Michelson v. Ayzenberg CA2/1

Filed 10/30/26 Michelson v. Ayzenberg CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JACOB MICHELSON, B347913 consolidated with B349408 Plaintiff and Respondent (Los Angeles County v. Super. Ct. No. 20VECV01349) MICHAEL AYZENBERG, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Huey P. Cotton, Judge. Affirmed. Munck Wilson Mandala and Marina V. Bogorad for Defendant and Appellant. Law Offices of Matthew C. Mickelson and Matthew C. Mickelson for Plaintiff and Respondent. _______________________  In 2014, plaintiff Jacob Michelson and defendant Michael Ayzenberg started exporting nutritional supplements to Russia together under the name Elixir. The two men had known each other for decades and did not have a written contract specifying the terms of their arrangement. In January 2018, Michelson, who was based in the United States, concluded that Ayzenberg, who spent much of his time in Russia, had been failing to pay him the full amount to which he was entitled, and the business ended. In November 2020, Michelson sued Ayzenberg, alleging causes of action for breach of contract and breach of fiduciary duty, among other claims. A jury agreed with Michelson and awarded him $634,000 in damages. Ayzenberg now appeals. He contends the trial court erred by overruling his demurrer and denying his motion for summary judgment, both of which argued Michelson’s suit was time barred, despite his failure to present any statute of limitations defense to the jury at trial. He also argues the court erred by excluding certain evidence from his expert regarding Elixir’s accounting and by instructing the jury regarding the inferences it could draw if it found the destruction of evidence. Finally, he claims no substantial evidence supported the amount of damages, and that we should strike or otherwise reduce the court’s award of prejudgment interest. We perceive no prejudicial error and affirm. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS Given our standard of review, we summarize the pertinent facts in the light most favorable to the jury’s verdict. (Green Wood Industrial Co. v. Forceman Internat. Development Group, Inc. (2007) 156 Cal.App.4th 766, 770, fn. 2.) We include facts about Ayzenberg’s defense to provide context for his arguments. 2  Michelson testified that he and Ayzenberg set up Elixir as a “50/50 partnership.” Michelson owned a business called Nutricare that bought nutritional supplements from a United States-based supplier. Michelson exported the supplements to Latvia, where they were packaged for the Russian market and sold to a distributor called Argo. Michelson hoped that by partnering with Ayzenberg, who had relationships with additional distributors, he could expand the scope of the business. But in recognition of the fact that Michelson was bringing him a fully developed business, Ayzenberg agreed to pay him $20,000 per month at the beginning. Ayzenberg denied he and Michelson were full partners. Instead, he testified that Michelson approached him asking for help selling supplements and registering them for sale in Russia. Michelson then proposed that Ayzenberg invest in Nutricare, with an option to later become a full partner in exchange for an investment of $500,000 more. Ayzenberg testified that he initially loaned Elixir $152,000. Ayzenberg acknowledged he agreed to pay Michelson $20,000 per month as Elixir was getting established to help Michelson get by, but only “[i]f I can afford it.” Both sides agree that the two began selling supplements under the name Elixir in December 2014, and that sales did not go as well as hoped. Ayzenberg testified that he decided after a few months not to become a full partner, and instead continued the business only to get back the money he put into it. As money came in, however, he used it to pay for new inventory rather than paying himself back for the loan. The situation continued into 2016, with Ayzenberg unable to make a profit. Michelson testified that Ayzenberg complained frequently through 2015 and 2016 about how poorly the business was doing, 3 and told Michelson at one point that Michelson owed him around $140,000. The two planned to sell the remaining product, distribute the proceeds, and separate on good terms. Michelson did not suspect Ayzenberg of misconduct at this point. In 2016, at Michelson’s request, Ayzenberg began providing him with monthly reports on the business prepared by Marina Churupityak, who managed the day-to-day operations of Elixir in Russia. Michelson found these reports “very confusing,” as they did not clearly show Elixir’s profits and losses. Michelson did not have access to Elixir’s bank accounts, and had no documentation showing his ownership of the corporation in Russia. In March 2017, Michelson emailed Ayzenberg requesting an accounting. Michelson testified that he wanted to dissolve the partnership and divide the proceeds, but Ayzenberg told him he could not because Elixir still owed Ayzenberg a lot of money. In January 2018, Michelson received an email from Churupityak stating that Ayzenberg had transferred $116,700 from Elixir to Ayzenberg’s United States-based company over the previous two months. Michelson confronted Ayzenberg about the taking of these funds. According to Michelson, Ayzenberg said that Michelson was not a partner in Elixir, and he was not entitled to the money from it. Michelson later tried to get in touch with Ayzenberg in Russia, but Ayzenberg did not respond. Michelson hired an accounting firm to audit Elixir’s books, but Ayzenberg rebuffed the firm’s requests. Michelson subpoenaed Ayzenberg’s bank records and found approximately $141,000 in wire transfers between December 2017 and June 2018 from Elixir to Ayzenberg’s own company, including more than $24,000 in transfers not disclosed in the January 2018 email. 4  Ayzenberg acknowledged making the transfers, but claimed that he made them to buy more product for Elixir to sell. He testified that, under Russian law, it is illegal for a business to transfer hard currency out of the country unless it receives valuable goods in return. Ayzenberg claimed to have transferred the money to his own company to avoid using agents and paying extra fees for transferring money. Elixir, which had been incorporated in Russia and was formally owned by Ayzenberg’s wife,1 continued in existence with Churupityak as CEO, but after January 2018, it no longer sold any supplements to Argo. After the joint business ended, Michelson was able to recover about 36,000 bottles of supplements ready for sale in Moscow, as well as 25,545 additional bottles in Latvia. With this new supply and a continuing relationship with his prior Russian distributor, Michelson was able to re-enter the supplements business for himself. The value of the unsold bottles was $119,000. In November 2020, Michelson filed suit against Ayzenberg and two other codefendants in the Los Angeles County Superior Court. After the trial court sustained the defendants’ demurrer with leave to amend, Michelson filed the operative first amended complaint. It listed Ayzenberg as the sole defendant, and alleged causes of action for breach of contract, accounting, breach of fiduciary duty, unjust enrichment, and declaratory relief. Michelson alleged that his arrangement with Ayzenberg had 1 Michelson acknowledges he never had a formal ownership stake in Elixir, but testified Ayzenberg told him this was required because Russian law forbids Americans from owning businesses. 5 been a full partnership, and that Ayzenberg had underreported the partnership’s revenues, inflated its expenses, and then emptied Elixir’s bank accounts when Michelson confronted him. Ayzenberg again demurred, but this time the trial court overruled the demurrer. Ayzenberg filed a motion for summary judgment, which the trial court again denied. Ayzenberg’s primary argument both in the second demurrer and in the motion for summary judgment was that Michelson’s claims were time- barred. We provide additional detail on the parties’ statute of limitations arguments in part A of the Discussion, post. At trial, Ayzenberg did not present any defense based on the statute of limitations and did not request any jury instructions on such a defense. Each side presented expert testimony to the jury from an accountant regarding Elixir’s finances. Because the monthly and annual statements Ayzenberg provided were not in a standard format, “didn’t make any sense,” and did not match Elixir’s bank statements, Michelson’s expert, Ruslan Magidov, used the bank statements and portions of the monthly and annual statements to reconstruct Elixir’s finances. He calculated sales based on the invoices from the domestic supplier, which showed the number of bottles ordered. Magidov determined that Elixir sold 606,773 units at an average price of $5.50, for total sales of $3,337,252. After subtracting the cost of goods sold and other expenses, Magidov concluded Elixir had earned $1,286,429 in net income, of which Michelson was entitled to half, or $643,215. Because Ayzenberg had previously paid Michelson $119,000 that was not reflected in Ayzenberg’s records regarding what he had been paid, Magidov reduced the amount owed to Michelson to $524,063. Magidov also found Michelson had paid Elixir 6 $221,564 for which he had not been reimbursed, and concluded that Ayzenberg owed Michelson a total of $745,627. The trial court restricted the testimony of the defense expert, Tatyana Skevin, to the extent her estimates were based on documents that had not been produced to Michelson or submitted in a timely manner as exhibits. These included portions of Skevin’s written report, which Ayzenberg’s attorney submitted during trial the day before Skevin’s testimony, and which Michelson’s attorney said he had not yet seen when she took the stand. It also included Elixir’s purported invoices to Argo, which Ayzenberg was unable to show during trial had been produced or otherwise provided to Michelson’s attorney. Skevin was still able to testify about Elixir’s finances, however, and she estimated Elixir had brought in about $2 million in revenues during the partnership. She believed Magidov had exaggerated Elixir’s profits because he treated 2014 as a full year of sales, when in fact Elixir had not done any business until December of that year. In Skevin’s view, Elixir’s overall profits were much lower than Magidov estimated. Skevin concluded that Michelson received over $400,000 in proceeds. Ayzenberg made $245,206, but he contributed $152,000, leaving a net distribution of only around $93,000 from the company. Thus, in Skevin’s view, Michelson had made more from Elixir than Ayzenberg did. The court adopted Ayzenberg’s proposed general verdict form, which gave the jury two options: to find in favor of Michelson or Ayzenberg and, in the former case, to choose an amount of damages. The jury found in favor of Michelson and awarded him $634,000 in damages. The trial court thereafter awarded prejudgment interest on that amount. Ayzenberg filed a timely notice of appeal from the judgment. 7  DISCUSSION A. Statute of Limitations Ayzenberg argued both in his demurrer and in his motion for summary judgment that Michelson’s claims were time-barred. He now argues the trial court erred by denying those motions. We conclude Ayzenberg forfeited these claims by failing to pursue them at trial. 1. Relevant Trial Court Proceedings In his demurrer, Ayzenberg argued that Code of Civil Procedure section 339, subdivision 1,2 applied to all of Michelson’s causes of action. That statute states that, with exceptions not relevant here, “[a]n action upon a contract, obligation or liability not founded upon an instrument of writing” must be commenced “[w]ithin two years.” (Ibid.) Because Michelson alleged in his complaint that he had found out in early 2018 that Ayzenberg had withdrawn money from Elixir’s bank account, but had not filed suit until November 2020, Ayzenberg alleged the suit was time-barred. In his opposition to the demurrer, Michelson did not deny that a two-year statute of limitations applied, but argued that the statute was tolled under section 351 during the times when Ayzenberg was located in Russia. Section 351 provides that when a defendant leaves California, “the time of his absence is not part of the time limited for the commencement of the action.” (Ibid.; accord, Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 643 [“tolling under section 351 for a defendant’s absence from California is of general 2 Unspecified statutory references are to the Code of Civil Procedure. 8 applicability”].) Ayzenberg filed a reply brief arguing that the statute of limitations was not tolled because Michelson had not affirmatively alleged in the complaint that Ayzenberg was out of California. The trial court agreed with Michelson and overruled the demurrer. Ayzenberg later filed a motion for summary judgment arguing once again that Michelson’s claims were time-barred. This time, he claimed that Michelson had been aware of the facts underlying his claims long before he discovered the bank withdrawals. In particular, Ayzenberg pointed to communications between Michelson and Ayzenberg from 2016 and 2017. In July 2016, Michelson wrote to Ayzenberg requesting an accounting, complaining that Ayzenberg did not communicate regularly about Elixir’s cash flow, and suggesting a written stipulation of a separation of the partnership. Ayzenberg responded by “denying ‘a need for [an] attorney to separate’ ” the partnership, and by demanding that Michelson pay back $140,000 that Ayzenberg had invested in the company with interest. In May 2017, Michelson again wrote to Ayzenberg complaining of Ayzenberg’s failure to report and asking him to wire money. In his opposition, Michelson argued that a four-year rather than a two-year statute of limitations applied. In Michelson’s view, the gravamen of the case was not breach of contract but breach of fiduciary duty, a cause of action subject to section 343’s residual four-year statute of limitations. (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 606.) He also argued that the issue of when he became aware or should have become aware of the essential facts was an issue for the jury, and that the limitations period was tolled under section 351. Once again, the trial court 9 agreed with Michelson and denied the motion for summary judgment. The court concluded that the limitations period for breach of fiduciary duty was four years, that the limitations period for the other causes of action was tolled while Ayzenberg was outside California, and that there were triable issues of fact as to when Michelson knew or should have known the facts underlying his causes of action. As already noted, at trial Ayzenberg did not request a jury instruction on the statute of limitations and did not assert the issue as a defense. 2. Forfeiture Michelson contends Ayzenberg forfeited any challenge to the trial court’s rejection of his statute of limitations defense by failing to litigate the issue at trial. “There is typically no basis for a postjudgment appeal of an order erroneously denying summary judgment or summary adjudication; such an order is generally considered harmless error after a full trial covering the same issues.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 10:385.) The same is true for an order overruling a demurrer; it “ ‘does not constitute prejudicial error if the same question was subsequently decided adversely to the moving party after a trial on the merits.’ ” (Medina v. St. George Auto Sales, Inc. (2024) 103 Cal.App.5th 1194, 1206.) Ayzenberg elected not to litigate the issue of the statute of limitations after the denial of his pretrial motions. The failure to assert the statute of limitations as a defense at trial forfeits the issue. (Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1232 [“If [the defendant] thought the claims on the policies were time barred, it was required to offer the appropriate jury 10 instructions to the trial court in order to preserve the issue for appeal”]; accord, Trabuco Highlands Community Assn. v. Head (2002) 96 Cal.App.4th 1183, 1192, fn. 10.) The logic behind this rule is straightforward in a case like this one. Michelson, as the party alleging delayed discovery of the facts underlying his causes of action, bore the burden of proof on that issue. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832.) Because Ayzenberg did not assert the statute of limitations as a defense at trial, Michelson had no reason to introduce evidence regarding when his claim accrued. To reverse the judgment on the ground that Michelson knew or should have known his claims accrued outside the statute of limitations when that issue was not litigated at trial would unduly prejudice him. Ayzenberg argues that one of his claims is not forfeited because it presents a purely legal question—whether tolling under section 351 is constitutional as applied to this case. Although we have discretion to address a legal question for the first time on appeal, that discretion extends to “ ‘only a legal question determinable from facts that are (1) uncontroverted in the record and (2) could not have been altered by the presentation of additional evidence.’ ” (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 699.) Neither criterion exists here. The evidence adduced at trial points in different directions as to when Michelson’s claims accrued, and regardless of those facts his breach of fiduciary duty claim remained timely regardless of section 351 given its lengthier limitations period over that applicable to oral contract claims. Further, because the jury was not asked to resolve any questions regarding the statute of limitations, Michelson did not have the opportunity to present additional evidence relevant to accrual. 11 He also did not have the opportunity to present evidence regarding the applicability of section 351. Section 351 is not facially unconstitutional. (Arrow Highway Steel, Inc. v. Dubin (2020) 56 Cal.App.5th 876, 887.) Tolling under that statute only “violates the dormant commerce clause as applied to a defendant who moved out of state to operate a business engaged in interstate commerce.” (Id. at p. 889.) Tolling under section 351 remains constitutionally appropriate for the duration of out-of- state travel unrelated to interstate commerce. (Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1283.) Because the jury was not asked to resolve the reasons for Ayzenberg’s travel, Michelson did not have the opportunity to present evidence relevant to that question. We also reject Ayzenberg’s contention that Michelson “waived any ‘waiver’ challenge to the demurrer ruling” (boldface and capitalization omitted) by focusing in his appellate briefing only on the motion for summary judgment. It is Ayzenberg’s burden as the appellant “to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Michelson’s failure to argue specifically for forfeiture as to the demurrer ruling does not shift that burden. B. Jury Instruction Michelson filed his suit in November 2020. Two years before that, in 2018, Michelson’s attorney had notified Elixir of the dispute and requested that the company maintain its records. Nevertheless, on May 11, 2022, Churupityak, acting on behalf of Elixir, signed an agreement with a contractor to shred unspecified documents. Three weeks later, the contractor 12 provided Elixir with a disposal certificate certifying that “paper documents received from [Elixir] in the amount of up to 500 kg have been shredded, processed, and mixed with other paper, rendering them unusable as originals.” Both at trial and on appeal, the parties have disagreed as to the significance of Elixir’s actions. Michelson’s attorney argued to the jury that “[k]ey evidence . . . was destroyed” when the documents were shredded. Ayzenberg claims this is a canard. He notes that Churupityak testified that Elixir kept electronic copies of all the documents that were shredded, and that Russian law permitted the destruction of hard copies of documents after three or five years. During the trial, both sides submitted proposed jury instructions that included an instruction based on BAJI No. 204, which pertains to the willful suppression of evidence. As far as we are aware, the parties did not discuss the propriety of the instruction on the record, and Ayzenberg never objected to its inclusion. The trial court gave the requested instruction, which stated, “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.” Ayzenberg now contends the trial court erred by issuing the instruction because there was no substantial evidence that he or Elixir destroyed evidence. We agree with Michelson that Ayzenberg forfeited any claim of error by including BAJI No. 204 in his jury instructions. When “both sides requested [an] instruction[, w]e look no further.” (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 255.) Furthermore, the instruction did not misstate the law on spoliation. At most, assuming Ayzenberg is 13 correct regarding Elixir’s document retention policies, it was inapplicable to the case. “[H]is failure to object under these circumstances was a waiver.” (Bisno v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1555, fn. 14; accord, Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 7.) C. Exclusion of Defense Expert Evidence Ayzenberg contends the trial court erred by restricting his accounting expert, Skevin, from relying in her testimony on evidence that Michelson claimed was never produced to him in discovery or that was given to Michelson after trial began only the day before Skevin testified. The trial court did not abuse its discretion in its evidentiary rulings based on Ayzenberg’s violation of these discovery and exhibit deadlines. Ayzenberg’s appellate briefing describes the trial court’s ruling as the “wholesale exclusion” of his expert’s analysis, but this is a gross caricature of what actually occurred. The record shows Skevin was able to offer her own estimate of Elixir’s total sales as “about $2 million,” significantly lower than the estimate of $3,337,252 offered by Michelson’s accounting expert Magidov. Skevin also sharply criticized Magidov for underestimating Elixir’s cost of goods sold, and for overestimating Elixir’s sales in 2014. She noted that Magidov attributed a full year of sales to 2014 even though the business began operating in December. Without that boost, and assuming all of Magidov’s other numbers were accurate, Elixir’s profits would have been only $2,503,069, and its total profits would have been $918,496. In Skevin’s view, Elixir simply made too little money for Michelson to be entitled to as much in unpaid profits as Magidov claimed. The trial court did place some restrictions on Skevin’s testimony based on Michelson’s objections. The court forbade 14 Ayzenberg’s attorney from displaying portions of Skevin’s reports to the jury because, in violation of the court’s exhibit exchange order, those reports had been submitted only one day before she testified and after trial had begun, and Michelson’s attorney said he had not seen them. But the court still allowed Skevin to refer to those documents in “generalities.” The court also barred Skevin from referring to Elixir’s invoices to Argo after Michelson’s attorney said those invoices had never been produced. Skevin had used those invoices to calculate the average sale price of Elixir’s supplements as less than $4.50 per bottle. Because that calculation was based on documents the court ruled inadmissible, the court struck any reference to the $4.50 figure. Ayzenberg does not dispute that his expert’s reports were submitted in an untimely manner. He focuses on the invoices Skevin used as a basis for her calculations, claiming the court erred by restricting Skevin’s testimony because the information from the invoices was included in an exhibit (No. 22a) that was admitted. This is only partly true. Exhibit No. 22a, which was admitted into evidence at Michelson’s request, contains records of the amounts Argo paid Elixir, but it does not specify the number of bottles sold or the cost of each type of bottle. Skevin relied on the latter evidence to estimate the average cost per bottle. In other words, without the invoices, Skevin did not have the information needed to estimate the average cost per bottle. The court did not stop Skevin from testifying that Elixir’s total sales were about $2 million, a number she apparently derived from exhibit No. 22a, and it did not err in barring her from testifying to the average cost per bottle based on documents unavailable for the court’s review at the time of trial. 15  Ayzenberg argues that even if the underlying documents were inadmissible, an expert may rely on inadmissible documents as a basis for her opinion (Evid. Code, § 801, subd. (b); Zuniga v. Alexandria Care Center, LLC (2021) 67 Cal.App.5th 871, 885- 888). He also argues the testimony should have been admissible as impeachment, as a party may call an unlisted expert to testify to impeach the opposing party’s expert. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 924). But this case goes far beyond those examples, as Ayzenberg sought to introduce expert testimony based on documents without showing that the documents were authentic or had been disclosed to the opposing party.3 We review a trial court’s ruling excluding or limiting the scope of expert testimony for abuse of discretion (Bonds v. Roy (1999) 20 Cal.4th 140, 149; Richard v. Union Pacific Railroad Co. (2024) 105 Cal.App.5th 1263, 1277; Kennemur, supra, at p. 926), and we find no error under that standard. 3 During the trial, the court asked Ayzenberg’s attorney for proof that the Elixir invoices had been disclosed to the opposing side. Ayzenberg’s attorney was unable to provide proof, and the trial court thus forbade Skevin from testifying on the basis of the invoices. After the trial ended, Ayzenberg’s attorney submitted a declaration in conjunction with a motion for a new trial stating that she sent copies of the invoices to Michelson’s attorney during discovery. The trial court did not abuse its discretion by rejecting that submission as untimely. As the court stated in its order denying the new trial motion, “Litigants cannot simply offer evidence when it is convenient to do so and then offer it in the form most favorable to the party controlling the authenticity of the evidence.” 16 D. Substantial Evidence of Damages Ayzenberg argues the damages award is unsupported by substantial evidence because Michelson admitted in an interrogatory that he received over $600,000 in aggregate payments from Ayzenberg, but the jury’s verdict is inconsistent with this admission. Although Ayzenberg frames his challenge as one for substantial evidence, he does not in fact deny that Michelson produced sufficient evidence other than the interrogatory response to support his claim of damages. Ayzenberg’s claim is that the factfinder was dutybound to disregard that other evidence given the discovery response. In response to Ayzenberg’s interrogatories, Michelson stated he received 40 payments from Ayzenberg between October 2014 and December 2017 that amounted to $614,282.23. In addition, Magidov calculated that Elixir’s gross sales during the partnership amounted to $3,337,252, and that its overhead expenses were $1,584,573. This would yield total profits of $1,752,679. After subtracting $204,355 to account for the unsold inventory Ayzenberg returned to Michelson after the partnership ended, this left $1,548,324 in gross profits, or $774,162 per partner. If Michelson, by his own account, received $614,282.23 in aggregate payments from Ayzenberg, then, according to Ayzenberg, the maximum jury verdict should have been $159,879.77. The problem with this analysis is that Michelson, in answering the interrogatory, did not say that all the payments represented distributions of profits in Elixir. The interrogatory asked Michelson to “list any and all [of] the amounts of money that you received from” Ayzenberg (capitalization omitted). Michelson listed the amounts he received without specifying why 17 the payments were made. When asked about the payments during the trial, Michelson testified that he received $146,000 in reimbursements from money he paid to Elixir before the partnership started, and that some of the $614,282.23 represented reimbursements. “ ‘[A]dmissions against interest have a very high credibility value’ and are ‘entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.’ ” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.) If a plaintiff testifies at trial on a key point in a way that contradicts his deposition testimony without explanation, the court may grant a motion for nonsuit on the ground of lack of substantial evidence. (Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 160.) But that is not what happened here. Michelson’s trial evidence did not necessarily contradict his interrogatory responses, and in his trial testimony he explained the arguable inconsistency at least in part. This “created a fact issue” for the jury. (Ibid.) During closing arguments, Ayzenberg’s attorney used Michelson’s acknowledgement of the payments he received to argue that Michelson had not sustained damages, but the jury evidently rejected that argument. We must defer to the jury’s decision on that point. Ayzenberg argues the jury’s verdict was inconsistent with the evidence in several other respects. He argues Magidov’s estimate of an average sale price of $5.50 was excessive, that he assumed Elixir sold supplements that would not have arrived in Russia until after the partnership ended, that Magidov treated unsold inventory as sold, and that all the money Michelson received from Elixir should be deemed part of his profits. In short, Ayzenberg attempts to reargue points that could have been 18 raised before the jury. But our role is not as a second jury, and we do not “ ‘reweigh the evidence, redetermine the credibility of the witnesses, or resolve conflicts in the testimony.’ ” (Slone v. El Centro Regional Medical Center (2024) 106 Cal.App.5th 1160, 1173.) In any event, substantial evidence supported the jury’s verdict. When reviewing for substantial evidence, “we accept all evidence that supports the judgment, disregard contrary evidence, and draw all reasonable inferences to uphold the judgment.” (Slone v. El Centro Regional Medical Center, supra, 106 Cal.App.5th at p.1173.) Magidov calculated that Michelson was owed $745,627 in unpaid profits and reimbursements. The assumptions underlying Magidov’s calculation were reasonable in light of Elixir’s incomplete and difficult-to-understand records. The award of $634,000 differs from Magidov’s estimate, but “[w]here the fact of damages is certain, the amount of damages need not be calculated with absolute certainty. [Citations.] The law requires only that some reasonable basis of computation of damages be used, and the damages may be computed even if the result reached is an approximation.” (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 873.) E. Prejudgment Interest 1. The General Verdict Did Not Preclude Prejudgment Interest The trial court awarded Michelson $273,575.50 in prejudgment interest under Civil Code section 3287, subdivision (b), which allows courts to award prejudgment interest for unliquidated contract claims. (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 574.) Michelson sought 19 damages both for breach of contract and breach of fiduciary duty, and as already mentioned, the general verdict form did not require the jury to specify the theory or theories under which it awarded damages. In its decision awarding prejudgment interest at the 10 percent interest rate set forth in Civil Code section 3289, subdivision (b), the trial court stated that “at bottom plaintiff and defendant had gone into business together, and that Ayzenberg had shorted him of the profits and reimbursements that he was due. This was both a breach of contract and a breach of fiduciary duty. The damages award is supported by ample evidence of breach of contract.” Ayzenberg contends this was error. Because the plaintiff bears the burden of showing his entitlement to prejudgment interest (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 660), and the verdict does not show how much, if any, of the award was based on breach of contract, Ayzenberg argues the trial court should not have awarded interest. Our Supreme Court has held that the lack of specific findings by a jury as to the basis of its award does not disqualify a plaintiff from prejudgment interest. (Lakin v. Watkins Associated Industries, supra, 6 Cal.4th at pp. 661-662.) Instead, the apportionment of damages is the “kind of factual determination [that] lies in the province of the trial court.” (Id. at p. 661.) Lakin concerned Civil Code section 3291, which allows prejudgment interest for personal injury damages, and the parties disagreed over how much of the verdict could be attributed to personal injury. The court explained that “special findings ‘are not necessarily the sole means to determine whether the jury awarded . . . damages for personal injuries and, if such damages were awarded, their amount. Facts and circumstances 20 peculiar to [the] case, possibly including such considerations as the parties’ theories of the case, uncontroverted evidence or jury instructions, may permit determination of the fact and amount of personal injury recovery.’ ” (Id. at pp. 661-662.) In this case, the trial court found that Ayzenberg, by underpaying Michelson, was liable both for breach of contract and for breach of fiduciary duty. Because breach of contract alone supported the full amount of the award, Ayzenberg was liable for prejudgment interest on the entire amount. A prejudgment interest “award ‘will be upheld if it is based on a “reasoned judgment” ’ ” (Gebert v. Yank (1985) 172 Cal.App.3d 544, 555), and we find no abuse of discretion here. Ayzenberg cites several cases in support of his position, but we find them unpersuasive. He cites Stein v. Southern Cal. Edison Co. (1992) 7 Cal.App.4th 565 for the proposition that he “was entitled to have a jury determine prejudgment interest” (id. at p. 572), but he omits the next three words of the quote: “under section 3288.” (Ibid.) This refers to Civil Code section 3288, which allows for prejudgment interest on noncontractual claims “in the discretion of the jury.” Civil Code section 3287 includes no equivalent language. Ayzenberg also cites two federal cases where the circuit court found the district court did not abuse its discretion by denying prejudgment interest. In Landes Const. Co., Inc. v. Royal Bank of Canada (9th Cir. 1987) 833 F.2d 1365, the court stated that if the plaintiff “wished to ensure prejudgment interest for an award based on the difference between the purchase price of the property and its fair market value in 1981, it should have agreed to the use of a special verdict.” (Id. at p. 1375.) This implies only that the plaintiff would have had an easier time proving an entitlement to 21 prejudgment interest with a special verdict form, not that such a verdict is required. In Daniels v. Pipefitters’ Ass’n Local Union No. 597 (7th Cir. 1991) 945 F.2d 906, which did not involve California law, the court found no abuse of discretion in denying prejudgment interest “[b]ecause the district judge ha[d] no means to parse the elements of the general verdict.” (Id. at p. 925.) That has no application here, where the trial court found that a single course of conduct by Ayzenberg constituted both breach of contract and breach of fiduciary duty. 2. The Damages Were Not Too Uncertain for Prejudgment Interest Next, Ayzenberg argues the trial court erred by awarding prejudgment interest because the amount of damages was too uncertain. We disagree. Uncertainty of damages does not preclude prejudgment interest under Civil Code section 3287, subdivision (b). To the contrary, “the intent of [Civil Code] section 3287[, subdivision (b) was] to enable trial courts to award prejudgment interest despite the uncertain amount owed on a contract claim for unliquidated damages.” (Hewlett-Packard Co. v. Oracle Corp., supra, 65 Cal.App.5th at p. 576, italics omitted.) Prejudgment interest under the statute is not automatic but is subject to the trial court’s discretion. This “ ‘discretion . . . was designed to allow trial courts flexibility in circumstances . . . where the exact amount of damage is in dispute.’ ” (Ibid., italics omitted.) In Hewlett-Packard, the trial court cited several factors in deciding not to award prejudgment interest. One of those factors was the “ ‘highly contested and uncertain’ damages.” (Id. at p. 577.) The Court of Appeal held that the trial court did not abuse its discretion by considering the relevant factors (id. at p. 581), but 22 nothing in the case suggests that uncertainty of damages precludes prejudgment interest. Ayzenberg suggests another single factor makes prejudgment interest inappropriate: that he was involved in a bona fide dispute. This factor originates in A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, where the trial court cited several factors in favor of awarding interest under the statute. The court stated tha