Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 410499
Ruvolo, P.J.
After several on-the-job injuries, appellant Theodore Tarver, Jr. (Tarver) resigned from his position as a police officer with the City and County of San Francisco (the City), but later applied for reinstatement. When his application was rejected, Tarver sued for discrimination based on physical disability. Prior to trial, Tarver dismissed his request for reinstatement to his former position. A jury found in Tarver’s favor on his claims for failure to accommodate and failure to prevent discrimination, but not on his disability discrimination claim, and awarded him a portion of the damages he claimed.
Tarver then sought an award of attorney fees. For reasons detailed in a 10-page order, the trial judge awarded him less than the full amount requested by his counsel. On this appeal, we decline to find that the trial judge abused his discretion in determining the appropriate amount of the fee award. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
The facts giving rise to Tarver’s discrimination claims against the City are not material to this appeal, which challenges only the attorney fee award, so we will set them forth only briefly as background. Tarver worked for the City’s police department as a patrol officer from 1984 until his resignation in June 2001. During this time, he injured his back several times, and after an injury in 1992, he was assigned to work on modified duty. By the time he resigned, Tarver’s back pain was so severe that he could not even work in light duty jobs.
Originally, both Tarver and the City appealed the underlying judgment. (Nos. A114922, A115181.) Both of these appeals were voluntarily dismissed on July 27, 2007, however, so only this attorney fee appeal remains.
On January 30, 2002, Tarver wrote a letter seeking reinstatement to a patrol duty position, with accommodation for his disability. The City did not act on Tarver’s application as promptly as it normally would, so in May 2002, he filed a discrimination complaint with the California Department of Fair Employment and Housing (DFEH), and shortly thereafter received a right-to-sue letter.
After Tarver filed his DFEH complaint, a police department doctor reviewed Tarver’s medical records and the results of a physical examination required as part of the reinstatement process, and determined that Tarver would not be able to perform all of the essential tasks of a patrol officer. Tarver was notified in September 2002 that he would not be rehired as a police officer due to the doctor’s findings.
Tarver then contacted Lawrence D. Murray (Murray), a veteran trial attorney with experience representing plaintiffs, including police officers, in employment discrimination cases. Murray agreed to represent Tarver on a contingency fee basis, expecting a statutory fee award if Tarver prevailed. Other attorneys and paralegals in Murray’s small law office worked on the case as needed. In addition, Murray recruited some outside counsel to assist with certain aspects of the case. Early on, he brought in Dean B. Gordon (Gordon), who had worked with Murray on another police employment discrimination case, and had research, writing, and appellate practice skills that complemented Murray’s trial practice expertise, as well as a thorough knowledge of employment law. Just prior to trial, Murray added Kathryn Cox (Cox) to his team as second chair, and a first-year lawyer named Aram Antaramian (Antaramian) as an additional trial attorney.
The trial judge awarded Cox the entire lodestar fee she requested, and she was voluntarily dismissed as a party to this appeal prior to the completion of briefing.
Tarver filed his complaint in July 2002, seeking damages and an injunction requiring the City to reinstate him to his position. The litigation lasted almost four years, and was vigorously contested by the City. In May 2003, the City moved for summary judgment, and in August 2003, the motion was granted. Tarver appealed (the first appeal), and in an unpublished opinion, a previous panel of this court reversed in part, reinstating Tarver’s causes of action for disability discrimination, failure to offer a reasonable accommodation, and failure to prevent disability discrimination. (Tarver v. City & County of San Francisco (A104171, Dec. 6, 2004) [nonpub. opn.].) Gordon edited the briefs filed on Tarver’s behalf in the first appeal.
After the first appeal, the parties proceeded with pretrial discovery and an unsuccessful attempt to resolve the reinstatement issue through mediation. The trial commenced on February 2, 2006. That morning, Tarver withdrew his demand for reinstatement. The trial lasted the rest of the month, and the jury returned its verdicts on February 28, 2006. The jury found in Tarver’s favor on his causes of action for failure to accommodate his disability and failure to prevent discrimination against him, but found against him on his cause of action for disability discrimination. The jury awarded Tarver only $428,450 in damages, far less than what he had requested. Both parties’ post-judgment motions were denied, as was the City’s motion to tax costs.
Both parties timely appealed the judgment on the merits, but these appeals were dismissed, pursuant to a settlement, before the start of briefing. In the meantime, Tarver filed a post-judgment motion for an award of attorney fees. For work on the merits, the motion requested a lodestar amount of $940,590.87 for over 2,200 hours of work, plus a multiplier that would nearly double the lodestar amount. For the work on the fee motion itself, the motion requested compensation for a total of 118.38 hours of work by Murray, Gordon, and attorney fee expert Richard Pearl (Pearl).
The motion was argued on September 7, 2006, before the same judge who had presided over the trial. On November 28, 2006, the judge filed a 10-page order (the Fee Order) discussing his rationale for awarding fees in the total amount of $676,001, including the amount added by the multiplier and the fees for the fee motion. Tarver sought reconsideration of the Fee Order by way of a motion for new trial, but after two sessions of oral argument on that motion, the trial judge denied it on January 29, 2007. Tarver filed a notice of appeal from the Fee Order on the same day.
A spreadsheet prepared by this court indicates that there may have been some minor arithmetical errors in the trial judge’s calculations. None of them are of any significant magnitude, however, and some are in Tarver’s favor. Neither Tarver nor the City has sought correction of these errors on appeal, so we have disregarded them, and used the numbers given in the Fee Order.
DISCUSSION
A. Standard of Review
As Tarver recognizes, an award of attorney fees is reviewed on appeal only for abuse of discretion. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) As the California Supreme Court has explained, “ ‘The “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong” [’]—meaning that it abused its discretion. [Citations.]” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; see also Serrano v. Priest, supra, 20 Cal.3d at p. 49; Children’s Hospital & Medical Center v. Bontà (2002) 97 Cal.App.4th 740, 777.)
“ ‘ “[T]he appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.” ’ [Citations.]” (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388.) “ ‘We review the entire record, attentive to the trial court’s stated reasons in denying [or granting] the fees and to whether it applied the proper standards of law in reaching its decision. . . .’ [Citation.]” (Wal-Mart Real Estate Business Trust v. City Council of San Marcos (2005) 132 Cal.App.4th 614, 620.) For example, if a trial court applies a multiplier to the lodestar figure based on the mistaken belief that it is required to do so, when in fact the application of a multiplier is discretionary, that error constitutes a basis for reversing the trial court’s decision, and remanding for reconsideration. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1241-1242.)
If the trial court did apply the correct legal principles, however, “we then determine whether the application of that standard to the facts was within the scope of its discretion under the statute. [Citations.]” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 83; see also Punsly v. Ho (2003) 105 Cal.App.4th 102, 113.) We defer to the trial court’s discretion not only “because of its ‘superior understanding of the litigation[, but also because of] the desirability of avoiding frequent appellate review of what essentially are factual matters.’ [Citation.]” (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 324.)
These principles are particularly significant in their application to this appeal, because the Fee Order in this matter sets forth the trial judge’s rationale for his decision explicitly and in detail. The Fee Order cites the relevant legal principles, and thoroughly explains the trial judge’s views regarding the application of those principles to the facts of this case. Tarver does not argue that the trial court applied incorrect legal principles, and identifies only two asserted factual errors (discussed post) in the trial court’s decision. Accordingly, in arguing that the Fee Order reached erroneous results, Tarver bears a heavy burden to demonstrate that the trial judge abused his discretion.
In this regard, we also take note of the trial judge’s remarks toward the conclusion of the hearing on the fee motion. He said, “I recognize the importance of litigation under [the Fair Employment and Housing Act], and I also recognize the importance of proper compensation for attorneys that undertake this often risky, yet socially productive litigation. I also must take into account that it is an important responsibility of the [c]ourt to make awards that are in close relationship to the work done and to scrutinize awards carefully in order to maintain this system, which this [c]ourt believes very strongly in, . . . of reward for contingency litigation which has a great social product. So, I have balancing considerations.”
B. Issues on Appeal
Reductions in Lodestar Hours
The first step in determining the amount of statutory attorney fees to be awarded is to assess the appropriate number of hours reasonably expended by each attorney and legal assistant who worked on the case, multiply that by the hourly rate found to be reasonable for that person, and add up the resulting figures. The total derived from this calculation is commonly referred to as the lodestar amount. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132; Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)
In the present case, the trial judge reduced the lodestar amount with respect to some, but not all, of the attorneys for whom fees were claimed, due to excessive work, duplicative billing, and partial success. Tarver contends on appeal that in so doing, the judge applied an erroneous standard of awarding fees only for hours that were necessary in hindsight, rather than the correct standard of compensating for all hours that were reasonably expended based on what counsel knew at the time.
Tarver’s contention is not borne out by the record. The trial judge expressly recognized in the Fee Order that “multiple lawyers are often necessary in trials and preparation for trials” and that “sole practitioners and small law offices” such as those that represented Tarver in this case “have special collaborative needs which do not exist with large law firms . . . .” He allowed for the need to have a second attorney present during trial. He also recognized, quoting from Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395 (Horsford), that the lodestar calculation should be based on “ ‘the actual hours counsel ha[ve] devoted to the case, less those that result from inefficient or duplicative use of time.’ ”
Tarver contends that the trial judge erred in reducing the lodestar based on duplication of effort based in part on the observation, which Tarver contends is belied on the record, that the City was represented at trial by a single attorney most of the time. Even if the trial judge made a factual error in this regard, we do not view it as establishing an abuse of discretion, given the judge’s explicit recognition in the Fee Order of Tarver’s need to have a second attorney present at trial.
It is true that one sentence in the introductory passage of the Fee Order, in describing the general principles of law applicable to fee awards, states that “Tarver is entitled to reasonable and necessary attorneys’ fees.” (Italics added.) Reading the order as a whole, however, it is clear that the trial judge was applying a standard of reasonableness, not one of necessity, to the task of determining the appropriate number of hours to include in the lodestar calculation. The Fee Order states that up to one-third of the hours claimed by each attorney were deducted “based on the Court’s assessment of duplicative or inefficient time” (italics added)—not unnecessary time. Thus, the court awarded each attorney at least two-thirds of the hours claimed, and as to two of the attorneys (Cox and Gordon), the court made no deductions at all in their hours.
Tarver contends that the reduction of Murray’s hours in the Fee Order was based in part on a mistake of fact on the trial judge’s part in attributing nearly all of the work on the appeal from the summary judgment to Gordon rather than Murray. This contention is not supported by the record. It is true that the Fee Order praised Gordon’s work on the appeal, by way of explaining the court’s decision to award Gordon the full number of hours he claimed, at his full claimed hourly rate of $300. But the statement that Gordon “successfully and capably handled the appeal” of the summary judgment ruling is not tantamount to a decision to disregard all of the hours that Murray attributed to his own work on the appeal.
In fact, nothing in the court’s opinion indicates that the reduction in the hours awarded to Murray was attributed to any specific category of work or any particular time period. Rather, the Fee Order simply states in general that Murray’s declaration regarding his hours contained “obvious errors”; that Murray’s hours were “excessive”; that his time records were “unreliable in some respects”; and that the work he did in relation to Tarver’s abandoned demand for reinstatement “proved to be unproductive and unnecessary.” Thus, Tarver’s argument that Murray was not awarded any compensation for his work on the summary judgment appeal is based on a mischaracterization of the Fee Order.
The Fee Order also states that in determining the number of hours to include in the lodestar, the trial judge “considered the fact that a significant amount of the pre-trial [sic] litigation and settlement discussions concerned Tarver’s claim for reinstatement,” work that “proved to be unproductive and unnecessary” when the reinstatement demand was dismissed on the first day of trial. The trial court also considered that “Tarver prevailed on only two of six causes of action,” rendering the action only partly successful. In arguing that the trial court improperly reduced the lodestar based on a standard of compensating only necessary hours, Tarver appears to rely in part on this aspect of the Fee Order.
Tarver’s argument fails to take into account that adjusting the lodestar figure for partial success is permissible, in the trial judge’s discretion, under applicable case law. “If successful and unsuccessful claims are . . . related,” the trial court should “evaluate the ‘significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.’ [Citation.] If the plaintiff obtained ‘excellent results,’ full compensation may be appropriate. [Citation.] If there was only ‘partial or limited success,’ full compensation ‘may be . . . excessive.’ [Citation.] Where ‘ “the plaintiff achieved only limited success,” ’ the court ‘ “should award only that amount of fees that is reasonable in relation to the results obtained.” [Citation.] In conducting this analysis, a court “may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.” [Citation.]’ [Citation.] In this step of the . . . analysis, ‘[t]he trial court “should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” [Citation.] The court may appropriately reduce the lodestar calculation “if the relief, however significant, is limited in comparison to the scope of the litigation as a whole.” [Citation.]’ . . . “[T]he most critical factor is the degree of success obtained.” [Citation.]’ [Citation.]” (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 417-418, italics omitted.)
All of Tarver’s causes of action in this case were obviously factually and legally related. The City has not argued otherwise.
In the present case, Tarver originally sought reinstatement as well as damages, and contended at trial that he should receive $1.776 million in economic damages alone, plus noneconomic damages. In the end, he dismissed his demand for reinstatement, and was awarded only $428,450 in economic damages, with no additional amount for noneconomic damages. Given these facts, the trial court did not abuse its discretion in considering this a case of partial or limited success, and taking this into account in determining the lodestar.
Moreover, the Fee Order does not state that any specific number of hours was subtracted from the requested compensation based on partial success, but only that this factor was taking into account when assessing the appropriate reductions to make for general inefficiency and duplication. As already discussed, we have concluded that the inefficiency and duplication reductions did not constitute an abuse of discretion, and it does not appear that the trial judge further reduced the number of hours included in the lodestar based on partial success. For both of these reasons, we reject Tarver’s contention that the trial judge erred in reducing the number of hours included in the lodestar figure for the merits phase of the litigation based on the partial nature of Tarver’s success.
The judge also reduced the number of hours included in the lodestar fee awarded for the preparation of the attorney fee motion. The Fee Order explained that the principal reason for this reduction was the inclusion in the moving papers of substantial briefing, much of which the judge characterized as “redundant boilerplate,” detailing Tarver’s right to a fee award and the methodology for calculating such an award. Much of this was apparently derived from briefs previously prepared by Murray and Gordon in connection with their successful appeal of an inadequate fee award in Horsford, supra, 132 Cal.App.4th 359. The court characterized this briefing as “patent overkill,” given that the law was well settled, and the City did not contest Tarver’s right to a fee award. Given this explanation, we cannot say that the decision to reduce the hours awarded for the preparation of the fee motion was unreasonable.
In short, our examination of the record persuades us that the trial judge applied the correct legal standards in determining the number of hours to include in the lodestar calculation. We find no abuse of discretion in his application of those standards to the facts.
Reductions in Hourly Rates
In determining the lodestar amount, the Fee Order also reduced the hourly rates of some of the attorneys and paraprofessionals involved in Tarver’s representation. Most significantly, it reduced the rate for Antaramian, who was admitted to practice less than two months before trial, to $150 per hour, which the court considered “a rate reflecting the market for his services,” rather than his claimed rate of $260 per hour, which the court characterized as more appropriate to “seasoned associates at blue chip law firms.” The trial court was in the best position to assess Antaramian’s skill level, and was most familiar with the relevant market for an attorney with Antaramian’s background. Moreover, Tarver’s own declarations submitted in support of the fee motion indicated that first-year associates at two employment defense law firms in San Francisco (Gordon & Rees and Littler, Mendelson) during the relevant time period were billed at rates from $125 per hour to $165 per hour. Accordingly, we cannot characterize the $150 per hour rate awarded for Antaramian’s work as so far outside the bounds of reason as to constitute an abuse of discretion.
The Fee Order also reduced Murray’s rate from the claimed $450 per hour to $350, which the City’s papers showed was the rate Murray was ultimately awarded for his work on the Horsford litigation from 2001 through 2004. The Fee Order indicated that the basis for this rate was the trial court’s observation that Murray was inefficient in handling the litigation, and its assessment of Murray’s relative skill level. The fact that the court in Horsford awarded Murray a higher rate starting in 2005 did not obligate the trial court to do so in the present case. Accordingly, nothing in Tarver’s briefs on this issue persuades us that the trial court abused its discretion in determining that the appropriate rate for Murray’s work in the present case was $350 per hour.
Application of Lower Multiplier Than Requested
After determining the lodestar amount for an attorney fee award, a trial court has broad discretion to adjust the lodestar amount, by a factor commonly referred to as a multiplier, in order to take account of the specific circumstances of the case. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132; Nichols v. City of Taft, supra, 155 Cal.App.4th at p. 1240.) Some factors the court may consider in determining the appropriate multiplier 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. (Ibid.) 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.]” (Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 834.)
It is an “established principle that a trial court’s decision whether to apply a multiplier is a discretionary one . . . . ‘[T]he trial court has discretion to increase or decrease the ultimate award in order to . . . ensure a fair and just result.’. . .” (Nichols v. City of Taft, supra, 155 Cal.App.4th at p. 1241, italics omitted, quoting Horsford, supra, 132 Cal.App.4th at p. 394; see Ketchum v. Moses, supra, 24 Cal.4th at p. 1133.) Case law requires that discretion to be exercised based on actual evaluation of the relevant criteria, but does not mandate the use of a multiplier at all, much less any particular multiplier. A trial court “ ‘is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case.’. . .” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1138, italics omitted; see Nichols v. City of Taft, supra, 155 Cal.App.4th at p. 1241.)
In this case, the Fee Order listed all of the relevant factors and made clear that the trial court had considered them, as applied to the facts and history of the litigation, in deciding to award a multiplier of 1.25 (that is, a 25 percent increase) rather than the multiplier of 2 (that is, a 100 percent increase) that Tarver requested. Tarver’s contention that the trial court failed to consider the relevant factors is thus belied by the terms of the Fee Order itself.
In support of his request for a multiplier of at least 100 percent, Tarver submitted the declaration of a professor of mathematics and statistics setting forth a statistical analysis of the risk assumed by a plaintiff’s attorney in agreeing to handle an employment discrimination case in exchange for fees to be awarded by the court in the event of success. This expert opined that “from a statistical point of view, the most appropriate enhancement factor [i.e., multiplier] . . . that most accurately takes into account the risk involved . . . would be greater than 2 to 1,” although he declined to give an opinion as to how much greater.
Tarver contends that in light of this analysis, the trial court abused its discretion by failing to award a multiplier sufficient to compensate Tarver’s attorneys fully for the risk they undertook in accepting his case. Tarver cites no authority, however, for the proposition that a trial court is even required to take such a statistical analysis into account as a factor when awarding attorney fees—much less that a trial court abuses its discretion in failing to adopt it.
Tarver also argues that a greater multiplier is necessary in order to fulfill the purpose of the statutory provision for attorney fee awards in employment discrimination cases. On this issue, however, as with the other issues presented by this appeal, our standard of review precludes us from substituting our own views for those of the trial court, as long as it reasonably bases its decision on the factors enumerated in case law, as applied to the facts before it. We are not persuaded by any of Tarver’s arguments that the trial court abused its discretion in choosing to apply a multiplier of 1.25 in this case.
DISPOSITION
The order appealed from is affirmed. The City is awarded its costs on appeal.
We concur: Reardon, J., Sepulveda, J.
Tarver also complains that the trial court should not have relied on any comparison between the hours expended by Tarver’s counsel and those expended by the attorneys for the City, given the City’s objection to Tarver’s request for discovery of the time records of the City’s counsel. Tarver never moved to compel the production of those records after the City objected, however, and has therefore waived the contention that the trial court should have required their production. (See In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [“ ‘An appellate court will ordinarily not consider procedural defects or erroneous rulings where an objection could have been, but was not, presented to the lower court by some appropriate method. [Citations.]’ [Citation.] Failure to object to the ruling or proceeding is the most obvious type of implied waiver. [Citation.]”].)