Costs/Reasonableness Of Fees: Fee Award Of Less Than One-Third of Requested Lodestar Affirmed, But Routine Costs Denial Reversed Because Failure To Use Judicial Council Form Was Not Dispositive

Defense Has No Obligation to Produce Its Fees Expended Absent a Proper Discovery Request, Appellate Court Rules.

     McElroy v. City of San Diego, Case No. D059562 (4th Dist., Div. 1 May 30, 2013) (unpublished) is a “meaty” decision on a lot of cross-over attorney’s fees issues. So let us begin.

     The underlying dispute involved San Diego police officers obtaining some victories on whether canine care would be calculated into base compensation for purposes of calculating retirement benefits. (Given that Marc has a dog named Watson and Mike a dog named Riffle, we would think our dogs probably liked the result so far.)

Robert R. Robinson, kennel master at the White House for Herbert Hoover’s dogs, Buckeye, a German police dog; King Tut, a Belgian police dog; and Englehurst Gillette, a Gordon setter, ca1929.  Library of Congress.

      The City adopted subsequent actions excluding canine care for certain periods, prompting more litigation, but ultimately resulting in a settlement by which officers would get canine care included for retirement purposes during the period July 1, 2006-June 30, 2010. Then, plaintiff moved for attorney’s fees based on a lodestar of almost $232,000 (later increased to almost $250,000) under the private attorney general statute (CCP § 1021.5), plus a requested 1.2 multiplier. Plaintiffs also requested routine costs of $5,867.17 in the fee request, although they did not file any formal Judicial Council “Memorandum of Costs” form. (Kinda see where the issues are going, right?)

     The lower court only awarded fees of $75,000 (reducing the lodestar substantially and awarding no multiplier), plus it denied routine costs based on the lack of a filed Judicial Council costs memorandum. Plaintiffs appealed.

     Well, they lost the major challenges, but did win a reversal on the costs issue.

     Fee Challenges. Although arguing the trial court had to specify reasons for disallowing fees, this was foreclosed by numerous state court decisions indicating a Statement of Decision is not required, even though such a result runs counter to federal decisions requiring more specificity. (Gorman v. Tassajara Development Corp., 178 Cal.App.4th 44, 67, 101 (2009).) However, the appellate court did drop an interesting footnote, instructing trial courts that it would help the review process if lower courts would reveal their calculations or reasoning on fee awards. (BLOG OBSERVATION–See Padgett v. Loventhal, 706 F.3d 1205, 1207-1208 (9th Cir. 2013) [district judge needs to “show your work” to appellate court as far as arithmetic fee calculations].)

     Argument #2 on the fee award was that the City failed to challenge plaintiffs’ fee request with specificity. True enough, specificity is encouraged, but the problem here is that no authority indicates the trial court cannot entertain general objections by the nonappealing party. Put another way, win your specificity challenge below if you want to get mileage out of this argument on appeal.