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,

Cross-complainant and Appellant,

v.

ROBERT CLARK “SONNY” WOOD II et al.,

Cross-defendants and Respondents.

F077206/F077493

(Super. Ct. No. 11CECG04395)

OPINION

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.

-ooOooAppellant Ted Switzer (Switzer or appellant) prevailed at trial against crossdefendants 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 
2.

and treble damages under Penal Code1section 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. 
3.

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 crosscomplaint, 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. 
4.

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 crosscomplaint 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 
5.

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 nonconversion 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. 
6.

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). 
7.

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.
8.

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 crosscomplaint” 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. 
9.

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 
10.

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 
11.

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 
12.

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, 
13.

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 
14.

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 
15.

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 
16.

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 
17.

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 
18.

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 
19.

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].) 
20.

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 
21.

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]; PacificSouthern 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 
22.

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. 
23.

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, 
24.

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. 
25.

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 
26.

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.
27.

Filed 5/10/19

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

TED SWITZER,

Cross-complainant and Appellant,

v.

ROBERT CLARK “SONNY” WOOD II et al.,

Cross-defendants and Respondents.

F077206/F077493

(Super. Ct. No. 11CECG04395)

ORDER CERTIFYING OPINION 

FOR PARTIAL PUBLICATION 

AND MODIFYING OPINION

[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 
28.

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.