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McComber v. Wells3/3/1999
Appeal from a judgment of the Superior Court of Orange County, James W. Cook, Judge. (Retired Judge of the superior court, assigned by the Chief Justice pursuant to Cal. Const., art. VI, ยง 6.) Affirmed as modified.
A notary public, Chelle Wells, her employer, McCoy Motor Company dba Mills Ford, and her bond surety, Western Surety Co. (collectively Wells unless otherwise indicated), appeal from a judgment entered in favor of Lourey A. McComber in her negligence action. Wells maintains the trial court erroneously failed to offset the jury's damages award and should have precluded Lourey from recovering non-economic damages. Lourey also challenges several of the trial court's rulings. We modify the economic damage award, but otherwise affirm the judgment.
I.
In 1983, Lourey and Gerald McComber bought a home in Anaheim, borrowing money from two lenders who then held the first and second trust deeds encumbering the property. In 1985, the McCombers obtained several unsecured loans from Pioneer Bank. Within a few months the money was spent, and the bank asked Gerald to secure the loans by signing a promissory note and a third trust deed. Gerald agreed.
Gerald signed his and Lourey's name to the note and trust deed. He took the documents to McCoy Motor Company and asked his friend, William Mills, to help him notarize both signatures even though Lourey was not present. Mills had the company's notary , Chelle Wells, carry out the favor.
The bank accepted the trust deed and sent it to Richard Haly of Title Information Services Inc. (Haly) for recording. Haly discovered the trust deed could not be recorded because title was held in Lourey's maiden name, Lourey A. Stark, but the trust deed was signed Lourey A. McComber. Haly fixed this discrepancy by changing the description of the trustor from "Lourey A. Stark" to "Lourey A. McComber, AKA Lourey A. Stark." The trust deed was successfully recorded. Subsequently, Gerald forged Lourey's name on several other documents, extending the term of the loan for several years.
In 1986, the McCombers separated and Gerald was convicted for forging and altering checks. In 1990, Pioneer Bank sought to foreclose on the property until Lourey repaid the bank over $30,000. Thereafter, she was unable to make payments to the holders of the first and second trust deeds and they foreclosed upon the property.
Lourey filed a negligence action against Pioneer Bank and several of its employees (collectively Pioneer Bank), Haly, and Wells. Pioneer Bank cross-complained against Wells for fraud.
Within a few months, Lourey settled with Haly for $100,000 and with Pioneer Bank for $105,000. Pioneer Bank also assigned to Lourey its cross-complaint against Wells. The court determined both settlements were made in good faith.
In April 1994, trial began against the remaining defendants. The court allowed Lourey to amend her complaint to allege negligent infliction of emotional distress against Wells. The jury concluded Wells was liable and returned a special verdict, awarding Lourey $70,600 in economic damages and $83,250 in non-economic damages. The jury apportioned fault as follows: Pioneer Bank, 0 percent; Haly, 0 percent; Lourey, 0 percent; Wells, 33 1/3 percent; and Gerald, 66 2/3 percent. In addition, the jury found Gerald liable for intentional infliction of emotional distress, fraud and deceit. However, it determined Wells's misconduct did not proximately cause Pioneer Bank's damages, so Lourey recovered nothing on those assigned claims.
II.
After the verdict, Wells argued they were entitled to a setoff for Haly's and Pioneer Bank's pre-verdict se
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