Filed 6/24/20 Shuler v. Capital Agricultural Property Services, Inc. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

LYNN SHULER et al.,

Plaintiffs and Respondents,

v.

CAPITAL AGRICULTURAL PROPERTY SERVICES, INC. et al.,

Defendants and Appellants.

2d Civil No. B294555

(Super. Ct. No. 56-2015-00469359-CU-PO-VTA)

(Ventura County)

In this negligence/trespass action, Capital Agricultural Property Services, Inc. (CAPS), et al., appeal from an order awarding attorney fees to respondents Lynn Shuler and Michael Shuler. Appellants advance several arguments in support of their claim that the trial court abused its discretion. We affirm.

This is the third time that the parties have appeared before us in this case. Their first appearance resulted in a published opinion: Dreamweaver Andalusians, LLC v. Prudential Insurance Co. of America (2015) 234 Cal.App.4th 1168 (Dreamweaver). The second appearance also resulted in a published opinion: Shuler v. Capital Agricultural Property Services, Inc. (2020) 49 Cal.App.5th 62 (Shuler or 2020 published opinion).

Factual and Procedural Background

Respondents owned a 22-acre ranch in Somis, California. They leased the property to Dreamweaver Andalusians, LLC (Dreamweaver), which conducted “a horse boarding business on the property.” Respondents were the sole owners of Dreamweaver.

Respondents’ ranch shared a common boundary with Las Posas Farms, owned by Sunshine Agriculture, Inc. (Sunshine). CAPS “was the overall manager of Las Posas Farms,” which consisted of approximately 700 to 800 planted acres. Sierra Pacific Farms, Inc. (Sierra) was the “on-site manager of Las Posas Farms.” Sunshine, CAPS, and Sierra are hereafter collectively referred to as “appellants.”

Sierra expanded its agricultural operations onto a hillside above respondents’ property. In March 2011 the hillside collapsed onto their property.

Respondents and Dreamweaver filed an action (Shuler 1) against appellants, Doug O’Hara (Sierra’s president), and Haejin Lee, who had prepared the engineering plans for the hillside development. The complaint alleged: “The Defendants . . . were responsible for the removal of historic watercourses and stable ground cover and also for unreasonable grading, irrigation, planting and maintenance of the hillside slope above [respondents’] . . . property. . . . Defendants acted negligently in failing to take steps to prevent the land from collapsing.”

Haejin Lee was an employee of the Natural Resource Conservation Service (NRCS), a division of the United States Department of Agriculture. The trial court concluded that the NRCS was a necessary and indispensable party. The court observed that the NRCS “cannot be joined to the action by cross-complaint because it is a Federal agency not amen[ ]able to being sued in a state court.” (See 28 U.S.C. § 1346, subd. (b)(1) [federal district courts “have exclusive jurisdiction . . . on claims against the United States, for money damages . . . for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his . . . employment”].) The trial court dismissed Shuler 1 without prejudice. Respondents and Dreamweaver appealed to this court. We affirmed the judgment of dismissal. (Dreamweaver, supra, 234 Cal.App.4th 1168.)

Respondents and Dreamweaver filed an action (Shuler 2) in federal district court against appellants and the United States. In May 2015 respondents and Dreamweaver accepted a $50,000 offer of judgment from the United States pursuant to rule 68 of the Federal Rules of Civil Procedure. The settlement was incorporated into a judgment that provided, “Acceptance of the offer of judgment has acted to release and discharge defendant United States of America . . . and all past and present officials, employees, representatives and agents of United States of America, from any claims that were or could have been alleged by [respondents and Dreamweaver] in this action.”

Pursuant to Code of Civil Procedure section 877.6, the federal district court granted the application of the United States for a determination that the settlement was made in good faith. On June 15, 2015, the court dismissed Shuler 2 for lack of federal subject matter jurisdiction.

On July 6, 2015, 21 days after the dismissal of the federal action, respondents and Dreamweaver filed a new state court action (Shuler 3) against appellants and Sierra’s president, Doug O’Hara. The present appeal arises from this action.

The complaint in Shuler 3 consisted of four causes of action, including negligence and trespass. The cause of action for trespass alleged that defendants had “negligently caused the uphill property to come upon the plaintiffs’ property without permission or license or necessity.”

The case was tried to a jury. The jury returned a special verdict finding that Doug O’Hara was not negligent but that appellants had “negligently trespass[ed] or cause[d] a landslide to trespass upon Plaintiffs’ property.” The jury also found that Haejin Lee and Travis Godeaux were negligent and that their negligence was a substantial factor in causing harm to plaintiffs.

Godeaux was an engineer and employee of the NRCS. He performed a “geologic reconnaissance” of the hillside above respondents’ property. He “went to the site on several occasions and instructed the people implementing the plan that they needed to make certain changes.”

In its special verdict the jury apportioned negligence and causation as follows: Sierra – 10 percent; CAPS – 10 percent; Sunshine – 10 percent; respondents – 2 percent; Travis Godeaux – 34 percent; Haejin Lee – 34 percent. Thus, appellants together were responsible for 30 percent of the total negligence and causation, while Godeaux and Lee together were responsible for 68 percent.

The jury awarded respondents economic damages of $1,756,499.99 and noneconomic damages of $50,000. It did not award any damages to Dreamweaver.

In its judgment, the trial court noted that it had earlier ruled “that [appellants] are not liable for the conduct of the Federal Government, and its employees, Haejin Lee and Travis Godeaux, based upon the preclusive effect of the Federal Court Judgment.” Therefore, as to economic damages, the court ordered that appellants are jointly and severally liable to respondents only for their 30 percent share of the negligence: $526,950 less an offset of $66,666.67 for amounts paid by settling tortfeasors. Accordingly, appellants’ joint and several liability for economic damages was reduced to $460,283.33.

Respondents and Dreamweaver were represented by two attorneys – Richard R. Bredlau and Glenn J. Campbell. The court awarded respondents their reasonable attorney fees for Shuler 2 and Shuler 3 but not for Shuler 1. For Bredlau’s services, the trial court awarded a lodestar amount of $394,080. It applied a 1.4 multiplier to this amount, increasing Bredlau’s attorney fees to $551,712. For Campbell’s services, the court awarded a lodestar amount of $513,000. It again applied a 1.4 multiplier, increasing Campbell’s fees to $719,000.

Respondents appealed from the judgment. They did not appeal from the order awarding attorney fees. Appellants appealed from the order awarding attorney fees but not from the judgment.

Our 2020 published opinion concerned respondents’ appeal from the judgment. We vacated the trial court’s order reducing economic damages by 68 percent. We modified the judgment to award respondents’ economic damages in the amount determined by the jury – $1,756,499.99 – less the amount paid by settling tortfeasors to respondents, less $35,130 for respondents’ two percent contributory negligence. (Shuler, supra, 49 Cal.App.5th at p. 71.)

Statutory Basis for Award of Attorney Fees

Respondents’ award of attorney fees was based on their cause of action for trespass. The award was made pursuant to section 1021.9, which provides, “In any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs . . . .” (Ibid.)

Standard of Review

“The determination of an appropriate statutory fee award is committed to the trial court’s sound discretion . . . . Trial judges are entrusted with this discretionary determination because they are in the best position to assess the value of the professional services provided in their courts.” (Cates v. Chiang (2013) 213 Cal.App.4th 791, 820-821 (Cates).) “We review the trial court’s award of attorney fees [under section 1021.9] for abuse of discretion, which we find only if no reasonable basis for the court’s action is shown.” (Hoffman v. Superior Ready Mix Concrete, L.P. (2018) 30 Cal.App.5th 474, 489 (Hoffman).) “Judicial discretion ‘implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason.’ [Citation.] . . . It is the appellant’s burden on appeal to show the trial court abused its discretion.” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957.)

No Abuse of Discretion in Awarding Fees for Shuler 2

Section 1021.9 provides that “the prevailing plaintiff shall be entitled to reasonable attorney’s fees . . . .” (Italics added.) Appellants contend that section 1021.9 “precludes [respondents’] recovery of attorneys’ fees incurred in the separate federal action [Shuler 2], where they did not prevail . . . at all.”

The trial court gave the following explanation for its award of attorney fees for Shuler 2: “Shuler 2 was the continuation of the dispute between the parties in Federal Court in Los Angeles including the USA defendants. . . . [¶] . . . The case was concluded by [the federal district court judge] exercising his discretion regarding state law claims, and referring them back to state Superior Court. In doing this, he made no findings regarding the merit of those claims. He simply exercised a predictable discretion in declining to hear what was now an action asserting only state law claims. As such, Shuler 3 was an extension of Shuler 2 in another courthouse. The trespass cause of action remained unchanged as to both facts and parties.” (Italics added.)

The trial court did not abuse its discretion. After we affirmed its order dismissing Shuler 1 for failure to join the NRCS as a defendant, to obtain relief respondents were required to sue the United States and appellants in federal district court (Shuler 2). (28 U.S.C. § 1346, subd. (b)(1).) As between appellants and respondents, in federal court there was no prevailing party. The federal court said it had denied appellants’ motion to recover their costs from respondents because it had “dismissed the action for lack of subject matter jurisdiction. Therefore, [appellants] are not prevailing parties . . . .” The federal court noted that, when the state “action concludes, the Superior Court may award the prevailing party costs incurred in both the state and federal actions.”

Thus, “[i]n obtaining dismissal in favor of a [California state] venue, [appellants] did not defeat [respondents’] claims, but succeeded only in moving their resolution to another

forum. . . . Far from ‘obtain[ing] a “simple, unqualified win”’ . . . , [appellants] merely obtained a different forum in which to oppose them.” (DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968, 975.) In these circumstances, the trial court reasonably considered Shuler 3 to be a continuation of Shuler 2. (See Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 41 [where plaintiff voluntarily dismissed timely filed first action in federal court and promptly filed a second action in state court after the statute of limitations had expired, the second action “‘is in reality a continuance of the earlier action’” for the purpose of determining whether the second action was timely filed].) It would be manifestly unjust to penalize respondents for settling with the United States by barring their recovery of attorney fees incurred in the Shuler 2 federal litigation against appellants. (See Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 32 [there is a “strong public policy in favor of encouraging the settlement of disputes”].)

No Double Recovery

The federal court judgment says that the United States’ payment of $50,000 to Dreamweaver and respondents “include[s] all . . . attorney’s fees . . . incurred to the date hereof in this matter.” Sierra contends that this recitation in the judgment precludes respondents from recovering “attorney’s fees for the federal-court case (Shuler 2) and . . . for proving the NRCS’s 68% negligence in this case (Shuler 3).” Otherwise, respondents would obtain “a double recovery.”

Sierra misconstrues the federal court judgment. It applies only to respondents’ action against the United States. The judgment precludes respondents from recovering attorney fees incurred in litigation against the United States and its employees. It does not preclude respondents from recovering attorney fees incurred in litigation against appellants. There is no double recovery.

No Abuse of Discretion in Not Excluding

Fees for Services Provided to Dreamweaver

The jury did not award damages to Dreamweaver. Therefore, it was not a prevailing party entitled to attorney fees under section 1021.9. Appellants claim that the trial court abused its discretion in failing to exclude from the fee award all fees attributable to legal services provided by Bredlau and Campbell to Dreamweaver.

Attorney Bredlau declared: He represented respondents from 2012 “until shortly before the trial . . . began . . . , when I officially became the attorney of record for Dreamweaver.” Bredlau’s summary of his time lists “the hours for time actually spent . . . through February 3, 2017 when I substituted out as attorney of record for [respondents] and substituted into representing Dreamweaver . . . , only, before the 27 day trial began.”

Respondents concede that Bredlau “was co-counsel representing [respondents] and Dreamweaver between 2012 and 2017, and then substituted out as [respondents’] counsel in February 2017 and represented only Dreamweaver.” The trial court noted that Bredlau “states he excluded the time he was representing just Dreamweaver,” i.e., the time after February 3, 2017.

Bredlau submitted a 61-page billing statement detailing the hours he had spent on the case from February 8, 2012, through February 3, 2017, except that the statement also included four hours for work performed on February 29, 2017. The total number of hours claimed was 1,607.75, but the trial court allowed 985.2 hours. We presume that it disallowed the four hours for services performed on February 29, 2017, when Bredlau represented only Dreamweaver.

Attorney Campbell declared that he had been “counsel for all three . . . plaintiffs [Lynn Shuler, Michael Shuler, and Dreamweaver] since March 18, 2011,” the day of the landslide. Campbell claimed 1,920 hours, but the court allowed 1,284 hours.

“‘Once a trial court determines entitlement to an award of attorney fees, apportionment of that award rests within the court’s sound discretion.’” (Hoffman, supra, 30 Cal.App.5th at p. 485.) The trial court acted within its discretion in not apportioning the fees between respondents and Dreamweaver. “‘Apportionment is not required when the issues in the fee and nonfee claims are so inextricably intertwined that it would be impractical or impossible to separate the attorney’s time into compensable and noncompensable units.’” (Ibid.) The trial court could have reasonably inferred that respondents’ and Dreamweaver’s claims were “‘so inextricably intertwined.’” (Ibid.) The claims were identical. They were based on the landslide, which was allegedly caused by appellants’ negligence. Bredlau declared: “Almost all of [his and Campbell’s] time during the more than 6 years of this case was in working on the liability aspect . . . to gather evidence and be able to prove at trial that the

landslide . . . was negligently caused by the defendants . . . .” Question 5 in the special verdict form asked, “Did any of the . . . defendants negligently trespass or cause a landslide upon Plaintiffs’ property?” (Italics added.) The jury answered in the affirmative as to all three appellants. Thus, respondents’ and Dreamweaver’s claims involved common issues of negligence and causation.

Appellants contend that the trial court should have excluded from the fee award time spent preparing for Michael J. Krycler’s trial testimony as to the amount of Dreamweaver’s damages, i.e., its allegedly lost profits. Krycler is a certified public accountant (CPA). The trial court could have reasonably inferred that Bredlau performed the preparation work for Krycler’s testimony during the period that he was exclusively representing Dreamweaver. Appellants were not awarded attorney fees for Bredlau’s services during this period, which began on February 3, 2017. Krycler testified on March 29, 2017, more than seven weeks later. This was adequate time to prepare for Krycler’s testimony.

Krycler was deposed in 2016. Appellants argue, “Campbell . . . claimed $3,555 in fees for preparing for and attending Krycler’s deposition, when the expert’s trial testimony related to Dreamweaver’s damages.” Appellants do not refer us to evidence in the record showing that the deposition related only to Dreamweaver’s damages. Krycler testified that he had been retained “to consider and conclude the financial losses to the parties [respondents and Dreamweaver] relating to the [landslide].” (Italics added.) Before the trial began, Bredlau told the court that plaintiffs needed Krycler to testify “[a]s to the fair market value of the ranch itself before and after [the landslide].” This issue pertained to respondents’ loss as the sole owners of the ranch. In any event, it is reasonable to infer that the 7.9 hours allocated by Campbell to Krycler’s deposition were among the 636 hours claimed by Campbell but disallowed by the trial court.

No Abuse of Discretion in Not Limiting Recovery

of Fees to Respondents’ Cause of Action for Trespass

The jury found in respondents’ favor on causes of action for nuisance, trespass, and negligence. Appellants maintain that the trial court abused its discretion in failing to apportion fees among the causes of action. Appellants argue that the trial court should have limited respondents’ recovery to fees attributable to the cause of action for trespass, the only cause of action for which fees could be awarded under section 1021.9.

The trial court did not abuse its discretion. “‘“Attorney’s fees need not be apportioned when [as here they are] incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” [Citation.] “Attorneys fees need not be apportioned between distinct causes of action where plaintiff’s various claims involve a common core of facts or are based on related legal theories.” [Citation.]’ . . .” (Hoffman, supra, 30 Cal.App.5th at p. 485.) The common core of facts was the landslide and the events leading to this disaster. All of the legal theories related to these facts. The jury found that appellants had negligently caused the landslide resulting in a trespass upon respondents’ property and the creation of a nuisance.

We reject appellants’ claim that the trial court failed to exercise its discretion because it did not make an express finding warranting its decision to not apportion attorney fees. The court impliedly made such a finding by stating, “[W]hen the request [for attorney fees] involves causes of action for which fees may be awarded, and causes of action for which they may not be awarded, so long as the [attorney’s] work . . . can be reasonably related to the fee cause of action, the court may make an award, even if the work also applied to the non-fee cause(s) of action.”

Moreover, an express finding was unnecessary: “We find no California case law . . . requiring trial courts to explain their decisions on all motions for attorney fees and costs . . . . The absence of an explanation of a ruling may make it more difficult for an appellate court to uphold it as reasonable, but we will not presume error based on such an omission. . . . ‘“‘All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown.’” [Citation.]’” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 67.)

No Abuse of Discretion in Not Apportioning

Attorney Fees Based on Fault

Appellants assert that the trial court abused its discretion in not apportioning “a reasonable fee award based on the percentages of [fault] assigned to the appellants by the jury.” The jury found each of the three appellants responsible for 10 percent of the negligence and causation. Therefore, appellants argue, they should together be liable for only 30 percent of the attorney fees. Appellants reason, “It was . . . inherently unjust to require [them] to pay the full amount of attorney’s fees . . . when the jury’s verdict demonstrated that such fees were primarily incurred in order to prove that the majority of the fault for the landslide should be placed on the engineers” employed by the NRCS, i.e., Lee and Godeaux.

In our 2020 published opinion we decided that appellants are jointly and severally liable for the entire award of economic damages, even though they were together responsible for only 30 percent of the fault. (Shuler, supra, 49 Cal.App.5th at p. 72.) It follows that the trial court acted within its discretion in not limiting respondents’ recovery of attorney fees to only 30 percent of the total fees. Such a limitation would frustrate the legislative intent underlying section 1021.9. The Legislature intended that the prevailing party shall be made whole as to its reasonable attorney fees. Section 1021.9 provides that “the prevailing [party] shall be entitled to reasonable attorney fees.” (Italics added.) It does not say that the prevailing party shall recover reasonable attorney fees from a losing party only to the extent that the trier of fact found the losing party to be at fault. (See Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 837-838 [where plaintiff entitled to attorney fees under section 1021.5, no abuse of discretion in not apportioning attorney fees even though one defendant was less culpable than the other defendants; each defendant was jointly and severally liable for the entire award irrespective of fault ].)

No Abuse of Discretion in Awarding

Fees for Campbell’s Services

Campbell claimed he was entitled to compensation for 1,920 hours at an hourly rate of $450. The court awarded compensation for 1,284 hours at an hourly rate of $400. Appellants maintain that the trial court abused its discretion because Campbell’s time statement contains “no workable breakdown of time actually spent on tasks performed.” Moreover, he failed to show “the reasonableness of his requested hourly fee.” Thus, Campbell “provided the trial court with no proper basis for establishing the lodestar amount calculated in the trial court’s ruling.”

Appellants cannot complain that Campbell failed to show “the reasonableness of his requested hourly fee” of $450. The trial court rejected his request. It calculated fees based on an hourly rate of $400. Appellants have not shown that this hourly rate was unreasonable.

The trial court noted, “Campbell did not keep track of his time as the case was developing. This is a bad business practice.” But Campbell prepared a detailed statement reconstructing his time records. The statement described each service performed, the number of hours spent in performing each service or group of services, and the hourly rate.

“The court’s ruling [on Campbell’s attorney fees] was a proper exercise of discretion. Certainly, it would have been preferable if [he] had maintained contemporaneous records . . . . However, the flaws in the supporting evidence did not mean the court was required as a matter of law to award no fees for the substantial work [he] provided . . . .” (Cates, supra, 213 Cal.App.4th at p. 821.) “Reconstruction of time records may be permissible for a fee motion if there is adequate information to reach reasonable estimates of the work described.” (Ibid.) Appellants have not shown that the information provided by Campbell was inadequate to reach a reasonable estimate of 1,248 hours for the services he provided. (See Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 [“it cannot be said in this particular case that the absence of time records and billing statements deprived the trial court of substantial evidence to support an award; we do not reweigh the evidence”].)

Appellants fault Campbell for not “attempt[ing] to break down what time incurred . . . related to causes of action other than the trespass cause of action, or related to the case for Dreamweaver.” As we have previously explained, it was not necessary to apportion fees between Dreamweaver and respondents or between the trespass cause of action and other causes of action.

No Abuse of Discretion in Application of a 1.4 Multiplier

The trial court applied a 1.4 multiplier to the lodestar amount of attorney fees. The court explained: Bredlau and Campbell “were financing a case that lasted 6 years and involved considerable expense in the form of expert witnesses, and multiple depositions. This involved not only the direct expense of paying that money, but also the diversion from other cases.”

“[A] court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.’ [Citation.] . . . [¶] . . . [T]he lodestar . . . may be adjusted by the court based on factors including . . . the extent to which the nature of the litigation precluded other employment by the attorneys, [and] the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132 (Ketchum).)

Bredlau and Campbell provided services and advanced costs under a contingency fee agreement. At a hearing on the request for attorney fees, Bredlau declared: “It’s all on a contingent fee basis. The clients couldn’t afford to pay hourly rates . . . . So there was great risk involved.” Campbell declared under penalty of perjury, “I advanced and incurred costs in this litigation exceeding $130,000.”

“‘[T]he calculation of attorney fee enhancements [is a] highly fact-specific matter[] best left to the discretion of the trial court.’ [Citations.] ‘“‘There is no hard-and-fast rule limiting the factors that may justify an exercise of judicial discretion to increase or decrease a lodestar calculation.’ [Citation.] . . .”’” (Cates, supra, 213 Cal.App.4th at pp. 822-823.)
Sierra argues that the trial court abused its discretion in applying a 1.4 multiplier because (1) respondents’ “use of two attorneys . . . mitigated the risk of one attorney from having to advance costs for the entire time [respondents’] cases were pending”; (2) respondents’ “attorney’s fees were greatly inflated by their attorneys’ strategy to litigate three cases [Shuler 1, 2, and 3], instead of just one”; (3) Sierra was “essentially fault-free” because the jury found its president to be “0% negligent”; and (4) in calculating the lodestar, the trial court “took into account the time, effort and financial risks inherent in representing [respondents] in a landslide case. Those same factors may not be used to apply a 140% multiplier, which ‘result[s] in unfair double counting and [is] unreasonable.’”

The trial court did not abuse its discretion. As to the first argument, we assume that in selecting a 1.4 multiplier, the trial court took into account that the risk was divided between two attorneys. As to the second argument, respondents’ attorneys did not have a “strategy to litigate three cases.” They intended to litigate only one case (Shuler 1), but court rulings compelled them to file Shuler 2 and Shuler 3. The trial court did not award attorney fees for Shuler 1. As to the third argument, the trial court was entitled to rely on the jury’s finding that Sierra was negligent even though its president, O’Hara, was not. Sierra is bound by the jury’s finding because it did not appeal from the judgment. (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 665.) Finally, as to the fourth argument, Sierra has not cited any portion of the record showing that the trial court engaged in impermissible double counting. (See Ketchum, supra, 24 Cal.4th at p. 1142 [in determining multiplier, court cannot consider same factors on which it relied to calculate the lodestar].)

Disposition

The judgment is affirmed. As the prevailing parties in this appeal, respondents shall recover their costs on appeal. For the reasons explained in Shuler, supra, 49 Cal.App.5th at pp. 71-72, they shall also recover their reasonable attorney fees on appeal in an amount to be determined by the trial court.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
Henry J. Walsh, Judge

Superior Court County of Ventura

______________________________

Klinedinst and Robert G. Harrison, Robert M. Shaughnessy and Catherine M. Asuncion for Appellants and Defendants Capital Agricultural Property Services and Sunshine Agriculture.

Grant, Genovese & Baratta and Lance D. Orloff for Appellant and Defendant Sierra Pacific Farms.

Law Offices of Richard R. Bredlau and Richard R. Bredlau; The Ventura Law Group and Glenn J. Campbell; and The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiffs and Respondents.