Judge: Theresa M. Traber, Case: 19STCV16203, Date: 2023-01-17 Tentative Ruling


Case Number: 19STCV16203    Hearing Date: January 17, 2023    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     January 17, 2023                   Verdict Returned: August 5, 2022

                                                          

CASE:                         Colin McClintock v. Henry George Brennan et al.

 

CASE NO.:                 19STCV16203 Consolidated with 20STCV01975

           

 

MOTION FOR PREJUDGMENT INTEREST

 

MOVING PARTY:               Plaintiff Colin McClintock

 

RESPONDING PARTY(S): Defendant Lisa Brennan

 

PROOF OF SERVICE:

 

CASE HISTORY:

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

            Plaintiff alleged that Defendant engaged in elder abuse by inducing Plaintiff’s father to make Defendant the sole beneficiary of a $200,000 life insurance policy.

 

            Plaintiff now moves for an award of prejudgment interest

 

TENTATIVE RULING:

 

Plaintiff’s Motion for an Award of Prejudgment Interest to Plaintiff is GRANTED.

 

Moving party to give notice.

 

DISCUSSION

 

Plaintiff seeks an award of prejudgment interest pursuant to Civil Code section 3287(a).

 

(a) Every 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 him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any such debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state. 

 

 

(Civ. Code § 3287(a), bold emphasis added.) 

 

The case law interpreting Civil Code section 3287 provides some guidance to its application . . . . As discussed above, "[t]he policy underlying authorization of an award of prejudgment interest is to compensate the injured party--to make that party whole for the accrual of wealth which could have been produced during the period of loss. [Citations.]" (Citation omitted.)  

 

The court in Cassinos also said: "The test for recovery of prejudgment interest under [Civil Code] section 3287, subdivision (a) is whether defendant actually know[s] the amount owed or from reasonably available information could the defendant have computed that amount. [Citation.]" (Citations omitted.) "The statute [Civil Code section 3287] does not authorize prejudgment interest where the amount of damage, as opposed to the determination¿of liability, 'depends upon a judicial determination based upon conflicting evidence and is not ascertainable from truthful data supplied by the claimant to his debtor.' [Citations.]" (Citation omitted.) Thus, where the amount of damages cannot be resolved except by verdict or judgment, prejudgment interest is not appropriate. (Citation omitted.)  

 

(Wisper Corp. v. Cal. Commerce Bank (1996) 49 Cal.App.4th 948, 960, bold emphasis and underlining added.) 

 

            Plaintiff argues that the amount of damages was calculable because the underlying AAA Life Insurance policy was worth $200,000, and, thus, implicitly, Defendant was able to calculate the maximum award that could have been made as the requested remedy was disgorgement of the proceeds from the policy. Plaintiff states that the interest rate on the award is 7% per annum, pursuant to Article XV, section 1 of the California Constitution and Children’s Hosp. & Med. Center v. Bonta (2002) 97 Cal.App.4th 740, 775. Plaintiff requests a pro-rata share of the 7% per annum interest based on the total $200,000 award beginning October 18, 2018 through the date of judgment. As Plaintiff has been awarded $35,000 out of the total $200,000 award, Plaintiff therefore requests 17.5% of the total interest. As judgment has not yet been entered, the amount of prejudgment interest is not yet fixed.

 

            Defendant argues that Plaintiff is not entitled to prejudgment interest because Plaintiff’s damages were not certain or capable of being made certain until a judicial determination was made based on conflicting evidence. In support of this contention, Defendant cites Wisper Corp. v. California Commerce Bank, a 1996 tort case in which the Court of Appeal concluded that the determination of damage to the plaintiff from the alleged tortious conduct were in dispute and could not be resolved except by verdict, as a key determination was the apportionment of comparative negligence. (Wisper Corp. v. California Commerce Bank (1996) 49 Cal.App.4th 948, 958-60.) Defendant contends that extent of damages were in dispute as to the apportionment between Plaintiff and the estate of the decedent.

 

            The Court is not persuaded by Defendant’s argument. In the Court’s view, apportionment of an award between Plaintiff and decedent’s estate is distinct from a factual determination of the apportionment of comparative fault that alters the amount for which the defendant would be liable. Considering the rule that “certainty” regarding prejudgment interest is broadly construed, (see Chesapeake Industries Inc. v. Togoya Enterprises, Inc. (1983) 149 Cal.App.3d 901, 907), the Court concludes, based on the fixed value of the policy, that the potential damages were certain insofar as they could be computed under the policy. The Court therefore finds that Plaintiff is entitled to prejudgment interest under section 3287(a).  The proper measure of prejudgment interest is 7 percent per annum of $35,000 from the date Defendant received the insurance proceeds instead of Plaintiff – August 18, 2018 – through entry of judgment. 

 

            Although Plaintiff makes extensive reference to an award of prejudgment interest for the estate of the decedent, no request for such an award was set out in the Notice of Motion. Plaintiff contends in reply that the Court may overlook this defect in the notice on the ground that the supporting materials discuss the matter sufficiently to cure the defective notice. However, the Court notes that Defendant has, effectively, objected to the absence of this request in the notice of motion by stating that only Plaintiff’s request for an award to Plaintiff is before the Court. As Plaintiff has not properly noticed this request, and Defendant has objected to the defective notice, the Court declines to rule on this issue at this time.

 

CONCLUSION

 

Accordingly, Plaintiff’s Motion for an Award of Prejudgment Interest to Plaintiff is GRANTED.  Plaintiff is entitled to recover prejudgment interest at the rate of 7 percent per annum on the $35,000 awarded by the jury from the date Defendant received the insurance proceeds instead of Plaintiff – August 18, 2018 – through entry of judgment.   

 

Moving party to give notice.

 

IT IS SO ORDERED.

 

Dated:   January 17, 2023                               ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

 


            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.