Fourth District, Division Three Finds the Lack of Evidence to be Dispositive.
If you are going to challenge a fee claim as being unreasonable or excessive in nature, you need to be prepared to present evidence to back up these arguments. The failure to do so will likely lead to affirmance of a fee award under the deferential abuse of discretion standard, as the next case illustrates. It also teaches that, when on appeal, practitioners need to accurately summarize trial court comments in order to avoid rebukes (or possibly sanctions) against the offending attorney representing a party on appeal.
In Pacific Ranch Homeowners Assn. v. Murry, Case No. G040215 (4th Dist., Div. 3 Dec. 12, 2008) (unpublished), HOA prevailed in an action compelling Mr. Murry to remove a hot tub from his condominium unit after a trial lasting less than 8 hours. HOA sought $92,708.95 in fees, but was awarded $47,367 (probably under either Civil Code section 1354 or Civil Code section 1717; see our category “Cases: Homeowner Associations”). Mr. Murry appealed, challenging the fee award as unreasonable in nature.
Mr. Murry lost, in a 3-0 opinion authored by Acting Presiding Justice Bedsworth on behalf of a Fourth District, Division Three panel.
The main reason? He failed to present any evidence to back up his assertions that the fees were unreasonable or excessive. No declaration was presented from his attorney, much less other attorneys, attesting to the unreasonableness of the work or the hourly rates sought by the HOA attorneys. “So we are left with an opposing attorney’s belief his prevailing opponent could have won with less effort. The lament is understandable, but it hardly amounts to a showing the award was unsupported by the evidence.” (Slip Opn, at p. 3.)
As to the argument that the fees were excessive, this had no further sting due to the absence of controverting evidence or challenges to specific time entries. Besides that, wrote Justice Bedsworth, the trial court implicitly agreed, reducing the award sought by 49%.
That left two procedural challenges. The first—that a statement of decision was required—was found to simply not be the law, either for a fee motion or for a motion in general. (See Maria P. v. Riles, 43 Cal.3d 1281, 1294 (1987).) The second—that the trial court erred by failing to scrutinize the HOA attorney billings—was found to be a misstatement of the record. The trial judge indicated he needed more time to review the bills in the quiet of his chambers, taking the matter under submission and actually performing that review based on the reductions he ultimately made from the sought-after fee claim. The appellate court did rebuke appellant’s attorney for taking this comment out of context, indicating that it could lead to sanctions under the right circumstances.