Diesel Electric Sales & Service, Inc. v. Marco Marine San Diego, Inc.

Diesel Electric Sales and Service, Inc. (Diesel) appeals a nonsuit judgment in favor of Marco Marine San Diego, Inc. (Marco or, alternatively, Marco San Diego) which dismissed Diesel’s action against Marco alleging secret, unearned discounts in violation of Business and Professions Code section 17045. After Diesel completed presenting its evidence at trial, the court granted Marco’s motion for nonsuit upon the grounds Diesel failed to present substantial evidence that Marco’s discounts were secret and unearned, that Marco purchased on like terms and conditions, that there was injury to competition, and that it suffered an injury. Diesel contends it presented substantial evidence in support of all elements of a section 17045 violation and, as a result, the court’s nonsuit order against it constitutes reversible error. It also contends the court erred in excluding testimony by its damages expert. Because we conclude Diesel’s evidence, when viewed in a light most favorable to it, establishes sufficient evidence of a prima facie violation of section 17045, we hold the court erred in granting the nonsuit motion and, as a result, the judgment in favor of Marco must be reversed.…