Liquidated Damages: Provision in Stipulation for Judgment an Unenforceable Penalty

  Plaintiff sued on a promissory note for $85,000. The parties agreed to settle for the sum of $38,000, payable in installments over 24 months and entered into a stipulation for entry of judgment. The stipulation provided that if a payment was not made on time the original amount of $85,000 became due.

  Can plaintiff recover the sum of $85,000, minus credit for payments made under the agreement? No. Plaintiff is limited to the sum of $38,000, minus credit for payments made under the stipulation. Purcell v. Schweitzer. Continue reading

Treble Damages For Obtaining a Loan By False Pretense

  A default judgment for obtaining a loan of $202,500 under false pretenses results in treble damages under Penal Code section 496. The case is Bell v. Feibush. Continue reading

NIED Damages Unavailable to Sister Who Believed Brother Had Heart Attack

  In Thing v. La Chusa the California Supreme Court has held that a plaintiff “may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.”

 Scuba tank May a sister recover as a bystander for the emotional distress she suffered when she witnessed the tragic death of her brother while they were scuba diving when she erroneously believed at the time of the incident that her brother had a heart attack – but later learned her brother’s death was caused by a defective regulator?

  No. Thing requires a contemporaneous perception of what caused the injury. Since plaintiff sister did not meaningfully comprehend that a defective product caused the injury, she cannot satisfy the second Thing requirement. Fortman v. Förvaltningsbolaget Insulan AB.

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What is the Measure of Damages For Wrongful Injury to a Pet?

Puppy with an injured paw The Second Appellate District follows the First. In Martinez v. Robledo the court held that damages for the wrongful injury of a pet are not limited to the market value of the pet but the owner may also recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to the injury.

 The court relied heavily on Kimes v. Grosser which held that the owner of a pet cat can recover the “costs of care of the pet attributable to an injury if the costs are found to be reasonable and necessary, and punitive damages if the injury is found to be intentional.”

Emotional Distress Damages Available For Intentional Injury to Pet Dog

  An award to plaintiffs of emotional distress damages for the intentionally injury to plaintiff’s pet dog Romeo by striking it with a baseball bat was recently upheld on appeal. Continue reading