Judge Monica Bachner, Case 21STCV07158 2023-03-27 Tentative Ruling

Plaintiffs Patrick Bane’s and Sarah Bane’s motion for prejudgment interest is granted in the reduced amount of $660.03.

Plaintiffs Patrick Bane (“Patrick”) and Sarah Bane (“Sarah”) (collectively, “Plaintiffs”) move for an award of prejudgment interest of $173,675.67, pursuant to Civil Code §§3287, et seq. (Notice of Motion, pg. 2; Reply Decl. of Garcia ¶2.) Plaintiffs move for prejudgment interest from Defendants Monica Acosta (“Acosta”), DLI Properties, LLC (“DLI”), and Strategic Realty, Inc. (“Strategic Realty”) (collectively, “Defendants”) following this Court’s entry of its Final Statement of Decision on February 16, 2023. (Motion, pg. 1.)

Plaintiffs filed the instant motion on March 13, 2023. Defendant Acosta, pro per, filed an opposition on March 21, 2023.[1]^,
[2] On March 22, 2023, Plaintiffs filed their reply.

Civil Code §3287(a) provides, in pertinent part, as follows: “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.”

“Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.” (Civ. Code §3287(b).)

The test for recovery of prejudgment interest is whether the defendant actually knows the amount owed or could have computed the amount from reasonably available information. (See Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 774.) Prejudgment interest is not authorized only in those cases where the amount of damage—as distinguished from liability—depends on the judicial determination of conflicting evidence and is not ascertainable from truthful data supplied by the claimants to the debtors. (Id.) “Damages are deemed certain or capable of being made certain within the provisions of subdivision (a) of § 3287 where there is essentially no dispute between the parties concerning the basis of computation of damages if any are recoverable but where their dispute centers on the issue of liability giving rise to damage.” (Esgro Central, Inc. v. General Insurance Co. (1971) 20 Cal.App.3d 1054, 1060.)

Tort claims receive interest of 7 percent per annum. (See Cal. Const. art. XV, §1; Children’s Hospital & Medical Center, 97 Cal.App.4th at pg. 775.)

Plaintiffs are entitled to prejudgment interest under Civil Code §3287(c) as to those damages that were certain or capable of being made certain by calculation. The amounts testified to by Plaintiffs’ expert Brian Gudets does not meet this standard. The incidental items were proven with invoices and receipts from vendors: the element of certainty of these damages was met. (See, e.g., Coleman Engineering Co. v. North American Aviation (1966) 65 Cal.2d 396, 407-408.) Plaintiffs are entitled to interest on the damages from the time they incurred the costs where incidental charges are concerned.

Interest from March 13, 2023, through March 27, 2023, at $0.034 per day equals $0.48 in additional interest for a total of $177.48 [3] in interest on the Exhibit 14 damages through March 27, 2023. (In fact it totals $44.78)

Interest from March 13, 2023, through March 27, 2023, at $0.067 per day equals $0.94 in additional interest for a total of $87.71 in interest on the Exhibit 16 damages through March 27, 2023.

$1,185.00 at 7% from September 26, 2019, through March 13, 2023, equals $287.49. (In fact it totals $287.26)

Interest from March 13, 2023, through March 27, 2023, at $0.23 per day equals $3.22 in additional interest for a total of $290.71 in interest on the Exhibit 26 damages through March 27, 2023. (In fact it totals $290.48)

$199.00 at 7% from January 2, 2020, through March 13, 2023, equals $46.73. (In fact it totals $44.50)

Interest from March 13, 2023, through March 27, 2023, at $0.038 per day equals $0.53 in additional interest for a total of $47.26 in interest on the Exhibit 34 damages through March 27, 2023. (In fact it totals $45.03.)

Interest from March 13, 2023, through March 27, 2023, at $0.163 per day equals $2.28 in additional interest for a total of $192.03 in interest on the Exhibit 35 damages through March 27, 2023.

(Motion, pgs. 5-6; Reply Decl. of Garcia ¶2.) With the exception of mathematical errors, the Court agrees with Plaintiffs’ calculation of prejudgment interest for these items.

Defendant Acosta, in opposition, argues Plaintiffs have not established fraud in her case as an individual, and therefore Civil Code §§3287 et seq. and §3288 do not apply to her circumstances as an individual defendant. (Opposition, pg. 3.) Defendant Acosta further argues the Court should not award Plaintiffs compound interest. (Opposition, pg. 3.) Defendant Acosta’s arguments are unavailing, first because it is not proper to argue the merits of the underlying action in the instant motion for prejudgment interest, and second, because Plaintiffs do not seek compounding interest and only seek simple interest.

Based on the foregoing, Plaintiffs’ motion for an award of prejudgment interest against Defendants in the reduced amount of $660.03 is granted.

[1] Defendant Acosta’s response, construed as an opposition, indicates that she separately filed a notice of judicial notice. However, no request for judicial notice has been filed with the Court.

[2] The Court notes Defendant Acosta’s Response is not in compliance with C.C.P. §128.7(a), which requires “[e]very pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” The Court in its discretion, will consider Defendant Acosta’s response for the purpose of this tentative ruling, and will strike Defendant Acosta’s response per C.C.P. §128.7(a) for lack of a signature, unless Defendant Acosta can promptly correct the omission.

[3] Plaintiffs appear to have incorrectly inputted the value of the damages ($177.48) instead of the interest on damages and will be corrected to $44.78 based on the Court’s calculations.