 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
BTS2/19/2002
ants' consideration for the contract-an alarm system that worked as represented-had failed. This was an additional ground for rescission. (Civ. Code, § 1689, subd. (b)(4); Conlin v. Osborn (1911) 161 Cal. 659, 663-666; Wyler v. Feuer (1978) 85 Cal.App.3d 392, 403-404; Nelson v. Sperling (1969) 270 Cal.App.2d 194, 195.) A rescinded contract is an extinguished contract (Civ. Code, § 1688), meaning that it has ceased to exist and none of its provisions can be enforced by any party. (E.g., Larsen v. Johannes (1970) 7 Cal.App.3d 491, 501; Bowman v. Victor (1948) 83 Cal.App.2d 693, 699; Dyer Bros. G. W. I. Wks.v. Central I. Wks. (1925) 72 Cal.App. 202, 209.) Once a contract has been rescinded, the only legal action needed thereafter is for relief. (Runyan v. Pacific Air Industries, Inc. (1970) 2 Cal.3d 304, 312-313.) The scope of relief available is considerable. "A claim for damages is not inconsistent with a claim for relief based upon rescission. The aggrieved party shall be awarded complete relief, including restitution of benefits . . . and any consequential damages to which he is entitled . . . ." (Civ. Code, § 1692; see Jahn v. Brickey (1985) 168 Cal.App.3d 399, 406.) If plaintiff rescinded the contract, it extinguished the entire contract, including the damages provision. (See Douglass v. Dahm (1950) 101 Cal.App.2d 125, 128.) It follows that defendants cannot rely on the provision of an extinguished contract to defeat plaintiff's recovery claim that is not in any way based upon that contract. Although defendants place considerable emphasis on decisions upholding the validity of liquidated damage provisions in alarm service contracts (see H. S. Perlin Co. v. Morse Signal Devices (1989) 209 Cal.App.3d 1289, 1295-1296 and authorities cited), none of these decisions hold that such a provision supersedes or is in any way incompatible with the availability of the statutory remedy of rescission. This is consistent with the logic of liquidated damage provisions: " provision in a contract liquidating damages for the breach of the contract is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage." (Civ. Code, § 1671, subd. (d).) The validity of such a provision has relevance only when one of the parties is suing for breach (White v. City of San Diego (1932) 126 Cal.App. 501, 508), which plaintiff is not.
Even were that not so, we would reverse for another reason. The liquidated damages provision appears to apply to property loss or damage ("if dealer should be found liable for any loss or damage"), and has other features that suggest it is not lethal to plaintiff's complaint. The clause is clearly intended to apply to damage to property owned by plaintiff or stored by plaintiff on its premises. There is, however, nothing, which suggests that the alleged failure of defendants' alarm system either resulted in such damage or that plaintiff, is seeking compensation for such loss.
The order granting defendants' motion for summary judgment is modified by adding this provision: "Plaintiff shall recover the sum of $500.00 from defendants Sonitrol Corporation of Contra Costa and Kimberlite Corporation." As so modified, the order/judgment is reversed. All other purported appeals are dismissed. The parties shall bear their respective costs of appeal.
We concur:
Reardon, J.
Sepulveda, J.
Page 1 2 3 4 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|