Lower Court Failed to Use Correct Lodestar Methodology, But Basing On Contingency Fee Percentage Was Not Prejudicial.
Code of Civil Procedure section 1036 does allow an attorney’s fees award to successful inverse condemnation plaintiffs. Fee entitlement was not the basis for the challenge to a $421,826 fee award to plaintiffs obtaining several million dollars against City of Mill Valley in a nuisance, dangerous public property, and inverse condemnation case tried jointly before a jury and a trial judge. (After all, the case involved a landslide resulting in one death and damage to two residences.)
What was at issue in Guthrie v. City of Mill Valley, Case No. A125735 (1st Dist., Div. 4 July 15, 2011) (unpublished) was the trial court’s method of arriving at the fee awawrd.
The trial judge apparently awarded plaintiffs 40% of the total recovery, exclusive of expert costs and interest, in line with their contingency fee arrangement with their attorneys. This was error, because the lodestar method should have been used. However, the error was not prejudicial so as to require reversal: the almost 3 year matter resulted in a 26-day jury trial involving lots of expert testimony such that the 1,500 hours claimed by plaintiffs’ attorneys (even at a $300 hourly rate rather than the requested $424 rate) was reasonable--coming to a total of $450,000, just about the ultimate award by the trial court. (Imperial Cattle Co. v. Imperial Irrigation Dist., 167 Cal.App.3d 263, 279-280 (1985), disapproved in part on another ground in Bunch v. Coachella Valley Water Dist., 15 Cal.4th 432, 447-451 (1997).)
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