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Stevens v. 396 Investment Co.5/17/2005
al 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 $1,193,702.35, which it asserts is equal to the $563,913.54 in settlement payments the Stevenses received from 396 plus the $629,788.81 amount 396 paid on the Stevenses' mortgage. In support of its analysis, Anaheim cites its own trial brief on the topic, without providing record references for the supporting data cited in the body of the 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.
Curiously, neither Anaheim nor the Stevenses cite 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 Stevenses, the Stevenses plainly admit that they received $563,913.54 in settlement payments, just as Anaheim asserts.
Even more curiously, we have 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 Stevenses had received from 396 was $196,591.31 and that 396 had paid $594,768.25 on the Stevenses' mortgage. He urged that the total of those two sums, or $791,359.56, should have been the amount of the offset. His declaration was inconsistent with both the declaration of Attorney Rayl and the May 17, 2002 trial 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 total amount of money 396 paid to or on behalf of the Stevenses was $647,600.88. (See People v. Francis, supra, 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 Stevenses actually received from 396 and the total amount of money 396 paid on the Stevenses' mortgage.
(5) Offsets Pertaining to 396's Judgment
(a) Unsecured Balances of Friedman and Salyer Promissory Notes
The October 2, 2002 judgment in favor of 396 and against Anaheim awards $9,086,009 in damages (calculated as $10,377,181 in damages mi
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