Metropolitan News-Enterprise


Friday, January 13, 2017


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C.A. Derides Appellant’s Contention, Tone of Brief

Former Lessee of Car Seeks Damages From Driver in Collision for Diminished Value of Vehicle: Panel Affirms Judgment in Favor of Defendant


By a METNEWS Staff Writer


The Fourth District Court of Appeal has derided a fender-bender action brought by the former lessee of an automobile for the diminished value of that vehicle, and taken his appellate lawyer to task for filing a sassy brief.

Justice Eileen Anderson of Div. Three said in an opinion, filed Wednesday, that was not certified for publication:

“This appeal asks the following question: If a leased vehicle is damaged in an accident, repaired to its original condition, and returned to the lessor with no charges assessed to the lessee as a result of the accident, is the lessee able to seek damages for the ‘diminished value’ of the vehicle? We conclude the answer is a resounding ‘no.’ The lessee neither has standing to seek such damages, nor does the lessee have any damages to seek.”

The plaintiff, Laguna Niguel insurance broker Ty Hansche, sued the driver of the car that collided with his, Daniel Jeffrey Jepson and his wife, Kristin Jepson, also of Laguna Niguel.

Orange Superior Court Judge Linda S. Marks made a pre-trial ruling that Hansche had no standing to sue for diminished value of the automobile, owned by the leasing company, BMW Financial Services (“BFS”). The remaining personal injury claim was settled, with Hansche reserving the right to appeal the scuttling of his action relating to the car.

‘Purely Speculative Harm’

Moore wrote:

“[E]ven if we were to determine that Hansche was the legal owner of the vehicle, he suffered no cognizable damages. He argues that he could have kept the vehicle after the lease terminated (by paying a significant additional amount), and if he had, he would have suffered diminished value because the vehicle could not be sold as ‘certified’ or with an implied warranty of merchantability. But he chose not to purchase the vehicle. He cannot assert damages based on what might have happened had he made different choices. He used the vehicle after it was repaired, and then returned it, and was not required to pay anything to BFS as a result of the accident. He cannot recover for purely speculative harm….Hansche never moved beyond his status as a lessee of the vehicle, and allowing a lessee to recover for the diminished value of a vehicle in which he had no ownership interest would be plainly absurd.”

The jurist expressed displeasure, in a footnote, with “the unnecessarily disrespectful nature of statements in the plaintiff’s briefs.” She quoted Reno attorney as writing:

“There is ‘reality’ which should be considered but there appears to be a decision from ‘Fantasyland’ coming from the Trial Court in Orange County. The decision makes no real sense or logical reason”

She also quoted Day’s brief as remarking:

“If one is going to cause damage to another citizen’s vehicle...make sure the vehicle which is being damaged is a ‘leased vehicle’ and/or is located in Orange County.”

Moore said:

“We expect more professionalism from counsel.”

Day’s Comment

Commenting on the decision in an email, Day said:

“I have read the opinion, and it is unreal. Actually, it would mean the statutory law regarding ownership existing for more than 170 years is gone, but it still the statute, the Supreme Court was overruled by the Court of Appeal, and importantly, while the public pays for insurance coverage, as much as 40% of the damage to vehicle have no coverage while insurers like Farmers collects premiums. That in California may be costing the public about $1 Billion per year, and best for the tortfeasors, there is no civil liability even if they commit criminal violations of law, such as taking a sledge hammer and beating the...out of your leased vehicle. 

“I notice that don’t think it is reality, even thought [sic] the Court side with the insurance industry.”

Day received a public reproval from the State Bar in 2015, pursuant to a stipulation which recited:

“By reporting to the State Bar that he was in compliance with the MCLE requirements when he was grossly negligent in not knowing that he was not in compliance with the MCLE requirements, respondent committed an act involving moral turpitude, dishonesty, or corruption in willful violation of Business and Professions Code section 6106.”

Jepson was represented on appeal by Vangi M. Johnson and Sarah A. Marsey of Haight Brown & Bonesteel and by John C. Wallace of the Law Offices of Andrew W. MaCrae.

Johnson offered this comment:

“Leading up to the Oral Argument on this Appeal, appellant filed a Motion for Sanctions against me as Respondents’ appellate counsel, as well as Respondents’ trial counsel, for pursuing what he believed to be a frivolous Appeal, even though such had been filed by appellant. The Motion for Sanctions was ignored by the Court of Appeal. In California, the Court of Appeal advises the parties as to whether it will entertain a motion of this type. Here, the choice was to ignore such.

“In reviewing the Opinion, it seems evident that the Court of Appeal was not at all enamored with the tone and tenor of appellant’s briefing. The Court confirmed, consistent with Respondents’ briefing, that because the issues in this matter were evidentiary in nature, discretion is required to be given to the trial court, and appellant failed to provide an adequate record on Appeal which would have allowed the Court of Appeal to assess the trial court’s reasoning. Even so, the Court of Appeal prudently addressed the merits of appellant’s argument, and also consistent with Respondent’s briefing, agreed that appellant had no standing; no legal interest (even a limited one) in the ownership of the vehicle at issue; there was no action for conversion; and appellant suffered no cognizable damages.”


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