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Clifford v. American Drug Stores8/22/2005
only the sufficiency of the evidence to establish a prevailing hourly rate in non-contingent cases in the community. But Sav-On has failed to meet its burden to demonstrate that the evidence is insufficient for that purpose.
A judgment is presumed to be correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) And we presume that the record contains evidence to sustain every finding of fact. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) It is the burden of the party challenging the judgment to overcome the presumption by demonstrating that it does not contain sufficient evidence, and it must do so by fairly summarizing the facts in the light most favorable to the judgment. (Ibid.)
Twelve declarations were submitted in support of Clifford's motion for attorney fees. Sav-On argues in a footnote that Clifford "submitted several declarations that state that $800/hour is `fair and reasonable' for Mr. Herzog's services, but none suggested that any lawyer actually bills at that rate in non-contingent fee cases." This argument is basically a non sequitur. The bottom line is that " he `experienced trial judge is the best judge of the value of professional services rendered in his 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.' [Citations.]" (Serrano III, supra, 20 Cal.3d at p. 49.)
Sav-On also contends that the fee request included duplicate entries which the trial court failed to deduct from the hours allowed. Sav-On refers to attorney time sheets in the record, and points out for this court which of the entries are duplicates of one another, although it does not provide mathematical calculations to show that the total request was not reduced by the duplicate requests. Sav-On is apparently inviting this court to conduct a de novo review of the time sheets.
The standard of review with regard to the amount of an attorney fee award is abuse of discretion, not de novo. (See Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322.) Sav-On's argument disregards the trial court's exercise of discretion, and fails even to refer to the court's order.
Our own review reveals that Sav-On requested a statement of decision, and the trial court issued one, detailing the hourly rates permitted and the total fees awarded with regard to each of Clifford's attorneys. Sav-On objected to the statement of decision, in part on the ground that it did not address the fees that Stephen Glick admitted to have been duplicative in the original request. The court subsequently issued an order awarding the fees as set forth in the statement of decision.
Glick had stated in a supplemental declaration that his requested fees should be reduced by $38,000 to $1,060,000. The trial court awarded Glick and other attorneys a total of approximately $1,082,000. Sav-On does not
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