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adduced at trial, a written settlement agreement, and the
intent of the payer." Id. at 1306.
In this case, unlike Threlkeld v. Commissioner, supra,
the award to petitioner in the superior court action is set
forth in the jury's special verdict. The award was based
entirely on petitioner's claim that Thrifty breached an
implied covenant of good faith and fair dealing. Thus, in
this case, in determining the basis for the damages awarded
to petitioner in the superior court action, the jury's
special verdict takes precedence over any of the other
factors mentioned by the Court in Threlkeld v.
Commissioner, supra.
The jury award in the instant case was based upon a
single identifiable cause of action, breach of an implied
covenant of good faith and fair dealing. Under California
law, that cause of action is not a tort. Mundy v.
Household Fin. Corp., 885 F.2d 542, 544 (9th Cir. 1989)
("the California Supreme Court has spoken decisively,
holding in Foley [v. Interactive Data Corp., infra] that an
allegation of breach of the implied covenant is a purely
contractual claim"); Foley v. Interactive Data Corp., 765
P.2d 373 (Cal. 1988); see Cade v. Commissioner, T.C. Memo.
1999-394. Accordingly, in the instant case, no part of the
recovery in the superior court action can be excluded from
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