Veterans Group’s Failure to Provide Adequate Appellate Record Left Intact Lodestar Reduction by Trial Court.
The opening sentence of the next case, involving a reduced fee award under Code of Civil Procedure section 1021.5, certainly caught our attention: “This is a skirmish over attorney fees after the parties settled the underlying case.”
Glenn County Veterans Council v. County of Glenn, Case No. C056749 (3d Dist. Feb. 4, 2009) (unpublished) involved plaintiff veterans groups that successfully brought a mandate petition to use the Memorial Hall in Willows in line with Military and Veterans Code section 1262, which allows counties to provide and maintain buildings for the use or benefit of veterans’ associations. The parties reached a settlement by which the remaining costs/fee issues would be submitted to the trial judge for resolution. Plaintiffs then requested $1,955.43 in costs (which they received) and attorney’s fees of $112,875 under section 1021.5 (the private attorney general statute). The fee request involved a lodestar of $75,250 (301 hours at $250 per hour) plus a 1.5 multiplier. The trial court awarded only $20,000 in fees, and both sides appealed.
Governmental defendants lost the challenge that no “important right” was involved under section 1021.5. Because there was a statutory basis for the plaintiffs’ claims and the charters of the groups required them to serve pro-veteran purposes, the trial court did not abuse its discretion in finding the case involved the enforcement of an important statutory right. (In doing so, the lower court rejected defendants’ contention that plaintiffs were only establishing a private club for gaming activities such as bingo, billiards and cards.) Also, there was a significant benefit to a large enough class of persons, given that Glenn County had 2,000 veterans (or 7% of the County’s population). The record finally supported the trial court’s implied ruling that plaintiffs’ enforcement efforts benefited a broader class than just the individuals belonging to the veterans groups.
That brought the Third District to consideration of plaintiffs’ disgruntlement over the $20,000 fee award, which was determined under the factors set forth in Serrano v. Priest, 20 Cal.3d 25, 48-49 (1977) (Serrano III) [one of our Leading Cases]. Although the record was sparse and the lower court did not explain the calculations behind its lodestar reduction, plaintiffs failed to request factual findings. This meant no adequate appellate record had been developed to show the lower court abused its discretion in reducing the lodestar. Result: fee reduction affirmed.
BLOG OBSERVATION—Although there is California state case law indicating that a statement of decision is not required in fee proceedings, this unpublished decision does contain the seeds for practitioners to argue otherwise, bringing state law in closer alignment with federal law that requires more particularity in justifying lodestar reductions. The Third District observed: “However, the court’s failure to explain how it calculated fees may result in reversal of the fee award for abuse of discretion. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1810-1811 [affirmed entitlement to attorney fees but reversed amount of fees and remanded to allow the court to make a record]; see also Press [v. Lucky Stores, Inc. (1983)] 34 Cal.3d [311] at pp. 322-325 [affirmed entitlement to attorney fees but reversed the amount of fees and remanded for calculation in accordance with Serrano III].)” For a recent example of the Ninth Circuit requiring particularized explanations of “fee haircuts” over 10%, see Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008) [reviewed in our August 2, 2008 post].