Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. GIC856239, Joan M. Lewis, Judge.
NARES, Acting P. J.
Menachem and Peggy Shoval (together the Shovals) brought a motion for attorney fees and costs against the City of Poway (City) under the private attorney general statute (Code Civ. Proc., § 1021.5) after successfully challenging the City's resolution to install a vehicle access gate across Mina de Oro Road. The court denied the Shovals' motion, finding that: (1) the Shovals did not provide sufficient evidence to support their fee claim; and (2) the Shovals did not satisfy the requirements of section 1021.5 because they were primarily motivated by their own interests, rather than the public's, in pursuing the action.
All statutory references are to the Code of Civil Procedure.
The Shovals also sought fees under section 1095. They do not raise section 1095 on appeal, and we will not address it.
The Shovals contend that the court erred by not applying the requisite legal standard under 1021.5, subdivision (b) (section 1021.5(b)). They assert that the court should have determined whether the costs they incurred in challenging the City's resolution transcended their personal stake in the matter, not whether they were primarily motivated by their own interests in challenging the City.
We need not reach whether the court failed to apply the requisite legal standard under section 1021.5(b). The court properly found that the Shovals failed to provide sufficient evidence to support their fee claim, and the Shovals do not challenge this primary finding on appeal. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading Up to the Shovals' Motion for Attorney Fees
Mina de Oro Road is located in rural Poway, California. The road has existed since the 1880s and has traditionally been used by the public for travel between Poway Road and State Highway 67. Parcel maps dating back to 1976 reveal that the road had been dedicated to the public, but the City had taken no action to either accept or vacate the offer to dedicate.
In 1999 the Shovals purchased two parcels of land in Poway. The 125 acres purchased by the Shovals are most accessible by the southerly segment of Mina de Oro Road, and anyone seeking to develop the Shovals' land would need that road segment for access to the homes or other structures built on it. Adjacent to the Shovals' parcels is a small group of homeowners, including Dennis and Karen Keena (together the Keenas), who live on Eucalyptus Heights Road. The Eucalyptus Heights homeowners also use the southerly segment of Mina de Oro for ingress and egress to their property.
In October 2004 the City entertained a request by the Eucalyptus Heights homeowners to install a vehicle access gate across the southerly segment of Mina de Oro. On March 22, 2005, the City Council adopted a resolution approving the construction of the gate, thereby cutting the road off to the public and the Shovals. Thereafter, the Keenas sued the Shovals to quiet title to a portion of Mina de Oro. The Shovals filed cross-complaints against the Keenas and the City, seeking a determination that the road was public.
Subsequently, the Shovals successfully brought a petition for writ of mandate challenging the City's adoption of the resolution. The court found that there had been a common law dedication and, therefore, Mina de Oro was a public road. The court also found there was an implied acceptance of the dedication in that the public used the road. Accordingly, the court found that the City's adoption of the resolution was "arbitrary, capricious, or entirely lacking in evidentiary support." Upon granting the Shovals' writ petition, the court invited them to separately bring a motion for attorney fees.
B. Shovals' Motion for Attorney Fees
The Shovals brought a motion against the City under section 1021.5, requesting $239,967 in attorney fees and costs incurred during the entire lawsuit against the Keenas and the City, plus an anticipated $5,000 in fees and costs in bringing the motion. The Shovals argued that their action enforced an important right affecting the public interest: the right of public access to Mina de Oro Road. The Shovals further argued that their action conferred a significant benefit on the general public in that the court declared Mina de Oro for public use.
The Shovals did not move for attorney fees and costs against the Keenas.
Additionally, the Shovals argued that "'the necessity and financial burden of private enforcement . . . [made] the award . . . appropriate.'" (§ 1021.5(b)) They claimed that they were forced to defend against the Keenas' quiet title action and pursue a declaration against the City that Mina de Oro was public. They further claimed that they were motivated by the public's interest in challenging the City's adoption of the resolution, as they intended to develop soccer and athletic fields on their property for free use by the community.
In support of their fee claim, the Shovals attached a declaration from Richard Barton of Higgs, Fletcher & Mack, and a declaration from Menachem Shoval. In his declaration, Barton stated that "the Shovals incurred $44,532.77 in attorney fees in their efforts to address the City's wrongs prior to litigation." Barton also declared that the Shovals incurred fees and costs in the amount of $195,434.25 from his firm's representation, not including the anticipated $5,000 in bringing the motion and responding to the City's opposition. Barton declared that his and his partners' hourly rates in representing the Shovals were reduced to $250 per hour, and that "the real estate issues in this case required research of documents and records setting forth the history of Mina de Oro [R]oad as far back as the late 1800[s], as well as complex legal issues arising from the numerous changes in the status of Mina de Oro Road."
Menachem Shoval verified in his declaration that he spent $44,532.77 in attorney fees, consultant fees, and related costs prior to retaining Higgs, Fletcher & Mack. Mr. Shoval asserted that he retained Anderson, Mann and Hilbert to "assist [him] with opposing [the City's] wrongful actions[,]" and thereafter hired two additional attorneys to represent him, though he does not specify what they did for him, their hourly rates, or the number of hours they worked for him. Mr. Shoval further declared that he incurred costs in having a survey performed, obtaining copies of maps and other recorded documents, and obtaining a transcript from a restraining order hearing against Dennis Keena. (CT 68-69)!
The Shovals attached to their motion a summary of fees and costs from Higgs, Fletcher & Mack. This summary was a spreadsheet listing seven statement periods, beginning April 21, 2006 and ending January 4, 2007, and the fees and costs for each. The amounts were totaled at the bottom to reach $195,434.25. No other supporting documentation was provided detailing the services performed or the time spent on specific matters.
In opposition to the Shovals' motion, the City contended that the Shovals did not satisfy section 1021.5(b) because their individual interest in the litigation outweighed their motivation to enforce a public benefit. According to the City, this was apparent in that the Shovals did not bring their action until one year after the City's adoption of the resolution and then only as a cross-complaint in response to the Keenas' lawsuit. The City claimed that, had the Shovals been motivated by a purely altruistic purpose, they would have challenged the resolution immediately upon learning that the City had adopted it.
The City further argued that the Shovals failed to demonstrate that their litigation costs transcended their personal interest in the litigation. The City noted that the Shovals had purchased their undeveloped parcels for over $600,000 in cash and that they "intended to develop the property, not simply access [it] for public use." (Italics omitted.) Thus, according to the City, the Shovals' financial incentive outweighed any altruistic motivation to challenge the City's adoption of the gate resolution.
Moreover, the City argued that the Shovals' motion was not sufficiently supported for the court to make any determination as to the proper amount of attorney fees. The City claimed that the Shovals' fee request was patently unreasonable and excessive, and unsupported by a verified cost bill with billing entries for the City's and the court's review. The City argued that without billing records, the City and the court could not analyze the reasonableness and necessity of the claimed fees. The City also asserted that the Shovals did not substantiate their first two attorneys' work, and neither of these attorneys appeared on behalf of the Shovals in this case.
In support of its opposition, the City attached the declaration of John W. Witt, former San Diego City Attorney of 27 years. Witt declared that "[i]t has been [his] experience that any request for attorney's fees such as [the Shovals'] should be supported by the attorney's billing records" and that, without them, "it is impossible to determine the reasonableness and necessity of the attorney's fees claimed to have been incurred on behalf of [the Shovals]." Witt further stated that the Shovals' showing of fees was "insufficient to enable [him], the City or the [c]ourt to render an[] informed opinion as to the fees which were reasonably and necessarily incurred."
At the hearing on the motion, the Shovals reiterated that the legal standard under section 1021.5 requires inquiry into whether the Shovals' costs in bringing their action transcended their individual stake, not whether they were primarily motivated by the public's interest in opposing the City's adoption of the gate resolution. They also contended that they had adequately supported their fee request through their declarations, as permitted by law. However, they stated that they would be willing to provide the court with supplemental briefing, redacted bills, and a memorandum of costs.
The court denied the Shovals' motion. The court found that the Shovals "failed to submit sufficient evidence with their motion to support their claim for fees," and stated that it "[did] not believe that simply stating counsel's hourly rate and the total fees billed [was] sufficient." The court also found that the Shovals did not adequately substantiate their request for costs, which should have been made by way of a memorandum of costs. With respect to section 1021.5(b), the court found that "the Shovals were primarily motivated by their own interests in pursuing this action and therefore cannot satisfy the elements required to recover fees under [section] 1021.5." Having determined that section 1021.5(b) was not satisfied, the court did not state whether the Shovals' action enforced an important right affecting the public interest, or whether it conferred a significant benefit on the general public or a large class of persons under section 1021.5, subdivision (a) (section 1021.5(a)).
DISCUSSION
The Shovals contend that the court did not apply the requisite legal standard under section 1021.5 because it did not determine whether the costs of litigation and the burdens placed on them transcended their personal stake in the matter. Thus, the Shovals request that we remand the case for a determination of whether they are entitled to attorney fees and costs after applying the requisite standard under section 1021.5(b).
"'Entitlement to fees under section 1021.5 requires a showing that the litigation: "(1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) [was necessary and] imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter." [Citation.]' [Citation.]" (Families Unafraid to Uphold Rural El Dorado County v. El Dorado County Board of Supervisors (2000) 79 Cal.App.4th 505, 511 (Families Unafraid).) "Whether to award fees under [section 1021.5] is a matter within the trial court's discretion and will not be disturbed on appeal absent a showing of abuse of that discretion. But discretion may not be exercised whimsically, and reversal is required where there is no reasonable basis for the ruling or when the trial court has applied the wrong test to determine if the statutory requirements were satisfied. [Citations.]" (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 634.)
We need not determine whether the court failed to apply the requisite legal standard under section 1021.5, or whether a party must be motivated by the public's interest in order to satisfy the "necessity requirement" under section 1021.5(b). Rather, we conclude that the court properly found that the Shovals did not adequately support their fee claim—under any applicable legal standard—and we affirm on that basis. The Shovals do not challenge this finding on appeal and thus waive their right to do so.
"The fee motion usually involves two primary issues: (1) whether the party or attorney is entitled to a fee and, if so, (2) the proper amount of the fee." (Pearl, Cal. Attorney Fee Awards (2d ed. 2007) § 14.19, p. 424.) "The attorney claiming fees has the burden of producing evidence to support the fee claim." (Id. § 14.29, p. 435; see Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 624.) "To enable a trial court to determine whether attorney fees should be awarded and in what amount, an attorney should present '(1) evidence, documentary and oral, of the services actually performed; and (2) expert opinion, by [the applicant] and other lawyers, as to what would be a reasonable fee for such services.' [Citations.]" (Martino v. Denevi (1986) 182 Cal.App.3d 553, 558-559, italics added.) Although detailed time records and billing statements are not an absolute requirement for an award of fees (see Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 (Weber)), "in the absence of such crucial information as the number of hours worked, billing rates, types of issues dealt with and appearances made on the client's behalf, the trial court is placed in the position of simply guessing at the actual value of the attorney's services. That practice is unacceptable and cannot be the basis for an award of fees." (Martino, supra, 182 Cal.App.3d at p. 559; see also Weber, supra, 39 Cal.App.4th at p. 1587 ["[A] fee request ordinarily should be documented in great detail . . . ."]; Martino, supra, 182 Cal.App.3d at pp. 559-560 [concluding that there was insufficient evidence to support an award of fees where no "attempt [was] made to explain, in more than general terms, the extent of services rendered to the client"].)
Here, the court found "[a]s a preliminary matter . . . that the Shovals . . . failed to submit sufficient evidence with their motion to support their claim for fees." The only evidence provided by the Shovals was the declarations of attorney Barton and Menachem Shoval. These declarations did not detail the time spent on specific matters, but only broadly stated that "the real estate issues in this case required research of documents and records setting forth the history of Mina de Oro . . . as well as complex legal issues arising from the numerous changes in the status of [the road]." There was no expert opinion attesting to the reasonableness of the fees occurred. The Shovals submitted no verified cost bill with billing entries. The summary spreadsheet attached to the Shovals' motion was nothing more than a blanket assertion that the Shovals incurred $195,434.25 in fees over the course of seven billing periods, and provided no substantiation as to how that amount was reached. Therefore, the court did not abuse its discretion in denying the Shovals' motion on the dispositive finding that the Shovals failed to provide sufficient evidence to support their fee request.
Moreover, in their opening brief, the Shovals do not challenge or even address this dispositive finding. Although the City in its respondent's brief put the Shovals on notice of this glaring omission, the Shovals filed no reply brief to address the issue. We will not develop the Shovals' argument for them, and therefore deem the issue waived. (See Dills v. Redwood Assocs. Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 ["[T]hey present[] no argument or authority. We will not develop the appellants' arguments for them, and therefore decline to reach the issues"].)
The court also found that, had the Shovals been entitled to any award, it would only have been for fees and costs incurred in bringing the writ petition, not for the entire lawsuit. The Shovals do not challenge this finding and therefore waive this argument as well.
DISPOSITION
The order is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: McDONALD, J., IRION, J.