A & B Painting v. Turner Construction Co.

Filed 1/11/08 A & B Painting v. Turner Construction Co. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE COURT:

It is ordered that the opinion filed herein on December 14, 2007, be modified as follows:

1. On page 3, footnote 3 is deleted, which will require renumbering of all subsequent footnotes.

2. On page 7, between the third full paragraph, beginning Because the only evidence, and the commencement of part II. on page 8, add the following four paragraphs:

Custom Spray also suggests that it is entitled to interest of 10 percent per annum on the acknowledged debt pursuant to section 3287. Turner does not respond to this contention. Section 3287, subdivision (a), permits recovery of interest on liquidated damage claims: Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt. (See North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828.)

Although an appellate court generally may affirm the trial court ruling on any correct theory, a respondent cannot assert a new theory on appeal if doing so would unfairly prejudice appellant by depriving him or her of the opportunity to litigate an issue of fact. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007)  8:241, p. 8-140; see 14859 Moorpark Homeowners Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1403, fn. 1).

Affirming the trial court judgment on the alternative theory that Custom Spray was owed interest under Civil Code section 3287 would unfairly prejudice Turner. In the trial court, Custom Spray primarily relied on the theory that it was owed penalties under Civil Code section 3260 and/or Business and Professions Code section 7108.5, not on the theory that it was owed interest under section 3287. Although Custom Spray made passing references to interest in its initial complaint, trial brief, and closing argument at trial, it never cited section 3287, and it did not present any argument or evidence supporting its entitlement to interest under section 3287. The trial court did not award Custom Spray interest under section 3287, but instead awarded Custom Spray penalties under section 3260 in lieu of any other interest that might be owed. Custom Sprays passing references to interest were not sufficient to inform the trial court or Turner of the theory now asserted on appeal.

Furthermore, whether Custom Spray is entitled to interest under section 3287 depends on unresolved factual issues. Under section 3287, subdivision (a), a party is entitled to interest only if the damages are certain, or capable of being made certain by calculation, and the right to recover . . . is vested in him upon a particular day. There is no evidence in the record of the date on which Custom Sprays right to recovery of the retention vested.

There is no change in the judgment.

Respondents petition for rehearing is denied.

Dated:, P. J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.