Ramon v. County of Santa Clara -

Document Sample
Ramon v. County of Santa Clara - Powered By Docstoc
					Filed 5/4/09
                      CERTIFIED FOR PARTIAL PUBLICATION 


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


MARTIN RAMON,                                       H032542
                                                   (Santa Clara County
        Plaintiff and Appellant,                    Super. Ct. No. CV038065)

        v.

COUNTY OF SANTA CLARA,

        Defendant and Appellant.



        Martin Ramon brought a class action to prevent the County of Santa Clara
(County) from billing individuals for the cost of their arrests for driving under the
influence of alcohol or drugs when there was no emergency “incident” as the term is used
in Government Code section 53150. After the parties entered into a settlement agreement
that provided injunctive and declaratory relief to the class, the trial court awarded
attorney‟s fees to Ramon pursuant to Code of Civil Procedure section 1021.5.1 On
appeal, Ramon challenges the amount of the attorney‟s fees award. He contends that the
trial court erred in concluding that the case of Connerly v. State Personnel Bd. (2006) 37
Cal.4th 1169 (Connerly) precluded the recovery of attorney‟s fees to Ramon for work
performed by his counsel in opposing the County‟s amicus curiae brief in a related




        Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of section II.B.
1
        All further statutory references are to the Code of Civil Procedure unless stated
otherwise.
lawsuit that resolved the issue in the present case. We agree and remand for a
determination of the appropriate fee award for such work.
       The County cross-appeals and argues that the trial court abused its discretion in
awarding attorney‟s fees for services provided by Ramon‟s counsel in a previous action
filed in Alameda County. We reject this argument.


                         I. Factual and Procedural Background
       In July 2002, Ramon was one of several plaintiffs naming the County and other
public entity defendants in Dubray v. City of Dublin, et al., in Alameda County Superior
Court case No. 2002057128 (Dubray). At issue was whether Government Code section
53150 et seq. authorized governmental agencies to bill individuals, who had been arrested
for driving under the influence without being involved in an accident, for emergency
response costs. In August 2002, the first amended complaint, which named eight
individual plaintiffs and 10 separate public entity defendants, was filed in Dubray. Each
plaintiff was a resident of a different county.
       In March 2003, a second amended complaint was filed in Dubray, which increased
the number of individually named plaintiffs to 13 and public entity defendants to 23. In
response to the second amended complaint, the defendants raised standing and joinder
issues. In June 2003, the trial court ruled on several joinder and class action issues, and
sustained the defendants‟ demurrer to the second amended complaint with leave to
amend.
       After the defendants filed demurrers to the plaintiffs‟ third amended complaint in
Dubray, the trial court ruled that the plaintiffs‟ allegations of commonality were
insufficient to support a defendant class and sustained a demurrer to the class action
allegations without leave to amend. The trial court also ordered a case management



                                              2
conference to address procedural issues involving its jurisdiction over claims against non-
Alameda County entities.
       In November 2003, the trial court issued an order that stayed all proceedings
against non-Alameda County entities, including the County, pending the plaintiffs‟
decision regarding the filing of a petition for coordination. The plaintiffs‟ petition for
coordination was denied in February 2004. In June 2004, the trial court dismissed the
Dubray action as to all non-Alameda County entities on the ground of misjoinder.
       In March 2005, Ramon filed a class action complaint in Santa Clara County
Superior Court against the County seeking declaratory and injunctive relief, and alleging
breach of contract, money had and received, and a violation of the equal protection
clause. In May 2005, the County filed a demurrer to the complaint. Following the filing
of opposition by Ramon, the trial court overruled in part and sustained in part the
County‟s demurrer.
       In September 2005, Ramon filed a first amended class action complaint. After the
County filed an answer, the trial court imposed a stay upon request by the parties pending
the decision in California Highway Patrol v. Superior Court (Allende) (2006) 135
Cal.App.4th 488. The issue in Allende was which costs could be recovered under
Government Code section 53150. The County and the League of California Cities filed
an amicus brief in Allende in which they argued, as the County asserted in the present
case, that emergency response costs were recoverable even when there had been no
incident requiring an emergency response. Ramon‟s attorneys filed opposition to the
County‟s amicus brief. On January 4, 2006, the reviewing court issued its decision in
Allende, in which, among other things, it rejected the County‟s position. Ramon and the
County then executed a settlement agreement in November 2006. Pursuant to this
agreement, the County agreed to end its practice “of billing „emergency response‟ costs
to persons arrested for driving under the influence of alcohol or drugs („DUI‟) in

                                              3
situations in which there has been no „incident resulting in an appropriate emergency
response‟ as that phrase is used in California Government Code section 53150 . . . .” The
County also agreed to pay “reasonable . . . attorney fees as determined by the Court,”
$1,000 in costs, and $1,000 to Ramon.
       In February 2007, Ramon filed his motion for attorney‟s fees pursuant to the terms
of the settlement agreement and section 1021.5. Ramon argued that reasonable attorney‟s
fees included not only compensation for certain services rendered in Dubray, but also for
those rendered in Allende.
       On November 28, 2007, the trial court issued its order on Ramon‟s motion for
attorney‟s fees and costs. The trial court awarded Ramon $127,799.90 for attorney‟s fees
incurred in the present case. The trial court found that Ramon had submitted sufficient
evidence of all hours reasonably spent and of the reasonableness of counsel‟s hourly
rates. The trial court denied Ramon‟s request for $81,539.10 for attorney‟s fees incurred
in opposing the County‟s amicus efforts in Allende, reasoning that, “[t]raditionally, amici
curiae have not been considered parties liable for attorney‟s fees. (See Connerly v. State
Personnel Board (2006) 37 Cal.4th 1169, 1177.) [The County] was not a party to the
Allende matter, and participated in the Allende appeal solely in the capacity of an amicus
curiae.” The trial court then awarded Ramon attorney‟s fees incurred in Dubray in the
amount of $29,943.24.
       Ramon filed a motion for reconsideration, which the trial court granted. The trial
court modified the order to award Ramon $1,000 in costs. It also modified the amount
for attorney‟s fees incurred in Dubray and awarded $44,614.20. The order also stated
that the total award of fees and costs was $173,414.10, and that “[t]o the extent possible,
the attorney‟s fees” should be paid out of the class fund as provided in the parties‟
settlement agreement.



                                              4
                                      II. Discussion
                                        A. Appeal
       Ramon argues that the trial court erred in denying his request for attorney‟s fees
that were incurred in opposing the County‟s amicus brief in Allende.
                                  1. The Allende Action
       In Allende, supra, 135 Cal.App.4th 488, real party in interest Allende caused a car
accident while he was under the influence of alcohol. (Allende, at p. 493.) After the
California Highway Patrol (CHP) billed Allende for various expenses in responding to
the accident, he brought a class action complaint, which alleged, among other things, that
the CHP could not charge him for some of these services under Government Code
section 53150. (Allende, at pp. 493-494.) The trial court ruled in favor of Allende, and
the CHP brought a petition for writ of mandate. (Allende, at p. 495.) The County and the
League of California Cities then sought to file an amicus brief in the reviewing court,
arguing that the court‟s analysis would not be “complete” unless it considered “what
constitutes an „incident‟ triggering a public agency‟s right to seek reimbursement of costs
under section 53150.” (Allende, at pp. 495-496.) The reviewing court granted the
request, but rejected the County‟s argument that “an arrest for driving under the influence
of alcohol or drugs qualifies as an „incident,‟ regardless of whether the driver causes an
accident.” (Allende, at pp. 496, 498-502.) The Allende court then held that the trial court
had erred in its determination as to which costs the CHP was entitled to recover under
Government Code section 53150, and granted the peremptory writ of mandate. (Allende,
at pp. 502-509.)
                                 2. Standard of Review
       The parties dispute the appropriate standard of review. Ramon argues that this
court must consider the issue de novo, while the County argues that the proper standard is
abuse of discretion. In Connerly, supra, 37 Cal.4th 1169, the California Supreme Court

                                             5
stated: “ „On review of an award of attorney fees after trial, the normal standard of review
is abuse of discretion. However, de novo review of such a trial court order is warranted
where the determination of whether the criteria for an award of attorney fees and costs in
this context have been satisfied amounts to statutory construction and a question of law.‟ ”
(Connerly, at p. 1175, quoting Carver v. Chevron USA, Inc. (2002) 97 Cal.App.4th 132,
142.)
        Here, the trial court denied attorney‟s fees incurred in the Allende case, because
the County “was not a party to the Allende matter, and participated in the Allende appeal
solely in the capacity of an amicus curiae.” Thus, the trial court‟s order was based on its
resolution of a question of law. The County argues, however, that the abuse of discretion
standard applies, because the facts in the present case are more complex than those in
Connerly. We find no merit to this argument. The trial court‟s order was based on its
conclusion that it had no authority to award attorney‟s fees. Moreover, the facts relating
to both Ramon‟s and the County‟s involvement in Allende and the relationship between
the litigation in Allende and the present case are undisputed. Accordingly, this court
reviews the issue de novo.
                                        3. The Merits
        Section 1021.5 codifies the private attorney general doctrine of attorney‟s fees.
This statute authorizes the trial court to award “fees to a successful party against one or
more opposing parties in any action which has resulted in the enforcement of an
important right affecting the public interest . . . .” (§ 1021.5.) 2 At issue in the present

2
       Section 1021.5 provides: “Upon motion, a court may award attorneys‟ fees to a
successful party against one or more opposing parties in any action which has resulted in
the enforcement of an important right affecting the public interest if: (a) a significant
benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a
large class of persons, (b) the necessity and financial burden of private enforcement, or of
enforcement by one public entity against another public entity, are such as to make the
award appropriate, and (c) such fees should not in the interest of justice be paid out of the
                                               6
case is whether Ramon could recover attorney‟s fees that were incurred in opposing the
County‟s amicus brief in the Allende action.
       We first consider whether Connerly is controlling. In Connerly, supra, 37 Cal.4th
1169, the plaintiff brought an action against six state agencies in which he challenged the
constitutionality of several statutes that provided governmental preferential treatment
based on race, sex, and other categories. (Connerly, at p. 1172.) Since the state agencies
either did not participate in the litigation or litigated only the issues of standing and
justiciability, the defense of these statutes was then left to various advocacy groups that
supported affirmative action. (Ibid.) These groups filed amicus briefs and were
eventually designated real parties in interest. (Ibid.) They then sought to remove the
action to federal court, filed a motion to peremptorily challenge the trial judge, sought
discovery, and filed a cross-appeal. (Connerly, at pp. 1173-1174.) However, the
advocacy groups did not prevail, and the trial court eventually ordered the state agencies
and the advocacy groups to pay attorney‟s fees to the plaintiff under section 1021.5.
(Connerly, at p. 1174.)
       At issue in Connerly was whether the advocacy groups could be considered
“ „opposing part[ies]‟ ” under section 1021.5. (Connerly, supra, 37 Cal.4th at p. 1175.) In
interpreting the statute, our high court stated that “[g]enerally speaking, the opposing
party liable for attorney fees under section 1021.5 has been the defendant person or
agency sued, which is responsible for initiating and maintaining actions or policies that


recovery, if any. With respect to actions involving public entities, this section applies to
allowances against, but not in favor of, public entities, and no claim shall be filed
therefor, unless one or more successful parties and one or more opposing parties are
public entities, in which case no claim shall be required to be filed therefor under Part 3
(commencing with Section 900) of Division 3.6 of Title 1 of the Government Code. [¶]
Attorneys‟ fees awarded to a public entity pursuant to this section shall not be increased
or decreased by a multiplier based upon extrinsic circumstances, as discussed in Serrano
v. Priest, 20 Cal.3d 25, 49.”
                                               7
are deemed harmful to the public interest and that gave rise to the litigation.” (Connerly,
at pp. 1176-1177.) Based on that standard, the court concluded the advocacy groups
were not “opposing parties,” because they had no responsibility for the enactment or
enforcement of the statutes in question. (Ibid.) The court also observed that “amici
curiae traditionally have not been considered parties liable for attorney fees . . . [and they]
perform a valuable role for the judiciary precisely because they are nonparties who often
have a different perspective from the principal litigants.” (Connerly, at p. 1177.) The
court also rejected the plaintiff‟s argument that the advocacy groups, as real parties in
interest who actively participated in the litigation, could be considered “ „opposing
parties.‟ ” (Connerly, at pp. 1178-1182.)
       Here, the County‟s role as an amicus was not comparable to that of the advocacy
groups in Connerly. In Connerly, the advocacy groups participated in the litigation “to
advocate a position not out of a direct interest in the litigation but from [their] own views
of what [was] legally correct and beneficial to the public interest.” (Connerly, supra, 37
Cal.4th at p. 1183.) In contrast to the typical amicus curiae, here, the County was being
sued in another action for “maintaining actions or policies that [were] deemed harmful to
the public interest and that gave rise to the litigation.” (Connerly, at pp. 1176-1177.)
Though the County was not a party in Allende, and thus did not have a direct interest in
that litigation, it was nonetheless advocating the same interpretation of Government Code
section 51350 that it did in the present action. In fact, the County acknowledged the
benefits of its participation in the Allende action in its application for leave to file an
amicus brief in the trial court by noting that “negative resolution for the [CHP] could
affect whether or not other entities are interested in resolving their litigation at an early
stage. This could save the parties in numerous jurisdictions considerable time and
money.” The County and Ramon obtained a stay in the present action pending resolution
of that issue in Allende. When the issue was resolved against the County in Allende, the

                                               8
County then entered into a settlement agreement that provided injunctive and declaratory
relief to the class in the present action. Thus, Connerly is factually distinguishable from
the case before us, and its holding does not preclude an award of attorney‟s fees to
Ramon.
       We turn now to an examination of how other courts have resolved the issue of
whether a plaintiff may recover attorney‟s fees for services relating to administrative
hearings and collateral litigation. In Wallace v. Consumers Cooperative of Berkeley, Inc.
(1985) 170 Cal.App.3d 836 (Wallace), the California Department of Food and
Agriculture (Department) enjoined various consumer groups from selling milk below the
minimum price. (Wallace, at p. 841.) The consumer groups then challenged the
enforcement of the minimum price regulations by cross-complaint. (Ibid.) Prior to trial,
the parties entered into a settlement, which provided, among other things, that if the
Department held public hearings on the issue and suspended the minimum prices by a
certain date, the action would be dismissed. (Wallace, at pp. 841-842.) The consumer
groups participated in the hearings, which resulted in the Department‟s suspension of the
minimum prices, and then sought attorney‟s fees pursuant to section 1021.5 for their
participation in these hearings. (Wallace, at p. 842.) The reviewing court upheld the
award of attorney‟s fees incurred in the public hearings, because these hearings were “
„intertwined inextricably‟ ” with the lawsuit, and the legal services performed in the
public hearings were “both useful and necessary to the ultimate resolution of the action,
and directly contributed to that resolution.” (Wallace, at pp. 848-849.)
       A similar conclusion was reached in Children’s Hospital & Medical Center v.
Bonta (2002) 97 Cal.App.4th 740 (Bonta). In Bonta, several hospitals brought an action
in federal court alleging that the state Department of Health Services (DHS) reimbursed
in-state and out-of-state hospitals at different rates in violation of federal law, and they
eventually obtained the requested declaratory and injunctive relief. (Bonta, at

                                               9
pp. 750-751.) The plaintiffs also sued the DHS in state court and sought damages for
past underpayments. (Bonta, at pp. 752-753.) Following trial, the state court found in
favor of the plaintiffs and awarded attorney‟s fees under section 1021.5. (Bonta, at
pp. 755-756.) On appeal, the DHS argued that the plaintiffs were not entitled to
attorney‟s fees incurred in the federal action. (Bonta, at pp. 777-778.) The reviewing
court held that the trial court had discretion to award such fees, stating that “[t]he
ancillary judicial proceedings with which we are here concerned related very directly to
the issues presented in the action in which fees were awarded, and [the plaintiffs]
prevailed in those proceedings. While the federal proceedings may not have been a
necessary precondition of the superior court action, they materially contributed to the
resolution of the constitutional issues presented to that court. The federal rulings not only
relieved the superior court of burdensome adjudicative responsibilities it would otherwise
have had to undertake but also diminished the work required of counsel.” (Bonta, at
p. 781.)
       The County attempts to distinguish Wallace and Bonta on the ground that those
cases involved the recovery of attorney‟s fees by a single plaintiff, while the present case
involves fees incurred for services for other plaintiffs in responding to the County‟s
amicus brief. However, we do not view this distinction as dispositive. As the court
stated in Californians for Responsible Toxics Management v. Kizer (1989) 211
Cal.App.3d 961, 971-972,“[t]he question is not whether the parties to the administrative
action are the same parties involved in the lawsuit, but rather has the successful party
made the requisite showing that time spent in a related administrative proceeding was
reasonably expended on the litigation because it was both useful and necessary and
directly contributed to the resolution of the action. [Citations.]” Here, the County
inserted its controversy with Ramon into the Allende case, and thus the legal services



                                              10
incurred by Ramon‟s counsel in Allende in response to the County‟s amicus brief were
useful and necessary, and directly contributed to the settlement of the present action.
       The Ninth Circuit has also reached the conclusion that a successful party may
recover attorney‟s fees for an amicus brief in a separate action under certain
circumstances. 3 In Hasbrouck v. Texaco, Inc. (9th Cir. 1989) 879 F.2d 632 (Hasbrouck),
several gasoline retailers successfully brought an antitrust action, and were awarded
attorney‟s fees. On appeal, the defendant argued that the plaintiffs were not entitled to an
enhanced fee for their unsuccessful effort on an amicus brief in another case.
(Hasbrouck, at p. 638.) The reviewing court rejected the argument, stating that “it was
reasonable to award fees for the amicus effort as an item of service which would have
been undertaken by a reasonable and prudent lawyer to advance or protect his client‟s
interest.” (Ibid.) In Armstrong v. Davis (9th Cir. 2003) 318 F.3d 965 (Armstrong), the
plaintiffs brought a class action against, among others, the Department of Corrections
(CDC) in which they successfully argued that California‟s treatment of disabled inmates
violated both the Americans with Disabilities Act and the Rehabilitation Act.
(Armstrong, at p. 968.) The CDC filed a petition for writ of certiorari. (Ibid.) While this
petition was pending, a petition raising the same issue was filed in Yeskey v.
Pennsylvania Dep’t of Corrections (3d Cir. 1997) 118 F.3d 168 (Yeskey). (Armstrong, at
p. 968.) The Yeskey plaintiff‟s counsel asked the Armstrong plaintiffs‟ counsel to
represent the Yeskey plaintiff if the United States Supreme Court granted certiorari in
Yeskey rather than in Armstrong. (Armstrong, at pp. 968-969.) After the Supreme Court
granted certiorari in Yeskey, the Armstrong plaintiffs‟ counsel appeared on behalf of the
Yeskey plaintiff and prevailed, thereby successfully protecting the Armstrong holding.


3
      As the County acknowledges, federal decisions regarding the private attorney
general doctrine codified in statutes similar to section 1021.5 are of analogous
precedential value. (Serrano v. Unruh (1982) 32 Cal.3d 621, 639, fn. 29.)
                                             11
(Armstrong, at p. 969.) The district court awarded attorney‟s fees to the Armstrong
plaintiffs for the services that their counsel performed in Yeskey. (Armstrong, at p. 971.)
The reviewing court affirmed, stating that “prudence would compel a lawyer, as part of
his obligation to protect his client‟s interests, to accept an offer to represent a party whose
interests coincided with those of his client.” (Armstrong, at pp. 971-972.) Similarly,
here, Ramon‟s counsel‟s opposition to the County‟s amicus brief was also undertaken to
protect Ramon‟s interests.
       Relying on MBNA America Bank, N.A. v. Gorman (2007) 147 Cal.App.4th
Supp. 1 (Gorman), the County also argues that Ramon made no factual showing that he
was or could be held responsible for fees incurred by his attorneys in opposing the
County‟s amicus brief in Allende. In Gorman, the appellate division of the superior court
stated that “[t]ime is compensable [pursuant to section 1021.5] if it was reasonably
expended and is the type of work that would be billed to a client. (See Hensley v.
Eckerhart (1983) 461 U.S. 424, 434.)” (Gorman, at p. 12.) Here, Ramon presented the
trial court with time records documenting the services performed and the number of
hours spent solely on the opposition to the amicus brief in Allende case. As in Gorman
and Hensley v. Eckerhart, these services are the type of work for which an attorney
would bill his or her client.
       We conclude that the trial court had the authority to award attorney‟s fees incurred
in opposing the amicus brief in Allende to Ramon and erred in failing to exercise its
discretion. We remand the matter for further proceedings to give the trial court the
opportunity to exercise its discretion. 4


4
        The County also argues that the trial court would have abused its discretion if it
had awarded the entire amount of $81,539.10 to Ramon, because the holding in Allende
benefited several other plaintiff class actions. The trial court never considered the issue
of the appropriate amount for these services, and thus we do not reach the issue on
appeal.
                                              12
                                    B. Cross-Appeal
       The County contends that the trial court erred in awarding attorney‟s fees for
services provided by Ramon‟s counsel in the Dubray action.
                                     1. Background
       In February 2007, Ramon filed a motion for attorney‟s fees in which he submitted
a fee statement for services provided in Dubray from January 2002 to September 2004 in
the amount of $606,074. The motion was based in part on declarations by his counsel,
S. Chandler Visher and Matthew Witteman. Visher‟s declaration, dated
February 14, 2007, stated that counsels‟ time records in the Dubray action did not
distinguish among the various defendants before September 2004. He also explained
how attorney‟s fees were apportioned among the Dubray defendants. Since six Dubray
defendants had previously settled and paid approximately $140,687, the unpaid $465,387
was apportioned among the remaining seven defendants. Visher assigned the County
18 percent of this amount, or $81,638, based on three factors: (1) the length of time the
County participated in the Dubray action; (2) the County‟s annual cost collections for
driving under the influence of alcohol or drug cases; and (3) the County‟s participation in
discovery in the Dubray action. However, Witteman‟s declaration, dated
February 16, 2007, stated that approximately $273,895 in attorney‟s fees had already
been recovered in the Dubray action. Witteman also noted that other trial courts,
including the Alameda Superior Court, had approved of counsels‟ apportionment of fees
between the various Dubray defendants “with little or no modification.”
       The County filed an opposition brief in which it argued that the parties in the
Dubray action litigated joinder, standing, and coordination issues, which the plaintiffs,
including the Ramon class, lost. The County also noted that $273,895, not $140,687, in
attorney‟s fees had been paid. In addition, the County submitted declarations by its
counsel Steve Schmid and Aryn Harris. Harris‟s declaration stated that the County did

                                             13
not join in the other Dubray defendants‟ demurrer to the cause of action for improper
collection of booking fees. It further stated that the County unsuccessfully demurred to
the equal protection cause of action, successfully demurred to the breach of contract
cause of action, and successfully opposed the petition for coordination. Schmid‟s
declaration stated that, Ramon‟s counsel sought attorney‟s fees of $418,922, not
$606,074, in the cases involving other Dubray defendants and projected that the County
would pay nine, not 18, percent of that amount. He also asserted that Ramon‟s counsel
manipulated the formula from case to case, focusing on the motion for attorney‟s fees to
be paid by the City of Danville (Danville). Based on the formula used in other cases, the
County argued that, assuming any fees were recoverable in the Dubray action, Ramon
was entitled to no more than $25,938.
       Ramon‟s counsel filed a reply brief and declarations by his attorneys. Witteman‟s
declaration stated that counsel had recovered $140,687 in Dubray fees as of
September 2006, and $273,895 in fees as of February 2007. He also stated that
“[a]pproximately two-thirds of attorney time in the Dubray case, or $418,922 was spent
on matters other than joinder or coordination.” Visher‟s declaration explained the reason
for the discrepancies between the formula used in the present case and that used in other
jurisdictions. For example, the formula was initially based in part on population data
rather than DUI collection data. He noted that the former method provided the County
with an unfair advantage, because “[t]he annual DUI collections for San Jose are only
$2,000 more than Santa Clara‟s $44,000. San Jose‟s population used in the Danville fee
calculation, on the other hand, is more than 900,000 versus less than 100,000 for Santa
Clara.” Once the DUI collection data was available, this method was used in all
settlements after the Danville action. Visher also stated that a discounted lodestar of
$418,922 was used in the Danville action, because the parties agreed to discount the fees



                                             14
as part of their settlement agreement. According to Visher, the County “refused to agree
to anything approaching a reasonable fee,” and thus, counsel sought their “full fee.”
       On May 17, 2007, the trial court held a hearing on the motion for attorney‟s fees.
Harris stated that the County was not objecting to either the hourly rates nor the time
spent, but was objecting to the formula that was used for the Dubray action. Harris also
argued that the County was the prevailing party in Dubray, and thus Ramon was not
entitled to any attorney‟s fees. After the trial court observed that Ramon‟s counsel had
been compensated by various public entities with whom there was a settlement, and
indicated that counsel was asking it to speculate in terms of assigning a substantial
portion of the Dubray fees to the County, Witteman summarized the history of the case
and the formula used to apportion the fees. Harris then noted that Ramon‟s counsel had
“arbitrarily said that two-thirds of the time was spent on issues that are the benefit of this
case. I think that that‟s highly speculative, and they didn‟t put it in the motion or moving
papers, and they didn‟t ask for that. They wanted a whole $660,000.” The matter was
continued until July 9, 2007.
       During the second hearing on attorney‟s fees, Ramon‟s counsel stated that he had
developed a supplemental declaration regarding the Dubray fees. The trial court asked if
this declaration discussed separate issues of work and mentioned joinder, class action,
certification, and standing. After counsel summarized its contents, the trial court
continued the matter to allow Ramon‟s attorneys to file the supplemental declaration and
the County to file responsive papers.
       On July 16, 2007, Witteman filed a supplemental declaration. This declaration
stated that counsel had redacted the time records in the following manner: “1) time
records were reviewed first to identify and redact any time entries which related directly
or solely to defendants in the Dubray case other than Santa Clara County. This resulted
in a reduction of the overall lodestar in the Dubray case by $110,889; 2) the records were

                                              15
next reviewed to identify all time entries which related solely or partially to litigation or
procedural issues such as: defendant class certification, joinder, standing or coordination.
All time entries which were related only to these procedural issues were redacted and
reduce the Dubray lodestar by an additional lodestar $73,278; 3) the records were then
reviewed to identify mixed time entries containing tasks relating both to procedural and
substantive issues. If a time entry was determined to be mixed, the time assigned to
procedural tasks was removed from the time sheet and the lodestar was reduced
accordingly. This step further reduced the Dubray Lodestar by $83,065. All of these
reductions left a remaining lodestar of $338,842 at the current rates of plaintiff‟s
counsel.” The declaration also stated that Ramon‟s counsel had recovered $273,895 in
attorney‟s fees from other Dubray defendants, and $110,889 of this amount included
compensation for work performed solely for these other defendants. Thus, the balance of
the Dubray lodestar was $175,836 ($338,842 - $163,006 = $175,836). Ramon then
requested that “$81,638 of the remaining lodestar be apportioned to Santa Clara County
as the County was directly responsible for the bulk of the time incurred in the Dubray
case.”
         The County filed opposition to the supplemental declaration in which it argued
that Ramon was not the successful party in Dubray. The County pointed out that even
though Ramon had reduced the lodestar from $606,074 to $338,842, he was still seeking
$81,638 from the County. The County argued that Ramon‟s evidence did not allow for
an evaluation of his claim that $110,889 was spent on individual defendant issues, and he
failed to establish which time was “reasonable and necessary” to the present case. The
County also challenged Ramon‟s claim that only 30 percent of their time was spent on
procedural issues. The County then suggested three alternative methods of computing
the attorney fee award.



                                              16
       With respect to the Dubray case, the trial court awarded attorney‟s fees in the
amount of “$29,943.24 which is the average between $31,650.48 (based on [Ramon‟s]
allocation of 18% of the County‟s responsibility of lodestar of $175,836) and $28,236
(based on the County‟s suggestion of dividing „collective lodestar‟ of $338,842 by 12
Dubray defendants).” Ramon then filed a motion for reconsideration in which it argued,
among other things, that the trial court had erred in its application of the Ramon formula
for calculation of the County‟s share of the Dubray lodestar. The County filed opposition
to the motion for reconsideration in which it argued that Ramon‟s “attorneys submitted
incomplete records and altered their approach numerous times . . . [and] each proposal -
and there were several - had its obvious problems.” However, the County also submitted
that the trial court‟s “approach was fair and reasonable and within its sound discretion.”
       The trial court granted the motion for reconsideration. Using the same approach,
it modified the amount for attorney‟s fees incurred in Dubray to “$44,614.20, which is
the average between $60,991.56 (based on [Ramon‟s] allocation of 18% of the County‟s
responsibility of collective lodestar of $338,842) and $28,236.83 (based on the County‟s
suggestion of dividing collective lodestar of $338,842 by 12 Dubray defendants).”
                                     2. Legal Analysis
       In order to determine the amount of attorney‟s fees awarded under section 1021.5,
the trial court begins with the lodestar, which “is produced by multiplying the number of
hours reasonably expended by counsel by a reasonable hourly rate. Once the court has
fixed the lodestar, it may increase or decrease that amount by applying a positive or
negative „multiplier‟ to take into account a variety of other factors, including the quality
of the representation, the novelty and complexity of the issues, the results obtained, and
the contingent risk presented.” (Lealao v. Benefit California, Inc. (2000) 82 Cal.App.4th
19, 26.) A successful litigant who seeks to recover attorney‟s fees for pre-complaint
litigation must also show that these services were “both useful and necessary to the

                                             17
ultimate resolution of the action.” (See Wallace, supra, 170 Cal.App.3d at pp. 848-849.)
Generally, “the litigant will, as a practical matter, bear a heavier burden of demonstrating
how that activity contributed to the success of the litigation.” (Hogar Dulce Hogar v.
Community Development Com. of City of Escondido (2007) 157 Cal.App.4th 1358,
1370.)
         This court applies the abuse of discretion standard in reviewing an attorney‟s fee
award under section 1021.5. (Connerly, supra, 37 Cal.4th at p. 1175.) Thus, the trial
court‟s determination “ „will not be disturbed unless the appellate court is convinced that
it is clearly wrong.‟ ” (Serrano v. Priest (1977) 20 Cal.3d 25, 49, quoting Harrison v.
Bloomfield Building Industries, Inc. (6th Cir. 1970) 435 F.2d 1192, 1196.)
         We first note that the County stated in its opposition to Ramon‟s motion for
reconsideration that the trial court‟s “approach was fair and reasonable and within its
sound discretion” in awarding at least $29,943.24. However, the County now contends
that the trial court abused its discretion in awarding any attorney‟s fees incurred for
services in the Dubray action.
         The County first argues that the Ramon class received no benefit from its
attorneys‟ efforts to include the present action in the Dubray action by joinder or
coordination. However, Ramon submitted time sheets that did not include time
associated with defendant class certification, joinder, standing, or coordination in its time
records. Time spent exclusively as to other defendants in the Dubray action was also not
included. Thus, Ramon calculated that the total amount of the fees was $338,842, which
was the figure used by the trial court in averaging the amounts proposed by the parties.
         The County next claims that Ramon failed to present competent evidence that the
work in Dubray was useful in the present action, and that Ramon‟s counsel could not
ethically bill him for such services.



                                              18
       Ramon submitted time sheets that documented legal research, investigation,
preparation of government claims, contacts with class representatives, preparation of
complaints, response to demurrers, and discovery. He also submitted declarations by his
counsel that “this adjusted lodestar amount was both necessary, useful and directly
impacted on this litigation and resolved numerous substantive legal issues contributing
directly to resolution of the present action.” Witteman‟s declaration further stated that
both the Dubray case and the present case “involved the same parties, claims issues and
facts,” and pointed out that the County “actively litigated legal issues regarding plaintiff
class allegations . . . , injunctive and declaratory relief, government claims, administrative
exhaustion, money had and received, mandatory duties, local ordinances, . . .
constitutional claims, and others.” Witteman‟s declaration then noted that “nearly all” of
these issues “were decided favorably for plaintiffs and those decisions being fully
litigated would constitute issue preclusion in any subsequent action.” Thus, there was
competent evidence to support the trial court‟s finding that the fees incurred in Dubray
were reasonably necessary to the outcome in the present case.
       The County argues, however, that Ramon included fees incurred in Dubray after
the trial court dismissed the Ramon class from the Dubray action on June 9, 2004.
Where a party has failed to object in the trial court, an appellate court will not consider
the issue on appeal. (Bonta, supra, 97 Cal.App.4th at p. 776.) Here, the County
conceded in its opposition to Witteman‟s supplemental declaration that it did not “go
line-by-line to determine whether or not every procedural matter has been excluded from
the fee application”, thus denying Ramon the opportunity to refute the County‟s present
claim. Accordingly, the issue has been waived. Moreover, even assuming that the issue
has been preserved for our consideration, the County has failed to show prejudice,




                                             19
because the trial court did not award the total amount of attorney‟s fees that were
requested by Ramon for the services in the Dubray action. 5
       The County also claims that Ramon initially allocated approximately $188,000 in
fees to joinder, class certification, and coordination issues, and then allocated $73,278 to
such issues. Thus, the County suggests that the adjusted attorney‟s fee statement
“represents nothing more than a guess.” First, the County has misunderstood Witteman‟s
supplemental declaration. The declaration stated that the “time entries which were
related only to these procedural issues were redacted and reduce the Dubray lodestar by
an additional lodestar $73,278,” and where there were “mixed time entries containing
tasks relating both to procedural and substantive issues, . . . the time assigned to
procedural tasks was removed from the time sheet and the lodestar was reduced . . . by
$83,065.” Thus, there was a drop of approximately $32,000 for services relating to
joinder, class certification, and coordination issues. Since the trial court could reasonably
conclude that Witteman‟s supplemental declaration was a more reliable determination of
the services to be excluded from the Dubray lodestar, the County has failed to
demonstrate that the trial court abused its discretion.


5
       In its reply brief, the County claims that the “time sheets extensively reference
work unrelated to a favorable outcome and vague entries that cannot be confirmed as
related to a favorable outcome.” They point to portions of the time sheets that refer to
services relating to “venue issues . . . , case management conference appearances and
related activity . . . , research and activity pertaining to liability of collection
agencies . . . , activity aimed at developing additional plaintiffs, additional defendants,
and new clients . . . , activity pertaining to joinder issues . . . , activity in response to
Santa Clara County‟s motion for dismissal for improper joinder . . . , work related to
claims against the City of Dublin and the City of Ukiah . . . , [and] activity pertaining to
coordination issues . . . .” First, when an issue is raised for the first time in a reply brief,
an appellate court need not consider the issue. (Bonta, supra, 97 Cal.App.4th 740, 777.)
Second, the County did not make these objections in the trial court, and thus waived
them. (Bonta, at p. 776.) Third, even assuming that the issue has not been waived, as
previously stated, the County has failed to show prejudice.
                                               20
                                      III. Disposition
       The order is reversed. We remand the matter for further proceedings to give the
trial court the opportunity to exercise its discretion to award attorney‟s fees incurred in
opposing the amicus brief in Allende to Ramon. Ramon is entitled to costs on appeal and
cross-appeal.



                                           _______________________________
                                           Mihara, Acting P. J.


WE CONCUR:




_____________________________
McAdams, J.




_____________________________
Duffy, J.




                                             21
Ramon v. County of Santa Clara
H032542

Trial Court:                                  Santa Clara County Superior Court


Trial Judge:                                  Honorable Kevin E. McKenney


Attorneys for Plaintiff and Appellant:        S. Chandler Visher
                                              Law Offices of S. Chandler Visher

                                              Matthew J. Witteman
                                              Law Offices of Matthew J. Witteman

                                              Bradley C. Arnold
                                              Law Offices of Bradley C. Arnold


Attorneys for Defendant and Appellant:        Ann Miller Ravel,
                                              County Counsel

                                              Stephen H. Schmid,
                                              Deputy County Counsel

                                              Aryn Paige Harris,
                                              Deputy County Counsel
                                              Office of the County Counsel




                                         22

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:23
posted:5/12/2010
language:English
pages:22