103 Cal. App. Supp. 3d 22 | Cal. App. Dep’t Super. Ct. | 1980
Opinion
Plaintiff sued in a six-count complaint for rescission, restitution, and damages. The controversy was based on the sale by defendant to plaintiff of a used car which plaintiff later returned as unsatisfactory. Defendant appeals from two judgments entered February 2, 1979: one for $400 for restitution and the other for $2,000 for fraud.
I. Summary Adjudication
On December 14, 1977, the court granted plaintiff’s motion for summary adjudication of the first cause of action for restitution. Although denominated partial summary judgment in the motion, the court’s order declared that the plaintiff’s claims in count 1 were established as without substantial controversy, severed the remaining counts for later trial, and ordered that rescission and $400 restitution be incorporated in the ultimate judgment rendered.
Defendant asserts that the granting of the motion was error, and was compounded by the trial judge telling the jury that an order had already been made granting rescission and return of the $400 down payment. Taking the latter argument first, plaintiff is correct in asserting that the engrossed settled statement re testimony does not reflect that the jury was so advised by the trial judge. The settled statement was prepared by defendant and indicates that defendant will assert error in allowing Jose Gonzalez to testify. It does not indicate that there
Nevertheless, defendant is not foreclosed from arguing that the order for summary adjudication was erroneously made. The clerk’s transcript on appeal shows the moving and responding papers and the order was carried forward in the judgment entered February 2, 1979. Plaintiffs motion was grounded on only one defect in the contract of the parties: an overcharge of $1.76 on the finance charge. Under Civil Code section 2982, subdivision (c), the maximum finance charge would be $281.34
As the defense of error in calculation was not pleaded by defendant, the issue could not be considered by the court in ruling on the motion for summary adjudication. (Keniston v. American Nat. Ins. Co. (1973) 31 Cal.App.3d 803, 811-812 [107 Cal.Rptr. 583].) Defendant’s remedy was to request leave of the court to amend his answer so as to assert his defense. “If either party finds, on the hearing of such a motion, that his pleading is not adequate, either by way of allegation or denial, the court may and should permit him to amend; but in the absence of some request for amendment there is no occasion to inquire about possible issues not raised by the pleadings.” (Gardenswartz v. Equitable etc. Soc. (1937) 23 Cal.App.2d Supp. 745, 753 [68 P.2d 322].)
II. Election of Remedies
Defendant claims that the damages awarded by the jury for fraud were improper as plaintiff had elected to rescind the contract and thus gave up his right to damages. Defendant’s claim of “election of remedies” is grounded on Evans v. Rancho Royale Hotel Co. (1952) 114 Cal.App.2d 503 [250 P.2d 283]. In that case a real estate sale was mutually cancelled by a written agreement of the parties. The court held that this precluded the purchasers from later suing for their damages for fraud for the moneys they laid out in anticipation of the sale.
III. Punitive Damages
Defendant claims that the award of $2,000, not being segregated as to actual and punitive damages, is unintelligible and erroneous. Defendant’s remedy was by way of submitting a special verdict under Code of Civil Procedure section 625 or in having the trial judge ask the jury to clarify its verdict form prior to discharge of the jury. On the record presented to us we cannot tell whether the verdict included both kinds of damages or only one, or which one. We hesitate to presume that the jury erred. On the evidence given, the jury could have found compensatory damages for the many trips plaintiff made to defendant’s place of business attempting to have the car repaired, and for the two spark plug sets he had to buy. The loss of use of the $400 down payment may have been another element of damage. Even a finding of no compensatory damages by the jury would not necessarily deprive plaintiff of an award for punitive damages. In James v. Public Finance Corp. (1975) 47 Cal.App.3d 995 [121 Cal.Rptr. 670], an award of punitive damages was upheld by the appellate court in that compensatory damages were shown by the plaintiff even if not awarded expressly by
IV. Gonzalez Testimony
Defendant objected to the testimony of Jose Gonzalez concerning his transaction with defendant. Defendant says that this transaction, occurring two years eight months after the Cobian-Ordonez sale, was too remote, the probative value was outweighed by its prejudicial effect, and concerned a sale made by Ordonez Motors, Incorporated of South Gate, not Ordonez Motors of East Los Angeles. Gonzalez testified that the misrepresentations made to him were made by defendant personally. The change in the form of doing business was immaterial. Those misrepresentations and the pattern of dealing with a customer were sufficient to show intent, common plan and absence of mistake or accident within the meaning of Evidence Code section 1101, subdivision (b). The jury was so instructed, before Gonzalez testified, by the judge. The evidence was not admitted to show defendant’s “bad character.” Remoteness in time does not require exclusion of this type of testimony. (See People v. Burns (1952) 109 Cal.App.2d 524, 538 [241 P.2d 308, 242 P.2d 9]; People v. Peete (1946) 28 Cal.2d 306, 318-319 [169 P.2d 924].) Any remoteness went to weight and defendant argued the lack of weight of this evidence to the jury. There was no abuse of the trial judge’s discretion to allow this evidence to be received pursuant to Evidence Code section 352. (People v. Kelley (1977) 75 Cal.App.3d 672, 678 [142 Cal.Rptr. 457].)
V. Attorney Fees
The trial court awarded plaintiff $2,000 attorney fees claimed as costs. Plaintiff’s claim for those fees was based on Civil Code section 2983.4 which provides, in part: “Reasonable attorney’s fees and costs shall be awarded to the prevailing party in any action on a contract ... subject to the provisions of this chapter regardless of whether the action is instituted by the seller, holder or buyer.” In the complaint plaintiff prayed both for costs and reasonable attorney fees. In the motion for summary adjudication no request was made for fees and the minute order granting the motion is silent as to fees. No challenge is made to the amount of the fees by defendant. However, defendant claims that plaintiff is not entitled to fees as none were given in the order granting
Defendant has not persuaded us of error in the judgment against him.
Cross-appeal
Plaintiff Cobian pursues two issues on his cross-appeal, both pertaining to interest on the awards of damages. The interest on the $400 restitution award was ordered to run from December 14, 1977, the date of the ruling on the motion for summary adjudication. Plaintiff is correct in his contention that the interest should have commenced with the rescission of October 4, 1974. This date was admitted by defendant in failing to deny paragraph 11 of the complaint. (Civ. Code, § 3287; Leaf v. Phil Rauch, Inc., supra, 47 Cal.App.3d at p. 375.)
Interest on the second judgment of $2,000 was ordered to commence January 30, 1979, the date that the judge denied the defendant’s motion for judgment notwithstanding the verdict. This erroneously postponed the accrual of the interest beyond the time provided in Code of
Disposition
The judgment is modified to read: “Judgment for plaintiff Eriberto Cobian against defendant Alejandro Ordonez, also known as Alex Ordonez, individually and dba Alejandro Ordonez Motors in the sum of $2,400 plus $2,000 attorney fees plus interest at 7 percent per annum on the sum of $400 from October 4, 1974, plus interest at 7 percent per annum on the sum of $2,000 from December 19, 1978, plus costs as allowed by law” and as so modified, the judgment is affirmed. Plaintiff Cobian to recover his costs on appeal.
Cole, P. J., and Dowds, J., concurred.
As only one judgment is proper in this action, we construe the two documents executed by the clerk on the same day (“Minutes and Judgment—Trial—Brief Form” and “Judgment on Verdict”) together as the judgment. These two documents will be referred to hereafter as the judgment.
Under the contract the unpaid balance to be financed was $1,562.98. Civil Code section 2982, subdivision (c) allows 1 percent per month to be financed plus another 1 percent for a partial month over 15 days. The contract was signed August 17, 1974, and payments were to be made over 18 months and 15 days. Eighteen times 1 percent times $1,562.98 is $281.34. Defendant actually charged $283.10. This is $1.76 more than the maximum allowable charge of $281.34.
See footnote 2.
As noted in the first section of this opinion, the record on appeal does not include any instructions concerning the jury’s treatment of the summary adjudication order. Thus defendant has not demonstrated that the jury’s verdict duplicated or included the $400 previously awarded by the judge as restitution.