Margott v. Gem Properties, Inc.

• Decision Date: 29 October 1973
• Citation: 111 Cal.Rptr. 1,34 Cal. App. 3d 849
• Court: California Court of Appeals
• Parties: Constance M. MARGOTT, Plaintiff and Respondent, v. GEM PROPERTIES, INC., a California corporation, and Max D. Kessler, Defendants and Appellants. Civ. 41383.

Page 1

111 Cal.Rptr. 1

34 Cal.App.3d 849

Constance M. MARGOTT, Plaintiff and Respondent, v.GEM PROPERTIES, INC., a California corporation, and Max D. Kessler, Defendants and Appellants.

Civ. 41383.

Court of Appeal, Second District, Division 1, California.

Oct. 29, 1973.

As Modified Nov. 5, 1973.

Hearing Denied Dec. 27, 1973.

Alton I. Leib, Beverly Hills, for defendants and appellants.

Sull Lawrence, Beverly Hills, for plaintiff and respondent.

THOMPSON, Associate Justice.

In this appeal from a judgment setting aside a sale under a deed of trust for fraud and awarding incidental, compensatory and punitive damages, appellants contend: (1) the award of compensatory damages is not supported by substantial evidence; (2) the award of punitive damages is excessive in view of the amount of compensatory damages allowed by the trial court; (3) the judgment lacks factual support because respondent failed to establish that she had tendered payment of the note secured by the deed of trust; (4)the trial court erred in denying appellants' motion to offset against the judgment amounts owed by respondent on an unrelated judgment acquired by appellants by assignment; and (5)the trial court erred in offsetting from respondent's judgment the unpaid balance owed to appellants by respondent on the note secured by the deed of trust.¹

We summarily reject appellants' contentions of lack of substantial evidence supporting the trial court's award of compensatory damages, excessive punitive damages, and failure of respondent to establish a tender of amounts due on the note secured by deed of trust.Appellants' opening brief contains no summary of material facts bearing on those issues as required by Rule 13,California Rules of Court.Since each issue, including the relationship of the amount of punitive damages to the award of compensatory damages (see2 Witkin, Summary of Cal.Law (7th ed.) Torts, § 400, and cases there cited) involves a question of fact, appellants' omission prevents this court from considering his contentions unless we ourselves search the record for error.That we will not do.(McKeon v. Santa Claus of Cal., Inc., 230 Cal.App.2d 359, 362, 41 Cal.Rptr. 43.)

Appellants' contentions with respect to error of the trial court in dealing with offsets against the judgment are, however, meritorious.At the conclusion of the trial, the court indicated its decision.It stated that it would find that respondent was obligated to appellants on a promissory note secured by a deed of trust on specified real property and that, at a time when approximately $7,700 was due upon the note, appellants, acting fraudulently, caused an illegal trustee's sale of the property and acquired respondent's interest in it.The court indicated that it would declare the trustee's sale void and award respondent compensatory damages of $100, punitive damages of $10,000, and attorneys' fees of $2,500.Before proposed findings of fact were submitted by respondent as required by the court, appellants gave 'notice of motion to set off claim against judgment.'Declarations filed in support of the motion establish that appellants had acquired by assignment for valuable consideration a valid enforceable judgment against respondent in the amount of $12,445.56.The declaration discloses the existence of other judgment and tax liens against respondent which apparently render the assigned judgment uncollectible.Respondent did not dispute the existence or validity of the assigned judgment or appellants' ownership of it.Instead, she filed a declaration of her counsel asserting that the amount respondent owed appellants on the note secured by deed of trust should be offset against the judgment to be rendered by the court.The declaration states also that, prior to the time that appellants acquired their interest in the assigned judgment which they sought to offset, respondent had entered into a contingent fee agreement with her counsel obligating her to pay him 40 percent of amounts received by her and securing counsel's right to payment by a lien upon the cause of action and any judgment obtained by respondent.

Before the date set for hearing on the motion, respondent submitted proposed findings of fact and conclusions of law and a judgment incorporating the indicated findings and conclusions of the trial court.The proposed findings, conclusions and judgment set off against the amounts found owing to respondent because of appellants' fraud the amount due from respondent to appellants on the promissory note.On respondent's motion, a hearing on the proceeding initiated by appellants, which sought to establish their different offset, was continued.Prior to the new date set for hearing on that motion, the trial court signed and filed the proposed findings of fact and conclusions of law as submitted by respondent.It accordingly entered a judgment offsetting the amount due from respondent on the note.When appellants' motion to offset was heard, it was denied.The effect of the trial court rulings is to discharge respondent's secured obligation to appellants, leaving the latter with an unsecured and on the record apparently uncollectible judgment against respondent.

The record does not support the action of the trial court with respect to the offset.Our Supreme Court has expressed the governing principle as: '(A)court of equity will compel a set-off when mutual demands are held under such circumstances that one of them should be applied against the other and only the balance recovered.The insolvency of the party against whom the relief is sought affords sufficient ground for invoking this equitable principle . . ..And a judgment debtor who has, by assignment or otherwise, become the owner of a judgment or claim against his judgment creditor, may go into the court in which the judgment against him was rendered and have his judgment offset against the first judgment. . . .'(Harrison v. Adams, 20 Cal.2d 646, 648--649, 128 P.2d 9, 11;see also5 Witkin, Cal. Procedure (2d ed.) Enforcement of Judgment, § 212, and cases there cited.)Although it is commonly stated that the trial court has discretion in enforcing the right of offset, the discretion must be exercised within legal limits.Thus, unless the judgment creditor establishes the existence of facts supporting some equitable principle precluding it, offset is a matter of right (Norman v. Berney, 235 Cal.App.2d 424, 434, 45 Cal.Rptr. 467), at least where the judgment creditor is insolvent.(California Cotton Credit Corp. v. Superior Court, 127 Cal.App. 472, 474, 15 P.2d 1108, citingHobbs v. Duff, 23 Cal. 596, 629;see alsoRolling Mill Co. v. Ore and Steel Co., 152 U.S. 596, 616, 14 S.Ct. 710, 38 L.Ed. 565.)

Here the record compels the inference of insolvency of respondent judgment creditor.Here also the record is barren of facts justifying a denial of appellants' right to offset their separate judgment claim on respondent against the judgment awarded respondent in the case at bench.Respondent argues that denial of the offset should be sustained because: (1) the secured note from respondent to appellants was due and hence properly offset prior to the assigned claim; (2) the judgment in the case at bench was assigned by respondent to respondent's attorney prior to the time appellants' motion to offset was denied; (3) the record supports the inference that appellants were assigned the judgment which they seek to offset for collection only and not as beneficial owners; (4) offset should not be allowed against punitive damages; and (5) a lien granted by respondent to her attorney to secure a contingent fee of 40 percent of all ...