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Clifford v. American Drug Stores8/22/2005
We must presume that the jurors understood the causation instructions and correctly applied them to the facts as they found them. (Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 523.)
We find no error by the trial court in refusing the instruction. (Dodge v. San Diego Electric Ry. Co., supra, 92 Cal.App.4th at p. 764.)
6. Attorney Fees
Sav-On suggests that the trial court erred in setting Clifford's attorney fees, because it did not correctly determine the lodestar figure.
" he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum), citing Serrano v. Priest (1977) 20 Cal.3d 25, 49 (Serrano III).)
The hourly rate used to determine the lodestar amount has typically been described as the "prevailing hourly rates," or "the basic fee for comparable legal services in the community" (Ketchum, supra, 24 Cal.4th at p. 1132); "`comparable salaries earned by private attorneys with similar experience and expertise in equivalent litigation,'" or "`hourly amount to which attorneys of like skill in the area would typically be entitled'" (Serrano v. Unruh (1982) 32 Cal.3d 621, 640, fn. 31 (Serrano IV); and "that prevailing in the community for similar work" (PLMC Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095).
"Under our precedents, the unadorned lodestar reflects the general local hourly rate for a fee-bearing case; it does not include any compensation for contingent risk, extraordinary skill, or any other factors a trial court may consider under Serrano III. The adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive payment if the suit does not succeed, . . . is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees." (Ketchum, supra, 24 Cal.4th at p. 1138, original italics.)
The trial court found that an hourly rate of $800 for trial attorney Ian Herzog was reasonable, and concluded that amount was the lodestar. The court held that Clifford had not met her burden of proof that enhancement of the
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