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Clifford v. American Drug Stores8/22/2005
sulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice . . . ." [Citation.]' [Citation.]" (Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500, 1504, italics added.)
Sav-On states in its reply brief: " nless and until plaintiff proved all the elements of a punitive damages claim and then succeeded in obtaining an actual award of punitive damages, she could not be deemed a prevailing party on that claim." Sav-On is apparently inviting us to rule that, as a matter of law, the trial court was required to refuse attorney fees for time spent on punitive damage issues, regardless of having prevailed on the cause or causes of action in which punitive damages were sought, and regardless of having succeeded in obtaining a finding of malice and oppression.
But the authorities upon which Sav-On relies either upheld the trial court's discretion (e.g., Boquilon v. Beckwith, supra, 49 Cal.App.4th at pp. 1722-1723; Lambert v. Ackerley (9th Cir. 1999) 180 F.3d 997, 1012-1013; Spanish Action Comm. of Chicago v. City of Chicago (7th Cir. 1987) 811 F.2d 1129, 1134-1135), or remanded for the trial court to exercise its discretion anew in light of a partial reversal. (E.g., Roush v. KFC Nat. Management Co. (6th Cir. 1993) 10 F.3d 390, 392.)
To establish an abuse of discretion, Sav-On is required to show that the trial court exceeded the bounds of reason, "`all of the circumstances before it being considered.'" (Denham v. Superior Court, supra, 2 Cal.3d at p. 566, italics added.) Sav-On does not contend that there were circumstances that should have been considered, but were not. It does not even contend that the trial court failed to weigh the circumstance upon which it seeks a reversal. We therefore conclude that Sav-On's showing is insufficient to establish an abuse of discretion, and we decline its invitation merely to adopt an opinion different from the trial court's. (See Dolan v. Buena Engineers, Inc., supra, 24 Cal.App.4th at p. 1504.)
Sav-On spends even less time on its contention that the trial court abused its discretion in allowing fees for 74.7 hours work on a motion to remand, which were also recognized and awarded by the federal court. Although Clifford represents that award has been stayed pending Sav-On's appeal and remains unpaid, Sav-On claims to have paid the fees, but makes no reference to the record in support of its claim.
It is the appellant's burden to show error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) We must presume that any missing exhibit will support the order of the trial court. (Supreme Grand Lodge etc. v. Smith (1936) 7 Cal.2d 510, 513.) "`A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appel
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