Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 07CC05694, Corey S. Cramin, Judge.
Lee Tran & Liang, K. Luan Tran, and Daniel J. Taylor for Cross-defendant and Appellant Phuc Dang.
Law Offices of Gilbert & Nguyen and Jonathan T. Nguyen for Cross-defendant and Respondent, Son Kim Nguyen.
OPINION
IKOLA, J.
Phuc Dang (appellant) appeals a judgment against him for breach of contract. Appellant (a cross-defendant but not a plaintiff in the action) signed the purchase agreement that is at the heart of this dispute and provided a substantial portion of the funds used to purchase the business at issue, but thereafter was repaid his money and had nothing to do with the operation of the acquired business. Appellant raises four arguments: (1) there was not substantial evidence to support a finding of breach of contract, at least as to appellant; (2) there was not substantial evidence to support the amount of damages awarded by the jury; (3) the court improperly instructed the jury on the measure of damages; and (4) the attorney fee award was excessive. The jury’s finding of breach is supported by substantial evidence, but the award of damages is excessive as a matter of law. We therefore condition affirmance of respondent’s judgment against appellant on respondent’s consent to a decrease in the amount of damages from $71,000 to $4,110. In the event respondent consents to the reduced award, the trial court is directed to reconsider the amount of the attorney fee award in light of the changed result.
FACTS
Purchase and Sale Agreement
On July 18, 2005, seller Son Kim Nguyen (respondent) and buyers appellant and Doanh Nguyen (Doanh) signed a “Purchase and Sale Agreement.” We set forth in this section relevant provisions of this written contract.
Doanh Nguyen also uses the first name Matthew; we will refer to him as Doanh throughout this opinion. The ubiquitous nature of the surname “Nguyen” (among the parties, witnesses, and counsel) necessitates the use of Doanh’s first name.
For a stated purchase price of $55,573, respondent agreed to transfer ownership of KHKT Radio, a program airing on radio frequency 106.3 FM for four hours every Saturday and three hours every Sunday. The sale price included certain inventory, furniture, fixtures, equipment, goodwill, accounts receivable, a leasehold interest, and all other tangible and intangible assets used in the operation of KHKT Radio.
Respondent acknowledged receipt of $50,000 in cash payments. “The balance ($5,573.00) of the Purchase Price shall be retained by Buyer as payment in advance of Seller’s program(s) to be broadcast on KHKT Radio. Seller and Buyer hereby mutually agree that (a) Buyer shall reserve maximum three (3) minutes per hour of KHKT Radio air-time for Seller’s use; (b) and shall be billed at Buyer’s current cost. This term shall survive the termination of this Agreement and shall continue in perpetuity; (c) all fees due and payable to Buyer for Seller’s program(s) shall be deducted from the balance ($5,573.00) of the Purchase Price until exhausted.”
Included among buyer’s covenants was the following: “Buyer shall grant Seller the right in perpetuity to purchase maximum three (3) minutes for each hour in operation at Buyer’s current cost. This term shall survive the termination of this Agreement and shall continue in perpetuity.” Seller warranted: “To the best of Seller’s knowledge, the purchase and sale will not conflict with or violate any agreement or law to which Seller or the Business is subject....”
Also included in the agreement was an integration clause: “This Agreement constitutes the entire agreement between Buyer and Seller concerning their rights and obligations with respect to the sale and purchase of the business. Any agreements or representations respecting the business or its sale to Buyer not expressly set forth in this Agreement shall have no effect, except for a subsequent written modification signed by the party to be charged.”
Section 16.07 of the agreement was entitled “Assignment.” The only language after this heading was the following: “This section has been intentionally deleted.”
Finally, an attorney fees provision was included: “If Buyer or Seller brings any legal action... regarding any provision of this agreement, the prevailing party in the litigation... shall be entitled to recover reasonable attorneys’ fees from the other party, in addition to any other relief that may be granted.”
Pleadings
Allison Dao and Doanh sued respondent for breach of contract, intentional misrepresentation, negligent misrepresentation, intentional interference with business relationship, and rescission of the contract. The plaintiffs (Dao and Doanh) alleged appellant assigned all causes of action he had as a party to the agreement to Dao on May 4, 2007.
Allison Dao is known professionally as “Mong Lan.” Although she is sometimes referred to as “Mong Lan” in the testimony of various witnesses, we will refer to her as “Dao” throughout this opinion.
The operative complaint alleged respondent falsely represented (orally and in the agreement) “that he had the legal right to ‘sublease’ by purchase agreement the radio program to plaintiffs.” The operative complaint further alleged respondent breached the agreement in or after February 2007 because his purported “sublease” of air time to plaintiffs for broadcasting KHKT Radio was expressly prohibited by the underlying lease with the radio station and because respondent, contrary to an oral understanding subsequent to the written agreement, “intentionally allowed Southern California Edison to turn off the electricity to the leased premises where plaintiff’s radio station program was produced and broadcasted, resulting in plaintiff’s temporary inability to broadcast their scheduled radio show.”
Respondent filed a cross-complaint for breach of contract against Dao, Doanh, and appellant. Respondent alleged the buyers of KHKT Radio “failed to reserve and broadcast cross-complainant’s advertisements as agreed.” Such alleged breaches occurred on July 18, 2005 (the effective date of the contract) and subsequently thereafter.
Evidence at Trial
Dao began working in the radio industry in 1995. For 10 years, she gained experience both as an on-air personality and in selling advertising time. In April 2005, her employment with a particular radio program ended.
Shortly thereafter, Doanh assisted Dao in renting and setting up a studio for Dao to advance her broadcasting career. The studio was located at 10240 Westminster Avenue, Suite 206, in Garden Grove, California.
Respondent’s studio, used for purposes of his KHKT Radio program, was next door in Suite 207. KHKT Radio broadcasted for seven hours each weekend. KHKT Radio was financially viable and respondent had no particular interest in selling the business. Dao knew respondent was receiving his air time to broadcast his programs from a radio station known as KALI-FM 106.3. From approximately 2003 to 2005, Dao had a business relationship with respondent, in that she supplied advertisers to his radio program in exchange for commissions. This relationship continued through June 2005.
Dao and respondent began discussing the idea of Dao buying KHKT Radio. Respondent agreed to sell after Dao agreed to his terms. One of respondent’s demands was expressed in the contract (the provisions pertaining to a maximum three minutes per hour being reserved for respondent’s use): respondent wanted to make sure he could advertise during KHKT Radio air time at cost, especially to support his wife’s dental business. Respondent’s wife is a dentist at an office known as Civic Dental.
Dao asked her husband Raymond and friend Doanh to come up with the necessary money to complete the purchase. But, ultimately, Doanh and appellant (Dao’s brother-in-law) signed the document because, according to Dao, “I had marital difficulties with my husband at that time and because I [did not] have the money to contribute at that time.” Doanh and appellant together contributed $50,000 of the purchase price. Appellant testified he agreed to provide $25,000 and sign the contract because Dao asked him to do so. Appellant considered the $25,000 to be a loan to his sister-in-law. The contract was initially drafted by respondent and some changes to the agreement were negotiated by the parties. Dao paid appellant back his $25,000 over the following year after acquiring KHKT Radio.
Appellant had no role in managing or operating KHKT Radio and knows nothing about broadcasting. But he testified on cross-examination that he understands the concept of a contract and that, by “putting [his] name and signature to this contract, [he] agree[d] to do what the contract says....”
Dao and Doanh operated KHKT Radio from 2005 to 2007. KHKT Radio’s electricity account remained in the name of respondent or respondent’s wife. Respondent testified he was helping Dao out in the beginning, but did not want his name to remain on KHKT Radio contracts forever.
In response to being contacted by the electric company with regard to an unpaid bill, respondent told the electric company he and his wife were no longer the owners of KHKT Radio. On Friday, February 16, 2007, the electricity at KHKT Radio was turned off. The upcoming weekend was the Vietnamese New Year, and a very important and lucrative weekend for advertising purposes. KHKT Radio was able to proceed with its programming that weekend because it could connect its equipment in Suite 207 to the electrical outlets in Suite 206.
The following Monday, Dao called a representative of KALI-FM and requested them to transfer the air time contract into her name. KALI-FM allowed KHKT Radio to continue broadcasting through March 2007, and offered a new contract for air time in the same time slot at the same rate. KALI-FM demanded a larger deposit of approximately $22,000; respondent’s old deposit (from long ago) was still on file but was insufficient to cover the standard deposit for a new buyer of air time. The old deposit amounted to $9,000. KALI-FM cut off KHKT Radio’s air time on March 31, 2007. Apparently, Dao could not afford to pay the higher deposit and therefore refused to do so.
Respondent left five Civic Dental advertisements with Dao when he sold KHKT Radio. Had KHKT Radio aired three full minutes of Civic Dental advertisements for the entire period it was operated by Dao, 1,818 minutes of advertisements would have aired. Only about 164 minutes of Civic Dental advertising time was actually aired. Respondent was aware Dao was not airing all of the advertisements he was entitled to, but he “just figured that’s something minor so [he] just overlooked that.” Beyond the fact that approximately 164 minutes of Civic Dental advertisements did air, there is no evidence in the record suggesting respondent actually requested KHKT Radio to play Civic Dental advertisements on any particular occasion.
From 2005 to 2007, Civic Dental advertisements aired on other radio stations. Respondent testified this occurred because “[i]t’s always advertised on other air station” and “because [of] the advertisement demand that Civic Dental has.” Respondent did not testify how many advertisements aired on other stations during this time period or testify he would not have secured advertising time on these other stations had KHKT Radio run his advertisements. Civic Dental paid, on average, $50 to other stations for each minute of air time.
Had three minutes every hour been used for Civic Dental advertising, KHKT Radio’s new owners would have played an additional 1,654 minutes of Civic Dental advertising while they operated the program. At $8.92 per minute (the cost of air time to KHKT Radio at the time it was purchased from respondent), it should have cost respondent $14,753.68 to air the 1,654 minutes on KHKT Radio. On the other hand, 1,654 minutes multiplied by $50 is $82,700. The 164 minutes of air time given to Civic Dental multiplied by $8.92 amounts to only $1,462.88.
Judgment
The jury returned a verdict in favor of respondent. The special verdict form indicates a contract was entered by all parties, and that Dao, Doanh, and appellant failed to “do all, or substantially all, of the significant things that the contract required them to do.” Respondent did not make any false representations of important facts. Respondent “d[id] all, or substantially all, of the significant things that the contract required him to do.” The jury awarded respondent $71,000 in damages, consisting of $13,110 in past loss and $57,890 in future loss.
In an amended judgment, the court subsequently awarded respondent $14,912.06 in costs and $99,263.40 in attorney fees against Dao, Doanh, and appellant. Thus, pursuant to the amended judgment, Dao, Doanh, and appellant are jointly liable for the total amount of $185,175.46 to respondent.
DISCUSSION
There are four distinct issues to analyze in this appeal. First, is there substantial evidence to support the jury’s finding that appellant breached the contract? Second, is there substantial evidence to support the jury’s damage award ($71,000)? Third, did prejudicial error occur with regard to jury instructions on damages? And fourth, did the court abuse its discretion when it awarded $99,263.40 in attorney fees to respondent against appellant?
We grant respondent’s motion to augment the record on appeal.
We shall examine each issue under appropriate standards of review. We interpret the meaning of a contract de novo, unless extrinsic evidence is admitted to determine the meaning of ambiguous provisions, in which case credibility determinations are evaluated under the substantial evidence test. (California National Bank v. Woodbridge Plaza LLC (2008) 164 Cal.App.4th 137, 142.) We review the jury’s determination of whether a breach occurred and the amount of damages sustained under the deferential substantial evidence standard. “Under the substantial evidence standard of review, ‘we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.’” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.)
“‘“[P]arties have the ‘right to have the jury instructed as to the law applicable to all their theories of the case which were supported by the pleadings and the evidence, whether or not that evidence was considered persuasive by the trial court.’ [Citation.] ‘A reviewing court must review the evidence most favorable to the contention that the requested instruction is applicable since the parties are entitled to an instruction thereon if the evidence so viewed could establish the elements of the theory presented.’”’” (Ayala v. Arroyo Vista Family Health Center (2008) 160 Cal.App.4th 1350, 1358.)
Attorney fee awards are reviewed for an abuse of discretion by the trial court. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094-1095.)
Substantial Evidence of Breach
A party alleging breach of contract must establish the existence of a contract, his or her own performance, the other party’s breach, and damages suffered by the complaining party. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) There is substantial evidence that the Purchase and Sale Agreement was breached by the buyers in this case. The jury was free to infer respondent was not provided with sufficient advertising time on KHKT Radio to meet the $5,573 deposit payment obligation. It is clear Dao, Doanh, and appellant no longer operate KHKT Radio and have not returned the remainder of the $5,573 deposit to respondent.
There is no merit to the suggestion appellant should not be liable because he did not operate the radio program or even intend to do so at the time the parties entered their contract. Appellant admits he signed the contract. “An offeree that signs and returns a written contract cannot avoid liability by testimony that this was done with no intent to be bound. As Judge Easterbrook put it, ‘You can’t escape contractual obligation by signing with your fingers crossed behind your back, even if that clearly shows your intent not to be bound.’” (Farnsworth, Contracts (3d ed. 2004) The Bargaining Process: Offer and Acceptance, § 3.13, p. 270.) Appellant’s purported assignment of his causes of action to Dao immediately prior to the filing of this action did not extinguish appellant’s liability to respondent for the buyers’ obligations under the contract.
Substantial Evidence Supporting Damage Award
“For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” (Civ. Code, § 3300.) “Whatever its measure in a given case, it is fundamental that ‘damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery.’” (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 989; see Civ. Code, § 3301 [“No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin”].)
The jury awarded $71,000 in damages to respondent. Recall the contract contemplated a $5,573 “deposit” to be used to offset the cost of running respondent’s chosen advertisements. According to the numerical evidence put forth by respondent at trial, about $1,463 of his deposit was used up by advertisements that were run. This left $4,110 of unused deposit. Appellant concedes “the remaining balance of the $5,573 deposit is a legitimate ascertainable claim, if there [was] a breach (which there was not); the jury’s award of $71,000 grossly exceeds this amount.” There was one other easily ascertainable amount — respondent never recovered the $9,000 deposit with KALI-FM. But appellant does not concede this $9,000 can properly be deemed damages caused by appellant. Assuming the jury awarded the $4,110 and $9,000 as damages, the remaining $57,890 in damages awarded can only be attributed to alleged damages caused by KHKT Radio failing to air additional Civic Dental advertisements. This is at least a plausible explanation of the jury’s award of $13,110 in “past” damages and $57,890 in “future” damages.
We agree with appellant that respondent did not establish he was entitled to the $9,000 deposit with KALI-FM as damages. There is no evidence in the record indicating KALI-FM seized the deposit to pay for KHKT Radio bills; it may still be that the deposit could be recovered by respondent from KALI-FM if it is really his money.
More fundamentally, there is nothing in the contract providing for the return of the KALI-FM deposit to respondent (there is no reference at all to such deposit). The contract is most reasonably interpreted to include the deposit as part of the assets of KHKT Radio sold by respondent, as respondent sold to appellant all “other tangible assets being used by Seller to operate KHKT Radio” and all “other intangible assets” without explicit limitation as to the KALI-FM deposit. Respondent testified he sold KHKT Radio on the condition his deposit should be repaid, as noted in a pre-contractual e-mail. A pre-contractual e-mail before the court (trial exhibit No. 104) suggests the parties did discuss whether the buyers would be required to pay respondent $9,000 to compensate for the deposit in addition to a purchase price of $50,000, but the e-mail suggests this was a point of contention rather than an agreed term. There is insufficient evidence in the record to call into question the intent of the parties as expressed in the clear language of the contract, including the integration clause. (Code Civ. Proc., § 1856, subd. (b).)
Even though the jury’s verdict appears to suggest the $9,000 might have been awarded to respondent, we are reviewing the entire damage award, not our surmise as to how the jury reached its award. Thus, we would not question the jury’s award if it could be explained without resort to the KALI-FM deposit.
Although it is unclear precisely how the jury arrived at $71,000, the only possible basis for the bulk of the award were findings that KHKT Radio should have been playing more Civic Dental advertisements and the failure to do so damaged respondent. In fact, it appears the jury concluded KHKT Radio was obligated under the purchase contract to air three minutes of respondent’s advertisements for every hour of air time, without regard to whether respondent: (1) insisted on the use of all three minutes every hour; (2) provided specific instructions to KHKT Radio on what to air any particular hour; or (3) objected when advertisements did not air every hour. Respondent’s testimony does not establish he communicated to Dao or anyone else a desire that Civic Dental advertisements air for three minutes every single hour KHKT Radio broadcasted.
In essence, in awarding damages, the jury was permitted to interpret the contract. The buyers of KHKT Radio promised to “grant Seller the right in perpetuity to purchase maximum three (3) minutes for each hour in operation at Buyer’s current cost. This term shall survive the termination of this Agreement and shall continue in perpetuity.” The $5,573 difference between the KHKT Radio purchase price and the amount of cash delivered to respondent would serve as a deposit on future utilizations of this contract right by respondent. The jury apparently agreed with respondent in finding this meant KHKT Radio should air three minutes of advertisements for respondent in perpetuity and unless instructed otherwise. Was its interpretation reasonable?
We do not think so. The contract clearly and unambiguously provided respondent with the option of purchasing three minutes of advertising per KHKT Radio broadcast hour. The contract did not obligate the buyers of KHKT Radio to run three minutes of advertising per broadcast hour unless respondent exercised his right to demand and purchase such time. Respondent had a right to purchase the time, not an expectation that KHKT Radio would air his advertisements every broadcast hour in the absence of specific instructions. It seems clear the jury either misinterpreted the contract or reached a factual conclusion unsupported by substantial evidence — that respondent did instruct KHKT Radio to play his advertisements for three minutes every hour. Evidence that respondent advertised on other stations (for an unspecified and undocumented number of hours) for approximately $50 per minute does not support a damages award.
Put another way, “[c]ontract damages are generally limited to those within the contemplation of the parties when the contract was entered into or at least reasonably foreseeable by them at that time; consequential damages beyond the expectations of the parties are not recoverable.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515.) It is not reasonable to conclude the buyers contemplated being held liable for not playing respondent’s advertisements even in the absence of respondent asking for those advertisements to be played. Were the situation reversed, it would also be unreasonable to conclude respondent actually expected to be charged for advertisements run every hour of air time even if he did not ask for such services. Damages should have been limited to those consistent with evidence showing respondent asked for advertisements to be played beyond those actually played. There was no such evidence.
In his postjudgment motions, appellant argued excessive damages were awarded and requested the court grant a new trial on the issue of damages, unless respondent consented “to a reduction... of damages in an amount determined by the court.” This disposition is appropriate and we therefore condition affirmance of respondent’s money judgment against appellant on respondent’s consent to a decrease in the amount of damages from $71,000 to $4,110, an amount representing the unpaid portion of the purchase price held in deposit by the buyers of KHKT Radio. (See Cal. Rules of Court, rule 8.264(d).)
Jury Instructions
Next, appellant claims the court erred by instructing the jury with CACI No. 1924, an instruction entitled “Damages — Benefit-of-the-Bargain Rule.” This instruction is included within the group of instructions pertaining to allegations of fraud or deceit, and is based on Civil Code sections 1709 and 3333. (Com. to CACI No. 1924 (2008) p. 1113.) According to appellant, the jury was misled in its contract damages calculations by the inclusion of this instruction; respondent did not plead fraud and was therefore only entitled to contract damages.
But nothing in the record proves this instruction was actually provided by the court! The court rejected respondent’s request to include this instruction. The reporter’s transcript does not include the reading of the jury instructions. The “clean copies of jury instructions as given to the jury” in the clerk’s transcript do not include CACI No. 1924. Appellant nevertheless claims the instruction actually was given to the jury, and that respondent has not directly denied this fact either at the trial court (in his opposition to appellant’s motion for judgment notwithstanding the verdict) or here on appeal. But it is appellant’s duty to “provide this court with a record adequate to evaluate” his argument. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) We will not assume the court improperly instructed the jury simply because respondent has not specifically denied this fact.
Appellant also suggests “[t]he fact that the record does not adequately reflect [the instruction] compounds the trial court’s error.” By doing so, appellant abdicates his own duty to preserve and present before this court an adequate record. It does not appear appellant took any steps to rectify allegedly improper omissions from the clerk’s and reporter’s transcripts.
Attorney Fees Award
Finally, appellant claims the court abused its discretion in adding $99,263.40 in attorney fees to the judgment enforceable against appellant. Respondent’s contract claim against Dao, Doanh, and appellant was a compulsory cross-complaint under Code of Civil Procedure section 426.30, subdivision (a). The crux of the argument is appellant was merely a cross-defendant and it is unfair to impose the entire attorney fee award on him when much of the case was related to the breach of contract claims brought by the plaintiffs (Dao and Doanh) against respondent. As the court noted at the hearing on the motion, “[t]he opposing papers didn’t attack any of the specific itemized bills that were attached as not reasonable or related to the litigation.” Instead, appellant requested the court to force respondent to segregate fees incurred on the issues raised by the complaint from issues raised by the cross-complaint.
Under the facts of the case, however, appellant is essentially a guarantor of the attorney fee clause in the contract with regard to the claims brought by Dao. Appellant was a signatory to the contract at the heart of the dispute between the parties. Appellant was not a plaintiff only because he purported to assign his right to sue respondent to Dao. The only benefit assigned to Dao was the right to sue respondent; with that benefit necessarily came the obligation to pay attorney fees if the claims failed. (See California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 607-608 [assignee must pay attorney fees because assignee would have been able to collect such fees had it prevailed].)
But such purported assignment did not extinguish the duties independently owed by appellant to respondent. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 730, p. 815 [“Where the subject matter of the assignment (e.g., a bilateral contract) involves reciprocal rights and duties, the assignor may transfer the benefits... but cannot escape the burden of his or her obligation by a mere assignment”]; Civ. Code, § 1457 [“The burden of an obligation may be transferred with the consent of the party entitled to its benefit, but not otherwise”].) Absent a novation or release, appellant “stood in the nature of a surety for [Dao] for the performance of the obligation.” (Cutting Packing Co. v. Packers’ Exch. (1890) 86 Cal. 574, 577.)
Appellant identifies no authority which precludes holding a cross-defendant jointly liable with plaintiffs for the entire contractually provided attorney fees awarded to the prevailing defendant/cross-complainant in the action. We decline to so hold under the circumstances presented here.
We note, however, that the attorney fee clause in the Purchase and Sale Agreement provides for the recovery of “reasonable attorneys’ fees” by the prevailing party. “‘The value of legal services performed in a case is a matter in which the trial court has its own expertise.... The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096, italics added.) Further, “The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) On this record we do not find any abuse of discretion by the trial court in setting the amount of the attorney fee award. But in the unusual posture of this case, where respondent may decide to consent to a reduction in damages to avoid a new trial, it is appropriate under that circumstance for the trial judge to be given the opportunity to reevaluate the attorney fee award in light of the reduced judgment. We are not concluding the trial court’s award was either too high or too low. The law does not require attorney fees to be proportionate to the amount of damages recovered. (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1507-1508.) The amount of damages is nevertheless a factor to be considered in determining the fee award. Accordingly, in the event respondent consents to the remittitur of damages, the trial court should be given the opportunity to consider the reduced judgment, together with all other factors bearing on the amount of the fee award, and determine that amount anew.
DISPOSITION
The judgment is reversed and the case remanded for a new trial, unless, before the decision is final under California Rules of Court, rule 8.264(b), respondent Son Kim Nguyen consents to a remittitur of the damage award to $4,110, together with an attorney fee award to be determined by the trial court upon remand, and timely serves and files notice of such consent pursuant to the procedures specified in California Rules of Court, rule 8.264(d). If respondent timely consents to the remittitur, the judgment is affirmed as modified by the remittitur and remanded to the trial court with directions to hold a new hearing on the amount of the attorney fee award. In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: RYLAARSDAM, ACTING P. J.FYBEL, J.