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Stevens v. 396 Investment Co.5/17/2005
e 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 Salyers. 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 amount of the total damages award from the amount of the total verdict, it is apparent that the offset reflected in the judgment is $776,565.61.
According to a December 6, 2002 declaration of Attorney Robert Wolfe, who represented the Salyers and certain other plaintiffs, this amount is equal to the sum of a $622,336.61 settlement payment the Salyers received from 396, plus a $154,229 payment 396 made with respect to the Salyers' mortgage debt on the property. However, in that declaration, Attorney Wolfe also acknowledged that the offset amount was incorrect. He admitted that he had made an error in the preparation of the judgment and had omitted to include in the offset amount an additional $27,250 that the Salyers had received as a settlement payment from 396.
We observe that this declaration is inconsistent with the Factual Stipulations filed on March 4, 2002, in at least one respect. According to the Factual Stipulations, the Salyers received a $111,111.11 settlement payment from 396 in August 2001. That payment is not reflected in Attorney Wolfe's tally.
We also observe that Attorney Wolfe's declaration differs from the one filed by Attorney Rick E. Rayl. Attorney Rayl declared that Attorney Wolfe had told him that the Salyers had received a total of $931,372.81, as their share of $3,100,000 in payments as reflected in the Factual Stipulations. Based on the Rayl declaration, plus the portion of the Factual Stipulations stating that the Salyers had received another $111,111.11 in settlement proceeds from 396 in addition to their share of the $3,100,000, Anaheim claims that the Salyers received a total of 1,042,483.92 in settlement payments from 396.
This figure is supported by the "Salyer Plaintiffs' Response to City of Anaheim's Opening Brief Re: Salyer Plaintiffs' Offset," (capitalization omitted) dated May 17, 2002 - a document neither Anaheim nor the Salyers cite. In that document, executed by Attorney Wolfe on behalf of certain plaintiffs including the Salyers, the Salyers plainly admit that they received $1,042,483.92 in settlement payments, just as Anaheim asserts. Why Attorney Wolfe later filed a declaration to the contrary, we do not know.
In any event, Anaheim maintains that this $1,042,483.92 amount, plus the full amount of the Salyers' mortgage on the property, should have been combined for a total offset in the amount of $1,338,503.92. Anaheim points out that the Salyers had a $296,020 mortgage on the property, as reflected in the Factual Stipulations. In this case, however, as in the case of the Friedmans, the promissory note was not cancelled. Rather, the Factual Stipulations reflect that the promissory note was assigned to 396 and deed of trust was reconveyed, in consideration of payment to the lender of $154,229. We observe that the figures quoted in the Factual Stipulations are reasonably consistent with the terms of an agreement dated May 15, 2000, pursuant to which CitiMortgage, Inc., assigned to 396 a promissory note, payable by the Salyers and having a then-current principal balance of $286,864, and reconveyed the deed of trust securing that promissory no
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