Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC380187 Amy D. Hogue, Judge.
Keith A. Fink and Associates, Keith A. Fink, S. Keven Steinberg, Andrew C. Pongracz, and Sarah E. Hernandez for Plaintiffs and Appellants.
Kaplan Lee, Jonathon Kaplan and Yitz E. Weiss for Defendants and Respondents.
MOSK, Acting P. J.
INTRODUCTION
Plaintiffs and appellants Jed Lorenzen (Jed) and Wyatt Lorenzen (Wyatt) appeal from the trial court’s order granting their motion for attorney fees. At trial, plaintiffs prevailed on some, but not all, of their Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) claims asserted against their former employers, defendants and respondents Foodbloom, LLC (Foodbloom) d.b.a. Vermont Restaurant, Manuel Mesta (Mesta), and Michael Gelzhiser (Gelzhiser). Plaintiffs contend that the trial court abused its discretion by failing to apply properly the lodestar method in determining the fee award. We affirm the order.
Because plaintiffs Jed Lorenzen and Wyatt Lorenzen share the same surname, they are referred by their first name.
All statutory citations are to the Government Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On November 2, 2007, plaintiffs filed a complaint against defendants Vermont Restaurant, Mesta, and Gelzhiser, and Vermont Restaurant Partners, which alleged 13 causes of action: (1) violation of section 12900, et seq., [harassment based on sex]; (2) violation of section 12900, et seq., [harassment based on sexual orientation]; (3) violation of section 12900 [discrimination based on sex]; (4) violation of section 12900 [discrimination based on sexual orientation]; (5) violation of section 12940, subdivision (k) [failure to prevent harassment and discrimination]; (6) violation of section 12900, et seq., [retaliation]; (7) wrongful termination in violation of section 12900, et seq.; (8) violation of section 12900, et seq., [discrimination and constructive termination]; (9) wrongful termination in violation of public policy; (10) intentional infliction of emotional distress; (11) violations of Labor Code sections 226.7 and 512; (12) violation of Labor Code section 201, et seq.; and (13) violation of Business & Professions Code section 17200 et seq.
The record includes a case summary which provides that on March 14, 2008, an amendment to the complaint was filed, but the amendment is not included in the record.
Vermont Restaurant Partners is not a party to this appeal, and defendant Foodbloom is not named in the complaint. On March 2, 2009, the trial court granted plaintiffs’ motion to deem “Vermont Restaurant” to mean “Foodbloom L.L.C., dba Vermont Restaurant Partners” whenever it appears in the verdicts.
The first, second, sixth, tenth and thirteenth causes of action are against all of the defendants, and the third through fifth, eleventh and twelfth causes of action are against Vermont Restaurant and Vermont Restaurant Partners. Jed’s seventh and ninth causes of action, and Wyatt’s eighth cause of action are against Vermont Restaurant and Vermont Restaurant Partners.
Each cause of action incorporated and was based on the first 30 paragraphs of facts of the complaint. Plaintiffs alleged that they were hired by defendants as restaurant servers and that plaintiffs were subjected to a hostile work environment based on sex and sexual orientation. Plaintiffs also alleged that Jed was terminated after he rejected Mesta’s sexual advances. In addition, plaintiffs alleged that Wyatt was forced to quit his job because of sexual harassment and defendants refused to schedule Wyatt for work after he rejected the sexual advances by Mesta and Gelzhiser. Plaintiffs further alleged that they were required to attend a mandatory four-day training program without pay, forced to forgo meal and rest periods required by law, and were not paid all wages owed to them upon their termination.
On March 2, 2009, following a jury trial, a verdict was entered in favor of plaintiffs on the harassment claims only, and each plaintiff was awarded $1,000. The record does not contain transcripts of the trial.
The record does not specify the particular causes of action that the jury found in favor of plaintiffs. The parties appear to agree, however, that the causes of action on which plaintiffs prevailed was the first cause of action for violation of section 12900, et seq. [harassment based on sex], the second cause of action for violation of section 12900, et seq. [harassment based on sexual orientation], and the fifth cause of action for violation of section 12940, subdivision (k) [failure to prevent harassment and discrimination].
Plaintiffs thereafter filed a motion for attorney fees pursuant to section 12965. Plaintiffs claimed to have incurred $283,255 in attorney fees for the entire case, and they sought a 2.0 multiplier for a total requested award of $566,510. Plaintiffs’ motion contended, inter alia, that plaintiffs were entitled to the requested attorney fees because the fees were reasonable, plaintiffs’ successful and unsuccessful claims were interrelated, plaintiffs’ counsel displayed extraordinary skill on a difficult case, there was a contingent nature to the fee award, and plaintiffs’ counsel was precluded from other employment. In support of the motion, plaintiffs submitted a declaration from an attorney who practices employment law opining that the hourly rates charged by plaintiffs’ counsel were reasonable, that plaintiffs’ claims were important to the development of employment law, and there was a contingent risk of loss associated with employment cases. Plaintiffs also submitted declarations from those who worked on the case regarding the hours spent on the case, but the record does not indicate that plaintiffs attached copies of the billing statements supporting the attorney fees request.
Defendants opposed the motion, supported by declarations, arguing, inter alia, that plaintiffs were not prevailing parties for purposes of obtaining an attorney fees award because they obtained a nominal damages award and were unsuccessful on a variety of their claims. Defendants further argued that plaintiffs’ claims were distinct and not inextricably linked, the requested fees were unreasonable and unnecessary, and the requested fees were not supported by adequate evidence. Defendants also argued the attorney fees should be reduced and not multiplied as plaintiffs requested. According to defendants, the case was not difficult, plaintiffs’ counsel did not display extraordinary skill in the case, and plaintiffs rejected a settlement offer that was well in excess of the amount awarded by verdict, thereby diluting the contingent nature of the fee award. Defendants submitted objections to some of the declarations that plaintiffs submitted in support of their motion, and a declaration from a retired Los Angeles County Superior Court judge in which he asserted that plaintiffs’ claims did not serve a public benefit. In reply, plaintiffs’ contended that they were the prevailing party under Code of Civil Procedure section 1032, all of plaintiffs’ claims were interrelated except the wage and hour claims, the claimed attorney fees were reasonable, plaintiffs’ claims were complex, and there was a contingent nature to the fee award.
On April 27, 2009, the trial court held a hearing on plaintiffs’ motion for attorney fees and plaintiffs’ motion to tax costs claimed by defendants. The trial court ordered that the parties file supplemental briefs and continued the hearing on both matters to June 19, 2009. The record does not include a reporter’s transcript of the April 27, 2009, hearing.
Defendants had filed a memorandum of costs, and plaintiffs filed a motion to tax those costs.
Plaintiffs also filed a memorandum of costs and defendants filed a motion to strike/tax those costs. Defendants’ motion to strike/tax was scheduled to be heard on May 15, 2009, but at the April 27, 2009, hearing the trial court also continued that hearing to June 19, 2009.
On June 19, 2009, the trial court held a second hearing on plaintiffs’ motion for attorney fees. The record includes a case summary that provides that the trial court issued an order that day, but the record does not include the trial court’s order nor does it include a reporter’s transcript of the hearing.
On July 13, 2009, defendants filed a brief regarding the billing records of plaintiffs’ counsel contending that plaintiffs’ requested fees should be reduced by the time expended on plaintiffs’ unsuccessful claims, plaintiffs’ claims were distinct and not intertwined, plaintiffs’ minimal award justified a downward adjustment to the amount awarded, and plaintiffs’ requested fees should be reduced because plaintiffs’ claimed fees were unreasonable and unnecessary. Defendants filed a declaration that attached “an annotated copy of plaintiffs’ counsel’s [sic] billing records.” The declarant asserted that approximately 75-80 percent of plaintiffs’ billing records for the entire lawsuit pertained to plaintiffs’ unsuccessful claims, and that approximately 20-25 percent pertained to plaintiffs’ successful claims. The declarant also asserted that the total amount of fees attributable to plaintiffs’ successful causes of action, after deducting claimed attorney fees for unreasonable, redundant, duplicative, and unnecessary work, was $57,955.31. In addition, the declarant applied a reduction factor of.15, asserting that the total fees to be awarded to plaintiffs should be $8,693.30.
The declaration does not identify the source of the billing records or state whether they are all of the billing records of the attorney fees sought by plaintiffs, and the record does not otherwise include copies of the billing records in support of plaintiffs’ motion for attorney fees.
On July 27, 2009, plaintiffs’ filed a reply to defendants’ brief. Plaintiffs argued that their requested fees were reasonable and should not be discounted by any amount, and apportionment of attorney fees between plaintiffs’ claims would be improper because all of plaintiffs’ claims were interrelated except for their wage and hour claims.
The trial court took plaintiffs’ motion for attorney fees under submission. On August 13, 2009, the trial court awarded $60,400 in attorney fees to plaintiffs. The trial court’s order states that “The jury found in favor of Plaintiffs and against... Defendants Vermont Restaurant, Manuel Mesta and Michael Gelzhiser on one cause of action—sexual harassment/hostile work environment—and awarded each Plaintiff the nominal sum of $1,000 in damages. [¶] The thirteen causes of action in the Complaint fall into three discrete categories of allegedly unlawful conduct. Counts One through Five and Count Ten address alleged sexual harassment and/or gender discrimination in the workplace; Counts Six through Nine address alleged wrongful termination of employment; and Counts Eleven through Thirteen address various wage and hour concerns. Since the jury found no merit in the wrongful termination or wage and hour claims, the fees attributable to the prosecution of these claims is not properly recoverable under FEHA. [¶] Based on a detailed review of the billing records for Plaintiffs’ attorneys, the court finds that the reasonable fees incurred to prosecute all causes of action is $181,200. In light of the extremely modest damage award and the disproportionate amount of time invested in Plaintiff’s (sic) unsuccessful claims, the court, in its discretion, awards $60,400.00 in attorneys’ fees to Plaintiffs (1/3 or $181,200).” The trial court’s order states that plaintiffs prevailed “on one cause of action—sexual harassment/hostile work environment....” There was, however, no cause of action entitled sexual harassment/hostile work environment. As noted ante, although the record does not specify the particular causes of action on which the jury found in favor of plaintiffs, it appears the parties agree that plaintiffs prevailed on three causes of action: the first, second, and fifth. Plaintiffs filed a timely notice of appeal. In response to an inquiry from the court concerning the effect of the absence in the record on appeal of a reporter’s transcript of proceedings in the trial court, the parties filed letter briefs on the matter.
DISCUSSION
A. Standard of Review
A trial judge’s fee award “‘will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ [Citations.]” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) We review an attorney fee award under Government Code section 12965, subdivision (b) for an abuse of discretion. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921; Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387.) The California Supreme Court has defined the test for an abuse of discretion as follows: “‘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 [243 Cal.Rptr. 902, 749 P.2d 339].)” (Walker v. Superior Court (1991) 53 Cal.3d 257, 272; see also Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1200.) “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.” (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
B. Legal Principles
In enacting the FEHA, the Legislature sought to safeguard the rights of all persons to seek, obtain, and hold employment without discrimination on account of various characteristics, which now include race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, and sexual orientation. (§ 12920; see Stevenson v. Superior Court (1997) 16 Cal.4th 880, 890-891; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 493.) The FEHA provides that the trial court, “in its discretion, may award to the prevailing party reasonable attorney’s fees and costs....” (§ 12965, subd. (b).) “The challenge to the trial courts is to make an award that provides fair compensation to the attorneys involved in the litigation at hand and encourages litigation of claims that in the public interest merit litigation, without encouraging the unnecessary litigation of claims of little public value.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1172.)
The determination for fees under section 12965 must be based upon the utilization of the lodestar method. (Weeks v. Baker & McKenzie, supra, 63 Cal.App.4th at pp. 1171-1172; Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 647.) “The lodestar (or touchstone) is produced by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate.” (Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 26; see Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322.) “The ‘lodestar adjustment method of calculating attorney fees... is designed expressly for the purposes of maintaining objectivity.’ [Citation.] The trial judge ultimately has discretion to determine the value of the attorney services. ‘However, since determination of the lodestar figure is so “[f]undamental” to calculating the amount of the award, the exercise of that discretion must be based on the lodestar adjustment method.’ [Citation.]” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)
Yet “despite all this emphasis on trial courts beginning their attorney fees calculations with a lodestar amount... [n]one of [the] Supreme Court decisions require[] a trial court to provide an explanation of its decision on a motion for attorney fees. This precedent teaches trial courts how to think about claims for fees, not what to say in ruling on the claims.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 65, fn. omitted.)
“[A]bsent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent” in litigating the action to a successful conclusion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) “Reasonably spent” means that time spent “in the form of inefficient or duplicative efforts is not subject to compensation.” (Id. at p. 1133.)
“The ‘experienced trial judge is the best judge of the value of professional services rendered in his court....’ [Citations.]” (Serrano v. Priest (1977) 20 Cal.3d 25, 49; accord, Granberry v. Islay Investments (1995) 9 Cal.4th 738, 752.) “When the trial court substantially reduces a fee or cost request, we infer the court has determined the request was inflated. [Citation.]” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1323.)
C. Calculation of the Fee Award
Plaintiffs argue on appeal that for several reasons the trial court abused its discretion in calculating the award of attorney fees against defendants. We disagree.
1. Express Analysis
Plaintiffs contend the trial court erred by not properly applying the loadstar method because it did not provide any supporting analysis to support its initial reduction of plaintiffs’ claimed attorney fees of $283,255, to $181,200, which the trial court deemed to be “the reasonable fees incurred to prosecute all causes of action....” This contention is without merit.
This was the first of two reductions to plaintiffs’ requested attorney fees. The second reduction was made “[i]n light of the extremely modest damage award and the disproportionate amount of time invested in Plaintiff’s (sic) unsuccessful claims, ” which resulted in the trial court awarding plaintiffs $60,400 in attorney fees. Plaintiffs state that “the court’s ‘second cut’ of fees... could be interpreted as a first prong lodestar calculation....”
The trial court was not required to state its reasoning in awarding attorney fees. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1140; Maria P. v. Riles, supra, 43 Cal.3d at p. 1294; Gorman v. Tassajara Development Corp., supra, 178 Cal.App.4th at p. 67.) In Maria P. v. Riles, supra, 43 Cal.3d 1281, the defendants challenged an attorney fees awarded to plaintiff and complained that the trial court had erred by failing to issue a statement of decision under Code of Civil Procedure section 632. The court stated that, “Cases decided under section 632 generally have held that a statement of decision is not required upon decision of a motion. [Citations.]... [W]e have discovered no case requiring a statement of decision for an order on a motion for attorney fees.” (Id. at p. 1294; accord, Gorman v. Tassajara Development Corp., supra, 178 Cal.App.4th 44)
Code of Civil Procedure section 632 provides in part, “In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision.”
Even assuming Code of Civil Procedure section 632 applied to an order on a motion for attorney fees, the April 27, 2009, and June 19, 2009, hearings presumably concluded “in less than eight hours over more than one day.” Under Code of Civil Procedure section 632, therefore, a “request [for a statement of decision] must be made prior to the submission of the matter for decision.” (Ibid.) There is no indication in the record that plaintiffs requested the trial court to state its reasoning in awarding attorney fees. A party’s entitlement to a statement of decision depends on the party making a timely request. (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 280; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 980.)
In Ketchum v. Moses, supra, 24 Cal.4th 1122, the issue on appeal was whether the trial court had properly calculated the attorney fees due after it granted a special motion to strike a complaint under section 425.16. The court stated that, “Ketchum... contends that the superior court erred by failing to provide a ‘reasoned explanation’ for denying his objections to specific items in the billing records. The superior court [however] was not required to issue a statement of decision with regard to the fee award. [Citation.]” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1140.)
In addition, the court in Gorman v. Tassajara Development Corp., supra, 178 Cal.App.4th 44, stated, “We find no California case law analogue to section 632 requiring trial courts to explain their decisions on all motions for attorney fees and costs, or even requiring an express acknowledgment of the lodestar amount. The absence of an explanation of a ruling may make it more difficult for an appellate court to uphold it as reasonable, but we will not presume error based on such an omission. As reiterated in Ketchum, supra, 24 Cal.4th 1122 at page 1140: ‘“‘All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown.’” [Citation.]’” (Gorman v. Tassajara Development Corp., supra, 178 Cal.App.4th at p. 67.) The court in Gorman continued, “In awarding attorney fees in a lesser amount than requested, trial courts are not required to specify each and every claimed item found to be unsupported or unreasonable. [Citation.]” (Ibid.)
2. Failure to Specify the Number of Hours Spent
Plaintiffs also argue the trial court erred because the court “found reasonable fees spent, not hours spent litigating the entire case, ” thus suggesting that the trial court was required to specify the hours spent upon which the fees should be based. This contention by plaintiffs is also without merit.
In Maria P. v. Riles, supra, 43 Cal.3d 1281, the defendants contended that the trial court erred in awarding attorney fees because despite their requesting that the court issue a written statement of decision, the court’s order did not make certain loadstar findings, including “findings on the factual issues of attorneys’ hours or rates.” (Id. at 1293- 1294.) The court held that the trial court had not erred because it was not required to make such findings. (Id. at 1294.)
The trial court found that $181,200 was a reasonable fee for prosecuting all causes of action “[b]ased on a detailed review of the billing records for Plaintiffs’ attorneys.” The trial court, therefore, used the time records of plaintiffs’ attorneys as the starting point for its lodestar determination. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1132-1133.) It is presumed that the trial court followed the applicable law and applied the loadstar method (Evid. Code, § 664), and the trial court’s fee determination “‘“will not be disturbed unless the appellate court is convinced that it is clearly wrong.”’” (Ketchum, supra, 24 Cal.4th at p. 1132; accord, In re Marriage of Zimmerman, supra, 16 Cal.App.4th at pp. 561-562.) We are not convinced that the trial court was clearly wrong in determining the reasonable fees for prosecuting the entire case.
3. Fees Incurred on Successful Claims
Plaintiffs state in their opening brief that an “issue on appeal” is whether “the trial court abuse[d] its discretion by failing to award [plaintiffs] their reasonable attorneys’ fees for all work related to their successful claims against [defendants].” Plaintiffs’ contention fails.
Plaintiffs do not contend how the trial court failed to award them all of their reasonable fees for their successful claims, other than, as discussed below, to argue that defendants claimed 78 percent of plaintiffs’ fees related to plaintiffs’ successful claims and the trial court awarded a lesser amount of attorney fees. The trial court has discretion to determine the value of the attorney services. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295.) “When the trial court substantially reduces a fee or cost request, we infer the court has determined the request was inflated. [Citation.]” (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th 1315, 1323.)
In addition, plaintiffs have not provided us with an adequate record to support a contention that the trial court erred by not awarding them all of their reasonable fees for their successful claims. The record does not contain plaintiffs’ billing statements, other than to the extent they may have been provided by defendants in opposing plaintiffs’ motion for attorney fees. The record also does not include the transcripts of the two hearings regarding plaintiffs’ motion or of the trial. “[T]he party challenging a fee award... has an affirmative obligation to provide an adequate record so that we may assess whether the trial court abused its discretion. [Citations.] We cannot presume the trial court has erred.... The absence of a record concerning what actually occurred at the trial precludes a determination that the trial court abused its discretion.” (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447-448.)
As stated above, plaintiffs also contend that the trial court erred in reducing the amount of the attorney fees sought by plaintiffs because defendants claimed “that only $64,431.25 of the $283,255.00 in fees [claimed by plaintiffs] were [for fees] not related to [plaintiffs’] successful [claims].” Plaintiffs argue “[t]his represents only 22% of the total fees.” Plaintiffs contend, therefore, the trial court abused its discretion by not determining that they should be awarded $218,823.75—the difference between $283,255.00 and $64,431.25. The trial court did not err in this regard.
Plaintiffs do not provide any authority holding that the trial court’s discretion to award attorney fees was limited by the contentions of the parties. In addition, plaintiffs incorrectly characterize that defendants contended in opposition to their motion that only $64,431.25 in plaintiffs’ attorney fees were unrelated to plaintiffs’ successful claims. In support of defendants’ opposition to plaintiffs’ request for attorney fees, they submitted a declaration by one of defendants’ attorneys, Yitz E. Weiss. Mr. Weiss stated that the sum of $64,431.25 represented a reduction for the “[b]illing entries relating solely to plaintiffs’ unsuccessful causes of action, and billing entries pertaining to unreasonable, redundant, duplicative and/or unnecessary work. (Italics added.) Mr. Weiss also stated that the “[b]illing entries relating solely to plaintiffs’ successful causes of action have not been reduced.” (Italics added.) Mr. Weiss further explained that, “[t]he remaining billing entries, which were general in nature, have been apportioned 75% to plaintiffs’ unsuccessful causes of action and 25% to the causes of action upon which plaintiffs’ (sic) prevailed.” He concluded that, “[t]he total amount of fees attributable to plaintiffs’ successful causes of action, remaining after the above reductions is $57,955.31.” Mr. Weiss argued that the sum of $57,955.31 should be reduced to $8,693.30, because of plaintiffs’ limited success, their presentation of uncorroborated and false testimony, and plaintiffs’ failure to obtain certain categories of damages sought. The trial court awarded plaintiffs $60,400 in attorney fees, more than either of defendants’ proposed fee amounts of $57,955.31 or $8,693.30.
4. Fees Incurred For Unsuccessful Claims
Plaintiffs claim that the trial court erred in reducing the attorney fees award by the fees incurred in connection with plaintiffs’ unsuccessful claims because the trial court did not make an express finding that plaintiffs’ unsuccessful claims were unrelated to plaintiffs’ successful claims. We disagree. As discussed ante, the trial court was not required to make an express finding whether plaintiffs’ claims were interrelated.
The trial court reduced plaintiffs’ attorney fees award to one-third of the reasonable attorney fees to prosecute all causes of action based, in part, on “the disproportionate amount of time invested in Plaintiff’s [sic] unsuccessful claims.” Plaintiffs contend that the trial court erred by not awarding attorney fees for their unsuccessful claims that plaintiffs deem to be related to their successful claims.
The trial court divided the claims into three “discrete categories of allegedly unlawful conduct.” The first consisted of counts one through five and ten that “address alleged sexual harassment and/or gender discrimination in the workplace.” These counts involved harassment based on sex and sexual orientation, discrimination based on sex and sexual orientation, failure to prevent harassment and discrimination, and intentional infliction of emotional distress. The second consisted of counts six through nine that “address alleged wrongful termination of employment.” These counts were for retaliation, wrongful termination, discrimination and constructive termination, and wrongful termination in violation of public policy. The third consisted of “wage and hour claims”—counts 11 through 13. These counts were for Labor Code violations and violations of Business & Professions Code sections 17200 et seq.
Plaintiffs concede that their claims for Labor Code violations, which were placed in the third category, were not related to their successful claims. Plaintiffs, however, contend that their unsuccessful “claims for discrimination, retaliation, wrongful termination, wrongful discharge, emotional distress, and unfair business practices claims were interrelated to [their successful] claims of harassment and failure to prevent harassment” and, therefore, they were entitled to recover reasonable attorney fees for prosecuting these claims.
A trial court may reduce an attorney fees award by the fees incurred in connection with plaintiffs’ unsuccessful claims, but only if the unsuccessful claims were distinct from the successful claims. The court in Chavez v. City of Los Angeles (2010) 47 Cal.4th 970 stated that under federal law, “If a plaintiff has prevailed on some claims but not others, fees are not awarded for time spent litigating claims unrelated to the successful claims, and the trial court ‘should award only that amount of fees that is reasonable in relation to the results obtained.’ [Citation.]... [¶] On this point, California law is consistent with federal law. [F]ees are not reduced when a plaintiff prevails on only one of several factually related and closely intertwined claims (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 431 [69 Cal.Rptr.3d 1])....” (Id. at 989; Environmental Protection Information Center v. Department of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 238.)
We asked the parties to brief whether a determination that plaintiffs’ unsuccessful claims were or were not related to their successful claims can be based solely upon the pleadings, or must also be based on the evidence introduced at trial. We also asked the parties to brief whether the record is inadequate if evidence is necessary for making that determination. Plaintiffs contend that the determination may be made based solely on the pleadings, and evidence is not required. Accordingly, plaintiffs contend the record is adequate because it includes the complaint. Defendants contend that the determination must be based not only on the pleadings, but on evidence, including the reporter’s transcript of the hearings on the motions, and on the reporter’s transcript of the trial and the evidence introduced at the trial. The record is inadequate, defendants argue, because it does not include the reporter’s transcript on the trial and the hearing on the motions and the evidence introduced at the trial.
Claims are unrelated if they “are based on different facts and legal theories. [Citation.]” (Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1311.) An unsuccessful claim is unrelated to a successful claim when it is intended to remedy “a course of conduct” entirely distinct and separate from “the course of conduct” that gave rise to the injury on which the relief granted is premised. (Id. at p. 1311.) The trial court has discretion to consider “all of the facts and the entire procedural history of the case in setting the amount of a reasonable attorney’s fee award.” (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 452.)
“It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error. [Citations.]” (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295.) “Appellant must affirmatively show error by an adequate record; error is never presumed. [Citation.]” (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
The record includes the complaint. Plaintiffs, however, have not cited any authority to support their contention that we may rely on the pleadings alone to determine whether claims are related. Allegations in the complaint may not be supported by, and may be different from, the evidence introduced at trial. What might arguably be related claims as plead in the complaint may not ultimately be related based upon the evidence presented at trial in support of the claim. The record does not disclose the evidence introduced at trial sufficient for us to determine the relationship or lack of relationship among the claims.
Wysinger v. Automobile Club of Southern California, supra, 157 Cal.App.4th 413, illustrates that it is appropriate to base a determination of interrelated claims, at least in part, on the evidence presented at trial to support those claims. In Wysinger, the plaintiff sued his employer for various discrimination claims under the FEHA. After a jury trial, the plaintiff prevailed on his claims that the defendant failed to engage in an “interactive process” to determine reasonable accommodation for the plaintiff’s disability, and that the defendant retaliated against the plaintiff because the plaintiff filed a complaint of age discrimination. (Id. at p. 419.) The plaintiff, however, did not prevail on his claims that the defendant failed to provide a reasonable accommodation for the plaintiff’s disability, and that the defendant discriminated against the plaintiff because of his physical disability or age. (Id. at pp. 417, 419.) The defendant claimed the causes of action were unrelated and distinct. (Id. at p. 431.)
The record in Wysinger v. Automobile Club of Southern California, supra, 157 Cal.App.4th 413, included detailed facts about the trial testimony and evidence. (Id. at pp. 419-430.) Although the court, in part, referred to the allegations in the complaint in determining that the causes of action were related (id. at p. 431), it also determined whether the claims were related based upon the evidence presented at trial. The court stated that the defendant “claims that the FEHA retaliation cause of action only involved proof that [the plaintiff] made an age discrimination claim and [the defendant] retaliated. But the trial court could find that in proving retaliation [the plaintiff] tried to show why he felt justified in filing the age discrimination claim. This required proof of his work history and evidence of age discrimination. ‘[A] competent attorney must do more at trial than present just the bare bones of [a] prima facie case....’ [Citation.] Moreover, [the plaintiff] prevailed on the interactive process claim which involves proof of disability.” (Id. at p. 431; italics added.)
Odima v. Westin Tucson Hotel (9th Cir. 1995) 53 F.3d 1484, also illustrates the need to review the trial evidence in determining if claims are interrelated. In Odima, the plaintiff prevailed on his claims that his employer discriminated against him on the basis of race and nationality, but he was unsuccessful on his claims for wrongful termination, constructive discharge, retaliation, and intentional infliction of emotional distress. The court held that plaintiff’s claims were interrelated. (Id. at 1499.) The court stated that the district court “issued a lengthy memorandum opinion, ” set forth “detailed findings of fact” and summarized the evidence regarding plaintiff’s discrimination claims. (Id. at pp. 1488-1490, 1492.) The court in Odima also set forth in detail the facts of plaintiff’s claims. (Id. at pp. 1489-1491.)
In holding that all of plaintiff’s claims were interrelated, the court found that at trial the plaintiff was required to present virtually the same evidence for all of his claims. (Odima v. Westin Tucson Hotel, supra, 53 F.3d at p. 1499.) The court stated that “[t]o prove the discrimination claims pursuant to Title VII and section 1981, [the plaintiff] had to present evidence of his work environment, his relationship with his superiors, his interactions with the Human Resources staff, his efforts to advance and the impact of [the defendant’s] discriminatory practices. [The plaintiff’s] state tort claims for retaliation, constructive discharge, and wrongful termination required virtually the same evidence.” (Ibid; italics added.)
From the pleadings here, it would appear that several of plaintiffs’ unsuccessful claims were related to their successful claims. But, it may be that such claims that seem, by the pleadings to be related to the successful claims, were either not pursued at trial or were completely unsupported by evidence at trial. Thus, because the record on appeal does not contain the reporter’s transcript of the trial, we cannot determine from the record whether some of plaintiffs’ unsuccessful claims were related to their successful claims. Also, unlike in Odima v. Westin Tucson Hotel, supra, 53 F.3d 1484, the record does not include a lengthy trial court memorandum of opinion, detailed findings of fact, or the trial court’s summary of the evidence.
Moreover, there is no reporter’s transcript of the two hearings on plaintiffs’ motion for attorney fees. Thus, we cannot determine what occurred before the trial court, such as arguments or concessions made. And, as discussed ante, the trial court is not required to provide a statement of decision or otherwise state its reasoning in awarding attorney fees. Thus, the argument might be revealing as to the trial court’s considerations. We, therefore, do not conclude that the trial court erred in reducing the attorney fees award by two-thirds.
In addition, plaintiffs “must... show that the error was prejudicial [citation] and resulted in a ‘miscarriage of justice’ [citation]. [Citation.]” (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069; Cal. Const., art. VI, § 13; Code of Civ. Proc., § 475.) “‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence, ” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) Without the reporter’s transcript, we cannot determine if any error was prejudicial. For example, if negligible time was spent on a claim that should have been considered related to the successful claim, an error in considering the claim unrelated, may not be prejudicial. As it is plaintiffs’ obligation to show prejudicial error, because of the lack of a reporter’s transcript in this case, plaintiffs have not shown such prejudicial error.
The California Constitution, Article VI, section 13, provides that “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
Code of Civil Procedure, section 475, provides that “The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.”
5. Reduction for Modest Damages Award
The jury awarded each plaintiff $1,000 each for “[f]uture noneconomic loss, including physical pain/mental suffering.” Plaintiffs contend that the trial court erred in reducing plaintiffs’ claimed attorney fees “[i]n light of the extremely modest damages award” because they did not show any “physiological injury” or “psychological harm” “in order to prevail on [their] claims for sexual harassment.” Plaintiffs, however, do not provide any authority that a trial court errs by reducing an attorney fees award based upon a nominal damages award when a plaintiff was not required to prove any additional damages.
“‘It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court.... [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.]... The trial court makes its determination after consideration of a number of factors, including... the success or failure [of the litigation], and other circumstances in the case.’ [Citation.]” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096.) “California law allows the trial court to reduce [an] attorneys’ fees award based on the results... obtained, or not to reduce the fee award, as the trial judge finds is appropriate in the exercise of her discretion.” (Beaty v. BET Holdings, Inc. (9th Cir. 2000) 222 F.3d 607, 610.) The court in Beaty explained that “[g]ranting... discretion to the trial court [to consider the ‘success or failure’ of the litigation as a factor in assessing the fee] serves the important function of deterring the litigation of claims with little merit. [Citation.]” (Id. at p. 612.)
In Chavez v. City of Los Angeles, supra, 47 Cal.4th 970, the plaintiff brought an action under the FEHA. The plaintiff “recovered damages of $11,500, which is less than half of the $25,000 jurisdictional limit for a limited civil case [citation]. [The] [p]laintiff did not bring the action as a limited civil case....” (Id. at p. 976.) The trial court denied the plaintiff’s motion seeking an attorney fee award of $870,935.50. In holding that there was no abuse of discretion in the trial court’s decision denying an attorney fees award to the plaintiff, the court stated, inter alia, that because of the limited damages award, “the trial court could, and did, reasonably conclude that this action should have been brought as a limited civil case, ” and that the trial court was able to determine that the action might “fairly and effectively” have been litigated in that forum. (Id. at p. 991.)
Even when a plaintiff’s unsuccessful claims were related to the plaintiff’s successful claims, “if only partial or limited success [was] obtained, full compensation may be excessive. Such decisions are within the district court’s discretion.” (Odima v. Westin Tucson Hotel, supra, 53 F.3d at p. 1487.)
Here, although plaintiffs offered to settle the case for $1.2 million and did not accept defendants’ subsequent settlement offer of $5,000 for each plaintiff, they were each awarded only $1,000. The trial court did not abuse its discretion in reducing the reasonable fees award “[i]n light of the extremely modest damages award....”
DISPOSITION
The trial court’s order is affirmed. Each party shall bear his or its own costs on appeal.
We concur: KRIEGLER, J., KUMAR, J.
Judge of Superior Court of the Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.