First District, Division 1 Suggests Trial Courts Should Explain Multiplier Determinations With Some Specificity.
For all of you attorneys practicing in areas that may trigger application of the private attorney general statute (Code of Civil Procedure section 1021.5), the next case will be of great interest. Not only does it highlight some discrepancies in adjudging fee awards under section 1021.5, the decision comes out and urges trial judges to explain their grants of multipliers with some degree of specificity.
Americans for Safe Access v. County of Alameda, Case Nos. A121390, A122619 (1st Dist., Div. 1 May 22, 2009) (unpublished) involved plaintiffs’ summary adjudication and permanent injunction wins about the integrity of certain electronic voting machines under Elections Code section 15630. Plaintiffs’ law firm, which specialized in elections law, requested a section 1021.5 fee award of $1,055,255.26 (a $519,207.26 lodestar, based on attorney hourly rates of $410-625, enhanced by a 2.0 multiplier). Plaintiffs submitted detailed billing and fee survey information to supports its request, with County mainly opposing the hourly rates being claimed. The trial court did reduce the hourly rates and awarded a total fee award of $875,182.80 (awarding a 2.0 multiplier found as an appropriate enhancement). County appealed.
It lost on the merits judgment and the lodestar fee component, but obtained a reversal and remand with respect to the multiplier.
Initially, the appellate panel rejected County’s argument that the partial reversal required a remand of the entire fee award. Not so. The Court of Appeal did uphold plaintiffs’ statutory claims and only reversed the constitutional rulings because they did not have to be reached given the statutory victories. Although limiting the scope of the permanent injunction, the appellate court did not reverse it such that plaintiffs did obtain the results they wanted—an injunction regarding future use of the particular electronic voting machines.
The lodestar fee award was sustained on appeal. The appellate panel rejected that the trial court had to issue a statement of decision on the lodestar calculations. (Wershba v. Apple Computer, Inc., 91 Cal.App.4th 224, 254 (2001).) It also did not accept County’s argument that plaintiffs had to hire local counsel rather than “nonlocal” attorneys specialized in elections law and practicing out of a different venue. (PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 1096 (2000)), believing the intermediate decisions suggesting otherwise—Nichols v. City of Taft, 155 Cal.App.4th 1233, 1242-1244 (2007) and Horsford v. Board of Trustees of California State University, 132 Cal.App.4th 359, 398-400 (2005)—conflict with PLCM. The Court of Appeal did not buy the proposition that only hourly rates charged by election law attorneys could be considered; “County presents no clear authority for this strict subject matter limitation regarding the assessment of attorney fees.” (Slip Opn., at p. 15.)
Although conceding that multipliers can range from 2 to 4 “or even higher,” the Court of Appeal quite strongly suggested that it would behoove trial courts to explain the reasons for applying a multiplier using the Serrano III (Serrano v. Priest, 20 Cal.3d 25, 49 (1977)) factors. It cited some decisions that had reversed unexplained multiplier decisions. (Northwest Energetic Services, LLC v. California Franchise Tax Bd., 159 Cal.App.4th 841, 880-882 (2008); Ramos v. Countrywide Home Loans, Inc., 82 Cal.App.4th 615, 625-630 (2000).) “These cases may be distinguishable on their facts, but not on their principle. In the case of a terse order which merely lists factors without explanation, a reviewing court can require further consideration if it is not clear from the record that the multiplier was a reasonable enhancement of the lodestar.” (Slip Opn., at pp. 17-18.) With this in mind, the appellate court found that some factors militated in favor of an enhancement, but others did not. The trial court’s order under review, which just tersely recited certain factors without more specific analysis, required a remand for a more informed decision—especially where a 2.0 multiplier enhancement was initially awarded.
The Court of Appeal also made these interesting observations along the way:
· Exceptional skill finding—Although there is a lack of authority requiring a court to make an exceptional skill finding on the lodestar calculation (Chavez v. Netflix, Inc., 162 Cal.App.4th 43, 61 (2008)), it did suggest that such a finding would assist review of a case where a 2.0 multiplier was applied (Slip Opn., at p. 19 n. 10); and
· Opponent’s vigorous/disputatious litigation strategy—Some authority said that this factor justifies a multiplier “but the law seems less than clear.” Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 583 (2004) has some partial support for this proposition, but it did not stand—according to this panel—for the notion that opposition throughout the entire case, creating extraordinary difficulties, justifies a multiplier. (Slip Opn., at p. 20 n. 12, noting a “but see” cite to Edgerton v. State Personnel Bd., 83 Cal.App.4th 1350, 1363 (2000).)