Opinion
B156357.
11-20-2003
JOSEPH REX PERERA et al., Plaintiffs and Appellants, v. EVA WINDSOR et al., Defendants and Respondents.
Law Offices of Dale K. Galipo and Dale K. Galipo for Plaintiffs and Appellants Joseph Rex Perera and Maria Perera. Law Offices of George H. Ellis and George H. Ellis for Defendants and Respondents Eva Windsor and Stephen M. Windsor, Jr. in LC 029774 and BC 213113; for Defendant and Respondent Stephen M. Windsor in LC 029774; and for Defendant and Respondent Allegiance Insurance Company in BC 213113.
In this consolidated action for wrongful death and declaratory relief, we remand for the trial court to amend the amount of the judgment as explained in the opinion. As amended, the judgment is affirmed.
BACKGROUND
On October 5, 1994, the two-year-old son of plaintiffs Joseph and Maria Perera accidentally drowned in a backyard swimming pool at the home of defendants Eva Windsor and Stephen Windsor, Jr., while Eva was babysitting the child. In the ensuing wrongful death action, the jury found total economic damages of $30,000, and non-economic damages of $532,500. The jury apportioned liability as follows: 60 percent against Eva; 0 percent against Evas husband; 10 percent against Evas son, defendant Stephen M. Windsor (who was 19 years old at the time of the accident and has since filed for bankruptcy); 10 percent against Evas boarder, defendant Josef Halmos (an unrelated family friend who is now deceased and apparently left no estate); and 20 percent against plaintiffs.
Evas husband (Stephen Windsor, Jr.) and son (Stephen M. Windsor) share the same name and are both respondents on appeal. To avoid confusion, we will refer to them as Evas husband and son, rather than by name. Given that the jury absolved Evas husband of liability for wrongful death, we will refer to him only as relevant to his role as respondent on appeal.
Perera v. Windsor (Super. Ct. L.A. County, 1997, No. LC029744).
On August 29, 1997, the court entered judgment for wrongful death against Eva, Evas son, and Halmos as follows: (1) of the $30,000 economic damages award, 80 percent, or $24,000, was assessed jointly and severally against Eva, Evas son, and Halmos; and (2) of the $532,500 non-economic damages award, (a) 60 percent, or $319,500, was assessed against Eva individually; (b) 10 percent, or $53,250, was assessed against Evas son individually; and (c) 10 percent, or $53,250, was assessed against Halmos individually. The court also awarded plaintiffs post-judgment interest according to law and $5,046 in costs.
In September 1997, Evas homeowners liability insurer, defendant Allegiance Insurance Company, tendered to plaintiffs the $300,000 limit of Evas policy plus costs of $5,046, for a total of $305,046.
An insurance allocation dispute arose regarding the allocation of the $305,046 payment. Eva and Allegiance took the position that the entire payment should be allocated solely toward Evas share of the judgment. Plaintiffs, however, wanted to extinguish Evas sons and Halmos obligations before applying the balance toward Evas share of the judgment. Eva, unlike her son, has other assets with which to satisfy her share of the judgment, including the proceeds from the sale of her home. By stipulation, $192,806.60 of Evas home sale proceeds was placed into a blocked trust account pending resolution of the insurance allocation dispute.
Evas son filed for bankruptcy and listed the wrongful death judgment as his sole liability. Plaintiffs filed a complaint in Evas sons bankruptcy proceeding, seeking to satisfy their wrongful death judgment against him. In July 1998, plaintiffs and Evas son stipulated in the bankruptcy proceeding to the conditional dismissal of plaintiffs complaint "on the condition that the Plaintiffs are able to satisfy their Judgment against [Evas son] in full from the tendered insurance policy [illegible] Allegiance Insurance Company." (In re Stephen M. Windsor (SV97-23246AG, U.S. Bankr. Ct., Cal., 1998).)
Neither Eva nor Allegiance was a party to the conditional bankruptcy settlement agreement. In the wrongful death action, Eva and Allegiance moved to apply the entire $ 305,046 policy payment exclusively toward Evas share of the judgment and enter a partial satisfaction of judgment in her favor. The trial court granted the motion, ruling that under Civil Code section 1479, both Eva and Allegiance have the right to apply the entire insurance payment toward Evas share of the judgment. The court further concluded that if section 1479 is found to be inapplicable, the courts just and equitable ruling would be to apply the insurance proceeds solely in Evas favor. The trial court ordered that the blocked funds (the proceeds from the sale of Evas home) be released to Eva.
Section 1479 provides in relevant part: "Where a debtor, under several obligations to another, does an act, by way of performance, in whole or in part, which is equally applicable to two or more such obligations, such performance must be applied as follows: [¶] One. If at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation, be manifested to the creditor, it must be so applied . . . ."
Plaintiffs then petitioned this court for a writ of mandate to overturn the trial courts order applying the insurance proceeds entirely to Evas share of the judgment and releasing the blocked funds to Eva. In the prior writ proceeding, we stayed the order, issued an order to show cause, and, following briefing and oral argument, granted plaintiffs petition. Finding Civil Code section 1479 to be inapplicable to the insurance allocation dispute in this case, we directed the superior court to vacate the challenged order and hold a new hearing to determine whether Halmos was a covered insured (noting that Allegiance had conceded Evas sons status as a covered insured), and then equitably apportion the insurance proceeds among any judgment debtors who are covered insureds. (Perera v. Superior Court (B141720, Sept. 21, 2000) [nonpub. opn.].)
Upon remand, Allegiance, Eva, Evas husband, and Evas son moved for summary judgment or, alternatively, summary adjudication of issues, in plaintiffs wrongful death action, which had been joined with plaintiffs declaratory relief action against Allegiance, Eva, Evas son, and Halmos, regarding the insurance allocation dispute. Allegiance, Eva, Evas husband, and Evas son filed two summary judgment motions, the first of which was filed in February 2001, but was never heard. The second summary judgment motion, filed in August 2001, is the subject of this appeal.
On July 7, 1999, plaintiffs filed a declaratory relief action against Eva, Evas son, Allegiance, and Halmos. (Perera v. Windsor (Super. Ct. L.A. County, No. BC213113).) Plaintiffs sought a declaration that, among other things, Halmos was a covered insured, Evas sons bankruptcy had no effect on Allegiances obligation to pay for Evas sons share of the wrongful death judgment or plaintiffs right to collect on that judgment, and plaintiffs were entitled to the funds in the blocked account (the proceeds from the sale of Evas house). The summary judgment motion that is the subject of this appeal listed both case numbers for the wrongful death and declaratory relief actions.
Plaintiffs also filed another action against Allegiance, Eva, Evas husband, and Evas son for fraud, breach of contract, abuse of process, intentional infliction of emotional distress. (Perera v. Allegiance Insurance Co. (Super. Ct. L.A. County, No. LC046487).) The fraud complaint alleged that defendants had fraudulently attempted to apply the insurance proceeds exclusively toward Evas share of the wrongful death judgment.
According to the April 30, 2001, notice of ruling contained in the Respondents Augmented Record, the first summary judgment motion was taken off calendar on April 17, 2001. Plaintiffs opening brief states, however, "On April 17, 2001, the trial court opined that Josef Halmos would be a covered insured under the language of the HM-7 policy, particularly in light of the fact that he was doing a domestic duty by temporarily babysitting the child and was specifically delegated that domestic duty by the named insured Eva Windsor." Plaintiffs provide us with no record references to support this allegation, which respondents contends "is both factually, procedurally and legally incorrect." We will disregard as unsupported by the record plaintiffs allegation that the trial court found Halmos to be a covered insured under the HM-7 policy.
The two summary judgment motions sought summary adjudication of the same issues: "1. Neither Josef Halmos (now deceased) nor his estate is a covered insured under the terms of the ALLEGIANCE INSURANCE COMPANY policy at issue. [¶] 2. The ALLEGIANCE INSURANCE COMPANY policy proceeds should be allocated between Defendant EVA WINDSOR and [Evas son] defendant STEPHEN M. WINDSOR on a pro rata basis."
The two summary judgment motions differed significantly, however, in that the first motion alleged that the policy in effect at the time of the accident was the HM-7 policy, whereas the second motion alleged that the ML-7 policy was in effect at the time of the accident. In the second motion, the moving parties explained the confusion over the two policies as follows: Soon after the accident of October 5, 1994, plaintiffs had informally asked for a copy of Evas homeowners policy. After looking through his files, Evas husband had his daughter give plaintiffs the HM-7 policy.
In the first summary judgment motion, the moving parties contended that the HM-7 policy was in effect at the time of the accident, and that Halmos was not a covered insured under that policy.
In the first summary judgment motion, the moving parties contended Halmos was not an insured under the HM-7 policys coverage for persons performing domestic duties. Under paragraph 6(f) of the HM-7 policy, ". . . Insured also includes: [¶] . . . [¶] f. persons in the course of performing domestic duties that relate to the insured premises[.]" The moving parties argued in the first motion that Halmos was not covered under paragraph 6(f) of the HM-7 policy, stating in part: "Halmos was a bo[a]rder, a tenant in the Windsor home. He was not a relative. He was not a domestic servant. He paid the Windsors $1600 a month in rent for which he was provided room and board (3 meals a day) and laundry and any other household services he might need. Halmos was not paid to perform any `duties around the house and he had never before been asked to babysit or perform any similar tasks. He was not accountable to the Windsors for anything but his monthly rent. [¶] Halmos was not in the course of performing `domestic duties at the time of the accident; he was taking his daily walk in the backyard when Eva asked him to watch the child if the child came outside. She did not ask Halmos to remain outside in order to watch the child. [¶] Moreover, the `duties urged upon Halmos by Plaintiffs did not `relate to the `Insured Premises. `Insured Premises is defined in the insurance policy at [paragraph] 7.a.1. as the `house, related private structures and grounds at that location. Halmos was not gardening or cleaning or repairing the property. Watching a child for a few minutes on one occasion is not a task that relates to the `Insured Premises nor does it make one a domestic servant. A fair and reasonable reading of the policy is that Halmos was not an intended covered insured and to impose such an obligation on the homeowners policy would defeat the expectations held by the Windsors during the 20 year period they paid premiums on that policy." (Fn. and citations to exhibits omitted.)
In the second summary judgment motion, the moving parties contended that the ML-7 policy, and not the HM-7 policy, was in effect at the time of loss. According to the declaration of Nino Sgro, Allegiances claims manager, the original ML-7 policy was issued to Eva and her husband on November 12, 1989. Sgro attested that the ML-7 policy was renewed and replaced by the HM-7 policy, which took effect on November 12, 1994, after the date of loss. Sgro also explained that the ML-7 policy is an "`occurrence policy, meaning it covered all incidents `occurring during the policy period. [¶] . . . This incident occurred on October 5, 1994. Therefore, policy No. ML-7 was the policy which was applicable to this incident and, therefore, this loss. [¶] . . . A Renewal Declaration with Home Owners policy form no. HM-7 was sent to Stephen Windsor, Jr. and Eva Windsor, husband and wife, on September 30, 1994. The effective date of that [new] policy was November 12, 1994 . . . ."
In addition to Sgros declaration, the moving parties submitted Evas 1994-1995 insurance renewal declaration page which showed that the HM-7 policy took effect on November 12, 1994, after the date of the accident.
With regard to Halmos, Sgro stated that according to Allegiances coverage counsel, James Link, Halmos was not a covered insured under the ML-7 policy. The moving parties denied that Halmos was covered under the ML-7 policy as the "domestic employee of an insured." According to paragraph 6(b)(2) of the ML-7 policy, "insured also includes: [¶] . . . [¶] 2) any person while performing duties as a domestic employee of an insured." "Domestic employee" as defined in the policy means "a person employed by an insured to perform duties in connection with the maintenance or use of the insured premises. This includes persons who perform household or domestic services or duties of a similar nature elsewhere for an insured. This does not include persons while performing duties in connection with an insureds business."
Eva and her husband submitted declarations attesting that before the date of the fatal accident, they had never asked Halmos to babysit anyone, including plaintiffs son, and that Halmos had no domestic duties or obligations other than the payment of rent. In addition, they denied ever paying Halmos to perform any domestic duties or chores.
In opposition to the second summary judgment motion, plaintiffs contended that Halmos was a covered insured under either policy, HM-7 or ML-7. Plaintiffs also contended there was a triable issue of material fact as to which policy, HM-7 or ML-7, was in effect at the time of loss.
To refute defendants contention that the ML-7 policy was in effect at the time of loss, plaintiff Joseph Perera stated in his declaration that after the accident, Evas husband told plaintiffs that the HM-7 policy "had been in effect for several years prior to [plaintiffs] sons death." "After my sons death, I requested from Stephen Windsor, Jr. a copy of the homeowners insurance policy in effect at the time of my sons death on October 5, 1994. [¶] . . . A few days after my sons death, Stephen Windsor, Jr. came to my home and gave me and my wife the Allegiance Insurance policy (form HM-7) which has been the policy attached to all the pleadings by both parties for almost four years. This policy defines as an insur[ed] a person performing a domestic duty that relates to the insureds premises . . . . [¶] . . . I specifically asked Stephen Windsor, Jr. at the time he gave me the Allegiance homeowners insurance policy, a few days after my sons death, if this policy had been in effect in 1994 at the time of my sons death. [¶] . . . Stephen Windsor, Jr. specifically said that he had received the Allegiance Insurance policy that he gave to me and my wife . . . from Allegiance Insurance Company several years prior to the incident involving my sons death and that he had kept the policy in a special file at his home. [¶] . . . Stephen Windsor, Jr. further stated that when I requested a copy of the policy he went to the file in his home to retrieve the policy he had given and that he had had possession and custody of this policy at his home for several years."
In their reply brief, defendants contended that the HM-7 policy, which they claimed was not in effect until after the accident, was broader than the ML-7 policy in that the HM-7 policy covered "persons in the course of performing domestic duties that relate to the insured premises," regardless of whether they were "domestic employees." The ML-7 policy, on the other hand, covered persons "while performing duties as a domestic employee of an insured." Defendants explained below that "[t]he clear intent of the deletion of the word `employee under the new and not yet applicable policy (HM-7) was to benefit homeowners by covering not only `employees but also their independent contractors (i.e. housekeepers, nannies, gardeners, etc.)[.]"
The trial court granted defendants second summary judgment motion, finding as a matter of law that Halmos was not a covered insured under the ML-7 policy, which was the applicable policy. The court explained its reasoning as follows: (1) the policy in effect at the time of the loss was the ML-7 policy; (2) under the ML-7 policy, "insured" includes "any person while performing duties as a domestic employee of an insured"; (3) under the ML-7 policy, a "domestic employee" is "a person employed by an insured to perform duties in connection with the maintenance or use of the insured premises"; and (4) "Halmos, a bo[a]rder in Eva Windsors house, was asked for the first time by Eva Windsor to watch plaintiff[s] son. Based on these undisputed facts, Halmos was not a `domestic employee of Eva Windsor and therefore, is not covered under the insurance policy."
The court equitably apportioned the policy proceeds by allocating 6/7 to Eva and 1/7 to Evas son, stating: "In balancing the equities in this case, the Court finds that the insurance proceeds should be allocated on a pro rata basis between Eva Windsor and her son Stephen based upon their proportionate liability. If the Court were to allocate the insurance proceeds to Stephens share of the judgment first, then inequity would result.
"A. It would discourage homeowners from naming their adult children living at home as additional insureds on their homeowners policies for fear of having their assets (saved for old age) substantially depleted, in cases where the judgment exceeds policy limits.
"B. It would leave Eva Windsor substantially impecunious at an age where she has extremely limited earning capacity, while removing the burden from her son, who has a full ability to earn.
"C. The settlement agreement reached between Stephen and plaintiffs in the bankruptcy proceeding did not take into consideration the rights of Eva Windsor, who was not a party to the agreement.
"D. It would unfairly tax the community interest of Eva Windsors husband Stephen, who was found not liable by the jury, since a greater portion of the proceeds from the sale of the Windsor home would be applied to satisfy Eva Windsors judgment.
"The jury apportioned 10% liability to Stephen Windsor [Evas son] ($77,250.00), and 60% to Eva Windsor ($343,500.00). Therefore, the insurance proceeds are allocated in the following manner: (1) $43,578.00 to Stephen Windsor [Evas son] (1/7 of the insurance proceeds) and (2) $261,468.00 to Eva Windsor (6/7 of the insurance proceeds)."
The $77,250 figure represents Evas sons 10 percent share of noneconomic damages ($532,500 x .10 = $ 53,250) plus his joint and several liability for $24,000 in economic damages ($53,250 + $24,000 = $77,250).
The $343,500 figure represents Evas 60 percent share of noneconomic damages ($532,500 x .60 = $319,500) plus her joint and several liability for $24,000 in economic damages ($319,500 + $24,000 = $343,500).
The $43,578 figure represents Evas sons 1/7 share of the policy payment ($305,046 x 1/7 = $43,578).
The $261,468 figure represents Evas 6/7 share of the policy payment ($305,046 x 6/7 = $261,468).
On January 25, 2002, the court entered judgment granting summary judgment for the defendants, allocating the insurance proceeds as stated above, and amending the previously entered judgment in the wrongful death action to conform to the January 25, 2002, judgment. In addition, the court released the blocked funds (the proceeds from the sale of Evas home) as follows: $78,603.43 to plaintiffs, with the balance to Eva and her husband.
The $78,603.43 award from the blocked funds, added to Evas share of the policy payment, $261,468, totals $340,071.43. This total represents Evas 60 percent share of the noneconomic damages ($319,500), plus 6/7 of the economic damages ($24,000 x 6/7 = $20,571.43). ($319,500 + $20,571.43 = $ 340,071.43.)
The court subsequently denied plaintiffs motion to correct the judgment by adding post judgment interest and increasing the amount due to plaintiffs from the blocked funds to $87,078.
Plaintiffs contend that Eva owes a total of $348,546 (plus interest) on the judgment: noneconomic damages of $319,500, economic damages of $24,000, and costs of $5,046. ($319,500 + $24,000 + $5,046 = $348,546.) Subtracting Evas share of the policy proceeds ($261,468) from $348,546, plaintiffs contend they are entitled to $87,078 (plus interest) from the blocked account. ($348,546 - $261,468 = $87,078.)
Plaintiffs have appealed from the January 25, 2002, judgment and related orders, contending summary judgment should not have been granted both as a matter of law and due to the existence of a triable issue of material fact. In addition, plaintiffs contend the court abused its discretion in apportioning the insurance proceeds and erred in calculating the judgment and denying post judgment interest.
DISCUSSION
I
The ML-7 Policy Applies to this Loss
Summary judgment is appropriate only where no material issue of fact exists or where the record establishes as a matter of law that a cause of action asserted against a party cannot prevail. After examining the facts before the trial judge on a summary judgment motion, an appellate court independently determines their effect as a matter of law. (Nicholson v. Lucas (1994) 21 Cal.App.4th 1657, 1664.)
In granting defendants motion for summary judgment, the trial court concluded, as a matter of law, that the ML-7 policy applied on the date of loss. On appeal, plaintiffs contend a triable issue of material fact exists as to whether the ML-7 or the HM-7 policy was in effect on the date of loss. The record, however, fails to support this contention.
According to Sgro, Allegiances claims manager, Allegiance first issued the ML-7 policy to Eva and her husband on November 12, 1989. Sgro further attested that the ML-7 policy "did not expire until the renewal policy, HM-7[,] took effect on November 12, 1994. That policy, No. ML-7, was and is an `occurrence policy, meaning it covered all incidents `occurring during the policy period. [¶] . . . This incident occurred on October 5, 1994. Therefore, policy No. ML-7 was the policy which was applicable to this incident and, therefore, this loss."
In addition to Sgros declaration, the insurance renewal declaration page for the 1994-1995 term confirmed that the HM-7 policy did not take effect until November 12, 1994, which was after the date of the accident.
In opposing the summary judgment motion, plaintiffs failed to contradict or challenge defendants evidence that the ML-7 policy, and not the HM-7 policy, was in effect on the date of loss. Instead, plaintiff Joseph Perera submitted a declaration describing how Evas husband, before the commencement of any litigation, had told plaintiffs that the HM-7 policy was in effect at the time of the loss. The fact that Joseph made such a statement, however, shows only that his state of mind was that the HM-7 policy was in effect. His state of mind had no operative effect on which policy was in force at the time of loss. Josephs statement failed to change or contradict the fact that according to the insurance renewal declaration page, the HM-7 policy did not take effect until November 12, 1994. (See Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197 ["An issue of fact can only be created by a conflict of evidence. It is not created by `speculation, conjecture, imagination or guess work. [Citation.] Further, an issue of fact is not raised by `cryptic, broadly phrased, and conclusory assertions [citation], or mere possibilities [citation]."].)
Plaintiffs claim in their opening brief that the HM-7 policy was "attached to all pleadings by both parties, including the respondents original summary judgment motion. In fact, all motions and pleadings filed by both parties prior to the respondents second summary judgment hearing on September 24, 2001[,] have attached the form HM-7 Allegiance Insurance policy as the applicable homeowners insurance policy in effect at the time of the underlying loss."
As defendants point out in their respondents brief, however, the only pleading to which the HM-7 policy was attached as an exhibit is the declaratory relief complaint filed by plaintiffs on July 7, 1999. Defendants state that "[t]he issue did not arise — and the policy was never addressed — until plaintiffs claimed that Mr. Halmos was covered under that policy." As far as we are aware, defendants have filed no pleading that would preclude them from contending on summary judgment that the ML-7 policy applies to the loss in question.
We conclude, as a matter of law, that the trial court correctly determined that the ML-7 policy was in effect at the time of the loss.
II
Halmos Was Not a Covered Insured
Plaintiffs contend that Halmos was a covered insured as a matter of law under either the ML-7 or the HM-7 policy. Given our determination that the ML-7 policy was in effect at the time of loss, we will limit our discussion to that policy.
"While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply. [Citation.]" (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264.) "[I]nterpretation of an insurance policy is a question of law." (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18.)
Paragraph 6(b)(2) of the ML-7 policy defines "insured" to include "any person while performing duties as a domestic employee of an insured." The policy defines "domestic employee" to mean "a person employed by an insured to perform duties in connection with the maintenance or use of the insured premises. This includes persons who perform household or domestic services or duties of a similar nature elsewhere for an insured. This does not include persons while performing duties in connection with an insureds business." We do not find these provisions to be ambiguous.
Based on the undisputed facts of this case, we conclude, as a matter of law, that Halmos was not an insured because he was not a domestic employee and, apart from the one tragic occasion before us, did not perform household or domestic services. Apart from the single instance of being asked to watch plaintiffs child while in the back yard, Halmos had no domestic duties and was never asked or paid by Eva or her husband to perform domestic duties. The date of the tragic accident was the first and only time that Eva had asked Halmos to babysit anyone, including plaintiffs son. That once instance was insufficient, as a matter of law, to make Halmos a domestic employee under the policy.
Our determination that Halmos was not a domestic employee is consistent with workers compensation law. Given that until the date of the accident, Halmos was never asked to provide and never provided babysitting services, he would not be an employee, as a matter of law, under Labor Code section 3352, subdivision (h), for workers compensation purposes.
Labor Code section 3357 creates a statutory presumption that "[a]ny person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is . . . an employee." As we will explain, Halmos was expressly excluded as an employee based on the following statutes.
Under Labor Code section 3351, subdivision (d), "any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant" is an employee, except as provided in Labor Code section 3352, subdivision (h). Labor Code section 3352, subdivision (h) excludes as an employee any residential babysitter who, among other things, worked for less than 52 hours during the 90 calendar days immediately preceding the date of injury, or earned less than $100 in wages during the 90 calendar days immediately preceding the date of injury.
We conclude, as a matter of law, that the trial court correctly found that Halmos was not a covered insured under the applicable ML-7 policy.
III
Allocation of Insurance Proceeds
Plaintiffs challenge the apportionment of the insurance proceeds (6/7 to Eva and 1/7 to Evas son), contending the court should have allowed them to satisfy fully their judgment against Evas son. While plaintiffs contend the apportionment constituted a violation of the bankruptcy stipulation, there was no such violation. The stipulation in the bankruptcy proceeding was simply a conditional agreement that if Evas sons obligation was fully satisfied from the insurance proceeds, plaintiffs would dismiss their complaint in bankruptcy.
Plaintiffs state that in making the 6/7, 1/7 apportionment, "the trial court intentionally deprived the appellants of their rights and ability to collect the full amounts of their judgments against [Evas son] and Eva Windsor." The record refutes this allegation. The trial court equitably apportioned the proceeds in a fair and rational manner, as clearly explained by its written order. The record utterly fails to support plaintiffs contention that the trial court abused its discretion in apportioning the proceeds 6/7 to Eva and 1/7 to Evas son.
IV
The Motion to Correct the Judgment
Plaintiffs contention that the trial court erred in calculating the amount of the judgment and in denying post judgment interest has merit.
First, the figures presented by defendant and accepted by the trial court were erroneous in that plaintiffs were deprived of their full $24,000 economic damages award, for which there is joint and several liability. (See Witkin, Summary of Cal. Law (9th ed. 1990) Torts, § 51; Civ. Code, § 1431.2.) The amount ordered released from the blocked funds, $78,603.43, was based on the incorrect assumption that Eva should be made to pay only 6/7 of the economic damages. (See fn. 11, supra.) As Eva is jointly and severally liable for the entire $24,000 economic damages award, the amount ordered released from the blocked funds was insufficient and this error must be corrected.
Second, the original wrongful death judgment included costs of $5,046. As this amount was not included in the January 25, 2002, judgment, this error must also be corrected.
Third, the original wrongful death judgment included interest according to law. (See Code Civ. Proc., § 685.010, subd. (a) ["Interest accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied."].) As interest on the unpaid portion of the judgment was not included in the January 25, 2002, judgment, this error must also be corrected.
We reject as unsupported defendants contention that these errors were waived because they were not raised in plaintiffs separate statement filed in opposition to the summary judgment motion. For one thing, these are not issues of fact, but of law. The law provides that liability for economic damages is joint and several, and the law provides for the recovery of costs and post judgment interest. All of those items were awarded in the original judgment, and the calculation of the correct dollar amounts for those items is a clerical task. Moreover, defendants moving papers did not and could not dispute the inclusion of those items in the original judgment.
We leave it to the trial court on remand to correct these errors and enter a corrected judgment.
DISPOSITION
On remand, the trial court is to amend the amount of the judgment as explained in the opinion to result in a full recovery of economic damages, costs, and post judgment interest. As amended, the judgment is affirmed. Plaintiffs are awarded costs on appeal.
We concur: SPENCER, P.J., MALLANO, J.