Does a defendant have forfeited any right to challenge the instruction of a jury?

^10. Plaintiff argues defendant has forfeited any challenge to the jury instruction by failing to challenge the instruction in the trial court. We disagree. Although defense counsel ultimately said the instruction was fine, the concession was made after the trial court rejected the defense argument that negligence was a prerequisite. Any further objection would have been futile. (People v. Johnson (2004) 119 Cal.App.4th 976, 984.)

^11. The same wrongful act may constitute both a breach of contract and an invasion of an interest protected by the law of torts. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551.) However, conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law. (Ibid.) Here, it appears that defendant wants negligence to be a prerequisite in order to make the argument that a finding of negligence would not be legally permissible here because of the economic loss doctrine.