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Spiegel & Yochelson v. Brown3/4/2003
rtation Co. (1990) 220 Cal.App.3d 177, 187-188 [appellate court will not consider procedural defects in connection with relief sought or defenses asserted where no objection was made to lower court].)
Without merit is Brown's contention that a quantum meruit claim cannot be the basis for prejudgment interest. "Prior to the amendment of Civil Code section 3287 in 1967, to add subdivision (b) (Stats. 1967, ch. 1230, ยง 1), it was the general rule that prejudgment interest was not to be awarded on unliquidated claims; i.e., `where damages can be ascertained only by a judicial determination upon conflicting evidence as to the amount due, . . .' [Citation.] . . . Hence, prior to the passage of Civil Code section 3287, subdivision (b), an award of prejudgment interest clearly was precluded in a quantum meruit action." (George v. Double-D Foods, Inc. (1984) 155 Cal.App.3d 36, 46 (George).) "Subdivision (b) of Civil Code section 3287 permits a discretionary award of prejudgment interest on unliquidated claims only when those claims arise `upon a cause of action in contract.'" (George, supra, 155 Cal.App.3d at p. 46.) Several courts have held that this statute is applicable to recoveries based in quantum meruit. (George, supra, 155 Cal.App.3d at p. 47 ["for most purposes, an action to recover the reasonable value of services is considered an action on a contract"]; see also Zalk v. General Exploration Co. (1980) 105 Cal.App.3d 786, 795 [as quantum meruit claim had a "consensual basis" grounded on the parties' agreement, it was a cause of action in contract within the meaning of Civil Code section 3287].)
S&Y;s quantum meruit claim against Brown arose out of the contingent fee agreement. Thus, the award of prejudgment interest is authorized by Civil Code section 3287, subdivision (b), and the trial court did not abuse its discretion in awarding such interest.
DISPOSITION
The judgment and the order denying Brown's motion to tax prejudgment interest are affirmed.
We concur:
SPENCER, P. J.
ORTEGA, J.
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