Connerly v. State Personnel Bd.

1
Filed 5/4/04 Connerly v. State Personnel Bd. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
WARD CONNERLY,
Plaintiff and Appellant,
v.
STATE PERSONNEL BOARD et al.,
Defendants and Respondents;
THE CALIFORNIA BUSINESS COUNCIL FOR
EQUAL OPPORTUNITY et al.,
Real Parties in Interest and
Appellants.
C043329
(Super. Ct. No.
96CS01082)
This is an appeal and cross-appeal from an order awarding
attorney fees pursuant to Code of Civil Procedure section 1021.5.
(Further section references are to the Code of Civil Procedure
unless otherwise specified.) Real parties in interest argue that
they may not be held responsible for attorney fees, and plaintiff

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challenges the trial court’s disallowance, as unreasonable, of some
of the hours claimed by his attorneys. We shall affirm the order.
BACKGROUND
This litigation involved state and federal constitutional
challenges to five statutory programs that fall within the general
rubric of “affirmative action.” (Connerly v. State Personnel Bd.
(2001) 92 Cal.App.4th 16, 27.) Pete Wilson, in his capacity as
the Governor of California, commenced the litigation by filing,
in this court, a petition for writ of mandate against various
state agencies and officials with responsibility for implementing
the statutory schemes.
A group of organizations and associations who were interested
in the matter obtained permission from this court to appear as
amici curiae. They asserted, among other things, that there was
no justiciable controversy because the action was between the
Governor and his subordinate executive officers and agencies, and
because no real parties in interest had been named. In response,
the Governor filed an amended petition for writ of mandate naming
the amici curiae as real parties in interest.
This court denied the petition without a hearing or opinion.
Governor Wilson then filed his petition for a writ of mandate in
the superior court. In doing so, he named the former amici curiae
as real parties in interest.1 Later, plaintiff Ward Connerly was
1 Originally, there were 14 organizations and associations
who joined together to appear as amici curiae in this court.
Only the six groups, who are the appellants in this appeal,
actively participated in the litigation on the merits.

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permitted to join the litigation as a taxpayer litigant. (Connerly
v. State Personnel Bd., supra, 92 Cal.App.4th at p. 27.) Connerly
continued the litigation after Governor Wilson left office. (Ibid.)
Eventually, the trial court entered a judgment finding invalid
one of the statutory schemes, as well as a portion of another, but
otherwise upholding them. (Connerly v. State Personnel Bd., supra,
92 Cal.App.4th at p. 27.) Plaintiff appealed from the judgment to
the extent that it rejected his challenges to the statutory schemes.
(Id. at p. 28.) Real parties in interest cross-appealed to assert
that, with respect to the statutory scheme found invalid, certain
data collection and reporting requirements could be severed and
upheld. (Ibid.)
The appeal resulted in a lengthy published opinion that found
constitutional infirmities in each of the challenged statutory
schemes. (Connerly v. State Personnel Bd., supra, 92 Cal.App.4th
at p. 28.) But the opinion also concluded that certain portions
of three of the statutory schemes could be severed and upheld.
(Ibid.) The judgment was reversed and the matter remanded to the
trial court with directions to enter a judgment consistent with
this court’s opinion. (Id. at p. 64.) After further proceedings,
such a judgment was entered.
Plaintiff then moved for an award of attorney fees pursuant
to section 1021.5, the so-called “private attorney general” fee
shifting provision. (See Woodland Hills Residents Assn., Inc. v.
City Council (1979) 23 Cal.3d 917, 925 (hereafter Woodland Hills).)
The trial court determined that this is an appropriate case in

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which to make an award of attorney fees pursuant to section 1021.5,
a ruling that is not challenged on appeal.
In determining the amount of the attorney fee award, the
trial court utilized the “lodestar” process (Press v. Lucky Stores,
Inc. (1983) 34 Cal.3d 311, 322), by which the court calculates
a “touchstone” or “lodestar” figure based upon careful compilation
of the time spent and reasonable hourly compensation of each of the
attorneys involved in presentation of the case and then increases
or decreases that figure by using a multiplier determined through
consideration of other factors concerning the case. (Ibid.)
In calculating the lodestar figure, the trial court determined
that the hours claimed were unreasonable in certain respects.
First, it found that the hours claimed for work on the motion
for judgment on the pleadings were excessive -- in this respect,
the court reduced the hours claimed by Attorney Caso by 27 hours,
and the hours claimed by Attorney Gallagher by 4 hours. Second, it
found that the hours claimed for work on the judgment proceedings
and post judgment proceedings were excessive -- in this respect,
the court disallowed 36.5 hours claimed by Attorney Caso, 4.4 hours
claimed by Attorney Findley, and 6 hours claimed by Attorney
Browne. Finally, it disallowed 13.2 hours claimed by Attorney
Caso for “intervention” that had no apparent connection to the
litigation, and 4 hours claimed by Attorney La Fetra for correction
of an arithmetical or clerical error in the claim. The court
allowed total attorney time of 1,426.45 hours. From the reasonable
hourly rate for attorney work, the court derived a lodestar figure
of $346,957.80.

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The trial court enhanced the lodestar figure by 30 percent,
for a total fee for the merits of the litigation of $451,045.14.
To this it added $37,022.50 for work on the motion for attorney
fees. The allowance for work on the motion for attorney fees
represented the full amount of the hours and rates claimed, but
without an increase in the award through application of a
multiplier. The total attorney fee award was thus $488,067.64.
Rejecting the contention of real parties in interest that
liability for the attorney fee award should be the responsibility
of the state defendants alone, the trial court ruled that, under
the circumstances of this case, real parties in interest must
bear liability for an equitable share of the attorney fee award.
Thus, it ordered that the award shall be the joint and several
liability of the state defendants and real parties in interest,
to be borne in equal shares by the State Personnel Board, the
California Community Colleges, the State Treasurer, the State
Lottery, the Department of General Services, and real parties
in interest.
Real parties in interest appeal, contending they may not be
charged with liability for attorney fees in this case. Plaintiff
cross-appeals to challenge the disallowance of some of the hours
claimed by his attorneys.
DISCUSSION
I
Section 1021.5 provides: “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

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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. [¶] Attorneys’ 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 v. Priest [(1977)] 20 Cal.3d 25, 49.”
Real parties in interest rely on federal decisional authority,
primarily Flight Attendants v. Zipes (1989) 491 U.S. 754 [105
L.Ed.2d 639], to support their contention that requiring them to
pay section 1021.5 attorney fees is inconsistent with the purpose
of the statute, which, they assert, was “modeled upon federal law
. . . .” In their view, section 1021.5 is not intended to apply
to “blameless” parties who “did not engage in [the] litigation for
abusive or frivolous reasons.” The contention fails for reasons
that follow.

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A
The “private attorney general” attorney fee theory arose in
federal decisional authority prior to Alyeska Pipeline Serv. v.
Wilderness Soc. (1975) 421 U.S. 240 [44 L.Ed.2d 141] (hereafter
Alyeska). (See D’Amico v. Board of Medical Examiners (1974) 11
Cal.3d 1, 27.) After the United States Supreme Court’s decision
in Alyeska put an end to the non-statutory development of the
private attorney general rule in federal courts (Alyeska, supra,
421 U.S. at pp. 247, 269 [44 L.Ed.2d at pp. 147, 159-160]),
California’s Supreme Court considered the issue as a matter of
state law. (Serrano v. Priest, supra, 20 Cal.3d 25 (hereafter
Serrano III.) Serrano III held the “private attorney general”
attorney fee theory is applicable in California when litigation
advances a public policy that has a basis in our state
Constitution. (Id. at pp. 46-47.) The court left for another day
the determination whether the theory can be applied where the
public policy to be vindicated has a statutory rather than
constitutional basis. (Ibid.)
At about the same time as the decision in Serrano III, the
Legislature enacted section 1021.5. (Stats. 1977, ch. 1197, § 1,
p. 3979.) This legislatively adopted private attorney general rule
authorizes an award of attorney fees in any action that results in
the enforcement of an important right affecting the public interest
regardless of its source, whether constitutional, statutory, or
other. (Woodland Hills, supra, 23 Cal.3d at p. 925.)
In drafting section 1021.5, the Legislature relied on federal
decisional authority prior to Alyeska. (Woodland Hills, supra,

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23 Cal.3d at p. 934.) But section 1021.5 is not a mere offshoot
or extension of some other fee shifting rule. (Serrano III, supra,
20 Cal.3d at p. 45, esp. fn. 16.) It establishes an independent
state attorney fee shifting rule (Serrano v. Unruh (1982) 32 Cal.3d
621, 639, fn. 29) that has its own rationale and must be interpreted
and applied in light of that rationale. (Serrano III, supra, 20
Cal.3d at p. 45, esp. fn. 16.) Accordingly, federal authority is
not controlling. (See Serrano v. Unruh, supra, 32 Cal.3d at p. 639,
fn. 29.) This is particularly so with respect to post-Alyeska
decisions, which cannot reflect a private attorney general rule
as embodied in section 1021.5.
It was long after Alyeska that Flight Attendants v. Zipes,
supra, 491 U.S. 754 [105 L.Ed.2d 639] (hereafter Zipes), upon which
real parties in interest place their primary reliance, was decided.
In Zipes, former flight attendants brought a class action
against Trans World Airlines (TWA), contending that its policy of
terminating flight attendants who became mothers constituted sex
discrimination. The parties eventually reached a settlement by
which TWA agreed to a monetary recovery and to credit class members
with full company and union seniority from the date of termination.
At that point, the union representing incumbent flight attendants
intervened to challenge the settlement to the extent it would
provide retroactive seniority to class members, thus affecting the
seniority rights of the incumbents. After the union’s challenges
were resolved, the district court awarded attorney fees against
the union. (Zipes, supra, 491 U.S. at pp. 755-758 [105 L.Ed.2d
at pp. 645-646].)

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Zipes was concerned with a congressionally-created exception
to the general rule that a prevailing litigant cannot recover
attorney fees. Specifically, it was concerned with section 706(k)
of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(k)), which
provides that in litigation under Title VII of the Civil Rights
Act, the federal district court has discretion to award reasonable
attorney fees to the prevailing party. (Zipes, supra, 491 U.S. at
p. 755 [105 L.Ed.2d at p. 644].)
Prior Supreme Court decisions had held a prevailing plaintiff
in Title VII litigation should recover attorney fees unless special
circumstances make the award unjust, while a prevailing defendant
should not recover fees unless the plaintiff’s action was frivolous,
unreasonable, or without foundation. (Zipes, supra, 491 U.S. at
p. 759-760 [105 L.Ed.2d at pp. 647-648].) Interpreting section
706(k) of the Civil Rights Act of 1964 “in light of the competing
equities that Congress normally takes into account,” the Supreme
Court concluded “that district courts should similarly award
Title VII attorney’s fees against losing intervenors only where
the intervenors’ action was frivolous, unreasonable, or without
foundation.” (Id. at p. 761 [105 L.Ed.2d at p. 648], italics
added.)
Zipes is neither controlling or persuasive with respect to
section 1021.5. First, it was decided long after section 1021.5
was enacted. Second, it interpreted an attorney fee provision
contained in a specific federal statutory enactment limited in
scope and purpose; it was not resolved on constitutional grounds;
and it did not purport to set limitations on state attorney fee

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awards. Third, it was consistent with the United States Supreme
Court’s policy of interpreting fee shifting rules in a narrow and
restrictive manner absent specific legislative guidance otherwise
(see Alyeska, supra, 421 U.S. at pp. 263-264 [44 L.Ed.2d at p.
157]); whereas section 1021.5 provides such legislative guidance.
And fourth, it was based in part on the concern that a request for
attorney fees should not require a second major litigation (Zipes,
supra, 491 U.S. at p. 766 [105 L.Ed.2d at pp. 651-652]); whereas,
by enacting section 1021.5, our Legislature requires California
courts to engage in additional adversarial fee litigation to the
extent necessary to serve the purposes of the rule (see Serrano v.
Unruh, supra, 32 Cal.3d at pp. 632-639).
California’s Legislature has chosen to give state trial
courts equitable discretion to award attorney fees “against one
or more opposing parties in any action which has resulted in the
enforcement of an important right affecting the public interest.”
(§ 1021.5.) Since our private attorney general statute is not an
offshoot of other fee shifting theories and has its own rationale,
we must apply it in light of that rationale. (Serrano III, supra,
20 Cal.3d at p. 45, esp. fn. 16.) Accordingly, in determining the
reach of section 1021.5, we look first and foremost to California
decisional authorities.
B
The imposition of attorney fee awards under section 1021.5
is not limited to public entities; it is well established that
such an award may be imposed against private parties. (Bolsa Chica
Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 517-518;

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Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th
1641, 1669; San Bernardino Valley Audubon Society, Inc. v. County
of San Bernardino (1984) 155 Cal.App.3d 738, 756.)
Section 1021.5 attorney fees are not intended to serve a
punitive purpose. (San Bernardino Valley Audubon Society, Inc.
v. County of San Bernardino, supra, 155 Cal.App.3d at p. 756.)
Indeed, no finding of fault is required and there is no good faith
exception to the rule. (Washburn v. City of Berkeley (1987) 195
Cal.App.3d 578, 588; Citizens Against Rent Control v. City of
Berkeley (1986) 181 Cal.App.3d 213, 231-232; Schmid v. Lovette
(1984) 154 Cal.App.3d 466, 475.) “There is no special requirement
that a party establish that its opponent was guilty of obdurate
[litigation] behavior in order to receive attorney’s fees under
the private attorney general theory.” (Save El Toro Assn. v. Days
(1979) 98 Cal.App.3d 544, 554-555.)
This is not to say the conduct of the party against whom
fees are sought is irrelevant. The court can consider a party’s
culpability in determining whether, and the extent to which, the
party should bear responsibility for attorney fees. (Feminist
Women’s Health Center v. Blythe, supra, 32 Cal.App.4th at p. 1670;
Washburn v. City of Berkeley, supra, 195 Cal.App.3d at p. 592.)
Although it is not necessary that the court find the party engaged
in improper litigation tactics, the court can consider the extent
to which the party actively participated in the litigation and
thus contributed to the necessity that attorney fees be incurred.
(Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 836-

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837; Bolsa Chica Land Trust v. Superior Court, supra, 71 Cal.App.4th
at pp. 517-518.)
An award of attorney fees under section 1021.5 may be made
against a real party in interest who appears and participates in
defense of the action. (Bolsa Chica Land Trust v. Superior Court,
supra, 71 Cal.App.4th at pp. 501, 517-518; Washburn v. City of
Berkeley, supra, 195 Cal.App.3d at p. 581; San Bernardino Valley
Audubon Society, Inc. v. County of San Bernardino, supra, 155
Cal.App.3d at p. 756.) It is not necessary that the judgment be
entered against the party charged with attorney fees. (Friends
of the Trails v. Blasius, supra, 78 Cal.App.4th at pp. 836-837.)
In fact, it is not necessary that a judgment be entered against
anyone, as long as the litigation confers a significant benefit
on the general public or a large class of persons. (Harbor v.
Deukmejian (1987) 43 Cal.3d 1078, 1103; Folsom v. Butte County
Assn. of Governments (1982) 32 Cal.3d 668, 685-686.)
The following decisional authorities illustrate these
principles.
Friends of the Trails v. Blasius, supra, 78 Cal.App.4th 810,
involved the claim of a public easement for passage and recreational
purposes along an irrigation district canal and road. The Nevada
Irrigation District (NID) had a recorded easement for the canal
and road. When the landowners blocked the road with locked gates,
the plaintiffs brought an action against the landowners and NID
to quiet title to a public easement. As the holder of an easement
for canal purposes, NID could neither permit nor prohibit members
of the public from crossing the landowners’ property. (Pasadena v.

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California-Michigan etc. Co. (1941) 17 Cal.2d 576, 579; Dierssen v.
McCormack (1938) 28 Cal.App.2d 164, 170.) Nonetheless, NID appeared
in the action and defended against the declaration of a public
easement. The trial court declared a public easement subordinate
to NID’s easement, enjoined the landowners from interfering with
the easement, and granted no relief to the plaintiffs against NID.
(Friends of the Trails v. Blasius, supra, 78 Cal.App.4th at pp. 819-
820.) The court then entered an attorney fee award against the
landowners and NID. Rejecting the claim that NID could not be
charged with attorney fees because no relief was granted against
NID (id. at pp. 836-837), the Court of Appeal concluded it was
equitable to require NID to share the burden of attorney fees
since NID affirmatively and vigorously opposed the declaration
of a public easement. (Ibid.)
Bolsa Chica Land Trust v. Superior Court, supra, 71 Cal.App.4th
493, involved challenges to the approval of a local coastal program
(LCP) by the California Coastal Commission. Although the action
named a number of landowners as real parties in interest, only
two of them, Koll Real Estate Group (Koll) and Fieldstone Company
(Fieldstone), actively participated in the case. (Id. at p. 500-
501.) The trial court found inadequacies in the LCP, remanded to
the commission for further proceedings, and awarded attorney fees
against the commission and the landowners who actively participated
in the litigation. Rejecting the landowners’ contention that it was
improper and unconstitutional to award attorney fees against them
when it was the commission that was found to have made inadequate
findings, the Court of Appeal concluded the argument was “somewhat

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disingenuous.” (Id. at p. 517.) In the appellate court’s words:
“It suffices to say the vigor of Koll and Fieldstone’s defense
no doubt compelled the trust to incur substantial attorney fees and
accordingly make it fair under the equitable principles embodied in
Code of Civil Procedure section 1021.5 to impose some of those costs
on Koll and Fieldstone.” (Id. at p. 517-518.)
Washburn v. City of Berkeley, supra, 195 Cal.App.3d 578,
involved a petition for writ of mandate filed against the city
challenging as false and misleading a ballot argument submitted
in support of a local initiative measure. The petition named as
real parties in interest the persons who had signed the argument.
Only two of the real parties in interest opposed the petition,
and at the conclusion of the proceedings the trial court awarded
attorney fees against one of the opposing real parties in interest.
The Court of Appeal affirmed, rejecting arguments that the real
party in interest was shielded by privilege and that the award
of fees violated the constitutional rights of free speech and
to petition the government. (Id. at pp. 586-591.)
The foregoing decisional authorities show that section 1021.5
gives California courts equitable discretion to make an award of
attorney fees “against one or more opposing parties” when the
statutory criteria are satisfied. But this discretion is not
unlimited; it must be exercised in light of the legal principles and
purposes governing the subject of the action. (Westside Community
for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355;
Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629,
634.)

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The determination whether a party has met the requirement
for an award of fees and the reasonable amount of such an award
are matters best decided by the trial court in the first instance.
(Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 544.)
That court must realistically assess the litigation and determine
from a practical perspective whether the statutory criteria have
been met. (Ibid.) If it determines that the statutory criteria
have been met, then it must balance or weigh them in making the
ultimate determination whether fee shifting is appropriate.
(Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72,
81.)
On appeal from an order awarding section 1021.5 attorney fees,
we review the record, paying particular attention to the trial
court’s stated reasons and whether it applied the proper standards.
(Hewlett v. Squaw Valley Ski Corp., supra, 54 Cal.App.4th at p.
544.) The court’s decision will not be reversed unless there has
been a prejudicial abuse of discretion, i.e., unless the record
establishes there is no reasonable basis for the award. (Ibid.;
Feminist Women’s Health Center v. Blythe, supra, 32 Cal.App.4th
at p. 1666.)
C
Here, the trial court found that this litigation readily met
the criteria for an award of attorney fees under section 1021.5, a
finding that is not challenged on appeal. Real parties in interest
claim only that they should not be required to share responsibility
for the award of attorney fees. The relevant authorities we have
discussed above demonstrate that there is no legal impediment which

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would preclude, as a matter of law, an award of fees pursuant to
section 1021.5 against opposing parties who appear and actively
participate in the litigation.
Thus, our consideration must be directed to whether the trial
court abused its discretion in awarding fees against real parties
in interest.
Real parties in interest claim their role in the litigation
was effectively that of amici curiae or intervenors rather than
as true real parties in interest. They assert that they objected
to being named real parties in interest but that the trial court
rejected their objections and required them to participate in the
proceedings. The record reflects a somewhat different scenario.
When Governor Wilson filed his initial petition for writ of
mandate in this court, he did not name any real parties in interest.
Together with other organizations and associations, the real parties
in interest in this case obtained permission to file an amici curiae
brief. Governor Wilson then amended his petition to name the amici
curiae as real parties in interest. When this court denied the
petition and it was refiled in superior court, the real parties
in interest were again named as real parties in interest.
Real parties in interest made vigorous and determined efforts
to obtain dismissal of the action. In the course of doing so,
they raised questions as to their status as true real parties in
interest. But they did so solely in support of their efforts to
obtain dismissal of the action in its entirety. In that respect,
they raised numerous questions regarding matters such as standing,
collusion, adversity, case or controversy, and ripeness, and claimed

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that to go forward the Governor would have to name as a real party
in interest every individual in the state who would stand to benefit
from the challenged statutory schemes. In the course of these
arguments, they did not assert that, should the litigation go
forward, they would not desire to participate.
The various efforts of real parties in interest to terminate
the litigation failed. When the trial court denied their motion
for judgment on the pleadings, it did not order or otherwise
require them to participate in the proceedings. Indeed, the court
would have had no such authority. When it was clear the litigation
was going forward, real parties in interest could have asked for
dismissal as to them on the ground that they did not wish to
participate. Alternatively, they could have simply declined to
participate, which is a tactic often employed by persons named as
real parties in interest who do not wish to participate. (Bolsa
Chica Land Trust v. Superior Court, supra, 71 Cal.App.4th at pp.
501, 517; Washburn v. City of Berkeley, supra, 195 Cal.App.3d at
p. 581.) In other words, being named as real parties in interest
merely gave them an opportunity to participate in the litigation,
it did not compel them to do so. However, when their efforts to
terminate the litigation failed, real parties in interest willingly
and vigorously participated in the litigation and exercised all of
the prerogatives of a party.
In its ruling, the trial court said: “Real parties may lack
responsibility for the violation, implementation or enforcement of
the five statutory schemes invalidated in this litigation, and they
may have been involuntarily joined as parties to the litigation,

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but they have participated in the litigation as full-fledged
parties. Unlike amici, real parties have comprehensively and
actively litigated multiple procedural and substantive aspects
of petitioner’s lawsuit, asserting the interest of their members
as well as that of respondents from the outset of the litigation.
Thus, real parties have essentially acted as respondents in the
lawsuit and have clearly increased petitioner’s burden in obtaining
relief.”
The record well supports that trial court’s findings and,
in that light, we can perceive no abuse of the trial court’s
discretion in requiring real parties in interest to share the
burden of section 1021.5 attorney fees.
II
As noted ante, the appropriate amount of a section 1021.5
attorney fee award is determined by calculation of a lodestar
figure through careful compilation of the time spent and reasonable
hourly compensation for each attorney involved in the case, with
adjustment up or down through use of a multiplier based upon other
factors involved in the case. (Press v. Lucky Stores, Inc., supra,
34 Cal.3d 311, 322.)
In determining the lodestar figure, a trial court is not
required to accept every hour claimed by the successful attorneys.
In Serrano v. Unruh, supra, 32 Cal.3d at page 639, the court said
that an award should “include compensation for all hours reasonably
spent.” In footnote 21, at page 635, the court cited with approval
federal authorities which had reduced the hours claimed for reasons
such as the attorneys’ efforts were unorganized or duplicative;

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the attorneys spent excessive hours on the claim; and the time
spent was unreasonable. In footnote 28, at page 639, the court
said the hours claimed should be documented and “[t]he trial or
appellate court may deem either the hours or the rate excessive,
and either may find special circumstances for reducing the award
or denying one altogether.”
In California Common Cause v. Duffy (1987) 200 Cal.App.3d
730, the trial court disallowed a significant portion of the hours
claimed by the attorneys of the prevailing party. The court said
it did so because there was some duplication of effort, some of
the hours were spent accommodating the press and other interested
attorneys, and some of the hours were devoted to unnecessary
adversarial skirmishing between the attorneys. (Id. at pp. 753-
754.) The Court of Appeal upheld the ruling, concluding that
the reasons given by the trial court were proper reasons for
disallowing the hours claimed. (Ibid.; see also Californians for
Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961,
970-973; Sundance v. Municipal Court (1987) 192 Cal.App.3d 268,
273-274.)
The experienced trial court is the best judge of the value of
legal services rendered in that court. (Serrano III, supra, 20
Cal.3d at p. 49.) It has its own expertise and may make its
own determination contrary to, or without the necessity for, expert
testimony. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084,
1096.) The determination of what constitutes reasonable attorney
fees is committed to the discretion of the trial court. (Ibid.)
An appellate court will not interfere with the trial court’s

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determination unless it is an abuse of discretion, i.e., “‘unless
the appellate court is convinced [the determination] is clearly
wrong.’” (Serrano III, supra, 20 Cal.3d at p. 49.)
Here, the trial court found the hours claimed for responding to
the motion for judgment on the pleadings were excessive. It noted
that the standing and jurisprudential issues presented in the motion
were legal issues that did not require the extensive time claimed
for conferring with, and responding to the comments of, the client.
We would add that the issues were largely rehashed arguments which
had been presented and argued before and, therefore, the attorneys
were not required to start from scratch in responding to them.
The attorneys claimed 107.86 hours in responding to the motion.
The trial court disallowed a total of 31 hours, thus awarding
compensation for 76.86 hours. We can perceive no abuse of
discretion.
Plaintiff asserts, however, that defendants and real parties
in interest did not object and produce specific evidence with
respect to the hours claimed for responding to the motion for
judgment on the pleadings and that the trial lacked authority to
consider the issue sua sponte. We disagree.
The failure to make a timely objection in the trial court
generally waives an issue for purposes of appeal. (Wiley v.
Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177,
188.) But a trial court has the authority to amend and control its
process and orders so as to make them conform to law and justice.
(§ 128, subd. (a)(8).) In considering a motion for attorney fees,
the trial court is required to engage in careful compilation of the

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time spent and reasonable hourly compensation for the attorneys.
(Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 322.)
In doing so, the court has its own expertise and is in the best
position to determine the reasonableness of the attorney hours
claimed in presenting a case. (PLCM Group, Inc. v. Drexler, supra,
22 Cal.4th at p. 1096; Serrano III, supra, 20 Cal.3d at p. 49.)
Accordingly, the lack of a specific objection does not deprive the
trial court of authority to scrutinize a claim for attorney fees to
ensure itself that the hours claimed are reasonable.
The trial court also concluded that the time spent on the
judgment and post-judgment proceedings was excessive. It ruled
that presentation of a proposed judgment through motion procedure,
rather than by correspondence, unnecessarily expanded the time
reasonably required to settle the judgment. The court also found
that the motions to vacate and correct the judgment unreasonably
expanded the time necessary to correct minor errors in the
judgment. It concluded that the remainder of the issues in the
motions to vacate and correct the judgment were entirely devoid of
merit and frivolous. Lastly, the court found that the time spent
on appeal and petition for writ of mandate following the court’s
orders on the motions to vacate and correct the judgment were not
necessary to the relief obtained in the litigation. It allowed
42.2 hours claimed by Attorney Caso, 2.5 hours claimed by Attorney
Findley, and 3 hours claimed by Attorney Browne. It disallowed
36.5 hours claimed by Attorney Caso, 4.4 hours claimed by Attorney
Findley, and 6 hours claimed by Attorney Browne.

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The judgment and post judgment proceedings arose when in
Connerly v. State Personnel Bd., supra, 92 Cal.App.4th at page 64,
the matter was remanded to the trial court with directions to
enter a judgment consistent with the opinion in Connerly v. State
Personnel Bd. On remand, plaintiff’s attorneys spent considerable
time objecting to the form of the proposed judgment and attempting
to vacate the judgment entered. In an unpublished opinion in
Connerly v. State Personnel Board, C042245, filed June 25, 2003,
this court considered and rejected plaintiff’s objections to the
form of the judgment. For all the time expended, the attorneys
succeeded only in correcting two minor errors in the judgment.
A failure to obtain total success does not automatically
preclude attorney fees for time spent unsuccessfully. Rather,
we leave it to the trial court’s discretion to determine whether
time spent on unsuccessful efforts was nevertheless reasonably
incurred in the context of the litigation. (Sundance v. Municipal
Court, supra, 192 Cal.App.3d at p. 274.)
Upon review of the record, we find that the trial court did
not abuse its discretion in determining that the time spent on the
judgment and post judgment proceedings was excessive.
III
Plaintiff asks for attorney fees for the time spent on the
appeal and cross-appeal. (Serrano v. Unruh, supra, 32 Cal.3d
at p. 639 [“fees recoverable under section 1021.5 ordinarily
include compensation for all hours reasonably spent, including
those necessary to establish and defend the fee claim”].)

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Whether section 1021.5 fees should be awarded to plaintiff
for the cost of defending the attorney fee order on the appeal,
and for the cost of prosecuting an unmeritorious cross-appeal
(but see, Serrano v. Unruh, supra, 32 Cal.3d at p. 639, fn. 28),
are matters that we leave to the discretion of the trial court
in the first instance.
DISPOSITION
The order awarding attorney fees pursuant to section 1021.5
is affirmed. The parties shall bear their own costs on appeal.
(Cal. Rules of Court, rule 27(a).)
SCOTLAND , P.J.
We concur:
BLEASE , J.
RAYE , J.

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