Filed 9/29/14 Leung v. Verdugo Hills Hospital CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

AIDAN MING-HO LEUNG,

Plaintiff and Appellant,

v.

VERDUGO HILLS HOSPITAL et al.,

Defendants and Respondents.

 B251366

 (Los Angeles County

 Super. Ct. No. BC343985)

APPEAL from post-judgment orders of the Superior Court of Los Angeles 

County, Laura A. Matz, Judge. Affirmed.

LKP Global Law and Albert T. Liou; Esner, Chang & Boyer and Stuart B. 

Esner for Plaintiff and Appellant.

Fraser, Watson & Croutch, Stephen C. Fraser, Daniel K. Dik; Greines, 

Martin, Stein & Richland, Robert A. Olson and Feris M. Greenberger for 

Defendants and Respondents.

Cole Pedroza, Curtis A. Cole, Kenneth R. Pedroza and Tammy C. Weaver as 

Amici Curiae on behalf of Defendant and Respondent.
2

INTRODUCTION

This appeal arises out of a medical malpractice action brought by plaintiff 

Aidan Leung, through his guardian ad litem, against, among others, Verdugo Hills 

Hospital (Hospital). This is the fourth time the case is before us. This appeal, 

taken from post-judgment orders rendered after the appeal on the merits had 

concluded, involves interpretation of our opinion in Leung v. Verdugo Hills 

Hospital (2008) 168 Cal.App.4th 205 (Leung I). 

Leung I is based on the following circumstances. After the jury returned a 

verdict in favor of plaintiff and against Hospital, the trial court entered a periodic 

payments judgment. Hospital appealed from the judgment. The trial court 

calculated the amount of Hospital’s appeal bond based upon the judgment’s lump 

sum present value. Hospital petitioned for a writ of supersedeas to reduce that 

amount. Hospital contended that the appeal bond should have been calculated only 

on the portion of the judgment that was due or would become due during the 

pendency of the appeal.

In Leung I, we denied Hospital’s petition. We held that for purposes of 

calculating the appeal bond, the trial court properly used the lump sum present 

value of the judgment because that methodology assured plaintiff that he would be 

able to collect the entire judgment in the event Hospital became insolvent during 

the appeal.

The appeal on the merits proceeded. It concluded last year when we 

affirmed the judgment. After we issued the remittitur, litigation commenced in the 

trial court about the amount of post-judgment interest to which plaintiff was 

entitled. Hospital agreed to pay, and did pay, interest on all amounts of the 

judgment that had become due during the appeal, including the periodic payments. 

Plaintiff, however, claimed, that Leung I held that during the pendency of the 

appeal, the judgment in effect was a lump sum present value judgment upon which 
3

he was entitled to collect interest, an amount he calculated to be approximately 

$7.5 million. The trial court rejected plaintiff’s argument. 

In this appeal, plaintiff contends: “Under the law of the case doctrine, the 

present value judgment was the effective judgment during the pendency of this 

appeal, not the periodic payment judgment as the trial court ruled.” We disagree. 

Plaintiff has inaccurately interpreted our opinion in Leung I. Under settled law, 

plaintiff was entitled only to interest on the periodic payments that became due 

during the appeal, interest that Hospital has paid him. We therefore affirm the trial 

court’s orders. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Lawsuit

Plaintiff sued Hospital and Dr. Nishibayashi for professional negligence

alleging that as a result of their actions, he suffered irreversible brain damage.1 

Prior to trial, plaintiff reached a settlement with Dr. Nishibayashi in which the 

doctor agreed to pay the limits of his malpractice insurance ($1 million) and to 

participate in a trial in which a jury would allocate the defendants’ respective fault 

and set damages. In exchange, plaintiff agreed to give Dr. Nishibayashi a release 

of liability. The trial court found that the settlement was not in good faith within

the meaning of sections 877 and 877.6.2 Nevertheless, plaintiff and the doctor 

proceeded with the settlement. 

The case was tried to a jury. The jury returned a verdict finding both

Hospital and Dr. Nishibayashi liable and assigned fault 40 percent to Hospital, 55

 

1

Plaintiff also named the doctor’s professional corporation as a defendant. Our 

references to Dr. Nishibayashi refer also to his corporation. 

2 All undesignated statutory references are to the Code of Civil Procedure.
4

percent to Dr. Nishibayashi, and 5 percent to plaintiff’s parents. The jury awarded

$78,376 in past medical damages, $82,782,000 in future medical damages (with a 

present cash value of $14 million), $13,300,000 in future lost earnings (with a 

present cash value of $1,154,000), and past and future general damages of 

$250,000. 

2. The Judgment and Appeal Bond

At Hospital’s request, the trial court entered a periodic payments judgment

pursuant to section 667.7. The judgment found Hospital jointly and severally 

liable for 95 percent of plaintiff’s economic damages and severally liable for its 40

percent share of his non-economic damages. The judgment required Hospital, 

among other things, to make periodic payments commencing November 1, 2008, 

continuing until either plaintiff’s death or October 1, 2065, whichever came first. 

A detailed schedule setting forth the monthly payments for each year was attached 

to the judgment. The judgment also awarded plaintiff, among other sums: (1)

$1,085,338.86 in prejudgment interest because Hospital had rejected plaintiff’s 

section 998 offer to compromise (Civ. Code, § 3291) and (2) $221,034.93 for 

recoverable costs. 

In Leung I, supra, 168 Cal.App.4th 204, we summarized the relevant facts

regarding Hospital’s posting of an appeal bond as follows.

“As part of the judgment, the [trial] court ordered the Hospital to provide 

security for the periodic payments within 30 days in the form of a bond from an 

admitted California surety, or an annuity from an approved list of companies 

sufficient to fund the periodic payments. The court also ordered that if the 

Hospital failed to post such security, then plaintiff would recover from the Hospital 

the sum of $14,893,277.56, representing the present value of the judgment.
5

“The [trial] court issued a separate stay of the judgment to expire 10 days 

after the last date on which a notice of appeal could be filed. The Hospital 

appealed from the judgment, and plaintiff filed a cross-appeal.

“The Hospital then filed an ex parte application requesting the court to set 

the amount of the appeal bond under section 917.1. The Hospital posited three 

alternative judgment amounts against which to apply the 1.5 multiplier: (1) the 

portion of the judgment presently due, plus that portion of the periodic payments 

that will come due during the estimated pendency of the appeal; (2) the preceding 

portions of the judgment, plus the cost of an annuity to secure the periodic 

payments portion of the judgment; or (3) the present value of the judgment. The 

Hospital advocated the first alternative. The court, agreeing with plaintiff, adopted 

the third, and required the Hospital to post a bond in the amount of more than $22 

million ($22,339,916.34, or 1.5 times the $14,893,277.56 present value of the 

judgment).

“The Hospital filed a petition for writ of supersedeas in this court, requesting 

that we set aside the trial court’s ruling and order the amount of the bond set at 1.5 

times the amounts of the judgment that are presently due and that [would] likely 

come due during the appeal. We summarily denied the petition for failure to show 

entitlement to extraordinary relief.

“The Hospital then posted the required appeal bond of more than $22 

million, at an annual premium of $64,680. Twenty days later, even though the 

posting of the appeal bond stayed the judgment and its requirement of security for 

the periodic payments, the Hospital purchased an annuity to secure the periodic 

payments at a premium of more than $5.1 million.[3]

 

3

The trial court found that the $22 million appeal bond was sufficient both to stay 

execution of the judgment and to stay Hospital’s obligation, as set forth in the judgment, 

to purchase an annuity. 
6

“The Hospital moved under section 996.030 to substitute a lesser bond, 

arguing that the $22 million bond was excessive in light of the purchase of the 

annuity to secure the periodic payments. Again, the Hospital sought to have the 

bond amount calculated based on the portion of the judgment presently due plus 

that portion of the periodic payments that will come due during the estimated 

pendency of the appeal. The Hospital calculated the requested bond amount at

$5,399,278.41 (assuming the appeal is pending up to Nov. 1, 2012) or 

$5,802,046.41 (assuming the appeal is pending up to Nov. 1, 2013). The trial court 

denied the motion. 

“For the second time, the Hospital petitioned this court for a writ of 

supersedeas, and for the second time we summarily denied the petition. The 

California Supreme Court, however, granted the Hospital’s petition for review and 

transferred the case back to us, with directions to vacate our denial and issue an 

order to show cause. We complied.” (Leung I, supra, 168 Cal.App.4th at pp. 210-

211.) 

3. Our Opinion Regarding the Appeal Bond

In Leung I,, we held that the trial court properly set the amount of the appeal 

bond based on the lump sum present value of the judgment. 

We explained: “Section 917.1 provides in relevant part that ‘[u]nless an 

undertaking is given, the perfecting of an appeal shall not stay enforcement of [a] 

judgment or order . . . for . . . [¶] . . . [m]oney or the payment of money . . . .’

(§ 917.1, subd. (a)(1).) The purpose of the undertaking requirement is ‘to protect 

the judgment won in the trial court from becoming uncollectible while the 

judgment is subjected to appellate review. [Citation.] A successful litigant will 

 
7

have an assured source of funds to meet the amount of the money judgment, costs 

and postjudgment interest after postponing enjoyment of a trial court victory.’ 

(Grant v. Superior Court (1990) 225 Cal.App.3d 929, 934.) In implementing this 

purpose, section 917.1 does not tailor the amount of the undertaking to the 

peculiarities of the judgment. To the contrary, it is rigidly formulaic: ‘The 

undertaking shall be for double the amount of the judgment or order unless given 

by an admitted surety insurer in which event it shall be for one and one-half times 

the amount of the judgment or order.’ (§ 917.1, subd. (b), italics added.) The 

statute provides no exception for lump sum judgments payable over time. . . . [¶] 

. . . It is undisputed that the present value of the damages (including costs and 

interest) set forth in the judgment is $14,893,277.56. That figure, which is the 

amount that would be due were the damages to be paid as a lump sum, is logically 

the amount of the money judgment for bonding under section 917.1. Requiring the 

lump sum judgment to be bonded is consistent with the purpose of section 917.1, 

in that it assures that the entire judgment will not become uncollectible if the 

judgment debtor becomes insolvent.” (Leung I, supra, 168 Cal.App.4th at pp. 211-

213, fn. omitted.)

We rejected Hospital’s claim that section 667.7, which authorizes the trial 

court to craft a periodic payment judgment, transformed the present value of the 

judgment into a judgment of lesser value for purposes of calculating the amount of 

the required undertaking. We explained: “Section 667.7 simply provides an 

alternative method, if future damages exceed $50,000, for ultimately paying those 

damages. In such a case, the statute requires the court, on a party’s request, to 

‘enter a judgment ordering that money damages or its equivalent for future 

damages of the judgment creditor be paid in whole or in part by periodic payments 

rather than by a lump-sum payment.’ (§ 667.7, subd. (a); see also id., subd. (f) 

[legislative intent, in part, was to ‘authorize the entry of judgments in malpractice 
8

actions against health care providers which provide for the payment of future 

damages through periodic payments rather than lump-sum payments’ (italics 

added)].) In entering the periodic payments judgment, the court must determine 

the details of how the lump sum present value of the damage award will be paid 

out over time. These details include setting ‘the dollar amount of the payments, 

the interval between payments, and the number of payments or the period of time 

over which payments shall be made.’ (§ 667.7, subd. (b)(1).) In setting such a 

payment schedule, however, the court is not altering the amount of the judgment.

It is simply determining how that judgment will be paid. As the California 

Supreme Court observed, ‘the court’s function . . . is similar to the authority long 

exercised by courts in the disbursement of the proceeds of a judgment under a 

number of well-established statutory schemes.’ (American Bank & Trust Co. v. 

Community Hospital (1984) 36 Cal.3d 359, 376, italics added (American Bank).)” 

(Leung I, supra, 168 Cal.App.4th at pp. 213-215, fn. omitted.)

Following our decision in Leung I, the appeal on the merits proceeded.

4. The Appeal on the Merits

In Leung v. Verdugo Hills Hosp. (2011), previously published at 193 

Cal.App.4th 971 [121 Cal.Rptr.3d 913] (Leung II), we reluctantly concluded that 

under the common law release rule, the plaintiff’s non-good faith settlement with 

codefendant Dr. Nishibayashi released Hospital from its liability for economic 

damages. As a result, we reversed that portion of the judgment awarding plaintiff 

economic damages against Hospital. We therefore did not decide several claims 

advanced by Hospital related to that portion of the damages award and we did not 

address plaintiff’s cross-appeal. As for Hospital’s liability for plaintiff’s noneconomic damages, we found substantial evidence supported the jury’s finding that 

Hospital’s negligence was a legal cause of plaintiff’s injuries. 
9

The California Supreme Court granted review of our opinion. In Leung v. 

Verdugo Hills Hospital (2012) 55 Cal.4th 291 (Leung III), it upheld our conclusion 

that the evidence was sufficient to establish that Hospital’s negligence was a legal 

cause of plaintiff’s injuries. (Id. at pp. 308-310.) However, Leung III abrogated 

the common law rule that a plaintiff’s settlement with, and release from liability of, 

one joint tortfeasor released all other joint tortfeasors from liability. (Id. at pp. 

300-308.) As a result, Hospital, contrary to our earlier conclusion, was jointly and 

severally liable for plaintiff’s economic damages. (Id. at p. 310.) The Supreme 

Court therefore remanded the case to us to address the contentions we had not 

reached in Leung II. (Ibid.)

In Leung v. Verdugo Hills Hosp. (Leung IV) (B204908, January 22, 2013), 

we addressed and rejected all of the parties’ claims of error and affirmed the 

judgment in full. 

We issued the remittitur on May 6, 2013. 

5. Subsequent Trial Court Proceedings Regarding Payment of 

 Post-Judgment Interest

By May 15, 2013, Hospital had paid plaintiff almost $5 million. It is 

undisputed that this sum included all that was due when the judgment was entered 

in November 2007 plus interest as well as each periodic payment that became due 

during the pendency of the appeal plus interest. Nonetheless, plaintiff ignored 

Hospital’s request to acknowledge satisfaction of all amounts due through May 1, 

2013. (§ 724.110.) As a result, Hospital sought an order from the trial court 

finding that it had satisfied payment of all amounts due under the judgment 

through May 1, 2013 and requiring plaintiff to furnish defendant with an 

acknowledgment of its partial satisfaction of the judgment. 
10

Plaintiff responded by filing a motion to enforce Hospital’s liability on its 

surety bond, claiming that Hospital still owed him approximately $7.5 million in 

post-judgment interest. His theory was that during the 5 & 1/2-year pendency of 

the appeal, the judgment was a lump sum present value $14.8 million judgment on 

which he was entitled to recover post-judgment interest at a rate of 10 percent per 

annum.

4

 He contended that because Leung I held that the lump sum present value 

of the judgment was to be used for purposes of calculating the appeal bond 

pursuant to section 917.1, the judgment had become a lump sum present value 

judgment for all purposes, including accrual of post-judgment interest, during the 

appeal. According to plaintiff, the judgment did not become a periodic payments 

judgment until we issued the remittitur in May 2013. 

The trial court granted Hospital’s motion and denied plaintiff’s motion. It 

found that Hospital had paid all amounts due from the entry of judgment through 

May 1, 2013. It rejected plaintiff’s claim that additional interest was due, 

explaining:

“The plaintiff has failed to establish it is law of the case that the 

‘judgment’ for the purpose of calculating interest while on appeal is 

the lump sum judgment. To the contrary, the Court of Appeal found 

the lump sum present value judgment was the ‘judgment’ only for the 

purpose of calculating the amount of the undertaking. (See Leung v. 

Verdugo Hills Hospital (2008) 168 Cal.App.4th 205, 209 [‘We hold 

that the lump sum present value of the judgment against the Hospital 

is the “amount of the judgment” for the purpose of calculating the 

undertaking required to stay the judgment under section 917.1.’].) 

The Hospital has elected to pay the judgment through a period 

payment plan and it is established that interest accrues as to periodic 

payments if and when they are not paid when due. (Deocampo v. Ahn

(2002) 101 Cal.App.4th 758, 775-776; see also Leung v. Verdugo 

Hospital, January 22, 2013 unpublished opinion, p. 27.) Therefore, 

 

4 A money judgment earns interest at the legal rate (10% per annum) from date of 

entry. (Cal. Const., art. XV, § 1; Pinecrest Productions, Inc. v. RKO Teleradio Pictures, 

Inc. (1970) 14 Cal.App.3d 6, 11.)
11

the court declines to find that the present value judgment is the 

appropriate judgment to be used in calculating the interest that 

accrued while enforcement of the judgment was stayed pending 

appeal. Instead, the court finds that the interest due is calculated on 

the periodic payments which were not made when due and that there 

is no further sum due to enforce against the surety bond.” 

This appeal by plaintiff follows. (§ 904.1, subd. (a)(2).) 

DISCUSSION

Plaintiff’s contention that he is entitled to additional interest on the judgment 

lacks merit. 

In this case, the trial court entered a periodic payments judgment. “[I]nterest 

will only accrue on each individual periodic payment as the payment becomes due.

[Citation.]” (Deocampo v. Ahn, supra, 101 Cal.App.4th at p. 776.) “The purpose 

of section 667.7 [periodic] payments is to provide compensation for losses that are 

to occur in the future. [Citation.] A plaintiff suffers no detriment if the future 

damages portion of the award is not paid when judgment is entered because the 

injury for which the payment is intended to compensate has not yet occurred. By 

definition, therefore, a periodic payment due on some future date is not unpaid 

until that date. ‘Interest is only awardable to compensate for a delay in payment 

and compensation for future needs involves no such delay.’ [Citation.]” 

(Schiernbeck v. Haight (1992) 7 Cal.App.4th 869, 874.)

Plaintiff does not dispute that the trial court entered a periodic payments 

judgment. By its terms, the judgment would become a present value judgment 

only if Hospital failed to post an appeal bond or purchase an annuity to fund the 

periodic payments. (See § 667.7, subd. (a) [“As a condition to authorizing periodic 

payments of future damages, the court shall require the judgment debtor who is not

adequately insured to post security adequate to assure full payment of such 
12

damages awarded by the judgment.”].) In this case, Hospital fulfilled both 

conditions imposed by the trial court. First, it posted an appeal bond, and then it

purchased an annuity. Accordingly, the judgment retained its character as a 

periodic payments judgment during the appeal.

Plaintiff also does not dispute that Hospital has paid him the periodic 

payments that came due during the pendency of the appeal plus interest as well as 

the other amounts (plus interest) that Hospital was obligated to pay upon entry of 

judgment.

In light of these circumstances and the authorities cited above, the trial 

court’s finding that plaintiff is not entitled to any additional payments of interest is 

unassailable. 

To avoid that result, plaintiff argues that during the pendency of the appeal, 

the periodic payments judgment became a lump sum present value judgment that 

earned interest at the rate of 10 percent a year. (See fn. 4, ante.) Plaintiff claims 

that we reached that conclusion in Leung I and that the conclusion has become law 

of the case. We disagree.

In Leung I, we addressed only one issue: the amount to be used “for the 

purpose of calculating the undertaking required to stay the judgment under section 

917.1.” (Leung I, supra, 168 Cal.App.4th at p. 209.) We began with the premise 

that the trial court had entered a periodic payments judgment. (Id. at p. 208.) We 

held that the lump sum present value of the judgment was the amount to be used to 

determine the appeal bond because that approach best protects a plaintiff in the 

event the defendant becomes insolvent during the pendency of the appeal. (Id. at 

p. 213.) Contrary to what plaintiff suggests, we never held that during the appeal, 

a present value judgment was in effect earning interest. In fact, we said nothing 

about the calculation of interest while the appeal was prosecuted. We simply held
13

that the trial court had correctly set the amount of the appeal bond as being one and 

a half times the judgment’s present value.

In reaching that conclusion, we rejected Hospital’s argument that the appeal 

bond should have been set in a lower amount because a periodic payments 

judgment had been entered. We explained that “section 667.7 does not transform 

the present value of this judgment into a judgment of lesser value for purposes of 

calculating the amount of the required undertaking under section 917.1 [because it] 

simply provides an alternative method . . . for ultimately paying those damages.” 

(Leung I, supra, 168 Cal.App.4th at p. 213.) Contrary to what plaintiff now 

argues, this passage does not mean that we held “that during the pendency of . . . 

Hospital’s appeal from the judgment, the judgment was lump sum in nature.” It 

meant only that entry of a periodic payments judgment did not change the sum 

upon which an appeal bond would be calculated.

Equally unavailing is plaintiff’s reliance upon language we used when we 

rejected Hospital’s claim that its purchase of the annuity meant that the present 

value of the judgment could not be the amount of the judgment for purposes of 

calculating the appeal bond. We explained: “The Hospital’s purchase of the 

annuity did not reduce the amount of the judgment pending appeal. That amount 

was and remains approximately $14.8 million in present value. The purchase of 

the annuity merely effectuated one of the alternative methods specified in the 

judgment by which Hospital could satisfy the judgment. . . . The Hospital’s 

premature purchase of the annuity [after the judgment had been stayed because it 

had filed a notice of appeal and obtained an appeal bond] was apparently a tactical 

choice – an attempt to present a change in circumstances so as to justify its 

renewed supersedeas petition. Regardless, by its purchase of the annuity the 

Hospital had no more authority to purportedly change the amount of the stayed 

judgment than did the trial court have the authority to purportedly change it by 
14

enforcing the security condition.” (Leung I, supra, 168 Cal.App.4th at p. 215.) 

This passage does not, as plaintiff argues, mean that we held that for purposes of 

calculating post-judgment interest, a present value judgment was in effect during 

the appeal. It simply meant that we rejected Hospital’s argument that its purchase 

of the annuity changed the calculus for computing an appeal bond.

In sum, we reject plaintiff’s contention that Leung I held “that it was the 

present value judgment that was the effective judgment during the pendency of the 

appeal.” It follows that the doctrine of law of case has no application to this 

appeal. (Sargon Enterprises, Inc. v. University of Southern California (2013) 215 

Cal.App.4th 1495, 1505 [the law of the case doctrine applies only to points of law 

expressly or implicitly determined in the prior appellate proceeding because they 

were essential to the court’s decision].) Therefore, the trial court properly held that 

plaintiff was not entitled to additional post-judgment interest.

DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. MANELLA, J.