Baughn v. City of Salinas

Filed 2/26/08 Baughn v. City of Salinas CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Petitioner Brian Baughn was the prevailing party in a proceeding under the California Public Records Act (CPRA). (Gov. Code, 6250 et seq.) The trial court granted his attorneys fees motion but awarded him less than half of the almost $85,000 he had requested. Petitioner argues on appeal that the award was an abuse of discretion.

We detect no abuse of discretion in the trial courts award of fees incurred for the prosecution of the CPRA petition. However, we find no reasonable basis in the record for the amount the trial court determined was reasonable for litigating the attorneys fees motion itself. Accordingly, we reverse the judgment.

I.                   Facts

A.     The Writ Proceedings

Petitioner filed this case against respondents City of Salinas and Salinas Redevelopment Agency (collectively, City) seeking access to records pertaining to the development of a hotel complex in downtown Salinas. The developer with which City had been negotiating, Berkley Group, Inc. (Berkley), had belatedly produced certain documents that City had demanded in order to consider Berkleys proposal. Petitioner sought access to these documents. In particular, petitioner wanted copies of Berkleys financial statements (the Berkley financials) and confirmation of its acquisition of the Greyhound bus property in downtown Salinas, which was to be part of the project (the Greyhound agreement). On April 20, 2005, petitioner submitted a request to the City Attorneys office for these two categories of documents. Petitioner had previously made numerous other requests for documents and City had produced thousands of pages of documents in response. But City declined to produce the Berkley financials or the Greyhound agreement, concluding that to do so is not in the public interest, will impair the Agencys ability to negotiate, and will harm the deliberative process. City agreed to disclose the documents if negotiations resulted in an agreement with Berkley but refused to disclose the records prior to that.

Petitioner engaged the Palo Alto office of DLA Piper Rudnick Gray Cary US LLP (DLA Piper) to file a petition for writ of mandate seeking access to the two documents. Petitioner employed DLA Piper on an hourly fee-for-service basis. DLA Piper attorney James M. Chadwick had primary responsibility for the file. He filed the CPRA petition for writ of mandate on May 20, 2005.

After the writ petition was filed, City contacted petitioners counsel to discuss the possibility of settling the case. Initially, settlement discussions were promising. Petitioner agreed to a settlement that would have allowed City to make the records public only if negotiations with Berkley resulted in a proposed development agreement. Petitioner insisted, however, that his agreement was contingent upon Citys paying all the legal fees he had incurred up to that time. At this point, petitioner had been billed over $18,000 in attorneys fees and costs. City urged petitioner to settle the substance of his claims and have the trial court decide the issue of attorneys fees but petitioner refused. Settlement discussions broke down and the matter went to hearing on July 8, 2005.

The trial court issued its ruling on July 27, 2005. The court granted the petition as to the Greyhound agreement but denied it as to the Berkley financials. The trial court agreed with City, finding that the public interest was best served by not disclosing the Berkley financials prior to the conclusion of negotiations with Berkley. Disclosure at this time might prejudice the Citys ability to conduct the ongoing real estate negotiations, and might discourage future developers from doing business with the City. The documents will be produced if a final contract is entered into by the parties. An order and judgment ordering the issuance of a writ of mandate as to the Greyhound agreement was filed on September 7, 2005.

B.     The Attorneys Fees Motion

On November 14, 2005, petitioner filed a motion for attorneys fees and costs. The motion sought $44,967.50 in fees incurred in connection with the CPRA petition plus whatever fees would be incurred for prosecution of the attorneys fee motion itself. Petitioners moving papers showed that Chadwick billed his time at $435 per hour and his associate, Danielle Van Wert, billed her time at $325 per hour. (Other attorneys worked on the petition but their contributions were minimal in comparison to Chadwick and Van Wert.) In support of the reasonableness of these rates, petitioner requested judicial notice of certain papers filed in a CPRA case litigated in Monterey County the preceding year (Bernardi v. Monterey County (Super. Ct. Mty., 2004, No. 65905)). In the Bernardi case, Neil Shapiro, an experienced attorney with expertise in CPRA cases, submitted a declaration in support of the petitioners request for attorneys fees. Shapiro had practiced in the San Francisco Bay Area until 2003, when he moved his practice to Monterey County and, therefore, was familiar with the hourly rates charged by local attorneys and those practicing in the San Francisco Bay Area. Shapiro opined that attorneys from the San Francisco Bay Area with expertise equivalent to Bernardis counsel, Michael Stamp, would have charged an hourly rate in the range of $425 to $475. The prevailing rate in Monterey County for the same level of expertise would be about $350 per hour.

Petitioner also submitted the declaration of Judy Alexander, a CPRA attorney located in Santa Cruz. Alexander stated that there are a very small number of attorneys who specialize in First Amendment and public access law, that petitioners counsels hourly rates were comparable to the rates charged by attorneys of comparable skill and experience in the Silicon Valley generally, and to the rates charged by attorneys of comparable skill and experience who specialize in First Amendment and public access law, and that [g]iven the complexity of this matter the amount of time the attorneys had spent on it was reasonable.

Petitioners own declaration explained that after City denied his request for the records, he attempted to retain CPRA counsel in Monterey County. He contacted Michael Stamp but Stamp could not represent him due to a conflict. He claimed he did not contact Shapiro because he had been unsuccessful in retaining Shapiro on a couple of occasions in the past when petitioner was seeking representation for other matters. After being turned down by Stamp, petitioner went to the California First Amendment Coalitions lawyer referral webpage, which listed Chadwick as the attorney geographically closest to Monterey County having experience litigating CPRA matters. Petitioner also spoke to other attorneys who recommended Chadwick.

On November 22, 2005, City filed an ex parte request to continue the hearing date, which was then set for December 9, 2005. City sought to have the hearing rescheduled to December 20, 2005, because the city attorney was out of the office and would not return until the date opposition to the motion was due and because the deputy city attorney was scheduled to defend three depositions on the date the hearing was set. Petitioner had refused to stipulate to a continuance and opposed Citys ex parte request, citing as prejudice the time value of the money he was seeking, having already paid his attorneys for their services. The trial court continued the hearing to December 16, 2005.

By the time of the hearing, petitioners attorneys fees had risen to $84,051.50. The total reflected $44,967.50 for work done on the CPRA petition and $39,084 for the attorneys fees motion.

Citys opposition to the motion argued that it was untimely, that counsels hourly rates were not in line with rates charged in Monterey County, and that the number of hours charged was unreasonable. Neil Shapiro submitted a declaration in support of Citys opposition. Shapiro had no quarrel with Chadwicks expertise. Further, Shapiro had no dispute with the assertion that $435 per hour was consistent with the fees charged by large firms in the San Francisco/Palo Alto legal market, although he never believed those rates were reasonable. Shapiro opined that the reasonable value of the legal services in Monterey County was a bit less than the $350 per hour value he had placed upon the services delivered in the Bernardi case. Shapiro described the Bernardi case as much more complex than this one, involving multiple hearings, proceedings in the Court of Appeal and even a complaint to the California State Bar, and provided access to numerous documents comprising approximately 275 to 300 pages of records. He pointed out that attorney Stamp had been practicing law since 1976; Chadwick had graduated law school in 1991. He also noted that Judge Susan M. Dauphin, who had awarded the $350 per hour in the Bernardi case, had declined to add a multiplier to increase the fee in that case, even though counsel had demonstrated extraordinary skill, noting that $350 per hour is still at the high end for a public records request in this community. Shapiro also noted that the case was sufficiently straightforward that any one of several senior trial attorneys in Monterey County could have handled it. Shapiro concluded that $300 to $325 per hour would be a reasonable charge for the legal services delivered in this case. As to Van Wert, who had four years experience at the time she worked on this case, Shapiro stated that the prevailing rate for her in Monterey County would be $175 per hour.

After reviewing the itemized invoices petitioner had submitted, Shapiro also opined that much of the time billed was duplicative or involved CPRA requests other than the one at issue in this case. Shapiro stated that there are inherent excesses in the way large firms charge for their work, citing the need for repeated review and revision of associates work and the need for several lawyers working on a case to communicate with one another frequently. With respect to the bills for litigating the CPRA petition, Shapiro believed that the amount for three lawyers other than Chadwick and Van Wert ($1,033) should be deleted and the remainder reduced by 10 to 15 percent. He then stated: Accepting all of the time entries made by Mr. Chadwick and Ms. Van Wert and applying an hourly rate of $325 for Mr. Chadwicks time and an hourly rate of $175 for Ms. Van Werts time yields the sum of $26,897.50. If one deducts from that sum the 10% referenced in the preceding paragraph, the resulting number is $24,207.75, and if one deducts the 15% referenced in the preceding paragraph, the resulting number is $22,862.87.

As to the attorneys fees motion, Shapiro opined that the fees requested for that work were also unreasonable. Shapiro observed that the billing records showed that by September 1, 2005, Van Wert had already reviewed and analyzed the case law regarding attorneys fees under the CPRA and had drafted and revised a memorandum of points and authorities and a declaration for attorney Alexander in support of a motion for attorneys fees. Her time spent on these tasks was modest, as it should be; any firm with significant experience in Public Records Act cases has prior fee motions, including briefing and supporting declarations, in electronic format ready to be customized for a particular case. On or about November 1, 2005, preparation of the motion was turned over to another associate. That associate then spent 22.4 hours to complete the motion and Chadwick spent another 7.7 hours overseeing the work. Shapiro thought that the combined total should have been about 14 hours for a total of no more than $3,050. Even if all the time were billed, at the prevailing local rates, the fees for preparation of the moving and supporting papers would be $6,422.50.

Shapiro went on to criticize the time spent on the opposition to Citys request for a continuance of the hearing on the fees motion, stating that it should have taken no more than an hour or two of work, not the 12 hours billed. And the work produced in connection with the reply papers (a 10-page legal memorandum, four declarations, and written objections to Citys evidence) could have been performed in 28 to 35 hours ($6,269.87-$7,874.98) rather than the 71.2 hours billed.

Shapiro did not separately tally his recommendations pertaining to the fees for the attorneys fees motion. Rather, he stated his recommendations this way: When these sums [$6,269.87 to $7,874.98] are added to the $22,850 to $24,200 set forth in my original declaration [pertaining to fees for prosecuting CPRA petition] and to the $3,050 to $6,422.50 [suggested as reasonable fees for filing the motion], the upper limit of the reasonable range for a fee award here would be no more than $32,470 to $38,500. By subtracting the amounts for the CPRA petition from these totals we see that Shapiros opinion was that reasonable fees for the attorneys fees motion would be something in the range of $9,620 to $14,300.

Just days before the hearing, the presiding judge ordered the attorneys fees motion to be heard by Judge Dauphin rather than by Judge Michael S. Fields, the judge who had heard the CPRA petition.[1] Judge Dauphin admitted that she had not read every page of the file relating to the CPRA petition but she was familiar with what was requested [in the CPRA petition] and what [Judge Fieldss] ruling provided, and I am familiar with the declarations and briefs that have been presented with respect to the attorneys fees motion.

After hearing the argument of counsel, the trial court expressly found Citys expert opinion to be persuasive, concluded that petitioner was entitled to attorneys fees at rates which are in line with those prevailing in the community, which was $325 per hour for Chadwick and $175 for his associates. As to the fees for prosecuting the CPRA petition, the court stated that there are items in the statements that appeared excessive but not as excessive as Shapiro had found them to be. The court found that the appropriate amount of fees up to the filing of the [attorneys fees] motion is $25,000. The trial court determined that a reasonable fee for bringing the motion for attorneys fees was $6,000.[2]

In its written findings, the trial court reiterated its conclusions with respect to the reasonable hourly rates and the reasonable amount of fees for the petition and the fees motion. The court stated that its ruling was based upon the declarations of counsel for both parties, Shapiros declaration, and the courts own experience. As to the hourly rates, the court was aware of authority that permitted an award based upon the prevailing rates in counsels community but that the court does not believe such an award is warranted or appropriate in this case. The court took judicial notice of the records of the Bernardi case, noting, in particular, that the court had awarded Michael Stamp $350 per hour for his work in that case. The court observed, The Bernardi case involved multiple hearings, appellate proceedings, and approximately 17 categories of documents. The court further noted, The complexity of the issues and litigation concerning the public records requests at issue in this matter was not high, and involved only a single hearing and two categories of requested documents (one of which Petitioner prevailed on).

Referring to the total attorney time spent on the case, the trial courts written findings went on to state, the work by Petitioners counsels firm involved some duplication of efforts, some billing for time spent by attorneys not reasonably necessary to this case, some work performed on matters not within this Petition, and some time that appeared to be excessive, such as the hours claimed for preparing the opposition to the continuance of the hearing on the attorneys fees and motion and the time claimed for preparation of the reply papers relating to the attorneys fees motion. The court concluded: [t]he court finds that the reasonable and necessary attorneys fees, at the reasonable hourly rates stated [above] for the time before the motion for attorneys fees and costs is $25,000.00 and for the time on the attorneys fees proceedings is $6,000.

II.                Petitioners Contentions[3]

Petitioner contends that the trial court erred in refusing to award all of the attorneys fees he paid in connection with this lawsuit. He claims that the trial court abused its discretion by reducing the hourly rate from that actually charged and by reducing the number of hours for which he could be compensated. According to petitioner, since he had contracted for his attorneys services on a fee-for-service basis, failing to compensate him in full penalizes him for vindicating an important public right, contrary to the purposes of the CPRA.

III.             Legal Framework and Standard of Review

The CPRA mandates a fee award to a plaintiff who files an action which results in defendant releasing a copy of a previously withheld document. (Belth v. Garamendi (1991) 232 Cal.App.3d 896, 898; Gov. Code, 6259, subd. (c).) An action results in the release of previously withheld documents if the lawsuit motivated the defendants to produce the documents. (Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 482.) There is no dispute that petitioner is entitled to fees in this case. The only question is whether the trial court erred in choosing the amount of fees to which he is entitled.

The fee setting inquiry ordinarily begins with the lodestar, namely, the reasonable number of hours worked multiplied by the reasonable hourly rate. California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys fee award. (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004-1005.) The reasonable hourly rate is that prevailing in the community for similar work. (Id. at p. 1004.) If the prevailing party demonstrates that hiring local counsel was impracticable, the trial court may adjust the hourly rate of the attorney or apply an enhancing multiplier to the lodestar. (Horsford v. Board of Trustees of CaliforniaStateUniversity (2005) 132 Cal.App.4th 359, 397-399 (Horsford).) Once the lodestar is calculated, the figure may be adjusted to fix the fee at the fair market value for the services rendered. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

In examining the trial courts attorneys fees determination, we keep in mind that the trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler, supra,22 Cal.4th at p. 1095.) [T]he awarding of attorney fees and the calculation of attorney fee enhancements are highly fact-specific matters best left to the discretion of the trial court. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 581.) This determination is necessarily ad hoc and must be resolved on the particular circumstances of each case. (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 452.) Trial courts have discretion to consider all of the facts and the entire procedural history of the case in setting the amount of a reasonable attorneys fee award. (Ibid.) Thus, the trial court has discretion to decide the reasonable rate of compensation and which of the hours expended by the attorneys were reasonably spent on the litigation. (Id. at p.449.) The trial courts discretion is not an uncontrolled power, however. It is a legal discretion, limited by the legal principles governing the subject of its action. Reversal is warranted where the record discloses no reasonable basis for the action. (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.) Thus, [w]e do not defer to the trial courts ruling when there is no evidence to support it. (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452.) Stated another way, The experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his [or her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)

There are two other considerations that have particular relevance here. The first is the purpose of the statutory fee award, which is to provide the financial incentive necessary for the private enforcement of important civil rights protected by the statute. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The trial courts exercise of discretion must be measured against this purpose. (Horsford, supra,132 Cal.App.4th at pp. 393-394.) The second consideration is that, although parties who qualify for a fee should recover for all hours reasonably spent, special circumstances might render full compensation unjust. (Serrano v. Unruh (1982) 32 Cal.3d 621, 633, 639.) A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. (Id. at p. 635.)

IV.              Discussion

A.     The Reasonable Hourly Rates

Petitioners argument, generally, is that he is entitled to all the fees he incurred in this case. Anything less penalizes him since he loses the balance of the fees he already paid even though he won the case. We agree that full compensation is necessary to advance the goals of the CPRA and encourage counsel to take on these cases. But the law does not require compensation without regard to its reasonableness. Indeed, the authorizing statute provides, The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. . . . If the court finds that the plaintiffs case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency. (Gov. Code, 6259, subd. (d), italics added.) Thus, although the fee award to a prevailing petitioner is mandatory, the trial court is not bound to award whatever amount is requested. The standard is reasonableness and the reasonableness calculation begins with the lodestar.

The lodestar is the product of all the hours reasonably spent and the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1133.) The prevailing rate in the community may be adjusted if the plaintiff was unable to obtain counsel from within the community and was forced to obtain higher-priced counsel from out of town. But in order to warrant the premium rate, the plaintiff must show some good faith effort to obtain representation locally. For example, in Horsford, supra,132 Cal.App.4th 359, the plaintiffs were unable to find local counsel to prosecute a civil rights lawsuit against their employer, California State University Fresno. (Id. at p. 367.) One plaintiff described his search for counsel as follows: I first contacted attorney[] Barry Bennett, who specializes in labor and employment law, and he told me that he would not be able to represent me. [] I then attempted to obtain an attorney by calling various attorneys listed in the Fresno Yellow Pages as practicing labor and employment law. I spoke with about six different attorneys who represented employees. . . . All of them appeared to be apprehensive to take my case, and they all declined to represent me. Finally, a friend gave me the name of Larry Murray, an attorney in the San Francisco area. (Id. at p. 398.) The plaintiffs declaration was buttressed by declarations of several local civil rights lawyers who had refused to work for the plaintiffs and another who had agreed to work on a limited basis at the urging of another local lawyer who told him the plaintiff was having great difficulty finding local counsel. (Ibid.) On these facts, Horsford held that it was an abuse of discretion for the trial court to fail to consider awarding out-of-town rates for plaintiffs San Francisco counsel. If a potential defendant is too intimidating to the local bar or so replete with resources as to potentially overwhelm local counsel, or if the local plaintiffs bar has not the resources to engage in complex litigation on a contingency-fee basis, the public interest in the prosecution of meritorious civil rights cases requires that the financial incentives be adjusted to attract attorneys who are sufficient to the cause. (Id. at p. 399.) Thus, [i]n the absence of any realistic indication plaintiffs could have found local counsel it is an abuse of discretion to fail to consider an hourly rate based upon the community from which counsel was chosen. (Ibid.)

Petitioner in this case approached only Michael Stamp. There is no evidence that petitioner had tried and failed to obtain representation from any other local attorneys. As Shapiro opined, the case was not so complex or unusual that it could not have been handled successfully by any one of several established, experienced trial attorneys in the county. Since petitioner was willing to contract for representation on a fee-for-service basis, there would have been no concern that counsel would have lacked the resources to pursue the matter on a contingency basis. Nevertheless, after having failed to retain Stamp, petitioner did not look further in the Monterey County area but instead went directly to a statewide database. Even if petitioner was limited to counsel specializing in CPRA cases, Shapiro was available at the time plaintiff was looking for representation. Judy Alexander, the attorney that plaintiff ultimately hired as his CPRA fee expert, is located in Santa Cruz County, adjacent to Monterey County. Petitioner could have inquired of either of these attorneys. Of note is petitioners comment that other attorneys he spoke to had recommended Chadwick. It appears, therefore, that petitioner was not limited to an Internet search for counsel but that he had other resources to guide his search and that he did not make much of an effort to secure representation locally. Since there is no evidence that competent local counsel was unavailable or difficult to find, the trial court did not abuse its discretion in refusing to apply out-of-town rates in this case.

Petitioner complains that City employed out-of-town counsel and, therefore, he should have been able to do so, too. Although it would not be improper to compare the rates charged by Citys attorneys with those charged by petitioners (see Chrapliwy v. Uniroyal, Inc. (7th Cir. 1982) 670 F.2d 760, 768, fn. 18), we cannot do that here since there is no evidence of the rates Citys attorneys charged.

Citing United Steelworkers v. Phelps Dodge Corp. (9th Cir. 1990) 896 F.2d 403, 406, petitioner argues that the DLA Piper rates were presumptively reasonable and since City did not submit evidence of the rates of their out-of-town counsel, the court was bound to make its award based upon the rates that were billed. The argument is unavailing. United Steelworkers merely noted that where defendants do not produce any conflicting evidence, declarations from plaintiffs attorney and other attorneys regarding the fees prevailing in the community are satisfactory evidence of the prevailing market rate. (Ibid.) Here City did produce conflicting evidence. Citys evidence tended to show that it was unreasonable for plaintiff to have engaged attorneys from a high-priced market some distance away without making a good faith effort to secure competent counsel locally. Citys evidence also showed that the prevailing local rates were $325 and $175 per hour for experienced attorneys and associates, respectively. Petitioner did not produce any evidence to conflict with Citys evidence on the prevailing rates in the community. Shapiros declaration, combined with the courts own expertise, established a reasonable basis for the trial courts conclusion pertaining to the reasonable hourly rates.

B.     The Reasonable Number of Hours

The second factor in the lodestar determination is the number of hours reasonably spent in delivering the legal service. Petitioner claims: Hours in this case were billed to a fee paying client and are compensable even if,in perfect hindsight, fewer hours may have been spent. Petitioner maintains that the trial court erred by ignoring the verified time records and declarations of his attorneys. He complains that the court ignored its duty to carefully consider the billings, and make an appropriate finding that awarding [petitioner] full compensation would be unjust. Petitioner does not address the reasonableness of the time his attorneys spent litigating the case. His argument is simply that he was entitled to compensation for all the hours billed. In light of our standard of review, petitioners argument is properly framed not as whether the trial court could have or should have awarded him compensation for all the hours billed but whether California law required the trial court to do so. It clearly does not. Indeed, the case upon which plaintiff relies demonstrates the futility of his argument.

The appellate court in Horsford,stated: The basis for the trial courts calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time. (Horsford, supra,132 Cal.App.4th at p. 395, italics added.) Horsford pointed out that verified fee records submitted by counsel are entitled to credence in the absence of a clear indication they are erroneous. But Horsford did not require the trial court to accept as reasonable the number of hours billed. The trial courts broad discretion to determine the reasonableness of the hours billed by counsel in the context of litigation is well established. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at pp. 1095-1096.) While the inquiry must begin with the actual hours billed, the trial court is not required to presume the hours billed were reasonably necessary to the litigation. Indeed, Horsford expressly acknowledged that the trial court has discretion to increase or decrease the ultimate award in order to . . . ensure a fair and just result. (Horsford, supra,132 Cal.App.4th at p. 394, italics added.) Of concern in Horsford was the trial courts apparent disregard of the relevant factors applicable to the attorneys fee analysis. (Id. at p. 399.) In holding that the courts failure to consider important factors constituted an abuse of discretion, the decision in Horsford merely insisted that discretion be exercised based on actual evaluation of the relevant criteria. (See Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1241.)

1.                  The Reasonable Number of Hours for the CPRA Petition

In the present case, the trial court reduced the number of hours spent prosecuting the CPRA petition by a factor of roughly 7 percent. (Shapiros calculation of $24,207.75 reflected a 10 percent reduction.) This is a relatively minor reduction and well within the evidence before the court. That the trial court carefully considered the evidence is apparent from the trial courts express findings. The trial courts oral ruling, which found that the excesses in the bills for the CPRA petition were not as great as Shapiro had indicated, shows that the court carefully evaluated the billing records. Having presided over the Bernardi case, the court was well aware of the relative complexity of public records cases and the time necessary to pursue them. Although the court did not expressly refer to a lodestar, the court plainly considered the prevailing hour rates in the community and the number of hours worked, the product of which is the lodestar. (See Serrano v. Priest, supra, 20 Cal.3d 25, 48.)

We recognize that, in light of petitioners fee-for-service arrangement with his attorneys, he presumably will have to absorb the difference between that which the trial court awarded and that which he agreed to pay. Plaintiff maintains that this result will discourage private plaintiffs from filing CPRA actions, thereby minimizing the potential benefits of the law. We think not. The trial courts decision compensates at reasonable rates for the services provided. The fact that those rates are less than the rates for which plaintiff contracted merely reflects the trial courts implied finding that plaintiffs selection of high priced counsel was not reasonable. The fact that the court required payment for fewer hours than were billed shows that the court monitored the fee request for reasonableness. The courts determination that the fees it was awarding were reasonable is tantamount to a determination that those fees are full compensation for the services that were rendered. Certainly the courts cannot be expected to turn a blind eye when petitioners seek fees far in excess of that which is reasonable under the circumstances. Although attorneys fees provisions are designed to encourage counsel to take such cases, they do not give petitioners or their attorneys carte blanche to pursue their cases with a skys-the-limit attitude, expecting that the losing party will be required to pay whatever the petitioner spends to prevail.

2.                  The Reasonable Number of Hours for the AttorneysFees Motion

In contrast to the 7 percent reduction in the hours billed for the CPRA petition, the trial courts reduction of the hours billed for the attorneys fee motion is much more drastic. The billing statements submitted show that DLA Piper billed approximately 112 hours for work on the fees motion alone. The court did not expressly state the number of hours it determined would be reasonable but the courts award of $6,000 translates to around 29 hours, roughly 75 percent fewer than the hours actually billed.[4] Shapiro, whose opinion the trial court had expressly found to be persuasive, had opined that a reasonable amount of time for the motion would have been 43 to 51 hours, or $9,620 to $14,300. According to other evidence in the record, counsel in the Bernardi case was awarded compensation for 42 hours for the attorneys fees motion in that case. The courts decision obviously does not rest on any of this evidence.

The courts written findings specifically identify as excessive the time billed for preparing the opposition to the continuance of the hearing on the attorneys fees and motion and the time claimed for preparation of the reply papers relating to the attorneys fees motion. The courts order does not merely reduce the time billed for these items, it, in effect, eliminates all the time billed for them. But the court found the time to be excessive, not unnecessary. Such a drastic reduction suggests that the trial court might have found that nearly $40,000 for an attorneys fees motion was exorbitant to the point of overreaching. But if the court intended to make the award a sanction for overreaching, which the trial court is unquestionably entitled to do (see Serrano v. Unruh, supra,32 Cal.3d at p. 635, fn. 21, citing cases), there is no hint of that in the record. Another possibility is that the court misinterpreted Shapiros declaration. The paragraph that concludes Shapiros opinion pertaining to the attorneys fees motion does not set out the total amount he believed would be reasonable for the attorneys fees motion but its does contain a smattering of other figures pertaining to different aspects of the work Shapiro was evaluating. In short, the experts explanation is confusing and could be easily misinterpreted.

Since there is no clear basis in the record for the amount of fees the trial court awarded for the attorneys fees motion, we shall reverse and remand the matter for the trial court to review the evidence pertaining to this portion of the award and to recalculate the award if, after review of the evidence, the trial court determines a different amount is warranted.

C.     Attorneys Fees on Appeal

Petitioner requests costs and attorneys fees (if any) on appeal. Although petitioner would be entitled to attorneys fees on appeal if he is the prevailing party on appeal (cf. Palmer v. Agee (1978) 87 Cal.App.3d 377, 388), since petitioner appears here in propria persona, he presumably has incurred no attorneys fees. We shall leave his entitlement to attorneys fees, and the amount (if any), to the trial court on remand.

V.                 Disposition

The order of the superior court is reversed. The matter is remanded to the superior court to reconsider that portion of the order awarding attorneys fees for litigating the attorneys fees motion.

Petitioner shall have his costs on appeal.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

[1] Although petitioners opening brief appears to challenge the propriety of the eleventh hour substitution of Judge Dauphin for Judge Fields, his reply clarifies that he is not making such a challenge.

[2] There was no dispute over costs, which were $1,052.83.

[3] We summarily dispose of several matters referenced in the briefs.

There is some dispute whether petitioner had included in his CPRA petition a request for a third category of documents--correspondence to or from Berkley concerning the hotel project. After discussing the issue at some length, petitioner concedes that the question is not relevant to the issues on appeal.

Part of petitioners argument relies upon facts that are not contained in the record, such as what happened after negotiations with Berkley were concluded. We disregard these facts as outside the record. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 328, p. 369.)

A good part of petitioners reply is devoted to contradicting the facts set forth in Citys brief. We disregard the contradictions, taking our understanding of the facts of the case from our review of the record.

[4] We have assumed that of the total time billed, approximately 33 percent is attributable to Chadwick and 67 percent to associates. Using the hourly rates the trial court found to be reasonable ($325 for Chadwick and $175 for the associates), $6,000 represents about 29 hours of attorney time.