Opinion
For Laurie B LLC, a California limited liability company, Mel Bernie & Company, Inc., a California corporaton, doing business as 1928 Jewelry Company, Emily A LLC, a California limited liability company, Jewelm, LLC, a California limited liability company, 1928 Watch Company, a California corporaton, Melvyn J Bernie, Trustee of the Bernie Family Trust dated 10/31/1990, Laurie S Bernie, Trustee of the Bernie Family Trust date Octoer 31, 1990, Melvyn J Bernie, an individual, Laurie S Bernie, an individual, Plaintiffs: Steven Glaser, LEAD ATTORNEY, Law Offices of Steven Glaser, Beverly Hills, CA.
For Wells Fargo Bank, N.A., Defendant: Robert Louis Fisher, LEAD ATTORNEY, Barton Klugman and Oetting, Los Angeles, CA; Terry L Higham, LEAD ATTORNEY, Mark A Newton, Barton Klugman and Oetting LLP, Los Angeles, CA.
Proceedings: IN CHAMBERS--ORDER RE PLAINTIFF'S MOTION FOR AN AWARD OF PREJUDGMENT INTEREST [105]
The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE.
On May 8, 2015, this Court granted Plaintiff Laurie B LLC's Motion for Summary Judgment and denied Wells Fargo's Motion for Summary Judgment. [Doc. # 100.] On May 20, 2015, Laurie B LLC filed a Motion for An Award of Prejudgment Interest. [Doc. # 112.]
Laurie B LLC seeks prejudgment interest from the date each check was converted as a matter of right. " State pre-judgment interest rules are to be applied in diversity cases." James B. Lansing Sound, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 801 F.2d 1560, 1569 (9th Cir. 1986), amended, 981 F.2d 1549 (9th Cir. 1992). In particular, state law determines the rate of prejudgment interest. Rosendin Elec., Inc. v. United Pac. Ins. Co., 42 F.3d 1401 (9th Cir. 1994). Under California law, " prejudgment interest is a matter of right where there is a vested right to recover 'damages certain' as of a particular day." In re Niles, 106 F.3d 1456, 1463 (9th Cir. 1997) (citing Cal. Civ. Code § 3287(a)). Damages are certain or capable of being made certain by calculation " if the defendant actually knows the amount of damages or could calculate that amount from information reasonably available to the defendant." Collins v. City of Los Angeles, 205 Cal.App.4th 140, 151, 139 Cal.Rptr.3d 880 (2012). Damages are ascertainable " if the only impediment to the determination of the amount is a legal dispute concerning liability or the measure of damages." Id. On the other hand, damages are unascertainable " if the amount of damages depends on disputed facts or the available factual information is insufficient to determine the amount." Id.
Here, the amount of Laurie B LLC's damages for the conversion of the checks is certain or capable of being made certain within the meaning of Cal. Civ. Code § 3287(a). The measure of liability for conversion " is presumed to be the amount payable on the instrument, but recovery may not exceed the amount of the plaintiff's interest in the instrument." Cal. Com. Code § 3420(b). Laurie B LLC has attached copies of the checks, which show the amount payable on each check and the date that each check was accepted for deposit into the account of Desert Underground Utilities, Inc. ( See Declaration of Steven Glaser In Support of Plaintiff's Motion for Summary Judgment (" Glaser Decl.") ¶ 6, Exh. E (" Copies of Checks") [Doc. # 73].) Under California law, prejudgment interest in an action not arising from contract is seven percent per annum. Children's Hosp. & Med. Ctr. v. Bonta, 97 Cal.App.4th 740, 775, 118 Cal.Rptr.2d 629 (2002). Laurie B LLC has calculated the amount owed by Wells Fargo in prejudgment interest based on the amount payable on the checks, the date that each check was converted by Wells Fargo, and the seven percent rate of prejudgment interest. (Declaration of Steven Glaser In Support of Plaintiff Laurie B LLC's Motion for An Award of Prejudgment Interest (" Glaser Prejudgment Decl.") ¶ 2, Exh. A (" Excel Spreadsheet of Calculations") [Doc. # 112-2].)
Wells Fargo objects to the inclusion of Check No. 1228, which was drawn by Laurie B LLC and payable to Laurie B LLC. ( See Glaser Decl. ¶ 6, Exh. E (" Copies of Checks").) This check is not included in Laurie B LLC's prejudgment interest calculations, so this argument is moot. ( See Glaser Prejudgment Decl. ¶ 2, Exh. A (" Excel Spreadsheet of Calculations").)
Wells Fargo also attempts, in its objection to a motion for prejudgment interest, to revive the argument it made in its motion for summary judgment regarding Paul Edmeier's authority to deposit the checks and attaches exemplars of his signature to show that he indeed wrote the account number of the Desert Underground Utilities, Inc. account on the back of the checks. The fact that he did so was never in dispute, however. Moreover, Wells Fargo inappropriately raises its argument in an opposition to a motion for an award of prejudgment interest.
In a supplemental objection, Wells Fargo also disputes the amount of the award calculated by Laurie B LLC because Wells Fargo has purportedly already paid $44, 738.81 to Laurie B LLC. ( See Wells Fargo's Supplemental Objection (" D's Supp. Obj.") at 1 [Doc. # 118].) This payment was made pursuant to levy on a prejudgment writ of attachment in a related Superior Court action, Melvyn J. Bernie, et al. v. Paul Edmeyer [ sic ], Los Angeles Superior Court Case No. BC 516943. Laurie B LLC argues, however, that the money taken from the Desert Underground Utilities, Inc. account at Wells Fargo should not be credited against this judgment for two reasons: (1) Edmeier stole more from the Bernie family than the amount of the judgment to be entered in this case, and (2) the funds to be paid by the Sheriff to the plaintiffs in the state court case will be allocated to judgment creditors other than Laurie B LLC. Thus, Wells Fargo has failed to make a showing of double recovery.
In light of the foregoing, Laurie B LLC's Motion for An Award of Prejudgment Interest is GRANTED in the amount requested of $249, 019.69. The June 26, 2015 hearing is VACATED.
IT IS SO ORDERED.
JUDGMENT
On May 8, 2015, the Court filed its Order [Doc. # 100] granting Plaintiff Laurie B LLC's motion for summary judgment as to the first claim for relief in the First Amended Complaint [Doc. #34]. Plaintiffs thereafter requested that the Court dismiss the second and third claims for relief in the First Amended Complaint as moot [Doc. # 101], and the Court hereby dismisses those claims without prejudice. The Court also granted Plaintiffs' request for prejudgment interest in the amount of $249, 019.69. [Doc. # 123.]
Therefore, judgment in this matter is entered in favor of Plaintiff Laurie B LLC and against Defendant Wells Fargo Bank, N.A., in the amount of $1, 358, 822.42, plus $249, 019.69 in prejudgment interest.