[00:00:00] Speaker 01:
Good morning, Your Honor. Sun Chen, Mayor of Peace Court.

[00:00:07] Speaker 01:
This is an insurance subrogation case. The underlying dispute is international shipping.

[00:00:14] Speaker 01:
And we contend in this court's ruling on partial summary judgment erroneously identified a person which is intact, limited, which is not a party of this action.

[00:00:29] Speaker 01:
And also, since it is an insurance subrogation action, only the insurance right is limited to what the subrogate is right. And in this case, the subrogate is Gila, Trans-California.

[00:00:48] Speaker 01:
There's no case we can find that the district court can grant a judgment in favor of a non-party and against a party defendant who is top ceiling.

[00:01:00] Speaker 02:
So we believe that's a fundamental error because the... Were you claiming that the paperwork wasn't done right, that the insured designates the person acting on its behalf, and then when the subrogation agreement was done...

[00:01:16] Speaker 02:
that that wasn't done all correctly? What evidence do you have that shows that there was some sort of gap there and that the rights didn't land in the right hands?

[00:01:27] Speaker 01:
Yes, in the insurance policy, the only person identified as insured is Peter Tran, California. And in the subrogation agreement, it says very clearly insured is Peter Tran. And there's nothing mentioned about Intac, which happened to be a constant need in the top sealants beyond Lading.

[00:01:46] Speaker 01:
So based on California law on insurance, only insured, the insurer can subrogate into it. And the intact is being mentioned in a certificate which is issued by Peter Tran, but by itself, it doesn't translate into as insured.

[00:02:04] Speaker 02:
Suppose we, you know, disagree with you on this particular point, and we think that A person who can exercise the rights is, in fact, in front of us. Tell us why you think you should, why you still should prevail.

[00:02:22] Speaker 02:
Which person? You mean PL Trans?

[00:02:25] Speaker 02:
So suppose we conclude that Atlantic Specialty is, in fact, the proper party to be asserting the rights against you. Tell us why you would think in that circumstance you would win on the merits. Sure. Sure.

[00:02:39] Speaker 01:
Also, there is a three-day notice, which is in the COXA, I believe Section 3, Subsection 6, which mandates the receiving party to notify the carrier if there's any damage so the carrier can exercise his right to get a surveyor to find out what's the nature of damage. But that notice was not given to Taupe Sealand at all.

[00:03:04] Speaker 02:
In fact, the notice was given... What would follow from the notice not being given is a prima facie assumption about the condition of the goods. But the district court's order, as I read it, and tell me if I'm wrong, seemed to entertain that presumption, but say there was abundant evidence to rebut it in the record, and therefore seems to have accepted the argument here, at least arguendo. So I'm...

[00:03:34] Speaker 02:
It really comes down to the point whether the district court was wrong about saying that there was abundant evidence to rebut it.

[00:03:40] Speaker 01:
Actually, it was wrong because the court did not specify any evidence. The only time the damage was discovered is during final delivery to 4A of 21, which is on August, I believe, 23.

[00:03:53] Speaker 02:
Right, but the district court looked at what evidence was in the record about where it was and the conditions it was under between the point it, you know, left the port to when it arrived at the facility in August and said, you know, it didn't rain during that time. There's no evidence it was exposed to anything. So the district court seemed to take account of that in saying that the Any presumption arising from the notice issue was rebutted. Am I reading this wrong?

[00:04:24] Speaker 01:
So the problem is the ability to discover the nature of damage. That's triggered by 3D notice. And since we have no notice, we cannot send a professional surveyor to find out how it is damaged, and more importantly, when it was damaged. If you can show that the fresh water, assuming it's fresh water, is damaged within a month, because actually the arrival date is July 25th, and the delivery date, I believe, is August 17th.

[00:04:59] Speaker 01:
So I think that's a critical issue. And also another critical issue is when the surveyor engaged by insurance company going to look at the goods, the container is no longer there. That's the issue of a chain of custody.

[00:05:13] Speaker 00:
There was an assertion that the notation of damages on the Yamco truck lines delivery receipt, that the cargo was rejected by Forever 21 was sufficient notice?

[00:05:25] Speaker 01:
That's only notice of the damage, but not a degree of damages, because the cartons is stacked in many layers. Actually, top layers from the picture is not damaged at all.

[00:05:38] Speaker 00:
So you disagree that that evidence was sufficient to place all the parties on notice, including Seaglen?

[00:05:47] Speaker 01:
No, but the problem is that my client doesn't have a chance to inspect. And we also put upon discovery. And we also have no chance to find out exactly what's the nature of the damage to the garments.

[00:05:58] Speaker 00:
Collins said that because you had an opportunity to inspect that you were maybe directly notified. What that did is create a presumption or a prima facie case that there wasn't any damage during the course of the shipment. But ultimately, you had the evidence submitted to the district court that there was this damage, and the damage was proven.

[00:06:27] Speaker 01:
Okay, I think the extent of damage is one issue, and also there's an equitable issue, because that's why we mentioned a Q clause. And the caucus I did a cute cross because my client is a free forwarder its job is to turn over the container to the ocean carrier, which is in this case a hamper shot. Actually there to be of leading, but the plenty of choose to not to shoe hamper shot and instead of to my clients alone as your I cannot find any single case on the visa may be to locate. that the damage issue, only the freight forwarder being held liable, but not the ocean carrier.

[00:07:01] Speaker 01:
Because my client turned over the container of goods, and it's non-disputed, it's in good condition. After that, my client's freight forwarder has no possession, no custody, no control of the merchandise.

[00:07:14] Speaker 01:
And right now, I think the issue is when, if it is damaged, when was damaged. And my client doesn't have the opportunity because the subrogate, violated the mandatory rule to give a 3-day notice. So we cannot present evidence when the water ship is going into the goods.

[00:07:35] Speaker 02:
So I think... Was there any third-party discovery taken of the shipper?

[00:07:40] Speaker 02:
Of the boat operator?

[00:07:44] Speaker 02:
Okay, yes. Was there any third-party discovery taken? I mean, you're saying that the shipping company was not a defendant, but Was third-party discovery taken of it as to what happened during the transit across the Pacific?

[00:08:00] Speaker 01:
I think there's no way to... Okay, first of all, upon discovery, we have no response. There's no... Right now, nobody knows when the water seepage go into the container. And also, there's no evidence that when the container... How the white container causes these damages. And also, most importantly, we don't know when that damage occurred.

[00:08:21] Speaker 01:
So... There's no way to find. Most importantly, my client should have his right to go inspect the goods directly. But that right is totally being cut off. So eventually, when we try to do any discovery, the container is no longer there. The merchandise is no longer there. Nothing is there.

[00:08:40] Speaker 01:
The only thing left is cover pictures.

[00:08:41] Speaker 02:
Suppose that notice had been given. It was all caught at the port. of Los Angeles when the container comes off and the goods are discovered to be damaged, then what would happen? Would you lose at that point?

[00:08:57] Speaker 01:
I think that's a hypothetical.

[00:09:01] Speaker 02:
I know it's a hypothetical, but I want to understand what the applicable rules of law are. So in that circumstance, you get the notice, you discover right when the container is opened in the Port of Los Angeles, It's all damaged. Are you then liable?

[00:09:18] Speaker 01:
I think you may not because this is equity case. I mean, this is case in equity.

[00:09:24] Speaker 01:
Applying the Q clause, my client has no act, no omission, which can cause this damage.

[00:09:31] Speaker 01:
So by applying the equitable rules and applying the Q clause under COGSA, my client should not be held liable because it's not negligent in any way, even though if the goods is damaged.

[00:09:44] Speaker 02:
And you don't think COGSA puts any burden on you in that kind of situation to establish an alternative cause?

[00:09:53] Speaker 01:
Yeah, we have a burden if we have a chance to inspect. See, this is a circular argument presented by Plaintiff. See, we did not present evidence, but the problem is we are totally deprived of any opportunity to discover any evidence

[00:10:09] Speaker 02:
But that's why my hypothetical was to take the notice issue out of the case. If we didn't have the notice issue, would you then lose because COGSA puts a burden on you to show the alternative clause and you didn't carry it?

[00:10:22] Speaker 01:
No, because then we apply the equity principle, look at the facts, like I said, look at the Q clause, which my client has no act, no admission, which will possibly lead to these damages. I think the only person more likely to cause damage may be the ocean carrier.

[00:10:37] Speaker 00:
As to the Q clause, I believe one of the cases cited is Quaker Oats versus MV Torbanger, and the court held that the presumption of fault is not rebutted by simple proof of the carrier's own due diligence.

[00:10:52] Speaker 00:
for the Q Clause to come into play, the carrier must first prove what the other cause was.

[00:10:57] Speaker 00:
Do you believe Quaker Oats applies in your case and would not support your position?

[00:11:04] Speaker 01:
I don't believe exactly because again, This is a subrogation action. We believe an equitable principle applies. So by applied equitable principle, I don't think that we need to draw the assumption which is against my client.

[00:11:19] Speaker 00:
So this equitable principle, what case is that derived from?

[00:11:23] Speaker 01:
Which one?

[00:11:24] Speaker 00:
You said these equitable principles. Are you relying upon the Q clause or something independent beyond that?

[00:11:28] Speaker 01:
I think we started in general because it's a subrogation case.

[00:11:34] Speaker 01:
It's where the equitable principle should apply because the subrogation is an equitable claim.

[00:11:39] Speaker 00:
And do you have a particular case that specifically is related to these sorts of issues that you rely upon?

[00:11:46] Speaker 01:
Not directly related to the ocean shipping, but it's general. I think I can cite it in the brief that the equitable principle applies to subrogation cases.

[00:11:58] Speaker 03:
Counsel, you have... You were, the district court awarded the damages for the mitigation efforts. And do you want to tell me why you shouldn't be liable for the mitigation damages?

[00:12:10] Speaker 01:
Because I believe that the purpose of the statute is to make the plaintiff whole. And by providing the fair market value to the plaintiff, they already recovered everything they lost.

[00:12:23] Speaker 03:
Did they have a duty to try to mitigate damages?

[00:12:26] Speaker 01:
Yes, they do.

[00:12:27] Speaker 03:
Okay. If they have a duty to mitigate damages and they spend money trying to mitigate damages and it's not successful, then they're out that money. Are they able to recoup that from your client?

[00:12:37] Speaker 01:
That should not be recouped from us because that means they're being compensated more than the fair value of the merchandise.

[00:12:45] Speaker 03:
But I'm sorry, I didn't understand that.

[00:12:46] Speaker 01:
The reason is because by adding another remediation cost, even go beyond what they are compensated for because they are only entitled to compensate to a degree of damages.

[00:12:58] Speaker 03:
Right. But if the law imposes a duty to mitigate damages and the mitigation efforts cost more than they're able to save, then they're going to be out additional money that the law apparently requires them to spend. The insurance company has paid for that. Why shouldn't they be able to recoup that from your client?

[00:13:17] Speaker 01:
I think that's a factual issue, too, whether that mitigation was justified. Because our contention is that most of our merchandise are not damaged. The mitigation effort to clean up the damage should restore the merchandise to its original position. If that's the case, then the plaintiff should not be entitled to the market value at all because the goods are not damaged.

[00:13:41] Speaker 03:
Right, but the mitigation efforts here were not successful.

[00:13:44] Speaker 01:
Yeah, but, okay, if it's not successful...

[00:13:47] Speaker 01:
I think that's a jury finding, I think.

[00:13:49] Speaker 02:
But what's your authority as a legal matter for the proposition that they're not allowed to obtain more than the value of goods and cannot recover the reasonable costs of mitigation efforts that prove to be unsuccessful?

[00:14:06] Speaker 02:
What authority says that they can't get that and then it's capped in the way you say?

[00:14:10] Speaker 01:
I'm not sure there's any case directly. But on the other hand, there's also no case that plaintiffs are entitled to market value plus any failure of mitigation. I don't believe that's the case either. I don't believe any case is directly on point in either way.

[00:14:26] Speaker 03:
But from their perspective, they can't be made whole. The law imposes on them an obligation to mitigate, and they do their best.

[00:14:34] Speaker 01:
No, but the problem is equitable conduct because the evidence shows that a lot of merchandise are not damaged. They could take those merchandise and instead of the court giving the... Okay, well, that's just a factual dispute, right?

[00:14:50] Speaker 03:
That's just, that's not...

[00:14:52] Speaker 03:
You're not contesting the principle about recovering the mitigation costs. Now you're arguing you shouldn't have gotten it in this case because the goods weren't actually damaged as badly as Forever 21 thought they were.

[00:15:03] Speaker 01:
I think it's against equitable principle that the plaintiff is allowed to recover both the market value and the mitigation cost. The mitigation is that they have to do something at their own risk. You limit the poor judgment. I think they show this.

[00:15:17] Speaker 01:
responsible for their loss. That's my understanding. Otherwise, why should the defendant be punished for paying both the market value plus the so-called failure of mitigation? Because we believe that could be avoided or that should be totally eliminate the compensation of the market value because of mitigation efforts.

[00:15:40] Speaker 03:
If we adopted your rule, counsel, that would shift the cost of mitigation or the risk of mitigation efforts not going well to the owner of the goods. And that means that in the future, a company like Forever 21 will say, well, we got burned last time. We're just going to declare it a total loss and we're not going to try to mitigate. Then your client would have grounds to come and say, well, that's not fair.

[00:16:04] Speaker 03:
The damages aren't as bad as you say they are. I mean, you're sort of, we have to cut one way or the other here, counsel.

[00:16:10] Speaker 01:
I think that's the issue of reasonableness. I believe that's the more issue.

[00:16:14] Speaker 03:
Well, but again, if your argument is that these efforts, the mitigation efforts here were not reasonable, that would be for the fact finder to determine whether these were reasonable efforts.

[00:16:27] Speaker 03:
But the question here is if they have a legal obligation to engage in mitigation, and it is unsuccessful, who bears the risk of that?

[00:16:38] Speaker 01:
I believe that the plaintiff should bear that cost because otherwise you will be totally inequitable. You will punish the defendant because the defendant will be borne true cost.

[00:16:49] Speaker 01:
And in this case particularly, equity point out where the defendant is totally not at fault because we have no control over the merchandise. We are in no way responsible for the damage if there's any of the merchandise.

[00:17:01] Speaker 02:
All right.

[00:17:02] Speaker 01:
Thank you, counsel.

[00:17:02] Speaker 02:
We've taken you over, but I'll give you two minutes for rebuttal. All right.

[00:17:08] Speaker 02:
So we'll hear now from Mr. Tabriski.

[00:17:12] Speaker 04:
May it please the court. My name is Joe Tabriski, and I represent Atlantic Specialty Insurance Company.

[00:17:19] Speaker 04:
I'd like to, since we are on a cross-appeal, I'd like to reserve two minutes to answer any questions.

[00:17:25] Speaker 02:
No, there's no reservable time on cross-appeal. You do it all now.

[00:17:29] Speaker 04:
All right. That's fine. Thank you, Your Honor.

[00:17:32] Speaker 04:
To address, I'm going to address mainly the questions that I heard Judge Bybee and Judge Collins, you raised.

[00:17:39] Speaker 02:
Can you just address the threshold question and explain why, in your view, there's no issue about the right party being in front of us?

[00:17:50] Speaker 04:
Very simply, there was a certificate of insurance issued, much like you would do with any other carrier. For example, household goods. You go to a household goods trucker, and they say we want to transport it from A to B, and the trucker says, do you have insurance? They can issue a certificate of insurance, and you're covered under the policy. Pillar Trans here had the authority through its broker to issue an insurance, a certificate of insurance. That certificate of insurance insured Intec for its risk of loss while the cargo was in transit.

[00:18:26] Speaker 04:
The evidence was, including at the time of trial, Mrs. Sim, who was the managing director of Pillar Trans, indicated that upon receipt of the funds, the $108,000 paid by Atlantic Specialty, that she conveyed the net sum to INTEC less the soon labor that Pillar Transit incurred in trying to do the mitigation damages or mitigate the loss so that, in fact, Intec received the funds, were subrogated to the rights of Intec during the transit.

[00:19:10] Speaker 04:
Intec had the risk of loss all through transit, so we're the proper party under the Certificate of Insurance. And the Certificate of Insurance was properly pled.

[00:19:20] Speaker 04:
It identified Intec as the insured. We pled it in the First Amendment complaint. It was evidence used at the time of the summary judgment, also evidence at the time of trial. So there wasn't any question, really, that we were the proper party.

[00:19:38] Speaker 04:
The second question as to mitigation.

[00:19:42] Speaker 02:
What was interesting, I mean, this is not an unusual fact pattern in shipping, and shipping is not a recent technological innovation. Is there no case, one way or another, that squarely addresses the issue of the recoverability of reasonable mitigation efforts that failed in In contract cases?

[00:20:12] Speaker 04:
Most certainly in the Ninth Circuit, we haven't seen it.

[00:20:15] Speaker 02:
But even in the states, by common law analogy, is there nothing?

[00:20:20] Speaker 04:
In context of contract law, absolutely. Mitigation is always a recoverable damage in straight contract cases, whether it's whatever state you happen to be in. It's basic. What we indicated in the- Did you cite any of that kind of authority in your- I cited authority in the brief relating to the basic contract damages, relating to mitigation, also the- But that's specifically held that you can recover reasonable mitigation costs that fail.

[00:20:52] Speaker 02:
Yes. Okay. Yes. What case did you cite for that proposition? Yes. Yes.

[00:21:07] Speaker 04:
Inray Kellett, Aircraft Corp., 186F2nd, 197, 198-199, Third Circuit, 1950, Federal Insurance Company v. Sabine, S-A-B-I-N-E, Towing and Transportation Company, 783F2nd, 347, and 350, Second Circuit, 1986. The quote was, where choice has been required, between two reasonable courses, the person who's wrong forced the choice cannot complain that one rather than the other was chosen.

[00:21:44] Speaker 04:
The rule of mitigation damages may not be invoked by a contract breaker as a basis for hypercritical examination of the conduct of the injured party or merely for the purpose of showing that the injured person might have taken steps which seemed wiser or would have been more advantageous to the defaulter.

[00:22:05] Speaker 04:
The other one is Tennessee Valley Sand and Gravel Company versus MV Delta 598 F Second 930. And in that case, the fact that his efforts turn out to be unsuccessful and actually increase the loss does not preclude recovery for all expenses incurred in the process.

[00:22:30] Speaker 04:
Now, in this particular instance, InTech was the middleman, and it bore the risk. It wanted the contract to go forward. This wasn't Forever 21 making the decision. It wanted this contract to proceed, so it did what it could to mitigate the damages and at least get something from Forever 21 for these goods. It failed.

[00:22:56] Speaker 04:
So it can't be...

[00:22:59] Speaker 04:
said that they should lose the right of recovering those damages simply because there's an invoice price when they're trying to mitigate. They're trying to do what they can to reduce the expenses. Now, the other reason that mitigation here should be kept in mind is The other thing that the court failed to account for was the salvage.

[00:23:33] Speaker 04:
It was sold for $6,000 in its somewhat damaged state.

[00:23:40] Speaker 04:
And what did mitigation do to increase that salvage value?

[00:23:47] Speaker 04:
I mean, if they hadn't mitigated anything and they just said, we're going to salvage this and it's $1,000 or it's cloth scrap or whatever,

[00:23:57] Speaker 00:
No.

[00:23:57] Speaker 04:
They put the effort out. They tried to reduce the damages. It didn't work. They salvaged it. The court didn't even account for the salvage. So in our view, and the court didn't say anything about this being an unreasonable attempt to mitigate. It didn't attempt to say that any of the expenses were somehow outside the realm of what a normal damage case would be.

[00:24:26] Speaker 04:
the court made a decision of law, so this court can instruct it to say, no, those are recoverable damages, and you also need to account for the salvage, taking us to the $91,000, roughly $91,000 that should have been awarded.

[00:24:43] Speaker 04:
So that takes us to the next step, which is the prejudgment interest.

[00:24:48] Speaker 04:
And on the prejudgment interest, again, excuse me, Neither party at any time up through trial argued 28 U.S.C. 1961 prejudgment interest rate.

[00:25:08] Speaker 04:
Because the bill of lading incorporated state law.

[00:25:12] Speaker 02:
But we have a case that says that the statute which prescribes the post judgment interest rate will be applied as the prejudgment interest rate. an admiralty law unless equitable circumstances indicate otherwise. So that made the statute highly pertinent, even if neither side decided it.

[00:25:34] Speaker 04:
I agree, Your Honor, to some extent it does make it pertinent, but it also says that it talks about the cases, whether it's Western Pacific Fisheries or Columbia Brickworks, also talked about appropriate and used that term. .07 On the date of the incident, August 17th.

[00:25:57] Speaker 02:
The interest rates were low at that time.

[00:26:00] Speaker 04:
But the court, again, Your Honor, when you look at, for example, the Supreme Court.

[00:26:05] Speaker 02:
10% is not a market rate. That's a really good rate if you can get that.

[00:26:09] UNKNOWN:
0.07%?

[00:26:09] Speaker 02:
10%, which is the rate you want, the statutory California rate.

[00:26:17] Speaker 02:
is well above market under the conditions. Why isn't it inequitable to apply that? I mean, this is a federal law question, isn't it?

[00:26:27] Speaker 04:
Yes and no. But remember, the Supreme Court held in great lengths that the parties could adopt, could choose the law to apply.

[00:26:36] Speaker 02:
But did it say that with respect to an issue where there is a federal statute on points?

[00:26:45] Speaker 04:
1961 isn't on point. It's post-judgment, not prejudgment.

[00:26:53] Speaker 02:
says that as a matter of substantive admiralty law, we will borrow that as the applicable rate of interest unless the circumstances indicate otherwise.

[00:27:04] Speaker 04:
And the circumstances should indicate otherwise because if you're talking about – remember, one of the other things that the Ninth Circuit said was that if you do it so low that it's in the interest of the defendant just to sit back and let – and just keep stalling, then you're not accomplishing a compensation to the plaintiff.

[00:27:34] Speaker 04:
And that's what's been going on here. There's no ability for us to compel the defendant to be reasonable because the defendant can sit back and do nothing. at 0.07%, we're looking at a few hundred dollars over a four-year period that have been accumulated on roughly $91,000 in losses. Now, again, going back to the Ninth Circuit has never addressed the question of a choice of law in the context of prejudgment interest.

[00:28:11] Speaker 04:
In other contexts, For example, attorney's fees, as it relates to a bill of lading, the Ninth Circuit has addressed it and applied foreign law. Here we have the carrier's own bill of lading adopting California state law. The loss occurred in California. The cargo was delivered in California.

[00:28:31] Speaker 04:
In terms of policies and in terms of equities, which the Ninth Circuit referred to in Western Pacific and as well as in Columbia Brickworks, it points to the application of the state law rate over the .07 that was under 1961. Otherwise, we are imprinting on 1961 and making it the default prejudgment interest. And that's not what the Ninth Circuit said. It said we're appropriate. Even in certain circumstances, the Ninth Circuit said that if the court could adopt the state rate if it was lower than the market rate, if it was appropriate.

[00:29:16] Speaker 04:
So here we have a situation where neither Western Pacific Fisheries nor Columbia Brickworks address the question of what do you do when the bill of lading incorporates the law of the port of delivery And that law is adopted by the carrier in its bill of lading.

[00:29:44] Speaker 04:
And in this situation, it makes its compensable to the plaintiff to incorporate the state rate that the carrier incorporated into its bill of lading.

[00:30:03] Speaker 04:
Now, I think unless there are other questions that the court has on the subjects, I think at this point I have nothing further. Do you have any other questions?

[00:30:18] Speaker 02:
All right. Thank you, Captain.

[00:30:19] Speaker 04:
Thank you.

[00:30:20] Speaker 02:
All right. We'll hear a rebuttal.

[00:30:31] Speaker 01:
To address opposing counsel's couple points. The first one is on mitigation. I think he cited a case which is Tennessee Valley Sand and Gravel Company. But in that case, the court awarded the mitigation damages but did not mention any other compensation. So that case by itself does not present as an argument that opposing counsel is presenting that a plaintiff could be entitled to both market value and mitigation damages.

[00:31:03] Speaker 01:
And as far as the prejudgment interest, I think the bill of lading also at the beginning of paragraph 21 states except it's otherwise provided specifically herein, which means The choice of law clause doesn't even apply because this case, based on the bill relating, is governed by federal law. It's not governed by state law.

[00:31:28] Speaker 01:
And also, to award prejudgment interest, I believe there's an equitable consideration. As I mentioned earlier, there's a lot of inequitable conduct.

[00:31:36] Speaker 02:
I mean, why is this really governed by federal law? Because It's a matter of federal law what rate of interest applies to a federal judgment once it's entered. But the calculation of damages in prejudgment interest is part of a calculation of damages is governed by the substantive law that applies, and there's a choice of law provisions. So why shouldn't that be used as the rule then?

[00:32:07] Speaker 01:
Because I believe calculating damage is part of caucuses' function.

[00:32:11] Speaker 01:
and which is the federal law. And also there's equitable consideration in applied prejudgment interest. I think in this case, I believe that the equitable is much in favor of defendant because due to a lot of inequitable conduct, as I mentioned earlier. And also under California law, to apply a prejudgment interest, which is in the Civil Code 3284, And the damage prejudgment interest is available only when the amount of damage is certain.

[00:32:44] Speaker 01:
In this case, it's not certain at all because it requires the fact finder to calculate, to determine the market value, and also to determine amount of damages. So since the amount of damage is absolutely not certain, under California laws, prejudgment interest should not be applied.

[00:33:03] Speaker 02:
All right.

[00:33:05] Speaker 01:
Actually, there's a case later on.

[00:33:06] Speaker 02:
All right. Thank you, counsel. The case just argued will be submitted, and the court will stand in recess for five minutes.