Baer vs. Tedder

That second appeal resulted in a published appellate opinion, Baer v. Tedder (2025) 115 Cal.App.5th 1139. The 33-page appellate opinion (1) reduced the amount of the award from $113,532.50 to $101,805, but otherwise upheld the award against Tedder, and (2) found the trial court erred in denying the fee motion as to Kent. The Court of Appeal found the award of attorney fees was appropriate and authorized under Code of Civil Procedure sections 2023.030(a) and 2031.320(b). Upon remand, and consistent with the Court of Appeal’s decision, the trial court entered a new order granting the appellate attorney fee motion in the reduced amount of $101,805 and making the award joint and several as against Tedder and Kent.

Right to Recover Attorney Fees: On this motion, Baer now seeks the appellate attorney fees he incurred in connection with the appellate proceeding that resulted in Baer v. Tedder supra. Specifically, when all time spent in connection with this motion (including the time for the reply and the hearing) is added to the time spent on the appeal, Baer seeks a total of $359,092 in fees based on 455.4 hours of time.

As the Court of Appeal explained, “A statute authorizing an award of attorney's fees in the trial court ordinarily authorizes an award of fees incurred on appeal unless the statute specifically provides otherwise.” (Baer v. Tedder, supra, 115 Cal.App.5th at p. 1150.) Indeed, the court noted, “‘[I]t is established that fees, if recoverable at all— pursuant either to statute or parties’ agreement— are available for services at trial and on appeal.’” (Id. quoting Serrano v. Unruh (1982)32 Cal.3d 621, 637.)

As the court concluded, “Sections 2023.030(a) and 2031.320(b) authorize recovery of attorney’s fees and do not specifically preclude recovery of attorney’s fees on appeal. [Citation.] Sections 2023.030(a) and 2031.320(b)

therefore authorized Baer’s recovery of attorney’s fees expended in connection with the appeal of the sanctions order.” (Baer v. Tedder, supra, 115 Cal.App.5th at p. 1151.)

“Awarding appellate attorney’s fees under sections 2023.030(a) and 2031.320(b) is necessary to ensure their remedial and compensatory purposes are satisfied. An appeal of an award of monetary sanctions forces the litigant awarded those sanctions to incur yet more attorney’s fees to preserve an award intended as compensation for expenses incurred as a result of the sanctioned litigant’s misuse of the discovery process. An award of appellate attorney’s fees therefore would be necessary to provide full compensation to the litigant awarded sanctions. If sections 2023.030(a) and 2031.320(b) did not authorize recovery of appellate attorney’s fees, a sanctioned party could defeat the purpose of the sanctions by forcing the party awarded sanctions to incur the cost of an appeal.” (Baer v. Tedder, supra, 115 Cal.App.5th at p. 1152.)

The same rationale supports an award of attorney fees on the second appeal that resulted in the opinion of Baer v. Tedder, supra. Kent argues this rationale does not support a second award of attorney fees against him because he did not appeal the fee award that led to the second appeal because the trial court decision was in his favor—i.e., it did not award fees against him. Indeed, he argues he was the one that was forced to incur appellate attorney fees. This argument, however, ignores the Court of Appeal concluded the trial court erred and therefore directed the trial court to issue a new order holding Kent jointly and severally liable for the attorney fees on the first appeal.

As the Court of Appeal explained, the right to recover attorney fees as a monetary discovery sanction arises out of the initial, underlying discovery abuse. The party subject to that abuse (here, Baer) is entitled to recover all attorney fees he reasonably incurred as a result of that initial discovery abuse. (Baer v. Tedder, supra, 115 Cal.App.5th at p. 1152.) That right extends to the second appeal that was required for Baer to enforce his right to recover the attorney fees incurred on the first appeal against Kent.

Accordingly, the court concludes Baer is entitled to recover the attorney fees he incurred on the second appeal from both Tedder and Kent, jointly and severally.

Amount of Attorney Fees: As the Court of Appeal explained, “Lodestar is the presumptive method for calculating the amount of an attorney's fees award.

[Citation.] ‘[T]he lodestar is the basic fee for comparable legal services in the community.’ [Citation.] Lodestar has two components: (1) the number of hours reasonably expended and (2) the reasonable hourly rate of the legal professional. Lodestar is ‘the number of hours reasonably expended multiplied by the reasonable hourly rate.’ [Citation.] The lodestar figure may then be adjusted, based on a consideration of various factors, ‘to fix the fee at the fair market value for the legal services provided.’ [Citation.]” (Baer v. Tedder, supra, 115 Cal.App.5th at p. 1154.)

As stated above, on the prior appellate fee motion, the trial court awarded Baer $113,532.50 based on 148.3 hour and hourly rates ranging between $550 to $975. The appellate court arrived at its reduced award of $101,805 by reducing the number of hours allowed for the fee motion from 31.9 hours to 25 hours, and the hourly rate for the attorney who prepared the fee motion from $975 to 775. (Baer v. Tedder, supra, 115 Cal.App.5th at pp. 1154, 1157-1158, 1161.)

Hourly Rates: The court must start by acknowledging Baer seeks to recover fees based on hourly rates that were neither his attorneys’ customary hourly rates at the time the services were rendered (at least for the two main attorneys) nor the hourly rates used to bill Baer for the services rendered.

The hourly rates Baer seeks for the partner on the appeal and the primary associate on the appeal are based on the hourly rates that were used when the partner left a much larger international firm and joined a smaller, but still significant and well-respected firm. Specifically, Baer asks the court to use the $1,000 hourly rate that was Mr. Pugh’s customary rate when he left Holland & Knight even though that was not the customary hourly rate he charged when he performed the work on the appeal as a partner with his current firm, Newmeyer & Dillon.

Similarly, Baer asks the court to use a $775 hourly rate for associate M. Brunson because that was the hourly rate Holland & Knight customarily charged for associates with similar experience. That rate is sought even though M. Brunson never worked for Holland & Knight. Baer also seeks the Holland & Knight rate of $825 for N. Dellefave, who performed only a few hours of work on the appeal, but who was an associate with Holland & Knight when he performed the work and that was his customary rate. For all other attorneys and paralegals who worked on the appeal, fees are sought based on their

customary hourly rate as employees of Newmeyer & Dillon when they performed the work.

A review of the billing statements submitted in support of the motion also reveals the rates Baer acknowledges are the customary hourly rates for all attorneys at Newmeyer & Dillon who worked on the appeal are not the hourly rates he was charged. As explained by counsel, Baer is a longtime client of the lead partner on the case (Mr. Pugh), and based on that relationship and repeat business, Mr. Pugh has negotiated a reduced rate with Baer. When Mr. Pugh joined Newmeyer & Dillon, it was agreed Baer would continue to be billed at the reduce rate.

As the Court of Appeal explained, “‘“The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel.”’ [Citation.] ‘It is well established that an attorney who accepts a reduced rate from a client is not precluded from seeking a reasonable hourly rate pursuant to the lodestar method.’ [Citation.] ‘[A] trial court has discretion to award an hourly rate under the lodestar method that exceeds the rate that was actually incurred or paid.’ [Citations.]” (Baer v. Tedder, supra, 115 Cal.App.5th at p. 1159.)

“‘The reasonable hourly rate is that prevailing in the community for similar work.’ [Citation.] ‘“‘The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate.’”’ [Citation.] The hourly rate set by the trial court must be ‘within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work.’ [Citation.]” Baer v. Tedder, supra, 115 Cal.App.5th at p. 1159.)

Baer asks the court to use the higher, customary hourly rates from Holland & Knight because those rates were approved by the trial court and the Court of Appeal on the prior appeal. Although those rates are evidence of what is a reasonable hourly rate in this community, their prior approval does not bind this court to use those rates. Indeed, there are a host of factors that go into determining a reasonable hourly rate for a particular attorney in a particular case. When we talk about reasonable hourly rates we talk about a range of rates because attorneys have different levels of experience and different expertise, different firms have different overhead expenses and billing

methods, etc. Hence, just like this court is not bound to use the hourly rate at which Baer was charged, it also is not bound to use the hourly rates that were charged by an attorney when he was with a different firm or that firm’s rates for attorneys that never worked at that firm. Moreover, what an attorney customarily charged for work during the time period for which he seeks compensation is very compelling evidence of what he thinks the reasonable hourly rate for his service is during that period.

Based on the court’s review of the moving papers, including the declaration regarding the education and experience of the attorneys, the nature of the case, the work performed, and the court’s experience in this community, the court finds the reasonable hourly rates for all professionals seeking time for services rendered on behalf of Baer to be their actual, customary rate at the time the specific services were rendered.

For Mr. Pugh, that means rates ranging from $815 to $895 (even though he billed Baer at $595 and requested $1,000). For N. Dellefave, that means at rate of $825. For M. Brunson, that means rates ranging from $405 to $445 (even though she billed Baer at $365 and sought $775). For J. Walther, that means at rate of $430 (even though he billed Baer at $380). For M. Munro, that means a rate of $395 (and there was no information about the rate he actually billed to Baer). For paralegal A. Monroy, that means a rate of $325 (and there was no information about the rate she actually billed to Baer).

Hours Reasonably Expended: Baer seeks compensation for a total of 455.2 hour of attorney and paralegal time. That includes 330.9 hours spent on the appeal, 99.3 hours preparing this motion, and 25 hours preparing the reply for this motion and preparing for and attending the hearing.

Baer contends this very significant number of hours is appropriate for a number of reasons, including (1) the appeal was a consolidation of two appeals and therefore Baer had to prepare two briefs rather than just one, (2) Baer had to expend additional time due various briefing violations by Tedder and Kent, (3) Tedder and Kent employed a “kitchen sink” strategy in which they asserted a very large number of argues that were meritless but nonetheless had to be addressed, and (4) the appeal presented novel issues.

Although these reasons all are true to varying degrees, they nonetheless do no justify the extremely large number of hours Baer seeks. For example, Baer was required to file

both and opening brief and a combined reply and crossrespondent’s brief, but Kent’s Respondent’s brief made essential the identical arguments as Tedder’s Cross- Appellant’s brief. Moreover, many of those arguments were fairly quickly resolved.

The court has reviewed the appellate briefs and the Court of Appeal opinion, all the papers filed in support of this motion (including the billing statements), and the file in this case. Based on its experience and the governing law the court finds the number of hours to be excessive.

For example, Baer seeks 99.3 hours just for preparing the moving papers on this motion, and then an additional 25 hours for preparing the reply and attending the hearing. On the prior appeal, Baer sought 31.9 hours for the fee motion. The Court of Appeal found that excessive and reduced it to 25 hours.

The motion for attorney fees on the first appeal is similar to this motion, but now Baer has the benefit of the Court of Appeal opinion resolving his entitlement to fees. On the current motion, Baer has prepared a more extensive motion and supporting declaration and provided a copy of nearly all the documents from the prior appeal. That, however, does not render the 124.3 hours being sought reasonable. The court finds a more reasonable number of hours to be approximately 40 hours, which includes approximately 20 hours for Branson, 10 hours Munro, 5 hours for Pugh, and 5 hours for Monroy.

For the appeal itself, Baer seeks a total of 330.9 hours which includes 130.4 hours to research and draft the opening brief and 139.7 hour to review Tedder and Kent’s combined brief, research the issues it presented, and draft Baer’s combined reply and cross-respondent’s brief. The prior appeal in total consumed 116.9 hours, which admittedly involved only a single brief and issues to be confronted as a respondent. Nonetheless, the contrast is stark, especially given that Tedder and Kent’s brief in the first appeal suffered from some of the same briefing violations as their briefs on the second appeal.

The court finds approximately 100 hours to research and draft the opening brief, and approximately 100 hours to review Tedder and Kent’s combined brief, research the issues it presented, and draft Baer’s combined reply and crossrespondent’s brief to be a more reasonable number of hours. The court finds all other time spent on the appeal to be reasonable.

The foregoing results in a reduction of approximately 84 hours from the time sought in 2026 relating to this motion, approximately 30 hours from the time sought in 2024 for the opening brief, and approximately 40 hours from the time sought in 2025 for the combined reply and cross-respondent’s brief.

The following summarizes the hours the court approves and finds reasonable for each professional during each of the relevant years and the total hours and fees.

Attorney/ Hourly Hours Hours Fees Year Rate Billed Awarded Awarded B.P./2024 $815 54.1 40 $32,600 B.P./2025 $855 56.6 40 $34,200 B.P./2026 $895 17.8 8 $7,160 N.D./2024 $825 6.8 6.8 $5,610 M.B./2024 $405 94.9 80 $32,400 M.B./2025 $425 114.4 90 $38,250 M.B./2026 $445 70.2 20 $8,900 J.W./2024 $430 1.5 0 $0 M.M./2026 $395 30.6 10 $3,095 A.M./2026 $325 8.5 5 $1,625 TOTAL 455.4 299.8 $163,840

In the opposition, Tedder and Kent assert a variety of challenges to the amount of attorney fees being sought. Some of them are simply inaccurate, such as the assertion Baer failed to present time records. Others are duplicative of arguments Tedder and Kent made on the prior appeal and that the Court of Appeal already rejected. Regardless, other than the assertion some of the fees and hourly rates are excessive, the court is not persuaded by any of the arguments asserted in the opposition, including the contention the motion should be denied because Baer failed to allocate the time spent between issues relating to Tedder and issues relating to Kent.

The court finds the issues were sufficiently intertwined such as to make allocation impracticable. Indeed, even a review of the index to Tedder and Kent’s combined respondent’s and crossappellant’s brief reveals they made many of the same arguments.

Conclusion: Based on the foregoing, the motion is GRANTED. Baer is awarded $163,840 in attorney fees jointly and severally against Tedder and Kent in connection with the appeal that resulted in Baer v. Tedder, supra, and this motion

Baer’s counsel is ordered to give notice of this ruling.