Filed 10 /2/23 Isom v. MacCarthy CA2/ 4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

MICHAEL R. ISOM,

Plaintiff and Respondent,

v.

BRANDON T. M AC CARTHY,

Defendant and Appellant. B31 7433

(Los Angeles County

Super. Ct. No. MC025723 )

APPEAL from a n order of the Superior Court of Los

Angeles County, Susan Bryant

- Deason , Judge. Affirmed

. McCormick, Barstow, Sheppard, Wayte & Carruth, James

P. Wagoner, and Timothy J. Buchanan for Defendant and

Appellant.

Kuzyk Law and Robert Ryan for Plaintiff and Respondent.

### 2 Appellant Brandon T. MacCarthy (MacCarthy) appeals

from a post

- judgment order awarding respondent Michael R.

Isom (Isom) attorney fees pursuant to Code of Civil Procedure

section 1021.4. 1 MacCarthy argues that the trial court erred by

not reduc ing the fee award in accordance with the percentage of

Isom’s comparative fault, that the court abused its discretion by

awarding fees that were not supported by sufficient

documentation, that the hou rly rate awarded for a first

- year

attorney was unreasonable, and that the court applied an

excessive multiplier to the lodestar amount. We disagree with

MacCarthy’s arguments and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Accident and Jury Trial 2

Isom and MacCarthy were co

- workers, and on June 3, 2014,

left work together in MacCarthy’s vehicle to go to a restaurant.

Isom and MacCarthy stopped at a liquor store to purchase

whiskey and were drinking it on the way to the restaurant,

1 All further references are to the Code of Civil Procedure, unless

otherwise specified.

2 This is MacCarthy’s second appeal from the Superior Court

proceeding s . In the first appeal, Case N umber B315031, MacCarthy

challenged the jury verdict against him. We previously granted

MacCarthy’s request for judicial notice of : (1) the entirety of the clerk’s

transcript on a ppeal in Case N umber B315031

, (2) the entirety of the

reporter’s transcript on a ppeal in Case N umber B315031, and (3) the

admitted t rial e xhibits made part of the record in Case N umber

B315031. Further, we ta ke judicial notice of our opinion of the prior

appeal

, Isom v. MacCarthy (July 28, 2023, B317433 [nonpub. opn.] ),

affirming the judgment in Isom’s favor. (Evid. Code,§§ 452(d), 459.)

Our summary of the facts relating to the accident and trial is taken

from our prior opinion.

### 3

where they con tinued drinking alcoholic beverages. They then

went to M a cCarthy ’ s residence and consumed more alcoholic

drinks

. L ater that night, they set out in MacCarthy ’ s vehicle,

intending to go to a gentlemen ’ s club. While driving with Isom as

his passenger, MacCarthy ran a stop sign, crashed through a

chain link fence into a concrete wash, and hit a culvert. Blood

drawn at the hospital revealed that MacCarthy ’ s blood alcohol

level was 0.22, and Isom ’ s was 0.19. MacC arthy was

subsequently charged with felony driving under the influence of

alcohol and causing injury, to which he entered a nolo contendere

plea. Isom was seriously injured , and o n September 1, 2015, he

filed his complaint against MacCarthy asserting a single cause of

action for negligence.

Y ears later

, on May 4, 2021, trial commenced and

continued for more than three weeks

. Following the trial, the

jury returned its special verdict, finding that MacC arthy was

negligent in causing injury to Isom. Further, the jury assigned

25 percent of responsibility to Isom for his injuries . Isom was

awarded special and general damages totaling $20,636,313.44.

The trial court reduc ed the award by 25 percent for Isom ’ s

comparative negligence and entered judgment in the net amount

of $15,477,235.08.

B. The Attorney Fee Award

Isom then moved for attorney fees under section 1021.4

, which allows the court to award a plaintiff attorney fees in

actions based on a defendant’s felony conviction

. Isom argu ed

that the court should award him fees because MacCarthy was

### 4

convicted of felony driving under the influence of alcohol

. 3 Isom

soug ht fees of $6 ,190,894.03 , which w ere based on the 40 percent

contingency fee in the retainer agreement between Isom and his

counsel

, multiplied by the judgment of $15,477,235.08

. MacCarthy opposed the motion, arguing that the request was

improper because it was not based upon the lodestar method and

unreasonable because Isom was found contributorily negligent.

In reply, Isom argued that the request based on the 40 percent

continge ncy fee was reasonable

, and Isom’s lead counsel, Mark J.

Leonardo, submitted a declaration explaining that as a personal

injury plaintiff’s lawyer, he did not keep traditional timesheets

but instead kept track of the cases he worked on each day.

When t he motion was first heard on August 1 8, 2021, the

court indicated that Isom was entitled to attorney fees under

section 1021.4 as the prevailing party. However, the court denie d

Isom’s request for an award based solely on the contingency fee in

his retainer agreement with his counsel. The court then

continued the hearing to October 28, 2021, to allow Isom to file a

supplemental brief addressing the number of hours Isom’s

counsel spent working on the case.

Isom filed his supplemental brief with a nother declaration

from Leonardo and new evidence as to the hours expended on the

case. Leonardo stated that he did most of the work on the case,

spending more than 1

, 00 9 hours on it from filing through trial.

3 MacCarthy does not dispute that his nolo contendere plea

constitutes a conviction for purposes of section 1021.4 . ( See Calvillo

Silva v. Home Grocery (1998) 19 Cal.4th 714, 725, fn. 9 [“A nolo

contendere plea to a crime punishable as a felony has the same effect

as a guilty plea for all purposes. (Pen. Code, § 1016.) A plea of guilty

constitutes a conviction”], disapproved on other grounds in Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19. )

### 5

He added that four other attorneys worked on the case for a total

of 180 hours over the years : Tyler Oldham

- Monroe (100 hours)

, Don Sherwyn (30 hours) , Arturo Salinas and John V. Bell

( combined to tal of 50 hours for both )

. Leonardo described the

work performed by the other attorneys, and he attached a chart

with description s of the tasks he performe d and the estimated

time he worked on the case each day

. Leonardo further stated

that

, given his experience, a reasonable hourly rate for him would

be between $400 to $500 per hour . Finally, Isom requested an

enhancement or multiplier be applied to the lodestar amount but

did not identify what the multiplier should be

. In his opposition

to the supplemental brief, MacCarthy asserted that there was

in sufficient evidence to support the hours claimed , and he

contended that a multiplier to the lodestar amount was

un justified. MacCarthy argued that if a multiplier were used,

any multiplier over two would be excessive.

Following argument at the October 28, 2021, hearing,

which was not reported, the court issued a ruling, finding that

Isom’s attorneys’ 1,189.1 claimed hours and a “blended rate ” for

Isom’s attorneys of $450 per hour were reasonable (1,189.1 [total

hours] x $450 [hourly rate] = $535,095)

. The court then

determined that there were grounds to apply a “two

- times” ( 2.0 )

multiplier to the lodestar amount due to the risk that plaintiff’ s

counsel took in providing legal services without the certainty of

payment

. Isom , thus, was awarded $1,070

, 190 in attorney fees

( $535,095 x 2.0 multiplier)

. MacCarthy timely appealed.

### 6 DISCUSSION

A. Legal Principles and Standard of Review

In California, the fee setting inquiry begins with the

“‘lodestar,’ i.e., the number of hours reasonably expended

multiplied by the reasonable hourly rate.” ( PLCM Group v.

Drexler ( 2000 ) 22 Cal.4th 1084, 1095 ( PLCM Group ).) “The

lodestar figure may then be adjusted, based on consideration of

factors specific to the case, in order to fix the fee at the fair

market value for the legal services provided.” ( Ibid. ) Whether a

legal basis exists for an attorney fee award is a question of law

that we examine de novo , and we review the amount of fees

awarded for abuse of discretion . ( Mountain Air Enterprises, LLC

v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751 ; San

Francisco CDC LLC v. Webcor Construction L.P. (2021) 62

Cal.App.5th 266, 285 .) The c ourt’s factual findings in support of

its determination are reviewed for substantial evidence. ( In re

Marriage of Knox (2022) 83 Cal.App.5th 15, 25.)

“‘[A]n experienced trial judge is in a much better position

than an appellate court to assess the value of the legal services

rendered in his or her court, and the amount of a fee awarded by

such a judge will therefore not be set aside on appeal absent a

showing that it is manifestly excessive in the circumstances.’

[Citation.] ‘The only proper basis of reversal of the amount of an

attorney fees award is if the amount awarded is so large or small

that it shocks the conscience and suggests that passion and

prejudice influenced the determination.’ [Citation.]” ( Loeffler v.

Medina (2009) 174 Cal.App.4t h 1495, 1509 ( Loeffler ) .) “‘Fees

approved by the trial court are presumed to be reasonable, and

the objectors must show error in the award.’” ( Laffitte v. Robert

Half Internat. Inc. (2016) 1 Cal.5th 480, 488 .)

### 7

B. The Trial Court Was Not Required to Reduce Isom’s

Attorney Fee Award in Accordance with his

Comparative Fault

MacCarthy argues that because the jury found Isom was 25

percent contributorily negligent

, the trial court erred as a matter

of law by not reducing Isom’s attorney fee award by the same

percentage

. We disagree.

MacCarthy does not dispute that Isom was entitled to a fee

award under section 1021.4. S ection 1021.4 provides: “In an

action for damages against a defendant based upon that

defendant ’ s commission of a felony offense for which that

defendant has been convicted, the court may, upon motion, award

reasonable attorney ’ s fees to a prevailing plaintiff against the

defendant who has been convicted of the felony.” N othing in the

statute’s plain language requires a mandatory reduction based on

the percentage of a plaintiff’s comparative fault. ( See DeNike v.

Mathew Enterpr ise, Inc. (2022) 76 Cal.App.5th 371, 384 [ “‘[T]he

words of a statute are generally the most reliable indicator of

legislative intent’”]; see also Moniz v. Adecco USA, Inc. (2021) 72

Cal.App.5th 56, 79 [ “we will not read a requirement into a statute

that does not appear therein” ].)

Furthermore, MacCarthy acknowledges that there is no

case law supporting a mandatory reduction of awarded fees

where the plaintiff has been found contributor il y negligent

. ( See

Bernardi v. County of Monterey (2008) 167 Ca l.App.4th 1379,

1398 [“while the degree of the plaintiff’s success in obtaining the

objectives of the litigation is a factor that the trial court may

consider in determining an award of reasonable attorney fees

under a fee statute [citations],

. . . we det ermine that there is no

### 8

requirement that the trial court make an award of attorney fees

in an amount that is commensurate with or in proportion to the

degree of success in the litigation”].) Instead

, a victim ’ s fault “is

merely a factor for the trial court to consider in its discretion to

award [ fees under section 1021.4 ] .” ( Sommers v. Erb (1992) 2

Cal.App.4th 1644, 1650 ( Sommers ) [affirming attorney fee award

under section 1021.4 to plaintiff in case against felony drunk

driver

, even though plaintiff was also intoxicated at time of

accident]

, citing Wood v. McGovern (1985) 167 Cal.App.3d 772,

779 [factors for the trial court to consider in exercising its

discretion to award fees under section 1021.4 include the victim’s

fault] .)

MacCarthy argues that Sommers does not apply here

because it did not involve a determination of the plaintiff’s fault.

In Sommers

, a motorcyclist was injured when he collided with a

pick

- up truck driven by the defendant. ( Sommers, supra, 2

Cal.App.4th at p. 1646.) The defendant was convicted of a felony

count of causing great bodily injury while driving under the

influence

. ( Ibid. ) The parties filed a stipulated judgment in favor

of the motorcyclist and expressly left open the issue of attorney

fees for resolution by the trial court. ( Id. at p. 1647 .) After

moving for attorney fees under section 1021.4, the trial court

awarded the motorcyclist his requested fees. ( Ibid. ) The

defendant challenged the award, in part, on the ground that the

motorcyclist was a “non

- innocent victim” because he was also

driving under the influence at the time of the a ccident. ( Ibid. )

The Court of Appeal upheld the award. ( Id. at p. 1652.) While

MacCarthy contends that Sommers is distinguishable because

there was no jury finding of comparative fault, there also was no

holding that a fee award must be reduced in proportion to

### 9

comparative fault. Sommers considered the motorcyclist’s

intoxication and found that his “fault

. . . or even his criminal

behavior

. . . [was] not a bar to recovery of attorney ’ s fees under

section 1021.4.” ( Id. at p. 1650.) Such factor s are for the trial

court to consider in its discretion to award fees. ( Ibid. )

We also find MacCarthy ’s reliance on People v. Millard

(2009) 175 Cal.App.4th 7 ( Millard )

, unpersuasive

. In Millard

,

after the defendant was found guilty of driving under the

influence and causing great bodily injury to another person

following an accident with a motorcyclist

, the motorcyclist was

awarded victim restitution pursuant to Penal Code

section 1202.4

. ( Id. at p. 19 .) The court weighed the evidence

and determined that the motorcyclist was 25 percent

comparatively at fault for the accident, and so the court

concluded the restitution amount for his economic losses should

be reduced by 25 percent to reflect his comparative negligence.

( I bi d. ) The People appealed this order

, but it was affirmed

. ( Id. at p p. 20

, 41 .) Millard adopted Sommers’s reasoning and

held that a trial court could consider a victim’s comparative

negligence in making a restitution order; however, it did not hold

that a reduction was mandated based on the percentage of a

victim’s comparative fault

. 4 ( Id. at p p. 40

– 42 .)

4 MacCarthy further cites to Baker v. Mid

- Century Ins. Co. (1993)

20 Cal.App.4th 921 (

Baker ) , in arguing that Isom should not be

allowed to recover attorney fees to the extent he was found liable for

his injuries

. In Baker , the plaintiff sought to hold an insurance

company liable for payment of attorney fees the plaintiff obtained

under section 1021.4 against the insurance company’s insured . ( Id. at

p. 92 2.) The insurer had no obligation to pay the fees because the risk

o f liability for fees under section 1021.4 is uninsurable. ( Id. at

pp. 922

– 923, 926.) These issues concerning the payment of fees by an

insurer are not before us, and thus, Baker is inapposite.

### 10 Accordingly, t he trial court was not required as a matter of

law to reduce Isom’s attorney fee award by the percentage he was

determined to be at fault. His fault was instead a factor for the

court to consider in its discretion to award fees

. 5

C. MacCarthy Does Not Establish t hat t he Trial Court

Abuse d its Discretion

MacCart hy argues the trial court abused its discretion by

(1) failing to consider Isom’s comparative fault in setting the

amount of a reasonable fee, (2) accepting insufficient

documentation of the time spent working on the case

, (3) awarding the rate of $450 per hour for the work of a first

- year

associate, and (4) applying a 2.0 multiplier to the lodestar

amount

. We conclude MacCarthy does not demonstrate that the

trial court abused its discretion.

1. The Record Indicates the Trial Court Considered

Isom’s Comparative Fault

A s to MacCarthy’s contention that the trial court did not

consider Isom’s comparative fault

, the rec ord shows otherwise

.

The court’s October 28, 2021, minute order begins by recognizing

that “[t]he jury apportioned 25 [percent] of the fault to [p]laintiff.”

It states that the court considered all documents relating to the

motion, and in the original and supplemental briefs

, the parties

argued extensively about the effect Isom’s contributory

5 As an alternative argument, MacCarthy asserts that even if the

25 percent reduction was not mandated, the court abused its discretion

by failing to consider Isom’s comparative negligence in setting the

amount of a reasonable fee. We address this and MacCarthy’s other

abuse of discretion claims below.

### 11

negligence should have on a fee award

. The order further

acknowledges Sommers ’s holding that t he fault of the victim is a

factor for the trial court to consider when exercising its discretion

to award attorney fees

. ( Sommers

, supra

, 2 Cal.App.4th at

p. 1650.)

While the parties dispute whether the court considered

Isom’s comparative fault at the October 28, 2021, hearing

, MacCarthy did not provide a reporter’s transcript of the hearing

.

Thus

, we presume the court considered Isom’s fault in setting the

fee award

. (See Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“‘In

the absence of a contrary showing in the record, all presumptions

in favor of the trial court ’ s action will be made by the appellate

court’”]; see also Rhule v. WaveFront Technology, Inc. (2017) 8

Cal.App.5th 1223, 1128

– 1229 [presuming fee order was correct,

where appellant ’ s failure to provide record of fee hearing

deprived appellate court of knowledge concerning trial court ’ s

reasoning, notwithstanding court ’ s issuance of written ruling].)

Beca use t he record does not show that the trial court failed to

take Isom’s comparative fault into account at the hearing or

otherwise

, w e cannot conclude the court abused its discretion

. ( See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295

– 1296 [claim

will be resolved against party challenging attorney fee if they do

not provide adequate record]; s ee also Vo v. Las Virgenes

Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [affirming

judgment because the record was inadequate to conclude the trial

court abused its discretion in determining the attorney fee was

reasonable] .)

### 12 2. The Fee Award was Supported by Substantial

Evidence

T o the extent MacCarthy asserts that Isom’s counsel’s

declaration submitted with the supplemental brief should have

been deemed inadmissible, the record does not show, and

MacCarthy does not contend, that he objected to the declaration ’s

admissibility in any respect

. By failing to object

, MacCarthy

forfeited this claim. (Evid

. Code

, § 353; In re Marriage of Kerry

(1984) 158 Cal.App.3d 456, 466 [“Even if the affidavit in support

of a motion

. . . contains hearsay, legal conclusions or other

objectionable contents, failure to object on these grounds in the

trial court waives the defects, and the affidavit becomes

competent evidence”] .)

MacCarthy further contends that the evidence submitted

with Is om’s request for attorney fees did not support the award.

Isom’s counsel

, Leonardo, filed a declaration with the moving

papers provid ing that he worked on this case for six years and

nine months

, which included conducting written discovery,

numerous depositions

, opposing MacCarthy’s motion for

summary judgment, arguing 25 motions in limine

, and

, including

jury selection, a 17

- day trial

. With the reply, Leonardo stated

that “[a]s a person al injury plaintiff’s lawyer, [he] d[id] not keep

time sheets in the traditional sense as an attorney would if he or

she were billing by the hour

, ” but he submitted a chart reflecting

the days that he worked on the case. Thereafter, Le onardo filed

the declaration with Isom’s supplemental brief estimating the

time expended by himself and the four other attorneys on the

case , and a more detailed chart describing the tasks , with time

estimates, that Leonardo worked on each day.

### 13 “The law is clear [ ] that an award of attorney fees may be

based on counsel ’ s declarations, without production of detailed

time records.” ( Raining Data Corp. v. Barrenechea (2009) 175

Cal.App.4th 1363, 1375 ; see also Steiny & Co. v. California

Electric Supply Co. (2000) 79 Cal.App.4th 285, 293 [“attorney ’ s

testimony as to the number of hours worked is sufficient evidence

to support an award of attorney fees, even in the abse nce of

detailed time records”] .) The court reviewed Leonardo’s

declaration detailing the hours he and the other attorneys spent

on this case , and the chart listing the work performed and

estimated time spent on each task. It found the evidence credible

and sufficient to show the attorneys spent a total of 1,189.1 hours

on this case

. While MacCarthy makes much of Leonardo’s initial

statement that he could not ascertain the exact number of hours

worked on the case because he does not keep itemized timesheets

,

Leonardo’s subsequent declaration contain ed his estimate d time

spent on the case, along with a description of the work

performed. 6 Regarding MacCarthy’s contention that the entries

are in block billing format , “block billing is not objectionable ‘per

se.’” ( Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811,

830.) T he court expressly determined the hours claimed were a

“reasonable amount of time to spend on a case that was filed on

September 1, 2015[,] and went to trial on May 5, 2021.” The trial

court had sufficient information before it to make this

determination

. ( Building a Better Redondo, Inc. v. City of

6 At the August 18, 2021, hearing, Leonardo explained to the

court that he could look at the descriptions of work that he put on his

daily timesheet s to estimate how much time he worked on the case

each day

.

### 14

Redondo Beach (2012) 203 Cal.App.4t h 852

, 874 [“It is not our

role

. . . to second

- guess the trial court on such matters as

whether the hours expended are justified by the product

produced

. . . . The trial court was fully cognizant of the quality

of the services performed, the amount of time devoted to the case

and the efforts of counsel ” ].) We conclude the court did not abuse

its discretion when it based the attorney fee award on the

information in the chart and Leonardo’s declaration.

3. The Use of a Blended $450 Hourly Rate for Isom’s

Counsel was Not an Abuse of Discretion

In his declaration submitted with the supplemental brief,

Leonardo asserted tha t given his experience and success on the

case, a reasonable hourly rate would be between $400 to $500 per

hour. Leon ardo added that he and three other attorneys who

worked on the case

– Salinas, Bell, and Sherwyn

– each had more

than 30 years’ experience practicing law

. The final attorney

working on the case

, Oldham

- Monroe

, was a first

- year associate

responsible for less than 10 percent of the total hours used to

calculate the lodestar amount

. MacCarthy has no issue with a

$450 hourly rate for Leonardo, Salinas, Bell, and Sherwyn, but

he argues there was no evidence to support the rate for Oldham

Monroe as a first

- year associate.

What constitutes a “reasonable hourly rate” depends on the

“experience, skill, and reputation of the atto rney requesting fees.

[Citation.]” ( Heritage Pacific Financial, LLC v. Monroy (2013)

215 Cal.App.4th 972, 1009, ( Heritage Pacific ).) It is generally the

rate “prevailing in the community for similar work,” which can

then be adjusted based on factors tha t are specific to the case.

( PLCM Group

, supra

, 22 Cal.4th at p. 1095 .) However, “[t]he

### 15

court may rely on its own knowledge and familiarity with the

legal market in setting a reasonable hourly rate.” ( Heritage

Pacific

, supra

, 215 at p. 1009 .)

T he court found not that $450 was a reasonable rate

specifically for Oldham

- Monroe, but that a blended rate of $450

was reasonable for Isom’s attorneys to bill on this case based on

the court’s own “experience and knowledge of reasonable rates

. ”

Notably, M acCarthy did not submit evidence of current rates

contradicting the court’s blended rate for Isom’s attorneys. As

Isom asserts, the trial court may have found $500 per hour

reasonable for Isom’s four attorneys with over 30 years’

experience but set a redu ced blended rate to account for Oldham

Monroe’s experience

, as Oldham

- Monroe’s total time working on

the case was a small percent age of the hours used to calculate the

lodestar amount. Moreover , the court’s written ruling shows that

it considered many factors in making the fee award, including the

experience of the requesting attorneys and its own knowledge of

the legal market

. (See PLCM Group

, supra , 22 Cal.4th at p. 1096

[ “‘The value of legal services performed in a case is a matter in

which the trial court has its own expertise’”] ; see also Heritage

Pacific

, supra , 215 Cal.App.4th at p. 1009 [court may rely on its

own familiarity with the local legal market in setting the hourly

rate ].) Accordingly, MacCarthy does not establish that the court

abuse d its discretion by setting a $450 blended hourly rate for

Isom’s attorneys. ( Premier Medical Management Systems, Inc. v.

California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 557

[“[A]n abuse of discretion transpires if ‘“the trial court exceeded

the bounds of reason”’ in making its award of attorney fees”] ; s ee

also Olson v. Cohen (2003) 106 Cal.App.4th 1209, 1217 [“We will

### 16

reverse [an award of att orney fees] only if the amount awarded is

so large or small that we are convinced it is clearly wrong”].)

4. The Court Did Not Abuse Its Discretion in Awarding

a 2.0 Multiplier

MacCarthy argues that the use of a 2.0 multiplier based

solely on the contingent nature of Isom’s fee arrangement with

his counsel was an abuse of discretion. The purpose of a fee

enhancement, or multiplier, is “ primarily to compensate the

attorney for the prevailing party at a rate reflecting the risk of

nonpayment in contingency cases as a class.” ( Ketchum v. Moses

(2001) 24 Cal.4th 1122, 1138 ( Ketchum ) .) Factors that the court

may consider in adjusting the lodestar include “(1) the novelty

and difficulty of the questions involved, (2) the skill display ed in

presenting them, (3) the extent to which the nature of the

litigation precluded other employment by the attorneys, [and]

(4) the contingent nature of the fee award.” ( Id. at p. 1132.)

“There is no magic formula; any one factor may justify an

enhancement.” ( Sonoma Lan d Trust v. Thompson (2021) 63

Cal.App. 5th 978, 986 ; see also Krumme v. Mercury Ins. Co. (2004)

123 Cal.App.4th 924, 947 [“‘There is no hard

- and

- fast rule

limiting the factors that may justify an exercise of judicial

discretion to increase or decrease a lodestar calculation.’

[Citation.] There are numerous such factors, and their

evaluation is entrusted to a trial court ’ s sound discretion; any one

of those factors may be responsible for enhancing or reducing the

lodestar ”].)

In his supplemental brief, Isom requested a multiplier be

applied to the lodestar amount but did not identify the multiplier

to be used

. In opposition, MacCarthy argued that Isom’s attorney

### 17

fee award should not be enhanced, but if it was, a multiplier of no

more than 2.0 should be used

. T he trial court adopted

MacCarthy’s suggestion

. While t he trial court noted that there

was “ no evidence that the questions in this case were novel or

difficult, that there was extraordinary skill displayed, or that

other employment was precluded

, ” Isom’s attorney s were working

under a contingent fee arrangemen t , which provided a basis for

increasing compensation to the lawyers who risked never getting

paid

. MacCarthy does not dispute that t he contingent nature of

Isom’s fee arrangement alone was sufficient to justify the use of a

multiplier. ( Sonoma Land Trust v. Thompson

, supra

, 63

Cal.App.5th at p. 986; Krumme v. Mercury Ins. Co.

, supra

, 123

Cal.App.4th at p. 947.) Further, MacCarthy does not cite any

authority holding that the 2.0 multiplier

, which MacCarthy

suggested

, constitutes an abuse of discretion in this case

. (See

Wershba v. Apple Computer

, Inc. (2001) 91 Cal.App.4th 224, 255

[ “M ultipliers can range from 2 to 4 or even higher ” ]

, disapproved

on another point in Hernandez v. Restoration Hardware, Inc.

(2018) 4 Cal.5th 260. ) The cases that MacCarthy relies on to

argu e that a multiplier of no more than 1.2 should have been

used d o not hold that a higher multiplier is improper

. (See e.g.,

Pulliam v. HNL Automotive Inc. (2021) 60 Cal.App.5th 396

, 408

–

409 ; Sonoma Land Trust v. Thompson

, supra

, at p. 978; Build ing

a Better Redondo, Inc. v. City of Redondo Beach

, supra

, 203

Cal.App.4th at p. 852.) They simply do not address the issue

. 7

7 While MacCarthy asserts that “no case has been located in

which a court applied a 2.0 multiplier and which was affirmed on

appeal for any reason,” our research has shown that such cases exist

. (See e.g., Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 66 [“we are

(Fn. is continued on the next page.)

### 18

( In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [“‘It is

axiomatic that cases are not authority for propositions not

considered’”].)

Isom’s attor neys risked receiving no compensation for the

six years of work they put into t h e case. I t is recognized that an

enhanced fee is appropriate to compensat e attorneys for taking

such risks: “‘A contingent fee must be higher than a fee for the

same legal services paid as they are performed. The contingent

fee compensates the lawyer not only for the legal services he

renders but for the loan of those services

. . . . [Citation.] ’ ‘A

lawyer w ho both bears the risk of not being paid and provides

legal services is not receiving the fair market value of his work if

he is paid only for the second of these functions. If he is paid no

more, competent counsel will be reluctant to accept fee award

ca ses.’ [Citations.]” (

Ketchum

, supra

, 24 Cal.4th at pp. 1132

–

1133 .) Indeed, the court’s ruling acknowledges the length of the

case and the fact that Isom’s attorneys litigated this action at

risk of never receiving compensation. 8

not persuaded that the 2.5 multiplier that class counsel are to receive

is so out of line with prevailing case law as to constitute an abuse of

discretion”], citing City of Oakland v. Oakland Raiders (1988) 203

Cal.App.3d 78 [affirming a multip lier of 2.34]; Santana v. FCA US,

LLC (2020) 56 Cal.App.5th 334, 351

– 354 [ application of 2.0 multiplier

was not abuse of discretion].)

8 Regarding MacCarthy’s contention that a reduced multiplier is

warranted because Isom’s counsel submitted evidence of block billing,

as analyzed above, the evidence was sufficient to support the fee

award. To the extent that MacCarthy contends that the tri al court did

not sufficiently consider the multiplier at the hearing, without a

transcript, the record does not affirmatively show that the trial court

failed to analyze any relevant factors in selecting the multiplier

.

### 19 On this record, we do not find that the award is manifestly

excessive or that it shocks the conscience. ( Loeffler

, supra

, 174

Cal.App.4th at p. 1509.) 9

D. Attorney Fees on Appeal

Isom contends he is entitled to recover attorney fees

incurred on appeal

, which MacCarthy does not dispute in his

reply

. We agree. ( Morcos v. Board of Retirement (1990) 51 Cal.3d

924, 929

– 930 [ attorney fees authorized by statute include

attorney fees on appe al] .) “‘ “Although this court has the power to

fix attorney fees on appeal, the better practice is to have the trial

court determine such fees.” ’” ( SASCO v. Rosendin Electric, Inc.

(2012) 207 Cal.App.4th 837, 84 9.) We , therefore, remand the

matter for the trial court to determine, on appropriate motion,

the amount of fees

.

9 Because we find no error, we do no t address Isom’s argument

that any error concerning the multiplier was invited by MacCarthy’s

arguments in the trial court that any multiplier over 2.0 was

unwarranted.

### 20 DISPOSITION

The order is affirmed

. Respondent, Isom

, shall recover his

attorney fees and costs incurred on appeal

.

MORI, J

.

We concur:

CURREY , P. J.

C OLLINS , J.