Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Timothy W. Tower, Judge. Ct. No. GIE028441
NARES, Acting P. J.
Plaintiff Karen Busch appeals a postjudgment order awarding her attorney fees in the amount of $1,000 under Code of Civil Procedure section 527.6 after the trial court granted Busch's petition for a civil harassment injunction against defendant Lori Bradburn. Busch had requested $17,363.75 in attorney fees. She contends the court abused its discretion by: (1) failing to base its decision on the lodestar adjustment method; (2) basing the award on erroneous public policy considerations; (3) erroneously intertwining the analysis of prevailing party with the calculation of reasonable attorney fees; and (4) limiting the award of attorney fees to the retainer she paid her attorney. We affirm the order.
All further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
This action arose from an alleged affair between Busch and Bradburn's husband. In a separate action, Bradburn successfully obtained a restraining order against Busch. Busch brought this section 527.6 civil harassment action against Bradburn, her husband, and two children (collectively the Bradburns) to obtain a restraining order against each of them.
In her petition for relief, Busch made a number of factual allegations. Among them, she claimed that Bradburn made harassing phone calls to her cell phone and the restaurant where she worked. Busch also described an incident where Bradburn drove to her home and yelled obscenities from her car. She claimed Bradburn's daughter attempted to run her off the road with her car and further alleged the Bradburns vandalized her car using eggs and nail polish.
Busch appeared at the first hearing in propria persona. The Bradburns were represented by counsel. Busch then entered into a fee agreement with an attorney, which provided a payment of $1,000 for his services. It also provided that, if the court awarded Busch attorney fees, she must pay such additional amount over $1,000 as the court might award. The agreement specified the attorney's billable rate was $250 per hour.
After the first hearing, Busch's attorney represented her in this action. He spent 9.5 hours preparing for a hearing on September 30, 2005, which was continued due to the failure of Dan Hofmann, a witness subpoenaed by Bradburn, to appear. The Bradburns moved to disqualify Busch's attorney because he previously represented them. Busch's attorney spent 11.9 hours drafting an opposition to the motion and an additional 2.4 hours attending a hearing on the motion. The court denied the motion.
On November 7, 2005, trial began on Busch's petition. Four witnesses testified on behalf of Busch and two on behalf of the Bradburns. The court issued a failure to appear warrant for Hofmann and again continued the matter. Busch's attorney billed 6.8 hours for the time he spent preparing and attending the hearing.
Hofmann finally testified on November 16, 2005. At that hearing, the court found by clear and convincing evidence that: (1) Bradburn threatened Busch; and (2) Bradburn attempted to get Busch fired by telephoning her employer. The court issued a restaining order against Bradburn, but dissolved the temporary restraining orders against Bradburn's husband and children. Busch's attorney billed another 5.3 hours for time spent preparing for the hearing, attending the hearing, and drafting the restraining order.
Busch then filed a motion for attorney fees. Her attorney spent 12.4 hours preparing the motion and estimated that an additional three hours were required to prepare the reply and attend the hearing on the motion. She requested an award based on the 51.3 hours the attorney spent working on Busch's case. Busch's motion requested the court award an enhanced lodestar of $17,363.75, or, in the alternative, an amount equivalent to the unenhanced lodestar of $12,825.00. The court awarded Busch attorney fees, but limited the award to the attorney's retainer: $1,000.
This amount was calculated using the following formula: [36.5 hours x $250 per hour x 1.5 enhancement multiplier] + [15.7 hours x $250 per hour x 1.15 enhancement multiplier] = $17,363.75.
This amount was calculated according to an unenhanced lodestar formula: 51.3 hours x $250 per hour = $12,825.00.
In its decision, the court reasoned as follows:
"The basic concept and philosophy of the Civil Harassment Restraining Order statutes is much like Small Claims; to provide a swift, inexpensive means to obtain protection from civil harassment which peace officers on [their] own, or even prosecutors, are unable to provide. The scheme of the statutes contemplates that non-attorneys will seek and defend against the issuance of orders to protect individual safety. . . . [¶] Anything that has a tendency to discourage citizens (or others) from seeking the protection of the Court for [their] own safety would be contrary to public policy. . . . When a party exercises his or her right to retain an attorney in a civil harassment matter, the risk arises of discouraging the use of such an approach to resolving differences due to the potential expense for the other party, both in possibly retaining his or her own attorney or in potentially having to pay the opposition's attorney fees. . . . [¶] In cases where one side must have an attorney to effectively prosecute or defend his or her case, some attorney fees may be justified; e.g., where the opposition hires an attorney or where the party is not really competent to present his or her own case in this context. These are not the most common of civil harassment cases, and when they do occur, public policy dictates that awards for attorney fees be kept to a minimum and be completely justified. [¶] In the present case, Petitioner Busch first appeared without an attorney but Respondent Bradburn hired a lawyer, so the Petitioner responded by hiring her own attorney. This was not unreasonable because otherwise she would have to face an opposing attorney without any professional help. Petitioner's attorney did put in a great deal of time and effort, but the expense to the petitioner was limited to $1,000.00 per contract, unless the Court awarded attorney fees and awarded an amount in excess of $1,000.00. This Court cannot justify an award of attorney fees in excess of $1,000.00 under these circumstances; or indeed, under most circumstances. If the Court were to award substantial attorney fees to plaintiff in this case, it could not withhold substantial attorney fees to a respondent[] in some other case where respondent prevails; which in turn will quickly lead to discouragement of petitioners from seeking the protection of the Court and may cause respondents to 'cave in' to avoid an award of substantial fees, even where the respondent might have a legitimate defense. . . . [¶] The Court also considered in this case that the questions were close enough that the defense was not outrageous. Some of the proceedings did not even involve issues relating to the issuance of a restraining order, but instead related to whether the petitioner's attorney had a conflict of interest and was disqualified. This litigation was completely outside of personal safety issues and was brought on, predictably by petitioner's choice of counsel. [¶] Finally, the amount requested by petitioner for attorney fees is totally and completely outside what is reasonable for cases of this kind. Charging $250.00 an hour is excessive and even $100.00 is probably excessive for this kind of case. [¶] The Court awards Petitioner Busch $1,000."
DISCUSSION
Busch contends the trial court abused its discretion by (1) erroneously awarding her attorney fees in the amount of $1,000 as opposed to the lodestar ($12,825.00) or enhanced lodestar ($17,363.75); (2) basing the award on erroneous public policy considerations; (3) erroneously intertwining the analysis of prevailing party with the calculation of reasonable attorney fees; and (4) limiting the award to the retainer she paid her attorney. We reject these contentions.
A. Standard of Review
The trial court is the best judge of the value of legal services rendered in its court and, although its judgment regarding an award of attorney fees is subject to review, it will not be disturbed unless the appellate court is convinced the award is clearly wrong. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095, citing Serrano v. Priest (1977) 20 Cal.3d 25, 49 (Serrano III).) Thus, we will only reverse an award of attorney fees where there has been a manifest abuse of discretion. (Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 228.)
B. Applicability of the Lodestar Adjustment Method
Section 527.6, subdivision (i) provides that in actions for civil harassment, "[t]he prevailing party in any action brought under this section may be awarded court costs and attorney's fees, if any." (Italics added.)
Busch argues fees awarded under section 527.6, subdivision (i) must be calculated according to the lodestar adjustment method adopted in Serrano III, supra, 20 Cal.3d 25. In Serrano III, the Supreme Court held the lodestar method was fundamental to arriving at an objectively reasonable amount of attorney fees awarded under a private attorney general theory. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322.) Since that decision, the Courts of Appeal have applied Serrano III under a broad range of statutes authorizing attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134-1135.) However, the Supreme Court has emphatically rejected a blanket "lodestar only" approach. (Id. at p. 1136.) Although the fee-setting inquiry in California ordinarily begins with the lodestar (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1095), every fee-shifting statute must be construed on its own merits. (Ketchum, supra, 24 Cal.4th at p. 1136.) To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether. (Id. at p. 1138.)
The lodestar is a "careful compilation of time spent and reasonable hourly compensation." (Serrano III, supra, 20 Cal.3d at p. 48.) It may be augmented or diminished based on factors set forth in Serrano III. (Id. at p. 49.) Those factors include: "(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing law suits of the character here involved; [and] (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed . . . ." (Ibid., fn. omitted.)
Busch argues the court must make a lodestar calculation of attorney fees under section 527.6, subdivision (i) because section 527.6 does not expressly reject the Serrano III approach. In support of this contention, Busch relies on California's private attorney general statute, section 1021.5, which, as amended in 1993, states that attorney fees awarded to a public entity under the statute "shall not be increased or decreased by a multiplier based upon extrinsic circumstances, as discussed in [Serrano III]." Busch argues that the Serrano III rule must be imputed to any statute that does not specifically exclude it. However, the legislative history of section 1021.5 does not support this assertion.
Serrano III concluded a court could award attorney fees under a "private attorney general" theory and adopted the lodestar adjustment method as the means of calculating those fees. (Serrano III, supra, 20 Cal.3d at pp. 48-49.) "At almost the same time Serrano III was decided, the Legislature enacted section 1021.5, providing statutory authority for court-awarded attorney fees under a private attorney general theory." (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 640 (Flannery).) As enacted, section 1021.5 did not expressly adopt the lodestar adjustment method. (Former § 1021.5, added by Stats. 1977, ch. 1197, p. 3979.) However, the Supreme Court decreed that a trial court's discretion to award fees under section 1021.5 must be based on the lodestar adjustment method discussed in Serrano III. (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 321.) In 1993, the Legislature amended section 1021.5 by adding language that expressly rejects Serrano III insofar as that decision allowed fees awarded to a public entity to be increased or decreased by a multiplier based on extrinsic circumstances. Courts interpreting the amended version of section 1021.5 have uniformly concluded that by only changing the statute in part, the Legislature intended to implicitly endorse the lodestar adjustment method in other contexts. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1135.)
Hence, the legislative history shows the reference to Serrano III in section 1021.5 was not intended to carve an exception into a general rule for calculating attorney fees applicable to all fee-shifting statutes. The Legislature deemed the amendment's language necessary to clearly articulate the substantive law of section 1021.5. Namely, contrary to the language of Serrano III, lodestar enhancements are not available to public entities. (§ 1021.5.) Nothing in the legislative history or "Serrano [III] jurisprudence" suggests the Legislature intended to give Serrano III a blanket effect over all fee-shifting statutes. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1136.)
Moreover, Busch concedes in her brief that the court's decision should be reviewed under the abuse of discretion standard. The record shows the court considered Busch's requested amount of attorney fees. Her motion for attorney fees specified the hourly rate and number of hours her attorney spent on her case. Busch's attorney made no oral argument on the issue of whether the lodestar calculation was justified or reasonable. The court noted in its statement of decision that Busch's counsel put in a great deal of time and effort. However, it concluded that $1,000 was the most it would award under the circumstances presented in this case. It further determined the motion to disqualify was predictable in nature and could have been avoided. Finding the amount requested by Busch unreasonable, the court awarded $1,000. As stated, ante, courts have broad discretion to adjust a fee downward or deny an unreasonable fee altogether. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1138.) In fact, section 527.6, subdivision (i), being permissive, would have allowed the court to deny fees altogether. The court did not arbitrarily value the legal services provided by Busch's attorney and did not abuse its discretion in setting the award at $1,000.
At the May 12, 2006 hearing on the issue of attorney fees, Busch's attorney argued (1) that the motion should not be struck for failure to check the attorney fees box on the original complaint and (2) an award of attorney fees for Busch would not be unfair because of the motion to disqualify. He then stated, "And on the other points, I will let my papers speak."
Busch also argues she is entitled to an enhancement multiplier on the lodestar for contingency risk. Our disposition regarding the trial court's application of the lodestar adjustment method is dispositive of Busch's claim that she is entitled to any enhancements on a lodestar.
C. Public Policy
Busch contends the court abused its discretion by basing the attorney fee award on erroneous public policy considerations. The court's decision to limit attorney fees to $1,000 was derived, in part, from a consideration of the public policy underlying section 527.6. The court noted the policy against deterring harassed persons from seeking protection from the courts for their safety. The court further acknowledged the statutory scheme of section 527.6, which provides swift and inexpensive relief, could potentially be undermined by awards of substantial attorney fees.
The legislative history of section 527.6 shows the court's policy considerations were proper. Before section 527.6 was enacted, victims of harassment could only bring a civil action for damages under an invasion of privacy or intentional infliction of emotional distress theory. (See Assem. Com. on Judiciary, Digest of Assem. Bill No. 3093 (1977-1978 Reg. Sess.) April 27, 1978, p. 1.) The legislative history further shows section 527.6 regulates a type of conduct that is similar to, and in many cases more severe than, criminal conduct. (Assemblywoman Leona H. Egeland, letter to Governor Edmund G. Brown, Jr., Sept. 7, 1978, p. 1.) However, the Legislature determined that petitioners could too easily abuse a statute that imposed a criminal penalty. After the Assembly Committee on Criminal Justice recommended against a criminal harassment statute, the Legislature proposed a civil remedy to provide swift, effective relief. (Id. at p. 2.) "[S]ection 527.6 is not an ordinary civil action. [Citation.] The statute provides for an action to be completed in a matter of weeks and incorporates an expectation that victims may often seek relief without the benefit of a lawyer." (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1573 (Siam).)
This history illustrates that the rationale the court used to determine the amount of attorney fees was not erroneous. However, Busch contends that because policy arguments similar to those made by the trial court were rejected in Thomas v. Quintero (2005) 126 Cal.App.4th 635 (Thomas), this trial court abused its discretion. We reject this contention.
In Thomas, the court held that "petitions brought [under] section 527.6 are subject to attack by a special motion to strike under section 425.16" (California's anti-SLAPP statute). (Thomas, supra, 126 Cal.App.4th at p. 652.) The court reasoned that allowing an anti-SLAPP motion to strike would add little disincentive to invocation of the civil harassment remedy. (Id. at p. 651.)
We do not read Thomas to reject the validity of the civil harassment statute's underlying purpose. Rather, the court merely determined those policies were not sufficiently implicated to justify denying the right to file a special motion to strike. Section 527.6 encourages petitioners to seek the safety of the courts. It was not an abuse of discretion for the court to consider this policy when it awarded attorney fees.
Busch also relies on Siam, supra, 130 Cal.App.4th 1563, to show the fee award she requests is consistent with the purpose of section 527.6. In Siam, the trial court awarded the plaintiff more than $12,000 in attorney fees under section 527.6 as sanctions for the defendant's frivolous petition. (Siam, supra, at p. 1573.) The appellate court held "the unsuccessful filing of a petition for an injunction under section 527.6 may not form the basis for a malicious prosecution action." (Siam, supra, at p. 1574.) It based this conclusion on section 527.6, which authorizes the imposition of sanctions for frivolous or delaying conduct. (Siam, supra, at p. 1574.) The court expressed concern that malicious prosecution claims would frustrate the streamlined procedure of 527.6 and noted that the risk of subsequent litigation might dissuade victims of serious harassment from seeking a section 527.6 remedy.
Siam does not support Busch's contention and, indeed, supports the court's order. First, the Siam court based its holding, in part, upon the fact that section 527.6 petitions are designed to provide quick, inexpensive relief. Further, the trial court awarded fees because the defendant's petition was frivolous. The court in Siam exercised its discretion under factually distinguishable circumstances. Here, the court acknowledged this was a close case. Busch sought civil harassment orders against four people. She only prevailed against Bradburn. Indeed, the trial court almost denied this relief, but was ultimately persuaded by Busch's oral argument in favor of issuing the restraining order. Although a trial court may use its discretion to award attorney fees as sanctions for a frivolous petition (Siam, supra, 130 Cal.App.4th at p. 1574), those circumstances are not implicated here.
Further, Siam did not address the issue of whether the trial court abused its discretion by awarding $12,000 in attorney fees. The court stated that one reason the tort of malicious prosecution should not be applied to a section 527.6 action was because section 527.6, subdivision (i) allows the trial court to impose sanctions for frivolous or delaying conduct. (Siam, supra, 130 Cal.App.4th at p. 1574.) Therefore, the court's statement that "under most circumstances" substantial attorney fees are not appropriate in section 527.6 actions is consistent with Siam.
Siam also held that the risk subsequent litigation would deter petitioners from seeking a civil harassment remedy outweighed the benefit of allowing malicious prosecution claims to proceed against section 527.6 petitioners. (Siam, supra, 130 Cal.App.4th at p. 1573.) Both substantial attorney fees and expensive subsequent litigation have the effect of discouraging future petitioners from seeking a civil harassment remedy. Therefore, contrary to Busch's argument, Siam in fact validates the trial court's policy justifications for setting the fee award at $1,000.
We conclude the policy considerations which the trial court factored into its decision were proper. The court's decision is consistent with the legislative purpose of section 527.6 and its discretion to determine a reasonable award of attorney fees that executes that purpose.
D. Appropriateness of Award Versus Amount of Award
Under section 1021.5, according to the Supreme Court's interpretation of the private attorney general statute, "[w]hether an award is justified and what amount that award should be are two distinct questions, and the factors relating to each must not be intertwined or merged." (Flannery, supra, 61 Cal.App.4th at p. 647.) Busch relies on cases interpreting section 1021.5 to argue the trial court abused its discretion by improperly intertwining policy considerations as to whether fees should be awarded at all with the amount of attorney fees due under section 527.6. The amount, she argues, must be determined by the Serrano III factors. Busch's reliance on cases interpreting section 1021.5 is misplaced.
In Press v. Lucky Stores, Inc., supra, 34 Cal.3d at page 323, a section 1021.5 case, the Supreme Court held that a trial court must calculate a positive or negative multiplier for an award of attorney fees on the range of factors discussed in Serrano III. Because the trial court applied a negative multiplier (which only awarded 1/185 of the enhanced lodestar) that was not based on these factors, the Supreme Court concluded the trial court abused its discretion.
In Flannery, supra, 61 Cal.App.4th at page 647, the Court of Appeal held a trial judge may not use section 1021.5's requirement that the successful party confer a "significant benefit" on the general public to justify an enhancement multiplier. It noted that factors used to determine if fees should be awarded cannot also be used to justify an enhancement.
"[E]very fee-shifting statute must be construed on its own merits and nothing in Serrano [III]jurisprudence suggests otherwise." (Ketchum v. Moses, supra, 24 Cal.4th at p. 1136.) As we previously discussed, a blanket lodestar approach would undermine the purpose of section 527.6, which is to provide expedited injunctive relief. A trial court in a section 527.6 case may find the Serrano III factors helpful for setting the amount of attorney fees. However, Press does not mandate rigid adherence to those factors in a civil harassment action. We construe the fee-shifting provisions of section 527.6 in a manner that will effectuate the purpose of the statute and conclude it was not an abuse of discretion for the court to consider the potential effect a substantial fee award could have on future petitioners when it set the amount of attorney fees to which Busch was entitled.
Furthermore, the analysis in Flannery is inapplicable to a section 527.6 action. There is no "significant benefit" requirement in section 527.6. The trial court used its discretion to determine Busch was a prevailing party where she was unsuccessful in her claim against three of the four defendants. It further determined public policy (in addition to other factors) justified limiting the section 527.6 fee award to a sum the court deemed reasonable. Because there was no manifest abuse of discretion, we uphold the court's attorney fee award.
E. Limiting Attorney Fees to Retainer
Last, Busch contends that where a lawyer is retained on contingency basis in a section 527.6 action, the retainer paid by the client should never be the basis for an award of attorney fees. In support of her argument, Busch cites Dowling v. Zimmerman (2001)85 Cal.App.4th 1400, 1425, 1426. In Dowling, this court rejected the argument that the award of attorney fees to a prevailing party under section 425.16 (California's anti-SLAPP law) should be limited to the amount of a "nominal" retainer ($1,300). (Dowling, supra, at p. 1426.) We held $9,300 (reduced from the $61,862.50 requested) was a reasonable award of attorney fees. (Ibid.)
Although the anti-SLAPP statute provides its own unique form of expedited relief, a SLAPP defendant ordinarily must have legal representation regardless of whether the defendant is an attorney or initially appears in the action in propria persona. (Dowling v. Zimmerman, supra, 85 Cal.App.4th at p. 1425.) In contrast, the civil harassment proceeding is expedited and does not ordinarily require assistance of counsel. Dowling merely held that the court's award under section 425.16 was not an abuse of discretion. Our holding in that case does not support the proposition that this trial court abused its discretion by finding that an award equivalent to a $1,000 retainer was a reasonable award of attorney fees under section 527.6.
This conclusion is buttressed by the plain language of the two statutes. The Legislature specifically provides mandatory attorney fees be awarded under section 425.16, subdivision (c), and subdivision (a) states "this section shall be construed broadly." The language indicates the Legislature designed the fee-shifting provisions of section 425.16 to discourage SLAPP suits from being filed. However, the fee-shifting provisions of section 527.6 do not impose a mandatory award, nor is there an indication the Legislature intended for courts to interpret the fee-shifting provisions of 527.6 broadly. The Legislature used language in the fee-shifting provision of section 425.16 that is significantly different from section 527.6, subdivision (i), and each statute must be interpreted in light of its unique purpose. The court did not abuse its discretion by setting the reasonable amount of attorney fees for Busch at $1,000.
Busch also argues that limiting attorney fees awards under section 527.6, subdivision (i) could potentially prevent lawyers from taking such cases. We acknowledge the existence of such a risk. However, a number of factors allay Busch's grim forecast.
First, as discussed ante, section 527.6 provides a unique mechanism for obtaining relief from harassment. The statute was enacted because of the insufficiency of standard civil and criminal proceedings to provide an effective remedy in an expedited manner. Consequently, substantial attorney fees should not accrue in a typical civil harassment proceeding because it is more expedient than standard litigation.
Second, the Judicial Council of California has taken care to provide detailed instructions to litigants about the civil harassment procedure, all written in plain language for the layperson. (Thomas, supra, 126 Cal.App.4th at p. 651.) Although a petitioner may reasonably choose to employ an attorney, assistance of counsel is not imperative.
Lawyers may adjust their billing rates and representation agreements to ensure they are appropriately compensated in civil harassment lawsuits. However, section 527.6 is first and foremost a shield. Its primary goal is to secure individual safety, simply and expeditiously. (Siam, supra, 130 Cal.App.4th at p. 1573.) Section 527.6, subdivision (i) must be interpreted in light of this purpose.
A successful result does not automatically require the court to award the amount a party requests. The trial court makes the determination of reasonableness based on all the circumstances. Here, the trial court provided a reasoned decision which evaluated the relevant policy and the circumstances of the case. The award was a reasonable exercise of the trial court's discretion.
DISPOSITION
The order is affirmed.
WE CONCUR: HALLER, J., AARON, J.