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Stevens v. 396 Investment Co.5/17/2005
ion action, attorney fees must be actually incurred and reasonable].) Furthermore, we observe that, as Mrs. Suryanto points out, Anaheim itself acknowledged, in its reply memorandum in support of its motion to tax costs, that an award up to $79,200 ($396,000 divided by the five groups of plaintiffs sharing counsel) would be appropriate. The attorney fee award is affirmed.
(7) Salyers
The Salyers sought $433,329 in attorney fees. They explained that they had agreed to pay their attorney a contingency fee amount equal to one-third of their recovery. They multiplied the fair market value of their property, as stated in the special verdict, by one-third to arrive at the amount of their fee request.
Although Anaheim cites no portion of the appellant's appendix containing a copy of any order awarding attorney fees to the Salyers, it does cite a portion of the reporter's transcript in which the court announced an award of $389,996. The Salyers agree that this is the amount of their award. Thus, it appears the court applied a reduction of $43,333 to the amount sought.
Anaheim claims the Salyers were entitled to no attorney fees at all. Anaheim asserts that the proper attorney fee award should have been calculated in this manner: (1) a net real property award amount of $523,434 should have been multiplied by the one-third contingency fee amount for a resulting figure of $174,478 in fees actually incurred, and (2) an offset in the amount of $309,036 should have been applied to the $174, 478 fee amount, for an attorney fee award amount of zero.
While Anaheim does not take the time to explain, in its opening brief, how it came up with the $523,434 figure for the net real property award, the explanation is contained in its opposition to the Salyers' attorney fees motion. In the opposition, Anaheim stated that the (approximate) judgment amount of $1,164,683 (which already reflected offsets), minus the amount of relocation expenses and emotional distress damages, was equal to $523,434. Also, we observe that if one subtracts the amount of the total offset as indicated in the judgment from the fair market value of the Salyers' property as reflected in the special verdict, one arrives at a figure of $523,434.39. However, Anaheim fails to cite any authority dictating that the determination of the attorney fee award must be made by multiplying the figure so obtained by the contingency fee amount.
Also, Anaheim fails to articulate the exact nature of the $309,036 amount it contends should be offset against the proposed $174,478 attorney fee amount. It vaguely describes the $309,036 figure as a settlement payment from 396. However, we have already stated that the Salyer judgment must be remanded for a correct determination of offsets.
Most importantly, however, Anaheim largely ignores the various factors that a court should take into consideration in determining the amount of a fee award in an inverse condemnation case. The court is charged with determining both whether the fees were actually incurred and whether the fees were reasonable. (Andre v. City of West Sacramento, supra, 92 Cal.App.4th at p. 539.) Anaheim tries to convince us that the amount of fees incurred was less than the amount awarded, because of its offset theory. As we have stated, however, it cites no authority for the proposition that offsets must be applied in the manner it suggests in determining attorney fee awards. Moreover, we observe that at least one case has held that the determination of fees should not be based solely on the contingency agreement. (Salton Bay Marina, Inc. v. Imperial Irrigation Dist., supra, 172 Cal.App.3d at p. 957.)
Anaheim overlooks the
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