Guthrie v. American Protection Industries

Opinion

COMPTON, Acting P. J.

Plaintiff Barbara J. Guthrie, doing business as Wehrman’s Jewelry, appeals from the judgment of the trial court, sitting without a jury, awarding her $250 in damages for losses by theft which occurred at a time when a burglar alarm system, installed and operated by defendant American Protection Industries (API), failed to function as represented. We affirm.

The essential facts are not in dispute and may be briefly summarized as follows. On March 8, 1973, Harvey Wehrman, plaintiff’s predecessor, entered into an agreement with API to install and maintain a burglary alarm system at his jewelry store in Long Beach, California. Some five years later, Mr. Wehrman died and plaintiff purchased his interest in the business from his estate. Both before and after the change of ownership, the contract with API remained in effect.

On October 24, 1979, plaintiff noticed an inappropriate clicking sound in the alarm system and notified API of a possible malfunction. The following day, service representatives from API visited the store and worked on the system for approximately 30 minutes. They advised plaintiff that the alarm had been repaired and that the system was now in good working order.

On Saturday, November 3, 1979, plaintiff closed the store at 4:30 p.m., and, as usual, activated the alarm. The following Monday, November 5, 1979, plaintiff entered the premises and discovered that the store had been burglarized by persons unknown. The burglars apparently had broken

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through a wall from an adjacent store in order to enter the premises and had destroyed a number of display cases while removing various pieces of jewelry. Either of these activities should have caused the alarm system to be activated, but did not. A subsequent engineering analysis found the system to be defective.

Plaintiif brought suit against API, claiming a loss of $103,461 in stolen merchandise. In substance, the complaint alleged that API had negligently performed under its contract and had breached its expressed and implied warranties that the alarm system installed would detect a burglary.

At trial, API stipulated to breach of the contract and negligence in failing to keep the system operable. After taking testimony on the issue of damages, the trial court found that paragraph 14 of the agreement executed between the parties was a valid liquidated damage provision under the holding of