NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

Plaintiff/cross-defendant One Star, Inc. (One Star) appeals an award of attorney fees entered for defendant/cross-complainant STAAR Surgical Company (STAAR). We find that attorney fees were properly awarded, and thus we affirm.

FACTUAL AND PROCEDURAL HISTORY

I. Pretrial Proceedings

STAAR manufactures and sells medical products and devices. One Star sells medical equipment and supplies, and it formerly was a regional representative for STAAR. (One Star, Inc. v. STAAR Surgical Co. (2009) 179 Cal.App.4th 1082, 1085 (One Star, Inc.).)

On November 27, 2006, One Star filed a complaint against STAAR for breach of contract, intentional interference with contractual relations, intentional interference with prospective economic advantage, misappropriation of trade secrets, and unfair competition. The complaint alleged that STAAR improperly withheld One Star's commissions and solicited One Star's employees and independent contractors. STAAR filed a cross-complaint for breach of contract against One Star and James Greiling, One Star's principal. (One Star, Inc., supra, 179 Cal.App.4th at p. 1086.)

The trial court dismissed several of One Star's claims prior to trial. Thus, at trial One Star pursued only two claims: breach of written contract (for wrongfully deducting "consulting fees" from One Star's commissions from August 2003 to December 31, 2005) and common counts (for services performed from January 1, 2006, to the date of trial). STAAR pursued its cross-complaint for breach of written contract. (One Star, Inc., supra, 179 Cal.App.4th at p. 1086.)

On September 12, 2007, STAAR made a statutory offer to compromise pursuant to Code of Civil Procedure section 998 (section 998). STAAR offered "`to allow judgment to be taken against STAAR and in favor of [One Star] in the amount of Sixty Five Thousand Dollars ($65,000).'" (One Star, Inc., supra, 179 Cal.App.4th at p. 1086.) One Star did not accept the offer, and it lapsed by operation of law 30 days later. (Ibid.)

STAAR made a second offer to compromise on December 7, 2007, offering "`to allow judgment to be taken against STAAR and in favor of [One Star] in the amount of Sixty Five Thousand Dollars ($65,000), including the legal applicable rate of interest, commencing from October 3, 2006.'"1 (One Star, Inc., supra, 179 Cal.App.4th at p. 1086.) One Star did not accept that offer, and STAAR withdrew it on December 20, 2007. (Ibid.)

II. Trial, Judgment, and Cross-motions for Attorney Fees

The case was tried to the court. The court found that STAAR was authorized to subtract consulting fees from One Star's commissions, and thus it denied One Star's claim for breach of written contract. It also found that One Star was entitled to recover some unpaid commissions, and it awarded One Star $41,400 on its common counts. As to STAAR's cross-complaint, the court found that STAAR had failed to establish breach of contract or damages. (One Star, Inc., supra, 179 Cal.App.4th at pp. 1086-1087.)

STAAR moved for prevailing party attorney fees and costs pursuant to Civil Code section 1717 and, in the alternative, for attorney fees and costs incurred after its first settlement offer pursuant to section 998. One Star opposed the motion, urging, among other things, that STAAR's first section 998 offer was irrelevant because it was extinguished by the withdrawn (and therefore ineffectual) second offer. One Star and Greiling also filed their own motion for attorney fees and costs, urging that they were the prevailing parties because they obtained greater relief. (One Star, Inc., supra, 179 Cal.App.4th at p. 1087.)

The court granted One Star and Greiling's motion for attorney fees and costs and denied STAAR's. It found as follows: (1) One Star was the prevailing party in the action and thus was entitled to its costs under Code of Civil Procedure section 1032; (2) as between STAAR and One Star, neither party "prevailed" on the contract claims, and thus neither was entitled to attorney fees under Civil Code section 1717; (3) as between STAAR and Greiling, Greiling prevailed on STAAR's breach of contract claim, and thus Greiling was entitled to recover his attorney fees pursuant to Civil Code section 1717; and (4) STAAR was not entitled to recover any of its attorney fees or costs pursuant to section 998. (One Star, Inc., supra, 179 Cal.App.4th at pp. 1087-1088.)

The trial court entered judgment on October 20, 2008.

III. The Prior Appeal

STAAR appealed, contending that the trial court erred by denying its request for attorney fees and costs incurred after One Star rejected its first section 998 offer. We agreed and reversed with directions to strike the award of costs to One Star and to calculate the postoffer costs to which STAAR was entitled. We expressed no opinion as to whether STAAR was entitled to recover its attorney fees as an element of costs or, if so, the amount of recoverable attorney fees. (One Star, Inc., supra, 179 Cal.App.4th at p. 1096.)

The remittitur issued on February 5, 2010.

IV. STAAR's Renewed Motion for Attorney Fees

On February 22, 2010, the trial court issued a "Notice of Case Management Conference," ordering the parties to appear for a case management conference on April 1, 2010. Following that conference, the trial court issued a minute order that stated as follows: "Case is back on Remittitur. The [judgment] is affirmed in part and reversed in part with directions. [¶] Parties are to file motions regarding post-offer costs which are set for hearing on June 24, 2010 at 8:30 am in this department. Briefing schedules as per code."

STAAR filed a renewed motion for attorney fees and costs on June 1, 2010. It requested postoffer attorney fees and costs, plus appellate attorney fees and costs. It contended that its total recoverable attorney fees were $527,152.50, and its total recoverable costs were $13,044.03.

One Star opposed the motion. It contended: (1) STAAR's June 1 request for attorney fees and costs was untimely because it was filed more than 40 days after the remittitur issued (Cal. Rules of Court, rules 8.278(c), 3.1702(c));2 (2) section 998 did not entitle STAAR to attorney fees as an element of costs; and (3) if attorney fees were an item of costs, One Star, not STAAR, was entitled to an augmented judgment because its recovery plus its preoffer fees and costs exceeded STAAR's section 998 offer.

The court granted STAAR's motion. It found that STAAR's motion was timely under rule 3.1702(b), which provides that a motion for attorney fees incurred before entry of judgment must be made within the time to file a notice of appeal. Because STAAR filed its renewed motion for attorney fees and costs before the court entered an amended judgment, the renewed motion, like the motion in Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4th 1077 (Yuba), was "actually premature." The court did not reach the issue of the reasonableness of STAAR's fees, but ordered the parties to meet and confer and submit a joint separate statement addressing the disputed items.

The parties submitted a joint statement regarding attorney fees on August 16, 2010. On August 27, 2010, the trial court awarded STAAR attorney fees and costs as follows: $371,705 (attorney fees incurred before and during trial) + $155,397.50 (appellate attorney fees) + $20,000 (postappeal attorney fees) + $9,126.05 (costs incurred before and during trial) + $1,717.60 (appellate costs) = $557,946.15.

On September 27, 2010, the trial court entered an amended judgment that included the attorney fee and cost award to STAAR. Notice of entry of judgment was served on October 1, 2010, and One Star timely filed notice of appeal on November 23, 2010.

DISCUSSION

One Star contends: (1) STAAR did not timely request attorney fees, and (2) even if STAAR's attorney fee motion was timely, STAAR was not entitled to attorney fees because One Star defeated its section 998 offer.3

We normally review an award of attorney fees after trial for abuse of discretion. However, in the present case STAAR's entitlement to fees raises a question of statutory interpretation, and thus our review is de novo. (See Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)

I. STAAR's Request for Attorney Fees Was Timely

Rule 3.1702(b) provides that a motion for attorney fees "for services up to and including the rendition of judgment in the trial court—including attorney's fees on an appeal before the rendition of judgment in the trial court—must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case"—i.e., normally either 60 days after service of notice of entry of judgment or 180 days after entry of judgment, whichever is earlier.

Rule 3.1702(c) provides that a motion "to claim attorney's fees on appeal—other than the attorney's fees on appeal claimed under (b)—under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited civil case"—i.e., within 40 days of the issuance of the remittitur. (Rule 8.278(c)(1).)

One Star contends that rule 3.1702(c) applies in the present case, and thus STAAR was required to file its request for attorney fees no later than 40 days after this court issued the February 5, 2010 remittitur. Because STAAR did not file its request for attorney fees until June 1, 2010, nearly four months after the remittitur issued, the request for attorney fees was untimely and should have been denied. One Star further contends that Yuba, supra, 98 Cal.App.4th 1077, on which the trial court relied, does not apply because in Yuba the appellate court reversed a judgment in its entirety, while here we left the substantive award intact and merely reversed on the issue of postoffer costs.

STAAR responds that the present appeal is governed by rule 3.1702(b), not rule 3.1702(c), because under Yuba, the entry of an amended judgment following an appeal restarts the time to file an attorney fee request. Thus, because STAAR requested attorney fees before the trial court entered the amended judgment, the request was timely.

We begin by noting that although One Star does not distinguish between them, STAAR actually made two separate requests for attorney fees. STAAR made a first attorney fee request on June 13, 2008 (first fee request), when it sought attorney fees and costs incurred through the conclusion of trial (April 22, 2008) ($371,705). STAAR made a second attorney fee request on June 1, 2010 (second fee request), when it renewed its motion for attorney fees incurred through the conclusion of trial and sought an additional award of attorney fees incurred on appeal and thereafter ($155,397.50).

STAAR's request for attorney fees incurred through the conclusion of trial (preappeal attorney fees) was timely. The trial court did not enter the initial judgment in this case until October 20, 2008, more than four months after STAAR filed its first fee request. That fee request therefore was filed within the time permitted by rule 3.1702(b)—i.e., within 60 days after service of notice of entry of judgment. Although STAAR later renewed its request for preappeal attorney fees, its entitlement to fees did not depend on the renewal. That is so because our November 30, 2009 opinion directed the trial court to calculate "the postoffer costs to which STAAR is entitled." (One Star, Inc., supra, 179 Cal.App.4th at p. 1096.) Although we did not expressly instruct the trial court to determine the attorney fees to which STAAR was entitled, because attorney fees are an element of costs when authorized by contract, statute, or law (Code Civ. Proc., § 1033.5, subd. (a)(10)), our direction to the trial court to calculate STAAR's postoffer costs required it also to determine whether STAAR was entitled to postoffer attorney fees. (See Mangano v. Verity, Inc. (2008) 167 Cal.App.4th 944, 948 ["In addition to expert fees, the costs awarded to a prevailing party pursuant to section 998 may include attorney's fees"].) Thus, although STAAR elected to file a renewed motion for its preappeal attorney fees, the trial court would have been required by our disposition of the first appeal to determine whether STAAR was entitled to those fees even if STAAR had not filed the renewed motion.

STAAR's request for appellate attorney fees raises a different issue, which the trial court correctly concluded was governed by Yuba. In Yuba, the plaintiff sought to rescind a real estate contract and to recover moneys he had paid to defendant on the contract. After losing in the trial court, plaintiff prevailed on appeal. The Court of Appeal reversed the judgment for defendant and remanded with directions to calculate the reimbursement to which plaintiff was entitled and to enter judgment in his favor. On remand, plaintiff moved for an award of attorney fees and costs pursuant to an attorney fee clause in the real estate contract. Defendant opposed the request, contending among other things that the request was untimely. The trial court agreed and denied the request for attorney fees. (Yuba, supra, 98 Cal.App.4th at p. 1080.)

The Court of Appeal reversed, concluding that plaintiff's attorney fee request was timely. It noted that rule 870.2(c)(1) (the precursor to rule 3.1702(b)) stated: "`A notice of motion to claim attorney fees for services up to and including the rendition of judgment in the trial court—including attorney fees on an appeal before the rendition of judgment in the trial court—shall be served and filed within the time for filing a notice of appeal under rules 2 and 3.'" (Yuba, supra, 98 Cal.App.4th at p. 1085.) It noted that "[s]ome examples of situations where attorney fees are incurred on appeal before the rendition of judgment include: where a party seeks pretrial writ review of a ruling; where the appellate court reverses a judgment of dismissal following an order sustaining a demurrer without leave to amend and the matter proceeds to trial and judgment; or where, as here, the appellate court reverses a judgment following trial and directs the entry of a new judgment." (Ibid.) In contrast, "appellate attorney fees are incurred after rendition of judgment when the appellate court simply affirms the judgment without remanding the matter for further proceedings entailing the entry of a new judgment." (Ibid.) Thus, in the present case, "[a]lthough plaintiff's appellate attorney fees were incurred after rendition of the initial judgment in favor of defendants, that judgment was reversed and the case was remanded with directions for the trial court to enter a new judgment in favor of plaintiff. As a result, his appellate attorney fees now were incurred before the trial court's ultimate rendition of judgment in his favor. Thus, rule 870.2(b)(1) applies, and the applicable time limits are set forth in rules 2 and 3, which govern the time for filing a notice of appeal following the rendition of judgment." (Ibid., original italics omitted, italics added.)

The present case is indistinguishable. In the prior appeal, we reversed the judgment in part with directions to the trial court to "calculate the postoffer costs to which STAAR is entitled and to strike its award of postoffer costs to One Star." (One Star, Inc., supra, 179 Cal.App.4th at p. 1096.) Although we did not expressly direct the trial court to enter a new judgment, such direction was implicit because the award of costs to One Star and denial of attorney fees and costs to STAAR was embedded in the October 20, 2008 judgment. (Id. at p. 1088.) Thus, the trial court could comply with our directions only by entering a modified judgment. Further, even if the trial court had not been required to enter a new judgment, it did so, entering an amended judgment on September 27, 2010. Because STAAR sought its appellate attorney fees before the amended judgment was entered, its fee request was timely under rule 3.1702(b) and Yuba.

One Star contends that Yuba is distinguishable because there, the court entirely vacated the judgment, while here, we "merely reversed on the issue of the proper measure of post-offer costs." As a result, One Star says, "unlike Yuba, the lower Court judgment remained, and the lower court was simply instructed to augment the judgment."

We reject the distinction One Star seeks to draw between an "entirely vacated judgment" and a "partially vacated judgment." California law is clear that "there can be only one final judgment" in an action. (E.g., Leader v. Cords (2010) 182 Cal.App.4th 1588, 1594.) Thus, where a court amends a judgment "`in a manner amounting to a substantial modification of the judgment . . ., the amended judgment supersedes the original and becomes the appealable judgment.'" (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222 (Torres).) "`Therefore a new appeal period starts to run from notice of entry or entry of the amended judgment.'" (Ibid.)

There is a split of authority as to whether a change to an attorney fee or cost award is a "substantial modification" that restarts the appeals clock. In Torres, supra, 154 Cal.App.4th at page 222, the court held that it is "well settled" that "`[w]here the judgment is modified merely to add costs, attorney fees and interest, the original judgment is not substantially changed and the time to appeal it is therefore not affected.'" The court reached a different result in Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1081 (Erickson), however, holding that a substantive change to an attorney fee award triggered a new appeals period. It explained: "[T]he attorney fee portion of the December 2003 Judgment was independently appealable because it substantially modified the November 2003 Minute Order. [Citation; fn. omitted.] Contrary to R.E.M.'s contention, the December 2003 Judgment did not simply accomplish the ministerial or clerical function of reflecting the award made in the November 2003 Minute Order. Instead, the $97,037.25 in attorney fees awarded to R.E.M. by the December 2003 Judgment constituted a substantial reduction from the November 2003 Minute Order's award to R.E.M. of attorney fees of $114,618.96 plus an additional $2,062.50 for briefing and hearings related to R.E.M.'s attorney fee motion. [Citation.] Hence, as filed within 60 days after December 10, 2003, the date of service of the December 2003 Judgment, Erickson's notice of appeal filed on January 9, 2004, was timely." (Ibid.)

We adopt Erickson's analysis here. In the present case, the issue of attorney fees and costs was sufficiently substantive to have engendered two separate appeals; thus, at least as to the attorney fee portion of the judgment, the entry of an amended judgment triggered a new appeals period. Indeed, were we to conclude otherwise, One Star's present appeal, filed more than two years after notice of entry of the original judgment, would itself be untimely.

II. One Star's Recovery Did Not Exceed STAAR's Section 998 Offer

One Star contends that even if STAAR's attorney fee motion was timely, the court should not have granted it because One Star's recovery exceeded STAAR's section 998 offer. It urges that in comparing its recovery and STAAR's section 998 offer, the trial court should have considered its own preoffer attorney fees and costs, which it says totaled $40,665.73, in addition to its substantive recovery of $41,400. Had the trial court done so, One Star says, it would have concluded that its recovery was $82,065.73 ($40,665.73 + $41,400), which exceeded STAAR's section 998 offer of $65,000.

We do not reach the merits of One Star's contention because it attempts to relitigate issues addressed in the prior appeal, and thus is barred by the doctrine of law of the case. "`[W]here an appellate court states a rule of law necessary to its decision, such rule "`must be adhered to'" in any "`subsequent appeal'" in the same case, even where the former decision appears to be "`erroneous.'"' (People v. Whitt (1990) 51 Cal.3d 620, 638 (Whitt), quoting People v. Shuey (1975) 13 Cal.3d 835, 841.) Thus, the law-of-the-case doctrine `prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances.' (Whitt, supra, at p. 638.)" (People v. Boyer (2006) 38 Cal.4th 412, 441.)

In the prior appeal, the issue before us was whether STAAR was entitled to costs incurred after it offered to settle pursuant to section 998. We determined that STAAR could recover all costs incurred after its first settlement offer and thus that "the trial court erred in denying STAAR's request for costs." (One Star, Inc., supra, 179 Cal.App.4th at p. 1094.) In reaching that conclusion, we necessarily decided that STAAR's section 998 offer exceeded One Star's recovery, and thus the law of the case doctrine bars us from reconsidering that issue here.

DISPOSITION

We affirm the amended judgment and award STAAR its costs on appeal.

WILLHITE, Acting P. J. and MANELLA, J., concurs.