Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCU217318 Lloyd L. Hicks, Judge.
Law Office of Frederick C. Roesti and Frederick C. Roesti for Plaintiff and Appellant.
Law Offices of Michael J. Lampe and Michael P. Smith for Defendant and Respondent.
OPINION
Kane, J.
In a prior appeal between these same parties, we found that appellant Mary Jane Galbiso prevailed on causes of action against respondent Orosi Public Utility District (OPUD) for alleged violations of the Ralph M. Brown Act (Gov. Code, § 54950 et seq.; hereafter the Brown Act) and the California Public Records Act (Gov. Code, § 6250 et seq.; hereafter the Public Records Act). Consequently, we held the trial court erred in its failure to award any statutory attorney fees to Galbiso and we remanded the matter back to the trial court to determine the following: (i) whether to award attorney fees to Galbiso under the discretionary provision of the Brown Act and, if so, the amount of such award; and (ii) the amount of attorney fees to be awarded to Galbiso under the Public Records Act. On remand, Galbiso missed the deadline for claiming attorney fees incurred on appeal, and her subsequent motion for relief under Code of Civil Procedure section 473 was denied. The trial court therefore denied any recovery of attorney fees relating to the prior appeal. As to the balance of attorney fees requested by Galbiso, the trial court ascertained a reasonable hourly rate (based on local attorney rates) and determined the amount of time that Galbiso’s attorney reasonably spent on the statutory claims (after eliminating some of the asserted time as unnecessary or unrelated to the Brown Act and the Public Records Act causes of action). In multiplying the two numbers, the trial court also applied a modest 1.25 multiplier as an enhancement, yielding a combined attorney fee award of $20,000 for both of the statutory causes of action.
The prior appeal we are referring to is Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063 (Galbiso).
Unless otherwise indicated, further statutory references are to the Code of Civil Procedure.
Galbiso appeals. Through her attorney, she claims entitlement to the remarkable sum of $571,495.60 in attorney fees in this case. She contends the trial court should have used San Francisco attorney fees rates, should have applied a higher multiplier, and should not have trimmed any of the claimed attorney time. Galbiso also contends the trial court erred when it did not allow her to recover the attorney fees incurred in the prior appeal. She challenges other decisions of the trial court as well, including the denial of certain costs. We find that the trial court did not abuse its discretion with respect to the award of attorney fees. Although we direct the trial court to rectify one error in the cost award, in all other respects we affirm the orders of the trial court.
FACTS AND PROCEDURAL HISTORY
The procedural history of this case may be divided into two distinct phases: (A) the initial proceedings culminating in our opinion in the prior appeal; and (B) the events after we remanded the case to the trial court on the issue of attorney fees. We briefly summarize these two phases below.
A. Events Leading To and Including the Prior Appeal
We begin with the events that culminated in the parties’ prior appeal in this case. This part of our summary is derived from our published opinion in that prior appeal—i.e., Galbiso, supra, 167 Cal.App.4th at pages 1069-1075. For further detail, please see that opinion.
We take judicial notice of our opinion in the prior appeal in this case, including our summary therein of the procedural background.
The present action was commenced by Galbiso in Tulare County Superior Court (Galbiso v. Orosi Public Utility Dist. (Super. Ct. Tulare County, 2005, No. 217318) as a complaint against OPUD for declaratory and injunctive relief concerning OPUD’s efforts to proceed with a 2006 tax sale of two parcels of land owned by Galbiso and to address violations of statute that OPUD allegedly committed along the way. The two parcels were located within the district boundaries of OPUD, which is a sewer improvement district. OPUD sought to proceed with the tax sale because Galbiso had failed to pay sewer assessments imposed against her parcels. Galbiso, for her part, believed the assessments were unreasonable and invalid. Of the five causes of action in Galbiso’s complaint, three of them challenged OPUD’s right to conduct the tax sale or the validity of its tax lien. Galbiso also claimed that OPUD was pursuing the tax sale as an improper means of avoiding the jurisdiction of the appellate court over the same dispute embodied in the judicial foreclosure action, which foreclosure action was still pending on appeal at that time. The remaining two causes of action in Galbiso’s complaint sought injunctive relief to prohibit future violations of the Brown Act and the Public Records Act. The alleged violations of the Brown Act included claims that (i) the resolution approving the tax sale was improperly decided beforehand in a private or secret manner, rather than at the open and public meeting; (ii) OPUD failed to allow public comment and/or failed to allow Galbiso to speak at public meetings; and (iii) OPUD failed to make necessary public disclosures relating to a closed meeting. (Galbiso, supra, 167 Cal.App.4th at pp. 1069-1071.) The alleged violation of the Public Records Act was that OPUD denied Galbiso access to public documents that other owners of property within the boundaries of OPUD would be entitled to review. Specifically, Galbiso alleged she was denied access to records by being ordered to leave the premises of OPUD’s office whenever she sought to inspect and copy records. (Galbiso, supra, at p. 1071.)
Galbiso’s appeal of the judicial foreclosure action resulted in our 2007 nonpublished opinion in Orosi Public Utility Dist. v. Galbiso (Nov. 9, 2007, F049450) [nonpub. opn.].
Prior to trial, the parties settled. OPUD agreed that it would not take any action to commence or proceed with a tax sale of Galbiso’s parcels until after the conclusion of the appeal in the foreclosure action, and that it (OPUD) would refrain from specified conduct that Galbiso’s complaint alleged was in violation of the Brown Act and the Public Records Act. In exchange, Galbiso agreed to dismiss her lawsuit with prejudice. As part of the settlement, the parties reserved the issue of statutory attorney fees under the Brown Act and the Public Records Act for subsequent determination by the trial court in a future hearing. (Galbiso, supra, 167 Cal.App.4th at pp. 1072-1074.)
Galbiso filed a motion in December of 2006 to recover her attorney fees, requesting a total award of $140,988.68 in attorney fees. The requested award included a 1.25 multiplier. The trial court denied the motion in its entirety. It reasoned that Galbiso did not prevail on the Brown Act claim and that she was not entitled to an award of fees under the Public Records Act due to the particular requisites of the statutory provision for recovery thereof. (Galbiso, supra, 167 Cal.App.4th at p. 1075.) Galbiso appealed, which we have referred to herein as the prior appeal. On October 28, 2008, we reversed the trial court’s order denying attorney fees under the Brown Act and the California Public Records Act and remanded the case to the trial court. (Galbiso, supra, at pp. 1083, 1089-1090.)
Regarding the Brown Act cause of action, we concluded as follows: “[W]e hold that the trial court erred in its determination that no Brown Act violation was shown. As discussed above, Galbiso established that OPUD violated the Brown Act by (1) failure to provide an opportunity for public comment, and (2) failure to make the required disclosures prior to going into closed session. Since the trial court assumed that no violation occurred, it never properly exercised its discretion whether to grant attorney fees to Galbiso as a prevailing party. We therefore remand the matter to the trial court to consider whether to award attorney fees and costs to Galbiso on her Brown Act claims pursuant to [Government Code] section 54960.5.” (Galbiso, supra, 167 Cal.App.4th at p. 1083.) That section, which gives discretion to award attorney fees to a prevailing plaintiff, states that “[a] court may award court costs and reasonable attorney fees to the plaintiff in an action brought pursuant to Section 54960 or 54960.1 where it is found that a legislative body of the local agency has violated this chapter.” (Gov. Code, § 54960.5, italics added.)
To guide the trial court in its consideration of whether to grant fees under the Brown Act, we explained, based on established case law, that the trial court should consider among other things the necessity for the lawsuit, lack of injury to the public, the likelihood the problem would have been solved by other means, and the likelihood of recurrence of the unlawful act in the absence of the lawsuit. (Galbiso, supra, 167 Cal.App.4th at p. 1083, citing Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 686.) We also noted the following rule from Los Angeles Times Communications v. Los Angeles County Bd. of Supervisors (2003) 112 Cal.App.4th 1313, 1327: “‘[T]he trial court has the discretion to deny successful Brown Act plaintiffs their attorneys fees, but only if the defendant shows that special circumstances exist that would make such an award unjust.’” (Galbiso, supra, at p. 1083.)
Regarding the Public Records Act cause of action, we held that OPUD’s denial of access to all public records constituted a violation of the Public Records Act and that Galbiso was entitled to an award of attorney fees under the statute. (Galbiso, supra, 167 Cal.App.4th at p. 1089.) The statute in question, Government Code section 6259, subdivision (d), provides as follows: “The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.” (Italics added.) We noted that an award of attorney fees pursuant to this provision is mandatory if the plaintiff prevails. (Galbiso, supra, at pp. 1084-1085.) Accordingly, we remanded the matter to the trial court “to determine reasonable attorney fees regarding her Public Records Act claim.” (Id. at p. 1089.)
In summary, in the prior appeal we reversed the trial court’s denial of attorney fees on the Brown Act and Public Records Act claims and remanded the matter back to the trial court for further proceedings consistent with our opinion. (Galbiso, supra, 167 Cal.App.4th at p. 1090.)
B. Events After Remand
On December 26, 2008, the case was returned to the trial court by issuance of the remittitur. On December 31, 2008, the trial court clerk notified the parties of a remittitur hearing to be held on January 22, 2009. At that hearing, the parties and the trial court agreed to (i) a hearing date of March 27, 2009, on the remanded issues of attorney fees and costs, and (ii) a briefing schedule. Under the briefing schedule, Galbiso was required to file her moving papers by February 16, 2009; OPUD was required to file opposition by March 10, 2009; and Galbiso’s reply was due by March 16, 2009.
On February 19, 2009, Galbiso filed paperwork claiming attorney fees and costs. She filed two cost memoranda and a declaration by her attorney, Frederick Roesti, with numerous exhibits attached. This paperwork, submitted as Galbiso’s motion for attorney fees and costs, was filed three days late under the briefing schedule. The exhibits attached to Mr. Roesti’s declaration included a copy of the prior (preappeal) motion for fees and cost bill that were filed in 2006, in which Galbiso had sought $140,988.68 in attorney fees based on a 1.25 multiplier enhancement. The new (postappeal) attorney fees motion continued to seek a 1.25 multiplier and requested a fee rate of $375 per hour for Mr. Roesti’s time. The paperwork did not state the total amount of attorney fees being requested, but a large quantity of billing records were attached to Mr. Roesti’s supporting declaration.
As the parties have done, we have sometimes referred to the memorandum of costs as a cost bill or a cost memorandum. The terms are interchangeable. Here, Galbiso filed two such documents on February 19, 2009, hence our use of the plural.
OPUD’s opposition to the fee motion made several arguments: the rate of $375 per hour was unreasonable; the requested multiplier enhancement was unwarranted and should not be applied; Galbiso failed to apportion the attorney fees to the Brown Act and Public Records Act claims; and the trial court should deny as untimely the claim for attorney fees on appeal. OPUD also separately filed a motion to strike the memorandum of costs on appeal and/or to tax certain costs claimed by Galbiso. OPUD asked the trial court to strike the memorandum of costs because it was not timely filed under California Rules of Court (rule 8.278(c)(1) [cost memo must be served and filed 40 days after notice of issuance of remittitur]; see also rule 3.1702(c)(1) [attorney fees motion must be filed at same time as cost memo is due]). OPUD also sought to tax a number of the cost items claimed by Galbiso because they were allegedly not proper items of costs or were not reasonably or necessarily incurred.
Unless otherwise indicated, further references to rules are to the California Rules of Court.
On February 24, 2009, Mr. Roesti served subpoenas on OPUD’s attorneys in order to obtain records of all attorney and paralegal time spent on the case. Mr. Roesti apparently wanted to use opposing counsel’s time records for comparison purposes in an attempt to show that the hours he (Mr. Roesti) spent on the case were reasonable. OPUD’s attorney, Michael Lampe, objected on the ground that the subpoenas were an improper attempt to obtain discovery after the discovery cut-off.
On March 9, 2009, Galbiso filed an ex parte application to shorten time for notice and to hear the following motions: (i) to advance the compliance date on the subpoenas; (ii) to continue the hearing on the motion for fees and costs, along with the due date of Galbiso’s reply, so that Galbiso would have additional time to obtain the requested documentation and include it in her reply papers; or (iii) to order production of the documents referred to in the subpoenas pursuant to attached “stipulations.” OPUD opposed the three alternative motions and requested that monetary sanctions be imposed against Galbiso or Mr. Roesti for making meritless demands and misusing the discovery process. OPUD argued the relief sought was unwarranted because its purpose was to impermissibly include new matter in a reply brief, it would reward Mr. Roesti for his delays, and the purported stipulation did not exist. Further, OPUD continued to argue that the attempted discovery was improper since the case was beyond the discovery cut-off. At the March 11, 2009, hearing on the application, the trial court denied all relief. The trial court explained that Galbiso provided no legal authority for any of the alternative forms of relief sought, and that the purported stipulation was not a stipulation at all, since it was not signed by OPUD or OPUD’s counsel. The trial court set a further hearing on an order to show cause why monetary sanctions should not be ordered against Mr. Roesti, since he filed on Galbiso’s behalf what amounted to a motion to compel discovery without substantial justification. The sanctions issue was scheduled for hearing on March 27, 2009.
Having failed to obtain a continuance of the hearing or to gain immediate discovery of opposing counsel’s time records, Galbiso took her motion for attorney fees off calendar on March 24, 2009, three days prior to the scheduled hearing. In doing so, Galbiso intended to “re-file” the motion at a later time with a higher multiplier enhancement requested after first completing discovery of OPUD’s billed and unbilled attorney and paralegal time. OPUD opposed Galbiso’s request to take the motion off calendar and objected that any refiling of the motion at a later time would be contrary to the time limit set forth at rules 3.1702(c)(1) and 8.278(c)(1). The trial court acknowledged that it was Galbiso’s “right” to “unilaterally” take the motion for attorney fees off calendar, and it confirmed the matter was effectively removed from the calendar: “So that’s off.”
Galbiso eventually succeeded in obtaining that information by making a request under the Public Records Act.
On March 27, 2009, although the motion for attorney fees was off calendar, the trial court proceeded to address OPUD’s motion to tax or strike costs. The trial court taxed a number of the challenged cost items and also struck the entire memorandum of costs on appeal because it was not timely filed under the rules of court or the parties’ agreed schedule. The trial court then took up the matter of discovery sanctions in connection with Galbiso’s earlier ex parte application and motions. The trial court granted monetary sanctions against Mr. Roesti in the total sum of $1,500—$250 payable to the court and $1,250 payable to OPUD’s law firm.
On May 1, 2009, Galbiso moved for reconsideration of the order striking and taxing costs. Galbiso also sought reconsideration of the order imposing monetary sanctions on Mr. Roesti. At the hearing on June 4, 2009, the trial court denied both motions for reconsideration, explaining there was “absolutely nothing in either of these motions that is new or different, and therefore there is a failure to meet the requirements of section 1008.” OPUD had filed a countermotion for sanctions against Galbiso and/or Mr. Roesti under section 128.7 for filing frivolous motions for reconsideration, since no new facts, circumstances or law were presented. The trial court granted sanctions under section 128.7 in the amount of $1,250 against Galbiso and Mr. Roesti.
On August 5, 2009, Galbiso refiled her motion for attorney fees, in which she requested an increased attorney fees rate of $450 per hour and an increased multiplier of 2.0 or more. After including all of the requested attorney and paralegal time, the total amount of attorney fees claimed by Galbiso was $571,495.60. OPUD filed opposition to the attorney fees motion. OPUD argued that attorney fees on appeal were time-barred, that no multiplier should be applied, and that any fees awarded should be strictly apportioned to the Brown Act and Public Records Act claims. Further, OPUD pointed out that Galbiso’s attempt to compare the amount of time spent by OPUD’s attorneys was not helpful because it unfairly attributed all of the time spent by OPUD’s attorneys to the present litigation, when in fact there have been four separate cases between these same litigants.
The hearing of the attorney fees motion was held on August 27, 2009. After the conclusion of oral argument, the trial court took the matter under submission. On September 30, 2009, the trial court issued a written “Ruling on Attorney’s Fees.” In its ruling, the trial court found that a reasonable attorney rate for the services performed by Mr. Roesti was $250 per hour, based on local attorney rates, and that only a modest multiplier enhancement of 1.25 was appropriate under all of the circumstances. After determining the reasonable time spent on the statutory claims, the trial court awarded $3,000 in attorney fees on the Public Records Act claim and $17,000 on the Brown Act claim, for a total award of $20,000. The trial court did not allow time for the post-March 27, 2009 claims, because “[Galbiso] took the fee motion, already briefed and ready, off calendar.” Finally, the ruling stated that “this award does not include time spent on the appeal … because [Galbiso] did not file a timely memo of costs, and attendant fee motion.” The ruling was followed by a formal written order awarding attorney fees of $20,000. Notice of entry of the trial court’s order awarding attorney fees was filed on October 22, 2009.
On November 3, 2009, Galbiso filed a motion for relief from the denial of attorney fees on appeal under section 473. The motion was argued on December 10, 2009, and the matter was taken under submission. On December 15, 2009, the trial court denied the motion. In its written order, the trial court found that it was inexcusable to wait until August 5, 2009, to file a motion for appellate attorney fees that should have been filed in February 2009 under the rules of court and the agreed briefing schedule. Indeed, the initial motion for attorney fees, filed several days past the deadline, was taken off calendar by Galbiso even after being warned of the time requirements under the rules of court. Further, the trial court found a lack of diligence in seeking relief under section 473 and prejudice to OPUD.
On December 18, 2009, Galbiso filed her notice of appeal. She appeals from the order granting $20,000 in attorney fees, the subsequent denial of her section 473 motion, and other subsidiary orders.
DISCUSSION
I. Standard of Review
A trial court’s exercise of discretion concerning an award of attorney fees will not be reversed unless there is a manifest abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “Where, as here, a trial court has discretionary power to decide an issue, its decision will be reversed only if there has been a prejudicial abuse of discretion. ‘“To be entitled to relief on appeal … it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice.…”’ [Citation.]” (Baggett v. Gates (1982) 32 Cal.3d 128, 142-143.) The experienced trial judge is the best judge of the value of professional services rendered in his court, and his judgment will not be disturbed unless the appellate court is convinced that it is clearly wrong. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum); Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Thus, with respect to the amount of fees awarded, our review must be highly deferential to the views of the trial court. (Children's Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 777.)
Under the abuse of discretion standard, “we employ the equivalent of the substantial evidence test by accepting the trial court’s resolution of credibility and conflicting substantial evidence, and its choice of possible reasonable inferences.” (In reExecutive Life Ins. Co. (1995) 32 Cal.App.4th 344, 358.) “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, italics added.)
At the same time, the trial court’s discretion must not be exercised whimsically or arbitrarily, and reversal is appropriate where there is no reasonable basis for the ruling or the trial court has applied the wrong test or legal standard in reaching its result. (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 634; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239 (Nichols).) “‘The scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action.…” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393 (Horsford), citing City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) Thus, in attorney fees determinations such as this one, the exercise of the trial court’s discretion “must be based on a proper utilization of the lodestar adjustment method, both to determine the lodestar figure and to analyze the factors that might justify application of a multiplier.” (Flannery v. California Highway Patrol, supra, at p. 647.)
II. The Motion for Attorney Fees
A. Calculation of Lodestar Amount
“[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.” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) After the starting point of the lodestar is determined, the trial court may adjust the amount based on consideration of factors specific to the case. (Ibid.) At this stage of our discussion, we consider only the first step: the trial court’s determination of the lodestar.
In determining the amount of time reasonably spent on the successful claims, the trial court carefully reviews attorney documentation of hours expended and may deduct any hours that are unnecessary or duplicative. (Horsford, supra, 132 Cal.App.4th at p. 395.) “‘[P]adding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Ketchum, supra, 24 Cal.4th at p. 1132.) The burden of documenting reasonable hours expended lies with the moving party. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320). “The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. [Citation.]” (Ibid.) The trial court has discretion to reduce inflated claims of attorney time, and it may reasonably conclude that fee requests are inflated or unsubstantiated when, for example, the billing records or time entries are illegible, unintelligible, vague or not credible. (Id. at pp. 1320-1326.)
Furthermore, a prevailing party is generally not entitled to an award of attorney fees for time spent by his or her attorney on causes of action that were unsuccessful (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 342), or on causes of action for which attorney fees were not recoverable pursuant to statute or contract (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 157-158). In such cases, an apportionment of attorney time between the compensable and noncompensable claims is appropriate. (Ibid.; Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.) However, apportionment is not required concerning issues common to all of the causes of action (see Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130), or where the causes of action are so inextricably intertwined that it would be impracticable to separate the attorney’s time into compensable and noncompensable units (Bell v. Vista Unified School Dist., supra, at p. 687).
1) Trial Court’s Determination of Reasonable Attorney Time
With these principles in mind, we consider the trial court’s determination of reasonable attorney time expended by Mr. Roesti. The trial court first undertook to ascertain attorney time that was attributable to the Brown Act and the Public Records Act claims on which Galbiso prevailed. According to the trial court, apportionment of attorney fees was appropriate because there were a total of five causes of action in Galbiso’s complaint that were litigated, and she prevailed on only two. Of the five causes of action, the fourth and fifth had nothing to do with the Brown Act or the Public Records Act, while the first primarily addressed Brown Act claims that were found on appeal to be without merit. Further, the purposes of the first, fourth and fifth causes of action were to challenge the validity of OPUD’s pending tax sale of Galbiso’s parcels, which purposes ultimately failed. As observed by the trial court: “The vast majority of [Galbiso’s] time was spent on spurious claims not found by the Court of Appeal to be violations, so there must be an allocation, based on a determination by this court of what constitutes a reasonable time required to present successful claims.” That basic assessment has not been shown by Galbiso to be erroneous or unreasonable. Moreover, it is clear from the allegations of the complaint that Galbiso prevailed on distinct statutory claims that were not inextricably intertwined with the remaining causes of action. We conclude the trial court’s decision to apportion attorney fees to the successful Brown Act and Public Records Act claims was a reasonable exercise of its discretion. (Mann v. Quality Old Time Service, Inc., supra, 139 Cal.App.4th at p. 342 [prevailing party generally not entitled to fees on unsuccessful claims; apportionment or a reduction to reflect lack of success is within court’s discretion]; Bell v. Vista Unified School Dist., supra, 82 Cal.App.4th at pp. 687-689 [failure to apportion fees between Brown Act claims and other noncompensable causes of action was an abuse of discretion].)
The difficulty was in accurately identifying attorney time spent on the successful Brown Act and Public Records Act claims. The trial court noted that it had carefully reviewed all of the billing statements and time sheets submitted by Mr. Roesti, but for the most part such records were vague, unintelligible or lacked adequate information for purposes of allocation. We have reviewed the same records and concur in the trial court’s assessment. Although Mr. Roesti attempted to retrospectively allocate time to the Brown Act and Public Records Act issues long after the entries were originally recorded, the trial court found that such “purported allocations” lacked credibility or were unreliable because there was no contemporaneous itemization in the original records “in areas where allocation [was] necessary.” That inference was a reasonable one to draw under the circumstances, and therefore we defer to the trial court’s finding on the weight and credibility of this evidence regarding allocation of attorney time. (See Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at pp. 1320-1326 [the trial court may reasonably conclude that fee requests are inflated or unsubstantiated when, for example, the billing records or time entries are illegible, unintelligible, vague or not credible]; Shamblin v. Brattain, supra, 44 Cal.3d at pp. 478-479 [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].)
The records included daily time sheets that contained handwritten entries and notations of attorney time. The handwritten entries and notations are unintelligible or very difficult to decipher. These daily time sheets apparently became the basis for typed summaries. The typed summaries, while legible, were generally lacking in adequate information to make an apportionment to the successful claims.
At the hearing of the motion for attorney fees on August 27, 2009, Mr. Roesti admitted that his allocation of fees was not prepared until after “it became an issue, ” at which time he “went back” and attempted an apportionment. His effort at apportionment is handwritten in the margins of the typed summaries of attorney time, which are referenced in Mr. Roesti’s declaration.
The trial court also noted that some of the “purported allocations” were not “reality based, ” because they referred to hours spent after the issues “were over.” For example, the Public Records Act issues alleged in the complaint were essentially over when the February 21, 2006, temporary restraining order was issued, yet Mr. Roesti’s allocations indicated that many hours were spent on the Public Records Act thereafter.
The trial court, which was intimately acquainted with the case, then sifted through the billing records and ascertained which items related to the successful Brown Act and Public Records Act causes of action. No specific challenge is made in this appeal to the trial court’s particular apportionment or allocation of attorney time to the two successful statutory claims, other than Galbiso’s argument that there should not have been any apportionment at all. In the course of apportioning the attorney time, the trial court also relied on its own knowledge and experience to reduce hours that appeared to be duplicative or inefficient. (See Ketchum, supra, 24 Cal.4th at p. 1132 [inefficient or duplicative efforts are not subject to compensation].) By this means, the trial court concluded there were 58.65 hours of attorney time reasonably spent on the successful Brown Act claim (plus 20.6 hours of paralegal time); and 6.35 hours of attorney time on the Public Records Act claim (plus 3.4 hours of paralegal time).
Galbiso’s argument was that no apportionment should have been made because all of the causes of action were inextricably intertwined. We have rejected that argument. Beyond that, we do not discern any specific or cogent argument that the trial court erred in its particular allocation of time. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [matters set forth in perfunctory manner, without adequate legal argument, are disregarded].)
We note that two significant swaths of Mr. Roesti’s time were disallowed. First, the trial court did not allow attorney fees for time spent on the prior appeal. The issue of attorney fees on appeal will be addressed in a subsequent part of this opinion. Second, the trial court did not award attorney fees for work done after March 27, 2009, except for three hours allowed for argument of the motion on August 27, 2009, because the attorney fees motion was in a position to be heard on March 27, 2009. That is, because Mr. Roesti, on Galbiso’s behalf, “took the fee motion, already briefed and ready, off calendar” and used the time gained by this maneuver “to file two plus additional court files full of irrelevant and redundant paper” in her second attorney fees motion, the trial court excluded the additional attorney time spent as unnecessary and unreasonable. The trial court refused to reward such wasteful tactics.
The trial court’s characterization of the post-March 27, 2009, attorney time as unnecessary and wasteful was reasonably supported by the record. In addition to the fact that the attorney fees motion was briefed and ready to be heard on March 27, 2009, and that no continuance had been authorized when Galbiso unilaterally took the motion off calendar, we note the following. After March 27, 2009, Galbiso eventually obtained billing records of OPUD’s attorneys through a public records request, and then spent (as the trial court found) “an extraordinary number of hours reviewing [them] and preparing charts to demonstrate time spent on this case” by opposing counsel. However, the retrieved bills showed time spent on all of the Galbiso cases and appeals, without any differentiation. As the trial court correctly concluded, one would have to speculate to attribute particular hours spent to this case, “let alone the compensable parts of this case”; therefore, the new matter was of no help or value in determining the attorney fees issue. Further, as noted by the trial court, the declaration of “‘fee counsel’” David Hicks, submitted in connection with the refiled motion for attorney fees, consisted mainly of conclusions about fee rates for San Francisco attorneys (and other major metropolitan areas) and was therefore of no relevance to this case, since there was no basis to depart from using local fee rates. The remainder of the refiled motion was “mainly [a] re-filing and re-hashing” of the same exhibits and attachments, and therefore added nothing of substance to the original motion. We find the trial court’s assessment of these matters to be reasonable under the circumstances. The attorney fees motion was briefed and ready to proceed on March 27, 2009, and considering the nature and result of the attorney effort thereafter, it was well within the bounds of reason for the trial court to conclude that such post-March 27, 2009, attorney time was duplicative, unnecessary and wasteful. A party who decides to take a prepared attorney fees motion off calendar, in the uncertain hope that spending yet more attorney time to prepare a second motion will have profitable results, risks such a result. No abuse of discretion has been shown.
The trial court added the following apt comment: “Furthermore, [Mr. Roesti’s] style of practice—filing voluminous, repetitive documents, with very little on point and filing numerous improper motions to reconsider, require an expenditure of attorney time to defend. Thus, even if it could be ascertained how much time [OPUD’s] attorneys spent on this case, that would not be a measure of reasonable time for [Mr. Roesti].”
In her appeal, Galbiso contends the trial court “totally disregarded the verified time sheet entries” of Mr. Roesti, contrary to the principles we articulated in Horsford, supra, 132 Cal.App.4th at pp. 396-397. We disagree. In Horsford, we found the trial court abused its discretion “in failing to use counsels’ time records as the starting point for its lodestar figure.” (Id. at p. 397.) The trial court in that case had, without adequate justification, rejected wholesale all of the time records, and did not use them in computing the lodestar. Here, unlike the situation in Horsford, the trial court did use Mr. Roesti’s time records as the starting point, and such time records were carefully and thoroughly considered by the trial court. Of course, the analysis did not end there. The trial court specifically refused to compensate attorney hours that were found to be an inefficient or duplicative use of time—a practice that we noted with approval in Horsford. (Id. at p. 395.) It also apportioned attorney time to the two successful claims. But there is simply no merit in the contention that the trial court did not work from and use the time records of Mr. Roesti as the court’s starting point for ascertaining the reasonable attorney hours spent on the successful Brown Act and Public Records Act claims.
Finally, Galbiso contends that she was entitled to all time “documented” because she claimed it in her moving papers and OPUD did not specifically object to or dispute the individual hours spent by Galbiso’s attorneys or paralegals. While it is true that generalized claims that attorney fees are excessive are not sufficient to rebut an attorney’s well-documented and verified fee claim (see Avikian v. WTC Financial Corp. (2002) 98 Cal.App.4th 1108, 1119), that was not the case here. OPUD’s opposition brief in the trial court made it clear that OPUD “cannot make sense out of Mr. Roesti’s billings, ” and OPUD objected to all of Galbiso’s supporting exhibits. The trial court recognized that meaningful objections had been made to Galbiso’s claimed attorney time. We defer to the trial court’s finding, which seems particularly appropriate in view of the nature of Mr. Roesti’s time sheet entries (i.e., vague and/or unintelligible as found by the trial court) and the fact that it was Galbiso’s burden as the moving party to submit adequate time records. (See Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1320.)
In conclusion, we hold that Galbiso has failed to demonstrate that the trial court abused its discretion in determining the reasonable number of attorney hours spent on the successful statutory claims.
This conclusion does not include the issue of attorney fees on appeal, which we will address separately below.
2) Trial Court’s Determination of Reasonable Hourly Rate
The second part of the lodestar calculation was to determine the attorney’s reasonable hourly rate. Galbiso claimed in her refiled motion for attorney fees that she was entitled to fees at the hourly sum of $450 per hour, which was the San Francisco rate. The trial court concluded that this case was not highly complex or difficult and that local attorneys could have competently handled the matter. It was not persuaded that Galbiso had to hire an out-of-town attorney. After considering various factors, the trial court concluded that a reasonable attorney rate was $250 per hour. Galbiso contends the trial court abused its discretion in not awarding fees at the rate Mr. Roesti is able to customarily charge in San Francisco. We disagree.
The general rule is that the lodestar is calculated based on the reasonable rate for comparable legal services in the local community for noncontingent litigation of the same type. (Ketchum, supra, 24 Cal.4th at pp. 1132-1133.) However, higher out-of-town attorney rates may be considered by the trial court if a sufficient showing has been made. (Nichols, supra, 155 Cal.App.4th at pp. 1243-1244; Horsford, supra, 132 Cal.App.4th at pp. 398-399.) Specifically, if the prevailing party shows a good faith effort to find local counsel and demonstrates that hiring local counsel was impracticable, a trial court should consider the out-of-town counsel’s higher rates, either in (1) calculating the initial lodestar figure or (2) evaluating whether to award a multiplier to a lodestar initially calculated using local hourly rates. (Nichols, supra, at p. 1243.) In Horsford, the plaintiff submitted a declaration showing extensive efforts to find local counsel that were wholly unsuccessful. Other declarations revealed that many local firms did not want to go against the defendant, a local university, due to the popularity of the university and its athletic teams. We found this was sufficient to demonstrate the need to hire out-of-town counsel. (Horsford, supra, at pp. 398-399.) In Nichols, although the plaintiff had concerns that she would be unable to find adequate representation, no effort was made to retain local counsel. We found this was insufficient to justify use of the out-of-town rates. (Nichols, supra, at p. 1244.)
Here, the facts are somewhere in between those two extremes. Galbiso’s declaration stated that when, in a prior action (Super. Ct. Tulare County, 2003, No. 207142), OPUD sued to judicially foreclose on her two agricultural parcels for alleged nonpayment of 88 sewer assessments, she contacted an attorney she knew in San Francisco, i.e., Mr. Roesti. Mr. Roesti recommended that she find local counsel, due to the distance from San Francisco to the Orosi area. Galbiso called a staff attorney with the California Public Utilities Commission, who gave her the names of several attorneys. Galbiso called them, but none were interested. She then spoke to the director of the California Rural Legal Association, but that organization could not assist her unless she filed a class action. She also called more than one attorney in Visalia, which included a “Mr. Doyle, ” but the persons she talked to were not interested in taking her case. She then hired Mr. Roesti to represent her in the judicial foreclosure action.
That judicial foreclosure action was filed in 2003, involved issues of statutory interpretation regarding municipal improvement statutes, and resulted in our nonpublished opinion in Orosi Public Utility Dist. v. Galbiso, supra (ante, fn. 4).
The trial court found that Galbiso failed to demonstrate there were no local attorneys competent and available to handle the case. “[Galbiso] may have chosen to go to San Francisco, and may have contacted a few local attorneys who declined to take her case on the terms she offered, but that does not mandate the use of San Francisco rates when there are competent local attorneys.” Although arguably a close call, we affirm the trial court’s decision. Galbiso’s declaration is lacking in any specifics in regard to her alleged contact with practicing attorneys in the area who would have been competent to handle the case. Additionally, one may infer from the generality of her declaration and the apparently minimal steps reflected therein that only a perfunctory effort was made, rather than a bona fide search. Since such issues of weight and credibility were no doubt at play in the trial court’s decision, and the inferences drawn by the trial court were reasonable ones, we do not second guess the decision of the trial court. As was stated in Shamblin v. Brattain, supra, 44 Cal.3d at page 479: “The trial court, with declarations and supporting affidavits, [is] able to assess credibility and resolve any conflicts in the evidence. Its findings … are entitled to great weight. Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court’s ruling is based on oral testimony or declarations.” (Fn. omitted.) Moreover, “[w]hen 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.” (Id. at pp. 478-479.) Applying these principles here, we conclude that no abuse of discretion has been shown and we affirm the trial court’s decision regarding use of local attorney rates.
In the trial judge’s own knowledge and experience, there was not a shortage of “good attorneys in the local area perfectly capable of competently handling this type of case, and who charge $200 to $250 per hour.”
B. The 1.25 Multiplier Enhancement
In the motion for attorney fees that Galbiso filed in February of 2009, she requested that the lodestar figure (i.e., reasonable hours times reasonable attorney rate) be enhanced by applying a multiplier of 1.25. She had requested that same multiplier in this case at the time of the prior appeal. (Galbiso, supra, 167 Cal.App.4th at p. 1089.) When her attorney fees motion was refiled in August of 2009, Galbiso demanded a multiplier of 2.0 to 2.34. The trial court considered a number of factors and granted a multiplier enhancement of 1.25. Galbiso now contends that a 1.25 multiplier was too low and the trial court failed to adequately consider certain factors. We disagree.
The lodestar is the basic fee for comparable legal services in the community. (Ketchum, supra, 24 Cal.4th at p. 1132.) The trial court may adjust the lodestar figure in light of a number of relevant factors that weigh in favor of augmentation or diminution. (Serrano v. Priest, supra, 20 Cal.3d at p. 49; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171.) As summarized in Ketchum at page 1132: “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors, including … (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. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action.” (Italics added.) The question of whether to apply a multiplier rests in the sound discretion of the trial court. (Nichols, supra, 155 Cal.App.4th at pp. 1240-1241). Trial judges are entrusted with this discretionary determination because they are in the best position to assess the value of the professional services rendered in their courts. (Ketchum, supra, at p. 1132; PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at pp. 1095-1096.) That determination will not be disturbed unless the appellate court is convinced that it is clearly wrong. (Ketchum, supra, at p. 1132.)
The trial court’s written order expressly considered factors such as the difficulty or complexity of the case, the degree of skill actually employed, and the result obtained. The trial court gave reasons for its evaluation of these factors, based on its familiarity with the litigation, the manner of Mr. Roesti’s representation, and the outcome of the case. The trial court acknowledged that it “here considers [the] importance of the right vindicated; the quality of the work; the result obtained; the preclusion of other employment; and the contingency nature of the employment.” As to the contingent nature of the employment, the trial court noted that Galbiso asserted the case was taken on a “mixed basis—part hourly rate and part contingent, ” but failed to meaningfully disclose the hourly rate and the nature of the contingent arrangement. The trial court believed it had inadequate information before it to determine the extent to which the contingent nature of the case should be factored into the multiplier enhancement. Ultimately, the trial court concluded that a 1.25 multiplier should be applied to enhance the lodestar because of two outstanding factors: (i) Galbiso’s success on the issues in the prior appeal, and (ii) “[T]he difficulty inherent in dealing with a high conflict client and local political situation.”
In challenging the multiplier as too low, Galbiso argues that the trial court did not adequately consider the “‘result’” factor. The trial court’s order expressly referenced the successful outcome of the matters raised in the prior appeal as an important factor in granting the multiplier. Additionally, although the trial court considered the success on the Brown Act issues to have been more routine, it recognized that the success on the Public Records Act issue was “significant” to the public because it was an issue of first impression. We conclude the trial court did not fail to consider or appreciate the result factor.
Next, Galbiso argues the trial court failed to consider the “‘preclusion from other employment’” factor. The trial court’s ruling acknowledged that “the preclusion of other employment” was one of the factors that it was considering. There is no reason to conclude the trial court failed to actually consider it, even though no express finding was stated on that issue. There is no requirement that all of the factors that may be considered must be explicitly discussed and analyzed in the trial court’s written order. (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 901; Kern River Public Access Com. v. City of Bakersfield (1985) 170 Cal.App.3d 1205, 1228.) A judgment or order of the lower court is presumed correct, all intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The only evidence referred to by Galbiso on the preclusion factor were broad statements in Mr. Roesti’s declaration indicating cumulative hours spent on all of the Galbiso cases over many years. That same declaration stated that Mr. Roesti spent over 500 cumulative hours on the present case, which was commenced in 2005. On that record, the trial court could have reasonably concluded that Galbiso had failed to adequately demonstrate that Mr. Roesti was precluded from other significant employment during the relevant time period. Presumably, that is what the trial court implicitly decided. No error or abuse of discretion has been affirmatively shown.
Galbiso also argues that the “‘contingency risk’” factor was ignored. Galbiso is again mistaken. Mr. Roesti stated in his declaration in support of the attorney fees motion that he worked partly on a discounted fee basis and partly on a contingency fee basis. However, no further detail was provided, such as disclosure of the hourly rate, the nature of the contingent arrangement and the portion of the case that was taken on a contingency basis. Accordingly, the trial court held it had inadequate information to determine the extent to which the contingent nature of the case should be factored into the enhancement. We agree that the information before the trial court on the contingency factor was too vague, sketchy and incomplete to allow the trial court make a meaningful appraisal of its significance with regard to a potential multiplier. Since the record was not clear as to what Mr. Roesti’s arrangement was with Galbiso, or what portion of the case was taken on a contingency, no error or abuse of discretion has been shown.
In conclusion, Galbiso has failed to demonstrate that the trial court’s application of a 1.25 multiplier enhancement was unreasonable or that it constituted an abuse of discretion.
III. Attorney Fees Incurred in the Prior Appeal
Under rule 3.1702(c)(1), a party claiming attorney fees incurred on appeal is required to file a motion claiming such fees “within the time for serving and filing the memorandum of costs under rule 8.278(c)(1).…” The time for serving and filing the memorandum of costs is “[w]ithin 40 days after the clerk sends notice of issuance of the remittitur.” (Rule 8.278(c)(1).) The parties may stipulate to extend the time for filing the motion for attorney fees up to an additional 60 days, and the trial court for good cause may extend the time to file the motion for a longer period. (Rule 3.1702(c)(2) & (d).)
The procedural requirements for obtaining statutory fees are not jurisdictional, but they are mandatory. (Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197-1198 (Lee); Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1725-1726 (Russell).) Although a trial court does not have discretion to disregard noncompliance, a party’s failure to comply with the statutory time limits under the rules of court can be relieved by the court’s exercise of its broad discretion pursuant to section 473. (Lee, supra, at p. 1198; Russell, supra, at pp. 1725-1726.)
In this case, the notice of issuance of remittitur was sent on December 26, 2008, and thus the 40-day deadline under rule 3.1702(c)(1) for filing the motion claiming attorney fees on appeal would ordinarily have expired on February 4, 2009. However, a hearing after remittitur was noticed by the trial court for January 22, 2009, and at that time the parties and the trial court agreed to a March 27, 2009, hearing date on the remanded issues of attorney fees and set a briefing schedule. Under the briefing schedule, Galbiso was required to file her motion for attorney fees by February 16, 2009. Although the briefing schedule did not refer to the time limits contained in the rules of court, presumably its effect was to extend the deadline for filing the motion until February 16, 2009.
On February 19, 2009, Galbiso filed her motion claiming attorney fees and costs. Thus, her motion was filed three days past the date set by the briefing schedule and, for purposes of claiming attorney fees on appeal, beyond the time deadline under the rules of court. In OPUD’s opposition to Galbiso’s request to take the motion off calendar, OPUD specifically raised the issue of the untimely filing of the motion for attorney fees on appeal under the rules of court. As noted, Galbiso unilaterally took her motion for attorney fees off calendar and did not refile it until August 5, 2009. In the trial court’s September 30, 2009, ruling, it explained that Galbiso was not entitled to attorney fees on appeal because of her failure to timely file a motion claiming such fees.
On November 3, 2009, Galbiso filed her motion for relief under section 473 from the denial of attorney fees incurred on appeal. On December 15, 2009, the trial court denied the motion, finding that it was inexcusable to wait until August 5, 2009 to file (or refile) a motion for appellate fees that should have been filed in February under the rules of court and the agreed briefing schedule. Further, the trial court noted that the initial motion for attorney fees, filed several days past the deadline, was taken off calendar by Galbiso even after being warned by OPUD of the time requirements under the rules of court. The trial court found the explanations offered by Mr. Roesti were not credible and did not constitute reasonably excusable conduct. Further, the trial court found a lack of diligence in seeking relief under section 473 and prejudice to OPUD.
Galbiso challenges the trial court’s denial of attorney fees on appeal. First, she contends it was legal error to apply the rules of court because the briefing schedule “over-rode any other time line for hearing the fee motion and filing papers” as a matter of law. In one sense, Galbiso is correct. That is, to the extent the briefing schedule allowed a later time for filing the attorney fees motion, it did override the prior date in the sense of extending it. But, Galbiso would have us conclude that the mere existence of the briefing schedule rendered the time provisions of the rules of court entirely inapplicable. We disagree. The pertinent rules of court expressly provide for extensions of time limits by stipulation or order of the trial court, but do not provide for elimination of such time limits. (Rule 3.1702(c)(2) & (d).)
Second, Galbiso invites us to review her papers in the underlying section 473 motion. Unfortunately, Galbiso fails to articulate in her opening brief any specific reason why the trial court’s denial of that motion was incorrect. We are entitled to disregard such an inadequate or perfunctory argument. (Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at pp. 699-700.) In any event, even if we independently consider Mr. Roesti’s declaration in support of the section 473 motion, it does not provide a sufficient basis for concluding that the trial court abused its discretion. In his declaration, Mr. Roesti stated that he believed the 40-day period under the rules of court did not apply because the trial court and parties agreed to a specific hearing date on the attorney fees motion and a briefing schedule. Although the motion was filed on February 19, 2009—three days past the briefing schedule date—Mr. Roesti thought it would still be timely because it was in compliance with the statutory notice provisions of section 1005. Mr. Roesti also asserted that in a previous postappeal motion for attorney fees involving the same parties, the trial court extended greater leniency with respect to the time limitations for filing a motion for fees and costs. Finally, he claimed in his declaration that he neglected to calendar any dates, other than the March 27, 2009 hearing—which claim the trial court found was not credible. As to all of these proffered explanations, the trial court concluded there was no showing of excusable neglect. Furthermore, the trial court found that Galbiso unreasonably delayed in seeking relief. For these reasons, the motion was denied.
A motion seeking relief under section 473 lies within the sound discretion of the trial court, and the trial court’s decision will not be overturned absent an abuse of discretion. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Section 473 is often applied liberally if the party moves promptly in seeking relief. (Ibid.) Additionally, because the law favors trial on the merits, doubts are to be resolved in favor of the party seeking relief. As a result, a trial court order denying relief is more closely scrutinized on appeal than an order permitting trial on the merits. (Ibid.)
Here, although Galbiso’s showing in the trial court was arguably sufficient to permit relief if she had been diligent, we agree with the trial court that she unreasonably delayed. The statute provides that the application for relief must be made “within a reasonable time.” (§ 473, subd. (b).) It was or should have been clearly apparent that the time provisions of the rules of court were applicable because at the March 27, 2009, hearing, the trial court struck the cost memorandum as untimely filed based on those provisions. Additionally, at that time OPUD served written objections to Galbiso’s request to take the attorney fees motion off calendar, raising the specific time provisions of rules 3.1702 and 8.278, and thereby plainly alerting Galbiso to the existence of said time provisions for filing a motion claiming attorney fees on appeal. (Lee, supra, 88 Cal.App.4th at p. 1200 [in deciding whether motion is filed within a reasonable time, court may consider when party first knew of the default].) Rather than promptly seeking relief pursuant to section 473, Galbiso unilaterally took the attorney fees motion off calendar, eventually filing a second attorney fees motion in August of 2009. It was not until November 9, 2009, that she finally sought relief under section 473. By then, as the trial court correctly pointed out, OPUD had to go through the additional burden of further unnecessary litigation, particularly the considerable time and expense of scrutinizing the arguments, declarations and stack of exhibits presented in the reconstituted second motion for attorney fees. We conclude that Galbiso has failed to meet her burden of establishing that the trial court abused its discretion in denying relief under section 473.
The trial court stated that it did not have an opportunity at the March 27, 2009, hearing, to rule that the motion for appellate fees was untimely because Galbiso had taken it off calendar. As a result, the denial of such fees was expressly announced in the trial court’s September 30, 2009, ruling on the attorney fees motion.
For the same reasons, Galbiso’s memorandum of costs on appeal was untimely filed. As with the attorney fees motion, it was filed on February 19, 2009, and was subject to the same filing deadline of 40 days from notice of the remittitur. (Rule 8.278(c)(1).)
IV. Discovery and Section 128.7 Sanctions
On March 9, 2009, Galbiso filed an ex parte application to shorten time for notice and to hear the following motions: (i) to advance the compliance date on the subpoenas; (ii) to continue the hearing on the motion for fees and costs, along with the due date of Galbiso’s reply, so that Galbiso would have additional time to obtain the requested documentation and include it in her reply papers; or (iii) to order production of the documents referred to in the subpoenas pursuant to attached “stipulations.” OPUD opposed the three alternative motions and requested that monetary sanctions be imposed against Galbiso or Mr. Roesti for misusing the discovery process. At the March 11, 2009, hearing on the application and motions, the trial court denied all relief. The trial court explained that Galbiso provided no legal authority for any of the alternative forms of relief sought (including advancing the production date on the subpoenas), and that the purported stipulation was not a stipulation at all, since it was not signed by OPUD or OPUD’s counsel. The trial court set a further hearing on an order to show cause (OSC) why monetary sanctions should not be ordered against Mr. Roesti, since he filed on Galbiso’s behalf what amounted to a motion to compel discovery without substantial justification. At the OSC hearing on March 27, 2009, the trial court granted monetary sanctions against Mr. Roesti in the total sum of $1,500—$250 payable to the court and $1,250 payable to OPUD’s law firm.
Galbiso contends that it was an abuse of discretion to award those discovery sanctions. No analysis is provided. We conclude the trial court was within its discretion in awarding the sanctions. Making a motion to compel without substantial justification is grounds for monetary sanctions as a misuse of the discovery process. (See §§ 2023.010, subd. (h), 1987.2.) Among other things, Mr. Roesti sought to have the trial court advance the production dates on previously served subpoenas without any citation to legal authority for doing so. It also appeared from his moving papers that he sought to compel discovery of documents pursuant to a nonexistent stipulation. Under the circumstances, the trial court’s conclusion that the motions to compel were made without substantial justification was a reasonable one. Galbiso has failed to demonstrate an abuse of discretion with respect to the order granting discovery sanctions.
Thereafter, Galbiso filed a motion for reconsideration of the trial court’s order imposing discovery sanctions and of an order striking costs. OPUD responded by filing a motion for sanctions pursuant to section 128.7, because Galbiso’s motion for reconsideration was devoid of any “‘new or different facts, circumstances, or law’” as required by section 1008. Galbiso did not withdraw the motion for reconsideration within the safe harbor period of section 128.7. The trial court agreed that no new facts, circumstances or law were presented and it granted the sanctions request. Section 1008 expressly provides that section 128.7 sanctions are available for a violation of the requirements of section 1008. (§ 1008, subd., (d).) Galbiso contends the trial court abused its discretion, but no analysis or citation to the record is provided. We disregard and treat as waived her perfunctory assertion of error. (Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at pp. 699-700; People v. Stanley (1995) 10 Cal.4th 764, 793.) Galbiso has failed to demonstrate an abuse of discretion regarding the section 128.7 sanctions.
V. Order Taxing Costs
The trial court disallowed certain costs to Galbiso. She claims the trial court erred in denying her claim of $3,004.20 in costs for transcripts of audio recordings of OPUD Board of Directors meetings that occurred in November of 2005 and January of 2006. The transcripts were used to prepare for trial and settlement discussions on the eve of trial, supported Galbiso’s attorney fees motion, and were referred to by us in our opinion in the prior appeal. We note the claimed cost item is neither expressly allowed nor disallowed by section 1033.5. Such items may be recoverable in the discretion of the court (§ 1033.5, subd. (c)(4)), but only to the extent reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation (id., subd. (c)(2)). Whether a cost item was “reasonably necessary” to the litigation presents a question of fact for the trial court and is reviewed for abuse of discretion. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) An exhibit that was prepared for use at trial may be recoverable as a cost item even if the matter settles or is dismissed on the eve of trial. (Applegate v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361, 364.)
We agree with Galbiso that this cost item should not have been denied by the trial court. Our review of the Brown Act claims would not have been feasible without legible and accurate written transcripts of the proceedings before the OPUD Board of Directors. By the same token, the transcripts would have been reasonably necessary for the trial court’s initial consideration of whether to award attorney fees, which in light of the parties’ settlement was the only trial of such issues. Under the circumstances, we see no reasonable basis for disallowing this cost item that was reasonably necessary to the litigation. We conclude the trial court abused its discretion in denying Galbiso’s claim of $3,004.20 for costs of transcripts of audio recordings.
Finally, Galbiso also argues the trial court erred in denying travel and lodging expenses incurred by Mr. Roesti. We disagree. Because the trial court properly concluded that it was unnecessary for Galbiso to retain out-of-town counsel, these added costs were not reasonably necessary. No abuse of discretion is shown with respect to the trial court’s denial of this cost item.
DISPOSITION
The trial court’s denial of $3,004.20 in costs for transcripts of audio recordings is reversed, with instructions that the trial court include that sum in the costs awarded to Galbiso. In all other respects, the orders of the trial court are affirmed. Costs on appeal are awarded to OPUD.
WE CONCUR: Levy, Acting P.J., Poochigian, J.