GUNTERT v. CITY OF STOCKTON (1976)

OPINION ON DENIAL OF REHEARINGS

Both plaintiffs and the defendant City of Stockton have filed petitions for rehearing. Except at one point, neither petition evokes any need for modification or ampification of our opinion filed January 12, 1976. We do comment upon plaintiffs' criticism of that section of our opinion (headed by the numeral ‘VI’) which nullified the trial court's damage award for loss of future profits at a fixed monthly rate commencing February 1974 and extending through December 1979.

It will be recalled that in November 1974 this court sustained the injunction which prevented the City of Stockton from terminating the leasehold of plaintiff Guntert. (Guntert v. City of Stockton, 43 Cal.App.3d 203, 117 Cal.Rptr. 601.) That decision on appeal became final in January 1975. The damage phase of the lawsuit went to trial in December 1973 and the judgment for damages was entered February 1974. The trial court judgment for monthly profit losses commencing February 1974 was prospective in relation to the time of the damage trial and entry of the damage judgment. We reversed that part of the judgment (a) because the breach of lease was only partial and did not entitle plaintiffs to prospective damages; (b) because the occurrence of future damages was contingent and uncertain.

In their petition for rehearing plaintiffs argue that we should have sustained the award of monthly profit losses at least until the time the injunction judgment became final, that is, until January 1975. Until then, plaintiffs had no assurance of a victorious lawsuit and no assurance of undisturbed occupancy of the site of their manufacturing plant. Until then, plaintiffs' uncertain prospects prevented them from accepting profitable, long-term business commitments. Thus, they assert, we should have affirmed the award of monthly profit losses at least through January 1975.

At this point plaintiffs overlook the fact that we were reviewing a judgment entered in February 1974, not January 1975. From the trial court's perspective in February 1974, these damages were prospective, contingent and erroneous. It is not the province of an appellate court to make an original award of damages after nullifying an invalid, trial court award.

At this point too, plaintiffs overlook that portion of our opinion which pointed to the availability of remedies for damages which had been prospective at the time of trial. (Supra, 55 Cal.App.3d, p. 153, 126 Cal.Rptr., p. 703.) Indeed, our decision directs the trial court ‘to reconsider in the light of this opinion plaintiffs' claim for profit losses accruing subsequent to the December 1973 trial.’ (Supra, 55 Cal.App.3d, pp. 153—154, 126 Cal.Rptr., pp. 703—704.)

In hearing any claim for damages accruing after December 1973, the trial court will have an opportunity to consider any defenses or reductions claimed by the City of Stockton.

The petitions for rehearing are denied.

FRIEDMAN, Acting Presiding Justice.

REGAN and EVANS, JJ., concur.