Isom v. McCarthy ( 2023 )

Filed 10/2/23
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
MICHAEL R. ISOM, B317433
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MC025723)
v.
BRANDON T. MACCARTHY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Susan Bryant-Deason, Judge. Affirmed.
McCormick, Barstow, Sheppard, Wayte & Carruth, James
P. Wagoner, and Timothy J. Buchanan for Defendant and
Appellant.
Kuzyk Law and Robert Ryan for Plaintiff and Respondent.
Appellant Brandon T. MacCarthy (MacCarthy) appeals
from a post-judgment order awarding respondent Michael R.
Isom (Isom) attorney fees pursuant to Code of Civil Procedure
section 1021.4.1 MacCarthy argues that the trial court erred by
not reducing the fee award in accordance with the percentage of
Isom’s comparative fault, that the court abused its discretion by
awarding fees that were not supported by sufficient
documentation, that the hourly rate awarded for a first-year
attorney was unreasonable, and that the court applied an
excessive multiplier to the lodestar amount. We disagree with
MacCarthy’s arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Accident and Jury Trial2
Isom and MacCarthy were co-workers, and on June 3, 2014,
left work together in MacCarthy’s vehicle to go to a restaurant.
Isom and MacCarthy stopped at a liquor store to purchase
whiskey and were drinking it on the way to the restaurant,
1 All further references are to the Code of Civil Procedure, unless
otherwise specified.
2 This is MacCarthy’s second appeal from the Superior Court
proceedings. In the first appeal, Case Number B315031, MacCarthy
challenged the jury verdict against him. We previously granted
MacCarthy’s request for judicial notice of: (1) the entirety of the clerk’s
transcript on appeal in Case Number B315031, (2) the entirety of the
reporter’s transcript on appeal in Case Number B315031, and (3) the
admitted trial exhibits made part of the record in Case Number
B315031. Further, we take judicial notice of our opinion of the prior
appeal, Isom v. MacCarthy (July 28, 2023, B317433 [nonpub. opn.]),
affirming the judgment in Isom’s favor. (Evid. Code,§§ 452(d), 459.)
Our summary of the facts relating to the accident and trial is taken
from our prior opinion.
2
where they continued drinking alcoholic beverages. They then
went to MacCarthy’s residence and consumed more alcoholic
drinks. Later that night, they set out in MacCarthy’s vehicle,
intending to go to a gentlemen’s club. While driving with Isom as
his passenger, MacCarthy ran a stop sign, crashed through a
chain link fence into a concrete wash, and hit a culvert. Blood
drawn at the hospital revealed that MacCarthy’s blood alcohol
level was 0.22, and Isom’s was 0.19. MacCarthy was
subsequently charged with felony driving under the influence of
alcohol and causing injury, to which he entered a nolo contendere
plea. Isom was seriously injured, and on September 1, 2015, he
filed his complaint against MacCarthy asserting a single cause of
action for negligence.
Years later, on May 4, 2021, trial commenced and
continued for more than three weeks. Following the trial, the
jury returned its special verdict, finding that MacCarthy was
negligent in causing injury to Isom. Further, the jury assigned
25 percent of responsibility to Isom for his injuries. Isom was
awarded special and general damages totaling $20,636,313.44.
The trial court reduced the award by 25 percent for Isom’s
comparative negligence and entered judgment in the net amount
of $15,477,235.08.
B. The Attorney Fee Award
Isom then moved for attorney fees under section 1021.4,
which allows the court to award a plaintiff attorney fees in
actions based on a defendant’s felony conviction. Isom argued
that the court should award him fees because MacCarthy was
3
convicted of felony driving under the influence of alcohol.3 Isom
sought fees of $6,190,894.03, which were based on the 40 percent
contingency fee in the retainer agreement between Isom and his
counsel, multiplied by the judgment of $15,477,235.08.
MacCarthy opposed the motion, arguing that the request was
improper because it was not based upon the lodestar method and
unreasonable because Isom was found contributorily negligent.
In reply, Isom argued that the request based on the 40 percent
contingency fee was reasonable, and Isom’s lead counsel, Mark J.
Leonardo, submitted a declaration explaining that as a personal
injury plaintiff’s lawyer, he did not keep traditional timesheets
but instead kept track of the cases he worked on each day.
When the motion was first heard on August 18, 2021, the
court indicated that Isom was entitled to attorney fees under
section 1021.4 as the prevailing party. However, the court denied
Isom’s request for an award based solely on the contingency fee in
his retainer agreement with his counsel. The court then
continued the hearing to October 28, 2021, to allow Isom to file a
supplemental brief addressing the number of hours Isom’s
counsel spent working on the case.
Isom filed his supplemental brief with another declaration
from Leonardo and new evidence as to the hours expended on the
case. Leonardo stated that he did most of the work on the case,
spending more than 1,009 hours on it from filing through trial.
3 MacCarthy does not dispute that his nolo contendere plea
constitutes a conviction for purposes of section 1021.4. (See Calvillo-
Silva v. Home Grocery (1998) 19 Cal.4th 714, 725, fn. 9 [“A nolo
contendere plea to a crime punishable as a felony has the same effect
as a guilty plea for all purposes. (Pen. Code, § 1016.) A plea of guilty
constitutes a conviction”], disapproved on other grounds in Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19.)
4
He added that four other attorneys worked on the case for a total
of 180 hours over the years: Tyler Oldham-Monroe (100 hours),
Don Sherwyn (30 hours), Arturo Salinas and John V. Bell
(combined total of 50 hours for both). Leonardo described the
work performed by the other attorneys, and he attached a chart
with descriptions of the tasks he performed and the estimated
time he worked on the case each day. Leonardo further stated
that, given his experience, a reasonable hourly rate for him would
be between $400 to $500 per hour. Finally, Isom requested an
enhancement or multiplier be applied to the lodestar amount but
did not identify what the multiplier should be. In his opposition
to the supplemental brief, MacCarthy asserted that there was
insufficient evidence to support the hours claimed, and he
contended that a multiplier to the lodestar amount was
unjustified. MacCarthy argued that if a multiplier were used,
any multiplier over two would be excessive.
Following argument at the October 28, 2021, hearing,
which was not reported, the court issued a ruling, finding that
Isom’s attorneys’ 1,189.1 claimed hours and a “blended rate” for
Isom’s attorneys of $450 per hour were reasonable (1,189.1 [total
hours] x $450 [hourly rate] = $535,095). The court then
determined that there were grounds to apply a “two-times” (2.0)
multiplier to the lodestar amount due to the risk that plaintiff’s
counsel took in providing legal services without the certainty of
payment. Isom, thus, was awarded $1,070,190 in attorney fees
($535,095 x 2.0 multiplier). MacCarthy timely appealed.
5
DISCUSSION
A. Legal Principles and Standard of Review
In California, the fee setting inquiry begins with the
“‘lodestar,’ i.e., the number of hours reasonably expended
multiplied by the reasonable hourly rate.” (PLCM Group v.
Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM Group).) “The
lodestar figure may then be adjusted, based on consideration of
factors specific to the case, in order to fix the fee at the fair
market value for the legal services provided.” (Ibid.) Whether a
legal basis exists for an attorney fee award is a question of law
that we examine de novo, and we review the amount of fees
awarded for abuse of discretion. (Mountain Air Enterprises, LLC
v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751; San
Francisco CDC LLC v. Webcor Construction L.P. (2021) 62
Cal.App.5th 266, 285.) The court’s factual findings in support of
its determination are reviewed for substantial evidence. (In re
Marriage of Knox (2022) 83 Cal.App.5th 15, 25.)
“‘[A]n experienced trial judge is in a much better position
than an appellate court to assess the value of the legal services
rendered in his or her court, and the amount of a fee awarded by
such a judge will therefore not be set aside on appeal absent a
showing that it is manifestly excessive in the circumstances.’
[Citation.] ‘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.’ [Citation.]” (Loeffler v.
Medina (2009) 174 Cal.App.4th 1495, 1509 (Loeffler).) “‘Fees
approved by the trial court are presumed to be reasonable, and
the objectors must show error in the award.’” (Laffitte v. Robert
Half Internat. Inc. (2016) 1 Cal.5th 480, 488.)
6
B. The Trial Court Was Not Required to Reduce Isom’s
Attorney Fee Award in Accordance with his
Comparative Fault
MacCarthy argues that because the jury found Isom was 25
percent contributorily negligent, the trial court erred as a matter
of law by not reducing Isom’s attorney fee award by the same
percentage. We disagree.
MacCarthy does not dispute that Isom was entitled to a fee
award under section 1021.4. Section 1021.4 provides: “In an
action for damages against a defendant based upon that
defendant’s commission of a felony offense for which that
defendant has been convicted, the court may, upon motion, award
reasonable attorney’s fees to a prevailing plaintiff against the
defendant who has been convicted of the felony.” Nothing in the
statute’s plain language requires a mandatory reduction based on
the percentage of a plaintiff’s comparative fault. (See DeNike v.
Mathew Enterprise, Inc. (2022) 76 Cal.App.5th 371, 384 [“‘[T]he
words of a statute are generally the most reliable indicator of
legislative intent’”]; see also Moniz v. Adecco USA, Inc. (2021) 72
Cal.App.5th 56, 79 [“we will not read a requirement into a statute
that does not appear therein”].)
Furthermore, MacCarthy acknowledges that there is no
case law supporting a mandatory reduction of awarded fees
where the plaintiff has been found contributorily negligent. (See
Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379,
1398 [“while the degree of the plaintiff’s success in obtaining the
objectives of the litigation is a factor that the trial court may
consider in determining an award of reasonable attorney fees
under a fee statute [citations], . . . we determine that there is no
7
requirement that the trial court make an award of attorney fees
in an amount that is commensurate with or in proportion to the
degree of success in the litigation”].) Instead, a victim’s fault “is
merely a factor for the trial court to consider in its discretion to
award [fees under section 1021.4].” (Sommers v. Erb (1992) 2
Cal.App.4th 1644, 1650 (Sommers) [affirming attorney fee award
under section 1021.4 to plaintiff in case against felony drunk
driver, even though plaintiff was also intoxicated at time of
accident], citing Wood v. McGovern (1985) 167 Cal.App.3d 772,
779 [factors for the trial court to consider in exercising its
discretion to award fees under section 1021.4 include the victim’s
fault].)
MacCarthy argues that Sommers does not apply here
because it did not involve a determination of the plaintiff’s fault.
In Sommers, a motorcyclist was injured when he collided with a
pick-up truck driven by the defendant. (Sommers, supra, 2
Cal.App.4th at p. 1646.) The defendant was convicted of a felony
count of causing great bodily injury while driving under the
influence. (Ibid.) The parties filed a stipulated judgment in favor
of the motorcyclist and expressly left open the issue of attorney
fees for resolution by the trial court. (Id. at p. 1647.) After
moving for attorney fees under section 1021.4, the trial court
awarded the motorcyclist his requested fees. (Ibid.) The
defendant challenged the award, in part, on the ground that the
motorcyclist was a “non-innocent victim” because he was also
driving under the influence at the time of the accident. (Ibid.)
The Court of Appeal upheld the award. (Id. at p. 1652.) While
MacCarthy contends that Sommers is distinguishable because
there was no jury finding of comparative fault, there also was no
holding that a fee award must be reduced in proportion to
8
comparative fault. Sommers considered the motorcyclist’s
intoxication and found that his “fault . . . or even his criminal
behavior . . . [was] not a bar to recovery of attorney’s fees under
section 1021.4.” (Id. at p. 1650.) Such factors are for the trial
court to consider in its discretion to award fees. (Ibid.)
We also find MacCarthy’s reliance on People v. Millard
(2009) 175 Cal.App.4th 7 (Millard), unpersuasive. In Millard,
after the defendant was found guilty of driving under the
influence and causing great bodily injury to another person
following an accident with a motorcyclist, the motorcyclist was
awarded victim restitution pursuant to Penal Code
section 1202.4. (Id. at p. 19.) The court weighed the evidence
and determined that the motorcyclist was 25 percent
comparatively at fault for the accident, and so the court
concluded the restitution amount for his economic losses should
be reduced by 25 percent to reflect his comparative negligence.
(Ibid.) The People appealed this order, but it was affirmed.
(Id. at pp. 20, 41.) Millard adopted Sommers’s reasoning and
held that a trial court could consider a victim’s comparative
negligence in making a restitution order; however, it did not hold
that a reduction was mandated based on the percentage of a
victim’s comparative fault.4 (Id. at pp. 40–42.)
4 MacCarthy further cites to Baker v. Mid-Century Ins. Co. (1993)
20 Cal.App.4th 921 (Baker), in arguing that Isom should not be
allowed to recover attorney fees to the extent he was found liable for
his injuries. In Baker, the plaintiff sought to hold an insurance
company liable for payment of attorney fees the plaintiff obtained
under section 1021.4 against the insurance company’s insured. (Id. at
p. 922.) The insurer had no obligation to pay the fees because the risk
of liability for fees under section 1021.4 is uninsurable. (Id. at
pp. 922–923, 926.) These issues concerning the payment of fees by an
insurer are not before us, and thus, Baker is inapposite.
9
Accordingly, the trial court was not required as a matter of
law to reduce Isom’s attorney fee award by the percentage he was
determined to be at fault. His fault was instead a factor for the
court to consider in its discretion to award fees.5
C. MacCarthy Does Not Establish that the Trial Court
Abused its Discretion
MacCarthy argues the trial court abused its discretion by
(1) failing to consider Isom’s comparative fault in setting the
amount of a reasonable fee, (2) accepting insufficient
documentation of the time spent working on the case,
(3) awarding the rate of $450 per hour for the work of a first-year
associate, and (4) applying a 2.0 multiplier to the lodestar
amount. We conclude MacCarthy does not demonstrate that the
trial court abused its discretion.
1. The Record Indicates the Trial Court Considered
Isom’s Comparative Fault
As to MacCarthy’s contention that the trial court did not
consider Isom’s comparative fault, the record shows otherwise.
The court’s October 28, 2021, minute order begins by recognizing
that “[t]he jury apportioned 25 [percent] of the fault to [p]laintiff.”
It states that the court considered all documents relating to the
motion, and in the original and supplemental briefs, the parties
argued extensively about the effect Isom’s contributory
5 As an alternative argument, MacCarthy asserts that even if the
25 percent reduction was not mandated, the court abused its discretion
by failing to consider Isom’s comparative negligence in setting the
amount of a reasonable fee. We address this and MacCarthy’s other
abuse of discretion claims below.
10
negligence should have on a fee award. The order further
acknowledges Sommers’s holding that the fault of the victim is a
factor for the trial court to consider when exercising its discretion
to award attorney fees. (Sommers, supra, 2 Cal.App.4th at
p. 1650.)
While the parties dispute whether the court considered
Isom’s comparative fault at the October 28, 2021, hearing,
MacCarthy did not provide a reporter’s transcript of the hearing.
Thus, we presume the court considered Isom’s fault in setting the
fee award. (See Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“‘In
the absence of a contrary showing in the record, all presumptions
in favor of the trial court’s action will be made by the appellate
court’”]; see also Rhule v. WaveFront Technology, Inc. (2017) 8
Cal.App.5th 1223, 1128–1229 [presuming fee order was correct,
where appellant’s failure to provide record of fee hearing
deprived appellate court of knowledge concerning trial court’s
reasoning, notwithstanding court’s issuance of written ruling].)
Because the record does not show that the trial court failed to
take Isom’s comparative fault into account at the hearing or
otherwise, we cannot conclude the court abused its discretion.
(See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296 [claim
will be resolved against party challenging attorney fee if they do
not provide adequate record]; see also Vo v. Las Virgenes
Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [affirming
judgment because the record was inadequate to conclude the trial
court abused its discretion in determining the attorney fee was
reasonable].)
11
2. The Fee Award was Supported by Substantial
Evidence
To the extent MacCarthy asserts that Isom’s counsel’s
declaration submitted with the supplemental brief should have
been deemed inadmissible, the record does not show, and
MacCarthy does not contend, that he objected to the declaration’s
admissibility in any respect. By failing to object, MacCarthy
forfeited this claim. (Evid. Code, § 353; In re Marriage of Kerry
(1984) 158 Cal.App.3d 456, 466 [“Even if the affidavit in support
of a motion . . . contains hearsay, legal conclusions or other
objectionable contents, failure to object on these grounds in the
trial court waives the defects, and the affidavit becomes
competent evidence”].)
MacCarthy further contends that the evidence submitted
with Isom’s request for attorney fees did not support the award.
Isom’s counsel, Leonardo, filed a declaration with the moving
papers providing that he worked on this case for six years and
nine months, which included conducting written discovery,
numerous depositions, opposing MacCarthy’s motion for
summary judgment, arguing 25 motions in limine, and, including
jury selection, a 17-day trial. With the reply, Leonardo stated
that “[a]s a personal injury plaintiff’s lawyer, [he] d[id] not keep
time sheets in the traditional sense as an attorney would if he or
she were billing by the hour,” but he submitted a chart reflecting
the days that he worked on the case. Thereafter, Leonardo filed
the declaration with Isom’s supplemental brief estimating the
time expended by himself and the four other attorneys on the
case, and a more detailed chart describing the tasks, with time
estimates, that Leonardo worked on each day.
12
“The law is clear [ ] that an award of attorney fees may be
based on counsel’s declarations, without production of detailed
time records.” (Raining Data Corp. v. Barrenechea (2009) 175
Cal.App.4th 1363, 1375; see also Steiny & Co. v. California
Electric Supply Co. (2000) 79 Cal.App.4th 285, 293 [“attorney’s
testimony as to the number of hours worked is sufficient evidence
to support an award of attorney fees, even in the absence of
detailed time records”].) The court reviewed Leonardo’s
declaration detailing the hours he and the other attorneys spent
on this case, and the chart listing the work performed and
estimated time spent on each task. It found the evidence credible
and sufficient to show the attorneys spent a total of 1,189.1 hours
on this case.
While MacCarthy makes much of Leonardo’s initial
statement that he could not ascertain the exact number of hours
worked on the case because he does not keep itemized timesheets,
Leonardo’s subsequent declaration contained his estimated time
spent on the case, along with a description of the work
performed.6 Regarding MacCarthy’s contention that the entries
are in block billing format, “block billing is not objectionable ‘per
se.’” (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811,
830.) The court expressly determined the hours claimed were a
“reasonable amount of time to spend on a case that was filed on
September 1, 2015[,] and went to trial on May 5, 2021.” The trial
court had sufficient information before it to make this
determination. (Building a Better Redondo, Inc. v. City of
6 At the August 18, 2021, hearing, Leonardo explained to the
court that he could look at the descriptions of work that he put on his
daily timesheets to estimate how much time he worked on the case
each day.
13
Redondo Beach (2012) 203 Cal.App.4th 852, 874 [“It is not our
role . . . to second-guess the trial court on such matters as
whether the hours expended are justified by the product
produced . . . . The trial court was fully cognizant of the quality
of the services performed, the amount of time devoted to the case
and the efforts of counsel”].) We conclude the court did not abuse
its discretion when it based the attorney fee award on the
information in the chart and Leonardo’s declaration.
3. The Use of a Blended $450 Hourly Rate for Isom’s
Counsel was Not an Abuse of Discretion
In his declaration submitted with the supplemental brief,
Leonardo asserted that given his experience and success on the
case, a reasonable hourly rate would be between $400 to $500 per
hour. Leonardo added that he and three other attorneys who
worked on the case–Salinas, Bell, and Sherwyn–each had more
than 30 years’ experience practicing law. The final attorney
working on the case, Oldham-Monroe, was a first-year associate
responsible for less than 10 percent of the total hours used to
calculate the lodestar amount. MacCarthy has no issue with a
$450 hourly rate for Leonardo, Salinas, Bell, and Sherwyn, but
he argues there was no evidence to support the rate for Oldham-
Monroe as a first-year associate.
What constitutes a “reasonable hourly rate” depends on the
“experience, skill, and reputation of the attorney requesting fees.
[Citation.]” (Heritage Pacific Financial, LLC v. Monroy (2013)
215 Cal.App.4th 972, 1009, (Heritage Pacific).) It is generally the
rate “prevailing in the community for similar work,” which can
then be adjusted based on factors that are specific to the case.
(PLCM Group, supra, 22 Cal.4th at p. 1095.) However, “[t]he
14
court may rely on its own knowledge and familiarity with the
legal market in setting a reasonable hourly rate.” (Heritage
Pacific, supra, 215 at p. 1009.)
The court found not that $450 was a reasonable rate
specifically for Oldham-Monroe, but that a blended rate of $450
was reasonable for Isom’s attorneys to bill on this case based on
the court’s own “experience and knowledge of reasonable rates.”
Notably, MacCarthy did not submit evidence of current rates
contradicting the court’s blended rate for Isom’s attorneys. As
Isom asserts, the trial court may have found $500 per hour
reasonable for Isom’s four attorneys with over 30 years’
experience but set a reduced blended rate to account for Oldham-
Monroe’s experience, as Oldham-Monroe’s total time working on
the case was a small percentage of the hours used to calculate the
lodestar amount. Moreover, the court’s written ruling shows that
it considered many factors in making the fee award, including the
experience of the requesting attorneys and its own knowledge of
the legal market. (See PLCM Group, supra, 22 Cal.4th at p. 1096
[“‘The value of legal services performed in a case is a matter in
which the trial court has its own expertise’”]; see also Heritage
Pacific, supra, 215 Cal.App.4th at p. 1009 [court may rely on its
own familiarity with the local legal market in setting the hourly
rate].) Accordingly, MacCarthy does not establish that the court
abused its discretion by setting a $450 blended hourly rate for
Isom’s attorneys. (Premier Medical Management Systems, Inc. v.
California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 557
[“[A]n abuse of discretion transpires if ‘“the trial court exceeded
the bounds of reason”’ in making its award of attorney fees”]; see
also Olson v. Cohen (2003) 106 Cal.App.4th 1209, 1217 [“We will
15
reverse [an award of attorney fees] only if the amount awarded is
so large or small that we are convinced it is clearly wrong”].)
4. The Court Did Not Abuse Its Discretion in Awarding
a 2.0 Multiplier
MacCarthy argues that the use of a 2.0 multiplier based
solely on the contingent nature of Isom’s fee arrangement with
his counsel was an abuse of discretion. The purpose of a fee
enhancement, or multiplier, is “primarily to compensate the
attorney for the prevailing party at a rate reflecting the risk of
nonpayment in contingency cases as a class.” (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1138 (Ketchum).) Factors that the court
may consider in adjusting the lodestar include “(1) the novelty
and difficulty of the questions involved, (2) the skill displayed in
presenting them, (3) the extent to which the nature of the
litigation precluded other employment by the attorneys, [and]
(4) the contingent nature of the fee award.” (Id. at p. 1132.)
“There is no magic formula; any one factor may justify an
enhancement.” (Sonoma Land Trust v. Thompson (2021) 63
Cal.App.5th 978, 986; see also Krumme v. Mercury Ins. Co. (2004)
123 Cal.App.4th 924, 947 [“‘There is no hard-and-fast rule
limiting the factors that may justify an exercise of judicial
discretion to increase or decrease a lodestar calculation.’
[Citation.] There are numerous such factors, and their
evaluation is entrusted to a trial court’s sound discretion; any one
of those factors may be responsible for enhancing or reducing the
lodestar”].)
In his supplemental brief, Isom requested a multiplier be
applied to the lodestar amount but did not identify the multiplier
to be used. In opposition, MacCarthy argued that Isom’s attorney
16
fee award should not be enhanced, but if it was, a multiplier of no
more than 2.0 should be used. The trial court adopted
MacCarthy’s suggestion. While the trial court noted that there
was “no evidence that the questions in this case were novel or
difficult, that there was extraordinary skill displayed, or that
other employment was precluded,” Isom’s attorneys were working
under a contingent fee arrangement, which provided a basis for
increasing compensation to the lawyers who risked never getting
paid.
MacCarthy does not dispute that the contingent nature of
Isom’s fee arrangement alone was sufficient to justify the use of a
multiplier. (Sonoma Land Trust v. Thompson, supra, 63
Cal.App.5th at p. 986; Krumme v. Mercury Ins. Co., supra, 123
Cal.App.4th at p. 947.) Further, MacCarthy does not cite any
authority holding that the 2.0 multiplier, which MacCarthy
suggested, constitutes an abuse of discretion in this case. (See
Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255
[“Multipliers can range from 2 to 4 or even higher”], disapproved
on another point in Hernandez v. Restoration Hardware, Inc.
(2018) 4 Cal.5th 260.) The cases that MacCarthy relies on to
argue that a multiplier of no more than 1.2 should have been
used do not hold that a higher multiplier is improper. (See e.g.,
Pulliam v. HNL Automotive Inc. (2021) 60 Cal.App.5th 396, 408–
409; Sonoma Land Trust v. Thompson, supra, at p. 978; Building
a Better Redondo, Inc. v. City of Redondo Beach, supra, 203
Cal.App.4th at p. 852.) They simply do not address the issue.7
7 While MacCarthy asserts that “no case has been located in
which a court applied a 2.0 multiplier and which was affirmed on
appeal for any reason,” our research has shown that such cases exist.
(See e.g., Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 66 [“we are
(Fn. is continued on the next page.)
17
(In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [“‘It is
axiomatic that cases are not authority for propositions not
considered’”].)
Isom’s attorneys risked receiving no compensation for the
six years of work they put into the case. It is recognized that an
enhanced fee is appropriate to compensate attorneys for taking
such risks: “‘A contingent fee must be higher than a fee for the
same legal services paid as they are performed. The contingent
fee compensates the lawyer not only for the legal services he
renders but for the loan of those services. . . . [Citation.]’ ‘A
lawyer who both bears the risk of not being paid and provides
legal services is not receiving the fair market value of his work if
he is paid only for the second of these functions. If he is paid no
more, competent counsel will be reluctant to accept fee award
cases.’ [Citations.]” (Ketchum, supra, 24 Cal.4th at pp. 1132–
1133.) Indeed, the court’s ruling acknowledges the length of the
case and the fact that Isom’s attorneys litigated this action at
risk of never receiving compensation.8
not persuaded that the 2.5 multiplier that class counsel are to receive
is so out of line with prevailing case law as to constitute an abuse of
discretion”], citing City of Oakland v. Oakland Raiders (1988) 203
Cal.App.3d 78 [affirming a multiplier of 2.34]; Santana v. FCA US,
LLC (2020) 56 Cal.App.5th 334, 351–354 [application of 2.0 multiplier
was not abuse of discretion].)
8 Regarding MacCarthy’s contention that a reduced multiplier is
warranted because Isom’s counsel submitted evidence of block billing,
as analyzed above, the evidence was sufficient to support the fee
award. To the extent that MacCarthy contends that the trial court did
not sufficiently consider the multiplier at the hearing, without a
transcript, the record does not affirmatively show that the trial court
failed to analyze any relevant factors in selecting the multiplier.
18
On this record, we do not find that the award is manifestly
excessive or that it shocks the conscience. (Loeffler, supra, 174
Cal.App.4th at p. 1509.)9
D. Attorney Fees on Appeal
Isom contends he is entitled to recover attorney fees
incurred on appeal, which MacCarthy does not dispute in his
reply. We agree. (Morcos v. Board of Retirement (1990) 51 Cal.3d
924, 929–930 [attorney fees authorized by statute include
attorney fees on appeal].) “‘“Although this court has the power to
fix attorney fees on appeal, the better practice is to have the trial
court determine such fees.”’” (SASCO v. Rosendin Electric, Inc.
(2012) 207 Cal.App.4th 837, 849.) We, therefore, remand the
matter for the trial court to determine, on appropriate motion,
the amount of fees.
9 Because we find no error, we do not address Isom’s argument
that any error concerning the multiplier was invited by MacCarthy’s
arguments in the trial court that any multiplier over 2.0 was
unwarranted.
19
DISPOSITION
The order is affirmed. Respondent, Isom, shall recover his
attorney fees and costs incurred on appeal.
MORI, J.
We concur:
CURREY, P. J.
COLLINS, J.
20