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Gorman v. Tassajara Development Corp.

October 6, 2009; as modified November 4, 2009

JOHN C. GORMAN ET AL., PLAINTIFFS AND APPELLANTS,
v.
TASSAJARA DEVELOPMENT CORPORATION, ET AL., DEFENDANTS AND RESPONDENTS.



(Santa Clara County Super. Ct. No. CV011261). Trial Judge: The Honorable William J. Elfving.

The opinion of the court was delivered by: Rushing, P.J.

CERTIFIED FOR PUBLICATION

I. INTRODUCTION

In this appeal, plaintiffs assert that the trial court did not award them enough attorney fees and costs against their former general contractor and that the court should have explained its awards.

In November 1999, defendant Tassajara Development Corporation (usually "contractor") promised by written contract to serve as general contractor for the construction of a residence for plaintiffs John Gorman and Jennifer Cheng (collectively "plaintiffs"), husband and wife. The contract provided in part: "In the event of litigation between the parties, or if a party becomes involved in litigation because of wrongful acts of the other party, the prevailing party will be entitled to recover reasonable attorneys‟ fees."

Gorman is an attorney who is the chief executive officer, chief financial officer, president, and secretary of the Law Firm of Gorman & Miller, PC, a professional corporation (usually "the Gorman firm"). In December 2003, Gorman initiated this lawsuit by filing a complaint on behalf of plaintiffs against numerous defendants, including contractor, alleging the defective construction of the residence. In May 2006, plaintiffs entered into a global settlement with a number of defendants, including contractor. Part of that settlement provided, "it is agreed that Plaintiffs shall be deemed to be the "prevailing parties‟ in the Action solely for the purpose of invoking plaintiffs‟ rights to recover attorneys‟ fees and costs pursuant to the terms of the Construction Contract and that plaintiffs are entitled to recover costs as authorized by law as if they were prevailing parties in the Action."

Plaintiffs ultimately requested attorney fees of $1,350,538.83*fn1 and costs in excess of $266,561.96, including the fees and costs for filing their motion. Almost half these fees were billed by Gorman personally. After a contested hearing on their motion, in a 27-word order the trial court awarded plaintiffs "reasonable attorneys‟ fees of $416,581.37 and reasonable costs of $142,432.46." The trial court subsequently denied plaintiffs‟ request for a statement of decision and their motions for a new trial and for reconsideration of its order. Plaintiffs have appealed from the resulting judgment. As we will explain below, despite close study of the record, including the motion and opposition, we are unable to surmise a reasonable explanation for either of the amounts awarded. Given the apparent arbitrariness of the awards, we will reverse the judgment and remand for further proceedings.

II. PROCEDURAL HISTORY

A. The Litigation and Settlement

On November 17, 1999, plaintiffs entered into a contract signed by James Simmons on behalf of contractor whereby contractor would serve as a general contractor and construct a residence for plaintiffs in Los Altos Hills at a cost of $1,501,520, subject to increases or decreases specified in written change orders.

During the construction, plaintiffs expressed their concerns to contractor about the lack of progress and the materials used. After they took occupancy of the house on December 27, 2002, they discovered a number of problems with the construction. On December 13, 2003, Gorman and the Gorman firm filed a complaint in the Santa Clara County Superior Court on behalf of himself and his wife alleging defective construction, naming as defendants contractor and 23 other businesses and individuals who allegedly served as general contractors, subcontractors, and suppliers of material for the construction of the residence.

On March 2, 2004, contractor filed a cross-complaint seeking indemnity from the other defendants in the case. It also alleged that plaintiffs had breached the construction contract by not paying what they owed.

A first amended complaint was filed on May 19, 2004, by Gorman. This complaint expanded plaintiffs‟ claims to include professional malpractice by David Takamoto, the architect plaintiffs hired on February 2, 1999, and by Shawn Massipour and A.S. E. Consulting, structural engineers employed by Takamoto.

In July 2004, the Gorman firm associated the Law Firm of Bowman and Brooke, LLP (the Bowman firm), with Daniel Smith doing much of the subsequent work of that firm.

A stipulation filed July 26, 2004, agreed to a special master to coordinate discovery and conduct settlement conferences. Upon the death of the special master, the parties agreed to a new special master by stipulation filed September 22, 2004. The special masters eventually issued 14 pretrial orders, each approved by Judge Elfving. The first order, filed July 26, 2004, provided, among other things, that all defendants were deemed to have filed cross-complaints for indemnity and contribution against each other. It also provided for creation of a document depository, and "[c]opying services will be at each party‟s expense."

In July 2005, at Smith‟s recommendation, plaintiffs retained Attorney Semha Alwaya to render opinions about insurance coverage.

A 50-page second amended complaint was filed on November 29, 2005 by Gorman and Smith, naming the original 24 defendants and about 26 more.

In May 2006, Attorney Bruce Janke appeared at several depositions on behalf of plaintiffs.

After four settlement conferences, on October 15, 2004, May 13, 2005, July 13, 2005, and July 27, 2005, and mediation on March 6, 2006, March 17, 2006, and May 15, 2006, plaintiffs reached a settlement with 36 of the defendants, including contractor, in a written agreement dated May 15, 2006. The agreement is 13 pages, not including signatures. Under the settlement, contractor agreed to make an initial payment to plaintiffs of $2,430,000 (not including discovery sanctions ordered against one defendant) by June 26, 2006, in exchange for a mutual release of all claims.

As stated in the introduction, the agreement provided that plaintiffs were deemed the prevailing parties for purposes of recovering attorney fees under the construction contract and costs.*fn2 The agreement also provided that it "does not include or constitute an admission of any fact, or of liability or fault by any Party regarding any fact, claim, allegation, issue of law or violation of law. . . . This agreement may not be used as evidence of any wrongdoing, misconduct or liability by any Party or anyone else."

An exhibit attached to the settlement agreement and incorporated into it by reference reflected that contractor‟s contribution to the settlement is $994,000 (41 percent of the total), with 17 other sets of defendants paying to contractor the balance to be paid plaintiffs.*fn3

B. The Motion for Attorney Fees and Costs

To avoid repetition, we will summarize the procedural history in this section and will summarize their arguments later. On July 31, 2006, plaintiffs filed a "Motion for Attorneys‟ Fees and Costs" from contractor. The notice of motion and accompanying memorandum of points and authorities sought recovery of attorney fees and costs of $1,729,391.35, without breaking down this total. The motion was accompanied by a memorandum of costs (signed by Craig Hansen, an associate attorney in the Gorman firm) that itemized costs of $266,561.96, while an attached declaration, the first by Hansen, explained that plaintiffs were seeking total costs of $343,516.72.*fn4 The declaration further explained that this total included costs of $342,319.20 incurred prior to settling the case in May 2006, and an additional $1,197.49 in post-settlement costs in preparing its motion for fees and costs and in resisting contractor‟s motion for discovery regarding legal fees. The components of the presettlement costs were $68.74 for attorney Alwaya, $6,2873.76 for the Bowman firm, and $335,966.73 for the Gorman firm.

The hearing, initially set for August 24, 2006, was continued on August 10, 2006 at contractor‟s request by Judge Elfving to October 3, 2006, with their opposition due by September 19, 2006. Judge Elfving was unavailable on October 3, 2006, so Judge Ward granted the request of the parties to continue the hearing until Judge Elfving could hear it on October 19, 2006.

On September 19, 2009, contractor filed a document entitled "Tassajara Development Corporation‟s opposition to plaintiff‟s [sic] motion for attorney‟s fees and costs; or in the alternative motion to tax fees and costs."*fn5 (Capitalization omitted.) Plaintiffs filed a response to this opposition.

At the hearing on October 19, 2006, that lasted less than an hour, the court took the motion under submission without asking any questions of the parties or expressing any agreement or disagreement with any of the points made in the motion or opposition.*fn6

The following day it issued the 27-word order awarding fees and costs described in the introduction above (ante, p. 2).*fn7 The trial court did not expressly disapprove of any particular components of plaintiffs‟ claims as unreasonable or unnecessary.

On October 30, 2006, plaintiffs submitted a written request for a statement of decision asking the court to answer 29 questions, which was opposed by contractor. On November 6, 2006, without a hearing on plaintiffs‟ request, the court issued an order denying the request without stating any reasons.

Meanwhile, on November 3, 2006, plaintiffs filed a notice of intention to move for a new trial on the attorney fee award and a motion to reconsider, modify, or clarify the court‟s award. Contractor filed opposition. After a hearing on November 30, 2006, the following day the court filed an order denying plaintiffs‟ motions without stating any reasons. The court thereafter entered a judgment for attorney fees and costs in favor of plaintiffs as awarded by its earlier order.

III. PLAINTIFFS'PROCEDURAL OBJECTIONS

Before reaching the merits of the trial court‟s awards, we consider whether the trial court was required by statute or case law to provide a statement or some other explanation of its decision, whether plaintiffs timely requested a statement of decision, whether the trial court erred in not expressly ruling on evidentiary objections, and whether contractor was required to file a formal motion to tax costs.

A. The Need for a Statement of Decision

Plaintiffs claim the trial court erred by not providing a statement of decision in response to their request. Plaintiffs did not file a written request for a statement of decision before the October 19, 2006 hearing on their motion for attorney fees and costs.

They did not orally request a statement of decision at the hearing. They filed a written request 10 days after the court issued its order on their motion.

Code of Civil Procedure section 632*fn8 provides in part: "In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision."

(1) Is a Statement of Decision Required on a Motion for Attorney Fees?

Plaintiffs assert that the hearing on their motion for attorney fees in this case qualifies as a "trial" under section 632. The California Supreme Court has indicated otherwise in two cases. In Maria P. v. Riles (1987) 43 Cal.3d 1281 (Maria P.), the defendants-appellants challenged attorney fees awarded under the private attorney general theory codified in section 1021.5. Among other things, the appellants in Maria P. complained that the trial court had erred by failing to issue a statement of decision under section 632. The high court observed: "Cases decided under section 632 generally have held that a statement of decision is not required upon decision of a motion. (See, Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019, 1026; In re Marriage of Simmons (1975) 49 Cal.App.3d 833, 836 . . . [findings of fact are only required on issues joined by the pleadings where the decision of the court following the findings is a judgment]; 7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 371, pp. 377-378.) Courts have created an exception for proceedings involving custody of children (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792 . . . ; In re Rose G. (1976) 57 Cal.App.3d 406, 418 . . .). However, we have discovered no case requiring a statement of decision for an order on a motion for attorney fees."

The court‟s analysis, however, did not stop at this point. The court went on to observe that its prior decisions "require the trial court first to determine a touchstone (or lodestar) figure based on the time spent and reasonable hourly compensation for each attorney involved in the case" (Maria P., supra, 43 Cal.3d at p. 1294), though the trial court has discretion to make upward or downward adjustments. The court noted, "The court‟s failure to specify in its written order the basis of its calculation of the award, and the absence in the appellate record of a transcript of the fee hearing or a settled statement of that proceeding (Cal. Rules of Court, rule 4(e)) make it impossible for us to determine whether the trial court based its award on the lodestar adjustment method." (Id. at p. 1295.) However, the court concluded that reversal was not warranted because the appellants had failed to carry their burden of providing a record adequate for review by way of settled statement. (Id. at pp. 1295-1296.)

The California Supreme Court returned to this topic 14 years later in Ketchum v. Moses (2001) 24 Cal.4th 1122 (Ketchum). At issue on appeal was whether the trial court had properly calculated the attorney fees due after it granted a special motion to strike a complaint under section 425.16. The trial court had doubled the lodestar amount in making its award. In the course of considering the propriety of this award, the high court stated on page 1140: "Ketchum also contends that the superior court erred by failing to provide a "reasoned explanation‟ for denying his objections to specific items in the billing records. The superior court was not required to issue a statement of decision with regard to the fee award. (See Maria P. v. Riles, supra, 43 Cal.3d at p. 1294.)"

As in Maria P., the court‟s analysis did not stop there. The court continued as follows on page 1140. "Moreover, although Ketchum opposed the motion for attorney fees, he did not request a statement of decision with specific findings. " "All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown." ‟ (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)" As in Maria P., the court concluded that the appellant had failed to provide an adequate record on appeal to review the fee award. (Ketchum, supra, 24 Cal.4th at pp. 1140-1141.) The award in Ketchum was reversed on other grounds, but not due to the lack of a statement of reasons.*fn9

Plaintiffs rely on footnote 6 in Mandel v. Lackner (1979) 92 Cal.App.3d 747 (Mandel) at page 759 (disapproved on another ground by Serrano v. Unruh (1982) 32 Cal.3d 621, 630, fn. 12 (Serrano IV)), a case predating Maria P., as establishing that an attorney fee determination is a "trial." Mandel did not go this far, however. The court observed that formal findings would be mandatory on the issues of the time and unit-value factors of attorney fees if requested by a party upon the trial of a question of fact. The court stated in this footnote, "Such "trial‟ was conducted on respondent‟s motion for attorneys‟ fees, and formal findings were requested, but they are not ordinarily required in proceedings upon a motion. (In re Marriage of Simmons (1975) 49 Cal.App.3d 833, 836.)" (Mandel, supra, 92 Cal.App.3d at p. 759, fn. 6.) The Mandel court declined in this footnote to reach the issue of whether findings were required, as noted by Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1348 (Rebney).

Rebney, decided before Ketchum, concluded that no statement of decision under section 632 was required by Maria P. or Mandel, though the trial court had issued one. "The record need only show that the attorney fees were awarded according to the "lodestar‟ or "touchstone‟ approach. [¶] The court‟s statement of decision satisfied this minimal requirement, as it expressly stated that the court had awarded fees based on lodestar amounts, with further consideration of counsel‟s contributions to the litigation. Nothing more was necessary. The court was not required to explain which of counsel‟s hours were disallowed, or how or whether any hours were apportioned. On appeal, we must infer all findings on these points in favor of the prevailing parties. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)" (Rebney, supra, 232 Cal.App.3d at p. 1349.)*fn10 Rebney went on to conclude in the alternative that if section 632 applied, the appellant "waived any error by failing to bring the claimed defects to the attention of the trial court after issuance of the statement of decision." (Id. at pp. 1349-1350.)

Some later opinions (all involving attorney fees awarded after a special motion to strike under § 425.16, subd. (c)) have interpreted Maria P. and Ketchum as holding that no statement of decision is needed after a hearing on a motion for attorney fees. (Compare Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1252 ["A statement of decision is not required regarding an award of attorney fees pursuant to a motion."] and Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1323 ["There is no requirement, however, that the trial court provide a statement of decision"]; with Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 342, fn. 6 ["Although a more detailed explanation would certainly have been helpful, a trial court is not required to issue a statement of decision with regard to a fee award, unless a party timely requests one."].)*fn11

As indicated above, the California Supreme Court‟s statements in Maria P. and Ketchum that an attorney fee award need not be explained in a statement of decision are, at best, alternative holdings, with those decisions resting equally on other grounds. It is notable that in neither case did the California Supreme Court reverse the attorney fee award due to lack of a statement of decision.

Plaintiffs seek to distinguish Maria P. as involving attorney fee rulings that are not intended, unlike the ruling here, to be entered as a judgment. We doubt the significance of this factual distinction, but we need not ponder this issue further in light of the timing of plaintiffs‟ request for a statement of decision.

(2) Was Plaintiffs' Request for a Statement of Decision Timely?

If we assume for the sake of discussion that the hearing in this case amounted to a trial within the meaning of section 632, it was a trial that was "concluded within one calendar day or in less than eight hours over more than one day." In such cases, according to the statute, "the request [for a statement of decision] must be made prior to the submission of the matter for decision." (Ibid.) A party‟s entitlement to a statement of decision depends on the party making a timely request. (In re Marriage of AnanehFirempong (1990) 219 Cal.App.3d 272, 280; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 980.)

Plaintiffs assert that the trial on this motion lasted longer than a day. They argue, relying on Gordon v. Wolfe (1986) 179 Cal.App.3d 162, that the trial included all judicial consideration of their motion, which involved 520 pages of briefing and evidence, from the time the motion was filed on July 31, 2006, through its continuances on August 10 and October 3 to the ruling on October 20, 2006, whether that consideration took place on or off the bench, and apparently during or after regular working hours. They suggest there was a three-month trial of this issue.

The same contention was rejected in In re Marriage of Gray, supra, 103 Cal.App.4th 974 at pages 978 and 979, a case cited by neither side, in the following thorough discussion. "Appellant argues that "when, as in the case at bar, the court is presented with volumes of evidence and documentation, and asked to consider a [31-]year marriage, and divide a community estate in excess of $3 [million] in a process that took more than a year to complete, it is inconceivable that trial lasted less than one day irrespective of the actual number of hours spent arguing the case.‟ However, in setting the time for a request for a statement of decision, section 632 does not speak to the complexity of issues in the case. Rather, it speaks to the time consumed in the trial of the matter. As we have said, appellant has failed to show that the trial court erred in making an express finding that the trial of this case lasted less than eight hours.

"Appellant relies on Gordon v. Wolfe (1986) 179 Cal.App.3d 162, 166 . . . where the court remarked, "Courts may have to count days, but they are not required to count hours and minutes under . . . section 632.‟ However, when the Gordon court made this remark, section 632 contained no reference to a trial lasting less than eight hours over more than one day. Rather, the statute referred only to a trial lasting less than one day. (Stats. 1981, ch. 900, § 1, p. 3425.)

"The status of section 632 when Gordon was decided, in 1986, and its subsequent amendment, were described by the court in Palm v. Schilling (1988) 199 Cal.App.3d 63 . . . , as follows: "At the time of trial, . . . section 632 obligated the court to issue a statement of decision, if one was requested, after "the trial of a question of fact by the court . . . ." In trials lasting more than one day, the request was required to be made within 10 days after the court‟s tentative decision. If the trial was concluded in less than a day, however, the request had to be made before the matter was submitted.

" "Problems arose when trials were conducted over a period of several days but actually consumed fewer than eight hours of court time. (See, e.g., R. E. Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal.App.3d 50 . . . ; Gordon v. Wolfe[, supra,] 179 Cal.App.3d 162 . . . , Mitchell v. County of Orange (1985) 165 Cal.App.3d 1185 . . . , and Architects & Contractors Estimating Service, Inc. v. Smith (1985) 164 Cal.App.3d 1001 . . . .) The Legislature has hopefully put an end to this semantic tempest by amending section 632, effective January 1, 1988, to provide that a request for statement of decision must be made before the matter is submitted where "the trial is concluded within one calendar day or in less than eight hours over more than one day . . . ." (Stats. 1987, ch. 207, § 1.)‟ (Palm v. Schilling, supra, 199 Cal.App.3d 63, 66-67, fn. 2.)

"In light of the 1987 amendment of section 632, Gordon's remark no longer states good law on this point. Rather, in light of the 1987 amendment to section 632, trial courts must keep track of the time of short cause matters. Although, at the time of trial in this case, no legal authority required the courtroom clerk to keep track of the time of trial in the minutes, in the future the courtroom clerk should keep track in the minutes so that the court, counsel, and the parties will know when a request for a statement of decision must be made."

In our case, the trial court rejected plaintiffs‟ request for a statement of decision without expressly adopting contractor‟s opposition that the hearing had lasted less than a half hour.

The 1987 amendment of section 632 equates a one-day trial with a trial taking eight hours over more than one calendar day. The clear implication is that an eight-hour trial is considered a one-day trial. The reality is that trial judges spend additional time off the bench preparing for hearings, researching the law, and reading motions and briefs, but the statute indicates an intent not to count that time as trial time. Otherwise the trial judge would have to submit time sheets to the parties in a case so they would know when to request a statement of decision. The parties may be expected to know and add up the time they have spent in court hearings on a case, but not how long the judge has considered the case outside of the courtroom. We reject plaintiffs‟ argument that judicial time off the bench should count in determining when to request a statement of decision. We conclude that their request, filed 10 days after the court had issued its order on their motion, was untimely and that they were not entitled to a statement of decision, even assuming for the sake of discussion that it would otherwise be necessary to prepare one for a hearing on a motion requesting attorney fees.*fn12

(3) Case Law Regarding Awards of Attorney Fees

Plaintiffs appear to contend that case law, apart from section 632, requires trial courts to provide some explanation of their rulings on requests for attorney fees.

It is true that the California Supreme Court has provided ample guidance to trial courts for determining awards of attorneys‟ fees. For example, Ketchum, supra, 24 Cal.4th 1122 explained its earlier decision in Serrano v. Priest (1977) 20 Cal.3d 25 (Serrano III) as follows at pages 1131 and 1132. "Under Serrano III, a court assessing attorney fees begins with a touchstone or lodestar figure, based on the "careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.‟ (Serrano III, supra, 20 Cal.3d at p. 48.) We expressly approved the use of prevailing hourly rates as a basis for the lodestar, noting that anchoring the calculation of attorney fees to the lodestar adjustment method " "is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts." ‟ (Id. at p. 48, fn. 23.) In referring to "reasonable‟ compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; "padding‟ in the form of inefficient or duplicative efforts is not subject to compensation. (See id. at p. 48.)

"Under Serrano III, the lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. (Serrano III, supra, 20 Cal.3d at p. 49.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. The " "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." ‟ (Ibid.)"

Ketchum proceeded to review how the Supreme Court, after Serrano III, has repeatedly emphasized the importance of using the lodestar calculation in its decisions in Serrano IV, supra, 32 Cal.3d 621, 624, 639; Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322; Maria P., supra, 43 Cal.3d 1281, 1294-1295; and PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM). (Ketchum, supra, 24 Cal.4th at pp. 1133-1134.)

PLCM, supra, 22 Cal.4th 1084, concluded, among other things, as to fees awarded under Civil Code section 1717 pursuant to a contractual agreement, "that the lodestar method, as applied to the calculation of attorney fees for in-house counsel is presumably reasonable, although in exceptional circumstances, the trial court is not precluded from using other methodologies." (Id. at p. 1097.)

Yet, as explained above, despite all this emphasis on trial courts beginning their attorney fees calculations with a lodestar amount, Ketchum also observed that the trial court in the case before it was not required to issue a statement of decision with respect to the fee award. (Ketchum, supra, 24 Cal.4th at p. 1140.)*fn13 None of these Supreme Court decisions required a trial court to provide an explanation of its decision on a motion for attorney fees. This precedent teaches trial courts how to think about claims for fees, not what to say in ruling on the claims.

None of the other cases cited by plaintiffs establishes as a general rule that trial courts must provide such an explanation. We have already distinguished Mandel v. Lackner, supra, 92 Cal.App.3d 747 above (on p. 11). In re Marriage of Cueva (1978) 86 Cal.App.3d 290 said nothing about the trial court providing an explanation. The problem in that case was that "there was nothing before the trial court disclosing services of such a nature and extent as to justify an attorney fee of $21,000." (Id. at p. 301.)

In Tilem v. City of Los Angeles (1983) 142 Cal.App.3d 694, the appellate court stated: "we have no way of determining how the trial court arrived at the figure of $15,000 for attorney fees in the state actions as against a total undifferentiated claim of $70,000. [¶] Since we have concluded that the matter must be returned to the trial court to redetermine the issue of damages, we think it appropriate to also provide the trial court an opportunity to redetermine the amount of litigation costs and set forth the reasons therefor." (Id. at pp. 711-712.) This reversal was not predicated on the absence of an explanation for the attorney fee award nor did the decision purport to establish a general rule requiring an explanation of all awards of attorney fees.

State of California v. Meyer (1985) 174 Cal.App.3d 1061 involved landowners seeking mandatory attorney fees under sections 1268.610 and 1235.140 following the state‟s abandonment of a condemnation action. While awarding some fees, the trial court declined to make any award for the fees involved in collecting attorney fees. (Id. at p. 1074.) The appellate court concluded that they were entitled to reasonable fees for their collection efforts and stated, "Since we cannot determine how the trial court arrived at the figure of $30,000 and since landowners are entitled to reasonable attorneys‟ fees for at least part of their efforts in opposing the motion to tax costs, we remand the issue of attorneys‟ fees to the trial court for clarification or redetermination of litigation costs and advise it set forth the reasons therefor." (Id. at p. 1074.) The reversal was based on an error in denying any collection fees. The opinion merely advised the trial court in that case to provide reasons on reconsideration.

Similarly, the issue in Moran v. Oso Valley Greenbelt Assn. (2001) 92 Cal.App.4th 156 was whether the trial court abused its discretion in declining to award attorney fees under Corporations Code section 8337 after finding that a corporation had wrongfully rejected a demand to produce its minutes for inspection. (Id. at p. 158.) The appellate court noted an inconsistency between this finding and its ruling and stated: "the court also, without explaining its decision either on the record or in its order, denied Moran recovery of attorney fees and costs. Although Corporations Code section 8337 does not require a written order explaining the court‟s decision, without any explanation of its reasoning, we cannot conclude this aspect of the court‟s decision had any reasonable basis. Perhaps the court did have a sound rationale, but we simply cannot reach this conclusion based on the order and the reporter‟s transcript of the court‟s decision. The decision is therefore subject to reversal." (Id. at pp. 160-161.)*fn14 Noting that an attorney fee award under the statute is discretionary, the court continued, "We do, however, encourage the trial court to consider all of the facts of a particular case and articulate its reasons (either on the record in open court or in a written order) for granting or denying such an award." (Id. at p. 161.) To the extent that the appellate court sought to generalize this last observation beyond this particular case, at most it applies to attorney fees sought under Corporations Code section 8337. It was not stated as a general rule for all decisions on requests for attorney fees.

Plaintiffs also assert that it is the federal rule that "district courts have a duty to explain their reasoning when ruling on a motion for attorneys‟ fees." Assuming that there is such a rule, plaintiffs acknowledge that it is not binding in a ...


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