Frasier v. Hanson

Filed 8/29/06 Frasier v. Hanson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Elihu M. Berle, Judge. Affirmed.

Brenda C. Andrade; Steven R. Andrade; Lascher & Lascher and Wendy C. Lascher for Plaintiff and Appellant.

Thelen Reid & Priest, Curtis A. Cole, Kenneth R. Pedroza and Brian M. Hom for Defendant and Respondent.

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This is the third appeal in a twice-tried medical malpractice case. On the first appeal, we found prejudicial instructional error and reversed a verdict in favor of the plaintiff. (Frasier v. Hanson (Nov. 1, 2001, B143936 [nonpub. opn.], Frasier I.) On the second appeal, we affirmed a verdict in favor of the plaintiff and against the only remaining defendant, a doctor. (Frasier v. Hanson (Feb. 3, 2005, B169179) [nonpub. opn.] Frasier II.) On remand after the second appeal, the plaintiff asked for additional interest pursuant to Code of Civil Procedure section 998, but the trial court denied the request.[1] The plaintiff appeals, challenging the interest calculation. We affirm.

FACTS

A.

In 1995, six-year-old Daniel Lynn Frasier, Jr., suffered permanent injuries during surgery. In 1998, Daniel sued his surgeon, Bruce Hanson, M.D., and others for medical malpractice damages. Dr. Hanson answered and discovery ensued.

In August 1999, Daniel served Dr. Hanson with a statutory offer to settle for $799,000. (§ 998.) Dr. Hanson did not accept the offer, but the other defendants settled with Daniel for $1.06 million and the trial court determined the settlements were made in good faith.

The case was first tried to a jury in 2000, at which time the jury fixed Daniel’s damages at about $5.5 million and found Dr. Hanson was 100 percent at fault for Daniel’s injuries. As noted above, we reversed. (Frasier I, typed opn. at pp. 6-7, 10-17.)

In 2003, the case was retried, at which time the jury found Dr. Hanson was negligent, allocated 34.6 percent of the fault to Dr. Hanson, and awarded damages to Daniel as follows:

For pain and suffering, $7,205,750

For past medical expenses, $170,000

For the present value of future medical care, $5,291,505

For the present value of lost future earnings, $857,529

The trial court entered a judgment on the jury’s verdict, ordering periodic payments for Daniel’s future care for 60.3 years, beginning in 2003 (a total of $29,652,321); periodic payments for Daniel’s future lost earnings beginning in 2008 and continuing to 2045 (a total of $3,140,778); “pre-trial interest pursuant to Civil Code section 3291” in the amount of $1,604,239.50; and costs of suit to be determined at a later date. ~(CT 1838-1844)~

Dr. Hanson appealed and we affirmed. (Frasier II, typed opn. at pp. 5-17.) Remittitur issued on April 8, 2005.

B.

On April 21, 2005, Daniel filed a motion for entry of judgment after remittitur in which he claimed that, under section 998, he was entitled to interest for the time the case was pending on appeal, calculated on a gross judgment of $5,509,034. According to Daniel, he arrived “at this number by adding together the present day value of the jury’s award for future economic losses and future loss of earnings to the pain and suffering award and past medical bills. From this total, [Daniel] deducted $896,500, which represents the set off for settlement by other defendants.” In addition, Daniel asked for 10 percent post-judgment interest on his $386,651 cost award, for the missed monthly payments since July 23, 2003, and for his costs on appeal. Daniel acknowledged that he was not “entitled to interest of any kind on the Section 998 prejudgment interest which was part of his award.”

On the same day Daniel’s motion was filed, Dr. Hanson paid $2,576,490.25 to Daniel, allocating the payment as follows:

1. $1,604,239.50 for prejudgment interest (the amount stated in the judgment based on section 998).

2. $500,508.52 for the periodic payments that had not been made while the appeal in Frasier II was pending.

3. $52,358.31 for interest on Item #2;

4. $386,651 for costs awarded on June 14, 2004; and

5. $32,732.92 for interest on Item #4.

Dr. Hanson opposed Daniel’s motion, contending Daniel was not entitled to the additional $1 million in interest sought by his motion because none of the other amounts awarded by the judgment were due (the unpaid amounts are future periodic payments).

The trial court denied the motion and Daniel’s appeal is from that order.

DISCUSSION

Daniel contends he was “entitled to $961,436.89 in penalty interest at the time he made his post-appeal motion,” of which Dr. Hanson paid only $52,358.31, leaving a balance due of $909,758.58 (he is not claiming “penalty interest” for the cost award). The essence of Daniel’s contention is that Civil Code section 3291 gives him prejudgment interest on the total amount of the judgment, including the period of time when the judgment was pending on appeal in Frasier II. He is mistaken.

While it is true that prejudgment interest under Civil Code section 3291 continues to accrue while an appeal is pending, it only accrues “until the satisfaction of judgment.” (Steinfeld v. Foote-Goldman Proctologic Medical Group, Inc. (1996) 50 Cal.App.4th 1542, 1550.) Within days after remittitur issued, the judgment was satisfied as to all amounts due at that time, plus interest to the date of payment, and no interest was owed for future periodic payments. (Deocampo v. Ahn (2002) 101 Cal.App.4th 758, 775-776; Schiernbeck v. Haight (1992) 7 Cal.App.4th 869, 872-874.) Daniel is not entitled to anything more under section 998 because the interest due under that statute was included in the judgment and paid by Dr. Hanson. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 533 [a plaintiff is not entitled to interest on an award of prejudgment interest].) That’s really all there is to it.

DISPOSITION

The order (judgment) is affirmed. The parties are to pay their own costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

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[1] Undesignated section references are to the Code of Civil Procedure.