Wisper Corp. v. California Commerce Bank

California Commerce Bank (CCB) appeals a judgment following a jury verdict finding it liable for (1) 25 percent of the damages suffered by Wisper Corporation N.V. (Wisper) caused by CCB’s negligence in dealing with Edgar Benitez (Benitez), an employee of Wisper who diverted proceeds of Wisper’s checks through an account he opened with *952 CCB, and (2) conversion of one check payable to International Investments Corporation (International). CCB contends on appeal: (1) CCB is not liable to Wisper because Benitez was listed as an alternate payee on most of the checks diverted by Benitez; (2) equitable estoppel applies to bar International’s claim; (3) the Code of Civil Procedure 2 section 339, subdivision 1 two-year statute of limitations applies to bar Wisper’s claim for most of the check proceeds diverted by Benitez; (4) CCB is entitled to a setoff for amounts paid by Benitez to Wisper; (5) the court erred by awarding Wisper postjudgment interest from the date of the verdict rather than from the date of entry of judgment; (6) the court erred by denying a motion for costs filed by Banco Nacionale de Mexico, Banamex USA and Banamex Holding Company (collectively Banamex),…

J.,Concurring and Dissenting.—I concur with the majority opinion, except for part XIII in which Wisper is denied Civil Code section 3287 prejudgment interest. On that issue alone, I respectfully dissent.

I do not believe the California Supreme Court in 1975 intended by its adoption of the pure comparative negligence system in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ] to deny plaintiffs Civil Code section 3287 prejudgment interest to which they would have been entitled prior to its Li decision. “Pure” comparative negligence did not exist in California in 1872 when the Legislature enacted Civil Code section 3287. For over 100 years, a plaintiff who proved a defendant’s negligence and suffered damages that were certain was entitled to prejudgment interest. I question whether, as the majority opinion apparently concludes, the Li decision could somehow completely eliminate a plaintiff’s entitlement to statutory prejudgment interest in any case in which any significant comparative negligence of a plaintiff is found. Assume a plaintiff is found 1 percent negligent and the defendant is found 99 percent negligent. Should that…

Higgs, Fletcher & Mack and Greg A. McAtee for Objector and Appellant.

[Opinion certified for partial publication. [1] ]

OPINION

HUFFMAN, J.

California Commerce Bank (CCB) appeals a judgment following a jury verdict finding it liable for (1) 25 percent of the damages suffered by Wisper Corporation N.V. (Wisper) caused by CCB's negligence in dealing with Edgar Benitez (Benitez), an employee of Wisper who diverted proceeds of Wisper's checks through an account he opened with CCB, and (2) conversion of one check payable to International Investments Corporation (International). CCB contends on appeal: (1) CCB is not liable to Wisper because Benitez was listed as an alternate payee on most of the checks diverted by Benitez; (2) equitable estoppel applies to bar International's claim; (3) the Code of Civil Procedure [2] section 339, subdivision 1 two-year statute of limitations applies to bar Wisper's claim for most of the check proceeds diverted by Benitez; (4) CCB is entitled to a setoff for amounts paid by Benitez to Wisper; (5) the court erred by awarding Wisper postjudgment interest from the date of the verdict rather than from the date of entry of judgment; (6) the court erred…