Abuse of Discretion Standard Did Not Prevent Reversal When Record Showed Errors, According to Sixth District.
In an interesting contrast to the way the abuse of discretion standard was deferentially applied in our contemporaneous post in Murrell v. Rolling Hills Community Association, the Sixth District found that the trial court abused its discretion in numerous ways in the amount of fees awarded in a financial elder abuse case (even though the issue of fee entitlement was not disputed).
Defendant in Bell v. Bunch, Case No. H032980 (6th Dist. Jan. 31, 2011) (unpublished) was found to have committed financial elder abuse against plaintiff. Welfare and Institutions Code section 15657.5(a) has a fee shifting statute. In a postjudgment order which was separately appealed (something we have argued should be done in all cases), the trial court awarded plaintiff statutory fees and costs of $290,684.93 inclusive of a 1.2 multiplier on everything but “fees on fees” plus $5,824 in expert witness and investigation fees. Defendant appealed, challenging entitlement on some of the costs and the amount of fees awarded. (Plaintiff had sought a lodestar of $256,138.75, plus $5,824.43 in expert witness/investigation fees, or a total lodestar of $261,963.18 plus addition of a 1.5 multiplier for a total request of $392,944.77.) Defendant Bunch’s appeal was a good move.
Elderly man clasping cane. c1900. H.L. Bundy, photographer. Library of Congress.
The Sixth District found the trial court erred in awarding expert witness/investigation fees and abused its discretion or failed to exercise discretion in determining a reasonable fee award and in the addition of a multiplier.
Although Welfare and Institutions Code section 15657.5(a) allows for costs (including reasonable fees for a a conservator), Code of Civil Procedure does not allow for recovery of expert witness fees or investigation expenses except under narrow circumstances not present. ($5,824 was the total expert/investigation costs awarded in this case.) The appellate court determined the language of section 15657(a) did not allow for recovery of costs not otherwise authorized in the CCP, except for the conservator fees.
The main flaw with the amount of the fee award was the failure to apportion work between the compensable elder abuse claim and other claims. Although plaintiff argued that the claims were intertwined, the appellate court could identify specific work (example, on the conversion claim) where apportionment was clearly warranted. The failure to apportion was compounded by the block billing of plaintiff’s counsel, a subject that we have written about in many prior posts. (Use our search tool to find them–simply enter “block billing.”) Apportionment was clearly warranted in this instance, according to the Sixth District.
Clerical and messenger charges were improperly awarded as fees because the record did not reflect if they were reasonably necessary to the conduct of the litigation so as to awardable under Ladas v. California State Auto Assn., 19 Cal.App.4th 761, 776 (1993) and Nelson v. Anderson, 72 Cal.App.4th 111, 132 (1999). A remand was necessary to determine if this was so.
The trial court also did not exercise its discretion by disallowing duplicative and excessive charges, highlighted by some 9-17.9 hour time entries on consecutive days by a single attorney for “review and analyze documents for plaintiffs’ trial exhibit list.” An overly deferential approach cannot be used which results in simply rubberstamping a fee award. (Donahue v. Donahue, 182 Cal.App.4th 259, 271 (2010) [one of our Top 20 Cases for 2010]; PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 1095 (2000) [one of our Leading Cases].)
Lastly, the 1.2 multipler was an enhancement that should not have been made. The matter was not that complicated, being a 5 1/2 day court trial. Although skill was displayed, counsel claiming the bulk of the fees entered the case just a few weeks before trial, which did not preclude significant other employment. No contingency arrangement was involved. Only a lodestar was justified in this one.
Matter remanded for a redo, with discretion to be exercised by the lower court in accordance with the applicable legal principles.