How to Calculate Brandt Fees ?
In Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, the court explained the proper method for calculating Brandt fees in a contingent fee action, such as the instant action.
"This method requires the trier of fact to determine the percentage of the legal fees paid to the attorney that reflects the work attributable to obtaining the contract recovery. To determine the percentage of the legal fees attributable to the contract recovery, the trial court should determine the total number of hours an attorney spent on the case and then determine how many hours were spent working exclusively on the contract recovery. Hours spent working on issues jointly related to both the tort and contract should be apportioned, with some hours assigned to the contract and some to the tort. This latter figure, added to the hours spent on the contract alone, when divided by the total number of hours worked, should provide the appropriate percentage." (Cassim, supra, 33 Cal.4th at pp. 811-812.)
Cassim gives an example using compensatory damages of $3,594,000 and a 40 percent contingency fee contract, for a fee of $1,437,600 on compensatory damages.
Cassim explains that if the attorney spent 1,500 hours on the case, and could prove a breakdown of 200 hours on issues related solely to the contract, 500 hours on issues relevant to both the contract and the tort, and 800 hours on issues related solely to the tort, the "trial court could reasonably conclude that half the hours spent on the joint contract/tort issues are fairly attributable to the contract (i.e., half of 500 hours, or 250 hours), and thus 30 percent of the hours worked (200 hours plus 250 hours, divided by 1,500 total hours) is attributable to the contract recovery. Thirty percent of the total legal fee (30 percent of $1,437,600) is $431,280. This is the amount a trial court should award as Brandt fees in this hypothetical situation." (Cassim, supra, 33 Cal.4th at p. 812.)
Cassim also explains that in either an hourly fee case or a contingency fee case, the amount of fees attributable to an attorney's efforts to obtain policy benefits "could conceivably exceed those benefits entirely." (Cassim, supra, 33 Cal.4th at p. 809.)
This is because "a client paying his or her lawyer an hourly fee may choose to pay more than 40 percent (or even more than 100 percent) of an anticipated contract recovery in order to obtain that recovery. The same is true for a client operating under a contingent fee agreement. Certainly nothing in Brandt limits the amount of fees awarded as damages to a percentage of the contract benefits." (Cassim, supra, at p. 809.)
"As in any tort case, the plaintiff bears the burden of proving by a preponderance of the evidence both the existence and the amount of damages proximately caused by the defendant's tortious acts or omissions." (Cassim, supra, 33 Cal.4th at p. 813.) The court's ruling on Brandt fees is subject to an abuse of discretion standard of review. (Cassim, supra, at p. 805.) Under this standard, "we have no authority to substitute our own decision for that of the trial court," and "our inquiry is limited to determining whether the trial court's decision exceeds the bounds of reason." (American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 269.)