LAFFITTE v. ROBERT HALF INTERNATIONAL (BRENNAN)

Appellant’s Reply to Answer to Petition for Review

Cal.January 22, 2015

NO. 8222996 Appellate No. B249253 IN THE SUPREME COURT OF CALIFORNIA MARK LAFFITTE,etal., Plaintiffs and Respondents, SUPREME COUR? vs. FILED ROBERT HALF INTERNATIONAL,INC.,et al., JAN 99 705 Defendants and Respondents, a fe P Frank A. McGuire Clers Deputy DAVID BRENNAN, Plaintiffand Appellant. After a Decision of the Court of Appeal, Second Appellate District, Div. Seven, No. B249253; Los Angeles Superior Court, Stanley Mosk Courthouse, Case No. BC 321317 [related to BC 455499 and BC 377930], Hon. Mary H.Strobel, Judge REPLY TO ANSWERTO PETITION FOR REVIEW LAWRENCEW. SCHONBRUN (CSBNo. 054519) LAW OFFICE OF LAWRENCE W. SCHONBRUN 86 Eucalyptus Road Berkeley, CA 94705 Telephone: (510) 547-8070 Attorneyfor PlaintiffClass Member/Objector-Appellant and Petitioner David Brennan NO. 8222996 Appellate No. B249253 IN THE SUPREME COURT OF CALIFORNIA MARK LAFFITTE,et ai,, Plaintiffs and Respondents, VS. ROBERT HALF INTERNATIONAL,INC., et al., Defendants and Respondents, DAVID BRENNAN, Plaintiffand Appellant. After a Decision of the Court of Appeal, Second Appellate District, Div. Seven, No. B249253; Los Angeles Superior Court, Stanley Mosk Courthouse, Case No. BC 321317 [related to BC 455499 and BC 377930], Hon. Mary H. Strobel, Judge REPLY TO ANSWERTO PETITION FOR REVIEW LAWRENCE W. SCHONBRUN (CSB No. 054519) LAW OFFICE OF LAWRENCE W. SCHONBRUN 86 Eucalyptus Road Berkeley, CA 94705 Telephone: (510) 547-8070 Attorneyfor PlaintiffClass Member/Objector-Appellant and Petitioner David Brennan TABLE OF CONTENTS Page TABLE OF AUTHORITIES.......ccccccecscceeseeecenseceeeeeeeseceeeseseeeseneseasesseeaeseeses ii INTRODUCTION.........ccccccssceeseseeseeesesseeeeaeecsseeasesessaeseesssesesseeseseeesaseaseneeseees 1 DISCUSSION......cccccccessssecssresseceeceaceeeeanecsareceaeessseeeesesseeessscesesesserscseesseseusegsas 2 I. Serrano III's Instructions are Not Limited to Awards under the Private Attorney General Theory «0.0.0.0... eeseeceseeeee 4 A. This is Why Class Counsel Are Wrong.............c.eee 4 B. The CasesIdentified by Petitioner Are All Relevant to Appellate Court Interpretations Of Serrano TD. ccccccseccccceessceessecesnceeesseceesseaaeeeesesaeeesrasseeees 8 CONCLUSION.......ccccccsssseccssecsesectecserecssaeecesneecnecesseveseseseeessesessensesesseeeeaeeeey 18 Certificate of Compliance .........seeeieeeteteeeeteeeenseneeteerteeteerereee POSE = | Certificate Of ServiCe.........cccceeeecesceeeeceseecesseeesseseseesseetsasssseesesenseeeneees Post - 2 TABLE OF AUTHORITIES State Cases Page Apple Computer, Inc. v. The Superior Court of Los Angeles County,et al., 126 Cal.App.4th 1253 [24 Cal.Rptr.3d 818] (2d App. Dist. Feb. 17, 2005)...eeeeseeseeeeneeseeeees 16 Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Market, Inc., 127 Cal.App.4th 387 [25 Cal.Rptr.3d 514] (2d App. Dist. Mar. 7, 2005)... eeseescesceseeeceessseesessecssceseeecseecssseeeeseenaes 17 Dunk v. Ford Motor Co., et al., 48 Cal.App.4th 1794 [56 Cal.Rptr.2d 483] (4th App. Dist. Aug. 30, 1996)...eee 8, 9, 10 Jutkowitz v. Bourns, Inc., et al., 118 Cal.App.3d 102 [173 Cal.Rptr. 248] (2d App. Dist. Apr. 16, 1981)...eeeeeeeeeeeees 13, 14 Laffitte v. Robert HalfInt'l, Inc., et al.; David Brennan, Appellant, No. B249253, 2014 Cal.App. LEXIS 1059 (2d App. Dist., Div. 7, Oct. 29, 2014)...ecceseceseeerseeeseeserseerseeseseespassim Lealao v. Beneficial California, Inc., 82 Cal. App. 4th 19 [97 Cal.Rptr.2d 797] (1st App. Dist. July 10, 2000)...eeeeeeeeepassim Mandel v. Hodges, 54 Cal.App.3d 596 [127 Cal.Rptr. 244] (1st App. Dist., Div. 4, Jan. 21, 1976)...eee 2 Salton Bay Marina, Inc., et al. v. Imperial Irrigation Dist., 172 Cal.App.3d 914 [218 Cal.Rptr. 839] (4th App. Dist. Sept. 30, 1985)oescsseesesesseeseesesscseceseaseesseeeeeeeteeses 9 Serrano v. Priest (Serrano III), 20 Cal.3d 25, [141 Cal.Rptr. 315] (Oct. 4, 1977)eeeeeesseesessstecesaseessesseeeseeseees passim The People ex rel. Department ofTransportation v. Yuki, et al., 31 Cal.App.4th 1754 [37 Cal.Rptr.2d 616] (6th App. Dist. Jan. 6, 1995) oooeeeeesesscesseceseceeseessaeensasesesesseessenesenseeeeeeenees 9 li TABLE OF AUTHORITIES State Cases Page Wershba v. Apple Computer, Inc., 91 Cal.App.4th 224 [110 Cal.Rptr.2d 145] (6th App. Dist. July 31, 2001)...eee 16, 17 Federal Cases City ofDetroit v. Grinnell Corp., et al., 495 F.2d 448 (2d Cir. Mar. 13, 1974)... cceeeeesessecececesseeceeeeeeseeessaeeeenees 3,5 Fraley v. Facebook, Inc., No. C 11-1726 RS, 2013 U.S. Dist. LEXIS 124023 (N.D.Cal., San Francisco Div., Aug. 26, 2013)...eeeeeesce eee eeseeteeeeeneeees 8 In re Apple iPhone/iPod Warranty Litig., No. C 10-1610 RS, 2014 U.S. Dist. LEXIS 52050 (N.D.Cal., San Francisco Div., Apr. 14, 2014)...ceceeeseeseeeeseseeaeeneees 8 Lindy Bros. Builders, Inc. ofPhila. v. American Radiator & Standard Sanitary Corp., et al., 487 F.2d 161 (3d Cir. Oct. 31, 1973) ccceecccececssecceseceseneeereceseceessaeceseecsserseesseeeecesaeseneeeneens 5 Statutes, Codes and Rules Code of Civil Procedure (CCP), § 1021.5 woeceescceseeesesseeseeeerecesaeeeseeeaes 2 Texts, Treatises, and Other BLACK'S LAW DICTIONARY(4th ed. 1971)...cece ee eseeeeeceseseeeeeeeesneeeesenseneees 18 ill INTRODUCTION Petitioner, Plaintiff Class Member/Objector and Appellant David Brennan, haspetitioned this Court to rule on the conflict surrounding the instructions this Court provided to lower courts in its seminal decision, Serrano v. Priest (Serrano II), 20 Cal.3d 25 [141 Cal.Rptr. 315] (Oct. 4, 1977). Petitioner's position is that the published decision, Laffitte v. Robert HalfInt'l, Inc., et al.; David Brennan, Appellant, No. B249253, 2014 Cal.App. LEXIS 1059 (2d App. Dist., Div. 7, Oct. 29, 2014) (hereinafter the "Laffitte decision"), has added to the conflict already existing concerning this Court's mandate in Serrano IIT regarding the judicial calculation of reasonable attorneys' fees. Class Counsel for Respondents argue that (1) there is no conflict among appellate courts about the meaning of Serrano III, and (2) the Laffitte decision is consistent with Serrano JIand other courts of appeal decisions that Class Counsel deem relevant. Before explaining why Class Counsel's analysis is incorrect, an introduction to this issue is important becauseit may explain why they misunderstand what the current California jurisprudenceis regarding judicial awards of reasonable attorneys' fees. Whentrial courts are asked byplaintiffs' lawyers to award a reasonable attorneys' fee, they must satisfy two conditions: The court must determine whether, under the law, the attorneys are entitled to a fee award. Oncethe court has established entitlement, it must calculate the fee in accordance with methods approvedbythis Court. In other words, the first question is, are the attorneys entitled to an award of fees? The second question is, if so, how does a court calculate the amount of the award? On the issue ofan attorney's eligibility to an award of a reasonable attorney's fee, California law recognizes three exceptions to what has been called the American rule ~ which is that each side bears his or her ownattorney's fees. The exceptions are the equitable or commonfund doctrine, the substantial benefit doctrine (a derivative of the commonfund doctrine), and the private attorney general theory (codified in California at CCP § 1021.5). (See Mandel v. Hodges, 54 Cal.App.3d 596, 619-21 [127 Cal.Rptr. 244] (1st App. Dist., Div. 4, Jan. 21, 1976).) DISCUSSION It is Petitioner's position that with respect to each ofthe doctrinal exceptions, including the common fund doctrine, this Court ruled in Serrano LIT: Fundamentalto its [the trial court's] determination — and properly so — was a careful compilation of the time spent and reasonable hourly compensation of each attorney... involved in the presentation ofthe case. "The starting point of every fee award ... must be a calculation of the attorney's services in terms of the time he has expended on the case. Anchoring the analysis to this concept is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts." Serrano III, supra, 20 Cal.3d at 48 and 49 n.23, respectively, citing City ofDetroit v. Grinnell, 495 F.2d 448, 470 (2d Cir. Mar. 13, 1974 (emphasis added). Class Counsel's argumentis that the above-quoted language in Serrano III only applies when the court awards reasonable attorneys' fees underthe private attorney general exception: Thus, the Court madeits statement concerning the "starting point" for fee awards in the context of analyzing the amount of the award pursuantto theprivate attorney generaltheory. (Class Plaintiffs and Respondent's Answerto Petition for Review ("APR") at 20), and that the instruction does not apply to fees calculated under the common fund doctrine. In other words, they argue that since the Laffitte award was requested under the common fund doctrine, Serrano III's "fundamentalto....", "the starting point....", and "anchoring the....". do not apply. In their Answerto the Petition for Review, Class Counsel also claim that none of the cases relied upon by Petitioner demonstrate that there is a conflict among various appellate courts. They argue that the cases cited in the Petition are not relevant because either none of the cases involve a court determination that a common fund was created, or they claim that the cases are otherwise inapposite or dicta. SERRANO III'S INSTRUCTIONS ARE NOT LIMITED TO AWARDS UNDER THE PRIVATE ATTORNEY GENERAL THEORY A. This is Why Class Counsel Are Wrong. 1. The language in Serrano: "The starting point of every fee award ... must be a calculation of the attorney's services in terms of the time he has expendedonthe case." (Serrano ITT, supra, 20 Cal.3d at 49 n.23 (emphasis added)), says "every fee award." The languageis all inclusive. It does not carve out fees awarded under the commonfund doctrine. Class Counsel contend that "every" nonetheless applies only to fees awarded underthe private attorney general theory. Petitioner believes that, as numerousappellate courts have held, Serrano III appliesto three doctrinal exceptions to the American Rule. 2. Nocourt has ever held, and Class Counselcite to no legal support for their contention (APRat 20) that Serrano's "fundamental to....", "the starting point....", and "anchoringthe...." instructions apply only to the private attorney general theory. They simplystateit without any jurisprudential support. 3. Class Counsel present pages and pages of argument and case citations (APR 9-12) that are irrelevant to the question raised in Objector's Petition for Review. Theissue is not about the entitlement to an award of reasonable attorneys' fees, but rather, under the common fund doctrine in light of Serrano's instruction, how is the fee to be calculated by the court once entitlement has been determined. 4. Perhaps the most important fact demonstrating that Class Counsel's argumentis baselessis that the SerranoIII decisionrelies upon two federal cases, City ofDetroit v. Grinnell Corp., et al., supra, (an antitrust class action), and Lindy Bros. Builders, Inc. ofPhila. v. American Radiator & Standard Sanitary Corp., et al., 487 F.2d 161 (3d Cir. Oct. 31, 1973), which indeed award reasonable attorneys’ fees under the common fund doctrine. In each, the court ruled that the fee to be awarded from a settlement fund (15% of the $10 million settlement recovery was awardedbythe district court in Grinnell) must be calculated under the lodestar method, and in each case, the appellate court decision specifically rejected the percentage-of-the- recovery method!: Because wefeel that this fee was excessive and displayed too much reliance uponthe contingent fee syndrome... [T]he District Court's defacto reliance on the contingent fee approach, an approach which, they submit, is impermissible in this type ofcase. (Grinnell, supra, 495 F.2d at 468), ! Class Counselstate in their Answerto the Petition for Review that "no California appellate court has ever held that a fee award based on a percentage of the fund is inappropriate in a true common fundcase." (APR at 1.) But, the most important point is that the Supreme Court in Serrano ITI did just that, relying on federal case law. as a basis to calculate the amountofthe fee to be paid from a common fund. If the Serrano II] court meantto apply the "starting point," "fundamental to," and "anchoring" language only to fees sought under the private attorney general exception, it would not have selected two equitable/commonfund cases to support an argumentthat the Serrano IIT instructions only apply to fees sought underthe private attorney general theory.2 Class Counsel ignore these cases in their Answer. Moreover, the language of Serrano IIT: "(Olnce it is recognized that the court's role in equity is to provide just compensation for the attorney...." (Serrano ITI, supra, 20 Cal.3d at 49 n.23, citing Grinnell, supra, 495 F.2d at 470), further underminestheir argument. This court specifically explains that the starting point language applies when the court is applying equitable rules, which the commonfunddoctrine clearly employs. 5. The distinction that Class Counsel are attempting to make, saying that in private attorneys' general cases the starting point must be the lodestar but that with regard to the common fund exception the percentage amountis permissible, makes no sense. SerranoIII's instruction is based upon public policy grounds. 2 Thefact that Serrano III is not itself a common fundcaseis not significant. In stating "in every case" and citing to federal common fund cases, Serrano III clearly meant to include fees awarded from common funds. (a) Objectivity. "Anchoring the analysis to this conceptis the only way of approaching the problem that can claim objectivity..." Serrano ITI, 20 Cal.3d at 49 n.23 (citation omitted; emphasis added). (b) Prestige of the courts and respect for attorneys. "[O]bjectivity, a claim which is obviously vital to the prestige of the bar and the courts." Serrano IT, 20 Cal.3d at 49 n.23 (citation omitted; emphasis added). Class Counsel fail to explain why these rationales would not apply to the commonfund and substantial benefits doctrine as well. Since there is no reason whythese rationales would not also apply to the commonfund doctrine and substantial benefit doctrine,it makes nosenseto limit Serrano I/I to private attorneys’ general cases, and Serrano III did not do so. It did just the opposite! 6. Two recent federal court decisions support Petitioner's argumentregarding the conflicting views of the meaning of SerranoIII. Indeed, some post-Serrano LI appellate opinions have questioned the continued availability of the percentage of fund method. See e.g. Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794, 1809, 56 Cal. Rptr. 2d 483 (1996) ("The award of attorney fees based on a percentage of a'commonfund' recovery is of questionable validity in California."). In re Apple iPhone/iPod Warranty Litig., No. C 10-1610 RS, 2014 U.S. Dist. LEXIS 52050 (N.D. Cal., San Francisco Div., Apr. 14, 2014), at *6. In opposing the fee request, Facebookinsists that applicable California law requires that the fee award be calculated through the lodestar approach, and not as a percentage ofthe recovery. Fraley v. Facebook, Inc., No. C 11-1726 RS, 2013 U.S. Dist. LEXIS 124023 (N.D.Cal., San Francisco Div., Aug. 26, 2013), at *5. Class Counselignore these cases in their Answer. B. The Cases Identified by Petitioner Are All Relevantto Appellate Court Interpretations of Serrano IT. Eachofthe cases that Class Counsel say supports their interpretation that there is no conflict in courts of appeal decisions in fact supports Petitioner's argument that such a conflict exists. Class Counsel's Answerto the Petition for Review does not discuss any of the points raised in the Petition as to why the cases relied on in Laffitte are incorrect. (a) Dunk vy. Ford Motor Co., et al., 48 Cal.App.4th 1794 [56 Cal.Rptr.2d 483] (4th App. Dist. Aug. 30, 1996), says on this point regarding Serrano III: Later cases have cast doubt on the use of the percentage methodto determine attorney fees in California class actions. The award of attorney fees based on a percentage of a "common fund" recovery is of questionable validity in California.... Ud., 48 Cal.App.4th at 1809), citing The People ex rel. Department of Transportation v. Yuki, et al., 31 Cal.App.4th 1754 [37 Cal.Rptr.2d 616] (6th App. Dist. Jan. 6, 1995), and Salton Bay Marina, Inc., etal. v. Imperial Irrigation Dist., 172 Cal.App.3d 914 [218 Cal.Rptr. 839] (4th App. Dist. Sept. 30, 1985). In Dunk, the distinction the court identified was whetheror notthe litigation was a class action "in California class actions," not whether or not the fee was being sought undertheprivate attorney general doctrine. As Class Counsel acknowledge, Laffitte is a class action. Dunk made nodistinction between commonfund, substantial benefit, and private attorney general theory. Dunk directly addresses the issue of fee awards using the percentage-of-the-fund approachbecauseplaintiffs’ counsel sought fees under the common fund exception. $1 million attorney fees ... were only a tiny percentage of the potential settlement value of over $26 million. This argument suffers from two flaws: (1) The award ofattorney fees based on a percentage of a "common fund" recovery is of questionable validity in California, and (2) even if it is valid, the true value of the fund mustbe easily calculated. (Dunk, supra, 48 Cal.App.4th at 1809 (emphasis added).) Class Counsel claim Dunk did not involve a common fund; however, plaintiffs’ counsel soughtfees initially under commonfundprinciples, and the court ruled on that request. Interestingly enough, and another argument supporting the necessity of this Court to clarify these issues, is the reference in Dunk to Serrano III: In Serrano v. Priest (1977) 20 Cal.3d 25 [141 Cal.Rptr. 315, 569 P.2d 1030], the Supreme Court acknowledged the use of a percentage method in common fund cases, but concluded there was no evidence the parties intended the attorney fees would be paid out of any common fundthat had been created, so the doctrine was inapplicable. Jd. at pp. 37-38.) (Dunk, supra, 48 Cal.App.4th at 1809.) Neither pages 37 nor 38 of SerranoITI discusses the calculation of a reasonable attorneys' fee. Rather, the discussion on those pages concernsentitlementto fees, not how the amountofthe fee should be determined. Percentage-of-the- fund and lodestar/multiplier approaches are not mentioned. Dunk does not support Class Counsel's interpretation ofSerrano IIT because Dunkspecifically holdsthatit is the class action distinction thatis important, rather than the private attorney general distinction. (b) Lealao v. Beneficial California, Inc., 82 Cal. App. 4th 19 [97 Cal. Rptr. 2d 797] (1st App. Dist. July 10, 2000). Class Counsel argue that Lealao wasnot a commonfund fee award (APRat 13), and that plaintiffs’ counsel in Lealao could not recover fees under the common fund doctrine because they had not created a commonfund. But in Lealao, plaintiffs' attorneys sought a fee award under common fundprinciples. The Lealao court denied that request for two reasons: thefirst being that courts are not permitted to award fees based on a pure percentage, and, second, that no commonfund had beencreated. Lealao doesstate: 10 "Percentage fees havetraditionally been allowed in ... common fund cases." (APR at 12) arguably because Serrano III was a seminaldecision that changed what had been "traditionally" done. Supportingthis interpretation, the Lealao court included the following observation: Prior to 1977, when the California Supreme Court decided SerranoIII, supra, 20 Cal.3d 25, California courts could award a percentage fee in a commonfundcase. Lealao, supra, 82 Cal. App. 4th at 27. Lealao confronts the issue of the common fund doctrine because the attorneys seeking fees initially asked that the fee be awarded according to commonfund principles. The court had to address that issue: Theplaintiffs’ counsel moved for reasonable attorney fees, resting not on statute but on the inherent equitable powers of the court. In support of their claim theyrelied on three theories: the common fund,substantial benefit, and private attorney general exceptionsto the general rule disfavoring fees. (at 38; footnote omitted; emphasis added) Thoughthe court affirmed the award of fees under the private attorney general theory (later codified in Code Civ. Proc., § 1021.5), it affirmed the denial of fees on either the common fund or substantial benefit theories. (at 38) The reason the fee analysis must be "anchored" to the time spent on the case and a reasonable hourly 1] rate, the court declared, is that "'this conceptis the only way of approaching the problem that can claim objectivity, a claim whichis obviously vital to the prestige of the bar and the courts." [Serrano IIL, supra, 20 Cal. 3d at p. 48, fn. 23.] This statement, which arguably renders it questionable whether a pure percentage fee can be awarded even in a conventional common fund case (see Dunk v. Ford Motor Co., supra, 48 Cal. App. 4th atp. 1809), certainly precludes such an award in a case such asthis. (at 39; emphasis added) [T]he California Supreme Court has rejected pure percentage fees.... (at 36) Lealao, supra, 82 Cal.App.4th at 38, 39, and 36. The statement in Class Counsel's Answerto the Petition for Review, "Despite its primacy, the lodestar method is not necessarily utilized in common fund cases" (APRat 14, citing Lealao at 27) appears to be an inarticulate reference: (a) because the entire paragraph deals with entitlement to fees, not with the calculation ofa reasonable attorneys' fee, and (b) because Lealao supports Serrano III's holding regarding the primacy ofthe lodestar approach (common fund or not). ("The reason the fee analysis must be ‘anchored' to the time spent on the case...." (Lealaoat 39).) Contrary to Laffitte, Lealao supports Serrano IIT in that the lodestar approach mustbe the primary focusofa trial court's award of reasonable attorneys' fees after that basic calculation: [A] trial court has discretion to adjust the basic lodestar through the application of a positive or 12 negative multiplier where necessary to ensure that the fee awardedis within the range of fees freely negotiated in the legal marketplace in comparable ’ litigation. Lealao, supra, 82 Cal.App.4th at 49-50 (emphasis added). Lealao disputes Jutkowitz v. Bourns, Inc., et al., 118 Cal.App.3d 102 [173 Cal.Rptr. 248] (2d App. Dist. Apr. 16, 1981), therefore clearly contradicting Class Counsel's argumentthat there is no contradiction in appellate court decisions on SerranoIII's instructions. Thetrial court here appears to have agreed with respondent that Jutkowitz and Dunk, whichrelied upon SerranoIII, barred any adjustmentofthe lodestar by evaluating the fee award as a percentage of the class recovery. We do not share this view of the cases. The fees disapproved in Jutkowitz and Dunk could not be squared with Serrano III because they were anchored in a percentage of the recovery rather than a lodestar.3 Lealao, supra, 82 Cal. App. 4th at 44-45 (emphasis added). (c) Jutkowitz v. Bourns, Inc., et al., 118 Cal.App.3d 102 [173 Cal.Rptr. 248 (2d App. Dist., Div. 2, Apr. 16, 1981). Class Counsel arguethat this is not a common fund case, and claim that Jutkowitz only rejected contingent fee principles where no commonfundexists. 3 Class Counsel's claim that Laffitte "presents no conflict with other California authorities regarding the common fund theory" (APRat 2) is simply incorrect. 13 This is an incorrect characterization ofJutkowitz. Counsel in Jutkowitz soughtfees initially under a numberoftheories, including common fundprinciples. (Jutkowitz, 118 Cal.App.3d at 109 ("Proceeding now from plaintiff's claim for equitable compensation from the shareholders...." at 111).) In rejecting that claim, the Jutkowitz court explained why the fee request was being denied. Significantly, in none of the "commonfund"cases, whetherclass actions or nonclass actions... is there any suggestion that the size ofthefund controls the determination ofwhat is adequate compensation. It appears to us that plaintiff's argument is an attempt to engraft a "contingent fee" concept on to the equitable common fund doctrine. In our opinion, the clear thrust of the holding in Serrano, supra, and the cases upon whichthat holdingrelied, is a rejection of any "contingent fee" principle in cases involving equitable compensation for lawyers in class actions or other types of representativesuits. Jutkowitz v. Bourns, Inc., et al., 118 Cal.App.3d 102, 110 [173 Cal.Rptr. 248 (2d App. Dist., Div. 2, Apr. 16, 1981). (d) Consumer Privacy Cases, 175 Cal.App.4th 545, 556-57 [96 Cal.Rptr.3d 127] (1st App. Dist., Div. 5, June 30, 2009). Consumer Privacy Cases, cited by Class Counsel (see APR,p.iii), supports Petitioner's position that: ""'T]he primary method for establishing the amount of 'reasonable' attorney fees is the lodestar method....""" 14 (Consumer Privacy Cases, supra, 175 Cal.App.4th at 556 (citations omitted).) As explained in Objector's Petition for Review (at pages 23-24), the language "irrespective of the method ofcalculation"is a misunderstanding of Chavez's references to method. (e) Chavez v. Netflix, Inc., 162 Cal.App.4th 43 [75 Cal.Rptr.3d 413] (1st App. Dist., Div. 1, Apr. 21, 2008). Chavez does contain the quote: "Empirical studies show that, regardless whether the percentage method or the lodestar methodis used, fee awardsin class actions average around one-third of the recovery." Td. at 66 n.11. As mentioned in Objector's Petition for Review (at page 26), Chavez supports the primacyofthe lodestar approach, and the reference to these empirical studies is based on federal fee jurisprudence (although the federal reference was left out ofthe Laffitte decision "[Citation]"; see Petition at 26): "Empirical studies show ... fee awardsin class actions average around one-third of the recovery." (Shaw v. Toshiba America Information Systems, Inc. (E.D.Tex. 2000) 91 F. Supp. 2d 942, 972.) Chavez v. Netflix, supra, 162 Cal.App.4th at 66 n.11 (emphasis added). 15 (f) Apple Computer, Inc. v. The Superior Court of Los Angeles County, et al., 126 Cal.App.4th 1253 [24 Cal.Rptr.3d 818] (2d App.Dist. Feb. 17, 2005). ("[A]ttorneys' fees awarded under the common fund doctrine are based on a 'percentage-of-the- benefit analysis....") Id. at 1270; APR at 12. As referencedin the Petition for Review (at page 24), Apple Computer did not award a reasonable attorneys'feeatall. Thusly, the quote in Apple Computer can only be described as an impossible use of language. And although attorney fees awarded underthe common fund doctrine are based on a "percentage- of-the-benefit" analysis, while those undera fee- shifting statute are determined using the lodestar method...." Apple Computer, supra, at 1270,citing to Brytus v. Spang & Co., 203 F.3d 238, 247 (3d Cir. Feb. 7, 2000). This observation in Apple Computeris simply wrong. However, it must be noted that Apple does not involve the actual awarding of a reasonable attorneys' fee. Rather, it discusses fee awards generally in the context of a wholly different issue: whether an employeeofa plaintiffs' class action law firm can act as a representative plaintiff. (g) Wershba v. Apple Computer, 91 Cal.App.4th 224 [110 Cal.Rptr.2d 145] (6th App. Dist. July 31, 2001). 16 Wershbais based on post-SerranoIII federal fee jurisprudence. Serrano IIT is not mentioned. Courts recognize two methodsfor calculating attorney fees in civil class actions: the lodestar/multiplier method and the percentage of recovery method. (Zucker v. Occidental Petroleum Corp. (C.D. Cal. 1997) 968 F.Supp. 1396, 1400.) Id. at 254; APRat 5. (h) Food Market, Inc., 7, 2005). Consumer Cause, Inc. v. Mrs. Gooch's Natural 127 Cal.App.4th 387 (2d App.Dist., Div. 7, Mar. Petitioner believes that the language in Consumer Cause supports his interpretation of Serrano II and the primacy ofthe lodestar approach. The Consumer Cause court states: An awardoffees under the equitable common fund doctrine is "analogousto an action in quantum meruit: The individual seeking compensationhas, by his actions, benefited another and seeks paymentfor the value of the service performed." (Serrano v. Unruh, supra,, 32 Cal.3d at p. 628.) (Consumer Cause, supra, 127 Cal.App.4th at 397.) In confirming the commonfunddoctrine’s connection to quantum meruit recovery: Amount of recovery being only the reasonable value of the services rendered regardless of any agreementas to value. 17 (BLACK'S LAW DICTIONARY(4th ed. 1971), definition of quantum meruit) (emphasis added), the case confirmsthat it is the lodestar approach,i.e., the value of the services rendered, that forms the basis for equitable principles under the common fund doctrine. CONCLUSION There is a conflict amongthis state's appellate courts about the instruction that this Court's Serrano III decision imposes on a court's award of reasonable attorneys' fees. The Laffitte decision addsto this conflict, and it is important that this Court resolve that conflict. Dated: January 22, 2015. Respectfully submitted, Lawrence W. Schonbrun Attorney for Plaintiff-Appellant and Petitioner David Brennan 18 CERTIFICATE OF COMPLIANCE Counsel of Record hereby certifies that pursuant to Rule 8.504(d)(1) of the California Rules of Court, the attached Reply to Answerto Petition for Review contains 3,918 words of proportionally spaced Times New Roman14-point type as recorded by the word count of the Microsoft Office 2007 word processing system, and is in compliance with the type-volumelimitations permitted by the rules of court. Counsel relies on the word count of the computer program usedto prepare this Petition. — Lawrence W. Schonbrun Attorney for Plaintiff-Appellant and Petitioner David Brennan Dated: January 22, 2015 Post - 1 CERTIFICATE OF SERVICE I declare that: I am overthe age of 18 years and notparty to the within action. I am employedin the law firm of Lawrence W. Schonbrun, whose business address is 86 Eucalyptus Road, Berkeley, California 94705, County ofAlameda. On January 22, 2015, I caused to be served a copy ofthe following document: REPLY TO ANSWERTO PETITION FOR REVIEW _x__ by mail on the below-namedpartiesin said action, in accordance with CCP § 1013, by placing a true and accurate copy thereof in a sealed envelope, with postage thereon fully prepaid, and depositing the same in the United States Mail in Berkeley, California, to the addresses set forth below: Kevin T. Barnes, Esq. M.Kirby C. Wilcox, Esq. Law Offices of Kevin T. Barnes Paul Hastings LLP 5670 Wilshire Blvd., Ste. 1460 55 Second Street, 24th FI. Los Angeles, CA 90036 San Francisco, CA 94105-3441 Tel: (323) 549-9100 Tel: (415) 856-7000 Fax: (323) 549-0101 Fax: (415) 856-7100 E-mail: Barnes@kbarnes.com E-mail: Attorneysfor Plaintiffs KirbyWilcox@paulhastings.com Attorneysfor Defendants Barry M. Appell, Esq. Judith M. Kline, Esq. Mika M.Hilaire, Esq. Paul Hastings LLP Appell, Hilaire, Benardo LLP 515 So. FlowerSt., 25th FI. 15233 Ventura Blvd., Ste. 420 Los Angeles, CA 90071 Sherman Oaks, CA 91403 Tel: (213) 683-6000 Tel: (818) 788-2300 Fax: (213) 627-0705 Fax: (818) 788-2464 E-mail: E-mail: Mika@ahblegal.com JudyKline@paulhastings.com Attorneysfor Plaintiffs Attorneysfor Defendants Post - 2 Joseph Antonelli, Esq. Janelle Carey, Esq. Law Office of Joseph Antonelli 14758 Pipeline Ave., Ste. E Chino Hills, CA 91709 Tel: (909) 393-0223 Fax: (909) 393-0471 E-mail: JAntonelli@antonellilaw.com Attorneysfor Plaintiffs Clerk, Superior Court County of Los Angeles Stanley Mosk Courthouse 111 North Hill Street Los Angeles, CA 90012 Clerk, Court of Appeal Second Appellate District 300 South Spring Street Second Floor, North Tower Los Angeles, CA 90013 I declare underpenalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed on January 22, 2015, at Berkeley, California. auedne Vawrc Sandra Norris Post - 3