 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Stevens v. 396 Investment Co.5/17/2005
ppellate court is not required to search the record on its own seeking error. Again, any point raised that lacks citation may, in this court's discretion, be deemed waived. [Citation.]" (Ibid.) We exercise that discretion here and deem the point waived. The award of costs in favor of Vista Royale is affirmed.
P. PREJUDGMENT INTEREST:
(1) 396's Award
Continuing on, Anaheim asserts that the court made certain errors with respect to prejudgment interest. First, it argues that the court erred in awarding $1,462,863 in prejudgment interest to 396 because 396's claim was not "certain," within the meaning of Civil Code section 3287.
Civil Code section 3287, subdivision (a) provides in pertinent part: "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."
In support of its contention that the amounts owing to 396 were not certain, Anaheim cites 396's opposition to Anaheim's motion to set aside the judgment. In exhibit E to that opposition, 396 explained how it arrived at the $1,462,863 figure. 396 calculated interest from October 26, 1999, the date of payment of $2,200,000 to "Vista Crest." Interest was calculated as due and owing on many individual amounts paid after October 26, 1999, including amounts with respect to the "Peralta Pointe Plaintiffs," Vista Royale, individual property owners, the various lenders holding liens on the individual properties, First American Title Insurance Company, and M.M. Orange..
The fact that these specific amounts were known to 396 from and after October 26, 1999, does not mean either that Anaheim was aware of them as of the dates paid or that these amounts represented damages "certain" with respect to Anaheim in any event. " he courts . . . focus on the defendant's knowledge about the amount of the plaintiff's claim. The fact the plaintiff or some omniscient third party knew or could calculate the amount is not sufficient." (Chesapeake Industries, Inc. v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 907.)
396 counters that Anaheim was fully aware of the amounts owed. Indeed, in the Factual Stipulations, the parties, including Anaheim, stipulated as to certain amounts 396 had paid out pursuant to the settlement agreements. However, this is not evidence that Anaheim was aware of the amounts paid at the time they were paid, as early as October 26, 1999. More importantly, however, the amounts 396 paid in settlement did not necessarily fix the amount of Anaheim's liability.
As stated in Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 1175, "The question here is whether the damages were certain or ascertainable within the meaning of the statute. The total amounts of the settlement payments . . . of course were fixed by the sums paid and in that sense were certain. But the amount of the actual damages suffered . . . remained uncertain until some factfinder determined them . . . . At the time the settlement amounts were paid, it was not certain or ascertainable whether they would exceed, equal or be less than the amount of damages ultimately found by the trier of fact." Put another way, "the damages were not fixed by the settlement payments. Damages remained uncertain because they could not be ascertained until fixed at trial. In short, damages for equitable indemnity purposes are not made certain when some, but not all, of the tortfeasors settle with plaintiff. Partial settlements do not fix dama
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|