Petco v. Farmers & Merchants Bank
Published: Jul. 1, 2003 | Result Date: May 21, 2003 | Filing Date: Jan. 1, 1900 |Case number: NC032112 Verdict – $73,251
Judge
Court
L.A. Superior Long Beach
Attorneys
Plaintiff
Defendant
Experts
Plaintiff
Jerry Epps
(technical)
J. Duross O'Bryan
(technical)
Defendant
David Blumenthal
(technical)
Richard Darling
(technical)
Facts
The plaintiff was the tenant of the defendant, Farmers & Merchant Bank of Long Beach under a written lease for a building located near the intersection of Bellflower Boulevard and 23rd Street in Long Beach. The plaintiff alleged that at the time the complaint was filed on April 3, 2002, the defendant was renovating the shopping center in which the premises are located and that the plaintiff had the right prior to the commencement of construction to approve or disapprove, in writing, any plans for the renovation or redevelopment of the shopping center in which the premises are located and that it had certain parking rights under the terms of the lease. The plaintiff claimed that the defendant breached its lease by failing to provide it with accurate copies of the construction plans, by commencing construction without its approval, by depriving it of parking for its customers, and by managing the construction in such a way as to interfere with and impede its customers' access to the premises and that, therefore, it was damaged by the defendant's conduct.
Settlement Discussions
Each side accused the other of failing to reasonably pursue settlement opportunities. The plaintiff claimed that the defendant failed to honor certain assurances that the defendant would change its construction practices and reduce the plaintiff's construction period losses after an unsuccesful settlement meeting conducted in May of 2002, and that the defendant had unfairly refused to negotiate thereafter. However, according to the defendant, the plaintiff did not submit a formal settlement demand until Feb. 13, 2003 at which date, the plaintiff submitted a Term Sheet which, if the defendant had accepted it, would have had a monetary value of approximately $1 million to the plaintiff. The defendant rejected the proposal. The plaintiff subsequently presented a C.C.P. Section 998 offer for $99,000 plus attorney fees and costs which would be determined by the court. The defendant countered with a C.C.P. Section 998 offer of $60,000, with each side paying its own costs and attorney fees. Neither party accepted the other party's offer.
Damages
The plaintiff sought damages for breach of the lease and breach of the implied covenant of "quiet enjoyment" in the sum of $466,000.The defendant argued that it did not breach the lease or damage the plaintiff and that if there were damages they were limited to construction period damages of $60,000. The defendant further argued that it made all appropriate disclosures to the plaintiff and the contractor that the defendant had hired for the construction project had managed the project in a professional and competent manner.
Result
The jury found 12-0 that the defendant had breached the lease, 12-0 that the said breach caused damage to the plaintiff, and 11-1 that the plaintiff was damaged in the sum of $73,251. Notwithstanding the foregoing, and notwithstanding the plaintiff was awarded more than the amount offered in the Bank's 998 offer, because the Bank prevailed on three out of four causes of action in the complaint, including obtaining a nonsuit on plaintiff's claim for interference with plaintiff's claim for interference with prospective economic advantage, and because plaintiff was awarded only 15.7 percent of its claimed damages, the Bank has filed a motion for determination that it be deemed the "prevailing" party and that it be awarded attorneys fees and costs under the contract. The plaintiff reported that it will oppose the motion and that it intends to file its own motion that it be deemed the prevailing party and that the plaintiff be awarded attorneys fees and costs under the contract. Counsel have agreed that both motions may be heard on the same date, which date has not been set as of this writing, but is expected to be a date in July, 2003.
Other Information
In December of 2002 and January 2003, the parties attended 4 separate mediation sessions conduction through ADR by Retired Long Beach Judge Victor Barrera. Those mediation sessions did not produce a settlement and concluded with each side steadfastly maintaining its position and accusing the other of being unrealistic and misguided in its expectations. During trial, the plaintiff made an offer to settle for $300,000 in damages and $375,000 in attorney fees, for a total of $675,000 to settle the case and invited a counter-offer and further negotiations. The defendant rejected the plaintiff's demands and did not counter-offer.
Deliberation
three days
Poll
12-0 (liability), 11-1 (damages)
Length
eight days
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