Filed 12/12/13 Rathee v. Marek CA2/8 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

SECOND APPELLATE DISTRICT 

DIVISION EIGHT 

NEETA RATHEE, 

 Plaintiff and Appellant, 

 v. 

LEE MAREK, 

 Defendant and Appellant. 

 B244400 

 (Los Angeles County 

 Super. Ct. No. BC 430741) 

 ORDER MODIFYING OPINION 

 AND DENYING PETITION FOR 

 REHEARING 

THE COURT:* 

 The opinion filed November 22, 2013, in the above entitled matter is modified in 

the following manner: 

 1. The following is added at the end of page 7 after the last sentence on that page 

and beginning a new paragraph: 

 We also reject Marek’s argument that his promise to pay simply 

restarted the two-year statute of limitation when he made the promise. His 

argument ignores the evidence that he promised to pay the money in 10 

years. While Marek correctly points out that jurors could have disbelieved 

the evidence he promised to repay the money in 10 years, for purposes of a 

judgment notwithstanding the verdict, Marek must show that there is no 
2 

substantial evidence or reasonable inferences in support of the verdict. 

(Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510.) 

Elke v. Rice (1955) 45 Cal.2d 66 does not compel a different result. 

In that case, our high court considered the construction of a prior version of 

Code of Civil Procedure section 360. The court explained that “[t]he 

acknowledgement of a debt already barred by the statute gives rise to a new 

contract and a new cause of action dating from the acknowledgement. . . . 

The acknowledgment of a debt before the statute has run, however, does 

not create a new obligation as of the time of the acknowledgment; it merely 

continues the original obligation through a new statutory period.” (Id. at p. 

73, citations omitted.) Here, the evidence supports either a new contract or 

a continuing obligation as Marek testified that he received the money in 

2000 and Singh testified that it was given to Marek in 2004. In short, 

Marek fails to show that no evidence supported the judgment. 

 There is no change in judgment. 

 Appellant’s petition for rehearing is denied. 

*RUBIN, Acting P. J. FLIER, J. GRIMES, J. 
Filed 11/22/13 (unmodified version) 

NOT TO BE PUBLISHED IN THE 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 

SECOND APPELLATE DISTRICT 

DIVISION EIGHT 

NEETA RATHEE, 

 Plaintiff and Appellant, 

 v. 

LEE MAREK, 

 Defendant and Appellant. 

 B244400 

 (Los Angeles County 

 Super. Ct. No. BC 430741) 

 APPEAL from a judgment and order of the Superior Court of Los Angeles 

County, Michelle R. Rosenblatt, Judge. Judgment affirmed; order reversed. 

 Law Offices of Edward M. Bialack and Edward M. Bialack for Plaintiff and 

Appellant. 

 Law Office of Edward S. Orchon and Edward S. Orchon for Defendant and 

Appellant. 

* * * * * * 
2 

 Defendant Lee Marek admits that he owes plaintiff Neeta Rathee $167,000. 

Nevertheless he challenges the judgment awarding Rathee that amount, arguing that the 

statute of limitations had expired before Rathee filed her lawsuit. We conclude Marek 

failed to show that he was entitled to judgment as a matter of law, and therefore affirm 

the judgment in favor of Rathee. 

 Rathee cross-appeals, challenging the amount of the prejudgment interest awarded 

by the trial court. We conclude that Rathee was entitled to prejudgment interest at the 

rate of 10 percent from the date she filed her complaint until the date of judgment. 

FACTS 

 Neeta Rathee and Vikram Singh married in 1989, separated in 2004, and 

concluded their dissolution proceedings in 2010. While Rathee and Singh were married, 

Singh, a physician, gave community funds to Lee Marek to invest in surgical centers. 

The funds were given either in 2000 (according to Marek) or in 2004 (according to 

Singh). The funds Marek owed the community were awarded to Rathee as her sole and 

separate property at the conclusion of the dissolution proceeding in approximately July 

2010. 

 Marek testified at trial and acknowledged the debt. According to Marek, Singh 

gave him $467,000, and Marek returned $300,000 leaving a balance of $167,000. 

Marek admitted he converted the $167,000 to his personal use, and Marek testified that 

he spent the Rathee/Singh community funds on his rent and car payments instead of 

investing the money in surgical centers. Marek understood he was obligated to return the 

money. 

 In addition to his trial testimony, Marek previously admitted converting the funds 

to his personal use. On July 20, 2004, Marek wrote Singh a letter stating: “The funds 

totaling $167,000 that you have sent to me for the investments in the various surgery 

centers have been used by me for my personal use as per our agreement. [¶] I presently 

do not have the funds to pay back to you as you are requesting. Instead, I suggest that I 

pay to you the funds amortized over ten years at 7% per annum interest. [¶] Since I am 
3 

presently short of money I would appreciate it if I could pay you back the loan starting 

Jan. 1, 2005.” 

 Singh confirmed that he gave Marek community money to invest in surgical 

centers. Singh reminded Marek “on and off” about the loan and Marek sent a letter 

promising to repay it. Marek also orally promised to repay it. 

 Rathee testified that prior to the dissolution proceedings filed in August 2004, she 

knew Singh gave Marek money to invest in surgical centers. During the divorce 

proceedings, she learned Marek owed the community $167,000 when Singh listed 

Marek’s debt on his schedule of assets and liabilities. According to Rathee, Marek 

testified during the divorce proceedings about the debt and testified that it was payable in 

10 years. Although the date of the testimony is not clear from the record, the parties 

appear to agree it was sometime in 2005. 

PROCEDURE 

 On January 28, 2010, Rathee sued Marek alleging numerous causes of action. 

Jurors were asked only about the breach of contract and money had and received causes 

of action. In a special verdict jurors found all of the following: Singh and Marek entered 

into a written contract whereby Singh loaned Marek $167,000. Marek did not pay the 

loan and Rathee was harmed. Marek used community funds for purposes other than to 

benefit Rathee, and Rathee was not aware of such use prior to January 28, 2008. 

 Marek moved for a judgment notwithstanding the verdict on the ground that the 

evidence was insufficient to support the jury finding that a written contract was entered 

into and that the cause of action for money had and received was barred by the applicable 

statute of limitations. The court entered judgment notwithstanding the verdict on the 

cause of action for breach of written contract because there was no written acceptance by 

Singh.1 The court denied the motion as to the cause of action for money had and 

received. 

 

1 Rathee does not challenge that finding on appeal. 
4 

 Rathee moved for an award of prejudgment interest. The court awarded 

prejudgment interest at 7 percent commencing on January 5, 2005. The court rejected 

Rathee’s argument that prejudgment interest should be awarded at the rate of 10 percent 

per annum. 

DISCUSSION 

1. Marek’s Appeal: Denial of Judgment Notwithstanding the Verdict 

 Marek argues the trial court should have granted his motion for judgment 

notwithstanding the verdict on Rathee’s cause of action for money had and received. 

 A motion for a judgment notwithstanding the verdict may be granted only in 

limited circumstances. “[G]iven the constitutional right to jury trial and a policy of 

judicial economy against willy-nilly disregarding juries’ hard work (even, in the case of a 

motion for nonsuit, the work of the jury in listening to the case up to that point), the basic 

rules regarding these motions [for judgment notwithstanding the verdict] are predictably 

strict. Conflicts in the evidence are resolved against the moving defendant and in favor 

of the plaintiff; all reasonable inferences to be drawn from the evidence are drawn against 

the moving defendant and in favor of the plaintiff. [Citations.]” (Fountain Valley 

Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 

Cal.App.4th 743, 750.) 

 “‘A cause of action is stated for money had and received if the defendant is 

indebted to the plaintiff in a certain sum “for money had and received by the defendant 

for the use of the plaintiff.”’” (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 937.) 

The cause of action “‘lies whenever one person has received money which belongs to 

another, and which in equity and good conscience should be paid over to the latter.’” 

(Ibid.) A common count for money had and received is an alternative, common law 

means of pleading an unjust enrichment or quasi-contract cause of action and therefore 

the applicable statute of limitations depends on the underlying theory on which recovery 

is sought. (Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 348.) 

Money had and received based on an obligation not founded on a writing is governed by 
5 

a two-year statute of limitations. (Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718; 

Code Civ. Proc., § 339.) 

 If Marek’s only conduct had been the receipt of money from the community, the 

two-year statute of limitations would have expired. Even assuming that the statute of 

limitations did not begin to run until Rathee learned Marek converted the funds to his 

own use, which Rathee learned in 2005 when Marek testified in the dissolution 

proceeding, Rathee’s lawsuit filed in 2010 was not timely. 

 But in addition to Marek’s receipt of $167,000 in community funds, Marek also 

promised to repay the funds. Specifically on July 20, 2004, Marek wrote: “The funds 

totaling $167,000 that you have sent to me for the investments in the various surgery 

centers have been used by me for my personal use as per our agreement. [¶] I presently 

do not have the funds to pay back to you as you are requesting. Instead, I suggest that I 

pay to you the funds amortized over ten years at 7% per annum interest. [¶] Since I am 

presently short of money I would appreciate it if I could pay you back the loan starting 

Jan. 1, 2005.” Marek testified that he wrote this letter, and the fact that he wrote it was 

undisputed. Marek also testified that he understood that he had to pay back the money. 

Prior to this trial, in the divorce proceedings Marek testified, and he “acknowledged the 

debt, and he said that it was due and payable in ten years.” 

 Marek’s promise to pay the loan extended the statute of limitations. As the 

Restatement explains: “(1) A promise to pay all or part of an antecedent contractual or 

quasi-contractual indebtedness owed by the promissor is binding if the indebtedness is 

still enforceable or would be except for the effect of a statute of limitations. [¶] (2) The 

following facts operate as such a promise unless other facts indicate a different intention: 

[¶] (a) A voluntary acknowledgment to the obligee, admitting the present existence of 

the antecedent indebtedness . . . .” (Rest.2d Contracts, § 82, p. 209.) California law 

codified this principle in Code of Civil Procedure section 360, which provides that a 

written promise signed by the party to be charged creates a continuing obligation.2 

 

2 Code of Civil Procedure section 360 provides: “No acknowledgment or promise is sufficient evidence of a 

new or continuing contract, by which to take the case out of the operation of this title, unless the same is contained 
6 

Marek’s writing -- which was undisputed -- is sufficient to constitute a written 

acknowledgment. Although Marek implies that Rathee’s testimony that the loan was 

payable in 10 years was not credible, he presented no contrary evidence and failed to 

provide the transcript of his testimony during the divorce proceedings. Marek therefore 

fails to show he was entitled to judgment as a matter of law because the statute of 

limitations expired.3

2. Rathee’s Cross-appeal: Amount of Prejudgment Interest 

 The court awarded Rathee prejudgment interest at the rate of 7 percent per annum 

commencing on January 1, 2005. In her cross-appeal, Rathee challenges the trial court’s 

denial of her request for prejudgment interest at the rate of 10 percent per annum. She 

argues that she was entitled to interest at the greater rate because the court should have 

relied on the legal rate of interest not the rate specified in Marek’s July 20, 2004 letter. 

Civil Code section 3289 provides: “(a) Any legal rate of interest stipulated by a contract 

 in some writing, signed by the party to be charged thereby, provided that any payment on account of principal or 

interest due on a promissory note made by the party to be charged shall be deemed a sufficient acknowledgment or 

promise of a continuing contract to stop, from time to time as any such payment is made, the running of the time 

within which an action may be commenced upon the principal sum or upon any installment of principal or interest 

due on such note, and to start the running of a new period of time, but no such payment of itself shall revive a cause 

of action once barred.” 

3 Rathee argues the statute of limitations was tolled until she discovered the claim for money had and 

received and that the statute of limitations was tolled during the pendency of the family law proceedings governing 

her dissolution and division of community property. Her arguments are not persuasive. Even assuming the doctrine 

of delayed discovery is applicable to a cause of action for money had and received, Rathee testified that she was 

aware that Marek held community funds in August 2004. Rathee also testified that Marek testified about the debt 

during the divorce proceedings and, at that time, testified that he converted the money to a personal loan. Therefore 

Rathee had reason to suspect an injury when Marek testified he used her community funds for his personal use. 

(Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 803 [“[U]nder the delayed discovery rule, a cause of 

action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some 

wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have 

revealed a factual basis for that particular cause of action.”].) 

 Nor is there merit to Rathee’s argument that her claim for money had and received was tolled during the 

family law proceedings. Although a family law court may assume jurisdiction over a third party with an interest in 

community property (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1451), the family law court did not assume 

jurisdiction over Marek. Because the family law court did not assume jurisdiction over Marek, there is no merit to 

Rathee’s argument that the family law court’s assumption of jurisdiction prevented another court from doing so. 

Nor is this a case like Burkle v. Burkle (2006) 144 Cal.App.4th 387, 394 in which the wife filed a civil action to 

obtain money ordered in a dissolution proceeding by a party to the dissolution proceeding. As noted, Marek was not 

a party in the dissolution proceeding and a claim against him was not duplicative of the prior dissolution lawsuit. 

Rathee did not seek to enforce the same rights in her lawsuit against Marek as in the family law dissolution 

proceedings, which was concerned about dividing the community property not adjudicating the amount of Marek’s 

debt. (Cf. Elkins v. Derby (1974) 12 Cal.3d 410, 412-413 [statute of limitations tolled in personal injury claim when 

worker sought workers compensation benefits for same injury against same defendant within limitations period].) 
7 

remains chargeable after a breach thereof, as before, until the contract is superseded by a 

verdict or other new obligation. [¶] (b) If a contract entered into after January 1, 1986, 

does not stipulate a legal rate of interest, the obligation shall bear interest at a rate of 10 

percent per annum after a breach.” 

 Here, the trial court found no written contract existed and therefore erred in 

applying the 7 percent rate contained in Marek’s 2004 promising to repay the funds. As 

Rathee argues, the court should have instead applied the 10 percent rate in Civil Code 

section 3289. Marek does not argue otherwise. 

 The court also erred in calculating interest from 2005. By its terms, Civil Code 

section 3289 applies “after a breach.”4 Here the breach occurred when Marek failed to 

pay the loan after Rathee made demand by filing the complaint. Based on this breach, 

Rathee is entitled to prejudgment interest at the rate of 10 percent from the date of the 

filing of the complaint to the date of the judgment. 

DISPOSITION 

 The judgment is affirmed. The postjudgment order awarding Rathee prejudgment 

interest is reversed. The case is remanded to the trial court for the court to recalculate the 

amount of prejudgment interest from the date of Rathee’s complaint to the date of 

judgment. Each party shall bear his or her own costs. 

 

4 Rathee argued that interest follows “both a breach and a liquidated claim.” 
8 

 FLIER, J. 

WE CONCUR: 

 RUBIN, Acting P. J. 

 GRIMES, J.