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Frampton v. Baer

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 17, 2012
2d Civil No. B228002 (Cal. Ct. App. Jan. 17, 2012)

Opinion

2d Civil No. B228002 Super. Ct. No. 1303311

01-17-2012

KEVIN FRAMPTON, Plaintiff and Appellant, v. MERIDITH BAER, Defendant and Respondent.

David W. Magnusson; Haws, Record & Magnusson, for Appellant. Leviton Law Group, Stuart L. Leviton, for Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Barbara County)

Kevin Frampton appeals from the judgment entered in favor of Meribear Productions, Inc. (Meribear), dba Meridith Baer & Associates, following a court trial. Appellant and Meribear sued each other for breach of contract. The judgment awarded damages to Meribear in the amount of the contract price - $68,000. Appellant contends that the trial court misconstrued the contract and that the evidence is insufficient to support the judgment. In addition, appellant contends that the trial court (1) abused its discretion in denying his motion for a new trial, (2) erroneously determined the amount of damages, and (3) selected the wrong dates for determining prejudgment interest. We reverse the $68,000 damages award and remand the matter for retrial on the amount of damages. In all other respects, we affirm.

Appellant erroneously sued Meribear as "Meridith Baer, individually and dba Meridith Baer & Associates." The judgment correctly names Meribear as the defendant.

Facts

"[I]n summarizing the facts on appeal we 'must consider the evidence in the light most favorable to the prevailing party, giving [it] the benefit of every reasonable inference, and resolving conflicts in support of the judgment.' [Citation.]" (Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 642, fn. 3.)

Appellant is a developer of custom homes in Montecito. In the summer of 2008, appellant put on the market a newly constructed Montecito home (the home). The 11,000-square-foot home was initially listed at $35 million. It was unsold at the time of trial in March 2010, and the price had been reduced to $18.75 million.

The home was unfurnished. To increase its appeal to potential buyers, appellant hired Meribear to "stage" the home with temporary furnishings. Meridith Baer (Baer) is the founder and owner of Meribear.

On September 22, 2008, the parties entered into a written contract. In consideration of $68,000, Meribear agreed to provide "for design and decorating services, and the delivery, installation and rental of furniture, antiques, fine art, linens, rugs, lighting, temporary window treatments, potted plants and/or other furnishings ('the Inventory')." The contract stated that Meribear "shall, in its sole and absolute discretion, determine the design for staging of the [home] and the selection and arrangement of the Inventory."

Appellant was required to pay Meribear $40,000 upon the signing of the contract and $28,000 upon completion of the staging on "approximately October 6, 2008." Appellant used a credit card to pay the $40,000 deposit. The total payment of $68,000 would cover both the staging and the lease of the Inventory for a six-month period beginning on October 6, 2008, and ending on April 5, 2009. If appellant wanted to continue to lease the Inventory after April 5, 2009, the contract required him to pay monthly rent of $6,480.

Baer estimated that it would take from five to seven truckloads of Inventory to stage the home. On September 28, 2008, appellant inspected the first truckload delivered to the home. Appellant testified: "I was shocked, dismayed, confused. The condition of the material was chipped, broken, damaged, worn, old."

On September 28, 2008, appellant sent an email to Baer complaining about the first truckload of Inventory. The next morning, Baer sent a conciliatory email to appellant. In reply, appellant emailed Baer: "IF this is the quality of material you are providing we need to stop now. . . . [¶] . . . [I]t is better to leave it [the home] vacant than to do a botched decorating job."

On September 29, 2009, Baer drove to the home to try to sort things out. When she arrived, one of her trucks was there to deliver a second truckload of Inventory. Baer's workers told her that appellant would not let them unload the truck. Baer met with appellant and arranged for the unloading of the second truckload. She agreed to remove the pieces that appellant found unsatisfactory. Since two truckloads of Inventory had been delivered, not all of the unsatisfactory pieces could fit into the single truck that was there. The truck left with a full load, and Baer told appellant that the remaining unsatisfactory pieces would be removed by the truck that would deliver the third truckload of Inventory.

Before appellant left the home, Baer said to him: " '[Y]ou have to let us do our thing now. You have to give us a chance to do it.' " Baer was under the impression that "everything was fine" and that appellant "was happy with everything we'd agreed with."

The relationship between the parties continued to deteriorate. On September 30, 2008, appellant emailed Baer that, after inspecting the second truckload of Inventory, he felt "strongly that we need to stop the process at this point." Appellant asked Baer when her "truck can pick the items up." Baer interpreted the email as meaning that appellant was " 'not going forward with the staging.' "

On October 1, 2008, Baer emailed appellant that she assumed "we are going forward [with the staging]." Baer said that "over the last week we have purchased a tremendous amount of inventory for this job." Baer asked: "Please make a decision about whether we are doing the job or not. . . . [¶] Are we on or off today?" In reply, appellant emailed: "We are 'off.' Please let me know the ETA [estimated time of arrival] of your truck." Appellant complained that "the pieces you are bringing up are not commiserate [commensurate] with this house." Baer testified that appellant's email "sounded like he was firing us."

Later that same day, Baer sent appellant a conciliatory email. The closing sentences of the email were as follows: "We really want to do a nice job for you and help you sell your house as quickly as possible at the best price. [¶] Please let us operate without feeling you have to manage us and judge us at every turn."

On October 2, 2008, Meribear's president, Brett Baer, emailed appellant that Meribear had "geared up for the job" and that "it would be a shame to pull the plug." Brett Baer assured appellant, "Having experienced previous clients with your anxiety, I am confident that if you let Meridith [Baer] do her magic, you will be happy with the outcome." Later that day, appellant emailed Meridith Baer: "Your furnishings are now causing us real damage by virtue that we cannot clean up and show the home. I believe this is my 4th request: please remove your furniture immediately." Baer replied, "As soon as you send us a letter to move out, in writing, and we will accept a fax, we will book it. [¶] E-mail cannot be considered a valid document. I am at a loss to figure out where you are coming from. . . . I will do everything I can to remove our inventory from your property at the earliest possible time."

At 8:00 a.m. on October 3, 2008, appellant faxed a letter to Baer stating: "This is my 5th attempt at requesting you to remove your wares from [the home]." As to Baer's statement that his "previous email requests to remove the wares [are] not . . . 'a legal document,' " appellant characterized the statement as "very petty and patently absurd."

Baer testified that on October 3, 2008, she discovered that appellant had canceled the $40,000 credit card payment made when the contract was signed. Later that same day, Meribear's counsel emailed and faxed a letter to appellant. Counsel wrote: "Unfortunately, you have chosen to interfere with [Meribear's] ability to complete the job and accordingly . . . we are hereby declaring you in default and we are accordingly terminating the contract." "My client stood ready, willing and able to complete the job as contracted for. You, however, refused to allow them to do so."

On October 6, 2008, Meribear removed its furnishings from the home. The furnishings "went into other jobs." In November 2008 approximately 65 to 70 percent of the Inventory was used to stage a home in Hot Springs. This staging was still in place at the time of trial.

Appellant's Complaint and Meribear's Cross-Complaint

In October 2008 appellant filed a complaint for breach of contract against Meribear. Appellant claimed that Meribear had breached the contract by "twice deliver[ing] furniture and furnishings that did not match the quality or characteristics agreed to be provided."

Meribear filed a cross-complaint against appellant for breach of contract. Meribear claimed that appellant, "without cause or justification, terminated the Agreement, instructed [Meribear] to remove its 'inventory' from [his] property and advised [Meribear] that he would not perform his obligations pursuant thereto."

Statement of Decision

The trial court filed a nine-page statement of decision. The court concluded:

1. The contract "clearly and unambiguously" gave Meribear alone "the final say in how the [home] would be staged and what furnishings would be used to constitute the 'Inventory.' " This plain meaning of the contract " 'may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement.' [Citation.]" Appellant was not "credible in his testimony that purportedly material terms, beyond those expressly contained in the Contract, were intended by the parties to be a part of their agreement."

2. Because Meribear had "absolute and sole discretion" as to the furnishings selected for staging the home, appellant "had no basis to object to any particular piece of furniture." Furthermore, "[b]ecause [appellant] never allowed Meribear to complete the staging, he cannot now complain about the quality of furnishings which may not have even been a part of the final staging."

3. Meribear did not breach the contract. "[T]he furniture was of sufficient quality and . . . Meribear was ready, willing and able to perform on the contract. As Ms. Baer credibly testified, many of the furnishings to which [appellant] objected were excellent examples of exactly the kind of furnishings [appellant] said he wanted - 'old world' or 'old money' pieces. What [appellant] characterized as 'thrift shop' furnishings were often in fact high quality antiques that likely would have been suitable for the staging." Thus, Meribear's "proposed furnishings either would have been suitable as part of the final staging or Meribear would have provided adequate suitable replacements to complete the staging."

4. Appellant "materially breached the Contract by refusing to allow Meribear to complete the staging and by refusing to pay Meribear the contract price for its services." "When asked about [his] emails [to Baer] on cross-examination, [appellant] gave incredible testimony trying either to downplay the emails or change the plain meaning of the emails."

5. "Meribear sustained damages from [appellant's] breach of the Contract in the amount of the Contract's bargained for price for the staging fees, $68,000."

Contract Clause Giving Meribear "Sole and


Absolute Discretion" to Select the Furnishings

The contract includes a clause stating that Meribear "shall, in its sole and absolute discretion, determine the design for staging of the [home] and the selection and arrangement of the Inventory." Appellant contends that the trial court erroneously interpreted this clause as meaning what it says. Appellant argues that the trial court should have construed the clause in the light of extrinsic evidence showing that "[t]he contract clearly welcomes input by [appellant]" and "solicits owner approval."

"In the context of contracts, '[t]he parol evidence rule . . . "generally prohibits the introduction of any extrinsic evidence, whether oral or written, to vary, alter or add to the terms of an integrated written instrument." [Citation.] The rule does not, however, prohibit the introduction of extrinsic evidence "to explain the meaning of a written contract . . . [if] the meaning urged is one to which the written contract terms are reasonably susceptible." [Citation.]' [Citation.]" (In re Estate of Gardner (2010) 187 Cal.App.4th 543, 550.) "[E]ven if a contract is not integrated, extrinsic evidence cannot be used to contradict the contract's terms unless the language is 'reasonably susceptible' to the proposed interpretation. [Citation.] Indeed, unless the language is 'reasonably susceptible' to the proposed meaning, extrinsic evidence cannot even be considered to explain or otherwise shed light upon the parties' intent. [Citation.]" (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1061.)

The clause giving Meribear "sole and absolute discretion" to select the furnishings is not reasonably susceptible to an interpretation that gives appellant a voice in making the selection. Accordingly, any extrinsic evidence supporting that interpretation is inadmissible. (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC, supra, 185 Cal.App.4th at p. 1061.)

We reject appellant's contention that the "sole and absolute discretion" clause is modified by a document referred to in the contract. The reference occurs in the first paragraph of the contract immediately after the description of the staging services. The reference states: "See Initial Room Description from Meridith Baer dated August 7, 2008." The "Initial Room Description" consists of Baer's "initial notes" on suggested furnishings for each room of the house. For example, Baer notes that the following furnishings would be appropriate for a particular area of the living room: "2 sofas, or grouping of chairs[;] decorative pillows, throws[;] side tables[;] coffee table[;] carpet?" We agree with the trial court that these notes do "not change, alter, or dilute the authority granted to Meribear in . . . the Contract regarding design determination."

Baer's "Initial Room Description" notes were included at the end of an email from her to appellant dated August 7, 2008. Appellant focuses on the email's following language that precedes the notes: "[I]f you think we got it wrong anywhere or you want to tweak our work, we will work together on that. Obviously we wouldn't change out the entire house . . . but we definitely want to be on track with your expectations." This language is not part of Baer's "Initial Room Description" notes and, therefore, not a part of the contract. In any event, this language is superseded by the unambiguous "sole and absolute discretion" clause.

The text of the email reads: "It was a pleasure meeting you yesterday and seeing your breathtaking property. Believe me, it was hard to leave the tranquility and beauty of the estate . . . which is how we want all potential buyers to feel! [¶] To that end, I, of course, would like to decorate as many areas as everyone sees fit and I would like to get started right away, as soon as you work [out] our contract details with Brett [Baer]. Then I would start pulling inventory from the warehouse, purchasing what I need and making what I need immediately. [¶] As I mentioned, I am pretty good at 'feeling' my way through rooms as to size and shapes of furniture, but sometimes I get it wrong and have to change things out. We are in agreement, I believe, that we want the house to feel like 'old money' with furniture and accessories and rugs that are luxurious, yet comfortable. It is our goal to melt the buyers' hearts and make them see instantly and seamlessly how they would live in and enjoy the space. [¶] Please give us a chance to do our thing (the process is not initially pretty) and then, if you think we got it wrong anywhere or you want to tweak our work, we will work together on that. Obviously, we wouldn't change out the entire house . . . but we definitely want to be on track with your expectations. It is to all of our benefit to get it right. [¶] Here are my initial notes:" What follows is the "Initial Room Description" referred to in the contract.

We also reject appellant's contention that Baer's subsequent conduct modified the effect of the "sole and absolute discretion" clause. The subsequent conduct consists of Baer's removal from the home of pieces that appellant found to be unsatisfactory. These pieces had been included in the two truckloads of Inventory delivered to the home. By agreeing to remove these pieces, Baer was not relinquishing her discretionary authority under the contract. She was merely trying to accommodate an unhappy client and avoid a lawsuit.

Sufficiency of the Evidence


I

Appellant argues that the evidence is insufficient to support the trial court's finding that the Inventory met the high standard of quality contemplated by the contract. "If there is substantial evidence to support a finding, an appellate court must uphold that finding . . . . [Citations.] An appellate court does not reweigh the evidence or evaluate the credibility of witnesses, but rather defers to the trier of fact. [Citations.]" (Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 958.) " 'We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .' [Citation.]" ( Id ., at pp. 957-958.)

"The usual definitions of substantial evidence apply: it is 'evidence of "ponderable legal significance, . . . reasonable in nature, credible, and of solid value." ' [Citation.] . . . 'The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record. [Citation.]' " (In re Estate of Young (2008) 160 Cal.App.4th 62, 76, 72 Cal.Rptr.3d 520, 531.)

Substantial evidence supports the finding that the Inventory satisfied the requisite high standard of quality. Baer testified that the pieces rejected by appellant were suitable for staging the home. Some of the pieces had scratches, nicks, or dents that Meribear would have touched up before the staging was completed. Other pieces were valuable antiques with a "[b]eautiful patina." "Patina" is "what happens with age to the surface and the color that . . . makes [the antique] special or makes it pleasant to the eye." (2RT 416, lines 1-3) An example of a piece with "a beautiful patina" was "an antique ottoman that actually came out of a shipment from a palace in Italy." Other antiques included an "inlaid chest" that was approximately 150 years old, "a chair from the early 1800s," and a hand-painted, metal lamp that had "been aged beautifully." Some pieces had been brought to the home "to experiment to see" how they would look. These pieces might not be part of the final staging. A chair had dirty upholstery, but it would have been steam cleaned before the final staging. If the upholstery were still dirty after the cleaning, Meribear would have reupholstered it.

The trial court found Baer to be a credible witness: "As Ms. Baer credibly testified, many of the furnishings to which [appellant] objected were excellent examples of exactly the kind of furnishings [appellant] said he wanted - 'old world' or 'old money' pieces." "[T]he testimony of a single witness, even a party, is sufficient to provide substantial evidence to support a factual finding [citation]." (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 171; accord People v. Leigh (1985) 168 Cal.App.3d 217, 221 ["the testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions"].

"Viewing [the] evidence in the light most favorable to [Meribear], giving [it] the benefit of every reasonable inference, and resolving all conflicts in [its] favor, as we must under the rules of appellate review [citation], we conclude that" a reasonable trier of fact could have found that the Inventory met the high standard of quality contemplated by the contract. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

II

Appellant argues that the evidence is insufficient to support the trial court's finding that Meribear was ready, willing, and able to perform its obligations under the contract. We disagree. As discussed above, substantial evidence supports the finding that Meribear was supplying appropriate furnishings for the home. Moreover, Baer testified that she was "certain" that the home would have been staged in a timely manner if appellant had permitted her to complete the job. Baer said that she "had staged hundreds and hundreds of homes" and had "never missed a deadline ever." Baer explained: "[W]e usually install seven or eight jobs a week and move out of five or six houses a week. So furniture is constantly coming and going." "We install very high end large homes every week." Brett Baer testified that the staging would have been completed on time because Meribear had the necessary furnishings in its 45,000-square-foot warehouse "or kn[e]w how to get" them.

III

In its tentative ruling at the conclusion of the trial, the court said: "A reasonable person in the Baers['] position could only interpret [appellant's] very strong language [in his emails] as an anticipatory breach of the contract." "He [appellant] prohibited the other side from completing its performance. It was an anticipatory breach." Appellant maintains that the evidence is insufficient to support the court's finding of an anticipatory breach.

"Breach by repudiation is referred to in the case law as an 'anticipatory breach.' [Citation.] As a matter of definition, an anticipatory breach of contract occurs when the contract is repudiated by the promisor before the promisor's performance under the contract is due. [Citation.]" (Central Valley General Hosp. v. Smith (2008) 162 Cal.App.4th 501, 514.) "The repudiation may be express or implied. An express repudiation is a clear, positive, unequivocal refusal to perform [citations]; an implied repudiation results from conduct where the promisor puts it out of his power to perform so as to make substantial performance of his promise impossible [citations]." (Taylor v. Johnston (1975) 15 Cal.3d 130, 137.)

The court's orally-announced tentative decision was superseded by its subsequent statement of decision, which does not mention "anticipatory breach" or "repudiation" of the contract by appellant before his performance was due. In its statement of decision, the court concluded that appellant had committed an actual, not anticipatory, breach. The court stated that appellant had "materially breached the Contract by refusing to allow Meribear to complete the staging and by refusing to pay Meribear the contract price for its services." We therefore need not consider whether substantial evidence supports the "anticipatory breach" referred to in the court's orally-announced tentative decision. The findings and conclusions expressed in the subsequent statement of decision are controlling. (See Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1756.)

IV

Appellant contends that the evidence is insufficient to support the trial court's finding that he breached the contract by "refusing to allow Meribear to complete the staging." Appellant argues that the evidence shows "[h]e did not want to 'end the agreement' but he wanted the delivery of 'junk' materials stopped." "He merely wanted to stop deliveries of poor quality furnishings . . . , not stop staging of his home."

The court's finding is supported by ample evidence. Meribear agreed to stage the home with temporary furnishings and lease the furnishings to appellant for six months. Appellant, in turn, impliedly agreed to permit Meribear to complete the staging and expressly agreed to pay the contract price of $68,000. A reasonable trier of fact could have concluded that appellant breached his obligation to permit the completion of the staging by (1) informing Baer that the "process" needed to be stopped and that the deal was "off," (2) repeatedly demanding the immediate removal of all of the Inventory delivered to the home, and (3) claiming that the presence of the Inventory was "causing us real damage by virtue that we cannot clean up and show the home."

Appellant contends that the evidence is also insufficient to support the trial court's finding that he breached the contract by "refusing to pay Meribear the contract price for its services." We need not consider this contention because substantial evidence supports the trial court's finding of a breach based on appellant's refusal to permit Meribear to complete the staging. This breach alone warranted the entry of judgment in Meribear's favor.

Motion for New Trial Based on Baer's Alleged Perjury

Appellant maintains that Baer committed perjury and that this perjury taints her entire testimony. The perjury allegedly occurred when Baer testified that on October 3, 2008, she had discovered that appellant had canceled the $40,000 credit card payment. In a motion for new trial, appellant submitted evidence showing that it was not until October 24, 2008, that he disputed the credit card transaction in writing. Appellant claims that the trial court abused its discretion in denying the motion.

"A new trial motion 'is addressed to the judge's sound discretion; [the judge] is vested with the authority, for example, to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact; on appeal, all presumptions are in favor of the order as against the verdict, and the reviewing court will not disturb the ruling unless a manifest and unmistakable abuse of discretion is made to appear.' [Citation.]" (Horsford v. Board of Trustees of California State University (2003) 132 Cal.App.4th 359, 379.)

In its written ruling denying the motion for a new trial, the court stated that it had "reache[d] no conclusion regarding Ms. Baer's credibility on this point" because it was "immaterial to the breach of the contract, which occurred on October 1, 2008, when [appellant] 'stopped the process.' " The court further declared that, irrespective of whether Baer had "remembered incorrectly or lied on the issue," its decision would be unaffected. The court observed that, if the trier of fact believes that a " 'witness testified untruthfully about some things but told the truth about others, [it] may accept the part [it] think[s] is true and ignore the rest.' " (Italics omitted, quoting from CACI No. 5003) The implication of this observation is that, even if Baer lied about when she had learned of the cancelation of the credit card transaction, the court accepted the remainder of her testimony. The court subsequently stated, "It is up to the trier of fact to decide the credibility of witnesses. This judge hasn't changed her mind."

The trial court could lawfully credit the remainder of Baer's testimony regardless of whether she had lied about the timing of the cancelation of the credit card transaction. " '[T]he trier of the facts may reject a part of the testimony of a defendant or any other witness while accepting or believing other portions of his testimony. [Citations.] This rule applies to testimony which is or is claimed to be perjured.' " (People v. Maxwell (1979) 94 Cal.App.3d 562, 575.) Accordingly, the trial court did not abuse its discretion in refusing to grant the motion for a new trial.

Damages

The trial court awarded Meribear the contract price of $68,000 as damages. We agree with appellant that this award was erroneous. Meribear was entitled to recover its lost profits and the costs that it had actually incurred, not the full contract price: "If the owner has, as is here contended, unjustifiably broken the contract and thereby prevented the contractor from performing the same, the contractor who has been and is ready and willing to perform may sue to recover the damages sustained from the breach by the owner. The damages in such a case would consist of the profits he would have made if he had been permitted to complete the work according to the contract. This would not be the entire contract price, but the difference between the unpaid part of the contract price and the reasonable cost of completing that part of the work which he was not allowed to perform. [Citations.] [¶] If at the time the owner interferes the work is substantially complete, so that the portion lacking would come within the maxim, 'De minimis non curat lex,' and the owner refuses to accept the same or to allow further performance, the contractor may treat the contract as performed, the refusal to accept will be considered unjustifiable and the contractor may recover the entire balance unpaid of the contract price. [Citations.]" (Connell v. Higgins (1915) 170 Cal. 541, 549-550.

When appellant prevented Meribear from completing the staging of the home, Meribear's performance under the contract was not substantially complete. Baer estimated that it would take from five to seven truckloads of Inventory to stage the home. (2RT 409) Meribear had delivered two truckloads and had removed one truckload of Inventory. Thus, to complete the staging, Meribear needed to deliver four to six more truckloads of inventory. Furthermore, the contract price included a six-month lease of the Inventory. The lease was supposed to begin on October 6, 2008, the same day that Meribear removed the remainder of the Inventory from the home.

Based upon the instant record Meribear was not entitled to recover damages in the amount of the contract price. Such damages would provide Meribear with an unfair windfall. During the six-month period that the Inventory was supposed to be leased to appellant for the contract price, Meribear mitigated damages by using the Inventory to stage other homes. In November 2008 approximately 65 to 70 percent of the Inventory was used to stage a home in Hot Springs. This staging was still in place at the time of trial.

The rental value of the Inventory was substantial. The parties agreed that, if appellant wanted to continue to lease the Inventory after the six-month period covered by the contract price, appellant would pay monthly rent of $6,480.
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Awarding the contract price as damages would be akin to awarding a landlord the full rent due under a broken lease even though the landlord had mitigated damages by releasing the property soon after the tenant had vacated it. Such an award would result in a double recovery and would violate the fundamental principle that " 'one injured by the breach of a contract . . . is entitled to a just and adequate compensation for such injury, but no more." (Avery v. Fredericksen & Westbrook (1944) 67 Cal.App.2d 334, 336.) Except where punitive damages are recoverable, " '[t]he law will not put him in a better position than he would be in had . . . the contract not been broken.' " (Id .,at p. 337; see also Brandon & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 468 ["The damages awarded should, insofar as possible, place the injured party in the same position it would have held had the contract properly been performed, but such damage may not exceed the benefit which it would have received had the promisor performed"].) We express no opinion on the amount of damages at retrial.

Prejudgment Interest

Since on remand the trial court will redetermine the amount of damages, the court will also redetermine the amount of prejudgment interest. For the guidance of the trial court, we consider the latter issue.

The trial court awarded Meribear prejudgment interest on $28,000 from October 1, 2008 to November 11, 2008, and on $68,000 ($28,000 plus the $40,000 deposit) from November 12, 2008 to the date of judgment. Appellant contends that Meribear held his $40,000 deposit until April 9, 2009, so it was not entitled to interest on the $40,000 until that date. In support of his contention, appellant refers us to evidence showing that, after arbitration, the $40,000 was credited to his account on April 9, 2009. But this does not mean that Meribear held the $40,000 until that date. As Meribear notes in its brief, the credit card company may have held the funds until the completion of the arbitration proceedings. Appellant, therefore, has not shown that the trial court selected the wrong dates for determining prejudgment interest.

Disposition

The judgment's award of damages in the amount of $68,000 is reversed, and the matter is remanded for retrial on the amount of damages. In all other respects, the judgment is affirmed. Each party shall bear its costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J. We concur:

COFFEE, J.

PERREN, J.

Denise De Bellefeuille, Judge


Superior Court County of Santa Barbara

David W. Magnusson; Haws, Record & Magnusson, for Appellant.

Leviton Law Group, Stuart L. Leviton, for Respondent.


Summaries of

Frampton v. Baer

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 17, 2012
2d Civil No. B228002 (Cal. Ct. App. Jan. 17, 2012)
Case details for

Frampton v. Baer

Case Details

Full title:KEVIN FRAMPTON, Plaintiff and Appellant, v. MERIDITH BAER, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

Date published: Jan 17, 2012

Citations

2d Civil No. B228002 (Cal. Ct. App. Jan. 17, 2012)

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