Opinion
McGUINESS, P. J. The proceeding giving rise to these consolidated appeals began simply enough with a habeas corpus petition filed by a prisoner who claimed his parole suitability hearing had not been conducted within the time specified in the Penal Code.1 From that modest beginning, the proceeding transmogrified into something unprecedented under California law—a habeas corpus class action on behalf of parole-eligible life prisoners in which the trial court has assumed a role as overseer of the Board of Parole Hearings (Board) on a range of matters far afield of the simple complaint that motivated the original petitioner to seek relief.
[1529]On appeal, the Board claims the trial court erred by improperly limiting the Board’s inherent discretion and requiring the Board to state “a significant change in circumstances” justifying a decision to deny parole for more than one year following a prior one-year parole denial. The Board further contends the trial court erred by requiring it to provide inmates with transcripts of their parole hearings within 30 days of the hearing date or face sanctions of $10 per day for each delayed transcript. Finally, the Board claims the trial court abused its discretion when it chose to multiply the fees awarded to class counsel by a factor of 1.5.
We affirm the order awarding attorney fees but reverse the trial court’s orders as they relate to multiyear denials and hearing transcripts.
Factual and Procedural Background
On May 26, 2004, Jerry Rutherford filed an in propria persona habeas corpus petition in the Marin County Superior Court. Rutherford, a prisoner at San Quentin State Prison who was serving a seven-year-to-life sentence, complained that he had been given a one-year denial of parole on February 25, 2003, but that the Board had failed to conduct his subsequent parole consideration hearing within one year of that date, in violation of his due process rights and section 3041.5, subdivision (b)(2). The trial court issued an order to show cause, directed the Board to file a return, and appointed the Prison Law Office to represent Rutherford in connection with his petition.2
The Attorney General filed a return on behalf of the Board. Among other things, the Attorney General contended the action should be dismissed as moot because, at the time the return was filed, Rutherford’s next parole consideration hearing had already been scheduled.
Rutherford filed a reply to the Board’s return along with a notice of motion and motion for class certification. Because his parole hearing had yet to take place, Rutherford denied the issue presented in the petition was moot. He further argued that, even if his hearing took place as scheduled, the court should still address the issue of untimely parole hearings because it was [1530]capable of repetition while evading judicial review. With respect to the class certification issue, Rutherford contended the court was required to issue “broad prospective” relief on behalf of him and all similarly situated life prisoners entitled to a timely parole consideration hearing. He argued that the “current piecemeal approach to resolving disputes over hearing timeliness” was insufficient and a waste of judicial resources.
The Board opposed the class certification motion, arguing among other things that habeas corpus proceedings are not appropriate for class treatment, judicial intervention was unwarranted in light of legislative action intended to reduce the parole hearing backlog, and the putative class did not meet the criteria for certification. In its opposition, the Board cited an order denying relief in another, similar habeas corpus petition that came before a different trial judge on the Marin County Superior Court. That trial judge offered the following observation, which might well apply to this action: “The administrative problems and delays and the statutory scheme which makes the operations of the [Board] clearly a function of the executive branch of government, have created a morass uniquely inappropriate for judicial resolution.”
The trial court granted Rutherford’s motion for class certification on November 29, 2004. The court defined the class as all prisoners serving indeterminate terms of life with the possibility of parole who have approached or exceeded their minimum eligible parole dates without receiving their parole hearings within the time required by sections 3041 and 3041.5. In this opinion, we shall refer to the certified prisoner class collectively as petitioners.
Following certification of the class, the Board stipulated that it was not providing timely parole consideration hearings as required by the Penal Code. After the Board attempted but largely failed to reduce the hearing backlog, the court granted petitioners’ application for a writ of habeas corpus by order dated February 15, 2006. The trial court found that the hearing backlog was “increasing at an alarming rate” and cited testimony attributing the delays to antiquated procedures and inadequate staffing. The court concluded that “the remedy of individual judges granting individual applications for writs of habeas corpus cannot adequately address this problem.” The court ordered the Board to “take immediate measures to comply with the statutory time limits for holding parole hearings,” appointed the Prison Law Office as class counsel for petitioners, directed class counsel to prepare and give notice to the class, and expressed its intention to adopt a remedial plan that would be “as minimally intrusive as possible” in light of the substantial deference given to the Department. The court’s order also directed class counsel to file a noticed motion for reasonable fees.
[1531]On March 22, 2006, the parties filed a joint statement of disputed issues, stipulated procedures, and a remedial plan. The court approved the stipulated procedures the following day. The stipulated procedures provide in relevant part that the Board shall file a progress report on compliance with the remedial plan at least once every 90 days. Under the stipulated procedures, petitioners are authorized to move “for any relief permitted by law or equity” to the extent they are not satisfied with the Board’s response to any issue raised about its compliance with the remedial plan. The procedures specify that the court retains jurisdiction to enforce the terms of its orders and further indicate the matter will not be dismissed until the hearing backlog had been reduced to not more than 5 percent of monthly hearings and remained at or below that level for twelve consecutive months.
The proposed remedial plan required the Department to eliminate the backlog of parole hearings within 18 months of the court’s approval of the plan and to develop and implement a statewide, networked scheduling and tracking system for parole suitability hearings.
One of the disputed issues identified by the parties concerned multiyear denials of parole following a previous one-year denial of parole.3 Petitioners took the position that the Board should not deny further parole consideration for two, three, four, or five years in cases in which inmates had previously received a one-year parole denial, absent a significant change in circumstances. The Board’s position was that individual parole decisions should be left to the discretion of the hearing panel, which should not be bound by decisions of prior panels. The parties submitted further briefing on the issue of multiyear denials following a one-year denial.
Petitioners argued that the Board “seems to be using” multiyear denials to reduce the hearing backlog. As support for its position, petitioners claimed that some prisoners who had been denied parole for one year in the past were receiving multiyear denials.4 In opposition, the Board pointed out there was no evidence that any of its commissioners had ever given a multiyear denial in order to reduce the hearing backlog. Further, the Board argued the issue of multiyear denials was not related to the timeliness of parole consideration hearings and therefore was not properly before the court. The Board also contended that requiring it to state a significant change in circumstances [1532]justifying a multiyear denial following a one-year denial would improperly restrict the Board’s discretion.
On April 14, 2006, class counsel filed a motion for an award of attorney fees. Class counsel sought $58,460 as reasonable attorney fees, an amount that class counsel argued should be multiplied by a factor of at least 1.5 in light of factors described in Serrano v. Priest (1977) 20 Cal.3d 25, 49 [141 Cal.Rptr. 315, 569 P.2d 1303], that would justify a fee enhancement. Although the Board opposed the fee motion, it did not contest class counsel’s contention that $58,460 constituted reasonable fees for the services provided. Instead, the Board contended that no multiplier was justified and that any fee award should be limited to $58,460.
By order dated May 5, 2006, the trial court ruled on a number of disputed issues, including the handling of multiyear denials and class counsel’s request for attorney fees. On the issue of multiyear denials, the court ordered the Board “not to deny further parole consideration for more than one year in the case of prisoners who have formerly been denied for one year, in the absence of a significant change in circumstances, which must be stated on the record.” At the hearing on the motion, the trial court had observed that petitioners offered “some anecdotal evidence” that prisoners were being given multiyear denials with no justification offered. With regard to the attorney fee motion, the court noted that the Board did not dispute class counsel’s request for fees in the amount of $58,460. The court found that class counsel was entitled to an enhanced fee based on the factors identified in class counsel’s moving papers as well as the factors identified in Serrano v. Priest, supra, 20 Cal.3d 25. The court found that a multiplier of 1.5 was appropriate and therefore arrived at an enhanced fee amount of $83,174.49.5 Adding in costs and attorney fees associated with the fee motion itself (which were not enhanced by the 1.5 multiplier), the attorney fee and cost award totaled $90,203.72, which the court ordered the Board to pay to the Prison Law Office forthwith.
The court’s May 5, 2006, order also appointed Inez Tito Lugo as the class representative in place of original petitioner Jerry Rutherford, who had died since the commencement of the litigation.
On June 5, 2006, the Board filed a timely notice of appeal (case No. A114111) from the court’s May 5, 2006, order. At the request of the Board, we granted a writ of supersedeas and stayed enforcement of the following portions of the trial court’s May 5, 2006, order pending consideration of the appeal: (1) the paragraph directing the Board “not to deny further [1533]parole consideration for more than one year in the case of prisoners who have formerly been denied for one year, in the absence of a significant change in circumstances, which must be stated on the record”; and (2) the application of the 1.5 multiplier in the computation of the attorney fee award.
Throughout 2006, the parties continued to submit reports to the court concerning the progress that had been made toward remediating the parole hearing backlog. In a status report filed November 9, 2006, petitioners raised for the first time in the litigation the complaint that the Board was not providing parole hearing transcripts to inmates in a timely manner.6 Petitioners argued that some prisoners were waiting months for their transcripts in spite of section 3042, subdivision (b), which they claimed requires the Board to provide a hearing transcript within 30 days of the hearing. Petitioners complained that the delay in receiving transcripts “presents a barrier to prisoners’ access to the courts because they must attach a copy of the hearing transcript to any petition for writ of habeas corpus they may file to challenge any aspect of the hearing decision.” Petitioners did not suggest the purported transcript backlog had any bearing on the timely provision of parole consideration hearings.
At a status conference on November 16, 2006, the Board’s attorney told the court that efforts were being made to reduce the transcript backlog but also argued that the timely provision of hearing transcripts was beyond the scope of this litigation. The court initially reacted to the issue as follows: “Well, it’s—it’s kind of the same problem we have with the overdue parole hearings. We have laws on the books that say this is how it’s supposed to be, and the Respondents, for all kinds of reasons, aren’t doing it.” The court stated that under section 3042, subdivision (b), an inmate “has a right to a transcript within 30 days.” The court held that the issue of delayed hearing transcripts was within the purview of the court’s jurisdiction because a hearing is not complete unless the transcript is furnished to the inmate. The court explained: “It’s sort of a Zen concept: If there’s no transcript, we don’t know whether there was a hearing, and if so, what happened, and whether it was done properly.”
At subsequent status hearings, the Board provided estimates regarding when the transcript backlog would be eliminated. Dissatisfied with the progress toward eliminating the backlog, petitioners argued in a brief filed
[1534]April 27, 2007, that the Board should be ordered to reduce the transcript backlog within 30 days. The Board responded by stating it was taking appropriate steps to eliminate the transcript backlog but noted that, in any event, there is no statutory requirement that transcripts be provided to inmates within 30 days of the hearing date, citing section 3042, subdivision (b) and a decision of the First District Court of Appeal in In re Bode (1999) 74 Cal.App.4th 1002 [88 Cal.Rptr.2d 536] (Bode). In Bode, Division Five of this court held that there is no 30-day statutory deadline for providing a life prisoner with a transcript of a parole hearing. (Bode, supra, 74 Cal.App.4th at p. 1003.) The appellate court in Bode held the 30-day requirement in section 3042, subdivision (b) was designed to protect the public before the release of a prisoner by giving members of the public access to parole hearing transcripts. (Bode, supra, 74 Cal.App.4th at p. 1003.)
The trial court below considered the transcript backlog issue at a hearing held on May 10, 2007. The court asked if the Board wished to address whether prisoners “aren’t really entitled to transcripts within 30 days.” The Board’s attorney responded by arguing that Bode had already decided the issue and that the only requirement under that case was that inmates be provided with a transcript “within a reasonable amount of time to allow them to challenge any adverse ruling in their parole consideration hearing.”
At the conclusion of argument on the issue, the court ordered the transcript backlog eliminated by June 15, 2007, and further ordered that a sanction of $10 per day per delayed transcript would be imposed following that date. The court further expounded upon its order with respect to prisoners, as follows: “As far as when prisoners should be getting transcripts, I’ve read the Bode case, I have great respect for the Justices who authored it, however, it’s my reading of [section] 3042[, subdivision] (b) that Respondents are to prepare transcripts within 30 days of the hearing. [][] ... I believe prisoners are members of the public. I don’t think members of the public have a greater or lesser right to those transcripts than prisoners. So the arguments that prisoners are not legally entitled to those within 30 days is an argument I disagree with. It’s my reading of the statutes that they are entitled.”
No formal signed order was entered following the hearing held on May 10, 2007. The minute order from the hearing reads, in pertinent part: “The court states transcripts are to issue 30 days after hearing. Prisoners are members of the public. Commencing 6/1/07 [szc] $10 per day per late transcript is ordered.”
On May 30, 2007, the Board filed a timely notice of appeal (case No. A118706) from the trial court’s May 10, 2007, minute order. At the Board’s request, we granted a writ of supersedeas and stayed the following [1535]provisions of the trial court’s order pending consideration of the appeal: (1) the requirement that the Board eliminate the transcript backlog by June 15, 2007; (2) the imposition of a $10 per day per transcript penalty for transcripts delayed after June 15, 2007; and (3) the requirement that the Board provide hearing transcripts to inmates within 30 days of the hearing date.
On the court’s own motion, we consolidated the appeal in case No. A114111 with the appeal in case No. A118706 for the purposes of argument and decision.
Discussion
I. Multiyear denials of parole
The Board contends the trial court erred by ordering it not to deny further parole consideration for more than one year in the case of prisoners who had been formerly denied for one year, in the absence of a significant change in circumstances. The Board argues the court’s order unlawfully limits the Board’s discretion. We agree.
The challenged order is in the nature of an injunction. Ordinarily, when we review a trial court order granting injunctive relief, we apply the deferential abuse of discretion standard. (See ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016 [24 Cal.Rptr.3d 720].) A decision will be reversed for an abuse of discretion only when it exceeds the bounds of reason or disregards uncontradicted evidence. (Ibid.) The burden rests with the party challenging an injunction to make a clear showing of abuse. (Ibid.) However, when the issue raised on appeal concerning an injunction is purely legal, such as the proper interpretation and application of a statute or constitutional provision, our review is de novo. (See Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433 [9 Cal.Rptr.3d 257] [constitutional issues always reviewed de novo]; Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294, 1301 [4 Cal.Rptr.3d 629] [when injunction is based on trial court’s statutory interpretation in light of undisputed facts, review is de novo].)
Here, the issues raised by the Board are purely legal in that it claims the court’s order contravenes section 3041.5 and violates separation of powers principles found in the California Constitution. These purely legal issues do not require us to determine whether the court properly evaluated the evidence [1536]in determining the need for relief.7 Instead, the only issue is whether the court’s form of relief violates state law. De novo review is therefore appropriate.8
Parole consideration procedures are governed by section 3040 et seq. and apply to all inmates not serving a determinate sentence. (In re Jackson, supra, 39 Cal.3d at p. 468.) If the Board concludes following a hearing that a life prisoner who is eligible for parole is not suitable for release on parole, the next hearing to consider parole suitability is normally scheduled for the following year. (Ibid.; § 3041.5, subd. (b)(2).) We have used the term “one-year denial” to refer to such a circumstance.
Section 3041.5, subdivision (b)(2) affords the Board discretion under certain circumstances to issue “multiyear denials,” in which case the next scheduled parole hearing may be scheduled no later than the following: “(A) Two years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year and states the bases for the finding. [][] (B) Up to five years after any hearing at which parole is denied if the prisoner has been convicted of murder, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing. If the board defers a hearing five years, the prisoner’s central file shall be reviewed by a deputy commissioner within three years at which time the deputy commissioner may direct that a [1537]hearing be held within one year. The prisoner shall be notified in writing of the deputy commissioner’s decision. The board shall adopt procedures that relate to the criteria for setting the hearing between two and five years.”
Thus, with respect to any life prisoner who is eligible for parole, the Board may deny parole for up to two years if certain conditions are met. (§ 3041.5, subd. (b)(2)(A).) With respect to a parole-eligible life prisoner convicted of murder, the Board may deny parole for up to five years if certain conditions are met. (Id., subd. (b)(2)(B).) In either case, the only statutory limitations on the Board’s discretion are (1) that it must make a finding it is not reasonable to expect that parole would be granted in the years leading up to the next parole hearing, and (2) the Board must state the grounds for its decision. The statute contains no requirement that the Board must find a significant change in circumstances justifying a multiyear denial following a one-year denial.
Our Supreme Court has held that the Board must state its reasons for issuing a multiyear denial in a decision separate from the one denying parole. (In re Jackson, supra, 39 Cal.3d at p. 478.) The Board’s decision to defer annual parole consideration hearings is guided by the same criteria used to determine parole suitability. (Cal. Code Regs., tit. 15, § 2270, subd. (d); see id., § 2281; In re Burns (2006) 136 Cal.App.4th 1318, 1326 [40 Cal.Rptr.3d 1].) The reasons for postponing the next scheduled parole hearing need not be completely different from the reasons for denying parole suitability. (In re Burns, supra, 136 Cal.App.4th at p. 1326.) Rather, the only requirement is an identification of the reasons that justify postponement. (Ibid.; see also In re Jackson, supra, 39 Cal.3d at p. 479.)
“By its nature, the determination whether a prisoner should be released on parole is generally regarded as an executive branch decision. [Citations.] The decision, and the discretion implicit in it, are expressly committed to the executive branch. [Citations.]” (In re Morrall (2002) 102 Cal.App.4th 280, 287 [125 Cal.Rptr.2d 391]; see also Cal. Const., art. V, § 8; §§ 3040 et seq., 5075 et seq.)
The Board’s discretion in parole-related matters has been described as “great” and “almost unlimited.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 [128 Cal.Rptr.2d 104, 59 P.3d 174].) Nevertheless, the requirement of procedural due process places some limitations upon the broad discretionary powers of the Board. (Ibid.) The judicial branch is authorized to review the factual basis of a decision of the Board, but in conducting such a review, “the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole . . . .” (Id. at p. 658, italics added.) The “some evidence” standard of review governs consideration of a Board decision to postpone the next scheduled parole hearing by issuing a multiyear denial. (See In re Burns, supra, 136 Cal.App.4th at pp. 1327-1329.)
[1538]The separation of powers principle is embodied in the California Constitution, which provides as follows in article III, section 3: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” “ ‘The separation of powers doctrine limits the authority of one of the three branches of government to arrogate to itself the core functions of another branch. [Citations.]’ [Citation.]” (In re Rosenkrantz, supra, 29 Cal.4th at p. 662.) Although the doctrine is not intended to prohibit one branch from taking action that might affect those of another branch, the doctrine is violated when the actions of one branch “defeat or materially impair the inherent functions of another branch. [Citation.]” (Ibid.) Intrusions by the judiciary into the executive branch’s realm of parole matters may violate the separation of powers. (See Hornung v. Superior Court (2000) 81 Cal.App.4th 1095, 1099 [97 Cal.Rptr.2d 382] [court order allowing inmate to question commissioners regarding their parole-related decision process violated separation of powers].)
Here, the court’s order materially impairs the inherent discretion of the Board. Under section 3041.5, it is completely within the Board’s discretion to issue a multiyear parole denial following a one-year denial even if no significant change in circumstances has occurred, so long as at least some evidence supports the decision. The court’s order deprives the Board of that discretion.
There are a variety of situations in which the issuance of a multiyear denial following a one-year denial might be appropriate despite the lack of any significant change in circumstances. For example, at an earlier hearing at which the Board issued a one-year denial, there might have been evidence to support a multiyear denial but the Board exercised its discretion not to issue a multiyear denial. Nothing in the applicable statute requires the Board to issue a multiyear denial if justified by the evidence. (§ 3041.5, subd. (b)(2).) Stated differently, a one-year denial does not necessarily reflect an affirmative finding by the Board that it is reasonable to believe parole will be granted in one year.
Another situation in which it might be appropriate to issue a multiyear denial following a one-year denial is a case in which a panel of the Board concludes that the previous panel was mistaken in issuing only a one-year denial. Different decision makers may exercise their discretion in different ways, but that does not mean their decisions are necessarily arbitrary or [1539]lacking in evidentiary support. A panel’s discretion cannot be tethered to the discretionary decision of a prior panel.9
A fundamental infirmity in the court’s order is that it does more than just require that the Board state some evidence supporting a postponement of an inmate’s next scheduled parole hearing. In an individual case, when a petitioner who previously received a one-year denial challenges a multiyear denial and claims his due process rights were violated as a result of the postponement of his next scheduled parole date, the court’s review is limited to determining whether some evidence supports the Board’s findings.10 If the court finds some evidence to support the postponement of parole but nonetheless requires the Board to state a “significant change in circumstances” justifying a multiyear denial following a one-year denial, the court’s order would be improper, violate the standard of review, and intrude upon the Board’s discretion. The result is no different here simply because the trial court certified a class of parole-eligible life prisoners. “If a specific form of relief is foreclosed to claimants as individuals, it remains unavailable to them even if they congregate into a class.” (Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1018 [36 Cal.Rptr.3d 592].)
Petitioners argue that the trial court’s decision is justified in part because the Board has failed to adopt procedures relating to the criteria for setting a subsequent hearing between two and five years, as it was purportedly required to do by legislation enacted in 1994.[11] (§ 3041.5, subd. (b)(2)(B), enacted by Stats. 1994, ch. 560, § 1, pp. 2833-2834.) However, the lack of detailed criteria distinguishing a two-year denial from a five-year denial does not support the court’s material impairment of the Board’s inherent discretion. If the concern were that the Board had failed to enact detailed regulations or procedures governing multiyear denials, the appropriate action would be to [1540]compel the Board to do so. (See Alvarado v. Selma Convalescent Hospital (2007) 153 Cal.App.4th 1292, 1306, fn. 5 [64 Cal.Rptr.3d 250].)
We conclude that the trial court’s order as it relates to a multiyear denial following a one-year denial violates the separation of powers and intrudes upon the inherent discretion afforded to the Board to decide parole matters.
II. Hearing transcript backlog
The Board challenges the trial court’s May 10, 2007, order relating to the transcript backlog, contending the order is contrary to case law establishing that section 3042 does not require the Board to provide parole hearing transcripts to prisoners within 30 days of the hearing date. The Board further contends the order is improper because it addresses an issue not properly before the court in this habeas corpus proceeding.
Initially, we reject petitioners’ contention the Board waived its objections to this order by failing to appeal from the November 2006 hearing at which the court declared the timely provision of transcripts to be within the purview of the case. An order that is merely preliminary to a later judgment or final order is not appealable. (See In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589 [33 Cal.Rptr.2d 559] [court’s order finding it had authority to take certain actions not appealable].) The Board properly preserved its objection at the November 2006 hearing and appealed from a subsequent order that affected the substantive rights of the parties.
In Bode, supra, 74 Cal.App.4th 1002, our colleagues in Division Five of this court held that section 3042, subdivision (b) requires that members of the public, not prisoners, must be provided a transcript of a parole hearing within 30 days of the hearing.12 (Bode, supra, 74 Cal.App.4th at p. 1003.) There is no 30-day deadline for providing a life prisoner with a parole hearing transcript. (Ibid.) The Board argues that the trial court’s May 2007 order misinterprets section 3042, subdivision (b) and is contrary to the holding in Bode.
At a minimum, the challenged order is ambiguous. The order could be read simply to direct compliance with the statutory mandate of section 3042, subdivision (b), which requires the Board to make parole hearing transcripts [1541]“available to the public no later than 30 days from the date of the hearing.” Under this reading of the order, the trial court complied with Bode at the same time it expressed disagreement with the holding of the case. On the other hand, the court’s order could be read to compel a result directly at odds with Bode by directing delivery of transcripts to affected inmates within the 30-day period. Regardless of whether the trial court questions the wisdom of Bode, it is bound to follow the decision of the appellate court under the principle of stare decisis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)
We need not decide whether the trial court’s order violates Bode, however, because there is an even more compelling reason to reverse the order addressing the transcript hearing backlog. Simply put, the court’s order addressed an issue not properly before it in this habeas corpus proceeding, which is limited to the timely provision of parole hearings.
In a habeas corpus proceeding, the parties’ pleadings define the issues. (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1235 [31 Cal.Rptr.3d 70] (Board of Prison Terms).) The “petition serves primarily to launch the judicial inquiry into the legality of the restraints on the petitioner’s personal liberty . . . .” (People v. Romero (1994) 8 Cal.4th 728, 738 [35 Cal.Rptr.2d 270, 883 P.2d 388].) “The return, which must allege facts establishing the legality of the petitioner’s custody, ‘becomes the principal pleading’ [citation] and is ‘analogous to the complaint in a civil proceeding’ [citations].” (Id. at pp. 738-739, fn. omitted.) Upon the filing of the written return, the petitioner may file a response, commonly known as the traverse, in which the petitioner “ ‘may deny or controvert any of the material facts or matters set forth in the return, or except to the sufficiency thereof, or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge.’ [Citation.]” (Id. at p. 739.) “[I]t is through the return and the traverse that the issues are joined in a habeas corpus proceeding. [Citations.]” (Ibid.) “[Issuance of a writ of habeas corpus or an order to show cause is an intermediate but nonetheless vital step in the process of determining whether the court should grant the affirmative relief that the petitioner has requested. The function of the writ or order is to ‘institute a proceeding in which issues of fact are to be framed and decided.’ [Citation.] The issuance of either the writ of habeas corpus or the order to show cause creates a ‘cause[]’ . . . [citations]. Thus, the writ or order is the means by which issues are joined (through the return and traverse) and the need for an evidentiary hearing determined.” (Id. at p. 740.)
“Under this process, the issues to be addressed may not extend beyond the claims alleged in the habeas corpus petition. Thus, respondent may not raise additional issues in its return. [Citation.] [][] Similarly, a habeas [1542]corpus petitioner may not raise additional issues in the traverse.” (Board of Prison Terms, supra, 130 Cal.App.4th at p. 1235.) “To bring additional claims before the court, petitioner must obtain leave to file a supplemental petition for writ of habeas corpus. [Citation.]” (Ibid.) “If the superior court grants leave to amend or supplement the petition and the petitioner files a supplemental petition that adds new claims not raised in the original habeas corpus petition, the trial court then may determine which of the claims states a prima facie case for habeas corpus relief and issue an appropriate order to show cause. The respondent must respond to the order to show cause by filing a return that addresses the prima facie claims, to which the petitioner may reply in a traverse. The issues are then properly joined in accordance with the well-established rules governing habeas corpus procedure.” (Id. at p. 1240.)
Therefore, a court may not issue an order to show cause that adds new claims not raised in or supported by allegations in an original or supplemental habeas corpus petition. (See Board of Prison Terms, supra, 130 Cal.App.4th at p. 1239.) Even when claims are properly raised by way of a habeas corpus petition or a supplemental petition filed with the court’s permission, the court typically may not grant relief unless it first issues an order to show cause or a writ of habeas corpus.13 (In re Olson (2007) 149 Cal.App.4th 790, 802 [57 Cal.Rptr.3d 284].) In the absence of an order to show cause or a writ of habeas corpus, “there are no facts, issues or cause” before the court, and any order granting relief is a nullity unless the petitioner’s custodian has stipulated to the truth of the factual allegations and to the requested relief. (Ibid.) Furthermore, when an order to show cause issues, the claims are limited to those alleged in the petition that form the basis of the court’s order to show cause. (In re Lawley (2008) 42 Cal.4th 1231, 1248 [74 Cal.Rptr.3d 92, 179 P.3d 891].) The proceeding “ ‘is limited to the claims [that] the court initially determined stated a prima facie case for relief.’ [Citation.]” (Ibid., fn. omitted.)
As framed by the original habeas corpus petition, the sole claim at issue in this case is that the Board has failed to provide timely parole consideration hearings to inmates as required under the Penal Code. None of the initial pleadings discuss section 3042 or even allude to a concern about the timely provision of hearing transcripts. Not surprisingly, the issue is not raised in the order to show cause, the order granting the habeas corpus petition, the stipulated procedures, or the remedial plan. Furthermore, no motion has been made to supplement or amend the original habeas corpus petition to include claims related to parole hearing transcripts. The issue first came up in a status [1543]hearing nine months after the court issued its order granting the habeas corpus petition. Therefore, the issue of the transcript backlog was never properly before the court. Even if the issue had been raised in a supplemental habeas corpus petition, the trial court never issued an order to show cause or writ of habeas corpus addressed to the issue of the transcript backlog. Without such an order or writ directed to the issue of the transcript backlog, the court could not properly grant relief addressed to the issue.
We disagree with the trial court’s conclusion that hearing transcripts are within the purview of the case. A hearing transcript is not required in order to know whether a timely parole consideration hearing has taken place. Petitioners initially raised the issue not because it had any relation to whether parole hearings were being timely conducted, but instead because the alleged delay in receiving a transcript affected a prisoner’s right to challenge the parole decision. Whether hearing transcripts are timely prepared is an entirely different issue from whether hearings are being conducted in a timely fashion, and presents a different set of issues and complexities. As petitioners themselves stated in a pleading filed in the trial court on May 22, 2007, this case “address[es] whether Penal Code section 3041, subdivision (a), and 3041.5, subdivision (b)(2), imposed mandatory timelines on the board for holding parole consideration hearings.” Petitioners acknowledged the “remedial plan [in this case] only concerns prospective relief with the aim of ensuring timely hearings in the future.” (Italics added.)
Petitioners contend this “unique” habeas corpus proceeding permits the parties to raise new issues after the initial round of pleadings. As support for this contention, petitioners cite the parties’ stipulation giving the court ongoing jurisdiction to enforce its orders. They also attempt to distinguish cases addressing “traditional” habeas corpus procedure from this case, described as “perhaps the only class action habeas proceeding in recent California history,” which according to petitioners “involves issues that continue to develop as the remedial process unfolds.”
Contrary to petitioners’ contention, the parties’ stipulated procedures do not afford the court authority to issue orders on any matter the parties may raise, no matter how tenuous its connection to the timely provision of parole hearings. The Board stipulated that petitioners could seek further orders from the trial court if the Board was not making steady, significant progress in reducing the hearing backlog, or not complying with the stipulated procedures or remedial plan. The stipulation did not permit the court to address issues unrelated to the hearing backlog.
We are unaware of any support for petitioners’ contention that the class action nature of this habeas corpus proceeding somehow permits the trial [1544]court to address unrelated developing issues as the remedial process unfolds. To the contrary, there is no reason to believe that “traditional” habeas corpus procedures are inapplicable to a habeas corpus class action.14
The court’s May 2007 order is especially problematic because it was entered in the context of a class action. There is no indication the named habeas corpus class representative—currently Inez Tito Lugo—has suffered any deprivation of his right to timely receive a hearing transcript. There is not necessarily any correlation between prisoners who are members of the class and prisoners for whom transcripts have not been timely prepared. The transcript backlog presumably affects prisoners without regard to whether their hearings have been timely held. The court’s order addressing the transcript backlog is not limited to class members—those life prisoners whose hearings have been delayed—but purports to address the backlog with respect to all inmates in state prison who receive a parole consideration hearing, irrespective of their membership in the class. The order assessing a sanction of $10 for every day of delay in the preparation of every parole hearing transcript did not create a subclass of petitioners to whom the sanction applies and thus would presumably apply to an untold number of prisoners throughout California’s vast correctional system. Not only does the order raise new issues concerning its implementation that were not carefully scrutinized, but the Board was never given notice that there was a potential for any such consequence in this litigation. We agree with the Board that the issue was not raised in these proceedings in a manner that permitted the court to entertain an application for such broad relief. Hence, the order of May 10, 2007, must be vacated to the extent it relates to the preparation of parole hearing transcripts.
III. Attorney fees multiplier
The Board contends the trial court erred by applying a 1.5 multiplier in awarding attorney fees to class counsel for petitioners. We review an order awarding attorney fees for abuse of discretion. (Serrano v. Priest, supra, 20 Cal.3d at p. 49; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096 [95 Cal.Rptr.2d 198, 997 P.2d 511].) “The trial court is the best judge of the value of professional services rendered in its court, and while its judgment is subject to our review, we will not disturb that determination unless we are convinced that it is clearly wrong. [Citations.] 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 [1545]prejudice influenced the determination. [Citation.]” (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134 [94 Cal.Rptr.2d 448].) Applying this deferential standard of review, we conclude the trial court did not abuse its discretion.
“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.’ [Citation.] The reasonable hourly rate is that prevailing in the community for similar work. [Citations.] 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. [Citation.]” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.)
As explained in Serrano v. Priest, once the lodestar has been calculated, it may be adjusted upward or downward based on factors including “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing law suits of the character here involved; (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed; and (7) the fact that in the court’s view the two law firms involved had approximately an equal share in the success of the litigation.” (Serrano v. Priest, supra, 20 Cal.3d at p. 49, fn. omitted.) This set of factors is illustrative only and does not constitute an exhaustive list of all relevant considerations that may justify an exercise of judicial discretion to increase or decrease the lodestar amount. (Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 834 [112 Cal.Rptr.2d 284].)
The purpose of adjusting the lodestar is to “fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [104 Cal.Rptr.2d 377, 17 P.3d 735].)
The Board does not dispute the calculation of the lodestar amount but instead claims the trial court abused its discretion by using a multiplier of 1.5, [1546]effectively increasing the lodestar amount by 50 percent. In support of its order applying a 1.5 multiplier to the lodestar amount, the court cited the following: “the results obtained by counsel; that members of the Petitioner class have had steps taken already to insure that their overdue hearings are promptly held; the defendants have been required, because of this litigation, to meet their public duties of enforcing and complying with the requirements of the Penal Code; it’s highly unlikely that this case would have been certified as a class action had it not been for Petitioner’s counsel’s involvement in and commitment to the matter; that the monies awarded will not inure to the individual benefit of Petitioner’s counsel but will be used for nonprofit purposes.” In its written order, the court stated the attorney fee award is justified in part because petitioners “vindicated an important statutory right affecting the public interest.”
We agree with the Board that many of the factors cited in Serrano v. Priest weigh against enhancing the lodestar amount in this case. The litigation did not involve a contingent risk. The Prison Law Office was, in fact, paid by Marin County for its work on the case, albeit at a modest hourly rate. In addition, the enhanced fee award will ultimately fall upon the shoulders of California taxpayers.
Nevertheless, the trial court did identify a number of factors that properly support an upward adjustment to the lodestar. The court found that the fees will be awarded for the benefit of a nonprofit organization and not the individual attorneys employed by that organization. In addition, the court recognized, in effect, that the statewide results achieved by pursuing the matter as a class action resulted from class counsel’s legal skills and persistence. (See Ketchum v. Moses, supra, 24 Cal.4th at p. 1139 [court can award multiplier for an exceptional quality of representation]; see also Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 582 [21 Cal.Rptr.3d 331, 101 P.3d 140] [enhancement to multiplier justified when exceptional effort produces exceptional benefit].)
Mindful that the trial judge is the best arbiter of the value of professional service rendered in the trial court, we cannot say the court was clearly wrong when it increased the lodestar amount by 50 percent. Furthermore, a multiplier of 1.5 is not large by comparison to those typically seen in reported cases. (See Northwest Energetic Services, LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 882 [71 Cal.Rptr.3d 642] [reversing multiplier of 16]; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255 [110 Cal.Rptr.2d 145] [multipliers can range from two to four or even higher]; City of Oakland v. Oakland Raiders (1988) 203 Cal.App.3d 78, 85-86 [249 Cal.Rptr. 606] [affirming multiplier of 2.34].)
[1547]Disposition
The trial court’s order of May 5, 2006, is affirmed with respect to the attorney fee award but is reversed to the extent it requires the Board “not to deny further parole consideration for more than one year in the case of prisoners who have formerly been denied for one year, in the absence of a significant change in circumstances, which must be stated on the record.” The trial court’s order of May 10, 2007, is reversed to the extent it relates to the preparation of parole hearing transcripts or imposes penalties for the untimely preparation of such transcripts.
Jenkins, J., concurred.
All further statutory references are to the Penal Code unless otherwise specified.
The named respondent in the trial court action is the acting warden of San Quentin State Prison. Because the case challenges actions of the Department of Corrections and Rehabilitation (Department), which includes the Board of Parole Hearings, the proper respondent under sections 1474 and 1477 is the acting secretary of the Department. For the sake of simplicity and because the Board is the subject of the orders that are at issue on appeal, we shall in most instances refer to the respondent as “the Board.”
The consequence of a multiyear denial is that the next scheduled parole suitability hearing will not be conducted for another two to five years. (See § 3041.5, subd. (b)(2).) By contrast, when the Board issues a one-year denial, the matter is heard on an annual basis. (Ibid.)
Petitioners supported their contention with 16 unverified “lifer poll” questionnaires completed by 16 inmates previously issued one-year denials who subsequently received multiyear denials. At most, the record contains evidence that some multiyear denials have followed prior one-year denials. Even that showing is questionable as an evidentiary matter because the 16 lifer polls submitted to the trial court are unverified.
The fee was calculated by taking the undisputed fee amount of $58,460, subtracting out the amount already paid directly to class counsel by Marin County ($3,010.34), and then multiplying the remaining unpaid fees ($55,449.66) by 1.5 to arrive at $83,174.49.
The record on appeal reflects that the issue was first brought to the attention of the trial court in a letter dated September 18, 2006, from a prisoner incarcerated at Soledad State Prison. The prisoner attached a habeas corpus petition filed in the Monterey County Superior Court in which he objected to the delay in receiving his parole hearing transcript on behalf of a putative class of prisoners. In the cover letter, the prisoner stated he was sending the court a copy of his petition because the court was “already dealing with the BPH on a delay of hearings.”
The issue before us is whether the trial court’s order is inconsistent with statutory law and violates the constitutional separation of powers. While it may be true that the evidentiary showing offered by petitioners is insufficient to support any remedial order designed to enforce standards for issuing multiyear denials (see fn. 4, ante), our analysis would be insufficient and incomplete if we were to vacate the trial court’s order solely on the ground there is insufficient evidentiary support for the requested relief. Instead, in light of the ongoing nature of this matter, we clarify that the particular form of relief ordered by the trial court is inconsistent with the relevant statute and intrudes upon the discretion afforded to the Board, irrespective of the state of the evidence.
We have no occasion to consider whether and to what extent relief may be afforded in a case in which an inmate has demonstrated a persistent violation of constitutional rights of large numbers of persons. Petitioners made no such constitutional claim in the trial court, but instead argued in effect that the Board was acting in a manner that constituted an abuse of discretion and violated statutory standards. On appeal, although petitioners make several references to “due process” in their brief, they have not offered a factual or legal showing that the purported actions taken by the Board rise to the level of a constitutional violation. (Cf. In re Jackson (1985) 39 Cal.3d 464, 474, 476, 477, fn. 12 [216 Cal.Rptr. 760, 703 P.2d 100] [while opportunity to be heard is important right, multiyear denials do not affect eligibility for parole but only the frequency of hearings, and statute contains safeguards to guarantee that any postponement decision will be well founded].)
As a practical matter, the analysis and result would be no different under the abuse of discretion standard, because a trial court abuses its discretion when it misinterprets the law and proceeds in a manner not authorized by law. (Upland Police Officers Assn. v. City of Upland, supra, 111 Cal.App.4th at p. 1301.)
If an inmate consistently received one-year denials of parole and then received a multiyear denial, a court might be justified in closely scrutinizing the decision issuing a multiyear denial to ensure that it is supported by some evidence in the record. However, some evidence is all that is required. A panel of the Board need not point to additional evidence supporting its departure from the discretionary decisions of earlier panels.
An individual Board member’s subjective motivation for a parole decision is irrelevant provided there is some evidence to uphold the decision. (Cf. Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006, 1022 [73 Cal.Rptr.2d 841, 953 P.2d 1188] [reviewing court may not explore subjective motivations for an agency decision but must instead conduct an objective inquiry of the evidence supporting the agency’s findings].)
In its reply brief, the Board contends it established criteria in 1995 for determining whether a multiyear denial of parole is appropriate. Petitioners have moved to strike this discussion from the Board’s reply brief, arguing that this issue as well as several others were improperly raised for the first time on reply. Petitioners also seek to strike from the reply brief challenges to the evidence and the Board’s argument that there is no constitutional right to timely parole hearings. Because our decision does not turn on these issues allegedly raised for the first time in the Board’s reply brief, we deny the motion to strike as moot.
Although the Bode court recognized that prisoners have a due process right to receive a hearing transcript in a reasonably timely fashion (Bode, supra, 74 Cal.App.4th at p. 1007, fn. 2), that constitutional right is distinct from the 30-day statutory deadline for providing transcripts to members of the public. In Bode, the court concluded that the petitioner’s constitutional due process rights were satisfied by receipt of the parole hearing transcript within 68 days of the hearing. (Id. at pp. 1004, 1007, fn. 2.)
A court may grant relief without issuing an order to show cause or a writ of habeas corpus only when the petitioner’s custodian “stipulate[s] to the truth of the petition’s allegations and to the requested relief.” (People v. Romero, supra, 8 Cal.4th at p. 740, fn. 7.)
Because the Board has not challenged the trial court’s order certifying a prisoner class, we have no occasion to consider the propriety of class certification in this habeas corpus matter. (See In re Walters (1975) 15 Cal.3d 738, 744, fn. 3 [126 Cal.Rptr. 239, 543 P.2d 607] [class certification unnecessary in habeas corpus proceeding because habeas corpus procedure already provides vehicle for general declaration of procedural rights of similarly situated individuals].)