Filed 2/9/17; part. pub. & mod. order 3/10/17 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

VALERIE YALE,

Plaintiff and Appellant,

v.

ROBERT R. BOWNE, II,

Defendant and Appellant.

 B260762

 (Los Angeles County

 Super. Ct. No. BC499388)

APPEALS from a judgment of the Superior Court of Los Angeles 

County. Maureen Duffy-Lewis, Judge. Affirmed with modifications.

Joshua R. Furman Law Corp., Joshua R. Furman for Plaintiff and 

Appellant.

Stephen R. Rykoff for Defendant and Appellant.

___________________________________________________
2

This case arises from a claim of attorney malpractice in the preparation 

of an estate plan. The jury found that defendant Robert R. Bowne, II 

(Bowne) had breached the standard of care in failing to properly implement 

Valerie Yale’s (Yale) express instruction to maintain her assets as her 

separate property in the trust document which Bowne prepared for her and 

her then husband, Bryan Knight (Knight).1

Each party finds error in elements of the jury’s monetary award, and in 

the trial court’s denial of Yale’s motion for prejudgment interest.2 We will 

conclude that the trial court correctly gave the comparative fault instruction 

requested by Bowne and that substantial evidence supports the jury’s award 

of $260,000 in damages (to be reduced under the jury’s comparative fault 

determination), but that the award for investment losses claimed by Yale was 

not supported by substantial evidence; nor is Yale entitled to prejudgment 

interest. 

FACTUAL AND PROCEDURAL HISTORY

We set forth those facts relevant to the issues presented by the parties. 

Also, we set out the facts in the light most favorable to the jury’s verdict. 

(Sacramento Sikh Society Bradshaw Temple v. Tatla (2013) 219 Cal.App.4th 

1224, 1227.)

Yale grew up in the family’s retail electronic business, eventually 

computerizing parts of it and expanding it, and, after her mother’s death and 

her father’s move out of state, and when technology passed it by, selling the 

 

1 Knight was not a party to this action, nor did he testify at trial. He and 

Yale were divorced prior to commencement of the litigation that is the subject 

of this appeal.

2 Bowne does not contest the jury’s finding that he was negligent.
3

business real property and assets, and retiring. Her first marriage ended in 

divorce in 1981 and involved a “terrible financial situation,” which she 

believed resulted in her first husband “[taking] half of everything I had.”

In 1982, after she retired, she decided to take up tennis, then meeting 

tennis pro Knight. They lived together from the year in which they met until 

1997, when then married, and through December 2011, when events 

described below led to their separation and divorce. Prior to their marriage, 

they entered into a prenuptial agreement which specified that Yale’s property 

was to remain her separate property. 

In 1994 she updated an earlier living trust to provide for Knight, 

including making him the beneficiary for his life of her asset upon her death, 

with the remainder to go on his death to specified individuals and charities. 

In 1999, in another update to her living trust, she made Knight successor 

trustee. Yale’s assets included her family’s home on Arrowhead Drive (the 

house) which she had purchased from her father with her own funds prior to 

his departure from California. 

In late 2009, Yale had “done a refi of the house.” The lender had 

required that Knight co-sign on the transaction; this resulted in the creation 

of a Home Equity Line of Credit (HELOC) against which either Yale or 

Knight could draw funds. When problems arose in early 2010 in completing 

the transaction, Knight referred Yale to Bowne, who helped resolve those 

issues, including returning the vesting on the house to her separate property 

from the community property vesting which the lender had required. 

On her March 30, 2010 visit to Bowne’s office, aware that Bowne 

considered himself to be an estate planning attorney, she began speaking 

with him about again updating her trust. She considered this to be a good 

idea as it had been over 10 years since the previous update. After meetings
4

and e-mails, Bowne prepared estate planning documents which Yale and 

Knight signed in Bowne’s office on May 21, 2010.

Later in 2010 Knight began having issues at work; he stopped sleeping 

and exhibited signs of extreme stress. One day in November 2010, he called 

Yale from work and asked her to pick him up. When she arrived to get him, 

he was standing at the curb. Yale testified that he “wasn’t in good shape.” 

She took him to a psychiatrist who diagnosed him with depression, 

prescribed medication, and gave him a note to advise his employer that he 

could not return to work until the doctor cleared him. Knight’s condition did 

not improve. On December 26, 2011, Knight attacked Yale inside their home, 

coming up behind her, choking her, and attempting to suffocate her. She 

managed to trigger an alarm company panic alarm. The police arrived, 

breaking down a door to gain entry. Once inside, they observed Knight 

strangling Yale, and took Knight into custody. Yale obtained a domestic 

violence restraining order the next day which included an order that Knight 

move out of the house.

Yale became concerned about both her personal and financial safety 

and went to attorney Charles Larson (Larson), whom she described as “a 

trust attorney,” three days later, on December 29, 2011. He reviewed her 

documents, told her that everything was community property and advised 

her that she should get all of her assets out of the family trust and he would 

prepare documents to do that. The next day she returned to sign a deed to 

transfer the house back to her name as her separate property. He also 

advised her that this did not solve the problem with the securities account 

she and Knight, as trustees, maintained with Vanguard and suggested that 

she contact Vanguard and ask them for help to transfer those assets to an 

account in her name (outside of the trust that Bowne had established).
5

During the same period of time, Knight called her from jail, asking her 

to put the house up as collateral so he could bail out. She refused to do so.

Yale next opened a new separate property account at Vanguard, and 

wrote checks on the existing Vanguard money market account to close it, 

depositing the funds in the new account. Because Vanguard had told her it 

would take seven to 10 days to transfer the brokerage account from its 

present status in the trust to any new account, which she wanted to do, and it 

would be difficult on the last day of the calendar year for her to find a 

financial institution with the authority to affix the required Medallion 

signature guarantee3 verifying her signature, Yale decided she could not wait 

and proceeded to sell all of the holdings in the brokerage account. She 

completed the sales within a few days and deposited the proceeds in a new 

Chase Bank account she had set up in her name. By mid-January she had 

transferred those proceeds to the new Vanguard accounts vested in her name 

only. In December 2011, before she began the transfer and sales of assets, 

the accounts consisted of a money market account, mutual funds, and E.T.F.S

(described in the record as a “basket” of stocks), all selected by her. 

Once all funds were in the new, separate property Vanguard accounts, 

Yale began to watch the stock market to see if there was a point at which she 

could “get back in when the market was low.” She testified that the 

opportunity came about June 3rd or 4th of 2012 when there was a five 

percent “dip.” She did not have a financial adviser because “Ever since I 

retired, I wanted to handle my own money because that was the last money 

 

3 A Medallion signature guarantee assures that the signature of the 

account holder will be recognized as genuine by the transfer agent. 

(SEC.gov/Medallion Signature Guarantees: Signature Guarantees: 

Preventing the Unauthorized Transfer of Securities 

http://www.sec.gov/answers/sigguar.htm> [as of Jan. 27, 2017].)
6

that I was going to be making and it was to see me though retirement. [¶]

And frankly, I just got really interested in learning about investing; so, I 

started to subscribe to newsletters and basically teaching [sic] myself about 

investments so I didn’t do something dumb, and I really enjoyed it. In fact, it 

was similar, you know, to managing money at my business, and it’s just, you 

know, something that I felt confident in doing.” She was fully invested by 

June 2012.

On February 15, 2012, Knight had Yale served with divorce papers. 

Shortly after he started the divorce proceedings, he withdrew $200,000 

against the HELOC. Yale hired attorney Bruce Abramson (Abramson) to 

represent her in the divorce. She testified that Abramson recommended that 

she settle the divorce proceedings with Knight on terms which included Yale 

paying him $260,000, an amount reached in the course of settlement 

negotiations. Abramson advised this would be reasonable to avoid potentially 

losing half of everything based on the claim that the estate plan Bowne had 

put in place transmuted all of her separate property to community property.

She accepted his advice and the matter settled in late 2012. The property 

settlement agreement included a provision that Knight would receive the 

$260,000 in exchange for releasing Yale from any obligation to pay any larger 

sum. Yale fulfilled that obligation by paying Knight $60,000 in cash and 

assuming the obligation to repay the $200,000 due to the lender under the 

HELOC. 

Yale’s complaint originally contained causes of action for negligence 

and for breach of fiduciary duty. She dismissed the latter claim prior to trial. 

The jury’s verdict included findings that both Bowne and Yale were 

negligent, allocating fault 90 percent to Bowne and 10 percent to Yale. The 

jury awarded damages of $260,000 for the amount Yale had paid to Knight to 
7

resolve the monetary aspects of their divorce; $57,170 in investment losses 

she incurred in her Vanguard accounts; and $39,000 to reimburse her for 

attorney fees she had paid to her divorce and other attorneys for 

representation in that action and which was attributable to errors made by 

Bowne in preparing the estate plan. The parties filed a timely appeal and 

cross-appeal. 

CONTENTIONS

Yale contends: (1) giving the jury an instruction on comparative fault 

by Yale was error; (2) no substantial evidence supports the jury’s reduction in 

the amount awarded for investment losses; and (3) she is entitled to

prejudgment interest. 

In addition to disputing these contentions, Bowne contends in his crossappeal that there was no substantial evidence to support (1) an award of any 

damages for Yale’s claimed investment loss; or (2) $200,000 of the $260,000 

awarded in connection with Yale’s divorce settlement.

I. The Comparative Fault Instruction

Among the instructions given to the jury were an instruction on

professional negligence and, over Yale’s objection, an instruction on 

comparative negligence which Bowne had requested.

4 Yale contends the trial 

court erred in giving the comparative fault instruction, arguing: (a) no 

California appellate court decision has discussed application of the principle 

 

4 The comparative fault instruction, given in a manner consistent with 

the Judicial Council’s Civil Jury Instruction No. 406, provided in part: 

“[Bowne] claims that [Yale]’s own negligence contributed to her harm. To 

succeed on this claim, [Bowne] must prove both of the following: 1. That 

[Yale] was negligent; and [¶] 2. That [Yale]’s negligence was a substantial 

factor in causing her harm.”
8

of comparative fault in attorney malpractice cases; (b) the instruction should 

not have been given because Yale did no more than rely on her lawyer’s 

advice, (c) “public policy considerations” require the instruction not be given 

when the client does not have the knowledge to understand the documents 

the lawyer has prepared, and (d) the instruction is inappropriate when “the 

client’s conduct does not interrupt the causal chain from the attorney’s 

negligence.” At oral argument counsel for Yale conceded that comparative 

fault instructions may be appropriate in attorney malpractice cases in certain 

circumstances. We will therefore focus our discussion on whether sufficient 

circumstances were presented in this case and will conclude that substantial 

evidence did warrant the giving of such an instruction.

A. Additional facts

Yale first sought Bowne’s legal advice in completing the transaction by 

which she and Knight obtained the HELOC on the house in 2009. The 

transaction included removing the house from her then trust, vesting title in 

herself alone, obtaining the new loan (the HELOC), and then, as a condition 

she had placed on the transaction, returning the title vesting to her as her 

separate property and as trustee of her trust. She did all of this because the 

new lender had required that Knight “be put on the loan” as a co-signer (Yale 

did not have sufficient income by herself to obtain it) and be equally obligated 

to make any repayments on sums borrowed. This required that title to the 

house be conveyed from Yale as trustee of her separate trust to her as her 

separate property, then to her and Knight as community property. Yale had 

secured the lender’s agreement that once the loan was recorded, title could be 

returned to her as her separate property. When Yale encountered problems 

in completing the deed recordation process, Knight suggested that she seek 

Bowne’s assistance. Knight knew Bowne through Bowne’s relationship with 
9

the bank at which Knight was then working. Yale obtained Bowne’s help in 

early March 2010, and during that month he completed the transfers as she 

had wanted.

Once Bowne had completed the title transfers, Yale decided to retain 

him to update her estate plan. In a series of meetings and via email, Yale 

explained to Bowne her desires, including that her property must remain her 

separate property. Bowne explained to her ways to achieve her objectives, 

which also included Knight succeeding her as trustee on her death or 

incapacity. On May 21, 2010, Yale and Knight went to Bowne’s office to hear 

his explanation of the documents he had prepared and to sign them as 

needed. She did not read all of the documents, but did read certain portions. 

The first document they signed was the new trust. She read paragraph 

1.2(B) of that document, “Property to Retain its Character,” which declared 

that both separate and community property were being placed in the new 

trust. She did not raise any issue concerning the meaning of this paragraph 

with Bowne. 

Yale also read the granting clauses of the three deeds she signed that 

day. She understood the execution of these deeds to be part of the process of 

transferring the house from her 1999 trust to this new trust. When she read 

the words “community property” in two of the deeds, she understood what 

that meant but she did not say anything to Bowne about the use of the term 

“community property” or raise any other question with him about the effect of 

these deeds. At the time the 2010 trust was created, her separate property 

was worth approximately $2 million. Shortly after completing the meeting at 

Bowne’s office, Yale changed the vesting on the investment account she had 

at Vanguard, revesting it as “Valerie A Yale & Bryan J Knight TR UA 05-21-

2010 The Valerie A Yale and Bryan J Knight Fam Tr.”
10

B. Applicable law

“A party is entitled upon request to correct, nonargumentative 

instructions on every theory of the case advanced by him [or her] which is 

supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 

Cal.4th 548, 572.) “The propriety of jury instructions is a question of law that 

we review de novo. [Citation.]” (Cristler v. Express Messenger Systems, Inc.

(2009) 171 Cal.App.4th 72, 82; Sander/Moses Productions, Inc. v. NBC 

Studios, Inc. (2006) 142 Cal.App.4th 1086, 1094; National Medical 

Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 426-

427.)

The principle of comparative fault was established in our Supreme 

Court’s decision in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 (Li). In 

rejecting the prior doctrine of contributory negligence, our Supreme Court 

explained that the former doctrine was “rooted in the long-standing principle 

that one should not recover from another for damages brought upon oneself 

[citations omitted.]” (Id. at p. 810.) The consequence of application of this 

doctrine (with some exceptions) was that the plaintiff recovered nothing when 

he or she was found to have contributed in any way to the harm created by 

the fault of the defendant. Notwithstanding the long history of the doctrine, 

the Li court concluded that this ‘“all-or-nothing”’ approach “is inequitable in 

its operation because it fails to distribute responsibility in proportion to fault” 

(Ibid., fn. omitted), and that the contributory negligence defense should be 

replaced “by a system under which liability for damage will be borne by those 

whose negligence caused it in direct proportion to their respective fault.” (Id. 

at p. 813, fn. omitted, emphasis added.) The fundamental purpose of the new 

principle of comparative fault was, in the court’s judgment “to assign 

responsibility and liability for damage in direct proportion to the amount of 
11

negligence of each of the parties. Therefore, in all actions for negligence 

resulting in injury to person or property, the contributory negligence of the 

person injured in person or property shall not bar recovery, but the damages 

awarded shall be diminished in proportion to the amount of negligence 

attributable to the person recovering.” (Id. at pp. 828-829.) The court 

adopted the new rule of comparative fault based on “considerations of 

fairness and public policy. [Citations omitted.]” (Id. at p. 829.)

In the present case, then, the question before us is whether there was 

substantial evidence to warrant the giving of a comparative fault instruction.

In considering the jury instruction challenged in this case, we begin 

with the recognition that legal malpractice actions in California are a subset 

of negligence actions in general and are governed by the rules of pleading and 

proof applicable to all negligence actions except to the extent “the Legislature 

has statutorily modified, restricted, or otherwise conditioned some aspect of 

an action for malpractice . . . . ” (Flowers v. Torrance Memorial Hospital 

Medical Center (1994) 8 Cal.4th 992, 998-999.)

Yale asserts that applying the principle of comparative fault “defies 

reason” because of “the great disparity in knowledge and experience between 

lawyers and [their] clients,” and in particular in this case. However, in this 

case, the facts support the giving of the challenged instruction. It is 

undisputed that Yale read the granting clauses of the deeds, saw the change 

from separate property to community property in two of the deeds, and was 

entirely conversant with the issue as she had just completed a transaction 

involving the identical property which included her insisting that the same 

parcel be restored from community property to separate property status at 

the conclusion of the HELOC transaction. Notwithstanding her knowledge 

and having just completed that transaction, she remained silent rather than 
12

ask the same lawyer who had represented her in completing that transaction 

why it was appropriate to sign the deeds now presented to her containing 

these particular granting clauses: Yale had the basic knowledge to pose a 

question to Bowne rather than remain quiet. It was for the jury to evaluate 

whether her failure to ask a question contributed to the situation for which 

she now sought damages.

Yale’s reliance on Theobald v. Byers (1961) 193 Cal.App.2d 147

(Theobald) and on Daley v. County of Butte (1964) 227 Cal.App.2d 380, is 

misplaced. In Theobald, a legal malpractice action (applying contributory 

negligence doctrine as it preceded Li), the plaintiff’s agent had no knowledge 

of the intricacies of the recording statute and of the financial 

consequence (loss of priority in payment under federal bankruptcy law) of 

failing to comply with them. (Theobald, at pp. 152-153.) In Daley, the issue 

was whether the attorney’s neglect in missing litigation deadlines should be 

imputed to the client. That court’s holding, that the client is not to be 

charged with such specialized knowledge of the arcane aspects of civil 

procedure, also has no application here.

In this case, the facts and circumstances recounted above, as well as 

her testimony that she had made an egregious error in her first marriage by 

allowing property to be transmuted to community property status, 

constituted sufficient evidence that the issue of comparative fault was 

properly placed before the jury.

One of Yale’s arguments reveals a misunderstanding of the way in 

which the issues of negligence liability and comparative fault relate to one 

another. Acknowledging that some system of comparative fault is to be 

allowed, Yale argues, “While there is no doubt that a comparative negligence 

defense can be asserted in a legal malpractice case as a general matter, the 
13

application of the defense cannot diminish the defendant lawyer’s duties.” It 

does not follow from this statement that comparative fault does not apply in 

legal malpractice cases, however. To so contend fails to distinguish between 

the two legal principles: the first, whether the lawyer was negligent, which

may be summarized as an inquiry concerning the lawyer’s professional duty 

and whether the lawyer has breached the standard of care to the damage of 

the plaintiff. The second asks a different question, whether the conduct of 

the client invokes application of principles of comparative fault to assist in 

allocating part of the responsibility, if any, for the claimed damages to the 

client. The two inquires operate in related, but somewhat different ways. 

The following quotation from Prosser on Torts explains the distinction: 

“Negligence as it is commonly understood is conduct which creates an undue 

risk of harm to others. Contributory negligence is conduct which involves an 

undue risk of harm to the actor himself. Negligence requires a duty, an 

obligation of conduct to another person. Contributory negligence involves no 

duty, unless we are to be so ingenious as to say that the plaintiff is under an 

obligation to protect the defendant against liability for the consequences of 

his own negligence.” (Prosser, Law of Torts [Torts (4th ed. 1971] § 65, p. 418; 

Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 735.)

Thus, if the finder of fact determines that the lawyer has breached his 

or her duty, causing damage to the client, it must then be determined if the 

client bears any share of responsibility for the harm caused, viz., whether 

comparative fault principles apply. That is why the comparative fault 

instruction in this case was appropriately given.

Cases from other jurisdictions. Yale constructs her argument in large 

part upon the authority of cases from other jurisdictions. Such a course is 

fraught with difficulty due to the variations that share the same legal 
14

“umbrella” term “comparative fault” as a descriptor. While 46 states have 

adopted the principle of “comparative negligence,” there are multiple versions

of this doctrine. (See, e.g., Article: Johnson, The Unlawful Conduct Defense 

in Legal Malpractice (2008-2009) 77 UMKC L.Rev. 43, 78.) Some states have 

adopted versions of comparative negligence by act of their state legislatures, 

others have done so by judicial decision. The variations in how the doctrine is

applied comprise a virtual rainbow of alternatives, emanating from three 

basic types, identified by Prosser and Keeton as “pure, modified, and slightgross.” (Prosser & Keeton, Torts (5th ed. 1984) Negligence, Defenses, § 67, 

p. 471.) In addition, the Uniform Comparative Fault Act (12 U.L.A. (Master 

Ed.), p. 121) has been adopted in some states. 

Yale does not discuss the source of the doctrine of comparative fault 

that is in use in each of the states from which she has selected cases to cite. 

Because of the variation in the several versions of this principle, we find 

giving weight to out-of-state court rulings lacks analytical value as well as

any persuasive force. This is certainly so when our Supreme Court made 

clear in Li the scope of application of the principle.

Yale cites one unpublished federal district court case, Bank Saderat 

Iran, N.Y. Agency v. Telegen Corp. (N.D. Cal. Oct 16, 1997, WL 685247)

[nonpub. opn.] and argues that it supports her claim, quoting the following 

language from this unreported case: “A client . . . does not have an 

independent obligation to double-check the work of her attorney. She has a 

right to rely on her attorney’s advice about legal matters because the 

attorney has superior expertise and knowledge of the law.” That court then 

cites Theobald and Day v. Rosenthal (1985) 170 Cal.App.3d 1125. We have 

explained ante why reliance on Theobald is inapposite. The issue both in

Saderat and in Day concerned allegations of breach of fiduciary duty; indeed, 
15

in Day the lawyer had become the client’s business manager and was found 

to have defrauded the client. There is no discussion of comparative fault in 

either case, making reliance on either inappropriate. Thus, we do not find 

this unreported case to be of any persuasive value.

Yale’s argument that there must be evidence of causation before a 

comparative negligence instruction is given is not disputed by Bowne. 

Bowne’s fundamental argument on the matter of causation is that Yale was 

aware of the problem with the deeds and had an obligation to bring her 

concern to Bowne’s attention—but did not do so, thus contributing to her 

damage, and validating the giving of the instruction in this case.

The requirement that there be evidence of the plaintiff’s own deficient 

conduct before a comparative fault instruction is appropriately given was 

discussed, and affirmed, by our Supreme Court in LeMons v. Regents of 

University of California (1978) 21 Cal.3d 869, 875. 

C. Public policy

Yale further contends that, in this case, there is no policy reason to 

hold Yale even partly responsible “for spotting and understanding the 

significance of her own lawyer’s error in 137 pages of documents that she 

hired the lawyer to produce. Under these circumstances, the comparative 

fault analysis does no less than impose a constructive suspension of the 

duties owed by the lawyer to the client.” [¶] . . . [¶] The only arguable basis 

for assigning any blame on Yale would be to suggest that she failed to 

‘supervise, review, or inquire as to the representation.’”

The facts of this case, however, reveal that Yale read the granting 

clauses of the deeds before she signed them, understood the meaning of the 

terms she read, and chose to remain silent. There were sufficient facts, given 

Yale’s very recent familiarity with the issue, for us to conclude that no public 
16

policy reason makes Yale’s own conduct immune from consideration by the 

jury. Moreover, Yale’s assertion is belied by our Supreme Court’s explanation 

in Li that public policy is one of the reasons for its adoption of the principle of 

comparative fault. (Li, supra, 13 Cal.3d at pp. 829-830.) 

D. Conclusion

We conclude that the court correctly instructed the jury on the 

principles of comparative fault.

We defer discussion of Yale’s other contentions as our resolution of 

certain of Bowne’s contentions affects them.

II. The Amount Awarded for Investment Losses

The jury’s verdict included an award of $57,100 to Yale for investment 

losses.5 Yale and Bowne have overlapping claims regarding the gross 

amount of this award. Bowne argues that there is no substantial evidence to 

support the award in any amount, while Yale argues that no substantial 

evidence supports the jury’s reduction from the larger amount ($247,737) 

which her expert witness testified was due.6 We will conclude that Bowne is 

correct.

A. Additional facts

Prior to meeting Knight, Yale had invested funds with Vanguard.7 She 

maintained her accounts with Vanguard after she and Knight were married. 

 

5 The jury also found Yale 10 percent at fault, requiring a corresponding 

reduction in this award.

6 The parties agree that we review the jury’s award for substantial 

evidence. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629.) 

7 There is little in the record concerning the nature of the services which 

Vanguard provides. We take judicial notice that it is a large investment 

company which holds investors’ funds and securities, some of which are 
17

In implementing the estate plan prepared by Bowne, Yale transferred title on 

her Vanguard accounts8 to herself and Knight as trustees of the new trust.

Immediately after her meeting with Larson at the end of December 2011, at 

which he advised her to remove assets she claimed as her separate property 

from joint ownership or vesting with Knight, and continuing in early January 

2012, Yale expeditiously sold all of the assets in the Vanguard accounts, 

completing the sales by mid-January 2012. She was concerned that Knight, 

who had the ability as co-trustee to access the accounts, and was still in jail 

and had asked her to post his bail, might sell assets held in the Vanguard

accounts to raise money for his bail, or for other purposes. She testified that 

her intent in closing the accounts was to terminate any potential access by 

Knight and return the assets to her sole control. After she completed the 

withdrawals, she opened new accounts at Vanguard, and, by mid-January 

2012, had redeposited all of the proceeds of the just-made sales in new 

Vanguard accounts solely in her name.9 The total amount redeposited was 

$654,040. No fees had been incurred in the process.10

 

proprietary funds. It also issues periodic statements to investors utilizing its 

services. (Evid. Code, § 452, subd. (g) [matters of common knowledge].) 

8 It is undisputed that Yale was the sole source of the assets placed with 

Vanguard. It is unclear whether Yale had a single, or multiple, accounts. We 

adopt the parties’ practice of using the plural when referring to Yale’s 

holdings at Vanguard.

9 The record does not clearly indicate, but it is a reasonable inference 

that the redeposited funds were placed in money market accounts pending 

reinvestment in securities, as is now discussed in the text.

10 There is no evidence in the record that Yale incurred either fees or any 

net capital gains on the sales she made, and only fragmentary evidence 

regarding tax basis issues that might have affected her decision. 
18

Yale then considered purchasing the same portfolio of securities as she 

had just sold, which she could do, also without any transaction costs, but 

decided not to do so. Instead, she waited for what she considered an 

appropriate time to reinvest, which occurred in June 2012. At that time, she

reinvested in a different mix of securities, but maintained the goal of having 

“a balanced portfolio of asset allocation.”

Yale’s expert in securities matters, Mason Dinehart III, (Dinehart) 

testified that Yale lost $247,737 between the time of the sales in December 

2010 and January 2011, and March 2014, the month prior to the trial. To 

obtain this number, he determined the market value of the securities held in 

the Vanguard accounts once Yale had completed the sales ($654,040) and the 

value of the identical investments (assuming that Yale would have continued 

to hold them throughout) in March 2014 ($901,777); then he subtracted the 

earlier value from that in 2014. The arithmetic difference of $247,737 was, 

according to Dinehart, the investment loss caused by Bowne.11

Dinehart testified that the stock market was at the same level in June 

2012 as it had been in January of that year. He also testified that, in June, 

Yale could have reinvested in all of the same securities she had sold in 

January and in the prior December. When he asked her about her decision 

not to repurchase the identical assets in January, she told him “Now that I’m 

in cash and have freedom to choose any stocks that I want—any mutual 

funds that I want or exchange traded funds—she took the best performers at 

that time, now that she had a fresh start. It was now time to reinvest, and 

she did and she picked the best ones at that time.” He also testified that 

when Yale reinvested the funds in June 2012, “she was very careful to 

 

11 The evidence also indicated that Yale incurred no transaction cost in

either selling or buying securities through Vanguard. The record indicates 

that an annual maintenance fee is charged instead. 
19

equalize the sectors.” When she did reinvest in June 2012, Yale told 

Dinehart that she had adopted a different investment strategy, repurchasing 

only two of the investment funds she had owned before. Dinehart stated

that, had she repurchased the identical assets in January 2012 as soon as she 

had the funds in her new, separate account, her cost basis “[would have been]

pretty close.”

Dinehart did not do a calculation of what Yale’s actual securities 

portfolio, which she purchased in June 2012, was worth in March 2014, nor 

did he calculate its investment gain. He was aware that Yale withdrew 

approximately $200,000 from her stock account by the end of 2012. This was 

one of the reasons he did not analyze this new portfolio. 

Lisa Roth, a registered broker-dealer called by the defense testified 

that, in January 2012, Yale could have repurchased the same securities as 

she had sold. Roth testified that Yale’s new investment strategy was 

successful, Yale did make money, and was able to withdraw $210,000.

B. Discussion

Dinehart’s testimony does not establish that Yale was damaged or that 

Bowne was a cause of her monetary “loss.” Rather, his testimony 

(corroborated by Roth’s) that Yale could have repurchased the same 

securities in January 2012 as she had just sold, and do so without any 

transaction cost—is evidence that she would have profited by the amount 

that Dinehart claimed were her damages had she done so. He also testified 

that she could have made the same purchases at the same prices in June of 

that year.

Yale testified that she decided to wait and read and study before she 

reinvested. Bowne points out that he did not cause the claimed investment 

loss; rather it was solely a result in Yale deciding not to repurchase the same 
20

securities in mid-January 2012, and he points out, when she re-entered the 

market, she did so under a different investment perspective. Thus, he 

argues, that there is no substantial evidence of loss in any event.

With respect to his first argument, Bowne relies on uncontroverted 

evidence that Yale alone made the decision to not repurchase in mid-January 

2012 the identical assets she had just sold even though, as we noted above, 

she could have done so without incurring any transaction costs. Instead, Yale 

decided on her own to wait until June of that year to fully reinvest, 

meanwhile reading and educating herself on investments. When she reentered the market that June, she testified without contradiction that she 

then implemented a somewhat different investment strategy. There is no 

dispute in the testimony: Yale herself determined to modify her investment 

philosophy and Yale chose not to reinvest in January, but instead wait until 

June 2012 to reinvest in full. 

As Bowne argues, “It is axiomatic that a defendant cannot be held 

liable in tort for an injury he or she did not cause.” In addition to being a 

“but-for cause,” the defendant’s conduct must be a substantial factor in 

bringing about the injury for which the plaintiff seeks damages.

(Brookhouser v. State of California (1992) 10 Cal.App.4th 1665, 1677.) Here, 

there is no substantial evidence that Bowne’s conduct played any part in 

Yale’s decision in January 2012 to change her investment philosophy and to 

wait until June 2012 to become fully reinvested in a “somewhat different”

securities portfolio. Nor is there any substantial evidence that Yale actually 

sustained any loss.12

 

12 Nor did Dinehart calculate Yale’s investment gain on the investments 

she did make in June 2012. The amount of that gain should have been 

available to compare to the “loss” which Dinehart did calculate, to determine 

whether there was in fact any net investment gain, or loss.
21

For these reasons, Yale’s additional contentions that the jury erred in 

reducing the amount of investment damages, and thus, that she is entitled to 

a greater amount of such damages, are moot. 

III. Prejudgment Interest

Yale argued in her briefs that she is entitled to prejudgment interest 

pursuant to statute (Civ. Code, § 3287, subd. (a)), and pursuant to case law,

on each element of her damages (on the divorce settlement, attorney fees 

incurred in connection with it, and on the amount awarded for her 

investment losses).13 At oral argument, she conceded that she would not be 

entitled to prejudgment interest on the amount of the investment loss as it 

was substantially reduced by the jury (and is now disallowed its entirety). 

We will conclude that this contention is without merit.

The matter of whether prejudgment interest is properly awarded is 

reviewed for abuse of discretion. (Bullis v. Security Pac. Nat. Bank (1978) 21 

Cal.3d 801, 814; Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co., 

supra, 47 Cal.App.4th at p. 492; Moreno v. Jessup Buena Vista Dairy (1975) 

50 Cal.App.3d 438, 448.) But it is a question of law whether any interest is 

allowable. (California Teachers Assn. v. San Diego Community College Dist.

(1981) 28 Cal.3d 692, 699.) (Because we determine that the principle 

amounts sought by Yale were not liquidated, and therefore prejudgment 

interest was not properly to be awarded, we do not address the additional 

issue of whether Civil Code section 3288 precludes any award of prejudgment 

interest in any event.)

 

13 As we have determined that Yale is not entitled to recover any amount 

for her claimed investment losses, she is not entitled to recover any 

prejudgment interest on this amount in any event. (Arntz Contracting Co. v. 

St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 492.)
22

Yale made a motion after trial seeking prejudgment interest, relying on 

Civil Code sections 3287, subdivision (b) and 3288, which was denied. On 

appeal, Yale argues that the award of prejudgment interest was mandatory, 

relying on Civil Code section 3287, subdivision (a) and language in North 

Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828 (Rogers). 

The statement in Rogers upon which Yale relies is a quotation from a 

practice book on civil trials which states that the award of interest is not 

discretionary “from the first day there exist[] both a breach and a liquidated

claim.” (Rogers, supra, 65 Cal.App.4th at p. 828, quoting from Wegner et al., 

Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 1997) ¶¶

pp. 17:185, 17:189, pp. 17-40.23, 17-40.24, emphasis added.)

Yale next argues that each element of her damages as to which she 

seeks prejudgment interest was liquidated, viz., fixed, in amount. Bowne 

does not agree; nor do we. 

Bowne addresses the difficulty with Yale’s argument in his argument

that the amount of damages was not certain until the jury made a 

determination as to the comparative fault of the parties; thus, the amount 

was uncertain until the verdict was rendered; and, accordingly, the award of 

any prejudgment interest would have been error. The trial judge found 

Bowne’s argument persuasive, relying on Wisper Corp. v. California 

Commerce Bank (1996) 49 Cal.App.4th 948, 960 (Wisper). As noted above, we 

review the trial judge’s determination under Civil Code section 3287 for 

abuse of discretion. (Bullis v. Security Pac. Nat. Bank, supra, 21 Cal.3d at 

p. 814; Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co., supra, 47 

Cal.App.4th at p. 492; Moreno v. Jessup Buena Vista Dairy, supra, 50 

Cal.App.3d at p. 448.)
23

The decision in Wisper relies in part on the reasoning in Stein v. 

Southern Cal. Edison Co. (1992) 7 Cal.App.4th 565, an opinion by Division 

Six of this court, which pointed out that “[w]here the amount of damages 

cannot be resolved except by account, verdict or judgment, [prejudgment 

interest is not appropriate].” (Id. at p. 573.) We find the holdings of these 

cases to be dispositive; there was no abuse of discretion in the trial judge’s 

denial of Yale’s motion for prejudgment interest.

IV. Damages Based On the Settlement of the Dissolution Action

Bowne contends there is no substantial evidence to support the award 

of $200,000 of the $260,000 for which Yale settled her dissolution of marriage 

action. Bowne bases this argument on the contention that the amount he 

contests was not the result of anything he did or did not do; instead it was the 

direct result of Knight’s draw down on the HELOC. In support of his claim,

Bowne emphasizes that (1) the HELOC was obtained with the mutual 

consent of the parties and Yale’s express agreement that any amounts drawn 

on the HELOC would be a lien against that property, and (2) the HELOC was 

obtained prior to the time Yale first met Bowne. 

A. Additional facts 

The HELOC was obtained in 2009 after the parties were married. The 

only involvement which Bowne had with respect to it was redrafting and 

recording the deed, returning the vesting of the house to Yale as her separate 

property from community property which the lender had required as a 

condition of making the loan.

Yale and Knight reached a settlement of their dissolution action which 

provided in part that she would pay him $260,000. She did this by 

withdrawing $60,000 from her Vanguard accounts and assuming the 

$200,000 in debt that Knight had incurred.
24

B. Discussion

The amount of debt which Yale assumed to meet the terms of her 

dissolution settlement with Knight is not a separate item of damages as 

Bowne contends. Instead, as Yale argues, her assumption of the debt 

represented by the balance due on the HELOC was a means for her to satisfy 

her monetary obligation to Knight under their settlement without further 

liquidating her Vanguard accounts or raising funds from other sources. It 

was thus a “proxy” for a cash payment of the balance of the settlement 

amount. Yale testified that she did not want to totally liquidate the 

Vanguard accounts to satisfy her obligations under the dissolution 

settlement. Instead, she took $60,000 from her Vanguard account and 

discharged the balance of her monetary obligation to Knight by taking over 

the HELOC debt which Knight had incurred. Bowne simply mischaracterizes 

the reason why Yale assumed the sole obligation to repay the $200,000 which 

Knight had borrowed. His contention lacks merit.

14

 

14 In his cross-appellant’s reply brief, Bowne claims that Yale has raised 

new arguments on appeal. Bowne does as well. However, new arguments 

raised for the first time in a reply brief are properly disregarded. (E.g., 

Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11; Reichardt v. 

Hoffman (1997) 52 Cal.App.4th 754, 763-765.) The same principle applies to 

the arguments newly advanced in the letter briefs the parties filed in 

response to our first letter of inquiry prior to argument. Therefore, we do not 

consider any such arguments.
25

DISPOSITION

The judgment is modified by striking the award of damages for $57,170

in investment losses. As modified, the judgment is affirmed. Each party is to 

bear its own costs on appeal.

________________________, J.*

 GOODMAN

We concur:

_________________________, Acting P.J.

 CHAVEZ

_________________________, J.

 HOFFSTADT

 

* Retired Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
Filed 3/10/17

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

VALERIE YALE,

Plaintiff and Appellant,

v.

ROBERT R. BOWNE, II,

Defendant and Appellant.

B260762

(Los Angeles County

Super. Ct. No. BC499388)

ORDER MODIFYING OPINION

AND CERTIFYING FOR PARTIAL 

PUBLICATION 

[NO CHANGE IN JUDGMENT]

THE COURT:

The opinion filed herein on February 9, 2017, was not certified for 

publication in the Official Reports. For good cause it now appears that 

the opinion, as modified, should be partially published in the Official 

Reports and it is so ordered.

It is further ordered that the opinion be modified as follows:

Page 1: 

Line 1, substitute the words “CERTIFIED FOR PARTIAL 

PUBLICATION*” for “NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS” and add at the bottom the page an asterisk footnote 

containing the following language: “Pursuant to California Rules of 

Court, rules 8.1105 and 8.1110, this opinion is ordered certified for 

publication with the exception of parts II, III and IV.”
2

Page 2: 

Delete the second full paragraph, beginning with the words “Each 

party,” and replace it with the following paragraph:

“Each party finds error in elements of the jury’s monetary award, 

and in the trial court’s denial of Yale’s motion for prejudgment interest.

[fn. 2] In the published portion of this opinion, we conclude that the 

trial court correctly gave the comparative fault instruction requested by 

Bowne. In the unpublished portions of this opinion we conclude that 

substantial evidence supports the jury’s award of $260,000 in damages 

(to be reduced under the jury’s comparative fault determination), but 

that the award of $57,170 for investment losses claimed by Yale was not 

supported by substantial evidence; nor is Yale entitled to prejudgment 

interest.”

The language of footnote 2 remains unchanged. Footnote 2 reads:

“

2 

 Bowne does not contest the jury’s finding that he was 

negligent.”

In the sentence beginning “Yale grew up,” the word “electronic” is 

deleted and the word “electronics” is inserted in its place.

Page 5: In the second to last line, the term “E.T.F.S” is deleted and the 

term “E.T.F.s” is inserted in its place.

Page 16: 

Delete the second full paragraph, which begins with the words:

“We defer discussion . . . .”

Page 19: In the final paragraph, beginning with the words “Yale 

testified,” delete the second sentence, beginning with the words “Bowne 

points out,” and replace this sentence with the following sentence: 

“Bowne points out that he did not cause the claimed investment loss; 
3

rather it was solely a result of Yale deciding not to repurchase the same 

securities in mid-January 2012; he also points out, when she re-entered 

the market, she did so under a different investment perspective.”

Page 25: 

Immediately following the Disposition, substitute the words 

“CERTIFIED FOR PARTIAL PUBLICATION” for “NOT TO BE 

PUBLISHED IN THE OFFICIAL REPORTS”

This modification makes no change in the judgment.

__________________________________________________________________

CHAVEZ, Acting P.J. HOFFSTADT, J. GOODMAN, J.†

† Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.