Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV022210
Jones, P.J.
In Smith v. Novato Unified School Dist. (2007) 150 Cal.App.4th 1439 (Smith I), this court held that the Novato Unified School District (the District) violated Education Code section 48907 — which guarantees student free speech rights in public schools — when it responded to a controversial editorial written by Novato High School Student Andrew Smith (Smith). (Smith I, supra, at pp. 1445-1446.)
Following this court’s decision in Smith I, Smith and his father, Dale (collectively plaintiffs) sought $1.49 million in attorney fees — enhanced by a multiplier of 2.0 — pursuant to Code of Civil Procedure section 1021.5. The trial court awarded plaintiffs’ counsel $336,350 in attorney fees. In doing so, the court reduced the lodestar and declined to enhance it with a multiplier. The court also rejected plaintiffs’ request for interest to accrue on their fee award.
Unless otherwise noted, all further statutory references are to the Code of Civil Procedure. Section 1021.5, known as the private attorney general statute, 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....”
On appeal, plaintiffs contend the trial court erred by awarding only “a fraction” of the attorney fees they requested. Plaintiffs also claim a “2.0 multiplier is justified” and that interest accrues on their fee award “as a matter of law.” We conclude the court did not abuse its discretion in awarding $336,350 in attorney fees pursuant to section 1021.5. We also conclude, however, that the court erred in declining to award interest on the attorney fee award.
FACTUAL AND PROCEDURAL HISTORY
Smith I
From 1998 to 2002, Smith attended Novato High School (the School). (Smith I, supra, 150 Cal.App.4th at p. 1446.) In the fall of 2001, Smith wrote an editorial entitled, Immigration for the School newspaper. The editorial contained controversial language regarding immigrants. The School published Immigration. After receiving complaints from students and parents, the District instructed the School principal “to retract any remaining copies [of the newspaper].” There were no undistributed copies to be collected. (Id. at pp. 1147-1148.) The District also sent a letter to parents apologizing for publishing the editorial and stating that the editorial violated the District’s Board Policy regarding student publications. (Id. at p. 1448.) In early 2002, Smith wrote an editorial entitled, Reverse Racism for the school newspaper. (Ibid.) After a delay, the School published the editorial, along with a “counter viewpoint [editorial] entitled It’s About Time and another opinion editorial by Smith entitled Embrace Diversity?” (Id. at p. 1449.)
In May 2002, plaintiffs — represented by the Pacific Legal Foundation — sued the District and various individual defendants (collectively defendants) alleging “violations of Smith’s right to free speech under the United States and California Constitutions and the California Education Code[.]” (Smith I, supra, 150 Cal.App.4th at p. 1449.) The complaint also “challenged the District’s speech policies as facially invalid” and “sought an injunction prohibiting illegal infringement of speech and nominal damages[.]” (Ibid.)
The trial court granted defendants’ demurrer with leave to amend. Plaintiffs filed a verified amended complaint and defendants again demurred. The court sustained the demurrer as to Dale without leave to amend. Defendants answered the remaining portions of the amended complaint and Smith demurred to the answer. In April 2003, the court entered a judgment dismissing Dale from the lawsuit and Dale appealed. In an unpublished decision, this court reversed. (Smith v. Novato Unified School District (Oct. 28, 2003, A101363) [nonpub. opn.].) Defendants then answered the amended complaint. Plaintiffs moved to strike. The court granted, in part, the motion to strike.
In February 2003, plaintiffs filed a motion to stay on the grounds that Smith had joined the Marine Corps Reserves. Over defendants’ opposition, the court granted the motion and stayed the case until July 2003. Defendants answered the amended complaint in early 2004 and the parties began conducting discovery, which included requests for production, requests for admission, form and special interrogatories, and several depositions. In the summer of 2004, the trial court denied the parties’ respective motions for summary judgment. The parties attended an unsuccessful mediation and settlement conference in late 2004 and early 2005.
Following a four-day bench trial, the trial court found in favor of defendants, concluding Immigration was “not protected speech under [Education Code] section 48907 because it constituted ‘fighting words,’ and that there was no infringement of [Smith’s] free speech rights because the opinion editorial was published.” (Smith, supra, 150 Cal.App.4th at p. 1445.) The court also concluded defendants were prevailing parties pursuant to section 1032 and awarded them $20,981.88. (Smith v. Novato Unified School District (May 21, 2007, A111219 [nonpub. opn.].)
In Smith I, this court reversed. In the published portion of the opinion, this court held that “Immigration was not speech likely to incite disruption within the meaning of [Education Code] section 48907 and that the District infringed [Smith’s] rights by stating that the publication of Immigration violated the District[’s] speech policies.” (Smith I, supra, 150 Cal.App.4th at p. 1445.) Interpreting the word “incites” in section 48907, we concluded, “the plain language of section 48907 mandates that a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption. Schools may only prohibit speech that incites disruption, either because it specifically calls for a disturbance or because the manner of expression (as opposed to the content of the ideas) is so inflammatory that the speech itself provokes the disturbance.” (Smith I, supra, at p. 1457.) In the unpublished portion of Smith I, we held that the “District did not infringe [Smith’s] rights vis-à-vis his opinion editorial Reverse Racism, the individual defendants are not immune from liability, the District speech policies are consistent with [Education Code] section 48907, and the District Mission Statement is a general declaration of philosophical goals rather than an enforceable speech regulation.” (Smith I, supra, at pp. 1445-1146, fn. omitted.) We remanded the case to the trial court.
In a separate appeal, this court reversed the trial court’s award of fees to defendants as prevailing parties. (Smith I, supra, 150 Cal.App.4th at p. 1446, fn. 2.)
This court denied both parties’ petitions for rehearing, and the California Supreme Court and United States Supreme Court denied review.
Smith II
Pursuant to this court’s decision in Smith I, the trial court entered judgment for plaintiffs. The judgment provided that plaintiffs were entitled to costs of $20,981.88, and interest. The judgment also provided that plaintiffs “shall recover their costs of suit [in Smith I].”
In October 2007, plaintiffs moved for attorney fees pursuant to section 1021.5. They sought a lodestar amount of $1,494,890.69 with a multiplier of 2.0. Plaintiffs contended the amount of the lodestar was reasonable and they were “entitled to a multiplier of 2.0” because of the “novelty and importance” of the case, the “excellent results” they achieved, and because a fee award would be used by Pacific Legal Foundation to finance public interest litigation. Finally, plaintiffs asked the court to “award interest on fees related to the litigation dating from September 18, 2007 (the date of the remittitur) and on fees awarded for preparing this motion and the costs memorandum from the date of the entry of the order awarding fees and costs.”
On June 11, 2008, the trial court issued an order awarding plaintiffs $336,350 in attorney fees. The order provided:
“In their motion and reply, Plaintiffs presented the Court with a total lodestar amount of $1,494,890.69, which they argued should be enhanced by a 2.0 multiplier. Defendants opposed the motion. Having considered the parties’ pleadings, declarations, memoranda of law, and arguments at the hearing, the Court adopted its March 10, 2008 Tentative Ruling, as follows verbatim:
“Plaintiffs’ motion for reasonable attorneys’ fees pursuant to... Section 1021.5 is granted in the amount of $672,700. [Citations.]... [¶] The Court reduced Plaintiffs’ lodestar figure by 10% representing time spent on unsuccessful claims, namely the severable legal challenge to the District’s speech policies. [Citation.] Plaintiffs’ claim was further reduced by 50% to reflect this Court’s application of a number of factors justifying a reduction of Plaintiffs’ lodestar figure to represent a reasonable fee for the case, including the lack of complexity of the facts and legal issues involved, the fact that the Pacific Legal Foundation receives private support for the purpose of bringing law suits of the character involved, and the fact that [the District] is a public entity so that any fee awarded will ultimately be borne by the taxpayers. [Citation.] Plaintiffs’ attorneys’ time records reflect substantial padding in the form of inefficient or duplicative efforts by multiple attorneys supporting the conclusion [that] the hours for which Plaintiffs seek compensation in attorney fees were not ‘reasonably spent.’ [Citations.] This fee award provides [an] incentive to competent lawyers to undertake public interest litigation without rewarding unnecessary duplication of effort by multiple attorneys or underwriting the training of new attorneys.
“After the hearing, [the trial court] issued an order dated March 14, 2008, which made the following modifications verbatim:
“While plaintiff[s] claim[] entitlement to over $1M in fees, neither the facts of this case nor the itemized billings justify a fee award in the amount claimed. A closer look at the itemized billings submitted by plaintiff[s]’ counsel shows an extraordinary and unreasonable amount of time spent on ordinary legal activities. For example, 237 hours to draft a complaint and 46 hours to draft the amended complaint is perhaps ten times the norm. (The court notes that plaintiff[s] claim[] entitlement to fees at a full partner rate, and not[ ] at the greatly reduced rate of a law clerk, who might in fact, spend so many hours on a project). Likewise unreasonable are the 195 hours to oppose a demurrer, 112 hours to preparing [sic] a demurrer to the answer, 100 hours to prepare a request for a stay, and 6 hours to prepare a case management conference statement. This case involved a 4 day court trial and an appeal. There was extensive law and motion briefing. The issues were not unduly complex. The amounts claimed in plaintiff[s]’ legal billings are not supported by the marketplace. Accordingly, the court sets fees at $336,350.”
The proposed order prepared by plaintiffs’ counsel included the following provision: “Interest on fees on the merits ($317,120.50) shall run from the date of entry of judgment, November 13, 2007, at the rate of 7%. Interest on fees and costs ($19,229,50) shall run from the date of entry of this order establishing entitlement to fees, at the rate of 7%.” The court crossed out the provision related to interest.
DISCUSSION
The District concedes plaintiffs are entitled to attorney fees pursuant to section 1021.5. As a result, the issues before us relate only to the amount of the award. We consider whether the trial court erred by: (1) reducing plaintiffs’ lodestar and declining their request for a multiplier; and (2) rejecting plaintiffs’ request for the accrual of interest on the attorney fee award.
We review the order awarding attorney fees for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096 (Drexler).) As our high court has explained, “[t]he ‘experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his [or her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ [Citations.]” (Serrano v. Priest (1977) 20 Cal.3d 25, 49 (Serrano III).) The trial court’s discretion is not limitless, however. Although “‘a trial court has discretion to determine the proper amount of an award, the resulting fee must still bear some reasonable relationship to the lodestar figure and to the purpose of the private attorney general doctrine. If there is no reasonable connection between the lodestar figure and the fee ultimately awarded, the fee does not conform to the objectives established in Serrano III, and may not be upheld.’” (California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 753 (Common Cause), quoting Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322-324 (Press).)
The Amount of Attorney Fees Awarded Was Within the Court’s Discretion
Courts use the lodestar adjustment method to compute attorney fees where a statute — such as section 1021.5 — authorizes recovery to the prevailing party. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134 (Ketchum); Serrano III, supra, 20 Cal.3d at p. 48, fn. 23.) “‘[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate....’” (Ketchum, supra, at p. 1134, quoting Serrano III, supra, 20 Cal.3d at p. 49.) Next, the lodestar “may then be increased or reduced by the application of a ‘multiplier’ after the trial court has considered other factors concerning the lawsuit.” (Press, supra, 34 Cal.3d at p. 322, fn. omitted.) “[O]ur Supreme Court has repeatedly observed that a lodestar figure may be adjusted not just upward but also, where appropriate, downward. [Citations.]” (Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 840 (Thayer); Drexler, supra, 22 Cal.4th at p. 1096.)
A court may increase or decrease a lodestar figure after considering various relevant factors, including: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing law suits of the character here involved; (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed; and (7) the fact that in the court’s view the two law firms involved had approximately an equal share in the success of the litigation.” (Serrano III, supra, 20 Cal.3d at p. 49, fn. omitted.)
Here, the trial court reduced the lodestar figure for the following reasons: (1) plaintiffs were unsuccessful on a portion of their claims; (2) the case was not unduly complex; (3) plaintiffs’ counsel received private support; (4) the District is a public entity and any fee awarded would be borne by taxpayers; and (5) plaintiffs’ counsel spent an “extraordinary and unreasonable amount of time [ ] on ordinary legal activities” and counsel’s billing entries “reflect[ed] substantial padding.” Omitted from the trial court’s list is the “contingent risk” factor.
As an initial matter, plaintiffs contend the court “applied the wrong factors” when it reduced the lodestar to $336,350. We reject this contention for the simple reason that the factors set forth in Serrano are not exclusive. “‘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. [Citations.]” (Krumme v. Mercury Ins. Co. (2004) 123 Cal.App.4th 924, 947 (Krumme); see also Drexler, supra, 22 Cal.4th at p. 1096 [trial court considers a number of factors, including the “circumstances in the case,” to determine a reasonable attorney fee]; Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 973 [trial court reduced lodestar for hours attorneys spent with the media]; Aetna Life & Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 881 [“[t]he amount involved and the results obtained are also factors” used to determine the amount of attorney fees].)
A. Degree of Success
Next, plaintiffs complain the court “erred in excising 10% of [their proposed] lodestar — or $149,489.07 — to account for time spent on the unsuccessful facial challenge to the [ ] District’s policies.” We acknowledge the loadstar may include time spent on “unsuccessful legal theories.” (Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 273.) The trial court, however, has discretion to reduce a lodestar where a plaintiff achieves only partial success. (See, e.g., Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 426 [“‘California law allows the trial court to reduce... attorneys’ fees award based on the results... obtained, or not to reduce the fee award, as the trial judge finds is appropriate in the exercise of... discretion,’” quoting Beaty v. BET Holdings Inc. (9th Cir. 2000) 222 F.3d 607, 610]; Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 250 [“trial court should take into consideration the limited success achieved by [plaintiffs]” in calculating the award of attorney fees]; Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 974-975 [trial court did not err in reducing lodestar based on plaintiff’s limited success.)
Plaintiffs contend the reduction was inappropriate because “minimal time was expended on the facial challenge.” To support this argument, they refer us to the first page of various attorney declarations submitted in support of their motion for attorney fees. These declarations attach hundreds of pages of billing entries. We are not required to search through these voluminous entries to ascertain whether they support plaintiffs’ argument. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.) As a result, we reject plaintiffs’ argument.
B. Lack of Complexity
The trial court also determined the “lack of complexity of the facts and legal issues involved” justified a reduction of the lodestar. On appeal, plaintiffs contend the court erred because the case was “factually and legally complex.”
It is well settled that a trial court may consider the “novelty and difficulty of the questions involved” to determine whether to increase or decrease a lodestar. (Serrano III, supra, 20 Cal.3d at p. 49.) We address the issue of factual complexity separately from the issue of legal complexity. Here, the court determined the case lacked factual complexity. It explained, “This case involved a 4 day court trial and an appeal.... The issues were not unduly complex.” In an effort to demonstrate the factual complexity of Smith I, plaintiffs point to the “amount of discovery the parties” conducted. The amount of discovery conducted and the vigor with which disputatious parties pursue it, is not necessarily indicative of the complexity of a case. We will defer to the lower court’s determination regarding factual complexity, which is well supported here.
Plaintiffs also contend the case was legally complex because it presented an issue of first impression. Plaintiffs assert that since “this Court is equally capable of deciding whether this case presented a novel and complex issues, there is no reason to defer to the trial courts' characterization of the case [as lacking complexity.]” We are as well positioned as the trial court to determine whether our earlier opinion vindicated an important right affecting the public interest and conferred a significant benefit on the general public. (Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 8, overruled on another point in Graham v. Daimler Chrysler Corp. (2004) 34 Cal.4th 553, 578.) And we do view the issue we found novel and worthy of publication in Smith I as legally complex. While the issue of the statutory interpretation of the term “incites” in section 48907 may be legally complex, this does not demonstrate that the trial court abused its discretion in concluding the case overall lacked complexity. The mere fact that a case vindicates an important right or presents an issue of first impression does not, by itself, establish complexity.
As stated above, the trial judge “is the best judge of the value of professional services rendered in his [or her] court” and his or her judgment “will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ [Citations.]” (Serrano III, supra, 20 Cal.3d at p. 49.) We cannot conclude the trial court here was “clearly wrong” when it determined the case lacked complexity. (See, e.g., San Diego Police Officers Assn. v. San Diego Police Department (1999) 76 Cal.App.4th 19, 24 (San Diego Police Officers Association).)
C. Fee Borne by the Taxpayers
The court also reduced the lodestar in part because the District “is a public entity so that any fee awarded will ultimately be borne by the taxpayers.” We are not persuaded by plaintiffs’ argument that the “law recognizes no such grounds for reducing fees.” In Serrano III, our high court expressly held that “the fact that an award against the state would ultimately fall upon the taxpayers” was one factor a trial court could consider in calculating attorney fees. (Serrano III, supra, 20 Cal.3d at p. 49; see also San Diego Police Officers Association, supra, 76 Cal.App.4th at p. 24 [reducing lodestar because, among other things, “the award of fees would ultimately be borne by the taxpayers”].) To be sure, some courts have held that the payment of fees by a public entity does not, by itself, justify a reduction in the amount of fees awarded. (See Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 231; Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 400 [relying on defendant’s public-entity status “to completely deny an enhancement multiplier... was an abuse of discretion”].) But in light of our high court’s mandate in Serrano III, we cannot conclude the court abused its discretion by reducing the lodestar because the fees would ultimately be borne by taxpayers.
D. Hours “Not ‘Reasonably Spent’”
The court reduced the lodestar because it concluded “plaintiffs’ attorneys’ time records reflect substantial padding in the form of inefficient or duplicative efforts by multiple attorneys” and because plaintiffs’ counsel spent an “extraordinary and unreasonable amount of time [ ] on ordinary legal activities.” The court noted that plaintiffs’ counsel spent 237 hours to draft a complaint, 46 hours to draft an amended complaint, 195 hours to oppose a demurrer, 112 hours to prepare a demurrer to the answer, 100 hours to prepare a request for stay, and 6 hours to prepare a case management conference statement.
It is well settled that fees may be awarded only for “hours reasonably spent.” (Ketchum, supra, 24 Cal.4th at p. 1133, original italics.) And “‘“padding” in the form of inefficient or duplicative efforts is not subject to compensation.’” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 556, quoting Ketchum, supra, 24 Cal.4th at p. 1132.) Here, the court was well within its discretion to conclude a substantial portion of the hours for which plaintiffs sought compensation were not “reasonably spent.” We fail to see how spending 237 hours to draft a complaint — even in the most complex of cases — is a “reasonable” amount of time. The same is true with respect to the other activities mentioned by the trial court. For example, it is simply not reasonable for even the most junior attorney to spend 100 hours drafting a request for a stay. The court also noted that plaintiffs’ counsel frequently sent two attorneys to conferences, hearings, and depositions and had three attorneys work on the same task. The trial court acted well within its discretion when it determined that plaintiffs’ counsel spent an “extraordinary and unreasonable amount of time” on various aspects of the case. (See Common Cause, supra, 200 Cal.App.3d at p. 753 [reducing attorney fees based in part on “‘some duplication’ of effort due to there being three attorneys working on the case”].)
Relying on MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 12 (Gorman), plaintiffs suggest the amount of attorney fees they sought was reasonable because the case required “substantial research and careful drafting to write winning briefs.” In Gorman, the trial court awarded $23,490.77 in fees and costs after concluding the defendant was the prevailing party. (Id. at p. 5.) On appeal, the appellate division of the Santa Clara Superior Court held that the trial court properly awarded fees pursuant to section 1021.5 (Gorman, supra, at p. 8) and held that the amount of time defense counsel spent on the case — 61 hours — was “time reasonably spent.” (Id. at p. 13.)
Plaintiffs’ reliance on Gorman is puzzling for several reasons. First, cases from the superior court appellate division are not binding authority. Second — and in contrast to the situation here — the party opposing the fees in Gorman did not dispute the reasonableness of the fee award. (Gorman, supra, 147 Cal.App.4th Supp. at p. 11.) As a result, the court did not consider any of the Serrano III factors to determine whether the award was reasonable. Finally, Gorman does not stand for the proposition that spending 237 hours to draft a complaint and 195 hours to oppose a demurrer is reasonable.
Plaintiffs also cite Federation of Fly Fishers v. Daley (N.D. Cal. 2002) 200 F.Supp.2d 1181 (Daley) for the proposition that “time spent on major briefs in complex cases like this one—including... summary judgment motions—often is considerably high, but nevertheless reasonable.” We are not persuaded. In Daley, plaintiff environmental organizations brought an action pursuant to the citizen suit provision of the Endangered Species Act (ESA). (Id. at p. 1183.) After the court granted summary judgment for the plaintiffs, they moved for $423,778.81 in fees and costs pursuant to the ESA. (Id. at p. 1188.) The Northern District concluded that the amount of time plaintiffs’ counsel spent preparing the summary judgment motion — 322.55 hours — was unreasonable. (Id. at p. 1190.) The court explained: “While the issues addressed in the summary judgment motion were complex and the motion itself was lengthy... the Court finds that the number of hours must be reduced.... [A] more reasonable amount of time spent working on the summary judgment motion would have been 200 hours. The Court recognizes that this is still a very large number of hours. In light of the complexity of the case and the length of the summary judgment motion, however, this amount of time is warranted.” (Ibid.) Daley, however, is of no assistance to plaintiffs. Here, plaintiffs spent 565.5 hours preparing their summary judgment motion, over twice as long as the Daley court concluded was reasonable.
The lower court’s conclusion that plaintiffs’ counsel’s time records reflected “unnecessary duplication of effort by multiple attorneys” does not — as plaintiffs suggest — penalize plaintiffs for hiring attorneys who are not “slacker[s].” It “provides [an] incentive to competent lawyers to undertake public interest litigation without rewarding unnecessary duplication of effort by multiple attorneys or underwriting the training of new attorneys.”
E. Charitable Funding
The court reduced the lodestar in part because it determined plaintiffs’ counsel, Pacific Legal Foundation, “receives private support for the purpose of bringing lawsuits of the character involved[.]” On appeal, plaintiffs contend their counsel’s “employment with a public-interest organization cannot justify a reduction in attorneys’ fees.”
In a footnote in Serrano III, the California Supreme Court stated, “While as we have indicated the fact of public or foundational support should not have any relevance to the question of eligibility for an award, we believe that it may properly be considered in determining the size of the award.” (Serrano III, supra, 20 Cal.3d at p. 49, fn. 24, italics added.) In Serrano v. Unruh (1982) 32 Cal.3d 621, 643-644, footnote 40 (Serrano IV), the California Supreme Court clarified its statement in Serrano III by noting, “[t]hat the costs of a public-interest firm may not be considered does not mean, however, that the fact of public or foundational support is not relevant to the size of the final award.”
Plaintiffs have established their attorneys received charitable or private funding to enable them to bring actions to advance public interest issues. (See Serrano IV, supra, 32 Cal.3d at pp. 640-641.) We are not aware of any cases where a California court has reduced a fee award based on charitable funding received by counsel. Even if we assume for the sake of argument, however, that the court erred by reducing the lodestar because plaintiffs’ counsel received charitable funding, we would not conclude the amount of attorney fees awarded was an abuse of discretion.
Neither party cites Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270, 1278, a case where the trial court reduced the lodestar for several reasons, including because respondents’ counsel performed the work pro bono. (Id. at p. 1273.) Respondents did not appeal the court’s ruling reducing the fee award because their counsel agreed to provide pro bono representation. (Id. at pp. 1277-1278.) In dicta, the Second District noted, “We do not find it self-evident a law firm’s commendable willingness to provide its services on a pro bono basis... should necessarily justify a diminishment in the fee award when that pro bono representation proves successful. Because respondents did not directly challenge the court’s decision to reduce the fee award based on the pro bono nature of the litigation, we had no reason to invite the parties to brief the issue. Our research indicates courts reduce a fee award to adjust, for example, for duplicative work, for lack of success on certain issues, or the like. However, our research uncovered no case in which a trial court reduced a fee award simply because of the ‘pro bono type of work’ involved. Moreover, in the analogous situation of contingent fee and legal aid lawyers—where again the clients are not responsible for paying legal fees out of their own pockets—the majority of courts have approved awards at a full level of “reasonable” fees.” (Id. at pp. 1278-1279, fns. omitted.)
“[T]he abuse of discretion standard measures whether, given the established evidence, the lower court’s action ‘falls within the permissible range of options set by the legal criteria.’” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:88, pp. 8-38-8-39, quoting Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452 (Robbins).) “The abuse of discretion standard... of review entail[s] ‘considerable deference to the fact-finding tribunal.’” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, at ¶ 8:89, p. 8-39, quoting Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 830-831.) As we noted above, “[t]he ‘experienced trial judge is the best judge of the value of professional services rendered in his court,” and, as a result, “‘it will not be disturbed unless the appellate court is convinced that it is clearly wrong’ — meaning that it abused its discretion.” (Thayer, supra, 92 Cal.App.4th at p. 832, quoting Drexler, supra, 22 Cal.4th at p. 1095.)
We look at all of the factors considered by the trial court. The court carefully and clearly articulated its reasons for reducing the lodestar. (Cf. Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 624 (Ramos).) Especially significant to the trial court’s analysis was its well-supported conclusion that plaintiffs’ attorneys overbilled and that the case was not factually complex. Add to this the court’s concern that taxpayers would ultimately bear the burden of the fee award and we cannot say the court’s decision to reduce the lodestar to $336,350 — even if it erroneously relied on the charitable funding factor — was outside the “permissible range of options set by the legal criteria’” (Robbins, supra, 127 Cal.App.4th at p. 452, quoting Ramos, supra, 82 Cal.App.4th at p. 624) or that it was “clearly wrong.” (Thayer, supra, 92 Cal.App.4th at p. 832.)
The Court Did Not Abuse Its Discretion in Declining to Enhance the Lodestar with a Multiplier
According to plaintiffs, the court erred in denying their request for a multiplier. We disagree. Like the Thayer court, we are “sensitive to the need to encourage ‘private attorneys general’ willing to challenge injustices in our society.” (Thayer, 92 Cal.App.4th at p. 839.) And we agree with the Thayer court that “[a]dequate fee awards are perhaps the most effective means of achieving this salutary goal.” (Ibid.) Here, the award of attorney fees was adequate, even without the enhancement of the lodestar fee. (Ibid.; see also Hogar Dulce Hogar v. Community Development Com. of City of Escondido (2007) 157 Cal.App.4th 1358, 1370-1371 [trial court did not abuse its discretion by declining to apply a multiplier to increase the amount of attorney fees awarded pursuant to section 1021.5]; Krumme, supra, 123 Cal.App.4th at p. 947 [increasing lodestar by multiplier of 1.5 instead of 2 was not an abuse of discretion].) As a result, the lower court did not abuse its discretion in declining to enhance the lodestar with a multiplier.
In conclusion, the trial court reached a calculation that bears “some reasonable relationship to the lodestar figure and to the purpose of the attorney general doctrine.” (Common Cause, supra, 200 Cal.App.3d at p. 753; Press, supra, 34 Cal.3d at p. 324.)
The Court Erred in Rejecting Plaintiffs’ Request for Interest to Accrue on the Fee Award
Plaintiffs’ final contention is the court erred in rejecting their request for interest to accrue on the fee award. We agree. “Postjudgment interest accrues on unpaid fee awards, just as it would on any money judgment.” (Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2008) § 12.37, p. 368.9, citing Gregory v. State Bd. of Control (1999) 73 Cal.App.4th 584, 599.)
DISPOSITION
The award of $336,350 in attorney fees for work performed by plaintiffs’ counsel in Smith I is affirmed. The matter is remanded to the trial court so it can determine the amount of interest to be awarded on the attorney fee award. Each party to bear its costs on appeal.
We concur: Simons, J., Needham, J.