Opinion
No. H032542.
May 4, 2009. [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.B.
Appeal from the Superior Court of Santa Clara County, No. CV038065, Kevin E. McKenney, Judge.
Law Offices of S. Chandler Visher, S. Chandler Visher; Law Offices of Matthew J. Witteman, Matthew J. Witteman; Law Offices of Bradley C. Arnold and Bradley C. Arnold for Plaintiff and Appellant.
Ann Miller Ravel, County Counsel, Stephen H. Schmid, Deputy County Counsel, and Aryn Paige Harris, Deputy County Counsel, for Defendant and Appellant.
OPINION
Martin Ramon brought a class action to prevent the County of Santa Clara (County) from billing individuals for the cost of their arrests for driving under the influence of alcohol or drugs when there was no emergency "incident" as the term is used in Government Code section 53150. After the parties entered into a settlement agreement that provided injunctive and declaratory relief to the class, the trial court awarded attorney's fees to Ramon pursuant to Code of Civil Procedure section 1021.5. On appeal, Ramon challenges the amount of the attorney's fees award. He contends that the trial court erred in concluding that the case of Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169 [ 39 Cal.Rptr.3d 788, 129 P.3d 1] ( Connerly) precluded the recovery of attorney's fees to Ramon for work performed by his counsel in opposing the County's amicus curiae brief in a related lawsuit that resolved the issue in the present case. We agree and remand for a determination of the appropriate fee award for such work.
All further statutory references are to the Code of Civil Procedure unless stated otherwise.
The County cross-appeals and argues that the trial court abused its discretion in awarding attorney's fees for services provided by Ramon's counsel in a previous action filed in Alameda County. We reject this argument.
I. Factual and Procedural Background
In July 2002, Ramon was one of several plaintiffs naming the County and other public entity defendants in Dubray v. City of Dublin, in Alameda County Superior Court (2005, No. 2002057128) ( Dubray). At issue was whether Government Code section 53150 et seq. authorized governmental agencies to bill individuals, who had been arrested for driving under the influence without being involved in an accident, for emergency response costs. In August 2002, the first amended complaint, which named eight individual plaintiffs and 10 separate public entity defendants, was filed in Dubray. Each plaintiff was a resident of a different county.In March 2003, a second amended complaint was filed in Dubray, which increased the number of individually named plaintiffs to 13 and public entity defendants to 23. In response to the second amended complaint, the defendants raised standing and joinder issues. In June 2003, the trial court ruled on several joinder and class action issues, and sustained the defendants' demurrer to the second amended complaint with leave to amend.
After the defendants filed demurrers to the plaintiffs' third amended complaint in Dubray, the trial court ruled that the plaintiffs' allegations of commonality were insufficient to support a plaintiff class and sustained a demurrer to the class action allegations without leave to amend. The trial court also ordered a case management conference to address procedural issues involving its jurisdiction over claims against non-Alameda County entities.
In November 2003, the trial court issued an order that stayed all proceedings against non-Alameda County entities, including the County, pending the plaintiffs' decision regarding the filing of a petition for coordination. The plaintiffs' petition for coordination was denied in February 2004. In June 2004, the trial court dismissed the Dubray action as to all non-Alameda County entities on the ground of misjoinder.
In March 2005, Ramon filed a class action complaint in Santa Clara County Superior Court against the County seeking declaratory and injunctive relief, and alleging breach of contract, money had and received, and a violation of the equal protection clause. In May 2005, the County filed a demurrer to the complaint. Following the filing of opposition by Ramon, the trial court overruled in part and sustained in part the County's demurrer.
In September 2005, Ramon filed a first amended class action complaint. After the County filed an answer, the trial court imposed a stay upon request of the parties pending the decision in California Highway Patrol v. Superior Court (Allende) (2006) 135 Cal.App.4th 488 [ 38 Cal.Rptr.3d 16]. The issue in Allende was which costs could be recovered under Government Code section 53150. The County and the League of California Cities filed an amicus curiae brief in Allende in which they argued, as the County asserted in the present case, that emergency response costs were recoverable even when there had been no incident requiring an emergency response. Ramon's attorneys filed opposition to the County's amicus curiae brief. On January 4, 2006, the reviewing court issued its decision in Allende, in which, among other things, it rejected the County's position. Ramon and the County then executed a settlement agreement in November 2006. Pursuant to this agreement, the County agreed to end its practice "of billing `emergency response' costs to persons arrested for driving under the influence of alcohol or drugs (`DUI') in situations in which there has been no `incident resulting in an appropriate emergency response' as that phrase is used in California Government Code section 53150. . . ." The County also agreed to pay "reasonable . . . attorney fees as determined by the Court," $1,000 in costs, and $1,000 to Ramon.
In February 2007, Ramon filed his motion for attorney's fees pursuant to the terms of the settlement agreement and section 1021.5. Ramon argued that reasonable attorney's fees included not only compensation for certain services rendered in Dubray, but also for those rendered in Allende.
On November 28, 2007, the trial court issued its order on Ramon's motion for attorney's fees and costs. The trial court awarded Ramon $127,799.90 for attorney's fees incurred in the present case. The trial court found that Ramon had submitted sufficient evidence of all hours reasonably spent and of the reasonableness of counsel's hourly rates. The trial court denied Ramon's request for $81,539.10 for attorney's fees incurred in opposing the County's amicus curiae efforts in Allende, reasoning that, "[t]raditionally, amici curiae have not been considered parties liable for attorney's fees. (See Connerly v. State Personnel Board[, supra,] 37 Cal.4th 1169, 1177.) [The County] was not a party to the Allende matter, and participated in the Allende appeal solely in the capacity of an amicus curiae." The trial court then awarded Ramon attorney's fees incurred in Dubray in the amount of $29,943.24.
Ramon filed a motion for reconsideration, which the trial court granted. The trial court modified the order to award Ramon $1,000 in costs. It also modified the amount for attorney's fees incurred in Dubray and awarded $44,614.20. The order also stated that the total award of fees and costs was $173,414.10, and that "[t]o the extent possible, the attorney's fees" should be paid out of the class fund as provided in the parties' settlement agreement.
II. Discussion A. Appeal
Ramon argues that the trial court erred in denying his request for attorney's fees that were incurred in opposing the County's amicus curiae brief in Allende.1. The Allende Action
In Allende, supra, 135 Cal.App.4th 488, real party in interest Allende caused a car accident while he was under the influence of alcohol. ( Allende, at p. 493.) After the California Highway Patrol (CHP) billed Allende for various expenses in responding to the accident, he brought a class action complaint, which alleged, among other things, that the CHP could not charge him for some of these services under Government Code section 53150. ( Allende, at pp. 493-494.) The trial court ruled in favor of Allende, and the CHP brought a petition for writ of mandate. ( Allende, at p. 495.) The County and the League of California Cities then sought to file an amicus curiae brief in the reviewing court, arguing that the court's analysis would not be "complete" unless it considered "what constitutes an `incident' triggering a public agency's right to seek reimbursement of costs under section 53150." ( Allende, at pp. 495-496.) The reviewing court granted the request, but rejected the County's argument that "an arrest for driving under the influence of alcohol or drugs qualifies as an `incident,' regardless of whether the driver causes an accident." ( Allende, at pp. 496, 498-502.) The Allende court then held that the trial court had erred in its determination as to which costs the CHP was entitled to recover under Government Code section 53150, and granted the peremptory writ of mandate. ( Allende, at pp. 502-509.)2. Standard of Review
The parties dispute the appropriate standard of review. Ramon argues that this court must consider the issue de novo, while the County argues that the proper standard is abuse of discretion. In Connerly, supra, 37 Cal.4th 1169, the California Supreme Court stated: "`On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law.'" ( Connerly, at p. 1175, quoting Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142 [ 118 Cal.Rptr.2d 569].)
Here, the trial court denied attorney's fees incurred in the Allende case, because the County "was not a party to the Allende matter, and participated in the Allende appeal solely in the capacity of an amicus curiae." Thus, the trial court's order was based on its resolution of a question of law. The County argues, however, that the abuse of discretion standard applies, because the facts in the present case are more complex than those in Connerly. We find no merit to this argument. The trial court's order was based on its conclusion that it had no authority to award attorney's fees. Moreover, the facts relating to both Ramon's and the County's involvement in Allende and the relationship between the litigation in Allende and the present case are undisputed. Accordingly, this court reviews the issue de novo.
3. The Merits
Section 1021.5 codifies the private attorney general doctrine of attorney's fees. This statute authorizes the trial court to award "fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest. . . ." (§ 1021.5.) At issue in the present case is whether Ramon could recover attorney's fees that were incurred in opposing the County's amicus curiae brief in the Allende action.
Section 1021.5 provides: "Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code. [¶] Attorneys' fees awarded to a public entity pursuant to this section shall not be increased or decreased by a multiplier based upon extrinsic circumstances, as discussed in Serrano v. Priest [(1977)] 20 Cal.3d 25, 49 [ 141 Cal.Rptr. 315, 569 P.2d 1303]."
We first consider whether Connerly is controlling. In Connerly, supra, 37 Cal.4th 1169, the plaintiff brought an action against six state agencies in which he challenged the constitutionality of several statutes that provided governmental preferential treatment based on race, sex, and other categories. ( Connerly, at p. 1172.) Since the state agencies either did not participate in the litigation or litigated only the issues of standing and justiciability, the defense of these statutes was then left to various advocacy groups that supported affirmative action. ( Ibid.) These groups filed amicus curiae briefs and were eventually designated real parties in interest. ( Ibid.) They then sought to remove the action to federal court, filed a motion to peremptorily challenge the trial judge, sought discovery, and filed a cross-appeal. ( Connerly, at pp. 1173-1174.) However, the advocacy groups did not prevail, and the trial court eventually ordered the state agencies and the advocacy groups to pay attorney's fees to the plaintiff under section 1021.5. ( Connerly, at p. 1174.)
At issue in Connerly was whether the advocacy groups could be considered "`opposing part[ies]'" under section 1021.5. ( Connerly, supra, 37 Cal.4th at p. 1175.) In interpreting the statute, our high court stated that "[g]enerally speaking, the opposing party liable for attorney fees under section 1021.5 has been the defendant person or agency sued, which is responsible for initiating and maintaining actions or policies that are deemed harmful to the public interest and that gave rise to the litigation." ( Connerly, at pp. 1176-1177.) Based on that standard, the court concluded the advocacy groups were not "opposing parties," because they had no responsibility for the enactment or enforcement of the statutes in question. ( Ibid.) The court also observed that "amici curiae traditionally have not been considered parties liable for attorney fees . . . [and they] perform a valuable role for the judiciary precisely because they are nonparties who often have a different perspective from the principal litigants." ( Connerly, at p. 1177, citation omitted.) The court also rejected the plaintiffs argument that the advocacy groups, as real parties in interest who actively participated in the litigation, could be considered "`opposing parties.'" ( Connerly, at pp. 1178-1182.)
Here, the County's role as an amicus curiae was not comparable to that of the advocacy groups in Connerly. In Connerly, the advocacy groups participated in the litigation "to advocate a position not out of a direct interest in the litigation but from [their] own views of what [was] legally correct and beneficial to the public interest." ( Connerly supra, 37 Cal.4th at p. 1183.) In contrast to the typical amicus curiae, here, the County was being sued in another action for "maintaining actions or policies that [were] deemed harmful to the public interest and that gave rise to the litigation." ( Connerly, at pp. 1176-1177.) Though the County was not a party in Allende, and thus did not have a direct interest in that litigation, it was nonetheless advocating the same interpretation of Government Code section 51350 that it did in the present action. In fact, the County acknowledged the benefits of its participation in the Allende action in its application for leave to file an amicus curiae brief in the trial court by noting that "negative resolution for the [CHP] could affect whether or not other entities are interested in resolving their litigation at an early stage. This could save the parties in numerous jurisdictions considerable time and money." The County and Ramon obtained a stay in the present action pending resolution of that issue in Allende. When the issue was resolved against the County in Allende, the County then entered into a settlement agreement that provided injunctive and declaratory relief to the class in the present action. Thus, Connerly is factually distinguishable from the case before us, and its holding does not preclude an award of attorney's fees to Ramon.
We turn now to an examination of how other courts have resolved the issue of whether a plaintiff may recover attorney's fees for services relating to administrative hearings and collateral litigation. In Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836 [ 216 Cal.Rptr. 649] ( Wallace), California's Department of Food and Agriculture (Department) enjoined various consumer groups from selling milk below the minimum price. ( Wallace, at p. 841.) The consumer groups then challenged the enforcement of the minimum price regulations by cross-complaint. ( Ibid.) Prior to trial, the parties entered into a settlement, which provided, among other things, that if the Department held public hearings on the issue and suspended the minimum prices by a certain date, the action would be dismissed. ( Wallace, at pp. 841-842.) The consumer groups participated in the hearings, which resulted in the Department's suspension of the minimum prices, and then sought attorney's fees pursuant to section 1021.5 for their participation in these hearings. ( Wallace, at p. 842.) The reviewing court upheld the award of attorney's fees incurred in the public hearings, because these hearings were "`intertwined inextricably'" with the lawsuit, and the legal services performed in the public hearings were "both useful and necessary to the ultimate resolution of the action, and directly contributed to that resolution." ( Wallace, at pp. 848-849.)
A similar conclusion was reached in Children's Hospital Medical Center v. Bontá (2002) 97 Cal.App.4th 740 [ 118 Cal.Rptr.2d 629] ( Bontá). In Bontá', several hospitals brought an action in federal court alleging that the former State Department of Health Services (DHS) reimbursed in-state and out-of-state hospitals at different rates in violation of federal law, and they eventually obtained the requested declaratory and injunctive relief. ( Bontá', at pp. 750-751.) The plaintiffs also sued the DHS in state court and sought damages for past underpayments. ( Bontá', at pp. 752-753.) Following trial, the state court found in favor of the plaintiffs and awarded attorney's fees under section 1021.5. ( Bontá', at pp. 755-756.) On appeal, the DHS argued that the plaintiffs were not entitled to attorney's fees incurred in the federal action. ( Bontá', at pp. 777-778.) The reviewing court held that the trial court had discretion to award such fees, stating that "[t]he ancillary judicial proceedings with which we are here concerned related very directly to the issues presented in the action in which fees were awarded, and [the plaintiffs] prevailed in those proceedings. While the federal proceedings may not have been a necessary precondition of the superior court action, they materially contributed to the resolution of the constitutional issues presented to that court. The federal rulings not only relieved the superior court of burdensome adjudicative responsibilities it would otherwise have had to undertake but also diminished the work required of counsel." ( Bontá', at p. 781.)
The County attempts to distinguish Wallace and Bontá" on the ground that those cases involved the recovery of attorney's fees by a single plaintiff, while the present case involves fees incurred for services for other plaintiffs in responding to the County's amicus curiae brief. However, we do not view this distinction as dispositive. As the court stated in Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 971-972 [ 259 Cal.Rptr. 599], "[t]he question is not whether the parties to the administrative action are the same parties involved in the lawsuit, but rather has the successful party made the requisite showing that time spent in a related administrative proceeding was reasonably expended on the litigation because it was both useful and necessary and directly contributed to the resolution of the action. [Citations.]" Here, the County inserted its controversy with Ramon into the Allende case, and thus the legal services incurred by Ramon's counsel in Allende in response to the County's amicus curiae brief were useful and necessary, and directly contributed to the settlement of the present action.
The Ninth Circuit has also reached the conclusion that a successful party may recover attorney's fees for an amicus curiae brief in a separate action under certain circumstances. In Hasbrouck v. Texaco, Inc. (9th Cir. 1989) 879 F.2d 632 ( Hasbrouck), several gasoline retailers successfully brought an antitrust action, and were awarded attorney's fees. On appeal, the defendant argued that the plaintiffs were not entitled to an enhanced fee for their unsuccessful effort on an amicus curiae brief in another case. ( Hasbrouck, at p. 638.) The reviewing court rejected the argument, stating that "it was reasonable to award fees for the amicus effort as an item of service which would have been undertaken by a reasonable and prudent lawyer to advance or protect his client's interest." ( Ibid.) In Armstrong v. Davis (9th Cir. 2003) 318 F.3d 965 ( Armstrong), the plaintiffs brought a class action against, among others, the former Department of Corrections (CDC) in which they successfully argued that California's treatment of disabled inmates violated both the Americans with Disabilities Act of 1990 ( 42 U.S.C. § 12101 et seq.) and the Rehabilitation Act of 1973 ( 29 U.S.C. § 701 et seq.). ( Armstrong, at p. 968.) The CDC filed a petition for writ of certiorari. ( Ibid.) While this petition was pending, a petition raising the same issue was filed in Yeskey v. Com. of Pa. Dept. of Corrections (3d Cir. 1997) 118 F.3d 168 ( Yeskey). ( Armstrong, at p. 968.) The Yeskey plaintiff's counsel asked the Armstrong plaintiffs' counsel to represent the Yeskey plaintiff if the United States Supreme Court granted certiorari in Yeskey rather than in Armstrong. ( Armstrong, at pp. 968-969.) After the Supreme Court granted certiorari in Yeskey, the Armstrong plaintiffs' counsel appeared on behalf of the Yeskey plaintiff and prevailed, thereby successfully protecting the Armstrong holding. ( Armstrong, at p. 969.) The district court awarded attorney's fees to the Armstrong plaintiffs for the services that their counsel performed in Yeskey. ( Armstrong, at p. 971.) The reviewing court affirmed, stating that "prudence would compel a lawyer, as part of his obligation to protect his client's interests, to accept an offer to represent a party whose interests coincided with those of his client." ( Armstrong, at pp. 971-972.) Similarly, here, Ramon's counsel's opposition to the County's amicus curiae brief was also undertaken to protect Ramon's interests.
As the County acknowledges, federal decisions regarding the private attorney general doctrine codified in statutes similar to section 1021.5 are of analogous precedential value. ( Serrano v. Unruh (1982) 32 Cal.3d 621, 639, fn. 29 [ 186 Cal.Rptr. 754, 652 P.2d 985].)
Relying on MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1 [ 54 Cal.Rptr.3d 724] ( Gorman), the County also argues that Ramon made no factual showing that he was or could be held responsible for fees incurred by his attorneys in opposing the County's amicus curiae brief in Allende. In Gorman, the appellate division of the superior court stated that "[t]ime is compensable [pursuant to section 1021.5] if it was reasonably expended and is the type of work that would be billed to a client. (See Hensley v. Eckerhart (1983) 461 U.S. 424, 434 [ 76 L.Ed.2d 40, 103 S.Ct. 1933].)" ( Gorman, at p. Supp. 12.) Here, Ramon presented the trial court with time records documenting the services performed and the number of hours spent solely on the opposition to the amicus curiae brief in Allende case. As in Gorman and Hensley v. Eckerhart, these services are the type of work for which an attorney would bill his or her client.
We conclude that the trial court had the authority to award attorney's fees incurred in opposing the amicus curiae brief in Allende to Ramon and erred in failing to exercise its discretion. We remand the matter for further proceedings to give the trial court the opportunity to exercise its discretion.
The County also argues that the trial court would have abused its discretion if it had awarded the entire amount of $81,539.10 to Ramon, because the holding in Allende benefited several other plaintiff class actions. The trial court never considered the issue of the appropriate amount for these services, and thus we do not reach the issue on appeal.
B. Cross-appeal
See footnote, ante, page 915.
1. Background
In February 2007, Ramon filed a motion for attorney's fees in which he submitted a fee statement for services provided in Dubray from January 2002 to September 2004 in the amount of $606,074. The motion was based in part on declarations by his counsel, S. Chandler Visher and Matthew Witteman. Visher's declaration, dated February 14, 2007, stated that counsels' time records in the Dubray action did not distinguish among the various defendants before September 2004. He also explained how attorney's fees were apportioned among the Dubray defendants. Since six Dubray defendants had previously settled and paid approximately $140,687, the unpaid $465,387 was apportioned among the remaining seven defendants. Visher assigned the County 18 percent of this amount, or $81,638, based on three factors: (1) the length of time the County participated in the Dubray action; (2) the County's annual cost collections for driving under the influence of alcohol or drug cases; and (3) the County's participation in discovery in the Dubray action. However, Witteman's declaration, dated February 16, 2007, stated that approximately $273,895 in attorney's fees had already been recovered in the Dubray action. Witteman also noted that other trial courts, including the Alameda Superior Court, had approved of counsels' apportionment of fees between the various Dubray defendants "with little or no modification."
The County filed an opposition brief in which it argued that the parties in the Dubray action litigated joinder, standing, and coordination issues, which the plaintiffs, including the Ramon class, lost. The County also noted that $273,895, not $140,687, in attorney's fees had been paid. In addition, the County submitted declarations by its counsel Steve Schmid and Aryn Harris. Harris's declaration stated that the County did not join in the other Dubray defendants' demurrer to the cause of action for improper collection of booking fees. It further stated that the County unsuccessfully demurred to the equal protection cause of action, successfully demurred to the breach of contract cause of action, and successfully opposed the petition for coordination. Schmid's declaration stated that, Ramon's counsel sought attorney's fees of $418,922, not $606,074, in the cases involving other Dubray defendants and projected that the County would pay nine, not 18, percent of that amount. He also asserted that Ramon's counsel manipulated the formula from case to case, focusing on the motion for attorney's fees to be paid by the City of Danville (Danville). Based on the formula used in other cases, the County argued that, assuming any fees were recoverable in the Dubray action, Ramon was entitled to no more than $25,938.
Ramon's counsel filed a reply brief and declarations by his attorneys. Witteman's declaration stated that counsel had recovered $140,687 in Dubray fees as of September 2006, and $273,895 in fees as of February 2007. He also stated that "[a]pproximately two-thirds of attorney time in the Dubray case, or $418,922 was spent on matters other than joinder or coordination." Visher's declaration explained the reason for the discrepancies between the formula used in the present case and that used in other jurisdictions. For example, the formula was initially based in part on population data rather than DUI collection data. He noted that the former method provided the County with an unfair advantage, because "[t]he annual DUI collections for San Jose are only $2,000 more than Santa Clara's $44,000. San Jose's population used in the Danville fee calculation, on the other hand, is more than 900,000 versus less than 100,000 for Santa Clara." Once the DUI collection data was available, this method was used in all settlements after the Danville action. Visher also stated that a discounted lodestar of $418,922 was used in the Danville action, because the parties agreed to discount the fees as part of their settlement agreement. According to Visher, the County "refused to agree to anything approaching a reasonable fee," and thus, counsel sought their "full fee."
On May 17, 2007, the trial court held a hearing on the motion for attorney's fees. Harris stated that the County was not objecting to either the hourly rates nor the time spent, but was objecting to the formula that was used for the Dubray action. Harris also argued that the County was the prevailing party in Dubray, and thus Ramon was not entitled to any attorney's fees. After the trial court observed that Ramon's counsel had been compensated by various public entities with whom there was a settlement, and indicated that counsel was asking it to speculate in terms of assigning a substantial portion of the Dubray fees to the County, Witteman summarized the history of the case and the formula used to apportion the fees. Harris then noted that Ramon's counsel had "arbitrarily said that two-thirds of the time was spent on issues that are the benefit of this case. I think that that's highly speculative, and they didn't put it in the motion or moving papers, and they didn't ask for that. They wanted a whole $660,000." The matter was continued until July 9, 2007.
During the second hearing on attorney's fees, Ramon's counsel stated that he had developed a supplemental declaration regarding the Dubray fees. The trial court asked if this declaration discussed separate issues of work and mentioned joinder, class action, certification, and standing. After counsel summarized its contents, the trial court continued the matter to allow Ramon's attorneys to file the supplemental declaration and the County to file responsive papers.
On July 16, 2007, Witteman filed a supplemental declaration. This declaration stated that counsel had redacted the time records in the following manner: "1) time records were reviewed first to identify and redact any time entries which related directly or solely to defendants in the Dubray case other than Santa Clara County. This resulted in a reduction of the overall lodestar in the Dubray case by $110,889; 2) the records were next reviewed to identify all time entries which related solely or partially to litigation or procedural issues such as: defendant class certification, joinder, standing or coordination. All time entries which were related only to these procedural issues were redacted and reduce the Dubray lodestar by an additional lodestar $73,278; 3) the records were then reviewed to identify mixed time entries containing tasks relating both to procedural and substantive issues. If a time entry was determined to be mixed, the time assigned to procedural tasks was removed from the time sheet and the lodestar was reduced accordingly. This step further reduced the Dubray Lodestar by $83,065. All of these reductions left a remaining lodestar of $338,842 at the current rates of plaintiff's counsel." The declaration also stated that Ramon's counsel had recovered $273,895 in attorney's fees from other Dubray defendants, and $110,889 of this amount included compensation for work performed solely for these other defendants. Thus, the balance of the Dubray lodestar was $175,836 ($338,842 — $163,006 = $175,836). Ramon then requested that "$81,638 of the remaining lodestar be apportioned to Santa Clara County as the County was directly responsible for the bulk of the time incurred in the Dubray case."
The County filed opposition to the supplemental declaration in which it argued that Ramon was not the successful party in Dubray. The County pointed out that even though Ramon had reduced the lodestar from $606,074 to $338,842, he was still seeking $81,638 from the County. The County argued that Ramon's evidence did not allow for an evaluation of his claim that $110,889 was spent on individual defendant issues, and he failed to establish which time was "reasonable and necessary" to the present case. The County also challenged Ramon's claim that only 30 percent of their time was spent on procedural issues. The County then suggested three alternative methods of computing the attorney fee award. With respect to the Dubray case, the trial court awarded attorney's fees in the amount of "$29,943.24 which is the average between $31,650.48 (based on [Ramon's] allocation of 18% of the County's responsibility of lodestar of $175,836) and $28,236 (based on the County's suggestion of dividing `collective lodestar' of $338,842 by 12 Dubray defendants)." Ramon then filed a motion for reconsideration in which it argued, among other things, that the trial court had erred in its application of the Ramon formula for calculation of the County's share of the Dubray lodestar. The County filed opposition to the motion for reconsideration in which it argued that Ramon's "attorneys submitted incomplete records and altered their approach numerous times . . . [and] each proposal-and there were several — had its obvious problems." However, the County also submitted that the trial court's "approach was fair and reasonable and within its sound discretion."
The trial court granted the motion for reconsideration. Using the same approach, it modified the amount for attorney's fees incurred in Dubray to "$44,614.20, which is the average between $60,991.56 (based on [Ramon's] allocation of 18% of the County's responsibility of collective lodestar of $338,842) and $28,236.83 (based on the County's suggestion of dividing collective lodestar of $338,842 by 12 Dubray defendants)."
2. Legal Analysis
In order to determine the amount of attorney's fees awarded under section 1021.5, the trial court begins with the lodestar, which "is produced by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate. Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative `multiplier' to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented." ( Lealao v. Benefit California, Inc. (2000) 82 Cal.App.4th 19, 26.) A successful litigant who seeks to recover attorney's fees for pre-complaint litigation must also show that these services were "both useful and necessary to the ultimate resolution of the action." (See Wallace, supra, 170 Cal.App.3d at pp. 848-849.) Generally, "the litigant will, as a practical matter, bear a heavier burden of demonstrating how that activity contributed to the success of the litigation." ( Hogar Dulce Hogar v. Community Development Com. of City of Escondido (2007) 157 Cal.App.4th 1358, 1370.)
This court applies the abuse of discretion standard in reviewing an attorney's fee award under section 1021.5. ( Connerly, supra, 37 Cal.4th at p. 1175.) Thus, the trial court's determination "`will not be disturbed unless the appellate court is convinced that it is clearly wrong.'" ( Serrano v. Priest (1977) 20 Cal.3d 25, 49, quoting Harrison v. Bloomfield Building Industries, Inc. (6th Cir. 1970) 435 F.2d 1192, 1196.)
We first note that the County stated in its opposition to Ramon's motion for reconsideration that the trial court's "approach was fair and reasonable and within its sound discretion" in awarding at least $29,943.24. However, the County now contends that the trial court abused its discretion in awarding any attorney's fees incurred for services in the Dubray action.
The County first argues that the Ramon class received no benefit from its attorneys' efforts to include the present action in the Dubray action by joinder or coordination. However, Ramon submitted time sheets that did not include time associated with defendant class certification, joinder, standing, or coordination in its time records. Time spent exclusively as to other defendants in the Dubray action was also not included. Thus, Ramon calculated that the total amount of the fees was $338,842, which was the figure used by the trial court in averaging the amounts proposed by the parties.
The County next claims that Ramon failed to present competent evidence that the work in Dubray was useful in the present action, and that Ramon's counsel could not ethically bill him for such services. Ramon submitted time sheets that documented legal research, investigation, preparation of government claims, contacts with class representatives, preparation of complaints, response to demurrers, and discovery. He also submitted declarations by his counsel that "this adjusted lodestar amount was both necessary, useful and directly impacted on this litigation and resolved numerous substantive legal issues contributing directly to resolution of the present action." Witteman's declaration further stated that both the Dubray case and the present case "involved the same parties, claims issues and facts," and pointed out that the County "actively litigated legal issues regarding plaintiff class allegations . . ., injunctive and declaratory relief, government claims, administrative exhaustion, money had and received, mandatory duties, local ordinances, . . . constitutional claims, and others." Witteman's declaration then noted that "nearly all" of these issues "were decided favorably for plaintiffs and those decisions being fully litigated would constitute issue preclusion in any subsequent action." Thus, there was competent evidence to support the trial court's finding that the fees incurred in Dubray were reasonably necessary to the outcome in the present case.
The County argues, however, that Ramon included fees incurred in Dubray after the trial court dismissed the Ramon class from the Dubray action on June 9, 2004. Where a party has failed to object in the trial court, an appellate court will not consider the issue on appeal. ( Bontá, supra, 97 Cal.App.4th at p. 776.) Here, the County conceded in its opposition to Witteman's supplemental declaration that it did not "go line-by-line to determine whether or not every procedural matter has been excluded from the fee application", thus denying Ramon the opportunity to refute the County's present claim. Accordingly, the issue has been waived. Moreover, even assuming that the issue has been preserved for our consideration, the County has failed to show prejudice, because the trial court did not award the total amount of attorney's fees that were requested by Ramon for the services in the Dubray action.
In its reply brief, the County claims that the "time sheets extensively reference work unrelated to a favorable outcome and vague entries that cannot be confirmed as related to a favorable outcome." They point to portions of the time sheets that refer to services relating to "venue issues . . ., case management conference appearances and related activity . . ., research and activity pertaining to liability of collection agencies . . ., activity aimed at developing additional plaintiffs, additional defendants, and new clients . . ., activity pertaining to joinder issues . . ., activity in response to Santa Clara County's motion for dismissal for improper joinder . . ., work related to claims against the City of Dublin and the City of Ukiah . . ., [and] activity pertaining to coordination issues. . . ." First, when an issue is raised for the first time in a reply brief, an appellate court need not consider the issue. ( Bontá, supra, 97 Cal.App.4th 740, 777.) Second, the County did not make these objections in the trial court, and thus waived them. ( Bontá, at p. 776.) Third, even assuming that the issue has not been waived, as previously stated, the County has failed to show prejudice.
The County also claims that Ramon initially allocated approximately $188,000 in fees to joinder, class certification, and coordination issues, and then allocated $73,278 to such issues. Thus, the County suggests that the adjusted attorney's fee statement "represents nothing more than a guess." First, the County has misunderstood Witteman's supplemental declaration. The declaration stated that the "time entries which were related only to these procedural issues were redacted and reduce the Dubray lodestar by an additional lodestar $73,278," and where there were "mixed time entries containing tasks relating both to procedural and substantive issues, . . . the time assigned to procedural tasks was removed from the time sheet and the lodestar was reduced . . . by $83,065." Thus, there was a drop of approximately $32,000 for services relating to joinder, class certification, and coordination issues. Since the trial court could reasonably conclude that Witteman's supplemental declaration was a more reliable determination of the services to be excluded from the Dubray lodestar, the County has failed to demonstrate that the trial court abused its discretion.
III. Disposition
The order is reversed. We remand the matter for further proceedings to give the trial court the opportunity to exercise its discretion to award attorney's fees incurred in opposing the amicus curiae brief in Allende to Ramon. Ramon is entitled to costs on appeal and cross-appeal.McAdams, J., and Duffy, J., concurred.