ABATEMENT ORDER
PER CURIAM.
This order is an effort by this Court, working with the trial court, under the current version of the rules of appellate procedure to ensure that the appellate record is timely filed. TEX. R. APP. P. 35.3(c). This order is also a departure from previous orders of this Court and is our effort to empower the trial court and parties with a procedure to obtain a timely record by establishing a more formal and certain process for early intervention upon the identification of potentially late filed records.
As stated above, the responsibility for assuring the record is timely filed is now the responsibility of the appellate court and the trial court, jointly. TEX. R. APP. P. 35.3(c). Previously, prior to the current rule, it was the responsibility of the litigants to ensure the timely filing of the record. TEX. R. APP. P. 53(k), amended eff. Sept. 1, 1997. This is not to say, however, litigants are prohibited from participating in the process. We believe the attorneys representing the parties play a valuable role in assisting the Courts by appearing at any hearing ordered and (1) making a record of the reason(s) the record has not been timely filed and (2) making a record of the actual or potential prejudice to the parties when a record is filed late.
BACKGROUND
The reporter's record in this appeal was originally due on August 3, 2009. TEX. R. APP. P. 35.2(a). Two reporters were responsible for the preparation of this record. The first reporter received an extension of time to September 30, 2009 to file the record. On that date, the Court received a notice from the first reporter explaining that she could not file the reporter's record because the second reporter had not completed her portion of the reporter's record. Both reporters received an extension to November 5, 2009 to file the record. No reporter's record was filed. On January 5, 2010, the Court received a request for extension of time from the second reporter, Helen Wooten. The request was granted, and the date to file the reporter's record was extended until February 11, 2010. Meanwhile, on January 22, 2010, the portion of the reporter's record from the first reporter was received.
The portion of the reporter's record from Helen Wooten was not filed. On March 24, 2010, the Clerk of this Court notified Wooten that her portion of the reporter's record had not been filed and that she had previously indicated it would be filed by February 11, 2010. Wooten was given 10 days to contact the Court. On April 5, 2010, Wooten requested another extension of time to file her portion of the reporter's record. The request was granted and the date to file her portion of the reporter's record was extended to May 3, 2010. Wooten was warned that if the record was not filed by May 3, 2010, the matter would be referred to the Court. Wooten's portion of the reporter's record was not filed.
In an order dated May 19, 2010, this Court held:
It is the joint responsibility of this Court and the trial court to ensure that the appellate record is timely filed. TEX. R. APP. P. 35.3(c). Further, this Court may enter any order necessary to ensure the timely filing of the appellate record.
Id. Accordingly, Helen Wooten's portion of the reporter's record is ORDERED to be filed no later than 7 days from the date of this order.
Failure to file the reporter's record as herein ordered will result in an abatement order for the trial court, the Honorable J.D. Langley of the 85th District Court, to determine, working with the deputy reporter, Helen Wooten, a date certain by which the supplemental (sic) reporter's record will be filed.
Even after issuance of the May 19, 2010 order, Wooten's portion of the reporter's record was not filed.
We abated this appeal on June 2, 2010 to the trial court so that the trial court could determine a date certain by which Wooten's portion of the reporter's record would be filed. By written order, the trial court relayed that Wooten assured the trial court the record would be filed with this Court by Friday, June 25, 2010. The trial court also recommended that this Court grant Wooten one last extension of time to file her portion of the record to June 25, 2010.
We then reinstated the appeal and ordered Wooten to file her portion of the record by 10:00 a.m. on June 25, 2010. The record was not filed.
By letter dated July 5, 2010, the Clerk of this Court provided a schedule of overdue records to Wooten and requested that Wooten enter a date and initial for each case and return to the Clerk by fax no later than 5:00 p.m. on Tuesday, July 6, 2010. Wooten was informed that it was imperative that the deadline date given for each case be a date by which she felt certain the reporter's records could be filed. Wooten returned the schedule and entered July 26, 2010 as the date this record would be filed. On July 8, 2010, the Court ordered the record to be filed by July 26, 2010.
On July 26, 2010, two volumes of record were received from Wooten. The Clerk noticed, however, that the record was still not complete. On July 30, 2010, the Clerk spoke with Wooten who stated that another volume should have been delivered. She said she would talk to her office and get back with the Clerk. On August 6, 2010, the two volumes which had been received on July 26 were picked up by Wooten's court reporting firm. The Clerk left messages with Wooten on August 10, 2010 and August 11, 2010 regarding the status of the record. The Clerk's calls were not returned.
The Clerk was finally able to reach Wooten by telephone on October 12, 2010. Wooten informed the Clerk that the record was at a typist who would not return any of Wooten's calls. Wooten also told the Clerk that she would send a letter to the Court explaining her situation. No letter was sent, and the Clerk has had no further communications from Wooten.
To this date, Wooten's portion of the record in this appeal has not been filed. The record is now over one year past due. Since the date of the Clerk's last conversation with Wooten, the Court has received a motion from appellant's counsel for this Court to initiate contempt proceedings against Wooten.
ORDER
This appeal is ORDERED abated to the trial court, the 85th District Court, the Honorable J.D. Langley, presiding, to hold a hearing as soon as practicable but not later than 28 days after the date of this Order to determine:
(1) The reason for the lack of response from Helen Wooten;
(2) The reasons why Helen Wooten's portion of the reporter's record is late;
(3) A date certain when Helen Wooten's portion of the reporter's record can reasonably be transcribed into written form and filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving appellant of his right to appeal; and
(4) Whether Helen Wooten is in contempt of court by having failed to file the record with this Court by the date set by order of the Court upon her representation of the date the record would be filed.
Counsel for the parties are ordered to assist the trial court in making its determinations through subpoena and questioning of Helen Wooten and any other necessary witnesses. Helen Wooten shall closely examine her professional and personal schedules and provide those schedules to the trial court in an effort to assist the trial court with a determination of a date certain that her portion of the reporter's record will be filed. The parties' counsel shall also make the trial court aware of any actual or potential prejudices to the parties by the lateness of this reporter's record.
The trial court must order Helen Wooten to file the record by the date determined. Further, if at this hearing the trial court does not find Helen Wooten to be in contempt of court, the trial court must inform Helen Wooten of the consequences of failing to file the record by the date determined and ordered. Those consequences include:
(1) abating the proceeding again to the trial court for a contempt of court hearing;
(2) imposing a lump sum monetary fine;
(3) imposing a daily fine for each day the record is late beyond the date previously determined by the trial court; and
(4) confinement in jail until the record is completed.
The trial court shall require the hearing to be transcribed. To the extent necessary or pertinent to obtaining compliance with the rules regarding preparation of the reporter's record, the trial court must: (1) prepare findings of fact and conclusions of law addressing the above issues; (2) require the preparation of a supplemental clerk's record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in the matter; and (3) require the preparation of a reporter's record transcribing the evidence and arguments presented at the aforementioned hearing. Additionally, the trial court's findings and orders must be provided to the trial court clerk within 7 days from the date of the hearing.
The trial court clerk is ORDERED to provide a supplemental clerk's record, containing the written findings and orders of the trial court, to this Court within 14 days from the date of the hearing.
Further, the trial court's official reporter is ORDERED to provide a record of the hearing held to this Court within 14 days from the date of the hearing.
eelworkers," respondents cannot meet their burden of showing local counsel were either unavailable or lacked the skills necessary to litigate this case. We disagree on both counts.
Generally, "[t]he lodestar figure is calculated using the reasonable rate for comparable legal services in the local community for noncontingent litigation of the same type, multiplied by the reasonable number of hours spent on the case. [Citations.]" ( Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242-1243 [ 66 Cal.Rptr.3d 680] ( Nichols).) In the "unusual circumstance" that local counsel is unavailable, a trial court is within its discretion to consider out-of-town counsel's higher rates. ( Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 399 [ 33 Cal.Rptr.3d 644] ( Horsford).) The trial court may then use those rates either in calculating the initial lodestar figure or in evaluating whether to award a multiplier to a lodestar initially based on local hourly rates. ( Nichols, at p. 1243.)
The Agencies are correct that use of the higher rates for out-of-town counsel as the basis for compensation "requires a sufficient showing . . . that hiring local counsel was impracticable." ( Nichols, supra, 155 Cal.App.4th at p. 1244.) Like the court in Horsford, however, "we doubt a plaintiff needs to make anything more than `a good-faith effort to find local counsel' [citation] in order to justify the fees of out-of-town counsel. . . ." ( Horsford, supra, 132 Cal.App.4th at p. 399.) And as EPIC points out, federal authority holds that the failure to solicit local counsel is not necessarily fatal to proving unavailability. (See Barjon v. Dalton (9th Cir. 1997) 132 F.3d 496, 501.) Our review of the record convinces us the trial court did not abuse its discretion in concluding respondents made the requisite showing.
In support of their motions for attorney fees, both EPIC and the Steelworkers submitted declarations by W. Timothy Needham, a local Eureka lawyer who worked on the case for EPIC. In one declaration filed in support of EPIC's motion for attorney fees, Needham stated he had participated briefly as counsel in this case, but only in "a very specific area in which specialized expertise regarding the matters at issue [was] not required." He further explained that his firm would not have undertaken "primary representation" in either EPIC's or the Steelworkers' lawsuits "because of the specialized knowledge required for their prosecution." Needham also declared he was not aware "of any other local attorney or law firm in Humboldt County who would have represented the petitioners in this matter." A number of other local attorneys submitted declarations in which they stated they would not have been willing to represent EPIC or the Steelworkers in the actions below. These declarations were "sufficient and competent evidence that [respondents] acted in good faith and hiring qualified counsel in [Humboldt County] was impracticable." ( Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 618 [ 115 Cal.Rptr.3d 762].)
Thus, in this case, it appears EPIC successfully sought and found local counsel, and local counsel participated in the case for a brief period. Needham refused to undertake primary representation in this case, however, because he believed he did not possess the specialized knowledge necessary to handle it. This is therefore not a case in which "no effort was made to retain local counsel." ( Nichols, supra, 155 Cal.App.4th at p. 1244.) Instead, from what appears in the record, local counsel were unwilling to take the cases below either because (1) they felt they lacked the necessary resources and/or expertise, (2) they already represented timber harvesters, or (3) they were reluctant to litigate against the county's largest employer, Pacific Lumber. (See Horsford, supra, 132 Cal.App.4th at p. 399 [recognizing that "a potential defendant [may be] too intimidating to the local bar or so replete with resources as to potentially overwhelm local counsel . . ."].) We hold this sufficed to show that hiring local counsel was impracticable. ( Nichols, at p. 1244.)
Finally, we expressly decline the Agencies' invitation to assess in hindsight respondents' decision to use out-of-town counsel. The Agencies cite no authority for doing so, and we are aware of none. Moreover, the Agencies' essential contention is that in the end, this case turned out to be less complex than the case "imagined" by respondents' counsel. Even if true, this would not justify subjecting respondents' decision to use San Francisco counsel to post hoc review. Respondents necessarily made the decision to engage out-of-town counsel at the outset of these proceedings. It would be unfair to expect them to make completely accurate predictions about the ultimate outcome of the case at its inception, and we refuse to impose such a duty on them.
D. Questions of Fee Enhancement fn_
The Agencies next challenge the trial court's application of a 2.0 multiplier to the lodestar amount. They contend the analysis the trial court used to support lodestar enhancement is no longer valid because of the outcome of the appeals on the merits. In addition, the Agencies take issue with the manner in which the trial court weighed and accounted for the various factors traditionally considered in determining whether an adjustment of the lodestar is appropriate. We have already determined that the matter must be remanded, but we will address certain issues raised by the Agencies for the guidance of the trial court in resolving the multiplier issue.
If, on remand, the trial court determines respondents are entitled to an award of attorney fees and then sets an appropriate lodestar amount, it may adjust the lodestar based on a number of factors. Any such adjustment is discretionary, however, and "the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors. . . ." ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138 ( Ketchum).) Moreover, in determining an enhancement, the trial court must take care to avoid double counting and should not consider factors already encompassed within the lodestar figure itself. ( Ibid. [noting that factors of "extraordinary skill, . . . the difficulty of a legal question and the quality of representation are already encompassed in the lodestar"].) The Agencies contend the trial court abused its discretion by double counting the complexity of the litigation both in setting the lodestar amount and in calculating the multiplier. The trial court's fee orders contradict this, stating that respondents' counsel handled a multitude of issues "with unique skill, on a level of expertise substantially exceeding that reflected by the hourly rates assigned to their services." Thus, the trial court awarded a multiplier because it found "the quality of representation far exceed[ed] the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation." ( Ketchum, at p. 1139.) This approach does not constitute double counting.
In Serrano v. Priest, supra, 20 Cal.3d 25, the California Supreme Court listed factors that may weigh in favor of increasing or decreasing the lodestar, 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." ( Id. at p. 49, fn. omitted.) This list is not exclusive, and the trial court may determine that other factors are relevant in a particular case. ( Nichols, supra, 155 Cal.App.4th at p. 1240, fn. 4.)
The Agencies contend the trial court abused its discretion in its consideration of the factor that any attorney fee award in this case would be borne by the taxpayers. They claim the trial court erred by concluding the benefit to the public outweighed the cost to the taxpayers without making any realistic assessment of either the cost or the benefit conferred. The language used by the trial court indicates it erred on this point. The trial court's orders state: "The burden on the public fisc of such an award is outweighed by the significant public benefit achieved by the litigation." But as we recently explained in Northwest Energetic Services, LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841 ( Northwest), "the substantial benefits conferred on the public through this action . . . are considered in determining whether . . . section 1021.5 applies in the first instance." ( Id. at p. 880, italics added.) The significant benefit factor therefore goes to the issue of a party's entitlement to a fee award and does "not provide any basis for calculating the amount of an award, let alone for enhancing or applying a multiplier to the lodestar." ( Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 647.) To the extent the trial court used the significant benefit resulting from the litigation to discount the burden of the fee award to the taxpayer, it abused its discretion. (See ibid. [whether award is justified and amount of award are distinct questions "and the factors relating to each must not be intertwined or merged"].)
As discussed, the fact that the fee award "would ultimately fall upon the shoulders of California taxpayers" "militate[s] against an upward adjustment of the lodestar." ( Northwest, supra, 159 Cal.App.4th at p. 881.) Some courts have accorded less weight to this factor where a public entity has engaged in wrongful conduct and then chosen to defend that conduct "through lengthy and complex litigation." ( Horsford, supra, 132 Cal.App.4th at pp. 400-401 [public entity guilty of racial discrimination].) Although the trial court's fee orders referred to the Agencies' "vigorous, relentless and daunting opposition" to the actions by EPIC and the Steelworkers, we do not think this case is comparable to Horsford. Given that the Agencies ultimately prevailed on a large number of the issues presented in the underlying litigation, they can hardly be faulted for vigorously opposing respondents' claims on those issues.
Finally, the Agencies assert the lower court's conclusion regarding the burden of a fee award upon the taxpayers is no longer valid in light of the state's current budget climate. Although they repeat this contention frequently, the Agencies do not flesh it out in any detail, and they fail to support it with any authority. We therefore decline to address it. (Cal. Rules of Court, rule 8.204(a)(1)(B); see EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 775.)
We also decline to address the Agencies' contention that the fee awards must be reduced because counsel for EPIC and the Steelworkers duplicated one another's efforts in challenging the SYP. The Steelworkers point out in their responsive brief that this argument was not raised below, and they contend it is forfeited. The Agencies do not address the forfeiture issue in their reply brief, and we may therefore treat the issue as conceded. (See People v. Hightower (1996) 41 Cal.App.4th 1108, 1112, fn. 3 [appellant raised claim in opening brief but failed to reassert it in reply brief; court assumed appellant was persuaded by respondent's argument on the issue].)
E. The Trial Court Must Recalculate the Award of Out-of-Pocket Expenses
The trial court's fee orders granted both EPIC and the Steelworkers "out-of-pocket expenses," which in EPIC's case included expert witness fees. EPIC agrees that the California Supreme Court's opinion in Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142 requires that the award of expenses be modified to deduct the amount representing expert witness fees. ( See Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1218.) The Steelworkers likewise agree that certain expenses awarded to them should be deducted from the award. We leave it to the trial court on remand to recalculate the out-of-pocket expenses to which EPIC and the Steelworkers are entitled.
F. The Trial Court Did Not Abuse Its Discretion in Excluding the Gwire Declaration fn_
The trial court did not abuse its discretion in excluding the declaration of William Gwire, whom the Agencies proffered as an expert on the issue of attorney fees. The trial court sustained respondents' objections to Gwire's declaration and disregarded the document as "pervasively argumentative." The admission of expert testimony is a matter committed to the trial court's discretion. ( Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1168-1169.) We may disturb the trial court's exercise of that discretion only upon a clear showing of abuse. ( Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 986.)
We find no such abuse here, because the Agencies have not contested the validity of respondents' objections to Gwire's declaration. EPIC and the Steelworkers filed detailed statements of objections to Gwire's declaration, and they argued the declaration constituted "an improper supplemental brief which presents legal arguments as `expert opinions,'" contained hearsay, and lacked foundation. The trial court sustained these objections to the declaration, and the Agencies make no argument that it erred in so doing. In the absence of any such argument, we find no abuse of discretion.
IV. Conclusion
We hold that the outcome of the appellate proceedings in this case requires a reevaluation of the attorney fee awards, and we therefore reverse the orders awarding attorney fees and remand for the trial court to exercise its discretion in light of the outcome of the merits appeals. (See Ventas Finance I, LLC v. Franchise Tax Bd. (2008) 165 Cal.App.4th 1207, 1235 [ 81 Cal.Rptr.3d 823].) On the question of respondents' entitlement to a fee award, we conclude that respondents' litigation conferred a significant benefit on the general public or a large class of persons. (§ 1021.5, subd. (a).) We remand to the trial court to determine whether the litigation was necessary, taking into account the question of prelitigation settlement efforts. (§ 1021.5, subd. (b); Vasquez, supra, 45 Cal.4th at pp. 258-259.) If the trial court determines respondents' actions were necessary, then it may calculate appropriate fee awards in accordance with the principles set forth in part III. of this opinion after considering all relevant factors, including respondents' limited success. (See Harman I, supra, 136 Cal.App.4th at pp. 1316-1317.)
Our resolution of these appeals renders the parties' motions for production of additional evidence on appeal and requests for judicial notice moot. They are denied on that basis. The Agencies also make a cursory argument that respondents have already been paid a sufficient fee from Pacific Lumber's bankruptcy case, but because this argument is based on materials for which the Agencies seek judicial notice, we do not consider it. To the extent any of the materials attached to the parties' motions are relevant to the issues to be decided on remand, the parties may request that the trial court consider them.
DISPOSITION
The postjudgment orders awarding attorney fees are reversed, and the matter is remanded with directions that the trial court redetermine whether respondents' actions were necessary within the meaning of section 1021.5 and the amount of any reasonable fee award. The parties shall bear their own costs on appeal.
Jones, P. J., and Needham, J., concurred.