(Los Angeles County Super. Ct. No. BC330749) APPEAL from a judgment and order of the Superior Court of Los Angeles County, Emilie H. Elias, Judge. Affirmed in part and reversed in part with directions.
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Brendan J. Collins and Greta F. Hunt, individually and on behalf of persons similarly situated, appeal a judgment awarding them part of the amounts billed by and paid to the City of Los Angeles (city) for emergency response costs. They also appeal a postjudgment order awarding attorney fees and costs payable to class counsel. Plaintiffs contend the trial court erred by (1) awarding prejudgment interest from the date of the parties' stipulation on the calculation of the amounts recoverable rather than the date of each class member's payment to the city; (2) ordering the city to pay only 60 percent of plaintiffs' reasonable attorney fees under Code of Civil Procedure section 1021.5 (section 1021.5), while requiring plaintiffs to pay the remaining 40 percent from their monetary recovery; (3) denying recovery for some of their claimed attorney and paralegal fees; and (4) allowing the city to retain unclaimed funds.
With respect to these four issues, we hold that: (1) the amounts awarded were certain or capable of being made certain by calculation within the meaning of Civil Code section 3287, subdivision (a) on the date of each payment by a class member and that prejudgment interest therefore began to accrue on each payment date; (2) the trial court had the discretion to order part of plaintiffs' reasonable attorney fees to be paid by the city under section 1021.5 and part of those fees to be paid from plaintiffs' monetary recovery, and plaintiffs have shown no abuse of discretion in such apportionment; (3) the court abused its discretion by denying fees claimed for certain tasks; and (4) the trial court did not abuse its discretion by allowing the city to retain unclaimed funds.
FACTUAL AND PROCEDURAL BACKGROUND
The city billed persons who had been arrested for driving under the influence of alcohol or drugs for the city's emergency response costs, pursuant to Government Code section 53150.*fn1 The police department created a billing statement, known as a response reimbursement report, for each incident stating the time spent by police officers responding to the incident and identifying the officers. The report set forth a dollar amount for the time spent by each officer, a total dollar amount for the incident and a "total requested" amount not exceeding $1,000.*fn2 The dollar amount stated for each officer was calculated based on an hourly rate including salary, fringe benefits, and overhead costs.
2. Complaint and Other Pretrial Proceedings
Collins filed a class action complaint against the city on March 23, 2005, seeking to recover part of the amounts billed by and paid to the city for emergency response costs. Collins and Hunt filed a third amended complaint on December 1, 2006, alleging that the city improperly demanded and collected amounts for fixed costs that did not arise directly from an emergency response to an incident.
The parties filed a joint stipulation on February 11, 2008, on the city's liability and calculation of the amounts recoverable. Under the terms of the stipulation, the city agreed not to challenge plaintiffs' right to recover amounts paid for overhead costs, while plaintiffs agreed not to seek recovery of amounts paid for fringe benefits. The parties defined recoverable overhead costs by reference to certain categories of costs set forth in a document attached to the stipulation entitled Cost Allocation Plan 26. They agreed that the exact percentage of the total costs claimed by the city for each incident attributable to overhead costs varied from year to year and was subject to proof or stipulation.*fn3 They agreed that individuals whose payment to the city included any overhead costs were entitled to recover that amount, subject to the city's defenses.*fn4
The trial court filed an order on February 22, 2008, certifying a class of persons who were billed by the city for emergency response costs associated with an arrest for driving under the influence during a specified period of time. The court found that plaintiffs' claims were for the specific recovery of property and that the Government Claims Act (Gov. Code, § 900 et seq.) therefore was inapplicable. The city petitioned this court for a writ of mandate, challenging the determination that the Government Claims Act was inapplicable. We concluded that plaintiffs' claims were for "money or damages" within the meaning of Government Code section 905 and that the Government Claims Act therefore applied. (City of Los Angeles v. Superior Court (2008) 168 Cal.App.4th 422, 425.) The trial court modified the class definition accordingly.
The parties filed a joint statement of issues to be decided by the trial court, a joint stipulations of facts, trial briefs and declarations in March and April 2010. The city agreed to withdraw its affirmative defense of accord and satisfaction in exchange for $26,500 to be paid from unclaimed funds due to class members. The parties stipulated to an overhead cost percentage for each year at issue. Although the actual percentage of total costs incurred by the city attributable to overhead costs varied depending on the rank of the officers involved, the parties stipulated to an average percentage applicable to all police officers for each year at issue.
Plaintiffs argued that prejudgment interest on the amounts to be awarded under the judgment accrued on the date of each payment to the city. The city argued that prejudgment interest accrued on the date of the parties' stipulation on overhead cost percentages, the date of the February 2008 stipulation on the city's liability and calculation of the amounts recoverable, or the date of an appellate court opinion, California Highway Patrol v. Superior Court (2006) 135 Cal.App.4th 488, clarifying what amounts were properly billed by the city.
The trial court issued a tentative ruling on July 6, 2010, and filed a judgment on August 30, 2010, finding that eligible class members were entitled to refunds in the amounts stated on exhibits attached to the judgment. The judgment awards prejudgment interest on the amounts due at the rate of 7 percent from the date of filing of the February 2008 joint stipulation. The total amount to be paid to class members under the terms of the judgment, including principal and prejudgment interest, is $464,218. Of that amount, the principal amount of $22,812 is payable to class members who had not been located as of the date of the judgment. The judgment also includes exhibits listing class members who did not pay the city's bill or paid less than the amount billed. Those exhibits state the amounts by which the outstanding debts of class members are reduced, totaling $896,185.
The judgment states that the city must administer the refunds and must report to the trial court every 60 days on such administration. It states that amounts due to class members who cannot be located despite reasonable efforts and the total amount of checks returned as undeliverable and checks that are not cashed will be retained by the city after the earlier of one year from the date of entry of judgment or entry of an order that no further efforts need to be made to locate class members.
Plaintiffs moved for an award of attorney fees and costs payable to class counsel under section 1021.5 and the common fund doctrine. They requested a lodestar of $634,761 in attorney fees payable by the city under section 1021.5. They also requested an additional $150,000 as an enhancement for delay, contingency risk and other factors, payable from plaintiffs' recovery under the common fund doctrine. They also sought $13,131 in costs payable by the city plus $4,961 in costs payable from the recovery.
Plaintiffs argued that the judgment created a $464,218 class restitutionary fund and also resulted in the reduction of approximately $896,000 in emergency response costs charged to class members not receiving a refund. They argued that the total monetary value of the judgment was over $1.36 million. Plaintiffs argued that the existence of a common fund did not preclude an award of fees under section 1021.5.*fn5 They argued that because their monetary recovery was less than their requested lodestar fees, those fees should be paid by the city under section 1021.5 rather than from the common fund. Plaintiffs did not specifically address the issue of apportionment of their lodestar fees between the city and the class fund.
The city argued in opposition that the requested lodestar amount was excessive. The city also argued that the judgment did not create a common fund and provided no monetary benefit to class members not receiving a refund, and that plaintiffs' counsel were not entitled to a fee enhancement. The city did not address plaintiffs' argument that the lodestar amount should be paid by the city rather than paid from the recovery and did not argue that part of the fees should be paid from the recovery.
The city filed a declaration by Gerald G. Knapton, an attorney, who stated that he was an expert in the reasonableness of attorney fees. He stated his opinion that the attorney time claimed by plaintiffs was excessive and included administrative tasks that should not be included. He provided a detailed billing analysis indicating, among other things, entries that included attorney and paralegal time for administrative tasks and duplicative work. He stated that the entries including time for administrative tasks represented a total of 122 hours and fees totaling $38,482. He also stated that the claimed average hourly rate of $483 per attorney or paralegal was unreasonable and should be reduced to $300, and that no paralegal time should be included unless plaintiffs established that the individuals were qualified as paralegals under Business and Professions Code section 6450.
The trial court filed an order on September 23, 2010, stating that the city did not meaningfully dispute plaintiffs' right to an attorney fee award under section 1021.5. The order states, "The Court has eliminated the administrative sums per the chart attached to the declaration of Gerald G. Knapton. His declaration also contains a chart of duplicative sums in the amount of $37,189. The Court has reviewed the chart and finds that 50% of that amount ($18,594) should be deducted from the claim fees." Accordingly, the court found that the ...