Berry v. City of Jackson

Filed 7/27/07 Berry v. City of Jackson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Amador)

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Plaintiff Ken Berry appeals from an order awarding $9,106.30 in attorney fees in this action. He contends that the trial court awarded too little in fees because it failed to perform a proper lodestar calculation. (Code Civ. Proc.,  1021, further section references are to the Code of Civil Procedure.) We find no abuse of discretion and shall affirm the order.

BACKGROUND

In November 2004, Berry and the Friends of Jackson filed a petition challenging the City of Jacksons amendments to the Land Use Element of its General Plan. They sought to compel the City to comply with the requirements of the California Environmental Quality Act by preparing an environmental impact report rather than proceeding by negative declaration.

In December 2004, the trial court issued an alternative writ directing the City to either rescind its approval of the general plan amendments or show cause why it should not be ordered to do so.

By the following March, the City had rescinded its approval of the amended Land Use Element of the General Plan and had set aside the negative declaration supporting the amendment. Thus, it announced that the action had been rendered moot.

When the parties failed to reach an agreement concerning the payment of Berrys attorney fees, Berry moved for an order allowing him to recover $27,142.48--a total of the fees incurred by three attorneys representing him in this action under a private attorney general theory, pursuant to section 1021.5. His application was supported by declarations and billing statements.

The City opposed the motion as including questionable billing entries, attorney fees incurred after March 2005, and fees for an attorney who was not being paid for involvement in the case.

Following oral argument on Berrys motion, the trial court ruled that the plaintiffs are entitled to attorneys fees under [section] 1021.5. The Court is going to find, however, that many of the entries or invoices are vague or questionable. There are several charges for conferencing between attorneys, and there are several significant charges not remotely specific. Miss Lungus charges for mileage, for billing preparation are inappropriate. Moreover, the amount requested appears to be excessive in light of the amount of work performed. [] Accordingly, the Court intends to adjust the fees for vague and duplicative entries. Im going to find that appropriate fees for Mr. Keene would be $1,120.00 [of $1,995 sought]. Miss Lungu is awarded $4,872.00 [of $16,823.48 sought]. Mr. Lewis is $3,114.30 [of $8,325.90 sought] . . . .

The court denied Berrys motion for reconsideration, finding that he presented no new or different facts, circumstances, or law.

DISCUSSION

Berry contends the trial court abused its discretion in reducing the attorney fee award from the amount sought. He asks us to remand the matter to the trial court to determine and disclose its lodestar fee calculation in accordance with section 1021.5, and then to adjust it upward or downward based on allthe relevant circumstances.

The City does not challenge that an award of section 1021.5 attorney fees was appropriate, but argues that the record does not support an inference that the trial court abused its discretion in determining the amount of fees. We agree.

Section 1021.5 codifies the private attorney general doctrine adopted by the California Supreme Court in Serrano v. Priest (1977) 20 Cal.3d 25. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317; Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933.) [T]he fundamental objective of the private attorney general doctrine of attorney fees is to encourage suits effectuating a strong [public] policy by awarding substantial attorneys fees . . . to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens. [Citation.] The doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible. (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 933.)

Section 1021.5 provides in pertinent part: 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.

The decision whether to award attorney fees pursuant to section 1021.5 rests initially with the trial court. Using its traditional equitable discretion, the trial court must realistically assess the litigation and determine, from a practical perspective [citation] whether or not the statutory criteria have been met. [Citations.] (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 647-648.) On appeal, we review the courts decision for abuse of discretion, and shall not disturb it absent a showing that there is no reasonable basis in the record for the award. (Ibid.)

Applying section 1021.5, the exercise of discretion must be based on the lodestar adjustment method. (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 322, citing Serrano v. Priest, supra, 20 Cal.3d at pp. 48-49.) A trial court must determine a touchstone or lodestar figure based on a careful compilation of the time spent and reasonable hourly compensation for each attorney . . . involved in the presentation of the case. (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 322.) The proper determination of the use of the lodestar figure is extremely important because [t]he starting point of every fee award . . . must be a calculation of the attorneys 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 . . . . (Ibid.) Ultimately, the trial judge has discretion to determine the value of professional services rendered in his [or her] court . . . . [Citation.] In sum, California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys fee award. [Citation.] (Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903.)

Berrys brief assumes that because the trial court awarded less than the amount requested, the court must have failed to use the required lodestar method in its calculations. That assumption is flawed.

The trial court is not bound to accept as correct the amount the moving party believes is owed. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132; Hadley v. Krepel (1985) 167 Cal.App.3d 677, 683.) As the court here properly noted, the prevailing party is entitled to attorney fees only for services reasonably provided; he should not be compensated for his counsels inefficient or duplicative efforts. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) Accordingly, the reasons cited by the court were proper bases for reducing a statutory fee award: only fees which are reasonably spent are recoverable, and attorney hours may be reduced for duplication, padding, or frivolous claims. (See California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 754 and cases cited therein.)

Nor do we assume the trial court failed to consider the appropriate factors because it made no specific findings as to how it reached its calculation. [T]he trial court has no sua sponte duty to make specific factual findings explaining its calculation of the fee award and the appellate courts will infer all findings exist to support the trial courts determination. (California Common Cause v. Duffy, supra, 200 Cal.App.3d at p. 754.) Indeed, it is incumbent on the party who is dissatisfied with the courts calculation of the number of allowable hours, or who suspects the trial court may not have followed the guidelines set forth in Press v. Lucky Stores, Inc., supra, 34 Cal.3d 311, to request specific findings. (California Common Cause v. Duffy, supra, 200 Cal.App.3d at p. 755.)

Berry did not request specific findings and, therefore, may not now complain on appeal that he does not know which particular hours the court eliminated.

DISPOSITION

The order is affirmed.

SCOTLAND , P.J.

We concur:

NICHOLSON , J.

RAYE , J.

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