Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 304904
McGuiness, P.J.
This appeal marks the latest installment of a long-running dispute between appellant Waukeen McCoy and respondent Angela Alioto. In June 1998 McCoy subleased office space from Alioto and the two attorneys began working together as co-counsel in certain cases. However, their professional relationship soon deteriorated in a dispute over the distribution of attorney fees, and in July 1999 McCoy sued Alioto and her law firm (collectively, Alioto) for numerous alleged wrongs, including breach of contract, fraud, racial discrimination and defamation. He later filed a separate lawsuit for malicious prosecution based on claims arising from a separate action. The trial court dismissed all of McCoy’s claims, either on summary judgment or after a bench trial, and awarded costs and attorney fees to Alioto. We affirmed the judgment and fee award in an unpublished opinion, rejecting each challenge McCoy asserted in four consolidated appeals. (McCoy v. Alioto (Apr. 28, 2006, A102945, A106425, A103454, A104172) [nonpub. opn.].) We also awarded costs on appeal to Alioto, as the prevailing party. (Cal. Rules of Court, rule 8.276.)
On September 12, 2006, Alioto filed a motion in the trial court for contractual attorney fees on appeal, basing the fee request on a provision in the parties’ sublease authorizing an award of fees to the prevailing party in litigation involving the lease. Alioto sought fees in the amount of $38,757.50, reflecting a total of 209.5 hours of attorney time billed at $185 per hour, which was the hourly rate previously set by the court when it awarded fees in connection with the judgment. After estimating the amount of attorney time devoted to defending lease-related claims, the court awarded Alioto fees of $12,283.91 for the appeal—less than a third of the amount requested. McCoy now appeals, arguing the court’s method of calculating fees was an abuse of discretion. We disagree and affirm the order.
DISCUSSION
Civil Code section 1717, subdivision (a) states, in relevant part: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs. . . . Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit.” As we observed in the prior appeal, the sublease agreement entered by McCoy and Alioto included a clause providing that the prevailing party in a trial or appeal of any action brought to enforce or interpret the sublease, or declare rights under the sublease, is entitled to recover reasonable attorney fees from the losing party in an amount fixed by the court. McCoy does not dispute that Civil Code section 1717 authorizes an award of attorney fees for Alioto’s defense of lease-related claims on appeal. (See Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499 [“A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise”].) Instead, he disputes the validity of the trial court’s method of apportioning fees between claims related and unrelated to the lease.
Alioto requested fees at the rate of $185 per hour for the following tasks: (1) $26,686.25 for 144.25 hours of work on the three appeals from the underlying judgment; (2) $6,105 for 33 hours of work on the appeal from the attorney fee and cost award; (3) $2,081.25 for 11.25 hours spent preparing for and giving oral arguments; and (4) $3,885 for 21 hours of work opposing a petition for review by the Supreme Court. Alioto sought fees for the entire time spent on the attorney fee appeal, since all the issues in that appeal pertained to the lease. She also asked the court to award full fees for work on the underlying appeals, oral argument and response to the petition for review. Although the substantive appeal concerned several issues that were not relevant to the lease, Alioto argued fairness required an award of full fees because McCoy had intertwined issues regarding the lease with the rest of the case. At the hearing on the motion, however, Alioto’s attorney conceded Alioto could not recover fees for work performed on issues that had nothing to do with the lease. When the trial court asked how it could award appropriate fees without a more detailed breakdown of work performed on each specific issue, Alioto’s counsel suggested the court could determine the relative amount of attorney work devoted to each issue by examining the appellate briefs. McCoy’s counsel concurred with this suggestion, remarking that a “focus on page counts [in the briefs] is a good way of looking at this.” Based on the pages of appellate briefing devoted to addressing McCoy’s Unruh Act claim, McCoy’s counsel urged the court to award approximately one-sixth of the total fees Alioto sought for the appeal. Counsel agreed $185 was an appropriate hourly rate.
After taking the matter under submission, the trial court issued an order awarding total attorney fees of $12,283.91. The court determined that approximately 19.4 percent of Alioto’s respondent’s brief and 11.5 percent of Alioto’s response to the petition for review were dedicated to arguments concerning the lease. Accordingly, the court awarded 19.4 percent of the $26,686.25 requested for appellate briefing ($5,177.13) and 11.5 percent of the $3,885 requested ($446.78) for responding to the petition for review. In addition to these sums, the court awarded the full amount requested for work on the attorney fee appeal ($6,105, for 33 hours) plus compensation for approximately one quarter of the time spent preparing for and giving oral arguments ($555, for 3 hours out of 11.25 hours claimed). McCoy now argues the trial court’s method of calculating fees was “irrational” and constituted an abuse of discretion. We disagree.
In keeping with the equitable principles underlying Civil Code section 1717, “the trial court has broad authority to determine the amount of a reasonable fee. [Citations.]” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “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.’ [Citations.]” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)
Fee-setting generally begins by calculating the “lodestar,” which is “the number of hours reasonably expended multiplied by the reasonable hourly rate. . . . The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest, supra, 20 Cal.3d at p. 49.)” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) This approach is generally recognized as an appropriate way to calculate fees because it “anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. [Citation.]” (Ibid.) McCoy incorrectly asserts the trial court failed to use the lodestar method. It did. The court calculated fees based on the estimated number of hours worked on lease-related issues times an hourly rate McCoy conceded was reasonable. The fact that the court had to apportion time among various issues, due to the mixture of contract-related claims and other claims, does not alter the basic nature of the calculation, which was done according to the lodestar method.
Nor do McCoy’s complaints about the trial court’s method of apportionment persuade us to reverse the award. As an initial matter, we are inclined to find that McCoy is estopped from raising this argument by his counsel’s express approval of the “page count” strategy at the hearing on the motion. (See, e.g., In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501 [where a party’s own conduct induces the commission of an error, under the doctrine of invited error the party is estopped from asserting the alleged error as a ground for reversal].)
Even if the issue is not waived or otherwise barred, it fails on the merits. It is true that Alioto was only entitled to recover attorney fees for work related to the lease contract. “Where a cause of action based on the contract providing for attorney’s fees is joined with other causes of action beyond the contract, the prevailing party may recover attorney’s fees under [Civil Code] section 1717 only as they relate to the contract action. [Citations.]” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129.) However, “[a]pportionment of a fee award between fees incurred on a contract cause of action and those incurred on other causes of action is within the trial court’s discretion [citation] . . . .” (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111; see also Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1083 [abuse of discretion in apportionment of fees is established only when the trial court’s ruling exceeds the bounds of reason, considering all the circumstances before it].) The trial court here did not abuse its ample discretion in awarding fees. Its method of apportioning fees in accordance with the relative amount of briefing devoted to contract-related issues was objective, rational, and based on suitable evidence of an attorney’s efforts—the final work product. As McCoy’s own counsel observed below, absent more detailed time records, apportionment by page counts makes sense. The court rejected Alioto’s arguments that the issues were sufficiently intertwined to justify an award of the full amount of fees, and instead the court awarded a percentage that was only slightly greater than the percentage urged by McCoy’s own counsel. Its calculation method was not arbitrary or beyond the bounds of reason.
Finally, McCoy’s complaint that the court merely guessed at the figure to be awarded for oral argument does not establish a basis for reversal. The court observed the only evidence relevant to the apportionment of oral argument preparation and delivery consisted of McCoy’s claim that most of the argument concerned the parties’ fee sharing agreement and McCoy’s attempt to recover in quantum meruit. Under these circumstances, it was reasonable for the court to determine oral argument fees using a similar percentage to the one used to apportion the fees for appellate briefing. Although the percentage of oral argument time is higher than the percentage of briefing time compensated (26.67 percent, as compared to 19.4 and 11.5 percent), this increase was justified by counsel’s need to prepare for oral argument on the attorney fee appeal as well. McCoy does not dispute that all of the issues in his previous appeal of attorney fees were related to the contract and thus recoverable under Civil Code section 1717. In any event, given the interrelated nature of the claims in McCoy’s four separate appeals, the trial court would likely have been justified in concluding the issues were so intertwined as to make it impracticable to separate Alioto’s time in preparing for and delivering oral arguments into compensable and noncompensable segments, in which case it could have awarded fees for all of the work related to oral arguments. (See Erickson v. R.E.M. Concepts, Inc., supra, 126 Cal.App.4th at pp. 1085-1086 [contract and tort claims were sufficiently interrelated to justify a fee award despite bifurcation of trial]; Abdallah v. United Savings Bank, supra, 43 Cal.App.4th at pp. 1110-1111 [tort and RICO claims joined with contract claims were sufficiently interrelated to justify a full award of fees].)
DISPOSITION
The order awarding fees to Alioto is affirmed. Alioto is once again awarded costs as the prevailing party on appeal.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.