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ORISINAL
KNIGHT LAW GROUP, LLP
Steve Mikhov (SBN
stevem@knightlaw.com
224676) FI LEOFDCALIFORNIA
COURT
SUPERIOOUNTY OF PLACER
Deepak Devabose (SBN 298890)
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deepakd@knightlaw.com C13 2019
10250 Constellation Blvd., Suite 2500
CHATTERS
B&B
Los Angeles, CA 90067 JAKE
OFFICER & CLERK
EXECUTIVE
Telephone: (310) 552-2250 By: C. Waggoner, Deputy
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Fax: (310) 552-7973
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THE ALTMAN LAW GROUP
Bryan Charles Altman (SBN 122976)
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bryan@altmanlawgroup.net
10250 Constellation Blvd., Suite 2500
C0
Los Angeles, CA 90048
Telephone: (323) 653-5581
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Fax: (323) 653-5542
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Attorneys for Plaintiff,
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ANNA P. KING
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF PLACER
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ANNA P. KING, Case No.: SCV0038637
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Judge: Hon. Michael Jones
Plaintiff,
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PLAINTIFF’S REPLY TO DEFENDANT
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Vs. HYUNDAI MOTOR AMERICA’S
OPPOSITION TO PLAINTIFF’S
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MOTION FOR PREJUDGMENT
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HYUNDAI MOTOR AMERICA, a INTEREST
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California Corporation, and DOES 1
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through 10, inclusive, Date: December 20, 2019
Time: 8:30am
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Defendants. Dept.: 31
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST
MEMORANDUM OF POINTS AND AUTHORITIES
L INTRODUCTION
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Defendant Hyundai Motor America’s (“HMA” or “Defendant’’) opposition to plaintiff
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ANNA P. KING’s (“Plaintiff”) motion for prejudgment interest proposes that prejudgment
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interest can never be awarded when the parties disagree about the measure of damages, or
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whenever a defendant simply denies any liability. Under Defendant’s theory, prejudgment
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interest can never be awarded when a case goes to trial because at trial liability is contested.
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Defendant’s circular reasoning creates a paradox where prejudgment interest can never be
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awarded: If liabilityis admitted and a case settles then there is no judgment and no prejudgment
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interest. On the other hand, ifthe case goes to trialthere isstillno prejudgment interest because
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liability is disputed. Defendant’s reasoning is flawed and case law demonstrates prejudgment
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interest is awardable in circumstances such as those present here. For the reasons expressed
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herein, Plaintiff respectfully requests the Court to award prejudgment interest under Civil Code
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section 3287(a) inthe amount of $24,871.28 under subdivision (a) from the date of injury to the
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date of the jury’s verdict, plus $583.25 from the date of the verdict until the entry of judgment,
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for a total award of prejudgment interest in the sum of $25,454.53.
II. ARGUMENT AND ANALYSIS
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A. Plaintiff's Motion for Prejudgment Interest Is Timely
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Defendant disingenuously asserts that Plaintiff's motion for prejudgment interest is
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Medical Clinic v.
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untimely as a matter of law based on a flawed interpretation ofNorth Oakland
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Rogers (1998) 65 Cal.App.4" 824, 830. In North Oakland, the court held that the plaintiff's
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was untimely based on individualized facts that are separate and
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motion for prejudgment interest
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distinct from the facts of this case.
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First, North Oakland recognized that, “...no statute or rule of court establishes a
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inthe superior
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procedure for requesting an award of prejudgment interest,or a time limit therefor,
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court.” (North Oakland Medical Clinic, supra, 65 Cal.App.4" at 829-830.) But North Oakland
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timely requested the court to exercise its power to
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considered the issue of “...whether plaintiffs
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under section 3287 in circumstances where
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determine whether plaintiffs were entitled to interest
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST
damages had been awarded but no interest was included in the verdict and where neither court
nor jury had determined whether the damages were liquidated or unliquidated.” (North Oakland
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Medical Clinic, supra, 65 Cal.App.4" at 829.) As the court stated, “Our answer isno.” (Jbid.)
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That is not the fact pattern applicable to this case. Page 4 of Exhibit F to Hyundai’s counsel’s
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declaration in support of Hyundai’s opposition clearly states that “This Court shall decide all
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issues involving fees, costs, expenses and interest, if any, by post-verdict motion(s) and may
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order entry of amended judgment as appropriate.” Additionally, Plaintiff's complaint requested
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prejudgment interest in the prayer for relief.
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North Oakland was examined by the court in Steiny & Co. v. Cal. Elec. Supply Co. (2000)
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79 Cal.App.4" 285, 294. In Steiny the court also recognized that “...neither section 3287, nor
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any other rule, specifies when prejudgment interest must be sought.” (/d.) The court in Steiny
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observed that North Oakland “...concluded that there must be some deadline, and that such a
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request made after judgment and after completion of postjudgment proceedings, without notice
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to the adversary, is too late.” (/d.) The court in North Oakland found that the plaintiff's
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prejudgment interest request was untimely because the plaintiff sought prejudgment interest by
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inserting the amount at the last minute in the cost award. (/d.) However, the plaintiff failed to
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give notice of that factto the other party. (/d.)Moreover, the plaintiff did so after the verdict and
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postjudgment motions for a new trial and to tax costs had been already been heard and decided.
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(/d.) The court in Steiny declined to follow North Oakland, noting that the extreme facts of North
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Oakland bore no resemblance the facts present in Steiny. (Id.)
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This Court must reach the same conclusion. Here, the complaint, which was filed on
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October 28, 2016, specifically requested prejudgment interest in the prayer for relief. Here, the
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judgment entered expressly stated that interest could be sought by motion and determined after
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entry of judgment. Therefore, Defendant was on notice at all times while this case was pending
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that Plaintiff sought prejudgment interest. In short, Defendant’s reliance on North Oakland is
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misplaced and, in fact, misleading. As such, the Court must find that this motion isnot time-
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barred.
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/II
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST
B. Plaintiff is Entitled to Prejudgment Interest under Civil Code § 3287(a) Because
HMA Knew the Amount of Plaintiff's Damages or Was Capable of Ascertaining the
Amount by Calculation
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“Every person who isentitled to recover damages certain, or capable of being made certain
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by calculation, and the right to recover which is vested in him upon a particular day, is entitled
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also to recover interest thereon from that day....” (Civ. Code, § 3287(a).) “Under section 3287,
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subdivision (a) the court has no discretion, but must award prejudgment interest upon request,
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from the firstday there exists both a breach and a liquidated claim.” (North Oakland, supra, 65
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Cal.App.4th at 828-829.)
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Defendant argues against recovery of interest under 3287(a), which is mandatory when
“damages [are] certain or capable of being made certain by calculation,” by contending that
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Plaintiffs ““...damages have never been readily calculable, and the amount of restitution damages
were in dispute from the outset of litigation.” (Deft. ’sOpps’n., pg. 4:10-11.) HMA then attempts
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to feign the inability to calculate damages by referring to varying contentions by the parties and
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the jury as to the amount of damages. (Deft. ’s Opps’n., pg. 4:20-28; 5:1-10.) But the fact that
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HMA labored to produce a dispute about damages out of thin air, claiming they are not
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recoverable without any legal basis to support the claim, does not render damages incalculable or
uncertain.
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The issue iswhether the defendant knew the amount of damages owed to the plaintiff or
could have computed the amount from reasonably available information. (Chesapeake Industries,
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Inc. v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 907.) The answer to that question is
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clear yes when considering the 998 Hyundai wishes to enforce was for specifically $37,106.38.
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(Mikhov Dec., Ex. D.). As Plaintiff predicted in her moving papers, Hyundai is now arguing it
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somehow magically picked $37,106.38 for its 998 offer amount but could otherwise never
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reasonably calculate Plaintiffs compensatory damage request to the jury attrial.
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As shown above, the compensatory award was either liquidated in this case or atleast was
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of being made certain by calculation and there can be no dispute that Hyundai knew at
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capable
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least approximately how much these damages were based on the information in the sales contract,
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which was served on Hyundai as an exhibit to Plaintiff's Complaint on October 28, 2016
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST
Even if HMA disputes civil penalties or incidental damages to support its claim that
Plaintiff's damages were uncertain, itdoes not dispute the amount of Plaintiff's compensatory
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damages for the value of the vehicle. The amount of Plaintiff's damages for the purchase price
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of the defective vehicle was “capable of being made certain by calculation.” Plaintiff's damages
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involving the purchase of the vehicle was certain from the firstday Plaintiff owned the vehicle as
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itwas clearly identified on the purchase contract. The contract provided the price of the vehicle,
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interest rate on the loan, amount of each payment, and number of payments. Thus, Defendant
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that warrant prejudgment interest. Even ifDefendant had
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knew the exact amount of the damages
a dispute about the amount of the mileage offset, Defendant stillknew the amount of damages —
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itwas either one amount or another amount, depending on which repair presentation formed the
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basis of the mileage offset. The rest is just arithmetic. “It is sufficient for the defendant to know
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the amount or have the capability to compute it from reasonably available information.”
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& Med. Ctr. v. Bonta (2002) 97 Cal.App4th 740, 774.) “The existence of a
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(Children’s Hosp.
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the parties as to the amount owing under an express contract does not
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bona fide dispute between
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render that sum ‘unliquidated.’” (Rabinowitch v. California Western Gas Co. (1967) 257
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Cal.App.2d 150, 161.) Therefore, even ifthe Court were to accept that HMA did not know all of
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Plaintiff's damages, orthat HMA disputed recovery of some categories of damages, HMA cannot
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legitimately claim that itnever knew or could not reasonably calculate Plaintiffs compensatory
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damages .
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C. A Dispute Over Liability Does Not Preclude an Award of Prejudgment Interest
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under 3287(a) and Duale Does Not Control
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in a civil action.”
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“A dispute concerning liabilitydoes not preclude prejudgment interest
Neither
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513,517.)
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(Boehm & Associates v. Workers' Comp. Appeals Bd. (1999) 76 Cal.App.4th
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a defendant’s denial of liability nor defendant’s unliquidated claim for offsets makes damages
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uncertain for purposes of Civil Code section 3287. (Stein v. Southern California Edison Co.
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Nat.
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(1992) 7 Cal.App.4th 565; Olson v. Cory (1983) 35 Cal.3d 390, 402; Howard v.American
law on the
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Fire Ins. Co., 187 Cal.App.4th 498, 536.) Notwithstanding the wealth of case
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particular proposition that a dispute over liability does not preclude prejudgment interest under
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HMA relies almost exclusively on the holding in Duale v. Mercedes-Benz, USA, LLC
3287(a),
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST
(2007) 148 Cal.App.4th 718, and instead of finding additional cases to support its position, HMA
spends two pages trying to distinguish cases that Plaintiff relies upon.
Defendant uses Duale for the notion that any time a defendant disputes liability at trial,
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then prejudgment interest is not available. HMA repeatedly claims that Duale means
prejudgment interest isnot recoverable in a Song-Beverly Act case whenever a defendant insists
on paying less than the statute requires. Thus, Defendant’s position is that prejudgment interest
is never available in any circumstance whatsoever, which then nullifies the entire existence of a
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prejudgment interest award and renders Civil Code section 3287 mere surplusage. Such a result
would be contrary to Civil Code section 3541, which codifies the maxim of jurisprudence that,
“An interpretation which gives effect is preferred to one which makes void.” The majority of
other cases that discusses prejudgment interest in the Song-Beverly Act or with respect to a
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breach of express warranty finds that prejudgment interest ispermissible even though liability
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was disputed. What is more, Duale only addresses prejudgment interest under Civil Code section
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3287(a) but does not address or even mention the recovery of interest under Civil Code section
3287(b). Defendant’s reliance on Duale, to which itrefers as the “seminal case on prejudgment
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interest in the context of Song-Beverly” was expected, but Defendant ignores the fact that this
would-be “seminal case” was completely marginalized by the subsequent holding inDoppes v.
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Bentley Motors, Inc. (2009) 174 Cal.App.4" 1004.
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In Doppes, a Song-Beverly Act case that comes after Duale, the defendant manufacturer
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Bentley relied on Duale to exclude prejudgment interest, like HMA does here. The court of
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appeal did not find Duale controlling and found that prejudgment interest was proper under
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3287(a). (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1009-1011.) Critically,
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the defendant in Doppes also disputed liability for the repurchase of the vehicle under the Song-
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Beverly Act. “A jury found that Bentley violated the Song-Beverly Consumer Warranty Act
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and... found Bentley breached express and implied warranties.” (/d. at 1007.) Bentley disputed
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liability and when itfiled a motion to set aside judgment based on the trialcourt’s award of
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prejudgment interest, the court held that “the trial court had jurisdiction to award Doppes
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prejudgment interest. Accordingly, the trialcourt did not err in denying Bentley's motion to set
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST
aside the judgment” even though Bentley cited to Duale like HMA does here. (/d. at 1011.)
In Jensen, the issue of liability forthe repurchase of the vehicle was also contested. “The
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jury returned a verdict in favor of Jensen and awarded her $29,351 in damages. It also imposed
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a $58,702 civil penalty against BMW.” (Jensen v. BMW of North America, Inc. (1995) 35
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Cal.App.4th 112, 119.) Despite the dispute over liability, the trial court awarded prejudgment
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interest, which was not challenged by the defendant, BMW, in the appeal. (/d.at 137, fn 12.)
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In Lukather, a case which also post-dates Duale by three years, and involved a dispute
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over liabilityat trial,the court held that the manufacturer “fails to show that the trialcourt abused
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itsdiscretion inawarding prejudgment interest.” (Lukather v. General Motors, LLC (2010) 181
Cal.App.4th 1041, 1053.)
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Defendant’s argument that “Interest only runs from the date of notice to the defendant of
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plaintiff's specific losses[,]” (Deft. ’s Opps’n, pg. 9:12-13) is mistaken in the context of Song-
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Beverly Act litigation as well as the Stein case it was misappropriated from by Hyundai here.
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the Act, there is no notification requirement whatsoever. “[A]s the Act “stands now,
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Under
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however, the manufacturer has an affirmative duty to replace a vehicle or make restitution to the
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buyer if the manufacturer is unable to repair the new vehicle after a reasonable number of repair
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attempts, and the buyer need not reject orrevoke acceptance of the vehicle at any time. The buyer
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need only provide the manufacturer with a reasonable opportunity to fix the vehicle.” (Lukather
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v. General Motors (2010) 181 Cal.App.4th 1041, 1050; quoting Krotin v. Porsche Cars North
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America, Inc. (1995) 38 Cal.App.4" 294, 302.) Defendant’s reliance on Stein v. Southern
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(1992) 7 Cal.App.4"" 565, 573 in support of its notice argument is
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California Edison Co.
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Stein had nothing to do with the Song-Beverly Act. Stein was a tort action
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misplaced because
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arising from damage to a house in a fire allegedly caused by the power
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based on strict liability
over
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company’s modification of a transformer by disabling itscircuit breakers so it could carry
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(Stein v. Southern
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of its normal capacity, which eventually caused itto explode.
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200 percent
California Edison Co., supra, 7 Cal.App.4" at 567-568.)
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contentions would render prejudgment interest never recoverable.
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Accepting Defendant’s
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then prejudgment interest is not recoverable.
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Defendant insists that if liability is contested,
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST
Logically however, if liability was not contested, there would be no trial. If liability was not
contested, the case would settle and there
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would be no judgment from which to obtain
prejudgment interest. Defendant’s arguments envision the absurd
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result of having a statute, Civil
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Code section 3287, that provides unattainable relief.
D. The Court is Vested With Discretion to Award Prejudgment Interest Under Civil
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Code § 3287(b) In Song-Beverly Act Litigation Even If Damages Are Uncertain
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Defendant claims that an award of prejudgment interest under Civil Code section 3287 is
improper in all Song-Beverly cases. Defendant states “Plaintiff did not sue the dealer, nor did
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she bring a cause of action for breach of contract.” (Def. Opp. p. 2:22-23.) This same sort of
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logic, if adopted by the courts, would allow every manufacturer who does not directly contract
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with a consumer to automatically avoid prejudgment interest on unliquidated claims, regardless
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of the express warranties offered.
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The purpose of 3287(b) isto award prejudgment interest where it is fairto do so even if
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a defendant claims damages were uncertain. Section 3287 "was amended in 1967 to give the trial
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court discretionary authority to award prejudgment interest in contract actions" where the
damages are not liquidated. (Rifkin v. Achermann (1996) 43 Cal.App.4th 391, 396.) Section
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3287(b) "seeks to balance the concern for fairness to the debtor against the concern for full
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compensation to the wronged party." (Lewis C. Nelson & Sons, Inc. v.Clovis Unified Sch. Dist.
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(2001) 90 Cal.App.4th 64, 69.) "By itsvery terms, subsection (b) was designed to allow trial
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courts flexibility in circumstances where the exact amount of damage is in dispute." (A & M
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Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 496; emphasis added.)
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In Bishop v. Hyundai (1996) 44 Cal.App.4th 750, 758, the court would not permit
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emotional distress damages in Song-Beverly litigation, “because they may not be recovered in
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an action for breach of contract.” (Bishop v.Hyundai (1996) 44 Cal.App.4th 750, 758.) In other
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words, the court agreed that such causes of action under Song-Beverly are indeed based upon
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contract. Here, the underlying claim isbreach of express warranty — it is a written agreement
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where both sides have obligations, e.g. Defendant must repair the vehicle during the warranty
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period and Plaintiff must maintain the vehicle properly to avoid causing problems to the vehicle.
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If she fails in her obligation, Defendant’s performance isexcused — likeany other contract.
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST
Defendant’s main assertion to avoid prejudgment interest under 3287(b) is that because
HMA and Plaintiff were not in direct privity of contract, 3287(b) does not apply. However,
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actions for breach of express warranty, and by extension those brought under Song-Beverly for
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the same, do not require privity. “When a consumer relies on representations made by a
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manufacturer in labels or advertising material, recovery is allowable on the theory of express
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warranty without a showing of privity.” (Fundin v. Chicago Pneumatic Tool Co. (1984) 152
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Cal.App.3d 951, 957.) “As a general rule, privity of contract isa required element of an express
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breach of warranty cause of action. However, there isan exception where the plaintiffs decision
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to purchase the product was made in reliance on the manufacturers written representations on
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labels and advertising materials.” (Fieldstone Co. V. Briggs Plumbing Prods., Inc. (1997) 54 Cal.
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App.4th 357 n. 10.)
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Section 3287(b) provides: “Every person who is entitled under any judgment to receive
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damages based upon a cause of action incontract where the claims was unliquidated, may also
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recover interest thereon from a date prior to the entry of judgment ...”The exact words of this
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section are “based upon a cause of action in contract,” and does not state anywhere that the
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plaintiff and defendant must be in direct privity of contract inrecover under the section.
California courts have not adhered to a strict application of privity for express warranty
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claims in products liability cases. (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905.)
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California also recognizes that an express warranty is“a contractual promise from the seller that
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the goods conform to the promise.” (/d. at 928.) The rules for interpretation of express warranties
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should not differ from those applied to other contracts. (Daniel v.Ford Motor Co., (2015) 806
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Song-Beverly Act was to “to
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F.3d 1217, 1224.) In fact, the entire purpose behind enacting the
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address difficulties faced by some consumers in enforcing express warranties, by the creation of
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additional remedies, the 'refund-or-replace' provisions and implied warranties, for cases in which
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a purchaser's goods cannot be repaired to meet express warranty standards after a ‘reasonable
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words, the Act was designed to give consumers a
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number of attempts.” (/d. at 916) In other
not live up to their end of the
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contractual remedy against manufacturers who would otherwise
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necessarily indicates that a consumer
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bargain. Hyundai is essentially arguing that lack of privity
8
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST
cannot recover prejudgment interest under 3287(b), when the very provisions of the Act itself
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were designed to eliminate this type of argument in the firstplace. Because California recognizes
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that an express warranty made by a manufacturer is a “contractual promise,” it thereby follows
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that this action is sufficiently “based in contract” such that section 3782(b) can and should be
4
,
applied in this case, at the discretion of this Court.
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The court in Mega RV Corp. also indicated the simple requirement for evaluation under
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section 3287 (b) isa cause of action in contract, not direct contractual privity. (Mega RV Corp.
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v. HWH CORP (2014) 225 Cal.App.4th 1318, 1330 quoting (American Suzuki Motor Corp. v.
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Superior Court (1995) 37 Cal.App.4th 1291, 1295-96.)) The court also indicates that express
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warranties are viewed as being contractually based by quoting, ““‘[uJnlike
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express warranties,
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—
which are basically contractual in nature ....”“*
(/d.)
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Even ifDefendant’s position on contractual
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privity isagreed with, the court in Afkinson found that a company brought itself into privity of
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contract with the ultimate customer through extending its express warranty to that customer.
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(Atkinson v.Elk Corp. Of Texas (2006) 142 Cal.App.4th 212, 248.) Thus, by extending itsexpress
—
_
warranty directly to consumers who purchase new vehicles through its agent dealerships,
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—
Defendant is in contract with the ultimate consumer. Using Defendant’s own argument, ifthe
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_
Court agrees with Atkinson and finds that the extension of an express warranty to the ultimate
—
—
consumer creates a contract between HMA and the consumer, then itclearly has the power to
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award prejudgment interest under 3287(b), should itchoose to do so.
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—
Ill. CONCLUSION
No
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Accordingly, Plaintiff respectfully requests the Court to award prejudgment interest
i)
—
Civil Code section 3287 in the amount of $25,454.53 because damages were reasonably
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under
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causes of action arise from breach of contract.
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calculable and Plaintiffs
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KNIGHT LAW GROUP, LLP
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Dated: December 12, 2019
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Steve Mikhov
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Attorney for Plaintiff
ANNA P. KING
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9
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST
PROOF OF SERVICE
(Code of Civil Procedure §1013a)
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Iam employed in the County of Los Angeles, State of California. Iam over the age of 18
years and not a party to the within action. My business address is 10250 Constellation Blvd.,
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Suite 2500, Los Angeles, CA 90067.
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I served the foregoing documents described as:
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PLAINTIFF’S REPLY TO DEFENDANT HYUNDAI MOTOR AMERICA’S
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OPPOSITION TO PLAINTIFF’S MOTION FOR PREJUDGMENT INTEREST
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Said documents were served on the interested parties inthis action, by placing true copies
thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows:
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SEE ATTACHED SERVICE LIST
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BY OVERNIGHT MAIL/DELIVERY: I caused such envelope to be delivered by hand to
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the office(s) of the addressee(s) via OVERNIGHT EXPRESS or by local courier service.
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BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an
agreement of the parties to
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ORISINAL KNIGHT LAW GROUP, LLP Steve Mikhov (SBN stevem@knightlaw.com 224676) FI LEOFDCALIFORNIA COURT SUPERIOOUNTY OF PLACER Deepak Devabose (SBN 298890) Ww deepakd@knightlaw.com C13 2019 10250 Constellation Blvd., Suite 2500 CHATTERS B&B Los Angeles, CA 90067 JAKE OFFICER & CLERK EXECUTIVE Telephone: (310) 552-2250 By: C. Waggoner, Deputy Wn Fax: (310) 552-7973 DA THE ALTMAN LAW GROUP Bryan Charles Altman (SBN 122976) ON bryan@altmanlawgroup.net 10250 Constellation Blvd., Suite 2500 C0 Los Angeles, CA 90048 Telephone: (323) 653-5581 O&O e Fax: (323) 653-5542 hl | Attorneys for Plaintiff, Eel NY ANNA P. KING FPO WD Ad SUPERIOR COURT OF THE STATE OF CALIFORNIA FF PCF FOR THE COUNTY OF PLACER Un XV4 YF Dn YF ANNA P. KING, Case No.: SCV0038637 YF WON Judge: Hon. Michael Jones Plaintiff, F| PLAINTIFF’S REPLY TO DEFENDANT DO F Vs. HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S CO N MOTION FOR PREJUDGMENT FF HYUNDAI MOTOR AMERICA, a INTEREST N California Corporation, and DOES 1 NY NY through 10, inclusive, Date: December 20, 2019 Time: 8:30am WD NY Defendants. Dept.: 31 Ff N UN NO Oo NY NO oN Bo PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION YP Defendant Hyundai Motor America’s (“HMA” or “Defendant’’) opposition to plaintiff WD ANNA P. KING’s (“Plaintiff”) motion for prejudgment interest proposes that prejudgment Fe, interest can never be awarded when the parties disagree about the measure of damages, or OHO whenever a defendant simply denies any liability. Under Defendant’s theory, prejudgment Do interest can never be awarded when a case goes to trial because at trial liability is contested. NY Defendant’s circular reasoning creates a paradox where prejudgment interest can never be me awarded: If liabilityis admitted and a case settles then there is no judgment and no prejudgment So interest. On the other hand, ifthe case goes to trialthere isstillno prejudgment interest because O&O ee liability is disputed. Defendant’s reasoning is flawed and case law demonstrates prejudgment | interest is awardable in circumstances such as those present here. For the reasons expressed ee NY herein, Plaintiff respectfully requests the Court to award prejudgment interest under Civil Code ee Ww section 3287(a) inthe amount of $24,871.28 under subdivision (a) from the date of injury to the FF Se date of the jury’s verdict, plus $583.25 from the date of the verdict until the entry of judgment, nH See HD for a total award of prejudgment interest in the sum of $25,454.53. II. ARGUMENT AND ANALYSIS Ba FN A. Plaintiff's Motion for Prejudgment Interest Is Timely HB UO Defendant disingenuously asserts that Plaintiff's motion for prejudgment interest is H— Medical Clinic v. CO untimely as a matter of law based on a flawed interpretation ofNorth Oakland HN K|K& Rogers (1998) 65 Cal.App.4" 824, 830. In North Oakland, the court held that the plaintiff's NV was untimely based on individualized facts that are separate and NY motion for prejudgment interest HN Ww distinct from the facts of this case. HN fF First, North Oakland recognized that, “...no statute or rule of court establishes a KH inthe superior UN procedure for requesting an award of prejudgment interest,or a time limit therefor, HN Aan court.” (North Oakland Medical Clinic, supra, 65 Cal.App.4" at 829-830.) But North Oakland NH timely requested the court to exercise its power to NO considered the issue of “...whether plaintiffs oN under section 3287 in circumstances where DN determine whether plaintiffs were entitled to interest ] PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST damages had been awarded but no interest was included in the verdict and where neither court nor jury had determined whether the damages were liquidated or unliquidated.” (North Oakland LPO Medical Clinic, supra, 65 Cal.App.4" at 829.) As the court stated, “Our answer isno.” (Jbid.) WO That is not the fact pattern applicable to this case. Page 4 of Exhibit F to Hyundai’s counsel’s BR declaration in support of Hyundai’s opposition clearly states that “This Court shall decide all DON issues involving fees, costs, expenses and interest, if any, by post-verdict motion(s) and may NN order entry of amended judgment as appropriate.” Additionally, Plaintiff's complaint requested OoH prejudgment interest in the prayer for relief. Oo North Oakland was examined by the court in Steiny & Co. v. Cal. Elec. Supply Co. (2000) Go 79 Cal.App.4" 285, 294. In Steiny the court also recognized that “...neither section 3287, nor mee any other rule, specifies when prejudgment interest must be sought.” (/d.) The court in Steiny HNO eS observed that North Oakland “...concluded that there must be some deadline, and that such a WD request made after judgment and after completion of postjudgment proceedings, without notice ee to the adversary, is too late.” (/d.) The court in North Oakland found that the plaintiff's mm prejudgment interest request was untimely because the plaintiff sought prejudgment interest by DBD inserting the amount at the last minute in the cost award. (/d.) However, the plaintiff failed to ND give notice of that factto the other party. (/d.)Moreover, the plaintiff did so after the verdict and em OH postjudgment motions for a new trial and to tax costs had been already been heard and decided. ODO (/d.) The court in Steiny declined to follow North Oakland, noting that the extreme facts of North COD NO Oakland bore no resemblance the facts present in Steiny. (Id.) F|-§ NO This Court must reach the same conclusion. Here, the complaint, which was filed on NO October 28, 2016, specifically requested prejudgment interest in the prayer for relief. Here, the Nn Ww NO judgment entered expressly stated that interest could be sought by motion and determined after FP NO entry of judgment. Therefore, Defendant was on notice at all times while this case was pending UV NO that Plaintiff sought prejudgment interest. In short, Defendant’s reliance on North Oakland is Nn NO misplaced and, in fact, misleading. As such, the Court must find that this motion isnot time- Ay NO barred. Oo NO /II 2 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST B. Plaintiff is Entitled to Prejudgment Interest under Civil Code § 3287(a) Because HMA Knew the Amount of Plaintiff's Damages or Was Capable of Ascertaining the Amount by Calculation NYO “Every person who isentitled to recover damages certain, or capable of being made certain WD by calculation, and the right to recover which is vested in him upon a particular day, is entitled eRe also to recover interest thereon from that day....” (Civ. Code, § 3287(a).) “Under section 3287, ON subdivision (a) the court has no discretion, but must award prejudgment interest upon request, DR from the firstday there exists both a breach and a liquidated claim.” (North Oakland, supra, 65 N Cal.App.4th at 828-829.) (OOH Defendant argues against recovery of interest under 3287(a), which is mandatory when “damages [are] certain or capable of being made certain by calculation,” by contending that CoCo Plaintiffs ““...damages have never been readily calculable, and the amount of restitution damages were in dispute from the outset of litigation.” (Deft. ’sOpps’n., pg. 4:10-11.) HMA then attempts YO to feign the inability to calculate damages by referring to varying contentions by the parties and WY the jury as to the amount of damages. (Deft. ’s Opps’n., pg. 4:20-28; 5:1-10.) But the fact that FF HMA labored to produce a dispute about damages out of thin air, claiming they are not DH mm recoverable without any legal basis to support the claim, does not render damages incalculable or uncertain. FN The issue iswhether the defendant knew the amount of damages owed to the plaintiff or could have computed the amount from reasonably available information. (Chesapeake Industries, ODO Om Inc. v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 907.) The answer to that question is DOD clear yes when considering the 998 Hyundai wishes to enforce was for specifically $37,106.38. FK-& NO (Mikhov Dec., Ex. D.). As Plaintiff predicted in her moving papers, Hyundai is now arguing it NY KN somehow magically picked $37,106.38 for its 998 offer amount but could otherwise never Ww KN reasonably calculate Plaintiffs compensatory damage request to the jury attrial. FF KN As shown above, the compensatory award was either liquidated in this case or atleast was UN KN of being made certain by calculation and there can be no dispute that Hyundai knew at DO capable NH least approximately how much these damages were based on the information in the sales contract, NO oN which was served on Hyundai as an exhibit to Plaintiff's Complaint on October 28, 2016 NO 3 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST Even if HMA disputes civil penalties or incidental damages to support its claim that Plaintiff's damages were uncertain, itdoes not dispute the amount of Plaintiff's compensatory LY damages for the value of the vehicle. The amount of Plaintiff's damages for the purchase price W of the defective vehicle was “capable of being made certain by calculation.” Plaintiff's damages fF involving the purchase of the vehicle was certain from the firstday Plaintiff owned the vehicle as no itwas clearly identified on the purchase contract. The contract provided the price of the vehicle, DB interest rate on the loan, amount of each payment, and number of payments. Thus, Defendant NI that warrant prejudgment interest. Even ifDefendant had wma knew the exact amount of the damages a dispute about the amount of the mileage offset, Defendant stillknew the amount of damages — Co itwas either one amount or another amount, depending on which repair presentation formed the FS © basis of the mileage offset. The rest is just arithmetic. “It is sufficient for the defendant to know FF FT the amount or have the capability to compute it from reasonably available information.” NY SF & Med. Ctr. v. Bonta (2002) 97 Cal.App4th 740, 774.) “The existence of a Ww (Children’s Hosp. FF the parties as to the amount owing under an express contract does not FF bona fide dispute between YF render that sum ‘unliquidated.’” (Rabinowitch v. California Western Gas Co. (1967) 257 FF DH Cal.App.2d 150, 161.) Therefore, even ifthe Court were to accept that HMA did not know all of YF Plaintiff's damages, orthat HMA disputed recovery of some categories of damages, HMA cannot KF HN legitimately claim that itnever knew or could not reasonably calculate Plaintiffs compensatory FY damages . YH ODO C. A Dispute Over Liability Does Not Preclude an Award of Prejudgment Interest NN under 3287(a) and Duale Does Not Control KF in a civil action.” NN “A dispute concerning liabilitydoes not preclude prejudgment interest Neither NH 513,517.) WN (Boehm & Associates v. Workers' Comp. Appeals Bd. (1999) 76 Cal.App.4th WO NN a defendant’s denial of liability nor defendant’s unliquidated claim for offsets makes damages FB NN uncertain for purposes of Civil Code section 3287. (Stein v. Southern California Edison Co. WNW Nat. YB (1992) 7 Cal.App.4th 565; Olson v. Cory (1983) 35 Cal.3d 390, 402; Howard v.American law on the WN Fire Ins. Co., 187 Cal.App.4th 498, 536.) Notwithstanding the wealth of case NO wo particular proposition that a dispute over liability does not preclude prejudgment interest under Oo wb HMA relies almost exclusively on the holding in Duale v. Mercedes-Benz, USA, LLC 3287(a), 4 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST (2007) 148 Cal.App.4th 718, and instead of finding additional cases to support its position, HMA spends two pages trying to distinguish cases that Plaintiff relies upon. Defendant uses Duale for the notion that any time a defendant disputes liability at trial, Dee then prejudgment interest is not available. HMA repeatedly claims that Duale means prejudgment interest isnot recoverable in a Song-Beverly Act case whenever a defendant insists on paying less than the statute requires. Thus, Defendant’s position is that prejudgment interest is never available in any circumstance whatsoever, which then nullifies the entire existence of a corlUMNUUlUlClUCOOUN prejudgment interest award and renders Civil Code section 3287 mere surplusage. Such a result would be contrary to Civil Code section 3541, which codifies the maxim of jurisprudence that, “An interpretation which gives effect is preferred to one which makes void.” The majority of other cases that discusses prejudgment interest in the Song-Beverly Act or with respect to a eS ee HHO breach of express warranty finds that prejudgment interest ispermissible even though liability WD was disputed. What is more, Duale only addresses prejudgment interest under Civil Code section ee 3287(a) but does not address or even mention the recovery of interest under Civil Code section 3287(b). Defendant’s reliance on Duale, to which itrefers as the “seminal case on prejudgment DN interest in the context of Song-Beverly” was expected, but Defendant ignores the fact that this would-be “seminal case” was completely marginalized by the subsequent holding inDoppes v. FN Bentley Motors, Inc. (2009) 174 Cal.App.4" 1004. ODO In Doppes, a Song-Beverly Act case that comes after Duale, the defendant manufacturer RD OD Bentley relied on Duale to exclude prejudgment interest, like HMA does here. The court of RO F& appeal did not find Duale controlling and found that prejudgment interest was proper under YQ NY 3287(a). (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1009-1011.) Critically, VY Ww the defendant in Doppes also disputed liability for the repurchase of the vehicle under the Song- Fe NY Beverly Act. “A jury found that Bentley violated the Song-Beverly Consumer Warranty Act NY and... found Bentley breached express and implied warranties.” (/d. at 1007.) Bentley disputed DUN NY liability and when itfiled a motion to set aside judgment based on the trialcourt’s award of NY prejudgment interest, the court held that “the trial court had jurisdiction to award Doppes oN NO prejudgment interest. Accordingly, the trialcourt did not err in denying Bentley's motion to set > PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST aside the judgment” even though Bentley cited to Duale like HMA does here. (/d. at 1011.) In Jensen, the issue of liability forthe repurchase of the vehicle was also contested. “The YO jury returned a verdict in favor of Jensen and awarded her $29,351 in damages. It also imposed W a $58,702 civil penalty against BMW.” (Jensen v. BMW of North America, Inc. (1995) 35 Fe Cal.App.4th 112, 119.) Despite the dispute over liability, the trial court awarded prejudgment On interest, which was not challenged by the defendant, BMW, in the appeal. (/d.at 137, fn 12.) Do In Lukather, a case which also post-dates Duale by three years, and involved a dispute NIN over liabilityat trial,the court held that the manufacturer “fails to show that the trialcourt abused OH SoS itsdiscretion inawarding prejudgment interest.” (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1053.) O&O lS Sh Defendant’s argument that “Interest only runs from the date of notice to the defendant of FF plaintiff's specific losses[,]” (Deft. ’s Opps’n, pg. 9:12-13) is mistaken in the context of Song- EF NY Beverly Act litigation as well as the Stein case it was misappropriated from by Hyundai here. WY KF the Act, there is no notification requirement whatsoever. “[A]s the Act “stands now, FF Under SF however, the manufacturer has an affirmative duty to replace a vehicle or make restitution to the KF DH buyer if the manufacturer is unable to repair the new vehicle after a reasonable number of repair YF attempts, and the buyer need not reject orrevoke acceptance of the vehicle at any time. The buyer FF HN need only provide the manufacturer with a reasonable opportunity to fix the vehicle.” (Lukather FY ODO v. General Motors (2010) 181 Cal.App.4th 1041, 1050; quoting Krotin v. Porsche Cars North FF DTD America, Inc. (1995) 38 Cal.App.4" 294, 302.) Defendant’s reliance on Stein v. Southern YN (1992) 7 Cal.App.4"" 565, 573 in support of its notice argument is KF California Edison Co. N Stein had nothing to do with the Song-Beverly Act. Stein was a tort action NN misplaced because WN arising from damage to a house in a fire allegedly caused by the power NN based on strict liability over BP company’s modification of a transformer by disabling itscircuit breakers so it could carry HN (Stein v. Southern UN of its normal capacity, which eventually caused itto explode. NHN 200 percent California Edison Co., supra, 7 Cal.App.4" at 567-568.) NH NO contentions would render prejudgment interest never recoverable. NO Accepting Defendant’s Oo then prejudgment interest is not recoverable. NO Defendant insists that if liability is contested, 6 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST Logically however, if liability was not contested, there would be no trial. If liability was not contested, the case would settle and there PPO would be no judgment from which to obtain prejudgment interest. Defendant’s arguments envision the absurd WOW result of having a statute, Civil BP Code section 3287, that provides unattainable relief. D. The Court is Vested With Discretion to Award Prejudgment Interest Under Civil WO Code § 3287(b) In Song-Beverly Act Litigation Even If Damages Are Uncertain DBD Defendant claims that an award of prejudgment interest under Civil Code section 3287 is improper in all Song-Beverly cases. Defendant states “Plaintiff did not sue the dealer, nor did ON she bring a cause of action for breach of contract.” (Def. Opp. p. 2:22-23.) This same sort of So logic, if adopted by the courts, would allow every manufacturer who does not directly contract es CO with a consumer to automatically avoid prejudgment interest on unliquidated claims, regardless KF of the express warranties offered. HPO The purpose of 3287(b) isto award prejudgment interest where it is fairto do so even if Ree W a defendant claims damages were uncertain. Section 3287 "was amended in 1967 to give the trial FF court discretionary authority to award prejudgment interest in contract actions" where the damages are not liquidated. (Rifkin v. Achermann (1996) 43 Cal.App.4th 391, 396.) Section Dn 3287(b) "seeks to balance the concern for fairness to the debtor against the concern for full NH compensation to the wronged party." (Lewis C. Nelson & Sons, Inc. v.Clovis Unified Sch. Dist. FHF (2001) 90 Cal.App.4th 64, 69.) "By itsvery terms, subsection (b) was designed to allow trial ODO courts flexibility in circumstances where the exact amount of damage is in dispute." (A & M TD Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 496; emphasis added.) RD KF In Bishop v. Hyundai (1996) 44 Cal.App.4th 750, 758, the court would not permit DY NY emotional distress damages in Song-Beverly litigation, “because they may not be recovered in Ww YY an action for breach of contract.” (Bishop v.Hyundai (1996) 44 Cal.App.4th 750, 758.) In other fF NY words, the court agreed that such causes of action under Song-Beverly are indeed based upon wn NY contract. Here, the underlying claim isbreach of express warranty — it is a written agreement HD NY where both sides have obligations, e.g. Defendant must repair the vehicle during the warranty ANI NY period and Plaintiff must maintain the vehicle properly to avoid causing problems to the vehicle. mo NO If she fails in her obligation, Defendant’s performance isexcused — likeany other contract. 7 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST Defendant’s main assertion to avoid prejudgment interest under 3287(b) is that because HMA and Plaintiff were not in direct privity of contract, 3287(b) does not apply. However, NO actions for breach of express warranty, and by extension those brought under Song-Beverly for W the same, do not require privity. “When a consumer relies on representations made by a Fe manufacturer in labels or advertising material, recovery is allowable on the theory of express nO warranty without a showing of privity.” (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 DBD Cal.App.3d 951, 957.) “As a general rule, privity of contract isa required element of an express NY breach of warranty cause of action. However, there isan exception where the plaintiffs decision eH to purchase the product was made in reliance on the manufacturers written representations on So labels and advertising materials.” (Fieldstone Co. V. Briggs Plumbing Prods., Inc. (1997) 54 Cal. OC eo App.4th 357 n. 10.) KF Section 3287(b) provides: “Every person who is entitled under any judgment to receive NY damages based upon a cause of action incontract where the claims was unliquidated, may also WD Re FF recover interest thereon from a date prior to the entry of judgment ...”The exact words of this RE HH section are “based upon a cause of action in contract,” and does not state anywhere that the rR HD plaintiff and defendant must be in direct privity of contract inrecover under the section. California courts have not adhered to a strict application of privity for express warranty mm FN claims in products liability cases. (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905.) ODO California also recognizes that an express warranty is“a contractual promise from the seller that TD RO the goods conform to the promise.” (/d. at 928.) The rules for interpretation of express warranties NO KF should not differ from those applied to other contracts. (Daniel v.Ford Motor Co., (2015) 806 NHN Song-Beverly Act was to “to NO F.3d 1217, 1224.) In fact, the entire purpose behind enacting the Ww NNO address difficulties faced by some consumers in enforcing express warranties, by the creation of FF additional remedies, the 'refund-or-replace' provisions and implied warranties, for cases in which KN UN a purchaser's goods cannot be repaired to meet express warranty standards after a ‘reasonable KN AO words, the Act was designed to give consumers a HN number of attempts.” (/d. at 916) In other not live up to their end of the NO contractual remedy against manufacturers who would otherwise oN necessarily indicates that a consumer NO bargain. Hyundai is essentially arguing that lack of privity 8 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST cannot recover prejudgment interest under 3287(b), when the very provisions of the Act itself iy were designed to eliminate this type of argument in the firstplace. Because California recognizes N that an express warranty made by a manufacturer is a “contractual promise,” it thereby follows Ww that this action is sufficiently “based in contract” such that section 3782(b) can and should be 4 , applied in this case, at the discretion of this Court. Nn The court in Mega RV Corp. also indicated the simple requirement for evaluation under a section 3287 (b) isa cause of action in contract, not direct contractual privity. (Mega RV Corp. “I v. HWH CORP (2014) 225 Cal.App.4th 1318, 1330 quoting (American Suzuki Motor Corp. v. oo Superior Court (1995) 37 Cal.App.4th 1291, 1295-96.)) The court also indicates that express \o warranties are viewed as being contractually based by quoting, ““‘[uJnlike 6666 express warranties, So — which are basically contractual in nature ....”“* (/d.) D566 Even ifDefendant’s position on contractual — — privity isagreed with, the court in Afkinson found that a company brought itself into privity of i) _ contract with the ultimate customer through extending its express warranty to that customer. Ww — (Atkinson v.Elk Corp. Of Texas (2006) 142 Cal.App.4th 212, 248.) Thus, by extending itsexpress — _ warranty directly to consumers who purchase new vehicles through its agent dealerships, Nn — Defendant is in contract with the ultimate consumer. Using Defendant’s own argument, ifthe nN _ Court agrees with Atkinson and finds that the extension of an express warranty to the ultimate — — consumer creates a contract between HMA and the consumer, then itclearly has the power to oo —_ award prejudgment interest under 3287(b), should itchoose to do so. \o — Ill. CONCLUSION No oS Accordingly, Plaintiff respectfully requests the Court to award prejudgment interest i) — Civil Code section 3287 in the amount of $25,454.53 because damages were reasonably NO under bd causes of action arise from breach of contract. NO calculable and Plaintiffs Wo KNIGHT LAW GROUP, LLP NO Dated: December 12, 2019 » AAA - Nn NO nN bh z Steve Mikhov bo ~— Attorney for Plaintiff ANNA P. KING oo bh 9 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST PROOF OF SERVICE (Code of Civil Procedure §1013a) YO Iam employed in the County of Los Angeles, State of California. Iam over the age of 18 years and not a party to the within action. My business address is 10250 Constellation Blvd., WW Suite 2500, Los Angeles, CA 90067. ee I served the foregoing documents described as: OH PLAINTIFF’S REPLY TO DEFENDANT HYUNDAI MOTOR AMERICA’S DoD OPPOSITION TO PLAINTIFF’S MOTION FOR PREJUDGMENT INTEREST ON Said documents were served on the interested parties inthis action, by placing true copies thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows: Oo SEE ATTACHED SERVICE LIST lo eR BY OVERNIGHT MAIL/DELIVERY: I caused such envelope to be delivered by hand to KO the office(s) of the addressee(s) via OVERNIGHT EXPRESS or by local courier service. YO OE BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to