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Marion v. 396 Investment Co.5/17/2005
h respect to this item was taken against damages. Despite the Williamses' concession, however, when it later came time to address offsets with respect to the attorney fees award, the Williamses reluctantly acknowledged that they had conceded the point too quickly. After some lengthy debate on the record concerning the purpose of the $60,000 payment, the court did not provide Anaheim with an offset against attorney fees.
We are unable to determine the exact nature of the $60,000 payment from the portions of the record the parties cite. We are therefore unable to state whether or not it was error to omit to apply an offset to the damages award. However, we are disturbed by the fact that a concession the Williamses made at one point in the proceedings was in effect disregarded at a later point in the proceedings. When the Williamses conceded that the offset should be taken later, Anaheim lost any incentive to make its toughest argument that the offset should be taken against the damages award.
We remand the Williamses' judgment and direct the trial court to determine whether the offset should include an additional amount of $60,000 with respect to the Williamses' share of the $600,000 payment from 396. Once the court has made that determination, it shall enter a modified judgment reflecting an offset in the amount of at least $452,497.03 (if the court determines that no offset should be taken against the damages award with respect to the $60,000 item) and not exceeding $512,497.03 (if the court determines that an offset should be taken against the damages award with respect to the $60,000 item).
(f) Chen Judgment
Anaheim claims that the judgment in favor of the Chens contains an erroneous offset. The October 2, 2002 judgment provides a verdict, states that the court made findings pertaining to offsets on July 3, 2002, and then provides a final damages award. The judgment itself does not articulate the amount of the offset, and our review of the record indicates that the court itself did not, on July 3, 2002, articulate an offset amount with respect to the Chens. Furthermore, the reporter's transcript of the July 3, 2002 hearing indicates that the court was lacking in clarity with respect to the exact manner in which offsets should be made. However, by subtracting the total damages award from the amount of the verdict, it is apparent that the offset reflected in the judgment is $256,705.62. We observe that this amount is equal to the total of the $96,705.62 settlement amount the Chens received from 396, plus the $160,000 amount 396 paid to cancel the Chens' mortgage debt on the property.
Anaheim contends the correct amount of the offset should have been $359,015.63, which equals the $96,705.62 settlement payment, plus the $262,310.01 amount owing on the Chens' mortgage when the debt was cancelled. As Anaheim sees it, the Chens received a windfall in the amount of $102,310.01 because the portion of the damages that they collected with respect to their real property exceeded the value of their equity in the property. As we have previously discussed, we agree with Anaheim that the rule of Smith, supra, 214 Cal.App.3d 266 should be applied to prevent the receipt of a windfall. We remand the Chen judgment and direct the trial court to enter a modified judgment reflecting an offset in the amount of $359,015.63.
(3) Offsets Where Promissory Notes Not Cancelled
(a) Introduction
Continuing on, Anaheim also insists that the Friedman and Salyer judgments are incorrect. As Anaheim sees it, even though the underlying promissory notes were assigned to 396 rather than cancelled, the court should have offset the full amounts of the
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