Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCU208593, Valeriano Saucedo, Judge.
Morris Polich & Purdy, Richard H. Nakamura, Jr.; Petrie, Dorfmeier & Morris and Dale Dorfmeier for Defendant and Appellant.
Law & Kolakowski, Douglas D. Law and Leonard M. Kolakowski for Plaintiffs and Respondents.
OPINION
Kane, J.
In our decision in Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785 (Robertson I), we held the lodestar adjustment method of calculating attorney fees was applicable under the fee-shifting statute of the Song-Beverly Consumer Warranty Act (Song-Beverly Act). However, we remanded the case for recalculation of the award of attorney fees because the trial court applied some of the same factors in determining both the lodestar amount and the multiplier. (Robertson I, supra, at p. 822.) In its redetermination of the fee award on remand, the trial court used the same hourly rate it did in Robertson I for purposes of computing the lodestar amount, and then enhanced that amount by a multiplier of 1.35 -- which was considerably higher than the .50 multiplier in Robertson I. Consequently, the attorney fees awarded on remand concerning the trial portion of the case were substantially more than the prior award. In addition, the trial court awarded attorney fees concerning the appeal in Robertson I in an amount that included a multiplier of .95. The total award of fees and costs, including the redetermined attorney fees as to the trial portion of the case, attorney fees on appeal and costs came to $545,723. Defendant Fleetwood Travel Trailers, Inc. (defendant) appeals from the award of attorney fees, contending the trial court once again failed to eliminate the double counting of factors in the lodestar and multiplier or otherwise abused its discretion in computing fees. Plaintiffs Francis and Lorna Robertson (plaintiffs) respond that the trial court correctly reassessed the amount of attorney fees under the evidence submitted in connection with the new hearing without any duplication of factors, therefore the award should stand. We conclude that plaintiffs are correct and thus affirm the trial court’s fee award.
The Song-Beverly Act is set forth in Civil Code section 1790 et seq. The attorney fee provision thereof is found in Civil Code section 1794, subdivision (d).
For convenience, we adopt the parties’ terminology by referring to the proceedings in the trial court that preceded the first appeal as Robertson I. When we are referring to our opinion in Robertson I, it will be clear that we are doing so from the context of the discussion and our use of citations and page numbers.
The attorney fees awarded for the trial portion of the case were $231,187 in Robertson I. In the postremand award, that figure was increased to $376,812. The trial court awarded additional attorney fees of $141,285 relating to the appeal in Robertson I. These totals included the attorney fees that were incurred in connection with the motions for attorney fees. For convenience we refer to dollar amounts only, not cents.
FACTS AND PROCEDURAL HISTORY
The Remand of Attorney Fees in Robertson I
In the underlying litigation that preceded our decision in Robertson I, the jury found that defendant violated the Song-Beverly Act. A monetary judgment was entered in plaintiffs’ favor on February 24, 2005, and plaintiffs moved to recover their attorney fees under Civil Code section 1794, subdivision (d), of the Song-Beverly Act. The trial court awarded attorney fees of $231,187, which consisted of $145,080 in fees incurred through trial, which amount was increased by a fee multiplier of .50 for a subtotal of $217,620, plus an additional $13,566 in fees attributable to the motion for attorney fees. (Robertson I, supra, 144 Cal.App.4th at p. 817.)
Defendant appealed from the above mentioned judgment on a number of grounds, which led to our decision in Robertson I. One of the questions in that appeal was whether it was permissible under the wording of Civil Code section 1794, subdivision (d), for the trial court to apply a fee enhancement or multiplier. In Robertson I, we answered that question in the affirmative because we found the language of Civil Code section 1794, subdivision (d), to be “reasonably compatible” with the lodestar adjustment method of calculating attorney fees, including use of fee multipliers. (Robertson I, supra, 144 Cal.App.4th at p. 818.) Our conclusion was reached in light of the Supreme Court’s ruling in Ketchum v. Moses (2001) 24 Cal.4th 1122, at pages 1135-1136 (Ketchum), that the lodestar adjustment method is the prevailing rule for statutory attorney fee awards and is to be applied in the absence of clear legislative intent to the contrary. (Robertson I, supra, at pp. 818-819.)
Although we concluded in Robertson I that use of a fee multiplier was authorized, we nevertheless remanded the case back to the trial court to recalculate the award of fees for the following reason:
“It appears from our review of the proceedings below that the trial court considered some of the same factors in reaching the lodestar amount as it did in applying a multiplier. The trial court considered three factors in finding the hourly rate reasonable: 1) rates approved in other cases, (2) risk arising from contingency, and 3) risk/expense arising from delay in payment. The court also used factors 2 and 3 to justify the .50 multiplier. This duplication is not permitted because it results in unfair double counting and an unreasonable fee award. As stated in Ketchum v. Moses, ‘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.’ [Citation.]” (Robertson I, supra, 144 Cal.App.4th at p. 822.)
We then made the following disposition: “The case is remanded to the trial court for a redetermination of the attorney fees award without considering the same factors in computing the lodestar and the fee enhancement.” (Id. at p. 823.)
As the record in Robertson I revealed, the trial court’s double counting error was real and not merely an instance of imprecise wording in the order. The order granting attorney fees stated that the $340 per hour rate was “reasonable” for purposes of computing the lodestar amount “given the contingent nature of the litigation and the delay in payment of fees.” (Capitalization omitted.) The trial court substantiated the importance of such factors by referring to the declaration of plaintiffs’ attorney, Mr. Law, including paragraphs 11 and 19-21 thereof, which indicated that his fee rate was reasonable based on factors of contingency, risk and delay. For example, paragraph 11 of Mr. Law’s declaration explicitly stated that contingency and the risk of nonpayment created thereby “alone justifies our fee rates, and plays a role in how the firm sets the hourly rates for [its] attorneys.” Similarly, in paragraph 21 of his declaration, Mr. Law stated that the risks involved in taking cases on a contingency basis “conservatively justify our attorney’s fees … request.” The trial court’s order next addressed the multiplier and found that “[h]ere, the relevant factors are: (1) the contingent risk factor; [citation]; and (2) the risks and delay in payment. [Citation.]” The trial court concluded that a multiplier of .50 was warranted based on these factors and again supported its conclusion by referring in its order to Mr. Law’s declaration. Thus, there can be no doubt that the trial court’s fee award in Robertson I erroneously included factors of contingency, delay and risk in both the lodestar and multiplier.
In the postremand hearing, the trial court noted its earlier ruling was “unartfully done.” Plaintiffs’ brief takes this to mean that the trial court merely appeared to double count, but did not actually do so. We cannot agree with this characterization.
The Postremand Hearing on Attorney Fees
After our issuance of remittitur returned the case to the trial court, plaintiffs filed the following two motions there: (1) a motion on remand for redetermination of attorney fees and (2) a motion for attorney fees on appeal. For purposes of both motions, plaintiffs argued that Mr. Law’s hourly rate of $340 was reasonable. Mr. Law filed a new declaration in support of the fee rate. Mr. Law admitted therein, as he did in his prior declaration filed in connection with the earlier attorney fee motion, that his firm takes cases under the Song-Beverly Act on a contingency basis, with all the risk and delay entailed therewith. However, Mr. Law’s new declaration deleted the prior acknowledgment that such factors played a role in how the firm set its hourly rates and he removed the prior assertion that such factors provided justification for the reasonableness of his firm’s rates. Instead, Mr. Law’s new declaration claimed his fee rate was reasonable based on a comparison of other attorneys’ hourly rates with similar levels of expertise.
At the time of the postremand motion, Mr. Law’s rates had increased to $390 per hour, but he based the motion on the former rate in effect at the time of trial.
In addition, plaintiffs’ postremand fee motions included the declaration of Richard M. Pearl (Mr. Pearl), an expert on attorney fees issues. Mr. Pearl’s declaration offered the opinion that the rate charged by plaintiffs’ counsel was reasonable and well within market rates charged by attorneys of comparable experience, skill, and expertise for similar services. Mr. Pearl provided evidence of both contingent and noncontingent hourly rates charged by other law firms throughout the state.
Plaintiffs’ motion on remand for redetermination of attorney fees requested that the trial court apply a multiplier of 1.2 to the attorney fees reasonably incurred in the underlying trial of the case. Plaintiffs’ separate motion for attorney fees on appeal requested that the trial court apply a multiplier of 1.1 to 2.0 to the attorney fees reasonably incurred in the appeal.
In opposition to the motion on remand for redetermination of attorney fees, defendant argued the trial court should correct its prior attorney fee order by simply eliminating the $72,540 amount that was attributable to the .50 multiplier. That is, since the multiplier was based solely on contingency and risk factors, and since those factors had already been considered in determining the reasonableness of the lodestar, the simplest solution was to subtract $72,540 and then enter a corrected judgment. In making this argument, defendant’s attorney did not object to use of the original rate of $340 per hour as a “reasonable” rate assuming that delay and contingent risk were already factored into that rate. Defendant also argued, in opposition to plaintiffs’ motion, that no further multipliers should be applied.
In opposition to the separate motion for attorney fees on appeal, defendant argued that plaintiffs failed to show a supporting basis for applying a multiplier to the fees incurred in defending the appeal. Defendant argued that further delay should be relatively minimal, and as to contingent risks, an appeal bond was filed to cover any expected judgment.
Both motions were argued in the trial court on May 10, 2007. That same day, the trial court issued its written order addressing and ruling on both motions. Preliminarily, the trial court rejected defendant’s proposal for how to comply with the remand order and decided to follow the approach suggested by plaintiffs’ motions -- i.e., to determine the fee award anew based on the evidence before it. We now summarize the trial court’s findings as set forth in the May 10, 2007 order.
The May 10, 2007 order was entitled “Findings and Orders on Plaintiffs’ Motion for Fees and Costs on the Merits (Trial) and Appeal After Remand.” (Full capitalization omitted.)
As to the trial portion of the case -- i.e., the commencement of the case through and including the trial -- the trial court considered the declarations of Mr. Law and Mr. Pearl and concluded Mr. Law’s hourly rate of $340 was reasonable, and that in fact it was below average for attorneys with similar skills and experience for hourly noncontingent work and well below the rates reasonably charged for contingency work. Multiplying the rate of $340 per hour times the reasonable number of hours spent on the case, the trial court decided that the lodestar amount was $152,460. Additional fees of $18,530 were incurred in connection with fee motions.
The trial court also referred to this part of the case as the “merits” portion of the case.
The lodestar amount in the prior motion for fees was $145,080.
The trial court then addressed the issue of a fee multiplier concerning the fees incurred in the trial portion of the case. It found that a multiplier was warranted by several factors and itemized the multiplier according to the factors being considered. It held that (1) extraordinary success, novelty and complexity warranted a multiplier of .30; (2) contingency and risk factors warranted a multiplier of .35; and (3) delay in payment justified a multiplier of .70, for a total multiplier of 1.35 on the trial portion of the case. This multiplier of 1.35 was applied to the lodestar figure of $152,460, resulting in a subtotal of $358,281.71. When fees incurred on fee motions were added in (i.e., $18,530), the total attorney fees awarded for the trial portion of the case came to $376,812.
As to the attorney fees incurred in the appeal, the trial court used the $340 per hour rate and determined the lodestar to be $72,454. The trial court agreed with plaintiffs’ arguments that a multiplier should be used regarding the appeal portion of the case and itemized the multiplier based on factors, as follows: novelty and complexity of the issues on appeal and the result achieved (.30), contingent risk (.35) and delay in payment (.30), for a total multiplier of .95 for the appeal portion of the case. When the multiplier of .95 was applied to the lodestar of $72,454, this resulted in a subtotal of $141,285. After including $5,440 in additional fees for bringing the motion to recover fees on appeal, the trial court awarded a total of $146,725 in attorney fees attributable to the appeal.
Defendant’s Present Appeal
In the instant appeal, defendant contends the trial court’s postremand fee awards constituted an abuse of discretion on the following grounds: (1) The trial court must have failed to follow our remand instruction to remove double counting of factors because neither component of the attorney fee equation was reduced and the award was actually increased; (2) the lodestar amount was improper if viewed as a “contingent” rate, since contingency, risk and delay were used to determine the multiplier; (3) the lodestar amount was objectively unreasonable as a “noncontingent” rate, since Song-Beverly Act cases are only undertaken on a contingency basis and the evidence failed to establish the reasonableness of the purported noncontingent rate; and (4) the multipliers were otherwise duplicative and improper. We now address these contentions.
DISCUSSION
I. Standard of Review
A trial court’s exercise of discretion concerning an award of attorney fees will not be reversed unless there is a manifest abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “Where, as here, a trial court has discretionary power to decide an issue, its decision will be reversed only if there has been a prejudicial abuse of discretion. ‘“To be entitled to relief on appeal … it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice.…”’ [Citation.]” (Baggett v. Gates (1982) 32 Cal.3d 128, 142-143.) The experienced trial judge is the best judge of the value of professional services rendered in his or her court, and his or her judgment will not be disturbed unless the appellate court is convinced that it is clearly wrong. (Ketchum, supra, 24 Cal.4th at p. 1132; and Serrano v. Priest (1977) 20 Cal.3d 25, 49 (Serrano III).) Thus, our review must be highly deferential to the views of the trial court. (Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 777, 782.) “In this connection we employ the equivalent of the substantial evidence test by accepting the trial court’s resolution of credibility and conflicting substantial evidence, and its choice of possible reasonable inferences.” (In re Executive Life Ins. Co. (1995) 32 Cal.App.4th 344, 358.)
At the same time, the trial court’s discretion must not be exercised whimsically or arbitrarily, and reversal is appropriate where there is no reasonable basis for the ruling or the trial court has applied the wrong test or legal standard in reaching its result. (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 634; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239.)
II. Overview of Lodestar Adjustment Method
Before proceeding to the specific arguments in the present appeal, we briefly review the lodestar adjustment method, which is the basic process we asked the trial court to follow on remand.
In determining a reasonable attorney fee award under fee-shifting statutes, a trial court begins by deciding “the reasonable hours spent” on the case and multiplying that number by “the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type.” (Ketchum, supra, 24 Cal.4th at p. 1133.) The result is called the “lodestar” figure. (Ketchum, supra, at p. 1133.) Use of “prevailing hourly rates” as a basis for the lodestar is a necessary means of ensuring a measure of objectivity to the process of setting attorney fees. (Id. at p. 1132.) “[T]he unadorned lodestar reflects the general local hourly rate for a fee-bearing case; it does not include any compensation for contingent risk, extraordinary skill, or any other factors a trial court may consider under Serrano III.” (Id. at p. 1138.)
The trial court has discretion to adjust the lodestar figure in light of a number of relevant factors that weigh in favor of augmentation or diminution. (Ketchum, supra, 24 Cal.4th at p. 1132; Serrano III, supra, 20 Cal.3d at p. 49; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171.) “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors, including … (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ketchum, supra, at p. 1132.)
In determining whether to include a fee enhancement, the trial court should consider “the degree to which the relevant market compensates for contingency risk, extraordinary skill, or other factors under Serrano III.” (Ketchum, supra, 24 Cal.4th at p. 1138.) Moreover, “when determining the appropriate enhancement, a trial court should not consider these factors to the extent they are already encompassed within the lodestar.” (Ibid.) To do so would “result in unfair double counting and be unreasonable.” (Id. at p. 1139.) Nor should a fee enhancement be imposed for the purpose of punishing the losing party. (Ibid.)
III. Trial Court’s Decision to Completely Redetermine Fees Did Not Violate Our Remand Order
Looking at the increased multiplier and higher fee award, defendant argues the trial court must have failed to follow our remand order. We disagree. In that order, we directed the trial court to recalculate the attorney fee award “without considering the same factors in computing the lodestar and the fee enhancement.” (Robertson I, supra, 144 Cal.App.4th at p. 823.) Thus, we vacated the prior fee award and sent the matter back for a redetermination thereof under a proper application of the lodestar adjustment method (i.e., no double counting of factors). We left to the trial court’s sound discretion the question of how to best accomplish that result. The approach taken by the trial court was to reopen the attorney fee award and to decide the matter anew based on a consideration of the evidence and argument presented by the parties in connection with the postremand fee motions. This approach was plainly within the trial court’s discretion and did not violate our remand order.
Accordingly, we reject defendant’s argument that merely because the trial court did not reduce either the prior lodestar or the prior multiplier, it necessarily violated our remand order. Defendant’s analysis fails to consider the fact that the trial court undertook a comprehensive redetermination of the attorney fee issues from “scratch” and was not bound by its prior findings.
IV. No Abuse of Discretion Regarding Lodestar Determination
Defendant makes a number of challenges to the trial court’s lodestar determination. Defendant first contends the express acknowledgement by plaintiffs’ counsel (Mr. Law) in the original attorney fee motion that his $340 hourly rate was based on considerations of contingency and risk cannot be ignored. We agree with this proposition, as far as it goes, but conclude that defendant has failed to establish an abuse of discretion.
We begin by briefly reviewing what Mr. Law said. In a nutshell, Mr. Law’s declaration filed in the original motion for attorney fees (in Robertson I)discussed the rates set by his firm, and he admitted therein that contingency and the risk of nonpayment “alone justifies our fee rates, and plays a role in how the firm sets the hourly rates for [its] attorneys.” (Italics added.) He further stated that factors of contingency and risk “conservatively justify our attorney’s fees … request.” Defendant argues that this evidence shows the $340 per hour rate was and is a contingent rate and therefore the trial court improperly used contingency, risk and delay as factors in awarding a fee multiplier in the postremand fee motions.
Plaintiffs respond that the “internal factors” used by Mr. Law’s firm in setting its rates were “virtually irrelevant” because the lodestar amount is supposed to be measured objectively by proof of the reasonable prevailing rates for comparable legal services in the marketplace. That is, an attorney’s (or law firm’s) internal or subjective considerations in setting hourly rates are irrelevant, according to plaintiffs, as long as the selected rate is reasonable as a noncontingent rate for comparable legal services.
Plaintiffs are correct in their proposition that the lodestar is founded on prevailing noncontingent rates in the community for comparable legal services. The rate to be applied in determining the lodestar has been variously described by our Supreme Court as “the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type” (Ketchum, supra, 24 Cal.4th at p. 1133), the “‘“hourly amount to which attorneys of like skill in the area would typically be entitled”’” (Ibid., quoting Serrano v. Unruh (1982) 32 Cal.3d 621, 640, fn. 31), or simply as “prevailing hourly rates” (Ketchum, supra, at p. 1132). It has also been defined as “the general local rate” for a comparable noncontingent case (id. at p. 1138), or “[t]he reasonable hourly rate is that prevailing in the community for similar work” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095). Since these definitions consistently and uniformly put the focus of the lodestar inquiry on the objectively prevailing noncontingent rates in a particular area or marketplace, the merely internal considerations of plaintiffs’ law firm in setting its particular rate would not, by itself, be determinative.
Nonetheless, such information would be a relevant factor in the trial court’s lodestar decision. Ketchum required that a trial court “consider the degree to which the relevant market compensates for contingency risk, extraordinary skill, or other factors under Serrano III[,]” and warned that these factors should not be considered in deciding on whether to grant a multiplier “to the extent they are already encompassed within the lodestar.” (Ketchum, supra, 24 Cal.4th at p. 1138.) In determining whether a relevant market compensates for contingency or risk and thereby encompasses such factors within the prevailing rates, evidence of an express statement from the attorney involved in the case would obviously be a significant factor. Indeed, such evidence may lead a trial court to conclude that the relevant market has already incorporated factors such as contingency and risk into the fee rate, since a reasonable inference may be drawn that a law firm’s use of internal factors is a reflection of market practices and conditions. For these reasons, we disagree with plaintiffs’ position that Mr. Law’s prior admission was irrelevant.
In our view, the correct approach is for the trial court to consider all of the relevant evidence bearing on the issue of the lodestar rate, including (as relevant in this case) the following: (1) Mr. Law’s prior statement that contingency and risk played a part in setting fees, (2) evidence presented of prevailing rates charged for comparable services, and (3) the trial judge’s own knowledge of reasonable attorney fees in the community. (See PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096 [trial court has its own expertise in determining the value of legal services and may make its own determination without the necessity of expert testimony].) Here, it has not been shown that the trial court failed to consider any relevant evidence. Moreover, it is clear the trial court was persuaded by, among other things, its consideration of Mr. Law’s years of practice, skill and experience, as well as the evidence of comparable noncontingent fee rates as set forth in the supporting declarations. Since there was substantial evidence to support the finding adopted by the trial court, we conclude it did not abuse its discretion when it determined that the $340 per hour rate was reasonable as a lodestar rate in this case.
Defendant argues that if the $340 per hour is viewed as a noncontingent rate, as the trial court clearly did in this case, the amount is “[o]bjectively [u]nreasonable” because it was not based on comparable legal services in the local community. (See Nichols v. City of Taft, supra, 155 Cal.App.4th at pp. 1242-1243.) We hold that defendant failed to preserve this issue on appeal for two reasons. First, defendant failed to object or argue in the trial court that the $340 rate was not a local rate. (Children’s Hospital & Medical Center v. Bonta, supra, 97 Cal.App.4th at pp. 776-777 [“‘An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below’”].) Second, plaintiffs’ evidence included the fee rate of at least one Song-Beverly Act attorney in the local area -- namely, William Krieg -- and defendant failed to offer any rebuttal evidence regarding reasonable local rates. (See Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 156 [unrebutted declarations establishing prevailing rates compelled finding that requested hourly rates were reasonable].)
Defendant next contends the evidence in support of plaintiffs’ postremand attorney fee motions failed to establish any basis for a noncontingent hourly rate as a matter of law because (1) Song-Beverly Act consumer law firms only take such cases on a contingency basis, and (2) no competent evidence of comparable noncontingent rates was submitted. This contention fails because, as with the prior issue, defendant did not raise any such argument or objection in the trial court on this ground.
In any event, defendant’s argument is without merit because there was substantial evidence to support the trial court’s lodestar determination. The declaration of Mr. Law set forth his extensive legal experience and expertise in consumer warranty law, indicated his current hourly rate of $390 per hour, although he was charging only $340 per hour for the work performed in this case, and then set forth a comparison of his rates to a number of other attorneys with similar levels of experience and expertise. The declaration of Mr. Pearl presented a survey of both contingent rates awarded and noncontingent rates charged by other attorneys with similar levels of litigation experience as plaintiffs’ counsel. We conclude the evidence presented in connection with the fee motions, together with the trial court’s presumed knowledge of local fee rates, was sufficient to permit the trial court to make a reasoned determination of the lodestar figure in this case, particularly when it is remembered that the “‘experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his [or her] 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 III, supra, 20 Cal.3d at p. 49.)
Moreover, even if there are no attorneys who take Song-Beverly Act cases on a noncontingent hourly basis, the trial judge had adequate information before it from which to make a reasonable assessment of the market value of Mr. Law’s services. And although defendant now challenges the adequacy of the supporting declarations as being allegedly deficient in certain respects or overly general, the failure to object in the trial court or to present argument or evidence on the issue of reasonable rates resulted in a forfeiture of all such grounds. “It is unfair to the trial judge and to the adverse party to take advantage of an alleged error on appeal where it could easily have been corrected at trial. [Citations.]” (Children’s Hospital & Medical Center v. Bonta, supra, 97 Cal.App.4th at p. 776.)
Defendant’s opening brief admits it failed to raise the issue of reasonable noncontingent rates in the proceedings below.
V. No Abuse of Discretion Regarding Multiplier Determinations
Defendant generally argues that “[f]actually, nothing material changed” between the original attorney fee motion in Robertson I and the postremand attorney fee motions, and therefore it was per se unreasonable to increase the multipliers. Plaintiffs’ response to this argument is, we believe, on target: “Numerous factors relevant to the determination of the multipliers, that is, contingent risk, delay and extraordinary results, had changed. [Plaintiffs] had prevailed in an appeal addressing virtually every legal issue in the case. This Court had issued a comprehensive 40 page Opinion making significant law under the Song-Beverly Act in California. The delay factor had doubled. Attorney hourly rates in California and at [plaintiffs’ attorney’s law firm] had risen. Substantial additional time had been expended on the appeal of this case. To a purely contingent law firm advancing all costs in all its cases, these factors were important to the determination of the multipliers.” Obviously, the trial court agreed with plaintiffs’ assessment that further multipliers were warranted under the circumstances, as evidenced by its order and findings.
We now turn to defendant’s particular claims of error concerning the multipliers awarded by the trial court. Defendant contends that double counting occurred with respect to many of the factors recited by the trial court in support of its award of multipliers. For the reasons explained hereafter, we reject defendant’s contentions and find that no abuse of discretion has been shown concerning the trial court’s award of multipliers in this case.
A. Multiplier Regarding Trial or Merits Portion of Case
We begin with the multipliers that were applied by the trial court to enhance the attorney fees incurred in the trial or merits portion of the case. This is the fee award that was redetermined by the trial court following our remand order.
1. Contingency, Risk and Delay
The trial court awarded a multiplier of .35 based on contingent risk and a multiplier of .70 based on delay. Defendant first argues that the lodestar was based on factors of contingency, risk and delay and therefore the trial court’s use of these same factors in the multiplier was an abuse of discretion. However, as we have explained in our discussion above, the trial court determined that the $340 fee rate was reasonable as an hourly noncontingent rate for such legal services, and that finding was supported by substantial evidence. In reaching its conclusion, the trial court was careful not to use contingency, risk or delay as support for the lodestar amount, and those factors were only considered in connection with the multiplier. In short, defendant has failed to demonstrate that the trial court double counted the factors of contingency, risk and delay in making the postremand attorney fee award.
Defendant next argues that even if there was no double counting with respect to these factors, a multiplier was unwarranted for the delay factor because the award is presumably earning statutory interest at the rate of 10 percent per annum. (See Code Civ. Proc., § 685.010, subd. (a).) This line of argument fails to establish an abuse of discretion in the present case. Although a multiplier based on delay is in many respects tantamount to an interest rate (see Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 584), other considerations are often involved beyond the mere time differential of awaiting payment of accrued fees. For example, a delay multiplier may be appropriate in light of such considerations as inflation, unusually long delay, preclusion of other work, advancement by the law firm of its own funds to cover litigation costs, and to account for the fact that the lodestar was based on rates in effect at the time services were rendered but the attorney’s hourly rates have increased over time. (See Graham v. DaimlerChrysler Corp., supra, at pp. 583-584; Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 399-400; Sternwest Corp. v. Ash (1986) 183 Cal.App.3d 74, 76-77.)
Here, in granting the multiplier based on delay, the trial court noted that plaintiffs’ counsel had (at the time of the trial court’s order) expended over 800 hours of attorney time on the case during the past three and one-half years and had not, in that lengthy time period, been paid for any of their services or reimbursed for any expenses related to the case. Additionally, the trial court was aware that Mr. Law’s present hourly rate had increased to $390, yet the lodestar was calculated at the lower rate of $340 per hour. In view of these facts and circumstances, defendant has not met its burden of demonstrating that the trial court abused its discretion in awarding a multiplier based on the factor of delay.
2. Novelty, Complexity and Result Achieved
The trial court expressly found that numerous complex and novel issues of law were involved in this litigation, both at trial and on appeal, which justified a multiplier. The complex and novel issues included (1) a consumer’s duty to physically “‘deliver’” a product for repair to a manufacturer or authorized repair facility; (2) recovery of interest or finance charges by a consumer; (3) the impact of a consumer’s refusal to allow a final repair attempt, and (4) whether the lodestar adjustment method applies in cases under the Song-Beverly Act. As a separate factor in favor of a multiplier, the trial court noted the extraordinary results achieved, in that plaintiffs prevailed on each of these difficult and complex issues, thereby creating significant new law.
Defendant contends it was error for the trial court to use these factors to justify a multiplier in both the motion for attorney fees relating to the trial portion of the case and the separate motion for attorney fees relating to the appeal portion of the case. We find no error. The two motions simply represented distinct phases of the entire litigation. It was reasonable and appropriate for the trial court to consider in both motions any factors that were applicable to the entirety of the case, including complexity, novelty and extraordinary success. Thus, defendant has failed to show an abuse of discretion in regard to the multiplier that was awarded based on extraordinary success, novelty and complexity.
3. Attorney Skill
Although the trial court’s order did not award a specific multiplier based on the factor of attorney skill, this factor was mentioned by the trial court in connection with its discussion of the multiplier it awarded for complexity, novelty and extraordinary success. Defendant claims the trial court double counted the factor of attorney skill. We disagree.
Attorney skill, reputation and experience are generic factors to be considered in determining a reasonable market hourly rate for purposes of the initial lodestar. (Ketchum, supra, 24 Cal.4th at p. 1139.) Where extraordinary skill is demonstrated by the attorney, it is an appropriate factor in awarding a multiplier but caution is warranted because of the risk of double counting. (Id. at pp. 1138-1139.) “Thus, a trial court should award a multiplier for exceptional representation only 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.” (Id. at p. 1139.)
The trial court appears to have correctly followed the above analysis called for by Ketchum. Attorney skill was initially factored into the lodestar, while the extraordinary measure of success and results achieved by plaintiffs’ counsel, which the trial court attributed in large part to counsel’s exceptional quality of skill and tenacious resolve, were factored into the issue of whether to grant a multiplier. We discern no double counting and find no abuse of discretion in regard to the trial court’s consideration of this factor in connection with awarding a multiplier.
B. Multiplier Regarding Appeal Portion of the Case
In attacking the trial court’s award of a multiplier concerning the fees incurred in the appeal portion of the case, defendant simply reiterates the same arguments as were made above. For the same reasons discussed above, we reject those arguments. Additionally, defendant contends the trial court improperly sought to compensate plaintiffs’ attorneys for their purportedly low market rates. We disagree. Although Plaintiffs’ reply in the motion for fees does make reference to the firm’s lower than market rates, such information was obviously provided for the purpose of showing that the lodestar did not already encompass factors of contingency, risk and delay. We reject defendant’s speculation that the trial court failed to comprehend the context in which the reply referred to this information. Moreover, there is nothing in the record to indicate the trial court applied the wrong legal standard when it considered whether to award a multiplier to enhance the fees incurred on appeal.
DISPOSITION
The trial court’s order awarding attorney fees is affirmed. Plaintiffs are awarded costs on appeal.
WE CONCUR: Cornell, Acting P.J., Dawson, J.