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Nan P. JUDAY, Plaintiff and Respondent, v. ROTUNNO & ROTUNNO, et al., Defendants and Appellants.*
In this legal malpractice action defendants, Vito A. Rotunno, Robert V. Masenga, Rotunno & Rotunno and Rotunno, Rotunno & Masenga, appeal from judgment entered against them and in favor of plaintiff, Nan JuDay.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, her husband, Vance JuDay, and their two daughters lived in Southern California until 1979 when they moved to Greenwich, Connecticut, to enable Mr. JuDay to assume his duties as an executive officer of Arrow Electronics. On December 4, 1980, while he was attending a meeting with other Arrow Electronics executives, Mr. JuDay died in a fire at Stouffers Inn in Harrison, New York. After her husband's death plaintiff immediately moved back to California. In December 1980 she contacted defendant Vito Rotunno, an attorney whom she and Mr. JuDay met when they lived in Southern California. Plaintiff asked Mr. Rotunno to take care of her investments, assist in the probate of Mr. JuDay's estate, and represent plaintiff in a wrongful death action against Stouffers Inn.
On January 5, 1981, Mr. Rotunno wrote a letter to plaintiff stating that through the investment of her funds he would attempt to procure for her an income of $4,500 to $5,000 per month. On January 29, 1981, plaintiff executed a special power of attorney drafted by Mr. Rotunno which authorized him to “act in a manner which, in his sole discretion, will maxamize [sic ] the production of income and minimize investment risk.”
When plaintiff consulted Mr. Rotunno, he and his father, Vito Rotunno, Sr. (not a party to this action), were partners in the law firm of Rotunno & Rotunno. Defendant Robert Masenga was employed as an associate in that law firm. In connection with the firm's representation of plaintiff, Mr. Masenga was responsible for working with the attorneys in Connecticut who were handling the probate of Mr. JuDay's estate. His responsibilities also included preparation and filing of federal estate income tax returns.
Mr. JuDay's net estate was in excess of $1 million. The assets of the estate included: 33,000 shares of Arrow Electronics stock, $787,000; condominium at Lake Arrowhead, California, $64,105; parcel of land in Idaho, $5,000; life insurance policies, $325,000; purchase money promissory note of Robert Guillaume for $145,000, payable to plaintiff and decedent, executed May 1980 and maturing May 1985, secured by a deed of trust on real property in Tarzana, California, payable in monthly installments of $1,728 (Guillaume note); an interest in Baja Cantina, a restaurant, $80,000; and cash, $70,000.
Defendant Rotunno borrowed against the stock by forging plaintiff's signature; when the value of the stock dropped and the lender demanded additional security, Rotunno instead sold the stock for $441,000 and used the proceeds of the sale for his own purposes. Plaintiff received none of the proceeds of the life insurance policies; $300,000 of the proceeds went to Rotunno & Rotunno and the remaining $25,000 could not be traced. Rotunno assigned the Guillaume note to a bank of which he was a director, at a discount of $16,000 or $17,000. In that transaction he signed plaintiff's name without her authorization; in order to conceal the transaction from her, he instructed the maker of the note to continue making payments to plaintiff.
In 1981 Rotunno referred plaintiff to attorney Thomas Girardi for prosecution of a wrongful death action against Stouffers Inn. Plaintiff authorized defendant and Mr. Girardi to handle the action, which was settled in June 1984 for $3.5 million. At the time of the settlement a check for $100,000 was issued to plaintiff and sent to defendant Rotunno. Without plaintiff's consent Rotunno endorsed the check and invested the proceeds in two enterprises (Sala Studios and Ranchco) in which he had an ownership interest. At no time did plaintiff sign a contingency fee agreement with either Rotunno or Mr. Girardi for their legal services in the wrongful death action. They told plaintiff they would charge a fee of 20 percent of any recovery. Instead, Girardi took a 40 percent fee ($1.4 million) of which defendant received $440,000.
Rotunno invested plaintiff's funds in the following enterprises in which he had an ownership interest: Sala Studios, a jewelry business, $350,000; Amalgamated Vulture, a ski equipment business, $125,000; Ranchco, ranch property in Shasta County, $60,000. Rotunno also put $75,000 of plaintiff's money in puts and calls, a sophisticated stock market investment. All of plaintiff's funds invested in Sala Studios were lost; her money invested in Ranchco never was returned to her. Despite plaintiff's repeated requests, Rotunno never provided her with a list of the investments he made for her or with a financial statement of any kind.
Defendant Masenga prepared estate income tax returns for 1981 and 1982, but they were incorrect and the 1982 return was not timely filed. Rotunno wrote two checks to the Internal Revenue Service (IRS) in payment of the 1982 tax; the checks were returned because of insufficient funds. Estate income tax returns for 1983 and 1984 were not filed. The estate incurred penalties of $45,000 for failure to file returns and pay taxes. The IRS claimed the estate and plaintiff, as representative of the estate, owed $600,000 in taxes and placed a lien for taxes and penalties on the assets of plaintiff and the estate.
In September 1981 plaintiff purchased a house in Saratoga, California, for $442,000, encumbered by both first and second trust deeds. Rotunno told plaintiff she could afford the house. However, by 1983 the payments became delinquent and in 1984 plaintiff sold the house for $500,000. On the day escrow closed the IRS seized $169,000, the entire sum which plaintiff realized from the sale. It was only then plaintiff learned that estate taxes had not been paid; Rotunno and Masenga had assured her that the taxes were paid. Because of her fear that the IRS would seize additional assets, plaintiff could not put money in an interest-bearing account or engage in any transaction whereby her social security number would be revealed.
Arrow Electronics made monthly salary continuation payments to plaintiff. She also received workers' compensation payments and social security benefits and payments were made to her on the Guillaume note and the Baja Cantina investment. Checks representing these payments were sent to Rotunno & Rotunno. Masenga endorsed and deposited them, paid plaintiff's bills, and sent her checks for the balance. Plaintiff did not know how much money she had. Rotunno did not put her on a budget and neither he nor Masenga asked her to initiate a budget for herself. They did not tell plaintiff she was spending too much money. On the contrary, when plaintiff asked them how she was doing financially, they assured her she was “doing fine.”
On September 30, 1984, the partnership of Rotunno & Rotunno was dissolved. On October 1, 1984, a new partnership, Rotunno, Rotunno & Masenga, was formed with defendants Rotunno and Masenga as the general partners. The latter partnership was dissolved on February 28, 1985.
In April 1985 plaintiff revoked Rotunno's special power of attorney and in June 1985 commenced the present action. Named as defendants were Vito Rotunno, Robert Masenga, and the law firms of Rotunno & Rotunno and Rotunno, Rotunno & Masenga.1 The first amended complaint sought compensatory and punitive damages on theories of breach of contract, negligence, breach of fiduciary duty, fraud, embezzlement/conversion, intentional infliction of emotional distress and negligent infliction of emotional distress. Before the commencement of trial (by the court without a jury), the parties reached a partial settlement whereby defendants agreed to pay damages of $2 million, regardless of the outcome of the trial, upon extinction of the IRS lien on plaintiff's assets. Plaintiff agreed not to execute against defendants on the judgment. Pursuant to the settlement plaintiff dismissed those causes of action which suggested or were based upon intentional wrongdoing as opposed to negligence, and abandoned her claim of punitive damages. Accordingly, the action went to trial on the causes of action for breach of contract, negligence, breach of fiduciary duty excluding fraud or other intentional acts, negligent misrepresentation and negligent infliction of emotional distress.
Evidence of the facts summarized above was presented. Other evidence pertinent to the issues on appeal was as follows.
Plaintiff's expert Arthur Clark, a business consultant, testified regarding his computation of plaintiff's economic damages. Mr. Clark began by ascertaining the sums of money available for investment and assets of the estate that could have been liquidated by June 30, 1981. These consisted of cash, the life insurance proceeds, the Arrow Electronics stock, the investment interest in Baja Cantina, the Lake Arrowhead condominium and the Idaho lot, for a total of $1,230,000. From this sum Clark deducted the cost of converting the assets into cash (e.g., real estate broker and stock broker commissions), and thereby obtained a net figure of $959,000 available for investment on June 30, 1981. Clark assumed that a prudent financial adviser would have invested that sum in municipal bonds yielding tax-free income, and ascertained the rate of interest paid on such bonds each year from 1981 through 1988 (time of trial). He then deducted from each year's interest his estimate of what the living expenses for plaintiff and her daughters should have been that year, and assumed that the balance of the interest was available for reinvestment the following year. Under the foregoing formula, by 1988 plaintiff would have had a tax-free annual income of $365,000. In 1988 it took $4.7 million to produce such an income.
Regarding plaintiff's non-economic damages Virginia Heenan, a licensed clinical psychologist, testified: She treated plaintiff intermittently from March 1982 to July 1988. In Dr. Heenan's opinion plaintiff suffers from low self-esteem and lack of well-being and self-confidence. Seventy or seventy-five percent plaintiff's emotional problems is attributable to defendant Rotunno because of the following conduct on his part: defendant associated himself with plaintiff's husband and his failure to honor the trust plaintiff placed in him tarnished her memory of her husband; defendant's failure properly to invest plaintiff's money prevented her from establishing herself in a new life following her husband's death and thereby deprived her of a sense of well-being; defendant led plaintiff to believe that wealth is synonymous with happiness and thereby gave her a false standard by which to judge her achievements. Plaintiff felt she had been betrayed and publicly humiliated by defendant. His actions left her “in a deep financial and personal well” and because of him she virtually lost eight years of her life. Plaintiff has been permanently damaged by defendant's conduct. She has a life expectancy of 35 years and during that period she probably will require therapy for total of 5 1/212 years. Anticipated treatment will cost $37,125.
In its statement of decision the trial court found that defendants Vito Rotunno and Robert Masenga breached their fiduciary duty to plaintiff and were negligent in performing the professional services rendered to her. Inasmuch as said defendants were acting as partners or employees of the defendant law firms, those firms are vicariously liable to plaintiff, as are the individual partners of both firms. The court adopted Arthur Clark's calculation of $4.7 million for plaintiff's economic damages, found that plaintiff has suffered and will continue to suffer substantial emotional distress, and fixed her non-economic damages at $500,000 which includes the cost of future therapy. The court further found that defendants Masenga and Rotunno, Rotunno & Masenga are liable for 25 percent ($125,000) of the non-economic damages. (See Civ.Code, § 1431.2.)
Judgment was entered in favor of plaintiff and against defendants Vito Rotunno and Rotunno & Rotunno in the sum of $5.2 million. It was adjudged that defendants Robert Masenga and Rotunno, Rotunno & Masenga are jointly and severally liable with the other defendants for $4,825,000 of the $5.2 million awarded to plaintiff.
Defendants moved for a new trial on the ground (among others) of excessive damages. Following denial of the motion defendants appealed from the judgment.
DISCUSSION
I ECONOMIC DAMAGES
Defendants contend the economic damages awarded by the trial court exceed the actual loss suffered by plaintiff and are the result of the court's improper reliance on expert witness Arthur Clark's calculation of such damages.
A
Civil Code section 3333 provides: “For the breach of an obligation not arising from contract, the measure of damages ․ is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” The foregoing measure of damages “is substantially the same as that for breach of contract prescribed by section 3300; i.e., it tends to give the injured party the benefit of his bargain and insofar as possible to place him in the same position he would have been had the promisor performed the contract [citations].” (Pepitone v. Russo (1976) 64 Cal.App.3d 685, 689, 134 Cal.Rptr. 709; emphasis omitted.) The primary object of an award of damages in a civil action is to grant just compensation to the injured party for his loss (Story v. Gateway Chevrolet Co. (1965) 237 Cal.App.2d 705, 709, 47 Cal.Rptr. 267) and under section 3333 it is within the sound discretion of the trier of fact to select the formula most appropriate to compensate the injured party. (United States Liab. Ins. Co. v. Haidinger–Hayes, Inc. (1970) 1 Cal.3d 586, 599, 83 Cal.Rptr. 418, 463 P.2d 770.)
Arthur Clark's formula for computation of economic damages achieves that goal: It gives plaintiff a sum of money necessary to produce the annual income she would have received had defendant Rotunno prudently invested her funds instead of appropriating them to his own use or investing them in unsound business ventures.
B
Defendants argue that Arthur Clark's formula for calculating economic damages is contrary to the evidence. If the opinion of an expert witness “ ‘is not based upon facts otherwise proved, or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence.’ [Citation.]” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 339, 145 Cal.Rptr. 47.) Defendants argue that under this rule Clark's opinion should have been rejected because in computing the amount of cash, or assets which could have been liquidated by June 30, 1981, Clark included money and assets which defendant Rotunno squandered and assets which plaintiff continued to hold at the time of trial (e.g., interest in Baja Cantina). In so arguing defendants miss the point. Clark's analysis was based on what a prudent investment counselor in Rotunno's position should have done, not on what actually was done with plaintiff's funds and property. Accordingly, the fact that at the time of trial some of the assets and cash included in Clark's formula were gone and others were still held by plaintiff is irrelevant. The important consideration is that the evidence shows the funds and assets included in Clark's formula were part of the decedent's estate and were available for investment on or before June 30, 1981.
Defendants attack the Clark formula on the further ground that his estimate of the living expenses of plaintiff and her family during the period 1981–1988 was lower than their expenses as shown by the evidence. Again, defendants ignore the fact that Clark's analysis was based on what should have been done, not on what actually was done.
Defendants next point to what they claim are mathematical inaccuracies in Clark's formula. Assuming arguendo that such errors are present, reversal of the judgment is not warranted. “A reviewing court must uphold an award of damages whenever possible [citation] and all presumptions are in favor of the judgment [citations].” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61, 118 Cal.Rptr. 184, 529 P.2d 608.) “Uncertainty as to the fact of damage, that is, as to the nature, existence or cause of the damage, is fatal. But the same certainty as to the amount of the damage is not required. An innocent party damaged by the acts of a contract violator [or tortfeasor] will not be denied recovery simply because precise proof of the amount of damage is not available. The law only requires that some reasonable basis of computation be used, and will allow damages so computed even if the result reached is only an approximation.” (Distribu–Dor, Inc. v. Karadanis (1970) 11 Cal.App.3d 463, 470, 90 Cal.Rptr. 231; original emphasis; internal quotation marks omitted.)
Defendants further argue that starting in the year 1984 Mr. Clark's formula included tax-free income of $220,000 per year received by plaintiff from the settlement of the wrongful death action. Defendants note that it was defendant Rotunno who introduced plaintiff to attorney Girardi, who achieved the settlement for plaintiff. Accordingly, defendants argue, Rotunno indirectly conferred on plaintiff a special benefit for which damages awarded against him should be reduced. (See Maben v. Rankin (1961) 55 Cal.2d 139, 144, 10 Cal.Rptr. 353, 358 P.2d 681.) Instead, Mr. Clark's hypothesis severely punished defendants by showing settlement payments after July 1984 as income to plaintiff and holding defendants liable for Rotunno's failure to invest that income for plaintiff even though he ceased to represent her in April 1985. This argument is based on a false premise, for Clark testified that his formula did not include income in the form of settlement payments received by plaintiff.2
II NON–ECONOMIC DAMAGES
A
Citing Quezada v. Hart (1977) 67 Cal.App.3d 754, 136 Cal.Rptr. 815, defendants contend damages for negligent infliction of emotional distress were improperly awarded because such damages are limited to cases involving physical impact and injury to plaintiff. (Quezada, supra, at p. 761, 136 Cal.Rptr. 815.) The Quezada case predates Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, wherein our Supreme Court eliminated the requirement of physical injury for the recovery of damages for negligent infliction of emotional distress. (Id., at pp. 923–931, 167 Cal.Rptr. 831, 616 P.2d 813.) While Quezada was a legal malpractice action and Molien was not, Molien nevertheless casts doubt on the continuing validity of Quezada because the latter case did not purport to establish a special rule for legal malpractice but instead clearly was based on the physical injury requirement rejected by Molien. (Holliday v. Jones (1989) 215 Cal.App.3d 102, 112–113, 264 Cal.Rptr. 448.)
In Molien emotional distress was the result of defendant's negligent act (mistaken diagnosis of syphilis) which adversely affected a personal relationship by causing the breakup of plaintiff's marriage. At least one court has seized on that factor, refusing to extend Molien to permit redress for emotional distress resulting solely from negligent injury to a property interest absent a preexisting relationship between the parties. (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012–1013, 200 Cal.Rptr. 746.) We think such restriction on the operation of Molien is unwarranted by the language of that opinion or any subsequent pronouncement of the Supreme Court. Nevertheless, the requirement Cooper imposes on the recovery of damages for negligent infliction of emotional distress is met in the present case inasmuch as defendants Rotunno and Masenga, as plaintiff's attorneys, stood in a fiduciary relationship to her. (Lee v. State Bar (1970) 2 Cal.3d 927, 939, 88 Cal.Rptr. 361, 472 P.2d 449; Ball v. Posey (1986) 176 Cal.App.3d 1209, 1214, 222 Cal.Rptr. 746.)
B
Defendants further argue that, in any event, the damages for emotional distress are excessive as a matter of law.
The amount of damages is a question of fact, committed first to the discretion of the trier of fact and next to the discretion of the trial court on a motion for new trial. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506, 15 Cal.Rptr. 161, 364 P.2d 337.) An appellate court may interfere on the ground of excessive damages only where the facts are such that the excess appears as a matter of law, or such as to suggest passion, prejudice or corruption on the part of the trier of fact. (DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1240, 242 Cal.Rptr. 423.) “The mere fact that the judgment is large does not validate an appellant's claim that the verdict is the result of passion or prejudice of the jury. Each case must be determined on its own facts. ‘It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive ․ general damages.’ ” (Id., at p. 1241, 242 Cal.Rptr. 423.) If the award is supported by substantial evidence, it must be upheld. (Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 354, 268 Cal.Rptr. 309.) In reviewing a claim of excessive damages an appellate court must determine every conflict in the evidence in favor of the respondent and give him the benefit of every reasonable inference. (Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 241, 116 Cal.Rptr. 733.)
Dr. Heenan's testimony established the devastating effect of defendant Rotunno's conduct on plaintiff's emotional well-being. Plaintiff's emotional problems are permanent and will require further therapy for a total of five and a half years over the remainder of her life. Other evidence showed that after the IRS seized the proceeds from the sale of plaintiff's Saratoga residence, plaintiff did not dare to do anything that would enable the IRS to seize further assets of hers. Thus, she was precluded from maintaining checking or savings accounts, buying or selling real property, and obtaining employment. Plaintiff's financial problems adversely affected her relationship with her daughters. Added to all this was plaintiff's uncertainty regarding her financial condition and the whereabouts of her funds—uncertainty caused by defendants' failure to inform plaintiff on those matters despite her repeated requests. From the foregoing evidence it reasonably may be inferred that plaintiff suffered, and will continue to suffer, substantial emotional distress. On this record it cannot be said as a matter of law that the award of $500,000 for emotional distress is excessive.
III LIABILITY OF DEFENDANT MASENGA
Defendant Masenga contends the trial court improperly held him vicariously liable for the conduct of Rotunno and the law firm of Rotunno & Rotunno because Masenga was merely an employee of those defendants and therefore was subject to their control and direction with regard to the work he did for plaintiff in the course of his employment. (See Resnik v. Anderson & Miles (1980) 109 Cal.App.3d 569, 572, 167 Cal.Rptr. 340.)
The judgment specifies that Masenga is jointly and severally liable with defendants Vito Rotunno and Rotunno & Rotunno. As explained in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 586–587, 146 Cal.Rptr. 182, 578 P.2d 899: “In cases involving multiple tortfeasors, the principle that each tortfeasor is personally liable for any indivisible injury of which his negligence is a proximate cause has been expressed in terms of ‘joint and several liability.’ ․ The terminology originated with respect to tortfeasors who acted in concert to commit a tort, and in that context it reflected the principle ․ that all members of a ‘conspiracy’ or partnership are equally responsible for the acts of each member in furtherance of such conspiracy. [¶] Subsequently, the courts applied the ‘joint and several liability’ terminology to other contexts in which a preexisting relationship between two individuals made it appropriate to hold one individual liable for the act of the other; common examples are instances of vicarious liability between employer and employee․ In these situations, the joint and several liability concept reflects the legal conclusion that one individual may be held liable for the consequences of the negligent act of another. [¶] In the concurrent tortfeasor context, however, the ‘joint and several liability’ label does not express the imposition of any form of vicarious liability, but instead simply embodies the general common law principle, noted above, that a tortfeasor is liable for any injury of which his negligence is a proximate cause. [Original emphasis.]”
Accordingly, Masenga's liability stems not from his status as an employee but from his role of concurrent tortfeasor. As such, he is jointly and severally liable for the entire amount of the indivisible injury to which his conduct contributed.3 (See Brown v. Nolan (1979) 98 Cal.App.3d 445, 451, 159 Cal.Rptr. 469; McCreery v. Eli Lilly & Co. (1978) 87 Cal.App.3d 77, 85, 150 Cal.Rptr. 730.)
IV LIABILITY OF DEFENDANT ROTUNNO, ROTUNNO & MASENGA
This defendant contends joint and several liability was improperly imposed on it for the wrongful acts of the other defendants committed before it was formed (Oct. 1, 1984) because it did not expressly assume the liabilities of the predecessor partnership (Rotunno & Rotunno), which was dissolved September 30, 1984.
“Dissolution ․ does not terminate the partnership which ‘․ continues until the winding up of partnership affairs is completed.’ (Corp.Code, § 15030.) ‘In general a dissolution operates only with respect to future transactions; as to everything past the partnership continues until all pre-existing matters are terminated.’ ” (King v. Stoddard (1972) 28 Cal.App.3d 708, 711, 104 Cal.Rptr. 903.) There was no evidence that the affairs of the partnership Rotunno & Rotunno were wound up following its dissolution. On the contrary, the record indicates that this partnership continued to transact business as it had prior to dissolution; the only change was the formation of a new partnership (Rotunno, Rotunno & Masenga) and the addition of a new partner, defendant Masenga. “The Uniform Partnership Act makes provision, where the business of a dissolved partnership is continued without liquidation of the partnership affairs, for preservation of the rights of creditors of the dissolved partnership, against the new entity․ [¶] When a new partner is admitted into an existing partnership and the business is continued without liquidation of the partnership affairs, creditors of the first partnership are also creditors of the partnership so continuing the business.” (48 Cal.Jur.3d, Partnership, § 94, p. 552, fns. omitted; see also 9 Witkin, Summary of Cal. Law (9th ed. 1989) Partnership, § 58, p. 448; Corp.Code, § 15041.) 4
Under the foregoing principles defendant Rotunno, Rotunno & Masenga is jointly and severally liable for the acts of its predecessor, defendant Rotunno & Rotunno.
V APPEAL NOT FRIVOLOUS
Plaintiff asks that we impose sanctions against defendants for taking a frivolous appeal. (Code Civ.Proc., § 907; Cal. Rules of Court, rule 26(a).) Under the standards enunciated in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 648–651, 183 Cal.Rptr. 508, 646 P.2d 179, it cannot be said the appeal is frivolous.
DISPOSITION
The judgment is affirmed.
FOOTNOTES
1. An additional defendant was the law firm of Rotunno, Moss & Masenga, formed March 1, 1985, and consisting of general partners Masenga and Donald Moss. The trial court granted this defendant's motion for nonsuit.
2. Mr. Clark testified: “In the initial model the income stream had to do with dollars that are now being received. Those dollars have been eliminated since they're being received already, and it would be duplicative to ask for them twice. [¶] So the dollars I would say are correct damages in this case are to receive the investment income stream only, not the stream of dollars that's flowing from an insurance company under a structured settlement.”In insisting that Clark included settlement payments in his formula, defendants erroneously rely on plaintiff's exhibit 178 which was marked for identification only and was not received in evidence.
3. This statement is subject to the following qualification: The trial court allotted to Masenga 25 percent of the fault in causing the non-economic damages. (See Civ.Code, § 1431.2.) The judgment reflects that determination by imposing joint and several liability on Masenga for $4,825,000, consisting of the entire $4.7 million in economic damages and $125,000 of the non-economic damages.
4. Corporations Code section 15041 provides in pertinent part: “(1) When any new partner is admitted into an existing partnership ․, if the business is continued without liquidation of the partnership affairs, creditors of the first or dissolved partnership are also creditors of the partnership so continuing the business.”
LILLIE, Presiding Justice.
JOHNSON and FRED WOODS, JJ., concur.
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Docket No: No. B040006.
Decided: December 10, 1990
Court: Court of Appeal, Second District, Division 7, California.
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