First District, Division 4 Rejects Plaintiff’s Bid To Capture Full $272,581.10 in Fees That Were Incurred, Applying a Negative Multipler Instead.
Plaintiff Tanzel won a facial constitutional attack and preemption challenge to a Richmond ordinance authorizing the city to seize and forfeit vehicles used to solicit prostitution or to buy drugs. In a prior appellate opinion sustaining the win, the panel did acknowledge it was “not writing on a tabula rasa, as all of the important legal issues presented [had] been decided by other courts considering similar challenges to nearly identical ordinances enacted by other municipalities.” Except for a single exception, Tanzel’s constitutional attacks were rejected—he was successful on two claims and unsuccessful on three claims if one used a “scoreboard approach.” Plaintiff sought to recover base fees of $181,720.73 with at least a 1.5 multiplier (a minimum adjusted award of $272,581.10) under California’s private attorney general statute (Code of Civil Procedure section 1021.5). The trial court awarded him fees of $37,460.70, applying a negative multiplier of .40 to the lodestar amount. Plaintiff appealed.
The First District, Division 4 affirmed in Tanzel v. City of Richmond, Case No. A120253 (1st Dist., Div. 4 Jan. 28, 2009) (unpublished).
Here are highlights of why the diminished fee award was sustained on appeal:
- Trial courts are vested with discretion under section 1021.5 to adjust the lodestar downward, based on such factors as the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other case circumstances. (Thayer v. Wells Fargo Bank, 92 Cal.App.4th 819, 834, 840 (2001);
- No mechanical formula dictates how trial courts evaluate the various factors, with abuse of discretion being the proper review standard (Flannery v. California Highway Patrol, 61 Cal.App.4th 629, 639 (1998));
- The practical results achieved by plaintiff were de minimis because a Supreme Court decision on vehicle forfeiture cases rendered all of the issues in plaintiff’s litigation moot;
- Plaintiff lost most of his constitutional challenges, so that the lowered award reflected the success he had on one or two claims;
- The trial court fairly allocated plaintiff’s counsel’s time evenly among the five claims and granted two-fifths or 40% of requested fees for counsel’s trial services;
- The trial court was justified in reducing the fees to be awarded where a prevailing plaintiff is unsuccessful with regard to certain litigation objectives (Hogar v. Community Development Com. Of City of Escondido, 157 Cal.App.4th 1358, 1369 (2007));
- The trial court properly refused to award fees based upon an evaluation of counsel’s billing sheets, which utilized many block billing entries that either could be assigned a reasonable percentage or disregarded altogether (Bell v. Vista Unified School Dist., 82 Cal.App.4th 672, 689 (2000); and
- Counsel’s fees were duplicative of work he was pursuing in tag-along litigation on the same issues, meriting the application of a negative multiplier (Thayer, supra, 92 Cal.App.4th at 841).