B210893 c/w B211955
Barnett & Rubin, Jeffrey D. Rubin, Kathryn B. Salmond; Law Offices of Robert H. Pourvali, and Robert H. Pourvali for Defendant and Appellant. Lurie, Zepeda, Schmalz & Hogan, Troy L. Martin, and M. Damien Holcomb for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC342970)
APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Mel Recana, Judge. Affirmed in part, reversed in part, and remanded.
Barnett & Rubin, Jeffrey D. Rubin, Kathryn B. Salmond; Law Offices of Robert H. Pourvali, and Robert H. Pourvali for Defendant and Appellant.
Lurie, Zepeda, Schmalz & Hogan, Troy L. Martin, and M. Damien Holcomb for Plaintiff and Respondent.
In this consolidated appeal, appellant Millennium Corporate Solutions (Millennium) appeals from a money judgment following a jury verdict and from a postjudgment order awarding it a pro tanto credit as a result of a settlement by a joint tortfeasor, Sherry Lopez. Millennium contends (1) the trial court abused its discretion in denying a motion to bifurcate trial; (2) the trial court erred in conditionally granting Millennium's motion for a new trial because the negligent interference claim was preempted by the California Uniform Trade Secrets Act, Civil Code sections 3426 to 3426.11 (CUTSA); (3) the court erred in denying Millennium's motion for a judgment notwithstanding the verdict (JNOV) because there was insufficient evidence to support the jury's verdict; and (4) the court erred in calculating the credit for the Lopez settlement. We conclude the trial court did not err in denying the bifurcation motion and the motion for a JNOV, but erred in conditionally granting the motion for a new trial. We further conclude the court did not err in calculating the offset credit for the Lopez settlement. Accordingly, we affirm in part, reverse in part, and remand for a recalculation of the amount of the money judgment against Millennium.
FACTUAL AND PROCEDURAL HISTORY
NHC Insurance Services, Inc. (NHC) is an insurance agency and brokerage founded by Nancy Collinge in 1986. In 1989, NHC hired Lopez as an agent and broker. During the following years, Lopez assumed more power and responsibilities at NHC. In 1998, she became vice-president of NHC. Later, Lopez gained check writing authority on NHC's bank accounts and also assumed responsibility for supervising the finances of NHC. Throughout the course of her employment with NHC, Lopez had access to confidential or trade secret information regarding NHC's clients, including their names, contact and business information, identity of insurers, types of coverage, coverage limits, amount of premiums, and renewal dates.
Collinge was the sole owner of NHC until 1999, when she gave Lopez a 10 percent ownership interest in NHC. Collinge also orally agreed that Lopez could purchase up to seven percent ownership interest in NHC each year. Collinge testified the purpose of the oral agreement was to allow her to retire, because she contemplated that Lopez would gradually buy out her ownership interest in NHC. In a separate Buy-Sell Agreement between NHC and Lopez, the value of NHC was defined as NHC's net annual commission income multiplied by a valuation factor of 1.5.
In February 2005, Collinge was diagnosed with leukemia. When Lopez was informed of the diagnosis, she expressed deep concern for Collinge and encouraged Collinge to rely on her more. Around the same time, NHC's outside accountant, Kevin Thompson, began noticing NHC had a cash flow problem and discussed this issue with Lopez and Collinge.
Around August 2005, Collinge discovered at least $180,000 was missing from NHC's trust account. After several weeks of investigation, Collinge confronted Lopez and suspended her without pay pending a complete investigation of the alleged embezzlement. Although Lopez was suspended, Collinge asked her to finish work on the renewal of a major client's insurance policies. The client, Pinnacle Communities (Pinnacle), was one of NHC's two largest accounts at the time. Lopez secured the renewal, which resulted in a significant financial benefit to NHC.
A few days after being suspended, Lopez asked an employee of NHC to obtain a client list from NHC's computer system, but the employee declined to do so. The employee reported Lopez's request to Collinge, and NHC changed the passwords for its computer system that day. Another NHC employee testified she saw Lopez take what appeared to be client files from NHC in 2005. In addition, as late as December 8, 2006, Lopez had access to a smartphone containing contact information for various NHC clients.
On October 24, 2005, Lopez began working for Millennium. Shortly thereafter, Lopez gave a list of over 100 prospective clients to Millennium's office manager, Clarissa Sarabia, so that Sarabia could send an announcement out to the entities on the list. Lopez testified she prepared this list, which included NHC clients, from public information sources such as the internet, phone books, and various chambers of commerce. Sarabia sent the announcement, which read as follows:
"We are extremely pleased and proud to announce that effective October 24, 2005, Sherry Lopez has joined the Property & Casualty Division of Millennium Corporate Solutions Inc., as a Vice-President. Sherry comes to MCS with an extensive background in Property & Casualty sales and consulting. She has been in the insurance business for over 35 years, and is well versed in all commercial & personal lines of insurance. Sherry also has her Certified Insurance Counselor (CIC) designation.
"Millennium Corporate Solutions is a leading consulting and insurance brokerage firm in Southern California serving clients on a regional as well as national basis.
"The MCS Property & Casualty Division is committed to exceeding customer expectations by providing superior service and cutting-edge technology. Our staff of experienced talent is comprised of top quality professionals that provide our clients with expertly designed comprehensive and cost-effective insurance programs.
"Please visit our website at www.mcsins.com for a complete summary of Millennium Corporate Solutions' client services."
At trial, NHC's insurance industry expert, Greg Robson, opined the announcement was "very unusual . . . in that it was sent by the employer as opposed to the producer and it clearly was soliciting and advertising." After the solicitation was sent, 22 clients left NHC, and 18 of these 22 clients switched brokers from NHC to Millennium. All 18 former clients received Millennium's solicitation.
Several former NHC clients contacted Lopez as a direct result of receiving the solicitation. Frank Amason, president of McKenna Engineering & Equipment Company, testified that prior to receiving the solicitation, he had never heard of Millennium and did not know that Lopez had left NHC. He contacted Lopez after receiving the solicitation. Amason testified that one of the main factors in his decision to move his insurance policies to Millennium was Lopez's knowledge of his insurance policies. Ronald A. Pringle, president of Sandy Pringle Associates, called Lopez after he received the solicitation. He asked her who would take care of him because "I [had] a rather specific type of business and my insurance requirements were unusual."
Similarly, Connie Pernicone, vice-president and controller of Pinnacle, testified she did not know Lopez had moved to Millennium until she received the solicitation. She switched Pinnacle's policies to Millennium because "[w]e had to go where a broker went that we had a relationship with because we had to continue our business and have personal contact retained for the information we might need." She made the decision to switch only after receiving the solicitation.
Jane Klein, the vice-president of the Bedford Group (Bedford), testified that prior to receiving the solicitation, she had never heard of Millennium except as a bonding company. Charles Quarles, president of Bedford, testified he switched to Millennium because of Lopez's expertise in dealing with developers and her "personal touch." Bedford and Pinnacle were NHC's two largest clients.
As a result of the client switches, NHC presented evidence it lost approximately $501,516.65 in annual commission income. Sherry Acosta, the accounting manager for NHC, calculated this figure based upon the 2005 commissions paid by the 18 clients. NHC also introduced income statements prepared by Acosta showing its revenues and expenses in 2003, 2004, and 2005. From these income statements, a jury could determine NHC lost about $101,627.57 in contingency revenues based upon the difference between average contingency income in 2004 and 2005 and the lower contingency income in 2006. Acosta admitted that determining the amount of contingency loss would be a "guess" as "contingency is a very complicated issue." Collinge testified that many things can affect whether an agency will receive contingency revenue such as loss ratios or number of claims being made in a particular year, and there is no guarantee that NHC will receive a contingency from any given insurance carrier year to year.
Robson opined that an appropriate valuation multiplier for the value of NHC would be between 1.4 to 1.7 times annual commissions. During closing argument, NHC's counsel argued that on the misappropriation of trade secrets claim, the jury should award NHC damages in the amount of 1.5 times the annual commissions lost.
On December 16, 2005, NHC filed a complaint for damages against, among others, Lopez and Millennium. NHC alleged claims against Lopez for breach of fiduciary duty and conversion (collectively the embezzlement claims). It alleged claims against Lopez and Millennium for misappropriation of trade secrets and for interference with prospective economic advantage. As to the misappropriation claim, NHC alleged that "confidential information regarding NHC's clients, including names, addresses, phone numbers, policy types, coverage limits, premium amounts, and renewal dates . . . all . . . constitute[d] NHC's trade secrets." As to the interference claim, NHC alleged that Millennium and Lopez "interfered with these potentially lucrative relationships by using NHC's confidential and trade secret information to contact NHC's clients and induce them not to renew their policies using NHC's services." NHC did not describe any confidential, nontrade secret information allegedly misused by NHC.
Prior to trial, Millennium moved to bifurcate on the grounds (1) that NHC's misappropriation of trade secret case was unrelated to NHC's embezzlement claims against Lopez, and (2) that the facts of the embezzlement claims would bias the jury against Millennium. The trial court denied the motion, stating, "I'll be giving a jury instruction . . . at the beginning of the trial indicating to the jurors that we have two cases which are separate and independent and they should try them separately."
The subsequent trial lasted seven weeks. After the evidence was presented and before the jury was instructed, Millennium objected to a proposed jury instruction on negligent interference with prospective economic advantage on the ground that the complaint asserted a claim for intentional interference. NHC contended it could amend its pleadings to conform to proof because it "submitted evidence which suggests that Millennium did not take appropriate actions to determine if any of the people that Millennium was contacting were NHC clients." The trial court agreed with NHC, and instructed the jury on both intentional and negligent interference.
On the individual claims against Lopez, the jury found Lopez liable for breach of fiduciary duty and conversion. The jury awarded NHC damages only on the breach of fiduciary duty claim, in the amount of $210,978.44. The jury found Lopez not liable on the interference claims.
As to Millennium, the jury found Millennium liable for negligently interfering with NHC's prospective economic relationship with 18 of NHC's 22 former clients. Specifically, the jury found that "Millennium engage[d] in wrongful conduct by using NHC's confidential and trade secret information to contact and solicit NHC's clients and induce them not to renew their policies using NHC's services." The jury further found that NHC's "[p]ast economic loss, including lost profits," on this claim was $615,356.30.
The jury was initially deadlocked on the misappropriation claim. Before the jury reached a verdict on this claim, NHC and Lopez entered into a settlement which, as stated in open court, applied "to Sherry Lopez's liability only" and was for "all causes of action" against her. NHC's counsel stated that "[a]n acknowledgment of satisfaction will be filed immediately upon the successful transfer of all Sherry Lopez's interest in NHC back to Nancy Collinge."
Subsequently, the jury found (1) that Lopez and Millennium misappropriated NHC's trade secrets, (2) that information relating to NHC's clients' insurance policies (including the insurance company, policy type, policy limits, renewal dates, and amount of premiums) was a trade secret, (3) that the misappropriation caused NHC to lose 18 clients, and (4) that the misappropriation caused an "actual loss" of $410,237.60. On this claim, the jury was instructed that actual loss was the "gross amount NHC would have received but for [the wrongful] conduct, . . . subtracted] [by] the expenses NHC would have had if [the wrongful] conduct had not occurred."
Millennium filed a motion for a new trial on the ground that the damages award was excessive and duplicative because (1) the negligent interference claim was not viable as it was preempted by CUTSA, (2) the jury's verdict was fatally inconsistent, and (3) there was insufficient evidence to support the jury's findings on causation and damages. Millennium also filed a separate motion for a JNOV on the ground of insufficient evidence. The trial court ruled that unless NHC agreed to a reduction of its damages from $1,025,593.90 to $750,000, the court would grant Millennium's motion for a new trial on the ground that the damages award was excessive. NHC accepted the remittitur, and a money judgment was entered against Millennium in the amount of $750,000. Millennium appealed from the judgment.
In the same order deciding the motion for a new trial, the trial court addressed Millennium's motion for an order requiring NHC to file a partial satisfaction of judgment in favor of Millennium. Millennium contended that it was not liable on the misappropriation claim or that under Code of Civil Procedure section 876, subdivision (a), it was entitled to a pro rata credit of half of the damages on the misappropriation claim (or $205,118.83) because NHC filed an acknowledgment of full satisfaction of judgment in favor of Lopez. NHC opposed the motion on the ground that the parties to the Lopez settlement specifically agreed that the settlement would not affect the liability of Millennium on any causes of action. It admitted that "[t]he assets obtained by NHC in the settlement are of an indeterminate amount." However, at the hearing on the motion, NHC's counsel stated that "I would make an offer of proof to the court that if the court would like to see further evidence [on the settlement value], that we have further briefing on that." NHC's counsel then indicated how the settlement amount could be calculated, and after providing some estimates, stated that "[s]o at most we have $230,000 that NHC received from the settlement."
All further statutory citations are to the Code of Civil Procedure, unless otherwise stated.
Section 876, subdivision (a), provides: "The pro rata share of each tortfeasor judgment debtor shall be determined by dividing the entire judgment equally among all of them."
The trial court held that Millennium was entitled to a credit of $205,118.83 because the "settlement amount of the assets transferred by Lopez to NHC was indeterminate." (See Dillingham Construction, N.A., Inc. v. Nadel Partnership, Inc. (1998) 64 Cal.App.4th 264, 287 ["[W]here the settling parties have failed to allocate [the settlement amount], the trial court must allocate in the manner which is most advantageous to the nonsettling party."].)
NHC moved for reconsideration on the ground that it "was not given an opportunity to present evidence of the value of the settlement as a result of NHC's counsel's trial schedule and manipulative tactics by Millennium." In the motion, NHC asserted that the value of the settlement proceeds was $262,918.44. NHC also alleged that its counsel was previously unable to determine the settlement value as he was overburdened by Millennium's other posttrial motions as well as preparing for trial in another matter. Millennium opposed the motion on the ground that the motion presented no new facts as the value of the settlement could have been determined by NHC's counsel previously. It also contended that the explanation for the delay was unsatisfactory as NHC's counsel was not a sole practitioner. The trial court reversed its prior decision on the ground that NHC had provided new or different facts and a satisfactory explanation for its failure to produce them previously. The court awarded Millennium a pro tanto credit for the Lopez settlement in the amount of $26,495.76. Millennium appealed this order.
On appeal, Millennium contends: (1) the trial court should have bifurcated NHC's embezzlement claims against Lopez from its misappropriation of trade secret claims; (2) the court should have granted the motion for a new trial as to the negligent interference claim because that claim was preempted by CUTSA; (3) the court should have granted the motion for a JNOV as the jury's findings on causation and damages were not supported by the evidence; and (4) the money judgment should have been reduced by a pro rata credit of $205,118.83. We conclude (1) the trial court did not abuse its discretion in denying the bifurcation motion, (2) the negligent interference claim is preempted by CUTSA, (3) there was sufficient evidence to support the jury's findings on causation and damages, and (4) the court did not err in calculating the offset credit. We address each conclusion in turn.
I. Motion to Bifurcate
Millennium contends the court abused its discretion by denying its motion to bifurcate NHC's claims for misappropriation of trade secrets against Millennium and Lopez from its embezzlement claims against Lopez. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 911 [orders on bifurcation motion reviewed for abuse of discretion].) According to Millennium, the court should have bifurcated the claims because (1) NHC's trade secrets claims was unrelated to its embezzlement claims against Lopez; and (2) the embezzlement claims consisted of "highly charged, inflammatory and emotional testimony" that may have biased the jury against Millennium. We find no abuse of discretion. Although NHC's claims were unrelated, several witnesses including Collinge and Lopez were important and necessary to both sets of claims. A separate trial would have incurred additional time and costs. In addition, we find no prejudice to Millennium. The trial court instructed the jury that the cases were separate, and the jury's verdict indicates it was not inflamed by the embezzlement claims. Had the jury been unduly influenced by evidence that Lopez stole money from Collinge while the latter was suffering from cancer, presumably it would have found Lopez liable on all claims. Instead, the jury found Lopez liable for damages only on the breach of fiduciary claim. On this record, the trial court did not abuse its discretion in denying Millennium's motion to bifurcate trial.
II. CUTSA Preemption
Millennium was found liable for negligent interference with prospective economic advantage and for misappropriation of trade secrets. Millennium contends the jury's verdict on negligent interference should be stricken as that claim is preempted by CUTSA. We agree.
We also conclude that Millennium did not forfeit this claim by failing to plead preemption in its answer or by proposing a special jury instruction on the interference claim. Millennium timely raised the preemption argument in its motion for a new trial and appeals from the conditional grant of that motion. In any event, this court may review an issue of law raised for the first time on appeal where the facts related to that issue are undisputed. (Hughes v. Blue Cross of Northern California (1989) 215 Cal.App.3d 832, 853.) As discussed later, the facts related to preemption are undisputed.
CUTSA provides certain remedies for misappropriation of trade secrets. It explicitly provides that its "general purpose [is] to make uniform the law with respect to the subject of this title . . . ." (Civ. Code, § 3426.8.) It also provides that "other civil remedies that are not based upon misappropriation of a trade secret" are not affected by CUTSA. (Civ. Code, § 3426.7, subd. (b)(2).) In K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939 (K.C. Multimedia, Inc.), the appellate court interpreted Civil Code section 3426.7, subdivision (b)(2) to preempt common law claims that are "'based on the same nucleus of facts as the misappropriation of trade secrets claim.'" (K.C. Multimedia, Inc., at p. 958.) In that case, the appellate court affirmed the pretrial dismissal of causes of action for breach of confidence, interference with contract, and unfair competition because the trial court properly found that these claims "'hinge[d] upon the factual allegation that [defendants] misappropriated [appellant's] trade secrets.'" (Id. at p. 959.)
NHC contends that its negligent interference claim is not preempted by CUTSA because the claim could be based upon misuse of confidential, nontrade secret information. However, NHC has never identified any confidential information used by Millennium to interfere with NHC's prospective economic relationships with its former clients that it did not also contend constituted trade secrets. Rather, NHC alleged in its complaint and argued at trial that Millennium misused confidential information about NHC's customers, including their identities and insurance needs, to solicit the clients and induce them to switch brokers. The use or disclosure of confidential customer lists, containing "'pricing information and knowledge about [the] particular . . . needs of customers,'" used by former employees of a company to solicit former customers of the company, constitutes a misappropriation of trade secrets. (Morlife, Inc. v. Perry (1997) 56 Cal.App.4th 1514, 1521.) NHC asked the jury to find such information constituted trade secrets and the jury did so, further finding a misappropriation of such trade secrets. (See K.C. Multimedia, Inc., supra, 171 Cal.App.4th at p. 954 ["[T]he determination of whether a claim is based on trade secret misappropriation is largely factual."].) Thus, NHC's negligent interference claim hinged upon the factual allegation that Millennium misappropriated NHC's trade secrets. Because the negligent interference claim involved "'the same nucleus of facts as the misappropriation of trade secrets claim'" (id. at p. 958), it was not independently viable. Accordingly, Millennium could be liable only on the misappropriation of trade secrets claim.
In light of our decision, we need not address Millennium's other contentions related to this claim.
III. Sufficiency of the Evidence
Millennium next contends there was insufficient evidence to support the jury's findings on causation and damages as to the misappropriation claim. We address each jury finding separately.
The jury found that "Millennium's misappropriation of information relating to NHC's client's insurance policy [was] a substantial factor in causing [NHC] actual loss." Millennium contends NHC did not present competent evidence as to why its former clients left and why it did not attempt to retain these clients. We review a challenge to a jury's finding under the substantial evidence rule. If there is substantial evidence in the record to support the jury's finding, we will affirm. (Saks v. Charity Mission Baptist Church (2001) 90 Cal.App.4th 1116, 1132.)
Here, there was evidence that all 18 of NHC's former clients switched insurance brokers from NHC to Millennium after they received the solicitation sent by Millennium announcing Lopez's employment. Several former NHC clients testified they did not know Lopez had moved to Millennium before receiving the solicitation. These clients contacted Lopez as a direct result of the solicitation. Some clients testified they switched to Millennium because Lopez knew their business needs and insurance requirements. NHC had alleged, and the jury found, that this information constituted NHC's trade secrets. A reasonable jury could infer from these facts that but for the solicitation by Millennium and the use of NHC's trade secrets by Lopez, the former customers would have remained with NHC. We next turn to the damages awarded by the jury.
Initially, we must address the trial court's remittitur because generally, an appeal challenging the sufficiency of a damages award looks to the damages amount awarded by the remittitur, not to the amount found by the jury. (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 688-689.) The trial court issued an order granting Millennium's motion for a new trial unless NHC consented to a remittitur reducing the damages against Millennium from the $1,025,593.90 awarded by the jury on both the misappropriation and interference claims to $750,000. In light of our decision that the interference claim is no longer viable, and the fact that the jury's damages award on the misappropriation claim was only $410,237.60, the court's order is now an additur, in that it increases the amount of damages. As such, it is invalid as the court was not empowered to issue an additur in the absence of a motion by NHC for a new trial on the ground of inadequate damages. (See § 657 [grounds for new trial]; Girch v. Cal-Union Stores, Inc. (1968) 268 Cal.App.2d 541, 547.) Accordingly, the trial court lacked statutory authority to issue its order, and the order must be vacated. The effect is that the jury's damages award is reinstated.
The jury found the actual loss from the misappropriation of trade secrets to be $410,237.60. In determining this figure, the jury was instructed that actual loss is the "gross amount NHC would have received but for [the wrongful] conduct, . . . subtract[ed] [by] the expenses NHC would have had if [the wrongful] conduct had not occurred." "[A]s with any other pecuniary remedy, there must be some reasonable basis for the [jury's] computation" of damages on a CUTSA claim. (Ajaxo Inc. v. E*Trade Financial Corp. (2010) 187 Cal.App.4th 1295, 1305.)
After reviewing the record, we conclude substantial evidence supports the jury's computation of the damage amount. An exhibit prepared by Acosta showed NHC received $501,516.55 in annual premiums from the 18 lost clients. The income statements prepared by Acosta show that NHC earned approximately $101,627.57 in annual contingency income for all of its clients. NHC's two largest clients at that time, Pinnacle and Bedford, were among the 18 clients that switched to Millennium. The income statements also show that the "Total SELLING EXPENSE" was $103,719.58 in 2003, $255,845.90 in 2004, and $114,133.59 in 2005, for an average selling cost of $157,892. These revenue and cost figures allowed the jury to agree upon a damages amount of between $245,671 (annual commissions, no contingency income, subtracting the highest selling cost figure) to $499,424 (annual commissions, plus average contingency revenue, subtracting lowest selling cost figure). The jury's finding on damages was within this range, and is thus supported by substantial evidence. Accordingly, the jury's verdict was supported by sufficient evidence, and the trial court did not err in denying Millennium's motion for a JNOV.
IV. Offset Credit to Money Judgment for Settlement by Joint Tortfeasor
Millennium is liable for $410,237.60 in damages on the misappropriation claim, plus any applicable costs, fees, and interest. Because of the Lopez settlement, Millennium was entitled to an offset credit. The trial court initially found that Millennium was entitled to a credit of $205,118.83. NHC moved for reconsideration, and the trial court agreed, reducing the offset credit to $26,495.76. Millennium challenges the trial court's order reducing the offset credit on both procedural and substantive grounds. Millennium contends the trial court abused its discretion in granting NHC's motion for reconsideration because: (1) NHC's motion did not comply with the mandatory requirements of section 1008; and (2) the court's prior order was legally correct.
A. New or Different Facts
Under section 1008, a party may move for reconsideration of a court order "based upon new or different facts, circumstances, or law." (§ 1008, subd. (a).) "The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time. [Citation.]" (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) Here, NHC provided new facts about the settlement value and an explanation for why it did not produce these facts previously. The trial court found the evidence credible and the explanation satisfactory. In addition, the value of the settlement amount was not in the trial record, and could not easily be calculated by evidence produced at trial. (Cf. New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213 [evidence was not "new" where it could be discovered or produced at trial].) Moreover, at the hearing on the prior order, NHC's counsel had requested an opportunity to further brief the court on the settlement value, but the court had denied the request. (Cf. Glade v. Glade, supra, 38 Cal.App.4th at p. 1457 [trial court should have granted motion for reconsideration where appellant was denied opportunity to speak with court].) On this record, NHC complied with the requirements of section 1008.
B. Amount of Offset Credit
Millennium contends the trial court should not have reconsidered its prior order because that order was correct. However, the correctness of a prior order does not prohibit the court from reconsidering the order and issuing another valid order. Here, the trial court ordered that the settlement amount first be used to satisfy the individual judgment against Lopez on the breach of fiduciary claim, and then be applied to the joint judgment on the misappropriation claim. This order comports with the hierarchy of interests in multi-party litigation: "[f]irst in the hierarchy is maximization of recovery to the injured party for the amount of his injury to the extent fault of others has contributed to it." (Sears, Roebuck & Co. v. International Harvester Co. (1978) 82 Cal.App.3d 492, 496; see also McCall v. Four Star Music Co. (1996) 51 Cal.App.4th 1394, 1399 ["[W]here fewer than all of the joint tortfeasors satisfy less than the entire judgment, such satisfaction will not relieve the remaining tortfeasors of their obligation under the judgment. Stated otherwise, 'partial satisfaction has the effect of a discharge pro tanto.' [Citations.]"].) NHC received a judgment of $210,978.44 against Lopez on the breach of fiduciary claim, and of $410,237.60 against Millennium and Lopez on the misappropriation claim, and was entitled to any applicable costs, fees, and interest. The court's order would allow NHC to fully recover on the judgment. In addition, there was no prejudice to Millennium because as a joint tortfeasor, Millennium was individually liable for the full amount of damages on the misappropriation claim. (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 582.) Thus, the trial court did not abuse its discretion in granting the motion for reconsideration and reducing the offset credit to $26,495.76.
The order granting the motion for reconsideration and awarding a pro tanto credit is affirmed. The judgment is affirmed in part, reversed in part, and remanded for further proceedings to recalculate the amount of the money judgment in light of this opinion. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J. We concur: WILLHITE, Acting P. J. SUZUKAWA, J.