What is the current state of the law on lost profits?

Lost profits were similarly found to be uncertain and speculative in Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 116 Cal.Rptr.2d 158 ( Kids' Universe ), in which the court affirmed summary judgment on the ground the plaintiffs could not establish damages where their Web-based toy store was a new venture and they did not demonstrate that a triable controversy existed as to a reasonable certainty that the e-business would have made a profit. The plaintiffs presented evidence that they had five years of experience as toy retailers and their expert witness projected they would have made a healthy profit by comparing the proposed Web site with the success of another toy company operating on the internet and similarly positioned to the plaintiffs at the time plaintiffs expected to launch their web site. ( Id. at pp. 876-877, 116 Cal.Rptr.2d 158.) The appellate court concluded the evidence was insufficient to raise a triable issue of material fact as to whether plaintiffs would have realized net profits from the operation of their on-line business. ( Id. at pp. 887-888, 116 Cal.Rptr.2d 158.) ¹⁴