Dena Mae BURKHOLDER, an Incompetent Person, etc., Plaintiff and Appellant, v. Kenneth KIZER, as Director, etc., Defendant and Appellant.
This is an appeal and cross-appeal from an order awarding attorney's fees after a judgment in an administrative mandamus action. Dena Burkholder was awarded $22,000 as attorney's fees in her successful action to determine her eligibility for Medi–Cal benefits. The principal issue is whether the trial court must make findings showing its application of the lodestar adjustment method to an award of attorney's fees pursuant to Welfare and Institutions Code section 10962 and Code of Civil Procedure section 1021.5 1 , as explained in Serrano v. Priest (1977) 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303 (Serrano III ). We will conclude that the trial court must do so but only upon a request made prior to the submission of the matter for decision.
Neither party requested such findings. However, no statute or prior case law required a presubmission request and the trial court did make findings in support of its application of the lodestar method. For these reasons we will review the findings as if a presubmission request had been made. We will find the trial court's findings insufficient to permit appellate review and will reverse the order for attorneys' fees with directions resolving the parties' contentions of error. With respect to the claims of error we will conclude that section 10962 does not preclude an award under section 1021.5 and that fees for the administrative proceedings are recoverable.
We take the facts principally from the statement of decision on the merits. In December 1985, at age 77, Burkholder was hospitalized in a long term care facility, suffering, among other things, from severe senile dementia which renders her incapable of managing her own affairs. In May 1986 her niece filed an application for Medi–Cal on her behalf. The Medi–Cal eligibility worker learned that the balance in Burkholder's checking account, into which her social security payments were deposited, had plummeted from more than $18,000 to less than $1,000 during her hospitalization. The worker questioned Burkholder's niece, named as a joint tenant on the account, about the disposition of the funds. Burkholder's niece said the money that had been removed belonged to her. The worker said that Burkholder's niece would have to prove her ownership or the money would be presumed to be Burkholder's and counted against her for eligibility purposes as it would be treated as transferred without consideration.
Burkholder's niece apparently did not provide the requested proof. In July 1986 the social services department mailed a notice of denial of benefits to Burkholder's niece, denying benefits on the ground of failure to provide essential information about the missing funds. In August 1988 a conservator of the person and estate was appointed for Burkholder. The conservator again applied for Medi–Cal and learned of the earlier denial. The conservator requested that benefits be granted as of the time of the original application. The present application was granted but the request to grant it retroactively to the original application was denied. Burkholder requested a fair hearing on the denial. The hearing decision upheld the denial on the ground that no request for a hearing on the denial of the original application had been filed within 90 days of the date that it was mailed to Burkholder's niece.
The conservator filed this action on behalf of Burkholder to overturn the unfavorable hearing decision. The matter was heard on December 22, 1989, at which time the Director requested a statement of decision on disputed issues of law.
The trial court issued a statement of decision embodying the following rulings. The Director could not rely upon the notice of denial sent to Burkholder's niece because the governing regulations and due process require that the notice be sent to the applicant or someone legally empowered to represent her. Governing statutes and regulations imposed an affirmative duty to refer Burkholder's case to adult protective services authorities in the light of the information known at the time of her original application. The county should have rescinded its denial when the conservator provided information showing that the failure to provide the requested information should not be attributed to Burkholder. The hearing officer should have entertained Burkholder's due process arguments. Burkholder was eligible for Medi–Cal benefits as of the time of the original application, as the defalcation of her niece could not be attributed to her. She was entitled to retroactive benefits as of the time requested in the original application.
A judgment favorable to Burkholder ensued, from which no appeal was taken. After entry of the judgment Burkholder moved for an award of attorney's fees under section 10962 and section 1021.5. She claimed 204.1 hours of compensable time expended on the merits of the case and asked for a fee of $150 per hour plus $1,461.57 in expenses, asserting that this produced a “touchstone” or “lodestar” figure of $32,076.57. She suggested a multiplier factor of 3, resulting in the sum of $96,229.71. She also sought additional fees for 47.7 aggregate hours expended in support of the motion for fees. The Attorney General opposed the fee claim as exorbitant and unwarranted. Neither party requested specific findings on the basis for the fee award preceding the court's ruling.
After a hearing the trial court issued an order which granted an award to Burkholder of $22,000 in attorney's fees. The text of the order reads:
“The court finds an award of fees to petitioner appropriate under the provisions of Welfare and Institutions Code section 10962 as well as C.C.P. 1021.5, and awards them in the total sum of $22,000. [¶] The court specifically finds that the action resulted in the enforcement of an important right affecting the public interest amounting to a significant benefit to a large class of persons. [¶] The court further finds that respecting authorization for fees under Welfare and Institutions Code 10962, matters preliminary to the filing of the petition here should and may be considered.”
Burkholder sought reconsideration or vacation of the award under Code of Civil Procedure sections 663 and 1008. She argued that the award was inadequate and that the trial court had prejudicially erred in failing to make specific findings pursuant to the lodestar adjustment method explained in Serrano III. The Director opposed the motion, suggesting that the trial court erred in failing to specify the lodestar amount and requesting that the court “clarify” its ruling by additional findings setting out the criteria for an award under section 1021.5 and stating whether the award included fees expended for the administrative proceedings pursuant to that statute or section 10962.
The trial court denied the motion as to reconsideration and vacation of the award but issued a “STATEMENT OF CLARIFICATION” making the following pertinent comments.
“Guidelines for court appointed counsel in felony matters in this county call for $60 per hour. The court concluded that this rate would be inappropriate because the issues are somewhat unique, and extensive research was required (of course reflected in the number of hours claimed). $80–$90 per hour was deemed reasonable hourly rate considering that public funds are involved and the responsibility no greater than felony criminal defense. Very little of the claim relates to trial time.
“The multiplier to increase the base rate of $60 per hour also involves consideration that petitioner's counsel is not involved in a volume practice with many clients covered by single court-day appearances.
“Fees for ‘administrative proceedings' were not compensated as such. Obviously some of that work bore directly on the litigation to follow, and it was impossible to totally separate the two (e.g. research). Fees were therefore awarded pursuant to both CCP 1021.5 and W & I Code 10962, without detailed demarcation.
“[Burkholder's counsel] did an excellent job. “Nevertheless, it does not seem appropriate to increase fees here to a level so far above the amounts paid to court appointed counsel in matters where such counsel feel equally with petitioner's counsel that their work provides a substantial public benefit.”
The Supreme Court has established a lodestar adjustment method by which to calculate the amount of award of attorney's fees under section 1021.5, as explained in Serrano III.2 (See Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322, 193 Cal.Rptr. 900, 667 P.2d 704.) Burkholder's argument assumes that the court must make a finding disclosing the lodestar figure. The case law provides support for this expectation and despite the fact that we do not approve of the procedure used to request findings we will determine that the contention has merit.
The Trial Court Must Make Findings Upon a Presubmission Request
The fact that the trial court is required by Serrano III to calculate the attorney's fees award using the lodestar adjustment method does not logically compel findings which reveal its application. The trial court is required to perform innumerable tasks in the manner prescribed by law (constitutional, statutory, or common law) without being required in every instance to make findings showing the grounds upon the court acted. A finding is not the judicial action itself; it is a formal oral or written statement about the action. The question whether the formality of a finding is required by law is a separate question from that of the legal constraints which govern the court's action.3 Oddly enough, the question whether any findings are required to show compliance with Serrano III had not been squarely addressed at the time of this attorney's fees proceeding.
The closest that the California Supreme Court has approached the question is Maria P. v. Riles (1987) 43 Cal.3d 1281, 240 Cal.Rptr. 872, 743 P.2d 932. It was asked “whether the trial court's failure to make findings supporting its calculation of attorney fees requires reversal of the award.” (Id. at p. 1285, 240 Cal.Rptr. 872, 743 P.2d 932.) The defendants had requested a written statement of decision before the hearing on the award. They contended the order making the award should be reversed because the trial court failed to issue a statement of decision and, alternatively, because the trial court failed to make findings regarding the lodestar or touchstone figure. (Id. at pp. 1293–1294, 240 Cal.Rptr. 872, 743 P.2d 932.) The court rejected the claim that a statement of decision is required but implied, in dicta, that findings are required. (Id. at pp. 1294–1295, 240 Cal.Rptr. 872, 743 P.2d 932.)
Prior to the hearing on attorney's fees both parties alerted the trial court to the Serrano III factors. The court awarded $40,000, an 11 percent reduction of the lodestar amount requested by the plaintiffs without explaining how that figure had been calculated. Maria P. addressed this lack of explanation as follows.
“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 [citation] make it impossible for us to determine whether the trial court based its award on the lodestar adjustment method. [¶] We find it unnecessary, however, to remand this case to redetermine attorney fees. It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error. [Citations.] Here, defendants should have augmented the record with a settled statement of the proceeding. [Citations.] Because they failed to furnish an adequate record of the attorney fee proceedings, defendants' claim must be resolved against them.” (Id. at pp. 1295–1296, 240 Cal.Rptr. 872, 743 P.2d 932.)
The court affirmed the judgment because the parties failed to “furnish an adequate record of the attorney fee proceedings․” The plain implication is that if a reporter's transcript had been provided “[t]he court's failure to specify in its written order the basis of its calculation of the award” would have required reversal. As noted, Maria P. rules out a statement of decision as a means of obtaining findings. It did not rule out findings per se. Rather, it suggested that the written order must enable the appellate court “to determine whether the trial court based its award on the lodestar adjustment method․” The plain implication is that upon a proper request the trial court must show its application of the Serrano III methodology in the written award of fees or orally at the hearing.
This is a salutary notion, appropriate to the nature of the proceedings and the substantial monetary value of the issue. The proper application of the lodestar figure is important to the claim of objectivity in awarding such fees, “ ‘a claim which is obviously vital to the prestige of the bar and the courts.’ ” (See, e.g., Serrano III, supra, 20 Cal.3d at p. 48, 141 Cal.Rptr. 315, 569 P.2d 1303.) That claim would be undercut if the trial court could simply refuse to disclose its methodology. Findings will conduce compliance with the lodestar adjustment method and enable appellate review.4
In addition to Maria P. several opinions of the court of appeal suggest that findings are required upon request. (See, e.g., Mandel v. Lackner (1979) 92 Cal.App.3d 747, 758–759, 155 Cal.Rptr. 269; Pearl, California Attorney's Fees Award Practice (Cont.Ed.Bar Supp.1991) § 6A.14, pp. 147–149, and cases cited therein.) We so hold.
The Request for Findings
That brings us to the questions: must findings be requested, and if so, what is the appropriate means of request? As appears, there is no reason to compel findings absent a request and the appropriate procedure is to request them prior to submission for decision of the question of attorney fees.
As related, in some contexts findings must be made regardless of an express request of a party. Indeed, in the trial court the Attorney General argued that the court's original order was infirm for failure to specify the lodestar amount. However, in the appellate opinions which have considered this question it has been assumed that if “the court was not asked to and did not make findings” regarding attorney's fees the appellate court should imply findings in support of the judgment. (See, e.g., Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1406, 245 Cal.Rptr. 606, and cases cited therein.) Nonetheless, “[b]ecause a formal statement of decision may not be required ․ the procedure to be used to raise [ambiguities or omissions in the fee order] in the trial court is unclear.” (See Pearl, Cal. Attorney's Fees Award Practice, supra, § 6A.14, at p. 148.)
Burkholder submits that she made an appropriate request by moving for clarification of the trial court's ruling after it was issued. She relies upon Guardians of Turlock's Integrity v. Turlock City Council (1983) 149 Cal.App.3d 584, 197 Cal.Rptr. 303. In that case the trial court awarded $5,000 attorney's fees, in response to a claim of $17,112, with no information about how the award was calculated. (Id. at p. 592, 197 Cal.Rptr. 303.) The party awarded the fees contended that the full claim should have been allowed. The judgment on the merits was reversed and the court of appeal decided for that reason that it was unnecessary to pass upon the contention. (Id. at p. 601, 197 Cal.Rptr. 303.) Nonetheless, in dicta, the court observed: “We are inclined to hold that the matter is not reviewable. The trial court may, or it may not, have followed the guidelines set forth in Press v. Lucky Stores, Inc. [supra]. The trial court's ‘Decision’ did not state the basis for its award. If the plaintiffs chose to treat this as a statement of decision (Code Civ.Proc., § 632), it was incumbent upon them to bring to the attention of the trial court any ambiguity. (Code Civ.Proc., § 634.)” (Ibid.) This discussion of the ruling of the trial court indicates that no request for a decision had been made in the case.
Burkholder suggests that since she followed the advice of Guardians of Turlock's Integrity she appropriately requested findings and we are not permitted to infer findings adverse to her claim. (See also, California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 755, 246 Cal.Rptr. 285, “it is incumbent on the party who is dissatisfied with the court's calculation of the number of allowable hours to request specific findings.”) We disagree with the implication in Guardians of Turlock's Integrity and Duffy that it is appropriate to wait until after the award has been made. It rests upon an outmoded and incorrect analysis and is an uneconomical manner of proceeding.
The analysis is incorrect because the situation is not governed by the statutory scheme for a statement of decision. (Maria P., supra, 43 Cal.3d at p. 1294, 240 Cal.Rptr. 872, 743 P.2d 932.) If that scheme is looked to for analogy, waiting until the award is made to request findings would rarely comply with the statute. The request for a statement of decision must be made prior to submission, unless the matter takes more than one day or eight hours of trial time. (Code Civ.Proc., § 632.) A hearing concerning an attorney's fees motion will ordinarily take less trial time.
Moreover, a hearing on attorney's fees issues will rarely produce the unforeseen shifts that sometimes arise in an open-ended lengthy trial. Waiting until after an award is made or denied would induce a multiplicity of briefings and appearances that is uneconomical, especially since the prevailing party is entitled to fees for her efforts in seeking fees. (Serrano v. Unruh (1982) 32 Cal.3d 621, 186 Cal.Rptr. 754, 652 P.2d 985 (Serrano IV ).)
Accordingly, the appropriate rule is that if a party desires findings they should be specifically requested prior to submission of the matter for decision. That did not occur in this case. But given the lack of an applicable statute or guidance in the case law, the fact that the trial court was asked for clarification of its decision and responded with findings addressed to Serrano III, and that both parties were apparently of the view that the court was obliged to make findings sua sponte, we will review the findings as if a presubmission request had been made.5 That brings us to the question of what findings are required.
The Findings Required on Request
Maria P. says that the purpose of findings is to show “the basis of [the] calculation of the award.” This requires, at a minimum, the following. The findings must state the basis or bases for the award, e.g., section 1021.5 and section 10962. The findings must disclose the number of hours accepted as “time spent” and the amount(s) found to be a “reasonable hourly compensation” of the attorney(s) so that the lodestar figure is ascertainable. If time claimed spent is disallowed a reason must be given. If the court augments or diminishes the fee under the multiplier doctrine of Serrano III one or more relevant factors upon which the court relies must be stated. The total award should be calculable by application of these stated factors. In keeping with the suggestion in Maria P. the required findings may be given orally or in a written ruling.
In deeming these minimal findings required we take issue with the recent opinion in Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 284 Cal.Rptr. 113.6 That opinion holds that the only finding required is an express statement that the trial court “had awarded fees based on lodestar amounts․” (Id. at p. 1349, 284 Cal.Rptr. 113.) It specifically rejects the notion that the trial court was “required to explain which of counsel's hours were disallowed․” (Ibid.) The reasoning in Rebney is that the trial court does not impose a statement of decision requirement upon itself by gratuitously entitling its ruling on a motion for attorney's fees “statement of decision.” (Ibid.) So far so good. However, Rebney then leaps to the conclusion that the trial court satisfies the requirement that it “show that the attorney fees were awarded according t othe ‘lodestar’ or ‘touchstone’ approach” (ibid ) by expressly so stating. This confuses showing with telling.
The only authority cited in Rebney on this point is In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133, 275 Cal.Rptr. 797, 800 P.2d 1227. But Arceneaux concerns the consequence on appeal of a failure to raise in the trial court a claimed deficiency in a statement of decision. In that context Arceneaux does repeat the maxim that an order of the trial court is presumed correct on appeal. (Id. at p. 1133, 275 Cal.Rptr. 797, 800 P.2d 1227; see also 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 268.) However, what Arceneaux shows in its reasoning about the consequences of an improper request for findings required under Code of Civil Procedure section 632 is that the maxim does not apply to the extent that findings are required. A requirement of findings is the exception to or boundary of the maxim. The use of the maxim to answer the question whether there is a requirement for findings in a special situation begs the question.
For the reasons we have given there is a requirement in ruling on an application for attorney's fees under section 1021.5 for findings showing “the basis of [the] calculation of the award” within the meaning of that phrase in Maria P., supra. Showing that the lodestar method has been used requires displaying the “calculation” by giving the findings we have noted above. Failing to require such findings is to require no usable findings at all as we see no use in a hollow incantation. The burden of these minimal findings upon the trial court is slight, since each must be overtly and consciously arrived at in order to comply with the lodestar method. On the other hand, requiring counsel to prove the negative that there is no possible reason for a disallowance of the full fee request is inefficient and unfair. It is inefficient because much ground that was immaterial to the decision of the trial court will have to be covered. It is unfair because none of that ground may have been the basis in fact for the action of the trial court. In most cases the burden would foreclose appellate review for insufficient reasons. Therefore we find unpersuasive the opinion in Rebney, in which these points do not appear to have been considered.
It can reasonably be contended that more elaborate findings should be given, as in a statement of decision, “explaining the factual and legal basis for [the] decision as to each of the principal controverted issues.” (Code Civ.Proc., § 632.) However, such an extensive requirement would impose a significant burden upon the trial court and provide an opportunity for quibbling and sniping in the hands of the litigious. We encourage the trial court to explain the reasoning used to resolve the principal controverted issues. Nonetheless we are aware that the faculty of judgment often outstrips that of articulation in the time available to the trial court and are unwilling to mandate a statement of decision by case law.
The Trial Court Findings
In this case the statements of the trial court at the two hearings and in the written orders do not satisfy the requirements for findings. The trial court did provide a range of hourly compensation, between $80 and $90 per hour, and the amount of the award. It may seem that we should adopt for the sake of argument whichever figure within the range is most favorable to the attacks made upon the award and resolve the substantive contentions on appeal arguendo. However, aside from the failure to specify the exact rate it is unclear whether the figures pertain to the amount found to be “reasonable hourly compensation” under Serrano III, or the effective rate of compensation after a multiplier was applied to the lodestar figure. While the trial court applied a “multiplier” to a “base rate” it viewed the result as a “reasonable hourly rate.” But under Serrano III the reasonable hourly rate is part of the base, to be calculated first and then subjected to a multiplier, if one is deemed appropriate. This confusion frustrates appellate review and necessitates a reversal of the award. (See, Mandel, supra, 92 Cal.App.3d at p. 758, 155 Cal.Rptr. 269.)
However, some of the claims of the parties can be resolved at this remove and as to others we will provide guidance for the trial court and the parties.
Burkholder argues that the trial court was compelled to find that the reasonable hourly rate for her counsel's services was $150 because the only evidence adduced supported her claim to that rate. However, in setting a reasonable attorney's fee the court is not bound by the evidence proffered by the parties; it may draw upon its own experience. (See, e.g., Lipka v. Lipka (1963) 60 Cal.2d 472, 479–480, 35 Cal.Rptr. 71, 386 P.2d 671; Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623, 134 Cal.Rptr. 602; 1 Witkin, Cal.Procedure (3d ed. 1985) Attorneys, § 166, p. 192.)
The trial court said: “In arriving at my determination, I looked at our—our felony rates for counsel, experienced counsel defending persons in felony charges. I look to considerations of contingent fees. I look to considerations of rates charged per hour by major defense firms handling substantial matters in this area [of] which I am aware․” This is entirely appropriate and, so long as it does not produce a result that “shocks the conscience” affords no basis for reversal. (See, e.g., 1 Witkin, Cal.Procedure, op. cit. supra, § 167, p. 194.) “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.’ ” (Serrano III, 20 Cal.3d at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.)
Burkholder argues that the rate paid to appointed counsel in felony cases is irrelevant. She points to numerous differences between the position of counsel appointed in such a case and her own. These differences do not render the rate paid in felony cases irrelevant. They are simply considerations bearing upon the weight to be accorded the information in the exercise of discretion by the trial court.
Burkholder submits that the trial court “reduced” fees based upon the inappropriate consideration that payment of the fee would be made with public funds; she argues this consideration has no bearing on a fee award under section 10962 and its use constitutes an abuse of discretion when applied to a calculation of a fee award under section 1021.5. It is unclear from the remarks of the trial court—that it deemed the hourly rate reasonable “considering that public funds are involved”—what role this consideration played in the calculation of the award.
One can view these remarks as bearing on the reasonable hourly compensation for computing the lodestar figure. This is an inappropriate standard for measuring hourly compensation. (Cf., e.g., Copeland v. Marshall (D.C.Cir. en banc 1980) 641 F.2d 880, 895–896.) The value of the services of the attorney should not vary with the identity of the opponent, except where the context coincidentally influences the difficulty, degree of expertise, and level of competition among counsel. These considerations should be considered directly in gauging value.
That brings us to Burkholder's argument that the consideration that a fee award will fall upon the public has no place in the calculation of a fee award under section 10962. Serrano III, 20 Cal.3d at page 49, 141 Cal.Rptr. 315, 569 P.2d 1303, lists that among the considerations relevant to augmentation or diminution of the lodestar figure. (But c.f., Copeland, supra, 641 F.2d at p. 896.) Hence Burkholder suggests that the lodestar adjustment method as presented in Serrano III is not fully applicable to an award under section 10962. She notes that an award under that section will always fall upon the public and yet the Legislature has mandated a reasonable fee.
The lodestar adjustment method is appropriate for calculating an attorney's fee under both statutes, since their purposes are similar. (See Copeland, supra, 641 F.2d at p. 892.) However, the circumstances of their application can influence the relevancy and weight of factors. (See Ibid., fn. 22.) For example, the purposes of an award under section 10962 are less expansive than those of section 1021.5 (see Le Blanc v. Swoap (1976) 16 Cal.3d 741, 743, 129 Cal.Rptr. 304, 548 P.2d 704) and while the fee award is contingent upon prevailing on the merits it is not subject to the criteria of section 1021.5. Since the parties do not generally brief the matter we limit our comments to the claim made.7
As we have explained, the fact that the award runs against the state is a consideration that does not pertain to the market rate for the services provided. It bears upon the Serrano multiplier. In light of the purposes of both sections 10962 and 1021.5, it should serve only as a brake upon the augmenting factors, since, “absent facts rendering the award unjust, parties who qualify for a fee should recover for all hours reasonably spent․” (Serrano IV, 32 Cal.3d at pp. 632–633, 186 Cal.Rptr. 754, 652 P.2d 985.) Recompense at less than market rates would seriously diminish the incentive to take cases under section 10962 and is inconsistent with the statutory purpose of inducing adequate representation.
Assuming that other factors are present that warrant an augmentation of the lodestar figure, under Serrano III the trial court may take into consideration that the award would be paid out of public funds. Here the trial court mentioned that the matter was somewhat unique, that counsel did an excellent job, which would warrant augmentation of the lodestar. Hence, “considering that public funds are involved” does not indicate error. Burkholder argues that in light of the merits of the action the public benefit more than justifies the public expense of handsomely rewarding her counsel. That argument is within the purview of the trial court. No showing of error is made out in its rejection. (See Serrano III, 20 Cal.3d at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.)
Failure to Meet the Criteria of Section 1021.5
The Director on cross-appeal challenges the award under section 1021.5 as failing to meet its statutory criteria.8 None of the arguments is persuasive and the contention has no merit.
He argues that the action cannot be said to have enforced an important right affecting the public interest because the trial court did not order him to implement a state law or regulation in a particular way and because the result only vindicated Burkholder's personal interest in recovering Medi–Cal benefits. As to the first claim, the Director does not take into account that he was ordered to implement state laws and regulations in a particular way. The second claim belongs under a different statutory criterion which we will separately discuss.
We recently addressed a similar claim in City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1304–1305, 255 Cal.Rptr. 704. There, as here, no appeal was taken on the merits. However, we examined the merits to ascertain the “underlying right” enforced, “broadly viewed.” Here the merits so viewed involve the right to Medi–Cal benefits, the right to notice of an adverse determination, and the right to assistance by referral for protective services when the welfare authorities are on notice that an aged incompetent person may have been robbed. There is no abuse of discretion in the implied finding that these rights are of sufficient “ ‘strength’ or ‘societal importance’ ” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 935, 154 Cal.Rptr. 503, 593 P.2d 200) to justify a fee award as private attorney general.
The Director next argues that the action does not confer a benefit on the general public or a large class of persons, but only vindicates Burkholder's personal rights as there is no evidence that a significant number of people will benefit from the trial court's judgment. The argument is unpersuasive in these circumstances.
The Director's argument goes counter to the significance he attached to the case by his request for a statement of decision addressing the application of constitutional due process of law and of state and federal laws to Burkholder's claim and his subsequent failure to take an appeal on the merits. This suggests that the Director has accepted the trial court's determination and will be governed by that determination in the future.9 The record also suggests that the problem faced by Burkholder is recurrent. We find no abuse of discretion in the express finding that the action conferred a benefit on the general public or a large class of persons.
The Director argues that the necessity and financial burden of private enforcement make the award inappropriate and that fees should, in the interest of justice, be paid out of the recovery. Section 10962 plainly provides a public policy to the contrary. The Director points out that the hospital, which will be paid with the back benefits owed to Burkholder, has a substantial “financial interest” in the case and advanced funds to pay Burkholder's counsel, funding the litigation. That counsel receives funding from charitable or public sources has no relevance to the question of threshold eligibility for a private attorney general fee award. (Serrano III, 20 Cal.3d at pp. 47–48, 141 Cal.Rptr. 315, 569 P.2d 1303.) 10 That fees should “in the interest of justice” come out of Medi–Cal funds wrongfully withheld and needed to repay the hospital for Burkholder's care is not an attractive notion.
The trial court did not abuse its discretion in applying the criteria of section 1021.5.
The Application of Section 1021.5 In Cases to which Section 10962 Also Applies
The Director contends that the trial court erred in including, in the compilation of compensable time, hours of service “before and outside the petition for writ of mandate.” He argues that such an award can never be made in cases for which section 10962 has provided a reasonable fee 11 and that cases permitting compensation for such time under section 1021.5 are distinguishable. Neither of the arguments is persuasive and the contention has no merit.12
The Director argues that fees for representation in the administrative forum cannot be awarded in cases for which section 10962 has provided a reasonable fee. The Director argues that the purpose of the statute is to ease the financial burden of obtaining judicial review and an award of fees for services in the administrative forum is outside that purpose. The argument is unpersuasive.
Section 10962 provides for review of final decisions by the Director under the provisions of Code of Civil Procedure section 1094.5, “upon questions of law involved in the case.” The Director emphasizes the quoted language but does not attempt to explain its bearing on the question of attorney's fees. As construed in Frink v. Prod (1982) 31 Cal.3d 166, 172–174, 181 Cal.Rptr. 893, 643 P.2d 476, the phrase has no bearing upon the standard of judicial review. Section 10962 addresses attorney's fees in the last line: “The applicant or recipient shall be entitled to reasonable attorney's fees and costs, if he obtains a decision in his favor.” We see nothing in this language which says that, where judicial review has been sought, fees for services in the administrative forum are to be treated differently from those awarded under section 1021.5.
Section 10962 provides that the exclusive means of review of a Director's final decision is by administrative mandamus (Code Civ.Proc., § 1094.5) and that a successful petitioner “shall be entitled to reasonable attorney's fees and costs, if he obtains a decision in his favor.” Such fees are mandated whatever the ground of resolution, regardless whether the particularized criteria of section 1021.5 are met. The manifest purpose is to encourage legal representation in a meritorious case regardless of its larger, public significance.
Section 1021.5 on the other hand is designed to provide a more substantial inducement “in any [successful] action which has resulted in the enforcement of an important right affecting the public interest” providing that its criteria have been met. The term “any action” provides no limitation precluding its application to actions in administrative mandamus. Nor is there any legally plausible reason why the enhanced recovery which it provides ought not to be applied where the review of a welfare decision arises under the provisions of section 10962. To the contrary, the policy of section 1021.5 is amply designed to countenance the more difficult task of overcoming the bureaucratic intransigence that might attend a compelled change in policy, potentially affecting far more than the case at hand.
The Director cites no precedent to the contrary.13 He argues that a different result is impelled by language in Tripp v. Swoap (1976) 17 Cal.3d 671, 680, 131 Cal.Rptr. 789, 552 P.2d 749, which says that the attorney's fees provision in section 10962 “ease[s] the financial burden which a recipient seeking judicial review otherwise would encounter.” The assertion in Tripp, though incontrovertable, has no bearing on the question. Tripp says nothing which implicates its application to the administrative forum. Indeed, Tripp holds that the failure to expressly provide for prejudgment interest in section 10962 does not preclude such an award in light of the statutory mandate that the law relating to public assistance programs be liberally construed. (Id. at p. 685, 131 Cal.Rptr. 789, 552 P.2d 749.) This undercuts the Director's position.
The Director also suggests that Trout v. Carleson (1974) 37 Cal.App.3d 337, 112 Cal.Rptr. 282 specifies that fees are unavailable for administrative representation. He quotes the language which is underlined in the following passage out of its context.
“The award of attorney fees provided by Welfare and Institutions Code section 10962 is not intended as a penalty against the state. While in the nature of costs, which are allowable only to the extent to which they are reasonably incurred, the attorney fees provided for are to permit a claimant to establish his right to a statutory benefit that by its character is obtainable only by a needy person whose financial condition does not leave a margin for such occasional necessities as attorney's fees. Yet the preparation of a petition for writ of mandate and the proceedings incidental thereto are matters outside the field of ordinary experience among laymen.” (Trout, at p. 343, 112 Cal.Rptr. 282, emphasis added.)
Once again, there is nothing here which favors the Director. Trout says that attorney's fees should be awarded even though counsel was employed by a legal aid organization and the applicant had incurred no obligation to pay attorney's fees. (Ibid.) The quoted passage supports an award of fees for administrative representation, where, as here, a judicial proceeding has been brought. While the procedure in the administrative hearing is more informal, the merits of a controversy such as this which ultimately requires judicial resolution, involving construction and application of statutes and regulations pertaining to Medi–Cal as well as constitutional claims, are also “matters outside the field of ordinary experience among laymen.” For the reasons and under the precedents discussed pertaining to an award of such fees under section 1021.5 we hold fees for administrative representation are compensable in cases for which section 10962 also provides a reasonable fee.14
The Director next argues that there is a disagreement in the case law concerning the power to award attorney's fees under section 1021.5 “for administrative proceedings.” He cites Beach Colony II v. California Coastal Commission (1985) 166 Cal.App.3d 106, 212 Cal.Rptr. 485 as authority for the position that section 1021.5 does not authorize an award of attorney's fees for an administrative proceeding. However, the dicta in that case to which the Director points only suggests that section 1021.5 was not meant to permit an award for participation in quasi-legislative administrative proceedings. The opinion assumed for the sake of discussion that fees could be awarded for representation in a quasi-judicial administrative proceeding from which judicial review by writ was taken. (Id. at p. 116, 212 Cal.Rptr. 485.)
Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 240 Cal.Rptr. 1, noted that Beach Colony II “left open the possibility that section 1021.5 allows attorney's fees arising from quasi-judicial, as opposed to quasi-legislative, administrative proceedings.” (Best, supra, at p. 1456, 240 Cal.Rptr. 1.) The Best majority then resolved that open question in favor of permitting an award in a case like this one.
“In sum, we find the term ‘action’ in section 1021.5 encompasses administrative proceedings which were useful and necessary to the public interest litigation․ Here, Best pursued an administrative remedy which ultimately culminated in proceedings in the courts as an adjunct to the administrative proceeding, and is seeking fees for that single legal course. Since the administrative proceedings here were the first step in the litigation leading to the mandamus proceeding (§ 1094.5), by their very nature they were useful and of a type ordinarily necessary to the public interest litigation.” (Best, at p. 1461, 240 Cal.Rptr. 1.)
The Director distinguishes Best on the ground the plaintiff there won at the first tier of administrative adjudication, lost an appeal at the administrative level, after which he sought judicial review. The significance of the distinction is not explained in the Director's briefing nor can we conceive of a reasonable argument in its favor.
Best correctly resolves the question of recompense for attorney's services during administrative proceedings. To its reasoning we add an obvious consideration of practical policy. The “private attorney general” rule seeks to encourage the enforcement of important rights affecting the public interest with the carrot of “reasonable” attorney's fees. (See, e.g., Serrano III, 20 Cal.3d at p. 48, 141 Cal.Rptr. 315, 569 P.2d 1303.) If an administrative procedure is a prerequisite to the enforcement of such a right counsel ordinarily must, under the doctrine of exhaustion of administrative remedies, present the claim in that forum. That means that the bulk of the legal work may be required in developing the record in the administrative forum. If counsel receives no recompense for so doing, attorney's fees may be the carrot top and not the carrot. This is inconsistent with the policy of section 1021.5. (C.f., New York Gaslight Club, Inc. v. Carey (1980) 447 U.S. 54, 63, 100 S.Ct. 2024, 2030, 64 L.Ed.2d 723, 734, Congress's intent of facilitating the bringing of discrimination complaints furthered by allowing fees for required preliminary administrative proceedings.)
The order awarding attorney's fees is reversed and the matter is remanded for findings and further proceedings in accordance with the views expressed in this opinion. The trial court shall also make an appropriate supplemental award for Burkholder's attorney's fees on appeal and cross-appeal. (E.g., Serrano IV, supra, 32 Cal.3d 621, 186 Cal.Rptr. 754, 652 P.2d 985.) Burkholder shall recover her costs on appeal and cross-appeal.
The majority hold that the trial court erred in failing to make adequate findings regarding its calculation of an attorney fee order awarded pursuant to Code of Civil Procedure section 1021.5 and Welfare and Institutions Code section 10962. I disagree in several respects.
First, I would not reach plaintiff's claim of error because she failed to preserve the issue for appeal. As the majority properly recognize, to be entitled to findings on an attorney fee order, a party must specifically request them prior to submission of the matter for decision. (Maj. opn. at pp. 672, 673.) Plaintiff did not do so, thus she should be precluded from claiming on appeal that the award is not supported by adequate findings. (Cf. Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1406, 245 Cal.Rptr. 606.)
The majority address this procedural deficiency by concluding that plaintiff's request for “clarification” of the attorney fee award after it was announced by the trial court was sufficient to preserve the issue for appeal. They reason: “[G]iven the lack of an applicable statute or clear guidance in the case law [regarding the requirement to request findings prior to submission of the matter], the fact that the trial court was asked for clarification of its decision and responded with findings addressed to Serrano III, and that both parties were apparently of the view that the court was obligated to make findings sua sponte, we will review the findings as if a presubmission request had been made.” (Maj. opn., ante, at p. 673.)
I cannot agree that the law has been unclear as to the necessity of a presubmission request for findings concerning an attorney fee order. At the time of the hearing on plaintiff's request for attorney fees, it was well established that “[i]n California, the trial court has no sua sponte duty to make specific factual findings explaining its calculation of [an attorney] fee award [ordered under Code of Civil Procedure section 1021.5]․” (California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 754, 246 Cal.Rptr. 285.) Rather, as the majority properly point out, a party must request such findings. The very fact that the trial court has no duty to make findings in the absence of a request therefore presupposes that the request for findings must be made before submission of the attorney fee motion for a ruling by the court. Yet, the majority suggest plaintiff had no reason to think she was required to ask for findings prior to submission of the matter. I am unpersuaded.
In my view, plaintiff could not reasonably believe that a postsubmission request for findings on an attorney fee order after a less than one calendar day hearing would be timely even though a similarly-timed request for a statement of decision following a trial of the same length would be untimely. (See Code Civ.Proc., § 632; further statutory references are to this code unless otherwise specified.) Nothing about the attorney fee proceeding justifies this disparity of treatment. Granted, a trial court is not required to issue a statement of decision upon its ruling on a motion for attorney fees. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294, 240 Cal.Rptr. 872, 743 P.2d 932; see In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 79–80, 260 Cal.Rptr. 403.) 1 This does not mean, however, that the time limits established for statements of decision are immaterial to the question of when a party must request findings on an attorney fee award. In fact, this court has intimated that the time limits of section 632 are relevant to a request for findings on an attorney fee award. In County of Butte v. Bach (1985) 172 Cal.App.3d 848, 218 Cal.Rptr. 613, the cross-complainants asserted the trial court should have made findings on the prevailing cross-defendants' entitlement to attorney fees under 42 United States Code section 1988. (Id., at p. 869, fn. 12, 218 Cal.Rptr. 613.) Because the cross-complainants failed to properly brief the issue, it was deemed waived. (Ibid.) Nevertheless, this court went on to note that the cross-complainants had failed to “disclose that [they] made an intelligible or timely request for findings on the issue of the [cross-defendants'] entitlement to attorney's fees. (See Code Civ.Proc., § 632.)” (Ibid.; italics added.) The implication is that the standard by which the timeliness of a request for findings on an attorney fee award is measured by the timeliness requirements of section 632.
Simply stated, no attorney reasonably could believe that the time limit pertaining to requests for findings on attorney fee awards would be more lenient than that pertaining to requests for findings of fact and conclusions of law on judgments. Since a request for a statement of decision must be made prior to submission of a matter heard within one calendar day or findings are waived (§ 632; Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019, 1026, 215 Cal.Rptr. 708; Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 861, 137 Cal.Rptr. 528; King v. King (1971) 22 Cal.App.3d 319, 321, 99 Cal.Rptr. 200), counsel had no reason to believe plaintiff could wait until after the attorney fee order was issued to make a request for findings.
Pearl, California Attorney's Fees Award Practice (Cont.Ed.Bar Supp.1990), cited by the majority, is of no assistance to plaintiff. By stating that an attorney fee motion should contain a proposed order including specific findings (id., at § 6A.9, pp. 142–143), this publication implies that a request for findings must be made prior to submission of the matter.
Nothing in the dictum of Guardians of Turlock's Integrity v. Turlock City Council (1983) 149 Cal.App.3d 584, 197 Cal.Rptr. 303 asserts or implies that plaintiff could make a request for findings after the matter was submitted. There, the trial court awarded $5,000 attorney fees rather than the $17,112 requested, with no information about how the award was calculated. (Id., at p. 592, 197 Cal.Rptr. 303.) The party awarded the fees claimed the full amount should have been granted. The court of appeal responded in dictum: “We are inclined to hold that the matter is not reviewable․ The trial court's ‘Decision’ did not state the basis for its award. If the plaintiffs chose to treat this as the statement of decision (Code Civ.Proc., § 632), it was incumbent upon them to bring to the attention of the trial court any ambiguity. (Code Civ.Proc., § 634.)” (Id., at p. 601, 197 Cal.Rptr. 303.) Since the opinion does not disclose whether the plaintiffs timely requested findings or a statement of decision before the attorney fee issue was submitted, it does not establish whether the parties were entitled, as was hypothesized, to “choose” to “treat” the trial court's decision as a statement of decision.
It is axiomatic that cases are not authority for propositions not discussed or presented. (People v. Harris (1989) 47 Cal.3d 1047, 1071, 255 Cal.Rptr. 352, 767 P.2d 619; General Motors Accept. Corp. v. Kyle (1960) 54 Cal.2d 101, 114, 4 Cal.Rptr. 496, 351 P.2d 768.) Thus, Guardians of Turlock's Integrity does not stand for the proposition that a party who fails to timely request findings is nonetheless entitled to them simply by asking for a clarification of the award. No reasonable attorney would interpret the case as so suggesting. The parties' mistaken belief that the trial court was required to make findings sua sponte does not excuse the failure to make a timely request for findings.
I would hold that, having neglected to request findings prior to submission of the matter, plaintiff is precluded from claiming that the trial court erred in failing to adequately make formal findings as to its calculation of the attorney fee award.
Assuming for the purpose of discussion that plaintiff has preserved the issue, I am unconvinced that the findings outlined by the majority are required for attorney fee awards granted pursuant to section 1021.5 or Welfare and Institutions Code section 10962. Nothing in the language of these statutes compels such findings. And, unlike the majority, I do not interpret Maria P. v. Riles, supra, 43 Cal.3d 1281, 240 Cal.Rptr. 872, 743 P.2d 932 as implying that, upon timely request, the trial court must make the detailed findings mandated by the majority.
In my view, Maria P. suggests that the only thing required is a record adequate to provide meaningful appellate review of any ensuing claim that (1) the trial court abused its discretion in determining whether a party was entitled to attorney fees, and (2) if attorney fees were ordered, the trial court failed to “base[ ] its award on the lodestar adjustment method.” (43 Cal.3d at p. 1295, 240 Cal.Rptr. 872, 743 P.2d 932; cf. People v. Malone (1988) 47 Cal.3d 1, 21–22, 252 Cal.Rptr. 525, 762 P.2d 1249 [a ritualistic incantation that the trial court has weighed the prejudicial effect of proffered evidence against its probative value is not necessary to an Evidence Code section 352 ruling; the record merely must show that “the court understood its duty to make such a determination and impliedly did so.”].)
As recently noted by Division Two of the First Appellate District, formal findings on a section 1021.5 attorney fee award are not required. “[T]he Maria P. opinion indicates that ․ [t]he record need only show that the attorney fees were awarded according to the ‘lodestar’ or ‘touchstone’ approach. [¶] ․ Nothing more [i]s necessary. The [trial] court [i]s not required to explain which of counsel's hours were disallowed, or how or whether any hours were apportioned.” (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349, 284 Cal.Rptr. 113.)
Here, the record is sufficient to show that the trial court understood its duty to exercise discretion in calculating section 1021.5 attorney fees based upon the lodestar adjustment method set forth in Serrano v. Priest (1977) 20 Cal.3d 25, 48–49, 141 Cal.Rptr. 315, 569 P.2d 1303 (Serrano III ). Plaintiff's notice of motion for attorney fees and points and authorities in support thereof referred to the lodestar methodology and the Serrano III factors utilized in calculating the attorney fee award. At the hearing on the motion, the court stated it had read these extensive materials, and discussed with counsel what fee rates should be considered in calculating attorney fees. The context and content of plaintiff's motion provide an adequate record to conclude that the trial court was aware of the discretion it had in awarding attorney fees and impliedly followed the Serrano III methodology in calculating said fees. (Cf. People v. Johnson (1987) 193 Cal.App.3d 1570, 1576–1577, 239 Cal.Rptr. 190.) Moreover, the trial court's “statement of clarification” of its attorney fee award clearly reflects that the court was aware of and applied the lodestar adjustment method. The order specifies that the court calculated a base rate, then applied a multiplier to arrive at an hourly rate it deemed reasonable due to, among other things, the “somewhat unique” nature of the issues.2 As plaintiff acknowledges, the order also implies that the trial court accepted the number of hours of attorney work for which she sought compensation. In plaintiff's words: “That acceptance by the court of 251.8 hours in total time is consistent with the rate of $80 per hour set by the court ($22,000.00 less $1,973.48 (expenses) = $20,026.52 divided by 251.8 (total time) = $79.53 per hour).”
It cannot be said that the trial court abused its discretion, i.e., acted arbitrarily, capriciously and beyond the bounds of reason (People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65), in concluding that $79.53 was reasonable hourly compensation for counsel's services. As the majority correctly note, the $60 rate paid by the county to appointed counsel in felony cases was a relevant factor for the trial court to consider in arriving at a base rate in the lodestar method.
To the extent the trial court concluded the $150 rate sought by plaintiff was inappropriate because payment would come from public funds, I disagree with the majority's conclusion that “the fact that the award runs against the state ․ bears [only] upon the Serrano multiplier [and] should serve only as a brake upon the augmenting factors, ․” (Maj. opn., ante, at p. 676.) Serrano III expressly provides that the trial court may augment or diminish the lodestar hourly rate by taking into consideration various factors, including “the fact that an award against the state would ultimately fall upon the taxpayers; ․” (20 Cal.3d at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.) Reduction of the rate of hourly compensation because the state must pay does not necessarily run counter to the statutory purpose of section 1021.5. Granted, recompense at less than market rate might diminish the incentive to take public interest cases. However, providing legal services at less than market rates, and often free of charge, is part of the fine tradition of the legal profession's pro bono publico work. Moreover, the public treasury is not a bottomless pit. There are many important public services which compete for limited taxpayer dollars, particularly in times of budgetary crisis as we are experiencing today. Hence it is not an abuse of discretion for the trial court to diminish an hourly rate of compensation because responsibility for the award will fall upon the taxpayers' shoulders.
Serrano v. Unruh (1982) 32 Cal.3d 621, 186 Cal.Rptr. 754, 652 P.2d 985 (Serrano IV ), relied on by the majority, does not support their conclusion. Serrano IV holds that, absent circumstances rendering an award unjust, the fee ordinarily should include compensation for all hours reasonably spent, including those relating solely to obtaining the fee. (Id., at p. 624, 186 Cal.Rptr. 754, 652 P.2d 985.) But Serrano IV neither holds nor implies that the hourly rate may not be adjusted below the market rate where the award is to be paid from the public treasury. A below-market award must be upheld, provided it is not so low as to constitute an abuse of discretion. (Cf. Giminez, supra, 14 Cal.3d at p. 72, 120 Cal.Rptr. 577, 534 P.2d 65.)
While I agree that the trial court did not abuse its discretion in concluding that plaintiff was entitled to a private attorney general fee award pursuant to section 1021.5, I cannot assent to the majority's implication that a trial court never could deny a request for private attorney general fees in a Medi–Cal action such as this. (Maj. opn., ante, at pp. 677–678.) The majority correctly point out that the fact counsel receives funding from sources other than his or her client does not make the client and counsel ineligible for a private attorney general fee award. (Serrano III, supra, 20 Cal.3d at pp. 47–48, 141 Cal.Rptr. 315, 569 P.2d 1303.) Nevertheless, where counsel also is receiving fees from a person or entity having a substantial stake in the outcome of the proceeding, the denial of attorney fees will not be deemed an abuse of discretion where the financial burden in bringing the action is not disproportionate to the value of the private benefits gained by the litigation. (Baggett v. Gates (1982) 32 Cal.3d 128, 142–143, 185 Cal.Rptr. 232, 649 P.2d 874; Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 110–115, 212 Cal.Rptr. 485.) For example, plaintiff's counsel originally was retained by the hospital in which plaintiff was being treated. Obviously, the hospital had a significant financial stake in this litigation because Medi–Cal funds are the only available source of monies to compensate the hospital for the services it rendered to plaintiff. Depending on the extent to which a privately-funded hospital provides financial support for an attorney's services to one seeking Medi–Cal reimbursement for hospital expenses, this factor could be considered in determining whether the motion for private attorney general fees should be granted. (Beach Colony II, supra, at p. 115, 212 Cal.Rptr. 485.)
Last, since the trial court did not abuse its discretion in awarding attorney fees pursuant to section 1021.5, I find no need to decide, as the majority have done, that the lodestar methodology also applies to attorney fee orders awarded pursuant to Welfare and Institutions Code section 10962, or that an award under that section may encompass claims for services rendered in administrative proceedings.
For the reasons stated above, I would affirm the judgment.
1. Further references to these section numbers are references to the respective statutes.
2. Using this methodology the trial court first must determine a touchstone or lodestar figure by carefully compiling time spent and a reasonable hourly compensation of the attorney(s). (Serrano III, 20 Cal.3d at p. 48, 141 Cal.Rptr. 315, 569 P.2d 1303.) The court then may augment or diminish the fee based upon various relevant factors, including but not limited to: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing lawsuits of the character here involved; (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed․” (Id. at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303, fn. omitted.)
3. Findings are required generally upon the trial of a question of fact by the court (Code Civ.Proc., § 632), in various other proceedings by statute (see, e.g., Topanga Assn. For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515, 113 Cal.Rptr. 836, 522 P.2d 12; 7 Witkin, Cal.Procedure (3d ed. 1985) Trial, § 369, pp. 375–376), at times by notions of due process (see, e.g., In re Rose G. (1976) 57 Cal.App.3d 406, 129 Cal.Rptr. 338), and by common law precedents of appellate courts (See, e.g., People v. Green (1980) 27 Cal.3d 1, 25, 164 Cal.Rptr. 1, 609 P.2d 468). In some circumstances findings are not required unless they are expressly requested. In others they must be made regardless of a request.
4. These consequences are succinctly explained in Topanga Assn. For A Scenic Community, supra, 11 Cal.3d at page 516, 113 Cal.Rptr. 836, 522 P.2d 12: “Among other functions, a findings requirement serves to conduce the [decisionmaker] to draw legally relevant subconclusions supportive of its ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the [decisionmaker] will randomly leap from evidence to conclusions. [Citations.] In addition, findings enable the reviewing court to trace and examine the [decisionmaker's] mode of analysis.” (Fn. omitted.)
5. The dissent suggests that counsel should have forseen that a request after a ruling on the application for attorney's fees would be deemed untimely in part because of an implication in an undeveloped footnoted dictum of this court in County of Butte v. Bach (1985) 172 Cal.App.3d 848, 869, fn. 12, 218 Cal.Rptr. 613.) We cannot require counsel to be familiar with every such uncelebrated passage, however prescient.
6. Rebney does not appear to be a section 1021.5 case. The entitlement to attorney's fees in Rebney appears to have been the common fund doctrine. There is some controversy in the federal cases concerning whether the lodestar method should be applied to such a fee award. (See Pearl, Cal. Attorney's Fees Award Practice, (Supp.1991) supra, § 3.12, pp. 83–84.) We imply no view on this in declining to distinguish Rebney on the ground of entitlement.
7. The Director, on cross-appeal also equivocally suggests in passing, without analysis, that the lodestar adjustment method is not fully applicable to an award under section 10962. He suggests that the lodestar figure is not subject to augmentation if the award is pursuant to section 10962. Since the suggestion is contained in a footnote to the statement of the facts and is unsupported by legal argument we deem any such claim waived. (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 479, p. 469.)
8. Section 1021.5 permits an award “in any action which has resulted in the enforcement of an 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 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.”
9. Indeed, the Director could be impaired in his ability to act otherwise by collateral estoppel. That rule may sometimes be evaded where it would run against the state. (See, e.g., City of Sacramento v. State of California (1990) 50 Cal.3d 51, 64–65, 266 Cal.Rptr. 139, 785 P.2d 522.) However, the Director would have to persuade the next court that the public interest exception should be applied. (See Rest.2d Judgments, § 28, the exception applies where “There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest․”
10. The only fact about the hospital in the record is that it is a public entity.
11. Section 10962 provides:“The applicant or recipient or the affected county, within one year after receiving notice of the director's final decision, may file a petition with the superior court, under the provisions of Section 1094.5 of the Code of Civil Procedure, praying for a review of the entire proceedings in the matter, upon questions of law involved in the case. Such review, if granted, shall be the exclusive remedy available to the applicant or recipient or county for review of the director's decision. The director shall be the sole respondent in such proceedings. Immediately upon being served the director shall serve a copy of the petition on the other party entitled to judicial review and such party shall have right to intervene in the proceedings.“No filing fee shall be required for the filing of a petition pursuant to this section. Any such petition to the superior court shall be entitled to a preference in setting a date for hearing on the petition. No bond shall be required in the case of any petition for review, nor in any appeal therefrom. The applicant or recipient shall be entitled to reasonable attorney's fees and costs, if he obtains a decision in his favor.” (Emphasis added.)
12. The Director protests compensation for time applied to the administrative hearing and lesser amounts of time preliminary to the administrative hearing and for administrative advocacy during the litigation. In the text we discuss the principal objection pertaining to the administrative hearing. Some of the remaining time does not seem to have been compensated in light of the trial court's comment in its clarification order that “Fees for ‘administrative proceedings' were not compensated as such. Obviously some of that work bore directly on the litigation to follow, and it was impossible to totally separate the two (e.g., research).” The Director argues that all of this time was counted based upon a division of the fee award by the maximum hourly rate in the range given by the trial court. However, the Director's calculation fails to account for the request of almost $2,000 in expenses. Some of the preliminary time was spent on factual and legal research directly pertinent to the issues at the hearing and ultimately in the litigation. This time is governed by the same reasoning as time at and subsequent to the administrative hearing. We cannot tell if the remainder of the time was compensated and in view of the lack of findings and the desultory briefing of the point we deem that issue not before us at this time.
13. The only authority which the Director cites which actually supports his position is a one line assertion in a law review article. “Attorneys for successful claimants in welfare cases in California may be awarded fees for representation at the court level only.” (Goldhammer, Legal Fees in Nonbusiness Administrative Claims (1975) 26 Hastings L.J. 1127, 1136, fn. omitted.) The only support given in the article for the assertion is a bare citation of section 10962. Such an assertion by a commentator is no more forceful than the reasoning which attends it. Since there is no such reasoning here we credit the assertion with no weight at all.
14. The Director raises an additional claim in his reply brief: no award is warranted for the application for fees because he agreed to the entitlement under section 10962. This claim is entirely implausible in light of his opposition to components of the fee claim, extending to the cross-appeal before this court. In any event we reject the claim as untimely raised. (See 9 Witkin, Cal.Procedure, op. cit. supra, § 496, p. 484.)
1. With certain exceptions, a statement of decision is required only on issues joined by the pleadings where the decision of the court following the findings is a judgment. (Maria P. v. Riles, supra, 43 Cal.3d at 1294, 240 Cal.Rptr. 872, 743 P.2d 932; In re Marriage of Simmons (1975) 49 Cal.App.3d 833, 836, 123 Cal.Rptr. 213.)
2. I disagree with the majority's conclusion that it is unclear whether the figures used by the trial court pertain to the amount found to be the reasonable hourly compensation under Serrano III, or to the effective rate of compensation after a multiplier was applied to the lodestar figure. (Maj. opn., ante, at p. 675.) The order of clarification specifically states that a multiplier was used to elevate the $60 per hour “base rate” to the figure ultimately used to calculate the award. The fact the trial court termed the latter figure a “reasonable hourly rate” does not imply that it failed to employ the multiplier.
BLEASE, Acting Presiding Justice.
SIMS, J., concurs.