Elizondo v. Dept. of Transportation CA3 ( 2022 )

Filed 7/22/22 Elizondo v. Dept. of Transportation 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
RACHEL A. ELIZONDO, C088987
Plaintiff and Appellant, (Super. Ct. No. STK-CV-
UOE-2013-0006188)
v.
DEPARTMENT OF TRANSPORTATION,
Defendant and Respondent.
Plaintiff Rachel A. Elizondo won a jury verdict of $605,000 on her employment
discrimination and retaliation claims against defendant Department of Transportation.
Because plaintiff was the prevailing party in the case, the trial court awarded over
$700,000 in attorney fees for her counsel, John A. Shepardson, and over $117,000 in
costs. Plaintiff contends the trial court abused its discretion in making that award.
1
Regarding attorney fees, we agree with plaintiff that the trial court abused its
discretion by calculating Shepardson’s fees based on a local hourly rate, rather than an
out-of-town rate. We reject plaintiff’s other challenges to the attorney fee award,
including her challenge to the number of reasonable hours Shepardson spent on the case
and the lodestar multiplier of 1.2. Regarding costs, we affirm in all respects, except for
the trial court’s articulation of the sum of the costs awarded. 1
Accordingly, we will reverse in part the order on appeal and remand the matter to
the trial court for further consideration.
BACKGROUND
In 2009, plaintiff was working in Stockton for defendant when she saw e-mails
intended for some of her male coworkers that contained sexually explicit content.
Believing it was her “responsibility to report something like that,” plaintiff told her
supervisor.
In June 2013, plaintiff filed a civil complaint alleging defendant harassed, and
discriminated and retaliated against her because of the 2009 e-mail incident.
In May 2017, plaintiff filed a second amended complaint containing five causes of
action against defendant: (1) violation of the California Whistleblower Protection Act
(Gov. Code, § 8547; hereafter WPA); (2) retaliation in violation of title 42 United States
Code section 2000e-3(a) (Title VII); (3) retaliation in violation of the California Fair
Employment and Housing Act (Gov. Code, § 12940, subd. (h); hereafter FEHA);
(4) failure to prevent retaliation in violation of the FEHA (Gov. Code, § 12940,
subd. (k)); and (5) wrongful termination in violation of Labor Code sections 98.6 and
1102.5.
1 This matter was assigned to the panel as presently constituted in June 2022.
2
In November 2017, after a 26-day jury trial, the jury found defendant violated
plaintiff’s rights under Title VII and the FEHA (the second, third, and fourth causes of
action) and awarded $605,000 in damages.
Pleadings on Attorney Fees and Costs
In March 2018, invoking the FEHA’s attorney fee provisions2 (and other statutes),
plaintiff sought attorney fees and costs as the prevailing party in her case. Plaintiff asked
for over $4,000,000 in fees for her attorney John A. Shepardson.3 Shepardson filed a
supporting declaration, explaining that: (i) he was “past president of the Santa Clara
County Trial Lawyers Association,” and his office was in Los Gatos, California; (ii) he
represented plaintiff pursuant to an “extremely high risk” fee agreement, wherein plaintiff
agreed to pay him “$125/hr. . . . and a 22.5% contingency fee,” even though his “usual
hourly rate” was “between $250 to $350”; (iii) the “Bay Area market rate for the services
[he] rendered” was “$825/hour”;4 (iv) the case presented a “number of novel and/or
difficult issues”; (v) he was “precluded from working on other cases that could have
generated substantially more than rates” he charged plaintiff; and (vi) the case benefitted
the public interest, as it “exposed systemic government corruption.”
Plaintiff’s first declaration in support of attorney fees and costs detailed her efforts
to obtain counsel. She explained: (1) she “first contacted local trial lawyer Charles
Pacheco,” but he “declined to take the case based on lack of evidence”; (2) Attorney
David Rishwain “declined to take the case because employment law was not his area of
2 Government Code section 12965, subdivision (c)(6), provides in relevant part: “In
civil actions brought under this section, the court, in its discretion, may award to the
prevailing party . . . reasonable attorney’s fees and costs, including expert witness fees
. . . .”
3 Over 2,000 hours of work at $825 an hour, with a multiplier of 2.5.
4 Attached as exhibits to this declaration were declarations from Bay Area
employment law attorneys that addressed the market rates for their work.
3
expertise”; (3) “local attorney Gary Davenport” “did not do employment law,” and
“recommended [plaintiff] hire a Bay Area employment lawyer.” After two attorneys in
the San Francisco Bay Area declined to represent plaintiff, she hired Shepardson.
In an April 2018 opposition, defendant challenged plaintiff’s claimed hourly rate,
because “it ignore[d] plaintiff’s counsel’s normal and customary hourly rate of $250-
$350 per hour.” The “claimed rate” of “$825 per hour” was “wholly unsupported and
without foundation.” Further, an analysis of “the prevailing Bay Area legal rates” was
“irrelevant” and “not implicated,” since it was “know[n] with precision what . . .
Shepardson’s normal customary market rate [was] . . . .”
Defendant also argued that plaintiff “fail[ed] to show any serious good faith effort
to secure local counsel,” as she “apparently contacted three attorneys in San Joaquin
County who all informed her that they do not practice in employment law. This level of
inquiry is not exhaustive and fails to show that plaintiff was precluded from retaining
local counsel.”
Regarding the number of attorney hours, defendant argued the “hours claimed by
plaintiff’s counsel [we]re inflated . . . .” Defendant asserted the “reasonable hours
necessarily expended” in the case (about 250 fewer hours than Shepardson claimed)
multiplied by Shepardson’s hourly rate of $250, lead to a “just and reasonable” attorney
fee award of around $400,000.
A declaration of a senior legal analyst, filed in support of the opposition, disputed
the “reasonable amount of attorney fee hours” and identified over $118,000 in
“improper” costs.
Plaintiff filed a reply memorandum, reply declarations, and objections to the
declaration that supported defendant’s opposition.
April 2018 Hearing
At an April 2018 hearing, the trial court asked plaintiff’s counsel to produce “if
it’s feasible, a type of a spreadsheet.” The trial court explained that “in light of the
4
voluminous items . . . [it] need[ed] to rule on, . . . if [it was] going to deny a particular
item, then [it] need to state . . . reason[s] . . . for that,” because “the [a]ppellate [c]ourt
wants to see [the] reason[s].”
A spreadsheet could facilitate the trial court’s analysis of plaintiff’s requests for
fees and costs, the trial court explained, because the document would have separate
columns for plaintiff’s counsel work, defendant’s objections to a particular item, and the
trial court’s ruling on each item.
Regarding the question of the relevant hourly rate, the trial court told the parties:
“[T]here are some cases that . . . would support a rate by somebody outside the
county or some other declarations as to whether there’s anybody in the county that can do
that work at a different rate.
“And I -- I probably would like more guidance. I mean, I did read Mr.
Shepardson’s declaration with regard to what his expert has said would be relevant rates,
but . . . [that] dealt with rates that were awarded out of this county. . . .
“So, I think that’s certainly a significant decision I have to make as to what the
reasonable rate is in the relevant community . . . .
“And I know from my experience as a civil judge that there are attorneys who do
those, that type of litigation. I know -- I mean, I can think of at least two firms that do
that at this point.
“But if you don’t give me that information, I’m supposed to use my knowledge as
a judge to determine the relevant community rate, and I don’t know -- I haven’t
gone outside and made an ex parte inquiry of local attorneys. I think that’s probably
improper. . . .
“So I’m not sure the appellate courts are clear as to what inquiry I could make.
I’m not going to make a separate inquiry, certainly on an ex parte basis, unless you both
want to allow me to do that. . . . If you don’t both allow me to ask local attorneys, do
they do this type of litigation, what do they charge, I’m not going to make that inquiry.”
5
Plaintiff’s counsel, Shepardson, replied: “I don’t have any problem . . . if the
Court wants to make that inquiry to local attorneys as to what the local rate is. [¶] It’s
our position, because Ms. Elizondo . . . made a good faith effort to get local counsel and
wasn’t able to, . . . that the Bay area rates apply. That’s why we didn’t provide the
evidence of local rates, because in our view they didn’t apply.”
Defense counsel requested the trial court not conduct that inquiry, saying: “there
is no need to go to the prevailing rates, and that’s our argument in the brief . . . because
we’re not contesting it. [¶] I agree, if we were contesting Mr. Shepardson’s claimed
market rates, there would be a need to establish whether it was reasonable or not. The
problem or the focus of our objection to this claim is that the rate that he is seeking to be
compensated at is not his market rate and it has [no] bearing to the market rate that Mr.
Shepardson normally charges.”
Further Pleadings on Attorney Fees and Costs
In June 2018, plaintiff filed (a) her supplemental declaration regarding her efforts
to obtain local counsel, (b) declarations by attorneys that plaintiff contacted before she
hired Shepardson, and (c) spreadsheets along the lines the trial court requested at the
April 2018 hearing (with empty columns for defendant’s responses, and the trial court’s
rulings). The costs spreadsheet contained over 100 items and the fees spreadsheet for
Shepardson’s hours contained over 750 items.
In her supplemental declaration in support of attorney fees and costs, plaintiff
explained that at least three attorneys in Stockton and two attorneys in Sacramento
County declined to take her case. One Stockton attorney who declined to represent her
“recommended [she] hire a Bay Area employment lawyer.” Two Bay Area attorneys
declined to represent her, but Shepardson agreed to represent her “only . . . if there was a
hybrid hourly/contingency fee agreement.” Shepardson “refused” to “take [her] case on a
contingency fee basis,” and was the only attorney she spoke with who “mentioned a
hybrid hourly/contingent fee.”
6
Plaintiff also explained that she contacted (i) “the Stockton [l]aw [f]irm of Mayall
Hurley . . . about taking [her] case” and (ii) a Modesto law firm about her case. She
spoke with a “case intake person” at each firm, but no one from either firm called her
back.
Plaintiff “estimate[d] [she] spent 60-70 hours looking for a local lawyer to take
[her] case.”
One attorney who provided a supporting declaration was civil litigator David
Rishwain, who explained: (i) he had been practicing law out of an office in Stockton
since 1995; (ii) the “majority of [his] practice involve[d] matters venued in San Joaquin
County”; (iii) in 2009, he spoke with plaintiff about a potential lawsuit against defend ant
“regarding sexual harassment and retaliation”; (iv) at that time, he knew plaintiff’s
husband, who “was and for many years had been the landscape maintenance contractor
for the building where [Rishwain] maintained [his] law office”; (v) ultimately, he
declined to represent plaintiff, “because [he] did not feel [he] had the necessary
experience handling cases such as hers.”
Attorney Douglass F. Penney (with an office in Elk Grove [Sacramento County])
declared: (i) he had been “handling workers[’] compensation cases for 41 years”; (ii) he
represented plaintiff in workers’ compensation cases against defendant; (iii) plaintiff
asked him in 2012 or 2013 to represent her in a civil action against defendant; (iv) he
declined to represent plaintiff, at least in part because his law firm “did not handle civil
cases on a contingency fee basis.”
Attorney Charles Pacheco declared that: (i) “including employment cases,” he had
been “trying civil and criminal cases for over 30 years” “up and down the Central Valley
of California, including in San Joaquin County Superior Court”; (ii) his office was in
Sacramento; (iii) plaintiff contacted him in 2013 about representing her in “her case
against” defendant; (iv) he knew plaintiff from “dealings with her when she was a
7
hearing officer for the DMV”;5 (v) he declined to take plaintiff’s case because of a “lack
of available evidence to prove up her case.”
Stockton Attorney Gregory R. Davenport, declared: (i) he had been “litigating and
trying civil cases for over 26 years”; (ii) plaintiff contacted him sometime between 2009
and 2013 about representing her “in her employment retaliation against” defendant;
(iii) he “declined to take her case because [he] [did not] handle employment retaliation
cases”; (iv) given plaintiff’s circumstances “and [his] own assessment of employment
lawyers in the local area and Bay Area, [he] suggested [plaintiff] hire a Bay Area
lawyer.”
Defendant’s supplemental opposing documents included three declarations by
Stockton attorneys regarding prevailing local hourly rates for attorneys in employment
cases. Two declarations described a local rate of $300 to $325 per hour for employment
cases. The third declaration described a rate of $190 to $365 per hour.
Defendant also filed an updated version of the spreadsheets generated and filed by
plaintiff in her supplemental pleadings, with defendant’s objections (if applicable) to each
item. The spreadsheet with defendant’s objections to Shepardson’s hours ran 260 pages.
In August 2018, plaintiff responded to defendant’s objections.
On August 27, 2018, the trial court ordered: “Briefing is closed. Further filings as
to the [m]otion for [a]ttorney [f]ees and [c]osts are untimely.”
In November 2018, plaintiff filed a motion “to [a]llow [f]iling of [n]ew
[e]vidence” in support of her motion for attorney fees and costs.
5 Plaintiff testified at trial that she previously worked as a “[d]river [s]afety
[h]earing [o]fficer,” “conduct[ing] [a]dministrative hearings that had to do with
individuals that had the[ir] license suspended or revoked for various reasons.”
8
In December 2018, the trial court issued a tentative ruling, explaining that because
plaintiff “could have obtained local counsel had she made a good -faith inquiry,” the local
prevailing rate of $350 per hour was appropriate for the attorney fee award.
December 2018 Hearing
At oral argument, when Shepardson maintained that plaintiff made a “good faith
effort” to find local counsel, the trial court replied: “She made an effort. I don’t think
she made a good faith effort.”
The court wondered aloud, “why would [plaintiff] contact a workers’ comp
attorney or other attorneys who didn’t even do employment law?” Plaintiff’s counsel
replied: “Well, she’s a layperson, and he was a workers’ comp attorney for her.”
The trial court also observed that Attorney David Rishwain said in his declaration
that he did not “handle employment litigation.”
When Shepardson asked the trial court if it thought plaintiff “should have
contacted five or six employment” attorneys, the trial court replied: “I’m not going to put
a number on it. [¶] . . . [¶] . . . I don’t think she made a good faith effort. I think probably
the premier[ ] firm who does this here,” “Mayall Hurley who she called and they never
called back. I know they handle dozens and dozens of these cases, many of them in front
of me, and I know what they charge, and I don’t think that was a good faith effort
because that’s the name she would have gotten had she made a good faith effort.”
“But she did call them,” plaintiff’s counsel responded.
“A good faith effort would have been to call back, okay, and find out,” the trial
court replied. “[Y]ou just don’t make a phone call and leave a message and then walk
away. I don’t think that was a good faith effort, okay, overall, okay?” “Do you know
that there’s 700 attorneys in San Joaquin County? About 450 belong to our Bar
Association, so I think there are attorneys that do this type of litigation that, had she made
a good faith effort, she would have been able to find out more about them. [¶] That
9
might have made the difference for me, but I don’t think she made a good faith effort
here. She made a perfunctory effort.”
Regarding Shepardson’s hours and plaintiff’s costs, the trial court explained that it
“looked at absolutely every entry,” “every objection,” “every reply information and
declaration, which was thousands of pages. It took me a long time. I went through every
item.”
Regarding Shepardson’s hours, for each item the trial court “delineated a
particular number of hours that [it] thought were reasonable for that item, and if [it]
reduced [the hours], [the trial court] took notes to [it]self as to why [it] reduced that
particular item.” The trial court “went through every item independently. [It] then added
up the items, the number of hours that [it] thought were reasonable that were not
duplicative, that were necessary.”
For example, the trial court told Shepardson it “did reduce some hours” for his
lack of preparation and organization at trial, explaining: “I was very disappointed that
you seemed to be unprepared each day as you came in. When we’d start at the beginning
of the session and I’d say resume, you’d be flipping through your book to find certain
exhibits, and you couldn’t find them, and it looked to me like you were just unprepared.
You hadn’t prepared for that day’s session despite claiming that you spent six or eight
hours after court preparing for the next day. You weren’t organized.”
The trial court also disallowed some hours Shepardson claimed that “weren’t
attributable to this case and had to do with political activity, contacting legislature,
writing articles . . . .”
10
The Written Ruling
In January 2019, the trial court filed its ruling on the motion for attorney fees and
costs, awarding over $700,000 in fees to Shepardson (at a rate of $350 an hour) and
$117,488.60 in costs.6
Regarding the number of hours, the trial court found “the sum of allowable
hours . . . totaled 1,733.5.” (Boldface & underscoring omitted.) The trial court:
(i) “awarded [p]laintiff all hours that were reasonably incurred,” including “reasonable”
travel time, but did not award for hours spent (a) on “travel to and from routine case
management conferences which could have been handled more economically by Court
Call,” (b) “[c]onferring with a client about newspaper articles of general interest,” (c) on
“duplicative or unreasonable” tasks, such as “[e]xcessive and duplicative time for
organizing documents . . . especially in light of Mr. Shepardson’s presentation at trial”
and relatively “[in]efficient[ ]” “organiza[tion] and prepar[ation],” or (d) on “ministerial
tasks” that “non-attorney staff” could have “more economically . . . accomplished”;
(ii) took “judicial notice of certain records of the court proceedings and . . . considered its
own observations of the progress of the litigation and the documents filed and
presentations in court,” including that Shepardson “to some extent over-litigated th[e]
case”; (iii) “considered each item individually and in context,” “not allow[ing]” some
items “due to the subject matter, such as” (a) hours “devoted solely to administrative
proceedings which are not allowed K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1415-
1426, when not intertwined with the civil litigation” or (b) hours spent “study[ing] . . .
pornography laws.”
As for the appropriate hourly rate, the trial court explained it was concerned with
“prevailing rates for litigation in the San Joaquin County area,” not the San Francisco
6 The trial court also ordered smaller attorney fees awards to others who worked on
plaintiff’s case. Those awards are not material to this appeal.
11
Bay Area. “Fees charged in the San Francisco Bay Area carr[ied] limited weight,”
because plaintiff failed to meet “her burden of showing that hiring local counsel was
impracticable.” The trial court explained: Plaintiff “made no reasonable good-faith
effort to retain local counsel. [She] made no more than a cursory effort by contacting
local attorneys who clearly did not handle employment cases. Rather than looking on the
[I]nternet or asking attorneys for a referral, she prematurely decided that she would hire
Mr. Shepardson who happened to be willing to represent her.”
The trial court continued: “San Joaquin County lists approximately 700 attorneys
and has an active [l]awyer [r]eferral [s]ervice. This judicial officer, who is also the
supervising civil judge, has employment cases filed in his department on a regular basis
by local attorneys. There are law firms that handle dozens of such cases. This judicial
officer finds that it would not have been impracticable to find a local attorney willing and
able to handle this case.”
In addition to its own experience, the trial court referenced “the declarations filed
by [d]efendant,” which had “sufficient weight to persuade the [trial] court that there [was]
a realistic indication that [plaintiff] could have obtained local counsel had she made a
good-faith inquiry.”
The trial court chose a rate of $350 per hour, “near the high end of” “the range
suggested by most local attorneys.”
On the question of a multiplier, the trial court noted that it considered:
(a) “whether the demands of the case substantially precluded” Shepardson from other
work; (b) “that a failure to fully compensate for the risk in bringing even a meritorious
case would effectively immunize . . . defendants from being held to answer for”
violations of law; and (c) “factors such as the novelty and difficulty of the questions
involved and the skill displayed in presenting them.”
The trial court determined: (a) Shepardson “failed to substantiate that
representation . . . substantially precluded other work”; (b) the hybrid contingency nature
12
of the representation agreement “substantially reduced” Shepardson’s risk in bringing the
case, militating in favor of a “lower multiplier”; (c) “the issues involved in the case were
not new” (as the case “primarily involved” witness credibility determinations by the jury
“and weighing the persuasive effect of the evidence”); and (d) Shepardson “frequently
displayed a lack of preparation and . . . disorganiz[ation]” and did not show “exceptional
skill” in litigating the case.
“Taking the case on a contingent fee basis is a significant factor, combined with
the delay in compensation, to justify a positive multiplier” of 1.2, the trial court
concluded.
Other relevant rulings the trial court made were that plaintiff’s “untimely”
November 2018 filing was “den[ied],” and that attorney fees were not awarded pursuant
to Code of Civil Procedure section 1021.5,7 as plaintiff did not meet her burden of
“proving a significant benefit . . . for members of the public,” because “[a]ll damages
were requested for [p]laintiff alone,” and there “was no claim for injunctive relief which
may have conferred a benefit on the general public.”
7 That law provides, in relevant 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.”
13
DISCUSSION
I
Background Legal Principles
A
“Except as provided by statute or agreement, each party to a lawsuit must
ordinarily pay his or her own attorney’s fees.” (Glaviano v. Sacramento City Unified
School Dist. (2018) 22 Cal.App.5th 744, 750 (Glaviano).)
“Through an attorney fee award, the FEHA encourages private counsel to
vindicate the right of an employee to work in an environment free from unlawful
discrimination. (See Flannery v. Prentice (2001) 26 Cal.4th 572, 583 [‘ “ ‘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’ ” ’];
Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387 [‘the purpose
behind the [attorney] fee provision was to make it easier for a plaintiff of limited means
to bring a meritorious suit’].)” (Caldera v. Department of Corrections & Rehabilitation
(2020) 48 Cal.App.5th 601, 606-607 (Caldera).)
“In statutory fee-shifting cases, in which the prevailing party is statutorily
authorized to recover his or her attorney’s fees from the losing party, the lodestar method
is the primary method for establishing the amount of recoverable fees. [Citations.]
Under the lodestar method, the trial court must first determine the lodestar figure -- the
reasonable hours spent multiplied by the reasonable hourly rate -- based on a careful
compilation of the time spent and reasonable hourly compensation of each attorney
involved in the presentation of the case. (Ketchum [v. Moses (2001)] 24 Cal.4th [1122,]
1131-1133.)” (Glaviano, supra, 22 Cal.App.5th at pp. 750-751.)
“The reasonable hourly rate is that prevailing for private attorneys in the
community conducting noncontingent litigation of the same type.” (Glaviano, supra,
22 Cal.App.5th at p. 751.)
14
“The relevant ‘community’ is that where the court is located.” (Altavion, Inc. v.
Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 71; MBNA America
Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13 [“determination of market rate
is generally based on the rates prevalent in the community where the services are
rendered, i.e., where the court is located”].)
But “in the unusual circumstance that local counsel is unavailable” or “hiring local
counsel was impracticable,” the trial court may use the rate of counsel from a higher fee
market in determining a reasonable hourly rate. (Horsford v. Board of Trustees of
California State University (2005) 132 Cal.App.4th 359, 399.)
To show that hiring local counsel was impracticable, thereby permitting use of
higher rates for out-of-town counsel, a party must show “ ‘ “a good-faith effort to find
local counsel.” ’ ” (Environmental Protection Information Center v. Department of
Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 249 (Environmental Protection)
[“Like the court in Horsford . . . ‘we doubt a plaintiff needs to make anything more than
“a good-faith effort to find local counsel” [citation] in order to justify the fees of out-of-
town counsel’ ”].)
Whichever geographic locus the trial court uses, “[t]he prevailing hourly rates
apply ‘ “ ‘regardless of whether the attorneys claiming fees charge[d] nothing for their
services, charge[d] at below-market or discounted rates, represent[ed] the client on a
straight contingent fee basis, or are in-house counsel. [Citations.]’ [Citation.]” ’
[Citations.]” (Glaviano, supra, 22 Cal.App.5th at p. 751.)
“ ‘The court may rely on its own knowledge and familiarity with the legal market
in setting a reasonable hourly rate.’ [Citation.]” (Nishiki v. Danko Meredith, P.C. (2018)
25 Cal.App.5th 883, 898 (Nishiki).) “The courts repeatedly have stated that the trial court
is in the best position to value the services rendered by the attorneys in his or her
courtroom [citation], and this includes the determination of the hourly rate that will be
15
used in the lodestar calculus.” (569 East County Boulevard LLC v. Backcountry Against
the Dump, Inc. (2016) 6 Cal.App.5th 426, 437.)
“After determining the lodestar, the trial court may adjust the lodestar figure based
on factors including, but not limited to (1) the novelty and difficulty of the questions
involved, (2) the skill displayed in presenting them, (3) success or failure, (4) the extent
to which the nature of the litigation precluded other employment by the attorneys, (5) the
contingent nature of the fee award, (6) that an award against the state would ultimately
fall upon the taxpayers, (7) that the attorneys in question received public and charitable
funding for the purpose of bringing lawsuits of the character here involved, and (8) that
the monies awarded would inure not to the individual benefit of the attorneys involved
but the organizations by which they are employed. [Citations.] The lodestar adjustment
method ‘anchors the trial court’s analysis to an objective determination of the value of the
attorney’s services, ensuring that the amount awarded is not arbitrary.’ [Citation.]”
(Glaviano, supra, 22 Cal App.5th at p. 751.)
B
“ ‘ “ ‘On review of an award of attorney fees after trial, the normal standard of
review is abuse of discretion.’ ” ’ [Citation.] ‘ “ ‘The trial court’s decision will only be
disturbed when there is no substantial evidence to support the trial court’s findings or
when there has been a miscarriage of justice. If the trial court has made no findings, the
reviewing court will infer all findings necessary to support the judgment and then
examine the record to see if the findings are based on substantial evidence.’ [Citation.]”
[Citation.]’ [Citation.]” (Nishiki, supra, 25 Cal.App.5th at p. 895.)
“A trial court abuses its discretion when it applies the wrong legal standards
applicable to the issue at hand.” (Paterno v. State of California (1999) 74 Cal.App.4th
68, 85; see Conservatorship of Bower (2016) 247 Cal.App.4th 495, 506 [“getting the
legal standard wrong means that a subsequent decision becomes itself a per se abuse of
discretion even if, assuming the wrong standard, the decision is otherwise reasonable”].)
16
C
“It is a fundamental rule of appellate review that the judgment appealed from is
presumed correct and ‘ “ ‘all intendments and presumptions are indulged in favor of its
correctness.’ ” [Citation.]’ [Citation.]” (Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852.)
Thus, it is an appellant’s burden to demonstrate reversible error by presenting “an
adequate argument including citations to supporting authorities and to relevant portions
of the record.” (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547,
557.) “When an appellant’s brief makes no reference to the pages of the record where a
point can be found, an appellate court need not search through the record in an effort to
discover the point purportedly made. [Citations.] We can simply deem the contention to
lack foundation and, thus, to be forfeited. [Citations.]” (In re S.C. (2006)
138 Cal.App.4th 396, 406-407; see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246
[“ ‘[i]f a party fails to support an argument with the necessary citations to the record, . . .
the argument [will be] deemed to have been waived’ ”].)
Further, because it is not the responsibility of an appellate court to “act as counsel
for [a party] and attempt to arrange [their] arguments coherently,” “failure to provide
coherent organization to . . . arguments forfeits consideration of those arguments on
appeal.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 181.)
17
An appellant also forfeits arguments raised for the first time in a reply brief that
could have been raised in the opening brief.8 (Hurley v. Department of Parks &
Recreation (2018) 20 Cal.App.5th 634, 648, fn. 10.)
II
Hourly Rate and Plaintiff’s “Good-faith” Effort to Retain Local Counsel
Plaintiff argues the trial court erred in concluding she did not make a good -faith
effort to retain local counsel. On the proper application of the standard, plaintiff contends
the “lens” through which the question of her good faith should be viewed “is through her
eyes”—i.e., the eyes of someone who was “not [a] trained lawyer and . . . judge,” like the
trial court. On the facts, plaintiff contends the trial court “failed [to] recognize that
[plaintiff] contacted multiple local attorneys” who “rejected her case . . . and/or
recommended Bay Area attorneys.”
Defendant argues the trial court did not err, as it was “in the best position to know
the state of the local litigation bar and the result of a good faith effort to find local
counsel.” Further, defendant argues, plaintiff “provided no evidence showing that she
approached any local attorneys with a blended rate proposal once she learned of such an
option. Local counsel was not . . . given an opportunity to compete for the case on the
same compensation terms as . . . Shepardson . . . .”
We conclude the trial court abused its discretion on this issue by (1) applying an
incorrect standard in analyzing the question of her good faith in seeking to retain local
counsel, (2) relying on its own knowledge and experience beyond the permissible limits
8 Accordingly, we do not consider plaintiff’s claim that the trial court abused its
discretion by denying her untimely November 2018 filing, because though this issue was
referenced in the opening brief as a “question presented,” plaintiff provided argument on
the issue only in her reply brief.
Any other arguments by plaintiff not discussed in this opinion are deemed
forfeited.
18
contemplated by the case law, and (3) making findings unsupported by substantial
evidence in the record.
Case Law
“In Horsford, the Court of Appeal held the trial court abused its discretion in using
local Fresno rates in calculating the lodestar amount where the plaintiff submitted an
uncontradicted declaration stating he unsuccessfully attempted to retain local
employment law attorneys to represent him before hiring out-of-town counsel from San
Francisco. The court explained: ‘This evidence was overwhelming and uncontradicted; it
simply provides no basis for the court’s conclusion that “there is no adequate showing
that it was impossible or even unusually difficult to find a local attorney to take the
case.” . . .’ [Citation.]
“Similarly, in Center for Biological Diversity v. County of San Bernardino (2010)
188 Cal.App.4th 603, the Court of Appeal held the trial court abused its discretion in
using local San Bernardino rates in calculating the lodestar amount where ‘the only
evidence on the issue of availability of local counsel showed plaintiffs’ need to retain out-
of-area counsel.’ [Citation.] That evidence was a declaration from one of the plaintiffs
in the action. The declarant stated he was both ‘ “actively involved in environmental and
conservation issues in the San Bernardino Mountains” ’ and ‘ “familiar with the local San
Bernardino attorney market,” ’ and to his knowledge ‘ “there [were] no local attorneys in
San Bernardino County that regularly practice environmental law on behalf of
environmental groups, will do such work on a contingent or reduced rate basis, and
possess sufficient expertise . . . to represent . . . the . . . petitioners in this litigation.” ’
[Citation.] The court explained: ‘A plaintiff’s threshold showing of impracticability . . .
is not onerous [citation], and the [above-described] declaration is sufficient and
competent evidence that plaintiffs acted in good faith and hiring qualified counsel in the
San Bernardino area was impracticable.’ ” (Marshall v. Webster (2020) 54 Cal.App.5th
275, 286.)
19
Because the declarant in Center for Biological Diversity, “[t]hrough his
experience, . . . was well aware of the local market,” “[u]nder th[o]se particular
circumstances, plaintiffs were not required to produce more detailed evidence, such as
evidence of contacts to numerous attorneys who refused the case.” (Center for Biological
Diversity v. County of San Bernardino, supra, 188 Cal.App.4th at p. 619, italics added
(Center for Biological Diversity).)
In Environmental Protection, supra, 190 Cal.App.4th 217, the appellate court
affirmed out-of-town rates where local counsel refused to undertake primary
representation and stated in a declaration he was “not aware ‘of any other local attorney
or law firm . . . who would have represented [plaintiffs] in th[e] matter.’ ” (Id. at p. 249;
id. at p. 250.)
In Caldera, the prevailing plaintiff had “ ‘contacted numerous local lawyers’ in
the Inland Empire ‘all of whom turned [him] down. [He] then expanded [his] search for
a lawyer to Los Angeles County,’ ” where he found representation. (Caldera, supra,
48 Cal.App.5th at p. 605.) The appellate court ruled the trial court abused its discretion
in rejecting Los Angeles hourly rates, as “there was unrefuted evidence [the prevailing
plaintiff] was unable to find an attorney that would take his case in the Inland Empire (the
greater San Bernardino and Riverside areas).” (Id. at p. 611.)
Analysis
The case law is consistent with what the nature of a “good-faith effort” test already
suggests: analysis of a litigant’s good-faith effort to retain local counsel must be from
that litigant’s vantage point, accepting the litigant as she is.
For example, if a plaintiff whose (a) active involvement in a niche activity in a
particular geographic area (e.g., environmental and conservation issues in a local
mountain range) and (b) familiarity with the local attorney market in that geographic area
(c) forms the basis of a declaration that, to that plaintiff’s knowledge, (d ) there were no
qualified local attorneys who would have been able represented her in specific litigation
20
concerning that niche activity in that geographic area, then (e) that declaration establishes
the plaintiff “acted in good faith and hiring qualified” counsel in the local area “was
impracticable.” (Center for Biological Diversity, supra, 188 Cal.App.4th at pp. 618; id.
at p. 619.)
By contrast, an employee who wants to sue her employer for an adverse
employment action must attempt to retain local counsel before seeking out-of-town
counsel. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1238, 1244.) But if those
efforts prove unsuccessful, and especially if local counsel indicate to plaintiff that she is
unlikely to find qualified local counsel to represent her (Environmental Protection, supra,
190 Cal.App.4th at pp. 249-250), that employee need demonstrate only that she
“ ‘contacted numerous local lawyers’ . . . ‘all of whom turned [her] down.’ ” (Caldera,
supra, 48 Cal.App.5th at pp. 605; id. at pp. 610-611.)
Here, plaintiff provided her own declarations detailing her unsuccessful efforts to
obtain counsel in Stockton (three individual lawyers and one law firm) and Sacramento
County (two individual lawyers) who all declined to represent her in this case. One
Stockton attorney (Davenport) “recommended [she] hire a Bay Area employment
lawyer.” Bay Area attorney Shepardson refused to take her case on a straight
contingency fee basis, and was the only attorney she spoke to who “mentioned a hybrid
hourly/contingent fee.”
Defendant provides no authority for support of the proposition that, once plaintiff
obtained a new understanding of the possibility of “blended rate[s]” from Shepardson (a
Bay Area attorney), she had to return to local counsel and give them “an opportunity to
compete for the case on the same compensation terms as . . . Shepardson,” or else forfeit
the ability to claim out-of-town rates.
21
Among the declarations that plaintiff submitted from attorneys who declined to
represent her, two were from Stockton (San Joaquin County) and two were from
Sacramento County.9
One of the Sacramento County lawyers plaintiff sought (Pacheco) she knew from
her time as a DMV hearing officer. Another Sacramento County lawyer she sought
(Penney) previously represented her in workers’ compensation matters. One San Joaquin
County attorney who declined her case (Rishwain) worked in a building that plaintiff’s
husband did landscaping for, and had been practicing law since 1995. Another San
Joaquin County attorney who declined her case (Davenport) was an experienced civil
litigator who confirmed in his declaration what plaintiff said in her declaration—that
(given his own assessment of employment lawyers in the local area) he suggested
plaintiff seek representation in the Bay Area, not locally.
When explaining its reasoning that plaintiff “made an effort,” but not a good-faith
effort, the trial court wondered aloud why plaintiff “would . . . contact a workers’ comp
attorney or other attorneys who didn’t even do employment law” and paraphrased one of
the San Joaquin County attorneys who declined to represent plaintiff as saying “I don’t
handle employment litigation.” 10 In its written ruling, the trial court determined plaintiff
9 The trial court made no distinction between the Sacramento County and San
Joaquin County lawyers for purposes of its analysis of plaintiff’s “good-faith” efforts to
retain local counsel. Nor did defendant argue for such a distinction in the trial court or in
its briefing on appeal. Accordingly, for purposes of our analysis of plaintiff’s efforts to
retain local counsel in this case, we treat the greater Sacramento County and San Joaquin
County areas as the relevant geographic locus. (Cf. Caldera, supra, 48 Cal.App.5th at
pp. 610-611 [treating the “greater San Bernardino and Riverside areas” as the relevant
geographic locus for purposes of a good-faith effort to retain local counsel].)
10 See Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 335,
footnote 14 (appellate courts may consider a trial court’s “analysis offered” and oral
statements made at a hearing if those statements are “consistent with the reasoning set
forth in the court’s final written order and shed[ ] further light on the propriety of that
reasoning”).
22
did not make a “reasonable good-faith effort” to retain local counsel, as she “made no
more than a cursory effort” to contact local attorneys “who clearly did not handle
employment cases.” The trial court applied the wrong legal standard, thereby abusing its
discretion. (Paterno v. State of California, supra, 74 Cal.App.4th at p. 85;
Conservatorship of Bower, supra, 247 Cal.App.4th at p. 506.)
From the vantage point of a typical layperson, rather than that of a sophisticated
consumer of legal services, it is perfectly understandable that plaintiff sought to retain
counsel previously known to her, even if not specializing in employment law. Indeed, a
typical layperson cannot be expected to have a full appreciation for the specialization of
modern legal practice, including the notion that workers’ compensation law is not
“employment law.” (Cf. Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971)
6 Cal.3d 176, 188 [especially in light of “specializ[ation] within the [legal] profession,” a
client “cannot be expected” to “ascertain malpractice at the moment of its incidence”].)
And from the vantage point of a typical layperson, it is also understandable that
plaintiff sought representation in the Bay Area after an experienced Stockton civil
litigator suggested she do so, after declining to represent her. (Cf. Environmental
Protection, supra, 190 Cal.App.4th at p. 249 [affirming out-of-town rates where local
counsel refused to undertake primary representation and stated in a declaration he was
“not aware ‘of any other local attorney or law firm . . . who would have represented
[plaintiffs] in th[e] matter’ ”].)
The trial court also abused its discretion when it relied on its personal knowledge
and experience (compounding the error of using the wrong legal standard), explaining:
“This judicial officer, who is also the supervising civil judge, has employment cases filed
in his department on a regular basis by local attorneys. There are law firms that handle
dozens of such cases. This judicial officer finds that it would not have been
impracticable to find a local attorney willing and able to handle this case.”
23
The trial court’s personal knowledge that employment cases were filed in its
department on a regular basis by local attorneys was not a proper basis to reject plaintiff’s
evidence of her unsuccessful efforts to retain local counsel. Case law permits a trial court
to rely on its own knowledge of a legal market in setting a reasonable hourly rate (see,
e.g., Nishiki, supra, 25 Cal.App.5th at p. 898). A trial court may be (a) familiar with the
prevailing hourly rate in the legal market where it sits and (b) in the best position to value
services rendered by attorneys in its courtroom. In contrast, a litigant’s efforts to retain
local counsel occur outside the courtroom, in a myriad of scenarios into which a trial
court will have little independent insight.11
We conclude the trial court’s reasoning reflects an erroneous heightening of the
evidentiary hurdle that plaintiff had to clear to justify out-of-town counsel rates. The
proper question was “did plaintiff make a good-faith effort to obtain local counsel?”; not
“could plaintiff have obtained local counsel?”
Further, none of defendant’s declarations in the record on appeal contain
substantial evidence to support the trial court’s finding to apply local rates.
The declaration filed in support of the original opposition addressed only the
number of claimed attorney hours and costs; not the proper hourly rate. The three
declarations by San Joaquin County attorneys that defendant filed after the April 2018
11 For this reason, defendant’s argument—that the trial court did not err because it
was “in the best position to know the state of the local litigation bar and the result of a
good faith effort to find local counsel”—is unpersuasive. It is not the case that a trial
court is permitted to consider its own knowledge of the overall “state of the litigation
bar” when analyzing any aspect of a potential attorney fee award. Rather, and more
narrowly, a trial court may consider “ ‘its own knowledge and familiarity with the legal
market’ ” (Nishiki, supra, 25 Cal.App.5th at p. 898) when determining the economic
value of representation that the trial court directly observes. (See 569 East County
Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th at p. 437
[“the trial court is in the best position to value the services rendered by the attorneys in
his or her courtroom”].)
24
hearing concerned only the local prevailing hourly rate, and did not address the good
faith (or lack thereof) of plaintiff’s efforts to retain local counsel. (Cf. Rey v. Madera
Unified School Dist. (2012) 203 Cal.App.4th 1223, 1241 [the trial court “was faced with
conflicting evidence,” because defendant “submitted declarations from two local
attorneys” who “declared that they had the experience, skill and resources to accept such
a case and would have taken this case if asked”], italics added.)
Accordingly, the trial court abused its discretion when it ruled plaintiff did not
make a good-faith effort to retain local counsel. As that determination was the basis of
the trial court’s decision to reject plaintiff’s request for out-of-town counsel rates, we will
reverse that decision, and remand for recalculation of Shepardson’s fees using out-of-
town rates.12
III
Hours
A. Defendant’s Counsel’s Time on the Case
Plaintiff contends the trial court “arbitrarily stated [defendant’s] time was
‘irrelevant’ to [an] analysis” of the reasonableness of the number of hours plaintiff’s
counsel spent on the case.
12 Defendant’s argument that “there was no prejudicial error,” and reliance on our
decision in Early v. Becerra (2021) 60 Cal.App.5th 726, is unpersuasive. In that case we
said: “ ‘The only proper basis of reversal of the amount of an attorney fees award is if
the amount awarded is so large or small that it shocks the conscience and suggests that
passion and prejudice influenced the determination.’ ” (Id. at p. 744, quoting Akins v.
Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) But Akins’s “shocks the
conscience” formulation arises only after an appellate court is satisfied that the trial court
has not made a legal error that undermines the validity of a fee award. (Akins, at p. 1134
[“Having concluded that the trial court acted properly as a matter of law . . . we find more
generally that the trial court acted properly when making the attorney fees award that it
did,” as “we cannot conclude that the award of attorney fees shocks the conscience”].)
Here, because of the trial court’s threshold legal error, the “shocks the conscience” test is
inapplicable.
25
After denying as untimely plaintiff’s November 2018 motion to be permitted to
introduce new evidence (including the amount of time defense counsel spent on the
matter), the trial court observed that “[e]ven if [it] were to consider the merits of” the
untimely pleading, the trial court “would rule that there is nothing relevant included.”
Plaintiff does not develop any clear argument that the trial court’s threshold
untimeliness ruling was error. Accordingly, we need not address plaintiff’s contention
regarding the trial court’s observation how it would have ruled “even if” it considered the
new evidence.
B. Presuit Administrative Proceedings
Plaintiff contends the trial court “mistakenly relied [on] K.I. . . . to deny fees
purely related to administrative proceedings.”13 We conclude the holding of K.I. applies
here. Because the FEHA’s attorney fee provision does not explicitly contemplate
recovery of attorney fees incurred at the administrative level, plaintiff is not entitled to
those fees.
In K.I., a recipient of public benefits challenged a public agency’s decision
limiting the number of hours per month of in-home support services he was entitled to.
The recipient was required to pursue an (unsuccessful) administrative challenge before
he was able to pursue a (successful) writ of mandate action in the superior court. The
trial court awarded attorney fees, but not for work performed in connection with the
administrative hearing. (K.I. v. Wagner, supra, 225 Cal.App.4th at pp. 1415-1418, 1424
(K.I.).)
The appellate court affirmed, explaining the relevant statute authorizing prevailing
party attorney fees was “silent regarding the recovery of attorney fees in administrative
13 Plaintiff seeks attorney fees for (i) “preparation for, and appearance at” a one-day
administrative hearing regarding plaintiff’s WPA claim, which occurred in 2014 and
(ii) the mandatory filing of administrative complaints in connection with claims she
pursued in her civil action.
26
proceedings,” and “[c]ourts do not generally presume that the statutory phrase
‘reasonable attorney fees’ includes fees incurred at an administrative hearing. . . .
Instead, when the Legislature wants to permit the recovery of expenses or attorney fees
for administrative hearings, it has done so explicitly. [Citations.]” (K.I., supra,
225 Cal.App.4th at p. 1423.)
Here, as in K.I., while exhaustion of administrative remedies was required before
plaintiff filed her civil action (Pollock v. Tri-Modal Distribution Services, Inc. (2021)
11 Cal.5th 918, 931), the relevant statute— Government Code section 12965, subdivision
(c)— does not explicitly provide for attorney fees for time spent pursuing administrative
remedies. Therefore, we conclude plaintiff is not entitled to attorney fees for time spent
on presuit administrative proceedings.14
C. Travel Time for Court Conferences
Plaintiff contends the trial court abused its discretion by disallowing some attorney
travel time. We disagree.
Plaintiff asserts two cases “have rejected the trial court’s finding that the attorney
should have appeared by telephone”: Roe v. Halbig (2018) 29 Cal.App.5th 286 (Roe)
and MBNA America Bank, N.A. v. Gorman, supra, 147 Cal.App.4th Supp. 1. Not so.
Roe states that “attorney fees for travel hours may be awarded if the court determines they
were reasonably incurred.” (Roe, at p. 312, italics added.) MBNA America Bank, N.A. v.
Gorman states that the trial court “had a reasonable basis to find that the [number of
attorney fees] hours” it awarded “was time reasonably spent on th[e] matter,” including
“preparation for and attending hearings.” (MBNA America Bank, at pp. 12-13.)
14 To the extent plaintiff was entitled to attorney fees under Code of Civil Procedure
section 1021.5, she may have been entitled to fees incurred at the administrative level.
But here, the trial court ruled plaintiff was not entitled to attorney fees under Code of
Civil Procedure section 1021.5. That ruling, along with the holding of K.I., precludes
plaintiff’s recovery of attorney fees incurred at the administrative level.
27
Neither case, by itself, and without further argument from plaintiff, compels the
conclusion the trial court abused its discretion when it declined to order recovery for
Shepardson’s hours spent on “travel to and from routine case management conferences
which could have been handled more economically by Court Call.” (Cf. Gorman v.
Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101 (Gorman) [“[a] reduced
award might be fully justified by a general observation that an attorney overlitigated a
case,” especially when a trial court is “confronted with hundreds of pages of legal
bills”].)
Plaintiff’s remaining contentions on this issue are forfeited because they are not
supported by citations to the record.
D. Clerical Work
Citing numerous federal cases, including Moreno v. City of Sacramento (9th Cir.
2008) 534 F.3d 1106, plaintiff contends the trial court abused its discretion by
disallowing attorney fees for clerical work. But this federal authority “is not based on
principles applied in California.” (Mikhaeilpoor v. BMW of North America, LLC (2020)
48 Cal.App.5th 240, 250.)
As plaintiff observes, “[s]ecretarial and paralegal services are includable in fee
awards.” (See Salton Bay Marina, Inc. v. Imperial Irrig. List. (1985) 172 Cal.App.3d 914,
951.) But California authority permits a trial court to disallow attorney rates for clerical
work. (See Save Our Uniquely Rural Community Environment v. County of San
Bernardino (2015) 235 Cal.App.4th 1179, 1186-1187 [the trial court “could reasonably
have determined that billing at partner rates for” “some work that appears . . . to be
clerical” was “excessive”].)
Plaintiff contends the trial court’s “outright denial” of recovery for ministerial
tasks performed by Shepardson was an abuse of discretion because “somebody had to do
the work.” If plaintiff wanted recovery at “[s]ecretarial [or] paralegal” rates, she should
have claimed the work properly. (See Mountjoy v. Bank of America, N.A. (2016)
28
245 Cal.App.4th 266, 280 [“It is the obligation of the party (and attorney) seeking the fee
award ‘to prune the fee request to comply with the law,’ and the party (and attorney)
cannot ‘transfer that responsibility onto the trial court.’ ”].)
E. Client Conferences
Plaintiff appears to contend the trial court abused its discretion by disallowing
recovery for attorney time spent in “conferences with” plaintiff, who “was a de facto
paralegal or even quasi second chair attorney.” Other than the trial court’s ruling
disallowing attorney fees for “[c]onferring with a client about newspaper articles of
general interest,” it is unclear what ruling plaintiff might be referring to.
Thus, this claim is forfeited because it not supported with citations to the record in
the opening brief.15
F. Duplication
Citing Rogel v. Lynwood Redevelopment Agency (2011) 194 Cal.App.4th 1319,
1330, plaintiff contends the trial court abused its discretion by making “general findings
of duplication” because “general statements of ‘excessiveness’ or ‘duplication’ are not
sufficient . . . .” We do not read Rogel as standing for the proposition asserted. In any
event, we agree with Gorman that “a reduced award might be fully justified by a general
observation that an attorney overlitigated a case,” especially when a trial court is
“confronted with hundreds of pages of legal bills.” (Gorman, supra, 178 Cal.App.4th at
p. 101.) Such was the case here.
G. Public Benefit
Defendant appears to contend that, because her action “benefit[ed] [the] public
interest,” the trial court abused its discretion in disallowing recovery for some of
Shepardson’s time. Plaintiff asserts her case (a) “resulted in the discovery of two
15 Argument on this issue in plaintiff’s reply brief with citations to the record comes
too late and is forfeited.
29
different porn-rings,” (b) “caused the[ ] departures” of defendant’s senior leadership,
(c) “caused” defendant to create “a new reporting line for sexual harassment,” and
(d) “saved the taxpayers tens of millions of dollars” and “made our state computer
systems less susceptible to cyberattacks from . . . hostile foreign agents . . . .”
This contention is forfeited because it is unsupported by citations to the record.
Further, we note that if we were to consider the merits of this contention, we would reject
it, as the public benefit of litigation is irrelevant to the calculation of a lodestar figure.
(Cf. Mountjoy v. Bank of America, N.A., supra, 245 Cal.App.4th at p. 274 [“the factors
the [plaintiffs] contend the trial court ignored are to be taken into account in deciding
whether to apply a multiplier to the lodestar figure,” not calculation of the lodestar per
se].)
Accordingly, we conclude the trial court did not abuse its discretion in its
determination of the reasonable amount of time that Shepardson spent on the case.
IV
Lodestar Multiplier
Plaintiff contends the trial court abused its discretion “by failing to properly
consider the factors for a lodestar multiple.” Specifically, plaintiff argues the trial court
erred regarding: the “huge contingent fee risk” (underscoring & boldface omitted); the
case’s “benefit[ ] [to the] public interest” (boldface omitted); Shepardson’s “missed work
opportunities” (boldface omitted); “the novelty and difficulty of the questions involved
and skill[ ] displayed” (boldface omitted); Shepardson’s “preparation and . . .
[ ]organization.” We conclude there was no abuse of discretion.
A. Contingent Fee Risk
Regarding the contingent fee risk, plaintiff argues “[t]here were long odds against
her prevailing. The long[er] the odds, on a meritorious civil rights case, the greater the
multiplier should be.” The trial court considered this factor, when it recognized both
(i) that “[t]aking the case on a contingent fee basis [was] . . . significant” and (ii) that this
30
“risk . . . was substantially reduced” because Shepardson “did not take th[e] case solely
on a contingency basis” but also “was to be paid an hourly rate.” There was no abuse of
discretion.
B. Public Interest Benefit
Regarding the benefit to the public interest from her case, plaintiff argues that her
“[p]rivate enforcement” of defendant’s “obligat[ions] . . . not [to] engage in improper
government activity” “was in the public interest, as discussed” elsewhere in her opening
brief. It appears plaintiff is referring to her separate claim the trial court erred in ruling
plaintiff was not entitled to recover fees pursuant to Code of Civil Procedure section
1021.5. This argument regarding the lodestar multiplier is forfeited. In any event, we
agree with the trial court’s denial of fees under Code of Civil Procedure section 1021.5.
C. Missed Work Opportunities
Plaintiff argues the trial court “incorrectly reasoned to the false conclusion . . .
Shepardson did not miss other work opportunities because of this case,” because “by
taking this case, [Shepardson] naturally missed . . . other opportunities.”
The trial court ruled Shepardson “failed to substantiate that representation in this
case . . . substantially precluded other work,” as the assertion was “not supported by the
facts.” Plaintiff provides no citation to the record in support of the multiple assertions
she makes in connection with this assignment of error on appeal. Thus, this contention is
forfeited.16
16 Accordingly, we deny as moot defendant’s request for judicial notice of various
court dockets (in order to show that Shepardson “had the ability to take other cases while
this action was pending”).
31
D. Novelty and Difficulty of the Questions Involved
“The trial court incorrectly stated the issues in this case are not new,” plaintiff
contends. Plaintiff’s argument on this point, replete with factual assertions lacking
citations to the record, is forfeited.
E. Skill Displayed by Counsel
Plaintiff contends the trial court “incorrectly opined that . . . Shepardson’s skills
fell far short of ‘exceptional representation.’ ” For support of this contention, plaintiff
observes that Shepardson “persuaded” the trial court on a point of law and that “[a]ll
other attorneys . . . rejected the case.”
Those observations do not establish an abuse of discretion by the trial court, who
recognized that Shepardson, in “obtain[ing] a positive result . . . for [p]laintiff,”
“displayed . . . ‘comparable’ rather than exceptional skills in relation to other attorneys
with similar experience.”
F. Lack of Preparation and Disorganization
Plaintiff argues the trial court “incorrectly concluded that . . . Shepardson
displayed a lack of preparation and was disorganized . . . .” For support of this
contention, plaintiff “refer[s] [us] to the entire [clerk’s] and report[er’s] transcripts -- they
do not support the trial court’s finding.” “It is not the function of this court to comb the
record looking for the evidence or absence of evidence to support defendant[’s]
argument.” (People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 879.) Thus, this
contention is forfeited.
Accordingly, we conclude the trial court did not abuse its discretion in choosing a
multiplier of 1.2.
V
Code of Civil Procedure Section 1021.5
The trial court ruled plaintiff did not meet her burden of “proving a significant
benefit . . . for members of the public,” as “[a]ll damages were requested for [p]laintiff
32
alone,” and there “was no claim for injunctive relief which may have conferred a benefit
on the general public.”
Plaintiff argues she “should recover all her reasonably incurred fees pursuant to
Code of Civil Procedure section 1021.5,” because her “action resulted in the enforcement
of an important public right affecting the public interest.” But plaintiff’s argument does
not address the trial court’s ruling in any way. To the extent the claim is not forfeited for
failure to make adequate argument, it lacks merit.
“Section 1021.5 permits a trial court to award attorney’s fees to a successful party
in any action that ‘(1) enforced an important public right, (2) conferred a significant
public benefit, and (3) is of a type that private enforcement was necessary, and the
financial burden justifies subsidizing the successful party’s attorneys.’ [Citation.]
‘Although the statute is phrased in permissive terms, a court’s discretion to deny
attorney’s fees to a party that meets the statutory requirements of section 1021.5 is
limited. [Citation.] Unless special circumstances would render an award of section
1021.5 fees unjust, fees must be awarded under the statute where the statutory criteria are
met.’ [Citation.]” (Burgess v. Coronado Unified School Dist. (2020) 59 Cal.App.5th 1,
7, italics & fn. omitted.)
The trial court’s reasoning was sound. “ ‘[T]he public always has a significant
interest in seeing that legal strictures are properly enforced and thus, in a real sense, the
public always derives a “benefit” when illegal private or public conduct is rectified. Both
the statutory language (“significant benefit”) and prior case law, however, indicate that
the Legislature did not intend to authorize an award of attorney fees in every case
involving a statutory violation. We believe rather that the Legislature contemplated that
in adjudicating a motion for attorney fees under section 1021.5, a trial court would
determine the significance of the benefit, as well as the size of the class receiving benefit,
from a realistic assessment, in light of all the pertinent circumstances, of the gains which
have resulted in a particular case.’ [Citation.] [¶] In other words, the significant benefit
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requirement of section 1021.5 requires more than a mere statutory violation.” (Burgess v.
Coronado Unified School Dist., supra, 59 Cal.App.5th at p. 9, italics omitted & added.)
Here, the trial court reasonably determined the class of one (plaintiff) benefitting
from plaintiff’s action militated against an award pursuant to Code of Civil Procedure
section 1021.5.17
VI
Costs
A. Legal Backdrop
“The right to recover costs of suit is statutory. [Citation.] [Code of Civil
Procedure] [s]ection 1032, subdivision (b) ‘guarantees prevailing parties in civil litigation
awards of the costs expended in the litigation.’ [Citation.] [Code of Civil Procedure]
[s]ection 1033.5 imposes limits on the recoverable costs a prevailing party may seek,
listing items that are allowable and not allowable as costs under the statute. [Citations.]
Specifically, section 1033.5, subdivision (a) specifies items that are expressly allowable
as costs, and section 1033.5, subdivision (b) lists items for which costs may not be
recovered. ([Code Civ. Proc.,] § 1033.5, subds. (a) & (b).) Section 1033.5 further
provides that costs not specifically permitted under subdivision (a) or foreclosed by
subdivision (b) ‘may be allowed or denied in the court’s discretion.’ ([Code Civ. Proc.,]
§ 1033.5, subd. (c)(4).) Finally, section 1033.5 requires that the costs awarded, whether
expressly allowed under subdivision (a) or awardable in the court’s discretion under
subdivision (c), must be ‘reasonably necessary to the conduct of the litigation rather than
merely convenient or beneficial to its preparation’ ([Code Civ. Proc.,] § 1033.5,
subd. (c)(2)) and also be ‘reasonable in amount’ [citations].
17 We disregard exhibits to the opening brief that plaintiff cites in support of her
contentions that her case conferred a significant public benefit, because plaintiff has not
demonstrated that those materials are part of the record on appeal.
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“ ‘In ruling upon a motion to tax costs, the trial court’s first determination is
whether the statute expressly allows the particular item and whether it appears proper on
its face. “If so, the burden is on the objecting party to show [the costs] to be unnecessary
or unreasonable.” [Citation.] Where costs are not expressly allowed by the statute, the
burden is on the party claiming the costs to show that the charges were reasonable and
necessary.’ [Citation.]
“A costs award is generally reviewed on appeal for abuse of discretion. [Citation.]
‘Whether a cost item was reasonably necessary to the litigation presents a question of fact
for the trial court and its decision is reviewed for abuse of discretion. [Citation.]
However, because the right to costs is governed strictly by statute [citation] a court has no
discretion to award costs not statutorily authorized.’ [Citation.] ‘[W]hen the issue to be
determined is whether the criteria for an award of costs have been satisfied, and that issue
requires statutory construction, it presents a question of law requiring de novo review.’
[Citation.]” (Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 399.)
B. The Ruling
In its January 2019 order, the trial court explained which costs plaintiff was
entitled to recover pursuant to Code of Civil Procedure section 1033.5 including: “filing,
motion, and jury fees”; “taking, video recording, and transcribing necessary depositions”;
“travel expenses to attend depositions”; “service of process”; and “court reporter fees as
established by statute.” (See id., subd. (a)(1), (a)(3)(A), (a)(3)(C), (a)(4), (a)(11).) For
all those costs, the trial court ruled “[t]hese cost items are allowed.” Regarding the court
reporter fees, the trial court explained that it had “received the declaration of Susan
Portale who has charged as court reporter fees the sum of $20,342.00. These cost items
are allowed.”
Regarding “trial transcripts of court proceedings not ordered by the [trial] court”
(italics added)—and though Code of Civil Procedure section 1033.5, subdivision (a)(9)
contemplates only “[t]ranscripts of court proceedings ordered by the court” (italics
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added)—the trial court ruled those costs “were reasonably incurred in this case because
the transcripts were used to impeach witnesses and to clarify rulings by the [trial] court.
The court will allow costs of transcript fees in the amount of $15,426.00.”
The trial court “exercise[d] its discretion” under Code of Civil Procedure section
1033.5, subdivision (a)(16) (to allow costs for any “other item that is required to be
awarded to the prevailing party pursuant to statute as an incident to prevailing in the
action at trial”) by “award[ing] fees incurred by [p]laintiff for expert witnesses Jan Duffy,
Dr. Nacouzzi and Dr. Carey. The fee for HR expert DeGrande will be reduced from
$4,000 to $2,000 because the court [found] it . . . partially duplicative.”
Pursuant to Code of Civil Procedure section 1033.5, subdivision (b)(3), the trial
court did not award costs for “postage, telephone, and photocopying charges.” And
pursuant to subdivision (b)(4) of the statute, the trial court disallowed costs for
“investigation of jurors or in preparation for voir dire,” “including the fee for Truman and
Associates.”
The trial court further ruled: “Attorney’s fees for Dan Siegel are not allowed as
costs. [¶] Costs related to rush fees for Legal Capital Process are not allowed because
the court . . . believes that such rush fees are not reasonably necessary . . . . [¶] Fees for
duplicate billings of the same item are not allowable as costs. [¶] The item for ‘CDR
Rodrigues Depo’ on 2/3/16 is not allowed in the [trial] court[’s] discretion because no
receipt is found for this item and there is insufficient evidence to support this item.”
C. Reporter Fees and Transcript Fees
1. Additional Background
In February 2018, Susan Portale, a certified court reporter, filed an amended
declaration explaining that both parties failed to pay her for her services at trial. Portale
explained defendant owed her: (a) $15,200 for her 32 days of reporting (at a rate of $475
per day, with each party responsible for one-half of Portale’s rate of $950 per day);
(b) $5,142 in “Realtime” charges of “$1.00 per page per side” (with each party
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responsible for one-half the total amount) ; and (c) $7,713 for the trial court’s
“download[ ] [of] the Realtime transcripts” (one-half the total amount of $15,426).
Regarding plaintiff’s counsel, Shepardson, Portale “request[ed] the [c]ourt order
the State of California to directly reimburse [her] . . . out of any [j]udgment payable to the
[p]laintiff the sum of $11,878.00 because [she] [did] not believe [Shepardson] would ever
pay [her].”
At the April 2018 hearing where the trial court and the parties discussed attorney
fees, they also discussed costs. Regarding Portale’s unpaid fees, the trial court informed
the parties it had “allowed [Portale] to intervene,” and she was in attendance. Portale told
the trial court that she “received an e-mail early th[e] morning” of the hearing “that a
check was left” for her at “[her] office or at a neighbor’ s office” for the “outstanding
amounts owed to [her].”
Apparently, that check was from plaintiff.
The trial court queried: “And there was $11,878. You think that would satisfy
your claim?” Portale replied, “I do think so, yes.”
Shepardson explained that “from the plaintiff’s point of view, we paid” what
plaintiff owed to Portale “as a practical matter. So we still dispute that, we protest it, but
we paid it for purposes of this case, and that’s our position.”
2. Analysis
Plaintiff contends the trial court abused its discretion by “only award[ing] reporter
fees of $20,342 and transcript fees of $15,426.00 for a total of $35,768,” even though
plaintiff “paid . . . Portale . . . $42,910.43” “for reporting and transcripts.”
“ ‘It is not the absence of an explanation by the trial court that calls [an] award [of
fees and costs] into question, but its inability to be explained . . . .’ ” (Roe, supra,
29 Cal.App.5th at p. 312.) Thus, if “ ‘there is [an] apparent reasonable basis for the
award in the record,’ ” an appellate court should affirm. (Ibid.)
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Here, there is an apparent reasonable basis for the reporter fee and transcript fee
awards: $15,200 (plaintiff’s 50 percent share of the total of amount of “daily” reporter
fees) plus $5,142 (plaintiff’s 50 percent share of the “Realtime” charges) equals $20,342
(the amount the trial court awarded for “reporter fees”). And the transcript fee award of
$15,426 was the combined amount Portale claimed the parties owed her for “[c]ourt
download of daily transcripts.”
D. Rodrigues Deposition
Plaintiff argues the trial court abused its discretion by disallowing costs for the
Rodrigues deposition, because plaintiff “did provide the documentation for” it.
Defendant argues the opening brief’s citations to the record do not contain the
documentation plaintiff asserts. In her reply brief, plaintiff provides a different citation to
the record.
Because plaintiff failed to support this argument with necessary citations to the
record in her opening brief, we deem this argument forfeited.
E. HR Expert DeGrande
Plaintiff maintains the trial court “incorrectly found . . . DeGrande’s fee to be
duplicative without stating why. . . . Her function was different than HR [e]xpert Duffy,
who testified and was retained after DeGrande.” Defendant argues the trial court
properly determined defendant “should pay for only half of a duplicative expert that
[plaintiff]” chose not to call to the stand.
We agree with defendant that such a determination is within a trial court’s
discretion. (Code Civ. Proc., § 1033.5, subd. (c)(2) [“Allowable costs shall be reasonably
necessary to the conduct of the litigation rather than merely convenient or beneficial to its
preparation.”].)
F. Attorney Dan Siegel
“The trial court erred,” plaintiff contends, “in disallowing attorney Siegel’s $950
in fees,” due to “the incorrect premise that fees are not allowed as costs.” Plaintiff
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correctly observes that Code of Civil Procedure section 1033.5, subdivision (a)(10)
contemplates attorney fees as “ ‘allowable costs.’ ” (See Santisas v. Goodin (1998) 17
Cal.4th 599, 606 [“recoverable litigation costs do include attorney fees, but only when the
party entitled to costs has a legal basis, independent of the cost statutes and grounded in
an agreement, statute, or other law, upon which to claim recovery of attorney fees”].)
But in its order, the trial court did not articulate a broad premise that attorney fees
can never be allowed as costs. Rather, it said attorney fees “for Dan Siegel are not
allowed as costs.” (Italics added.) Given the standard of appellate review, we will not
presume the trial court made a legal error in making that determination. Rather, we will
presume the trial court disallowed Siegel’s fees as a factual matter. (See Benach v.
County of Los Angeles, supra, 149 Cal.App.4th at p. 852.)
Accordingly, we reject this claim.
G. Financial Expert Kevin Lagorio
Plaintiff says it “appears” the trial court “failed to award the expert fees for . . .
Kevin Lagorio who charged $4,000.” But given a trial court’s discretion to award
“reasonably necessary” expert witness fees (Code Civ. Proc., § 1033.5, subd. (c)(2); Gov.
Code, § 12965, subd. (c)), this argument is inadequate to demonstrate reversible error.
(Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at p. 557 [“an
appellant must do more than assert error and leave it to the appellate court to search the
record and the law books to test his claim”].)
H. Discrepancies
Plaintiff contends that the “differential amount between what [she] claimed as
costs . . . and what the court allowed . . . is largely unexplained by the court’s order.”
(Italics added.)
But as we have observed, the absence of an explanation does not demonstrate
reversible error when there is an apparent reasonable basis for an award. Thus, this
argument is inadequate to demonstrate reversible error.
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Plaintiff also contends the sum of costs approved by the trial court is tens of
thousands of dollars more than the total amount of $117,488.60 that the trial court
articulated. Defendant does not address this contention in its briefing.
Though the trial court showed its math when it calculated attorney fees in this case
(articulating awards to five different individuals who worked different numbers of hours
at three different hourly rates), it did not do so regarding costs, ruling on multiple items
simply that “[t]hese costs items are allowed.” Accordingly, plaintiff’s contention appears
to have some merit.
In Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, the
appellate court reversed an order awarding attorney fees and costs after providing the
following observation that is particularly apt here: “[I]t is both parties’ task on appeal to
assist the court in its review of the record, by pointing out those portions of the record
that support their respective positions on the trial court’s exercise of discretion in
deciding the issue presented. Because that task was performed in the appellate briefs we
have received in a somewhat cursory fashion . . . , we have had some difficulty in
evaluating the discretionary ruling before us. . . . Moreover, our task has been
complicated by the terse nature of the trial court’s ruling itself.” (Id. at p. 624.)
Likewise here, in light of the trial court’s terse articulation of costs allowed, and
defendant’s silence on the issue of the potential discrepancy between the actual sum of
all costs approved by the trial court and the trial court’s articulation of that sum, we
reverse the trial court’s articulation of the total costs awarded, and remand for the trial
court to rearticulate the sum of all costs approved in its January 2019 order.
DISPOSITION
Regarding the reasonable hours plaintiff’s counsel Shepardson spent on the case,
and the lodestar multiplier, the order appealed from is affirmed. Regarding the
reasonable hourly rate for Shepardson, the order appealed from is reversed and the matter
is remanded for recalculation of the fee award using an out-of-town rate that the trial
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court determines is reasonable. Regarding costs, the order appealed from is affirmed in
all respects, except for the trial court’s articulation of the sum of the costs awarded. That
aspect of the award is reversed and remanded to the trial court for rearticulation of the
actual sum of the costs it awarded in January 2019. The parties shall bear their own costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
HULL, J.
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