Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County Ct. No. N72142, Jacqueline M. Stern, Judge. Affirmed.
McINTYRE, J.
In 1996, Terrill Finton, Dianne Gober, Sarah Lang, Talma (Peggy) Noland, Suzanne Papiro and Tina Swann (collectively Plaintiffs) sued their employer, Ralphs Grocery Company (Ralphs), for sexual harassment. In their first appeal, we affirmed compensatory damages awards in their favor, but remanded the matter for a new trial on punitive damages. After a second jury awarded Plaintiffs substantial punitive damages, we reduced the award as constitutionally excessive and remanded the matter for entry of judgment. The trial court entered judgment and granted Plaintiffs' motion for an award of attorney fees. In this appeal, Plaintiffs contend the trial court erred in deciding their attorney fees motion when it declined to award a multiplier and failed to issue a statement of decision. We reject their contentions and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
We incorporate by reference our prior opinion in Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204 (Gober II). Accordingly, as the parties are fully familiar with the facts and procedural background as set forth in Gober II, we will not repeat them.
On remand from Gober II, Plaintiffs (among other things) moved for an award of attorney fees for over ten years of litigation. They sought $6,945,916 as the lodestar amount for work performed on the merits of the case and $373,244.50 for work performed toward the recovery of fees (fees for fees). They also requested a 2.0 multiplier for the merits work, a 1.5 multiplier for the fees for fees work and that 2006 billing rates be used to calculate the award.
Plaintiffs argued that the lodestar amount for merits work should be doubled based on case complexity, the excellent result obtained, counsel's inability to work on other cases and the fact they had little assurance of winning at the outset of the litigation. They pointed out the numerous factual issues they needed to prove to establish Ralphs's liability for compensatory and punitive damages. They also asserted that a 1.5 multiplier should apply to their fees for fees request because the history of the litigation was extensive and much of the work connected with the fee application was performed before they were assured of prevailing party status.
In opposition to the motion, Ralphs did not contest Plaintiffs' right to an attorney fee award. Rather, it argued that the hourly rates Plaintiffs sought exceeded San Diego market rates, the amount of time worked was unreasonable, and that the requested multipliers should be denied. In summary, Ralphs argued that Plaintiffs' suggested lodestar amount be reduced by $2,722,628.53.
In a three-page tentative ruling, the trial court indicated that it had "carefully reviewed" all declarations submitted in connection with the motion. In determining the lodestar, the trial court awarded the 2006 fee rates requested by Plaintiffs' counsel for all work performed since 1996 even though Plaintiffs had failed to submit evidence that the rates were reasonable for San Diego. It also reduced the number of hours requested and calculated the lodestar amount at $6,759,249.77 for merits work and $279,933.38 for fees work.
After considering all relevant factors, the trial court declined to allow any enhancements to the lodestar amounts. The trial court noted that the case was not "particularly novel or extraordinarily difficult," the skill displayed by Plaintiffs' counsel had been taken into account in determining the lodestar, Plaintiffs' counsel had not demonstrated that the case has such an impact on their practices that they could not maintain their client base, and the contingent nature of the litigation did not justify enhancement "due to the fact the above lodestar figures fully compensate the attorneys for undertaking representation of Plaintiffs 'at the risk of nonpayment or delayed payment, in an amount approaching the market rate for comparable legal services.'" The trial court also awarded interest on the fees award from the date of the judgment and declined to issue a statement of decision. After hearing oral argument and taking the matter under submission, the trial court affirmed its tentative ruling.
Thereafter, Plaintiffs sought and obtained, a supplemental award of $444,248.77 for further fees for fees work. Plaintiffs appealed after Ralphs paid all the attorney fees and costs awarded.
DISCUSSION
I. Legal Principles and Standard of Review
In awarding attorney fees, the trial court must first establish a lodestar figure, calculated by multiplying the time spent by a reasonable hourly rate for private attorneys in the community conducting noncontingent litigation of the same type. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133 (Ketchum).) After determining the lodestar figure, the trial court may exercise its discretion to increase or decrease the figure based on any number of factors, typically including: (1) the novelty and difficulty of the questions involved and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of prevailing on the merits or on the fee claim. (Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 834.)
Normally, a contingent fee is higher than a non-contingent fee because a contingent fee compensates the lawyer for the legal services rendered and for the loan of those services. (Ketchum, supra, 24 Cal.4th at pp. 1132-1133.) The interest rate on that "loan" must be higher than on a conventional loan since a loss of the case will cancel the client's debt to the attorney. (Ibid.) The trial court, however, is "not required" to enhance the basic lodestar figure and party seeking the enhancement bears the burden of proof. (Id. at p. 1138, italics in original.) Additionally, to the extent the trial court has already considered such factors as attorney skill or contingent risk within the lodestar, these factors should not be considered when determining any appropriate enhancement. (Id. at pp. 1138-1139.)
The trial judge is in the best position to evaluate the professional services rendered at trial and the amount of attorney fees to award is a matter within its sound discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.) We will not disturb that determination unless convinced that the trial court's judgment is clearly wrong. (Id. at p. 1095.)
II. Analysis
A. Waiver
Ralphs argues that Plaintiffs waived their right to challenge the lack of a multiplier by accepting payment of the amounts awarded because their challenge to the lack of a multiplier necessarily implicated the lodestar determination. Plaintiffs assert their appeal from that part of the order denying any enhancement to the lodestar amounts is severable and that they merely accepted the lodestar amounts, a benefit of the order that was indisputably owed. Ralphs has the better argument.
As a general rule, a party who voluntarily accepts the benefits of a judgment or order may not appeal from the judgment or order because the two acts "are wholly inconsistent, and an election to take one is a renunciation of the other. [Citations.]" (Mathys v. Turner (1956) 46 Cal.2d 364, 365.) An exception to the general rule "exists where the appellant is concededly entitled to the benefits which are accepted and a reversal will not affect the right to those benefits. [Citations.]" (Ibid.)
Here, the trial court stated that the contingent nature of the litigation did not justify enhancement because the lodestar amounts fully compensated the attorneys for undertaking Plaintiffs' representation at the risk of nonpayment. Should we decide that the trial court erred in taking the contingent nature of the litigation into consideration when calculating the lodestar amounts and that contingent risk had to be compensated by means of a multiplier, the entire fee award would need to be reversed because the trial court would need to recalculate the lodestar amounts without considering contingent risk. Nevertheless, we decline to dismiss the appeal on this basis because Plaintiffs' arguments lack merit.
B. Compensation for Contingent Risk
As a threshold matter, we reject Plaintiffs' assertion that we should conduct a de novo review of the trial court's findings because the trial court failed to apply the proper principles of law in exercising its discretion and the facts relevant to this appeal are undisputed. Nothing about the fee motion was undisputed except for Plaintiffs' right to recover attorney fees. Rather, Ralphs contested the hourly rates (taking into consideration the function, skills and expertise of each timekeeper), the amount of time worked (including time expended on unsuccessful issues and alleged duplicative work and excessive conferencing) and the requested multipliers. Additionally, as discussed below, the trial court applied the proper principles of law in exercising its discretion.
Plaintiffs assert that the trial court erred by refusing to apply a multiplier because the use of multipliers for contingent risk is mandated. Simply put, Plaintiffs are wrong. (Ketchum, supra, 24 Cal.4th at p. 1138 ["the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk"]; accord, Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1240-1241; Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395; Greene v. Dillingham Construction, N.A., Inc. (2002) 101 Cal.App.4th 418, 426-427.)
Plaintiffs concede that the substantial lodestar amounts compensated counsel for delayed payment, their skill, the difficulty, duration and intensity of the litigation and the preclusion of other employment. They assert, however, that the trial court did not compensate counsel for contingent risk. The trial court, however, retained discretion on the use of a multiplier; thus, any refusal to award a multiplier is not error absent a showing that the trial court abused its discretion. In any event, the trial court here did not refuse to consider contingent risk or state that counsel was not entitled to an adjustment for contingent risk; rather, it stated that the lodestar amounts "fully compensate[d] the attorneys . . . 'at the risk of nonpayment or delayed payment . . . .'" A fair reading of this order indicates that the trial court took the contingent nature of the litigation into consideration when it set the lodestar amounts. (Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 395 ["The contingency adjustment may be made at the lodestar phase of the court's calculation or by applying a multiplier to the noncontingency lodestar calculation (but not both)"].)
Thus, the question is whether the trial court abused its discretion when it determined that the lodestar amounts adequately compensated counsel for contingent risk. We conclude that the court's decision on this matter was well within the ambit of its discretion based on the nature and extent of the contingency.
While it is beyond dispute that Plaintiffs' counsel incurred contingent risk when they took this case, that risk ended in August 2000 when the California Supreme Court denied their petition for review of our decision upholding the jury's finding of liability for compensatory and punitive damages. Thereafter, the only uncertain issue was the amount of punitive damages. On this issue, the trial court could consider Plaintiffs' limited success after four of the Plaintiffs refused to consent to a punitive damage award equal to 15 times their compensatory damage recovery in July 2002. (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 248 [degree of success must considered in determining amount of award].) By this comment we do not imply that the work of Plaintiffs' counsel after July 2002 was unnecessary or unreasonable. We simply note that the decision of four Plaintiffs to decline a punitive damage award equal to 15 times their compensatory damage recovery appears to have been a turning point in the litigation that the trial court may have taken into consideration in deciding whether to enhance the fees awarded to compensate Plaintiffs' counsel for their work.
Moreover, the trial court awarded the 2006 rates requested for all timekeepers despite its finding that Plaintiffs failed to demonstrate the reasonableness of the rates. The award of high 2006 rates more than adequately compensated Plaintiffs' counsel for any delay in payment and it was within reason for the trial court to conclude that the award also adequately compensated counsel for the risk they undertook in prosecuting this litigation.
Finally, we reject Plaintiffs' contention that because a fee award is discretionary (Gov. Code, § 12965, subd. (b)), it was uncertain whether the trial court would award them any fees. This assertion ignores case law establishing that a plaintiff prevailing in an anti-discrimination action "'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" (Christiansburg Garment Co. v. E.E.O.C. (1978) 434 U.S. 412, 416-417, quoting Newman v. Piggie Park Enterprises (1968) 390 U.S. 400, 402; accord, Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1405, overruled on other grounds in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.)
In summary, the trial court acted within its discretion in setting the fee award in this case after considering all proper factors.
C. Statement of Decision
Plaintiffs argue that they timely requested a statement of decision and the trial court erred by failing to make findings on all contested facts. They assert we should "require" that trial courts issue written orders with findings when making attorney fee awards and that if a party has requested findings, the trial court must issue them regardless of whether the technical requirement for a statement of decision applies under Code of Civil Procedure section 632.
Code of Civil Procedure section 632 governs statements of decision and "[c]ases decided under [this section] generally have held that a statement of decision is not required upon decision of a motion." (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294 [statement of decision not required on motion for attorney fees]; Ketchum, supra, 24 Cal.4th at p. 1140 ["The superior court was not required to issue a statement of decision with regard to the fee award"]; In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1497 ["[W]e find no basis in statute or case law for a rule requiring the trial court to exercise its discretion to issue a statement of decision in instances where Code of Civil Procedure section 632 does not require it"].) Since a statement of decision was not required, the trial court did not err by failing to issue one and we decline to create a new rule of law requiring a statement of decision when deciding attorney fee motions. In any event, Plaintiffs have failed to explain why the written order issued by the trial court was inadequate to provide for meaningful appellate review as it touched upon the controverted issues noted by Plaintiffs in their request for a statement of decision.
D. Judicial Notice
Ralphs requests that we take judicial notice of various documents from prior appeals and a related appeal that is currently pending. The request is denied because Ralphs has not shown that the documents are relevant to the resolution of this appeal. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [only relevant matters may be judicially noticed], overruled on another point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)
DISPOSITION
The order is affirmed. Ralphs is entitled to its costs on appeal. Plaintiffs shall bear their own attorney fees on this appeal.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.