 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Marion v. 396 Investment Co.5/17/2005
endant substantial prejudice, plaintiff should be estopped from pursuing the alternative remedy.' [Citation.]" (Baker v. Superior Court (1983) 150 Cal.App.3d 140, 144-145.)
The doctrine has been applied, for example, where a purchaser has been fraudulently induced to enter a contract. The purchaser must elect whether to affirm the contract and claim damages or to rescind the contract. He cannot elect both, for the remedies are inconsistent. (See, e.g., Evans v. Rancho Royale Hotel Co. (1952) 114 Cal.App.2d 503, 507.) In the case before us, however, the remedies are not inconsistent. "Courts and commentators have long recognized the harshness of the election of remedies doctrine and have for some time looked upon it with disfavor. [Citations.]" (Baker v. Superior Court, supra, 150 Cal.App.3d at p. 145.) We do not apply the doctrine here.
L. EXCESSIVE PROPERTY DAMAGE AWARDS
(1) Introduction
Anaheim contends that the court awarded excessive real property damages with respect to four properties - those owned by the Marions, the Stevenses, the Wongs, and the Suryantos. More particularly, Anaheim asserts that the amounts set forth in the special verdict with respect to the properties owned by the Marions, the Stevenses and the Wongs exceeded the highest respective values fixed by any expert witness. Where the Suryanto property is concerned, Anaheim contends the court improperly awarded damages pertaining to 100 percent of the property to a plaintiff who only owned one-half of the property. We address these issues in turn.
(2) Stevenses' and Wongs' Properties
Appraiser Barbara L. Zachry testified that the Stevenses' property was worth $240 per square foot and the Wongs' property was worth $225 per square foot. Zachry said that she determined the square footage of each home by looking at the construction plans, not measuring the properties. Using the construction plans, she determined the Stevenses' residence to be 4,317 square feet and the Wongs' residence to be 4,539 square feet. Applying the respective values per square foot to the respective square footage of each home, Zachry concluded that the Stevenses' property was worth $1,036,000 and the Wongs' property was worth $1,019,000.
Appraiser John Aust testified that he took field measurements to determine the square footage of the properties. He explained that he measured the properties in order to make certain that he got an accurate figure, inasmuch as he believed that the information contained in the building permit files was not always accurate. Aust determined that the Stevenses' residence was 5,124 square feet and the Wongs' residence was 5,081 square feet. He assigned a fair market value of $1,150,000 to the Stevenses' property and a fair market value of $1,100,000 to the Wongs' property.
The special verdict states that the fair market value of the Stevenses' property was $1,210,000 and that the fair market value of the Wongs' property was $1,128,000. Anaheim says that these values impermissibly exceed the values assigned by either appraiser.
Anaheim overlooks one thing. Zachry admitted that the plans she used to determine square footage were the construction plans as approved, not the as-built plans. At trial, she was asked how she would value the Stevenses' home on the representation that it actually measured out at 5,124 square feet. She conceded that if the home measured 5,124 square feet, she would value the home at $1,230,000. Zachry was also asked how she would value the Wongs' home on the representation that it actually measured out at 5,081 square feet. She stated that if the home measured 5,081 square feet, she would value the home at $
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|