Hughes v. State

• Decision Date: 25 May 2016
• Docket Number: B259492
• Parties: CHARLES HUGHES, Plaintiff and Appellant, v. STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

CHARLES HUGHES, Plaintiff and Appellant, v. STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONSAND REHABILITATION et al., Defendants and Respondents.

B259492

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

May 25, 2016

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC355143)

APPEAL from an order of the Superior Court of the County of Los Angeles, Terry Green, Judge. Affirmed.

Law Office of Stephen J. Horvath, Stephen J. Horvath and Marcus J. Berger, for Plaintiff and Appellant.

Benedon & Serlin, Douglas G. Benedon and Kelly R. Horwitz, for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Christopher Knudsen, Senior Assistant Attorney General, Gary S. Balekjian, Supervising Deputy Attorney General, Gabrielle H. Brumbach and Bruce Reynolds, Deputy Attorneys General, for Defendant and Respondent.

INTRODUCTION

Plaintiff and appellant Charles Hughes (plaintiff) appeals from the trial court's order granting, in part, his motion for an award of attorney fees and costs incurred on appeal (fee motion). According to plaintiff, the trial court erred in determining the fee motion because it subjectively selected a total amount of fees to award instead of following the required lodestar adjustment method. Plaintiff further contends that the trial court abused its discretion by: arbitrarily reducing by 25 percent the number of hours expended by his attorneys on appeal; failing to select market hourly rates for his attorneys; and refusing to adjust the lodestar amount upward by the requested 1.5 multiplier. Plaintiff also contends that the trial court erred by failing to rule on his requests for paralegal fees and costs incurred on appeal.

We hold that the record of the hearing on the fee motion demonstrates that the trial court followed the lodestar adjustment method in determining the fee award and that the court did not abuse its discretion in selecting hourly rates for plaintiff's attorneys. We further hold that plaintiff waived his appellate contentions concerning the trial court's 25 percent reduction in the number of hours expended by his attorneys and the trial court's failure to rule on his requests for paralegal fees and costs. We therefore affirm the trial court's order granting, in part, the fee motion.

BACKGROUND

A. Department's Appeal from Judgment

Following the entry of judgment on a $1,670,393.37 jury verdict in favor of plaintiff, defendant and respondent the Department of Corrections and Rehabilitation (Department) filed an appeal from the judgment. The parties briefed the issues on appeal thoroughly, and, in January 2014, we issued an unpublished opinion affirming the judgment. On April 3, 2014, the remittitur was filed in the trial court.

B. Fee Motion

1. Motion and Supporting Evidence

Following remittitur, plaintiff filed the fee motion. The motion requested attorney fees, before adjustment, of $516,908.25, and a multiplier of 1.5, for a total fee award of $773,089.50. According to plaintiff, his two appellate specialists (attorneys Benedon and Serlin), his two trial counsel (attorneys Horvath and Berger), and his two paralegals had expended a total of 1010.1 hours responding to the appeal. Plaintiff sought a $650 hourly rate for his appellate specialists, a $400 hourly rate for his trial attorneys, and a $145 hourly rate for his paralegals. Plaintiff also sought $5,219.63 in costs incurred on appeal.

2. Opposition and Supporting Evidence

The Department filed an opposition to the fee motion supported by, inter alia, the expert declaration of attorney Andre Jardini. Jardini opined that plaintiff's attorneys had been fully compensated for their appellate work because they had agreed to accept $200 per hour for that work from plaintiff's union. In the alternative, based on his review of a market survey of attorney salaries, Jardini concluded that "an attorney rate of $350 would more than adequately compensate plaintiff's counsel for their appellate work."

Jardini also concluded that the attorney hours billed for the appeal were excessive. He calculated that of the 1000 hours billed, only 586.90 hours were appropriate. For example, he opined that appellate specialist Benedon appropriately billed 117 hours to review the record, but trial attorney Horvath inappropriately billed an additional 105 hours to review the same record.

Jardini further concluded that the requested multiplier was not warranted under the circumstances. According to Jardini, a multiplier was not warranted because plaintiff's attorneys were paid by the hour, not on a contingent basis, and because the "fee award [would] ultimately fall upon the taxpayers."

As for the requested costs, Jardini recommended that no costs be awarded because plaintiff had not submitted an itemized cost bill and the costs requested were not limited to "recoverable costs."

3. Reply Brief

In his reply brief, plaintiff agreed to a few of the time reductions identified in the opposition, seeking compensation for 951.70 hours rather than the 1010.1 hours requested in the motion. Plaintiff argued that his attorneys should be compensated for their work at a rate calculated under the lodestar method, not at the rate they agreed to accept from plaintiff's union. He also maintained that a reasonable hourly rate for his appellate specialists should be their normal and customary rate of $650 per hour and that a $400 per hour rate for his trial counsel was justified because of the higher market value of appellate work.

Plaintiff further argued that the multiplier was warranted because the payment by the union only partially reduced the risk to his attorneys. Plaintiff explained that if he had lost the appeal, his attorneys would have lost the value of their regular hourly rates above the $200 per hour paid by the union.

In addition, plaintiff argued that he had not waived his right to costs. According to plaintiff, because his costs were authorized under FEHA (Gov. Code § 12965, subd. (b)), his cost motion was an appropriate mechanism for recovering such costs.

C. Trial Court's Ruling

At the hearing on the fee motion, the trial court informed the parties that it had decided to award a number of attorney hours that was 25 percent below that sought byplaintiff, a total of 713 hours.¹ The trial court then advised the parties that it had determined a reasonable hourly rate for each of the four attorneys: the appellate specialists, Benedon and Serlin, were each assigned an hourly rate of $300; trial attorney Horvath was also assigned a $300 rate; and trial attorney Berger was assigned a $250 rate. The trial court's comments indicated that it had multiplied each attorney's hours by his adjusted hourly rate; for example, the court noted that an increase in Benedon's hourly rate "would be a substantial upward adjustment [b]ecause he had 298 hours." Based on its determination of the reasonable hourly rates for plaintiff's attorneys and the reasonable number of hours expended in responding to the appeal, the trial court calculated a total reasonable fee award of $200,545.

In response to the trial court's calculation of the attorney fee award, plaintiff's appellate specialist stated that he "certainly under[stood the trial court's] 25 percent reduction of the fees. That's . . . squarely within [the trial court's] discretion. [¶] . . . [¶] Certainly, if you find we spent too [many] hours, that's understandable. There was [an] overlap of work." Plaintiff's trial counsel reaffirmed later in the hearing that plaintiff was not "arguing about [the trial court] cutting [the hours claimed by plaintiff by] 25 percent . . . ."

During argument, in response to plaintiff's counsel's contention that the appellate specialists were entitled to their standard hourly rate of $650, the trial court explained: "Well, then let's work backwards. . . . This is an appeal. I have to award reasonable attorney's fees, middle-of-the-bell curve attorney's fees. This is an appeal from a successful plaintiff's jury verdict. And it's a sophisticated matter. . . . [¶] But there's nothing new on appeal. I mean, the law hasn't changed, the facts haven't changed . . . .Nothing's really changed. [¶] [W]orking backwards, . . . let's talk [about] the $200,000 [award]. [That] sum to me seemed like a reasonable sum of money, okay? Now you say I should go back and look at this in its component parts, but ultimately, I have to award a sum of money that I think is reasonable. [¶] [T]he . . . $200,545 is a sum of money that I think is reasonable. Now, for all the reasons I said, this is a sophisticated appeal. It had all kinds of efforts that went into it, but I don't know that a bigger sum would be justified."

Notwithstanding the trial court's assertion that the total amount of the award was a reasonable sum, the court confirmed at the end of the argument (as it had stated at the beginning) that it had arrived at that sum by determining the reasonable hourly rates for the attorneys involved and the reasonable amount of hours that should have been expended on the appeal. According to the trial court, it had "look[ed] at all the component [parts] — of course, I looked at the component parts. How else do you do it? But I just think $200,545 is a reasonable sum to expect somebody else to pay as attorney's fees for the appeal in this case, given the unique facts of this case, given the excellent competition you're up against . . . . [¶] I just think $200,000 is a lot of money for an appeal of a case."

DISCUSSSION

A. Standard of Review

The parties disagree on the standard of review that governs our disposition of this appeal. Citing to our decision in Chodos v. Borman (2014) ...