Kerley v. Weber

Filed 10/3/18
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO

SARAH L. KERLEY, as Conservator B282202, B283256
and Co-administrator, etc., (Los Angeles County
Plaintiff and Respondent, Super. Ct. No. YS024039
v. & BP097749)

MARCIE ANN WEBER,
Defendant and Appellant.

APPEALS from a judgment and an order of the Superior
Court of Los Angeles County. Stuart M. Rice and William A.
MacLaughlin, Judges. Affirmed in part, reversed in part, and
remanded with directions.
Haney & Young, Gregory L. Young and Steven H. Haney
for Defendant and Appellant.
Hill, Farrer & Burrill, Julia L. Birkel, Dean E. Dennis, and
Clayton J. Hix for Plaintiff and Respondent.
_________________________________
 Marcie Ann Weber appeals from a judgment and an order
in two related actions.1 Both actions concern Weber’s conduct
that resulted in a conviction for theft from an elder or dependent
adult in April 2010. That case (the Criminal Action) was the
subject of a prior appeal in this court. (People v. Weber (Oct. 4,
2013) No. B244008, 2013 Cal.App. Unpub. LEXIS 7156, modified
October 30, 2013, 2013 Cal.App. Unpub. LEXIS 7844 (Weber).)
Weber’s victim was an elderly woman, Philippa Johnston,
who died before the end of the criminal trial. Respondent
Sarah L. Kerley, Johnston’s conservator and the co-administrator
of her estate, filed the two actions underlying this consolidated
appeal.2 In one action (the Probate Action, Superior Court
No. BP097749), Kerley filed a petition under Probate Code section
850 et seq. seeking civil damages against Weber.3 In the other
action (the Restitution Action, Superior Court No. YS024039),
Kerley obtained a judgment based on the $700,000 restitution
award in the Criminal Action (the Restitution Judgment).
In the Probate Action, Weber appeals from the judgment,
which awarded damages equal to twice the amount of the
restitution award (i.e., $1.4 million) under section 859. In the
Restitution Action, Weber appeals from an order for the sale of a
residence to satisfy the Restitution Judgment.

1We ordered the appeals consolidated for purposes of oral
argument and decision.
2 We therefore refer to Kerley in her representative
capacity as the respondent.
3 Subsequent undesignated statutory references are to the
Probate Code.

2
 Although the two actions are separate, Weber makes
duplicative and overlapping arguments in each appeal. She
argues that: (1) the trial court in the Probate Action erred in
entering judgment based upon estoppel theories without
permitting a trial on the actual amount of Johnston’s loss; (2) the
court in the Probate Action erred in concluding that double
damages were permitted under section 859 based upon Weber’s
criminal conviction without a separate finding of bad faith; (3) the
double damages award in the Probate Action should have taken
account of sums that Weber had already paid in restitution; and
(4) restitution payments that Weber made before the restitution
award was reduced to a judgment should have been credited to
the principal amount of the restitution amount rather than to
accumulated prejudgment interest.
We reject all of these arguments except the last. Pursuant
to the terms of a stipulation concerning the amount of restitution
in the Criminal Action, Weber’s prejudgment restitution
payments should have been credited against principal rather
than interest. However, even after adjusting the remaining
principal on the Restitution Judgment to account for prejudgment
payments, Weber apparently still owes a substantial sum.
We therefore remand for the trial court in the Restitution
Action to calculate the amount remaining due on the Restitution
Judgment. Assuming that calculation confirms that an amount
remains due, we affirm the trial court’s order permitting the sale
of Weber’s residence to satisfy the remaining judgment amount.

3
 We affirm the judgment in the Probate Action.4
BACKGROUND
1. Weber’s Conviction and the Restitution
Judgment
After Weber waived jury and agreed to a court trial, she
was convicted of one count of theft from an elder or dependent
adult under Penal Code section 368, subdivision (d). (Weber,
supra, slip opn. at p. 2.) Weber’s victim, Johnston, was an elderly
woman with dementia.5
Weber was a paralegal trained in probate law who obtained
a power of attorney to handle Johnston’s financial affairs. Weber
gave herself a “constant stream of gifts.” Although Weber was a
fiduciary, she did not act on Johnston’s behalf “at all.” Weber and
her family diverted Johnston’s telephone calls and mail and
isolated Johnston from her friends and her sister. Johnston was
“completely dependent upon the Webers” who “completely
isolated her essentially for three years from any outside contact.”
Judge Van Sicklen did not “try[] to analyze the exact
amounts of money” that Weber took. However, by adding the
rough amounts of Weber’s distributions “you come up to about
740 or so thousand dollars” from “money controlled by
Mrs. Weber.” In addition to finding Weber guilty under Penal

4 We take no position on whether the sale of Weber’s
residence may be an appropriate remedy to enforce the judgment
in the Probate Action.
5Facts concerning Weber’s offense are taken from Judge
Van Sicklen’s oral findings in announcing his decision in the
criminal trial on April 28, 2010.

4
Code section 368, subdivision (d), the judge found true that Weber
took property exceeding $150,000 for purposes of a sentencing
enhancement under former Penal Code section 12022.6,
subdivision (a)(2).
Weber was sentenced on October 18, 2010. As part of her
sentence, she was ordered to “make restitution to the victim, the
estate of Lucille Johnston,” pursuant to Penal Code section
1202.4, subdivision (f), “in an amount to be determined.”
At a restitution hearing on December 3, 2010, the parties
informed the court that they had agreed on a restitution amount
of $700,000. The parties stated that prior restitution payments
that Weber had made would be set off against that amount,
leaving a principal balance of $414,545.99.
Kerley subsequently filed the Restitution Action to enforce
the restitution award. On July 11, 2012, Kerley obtained an
“order for restitution and abstract of judgment” in that action for
the $700,000 restitution amount pursuant to Penal Code section
1214 (the Restitution Judgment). The order also awarded 10
percent annual interest from March 15, 2006, the date of the loss.
Weber appealed the award of interest. In Weber, this court
held that the interest award was proper. We concluded that
interest was mandatory under Penal Code section 1202.4,
subdivision (f)(3)(G). (Weber, supra, slip opn. at p. 5.) We further
held that the July 2012 Restitution Judgment was a “valid
modification of the restitution order.” (Id. at p. 6.)6

6 We noted that, in stating that the restitution amount was
$700,000, the Restitution Judgment was “intended to summarize
the total amount of restitution awarded” and did not “purport to

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 On April 14, 2017, the trial court issued an order for the
sale of a Manhattan Beach residence belonging to Weber to
enforce the Restitution Judgment. That order is the subject of
this appeal.
2. The Probate Action
Kerley originally filed the Probate Action in 2006, seeking
recovery of the money that Weber and family members took from
Johnston along with enhanced damages pursuant to section 859.
After extensive pretrial proceedings, the action was set for trial.
In ruling on pretrial motions in limine, the trial court
decided that the results of the criminal trial and Weber’s
stipulation to the amount of restitution essentially resolved all
the issues for trial. As a result of that ruling, trial took less than
an hour.
The court issued a written decision on April 4, 2017. The
court found that Weber’s criminal conviction established all the
elements of elder abuse under Welfare & Institutions Code
section 15610.30. The court also found that, based on her
stipulation to the $700,000 restitution amount, Weber was
estopped from claiming that she took less than that amount from
Johnston. Based upon Kerley’s agreement that damages could be
calculated based upon that amount of loss, the trial court
awarded double damages in the amount of $1.4 million under
section 859.

abrogate the stipulation with respect to the offset.” (Weber,
supra, slip opn. at p. 9, fn. 4.)

6
 The court subsequently issued a judgment in that amount,
plus an award of attorney fees and costs.7 The judgment noted
that the compensatory damages awarded against Weber in the
Restitution Action “of $700,000.00 plus interest, are not a
component of this Judgment and are within the jurisdiction of
that court.”
DISCUSSION
1. The Trial Court in the Probate Action Correctly
Ruled That Weber Is Estopped From Contesting
Liability or the Amount of Johnston’s Loss
The trial court in the Probate Action was correct in deciding
that, under principles of collateral estoppel, Weber’s conviction
under Penal Code section 368, subdivision (d) established her
civil liability for elder financial abuse under Welfare and
Institutions Code section 15610.30. Under the doctrine of
collateral estoppel, any issue that is “necessarily decided” in prior
litigation “ ‘is conclusively determined as to the parties or their
privies if it is involved in a subsequent lawsuit on a different
cause of action.’ ” (Teitelbaum Furs, Inc. v. Dominion Ins. Co.
(1962) 58 Cal.2d 601, 604, quoting Bernhard v. Bank of America
Nat’l Trust & Sav. Asso. (1942) 19 Cal.2d 807, 810.) Because the
relevant facts are not in dispute here, we independently review
the trial court’s decision to apply collateral estoppel. (Roos v. Red
(2005) 130 Cal.App.4th 870, 878 (Roos).)

7 On December 14, 2017, the court issued a second amended
judgment that included attorney fees in the amount of
$978,698.41 and costs of $162,381.25. We grant Kerley’s request
to take judicial notice of this judgment.

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 Applying collateral estoppel to establish liability in a civil
case based upon a prior felony conviction is appropriate when the
prior criminal case established all the elements of the civil claims.
(Miller v. Superior Court (1985) 168 Cal.App.3d 376, 381–382.)
Here, in finding Weber guilty under Penal Code section 368,
subdivision (d) the trial court necessarily found all the elements
of financial abuse of an elder under Welfare and Institutions Code
section 15610.30.
Civil liability for financial abuse of an elder may be
established by proof that a person “[t]akes, secretes, appropriates,
obtains, or retains real or personal property of an elder . . . for a
wrongful use or with intent to defraud, or both.” (Welf. & Inst.
Code, § 15610.30, subd. (a)(1).) An elder is any California
resident over 65 years old. (Welf. & Inst. Code, § 15610.27.) In
finding Weber guilty, the trial court necessarily found that Weber
committed “theft, embezzlement, forgery, or fraud,” with respect
to the property of an elder (which Penal Code section 368,
subdivision (g) also defines as a person over 65). (Pen. Code,
§ 368, subd. (d).) Thus, Weber’s criminal conviction established
all the elements for liability under Welfare and Institutions Code
section 15610.30.
The trial court also correctly ruled that collateral estoppel
precluded Weber from arguing that she took less than $700,000
from Johnston. Johnston admitted that she took at least that
amount by stipulating to the restitution award.
Weber argues that the restitution amount was not a “sum
adjudicated” but was simply “a sum that . . . Weber settled upon
to pay in the criminal case.” This ignores that the stipulated
restitution amount was reduced to an order that was equivalent
to a judgment. (See Pen. Code, § 1202.4, subd. (i) [“A restitution
order imposed pursuant to subdivision (f) shall be enforceable as

8
if the order were a civil judgment”]; Pen. Code, § 1214, subd. (b)
[“the order to pay restitution . . . is deemed a money judgment if
the defendant . . . stipulated to the amount of the restitution
ordered”].) Findings on issues that are “actually and necessarily
included” in a judgment may be given collateral estoppel effect,
regardless of whether the judgment is the result of a stipulation.
(Code Civ. Proc., § 1911; Wittman v. Chrysler Corp. (1988) 199
Cal.App.3d 586, 591–592.) The stipulated Restitution Judgment
in this case necessarily decided that Weber stole at least $700,000
from Johnston.8
The trial court also properly applied the doctrine of judicial
estoppel to establish that Weber stole at least $700,000. The
doctrine of judicial estoppel “prohibits a party from asserting a
position in a legal proceeding that is contrary to a position he or
she successfully asserted in the same or some earlier proceeding.”
(Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 121
(Owens).)
The elements of judicial estoppel are: “ ‘(1) the same party
has taken two positions; (2) the positions were taken in judicial or
quasi-judicial administrative proceedings; (3) the party was

8 The Penal Code provision under which the trial court
ordered restitution authorizes restitution for losses beyond money
that is actually taken from the victim. (Pen. Code, § 1202.4, subd.
(f)(3)(A)–(K).) However, that provision also directs a trial court to
identify, to the extent possible, each loss to which the restitution
order pertains. (Pen. Code, § 1202.4, subd. (f)(3).) The trial court
did so here in its order for restitution and abstract of judgment
entered on July 11, 2012. The only loss identified in that order
was for the “value of property stolen or damaged.”

9
successful in asserting the first position (i.e., the tribunal adopted
the position or accepted it as true); (4) the two positions are
totally inconsistent; and (5) the first position was not taken as a
result of ignorance, fraud, or mistake.’ ” (Owens, supra, 220
Cal.App.4th at p. 121, quoting Jackson v. County of Los Angeles
(1997) 60 Cal.App.4th 171, 181.) If these elements are met, a
trial court has discretion in whether to apply the doctrine.
(Owens, at p. 121.)
An appellate court reviews the findings of fact on which the
application of judicial estoppel is based under the substantial
evidence test. (Owens, supra, 220 Cal.App.4th at p. 121.) If the
relevant facts are undisputed, the appellate court independently
reviews whether the elements of judicial estoppel are met. (Ibid.)
The trial court’s discretionary decision whether to apply the
doctrine is of course reviewed for abuse of that discretion. (Ibid.)
All the elements of judicial estoppel are met here. Weber’s
stipulation to the amount of restitution was a litigation position
that Weber adopted concerning the amount of Johnston’s loss.
Weber was successful in asserting that position when the trial
court in the Criminal Action accepted the stipulation. And, as the
trial court in the Probate Action pointed out, Weber obtained a
benefit from that position, because the evidence in the Criminal
Action could have supported a larger restitution award based on
the money that Weber took from Johnston.9 Finally, Weber’s
stipulation that she took $700,000 from Johnston was totally
inconsistent with her position in the Probate Action that the

9 As mentioned, the trial court in the Criminal Action
identified losses of about $740,000.

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amount she stole was less. We find no error in the trial court’s
decision that the elements of judicial estoppel are present here,
and no abuse of discretion in the court’s decision to apply judicial
estoppel based upon these facts.
Weber argues that the trial court’s ruling precluding her
from contesting liability and damages erroneously deprived her of
her right to a jury trial in the Probate Action. We reject that
argument on several grounds.
First, Weber was not denied a jury trial on the issue of
liability. Weber had a right to a jury trial in the Criminal Action,
which she waived. (Weber, supra, slip opn. at p. 2.) Applying the
results of that trial to the Probate Action under principles of
collateral estoppel simply precludes her from relitigating an issue
that she already had a full and fair opportunity to contest in a
jury trial if she had chosen to do so.
Second, if the elements of collateral estoppel are met,
judicial rulings from prior proceedings in criminal actions may be
given preclusive effect in a subsequent civil case without violating
the jury trial right. As a general rule, “notwithstanding the state
constitutional jury trial guarantee, the lack of a jury trial on
contested factual issues in one proceeding does not preclude
application of collateral estoppel in a subsequent proceeding.”
(See Roos, supra, 130 Cal.App.4th at p. 881, citing People v. Sims
(1982) 32 Cal.3d 468, 484, fn. 13.) In McGowan v. City of
San Diego (1989) 208 Cal.App.3d 890, the court held that
collateral estoppel may be applied in a civil action to determine
issues that were decided in a prior judicial ruling on a motion to
suppress in a criminal case. (Id. at p. 895.) Citing Parklane
Hosiery Co., Inc. v. Shore (1979) 439 U.S. 322, 337, the court
rejected the claim that arguments concerning monetary damages
could not be collaterally estopped by such a ruling because doing

11
so would deny the estopped party’s jury trial right. (McGowan, at
p. 897.) Similarly, here, a prior stipulated judicial order on the
amount of loss in the Criminal Action, later reduced to a
judgment, may be given collateral estoppel effect despite Weber’s
jury trial right in the Probate Action.
Third, as discussed above, the doctrine of judicial estoppel
applies to positions taken in any prior judicial or quasi-judicial
administrative proceeding. (Owens, supra, 220 Cal.App.4th at
p. 121.) The doctrine is intended to “maintain the integrity of the
courts and to protect the parties from unfair strategies.” (Ibid.)
That principle applies whether or not the first proceeding
included a jury trial right.
Weber also argues that the court’s decision to preclude her
under estoppel principles from trying the amount of Johnston’s
loss was erroneous because the decision conflicted with a prior
ruling by another judge on summary judgment. There was no
error. A trial court has inherent authority to revisit its rulings on
a summary judgment motion and to reach a different conclusion
in subsequent proceedings. (Le Francois v. Goel (2005) 35 Cal.4th
1094, 1107.)
Weber’s argument that Kerley’s success in obtaining the
Restitution Judgment precluded her from pursuing the Probate
Action is similarly meritless. Weber claims that separate
judgments for the restitution award and for damages in the
Probate Action violate the general rule against multiple
judgments concerning the same obligation. Weber cites Vigilant
Ins. Co. v. Chiu (2009) 175 Cal.App.4th 438 (Vigilant) for the
proposition that a victim of a crime must elect whether to accept
a judgment for criminal restitution or pursue a separate civil
action for damages.

12
 Weber misreads Vigilant. That case actually holds that a
victim has a right to both restitution and a separate civil
judgment. (See Vigilant, supra, 175 Cal.App.4th at p. 445 [“Since
restitution orders and civil judgments are issued for different
purposes, a victim suffering from economic losses as a result of a
criminal act has a right to both”].) Vigilant recognized that a
duplicate recovery for the same losses would be improper. (See
id. at p. 446, citing Pen. Code, § 1202.4, subd. (j).) But duplicate
recovery is not an issue here, as the judgment in the Probate
Action specifically excluded the amount awarded in restitution.
2. No Separate Bad Faith Finding Was Necessary
Here for Double Damages Under Section 859
Weber argues that the trial court erred in not permitting a
trial on the issue of whether she acted in bad faith. We reject the
argument based upon the language of section 859.
Section 859 provides, in relevant part, that: “[i]f a court
finds that a person has in bad faith wrongfully taken, concealed,
or disposed of property belonging to a conservatee, a minor, an
elder, a dependent adult, a trust, or the estate of a decedent, or
has taken, concealed, or disposed of the property by the use of
undue influence in bad faith or through the commission of elder
or dependent adult financial abuse, as defined in Section
15610.30 of the Welfare and Institutions Code, the person shall
be liable for twice the value of the property recovered by an action
under this part. . . . The remedies provided in this section shall
be in addition to any other remedies available in law to a person
authorized to bring an action pursuant to this part.” (Italics
added.)
Thus, section 859 uses three different clauses separated by
the conjunction “or” to describe three different categories of
conduct that can support double damages: (1) taking property in

13
bad faith; (2) taking property by the use of undue influence in bad
faith; and (3) taking property through elder or dependent adult
abuse as defined in Welfare and Institutions Code section
15610.30. Because the third clause applied here, no separate
finding of bad faith was necessary. (See Hill v. Superior Court
(2016) 244 Cal.App.4th 1281, 1287 [“the last alternative of section
859 allows for double damages without any requirement that
petitioners show any aggravated misconduct—only financial elder
abuse”].)
As discussed above, Weber’s prior criminal conviction
established all the elements of liability under Welfare and
Institutions Code section 15610.30. The trial court therefore
properly awarded damages equal to twice the $700,000 that
Weber stipulated she took from Johnston. (See Estate of Kraus
(2010) 184 Cal.App.4th 103, 106 [affirming judgment ordering the
return of $197,402 to an estate as well as statutory double
damages of $394,804].)10

10 Section 859 authorizes damages of “twice the value of the
property recovered by an action under this part [i.e., sections 850–
859].” (§ 859, italics added.) Thus, the trial court was not quite
accurate in stating in its written decision that section 859
authorizes statutory damages “for twice the value of the property
taken.” However, in the context of this case the difference
between the amount of “property taken” and the “value of the
property recovered by an action under this part” is immaterial.
(Ibid.) Kerley initially sought to recover Johnston’s actual loss
under section 850 along with double that amount under section
859. The trial court’s decision in the Probate Action clearly
determined that Kerley was entitled to recover the $700,000 that
Weber took from Johnston. That amount of actual loss was

14
3. The Trial Court Did Not Err in Calculating
Damages Under Section 859 Based on the Total
Amount of Money That Weber Stole
Weber argues that the trial court should have deducted
some or all of the money that she paid in restitution before
calculating double damages under section 859. We disagree.
Weber cites no support for an interpretation of section 859
that would permit a wrongdoer to avoid the statutory penalty of
double damages by beginning to make restitution after a criminal
conviction. The payments that Weber made were hardly
voluntary; restitution was required after her conviction. (Pen.
Code, § 1202.4, subd. (f).) The interpretation that she suggests
would be inconsistent with the purpose of section 859 to punish
and deter the wrongdoer. (Estate of Young (2008) 160
Cal.App.4th 62, 88.)
4. Restitution Payments That Weber Made Before
the Restitution Judgment Should Have Been
Credited Against Principal Rather Than
Prejudgment Interest
The trial court in the Restitution Action rejected Weber’s
argument that her residence should not be sold to satisfy the
Restitution Judgment because the judgment had already been
fully satisfied. The court found that Weber’s payment

excluded from the final judgment in the Probate Action only to
avoid a double recovery, as the restitution judgment already gave
Kerley the right to recover the $700,000. In light of this
procedural history and the trial court’s decision, the stipulated
$700,000 restitution sum amounted to “property recovered by an
action under this part.” (§ 859.)

15
calculations “fail to account for payments that must be applied to
interest but instead credits all pre-2012 payments against the
principal.”
Weber argues that the payments she made before the
Restitution Judgment was entered should have been applied to
principal rather than prejudgment interest. Weber claims that, if
those payments are credited against principal, she has already
paid the amount of the judgment.
Kerley argues that the prejudgment payments were
properly applied to prejudgment interest, not principal, but that
even if those payments are credited to principal Weber still owes
money on the judgment. Kerley claims that Code of Civil
Procedure section 695.220, subdivision (b) requires that Weber’s
payments be applied first against prejudgment interest and then
to the principal amount owing. Because this is a legal issue, we
review it de novo. (Lozada v. City and County of San Francisco
(2006) 145 Cal.App.4th 1139, 1149.)
Code of Civil Procedure section 695.220 provides that
“[m]oney received in satisfaction of a money judgment” should
first be applied to fees and accumulated interest. (Code Civ. Proc.
§ 695.220, subds. (a)–(c).) Thereafter, “[a]ny remaining money is
to be credited against the principal amount of the judgment
remaining unsatisfied.” (Code Civ. Proc., § 695.220, subd. (d).)
Payments made before a judgment is entered may be
payments on an existing debt, but they cannot be payments “in
satisfaction” of a judgment that does not yet exist. In Roden v.
AmerisourceBergen Corp. (2010) 186 Cal.App.4th 620 (Roden), the
court held that Code of Civil Procedure section 695.220 did not
control the application of payments made before a judgment was
entered. (Id. at pp. 661–662.) Rather, the issue of whether those
payments should be applied against interest or principal was

16
governed by Civil Code section 1479, which applies “[w]here a
debtor under several obligations to another, does an act, by way
of performance, in whole or in part, which is equally applicable to
two or more of such obligations.” (Ibid.)
Civil Code section 1479 provides that a debtor may specify
how his or her “performance” should be credited by
communicating his or her intention to the creditor at the time of
performance. In the absence of such a specification, the creditor
may choose to apply a payment to any obligation then due. Only
if “neither party makes such application within the time
prescribed herein” do default rules apply which require payments
to be credited first against interest due and then to principal.
(Ibid.)
In Roden, the court applied these rules in holding that a
prejudgment payment made by a party should be credited against
principal and interest in the fashion that the party specified when
it made the payment. (Roden, supra, 186 Cal.App.4th at p. 662.)
That same principle applies here.
The record in this case reflects the parties’ agreement that
Weber’s payments prior to the Restitution Judgment should be
credited against principal. In informing the court at the
December 3, 2010 hearing that the parties had agreed to the
restitution amount of $700,000, the parties explained that Weber
“is entitled to off set for the cashier’s check she’s already tendered
in the total amount of $285,454.01, leaving a balance due of
$414,545.99.” The parties also stated on the record that the
lawyer for Johnston’s estate had agreed to that amount. The
court’s minute order confirms that “[t]he parties agree that there
is an off set for the money previously paid in the amount of
$285,454.01 . . . leaving a balance of $414,545.99.”

17
 The parties’ agreement to the set off is consistent with the
fact that, until the July 2012 Restitution Judgment was entered,
the restitution award did not include interest. (Weber, supra, slip
opn. at p. 4.) The Restitution Judgment in fact was a
“modification of the restitution order” reflecting the statutory
requirement for an award of interest. (Id. at p. 6.) Because no
obligation had yet been imposed for prejudgment interest at the
time of Weber’s prejudgment payments, the parties obviously
understood that those payments would be credited against the
principal amount of the restitution award.
The parties’ stipulation that Weber’s prejudgment
payments should be set off against principal reflects the
understanding of both debtor and creditor concerning how
Weber’s “performance should be applied” under Civil Code section
1479. We therefore conclude that, pursuant to that section,
Weber’s prejudgment payments should be credited against
principal rather than interest.
The parties dispute the effect of this ruling. As mentioned,
Weber claims that, if her prejudgment payments are credited
against principal, she has already satisfied the judgment. Kerley
claims that “Weber’s calculations omit prejudgment interest
entirely.”11 Kerley submits a calculation as an exhibit to her
brief determining the amount remaining on the judgment as of
October 5, 2016 (the date the writ of execution was issued).

11Kerley is correct in arguing that Weber is precluded from
arguing that pretrial interest from the date of loss is improper.
That issue was decided against Weber in this court’s prior opinion
in Weber, supra, B244008.

18
 Assuming that the payment dates and amounts and
accumulated interest calculations on Kerley’s exhibit are correct,
the exhibit appears to be methodologically sound. However, in
light of the factual dispute between the parties on the effect on
the amount owed of crediting prejudgment payments to principal,
we leave to the trial court to determine whether a sum remains
owing on the Restitution Judgment and, if so, the amount of that
sum.
DISPOSITION
1. The judgment in the Probate Action, Los Angeles
Superior Court No. BP097749, is affirmed.
2. The trial court’s April 14, 2017 order for the sale of a
dwelling in the Restitution Action, Los Angeles Superior Court
No. YS024039, is reversed with respect to the trial court’s ruling
that Weber’s restitution payments prior to the entry of the
Restitution Judgment on July 11, 2012, should be credited
against prejudgment interest. The case is remanded to the trial
court with directions to calculate the amount remaining on the
Restitution Judgment after crediting Weber’s payments prior to
July 11, 2012, to the principal amount of the restitution
obligation. If that calculation confirms that money remains
owing on the Restitution Judgment, Kerley may proceed with the

19
sale of Weber’s residence. In all other respects the trial court’s
order is affirmed.
The parties are responsible for their own costs on appeal.
CERTIFIED FOR PUBLICATION.

LUI, P. J.
We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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