Opinion
B163050
7-29-2003
BRENDA PEREZ, Plaintiff and Respondent, v. TUTOR-SALIBA CORPORATION, Defendant and Appellant.
Castle & Lax, Nomi L. Castle and Matthew J. Luce for Defendant and Appellant. Fagelbaum & Heller, Phillip Heller, and Jerold Fagelbaum for Plaintiff and Respondent.
INTRODUCTION
Defendant appeals from an award of attorney fees and costs made after the reversal of judgment for plaintiff in one cause of action required remand for rehearing and redetermination of an earlier attorney fee and cost award. Although the trial court, on remand and rehearing, determined attorney fees in an amount slightly higher than the earlier attorney fee award, we conclude that the trial court properly considered the result and the degree of success achieved by plaintiffs attorneys and properly considered apportionment of time plaintiffs counsel spent on unsuccessful claims. We find no abuse of discretion in the award of attorney fees and costs. We also conclude that defendant has not shown error in the trial courts determination of costs incurred before defendants settlement offer pursuant to Code of Civil Procedure section 998. We also find, however, that this courts previous decision reversing the earlier attorney fee award and remanding it for rehearing and redetermination was not a modification of the earlier attorney fee award; this court reversed and remanded for a new hearing, redetermination of issues, and new exercise of the trial courts discretion. Therefore interest should commence to accrue on the newly determined judgment awarding attorney fees and costs from the date of the more recent modified judgment, not from the date of the original judgment. The more recent judgment is be so modified, but is otherwise affirmed.
FACTUAL AND PROCEDURAL HISTORY
On December 9, 1997, plaintiff Brenda Perez filed the operative complaint for damages against Tutor-Saliba and Craig S. Wiberg. The complaint alleged four causes of action for violation of the California Fair Employment and Housing Act ("FEHA") because of sexual, religious, and national origin harassment against both defendants and for retaliation for opposing harassment against Tutor-Saliba only. The complaint alleged six other causes of action against both defendants for wrongful termination in violation of public policy, violation of Civil Code section 51.7, sexual battery, intentional infliction of emotional distress, and negligent infliction of emotional distress ("NIED"), and against Tutor-Saliba for negligent retention and supervision.
On March 10, 1999, the trial court granted defense motions for summary adjudication on FEHA causes of action for religious and national origin harassment and for retaliation, and for violation of Civil Code section 51.7.
On April 13, 1999, Perez served a Code of Civil Procedure section 998 offer to have judgment entered in her favor for $ 4.5 million, which sum would include Perezs costs. Defendants responded with a joint offer to have judgment entered in Perezs favor for $ 600,000, which sum would include Perezs attorney fees, costs, and interest. Perez did not accept the offer.
After a jury trial, a judgment on special verdict was entered on December 30, 1999. The jury found that Perez suffered hostile environmental sexual harassment, and as a result suffered $ 25,000 in economic damages and $ 10,000 in non-economic damages; that Wiberg committed sexual battery on Perez, causing Perez to suffer resulting damages of $ 2,500; found that Tutor-Saliba was negligent in its supervision and retention of Wiberg, causing Perez to suffer $ 55,000 in economic damages and $ 55,000 in non-economic damages; that Wiberg intentionally caused Perez to suffer emotional distress, causing her to suffer $ 25,000 in emotional distress damages; and that both Wiberg and Tutor-Saliba negligently caused Perez to suffer emotional distress, with Wiberg causing Perez to suffer $ 25,000 in emotional distress damages and with Tutor-Saliba causing Perez to suffer $ 64,000 in emotional distress damages. The verdict found that Wiberg engaged in malicious or oppressive conduct on which the jury found liability for sexual harassment and for intentional infliction of emotional distress, and assessed punitive damages of $ 15,000 against Wiberg. The judgment therefore awarded Perez recovery of $ 67,500 from Wiberg, recovery of $ 174,000 from Tutor-Saliba, and recovery of $ 35,000 from Wiberg and Tutor-Saliba jointly and severally.
On December 2, 1999, Perez filed a motion for attorney fees of $ 1,491,256.88 and costs of $ 20,751.91. Defendants filed opposition and a motion to tax costs. A December 30, 1999, judgment ordered attorney fees and costs awarded to Perez as the prevailing party in the amount of $ 720,751.91.
In Perez v. Tutor-Saliba (Jun. 13, 2001, B137595) [nonpub. opn.] ("Perez I"), this court reversed that part of the judgment awarding Perez damages for NIED.
Plaintiff and defendants appealed the judgment. In Perez v. Tutor-Saliba (Jan. 17, 2002, B139551, B138733) [nonpub. opn.] ("Perez II"), this court held that the Perez I decision required reversal of the attorney fee award and remanded the matter for redetermination of that award.
After remittitur of Perez II issued, Tutor-Saliba filed a peremptory challenge (Code Civ. Proc., § 170.6(2)) to disqualify Judge Margaret M. Hay. After Judge Hay denied the peremptory challenge as untimely, Tutor-Saliba filed a petition for extraordinary relief. This court issued an order indicating its intention to grant the petition and issue a peremptory writ of mandate directing the trial court to accept the peremptory challenge and to transfer the matter to a different court, and conferring upon the trial court power and jurisdiction to change and correct its order. On March 7, 2002, Judge Hay changed the earlier denial of the peremptory challenge, accepted the challenge and transferred the case to Judge Tracy Moreno.
On April 5, 2002, Perez moved to fix $ 1,193,005.50 in attorney fees as costs pursuant to Government Code section 1296 and as provided by Code of Civil Procedure section 1033.5, subdivision (a)(10)(A). Perezs motion incorporated Perezs attorneys earlier attorney fee motion filed December 2, 1999, which also sought $ 1,193,005.50 in attorney fees, and sought an increase in those fees through application of a 1.25 multiplier. The motion also argued that Perez should be awarded costs, including attorney fees, despite her rejection of defendants $ 600,000 Code of Civil Procedure section 998 settlement offer.
Unless otherwise specified, statutes in this opinion will refer to the Government Code.
On May 13, 2002, the trial court issued a written ruling. The judge took judicial notice of 29 volumes of the court file, the number and nature of noticed motions therein, the trial courts minute orders, the trial-related documents, the jurys verdict, the judgment, and the post-trial filings. The trial court found that the record warranted an attorney fee award, granted Perezs motion, and fixed attorney fees at $ 741,500.
Although the May 13, 2002, minute order states a figure of $ 743,500, Perezs respondents brief concedes that an arithmetical error requires correction of this amount to $ 741,500, a figure this opinion adopts: see footnotes 3 and 4, ante.
The order explained the basis for its findings. Identifying section 12965, subdivision (b) as the basis for the attorney fee award, the trial court found Perez the prevailing party in her sexual harassment claim and concluded that policies underlying the FEHA merited the exercise of the courts discretion in awarding fees. The order stated: "The misconduct suffered by plaintiff was significant, and in the case of individual defendant Craig Wiberg, egregious."
The trial court found that reversal of the NIED judgment did not necessitate a reduction in total fees awarded. The order stated: "This Court declines to reduce the attorney fee award made by the trial court on a pro rata basis. This Court finds that the issues presented in the cause of action for negligent infliction of emotional distress were inextricably intertwined with those issues on which she prevailed."
The trial court stated that it independently reviewed papers in support, opposition, and reply to the attorney fee motion, and using the lodestar method made its own award on a "de novo" calculation of what was reasonable and necessary. The order stated:
1. The court found that the issues presented were substantial and complex, and considered the nature of the litigation "very difficult" and found that, as reflected in the voluminous case file, the litigation was protracted.
2. The case was "fiercely contested at every stage . . . necessitating considerably more attorney hours than might ordinarily be expected."
3. Perezs attorney demonstrated "more than the ordinary skill" in prosecuting the action, dedicated "a great deal of attention" prosecuting Perezs case, and submitted "articulate, concise and well-researched" filings.
4. Perez was successful in vindicating the public policy against sexual harassment, and against negligent retention of employees who conduct persistent campaigns of harassment.
5. Because Perez, particularly in discovery, did not prevail on all issues, the court exercised its discretion to reduce the total hours claimed and reduced hourly rates claimed to an amount the court felt was reasonable under all circumstances in the case.
The court made the following findings with regard to reasonable hours and rates:
1. The court allotted 1299 hours to lead attorneys for plaintiff, Fagelbaum and Heller, as reasonable and necessary. The court found $ 250 per hour to be their reasonable rate, for a total of $ 324,750 each, or a total of $ 649,500.
Although the May 13, 2002, order recites a figure of $ 325,750 each, for a total of $ 651,500, as Perez observes, multiplying 1,299 hours by $ 250 an hour equals $ 324,750 each for a total of $ 649,500. We adopt the corrected figures, which also requires correction of the total attorney fees awarded: see footnote 4, post.
2. The court allotted plaintiffs attorney Lee Cotugno 325 hours at $ 200 per hour, for a total of $ 65,000.
3. The court allotted plaintiffs attorney Marilyn Gates 150 hours at $ 125 per hour for a total of $ 18,750.
4. The court allotted plaintiffs paralegal Greg Gutierrez 110 hours at $ 75 per hour for a total of $ 8,250.
The court declined to use a multiplier to increase these figures. Attorney fees totaled $ 741,500, which amount included fees incurred before and after defendants Code of Civil Procedure section 998 offer. The court found that at least $ 450,000 of this figure was incurred before the section 998 offer.
As reflected in footnote 2, ante, although the May 13 2002, order indicates that fees total $ 743,500, as respondent concedes the corrected total fees equal $ 741,500.
A modified judgment filed on August 26, 2002, ordered that Perez recover $ 42,500 from Wiberg, $ 110,000 from Tutor-Saliba, and $ 35,000 jointly and severally from Wiberg and Tutor-Saliba, and awarded Perez, as prevailing party, $ 741,500 attorney fees and $ 20,751.91 in costs, with interest at 10 percent per annum from the December 30, 1999, entry of this judgment.
Perez served a notice of entry of the modified judgment on August 30, 2002. Tutor-Saliba filed a timely notice of appeal.
ISSUES
Tutor-Saliba claims on appeal that the trial court:
1. Abused its discretion by increasing the attorney fee award on remand, by erroneously failing to consider Perezs lack of success, and by failing to consider apportionment of time Perezs counsel spent on unsuccessful claims;
2. Erroneously awarded interest from the date of the original judgment; and
3. Abused its discretion by making insufficient findings regarding costs plaintiff incurred for services before defendants offer to compromise pursuant to Code of Civil Procedure section 998.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Making the Attorney Fee Award
a. The Standard of Review of an FEHA Attorney Fee Award
Section 12965, subdivision (b) states that "the court, in its discretion, may award the prevailing party reasonable attorneys fees and costs[.]" In determining the fee award, the trial court first determines a "lodestar" figure, defined as the product of the number of hours worked multiplied by a reasonable fee per hour. (Greene v. Dillingham Construction N.A., Inc. (2002) 101 Cal.App.4th 418, 422.) "Depending on the circumstances, consideration may also be given to the attorneys experience, the difficulty of the issues presented, the risk incurred by the attorneys in litigating the case, the quality of work performed by the attorneys, and the result the attorneys achieved." (Flannery v. Prentice (2001) 26 Cal.4th 572, 584.) After the court has calculated the lodestar, it shall consider whether the total award, under all circumstances of the case, is more than a reasonable amount, and if it so finds, shall reduce the award to a reasonable figure. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096, 997 P.2d 511.)
This court reviews the trial courts attorney fee award according to an abuse of discretion standard. (Greene v. Dillingham Construction N.A., Inc., supra, 101 Cal.App.4th at p. 422.) "An experienced trial judge is best qualified to decide the value of an attorneys services in a given matter, and on appeal we will not reverse that decision unless it is clearly wrong. [Citation.]" (Padilla v. McClellan (2001) 93 Cal.App.4th 1100, 1107.)
b. The Trial Court Did Not Disregard This Courts Directions in Perez II
Tutor-Saliba claims that in determining an attorney fee award that was higher than the award which this court reversed in Perez II, the trial court disregarded this courts directions in Perez II.
In Perez I, this court affirmed the judgment for Perez in her cause of action against Tutor-Saliba for negligent retention and supervision, but reversed the judgment as to Perezs cause of action against Wiberg and Tutor-Saliba for NIED. The jury had awarded $ 64,000 in damages for NIED caused by Tutor-Saliba and had awarded $ 25,000 in damages for NIED caused by Wiberg. Reversal of these parts of the judgment reduced Perezs $ 276,500 judgment by $ 89,000 to $ 186,500. Perez II stated that its reduction in the judgment had two effects, one of which was that it could affect the determination of the amount of attorney fees. The Perez II opinion explained that in determining the value of legal services rendered in a case before it, the trial court should consider several factors, one of which was the "degree of success." Perez II stated: "in arriving at an award of reasonable attorney fees, the trial court should consider whether attorney time spent on unsuccessful claims should be compensated." (Perez II, supra, B139551, B138733.) The opinion further stated that the partial reversal in Perez I and reduction of the judgment against Wiberg and Tutor-Saliba for NIED "may alter the trial courts assessment of the `degree of success Perezs attorneys achieved. It may also reduce the hours of attorney services to be compensated, insofar as Perez I meant that defendants, not Perez, prevailed on the negligent infliction of emotional distress cause of action." (Ibid., italics added.) Perez II therefore remanded for reconsideration of the amount of reasonable attorney fees in light of the reversal in Perez I.
Tutor-Saliba argues that on remand, the trial court disregarded this courts instructions in Perez II to reduce the attorney fee award, and instead re-determined the attorney fee award de novo. As Perez observes, however, Tutor-Salibas peremptory challenge to Judge Hay and the reassignment of the matter to Judge Moreno who had not hitherto presided in the case, made a de novo redetermination of the award the correct, and therefore the inevitable, procedure. Moreover, Perez II did not compel reduction of the attorney fee award. Perez II remanded for reconsideration and redetermination, not for reduction, of the attorney fee award. The standard of review remains whether the trial court abused its discretion in making the attorney fee award.
c. The Trial Court Did Not Fail to Consider the Result and the "Degree of
Success"
Achieved by Perezs Attorneys
Tutor-Saliba makes several arguments which, it claims, show that in determining the attorney fee award, the trial court erroneously failed to consider Perezs lack of success.
The trial court has its own expertise in determining the value of legal services performed. Calculation of the "lodestar" figure, by multiplying the number of hours reasonably expended by the reasonable hourly rate, is fundamental to determining the attorney fee award. The trial court may then raise or lower the lodestar figure by considering factors specific to the case. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at pp. 1095-1096.) Section 12965 fees are subject to this rule. The trial court may consider "the attorneys experience, the difficulty of the issues presented, the risk incurred by the attorneys in litigating the case, the quality of work performed by the attorneys, and the result the attorneys achieved." (Flannery v. Prentice, supra, 26 Cal.4th at p. 584.)
The trial courts consideration of these factors is discretionary. (Flannery v. Prentice, supra, 26 Cal.4th at p. 584.) The factors a court may consider are not fixed. California law allows the trial court great, even permissive, flexibility in determining which elements will increase or reduce the award. (Hammond v. Agran (2002) 99 Cal.App.4th 115, 135; Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 40-43.) Thus the trial court should select relevant factors, but is not required to apply all factors in every case.
Furthermore, several findings in the attorney fee award reflect the trial courts consideration of the result achieved by Perezs attorneys. The trial court found that the litigation presented "substantial and complex" issues. The trial court considered the nature of the litigation "very difficult" and described it as protracted and "fiercely contested at every stage in the proceedings, necessitating considerably more attorney hours than might ordinarily be expected." Perezs attorneys demonstrated "more than the ordinary skill in prosecuting this action." Regarding the result of Perezs attorneys efforts, the trial court found that Perez "was successful in vindicating the public policy against sexual harassment, and also against negligent retention of employees who conduct persistent campaigns of harassment."
As evidence of Perezs attorneys lack of success, defendants cite the reversal of the NIED cause of action in Perez II. Elsewhere the trial courts order specifically addressed this issue: "Although the portion of the judgment awarding damages under a theory of negligent infliction of emotional distress has been reversed, this does not necessitate a diminution of the total fees awarded, and this Court declines to reduce the attorney fee award made by the trial court on a pro rata basis. This Court finds that the issues presented in the cause of action for negligent infliction of emotional distress were inextricably intertwined with those issues on which she prevailed." There was a strong relationship between FEHA and non-FEHA causes of action (hostile environmental sexual harassment, sexual battery, negligent supervision and retention of Wiberg, and Wibergs intentional infliction of emotional distress) and the invalid NIED cause of action. It was within the trial courts discretion to find it was not possible to allocate fees between successful and unsuccessful claims because the claims were based on the same facts. "Where a lawsuit consists of related claims, and the plaintiff has won substantial relief, a trial court has discretion to award all or substantially all of the plaintiffs fees even if the court did not adopt each contention raised." (Downey Cares v. Downey Community Development Com. (1987) 196 Cal. App. 3d 983, 997, 242 Cal. Rptr. 272.) That Perez prevailed on one FEHA claim but not on other tort claims based on the same facts is not dispositive. (Greene v. Dillingham Construction N.A., Inc., supra,
101 Cal.App.4th at pp. 423-424.) "Attorneys generally must pursue all available legal avenues and theories in pursuit of their clients objectives; it is impossible, as a practical matter, for an attorney to know in advance whether or not his or her work on a potentially meritorious legal theory will ultimately prevail." (Sokolow v. County of San Mateo (1989) 213 Cal. App. 3d 231, 250, 261 Cal. Rptr. 520.)
As against these findings and considerations weighing in favor of Perezs attorneys, the court also found that, in some respects, Perezs attorneys lack of success required a reduction of the number of hours claimed. The court stated: "As plaintiff, particularly in discovery, did not prevail on all issues, this court has exercised its discretion to reduce the total hours claimed, and has reduced the hourly rates claimed to an amount it feels is reasonable under all the circumstances presented by this case."
The trial courts order reduced the number of hours, and the hourly rate, claimed in the attorney fee motion, in consideration of all these facts relating to the success or failure of Perezs attorneys and the result they achieved. Perezs attorney fee motion had claimed 3,220.30 hours for attorneys Heller and Fagelbaum. The court awarded Heller and Fagelbaum 2,598 hours. The court also reduced attorney Cotugnos hours from 363.20 claimed hours to 325 hours, reduced attorney Gatess hours from 194.60 claimed hours to 150 hours, and reduced paralegal Gutierrezs hours from 127.75 claimed hours to 110 hours. The trial court also determined and awarded hourly rates that were below what Perezs attorney fee motion stated. The trial court, moreover, expressly rejected the request by plaintiffs attorneys to use a multiplier to increase attorney fees.
Heller stated a customary billing rate of $ 350 hourly, which increased to $ 375 during the course of the action; the trial court found $ 250 a reasonable hourly rate for Heller. Fagelbaum stated a customary billing rate of $ 275 hourly, which increased to $ 295 during the action; the trial court found $ 250 a reasonable hourly rate for Fagelbaum. Cotugno stated a customary billing rate of $ 275 hourly, which decreased to $ 270 during the action; the trial court found $ 200 a reasonable hourly rate for Cotugno. Gates stated a customary billing rate of $ 165; the trial court found $ 125 a reasonable hourly rate for Gates. Gutierrez stated a customary billing rate of $ 80 hourly; the trial court found $ 75 to be a reasonable hourly rate for Gutierrez.
The May 13, 2002, order shows that the trial court did consider the success or failure of the litigation and the result achieved by Perezs attorneys.
Tutor-Saliba also argues that fees must be reduced to reflect a rational relationship to the amount of the substantive recovery. The case cited for this principle, however, arose from unique circumstances which make it inapplicable to this appeal. Bakkebo v. Municipal Court (1981) 124 Cal. App. 3d 229, 177 Cal. Rptr. 239 states: "any award for such fees must be reasonable and bear some rational relationship to the amount of the substantive recovery, and the award for attorney fees cannot in itself exceed the jurisdictional limit." (Id. at p. 236.) The attorney fee award of $ 5,420.58 in Bakkebo exceeded the $ 5,000 municipal court jurisdictional amount. Thus Bakkebo affirmed vacation of the award, which had been ordered in addition to $ 1,869.40 in attorney fees earlier awarded in the case. (Ibid.) Bakkebo does not govern this appeal, in which the attorney fee award did not exceed a jurisdictional amount.
Tutor-Saliba cites Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, to the effect a plaintiff can rely on the "private attorney general" attorney fee doctrine of Code of Civil Procedure section 1021.5 when a private action results in the enforcement of an important right affecting the public interest, but not when a lawsuit vindicates a plaintiffs private and pecuniary interests. (Flannery, at pp. 634-635.) However this may be, Flannery rejected the application of Code of Civil Procedure section 1021.5 in a case involving the FEHA, which had its own attorney fee statute to authorize an attorney fee award in an action that effectuated fundamental public policies. (Flannery, at pp. 637-638.) Flannery then held that the trial court erroneously used the "significant public benefit" factor to justify a multiplier to double the lodestar amount. The trial court also erroneously used factors to calculate the lodestar and used some of the same factors in applying a multiplier, a "double counting" which resulted in an unreasonable fee. (Id . at p. 647.) Because of these errors, Flannery reversed the order awarding attorney fees of $ 1,008,150 in a case in which the jury awarded the plaintiff $ 250,000 in damages. (Id. at 632-633.) After the trial court recalculated the attorney fee award on remand, the Court of Appeal affirmed an award of $ 891,042 in fees and expenses for the underlying case and $ 80,642 in fees and expenses for "the fee work." (Flannery v. Prentice, supra, 26 Cal.4th at p. 576.) Flannery v. California Highway Patrol therefore does not stand for the proposition that an attorney fee award cannot exceed a jurys verdict, even by a very large amount.
Tutor-Saliba argues that Perez initially sought damages of $ 12,000,000, and before trial served a Code of Civil Procedure section 998 offer to compromise the causes of action involving Tutor-Saliba (but not Wiberg) of $ 4,500,000. Tutor-Saliba cites these figures to show that the $ 187,500 damages recovered indicates that Perez had only a limited success in achieving the goals of the litigation. Tutor-Saliba made the same argument in Perez II. As Perez II stated, "Defendants cite no authority stating that an initial statement of damages, settlement offer, or motion for additur should be compared to the judgment to determine plaintiffs `degree of success. "Tutor-Saliba still provides no authority to support this argument.
Tutor-Saliba has not shown that the trial court failed to consider the criterion of the success or failure of Perezs attorneys, and we find no abuse of discretion.
d. The Trial Court Did Not Fail to Consider Apportionment of Time
Spent by Perezs Counsel on Unsuccessful Claims
Tutor-Saliba argues that the trial court erroneously failed to consider apportionment of time spent by Perezs attorneys on unsuccessful FEHA claims and on unsuccessful common law claims unrelated to her successful FEHA claim, and successful common law claims that do not authorize an attorney fee award.
First, the facts underlying the FEHA cause of action for sexual harassment were closely related, and in most cases identical to, the non-FEHA causes of action for sexual battery, negligent retention and supervision of Wiberg, and intentional infliction of emotional distress. We do not regard an apportionment of fees for time spent on FEHA and non-FEHA causes of action as to which Perez prevailed as necessary in this case.
Moreover, the attorney fee award did reflect the trial courts apportionment of fees requested for causes of action as to which Perez prevailed, as distinct from fees requested for causes of action as to which Perez did not prevail. The trial courts order, for example, stated: "This Court finds that the issues presented in the cause of action for negligent infliction of emotional distress were inextricably intertwined with those issues on which she prevailed." (Italics added.) This reflects the award of fees for issues as to which Perez prevailed, not as to those on which Perez did not prevail. The courts order further stressed that it had made a "`de novo calculation of what was reasonable and necessary." The order stated: "As plaintiff, particularly in discovery, did not prevail on all issues, this court has exercised its discretion to reduce the total hours claimed, and has reduced the hourly rates claimed to an amount it feels is reasonable under all the circumstances presented by this case."
As discussed, ante, the trial court significantly reduced the hours, and the hourly fee, claimed by Perezs attorneys. Even without the multiplier requested in Perezs attorney fee motion, that motion sought $ 1,193,005.50 in fees. The trial court rejected the request to increase this amount by a 1.25 multiplier, and instead reduced the fee award to $ 741,500. We conclude that this reduction reflects the trial courts exclusion of fees for issues and causes of action as to which Perez did not prevail.
2. Interest on the Attorney Fee and Cost Award Should Commence to
Accrue on the Date of the August 26, 2002, Modified Judgment
The modified judgment in this case filed August 26, 2002, stated that Perez was to recover damages from Tutor-Saliba and Wiberg for amounts stated therein, and awarded Perez, as prevailing party, $ 741,500 in attorney fees and $ 20,751.91 in costs, with interest at 10 percent per annum "from the original date of entry of this judgment (12/30/99) until paid." Tutor-Saliba claims that as to the $ 741,500 in attorney fees and $ 20,751.91 in costs, the trial court erroneously imposed interest from the December 30, 1999, original judgment. Tutor-Saliba argues that because the award of attorney fees and costs resulted from a reversal of the original judgment, rather than a modification of the original judgment, the award of attorney fees and costs should bear interest from the August 26, 2002, entry of the new judgment. We agree.
Although Code of Civil Procedure section 685.010, subdivision (a) states that interest commences to accrue on a money judgment on the date of entry of the judgment, this statute did not alter the rule in Stockton Theatres, Inc. v. Palermo (1961) 55 Cal.2d 439, 442-443, 11 Cal. Rptr. 580, 360 P.2d 76: "A judgment bears legal interest from the date of its entry in the trial court even though it is still subject to direct attack. [Citation.] When a judgment is modified upon appeal, whether upward or downward, the new sum draws interest from the date of entry of the original order, not from the date of the new judgment. [Citations.] On the other hand, when a judgment is reversed on appeal the new award subsequently entered by the trial court can bear interest only from the date of entry of such new judgment."
Under the facts of this case, Perez II found that the reversal of Perezs cause of action against Tutor-Saliba and Wiberg for negligent infliction of emotional distress in Perez I reduced Perezs $ 276,500 judgment by $ 89,000, to $ 186,500. This reduction in the judgment, Perez II stated "could affect the determination of the amount of attorney fees." Although it affirmed the remainder of the judgment, Perez II reversed and remanded "the portion of the judgment awarding costs" to the trial court for "redetermination." This it was entitled to do, because a judgment for attorney fees is a separate and complete judgment which is governed by the law applicable to judgments generally. (Stockton Theatres, Inc. v. Palermo, supra, 55 Cal.2d at p. 443; Cooperman v. Unemployment Ins. Appeals Bd. (1975) 49 Cal. App. 3d 1, 11, 122 Cal. Rptr. 127.) The reversal did not modify the cost award up or down. It remanded the award for redetermination, which required the trial court to conduct a new hearing on the facts, exercise its discretion, and make a new award of attorney fees and costs. If, in Perez II, this court had relied on the then-existing record on appeal, altered the amount of the attorney fee and cost award, and ordered the trial court to enter a judgment reflecting that new amount, that disposition would have been a modification. Instead Perez II reversed the attorney fee and cost award and remanded to the trial court for a new hearing, redetermination of issues, and a new exercise of the trial courts discretion. That disposition was, in substance, a reversal of the attorney fee and cost award, not a modification. (See Snapp v. State Farm Fire & Cas. Co. (1964) 60 Cal.2d 816, 820, 36 Cal. Rptr. 612, 388 P.2d 884; see also Ehret v. Congoleum Corp. (2001) 87 Cal.App.4th 202, 210.)
Therefore interest should commence to accrue on the $ 741,500 in attorney fees and $ 20,751.91 in costs from the date of the modified judgment filed August 26, 2002.
3. Tutor-Saliba Has Not Shown Error in the Trial Courts
Determination of Pre-section 998 Offer Costs
Tutor-Saliba claims that the trial court abused its discretion by making insufficient findings as to costs plaintiff incurred for services before defendants offer to compromise pursuant to Code of Civil Procedure section 998 ("section 998").
Section 998, subdivision (e) states: "If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly." If the plaintiff does not accept a defendants offer and fails to obtain a more favorable judgment or award, the plaintiff must also pay the defendants costs from the time of the offer. (Id ., subd. (c).)
On April 15, 1999, Tutor-Saliba made a section 998 offer for $ 600,000, which included attorney fees, costs, and interest. As defendants offer included attorney fees, costs, and interest, the determination of whether plaintiff obtained a "more favorable judgment" proceeds by comparing the amount of defendants section 998 offer with plaintiffs judgment plus pre-offer costs, including attorney fees. (Heritage Engineering Construction, Inc. v. City of Industry (1998) 65 Cal.App.4th 1435, 1441.)
Tutor-Saliba argues that because Perez recovered only $ 187,500, section 998, subdivision (e) prohibited her from recovering her post-offer attorney fees unless those fees, incurred as of April 15, 1999, exceeded $ 412,500.
The $ 187,500 judgment, subtracted from defendants section 998 offer of $ 600,000, yields $ 412,500. The trial court found, however, that "at least $ 450,000.00" of plaintiffs attorney fees was incurred before the section 998 offer. Tutor-Saliba attacks this finding by referring to defendants own attorney fees as of April 15, 1999, totaling $ 434,687.50. No citation to the record is given for this figure, and we do not regard it as relevant to the trial courts figure for plaintiffs pre-section 998 offer costs. An appellant must affirmatively show that the trial court committed error. (Rossiter v. Benoit (1979) 88 Cal. App. 3d 706, 711-712, 152 Cal. Rptr. 65.) Error is never presumed; a lower courts order is presumed correct. The appellant has the burden to provide citations to an adequate record on appeal and relevant argument and citation to authority. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) Tutor-Saliba has not met this burden of showing error in the trial court.
Perezs attorney fee motion stated that the attorney fee request included $ 772,792 in legal fees for time before the April 15, 1999, section 998 offer.
Perez requests sanctions on appeal on this issue. We deny the request as not satisfying criteria in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651, 183 Cal. Rptr. 508, 646 P.2d 179.
DISPOSITION
Plaintiffs request for sanctions on appeal is denied. The August 26, 2002, judgment is modified to correct the amount of attorney fees to $ 741,500 and to order interest on $ 741,500 in attorney fees and $ 20,751.91 in costs to accrue from August 26, 2002. The judgment is otherwise affirmed. The parties are ordered to bear their own costs on appeal.
We concur: KLEIN, P.J., CROSKEY, J.