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Clifford v. American Drug Stores8/22/2005
lodestar was necessary or appropriate in this case, and refused to enhance it.
Sav-On contends that the trial court erred, because there was "no evidence before the trial court that lawyers in Los Angeles are paid anything close to $800/hour in non-contingent fee cases."
The trial court did not purport to determine the usual hourly rate charged by attorneys of similar experience in the community in non-contingent cases. The California Supreme Court has "approved the calculation of attorney fees beginning with a lodestar figure based on the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting non-contingent litigation of the same type. [Citation.]" (Ketchum, supra, 24 Cal.4th at p. 1133, italics omitted, citing Serrano IV, supra, 32 Cal.3d at p. 625.) It may be the better practice, but there is no requirement, as Sav-On suggests, mandating that the "prevailing hourly rates" be determined without regard to the skill and experience of the particular attorney before the court, or that they be equal to the prevailing rate charged by attorneys in non-contingent cases.
The rule is that if the lodestar is based upon an hourly rate calculated by considering the skill and experience of the attorneys, as well as the nature of the work performed, those considerations may not be duplicated in the application of an adjustment to the lodestar. (Ketchum, supra, 24 Cal.4th at pp. 1138-1139; Flannery v. California Highway Patrol, supra, 61 Cal.App.4th at p. 647.) Since the trial court did not adjust what it termed the lodestar, there was no duplication.
Sav-On apparently wishes us to find, as a matter of law, that $800 per hour is excessive for any attorney in today's market. Sav-On relies upon several cases decided within the past five years, but those cases did not so hold. In two of them, an appellate court affirmed the trial court's approval of the requested hourly rate, without suggesting that a higher rate would be excessive as a matter of law. (See, e.g., Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 904 [$225]; Children's Hospital and Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 782 [$380, average of two rates].)
In another, an adjusted figure of $800 per hour was deemed excessive, because "the record expressly demonstrates that the trial court has considered the same factors twice, and has used them not only to calculate a reasonable hourly rate for purposes of awarding the lodestar award amount but also to enhance it . . . ." (Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 626-627.) Further, the $800 in that case reflected an enhancement that was 2.5 times the lodestar, a multiplier that can be justified only in truly pioneering and high risk cases. (See ibid.) No multiplier was applied in this case.
Sav-On has not shown the trial judge to be clearly wrong, and challenges
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