Chodos v. Borman , 239 Cal. App. 4th 707 ( 2015 )

Filed 8/18/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
HILLEL CHODOS, B260326
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. SC107421)
v.
NAVABEH P. BORMAN,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Barbara Ann Meiers, Judge. Affirmed as modified.
The Law Offices of Philip Kaufler, Philip Kaufler for Plaintiff and Appellant
Hillel Chodos.
The Law Offices of Ronald Richards & Associates, Ronald N. Richards and
Nicholas A. Bravo for Defendant and Respondent Navabeh P. Borman.
INTRODUCTION
Plaintiff and appellant, attorney Hillel Chodos1 (attorney), appeals from the
revised judgment entered by the trial court following this court’s reversal with
instructions to enter a new judgment in Chodos v. Borman (2014) 227 Cal. App. 4th 76
(Chodos I). Originally, on September 19, 2013, the trial court entered a judgment for
attorney for the value of legal services, which comprised the lodestar amount of $1.8
million found by the jury, plus a multiplier, resulting in a total amount awarded of $7.8
million with two stipulated adjustments. In finding the multiplier inappropriate, we
ordered the trial court to enter a new judgment in the amount of the $1,717,921—the
lodestar with the two stipulated adjustments.
Attorney contends that the trial court erred when it failed to include postjudgment
interest in the final judgment, with interest to run on the $1,717,921 from September 19,
2013, the date of the original judgment. Defendant and respondent Navabeh Borman
(client) argues that interest should only run from the date of entry of the judgment
following remittitur, November 14, 2014. Additionally, attorney asserts that the trial
court erred because its modified final judgment failed to provide for recovery of
attorney’s trial court costs of $12,983.99, and for interest on those costs from September
19, 2013.
We hold that interest ran on the $1,717,921 judgment from the date of the original
judgment—September 19, 2013—and that attorney is entitled to the costs claimed and
interest on those costs from that date. Accordingly, we modify and affirm the judgment
to reflect our holding.
1
After this matter was fully briefed, Mr. Chodos passed away.
2
FACTUAL BACKGROUND
Attorney represented client “in two divorce cases and a related Marvin[2] action
without a statutorily required written hourly or contingency fee agreement, [and
thereafter] sued his client [in a quantum meruit action] for the reasonable value of the
services he rendered in the three cases.” (Chodos I, supra, 227 Cal.App.4th at p. 82).
The jury awarded attorney $7.8 million by special verdict, finding a reasonable hourly
rate of $1,000 per hour, a reasonable number of hours expended on the two divorce cases
and the Marvin action of 1,800, and a multiplier of five. On September 19, 2013, the trial
court, in accordance with the jury’s special verdict, entered a final judgment for attorney
of $7,717,421,3 reflecting two stipulated adjustments deducting the costs paid to attorney
for his work on the three actions and adding attorney’s out-of-pocket costs. On
September 24, 2013, attorney filed a memorandum of costs setting forth his trial court
costs, which client did not challenge.
Client appealed from the judgment in Chodos I, supra, 227 Cal.App.4th at page
82, contending, inter alia, that the trial court erred by instructing the jury that it could
apply a multiplier to the lodestar amount.4 We determined that, as a matter of law, the
2
“In Marvin v. Marvin (1976) 18 Cal. 3d 660, 670-671 [134 Cal. Rptr. 815, 557 P.2d
106] (Marvin), the California Supreme Court held that express or implied contracts
between persons living together in a nonmarital relationship should be enforced, unless
the contracts were explicitly founded on the consideration of meretricious sexual
services.” (Chodos I, supra, 227 Cal.App.4th at p. 82, fn. 1.)
3
As pointed out in the opening brief, the amount of the original judgment should
have been $7,717,921.
4
“‘In so-called fee shifting cases, in which the responsibility to pay attorney fees is
statutorily or otherwise transferred from the prevailing plaintiff or class to the defendant,
the primary method for establishing the amount of “reasonable” attorney fees is the
lodestar method. The lodestar (or touchstone) is produced by multiplying the number of
3
multiplier was not appropriate and therefore that the instruction allowing the jury to
award a multiplier was erroneous.
Our disposition in Chodos I, filed on June 18, 2014, read as follows: “The
judgment is reversed and the matter is remanded to the trial court with instructions to
enter a new judgment based on that portion of the special verdict form that awarded the
attorney a $1.8 million lodestar amount based on the jury’s finding of a reasonable hourly
rate of $1,000 and a reasonable number of hours expended on the two divorce cases and
the Marvin action of 1,800. As it did in the original judgment, the trial court shall make
adjustments to the $1.8 million award by adding the amount of $24,921 and deducting the
amount of $107,000. Client shall recover her costs on appeal.” (Chodos I, supra, 227
Cal.App.4th at pp. 105-106.)
We issued a remittitur on November 4, 2014, and two days later, attorney filed an
ex parte application for entry of a revised judgment. Attorney’s ex parte application
sought, inter alia, postjudment interest on the trial court’s revised final judgment and on
his trial court costs incurred in his quantum meruit action at 10 percent per annum from
September 19, 2013. Client filed an opposition to attorney’s ex parte application, and on
November 6, 2014, the trial court issued a minute order stating, “The court declines to
hear the matter raised by [attorney’s] Ex Parte Application since there is no showing of
any urgency much less an emergency.”
On November 14, 2014, the trial court entered a new final judgment of $1,717,921
in attorney’s favor, noting that “[a]ny previously issued Judgment in this case ha[s] been
vacated and set aside by virtue of an order by the Court of Appeal . . . .” Attorney filed
an appeal on November 25, 2014, contending that the postjudgment interest in the
judgment should have run from September 19, 2013, not from November 14, 2014, at 10
percent per annum, and that he should be awarded trial costs from Chodos I, supra, 227
Cal. App. 4th 76 of $12,983.99, with interest thereon from September 19, 2013.
hours reasonably expended by counsel by a reasonable hourly rate.’ [Citation.]”
(Chodos I, supra, 227 Cal.App.4th at p. 82, fn. 2.)
4
DISCUSSION5
I. Standard of Review
The principal issue on appeal is whether attorney is entitled to postjudgment
interest on the revised judgment and on his trial court costs from the date of entry of the
original judgment or only from the date of entry of the revised judgment. Code of Civil
Procedure section 685.020, subdivision (a) provides in part that “interest commences to
accrue on a money judgment on the date of entry of the judgment.”6 The date from
which interest should run and the interest rate “are questions of law, which we review de
novo.” (Roden v. AmerisourceBergen Corp. (2010) 186 Cal. App. 4th 620, 658 (Roden).)
The legal question of whether attorney is entitled to interest at the statutory rate from the
date of entry of the trial court’s original judgment depends on whether our holding in
Chodos I, supra, 227 Cal. App. 4th 76 was in legal effect a modification or a reversal of
the trial court’s original judgment. (Snapp v. State Farm Fire & Cas. Co. (1964) 60
Cal. 2d 816, 818.)
II. Interest on the Judgment
A judgment bears interest from the date of its entry in the trial court even though
the judgment is still subject to direct attack. (Bellflower City School Dist. v. Skaggs
(1959) 52 Cal. 2d 278, 280.) As stated in Munoz v. City of Union City (2009) 173
Cal. App. 4th 199, “‘When a judgment is modified upon appeal, whether upward or
downward, the new sum draws interest from the date of the entry of the original order,
not from the date of the new judgment. [Citations.] On the other hand, when a judgment
5
There were no oral proceedings associated with attorney’s ex parte application
regarding interest and costs. All relevant documents filed in the matter are part of the
record, and we decide a pure legal issue. Thus, the record is adequate for our review.
6
Code of Civil Procedure section 685.020, subdivision (b) contains an exception to
this rule for money judgments “payable in installments” that does not apply here.
5
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. [Citation.]’ [Citation.]” (Id.
at p. 203; see 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 333, p. 938.)
Whether an order by an appellate court is a modification or a reversal depends on
the substance and effect of that order. (Snapp v. State Farm Fire & Cas. Co., supra, 60
Cal.2d at p. 821; see Lucky United Properties Investment, Inc. v. Lee (2013) 213
Cal. App. 4th 635, 653.) An appellate court order is “a reversal in the legal sense” when it
reverses the trial court and remands an issue to the trial court for further hearing and
factfinding necessary to the resolution of the issue forming a basis for appeal. (Stockton
Theatres, Inc. v. Palermo (1961) 55 Cal. 2d 439, 441, 444.) The reversal of a trial court
judgment on grounds of insufficient evidence is also a substantive reversal. (Ehret v.
Congoleum Corp. (2001) 87 Cal. App. 4th 202, 210.) Furthermore, when a “trial court
ha[s] no authority to award damages at th[e] point” when the award is made, a reversal on
appeal is a substantive reversal. (Roden, supra, 186 Cal.App.4th at p. 660.) In Roden,
the Court of Appeal had reversed the award of damages entirely because the trial court
had no authority to award damages at the time the award was made. (Ibid.)
When, however, an order stated in terms of reversal amends a trial court order on
remand to “state what it should have stated on th[e] date” of the original order, it is “in
law and in fact, a modification.” (Stockton Theatres, Inc. v. Palermo, supra, 55 Cal.2d at
pp. 443-444.) An order can be “couched in terms of a reversal with directions . . . [but
have] the legal and practical effect of modifying the original award.” (Id. at p. 444.)
Language in an appellate court order that “purportedly set[s] aside the original findings
and award, [and] which is inconsistent with the actual effect of the decision, should be
disregarded.” (Myers v. Workmen’s Comp. App. Bd. (1969) 2 Cal. App. 3d 621, 630.)
In Snapp v. State Farm Fire & Cas. Co., supra, 60 Cal.2d at page 818, for
example, our Supreme Court held that an appellate court order providing that “the
judgment is reversed with directions to enter a judgment for plaintiffs in the amount of
$25,000” was in legal and practical effect a modification when the trial court had
originally entered a judgment for plaintiffs in the amount of $8,168.25. The Supreme
6
Court noted that “since the appellate court on the first appeal decided that not $8,168.25
but $25,000 was due as a matter of law, and no further proceedings were required, it
could and perhaps should have formally modified the first judgment . . . .” (Id. at p. 821.)
If a trial court erred as a matter of law by failing to enter a judgment for costs at the time
it should have been entered, a higher court’s subsequent proper entry of such judgment
for costs is a modification, and interest runs from the date on which the judgment should
originally have been entered by the trial court. (Stockton Theatres, Inc. v. Palermo,
supra, 55 Cal.2d at pp. 443-444.)
Although our disposition in Chodos I, supra, 227 Cal. App. 4th 76 was “couched in
terms of a reversal with directions, it had the legal and practical effect of modifying the
original award.” (Stockton Theatres, Inc. v. Palermo, supra, 55 Cal.2d at p. 444.) In
effect, we ordered the trial court to modify the judgment by reducing the award to a
specified sum. The trial court entered a revised judgment in accordance with our order
and without any further factfinding proceedings. Our disposition in Chodos I was not
based on insufficient evidence or on some other basis that eliminated all damages. As in
Snapp v. State Farm Fire & Cas. Co., supra, 60 Cal.2d at page 821, our holding in
Chodos I had the effect of modifying the amount of the money judgment entered by the
trial court. We did not hold in Chodos I that attorney was entitled to no compensation for
attorney fees, but rather that attorney was entitled to a lesser specific amount due to an
error in the jury instructions at trial. (Chodos I, supra, 227 Cal.App.4th at p. 82.) In
reality, we modified the original judgment, reducing attorney’s fee recovery from
$7,717,921 to $1,717,921. Because our disposition in Chodos I was in legal and practical
effect a modification, rather than a reversal to set aside all damages, attorney is entitled to
recover interest at 10 percent per annum from September 19, 2013, the date of the
original judgment entered by the trial court.
7
III. Trial Court Costs
Attorney argues that he is entitled to recover his trial court costs of $12,983.99 as
a matter of right because client concedes that she did not challenge his memorandum of
costs of September 23, 2013; attorney was the prevailing party at trial; and the trial court
erred when it failed to award attorney’s trial court costs in its original judgment. Code of
Civil Procedure section 1032, subdivision (b) states that “[e]xcept as otherwise expressly
provided by statute, a prevailing party is entitled as a matter of right to recover costs in
any action or proceeding.” Subdivision (a)(4) of that section defines “prevailing party”
as “the party with a net monetary recovery.” Under California Rules of Court, rule
3.1700(b)(4), after the 15-day time period to file a motion to strike or to tax costs
following service of the memorandum of costs has passed, “the clerk must immediately
enter the costs on the judgment.”
Attorney timely filed and served a memorandum of costs in accordance with
California Rules of Court, rule 3.1700(a)(1). Client concedes that she did not contest
attorney’s memorandum of costs. Therefore, attorney, as the prevailing party, was
entitled to recover his trial court costs as a matter of right, and the clerk should have
entered the costs on the original judgment within 15 days after attorney served and filed
his memorandum of costs.
Attorney also asserts that he is entitled to interest at 10 percent per annum on his
trial court costs of $12,983.99 from September 19, 2013, the date of entry of the trial
court’s original judgment. “A judgment for costs should be governed by the law
applicable to judgments generally.” (Stockton Theatres, Inc. v. Palermo, supra, 55
Cal.2d at p. 443.) “Where costs are established by the judgment, but the amount of the
award is ascertained at a later time, the court clerk enters the costs on the judgment after
the amount is determined.” (Lucky United Properties Inv., Inc. v. Lee (2010) 185
Cal. App. 4th 125, 137.) The “‘[p]rincipal amount of the judgment’” is “the total amount
of the judgment as entered or as last renewed, together with the costs thereafter added to
the judgment pursuant to [Code Civ. Proc., s]ection 685.090, reduced by any partial
8
satisfactions . . . .” (Code Civ. Proc., § 680.300.) Here, the requested trial court costs
should have been entered as part of the original judgment. Those costs, if properly
entered, would not have been changed by the revised judgment, which altered only the
amount of the attorney fees award.
“Interest at the rate of 10 percent per annum accrues on the unpaid principal
amount of the judgment ([Code Civ. Proc.,] § 685.010), including the amount of the cost
award and attorney fees award ([Code Civ. Proc.,] § 680.300), as of the date of judgment
entry ([Code Civ. Proc.,] § 685.020, subd. (a)). Therefore, interest ordinarily begins to
accrue on the prejudgment cost and attorney fees portion of the judgment as of the same
time it begins to accrue on all other monetary portions of the judgment—upon entry of
judgment.” (Lucky United Properties Inv., Inc. v. Lee, supra, 185 Cal.App.4th at pp.
137-138.) We thus apply the same analysis to the trial court’s judgment awarding
attorney trial court costs as we did to the trial court’s judgment awarding attorney his
attorney fees. Having held that attorney is entitled to interest on the judgment for his
attorney fees from its original date of entry, we also hold that attorney is entitled to
interest on his trial court costs of $12,983.99 from the date of the original judgment.
9
DISPOSITION
The judgment is modified to reflect that attorney shall recover postjudment
interest from September 19, 2013, on the trial court’s final judgment and shall also
recover the trial court costs claimed in his cost memorandum. Interest on the $1,717,921
attorney fees award and the $12,983.99 in trial court costs shall be calculated at 10
percent per annum from September 19, 2013. As so modified, the judgment is affirmed.
Attorney shall recover his costs on appeal.
CERTIFIED FOR PUBLICATION
MOSK, J.
I concur:
KIRSCHNER, J.

Judge of the Superior Court of the County of Los Angeles, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
10
Hillel Chodos v. Navabeh P. Borman
B260326
TURNER, P.J., Concurring
I concur in the majority opinion. I write separately to address the inadequate
record contention of defendant, Navabeth P. Borman. After our remittitur issued,
plaintiff, Hillel Chodos, filed an ex parte motion to compel compliance with our
remittitur. According to that clerk’s minutes of the November 6, 2014 hearing, no court
reporter was present. No settled statement of the post-remittitur issuance hearing has
been provided. On November 14, 2014, the judgment was entered.
Our prior decision reversed the judgment no doubt, but the gravamen of our
opinion was to direct a modification of the judgment. We ordered that specific sums of
money be deducted from the original judgment. We did not order a hearing be held or
any issues be reconsidered. We issued no orders concerning any other calculation of
damages apart from the deductions specified in our opinion. We did not order the issue
of prejudgment interest be reconsidered. The case was over. Thus, the absence of a
reporter’s transcript or a suitable substitute of the post-remittitur issuance ex parte
hearing does not permit reversal of the judgment. And the record fails to disclose any
error on the face of the record by the trial court. (Kucker v. Kucker (2011) 192
Cal. App. 4th 90, 93 [“Since appellants have not provided a reporter’s transcript of the
hearing on the petition, ‘we must treat this as an appeal “on the judgment roll.”[]. . . .”’”];
Nielsen v. Gibson (2009) 178 Cal. App. 4th 318, 325 [when no reporter’s transcript is
provided, “review is limited to determining whether any error ‘appears on the face of the
record.’”]) The trial court did exactly as we expressly ordered it to do in our prior
opinion and properly modified the judgment.
TURNER, P. J.