Judge: Theresa M. Traber, Case: 19STCV16203, Date: 2023-02-14 Tentative Ruling

Case Number: 19STCV16203    Hearing Date: February 14, 2023    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     February 14, 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

 

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 to the Estate of Decedent Robert Alexander McClintock, Jr. against Defendant Lisa Brennan.

 

TENTATIVE RULING:

 

Plaintiff’s Motion for an Award of Prejudgment Interest to the Estate of Robert Alexander McClintock Jr. is GRANTED.

 

DISCUSSION

 

Plaintiff seeks an award of prejudgment interest to the Estate of Decedent Robert Alexander McClintock, Jr.

 

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Defective Proof of Service

 

Plaintiff’s proof of service, attached to the moving papers, does not provide the date this motion was served on Defendants. Although the proof of service states that it was served in January 2023, it does not provide an exact date. (See POS.) Plaintiff has therefore not demonstrated proper service of this motion. However, as Defendant has not objected to the motion on this basis, the Court will overlook this defect and address the motion on its merits.

 

Analysis

 

Plaintiff seeks an award of prejudgment interest to the Estate of Decedent Robert Alexander McClintock, Jr 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 percent 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, on behalf of the estate, 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 the Estate has been awarded $165,000 out of the total $200,000 award, Plaintiff therefore requests, for the Estate, 82.5% of the total interest. As judgment has not yet been entered, the amount of prejudgment interest is not yet fixed.

 

            In opposition, Defendant argues that Plaintiff waived the right to collect prejudgment interest on behalf of the estate, because Plaintiff did not specifically move for such an award when Plaintiff sought prejudgment interest for himself. This argument is not well-taken.

 

“[T]here is no authority mandating any particular procedure for securing an award of prejudgment interest.” (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 829.) “[N]o statute or rule of court establishes a procedure for requesting an award of prejudgment interest, or a time limit therefor, in the superior court.” (Id. at pp. 829-830.) Nevertheless, a party must make a reasonably timely request for prejudgment interest. “[P]rejudgment interest is not a cost, but an element of damages,” and therefore “prejudgment interest should be awarded in the judgment on the basis of a specific request therefor made before entry of judgment.” (Id. at p. 830.)  Consistent with this standard, Plaintiff here has requested prejudgment interest before entry of judgment. 

 

 Nor is there a basis for finding that Plaintiff waived the right to prejudgment interest.  As stated in the authorities cited by Defendant, waiver is an intentional relinquishment of a known right after knowledge of the facts. (Waller v. Truck Ins. Exch. Inc. (1995) 11 Cal.4th 1, 31-32.) Waiver may be implied from conduct which inferentially manifests an intention to waive. (See, e.g., Hohnson v. Kaeser, (1925) 196 Cal.686, 698.) Here, however, Plaintiff made extensive references to prejudgment interest on behalf of the estate in the previous motion. (See, generally, December 8, 2022 Motion for Prejudgment Interest.) The Court declined to address the issue in its ruling on that motion because Plaintiff had not properly stated a request for that award in his Notice of Motion. (January 16, 2023 Minute Order.) The Court cannot conclude, based on these facts, that Plaintiff’s conduct warrants an inference that Plaintiff intended to waive any claim to prejudgment interest for the Estate. In fact, Plaintiff’s previous motion invites the opposite conclusion. The Court therefore finds that Plaintiff has not waived any claims for prejudgment interest on behalf of the Estate.

 

Defendant also challenges the request for prejudgment interest on the grounds that the Estate’s damages were not certain or capable of being made certain until a judicial determination was made based on conflicting evidence. Defendant maintains the objections raised in opposition to the previous motion for prejudgment interest. However, Defendant states that she “under-stands the Court will likely apply the analysis under Section 3287 equally to the $165,000 portion awarded to the estate.” (Opposition p. 1 fn.1.) Defendant is correct. As stated previously, the Court’s view is that apportionment of an award between Plaintiff and the 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).

 

CONCLUSION

 

Accordingly, Plaintiff’s Motion for an Award of Prejudgment Interest to the Estate of Robert Alexander McClintock Jr. is GRANTED.

 

Moving party to give notice.

 

IT IS SO ORDERED.

 

Dated:   February 14, 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.