Filed 5/17/23 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

SHERRY A. GLASSMAN,

Plaintiff and Appellant,

v.

SAFECO INSURANCE COMPANY 

OF AMERICA,

Defendant and Respondent. 

 H049825

 (Santa Clara County Super. Ct. 

 No. 21CV383782) 

 ORDER MODIFYING OPINION

 NO CHANGE IN JUDGMENT

 

BY THE COURT:

It is ordered that the opinion filed herein on April 28, 2023, be modified 

as follows:

1. On page 2, line 8, the word “Company” is to be inserted between the 

words “Insurance” and “of” so the sentence reads:

In this case, appellant Sherry A. Glassman prevailed in a UIM 

arbitration against respondent Safeco Insurance Company of America.

2. On page 3, the first two sentences of the first full paragraph are 

deleted and replaced with the following two sentences:

After Glassman petitioned the trial court to confirm the arbitration 

award, she also sought prejudgment interest under section 3287, subdivision 

(a) (section 3287(a)) from the date of her CCP section 998 offer. This 

subdivision provides a right to prejudgment interest when a person “is 

entitled to recover damages certain, or capable of being made certain by 
calculation” (§ 3287(a)), and the right to recover is vested in the person on a 

particular day.”

There is no change in judgment.
_____________________________________

WILLIAMS, J.

_____________________________________

GROVER, ACTING P.J.

_____________________________________

LIE, J.

Glassman v. Safeco Insurance Company of America

H049825

 Judge of the Santa Clara County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California Constitution.
Filed 4/28/23 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

SHERRY A. GLASSMAN,

Plaintiff and Appellant,

v.

SAFECO INSURANCE COMPANY 

OF AMERICA,

Defendant and Respondent. 

 H049825

(Santa Clara County Super. Ct. 

 No. 21CV383782) 

Civil Code section 32911 addresses prejudgment interest in actions for 

personal injuries. It expressly incorporates the provisions of Code of Civil 

Procedure section 998 (CCP section 998), adding interest from the date of the 

offer as a recoverable item, claimed as a cost as opposed to an element of 

damages, if a plaintiff makes a CCP section 998 offer that the defendant does 

not accept, and the plaintiff ultimately obtains a more favorable judgment. 

(Steinfeld v. Foote-Goldman Proctologic Medical Group, Inc. (1997) 60 

Cal.App.4th 13, 18 (Steinfeld).) In Pilimai v. Farmers Insurance Exchange Co.

(2006) 39 Cal.4th 133 (Pilimai), the California Supreme Court held that 

1 Except as otherwise noted, further unspecified statutory references 

are to the Civil Code. 
2

uninsured motorist (UIM)2 proceedings are not actions for personal injury 

sounding in tort to which section 3291 applies and that such proceedings are 

instead in the nature of an action in contract arising out of a policy of 

insurance. Thus, section 3291, incorporating the cost-shifting mechanisms of 

CCP section 998 and applying them to prejudgment interest in personalinjury actions from the date of the offer, does not apply in a UIM proceeding. 

In this case, appellant Sherry A. Glassman prevailed in a UIM 

arbitration against respondent Safeco Insurance of America. The arbitration 

agreement was contained in a Safeco umbrella policy that provided excess 

UIM benefits, over and above those afforded by Glassman’s concurrent Safeco 

auto-liability policy. Glassman had sustained significant bystander 

emotional-distress damages during the policy period after witnessing her 

mother’s fatal injuries when an underinsured driver hit them both while they 

were walking together in a crosswalk. The arbitrator’s award, later confirmed 

by the superior court, determined that Glassman’s compensable damages 

resulting from the accident exceeded the required threshold to entitle her to 

the umbrella-policy excess UIM limits of $1 million. Before the arbitration 

2 UIM coverage provided in an auto-liability insurance policy and 

proceedings related thereto are addressed by Insurance Code sections

11580.2–11580.5, the Uninsured Motorist Act. They apply to both uninsured 

and underinsured motorist coverage in that Insurance Code section 11580.2, 

subdivision (p)(2) “requires auto insurance policies to provide underinsured 

motorist coverage for motorists whose liability insurance is less than the 

limits carried on the injured motorist’s plan.” (Storm v. Standard Fire Ins. 

Co. (2020) 52 Cal.App.5th 636, 643 (Storm); McIsaac v. Foremost Ins. Co. 

Grand Rapids, Michigan (2021) 64 Cal.App.5th 418, 420, fn. 1 (McIsaac); see 

also Ins. Code, § 11580.2, subd. (n) [“Underinsured motorist coverage shall be 

offered with limits equal to the limits of liability for the insured’s uninsured 

motorist limits in the underlying policy, and may be offered with limits in 

excess of the uninsured motorist coverage”].) 
3

hearing and award, Glassman had issued to Safeco a CCP section 998 offer in 

the amount of $999,999.99, one cent less than the policy limits. Safeco did not 

accept the offer, on which Glassman prevailed when the arbitrator later ruled 

she was entitled to the full $1 million umbrella-policy limits.

After Glassman petitioned the trial court to confirm the arbitration 

award, she also sought prejudgment interest under section 3287, subdivision 

(a) (§ 3287(a)) from the date of her CCP section 998 offer. This subdivision 

provides a right to prejudgment interest when a person “is entitled to recover 

damages certain, or capable of being made certain by calculation” (section

3287(a)), and the right to recover is vested in the person on a particular day. 

Unlike section 3291, which Glassman initially invoked, it contains no 

reference to CCP section 998. Thus, under section 3287(a), a liquidated 

damage claim triggers the entitlement to prejudgment interest not as a cost,

as it is treated under section 3291 if a plaintiff prevails on a CCP section 998 

offer, but as a form of additional compensatory damages. For a plaintiff to 

obtain prejudgment interest under section 3287(a), the defendant must have 

known or have been able to calculate from reasonably available information 

the amount of the plaintiff’s liquidated claim owed as of a particular day. 

(Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 150–151 (Collins); 

Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1789 (Cassinos).) 

The trial court here denied Glassman’s request for prejudgment 

interest under section 3287(a), concluding that the amount of her policylimits claim for excess UIM benefits was not certain or capable of being made 

certain and this uncertainty was not fixed by Glassman’s CCP section 998 

policy-limits offer. On appeal from the ensuing judgment confirming the 

arbitration award, she challenges only the court’s denial of prejudgment 

interest under section 3287(a). She urges, as she did below, that to promote
4

settlement and fair treatment of an insured by an insurer, an insured’s 

prevailing CCP section 998 offer in a UIM proceeding effectively liquidates

the insured’s claim in the amount and as of the date of the offer under section 

3287(a), mandating an award of prejudgment interest. We reject this 

contention, concluding that neither section 3287(a) nor CCP section 998, 

taken separately or together, so provide. 

Glassman further contends that her CCP section 998 offer in this case 

did, in fact, establish both the sum certain and the date certain of her 

underlying claim to the $1 million policy limits for purposes of awarding her 

prejudgment interest from the date of her offer under section 3287(a), and 

that Safeco knew or had reasonable access to sufficient information about her 

special damages alone at that point to make their recoverable amount from 

Safeco—the umbrella-policy limits—certain. But, as is clear from the record, 

when the trial court denied Glassman’s request for prejudgment interest 

under section 3287(a), lacking within the realm of its consideration was 

evidence of Safeco’s knowledge that Glassman’s economic losses or special 

damages resulting from the accident—her hard costs—in fact already 

exceeded the umbrella-policy limits when her CCP section 998 offer was 

made, or an evidentiary showing that this information was then reasonably 

available to Safeco. Finally, we reject as forfeited Glassman’s newly 

articulated and alternative claim to prejudgment interest under section 3287 

from the date of the arbitration award.

We accordingly affirm the judgment.
5

STATEMENT OF THE CASE 

I. The Accident3

“On January 22, 2015, . . . [Glassman] and her mother . . . were leaving 

a hospital” where [Glassman]’s father was staying after having suffered a 

heart attack. “[Glassman] and her mother . . . were crossing the street . . .

when an SUV . . . failed to yield and struck both of them.” “[Glassman] recalls 

she was hit first and then her mother[,] . . . [who] was dragged and pulled up 

into the SUV’s wheel well, causing her to suffer mortal injuries.” After hitting 

them, “the SUV did not stop so [Glassman] ran after it pounding on the 

vehicle to get the driver’s attention. [Glassman then] went to her mother[,]

who was face down on the ground” and bleeding. “Her [mother’s] leg was in a 

very bizarre position[,] which looked unnatural; eventually it was discovered 

her pelvis was crushed[,] so the leg was not connected to the rest of her body. 

[Glassman] held her mother’s hand and squeezed her mother’s fingers while 

her mother was whimpering. [Glassman] was eventually covered with her 

mother’s blood.” 

Once medical personnel arrived, Glassman was led away from the 

scene and she fainted. She “suffered relatively minor physical injury [from]

the accident, but her psychological damages were severe. She was 

transported to the same hospital as her mother, who passed away in the 

ambulance on the way.” After a few hours during which Glassman believed 

her mother was still being treated, “[she] was told of her mother’s fate and 

hospital personnel asked if [Glassman] would like to see her [mother’s body]. 

3 We derive the underlying facts mostly from the arbitrator’s final 

award dated May 22, 2021. Other facts are derived solely from the papers 

that were actually before the trial court when and as it considered and denied 

Glassman’s request for prejudgment interest. 
6

When [Glassman] indicated she would, she was brought into a room where 

her dead mother was shrouded in a blanket up to her neck” but with injuries 

to her head and neck still visible. Glassman stayed in the room for a few 

hours until she was convinced to leave. The next day, “[Glassman] was 

charged with the responsibility to inform her father that his wife of 62 years

was killed in an accident” and she “coordinated the final arrangements for 

her mother.” 

II. Glassman’s Injuries 

After the accident, and “[v]irtually every day since,” as the arbitrator

found, Glassman, who [had been] diagnosed with PTSD from the incident, 

“suffered from flashbacks, i.e., sudden, uncontrollable[,] and vivid memories 

of the accident. These flashbacks are triggered by reminders, including Ford 

SUV vehicles, crosswalks and intersections, sirens, traffic, being a passenger 

in a car, reading about or seeing car crashes in movies or videos, seeing 

pictures of her mother, and other such objects and events. Over time, these 

flashbacks have become somewhat less frequent[,] but they still occur almost 

every day and they remain extremely disturbing. At night, [Glassman] often 

suffers from nightmares related to her mother’s death. [She] is hyper-vigilant 

and experiences overwhelming anxiety. [She] also suffers from pre-existing 

depression, which has been exacerbated since her mother was killed.” 

As the arbitrator further found, “[w]hile the accident is probably the 

most devastating [experience Glassman] has suffered, she unfortunately has 

a complex physical and psychological history.” In her records and in 

testimony presented to the arbitrator, there was pre-accident evidence of 

family strife and related issues; multiple medical problems, procedures, and 

surgeries; three prior auto accidents causing injuries; and other traumatic

experiences. Even before the accident, Glassman had suffered from chronic 
7

pain, cognitive issues, sleeping problems, and mental-health conditions, 

including a prior PTSD diagnosis. She had been treated by numerous medical 

professionals with varied specialties for many things and had had periods of 

being away from work due to medical or mental-health issues, including on 

the day when the accident involving her mother happened. 

But after the accident and her mother’s death, according to one of her 

doctors, “[Glassman] was inconsolable,” “disoriented,” and “in the worst

shape of her life.” She sought psychiatric treatment and was hospitalized. 

She was suffering from “post-traumatic stress, suicidal ideations, depression, 

and hourly flashbacks about the accident” and “significant grief and ongoing 

chronic PTSD symptoms.” She was also experiencing “side effects from all of 

the medicines she [was] taking, including opioids for constant pain 

management. She tried to self-manage the medications[,] often with 

unfavorable results.” Family strife and related issues continued, along with 

new and acrimonious marital problems ultimately leading to her divorce. 

In the wake of the accident, she also experienced other stressors and 

trauma, including her companion dog having to be euthanized, witnessing a 

fatal police shooting, and seeing another person being hit by a truck. Still, 

according to the arbitrator, one of her doctors described her PTSD as “directly 

relating to her [having witnessed] her mother’s death”—a view echoed 

consistently in the evidence presented to the arbitrator from her other 

doctors—and as “one of the most resistant to treatment” that that doctor had 

ever seen. Another of Glassman’s doctors likewise opined that “while [her] life 

has had ups and downs with various stressors, the sole cause of her [postaccident] PTSD was witnessing the horrific death of her mother and not from 

the other stressors in her life, past or present.” Yet another of her doctors 

offered that “[Glassman] had the worst case [of PTSD] he had ever seen . . .
8

and that this was the direct result of seeing her mother’s death and was not 

due to other stressors in [her] life.” 

Even the neuropsychologist and PTSD expert retained by Safeco to 

“assess Ms. Glassman’s emotional condition in relation to the accident and 

loss of her mother,” and who had conducted an independent medical 

examination (IME) in early 2020, a year before the arbitration hearing, 

opined in her written report4 that Glassman’s “ ‘PTSD is directly related to 

the motor vehicle accident in which her mother perished and the pre-existing 

depressive disorder has been exacerbated by her inability to manage the 

PTSD symptoms. . . . In all probability, Ms. Glassman will need to continue 

the treatment, including medication, for the foreseeable future to help her 

maintain the limited lifestyle that she has presently.’ ” This Safeco-retained 

doctor was later called by both sides to testify at the arbitration hearing. 

III. The Arbitration and the Final Award 

As noted, the applicable Safeco umbrella policy provided $1 million in 

excess UIM benefits. It incorporated or referenced various terms of 

Glassman’s corresponding Safeco auto policy, including its UIM coverage and 

arbitration provisions.5 The auto policy’s UIM coverage mirrored the scope of 

coverage required by Insurance Code section 11580.2, under which Safeco 

4 The report itself is not part of the properly delineated record. 

5 Insurance Code section 11580.2, addressing UIM coverage 

requirements, excludes from its application auto-liability coverage “provided 

only on an excess or umbrella basis.” (Ins. Code, § 11580.2, subd. (a)(1).) But 

the Safeco umbrella policy at issue expressly incorporated the relevant UIM 

provisions of Glassman’s related Safeco auto policy, which, from the portions 

that are in the record, reflected the requirements of Insurance Code 

section 11580.2. 
9

agreed to pay, as relevant here, “damages which an insured is legally entitled 

to recover from the owner or operator of an uninsured motor vehicle because 

of . . . [b]odily injury sustained by that insured and caused by an accident.” 

The umbrella policy, based on certain express limits, conditions, and 

exclusions, committed Safeco to pay excess UIM benefits in the form of 

“damages resulting from bodily injury which are in excess” of the required 

minimum limits provided under her underlying auto policy, plus the limit of 

“any other insurance collectible by the Insured which an Insured is legally 

entitled to recover from the owner or operator of an uninsured/underinsured 

motor vehicle,” and “in accordance with the terms and conditions” of the 

underlying auto policy at the time of the loss. 

For her damages from the accident, Glassman received $255,000 under 

her Safeco auto policy, which included $5,000 in medical-expense 

reimbursement. And she received another $250,000 from the underinsured 

driver’s auto policy. After making a claim under the umbrella policy for 

excess UIM benefits and Safeco having denied it, Glassman initiated 

arbitration proceedings under the policy’s arbitration agreement, 

incorporated from the underlying auto policy. Under that provision, if the 

parties “[did] not agree . . . [w]hether th[e] insured is legally entitled to 

recover damages; or . . . [a]s to the amount of damages which are recoverable 

by th[e] insured[] from the owner or operator of an uninsured motor vehicle 

then the matter will be settled by arbitration.” Further, “[a]ny decision of the 

arbitrator will be binding as to . . . [w]hether the Insured is legally entitled to 

recover damages; and . . . [t]he amount of damages.” 

The parties engaged in pre-hearing discovery, including Glassman’s 

submission to the IME conducted by Safeco’s retained neuropsychologist and 

PTSD expert, whose written report dated January 9, 2020 (not in the record), 
10

was favorable to Glassman both in terms of the extent of her injuries and 

their cause from having witnessed the accident that killed her mother. On 

February 12, 2020, Glassman issued her CCP section 998 offer to Safeco for 

$999,999.99, one cent less than the umbrella-policy limits. Safeco did not 

accept the offer. The arbitration hearing, complete with witness testimony,

occurred nearly a year later, on January 26 and 27, 2021. 

Glassman contended in the arbitration hearing that she was entitled to 

an award of $4 million, representing the “cost of all her medical care, her 

wage loss, the cost of her future medical care, and damages for past and 

future emotional distress.” She requested an award of this amount 

representing her compensatory damages against the underinsured driver 

even though the limits of the Safeco umbrella policy at issue were $1 million, 

citing Insurance Code section 11580.2, subdivision (f), which requires the 

UIM arbitrator to determine only (1) whether the insured is entitled to 

recover against the uninsured motorist and (2) if so, the amount of the 

damages. As noted, by the time of the arbitration, Glassman had already 

settled with the underinsured driver’s insurer for $250,000, and she had 

received $250,000 in UIM coverage available through her own Safeco auto 

policy, plus $5,000 for her medical expenses. Under the terms of the umbrella 

policy, to recover the $1 million policy limits, Glassman’s recoverable 

damages against the underinsured driver had to reach or exceed $1,505,000, 

composed of the limits plus the $505,000 she had already received. 

Safeco, for its part, contended in the arbitration hearing that Glassman 

had already been adequately compensated for her damages proximately 

resulting from the accident by her prior receipt of the $505,000, and therefore 

no excess UIM benefits under the umbrella policy were awardable. It argued 

that while Glassman’s bystander-distress damages caused by her having 
11

contemporaneously witnessed the SUV hit and injure her mother were 

recoverable, her additional damages sustained from witnessing the 

immediate aftermath of the impact as her mother was caught in the wheel 

well of the SUV and then dropped to the street, from comforting her ailing 

and injured mother in the street, from later learning of her mother’s death, 

and then from seeing her mother’s dead body in the hospital, along with her 

subsequent grief and emotional distress, were not. Its argument rested on its 

asserted legal theory that Glassman’s emotional and psychological distress 

from the entire experience could be parsed into separate and distinct “slice[s] 

in time,” with only damages from her contemporaneous observation of the 

immediate impact to her mother as recoverable. But Safeco also disputed 

causation, arguing that Glassman’s emotionally distressed condition after the 

accident could not solely be attributed to it and was instead or also caused by 

the many other documented traumas and medical issues in her life, both 

before and after the accident.6

In her final award dated May 22, 2021,

7 the arbitrator largely rejected 

Safeco’s attempts to limit Glassman’s recoverable damages resulting from the 

6 Safeco also raises issues about the proper measure of Glassman’s 

medical costs as damages in view of Howell v. Hamilton Meats & Provisions, 

Inc. (2011) 52 Cal.4th 541, 555–556 (Howell), which arguably would have 

limited the amount of her compensable damages for medical expenses to the 

“lesser of (a) the amount paid or incurred for medical services, and (b) the 

reasonable value of the services.” (Id. at p. 556.) Safeco contends that because 

of Howell, its possession of Glassman’s medical bills alone (part of 

Glassman’s motion to augment, discussed post) would not have yielded 

certainty of her special damages. The arbitrator did not specifically address 

this Howell issue in her final award, except to note that many of Glassman’s 

medical expenses were covered by insurance. 

7 The arbitrator’s final award was preceded by an interim award in 

Glassman’s favor dated April 12, 2021, which was silent as to costs.

Glassman then requested an award of costs from the arbitrator. 
12

accident, whether on the legal basis of its “slice in time” argument capping 

her damages at those caused only by her contemporaneous observation of her 

mother’s injuries or its factual claim that the full extent of her injuries, and 

hence her damages, was caused not by the accident but other traumatic 

events in her life, whether before or after. But the arbitrator nonetheless did 

not include in the calculation of Glassman’s damages to meet the threshold 

for her recovery of the umbrella-policy limits “any damages [incurred] as a 

result of [Glassman’s] observations after she fainted at the scene. 

Observations of her mother in the hospital were not considered in 

determining damages.” 

The arbitrator ultimately concluded in the final award that Glassman’s

compensable (but unquantified) “monetary expenses” were still “well over 

$1 million, a large part of which [we]re medical expenses covered by 

insurance.” Her lost wages for the 21-month period after the accident and 

until her later return to work were found by the arbitrator to have totaled 

$179,000. And the present value of her “future psychotherapy treatment will 

be about $195,129.” Thus, according to the arbitrator, after roughly totaling 

Glassman’s special damages alone at somewhere “well over” $1,374,129, the 

total of her proven and recoverable “economic and emotional distress” 

damages resulting from the accident exceeded $1,505,000. 

As noted, this was the threshold amount for Glassman to receive an 

award of $1 million—the umbrella-policy limits—after factoring in the 

$250,000 she had already received from the underinsured driver plus the 

$255,000 from her own Safeco auto policy. 

The arbitrator accordingly determined that because Glassman’s proven 

and compensable damages met the $1,505,000 floor, she was entitled to the 

full $1 million policy limits. The arbitrator declined to determine the exact 
13

amount of Glassman’s damages recoverable against the UIM driver, as 

Glassman had requested. For this, the arbitrator cited Cothron v. 

Interinsurance Exchange (1980) 103 Cal.App.3d 853, 858–859 (Cothron), and 

the principle that no more than the policy limits can be awarded in a UIM 

arbitration in any event (id. at p. 860). (See also State Farm Mut. Auto Ins. 

Co. v. Superior Court (2004) 123 Cal.App.4th 1424, 1431 (State Farm).)

The arbitrator ultimately did not award costs as also requested by 

Glassman, including those made recoverable by her prevailing CCP section 

998 offer, determining that this decision was beyond the scope of the arbitral

authority, set by contract in the form of the umbrella policy of insurance. The 

arbitrator thus denied Glassman’s costs request without prejudice to the 

superior court deciding this issue in connection with a petition to confirm the 

final award. (See Storm, supra, v. 52 Cal.App.5th at pp. 646–648 [where UIM 

policy defines scope of arbitration agreement in parallel with Ins. Code, 

§ 11580.2, it is for court, not arbitrator to award costs incurred during 

arbitration proceedings].)

IV. Proceedings in the Superior Court

After the arbitrator issued her final award in Glassman’s favor, on 

June 7, 2021, Glassman filed a petition in the superior court to confirm it 

under Code of Civil Procedure section 1285, along with her declaration and a 

notice of hearing, which the clerk set for August 31, 2021.

8 The petition’s 

prayer sought entry of judgment in conformity with the award and “costs as a 

matter of right pursuant to [Code of Civil Procedure] Sections 1032(b), 

8 Safeco had previously filed its own separate petition to confirm the 

interim arbitration award (Santa Clara Superior Court case no. 

21CV382874). That proceeding is not relevant to the issues on appeal.
14

1293.2, 3291, and 998.”9 The prayer also sought “recoverable costs and 

interest” and “such other and further relief as the Court may deem proper.”

Section 3291, as noted, provides for prejudgment interest as a recoverable 

cost when a plaintiff prevails on a CCP section 998 offer in personal-injury 

actions. Glassman’s petition did not expressly seek prejudgment interest 

under section 3287, and her supporting two-page declaration filed with the 

petition contained no facts addressing this issue, meaning facts supportive of 

the conclusion that Glassman’s damages were certain or capable of being 

made certain as of a particular day.

Safeco initially filed a demurrer to Glassman’s petition and a motion to 

strike the portions of it that included the word “interest” and allegations 

claiming a right to prejudgment interest under section 3291, relying on

Pilimai. Safeco requested that these motions challenging the pleading be 

heard concurrently with Glassman’s petition. But these motions were 

ultimately set by the clerk to be heard on October 26, 2021, some two months 

after the scheduled hearing on Glassman’s petition to confirm the award. In 

the required meet-and-confer process leading up to those motion filings, on 

July 7, 2021, Glassman conveyed to Safeco that she was no longer pursuing 

prejudgment interest under section 3291—recognizing Pilimai’s holding—but 

instead under section 3287.10 And her points and authorities in opposition to 

9 The citation to section 3291 was apparently intended to be to the Civil 

Code, not the Code of Civil Procedure. 

10 Subdivision (b) of section 3287 applies to unliquidated claims and it is 

discretionary. (Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 

375–376 (Espejo) [court in its discretion may award prejudgment interest 

under section 3287, subd. (b) for equitable and unliquidated claims such as 

restitution to make injured party whole].) Although Glassman alternatively 

sought prejudgment interest under this subdivision in the trial court, she 

appears to have abandoned this claim on appeal.
15

Safeco’s demurrer and motion to strike, set for hearing in October, made this 

claim. 

On August 16, 2021, Glassman filed an amended declaration in support 

of her petition to confirm the arbitration award, still set for hearing on 

August 31st. The amended declaration briefly included the new fact of her 

February 12, 2020 CCP section 998 offer. 

Attached to the amended declaration was a memorandum of points and 

authorities in support of her petition, which Glassman had previously 

omitted with her papers, and which was untimely for a hearing noticed for 

August 31st. (Code Civ. Proc., § 1005.) There, Glassman for the first time 

expressly argued she was entitled to an award of prejudgment interest under 

section 3287(a). She argued that a prevailing CCP section 998 offer made by 

an insured in the context of a UIM proceeding liquidates the claim under 

section 3287(a) when the offer expires without acceptance, to mandate an 

award of prejudgment interest as of that date. She also argued that when 

Safeco’s retained expert who had conducted the IME issued the written 

report favorable to Glassman in January 2020, her “economic damages, 

including medical expenses, exceeded [the umbrella-]policy limits.” She 

offered no evidence to support this stated fact, including the report, or to 

support that Safeco knew this fact, or had reasonable access to information 

from which it should have known it. 

In addition to its demurrer and motion to strike, on August 18, 2021, 

Safeco filed opposition to Glassman’s petition, in which it requested a 

continuance of the August 31st hearing date, given the later date set for its 

motions challenging Glassman’s pleading. Safeco also objected to and moved 

to strike her belatedly filed memorandum of points and authorities in support 

of her petition. And Safeco specifically opposed Glassman’s request for 
16

prejudgment interest under section 3287, contending that her petition had 

not made or preserved this claim.11

On August 23, 2021, Safeco filed a supplemental brief in opposition to 

Glassman’s newly asserted right to prejudgment interest specifically under 

section 3287. This brief reached the merits of Glassman’s request, and argued 

that prejudgment interest was not available under section 3287 in a UIM 

proceeding as a matter of law, no “damages” as contemplated in section 

3287(a) being awardable. Safeco further urged that Glassman’s damages, 

especially her general damages for emotional distress, were not in any event 

certain or capable of being made certain before the final arbitration award 

and that Glassman’s CCP section 998 offer did not change or affect the prior 

state of uncertainty. 

Glassman’s reply in support of her petition to confirm the arbitration 

award, filed on August 25, 2021, offered her supplemental declaration. There, 

she pointed out that she had previously asserted to Safeco in July 2021 her 

right to prejudgment interest under section 3287 and had also filed her brief 

in opposition to Safeco’s motion to strike raising “detailed arguments” on this 

issue. She further averred that she “would have filed a separate motion for 

prejudgment interest under . . . section 3287” had “Safeco not filed its motion 

to strike [the] request for interest” from her petition to confirm the 

arbitration award. She also attached her opposition to Safeco’s motion to 

11 Safeco wisely abandons this waiver/forfeiture claim on appeal. “A 

general prayer in the complaint is adequate to support an award of 

prejudgment interest. ‘No specific request for interest need be included in the 

complaint; a prayer seeking “such other and further relief as may be proper” 

is sufficient for the court to invoke its power to award prejudgment interest.’ ” 

(North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 829 

(North Oakland).) 
17

strike, which she apparently thought would be heard concurrently with her 

petition on August 31st. 

Glassman’s reply points and authorities in support of her petition 

maintained her legal argument that her CCP section 998 offer had effectively 

liquidated her claim for purposes of applying section 3287(a) and that her 

having prevailed on her offer, without more, entitled her to prejudgment 

interest under section 3287(a) as a matter of law as of March 13, 2020, when 

the offer expired. She argued in a footnote, with no supporting evidence, that 

her damages were in fact ascertainable in January 2020, “when Safeco’s own 

expert . . . rendered her report based on the [IME] of [Glassman], and all the 

discovery [Glassman] produced in response to Safeco’s demands. . . . At this 

point in time, [Glassman’s] economic damages, including medical expenses, 

exceeded policy limits ($1,000,000). Thus, in the alternative, [Glassman’s] 

damages were a sum certain on January 18, 2020[,] for purposes of . . .

section 3287. The evidence was not disputed.” 

At the hearing on Glassman’s petition on August 31, 2021, the court 

continued the matter to September 21, 2021, and ordered no further briefing.

The court apparently had not received Safeco’s supplemental opposition, 

which addressed Glassman’s claim for prejudgment interest under section 

3287(a) and which had been previously filed or submitted to the clerk for 

filing, and ordered Safeco to refile that brief, which it did that day. 

Before the continued hearing date, the court issued a tentative ruling 

confirming the arbitrator’s final award in Glassman’s favor but denying 

prejudgment interest under section 3287. Glassman challenged this tentative 

denial and argued at the hearing that CCP section 998 “is not just a costshifting statute; it also acts independently to liquidate the claim, just as it 

does for purposes of personal injury claims under [s]ection 3291.” She further 
18

argued that “[s]ince Pilimai precludes prejudgment interest under [s]ection 

3291 in [UIM] proceedings because such a proceeding is an action based on 

contract, then [s]ection 3287, along with [CCP s]ection 998, is a natural and 

appropriate mechanism to put Safeco on equal footing with other litigants.” 

At the hearing, Glassman also corrected the date from which she 

sought mandatory prejudgment interest under section 3287(a), advancing 

that date to February 12, 2020, the date of her CCP section 998 offer, from 

the March 2020 date by which Safeco had not timely accepted it. She further

clarified that prejudgment interest could stop accruing as of September 13, 

2021, when she unconditionally received from Safeco its tender of the full $1 

million umbrella-policy limits, for a total of 580 days. 

At the end of the hearing, the court orally announced it was adopting 

its tentative ruling granting Glassman’s petition but denying prejudgment 

interest, which it did in a written order filed that day. The court reasoned 

that section 3287(a) did not apply here, concluding that Glassman’s “damages 

at issue in the arbitration proceeding . . . were not certain or capable of being 

made certain as there was a significant general damage claim that was 

disputed by the parties. While the Court understands the cost-shifting 

purposes of CCP 998, the fact that [Glassman] prevailed above her 998 offer 

at arbitration does not equate to recovery of prejudgment interest pursuant 

to [s]ection 3287(a).” In its order, the court also vacated as moot the later 

hearings set for Safeco’s demurrer to Glassman’s petition and motion to 

strike allegations concerning prejudgment interest. 

The parties later litigated the issue of costs, some which had shifted on 

account of Glassman’s CCP section 998 offer, resulting in a $67,046.20 award 

in Glassman’s favor. On January 14, 2022, the court entered a written order
19

and judgment, confirming the final arbitration award and making its ruling 

and award as to costs. 

Glassman timely appealed, limiting her appeal “to the portion of the 

[j]udgment denying [her] request for prejudgment interest.” 

 DISCUSSION

I. The Scope of the Appellate Record 

The day after Glassman filed her notice of appeal, and before she 

designated the appellate record under rule 8.122 of the California Rules of 

Court,12 Safeco timely filed its Respondent’s Notice Electing to Use an 

Appendix under rule 8.124(a)(1)(B). Glassman later filed her own designation 

of the record, electing a clerk’s transcript and listing the documents she 

wished to be included, as provided in rule 8.122(a)(1). 

The superior court clerk then erroneously proceeded to prepare a 

clerk’s transcript for this appeal despite Safeco having timely elected to use 

an appendix, which should have controlled the record under rule 

8.124(a)(1)(B). This rule provides in relevant part that “[u]nless the superior 

court orders otherwise on a motion served and filed within 10 days after the 

notice of election is served, this rule governs if: . . . (B) [t]he respondent 

serves and files a notice in the superior court electing to use an appendix 

under this rule within 10 days after the notice of appeal is filed and no 

waiver of the fee for a clerk’s transcript is granted to the appellant.” Safeco 

complied with this rule, the superior court did not rule otherwise, and there 

was no fee waiver. Because Safeco proceeded this way, it attempted to file its

appendix with its respondent’s brief. But the clerk of this court would not 

12 Further undesignated citations to rules are to the California Rules of 

Court. 
20

accept it, a clerk’s transcript from the superior court already having been 

filed. 

Safeco then filed a motion to augment the record in this court under 

rule 8.155(a), seeking to add to the record what it had sought to include in its 

appendix. This consisted of the following three documents: 1) full 

Acknowledgment of Satisfaction of Judgment executed by Glassman on 

February 11, 2022; 2) Respondent’s Notice Electing to Use an Appendix filed 

in the superior court on February 15, 2022; and 3) the Superior Court docket 

sheet listing filings in the case in that court. The ruling on this motion to 

augment the record was deferred by order dated August 24, 2022, for 

consideration with the merits of the appeal. Over Glassman’s opposition, we 

grant Safeco’s motion to augment the record to include these three 

documents, attached to the motion, as Safeco timely filed its election to 

proceed by appendix, and under rule 8.124(a)(1)(B), that should have 

controlled, and the appeal should have proceeded by appendix instead of with 

a clerk’s transcript as later designated by Glassman. 

Glassman also filed a motion to augment the record, which this court 

by order of June 24, 2022, deemed a request for judicial notice and likewise 

deferred for consideration with the appeal. The materials that are the subject 

of this motion consist of Glassman’s opposition to Safeco’s motion to tax costs 

in the trial court and her supporting declaration, both filed on December 21, 

2021, three months after the trial court had already ruled on Glassman’s 

request for prejudgment interest.13 Thus, these documents were not before or 

considered by the trial court when it made the ruling that is the subject of the 

13 The documents include some of Glassman’s earlier discovery 

responses and portions of the written summary report from the January 2020 

IME of Glassman conducted by Safeco’s retained expert. 
21

appeal and were not taken into account for the point now urged—that 

Glassman’s damages were certain or capable of being made certain as of the 

date of her CCP section 998 offer in February 2020. In support of the motion, 

Glassman avers that when she “designated the record in this case, [she] did 

not anticipate that the pleadings concerning” Safeco’s later motion to tax 

costs “were relevant to the issue of prejudgment interest.” She urges that the 

materials contain “information supporting [her] appeal on the issue of 

prejudgment interest as they show the information Safeco had in its 

possession at the time [it was] served with” her CCP section 998 offer. 

Safeco opposes the motion to add these materials to the appellate 

record or have them considered on review on the ground they were not before 

the trial court when it made the ruling now on appeal, and it seeks judicial 

notice of five facts in support of its opposition, the ruling on which was also 

deferred for consideration with the appeal.

14

We take judicial notice of the five facts for the limited purpose of ruling 

on Glassman’s motion to augment, deemed one for judicial notice, and we 

deny the motion. Elemental to appellate practice and procedure is that a

reviewing court will ordinarily not consider on appeal matters that were not 

presented to the trial court when it made the challenged ruling, including 

matters of which an appellate court may take judicial notice under Evidence 

Code section 459. (Vons Cos., Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 

14 The facts, which seem undisputed, in essence are: 1) the only issue on 

appeal is the denial of prejudgment interest; 2) the trial court made this 

ruling on September 21, 2021; 3) Glassman never sought reconsideration of 

the ruling in the trial court; 4) she filed in the trial court the documents she 

now seeks to include in the appellate record on December 21, 2021, in 

connection with Safeco’s motion to strike or tax her claimed costs; and 5) the 

documents were not before the court when it ruled on Glassman’s request for 

prejudgment interest. 
22

434, 444, fn. 3; [appellate court will not generally take judicial notice of 

matters that were not before the trial court absent exceptional 

circumstances]; Brosterhous v. State Bar of California (1995) 12 Cal.4th 315, 

325 [appellate courts may properly decline to take judicial notice of a matter 

that should have been but was not first presented to trial court for 

consideration in the first instance]; DeYoung v. Del Mar Thoroughbred Club

(1984) 159 Cal.App.3d 858, 863 [appellate courts should not generally 

judicially notice document that although on file in trial court was not 

presented to and considered by that court in first instance].) 

“ ‘It has long been the general rule and understanding that “an appeal 

reviews the correctness of [an order] as of the time of its rendition, upon a 

record of matters which were before the trial court for its consideration” ’ 

[Citation.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1239.) Documents not 

presented in the trial proceeding generally cannot be included as part of the 

record on appeal and must be disregarded on appeal as beyond the scope of 

review. (Doers v. Golden Gate Bridge, Highway & Trans. Dist. (1979) 23 

Cal.3d 180, 184, fn. 1 (Doers); Christ v. Schwartz (2016) 2 Cal.App.5th 440, 

450, fn. 5; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 631–

632 (Pulver).) Further, even if a reviewing court takes judicial notice of 

documents, it is not for the truth of matters asserted therein (Guarantee 

Forklift, Inc. v. Capacity of Texas, Inc. (2017) 11 Cal.App.5th 1066, 1075), and 

here, Glassman’s motion extends to the truth of facts bearing on Safeco’s 

knowledge of her damages, or possession of information from which this 

knowledge could have been derived, when she made her CCP section 998 

offer.

Glassman urges that because these additional matters she seeks to 

include within the record on appeal include documents or facts that predate 
23

the trial court’s challenged decision, the facts and documents are not actually 

new and should be within the scope of our review. But these matters were 

still not before the trial court as it ruled on prejudgment interest. It would 

undermine basic principles of appellate review to include within the scope of 

our review matters that a party perhaps should have, but did not, offer to the 

trial court in the first instance in making the ruling now challenged on 

appeal. 

That Glassman placed these documents and facts before the trial court 

in the same case but for a different and later motion (in opposition to Safeco’s 

motion to tax costs) does not alter this conclusion. Nor does the fact that the 

arbitrator referred to or discussed in the final award, which is in the record, 

some of the matters now sought to be included within the scope of review. 

The arbitrator’s final award took into account and discussed not just 

documents and medical records that had apparently been exchanged in 

discovery and later were admitted into evidence at the hearing but also 

testimony of witnesses in the two-day evidentiary hearing that took place a 

year after Glassman’s CCP section 998 offer. And the decision does not 

necessarily identify or separate the particular evidentiary sources that led to 

the arbitrator’s specific findings and conclusions on Glassman’s damages, at 

least not in a way that would affect our analysis of the proper scope of the 

record in this appeal. 

Finally, it is not the case, as Glassman contends, that the purpose of 

the proposed additions to the record “is to show the amount involved.” It is 

more importantly for her to argue the certainty of the amounts of her special 

damages as of the date of her CCP section 998 offer and the degree of Safeco’s 

knowledge or awareness of those amounts and that certainty at the time. 

This is a far different and more expansive factual issue and one Safeco did 
24

not have the opportunity to rebut below with its own evidence, and it involves 

evidence that the trial court was not presented with when it ruled on

prejudgment interest. 

Glassman also separately moves this court to take evidence on appeal 

and for an independent factual finding, both under Code of Civil Procedure 

section 909 and rule 8.252(b) and (c). The evidence she seeks to add to the 

record in this way is a letter dated March 12, 2020, from Safeco’s counsel to 

hers in which Safeco affirmatively rejected her CCP section 998 offer and 

statements included within the letter that go to Safeco’s then-existing state of 

knowledge of the extent of her special damages. The independent factual 

finding she seeks us to make from the letter is that Safeco “possessed 

sufficient information to calculate [Glassman]’s damages up to the $1 million 

policy limit at the time of” her CCP section 998 offer in February 2020—the 

evidentiary gap directly bearing on Glassman’s claimed right to prejudgment 

interest under section 3287(a) that she failed to fill in the trial court. 

Glassman asserts that the letter is “newly discovered evidence” and 

was not presented to the trial court because she only became aware of it just 

before filing her motion in this court on September 6, 2022, after Safeco had 

filed its respondent’s brief. Although the letter was contained within her 

former attorney’s files, she avers she was medically advised at the time the 

letter was sent (as distinct from almost two years later when the trial court 

considered and ruled on prejudgment interest) to allow her attorney to 

handle and respond to matters concerning the then-pending arbitration. She 

further asserts that the letter constitutes evidence so conclusive that it 

compels the direction of a judgment in her favor, that its effect on the appeal 

is decisive, that it would enable this court to make a final determination of 
25

the issues without further proceedings in the trial court, and that exceptional 

circumstances warrant granting her motion, which Safeco opposes. 

Under Code of Civil Procedure section 909, “an appellate court may 

exercise its discretion to consider evidence that was not before the trial court 

in ‘ “exceptional circumstances.” ’ (In re Zeth S. (2003) 31 Cal.4th 396, 405, 

italics omitted [(Zeth)].) Moreover, this authority may be exercised only . . .

[when] the evidence arose after judgment or was unavailable to the movant 

before judgment [citation]; and [the] evidence supports the affirmance of the 

court’s judgment [citation].” (Lewis v. YouTube LLC (2015) 244 Cal.App.4th 

118, 123.) The power to receive new evidence and make factual findings “ 

‘should be exercised sparingly.’ ” (Zeth, at p. 405; MMM Holdings, Inc. v. 

Reich (2018) 21 Cal.App.5th 167, 187; Diaz v. Professional Community 

Management, Inc. (2017) 16 Cal.App.5th 1190, 1213; Bombardier 

Recreational Products, Inc. v. Dow Chemical Canada ULC (2013) 216 

Cal.App.4th 591, 605 (Bombardier) [discretionary power to make findings on 

review rarely exercised and only sparingly and in exceptional circumstances, 

absent which no findings should be made]; Tupman v. Haberkern (1929) 208 

Cal. 256, 269 (Tupman) [even in exceptional circumstances, power to make 

findings should be exercised only when doing so will terminate the litigation, 

either by affirming judgment or reversing with directions to enter judgment 

for appellant when it is clear losing party could not make a substantial 

showing in its favor on remand].) 

As a basic principle of appellate review, appellate courts will not use 

Code of Civil Procedure section 909 to resolve conflicts in the evidence or to 

substitute their own factual determinations for those of the trial court, 

especially for the purpose of outright reversal or remand for a new trial or 

hearing, as doing so “would effectively usurp the power of the trial court as 
26

an arbitrator of the facts.” (Tupman, supra, 208 Cal. at p. 269; see also 

Philippine Export & Foreign Loan Guaranty Corp. v. Chuidian (1990) 218 

Cal.App.3d 1058, 1090 [power of reviewing court to take evidence is never 

used where there is conflicting evidence in the record and substantial 

evidence supports trial court’s findings].)

In sum, we do not find this case to present exceptional circumstances to 

warrant the exercise of our discretion to either accept new evidence or make 

independent findings on appeal under Code of Civil Procedure section 909, 

especially to reverse the order under review. We do not perceive that granting 

the motion would end the litigation; rather, accepting the requested new 

evidence would instead allow the case to proceed based on facts never placed 

before the trial court in connection with the issue on review. Safeco did not 

have an opportunity to oppose the new evidence in the trial court; nor did it 

have the chance to address it in its respondent’s brief on appeal. And it would 

be entitled to do so. We accordingly decline to “overrule the trial court’s factfinding responsibility and authority and reinstate litigation where it was a 

party who failed to bring the facts to the trial court’s attention in the first 

instance.” (Bombardier, supra, 216 Cal.App.4th at p. 605.) 

As a corollary of our denial of Glassman’s motions concerning the 

appellate record, we also observe that a party’s brief cannot make arguments

that rely on facts either outside the record or improperly included within it; 

statements in the briefs based on such matter are disregarded by an 

appellate court. (Kendall v. Allied Investigations, Inc. (1988) 197 Cal.App.3d 

619, 625; Pulver, supra, 182 Cal.App.3d at pp. 631–632.) Glassman’s briefs, 

and also Safeco’s brief in response, cite to matters we decline to include 

within the scope of our review, and we will disregard statements and 

arguments in the briefs that rely on this improper matter for record support. 
27

II. The Relevant Statutory Landscape 

Before reaching Glassman’s legal arguments, we first lay out the 

relevant statutory context of her claims. 

A. Insurance Code section 11580.2

As noted, Insurance Code section 11580.2 is part of the Uninsured 

Motorist Act and sets the parameters of a UIM proceeding. “This law was 

conceived as a ‘temporary solution to the problem of the uninsured’ owner or 

operator of an automobile, who, in spite of the financial responsibility law 

[Veh. Code, § 16000, et seq.], proved to be ‘financially irresponsible’ [citation]. 

It has turned out to be a permanent solution—or, at least, a permanent 

partial solution—to this problem. [¶] At its core, in Insurance Code section 

11580.2, the law states that, generally, an automobile liability insurance 

policy that an insurer issues or delivers to an insured owner or operator 

covering damages that a third party shall be legally entitled to recover for 

bodily injury from the insured owner or operator[,] shall also cover damages 

that the insured owner or operator shall be legally entitled to recover for 

bodily injury from an uninsured owner or operator. (Id., subd. (a)(1).) In this 

aspect, its purpose is to require a ‘type of self-protection’ on the part of 

insured owners or operators. [Citations.]” (Mercury Ins. Group v. Superior 

Court (1998) 19 Cal.4th 332, 341 (Mercury); see also Pilimai, supra, 39 

Cal.4th at p. 140; Cal. State Automobile Assn. Inter-Insurance Bureau v. 

Carter (1985) 164 Cal.App.3d 257, 260 (Cal. State) [purpose of UIM law is to 

minimize losses to drivers involved through no fault of their own with 

financially irresponsible and uninsured adverse drivers].) 

In requiring arbitration of specified disputes—whether the insured is 

legally entitled to recover damages, and, if so, the amount—the law’s purpose 

is also “to offer a means of resolving disputes that is more expeditious and 
28

less expensive than litigation. [Citations.] Its beneficiaries include the 

insurer and the insured, who are each thereby given a right against litigating 

these issues. [Citation.] But they also include the courts themselves, which 

are thereby freed from entertaining such litigation. [Citation.]” (Mercury,

supra, 19 Cal.4th at p. 342; Pilimai, supra, 39 Cal.4th at p. 140.) 

Thus, by statute, “[c]overage disputes for underinsured motorists are 

subject to contractual arbitration. (Ins. Code, § 11580.2, subd. (f).) Absent 

language in the insurance agreement expanding the issues to be arbitrated 

[citation], underinsured motorist arbitrations contemplate only two issues—

‘whether the insured shall be legally entitled to recover damages, and if so 

entitled, the amount thereof’ ([ibid.]). In this context, the term ‘damages’ 

refers to the amount of damages the insured is entitled to recover from the 

underinsured motorist; ‘ “it does not include determination of the extent of 

coverage and the amount of money the insurance company is obligated to pay 

the insured.” ’ [Citations.]”15 (Storm, supra, 52 Cal.App.5th at p. 643.) But, as 

occurred here, when the arbitrator’s determination is that the damages 

suffered by the insured, so defined, exceed the policy limits available, it is 

sufficient for the arbitrator to make that determination without finding the 

actual total damages that would be owed from the UIM driver to the insured. 

(Cothron, supra, 103 Cal.App.3d at p. 862; see also State Farm, supra, 123 

Cal.App.4th at pp. 1429–1432 [where insurer paid policy limits before UIM 

15 Issues of bad-faith breach of the insurance contract are beyond the 

scope of the UIM arbitration. (McIsaac, supra, 64 Cal.App.5th at pp. 422–423; 

Corral v. State Farm Mutual Automobile Ins. Co. (1979) 92 Cal.App.3d 1004, 

1011 [plaintiff’s bad-faith cause of action not based on facts surrounding auto 

accident nor policy provisions at issue in UIM arbitration].) And, relatedly,

punitive damages, which have a purpose distinct from UIM proceedings, are 

not available in such proceedings. (Cal. State, supra, 164 Cal.App.3d at pp. 

260–264.) 
29

arbitration was initiated, there is no controversy left to be arbitrated].) The 

UIM arbitration award, in any event, may not exceed the policy limits. 

(Cothron, at p. 860; State Farm, at p. 1428, fn. 2.) 

As noted, the parties here contracted in the applicable insurance 

policies to arbitrate just the two issues as set out in Insurance Code section 

11580.2, subdivision (f)—the liability of the UIM driver to Glassman and the 

amount of damages she would be entitled to from that party, up to the 

umbrella-policy limits. The scope of their agreement thus did not extend to 

the issue of arbitration costs or prejudgment interest, leaving both these 

issues for resolution, if any, by the superior court. 

Because UIM arbitration is contractual in nature, the parties by 

contract—the applicable policy of insurance—may agree as to the division of 

arbitration costs. This allowance is consistent with Code of Civil Procedure 

section 1284.2, which is part of the California Arbitration Act (Code Civ. 

Proc., § 1280 et seq.) and which provides that absent such agreement, each 

party to an arbitration, including a UIM arbitration, will pay its pro rata 

share of the arbitrator’s fees and expenses and will bear its own other costs 

related to the arbitration proceeding. (Storm, supra, 52 Cal.App.5th at p. 644; 

accord, Austin v. Allstate Ins. Co. (1993) 16 Cal.App.4th 1812, 1815 (Austin) 

[Code Civ. Proc., § 1284.2 “sets forth the legislative policy of this state that 

arbitration costs are to be borne by the party incurring them, unless the 

arbitration agreement provides otherwise”].) 

But this does not mean the cost-shifting provisions of CCP section 998, 

discussed below, are inapplicable for recovery of costs incurred during the 

UIM arbitration. In fact, as with other kinds of arbitrations, they are.16

16 Costs incurred during an arbitration are distinguished from those 

incurred in a later judicial proceeding under the California Arbitration Act
30

(Pilimai, supra, 39 Cal.4th at pp. 142, 149–150 [UIM arbitration under Ins. 

Code, § 11580.2 is an arbitration within the meaning of CCP section 998 and 

subject to its cost-shifting provisions]; Storm, supra, 52 Cal.App.5th at pp. 

644–646.) The term “costs” in this sense is distinguished from prejudgment 

interest under section 3287, which is not a cost but is instead an element of 

compensatory damages. (Bodell Construction Co. v. Trustees of California 

State University (1998) 62 Cal.App.4th 1508, 1525, fn. 14 (Bodell).) Nothing 

in the Uninsured Motorist Act or the California Arbitration Act directly 

addresses the availability of prejudgment interest in UIM proceedings. And 

per Pilimai, section 3291 (providing for prejudgment interest as a cost to a 

plaintiff issuing a prevailing CCP section 998 offer in a personal-injury 

action) does not apply in a UIM proceeding, which is instead in the nature of 

an action arising in contract based on the policy of insurance. (Pilimai, supra, 

39 Cal.4th at pp. 137, 140–141, 146 [action against insurance company to 

recover policy benefits is one for “damages for breach of contract”]; Mercury, 

supra, 19 Cal.4th at p. 342 [though mandated by statute, UIM arbitration is 

a form of contractual arbitration, the contract being an automobile-liability 

insurance policy].) 

In sum, the Uninsured Motorist Act, and specifically Insurance Code 

section 11580.2, does not address the availability of prejudgment interest in 

UIM proceedings, whether expressly allowing or disallowing it. And while the 

(Code Civ. Proc., § 1280, et seq.) In this regard, Code of Civil Procedure 

section 1293.2 provides that “ ‘[t]he court shall award costs upon any judicial 

proceeding under’ ” the [California Arbitration Act] to confirm, correct, or 

vacate an arbitration award. (See Austin, supra, 16 Cal.App.4th at pp. 1815–

1816 [‘the Legislature has distinguished between costs incurred in an 

arbitration proceeding and costs incurred in superior court to enforce an 

arbitration award’].)” (Storm, supra, 52 Cal.App.5th at p. 644.) 
31

cost-shifting provisions of CCP section 998, described below, do apply to UIM 

proceedings, such proceedings are not subject to section 3291, under which 

prejudgment interest is treated as a recoverable cost as a consequence of a 

prevailing CCP section 998 offer in a personal-injury action. (Pilimai, supra, 

39 Cal.4th at pp. 145–147.) 

B. CCP Section 998

CCP section 998 provides that the costs of suit allowed to a prevailing 

party under Code of Civil Procedure sections 1031 and 1032 will be withheld 

or augmented—shifted—as therein specified. At subdivision (b), CCP section 

998 provides that not less than 10 days before trial or arbitration, “any party 

may serve an offer in writing upon any other party to the action to allow 

judgment to be taken or an award to be entered in accordance with the terms 

and conditions stated at that time.” As relevant here, subdivision (d) of CCP 

section 998 provides that “[i]f an offer made by a plaintiff is not accepted and 

the defendant fails to obtain a more favorable judgment or award in any 

action or proceeding other than an eminent domain action, the court or 

arbitrator, in its discretion, may require the defendant to pay a reasonable 

sum to cover postoffer costs of the services of expert witnesses, who are not 

regular employees of any party, actually incurred and reasonably necessary 

in either, or both, preparation for trial or arbitration, or during trial or 

arbitration, of the case by the plaintiff, in addition to plaintiff’s costs.” 

Nothing in CCP section 998 addresses prejudgment interest. 

An offering party who prevails on its offer bears the later burden of 

showing that the offer was “valid” under CCP section 998, meaning compliant 

with the statute and “ ‘sufficiently specific to permit the recipient 

meaningfully to evaluate it and make a reasoned decision whether to accept 

it, or reject it and bear the risk [one] may have to shoulder [the] opponent’s 
32

litigation costs and expenses. [Citation.]’ ” (MacQuiddy v. Mercedes-Benz 

USA, LLC (2015) 233 Cal.App.4th 1036, 1050; see Covert v. FCA USA, LLC

(2022) 73 Cal.App.5th 821, 833 (Covert).) Validity is determined as of the date 

the offer was served. (Covert, at p. 832.) 

Once the validity of a CCP section 998 offer is established by the 

offeror, the burden then shifts to the offeree to demonstrate that the offer was 

unreasonable or not made in good faith. (Covert, supra, 73 Cal.App.5th at 

p. 833.) If the actual judgment is more favorable to the offeror than was the 

offer, it is prima facie evidence of the offer’s reasonableness. (Id. at pp. 833–

834.) Whether an offer is made in good faith is based on whether, at the time 

it was made, it carried a reasonable prospect of acceptance by the offeree. (Id. 

at p. 834.) The court inquires: “ ‘First, was the [CCP section] 998 offer within

the “range of reasonably possible results” at trial, considering all of the 

information the offeror knew or reasonably should have known? [Citation.] 

Second, did the offeror know that the offeree had sufficient information, 

based on what the offeree knew or reasonably should have known, to assess 

whether the “offer [was] a reasonable one,” such that the offeree had a “fair 

opportunity to intelligently evaluate the offer”?’ [Citations.]” (Id. at p. 834.)

“The purpose of [CCP] section 998 is to “ ‘encourage settlement by 

providing a strong financial disincentive to a party—whether it be a plaintiff 

or a defendant—who fails to achieve a better result than that party could 

have achieved by accepting his or her opponent’s settlement offer. (This is the 

stick. The carrot is that by awarding costs to the putative settler the statute 

provides a financial incentive to make reasonable settlement offers.)” ’ 

[Citation.]” (Pilimai, supra, 39 Cal.4th at p. 139.)

As noted, CCP section 998 and its cost-shifting provisions apply to UIM 

arbitrations, and the “ ‘maximum liability’ provision of Insurance Code 
33

section 11580.2, subdivision (p)(4) does not preclude recovery of costs under” 

CCP section 998, which “added to the arbitration award, exceed the coverage 

limits.” (Pilimai, supra, 39 Cal.4th at pp. 137; see id. at pp. 144–145.) This is 

because the obligation to pay costs under CCP section 998 does not arise in a 

UIM proceeding from the policy of insurance, and is thus not limited by it, 

but instead from CCP section 998 itself, which imposes an obligation to pay 

costs “arising out of [a party’s] behavior as a litigant.” (Pilimai, supra, 39 

Cal.4th at p. 144; see also id. at p. 145.) As CCP section 998 does not address 

prejudgment interest—not a cost under section 3287(a) but an element of 

damages—the obligation rooted in CCP section 998 to pay costs that arises 

out of a party’s “behavior as a litigant” (id. at p. 144) does not extend to 

prejudgment interest claimed under section 3287(a). 

C. Section 3287(a)

Section 3287(a) “allows a person to recover prejudgment interest on 

‘damages certain, or capable of being made certain by calculation[,]’ from the 

day such damages are certain or capable of being made certain. ‘[T]he court 

has no discretion, but must award prejudgment interest upon request, from 

the day there exists both a breach and a liquidated claim.’ (North Oakland[, 

supra, 65 Cal.App.4th at p.] 828.) Prejudgment interest [under section 

3287(a)] is an element of damages, not a cost. (Id. at p. 830.)” (Warren v. Kia 

Motors America, Inc. (2018) 30 Cal.App.5th 24, 34, fn. omitted (Warren); 

Watson Bowman Acme Corp. v. RGW Construction, Inc. (2016) 2 Cal.App.5th 

279, 293 (Watson) [trial court has no discretion under section 3287(a) and 

must award prejudgment interest from the first day there exists both a 

breach and a liquidated claim]; Bodell, supra, 62 Cal.App.4th at p. 1525 & fn. 

14 [prejudgment interest awarded under section 3291 and CCP section 998 is 

a recoverable cost, whereas interest under section 3287 is a form of 
34

compensatory damages].) But it may be claimed on a post-trial motion and 

need not be submitted to a jury as trier of fact. (North Oakland, supra, 65 

Cal.App.4th at pp. 830–831.) 

“ ‘ “ ‘Damages are deemed certain or capable of being made certain 

within the provisions of [section 3287(a)] where there is essentially no 

dispute between the parties concerning the basis of computation of 

damages[,] if any are recoverable[,] but whether their dispute centers on the 

issue of liability giving rise to damage.’ [Citation.]” [Citation.] Thus, “ ‘ “[t]he 

test for recovery of prejudgment interest under [section 3287(a)] is whether 

defendant actually know[s] the amount owed or from reasonably available 

information could the defendant have computed that amount. [Citation.]” 

[Citations.] “The statute . . . does not authorize prejudgment interest where 

the amount of damage, as opposed to the determination of liability, ‘depends 

upon a judicial determination based on conflicting evidence and it is not 

ascertainable from truthful data supplied by then claimant to [their] debtor.’ 

[Citations.]” [Citation.] Thus, where the amount of damages cannot be 

resolved except by verdict or judgment, prejudgment interest is not 

appropriate. [Citation.]’ [Citation.]” [Citations.]’ [Citation.]” (Warren, supra, 

30 Cal.App.5th at p. 44, italics added; see Olson v. Cory (1983) 35 Cal.3d 390, 

402 [the certainty required of section 3287(a) is absent when the amounts 

due turn on disputed facts, but not when the dispute is confined to the rules 

governing liability].) 

Further, prejudgment interest under section 3287(a) is not authorized 

when there is a factual dispute as to the particular day preceding verdict or 

judgment from which interest on a liquidated sum would accrue. (Happolt v. 

Guardian Life Ins. Co. of America (1949) 90 Cal.App.2d 386, 405 [trial court 

erred in awarding prejudgment interest from date plaintiff served a claim on 
35

defendant carrier under accidental-death policy as there was no evidence 

showing when insured notified carrier that death was accidental, a condition 

for payment on the claim]; see Cox v. McLaughlin (1881) 76 Cal. 60, 70 

[affirming denial of prejudgment interest where plaintiff’s services and 

material furnished by him were uncertain as to amount, character, value, 

and time of payment, until fixed by verdict or findings of the court].)

“[T]he general rule is that damages are unascertainable if the[ir] 

amount . . . depends on disputed facts or the available factual information is 

insufficient to determine the amount; and damages are ascertainable if the 

only impediment to the determination of the amount is a legal dispute 

concerning liability or the measure of damages.” (Collins, supra, v. 205 

Cal.App.4th at p. 151.) “A claim that damages [are] $0 is not a dispute which 

renders the amount of damages uncertain; it is effectively an argument for no 

liability. A defendant’s denial of liability does not make damages uncertain 

for purposes of” section 3287(a). (Los Angeles Unified School District v. Torres 

Construction Co. (2020) 57 Cal.App.5th 480, 508, fn. omitted.) In insurance 

cases involving multiple carriers disputing allocation of loss, the pivot point 

for ascertaining certainty has been described not as a dispute on liability 

versus one on damages but as one “between legal issues and factual issues—

i.e., a dispute over a factual issue precludes certainty, but a dispute over a 

legal issue does not.” (State of California v. Continental Ins. Co. (2017) 15 

Cal.App.5th 1017, 1038 (Continental); see id. at p. 1039, citing Collins, supra, 

205 Cal.App.4th at p. 152; see also Benson v. City of Los Angeles (1963) 60 

Cal.2d 355, 366, superseded by statute on another ground as stated in In re 

Marriage of Powers (1990) 218 Cal.App.3d 626, 636.)

There are two competing policy considerations behind section 3287(a). 

On the one hand, the law requires that a claim be liquidated so a party
36

cannot be in default for the failure to know what sum to pay. On the other 

hand, the law recognizes that injured parties should be compensated for the 

loss of use of their money from the date of the injury, a policy that “has been

implemented through a generally liberal construction of ‘certainty’ under 

section 3287. [Citation.]” (Chesapeake Industries, Inc. v. Togova Enterprises, 

Inc. (1983) 149 Cal.App.3d 901, 907 (Chesapeake); see also Lakin v. Watkins 

Associated Industries (1993) 6 Cal.4th 644, 663 (Lakin); Flethez v. San 

Bernardino County Employees Retirement Assn. (2017) 2 Cal.5th 630, 643

(Flethez); Continental, supra, 15 Cal.App.5th at p. 1038.) These competing 

policy considerations have led “courts to focus on the defendant’s knowledge 

about the amount of the plaintiff’s claim. The fact that the plaintiff or some 

omniscient third party knew or could calculate the amount is not sufficient. 

The test . . . is: did the defendant actually know the amount owed or from 

reasonably available information could the defendant have computed that 

amount. Only if one of those two conditions is met should the court award 

prejudgment interest [under section 3287(a)]. [Citations.]” (Chesapeake, 

supra, 149 Cal.App.3d at p. 907, 2nd italics added; see also Watson, supra, 2 

Cal.App.5th at pp. 293–294.) 

The defendant’s or debtor’s state of actual knowledge of the amount due 

to the plaintiff or creditor, or ability to calculate that amount from 

information that is reasonably available, is thus key to the determination in a 

particular case as to whether damages are certain or capable of being made 

certain as of a particular day to entitle the plaintiff to prejudgment interest 

under section 3287(a). “Pursuant to the statute, if a defendant does not know 

or cannot readily ascertain damages, it is incumbent on the plaintiff to 

provide the defendant with some statement and supporting data from which 

the defendant can make the necessary determination. [Citation.] The fact 
37

that the amount of the damages is in dispute is relevant only insofar as the 

dispute produces conflicting evidence from which the amount of damages 

cannot be ascertained with certainty. [Citation.] When . . . the amount of the 

damages is not in dispute, the lack of a dispute is merely a factor to be 

considered in the determination of whether the damages met the statutory 

requirement of certainty or capab[ility] of being made certain for fixing 

prejudgment interest. [Citation.]” (Levy-Zentner Co. v. Southern Pacific 

Transportation Co. (1977) 74 Cal.App.3d 762, 798–799 (Levy-Zentner).) 

Thus, unlike section 3291, which makes prejudgment interest available 

to a plaintiff with a prevailing CCP section 998 offer in a personal-injury 

action, eligibility for prejudgment interest under section 3287(a) is not a 

matter of making a “simple comparison” between the judgment and the 

statutory offer to compromise. (Lakin, supra, 6 Cal.4th at pp. 662–663, fn. 13

[eligibility for interest under § 3291 is predicated on “simple comparison” 

between the judgment, including all the damages, and the CCP section 998 

offer]; Steinfeld, supra, 60 Cal.App.4th at pp. 17–18.) The test is rather 

whether the amount of the claimant’s damages was certain, or capable being 

made certain. In this regard, “uncertainty over the amount of damages” 

should not be confused with “uncertainty as to whether there is liability for 

damages in an amount that is certain.” (Cheema v. L.S. Trucking, Inc. (2019) 

39 Cal.App.5th 1142, 1151.) 

Unlike section 3291, applicable only in personal-injury actions and

expressly tied to CCP section 998; or section 3288, applicable “in an action for 

the breach of an obligation not arising from contract, and in every case of 

oppression, fraud or malice;” or the discretionary section 3287, subdivision 

(b), applicable to actions for unliquidated damages in contract, mandated 

prejudgment interest under section 3287(a) for liquidated claims is not 
38

expressly limited to certain types of actions. Instead, it “applies by its terms 

without restriction to ‘[e]very person who is entitled to recover damages.’ ”

(Levy-Zenter, supra, 74 Cal.App.3d at p. 796, italics omitted.) 

For example, section 3287(a) has been applied to allow the recovery of 

prejudgment interest in actions arising in mandamus, for the destruction of 

real property, and in inverse condemnation. (Levy-Zenter, supra, 74 

Cal.App.3d at pp. 796–798.) It does not apply to actions under the unfair 

competition law (Bus. & Prof. Code, § 17200), which are for injunctive relief 

and restitution, not damages. (Espejo, supra, 13 Cal.App.5th at p. 375 [but 

discretionary interest may be awarded in equity as a component of 

restitution].) Nor does it apply in an action for wrongfully withheld wages or 

business expenses, where a discretionary and equitable award of 

prejudgment interest is available to make an injured party whole. (Id. at pp. 

375–376.) Or to a valuation of corporate shares under the statutory buyout 

provisions of Corporations Code section 2000, as a corporation’s election to 

pay the fair value of shares is not equivalent to the dissolution-seeking 

shareholder receiving “damages” for a detriment suffered, as damages are 

defined in section 3281, nor was it a sum the corporation is obligated to pay.

17

(Crane R.R. Crane Investment Corp. (2022) 82 Cal.App.5th 748, 759–761

(Crane).) 

17 Section 3281 “ ‘defines “damages” as monetary compensation for one 

“who suffers detriment from the unlawful act or omission of another.” ’ 

(Flethez, supra, 2 Cal.5th at p. 635, fn. 2, quoting § 3281 [‘[e]very person who 

suffers detriment from the unlawful act or omission of another, may recover 

from the person in fault a compensation therefor in money, which is called 

damages’].)” (Crane, supra, 82 Cal.App.5th at p. 759.) “Under specified 

conditions, an award of damages [as defined by section 3281] may include an 

award of prejudgment interest” under section 3287(a). (Flethez, supra, 2 

Cal.5th at p. 635, fn. 2.) 
39

Our Supreme Court, in fact, has rejected the notion that section 

3287(a)’s application is limited by the nature of the plaintiff’s claim and has 

instead held that it provides for the general availability of interest if its 

conditions are met; nor is it a barrier to an award of prejudgment interest 

under section 3287(a) that such relief is not specifically authorized by a 

statute underlying the plaintiff’s claims. (Tripp v. Swoap (1976) 17 Cal.3d 

671, 681–682 [prejudgment interest under section 3287(a) available in 

mandate case, as there was an underlying monetary obligation, recovery was 

certain or capable of being made certain by calculation, and right to recovery 

vested on a particular day], overruled on other grounds in Frink v. Prod

(1982) 31 Cal.3d 166, 180; Mass v. Board of Education (1964) 61 Cal.2d 612, 

626 [section 3287(a) reaches actions in mandate brought to recover sums of 

money owing as a statutory obligation]; Currie v. Workers’ Compensation 

Appeals Board (2001) 24 Cal.4th 1109, 1115–1117 [section 3287(a) applies to 

backpay awards made under Lab. Code, § 132a]; see Flethez, supra, 2 Cal.5th 

at pp. 641–642 [collection of wage, benefit, and labor cases to which 

section 3287(a) found to apply]; see also Levy-Zentner, supra, 74 Cal.App.3d 

at pp. 796–797.) 

Thus, “ ‘the key distinguishing factor’ ” for determining section 

3287(a)’s application is not, for example, “ ‘whether the cause of action arose 

in tort or contract, but rather whether the damages [are] readily 

ascertainable.’ ” (Wisper Corp. v. California Commerce Bank (1996) 49 

Cal.App.4th 948, 958; Levy-Zentner, supra, 74 Cal.App.3d at p. 795.)

Finally, as noted, prejudgment interest under section 3287(a) is 

generally available in matters subject to contractual arbitration, even if only 

from the date of the final award, which itself becomes a new contractual 

obligation or fixed liability regardless of the individual elements that 
40

comprised that liability, to entry of judgment. (Tenzera, Inc. v. Osterman 

(2012) 205 Cal.App.4th 16, 21–23 (Tenzera); County of Solano v. Lionsgate 

Corp. (2005) 126 Cal.App.4th 741, 753 (County of Solano); Britz, Inc. v. AlfaLava Food & Dairy Co. (1995) 34 Cal.App.4th 1085, 1106–1107 (Britz); 

Pierotti v. Iorian (2000) 81 Cal.App.4th 17, 27 (Pierotti).)

III. Neither Section 3287(a) Nor CCP Section 998, Separately or 

Together, Provide for Prejudgment Interest in a UIM Proceeding 

Premised on an Insured’s Prevailing CCP Section 998 Offer 

In her briefing, below and on appeal, Glassman appears to assert that 

without any other showing to establish the certainty of the amount of 

damages in a particular case, section 3287(a) and CCP section 998 operate

together to provide for recovery of prejudgment interest to an insured who 

makes a prevailing CCP section 998 offer in a UIM proceeding, from the date 

of the offer. This is because, she argues, such an offer, seemingly by itself, “is 

an appropriate mechanism to liquidate a contractual UIM claim” and thereby

establish a right to mandatory prejudgment interest under section 3287(a). 

Stated differently, her asserted position is that her CCP section 998 offer, on 

its own, “served to establish the sum certain and date certain for purposes of 

her claim for prejudgment interest under [section 3287(a)]” and it “set a 

statutory deadline for avoiding established [prejudgment interest] 

repercussions.”18

18 Glassman also appears to retreat from this purely statutory 

argument by then coupling it with contentions about the sufficiency of the 

record here to establish the certainty of the amount of her damages and the 

date they became certain. In this regard, she states that she “does not seek a 

simple comparison between the [CCP s]ection 998 offer and the arbitrator’s 

award in this case. Rather, [she] seeks application of [CCP s]ection 998 as a 

mechanism to establish certainty under . . . section 3287[(a)] based on the 

record in this case.” (Italics added.) She further states that she “does not 
41

As we read this contention, it is purely one of law involving statutory 

interpretation or construction and divorced from any disputed factual 

question. To such a claim, we apply independent review. (California Building 

Industry Assn. v. State Water Resources Control Board (2018) 4 Cal.5th 1032, 

1041.) “Our primary task ‘in interpreting a statute is to determine the 

Legislature’s intent, giving effect to the law’s purpose. [Citation.] We consider 

first the words of a statute, as the most reliable indicator of legislative intent. 

[Citation.]’ [Citation.]” (Ibid.) 

We reject as lacking a legal basis the claim that section 3287(a) and 

CCP section 998 can be read, separately or together, to provide that a 

successful CCP section 998 offer sufficiently liquidates a claim for damages 

and establishes their certainty in a UIM proceeding for purposes of 

mandating an award of prejudgment interest as under section 3287(a). 

Neither statute provides for this, nor references the other. Their respective 

subject matter and purposes are different. And we find no authority to 

support the claim, particularly to the extent the argument would displace

argue that the reasonableness of the [CCP s]ection 998 offer established that 

[her] damages were certain. Rather, [her] position is that the policy-limit 

[CCP s]ection 998 offer liquidated [her] claim and Safeco had sufficient 

information at that time to calculate [her] damages up to its liquidated 

maximum liability of $1,000,000.” (Italics added.) And that she “does not 

argue that her damages were certain because the [CCP s]ection 998 offer was 

reasonable and in good faith. Rather, [her] position is that the [CCP s]ection 

998 policy-limit offer liquidated [her] policy-limit claim for contractual UIM 

benefits. At the time of the [CCP s]ection 998 offer, Safeco had sufficient 

information to calculate [her] damages, warranting an award of prejudgment 

interest under” section 3287(a). (Italics added.) 

For the sake of completeness, we address the purely statutory 

argument first, and then proceed to the alternative argument that invokes 

the record in this case for support.
42

existing law on assessing the certainty of damages for purposes of mandatory 

prejudgment interest under 3287(a). 

First, there is no express statutory language in either section 3287(a) or 

CCP section 998 to suggest that these two provisions operate at all in 

tandem, in UIM proceedings or otherwise. And we have no legislative 

authority to make them do so. The Legislature showed that it knew how to tie 

prejudgment interest to the cost-shifting features of CCP section 998 when it 

wanted to, as it expressly did in section 3291 but did not in section 3287(a). “ 

‘Where the Legislature makes express statutory distinctions, we must 

presume it did so deliberately, giving effect to the distinctions, unless the

whole scheme reveals the distinction is unintended. This concept merely 

restates [a] statutory[-]construction canon: we presume the Legislature 

intended everything in a statutory scheme, and we should not read statutes 

to omit expressed language or include omitted language. As our Supreme 

Court stated, we “are aware of no authority that supports the notion of 

legislation by accident.” [Citation.]’ [Citation.]” (Yao v. Superior Court (2002) 

104 Cal.App.4th 327, 333.) Based solely on the language of section 3287(a) 

and CCP section 998—two independent statutes—there is no legal basis for a 

court to read or bind them together in their application. 

Second, the purpose of CCP section 998’s cost-shifting features is 

purely to promote the legislative policy of encouraging settlement. Unrelated 

to this policy, section 3287(a) is a means to compensate a plaintiff for lost use 

of funds with prejudgment interest when damages were ascertainable to a

defendant with sufficient certainty. In this, prejudgment interest under 

section 3287(a) is a component of damages; it is not a cost, nor is it treated as 

such or similarly as an obligation “arising out of [a party’s] behavior as a 

litigant.” (Pilimai, supra, 39 Cal.4th at p. 144; see also id. at p. 145; Bodell, 
43

supra, 62 Cal.App.4th at p. 1525, fn. 14; Warren, supra, 30 Cal.App.5th at p. 

34.) 

Third, Glassman offers no legal authority or support for us to read 

section 3287(a) and CCP section 998 together as she urges. Contrary to her 

suggestion, neither the Supreme Court’s holding in Pilimai (that section 3291 

does not apply in UIM proceedings) nor in Gourley v. State Farm Mutual 

Automobile Ins. Co. (1991) 53 Cal.3d 121, 123–124 (that section 3291 does 

apply in insurance bad-faith actions or those for breach of the covenant of 

good faith and fair dealing) open the door to the result she seeks. Neither 

case’s holding even touches on section 3287(a), and these authorities do not 

“invite” us to effectively substitute section 3287(a) for the inapplicable section 

3291 in a UIM proceeding by attributing to a prevailing CCP section 998 offer 

in such a proceeding the power or proxy to liquidate damages as required by 

section 3287(a). 

IV. There Was a Void of Evidence Before the Trial Court Showing 

That Glassman’s Damages Were Certain or Capable of Being 

Made Certain Under Section 3287(a) on the Date She Made Her 

CCP Section 998 Offer 

As framed by Glassman, the issue in this case is: “Under what 

circumstances does a policyholder’s [CCP section 998 offer] serve as a 

mechanism to establish the requisite certainty for an award of prejudgment 

interest [under section 3287(a)] in UIM proceedings?” To the extent she 

contends that such an offer alone effectively liquidates the claim as a matter 

of law—by application of section 3287(a) and CCP section 998 together—to 

mandate an award of prejudgment interest from the date of the offer, we 

have rejected the claim. But, as noted, Glassman also contends that the 

undisputed record in this case otherwise shows that her damages were 
44

certain or capable of being made certain as of the date of her CCP section 998 

offer, in February 2020. 

“ ‘ “On appeal, we independently determine whether damages were 

ascertainable for purposes of [section 3287(a)] absent a factual dispute as to 

what information was known or available to the defendant at the time” 

[citation].’ [Citation.]” (Continental, supra, 15 Cal.App.5th at p. 1038; accord, 

Collins, supra, 205 Cal.App.4th at p. 151.) On the record before the trial court 

here as it considered and denied prejudgment interest—our appellate record 

properly delineated—there were no facts from which it could be determined 

just what information on the amount of Glassman’s damages—general or 

special—was known or reasonably available to Safeco when she made her 

CCP section 998 offer roughly a year before the arbitration hearing. And in 

the absence of any evidence on the point, we are unable to determine whether 

there is a true factual dispute.

A party seeking an award of prejudgment interest, at least under 

section 3291, bears the burden of proving entitlement thereto. (Lakin, supra, 

6 Cal.4th at pp. 659–661.) At bottom, this stems from Evidence Code section 

500, which provides that “[e]xcept as otherwise provided by law, a party has 

the burden of proof as to each fact the existence or nonexistence of which is 

essential to the claim for relief or defense that [the party] is asserting.” We 

see no reason why this allocation of the burden of proof would not likewise 

apply to prejudgment interest under section 3287(a), especially as it is a 

component of compensatory damages as to which a plaintiff normally bears

the burden of proof. 

As we have thoroughly outlined, for a plaintiff’s damages to be deemed 

certain or capable of being made certain on a particular day to mandate 

prejudgment interest under section 3287(a), the defendant must actually 
45

know the amount or must have been able to compute it on the particular day 

from reasonably available information. (Warren, supra, 30 Cal.5th at p. 44; 

Collins, supra, 205 Cal.App.4th at pp. 150–151; Cassinos, supra, 14 

Cal.App.4th at p. 1789.) The trial court here concluded that especially with 

Glassman’s general damages for emotional distress, the total amount of her 

damages was not certain or capable of being made certain under section 

3287(a) when she made her CCP section 998 offer. Glassman faults this 

conclusion, contending that her special damages alone, apart from her then 

undetermined general emotional-distress damages, exceeded the umbrellapolicy limits when she made her CCP section 998 offer, and that Safeco then 

knew this, mandating an award of prejudgment interest from the offer date 

based on the umbrella-policy limits. That might be so, but it was not shown 

on this record based on the evidence before the trial court when it made its 

ruling.

Then before the court were Glassman’s three declarations—the initial 

one filed with her petition, which said nothing bearing on the subject of 

prejudgment interest under section 3287(a); the amended one that added 

only the fact of her having made her CCP section 998 offer in February 2020; 

and her supplemental one, which contained no further facts of relevance to 

the issue. Glassman now contends that the final arbitration award rendered 

in May 2021, which is in the record, contains enough to show that Safeco 

knew in February 2020 when she made her offer to compromise that the 

undisputed amount of her special damages attributable to the accident alone 

exceeded the $1 million policy limits such that mandatory prejudgment 

interest is recoverable from that date under section 3287(a). This is not the 

case. She further contends that the “information available to Safeco at the 
46

time of the [CCP s]ection 998 offer was the same evidence relied upon by the 

arbitrator . . . .” The record does not show this either.

Although the arbitrator’s final award discussed the united opinions of 

various doctors on the extent and cause of Glassman’s injuries and cited to 

her medical records in this regard, it is not evident from the award itself that 

these conclusions were derived solely from medical records available to Safeco 

in February 2020. 

Rather, the arbitrator’s conclusions appear to have been reached, at 

least in part, through medical testimony given at the arbitration hearing in 

January 2021. One cannot infer from the award alone that Safeco knew the 

amount of Glassman’s special damages attributable to the accident in 

February 2020, and knew they were enough ($1,505,000) to trigger a policylimits award in her favor. The arbitration award itself did not specifically 

quantify Glassman’s special damages, instead determining only that her 

“monetary expenses” were “well over $1 million, a large part of which were 

covered by insurance,” or, adding lost wages and future treatment, “well 

over” $1,374,129. The arbitrator’s award discusses what appears to be the 

oral testimony of medical experts opining in January 2021 on Glassman’s 

damages based on their having reviewed her medical records before giving 

their respective opinions. But one cannot tell what of these records had been 

produced to Safeco in discovery by February 2020. The arbitrator’s discussion 

on this includes reference to the opinion of Safeco’s retained IME doctor who 

apparently produced a report in January 2020, not in the record, which 

Glassman urges rendered her special damages undisputed and liquidated.

But it is not apparent from the arbitration award itself just what records this 

doctor reviewed to reach her conclusions in January 2020 on the extent and 

cause of Glassman’s injuries and special damages. And it cannot be said from 
47

the award alone that Safeco knew then that there was and would be no 

conflicting evidence on the extent and cause of Glassman’s special damages. 

Thus, the arbitrator’s conclusions about the extent of Glassman’s recoverable 

special damages and their cause may well have come from testimony elicited 

in the hearing itself, even with respect to the IME doctor, who testified in the 

arbitration hearing. There is also the Howell issue—unaddressed by the 

arbitrator—which arguably would have limited the quantification of 

Glassman’s compensable damages for medical expenses to the lesser of the 

amount paid or incurred for medical services and the reasonable value of the 

services. (Howell, supra, 52 Cal.4th at p. 556.)

Glassman implicitly acknowledges the evidentiary void in the record by 

her efforts to augment it and her request for our independent factual finding 

that Safeco “possessed sufficient information to calculate [her] damages up to 

the $1 million policy limit at the time of” her CCP section 998 offer in 

February 2020. On the existing appellate record, properly scoped, there was 

no evidence before the trial court as it considered prejudgment interest from 

which it could have concluded that Safeco did indeed possess such 

information in February 2020 to mandate an award of prejudgment interest 

from the date of Glassman’s CCP section 998 offer. And the arbitration award 

rendered in May 2021 does not illuminate the issue of the state of Safeco’s 

knowledge or possession of all the relevant information in February 2020.

Without that evidence, and based on our independent review applying 

well-established law on assessing the certainty of damages, there is no 

factual or evidentiary basis on which to reverse the trial court’s denial of 

prejudgment interest under section 3287(a) from the date of Glassman’s CCP 

section 998 offer in February 2020. There is no evidence in the record that 

Safeco then knew or had reasonable access to information from which it could 
48

have concluded with sufficient certainty that the amount of Glassman’s 

damages, especially her special damages, were enough to trigger a $1 million

policy-limits award. (Warren, supra, 30 Cal.App.5th at p. 44; Chesapeake, 

supra, 149 Cal.App.3d at p. 907.) 

 

V. Even if Prejudgment Interest Under Section 3287 is Available in 

UIM Proceedings From the Date of the Final Arbitration Award, 

Glassman Forfeited This Claim 

As noted, Glassman’s petition to confirm the arbitration award 

generally prayed for “interest on the [a]ward from the date of the [a]ward to 

the date of judgment,” for “recoverable costs and interest,” and for “such other 

and further relief as the Court may deem proper.” This was sufficient to 

support a request for prejudgment interest in the trial court under section 

3287(a). (North Oakland, supra, 65 Cal.App.4th at p. 829.) But in pursuit of 

her request for interest in the trial court, Glassman maintained throughout 

that her damages were certain or capable of being made certain either as of 

the date of her CCP section 998 offer in February 2020, or the date the offer 

expired in March 2020. She never articulated or argued an alternative 

request for prejudgment interest under section 3287(a) from the date of the 

arbitration award in May 2021, as she now does for the first time in her 

opening brief on appeal. And the trial court never made a ruling on 

prejudgment interest running from the date of the arbitration award. We 

accordingly view the alternative theory of relief as effectively abandoned in 

the trial court and forfeited on appeal. 

A successful party to an arbitration may be entitled to post-award, 

prejudgment interest under section 3287(a). (Britz, supra, 34 Cal.App.4th at 

pp. 1106–1107; Pierotti, supra, 81 Cal.App.4th at p. 27 [interest awarded on 

“certain” arbitration award from date of award]; Tenzera, supra, 205 
49

Cal.App.4th at pp. 21–22.) This is because the arbitration award itself can 

result in a new and fixed liability for which prejudgment interest under 

section 3287(a) is available. (Pierotti, at p. 27.) Accordingly, the successful 

party may be entitled to “recover damages certain” within the meaning of 

section 3287(a), further entitling the party to prejudgment interest on the 

amount of the award from the date the arbitrator renders it until the date of 

judgment confirming the award. (County of Solano, supra, 126 Cal.App.4th at 

pp. 752–754.) This theory thus rests on the award itself as liquidating the 

damages certain for purpose of prejudgment interest under section 3287(a).

Safeco objects to Glassman’s request for prejudgment interest from the 

date of the arbitration award on several bases, including that no such request 

was pursued in the trial court; that “damages” may not exceed the policy 

limits in a UIM proceeding and those limits have been exhausted here; and 

that prejudgment interest under section 3287 is not available as a form of 

damages in UIM proceedings in any event.19

19 Safeco made this latter argument below and maintains it on appeal. 

The argument is rooted in the definition of damages in section 3281 and the

contention that a claim for compensatory damages must meet this definition 

to bear prejudgment interest as an additional component of damages. (See 

e.g., Flethez, supra, 2 Cal.5th at p. 635, fn. 2; Crane, supra, 82 Cal.App.5th at 

p. 759 [elective corporate buyout provisions under Corp. Code, § 2000 do not 

give rise to damages as defined in section 3281, so no prejudgment interest 

under section 3287(a) is awardable on the fair-value amount].) Safeco urges

that a recovery by an insured in a UIM proceeding is not “damages” within 

the statutory definition. Instead, such recovery is as defined by and provided 

in the applicable policy of insurance and as addressed in Insurance Code 

section 11580.2. The arbitration award, as Safeco characterized it, “reflects 

the amount of policy benefits payable for damages caused by a third party

(the underinsured driver), pursuant to a contractually agreed-upon procedure 

to determine the amount recoverable.” The trial court did not specifically 

address the argument, deciding instead that Glassman’s damages were not 

certain or capable of being made certain without determining the more 
50

Although prejudgment interest from a later date—that of the 

arbitration award—might be said to be encompassed within an alternative 

request to a prior date, the theory of recovery for the respective dates is 

different here. Glassman’s new alternative request is not tied to her CCP 

section 998 offer. Safeco had no real opportunity to address, nor did the trial 

court have an opportunity to rule on, a request for prejudgment interest 

under section 3287(a) in this UIM action from the date of the arbitration 

award. Thus, the trial court never ruled on Safeco’s foundational legal 

arguments against the application of section 3287(a) in the UIM context, as 

summarized above. Further, Glassman does not tell us what rate of interest 

she seeks and, as we see it, there are issues of fact surrounding when the 

accrual of interest would cease—when Safeco first tendered the $1 million

policy limits or when it later did so without conditions. Thus, we are being 

asked to rule on the request in the first instance and the issue, as presented 

here, is not purely one of law on undisputed facts. 

“ ‘As a general rule, theories not raised in the trial court cannot be 

asserted for the first time on appeal; appealing parties must adhere to the 

theory (or theories) on which their cases were [decided]. This rule is based on 

fairness—it would be unfair, both to the trial court and the opposing 

litigants, to permit a change of theory on appeal . . . .’ [Citation.] ‘New 

theories of defense, just like new theories of liability, may not be asserted for 

the first time on appeal.’ [Citation.] ‘ “Appellate courts are loathe to reverse a 

foundational question whether prejudgment interest under section 3287 is 

available at all in a UIM proceeding. As we otherwise find no basis to reverse 

the trial court’s decision, we likewise need not reach the question and leave 

for another day whether prejudgment interest under section 3287 as a 

component of compensatory damages is recoverable at all in a UIM 

proceeding, and, if so, whether such interest may exceed the policy-limits cap. 
51

judgment on grounds that the opposing party did not have an opportunity to 

argue and the trial court did not have an opportunity to consider. . . . Bait 

and switch on appeal not only subjects the parties to avoidable expense, but 

also wreaks havoc on a judicial system too burdened to re[consider] cases on 

theories that could have been raised earlier. [Citation.]” (Nellie Gail Ranch 

Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.) This rule extends 

to a new theory of damages; a party cannot assert one measure of damages in 

the trial court and another measure on appeal. (Kantlehner v. Bisceglia

(1951) 102 Cal.App.2d 1, 6.) But the rule is relaxed in a reviewing court’s 

discretion when a new theory pertains only to questions of law on undisputed 

facts, which could not be altered by the presentation of additional evidence. 

(Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767; Marriage of 

Priem (2013) 214 Cal.App.4th 505, 510-511.) 

Apart from but related to the rule against a change in theory on appeal 

is the rule that parties will be held to an implied waiver of an issue on appeal 

where the error was never asserted in the trial court. Appellate courts will 

not reverse for procedural defects or erroneous rulings that could have been 

but were not raised below. (Doers, supra, 23 Cal.3d at pp. 184–185; Shaw v. 

County of Santa Cruz (2008) 170 Cal.App.4th 229, 285–286 [court will not 

consider claims of error on appeal that could have been, but were not, 

pursued below and forfeiture may result from inaction falling short of express 

waiver that demonstrates acquiescence in the error].) This again is rooted in 

the notion that it is unfair to the trial judge and the adverse party to take 

advantage of an alleged error on appeal where it could have easily been 

corrected in the trial court. (Doers, at p. 184, fn. 1; Children’s Hospital & 

Medical Ctr. v. Bonta (2002) 97 Cal.App.4th 740, 776–777.) The rule is 

justified as an invocation of the invited-error doctrine and implied waiver of 
52

the new theory in the trial court by the appellant. (Planned Protective 

Services v. Gorton (1988) 200 Cal.App.3d 1, 12–13, disapproved on another 

ground in Martin v. Szeto (2004) 32 Cal.4th 445, 451, fn. 7; but see Pierotti, 

supra, 81 Cal.App.4th at p. 28 [no implied waiver where appellant asserted

additional and alternative grounds in trial court for the prejudgment interest 

sought].)

We conclude that by never expressly articulating a request for 

prejudgment interest in the trial court under section 3287(a) from the date of 

the final arbitration award, even as an alternative theory, Glassman has 

forfeited the claim, which in any event involves more than a simple 

calculation from undisputed factual information contained within the 

properly delineated record. 

DISPOSITION

The judgment is affirmed. Respondent Safeco is entitled to costs on 

appeal by operation of California Rules of Court, rule 8.278(a)(1) and (2). 
____________________________

WILLIAMS, J.

WE CONCUR:

____________________________

GROVER, ACTING P.J.

_____________________________

LIE, J.

Glassman v. Safeco Insurance Company of America

H049825

 Judge of the Santa Clara County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California Constitution.
Trial Court: Santa Clara County Superior Court

Superior Court No.: 21CV383782

Trial Judge: The Honorable Peter H. Kirwan

Attorneys for Plaintiff and Appellant: Sherry A. Glassman,

In Propria Persona

Attorneys for Defendants and Delmer, Armstrong & Rowland, 

Respondent: Safeco Insurance LLP

Company of America

John R. Brydon

George A. Otstott

Lisa A. Pan

Glassman v. Safeco Insurance Company of America

H049825