Lead Opinion
Opinion
Defendants Tracy P. Teitler, Teitler Investments, and the Teitler Family Trust appeal from the order reducing their award of contractual attorney fees after they were awarded judgment in a real estate fraud and breach of contract action. We hold that the trial court properly applied equitable principles to reduce the fee award and therefore affirm the order.
FACTS AND PROCEDURAL HISTORY
In December 2003, Ezri Namvar bought a Beverly Hills apartment building owned by the Teitler Family Trust (the Trust). Namvar was a principal of EnPalm, LLC, and he soon after assigned his interest in the deal to EnPalm.
Appellants then brought a motion asking the court to award them more than $116,000 for contractual attorney fees. (Civ. Code, § 1717.) The motion did not include a calculation based on their lawyers’ time and hourly rates (the lodestar) and did not include attorney timesheets. Even so, the trial court applied both its familiarity with the case and the lodestar principles to calculate a reasonable attorney fee of $50,000. Stating that its calculation did “not end there,” the court went on to apply equitable principles to reduce appellants’ fees by 90 percent to $5,000 because Teitler intentionally lied under oath about various material matters. According to the court’s minute order, “this action may well have resolved in its early stages, formally or informally, had Tracy Teitler been more forthcoming as to the true facts, i.e, the vast majority of the time incurred by the Teitler Defendants’ counsel was not reasonably incurred.”
As far as we can tell from the transcript of that hearing, even though serious authenticity questions led the court to exclude Yadegar’s purported 10-year lease addendum, there was evidence that Teitler concealed the existence of two- and three-year addendums to his lease. The court said that Teitler’s testimony was “just woven with unbelievable statements, half truths, misrepresentations and flat-out lies from the beginning of the transaction all the way through. [][] Miss Teitler created this monster, I believe, and of anyone I think [she] really is the culpable party because she had within her power before the sale, during the escrow, right after the sale, the power and the ability and the obligation to disclose what was going on with this property, and her selective recollection and flat-out recollection [ric] and flat-out false statements I think are really what created this whole situation.” The court concluded by stating that absent Teitler’s actions, she “could have avoided the bulk of what transpired in this litigation; I think that’s what the evidence shows.” On appeal, appellants do not challenge the trial court’s lodestar figure of $50,000, but contend the court erred by reducing that amount by 90 percent as “punishment” for Teitler’s conduct.
Except as provided for by statute, compensation for attorney fees is left to the agreement of the parties. (Code Civ. Proc., § 1021.) Civil Code section 1717 (section 1717) provides that reasonable attorney fees authorized by contract shall be awarded to the prevailing party as “fixed by the court.” The trial court has broad discretion to determine the amount of a reasonable fee, and the award of such fees is governed by equitable principles. (PLCM Group, Inc. v. Drexler (2000)
With these rules in mind, it appears that the trial court acted within its discretion by reducing appellants’ fee award. After determining the lodestar figure of $50,000, the trial court was entitled to consider whether that sum should be reduced to a reasonable figure under the applicable equitable principles.
Appellants do not dispute these principles. In fact, they do not address them at all. Instead, they contend the trial court erred by reducing their attorney fees as punishment for Teitler’s litigation misconduct. Because this contention is unsupported both factually and legally, we disagree.
On the factual end of this equation, while appellants contend in their statement of facts that the trial court’s ruling was not supported by the evidence, they do not support that claim by way of argument, discussion, analysis, or citation to the record. In fact, as noted earlier, the record does not include any of the trial proceedings, leaving us no way to evaluate the merits of such a contention had it ever been made. This leads us to deem that issue waived, a determination that has profound consequences for appellants. Although they contend the trial court “punished” them, the trial court never used that term, and the state of the record, combined with the lack of argument on the issue, compels us to assume that Teitler engaged in conduct before and during the trial that rendered most of appellants’ claimed attorney fees unnecessary. (Amato v. Mercury Casualty Co. (1993)
First, it is arguable that Graham is not even applicable because it arose in a far different factual setting under an entirely separate fee statute. Second, even if Graham’s principles apply to contractual fee awards, appellants have both misread and misapplied that decision. Instead, as set forth below, we conclude that the principles to be derived from Graham are in fact consistent with the trial court’s proper application of equitable principles in this case.
Appellants’ conclusion is based on a cribbed interpretation of the facts, a selective reading of Graham, and a parallel failure to consider the decisions the Graham court relied on. As support for the proposition that attorney fees may not be used to punish defendants, Graham cited Ketchum v. Moses (2001)
The full quote from Graham came in the context of when and whether to enhance a fee award based on litigating the private attorney general fee issue, as opposed to the merits of the underlying action. After stating that an enhancement based on the results obtained was seldom justified in the litigation over the amount of fees, the court noted that fee litigation is usually far simpler than litigation on the merits. The court then said: “On the other hand, while attorney fees may not be used to punish defendants (Ketchum, supra,
Taken as a whole, Graham therefore stands for far more than appellants suggest. After reading the full quote and its underlying authority, it is best read as a prohibition against enhancing fee awards solely to punish a party, while permitting fee enhancements in the context of fee litigation itself if a party has engaged in litigation conduct that has caused the prevailing party to spend more time on a case than was otherwise reasonably necessary. Does this rule apply as a ground for reducing a prevailing party’s fee award, as happened here? The Edgerton court said it does: “Once the lodestar amount is determined, the court may consider a variety of other factors justifying augmentation or reduction of the award.” (Edgerton, supra, 83
DISPOSITION
For the reasons set forth above, the attorney fee award is affirmed. Respondents shall recover their appellate costs.
Egerton, J.,
Notes
Appellants failed to include in the record the pleadings, the trial exhibits, any of the reported trial proceedings, or respondents’ written opposition to appellants’ attorney fee motion. Instead, we are limited to the statement of decision, appellants’ fee motion, the transcript of the hearing on that motion, and the court’s written order setting the amount of attorney fees. Although the statement of facts suffers from some incurable factual gaps as a result of appellants’ failure to include those items in the record, we were able to glean the essential facts and were therefore able to conduct a meaningful appellate review. (See Santa Clara County Environmental Health Assn. v. County of Santa Clara (1985)
Namvar was also a principal in Maram Holdings, LLC, which was a plaintiff below and is a respondent on appeal. Teitler Investments was also named as a defendant and is a party to this appeal. Neither the record nor the parties’ appellate briefs shed any light on the roles those two entities played in the relevant transaction.
We say presumably because the pleadings are not in the appellate record and the parties have not described the causes of action in their appellate briefs. It appears that various related cross actions were also filed, but they were dismissed before judgment was entered. We will sometimes refer to the Trust, Teitler, and Teitler Investments collectively as appellants, and to EnPalm and Maram Holdings collectively as respondents.
The trial court’s statement that it had fixed a “reasonable” lodestar sum of $50,000 appears to have caused a mistaken belief that the trial court was somehow barred from going on to reduce that amount under equitable principles. First, as PLCM noted, the court can determine a reasonable lodestar fee (based on the apparent reasonable amount of hours and a reasonable hourly rate) and then proceed to adjust it downward by way of equitable principles. (PLCM, supra, 22 Cal.4th at pp. 1095-1096.) Second, because the trial court ultimately determined that Teitler’s conduct meant that most of the time incurred by appellants’ counsel was not reasonable, it appears to us that this so-called equitable calculation in fact occurred as part of the first step described in PLCM, where the trial court determines the lodestar fee by determining the reasonable, not actual, number of hours expended by counsel for the prevailing party.
We therefore agree with the dissent’s rejection of a rule that would allow a trial court to reduce a prevailing party’s contractual attorney fees for purely subjective reasons, such as its views on the merits of a case, or antipathy toward a party, her counsel, or counsel’s litigation strategy. Nor do we intend that fees may be reduced solely to punish a party for such reasons. As just discussed, our holding is based solely on the undisputed finding that, given how the case unfolded at trial, the bulk of appellants’ fees was unnecessary. The dissent itself implicitly recognizes the propriety of this factor when it cites statutory attorney fee decisions such as Harman v. City and County of San Francisco (2007)
We disagree, however, with the dissent’s contention that because equitable considerations such as a party’s litigation conduct may not be used when determining who prevailed at trial (Hsu v. Abbara (1995)
Code of Civil Procedure section 1021.5 gives a trial court discretion to award attorney fees to the successful party in an action that resulted in enforcement of an important right affecting the public interest, so long as a significant public benefit was realized, the burden of private enforcement makes the award appropriate, and the interests of justice show that the fees should not be paid from any recovery.
Of course, if Graham and the other decisions it cites do not apply because they are not interpreting section 1717, then presumably in a contractual attorney fees case we should also disregard Graham’s statement about not using fee awards to punish a party.
We disagree with the dissent’s contention that PLCM’s discussion about the procedure and factors used to determine contractual attorney fees should not be given much weight because it was no more than a general recitation of the applicable principles in an unrelated factual and legal context. We are aware of no decisions that cast doubt on the principles announced in PLCM. Because the Supreme Court in PLCM relied on those principles to resolve the question whether a contractual attorney fee award was reasonable (PLCM, supra, 22 Cal.4th at pp. 1094-1096), that decision is binding on us and we may not ignore its teachings. (California Coastal Com. v. Office of Admin. Law (1989)
Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Dissenting Opinion
I respectfully dissent from the result reached by the majority in this case. I agree with the recitation of the general principles that govern the determination of the appropriate amount of attorney fees to be awarded pursuant to Civil Code section 1717.
My analysis necessarily begins with the reasons the trial judge gave to explain why he first reduced the fees from $100,000 to $50,000 and then from $50,000 to $5,000. The appellants initially submitted a motion for award of over $100,000 in attorney fees. In accordance with the standard procedure, the trial judge first determined that the defendants/appellants were the prevailing parties for purposes of the contractual attorney fees award. The trial judge then stated that he considered the motion and determined the lodestar amount for attorney fees to be $50,000, based upon his familiarity with the case and with lodestar principles. Nevertheless, the trial judge went further and reduced the fees to $5,000. Because the reasons given by the trial judge are the cause of this appeal and the present discussion between the majority and this dissent, I set them out here in their entirety. This was the explanation provided by the trial court for his reduction of the fees:
“The Court: Well, the problem with Miss Teitler has been that her testimony was just woven with unbelievable statements, half truths, misrepresenations and flat-out lies from the beginning of the transaction all the way through.
“Miss Teitler created this monster, I believe and of anyone I think Miss Teitler really is the culpable party because she had within her power before the sale, during the escrow, right after the sale, the power and ability and the obligation to disclose what was going on with this property, and her selective recollection and flat-out recollection and flat out false statements I think are really what created this whole situation.
“Whether it was well, she wasn’t really untruth about that, she was untruthful about other things. Anyone would have been on any reasonable type of notice that had been Miss Teitler’s obligation could have avoided the bulk of what transpired in this litigation; I think that’s what the evidence shows.”
Given this explanation for the fee reduction, the second reduction of fees from $50,000 to $5,000 was an abuse of discretion. In his own words, the second reduction in the fee was based on his assessment that Tracy R Teitler, although she was the prevailing party, was also “the culpable party.”
This responsibility does not include giving the trial judge the authority to decide in a section 1717 contractual fee award case that, regardless of the quality of the legal services provided or the appropriateness of the hourly charges requested, the fee award can be reduced below an amount equal to the fair market value of the services rendered, especially when based on the fact that the judge believes the prevailing party’s behavior caused the litigation or that the prevailing party “could have avoided” the litigation or some other subjective assessment about the merits of the litigation. The judge here believed that Teitler lied under oath and lied about the underlying transaction and for that reason should not receive the lodestar amount of attorney fees as the prevailing party. Although trial judges have considerable discretion, it does not extend as far as the majority sanctions. There are other circumstances, such as fees awarded in “private attorney general” litigation where such subjective determinations are appropriate. This is not such a case.
The majority says appellants do not dispute the general principles regarding the determination of contractual attorney fees. This is most likely the case because the appellants, as well as the author of this dissent, agree with the statement of general principles. The majority states that the appellants’ contention is that the trial court erred by reducing their attorney fees as punishment for Teitler’s litigation misconduct. The majority then suggests that this contention is unsupported “factually and legally.” (Maj. opn., ante, at p. 775.) The entire factual record needed for appellants’ contention is contained in the remarks of the trial judge. This is the only record of the reasons for the second reduction. The point made in this dissent is not that the trial judge’s conclusions about the behavior of the Teitler was inaccurate. A careful review of the entire record of the proceedings may well reveal that the judge’s impression of Teitler’s credibility and other matters was accurate. The point of this dissent is that, even if the judge’s impressions were accurate, the judge still does not have the authority to reduce the fee for the reasons given in this case. I will not quibble further with the majority about the facts; the record speaks for itself. The majority frames the issue as involving an evaluation of whether attorney fees were “unnecessary.” This is too simplistic a formulation of the issue as the balance of this dissent will address.
The explanation of my disagreement begins with a careful look at the scope of the discretion afforded to the trial judge in making the attorney fee decision. In California, “parties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract. [Citations.]” (Xuereb v. Marcus & Millichap, Inc. (1992)
Application of Section 1717—Determining the Fee Amount
The first step in the section 1717 analysis is the determination of the prevailing party.
Even though the law is clear that an “attack on the ethics and character of every party who seeks attorney fees under section 1717” is somehow inappropriate in determining the prevailing party (a particularly equitable determination), the majority takes the position that this factor is nevertheless appropriate in the decision to reduce a lodestar amount. I believe the logic is inescapable that, if you cannot use this type of
Determination of Reasonable Fee (Lodestar Method)
The “lodestar” or “touchstone” method is the approved method to decide the actual amount of attorney fees to be awarded under section 1717. The lodestar method for calculating an award of attorney fees requires the trial court to first determine a touchstone or lodestar figure based on a careful compilation of the time spent and reasonable hourly compensation for each attorney. The trial court may then augment or diminish the touchstone figure by taking various relevant factors into account. (Press v. Lucky Stores, Inc. (1983)
“A frequently alluded to and illustrative summary of the multitude of factors which the trial court may and should consider in making its award is found in Berry v. Chaplin [(1946)]
Increasing the Lodestar—Use of a Multiplier
The factors above or any other relevant factors may be used to determine whether the skill and expertise of counsel justify a multiplier in calculating an attorney fee award. The question to be answered is whether the litigation required extraordinary legal skill or whether there are other factors justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. (Robbins v. Alibrandi (2005)
Decreasing the Lodestar Amount—Use of a Negative Multiplier
In addition to the familiar recital of factors, cases identify numerous additional valid reasons to reduce the lodestar amount:
—The initial lodestar calculation should exclude “ ‘ “hours that were not ‘reasonably expended’ ” ’ in pursuit of successful claims.” (Harman v. City and County of San Francisco (2007)158 Cal.App.4th 407 , 417 [69 Cal.Rptr.3d 750 ], quoting Hensley v. Eckerhart (1983)461 U.S. 424 , 434 [76 L.Ed.2d 40 ,103 S.Ct. 1933 ].)
—Time spent on services which produce no tangible benefit for the client is not time reasonably spent. (Meister v. Regents of University of California (1998)67 Cal.App.4th 437 [78 Cal.Rptr.2d 913 ].)
—If a fee request appears unreasonably inflated, the trial court may reduce the award or deny it altogether. (Meister v. Regents of University of California, supra,67 Cal.App.4th at p. 448 .)
—Hours expended on litigation after the plaintiffs had rejected an informal settlement offer that was more than the amount ultimately recovered can be considered unreasonable. (Meister v. Regents of University of California,*785 supra, 67 Cal.App,4th at p. 449 [“plaintiff’s attorneys achieved nothing by continuing to expend their time after [having rejected such] offer. The trial court’s decision [to not allow recovery for hours expended after the settlement offer] came within the lodestar framework because it was based on the [trial] court’s assessment of whether the hours which plaintiff’s attorneys claimed to have expended on this litigation were ‘reasonably spent’ ”].)
—The court may determine the fee requested is duplicative or excessive. (Graciano v. Robinson Ford Sales, Inc. (2006)144 Cal.App.4th 140 [50 Cal.Rptr.3d 273 ]; Cruz v. Ayromloo (2007)155 Cal.App.4th 1270 , 1279 [66 Cal.Rptr.3d 725 ].)
—Although the lack of success of the attorney does not ordinarily justify a complete denial of compensation, the lack of a favorable result may very well have a significant bearing on the amount of compensation for the services which were rendered.4 (Hensley v. Eckerhart, supra,461 U.S. 424 ; Mann v. Quality Old Time Service, Inc. (2006)139 Cal.App.4th 328 , 343 [42 Cal.Rptr.3d 607 ].)
The majority adds an additional relevant factor: “[t]he ‘necessity for and the nature of the litigation.’ ” (Maj. opn., ante, at p. 774, citing Kanner v. Globe Bottling Co. (1969) 273 Cal.App.2d. 559, 569 [
This case does not fit that scenario. There is nothing in the record to indicate any of the legal work undertaken by appellants’ counsel was “unnecessary.” The only suggestion that the legal work was “unnecessary” comes from the trial judge’s opinion that the case could have ended sooner had Teitler, not “lied” or been more forthcoming, etc. The majority position, if correct, would allow a trial judge to reduce fees to a nominal amount in any case where he felt that the prevailing party behaved badly or could have avoided the litigation entirely. If it existed, this authority would be quite a boon to judges and could drastically reduce future litigation in California because the scenario (one side is lying and could avoid the litigation) is likely to be true in a significant percentage of litigation filed in the California courts.
Although case law does not discuss this issue, there is a strong policy reason why the trial court should not be able to reduce contractual attorney fees because of a dislike of a parties, their tactics, the strength of their case or other such subjective factors. In litigation between private parties who have agreed to an attorney fees provision, it seems inappropriate to allow a judge to intrude into the private commercial agreement between the parties and insert subjective assessments into the fee calculation. Parties entering into contractual fee arrangements are willing to let the trial court determine the prevailing party and are interested in the services of the trial court only to act as an expert in the quality of the legal services provided in the lawsuit and to provide an unbiased and neutral evaluation of the fair market value of the attorney fees.
Lodestar Adjustment in Private Attorney General Cases
Originally adopted by the California Supreme Court in Serrano v. Priest (1977)
“The significant benefit criterion calls for an examination whether the litigation has had a beneficial impact on the public as a whole or on a group of private parties which is sufficiently large to justify a fee award. This criterion thereby implements the general requirement that the benefit provided by the litigation inures primarily to the public.” (Beasley v. Wells Fargo Bank (1991)
In Serrano III, the Supreme Court held the lodestar method was fundamental to arriving at an objectively reasonable amount of attorney fees awarded under a private attorney general theory. “At almost the same time Serrano III was decided, the Legislature enacted [Code of Civil Procedure] section 1021.5,[
Factors to be considered in determining attorney fees in a private attorney general case differ from those in the contractual fee cases. Among the factors to be considered are: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing law suits
In Graham, supra,
The majority suggests that this “dissent itself implicitly recognizes the propriety of this [necessity] factor, when it cites statutory attorney fee decisions such as Harman v. City and County of San Francisco[, supra,]
Misinterpretation of Major Cases
The majority opinion states that appellants’ “conclusion is based on a cribbed interpretation of the facts, a selective reading of Graham, and the failure to consider the decisions the Graham court relied on”
In the related case of Serrano IV, supra,
Another leading attorney fee case is Ketchum, supra,
Ketchum then held a multiplier for exceptional representation should only be used when “when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation. Otherwise, the fee award will result in unfair double counting and be unreasonable. Nor should a fee enhancement be imposed for the purpose of punishing the losing party.” (Ketchum, supra,
The PLCM court described the fee determination process as follows: “The superior court calculated the attorney fees to be awarded PLCM based on their market value, specifically, the reasonable in-house attorney hours multiplied by the prevailing hourly rate in the community for comparable legal services.” {PLCM, supra, 22 Cal.4th at p. 1094, italics added.) Citing Serrano III, the PLCM court observed next that the “lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. [Citation.]” (Id. at p. 1095, italics added.) PLCM then listed the familiar factors for a court to consider when adjusting the lodestar, including the majority’s essential “ ‘other circumstances in the case.’ ” (Id. at p. 1096.)
The value of PLCM’s statement of the rules however, is limited because PLCM itself involved a straightforward application of the lodestar approach and there was no reduction of the lodestar amount based on factors such as those used by the trial court in this case. For that reason alone, PLCM does not support the majority’s argument in this appeal. The majority characterizes this argument as saying that “PLCM’s discussion . . . should not be given
The majority draws the wrong conclusions from the Graham case as well. As discussed above, in Graham the California Supreme Court held that, in concept, the “catalyst theory” was sound when determining fees under Code of Civil Procedure section 1021.5. Rendering this opinion, the Graham court held that “fees for fee litigation” should not be enhanced because of the exceptional result in the underlying litigation or exceptional skill exhibited by an attorney, the reason being that fee litigation, for the most part, is simpler than litigation on the merits. They added that “ ‘while attorney fees may not be used to punish defendants (Ketchum, supra,
The majority suggests this language creates a “prohibition against enhancing fee awards solely to punish a [losing] party,” while permitting a fee enhancement if the “litigation conduct [of the losing party] caused the prevailing party to spend more time on a case than was otherwise reasonably necessary.” (Maj. opn., ante, at p. 111.) The majority next asks “[d]oes this rule apply as a ground for reducing a prevailing party’s fee award, as happened here?” (Id. at p. 111.) The majority then answers its own question as follows: “The Edgerton court said it does: ‘Once the lodestar amount is determined, the court may consider a variety of other factors justifying augmentation or reduction of the award.’ (Edgerton, supra,
The majority should not find such comfort in the Edgerton holding. First, the Edgerton case was a Code of Civil Procedure section 1021.5 fee award case. Second, the Edgerton quote itself is nothing more than a restatement of the general rule; it does not sanction the type of fee reduction which occurred in this case. More specifically, in Edgerton v. State Personnel Bd., supra,
The majority makes the blanket statement that, “[although Edgerton, Graham, and Ketchum all involved statutory fee awards, their conclusions are consistent with the use of equitable principles to adjust a prevailing party’s lodestar fees under section 1717.” (Maj. opn., ante, at p. 778.)
CONCLUSION
The trial court has a duty to exercise its discretion in determining a reasonable attorney fee award, and a case should be remanded for a redetermination of the award if it is evident that the court’s ruling was not an exercise of discretion, but the consequence of an erroneous view of the court’s own power. (Contractors Labor Pool, Inc. v. Westway Contractors, Inc. (1997)
Appellants’ petition for review by the Supreme Court was denied July 16, 2008, S164180.
All further undesignated statutory references are to the Civil Code.
The initial identification of a prevailing party is critical because although a trial court has considerable discretion in fixing the amount of attorney fees awarded to a prevailing party in an action on a contract, a court may not completely deny fees where a contract calls for their payment. (Texas Commerce Bank v. Garamendi (1994)
I located additional federal cases identifying factors courts use to reduce a fee award to adjust, for example, for duplicative work, for lack of success on certain issues, or the like. (See, e.g., Bd. of Educ. of Frederick County v. I.S. (D.Md. 2005)
In federal cases, “the favored procedure is for the district court to consider the extent of the plaintiff’s success in making its initial determination of hours reasonably expended at a reasonable rate, and not in subsequent adjustments to the lodestar figure.” (Gates v. Deukmejian (9th Cir. 1992)
This language is found in only three reported cases. Kanner v. Globe Bottling Co, supra,
“Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code.” (Code Civ. Proc., § 1021.5, italics added.) Attorney fees awarded to a public entity pursuant to this section shall not be increased or decreased by a multiplier based upon extrinsic circumstances, as discussed in Serrano III, supra,
Graham is a Code of Civil Procedure section 1021.5 fee case and cites as authority on the determination of the amount of fees: Serrano III, Serrano TV, Ketchum v. Moses (2001)
An additional footnote in Serrano TV contains this relevant language: “In its amicus brief in support of defendants, Los Angeles County argues that fee awards should include compensation for fee-related services only if the court finds that the losing party has in bad faith sought to dissipate the award ‘through recalcitrance and automatic appeals.’ (Citing Keown v. Storti (E.D.Pa. 1978)
At this point in the opinion PLCM cites Melnyk v. Robledo (1976)
In support of this suggestion, the majority cites PLCM, International Industries, Inc. v. Olen, supra,