Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. MSC0302841
Ruvolo, P.J.
I. Background
This court previously decided the underlying appeal in this case. (Tanzel v. City of Richmond (Jan. 24, 2007, A112029) [nonpub. opn.] (Tanzel I).) In this second appeal, Yasmeen Tanzel appeals from an order awarding her counsel $43,410.20 in attorney fees for both trial and appellate work in Tanzel I under the private attorney general doctrine (Code Civ. Proc., § 1021.5.) Tanzel claims that the trial court abused its discretion in computing this award because her counsel “is entitled to fees for all or substantially all of the time spent in the trial court and on appeal” which, under the established lodestar method of computing fees in complex public interest litigation, Tanzel estimates to be at least $272,581.10.
All statutory references are to the Code of Civil Procedure.
We disagree and affirm the judgment. In computing the attorney fees award, the trial court here analyzed the appropriate factors and reached a decision that was reasonable under the facts. Consequently, we find the trial court did not abuse its discretion when it awarded Tanzel’s counsel $43,410.20 in attorney fees.
II. Factual and Procedural History
In Tanzel I, this court analyzed a facial constitutional attack and a preemption challenge by Tanzel, a taxpayer, to Richmond Municipal Code Chapter 11.94 (the Ordinance). The Ordinance authorized the City of Richmond (the City) to seize and forfeit vehicles used to solicit prostitution or to buy drugs. Our 22-page opinion in Tanzel I addressed numerous issues, but, as we readily acknowledged we were “not writing on a tabula rasa, as all of the important legal issues presented [had] been decided by other courts considering similar challenges to nearly identical ordinances enacted by other municipalities.”
We addressed an issue which was raised for the first time on appeal––whether the Ordinance was preempted by state statutes found in the Health and Safety Code and the Vehicle Code governing forfeiture of vehicles used in the commission of illegal activities. We rejected Tanzel’s claim that the Ordinance was preempted by state law.
We also reviewed Tanzel’s additional claims, including that: (1) the Ordinance violated procedural due process by failing to afford a prompt post-seizure adversarial hearing after a vehicle is seized; (2) the Ordinance violated substantive due process by vesting a direct pecuniary interest in the outcome of the forfeiture proceedings in the police department and the city attorney; and (3) the city attorney’s objectivity in carrying out his or her duties under the Ordinance was impermissibly tainted by an improper financial motive.
This court “reject[ed] most of the constitutional challenges the trial court found meritorious,” with a single exception. We agreed with the trial court’s conclusion that the Ordinance did not provide adequate procedural due process guarantees because it did not contain a provision for a reasonably prompt post-seizure probable cause hearing on the City’s right to detain the vehicle. In all other respects we found the Ordinance passed constitutional scrutiny. We also found that the “chronology of events” supported the trial court’s conclusion that Tanzel’s lawsuit was a catalyst motivating the City to amend the Ordinance to provide the right to a jury trial, entitling Tanzel’s counsel to an award of attorney fees for success on this issue. Consequently, this court affirmed in part and reversed in part, and remanded for an assessment of reasonable attorney fees and costs “in light of our decision on the merits of the litigation.” Neither party sought rehearing in this court or review of Tanzel I in the Supreme Court.
Shortly after this court rendered its decision in Tanzel I, the Supreme Court decided O’Connell v. City of Stockton (2007) 41 Cal.4th 1061 (O’Connell). By a four-to-three vote, the Supreme Court found local ordinances permitting the forfeiture of vehicles used to solicit prostitution or buy drugs, such as the Ordinance analyzed in Tanzel I, were preempted by state law. It is fair to say that the holding in O’Connell robbed Tanzel I of any practical effect insofar as O’Connell abrogated the Ordinance in its entirety on preemption grounds.
On April 30, 2007, Tanzel’s counsel filed a motion pursuant to section 1021.5, the private attorney general statute, for an award of attorney fees for its work at trial and on appeal in the underlying case. “An award of attorney fees under section 1021.5 requires the applicant to meet three criteria: (1) the action resulted in the enforcement of an important right affecting the public interest; (2) a significant pecuniary or nonpecuniary benefit was conferred on a large class of persons; and (3) the necessity of private enforcement and the attendant financial burden thereof make the award appropriate.” (Ciani v. San Diego Trust & Savings Bank (1994) 25 Cal.App.4th 563, 571 (Ciani).)
Tanzel’s counsel contended the criteria for section 1021.5 were well met––Tanzel was the successful party in the litigation, her action had enforced an important right affecting the public interest, she had conferred a significant benefit on a large class of persons, and the necessity and financial burden of private enforcement were such as to make the award appropriate.
Tanzel claimed a “reasonable, fair and just” computation would be to grant her counsel a “base award of $181,720.73 with a multiplier of at least 1.5, resulting in a minimum adjusted award of $272,581.10 . . . .” She justified this attorney fee request, citing “the overall victory achieved by plaintiff, the importance of the procedural due process and jury trial rights directly vindicated, the novelty and complexity of the issues presented, the significant contingent risk involved, the 4 year delay in payment, [and] the extremely limited number of hours devoted exclusively to the unsuccessful preemption and substantive due process claims . . . .” (Italics omitted.)
As will be described in greater detail in a later section of this opinion, when a party is entitled to attorney fees under private attorney general statute, the trial court must first determine “touchstone” or “lodestar” figure based on careful compilation of time spent and reasonable hourly compensation for the attorney involved in presentation of case, and after making this calculation, the court may consider other factors and assign a multiplier that either augments or diminishes the lodestar amount. (MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 12.)
In awarding $37,460.70 in attorney fees for the trial level work in this case, the trial court did not question the accuracy of counsel’s representations as to the number of hours he devoted to the litigation; nor did the court challenge the reasonableness of counsel’s proferred hourly rate. The court, however, expressly rejected Tanzel’s request to use a multiplier to increase attorney fees. Instead, for counsel’s trial-level work, the court applied a negative multiplier of 0.40 to the lodestar sum based on her findings that: (1) Tanzel’s success was limited to two of five independent claims; (2) the public benefit conferred was limited; and (3) much of the work was duplicative of work already performed in other substantially identical actions filed by Tanzel’s counsel. As for fees on appeal, the trial court awarded $5,949.59 after finding that all of the appellate fees incurred after the City offered to stipulate to stay the appeal pending the Supreme Court’s decision in O’Connell were manifestly unnecessary.
In briefing this appeal, both Tanzel and the City have filed requests for judicial notice of various documents, the relevance of which this court has reserved for consideration with its appellate opinion. As we may only notice evidence relevant to this appeal, the City’s and Tanzel’s requests for judicial notice are denied. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422-423, fn. 2.)
III. Discussion
A. Attorneyfees—General Law
Tanzel contends that the attorney fees award must be reversed because the trial court “did not apply the proper standards of law and the grounds for the reduction of fees for trial and appellate work . . . are inconsistent with the substantive law of section 1021.5 and contrary to the purposes and policy of the statute.”
As indicated, the lodestar adjustment method is employed to compute attorney fees where a statute such as section 1021.5 authorizes recovery to the prevailing party. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133-1136; Serrano v. Priest (1977) 20 Cal.3d 25, 48-49.) Under this approach, the trial court first determines the reasonable hourly rate of compensation for counsel, which it then multiplies by the number of hours the court finds were reasonably spent preparing the case. Next, the base amount “may then be increased or reduced by application of a ‘multiplier’ after the trial court has considered other factors concerning the lawsuit.” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322, fn. omitted.)
A good portion of Tanzel’s opening brief is spent arguing that she is entitled to “prevailing party” status and therefore entitled to attorney fees under section 1021.5. However, the City does not question Tanzel’s prevailing party status through a cross-appeal. Indeed, the City proceeds in this appeal on the assumption that Tanzel is a prevailing party under section 1021.5, and argues only that the trial court’s award amount should be affirmed. Consequently, Tanzel’s arguments in this regard are wholly irrelevant.
“Although discussions in the case law of the use of multipliers to adjust a lodestar figure relate primarily to the use of multipliers to increase fees, our Supreme Court has repeatedly observed that a lodestar figure may be adjusted not just upward but also, where appropriate, downward. [Citations.]” (Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 840, italics omitted (Thayer); Ketchum v. Moses, supra, 24 Cal.4th at p. 1134.) The loadstar figure may be decreased by looking at the same factors used to increase fees, including “ ‘. . . the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’ [Citation.]” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 160-161.) Nevertheless, “[t]here is no hard-and-fast rule limiting the factors that may justify an exercise of judicial discretion to increase or decrease a lodestar calculation. [Citation.]” (Thayer, supra, 92 Cal.App.4th at p. 834.)
While we consider Tanzel’s arguments challenging the factors used by the trial court in reducing the basic loadstar figure, we keep in mind that we may not disturb the ruling here “ ‘absent a showing that the court abused its discretion . . ., i.e., the record establishes there is no reasonable basis for the [ruling].’ [Citation.]” (Ciani, supra, 25 Cal.App.4th at p. 571; Hogar v. Community Development Com. of City of Escondido (2007) 157 Cal.App.4th 1358, 1364 (Hogar).) As one such court recently noted, there is “no mechanical formula [that] dictate[s] how the [trial] court should evaluate all these factors. Instead, it ha[s] wide latitude in assessing the value of the attorney’s services, and its decision [is] not to be disturbed on appeal absent a manifest abuse of discretion. [Citations.]” (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 639.)
B.Degree of Success
The trial court made a pragmatic assessment of the limited practical impact of this case in adjusting the attorney fees award downward. The court observed that it was “arguable” whether this litigation “resulted in a significant benefit, pecuniary or otherwise, being conferred on [the] general public.” (See Farrar v. Hobby (1992) 506 U.S. 103, 114 [explaining that while “the prevailing party inquiry does not turn on the magnitude of the relief obtained,” the degree of success obtained is “ ‘the most critical factor’ in determining the reasonableness of a fee award.”].)
In considering the scope of the vehicle forfeiture litigation as a whole, the trial court was justified in concluding that the practical results achieved in this case were, at most, de minimis. This case played an entirely inconsequential and duplicative role in the Supreme Court’s eventual resolution of the vehicle forfeiture cases on preemption grounds in O’Connell, which rendered all of the issues addressed in Tanzel I moot. This circumstance provides an articulable reason why the attorney fees should be reduced due to the equivocal nature of Tanzel’s success. (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 454 [“The ‘degree of success’ is one of the factors that a trial court should consider in setting the amount of a reasonable attorney’s fee award. [Citation.]”]; Miller v. California Com. on Status of Women (1985) 176 Cal.App.3d 454, 458 [“procedural success during the course of litigation is insufficient to justify attorneys’ fees where the ruling is later vacated or reversed on the merits”].)
Notwithstanding the trial court’s skepticism whether Tanzel’s action had actually conferred a public benefit, the trial court granted an attorney fee award of $37,460.70 for counsel’s limited success at the trial level. Specifically, the trial court found that, while Tanzel “did prevail on some issues,” it observed that this court in Tanzel I ultimately rejected most of Tanzel’s constitutional claims.
A reading of Tanzel I indicates that Tanzel’s success was limited to establishing a procedural due process violation because the Ordinance contained no provision for a reasonably prompt post-seizure probable cause hearing on the City’s right to detain the vehicle, and her entitlement to attorney fees under the “catalyst” theory because the City amended its Ordinance to provide for the right to a jury trial after Tanzel brought her lawsuit.
The trial court believed that the number of hours awarded in counsel’s fee request must be commensurate with the degree of success Tanzel had achieved in this litigation and proceeded to grant fees for the two successful claims and denied fees for the three unsuccessful claims (preemption, pecuniary interest in forfeiture proceedings, financially interested decision maker). In doing so, the trial court allocated counsel’s time evenly among the five claims, and granted two-fifths, or 40 percent of the total fees claimed for counsel’s trial services. The trial court rejected counsel’s argument that the vast majority of his time was attributable to the successful post-seizure hearing claim. The court noted it was “impossible to verify” counsel’s claim because of the “vague nature of [the] billing records.”
Tanzel claims error, noting that case law establishes that “[w]here a lawsuit consists of related claims, and the plaintiff has won substantial relief, a trial court has discretion to award all or substantially all of the plaintiff’s fees even if the court did not adopt each contention raised.” (Downey Cares v. Downey Community Development Com. (1987) 196 Cal.App.3d 983, 997.) However, we believe the situation in this case is more aptly profiled in Hogar, supra, 157 Cal.App.4th 1358, which held “that a reduction from the lodestar is appropriate” in a case where the “plaintiff has achieved limited success, or has failed with respect to distinct and unrelated claims . . . .” (Id. at p. 1369; accord, Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 248-249 (Sokolow); see generally Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed. 2008), § 13.11, pp. 396.1-396.3 & cases cited therein.) Consequently, the trial court was entitled to “reduce the amount of the attorney fees to be awarded where a prevailing party plaintiff is actually unsuccessful with regard to certain objectives of its lawsuit.” (Sokolow, supra, 213 Cal.App.3d at p. 249.)
Here, the trial court’s application of fractional multiplier of 0.40 to adjust the lodestar amount of attorney fees awarded under private attorney general statute was proper where Tanzel’s separate and distinct constitutional and preemption claims could easily be segregated into successful and unsuccessful ones. (Compare Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 975.) In computing the precise amount awarded for the successful claims, “ ‘[t]here is no precise rule or formula for making these determinations. The [trial] court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment.’ ” (Sokolow, supra, 213 Cal.App.3d at p. 248.)
In this case, the trial court decided not to grant fees for the two successful claims by reference to the billing time sheets submitted by Tanzel’s counsel because the court found the so-called block billing format (i.e., describing all tasks performed on a day and giving the total time spent that day) made it difficult or impossible in many instances to determine from the records how much time had been reasonably spent on successful claims. We find no abuse of discretion in the court’s approach. Although block billing is certainly not prohibited, when block billing is used, the trial court may “exercise its discretion in assigning a reasonable percentage to the entries, or simply cast them aside.” (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 689.) Similarly, where allocation between fee and nonfee claims is a “ ‘near impossibility,’ ” the court may simply make a reasonable estimate. (Track Mortgage Group, Inc. v. Crusader Ins. Co. (2002) 98 Cal.App.4th 857, 867-868.) The record amply supports the trial court’s decision to award 40 percent the lodestar for Tanzel’s limited success.
C. Duplicative Litigation
In applying a negative multiplier decreasing the lodestar, the court also noted “the issues raised in [this] case had been presented and decided by other courts” and “[p]laintiff’s counsel had in fact litigated many of these cases.” This observation is borne out by the record. At the time Tanzel filed her action challenging the Ordinance, her counsel was litigating at least three other substantially identical lawsuits in other courts. (Sohigian v. City of Oakland (Mar. 18, 2008, A103031 [nonpub. opn.]), review den. June 17, 2008 (Super. Ct. Alameda County, 2002, No. 2002-065397); Hernandez v. City of Sacramento (2007) 147 Cal.App.4th 891, review granted May 9, 2007, S151356, ordered dismissed Nov. 14, 2007 in light of decision in O’Connell, supra, 41 Cal.4th 1061 (Super. Ct. Sacramento County, 2002, No. 02AS07396); & O’Connell, supra, 41 Cal.4th 1061 (Super. Ct. San Joaquin County, 2001, No. CV019275).) The other cases in which Tanzel’s counsel served as plaintiff’s counsel addressing substantially similar issues include City of Los Angeles v. 2000 Jeep Cherokee (2008) 159 Cal.App.4th 1272; Smith v. Santa Rosa Police Department (2002) 97 Cal.App.4th 546; and Samples v. Brown (2007) 146 Cal.App.4th 787.)
As already noted, by the time our opinion was issued in Tanzel I, “all of the important issues presented” had already been decided by other appellate courts “considering similar challenges to nearly identical ordinances enacted by other municipalities.” Moreover, the California Supreme Court had granted review in O’Connell, a case which was also brought by Tanzel’s counsel, which would eventually result in an opinion finding that all of the local vehicle forfeiture ordinances were unenforceable because they were preempted by state law.
We find the trial court acted well within its discretion in finding that “the unjustified duplication of work that took place requires a negative multiplier decreasing the lodestar.” (Thayer, supra, 92 Cal.App.4th at p. 834, original italics.) As the court observed in Thayer, “[f]ederal case law raises the question whether it is appropriate at all to award attorney fees ‘in tag-along actions—representative lawsuits brought with different named plaintiffs which substantially track actions previously brought.’ [Citation.] As the [United States Court of Appeals for the Second Circuit] has pointed out, ‘[w]hile there is no first-in-time rule governing the award of counsel fees where multiple litigation is brought, a duplicative action which contributes virtually nothing to the ultimate result cannot justify an award of counsel fees. . . . [Citation.] Where [the] goal [of the litigation] is fully achieved by a single well-managed action, an award of compensation to latecomers who add nothing of value would encourage the bringing of superfluous litigation solely for an award of fees.’ [Citations.]” (Thayer, supra, 92 Cal.App.4th at p. 841, italics added.) Our Supreme Court has expressed similar limitations on fee awards, explaining that “reasonable” compensation does not include compensation for “ ‘padding’ in the form of inefficient or duplicative efforts . . . .” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.)
Tanzel’s counsel insists that the amount of time spent litigating this case was reasonable under the circumstances because “the City flatly refused to agree to forgo enforcement pending the outcome of the other cases”; consequently, “plaintiff’s counsel reasonably believed this litigation was necessary to prevent the City from enforcing its ordinance.” Counsel claims “[i]t was not until April 18, 2006, in moving this Court for a stay of briefing, that the City first indicated it would forgo enforcement of the Ordinance . . . .” (Original boldface & italics.) In countering this argument below, the City argued it had “never enforced the [Ordinance] and submitted to the Court that it would not enforce the [O]rdinance . . . until a decision on the merits was entered in this matter. As such, the rights that [Tanzel] claims to have protected were never threatened . . . .” (Original italics.)
In support of this argument, Tanzel emphasizes that “the City either did not respond to or summarily rejected [Tanzel]’s many requests that the City agree to forgo enforcement pending the outcome of the other cases.” However, Tanzel’s offers to settle this case, which included an agreement to stay enforcement of the Ordinance, were coupled with the requirement that the City pay substantial attorney fees to Tanzel’s counsel. Under these circumstances, it would be unfair to infer that the City refused to enter into such an agreement because it wanted to preserve its right to enforce the Ordinance at its own discretion. It is just as likely that the City was balking at paying counsel’s attorney fees out of public funds.
In its findings, the trial court resolved this issue in the City’s favor and suggested Tanzel’s taxpayer challenge to the Ordinance was unnecessary in light of all of the other cases raising substantially identical issues because “Richmond had never enforced [the] ordinance and [Tanzel’s] attorney acknowledged lack of enforcement as early as February 2004.” In support of the trial court’s resolution of this issue, the record contains a letter dated February 12, 2004, from Tanzel’s counsel to the City indicating counsel “was shocked to learn that the City has never enforced” the Ordinance. (Original italics.) The record also contains counsel’s billing entry, dated November 18, 2003, requesting fees for preparing a motion for a preliminary injunction to enjoin enforcement of the Ordinance. The entry contains the notation that the motion was never filed because it became “moot” when the “City later indicated [it was] not presently enforcing ordinance pending outcome of litigation . . . .” In reviewing a fee award for abuse of discretion, we must “ ‘consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment.’ [Citation.]” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 685, original italics.) We conclude that the trial court was entitled to reduce counsel’s fees because his efforts in this case were duplicative and unneccessary.
D.Failure to Stay Appeal
For counsel’s appellate work in Tanzel I, the trial court awarded an additional $5,949.59. This amount reflects a full award for counsel’s appellate work up until September 28, 2005. Shortly before that date, the City offered to stipulate to stay the appeal in Tanzel I until the Supreme Court issued its decision in O’Connell, which presented issues substantially identical to those presented in this case. On September 28, 2005, Tanzel’s counsel notified the City that he was refusing to stay the appeal; and insisting instead that the appeal must go forward.
On April 18, 2006, the City filed a motion with this court seeking to defer briefing in Tanzel I pending the Supreme Court’s decision in O’Connell. The City indicates it “moved to stay the briefing in this case pending any outcome in O’Connell . . . to avoid needless time and expense in unnecessary and duplicative briefing.” The next day, April 19, 2006, Tanzel’s counsel filed opposition, “strongly” opposing the City’s motion for a stay of briefing. Tanzel’s counsel argued that this court should “resolve the significant constitutional issues” in order to provide “valuable guidance to cities, counties, vehicle owners and trial courts throughout the state; and afford[ing] the Supreme Court an opinion from which it may draw . . . .” On April 21, 2006, this court denied the City’s motion to defer briefing.
At oral argument in this matter, Tanzel’s counsel appeared to allege that this court was unaware of his opposition at the time it issued an order refusing to stay the briefing in Tanzel I. He argued that it was unfair to deny him attorney fees for pursuing an appeal that this court, acting on its own, insisted go forward. The chronological sequence outlined above defeats this argument. In considering the merits of the City’s stay request, this court gave full consideration to Tanzel’s opposition and ruled accordingly.
Fee awards under section 1021.5 contain a reasonableness requirement; and the trial court is the arbiter of the reasonableness and necessity of claimed fees. (Serrano v. Priest, supra, 20 Cal.3d at pp. 48-49.) “Attorney time spent on services which produce no tangible benefit for the client is not time ‘reasonably spent.’ ” (Meister v. Regents of University of California, supra, 67 Cal.App.4th at p. 452.)
The trial court here determined that counsel’s post-September 28, 2005, services were not reasonably necessary for defending or maintaining this lawsuit. The record supports this finding. As this court noted when it issued an opinion in Tanzel I, many cases had already addressed the constitutionality of the vehicle forfeiture ordinances and “a case that presents substantially identical issues now stands fully briefed in the California Supreme Court, so it is likely we will receive definitive guidance on these questions in the foreseeable future.” With the case in this posture, we cannot conclude the trial court was clearly wrong in its belief that another appeal seeking resolution of the identical claims was not reasonably necessary. Consequently, we are satisfied that the trial court acted within its discretion in refusing to award additional attorney fees after the City offered to stay the appeal.
IV. Disposition
The trial court’s order awarding $43,410.20 in attorney fees for both trial and appellate work in Tanzel I is affirmed. The City is entitled to recover its costs on appeal.
We concur: Reardon, J., Rivera, J.