The opinion
Filed 8/5/24 Westlands Water Dist. v. North Coast Rivers Alliance CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
WESTLANDS WATER DISTRICT,
F085567
Plaintiff and Respondent,
(Super. Ct. No. 19CECG03887)
v.
NORTH COAST RIVERS ALLIANCE et al., OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler
Tharpe, Judge.
Law Offices of Stephan C. Volker, Stephan C. Volker, Stephanie L. Clarke and
Jamey M.B. Volker for Defendants and Appellants.
Stradling Yocca Carlson & Rauth, Allison E. Burns and Douglas S. Brown for
Plaintiff and Respondent.
-ooOoo-
This appeal concerns an award of attorney fees pursuant to Code of Civil
Procedure section 1021.5. Defendants sought fees in excess of $330,000. The trial court
awarded roughly $105,800. Defendants claim they deserve more money. Plaintiff
disagrees. The standard of review is highly deferential to the trial court, and we find no
reversible error. The amount of the award will be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants—North Coast Rivers Alliance, Winnemem Wintu Tribe, California
Sportfishing Protection Alliance, Institute for Fisheries Resources, Pacific Coast
Federation of Fishermen’s Associations, and San Francisco Crab Boat Owners
Association—collectively refer to themselves as NCRA. We do the same, but where
applicable we also use NCRA to individually reference defendant North Coast Rivers
Alliance. Plaintiff Westlands Water District is referred to as Westlands.
Litigation History
A more comprehensive background is provided in Westlands Water Dist. v. All
Persons Interested (2023) 95 Cal.App.5th 98, which we incorporate by reference. The
following is an abbreviated summary of the most relevant events.
In October 2019, Westlands filed a validation action in the Fresno Superior Court
pursuant to, inter alia, Code of Civil Procedure section 860 et seq. The deadline for
interested parties to answer the complaint was December 16, 2019. NCRA filed an
answer on the last possible day, shortly before 5:00 p.m., and the filing was rejected for
failure to pay all first appearance fees. NCRA resolved the problem the next morning.
On December 30, 2019, Westlands filed a “Motion for Validation of Contract,”
seeking entry of judgment in its favor on all issues. NCRA filed an opposition brief, as
did three other groups of defendants. The motion was decided in March 2020.
Although the trial court denied Westlands’ validation motion, it also found the
answers filed by NCRA and two other groups of defendants were untimely. This finding
would have barred NCRA from further participating in the case, and they filed an
immediate appeal. The appeal resulted in a discretionary stay of the trial court action
from approximately August 2020 through May 2021. The finding of untimeliness was
reversed by this court (Westlands Water Dist. v. North Coast Rivers Alliance (Mar. 9,
2.
2021, F081174) [nonpub. opn.]), and the trial court proceedings resumed with a case
management/status conference held on May 25, 2021. An unsuccessful settlement
conference took place in July 2021.
In September 2021, Westlands filed a “Renewed Motion for Validation Judgment”
along with a combined “Opening Brief and Memorandum of Points and Authorities in
Support of Renewed Motion for Validation Judgment.” NCRA responded by filing what
was styled as an “Opening Merits Brief.” Additional briefing followed, but there was no
trial. Westlands’ renewed validation motion was denied by written decision in October
2021. The validation complaint was ordered dismissed, and a judgment of dismissal was
entered in March 2022.
The Fees Dispute
In May 2022, NCRA filed a motion pursuant to Code of Civil Procedure section
1021.5 for an award of attorney fees. Compensation for 320.6 hours of attorney time was
requested at hourly rates of $750 (for 235.1 hours) and $450 (for 85.5 hours). NCRA
also claimed 31.1 hours of paralegal time at an hourly rate of $175. This translated to a
claimed “lodestar” of $220,242.50. NCRA also requested a multiplier of 1.5, bringing
the total proposed award to $330,363.75. In addition, NCRA sought reimbursement of
$5,668.87 for third party vendor charges incurred by counsel while performing legal
research.
Westlands disputed NCRA’s eligibility for attorney fees, which is an issue outside
the scope of this appeal. Alternatively, Westlands opposed the hourly rates claimed by
NCRA and disputed the hours spent on various tasks. In particular, Westlands criticized
NCRA’s attorneys for “block billed time entries and inadequate explanations of work
performed.” Westlands further accused NCRA’s counsel of claiming inflated hours for
brief writing when “large sections of [the] work product” were “copied and pasted from
previous filings.”
3.
On November 7, 2022, the trial court issued a tentative ruling to grant NCRA’s
motion at lesser hourly rates and for fewer hours than requested. The motion was argued
the next day and taken under submission. On November 14, 2022, the trial court issued a
written decision largely conforming to its earlier tentative ruling, but with one notable
change. Having apparently been swayed by one of NCRA’s arguments at the motion
hearing, the trial court added 23.3 hours of attorney time and 8.2 hours of paralegal time
to the previously indicated award.
The trial court’s detailed ruling addressed 10 categories of tasks performed by
NCRA’s counsel. For each category the court specified the amount of time it would
allow for principal attorney, associate attorney, and paralegal work. The total award,
after applying a multiplier of 1.5 to the lodestar, was $105,797.40. This figure included
the reimbursement of $5,668.87 for legal research costs. In other words, the award for all
attorney and paralegal time was actually $100,128.53. Further details are provided in the
body of the opinion.
Based on NCRA’s briefing, it appears they do not realize the total award included
approximately $3,885 in additional compensation beyond what was indicated in the trial
court’s category-by-category analysis. The calculation of billed time expressly allowed
for all categories was 74.5 principal attorney hours at the rate of $550 (totaling $40,975),
55.8 associate hours at the rate of $350 (totaling $19,530), and 20.9 paralegal hours at the
rate of $175 (totaling $3,657.50), which translates to a lodestar of $64,162.50. After
applying the positive multiplier of 1.5, the resulting figure is $96,243.75. Adding the
$5,668.87 reimbursement for legal research costs brings the amount to $101,912.62,
which is $3,884.78 less than the total award of $105,797.40. The significance of this
discrepancy, which inured to NCRA’s benefit, is explained in the Discussion.
4.
DISCUSSION
I. Standard of Review
Once a party’s eligibility for a fee award is established, all related decisions are
generally reviewed for abuse of discretion and/or substantial evidence. (Sweetwater
Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th
970, 980–981.) “With respect to the amount of fees awarded, there is no question our
review must be highly deferential to the views of the trial court. [Citation.] As our high
court has repeatedly stated, ‘“‘[t]he “experienced trial judge is the best judge of the value
of professional services rendered in his [or her] court, and while his judgment is of course
subject to review, it will not be disturbed unless the appellate court is convinced that it is
clearly wrong”—meaning that it abused its discretion.’”’ [Citation.]” (Children’s
Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 777.)
“An attorney who prosecutes an appeal from an order addressed to the trial court’s
sound discretion is confronted with more than a daunting task.” (Estate of Gilkison
(1998) 65 Cal.App.4th 1443, 1448.) All reasonable inferences permitted by the record
will be drawn in favor of the challenged ruling. (Denham v. Superior Court (1970) 2
Cal.3d 557, 564.) “Unless an appellant demonstrates otherwise, we assume the trial court
followed the law and acted within its discretion.” (Sonoma Land Trust v. Thompson
(2021) 63 Cal.App.5th 978, 984.)
II. Legal Overview
The determination of recoverable fees “begins with the ‘lodestar,’ i.e., the number
of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group,
Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The reasonable hourly rate is that
prevailing in the community for similar work.” (Ibid.) The rate component has also been
described as “the hourly prevailing rate for private attorneys in the community
conducting noncontingent litigation of the same type.” (Ketchum v. Moses (2001) 24
5.
Cal.4th 1122, 1133, italics omitted.) The lodestar may also include paralegal fees “if the
trial court deems it appropriate.” (Roe v. Halbig (2018) 29 Cal.App.5th 286, 312.)
Once calculated, the lodestar may be enhanced or decreased, “based on
consideration of factors specific to the case, in order to fix the fee at the fair market value
for the legal services provided.” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p.
1095.) The final award “must be based on a proper utilization of the lodestar adjustment
method, both to determine the lodestar figure and to analyze the factors that might justify
application of a multiplier.” (Flannery v. California Highway Patrol (1998) 61
Cal.App.4th 629, 647.) The 1.5 multiplier in this case was specifically requested by
NCRA and is not being challenged.
III. The Trial Court Permissibly Adjusted the Hourly Rates
A. Additional Background
NCRA’s legal counsel, the Law Offices of Stephan C. Volker, is located in
Berkeley, California. NCRA requested hourly rates of $750 for principal attorney
Stephan C. Volker, $450 for his associate attorneys, and $175 for his paralegals. In
support of this request, NCRA filed sworn declarations by attorneys Stephan C. Volker
and Richard M. Pearl, and by individual defendant NCRA’s president, Frank Egger.
Attorney Volker’s declaration highlighted his nearly 50 years of experience in the
area of environmental litigation, which he cited as justification for an hourly rate of $750.
He further declared, “[T]he reasonable market value of my services in the San Francisco
Bay Area is currently at or above $800 per hour. However, in this case I only request
compensation based on Sacramento area market rates.”1
1The Sacramento legal market is discussed throughout NCRA’s motion papers, including
all three supporting declarations. The relevance of what attorneys earn in Sacramento, which is
more than 150 miles away from where the case was venued and also outside the jurisdiction in
which both NCRA and its counsel are based, was never explained.
6.
Richard M. Pearl is a California attorney and author of numerous published works
on the subject of attorney fees, including the treatise California Attorney Fee Awards
(Cont.Ed.Bar). His declaration was intended to serve as an expert opinion on the value of
attorney Volker’s legal services in this case, as well as the services of Volker’s associates
and paralegals. Pearl opined NCRA’s counsel are “top-rate attorneys” who achieved
“excellent results” in the validation action, and the rates requested were “well within the
range of hourly rates charged by comparable Sacramento attorneys and law firms for
similar work.”
According to Frank Egger’s declaration, NCRA’s board of directors “conducted a
thorough search for the best counsel [it] could secure in Northern California to review
and enforce the requirements of the validation laws on which Westlands based its lawsuit.
… After a diligent search, including attorneys in the Fresno and Sacramento areas, [it]
determined that Stephan Volker was the best qualified attorney to protect [NCRA’s]
interests and enforce the validation laws in this proceeding.”
Frank Egger further declared NCRA “located no comparably experienced and
skilled environmental attorney in Fresno County.” The assertion was later repeated with
slightly different wording: “We found no attorneys in Fresno County who had
comparable skill and experience using the courts to protect and restore the Delta and its
tributary rivers.” Egger explained that while “there are other experienced environmental
attorneys with a background in litigation in the Sacramento area,” NCRA believed,
“based on an extensive search, none [had] anywhere near as much trial and appellate
experience and success in public interest litigation as Mr. Volker.”
Westlands, in opposition, submitted a declaration by Lauren D. Layne, a
shareholder in the Fresno law firm of Baker Manock & Jensen, PC. The firm’s clients
were said to include “Central Valley Project contractors” who, like Westlands, had “filed
validation actions regarding their recent conversions” of preexisting contracts with the
United States Bureau of Reclamation to repayment contracts. Layne’s practice “focuses
7.
on general water and environmental law,” and she serves as general counsel to “various
irrigation and water districts” and “Groundwater Sustainability Agencies.” Attorney
Layne opined that her firm, “as well as a number of other attorneys in the Fresno area
with whom [she was] familiar, [were] qualified to competently handle a validation action
such as this one.” Her firm’s hourly rates for such work were in the range of $335–$550.
The trial court scrutinized the language used by NCRA’s president, Frank Egger,
and concluded it was “unclear whether NCRA located or considered hiring attorneys in
Fresno [with] experience and skill in the relevant field, even if they did not have as many
years of experience as Mr. Volker.” The court also reasoned, “since the relevant area of
law here is validation actions, not environmental law, Mr. Volker’s impressive
experience in environmental law was not necessarily a requirement for NCRA’s defense
of the action.” In short, NCRA failed to demonstrate the necessity of hiring out-of-town
counsel.
Unlike attorney Volker, two lawyers representing codefendants County of San
Joaquin and County of Trinity attested to having significant environmental litigation
experience and extensive experience with validation actions involving water contracts.
In concurrently pending fee motions, those lawyers were requesting an hourly rate of
$525. Considering NCRA was “seeking a much higher rate” than all other defense
counsel in the case, and also impliedly relying on Westlands’ evidence (attorney Layne’s
declaration), the trial court applied “a lower rate of $550 per hour for Mr. Volker and
$350 per hour for the associates.” NCRA’s requested paralegal rate was allowed.
B. Law and Analysis
For purposes of determining the reasonable hourly rates “‘prevailing in the
community for similar work,’” the “relevant ‘community’” is where the action is venued.
(Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26,
71, quoting PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) “However, ‘in
8.
the unusual circumstance that local counsel is unavailable,’ or that ‘hiring local counsel
was impracticable,’ the trial court is not limited to the use of local rates and may instead
use the hourly rate of out-of-town counsel from a higher fee market in calculating the
lodestar amount.” (Marshall v. Webster (2020) 54 Cal.App.5th 275, 286.) One of the
first appellate decisions to recognize these exceptions was from this district, Horsford v.
Board of Trustees of California State University (2005) 132 Cal.App.4th 359.
NCRA purports to rely on Horsford, and also Center for Biological Diversity v.
County of San Bernardino (2010) 188 Cal.App.4th 603, but both are inapposite. In
Horsford, a trial court abused its discretion by “failing to adequately consider” awarding
higher rates for out-of-town counsel despite “overwhelming and uncontradicted”
evidence of the impracticability of retaining a local attorney. (Horsford v. Board of
Trustees of California State University, supra, 132 Cal.App.4th at pp. 397, 398.) “In the
absence of any realistic indication plaintiffs could have found local counsel, it was an
abuse of discretion to fail even to consider an hourly rate based on counsel’s ‘home’
market rate.” (Id. at p. 399.) A similar error occurred in Center for Biological Diversity,
where “the only evidence on the issue of availability of local counsel showed plaintiffs’
need to retain out-of-area counsel.” (Center for Biological Diversity, at p. 619.)
This case is more analogous to Rey v. Madera Unified School Dist. (2012) 203
Cal.App.4th 1223, which the trial court cited in its ruling. In Rey, the “appellants hired
out-of-town attorneys from a higher fee area, with certain of the attorneys charging over
$700 per hour. The trial court concluded these rates were excessive for the Central
Valley and instead calculated the fee award using a blended local rate of $325 per hour.”
(Rey, at p. 1241.) Although the appellants presented evidence of impracticability, the
opposing party “submitted declarations from two local attorneys … [who] declared that
they had the experience, skill and resources to accept such a case and would have taken
[the] case if asked. Thus, the trial court was faced with conflicting evidence. Moreover,
the appellants’ evidence was speculative and did not establish that appellants ever
9.
attempted to retain local counsel. Under these circumstances, the trial court did not
abuse its discretion in applying local rates.” (Ibid., italics added.)
Another analogous case is 569 East County Boulevard LLC v. Backcountry
Against the Dump, Inc. (2016) 6 Cal.App.5th 426. As here, the dispute on appeal was
over the hourly rates sought by the Law Offices of Stephan C. Volker. (Id. at pp. 429.)
The litigants “presented conflicting affidavits concerning the appropriate hourly rate for
seasoned attorneys and fifth-year associates,” and the appellant’s expert “testified that
$750 per hour for Mr. S. Volker and $350 per hour for the three fifth-year associates
working on the case was within the market range charged for similar services by similarly
qualified attorneys.” (Id. at p. 437.) “However, plaintiffs submitted contrary declarations
that the market range charged for similar services by similarly qualified attorneys was
much lower. Moreover, the court was cognizant that the rate charged by a very seasoned
attorney from the relevant community (San Diego), who [had achieved success for a
codefendant] in this same litigation … was $275 per hour.” (Ibid., fn. omitted.) The trial
court’s application of “a flat hourly rate of $275” (id. at p. 436) for attorney Volker and
his associates was affirmed on appeal.
Here, the trial court’s analysis of the artfully worded declaration of NCRA’s
president was correct. The declaration was not evidence of an inability to retain, or the
impracticability of retaining, qualified local counsel. It did not even establish that NCRA
ever attempted to contact any Fresno attorneys. There is an obvious and significant
difference between a party’s inability to secure qualified local counsel and its preference
to hire whomever it perceives to be the very best attorney in a particular field of law.
In their briefing, NCRA repeatedly contends “no comparably qualified local
attorney willing to represent NCRA on a contingent fee basis was available.” The
assertion is misleading. NCRA’s president, Frank Egger, declared “Mr. Volker was
willing to represent us in this litigation on a contingent fee basis.” The declaration says
nothing about seeking or being unable to find other attorneys that would take the case on
10.
a contingency basis. There is no evidence NCRA contacted any other attorneys or law
firms about possible representation in this case except the Law Offices of Stephan C.
Volker.
NCRA’s emphasis on the fact Westlands’ attorneys are based outside of Fresno is
unhelpful. Westlands was not the party seeking attorney fees. Clients are free to hire
whomever they wish, but their lay opinions regarding “the best qualified attorney” (as
phrased by declarant Egger) do not obligate a trial court to apply out-of-market rates.
(Italics added.)
NCRA’s reliance on In re Tobacco Cases I (2013) 216 Cal.App.4th 570 is
misplaced. There, a trial court’s finding of impracticability was upheld on appeal as
justification for awarding fees at out-of-market rates. (Id. at pp. 581–583.) The losing
party argued the hourly rates should not have exceeded those charged by the local
defense counsel it had retained. In rejecting that argument, the appellate court noted the
losing party utilized both local counsel and out-of-town attorneys from two national law
firms, with the latter having taken “‘the laboring oar.’” (Id. at p. 583.) The case does not
hold that out-of-market rates must be applied if all parties hire out-of-town counsel.
Equally unhelpful is NCRA’s argument the trial court “did not acknowledge the
expert testimony of Richard Pearl” or adopt his opinions as its own. “‘The value of legal
services performed in a case is a matter in which the trial court has its own expertise.’”
(PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096.) Attorney Pearl’s
qualifications are not in dispute, but his opinions were generalized and conclusory with
regard to the work performed by NCRA’s counsel in this particular action. “Certainly,
the trial court was not bound by the contrary opinions submitted by [NCRA’s] expert.”
(569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6
Cal.App.5th at p. 438; accord, PLCM Group, Inc., at p. 1096.)
11.
IV. The Trial Court Permissibly Reduced the Number of Compensable Hours
The following principles have recurring application to NCRA’s category-by
category arguments regarding the trial court’s disallowance of hours documented in the
billing records of NCRA’s counsel.
“The party seeking fees has the burden to prove that the trial court abused its
discretion in awarding less than the amount it sought.” (Save Our Uniquely Rural
Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179,
1184.) “Abuse of discretion review ‘“asks in substance whether the ruling in question
‘falls outside the bounds of reason’ under the applicable law and the relevant facts
[citations].”’ [Citation.] The trial court’s ruling will not be reversed if reasonable people
could disagree as to the proper outcome.” (Ibid.)
Attorney fee awards must be “‘fully compensatory,’” meaning “parties who
qualify for a fee should recover compensation for ‘all the hours reasonably spent.’”
(Roth v. Plikaytis (2017) 15 Cal.App.5th 283, 290, quoting Ketchum v. Moses, supra, 24
Cal.4th at p. 1133.) NCRA’s lawyers are not entitled to compensation for all of their
work “merely because it was performed.” (Baxter v. Bock (2016) 247 Cal.App.4th 775,
793.) “It was their burden to persuade the trial court the work was reasonably necessary,
both as to the particular tasks performed and the amount of time devoted to them.”
(Ibid.)
NCRA cites Moreno v. City of Sacramento (9th Cir. 2008) 534 F.3d 1106 as
authority for an alleged rule that trial courts must explain any and all disallowances of
hours actually worked by counsel. A similar argument was rejected in Mikhaeilpoor v.
BMW of North America, LLC (2020) 48 Cal.App.5th 240. “Moreno … is not binding on
this court and it is distinguishable.” (Id. at p. 250.) California state trial courts “are not
12.
required to state ‘each charge they find to be reasonable or unreasonable, necessary or
unnecessary.’”2 (Mikhaeilapoor, supra, at p. 250, italics added.)
A trial court’s fee adjustments will not be disturbed unless the reviewing court is
unable to rationalize them. (See Gorman v. Tassajara Development Corp. (2009) 178
Cal.App.4th 44, 101.) “It is not the absence of an explanation by the trial court that calls
the award … into question, but its inability to be explained by anyone, either the parties
or [the] appellate court.” (Ibid.) If a reasonable explanation is inferable from the record,
the decision will be upheld. (California Common Cause v. Duffy (1987) 200 Cal.App.3d
730, 754.)
Counsel’s billing records are the “starting point” for the trial court’s lodestar
determination. (Horsford v. Board of Trustees of California State University, supra, 132
Cal.App.4th at p. 397.) Bill “‘padding’ in the form of inefficient or duplicative efforts is
not subject to compensation.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) Trial
courts may therefore adjust fee awards to account for the inefficiency of having partners
or senior attorneys performing work that could be handled by associates or paralegals.
(See Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41 [“The court
reasonably could have reduced the rates based on its finding … that the name partners
were doing work that could have been done by lower billing attorneys”]; Save Our
Uniquely Rural Community Environment v. County of San Bernardino, supra, 235
2NCRA further purports to rely on Kerkeles v. City of San Jose (2015) 243 Cal.App.4th
88, which is also distinguished in the Mikhaeilpoor opinion. (Mikhaeilpoor v. BMW of North
America, LLC, supra, 48 Cal.App.5th at pp. 248–250.) According to NCRA, Kerkeles shows
“Moreno’s analysis … has been followed by California courts.” What NCRA fails to mention is
that Kerkeles involved fees awarded under a federal statute, which is why the Kerkeles court
relied on federal case law. (See Kerkeles, at pp. 99 [“Because the entitlement arises under
federal law, ‘we follow the federal standard for determining section 1988 [of title 42 of the
United States Code] issues’”], 104 [concluding “that the reasoning expressed in the court’s order
does not meet the federal criterion of a clear and specific explanation sufficient for meaningful
appellate review”].)
13.
Cal.App.4th at p. 1187 [“The trial court could reasonably have determined that billing at
partner rates for these activities was excessive”].)
“A trial court is also justified in reducing a claim if it believes the billing is
unjustly inflated.” (Save Our Uniquely Rural Community Environment v. County of San
Bernardino, supra, 235 Cal.App.4th at p. 1186.) “Block billing, while not objectionable
per se,” may preclude a fee claimant from meeting its burden of demonstrating the
reasonableness of time spent on various tasks. (Christian Research Institute v. Alnor
(2008) 165 Cal.App.4th 1315, 1325.) Where counsel’s billing entries show “a lack of
clarity in tasks performed,” the vagueness may be construed on appeal as “evidence
support[ing] the trial court’s finding that [the fee claimant’s] counsel failed to act
efficiently.” (Mikhaeilpoor v. BMW of North America, LLC, supra, 48 Cal.App.5th at p.
256.)
We now address NCRA’s category-by-category arguments.
A. Reviewing the Complaint and Drafting NCRA’s Answer
1. Background
According to the declaration of Stephan C. Volker and billing records attached
thereto, Volker spent 1.3 hours reviewing Westlands’ validation complaint in December
2019 and e-mailing other defense counsel regarding the same. Volker’s senior associate
attorney, Alexis Krieg, spent 2.3 hours reviewing the complaint and its exhibits and
sending an e-mail to Volker regarding the same. Krieg had been licensed for about 15
years.
Attorney Volker billed 11.2 hours for performing legal research in relation to the
complaint. His billing records contain five separate entries for this task between
December 4 and December 10, 2019, all described as “Legal research re: validation
complaint.” The last of those entries also said, “and emails with co-counsel.” On
14.
December 11, 2019, Volker also billed 1.5 hours for “Factual research re: validation
complaint.”
Next, Volker billed 14.9 hours over the course of three days to draft NCRA’s
eight-page verified answer to the complaint. Two of the billing entries said, “Prepare
Answer.” The third said, “Prepare Answer to WWD Complaint.” All told, accounting
for another tenth of an hour billed by Volker plus some paralegal work, NCRA claimed
31.3 attorney hours (29 at Volker’s rate) and 2.1 paralegal hours to review the complaint
and prepare (and file) the answer.
The trial court’s ruling for this category was as follows:
“NCRA’s lodestar hours appear to be somewhat inflated and the court will
reduce them accordingly. For example, NCRA’s attorneys claim to have
spent 33.4 hours [inclusive of paralegal time] on reviewing the Complaint
and drafting the Answer. [Citation.] Spending so much time on relatively
simple tasks appears to have been unwarranted, especially where the
Complaint and Answer were each only 8 pages long (although the
Complaint also included many pages of exhibits). Also, most of the time
was incurred by the senior attorney, Mr. Volker, who bills at $750 per hour,
when presumably many of the tasks could have been performed by an
associate billing at a lower rate. The court intends to allow only 15 hours
of attorney time for these tasks, with ten hours allocated to the associate’s
billing rate and five hours allocated to the senior attorney’s billing rate.
The court will also allow two hours of paralegal time.”
2. Analysis
Westlands’ validation complaint contained eight numbered pages, but the entirety
of the first page was the caption and the last page contained only five lines of substantive
text. It was basically a six-page pleading. There were also two exhibits. Exhibit “A”
consisted of two documents: a five-page resolution passed by Westlands’ Board of
Directors and a roughly 75-page draft of the contract at issue in the validation action.
Exhibit “B” was a virtually identical copy of the same draft included with exhibit “A.”
Several hours of time to review the complaint and perform research was
warranted. However, we see nothing unreasonable about the trial court’s limitation of 15
15.
total attorney hours for reviewing the complaint, conducting research, and preparing the
answer. NCRA offers no persuasive explanation of how or why it took nearly 15 hours
to draft the answer after the research had already been performed. And no explanation
has been provided for why nearly all the work was done by Volker and not his senior
associate.
NCRA’s answer is eight total pages, plus a signed verification page. The first
page is mostly taken up by the caption. There are approximately three lines of
substantive text on the first page, asserting that no response is required to the first two
paragraphs of the complaint. The second and third pages of the answer contain 23 single-
sentence responses to the remaining paragraphs of the complaint. Eight of those
responses state, “Defendants lack information and belief sufficient to answer the
allegations …, and on that basis deny each and every allegation therein.”
The fourth and fifth pages of the answer, and the first six lines of the sixth page,
are characterized as “affirmative factual allegations.” However, they merely provide
background information on each of the six defendants. For example:
“Defendant NORTH COAST RIVERS ALLIANCE (‘NCRA’) is a non-
profit unincorporated association with members throughout Northern
California. NCRA was formed for the purpose of protecting California’s
rivers and their watersheds from the adverse effects of excessive water
diversions, ill-planned urban development, harmful resource extraction,
pollution, and other forms of degradation. Its members use and enjoy
California’s rivers including the Sacramento River, the San Joaquin River,
their Delta (‘the Delta’) and their watersheds for recreational, aesthetic,
scientific study, and related non-consumptive uses. The interests of NCRA
and its members will harmed [sic] by the continued reduction in and
pollution of the freshwater flows in the Delta, degradation of its water
quality, and loss of its fish and wildlife species that validation of the
Converted Contract would cause.”
It is a matter of public record that attorneys Volker and Krieg had been
representing at least half of the NCRA defendants for many years prior to this validation
action, including in cases against Westlands. (E.g., North Coast Rivers Alliance v.
16.
Westlands Water Dist. (2014) 227 Cal.App.4th 832, 838.) NCRA acknowledges some of
the prior representation in its briefing. These attorneys were also actively representing all
the NCRA defendants in other cases when the present lawsuit was filed. (See Pacific
Coast Federation of Fishermen’s Associations v. Glaser (9th Cir. 2019) 945 F.3d 1076;
North Coast Rivers Alliance v. U.S. Dept. of Interior (E.D.Cal. 2018) 313 F.Supp.3d
1199.) The long-standing attorney/client relationship and the litigation history with
Westlands call into question how much research and writing time was needed to draft the
verified responses and “affirmative factual allegations” sections of the answer.
Moreover, the detailed background information on each defendant is reasonably viewed
as unnecessary and an inefficient use of attorney time.
The remainder of the sixth page and entire seventh page of the answer lists
NCRA’s affirmative defenses. The final page consists of a prayer for relief and signature
block. NCRA fails to demonstrate an abuse of discretion regarding the trial court’s
assessment of the first category of billing events.
B. Opposition to Westlands’ Validation Motion
1. Background
The declaration of Stephan C. Volker labels the second category of tasks as
“Prepare Opposition to Westlands’ Validation Motion 12/18/19 – 1/14/20 – 36.1 Hours.”
(Boldface omitted.) This heading is slightly misleading for two reasons. First,
Westlands’ motion was not filed until December 30, 2019. Second, despite identifying
“12/18/19” as the starting point for this category, NCRA’s stated total of “36.1” hours
included 1.3 hours of paralegal time on December 17, 2019, for tasks concerning the
rejection of its answer for failure to pay all required filing fees. NCRA also included 1.2
hours of paralegal time on December 18, 2019, in relation to the same issue. Attorney
Volker billed one hour on December 24, 2019, for “Factual research re WWD contracts.”
17.
Attorney Krieg billed 24.9 hours for reviewing Westlands’ motion, conducting
research, and drafting NCRA’s opposition. The time spent was broken down across
seven billing entries, some of which were appropriately specific. However, there was a
block billed entry for 12.4 hours that said, “Perform research, review documents, draft
opposition to Motion for Validation Judgment; prepare declaration and appendix of
exhibits in support of the same.”
Attorney Volker billed 10 hours for tasks associated with opposing the motion,
including the hour of research on December 24, 2019. There was some block billing, i.e.,
combining “Emails with co-counsel” with “edit draft opposition to WWD motion for
validation” in blocks of 2.1 hours and 5.2 hours. Another entry for 1.7 hours combined
“Review WWD’s Motion for Validation” with “emails with co-counsel.”
The trial court ruled as follows:
“This amount of time appears to be excessive. While the motion and
opposition did raise some fairly complicated legal issues, it was not
reasonable to spend over 36 hours of time on these tasks. The court will
permit 20 hours of attorney time, with 15 hours allocated to the associate’s
billing rate and five hours allocated to the senior attorney’s rate. The court
will also allow 1 hour billed at the paralegal rate.”
2. Analysis
Westlands’ motion papers included a memorandum with 15 pages of substantive
text. There were two supporting declarations, and the exhibits to one of the declarations
were voluminous. However, NCRA’s counsel was already familiar with nearly all of
those exhibits from their work reviewing the complaint and preparing the answer, and
from their representation of NCRA in prior and other actively pending litigation against
or involving Westlands. For example, one of the exhibits was a copy of the published
opinion in North Coast Rivers Alliance v. Westlands Water Dist., supra, 227 Cal.App.4th
832. Several other exhibits were earlier contracts between Westlands and the United
18.
States Bureau of Reclamation that were either at issue in, or parts of the records in, other
cases in which NCRA’s counsel was and/or had been involved.
The trial court’s disallowance of 14.9 attorney hours is somewhat harsh given the
potentially dispositive nature of the motion, but still within the limits of its discretion
considering all the circumstances and some of the block billing. NCRA focuses on the
size of the exhibits attached to its opposition brief (to be clear, not the exhibits to
Westlands’ motion) and the effort it took to compile them, but its attorneys were not
billing to create the content of those exhibits. Attorney Krieg assembled nine documents
and chose the order in which they would be presented. Block billing prevented the trial
court from knowing how much time was actually spent on that task.
C. Additional Work re: Westlands Validation Motion
1. Background
Attorney Volker’s declaration labeled the third category of work as “Review
Order Denying Westlands’ Motion for Validation 1/15/20 – 4/28/20 – 34.2 Hours.”
(Boldface omitted.) This was quite a misnomer since the referenced court order was not
issued until March 16, 2020. The claimed 34.2 hours also included work pertaining to an
appeal of part of the motion ruling, and as well as a case management conference (CMC)
statement.
Attorney Krieg billed six hours for various tasks related to reviewing Westlands’
reply brief in support of its validation motion (10 pages of substantive text) and preparing
for the motion hearing. The motion hearing was continued by the trial court, sua sponte,
from late January 2020 to February 27, 2020. Westlands made an unsuccessful ex parte
request to have the motion heard earlier. Attorney Volker spent 11.5 hours on tasks
related to the motion hearing, including block billed entries of 3.6 hours for “Review
Tentative Ruling on WWD motion and prepare for hearing; emails with co-counsel” and
3.5 hours for “Prepare for and attend hearing on WWD’s motion for validation.”
19.
On March 18, 2020, attorney Volker billed 2.2 hours for “Review Final Order;
emails with co-counsel.” The “Final Order” was the trial court’s minute order denying
Westlands’ validation motion and adopting the previously issued tentative ruling that
Volker had already reviewed when preparing for the motion hearing. Between March 24,
2020, and April 10, 2020, Volker billed 1.8 hours for research and communication with
other defense counsel regarding their appeal of the finding their answers to the complaint
were untimely. Attorney Krieg billed 5.8 hours in April 2020 for tasks related to filing
NCRA’s appeal. Those hours included two identical, duplicative 0.2 entries on April 9,
2020, regarding filing fees.
The trial court ruled as follows:
“NCRA’s counsel also claims to have spent 34.2 hours preparing for and
appearing at the hearing on the validation motion, as well as reviewing the
trial court’s order denying the motion. [Citation.] Ms. Krieg spent 13.6
hours on these tasks, and Mr. Volker spent another 16.8 hours on them.
[Citation.] Ms. Krieg also spent 3.8 hours on paralegal tasks. [Citation.]
Again, the time spent on these tasks was excessive. The court will allow
only one hour of attorney time for preparing for and appearing at the
hearing, as well [as] another hour to review the court’s order, all billed at
the associate’s rate. The court will also allow one hour of paralegal time
for this task.”
2. Analysis
The trial court’s analysis of this category was flawed, but NCRA has itself to
blame for some of the confusion. The trial court’s numbers were recited from attorney
Volker’s declaration, which contained miscalculations and misstatements about the work
performed during the subject period of January 15, 2020, through April 28, 2020. The
way his declaration was phrased made it seem like he was claiming hours only in relation
to the motion hearing and his review of the motion ruling.
Attorney Krieg billed 15 total hours during the time period in question, and 3.4 of
those hours were unrelated to the validation motion. Attorney Volker billed 16.8 hours
between the subject period of January 15, 2020, through April 28, 2020, but one hour
20.
pertained to a joint motion to stay and other time was spent on preliminary appellate
work. A total of 3.8 paralegal hours were billed during the subject period, but 1.4 of
those hours pertained to the CMC statement.
The trial court’s award of only two attorney hours and one paralegal hour would
have been unreasonable given the correct numbers and varied tasks. However, as
explained in the background section of this opinion, ante, the trial court’s final award
includes an additional $3,884.78 beyond what is reflected in its category-by-category
explanation of the compensable time. The extra sum translates to about 7.4 attorney
hours at the hourly associate rate of $350 (before applying the multiplier). Applying
some of those hours to this category puts the trial court’s decision within the limits of its
discretion.
A separate discussion is warranted regarding NCRA’s first CMC statement, which
the parties address in their briefing. The amount of time billed in connection with this
document was clearly excessive. On February 12, 2020, attorney Krieg billed 1.8 hours
for “Prepare Case Management Statement, review and edit the same.” Attorney Volker
billed 0.3 hours to edit the CMC statement. Krieg then billed 1.4 hours to “[f]inalize and
electronically file Case Management Statement.” Krieg also billed 1.4 paralegal hours
for the exact same task, i.e., finalizing and filing the CMC statement.
In total, per the billing records, NCRA’s lawyers claimed to have spent 3.5 hours
of attorney time and 1.4 hours of paralegal time to prepare a CMC statement. This is
difficult to imagine. The document was a standard Judicial Council form (CM-110, rev.
July 1, 2011) that mostly required checking boxes.
NCRA’s counsel checked 10 boxes and typed a few sentences on the form.
Counsel also included a two-page attachment with further responses to questions 1b and
4b. The response to 1b listed the names of all six NCRA defendants. The response to 4b
was, as NCRA now describes it in their appellate briefing, an “analysis discussing
numerous reasons why Westlands’ Validation Complaint was contrary to law….” But
21.
question 4b did not call for such a response. It merely instructed the filing parties to
“[p]rovide a brief statement of the case, including any damages.” What NCRA’s counsel
wrote was unnecessary and an inefficient use of attorney time, and it should not have
taken as long to prepare as claimed. A severe reduction in the time allowed for this task
was justified.
D. Motion to Stay and Second CMC Statement
1. Background
The fourth category of tasks covered the period of April 29, 2020, through
May 12, 2020. During this time, NCRA and two sets of codefendants worked on
preparing a joint motion to stay the trial court proceedings while their appeals were
pending. The motion was filed on May 12, 2020, and it contained 11 pages of
substantive text (excluding the notice page).
Attorney Volker billed 3.1 hours for reviewing and editing drafts of the motion,
plus 1.3 hours in block billed time for e-mailing codefendants’ counsel regarding the
same. Attorney Krieg billed 0.3 hours for reviewing “correspondence regarding” the
drafts of, and edits to, the motion. In total, 4.7 attorney hours were billed regarding the
motion to stay.
On April 29, 2020, Volker billed 1.3 hours for preparing a CMC statement.
Attorney Krieg billed 0.2 paralegal hours to finalize and file the CMC statement. Krieg
also billed 0.2 attorney hours to “[r]eview Case Management Statements.”
The trial court ruled as follows:
“NCRA claims to have spent 6.4 hours on preparing a joint motion to stay
the court proceedings while their appeal of the court’s order finding their
Answers to be untimely was pending, as well as preparing a case
management conference statement. [Citation.] Mr. Volker spent 0.5 hours
on this task, and Ms. Krieg spent 5.7 hours. Ms. Krieg also spent another
0.2 hours on paralegal tasks during this time. [Citation.] However, since
the motion to stay was brought jointly with the other defendants and they
presumably shared the work, and since the case management conference
22.
statement was virtually identical to prior statements filed by NCRA, the
court intends to reduce the hours spent on this task to only three hours of
attorney time billed at the associate’s rate. The court will also allow the 0.2
hours of paralegal time.”
2. Analysis
The trial court misstated the attorney hours billed by Volker and Krieg. It was
Volker who billed 5.7 hours and Krieg who billed 0.5 hours, not the other way around.
However, since it viewed the work as warranting only three hours of associate time, the
misstatement does not suggest reversible error. The record indicates the lawyers for
codefendants California Water Impact Network et al. did the bulk of the motion work and
were separately awarded 18 hours of attorney time for their efforts. NCRA’s attorneys
evidently failed to carry their burden below of showing the necessity and/or efficiency of
spending nearly five hours of attorney time to review and edit the work of other defense
counsel. NCRA likewise fails to affirmatively demonstrate reversible error on appeal.
Regarding the CMC statement, NCRA contends “this was the first [CMC
statement] that NCRA filed in this case” and could not have been “‘virtually identical’”
to a previous version. However, NCRA’s Appellant’s Appendix at page 2622 shows
NCRA filed a CMC statement on February 13, 2020. Therefore, the 1.5 hours billed by
Volker and Krieg on April 29, 2020, could not have been in relation to “the first … filed
in this case.” Furthermore, we are unable to locate the April 2020 CMC statement in the
record and thus cannot determine whether it was or was not, as stated by the trial court,
“virtually identical” to the previous one. NCRA has therefore failed to meet its appellate
burden on this issue as well.
E. Reply Brief re: Joint Motion to Stay; Further Appellate Work;
Opposition to Westlands’ First Renewed Validation Motion
1. Background
NCRA claimed a total of 33.3 attorney hours and 10.2 paralegal hours for work
performed between May 13, 2020, and August 20, 2020. Attorney Volker billed 20.5 of
23.
those hours, which included work on a reply brief in support of the joint motion to stay;
work on an opposition to a motion by Westlands to dismiss NCRA’s appeal; and drafting
an opposition to Westlands’ “Renewed Motion for Validation of Contract.” Westlands’
“renewed” motion was filed on July 27, 2020.
When Westlands’ July 2020 renewed motion was filed, the only parties then
recognized by the trial court as proper defendants in the action were the separately
represented Central Delta Water Agency and South Delta Water Agency (collectively,
CDWA). CDWA filed an opposition brief on August 10, 2020. Soon afterward, the trial
court granted the joint motion to stay. Westlands’ (first) renewed motion was never ruled
upon; it was essentially abandoned and superseded by the filing of a second renewed
motion in September 2021. The sequence of events is discussed in Westlands Water Dist.
v. All Persons Interested, supra, 95 Cal.App.5th at page 120.
The trial court was initially unwilling to allow the hours claimed by attorney
Volker in connection with CDWA’s opposition to Westlands’ first renewed motion.
However, during the hearing on NCRA’s fees motion and in other written submissions,
Volker claimed CDWA’s opposition brief was ghostwritten by him. The CDWA
defendants did not seek attorney fees, and the trial court ultimately awarded all time
claimed by NCRA for the fifth category.
2. Analysis
Because the trial court awarded all attorney and paralegal hours requested by
NCRA for this category, there are no related claims to analyze. We note NCRA and its
attorneys received full compensation for 11.1 hours billed by attorney Volker for writing
CDWA’s opposition to Westlands’ first renewed validation motion. It will be important
to remember this fact when we discuss the tenth category of tasks, post.
24.
F. Appellate Work (“8/21/20 – 10/13/20”)
1. Background
The sixth category pertained to NCRA’s opening brief and Appellants’ Appendix
in Westlands Water Dist. v. North Coast Rivers Alliance, supra, F081174 (hereafter
F081174). NCRA’s opening brief (AOB) contained 27 pages of substantive text. The
appendix consisted of 11 items comprising roughly 162 pages, including a 25-page
register of actions from the trial court.
Attorney Volker billed 19.3 hours for writing the AOB. His time was documented
in seven block billed entries that said, “Draft Appellants’ Opening Brief,” and an eighth
entry, “Edit Appellants’ Opening Brief.” Attorney Krieg billed four hours for similar
tasks, e.g., “Review files and draft Appellants’ Opening Brief … 1.5 [hours]” and “Draft
Appellants’ Opening Brief … 1.7 [hours].” Krieg also billed 1.4 paralegal hours to
finalize and file the AOB.
The trial court found the billing excessive. It awarded 15 total attorney hours,
allowing 11 hours at Volker’s rate (a reduction of 8.3 hours) and four hours at Krieg’s
rate. One hour of paralegal time was allowed (a reduction of 0.4 hours).
2. Analysis
“When we are reviewing an award of attorney fees for appellate work, we need
not accord the same degree of deference we would give to rulings that involve the trial
court’s firsthand knowledge.” (Center for Biological Diversity v. County of San
Bernardino, supra, 188 Cal.App.4th at p. 616.) This does not mean the appellate court
can or should completely disregard the trial court’s assessment and decide the issue de
novo. It means “we may exercise ‘“somewhat more latitude in determining whether there
has been an abuse of discretion than would be true in the usual case.”’” (Ibid.)
We note the 27-page AOB, filed September 17, 2020, contains approximately
eight pages of text copied and pasted, with very few edits or additions, from NCRA’s
opposition to Westlands’ original validation motion, which NCRA had filed in the trial
25.
court eight months earlier. The copied sections of the earlier work product are at pages
716 through 721 of the Appellants’ Appendix in the current record on appeal. As for the
remaining 19 pages (estimated) of new content, we observe that significant portions of
the briefing contain large block quotes of statutory text and various rules of court.
Attorney Volker’s generic billing descriptions, e.g., “Draft Appellants’ Opening Brief,”
preclude further analysis of whether the 8.3 attorney hours disallowed by the trial court
were necessary and efficiently spent. For these reasons, we cannot say the trial court’s
decision was “‘clearly wrong.’” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p.
1095.)
G. Further Appellate Work (“10/14/20 – 11/4/20”)
1. Background
The seventh category of tasks involved reviewing Westlands’ respondent’s brief in
F081174, preparing NCRA’s reply brief, and opposing Westlands’ motion to augment the
appellate record. Attorney Volker billed 4.4 hours for “Email with co-counsel re
Appellants’ Reply Brief and review Westlands’ Respondent’s Brief.” Volker also block
billed 17.6 hours across four other time entries for the combined tasks of unspecified
legal research, e-mails with other defense counsel, and drafting/editing NCRA’s reply
brief.
Attorney Krieg billed 3.9 hours for the combined tasks of performing legal
research and drafting an opposition to Westlands’ motion to augment. Krieg separately
billed 6.2 hours to “[p]erform legal research and draft memo to Mr. Volker regarding the
same in support of Appellants’ Reply Brief.” There was an additional billing entry of 1.3
hours for unspecified research, and 3.8 paralegal hours block billed for the combined
tasks of finalizing and filing NCRA’s reply brief and opposition to the motion to
augment.
The trial court ruled as follows:
26.
“NCRA also claims to have incurred 37.2 hours on reviewing Westlands’
respondent’s brief on appeal, opposing Westlands’ motion to augment the
record, and preparing the reply brief. NCRA incurred 33.4 hours of
attorney time (11.4 hours by Ms. Krieg and 22 hours by Mr. Volker), plus
3.8 hours of paralegal time. [Citation.] This amount of time appears to be
excessive. The court will award 15 hours of attorney time for these tasks,
with five hours to Ms. Krieg and ten hours to Mr. Volker, plus two hours of
paralegal time.”
2. Analysis
NCRA’s reply brief in F081174 contained approximately 29 pages of substantive
text. However, large portions of the reply brief at pages 22 through 25 were simply
copied and pasted (with minimal edits or changes) from the previously filed AOB,
specifically pages 25 through 28. Portions of the reply brief at pages 28 and 30–32 were
similarly copied from the AOB at pages 28 and 30–31.
Furthermore, due to vague time entries, the nature of counsel’s legal research is
entirely unclear. Likewise with regard to the amount of time spent researching, as
opposed to writing, the reply brief. The main issue in F081174 was whether, for
purposes of meeting a filing deadline, the date of a trial court’s receipt of an
electronically submitted pleading constitutes the filing date of the pleading. There was
very limited authority on the issue, both in terms of case law and applicable statutes and
rules of court. It is thus unclear and difficult to reasonably infer what, exactly, NCRA’s
counsel spent so much time researching at the reply brief stage. A second issue
concerning appellate jurisdiction was also addressed in the reply brief, but NCRA had
already filed a separate opposition to Westlands’ motion to dismiss.
Westlands’ motion to augment the record contained less than a page of substantive
text and was cited only for procedural background in the respondents’ brief. NCRA’s
two-page opposition, for which attorney Krieg billed 3.9 attorney hours and additional
paralegal time, was unsuccessful and frankly, in this court’s view, unnecessary. NCRA
fails to demonstrate reversible error as to the eighth category of work.
27.
H. Further Appellate and Postappeal Work (“12/30/20 – 5/25/21”)
1. Background
Oral argument in F081174 was held on the afternoon of February 24, 2021.
Attorney Krieg billed 0.3 attorney hours and 0.3 paralegal hours to fill out and return the
oral argument questionnaire. On February 22, 2021, Krieg billed 1.5 hours for assisting
attorney Volker with general preparation for the argument. The next day Krieg billed 1.1
hours for “legal research” and corresponding with Volker about the upcoming argument.
On the day of oral argument, Krieg billed another 3.7 hours for further unspecified “legal
research.”
Attorney Volker billed 29.8 hours for his oral argument preparation and court
appearance. This included a block billed time entry of 6.8 hours on the day of argument:
“Prepare for and participate in oral argument on appeal, and emails with co-counsel.”
Next, on March 9, 2021, Volker billed 1.2 hours to “[r]eview Court of Appeal Ruling,”
i.e., the 13-page unpublished opinion in F081174. Attorney Krieg also billed for
reviewing the opinion, but it only took her 0.3 hours.
Between March 12 and March 25, 2021, Volker billed 3.5 hours to prepare for and
attend a CMC. Attorney Krieg billed 0.9 attorney hours and 0.4 paralegal hours in
connection with the same CMC. Volker also billed 0.3 hours for client e-mails.
The trial court found the billing excessive. It allowed only four hours of attorney
time: three hours at Volker’s rate and one hour for Krieg. An additional 30 minutes was
allowed for paralegal time.
2. Analysis
The oral argument in F081174 was approximately 45 minutes in duration.
Attorney Volker’s opening argument lasted approximately 15 minutes, and most of the
time was spent reading directly from prepared remarks. Much of the prepared material
was clearly taken from NCRA’s AOB and reply brief. For example, Volker spent the
28.
first three minutes reciting, verbatim, the introduction section of the AOB. Volker’s
rebuttal argument lasted approximately eight minutes.
NCRA insinuates some of the research in preparation for the F081174 oral
argument concerned a supplemental authority letter filed by Westlands a few days before
the argument. That letter, filed in accordance with rule 8.254 of the California Rules of
Court, merely noted the statute at issue (Code. Civ. Proc., § 1010.6) had been amended
the previous month. NCRA also claims its attorneys’ extensive oral argument
preparation was necessary to work through the complex issues and refute the positions
taken by Westlands. The argument is not persuasive because that is presumably what
counsel had already billed for during the preliminary and brief-writing stages of the
appeal.
Due to the vague billing entries, the time spent on research was not clearly
justified. Oral argument is not the time or place for new legal arguments, so the need for
so much late-stage research is not apparent (e.g., 3.7 hours of research on the day of
argument). (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The
Rutter Group 2023) ¶ 10:22, p. 10-5.) We also agree with the trial court as to the
seemingly excessive and inefficient amount of preparation time. It does not take hours of
preparation to simply read from the briefs. (See id., ¶ 10:22 [“oral argument should not
be used to repeat the facts and arguments set forth in the briefs; indeed, most courts
expressly disfavor such approach”].) Billing 1.4 hours to review the 13-page opinion in
F081174 seems excessive as well. We defer to the trial court on the CMC work.
Here again, NCRA does not meet its appellate burden to demonstrate grounds for
reversal. The trial court was perhaps harsher in its reductions than this court might have
been, but it was not clearly wrong. As with the third category, discussed ante, any doubts
would be resolved by the trial court’s additional award of $3,884.78 beyond what is
reflected in its category-by-category explanations.
29.
I. Mandatory Settlement Conference
The ninth category of work covered the period of June 4, 2021, through July 22,
2021. Attorney Volker billed 4.8 hours for “post-remand activities” including
preparation of a mandatory settlement conference (MSC) statement. Attorney Krieg
billed 3.9 attorney hours and 1.1 paralegal hours for similar MSC-related tasks.
The trial court allowed five attorney hours: three at Volker’s rate and two at
Krieg’s rate. One hour of paralegal time was allowed. NCRA does not challenge these
reductions in its briefing. Any related claims have been forfeited. (Swain v. LaserAway
Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72.)
J. Everything Else
1. Background
NCRA’s fees motion claimed approximately 75 attorney hours and six paralegal
hours for all work performed between September 1, 2021, and April 4, 2022. The claim
was broken down into four smaller categories for work on NCRA’s “Opening Trial
Brief” (the actual filing was labeled “Opening Merits Brief”); “Reply Trial Brief”
(originally filed as “Reply Merits Brief”); “Preparation for and Participation in Merits
Hearing”; and “Post-Merits Hearing Preparation of Judgment and Writ.” The “writ”
reference was never explained and appears to have been a drafting error by NCRA’s
counsel. The trial court’s ruling addressed everything in one final category of tasks.
Attorney Volker billed 72.1 hours during the subject time period. Attorney Krieg
billed 2.7 attorney hours and 6.2 paralegal hours. NCRA’s motion papers alleged Krieg’s
attorney and paralegal hours were 1.5 and 7.4, respectively, but NCRA evidently mixed
up Krieg’s billing of 1.2 hours on September 17, 2021, which she in fact documented as
paralegal time.
Most relevant is Volker’s billing of 40.9 hours to write the Opening Merits Brief.
The work was documented in seven different time entries, each stating, “Prepare Opening
Merits Brief.” An eighth entry said, “Proofread Opening Merits Brief.”
30.
Attorney Volker subsequently billed 3.7 hours to review Westlands’ “Merits
Brief,” referring to its second renewed validation motion. Volker then billed 3.7 hours
for unspecified legal research for NCRA’s reply, and 12.9 hours to write the reply. The
latter work was documented in seven billing entries described only in terms of drafting,
editing, and proofreading “NCRA Reply Brief.”
Westlands challenged the reliability of the billing records, pointing out that “large
sections of [the] work product”—specifically as to NCRA’s Opening Merits Brief—were
“copied and pasted from previous filings.” In a supporting declaration, Westlands’
counsel explained the process she and her staff used to detect the cut-and-paste job and
attached documentation to illustrate it. As we will discuss, there was even more copying
than Westlands realized.
The trial court ruled as follows (original paragraph split for readability):
“Finally, NCRA seeks 45.6 hours for preparing their opening trial brief
(40.9 hours by Mr. Volker with 4.7 hours of paralegal work), 23.0 hours for
preparing the reply brief (20.3 hours by Mr. Volker and 2.7 hours of
paralegal work), and 6.4 hours to prepare for and appear at the merits
hearing (0.7 hours by Ms. Krieg and 5.7 hours by Mr. Volker), plus another
6.0 hours on preparing the judgment, communicating with counsel, and
participating in status conferences (0.8 hours by Ms. Krieg and 5.2 hours by
Mr. Volker). Thus, NCRA claims to have incurred a total of 81 hours for
all of these tasks.
“[B]ut the court finds that a more reasonable number is 18 hours of attorney
time, with one hour by Ms. Krieg and 17 hours by Mr. Volker, plus two
hours of paralegal time.”
2. Analysis
“Where, as here, the trial court severely curtails the number of compensable hours
in a fee award, we presume the court concluded the fee request was padded.” (Christian
Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1325.) The trial court may have
held back on its explanation in order to save NCRA’s counsel from embarrassment. By
pressing the issue on appeal, NCRA forces this court to be more explicit.
31.
NCRA’s “Opening Merits Brief” contains 25 pages of substantive text. The
substantive material is located in the Appellants’ Appendix (AA) of the current appellate
record at pages 3025 through 3049. Because of the caption page and tables, the brief
begins on page 8. The content at page 8, line 25 (AA 3025:25) through page 13, line 15
(AA 3030:15), including a lengthy footnote on page 10 (AA 3027), is mostly identical to
and obviously copied from NCRA’s prior opposition to Westlands’ original validation
motion (AA 716-721) and/or NCRA’s AOB in F081174 at pages 9 through 16.
In short, the vast majority of the first six pages of NCRA’s “Opening Merits
Brief” (numbered as pp. 8–13) are copied from previously filed documents. The next
four pages (numbered as pp. 14–17) appear to be newly created work product. But the
copying resumes on page 18 (AA 3035) and continues through page 24 (AA 3041). This
second chunk of copied material was clearly taken from CDWA’s opposition to
Westlands’ first renewed validation motion (AA 2859:17 – AA 2866:23). As previously
explained, attorney Volker took credit for writing the CDWA brief and was awarded 11.1
hours for the earlier work.
The portion of NCRA’s “Opening Merits Brief” that was copied from the earlier
CDWA brief ends at page 24, line 14 (AA 3041:14). The rest of page 24 appears to be
new work product. However, the cut-and-paste resumes on the very next page (p. 25)
(AA 3042) and continues through the end of the brief (p. 32) (AA 3049). This third
chunk of copied material is again taken from NCRA’s earlier filed opposition to
Westlands’ first validation motion (AA 722:24 – AA 730:25).
In summary, approximately 19 of the 25 pages in NCRA’s “Opening Merits Brief”
were cut and pasted from prior submissions. Put differently, roughly 75 percent of the
brief was copied from previously filed documents. Yet attorney Volker billed 40.9 hours
for drafting and editing the brief. The math works out to nearly seven hours billed for
each page of fresh material, and that is before Krieg spent 1.2 hours of attorney time and
3.5 paralegal hours finalizing the document. Even describing it in these terms does not
32.
adequately convey the paucity of unrecycled text in the document. There are minor edits
and additions to some of the copied work, but the operative word is minor.
There is nothing wrong with reusing or repurposing one’s own work product, but
it takes far less time and skill to copy and paste old material than it does to create new
content. As such, the trial court was within its discretion to disallow much of the time
billed for NCRA’s “Opening Merits Brief.” The cumulative effect of what it viewed as
excessive billing throughout the case would rationally explain the further reductions of
time in the tenth category. “An attorney’s chief asset in submitting a fee request is his or
her credibility, and where vague, block-billed time entries inflated with noncompensable
hours destroy an attorney’s credibility with the trial court, we have no power on appeal to
restore it.” (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at pp. 1325–
1326.)
DISPOSITION
The amount of the trial court’s fee award is affirmed. Westlands shall recover its
costs on appeal.
PEÑA, Acting P. J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
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