McElroy v. City of
Filed 5/30/13 McElroy v. City of San Diego CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
GUY McELROY et al.,
Plaintiffs and Appellants,
v.
CITY OF SAN
DIEGO,
Defendant and Respondent.
D059562
(Super. Ct. Nos. 37-2009-00081178- CU-MC-CTL & 37-2009-00081659- CU-MC-CTL)
APPEAL from
an order of the Superior Court
of
County, Judith F. Hayes, Judge. Affirmed in part; reversed in part with
directions.
Law Office
of Michael A. Conger, Michael A. Conger; and Richard H. Benes for Plaintiffs
and Appellants.
Jan I.
Goldsmith, City Attorney, and Walter C. Chung, Deputy City Attorney for
Defendant and Respondent.
The issues
in this appeal are whether the trial court abused its discretion by
substantially reducing the lodestar amount of plaintiffs' requested attorney
fees under the private attorney general statute (Code Civ. Proc.,
§ 1021.5)
title="">[1]
without specifying which fees it found unreasonable and excessive, and without
any support in the record; and erred by denying plaintiffs' request for other
costs on the sole ground they did not submit the request on a Judicial Council
form. We agree with plaintiffs on the
latter issue, as the use of the Judicial Council form is not mandatory. We reverse the order to the extent it denies
costs and direct the court on remand to consider the merits of the
request. In all other respects, we
affirm the judgment. Under California
law, the court was not required to explain its ruling and, on this record, we
cannot say the court abused its discretion by reducing the lodestar amount.
FACTUAL AND PROCEDURAL BACKGROUND
I.
This court's January 2008
opinion in Sloan v. City of San Diego is
relevant to the instant appeal. (
In Sloan, three City of San
Diego police officers brought a declaratory relief
action requiring the City of San Diego
(the City) to include canine care pay in " 'Base Compensation' " for
purposes of calculating their retirement benefits. Section 24.0103 of the San Diego Municipal
Code (SDMC section 24.0103) defined " 'Base Compensation' " as "
'base salary or wages paid,' " but it also referred to a document entitled
the " 'Earnings Codes Document' " (ECD) as the source for a
"complete listing" of pay classes included in Base Compensation. The City auditor's office annually prepared
the ECD, which lists hundreds of pay classes for City employees, and divides
pay classes into two categories, those " 'INCLUDED IN RETIREMENT BASE
EARNINGS,' " and those " 'EXCLUDED IN RETIREMENT BASE EARNINGS.'
"
At trial,
the police officers produced evidence that the ECD listed " 'canine care
pay' " in the category " 'INCLUDED IN RETIREMENT BASE EARNINGS'
" for the years 2000 through 2005.
During each of these years, several City officials reviewed the ECD and
signed an acknowledgment that the pay items included in retirement base pay
were correct. The City's payroll and
accounts manager testified that historically canine care pay was included in
retirement base pay, but he believed this was a mistake because such pay was
considered overtime pay. The City
introduced a copy of the parties' 2003 memorandum of understanding (MOU), a
collective bargaining agreement.
Although the MOU had expired, the parties continued to act under most of
its provisions. One provision entitled
" 'OVERTIME' " provided that " 'Employees assigned to the Canine
Unit will be paid 3.5 additional hours of compensation each 40-hour work week
at premium rate overtime.' "
The trial
court found for the police officers on the ground the current and previous ECD
expressly included canine care pay in retirement base pay. The court rejected the City's argument the
inclusion was a mistake. The court
entered a judgment stating that SDMC section 24.0103 required the City to
include canine care pay in " 'Base Compensation.' "
The City
appealed, and we held the trial court "(1) properly determined [SDMC]
section 24.0103 incorporates a document known as '[ECD]' to serve as the source
for identifying the specific pay items included in retirement base
compensation; and (2) properly found that canine care pay was included in
retirement base compensation in the [ECD] from 2000 through 2005." We modified the judgment, however, to clarify
its scope as follows: " '[The City]
is required pursuant to [SDMC] section 24.0103 to include canine care pay in
Base Compensation for purposes of calculating retirement benefits. This order applies only to canine care pay
earned after July 1, 2000 and earned at a time when canine care pay was
identified in an [ECD] as within the definition of Base Compensation.'
" (Sloan, supra, D049158.)
II.
Lopez v. City of San Diego (Super.
Ct. San Diego County, 2007, No. GIC869054) (Lopez)
was a companion superior court case to Sloan,
pertaining to the inclusion of motorcycle care pay in police officers' base
pay for purposes of retirement benefits.
The court stayed Lopez pending
the outcome in Sloan because the
issues in the cases were identical.
III.
After the trial court issued the
ruling under review in Sloan, the
City's assistant auditor prepared a new ECD, effective July 1, 2006, which
expressly excluded canine care pay
and motorcycle care pay from base compensation.
This document contained a footnote that stated the previous inclusion of
these items in base compensation was a mistake.
In January 2007 several City officials signed acknowledgments of the new
ECD.
IV.
In June
2008 the Sloan and
into a settlement agreement for the adjustment of their pension benefits and
those of other affected officers. The
settlement agreement did not address the City's amended ECD.
V.
In January
2009 four San Diego police officers, Guy McElroy, David Cookson, Joseph Krouss
and Scott A. Thompson (McElroy plaintiffs),
filed a complaint against the City for declaratory relief. In September 2009 in response to the City's
demurrer, the McElroy plaintiffs
filed a first amended complaint (FAC).
The FAC sought a "peremptory writ of mandate (a) voiding the City's
unilateral amendment of the [ECD], (b) requiring the City to comply with the
terms of its existing pension plan, and (c) to take all necessary steps to
correctly report [the McElroy]
plaintiffs' Base Compensation to the San Diego City Employees' Retirement
System." The complaint alleged the
amendment of the ECD was unlawful for a variety of reasons, including that it
was contrary to our opinion in Sloan.
Also in
January 2009 the San Diego Police Officers' Association (SDPOA), which
represents police officers in labor-related matters, filed a complaint against
the City. In September 2009 after the
City's demurrer was sustained, the SDPOA filed a FAC against the City for a
writ of mandate, seeking the same type of relief as the individual
meeting with the SDPOA before amending the ECD, the City violated the
Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.).
The
represented by Michael Conger, the same attorney who represented the plaintiffs
in Sloan. The McElroy
plaintiffs and the SDPOA here
successfully moved for the transfer of the two actions to superior court judge
Judith F. Hayes, on the ground it would preserve court resources and
plaintiffs' resources because she had handled the Sloan action and was familiar with the issues.
The court
initially abated the McElroy case
pending the outcome of the SDPOA case. In September 2009, however, the court lifted
the stay. The City demurred to the FACs,
and the court overruled the demurrers.
In May 2010 the court consolidated the two cases for all purposes, and
designated the McElroy case as the
lead case. The court scheduled trial for
August 27, 2010.
On August
4, 2010, the parties informed the court they had reached a settlement. On August 18, the court accepted the
action without prejudice. Under the
settlement, the City agreed the "Canine/Motor care pay will be included in
base compensation for retirement purposes for officers who were in the unit
between July 1, 2006 through June 30, 2010," but such pay "will not
be added to base compensation for retirement purposes for any officers who
enter into either unit after July 1, 2010."
Plaintiffs
then moved for attorney fees under the private attorney general statute
(§ 1021.5). Plaintiffs requested a
lodestar amount of $231,590.58, which included:
201 hours for Michael A. Conger in the McElroy case, and 168.7 hours for him in the SDPOA case, all at a rate of $550 per hour, and 19.2 hours for
attorney Richard H. Benes in the McElroy case,
and 29.5 hours for him in the SDPOA case,
all at a rate of $450 per hour.
Plaintiffs requested a multiplier of 1.2 on the lodestar amount. In their fee motion, plaintiffs also
requested $5,867.17 in out-of-pocket costs for Conger, and $473.41 in such
costs for Benes. Plaintiffs later
increased their requested lodestar amount to $249,585.58 to reflect fees
incurred in replying to the City's opposition to their fee request.
In a
tentative order, the court denied fees on the ground section 1021.5 was
inapplicable. After a hearing, the court
took the matter under submission. In a
March 14, 2011 order, the court reversed its finding on section
1021.5's applicability and reduced the lodestar amount of fees to $75,000 on
the ground the requested amount was unreasonable and excessive. The court denied plaintiffs an award of costs
on the sole ground they did not file a Judicial Council form entitled
DISCUSSION
I
Amount of
Attorney Fees Awarded Under Section 1021.5
A
"[E]ligibility
for section 1021.5 attorney fees is established when '(1) plaintiffs' action
"has resulted in the enforcement of an important right affecting the
public interest," (2) "a significant benefit, whether pecuniary or
nonpecuniary has been conferred on the general public or a large class of
persons" and (3) "the necessity and financial burden of private
enforcement are such as to make the award appropriate." ' " (Conservatorship
of Whitley (2010) 50 Cal.4th 1206, 1214.)
When, as here, the amount of
an attorney fees award under section 1021.5 is under consideration, we apply an
abuse of discretion standard of review.
(Id. at p. 1213.)
"The
appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court." (Shamblin
v. Brattain (1988) 44 Cal.3d 474, 478-479.)
"The trial court is the best judge of the value of professional
services rendered in its court, and while its judgment is subject to our
review, we will not disturb that determination unless we are convinced that it
is clearly wrong. [Citations.] 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." (
79 Cal.App.4th 1127, 1134.)
"[T]he
fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e.,
the number of hours reasonably expended 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.' " (
Cal.4th 1084, 1095.) "Generally,
the reasonable hourly rate used for the lodestar calculation 'is that
prevailing in the community for similar work.' " (Center
for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th
603, 616.)
B
Plaintiffs'
principal contention is that the trial court had a sua sponte duty to specify
the fees it disallowed, and the failure to comply with the duty constitutes
prejudicial abuse of discretion.
Plaintiffs assert, "California law regarding the trial court's duty
to explain its award of attorney fees is unclear, and therefore
unsatisfactory." California law is
well settled on the matter, however, and it is contrary to plaintiffs'
position.
In
(Maria P.), the trial court's order
granting attorney fees "contain[ed] certain findings, but [did] not
contain findings on the factual issues of attorneys' hours or rates." (Id.
at p. 1294, fn. omitted.) The California
Supreme Court rejected the contention the trial court was required to issue a
statement of decision under section 632 to explain why it reduced the requested
lodestar amount. (Maria P., supra, at p.
1294.)
200 Cal.App.3d 730, 754-755, explains:
"In California, the trial court has no
findings explaining its calculation of the fee award and the appellate courts
will infer all findings exist to support the trial court's determination. [Citations.]
California courts have stated a disinclination to review the amount of
an award when specific findings were not requested."
In
(Ketchum), the plaintiff complained
that in awarding the defendant attorney fees the trial court "erred by
failing to provide a 'reasoned explanation' for denying his objections to
specific items in the billing records."
(Id. at p. 1140.) Relying on Maria P., supra, 43
Cal.3d 1281, the Supreme Court held
the trial court was not required to issue a statement of decision regarding the
fee award. The court also noted the
defendant did not request a statement of decision, and, " ' "All
intendments and presumptions are indulged to support [the judgment] on matters
as to which the record is silent, and error must be affirmatively shown."
' [Citation.] As we explained in Maria P.: 'It is the burden
of the party challenging the fee award on appeal to provide an adequate record
to assess error." (
In
178 Cal.App.4th 44, 63 (Gorman), the
plaintiffs asserted that apart from section 632, trial courts must explain
their reasoning in attorney fees rulings.
The appellate court held to the contrary, explaining: "We find no California case law analogue
to section 632 requiring trial courts to explain their decisions on all motions
for attorney fees and costs, or even requiring an express acknowledgment of the
lodestar amount. The absence of an
explanation of a ruling may make it more difficult for an appellate court to
uphold it as reasonable, but we will not presume error based on such an
omission. . . . In the absence of evidence to the
contrary, we presume that the trial court considered the relevant
factors." (Gorman, supra,
"When confronted with hundreds of pages of legal bills, trial courts are
not required to identify each charge they find to be reasonable or
unreasonable, necessary or unnecessary."
(Id., at p. 101; see also Melnyk
v. Robledo (1976) 64 Cal.App.3d 618, 625 ["Nor is there any merit to
defendant's contention that it was incumbent upon the trial court to specify
each and every item in defendant's memorandum with which the court found
fault. This would be inconsistent with
the well-established rule . . . that the trial court is
entitled to take all of the circumstances into account and is not bound by the
itemization claimed in the attorney's affidavit"].)
Accordingly,
the trial court's order here is not subject to reversal for lack of
specificity. Notably, the record reveals
that in a motion for attorney fees in the Sloan
case, Conger acknowledged the "Supreme Court has discouraged trial
courts, in setting an attorney's fee, from becoming enmeshed in a meticulous
analysis of every detailed facet of the professional representation." Moreover, as was the case in
plaintiffs here did not request specific findings, and thus we indulge all
intendments and presumptions in favor of the award.
Plaintiffs'
reliance on Dunk v. Ford Motor Co. (1996)
48 Cal.App.4th 1794 (Dunk), is
misplaced. Dunk reversed an order awarding attorney fees because the record
did not reveal whether the trial court applied the lodestar method or the
"common fund approach." (
improper in this case, the record does not reflect the presentation of
information sufficient to properly apply the lodestar approach, and we are
unable to determine how the trial court calculated the fees, the matter must be
remanded." (Id. at p. 1810.) In
or other evidence "in the record showing even an approximation of the
hours actually spent." (
Here, there
is no issue as to the use of the lodestar method. Dunk,
undermines plaintiffs' position, as it rejected the argument the trial court
was required to make formal findings on its calculation of fees in the absence
of a request. (Id. at p. 1807, citing Citizens
Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 233;
Cal.App.3d 1344, 1349 (Rebney).) Rebney explained
that the "record need only show that the attorney fees were awarded
according to the 'lodestar' . . . approach. [¶] . . . The court was
not required to explain which of counsel's hours were disallowed, or how or
whether any hours were apportioned. On
appeal, we must infer all findings on these points in favor of the prevailing
parties." (Rebney, supra,
Plaintiffs
urge us to "articulate, adopt, and apply a rule of California common law
equivalent to federal law," which requires federal district courts to
explain their fee awards with particularity.
California courts, however, have explicitly departed from federal law in
this regard. (See, e.g.,
Cal.App.3d 961, 970.)
name="_ftnref5" title="">[5]
C
In a
related vein, plaintiffs contend that under the authority of
California Ins. Guarantee Assn. (2008) 63 Cal.App.4th 550 (
the requested lodestar amount here by substantially more than the 27.8 attorney
hours specifically objected to by the City, without prior notice and a second
hearing, violated their constitutional due
process rights. We disagree.
excessive because too many hours of work are claimed, it is the burden of the
challenging party to point to the specific items challenged, with a sufficient
argument and citations to the evidence.
General arguments that fees claimed are excessive, duplicative, or
unrelated do not suffice. Failure to
raise specific challenges in the trial court forfeits the claim on appeal."
(Premier, supra, 163 Cal.App.4th at
p. 564, italics added; see also, Gorman,
supra, 178 Cal.App.4th at p. 101 ["The party opposing the fee award
can be expected to identify the particular charges it considers
objectionable"].)
The City
objected to plaintiffs' requested lodestar amount as generally excessive given
the scope of work and identity of issues in the McElroy and SDPOA cases. The City reminded the court that "no
substantial law and motion or discovery was done," and "the only law
and motion that took place . . . were two demurrers and
[the] City prevailed on the first set of demurrers. Under the lodestar approach, a base amount is
calculated from a compilation of time reasonably spent." The City also argued, "Mr. Conger appears
to unscrupulously attempt to double dip on his claimed fees via the fact that
he filed two different actions [McElroy and
SDPOA cases] even though the cases
were identical. In fact, a great
majority of the description and amount of time spent are identical in the
billings of these two cases." The
City cited as an example, 27.8 hours
Conger billed on a few tasks. For
instance, the City advised the court that he billed the SDPOA case for time spent opposing the City's request for judicial
review, when the City made no such request in that case.
It behooves
the opposing party to be specific, of course, to protect appellate rights. The City, however, has not appealed the fee
order and there is no issue of forfeiture.
Premier, supra, 163 Cal.App.4th 550, does not stand for the proposition a
trial court cannot consider general objections in an opposition without giving
prior notice. Moreover, regardless of
the state of the City's opposition, it was but one factor for the court's
consideration. "It is the essence
of arbitrariness to make an award of attorney fees that cannot be justified by
the plaintiffs' request, the supporting bills, or the defendant's opposition." (Gorman,
supra, 178 Cal.App.4th at p. 101, italics added.) As with any fee motion, the court was tasked
with reviewing plaintiffs' supporting evidence and applying its knowledge of
the case to determine whether the hours claimed were " 'reasonably
expended.' " (Ketchum, supra, 24
Cal.4th at p. 1134.)
" 'Due
process requires notice "reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections." ' " (Flores
v. Kmart Corp. (2012) 202 Cal.App.4th 1316, 1329.) As discussed, it is well established that a
trial court has no sua sponte duty to explain the specifics of an attorney fees
award issued after a hearing on a fee motion.
Thus, it surely has no sua sponte duty to give prior notice of the
specifics of an award before issuing it.
Plaintiffs' due process theory is a permutation of their unsuccessful
argument the trial court was required to specify the billing entries it found
unreasonable or excessive.
Plaintiffs'
reliance on Moore v. California Minerals
Products Corp. (1953) 115 Cal.App.2d 834, 837, is misplaced as it held the
trial court was required to give notice and the opportunity to be heard when
the court sua sponte unearthed a
case. Robert G. Beloud, Inc. v. Workers' Comp. Appeals Bd. (1975) 50
Cal.App.3d 729 (Beloud), is also
unhelpful. Beloud held, "Petitioner is
correct . . . in contending that the Board exceeds its
authority when, on reconsideration,
it modifies the amount of attorney fees allowed by the judge without affording
the affected attorney
notice and an opportunity to be heard." (Id. at
p. 734, italics added.) Plaintiffs
ignore the "on reconsideration" language in Beloud. Here, plaintiffs did
not request reconsideration and there was no modification of the court's order.
D
Further,
plaintiffs contend the lack of a specific explanation for the court's ruling
precludes us from determining whether there was any abuse of discretion. It is true that the lack of
substantial reduction of the requested lodestar amount may undermine the
appellate court's confidence in the ruling.
Gorman, supra, 178 Cal.App.4th 44, is illustrative. In Gorman,
the requested lodestar amount was $684,003.75, and without any explanation
the trial court reduced the fees to $416,581.37. The appellate court, noting the trial court's
precision suggested the award was the product of an unknown mathematical
computation, reversed the order and remanded the matter for another hearing. (Id. at
pp. 99, 102.)
The
be able to conclude that the trial court was acting within its considerable
discretion to award reasonable attorney fees if the court had given
any . . . reason[] or cited any factor recognized in case
law for reducing the lodestar amount.
However, after much puzzlement
and frustration, we have been unable to surmise any mathematical or logical
explanation for the trial court's award of $416,581.37. Instead, the number appears to have been
snatched whimsically from thin air. It
is the essence of arbitrariness to make an award of attorney fees that cannot
be justified by the plaintiffs' request, the supporting bills, or the
defendant's opposition. We are unable to
ascertain a reasonable basis for the trial court's reduction of the lodestar
amount." (Gorman, supra,
must be able to be rationalized to be affirmed on appeal." (Ibid.)
In contrast
to Gorman, however, here the trial
court's rationale is scrutable. Its
order states, "[T]he Court finds plaintiff's [sic] requested fees are excessive
and unreasonable. This is especially
true in light of the fact that the action required minimal motion practice and was
resolved by settlement. The hours
claimed are high considering counsel's skill and expertise. The Court denies the application of a
multiplier." (Italics added.)
We conclude
the record supports the court's ruling.
Conger sought and received a transfer of this action to superior court
judge Judith Hayes, who also heard the Sloan
case, on the ground the cases were related.
Conger argued, "Judge Hayes had extensive involvement in
including reviewing and approving a settlement agreement in [
decision in Sloan," and thus
assignment to her "will certainly preserve judicial resources" and
"may also preserve party resources as well, because less briefing will be
involved in educating the Court regarding the facts and circumstances of the
case, the law involved, and the nature of the claims."
Despite
this prediction, plaintiffs here requested a higher number of attorney hours than the plaintiffs in
418.4 hours versus 402.6 hours.
In Sloan, the litigation
spanned three years, including trial on the merits and an appeal. The Sloan
plaintiffs argued Conger undertook a "factual investigation,
conducting all forms of discovery, client communications, and oral advocacy at
all court hearings."
Here, the
duration of the case was roughly half that of Sloan. Further, in contrast
to the scope of work in Sloan, here
there was no trial or appeal on the merits.
The City demurred to the original complaints, and plaintiffs opposed
only the demurrer in the SDPOA case,
because the McElroy case was
temporarily abated. Plaintiffs also
opposed the City's demurrers to the FAC's in both the McElroy and SDPOA cases,
but as the court noted, "the issues in both cases are literally
identical." [Capitalization
omitted.] To a significant extent
plaintiffs' memorandum of points and authorities in both cases are repetitive.
Plaintiffs
point out that they commenced discovery before the settlement, by deposing
three City employees. Plaintiffs'
citations to Conger's billing records show he spent a total of only 8.3 hours
in preparing for and taking the three depositions. Plaintiffs do not claim they undertook any
written discovery or filed any substantive motions.
Moreover,
the court could reasonably find Conger's separate billing statements in the
researching and drafting the FAC in the SDPOA
case, and 10.4 hours for researching and drafting the FAC in the
of 13.2 hours on the FAC's.
The FAC's,
however, are largely identical to the original complaints. The court sustained the City's demurrer to
the original complaint in the SDPOA action
on the ground that it claimed monetary damages, and thus was required to plead
compliance with the Government Claims Act (Gov. Code, § 810 et seq.). The FAC in the SDPOA case consisted of only four pages, compared to seven pages
for the original complaint, and it merely deleted allegations relating to
monetary damages. The
response to the City's demurrer, also based on the Government Claims Act,
without a hearing on the matter. The FAC
consists of seven pages, whereas the original complaint was five pages, but the
pleadings contain many of the same allegations.
Further, on
December 10, 2009, Conger billed the McElroy
and SDPOA cases each 2.1 hour,
for a total of 4.2 hours, to prepare for and attend an ex parte
submitted written documents. Conger's
billings do not indicate he opposed a continuance or prepared any written
response.
Additionally,
on April 16, 2010, Conger billed the McElroy
and SDPOA cases each six hours,
for a total of 12 hours, for preparing for and attending a hearing on the
City's demurrers to the FAC's. The
hearing was held at 10:30 a.m., and thus, as the City points out, for the
entries to be accurate, Conger "would have had to begin 'preparing' for
the hearing at 12:01 a.m. on April 16, 2010 and continued to prepare without
interruption for sleep, meals, etc. up until the actual time of the
hearing."
Plaintiffs
assert that since the City did not specifically object to Conger's December 10,
2009, and April 16, 2010 billing entries at the trial court, the City's
reference to them on appeal is improper under the theory of the case
doctrine. "As a general rule,
theories not raised in the trial court cannot be asserted for the first time on
appeal; appealing parties must adhere to the theory (or theories) on which
their cases were tried. This rule is
based on fairness¾it
would be unfair, both to the trial court and the opposing litigants, to permit
a change of theory on appeal; and it also reflects principles of
al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2012) ¶
8:229, p. 8-155.) Plaintiffs cite
200 Cal.App.3d 1, which applied the theory of the case doctrine to preclude a
party from raising for the first time on appeal a statutory defense to an award of attorney fees under section
1021.7. (Gorton, supra, at pp.
12-13.)
The City
does not raise a new statutory defense to an award of attorney fees under
section 1021.5. Rather, the City merely
comments on the evidence plaintiffs presented in support of their fee
award. With or without any input from
the City, our task is to review plaintiffs' evidence to determine whether it
supports the court's ruling. (Cal. Rules
of Court, rule 8.220(a)(2).)
name="_ftnref7" title="">[7] We conclude the theory of the case doctrine
is inapplicable.
Given such
examples, the court may have rejected Conger's assertion he split his time
evenly between the McElroy and
engaged in double billing. While a
requested lodestar amount is ordinarily considered accurate, as plaintiffs
claim, the evidence may belie such a presumption. (See Harman
v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 416;
82 Cal.App.4th 615, 622.) "[T]he
verified time statements of the attorneys, as officers of the court, are
entitled to credence in the absence of a clear indication the records are
erroneous." (Horsford v. Board of Trustees of California State University (2005)
132 Cal.App.4th 359, 396.) Here, the
court expressly found plaintiffs' attorneys billed an unjustified amount of
time on the case given the identity of issues, the scope of motion practice,
and their skill levels.
"[A]bsent
circumstances rendering the award unjust, an attorney fee award should
ordinarily include compensation for all the
hours reasonably spent" in
litigating the action to a successful conclusion. (Ketchum,
supra, 24 Cal.4th at p. 1133.)
"Reasonably spent" means that time spent "in the form of
inefficient or duplicative efforts is not subject to compensation." (Id. at
p. 1132.) "A reduced award might be
fully justified by a general observation
that an attorney overlitigated a case or submitted a padded bill or that the
opposing party has stated valid objectives." (Gorman,
supra, 178 Cal.App.4th at p. 101, italics added.) " '[P]adding' in the form of inefficient
or duplicative efforts is not subject to compensation." (Ketchum,
supra, 24 Cal.4th a p. 1132.) "A fee request that appears unreasonably
inflated is a special circumstance permitting the trial court to reduce the
award or deny one altogether." (
635.)
Under all
the circumstances, we find no abuse of discretion. "The 'experienced trial judge is the
best judge of the value of professional services rendered in his [or her]
court.' " (Serrano v. Priest (1977) 20 Cal.3d 25, 49; accord,
Cal.4th 738, 752.) The award in this
case is not so small as to shock the conscience, and thus we do not disturb
it. (11382
Beach Partnership v. Libaw (1999) 70 Cal.App.4th 212, 220.)
E
Additionally,
plaintiffs criticize the City for "never offer[ing] any evidence of the
aggregate amount of time spent by the defense
teams on the consolidated cases."
Plaintiffs assert "[i]t can and should reasonably be inferred that,
if the combined lodestar figure of the plaintiffs' attorneys was grossly
disproportionate to the combined lodestar figure of the defense attorneys, the
City would have offered such evidence."
Plaintiffs
cite Stastny v. Southern Bell Tel. &
Tel. Co. (W.D.N.C. 1978) 77 F.R.D. 662, 663-664 (Stastny), which held the opposing party's legal expenses were
relevant in considering the prevailing party's request for fees. Stastny
explains: "In a contest over
what time was reasonably and necessarily spent in the preparation of a case, it
is obvious that the time that the opposition found necessary to prepare its
case would be probative. Each party must
prepare to question the same witnesses, must review the same documents and
other evidence, and must anticipate a presentation by the opposition of a
complexity related to the facts in issue.
Similarly, work on pretrial motions would reflect what volume of work
opposing attorneys deemed reasonable."
The issue
in Stastny, however, was whether the
prevailing plaintiff was entitled to discovery of the amount the defense spent
on attorney fees, including the name and number of hours worked by each defense
attorney. The defense objected to
producing the information on the grounds of attorney-client privilege and
irrelevancy, and the court overruled the objection. (Stastny,
supra, 77 F.R.D. at p. 663.)
opposing a fee motion has any duty to submit evidence of its own fees without a
demand for production, and plaintiffs here do not assert they made any
demand. Plaintiffs' assertion "the
total defense lodestar cannot be known" is attributable to their
inaction. The City was not required to
voluntarily produce the evidence, and no inference arises from nonproduction.
II
Costs
Additionally,
plaintiffs contend the trial court erred by denying their request for costs on
the sole ground they did not submit the request on a Judicial Council form, and
rather presented it in conjunction with their fee request, accompanied by
attorney declarations. The City concedes
the point, and we agree.
Under rule
3.1700(a), a prevailing party seeking costs "must serve and file a
memorandum of costs within 15 days after . . . the date of
service of written notice of entry of judgment or dismissal, or within 180 days
after entry of judgment, whichever is first.
The memorandum of costs must be verified by a statement of the party,
attorney, or agent that to the best of his or her knowledge the items of cost
are correct and were necessarily incurred in the case."
Government
Code section 68511 provides: "The
Judicial Council may prescribe by rule the form and content of forms used in
the courts of this state. When any such
form has been so prescribed by the Judicial Council, no court may use a
different form which has as its aim the same function as that for which the
Judicial Council's prescribed form is designed."
Rule 1.31(a) provides: "Forms adopted by the Judicial Council
for mandatory use are forms prescribed under Government Code section
68511. Wherever applicable, they must
accepted for filing by all courts."
Rule 1.31(b) instructs that "[e]ach mandatory Judicial Council form
is identified as mandatory by an asterisk (*) on the list of Judicial Council
forms in Appendix A to the California Rules of Court." Appendix A does not list the Judicial Council's Form. No. MC-010, entitled
Memorandum of Costs, as a mandatory form.
According to Witkin, Form No. MC-010 is one of the "optional
forms" the "Judicial Council has adopted . . . to
assist courts and parties with the procedural requirements necessary to recover
costs." (7 Witkin, Cal. Procedure
(5th ed. 2008) Judgment, § 139, p. 675.)
The City
asserts plaintiffs are not entitled to costs because they did not request them
within the 15-day period. (Rule
3.1700(a).) Plaintiffs argue the 15-day
period is inapplicable because no written notice of entry of judgment was
served on them, and they requested fees within the 180-day period. (Ibid.) The City has not cited the record to show
otherwise. The City suggests the 15-day
period applies because plaintiffs had actual notice of dismissal, but we deem
the argument forfeited because they do not develop any particular argument or
cite any supporting authority.
DISPOSITION
We reverse
that portion of the order denying the plaintiffs' request for costs, and direct
the court on remand to consider the merits of the request. In all other respects, we affirm the
judgment. The parties are to bear their
own costs on appeal.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
HALLER, J.
name="_ftn1" title="">[1] Further statutory references are also to the Code of Civil
Procedure unless otherwise specified.
name="_ftn2" title="">[2] We deny plaintiffs' May 2, 2012, opposed request for
judicial notice, on the grounds the information was not before the trial court
and it is irrelevant to our decision.
