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Wisper Corp. v. California Commerce Bank9/26/1996
HUFFMAN, J.
California Commerce Bank (CCB) appeals a judgment following a jury verdict finding it liable for (1) 25 percent of the damages suffered by Wisper Corporation N.V. (Wisper) caused by CCB's negligence in dealing with Edgar Benitez (Benitez), an employee of Wisper who diverted proceeds of Wisper's checks through an account he opened with CCB, and (2) conversion of one check payable to International Investments Corporation (International). CCB contends on appeal: (1) CCB is not liable to Wisper because Benitez was listed as an alternate payee on most of the checks diverted by Benitez; (2) equitable estoppel applies to bar International's claim; (3) the Code of Civil Procedure section 339, subdivision 1 two-year statute of limitations applies to bar Wisper's claim for most of the check proceeds diverted by Benitez; (4) CCB is entitled to a setoff for amounts paid by Benitez to Wisper; (5) the court erred by awarding Wisper postjudgment interest from the date of the verdict rather than from the date of entry of judgment; (6) the court erred by denying a motion for costs filed by Banco Nacionale de Mexico, Banamex USA and Banamex Holding Company (collectively Banamex), which on Wisper's motion were dismissed as defendants; and (7) Wisper's claim is barred by its "unclean hands."
Wisper and International cross-appeal the judgment contending: (1) CCB is liable for conversion of all the checks diverted by Benitez because as a matter of law they were paid on a forged endorsement; (2) the court erred by instructing the jury regarding endorsements; (3) CCB is liable for conversion of those checks on which it purportedly supplied Wisper's endorsement; (4) CCB is liable for conversion of three checks which did not include Benitez's name; (5) Wisper's judgment against CCB should not have been reduced by its own comparative negligence; and (6) the court erred by denying Wisper's request for prejudgment interest.
Higgs, Fletcher & Mack (Higgs), attorney for CCB, appeals an order imposing sanctions against it for discovery abuse, contending the court abused its discretion.
We agree that postjudgment interest should apply from the date of entry of the judgment and not the date of the verdict, and that Banamex should have been awarded its costs as a prevailing party. We disagree with all other contentions. Accordingly, we affirm the judgment in part and reverse it in part and remand for further proceedings, and we affirm the order imposing sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
The Rivera-Torres family purchased the Colony Club apartment complex in Orlando, Florida. Epoch Management, Inc. (Epoch) was hired to manage the complex. The complex ultimately became owned by Wisper, the stock of which was owned by Carlos, Mauricio and Alberto Rivera-Torres.
The Rivera-Torres family retained Scott Aurich (Aurich), a commercial real estate broker, to oversee the management of many of its real estate holdings. Aurich opened an office in San Ysidro and advertised for a bookkeeper or accountant to prepare financial statements, reconcile bank accounts and help Aurich oversee the operations of the United States properties. Benitez responded to the advertisement. He spoke fluent Spanish and gave Aurich references. Aurich hired Benitez. Benitez did not disclose to Aurich that he recently had been convicted of embezzling checks from a former employer. Although Aurich knew Benitez was in jail for approximately a month shortly after he was hired and Benitez's daughter told Aurich that Benitez had been convicted of driving while under the influence of alcohol or driving with a suspended license, Aurich did not confirm this information with e
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