First District, Division 1 Rejects State’s Challenges to Amount of Fee Award.
In an earlier appeal, certain plaintiffs successfully enjoined enforcement of certain legislation allowing for incarceration for drug-related probations violations because such a sanction was inconsistent with Proposition 36 (the Substance Abuse and Crime Prevention Act of 2000). Plaintiffs also successfully defended this result in a prior appellate proceeding. Subsequently, the lower court awarded them $423,975 in attorney’s fees (the full requested lodestar of $233,777.50 plus $14,868 for work on the fee motion, enhanced by a 1.75 multiplier) under California’s private attorney general statute (Code of Civil Procedure section 1021.5).
State defendants appealed only the amount of the fee award in Gardner v. Schwarzenegger, Case No. A125000 (1st Dist., Div. 1 Feb. 22, 2010) (unpublished). Defendants were not successful, with the full fee award being affirmed on appeal.
With respect to the awarded lodestar, the Court of Appeal found that the hourly rates—ranging from $195 for paralegals to $640 for the lead attorney plus $590 per hour for the attorney working on the fee motion—were consistent with the market rate for San Francisco attorneys with comparable skill and experience. The opinion has a nice discussion of cases where other hourly rates were pegged in lodestar cases, but the appellate panel here found that the distinguishing factor was that the case before it involved first impression, difficult public interest issues justifying the higher rates.
Plaintiffs had asked for a multiplier of 2.5, but the lower court found a 1.75 enhancement was appropriate. Defendants challenged that determination also. However, the lower court had carefully determined that the contingent risk factor justified the award, because society cannot expect skilled hourly attorneys to give up hourly work for risk-laden public interest work without some incentive for doing so. Nonetheless, some decrease in the requested multiplier was correct given the financial crisis facing California, with the lower court properly giving some weight to this factor. In fact, a multiplier may be based on a single relevant factor—in this case, risk. (Krumme v. Mercury Ins. Co., 123 Cal.App.4th 924, 947 (2004).)
Finally, even though some county officials were involved initially in the suit, no apportionment of fees was necessary between the state and county because the county officials did not really enter into the interpretative fray about the statute and Proposition 36.
Opium Den. 1909. Library of Congress.