Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, Ann I. Jones, Judge, Los Angeles County Super. Ct. No. BC307845
Doumanian & Associates and Nancy P. Doumanian for Plaintiff and Appellant.
Paul, Hastings, Janofsky & Walker, George W. Abele, Gayle A. Goldman and Jennifer A. Awrey for Defendant and Respondent.
JOHNSON, J.
This is the second time this controversy has come before us. Appellant Anahid Mnaskanian (Mnaskanian), an injured clerical employee, sued her employer 21st Century Insurance Company (21st Century), under the Fair Employment and Housing Act (FEHA) for failure to accommodate her physical limitations. A jury found 21st Century liable and awarded Mnaskanian as damages her past and present economic and noneconomic losses plus punitive damages, after which the trial court awarded Mnaskanian her attorneys’ fees. On 21st Century’s appeal, we reversed the awards for past and future noneconomic damages and punitive damages on the ground that they were not supported by any evidence, reversed the award of attorneys’ fees on the ground that it was excessive, and remanded the cause to the trial court with directions to enter a reduced judgment and redetermine the amount of attorneys’ fees anew. (Opinion, pp. 2, 17.)
Mnaskanian v. 21st Century Insurance (Dec. 21, 2007, B191052) [nonpub. opn.] (Opinion).)
Mnaskanian now appeals from the trial court’s attorneys’ fees award on remand (the award on remand) and its award of appellate attorneys’ fees (the appellate fees award). Mnaskanian contends the trial court abused its discretion by: (1) adopting an impermissible proportionality rule in calculating the amount of fees in both the award on remand and the appellate fees award; (2) failing to consider the initial request for attorneys’ fees; (3) failing to apply the lodestar calculation method properly; and (4) failing to apply a multiplier. In addition, she contends the court erred in setting the starting date for statutory interest on the date of the original judgment. We conclude the contentions lack merit and affirm.
BACKGROUND
Mnaskanian filed her complaint on December 17, 2003, in Los Angeles County Superior Court, alleging a single cause of action for failure to accommodate her disability under FEHA. A jury trial commenced in January 2006 before Judge Judith Chirlin. The jury found in favor of Mnaskanian on her sole cause of action and awarded damages (economic, emotional distress, and punitive) in the amount of $729,520, plus interest, for a total judgment award of $845,638.27.
As the prevailing party, Mnaskanian sought to recover $1,054,500 in attorneys’ fees, and $78,759.60 in costs. 21st Century opposed Mnaskanian’s fee request, based largely on the significant defects in her counsel’s billing records. The trial court denied 21st Century’s request for discovery and, applying a “blended” hourly rate of $300 and finding all 2,554.65 hours claimed to be reasonable, awarded Mnaskanian $766,395 in attorneys’ fees, and $87,063.38 in costs.
On June 28, 2006, the trial court entered an amended order awarding costs and attorneys’ fees in this matter. In this amended order, the amount of attorneys’ fees remained unchanged, but the costs award was reduced to $60,351.89.
21st Century appealed the judgment and the award of attorneys’ fees. On December 21, 2007, this Court: (1) reversed the awards for past and future noneconomic damages and punitive damages on the ground that they were not supported by any evidence; (2) affirmed the underlying judgment; and (3) reversed the award of $766,395 in attorneys’ fees as “excessive” in light of the partial reversal of the damages award and the “patent absurdity” of the submitted billing records, and remanded the issue of the amount of attorneys’ fees for determination in light of our opinion. Mnaskanian’s verdict thus was reduced from $729,520 to $179,520, and her attorneys’ fees award was vacated and remanded for determination anew.
Mnaskanian sought rehearing with this Court, then a petition for review with the California Supreme Court. Both requests were denied.
On remand, Mnaskanian requested that the trial court simply “confirm” the overturned fee award of $766,395. In the alternative, Mnaskanian argued that, if the trial court was “inclined” to determine the fee request anew, it should reconsider Mnaskanian’s original request for $1,054,500, despite this Court’s conclusion that the lesser amount—$766,395—already was excessive. Mnaskanian also sought attorneys’ fees and costs for all of the hours billed on the first appeal at an hourly rate of $550, plus a 1.5 multiplier, for a total request of $373,132.50. She also sought an award of $1,834.72 for costs on appeal, despite the fact that we ordered the parties to pay their own costs of appeal.
Upon remand, 21st Century filed a peremptory challenge to Department 89, Judge Judith Chirlin, presiding, under Code of Civil Procedure, section 170.6. The matter was thereafter reassigned to Department 40, Judge Ann I. Jones, presiding.
On July 11, 2008, the trial court awarded Mnaskanian $420,000 in attorneys’ fees through trial. It based its lodestar determination on the number of hours 21st Century reportedly spent defending the action, “elect[ing] to use a proxy from defendant’s own admittedly reasonable billing practices....” The court reasoned that such a proxy was a “far more reliable measure of the number of hours reasonably expended than the records provided by plaintiff.” The trial court stated: “The records presented to Judge Chirlin, to the Court of Appeal[], and to this court, contain numerous and troubling inconsistencies and omissions. Specifically, the billing records submitted by plaintiff[’]s counsel show[] billing for specific tasks that could not have been performed on the date shown. For example, plaintiff’s counsel’s records show time being billed for preparing certain pleadings after the pleading was filed and served. In other instances, counsel’s billing records show time entries for preparing documents that were never served. In yet other instances, plaintiff’s records show time billed during periods when counsel claimed that she was in trial on other cases. And, there are numerous instances of duplicate billing entries for the same task on the same date by the same attorney. Finally, the total number of hours claimed (over 2500 of attorney time for a single plaintiff case and over 245 hours spent in opposing a single motion for summary judgment) is excessive. The only conclusion that this court can reach is that the attorney’s records of the time actually spent cannot be fairly relied upon.”
The trial court determined a reasonable amount of time was 1400 hours—the total number of hours that 21st Century’s attorneys expended in this matter (after subtracting 14.5 hours spent in the punitive damages portion of the trial, because this Court reversed Mnaskanian’s punitive damages award on appeal). The court did not deduct any time expended on the claim for emotional distress damages, although the award for emotional distress damages was also reversed on appeal, because the evidence in support of these damages and Mnaskanian’s underlying FEHA claim overlapped. The trial court noted that it was unclear whether or not this Court intended to affirm the previous trial court’s “‘blended rate’” of $300 per hour, but found that $300 per hour was “consistent with the rates charged by other attorneys in similar cases in this courthouse.”
As 21st Century pointed out in its opposition to Mnaskanian’s motion for confirmation of attorney fee award, it did not in the first appeal contest the hourly rate the court applied.
The trial court calculated the lodestar to be $420,000.The court did not further adjust the fee amount: “While certain types of damages were reversed on appeal, the plaintiff did prevail on her core FEHA case. FEHA cases are sometimes considered entitled to a fee enhancement in order to attract representation in certain meritorious cases. As the positives and negatives cancel each other out, there shall be no further adjustment of the fee.” The court thus awarded attorneys’ fees in the amount of $420,000.
The trial court’s July 11, 2008 order also addressed Mnaskanian’s request for attorneys’ fees and costs on appeal, awarding Mnaskanian $82,918.33 in fees. The trial court stated that this Court had affirmed 21st Century’s liability, but found that there was no substantial evidence on Mnaskanian’s claim of emotional distress and reduced the damages and remanded the matter for redetermination of the amount of attorneys’ fees. Mnaskanian remained the prevailing party following the appeal, and the trial court had the discretion to award her attorneys’ fees.
The trial court determined, however, that Mnaskanian’s appellate fee request required reduction to account for her limited success on appeal. Acknowledging Mnaskanian had successfully “protected her principal liability judgment and damages,” the court determined that that success amounted to “roughly one-third of the appeal.”
The trial court noted that it had the discretion to award a multiplier, but declined to do so because: (1) “[t]here are no private or public reasons for the use of the multiplier sought in this case”; (2) the issues presented on appeal were “neither novel nor difficult”; (3) the nature of the litigation did not preclude other employment by the attorneys; (4) considering the amount of the eventual victory on the merits, the amount of the base award was sufficient to compensate the attorney at a rate “reflecting the risk of non-payment in contingency cases as a class.” The trial court denied Mnaskanian’s request for costs “because the Court of Appeal ordered the parties to bear their own costs of appeal.”
Mnaskanian appealed.
DISCUSSION
A. Standard of Review
In reviewing an award of attorneys’ fees, the appropriate standard of review is abuse of discretion. (See Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 549–550 [“An abuse of discretion is shown when the award [of attorneys’ fees] shocks the conscience or is not supported by the evidence.”]; see also Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 621–622.) The party who challenges the trial court’s exercise of discretion always bears the burden “‘to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) “We defer to the trial court’s discretion ‘because of its “superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” [Citation.]’” (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 418, quoting Choate v. County of Orange (2000) 86 Cal.App.4th 312, 324.)
B. Applicable Law
“The FEHA provides that the trial court, ‘in its discretion, may award to the prevailing party reasonable attorney’s fees and costs....’ (Gov. Code, § 12965, subd. (b).)” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393 (Horsford).) The California Supreme Court adopted the lodestar method of awarding statutory attorney fees in Serrano v. Priest (1977) 20 Cal.3d 25 (Serrano III). Under this method, “the fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) Following Serrano III, our high court advises that the lodestar may “be adjusted by the court based on factors including,... (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of the adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).)
In exercising its discretion, the trial court must do so in a manner that, in its judgment, will best effectuate the purposes of FEHA. (Horsford, supra, 132 Cal.App.4th at p. 394.) “The basic, underlying purpose of FEHA is to safeguard the right of Californians to seek, obtain, and hold employment without experiencing discrimination on account of race, religious creed, color, national origin, ancestry, physical disability, medical disability, medical condition, marital status, sex, age, or sexual orientation.” (Flannery v. Prentice (2001) 26 Cal.4th 572, 582–583.)
C. The Trial Court Properly Employed the Lodestar Method and Did Not Abuse Its Discretion In Awarding Attorney’s Fees on Remand in the Amount of $420,000
Mnaskanian appears to contend the second trial court improperly imposed a proportionality rule, improperly disregarded the original 189 pages of billing records in favor of the number of hours 21st Century billed in the litigation, and abused its discretion in failing to apply a multiplier to the lodestar amount. None of these contentions has merit.
Because Mnaskanian’s “Questions Presented” section does not correspond to the order of her arguments, we set forth her contentions as best we can discern them. To the extent she merely repeats arguments made in the first appeal or challenges our opinion in that appeal, we do not address these assertions.
1. The Trial Court Did Not Impose a Proportionality Rule in Calculating the Attorneys’ Fees Award
Mnaskanian contends that the second trial court “reduced the fee award citing to a proportionality requirement even though the trial court itself acknowledged on the record that the appellate court’s decision imposing a proportionality requirement was ‘wrong’ and ‘was not the law.’” Mnaskanian is correct in pointing out that California does not impose a rule of proportionality on fee awards. (Ketchum, supra, 24 Cal.4th at pp. 1136–1137.) The second trial court did not, however, impose such a rule here.
During the July 10, 2008 hearing, the trial court stated: “I believe the mandate contains an impermissible legal requirement that there be some degree of proportionality between the amount sought in attorneys’ fees and the amount awarded by the jury. I think that is clearly contrary to California authority and I think it is contrary to the purpose of the attorneys’ fees provision in FEHA. So I’m not looking for a proportionality. I’m looking, instead, for the lodestar analysis that has historically been what is required.”
The trial court applied the same blended rate of $300 per hour that the first trial court used to the number of hours it deemed reasonable in litigating this matter, notably, the 1400 hours spent by 21st Century. In so doing, the trial court did not, as Mnaskanian asserts, reduce her requested fee award to bear some mathematical relationship to the amount of the damages award. Rather, the trial court first calculated the lodestar before considering any adjustment factors. We reject Mnaskanian’s contention here.
2. The Trial Court Did Not Abuse Its Discretion in Determining Not to Consider Mnaskanian’s Initial Request for Attorneys’ Fees
In the first appeal, we concluded the attorneys’ fees award could not stand given our partial reversal and the unreliability of the billing records. (Opinion, p. 15.) Without any effort to clarify or explain the unreliable billing records, Mnaskanian simply resubmitted them to the second trial court. Given our prior determination that these records were at least part of the reason for reversing the attorneys’ fees award, it would have been error for the second trial court to ignore our conclusion and use these records as though no appeal had occurred. This contention is frivolous.
3. The Trial Court Properly Employed the Lodestar Method
Citing Serrano III, supra, 20 Cal.3d at p. 48, the second trial court correctly set forth the essence of the lodestar. In particular, the court stated, “[f]undamental to a court’s determination of a reasonable attorney’s fee[] is the careful compilation of time spent and reasonable hourly compensation of each attorney in the presentation of the case.” The second trial court manifestly understood how to calculate the lodestar. (See Ketchum, supra, 24 Cal.4th at p. 1134 [“‘[T]he fee setting inquiry in California ordinarily begins with the “lodestar”, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.’”].)
The problem, which Mnaskanian failed to remedy in her motion for fees on remand and continues to ignore here, is that the billing records were, for purposes of calculating the lodestar, unusable. The second trial court stated: “The records presented to Judge Chirlin, to the Court of Appeals [sic], and to this court, contain numerous and troubling inconsistencies and omissions. Specifically, the billing records submitted by plaintiffs [sic] counsel shows billing for specific tasks that could not have been performed on the date shown.... And, there are numerous instances of duplicate billing entries for the same task on the same date by the same attorney. Finally, the total number of hours claimed (over 2500 [hours] of attorney time for a single plaintiff case and over 245 hours spent in opposing a single motion for summary judgment) is excessive. The only conclusion that this court can reach is that the attorney’s records of the time actually spent cannot be fairly relied upon.”
Having concluded that the first element of the lodestar analysis could not be satisfied by relying on the billing records, the second trial court turned to 21st Century’s billed hours as a proxy for the number of hours reasonably expended. This case is readily distinguishable from Horsford, supra, 132 Cal.App.4th 359, where the court of appeal concluded there was no basis for completely disregarding the prevailing party’s attorney’s billing records. (Horsford, supra, 132 Cal.App.4th at p. 397.) Here, Mnaskanian has been on notice since she first sought attorneys’ fees in 2006 of every question 21st Century had about the records because they were first set forth in the declaration of Samantha Black. As part of her motion to confirm the fee award on remand, Mnaskanian elected to stand on her original submission. Given her reliance on the same records we already determined were inadequate and unreliable, Mnaskanian has no basis for arguing the second trial court erred in considering the line-by-line specification of questionable time entries 21st Century submitted in response to the initial 189 pages of billing records. The second trial court did not abuse its discretion in finding the records unreliable and disregarding them where Mnaskanian made no effort even to address the numerous issues 21st Century raised.
As for the second trial court’s use of 21st Century’s hours as a proxy for reasonable hours expended in the litigation, Mnaskanian fails to indicate, let alone establish that the second trial court erred or abused its discretion in proceeding in this manner. Mnaskanian further fails to explain why the court could not, based on its own experience, find that 1414.5 hours of attorney time appeared to be a “reasonable amount of time given the fact that the case was litigated through trial.” We conclude there was no abuse of discretion.
4. The Trial Court Did Not Abuse Its Discretion in Declining to Apply a Multiplier
Mnaskanian contends her counsel should have been awarded fees based upon a multiplier of 1.5. “In reviewing a challenge to a trial court decision applying a lodestar multiplier to an award of attorney fees, the standard of review is abuse of discretion, since the trial judge was presumably in the best position to determine the value of the services rendered by counsel....” (Ramos v. Countrywide Home Loans, Inc., supra, 82 Cal.App.4th at p. 622.) “[O]ur review must be highly deferential to the views of the trial court.” (Children’s Hospital & Medical Center v. Bonta' (2002) 97 Cal.App.4th 740, 777.) As Serrano III cautions, “[t]he ‘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.’ [Citations.]” (Serrano III, supra, 20 Cal.3d at p. 49.)
Since Serrano III, California courts have repeatedly recognized the propriety of taking the contingent risk of nonpayment into account in setting a lodestar multiplier. (Serrano III, supra, 20 Cal.3d at p. 49; Greene v. Dillingham Construction N.A., Inc. (2002) 101 Cal.App.4th 418, 427.) As explained in Ketchum, supra, 24 Cal.4th at p. 1132, the enhancement is based on the consideration that a contingent fee, “‘“since it involves a gamble on the result, may properly provide for a larger compensation than would otherwise be reasonable.”’” Thus, “[t]he adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is neither unexpected nor fortuitous. Rather, it is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees.” (Id. at p. 1138.) Whether to apply a multiplier is a matter of discretion, and Mnaskanian has not demonstrated that the second trial court’s decision not to apply one was an abuse of that discretion.
The purpose of enhancers is to determine a fee that is likely to induce competent counsel to undertake a difficult and risky public interest case. For example, in Serrano III, the plaintiffs challenged California’s system for financing public schools and succeeded in overturning the existing system; the award of fees always was uncertain due to the complexity of the case and—unlike here—the lack of any specific statutory attorneys’ fees provision, thus justifying enhancement. By contrast, a multiplier is not justified in more commonplace discrimination cases such as this one. In Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, for example, the plaintiff prevailed on her FEHA sexual harassment claim. (Id. at p. 1137.) The trial court applied a 1.7 multiplier. (Ibid.) On appeal, the court reversed the fee award, finding that no multiplier was warranted. (Id. at p. 1176.) Distinguishing Weeks from cases such as Serrano III, the court explained that the instant case, by contrast, was “in essence a personal injury action, brought by a single plaintiff to recover her own economic damages.” (Id. at p. 1174.) In addition, the court found, Weeks and her attorney had a contingency arrangement that assured her attorney a portion of her recovery. (Ibid.) Indeed, as the court in Weeks explained: “[T]he risk that Weeks’s attorneys would not be compensated for their work was no greater than the risk of loss inherent in any contingency fee case; however, because of the availability of statutory fees the possibility of receiving full compensation for litigating the case was greater than that inherent in most contingency fee actions.” (Ibid.)
Like Weeks, Mnaskanian appears to have sought no relief for others but only an ordinary money judgment for herself. (See also Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 637 [multiplier reversed, even though plaintiff’s lawsuit “conferred a... benefit... [to] a large class of persons” by sending a message to the CHP; the benefit was “incidental to the plaintiff’s own personal stake in the matter”].)
Although Mnaskanian attempts to justify a multiplier, she fails to demonstrate the second trial court abused its discretion in refusing to apply one. For example, Mnaskanian contends that this case warrants a multiplier because of its difficultly. Notably, she argues this case was particularly difficult because “[t]he risk factors unique to Appellant’s case were in addition to the normal risk factors which accompany any employment discrimination case.” She fails, however, to explain why this FEHA case was any riskier than a garden variety employment discrimination case.
The mere fact that the case was “hard fought” fails to demonstrate the kind of difficulty the multiplier is meant to compensate for. As 21st Century points out, the hours billed in this “very hard fought” litigation were already calculated into the lodestar amount; Mnaskanian cites no basis for weighting counsel’s hours twice, that is, in the lodestar calculation and again through application of a multiplier.
Mnaskanian’s claim that she single-handedly “brought [21st Century] to its knees” through her lawsuit by bringing about substantial changes with regard to how the Company treats workers injured on the job, even if accurate, is incidental to the purpose of her action. Regardless, most of the damages awarded to Mnaskanian at trial were reversed on appeal, and, as the second trial court observed, “the positives and negatives cancel each other out.”
Mnaskanian relies on counsel’s argument to the jury during the punitive damages phase of the trial. Counsel’s arguments are not evidence, of course, and the record contains no evidence that 21st Century in fact changed its procedures as a result of this action. In any event, we reversed the award of punitive damages because there was “no evidence that any director, officer, or managing agent was involved in the accommodation process.” (Opinion, p. 9.)
To the extent Mnaskanian relies on Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413 (Wysinger), in which the court found no abuse of discretion where the trial court awarded plaintiff more than the lodestar despite plaintiff’s limited success in the action, the case offers her little support. First, Wysinger was the first appeal on the merits, not, as here, an appeal following remand in which the award of attorneys’ fees had already been reversed. Second, the record and our previous opinion reveal that Mnaskanian did not achieve the “excellent results” touted in Wysinger. (Id. at p. 417.) Finally, the second trial court made no finding, other than with respect to emotional distress damages, that the evidence in support of the reversed claims was “‘intertwined’” and thus not capable of apportionment to reflect lack of success. (Wysinger, supra, 157 Cal.App.4th at p. 431.) While we appreciate and share the Wysinger court’s concern that “‘reduc[ing] the attorneys’ fees of a successful party because he did not prevail on all his arguments, makes it the attorney, and not the defendant, who pays the costs of enforcing’ the plaintiff’s rights[,]” there is no indication that such a result occurred here. In short, the general rule that the trial court “has broad discretion to adjust the fee downward” and “is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors” applies here. (Ketchum, supra, 24 Cal.4th at p. 1138.)
D. The Trial Court Did Not Abuse Its Discretion In Awarding Appellate Attorney’s Fees In the Amount of $82,918.33
Mnaskanian asserts the same contention regarding the appellate fees award that she made with respect to the award on remand. That is, the second trial court impermissibly invoked a proportionality rule in awarding the appellate fees. Mnaskanian confuses the notion of proportionality, which California does not favor (Harman v. City and County of San Francisco, supra, 158 Cal.App.4th at p. 421 [“There is ‘no mathematical rule requiring proportionality between compensatory damages and attorney’s fees awards, see City of Riverside v. Rivera, 477 U.S. 561, 91 L.Ed.2d 466, 106 S.Ct. 2686 (1986)....’”]),with the court’s discretion to consider the degree of success achieved in the litigation. Limited success is among the factors the court should consider as a basis for awarding a reduced fee, especially where the plaintiff failed to obtain a substantial part of the relief he or she sought. (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 250 [“in arriving at an award of reasonable attorney fees in the instant case, the trial court should take into consideration the limited success achieved by appellants”]; Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1674 [“A reduced fee award is appropriate when a claimant achieves only limited success”]; Bingham v. Obledo (1983) 147 Cal.App.3d 401, 407 [“it is generally undesirable to award fees for time expended unsuccessfully on major portions of a lawsuit[,] [citation]... [but] this should not ordinarily preclude an award for success in another important part of the case.”].)
Mnaskanian bears the burden of demonstrating an abuse of discretion. (Denham v. Superior Court, supra, 2 Cal.3d at p. 566.) She has failed, however, to demonstrate error or abuse. The second trial court properly calculated the lodestar using the hourly rate Mnaskanian’s counsel sought and the number of hours billed on all aspects of the appeal. The court then considered Mnaskanian’s limited success on appeal concerning emotional distress and punitive damages. The court also took into account Mnaskanian’s unsuccessful efforts to obtain review from the California Supreme Court. The court further rejected 21st Century’s argument that because approximately 75 percent of Mnaskanian’s monetary recovery was overturned, her fees should be reduced accordingly. Instead, the second trial court observed that Mnaskanian’s counsel “successfully protected her principal liability judgment and damages[,]” and estimated that this success “amounts to roughly one-third of the [issues on] appeal.” There is no question that a reduction was appropriate here. The trial court found the overall fee ($82,918.33) to be reasonable. In light of Mnaskanian’s manifest failure to carry her burden to establish an abuse of discretion, we reject her contention and affirm the appellate fees award.
E. The Trial Court Properly Calculated Statutory Interest as of the Date of the New Award
Mnaskanian contends the trial court should have ordered that statutory interest at a rate of 10 percent per annum accrue as of the date of the original judgment. We disagree. It is well-settled that “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.” (Stockton Theatres, Inc. v. Palermo (1961) 55 Cal.2d 439, 442–443 [holding that judgment modified on appeal, whether upward or downward, draws interest from date of original order, while judgment reversed on appeal draws interest from date of new judgment]; Snapp v. State Farm Fire & Cas. Co. (1964) 60 Cal.2d 816, 818–819.) We reject Mnaskanian’s contention to the contrary.
In its brief, 21st Century requests that we award it attorneys’ fees on appeal, contending Mnaskanian’s current appeal is frivolous because it merely reargued the issues decided in the first appeal. We decline this request. A party may not request sanctions at oral argument or in their briefs; they must filed a noticed motion. (Cal. Rules of Court, rule 8.276(a)(1) [on motion of a party or its own motion, the court may impose sanctions on a party for taking a frivolous appeal].) Due process requires the party to be sanctioned receive basic procedural protections before sanctions can be imposed. These include notice that sanctions may be imposed, an opportunity to respond, and a hearing on the issue. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654.)
DISPOSITION
The orders are affirmed. 21st Century shall recover its costs of appeal.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.
Therefore, a party cannot seek sanctions for a frivolous appeal except by motion. (Cal. Rules of Court, rule 8.276(a); Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402; Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1273.) Sanctions cannot be sought in the respondent’s brief. (Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124 [party must file separate motion for sanctions with supporting declaration]; see Cal. Rules of Court, rule 8.276(b)(1).)