Filed 2/28/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
VERONICA GONZALEZ, H041997
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 1-11-CV204141)
v.
SANTA CLARA COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Defendant and Respondent.
Plaintiff Victoria Gonzalez challenged an administrative order declaring that she
should be reported to the statewide child abuse index for what was deemed excessive
discipline of her 12-year old daughter. After she successfully appealed to this court from
the trial court’s denial of relief, she sought an award of approximately $60,000 in
attorney fees incurred to four separate law practices. The trial court found her eligible for
fees but awarded only $7,500, denying her claim in its entirety as to all but her current
counsel. It found the evidence in support of two other claims technically deficient,
although no evidentiary objection had ever been asserted against them. It denied the third
claim on the basis of objections that were only raised when the court permitted the
opposing party to file a third opposition memorandum on the ground—which is not borne
out by the record—that plaintiff had violated a previous order for supplemental briefing.
These rulings may have grown out of an understandable frustration with counsel for
plaintiff, whose several failings included the belated assertion of arguments and the
devotion of considerably more attention to unsound technicalities than to making a
bulletproof showing on the merits. Nonetheless we conclude that under the peculiar
circumstances of this case, the court’s complete denial of relief as to three of plaintiff’s
four attorneys exceeded the bounds of sound discretion. We will therefore remand for
reconsideration of the fee request with respect to the other three attorneys.
BACKGROUND
As we detailed in the underlying appeal (Gonzalez v. Santa Clara County
Department of Social Services (2014) 223 Cal.App.4th 72 (Gonzalez I)), plaintiff was
reported for child abuse based upon having spanked her daughter with a wooden spoon.
Defendant Santa Clara County Department of Social Services (Department) concluded
that the report was “substantiated,” and submitted it to the state Department of Justice for
inclusion in the child abuse index (see Pen. Code, §§ 11164-11174.3). Plaintiff brought
an administrative appeal, which was unsuccessful. She then filed a petition for
administrative mandamus, which the superior court denied. She appealed to this court,
contending that neither the Department nor the trial court had given sufficient weight to
the legislatively declared right of a parent to impose reasonable discipline on his or her
child. We sustained this contention, further holding that the hearing officer had abused
his discretion by refusing to permit the daughter to testify in support of her mother, even
though the daughter was reportedly eager to do so and had submitted a written
declaration contradicting the Department’s witnesses on key points. (Gonzalez I, supra,
223 Cal.App.4th at pp. 95, 99.) We reversed the judgment of the superior court with
directions to order the Department to either conduct a new hearing or set aside its finding
that the report was “substantiated” and to inform the Department of Justice that the report
was “unfounded.” (Id. at p. 102.) Our remittitur directed that plaintiff recover her costs.
On May 27, 2014, plaintiff moved in the superior court for an award of attorney
fees as well as costs. She invoked three separate statutory grounds for such an award (see
pt. I, post). The motion asserted that she had incurred fees to four law practices: $16,000
2
to the Chastain Law Group (Chastain) for administrative proceedings; $15,000 to Jeremy
Brehmer to challenge the administrative order in the superior court; $25,262.40 to Seth
Gorman, to prosecute the prior appeal in this court; and $7,500 to Diane Weissburg for
services following the remand from this court. The motion was supported by
Weissburg’s declaration with certain attachments (see pt. IV, post).
The Department filed written opposition, contending that plaintiff was not entitled
to attorney fees on any of the grounds asserted by her and that she had failed to
adequately substantiate some of the fees claimed. Plaintiff objected to the opposition and
moved to strike it on the ground that it had not been served in compliance with a
stipulated order setting a briefing schedule. (See pt. II, post.)
For reasons not clearly reflected in the record, but which plaintiff ascribes to two
successive recusals by assigned judges, the matter was not heard until October 7, 2014.
On that date Weissburg filed an amended memorandum of costs seeking a total of
$64,199.40, the increase apparently consisting of an additional six hours of her own time,
plus “travel costs of $1080.00,” “hearing by phone of $85.00,” and correction of a
clerical error in the original memorandum. In a supporting declaration she stated that
two-thirds of the travel costs represented expenditures on trips to San Jose from Los
Angeles, where she lived, to attend hearings which did not take place because of
“multiple judicial officers waiting until the day before each prior hearing to recuse
themselves, and the court continuing to reassign the case and postpone the hearing at the
last minute.”
At the hearing, the court acknowledged counsel’s objection to the Department’s
opposition (see pt. II, post), but stated that it had “decided to consider the papers.” The
court also rejected plaintiff’s contention that some of the Department’s assertions were
barred by res judicata or collateral estoppel. Weissburg then argued the merits of her
client’s entitlement to fees. Counsel for the Department asserted that Weissburg was
3
citing several cases for the first time. Noting an “apparent[] . . . disagreement as to
whether some” of plaintiff’s citations were “new to this record,” the court suggested “that
the respondent have an opportunity to address those, and the petitioner have a final
briefing, and then the matter would be submitted on those papers.”
The Department submitted a supplemental brief on October 21, 2014. It began by
stating that the court had limited briefing to “the applicability of th[e] additional cases”
cited by Weissburg at the hearing. It argued that those cases were inapposite and did not
affect the outcome. Then, in seeming violation of the limitation it had just noted, it went
on to challenge some of the cost items newly claimed in plaintiff’s amended cost bill.
Among other points, it objected to plaintiff’s attempt to recover for travel to appear at
hearings that had been continued. The Department contended that counsel could have
avoided those trips by taking advantage of the court’s tentative ruling system.
Attorney Weissburg filed a responsive supplemental brief. Addressing the
Department’s objection to the claim for travel expenses, Weissburg asserted that the first
judge to whom the fee motion was assigned had recused herself “[l]ate in the afternoon
the day before the hearing,” and the judge to whom it was next assigned had done the
same thing. On both occasions, she asserted, she had flown into Oakland on the day
before the hearing “to ensure arrival, and morning fog concerns, resulting in flight
delays.”
The trial court, possibly acting on an ex parte application,1 issued an order stating
that Weissburg had “violat[ed]” the order for supplemental briefing by addressing issues
beyond those mentioned in the Department’s supplemental brief. As a result, the order
stated, the Department would be permitted to file yet another supplemental brief on or
before December 12, 2014. On December 19, the Department filed its third
1
Plaintiff’s counsel asserts that the order was made on the Department’s ex parte
motion, but we see no record evidence of this.
4
memorandum in opposition to the fee motion. About half of this memorandum addressed
arguments raised in plaintiff’s supplemental memorandum. The other half was devoted
to supposed deficiencies in plaintiff’s original showing in support of a fee award. Most
notably, the Department now contended—apparently for the first time—that the fees
claimed for Seth Gorman’s successful prosecution of the original appeal were
inadequately documented in that “[t]here is no description of the services rendered or
contemporaneous time records for these services.” It also reiterated its original objection
to the showings concerning attorneys Chastain and Brehmer, as well as its previous
objection to the claimed travel expenses.
On December 29, 2014, the court issued an order granting the fee motion, but only
as to the fees incurred for Weissburg’s services. The court concluded that plaintiff was
entitled to fees under Code of Civil Procedure section 1021.5, but not under two other
statutes invoked by her. (See pt. I, post.) Respecting the amount of fees, the court
identified certain evidentiary deficiencies in plaintiff’s showing, most notably the failure
to authenticate the billing statements from previous counsel and the absence of any
“information to support the stated billing rate(s).” The court concluded that 30 hours was
a reasonable time for Weissburg to have spent on the motion for fees and allowed $7,500
in fees, at Weissburg’s stated $250-per-hour rate, plus $1,504.50 in trial and appellate
costs.
Plaintiff, through Weissburg, filed this timely appeal.
DISCUSSION
I. Eligibility for Fees
The only real issue presented by this appeal is whether the trial court properly
refused to award any fees for the services of the three attorneys preceding
Ms. Weissburg. However plaintiff raises several other issues, which we will briefly
address.
5
Plaintiff originally sought a fee award under three statutes: Code of Civil
Procedure section 1021.5, which allows attorney fees to the successful party in an action
that “has resulted in the enforcement of an important right affecting the public interest”;
Welfare and Institutions Code section 10962, which allows fees to a recipient or applicant
for public services who successfully seeks judicial review of a decision by the state
Director of Social Services affecting entitlement to such services; and Government Code
section 800, which allows fees to a litigant who secures a reversal of an administrative
ruling by establishing that the ruling was the result of arbitrary or capricious action. The
trial court found plaintiff eligible for an award under Code of Civil Procedure section
1021.5, but not under the other two statutes. Plaintiff continues to insist that she was
entitled to fees under all three statutes. The point is academic. Defendant does not
challenge the court’s finding of eligibility under Code of Civil Procedure section 1021.5.
To do so effectively, it would at least arguably have had to take a cross-appeal from the
award granting fees as to attorney Weissburg. This it has not done. Nor has plaintiff
attempted to show that eligibility under the other statutes would improve the result for
her. We therefore decline to render what would be a purely advisory opinion concerning
her eligibility on other grounds.
II. “Late” Opposition
Weissburg objected to the Department’s original opposition, and asked the court to
strike it, on the ground that it was untimely. The trial court in effect overruled the
objection, stating that it would consider the opposition. On appeal plaintiff insists that
this was error. The point has no merit. The key premise of plaintiff’s argument is that
under a briefing schedule adopted by stipulated order, the Department should have served
its opposition, before a specified time and date, by e-mail. But the order did not, by its
terms, require service by that method. It sated only that “[s]ervice may occur by email[.]”
(Italics added.) If counsel wished to ensure that service was made by that method, she
6
should have insisted upon mandatory wording. If she contends that both counsel
intended the clause in question to be mandatory—notwithstanding the permissive
language—she should have presented evidence to that effect. On its face, the order
meant only that the Department was allowed, but not required, to use that method of
service.
Further, even if the service had been untimely, the trial court was vested with
discretion to overlook the defect. (See Cal. Rules of Court, rule 3.1300(d); Bozzi v.
Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) It clearly exercised that discretion in
favor of resolving the matter on the merits, stating, “I decided to consider the papers.”
Plaintiff makes no attempt to show that this was an abuse of discretion. She simply
recapitulates the showing she made in the trial court and offers it as a ground of reversal
on appeal. No error appears in the trial court’s treatment of this issue.
Finally, we note that no cognizable prejudice was shown to arise from the
Department’s failure to serve the opposition by e-mail and that any arguable prejudice
was cured when the court permitted plaintiff to file a supplemental brief. This provided
an ample opportunity—which plaintiff took—to address any issues raised by the
Department to which she might otherwise feel she had received inadequate opportunity to
reply. Regrettably, the court then penalized her doing so in the belief, which is not borne
out by the record, that it had limited the scope of her supplemental brief to the cases she
cited at the hearing. The fact remains that the court’s consideration of the Department’s
original opposition papers has not been shown to constitute prejudicial error.
III. Transfer to Another County
Plaintiff asserts that the trial court “should have transferred the case to another
county due to multiple last minute recusals.” We see no indication that she ever sought
such an order. Nor does she offer authority or argument for the implicit proposition that
a trial court may be obligated to grant a change of venue on its own motion when more
7
than one of its members recuse themselves with respect to a particular case. It may be
that the mode of proceeding here, as described by counsel, produced some arguably
unseemly delays and may have placed some unfortunate burdens on her. However,
plaintiff offered no competent evidence of any of these matters. In any event, we are not
prepared to adopt plaintiff’s argument that the court should have done something it was
never asked to do. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400, pp. 458-
459.)
IV. Amount of Fees
A. Introduction
The trial court found that none of plaintiff’s claimed fees were adequately
substantiated except for those incurred for the services of her current attorney,
Ms. Weissburg. There is no doubt that plaintiff’s claims for the services of two previous
attorneys rested on objectionable evidence, and that the showing as to the third was less
than ideal. It does not follow, however, that the court properly refused to grant any relief
on account of the earlier services.
“The ‘burden is on the party seeking attorney fees to prove that the fees it seeks
are reasonable. [Citation.] It is also [the appellant’s] burden on appeal to prove that the
court abused its discretion in awarding fees.’ [Citation.] ‘ “Under the abuse of discretion
standard, ‘a trial court’s ruling will not be disturbed, and reversal of the judgment is not
required, unless the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” ’[2]
[Citation.] ‘ “The abuse of discretion standard is ‘deferential,’ but it ‘is not empty.’
[Citation.] ‘[I]t asks in substance whether the ruling in question “falls outside the bounds
2
The last-quoted statement, as suggested by the tension between it and the
statements immediately following, arguably exaggerates the degree of deference actually
reflected in decisions where an abuse of discretion has been found.
8
of reason” under the applicable law and the relevant facts [citations].’ [Citation.]’ ”
[Citation.] 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 first-hand knowledge. [Citation.] Further, when, as here, the fee order under
review was rendered by a judge other than the trial judge, we may exercise ‘somewhat
more latitude in determining whether there has been an abuse of discretion than would be
true in the usual case.’ [Citation.]” (Center For Biological Diversity v. County of San
Bernardino (2010) 188 Cal.App.4th 603, 615-616, fn. omitted.)
Here we are reviewing an award for services some of which were rendered in this
court and none of which were rendered before the judge who made the fee order. This
gives us “ ‘somewhat more latitude’ ” (Center For Biological Diversity v. County of San
Bernardino, supra, 188 Cal.App.4th at p. 616) than we would otherwise be entitled to
exercise in reviewing the fee award.
B. Gorman
We find the complete denial of relief most troubling with respect to the services
rendered by Attorney Gorman, who successfully prosecuted the prior appeal. In support
of an award Weissburg declared, “Attorney Seth Gorman represented Plaintiff in the
Appellate Court, and Respondents’ Petition for Review, which was denied. He billed
$25,262.40 for these services as costs and fees. Exhibit 5 attached hereto and
incorporated herein by reference.” The attached exhibit consisted of a “memorandum of
costs on appeal” signed by Gorman under penalty of perjury and claiming $23,980 in fees
and $1,282.40 in other costs on appeal. (Capitalization omitted.) Attached to it was a
declaration by Gorman, also under penalty of perjury, itemizing costs and fees “incurred
in connection with [these] proceedings.” Gorman declared, “To the best of my
knowledge, the items of cost are correct and were necessarily incurred in this case on
appeal.” Under a paragraph entitled “Attorneys’ fees,” Gorman asserted that he had
9
billed 101.4 hours in connection with the appeal, plus 16 hours in the Supreme Court
proceedings and 5.5 hours in connection with the remittitur and costs award, for a total of
122.9 hours, of which three hours were “not claimed on fees motion.”
In its original opposition to the fee motion, the Department aimed no specific
objection at the Gorman claim. So far as the record shows, the Department voiced no
separate objection to the Gorman fees until it filed its third memorandum in opposition to
fees—a memorandum to which plaintiff had no opportunity to respond. There it
provided a table summarizing the various elements of plaintiff’s fee claim, the “proof”
offered in support of each, and the Department’s “objection” to that element. With
respect to the Gorman fees, the Department asserted for the first time that there was an
insufficient evidentiary basis for an award: “Mr. Gorman’s ‘billing’ is an attachment to
Petitioner’s Memorandum of Costs on Appeal. There is no description of the services
rendered or contemporaneous time records for those services. This was part of the
rationale adopted by the court in denying Gorman’s fees in their entirety: “Mr. Gorman
has provided only the total number of hours worked but no information at all about the
services provided; he provides his billing rate but no information about his qualifications
or experience to support this rate. Petitioner has failed to establish the reasonableness of
the fees requested for services performed by Mr. Gorman.”
It is true that, as with the two earlier attorneys (discussed below), Weissburg’s
showing in support of the Gorman claim was far from compelling. While the
deficiencies with the earlier representations might conceivably be attributable to some
difficulty in securing their cooperation, we seriously doubt that Weissburg faced any such
difficulty with respect to Mr. Gorman. The record suggests no impediment to securing a
declaration from him justifying his fees. Customarily this is done by presenting time
records and a showing of the attorney’s qualifications as well as an explanation for any
time expenditures that on their face appear excessive.
10
Despite the absence of these details, however, we do not believe the court
exercised sound discretion in denying the Gorman claim in its entirety. This court was
the forum in which Gorman performed the lion’s share of his services and we are at least
as well situated as the trial court to determine their reasonable value. (See Center For
Biological Diversity v. County of San Bernardino, supra, 188 Cal.App.4th at p. 616; cf.
Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579, italics added [“ ‘The “
‘experienced trial judge is the best judge of the value of professional services rendered in
his court’ ” ’ ”].) As the trial court recognized, Gorman’s representation produced a
published decision that clarified the law concerning the scope of parental disciplinary
prerogatives under California law. His briefs—totaling over 110 pages—ably argued
points which this court ultimately sustained. The failure to explicitly justify his hourly
rate might permit a reduction in the recovery, but could not on this record sustain a
complete denial of fees. Certainly the stated fee is not out of proportion to those we
would expect to see for comparable work of similar caliber. Accordingly, we will direct
the trial court to reconsider the Gorman claim along with the Chastain and Brehmer
claims.
C. Chastain
The fee requests for the two attorneys preceding Gorman are somewhat more
problematical. This is particularly true of the claim concerning Chastain, plaintiff’s first
attorney. Weissburg declared that the Chastain firm “billed $16,000.00 for costs and
fees.” She then referred the reader to attached exhibits entitled “Invoice #1” and
“Invoice #2.” These contain itemized billing entries with time worked, but they reflect
the expenditure of only 21.9 hours in the matter, plus $750 in costs described only as
“Geffner additional invoice.” They also reflect a billing rate of $250 per hour, and two
payments by plaintiff of $2,500 each. The total fees and costs thus reflected in the
exhibit were $6,225—$5,475 in billed time and $750 in vaguely described costs. This
11
fell well short of substantiating the $16,000 asserted by Weissburg. In its original
opposition, the Department challenged the Chastain claim on this ground and on the
further ground that plaintiff had criticized Chastain’s work in her writ petition.3
Accordingly, the Department concluded, “fees for the work of the Chastain Law Group
are appropriately limited to $5,475.” (Italics added.)
In its supplemental memorandum of October 21, 2014, the Department offered no
additional challenge to any of the items initially claimed in plaintiff’s original motion.
However, in the Department’s second supplemental memorandum—filed at the court’s
invitation based upon plaintiff’s supposedly “noncompliant” supplemental
memorandum—the Department included a table summarizing all of plaintiffs claims “[i]n
an effort to clarify the fees and costs sought, and those that may be recoverable under the
law, should the Court grant attorneys’ fees.” With respect to Chastain, the Department
again noted that while plaintiff claimed $16,000, her documentation contained only “two
billing statements with accrued fees totaling only $5,475.” The Department lodged no
evidentiary objection to the billing statements.
Although the Department had all but conceded the Chastain claim to the extent of
$5,475, the trial court rejected the claim in its entirety. The court wrote, “[T]he
3
Respondent requested, and the trial court granted, judicial notice of the clerk’s
transcript in Gonzalez I, which includes plaintiff’s petition. The cited portion of the
petition states, “A few days before the hearing, Petitioner’s counsel[,] [i.e., Chastain]
informed her that he would not represent her at the hearing, despite the fact that she had
paid him $7,000. Up to that point, Petitioner’s counsel had half-heartedly assisted in
writing only one declaration and hired a third party expert to review the social worker’s
decision to deem the report substantiated, but nothing more to prepare or even aid in
Petitioner’s own preparation of the case.”
More troubling to us than successor counsel’s characterization of his predecessor’s
work as “half-hearted” is the allegation that plaintiff had “paid” the latter “$7,000.” Even
assuming one or more lost invoices, this sum is still less than half of what Weissburg
asserted plaintiff had been billed by Chastain.
12
Weissburg Declaration attaches as Exhibit 3, but does not authenticate, documents
purporting to be two invoices from the [Chastain] law group. The person providing
services is identified only as ‘RLC’ and no information is provided to support the stated
billing rate. The amounts shown on the invoices for fees total $5,475, although Ms.
Weissburg asserts without foundation that ‘they [the Chastain Law Group] billed $16,000
for costs and fees.’ [Citation.] The discrepancy is not explained. The costs of $750 are
identified only as ‘Geffner additional invoice’, with no explanation of who or what
Geffner is or what was provided that cost $750. Petitioner has not provided sufficient
information for the court to make a determination of whether the services provided were
reasonable. (Ajaxo, Inc. v. E*Trade Group (2005) 135 [Cal.App.]4th 21, 65 [(Ajaxo)].)”
Insofar as the court relied on plaintiff’s failure to authenticate the Chastain billing
statements, the Department had forfeited any such objection by failing to raise it at an
appropriate time—or any time. It is a basic requirement of our adversary system that
objections to evidence be voiced in a timely fashion or they are lost. (See Evid. Code,
§ 353, subd. (a).) “[M]atter which is technically inadmissible under an exclusionary rule
is nonetheless evidence and may be considered in support of a judgment if it is offered
and received in evidence without proper objection or motion to strike.” (Cal. L. Rev.
Com. com., 29B Pt. 1A West’s Ann. Evid. Code (2011 ed.) foll. § 140, p. 27; see People
ex rel. Dept. of Public Works v. Alexander (1963) 212 Cal.App.2d 84, 98 [same]; Bank of
America v. Taliaferro (1956) 144 Cal.App.2d 578, 582 [objection to contract for lack of
foundation “would have been good” if made at trial, but failure to raise it when contract
was offered effected “a waiver of the objection and an admission of genuineness,
equivalent to proof thereof”]; Wegner et al., Cal. Prac. Guide: Civil Trials & Evidence
(The Rutter Group 2016) ¶ 8:3282, p. 8G-2 [“Evidence admitted without objection may
be considered for any purpose by the trier of fact and in support of the judgment.”].)
13
Trial courts possess some inherent power to exclude objectionable evidence on
their own motion, but “[i]t has been suggested that this power should be exercised only
where the evidence is irrelevant, unreliable, misleading, or prejudicial, and that relevant
and useful evidence that is merely incompetent under technical exclusionary rules ought
to be received in the absence of objection by counsel.” (3 Witkin, Cal. Evid. (5th ed.
2012) Presentation of Evidence at Trial, § 404, p. 560, italics added; cf. Fortner v. Bruhn
(1963) 217 Cal.App.2d 184, 190, italics added [trial judge “is under a duty to see that a
fair trial is accorded the parties on the merits which means excluding on his own motion
matters that tend only to prejudice the jurors and take them away from a consideration of
the case upon its merits”]; id. at p. 191, italics added [“It is the function of the court to see
that errors or extraneous matters are not brought into the case, which might have the
effect of clouding the issue or confusing the jury.”].)4 This is particularly true where the
court raises the objection (lack of authentication) after the hearing, thereby depriving the
proponent of any opportunity to contest or cure the objection. (See Bank of America v.
Taliaferro, supra, 144 Cal.App.2d at p. 582 [rationale for forfeiture of objections not
made “is that the proponent would have had opportunity to obviate the objection if it had
been made at the trial”].)
This is particularly true where, as here, the opponent treated the evidence as
entirely authentic and reliable. The Department voiced no reservations about the
Chastain invoices, but treated them as sufficient to establish fees incurred to the Chastain
4
One of the foremost authorities on the law of evidence reinforces this point
specifically in the context of writings for which an insufficient foundation has been laid:
“[M]any types of evidence such as reliable affidavits or copies of writings, albeit
technically inadmissible, are probative and trustworthy. In that case, absent an objection,
the trial judge would be unjustified in excluding the evidence. The judge should exercise
her discretionary power to intervene only when the evidence is irrelevant, unreliable,
misleading, or prejudicial as well as technically inadmissible.” (1 McCormick, Evidence
(7th ed. 2013) § 55, pp. 390-391.)
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firm in the amount stated, i.e., $5,475. The court could not fairly disregard them on
technical grounds without at least notifying plaintiff of its intention to do so.
The court next noted that the documents offered by plaintiff failed to substantiate
the assertion that she had paid $16,000 to Chastain. This is true, and no attempt was
made to cure the defect even after the point was raised in the Department’s original
opposition memorandum. But it does not follow that the Chastain claim could be denied
altogether. Indeed, the Department contested the contents of the actual invoices only
with respect to the $750 charge for the otherwise unexplained “Geffner invoice.” The
record supports a reasoned surmise that Geffner was an expert witness engaged by
Chastain to render some sort of opinion concerning the early administrative proceedings
in this case. But it is only a surmise, and in any event it would not establish that this
expense was reasonably and necessarily incurred. The court therefore acted well within
its discretion in disallowing the Chastain claim to this extent.
With respect to the remaining $5,475 on the Chastain invoices, however, the
Department all but conceded the reasonableness of the claim, stating, “fees for the work
of the Chastain Law Group are appropriately limited to $5,475.” The invoices indicate
that the firm spent 21.9 hours including the drafting of declarations and memoranda,
meetings and exchanges of correspondence with Department representatives, and
dealings with the expert witness. The statements specifically refer to drafting a
declaration for plaintiff’s daughter—presumably the same declaration we found highly
probative in establishing both that the evidence relied upon by the hearing officer was
controverted and that it was an abuse of discretion not to permit the daughter to testify, as
she was reportedly “very eager” to do. (See Gonzalez I, supra, 223 Cal.App.4th at p. 95.)
It is true that plaintiff faulted the firm for not representing her at the hearing on the
administrative appeal, but that does not mean that the fees for services rendered up to that
point were not reasonably and necessarily incurred. On remand the court should treat the
15
Chastain invoice as genuine and should reassess the reasonableness of the charges
represented therein in light of the description of services performed and such other
evidence as may be submitted.
The court also faulted the Chastain showing—and the showings as to the other two
predecessor firms—for failing to include any evidence of the attorneys’ qualifications or
the reasonableness of their hourly rates. Again, this failing did not justify a complete
denial of fees once the activities performed were adequately established, as we hold they
were at least to the extent of the $5,475 reflected in the invoices. The court is
undoubtedly familiar with the range of rates charged by local counsel, and in the absence
of further evidence on the point is more than empowered to determine a fee based upon
what it concludes counsel’s services were worth.
It must be borne in mind that the underlying purpose of a fee award under section
1021.5 is to encourage the enforcement of legal rights and duties imbued with a public
interest. (Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th
714, 736, quoting Children & Families Com. of Fresno County v. Brown (2014) 228
Cal.App.4th 45, 55 [“ ‘The doctrine’s purpose “is to encourage suits enforcing important
public policies by providing substantial attorney fees to successful litigants in such
cases.” ’ ”]; Bui v. Nguyen (2014) 230 Cal.App.4th 1357, 1365, quoting Woodland Hills
Residents Assn., Inc. v. City Council of Los Angeles (1979) 23 Cal.3d 917, 933 [“ ‘[T]he
fundamental objective of the private attorney general doctrine of attorney fees is “ ‘to
encourage suits effectuating a strong [public] policy by awarding substantial attorney’s
fees . . . to those who successfully bring such suits and thereby bring about benefits to a
broad class of citizens.’ ” ’ ”].) Here, as the court recognized, plaintiff succeeded in
enforcing an important right vested in California parents by statute, and securing a
published opinion recognizing and emphasizing the importance of that right, as judged by
the Legislature, in connection with charges of the type leveled against plaintiff. The
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court’s order awarded plaintiff slightly over one-tenth of the documented fees incurred in
securing the enforcement of that right. Such a result is not consistent with the statutory
purpose, and cannot be countenanced so long as the showing made in support of the
motion was sufficient to permit a fair determination of a reasonable fee. Indeed, in
keeping with the statutory purpose, it is within a court’s power to add weight to the
incentive by awarding a multiple of the fees reasonably incurred. (E.g., Edgerton v. State
Personnel Bd. (2000) 83 Cal.App.4th 1350, 1362-1363; Krumme v. Mercury Ins. Co.
(2004) 123 Cal.App.4th 924, 946-948.) Here, relying on technical evidentiary
deficiencies no party had raised, the court severely reduced the award. We cannot
conclude that this represented the exercise of sound discretion.
D. Brehmer
With respect to plaintiff’s second attorney, Brehmer of the Middlebrook firm,
plaintiff’s showing consisted of (1) an averment by Attorney Weissburg that Brehmer
“represented Plaintiff in the Superior Court for the Writ of Mandate Proceedings and
billed $15,000.00 for costs and fees,” and (2) an exhibit, attached to Weissburg’s
declaration, entitled “Civil Attorney – Client Fee Contract (Fixed Fee Without Refund),”
in which Brehmer agreed to prepare and present a writ petition and plaintiff agreed to pay
a fixed fee of $15,000.
In its original opposition to the fee motion, the Department’s entire challenge to
the Brehmer claim consisted of the following: “There is no declaration from attorney
Brehmer from which the Court can assess the reasonableness of his $15,000 ‘fixed fee
without refund.’ [Citation.] Importantly, there is no evidence of Mr. Brehmer’s
background or training, a description of the services rendered, or explanation of why the
fees in relation to the undescribed services are reasonable or necessary.”
In its order denying any recovery on account of the Brehmer representation, the
trial court again faulted the supporting evidence for lack of authentication, although once
17
again the Department had failed to lodge any such objection, instead tacitly accepting the
legal services contract as genuine. Further, the court wrote, “Petitioner has filed even
less information about services provided by Mr. Brehmer than the unsuccessful applicant
in Ajaxo.” This is a reference to Ajaxo, supra, 135 Cal.App.4th 21, 65, where this court
upheld a trial court’s denial of a request for $177,000 in fees incurred for services by
predecessor counsel. The trial court found that the attorneys had “not do[ne] a very good
job of preparing this case for trial,” and that one of them was apparently being sued for
malpractice over it. (Ibid.) The only evidence offered in support of the claim was the
declaration of the client stating “how many hours each attorney allegedly worked, each
attorney’s billing rate and the resulting fees.” (Ibid.) Here, there is no suggestion that
Brehmer’s services were not competently performed. Our impression, based upon the
record in Gonzalez I, is to the contrary. Moreover, the contract itself spelled out the
activities Brehmer would undertake: “a.) Research and prepar[e] . . . the Petition for Writ
of Mandate directing County of Santa Clara to set aside the Hearing Officer’s
recommendation to deny the grievance in support of social worker's findings of
‘substantiated.’ [¶] b.) Prepar[e] . . . the Notice of Hearing; Memorandum of Points and
Authorities; Supporting Declarations; Demand for Production of Administrative Record;
Order Setting Hearing on Petition and Briefing Schedule; and Reply Brief in support of
the Petition. [¶] c.) Attend hearing(s) on Petition and argue in support of set aside. . . .”
The record in the prior appeal shows that these duties and at least one other—an
application for stay—were indeed performed by Brehmer or his firm. Given this fact, the
only question before the trial court was whether a $15,000 flat fee for those services was
reasonable. We have no doubt that it could be found reasonable, and in any event that a
lesser fee could be allowed if it were found to be excessive. On remand the trial court
will consider that question in light of the fee contract and such additional evidence as the
parties may introduce.
18
DISPOSITION
The order is affirmed insofar as it found plaintiff eligible for fees and awarded fees
with respect to services rendered by Attorney Weissburg up to the making of the order.
The order is reversed with respect to the denial of fees as to Attorneys Chastain,
Brehmer, and Gorman. The court should reconsider those claims in accordance with the
views expressed in this opinion. Appellant will recover costs, including reasonable
attorney fees, incurred on this appeal. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 644;
EWAP, Inc v. City of Ontario (1986) 177 Cal.App.3d 1108, 1118.)
19
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
GROVER, J.
Gonzalez v. Santa Clara County Department of Social Services
H041997
20
Trial Court: Santa Clara County Superior Court
Superior Court No.: 1-11CV204141
Trial Judge: The Honorable Patricia M. Lucas
Attorneys for Plaintiff and Appellant Weissburg Law Firm
Veronica Gonzalez:
Diane B. Weissburg
Attorneys for Defendant and Respondent Office of the County Counsel
Santa Clara County Department of
Social Services: Orry P. Korb,
County Counsel
Marcy L. Berkman,
Deputy County Counsel
Gonzalez v. Santa Clara County Department of Social Services
H041997
21