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Marion v. 396 Investment Co.5/17/2005
e trial brief itself. We could treat the issue as waived, because Anaheim failed to cite to the portion of the appellate record supporting its factual assertions. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.) However, we were able to locate the Factual Stipulations, mentioned in Anaheim's trial brief, that support in part Anaheim's assertions on appeal. The Factual Stipulations state the amount of payments that the various plaintiff groups received collectively from 396. The problem is that the Factual Stipulations do not break down all the relevant information by particular plaintiff. Therefore, by relying on the Factual Stipulations alone, we cannot verify Anaheim's factual assertions.
We observe that there is a May 10, 2002 declaration of Attorney Rick E. Rayl attached to Anaheim's trial brief. In that declaration, Attorney Rayl said he had spoken to Attorney Robert Wolfe and obtained from him a breakdown of the relevant dollar figures per plaintiff. Attorney Rayl also declared that he had forwarded a proposed stipulation on the matter to Attorney Wolfe for execution. However, we do not know if the proposed stipulation was ever executed.
Oddly enough, we have located an important document which neither Anaheim nor the Wongs cite on appeal. That document is the "Salyer Plaintiffs' Response to City of Anaheim's Opening Brief Re: Salyer Plaintiffs' Offset," (capitalization omitted) dated May 17, 2002. In that document, executed by Attorney Wolfe on behalf of certain plaintiffs including the Wongs, the Wongs plainly admit that they received $1,280,905.05 in settlement payments, just as Anaheim asserts.
More strangely yet, we have also located a document in which Attorney Wolfe himself later contradicted that very admission. Attorney Wolfe, in a December 6, 2002 declaration, admitted that the judgment contains an erroneous offset. However, he asserted that the total amount of money the Wongs had received from 396 was $800,976.64 and that this should have been the amount of the offset. His declaration was inconsistent with both the declaration of Attorney Rayl and the May 17, 2002 brief. As best we are aware, the trial court made no finding as to which, if either, of the two attorney declarations is correct.
However, we imply a trial court finding that the Wongs received $662,004.92 from 396. (See People v. Francis (2002) 98 Cal.App.4th 873, 877-878 [all findings necessary to support the judgment are implied].) The parties do not cite any portion of the record that would provide substantial evidence in support of this implied finding. Therefore, we remand the matter to the trial court for a determination of the correct amount of the offset, taking into consideration the total amount of money the Wongs actually received from 396.
(c) Stevens Judgment
Anaheim claims that the judgment in favor of the Stevenses contains an erroneous offset. The October 2, 2002 judgment provides a total 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 Stevenses. 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 total verdict, it is apparent that the offset reflected in the judgment is $647,600.88.
Anaheim contends the amount of the offset should have been $1,193,
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