Montano v. City of South Gate

Opinion

JEFFERSON, J.

An action for personal injuries was instituted by Gilbert D. Montano, both individually and as guardian ad litem for Edward Joseph Montano, a minor, against defendants City of South Gate (hereinafter referred to as the City) and Everett Allen Shong. On October 28, 1968, following a jury trial, judgment was entered in favor of Gilbert D. Montano for $13,000 and in favor of the minor for $65,000 and costs. Plaintiffs’ attorney submitted a cost bill of $794.10.

On November 4, 1968, counsel for the City sent to plaintiffs’ counsel Travelers Insurance Company drafts payable to Gilbert D. Montano in the sum of $13,000 to Gilbert D. Montano as Guardian ad Litem for Edward Joseph Montano in the sum of $65,000, and to both plaintiffs in the sum of $794.10. No interest was included for the week between entry

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of the judgment and tender of payment. A cover letter accompanying the drafts provided that the $65,000 was tendered “for the settlement of Edward Joseph Montano’s judgment” and the $794.10 draft was tendered “for payment of court costs.” The letter also stated, “If there is any interest due on the judgment at the time you receive these drafts, kindly advise me as to the amount and I will make payment.” Plaintiffs’ counsel returned these two drafts explaining that he could not accept the conditional tender on behalf of the minor because he believed the judgment in the minor’s favor to be inadequate and he intended to make a motion for new trial.

Thereafter, a motion for a new trial on behalf of the minor plaintiff was made and, on December 30, 1968, it was denied. On January 21, 1969, the court executed its order approving compromise of the minor’s claim and authorizing plaintiffs’ attorney to furnish defendants with a satisfaction of judgment upon payment to him on behalf of his client of the sum of $65,000 plus $794.10 court costs, and interest on the $65,000 from the date of judgment until January 27, 1969, in the amount of $1,154.90.

On February 10, 1969, the defendants filed a “Notice of Motion to Modify Order Approving Compromise of Minor’s Claim” requesting the court to remove the interest amount from the compromise order on the ground that defendants’ tender of November 4, 1968, stopped the accrual of interest. The trial court orally denied the motion and thereafter by stipulation proceeded on oral motion for satisfaction of judgment (Code Civ. Proc., § 675) to consider, on the basis of the evidence, the issue of whether interest was properly accrued and computed. The court on April 7, 1969, denied the 675 motion on the ground that the tender, though otherwise sufficient, was not unconditional.