MOORE, J.
This is the third appeal arising out of what we previously characterized as "an acrid dispute between neighbors." In the first appeal, we reviewed the rulings on numerous causes of action contained in the complaint of James Michael Harm and Soraya Maria Harm and the cross-complaint of Wayne T. Hetman, reversing certain rulings and affirming others. (Harm v. Hetman (June 25, 2009, G039955) [nonpub. opn.].) In the second appeal, we reversed the order denying attorney fees to the Harms and remanded the matter to the trial court with instructions to award fees to them only on the three causes of action arising out of certain covenants, conditions and restrictions (CC&R's). (Harm v. Hetman (June 25, 2009, G040454) [nonpub.opn.].)
On remand, the trial court modified the judgment as we required, with respect to the various causes of action. It also entered a postjudgment order awarding to the Harms $75,754 in attorney fees for trial work and $114,311 in attorney fees for appellate work. Hetman appeals from the $114,311 attorney fees award. He claims that the fees are excessive and that the court abused its discretion in making the award. We disagree and affirm.
On remand after the first two appeals, the Harms filed a motion for attorney fees in which they sought to recover $385,083—$201,500 for trial work and $183,953 for posttrial work. Hetman opposed the motion stating, inter alia, that the Harms had failed to establish what portion of the fees were incurred with respect to the causes of action for which they were entitled to fees. In their reply, the Harms asserted that they were entitled to all of their fees because they were the prevailing parties on all causes of action.
The court held a hearing on October 22, 2009. At that time, it ordered the modification of the judgment in conformity with our directions. It also continued the Harms' motion for attorney fees to December 3, 2009. The court ordered further briefing with respect to attorney fees, with the Harms to provide, inter alia, "billings for the fees sought for the trial court proceedings, and . . . an apportionment of the fees sought between the CC&R claims and the slander of title and quiet title claims . . . ."
In their November 5, 2009 brief in support of their motion for attorney fees, the Harms requested 60 percent of their attorney fees incurred in connection with the trial work and 90 percent of their attorney fees incurred in connection with the posttrial work. They stated: "The attached Declaration of [Attorney] Richard A. Jones estimates 90% to 95% of the legal fees incurred post trial through the two Appeals was concentrated on the causes of action for which plaintiffs/cross-defendants are entitled to attorney's fees. Accordingly, in connection with the legal fees post trial through the Appeal, plaintiffs/cross-defendants are entitled to 90% of the attorney's fees in the amount of $163,302.75 ($181,447.50 × .90 = $163,302.75)." Attorney Jones's declaration was supported by 79 pages of billing records of the law firm of Doss & Page for pretrial work, 30 pages of billing records of the Law Offices of Richard A. Jones in connection with trial work, and 26 pages of billing records of the Law Offices of Richard A. Jones with respect to posttrial work.
In his opposition, Hetman emphasized that the Harms were not entitled to fees with respect to any cause of action that did not seek to enforce the CC&R's. He also stated that there was no authority for the recovery of attorney fees in connection with causes of action for quiet title or slander of title. Hetman further argued that the attorney billing records the Harms submitted contained a variety of false entries. The Harms filed a reply in which they stated that Attorney Jones had carefully reviewed the billing records and that the requested fees were reasonable and should be awarded.
The court, as noted previously, awarded the Harms $75,754 in attorney fees for trial work and $114,311 in attorney fees for appellate work.
The November 16, 2009 judgment decreed, inter alia, that the Harms recover "attorneys fees and costs in the amount of $______." The December 17, 2009 minute order stated: "The Court heard argument on the motion for attorney fees. The Court grants attorney fees in the amount of $75,754.00 for trial. The Court also grants attorney fees in the amount of $114,311.00 for the appeal."
In his January 29, 2010 notice of appeal, Hetman stated that he appealed from the judgment entered on November 16, 2009. His notice of appeal did not mention the December 17, 2009 postjudgment order granting attorney fees. However, in his appellate brief, Hetman challenges only the amount of the $114,311 attorney fees award.
The December 17, 2009 postjudgment order on attorney fees was a separately appealable order (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46-47) from which Hetman took no appeal. We gave the parties the opportunity to provide supplemental briefing addressing whether this court has jurisdiction to entertain the appeal. We specifically asked whether the appeal should be dismissed as challenging the December 17, 2009 postjudgment order from which no appeal was taken (see, e.g., Norman I. Krug Real Estate Investments, Inc. v. Praszker, supra, 220 Cal.App.3d at pp. 46-47) or whether the notice of appeal from the November 16, 2009 judgment should be construed as subsuming the later order setting the amount of the attorney fees award (see, e.g., Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998). In their supplemental letter briefs, Hetman argues that this court has jurisdiction to hear the appeal, whereas the Harms argue that it does not.
Clearly, the December 17, 2009 postjudgment order was an appealable order and the most prudent thing for Hetman to do would have been to file an appeal from that order. (See, e.g., Norman I. Krug Real Estate Investments, Inc. v. Praszker, supra, 220 Cal.App.3d at pp. 46-47.) However, unlike the situation in Norman I. Krug Real Estate Investments, Inc. v. Praszker, supra, 220 Cal.App.3d 35, where the judgment did not award attorney fees, in the matter before us the judgment did award attorney fees, albeit in an undesignated amount. Here, the rule of Grant v. List & Lathrop, supra, 2 Cal.App.4th 993 controls. As stated in that case, "when a judgment awards costs and fees to a prevailing party and provides for the later determination of the amounts, the notice of appeal subsumes any later order setting the amounts of the award." (Id. at p. 998.)
Furthermore, in this case, there was nothing to appeal from but the amount of the attorney fees award. The parties had already appealed from the judgment and we had already ordered that the judgment be modified, including that it be modified to include an award of attorney fees to the Harms. Although Hetman did not use the best vehicle for challenging the amount of the attorney fees award, the Harms could not have been confused about the nature of the appeal. "`[I]t is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.' [Citations.]" (D'Avola v. Anderson (1996) 47 Cal.App.4th 358, 361.) Furthermore, "there is a well recognized policy in favor of resolving appeals on their merits [citation] . . . ." (Winter v. Rice (1986) 176 Cal.App.3d 679, 683.) We turn now to the merits of the appeal.
"We review an order granting or denying fees for an abuse of discretion. [Citation.]" (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 148.) "`[W]e will not disturb the trial court's decision unless convinced that it is clearly wrong, meaning that it is an abuse of discretion. [Citations.]'" (Ibid.) "The only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination. [Citation.]" (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.)
Hetman argues that the court abused its discretion in awarding $114,311 in attorney fees with respect to the prior appeals. He complains that while the Harms submitted attorney time sheets in support of their request for $181,447.50 in posttrial attorney fees, they did not provide a breakdown showing which attorney fees were incurred with respect to the causes of action pertaining to the CC&R's. He is correct on that point. The time sheets showed work performed from August 21, 2007 through April 20, 2009. They reflected the nature of the service performed, the date of service, the amount of time spent, and the dollar amount charged.
For example, with respect to the appellate briefing, the Law Offices of Richard A. Jones billed 4.6 hours for the preparation of the statement of the case, .6 hours for the preparation of the statement of appealability, .6 hours for the statement of the standard of review, and .6 hours for the preparation of the statement of issues presented. The billing statement did not articulate what portion of the time spent with respect to each billing entry was devoted to each cause of action. But that would be an uncommon amount of detail in a billing statement, we must say.
Hetman also complains that the billing statements failed to reflect what portion of the time billed pertained to work performed by Attorney Aarin A. Zeif, whom Attorney Jones associated on the case. As Hetman points out, Attorney Zeif was admitted to practice law on December 5, 2006. He asserts that some of the work billed for was actually performed by Attorney Zeif, not Attorney Jones, and should have been billed at a lower rate than that charged for services performed by Attorney Jones, a more experienced attorney.
Hetman cites billing entries pertaining to a notice designating the record on appeal, a telephone conversation with opposing counsel about a joint proposed briefing schedule, and analyses of the joint proposed briefing sequence, as examples of entries he believes reflect time spent by Attorney Zeif, not Attorney Jones. Although the time sheets do not reflect which attorney performed the work, Hetman contends that Attorney Jones was claiming to have performed work that was in fact performed by Attorney Zeif.
We observe that the first page of the billing statement lists both Attorney Jones and Attorney Zeif under the umbrella of the Law Offices of Richard A. Jones, although the billing statement does not appear to indicate which attorney performed which service. Consequently, to the extent the time entries may reflect work performed by Attorney Zeif, it would appear that her work was billed out at the same hourly rate as Attorney Jones. This may raise an issue of whether the billing rate for Attorney Zeif was reasonable given her relative inexperience at the time the services were performed. However, we see no indication that Attorney Jones falsely claimed to have performed work that was in fact performed by Attorney Zeif.
In addition to raising issues concerning which attorney performed which service, Hetman claims that some of the billing entries must be just plain wrong. He references one telephone conversation between opposing counsel for which the Law Offices of Richard A. Jones billed .6 hours and Hetman's counsel, Attorney Andrew D. Weiss, billed .2 hours. He also cites one purported telephone conversation for which the Law Offices of Richard A. Jones billed .2 and Attorney Weiss billing nothing. Attorney Weiss declared that either the conversation never took place, or it was so short that he did not even bill for it.
Furthermore, Hetman draws attention to a couple of billing entries pertaining to the joint proposed briefing sequence that he asserts were wrongly entered on the time records after the order on the joint briefing sequence was entered by this court. We note that Hetman misquotes one of those entries as reading: "Analysis of Joint Proposed Briefing Sequence." In fact, the April 2, 2008 entry reads: "Analysis of Order regarding proposed Briefing Schedule." (Italics added.) The review of an order, after it is entered, is both appropriate and encouraged. However, we agree that the $640 charge for "Preparation of Joint Proposed Briefing Sequence," noted on the time sheet several days after the order on the briefing sequence was entered, appears to be erroneous, at least as to the date the service was performed.
Hetman claims "[t]he false billing entries render the bills so unreliable as that they cannot be used to accurately determine the actual time spent by Respondents' attorneys or the value of those services." He further charges that the billing information the Harms provided was insufficient "for the trial court to perform even a rough calculation of recoverable and non-recoverable fees, [so] the award must be reversed as arbitrary and an abuse of discretion." We disagree.
Even if the court had found that the billing records "`were not a hundred percent reliable' [or] were `less than completely reliable,'" it would have been an abuse of discretion if it had rejected those records wholesale and failed to give them consideration. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396-397.) Moreover, to the extent a party challenges an award of attorney fees based on the allegation that the billing records are "inflated, meritless and incurred either unnecessarily or not at all," the party requests that the we reweigh conflicting evidence on appeal. (Del Cerro Mobile Estates v. Proffer (2001) 87 Cal.App.4th 943, 950.) This we do not do. (Ibid.) Furthermore, to the extent that the billing records may contain some inaccuracies, we observe the trial court did reduce the total $181,447.50 bill by $67,136.50. This reduction represents far more than the total of the entries Hetman claims must surely be erroneous. Consequently, "on this record [Hetman] has not established judicial error with respect to the amount of the challenged attorney fee award." (Ibid.)
We observe that, in his declaration in support of the Harms' brief on attorney fees, Attorney Jones expressed his opinion that the Harms were entitled to attorney fees with respect not only to the causes of action arising out of the CC&R's, but also with respect to the causes of action for quiet title and slander of title. He declared that 90 to 95 percent of the time spent on the prior appeals pertained to "the causes of action for which [the Harms were] entitled to attorney's fees." It would appear that Attorney Jones was improperly including fees for quiet title and slander of title in his 90 to 95 percent estimate. However, the court did not award the Harms the 90 percent requested. The court awarded the Harms $114,311 out of the $181,447.50 in time Attorney Jones billed, or 63 percent of the time spent posttrial.
Hetman claims this was too much. He says the parties raised nine issues on appeal, but only three of them had to do with the CC&R's. Therefore, he says, only one-third of the attorney fees should have been allocated to recoverable issues. We disagree. Hetman cites no authority for the proposition that attorney fees must be awarded on a fractional basis of that nature.
Moreover, we observe that one of the two appeals, Harm v. Hetman, supra, G040454, was devoted entirely to issues concerning attorney fees owing under the CC&R's. In other words, the Harms should have recovered all of their attorney fees incurred with respect to that appeal. As to the other appeal, Harm v. Hetman, supra, G039955, we observe that our opinion addressed seven major issues—the one final judgment rule, quiet title, slander of title, expert testimony, an injunction against Hetman, punitive damages, and an injunction against the Harms with respect to their proposed construction of a stucco block wall. The last of these issues, the injunction against the Harms, is the one arising out of the CC&R's.
We see now that in charging the trial court with the responsibility for affixing fees for legal work arising out of the CC&R's, we imposed upon that court an unenviable task. It would be unusual for an attorney to break every billing entry into subparts to try to allocate time in the preparation of a brief, for example, on a cause-of-action by cause-of-action basis. The Harms' attorneys did not do that here, but we asked the trial court to try to determine fees as though they it had in fact done it.
We see from the record that the trial court made every effort to determine fees in the manner we directed. It ordered further briefing on attorney fees and the submission of additional billing records. It scheduled a hearing on the matter for argument concerning the briefing and information received.
At the hearing, the trial court correctly expressed its understanding that this court allowed attorney fees only in connection with the causes of action arising out of the CC&R's. It also observed that the Harms appeared to be trying to obtain more—to recover attorney fees in connection with the quiet title and slander of title causes of action as well. The court noted that it found the hourly rate charged to be reasonable. It also remarked: "You wouldn't know it, but I spent about four and a half hours on this." The court also said: "I tried my best to be as reasonable on these figures as I could by looking through all the stuff."
The record reflects the fact that the court carefully reviewed the information presented. It also shows that one of the appeals pertained only to the CC&R's causes of action and the other appeal contained substantial issues pertaining to one of the CC&R's causes of action. In addition, we recognize that it may be "`"impracticable, if not impossible, to separate the multitude of conjoined activities into compensable or noncompensable time units."' [Citation.]" (Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1085.) Furthermore, when a party is entitled to attorney fees with respect to some causes of action but not others, the court may reduce attorney fees "in its discretion if it cannot ascertain and omit those specific hours spent on the unrelated causes of action." (Graciano v. Robinson Ford Sales, Inc., supra, 144 Cal.App.4th at p. 161.)
"The award granted was significantly reduced from the original request as a result of the trial court's indication that it did not look favorably on the full request. Thus, it clearly appears that the trial court exercised its discretion. In these circumstances, we cannot conclude that the award of attorney fees shocks the conscience or suggests that passion and prejudice had a part in it. As such, we conclude that the trial court did not abuse its discretion in awarding the attorney fees that it did." (Akins v. Enterprise Rent-A-Car Co., supra, 79 Cal.App.4th at p. 1134.)
In their respondents' brief and again in their supplemental letter brief regarding jurisdiction, the Harms request sanctions against Hetman and his attorney for filing a frivolous appeal. "California Rules of Court, rule 8.276(b)(1) requires a request for appellate sanctions be made by a separate `motion . . . served and filed . . . no later than 10 days after the appellant's reply brief is due.' [The Harms] failed to comply with this procedural requirement. That reason alone is grounds to deny the request. [Citation.]" (Bak v. MCL Financial Group, Inc. (2009) 170 Cal.App.4th 1118, 1127-1128.)
The judgment and postjudgment order are affirmed. The Harms shall recover their costs on appeal.
WE CONCUR:
O'LEARY, ACTING P. J.
FYBEL, J.
