Filed 8/5/24 Westlands Water Dist. v. North Coast Rivers Alliance CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

WESTLANDS WATER DISTRICT,

Plaintiff and Respondent,

v.

NORTH COAST RIVERS ALLIANCE et al.,

Defendants and Appellants.

F085567

(Super. Ct. No. 19CECG03887)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler 

Tharpe, Judge.

Law Offices of Stephan C. Volker, Stephan C. Volker, Stephanie L. Clarke and 

Jamey M.B. Volker for Defendants and Appellants.

Stradling Yocca Carlson & Rauth, Allison E. Burns and Douglas S. Brown for 

Plaintiff and Respondent.

-ooOooThis appeal concerns an award of attorney fees pursuant to Code of Civil 

Procedure section 1021.5. Defendants sought fees in excess of $330,000. The trial court 

awarded roughly $105,800. Defendants claim they deserve more money. Plaintiff
2.

disagrees. The standard of review is highly deferential to the trial court, and we find no 

reversible error. The amount of the award will be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants—North Coast Rivers Alliance, Winnemem Wintu Tribe, California 

Sportfishing Protection Alliance, Institute for Fisheries Resources, Pacific Coast 

Federation of Fishermen’s Associations, and San Francisco Crab Boat Owners 

Association—collectively refer to themselves as NCRA. We do the same, but where 

applicable we also use NCRA to individually reference defendant North Coast Rivers 

Alliance. Plaintiff Westlands Water District is referred to as Westlands.

Litigation History

A more comprehensive background is provided in Westlands Water Dist. v. All 

Persons Interested (2023) 95 Cal.App.5th 98, which we incorporate by reference. The 

following is an abbreviated summary of the most relevant events.

In October 2019, Westlands filed a validation action in the Fresno Superior Court 

pursuant to, inter alia, Code of Civil Procedure section 860 et seq. The deadline for 

interested parties to answer the complaint was December 16, 2019. NCRA filed an 

answer on the last possible day, shortly before 5:00 p.m., and the filing was rejected for 

failure to pay all first appearance fees. NCRA resolved the problem the next morning.

On December 30, 2019, Westlands filed a “Motion for Validation of Contract,”

seeking entry of judgment in its favor on all issues. NCRA filed an opposition brief, as 

did three other groups of defendants. The motion was decided in March 2020.

Although the trial court denied Westlands’ validation motion, it also found the 

answers filed by NCRA and two other groups of defendants were untimely. This finding 

would have barred NCRA from further participating in the case, and they filed an 

immediate appeal. The appeal resulted in a discretionary stay of the trial court action 

from approximately August 2020 through May 2021. The finding of untimeliness was 

reversed by this court (Westlands Water Dist. v. North Coast Rivers Alliance (Mar. 9, 
3.

2021, F081174) [nonpub. opn.]), and the trial court proceedings resumed with a case 

management/status conference held on May 25, 2021. An unsuccessful settlement 

conference took place in July 2021.

In September 2021, Westlands filed a “Renewed Motion for Validation Judgment”

along with a combined “Opening Brief and Memorandum of Points and Authorities in 

Support of Renewed Motion for Validation Judgment.” NCRA responded by filing what 

was styled as an “Opening Merits Brief.” Additional briefing followed, but there was no 

trial. Westlands’ renewed validation motion was denied by written decision in October 

2021. The validation complaint was ordered dismissed, and a judgment of dismissal was 

entered in March 2022.

The Fees Dispute

In May 2022, NCRA filed a motion pursuant to Code of Civil Procedure section 

1021.5 for an award of attorney fees. Compensation for 320.6 hours of attorney time was 

requested at hourly rates of $750 (for 235.1 hours) and $450 (for 85.5 hours). NCRA 

also claimed 31.1 hours of paralegal time at an hourly rate of $175. This translated to a 

claimed “lodestar” of $220,242.50. NCRA also requested a multiplier of 1.5, bringing 

the total proposed award to $330,363.75. In addition, NCRA sought reimbursement of 

$5,668.87 for third party vendor charges incurred by counsel while performing legal 

research.

Westlands disputed NCRA’s eligibility for attorney fees, which is an issue outside 

the scope of this appeal. Alternatively, Westlands opposed the hourly rates claimed by 

NCRA and disputed the hours spent on various tasks. In particular, Westlands criticized 

NCRA’s attorneys for “block billed time entries and inadequate explanations of work 

performed.” Westlands further accused NCRA’s counsel of claiming inflated hours for 

brief writing when “large sections of [the] work product” were “copied and pasted from 

previous filings.”
4.

On November 7, 2022, the trial court issued a tentative ruling to grant NCRA’s 

motion at lesser hourly rates and for fewer hours than requested. The motion was argued 

the next day and taken under submission. On November 14, 2022, the trial court issued a 

written decision largely conforming to its earlier tentative ruling, but with one notable 

change. Having apparently been swayed by one of NCRA’s arguments at the motion 

hearing, the trial court added 23.3 hours of attorney time and 8.2 hours of paralegal time 

to the previously indicated award.

The trial court’s detailed ruling addressed 10 categories of tasks performed by 

NCRA’s counsel. For each category the court specified the amount of time it would 

allow for principal attorney, associate attorney, and paralegal work. The total award, 

after applying a multiplier of 1.5 to the lodestar, was $105,797.40. This figure included 

the reimbursement of $5,668.87 for legal research costs. In other words, the award for all 

attorney and paralegal time was actually $100,128.53. Further details are provided in the 

body of the opinion.

Based on NCRA’s briefing, it appears they do not realize the total award included 

approximately $3,885 in additional compensation beyond what was indicated in the trial 

court’s category-by-category analysis. The calculation of billed time expressly allowed 

for all categories was 74.5 principal attorney hours at the rate of $550 (totaling $40,975), 

55.8 associate hours at the rate of $350 (totaling $19,530), and 20.9 paralegal hours at the 

rate of $175 (totaling $3,657.50), which translates to a lodestar of $64,162.50. After 

applying the positive multiplier of 1.5, the resulting figure is $96,243.75. Adding the 

$5,668.87 reimbursement for legal research costs brings the amount to $101,912.62, 

which is $3,884.78 less than the total award of $105,797.40. The significance of this 

discrepancy, which inured to NCRA’s benefit, is explained in the Discussion.
5.

DISCUSSION

I. Standard of Review

Once a party’s eligibility for a fee award is established, all related decisions are 

generally reviewed for abuse of discretion and/or substantial evidence. (Sweetwater 

Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th 

970, 980–981.) “With respect to the amount of fees awarded, there is no question our 

review must be highly deferential to the views of the trial court. [Citation.] As our high 

court has repeatedly stated, ‘“‘[t]he “experienced trial judge is the best judge of the value 

of professional services rendered in his [or her] 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”—meaning that it abused its discretion.’”’ [Citation.]” (Children’s 

Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 777.)

“An attorney who prosecutes an appeal from an order addressed to the trial court’s 

sound discretion is confronted with more than a daunting task.” (Estate of Gilkison

(1998) 65 Cal.App.4th 1443, 1448.) All reasonable inferences permitted by the record 

will be drawn in favor of the challenged ruling. (Denham v. Superior Court (1970) 2 

Cal.3d 557, 564.) “Unless an appellant demonstrates otherwise, we assume the trial court 

followed the law and acted within its discretion.” (Sonoma Land Trust v. Thompson

(2021) 63 Cal.App.5th 978, 984.)

II. Legal Overview

The determination of recoverable fees “begins with the ‘lodestar,’ i.e., the number 

of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group, 

Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The reasonable hourly rate is that 

prevailing in the community for similar work.” (Ibid.) The rate component has also been 

described as “the hourly prevailing rate for private attorneys in the community 

conducting noncontingent litigation of the same type.” (Ketchum v. Moses (2001) 24 
6.

Cal.4th 1122, 1133, italics omitted.) The lodestar may also include paralegal fees “if the 

trial court deems it appropriate.” (Roe v. Halbig (2018) 29 Cal.App.5th 286, 312.)

Once calculated, the lodestar may be enhanced or decreased, “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.” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 

1095.) The final award “must be based on a proper utilization of the lodestar adjustment 

method, both to determine the lodestar figure and to analyze the factors that might justify 

application of a multiplier.” (Flannery v. California Highway Patrol (1998) 61 

Cal.App.4th 629, 647.) The 1.5 multiplier in this case was specifically requested by 

NCRA and is not being challenged.

III. The Trial Court Permissibly Adjusted the Hourly Rates

A. Additional Background

NCRA’s legal counsel, the Law Offices of Stephan C. Volker, is located in 

Berkeley, California. NCRA requested hourly rates of $750 for principal attorney 

Stephan C. Volker, $450 for his associate attorneys, and $175 for his paralegals. In 

support of this request, NCRA filed sworn declarations by attorneys Stephan C. Volker 

and Richard M. Pearl, and by individual defendant NCRA’s president, Frank Egger.

Attorney Volker’s declaration highlighted his nearly 50 years of experience in the 

area of environmental litigation, which he cited as justification for an hourly rate of $750.

He further declared, “[T]he reasonable market value of my services in the San Francisco 

Bay Area is currently at or above $800 per hour. However, in this case I only request 

compensation based on Sacramento area market rates.”

1

1The Sacramento legal market is discussed throughout NCRA’s motion papers, including 

all three supporting declarations. The relevance of what attorneys earn in Sacramento, which is 

more than 150 miles away from where the case was venued and also outside the jurisdiction in 

which both NCRA and its counsel are based, was never explained.
7.

Richard M. Pearl is a California attorney and author of numerous published works 

on the subject of attorney fees, including the treatise California Attorney Fee Awards

(Cont.Ed.Bar). His declaration was intended to serve as an expert opinion on the value of 

attorney Volker’s legal services in this case, as well as the services of Volker’s associates 

and paralegals. Pearl opined NCRA’s counsel are “top-rate attorneys” who achieved 

“excellent results” in the validation action, and the rates requested were “well within the 

range of hourly rates charged by comparable Sacramento attorneys and law firms for 

similar work.”

According to Frank Egger’s declaration, NCRA’s board of directors “conducted a 

thorough search for the best counsel [it] could secure in Northern California to review 

and enforce the requirements of the validation laws on which Westlands based its lawsuit. 

... After a diligent search, including attorneys in the Fresno and Sacramento areas, [it] 

determined that Stephan Volker was the best qualified attorney to protect [NCRA’s] 

interests and enforce the validation laws in this proceeding.”

Frank Egger further declared NCRA “located no comparably experienced and 

skilled environmental attorney in Fresno County.” The assertion was later repeated with 

slightly different wording: “We found no attorneys in Fresno County who had 

comparable skill and experience using the courts to protect and restore the Delta and its 

tributary rivers.” Egger explained that while “there are other experienced environmental 

attorneys with a background in litigation in the Sacramento area,” NCRA believed, 

“based on an extensive search, none [had] anywhere near as much trial and appellate 

experience and success in public interest litigation as Mr. Volker.”

Westlands, in opposition, submitted a declaration by Lauren D. Layne, a 

shareholder in the Fresno law firm of Baker Manock & Jensen, PC. The firm’s clients 

were said to include “Central Valley Project contractors” who, like Westlands, had “filed 

validation actions regarding their recent conversions” of preexisting contracts with the 

United States Bureau of Reclamation to repayment contracts. Layne’s practice “focuses 
8.

on general water and environmental law,” and she serves as general counsel to “various 

irrigation and water districts” and “Groundwater Sustainability Agencies.” Attorney 

Layne opined that her firm, “as well as a number of other attorneys in the Fresno area 

with whom [she was] familiar, [were] qualified to competently handle a validation action 

such as this one.” Her firm’s hourly rates for such work were in the range of $335–$550.

The trial court scrutinized the language used by NCRA’s president, Frank Egger, 

and concluded it was “unclear whether NCRA located or considered hiring attorneys in 

Fresno [with] experience and skill in the relevant field, even if they did not have as many 

years of experience as Mr. Volker.” The court also reasoned, “since the relevant area of 

law here is validation actions, not environmental law, Mr. Volker’s impressive 

experience in environmental law was not necessarily a requirement for NCRA’s defense 

of the action.” In short, NCRA failed to demonstrate the necessity of hiring out-of-town 

counsel.

Unlike attorney Volker, two lawyers representing codefendants County of San 

Joaquin and County of Trinity attested to having significant environmental litigation 

experience and extensive experience with validation actions involving water contracts.

In concurrently pending fee motions, those lawyers were requesting an hourly rate of 

$525. Considering NCRA was “seeking a much higher rate” than all other defense 

counsel in the case, and also impliedly relying on Westlands’ evidence (attorney Layne’s 

declaration), the trial court applied “a lower rate of $550 per hour for Mr. Volker and 

$350 per hour for the associates.” NCRA’s requested paralegal rate was allowed.

B. Law and Analysis

For purposes of determining the reasonable hourly rates “‘prevailing in the 

community for similar work,’” the “relevant ‘community’” is where the action is venued.

(Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 

71, quoting PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) “However, ‘in 
9.

the unusual circumstance that local counsel is unavailable,’ or that ‘hiring local counsel 

was impracticable,’ the trial court is not limited to the use of local rates and may instead 

use the hourly rate of out-of-town counsel from a higher fee market in calculating the 

lodestar amount.” (Marshall v. Webster (2020) 54 Cal.App.5th 275, 286.) One of the 

first appellate decisions to recognize these exceptions was from this district, Horsford v. 

Board of Trustees of California State University (2005) 132 Cal.App.4th 359.

NCRA purports to rely on Horsford, and also Center for Biological Diversity v. 

County of San Bernardino (2010) 188 Cal.App.4th 603, but both are inapposite. In 

Horsford, a trial court abused its discretion by “failing to adequately consider” awarding 

higher rates for out-of-town counsel despite “overwhelming and uncontradicted”

evidence of the impracticability of retaining a local attorney. (Horsford v. Board of 

Trustees of California State University, supra, 132 Cal.App.4th at pp. 397, 398.) “In the 

absence of any realistic indication plaintiffs could have found local counsel, it was an 

abuse of discretion to fail even to consider an hourly rate based on counsel’s ‘home’

market rate.” (Id. at p. 399.) A similar error occurred in Center for Biological Diversity, 

where “the only evidence on the issue of availability of local counsel showed plaintiffs’

need to retain out-of-area counsel.” (Center for Biological Diversity, at p. 619.)

This case is more analogous to Rey v. Madera Unified School Dist. (2012) 203 

Cal.App.4th 1223, which the trial court cited in its ruling. In Rey, the “appellants hired 

out-of-town attorneys from a higher fee area, with certain of the attorneys charging over 

$700 per hour. The trial court concluded these rates were excessive for the Central 

Valley and instead calculated the fee award using a blended local rate of $325 per hour.”

(Rey, at p. 1241.) Although the appellants presented evidence of impracticability, the 

opposing party “submitted declarations from two local attorneys ... [who] declared that 

they had the experience, skill and resources to accept such a case and would have taken 

[the] case if asked. Thus, the trial court was faced with conflicting evidence. Moreover, 

the appellants’ evidence was speculative and did not establish that appellants ever 
10.

attempted to retain local counsel. Under these circumstances, the trial court did not 

abuse its discretion in applying local rates.” (Ibid., italics added.)

Another analogous case is 569 East County Boulevard LLC v. Backcountry 

Against the Dump, Inc. (2016) 6 Cal.App.5th 426. As here, the dispute on appeal was 

over the hourly rates sought by the Law Offices of Stephan C. Volker. (Id. at pp. 429.) 

The litigants “presented conflicting affidavits concerning the appropriate hourly rate for 

seasoned attorneys and fifth-year associates,” and the appellant’s expert “testified that 

$750 per hour for Mr. S. Volker and $350 per hour for the three fifth-year associates 

working on the case was within the market range charged for similar services by similarly 

qualified attorneys.” (Id. at p. 437.) “However, plaintiffs submitted contrary declarations 

that the market range charged for similar services by similarly qualified attorneys was 

much lower. Moreover, the court was cognizant that the rate charged by a very seasoned 

attorney from the relevant community (San Diego), who [had achieved success for a 

codefendant] in this same litigation ... was $275 per hour.” (Ibid., fn. omitted.) The trial 

court’s application of “a flat hourly rate of $275” (id. at p. 436) for attorney Volker and 

his associates was affirmed on appeal.

Here, the trial court’s analysis of the artfully worded declaration of NCRA’s 

president was correct. The declaration was not evidence of an inability to retain, or the 

impracticability of retaining, qualified local counsel. It did not even establish that NCRA 

ever attempted to contact any Fresno attorneys. There is an obvious and significant 

difference between a party’s inability to secure qualified local counsel and its preference 

to hire whomever it perceives to be the very best attorney in a particular field of law.

In their briefing, NCRA repeatedly contends “no comparably qualified local 

attorney willing to represent NCRA on a contingent fee basis was available.” The 

assertion is misleading. NCRA’s president, Frank Egger, declared “Mr. Volker was 

willing to represent us in this litigation on a contingent fee basis.” The declaration says 

nothing about seeking or being unable to find other attorneys that would take the case on 
11.

a contingency basis. There is no evidence NCRA contacted any other attorneys or law 

firms about possible representation in this case except the Law Offices of Stephan C. 

Volker.

NCRA’s emphasis on the fact Westlands’ attorneys are based outside of Fresno is 

unhelpful. Westlands was not the party seeking attorney fees. Clients are free to hire 

whomever they wish, but their lay opinions regarding “the best qualified attorney” (as 

phrased by declarant Egger) do not obligate a trial court to apply out-of-market rates. 

(Italics added.)

NCRA’s reliance on In re Tobacco Cases I (2013) 216 Cal.App.4th 570 is 

misplaced. There, a trial court’s finding of impracticability was upheld on appeal as 

justification for awarding fees at out-of-market rates. (Id. at pp. 581–583.) The losing 

party argued the hourly rates should not have exceeded those charged by the local 

defense counsel it had retained. In rejecting that argument, the appellate court noted the 

losing party utilized both local counsel and out-of-town attorneys from two national law 

firms, with the latter having taken “‘the laboring oar.’” (Id. at p. 583.) The case does not

hold that out-of-market rates must be applied if all parties hire out-of-town counsel.

Equally unhelpful is NCRA’s argument the trial court “did not acknowledge the 

expert testimony of Richard Pearl” or adopt his opinions as its own. “‘The value of legal 

services performed in a case is a matter in which the trial court has its own expertise.’”

(PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096.) Attorney Pearl’s 

qualifications are not in dispute, but his opinions were generalized and conclusory with 

regard to the work performed by NCRA’s counsel in this particular action. “Certainly, 

the trial court was not bound by the contrary opinions submitted by [NCRA’s] expert.”

(569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 

Cal.App.5th at p. 438; accord, PLCM Group, Inc., at p. 1096.)
12.

IV. The Trial Court Permissibly Reduced the Number of Compensable Hours

The following principles have recurring application to NCRA’s category-by 

category arguments regarding the trial court’s disallowance of hours documented in the 

billing records of NCRA’s counsel.

“The party seeking fees has the burden to prove that the trial court abused its 

discretion in awarding less than the amount it sought.” (Save Our Uniquely Rural 

Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 

1184.) “Abuse of discretion review ‘“asks in substance whether the ruling in question 

‘falls outside the bounds of reason’ under the applicable law and the relevant facts 

[citations].”’ [Citation.] The trial court’s ruling will not be reversed if reasonable people 

could disagree as to the proper outcome.” (Ibid.)

Attorney fee awards must be “‘fully compensatory,’” meaning “parties who 

qualify for a fee should recover compensation for ‘all the hours reasonably spent.’”

(Roth v. Plikaytis (2017) 15 Cal.App.5th 283, 290, quoting Ketchum v. Moses, supra, 24 

Cal.4th at p. 1133.) NCRA’s lawyers are not entitled to compensation for all of their 

work “merely because it was performed.” (Baxter v. Bock (2016) 247 Cal.App.4th 775, 

793.) “It was their burden to persuade the trial court the work was reasonably necessary, 

both as to the particular tasks performed and the amount of time devoted to them.”

(Ibid.)

NCRA cites Moreno v. City of Sacramento (9th Cir. 2008) 534 F.3d 1106 as 

authority for an alleged rule that trial courts must explain any and all disallowances of 

hours actually worked by counsel. A similar argument was rejected in Mikhaeilpoor v. 

BMW of North America, LLC (2020) 48 Cal.App.5th 240. “Moreno ... is not binding on 

this court and it is distinguishable.” (Id. at p. 250.) California state trial courts “are not
13.

required to state ‘each charge they find to be reasonable or unreasonable, necessary or 

unnecessary.’”

2

(Mikhaeilapoor, supra, at p. 250, italics added.)

A trial court’s fee adjustments will not be disturbed unless the reviewing court is 

unable to rationalize them. (See Gorman v. Tassajara Development Corp. (2009) 178 

Cal.App.4th 44, 101.) “It is not the absence of an explanation by the trial court that calls 

the award ... into question, but its inability to be explained by anyone, either the parties 

or [the] appellate court.” (Ibid.) If a reasonable explanation is inferable from the record, 

the decision will be upheld. (California Common Cause v. Duffy (1987) 200 Cal.App.3d 

730, 754.)

Counsel’s billing records are the “starting point” for the trial court’s lodestar 

determination. (Horsford v. Board of Trustees of California State University, supra, 132 

Cal.App.4th at p. 397.) Bill “‘padding’ in the form of inefficient or duplicative efforts is 

not subject to compensation.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) Trial 

courts may therefore adjust fee awards to account for the inefficiency of having partners 

or senior attorneys performing work that could be handled by associates or paralegals. 

(See Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41 [“The court 

reasonably could have reduced the rates based on its finding ... that the name partners 

were doing work that could have been done by lower billing attorneys”]; Save Our 

Uniquely Rural Community Environment v. County of San Bernardino, supra, 235 

2NCRA further purports to rely on Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 

88, which is also distinguished in the Mikhaeilpoor opinion. (Mikhaeilpoor v. BMW of North 

America, LLC, supra, 48 Cal.App.5th at pp. 248–250.) According to NCRA, Kerkeles shows

“Moreno’s analysis ... has been followed by California courts.” What NCRA fails to mention is 

that Kerkeles involved fees awarded under a federal statute, which is why the Kerkeles court 

relied on federal case law. (See Kerkeles, at pp. 99 [“Because the entitlement arises under 

federal law, ‘we follow the federal standard for determining section 1988 [of title 42 of the 

United States Code] issues’”], 104 [concluding “that the reasoning expressed in the court’s order 

does not meet the federal criterion of a clear and specific explanation sufficient for meaningful 

appellate review”].)
14.

Cal.App.4th at p. 1187 [“The trial court could reasonably have determined that billing at 

partner rates for these activities was excessive”].)

“A trial court is also justified in reducing a claim if it believes the billing is 

unjustly inflated.” (Save Our Uniquely Rural Community Environment v. County of San 

Bernardino, supra, 235 Cal.App.4th at p. 1186.) “Block billing, while not objectionable 

per se,” may preclude a fee claimant from meeting its burden of demonstrating the 

reasonableness of time spent on various tasks. (Christian Research Institute v. Alnor

(2008) 165 Cal.App.4th 1315, 1325.) Where counsel’s billing entries show “a lack of 

clarity in tasks performed,” the vagueness may be construed on appeal as “evidence 

support[ing] the trial court’s finding that [the fee claimant’s] counsel failed to act 

efficiently.” (Mikhaeilpoor v. BMW of North America, LLC, supra, 48 Cal.App.5th at p. 

256.)

We now address NCRA’s category-by-category arguments.

A. Reviewing the Complaint and Drafting NCRA’s Answer

1. Background

According to the declaration of Stephan C. Volker and billing records attached 

thereto, Volker spent 1.3 hours reviewing Westlands’ validation complaint in December 

2019 and e-mailing other defense counsel regarding the same. Volker’s senior associate 

attorney, Alexis Krieg, spent 2.3 hours reviewing the complaint and its exhibits and 

sending an e-mail to Volker regarding the same. Krieg had been licensed for about 15

years.

Attorney Volker billed 11.2 hours for performing legal research in relation to the 

complaint. His billing records contain five separate entries for this task between 

December 4 and December 10, 2019, all described as “Legal research re: validation 

complaint.” The last of those entries also said, “and emails with co-counsel.” On 
15.

December 11, 2019, Volker also billed 1.5 hours for “Factual research re: validation 

complaint.”

Next, Volker billed 14.9 hours over the course of three days to draft NCRA’s 

eight-page verified answer to the complaint. Two of the billing entries said, “Prepare 

Answer.” The third said, “Prepare Answer to WWD Complaint.” All told, accounting 

for another tenth of an hour billed by Volker plus some paralegal work, NCRA claimed 

31.3 attorney hours (29 at Volker’s rate) and 2.1 paralegal hours to review the complaint 

and prepare (and file) the answer.

The trial court’s ruling for this category was as follows: 

“NCRA’s lodestar hours appear to be somewhat inflated and the court will 

reduce them accordingly. For example, NCRA’s attorneys claim to have 

spent 33.4 hours [inclusive of paralegal time] on reviewing the Complaint 

and drafting the Answer. [Citation.] Spending so much time on relatively 

simple tasks appears to have been unwarranted, especially where the 

Complaint and Answer were each only 8 pages long (although the 

Complaint also included many pages of exhibits). Also, most of the time 

was incurred by the senior attorney, Mr. Volker, who bills at $750 per hour, 

when presumably many of the tasks could have been performed by an 

associate billing at a lower rate. The court intends to allow only 15 hours 

of attorney time for these tasks, with ten hours allocated to the associate’s 

billing rate and five hours allocated to the senior attorney’s billing rate. 

The court will also allow two hours of paralegal time.”

2. Analysis

Westlands’ validation complaint contained eight numbered pages, but the entirety 

of the first page was the caption and the last page contained only five lines of substantive 

text. It was basically a six-page pleading. There were also two exhibits. Exhibit “A”

consisted of two documents: a five-page resolution passed by Westlands’ Board of 

Directors and a roughly 75-page draft of the contract at issue in the validation action. 

Exhibit “B” was a virtually identical copy of the same draft included with exhibit “A.”

Several hours of time to review the complaint and perform research was 

warranted. However, we see nothing unreasonable about the trial court’s limitation of 15 
16.

total attorney hours for reviewing the complaint, conducting research, and preparing the 

answer. NCRA offers no persuasive explanation of how or why it took nearly 15 hours

to draft the answer after the research had already been performed. And no explanation 

has been provided for why nearly all the work was done by Volker and not his senior 

associate.

NCRA’s answer is eight total pages, plus a signed verification page. The first 

page is mostly taken up by the caption. There are approximately three lines of 

substantive text on the first page, asserting that no response is required to the first two 

paragraphs of the complaint. The second and third pages of the answer contain 23 singlesentence responses to the remaining paragraphs of the complaint. Eight of those 

responses state, “Defendants lack information and belief sufficient to answer the 

allegations ..., and on that basis deny each and every allegation therein.”

The fourth and fifth pages of the answer, and the first six lines of the sixth page, 

are characterized as “affirmative factual allegations.” However, they merely provide 

background information on each of the six defendants. For example:

“Defendant NORTH COAST RIVERS ALLIANCE (‘NCRA’) is a nonprofit unincorporated association with members throughout Northern 

California. NCRA was formed for the purpose of protecting California’s 

rivers and their watersheds from the adverse effects of excessive water 

diversions, ill-planned urban development, harmful resource extraction, 

pollution, and other forms of degradation. Its members use and enjoy 

California’s rivers including the Sacramento River, the San Joaquin River, 

their Delta (‘the Delta’) and their watersheds for recreational, aesthetic, 

scientific study, and related non-consumptive uses. The interests of NCRA 

and its members will harmed [sic] by the continued reduction in and 

pollution of the freshwater flows in the Delta, degradation of its water 

quality, and loss of its fish and wildlife species that validation of the 

Converted Contract would cause.”

It is a matter of public record that attorneys Volker and Krieg had been 

representing at least half of the NCRA defendants for many years prior to this validation 

action, including in cases against Westlands. (E.g., North Coast Rivers Alliance v. 
17.

Westlands Water Dist. (2014) 227 Cal.App.4th 832, 838.) NCRA acknowledges some of 

the prior representation in its briefing. These attorneys were also actively representing all 

the NCRA defendants in other cases when the present lawsuit was filed. (See Pacific 

Coast Federation of Fishermen’s Associations v. Glaser (9th Cir. 2019) 945 F.3d 1076; 

North Coast Rivers Alliance v. U.S. Dept. of Interior (E.D.Cal. 2018) 313 F.Supp.3d 

1199.) The long-standing attorney/client relationship and the litigation history with 

Westlands call into question how much research and writing time was needed to draft the 

verified responses and “affirmative factual allegations” sections of the answer. 

Moreover, the detailed background information on each defendant is reasonably viewed 

as unnecessary and an inefficient use of attorney time.

The remainder of the sixth page and entire seventh page of the answer lists 

NCRA’s affirmative defenses. The final page consists of a prayer for relief and signature 

block. NCRA fails to demonstrate an abuse of discretion regarding the trial court’s 

assessment of the first category of billing events.

B. Opposition to Westlands’ Validation Motion

1. Background

The declaration of Stephan C. Volker labels the second category of tasks as 

“Prepare Opposition to Westlands’ Validation Motion 12/18/19 – 1/14/20 – 36.1 Hours.”

(Boldface omitted.) This heading is slightly misleading for two reasons. First, 

Westlands’ motion was not filed until December 30, 2019. Second, despite identifying 

“12/18/19” as the starting point for this category, NCRA’s stated total of “36.1” hours 

included 1.3 hours of paralegal time on December 17, 2019, for tasks concerning the 

rejection of its answer for failure to pay all required filing fees. NCRA also included 1.2 

hours of paralegal time on December 18, 2019, in relation to the same issue. Attorney 

Volker billed one hour on December 24, 2019, for “Factual research re WWD contracts.”
18.

Attorney Krieg billed 24.9 hours for reviewing Westlands’ motion, conducting 

research, and drafting NCRA’s opposition. The time spent was broken down across 

seven billing entries, some of which were appropriately specific. However, there was a 

block billed entry for 12.4 hours that said, “Perform research, review documents, draft 

opposition to Motion for Validation Judgment; prepare declaration and appendix of 

exhibits in support of the same.”

Attorney Volker billed 10 hours for tasks associated with opposing the motion, 

including the hour of research on December 24, 2019. There was some block billing, i.e., 

combining “Emails with co-counsel” with “edit draft opposition to WWD motion for 

validation” in blocks of 2.1 hours and 5.2 hours. Another entry for 1.7 hours combined 

“Review WWD’s Motion for Validation” with “emails with co-counsel.”

The trial court ruled as follows:

“This amount of time appears to be excessive. While the motion and 

opposition did raise some fairly complicated legal issues, it was not 

reasonable to spend over 36 hours of time on these tasks. The court will 

permit 20 hours of attorney time, with 15 hours allocated to the associate’s 

billing rate and five hours allocated to the senior attorney’s rate. The court 

will also allow 1 hour billed at the paralegal rate.”

2. Analysis

Westlands’ motion papers included a memorandum with 15 pages of substantive 

text. There were two supporting declarations, and the exhibits to one of the declarations 

were voluminous. However, NCRA’s counsel was already familiar with nearly all of 

those exhibits from their work reviewing the complaint and preparing the answer, and

from their representation of NCRA in prior and other actively pending litigation against 

or involving Westlands. For example, one of the exhibits was a copy of the published 

opinion in North Coast Rivers Alliance v. Westlands Water Dist., supra, 227 Cal.App.4th 

832. Several other exhibits were earlier contracts between Westlands and the United 
19.

States Bureau of Reclamation that were either at issue in, or parts of the records in, other 

cases in which NCRA’s counsel was and/or had been involved.

The trial court’s disallowance of 14.9 attorney hours is somewhat harsh given the 

potentially dispositive nature of the motion, but still within the limits of its discretion 

considering all the circumstances and some of the block billing. NCRA focuses on the 

size of the exhibits attached to its opposition brief (to be clear, not the exhibits to 

Westlands’ motion) and the effort it took to compile them, but its attorneys were not 

billing to create the content of those exhibits. Attorney Krieg assembled nine documents 

and chose the order in which they would be presented. Block billing prevented the trial 

court from knowing how much time was actually spent on that task.

C. Additional Work re: Westlands Validation Motion

1. Background

Attorney Volker’s declaration labeled the third category of work as “Review 

Order Denying Westlands’ Motion for Validation 1/15/20 – 4/28/20 – 34.2 Hours.”

(Boldface omitted.) This was quite a misnomer since the referenced court order was not 

issued until March 16, 2020. The claimed 34.2 hours also included work pertaining to an 

appeal of part of the motion ruling, and as well as a case management conference (CMC) 

statement.

Attorney Krieg billed six hours for various tasks related to reviewing Westlands’

reply brief in support of its validation motion (10 pages of substantive text) and preparing 

for the motion hearing. The motion hearing was continued by the trial court, sua sponte, 

from late January 2020 to February 27, 2020. Westlands made an unsuccessful ex parte 

request to have the motion heard earlier. Attorney Volker spent 11.5 hours on tasks 

related to the motion hearing, including block billed entries of 3.6 hours for “Review 

Tentative Ruling on WWD motion and prepare for hearing; emails with co-counsel” and 

3.5 hours for “Prepare for and attend hearing on WWD’s motion for validation.”
20.

On March 18, 2020, attorney Volker billed 2.2 hours for “Review Final Order; 

emails with co-counsel.” The “Final Order” was the trial court’s minute order denying 

Westlands’ validation motion and adopting the previously issued tentative ruling that 

Volker had already reviewed when preparing for the motion hearing. Between March 24, 

2020, and April 10, 2020, Volker billed 1.8 hours for research and communication with 

other defense counsel regarding their appeal of the finding their answers to the complaint 

were untimely. Attorney Krieg billed 5.8 hours in April 2020 for tasks related to filing 

NCRA’s appeal. Those hours included two identical, duplicative 0.2 entries on April 9, 

2020, regarding filing fees.

The trial court ruled as follows: 

“NCRA’s counsel also claims to have spent 34.2 hours preparing for and 

appearing at the hearing on the validation motion, as well as reviewing the 

trial court’s order denying the motion. [Citation.] Ms. Krieg spent 13.6 

hours on these tasks, and Mr. Volker spent another 16.8 hours on them. 

[Citation.] Ms. Krieg also spent 3.8 hours on paralegal tasks. [Citation.] 

Again, the time spent on these tasks was excessive. The court will allow 

only one hour of attorney time for preparing for and appearing at the 

hearing, as well [as] another hour to review the court’s order, all billed at 

the associate’s rate. The court will also allow one hour of paralegal time 

for this task.”

2. Analysis

The trial court’s analysis of this category was flawed, but NCRA has itself to 

blame for some of the confusion. The trial court’s numbers were recited from attorney 

Volker’s declaration, which contained miscalculations and misstatements about the work 

performed during the subject period of January 15, 2020, through April 28, 2020. The 

way his declaration was phrased made it seem like he was claiming hours only in relation 

to the motion hearing and his review of the motion ruling.

Attorney Krieg billed 15 total hours during the time period in question, and 3.4 of 

those hours were unrelated to the validation motion. Attorney Volker billed 16.8 hours 

between the subject period of January 15, 2020, through April 28, 2020, but one hour 
21.

pertained to a joint motion to stay and other time was spent on preliminary appellate 

work. A total of 3.8 paralegal hours were billed during the subject period, but 1.4 of 

those hours pertained to the CMC statement.

The trial court’s award of only two attorney hours and one paralegal hour would 

have been unreasonable given the correct numbers and varied tasks. However, as 

explained in the background section of this opinion, ante, the trial court’s final award 

includes an additional $3,884.78 beyond what is reflected in its category-by-category 

explanation of the compensable time. The extra sum translates to about 7.4 attorney 

hours at the hourly associate rate of $350 (before applying the multiplier). Applying 

some of those hours to this category puts the trial court’s decision within the limits of its 

discretion.

A separate discussion is warranted regarding NCRA’s first CMC statement, which 

the parties address in their briefing. The amount of time billed in connection with this 

document was clearly excessive. On February 12, 2020, attorney Krieg billed 1.8 hours 

for “Prepare Case Management Statement, review and edit the same.” Attorney Volker 

billed 0.3 hours to edit the CMC statement. Krieg then billed 1.4 hours to “[f]inalize and 

electronically file Case Management Statement.” Krieg also billed 1.4 paralegal hours

for the exact same task, i.e., finalizing and filing the CMC statement.

In total, per the billing records, NCRA’s lawyers claimed to have spent 3.5 hours 

of attorney time and 1.4 hours of paralegal time to prepare a CMC statement. This is 

difficult to imagine. The document was a standard Judicial Council form (CM-110, rev. 

July 1, 2011) that mostly required checking boxes.

NCRA’s counsel checked 10 boxes and typed a few sentences on the form. 

Counsel also included a two-page attachment with further responses to questions 1b and 

4b. The response to 1b listed the names of all six NCRA defendants. The response to 4b 

was, as NCRA now describes it in their appellate briefing, an “analysis discussing 

numerous reasons why Westlands’ Validation Complaint was contrary to law....” But 
22.

question 4b did not call for such a response. It merely instructed the filing parties to 

“[p]rovide a brief statement of the case, including any damages.” What NCRA’s counsel 

wrote was unnecessary and an inefficient use of attorney time, and it should not have 

taken as long to prepare as claimed. A severe reduction in the time allowed for this task 

was justified.

D. Motion to Stay and Second CMC Statement

1. Background

The fourth category of tasks covered the period of April 29, 2020, through 

May 12, 2020. During this time, NCRA and two sets of codefendants worked on 

preparing a joint motion to stay the trial court proceedings while their appeals were 

pending. The motion was filed on May 12, 2020, and it contained 11 pages of 

substantive text (excluding the notice page).

Attorney Volker billed 3.1 hours for reviewing and editing drafts of the motion, 

plus 1.3 hours in block billed time for e-mailing codefendants’ counsel regarding the 

same. Attorney Krieg billed 0.3 hours for reviewing “correspondence regarding” the 

drafts of, and edits to, the motion. In total, 4.7 attorney hours were billed regarding the 

motion to stay.

On April 29, 2020, Volker billed 1.3 hours for preparing a CMC statement.

Attorney Krieg billed 0.2 paralegal hours to finalize and file the CMC statement. Krieg 

also billed 0.2 attorney hours to “[r]eview Case Management Statements.”

The trial court ruled as follows:

“NCRA claims to have spent 6.4 hours on preparing a joint motion to stay 

the court proceedings while their appeal of the court’s order finding their 

Answers to be untimely was pending, as well as preparing a case 

management conference statement. [Citation.] Mr. Volker spent 0.5 hours 

on this task, and Ms. Krieg spent 5.7 hours. Ms. Krieg also spent another 

0.2 hours on paralegal tasks during this time. [Citation.] However, since 

the motion to stay was brought jointly with the other defendants and they 

presumably shared the work, and since the case management conference 
23.

statement was virtually identical to prior statements filed by NCRA, the 

court intends to reduce the hours spent on this task to only three hours of 

attorney time billed at the associate’s rate. The court will also allow the 0.2 

hours of paralegal time.”

2. Analysis

The trial court misstated the attorney hours billed by Volker and Krieg. It was 

Volker who billed 5.7 hours and Krieg who billed 0.5 hours, not the other way around. 

However, since it viewed the work as warranting only three hours of associate time, the 

misstatement does not suggest reversible error. The record indicates the lawyers for 

codefendants California Water Impact Network et al. did the bulk of the motion work and 

were separately awarded 18 hours of attorney time for their efforts. NCRA’s attorneys 

evidently failed to carry their burden below of showing the necessity and/or efficiency of 

spending nearly five hours of attorney time to review and edit the work of other defense 

counsel. NCRA likewise fails to affirmatively demonstrate reversible error on appeal.

Regarding the CMC statement, NCRA contends “this was the first [CMC 

statement] that NCRA filed in this case” and could not have been “‘virtually identical’”

to a previous version. However, NCRA’s Appellant’s Appendix at page 2622 shows 

NCRA filed a CMC statement on February 13, 2020. Therefore, the 1.5 hours billed by 

Volker and Krieg on April 29, 2020, could not have been in relation to “the first ... filed 

in this case.” Furthermore, we are unable to locate the April 2020 CMC statement in the 

record and thus cannot determine whether it was or was not, as stated by the trial court, 

“virtually identical” to the previous one. NCRA has therefore failed to meet its appellate 

burden on this issue as well.

E. Reply Brief re: Joint Motion to Stay; Further Appellate Work; 

Opposition to Westlands’ First Renewed Validation Motion

1. Background 

NCRA claimed a total of 33.3 attorney hours and 10.2 paralegal hours for work 

performed between May 13, 2020, and August 20, 2020. Attorney Volker billed 20.5 of 
24.

those hours, which included work on a reply brief in support of the joint motion to stay; 

work on an opposition to a motion by Westlands to dismiss NCRA’s appeal; and drafting 

an opposition to Westlands’ “Renewed Motion for Validation of Contract.” Westlands’

“renewed” motion was filed on July 27, 2020.

When Westlands’ July 2020 renewed motion was filed, the only parties then 

recognized by the trial court as proper defendants in the action were the separately 

represented Central Delta Water Agency and South Delta Water Agency (collectively, 

CDWA). CDWA filed an opposition brief on August 10, 2020. Soon afterward, the trial 

court granted the joint motion to stay. Westlands’ (first) renewed motion was never ruled 

upon; it was essentially abandoned and superseded by the filing of a second renewed 

motion in September 2021. The sequence of events is discussed in Westlands Water Dist.

v. All Persons Interested, supra, 95 Cal.App.5th at page 120.

The trial court was initially unwilling to allow the hours claimed by attorney 

Volker in connection with CDWA’s opposition to Westlands’ first renewed motion. 

However, during the hearing on NCRA’s fees motion and in other written submissions, 

Volker claimed CDWA’s opposition brief was ghostwritten by him. The CDWA 

defendants did not seek attorney fees, and the trial court ultimately awarded all time 

claimed by NCRA for the fifth category.

2. Analysis

Because the trial court awarded all attorney and paralegal hours requested by 

NCRA for this category, there are no related claims to analyze. We note NCRA and its 

attorneys received full compensation for 11.1 hours billed by attorney Volker for writing 

CDWA’s opposition to Westlands’ first renewed validation motion. It will be important 

to remember this fact when we discuss the tenth category of tasks, post.
25.

F. Appellate Work (“8/21/20 – 10/13/20”)

1. Background

The sixth category pertained to NCRA’s opening brief and Appellants’ Appendix 

in Westlands Water Dist. v. North Coast Rivers Alliance, supra, F081174 (hereafter 

F081174). NCRA’s opening brief (AOB) contained 27 pages of substantive text. The 

appendix consisted of 11 items comprising roughly 162 pages, including a 25-page 

register of actions from the trial court.

Attorney Volker billed 19.3 hours for writing the AOB. His time was documented 

in seven block billed entries that said, “Draft Appellants’ Opening Brief,” and an eighth 

entry, “Edit Appellants’ Opening Brief.” Attorney Krieg billed four hours for similar 

tasks, e.g., “Review files and draft Appellants’ Opening Brief ... 1.5 [hours]” and “Draft 

Appellants’ Opening Brief ... 1.7 [hours].” Krieg also billed 1.4 paralegal hours to 

finalize and file the AOB.

The trial court found the billing excessive. It awarded 15 total attorney hours, 

allowing 11 hours at Volker’s rate (a reduction of 8.3 hours) and four hours at Krieg’s 

rate. One hour of paralegal time was allowed (a reduction of 0.4 hours).

2. Analysis

“When we are reviewing an award of attorney fees for appellate work, we need 

not accord the same degree of deference we would give to rulings that involve the trial 

court’s firsthand knowledge.” (Center for Biological Diversity v. County of San 

Bernardino, supra, 188 Cal.App.4th at p. 616.) This does not mean the appellate court 

can or should completely disregard the trial court’s assessment and decide the issue de 

novo. It means “we may exercise ‘“somewhat more latitude in determining whether there 

has been an abuse of discretion than would be true in the usual case.”’” (Ibid.)

We note the 27-page AOB, filed September 17, 2020, contains approximately 

eight pages of text copied and pasted, with very few edits or additions, from NCRA’s 

opposition to Westlands’ original validation motion, which NCRA had filed in the trial 
26.

court eight months earlier. The copied sections of the earlier work product are at pages 

716 through 721 of the Appellants’ Appendix in the current record on appeal. As for the 

remaining 19 pages (estimated) of new content, we observe that significant portions of 

the briefing contain large block quotes of statutory text and various rules of court.

Attorney Volker’s generic billing descriptions, e.g., “Draft Appellants’ Opening Brief,”

preclude further analysis of whether the 8.3 attorney hours disallowed by the trial court 

were necessary and efficiently spent. For these reasons, we cannot say the trial court’s 

decision was “‘clearly wrong.’” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 

1095.)

G. Further Appellate Work (“10/14/20 – 11/4/20”)

1. Background

The seventh category of tasks involved reviewing Westlands’ respondent’s brief in 

F081174, preparing NCRA’s reply brief, and opposing Westlands’ motion to augment the 

appellate record. Attorney Volker billed 4.4 hours for “Email with co-counsel re 

Appellants’ Reply Brief and review Westlands’ Respondent’s Brief.” Volker also block 

billed 17.6 hours across four other time entries for the combined tasks of unspecified 

legal research, e-mails with other defense counsel, and drafting/editing NCRA’s reply 

brief.

Attorney Krieg billed 3.9 hours for the combined tasks of performing legal 

research and drafting an opposition to Westlands’ motion to augment. Krieg separately 

billed 6.2 hours to “[p]erform legal research and draft memo to Mr. Volker regarding the 

same in support of Appellants’ Reply Brief.” There was an additional billing entry of 1.3 

hours for unspecified research, and 3.8 paralegal hours block billed for the combined 

tasks of finalizing and filing NCRA’s reply brief and opposition to the motion to 

augment.

The trial court ruled as follows:
27.

“NCRA also claims to have incurred 37.2 hours on reviewing Westlands’

respondent’s brief on appeal, opposing Westlands’ motion to augment the 

record, and preparing the reply brief. NCRA incurred 33.4 hours of 

attorney time (11.4 hours by Ms. Krieg and 22 hours by Mr. Volker), plus 

3.8 hours of paralegal time. [Citation.] This amount of time appears to be 

excessive. The court will award 15 hours of attorney time for these tasks, 

with five hours to Ms. Krieg and ten hours to Mr. Volker, plus two hours of 

paralegal time.”

2. Analysis

NCRA’s reply brief in F081174 contained approximately 29 pages of substantive 

text. However, large portions of the reply brief at pages 22 through 25 were simply 

copied and pasted (with minimal edits or changes) from the previously filed AOB, 

specifically pages 25 through 28. Portions of the reply brief at pages 28 and 30–32 were 

similarly copied from the AOB at pages 28 and 30–31.

Furthermore, due to vague time entries, the nature of counsel’s legal research is 

entirely unclear. Likewise with regard to the amount of time spent researching, as 

opposed to writing, the reply brief. The main issue in F081174 was whether, for 

purposes of meeting a filing deadline, the date of a trial court’s receipt of an 

electronically submitted pleading constitutes the filing date of the pleading. There was 

very limited authority on the issue, both in terms of case law and applicable statutes and 

rules of court. It is thus unclear and difficult to reasonably infer what, exactly, NCRA’s 

counsel spent so much time researching at the reply brief stage. A second issue 

concerning appellate jurisdiction was also addressed in the reply brief, but NCRA had 

already filed a separate opposition to Westlands’ motion to dismiss.

Westlands’ motion to augment the record contained less than a page of substantive 

text and was cited only for procedural background in the respondents’ brief. NCRA’s 

two-page opposition, for which attorney Krieg billed 3.9 attorney hours and additional 

paralegal time, was unsuccessful and frankly, in this court’s view, unnecessary. NCRA 

fails to demonstrate reversible error as to the eighth category of work.
28.

H. Further Appellate and Postappeal Work (“12/30/20 – 5/25/21”)

1. Background

Oral argument in F081174 was held on the afternoon of February 24, 2021. 

Attorney Krieg billed 0.3 attorney hours and 0.3 paralegal hours to fill out and return the 

oral argument questionnaire. On February 22, 2021, Krieg billed 1.5 hours for assisting 

attorney Volker with general preparation for the argument. The next day Krieg billed 1.1 

hours for “legal research” and corresponding with Volker about the upcoming argument. 

On the day of oral argument, Krieg billed another 3.7 hours for further unspecified “legal 

research.”

Attorney Volker billed 29.8 hours for his oral argument preparation and court 

appearance. This included a block billed time entry of 6.8 hours on the day of argument: 

“Prepare for and participate in oral argument on appeal, and emails with co-counsel.” 

Next, on March 9, 2021, Volker billed 1.2 hours to “[r]eview Court of Appeal Ruling,”

i.e., the 13-page unpublished opinion in F081174. Attorney Krieg also billed for 

reviewing the opinion, but it only took her 0.3 hours.

Between March 12 and March 25, 2021, Volker billed 3.5 hours to prepare for and 

attend a CMC. Attorney Krieg billed 0.9 attorney hours and 0.4 paralegal hours in 

connection with the same CMC. Volker also billed 0.3 hours for client e-mails.

The trial court found the billing excessive. It allowed only four hours of attorney 

time: three hours at Volker’s rate and one hour for Krieg. An additional 30 minutes was 

allowed for paralegal time.

2. Analysis

The oral argument in F081174 was approximately 45 minutes in duration.

Attorney Volker’s opening argument lasted approximately 15 minutes, and most of the 

time was spent reading directly from prepared remarks. Much of the prepared material 

was clearly taken from NCRA’s AOB and reply brief. For example, Volker spent the 
29.

first three minutes reciting, verbatim, the introduction section of the AOB. Volker’s 

rebuttal argument lasted approximately eight minutes. 

NCRA insinuates some of the research in preparation for the F081174 oral 

argument concerned a supplemental authority letter filed by Westlands a few days before 

the argument. That letter, filed in accordance with rule 8.254 of the California Rules of 

Court, merely noted the statute at issue (Code. Civ. Proc., § 1010.6) had been amended 

the previous month. NCRA also claims its attorneys’ extensive oral argument 

preparation was necessary to work through the complex issues and refute the positions 

taken by Westlands. The argument is not persuasive because that is presumably what 

counsel had already billed for during the preliminary and brief-writing stages of the 

appeal.

Due to the vague billing entries, the time spent on research was not clearly 

justified. Oral argument is not the time or place for new legal arguments, so the need for 

so much late-stage research is not apparent (e.g., 3.7 hours of research on the day of 

argument). (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The 

Rutter Group 2023) ¶ 10:22, p. 10-5.) We also agree with the trial court as to the 

seemingly excessive and inefficient amount of preparation time. It does not take hours of 

preparation to simply read from the briefs. (See id., ¶ 10:22 [“oral argument should not

be used to repeat the facts and arguments set forth in the briefs; indeed, most courts 

expressly disfavor such approach”].) Billing 1.4 hours to review the 13-page opinion in 

F081174 seems excessive as well. We defer to the trial court on the CMC work.

Here again, NCRA does not meet its appellate burden to demonstrate grounds for 

reversal. The trial court was perhaps harsher in its reductions than this court might have 

been, but it was not clearly wrong. As with the third category, discussed ante, any doubts 

would be resolved by the trial court’s additional award of $3,884.78 beyond what is 

reflected in its category-by-category explanations.
30.

I. Mandatory Settlement Conference

The ninth category of work covered the period of June 4, 2021, through July 22, 

2021. Attorney Volker billed 4.8 hours for “post-remand activities” including 

preparation of a mandatory settlement conference (MSC) statement. Attorney Krieg 

billed 3.9 attorney hours and 1.1 paralegal hours for similar MSC-related tasks.

The trial court allowed five attorney hours: three at Volker’s rate and two at 

Krieg’s rate. One hour of paralegal time was allowed. NCRA does not challenge these 

reductions in its briefing. Any related claims have been forfeited. (Swain v. LaserAway 

Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72.)

J. Everything Else

1. Background

NCRA’s fees motion claimed approximately 75 attorney hours and six paralegal 

hours for all work performed between September 1, 2021, and April 4, 2022. The claim 

was broken down into four smaller categories for work on NCRA’s “Opening Trial 

Brief” (the actual filing was labeled “Opening Merits Brief”); “Reply Trial Brief”

(originally filed as “Reply Merits Brief”); “Preparation for and Participation in Merits 

Hearing”; and “Post-Merits Hearing Preparation of Judgment and Writ.” The “writ”

reference was never explained and appears to have been a drafting error by NCRA’s 

counsel. The trial court’s ruling addressed everything in one final category of tasks.

Attorney Volker billed 72.1 hours during the subject time period. Attorney Krieg 

billed 2.7 attorney hours and 6.2 paralegal hours. NCRA’s motion papers alleged Krieg’s 

attorney and paralegal hours were 1.5 and 7.4, respectively, but NCRA evidently mixed 

up Krieg’s billing of 1.2 hours on September 17, 2021, which she in fact documented as 

paralegal time.

Most relevant is Volker’s billing of 40.9 hours to write the Opening Merits Brief. 

The work was documented in seven different time entries, each stating, “Prepare Opening 

Merits Brief.” An eighth entry said, “Proofread Opening Merits Brief.”
31.

Attorney Volker subsequently billed 3.7 hours to review Westlands’ “Merits 

Brief,” referring to its second renewed validation motion. Volker then billed 3.7 hours 

for unspecified legal research for NCRA’s reply, and 12.9 hours to write the reply. The 

latter work was documented in seven billing entries described only in terms of drafting, 

editing, and proofreading “NCRA Reply Brief.”

Westlands challenged the reliability of the billing records, pointing out that “large 

sections of [the] work product”—specifically as to NCRA’s Opening Merits Brief—were 

“copied and pasted from previous filings.” In a supporting declaration, Westlands’

counsel explained the process she and her staff used to detect the cut-and-paste job and 

attached documentation to illustrate it. As we will discuss, there was even more copying 

than Westlands realized.

The trial court ruled as follows (original paragraph split for readability):

“Finally, NCRA seeks 45.6 hours for preparing their opening trial brief

(40.9 hours by Mr. Volker with 4.7 hours of paralegal work), 23.0 hours for 

preparing the reply brief (20.3 hours by Mr. Volker and 2.7 hours of 

paralegal work), and 6.4 hours to prepare for and appear at the merits 

hearing (0.7 hours by Ms. Krieg and 5.7 hours by Mr. Volker), plus another 

6.0 hours on preparing the judgment, communicating with counsel, and 

participating in status conferences (0.8 hours by Ms. Krieg and 5.2 hours by 

Mr. Volker). Thus, NCRA claims to have incurred a total of 81 hours for 

all of these tasks.

“[B]ut the court finds that a more reasonable number is 18 hours of attorney 

time, with one hour by Ms. Krieg and 17 hours by Mr. Volker, plus two 

hours of paralegal time.”

2. Analysis

“Where, as here, the trial court severely curtails the number of compensable hours 

in a fee award, we presume the court concluded the fee request was padded.” (Christian 

Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1325.) The trial court may have 

held back on its explanation in order to save NCRA’s counsel from embarrassment. By 

pressing the issue on appeal, NCRA forces this court to be more explicit.
32.

NCRA’s “Opening Merits Brief” contains 25 pages of substantive text. The 

substantive material is located in the Appellants’ Appendix (AA) of the current appellate 

record at pages 3025 through 3049. Because of the caption page and tables, the brief 

begins on page 8. The content at page 8, line 25 (AA 3025:25) through page 13, line 15

(AA 3030:15), including a lengthy footnote on page 10 (AA 3027), is mostly identical to 

and obviously copied from NCRA’s prior opposition to Westlands’ original validation 

motion (AA 716-721) and/or NCRA’s AOB in F081174 at pages 9 through 16.

In short, the vast majority of the first six pages of NCRA’s “Opening Merits 

Brief” (numbered as pp. 8–13) are copied from previously filed documents. The next 

four pages (numbered as pp. 14–17) appear to be newly created work product. But the 

copying resumes on page 18 (AA 3035) and continues through page 24 (AA 3041). This 

second chunk of copied material was clearly taken from CDWA’s opposition to 

Westlands’ first renewed validation motion (AA 2859:17 – AA 2866:23). As previously 

explained, attorney Volker took credit for writing the CDWA brief and was awarded 11.1 

hours for the earlier work.

The portion of NCRA’s “Opening Merits Brief” that was copied from the earlier 

CDWA brief ends at page 24, line 14 (AA 3041:14). The rest of page 24 appears to be 

new work product. However, the cut-and-paste resumes on the very next page (p. 25) 

(AA 3042) and continues through the end of the brief (p. 32) (AA 3049). This third 

chunk of copied material is again taken from NCRA’s earlier filed opposition to 

Westlands’ first validation motion (AA 722:24 – AA 730:25).

In summary, approximately 19 of the 25 pages in NCRA’s “Opening Merits Brief”

were cut and pasted from prior submissions. Put differently, roughly 75 percent of the 

brief was copied from previously filed documents. Yet attorney Volker billed 40.9 hours 

for drafting and editing the brief. The math works out to nearly seven hours billed for 

each page of fresh material, and that is before Krieg spent 1.2 hours of attorney time and 

3.5 paralegal hours finalizing the document. Even describing it in these terms does not 
33.

adequately convey the paucity of unrecycled text in the document. There are minor edits 

and additions to some of the copied work, but the operative word is minor.

There is nothing wrong with reusing or repurposing one’s own work product, but 

it takes far less time and skill to copy and paste old material than it does to create new 

content. As such, the trial court was within its discretion to disallow much of the time 

billed for NCRA’s “Opening Merits Brief.” The cumulative effect of what it viewed as 

excessive billing throughout the case would rationally explain the further reductions of 

time in the tenth category. “An attorney’s chief asset in submitting a fee request is his or 

her credibility, and where vague, block-billed time entries inflated with noncompensable 

hours destroy an attorney’s credibility with the trial court, we have no power on appeal to 

restore it.” (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at pp. 1325–

1326.)

DISPOSITION

The amount of the trial court’s fee award is affirmed. Westlands shall recover its 

costs on appeal.

PEÑA, Acting P. J.

WE CONCUR:

SMITH, J.

SNAUFFER, J.