Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco Co. Super. Ct. No. JCCP 4033
Jones, P.J.
Appellants in this action are objectors to a class action settlement who contend the trial court erred when it approved the settlement and awarded attorney fees. We conclude the court did not abuse its discretion and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1997, several private antitrust class actions were filed in federal court against the manufacturers of flat glass products alleging they had conspired to fix prices. (In re Flat Glass Antitrust Litigation (3rd Cir. 2002) 288 F.3d 83, 86.) Under federal law, only direct purchasers may recover damages for price fixing. (See Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 20.) California law, by contrast, permits indirect purchasers to recover. (Bus. & Prof. Code, § 16750, subd. (a).) Therefore, shortly after the federal actions were filed, the first of what ultimately became eight class actions were filed in California courts seeking damages on behalf of indirect purchasers of flat glass products. The cases were coordinated by the Judicial Council and assigned to the San Francisco Superior Court. Ultimately, the Honorable Richard Kramer was assigned to be the coordination trial judge.
Flat glass products are, as the name implies, products that are produced from flat sheets of glass such as window panes, mirrors, and automotive glass. Flat glass does not include molded glass products such as bottles, jars, and drinking glasses.
In February 2000, the district court in the federal action granted final approval to settlements totaling $53,700,000 against four of the defendants: Pilkington plc and Libby-Owens-Ford Company for $17,000,000; AFG Industries, Inc., for $19,800,000; and Guardian Industries, Inc., for $16,900,000.
In November 2002, the class plaintiffs in the coordinated California action settled with these same four defendants for $4,500,000. In December 2002, the court granted preliminary approval of the settlement. Notice to the class was provided and it informed class members that up to one-third of the settlement fund would be used to pay for court approved attorney fees and costs. No class member asked to be excluded from the settlement and there were no objections to the plan of distribution or the attorney fees. In April 2003, the court granted final approval of the settlement, and awarded $1,350,000 in fees and $28,635.14 in costs. The fees represented 30 percent of the settlement amount. In January 2004, the court made a second fee award of $75,000 based on work done since the 2003 fee award. The two fee awards together, constituted approximately 32 percent of the settlement amount.
In January 2002, the district court in the federal action granted final approval to a settlement against another defendant, Visteon on behalf of Ford Motor Company. This left PPG Industries, Inc., as the sole remaining defendant in the federal action. In May 2003, the district court in the federal action granted PPG’s motion for summary judgment finding the evidence that it had engaged in a conspiracy to be “weak, at best.”
In July 2004, class plaintiffs in the state action settled with Visteon on behalf of Ford Motor Company, for $150,000. The court approved the settlement in June 2005. Class counsel did not seek an award of fees in connection with this settlement. This left PPG as the only remaining defendant in the state action.
In September 2004, the Third Circuit Court of Appeal affirmed the ruling of the district court with respect to automobile replacement glass, but reversed as to other types of flat glass. (In re Flat Glass Antitrust Litigation (3rd Cir. 2004) 385 F.3d 350, 378.) After the case was remanded, PPG completed discovery and prepared for trial. In October 2005, shortly before trial was due to commence, PPG settled the federal action for $60,000,000.
In November 2006, class plaintiffs in the California action reached a settlement with PPG for $2,500,000. The court granted preliminary approval of the settlement and notice to the class was published.
Appellants in this appeal are individuals who claim to be a member of the California settlement class. On April 6, 2007, they filed objections to the proposed settlement and to the proposed fee award. A final settlement hearing was conducted on May 30, 2007. The court granted final approval to the settlement finding it to be “fair, adequate and reasonable.” At the same hearing the court awarded attorney fees and costs in the amount of $756,002.59.
While this case was being briefed, appellants filed a motion that asked this court to take judicial notice of pleadings and documents that were submitted in an unrelated class action litigated in Stanislaus County. We deferred ruling on the request until the merits of the appeal. Having now considered the request, we deny it. An appellate court can, but is not required to, take judicial notice of material that was not presented to the trial court in the first instance. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.) The court declines to take judicial notice of the material appellants have identified. Having reached this conclusion, we also deny respondents’ “conditional” request for judicial notice.
A. Whether the Court Abused its Discretion When it Approved the Settlement
Appellants contend the trial court erred when it approved the settlement with PPG. The standard of review we must apply is settled. “A trial court must approve a class action settlement agreement and may do so only after determining it is fair, adequate, and reasonable. [Citation.] It is vested with a broad discretion in making this determination. [Citation.] In exercising its discretion, that court should consider relevant factors, which may include, but are not limited to the strength of the plaintiffs’ case, the risk, expense, complexity and duration of further litigation as a class action, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of class members to the proposed settlement. At the same time, the trial court should give ‘[d]ue regard . . . to what is otherwise a private consensual agreement between the parties.’ [Citation.] Such regard limits its inquiry ‘“to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.”’ [Citations.] The trial court operates under a presumption of fairness when the settlement is the result of arm’s-length negotiation, investigation and discovery that are sufficient to permit counsel and the court to act intelligently, counsel are experienced in similar litigation, and the percentage of objectors is small. [Citation.] Ultimately, the court’s determination is simply ‘“‘an amalgam of delicate balancing, gross approximations and rough justice. [Citations.]’”’” (In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706, 723, fn. omitted.)
An appellate court is “limited to a review of the record to determine whether it discloses a clear abuse of discretion when the trial court’s determination of fairness is challenged on appeal. We do not substitute our notions of fairness for those of the trial court or the parties to the agreement. [Citation] ‘To merit reversal, both an abuse of discretion by the trial court must be “clear” and the demonstration of it on appeal “strong.”’” (In re Microsoft I-V Cases, supra, 135 Cal.App.4th at p. 723.)
Applying those principles here we conclude the court did not abuse its discretion when it approved the settlement with PPG. The record indicates the settlement was the product of arms’ length negotiations. Discovery in the federal action was complete (indeed, the case was ready to be tried) and the state class action plaintiffs monitored and participated in that discovery. Under a pretrial order, all discovery taken in the federal action was deemed taken and usable in the state action. The record indicates class counsel were very experienced in class actions. The percentage of persons objecting to the settlement was very small consisting of only nine persons represented by a single attorney. The settlement here was entitled to a presumption fairness. (In re Microsoft I-V Cases, supra, 135 Cal.App.4th at p. 723.)
Furthermore, even without the presumption, there was ample evidence to support the conclusion that the settlement was fair. PPG agreed to pay nearly $1,000,000 more than any other defendant. The amount PPG agreed to pay was roughly proportional to its national market share of flat glass products. It was not at all certain that the class plaintiffs would prevail. The district court in the federal action characterized the evidence against PPG to be “weak, at best” and granted summary judgment to PPG. While the federal appellate court subsequently reversed that decision in part, ruling the evidence was at least sufficient to proceed to trial, the district court’s frank characterization clearly indicates that a plaintiffs’ verdict was not a foregone conclusion. Indeed, it appears that the plaintiffs faced significant problems when proving their case. An indirect purchaser plaintiff must prove not only that a conspiracy resulted in an illegal overcharge, but that the overcharge, or at least some part of it, was passed on to the plaintiff. (Union Carbide Corp. v. Superior Court, supra, 36 Cal.3d at p. 23.) The experienced trial judge in this case expressed how this additional element of the plaintiffs’ proof makes the indirect purchaser case significantly more difficult. “[T]here are two very important components in any indirect purchaser case that I think are attendant to this type of unfair business practices type of litigation. First is proving the pass through to indirect purchasers, and the second is proving the amount of a pass through to indirect purchasers. [¶] It is a risk in this kind of case that doesn’t exist[] in most other types of cases like this and doesn’t exist[] in the same format in the primary direct purchaser antitrust litigation, although it sometimes shows up as a defense that the plaintiffs passed on the costs to their customers. Easier to prove that when you’re dealing with a discrete group of plaintiffs than when you’re talking about not just a wider range of customers in an indirect purchaser case but often multiple levels of distribution, the wholesaler, the retailer and often stages in between.”
The trial court, balancing these factors, could rationally conclude the settlement here was fair, adequate, and reasonable. We conclude the court did not abuse its discretion.
In arguing the trial court erred, appellants rely primarily on declarations that plaintiffs’ counsel submitted in this and other cases that indicate a settlement in an indirect purchaser case typically is approximately 10 percent of the federal settlement. Appellants suggest the settlement here, which was approximately 4 percent of the federal settlement, is inadequate by that measure. However, as the trial court explained, the amounts paid to settle other cases is simply one tool a court can use to evaluate a settlement: “they are not scientifi[cally] precise measures, but they do give some assistance to this Court, some sort of a benchmark to look to to see whether or not the numbers are reasonable, reasonable is a relative term, reasonable relative to other settlements in the same case and a pattern in similar litigation is certainly an analytical tool, not determinative but nonetheless helpful to this Court’s analysis.” Given the other factors we have discussed above, such as the weakness of plaintiffs’ case and the fact that PPG was paying an amount that was roughly equal to its market share, the court could reasonably conclude the settlement was fair even though it did not come up to the threshold of other cases.
B. Whether the Court Erred when Awarding Attorney Fees
The trial court awarded $750,000 in attorney fees, plus $6,002.59 in costs, reaching that figure by using both the lodestar-plus-multiplier and percentage fee methods. The award represented approximately 30 percent of the settlement fund. The court then left it up to counsel for the 10 law firms that were seeking fees to distribute the award amongst themselves, subject to the court’s supervision if counsel could not agree. Appellants now contend the trial court erred when it awarded attorney fees.
Our review of the trial court’s ruling is “highly deferential.” (Children’s Hospital & Medical Center v. Bonta’ (2002) 97 Cal.App.4th 740, 777.) “The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his 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.) We find no abuse here.
We turn first to whether the award was justified under the lodestar method. Under the lodestar approach, a lodestar figure is calculated by multiplying the reasonable hours expended by a reasonable hourly rate. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 254.) The court may then adjust the fee upward or downward using a multiplier. (Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 833.) “Multipliers can range from 2 to 4 or even higher.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 255.) In determining whether to apply a multiplier, courts consider: “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)
Here, most of the 10 firms seeking fees submitted declarations asking for a lodestar based on the number of hours worked, the hourly fee charged for that work, and the tasks accomplished. For example, Eric B. Fastiff submitted a declaration that stated his firm, Lieff, Cabraser, Heimann & Bernstein, had spent a total of 78.8 hours on the litigation during the relevant time period. Those hours were broken down by staff members and the amount that each charged per hour. Fastiff also described the tasks his firm had accomplished: “The firm performed, among other things, the following tasks associated with this litigation: drafted the protective order, drafted a class certification brief, drafted an application for a restraining order, conducted factual investigation, edited settlement documents, conferred with co-counsel regarding settlement strategy; drafted various preliminary and final settlement approval briefs and orders.” Fastiff sought a lodestar of $40,305.50 on behalf of his firm.
The exception was attorney Francis Scarpulla who began working on the case when he had his own firm, but who later joined Zelle, Hofmann, Voelbel, Mason & Gette, LLP. Scarpulla submitted a declaration that described the work performed at his new firm, but not the work performed at his old firm. To correct this omission, Scarpulla submitted his timesheets to the court for in camera inspection.
Similarly, R. Alexander Saveri of the firm Saveri & Saveri submitted a declaration that stated his firm had spent a total of 371 hours on the litigation. Those hours were broken down by attorney and amount that each charged on an hourly basis. Saveri also described the work his firm had performed, stating the firm “negotiated the PPG Industries settlement, drafted the PPG Industries settlement agreement, prepared the motion for preliminary approval of the PPG Industries settlement, worked with the claims [administrator] in sending notice to the class regarding the PPG Industries settlement, prepared the memorandum in support of final approval of the PPG settlement, worked with co-counsel in responding to objections to the PPG settlement, and p[er]formed additional services as required of Liaison Counsel for Plaintiffs.” Based on that work, Saveri sought a lodestar of $160,218.75.
The lodestars sought on behalf of all 10 firms were then collected in an exhibit. It indicated class counsel were seeking a total lodestar of $350,476.75.
The trial court analyzed the lodestar request closely and found it to be reasonable: “in my view, a judge should not rely solely on just what the lawyers have submitted but should tap into other resources for the purpose of determining whether or not the lodestar request is reasonable” “What do I tap into? As I mentioned in the past in this case, other approvals I’ve made on other settlements and in virtually every case that I could remember if not literally every case I could remember approving a lodestar or analyzing a lodestar, in addition to what the lawyers have described, I pull out the docket sheet, which is the Court record of everything that happened in the case, to look at not just the quantity of work and filings but the sequence of events to see what sorts of gaps might exist in the activity presented to the Court, to see what kinds of matters were presented to me, and to supplement what the lawyers tell me they did with what I saw was going on in the case or what I didn’t see but what got filed in the case.” “The other thing that I do in evaluating a lodestar is tap into my experience on what it takes to run one of these cases. I did it for a living for 24 years, I’ve done it as the complex litigation judge for five years, I’ve got a very good handle on what it takes to investigate, file, prosecute, try to settle, document a settlement, and do all the rest of the other festivities that have to occur in these cases . . . .” “I believe that combining all of the tools that I applied here and reviewing all the factual material presented that the quantity of time requested is reasonable for the activities reported by the lawyers, observed by me, [reflected] in the file and consistent with the way these cases are prosecuted and what it takes to be a plaintiff in one of these cases, the quantity of hours is reasonable.”
The court also concluded that the rate charged by counsel was reasonable: “The rates for services rendered by lawyers with the level of experience and skill of the lawyers . . . is consistent with prevailing rates in the legal community of each of the timekeepers and therefore are reasonable and appropriate.”
Finally, the court concluded it was appropriate to apply a multiplier of approximately 2.0 to the lodestar request under the circumstances of the case: “The multiplier here is consistent with other multipliers, high risk, especially at the end of a long case where a lot of other parties have settled along the way.”
The trial court here analyzed the appropriate factors and reached a decision that was reasonable under the facts. We conclude the trial court did not abuse its discretion when it awarded attorney fees.
None of the arguments appellants make convince us the trial court erred. First, appellants argue that the court erred when it awarded fees in a lump sum and then left it to class counsel to allocate that fee among themselves. According to appellants, this was error because the court “must separately award a fee, based on a lodestar and multiplier, to each law firm.”
Appellants argument on this point is inconsistent with the many federal cases that have approved the fee distribution procedure used by the trial court. (See, e.g., Longden v. Sunderman (5th Cir. 1992) 979 F.2d 1095, 1101; In re Agent Orange Product Liability Litigation (2nd Cir. 1987) 818 F.2d 216, 223 (Agent Orange); In re Copley Pharmaceutical, Inc. (D. Wyo. 1999) 50 F.Supp.2d 1141, 1148; see also Newberg on Class Actions (4th ed. 2002) Attorneys’ Fees in Class Actions, § 14:9, pp. 604-605.) It is also inconsistent with California case law. In Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1142, the court stated: “‘class counsel need [not] follow, line by line, the lodestar formula in arriving at an agreement as to fee distribution. Obviously, the needs of large class litigation may at times require class counsel, in assessing the relative value of an individual attorney’s contribution, to turn to factors more subjective than a mere hourly fee analysis.’” (Ibid., quoting In re Agent Orange, supra, 818 F.2d at p.223.)
The procedure approved by the trial court is supported by significant practical considerations. As other courts have noted, “Class counsel are better able to decide the weight and merit of each other’s contributions.” (In re Copley Pharmaceutical, Inc., supra, 50 F.Supp.2d at p. 1148.) “In the context of . . . litigation, which has extended over an eight-year period, it is virtually impossible for the Court to determine as accurately as can the attorneys themselves the internal distribution of work, responsibility and risk.” (In re Ampicillin Antitrust Litigation (1978) 81 F.R.D. 395, 400.)
The primary case upon which appellants rely, In re Vitamin Cases (2003) 110 Cal.App.4th 1041 (Vitamins), does not require a different result. The court there said it had “concerns” over the fact that fees would be allocated between counsel in a manner that was different from the pure lodestar method. (Id. at pp. 1055-1056.) However, the court did not disapprove that method of distribution. Indeed, the court in Vitamins recognized that the Rebney court had approved the distribution of fees different from the lodestar method, and it remanded the case to the trial court so it could determine whether a distribution of fees different from the lodestar method was appropriate in that case. (Vitamins,at pp. 1056, 1060.)
Next, appellants argue that given the large number of actions that had been filed and the large number of attorneys who were seeking fees, there was a significant risk that duplicative work was being performed and that fees being sought were excessive. Appellants support their argument with pleadings from other unrelated class actions where the firms seeking fees in this case criticized one another for not doing enough work and for seeking more than their fair share of fees.
Appellants’ argument on this point faces two hurdles. First, appellants frankly concede they lack evidence to demonstrate clearly that excessive time was included in the lodestar. On appeal we are required to resolve that type of ambiguity in favor of the trial court’s ruling. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1140.) Second, and more importantly, the trial court here was well aware of the possibility that duplicate work might be performed and excessive fees might be sought and it expressly found the fees sought here were reasonable. As the court stated, “I think it’s impossible to put together a fee request in a complex case that would not be susceptible to somebody coming along and saying that amount of time is unreasonable, this amount of time is padded, these two people are duplicating services and the like.” “I am not reconstructing all the time put in by each of the lawyers to make sure it is 100 percent accurate, that’s impossible. I’m not second guessing whether there was padding or duplication or that, unless it appears to me that based on my experience, based on what went on in court, based on what the lawyers tell me there’s a reason to believe that such has occurred.”
Next, appellants argue that the lodestar was legally deficient because the trial court did not have detailed information about the hours claimed by each of the attorneys who was seeking fees. While the court did not have timesheets for most of the attorneys who were seeking fees, that is not error. “California case law permits fee awards in the absence of detailed time sheets.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 255; see also Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 64.)
As we have stated, one of the attorneys, Francis Scarpulla, did submit his timesheets to the court for an in camera inspection.
In a related argument, appellants argue the lodestar was deficient because the declarations that counsel submitted in support of their requests for fees were ambiguous in many respects. For example, appellants criticize counsel for including descriptions of work that was performed during earlier phases of the case, for lumping a large number of tasks under one description, and for describing the work they performed in vague terms. Appellants also claim that the time charged for drafting reviewing and editing the settlement is “questionable” because the 2007 settlement agreement was “virtually identical” to the 2003 settlement agreement. We reject these and the other arguments appellants make on this point because appellants fail to take into account the applicable standard of review. The trial court is granted broad discretion to determine what fees are appropriate and we may reverse the court’s decision only where the court abused its discretion. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801-1802.) Further, when making that determination, we must evaluate the record in the light that is most favorable to the lower court’s ruling. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1140.) The record here, viewed in the appropriate light, amply supports the court’s decision.
Appellants complain that without detailed descriptions of the work performed, it was “impossible to determine” if counsel were seeking compensation for their fee related efforts. According to appellants, an award for fee related efforts would have been improper. The issue is waived because appellants failed to raise it in the court below. (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 237.) It is also speculative. To the extent the record is ambiguous, we must resolve those ambiguities in favor of the judgment below. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1140.)
Appellants contend the trial court “should have ordered production of [class counsels’] billing records” to their counsel so he could conduct a thorough review of the time class counsel spent on various tasks. Appellants concede the production of billing records “might well be the exception” but they argue there was adequate justification for production here. We disagree. As we have stated, class counsel provided a detailed explanation of the work they performed and the hours they spent. The trial court thoroughly evaluated class counsels’ request and found it to be reasonable. We conclude the court did not abuse its discretion when it declined to order the production of class counsels’ billing records.
Appellants contend the court did not explain adequately why it decided to grant a multiplier to the lodestar. However, the court did explain why it believed a multiplier was appropriate. This was a long-term high risk case. The court’s explanation, in context, was adequate.
In a related argument, appellants maintain that this was not a high risk case because the state class action cases were “coat tailing on the federal antitrust class action.” While that may be true, that does not diminish the risk involved. The district court in the federal case granted summary judgment to PPG finding the evidence against it to be “weak, at best.” While that decision was reversed in part by a federal appellate court, the district court’s characterization highlighted the fact that victory for the plaintiffs in the state case was by no means certain. The court could reasonably conclude a multiplier was appropriate because this was a high risk case.
Next, appellants complain about the fee order that was signed by the trial court. Specifically, the court noted the factors it had considered when awarding fees were “(1) the time and labor required; (2) preclusion of other employment; (3) the contingent nature of the case; (4) the experience, reputation, and ability of Plaintiffs’ Counsel and the skill they displayed in the litigation; (5) the results achieved; and (6) the apparent unanimous consent of the Plaintiffs and Settlement Class Members.” Appellants contend it would not be appropriate to grant a multiplier based on “preclusion of other employment” because there was no evidence that “any firm lost business because of its commitment to this case.” However, the comment appellants have identified shows the factors the court considered when awarding fees, not when awarding a multiplier. Appellants’ argument is based on a false premise.
Appellants also challenge the last factor cited by the trial court when awarding fees noting that the objections they submitted demonstrated that the settlement did not have the unanimous consent of settlement class members. Appellants are correct, but the court’s error was de minimus. While the settlement was not unanimous, the number of objectors, nine represented by a single counsel, was miniscule compared to the size of the class. Any possible error by the court on this point was harmless. (7-Eleven Owners For Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1162.)
Finally, appellants contend the “record discloses a distinct possibility that the trial court did not independently assess the fee request but only ‘rubber stamped’ it.” Appellants base this argument on several factors such as the court’s misstatement regarding whether the settlement was unanimous, ambiguities that existed in the materials the attorneys submitted when requesting fees, and the fact that the court signed the fee order on the same day as the hearing. The factors appellants have cited do show the motion requesting fees was not perfect and that the court may have made a minor misstatement ruling on the fee request. However, the court’s comments, read as a whole, demonstrate that the court understood the issues and that it issued a fundamentally well-reasoned decision. Viewing the record in the light most favorable to the court’s ruling (Ketchum v. Moses, supra, 24 Cal.4th at p. 1140), we find no error on this ground.
We conclude the court did not abuse its discretion when it awarded fees under the lodestar method.
Having reached this conclusion, we need not decide whether the court also properly awarded fees under the percentage fee method.
C. Validity of the 2003 and 2004 Fee Awards
Appellants contend the 2003 and 2004 fee awards were flawed and must be reversed. We need not reach this argument because appellants failed to challenge those fee awards in the court below. Appellants cannot raise their arguments for the first time on appeal. (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 237.)
Indeed, at the May 2007 hearing, appellants specifically declined to file a motion asking the court to reconsider the 2003 and 2004 fee awards. Instead, they urged the court to reconsider the awards on its own motion. The court declined that request and appellants do not argue the court erred when doing so.
III. DISPOSITION
The order approving the settlement and awarding fees is affirmed.
We concur: Needham, J., Reardon, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.