Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. CV810761
DUFFY, J.
After a court trial, judgment was entered against Richard Bunch in favor of Peggy Bell and Burton Bell. The judgment determined among other things that Peggy Bell was entitled to an award of attorney fees and costs under Welfare and Institutions Code section 15657.5, subdivision (a) in that Bunch was determined to have committed financial elder abuse against her.
We affirm that judgment in a separate opinion filed this date (Bell et al. v. Bunch (H032692).)
The statute was amended in 2008 in respects not pertinent here. We still apply the former version of the statute. (Stats. 2004, ch. 886, § 4.) Further references to Welfare & Institutions Code section 15657.5, or any part of it, are to the former version.
In a postjudgment order, the trial court awarded Peggy Bell statutory attorney fees and costs of $290,684.93, which included a 1.2 multiplier on the entire portion of the loadstar attributed to fees for services performed by her trial counsel and his firm with no deductions other than for fees incurred litigating the fee motion, plus $5,824 in expert witness and investigation fees. Bunch appealed from the order, challenging both the legal basis for it and the amounts awarded. We conclude that the court erred in awarding expert witness and investigation fees and that it abused its discretion or failed to exercise it in the determination of a reasonable fee and in the addition of a multiplier, which was not warranted here. We accordingly reverse the fee award and remand with directions for the trial court to exercise its discretion in accordance with applicable legal principles.
STATEMENT OF THE CASE
I. Relevant Factual Background
The underlying facts that led to the judgment are detailed in the separate opinion filed this day and need not be repeated here. But we briefly set forth here what is pertinent to the post-judgment order for attorney fees and costs that is the subject of this appeal.
In 2002, Burton lived in a home in Campbell to which Peggy held title as trustee of the Bell Family Trust. Peggy and her husband, Burton’s father, now deceased, had taken title to the property in 1990 and had taken out the loan for which the property served as security, as Burton was not creditworthy and could not qualify for a loan. But Burton functioned as the property’s owner, living in the house, paying the mortgage payments, paying the property taxes, making improvements and performing maintenance, and claiming the annual mortgage interest deduction, etc. And as between Peggy and Burton, the property belonged to Burton as both considered him to be its beneficial and equitable owner.
Because Peggy and Burton Bell share their surname, for clarity we refer to Peggy Bell by her first name and mean no disrespect in doing so.
Over time, Burton experienced financial difficulties and at least five times between 1990 and the beginning of 2002, Peggy provided the money to save the property from imminent foreclosure, to the tune of over $100,000. In January 2002, Burton was experiencing extreme financial stress and lost the property where his business was located to foreclosure. And in February, he was again in default and facing foreclosure of the property where he lived. At Burton’s request, Peggy again came up with the money needed to avert foreclosure of the property-$11,428.35.
Around this time, Burton’s friend Bunch, whom Peggy had met and trusted as Burton’s good friend, told her that he would buy the property from her for $460,000, relieving her of further obligation to the lender. Bunch told her, among other things, that he would, in turn, sell the property to Burton for the same price for a reasonable period of time. According to Peggy, she thought the property was then worth about $550,000 but she was willing to sell to Bunch, Burton’s friend, on these terms in order to allow Burton time to deal with his problems and get back on his feet so that he could get the property appraised and qualify for a loan. Peggy and Bunch never discussed what was meant by “a reasonable time” after the sale during which Bunch would be willing to sell the property to Burton for the same price. In a phone call on March 7, 2002, Bunch dictated the terms of an agreement by which Peggy would sell the property to him but the agreement did not include the provision that Bunch would sell the property to Burton for the same price. Peggy typed the agreement and signed it, and delivered it to a title company that Bunch had specified in the written agreement.
On March 19, 2002, without Burton’s knowledge, Peggy transferred the property to Bunch for $460,000 cash, which Bunch had largely borrowed from his father. After payment of the mortgage, Peggy yielded some $67,000 from the sale, which she later gave to Burton.
Bunch told Burton of the sale after it happened. Burton was upset at Bunch and Peggy. Peggy assured him that Bunch had agreed to sell him the property at the same price but Burton did not believe this. Burton demanded that Peggy get the property back from Bunch, but she made no effort to do so. Two months later, in May 2002, Bunch served Burton with a 30-day notice because he was not paying rent. Bunch later pursued unlawful detainer proceedings and in the fall 2002, evicted Burton from the property, destroying and keeping many items of his personal property that Burton had been unable to remove. Through his lawyer in the unlawful detainer proceedings, Burton expressed that he was willing to buy the property from Bunch for the same price, plus $5,000 or $10,000 for the time value of Bunch’s money. But Bunch offered to sell the property to Burton at that point for some $200,000 more than he had paid.
II. Procedural Background
A. The Pleadings
Burton filed his verified complaint against Peggy and Bunch on September 3, 2002. He alleged that he was the beneficial owner of the property through a resulting trust, that Peggy had had only legal title, and that she had breached her fiduciary obligation to him by selling the property to Bunch. He further alleged that Bunch had induced the sale by falsely representing to Peggy that he would hold the property for Burton’s benefit and would sell it to Burton for the same price he had paid and that Bunch had refused to cooperate with Burton’s efforts to finance the transfer of the property to him. For the first cause of action, he sought the imposition of a “purchase money resulting trust.” For his second cause of action, he sought cancellation of the grant deed from Peggy to Bunch, offering to restore all consideration that Bunch had provided to Peggy on the condition that Bunch convey the property to him. For the third cause of action, Burton sought to quiet title to the property in him. And for the fourth cause of action, he sought to enforce, as a third party beneficiary, Bunch’s alleged promise to Peggy to sell the property to him for the same price Bunch had paid, “plus a reasonable return on the funds he paid her for his purchase.” He finally sought declaratory and injunctive relief in his fifth and sixth causes of action. The ultimate relief prayed for with respect to the property under any theory was that Bunch be ordered to convey it to Peggy and that she, in turn, be ordered to convey it to Burton so that he could be restored in the end as the true owner of the property.
Bunch answered and cross-complained against Burton and Peggy for declaratory relief and indemnification, respectively. Then, both Burton and Bunch dismissed Peggy from the action. After the court denied Burton’s application for a preliminary injunction, on October 29, 2004, he amended his complaint against Bunch to eliminate the cause of action for injunctive relief and to add a cause of action for conversion of Burton’s personal property, which he alleged was worth $100,000. He re-alleged the same misrepresentation by Bunch that he would hold the property and sell it to Burton at the same purchase price and further alleged that Peggy had demanded that Bunch sell the property to Burton in accordance with the agreement between her and Bunch, but that Bunch had refused. The ultimate relief sought with respect to the property was that it be declared to be held in trust for Burton’s benefit and that Bunch be ordered to convey it back to Peggy, with the right of possession restored to Burton.
Meanwhile, in June 2004, Peggy filed a separate action against Bunch for fraud, seeking the imposition of a constructive trust for the benefit of the Bell Family Trust and its beneficiaries and for declaratory relief. She alleged that Bunch had induced her to sell him the property by representing that he would hold it in trust for Burton and would sell it to Burton for the same purchase price “within a reasonable period of time.” She further alleged that Bunch represented that he was Burton’s friend and would help him, that Burton was in financial need, that he would assist Peggy in the discharge of her fiduciary duties to Burton as trustee of the Bell Family Trust, and that he would tell Burton of the terms of the agreement, all of which representations were false. The pleading also alleged that Peggy had demanded that Bunch sell the property to Burton but that he had refused and it invoked remedies for statutory elder financial abuse in view of Peggy’s age. The ultimate relief sought with respect to the property was that Bunch be ordered to convey it back to Peggy as trustee of the Bell Family Trust.
In July 2004, Peggy filed an amended complaint that restated the same causes of action but also sought specific performance of Bunch’s alleged agreement to sell the property to Burton. It alleged that Peggy and Burton had offered to purchase the property from Bunch for $460,000 but that he refused to sell it in breach of the agreement. The pleading ultimately sought an order “compelling [Bunch] to convey [the property] to [Peggy Bell as trustee of the Bell Family Trust] and/or Burton Bell.”
The actions were consolidated in November 2004.
On the first day of trial, March 12, 2007, Peggy and Burton, who were then jointly represented by new counsel, each filed second amended complaints. Their new pleadings included as an alleged fact that in order to induce Peggy to sell him the property, Bunch had also represented that Burton was a drug addict and that Bunch had a friend who was an addiction counselor who could help Burton with this problem. Peggy’s amended complaint pleaded causes of action for fraud, for imposition of a constructive trust for Peggy’s benefit, for declaratory relief, for specific performance of Bunch’s alleged promise to sell the property to Burton, and for statutory financial abuse of an elder. The ultimate relief sought with respect to the property was for a decree that Bunch held the property in trust for Peggy as trustee of the Bell Family Trust and that Bunch be compelled to convey it to Peggy Bell as trustee, “and/or Burton Bell.” Burton’s amended complaint similarly alleged causes of action for imposition of a constructive trust but for Burton’s benefit, for imposition of a purchase money resulting trust, for cancellation of the grant deed from Peggy to Bunch, for quiet title of the property in Burton as the beneficial and equitable owner of the property, for breach of contract as the third party beneficiary of Bunch’s promise to convey the property to Burton, for declaratory relief, and for conversion. The ultimate relief sought with respect to the property was for a decree that Bunch held it in trust for Burton.
B. The Judgment and Postjudgment Award of Fees and Costs
After a court trial of the consolidated actions, judgment was entered determining that Bunch had committed fraud and financial elder abuse against Peggy and that she was accordingly entitled to a statutory award of attorney fees and costs under Welfare and Institutions Code section 15657.5, subdivision (a). The judgment also determined that Bunch held the real property he had obtained by fraud in a constructive trust for the benefit of Peggy and Burton Bell.
This statute provides for the recovery of reasonable attorney fees and costs where a defendant has been found liable for financial elder abuse as defined in Welfare and Institutions Code section 15610.30.
Peggy filed a post-judgment motion for an award of fees and costs. She sought an award of fees for all services performed by the three lawyers or law firms that had represented her in the consolidated action, plus a multiplier of 1.5. The total amount of fees she sought did not isolate those incurred solely for her benefit or for the specific claims giving rise to her entitlement to fees-financial elder abuse by fraud. And it included fees for clerical and messenger services and expert witness and investigation fees.
The motion attached billings and declarations of Peggy’s current and former lawyers. Attorney David Kraft, who had also represented Burton, billed Peggy for 150.75 hours of services performed in 2004 and through July 19, 2005, when he was “forced to withdraw from representing Burton Bell” because of illness. He billed Peggy at the rate of $350 per hour for a total of $52,672.50. These services billed by Kraft included trial preparation in 2005, when the trial date was continued presumably related to his withdrawal, and the preparation of one of Burton’s amended complaints. The services performed were only very generally and vaguely described in his statement for services. Kraft’s declaration stated that he had not been paid. Attorney Vincent Kilduff, who took over Peggy’s representation from Kraft, billed her for 27.9 hours of services performed in 2005 and 2006 at $350 per hour for a total of $9,765. His bill likewise only generally and vaguely described his services and he too stated in his declaration that he had not been paid.
Attorneys Breck E. Milde and Nicole M. Ossi of Terra Law LLP, substituted into the case for Burton on February 9, 2007, and for Peggy on February 27, 2007, shortly before the five-day court trial on liability that all together spanned several weeks. Until the judgment was entered in their clients’ favor, they sent their bills addressed to Burton alone and not Peggy, who was the only one between the two with any potential entitlement to an award of fees. After that, they added Peggy’s name to their statements. Peggy’s moving papers, prepared by attorneys from Terra Law, did not disclose the terms of any contract by which she had agreed to compensate the firm and did not establish that she, herself, had actually incurred any fees at all. The papers sought a lodestar of hourly fees of $256,138.75 for services performed by Terra Law attorneys and staff through entry of judgment. This amount included fees for 328.40 hours performed by trial counsel Breck Milde, billed at the hourly rate of $375, $400, and $425, depending on when the services were performed; 227.7 hours performed by Nicole Ossi, billed at $250 and $265 per hour; 6.6 hours performed by Mark Good, billed at $285 per hour; 10.5 hours performed by a law clerk and billed at $65 per hour; and 38.25 hours of clerical work by three people billed at the varying rates of $55, $65, and $75 per hour depending on who performed the work and when it was performed. The bills included detailed descriptions of services but all services performed by an attorney in a single day were “block-billed, ” meaning that the time spent for each separate task performed in a single day was not discernable.
Peggy’s counsel on reply said in a declaration that he “understood that the only way [he] would be paid for [his] work in this matter is if plaintiffs were to prevail” and that his “agreement with Peggy Bell does not obligate her to pay... fees absent recovery from defendant.” This, of course, does not disclose the terms of any fee agreement with Peggy or establish a contingent fee agreement for the services rendered as Burton was billed by the hour for all services and was presumably obligated to pay on that basis. Counsel conceded as much at oral argument.
Thus, the total lodestar amount of attorney (and staff) fees sought was $256,138.75. The motion also sought an award for expert witness and investigation fees in the amount of $5,824.43, for a total lodestar amount of $261,963.18. To this amount, the motion sought to add a multiplier of 1.5 as an enhancement, bringing the total requested amount to $392,944.77. The factors supporting the requested multiplier were asserted to be that Terra Law had taken the case on a “de facto contingency basis, ” meaning that counsel wasn’t sure what the source of payment for hourly billing would be unless the Bells prevailed; that the trial was “protracted and complicated;” that the firm had substituted into the case (then, for Burton) with only four weeks to prepare for trial; that the files they inherited from prior counsel were a disorganized mess; that they had deferred payment for their services; that the results were exceptional; that Peggy was elderly, lived far away, was in ill health, and was distressed by the events that led to the litigation, which had destroyed her relationship with Burton; and that the case had public interest value.
Bunch pointed out in argument below that Burton had been represented by a series of different attorneys throughout the litigation and that at least some of them were forced to move to withdraw, notably one who alluded to an encounter with Burton that made him physically ill after he told Burton he could no longer represent him. According to Bunch, the state of the files when received by Terra Law should thus not be a factor favoring enhancement of the fees, as it was created by Burton’s pattern of causing serial breakdowns in the attorney-client relationship.
Bunch opposed Peggy’s motion. He contended that no fees should be awarded at all as the entire case was driven by Burton and was for his sole benefit rather than Peggy’s, and he had no right to fees. He alternatively argued that the amount of fees sought for the work performed was inflated and showed overreaching by Peggy’s attorneys by duplicative and excessive hours claimed, vague descriptions of services, blocked billing, and impermissible charges for clerical and messenger services. He also argued that there had been no attempt in the motion to isolate fees for services directly tied to Peggy’s elder abuse and fraud causes of action-the only claims for which there was any possible basis for an award of fees even to her.
Bunch pointed out that as described in an attorney fee invoice, after he had conveyed the property back to Peggy as directed by the judgment, counsel had prepared a quitclaim deed by which Peggy granted it free and clear to Burton, Peggy having paid off the mortgage with money received from Bunch.
On reply, Peggy requested an additional $15,862.50 in fees for services rendered in connection with the fee motion, plus a multiplier of 1.5. This additional base amount represented a total of 50.5 hours, 35 at $265 per hour and the rest at $425 per hour. Thus, the total lodestar of fees requested was $277,825.68 (which included the $5,824 in expert fees), all multiplied by 1.5, for a grand total of $416,738.52.
After a hearing, the court issued its written order awarding Peggy $290,684.93 in attorney and expert witness and investigation fees. It appears from the order’s text that the court intended this total to be comprised of $9,765.00 and $52,762.50 to prior counsel, plus $238,157.43 to Terra Law (lodestar of $193,611 x 1.2 multiplier = $232,333.00 + $5824.00 in expert fees). Accordingly, the court awarded the full requested lodestar for prior both counsel’s services and it awarded the full lodestar requested by Terra Law through entry of judgment (excluding the expert and investigation fees), with no reductions, and then added a multiplier of 1.2 to the fees requested by Terra Law. The court declined to award any fees at all for preparation of the fee motion.
The actual total of these numbers set out by the court is exactly $10,000 more, or $300,684.93. The order thus appears to contain a mathematical error, which can be corrected on remand. But we proceed on the assumption that the court intended to award the full lodestar for attorney fees requested by the moving papers through entry of judgment, with Terra Law’s fees enhanced by a 1.2 multiplier, because that is what the order says.
DISCUSSION
I. Issues on Appeal
Bunch timely appealed from both the judgment and the order awarding attorney and expert fees.
By separate order, this court ordered the two appeals considered together for purposes of briefing, argument, and opinion. The court also issued a writ of supersedeas staying enforcement of the judgment and the attorney fee order pending final disposition of the appeals.
With respect to the order awarding statutory attorney fees and costs to Peggy under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.), which is the subject of this appeal, Bunch first argues that because the finding of elder abuse was itself error, the award must be reversed as having no underlying statutory basis. Failing that, he contends the order should still be reversed and remanded because it is excessive, and because it made no deductions for services and expert witness fees for which there is no legal basis for recovery.
II. As a Victim of Financial Elder Abuse, Peggy Was Entitled to an Award of Attorney Fees and Costs
Welfare and Institutions Code section 15657.5, subdivision (a) provides for an award of reasonable attorney fees and costs to victims of financial elder abuse where the abuse is proven by a preponderance of the evidence. Accordingly, Peggy, as a victim of financial elder abuse, was entitled to an award of fees and costs by statutory right. Bunch challenges this right by contending that Peggy was not a true victim of financial elder abuse and that the real beneficiary of the litigation was Burton, who is not entitled to an award of fees.
But by affirming the judgment in a separate opinion filed this day, we have already concluded that Peggy was a victim of financial elder abuse, as defined by section Welfare and Institutions Code section 15610.30 (Stats. 2000, ch. 442, § 5). And it is of no relevance that Peggy’s purpose in pursuing the litigation may have been to rectify Bunch’s fraud in order to benefit Burton, her son. The Act’s heightened remedies are not limited to those who prosecute their cases for only certain purposes. Having established that she was a victim of financial elder abuse, Peggy was entitled to an award of statutory fees and costs incurred in connection with her financial elder abuse claim, which encompassed her fraud claim, and the trial court correctly made this determination. Having concluded that there was a proper legal basis for an order awarding attorney fees, we proceed to our review of the amount awarded.
III. The Trial Court Erred and Either Abused its Discretion or Failed to Exercise it With Respect to Costs and Fees Awarded
Bunch challenges the fee and cost award in several respects. First, he contends that there is no legal basis for an award of expert witness and investigation fees. Second, he contends that the trial court abused its discretion by failing to apportion fees. He claims the court should have made an award that was limited to fees for services incurred in connection with Peggy’s claims that were compensable under the relevant fee statute as opposed to those that were unique to Burton, such as conversion. Third, he contends that the court abused its discretion by awarding excessive fees in that those awarded included clerical and messenger charges, overcharges, and duplication of charges. Finally, he contends that the court abused its discretion by adding a multiplier to enhance the “already inflated” lodestar amount. We address each of these contentions in turn. Except for the first of these issues, which involves statutory construction and invokes independent review, we review the challenges to the amount of the fee award for abuse of discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1130.)
A. The Court Erred in Awarding Expert Witness and Investigation Fees as Costs
Former Welfare and Institutions Code section 15657.5, subdivision (a), the operative fee statute, provided in relevant part that where a defendant is liable for financial elder abuse, “in addition to all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney fees and costs. The term ‘costs’ includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.” (Stats. 2004, ch. 886, § 4.) Thus, to be awardable under this section, costs must have some allowable basis provided by law. Code of Civil Procedure section 1033.5, subdivision (b) provides that certain costs are not allowable as costs, except when expressly authorized by law. These disallowed costs include fees of experts not ordered by the court and investigation expenses in preparing the case for trial-the two types of fees that make up the $5,824 awarded here.
Bunch contends that the trial court erred in awarding these costs because they have no statutory basis, either in the Act or elsewhere. We agree. As recently held with respect to trustee fees in a financial elder abuse case, Welfare and Institutions Code section 15657.5, subdivision (a) does not authorize recovery for costs beyond those specifically allowable in civil actions. (Sanders v. Lawson (2008) 164 Cal.App.4th 434, 438-441.) The language of the statute allowing an award of costs which “includes, but is not limited to, reasonable fees for the services of a conservator” (Welf. & Inst. Code, § 15657.5, subd. (a)) does not expand allowable costs to those not otherwise authorized. (Ibid.)
Peggy offers no other source of statutory authorization for the recovery of expert witness and investigation fees here. But she cites cases construing statutes in other contexts that do allow expert witness fees or other expenses. These cases are distinguishable. In Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-138, the court of appeal construed Civil Code section 1794, subdivision (d) allowing “costs and expenses” and took notice of legislative history that specifically referenced expert witness fees as allowable expenses as distinguished from costs. We are not here dealing with a statute that provides for the recovery of expenses in addition to costs. In California Housing Finance Agency v. E.R. Fairway Associates I (1995) 37 Cal.App.4th 1508, the court construed Health and Safety Code section 51205, subdivision (f), which provides for the recovery of costs and reasonable attorney fees “[n]otwithstanding any other provision of law.” Here, in contrast, the operative statutory language provides for recovery of costs if they are otherwise provided by law-a significant difference.
We conclude that the court erred by awarding $5,824 in expert witness and investigation fees as there is no statutory basis therefor. We will accordingly reverse the award to the extent it allowed these fees.
B. The Court Abused its Discretion or Failed to Exercise it by Not Apportioning Fees at All
Peggy and Burton collectively pursued multiple claims throughout the entire course of this litigation. But only Peggy’s claim for financial elder abuse, which encompassed her fraud claim, falls within the statute authorizing recovery of attorney fees. Judgment was entered for Peggy on these two claims, as well as for Burton on his claim for conversion. Yet neither Peggy and Burton’s joint counsel nor the trial court apportioned fees, or seemingly made any effort to do so, as between claims for which fees were recoverable and those for which they were not.
“ ‘When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, the prevailing party may recover only on the statutory cause of action. However, the joinder of causes of action should not dilute the right to attorney fees.’ (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133.)... Such fees need not be apportioned when incurred for representation on an issue common to both causes of action in which fees are proper and those in which they are not. (See Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130.) Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units. [Citations.]” (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 686-687; see also Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 159 [attorney fees need not be apportioned between distinct causes of action where plaintiff’s various claims involve a common core of facts or are based on related legal theories]; Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1086 [time spent on non-fee shifting claims was determinative of fee-shifting claims and thus compensable]; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111 [defense of contract, tort, and RICO claims so intertwined that separation of time was impracticable, if not impossible, to achieve]; Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1608 [successful party may recover fees for work on overlapping claims].)
Peggy naturally contends that apportionment of fees was not warranted here because the claims were so intertwined and that the court accordingly did not abuse its discretion in not apportioning them. And we acknowledge that in substantial part, this may be correct. But Bunch points to specific tasks and time entries related to Burton’s conversion claim, for example, where apportionment is clearly warranted. Related to this claim he cites the better part of a day of trial testimony (March 20, 2007) and time entries for legal research, drafting the trial brief, and obtaining, subpoenaing, preparing, and examining trial witnesses (2/20/07, 2/21/07, 2/28/07, 3/2/07, 3/6/07, 3/19/07). He also points to time spent related to the issue of judicial estoppel by reason of Burton’s representations in his bankruptcy filings, an issue solely related to Burton’s claims (12/7/06, 1/3/07, 2/25/07, 2/26/07, 3/2/07, 3/3/07). And we note one time entry by David Kraft, who also represented Burton, for 10 hours on October 27, 2004, relating to the preparation of Burton’s amended complaint. Moreover, while the amount of time devoted to all of Terra Law’s time entries may be impossible to discern from other entries on those same days, that is not due to the interrelation of claims but because of block billing by counsel. While this method of billing may be common, it makes it impossible to separate out time between claims and difficult to determine whether the time spent on any given task was reasonable. (Bell v. Vista Unified School District, supra, 82 Cal.App.4th at p. 689.) When presented with block billing in a fee request, a trial court may, and perhaps should, exercise its discretion to assign a reasonable percentage to the entries or “simply cast them aside.” (Ibid.)
That the trial court did not apportion any time, gave no reason for not doing so, and made no deductions, coupled with the fact that we are so easily able to identify time spent on matters that are not compensable, raises questions about the trial court’s exercise of discretion. We recognize that we review a fee award for abuse of discretion. But there are limits to the scope of our deference. “ ‘When the record is unclear whether the trial court’s award of attorney fees is consistent with the applicable legal principles, we may reverse the award and remand the case to the trial court for further consideration and amplification of its reasoning. [Citations.]’ (In re Vitamin Cases (2003) 110 Cal.App.4th 1041, 1052 [reversing attorney fee award to putative class members].) ‘[D]iscretion must not be exercised whimsically, and reversal is appropriate where there is no reasonable basis for the ruling or the trial court has applied ‘the wrong test’ or standard in reaching its result.’ (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239 [reversing attorney fee award of nearly $500,000 in sexual harassment lawsuit where no showing the trial court considered threshold factors for fee enhancement].) ‘A trial court’s award of attorney fees must be able to be rationalized to be affirmed on appeal.’ (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.)” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 269 (Donahue).)
We have not engaged in a detailed examination of counsel’s invoices, a task we leave on remand to the trial court.
Because on this record, some apportionment of fees is clearly warranted and possible, even if by application of percentages, we will reverse the fee award and remand with directions for the trial court to apportion fees where possible as between compensable and non-compensable claims.
C. The Trial Court Abused its Discretion or Failed to Exercise it by Awarding Excessive Fees
Bunch also contends the fee award was excessive in that it was inflated with non-recoverable clerical and messenger charges, obvious overcharges, and duplication of charges.
1. Clerical and Messenger Charges
With respect to clerical and messenger charges incurred, counsel’s declaration in the moving papers said that these items included the service of subpoenas and assembly of documents and exhibits, among other things, and that the billing rates for these charges ($55-$75 per hour) were reasonable. He did not say that the charges were reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation and there was no evidence of this.
Peggy argues that such clerical charges are routinely compensated by attorney fee awards, citing Guinn v. Dotson (1994) 23 Cal.App.4th 262, 269-270 [Code of Civil Procedure section 411.35, subdivision (h) allowing reasonable expenses, including attorney fees, for failure to comply with section permitted paralegal fees as a component of an attorney fee award]; Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 274-275 [paralegal time reasonably expended in the course of litigation was recoverable as component of a fee award under private attorney general statute, Code of Civil Procedure section 1021.5]; and Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 951 [necessary support in the nature of secretarial and paralegal services are includable within attorney fee award under Code of Civil Procedure section 1036, which provides for the reimbursement of reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees to successful plaintiff in inverse condemnation proceedings].) Each of these cases involved either paralegal fees or a statute that provided for the recovery of expenses in addition to costs, or both. We have neither here.
We again look to the statutory basis for an award of fees and costs in this case to assess whether the particular charges for clerical and messenger services are recoverable. As noted, Welfare and Institutions Code section 15657.5 provides for the recovery of reasonable attorney fees and costs, if they are otherwise allowed by law. Messenger and delivery charges have been held to be recoverable as a cost in the court’s discretion under Code of Civil Procedure section 1033.5, subdivision (c)(4) (items not mentioned as allowable or disallowable costs may be allowed or denied in the court’s discretion) where they are shown to have been reasonable and reasonably necessary to the conduct of the litigation and not merely convenient or beneficial to its preparation. (Ladas v. California. State Auto Assn. (1993) 19 Cal.App.4th 761, 776 [courier and messenger charges]; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132 [messenger fees].) The clerical and messenger fees at issue here were not shown to have been reasonably necessary to the conduct of the litigation.
We accordingly reverse the award to the extent it provided for the recovery of clerical and messenger costs as a component of attorney fees. On remand, the court may determine in the exercise of its discretion if such costs were reasonably necessary to the conduct of the litigation and not merely convenient or beneficial to its preparation, and award these costs, or not, as appropriate.
2. Overcharges and Duplication of Charges
“In Ketchum[ v. Moses], supra, 24 Cal.4th at pages 1131-1132, “the Supreme Court stated: ‘Under Serrano III [Serrano v. Priest (1977) 20 Cal.3d 25, 48], a court assessing attorney fees begins with a touchstone or lodestar figure, based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney... involved in the presentation of the case.” [Citation.] We expressly approved the use of prevailing hourly rates as a basis of the lodestar, noting that anchoring the calculation of attorney fees to the lodestar adjustment method “ ‘is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts.’ ” [Citation.] In referring to “reasonable” compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; “padding” in the form of inefficient or duplicative efforts is not subject to compensation. [Citation.]’ ” (Pellegrino v. Robert Half International, Inc. (2010) 182 Cal.App.4th 278, 290.)
Bunch contends the attorney fees awarded included obvious overcharges such as the nine-hour, 15-hour, and unspecified parts of the 16.7-hour, 17.9-hour, and 9.9-hour entries on consecutive days of a single attorney for “ ‘review and analyze documents for plaintiffs’ trial exhibit list.’ ” He also challenges fees awarded at an attorney’s full hourly rate for tasks he terms clerical. And he cites duplicative attorney time entries such as eight hours for trial preparation by David Kraft on July 18, 2005, and then another eight hours on the same day by the same attorney for trial preparation and legal research. We have verified these examples in the record and find them troubling. And we note Bunch’s objections below to other similar examples of these billing practices in his opposition to the motion for an award of attorney fees. Because the trial court deducted no fees from the lodestar amount requested (except for those relating to the fee motion itself), we conclude from these examples that the court declined to exercise its discretion in the determination of a reasonable fee and used “an overly deferential approach to the fee request.” (Donahue, supra, 182 Cal.App.4th at p. 271.) Or at least it appears so.
“A trial court may not rubberstamp a request for attorney fees, but must determine the number of hours reasonably expended. ‘ “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fees award.” ’ (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) ‘The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.’ (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320...; see also Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816 [party seeking attorney fees has the ‘burden of showing that the fees incurred were “allowable, ” were “reasonably necessary to the conduct of the litigation, ” and were “reasonable in amount” ’].)” (Donahoe, supra, 182 Cal.App.4th at p. 271.) What is reasonable does not include compensation for inefficient or duplicative efforts-“padding.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.)
In Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 834, the court of appeal reversed a fee award because of the “unjustified duplication of work that took place.” Under these circumstances, “the unquestioning award of generous fees may encourage duplicative and superfluous litigation and other conduct deserving no such favor.” (Id. at p. 839.)
Because it appears here that the trial court failed to exercise its discretion in the determination of a reasonable fee by, among other things, its allowance of duplicative and excessive charges, which suggested the absence of an independent assessment of the fee request, we reverse the award and remand with directions for the court to exercise its discretion to determine the number of attorney hours reasonably expended, or to clarify that it has already done so.
D. The Trial Court Abused its Discretion in its Addition of a Fee Enhancement
The trial court here not only awarded for attorney fees the full lodestar requested (except for the fee motion itself), it then added a 1.2 multiplier to the full amount requested by Terra Law as an enhancement. Its order referenced the short time the attorneys had to prepare for trial after beginning their representation and that the trial was “complicated and bifurcated” as justification. Bunch challenges the enhancement on the basis that these factors should not be considered when they are already compensated in the unreduced lodestar, which, he contends, they were here based on the excessive number of hours billed by trial counsel at premium rates. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1138-1139.)
Peggy counters that the enhancement was justified because of the “de facto” contingent nature of the fee agreement, while conceding that she was billed on an hourly basis and having offered no evidence of the terms of her actual fee arrangement.
Courts have broad discretion to award a multiplier in appropriate cases. While the lodestar amount “is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including... (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. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.)
As for the first factor cited by the trial court to support the multiplier-the short time new counsel had to prepare for trial-it does appear from trial counsel’s billings that this factor was accounted for in the lodestar by the number of pretrial hours billed by more than one attorney at rates reaching $425 per hour. As to the second factor-that the trial was “complicated and bifurcated”-it does not appear to us that the five and a half day court trial involved particularly complex issues or a multitude of issues or witnesses. Instead, we would characterize it as no more or less complicated than most ordinary, modern civil litigation. And the fact that one day of testimony relative to punitive damages was bifurcated and took place at a later date than the trial of liability questions did not elevate the complexity of the case.
Rule 3.400 of the California Rules of Court defines a complex case as one that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants. Factors which support this designation include numerous pre-trial motions raising difficult or novel issues that will be time-consuming to resolve; management of a large number of witnesses or a substantial amount of documentary evidence; management of a large number of separately represented parties; coordination with related actions pending in one or more courts; and substantial post-judgment judicial supervision. Cases involving antitrust or trade regulation, construction defect claims involving many parties or structures, securities claims or investment losses involving many parties, claims involving mass torts, claims involving class actions, or insurance coverage claims arising out of any of these types of cases are provisionally designated complex. This case presented none of these factors or issues.
Addressing other factors that a court can consider in the determination whether to applier a fee multiplier, we have already concluded that the case was no more difficult than most civil litigation. And with the exception of the issue concerning the interpretation of “property of an elder” under the Act, which was a legal issue not particularly emphasized during trial, there was no novelty to the questions presented, as no other emerging or cutting edge issues were litigated. It is true that Peggy’s counsel displayed skill in his trial presentation, but perhaps because the case did not present particularly difficult or complex issues, the skill displayed was not so exceptional as to warrant a fee enhancement over and above his top billing rate of $425 per hour. A trial court should award a multiplier to the lodestar amount for exceptional representation that far exceeds that which would have been provided by an attorney of comparable skill and experience. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1138-1139.) It is also true that in the time just before trial and during it, counsel was virtually precluded from dealing with other matters. But counsel entered the case just a few weeks before trial, as has been emphasized, and the court trial spanned just five and a half days. Such employment would not extensively preclude counsel from accepting significant other employment.
The final factor-the contingent nature of the representation-has no application to this case despite counsel’s urging. Counsel did not take the case on a contingency basis, as evidenced by all their hourly billings. They were partially paid along the way and as a result of Peggy’s prevailing, she became entitled to a fee award. That counsel may believe he won’t be paid unless his clients prevail does not transform the clients’ obligation to pay his hourly billings into a contingent fee agreement.
While the trial court’s decision whether to apply a multiplier to enhance a fee award is a discretionary one, the parameters of discretion are always set by the applicable legal principles that inform it. We have reviewed the court’s decision to apply a 1.2 multiplier here to Terra Law’s entire requested lodestar amount in light of those principles and have concluded that the decision exceeds the bounds of available discretion. It did so because it effectively elevated the fees to a point that was not “approaching the market rate for comparable legal services” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1136) but instead was well in excess of it. Accordingly, we reverse the order awarding fees to the extent it was enhanced over and above the lodestar.
III. Conclusion
We have concluded that the trial court properly determined that Peggy was entitled to an award of attorney fees and costs under Welfare and Institutions Code section 15657.5, subdivision (a). But we have also concluded the court erred in awarding expert witness and investigation fees. We have further concluded that the court abused its discretion, or failed to exercise it, in the determination of a reasonable fee-the lodestar. And we have likewise concluded that the court abused its discretion in enhancing what was determined to be the lodestar amount of Terra Law’s fees with a multiplier. We have finally concluded that the court made a mathematical error in the total amount awarded. We will accordingly reverse the order awarding attorney fees and costs and remand the matter for the court to exercise its discretion in the determination of a reasonable fee in accordance with applicable legal principles, consistently with this opinion.
DISPOSITION
The postjudgment order awarding attorney fees and costs is reversed and the matter is remanded with directions for the court to exercise its discretion in the determination of a reasonable fee in accordance with applicable legal principles, consistently with this opinion.
WE CONCUR: Mihara, Acting P.J., McAdams, J.