(Alameda County Super. Ct. No. H2046727). Trial Judge: Hon. Yolanda Northridge.
The opinion of the court was delivered by: Kline, P.J.
CERTIFIED FOR PUBLICATION
This is the third appeal in a case arising from the death of Lucilla Amaya in an incident with the Union City police. A jury found the City of Union City and Officer Tod Woodward liable for negligence and battery, and apportioned the negligence 45 percent to the city, 50 percent to the officer and 5 percent to Lucilla. This court upheld the finding of liability against Woodward for unreasonable use of force and against the city under principles of vicarious liability, but reversed the jury‟s verdict against the city based on its direct negligence. We remanded with directions for the trial court to "enter a new judgment consistent with the jury‟s verdict against [the officer] and this opinion." The trial court held that our decision required the plaintiffs‟ recovery to be reduced by 45 percent. The plaintiffs appealed, and we agreed with their contention that the trial court instead should have apportioned the 45 percent liability initially attributed to the city between Woodward and Lucilla, in the proportion established by the jury‟s verdict, making the officer responsible for 91 percent of the liability and Lucilla responsible for 9 percent. The trial court entered judgment in accordance with our opinion and awarded postjudgment interest from the date of the original judgment. The City of Union City and Woodward (collectively appellants) now urge that the trial court should have awarded interest only from the date of the most recent judgment. We affirm.
STATEMENT OF THE CASE AND FACTS
The factual background of this case is recited at length in our first opinion, Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1083-1093 (Munoz I). In brief, Lucilla Amaya was shot and killed in 1998 by Union City police officer Tod Woodward, who had been summoned to the house in which Lucilla, under the influence of methamphetamine and armed with two knives, was located with her daughter and father. Woodward shot Lucilla when she made a movement that he testified led him to believe she was going to kill her daughter and father.
At the jury trial, plaintiffs claimed Woodward was negligent both because of the manner in which he supervised the police response and because he personally used deadly force. (Munoz I, supra, 120 Cal.App.4th at p. 1094.) They also sought to hold Union City liable under the doctrine of vicarious liability, based on Woodward‟s fault, and separately for the city‟s direct negligence in selecting, training, supervising and disciplining police officers, and failing to promulgate procedures to guide police response to situations such as presented here. (Id. at pp. 1110-1112.) The jury returned a verdict against both defendants, apportioning the fault 50 percent to Woodward, 45 percent to the city and 5 percent to Lucilla. (Id. at p. 1083.) Judgment was entered on May 14, 2001. (Ibid.)
The majority in our prior opinion affirmed the judgment against Woodward on the basis of the jury‟s finding of unreasonable use of force. (Munoz I, supra, 120 Cal.App.4th at p. 1101.) It was conceded that Union City was liable for the judgment against Woodward under the doctrine of vicarious liability. (Id. at p. 1110.) We held, however, that the judgment against Union City based on its direct negligence could not be sustained because this theory of liability was not grounded upon a violation of a statutory duty by the public entity. (Id. at p. 1082; Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175 (Eastburn).)
On remand, plaintiffs argued to the trial court that Munoz I removed Union City from the universe of tortfeasors because of its sovereign immunity, requiring the portion of fault erroneously allocated to the city to be allocated between the remaining tortfeasors, Woodward and Lucilla. (Munoz v. City of Union City (2007) 148 Cal.App.4th 173, 177 (Munoz II).) Union City argued that its 45 percent portion of the liability could not be reallocated to Woodward and the plaintiffs‟ judgment had to be reduced by that amount. (Id. at p. 177.) The trial court ultimately agreed with the city, reasoning that, although sovereign immunity limited the plaintiffs‟ ability to collect damages from the city for policy reasons, this did not change the fact that the city was responsible for part of what occurred at the Amaya residence. (Id. at pp. 181-182.) The trial court entered a revised judgment against Woodward for 50 percent of the plaintiffs‟ damages. (Id. at pp. 177-178.) Union City paid the judgment against Woodward with interest from the date of the original judgment.
In Munoz II, we held that the trial court erred in reducing plaintiffs‟ judgment because, under Eastburn, supra, 31 Cal.4th 1175, in the absence of a statutory basis for liability, the city was not a tortfeasor, meaning there was no basis for allocating a portion of the plaintiffs‟ damages to the city. (Munoz II, supra, 148 Cal.App.4th at p. 182.) Union City urged us to remand for retrial on the allocation of damages, arguing that this court could not speculate as to how the jury would have allocated fault if Woodward had been the only defendant. (Id. at pp. 182-183.) We concluded, however, that there was no rational basis upon which the jury could have viewed the presence or absence of Union City as a defendant as altering Woodward‟s and Lucilla‟s respective responsibility. (Id. at p. 184.) Since the jury‟s allocation of 50 percent of the liability to Woodward and 5 percent to Lucilla reflected a determination that Woodward was 10 times more responsible than Lucilla, we held the plaintiffs‟ damages should be allocated in the same ratio, 91 percent to Woodward and 9 percent to Lucilla. (Ibid.) Our disposition stated: "The judgment is reversed and the matter remanded to the trial court, with directions to enter a new judgment apportioning liability 9 percent to Lucilla and 91 percent to Woodward." (Munoz II, at p. 186.)
Back in the trial court, plaintiffs filed their motion for entry of a new judgment, seeking postjudgment interest from May 14, 2001, the date of the original judgment. Union City opposed the motion with respect to the start date for the interest award. On December 10, 2007, the court granted the plaintiffs‟ motion and awarded interest from the date of the original judgment. Notice of entry of judgment was served on January 10, 2008.
Union City and Woodward filed a timely notice of appeal on March 10, 2008.
"A judgment bears legal interest from the date of its entry in the trial court even though it is still subject to direct attack. (Bellflower City School Dist. v. Skaggs [(1959)] 52 Cal.2d 278, 280.) 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. (Beeler v. American Trust Co. [(1946)] 28 Cal.2d 435, 438; Barnhart v. Edwards [(1900)] 128 Cal. 572, 575; 1 A.L.R.2d 479, 510-512, 520-521.) 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. (Cowdery v. London etc. Bank [(1903)] 139 Cal. 298, 303.)" (Stockton Theatres, Inc. v. Palermo (1961) 55 Cal.2d 439, 442-443 (Stockton).) The question when interest begins depends on "the substance of the order" and not "mere formalism." (Snapp v. State Farm Fire & Cas.Co. (1964) 60 Cal.2d 816, 821 (Snapp v. State Farm).) Thus, "a "reversal‟ that practically and legally is a "modification,‟ should be treated for purposes of the accrual of interest as a modification." (Id. at pp. 821-822.)
In Stockton, the trial court had allowed certain costs on appeal sought by the plaintiff but disallowed one item, the cost of a surety bond. The plaintiff successfully appealed. The reviewing court held the bond premium could be included in costs if it was reasonably necessary to preserve appellate rights. The trial court‟s order was reversed and the court directed to determine whether the bond was necessary and, if so, include the premium as an item of costs. (Stockton, supra, 55 Cal.2d at pp. 440-441.) After a hearing at which both parties offered evidence, the trial court concluded the bond was not necessary and again denied the item of costs. A second appeal was again successful, the appellate court ruling that the evidence demonstrated as a matter of law that the bond was necessary. (Id. at p. 441.) The trial court‟s order was reversed and the trial court directed to allow the bond premium as a cost on appeal. (Ibid.) The trial court did so, ...