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TODD P. EMANUEL, ESQ.
EMANUEL LAW GROUP
702 Marshall Street, Suite 400
Redwood City, CA 94063
Tel: (650) 369-8900
Fax: (650) 369-4228
Email: todd@TEinjurylaw.com
DAVID J. COOK, ESQ. (State Bar # 060859)
COOK COLLECTION ATTORNEYS
A PROFESSIONAL LAW CORPORATION
165 Fell Street, San Francisco, CA 94102-5106
P.O. Box 270, San Francisco, CA 94104-0270
Tel.: (415) 989-4730
Fax: (415) 989-0491
Email: Cook@SqueezeBloodFromTurnip.com
File No. 57,039
Attorneys for Plaintiff
IDA CHRISTINA CRUZ FUA
ELECTRONICALLY
FILED
Superior Court of Caiffornia,
County of San Francisco
11/16/2015
Clerk of the Court
BY-2JUDITH NUNEZ
Deputy Clerk
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
IDA CHRISTINA CRUZ FUA,
Plaintiff,
vs.
JOEL ENRIQUE ANDINO SANCHEZ,
an individual; CAROLINE MILLER, an
individual, TAXI EQUIPMENT
LEASING LLC, a Limited Liability
Company; SAN FRANCISCO
INDEPENDENT TAXI ASSOCIATION,
a Corporation, YELLOW CAB
COOPERATIVE, INC., a Corporation;
and DOES | through 50, Inclusive,
Defendants.
eee
CASE NO. CGC-11-515542
LETTER BRIEF IN SUPPORT OF
APPLICATION FOR RIGHT TO ATTACH
ORDER; TEMPORARY PROTECTIVE
ORDER; ORDER FOR ISSUANCE OF WRIT
OF ATTACHMENT, EX PARTE
Date: November 10, 2015
Time: 9:30 a.m.
Dept.: 608
Judge: Garrett Wong
Attached hereto marked Exhibit “A” is a true and correct copy of the LETTER BRIEF
submitted to Judge Garrett Wong on November 13, 2015 via hand delivery in support of Plaintiff
IDA CHRISTINA CRUZ FUA’s APPLICATION FOR RIGHT TO ATTACH ORDER,
1
LETTER BRIEF IN SUPPORT OF RIGHT TO ATTACH ORDER; TEMPORARY PROTECTIVE ORDER;
ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT, EX PARTEConan DA HW eB wWwN =
= 6
12
ATTACHMENT, EX PARTE
DATED: November 13, 2015
F:\USERS\DJCNEW\yellow cab. letter brief
2
LETTER BRIEF IN SUPPORT OF RIGHT TO ATTACH ORDER; TEMPORARY PROTECTIVE ORDER;
ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT, EX PARTEEXHIBIT “A”COOK®COLLECTION ATTORNEYS®, PLC
ATTORNEYS AT LAW
165 FELL STREET TEL: (415) 989-4730
SAN FRANCISCO, CA 94102-5106 FAX: (415) 989-0491
MAIL:
P.O. BOX 270
November 13, 2015 SAN FRANCISCO, CA 94104-0270
Via Hand Delivery
THE HONORABLE GARRETT L. WONG
Judge of the SAN FRANCISCO COUNTY SUPERIOR COURT
UNLIMITED CIVIL JURISDICTION
400 McAllister Street, Dept. 608
San Francisco, CA 94102
Re: IDA CHRISTINA CRUZ FUA vs. JOEL ENRIQUE ANDINO SANCHEZ, an individual;
CAROLINE MILLER, an individual; TAXI EQUIPMENT LEASING LLC, a Limited
Liability Company; SAN FRANCISCO INDEPENDENT TAXI ASSOCIATION, a
Corporation; YELLOW CAB COOPERATIVE, INC., a Corporation; et al.
San Francisco County Superior Court Case No. CGC-11-515542
Our File No. 57,039
Dear Judge Wong:
I. SUMMARY OF ISSUES.
Plaintiff seeks the award of prejudgment interest as allowed under Civ.C. § 3287(a). These are
the calculations:
lL. The annual rate of interest is 7%.
2. The daily rate of interest for the award against SANCHEZ and YCC is $1,546.75.
3. ‘The daily rate of interest for the award against TEL is $2.876.
4. Assuming the entry of judgment per the agreement of counsel on October 30,
2015, the accrued prejudgment interest bone by YCC is $197,984.00. ($1,546.75
x 128 days = $197,984.00) The total of principal and interest: $8,065,197.15+
$197,984.00 = $8,263,181.15.
5. Assuming the date of entry of judgment of October 30, 2015 for TEL, the amount
of the accrued interest is $368.13. ($2.876 x 128 days = $368.13) The total of
principal and interest: $15,000 + $368.13 = $15,368.13.
6. Assuming the date of entry of judgment for SANCHEZ on November 16, 2015,
the accrued interest is the sum of $224,278.75 ($1,546.75 x 145 days =
$224,278.75). The total of principal and interest: $8,065,197.15 + $224,278.75 =
$8,289,475.90.
Page | of 6Il. THE START DATE FOR INTEREST: JUNE 24, 2015.
The start date for the accrual of interest is June 24, 2015 which is the date of the entry of the
Special Verdict. This is the date when the Jury fixed the damages and made them “fixed and
ascertainable.”
Il. ELEMENT OF DAMAGES.
Civil Code section 3287, subdivision (a) mandates prejudgment interest be imposed if the
statutory requirements are met. (See Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907,
935. In a case where Civil Code section 3287, subdivision (a) is applicable, prejudgment interest
is mandatory. N. Oakland Med. Clinic v. Rogers, 65 Cal. App. 4th 824, 828 (1998)
That is, prejudgment interest is mandatory on the date when the damages are certain or
ascertainable by calculation. (Civ.Code, § 3287, subd. (a); Sagadin v. Ripper (1985) 175
Cal.App.3d 1141, 1174-1175.
Prejudgment interest is an element of damages. See Great W. Drywall, Inc. v. Roel Const. Co.,
166 Cal. App. 4th 761, 767-68 (2008), in which the court stated as follows:
Prejudgment interest on liquidated damages is an element of compensatory
damages. [Citation omitted] “The policy underlying authorization of an award of
prejudgment interest is to compensate the injured party-to make that party whole
for the accrual of wealth which could have been produced during the period of
loss.” [Citation omitted] “[I]n situations where the defendant could have timely
paid [a certain] amount and has thus deprived the plaintiff of the economic benefit
of those funds, the defendant should therefore compensate with appropriate
interest.” [citation omitted] “It has long been settled that [Civil Code] section
3287 should be broadly interpreted to provide just compensation to the injured
party for loss of use of money during the prejudgment period.” [Citation omitted]
Bullock v. Philip Morris USA, Inc., 198 Cal. App. 4th 543, 573, (2011) likewise states as
follows:
Civil Code section 3287, subdivision (a) provides that a party may recover prejudgment
interest on an amount awarded as damages from the date that the amount was both (1)
due and owing and (2) certain or capable of being made certain by calculation . [citation
omitted] The primary purpose of an award of prejudgment interest is to compensate the
plaintiff for the loss of use of money during the period before the entry of judgment, in
order to make the plaintiff whole. [citation omitted]. Absent a statutory provision
specifically governing the type of claim at issue, the prejudgment interest rate is 7 percent
under article XV, section | of the California Constitution. [citation omitted]
Plaintiff is entitled to prejudgment interest as an element of damages. The jury fixed the amount
of her damages as of June 24, 2015, and therefore “fixed and ascertained.”
Page 2 of 6IV. THE START DATE IS THE DATE OF THE SPECIAL VERDICT.
In Bullock v. Philip Morris USA, Inc., supra at 573-74, the court stated as follows:
Damages are certain or capable of being made certain by calculation, or
ascertainable, for purposes of Civil Code section 3287, subdivision (a) if the
defendant actually knows the amount of damages or could compute that amount
from readily available information. ......
Damages determined by a verdict are made certain as of the date that the
verdict is entered, so prejudgment interest begins to accrue on that date.
[Citation Omitted] A legal dispute as to the plaintiff's entitlement to the amount
awarded does not render the damages uncertain. [citation omitted] Rule 3.1802 of
the California Rules of Court properly requires the clerk to “include in the
judgment any interest awarded by the court and the interest accrued since the
entry of the verdict.” (Emphasis added)
Bullock v. Philip Morris USA, Inc. cites Holdgrafer v. Unocal Corp., 160 Cal. App. 4th
907, 935, (2008), in which the court stated as follows:
Moreover, we agree with the trial court that former rule 875 is consistent with
Civil Code section 3287, which provides for the payment of prejudgment interest
from the date they are certain or capable of being made certain, e.g., the date the
jury's verdict is entered . . . ..” (Emphasis added)
V. PELLEGRINI v. WEISS DOES NOT COMPEL A DIFFERENT RESULT.
YCC cited Pellegrini v. Weiss, 165 Cal.App.4th 515 (2008) (‘Pellegrini’) for the general
proposition that a successful tort plaintiff is not entitled to interest from the date of the entry of
the verdict to the date of the entry of the judgment. In Pellegrini, plaintiff brought an action
against an investor for breach of a joint venture agreement for the purchase and development of
real property and for breach of fiduciary duty. (Page 523) The court found for plaintiff in the
amount of $300,000 in damages.
“Weiss asserts the trial court erred in setting the date for the running of interest on the damages
award at July 29, 2005, the date the trial court considered and ruled on the equitable claims and
confirmed the jury verdict. Weiss submits the date for the running of interest should instead be
January 13, 2006, the date judgment was finally entered.” (Page 532)
Weiss argued that interest commences to accrue on the date of entry thereof under C.C.P. §
685.020(a). The court noted that under CRC 3.1802, that the court must include in the judgment
any interest awarded by the clerk and interest accrued since the entry of judgment. (Page 532).
(Emphasis added)
Page 3 of 6The court interpreted CRC 3.1802 as directing the clerk to calculate the continuation of any
prejudgment interest that may have been awarded from the date of the verdict through the date
of the judgment. The court rejected “post-judgment interest” that would accrue between the
verdict and the judgment because post-judgment interest accrues based upon C.C.P. § 685.020,
i.e.,. the date of entry of judgment. (Page 532). Contrary to YCC's claims, Pelligrini did not
exclude, bar or ban the accrual of pre-judgment interest from the date of verdict to the date of
judgment.
Whether interest should run pre judgment is determined by Civ.C. § 3287(a), and not post
judgment, such as a C.C.P. §685.110. Nothing in Pellegrini construes, nor applied, Civil Code
§3287, subdivision (a), the prejudgment interest statute. C.C.P. §685.020 is part of the
Enforcement of Judgments Law has nothing to do with prejudgment interest. (§ 685.110
(“Nothing in this chapter affects the law relating to prejudgment interest.”]; see Redevelopment
Agency v. Gilmore (1985) 38 Cal.3d 790, 795, fn. 2.) see also 8 Witkin, Cal. Procedure (Sth
ed.2008) § 42, p. 83 [“The provisions of C.C.P. 685.010 et seq. do not affect the law relating to
prejudgment interest”].) The Pelligrini court did not address the textual analysis of CRC 3.1802
which necessarily obligates the clerk to include in the pre judgment any interest awarded by the
court from the date of entry of the verdict. The court rather addressed the fact that CRC 3.1802
does not authorize the clerk to insert post-judgment interest, which is at 10%, between the
verdict and judgment under C.C.P. § 685.020, as opposed to Civ.C. § 3287(a).
The measure of damages due Plaintiff is under Civil Code §3287(a) Accordingly, Pelligrini
does not bar this court from entry of prejudgment interest under Civ.C. § 3287(a).
VI. PLAINTIFF HAS STANDING TO CLAIM INTEREST
UNDER THE DOCTRINE OF “VESTING.”
At oral argument on November 10, 2015, YCC argued that Plaintiff must demonstrate that
Plaintiff is entitled to recover interest “which is vested in the person upon a particular day.” YCC
does not provide the court with any analysis of the specific meaning of “vested in the person”
one way or another. The federal and California appellate courts have extensively treated
"vesting." See Evanston Ins. Co. v. OEA, Inc., 566 F.3d 915, 921 (9th Cir. 2009), in which the
court stated as follows:
"California cases uniformly have interpreted the “vesting” requirement as being satisfied
at the time that the amount of damages become certain or capable of being made Certain,
not the time liability to pay those amounts is determined. [citations omitted] "
Vesting is depending upon the damages being determined, fixed and ascertained. See Diaz v.
Kubler Corp., 785 F.3d 1326, 1329 (9th Cir. 2015), in which the court stated as follows:
",.. California cases uniformly have interpreted the ‘vesting’ requirement as being
satisfied at the time that the amount of damages become certain or capable of being made
Page 4 of 6certain, not the time liability to pay those amounts is determined.”
See also, Evanston Ins. Co. v. OFA, Inc., 566 F.3d 915, 921 (9th Cir. 2009), in which the court
stated as follows:
“California cases uniformly have interpreted the “vesting” requirement as being satisfied
at the time that the amount of damages become certain or capable of being made certain,
not the time liability to pay those amounts is determined.”
The court concluded as follows:
"It is clear that the “vesting” provision as interpreted by the California courts and our
opinion in Highlands relying on California law, requires that the amount must be vested,
not that the legal entitlement to that amount be vested."
A defendant's denial of liability does make damages uncertain for purposes of Civ.C. § 3287.
See e.g., Stein vs. Southern Cal. Edison Co., 7 Cal. App. 4th 565, 572.
VII. CONCLUSION.
Plaintiff is entitled to an award of prejudgment interest as follows:
Yellow Cab Cooperative, Inc.
Total Accrued interest as of October 30, 2015: $197,984.00
Principal amount of verdict: $8,065,197.15
Total: $8,263,181.15
Sanchez
Total Accrued interest as of November 16, 2015: $224,278.75
Principal amount of verdict: 065,197.15
Total: $8,289,475.90
Taxi Equipment Leasing, LLC
Total Accrued interest as of October 30, 2015 $368.13
Principal amount of verdict: $15,000.00
$15,368.13
faintift prays that the gourt enter judgment, which includes prejudgment interest, as calculated
above.
Page 5 of 6cc:
D. Douglas Shureen, Esq.
MCMILLIAN & SHUREEN LLP
Email: doug.shureen@memillanshureen.com
Attorneys for Defendant Joel Enrique Andino Sanchez
Colin C. Monro, Esq.
Christopher J. Weber
CARLSON CALLADINE & PETERSON, LLP
Email: cmunro@ccplaw.com
Attorneys for Defendants Yellow Cab Cooperative, Inc.,
Taxi Equipment Leasing, LLC., and Caroline Miller
Robert S. Aaron
Timothy C. Wilson
AARON & WILSON, LLP
Email: rsaaron@aaron-wilson.com
Co-Counsel for Defendants
Yellow Cab Cooperative, Inc.,
Taxi Equipment Leasing, LLC., Taxi Property Company, Inc.,
Wolley, LLC, James Gillespie, Hal Mellegard, Nick Olsen,
Pamela Martinez, Richard Weiner, and Steven Reimers
Gary M. Kaplan
FARELLA BRAUN + MARTEL LLP
Russ Building
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
Fax (415) 954-4480
Email: gkaplan@fbm.com
Attorneys for Defendants Yellow Cab Cooperative, Inc.,
FAUSERS\DJCNEW\LETTER \yellow cab.letterinterestbrief.doc
Page 6 of 6P F OF Cc
D. Douglas Shureen, Esq.
MCMILLIAN & SHUREEN LLP
50 Santa Rosa Avenue, Suite 200
Santa Rosa, CA 95404
Fax: (707) 576-7955
Email: doug.shureen@memillanshureen.com
Attorneys for Defendant Joel Enrique Andino Sanchez
Colin C. Monro, Esq.
Christopher J. Weber
CARLSON CALLADINE & PETERSON, LLP
353 Sacramento Street, 16 Floor
San Francisco, CA 94111
Fax: (415) 391-3898
Email: cmunro@ccplaw.com
Attorneys for Defendants Yellow Cab Cooperative, Inc.,
Taxi Equipment Leasing, LLC., and Caroline Miller
Robert S. Aaron
Timothy C. Wilson
AARON & WILSON, LLP
150 Post Street, Suite 400
San Francisco, CA 94108
Fax: (415) 438-7808
Email: rsaaron@aaron-wilson.com
Co-Counsel for Defendants.
Yellow Cab Cooperative, Inc.,
Taxi Equipment Leasing, LLC., Taxi Property Company, Inc.,
Wolley, LLC, James Gillespie, Hal Mellegard, Nick Olsen,
Pamela Martinez, Richard Weiner, and Steven Reimers
I declare:
I am employed in the County of San Francisco, California. I am over the age of eighteen
(18) years and not a party to the within cause. My business address is 165 Fell Street, San
Francisco, CA 94102. On the date set forth below, I served the attached:
LETTER BRIEF IN SUPPORT OF APPLICATION FOR RIGHT TO ATTACH ORDER,
TEMPORARY PROTECTIVE ORDER; ORDER FOR ISSUANCE OF WRIT OF
ATTACHMENT, EX PARTE
on the above-named person(s) by:
XXX_ (BY EMAIL) to the email addresses lj
David J. Cook
Preview
CoC mnt DN nH kB WN = = 5 TODD P. EMANUEL, ESQ. EMANUEL LAW GROUP 702 Marshall Street, Suite 400 Redwood City, CA 94063 Tel: (650) 369-8900 Fax: (650) 369-4228 Email: todd@TEinjurylaw.com DAVID J. COOK, ESQ. (State Bar # 060859) COOK COLLECTION ATTORNEYS A PROFESSIONAL LAW CORPORATION 165 Fell Street, San Francisco, CA 94102-5106 P.O. Box 270, San Francisco, CA 94104-0270 Tel.: (415) 989-4730 Fax: (415) 989-0491 Email: Cook@SqueezeBloodFromTurnip.com File No. 57,039 Attorneys for Plaintiff IDA CHRISTINA CRUZ FUA ELECTRONICALLY FILED Superior Court of Caiffornia, County of San Francisco 11/16/2015 Clerk of the Court BY-2JUDITH NUNEZ Deputy Clerk SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION IDA CHRISTINA CRUZ FUA, Plaintiff, vs. JOEL ENRIQUE ANDINO SANCHEZ, an individual; CAROLINE MILLER, an individual, TAXI EQUIPMENT LEASING LLC, a Limited Liability Company; SAN FRANCISCO INDEPENDENT TAXI ASSOCIATION, a Corporation, YELLOW CAB COOPERATIVE, INC., a Corporation; and DOES | through 50, Inclusive, Defendants. eee CASE NO. CGC-11-515542 LETTER BRIEF IN SUPPORT OF APPLICATION FOR RIGHT TO ATTACH ORDER; TEMPORARY PROTECTIVE ORDER; ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT, EX PARTE Date: November 10, 2015 Time: 9:30 a.m. Dept.: 608 Judge: Garrett Wong Attached hereto marked Exhibit “A” is a true and correct copy of the LETTER BRIEF submitted to Judge Garrett Wong on November 13, 2015 via hand delivery in support of Plaintiff IDA CHRISTINA CRUZ FUA’s APPLICATION FOR RIGHT TO ATTACH ORDER, 1 LETTER BRIEF IN SUPPORT OF RIGHT TO ATTACH ORDER; TEMPORARY PROTECTIVE ORDER; ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT, EX PARTEConan DA HW eB wWwN = = 6 12 ATTACHMENT, EX PARTE DATED: November 13, 2015 F:\USERS\DJCNEW\yellow cab. letter brief 2 LETTER BRIEF IN SUPPORT OF RIGHT TO ATTACH ORDER; TEMPORARY PROTECTIVE ORDER; ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT, EX PARTEEXHIBIT “A”COOK®COLLECTION ATTORNEYS®, PLC ATTORNEYS AT LAW 165 FELL STREET TEL: (415) 989-4730 SAN FRANCISCO, CA 94102-5106 FAX: (415) 989-0491 MAIL: P.O. BOX 270 November 13, 2015 SAN FRANCISCO, CA 94104-0270 Via Hand Delivery THE HONORABLE GARRETT L. WONG Judge of the SAN FRANCISCO COUNTY SUPERIOR COURT UNLIMITED CIVIL JURISDICTION 400 McAllister Street, Dept. 608 San Francisco, CA 94102 Re: IDA CHRISTINA CRUZ FUA vs. JOEL ENRIQUE ANDINO SANCHEZ, an individual; CAROLINE MILLER, an individual; TAXI EQUIPMENT LEASING LLC, a Limited Liability Company; SAN FRANCISCO INDEPENDENT TAXI ASSOCIATION, a Corporation; YELLOW CAB COOPERATIVE, INC., a Corporation; et al. San Francisco County Superior Court Case No. CGC-11-515542 Our File No. 57,039 Dear Judge Wong: I. SUMMARY OF ISSUES. Plaintiff seeks the award of prejudgment interest as allowed under Civ.C. § 3287(a). These are the calculations: lL. The annual rate of interest is 7%. 2. The daily rate of interest for the award against SANCHEZ and YCC is $1,546.75. 3. ‘The daily rate of interest for the award against TEL is $2.876. 4. Assuming the entry of judgment per the agreement of counsel on October 30, 2015, the accrued prejudgment interest bone by YCC is $197,984.00. ($1,546.75 x 128 days = $197,984.00) The total of principal and interest: $8,065,197.15+ $197,984.00 = $8,263,181.15. 5. Assuming the date of entry of judgment of October 30, 2015 for TEL, the amount of the accrued interest is $368.13. ($2.876 x 128 days = $368.13) The total of principal and interest: $15,000 + $368.13 = $15,368.13. 6. Assuming the date of entry of judgment for SANCHEZ on November 16, 2015, the accrued interest is the sum of $224,278.75 ($1,546.75 x 145 days = $224,278.75). The total of principal and interest: $8,065,197.15 + $224,278.75 = $8,289,475.90. Page | of 6Il. THE START DATE FOR INTEREST: JUNE 24, 2015. The start date for the accrual of interest is June 24, 2015 which is the date of the entry of the Special Verdict. This is the date when the Jury fixed the damages and made them “fixed and ascertainable.” Il. ELEMENT OF DAMAGES. Civil Code section 3287, subdivision (a) mandates prejudgment interest be imposed if the statutory requirements are met. (See Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 935. In a case where Civil Code section 3287, subdivision (a) is applicable, prejudgment interest is mandatory. N. Oakland Med. Clinic v. Rogers, 65 Cal. App. 4th 824, 828 (1998) That is, prejudgment interest is mandatory on the date when the damages are certain or ascertainable by calculation. (Civ.Code, § 3287, subd. (a); Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 1174-1175. Prejudgment interest is an element of damages. See Great W. Drywall, Inc. v. Roel Const. Co., 166 Cal. App. 4th 761, 767-68 (2008), in which the court stated as follows: Prejudgment interest on liquidated damages is an element of compensatory damages. [Citation omitted] “The policy underlying authorization of an award of prejudgment interest is to compensate the injured party-to make that party whole for the accrual of wealth which could have been produced during the period of loss.” [Citation omitted] “[I]n situations where the defendant could have timely paid [a certain] amount and has thus deprived the plaintiff of the economic benefit of those funds, the defendant should therefore compensate with appropriate interest.” [citation omitted] “It has long been settled that [Civil Code] section 3287 should be broadly interpreted to provide just compensation to the injured party for loss of use of money during the prejudgment period.” [Citation omitted] Bullock v. Philip Morris USA, Inc., 198 Cal. App. 4th 543, 573, (2011) likewise states as follows: Civil Code section 3287, subdivision (a) provides that a party may recover prejudgment interest on an amount awarded as damages from the date that the amount was both (1) due and owing and (2) certain or capable of being made certain by calculation . [citation omitted] The primary purpose of an award of prejudgment interest is to compensate the plaintiff for the loss of use of money during the period before the entry of judgment, in order to make the plaintiff whole. [citation omitted]. Absent a statutory provision specifically governing the type of claim at issue, the prejudgment interest rate is 7 percent under article XV, section | of the California Constitution. [citation omitted] Plaintiff is entitled to prejudgment interest as an element of damages. The jury fixed the amount of her damages as of June 24, 2015, and therefore “fixed and ascertained.” Page 2 of 6IV. THE START DATE IS THE DATE OF THE SPECIAL VERDICT. In Bullock v. Philip Morris USA, Inc., supra at 573-74, the court stated as follows: Damages are certain or capable of being made certain by calculation, or ascertainable, for purposes of Civil Code section 3287, subdivision (a) if the defendant actually knows the amount of damages or could compute that amount from readily available information. ...... Damages determined by a verdict are made certain as of the date that the verdict is entered, so prejudgment interest begins to accrue on that date. [Citation Omitted] A legal dispute as to the plaintiff's entitlement to the amount awarded does not render the damages uncertain. [citation omitted] Rule 3.1802 of the California Rules of Court properly requires the clerk to “include in the judgment any interest awarded by the court and the interest accrued since the entry of the verdict.” (Emphasis added) Bullock v. Philip Morris USA, Inc. cites Holdgrafer v. Unocal Corp., 160 Cal. App. 4th 907, 935, (2008), in which the court stated as follows: Moreover, we agree with the trial court that former rule 875 is consistent with Civil Code section 3287, which provides for the payment of prejudgment interest from the date they are certain or capable of being made certain, e.g., the date the jury's verdict is entered . . . ..” (Emphasis added) V. PELLEGRINI v. WEISS DOES NOT COMPEL A DIFFERENT RESULT. YCC cited Pellegrini v. Weiss, 165 Cal.App.4th 515 (2008) (‘Pellegrini’) for the general proposition that a successful tort plaintiff is not entitled to interest from the date of the entry of the verdict to the date of the entry of the judgment. In Pellegrini, plaintiff brought an action against an investor for breach of a joint venture agreement for the purchase and development of real property and for breach of fiduciary duty. (Page 523) The court found for plaintiff in the amount of $300,000 in damages. “Weiss asserts the trial court erred in setting the date for the running of interest on the damages award at July 29, 2005, the date the trial court considered and ruled on the equitable claims and confirmed the jury verdict. Weiss submits the date for the running of interest should instead be January 13, 2006, the date judgment was finally entered.” (Page 532) Weiss argued that interest commences to accrue on the date of entry thereof under C.C.P. § 685.020(a). The court noted that under CRC 3.1802, that the court must include in the judgment any interest awarded by the clerk and interest accrued since the entry of judgment. (Page 532). (Emphasis added) Page 3 of 6The court interpreted CRC 3.1802 as directing the clerk to calculate the continuation of any prejudgment interest that may have been awarded from the date of the verdict through the date of the judgment. The court rejected “post-judgment interest” that would accrue between the verdict and the judgment because post-judgment interest accrues based upon C.C.P. § 685.020, i.e.,. the date of entry of judgment. (Page 532). Contrary to YCC's claims, Pelligrini did not exclude, bar or ban the accrual of pre-judgment interest from the date of verdict to the date of judgment. Whether interest should run pre judgment is determined by Civ.C. § 3287(a), and not post judgment, such as a C.C.P. §685.110. Nothing in Pellegrini construes, nor applied, Civil Code §3287, subdivision (a), the prejudgment interest statute. C.C.P. §685.020 is part of the Enforcement of Judgments Law has nothing to do with prejudgment interest. (§ 685.110 (“Nothing in this chapter affects the law relating to prejudgment interest.”]; see Redevelopment Agency v. Gilmore (1985) 38 Cal.3d 790, 795, fn. 2.) see also 8 Witkin, Cal. Procedure (Sth ed.2008) § 42, p. 83 [“The provisions of C.C.P. 685.010 et seq. do not affect the law relating to prejudgment interest”].) The Pelligrini court did not address the textual analysis of CRC 3.1802 which necessarily obligates the clerk to include in the pre judgment any interest awarded by the court from the date of entry of the verdict. The court rather addressed the fact that CRC 3.1802 does not authorize the clerk to insert post-judgment interest, which is at 10%, between the verdict and judgment under C.C.P. § 685.020, as opposed to Civ.C. § 3287(a). The measure of damages due Plaintiff is under Civil Code §3287(a) Accordingly, Pelligrini does not bar this court from entry of prejudgment interest under Civ.C. § 3287(a). VI. PLAINTIFF HAS STANDING TO CLAIM INTEREST UNDER THE DOCTRINE OF “VESTING.” At oral argument on November 10, 2015, YCC argued that Plaintiff must demonstrate that Plaintiff is entitled to recover interest “which is vested in the person upon a particular day.” YCC does not provide the court with any analysis of the specific meaning of “vested in the person” one way or another. The federal and California appellate courts have extensively treated "vesting." See Evanston Ins. Co. v. OEA, Inc., 566 F.3d 915, 921 (9th Cir. 2009), in which the court stated as follows: "California cases uniformly have interpreted the “vesting” requirement as being satisfied at the time that the amount of damages become certain or capable of being made Certain, not the time liability to pay those amounts is determined. [citations omitted] " Vesting is depending upon the damages being determined, fixed and ascertained. See Diaz v. Kubler Corp., 785 F.3d 1326, 1329 (9th Cir. 2015), in which the court stated as follows: ",.. California cases uniformly have interpreted the ‘vesting’ requirement as being satisfied at the time that the amount of damages become certain or capable of being made Page 4 of 6certain, not the time liability to pay those amounts is determined.” See also, Evanston Ins. Co. v. OFA, Inc., 566 F.3d 915, 921 (9th Cir. 2009), in which the court stated as follows: “California cases uniformly have interpreted the “vesting” requirement as being satisfied at the time that the amount of damages become certain or capable of being made certain, not the time liability to pay those amounts is determined.” The court concluded as follows: "It is clear that the “vesting” provision as interpreted by the California courts and our opinion in Highlands relying on California law, requires that the amount must be vested, not that the legal entitlement to that amount be vested." A defendant's denial of liability does make damages uncertain for purposes of Civ.C. § 3287. See e.g., Stein vs. Southern Cal. Edison Co., 7 Cal. App. 4th 565, 572. VII. CONCLUSION. Plaintiff is entitled to an award of prejudgment interest as follows: Yellow Cab Cooperative, Inc. Total Accrued interest as of October 30, 2015: $197,984.00 Principal amount of verdict: $8,065,197.15 Total: $8,263,181.15 Sanchez Total Accrued interest as of November 16, 2015: $224,278.75 Principal amount of verdict: 065,197.15 Total: $8,289,475.90 Taxi Equipment Leasing, LLC Total Accrued interest as of October 30, 2015 $368.13 Principal amount of verdict: $15,000.00 $15,368.13 faintift prays that the gourt enter judgment, which includes prejudgment interest, as calculated above. Page 5 of 6cc: D. Douglas Shureen, Esq. MCMILLIAN & SHUREEN LLP Email: doug.shureen@memillanshureen.com Attorneys for Defendant Joel Enrique Andino Sanchez Colin C. Monro, Esq. Christopher J. Weber CARLSON CALLADINE & PETERSON, LLP Email: cmunro@ccplaw.com Attorneys for Defendants Yellow Cab Cooperative, Inc., Taxi Equipment Leasing, LLC., and Caroline Miller Robert S. Aaron Timothy C. Wilson AARON & WILSON, LLP Email: rsaaron@aaron-wilson.com Co-Counsel for Defendants Yellow Cab Cooperative, Inc., Taxi Equipment Leasing, LLC., Taxi Property Company, Inc., Wolley, LLC, James Gillespie, Hal Mellegard, Nick Olsen, Pamela Martinez, Richard Weiner, and Steven Reimers Gary M. Kaplan FARELLA BRAUN + MARTEL LLP Russ Building 235 Montgomery Street, 17th Floor San Francisco, CA 94104 Fax (415) 954-4480 Email: gkaplan@fbm.com Attorneys for Defendants Yellow Cab Cooperative, Inc., FAUSERS\DJCNEW\LETTER \yellow cab.letterinterestbrief.doc Page 6 of 6P F OF Cc D. Douglas Shureen, Esq. MCMILLIAN & SHUREEN LLP 50 Santa Rosa Avenue, Suite 200 Santa Rosa, CA 95404 Fax: (707) 576-7955 Email: doug.shureen@memillanshureen.com Attorneys for Defendant Joel Enrique Andino Sanchez Colin C. Monro, Esq. Christopher J. Weber CARLSON CALLADINE & PETERSON, LLP 353 Sacramento Street, 16 Floor San Francisco, CA 94111 Fax: (415) 391-3898 Email: cmunro@ccplaw.com Attorneys for Defendants Yellow Cab Cooperative, Inc., Taxi Equipment Leasing, LLC., and Caroline Miller Robert S. Aaron Timothy C. Wilson AARON & WILSON, LLP 150 Post Street, Suite 400 San Francisco, CA 94108 Fax: (415) 438-7808 Email: rsaaron@aaron-wilson.com Co-Counsel for Defendants. Yellow Cab Cooperative, Inc., Taxi Equipment Leasing, LLC., Taxi Property Company, Inc., Wolley, LLC, James Gillespie, Hal Mellegard, Nick Olsen, Pamela Martinez, Richard Weiner, and Steven Reimers I declare: I am employed in the County of San Francisco, California. I am over the age of eighteen (18) years and not a party to the within cause. My business address is 165 Fell Street, San Francisco, CA 94102. On the date set forth below, I served the attached: LETTER BRIEF IN SUPPORT OF APPLICATION FOR RIGHT TO ATTACH ORDER, TEMPORARY PROTECTIVE ORDER; ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT, EX PARTE on the above-named person(s) by: XXX_ (BY EMAIL) to the email addresses lj David J. Cook