Hauselt v. County of Butte

Filed 3/24/09 Hauselt v. County of Butte 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

----

Plaintiff William Hauselt sued Butte County (the County) for inverse condemnation and related torts. He brings this appeal objecting to the trial courts award of attorney fees and costs under Code of Civil Procedure section 1036 (section 1036). After a lengthy court trial, plaintiff prevailed on only one of his claims. A judgment was entered awarding plaintiff $1,034 as just compensation for a temporary taking by the County of an easement on plaintiffs property. Plaintiff subsequently filed a memorandum of costs seeking $414,103.49 in attorney fees, and a variety of other costs, fees and expenses pursuant to section 1036. The County filed a motion to tax costs, which the trial court granted in part and denied in part. The trial court awarded plaintiff a total of $45,039.10 for attorney fees and other costs. Plaintiff appeals contending the trial court abused its discretion in making the award. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

We set forth, in brief, the facts underlying the lawsuit. In 1988, plaintiff William Hauselt purchased a 94-acre almond orchard in North Chico, California. The northern boundary of the property is a natural watercourse called Keefer Slough. The property is bounded on the west by State Highway 99. To the north of Hauselts property and Keefer Slough are two subdivisions; one developed before Hauselt bought his orchard (Carriage Estates) and one developed after his purchase (Wildflower Estates).

Hauselts property has a history of periodic flooding. In 1998, Hauselt sued the County for inverse condemnation and related torts claiming the County had made the flooding worse by permitting or participating in acts which now regularly allow [his] property to be the dumping ground for Keefer Slough floodwaters[.] Hauselts claims focused on the Countys actions in (1) permitting developers to raise the bank on the north side of Keefer Slough; (2) allowing developers on the north side of Keefer Slough to discharge ground waters into Keefer Slough through pipes and a ditch; (3) sponsoring a restoration project at the bifurcation of Keefer Slough and Rock Creek, the effect of which was to permit increased flows into Keefer Slough; (4) replacing the Garner Lane Bridge, which permitted increased flows[;] and (5) building an emergency berm during the storms of February, 1998, at Red Fox Court, which remains to date (Red Fox Court). This last claim related to actions the County took in anticipation of a winter storm similar to one the previous winter that had dramatically increased the volume of water in Keefer Slough. Specifically, the County built a six-acre detention pond in the Wildflower Estates subdivision at the end of Red Fox Court. A small portion of the work including visqueen plastic sheeting, sand bags, and the outfall end of a pipe and flap gate encroached into Keefer Slough on [Hauselts] property.

The parties stipulated to bifurcate liability and damages and to proceed with a court trial of liability first. The parties stipulated that Hauselts inverse condemnation claim was based on a claim of physical taking by the County. After a court trial, the trial court filed a statement of decision in which the trial court concluded Hauselts claims regarding the discharge of waters from Carriage Estates and Wildflower Estates into Keefer Slough through pipes and a ditch were time-barred. The trial court concluded none of the Countys other actions increased the flood burden on Hauselts property and rejected each of his claims of a permanent physical taking.

The trial court found the County had placed material (the plastic sheeting, sandbags, pipe end and flap gate) on Hauselts land in connection with the Red Fox Court storm work in February 1998. The trial court found the County was entitled to immunity for such work because it involved the proper use of the Countys police powers. However, the emergency had expired and the materials remained. The County agreed to remove the materials and restore Hauselts property to its prior condition. Based on this, the trial court found the Red Fox Court activity to be a temporary taking by the County of an easement for the materials. It concluded Hauselt was entitled to damages for the temporary loss of use of his property caused by the placement of the materials. The parties stipulated to $1,034 as the amount of just compensation for the temporary taking and a judgment was entered in favor of Hauselt and against the County in that amount.^[1]

Hauselt subsequently filed a memorandum of costs seeking a total of $414,103.49 in attorney fees, and a variety of other costs, fees and expenses pursuant to section 1036. Hauselt supported his request for costs with a declaration of his current legal counsel detailing the hours that he and others in the firm worked on the case, their hourly rates, the attorney fees Hauselt had previously paid to four prior attorneys/law firms, the expert witness fees paid to six different individuals or firms, and an itemization of the other incurred expenses and costs. Hauselt also filed his own declaration regarding the fees and expenses he incurred to bring the action.

The County filed a motion to tax Hauselts costs. The County did not challenge Hauselts status as a prevailing party, but claimed the cost bill did not represent fees and costs reasonably and necessarily incurred to litigate the single claim on which Hauselt was successful. The successful claim was such a minor matter, in the Countys view, that the County suggested Hauselt be awarded between $0 and $10,000 for his current legal counsels fees. The County also raised a number of specific objections to the fees claimed for prior attorneys and to various other items of costs.

Hauselt opposed the Countys motion to tax costs, arguing he was constitutionally and statutorily entitled to reimbursement of his reasonable costs and fees regardless of the amount of the underlying award. He argued that apportionment of the fees to the successful claim was virtually impossible; the fees were reasonably and actually incurred; his expert witness fees were expressly recoverable under section 1036; and with a couple of exceptions, the other itemized fees and costs were reasonable, necessary and properly allowed. Hauselt sought a reduced amount of $407,593.51.

The trial court issued a written ruling granting the Countys motion in part and denying it in part. In its ruling, the trial court noted each of the written documents it had reviewed and that oral argument had been heard. [B]eing fully advised in the premises of the parties, the trial court found that [c]ounsel for each party provided superior representation for their respective clients[,] that the case presented difficult factual and legal issues[,] and that [t]he discovery conducted by the parties, the amount of trial preparation, and the length of trial were all directly related to the complexity of the issues presented to the court. Nevertheless, [t]he matter upon which [Hauselt] prevailed, receiving a judgment in the amount of $1034, was peripheral to the main thrust of the litigation. The Red Fox Court temporary taking issue seemed almost an afterthought. The large damage award sought by [Hauselt] was not based upon the claim upon which [Hauselt] prevailed. As relevant on appeal, the trial court allowed $10,000 as reasonable attorney fees, $10,000 as reasonable expert witness fees, and disallowed claimed lodging costs of $655 and claimed travel expenses of $2,338. With other allowed costs and expenses, the trial court awarded a total of $45,039.10 to Hauselt.

DISCUSSION

I.

Standard of Review

Whether a particular attorneys fee is reasonable is a matter resting within the sound discretion of the trial court. (Parker v. City of Los Angeles (1974) 44 Cal.App.3d 556, 567.) In considering whether the trial court has abused its discretion, [w]e review the entire record, attentive to the trial courts stated reasons in denying [or granting] the fees and to whether it applied the proper standards of law in reaching its decision. . . . [Citation.] [Citation.] If it did, we then determine whether the application of that standard to the facts was within the scope of its discretion under the statute. [Citations.] We defer to the trial courts discretion because of its superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters. [Citation.] [Citation.] (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 418.) The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong. [Citations.] (Serrano v. Priest (1977) 20 Cal.3d 25, 49; accord PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

II.

The Trial Court Did Not Abuse Its Discretion In Its Award of Attorney Fees

A. Applicable Legal Principles

The established rule is that allowance of expert witness and attorney fees is not required by the just compensation clause of article I, section 19, of the California Constitution, and that the discretion to provide for award of these costs lies with the Legislature. [Citation.] (Holtz v. San Francisco Bay Area Rapid Transit Dist. (1976) 17 Cal.3d 648, 658; see Marshall v. Department of Water & Power (1990) 219 Cal.App.3d 1124, 1149.) The Legislature has provided a statutory right to costs, including attorney fees, in an inverse condemnation proceeding in section 1036. The right to costs is limited by the language of that statute. (Holtz v. San Francisco Bay Area Rapid Transit Dist., supra, at p. 658[referencing the predecessor statute to  1036].)

Section 1036 provides as follows: In any inverse condemnation proceeding, the court rendering judgment for the plaintiff by awarding compensation . . . shall determine and award or allow to the plaintiff, as a part of that judgment . . . , a sum that will, in the opinion of the court, reimburse the plaintiffs reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of that proceeding in the trial court or in any appellate proceeding in which the plaintiff prevails on any issue in that proceeding.

In assessing attorney fees under section 1036, the court begins with a touchstone or lodestar figure, based on the careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case. [Citation.] (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132, 1134-1135 [noting application of lodestar method in inverse condemnation case]; see Salton Bay Marina, Inc. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 953, 957-958; see Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed. 2008)  11.2, p. 290.) The lodestar figure is the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th 1084, 1095.)^[2]

The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the results obtained. This factor is particularly crucial where a plaintiff is deemed prevailing even though he succeeded on only some of his claims for relief. In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award? (Hensley v. Eckerhart (1983) 461 U.S. 424, 434 [76 L.Ed.2d 40, 51], fn. omitted; see Harmon v. City and County of San Francisco, supra, 158 Cal.App.4th at pp. 417-418; see Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 247.)^[3]

Where a plaintiff has obtained excellent results on a single claim or related claims, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. [Citation.] (Hensley v. Eckerhart, supra, 461 U.S. at p. 435 [76 L.Ed.2d at pp. 51-52].) If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. (Id.at p. 436 [76 L.Ed.2d at p. 52.) A reduced award is appropriate.

It is not always easy to determine whether successful and unsuccessful claims are related claims so as to apply these principles. A leading treatise suggests that generally, if the cause of action is based on a different set of facts or course of conduct, it will be considered a distinct claim. If it is based on the same set of facts or course of conduct but asserts a different legal theory or seeks different relief, it will be considered the same claim or a related claim. (Pearl, Cal. Attorney Fee Awards, supra,  12.16, p. 341.)

Where the plaintiff has achieved only limited success on a claim unrelated to his/her other claims, the court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. (Hensley v. Eckerhart, supra, 461 U.S. at pp. 436-437 [76 L.Ed.2d at p. 52]; accord Harman v. City and County of San Francisco, supra, 158 Cal.App.4th at p. 418; accord Sokolow v. County of San Mateo, supra, 213 Cal.App.3d at pp. 248-250.)

Attorney fees awarded under section 1036 must be both actually incurred and reasonable. (Andre v. City of West Sacramento (2001) 92 Cal.App.4th 532, 537.)

B. Analysis

Hauselt first claims the trial court abused its discretion in awarding only $10,000 in attorney fees because it failed to engage in the required lodestar analysis, instead rubber-stamping the Countys suggested figure.

The trial court here issued a written ruling regarding its award of costs and fees, but it was not required to set forth all the details of its reasoning in that ruling. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1140; Wershba v. Apple Computer (2001) 91 Cal.App.4th 224, 254.) No specific findings reflecting the courts calculations were required. [Citation.] The record need only show that the attorney fees were awarded according to the lodestar or touchstone approach. [Citation.] On appeal we infer all findings in favor of the prevailing parties. (Wershba v. Apple Computer, supra, at p. 254; see Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1348-1349.) The record may reflect the lodestar approach was used through formal findings or otherwise. (Rebney v. Wells Fargo Bank, supra, at p. 1348, quoting Mandel v. Lackner (1979) 92 Cal.App.3d 747, 758, fn. 6.)

The record here includes Hauselts cost memorandum and his counsels supporting declaration, which sought attorney fees entirely based on the lodestar method. Hauselt also argued essentially a lodestar method in his opposition to the Countys motion to tax costs. At the hearing on the Countys motion, Hauselt expressly argued lodestar calculations. In its ruling, the trial court stated it considered all of the above and that it was apprised of the parties positions. The trial court then made several findings, indicating its lodestar approach to the attorney fee award, utilizing factors appropriately effecting the adjustment of a lodestar figure. The critical finding was that [t]he matter upon which [Hauselt] prevailed, receiving a judgment in the amount of $1034, was peripheral to the main thrust of the litigation. The Red Fox Court temporary taking issue seemed almost an afterthought. The large damage award sought by [Hauselt] was not based upon the claim upon which [Hauselt] prevailed. The trial court awarded $10,000 for attorney fees.

Although the trial courts findings in its ruling do not expressly state the court was following the lodestar method of determining reasonable fees under section 1036, we conclude the record as a whole sufficiently establishes that to be the case. We do not consider it fatal that the written ruling of the trial court does not expressly mention the word lodestar or set forth the trial courts calculations regarding the lodestar figure. The ruling is sufficiently clear that the court impliedly used such approach and found Hauselts requested amount to be unreasonable in light of Hauselts limited success. The record here met the minimal requirement necessary to show the attorney fees award was based on the lodestar method. (See Rebney v. Wells Fargo Bank, supra, 232 Cal.App.3d at p. 1349.)

This case is not analogous to Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794 (Dunk), on which Hauselt relies. In Dunk, the party seeking attorney fees lobbied the trial court to use the common fund approach to calculating fees and failed to submit even an approximation of the number of hours spent by the attorneys on the litigation. (Id.at p. 1810.) The reviewing court remanded the case to the trial court for the calculation of a reasonable fee based on the lodestar method, stating remand was necessary [b]ecause use of the common fund approach is improper in this case, the record does not reflect the presentation of information sufficient to properly apply the lodestar approach, and we are unable to determine how the trial court calculated the fees. (Ibid.) The same is not true here. In this case, the only proposed method of determining fees was the lodestar method, supported by the declaration of Hauselts counsel providing billing records and the applicable hourly rates for each timekeeper. The County contended, however, a straight award of the fees sought (i.e., the lodestar figure of hours times rate) would not be a reasonable rate because of Hauselts limited success. The County proposed, and the trial court apparently accepted, a simple reduction of the fees to account for the limited success. (Hensley v. Eckerhart, supra, 461 U.S. at pp. 436-437 [76 L.Ed.2d at p. 52]; Harman v. City and County of San Francisco, supra, 158 Cal.App.4th at p. 418; Sokolow v. County of San Mateo, supra, 213 Cal.App.3d at pp. 248-250.) The record is not unclear on the trial courts application of the appropriate legal principles. (See Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 149.)

Hauselt disputes his lodestar figure was apportionable for the limited success obtained. He argues the County waived^[4]its lodestar arguments by failing to raise them below and that the County failed to meet its evidentiary burden to show a basis for apportionment. Hauselt claims apportionment is not required where claims are based on common facts or related legal theories, that apportionment is inappropriate here because his claims were inextricably intertwined, and that no authority allows apportionment between issues subsumed within a successful inverse condemnation claim. We find apportionment was properly raised by the County and applied by the trial court.

In its motion to tax costs, the County essentially argued Hauselts requested fees and costs were not reasonable because the temporary taking on which he was successful was a discrete claim separate from Hauselts overriding purpose and own view of his inverse condemnation action, that it was belatedly raised, and that it could have been resolved by a very short court trial. The County supported its contentions with a declaration of its counsel. This was sufficient to raise the issue and dispute Hauselts claim for unapportioned fees relating to the entire litigation, even though the County did not reference or analyze the lodestar figure in its filings.

From the trial courts statement of decision on the merits of Hauselts claims and its discussion with the parties at the hearing on the Countys motion to tax costs, it is apparent the Countys actions with respect to the Red Fox Court emergency work could be considered part of and interrelated with Hauselts broader claim of a permanent taking of his property for storage of flood waters. Hauselt argued his inverse condemnation theory was that the County exercised dominion and control over his property resulting in a taking and that the Countys actions at Red Fox Court was one of those acts illustrating how the County was treating his property. It was the straw that broke the camels back.

Nevertheless, it was not unreasonable for the trial court to find apportionment appropriate here. While the Red Fox Court matter was part of Hauselts broader claim of inverse condemnation, the reverse was not necessarily true. That is, the evidence of the other categories of previous County action were not part of, related to, or necessary for Hauselts claim of a temporary taking by the Countys encroachment on his property with materials used in connection with the Red Fox Court emergency work. Hauselts temporary taking claim was not based on the facts related to Hauselts broader permanent taking claim. While both claims were for inverse condemnation; they were distinct in their nature and basis. (See Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 103-104 [trial court should award attorney fees for portion of fees incurred in litigating inverse condemnation claim, but not for fees incurred on claims for which attorney fees are not recoverable]; Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 431 [where lawsuit consists of related claims, and plaintiff has won substantial relief, trial court has discretion to award all or substantially all of plaintiffs fees even if court did not adopt each contention raised]; Downey Cares v. Downey Community Development Com. (1987) 196 Cal.App.3d 983, 997 [same]; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1303 [litigant should not be penalized for failure to find the winning line at the outset, unless the unsuccessful forays address discrete unrelated claims, are pursued in bad faith, or are pursued incompetently (italics added)]; Salton Bay Marina, Inc. v. Imperial Irrigation Dist., supra, 172 Cal.App.3d at p. 958 [apportionment required, but trial court should allow fees with respect to noninverse condemnation cause of action that was relevant to inverse condemnation action]; Red Mountain LLC v. Fallbrook Utility Dist. (2006) 143 Cal.App.4th 333, 365 [same].)

We further reject Hauselts contention that this case is analogous to two other cases reversing attorney fee awards.

In Press v. Lucky Stores (1983) 34 Cal.3d 311 (Press), the plaintiffs sought attorney fees pursuant to Code of Civil Procedure section 1021.5 (the private attorney general theory) after they successfully challenged the defendants interference with their right to collect signatures for a statewide initiative measure. (Press v. Lucky Stores, supra,at p. 316.) The trial court found plaintiffs were entitled to an award of fees, but awarded only $112.98. (Id.at pp. 317, 323.) Concluding the only benefit conferred by the litigation was its impact on the signature drive at defendants store (id. at p. 317), the trial court arrived at its award by multiplying plaintiffs lodestar figure by 3,000/556,000 -- a fraction representing the ratio of petition signatures obtained at defendant store to the number of signatures obtained statewide. (Ibid.) The Supreme Court found the trial court had abused its discretion in calculating its award. (Id.at p. 324.) It failed to use plaintiffs lodestar figure and engage in the Serrano-type analysis of the various factors which might justify modifying that sum. (Id.at p. 322.) Instead, it devised its own arbitrary formula. (Ibid.) The trial courts fraction was neither a valid negative multiplier nor a logical measure of the results obtained. (Id.at p. 323.) Finally, the award failed to bear some reasonable relationship to the lodestar figure and to the purpose of the private attorney general doctrine where the trial court had divided plaintiffs requested amount by 185! (Id.at p. 324.)

In this case, the trial court did consider Hauselts lodestar figure and did engage in analysis of the factors that permit adjustment of that figure. It found one of the factors crucial - the limited success of Hauselt on a peripheral claim. This alone distinguishes Press, supra, 34 Cal.3d311, which was not a case in which the plaintiffs obtained only partial success. Moreover, the record does not reflect the trial court here devised an arbitrary formula to measure the benefit obtained. Rather, it appears the trial court reduced the claimed fees to what it considered a reasonable sum for the amount of effort expended on the sole successful claim. The trial court was in the best position to know what portion of the trial related to the successful claim. Indeed, the trial courts comments at the hearing on the Countys motion to tax costs suggest it felt Hauselt could have proved the temporary taking simply with photographs showing the plastic, soil and pipes on his property and limited evidence that the materials were placed there to protect other houses from flooding. We cannot say a $10,000 award is unreasonable for such minimal litigation effort.

Nor is this case similar to Marshall v. Department of Water & Power, supra, 219 Cal.App.3d 1124. In Marshall, the trial court found defendant liable for inverse condemnation and a jury assessed damages of $1 to the Marshalls. (Id.at pp. 1130, 1137.) The Marshalls had a 33 1/3 percent contingency fee agreement with their attorneys. The trial court awarded attorney fees of 30 percent of the jury verdict to the Marshalls, resulting in a total fee award of 30 cents. (Id.at p. 1150.) The reviewing court reversed and remanded for reconsideration of the attorney fee award based on [t]he paltriness of the award. (Ibid.) The reviewing court explained, in part, that the outcome of the trial is only one of the factors to be considered [in awarding attorney fees]. An attorney should not be punished for the unbelievability of his or her clients. This was a three-week trial. This fact alone leads us to find that the court could not have exercised its discretion as to the Marshalls request with an awareness of the fractional dollar amount being awarded. (Ibid.)

The trial courts award in this case of $10,000 cannot be considered a paltry award. Nor can we say it was based solely on the amount of damages awarded (as we understand the meaning of the phrase outcome of the trial used in Marshall, supra, 219 Cal.App.3d at p. 1150).

We conclude the trial court did not abuse its discretion under section 1036 in its award of $10,000 as reasonable attorney fees for Hauselts successful claim of a temporary taking.

III.

Plaintiff Has Not Shown The Trial Court Abused Its Discretion In Denying Reimbursement Of Travel Expenses and Most Expert Witness Fees

A. Background

Section 1036 provides, in relevant part, for reimbursement of the plaintiffs reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees[.]

1. Expert Witness Fees

Hauselt sought reimbursement of $65,225.95 for expert witness fees paid to six different individuals or firms.

In its motion to tax costs, the County contended the fees were not allowable, citing Ferrell v. County of San Diego (2001) 90 Cal.App.4th 537 (Ferrell), a case that concluded section 1036 does not allow a costs award broader than the costs recoverable under Code of Civil Procedure section 1033.5 (section 1033.5). (Ferrell, supra,at pp. 543-544.)

Hauselt responded that the fees were allowed under the language of section 1036, that Ferrell, supra, 90 Cal.App.4th 537, was not controlling, and that both section 1036 and the California Constitution required full reimbursement of his reasonably incurred costs.

In reply, the County argued Hauselt was only entitled to reasonable costs, that section 1036 allows reimbursement only for appraisal and engineering fees, that some of the fees claimed by Hauselt were for firms or individuals that were not appraisers or engineers, that other fees were for experts that left Hauselts service because they disagreed with his inverse condemnation theory, and that the largest fee claimed by Hauselt was for services directed at his larger takings theory upon which he failed to prevail.

The trial courts ruling on the Countys motion to tax costs states: Witness fees: The court allows $10,000 as reasonable expert witness fees.

2. Travel Expenses

Hauselt sought reimbursement for $655 in lodging costs and $2,338 in travel expenses (mostly or all mileage costs).

The County objected to these costs as not being expressly allowed by section 1033.5, an apparent reference to Ferrell, supra, 90 Cal.App.4th 537.

Hauselt responded that the lodging costs were necessary because it was impractical for his counsel, located in Sacramento, to travel four hours each day when he was preparing for and trying this matter in Butte County on consecutive days. Hauselt contended the travel expenses were necessary to conduct depositions, investigate the property, meet with client, attend court hearing/proceedings, and attend trial.

In reply, the County asserted Hauselt should be estopped from claiming these costs. The nature of the estoppel claimed is not clear.

The trial courts ruling on the Countys motion to tax costs states: Lodging: $655 disallowed and Travel expenses: $2338 disallowed.

B. Analysis

Hauselt challenges the trial courts reduced award for expert witness fees and its disallowance of his claims for lodging and travel expenses, claiming the trial court abused its discretion. He reasserts his entitlement to reimbursement of the full amount of those costs and expenses pursuant to article I, section 19, of the California Constitution and section 1036. He asks us to reject Ferrell, supra, 90 Cal.App.4th 537. Hauselt contends the expert witness fees and travel expenses were also compensable under section 1033.5, subdivision (c), which provides the trial court with discretion to allow cost items not otherwise mentioned in section 1033.5 if the court finds they were reasonably necessary to the conduct of the litigation. ( 1033.5, subds. (c)(2) & (c)(4).)

We conclude Hauselt has not shown an abuse of discretion in the trial courts award.

The trial courts ruling does not reflect the basis for its reduced award of expert witness fees. The ruling does not indicate whether the trial court relied on Ferrell, supra, 90 Cal.App.4th 537, or accepted the Countys argument regarding section 1036 being limited to appraiser and engineering fees. The ruling does not indicate which experts fees were awarded or how the court otherwise apportioned the award. The ruling simply states $10,000 is awarded as reasonable expert witness fees and disallows the lodging and travel expense claims.

Even assuming without deciding Hauselts assertion that Ferrell, supra, 90 Cal.App.4th 537, was wrongly decided (see 2 Matteoni & Veit, Condemnation Practice in California (Cont.Ed.Bar 3d ed. 2008) 17.14, pp. 959-960) and that a court has discretion under section 1036, as it does under section 1033.5, subdivision (c), to award expert witness fees and other costs, such discretion is limited to costs that are reasonable ( 1036) or reasonably necessary[.] ( 1033.5, subd. (c)(2).) Here the trial court determined $10,000 was reasonable for expert witness fees, impliedly finding Hauselts claim of $64,225.95 was unreasonable. The trial court disallowed the lodging and travel expenses, which is consistent with a finding that those costs and expenses were not reasonable or reasonably necessary to the temporary taking claim in which Hauselt prevailed. The trial court was in the best position to make such findings. We cannot say it was an abuse of discretion for the trial court to find Hauselts expert witness fees, lodging costs, and travel expenses were not reasonable or reasonably necessary for the litigation of his successful temporary taking claim, a peripheral claim that the trial court believed was almost an afterthought. In the same way it properly reduced the award of attorney fees based on Hauselts limited success, the trial court could properly reduce its award of costs and expenses.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent. (Cal. Rules of Court, rule 8.278(a).)

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND , P. J.

HULL , J.

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^[1] Hauselts appeal of the underlying merits of the trial courts ruling and judgment is pending before this court in a related appeal, Hauselt v. County of Butte, case No. C054927. The County has requested we take judicial notice of the record in that appeal. (Evid. Code, 452, subd. (d).) We deny the request as the record of the other appeal is unnecessary to our resolution of the issues in this appeal.

^[2] In this regard, the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.)

^[3] In adjusting the lodestar figure through a multiplier, a number of factors should be considered. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095; Serrano v. Priest, supra, 20 Cal.3d at p. 49.) In an inverse condemnation action, the trial court should examine such factors as: nature of litigation, contingent nature of award, difficulty, amount involved, skill required in its handling, skill employed, attention given, success or failure of attorneys efforts, attorneys skills and learning, including experience in the particular type of work demanded, and novelty of the theories presented[,] as well as the factors enumerated in cases dealing with a fee award under the private attorney general theory [citation] since in an inverse condemnation case, like a case where fees are granted under the private attorney general theory, the plaintiff brings a case which should have been initiated by the government. (Salton Bay Marina, Inc. Imperial Irrigation Dist., supra, 172 Cal.App.3d at p. 958.)

^[4]Forfeiture, not waiver, is the correct term. [F]orfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. [Citations.] [Citation.] [Citation.] (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.) Silence about an issue in the trial court does not waive the issue on appeal, but forfeits it. (In re S. B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)