to believe that there were

[00:23:54] Speaker 04:
other arrangements with other entities.

[00:23:57] Speaker 02:
Was there any evidence as to that?

[00:23:59] Speaker 02:
Was there any evidence as to the 2015 supposed MSA?

[00:24:05] Speaker 04:
No, Your Honor.

[00:24:06] Speaker 04:
There were exhibits 23 and 24 that UST discussed as potential candidates for that, but neither of those match up either.

[00:24:17] Speaker 04:
It's not like there was an example of

[00:24:20] Speaker 04:
this other phantom MSA out there that actually answered the question of which one of these, was it another candidate as the contract governing these invoices?

[00:24:34] Speaker 04:
It was not.

[00:24:35] Speaker 04:
And so the jury was entitled to

[00:24:37] Speaker 02:
Yeah, it seems like the trial was rather one-sided.

[00:24:40] Speaker 04:
Well, there was only one witness.

[00:24:41] Speaker 02:
And you could, I suppose, a reasonable jury could conclude, well, this is, they put on evidence of this, there's no evidence to the contrary, so we'll go that way.

[00:24:52] Speaker 02:
I mean, I don't think that would be unreasonable for the jury to do.

[00:25:00] Speaker 04:
I agree, Your Honor, and because UST... It's not the only thing they could have done.

[00:25:04] Speaker 02:
They could have found Mr. Bacharia lacked credibility.

[00:25:08] Speaker 04:
They could have, and that was their exclusive province as the fact finder.

[00:25:12] Speaker 04:
But the jury did believe him, and the jury was entitled to not believe UST's alternate hypothetical scenario because that story, if it were true, would be pretty easy for them to prove.

[00:25:24] Speaker 04:
They could have called someone to testify and say, actually, these statements of work, these invoices were governed by a different master services agreement.

[00:25:33] Speaker 04:
They could have introduced

[00:25:34] Speaker 04:
other contracts.

[00:25:36] Speaker 04:
They didn't.

[00:25:36] Speaker 04:
And so the jury was entitled to infer from the absence of any of that evidence that Mr. Bhattacharya was credible.

[00:25:43] Speaker 04:
Mr. Bhattacharya's account of what happened was credible and therefore they believed him.

[00:25:50] Speaker 04:
Now this does not

[00:25:51] Speaker 04:
attempt to flip the burden of proof.

[00:25:53] Speaker 04:
I feel like I must address this briefly.

[00:25:56] Speaker 04:
To be clear, we are not saying that UST, as defendant, bore a burden of proof.

[00:26:02] Speaker 04:
B-12 was the plaintiff.

[00:26:03] Speaker 04:
B-12 bore the burden of proof.

[00:26:05] Speaker 04:
B-12 met its burden of proof.

[00:26:10] Speaker 04:
And as we were discussing a moment ago, UST, asserting its defense, did not call any witnesses.

[00:26:20] Speaker 04:
It attempted to impeach Mr. Bhattacharya's testimony and credibility, and then it asked the jury to believe a different story.

[00:26:27] Speaker 04:
If USTE wanted the jury to believe that different story, then they needed to substantiate it.

[00:26:33] Speaker 04:
But the jury, as you say, Judge Wardlaw, was entirely entitled and within his rights to disbelieve that story based on the absence of that evidence.

[00:26:45] Speaker 04:
If I might, I might switch gears and address very briefly the other two issues that UST has raised in its brief with regard to the redacted email exhibit.

[00:26:56] Speaker 04:
There was no abuse of discretion here.

[00:26:59] Speaker 04:
Among other reasons, as we explained in the brief, UST itself moved to exclude evidence of unrelated disputes and cannot now assert an abuse of discretion when the trial court did essentially what it asked them to do, what they asked him to do.

[00:27:16] Speaker 04:
And this redacted information does concern separate disputes with another B-12 entity.

[00:27:21] Speaker 04:
It's irrelevant.

[00:27:23] Speaker 04:
And so there was no abuse of discretion.

[00:27:26] Speaker 04:
Similarly, with regard to closing argument,

[00:27:28] Speaker 04:
by B-12's trial counsel, that argument was entirely fair game, criticizing, again, this alternate theory of other contracts with other entities.

[00:27:39] Speaker 04:
And Judge Selna had a front row seat to the entire trial.

[00:27:42] Speaker 04:
He was best equipped to assess any potential prejudice or errors and acted well within his discretion.

[00:27:53] Speaker 04:
So in the end, I would leave the court with

[00:27:56] Speaker 04:
where I began, the jury was entitled to believe Mr. Bhattacharya, the only witness to testify, no matter how much UST disagrees.

[00:28:05] Speaker 04:
The jury was entitled to reject this alternate theory because there was no evidence to support it.

[00:28:09] Speaker 04:
And though their argument is wrapped in the mantle of fidelity to the text of the contract, the plain language of the contract, UST asks this court to second guess and intrude onto the jury's province as fact finder.

[00:28:22] Speaker 04:
We would respectfully submit the court should decline that invitation.

[00:28:26] Speaker 04:
And if the court has no other questions, I will simply close by saying for these reasons and those stated in our brief, we respectfully request that the court affirm the judgment below.

[00:28:39] Speaker 02:
Thank you.

[00:28:49] Speaker 00:
Thank you.

[00:28:50] Speaker 00:
This case is not about whether services were performed and invoices were submitted or even approved, though we challenge the sufficiency of the evidence of that.

[00:28:59] Speaker 00:
The question is, Mr. Allen suggests that B-12 had no burden, that Mr. Bhattacharya could just get on the stand and say whatever he wanted to, and if no one controverted that, they win.

[00:29:10] Speaker 00:
That's not the law.

[00:29:12] Speaker 00:
B-12's burden was to adduce legally sufficient evidence.

[00:29:16] Speaker 00:
And by relying on parole evidence and testimony without foundation, B-12 failed to meet its burden that the contract they chose to sue on

[00:29:26] Speaker 00:
was violated by non-payment of the invoices.

[00:29:29] Speaker 00:
We cited the KST case as a good example.

[00:29:32] Speaker 00:
If you're going to incorporate a document into another one, it must be clear.

[00:29:36] Speaker 00:
We cited Tahoe National Bank and Casa Herrera, black-letter law about parole evidence.

[00:29:41] Speaker 00:
These statements of work are contracts.

[00:29:43] Speaker 00:
There is no doubt they are intervening contracts that are the bridge that, when fully executed by an authorized signatory, are a bridge to the 2014 MSA.

[00:29:52] Speaker 00:
These contracts must be varied for B-12 to win

[00:29:55] Speaker 00:
There was no ambiguity testimony permitted about anything other than 33 invoices on the timing.

[00:30:02] Speaker 00:
But without incorporation, suing on invoices that don't even reflect a statement of work where UST Global Inc.

[00:30:09] Speaker 00:
is a party and invoices are addressed to an entity in Spain to suggest that non-payment of those invoices lets the jury just conclude, well, huh, they must arise under the 2014 Master Services Agreement.

[00:30:20] Speaker 00:
That's the legal gap.

[00:30:22] Speaker 00:
that caused B-12 to fail to meet its burden of proof, asserting the wrong claims in this case, and we ask that the judgment be reversed.

[00:30:29] Speaker 02:
Thank you very much, counsel.

[00:30:31] Speaker 02:
B-12 Consulting versus UST Global is submitted, and the court will be in recess for five minutes.

[00:30:38] Speaker 03:
All rise.

[00:30:47] Speaker 02:
This court stands in recess for five minutes.