Unicom Systems, Inc. v. Farmers Group, Inc., 120210 FED9, 08-56777

Docket Nº:08-56777, 08-56827
Party Name:UNICOM SYSTEMS, INC., a California corporation, Plaintiff - Appellant, v. FARMERS GROUP, INC., a Nevada corporation, Defendant-Appellee. UNICOM SYSTEMS, INC., a California corporation, Plaintiff-Appellee, v. FARMERS GROUP, INC., a Nevada corporation, Defendant-Appellant.
Judge Panel:Before: SCHROEDER and TALLMAN, Circuit Judges, and JARVEY, District Judge.
Case Date:December 02, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNICOM SYSTEMS, INC., a California corporation, Plaintiff - Appellant,

v.

FARMERS GROUP, INC., a Nevada corporation, Defendant-Appellee.

UNICOM SYSTEMS, INC., a California corporation, Plaintiff-Appellee,

v.

FARMERS GROUP, INC., a Nevada corporation, Defendant-Appellant.

Nos. 08-56777, 08-56827

United States Court of Appeals, Ninth Circuit

December 2, 2010

NOT FOR PUBLICATION

Argued and Submitted November 4, 2010 Pasadena, California.

Appeal from the United States District Court No. 2:04-cv-04604-AJW for the Central District of California Andrew J. Wistrich, Magistrate Judge, Presiding.

Before: SCHROEDER and TALLMAN, Circuit Judges, and JARVEY, District Judge. [**]

MEMORANDUM [*]

This case arises from a software license agreement between the parties incorporating California law.1 We have jurisdiction under 28 U.S.C. § 1291. We affirm.

First, we need not consider Unicom's argument that the magistrate judge erred in submitting a jury instruction on Farmers' unclean hands defense. Even assuming Unicom is correct, any such error was harmless. The instruction unequivocally told the jury to award Unicom no damages in its entire action against Farmers if the jury found unclean hands. But the jury did award Unicom damages-$816, 000 on Unicom's fraud claim. Thus, the jury apparently rejected Farmers' unclean hands defense. We will not presume the jury disregarded the instruction to somehow lessen the damages otherwise awarded to Unicom.

We also do not reach Unicom's argument that the magistrate judge erred in admitting evidence of the purchase price Unicom paid for the PIE/CICS software. Unicom waived its objection to the purchase-price evidence by being the first party to introduce it at trial, having previously failed on a motion in limine to exclude it. See Ohler v. United States, 529 U.S. 753, 755–58 (2000).

The magistrate judge did not err in submitting a jury instruction on Farmers' set-off claim. California law allows a party to assert a valid cross-demand for money to set off an opposing party's damages, even when that cross-demand would otherwise be time-barred. Cal. Civ. Proc. Code § 431.70. Farmers' legal theory underlying the set-off instruction was that Unicom breached the parties' software license agreement by failing to provide the contractually required sixty-days notice of price changes, thus overbilling Farmers...

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