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Peggy Manoogian v. San Diego Unified School District

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 2, 2010

PEGGY MANOOGIAN, PLAINTIFF AND APPELLANT,
v.
SAN DIEGO UNIFIED SCHOOL DISTRICT, DEFENDANT AND APPELLANT.

APPEALS from a postjudgment order of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed.

The opinion of the court was delivered by: McCONNELL, P. J.

Manoogian v. San Diego Unif. School Dist.

CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Super. Ct. No. GIC858498

Peggy Manoogian and San Diego Unified School District (SDUSD) appeal from the trial court's postjudgment order regarding attorney fees and costs.

The trial court found Manoogian was the prevailing party on SDUSD's cross-complaint for breach of contract and granted her attorney fees under Civil Code section 1717, but awarded her $40,000 in fees rather than her requested $500,000, reasoning that the contract cause of action was not so inseparably intertwined with her tort causes of action as to preclude apportionment. It denied SDUSD's motion for attorney fees, concluding that Manoogian's retaliation cause of action, which failed at trial, and her age discrimination cause of action and the concealment cause of action, which were summarily adjudicated in SDUSD's favor, were not unreasonable, frivolous or vexatious. The court further ruled SDUSD was not entitled to recover attorney fees because SDUSD's "success" was merely that the court struck Manoogian's contract cause of action in a demurrer, an interim motion.

Ruling on the parties' cross-motions to strike cost bills, the court found no party received any monetary benefit. It denied Manoogian's motion on grounds she was not the prevailing party under Code of Civil Procedure*fn1 section 1032 and granted SDUSD's motion as the prevailing party, but taxed SDUSD's costs, awarding it $41,251.26.

Manoogian contends the trial court abused its discretion by: (1) substantially reducing her attorney fee request upon a finding SDUSD'S cross-complaint for breach of contract was not significantly intertwined with her other causes of action; (2) striking her cost bill in its entirety and failing to tax SDUSD's cost bill because Government Code section 12965, subdivision (b) mandates that under the Fair Employment and Housing Act (FEHA, Govt. Code, § 12900 et seq.), a defendant may recover costs only if the plaintiff's claim was frivolous, unreasonable, or without foundation; and (3) awarding SDUSD costs under section 998.

SDUSD contends that the trial court abused its discretion in finding Manoogian was the prevailing party on the contract cause of action and granting her attorney fees. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Manoogian was employed by SDUSD for several years. In January 2003, she was on leave from her job as head counselor at a school when she filed her initial lawsuit alleging causes of action for age discrimination (first cause of action), race discrimination and harassment (second cause of action), failure to prevent discrimination and harassment (third cause of action), breach of contract (fourth cause of action), breach of implied covenant of good faith and fair dealing (fifth cause of action), intentional infliction of emotional distress (sixth cause of action), and negligent infliction of emotional distress (seventh cause of action).

In February 2007, she filed a third amended complaint alleging age discrimination (first cause of action), retaliation (second cause of action), and concealment (third cause of action).

In March 2007, SDUSD cross-complained for breach of contract, alleging that Manoogian signed a settlement agreement obligating her to resign or retire from employment at SDUSD by June 2004, and release all claims against SDUSD.

In April 2007, the parties stipulated to consolidate the two actions.

In September 2007, SDUSD sent Manoogian an offer to compromise under section 998 that stated in its entirety, "Pursuant to section 998 of the California Code of Civil Procedure, Defendants, [SDUSD] hereby offer[] to compromise this matter in exchange for a waiver of fees and costs. [¶] By signing below, Plaintiff, Peggy Manoogian, by and through her attorney of record, hereby accepts the terms and conditions indicated above pursuant to California Code of Civil Procedure section 998."

In March 2008, following demurrers and summary adjudications, Manoogian's retaliation cause of action and SDUSD's cross-complaint for breach of contract proceeded to jury trial. The jury found in SDUSD's favor on Manoogian's retaliation cause of action and in Manoogian's favor on SDUSD's breach of contract action.

In the first appeal, we affirmed the summary adjudication of Manoogian's causes of action for age discrimination and concealment, and the judgment on her retaliation cause of action. (Manoogian v. San Diego Unified School District (Sept. 25, 2009, D053366) [nonpub. opn.].)

DISCUSSION

Manoogian's attorney fee award was based on a provision in the parties' settlement agreement stating, "In the event of any litigation or arbitration to interpret or enforce the terms of this [r]elease, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs." The trial court determined that provision applied only to contract causes of action.

Civil Code section 1717 authorizes an attorney fees award to a prevailing party "[i]n any action on a contract . . . to enforce that contract" if the contract provides for an award of attorney fees. (Civ. Code, § 1717, subd. (a).) "[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract." (Civ. Code, § 1717, subd. (b)(1).) The trial court has broad discretion "to determine who, if anyone, is the party prevailing on the contract." (Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796, 806; see Hsu v. Abbara (1995) 9 Cal.4th 863, 871 (Hsu); Acree v. General Motors Acceptance Corp. (2001) 92 Cal.App.4th 385, 400.)

Apportionment of a fee award between fees incurred on a contract cause of action and those incurred on other causes of action is within the trial court's discretion. (See Nazemi v. Tseng (1992) 5 Cal.App.4th 1633, 1642.) "Where a cause of action based on the contract providing for attorney's fees is joined with other causes of action beyond the contract, the prevailing party may recover attorney's fees under [Civil Code] section 1717 only as they relate to the contract action." (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129 (Reynolds).) "A court may apportion fees even where the issues are connected, related or intertwined." (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1365 (El Escorial); Shadoan v. World Savings and Loan Association (1990) 219 Cal.App.3d 97, 109 (Shadoan).) However, "[a]attorney's fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed." (Reynolds, supra, at pp. 129-130.)

This court reviews an order granting or denying attorney fees for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 148 (Graciano).)

" 'Because the "experienced trial judge is the best judge of the value of professional services rendered in his court," we will not disturb the trial court's decision unless convinced that it is clearly wrong, meaning that it is an abuse of discretion.' " (Graciano, at pp. 148-149.) "The only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination." (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.)

Here, the trial court ruled, "[T]he contract claim was not intertwined with the retaliation claim at trial. [¶] The retaliation claim dealt with [Manoogian's] employment history from the late 1990's through the filing of this case. It related to evidence of the conduct of teachers and principals and other staff members. The contract issue related only to the settlement agreement which involved one small event in a series of events that went on for nearly ten years. As such the contract issue was not so entwined with the other issues that [Manoogian] is entitled to all her attorneys fees. Rather, [she] is entitled only to fees relating to the contract action. . . . [¶] The trial in this case took many days and involved many witnesses. The contract claim was a very minor part of the overall fact pattern and the case. Giving [her] the benefit of the doubt, the court finds about 10 [percent] of the total time related to the contract claim. Thus [she] would be entitled to about 10 [percent] of her total fees. However, the court feels that many of the fees are excessive. For example, [her counsel] set forth a billing rate of $350 per hour which is high for someone with only a few years of experience in employment law. Some of the entries were also vague and unclear. Thus the court finds that an award of $40,000 for the contract claims is reasonable."

I.

A.

SDUSD contends the trial court abused its discretion in finding Manoogian was the prevailing party and awarding her attorney fees because "Manoogian lost her breach of contract cause of action at the pleading stage. . . . Thus, although Manoogian prevailed on [SDUSD's] contract claim at trial, she failed to achieve a better result on her own claim based on the contract."

We reject this contention. The trial court found, in effect, that Manoogian had a simple, unqualified win on the only contract cause of action submitted to a jury, and therefore it was required to grant her attorney fees as the prevailing party.*fn2 "[W]hen the decision on the litigated contract claims is purely good news for one party and bad news for the other -- the Courts of Appeal have recognized that a trial court has no discretion to deny attorney fees to the successful litigant. Thus, when a defendant defeats recovery by the plaintiff on the only contract claim in the action, the defendant is the party prevailing on the contract under [Civil Code] section 1717 as a matter of law. [Citations.] Similarly, a plaintiff who obtains all relief requested on the only contract claim in the action must be regarded as the party prevailing on the contract for purposes of attorney fees under [Civil Code] section 1717." (Hsu, supra, 9 Cal.4th at p. 876.) The fact SDUSD prevailed on interim demurrers did not compel a conclusion it prevailed on the merits of the breach of contract claim. "The prevailing party determination is to be made only upon final resolution of the contract claims and only by 'a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.' " (Hsu, supra, 9 Cal.4th at p. 876.)

SDUSD's reliance on Cano v. Glover (2006) 143 Cal.App.4th 326, 331 is misplaced. In that case, the trial court sustained a demurrer with leave to amend, but the plaintiff did not timely amend his fourth amended complaint. Accordingly, the trial court dismissed the case, without prejudice. (Id. at pp. 328, 330.) The court of appeal ordered the case dismissed with prejudice, ruling that plaintiff's failure to amend after four attempts was an admission plaintiff could not cure the defective pleading and therefore defendant was entitled to attorney fees. (Id. at pp. 331-332.) By contrast, here, the demurrers did not result in dismissal of the case with prejudice; rather, Manoogian was granted leave to amend her pleadings and the case proceeded to trial on the merits of her retaliation cause of action and SDUSD's breach of contract cause of action.

B.

Manoogian contends the trial court erred in finding that SDUSD's contract cause of action was not significantly intertwined with her age discrimination, retaliation and concealment causes of action and thus she was entitled to all of her requested attorney fees. She argues intertwinement was shown because the parties debated the existence of the settlement agreement throughout the litigation, including in four demurrers, although she concedes the issue was not prominent at trial because the court previously had declared the settlement agreement valid as a matter of law. She further argues SDUSD's cross-complaint for breach of the settlement agreement directly caused the issue of the settlement agreement's existence, which was relevant to her FEHA claims, to be intertwined with the issue raised in the cross-complaint; SDUSD sought and obtained an order consolidating its contract claim with her FEHA claims by stipulating that both actions arose out of the same circumstances and set of facts; and if SDUSD had succeeded in its contract claim it would have sought all of its fees from her.

"Recognizing that apportionment is difficult where, as here, there is an identity of issues, we find that the trial court's apportionment was reasonable in the present case and we will not disturb it." (Shadoan, supra, 219 Cal.App.3d at p. 109.) The factors cited by the trial court supported its decision to apportion fees. It told Manoogian's counsel at the attorney fee motion hearing: "The point was your presentation of the case involved Ms. Manoogian's employment history from 1998 to whatever, 2007 essentially. Right up to the -- even during the -- after filing the complaint, you were claiming retaliation. This contract settlement issue was one incident out of 50 issues, 50 incidents. It was over one little settlement agreement and that was about very little of the evidence."

We note that the same trial judge had ruled on the demurrers, the summary adjudication motions, and presided over a combined five weeks of trial; accordingly, he was familiar with the issues raised in this case and the parties' efforts on the different causes of action. We discern no abuse of discretion because the $40,000 attorney fee award does not shock the conscience. (Track Mortgage Group, Inc. v. Crusader Ins. Co. (2002) 98 Cal.App.4th 857, 868.) The award was not insubstantial and an appellant is not automatically entitled to all hours claimed in a request for fees. Rather, an appellant must prove the hours for which fees are sought were reasonable and necessary. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816.) Manoogian has not shown the hours spent for the various issues were indivisible or that the apportionment was unreasonable. (El Escorial, supra, 154 Cal.App.4th at p. 1366.)

II.

Manoogian contends the trial court erroneously concluded SDUSD was the prevailing party for purposes of costs under section 1032, subdivision (a)(4) because her attorney fee award on the contract cause of action constituted a "net monetary recovery" for her; and SDUSD was not, in the language of section 1032, subdivision (a)(4), the only "defendant" "where neither plaintiff nor defendant recovers anything."

Both parties moved to strike or tax the other's cost bill, arguing that they were the prevailing parties under section 1032. The trial court ruled, "[N]either side won any relief. Plaintiff failed on all the relief sought relating to her employment. Defendant sought relief from plaintiff's suit by suing for breach of a prior contract. The jury rejected this claim as well. . . . Under these circumstances, defendant is the prevailing party and is entitled to costs [under section 1032, subdivision (a)(4)]." The court continued, "[T]his result is consistent with the realities of the case. Plaintiff sued defendant for retaliation and sought millions of dollars in damages. Moreover, her case on retaliation took up 90 [percent] of the time. By contrast, defendant filed essentially a defensive cross-complaint to recover damages because plaintiff had not complied with the settlement agreement filed before the case. The evidence on this issue was minimal and damages sought were less than $100,000. Under these circumstances, where no one won anything, it would be illogical to conclude plaintiff was the prevailing party simply because she won a small amount of attorney fees under the mandate of section 1717. The real winner was the defendant under the circumstances of the case. Defendant is the prevailing party."

Section 1032 provides in pertinent part: "(a) As used in this section, unless the context clearly requires otherwise: [1] 'Complaint' includes a cross-complaint. [2] 'Defendant' includes a cross-defendant or a person against whom a complaint is filed. [3] 'Plaintiff' includes a cross-complainant or a party who files a complaint in intervention. [4] 'Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. . . . [b] Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." A trial court's determination that one party in litigation was the prevailing party is reviewed for abuse of discretion. (Arias v. Katella Townhouse Homeowners Assn., Inc. (2005) 127 Cal.App.4th 847, 852.)

Attorney fees are not an item of damages, except in instances not applicable here, like false imprisonment, malicious prosecution and attorney fee disputes. (Foothill Properties v. Lyon/Copley Corona Associates (1996) 46 Cal.App.4th 1542, 1553; Mabee v. Nurseryland Garden Centers, Inc. (1979) 88 Cal.App.3d 420, 425.)

A.

Relying on Cumming v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387, Manoogian contends that under Government Code section 12965 subdivision (b), the trial court lacked the discretion to award costs to SDUSD absent a showing her FEHA claims were "frivolous, unreasonable or without foundation," and her case cannot be so characterized.

Under the FEHA, a trial court may exercise its discretion to award or deny reasonable attorney fees and costs, including expert witness fees, to a prevailing defendant in a suit under the act, except where the action is filed by a public agency or a public official acting in an official capacity. (Govt. Code, § 12965, subd. (b).)

Unlike the Cummings court, we do not agree that costs may be awarded a prevailing defendant only when the plaintiff's case is utterly without merit. The court in Knight v. Hayward Unified School District (2005) 132 Cal.App.4th 121, 135 discussed the origins of the flawed analysis in Cummings, in which the Court of Appeal overturned an award of attorney fees and costs as an abuse of discretion because the plaintiff's age discrimination case could not fairly be deemed "frivolous, unreasonable or groundless." (Cummings, supra, 11 Cal.App.4th at p. 1390.) The Cummings court's analysis was based on Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 (Christiansburg). In Christiansburg, the United States Supreme Court identified the standard for awarding attorney fees to a prevailing defendant in an action under the Civil Rights Act of 1964. Christiansburg held that the equitable considerations favoring the award of attorney fees to prevailing plaintiffs in civil rights actions do not apply when the prevailing party is the defendant, because liability for such fees would undoubtedly diminish the willingness of plaintiffs of limited means to bring meritorious suits to vindicate a policy Congress considered of the greatest importance. (Christiansburg, at p. 418). Therefore, the court may award attorney fees to a defendant who prevails, "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even [if] not brought in subjective bad faith." (Id. at p. 421.)

The court in Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671 (Perez) pointed out that the Cummings court did not fully appreciate, "the issue in Christiansburg was limited to the recovery of attorney fees. Costs outside of those fees were not at issue. In Cummings, the court did not segregate the two parts of the award in applying Christiansburg, but overturned them together." (Perez, at p. 680.) The Perez court found the blending of fees and costs in Cummings unnecessary and inappropriate, pointing out that "[s]everal federal courts themselves have refused to apply the Christiansburg test for recovery of defense attorney fees to ordinary litigation expenses. [Citations.] 'The rationale for this distinction is clear. Whereas the magnitude and unpredictability of attorney's fees would deter parties with meritorious claims from litigation, the costs of suit in the traditional sense are predictable, and, compared to the costs of attorneys' fees, small.' " (Perez, at pp. 680-681, fn. omitted.) Disagreeing with the Cummings court's application of the Christiansburg standard for attorney fees to the ordinary litigation expenses allowed under section 1033.5, the Perez court concluded that ordinary litigation costs are recoverable by a prevailing FEHA defendant even if the lawsuit was not frivolous, groundless, or unreasonable. (Perez, at p. 681.)

Unlike the court in Cummings, which did not focus on costs, and simply assumed they should be treated in the same manner as attorney fees, the Perez court explained that the policies justifying the Christiansburg standard for awarding attorney fees to a prevailing defendant do not persuasively apply to the award to such a party of costs. For that reason, and because we believe their reasoning persuasive, we agree with Perez and Knight. We conclude that, as the prevailing party, SDUSD was entitled to its ordinary litigation costs, without having to prove that Manoogian's FEHA claims were frivolous, unreasonable or without foundation.

B.

Manoogian contends that because the trial court ruled she was the prevailing party for purposes of attorney fees on the contract cause of action under Civil Code section 1717, she necessarily was also the prevailing party under Code of Civil Procedure section 1032, and thus was entitled to recover all of her costs or, at a minimum, her contract related costs.

"We emphatically reject the contention that the prevailing party for the award of costs under section 1032 is necessarily the prevailing party for the award of attorneys' fees. Civil Code section 1717 declares the party recovering a greater relief in the action on the contract is the prevailing party. But it further provides the trial court may

'determine that there is no party prevailing on the contract for purposes of [section 1717].' " (McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1456.)

Manoogian argues the courts need to harmonize Civil Code section 1717 and Code of Civil Procedure section 1032. But during the pendency of this appeal, the California Supreme Court decided otherwise in Goodman v. Lozano (2010) 47 Cal.4th 1327: "[W]e reject [the] contention that we must construe [Code of Civil Procedure] section 1032(a)(4) in light of Civil Code section 1717." (Goodman, supra, at p. 1335, fn. 3, citing to Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1143.) This court is bound by the Goodman decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

C.

We conclude Manoogian forfeited the contention, based on Combs v. Haddock (1962) 209 Cal.App.2d 627 and Schwartz v. Schwartz (1969) 268 Cal.App.2d 685, 689, that the court's finding that SDUSD was the prevailing party for the entire action and its striking of Manoogian's cost bill "violated the separate judgments rule for purposes of costs." Manoogian did not present this claim in the trial court.

Our review is governed by the appellate record; with rare exception, we are not permitted to consider new evidence and will not consider facts or contentions not supported by citations to the record. (In re Zeth S. ( 2003) 31 Cal.4th 396, 405; clarified in In re Josiah Z. (2005) 36 Cal.4th 664, 676; In re S.C. (2006) 138 Cal.App.4th 396, 406-407; Nwosu v. Uba ( 2004) 122 Cal.App.4th 1229, 1246-1247; Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207; Cal. Rules of Court, rule 8.204(a)(1)(C).) Along the same lines, we cannot address issues that were not properly raised and preserved in the trial court. (See City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 684-685; Royster v. Montanez (1982) 134 Cal.App.3d 362, 367.)

III.

Manoogian contends SDUSD's section 998 offer lacked an "adequate statement of the terms and conditions of the judgment or award to be entered," including a "request for dismissal." She further contends the offer encompassed both her complaint and SDUSD's cross-complaint, and the trial court erroneously excluded her preoffer costs, including her preoffer attorney fees she was awarded under Civil Code section 1717, in determining that she did not obtain a more favorable award than the section 998 offer.

Under section 998, up until 10 days prior to trial, "any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time." (§ 998, subd. (b).) Although section 998 refers to entry of a judgment or award, an offer that provides for the plaintiff's dismissal of the action with prejudice is a valid form of offer under section 998. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1055.)

A plaintiff who does not accept a valid pretrial offer to compromise and who fails to obtain a more favorable judgment or award may be required to pay defendant's expert witness costs, so long as the section 998 offer was reasonable and made in good faith. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 134.) "Whether a section 998 offer is reasonable must be determined by looking at circumstances when the offer was made." (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699 (Elrod).) To be in good faith, there must be "some reasonable prospect of acceptance." (Id. at p. 698; accord, Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.) If the defendant obtains a judgment more favorable than its offer, the judgment is prima facie evidence that the offer was reasonable. (Elrod, supra, at p. 700.) Whether the offer was made in good faith and was reasonable is left to the sound discretion of the trial court. (Ibid.)

The trial court, in the exercise of its discretion, made findings that: the section 998 offer was not unclear or vague and under it, SDUSD would settle the case in exchange for SDUSD's waiver of fees and costs; the offer was not token or unreasonable; the offer applied only to Manoogian's lawsuit and not the cross-complaint; and Manoogian did not achieve a more favorable result at trial; thus she was not the prevailing party under section 998.

A.

With no citation to the record or legal authority, Manoogian contends the trial court "abused its discretion by finding that SDUSD's Purported 998 Offer was not token and made in bad faith to enable SDUSD to recover its expert witness fees at no risk to SDUSD, when SDUSD served the Purported 998 Offer for a waiver less than 30 days before trial at a time when the parties were entrenched in their litigation positions and there was no reasonable likelihood that Manoogian would accept such an offer." We treat the issue as forfeited because of Manoogian's failure to present a cogent legal argument with citation to authority.

An appellant's brief should not merely repeat arguments unsuccessful in the superior court, but should set out a careful assertion of legal error with meaningful argument and discussion of authorities. (See Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265; 108 Holdings, Ltd. v. City of Rohnert Park (2006) 136 Cal. App.4th 186, 193, fn 3.) Points are deemed abandoned when they are entirely unsupported by argument or reference to the record. (Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5; Kuperman v. Assessment Appeals Bd. No. 1 (2006) 137 Cal.App.4th 918, 931.)

" '[E]rror must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564.) Further, we will not presume prejudice from an error. It is an appellant's burden to persuade us that the court erred in ways that result in a miscarriage of justice. (In re Marriage of Dellaria (2009) 172 Cal.App.4th 196, 204-205; Cal. Const., art. VI, § 13.)

Based on the same authorities, we conclude Manoogian has forfeited her claim that the trial court erroneously failed to consider her preoffer costs in determining whether she obtained a more favorable judgment. As the trial court ruled, "[Manoogian] cites no case that permits a party to recover zero, then add attorney's fees awarded after the trial to claim it had a more favorable result." The court also noted that, "In addition, no break down was ever provided as to which part of these attorney fees as costs could be pre-offer or post-offer costs. Thus, even assuming the court could somehow consider the contract claim, this still would not change the result." She also failed to cite to any legal authority to support her appellate contention.

B.

Manoogian contends the section 998 offer does not comply with the statute because it is silent regarding various terms and conditions. She asks: "Is SDUSD offering to have 'judgment' entered against it on Manoogian's complaint? Is Manoogian supposed to file a 'request for dismissal' of her complaint, and if so, is she supposed to file the request 'with prejudice' or 'without prejudice?' " We conclude the section 998 offer contained an adequate statement of the terms and conditions of the judgment or award.

The appellant in Berg v. Darden (2004) 120 Cal.App.4th 721 raised a similar contention as Manoogian. The Berg court noted that the settlement offer was not stated with precision and, specifically, it did not identify entry of judgment as the proposed final disposition. The Berg court stated, "It is in the best interests of the parties and the court that section 998 offers be as clear, straightforward and thorough as possible." (Id. at p. 728.) Nonetheless, the court held, "So long as it is clear that the written offer of compromise is made under section 998, and, if accepted, will result in entry of judgment

-- the expected and standard procedural result unless specific terms and conditions stated in the offer provide otherwise -- the offer need not identically track the language of the statute under which it is made." (Berg, supra, at p. 730.)

The Berg court further noted that "[i]f the offeree is uncertain about some aspect of the offer, or would prefer the action be dismissed rather than have a judgment entered against him, he is free to explore those matters with the offeror, or even to make counterproposals during the period in which the statutory offer remains outstanding." (Berg, supra, 120 Cal.App.4th at pp. 730-731.) We agree with the reasoning of the Berg court, and conclude that although SDUSD's section 998 offer could have been worded more precisely, it was clear that Manoogian's acceptance of the offer would result in entry of judgment.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

O'ROURKE, J.

WE CONCUR:

McDONALD, J.


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