Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 372767, William A. Mayhew, Judge.
Best Best & Krieger, Victor L. Wolf and Christina A. Hickey for Plaintiffs and Appellants.
McCormick, Barstow, Sheppard, Wayte & Carruth, Todd W. Baxter and Scott M. Reddie for Defendants and Respondents.
OPINION
Wiseman, Acting P.J.
In a previous opinion, we affirmed a jury verdict for defendant Bacchus Vineyards in this breach-of-contract action. Plaintiffs Ennis Commercial Properties, LLC, Ennis Homes, Inc., and HA Devco, Inc., now appeal from an award of attorneys’ fees the trial court granted pursuant to an attorneys’ fees clause in the parties’ contract. Plaintiffs first contend that the fee award should be reversed because the defense verdict should be reversed, but our previous affirmance of the verdict disposes of that claim. Plaintiffs also attack the amount of the award. Though the trial court awarded less than the full amount claimed by defendant, plaintiffs say the amount was still excessive and the court abused its discretion in refusing to reduce it further.
The record shows that the trial court awarded some number of hours for defense counsel’s efforts in responding to a complaint in intervention by plaintiffs’ real estate broker. Since the trial court earlier ruled that fees for this work could not be awarded (since the broker was not a party to the contract containing the fee clause), failing to eliminate these hours from the award was an abuse of discretion. We will remand to allow the court to exercise its discretion to determine the size of the reduction, for it is also clear that plaintiffs have failed to show what the size should be. We reject plaintiffs’ remaining arguments.
FACTUAL AND PROCEDURAL HISTORIES
The underlying case concerns defendant’s refusal to perform a contract for the sale of 40 acres of agricultural land near Modesto to plaintiffs, who are developers. Plaintiffs claimed defendant breached the contract, but the jury found for defendant. The facts are set forth in detail in our previous opinion, Ennis Commercial Properties, LLC v. Paregian (June 18, 2009, case No. F053680).
On October 27, 2007, while the appeal from the verdict was pending, defendant filed its motion for attorneys’ fees, relying on section 13 of the parties’ land purchase agreement and Civil Code section 1717. The motion requested $2,233,317 in fees for 3,559.6 hours billed by defendant’s lead counsel, James M. Jimenez, and 2,671.6 hours billed by other attorneys, paralegals, and law clerks.
In their opposition to the motion, plaintiffs claimed the fee amount was based on hourly rates exceeding the market rates in Stanislaus County, where the case was tried. Defendant replied that the two law firms it used, Pacific Business Law Group and Lurie, Zepeda, Schmalz & Hogan, though based in Los Angeles, charged rates in this matter substantially below those prevailing in Los Angeles. Plaintiffs also argued that defendant’s lead counsel’s hours should be reduced because they included “inefficient and duplicative use of time.” Plaintiffs asked for a reduction of 725.4 hours for “administrative tasks, excessive conferencing with co-counsel, duplicate work, and other non-compensable tasks.” They asked for an additional reduction of 250 hours for work performed by defendant’s lead counsel in defending against a complaint in intervention filed by plaintiffs’ brokers—who were not parties to the contract on which the fee motion was based—as well as “the vagaries inherent in the block-billing method utilized by defense counsel, and the excessive amounts Mr. Jimenez is charging for the instant motion.” Defendant contended that plaintiffs’ law firms, Orrick, Herrington & Sutcliffe and Gilmore, Wood, Vinnard & Magness, had billed plaintiffs in excess of $3.5 million, of which plaintiffs had already paid $1.9 million, and that the reasonableness of defendant’s total fee request should be considered in light of the larger amount plaintiffs spent suing defendant. Plaintiffs, who have new counsel on appeal, did not dispute these amounts, but argued that they too were excessive and were not relevant to the reasonableness of defendant’s fee request.
The trial court agreed that the rates charged by defendant’s counsel were greater than the market rates in Stanislaus County; it also found that defendant did not make a reasonable effort to hire counsel locally. It imposed a schedule of hourly rates lower than those defendant’s counsel billed but higher than those for which plaintiffs argued. It found the claimed number of hours to be reasonable and declined to order a reduction of hours. The court awarded $1,764,222.50 plus $15,000 for fees incurred in making the fee motion. This represented a reduction of about $500,000.
The trial court issued its order on the fee motion on February 8, 2008, and filed an amended judgment reflecting the fee award on the same date. On April 4, 2008, plaintiffs filed their notice of appeal from the amended judgment. On April 18, 2008, defendant filed a second motion for attorneys’ fees. This motion requested fees earned after judgment was entered on the jury’s verdict on August 21, 2007. The court found that defendant failed to establish the reasonableness of a second request for fees earned before the filing date of the first motion, October 27, 2007. Further, it awarded only a part of the fees requested for services rendered after that date, excluding “time attending the hearing on the motion to tax costs and time incurred on matters related to the appeal.” It awarded $7,740 out of $29,205 requested for postjudgment fees plus $4,390 out of $7,990 requested for fees incurred in bringing the second motion. The court filed a second amended judgment reflecting these additional fees on September 9, 2008. No notice of appeal from the second amended judgment appears in the appellate record.
DISCUSSION
The starting point for determining fees is the lodestar method. This method requires the trial court to determine a lodestar or touchstone figure based on the hours reasonably spent by counsel on the litigation and a reasonable hourly fee. After considering a variety of factors, the trial court may then augment or reduce the fee. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 445-446; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-1172.)
We review for abuse of discretion a trial court’s determination of the amount of an award of attorney’s fees. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Serrano v. Priest, supra, 20 Cal.3d at p. 49; Vo v. Las Virgenes Municipal Water Dist., supra, 79 Cal.App.4th at p. 447; Weeks v. Baker & McKenzie, supra, 63 Cal.App.4th at p. 1176.) Our Supreme Court has stated that “[t]he ‘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.’” (Serrano v. Priest, supra, at p. 49; see also Vo v. Las Virgenes Municipal Water Dist., supra, at pp. 447-448; Weeks v. Baker & McKenzie, supra, at p. 1176.)
As a preliminary matter, we do not embrace plaintiffs’ reliance on federal attorney fee cases applying federal law. Federal law on awarding attorneys’ fees diverges in substantial ways from California law. The California Supreme Court has held that fee shifting “‘is a matter within the sole competence of this court,’” and that “with regard to questions about how attorney fee awards must be assessed, ‘[w]e envision an independent state rule.’” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)
I. Complexity of the case
The trial court’s order awarding attorneys’ fees states that the “facts of the case are not complicated,” and plaintiffs’ brief says the award must be reduced because “it is shockingly excessive” for “a very simple case.” Despite the court’s comment about the lack of complexity of the facts, however, it found the overall number of hours claimed by defendant to be reasonable. The magnitude of the case justified this finding. The parties deposed a combined total of 31 witnesses over 48 sessions in nine cities. Discovery disputes were numerous and a discovery referee was appointed. Witness testimony at trial took 20 court days. At stake was ownership of property for which plaintiffs received an offer from a third party of $20 million. (Ennis Commercial Properties, LLC v. Paregian, supra, F053680, at p. 6.) Both sides ran up multimillion dollar attorney fee bills. The court did not abuse its discretion in declining to reduce the fees claimed based on the supposed simplicity of the case.
II. Hourly rates
Plaintiffs argue that the trial court abused its discretion when it reduced the hourly rates for defendant’s attorneys by a smaller amount than plaintiffs requested. When it establishes the lodestar, the trial court should use the “prevailing hourly rates” to establish “the basic fee for comparable legal services in the community.…” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) Plaintiffs claim the rates the trial court employed here were above the market rates for Stanislaus County.
The following table shows the rates defendant requested, the rates plaintiffs requested, and the rates the court applied:
Type of timekeeper
Defendant’s request
Rate applied by court
Attorney 20 or more years
$345 to $450/hr.
$260/hr.
$300/hr.
Attorney 11-19 years
$365/hr.
$240/hr.
$275/hr.
Attorney 6-10 years
$265 to $365/hr.
$200/hr.
$250/hr.
Attorney 1-5 years
$265/hr.
$180/hr.
$225/hr.
Law clerk/summer associate/intern
$195/hr.
$125/hr.
$150/hr.
Paralegal
$175 to $195/hr.
$100/hr.
$150/hr.
The rates shown in this table are the rates plaintiffs asked for in the trial court, not the somewhat lower rates they belatedly list in their appellate briefs.
Plaintiffs contend that the evidence supported their rates better than it supported the court’s rates. They rely on declarations by four Central Valley attorneys, Thomas E. Campagne, Paul N. Balestracci, John M. Dunn, and Barbara Savery—the last two of whom represented defendant in connection with this case or the underlying real estate transaction—describing the following rates charged by their own and other Central Valley law offices: $200 to $290 per hour for attorneys of 20 or more years’ experience; $205 to $250 for 11-to-19-year attorneys; $195 to $200 for 6-to-10-year attorneys; $175 for entry-level-to-five-year attorneys; $125 for law clerks; and $100 for paralegals. Only one statement in the declarations submitted by both sides supported a rate higher than these for a Central Valley lawyer: Barbara Savery stated that George A. Petrulakis of Modesto, who had 16 years’ experience, represented defendant in 2004 and charged $335 per hour.
It may well be that a preponderance of this evidence supports a rate schedule closer to that proposed by plaintiffs than that adopted by the trial court. Whether the court’s order was supported by a preponderance of the evidence submitted is not the question on appeal, however. The question is whether the court abused its discretion; and the court’s discretion on the issue of local rates is broader than plaintiffs’ arguments imply. For one thing, the trial court is entitled to rely on its own knowledge of local legal fees; it is not restricted to evidence of them supplied by the parties. “‘The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony.’” (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1096.) For another, “in assessing a reasonable hourly rate, the trial court is allowed to consider the attorney’s skill as reflected in the quality of the work, as well as the attorney’s reputation and status.” (MBNA America Bank v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13; see also Ketchum v. Moses, supra, 24 Cal.4th at p. 1138 [high quality of attorney’s work is usually accounted for by increasing hourly rate before calculating lodestar].) In this case, defendant’s attorneys achieved a complete vindication of their client’s interests despite documentary evidence that was very challenging for the defense. (See Ennis Commercial Properties, LLC v. Paregian, supra, F053680, at p. 12.)Applying its own knowledge of local rates and its own assessment of counsel’s performance, the trial court could reasonably find the rate schedule it adopted to be fair compensation in the Stanislaus County market.
This is an opinion of the appellate division of the Santa Clara County Superior Court. Appellate division opinions have “‘debatable strength as precedents.’” (Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 782, fn. 9.) We include it here since it includes a straightforward application of the Supreme Court’s remarks in Ketchum v. Moses, supra, 24 Cal.4th 1122.
Plaintiffs argue that the court abused its discretion because there was no evidence in the record of local rates above those plaintiffs requested for attorneys at certain experience levels or for paralegals or summer associates. There is no rule, however, that this is required. There was evidence of a Central Valley attorney whose rate was $335 per hour, and another whose rate was $290 per hour. There is no reason why the court could not peg its top rate to these figures and apply a discount to fill out the rest of the schedule.
To answer the argument that the trial court was entitled to rely on its own experience and its own assessment of counsel’s performance, plaintiffs claim the court could rely on those resources only after calculating the lodestar based on evidence submitted by the parties. After doing this, plaintiffs contend, the court could use its own experience or its attorney performance evaluation as the basis of a multiplier or enhancement; but it did not apply a multiplier or enhancement in this case, so its own judgment of those matters could not properly enter into its calculations.
This does not appear to us to be a correct description of the role of the court’s experience and judgment in calculating fees. In Ketchum v. Moses, supra, 24 Cal.4th at page 1138, the Supreme Court explained that factors like attorney skill either can be included in setting the hourly rate—and thus be incorporated into the lodestar—or they can be the basis of an enhancement, though they must not be both. In fact, adjustment of the hourly rate is the more usual method of accounting for performance.
“We emphasize that when determining the appropriate enhancement, a trial court should not consider these factors to the extent they are already encompassed within the lodestar. The factor of extraordinary skill, in particular, appears susceptible to improper double counting; for the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. A more difficult legal question typically requires more attorney hours, and a more skillful and experienced attorney will command a higher hourly rate. [Citation.] Indeed, the ‘“reasonable hourly rate [used to calculate the lodestar] is the product of a multiplicity of factors … the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case.”’ [Citation.]” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1138-1139.)
In sum, there is no rule against the court using its own experience and judgment in determining the proper hourly rate for the local market.
Plaintiffs cite Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, saying it is “directly on point.” They are mistaken. In Nichols, we held that the trial court abused its discretion when it applied a 33 1/3 percent multiplier to Kern County rates in order to mitigate the impact of local rates on counsel based in Los Angeles and San Francisco, even though it was not shown that the prevailing party had made reasonable efforts to hire local counsel. (Id. at pp. 1238-1239, 1242-1244.) In the present case, the court did not apply a multiplier and did not intend to make any allowance for the fact that defense counsel would have received higher rates in Los Angeles. Instead, it stated in its written order that “Defendant is not entitled to receive attorneys’ fees calculated at the hourly billing rates of Los Angeles counsel.” This plainly implies that the rates the court applied represented its determination of rates appropriate for Stanislaus County—not, as plaintiff claims, “a hybrid of local rates and the rates charged” by defendant’s counsel for work in Los Angeles.
The trial court approved a rate schedule that was only 15 to 25 percent higher than that requested by plaintiffs in all but one category. (For paralegals, the court’s rate was 50 percent higher.) The highest rate the court approved, $300 per hour, was lower than the highest Central Valley rate for which there was evidence in the attorney declarations, $335 per hour, and was very close to the next highest, $290 per hour. Given the court’s own expertise about Stanislaus County rates and the role of its judgment about attorney performance, we cannot say the court’s rate schedule was clearly wrong. The court did not abuse its discretion in setting the hourly rates.
III. Administrative tasks
Plaintiffs contend that the court abused its discretion by refusing to reduce the hours on which the fee award was based. They claim, first, that the court should have refused to award fees for billings for “administrative and other non-compensable tasks like filing, calendaring, monitoring mail, and packing, boxing and labeling files.” This claim, like several of plaintiffs’ other claims for reduced hours (addressed below), is based on the principle that “‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.)
When they presented this claim to the trial court, plaintiffs supported it with the declaration of Rebecca M. Lerma, to which was attached a spreadsheet prepared by Ms. Lerma listing billing entries drawn from defendant’s bills and deemed by plaintiffs to be wholly or partly administrative. The items in the spreadsheet range over a wide variety of types of activity. Examples are “Prepare six verifications for Victoria, Dr. Paregian and Bacchus re Responses to Form Interrogatories and Document Production”; “Confirm delivery of Federal Express package containing first amended Cross-Complaint to Stanislaus Superior Court”; “load e-mails and begin review”; “Gather and organize documents to deliver to Victoria and Dr. Sam in San Francisco tomorrow”; “Supervise preparation of amended notice to expunge”; “Prepare exhibits for Motion to Compel”; “Prepare deposition exhibit index”; and “Format and merge jury instructions information into Word Perfect document.” The total time for these activities, according to the spreadsheet, is 153.5 hours; but, as the spreadsheet indicates, many of the items were included in large blocks of time in the attorney bills, and in each instance Ms. Lerma included the entire block of time in the spreadsheet even though only a fraction of it (of unknown size) was attributable to the alleged administrative task.
Though plaintiffs demand that the fee award be reduced by all the hours listed in the spreadsheet, multiplied by the hourly rate they say should be applied to Mr. Jimenez, defendant shows that many of the entries are for timekeepers other than Jimenez.
Mr. Jimenez responded by submitting a declaration in which he undertook to explain and justify many of the items listed in the spreadsheet. Defending the entry “Prepare six verifications for Victoria, Dr. Paregian and Bacchus re Responses to Form Interrogatories and Document Production,” for instance, Jimenez says, “This was not an administrative task that I undertook. These verifications are important legal documents that had to be prepared correctly.” Explaining the entry “Load e-mails and begin review,” Jimenez states that loading the e-mails on his computer took two minutes; the remainder of the 2.1 hours billed was for the legal task of reading the e-mails, which were evidence in the case.
On one hand, it is true that law firms generally do not bill clients for hourly activities of administrative personnel, such as secretaries. On the other hand, there is no categorical rule against reimbursement via fee award for administrative activities of lawyers and paralegals. It is inevitable that lawyers and paralegals will carry out some tasks fairly called administrative, and it is probably not uncommon for some of these activities to appear in law firms’ hourly billings. Too much of this surely would antagonize the average client, and a trial judge certainly has discretion to reduce a fee award because the submitted bills reflect too much time spent on administrative tasks. How much is too much, however, is precisely the sort of call that is committed to the trial judge’s sound discretion. Having reviewed the items plaintiffs seek to exclude and Jimenez’s defenses of them, we cannot say the court transgressed the bounds of reason in deciding not to reduce the award.
In connection with their claim about administrative tasks and their other claims that the court should have reduced defense counsel’s hours, plaintiffs also argue that the trial court abused its discretion by not giving an adequate explanation of why it did not accept plaintiffs’ arguments. They cite several Ninth Circuit cases in which a fee award was reversed and remanded for this type of explanation. In McCown v. City of Fontana (9th Cir. 2009) 565 F.3d 1097, 1102, for instance, the court held that “a district court’s disposition of a motion for attorney’s fees must ‘provide a concise but clear explanation of its reasons for the fee award’” and remanded for lack of such an explanation. This case applied federal law, however, and there is no California authority for the view that a trial court must explain why it finds the attorney hours submitted by a prevailing party to be reasonable even though the losing party says they are not reasonable. In the absence of specific applicable authority on this point, we will abide by the general appellate principle that a trial court must be presumed to have made all findings necessary to support its judgment. “‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
In their reply brief, plaintiffs argue for the first time that, by obtaining an award of fees for administrative tasks, defendant achieved an end run around the trial court’s earlier ruling that certain administrative expenses could not properly be reimbursed via an order awarding costs. As this argument was not made in plaintiffs’ opposition to the fee motion, it has not been preserved for appeal (see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400, p. 458); and as it appears in the appeal for the first time in plaintiffs’ reply brief, it would have been waived even if it had been preserved for appeal. (Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1022; California Recreation Industries v. Kierstead (1988) 199 Cal.App.3d 203, 206, fn. 2.)
IV. Travel-related tasks
In a second exhibit to her declaration, titled “Non-Legal Tasks,” Ms. Lerma listed activities that related mainly to travel. Examples are “Pack and prepare for trip to Sacramento … travel to hotel and unpack”; “Pack up all files and suitcases”; “pack and drive from Modesto to Los Angeles”; and “Organize, label and pack all boxes and pack U-Haul truck for transport of all Ennis v. Paregian case files.…” Plaintiffs argued to the trial court and argue again on appeal that these are “non-compensable tasks.” The spreadsheet shows a total of 282.4 hours for these tasks, but virtually all the entries are for blocks of time in which the travel-related tasks were included among other tasks, so there is no way of knowing what portion of the 282.4 hours were for the travel-related tasks.
Plaintiffs cite no authority, and we know of none, according to which time traveling or preparing to travel cannot be awarded as attorneys’ fees. In fact, it is common for attorneys to bill clients for time spent in travel necessary to the conduct of litigation. As Jimenez pointed out in his reply declaration, plaintiffs’ counsel also billed for travel time. We see nothing which would compel the trial court to find that the amount of this travel-related time was unreasonable. Plaintiffs have not demonstrated an abuse of discretion.
V. Conferences, e-mailing, and tasks involving more than one time entry
Next, plaintiffs assert that defendant’s counsel’s billings included 289.5 hours for “duplicative tasks and excessive interoffice conferencing and e-mail communications.” This claim corresponds to two more spreadsheets attached to Lerma’s declaration. The first of these is titled “Interoffice Conferences/Emails” and consists of a list of dates with a quantity of time—but no task description—for each date. The items total 153.9 hours. Lerma’s declaration states that this is a “list of time billed for interoffice conferencing and interoffice e-mail communications between or among Mr. Jimenez and attorneys from [co-counsel] Lurie, Zepeda, Schmalz & Hogan (‘LZSH’), wherein the daily total of such interoffice activities met or exceeded 0.50 hours.” In their appellate brief, plaintiffs characterize the number of attorneys employed by defendant, and the time defendant’s attorneys spent on telephone conferences with, and e-mails to, each other, as excessive. In light of the abuse-of-discretion standard of review applicable here, it is difficult to see how this claim could have merit. The trial court viewed the time spent on these tasks as reasonable. Plaintiffs disagree. This is not grounds for reversal.
The fourth spreadsheet is called “Duplicative Tasks.” It is a list of billing entries in which a timekeeper gave the same description of a task on two separate occasions. For instance, attorney Troy L. Martin billed.40 hours on August 4, 2006, for a task described as “Review-analyze Bill Henry deposition” and billed.90 hours on August 5, 2006, for a task with the same description. The billings in this spreadsheet total 135.6 hours. The explanation of these entries is obvious. The timekeeper began a task on the first occasion and finished it on the second. The trial court did not abuse its discretion in declining to find that to be unreasonable.
VI. Complaint in intervention
Gallagher & Miersch, Inc., plaintiffs’ real estate broker, filed a complaint in intervention against defendant. In pretrial proceedings, the trial court denied a writ of attachment requested by plaintiffs, and in the course of making this ruling, the court also ruled that defendant could not recover attorneys’ fees against Gallagher & Miersch because it was not a party to the land purchase agreement in which the attorneys’ fees clause was contained. Plaintiffs now say the fee award included 250 hours of work devoted to defending against the complaint in intervention and that we should order the award reduced by that amount. As we will explain, the manner in which plaintiffs have presented this issue—in the trial court and here—has been so casual and cursory that neither the trial court nor we could reasonably be expected to adopt the 250-hour figure and make an order based on it. Nevertheless, the record makes it clear that the fee award included some hours defense counsel devoted to defending against the complaint in intervention, though it appears impossible to tell exactly how many hours. The trial court should either have made a reasonable estimate and reduced the hours accordingly or should have directed defendant to produce additional evidence. We will direct the court to take one of these courses on remand.
The discussion of this issue in plaintiffs’ opposition to the fee motion consisted, in its entirety, of the following sentence: “Plaintiffs submit that an additional 250-hour reduction in Mr. Jimenez’ compensable time is appropriate to account for hours allocable to his defense of the complaint in intervention, the vagaries inherent in the block-billing method utilized by defense counsel, and the excessive amounts Mr. Jimenez is charging for the instant motion.” There was no explanation of how the 250-hour figure was calculated. There was no division of that figure between time spent on defense of the complaint in intervention, time attributable to “vagaries,” and time claimed for preparing the fee motion. No evidentiary support for the figure—such as a list of billing entries for time spent responding to the complaint in intervention—was provided.
Plaintiffs’ presentation of the issue in this appeal is no better. Having previously claimed that the 250 hours were for defending against the complaint in intervention among other things, plaintiffs now say there were 250 hours of billings for defending against the complaint in intervention alone. Their briefs are silent about this discrepancy. The discrepancy and the silence reinforce the impression already made by plaintiffs’ brief in the trial court that the 250-hour figure has no basis. And, plaintiffs’ opening appellate brief cites no billing entries or any other evidence to support the figure.
In their reply brief, plaintiffs finally mention and cite some billing entries relating to defense of the complaint in intervention. The specific entries mentioned, however, total only 12.5 hours. Some additional entries are mentioned in general terms. An examination of these shows that they are included in blocks of time devoted to other tasks as well, with no way of determining how much of the time is related to the complaint in intervention. The reply brief goes on to assert, without record citations, that, “In fact, even a cursory review of the documents submitted by Respondents in support of their request for attorneys’ fees indicates that there are well over forty separate time entries and in excess of at least 150 hours devoted to” defending against the complaint in intervention. (Italics added.) While implicitly confirming that there never was any basis for the 250-hour figure, plaintiffs also fail to substantiate the new 150-hour figure.
This performance would provide considerable support for a holding that plaintiffs have waived this issue by failing to present it adequately to the trial court, this court, or both. It is certain that neither the trial court nor we were ever in a position to rely on plaintiffs’ claim of 250 noncompensable hours.
At the same time, it is undisputed that time spent responding to the interveners could not properly be part of a fee award, that there are some entries in the bills submitted by defendant for doing just that, and that the trial court did not reduce the hours. We know some hours were wrongly included in the award. We are extremely hesitant to fault the trial court under the circumstances, but “trial courts must carefully review attorney documentation of hours expended” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132), and once plaintiffs brought the issue to the court’s attention, however carelessly, the court was in a position to see that there were some hours related to the complaint in intervention included in the billings. Then it could either have made a reduction that, in its discretion, it considered reasonable, or it could have required defendant to isolate the time its counsel spent in responding to the complaint in intervention. We conclude that the court incorrectly included in the award hours it had already found noncompensable. We will remand to allow the court to make appropriate findings and an appropriate reduction for time spent defending against the complaint in intervention. We express no view about the size of the reduction.
VII. Postjudgment fees
Defendant’s second fee motion, requesting postjudgment fees, was filed after plaintiffs filed their notice of appeal from the court’s order granting defendant’s first fee motion. Plaintiffs now argue that we should reverse the court’s order granting the second fee motion because the notice of appeal deprived the trial court of jurisdiction to entertain that motion.
The controlling statute is Code of Civil Procedure section 916, subdivision (a), which provides:
“Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”
Our Supreme Court discussed this provision in detail in Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180. It stated:
“In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ [Citation.] ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 189.)
The court went on to list more specific types of circumstances in which a trial court proceeding is stayed by the filing of an appeal. The stay comes into effect if the proceeding would “directly or indirectly seek to ‘enforce, vacate or modify [the] appealed judgment or order’”; if it would “substantially interfere with the appellate court’s ability to conduct the appeal”; if “the possible outcomes on appeal and the actual or possible results of the proceeding are irreconcilable”; or if “the very purpose of the appeal is to avoid the need for that proceeding.” (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at pp. 189-190.)
Plaintiffs make no effort to explain how, under these standards, the second motion for attorneys’ fees was embraced in or affected by the appeal from the order on the first motion. They cite no cases with similar facts. They offer only the conclusory assertion that, because the appeal was filed before the second motion, the trial court lacked jurisdiction to consider the second motion. This alone is sufficient reason to reject plaintiffs’ claim, for inadequate briefing waives a claim on appeal. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.) We do not, in any event, see how this situation fits into any of the categories enumerated by the Supreme Court. Instead, the second fee motion was “ancillary or collateral to the appeal” because the proceedings on the second motion “could or would have occurred regardless of the outcome of the appeal.” (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 191.) Defendant could have sought the postjudgment fees regardless of our decision on reducing the prejudgment fees.
Plaintiffs also contend that, “[e]ven if the trial court had jurisdiction to consider Respondents’ Motion for Post-Judgment Fees it should not have awarded Respondents any such fees because, as noted by the trial court, the fee request in the Motion for Post-Judgment Fees improperly included fees related to this appeal and to the hearing on the motion to tax costs.… Moreover, the majority of the fees requested in the Motion for Post-Judgment Fees were incurred before the first motion for fees was filed.” This argument has no merit. The trial court reduced the amount requested in the postjudgment fee motion by eliminating the very items plaintiffs list here. There is no logic in the assertion that, because the motion requested some noncompensable fees, it should have been denied in its entirety.
VIII. Fees for opposing motion to disqualify court’s research attorney
For the first time in their reply brief, plaintiffs claim the trial court abused its discretion because it “allowed Respondents to recover over twenty hours Respondents spent opposing Appellants’ motion to disqualify the trial court’s research attorney because he was an anti-Walmart activist.” (Wal-Mart was the third party that offered to buy the property from plaintiffs for $20 million. [Ennis Commercial Properties, LLC v. Paregian, supra, F053680, at p. 6.])
This claim fails for several reasons. First, we see no indication that it was ever presented to the trial court, so it has not been preserved for appeal. Second, an appellant may not properly raise a claim for the first time in a reply brief. Third, there is no rule that a prevailing party otherwise entitled to attorneys’ fees can never recover fees for unsuccessfully opposing a motion brought by the losing party. The trial court is not required to search the prevailing party’s fee bills for motions it brought or opposed unsuccessfully and deny reimbursement for those services.
DISPOSITION
The order awarding attorneys’ fees is reversed and the matter remanded to the trial court. The trial court shall enter a new order reflecting the amount it previously awarded, less a reduction to account for time spent responding to the complaint in intervention, as explained in section VI of this opinion. Costs are awarded to Respondents.
WE CONCUR: Levy, J., Kane, J.