Preview
EUGENE FLEMATE (SBN 57011)
AARON FLEMATE (SBN 283463
LAW OFFICES OF EUGENE FLEMATE
552 North Second Street
San Jose, CA 95112
Telephone: (408) 298-7700
Facsimile: (408) 298-7715
E-mail: flemate@aol.com
MRJ1-91.P094
KARLY PETERSON (SBN 310830)
LAW OFFICE OF K. PETERSON
3938 Smith Street, Suite H
Union City, CA 94587
Telephone: (510) 838-0504
Facsimile: (510) 860-4953
E-mail: kp@kpetersonlaw.com
10 Attorneys for Plaintiff and Cross-Defendant
MERITRONICS MATERIALS, INC., and
11 Cross-Defendant RICHARD J. MALDONADO
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SANTA CLARA,
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UNLIMITED JURISDICTION
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MERITRONICS MATERIALS, INC., Case No. 17-CV-315403
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Plaintiff, NOTICE OF MOTION FOR
17 PREJUDGMENT INTEREST AND FOR
VS. ATTORNEYS FEES PURSUANT TO
18 CIVIL CODE §1717.5; DECLARATION
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HIQ SOLAR, INC., OF EUGENE FLEMATE IN SUPPORT;
Does 1-20, inclusive, AND MEMORANDUM OF POINTS AND
AUTHORITIES
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Defendants.
Date: March 27, 2020
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Time: 1:30 p.m.
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AND RELATED CROSS-ACTION Dept: 16
Honorable William J. Monahan
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25 TO Defendant HIQ SOLAR, INC., and to its attorney of record:
26 NOTICE IS HEREBY GIVEN that on March 27, 2020 at 1:30 p.m., or as soon thereafter
27 as the matter may be heard, in Department 16 of this court, located at 191 N. First Street, San
28 Jose, Ca 95113, Plaintiff MERITRONICS MATERIALS, INC., will move for an order to insert
Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5;
Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 1
prejudgment interest on the judgment to be entered in the above-entitled cause at the legal rate of
ten percent per annum from January 31, 2017 to the date of entry of the judgment, March 27,
2020, in the amount of $240,364.40.
The motion will be made on the grounds that Plaintiff is entitled to prejudgment interest
based on damages that were certain or capable of being made certain by calculation pursuant to
Civil Code § 3287(a).
Plaintiff will further move for an award of attorneys fees in the amount of $1,200.00 on
Plaintiff's Second cause of action for an Open Book Account pursuant to Civil Code § 1717.5.
These motions will be based on this notice of motion, on the declaration of Eugene
10 Flemate, on the memorandum of points and authorities served and filed herewith, on the papers
11 and records on file herein, and on such oral and documentary evidence as may be presented at the
12 hearing of the motions.
13 Dated: March 10, 2020
14 LAW OFFICES OF EUGENE FLEMATE
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16 py _Aeegink
them
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Attorneys for Plaintiff and Cross-Defendant
18 MERITRONICS MATERIALS, INC., and
Cross-Defendant RICHARD J. MALDONADO
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20 DECLARATION OF EUGENE FLEMATE IN SUPPORT
OF MOTION FOR PREJUDGMENT INTEREST AND FOR
21 ATTORNEYS FEES PURSUANT TO CIVIL CODE §1717.5
22 I, EUGENE FLEMATE, declare:
23 1 Jam an attorney at law duly licensed to practice before all the courts of the State
24 of California and am the attorney of record for Plaintiff Meritronics Materials, Inc. I make this
25 declaration in support of Meritronics Materials, Inc.’s motion to insert prejudgment interest and
26 for attorneys fees pursuant to Civil Code § 1717.5 in its judgment against HIQ Solar, Inc. The
27 information stated below is personally known to me and if called upon to testify in court, I would
28 and could competently testify as follows:
Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5;
Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 2
1 2. Plaintiff's complaint for breach of written contract, open book account; quantum
meruit; and quantum valebant was filed in 17CV315403 on September 1, 2017. In all three
causes of action, Plaintiff alleged the same amount of damages, against HIQ Solar, Inc., to wit,
$762,233.05. In all three causes of action, Plaintiff alleged a right to prejudgment interest on
said damages of $762,233.05 from January 31, 2017 until entry of judgment. See paragraphs 8,
13 and 15 of Plaintiff's complaint and item 2 of the complaint’s prayer on page 4.
3 This cause came on regularly for trial on February 5, 2020 in Department 16 of
the above-entitled court, the Honorable William J. Monahan, Judge, presiding. A jury of twelve
persons was regularly impaneled and sworn to try the action. Witnesses on the part of both
10 Plaintiff and Cross-Defendants and Defendant and Cross-Complainant were sworn and
11 examined. After hearing the evidence, the arguments of counsel, and instructions of the court,
12 the jury retired to consider their verdict, subsequently returned to court, and being called,
13 answered to their names and duly rendered their verdict in writing, in words and figures, as
14 follow:
15 WE, the jury in the above-entitled action find as follows:
16 On Meritronics Materials, Inc:’s claim for breach of written contract, we find in favor of
17 Meritronics Materials, Inc., and against HIQ Solar, Inc.
18 On Meritronics Materials, Inc.’s claim for open book account, we find in favor of
19 Meritronics Materials, Inc., and against HIQ Solar, Inc.
20 On Meritronics Materials, Inc.’s claim for quantum meruit; quantum valebant, we find in
21 favor of Meritronics Materials, Inc., and against HIQ Solar, Inc.
22 ‘We award Meritronics Materials, Inc., damages in the amount of $762,233.05.
23 4 I calculated the yearly interest owing on $762,233.05 as being ten percent of
24 $762,233.05, or $76,223.31 per year. The daily interest would be calculated by dividing
25 $76,233.31 by 365, which would equal $208.83 per day. Three years of interest from January 31,
26 2017 to January 31, 2020 is equal to $76,223.31 times three, or $228,669.92. Assuming that the
27 court will enter judgment on March 27, 2020, the daily interest for the days from February 1,
28 2020 to March 27, 2020 would be 56 days times daily interest of $208.83, or $11,694.48. To
Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5;
Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 3
summarize, the total interest due on the damages of $762,233.05 from January 31, 2017 to
March 27, 2020 would be $240,364.40. Any interest beyond March 27, 202 would be
compensated by $208.83 per additional day.
5 In Plaintiff's second cause of action for open book account, Plaintiff alleged in
paragraph 13 of the complaint that it was entitled to reasonable attorneys fees in the amount of
$1,200.00 pursuant to Civil Code § 1717.5. These same reasonable attorneys fees are also
prayed for in item 3 of the complaint’s prayer.
6 The purchase orders and invoices that were exchanged between Plaintiff and
Defendant did not have any provision for attorneys fees. The purchase orders and invoices
10 constituted a detailed statement which constituted the principal record of the transactions
11 between Plaintiff and Defendant and were kept by Plaintiff in the regular course of business.
12 Since there were no payments made by Defendant, there were no credits in favor of Defendant to
13 offset the debits set forth by Plaintiff. The jury found in favor of Plaintiff on its claim of open
14 book account.
15 7 Since there was no provision for attorneys fees between the parties, Civil Code §
16 1717.5 provides for an award of attorneys fees to the prevailing party in the lesser amount of
17 $1,200.00 or 25% of the principal amount owing which was found by the jury to be $762,233.05.
18 Thus the lessor amount would be $1,200.00.
19 I declare under penalty of perjury that the foregoing is true and correct under the laws of
20 the State of California. Executed on March 10, 2020 at San Jose, CA 95112.
21
22 tome
EUGE) FLEMATE
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24
25 MEMORANDUM OF POINTS AND AUTHORITIES
26 A. Meritronics Materials, Inc., is Entitled to
Prejudgment Interest on Awarded Damage:
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Every person who is entitled to recover damages certain or capable of being made certain
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by calculation as of a particular day is entitled to recover interest on those damages as of that day,
Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5;
Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 4
except during time when the debtor was prevented by law or the act of the creditor from paying
the debt. This rule applies to the recovery of damages and interest from any debtor, including
public entities. Civil Code § 3287(a); see Code Civil Procedure § 685.010(a) (legal rate of
interest is 10 percent except for public entities).
When the statutory prerequisites are met, this Civil Code § 3287(a) applies to every
person entitled to recover damages without regard to the underlying cause of action for which
damages are awarded. Lafferty v. Wells Fargo Bank, N.A. (2018) 25 Cal. App. 5" 398, 416.
Damages are deemed certain or capable of being made certain if there is essentially no dispute
between the parties concerning the basis for computing damages should liability be resolved
10 against defendant. Fireman’s Fund Ins. Co. v. Allstate Ins. Co. (1991) 234 Cal. App. 3d 1154,
11 1172-1174. Esgro Cent. Inc. v. General Ins. Co. Of Am. (1971) 20 Cal. App. 3d 1054, 1060,
12 accord, Adams v. Johns-Manville Corp. (9" Cir. 1989) 876 F. 2d 702, 710.
13 An example of entitlement to prejudgment interest under Civil Code § (a) is Goldfarb v.
14 Civil Service Comm’n (1990) 225 Cal. App 3d 633, (civil servant entitled to interest on each
15 installment of back salary award from the date the salary fell due). Likewise, a public employee
16 was found to be entitled to prejudgment interest under Civ. Code § 3287(a) for wrongful
17 withholding of disability retirement benefits which commenced on the date of the wrongful
18 denial. Flethez v. San Bernardino County Employees Retirement Assn. (2017) 2 Cal 630, 646.
19 Interest in Contract Actions
20 The measure of damages for breach of contract is the amount which will compensate the
21 party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course
22 of things, would be likely to result therefrom. Civil Code §3300. Civil Code § 3301 provides that
23 “No damages can be recovered for a breach of contract which are not clearly ascertainable in both
24 their nature and origin.” Finally, Civil Code § 3302 provides that the detriment caused by the
25 breach of an obligation to pay money only, is deemed to be the amount due by the terms of the
26 obligation, with interest thereon (Our emphasis).
27 Interest provided for in Contract
28 If a contract stipulates a legal rate of interest, that rate remains chargeable after a breach
Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5;
Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 5
of contract, as before, until the contract is superceded by a verdict or other new obligation. Civil
Code § 3289(a). Howard v. American Nat’I Fire Ins. Co. (2010) 187 Cal. App. 4" 498, 538
(contract rate applies until contract superseded by judgment).
If a contract entered into after January 1, 1986, does not stipulate a legal rate of interest,
the obligation bears interest at a rate of 10 percent per annum after breach. Civil Code § 3289(b).
If the contract does not make any provision for interest, the right to recover prejudgment interest
is governed by Civil Code § 3287(a). Interest is a form of compensation used to restore Plaintiff
for moneys that have been unavailable for a business or investment. See Southwest Concrete
Products v. Gosh Construction Corp. (1990) 51 Cal. 3d 701, 70-709.
10 Damages are deemed certain or capable of being made certain within the provisions of
11 Civil Code § 3287(a) if the parties’ essential dispute does not concern the basis of computation of
12 damage, if any are recoverable, but rather concerns the issue of liability giving rise to damages.
13 Olson v. Cory (1983) 35 Cal. 3d 389 402. When damages are certain or capable of being made
14 certain, the plaintiff is entitled to an award of prejudgment interest as a matter of right.
15 B. Meritronics Materials, Inc., is Entitled to An Award
of Reasonable Attorneys Fees in the Amount of
16 $1,200.00 pursuant to Civil Code § 1717.5
17 Part 3 of the Civil Code, commencing with section 1708 sets forth “Obligations Imposed
18 by Law.” Section 1717.5 is a statutory provision making reasonable attorneys fees available
19 under certain circumstances for book accounts as defined by C.C.P. § 337a. When Civil Code §
20 1717 fails to provide for attorneys fees in contracts between parties, Civil Code § 1717.5
21 provides modest relief for attorneys fees at two distinct levels.
22 If the book account is owed by a natural person for goods, moneys, or services which
23 were primarily for personal, family or household purposes, the court is authorized to award
24 attorneys fees in an amount that will not exceed $960.00. In all other cases, the amount cannot
25 exceed $1,200.00.
26 All the elements exist for finding that Meritronics Materials, Inc., is entitled to the modest
27 award of attorneys fees in the amount of $1,200.00 on its book account cause of action. HIQ
28 Solar is not a natural person and the goods sold to it by Plaintiff were not for goods, moneys, or
Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5;
Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 6
1 services which were primarily for personal, family or household purposes.
Dated: March 20, 2020
LAW OFFICES OF EUGENE FLEMATE
Attomeys for Plaintiff and Cross-Defendant
MERITRONICS MATERIALS, INC., and
Cross-Defendant RICHARD J. MALDONADO
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Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5;
Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 7
PROOF OF SERVICE BY E-MAIL
I, EUGENE FLEMATE, declare:
I am over the age of eighteen years and not a party to the within action. I am employed in
the City of San Jose, County of Santa Clara, State of California. My business address is 552
North Second Street, San Jose, California 95112.
On March 10, 2020, I served the within documents described as:
NOTICE OF MOTION FOR PREJUDGMENT INTEREST AND FOR
ATTORNEYS FEES PURSUANT TO CIVIL CODE §1717.5; DECLARATION OF
EUGENE FLEMATE IN SUPPORT; AND MEMORANDUM OF POINTS AND
AUTHORITIES
on the interested parties in the within action by attaching and e-mailing a true copy thereof to the
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following e-mail addresses:
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Richard G. Garcia Mark Wilson
12 Manning & Kass Manning & Kass
rgg@manningllp.com mxw@manningllp.com
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Karly Peterson
14 Law Office of K. Peterson
kp@kpetersonlaw.com
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I declare under penalty of perjury under the laws of the State of California that
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the foregoing is true and correct and that this declaration was executed on March 10, 2020
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at San Jose, California.
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Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5;
Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 8
Preview
EUGENE FLEMATE (SBN 57011) AARON FLEMATE (SBN 283463 LAW OFFICES OF EUGENE FLEMATE 552 North Second Street San Jose, CA 95112 Telephone: (408) 298-7700 Facsimile: (408) 298-7715 E-mail: flemate@aol.com MRJ1-91.P094 KARLY PETERSON (SBN 310830) LAW OFFICE OF K. PETERSON 3938 Smith Street, Suite H Union City, CA 94587 Telephone: (510) 838-0504 Facsimile: (510) 860-4953 E-mail: kp@kpetersonlaw.com 10 Attorneys for Plaintiff and Cross-Defendant MERITRONICS MATERIALS, INC., and 11 Cross-Defendant RICHARD J. MALDONADO 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SANTA CLARA, 14 UNLIMITED JURISDICTION 15 MERITRONICS MATERIALS, INC., Case No. 17-CV-315403 16 Plaintiff, NOTICE OF MOTION FOR 17 PREJUDGMENT INTEREST AND FOR VS. ATTORNEYS FEES PURSUANT TO 18 CIVIL CODE §1717.5; DECLARATION 19 HIQ SOLAR, INC., OF EUGENE FLEMATE IN SUPPORT; Does 1-20, inclusive, AND MEMORANDUM OF POINTS AND AUTHORITIES 20 Defendants. Date: March 27, 2020 21 Time: 1:30 p.m. 22 AND RELATED CROSS-ACTION Dept: 16 Honorable William J. Monahan 23 24 25 TO Defendant HIQ SOLAR, INC., and to its attorney of record: 26 NOTICE IS HEREBY GIVEN that on March 27, 2020 at 1:30 p.m., or as soon thereafter 27 as the matter may be heard, in Department 16 of this court, located at 191 N. First Street, San 28 Jose, Ca 95113, Plaintiff MERITRONICS MATERIALS, INC., will move for an order to insert Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5; Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 1 prejudgment interest on the judgment to be entered in the above-entitled cause at the legal rate of ten percent per annum from January 31, 2017 to the date of entry of the judgment, March 27, 2020, in the amount of $240,364.40. The motion will be made on the grounds that Plaintiff is entitled to prejudgment interest based on damages that were certain or capable of being made certain by calculation pursuant to Civil Code § 3287(a). Plaintiff will further move for an award of attorneys fees in the amount of $1,200.00 on Plaintiff's Second cause of action for an Open Book Account pursuant to Civil Code § 1717.5. These motions will be based on this notice of motion, on the declaration of Eugene 10 Flemate, on the memorandum of points and authorities served and filed herewith, on the papers 11 and records on file herein, and on such oral and documentary evidence as may be presented at the 12 hearing of the motions. 13 Dated: March 10, 2020 14 LAW OFFICES OF EUGENE FLEMATE 15 16 py _Aeegink them 17 Attorneys for Plaintiff and Cross-Defendant 18 MERITRONICS MATERIALS, INC., and Cross-Defendant RICHARD J. MALDONADO 19 20 DECLARATION OF EUGENE FLEMATE IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST AND FOR 21 ATTORNEYS FEES PURSUANT TO CIVIL CODE §1717.5 22 I, EUGENE FLEMATE, declare: 23 1 Jam an attorney at law duly licensed to practice before all the courts of the State 24 of California and am the attorney of record for Plaintiff Meritronics Materials, Inc. I make this 25 declaration in support of Meritronics Materials, Inc.’s motion to insert prejudgment interest and 26 for attorneys fees pursuant to Civil Code § 1717.5 in its judgment against HIQ Solar, Inc. The 27 information stated below is personally known to me and if called upon to testify in court, I would 28 and could competently testify as follows: Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5; Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 2 1 2. Plaintiff's complaint for breach of written contract, open book account; quantum meruit; and quantum valebant was filed in 17CV315403 on September 1, 2017. In all three causes of action, Plaintiff alleged the same amount of damages, against HIQ Solar, Inc., to wit, $762,233.05. In all three causes of action, Plaintiff alleged a right to prejudgment interest on said damages of $762,233.05 from January 31, 2017 until entry of judgment. See paragraphs 8, 13 and 15 of Plaintiff's complaint and item 2 of the complaint’s prayer on page 4. 3 This cause came on regularly for trial on February 5, 2020 in Department 16 of the above-entitled court, the Honorable William J. Monahan, Judge, presiding. A jury of twelve persons was regularly impaneled and sworn to try the action. Witnesses on the part of both 10 Plaintiff and Cross-Defendants and Defendant and Cross-Complainant were sworn and 11 examined. After hearing the evidence, the arguments of counsel, and instructions of the court, 12 the jury retired to consider their verdict, subsequently returned to court, and being called, 13 answered to their names and duly rendered their verdict in writing, in words and figures, as 14 follow: 15 WE, the jury in the above-entitled action find as follows: 16 On Meritronics Materials, Inc:’s claim for breach of written contract, we find in favor of 17 Meritronics Materials, Inc., and against HIQ Solar, Inc. 18 On Meritronics Materials, Inc.’s claim for open book account, we find in favor of 19 Meritronics Materials, Inc., and against HIQ Solar, Inc. 20 On Meritronics Materials, Inc.’s claim for quantum meruit; quantum valebant, we find in 21 favor of Meritronics Materials, Inc., and against HIQ Solar, Inc. 22 ‘We award Meritronics Materials, Inc., damages in the amount of $762,233.05. 23 4 I calculated the yearly interest owing on $762,233.05 as being ten percent of 24 $762,233.05, or $76,223.31 per year. The daily interest would be calculated by dividing 25 $76,233.31 by 365, which would equal $208.83 per day. Three years of interest from January 31, 26 2017 to January 31, 2020 is equal to $76,223.31 times three, or $228,669.92. Assuming that the 27 court will enter judgment on March 27, 2020, the daily interest for the days from February 1, 28 2020 to March 27, 2020 would be 56 days times daily interest of $208.83, or $11,694.48. To Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5; Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 3 summarize, the total interest due on the damages of $762,233.05 from January 31, 2017 to March 27, 2020 would be $240,364.40. Any interest beyond March 27, 202 would be compensated by $208.83 per additional day. 5 In Plaintiff's second cause of action for open book account, Plaintiff alleged in paragraph 13 of the complaint that it was entitled to reasonable attorneys fees in the amount of $1,200.00 pursuant to Civil Code § 1717.5. These same reasonable attorneys fees are also prayed for in item 3 of the complaint’s prayer. 6 The purchase orders and invoices that were exchanged between Plaintiff and Defendant did not have any provision for attorneys fees. The purchase orders and invoices 10 constituted a detailed statement which constituted the principal record of the transactions 11 between Plaintiff and Defendant and were kept by Plaintiff in the regular course of business. 12 Since there were no payments made by Defendant, there were no credits in favor of Defendant to 13 offset the debits set forth by Plaintiff. The jury found in favor of Plaintiff on its claim of open 14 book account. 15 7 Since there was no provision for attorneys fees between the parties, Civil Code § 16 1717.5 provides for an award of attorneys fees to the prevailing party in the lesser amount of 17 $1,200.00 or 25% of the principal amount owing which was found by the jury to be $762,233.05. 18 Thus the lessor amount would be $1,200.00. 19 I declare under penalty of perjury that the foregoing is true and correct under the laws of 20 the State of California. Executed on March 10, 2020 at San Jose, CA 95112. 21 22 tome EUGE) FLEMATE 23 24 25 MEMORANDUM OF POINTS AND AUTHORITIES 26 A. Meritronics Materials, Inc., is Entitled to Prejudgment Interest on Awarded Damage: 27 Every person who is entitled to recover damages certain or capable of being made certain 28 by calculation as of a particular day is entitled to recover interest on those damages as of that day, Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5; Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 4 except during time when the debtor was prevented by law or the act of the creditor from paying the debt. This rule applies to the recovery of damages and interest from any debtor, including public entities. Civil Code § 3287(a); see Code Civil Procedure § 685.010(a) (legal rate of interest is 10 percent except for public entities). When the statutory prerequisites are met, this Civil Code § 3287(a) applies to every person entitled to recover damages without regard to the underlying cause of action for which damages are awarded. Lafferty v. Wells Fargo Bank, N.A. (2018) 25 Cal. App. 5" 398, 416. Damages are deemed certain or capable of being made certain if there is essentially no dispute between the parties concerning the basis for computing damages should liability be resolved 10 against defendant. Fireman’s Fund Ins. Co. v. Allstate Ins. Co. (1991) 234 Cal. App. 3d 1154, 11 1172-1174. Esgro Cent. Inc. v. General Ins. Co. Of Am. (1971) 20 Cal. App. 3d 1054, 1060, 12 accord, Adams v. Johns-Manville Corp. (9" Cir. 1989) 876 F. 2d 702, 710. 13 An example of entitlement to prejudgment interest under Civil Code § (a) is Goldfarb v. 14 Civil Service Comm’n (1990) 225 Cal. App 3d 633, (civil servant entitled to interest on each 15 installment of back salary award from the date the salary fell due). Likewise, a public employee 16 was found to be entitled to prejudgment interest under Civ. Code § 3287(a) for wrongful 17 withholding of disability retirement benefits which commenced on the date of the wrongful 18 denial. Flethez v. San Bernardino County Employees Retirement Assn. (2017) 2 Cal 630, 646. 19 Interest in Contract Actions 20 The measure of damages for breach of contract is the amount which will compensate the 21 party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course 22 of things, would be likely to result therefrom. Civil Code §3300. Civil Code § 3301 provides that 23 “No damages can be recovered for a breach of contract which are not clearly ascertainable in both 24 their nature and origin.” Finally, Civil Code § 3302 provides that the detriment caused by the 25 breach of an obligation to pay money only, is deemed to be the amount due by the terms of the 26 obligation, with interest thereon (Our emphasis). 27 Interest provided for in Contract 28 If a contract stipulates a legal rate of interest, that rate remains chargeable after a breach Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5; Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 5 of contract, as before, until the contract is superceded by a verdict or other new obligation. Civil Code § 3289(a). Howard v. American Nat’I Fire Ins. Co. (2010) 187 Cal. App. 4" 498, 538 (contract rate applies until contract superseded by judgment). If a contract entered into after January 1, 1986, does not stipulate a legal rate of interest, the obligation bears interest at a rate of 10 percent per annum after breach. Civil Code § 3289(b). If the contract does not make any provision for interest, the right to recover prejudgment interest is governed by Civil Code § 3287(a). Interest is a form of compensation used to restore Plaintiff for moneys that have been unavailable for a business or investment. See Southwest Concrete Products v. Gosh Construction Corp. (1990) 51 Cal. 3d 701, 70-709. 10 Damages are deemed certain or capable of being made certain within the provisions of 11 Civil Code § 3287(a) if the parties’ essential dispute does not concern the basis of computation of 12 damage, if any are recoverable, but rather concerns the issue of liability giving rise to damages. 13 Olson v. Cory (1983) 35 Cal. 3d 389 402. When damages are certain or capable of being made 14 certain, the plaintiff is entitled to an award of prejudgment interest as a matter of right. 15 B. Meritronics Materials, Inc., is Entitled to An Award of Reasonable Attorneys Fees in the Amount of 16 $1,200.00 pursuant to Civil Code § 1717.5 17 Part 3 of the Civil Code, commencing with section 1708 sets forth “Obligations Imposed 18 by Law.” Section 1717.5 is a statutory provision making reasonable attorneys fees available 19 under certain circumstances for book accounts as defined by C.C.P. § 337a. When Civil Code § 20 1717 fails to provide for attorneys fees in contracts between parties, Civil Code § 1717.5 21 provides modest relief for attorneys fees at two distinct levels. 22 If the book account is owed by a natural person for goods, moneys, or services which 23 were primarily for personal, family or household purposes, the court is authorized to award 24 attorneys fees in an amount that will not exceed $960.00. In all other cases, the amount cannot 25 exceed $1,200.00. 26 All the elements exist for finding that Meritronics Materials, Inc., is entitled to the modest 27 award of attorneys fees in the amount of $1,200.00 on its book account cause of action. HIQ 28 Solar is not a natural person and the goods sold to it by Plaintiff were not for goods, moneys, or Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5; Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 6 1 services which were primarily for personal, family or household purposes. Dated: March 20, 2020 LAW OFFICES OF EUGENE FLEMATE Attomeys for Plaintiff and Cross-Defendant MERITRONICS MATERIALS, INC., and Cross-Defendant RICHARD J. MALDONADO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5; Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 7 PROOF OF SERVICE BY E-MAIL I, EUGENE FLEMATE, declare: I am over the age of eighteen years and not a party to the within action. I am employed in the City of San Jose, County of Santa Clara, State of California. My business address is 552 North Second Street, San Jose, California 95112. On March 10, 2020, I served the within documents described as: NOTICE OF MOTION FOR PREJUDGMENT INTEREST AND FOR ATTORNEYS FEES PURSUANT TO CIVIL CODE §1717.5; DECLARATION OF EUGENE FLEMATE IN SUPPORT; AND MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in the within action by attaching and e-mailing a true copy thereof to the 10 following e-mail addresses: 11 Richard G. Garcia Mark Wilson 12 Manning & Kass Manning & Kass rgg@manningllp.com mxw@manningllp.com 13 Karly Peterson 14 Law Office of K. Peterson kp@kpetersonlaw.com 15 I declare under penalty of perjury under the laws of the State of California that 16 the foregoing is true and correct and that this declaration was executed on March 10, 2020 17 at San Jose, California. 18 19 20 21 22 23 24 25 26 27 28 Notice of Motion for Prejudgment Interest and for Attorneys Fees Pursuant to Civil Code §1717.5; Declaration of Eugene Flemate in Support; and Memorandum of Points and Authorities, Page 8