HEWLETT-PACKARD COMPANY, Plaintiff, Cross-defendant and Respondent, v. ORACLE CORPORATION, Defendant, Cross-complainant and Appellant.
No. H039507
Sixth Dist.
Aug. 27, 2015
Latham & Watkins, Daniel M. Wall, Alfred C. Pfeiffer, Jr., and Sadik Huseny for Defendant, Cross-complainant and Appellant.
Gibson, Dunn & Crutcher, Jeffrey T. Thomas, Samuel Liversidge and Robert S. Frank, Jr., for Plaintiff, Cross-defendant and Respondent.
OPINION
RUSHING, P. J.—Plaintiff Hewlett-Packard Company (HP) brought this action against Oracle Corporation (Oracle) alleging that Oracle breached contractual and other duties by announcing that it would no longer make its software products compatible with certain HP hardware products. After the trial court found in a bifurcated trial that Oracle was indeed obligated to adapt its products to the HP systems, and on the very eve of a trial on the questions of breach and remedy, Oracle brought a motion under the anti-SLAPP statute,
BACKGROUND
A. History of Cooperation in the Mission Critical Enterprise Server Market
For many years prior to 2010, Oracle and HP cooperated in the market for servers variously characterized as “high performance,” “high-end enterprise,” and “mission critical.” Many of HP’s sales in this category involved machines utilizing the Itanium processor, a product of Intel Corporation. According to an HP expert witness whose report Oracle cites on another point, HP sells two servers utilizing the Itanium processor—“Integrity” and “Superdome.” The servers, with the HP-UX operating system—a proprietary derivative of Unix—were adapted “to perform mission-critical processes, such as large-scale technical, government, or business computing. Customers with these mission-critical computing needs tend to be large businesses,
B. Acquisition of Sun; Hiring of Hurd; Ensuing Suit; Hurd Agreement
In 2010 this seemingly harmonious relationship was shaken by two events. First, in January, Oracle acquired Sun Microsystems, whose products included servers built around its SPARC processor and typically running Solaris, its own Unix-based operating system. The acquisition of these assets made Oracle a natural competitor with HP in the mission critical server market. As the trial court wrote, “This was a potential sea change in the relationship between the parties.”
Then, about seven months after Oracle acquired Sun, a well-publicized chain of events resulted in the resignation of HP’s chief executive officer, Mark Hurd, at the request of HP’s board. A month later, Oracle hired Hurd as its co-president.
Expressing concern that Hurd could use HP trade secrets to the unfair advantage of Oracle—particularly in exploiting the newly acquired Sun assets to compete with HP—HP filed suit against Hurd. The dispute was quickly settled by a written agreement in late September 2010, between HP and Oracle (the Hurd agreement). Its first enumerated paragraph, entitled “Reaffirmation of the Oracle-HP Partnership,” states, “Oracle and HP reaffirm their commitment to their longstanding strategic relationship and their mutual desire to continue to support their mutual customers. Oracle will continue to offer its product suite on HP platforms, and HP will continue to support Oracle products (including Oracle Enterprise Linux and Oracle VM) on its hardware in a manner consistent with that partnership as it existed prior to Oracle‘s hiring of Hurd.”
C. Cessation of Porting; Initiation of Suit
According to the trial court’s statement of decision, Oracle issued a press release on March 22, 2011—some six months after entering the Hurd agreement—stating that it had “decided to discontinue all software development on the Intel Itanium microprocessor.”2 This suggested that Oracle would
On June 15, 2011, HP filed the complaint in this action alleging, among other things, that Oracle‘s announced refusal to continue porting its software to Itanium constituted a breach of the Hurd agreement, a violation of assurances made enforceable by promissory estoppel, and a breach of the covenant of good faith and fair dealing. It prayed for a declaration that Oracle was under a duty to continue porting its products to Itanium, for a decree compelling Oracle to specifically perform that obligation, and for damages. Oracle filed a cross-complaint and HP demurred. Oracle filed an amended cross-complaint asserting that the Itanium platform was doomed and that HP had artificially propped it up by making secret payments to Intel, thus misleading the public and Oracle as to its future viability. HP also demurred to this pleading, with results not disclosed by the record. The trial court deemed the matter a complex case. The parties filed cross-motions for summary judgment or summary adjudication, which the court apparently denied.
D. Finding Against Oracle in Phase 1; Vow to Appeal
The court conducted a bench trial under HP’s declaratory relief cause of action on the question whether Oracle was under a duty to continue porting its products to Itanium. On August 1, 2012, the court issued a tentative ruling to the effect that Oracle was under such an obligation by virtue of both the Hurd agreement and other assurances Oracle had given to HP.
On the day the court issued its tentative ruling, Oracle responded with a press release framed as a quotation from an Oracle spokesperson. It stated that ” ‘[n]othing in the court’s preliminary opinion change[d] th[e] fact’ that, as asserted in Oracle’s March 2011 press releases, ‘Itanium was approaching its end of life.’ ” The Hurd settlement was dismissed as ” ‘an
On August 28, the court issued a 43-page statement of decision ratifying and explaining its tentative ruling. It reserved for further trial “[t]he issues of both parties’ performance pursuant to, and any breach of,” the duties thus found. Also reserved was the question of the remedy, if any, to which HP was entitled.
E. Resumption of Porting; Supplementation of Damages Theory
Prior to the trial in phase 1, HP’s experts on damages and causation had submitted reports premised on Oracle’s own announcement that Itanium users would be unable to run new versions of Oracle products. On September 4, 2012, Oracle reversed itself on this point, issuing yet another press release stating that it would “continue building the latest versions of its database and other software covered by the judge‘s ruling to HP Itanium computers.” Oracle did not indicate how long this undertaking could be expected to last.
Oracle’s announcement muddied the waters on causation and damage.3 Oracle’s counsel wrote to the court on September 10, 2012, stating that HP’s claims for “future damages” were no longer viable. As a result, he wrote, the parties had agreed that further discovery on damages and causation was necessary.4 The court manifestly agreed, and in December 2012, HP’s experts promulgated supplemental reports opining that Oracle’s announced intention to resume porting had not repaired the harm to HP caused by the March 2011 announcements. The essential mechanism of damage, they opined, was widespread market uncertainty about the future viability of Itanium servers as a platform for Oracle applications. Both witnesses identified the prospect of an eventual appeal by Oracle as a factor contributing to this uncertainty. Damages expert Jonathan Orszag wrote that the “continued decline in Itanium revenue” reflected in then-current projections “shows that any favorable impact from the Phase I decision and the Oracle September 2012 announcement has been more than outweighed by the continuing negative impact . . .
On March 8, 2013, Oracle filed a motion under the anti-SLAPP statute,
The trial court denied the motion on the ground that it came after expiration of the 60-day time prescribed by the anti-SLAPP statute (
ANALYSIS
I. Introduction
As is recounted in many judicial opinions, the Legislature adopted the anti-SLAPP statute to address what it described as a “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (
A major reason for this explosion is that the statute rewards the filer of an unsuccessful anti-SLAPP motion with what one court has called a “free time-out” from further litigation in the trial court. (Brar, supra, 115 Cal.App.4th 1315, 1318.) The statute does this by entitling the unsuccessful
Nearly a decade later, the pattern decried in Brar had become so familiar that one court opened an opinion with a weary protest: “Another appeal in an anti-SLAPP case. Another appeal by a defendant whose anti-SLAPP motion failed below. Another appeal that, assuming it has no merit, will result in an inordinate delay of the plaintiff’s case and cause him to incur more unnecessary attorney fees. [Citation.] And no merit it has.” (Moriarty v. Laramar Management Corp. (2014) 224 Cal.App.4th 125, 128.) Another court was described as “exasperated” by a motion that advanced ” ‘[n]either the public‘s nor defendant’s right to participate.’ ” (Grewal v. Jammu, supra, 191 Cal.App.4th 977, 997, 998, quoting Moran v. Endres (2006) 135 Cal.App.4th 952, 955.)
The statute contains a provision apparently intended to limit this kind of abuse: “The special motion may be filed within 60 days of the service of the complaint or, in the court‘s discretion, at any later time upon terms it deems proper.” (
Here, the trial court adopted a more streamlined approach: It heard the motion, and then “denied” it on grounds of untimeliness, concluding that good cause had not been shown for a belated hearing. While entirely suitable in a more conventional procedural setting, this approach produced the regrettable consequence of granting Oracle the “free time-out” condemned in Brar, supra, 115 Cal.App.4th 1315, 1318. Because the statute plainly authorizes an appeal from “[a]n order granting or denying a special motion to strike” (
II. The Trial Court’s Decision Not to Entertain the Motion Cannot Be Overturned Unless It Contravened the Purposes and Policy of the Act
As already noted, the statute vests the trial court with discretion to entertain an anti-SLAPP motion proffered after expiration of the 60-day period. (
In the anti-SLAPP context, courts have identified two particular ways in which a refusal to entertain a late anti-SLAPP motion might be shown to constitute an abuse of discretion: (1) if “the grounds given by the court . . . are inconsistent with the substantive law of section 425.16,” and (2) if the court‘s application of the statute to the facts of the case is “outside the range of discretion conferred upon the trial court under that statute, read in light of its purposes and policy.” (Olsen v. Harbison, supra, 134 Cal.App.4th at p. 285, italics added.) In other words, a claim that a trial court abused its discretion by failing to entertain a late anti-SLAPP motion requires the appellant to demonstrate that the trial court applied the statute in a manner that is incompatible either with the statute‘s actual mandate, or with its “purposes and policy.” (Ibid.)
We do not understand Oracle to claim that the trial court‘s ruling violated any express mandate of the statute. Its appellate challenge therefore necessarily rests on the premise that the refusal to entertain the motion on the merits did violence to the statute‘s purpose and policy. This premise cannot be sustained.
III. The Motion Was Properly Denied Because It Could Not Efficiently Dispose of Any Substantial Part of the Action and Could Only Delay a Final Determination and Magnify the Costs to Both Parties
A. The Purpose of the Statute Is to Promptly Dispose of Qualifying Causes of Action and Thereby Spare the Defendant from the Costs of a Successful Defense Under Conventional Procedures
The overarching objective of the anti-SLAPP statute is “to prevent and deter” lawsuits chilling speech and petition rights. (Varian, supra, 35 Cal.4th 180, 192.) “Because these meritless lawsuits seek to deplete ‘the defendant’s energy’ and drain ‘his or her resources’ [citation], the Legislature sought ’ “to prevent SLAPPs by ending them early and without great cost to the SLAPP target” ’ [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. [Citation.]” (Id., italics added; see Lam v. Ngo, (2001) 91 Cal.App.4th 832, 841 (Lam) [“whole purpose” of statute is “to provide a mechanism for the early termination of claims that are improperly aimed at the exercise of free speech or the right of petition“]; Lam, at p. 844 [“purpose is to weed out meritless ‘claims’ at an early stage“]; Castleman v. Sagaser, supra, 216 Cal.App.4th at p. 489 [motion “allows the trial court to evaluate the lawsuit at an early stage“].)
A late anti-SLAPP motion cannot fulfill the statutory purpose if it is not brought until after the parties have incurred substantial expense. Recognition of this fact is implicit in the 60-day requirement, which entitles a defendant to use the statute‘s “special” procedure (
B. The Motion Was Too Late to Accomplish the Statutory Objectives
When the trial court made the order under review, this case had clearly passed the point just described. Oracle‘s motion was brought, by our reckoning, at least 618 days after the 60-day period began to run, and 558 days after it ended.10 In fact the motion could not have been brought any later: it was heard on the last court day before trial.
We have found no authority suggesting that a defendant may be entitled to have an anti-SLAPP motion heard after such a delay. On the contrary, much shorter lapses of time have been held to justify a refusal to entertain anti-SLAPP motions on the merits. (See, e.g., Chitsazzadeh, supra, 199 Cal.App.4th 676, 680-681 [motion properly denied as untimely where 113 days elapsed between service of complaint and filing of motion]; Morin v. Rosenthal (2004) 122 Cal.App.4th 673 [no abuse of discretion to deny as untimely motions filed 90 days after remand from federal bankruptcy court]; Kunysz v. Sandler, supra, 146 Cal.App.4th 1540, [no abuse of discretion to deny, partly on timeliness grounds, motion for reconsideration filed some 10 months after initial timely motion]; Olsen v. Harbison, supra, 134 Cal.App.4th at pp. 282, 283 [appeal dismissed as frivolous where motion filed 278 days after service].)
The only case we have found rivaling this one in the degree of the motion‘s lateness is Platypus Wear, Inc. v. Goldberg, supra, 166 Cal.App.4th
At the same time, we are aware of no case holding that a trial court abused its discretion by denying an anti-SLAPP motion, or refusing to hear it, after the 60 days had passed. Here the statutory period had elapsed roughly 10 times over. Given that extraordinary delay, it would require a comparably extraordinary showing to make even a colorable claim that the trial court abused its discretion by refusing to entertain the motion on the merits.
As previously noted, an anti-SLAPP motion cannot fulfill the statutory purpose, and may indeed subvert that purpose, if the parties have already incurred substantial expense preparing the case for a more conventional disposition. Here, 632 days elapsed between HP’s complaint and Oracle’s anti-SLAPP motion. The online docket sheet, reproduced as an exhibit to HP’s motion to dismiss, shows 483 entries—that is, 483 documents filed—over the period beginning with the complaint and ending with the anti-SLAPP motion. These of course included all of the pleadings: HP’s complaint, Oracle’s cross-complaint, HP’s demurrer, Oracle’s amended cross-complaint, and the parties’ respective answers. In addition the docket reflects extensive—and extensively contested—discovery proceedings, including numerous motions. The parties also filed, by our count, eight motions to seal parts of the file. Another four motions to seal were filed by nonparty Intel Corporation. The parties filed cross-motions for summary judgment or summary adjudication. They also participated in numerous case management conferences, some of which are reflected in the 14 volumes of reporter’s transcript—not including trial proceedings in phase 1—contained in the appellate record.
Indeed, by the time Oracle’s anti-SLAPP motion was brought, the court had already tried a major part of the case, and was on the verge of trying the rest. The docket includes many filings made in anticipation of the impending trial on phase 2, including proposed jury instructions and motions in limine. Again, the anti-SLAPP motion was heard one court day before that trial was to commence. Had that motion not been interposed, the entire case would presumably have been tried by now, and this court would be addressing all of the issues raised by an appeal from the resulting judgment, rather than an interruptive appeal that could at most resolve one issue while the rest of the case languished below. “Those whose rights and obligations depend on [a] judgment are [typically] best served by a single complete and final resolution of the issues presented. A right to an interlocutory appeal permits a party who
Nor would the result have been substantially different if the trial court had entertained and granted the anti-SLAPP motion: the order would still have been likely to generate only delay and expense. Had the motion been granted, HP would have been entitled to take an immediate appeal. (
All of this would have been quite apparent to the trial court when Oracle filed its 11th-hour motion. There was simply no way a motion brought that late could achieve any significant reduction in the time and expense required to conclude the lawsuit. These facts alone bar a holding that refusal to entertain the motion on the merits was an abuse of discretion. The costs of defense had already been fully incurred, save for a trial which was destined to go forward—eventually—even if the motion was granted. The only likely effect of the motion would be to generate an expensive and time-consuming delay. That is all it could do and all it has done.
IV. Oracle’s Claim of an Excuse for Delayed Filing Does Not Establish an Abuse of Discretion
A. An Excuse for Late Filing Does Not Deprive a Trial Court of Discretion to Refuse to Entertain a Late Anti-SLAPP Motion
Oracle insists that the record showed an adequate excuse for not filing the motion within the prescribed 60 days, and that the trial court‘s conclusion to the contrary is unsustainable. The first problem with this argument is that it avoids the central question raised by any late anti-SLAPP motion, which is the extent to which it can serve the statutory purpose of providing an expedited disposition of meritless claims burdening the exercise of speech and petition rights. The possibility that the defendant can point to some circumstantial justification for not bringing the motion sooner—like mistake,
The anti-SLAPP procedure is not intended and cannot serve as a mere symbolic affirmation of our society’s commitment to public participation. It is an attempt to remedy a specific social ill, i.e., use of the litigation process to harass, intimidate, and punish those who seek to partake in public affairs. The justification for the statute’s extraordinary procedures must rest on the actual utility of the procedure in particular cases. As we have said, where the parties have already incurred substantial expense and the case has progressed to its later stages, it is almost certain to be too late for the motion to accomplish any legitimate purpose. No showing of blamelessness or justification on the part of the defendant can restore what time has destroyed. All the motion can accomplish is delay.
It follows that even if Oracle had succeeded in establishing an excuse for not bringing the motion sooner, the trial court would not have been obliged to entertain the motion on the merits, and its refusal to do so would not constitute an abuse of discretion. Nor does Oracle offer any persuasive support to the contrary. It cites Lam, supra, 91 Cal.App.4th 832, where a trial court denied as untimely an anti-SLAPP motion filed 64 days after service of a first amended complaint. The court held that (1) the 60-day period runs anew from the filing of an amended complaint, at least where the preceding complaint “contained no anti-free-speech claims”11 (91 Cal.App.4th at p. 841); and (2) service of such a pleading by mail extends the 60 days to 65 in accordance with
In short, the motion in Lam was held to be timely. The trial court therefore had no discretion to abuse, and its refusal to hear the motion was simple error. (See Lam, supra, 91 Cal.App.4th. at p. 840 [court has discretion to refuse to consider merits of late motion, but “must” reach merits if motion “is filed within the 60-day deadline” (italics omitted)].) This makes the case
Much the same is true of South Sutter, supra, 193 Cal.App.4th 634, 653, also cited by Oracle. The trial court there was held not to have erred by “starting the 60-day period anew” upon the transfer of the case from another county. The holding rested on a stipulation transferring the action, in which the court found the parties had “effectively agreed” that transfer would restart the period. (Id. at pp. 654, 656.) Support for its conclusion was found in Morin v. Rosenthal, supra, 122 Cal.App.4th 673, where the trial court refused to hear an anti-SLAPP motion filed 90 days after a remand from bankruptcy court. The reviewing court concluded that the trial court had “acted within its discretion in denying the SLAPP motions as untimely,” even though the defendants claimed that the motion could not have been heard earlier due to their own motions for intra-county transfer and to disqualify the assigned judge. (Id. at p. 681; see id. at p. 680.) Nothing in either case supports a rule under which an excuse for late filing deprives the trial court of discretion to decline to hear a late anti-SLAPP motion that cannot serve the statutory objectives. That the tardiness of the motion is excusable is merely one factor that may justify, but need not compel, a decision to entertain it on the merits.
B. Oracle Offered No Colorable Excuse for the Motion’s Untimeliness
Even if an excuse for late filing could require that Oracle’s motion be heard on the merits—a premise we emphatically reject—nothing in the record impeaches the trial court’s finding that the excuse offered by Oracle was inadequate. This is true for a number of reasons, of which the most telling may be that Oracle waited more than 60 days after the claimed occasion to file the motion came to its attention. The gist of Oracle’s argument is that HP’s case did not implicate speech or petition rights, and thus did not furnish an occasion to file an anti-SLAPP motion, until HP cited Oracle’s vow to appeal as a factor contributing to the market uncertainty that had depressed HP’s Itanium-based business. But HP first cited Oracle’s avowed intention to appeal as a factor bearing on causation and damages no later than October 25, 2012, when HP filed its motion to serve supplemental expert reports on those
These remarks clearly presaged HP‘s contention that the promise to appeal was a factor contributing to HP‘s injuries. The supplemental expert reports, which were apparently served on December 10, 2012, made this contention explicit. HP‘s damages expert, Orszag, cited Oracle‘s announced intention to appeal, along with its filing of a writ petition in this court, as one of three “developments” since his original report having “the potential to affect my calculation of damages.” Referring to a continuing decline in Itanium sales, he opined that “any favorable impact from the Phase 1 decision and the Oracle September 2012 announcement has been more than outweighed by the continuing negative impact on Itanium performance from the March 2011 Oracle Announcements and the continuing uncertainty created by Oracle‘s recent statements regarding its intention to appeal the Phase 1 decision.” He noted reports from HP employees that “customers continued to have serious concerns about such factors as Oracle‘s commitment to the Itanium platform, the continuing delay and uncertainty created by Oracle‘s announced intention to appeal the Phase 1 decision, and concerns about the level and quality of Oracle‘s future contractual performance.” Oracle‘s announced resumption of porting, reported these employees, was “insufficient to cause customers to change their decisions to migrate away from Itanium. In addition to the lengthy delay between Oracle‘s March 2011 announcements and its September 2012 statement that it would resume porting to Itanium, customers are aware that Oracle made the statement only after losing Phase 1 of the trial, and shortly after Oracle had issued another statement criticizing the court‘s tentative decision and vowing to appeal the court‘s decision.”
Causation expert Collins also cited the vow to appeal and the writ petition as factors contributing to customer doubts about the future viability of Itanium as a platform for Oracle applications. He wrote that Oracle‘s public disagreement with the trial court‘s ruling, together with the vow to appeal, “naturally leaves customers uncertain about whether Oracle will continue to develop its future software products for Itanium-based servers.” He reported his understanding, gathered from HP sales directors, that “customers doubt that Oracle‘s stated intention to resume porting is going to last over the long-term and, therefore, they are migrating away from their Itanium-based
The anti-SLAPP motion was filed on March 8, 2013—88 days after the reports, and 134 days after HP’s motion to prepare them. Assuming HP had the statutory 60 days from the later date to have an anti-SLAPP motion heard, plus five days for service by mail (see
In an attempt to address this fatal defect in its position, Oracle suggests that it could not have appreciated the importance of the vow to HP’s case until it conducted the depositions of certain HP witnesses, which it did during the 65 days preceding the anti-SLAPP motion. It cites the testimony of HP experts Collins and Orszag, but neither of them appears to have said anything materially different from what they had written in their supplemental reports. Perhaps for this reason, HP also cites the deposition testimony of David Donatelli, whom it describes as “the head of the HP business unit responsible for Itanium and a principal HP trial witness.” Donatelli affirmed that “[a]s far as I know,” it was “Oracle’s choice to continue to exercise its right to contest HP‘s claims that has caused [HP‘s] damages.”12 This testimony differed from the supplemental expert reports only in its oversimplification of the revised damages theory—a subject on which Donatelli may not even be qualified to give an opinion, and on which he certainly was not authorized to speak with greater authority than HP’s attorneys and the experts they had engaged. The implied assertion that his testimony somehow triggered a new 60-day period within which to file an anti-SLAPP motion is, at best, fanciful.
CONCLUSION
The foregoing discussion does not exhaust the grounds on which the trial court’s denial of Oracle’s motion appears justified. Among other apparent
The case thus provides yet another illustration of the many ways in which the current anti-SLAPP statute produces unintended and even perverse results. It can be argued that the overbreadth of the statute has made the cure worse than the disease. To be sure, the statute achieves its intended purpose in true SLAPP cases, i.e., patently meritless suits brought to punish and harass adversaries in the public arena. But if it makes short work of suits like that, it makes much longer and more expensive work of many suits bearing no resemblance whatever to the targeted paradigm. It is as if a city had decided to cure an illness afflicting a few of its residents by lacing the water supply with a chemical that would indeed cure those sufferers, but would sicken a larger number of previously healthy citizens.
If HP‘s claims are just, then it has been deprived of justice for two years. That deprivation cannot be defended by citing the avowed purposes of section 425.16, for this suit does not and never did implicate the interests at the heart of that statute, i.e., the right to take part in public affairs without suffering the oppression and expense of a meritless lawsuit intended to punish and deter the exercise of political rights. We can only join a chorus of other courts in pleading with the Legislature to examine the real-world effects of the statute on ordinary civil disputes and to seek a way to reduce the overwhelming temptations it currently offers to engage in abuses at least as injurious as those it was designed to correct.
In this regard, we offer the suggestion that one simple fix might substantially reduce the motivation to abuse the anti-SLAPP procedure: Limit the right to interlocutory appeal to denials, and allow them only where the motion (1) is filed within the allotted 60 days, and (2) would—if granted—dispose of the entire action. Where either of those conditions is lacking, the motion can rarely if ever achieve any real saving of time or money, and an appeal can only have the opposite effect. Such an amendment would limit invocation of the statute to cases where it may serve its stated purpose and greatly reduce its tactical utility in many if not most of the situations where it is now being most sorely abused.
The order denying Oracle‘s anti-SLAPP motion is affirmed.
Elia, J., and Márquez, J., concurred.
Notes
“A. Yes, while also under appeal.
“Q. Sure. Well, and—well, we‘ll get to that. So is it—is it Oracle’s choice to continue to exercise its right to contest HP‘s claims that has caused your damages, as far as you‘re concerned?
“A. As far as I know, it is, yes.”