Behne

MEMORANDUM *

After a jury trial, the district court entertained defendant Microtouch Systems’ (“Microtouch”) motions for judgment as a matter of law and new trial and plaintiff Alisa Behne’s motion for attorney’s fees. The district court granted in part and denied in part defendant’s motion for judgment as a matter of law and denied the motions for a new trial and for attorney’s fees.

I. Judgment as a Matter of Law

Microtouch argues the jury’s award of $535,000 in economic damages should be vacated because “benefit-of-the-bargain” damages are not recoverable under Cal. Civil. Code § 3333 as these types of damages are not proximately caused by fraud. The district court agreed with this argument and vacated the damage award. We review the district court’s grant or denial of a judgment as a matter of law de novo. Huffman v. County of Los Angeles, 147 F.3d 1054, 1057 (9th Cir.1998).

Whether benefit-of-the-bargain damages are available for fraud is a debatable legal question. Microtouch, however, failed properly to put this issue in debate because it did not object to the applicable jury instruction. Only one instruction was given to the jury on how it should calculate damages if…