Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV474699
Lambden, J.
Good Nite Inn Management, Inc. (Good Nite Inn Management) and Good Nite Inn, Redwood Inc. (collectively, Good Nite Inns) appeal from the court’s order awarding attorney fees to Sara Ahmed (Sara) in the amount of $210,625.75. Good Nite Inns contend that the court included fees associated with the defense of Sara’s husband, Kazi Ahmed (Kazi), but he was not entitled to fees under the statute. They also argue, among other things, that the court should have apportioned the fees related to Sara’s defense of Good Nite Inns’ claims from those associated with Sara’s prosecution of her cross-claims, since statutory fees were proper only for Sara’s cross-claims. They also object to the trial court’s decision to apply a 1.5 multiplier to the lodestar amount. We are not persuaded by the arguments of Good Nite Inns and affirm the judgment.
BACKGROUND
Good Nite Inn Management operates 12 economy class hotels throughout California. It employed Kazi as a business manager at Good Nite Inn in Redwood City (the Redwood Hotel) until September 29, 2006. In 2006, Kazi sued Good Nite Inns for compensation for overtime and missed meal periods. The trial court held a bench trial and found in favor of Kazi on his claims for overtime and missed meal periods. It also found that their failure to pay overtime wages violated the Unfair Competition Law, and awarded him attorney fees. Good Nite Inns appealed, and we affirmed in a nonpublished decision, Ahmed v. Good Nite Management, Inc. (Mar. 19, 2009, A120400) (Ahmed I).
Good Nite Inn Management employed Sara as a desk clerk at the Redwood Hotel until March of 2008, when she resigned. When Sara resigned, she requested from Good Nite Inns money she claimed she was due for overtime and meal break compensation. Following this request, Good Nite Inns sued Sara and Kazi (collectively, the Ahmeds) for fraud, conversion, breach of fiduciary duty, breach of contract, and negligent misrepresentation. In their answer, the Ahmeds requested reasonable attorney fees. Sara filed a cross-complaint against Good Nite Inns for overtime and missed break compensation. In her cross-complaint, she requested attorney fees pursuant to Labor Code section 1194.
All further unspecified code sections refer to the Labor Code.
The action and cross-action proceeded to a bench trial, and the court ruled against Good Nite Inns on all of their causes of action. The court awarded Sara $26,590.66 on her cross-complaint. Good Nite Inns appealed and we affirmed in a nonpublished decision, Good Nite Inn Management, Inc. v. Ahmed (Nov. 29, 2010, A127637) (Ahmed II).
The facts underlying this action are detailed in Ahmed II, and are not repeated here.
On February 24, 2010, the Ahmeds filed a motion in the superior court for attorney fees for the litigation in Ahmed II. They requested fees pursuant to sections 1194 and 218.5.
The court held its first hearing on Sara’s motion for attorney fees on March 26, 2010. At the hearing, the court indicated that it favored using a multiplier. It also stated that it was inclined to use the hourly rate of $350, which was requested by Mary T. Dumont, the Ahmeds’ counsel. The court also explained that it did not believe apportionment between the fees for defending Good Nite Inns’ action and for prosecuting Sara’s cross-complaint was appropriate because the issues were inextricably intertwined. The court requested supplemental briefing on the issue that the Ahmeds had not requested attorney fees under section 218.5 in their cross-complaint. The court asked the parties to brief whether it could award Sara fees for her cross-claim for meal break compensation under section 218.5 and, if not, how could the fees be apportioned.
After receiving supplemental briefing, the court held the second hearing on Sara’s request for attorney fees on June 25, 2010. At the hearing, Dumont argued that the court should award the fees associated with Kazi’s defense of the cross-complaint. She also explained that she had first requested attorney fees when responding to Good Nite Inns’ complaint, but did not specify section 218.5. She stated that she requested fees pursuant to section 1194 in the Ahmeds’ cross-complaint.
On August 18, 2010, the court filed its order granting in part and denying in part Sara’s request for attorney fees. The court found that both sections 218.5 and 1194 provided a statutory basis for awarding attorney fees to Sara on her cross-complaint. The court ruled that the fees awarded would include the hours associated with defending against Good Nite Inns’ claims of fraud because the fraud claims were “inextricably linked” to Sara’s statutory wage action set forth in her cross-complaint.
The trial court found the lodestar amount to be $142,250.50 based on the 477.95 hours reported by Sara’s counsel. The court concluded that “no unreasonable amount of time devoted to any of the tasks performed in this action” was requested. The court stressed that, if counsel had not been familiar with the prior actions in this matter, more time would have been expended. The court rejected Dumont’s argument that she was entitled to fees related to Kazi’s defense and deducted the time devoted exclusively to defending Kazi, which was 71.50 hours. The court adopted previous courts’ findings that counsel’s hourly rate of $350 was consistent with the rates charged by attorneys in the community for similar work. The court also deducted $2,750 for sanctions awarded to Good Nite Inns that were still outstanding.
When considering the multiplier, the court noted that counsel for Sara had worked for over two years without receiving any payment, and that the parties intensively and aggressively litigated this action, which resulted in a 10-day court trial. The court concluded: “Our Supreme Court has repeatedly instructed that in cases such as this, where statutory fees are awarded after the performance of the work, where no payment is received in the interim, and the counsel bears the risk of no payment whatsoever, an upward multiplier is appropriate to ensure that counsel is fully compensated. This court finds that a multiplier of 1.5, reflective of delay in payment, is appropriate. The lodestar amount of $142,250.50 is increased by 1.5 to $213,375.75 less $2,750; the final award is $210,625.75.”
Good Nite Inns filed a timely notice of appeal.
DISCUSSION
I. The Record and Briefs on Appeal
Sara contends that Good Nite Inns’ opening brief in this court fails to comply with the appellate rules and therefore we should deem Good Nite Inns’ challenges to the attorney fees order waived on appeal. Sara maintains that Good Nite Inns do not set forth a summary of the significant facts in the record in violation of California Rules of Court, rule 8.204 (a)(2)(C). She also asserts that they do not specify what facts they are incorporating from Ahmed II as required by California Rules of Court, rule 8.147(b), but simply state that they are incorporating the facts and citations set forth in Ahmed II (and in their briefs related to Ahmed II). Additionally, Sara asserts that Good Nite Inns’ statement of facts is incomplete, contains misrepresentations, and improperly incorporates argument.
We agree that the statement of facts set forth in the opening brief of Good Nite Inns is deficient in many respects. Most significantly, many of the relevant facts are not provided and Good Nite Inns failed to make the proper citations to the record in the prior appeal. Indeed, the failure of both parties to set forth the relevant facts has made this court’s job much more difficult. However, we do not consider the violations to be so egregious that we need to strike any brief or conclude that Good Nite Inns have waived all of their arguments on appeal. Accordingly, we will consider the merits of the appeal.
II. Standard of Review
An attorney fee award is reviewed for abuse of discretion. (Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 233.) Abuse of discretion will be found only when it is shown there was no reasonable basis for the trial court’s action. (Ibid.) In the context of an attorney fee award, reversal requires us to conclude that the trial court “ ‘exceeded the bounds of reason.’ ” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) “ ‘The “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’––meaning that it abused its discretion.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) However, de novo review of a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213.)
In ruling on a motion for attorney fees, the trial court is not required to issue a statement of decision addressing disputed legal and factual issues. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1348-1349.) “No specific findings reflecting the court’s calculations [are] required. [Citation.] ‘The record need only show that the attorney fees were awarded according to the “lodestar” or “touchstone” approach.’ [Citation.] On appeal we infer all findings in favor of the prevailing parties.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 254.)
III. Fees Associated with the Defense of Kazi
Good Nite Inns claim that the lower court’s award of attorney fees included fees for Kazi’s defense and such an award was erroneous because he was never a party to Sara’s cross-claim for wages. Good Nite Inns maintain that Kazi had no right to any fees for his defense under a statute or a contract and the court acknowledged these facts at the hearing.
Contrary to Good Nite Inns’ contention, the trial court rejected counsel’s argument that she was entitled to attorney fees related to Kazi’s defense. The court expressly deducted the time exclusively devoted to defending Kazi, which was 71.50 hours.
In their reply brief, Good Nite Inns clarify that they are objecting to the award of fees related to the legal representation of both Sara and Kazi. Other than state that the award included fees for the joint representation of the Ahmeds, Good Nite Inns offer no evidence in the record to support this assertion. They do provide citations to three documents in the record, but provide no guidance as to what information on these cited documents is significant. The documents cited are the court’s order regarding the attorney fees, the declaration of Attorney Dumont submitted in support of Sara’s motion for attorney fees, and Dumont’s attorney fee record. As already noted, the court’s order does not support Good Nite Inns’ position. Further, without any explanation as to what they deem significant in Dumont’s attorney fee record, we conclude that Good Nite Inns has not met its burden of demonstrating that this document shows that the hours devoted to the defense of Kazi are included in the fee award.
The third document cited by Good Nite Inns, Dumont’s declaration, contradicts Good Nite Inns’ argument. Dumont avows that she apportioned her time to reflect the time for those tasks involving work on behalf of Kazi and work on behalf of Sara. Dumont declared as follows: “Attached to this memorandum are Cross-Complainant’s revised attorney fee records. The records have been modified to delete all billings related exclusively to work performed on behalf of Kazi Ahmed, as indicated on the prior bills. Specifically, all expenses related to Mr. Ahmed’s deposition, which includes correspondence, the protective order, preparation of Mr. Ahmed and defense of his deposition have been deleted. Additionally, responding to and propounding written discovery that pertained solely to Mr. Ahmed has been deleted. The following dates indicated written discovery work was in response to requests or demands with respect to each of the Ahmeds individually, but the time was not separately recorded. Accordingly, I have applied a 50/50 ratio as to work done on January 7, 2009[, ] and April 6, 2009. As to April 11, April 25, and May 6, I have allocated one-third to Mr. Ahmed. The records indicate two motions were directed at Sara and one at Kazi Ahmed; accordingly[, ] I have allocated my time in that proportion. Also attached to this declaration are the original submissions with the changes highlighted. The modifications have resulted in a reduction of the lodestar by 71.5 hours.”
The trial court is in the best position to evaluate whether the hours requested for legal services accurately reflected the time spent exclusively on behalf of Sara or included services rendered on behalf of Kazi’s defense. (See PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) Moreover, Good Nite Inns’ failure to support their conclusory statement with evidence from the record or any legal authority is sufficient reason for rejecting their argument. (See, e.g., People v. Stanley (1995) 10 Cal.4th 764, 793; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) Accordingly, we conclude that the lower court’s award did not improperly include fees for services rendered for the joint representation of the Ahmeds.
IV. Awarding Fees Under the Statutes
“Unless authorized by either statute or agreement, attorney’s fees ordinarily are not recoverable as costs. [Citations.]” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 127-128 (Reynolds).) Here, the trial court found that both sections 1194 and 218.5 authorized attorney fees.
Good Nite Inns contend that the lower court erred in awarding fees pursuant to section 218.5, because Sara requested fees pursuant to section 1194, not section 218.5, in her cross-complaint. Sara responds that she satisfied the requirement of requesting attorney fees upon the initiation of the action because she asked for attorney fees in her answer to the operative complaint of Good Nite Inns, and the complaint and cross-complaint comprise one action.
Section 218.5 provides in relevant part as follows: “In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action....” This statute contains a reciprocal fee recovery provision in favor of the “prevailing party” in certain wage disputes.
We need not settle the question of the correct construction of section 218.5 if we conclude that the trial court did not abuse its discretion in awarding fees under section 1194, since the trial court found both sections 218.5 and 1194 provided a statutory basis for awarding attorney fees to Sara. It is undisputed that Sara was entitled to attorney fees for the prosecution of her cross-claims under section 1194, but Good Nite Inns maintain that she was not entitled to attorney fees for her defense of their fraud claims because their fraud claims are not covered by section 1194.
At oral argument, Good Nite Inns contended that the trial court considered statutory fees only under section 218.5 and Sara did not request fees under section 1194 in her motion for fees. This argument is simply false. She requested fees under both statutes.
Section 1194, subdivision (a) reads: “(a) Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” The language of section 1194 evinces a nonreciprocal or unilateral attorney fee provision in favor of the prevailing employee-plaintiff suing for unpaid minimum wages or overtime compensation.
The trial court found that the fraud claims alleged by Good Nite Inns were inextricably connected to Sara’s unpaid wage claims and therefore the fees could not be apportioned. Since Sara was entitled to attorney fees under section 1194, subdivision (a) in the prosecution of her unpaid wage claims, the court determined that she could receive her legal fees related to her defense of Good Nite Inns’ fraud claims under the doctrine of inextricably connected claims.
As a general rule, a prevailing party entitled to fees should be awarded attorney fees for all hours reasonably spent on the litigation. (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 249). “Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Reynolds, supra, 25 Cal.3d at pp. 129-130; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1132-1133.)
Our independent review of the record establishes that the lower court did not abuse its discretion in finding that both the factual and legal issues related to Sara’s defense of the fraud claims and prosecution of her unpaid wage claims could not be disentangled, making apportionment inappropriate. Good Nite Inns filed their complaint alleging fraud against the Ahmeds after Sara requested unpaid overtime and unpaid meal break wages. Good Nite Inns alleged that Sara had been compensated for hours that she never worked. All of Good Nite Inns’ claims were based on an assertion that the Ahmeds deliberately or negligently misrepresented or concealed Sara’s time records. The exact same issues appeared when Good Nite Inns answered Sara’s cross-complaint for unpaid wages based on unpaid overtime and meal break compensation. Good Nite Inns asserted that her claims were barred because of her fraud. Thus, Sara could prevail on her claims for unpaid wages only if the court first rejected Good Nite Inns’ claims that she changed her time logs with the intention of inflating the number of hours she worked.
At trial, Good Nite Inns argued that Sara changed her time logs and did not follow policy regarding the use of the time clock. Similarly, when defending against Sara’s cross-claim for meal break compensation, they maintained that they had a time clock system and, if there were any inaccuracies regarding the time Sara worked, the inaccuracies were due to Sara’s failure to clock in and out as required by policy and her deliberate attempt to boost the hours she actually worked. Thus, the evidence at trial for both Good Nite Inns’ claims and Sara’s cross-claims concerned the question of whether the Ahmeds changed Sara’s time logs to over report the hours Sara worked or whether the changes had another reasonable explanation, such as the understaffing at the Redwood Hotel.
Good Nite Inns cite Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780 (Cassim), Carver v. Chevron, U.S.A., Inc. (2004) 119 Cal.App.4th 498 (Carver), and Track Mortgage Group, Inc. v. Crusader Ins. Co. (2002) 98 Cal.App.4th 857 (Track Mortgage) to support their argument that the court should have apportioned the fees, but reliance on these cases is inappropriate. Cassim and Track Mortgage involve a narrow exception in insurance bad faith cases to the rule that each party pays his or her own attorney fees when no statute or contract provides for the award of attorney fees. (See Brandt v. Superior Court (1985) 37 Cal.3d 813 (Brandt).) Brandt fees amount to a type of damages, rather than attorney fees. (Ibid.) The Brandt rule provides that the insured’s reasonable attorney fees incurred to compel payment of benefits due under an insurance policy are recoverable as damages in a “bad faith” action against the insurer. (Id. at p. 817.) Since entitlement to Brandt fees “as compensatory damages is premised on an insured’s need to hire an attorney to vindicate his or her contractual rights under an insurance policy, ” the fees recoverable “may not exceed the amount attributable to the attorney’s efforts to obtain the rejected payment due on the insurance contract.” (Cassim, supra, at p. 807, italics omitted.) Thus, the plaintiff in Cassim could recover attorney fees for work done to obtain benefits under the insurance policy, but the plaintiff could not recover for work done on a tort cause of action for bad faith. (See Cassim, supra, at pp. 807-813.)
Similarly Carver, supra, 119 Cal.App.4th 498, involves a situation where apportionment was mandated by a judicial rule or legislative policy precluding fees for intertwined claims. The Carver court considered the allocation of attorney fees between work attributable to claims under the Cartwright Antitrust Act (Bus. & Prof. Code, § 16750, subd. (a)), which allowed attorney fees to a prevailing plaintiff but not to a prevailing defendant, and those attributable to other causes of action, in which the prevailing defendant was entitled to attorney fees. The court concluded as a matter of law that the Cartwright Act’s unilateral fee-shifting provision precluded an award of attorney fees to a prevailing defendant for defending claims common to both the Cartwright Act and non-Cartwright Act causes of action, and that the trial court properly apportioned fees by disallowing those fees “related exclusively, or by inextricable overlap, to the Cartwright Act issues, ” even though the work in question may have been relevant to other aspects of the case. (Carver, supra, at pp. 501, 506.) The court concluded that permitting fees for the Cartwright Act issues would defeat the Cartwright Act’s policy of providing for a nonreciprocal fee to encourage plaintiffs in antitrust cases to enforce the state’s public policy. (Carver, supra, at pp. 504-505.)
The courts in Cassim, Track Mortgage, and Carver were required to apportion fees even when the issues were intertwined. In contrast, here, the trial court was not required to deny overlapping attorney fees, and Good Nite Inns has not identified any policy underlying section 1194 that would be defeated by applying the general rule that attorney fees need not be apportioned when “incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (See Reynolds, supra, 25 Cal.3d at pp. 129-130.)
Good Nite Inns also rely on Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672 (Bell), and Heppler v. J. M. Peters Co. (1999) 73 Cal.App.4th 1265 (Heppler), but these cases are distinguishable. In Heppler, the appellate court concluded that the trial court abused its discretion in failing to allocate fees. (Heppler, supra, at p. 1297.) The plaintiffs in Heppler sued a developer, who cross-complained against four subcontractors for construction defects. The trial court awarded plaintiffs all of their requested attorney fees against one subcontractor, Martin Roofing Company, Inc., pursuant to a contract provision. (Id. at p. 1272.) When reversing, the Court of Appeal noted that this subcontractor’s “part of the case could have been tried in considerably less time than seven weeks had the trial not taken up issues that involved the other nonsettling subcontractors.” (Id. at p. 1297.) The appellate court emphasized that it would be “eminently unfair to tag” this one subcontractor with all of the plaintiffs’ attorney fees for the entire seven-week trial. (Ibid.) The court concluded that not all of the issues involving this one subcontractor’s case “were integrally associated with the other issues in the case; at the very least, some of them could have been severed and isolated for purposes of the attorney fees award. Certainly, there were multiple days of trial that were devoted exclusively to soil issues.” (Ibid.)
In Bell, the appellate court also reversed the trial court’s award of attorney fees. This case concerned a football coach’s lawsuit against the school district that alleged four violations of the Brown Act and 11 other tort causes of action. (Bell, supra, 82 Cal.App.4th at pp. 678-680.) The trial court awarded attorney fees and costs on all causes of action based on the attorney fees provision of the Brown Act. (Bell, at p. 686.) The Court of Appeal concluded that the lower court abused its discretion, and explained: “Although the Brown Act violation may have procedurally facilitated the wrongful termination or retaliatory firing, it did not substantially beget it. Simply stated, they constitute two separate and distinct claims, one entitled to statutory fees and the other not.” (Id. at p. 688.) The court also noted that plaintiff’s counsel made candid admissions that suggested the fees could be apportioned between the Brown Act violations and the tort actions. (Bell, at p. 689.)
The Bell court affirmed the rule that apportionment of attorney fees “rests within the sound discretion of the trial court.” (Bell, supra, 82 Cal.App.4th at p. 687.) It pointed out that attorney 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. [Citation.] 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. [Citation.]” (Ibid.)
In both Heppler and Bell, a clear line of demarcation existed between the compensable and noncompensable causes of action. The attorney fees expended in pursuing claims against the other subcontractors in Heppler fell outside the compensable contract-based attorney fees. The attorney fees associated with bringing the tort causes of action in Bell existed independently of the Brown Act causes of action. In contrast, here, as already discussed, the defense of the fraud claims involved the same issues and evidence necessary to establish Sara’s cross-claims. Good Nite Inns’ claims and Sara’s cross-claims involved the central theme of the accuracy of Sara’s reported time logs and the reasons for the numerous changes in her time logs.
Good Nite Inns complain that counsel for the Ahmeds did not attempt to maintain separate billings for the defense of the complaint and for the prosecution of the cross-complaint. This failure, according to Good Nite Inns, caused the lower court to conclude that it could not apportion the attorney fees. They assert that the court would not have found it impossible to apportion the fees had Dumont segregated her billings. They also argue that it was not impossible to apportion fees because Dumont apportioned the fees when making a demand on Good Nite Inns prior to trial. Prior to trial, Dumont wrote to opposing counsel that Sara was willing to accept Good Nite Inns’ tender subject to certain conditions, and asserted the following: “Attorney fees of $25,000 (the $15,000 was prorated....)” Furthermore, Good Nite Inns maintain that more than $13,000 of the fee award related to time spent defending the complaint before Sara had even filed her cross-complaint. This amount, according to Good Nite Inns, should have been deducted from the fee award.
The trial court did not find that apportionment was inappropriate simply because of the billing records of Sara’s counsel. Rather, it found that the work of Sara’s counsel in defending against Good Nite Inns’ claim of fraud was “inextricably linked” to her statutory wage action set forth in her cross-complaint, and therefore the fees for each could not be separated. Similarly, the court believed the work done prior to the filing of the cross-complaint related to issues litigated in the cross-complaint. At the hearing, when counsel for Good Nite Inns argued that the billing for work completed prior to the filing of the cross-complaint should be deducted from the calculation of attorney fees, the court responded: “I understand. Once again, I think that clearly goes to essentially the court’s determination that it’s impossible to determine––to essentially apportion and to segregate, even though there is a temporal lapse of timing, there’s a delay of time, these matters were all together, completely intertwined.”
Good Nite Inns’ argument that the settlement offer made months before trial showed that apportionment was appropriate is inadequate. The fact that counsel was willing to settle prior to trial for a specific amount does not mean that the work already completed did not relate to Sara’s proof of her claims in her cross-complaint.
The question before this court is not whether the trial court could have apportioned the fees, but whether it abused its discretion in refusing to apportion the fees. As already noted, “[a]ttorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Reynolds, supra, 25 Cal.3d at pp. 129-130.)
We agree with the lower court that Sara’s claims for compensation for meal breaks and for unpaid overtime worked and Good Nite Inns’ fraud claims against the Ahmeds were inextricably entwined and depended upon the evidence related to the time logs and staffing problems at the Redwood Hotel. As the trial court noted, “In this case, the cross-complaint really couldn’t be determined until we dealt with the lengthy issues that were set forth in the complaint initiated by” Good Nite Inns. We therefore conclude that the lower court correctly awarded attorney fees for counsel’s work on behalf of Sara in both defending Good Nite Inns’ complaint and prosecuting Sara’s cross-complaint.
V. The Multiplier of 1.5
The court used a lodestar of $142,250.50, and applied a multiplier of 1.5. Good Nite Inns do not mount a challenge to the lodestar amount, but object to the multiplier.
A “lodestar” or “touchstone” approach should be used to determine an attorney fee award. (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 448-449, disagreed with on another issue in Greene v. Dillingham Construction N.A., Inc. (2002) 101 Cal.App.4th 418, 424-425.) “[T]he lodestar method vests the trial court with the discretion to decide which of the hours expended by the attorneys were ‘reasonably spent’ on the litigation. [Citation.] The lodestar amount is the product of the number of hours ‘reasonably spent’ and the reasonable rate.” (Meister, at p. 449.) “In reviewing a challenge to a trial court decision applying a lodestar multiplier to an award of attorney fees, the standard of review is abuse of discretion, since the trial judge was presumably in the best position to determine the value of the services rendered by counsel....” (Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 622.)
After determining a touchstone or lodestar figure based on time spent and hourly rate, the trial court may augment or diminish the lodestar by considering several factors: “(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, (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).)
In the present case, ample evidence in the record supported the lower court’s decision to apply a multiplier. The trial court sat through a 10-day trial and was in the best position to assess counsel’s skill and the complexity of the issues. Dumont, the attorney for the Ahmeds, presented a declaration establishing that the risk factors were high for this litigation because she knew that employees of Good Nite Inns were afraid to testify and would be unavailable as witnesses. Additionally, Dumont declared that, even though she did not take the case on a contingency fee basis, she could not get paid unless the Ahmeds prevailed in their lawsuits and she had not been paid since she had started this representation two years earlier. Dumont, a solo practitioner, stated that this lawsuit had prevented her from accepting other substantial litigation.
Furthermore, Dumont presented evidence that the litigation was contentious and involved intensive discovery. There was evidence of complexity as Dumont explained that she was unfamiliar with the daily time records that Good Nite Inns presented as its principal proof of fraud, and she had to learn how to interpret these long forms.
Good Nite Inns complains that the trial court initially stated that it was “disinclined to grant enhancements” and then, after hearing further argument, decided to apply a multiplier of 1.5. They seem to imply that the court must have committed error because it first was going to rule in their favor.
The record, however, shows that the trial court was initially inclined to grant a multiplier, then changed its mind, and then changed its decision again after listening to argument. The court’s first hearing on the motion for attorney fees was on March 26, 2010, and the court indicated it was going to grant the multiplier. The court then requested supplemental briefing. The next hearing was held on June 25, 2010, and in the morning the court announced it was “disinclined to grant enhancements[.]”
After listening to further argument, the trial court announced in the afternoon of June 25, 2010, that it had now decided to use a multiplier of 1.5. The court explained: “And so there are multiple factors: Novelty; complexity; frankly, I did a very good job; and I haven’t been paid.” The court continued: “Finally, my comments to the contrary this morning, you’ve convinced me, Ms. Dumont, that not only the lodestar, but the enhancement requested of 1.5 times with the factors that you have articulated for the court and the appellate decisions that talk about the enhancement, your, essentially, requirement that you worked so much time on this specific case, the delay in payment, your not receiving anything for such a long period of time, here we have almost two years past representation, six months past the court’s verdict in this case, and you still haven’t been compensated, all of the other factors that you articulated, the complexity and uniqueness of the issues require someone with the familiarity you had in the fist case that was initiated on behalf of Kazi Ahmed. Someone coming new to this case would have invariably charged significantly greater time and expenses. So you’ve convinced the court that that is appropriate.”
The court’s decision to reverse its earlier tentative ruling after it heard argument does not demonstrate that its ultimate, well-reasoned decision was an abuse of discretion. To the contrary, the court explained the factors it considered and these factors were properly evaluated when deciding whether to apply a multiplier.
Good Nite Inns raise several other challenges to the enhancement. They repeat their argument that a portion of the award included hours devoted to the defense of Kazi. Additionally, they maintain that some of the hours included in the award related to work in Ahmed I, that the court should have sustained their objections to many of the statements in Dumont’s declaration, that Dumont did not take the case on a contingency fee basis, that the court should have considered that Dumont was paid for her work in other cases involving Good Nite Inns, and that the issues of the case were not complex or unique.
In urging us to reverse the award of the multiplier, Good Nite Inns assert that many of the factors stressed by the trial court are already considered in the lodestar and they cite Perdue v. Kenny A. ex rel. Winn (2010) ___ U.S. ___, 130 S.Ct. 1662. In Perdue, the United States Supreme Court stated that the lodestar used in federal courts includes all relevant factors constituting a reasonable attorney fee, including the novelty and complexity of a case and the quality of an attorney’s performance. (Id. at p. 1673.) Good Nite Inns’ reliance on federal authority, however, is misplaced. Our state courts have observed that “an upward or downward adjustment from the lodestar figure will be far more common under California law than under federal law.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1173.)
Good Nite Inns also claim that it was unfair to enhance the lodestar based on Dumont’s familiarity with the case and skills since the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. (See Ketchum, supra, 24 Cal.4th at p. 1139.) California courts award a multiplier when they find that the representation was exceptional or “when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation.” (Ibid.) Here, the trial court found that the representation was exceptional partly because Dumont’s familiarity with the issues permitted her to be more efficient. Such a consideration was appropriate when deciding whether to apply a multiplier.
Good Nite Inns cite Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 (Graham), to support their argument that an enhancement fee should not be applied for the time related to the attorney-fee motion. In Graham, the lawsuit was dismissed as moot after the parties settled, but the parties litigated the plaintiffs’ request for private attorney general attorney fees. The court in Graham considered the appropriateness of a multiplier for fees for litigating attorney fees. (Id. at pp. 579-586.) The court refused to create a rule not allowing an enhancement, but observed that some of the enhancement factors that apply to public interest litigation are not as relevant to attorney fee litigation. (Ibid.)
As to Good Nite Inns’ complaint regarding the lower court’s refusal to sustain their objections to Dumont’s declaration, they do not specify what rulings resulted in prejudicial error. Consequently, they have waived raising this issue on appeal. Furthermore, they seem to be arguing that considering Dumont’s declaration as evidence in support of a fees motion was improper. This argument lacks any merit, as it is obvious that the attorney’s declaration is evidence to be considered when deciding a motion for attorney fees. (See Ketchum, supra, 24 Cal.4th at p. 1133 [the court considered the attorney’s report of the hours reasonably spent and multiplied that by the hourly prevailing rate].)
Accordingly, we conclude that Good Nite Inns have failed to establish that the lower court abused its discretion when applying a multiplier of 1.5 to the lodestar amount.
DISPOSITION
The judgment is affirmed. Good Nite Inns is to pay the costs of appeal.
We concur: Haerle, Acting P.J.Richman, J.
As with many of the cases cited by Good Nite Inns, Graham, which concerns the application of a multiplier to litigation that involved only the issue of attorney fees, is not factually similar to the present case.