Norager

Defendant Edwin Nakamura appeals from a judgment ordering him to pay plaintiff Harry Norager $105,000 (plus interest, costs and attorney fees), and from an order denying his motion to vacate a judgment and to enter a new judgment under Code of Civil Procedure section 663.

Harry Norager filed an action for breach of contract against Norager, Inc. (the Corporation) and Edwin Nakamura, based on $30,000 remaining due on a $135,000 promissory note. The Corporation was sued directly on the promissory note, while Nakamura was sued as a guarantor of the note obligation. The Corporation and Nakamura cross-complained.

On the last day of a four-day court trial, Norager successfully moved to amend his complaint to conform to proof, alleging Nakamura’s bad faith denial of the existence of a contract. In support of the motion to amend, Norager’s attorney relied heavily on the Supreme Court’s decision in Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752 [ 206 Cal.Rptr. 354 , 686 P.2d 1158 ], in which that tort was first recognized.

Thereafter, the court found in favor of Norager and against the Corporation in the amount of $30,000 (plus prejudgment…