Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC352808. George Wu and Charles C. Lee, Judges.
Martin F. Goldman for Plaintiff and Appellant.
Schock & Schock and John P. Schock for Defendant and Respondent.
WOODS, J.
21st Capital Corp. (21st Capital) purports to appeal from an order denying a motion for new trial. Although an order denying a motion for new trial is nonappealable (Rodriguez v. Barnett (1959) 52 Cal.2d 154, 156), this court construes the notice of appeal to encompass the underlying judgment and therefore we consider the merits of this appeal. (Walker v. Los Angeles County MTA (2005) 35 Cal.4th 15, 22.)
On appeal, 21st Capital contends it was entitled to prejudgment interest on its award because the trial court “clearly intended” to award prejudgment interest and the “trial judge’s failure to timely enter judgment so as to create prejudice to the parties, and create an uncertainty in the record, is an ‘irregularity’ in the proceedings, from which plaintiff [21st Capital] is entitled to relief.” We disagree. In light of the omission of prejudgment interest in the minute order, a lack of certainty of the trial judge’s final dispositive intent on the issue of prejudgment interest, and the fact that damages were not sufficiently certain or calculable, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Nature of the suit
On May 23, 2006, 21st Capital filed a cause of action entitled “complaint for money” against Dorn Platz seeking to recover over $102,000 under account receivables allegedly assigned to 21st Capital by Pacific Coast Air Conditioning & Electrical (Pacific Coast).
On June 16, 2006, Dorn Platz answered the complaint against 21st Capital and also filed a cross-complaint against Pacific Coast claiming Dorn Platz never agreed or signed any electronic obligation, never received instructions from Pacific Coast to pay 21st Capital, already made payment for some invoices, and installation of a new air conditioning system was never completed by Pacific Coast for which Dorn Platz was forced to hire another contractor. The case was assigned to Judge George Wu.
Pacific Coast filed for bankruptcy while the matter was pending and as a result the cross-complaint was dismissed.
2. The trial and judgment
A nonjury trial was held on March 28, 2007, with Judge George Wu presiding. After Judge Wu heard testimony and considered the evidence, the trial court found in favor of 21st Capital in the amount of $83,303. Judge Wu issued a minute order that same day. The minute order indicated in part “The Court, after hearing testimony and considering evidence, finds Judgment in favor of Plaintiff and against the Defendant in the amount of $83,303.00.” In addition, 21st Capital was “to prepare and submit a form of Judgment within 3 business days.” Although 21st Capital claims to have submitted the proposed judgment to the court for filing on March 30, 2007, the record on appeal does not reflect the filing of the proposed judgment on that day. Rather, the record on appeal contains only a memorandum of costs totaling $505 which was received and marked as a conformed copy by the superior court on April 2, 2007.
Nevertheless, immediately after trial, counsel for Dorn Platz received by fax a copy of the proposed judgment prepared by 21st Capital in the amount of $101,469.10. Without delay Dorn Platz filed its objection to the proposed judgment on March 29, 2007. In particular, Dorn Platz objected to the inclusion by 21st Capital of prejudgment interest of $16,660 and attorney fees of $1,000. Dorn Platz stated “Judge Wu had not awarded either in his tentative decision.”
On April 9, 2007, Judge Wu continued the hearing regarding the proposed judgment to April 26, 2007. Sometime before the hearing date, Judge Wu was appointed to the United Stated District Court. On April 25, 2007, the day before the scheduled hearing, Judge Charles C. Lee, pursuant to Code of Civil Procedure section 635, signed and caused the proposed judgment of 21st Capital to be entered in the amount of $101,469.10 without the benefit of a hearing. Code of Civil Procedure section 635 states in part “when the judge who heard or tried the case is unavailable, the formal judgment or order conforming to the minutes may be signed by the presiding judge of the court or by a judge designated by the presiding judge.” (Italics added.) However, the minute order dated March 28, 2007, did not reflect an award of prejudgment interest or attorney fees.
On June 1, 2007, Dorn Platz filed a motion to vacate and/or correct the judgment to remove prejudgment interest and attorney fees from the judgment as they were not included in Judge Wu’s decision. Judge Lee granted the motion to correct judgment on June 20, 2007, and a new judgment was entered for $83,808.50 which conformed to the minute order, plus additional costs, but did not include prejudgment interest and attorney fees.
On June 25, 2007, 21st Capital filed a notice of intention to move for a new trial claiming “there was an irregularity in the proceedings of the court that prevented the plaintiff [21st Capital] from having a fair trial and that materially effected its substantial rights.”
On July 3, 2007, Dorn Platz filed a response to this motion for new trial claiming there were no irregularities at trial or with the corrected entry of judgment that would justify a new trial, and also that the motion for new trial was not timely.
As to the timeliness of the motion for new trial, the original judgment was entered April 25, 2007, and notice given on May 8, 2007. The time to file a motion for new trial is within 15 days of the date of mailing notice of entry of judgment by the clerk of the court which in this case would extend to May 23, 2007. However, because we treat the motion for new trial as having been taken from the corrected judgment entered on June 20, 2007, we deem the new trial motion to have been timely.
On August 13, 2007, Judge Lee conducted further proceedings in this case and heard arguments from the parties. At that time, Judge Lee issued a minute order and final ruling which reflected the rulings of Judge Wu. Judge Lee denied the motion for a new trial and stated in its ruling “Among other things, the motion does not appear timely. Even if it was timely and this court could properly consider the motion, there do not appear any irregularities that would justify a new trial. Plaintiff argues that the court intended to award prejudgment interest. There is a reference in the reporter’s transcript regarding ‘interest,’ but the court may have initially considered prejudgment interest, but upon further reflection, decided not to award prejudgment interest. The brief excerpt of the reporters transcript reflects the court stated it would award ‘68,000,’ subtract ‘3.4 thousand,’ and ‘plus interest.’ The minute order of March 28, 2007, reflects that the court found judgment in the amount of $83,303.00’ It is unclear how the court arrived at this figure. . . . What is certain is that the court awarded judgment in the amount of $83,303, and did not mention an additional award of prejudgment interest, which it clearly could have done.”
On August 21, 2007, 21st Capital filed a timely notice of appeal in which it stated: “[P]laintiff, 21st CAPITAL CORP. hereby appeals from this court’s order denying the plaintiff’s Motion for a New Trial, entered herein on August 13, 2007.” (Italics added.) Even though 21st Capital purports to appeal only from the order denying a new trial which is nonappealable, in this instance we liberally construe the notice of appeal to encompass the corrected judgment because 21st Capital stated in its opening brief on appeal that it “appeals the ‘corrected’ judgment entered by [the trial] court, and the order denying motion for new trial.” (Walker v. Los Angeles County MTA, supra, 35 Cal.4th at p. 22.)
CONTENTIONS ON APPEAL
21st Capital’s contention on appeal is that it is entitled to prejudgment interest because the “trial judge’s failure to timely enter judgment so as to create prejudice to the parties, and create an uncertainty in the record, is an ‘irregularity’ in the proceedings, from which plaintiff is entitled to relief.” In addition, 21st Capital claims “Judge Wu clearly indicated that he was going to award judgment in favor of the plaintiff ‘plus interest.’”
DISCUSSION
I. Irregularity in the proceedings
The irregularity complained of by 21st Capital was that, despite the fact Judge Wu did not include prejudgment interest or attorney fees in the minute order, the trial court’s failure to timely sign the proposed judgment prevented 21st Capital from receiving its prejudgment interest and attorney fees. 21st Capital states “it is clear that the judge intended to enter the judgment he had awarded, but due to the intervening circumstances of his elevation to the Federal Bench, through inadvertence, the judgment was never signed prior to his departure from the Los Angeles Superior Court Bench. [¶] However, plaintiff should not be deprived by the acts of the trial judge, over which the plaintiff had absolutely no control.” We disagree.
21st Capital did have control over the preparation of the form proposed judgment. In fact, at the end of the trial, counsel for 21st Capital, Attorney Martin Goldman, said “I will prepare a judgment” and Judge Wu ordered 21st Capital to prepare and submit a form of judgment within three business days. This was never done by 21st Capital. A review of the record does not disclose that a form judgment was filed with the court within three business days, even though Dorn Platz filed an objection to the proposed judgment a day after the trial concluded.
21st Capital alleges Judge Lee should have granted a new trial on the basis of irregularities in the proceedings because Judge Wu never had the opportunity to enter an order on the proposed judgment. 21st Capital claims in its motion that “the only appropriate and proper remedy herein, is simply to order a new trial, and relitigate the matter in its entirety.” Again, this argument fails. In order to succeed, the motion for new trial had to be based on something that occurred during the trial and/or on judicial error in Judge Wu’s decision and not on the subsequent confusion over the entry of the eventual judgment since Judge Lee was bound by Judge Wu’s decision as reflected in the minute order.
Moreover, although there may have been confusion as to the dispositive intent of Judge Wu, it was not an abuse of discretion for Judge Lee to enter a judgment consistent with the minute order and then deny the new trial motion. While 21st Capital acknowledges on the one hand Judge Lee was obligated to enter judgment consistent with Judge Wu’s minute order, it goes on to state the “appropriate and proper remedy was to file a motion for new trial, so the court could take evidence, if necessary, or even rule as a matter of law, pursuant to Civil Code Section 3287 that plaintiff was entitled to judgment [and] [a] ‘successor judge’ would have the right to grant a new trial on all or part of the issues, or, in lieu of granting a new trial, may vacate and set aside a judgment and reopen the case for further proceedings and the introduction of additional evidence, regardless of whether the judge ruling on the motion for new trial was the trial judge or not.” As to the reopening of the case for new trial, in this instance, we disagree with 21st Capital.
Judge Lee correctly noted at the hearing for new trial that the trial proceedings did not involve irregularities, that there was reference to “interest” by Judge Wu which he may have initially considered, but more importantly the minute order did not reflect an award of prejudgment interest or attorney fees. As a result, Judge Lee did not abuse his discretion in entering a corrected judgment to reflect the minute order of Judge Wu and then denying the motion for new trial.
II. The trial court’s statement about interest during the trial is not an award of prejudgment interest.
21st Capital contends that during the course of discussions and argument at trial, “the court made it abundantly clear . . . that at that time, he was prepared to award the some [sic] of $68,000 . . . plus interest.”
The exchange was as follows:
“The Court: And let me put it this way. The – I would find that the amount owed is $68,000.
“[Counsel for Dorn Platz]: Your Honor, I have – he’s been talking over the last
“The Court: Well
“[Counsel for Dorn Platz]: I do have a comment.
“The Court: Okay. I’m going to subtract the 3.4 thousand.
“[Counsel for Dorn Platz]: I still have a comment.
“The Court: Yes. Plus interest.”
As pointed out by Judge Lee, it would be pure speculation to conclude that Judge Wu’s comment meant he was going to include prejudgment interest on the $68,000. This exchange occurred during the course of discussions at trial, and well before the trial court’s final pronouncement. It appears to this court that the “plus interest” statement was a “thinking through” or “thought out loud” comment by Judge Wu during discussions as to liability and not an award of prejudgment interest. The interest comment could have also pertained to the $3,400 offset credited to Dorn Platz since the comment came after reference to the $3,400.
Ultimately, Judge Wu’s final award to 21st Capital was $68,506, plus $18,575, minus $3,778, totaling $83,303 without reference to prejudgment interest. The minute order dated March 28, 2007, clearly states “The Court, after hearing testimony and considering evidence, finds Judgment in favor of Plaintiff and against the Defendant in the amount of $83,303.00.” As a result, Judge Lee properly entered a corrected judgment and denied 21st Capital’s motion for new trial.
III. Legal principles and policies governing an award of prejudgment interest
Civil Code section 3287 provides for the payment of prejudgment interest to every person entitled to receive damages which are certain or capable of being made certain by calculation if the right to receive such damages vested on a particular day. (Civ. Code, § 3287, subd. (a); Chesapeake Industries, Inc. v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 906.)
“There are two lines of authority which instruct us in the proper award of prejudgment interest under section 3287, subdivision (a). First, interest traditionally has been denied on unliquidated claims because of the general equitable principle that a person who does not know what sum is owed cannot be in default for failure to pay. [Citation.] Thus, no prejudgment penalty is assessed against a litigant for failing to pay a sum which is unascertainable prior to judgment. . . .
“The second line of authority advances the countervailing policy that injured parties should be compensated for the loss of the use of their money during the period between the assertion of a claim and the rendition of judgment. [Citation.] . . .
“These competing policy considerations have led the courts to 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. The test we glean from prior decisions is: did the defendant actually know the amount owed or from reasonably available information could the defendant have computed that amount. . . .” (Chesapeake Industries, Inc. v. Togova Enterprises, Inc., supra, 149 Cal.App.3d at p. 907.)
IV. Prejudgment interest not allowable here because Dorn Platz disputed not only the validity of the assignment but also disputed the performance of the work done
In this case, clearly there was disagreement between the parties as to whether or not there was even a valid assignment regarding the payment of invoices to 21st Capital. Dorn Platz denied that it ever actually or impliedly agreed to the invoice conformation agreement. Dorn Platz argued “that no one at Dorn Platz ever intended to enter into an electronic obligation and that no one at Dorn Platz ever agreed or signed any electronic obligation.” Secondly, Dorn Platz claimed to have paid Pacific Coast directly and was advised by Pacific Coast that Pacific Coast had never actually entered into the accounts receivable factoring agreement with 21st Capital. In addition, in spite of these contrary instructions, Dorn Platz claimed it was being overbilled because there were duplicate invoices, some invoices were previously paid, and that certain work was never completed for which Dorn Platz was forced to hire another contractor to complete the work. Indeed, 21st Capital admits in its brief on appeal that “there was a disagreement between the parties as to the amount of liability.”
Moreover, during the trial Judge Wu heard oral testimony from several witnesses for both sides, considered exhibits which were marked and admitted into evidence, heard motions that were argued, and then rendered a judgment in favor of 21st Capital in the amount of $83,303. Dorn Platz did not know or could have calculated the amount owed to 21st Capital. Clearly, the validity of the assignment and the fact that Dorn Platz brought a cross-complaint against Pacific Coast strongly suggests the amount of liability was not certain. “Consistent with this view, courts have reasoned that ‘where an accounting is required in order to arrive at a sum justly due, interest is not allowed.’ (Stockton Theatres, Inc. v. Palermo (1953) 121 Cal.App.2d 616, 632 [no abuse of discretion in refusing prejudgment interest after long and complicated accounting]; Schmidt v. Waterford Winery, Ltd. (1960) 177 Cal.App.2d 28, 34-35 [no prejudgment interest allowed where ascertainment of amount due under contract required an accounting]; . . . .)” (Chesapeake Industries, Inc. v. Togova Enterprises, Inc., supra, 149 Cal.App.3d at p. 908.)
Under the circumstances in this case, because of the uncertainty as to amount of indebtedness, prejudgment interest was not allowable on the adjudicated sum.
V. Large discrepancy between amount claimed by 21st Capital and final judgment further supports the conclusion the sum due was not certain or calculable by Dorn Platz
The amount claimed by 21st Capital in its complaint was $102,491.57 plus interest. The court eventually reduced the amount of damages claimed by 21st Capital from over $102,000 to $83,303. A minor discrepancy between the amount claimed and the amount awarded does not bar prejudgment interest. (Martine Terminals Corp. v. Paceco, Inc. (1983) 145 Cal.App.3d 991, 997 [$2,461.70 error in invoices submitted to defendant did not render sum uncertain and bar prejudgment interest.)
In this case, however, we do not think a discrepancy in the amount of almost $20,000 suggests an inconsequential erroneous omission or miscalculation of costs by 21st Capital. Rather, we find the discrepancy between the amount claimed and the eventual judgment was large enough to further support a conclusion that the damages were not certain or calculable by Dorn Platz.
For the reasons stated herein, the court did not err in entering a corrected judgment and denying the motion for new trial.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
We concur: PERLUSS, P.J., ZELON, J.