Superior Court of California
County of Santa Cruz
No. CV 139974
Memorandum of Decision
RAYMOND A. RUSSELL,
Trustee of the Russell Trust dated 4/5/89
KRISTINA LEE ANDERSON, et al.,
AND RELATED CROSS-ACTION
Two things have already occurred which necessarily limit the scope of this decision in relation to the pleadings. First, in the cross-complaint relief in the alternative for rescission and damages is sought. During the trial cross-complainant elected to proceed for damages as opposed to rescission. Secondly, cross- complainant seeks damages based upon what are argued to be breaches of express warranties in the sales contract regarding various individuals who purportedly certified or authenticated the violin, e.g. Rolland Feller. However, cross-complainant presented no evidence as to what the damages for any such breach would be, and rescission is no longer a remedy. Likewise, since rescission is no longer a remedy, it makes no legal difference that Mr. Russell may not have disclosed to either Ms. Anderson or Mr. Woodall Mr. Reuning’s opinion about the authenticity of the violin unless his opinion is correct.
Given the above, it is necessary for the Court to determine as a matter of fact whether the violin is a well constructed composite or a repaired original. If the violin is as asserted by the plaintiff, the cross-complainant is not entitled to any relief.
This factual issue is largely a contest between the testimonies of Christopher Reuning and Harry Duffy. Mr. Reuning is obviously qualified, and the Court can identify no particular reason why he would not be candid. However, it was the Court’s strong impression was that his testimony was a reiteration of what he had been told by Charles Beare. Mr Beare was not a witness, and a hearsay objection was sustained as to his opinion. As an expert, Mr. Reuning can take into consideration the opinion of another expert, but the strength of Mr. Reuning’s opinion is diluted by Mr. Beare’s unavailability to be cross-examined. Mr. Duffy is also well qualified. Although it can be argued that Mr. Duffy has personal motivation to defend his earlier opinions, the Court does not find that he is the type of person who would not acknowledge his prior errors if they were pointed out to him. Mr. Duffy also has the benefit of the documentary history of the violin possessed by Mr. Russell. The Court finds that by a preponderance of the evidence that the violin is an original Guadagnini, although repaired and not of collector’s quality.
Defendant repudiated the contract by advising Mr. Russell that she was unable to perform in October, 2000. Indeed the issues about the authenticity of the violin did not arise until after the litigation commenced and the cross-complaint had been filed. The entire contract balance is accelerated. The Court is unable to identify either by contract or by statute any entitlement that plaintiff has in asserting title to or security in the violin.
Plaintiff is entitled to judgment for the entire contract balance plus costs. Cross-complainant is entitled to nothing on her cross-complaint. Cross-defendants are entitled to their costs.
Mr. Schmidt shall prepare a form of judgment and submit same to Mr. Smith pursuant to Rule 391.
DATED: Sept. 25, 2001
SAMUEL S. STEVENS,
Judge of the Superior Court