Opinion
F051782
9-4-2008
DANIEL HORSFORD et al., Plaintiffs and Appellants, v. THE BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY, Defendant and Respondent.
Law Office of Dean B. Gordon, Dean B. Gordon; Murray & Associates, Lawrence D. Murray; Johnson & Beck, Mark D. Johnson; Law Offices of Richard M. Pearl and Richard M. Pearl for Plaintiffs and Appellants. Murphy, Campbell, Guthrie & Alliston, George E. Murphy and Suzanne M. Nicholson for Defendant and Respondent.
Not to be Published
This is an appeal from a judgment for attorney fees entered after remand on a previous appeal. We will conclude that in all respects but one the record shows that the trial court applied the correct legal standards in determining the amount to be awarded as attorney fees; as to those areas, appellants have not demonstrated that the court abused its discretion. In one important respect, however, the record does not permit us to determine whether the trial court applied the correct legal standard, and the resolution of that ambiguity has, potentially, a significant impact on the trial courts exercise of discretion. Accordingly, we conditionally reverse the judgment.
Facts and Procedural History
The facts concerning the underlying action are set forth in detail in Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359 (Horsford). In short, Horsford was an employment discrimination action brought under the California Fair Employment and Housing Act, Government Code section 12900 et seq. (hereafter FEHA). Appellants Daniel Horsford, Richard Snow, and Steven King were prevailing plaintiffs at the trial of that action and, as such, were eligible for an award of reasonable attorney fees. (See Gov. Code, § 12965, subd. (b).) As one of several issues in Horsford, we determined the trial court had applied the wrong standards in awarding fees. (Horsford, supra, at pp. 395-396.) We reversed that portion of the judgment and "remanded for further proceedings consistent with the views expressed in this opinion." (Id. at p. 402.)
On remand, appellants submitted a revised and augmented motion for attorney fees. Respondent opposed the motion, contending appellants fee claims were grossly exaggerated and that the fee motion should be denied in its entirety, or that the fees at least should be substantially less than requested. Appellants submitted another revised request, acknowledging some errors in the first request and contending that other objections were unfounded.
The trial judge had recused himself during posttrial proceedings. On remand the matter was assigned to Judge Donald R. Franson, Jr., for consideration of the new fee motion. After full review of the record, and after hearings on the fee motion and a motion for new trial, the court entered a corrected fee award of $3,229,709.50. In doing so, the court reduced the fees from the requested amount of approximately $10.4 million.
Appellants filed a timely notice of appeal. They contend the court failed to follow our directions on remand, denied counsel a reasonable hourly fee, impermissibly reduced the number of hours to be compensated, inadequately compensated for the risk associated with prosecuting this case, and failed to award the correct statutory interest on the fee award.
Discussion
A. Standard for Award of Fees and Standard of Review on Appeal
The overarching theme of appellants opening and reply briefs is that this court, in Horsford, said that attorney fees awarded under FEHA should "fully compensate" the prevailing plaintiffs attorneys for time spent on the case. (See Horsford, supra, 132 Cal.App.4th at p. 395, quoting from Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) The problem with appellants argument is that "full compensation" does not mean "payment at the top permissible rate for all the hours counsel actually devoted to the case," which seems to us a fair restatement of appellants proposed standard for "full compensation."
Instead, the goal of an FEHA attorney fee award is, in the ordinary case, to compensate counsel at a reasonable rate for hours reasonably spent on the case. (Horsford, supra, 132 Cal.App.4th at p. 394.) To accomplish this purpose, the statute and case law commit to the broad discretion of the trial court the determination of a reasonable billing rate and the number of hours reasonably spent on the case. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; see Horsford, supra, at p. 394.) The resulting "lodestar" fee, that is, the number of hours times the hourly rate, may then be adjusted, in the discretion of the trial court, to achieve fair, market-rate compensation of prevailing counsel. (See Ketchum v. Moses, supra, 24 Cal.4th at pp. 1137-1138; Horsford, supra, at p. 395.) The goal in the trial court is full compensation of counsel "at the fair market value for the particular action." (Ketchum v. Moses, supra, at p. 1132.)
On appeal, we review the trial courts fee award for abuse of discretion. If the trial court has applied the correct legal standards, we determine only whether the trial courts action "`falls within the permissible range of options set by the legal criteria." (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452.) In such circumstances, "[t]he only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination." (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.)
It often is stated in the cases that the basis for application of the abuse of discretion standard of review is the fact that the trial judge is particularly capable of evaluating the services provided in his or her own courtroom. In this case, the judge making the attorney fee order on remand was not the trial judge. Nevertheless, it has long been the law that a substitute judge in posttrial proceedings exercises the same discretion as the original judge. (See, e.g., Churchill v. Flournoy (1899) 127 Cal. 355, 362; Kershner v. Morgali (1957) 152 Cal.App.2d 884, 885.) Here, the court stated it had relied, in part, on the observations of the original trial judge contained in the earlier attorney fee proceeding.
B. Reduction of Hours
Appellants challenge the trial courts reduction of hours claimed by attorneys Lawrence Murray and Dean Gordon and reduction of hours claimed for support staff in Gordons office. Apart from appellants erroneous contention, addressed above, that counsel were entitled to full compensation for all hours spent on the case, appellants assert two primary objections to the courts determination of hours reasonably spent on the litigation. Cognizant of the broad scope of the trial courts discretion and the narrow scope of our review, we briefly address each of the contentions.
1. Inadequate Explanation of Reductions
Citing several federal court attorney fee decisions, appellants contend the trial court is not permitted to drastically reduce counsels hours without providing sufficient details to permit counsel to respond to (i.e., contest) the award or to "discern what the court believes they should do differently when prosecuting discrimination cases in the future." Among the cases relied upon are Ferland v. Conrad Credit Corp. (9th Cir. 2001) 244 F.3d 1145, 1151, and Gates v. Deukmejian (9th Cir. 1992) 987 F.2d 1392, 1399.
No California cases impose a similar obligation on the trial court. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294 [no statement of decision required]; but see Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 622 [remanded for more detailed explanation of fee award where record made it unclear whether court had applied applicable legal standards].)
While the trial court is not required to provide a detailed accounting of its treatment of the hours claimed by plaintiffs attorneys, it is equally true that greater, rather than less, specificity aids the appellate court in reviewing the trial courts fee award. In the present case, while the court explained its reductions of claimed hours in rather broad terms, the courts discussion for the most part is sufficiently focused to permit review of the award. The court expressly stated that it had reviewed all billing records, as well as the declaration filed in support of the fee claim. The court expressly enumerated those areas in which it found all hours noncompensable (recreating billing records, purely clerical functions, and redundant record review in summary judgment and appellate proceedings). And the court gave reasons for those areas in which it determined that counsels time records failed to provide direct evidence of reasonable expenditure of time.
It is clear from the record that three factors were particularly important to the trial court in its evaluation of the hours claimed by counsel. First, most time records for work done prior to the original appeal were not contemporaneous records, but were reconstructed by counsel based on their calendars, their recollections, and their review of the pleadings and other documents in the case. As a result, the court was justified in rejecting these approximations when the entries seemed unjustified or implausible. Second, where entries in the time records provided only a vague description of counsels activities, particularly for large blocks of time, there was no basis to determine whether the time was reasonably spent and, therefore, compensable. Third, there were numerous instances in which, after review of respondents objections to the fee claim, appellants acknowledged that the time records were incorrect, either as a result of duplicate time entries or typographical errors in data entry. Not only was the trial court permitted to reject counsels explanations for these errors as not credible (or merely as inaccurate, given the reconstructed nature of many of the records), the court was permitted to conclude that the errors undermined the credibility of time claims where entries otherwise seemed unjustified or implausible.
This is not to say that contemporaneous time records are required as part of every attorney fee application; they are not. (See Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 270-272.) Still, the trial court is entitled to evaluate the records that are submitted and is not required to treat all records as equally informative or accurate. (See, e.g., PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096, fn. 4.)
For example, for July 22, 23 and 24, 2000, Murray claimed 10 hours, 10.5 hours, and 5 hours, respectively, for "trial prep — Shell." Similarly, on July 16 and 17, 2000, Gordon claimed 12 hours and 12.5 hours for "trial prep." While one can imagine this number of hours actually spent on trial preparation on a given day, it is, as the trial court concluded, not possible to determine from this type of "block billing" whether the hours were spent productively and reasonably.
The trial court cited an example in which an initial claim of 2.2 hours for preparation of a 12-line motion to exclude witnesses was reduced to .2 hours after respondent pointed out the unreasonableness of the initial claim. At the hearing on the motion for attorney fees, the court also referred to claims for two hours "or even longer" for "boilerplate" motions.
As we stated in our earlier opinion in this case, "the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous." (Horsford, supra, 132 Cal.App.4th at p. 396.) That does not mean that the time records are sacrosanct, however; it merely means the trial court must examine the records and use them as the basis for its lodestar determination where the records are found accurate and reliable. (See ibid.) In the present case, the trial court expressly stated that it had done this, and that its determination of hours reasonably spent was based on the courts "extensive and careful review and analysis of the bills submitted by each of the plaintiffs attorneys...."
At the hearing on the attorney fee motion, the court stated: "Im not accusing or even buying into the idea that any of you [appellants counsel] are dishonest or doing anything. I truly believe reading the record that everybody put in the time that they say they did." Nothing in the trial courts statement implies its wholesale acceptance of the time claims. In fact, the courts next sentence was: "The question is, is it efficient, duplicative in that area?" Indeed, appellants reply to respondents objections acknowledged that some time entries were incorrect — i.e., that counsel did not "put in the time" originally claimed and, at the hearing on the motion, Murray acknowledged that some of the specific entries were approximations, although he said the overall time claims were accurate.
In one important respect, however, the trial courts order on attorney fees, while sufficiently particularized, is, nevertheless, ambiguous, as respondents counsel candidly acknowledged at oral argument. Thus, with respect to "block billing" of the type described in footnote 3, ante, the order says that such billing made it impossible to determine from the billing records whether the hours were spent reasonably and productively and were, therefore, "compensable." It appears vague block billing was a problem in numerous areas, including discovery, "consultation" among attorneys, trial preparation, trial, and appeal.
We cannot determine from the order what steps the court took after coming to this conclusion, however. If, on the one hand, the trial court excluded the entire block of time in each instance of block billing, the court would have erred. If, on the other hand, the court adjusted the hours claimed (for example, by determining the amount of time that reasonably could have been spent overall on the type of activity reflected in the block billing, such as "trial prep" (see fn. 3, ante)), the courts statement that it had done so would adequately reflect its exercise of discretion.
This case involved a fee claim based on almost 10,000 hours of attorney time; a rather significant amount of that time is recorded in the block-billing format. (About 4,300 hours were disallowed for various reasons.) In fairness to the parties and to the trial court, we believe we must conditionally reverse this matter for clarification of this issue by the trial court. If it turns out the trial court did adjust, and not exclude, the block-billing hours, we cannot conclude the amount of the fee award was an abuse of discretion even though we may have made a higher award if the matter was before us in the first instance. If it turns out the trial court excluded all block-billed hours whenever the court determined the billing record did not directly permit a reasonableness determination, then on remand the court must exercise its discretion to award reasonable fees for the activities reflected in the block billings. Our disposition of this appeal reflects this conditional determination. Except to the extent just stated, we conclude the courts "Order on Motion for Statutory Attorneys Fees" was sufficiently specific under California law.
Given the magnitude of the present case, the court might find it useful to require respondents to submit a billing summary for discovery, trial preparation, trial, and the first appeal, redacted so the summary would not disclose privileged information. While the hours and hourly rates of opposing counsel would not be dispositive of plaintiffs fee claims, such information could well help place plaintiffs claims in some perspective. (See Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1251.) At the hearing in this case, Judge Franson posed the question whether respondents failure to disclose this information, in itself, supported an inference that plaintiffs original fee claim was not unduly high. The parties did not answer that question nor raise it on appeal. We do not decide the matter; we merely point out the possible usefulness of opposing partys legal bills in evaluating the number of hours plaintiffs counsel say was reasonably required to litigate this case. (See generally Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar, 2d ed. 2007 Supp.) § 14.36, pp. 444.1-444.2.)
2. No Reasonable Basis for Reductions
Appellants contend there is no "reasonable basis" in the record for the trial courts reduction of counsels claims for hours dedicated to this case, including the hours of paralegal staff. As discussed generally in the previous section, we conclude the courts reasoning is supported by the record. We briefly discuss appellants specific claims concerning the reasonable basis for the trial courts conclusions.
Appellants contend the trial court should be limited to those reductions proposed in respondents points and authorities in opposition to the fee claim. No California cases support such a limitation. (Appellants rely on Cunningham v. City of McKeesport (3d Cir. 1986) 807 F.2d 49, 50, in which the defendants filed no opposition at all to the plaintiffs fee request.)
We find no basis to impose a duty on opposing parties to quantify each objection or to impose on the trial court a limitation on its exercise of discretion based on such quantification. One example will demonstrate our reasoning. In this case, one disputed area was whether appellants needed three attorneys every day at trial or in attendance at strategy meetings. An opposition claim raising this issue in general terms would be sufficient. The trial court would be permitted to adjust a claim for this reason whether or not it was raised by the opposition, since the trial court may exercise its own judgment about the reasonable necessity of legal services. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1137-1138.)
As with a fee claimants time records, objections to the fee claim might be more persuasive the more specific they are, but there is no requirement of specificity for objections to be legally sufficient to permit consideration by the trial court.
In the present case, respondent extensively objected to appellants fee claim based both on quantified examples and on general categories. Respondent requested, inter alia, reduction of the claimed lodestar fee of $4.8 million by $1.1 million "for non-compensable billings" based on individually identified time-record entries. It then requested that the remaining lodestar amount be "reduced by an across-the-board percentage of anywhere from one-half to two-thirds to reflect a `reasonable fee for counsel had they managed this case with even a bare minimum of efficiency." We conclude the trial court appropriately considered the broader issues of inefficiency and duplication of effort by counsel.
Appellants find it "puzzling" that the trial courts reduction of allowable hours in most instances approximated the reductions proposed by respondent even though the court rejected "most" of respondents criticisms as unfair. Viewed in context, there is no inconsistency in the trial courts conclusions.
The single most striking feature of respondents trial court opposition to appellants fee request is its intemperate tone. The opposition in various places accuses appellants counsel of "shocking" "fraud" by "unscrupulous attorneys" who "seek to line their own pockets by artificially inflating their fee requests." Respondent concluded: "In the end, the egregiousness and sheer audacity of the fees claimed by plaintiffs counsel warrants this court denying their fee request altogether" as a "sanction" for "their wildly inflated fee request."
While the trial court found that counsels time records demonstrated "[e]xcessive billing, sometime flagrant," it rejected respondents criticism of counsels "numbers, efforts, veracity, and talent": "Some of the criticism is fair, most not." The court concluded: "Whatever the criticism, however, the fact remains that plaintiffs and their attorneys appeared for trial, day after day, and secured a very large jury award." The court was not required to ignore what it perceived as excessive time claims just because it rejected respondents characterization of that excess as intentional or fraudulent.
C. Reduction of Hourly Fee
The trial court awarded appellants counsel fees based on a lower hourly rate than counsel requested. Appellants contend their evidence supported higher hourly awards, respondent did not contest this evidence, and the trial court was required, as a matter of law under the circumstances, to award the hourly fee established by the evidence.
The hourly rates awarded by the trial court reflected a reasoned exercise of discretion. They were within the range of fees suggested by some of appellants evidence. In addition, the court stated it was relying on its own knowledge of fees locally and in the San Francisco area (where Murray normally practiced) and on findings by the original trial judge. These were permissible factors upon which to base the hourly rates. (See PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096.)
Appellants contend, however, that where uncontradicted evidence establishes that counsels claimed rates are reasonable, it is an abuse of discretion for the court to award a different hourly fee. We reject this premise as inconsistent with the overarching responsibility of the trial court to exercise its discretion in the award of a reasonable fee.
It is true, as appellants assert, that several Court of Appeal cases seem to support their proposed rule. (See Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 156; Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)
In Graciano, the trial court set the hourly fee "solely on an unrelated local rule capping expert witness hourly fees, disregard[ing] unopposed declarations" in support of a higher hourly fee. (Graciano v. Robinson Ford Sales, Inc., supra, 144 Cal.App.4th at p. 155.) In light of the trial courts application of the wrong legal standard for determining the hourly rate, the Graciano court concluded that appellants "unrebutted declarations established the prevailing rates in the region for attorneys with comparable skills and expertise, and her evidence compelled a finding that the requested hourly rates were within the reasonable rates for purposes of setting the base lodestar amount." (Id. at p. 156.) We believe this is dictum. The holding of the case was that the trial courts arbitrary reliance on the local expert witness rule was an abuse of discretion. (Ibid.)
In Hadley v. Krepel, supra, 167 Cal.App.3d at page 682, appellant, according to the court, contended the trial court "ignored uncontradicted evidence contained in the cost bill that [appellants] actual fees and costs were both reasonable and necessary." The appellate court, while finding that the record did not demonstrate "passion or prejudice" on the part of the trial court, concluded: "[W]e suspect something was amiss. The only explanation we can divine for the meager award is the trial judges unrealistic view of what constitutes a reasonable value for legal services. An award of attorneys fees and costs must be measured by the economics of the times." (Id. at pp. 686-687, original italics.)
In both of these cases, the appellate court remanded for reconsideration of the attorney fee award, in part, because the hourly fee award was far below prevailing reasonable rates. That is not the case in the matter before us. To the extent these cases stand for the proposition that the trial court is required to accept counsels claimed hourly rates, we disagree.
The other case on which appellants primarily rely is Childrens Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 783. That case is inapposite because the trial court had exercised its discretion to award fees, in essence, at the hourly rate requested by the prevailing party and the question on appeal was whether the award was too high. The appellate court found that "the hourly rates allowed by the trial court are within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work." (Ibid.) The case neither holds nor implies that the trial court must award fees at the hourly rate requested by the prevailing party.
Finally, we note that there was evidence submitted by appellants counsel that supported the courts determination of the hourly rate, namely, counsels statements that they charged, during a large portion of the time in question, the exact rate awarded by the trial court. Counsel argued that their hourly rate at the time of the initial fee motion, rather than the rate at the time services were rendered, should be used. The trial court, however, properly exercised its discretion to use the rates effective at the time services were rendered. Appellants have not shown that the trial court abused its discretion in setting the hourly rates upon which the lodestar was based.
D. The Lodestar Multiplier
As noted, the lodestar is computed by multiplying the reasonable number of hours spent by the prevailing parties counsel, by the reasonable hourly rate for such services. However, "the lodestar figure may be increased by application of a fee enhancement, or reduced as appropriate, after the trial court has considered other factors concerning the lawsuit, including the contingent nature of the fee award." (Ketchum v. Moses, supra, 24 Cal.4th at p. 1134.) The goal of such adjustment is to ensure a fair and just award that effectuates the purposes of the statute under which the prevailing party has sued, in this case the FEHA. (Horsford, supra, 132 Cal.App.4th at p. 394.) That act depends heavily on private litigation for its enforcement, and such litigation is usually prosecuted by plaintiffs whose attorneys are paid only if the plaintiff prevails; the award of attorneys fees in such cases, as a general matter, should be adequate to encourage attorneys to undertake such litigation in potentially meritorious cases. (Id. at p. 395.)
In this case, the lower court awarded a "blended" multiplier of 1.5 for services performed by attorneys Murray, Gordon, Johnson, and Pearl through and including the first appeal. The court stated that it had considered the "contingency and delay" factors discussed in Ketchum v. Moses, supra, 24 Cal.4th at page 1134, and in our previous opinion. (See Horsford, supra, 132 Cal.App.4th at p. 400.) We interpret the courts use of the term "blended" multiplier to imply both that the court recognized some services were performed longer ago than others and that a different balancing of the factors may have been applicable to the trial and appellate phases.
Appellants contend the court abused its discretion in selecting the 1.5 multiplier because the court stated it had considered, as part of its exercise of discretion, that some of counsels "bills have been clearly overstated, as defendant argues, and plaintiffs admitted to some. This has been taken into consideration by the court in determining an appropriate multiplier." They contend the court already had accounted for any such discrepancies in reducing the number of hours allowed in the lodestar calculation and that considering it again for multiplier purposes constitutes prohibited "double counting" of the deficiency. While recognizing that the trial court considered a range of factors in selecting the multiplier, appellants contend that, "[h]ad the Court not double-counted, it would have applied a significantly higher enhancement." They reach this conclusion by enumerating all of the aspects of the case that would lead to a higher multiplier.
We do not perceive any significant "double counting." In reducing the allowable hours, the trial court was attempting, based on all the available information, to reach totals of hours actually and reasonably spent on the case by each counsel. In selecting the multiplier, the court was engaged in a much more generalized evaluation of a fair compensatory award, without an attempt to quantify each of the various factors. (See Ketchum v. Moses, supra, 24 Cal.4th at p. 1134.) Indeed, quantification at that stage would be virtually impossible, which is why the Supreme Court has emphasized the necessity for an objectively reasonable lodestar as a starting point in the fee determination. (See ibid.) In any event, consideration of counsels billing practices as a "quality of representation" or related factor is conceptually different from reducing particular claimed hours as unreasonably spent. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 635.) Appellants have not established an abuse of the trial courts discretion.
E. Date of Commencement of Interest on Attorney Fee Award
Appellants expressly disclaimed the "delay" factor in arguing for a lodestar multiplier in the trial court. They argued instead that they should receive statutory interest on counsels trial-phase fees beginning on the original judgment date and on the appellate phase fees beginning when their entitlement to fees was adjudicated in the appellate opinion. We disagree.
It is clear the trial court did not determine, expressly or impliedly, that it would award interest on the fee award as part of its selection of a lodestar multiplier: At the hearing on appellants motion for new trial on the attorney fee award, the court had already decided on the multiplier after the first hearing but treated the interest issue as undecided. It did not increase the multiplier after it determined that statutory interest commenced only on the date of its award of fees after remand from this court. Accordingly, we reject respondents contention that the interest issue was subsumed in the multiplier determination.
Nevertheless, it is clear under settled law that the trial court awarded interest from the correct date. There are two components of our determination.
First, an appeal can result in a partial reversal. Such a reversal has the same effect, as to the portion of the judgment reversed, as any other reversal. (See generally 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 774, 777, pp. 802, 805-806.) While a partial reversal is not always appropriate, in this case the contested judgment for attorney fees was severable and we treated it as severable in our disposition of the prior appeal. (See id. at § 202, p. 255; Horsford, supra, 132 Cal.App.4th at p. 402.) In fact, the attorney fee order had been the basis of a separate notice of appeal and later consolidated with the appeal on the merits. (See id. at p. 366.)
Second, under the rule of Stockton Theatres, Inc. v. Palermo (1961) 55 Cal.2d 439, 446, interest on a judgment after reversal on appeal accrues from the date of the new judgment; interest on a judgment modified on appeal, whether modified up or down, accrues from the date of the original, preappeal judgment. Appellants contend the disposition in the prior appeal was a modification of the judgment because their fundamental entitlement to attorney fees was not altered and a portion of the fee was not reversed. (See Horsford, supra, 132 Cal.App.4th at p. 396, fn. 10.) However, neither entitlement to fees nor the portion of fees not affected by the appeal was an issue on appeal; the issue was the amount of the award to appellants for attorney fees. The disposition was a reversal with directions, investing the trial court with the power and obligation to determine that matter de novo. The situation is no different than any other in which a party obtains on appeal the right to a new trial, either on all or some of the issues.
In some FEHA cases, the issue of commencement of postjudgment interest is relatively unimportant: as a personal injury cause of action, the FEHA claim accrues prejudgment interest from the date of the injury. (See Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976.) Where the defendant is a governmental entity, however, no prejudgment interest may be awarded. (Civ. Code, § 3291.) Thus, whether a plaintiff in such a case obtains a reversal on the merits or on some severable issue, the plaintiff is not compensated for the delay in payment for his or her injury.
The trial court was correct in rejecting appellants interest claims in the present case.
Disposition
The order for attorney fees is conditionally reversed and is remanded for further proceedings. Upon remand, the trial court shall determine whether block-billing hours, as described above, were excluded from the fee award. If the court so determines, the court must permit the parties to make further submissions concerning the block-billing hours and, after hearing, the court shall enter a new order for attorney fees, having exercised its judicial discretion in adjusting the block-billing hours to reflect the reasonable compensation for the services in question. However, if the trial court determines that it did not exclude block-billing hours and that it already has exercised its discretion to adjust those hours, the trial court shall reinstate its previous order, which shall become the final order on attorney fees. Each party shall bear its own costs on appeal. The trial court shall award attorney fees on appeal to appellants if proceedings on remand result in an increase in the original order for fees.
WE CONCUR:
WISEMAN, J.
GOMES, J.