Filed 4/15/19; part. pub. & mod. order 5/10/19 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIFTH APPELLATE DISTRICT

TED SWITZER,
                                                                        F077206/F077493
        Cross-complainant and Appellant,
                                                                   (Super. Ct. No. 11CECG04395)
                 v.

ROBERT CLARK “SONNY” WOOD II et al.,                                       OPINION
        Cross-defendants and Respondents.



        APPEAL from a judgment of the Superior Court of Fresno County. Mark W.
Snauffer, Judge.
        Gregory L. Altounian and Michael Carrigan for Cross-complainant and Appellant.
        Robert Clark “Sonny” Wood II, in pro. per.; and Timothy D. McGonigle, for
Cross-defendants and Respondents.
                                                    -ooOoo-
        Appellant Ted Switzer (Switzer or appellant) prevailed at trial against cross-
defendants Robert Clark “Sonny” Wood II and Access Medical, LLC (Wood and Access
Medical or respondents) on causes of action that included fraud, conversion of property
and treble damages under Penal Code1 section 496. The present appeal focuses on the
section 496 causes of action. Although section 496 defines a criminal offense, it also
provides an enhanced civil remedy in the event there has been a violation of the statute—
that is, where a person has knowingly received, withheld or sold property that has been
stolen or that has been obtained in any manner constituting theft. (§ 496, subd. (a)
(§ 496(a)).) The enhanced civil remedy authorized by the statute is that any party injured
by the violation of section 496 may file an action for “three times the amount of actual
damages” sustained, and for costs of suit and reasonable attorney fees. (§ 496, subd. (c)
(§ 496(c)), italics added.) Here, even though the jury returned a special verdict that found
Wood and Access Medical violated section 496(a), the trial court declined to award treble
damages to Switzer under the statute. The trial court reasoned that, despite the literal
wording of section 496(c), the Legislature could not have intended to apply the treble
damage remedy to wrongful conduct committed in the context of a joint venture or
preexisting business relationship where ordinary fraud and breach of contract remedies
would be available. In subsequent posttrial orders, the trial court also denied two motions
filed by Switzer: (i) a motion for attorney fees premised on section 496(c) relating to
Switzer’s cross-complaint, and (ii) a motion to amend the judgment to add a successor
entity as a new judgment debtor.
       Switzer appeals from the judgment, as a partial appeal only, arguing that the trial
court erred in failing to award treble damages as required under the clear terms of section
496(c). Switzer further argues the trial court or jury erred in calculating the amount of
prejudgment interest, which he asserts should be corrected at this time. Finally, Switzer
claims the trial court erred in denying the portion of his motion for attorney fees premised
on section 496(c), and additionally erred in denying his motion to modify the judgment to
add an alleged successor entity as an additional judgment debtor.

1      Unless otherwise indicated, all further statutory references are to the Penal Code.


                                             2.
       We conclude that Switzer is correct on the legal issues raised under section 496(c),
including his entitlement to treble damages. That statute is clear and unambiguous, and
its remedial provisions should be applied where, as here, a clear violation of section
496(a) has been found. Accordingly, the judgment is reversed, in part, and the matter is
remanded to the trial court to enter a modified judgment that includes treble damages on
the section 496 causes of action. Furthermore, the trial court’s denial of Switzer’s motion
for attorney fees premised on section 496(c) is reversed, and the matter is remanded to
the trial court for further proceedings to determine the appropriate amount of attorney
fees to be awarded pursuant to section 496(c), after which a new order shall be entered
awarding the amount of section 496(c) attorney fees so determined. In all other respects,
the judgment and orders of the trial court are affirmed.
                       FACTS AND PROCEDURAL HISTORY
The Pleadings
       For purposes of the present appeal, the relevant pleading is Switzer’s cross-
complaint, which was filed on June 3, 2013. In that cross-complaint, Switzer alleged
direct claims against Wood and Access Medical for, among other things, breach of
contract, fraud, breach of fiduciary duty/constructive fraud, conversion, negligence, and
for the civil remedies provided by section 496(c). In addition to the direct claims
described above, Switzer’s cross-complaint also alleged several derivative claims on
behalf of the two-member limited liability company, Flournoy Management, LLC
(Flournoy), of which Switzer was the non-managing member and Wood was the
managing member. Switzer’s derivative claims on behalf of Flournoy included causes of
action against Wood and Access Medical for breach of manager’s duty, fraud,
conversion, negligence, and for the civil remedies provided by section 496(c).
       Although the allegations in Switzer’s cross-complaint are multifaceted and
complex, it appears that the crux of Switzer’s claims arose out of a joint venture or
business relationship he entered into with Wood in 2011 that lasted only a short time.

                                             3.
Apparently, both Switzer and Wood, individually or through shell companies, had been
in the business of selling medical devices, including spinal implants. In May of 2011,
they agreed to go into business together. A limited liability company (i.e., Flournoy) was
formed and a partnership or joint venture arrangement was agreed to. Under the joint
venture arrangement, income from their business enterprises would flow to Flournoy,
then after certain reimbursements and expenses were paid, profits would be distributed in
equal shares to Wood and Switzer. According to the allegations of the cross-complaint,
not long after this business venture got started, Wood deceitfully took possession of,
converted, and withheld for himself large sums of money or income belonging to Switzer
and/or to Flournoy, and Wood also converted valuable property items belonging to
Switzer (i.e., spinal implant inventory) and, upon selling said property items, kept the
profits for himself.
       In both his direct and derivative claims under section 496, Switzer’s cross-
complaint asserted, based on relevant foundational allegations referred to in the pleading,
that “[t]he acts of Mr. Wood constitute a violation of Penal Code § 496(a), thus entitling
Mr. Switzer to recover from Mr. Wood treble the amount of actual damages sustained by
Mr. Switzer, along with Mr. Switzer’s costs of suit and reasonable attorney’s fees ….”
The Trial and Verdict
       The case was tried before a jury for a period of 21 days, beginning on August 22,
2017. The jury began its deliberations on October 3, 2017, and finally returned a special
verdict on October 11, 2017. In the jury’s special verdict, it found in favor of Switzer
and against Wood and Access Medical on Switzer’s direct claims in his cross-complaint
for breach of contract, intentional misrepresentation, concealment, breach of fiduciary
duty, conversion, negligence, and the civil claim for violation of Penal Code section 496.
A second part of the special verdict form addressed Switzer’s derivative claims on behalf
of Flournoy. There, the jury found in favor of Switzer and against Wood and Access
Medical on Switzer’s derivative claims in the cross-complaint for concealment, breach of

                                             4.
manager’s duty, negligence, and the civil claim for violation of Penal Code section 496.
The jury also specifically found that Wood and Access Medical had acted with malice,
fraud or oppression.
      Where called upon to do so on the special verdict form, the jury made specific
findings on the amount of actual damages sustained by Switzer on his causes of action.
For example, on Switzer’s conversion cause of action, the jury found that the value of the
spinal implants converted by Wood and Access Medical was $513,083, and that
Switzer’s damages for lost profits due to the conversion was also $513,083. Other
damages found to have been sustained by Switzer included $293,904.67 in unreimbursed
expenses, and $318,666 in lost partnership profits for sales made in 2011. As to
Switzer’s direct section 496 claim, the actual damages sustained by Switzer due to
Wood’s and Access Medical’s violation of section 496 were found to be the sum of
$1,289,165. As to Switzer’s derivative claim on behalf of Flournoy for Wood’s and
Access Medical’s violation of section 496, the actual damages were found to be
$401,232.
      The jury also inserted, where requested to do so on the special verdict form,
amounts of prejudgment interest. In particular, the jury awarded prejudgment interest of
$64,732 on Switzer’s conversion causes of action, and $77,283 on Switzer’s non-
conversion claims. As to Switzer’s derivative causes of action on behalf of Flournoy, the
jury awarded prejudgment interest of $50,620.
      The jury’s special findings of fact concerning the section 496 causes of action
were clear, definite and complete, answering in the affirmative each of the following
specific questions covering the elements of a section 496(a) violation: “1. Did Mr. Wood
obtain by theft property belonging to Mr. Switzer or conceal or withhold or aid in
concealing or withholding such property from Mr. Switzer? [¶] … [¶] 2. Did Mr. Wood
know the property was obtained by theft at the time he received, withheld, concealed,
aided in concealing or withholding the property from Mr. Switzer? [¶] … [¶] 3. Did Mr.

                                            5.
Wood’s violation of Penal Code section 496, subdivision (a), cause Mr. Switzer to suffer
injury, damage, loss or harm?” The fourth question to the jury concerning this claim was
“[w]hat is the amount of Mr. Switzer’s actual damages caused by Mr. Wood’s violation
of Penal Code section 496, subdivision (a)?” to which the jury responded by inserting the
following amount: “$1,289,165.00.” We note the jury made identical findings of fact on
Switzer’s derivative claim under section 496 on behalf of Flournoy, with the only
difference being that the amount of actual damages was $401,232. On both the direct and
derivative claims under section 496, the same findings of fact were made against both
Wood and Access Medical.
Postverdict Briefing
       After the verdict, Switzer submitted to the trial court a proposed judgment
premised on the special verdict which recapitulated the special verdict and, pursuant to
section 496(c), included an award of three times the amount of actual damages found by
the jury to have been suffered by Switzer and Flournoy as a result of Wood’s and Access
Medical’s violations of section 496. Thereafter, Wood and Access Medical submitted
objections to the proposed judgment, arguing among other things that section 496(c) was
not applicable in this case because the statute was only intended to apply to claims by
common carriers of theft of commercial cargo and not to ordinary business disputes.
This objection relating to section 496(c)’s treble damage remedy had not been raised by
Wood or Access Medical in any previous filing in the trial court; it had not been raised in
their motion for nonsuit or in their motion for directed verdict.
       In response to Wood’s and Access Medical’s objections to the proposed judgment,
the trial court permitted Wood and Access Medical to file an opposition along with their
own proposed judgment. Thereafter, Wood and Access Medical filed a proposed
judgment deleting the parts of the judgment which awarded treble damages and attorney
fees pursuant to section 496(c). Switzer objected, arguing that inclusion of an award of
treble damages and attorney fees in the judgment was mandatory under section 496(c).

                                             6.
Switzer filed a reply brief to the trial court, explaining further that section 496(c) is
applicable in this case “and in every case where property has been acquired by theft.”
       On November 27, 2017, the trial court issued its tentative statement of decision
and proposed judgment on special verdict. In that document, the trial court agreed with
the analysis provided by Wood and Access Medical that section 496(c) was inapplicable.
The tentative statement of decision and proposed judgment did not include treble
damages or attorney fees under section 496(c). The trial court explained that application
of the treble damages provision of section 496 “in standard breach of contract, fraud,
conversion, and misrepresentation claims … would [lead][2] to an unreasonable result.”
The trial court stated the correctness of its result was further reinforced by legislative
history indicating the treble damage remedy had a narrow purpose of “ ‘tak[ing] the profit
out of cargo thievery.’ ”
       Switzer filed objections to the trial court’s tentative statement of decision and
proposed judgment. Wood and Access Medical thereafter filed a response to the
objections, to which Switzer filed a reply.
The Judgment
       On January 12, 2018, the trial court entered its final statement of decision and
judgment on special verdict (the judgment). The portions of the judgment relating to the
application of section 496(c) were identical to what the trial court had expressed in its
tentative statement of decision and proposed judgment. That is, the trial court found
section 496(c) was inapplicable. As noted, the trial court’s decision to decline to award
treble damages under section 496(c) was based on the trial court’s reasoning that
allowing the treble damages remedy in standard breach of contract, fraud or similar


2      The actual wording used in the tentative statement of decision and proposed
judgment was that applying section 496 to cases such as this one would “lend to an
unreasonable result.” We assume that was a typographical error and the trial court
intended to say “lead” to an unreasonable result.


                                               7.
business disputes “would [lead] to an unreasonable result.” Furthermore, the trial court
explained: “In the Court’s view, the Legislature could not have intended Penal Code
section 496 to apply in the case of an ordinary contractual dispute, or fraud case, arising
in the course of an ongoing legitimate business relationship between the parties. [¶] The
Court therefore declines to award treble damages in this case.”
Switzer’s Motion to Amend Judgment to Name Additional Judgment Debtor
       On February 1, 2018, Switzer filed a motion to amend the judgment to, among
other things, add as a judgment debtor Alpine Medical Management Group, LLC, aka
Alpine Surgical Group (Alpine), which was allegedly the successor company to Access
Medical at one or more of the hospitals from which Wood and Access Medical stole
Flournoy’s business and profits. Wood and Access Medical opposed the motion, arguing
that Alpine was not shown to be the successor entity of Access Medical. The trial court
denied the motion on March 6, 2018.
Switzer’s Motion for Attorney Fees
       On February 1, 2018, Switzer filed a motion for attorney fees seeking, among
other things, an award of attorney fees against Wood and Access Medical based on
section 496(c). The attorney fees sought by the motion related to three different or
severable parts of the overall litigation: (1) attorney fees on “the Flournoy cross-
complaint” pursuant to a provision in the parties’ operating agreement relating to
Flournoy; (2) attorney fees on “the Switzer’s records inspection complaint” as authorized
by former Corporations Code section 17106, subdivision (g); and (3) attorney fees on
“the Switzer Cross-Complaint” as authorized by section 496(c). The trial court
acknowledged all three aspects of the attorney fee motion, but it only granted attorney
fees relating to the Flournoy cross-complaint and Switzer’s records inspection complaint.
Therefore, implicitly, the trial court denied the attorney fee motion under section 496(c)
relating to Switzer’s cross-complaint.



                                             8.
Notices of Appeal
       Switzer filed two notices of appeal; one relating to his appeal from the judgment
and from the order denying his motion to amend the judgment (F077206), and a second
notice relating to the trial court’s denial of his motion for attorney fees (F077493). The
two appeals have been consolidated under case number F077206.
                                      DISCUSSION
I. Standard of Review
       “Questions of statutory interpretation, and the applicability of a statutory standard
to undisputed facts, present questions of law, which we review de novo.” (Jenkins v.
County of Riverside (2006) 138 Cal.App.4th 593, 604.) A question of the proper measure
of damages in a particular case is likewise an issue of law subject to de novo review, and
such issue may be considered on appeal even though the appellant did not move for a
new trial. (Christiansen v. Roddy (1986) 186 Cal.App.3d 780, 789; Glendale Fed. Sav. &
Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 122; see also,
Uneedus v. California Shoppers, Inc. (1978) 86 Cal.App.3d 932, 943–944 [interpretation
of treble damages statute is a question of law].) Similarly, whether a legal basis exists for
an award of attorney fees is a question of law subject to de novo review. (Dell Merk, Inc.
v. Franzia (2005) 132 Cal.App.4th 443, 450.)
       Where there is a clear error of law in the calculation of damages, an appellate
court has the power to modify the judgment to correct that error. (Maughan v. Correia
(2012) 210 Cal.App.4th 507, 523.) This includes the power to correct a clearly improper
award of prejudgment interest. (See Pacific-Southern Mortgage Trust Co. v. Insurance
Co. of North America (1985) 166 Cal.App.3d 703, 716–717; Johnson v. Marr (1935) 8
Cal.App.2d 312, 315.)
       Finally, as to the motion to amend the judgment to name an additional judgment
debtor, we review the trial court’s ruling under the abuse of discretion standard, with any



                                             9.
factual findings relied upon by the trial court reviewed for substantial evidence. (Wolf
Metals Inc. v. Rand Pacific Sales Inc. (2016) 4 Cal.App.5th 698, 703.)
II. Treble Damages Pursuant to Section 496
       Switzer argues the trial court erred in failing to apply the treble damage remedy
specified in section 496(c). We agree.
       We begin with the express terms and structure of the statute. Section 496(a)
defines the criminal offense of what is commonly referred to as receiving stolen property,
while section 496(c) sets forth a right to special civil remedies where a violation of
section 496(a) has occurred. Specifically, section 496(a) states in relevant part as
follows: “Every person who buys or receives any property that has been stolen or that
has been obtained in any manner constituting theft or extortion, knowing the property to
be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling,
or withholding any property from the owner, knowing the property to be so stolen or
obtained, shall be punished by imprisonment in a county jail for not more than one year,
or imprisonment pursuant to subdivision (h) of Section 1170.… [¶] A principal in the
actual theft of the property may be convicted pursuant to this section.” Subdivision (b) of
section 496 describes a variation of the offense applicable to the activities of swap meet
vendors. Section 496(c) then plainly states as follows: “Any person who has been
injured by a violation of subdivision (a) or (b) may bring an action for three times the
amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable
attorney’s fees.” (Italics added.)
       The language of section 496(c) is clear and unambiguous. (Bell v. Feibush (2013)
212 Cal.App.4th 1041, 1045–1047.) A criminal conviction is not a prerequisite to
recovery of treble damages. All that is required for civil liability to attach under section
496(c), including entitlement to treble damages, is that a “violation” of subdivision (a) or
(b) of section 496 is found to have occurred. (Bell v. Feibush, at pp. 1045–1047.) A
violation may be found to have occurred if the person engaged in the conduct described

                                             10.
in the statute. (Lacagnina v. Comprehend Systems, Inc. (2018) 25 Cal.App.5th 955, 970;
Bell v. Feibush, supra, 212 Cal.App.4th at p. 1045 [a “violation” occurs “when the
subject engages in” the conduct described in the statute].) While section 496(a) covers a
spectrum of impermissible activity relating to stolen property, the elements required to
show a violation of section 496(a) are simply that (i) property was stolen or obtained in a
manner constituting theft, (ii) the defendant knew the property was so stolen or obtained,
and (iii) the defendant received or had possession of the stolen property. (Lacagnina v.
Comprehend Systems, Inc., supra, 25 Cal.App.5th at p. 970 [elements of § 496 offense
stated].)
       A violation of section 496(a) may, by its own terms, relate to property that has
been “stolen” or “that has been obtained in any manner constituting theft or extortion.”
(§ 496(a), italics added.) As reflected in Bell v. Feibush, supra, 212 Cal.App.4th at
p. 1048, the issue of whether a wrongdoer’s conduct in any manner constituted a “theft”
is elucidated by other provisions of the Penal Code defining theft, such as Penal Code
section 484. In 1927, the Legislature consolidated the crimes of larceny, embezzlement,
and theft by false pretense in Penal Code section 484, subdivision (a), under the single
term “theft.” (Bell v. Feibush, at p. 1048; see also People v. Vidana (2016) 1 Cal.5th 632,
640–641 [although the distinctive substantive elements of each offense remained the
same, each constituted the crime of “theft”]; People v. Gomez (2008) 43 Cal.4th 249,
255, fn. 4.) Section 484, subdivision (a), states as follows: “Every person who shall
feloniously steal, take, carry, lead, or drive away the personal property of another, or who
shall fraudulently appropriate property which has been entrusted to him or her, or who
shall knowingly and designedly, by any false or fraudulent representation or pretense,
defraud any other person of money, labor or real or personal property, or who causes or
procures others to report falsely of his or her wealth or mercantile character and by thus
imposing upon any person, obtains credit and thereby fraudulently gets or obtains



                                            11.
possession of money, or property or obtains the labor or service of another, is guilty of
theft.” (Italics added.)
       In Bell v. Feibush, supra, 212 Cal.App.4th 1041, the trial court awarded treble
damages to the plaintiff under section 496(c) based on evidence presented in a default
prove-up hearing that the defendant had committed theft by false pretenses in violation of
section 496(a). (Bell v. Feibush, at pp. 1043–1044.) The defendant appealed on several
grounds. Bell v. Feibush affirmed the award of treble damages, holding that (i) theft by
false pretenses constituted a violation of section 496(a), and (ii) a criminal conviction was
not a prerequisite to civil liability for treble damages. (Bell v. Feibush, at pp. 1045–1046,
1048–1049.) The court observed that where a violation of section 496(a) or 496(b) is
established in a civil action, as was the case there, “a person injured by the violation may
recover treble damages under section 496(c).” (Bell v. Feibush, at p. 1045.) Further, in
affirming the treble damage recovery Bell v. Feibush rejected the defendant’s policy
argument that allowing treble damages under section 496(c) would circumvent traditional
limits on civil remedies: “Our decision to affirm the default judgment is based on
straightforward statutory interpretation.” (Bell v. Feibush, at p. 1049.) That being the
case, such “policy concerns” would have to be addressed to the Legislature. (Ibid.) In
sum, since a violation of section 496(a) had been shown (i.e., theft by false pretenses),
treble damages were properly awarded under section 496(c).
       In the present case, it is undisputed that the jury specifically and unequivocally
found all the factual elements necessary to establish that Wood and Access Medical had
engaged in conduct constituting a violation of section 496(a). As to Switzer’s direct
claim under section 496 in his cross-complaint, the findings made by the jury on the
special verdict form included that (i) Wood and Access Medical obtained by theft
property belonging to Switzer, and concealed or withheld such property and/or aided in
concealing or withholding such property from Switzer; (ii) Wood and Access Medical
knew the property was obtained by theft at the time they received, withheld, concealed,

                                             12.
or aided in concealing or withholding the property from Switzer; and (iii) Wood’s and
Access Medical’s violation of section 496(a) caused Switzer to suffer actual damage, loss
or harm. The identical factual elements were found by the jury with respect to Switzer’s
derivative claim under section 496 on behalf of Flournoy. These explicit findings of fact
by the jury, which have not been challenged on appeal, clearly establish violation(s) of
section 496(a).
       That being the case, under the plain and literal terms of section 496(c), Switzer
was entitled to an award of three times his actual damages that were found by the jury on
both the direct and derivative section 496 causes of action.
       Notwithstanding the clarity of the statute’s remedial provisions and their direct
application here in light of the jury’s findings, the position of Wood and Access Medical
in the present appeal mirrors that of the trial court—namely, that section 496(c) should
not be applied in a literal manner because the Legislature could not have intended to
extend the statutory treble damage remedy into the context of an ordinary business
dispute where traditional remedies for breach of contract, fraud and conversion were
available. Rather, it is argued that despite the clear and unambiguous wording of the
statutory provision, a narrower construction should be adopted to avoid absurdity, such as
a construction that limits treble damages to theft crimes involving common carriers’
cargo. Because this line of argument involves statutory interpretation, we respond by
first articulating the principles applicable to that task.
       We recently summarized some of the fundamental rules of statutory construction
in the case of California State University, Fresno Assn., Inc. v. County of Fresno (2017)
9 Cal.App.5th 250, 266, as follows: “ ‘In ascertaining the meaning of a statute, we look
to the intent of the Legislature as expressed by the actual words of the statute’ [citation],
‘giving them a plain and commonsense meaning’ [citation]. ‘We examine the language
first, as it is the language of the statute itself that has “successfully braved the legislative
gauntlet.” [Citation.]’ [¶] ‘If there is no ambiguity in the language, we presume the

                                               13.
Legislature meant what it said and the plain meaning of the statute governs.’ [Citation.]
‘When statutory language is clear and unambiguous there is no need for construction, and
we will not indulge in it.’ [Citations.] ‘We will not speculate that the Legislature meant
something other than what it said. Nor will we rewrite a statute to posit an unexpressed
intent.’ [Citations.]”
         Under the plain meaning rule, when the language of a statute is clear, we need go
no further. (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.) In that case, “no
court need, or should, go beyond that pure expression of legislative intent. [Citation.]”
(Green v. State of California (2007) 42 Cal.4th 254, 260.) Again, “[i]f the words
themselves are not ambiguous, we presume the Legislature meant what it said, and the
statute’s plain meaning governs.” (Wells v. One2One Learning Foundation (2006) 39
Cal.4th 1164, 1190.) “When statutory language is unambiguous, we must follow its plain
meaning ‘ “ ‘whatever may be thought of the wisdom, expediency, or policy of the act,
even if it appears probable that a different object was in the mind of the legislature.’ ” ’
[Citations.]” (In re D.B. (2014) 58 Cal.4th 941, 948.) As the Supreme Court has
emphasized, the judiciary’s role in determining the meaning of a statute “ ‘ “is simply to
ascertain and declare what is in terms or in substance contained therein, not to insert what
has been omitted or omit what has been inserted ….” [Citation.] We may not, under the
guise of construction, rewrite the law or give the words an effect different from the plain
and direct import of the terms used.’ [Citation.]” (People v. Leal (2004) 33 Cal.4th 999,
1008.)
         An exception exists to the plain meaning rule. A court is not required to follow
the plain meaning of a statute when to do so would frustrate the manifest purpose of the
legislation as a whole or otherwise lead to absurd results. (California School Employees
Assn. v. Governing Board (1994) 8 Cal.4th 333, 340; see also, DaFonte v. Up-Right, Inc.
(1992) 2 Cal.4th 593, 601 [stating rule that plain meaning may be disregarded only when
that meaning is repugnant to the general purview of the act or for some other compelling

                                             14.
reason].) However, the absurdity exception requires much more than showing that
troubling consequences may potentially result if the statute’s plain meaning were
followed or that a different approach would have been wiser or better. (In re D.B., supra,
58 Cal.4th at p. 948; L.G. v. M.B. (2018) 25 Cal.App.5th 211, 227.) Rather, “[t]o justify
departing from a literal reading of a clearly worded statute, the results produced must be
so unreasonable the Legislature could not have intended them.” (In re D.B., supra, 58
Cal.4th at p. 948.) Moreover, our courts have wisely cautioned that the absurdity
exception to the plain meaning rule “should be used most sparingly by the judiciary and
only in extreme cases else we violate the separation of powers principle of government.
[Citation.] We do not sit as a ‘super-legislature.’ [Citation.]” (Unzueta v. Ocean View
School Dist. (1992) 6 Cal.App.4th 1689, 1698.)
       In the present case, we do not find the plain meaning of section 496(c) to be
absurd at all, much less so absurd in its results that we would be permitted to disregard its
literal wording. Section 496(c) clearly and simply requires, as a prerequisite for treble
damages, that a “violation” of the criminal offense described in the statute has been
shown and that such violation has caused actual damage. The wording of the statute
makes no exception for cases involving preexisting business relationships, nor does it
limit applicability to violations involving common carriers or truck cargo, and we are not
at liberty to insert such omitted terms into the statute. Again, our function is not to judge
the wisdom of the statute, and we are not empowered to insert what a legislative body has
omitted from its enactments. (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d
1082, 1099.)
       Based on the plain wording of section 496(c), the Legislature apparently believed
that any violation of section 496(a) (or of subdivision (b)), if proven, would warrant the
availability of treble damages. The creation of an enhanced civil remedy for any person
injured by the theft-related criminal offenses defined in the statute is certainly not absurd
or unreasonable. Considering the nature of the offense described by the statute and the

                                             15.
apparent goal of deterring such theft-related conduct, the provision as literally written of
an enhanced civil remedy to “any person” injured by that particular offense constituted a
reasonable legislative policy decision. The fact that the treble damage remedy may come
into play where (as here) the parties were in a preexisting business relationship in which
the remedies at law have traditionally been limited (e.g., for fraud, conversion or breach
of contract)—while arguably a valid policy argument—manifestly falls short of
establishing the absurdity exception. In the final analysis, we are unable to conclude that
the results produced by a literal reading of the statute would be “so unreasonable the
Legislature could not have intended them.” (In re D.B., supra, 58 Cal.4th at p. 948
[potentially “troubling” consequences not enough]; Bell v. Feibush, supra, 212
Cal.App.4th at p. 1049 [policy concerns about potential consequences insufficient to
overcome statute’s plain wording].) In other words, the potential results of following the
unambiguous literal wording of section 496(c) are not so absurd or unreasonable that we
would be justified to override its plain meaning.
       As was appropriately stated by the Court of Appeal in Bell v. Feibush, supra, 212
Cal.App.4th at page 1049: “We are not unmindful of [the defendant’s] policy concerns
about the potential consequences of our interpretation of section 496(c). But it is the task
of the Legislature to address those policy concerns.” (Italics added.) We agree with that
caveat and will also adhere to the Supreme Court’s fundamental admonition that “[w]hen
statutory language is unambiguous, we must follow its plain meaning ‘ “ ‘whatever may
be thought of the wisdom, expediency, or policy of the act ….’ ” ’ ” (In re D.B., supra,
58 Cal.4th at p. 948.) Of course, as always “[t]he Legislature … remains free to amend
[the statute] if the language it has enacted is now understood to create unintended
consequences.” (Ibid.)
       Next, respondents would have us resort to legislative history as a basis for
supporting its argument the Legislature intended section 496(c) to have a much narrower
reach than its plain language would indicate. When statutory language is clear and

                                             16.
unambiguous, as here, resort to the legislative history is unwarranted. (California State
University, Fresno Assn., Inc. v. County of Fresno, supra, 9 Cal.App.5th at p. 268.)
Nevertheless, even if we were to consider the legislative history, our conclusion would
remain unchanged. As discussed below, the legislative history here fails to establish
respondents’ posited narrow interpretation.
       Section 496 was amended in 1972 by Senate Bill No. 1068, which added the civil
remedy provision currently set forth in subdivision (c). (Citizens of Humanity, LLC v.
Costco Wholesale Corp. (2009) 171 Cal.App.4th 1, 17–18.) When Senate Bill No. 1068
was first introduced, the proposed bill would authorize “[a]ny person who has been
injured by a violation of this section” to bring an action for civil remedies including three
times the amount of actual damages. (Sen. Bill No. 1068 (1972 Reg. Sess.) as introduced
Mar. 15, 1972, italics added.) Later, Senate Bill No. 1068 was amended to limit the civil
remedy to “for-hire carriers” injured by a violation of section 496. (Sen. Amend. to Sen.
Bill No. 1068 (1972 Reg. Sess.) May 30, 1972.) The specified remedy to “for-hire
carriers” was not itself surprising, since it appears from a committee report that the bill
was supported by the California Trucking Association and one of the goals of the bill was
the elimination of markets for stolen property or cargo. (Citizens of Humanity, LLC v.
Costco Wholesale Corp., supra, 171 Cal.App.4th at p. 18.) However, this narrower
version of the remedial section in the bill (i.e., civil remedy only to for-hire carriers) was
short-lived. One month later, a subsequent amendment restored the earlier version of the
bill by expanding the civil remedy of treble damages to “any person” who had been
injured by a violation. (Ibid.) The expansive “any person” wording is what was
ultimately passed by the Legislature and became law. The court in Bell v. Feibush,
supra, 212 Cal.App.4th at p. 1047 made the following observation relevant to issues
before it: “This history shows the Legislature believed the deterrent effect of criminal
sanctions was not enough to reduce thefts. The means to reduce thefts, the Legislature
concluded, was to dry up the market for stolen goods by permitting treble damage

                                              17.
recovery by ‘any person’ injured by the knowing purchase, receipt, concealment, or
withholding of property stolen or obtained by theft.”
       Finally, while deterrence of theft was one of the goals of Senate Bill No. 1068,
another purpose for the proposed legislation was expressly stated in the analysis provided
by the Senate Committee on the Judiciary, under the heading “Purpose,” which expressed
that the bill’s basic purpose was to “[e]stablish a civil remedy for persons who have been
injured by another’s purchase, concealment, sale, or withholding of property where such
person knows the property has been stolen.” (Sen. Com. on Judiciary, Analysis of Sen.
Bill No. 1068 (1972 Reg. Sess.) as amended June 26, 1972.)
       As the above outline of the legislative history makes clear, although Senate Bill
No. 1068 may have been briefly amended during the legislative committee process to
have a narrower remedial focus (i.e., for-hire carriers), the Legislature ultimately restored
the wording giving a treble damage remedy to “any person” who was injured by a
violation of section 496. Therefore, because the Legislature clearly approved and
endorsed the broader scope of the civil remedy as provided in current section 496(c), we
conclude the legislative history does not support respondents’ contention that section
496(c) was intended to have a narrow focus that would apply only to common carriers or
to situations involving theft in the cargo industry.
       In conclusion, because the language of section 496(c) is clear and unambiguous,
we are required to apply its plain meaning in this case. Under that plain meaning,
because violations of section 496(a) were determined by the jury to have occurred,
Switzer was entitled to an award of three times his actual damages that were found by the
jury on both the direct and derivative section 496 causes of action against Wood and
Access Medical.3

3       We are of the opinion that a treble damage award is mandatory where, as here, the
violation of section 496(a) has been shown. Nothing in the wording of section 496(c)
reflects that where a violation has been established, the specific relief provided for in the

                                             18.
III. Attorney Fees
       Switzer argues the trial court also erred in its failure to award attorney fees
pursuant to section 496(c). We agree. Section 496(c) not only provides for recovery of
treble damages, but also “costs of suit, and reasonable attorney’s fees.” Because, as we
have explained above, the section 496(c) remedies were fully applicable in this case,
Switzer was entitled to a recovery of his attorney fees and costs relating to the section
496 causes of action in his cross-complaint.
       As noted previously above, the attorney fees sought by Switzer’s motion for
attorney fees in the trial court related to three severable parts of the overall litigation:
(1) attorney fees on “the Flournoy cross-complaint” pursuant to a provision in the parties’
operating agreement relating to Flournoy; (2) attorney fees on “the Switzer’s records
inspection complaint” as authorized by former Corporations Code section 17106,
subdivision (g); and (3) attorney fees on “the Switzer Cross-Complaint” as authorized by

statute of treble damages would be optional or discretionary. A similarly worded civil
remedy provided under the Penal Code is set forth in section 637.2, which states that
“[a]ny person who has been injured by a violation of this chapter [relating to unlawful
recording of private conversations] may bring an action against the person who
committed the violation” for “[f]ive thousand dollars ($5,000) per violation” or “three
times the amount of actual damages,” whichever is greater. (§ 637.2, subd. (a).) Under
case law, the injured party’s right to recover the specified damage amount or civil penalty
stated in section 637.2 has been treated as mandatory, not discretionary, once the
underlying violation has been established. (See Friddle v. Epstein (1993) 16 Cal.App.4th
1649, 1660–1661 [where former per-violation amount of $3,000 was sought, and an
actionable violation of section 632 was established, the “right” to recover that statutory
amount accrued; held, judgment must be modified to award each defendant $3,000 under
their cross-complaints].) We think the same interpretation would apply to section 496(c).
(See also Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1601 [unlike punitive damage
awards, the amount of statutory damages is set by the Legislature]; Uneedus v. California
Shoppers, Inc., supra, 86 Cal.App.3d 932, 944 [statutory language “entitled to recover”
treble damages “signifies that a plaintiff ‘qualifies’ for the right to mandatory treble
damages once he proves actual damages”]; Los Angeles County Metropolitan
Transportation Authority v. Superior Court (2004) 123 Cal.App.4th 261, 276 [noting
most statutory civil penalties are mandatory once liability is established, unlike punitive
damages].)


                                               19.
section 496(c). The trial court acknowledged all three aspects of the attorney fee motion,
but it only granted attorney fees relating to the Flournoy cross-complaint and Switzer’s
records inspection complaint. Therefore, implicitly—yet clearly—the trial court denied
the attorney fee motion under section 496(c) relating to Switzer’s cross-complaint.
       The trial court’s refusal to award attorney fees to Switzer under section 496(c)
constituted reversible error, and that portion of the trial court’s attorney fee order is
accordingly reversed. The matter is remanded to the trial court for further proceedings to
determine the appropriate amount of attorney fees and costs to award to Switzer under
section 496(c) relating to his section 496 causes of action in his cross-complaint. The
trial court shall then enter a new order granting Switzer’s motion for attorney fees under
section 496(c) in the amount so determined.
IV. Prejudgment Interest
       The jury’s special verdict found that Switzer was entitled to a recovery of
prejudgment interest on both the direct and derivative claims presented to the jury, which
claims related to property losses and damages incurred by Switzer in 2011. On the
special verdict form, the jury could and did insert dollar amounts constituting
prejudgment interest with respect to Switzer’s damages. The judgment entered by the
trial court in January 2018 included the specific amounts awarded by the jury for
prejudgment interest, but those amounts were far below the legal rate of interest
permitted by law of 7 percent per year. By Switzer’s calculations, which appear to be
accurate, the amounts awarded reflect a prejudgment interest rate of approximately 1 to 2
percent, rather than 7 percent, per annum.
       In the present appeal, Switzer contends that the amount and/or calculation of
prejudgment interest awarded by the jury constituted legal error on the face of the record
and should be corrected on appeal. Switzer points out that where a jury determines a
plaintiff is entitled to an award of prejudgment interest as an element of damages, the
function of the award is to compensate the plaintiff for the loss of use of his or her

                                              20.
property over time, measured from the date of loss until the time judgment is entered.
(See Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th
26, 69; Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 815 [“Prejudgment
interest is awarded to compensate a party for the loss of the use of his or her property”].)
Moreover, as observed by Switzer, the interest rate allowed by law where the jury decides
to award prejudgment interest under Civil Code section 3288 is 7 percent per year, which
is the same rate that is applicable under Civil Code section 3287. (See, e.g., Uzyel v.
Kadisha (2010) 188 Cal.App.4th 866, 921; Michelson v. Hamada (1994) 29 Cal.App.4th
1566 [interest rate under Civil Code section 3288 for fraud claim was 7 percent]; Pacific-
Southern Mortgage Trust Co. v. Insurance. Co. of North America, supra, 166 Cal.App.3d
at p. 716 [in absence of legislative act to the contrary, the rate of prejudgment interest is 7
percent].)
       However, Civil Code section 3288 states: “In an action for the breach of an
obligation not arising from contract, and in every case of oppression, fraud, or malice,
interest may be given, in the discretion of the jury.” (Italics added.) This language has
been construed to mean that the trier of fact, whether jury or the court, appropriately
decides the issue of prejudgment interest under this section. (Michelson v. Hamada,
supra, 29 Cal.App.4th at pp. 1586–1587.) “It is always the trier of fact that determines
the issue of damages and this is true with regard to prejudgment interest pursuant to
section 3288.” (Id. at p. 1586.)
       The gist of Switzer’s argument is that anytime a jury exercises its discretion to
award prejudgment interest under Civil Code section 3288, it is required in every instance
to award the maximum interest allowable by law—namely, 7 percent per year. However,
while it is true that 7 percent is the maximum rate for calculating prejudgment interest
under Civil Code section 3288, Switzer has not presented any case authority for the
proposition that the jury must, in every case, always award the full amount of the
maximum interest rate available by law. Therefore, Switzer has failed to meet his burden

                                             21.
of clearly and affirmatively demonstrating legal error. (Denham v. Superior Court (1970)
2 Cal.3d 557, 564 [because a trial court’s order is presumed correct, and all intendments
are indulged to support it, error must be affirmatively shown]; Yield Dynamics, Inc. v.
TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557 [an appellant’s burden is to
affirmatively show error based on adequate legal argument supported by the record];
Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482 [the
appellant’s failure to provide adequate legal analysis of a complex legal issue results in
its forfeiture].)
       More than that, Switzer has failed to provide an adequate record of the trial
evidence and testimony, or of how the jury was instructed on this issue, to shed light on
whether there could have been any underlying factual or legal rationale for awarding
prejudgment interest in the amount the jury did here. (Gee v. American Realty &
Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [where record inadequate for
meaningful review of an issue, it is forfeited on appeal].) In view of these deficiencies,
we hold there is a further impediment to Switzer’s argument—namely, it does not appear
that this issue was ever raised in the trial court. There was extensive briefing in the trial
court regarding the proposed judgment, but we have found no evidence that Switzer ever
raised or challenged the award of prejudgment interest in the trial court where it could
have been readily corrected, if error was made. It has been held with respect to a party’s
claim that the jury or trial court erred in its award of prejudgment interest, that if the
award was not objected to in the trial court, the issue is forfeited on appeal. (Jones v.
Wagner (2001) 90 Cal.App.4th 466, 481–482 [so holding].) Under the circumstances, we
conclude that is the case here.
       Based on the foregoing, we find that Switzer has failed to meet his burden of
demonstrating that clear and reversible error occurred with respect to the calculation of
prejudgment interest by the jury.



                                              22.
V. Motion to Amend Judgment to Include Additional Judgment Debtor
       Lastly, Switzer contends the trial court abused its discretion by denying his motion
to add an additional judgment debtor—namely, Alpine Medical Management Group,
LLC, aka Alpine Surgical Group (Alpine)—to the judgment. On balance, we conclude
that Switzer has failed to demonstrate an abuse of discretion.
       Under Code of Civil Procedure section 187, a trial court has discretion to modify a
judgment to add additional judgment debtors. (Wolf Metals Inc. v. Rand Pacific Sales
Inc., supra, 4 Cal.App.5th at p. 703.) The grounds for doing so include situations where
the new party is an alter ego of an existing judgment debtor, or where the new party is a
successor entity that is a mere continuation of an existing judgment debtor. (Id. at pp.
703–705.) Here, Switzer contends Alpine is liable as a successor entity of Access
Medical.
       According to the successor entity theory, the general rule is that “when a
corporation sells or transfers all of its assets to another corporation constituting its
‘ “mere continuation,” ’ the latter is also liable for the former’s debts and liabilities.”
(Wolf Metals Inc. v. Rand Pacific Sales Inc., supra, 4 Cal.App.5th at pp. 704–705;
accord, McClellan v. Northridge Park Townhome Owners Assn. (2001) 89 Cal.App.4th
746, 753.) “California decisions holding that a corporation acquiring the assets of
another corporation is the latter’s mere continuation and therefore liable for its debts have
imposed such liability only upon a showing of one or both of the following factual
elements: (1) no adequate consideration was given for the predecessor corporation’s
assets and made available for meeting the claims of its unsecured creditors; (2) one or
more persons were officers, directors, or stockholders of both corporations.” (Ray v.
Alad Corp. (1977) 19 Cal.3d 22, 29; accord, Wolf Metals Inc. v. Rand Pacific Sales Inc.,
supra, 4 Cal.App.5th at p. 705; McClellan v. Northridge Park Townhome Owners Assn.,
supra, 89 Cal.App.4th at p. 753.) The significant principle is that “ ‘[i]f a corporation
organizes another corporation with practically the same shareholders and directors,

                                              23.
transfers all the assets but does not pay all the first corporation’s debts, and continues to
carry on the same business, the separate entities may be disregarded and the new
corporation held liable for the obligations of the old.’ ” (McClellan v. Northridge Park
Townhome Owners Assn, supra, 89 Cal.App.4th at p. 753.)
       The equitable basis for concluding that such a successor entity is liable is that
“ ‘corporations cannot escape liability by a mere change of name or a shift of assets when
and where it is shown that the new corporation is, in reality, but a continuation of the old.
Especially is this well settled when actual fraud or the rights of creditors are involved,
under which circumstances the courts uniformly hold the new corporation liable for the
debts of the former corporation.’ [Citation.]” (Cleveland v. Johnson (2012) 209
Cal.App.4th 1315, 1327.) As with other equitable doctrines, it is appropriate to examine
successor liability issues based on the unique facts and circumstances of each case. (Id.
at pp. 1330, 1334.) In Cleveland, the appellate court upheld a jury’s determination of
successor liability where the original business entity transferred only part of its total
operations to the successor entity and the original business entity continued to do some
business by carrying out the retained operations while the successor entity took over the
transferred operations. (Id. at pp. 1327–1334.)
       Here, Switzer filed a motion in the trial court to modify the judgment to add
Alpine as an additional judgment debtor on the ground that Alpine is a successor entity of
Access Medical in regard to certain spinal implant business that had been conducted by
Access Medical at an Atlanta hospital, and possibly at hospitals in Las Vegas as well.
The trial court denied the motion, noting the evidence was incomplete or unpersuasive,
and explained its ruling as follows: “The moving papers do not show that Access
Medical transferred all of its assets to Alpine, or that Alpine did not pay adequate
compensation for the assets of Access Medical that it did acquire or for the line of
business it took over. The court would expect to see in a motion such as this more
detailed evidence about what operations and business Access Medical carries on, if any.

                                              24.
All that has been shown is that Alpine has taken over one line of business that Access
Medical was engaged in. Without more, the court cannot conclude that Alpine is the
successor of Access Medical which apparently is still an active entity.”
       The evidence in support of the motion reflected, among other things, that Alpine
was formed in 2014 as a new company to permit the usage of other spinal implant
products from suppliers besides the exclusive supplier contractually required to be used
by Access Medical. Once Alpine was formed, the spinal implant business at the Atlanta
hospital was carried out by Alpine instead of Access Medical. In at least one instance, it
was communicated to a vendor that the change from Access Medical to Alpine was the
result of an acquisition and it was requested that the vendor’s records be revised to reflect
the name change. Both companies were owned or managed by Wood, and both used the
same mailing address.
       At the same time, the trial court is correct that there was no clear evidence
regarding the nature of any purchase by, or the extent of any transfer of assets to, Alpine,
or of whether Alpine was inadequately capitalized, or of whether Access Medical has
continued to exist and operate. (See, e.g., Beatrice Co. v. State Bd. of Equalization
(1993) 6 Cal.4th 767, 778 [noting that successor liability is generally not imposed when
recourse to the debtor corporation is still available and the two corporations have separate
identities].) Further, we note that nothing in the record indicated that Wood or Access
Medical potentially lacked adequate resources to satisfy the judgment. As the trial court
found, “[a]ll that has been shown is that Alpine has taken over one line of business that
Access Medical was engaged in.” (Italics added.)
       We believe the decision made by the trial court to deny the motion was within its
range of judicial discretion. Switzer points out that in Cleveland v. Johnson, supra, 209
Cal.App.4th at pages 1327–1334, the appellate court was willing to affirm the trier of
fact’s finding of successor liability where, as here, the original business entity transferred
only part of its total operations to the successor entity. However, it is one thing to

                                             25.
conclude that a trier of fact could permissibly find successor liability under the unique
circumstances and equities of a particular case, as the court did in Cleveland, and quite
another to say that successor liability must be found as a matter of law. For the reasons
articulated by the trial court in its order, we are unable to conclude on the state of the
record here that the trial court was required to find Alpine was a successor entity.
Accordingly, Switzer has failed to demonstrate the trial court abused its discretion when
it denied his motion to add Alpine as a judgment debtor.
                                       DISPOSITION
       The judgment of the trial court is reversed, in part, due to the trial court’s failure to
award treble damages under section 496(c), and the matter is remanded to the trial court
to enter a modified judgment that includes treble damages under section 496 on Switzer’s
direct and derivative section 496 causes of action. Additionally, the trial court’s denial of
Switzer’s motion for attorney fees premised on section 496(c) is reversed, and that matter
is remanded to the trial court for further proceedings to determine the appropriate amount
of attorney fees to be awarded pursuant to section 496(c), after which a new order shall
be entered awarding the amount of section 496(c) attorney fees so determined. In all
other respects, the judgment and orders of the trial court are affirmed.


                                                                   _____________________
                                                                                 LEVY, J.
WE CONCUR:


_____________________
HILL, P.J.


_____________________
PEÑA, J.




                                              26.
Filed 5/10/19




                        CERTIFIED FOR PARTIAL PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                 FIFTH APPELLATE DISTRICT


TED SWITZER,
                                                                    F077206/F077493
        Cross-complainant and Appellant,
                                                             (Super. Ct. No. 11CECG04395)
                  v.
                                                            ORDER CERTIFYING OPINION
ROBERT CLARK “SONNY” WOOD II et al.,                        FOR PARTIAL PUBLICATION
                                                             AND MODIFYING OPINION
        Cross-defendants and Respondents.
                                                            [NO CHANGE IN JUDGMENT]

THE COURT:
        The opinion in the above-entitled matter filed on April 15, 2019, was not certified
for publication in the Official Reports. After the court’s review of requests under
California Rules of Court, rule 8.1120, and good cause established under rule 8.1105, it is
hereby ordered that the opinion should be published, with the exception of parts III, IV
and V of the Discussion, in the Official Reports.
        It is further ordered that the opinion filed on April 15, 2019, be modified as
follows:
        1.        On page 3, the first full paragraph is deleted in its entirety and is replaced
with the following paragraph:

                In the published portion of this opinion, we conclude that Switzer is entitled
        to treble damages under section 496(c). That statute is clear and unambiguous,
        and its remedial provisions should be applied where, as here, a clear violation of

                                                 27.
      section 496(a) has been found. Accordingly, the judgment is reversed, in part, and
      the matter is remanded to the trial court to enter a modified judgment that includes
      treble damages on the section 496 causes of action. Furthermore, in the
      unpublished portion of this opinion, we reverse the trial court’s denial of Switzer’s
      motion for attorney fees premised on section 496(c), and the matter is remanded to
      the trial court for further proceedings to determine the appropriate amount of
      attorney fees to be awarded pursuant to section 496(c), after which a new order
      shall be entered awarding the amount of section 496(c) attorney fees so
      determined. In all other respects, the judgment and orders of the trial court are
      affirmed.
      2.     On pages 18 and 19, footnote 3 is deleted in its entirety.
      Except for the modifications set forth, the opinion previously filed remains
unchanged.
      These modifications do not effect a change in the judgment.

                                                                      _________________
                                                                               LEVY, J.
WE CONCUR:


_________________
HILL, P.J.


_________________
PEÑA, J.




                                           28.
