VI. Reasonableness of Requested Compensation

UCAN requests $86,073.81 for its described participation in this proceeding, as summarized below:

Description	Year	Rate	Hours Billed	Total Fees
M. Shames	2003-2004	$250	67.6	$16,900
L. Biddle	2003-2004	$185	33	$ 6,105
A. Mansfield	2003	$430	80.25	$34,507.50
A. Mansfield	2004	$450	46.25	$20,812.50
E. Silverman	2003-2004	$375	1713	$ 6,375
UCAN miscellaneous costs				$ 394.00
Mansfield miscellaneous costs				$ 979.81
Total Request				$86,073.81

UCAN submitted logs showing the time and work performed by its attorneys and outside counsel, and for related expenses. UCAN allocated the costs and fees by issues and tasks. All of the time and costs relate to the application for rehearing and pursuing judicial review in the Court of Appeal.

The components of the request must constitute reasonable fees and costs of the customer's preparation for and participation in a proceeding that resulted in a substantial contribution. Thus, only those fees and costs associated with the customer's work that the Commission concludes made a substantial contribution are reasonable and eligible for compensation. In ascertaining what is reasonable compensation for an intervenor, the Commission may reduce an award by taking many variables into consideration, such as the number of hours expended and the hourly rate requested.

A. Reasonableness of Time Spent

In reviewing UCAN's records, we find it was careful to request compensation only for hours spent by its two attorneys, Shames and Biddle, on activities directly related to the rehearing application and subsequent judicial review in the Court of Appeal. We find the time spent by Shames and Biddle to be reasonable.

SDG&E contends that UCAN failed to justify why it used two outside counsel to handle UCAN's appellate work. SDG&E believes that Silverman's fees are unreasonable. UCAN contends that Silverman's "familiarity with court procedure and practice enabled UCAN to narrow the scope of its appeal and to fashion the appeal so that the court could, as it did, address the core issues of the dispute." (UCAN Response, p. 6.)

We reviewed the qualifications and time records of both outside counsel. As a Certified Specialist in appellate law, Silverman has a more specialized knowledge of appellate practices and procedures, including the types of issues that the Court of Appeal is more likely to address. In light of the time spent by Silverman, and the coordination of his effort with UCAN and Mansfield, we find that Silverman's time was reasonable. Accordingly, we find that the hourly billings reasonably support the claim for the total hours spent by UCAN and its outside attorneys regarding the application for rehearing of D.02-12-064 and pursuing judicial review of the two Commission decisions.

B. Market Rates

In determining compensation, we also take into consideration the market rates for similar services from comparably qualified persons.

UCAN's request for compensation includes time billed by its own attorneys, Shames and Lee Biddle. UCAN seeks an hourly rate for work performed in 2003 and 2004 of $250 for Shames and $185 for Biddle. These rates were previously approved in D.04-09-024 and D.04-12-054 and we adopt them here.

UCAN engaged Silverman and Mansfield to obtain judicial review of the described Commission decisions. Mansfield was UCAN's lead counsel, and his work included much of the drafting of UCAN's appellate briefs and arguing before the Court of Appeal. Silverman served in a consulting capacity to Mansfield and UCAN during the judicial review process.

Mansfield is a partner in the firm Rosner, Law & Mansfield, in San Diego. He received his law degree in 1986 and has practiced law for 18 years. His primary practice is consumer litigation, including national consumer class actions and public interest litigation. According to the request for compensation, Mansfield "has been involved in a number of major utility cases, including the PG&E bankruptcy proceeding, and has successfully represented plaintiffs including UCAN in cases involving Verizon, Sprint, Cingular, SBC and the Tenderland Power Company." (January 7, 2005, Request for Compensation, p. 16.)

UCAN is seeking an hourly rate for Mansfield of $430 in 2003 and $450 in 2004,¹⁴ with 80.25 hours claimed in 2003, and 46.25 hours in 2004.¹⁵

Mansfield's declaration states that he has been paid the hourly rate of $430 "for performing consulting services by various clients," and that it "is also the rate I have been paid and that judges have approved as reasonable in numerous cases in California, including through litigated fee motions." (UCAN Request, Att. C.) UCAN points out that in the "Of Counsel" survey, which was discussed in D.04-02-017 at page 14, the average partner billing rate in 2003 was $420.

In D.03-01-070, we approved an hourly rate for Mansfield of $300 for work performed in 2002. In that order, we stated the $300 rate was "said to be substantially lower than [his] $400/hour standard rate," and that the "$300/hour for 2002 is in the range of rates we have awarded to others of comparable background." (D.03-01-070, p. 9.) In this proceeding, UCAN seeks a market rate of $430 for 2003, and a market rate of $450 for 2004.

The issue that we must now address is whether Mansfield's hourly rate should be increased by $130 and $150 for 2003 and 2004, respectively, as compared to the approved 2002 hourly rate of $300. In deciding whether UCAN's request is justified, we must consider the dollar amount of the increases, the amount that Mansfield requests in his declaration, the 2002 hourly rate that we approved for Mansfield, and the escalation factor of 8% for 2004 rates as discussed in Resolution ALJ-184.

As demonstrated by Attachment C of the request for compensation, and our approval of Mansfield's prior work in D.03-01-070, Mansfield has lengthy experience in the representation of consumers, as well as experience in utility issues. However, UCAN's request would result in a 43% and 50% increase in Mansfield's hourly rate as compared to the approved 2002 hourly rate of $300. The percentage increases that UCAN requests are quite significant as compared to the 8% escalation factor that we approved in Resolution ALJ-184 for 2004 rates. Furthermore, Mansfield's hourly rate exceeds the hourly rate for Silverman, who has been practicing law longer than Mansfield. We also note that Mansfield's declaration requests approval of an hourly rate of $395 for his appellate work.

UCAN has not justified its request for an hourly rate of $430 and $450 for Mansfield for 2003 and 2004. Instead, we will adopt as reasonable an hourly rate of $375, as his approved hourly rate for 2003 and 2004.

Since we have adopted a lower hourly rate for Mansfield, this reduces UCAN's total compensation request by $7,882.50.

UCAN is requesting an hourly rate of $375 for Silverman, for work performed in 2003 and 2004. UCAN's request for compensation and Attachment D of the request note that Silverman has been a Certified Specialist in appellate law since 1999. According to UCAN and the time records of Silverman, Silverman assisted Mansfield in the appellate review of the Commission decisions. Silverman has been practicing law in California since 1977, and has been of counsel with the firm of Sandler, Lasry, Laube, Beyer and Valdez in San Diego since 2003. According to UCAN, Silverman's work focuses "almost exclusively on appellate work for a wide variety of clients including the City of San Diego."

UCAN states the requested hourly rate for Silverman "is substantially below the rate the Commission has recently awarded to attorneys with similar amounts of legal experience." (UCAN Request, p. 17.) UCAN points out that in D.04-12-054, the hourly rate of attorneys with similar lengths of experience was $435. Although UCAN acknowledges that Silverman has less experience in Commission proceedings than those who received an hourly rate of $435 in D.04-12-054, Silverman's work focused exclusively on assisting UCAN with the appellate review of the Commission decisions, an area in which he is a Certified Specialist. Given Silverman's expertise and the recent awards of other attorneys, UCAN asserts that the billing rate of $375 is easily justified.

Silverman's certification in appellate law is of unique value to UCAN's appeal of the Commission decisions to the Court of Appeal. His area of specialty, his length of experience, and the hourly rates we have approved for attorneys with comparable training and experience merit compensation at the hourly rate that UCAN is seeking. We find the hourly rate of $375 for Silverman's work in 2003 and 2004 to be reasonable.

C. Productivity

To assist us in determining the reasonableness of the requested compensation, D.98-04-059 directed customers to demonstrate productivity by assigning a reasonable dollar value to the benefits of their participation to ratepayers. The costs of a customer's participation should bear a reasonable relationship to the benefits realized through their participation. This showing assists us in determining the overall reasonableness of the request.

As noted in D.02-12-064 at page 51, D.03-05-013 at pages 10 and 11, D.03-08-072 at pages 9 and 18, and in UCAN v. PUC, supra, 120 Cal.App.4^th at 653, 660, the quantifiable benefits of UCAN's position were over $130 million. Although UCAN's position ultimately was not adopted by the Commission, we find that UCAN's participation was productive, and bears a reasonable relationship to the benefits that ratepayers would have realized as compared to the amount of compensation that UCAN is seeking in this proceeding. As discussed earlier, it is also important to recognize that UCAN's actions resulted in the Court of Appeal's interpretation of a phrase in § 332.1(c). This contribution is significant in that the meaning or interpretation of the Public Utilities Code governs what this Commission does.

D. Direct Expenses

UCAN is seeking reimbursement of its related direct expenses that include photocopying, postage, and telephone charges, and total $394. The direct expenses incurred by UCAN's outside counsel total $979.81, for filing fees, photocopying, and delivery charges. UCAN is not requesting expenses associated with the appeal to the California Supreme Court.

These miscellaneous costs are commensurate with the work performed and we find these costs to be reasonable.