Merrill v. Laboratoire Sebbin
Filed 6/13/08 Merrill v. Laboratoire Sebbin CA4/3
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
PATRICIA MERRILL, Plaintiff and Appellant, v. LABORATOIRE SEBBIN, Defendant and Respondent. | G039383 (Super. Ct. No. 755100) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Reversed and remanded with directions.
Law Offices of Robert G. Dyer and Robert G. Dyer for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
* * *
Introduction
In 1995, Patricia Merrill sued Laboratoire Sebbin (Sebbin) for, among other things, product liability. Merrill and Sebbin reached a settlement. Although the agreement required payment in United States dollars, Sebbin initially attempted to pay the settlement in euros. When Merrill was unable to negotiate Sebbins check, Sebbin issued a new check in United States dollars, for less than the full amount due under the terms of the settlement agreement. Sebbin still has not paid the outstanding portion of the settlement, more than 19 months after it became due and owing.
The trial court entered a judgment requiring Sebbin to pay interest on only the unpaid portion of the settlement amount from the date the entire payment was due, instead of on the entire settlement amount from its original due date. We conclude there is not substantial evidence in the record supporting the trial courts interest award. We therefore reverse the judgment and remand with directions to enter a new judgment requiring Sebbin to pay interest on the entire amount of the settlement from the agreed‑upon due date until the partial payment was made, and then on the remaining unpaid portion of the settlement amount until it is paid in full.
Merrill also appeals from the trial courts denial of her motion for sanctions against Sebbin. Merrills request was made pursuant to an inoperative statute (Code Civ. Proc., 128.6), and was not in compliance with the operative statute (Code Civ. Proc., 128.7). The trial court did not abuse its discretion in denying the sanctions motion.
Statement of Facts and Procedural History
Merrill sued Sebbin on November 1, 1995, for several causes of action, including product liability. She alleged the silicone breast implants manufactured by Sebbin were defective, and caused her health problems when they ruptured after having been implanted in her. Merrill obtained a default judgment against Sebbin. In an earlier appeal, we reversed the default judgment because Merrill had not served a statement of damages on Sebbin before the default was obtained. (Merrill v. Laboratoire Sebbin (Oct. 26, 2004, G033107) [nonpub. opn.].)
The matter was remanded, and the parties ultimately reached a settlement which was formalized in a written settlement agreement (the agreement). Sebbin agreed to pay Merrill One Hundred Ten Thousand Dollars and 00/100s ($110,000 in United States dollars), which was to be paid in full by November 7, 2006.
Sebbin failed to make any payment on November 7, 2006. On November 13, Merrills counsel received a check in the amount of 86,098.94. Merrills counsel was unable to negotiate the check, and therefore returned it to Sebbins counsel with a request for a new check, payable in United States dollars.
On January 22, 2007, Merrills counsel received a check in the amount of $105,000, representing what Sebbins counsel described as a partial payment towards the $110,000 settlement. The appellate record does not reflect that the shortfall has yet been remedied.
Merrill filed a motion to enforce the agreement, pursuant to Code of Civil Procedure section 664.6, for interest, and for sanctions, pursuant to Code of Civil Procedure section 128.6. Sebbin opposed the motion, conceding Merrill was entitled to a judgment against it in the amount of $5,000, but denying her right to either interest or sanctions. The trial courts ruling on the motion reads as follows: Judgment awarded for Plaintiff Merrill against Defendant Laboratoire Sebbin for $5,000. No costs. Plaintiff to prepare Judgment. The minute order did not specifically address either the request for interest or the request for sanctions.
Merrill filed a motion to amend the judgment to include interest on $110,000 from November 7, 2006 until January 22, 2007, and for interest on $5,000 from January 23, 2007 until paid. Sebbin opposed the motion. The trial court granted in part and denied in part the motion: The Court corrects its minute order of May 1, 2007 nunc pro tunc as follows: Judgment awarded for Plaintiff Merrill against Defendant Laboratoire Sebbin for $5,000.00 with interest thereon at 10% per annum from November 7, 2006. No costs are awarded. Plaintiff is to prepare judgment. Judgment consistent with the trial courts order was entered, and Merrill timely appealed.
Discussion[1]
I.
Interest
The first issue we face is what standard of review applies. Merrill suggests that the de novo standard should apply, since her entitlement to interest is a question of law. We disagree. The proper rate of interest is a question of law reviewed de novo (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1585), and interest is due at the rate of 10 percent. The question before us is during what period of time the interest is due.
Generally, we review a judgment to determine whether it is supported by substantial evidence. The doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment. [Citation.] The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. [Citations.] (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58.)
The same standard of review applies when the judgment is entered after a motion to enforce a settlement, rather than after a trial. The trial courts factual findings on a motion to enforce a settlement pursuant to [Code of Civil Procedure] section 664.6 are subject to limited appellate review and will not be disturbed if supported by substantial evidence. [Citation.] (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.)
In opposition to the motion to enforce the agreement, Sebbins counsel offered evidence that Sebbins other checks, written in euros, had previously been negotiated without incident in the United States, and that given the exchange rate on the date the check was received by Merrills counsel, Sebbin actually tendered more than $110,000. Sebbin argued it had therefore substantially complied with the agreement when it sent a check with payment in euros rather than United States dollars. The judgment, however, provides that interest on the outstanding $5,000 accrues from November 7, 2006. If the trial court had found that Sebbin substantially complied with its obligations under the agreement so as to prevent it from having been in breach of the agreement on November 7, 2006, then the court could not have restarted the clock on the award of interest from that date on any portion of the settlement amount. We infer that the trial court found Sebbin was in breach of the agreement on November 7, 2006.
Therefore, we reverse the judgment and remand with directions to the trial court to enter a new judgment awarding Merrill interest at the rate of 10 percent per annum on the amount of $110,000 from November 7, 2006 to January 21, 2007, and interest at the rate of 10 percent per annum on the amount of $5,000 from January 22, 2007 until paid.
II.
The trial court did not abuse its discretion in denying
Merrills request for sanctions.
Merrill requested sanctions from the trial court pursuant to Code of Civil Procedure section 128.6; that section, however, is inoperative, and an award of sanctions could not be made under it. (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 701.) Merrill argues that sanctions should nevertheless have been awarded under Code of Civil Procedure section 128.7. The motion in which Merrill requested sanctions was not served in compliance with section 128.7, subdivision (c)(1), however. The failure to comply with the 21‑day safe harbor provisions is fatal to a section 128.7 motion. (Goodstone v. Southwest Airlines Co. (1998) 63 Cal.App.4th 406, 416.) The trial court did not abuse its discretion by refusing to award sanctions in favor of Merrill.
Merrill also requests in her opening brief that she be awarded her attorney fees on appeal as sanctions against Sebbin. Merrill did not file a separate motion complying with California Rules of Court, rules 8.54(a) and 8.276(a), (b). Merrill is therefore not entitled to be heard on the matter. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1434 [applying former rules of court]; Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402 [same]; In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180 [same].) Merrills request for attorney fees on appeal is denied.
We are not unmindful of Merrills plight. Merrill initiated her claims against Sebbin more than 12 years ago, and she still has not collected the full amount Sebbin agreed to pay to settle the case. More than 19 months after the full amount of the settlement was to be paid, Sebbin has yet to pay the remaining $5,000 due and owing, and it has not provided any explanation for its failure to do so. To call Sebbin recalcitrant at this point would be a gross understatement. But the statutes and rules of court are clear that before sanctions may be awarded by the trial or appellate court, certain procedures must be followed. Merrill did not follow those procedures.
Disposition
The judgment is reversed and remanded with directions to enter a new judgment against Sebbin, awarding Merrill interest at the rate of 10 percent per annum on the amount of $110,000 from November 7, 2006 to January 21, 2007, and interest at the rate of 10 percent per annum on the amount of $5,000 from January 22, 2007 until paid. Appellant to recover costs on appeal.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
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[1] Sebbin failed to file a respondents brief on appeal. We therefore decide the appeal based on the record and Merrills opening brief. (Cal. Rules of Ct., rule 8.220(a)(2).)
