Judge: John J. Kralik, Case: 23BBCV00653, Date: 2023-09-08 Tentative Ruling

Case Number: 23BBCV00653    Hearing Date: September 8, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Marat Grigoryan (“Plaintiff”) alleges that on August 7, 2022 at or along 10605 Burbank Blvd., North Hollywood, CA, Plaintiff was operating his vehicle when Defendant Villegas Figueroa made an unsafe left turn and collided with Plaintiff’s vehicle.  Plaintiff alleges that Defendant Rafael Figueroa was the registered owner of the vehicle driven by Villegas Figueroa.

            The complaint, filed March 22, 2023, alleges causes of action for: (1) negligence; (2) negligence per se; and (3) negligent entrustment.

B.     Motion on Calendar

On June 28, 2023, Defendants Gabriel Figueroa Villegas and Rafael Figueroa filed a motion to strike portions of the complaint.

On August 3, 2023, Plaintiff filed an opposition brief.    

On August 29, 2023, Defendants filed a reply brief.

DISCUSSION

Defendants move to strike subsection c) from the Prayer for Relief, which seeks “Recovery of pre-judgment interest at the legal rate.”  (Compl. at p. 7.)  Defendants argue that the complaint fails to allege any basis for the recovery of pre-judgment interest.

“If allowable, interest is an element of damages provided by statute.  (Lawrence Tractor Co. v. Carlisle Ins. Co. (1988) 202 Cal.App.3d 949, 955.”  “A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day….”  (Civ. Code, § 3287(a).)  “[T]his action lies in tort and it is the generally accepted view that interest cannot be awarded on damages for personal injury.”  (Curtis v. State of California ex rel. Dept. of Transportation (1982) 128 Cal.App.3d 668, 686.)  “[D]amages for the intangible, noneconomic aspects of mental and emotional injury are not readily subject to precise calculation and the amount of such damages is necessarily left to the subjective discretion of the trier of fact.”  (Id.) 

In opposition, Plaintiff argues that he is not only claiming general and special damages, but lost wages, which are damages that are capable of being made certain by calculation pursuant to Civil Code, § 3287.  In the prayer for relief in the complaint, Plaintiff seeks special damages including medical expenses and loss of both past and future earnings.  (Compl. at p.7, Prayer for Relief at a).) 

Technically, loss of earnings could be subject to calculation.  (See e.g., Gourley v. State Farm Mut. Auto. Ins. Co. (1991) 53 Cal.3d 121, 136-137 [“The plaintiff also ought to be able to recover prejudgment interest under [section 3287] subdivision (a) for loss of earnings if the damages can be determined by calculation or section 3288 for loss of earnings if the damages cannot be determined by calculation. Although other damages such as pain or suffering may be uncertain or speculative precluding prejudgment interest in the absence of a statutory settlement offer, this fact should not preclude recovery of prejudgment interest as to the damages to the car or loss of earnings.”] [J. Broussard, dissenting].)   

Plaintiff also argues that he is entitled to allege the recovery of prejudgment interest in the complaint based on Civil Code, § 3291(a).  This subsection states: “In any action brought to recover damages for personal injury sustained by any person resulting from or occasioned by the tort of any other person … whether by negligence or by willful intent of the other person …  and whether the injury was fatal or otherwise, it is lawful for the plaintiff in the complaint to claim interest on the damages alleged as provided in this section.”  (Civ. Code, § 3291(a).)  Section 3291 refers to the recovery of prejudgment interest when a plaintiff makes a CCP § 998 offer, which the defendant fails to accept, and the plaintiff obtains a more favorable judgment.  (Civ. Code, § 3291(b).)  At this time, it does not appear that a section 998 offer has been made by Plaintiff, such that this section does not yet apply.  Further, “[i]t has long been settled that, in a contested action, prejudgment interest may be awarded even though the complaint contains no prayer for interest.”  (Newby v. Vroman (1992) 11 Cal.App.4th 283, 286.) 

 The motion to strike is denied. Although the complaint does not establish entitlement to interest, there is a reasonable possibility that some such interest could be recovered as to some amount on some legal theory. It is thus premature to rule that no interest can be recovered in a way that would preclude seeking it later. As indicated in Newby v. Vroman, supra, the consideration of this issue can occur later. Although there are jury instructions that would permit the jury to award interest in particular cases, in this Court’s experience these instructions are difficult to understand and require computations that can easily go wrong.  Moreover, the consideration of interest by the jury also complicates what is a somewhat complicated verdict form. Therefore, it is the usual practice in this Court to encourage the parties to submit the question of interest to the Court after verdict. All facts determinative of whether interest might be recoverable will then be determined and all legal arguments in favor or against interest may be raised with the Court. 

CONCLUSION AND ORDER

            Defendants Gabriel Figueroa Villegas and Rafael Figueroa’s motion to strike is denied.

            Defendants shall provide notice of this order.