Filed 8/30/22 Canyon View Limited v. Lakeview Loan Servicing CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CANYON VIEW LIMITED, B311313
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. PC057181)
v.
LAKEVIEW LOAN SERVICING,
LLC,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephen P. Pfahler, Judge. Reversed with
directions.
Greines, Martin, Stein & Richland, Robin Meadow and
Jeffrey Gurrola for Plaintiff and Appellant.
McCarthy & Holthus and Melissa Robbins Coutts for
Defendant and Respondent.
Plaintiff Canyon View Limited (Canyon View) appeals
from an award of attorney fees in its favor against defendant
Lakeview Loan Servicing LLC (Lakeview), contending that the
amount of the award was erroneously inadequate. The court
entered the fee award on remand from Canyon View Ltd. v.
Lakeview Loan Servicing, LLC (2019) 42 Cal.App.5th 1096
(Canyon View I). Canyon View I decided four consolidated
appeals, one from Canyon View Ltd. v. Lakeview Loan Servicing,
LLC (Super. Ct. L.A. County, No. PC057181) (the Lakeview
action) and three from three similar lawsuits Canyon View filed
against three other defendants, respectively, regarding three
different mobilehome properties. Each appeal challenged an
order denying Canyon View attorney fees after the underlying
action was concluded in Canyon View’s favor. In Canyon View I,
we concluded Canyon View was statutorily entitled to attorney
fees in the Lakeview action and two of the other actions, and
directed the trial court to determine the reasonable amount of
attorney fees following remand. The same counsel represented
Canyon View in all four actions and in Canyon View I. The four
actions were separate, but the judicial officer presiding over the
Lakeview action proceedings also presided over another of the
four actions (before Canyon View I and on remand).
Canyon View contends the trial court abused its discretion
when it awarded 25 percent of the fees Canyon View requested
for work of its trial counsel before judgment and in connection
with the appeal in Canyon View I. We agree. In calculating the
fee award, the court discounted the fees Canyon View sought by
applying an across-the-board quartering approach, because the
billing records and related declarations of trial counsel Canyon
View provided did not satisfy the court that certain of trial
2
counsel’s fees were solely attributable to work on the Lakeview
action rather than all four matters.
We conclude the court’s quartering approach was arbitrary
in that it was not logically related to correcting the potential
overlap that concerned the court. Non-arbitrary alternative
approaches to assessing the reasonable amount of fees were
available that would not have required the court to accept
the accuracy of the billing records or the credibility of counsel’s
declarations.
Further, we also agree with Canyon View that the court
erred in failing to order reimbursement of the fees from work
performed by Canyon View’s additional counsel, the Law Offices
of Edward A. Hoffman, on Canyon View I. The court identified
no reason it could not rely on the declaration of Edward Hoffman,
nor did it cite any issues with the amount of the fees his firm
sought. Our independent review of the record likewise identifies
no basis for concern. Indeed, the record suggests that the court’s
failure to order these fees was an oversight, which we correct on
appeal.
Accordingly, we reverse the court’s order with directions
that the trial court enter a new order awarding (1) the amount
of fees associated with secondary counsel’s work on the Lakeview
action portion of Canyon View I; and (2) a reasonable amount
of attorney fees for the work of trial counsel prejudgment and in
connection with Canyon View I.
FACTS AND PROCEEDINGS BELOW
A. The Lakeview Action and Canyon View I
At a public sale following abandonment proceedings under
the California Mobilehome Residency Law (Civ. Code, § 798
3
et seq.) (the MRL), Canyon View purchased a mobilehome in
which Lakeview held a lien. Under the MRL, the purchase of a
mobilehome via such a proceeding extinguishes all then-existing
liens and interests in the home. After Canyon View acquired title
in this manner, Lakeview nonetheless recorded documents that
asserted a lien on and a security interest in the home. Canyon
View filed a complaint against Lakeview alleging that such
recordations created a cloud on title. The parties resolved
the action in Canyon View’s favor before trial via a stipulated
judgment.
The MRL entitles the prevailing party in an action
“arising out of ” the MRL to reasonable attorney fees. (Civ. Code,
§ 798.85.) The court denied Canyon View’s initial motion for
attorney fees on the basis that the Lakeview action did not arise
out of the MRL, and that even if it did, no amount of attorney
fees would be reasonable to award Canyon View in any event.
In Canyon View I, we reversed, holding the Lakeview
action did arise out of the MRL, and that therefore the MRL
entitled Canyon View to attorney fees as the prevailing party.
B. Canyon View’s Post-Canyon View I Motion for
Attorney Fees
On remand from Canyon View I, Canyon View sought
attorney fees falling into four time frames: (1) fees for work
beginning in January 2016, when Canyon View first reached out
to Lakeview and asked it to remove documents clouding title, and
continuing through judgment on April 5, 2017 (the prejudgment
work); (2) postjudgment fees for work between April 6 through
September 13, 2017, mainly relating to the first (unsuccessful)
fee motion; (3) fees for work on the Canyon View I appeal;
and (4) fees for litigating the fee motion that is the subject of
4
this appeal. Canyon View challenges the amounts of attorney
fees the court awarded for the first and third categories only
(prejudgment work and Canyon View I appeal work).1
The work for which Canyon View sought to recover
attorney fees was performed by two firms: Norminton, Wiita
& Fuster (NWF), counsel of record for Canyon View in the
Lakeview action; and the Law Offices of Edward A. Hoffman,
which began work on the matter during the Canyon View I
appeal, and became lead counsel when NWF ceased operations.
To support its request for fees, Canyon View submitted
declarations of Thomas M. Norminton of NWF, NWF billing
records, and a declaration of Edward Hoffman.
1. The Norminton declaration
The Norminton declaration explained that NWF was
a small firm, and that Norminton supervised all work and
“supervised the preparation of every bill for every client.”
NWF handled several other matters for Canyon View, three of
which are of note. Specifically, NWF had filed actions against,
respectively, three entities other than Lakeview, seeking to quiet
title to other mobilehomes located in Canyon View’s mobilehome
park on the same legal basis as that raised in its action against
Lakeview. Like the mobilehome at issue in the Lakeview action,
Canyon View had purchased the properties at issue in these
three other actions via MRL-regulated public sales. Also like
the Lakeview action, Canyon View alleged that each of the
defendants had recorded documents regarding the subject
1We will summarize the parties’ and court’s discussion
below of the other fees and costs at issue in the motion only as
necessary to address the issues raised on appeal.
5
property that created a cloud on title, based on lien and/or
security interests, although these interests had been
extinguished pursuant to the MRL. Also like the Lakeview
action, these actions were all resolved via stipulated judgment
in Canyon View’s favor before trial. We shall refer to these
other actions as the BONY action, the Ocwen action, and the
Household action.2
Despite the similarities in the general fact pattern
and legal issues involved across the Lakeview, BONY, Ocwen,
and Household actions, the facts of each matter were distinct—
different loans by different banks to different defaulting
mobilehome owners. The actions were separate at the trial court
level, and divided between two trial judges. We consolidated
the appeals from the denial of attorney fees in all four cases in
Canyon View I based on their involving the same legal issue:
whether each action “aris[es] out of ” the MRL.
The Norminton declaration addressed how Canyon View
had identified the fees associated with work on the Lakeview
action, as opposed to the BONY, Ocwen, or Household actions.
In it, Norminton explained that before July 2016, fees incurred
in the Lakeview case were billed to a general matter number,
but all Lakeview-related entries were explicitly identified in
the description as pertaining to Lakeview, either via reference
to the lot number at issue or the owner of the lot. Norminton
declared that this allowed NWF to identify entries pertaining to
the Lakeview action, and that all entries relating to cases other
2The defendants in these other actions are: Bank of
America, N.A. and The Bank of New York Mellon (BONY); Ocwen
Loan Servicing, LLC and Power Default Services, Inc.; and
Household Finance Corporation of California.
6
than Lakeview were excised from the billing records submitted
to the court, based on which Canyon View calculated the amount
of fees it requested for work before July 2016: “Those entries
[unrelated to the Lakeview action] have been redacted . . . and
the associated fees and costs have been deducted from the total
[fee amount requested].”
Beginning July 2016, Canyon View’s attorneys maintained
a separate case file for the Lakeview action and billed all
Lakeview-related work to that matter. Entries billed to this
matter formed the basis for Canyon View’s fee request amount
for NWF work starting in July 2016.
The declaration further recognized that some work
performed in connection with the Canyon View I appeal related
to all four cases. The declaration explained that “[f]or this
reason, [Norminton] instructed the attorneys and paralegals in
the firm to apportion their time among the four appeals for tasks
on common issues and separately bill their time to one case on
matters not in common with the other three cases.” To preserve
the separateness of the four cases, “[a]fter the consolidation [of
the four appeals], separate monthly Fee and Cost Statements
were prepared for Canyon View on each of the four [c]onsolidated
[a]ppeals, just as these Fee and Cost Statements had been
prepared separately for each case in the litigation prior to the
consolidation.”
The Norminton declaration thus attested to the billing
records submitted in support of the fee request reflecting work
specific to, or apportioned to, the Lakeview action, and excluding
any work on the related Ocwen, BONY, and Household actions.
7
2. NWF billing records
The NWF billing records Canyon View submitted to
support the fee request included entries that, although identified
with the post-July 2016 Lakeview action matter number or
otherwise identified as associated with the Lakeview action,
did not appear to be related to work on the Lakeview action.
For example, the billing records reflected fees for tasks involving
JPMorgan Chase Bank, Kondaur Capital, Ocwen, and California
Reconveyance Company, and none of these entities is related to
the Lakeview action.
The records also included entries billed for NWF work
reviewing and analyzing affirmative defenses in the answer
months before any answer was filed in the Lakeview action,
and fees for trial preparation and demurrer work after the
stipulation for judgment in the Lakeview action had already
been entered. Other examples include entries for discovery
work before Lakeview had been served with the complaint, and
after the parties had agreed to a stipulated judgment; entries for
“[r]esearch[ing] other clients[’] files to locate opposition to motion
for judgment on the pleadings,” although no motion for judgment
on the pleadings was filed in the Lakeview action; a March 2017
entry for work on “points for argument on [m]otion to [c]ompel
discovery,” even though the motion to compel in the Lakeview
action had already been decided in January 2017; and an entry
for work “[p]repar[ing] notes re[garding]: points to make in
opposition to the demurrer” several weeks after Canyon View’s
opposition had been filed and the demurrer had already been
decided in the Lakeview action.
8
3. The Hoffman declaration
The Hoffman declaration indicated that Hoffman had
“not yet prepared an invoice for Canyon View,” in part due to
COVID-19 pandemic work disruptions, and Canyon View did not
submit billing records for Hoffman’s work in support of its fee
motion. Instead, Hoffman’s declaration described his work on the
Canyon View I appeal, which totaled 46 hours, and indicated that
“[m]uch of the work applied to all four cases. The portions that
were case-specific were spread quite evenly among the four cases,
so I apportion[ed] 11.5 of these 46 hours to the Lakeview case.”
The Hoffman declaration also described the total amount
Hoffman expected to bill for his work on the second fee motion
following the appeal, which totaled 22 hours. Hoffman’s billing
rate was $375.00 per hour, meaning the fees Hoffman attributed
to Lakeview’s portion of the Canyon View I appeal were $4,312.50
and the fees he attributed to the second fee motion were $9,375.
C. November 2020 Order Continuing Hearing on
Attorney Fees Motion
In a November 4, 2020 order, the court rejected Lakeview’s
argument, made in opposing Canyon View’s fee motion, that fees
Canyon View incurred in the Lakeview action after Lakeview
recorded a reconveyance of title were not necessary to clear
title and thus were not recoverable under the MRL. The court
characterized this argument as an attempt to relitigate the
“arising out of ” issue decided in Canyon View I, and identified the
sole issue before the court as determining the specific amount of
reasonable fees that Canyon View could recover under the MRL.
The court determined that the lodestar method of
calculating a reasonable fee award applied, and that the hourly
rates claimed by NWF and Hoffman were reasonable.
9
The court determined it needed additional information
to address Lakeview’s argument that Canyon View’s fee request
included specific entries for NWF ’s work that were “for unrelated
entities,” unnecessary discovery, “excessive appellate fees, and
other examples of duplicative entries” and that this “ ‘excessive’
billing undermine[d] the overall ‘credibility’ of the requested
fees.” Examples of these entries, which Lakeview also
highlighted in its briefing below, are summarized above. (See
Factual Background ante, part B.2.) The court explained that
Lakeview had raised “valid arguments on grounds of both
vague and questionable billing entries, as well as the necessity
of certain action,” and that Canyon View had “barely addressed”
this argument in its reply brief. With regard to NWF ’s fees, the
trial court stated that the court “remains unable to determine
whether the fees requested seek duplicative recovery of attorney
fee costs, and whether the entries pro rata separate the appellate
brief costs.” The trial court therefore continued the motion
hearing and “order[ed] further briefing addressing[, inter alia] . . .
a pro rata accountability for the appellate work handled by
moving counsel [Norminton/NWF], not appellate counsel.” The
court further instructed that the briefing should “focus on . . .
the applicability of the requested fees relative to any and all
work done as to Lakeview ONLY,” and that Canyon View was to
“submit supplemental declarations and/or billing statements.”
10
D. Parties’ Supplemental Submissions
Canyon View provided a supplemental Norminton
declaration, based on Norminton’s “review[ing] again the files in
this case, and the month-by-month summary of [NWF ’s] bills as
well as the monthly bills themselves” that had been attached to
the previous fee motion. The supplemental declaration noted, as
had the initial declaration, that the appeal-related fees NWF
sought in the motion were apportioned before being submitted
to the court, and thus the requested fees related to only the
Lakeview action.
In its supplemental briefing and declarations, Canyon View
acknowledged, however, that it had erroneously included in its
fee request fees for certain NWF work that was not attributable
to the Lakeview action. It therefore adjusted its fee request to
remove entries totaling $2,116.45.
The following table summarizes Canyon View’s request
for fees via the post-remand fee motion, as adjusted in the
supplemental submissions Canyon View provided the court:
11
Prejudgment work $63,935.97
First fee motion $27,252.19
Canyon View I (Lakeview action $78,982.63
portion)
Downward adjustment for erroneous ($2,116.45)
entries in NWF bills
Hoffman fees $13,687.50
(comprised of $4,312.50 for
work on Canyon View I and
$9,375 for work on the
second fee motion)
Second fee motion $5,412.38
NWF total $173,466.70
Grand total $187,154.20
In its supplemental opposition, Lakeview argued that
the admitted inaccuracy of the original Norminton declaration
and fee motion—namely, their representation that the NWF
fee request was based solely on fees attributable to the Lakeview
action, when in fact numerous entries in the supporting
documentation belied this—“undermine[d] the credibility of
[Lakeview’s] fee statements as a whole,” and that Canyon View
had thus failed to meet its burden of providing the court with
accurate time records to support its fee request. Lakeview more
specifically argued Canyon View had not provided the records
necessary to establish that the fee request was for work on the
Lakeview action only. Lakeview did not, however, argue that
12
the bills Canyon View had submitted reflected all work for all
four matters.
E. March 4, 2021 Hearing and Final Fee Award
In its fee award that is the subject of this appeal, the court
acknowledged that Canyon View’s supplemental submissions
“provide[d] further clarification of the submitted billing entries
for the litigation leading to judgment, appeal and current
motion to recover fees.” As to fees associated with the Canyon
View I appeal, however, the court noted that “[w]hile counsel
admits that not all fees were incurred equally given the
uniqueness of the four defendants, the court finds the
substantially overlapping arguments [on appeal] renders
precise determination impractical. The court therefore splits
the appellate fees four ways,” awarding $19,589.27, a quarter
of the NWF fees associated with Canyon View I.
As to fees for prejudgment work, “the court cite[d] to
the prior raised concerns” and excerpted the portion of its
November 4, 2020 order describing these issues, including
certain apparently “ ‘superfluous entries’ ” and concerns about
duplicative recovery of fees across the four actions. The court
concluded that “[e]ven with better clarification [via Canyon
View’s supplemental submissions], the court still finds the
requested [prejudgment work] fees excessive. While some of
the discovery and demurrer work expressly applie[d] to the
Lakeview . . . [action], the court remains unable to determine
how much crossover work actually applied to the other
defendants. Given the similarities of the four actions and the
inability to sufficiently parse out the required, unique work,
the court divides the previously represented balance . . . [of fees
requested] into quarters thereby reducing potential duplicative
13
recovery on potential subsequent motions against the remaining
three defendants as well. The division also reduces the
questionable entries raised in the prior order . . . by [Lakeview].”
Applying this approach, the court awarded a total of
$63,701.59 in fees to Canyon View, which included $19,870.94
for prejudgment work—essentially a quarter of the NWF fees
requested for this period—and $19,745.66 for fees associated
with the Canyon View I—essentially a quarter of the NWF fees
requested for work on the appeal, plus fees for work on the first
and second fee motions, which Canyon View does not challenge.
Because the court’s award of fees associated with the Canyon
View I work was based solely on this quartering of the amounts
reflected in NWF bills, the court appears to have awarded no
separate amount based on Hoffman’s work on the appeal. The
court also awarded $18,000 for work on the first attorney fee
motion and $6,241.38 for work on the second attorney fee motion.
Canyon View timely appealed the March 4, 2021 order
awarding fees and costs.3
3 The same judicial officer decided both the fee motion in
the Lakeview action and the fee motion in the BONY action. In
the BONY fee award, the court awarded Canyon View the same
amounts for prejudgment work and work on Canyon View I that
it did in the Lakeview action, “[c]onsistent with the prior [i.e.,
Lakeview action] order.” The validity of the court’s fee award
in the BONY action is the subject of a separate appeal. (See
Canyon View Limited v. The Bank of America N.A. (B312259,
app. pending).) The validity of the BONY fee award thus is not
presently before us. Whether and in what way our opinion in
the instant appeal affects the validity of the fee award in the
BONY action is an issue the BONY parties may address in that
appeal.
14
DISCUSSION
“To the extent a trial court is concerned that a particular
award is excessive, it has broad discretion to adjust the fee
downward or deny an unreasonable fee altogether.” (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1138 (Ketchum).) We thus
review such determinations for an abuse of discretion. “ ‘ “ ‘The
appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.’ ” ’ ”
(Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker
(2016) 2 Cal.App.5th 252, 260−261.)
Canyon View argues the court abused its discretion in
(1) awarding only a quarter of the NWF attorney fees Canyon
View requested for NWF ’s work on the Lakeview portion of the
Canyon View I appeal and the firm’s prejudgment work in the
Lakeview action, and (2) declining to award any of the requested
fees attributable to Hoffman’s work. We address each argument
in turn.
A. NWF’s Fees for Prejudgment Work and Work
on Canyon View I
In challenging the court’s “quartering” approach,
Canyon View argues (1) the court’s approach was based on
an understanding of NWF ’s billing records wholly unsupported
by the evidence, (2) the court’s 75 percent reduction bore
no relationship to the court’s concerns about the supporting
documentation, and (3) the court acted outside the scope
of remand in applying this approach.
15
1. The challenged fee analysis was not based
on factual determinations unsupported
by the record, but rather on the court’s
conclusion that Canyon View failed to
provide credible evidence that the fees
requested were properly recoverable
Canyon View argues that “[t]he trial court’s foundational
error was its belief that the documentary evidence Canyon
View submitted—declarations, billing records, and invoices—
represented Canyon View’s fees for litigating all four cases
involved in Canyon View I ” and that this characterization is
unsupported by the evidence. (See Metis Development LLC v.
Bohacek (2011) 200 Cal.App.4th 679, 693 [“an abuse of discretion
may be found when the court proceeds upon a mistaken premise
or a factual finding not supported by substantial evidence”].)
But the court did not conclude that the fees requested were for
all work performed for all four cases. Rather, the court concluded
the documentary evidence Canyon View had provided to support
its fee request could not reliably establish that those fees were
only for work attributable to the Lakeview action.
In the March 4, 2020 and November 4, 2020 orders, the
court questioned the reliability of NWF billing records based
on various Lakeview-action-related entries in the NWF bills
including work that could not have been for the Lakeview action.
Despite these inaccuracies, the initial Norminton declaration also
characterized the bills as including only work for the Lakeview
action. After the court called into question the credibility of
both the NWF billing records and the Norminton declaration—
specifically with respect to the issue of whether the fee request
reflected only work on the Lakeview action—the court did not
have before it what it regarded as sufficiently reliable evidence
16
to conclude what portion of the requested fees was truly
recoverable in the Lakeview action. “[T]he court remain[ed]
unable to determine how much crossover work actually applied
to the other defendants” and unable “to sufficiently parse out
the required, unique work” in the Lakeview action.
To address this, rather than deny recovery for fees
associated with specific entries, the court opted to quarter the
fees requested to assure there was no overlapping recovery across
the four related actions.4
2. The court did not abuse its discretion
in finding not credible the evidence
that the NWF fees requested for
prejudgment work and Canyon View I
were all attributable to the Lakeview
action
We generally defer to credibility determinations below.
(See Guidici v. Guidici (1935) 2 Cal.2d 497, 503; Lenk v.
Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968; City of
4 We reject Canyon View’s argument that the court
necessarily must have based its quartering approach on a factual
determination that the NWF documentation included fees from
all four actions. As noted, the court never made such a finding,
nor expressed a view supporting Canyon View’s assertion.
(Cf. Etcheson v. FCA US LLC (2018) 30 Cal.App.5th 831, 845
[“ ‘[w]hen the court states its reasons [for a fee award] explicitly,
we cannot infer’ ” a different reason as a basis for affirming the
award].) It did, however, question the sufficiency of the evidence
Canyon View provided to determine the extent to which the fee
request was only for work on the Lakeview action. We disagree
with Canyon View that credibility concerns about the supporting
evidence and concerns that the fee request includes fees for work
on other cases are mutually exclusive.
17
Glendale v. Marcus Cable Associates, LLC (2014) 231 Cal.App.4th
1359, 1385 [“ ‘[a]n appellate court does not reweigh the evidence
or evaluate the credibility of witnesses, but rather defers to the
trier of fact’ ”].) When live witness testimony is at issue, the trial
court is uniquely qualified to assess credibility, because the trial
court—unlike an appellate court—has observed a witness’s
demeanor and heard a witness’s voice while testifying. A trial
court has similarly unique qualifications to assess the credibility
of attorney declarations and billing records submitted in support
of a fee request when the judicial officer deciding the fee request
has also presided over the matter in which the requested fees
were incurred. Such is the case here. Under this deferential
standard, we find no error in the trial court’s credibility
assessment of the Norminton declarations and NWF billing
records. The record reflects—and Canyon View admits—that
some of the work itemized in the bills on which Canyon View
based its initial fee request was not done for the Lakeview action,
despite the initial Norminton declaration swearing that the
contrary was true. We cannot conclude the trial court erred in
concluding the billing records did not reliably isolate work only
on the Lakeview action—even after the obviously erroneous
entries had been excised.
3. The court’s “quartering” approach was
an abuse of discretion
Here, based on its concern that the requested fee amount
was excessive in that it includes fees for other actions, the court
chose to exercise its “broad discretion to adjust the fee downward”
by awarding a quarter of the amount requested for NWF ’s
prejudgment work and work on Canyon View I. (Ketchum, supra,
24 Cal.4th at p. 1138; accord, Christian Research Institute v.
18
Alnor (2008) 165 Cal.App.4th 1315, 1321–1322, 1325–1326
(Christian Research Institute).) But the court’s concern about
the requested fees including fees incurred in other actions is
not a “reasonable basis” for the quartering approach the court
applied to calculate the fee award. (Gorman v. Tassajara
Development Corp. (2009) 178 Cal.App.4th 44, 101 [“[there
must be] a reasonable basis for the trial court’s reduction of
the lodestar amount”]; see Mountjoy v. Bank of America, N.A.
(2016) 245 Cal.App.4th 266, 281 (Mountjoy) [an across-the-board
“reduction in hours claimed” based on flawed entries, “without
any correlation shown to the number of hours claimed on the
flawed entries, is arbitrary”].) The Court of Appeal reached a
similar conclusion in Mountjoy and reversed the fee award at
issue as arbitrary. (Mountjoy, supra, at pp. 280−281.) Mountjoy
describes the trial court’s erroneous approach as follows:
“Essentially the [lower] court . . . determined that because well
over 70 percent of the billing entries suffered from one or more
flaws, it was appropriate to simply reduce the total hours claimed
by 70 percent.” (Id. at pp. 280−281.) The Court of Appeal held
that, under this approach, there was “no reasonable basis for the
conclusion that the total hours included in the 70 percent-plus
time entries that were flawed in one or more ways was even
reasonably close to 70 percent of the total time claimed. . . . The
trial court has broad discretion in ruling on a fee request, but
that ruling cannot be arbitrary, and a 70 percent reduction in
hours claimed based on the conclusion that more than 70 percent
of the time entries are flawed, without any correlation shown to
the number of hours claimed on the flawed entries, is arbitrary.”
(Ibid.)
19
The same lack of correlation rejected in Mountjoy exists
between (1) the court’s concern that the NWF bills at issue could
contain not just fees for work on the Lakeview action, but at
least some fees for work on one or more of the three related
cases as well, and (2) the court’s quartering reduction of the total
requested fees. Whatever fees that request included, it did not
include the total NWF fees for all prejudgment and Canyon
View I work in all four cases. There is thus “no reasonable basis
for the conclusion that the total hours included in the [25 percent
of NWF’s requested prejudgment and Canyon View I fee
amount] . . . was even reasonably close to [25] percent of the
total” NWF fees in all four cases for prejudgment work and
Canyon View I work. (See Mountjoy, supra, 245 Cal.App.4th at
p. 281.) In short, it is not “permissible for a trial court—[even]
when faced with a plethora of flawed attorney time entries—to
engage in an across-the-board reduction of hours of the kind the
trial court imposed here.” (Id. at p. 280.) In doing so here, the
court abused its discretion.
Lakeview also defends the court’s award and approach
as based in part on the fact that work NWF performed after
Lakeview recorded a reconveyance and quitclaim deed was
unnecessary to clear title, and thus not reasonably recoverable
under the MRL. There is no reading of the court’s orders that
permits the inference that the court used this as a basis for
any aspect of its fee award. The court expressly rejected this
argument as inconsistent with Canyon View I. Nor did the court
identify or question any charges based on their occurring after
any date associated with that reconveyance or quitclaim deed.
In any event, even if this were the explanation for the trial
court’s 75 percent reduction, there would still be no reasonable
20
basis for concluding that such an across-the-board reduction
would address that concern. It thus does not provide a basis
for affirming the court’s award.
We note, however, that the court is free to consider
Lakeview’s recording a reconveyance and quitclaim deed in
assessing what work was reasonably necessary in the Lakeview
action, and, as a function thereof, the amount of fees Canyon
View may recover. In the unpublished portion of Canyon View I,
we similarly indicated that “[w]e share the trial court’s concerns
that the proceedings may have been more extensive than
necessary, given that, for example, proceedings in the Lakeview
action continued for several months after Lakeview filed a post-
litigation reconveyance and quitclaim deed.” Given that the court
clearly did not consider whether these recordations rendered any
portion of the fee request unreasonable, however, we decline to
consider this factual issue for the first time on appeal.
4. The record contains a non-arbitrary basis
for determining a reasonable amount of
attorney fees for NWF’s prejudgment and
Canyon View I work
That the court’s approach reflects an abuse of discretion
does not end our inquiry. As the party seeking fees and costs,
Canyon View “ ‘bear[s] the burden of establishing entitlement
to an award and documenting the appropriate hours expended
and hourly rates.’ [Citation.]” (ComputerXpress, Inc. v. Jackson
(2001) 93 Cal.App.4th 993, 1020.) If there was no basis in the
record for the court to take a non-arbitrary approach to assessing
fees, then the court would be within its discretion to simply deny
fees altogether. We must therefore determine whether the record
contains sufficient support for the court to have awarded some
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amount of reasonable fees for NWF’s prejudgment work and
work on Canyon View I that is not arbitrary and instead bears
a reasonable relationship to the work performed.
To this end, Canyon View argues that the court could have
subtracted from the fee request fees for those entries that clearly
reflected work on other cases. But once we accept—as we must—
the court’s credibility concerns about NWF ’s billing, such an
entry-by-entry reduction does not make sense, because it
assumes all generally phrased entries that are not obviously
unrelated to the Lakeview action were indeed for Lakeview
work. Many of the entries in NWF ’s fee statements are stated in
general terms, making it impossible to identify whether the fees
were incurred in the Lakeview action or one of the related cases
consolidated with the Lakeview action appeal in Canyon View I.
Moreover, “[i]t is the obligation of the party (and attorney)
seeking the fee award ‘to prune the fee request to comply with
the law,’ and the party (and attorney) cannot ‘transfer that
responsibility onto the trial court.’ ” (Mountjoy, supra, 245
Cal.App.4th at p. 280; see Christian Research Institute, supra,
165 Cal.App.4th at p. 1329 [“counsel may not submit a plethora
of noncompensable, vague, block-billed attorney time entries
and expect particularized, individual deletions as the only
consequence”].) Given that it is undisputed Canyon View
erroneously attributed work to the Lakeview action in several of
its billing entries, it is not unreasonable for the court to question
whether other billing entries phrased in general terms might
likewise have been incorrectly attributed to the Lakeview action.
An alternative approach to determine a reasonable fee
award was possible on the record before the trial court, however,
even given its concern about certain billing records. As for the
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prejudgment work, the judicial officer deciding the fee motion
in the Lakeview action was the same officer that had presided
over all other proceedings in the case, and thus the court had
firsthand knowledge of the procedural history of the case and the
prejudgment work NWF would have needed to perform to obtain
the result it did. The court could have determined a reasonable
amount of attorney fees for that prejudgment work, and awarded
that amount. For example, the court might determine that
the Lakeview action required NWF to, inter alia, prepare a
complaint, investigate potential affirmative defenses, litigate
a demurrer with a certain number of issues, and prepare and
respond to various other specific motions. The court could then
assess, based on its general experience as well as its experience
with the Lakeview action specifically, whether the work was
necessary and, as to the necessary work, the number of hours
an attorney or attorneys might reasonably need to complete each
task. Then, the court could multiply the number of hours by the
NWF hourly rate—the reasonableness of which the court did not
question—to calculate the reasonable amount of fees for these
tasks.5
As to NWF’s fees for Canyon I, the court could have
determined the amount of work reasonably necessary for NWF
to prepare for, and argue, that appeal as a whole for all four
cases. In so doing, the court could take into account the fact that
NWF had the assistance of co-counsel Hoffman, and the number
5 We note that the example calculations provided above
are offered solely for the purpose of explaining the analysis we
are describing. We leave it to the trial court upon remand to
exercise its broad discretion in selecting a method to determine
reasonable fees.
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of hours of work Hoffman put into preparing for the appeal. (As
we discuss in Discussion part B, post, the court never questioned
the credibility of Hoffman’s estimates of the work he contributed
to Canyon View I.) The court could have then determined a
reasonable amount of attorney fees for that work, and awarded
a quarter of that amount. For example, the court could estimate
the number of hours it would reasonably take an attorney to
prepare the Canyon View I consolidated briefing and to prepare
for consolidated argument, based on the number of issues
presented in the appellate briefing and on the court’s preexisting
familiarity—gained through review of the Canyon View I opinion
on remand—with the nature of these issues. The court could
then multiply this number of hours by the NWF hourly rates and
award a quarter of that amount. This approach takes advantage
of the trial court’s familiarity with the case, on which appellate
courts typically rely in reviewing the reasonableness of attorney
fees awards.6
B. The Court Erroneously Failed to Award Fees
Based on Hoffman’s Work on Canyon View I
Canyon View also challenges the court’s apparent failure to
award any fees based on the work of attorney Hoffman. Canyon
View refers to Hoffman as “appellate counsel,” but challenges
6 Because we reverse with instructions for the reasons we
discuss more thoroughly in the preceding and following sections,
we need not consider Canyon View’s additional argument that
the trial court’s approach to calculating the fee award is void,
because it was not “in accordance with the direction of ” this court
in Canyon View I for proceedings following remand. (Ayyad v.
Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859.)
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the court’s failure to award fees for his work both on the Canyon
View I appeal and the second fee motion following remand.
As to Hoffman’s work on the second fee motion, the court
determined generally that $6,241.38 was a reasonable amount
of fees for all work on that motion, and awarded that amount.
Canyon View does not challenge this finding, and thus cannot
challenge the court’s approach to Hoffman’s fees for same.
As to Hoffman’s work on the Canyon View I appeal, Canyon
View obviously does challenge the court’s overall approach to
fees for Canyon View I work, as discussed above. We note that
the credibility concerns expressed by the court stem entirely from
NWF billing records and the Norminton declarations. The court
noted no such concerns with Hoffman’s description of the manner
in which he apportioned the hours he worked on the consolidated
Canyon View I appeal, nor does Lakeview identify any errors,
inaccuracies, or implausibility in this description. The court
did not mention Hoffman’s fees at all in the final award, and
mentions Hoffman in the November 4, 2020 order only to the
extent it determines his hourly rate is reasonable. We decline
to assume that the court found Hoffman’s declaration not
credible based on errors in another attorney declaration. The
two attorneys are from separate firms, and nothing in the record
would support imputing the court’s concerns about the records
of one to the records of the other. Moreover, the court requested
supplemental briefing and evidence to address its concerns about
NWF ’s fees for work on other cases being included in the fee
request; it did not request additional submissions addressing
Hoffman’s fees. This suggests the court did not have concerns
about the reliability of Hoffman’s allocation of fees between
matters. Nor do we find any basis in the record for such
25
concerns. It thus appears that the court inadvertently failed
to award any fees based on Hoffman’s work on Canyon View I.
To the extent the court’s failure was not inadvertent, and it
instead rejected as not credible Hoffman’s declaration that
11.5 hours of the time he reasonably spent working on Canyon
View I can be allocated to the Lakeview action, the court abused
its discretion.7 (See Horsford v. Board of Trustees of California
State University (2005) 132 Cal.App.4th 359, 396 [concluding the
trial court “abused its discretion in rejecting wholesale counsels’
verified time records . . . in the absence of a clear indication the
records are erroneous”]; see Hanna, supra, 36 Cal.App.5th at
p. 507 [abuse of discretion to deny fees based on a factual finding
unsupported in the record].)
7 To the extent the court concluded that its quartered
version of NWF ’s appellate fees was in lieu of any recovery for
fees charged by Hoffman for Canyon View I, such an approach
requires an implicit finding that Hoffman’s fees for work on
Canyon View I were either unreasonable or excessive, which is
“ ‘entirely lacking in evidentiary support’ ” and would thus also
be an abuse of discretion. (Hanna v. Mercedes-Benz USA, LLC
(2019) 36 Cal.App.5th 493, 507 (Hanna).)
26
DISPOSITION
The March 4, 2021 order on Canyon View’s fee motion
is reversed, and the court is instructed to enter a new order
awarding Canyon View (1) a reasonable amount of attorney fees
for NWF’s prejudgment work in the Lakeview action and NWF’s
work in connection with Canyon View I attributable to the
Lakeview action, plus (2) $4,312.50, which reflects the portion
of attorney Hoffman’s fees for work on the Canyon View I appeal
attributable to the Lakeview action.
The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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