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Gonzalez v. Santa Clara County Department of Social Services

California Court of Appeals, Sixth District

February 28, 2017

VERONICA GONZALEZ, Plaintiff and Appellant,

         Superior Court No.: 1-11CV204141 The Honorable Patricia M. Lucas

          Attorneys for Plaintiff and Appellant Weissburg Law Firm Veronica Gonzalez: Diane B. Weissburg

          Attorneys for Defendant and Respondent Office of the County Counsel Santa Clara County Department of Social Services: Orry P. Korb, County Counsel Marcy L. Berkman, Deputy County Counsel

          RUSHING, P.J.

         Plaintiff Victoria Gonzalez challenged an administrative order declaring that she should be reported to the statewide child abuse index for what was deemed excessive discipline of her 12-year old daughter. After she successfully appealed to this court from the trial court's denial of relief, she sought an award of approximately $60, 000 in attorney fees incurred to four separate law practices. The trial court found her eligible for fees but awarded only $7, 500, denying her claim in its entirety as to all but her current counsel. It found the evidence in support of two other claims technically deficient, although no evidentiary objection had ever been asserted against them. It denied the third claim on the basis of objections that were only raised when the court permitted the opposing party to file a third opposition memorandum on the ground-which is not borne out by the record-that plaintiff had violated a previous order for supplemental briefing. These rulings may have grown out of an understandable frustration with counsel for plaintiff, whose several failings included the belated assertion of arguments and the devotion of considerably more attention to unsound technicalities than to making a bulletproof showing on the merits. Nonetheless we conclude that under the peculiar circumstances of this case, the court's complete denial of relief as to three of plaintiff's four attorneys exceeded the bounds of sound discretion. We will therefore remand for reconsideration of the fee request with respect to the other three attorneys.


         As we detailed in the underlying appeal (Gonzalez v. Santa Clara County Department of Social Services (2014) 223 Cal.App.4th 72 (Gonzalez I)), plaintiff was reported for child abuse based upon having spanked her daughter with a wooden spoon. Defendant Santa Clara County Department of Social Services (Department) concluded that the report was “substantiated, ” and submitted it to the state Department of Justice for inclusion in the child abuse index (see Pen. Code, §§ 11164-11174.3). Plaintiff brought an administrative appeal, which was unsuccessful. She then filed a petition for administrative mandamus, which the superior court denied. She appealed to this court, contending that neither the Department nor the trial court had given sufficient weight to the legislatively declared right of a parent to impose reasonable discipline on his or her child. We sustained this contention, further holding that the hearing officer had abused his discretion by refusing to permit the daughter to testify in support of her mother, even though the daughter was reportedly eager to do so and had submitted a written declaration contradicting the Department's witnesses on key points. (Gonzalez I, supra, 223 Cal.App.4th at pp. 95, 99.) We reversed the judgment of the superior court with directions to order the Department to either conduct a new hearing or set aside its finding that the report was “substantiated” and to inform the Department of Justice that the report was “unfounded.” (Id. at p. 102.) Our remittitur directed that plaintiff recover her costs.

         On May 27, 2014, plaintiff moved in the superior court for an award of attorney fees as well as costs. She invoked three separate statutory grounds for such an award (see pt. I, post). The motion asserted that she had incurred fees to four law practices: $16, 000 to the Chastain Law Group (Chastain) for administrative proceedings; $15, 000 to Jeremy Brehmer to challenge the administrative order in the superior court; $25, 262.40 to Seth Gorman, to prosecute the prior appeal in this court; and $7, 500 to Diane Weissburg for services following the remand from this court. The motion was supported by Weissburg's declaration with certain attachments (see pt. IV, post).

         The Department filed written opposition, contending that plaintiff was not entitled to attorney fees on any of the grounds asserted by her and that she had failed to adequately substantiate some of the fees claimed. Plaintiff objected to the opposition and moved to strike it on the ground that it had not been served in compliance with a stipulated order setting a briefing schedule. (See pt. II, post.)

         For reasons not clearly reflected in the record, but which plaintiff ascribes to two successive recusals by assigned judges, the matter was not heard until October 7, 2014. On that date Weissburg filed an amended memorandum of costs seeking a total of $64, 199.40, the increase apparently consisting of an additional six hours of her own time, plus “travel costs of $1080.00, ” “hearing by phone of $85.00, ” and correction of a clerical error in the original memorandum. In a supporting declaration she stated that two-thirds of the travel costs represented expenditures on trips to San Jose from Los Angeles, where she lived, to attend hearings which did not take place because of “multiple judicial officers waiting until the day before each prior hearing to recuse themselves, and the court continuing to reassign the case and postpone the hearing at the last minute.”

         At the hearing, the court acknowledged counsel's objection to the Department's opposition (see pt. II, post), but stated that it had “decided to consider the papers.” The court also rejected plaintiff's contention that some of the Department's assertions were barred by res judicata or collateral estoppel. Weissburg then argued the merits of her client's entitlement to fees. Counsel for the Department asserted that Weissburg was citing several cases for the first time. Noting an “apparent[]... disagreement as to whether some” of plaintiff's citations were “new to this record, ” the court suggested “that the respondent have an opportunity to address those, and the petitioner have a final briefing, and then the matter would be submitted on those papers.”

         The Department submitted a supplemental brief on October 21, 2014. It began by stating that the court had limited briefing to “the applicability of th[e] additional cases” cited by Weissburg at the hearing. It argued that those cases were inapposite and did not affect the outcome. Then, in seeming violation of the limitation it had just noted, it went on to challenge some of the cost items newly claimed in plaintiff's amended cost bill. Among other points, it objected to plaintiff's attempt to recover for travel to appear at hearings that had been continued. The Department contended that counsel could have avoided those trips by taking advantage of the court's tentative ruling system.

         Attorney Weissburg filed a responsive supplemental brief. Addressing the Department's objection to the claim for travel expenses, Weissburg asserted that the first judge to whom the fee motion was assigned had recused herself “[l]ate in the afternoon the day before the hearing, ” and the judge to whom it was next assigned had done the same thing. On both occasions, she asserted, she had flown into Oakland on the day before the hearing “to ensure arrival, and morning fog concerns, resulting in flight delays.”

         The trial court, possibly acting on an ex parte application, [1] issued an order stating that Weissburg had “violat[ed]” the order for supplemental briefing by addressing issues beyond those mentioned in the Department's supplemental brief. As a result, the order stated, the Department would be permitted to file yet another supplemental brief on or before December 12, 2014. On December 19, the Department filed its third memorandum in opposition to the fee motion. About half of this memorandum addressed arguments raised in plaintiff's supplemental memorandum. The other half was devoted to supposed deficiencies in plaintiff's original showing in support of a fee award. Most notably, the Department now contended-apparently for the first time-that the fees claimed for Seth Gorman's successful prosecution of the original appeal were inadequately documented in that “[t]here is no description of the services rendered or contemporaneous time records for these services.” It also reiterated its original objection to the showings concerning attorneys Chastain and Brehmer, as well as its previous objection to the claimed travel expenses.

         On December 29, 2014, the court issued an order granting the fee motion, but only as to the fees incurred for Weissburg's services. The court concluded that plaintiff was entitled to fees under Code of Civil Procedure section 1021.5, but not under two other statutes invoked by her. (See pt. I, post.) Respecting the amount of fees, the court identified certain evidentiary deficiencies in plaintiff's showing, most notably the failure to authenticate the billing statements from previous counsel and the absence of any “information to support the stated billing rate(s).” The court concluded that 30 hours was a reasonable time for Weissburg to have spent on the motion for fees and allowed $7, 500 in fees, at Weissburg's stated $250-per-hour rate, plus $1, 504.50 in trial and appellate costs.

         Plaintiff, through Weissburg, filed this timely appeal.


         I. ...

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