Filed 11/30/20 Kerley v. Weber CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
SARAH L. KERLEY, as B297370
Administrator, etc.,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. YS024039)
v.
MARCIA ANN WEBER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Deirdre H. Hill, Judge. Affirmed.
Haney & 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.
_________________________________
Marcia Ann Weber appeals from a postjudgment order
concerning the amount that she currently owes on the judgment.
The judgment at issue is for restitution that Weber owes
following her criminal conviction for theft from an elder under
Penal Code section 368, subdivision (d). On appeal from the
restitution order, this court affirmed the trial court’s decision to
award prejudgment interest on the restitution amount. (People v.
Weber (Oct. 4, 2013, No. B244008 [nonpub. opn.], mod. Oct. 13,
2013 (Weber I).)
The victim’s then-conservator, Sarah L. Kerley,1 filed this
action to enforce the judgment that the Estate obtained for the
restitution amount (the Restitution Judgment). The Estate
obtained an order to sell Weber’s residence to satisfy the
Restitution Judgment. Weber appealed from that order.
In that appeal, we held that the restitution payments
Weber made prior to entry of the Restitution Judgment should be
credited to the principal amount of the judgment rather than to
accrued interest. (See Kerley v. Weber (2018) 27 Cal.App.5th
1187, 1200–1201 (Weber II).) We remanded and directed the trial
court to calculate the amount remaining on the Restitution
Judgment after crediting prejudgment payments to principal.
(Ibid.) Following remand, the trial court did so.
Weber now appeals from the trial court’s order calculating
the judgment amount. Weber argues that: (1) she was entitled
to a jury trial concerning that calculation; (2) the trial court
improperly included prejudgment interest in the amount of the
1The victim, Philippa Johnston, died during the criminal
prosecution. Her estate, administered by Kerley (Estate), is the
respondent in this appeal.
2
Restitution Judgment for purposes of calculating postjudgment
interest; and (3) the trial court should have credited
postjudgment payments to principal before interest. We reject all
three arguments and affirm.
BACKGROUND
1. The Restitution Judgment
We briefly summarize only the facts relevant to this appeal.
A more complete factual and procedural background is set forth
in Weber I, supra, B244008, and Weber II, supra, 27 Cal.App.5th,
1187.
Following Weber’s conviction, Weber and the prosecution
agreed to a total restitution amount of $700,000, which they
stipulated should be reduced to $414,545.99 to account for
restitution payments that Weber had already made. (Weber II,
supra, 27 Cal.App.5th at pp. 1192, 1200.) On July 11, 2012, the
Estate obtained the Restitution Judgment. (Id. at p. 1192.) That
judgment ordered restitution to the Estate in the amount of
$700,000 “plus interest at 10 percent per year from the date of
loss” (i.e., March 15, 2006).2
In Weber I, this court upheld the award of prejudgment
interest in the Restitution Judgment even though the court in the
criminal prosecution did not mention interest in the original
restitution order. We concluded that interest was mandatory
under Penal Code section 1202.4, and that the Restitution
2 The $700,000 amount represented the “ ‘total amount of
restitution awarded,’ and did not ‘purport to abrogate the
stipulation with respect to the offset’ ” for the restitution amounts
that Weber had already paid. (Weber II, supra, 27 Cal.App.5th at
p. 1192, fn. 6, quoting Weber I.)
3
Judgment was a “ ‘valid modification of the restitution order.’ ”
(Weber II, supra, 27 Cal.App.5th at p. 1192, quoting Weber I.)
The Estate filed the Restitution Action to enforce the
Restitution Judgment. The Estate sought an order for the sale of
a house in Manhattan Beach belonging to Weber. The trial court
granted that order. In calculating the amount due on the
Restitution Judgment in its order for the sale, the court credited
Weber’s prejudgment restitution payments to accrued
prejudgment interest rather than to the $700,000 principal.
(Weber II, supra, 27 Cal.App.5th at pp. 1192, 1199.) Weber
appealed from that order.
2. The Probate Judgment
The Estate also pursued a separate action against Weber
under the Probate Code (the Probate Action). Among other
things, the Estate sought enhanced damages under Probate Code
section 859. (Weber II, supra, 27 Cal.App.5th at p. 1193.)
The Estate obtained a judgment in the Probate Action for
$1.4 million—twice the amount of the restitution award—plus
attorney fees and costs (the Probate Judgment). (Weber II, supra,
27 Cal.App.5th at p. 1193.) Weber appealed that judgment.
3. Weber II
Weber II considered the consolidated appeals in the
Restitution Action and the Probate Action. We affirmed the
Probate Judgment in full. (Weber II, supra, 27 Cal.App.5th at
p. 1201.) We also affirmed the Restitution Judgment in all
respects except for the trial court’s ruling crediting Weber’s
prejudgment restitution payments to accrued interest rather
than to principal. We concluded that the interested parties had
agreed to credit the prejudgment payments to principal rather
than to interest, and we gave effect to that agreement under Civil
4
Code section 1479. (Weber II, supra, 27 Cal.App.5th at pp. 1199–
1200.) We ordered the Restitution Action 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.” (Id. at p. 1201.)
4. Proceedings on Remand
Following remand, the Estate filed a “Motion After
Remittitur to Determine the Balance Owed on the Judgment and
for Issuance of Amended Order for Sale of Dwelling.” The motion
was supported by a declaration from a certified public
accountant, Brandy Ungar, calculating the amount due on the
Restitution Judgment after crediting Weber’s prejudgment
restitution payments to principal rather than to interest.
Ungar applied Weber’s restitution payments to principal
until July 11, 2012, the date of the Restitution Judgment. As of
that date, the remaining principal amount was $398,545.99 and
the accrued prejudgment interest was $381,558.81. Ungar
combined those two amounts into a total judgment amount of
$780,104.80.
Ungar then credited Weber’s postjudgment payments first
to postjudgment interest and then to the principal amount of
$780,104.80. This resulted in a total amount of $639,383.04 due
on the Restitution Judgment as of the date of the Estate’s motion
(Jan. 9, 2019), consisting of $441,122.39 in principal and
$198,260.65 in accrued postjudgment interest.
Weber opposed the Estate’s motion. Weber argued that she
was entitled to a jury trial on the issue of the amount due under
the Restitution Judgment. She also argued that Ungar’s
methodology was incorrect.
5
Weber submitted a declaration from her own expert
accountant, Jacqueline Benyamini. Unlike Ungar, Benyamini
did not combine the outstanding principal and the accrued
prejudgment interest to compute a new principal amount for the
Restitution Judgment. And she credited all of Weber’s
restitution payments—both before and after the Restitution
Judgment—first to principal and then to accrued interest.
This methodology resulted in the conclusion that Weber
had completely paid off the principal amount of the Restitution
Judgment by July 2013, when Weber made a large payment of
$389,000. Benyamini calculated a remaining interest amount of
$398,858 at that time, which Weber’s subsequent payments
reduced to $359,858 at the time of the Estate’s motion.3
The trial court granted the Estate’s motion. The trial court
rejected Weber’s argument that she was entitled to a jury trial.
The trial court also accepted Ungar’s methodology for calculating
the amount due on the Restitution Judgment. The court
concluded that “post judgment interest accrues on the full
amount of the judgment which judgment necessarily included
prejudgment interest.” Consistent with Ungar’s calculations, the
court found that the “principal remaining on the civil judgment
as of January 9, 2019, is $441,122.30 plus accrued interest of
$198,383.04, for a total of $639,383.04, with interest accruing
from January 9, 2019, at the rate of $120.85 per day.”
3 Thus, even under Weber’s methodology, she still owed a
significant amount of accrued interest on the Restitution
Judgment at the time of the Estate’s motion. Weber’s assertion
in this appeal that she “overpaid and, as a result, her home
cannot be sold,” is therefore puzzling.
6
DISCUSSION
1. Weber’s Appeal is Not Moot
The Estate argues that Weber’s appeal is moot because the
Restitution Judgment has now been satisfied. The Estate
requested, and we granted, judicial notice of documents showing
that, during this appeal, the Estate obtained an order in the
Probate Action for the sale of Weber’s house. That sale resulted
in a credit that satisfied the Restitution Judgment.
The noticed documents show that, in ordering the sale of
Weber’s house, the court in the Probate Action identified the
Restitution Judgment as a senior lien to be satisfied from the sale
proceeds. The court’s order stated that the amount of the lien
was $639,383.04—the full amount that the trial court ruled was
owed on the Restitution Judgment.
It appears that the amount due on the Probate Judgment
before the sale was $2,844,427.49, and that the house sold for
$1,395,000. Thus, the sale of Weber’s house satisfied the
Restitution Judgment, but was apparently not sufficient to
satisfy the Probate Judgment.
Satisfaction of the Restitution Judgment does not moot this
appeal. If successful, Weber’s appeal could reduce the amount
that should have been credited toward the lien for the Restitution
Judgment from the sale of Weber’s house. That would in turn
increase the amount that the Estate should have received from
the sale as payment on the Probate Judgment.
Thus, the issue raised in this appeal—whether the trial
court correctly calculated the amount owed on the Restitution
Judgment—could have an effect on Weber’s current obligation on
the Probate Judgment. There is no indication in the record that
the Estate has forgiven any amount of that judgment.
7
The fact that the Restitution Judgment has now been
satisfied through an involuntary sale on a writ of execution would
not preclude Weber from seeking a remedy for an overpayment
on the Restitution Judgment, such as a greater credit against the
Probate Judgment or restitution of the amount of the
overpayment. This court has the authority to make an order
directing “that the parties be returned so far as possible to the
positions they occupied before the enforcement of or execution on”
an order that has been reversed on appeal. (See Code Civ. Proc.,
§ 908.)4 The trial court has “inherent authority to afford similar
relief.” (Gunderson v. Wall (2011) 196 Cal.App.4th 1060, 1064–
1065 [trial court had discretion to order the restitution of interest
that the appellant had paid on a punitive damage award that was
reversed on appeal].)
This appeal is therefore not moot, and we proceed to
consider the issues that Weber has raised.
2. Weber Was Not Entitled to a Jury Trial to
Determine the Amount Due on the Restitution
Judgment5
Weber argues that she had a right to a jury trial on the
issue of the amount due on the Restitution Judgment because, in
remanding the case following Weber II, this court identified a
“factual dispute” on the effect of crediting prejudgment payments
4Subsequent undesignated statutory references are to the
Code of Civil Procedure.
5 The parties agree that the de novo standard of review
applies to the issues on this appeal. We concur. (See People
ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432
[issues of law are reviewed de novo].)
8
to principal. (Weber II, supra, 27 Cal.App.5th at p. 1201.) We
reject the argument.
In Weber II, we noted that the parties disputed whether the
Restitution Judgment had already been satisfied if Weber’s
prejudgment payments were credited to principal rather than to
interest. We then explained that, in light of this “factual
dispute,” we “leave it to the trial court to determine whether a
sum remains owing on the Restitution Judgment and, if so, the
amount of that sum.” (Weber II, supra, 27 Cal.App.5th at pp.
1200–1201.)
That direction to the trial court was consistent with the
court’s role under the governing statutes. Sections 724.010
through 724.100 govern the procedure for satisfaction of
judgments. Under section 724.030, a judgment creditor is
required to file an acknowledgment of satisfaction of judgment
when a judgment has been satisfied. In the event of a dispute,
section 724.050, subdivision (d) assigns to the trial court the
responsibility to determine if a judgment has in fact been
satisfied. That section provides that, if a judgment creditor does
not comply with a judgment debtor’s request to provide an
acknowledgment of satisfaction of judgment, “the person making
the demand may apply to the court on noticed motion for an order
requiring the judgment creditor to comply with the demand. . . .
If the court determines that the judgment has been satisfied and
that the judgment creditor has not complied with the demand,
the court shall either (1) order the judgment creditor to comply
with the demand or (2) order the court clerk to enter satisfaction
of the judgment.” (§ 724.050, subd. (d), italics added.)
“This section has been interpreted to require the trial court
to first determine whether the judgment has been satisfied in fact
9
before ordering entry of satisfaction of judgment.” (Schumacher
v. Ayerve (1992) 9 Cal.App.4th 1860, 1863, italics added; see
Pierson v. Honda (1987) 194 Cal.App.3d 1411, 1414, fn. 4.) This
statutory procedure is the exclusive mechanism for obtaining an
order compelling an acknowledgment that a judgment has been
satisfied. (Quintana v. Gibson (2003) 113 Cal.App.4th 89, 90.)
Thus, the Legislature has determined that it is the task of
the trial court, not a jury, to determine whether a judgment has
been satisfied. The trial court here properly complied with this
court’s directions and with the governing statutes by determining
on remand whether any amount was still due on the Restitution
Judgment and, if so, how much.
Weber cites section 592, which provides for a jury trial on
issues of fact in “actions for the recovery of specific, real or
personal property, with or without damages, or for money
claimed as due upon contract, or as damages for breach of
contract, or for injuries.” The trial court’s order did not decide
any claim for the return of property or money or for damages. It
simply decided the amount due on a judgment that already
existed. Moreover, we presume that the Legislature intended
section 724.050, which specifically governs the procedure for
determining whether a judgment has been satisfied, to control
that procedure rather than section 592, which is a general statute
on the right to a jury trial. (See Estate of Kramme (1978) 20
Cal.3d 567, 576 [“if a specific statute is enacted covering a
particular subject, the specific statute controls and takes priority
over a general statute encompassing the same subject”].)
Weber also suggests that even if she did not have a right to
a jury trial, she was at least entitled to an evidentiary hearing.
She cites no authority for that proposition. The procedure under
10
section 724.050 for a noticed motion to determine if a judgment
has been satisfied is inconsistent with a requirement for an
evidentiary hearing. Motions on collateral issues are generally
decided by means of declarations rather than live testimony.
(See § 2009; Elkins v. Superior Court (2007) 41 Cal.4th 1337,
1355–1356.)
So far as the record shows, Weber also did not request an
evidentiary hearing. Weber did argue below that she was
entitled to a jury trial, but she did not ask for the opportunity to
present oral testimony in the event the court decided to hear the
matter on noticed motion.
Under California Rules of Court, rule 3.1306(b) she was
required to file a written statement three days before the hearing
on the Estate’s motion “stating the nature and extent of the
evidence proposed to be introduced and a reasonable time
estimate for the hearing.” She did not do so, and has therefore
forfeited the issue. (Estate of Fraysher (1956) 47 Cal.2d 131, 135
[parties could not question the propriety of deciding an issue
based on affidavits when they did not object below and
participated in the procedure].)
In any event, based on the record following remand from
Weber II, there was no factual dispute to resolve through either a
jury trial or an evidentiary hearing. The only dispute between
the parties concerned the legal issue of the proper methodology
for calculating interest. There was no dispute over factual
questions such as how much Weber had actually paid. The
Estate’s expert, Ungar, accepted Weber’s testimony concerning
the dates and amounts of her restitution payments.
As in this appeal, the parties disputed whether
prejudgment interest should be included in the Restitution
11
Judgment amount for purposes of calculating postjudgment
interest. The parties’ experts also took different positions on
whether Weber’s postjudgment payments should be credited to
principal or interest.6 These are legal issues. Weber did not
claim below, and does not argue on appeal, that Ungar failed to
credit particular payments or used faulty math.
Thus, even if Weber had a right to a jury trial or an
evidentiary hearing to resolve factual disputes concerning the
amount of the Restitution Judgment, the record does not show
that any such disputes existed.
3. The Trial Court Properly Included
Prejudgment Interest in the Amount of the
Restitution Judgment
The Restitution Judgment ordered restitution in the
amount of $700,000 “plus interest at 10 percent per year from the
date of the loss.” Thus, the Restitution Judgment included
prejudgment interest as a part of the money judgment.
The Restitution Judgment is enforceable in the same
manner as any other civil judgment. Penal Code section 1202.4,
subdivision (i) provides that a “restitution order imposed
pursuant to subdivision (f) shall be enforceable as if the order
6 Weber’s expert, Benyamini, credited payments that
occurred after entry of the Restitution Judgment to principal.
Those postjudgment payments included a large payment of
$389,000 in July 2013, a year after the Restitution Judgment had
been entered. Benyamini applied that payment to principal,
which she concluded paid off the principal in full, leaving only a
remaining balance for accumulated interest. In contrast, Ungar
credited postjudgment payments first to the accrued
postjudgment interest and then to principal.
12
were a civil judgment.” Similarly, Penal Code section 1214,
subdivision (b) states that if a criminal defendant stipulates to
the amount of restitution (as Weber did here), a restitution order
“shall be fully enforceable by a victim as if the restitution order
were a civil judgment, and enforceable in the same manner as is
provided for the enforcement of any other money judgment.”
(Weber II, supra, 27 Cal.App.5th at p. 1194.)
Because prejudgment interest was included in the
Restitution Judgment as a part of the money judgment, the trial
court properly treated the accumulated prejudgment interest as
part of the principal amount of the Restitution Judgment for
purposes of calculating postjudgment interest. Contrary to
Weber’s argument, that procedure was not an improper use of
compound interest.
“ ‘Although compound interest generally is not allowable on
a judgment, it is established that a judgment bears interest on
the whole amount from its date even though the amount is in
part made up of interest. . . . As a consequence, compound
interest may in effect be recovered on a judgment whereby the
aggregate amount of principal and interest is turned into a new
principal.’ ” (Big Bear Properties, Inc. v. Gherman (1979) 95
Cal.App.3d 908, 913 (Big Bear), quoting 45 Am.Jur.2d, Interest
and Usury, § 78, p. 71; see Westbrook v. Fairchild (1992) 7
Cal.App.4th 889, 894–895 [“The only exception to the rule that
interest on interest (i.e. compound interest) may not be recovered
is in situations in which interest is included in a judgment which
then bears interest at the legal rate”].)
This principle applies regardless of the nature of the action
underlying the judgment. (Big Bear, supra, 95 Cal.App.3d at pp.
913–914.) The principle is reflected in rule 3.1802 of the
13
California Rules of Court, which directs that a clerk entering a
judgment “include in the judgment any interest awarded by the
court.”
Weber cites our Supreme Court’s decision in Hess v. Ford
Motor Co. (2002) 27 Cal.4th 516 (Hess), but that case does not
apply here. In Hess, the court decided that the specific language
of Civil Code section 3291 did not permit compounding interest
by including prejudgment interest in the judgment amount.
Civil Code section 3291 states that if a plaintiff makes a
statutory settlement offer pursuant to Code of Civil Procedure
section 998 and then obtains a more favorable judgment, the
plaintiff is entitled to interest “ ‘from the date of the plaintiff’s
first offer . . . which is exceeded by the judgment . . . until the
satisfaction of judgment.’ ” (Hess, supra, 27 Cal.4th at pp. 530,
531.) The court in Hess concluded that “the statute carefully
defines the time period for accruing interest using a date before
the judgment—the date of the [Code of Civil Procedure] section
998 offer—and a date after the judgment—the date the judgment
is satisfied. [Citation.] Thus, [Civil Code] section 3291 provides
for a single award of interest and expressly eschews any division
of this award into separate prejudgment and postjudgment
components.” (Hess, supra, 27 Cal.4th. at p. 531.) The court also
concluded that the legislative history of Civil Code section 3291
supported this interpretation. (Hess, at pp. 531–532.)
The court held that the specific statutory language in Civil
Code section 3291 controlled over former rule 875 of the
California Rules of Court (the predecessor to rule 3.1802). (See
Hess, supra, 27 Cal.4th at p. 532.) The court specifically
distinguished Big Bear and other cases on the ground that they
“involved statutes or contracts with different language and/or
14
legislative histories than Civil Code section 3291.” (Hess, at pp.
532–533.)
Weber has not identified any statute similar to Civil Code
section 3291 that would preclude computing postjudgment
interest on the full amount of the Restitution Judgment.
The statutes that govern the enforcement of restitution
awards as a civil judgment do not contain any such provision.
Penal Code section 1202.4, subdivision (f)(3)(G) authorizes as an
element of restitution “[i]nterest, at the rate of 10 percent per
annum, that accrues as of the date of sentencing or loss, as
determined by the court.” (See Weber I, supra, B244008 [“Section
1202.4 clearly mandates the imposition of interest on every
award of victim restitution”].) Such interest is a component of
the “dollar amount” that Penal Code section 1202.4, subdivision
(f)(3) directs “shall be . . . sufficient to fully reimburse the victim
or victims for every determined economic loss incurred as the
result of the defendant’s criminal conduct.” Nothing in this
language precludes following the otherwise applicable procedure
of incorporating accrued prejudgment interest in the principal
amount of a restitution judgment for purposes of calculating
postjudgment interest.
Indeed, as mentioned, the governing statutes specifically
state that a judgment issued on a restitution award should be
treated as a civil judgment. (See Pen. Code, §§ 1202.4, subd. (i),
1214, subd. (b) [order to pay restitution “shall be fully enforceable
by a victim as if the restitution order were a civil judgment, and
enforceable in the same manner as is provided for the
enforcement of any other money judgment”].) Under the rules
that apply to civil judgments, postjudgment interest is calculated
15
based on the entire amount of the judgment, including accrued
prejudgment interest that is included in the judgment amount.
4. The Trial Court Properly Calculated the
Amount Due on the Restitution Judgment by
Crediting Postjudgment Payments First to
Accrued Interest and Then to Principal
Weber claims that “[w]ith respect to the restitution
payments made by [Weber] after the July 2013 lump sum
payment, it was erroneous as a matter of law, for the Trial Court
to apply those payments against interest.”7 Weber is wrong.
As this court noted in Weber II, section 695.220 provides
that “ ‘[m]oney received in satisfaction of a money judgment’
should first be applied to fees and accumulated interest” and then
to “ ‘the principal amount of the judgment remaining
unsatisfied.’ ” (Weber II, supra, 27 Cal.App.5th at p. 1199, citing
§ 695.220, subds. (a)–(d).) The trial court properly followed this
7 It is unclear why Weber attributes any significance to the
July 2013 date. That date was a year after the Restitution
Judgment was entered. Moreover, Ungar’s calculations, on which
the trial court’s order was based, accounted for Weber’s
postjudgment payments in the same manner both before and
after the July 2013 payment. Ungar consistently applied Weber’s
postjudgment payments first to accrued interest and then to
principal. Ungar properly credited the July 2013 “lump sum”
payment of $389,000 first to pay off the accrued postjudgment
interest (at that time amounting to $51,396.36), and then to the
outstanding principal of $780,104.80, which reduced the principal
to $442,501.16.
16
procedure in crediting Weber’s postjudgment payments first to
accrued interest and then to principal.8
DISPOSITION
The trial court’s order is affirmed. The Estate is entitled to
its costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
8 In contrast, as discussed above, Weber’s expert
calculations were flawed because they credited Weber’s
postjudgment payments first to principal rather than to accrued
interest. That included the $389,000 payment in July 2013,
which Benyamini incorrectly concluded paid off the remaining
principal.
17
Kerley v. Weber CA2/2
Combined Opinion