Filed 2/9/17; part. pub. & mod. order 3/10/17 (see end of opn.)




    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          SECOND APPELLATE DISTRICT

                                       DIVISION TWO


VALERIE YALE,                                             B260762

       Plaintiff and Appellant,                           (Los Angeles County
                                                          Super. Ct. No. BC499388)
       v.

ROBERT R. BOWNE, II,

       Defendant and Appellant.




    APPEALS from a judgment of the Superior Court of Los Angeles
County. Maureen Duffy-Lewis, Judge. Affirmed with modifications.

     Joshua R. Furman Law Corp., Joshua R. Furman for Plaintiff and
Appellant.

       Stephen R. Rykoff for Defendant and Appellant.

            ___________________________________________________
      This case arises from a claim of attorney malpractice in the preparation
of an estate plan. The jury found that defendant Robert R. Bowne, II
(Bowne) had breached the standard of care in failing to properly implement
Valerie Yale’s (Yale) express instruction to maintain her assets as her
separate property in the trust document which Bowne prepared for her and
her then husband, Bryan Knight (Knight).1
      Each party finds error in elements of the jury’s monetary award, and in
the trial court’s denial of Yale’s motion for prejudgment interest.2 We will
conclude that the trial court correctly gave the comparative fault instruction
requested by Bowne and that substantial evidence supports the jury’s award
of $260,000 in damages (to be reduced under the jury’s comparative fault
determination), but that the award for investment losses claimed by Yale was
not supported by substantial evidence; nor is Yale entitled to prejudgment
interest.
                FACTUAL AND PROCEDURAL HISTORY
      We set forth those facts relevant to the issues presented by the parties.
Also, we set out the facts in the light most favorable to the jury’s verdict.
(Sacramento Sikh Society Bradshaw Temple v. Tatla (2013) 219 Cal.App.4th
1224, 1227.)
      Yale grew up in the family’s retail electronic business, eventually
computerizing parts of it and expanding it, and, after her mother’s death and
her father’s move out of state, and when technology passed it by, selling the


1      Knight was not a party to this action, nor did he testify at trial. He and
Yale were divorced prior to commencement of the litigation that is the subject
of this appeal.

2     Bowne does not contest the jury’s finding that he was negligent.
                                        2
business real property and assets, and retiring. Her first marriage ended in
divorce in 1981 and involved a “terrible financial situation,” which she
believed resulted in her first husband “[taking] half of everything I had.”
      In 1982, after she retired, she decided to take up tennis, then meeting
tennis pro Knight. They lived together from the year in which they met until
1997, when then married, and through December 2011, when events
described below led to their separation and divorce. Prior to their marriage,
they entered into a prenuptial agreement which specified that Yale’s property
was to remain her separate property.
      In 1994 she updated an earlier living trust to provide for Knight,
including making him the beneficiary for his life of her asset upon her death,
with the remainder to go on his death to specified individuals and charities.
In 1999, in another update to her living trust, she made Knight successor
trustee. Yale’s assets included her family’s home on Arrowhead Drive (the
house) which she had purchased from her father with her own funds prior to
his departure from California.
      In late 2009, Yale had “done a refi of the house.” The lender had
required that Knight co-sign on the transaction; this resulted in the creation
of a Home Equity Line of Credit (HELOC) against which either Yale or
Knight could draw funds. When problems arose in early 2010 in completing
the transaction, Knight referred Yale to Bowne, who helped resolve those
issues, including returning the vesting on the house to her separate property
from the community property vesting which the lender had required.
      On her March 30, 2010 visit to Bowne’s office, aware that Bowne
considered himself to be an estate planning attorney, she began speaking
with him about again updating her trust. She considered this to be a good
idea as it had been over 10 years since the previous update. After meetings


                                       3
and e-mails, Bowne prepared estate planning documents which Yale and
Knight signed in Bowne’s office on May 21, 2010.
      Later in 2010 Knight began having issues at work; he stopped sleeping
and exhibited signs of extreme stress. One day in November 2010, he called
Yale from work and asked her to pick him up. When she arrived to get him,
he was standing at the curb. Yale testified that he “wasn’t in good shape.”
She took him to a psychiatrist who diagnosed him with depression,
prescribed medication, and gave him a note to advise his employer that he
could not return to work until the doctor cleared him. Knight’s condition did
not improve. On December 26, 2011, Knight attacked Yale inside their home,
coming up behind her, choking her, and attempting to suffocate her. She
managed to trigger an alarm company panic alarm. The police arrived,
breaking down a door to gain entry. Once inside, they observed Knight
strangling Yale, and took Knight into custody. Yale obtained a domestic
violence restraining order the next day which included an order that Knight
move out of the house.
      Yale became concerned about both her personal and financial safety
and went to attorney Charles Larson (Larson), whom she described as “a
trust attorney,” three days later, on December 29, 2011. He reviewed her
documents, told her that everything was community property and advised
her that she should get all of her assets out of the family trust and he would
prepare documents to do that. The next day she returned to sign a deed to
transfer the house back to her name as her separate property. He also
advised her that this did not solve the problem with the securities account
she and Knight, as trustees, maintained with Vanguard and suggested that
she contact Vanguard and ask them for help to transfer those assets to an
account in her name (outside of the trust that Bowne had established).


                                       4
      During the same period of time, Knight called her from jail, asking her
to put the house up as collateral so he could bail out. She refused to do so.
      Yale next opened a new separate property account at Vanguard, and
wrote checks on the existing Vanguard money market account to close it,
depositing the funds in the new account. Because Vanguard had told her it
would take seven to 10 days to transfer the brokerage account from its
present status in the trust to any new account, which she wanted to do, and it
would be difficult on the last day of the calendar year for her to find a
financial institution with the authority to affix the required Medallion
signature guarantee3 verifying her signature, Yale decided she could not wait
and proceeded to sell all of the holdings in the brokerage account. She
completed the sales within a few days and deposited the proceeds in a new
Chase Bank account she had set up in her name. By mid-January she had
transferred those proceeds to the new Vanguard accounts vested in her name
only. In December 2011, before she began the transfer and sales of assets,
the accounts consisted of a money market account, mutual funds, and E.T.F.S
(described in the record as a “basket” of stocks), all selected by her.
      Once all funds were in the new, separate property Vanguard accounts,
Yale began to watch the stock market to see if there was a point at which she
could “get back in when the market was low.” She testified that the
opportunity came about June 3rd or 4th of 2012 when there was a five
percent “dip.” She did not have a financial adviser because “Ever since I
retired, I wanted to handle my own money because that was the last money


3      A Medallion signature guarantee assures that the signature of the
account holder will be recognized as genuine by the transfer agent.
(SEC.gov/Medallion Signature Guarantees: Signature Guarantees:
Preventing the Unauthorized Transfer of Securities
http://www.sec.gov/answers/sigguar.htm> [as of Jan. 27, 2017].)
                                        5
that I was going to be making and it was to see me though retirement. [¶]
And frankly, I just got really interested in learning about investing; so, I
started to subscribe to newsletters and basically teaching [sic] myself about
investments so I didn’t do something dumb, and I really enjoyed it. In fact, it
was similar, you know, to managing money at my business, and it’s just, you
know, something that I felt confident in doing.” She was fully invested by
June 2012.
      On February 15, 2012, Knight had Yale served with divorce papers.
Shortly after he started the divorce proceedings, he withdrew $200,000
against the HELOC. Yale hired attorney Bruce Abramson (Abramson) to
represent her in the divorce. She testified that Abramson recommended that
she settle the divorce proceedings with Knight on terms which included Yale
paying him $260,000, an amount reached in the course of settlement
negotiations. Abramson advised this would be reasonable to avoid potentially
losing half of everything based on the claim that the estate plan Bowne had
put in place transmuted all of her separate property to community property.
She accepted his advice and the matter settled in late 2012. The property
settlement agreement included a provision that Knight would receive the
$260,000 in exchange for releasing Yale from any obligation to pay any larger
sum. Yale fulfilled that obligation by paying Knight $60,000 in cash and
assuming the obligation to repay the $200,000 due to the lender under the
HELOC.
      Yale’s complaint originally contained causes of action for negligence
and for breach of fiduciary duty. She dismissed the latter claim prior to trial.
      The jury’s verdict included findings that both Bowne and Yale were
negligent, allocating fault 90 percent to Bowne and 10 percent to Yale. The
jury awarded damages of $260,000 for the amount Yale had paid to Knight to


                                        6
resolve the monetary aspects of their divorce; $57,170 in investment losses
she incurred in her Vanguard accounts; and $39,000 to reimburse her for
attorney fees she had paid to her divorce and other attorneys for
representation in that action and which was attributable to errors made by
Bowne in preparing the estate plan. The parties filed a timely appeal and
cross-appeal.
                              CONTENTIONS
      Yale contends: (1) giving the jury an instruction on comparative fault
by Yale was error; (2) no substantial evidence supports the jury’s reduction in
the amount awarded for investment losses; and (3) she is entitled to
prejudgment interest.
      In addition to disputing these contentions, Bowne contends in his cross-
appeal that there was no substantial evidence to support (1) an award of any
damages for Yale’s claimed investment loss; or (2) $200,000 of the $260,000
awarded in connection with Yale’s divorce settlement.
I.    The Comparative Fault Instruction
      Among the instructions given to the jury were an instruction on
professional negligence and, over Yale’s objection, an instruction on
comparative negligence which Bowne had requested.4 Yale contends the trial
court erred in giving the comparative fault instruction, arguing: (a) no
California appellate court decision has discussed application of the principle


4     The comparative fault instruction, given in a manner consistent with
the Judicial Council’s Civil Jury Instruction No. 406, provided in part:
“[Bowne] claims that [Yale]’s own negligence contributed to her harm. To
succeed on this claim, [Bowne] must prove both of the following: 1. That
[Yale] was negligent; and [¶] 2. That [Yale]’s negligence was a substantial
factor in causing her harm.”

                                       7
of comparative fault in attorney malpractice cases; (b) the instruction should
not have been given because Yale did no more than rely on her lawyer’s
advice, (c) “public policy considerations” require the instruction not be given
when the client does not have the knowledge to understand the documents
the lawyer has prepared, and (d) the instruction is inappropriate when “the
client’s conduct does not interrupt the causal chain from the attorney’s
negligence.” At oral argument counsel for Yale conceded that comparative
fault instructions may be appropriate in attorney malpractice cases in certain
circumstances. We will therefore focus our discussion on whether sufficient
circumstances were presented in this case and will conclude that substantial
evidence did warrant the giving of such an instruction.
      A. Additional facts
      Yale first sought Bowne’s legal advice in completing the transaction by
which she and Knight obtained the HELOC on the house in 2009. The
transaction included removing the house from her then trust, vesting title in
herself alone, obtaining the new loan (the HELOC), and then, as a condition
she had placed on the transaction, returning the title vesting to her as her
separate property and as trustee of her trust. She did all of this because the
new lender had required that Knight “be put on the loan” as a co-signer (Yale
did not have sufficient income by herself to obtain it) and be equally obligated
to make any repayments on sums borrowed. This required that title to the
house be conveyed from Yale as trustee of her separate trust to her as her
separate property, then to her and Knight as community property. Yale had
secured the lender’s agreement that once the loan was recorded, title could be
returned to her as her separate property. When Yale encountered problems
in completing the deed recordation process, Knight suggested that she seek
Bowne’s assistance. Knight knew Bowne through Bowne’s relationship with


                                       8
the bank at which Knight was then working. Yale obtained Bowne’s help in
early March 2010, and during that month he completed the transfers as she
had wanted.
      Once Bowne had completed the title transfers, Yale decided to retain
him to update her estate plan. In a series of meetings and via email, Yale
explained to Bowne her desires, including that her property must remain her
separate property. Bowne explained to her ways to achieve her objectives,
which also included Knight succeeding her as trustee on her death or
incapacity. On May 21, 2010, Yale and Knight went to Bowne’s office to hear
his explanation of the documents he had prepared and to sign them as
needed. She did not read all of the documents, but did read certain portions.
The first document they signed was the new trust. She read paragraph
1.2(B) of that document, “Property to Retain its Character,” which declared
that both separate and community property were being placed in the new
trust. She did not raise any issue concerning the meaning of this paragraph
with Bowne.
      Yale also read the granting clauses of the three deeds she signed that
day. She understood the execution of these deeds to be part of the process of
transferring the house from her 1999 trust to this new trust. When she read
the words “community property” in two of the deeds, she understood what
that meant but she did not say anything to Bowne about the use of the term
“community property” or raise any other question with him about the effect of
these deeds. At the time the 2010 trust was created, her separate property
was worth approximately $2 million. Shortly after completing the meeting at
Bowne’s office, Yale changed the vesting on the investment account she had
at Vanguard, revesting it as “Valerie A Yale & Bryan J Knight TR UA 05-21-
2010 The Valerie A Yale and Bryan J Knight Fam Tr.”


                                      9
        B. Applicable law
        “A party is entitled upon request to correct, nonargumentative
instructions on every theory of the case advanced by him [or her] which is
supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 572.) “The propriety of jury instructions is a question of law that
we review de novo. [Citation.]” (Cristler v. Express Messenger Systems, Inc.
(2009) 171 Cal.App.4th 72, 82; Sander/Moses Productions, Inc. v. NBC
Studios, Inc. (2006) 142 Cal.App.4th 1086, 1094; National Medical
Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 426-
427.)
        The principle of comparative fault was established in our Supreme
Court’s decision in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 (Li). In
rejecting the prior doctrine of contributory negligence, our Supreme Court
explained that the former doctrine was “rooted in the long-standing principle
that one should not recover from another for damages brought upon oneself
[citations omitted.]” (Id. at p. 810.) The consequence of application of this
doctrine (with some exceptions) was that the plaintiff recovered nothing when
he or she was found to have contributed in any way to the harm created by
the fault of the defendant. Notwithstanding the long history of the doctrine,
the Li court concluded that this ‘“all-or-nothing”’ approach “is inequitable in
its operation because it fails to distribute responsibility in proportion to fault”
(Ibid., fn. omitted), and that the contributory negligence defense should be
replaced “by a system under which liability for damage will be borne by those
whose negligence caused it in direct proportion to their respective fault.” (Id.
at p. 813, fn. omitted, emphasis added.) The fundamental purpose of the new
principle of comparative fault was, in the court’s judgment “to assign
responsibility and liability for damage in direct proportion to the amount of


                                        10
negligence of each of the parties. Therefore, in all actions for negligence
resulting in injury to person or property, the contributory negligence of the
person injured in person or property shall not bar recovery, but the damages
awarded shall be diminished in proportion to the amount of negligence
attributable to the person recovering.” (Id. at pp. 828-829.) The court
adopted the new rule of comparative fault based on “considerations of
fairness and public policy. [Citations omitted.]” (Id. at p. 829.)
      In the present case, then, the question before us is whether there was
substantial evidence to warrant the giving of a comparative fault instruction.
      In considering the jury instruction challenged in this case, we begin
with the recognition that legal malpractice actions in California are a subset
of negligence actions in general and are governed by the rules of pleading and
proof applicable to all negligence actions except to the extent “the Legislature
has statutorily modified, restricted, or otherwise conditioned some aspect of
an action for malpractice . . . . ” (Flowers v. Torrance Memorial Hospital
Medical Center (1994) 8 Cal.4th 992, 998-999.)
      Yale asserts that applying the principle of comparative fault “defies
reason” because of “the great disparity in knowledge and experience between
lawyers and [their] clients,” and in particular in this case. However, in this
case, the facts support the giving of the challenged instruction. It is
undisputed that Yale read the granting clauses of the deeds, saw the change
from separate property to community property in two of the deeds, and was
entirely conversant with the issue as she had just completed a transaction
involving the identical property which included her insisting that the same
parcel be restored from community property to separate property status at
the conclusion of the HELOC transaction. Notwithstanding her knowledge
and having just completed that transaction, she remained silent rather than


                                       11
ask the same lawyer who had represented her in completing that transaction
why it was appropriate to sign the deeds now presented to her containing
these particular granting clauses: Yale had the basic knowledge to pose a
question to Bowne rather than remain quiet. It was for the jury to evaluate
whether her failure to ask a question contributed to the situation for which
she now sought damages.
      Yale’s reliance on Theobald v. Byers (1961) 193 Cal.App.2d 147
(Theobald) and on Daley v. County of Butte (1964) 227 Cal.App.2d 380, is
misplaced. In Theobald, a legal malpractice action (applying contributory
negligence doctrine as it preceded Li), the plaintiff’s agent had no knowledge
of the intricacies of the recording statute and of the financial
consequence (loss of priority in payment under federal bankruptcy law) of
failing to comply with them. (Theobald, at pp. 152-153.) In Daley, the issue
was whether the attorney’s neglect in missing litigation deadlines should be
imputed to the client. That court’s holding, that the client is not to be
charged with such specialized knowledge of the arcane aspects of civil
procedure, also has no application here.
      In this case, the facts and circumstances recounted above, as well as
her testimony that she had made an egregious error in her first marriage by
allowing property to be transmuted to community property status,
constituted sufficient evidence that the issue of comparative fault was
properly placed before the jury.
      One of Yale’s arguments reveals a misunderstanding of the way in
which the issues of negligence liability and comparative fault relate to one
another. Acknowledging that some system of comparative fault is to be
allowed, Yale argues, “While there is no doubt that a comparative negligence
defense can be asserted in a legal malpractice case as a general matter, the


                                       12
application of the defense cannot diminish the defendant lawyer’s duties.” It
does not follow from this statement that comparative fault does not apply in
legal malpractice cases, however. To so contend fails to distinguish between
the two legal principles: the first, whether the lawyer was negligent, which
may be summarized as an inquiry concerning the lawyer’s professional duty
and whether the lawyer has breached the standard of care to the damage of
the plaintiff. The second asks a different question, whether the conduct of
the client invokes application of principles of comparative fault to assist in
allocating part of the responsibility, if any, for the claimed damages to the
client. The two inquires operate in related, but somewhat different ways.
The following quotation from Prosser on Torts explains the distinction:
“Negligence as it is commonly understood is conduct which creates an undue
risk of harm to others. Contributory negligence is conduct which involves an
undue risk of harm to the actor himself. Negligence requires a duty, an
obligation of conduct to another person. Contributory negligence involves no
duty, unless we are to be so ingenious as to say that the plaintiff is under an
obligation to protect the defendant against liability for the consequences of
his own negligence.” (Prosser, Law of Torts [Torts (4th ed. 1971] § 65, p. 418;
Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 735.)
      Thus, if the finder of fact determines that the lawyer has breached his
or her duty, causing damage to the client, it must then be determined if the
client bears any share of responsibility for the harm caused, viz., whether
comparative fault principles apply. That is why the comparative fault
instruction in this case was appropriately given.
      Cases from other jurisdictions. Yale constructs her argument in large
part upon the authority of cases from other jurisdictions. Such a course is
fraught with difficulty due to the variations that share the same legal


                                       13
“umbrella” term “comparative fault” as a descriptor. While 46 states have
adopted the principle of “comparative negligence,” there are multiple versions
of this doctrine. (See, e.g., Article: Johnson, The Unlawful Conduct Defense
in Legal Malpractice (2008-2009) 77 UMKC L.Rev. 43, 78.) Some states have
adopted versions of comparative negligence by act of their state legislatures,
others have done so by judicial decision. The variations in how the doctrine is
applied comprise a virtual rainbow of alternatives, emanating from three
basic types, identified by Prosser and Keeton as “pure, modified, and slight-
gross.” (Prosser & Keeton, Torts (5th ed. 1984) Negligence, Defenses, § 67,
p. 471.) In addition, the Uniform Comparative Fault Act (12 U.L.A. (Master
Ed.), p. 121) has been adopted in some states.
      Yale does not discuss the source of the doctrine of comparative fault
that is in use in each of the states from which she has selected cases to cite.
Because of the variation in the several versions of this principle, we find
giving weight to out-of-state court rulings lacks analytical value as well as
any persuasive force. This is certainly so when our Supreme Court made
clear in Li the scope of application of the principle.
      Yale cites one unpublished federal district court case, Bank Saderat
Iran, N.Y. Agency v. Telegen Corp. (N.D. Cal. Oct 16, 1997, WL 685247)
[nonpub. opn.] and argues that it supports her claim, quoting the following
language from this unreported case: “A client . . . does not have an
independent obligation to double-check the work of her attorney. She has a
right to rely on her attorney’s advice about legal matters because the
attorney has superior expertise and knowledge of the law.” That court then
cites Theobald and Day v. Rosenthal (1985) 170 Cal.App.3d 1125. We have
explained ante why reliance on Theobald is inapposite. The issue both in
Saderat and in Day concerned allegations of breach of fiduciary duty; indeed,


                                        14
in Day the lawyer had become the client’s business manager and was found
to have defrauded the client. There is no discussion of comparative fault in
either case, making reliance on either inappropriate. Thus, we do not find
this unreported case to be of any persuasive value.
      Yale’s argument that there must be evidence of causation before a
comparative negligence instruction is given is not disputed by Bowne.
Bowne’s fundamental argument on the matter of causation is that Yale was
aware of the problem with the deeds and had an obligation to bring her
concern to Bowne’s attention—but did not do so, thus contributing to her
damage, and validating the giving of the instruction in this case.
      The requirement that there be evidence of the plaintiff’s own deficient
conduct before a comparative fault instruction is appropriately given was
discussed, and affirmed, by our Supreme Court in LeMons v. Regents of
University of California (1978) 21 Cal.3d 869, 875.
      C. Public policy
      Yale further contends that, in this case, there is no policy reason to
hold Yale even partly responsible “for spotting and understanding the
significance of her own lawyer’s error in 137 pages of documents that she
hired the lawyer to produce. Under these circumstances, the comparative
fault analysis does no less than impose a constructive suspension of the
duties owed by the lawyer to the client.” [¶] . . . [¶] The only arguable basis
for assigning any blame on Yale would be to suggest that she failed to
‘supervise, review, or inquire as to the representation.’”
      The facts of this case, however, reveal that Yale read the granting
clauses of the deeds before she signed them, understood the meaning of the
terms she read, and chose to remain silent. There were sufficient facts, given
Yale’s very recent familiarity with the issue, for us to conclude that no public


                                       15
policy reason makes Yale’s own conduct immune from consideration by the
jury. Moreover, Yale’s assertion is belied by our Supreme Court’s explanation
in Li that public policy is one of the reasons for its adoption of the principle of
comparative fault. (Li, supra, 13 Cal.3d at pp. 829-830.)
      D. Conclusion
      We conclude that the court correctly instructed the jury on the
principles of comparative fault.
      We defer discussion of Yale’s other contentions as our resolution of
certain of Bowne’s contentions affects them.
II. The Amount Awarded for Investment Losses
      The jury’s verdict included an award of $57,100 to Yale for investment
losses.5 Yale and Bowne have overlapping claims regarding the gross
amount of this award. Bowne argues that there is no substantial evidence to
support the award in any amount, while Yale argues that no substantial
evidence supports the jury’s reduction from the larger amount ($247,737)
which her expert witness testified was due.6 We will conclude that Bowne is
correct.
      A. Additional facts
      Prior to meeting Knight, Yale had invested funds with Vanguard.7 She
maintained her accounts with Vanguard after she and Knight were married.



5     The jury also found Yale 10 percent at fault, requiring a corresponding
reduction in this award.

6     The parties agree that we review the jury’s award for substantial
evidence. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629.)

7    There is little in the record concerning the nature of the services which
Vanguard provides. We take judicial notice that it is a large investment
company which holds investors’ funds and securities, some of which are
                                        16
In implementing the estate plan prepared by Bowne, Yale transferred title on
her Vanguard accounts8 to herself and Knight as trustees of the new trust.
Immediately after her meeting with Larson at the end of December 2011, at
which he advised her to remove assets she claimed as her separate property
from joint ownership or vesting with Knight, and continuing in early January
2012, Yale expeditiously sold all of the assets in the Vanguard accounts,
completing the sales by mid-January 2012. She was concerned that Knight,
who had the ability as co-trustee to access the accounts, and was still in jail
and had asked her to post his bail, might sell assets held in the Vanguard
accounts to raise money for his bail, or for other purposes. She testified that
her intent in closing the accounts was to terminate any potential access by
Knight and return the assets to her sole control. After she completed the
withdrawals, she opened new accounts at Vanguard, and, by mid-January
2012, had redeposited all of the proceeds of the just-made sales in new
Vanguard accounts solely in her name.9 The total amount redeposited was
$654,040. No fees had been incurred in the process.10



proprietary funds. It also issues periodic statements to investors utilizing its
services. (Evid. Code, § 452, subd. (g) [matters of common knowledge].)

8     It is undisputed that Yale was the sole source of the assets placed with
Vanguard. It is unclear whether Yale had a single, or multiple, accounts. We
adopt the parties’ practice of using the plural when referring to Yale’s
holdings at Vanguard.

9     The record does not clearly indicate, but it is a reasonable inference
that the redeposited funds were placed in money market accounts pending
reinvestment in securities, as is now discussed in the text.

10    There is no evidence in the record that Yale incurred either fees or any
net capital gains on the sales she made, and only fragmentary evidence
regarding tax basis issues that might have affected her decision.
                                       17
      Yale then considered purchasing the same portfolio of securities as she
had just sold, which she could do, also without any transaction costs, but
decided not to do so. Instead, she waited for what she considered an
appropriate time to reinvest, which occurred in June 2012. At that time, she
reinvested in a different mix of securities, but maintained the goal of having
“a balanced portfolio of asset allocation.”
      Yale’s expert in securities matters, Mason Dinehart III, (Dinehart)
testified that Yale lost $247,737 between the time of the sales in December
2010 and January 2011, and March 2014, the month prior to the trial. To
obtain this number, he determined the market value of the securities held in
the Vanguard accounts once Yale had completed the sales ($654,040) and the
value of the identical investments (assuming that Yale would have continued
to hold them throughout) in March 2014 ($901,777); then he subtracted the
earlier value from that in 2014. The arithmetic difference of $247,737 was,
according to Dinehart, the investment loss caused by Bowne.11
      Dinehart testified that the stock market was at the same level in June
2012 as it had been in January of that year. He also testified that, in June,
Yale could have reinvested in all of the same securities she had sold in
January and in the prior December. When he asked her about her decision
not to repurchase the identical assets in January, she told him “Now that I’m
in cash and have freedom to choose any stocks that I want—any mutual
funds that I want or exchange traded funds—she took the best performers at
that time, now that she had a fresh start. It was now time to reinvest, and
she did and she picked the best ones at that time.” He also testified that
when Yale reinvested the funds in June 2012, “she was very careful to

11    The evidence also indicated that Yale incurred no transaction cost in
either selling or buying securities through Vanguard. The record indicates
that an annual maintenance fee is charged instead.
                                        18
equalize the sectors.” When she did reinvest in June 2012, Yale told
Dinehart that she had adopted a different investment strategy, repurchasing
only two of the investment funds she had owned before. Dinehart stated
that, had she repurchased the identical assets in January 2012 as soon as she
had the funds in her new, separate account, her cost basis “[would have been]
pretty close.”
      Dinehart did not do a calculation of what Yale’s actual securities
portfolio, which she purchased in June 2012, was worth in March 2014, nor
did he calculate its investment gain. He was aware that Yale withdrew
approximately $200,000 from her stock account by the end of 2012. This was
one of the reasons he did not analyze this new portfolio.
      Lisa Roth, a registered broker-dealer called by the defense testified
that, in January 2012, Yale could have repurchased the same securities as
she had sold. Roth testified that Yale’s new investment strategy was
successful, Yale did make money, and was able to withdraw $210,000.
      B. Discussion
      Dinehart’s testimony does not establish that Yale was damaged or that
Bowne was a cause of her monetary “loss.” Rather, his testimony
(corroborated by Roth’s) that Yale could have repurchased the same
securities in January 2012 as she had just sold, and do so without any
transaction cost—is evidence that she would have profited by the amount
that Dinehart claimed were her damages had she done so. He also testified
that she could have made the same purchases at the same prices in June of
that year.
      Yale testified that she decided to wait and read and study before she
reinvested. Bowne points out that he did not cause the claimed investment
loss; rather it was solely a result in Yale deciding not to repurchase the same


                                      19
securities in mid-January 2012, and he points out, when she re-entered the
market, she did so under a different investment perspective. Thus, he
argues, that there is no substantial evidence of loss in any event.
      With respect to his first argument, Bowne relies on uncontroverted
evidence that Yale alone made the decision to not repurchase in mid-January
2012 the identical assets she had just sold even though, as we noted above,
she could have done so without incurring any transaction costs. Instead, Yale
decided on her own to wait until June of that year to fully reinvest,
meanwhile reading and educating herself on investments. When she re-
entered the market that June, she testified without contradiction that she
then implemented a somewhat different investment strategy. There is no
dispute in the testimony: Yale herself determined to modify her investment
philosophy and Yale chose not to reinvest in January, but instead wait until
June 2012 to reinvest in full.
      As Bowne argues, “It is axiomatic that a defendant cannot be held
liable in tort for an injury he or she did not cause.” In addition to being a
“but-for cause,” the defendant’s conduct must be a substantial factor in
bringing about the injury for which the plaintiff seeks damages.
(Brookhouser v. State of California (1992) 10 Cal.App.4th 1665, 1677.) Here,
there is no substantial evidence that Bowne’s conduct played any part in
Yale’s decision in January 2012 to change her investment philosophy and to
wait until June 2012 to become fully reinvested in a “somewhat different”
securities portfolio. Nor is there any substantial evidence that Yale actually
sustained any loss.12


12    Nor did Dinehart calculate Yale’s investment gain on the investments
she did make in June 2012. The amount of that gain should have been
available to compare to the “loss” which Dinehart did calculate, to determine
whether there was in fact any net investment gain, or loss.
                                       20
      For these reasons, Yale’s additional contentions that the jury erred in
reducing the amount of investment damages, and thus, that she is entitled to
a greater amount of such damages, are moot.
III. Prejudgment Interest
      Yale argued in her briefs that she is entitled to prejudgment interest
pursuant to statute (Civ. Code, § 3287, subd. (a)), and pursuant to case law,
on each element of her damages (on the divorce settlement, attorney fees
incurred in connection with it, and on the amount awarded for her
investment losses).13 At oral argument, she conceded that she would not be
entitled to prejudgment interest on the amount of the investment loss as it
was substantially reduced by the jury (and is now disallowed its entirety).
We will conclude that this contention is without merit.
      The matter of whether prejudgment interest is properly awarded is
reviewed for abuse of discretion. (Bullis v. Security Pac. Nat. Bank (1978) 21
Cal.3d 801, 814; Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co.,
supra, 47 Cal.App.4th at p. 492; Moreno v. Jessup Buena Vista Dairy (1975)
50 Cal.App.3d 438, 448.) But it is a question of law whether any interest is
allowable. (California Teachers Assn. v. San Diego Community College Dist.
(1981) 28 Cal.3d 692, 699.) (Because we determine that the principle
amounts sought by Yale were not liquidated, and therefore prejudgment
interest was not properly to be awarded, we do not address the additional
issue of whether Civil Code section 3288 precludes any award of prejudgment
interest in any event.)


13    As we have determined that Yale is not entitled to recover any amount
for her claimed investment losses, she is not entitled to recover any
prejudgment interest on this amount in any event. (Arntz Contracting Co. v.
St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 492.)

                                      21
      Yale made a motion after trial seeking prejudgment interest, relying on
Civil Code sections 3287, subdivision (b) and 3288, which was denied. On
appeal, Yale argues that the award of prejudgment interest was mandatory,
relying on Civil Code section 3287, subdivision (a) and language in North
Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828 (Rogers).
      The statement in Rogers upon which Yale relies is a quotation from a
practice book on civil trials which states that the award of interest is not
discretionary “from the first day there exist[] both a breach and a liquidated
claim.” (Rogers, supra, 65 Cal.App.4th at p. 828, quoting from Wegner et al.,
Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 1997) ¶¶
pp. 17:185, 17:189, pp. 17-40.23, 17-40.24, emphasis added.)
      Yale next argues that each element of her damages as to which she
seeks prejudgment interest was liquidated, viz., fixed, in amount. Bowne
does not agree; nor do we.
      Bowne addresses the difficulty with Yale’s argument in his argument
that the amount of damages was not certain until the jury made a
determination as to the comparative fault of the parties; thus, the amount
was uncertain until the verdict was rendered; and, accordingly, the award of
any prejudgment interest would have been error. The trial judge found
Bowne’s argument persuasive, relying on Wisper Corp. v. California
Commerce Bank (1996) 49 Cal.App.4th 948, 960 (Wisper). As noted above, we
review the trial judge’s determination under Civil Code section 3287 for
abuse of discretion. (Bullis v. Security Pac. Nat. Bank, supra, 21 Cal.3d at
p. 814; Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co., supra, 47
Cal.App.4th at p. 492; Moreno v. Jessup Buena Vista Dairy, supra, 50
Cal.App.3d at p. 448.)




                                       22
      The decision in Wisper relies in part on the reasoning in Stein v.
Southern Cal. Edison Co. (1992) 7 Cal.App.4th 565, an opinion by Division
Six of this court, which pointed out that “[w]here the amount of damages
cannot be resolved except by account, verdict or judgment, [prejudgment
interest is not appropriate].” (Id. at p. 573.) We find the holdings of these
cases to be dispositive; there was no abuse of discretion in the trial judge’s
denial of Yale’s motion for prejudgment interest.
IV.   Damages Based On the Settlement of the Dissolution Action
      Bowne contends there is no substantial evidence to support the award
of $200,000 of the $260,000 for which Yale settled her dissolution of marriage
action. Bowne bases this argument on the contention that the amount he
contests was not the result of anything he did or did not do; instead it was the
direct result of Knight’s draw down on the HELOC. In support of his claim,
Bowne emphasizes that (1) the HELOC was obtained with the mutual
consent of the parties and Yale’s express agreement that any amounts drawn
on the HELOC would be a lien against that property, and (2) the HELOC was
obtained prior to the time Yale first met Bowne.
      A. Additional facts
      The HELOC was obtained in 2009 after the parties were married. The
only involvement which Bowne had with respect to it was redrafting and
recording the deed, returning the vesting of the house to Yale as her separate
property from community property which the lender had required as a
condition of making the loan.
      Yale and Knight reached a settlement of their dissolution action which
provided in part that she would pay him $260,000. She did this by
withdrawing $60,000 from her Vanguard accounts and assuming the
$200,000 in debt that Knight had incurred.


                                       23
      B. Discussion
      The amount of debt which Yale assumed to meet the terms of her
dissolution settlement with Knight is not a separate item of damages as
Bowne contends. Instead, as Yale argues, her assumption of the debt
represented by the balance due on the HELOC was a means for her to satisfy
her monetary obligation to Knight under their settlement without further
liquidating her Vanguard accounts or raising funds from other sources. It
was thus a “proxy” for a cash payment of the balance of the settlement
amount. Yale testified that she did not want to totally liquidate the
Vanguard accounts to satisfy her obligations under the dissolution
settlement. Instead, she took $60,000 from her Vanguard account and
discharged the balance of her monetary obligation to Knight by taking over
the HELOC debt which Knight had incurred. Bowne simply mischaracterizes
the reason why Yale assumed the sole obligation to repay the $200,000 which
Knight had borrowed. His contention lacks merit.14




14    In his cross-appellant’s reply brief, Bowne claims that Yale has raised
new arguments on appeal. Bowne does as well. However, new arguments
raised for the first time in a reply brief are properly disregarded. (E.g.,
Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11; Reichardt v.
Hoffman (1997) 52 Cal.App.4th 754, 763-765.) The same principle applies to
the arguments newly advanced in the letter briefs the parties filed in
response to our first letter of inquiry prior to argument. Therefore, we do not
consider any such arguments.


                                      24
                                DISPOSITION
      The judgment is modified by striking the award of damages for $57,170
in investment losses. As modified, the judgment is affirmed. Each party is to
bear its own costs on appeal.



                                                                         *
                                          ________________________, J.
                                                GOODMAN
We concur:


_________________________, Acting P.J.
       CHAVEZ


_________________________, J.
    HOFFSTADT




*
      Retired Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
                                     25
Filed 3/10/17
                CERTIFIED FOR PARTIAL PUBLICATION*

    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION TWO


VALERIE YALE,                          B260762

       Plaintiff and Appellant,        (Los Angeles County
                                        Super. Ct. No. BC499388)
       v.
                                       ORDER MODIFYING OPINION
                                       AND CERTIFYING FOR PARTIAL
ROBERT R. BOWNE, II,
                                       PUBLICATION

       Defendant and Appellant.        [NO CHANGE IN JUDGMENT]




THE COURT:

     The opinion filed herein on February 9, 2017, was not certified for
publication in the Official Reports. For good cause it now appears that
the opinion, as modified, should be partially published in the Official
Reports and it is so ordered.

       It is further ordered that the opinion be modified as follows:

Page 1:
     Line 1, substitute the words “CERTIFIED FOR PARTIAL
PUBLICATION*” for “NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS” and add at the bottom the page an asterisk footnote
containing the following language: “Pursuant to California Rules of
Court, rules 8.1105 and 8.1110, this opinion is ordered certified for
publication with the exception of parts II, III and IV.”
Page 2:
     Delete the second full paragraph, beginning with the words “Each
party,” and replace it with the following paragraph:

       “Each party finds error in elements of the jury’s monetary award,
and in the trial court’s denial of Yale’s motion for prejudgment interest.
[fn. 2] In the published portion of this opinion, we conclude that the
trial court correctly gave the comparative fault instruction requested by
Bowne. In the unpublished portions of this opinion we conclude that
substantial evidence supports the jury’s award of $260,000 in damages
(to be reduced under the jury’s comparative fault determination), but
that the award of $57,170 for investment losses claimed by Yale was not
supported by substantial evidence; nor is Yale entitled to prejudgment
interest.”

     The language of footnote 2 remains unchanged. Footnote 2 reads:

      “2 Bowne does not contest the jury’s finding that he was
negligent.”

      In the sentence beginning “Yale grew up,” the word “electronic” is
deleted and the word “electronics” is inserted in its place.

Page 5: In the second to last line, the term “E.T.F.S” is deleted and the
term “E.T.F.s” is inserted in its place.

Page 16:
     Delete the second full paragraph, which begins with the words:
“We defer discussion . . . .”

Page 19: In the final paragraph, beginning with the words “Yale
testified,” delete the second sentence, beginning with the words “Bowne
points out,” and replace this sentence with the following sentence:
“Bowne points out that he did not cause the claimed investment loss;
                                    2
rather it was solely a result of Yale deciding not to repurchase the same
securities in mid-January 2012; he also points out, when she re-entered
the market, she did so under a different investment perspective.”




Page 25:
     Immediately following the Disposition, substitute the words
“CERTIFIED FOR PARTIAL PUBLICATION” for “NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS”

       This modification makes no change in the judgment.




__________________________________________________________________
CHAVEZ, Acting P.J.         HOFFSTADT, J.          GOODMAN, J.†

†        Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.




                                                  3
