Judge: Theresa M. Traber, Case: BC663153, Date: 2022-12-16 Tentative Ruling

Case Number: BC663153    Hearing Date: December 16, 2022    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     December 16, 2022                Judgment Entered: October 10, 2022

                                                          

CASE:                         Woodside Ranch, LLC v. The Barnyard, et al.

 

CASE NO.:                 BC663153

           

 

MOTION FOR PREJUDGMENT INTEREST

 

MOVING PARTY:               Plaintiff Woodside Ranch, LLC.

 

RESPONDING PARTY(S): Defendant Dennis Neice (erroneously sued as Dennis Niece) d/b/a The Barnyard.

 

CASE HISTORY:

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

            Plaintiff alleged that Defendants breached a contract to sell all their Western-themed memorabilia to Plaintiff and have kept some items that Plaintiff purchased. Judgment was awarded to Plaintiff in the amount of $82,500.

 

            Plaintiff now moves for an award of prejudgment interest in the amount of $60,891.78

 

TENTATIVE RULING:

 

Plaintiff’s Motion for Prejudgment Interest is GRANTED in the amount of $60,869.18.

 

DISCUSSION

 

Plaintiff seeks an award of prejudgment interest pursuant to Civil Code section 3287(a), or, alternatively, in a reduced amount pursuant to section 3287(b): 

 

(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. 

 

(b) 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(a)-(b), 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 contract was for goods in the amount of $550,000, and, thus, implicitly, Defendant was able to calculate the maximum award that could have been made, and could determine any fraction of that award based on what was or was not delivered. (See Declaration of Lia Thorosian ISO Mot. ¶ 7; Exhs. B-E.) Plaintiff calculates the total amount of prejudgment interest at $60,891.78. This calculation is derived from an assessed interest rate on the award of $82,500 of 10% per annum, pursuant to Civil Code section 3829, divided by 365 days per year. (Id. ¶ 9.) Thus, at a corresponding daily interest rate of $22.60 per day, multiplied by 2,694 days between the date of breach on May 27, 2015 and a purported date of entry of judgment on October 11, 2022, the total amount owed, according to Plaintiff, is $60,891.78. (Id.) Plaintiff’s calculations are in error in that judgment was entered on October 10, not October 11. Thus, the proper amount by this method would be $60.869.18.

 

            Defendant argues that Plaintiff’s motion is untimely because it should have made a specific request for prejudgment interest before entry of judgment. Plaintiff had, however, already requested prejudgment interest before the judgment was entered. In addition, the Court always has jurisdiction to correct or amend its orders, including the power, under Code of Civil Procedure section 187, “to use all means to carry its jurisdiction into effect, even if those means are not set out in the code.”  (NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 778.) Here, Plaintiff’s request may properly be considered. 

 

            Defendant also 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 Duale v. Mercedes Benz USA, LLC, a 2007 Song-Beverly case in which the Court of Appeal concluded that the determination of damage to the plaintiff from the alleged defects in the vehicle at issue were in dispute and could not be resolved except by verdict. (Duale v. Mercedes Benz USA, LLC (2007) 148 Cal.App.4th 718, 729.) Defendant contends that the extent of damages were in dispute as to whether all the items to be delivered under the contract were delivered to Plaintiff, and, if not, the value of those items.

 

            In reply, Plaintiff argues that Defendant overextends the reach of Duale to create an absurd result where, whenever the amount of damages is in dispute for any reason, a plaintiff is not entitled to prejudgment interest. Plaintiff also argues that Duale is factually distinguishable, as this action is an action for breach of contract for the sale of goods, and not a lemon law action under the Song-Beverly Act.

 

            Defendant’s reliance on Duale is not entirely misplaced. In that case, the Duale court concluded that determination of the award required the jury to make numerous factual determinations involving the existence of any defects and whether they impaired the use, value, or safety of the vehicle at issue. (Duale, supra, 148 Cal.App.4th at 729.) Here, there was a similar dispute as to whether the goods were properly delivered as required by the contract, and, if they were not, their value. However, as Defendant correctly notes, well-established precedent holds that “[t]he existence of a bona fide dispute between the parties as to the amount owing under an express contract does not render that sum unliquidated.” (See, e.g., Rabinowitch v. California Western Gas Co. (1967) 257 Cal.App.2d 150, 161.)  

 

            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 contract, that the potential damages were certain insofar as they could be computed under the contract based on the goods that were (or were not) delivered. The Court therefore finds that Defendant is entitled to prejudgment interest under section 3287(a). The Court thus declines to address the issue of whether interest should be awarded under section 3287(b).

 

CONCLUSION

 

Accordingly, Plaintiff’s Motion for Prejudgment Interest is GRANTED in the amount of $60,869.18.

 

Moving party to give notice.

 

IT IS SO ORDERED.

 

Dated:   December 16, 2022                           ___________________________________

                                                                                    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.