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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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. MACCARTHY,

Defendant and Appellant.

 B317433

 (Los Angeles County

 Super. Ct. No. MC025723)

APPEAL from an 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 reducing 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 hourly 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 Trial2

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 

proceedings. In the first appeal, Case Number 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 appeal in Case Number B315031, (2) the entirety of the 

reporter’s transcript on appeal in Case Number B315031, and (3) the 

admitted trial exhibits made part of the record in Case Number

B315031. Further, we take 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 continued drinking alcoholic beverages. They then 

went to MacCarthy’s residence and consumed more alcoholic 

drinks. Later 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. MacCarthy 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 on September 1, 2015, he

filed his complaint against MacCarthy asserting a single cause of 

action for negligence. 

Years 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 MacCarthy 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 reduced 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 argued

that the court should award him fees because MacCarthy was 
4

convicted of felony driving under the influence of alcohol.

3 Isom 

sought fees of $6,190,894.03, which were 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 

contingency 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 the motion was first heard on August 18, 2021, the 

court indicated that Isom was entitled to attorney fees under 

section 1021.4 as the prevailing party. However, the court denied 

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 another 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 1,009 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 CalvilloSilva 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 total of 50 hours for both). Leonardo described the 

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

with descriptions of the tasks he performed 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 

insufficient evidence to support the hours claimed, and he

contended that a multiplier to the lodestar amount was 

unjustified. 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 court’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.4th 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. Section 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.” Nothing in the

statute’s plain language requires a mandatory reduction based on

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

Mathew Enterprise, 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 contributorily negligent. (See 

Bernardi v. County of Monterey (2008) 167 Cal.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 determine 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 accident. (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 factors 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.

(Ibid.) The People appealed this order, but it was affirmed. 

(Id. at pp. 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 pp. 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. 922.) The insurer had no obligation to pay the fees because the risk 

of 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, the 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 that the Trial Court

Abused its Discretion

MacCarthy 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

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

consider Isom’s comparative fault, the record 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 the 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].) 

Because the record does not show that the trial court failed to

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

otherwise, we 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]; see 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

To 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 Isom’s request for attorney fees did not support the award. 

Isom’s counsel, Leonardo, filed a declaration with the moving

papers providing 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 personal 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, Leonardo 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 absence 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 contained his estimated 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.) The 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 timesheets to estimate how much time he worked on the case 

each day. 
14

Redondo Beach (2012) 203 Cal.App.4th 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 that given his experience and success on the

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

hour. Leonardo 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 OldhamMonroe as a first-year associate. 

What constitutes a “reasonable hourly rate” depends on the 

“experience, skill, and reputation of the attorney 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 that 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.) 

The 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, MacCarthy 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 reduced blended rate to account for OldhamMonroe’s experience, as Oldham-Monroe’s total time working on

the case was a small percentage 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

abused 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”]; see 

also Olson v. Cohen (2003) 106 Cal.App.4th 1209, 1217 [“We will 
16

reverse [an award of attorney 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 displayed 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 Land 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. The trial court adopted

MacCarthy’s suggestion. While the 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 attorneys were working 

under a contingent fee arrangement, which provided a basis for 

increasing compensation to the lawyers who risked never getting 

paid.

MacCarthy does not dispute that the 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

[“Multipliers 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

argue that a multiplier of no more than 1.2 should have been

used do 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; Building

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 attorneys risked receiving no compensation for the

six years of work they put into the case. It is recognized that an

enhanced fee is appropriate to compensate 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 who 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

cases.’ [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 multiplier 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 trial 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 appeal].) “‘“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, 849.) 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 not 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.

COLLINS, J.