60 Cal.App.5th 896
Cal. Ct. App.2021Background:
- In 2016 Marrero (age 20) drove under the influence and caused a crash that seriously injured two Irish nationals; he pleaded guilty to DUI causing bodily injury.
- The victims recovered $1,499,900 in a civil settlement; they paid their lawyer Gary Sernaker a 25% contingency fee ($375,000) and reserved the right to seek reimbursement of attorney fees in Marrero’s criminal restitution proceedings.
- Prosecutor sought restitution for the $375,000 attorney fee and ~ $8,000 in travel expenses; Marrero objected, asserting the fee was unreasonable, that lodestar should control, that some work sought was for noneconomic damages or post‑settlement, and that Sernaker’s handwritten timesheets were illegible.
- Sernaker prepared after‑the‑fact handwritten timesheets claiming 339.5 hours and an hourly rate of $375 (≈ $125k by lodestar), but said time could not be reasonably allocated between economic and noneconomic claims.
- Trial court computed a lodestar (~$131,362) then adjusted upward accounting for contingency and other factors, awarded $350,000 in attorney‑fee restitution and included ≈ $8,000 travel expenses.
- On appeal the court affirmed the attorney‑fee award and denial of relief for illegible timesheets, but reversed the travel‑expenses award for lack of adequate notice and remanded on that narrow issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonableness of attorney fees as restitution | Restitution may be based on actual contingent fee paid; lodestar not required and other factors justify awarding (or nearly awarding) contingency fee | Fee excessive; court must apply lodestar, exclude fees for noneconomic recovery and post‑settlement work, and reduce award | Trial court permissibly used a hybrid lodestar + contingency analysis; $350,000 fee award was a rational, non‑arbitrary exercise of discretion (affirmed) |
| Denial of legible copies of Sernaker’s timesheets — due process challenge | Provided copies were used at hearing; prosecutor and court allowed cross‑examination; claimant argues no particular copy required | Illegible records prevented meaningful preparation and cross‑examination, violating due process | No due process violation: defendant had opportunity to cross‑examine and present evidence; court’s procedures were not fundamentally unfair (affirmed) |
| Inclusion of travel expenses without notice | Prosecutor had previously requested travel costs and could raise them at hearing; court could resolve them now for efficiency | Court had explicitly limited the hearing to attorney fees; including travel costs without giving defendant proper notice violated due process | Inclusion of travel expenses was fundamentally unfair given prior limitation; reversed as to travel expenses and remanded for a new hearing limited to that issue |
Key Cases Cited
- Ketchum v. Moses, 24 Cal.4th 1122 (Sup. Ct. 2001) (lodestar method and when adjustments are appropriate)
- PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084 (Sup. Ct. 2000) (fee‑shifting jurisprudence and lodestar principles)
- People v. Millard, 175 Cal.App.4th 7 (Cal. Ct. App. 2009) (trial court directed to apply lodestar to test reasonableness of contingency fee award in restitution context)
- People v. Taylor, 197 Cal.App.4th 757 (Cal. Ct. App. 2011) (lodestar not mandatory for victim restitution; contingency fee may be prima facie evidence of loss)
- People v. Fulton, 109 Cal.App.4th 876 (Cal. Ct. App. 2003) (attorney fees recoverable where fees are incurred to obtain economic losses; when fees cannot be divided, full reimbursement allowed)
- People v. Grundfor, 39 Cal.App.5th 22 (Cal. Ct. App. 2019) (trial court has broad discretion to use any rational method, including contingency fee, to calculate attorney‑fee restitution)
- People v. Cain, 82 Cal.App.4th 81 (Cal. Ct. App. 2000) (due process at restitution hearing: defendant must have notice and opportunity to challenge figures; procedures must not be fundamentally unfair)