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Clifford v. American Drug Stores8/22/2005
that the trial court had no discretion --that it was required to "incorporate a premium for the risk of non-recovery, for the delay in payment and for the economic risks associated with the contingent fee arrangement." She relies upon Serrano III, supra, 20 Cal.3d at page 49, which did not hold that every fee award must be enhanced. In fact, our Supreme Court has made it clear that "the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case . . . ." (Ketchum, supra, 24 Cal.4th at p. 1138.)
And it was Clifford, as the party seeking a fee enhancement, who bore the burden of proof of such factors. (See Ketchum, supra, 24 Cal.4th at p. 1138.) The trial court found that Clifford had not met her burden of proof, and that finding is presumed correct on appeal. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Now, it is Clifford's burden to establish that the trial court abused its discretion. (Id. at p. 566.) And since Clifford bore the burden of proof on the issue in the trial court, she is required to point to evidence that compels a finding in her favor. (See Spurgeon v. Drumheller (1985) 174 Cal.App.3d 659, 663.)
Clifford has not met her burden. She suggests in her reply brief that "the record unequivocally shows that the risk of loss and delay is substantial . . . ," but she fails to follow up her suggestion with a summary of evidence to support it. Clifford refers to approximately 23 non-sequential pages of clerk's transcript to support her statement that "most of the attorney hours were compensated at hourly rates charged for non-contingent services," but she does not claim that evidence on those pages would compel a finding that the fees should have been enhanced. In any event, block page references to the record are inadequate to permit an appellate court to evaluate facts that allegedly support the appellant's position. (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.)
Further, it is Clifford's burden on appeal to show that the assigned error resulted in a miscarriage of justice. (Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 83.) To carry this burden, appellant must demonstrate that it is probable that she would have obtained a more favorable result in the absence of the alleged errors. (People v. Watson (1956) 46 Cal.2d 818, 836; Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) When the issue is an evidentiary one, as it is here, an appellant cannot carry her burden without a summary of the particular circumstances of the case and references to the record where the evidence of such circumstances may be found. (See Paterno v. State of California, supra, 74 Cal.App.4th at pp. 105-106; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) We conclude that Clifford has failed not only to meet her burden to
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