CALIFORNIA ATTORNEY'S FEES

Private Attorney General: Medical Marijuana Patient Winning Published Writ Proceeding Entitled To Fee Recovery Against Butte County

 

We Figure That $150,000 Fee Award Was Affirmed On Appeal.

     In Williams v. Butte County, Case No. C066234 (3d Dist. Feb. 8, 2012) (unpublished), plaintiff--a qualified medical marijuana patient--formed a collective of medical marijuana patients but had to destroy a lot of plants when a sheriff ordered them to do so without a warrant. Patient earlier won a significant, published writ proceeding about plaintiff’s right to grow medical marijuana cooperatively. Subsequently, the trial court awarded, if our calculations are correct, about $150,000 in fees, calculated as a lodestar of $500/hour times 147.6 hours, augmented by a two-fold multiplier, under California’s private attorney general statute (CCP § 1021.5).

     County appealed, to no avail. The bottom line was that the writ proceeding was a significant ruling in the medical marijuana area, so County’s “pooh-poohing” did not go very far with the appellate court also having decided the writ decision. County actually argued it should have been awarded attorney’s fees because plaintiff’s suit was groundless under Code of Civil Procedure section 1021.7, a specialized governmental sanctions statute which is the inverse of section 1021.5, but this was rejected because of a key “disconnect”--plaintiff did win the marijuana dispute, County failing to link testimony from an uncorroborated federal felon with other claimed acts. Fee award affirmed.

Private Attorney General/Reasonableness Of Fees: Attorneys Representing Public Interests Entitled To Same Compensation As Private Practicing Attorneys In Community

 

$313,000 Fee Award Affirmed on Appeal.

     Nonprofit interests won a mandate proceeding requiring the City of Redondo Beach to put a local coastal progress amendment to a public vote. Plaintiffs then requested an attorney’s fees award of $354,978.12 under California’s private attorney general statute (CCP § 1021.5), which included a .25 multiplier. City opposed, arguing that the total fees should not exceed $128,729.33. The trial court awarded fees of $313,000, discounting plaintiffs’ pre-court litigation expenses.

     City did not get any further reduction of the fee award on appeal in Building a Better Redondo v. City of Redondo Beach, Case No. B226499 (2d Dist., Div. 8 Jan. 25, 2012) (unpublished).

     After all, the substantiation of the fees was good--attorney declarations and national law journal billing surveys showing that $500-550 partner rates, $200-250 associate rates, and $125 paralegal rates were justified. However, the main premise rejected was that public interest attorneys should be compensated at a lower rate than that for private practitioners in the same community--no way under governing precedent. (Serrano v. Unruh, 32 Cal.3d 621, 642 (1982).)

     BLOG UNDERVIEW--We reported on this Measure G dispute in our November 9, 2010 post when the fee award originally came down. The City decided to appeal way back then. So, here is the result!

Private Attorney General: LaGrone Decision Now Certified For Publication

 

Case Discussed at Our December 19, 2011 Post.

     In our December 19, 2011 post, we discussed LaGrone v. City of Oakland, a First District, Division 3 decision denying LaGrone’s request for attorney’s fees under California’s private attorney general statute--mainly because a change in practices by a governmental entity or cautionary message to it may not necessarily be enough to justify a fee recovery under CCP § 1021.5. We can now report that LaGrone was certified for publication by the appellate court on January 11, 2012.

Private Attorney General Statute: Plaintiff Properly Denied Fee Recovery Where Reversal Of Prior Sanctions Award Had No Causal Connection To Subsequent Governmental Action Relating To Church

 

Scholarly Unpublished Decision Shows Several Elements of CCP § 1021.5 Not Met.

     This one presented an interesting factual situation in which the Fifth District had no difficulty in affirming a lower court’s denial of fees to a plaintiff under California’s private attorney general statute, CCP § 1021.5.

     Sanctuary Merced v. Central Presbyterian Church of Merced, Case No. F060842 (5th Dist. Dec. 28, 2011) (unpublished) involved a plaintiff filing a complaint to enjoin a demolition of a church sanctuary building. Defendants filed a sanctions motion at the pleading stage, arguing the complaint was frivolous. Plaintiff voluntarily dismissed the complaint, but the trial court subsequently issued sanctions in favor of defendants. The appellate court reversed the sanctions order based on an insufficient showing. Then, plaintiff sought to recover prejudgment fees and appellate fees based on the private attorney general statute. The rationale was that plaintiff went before the Merced City Council during the action’s pendency and obtained a designation of the sanctuary as a historical site so that defendants could not demolish the building without CEQA compliance. Defendants opposed based on untimeliness and the lack of merit, with the lower court denying the fees motion.

     The Fifth District sustained the denial, in an unpublished decision authored by Presiding Justice Hill.

     The prejudgment fee request was untimely, filed over a year after the 180 day deadline ticking from the date of the voluntary dismissal. Plaintiff’s reliance on Citizens Against Rent Control v. City of Berkeley, 181 Cal.App.3d 213 (1986), besides being distinguishable, was too antiquated given that this older decision was not decided when the CRC 3.1702 uniform standards for filing fee motions were in force. (Sanabria v. Embrey, 92 Cal.App.4th 422, 429 (2001).) Plaintiff then brought a somewhat creative argument that the fee motion had to be brought later given that a section 1021.5 motion cannot be awarded for a frivolous complaint so that the sanctions appeal had to be determined first. Nice try, said the appellate court, but the sanctions and 1021.5 elements are different, and the earlier appellate reversal did not establish that the complaint had merit, much less restart the time for filing the fee motion.

     However, the appellate fee request was timely--filed within 40 days after issuance of the remittitur in the prior appellate decision. Nevertheless, plaintiff could not gain fees under § 1021.5 based on its “catalyst” theory. Prevailing on a sanctions order did not constitute success for purposes of a private attorney general fee award. It also did not obtain the primary relief sought--it gained no injunction or other demolition restraining relief, with the subsequent actions by Merced being very fortuitous in nature.

     Also, there was a lack of necessary causal connection between the lawsuit and Merced’s actions--after all, defendants did not change their behavior and third-party Merced’s actions were not shown to have been inspired at all by plaintiff’s civil action. Finally, plaintiff failed to demonstrate its action had merit--with the earlier reversal of the sanctions motion being on an evidentiary insufficiency technicality.

Private Attorney General Statute/Section 998: Fifth District Reverses Fee Denial For Ex-Chowchilla Police Chief Winning Prior Published Decision On POBRA Rights

 

Public Interest, Significant Benefit, and Financial Burden Components Are Analyzed in this One; Section 998 Rejected Offer Also Considered.

     An ex-Chowchilla police chief (Mr. Robinson) won a Public Safety Officers Procedural Bill of Rights Act (POBRA) claim against the City, with the trial court later awarding $50,140 on a separate contract claim. Previously, however, Mr. Robinson rejected a $61,592.47 CCP § 998 offer. The Fifth District, in an earlier decision published decision, vindicated Mr. Robinson’s win on the POBRA claim.

     In Robinson v. City of Chowchilla, Case No. F060571 (5th Dist. Dec. 27, 2011) (certified for partial publication; 998 offer discussion not published), the trial court denied Mr. Robinson’s motion for attorney’s fees under the private attorney general statute (CCP § 1021.5) and granted the City’s motion to tax costs based on Mr. Robinson’s rejection of the 998 offer--prompting yet another appeal by Mr. Robinson.

     He won the most significant battle by obtaining a reversal of the fee denial. In must reading for practitioners involved in § 1021.5 fee-shifting contests, the Fifth District concluded that he did enforce an important public interest right in the POBRA area, especially given the prior published decision and the expression of importance of rights in the whole POBRA area. When it came to the significant benefit prong of the private attorney general statute, the appellate court found that the financial interest of Mr. Robinson versus benefit for others was a very nuanced determination--with nothing in governing law dictating that a secondary benefit for others cannot qualify for a fee award even though the primary benefit was for the individual alone. (“Practitioners are cautioned about using the ‘primary effect’ language as a substitute for analyzing the criteria in section 1021.5 separately.”) Conservatorship of Whitley, 50 Cal.4th 1206 (2010) needed to guide the financial burden analysis, with the substantial fees incurred and paid by Mr. Robinson ($232,000) to be considered quite heavily on remand given that the case was going to be redetermined anyway.

     On the 998 issue, nothing showed that the costs denial was incorrect. However, the reversal of the fee denial meant that this redetermination might affect whether Mr. Robinson ultimately recovers down the line, with the issue being put in limbo.

Private Attorney General: Port Of Oakland Engineer’s Reinstatement Via An Administrative Writ Proceeding Vindicated His Personal Interest Only

 

No CCP § 1021.5 Award Was Justified Under the Circumstances.

    A Port of Oakland engineer won an administrative writ proceeding by which he was reinstated with back pay in LaGrone v. City of Oakland, Case Nos. A129306/A130030 (1st Dist., Div. 3 Dec. 16, 2011) (unpublished).  However, his request for attorney’s fees under California’s private attorney general statute was denied by the lower court.  The appellate court found this denial to be no abuse of discretion.  After all, the win vindicated his personal interest versus true public interests, with even a cautionary message conveyance to the City/Port about their conduct or a change in their practices in the future not necessarily being enough to satisfy the “significant public benefit” requirement of Code of Civil Procedure section 1021.5.  (Pacific Legal Foundation v. California Coastal Com., 33 Cal.3d 158, 167 (1982); Flannery v. California Highway Patrol, 61 Cal.App.4th 629, 635-636 (1998).) 

Port of Oakland.  Photographer:  Ingrid Taylar.  Source:  Wikipedia.

Private Attorney General Statute: $336,800 In Fees And $8,400 In Costs Appropriately Awarded Against Orange County In Jaramillo Case

 

Blockbilling Did Not Result in Punishment Based On Unique Case Circumstances.

     Jaramillo v. County of Orange, Case Nos. G043142/G043813 (4th Dist., Div. 3 Nov. 8, 2011) (certified for publication) is likely the last real publicity upshot from Orange County’s appeal of a $183,689 back pay award to former Orange County Assistant Sheriff George Jaramillo and its appeal of an injunction in the wake of the Mike Carona scandal. Aside from the merits relief, the trial court (Judge Andrew P. Banks) awarded Jaramillo’s lawyers $8,400 in costs and $336,800 in fees under California’s private attorney general statute (CCP § 1021.5).

     Orange County’s appeals of the merits/fee awards were unsuccessful, in a 3-0 opinion authored by Acting Presiding Justice Rylaarsdam.

Private Attorney General Statute: Supreme Court Reverses Denial Of Fees To Deposition Reporters, Clarifying Scope of Joshua S. In The Process

 

Public Interest Nature of Litigation Was Evident, Rules High Court.

     For all of you interested in private attorney general statute jurisprudence, the late breaking decision of the California Supreme Court in Serrano v. Stefan Merli Plastering Co., Inc., Case No. S183372 (Cal. Supreme Court Oct. 31, 2011) is must reading.

     Plaintiffs in this case won a prior appeal establishing trial courts have authority to determine reasonableness of fees charged by deposition reporters to nonnoticing parties. The lower court denied a CCP § 1021.5 fees request of $50,000, finding plaintiff deposition reporters acted in their own interest and only incidentally conferred a benefit on other litigants based on Adoption of Joshua S., 42 Cal.4th 945 (2008).

     The Supreme Court reversed, finding plaintiffs’ appeal did involve an important right affecting a public interest. In the process, it clarified and narrowed the applicability of Joshua S., a parental rights case of a much different (and private) nature. Here, the deposition officers were not just private litigants only pursuing private rights, but were parties responsible for the policy or practice that gave right to public interest litigation generating lots of appellate opinions on statutory authority that would not have been vetted but for the verve of the deposition officers here.

POOF!: $260,000 PRIVATE ATTORNEY GENERAL FEES AWARD GOES AWAY WITH PARTIAL REVERSAL OF MANDATE PETITION

 

     The appellate court’s recent decision in Ross v. California Coastal Commission, Case No. B228624 (2d Dist., Div. 5 Oct. 20, 2011) (unpublished) demonstrates our POOF! principle in convincing fashion. There, the appellate court reversed a mandate petition in part which was favorable to plaintiffs. That reversal meant that the $260,000 fees award to plaintiffs under California’s private attorney general statute, too, went POOF! (Gillan v. City of San Marino, 147 Cal.App.4th 1033, 1053 (2007).)

Deadlines/Private Attorney General Statute: Substantial Awards For Successful Appellate Work Affirmed In Long Ongoing Litigation

 

Trial Court Properly Rejected Comparison of Selective Tasks of Opposing Counsel in Gauging Reasonableness of Claimant’s Fee Request.

     Here is an interesting one where years and years of litigation may have come to a close in Vasquez v. State of California, Case No. D056598 (4th Dist., Div. 1 Oct. 19, 2011) (unpublished), resolving in the process some deadline and other issues relating to the lower court’s award of substantial attorney’s fees to the successful plaintiff for appellate work under Code of Civil Procedure section 1021.5.

Private Attorney General: $7 Million In Potential Future Benefits Allows Denial Of Fee Request

 

Water Connection Charge Was Reduced, But Winning Litigant Denied CCP § 1021.5 Fees.

     A home builders group and developer were denied a requested award of $150,000 in section 1021.5 fees even though a Water District substantially reduced a water connection/capacity fee for residential units to be constructed when the economy improves as a result of plaintiffs‘ action.

     The unsuccessful fee-seeking plaintiffs appealed in Home Builders Assn. of No. Cal. v. Sunnyslope County Water District, Case No. H035899 (6th Dist. Oct. 3, 2011) (unpublished).

     They did not prevail on appeal because the record showed that developer potentially saved $7 million in future costs for the charges imposed upon new construction. This was tangible enough of a benefit to keep appellants from satisfying the financial burden element of section 1021.5.

Private Attorney General Statute: $125,000 Fee Award Affirmed In Intervenor’s Favor

 

Both Sides Appeal, One Claiming No Fee Entitlement and the Other Claiming an Enhancement Should Have Been Awarded; Result? Affirmed in Full.

     GH Capital, LLC v. City of Los Angeles, Case No. B221987 (2d Dist., Div. 1 Sept. 26, 2011) (unpublished) is interesting for its facts and its affirmance of a $125,000 fee award under Code of Civil Procedure section 1021.5 to intervenor Brentwood Community Council (BCC).

     The primary dispute revolved around the Hotel Angeleno, a 16-story, circular, high-rise Holiday Inn hotel located in Brentwood, adjacent to the I-405 and Sunset Boulevard. In essence, BCC successfully helped contest a mandate petition to rescind a City directive to demolish an exterior lighting installed by owner, a lighting system that had ultra-powerful brightness that apparently did not fit in with neighborhood residences and businesses. BCC sought $181,900 in fees plus $30,000 in “fees on fees”, as well as a 40% fee enhancement (or, altogether, a requested award of $284,660). The trial court granted BCC a fee award of $125,000 under the private attorney general statute, with no enhancement at all. Both sides appealed the fee award.

     Justice Chaney, in a thoughtful 3-0 opinion for the Second District, Division 1, affirmed the fee award. Certainly, BCC was successful and vindicated an important public interest given the protection of several residential communities and visitors from the brightly lighted hotel. Important public rights are generally at stake in litigation to enforce compliance with planning and zoning laws. (Bowman v. City of Berkeley, 131 Cal.App.4th 173, 176 (2005).) A large class of people were benefited, including the residents of Brentwood and membership of BCC (a community organization in Brentwood representing HOAs, businesses, youth groups, schools, religious groups, volunteer service grounds, multi-family residential dwellers, public safety and environmental organizations). BCC’s victory transcended its own personal interests because its expenses were disproportionate to its goals and the overall total benefits went to the general surrounding community.

     As far as the failure to award a multiplier, the lower court did not abuse its discretion in not allowing an enhancement under the circumstances. No statement of decision was required on the issue, but the trial court did correctly conclude that the fees it awarded did compensate adequately BCC’s counsel for one administrative hearing and 3-4 motion proceedings in court (or, in a bad pun, “inn” court).

American scenery – The Inn on the Roadside.  c1872.  Library of Congress.

Private Attorney General Statute Two-Fer: Lower Court Decisions Granting And Denying Fee Recovery Affirmed

 

Madera Oversight Coalition, Inc. v. County v. Madera, Case No. F059857 (5th Dist. Sept. 14, 2011) (unpublished).

     In this one, which followed on the heels of a published decision affirming and reversing a highly contested CEQA battle, the lower court awarded plaintiffs’ counsel $270,845 and no multiplier out of a requested $460,994.11 (with the request being based on a 1.5 multiplier to a $307,329.41 lodestar), based upon Code of Civil Procedure section 1021.5. Defendants Madera County and developer appealed.

     The Fifth District, in a very thoughtful decision, affirmed and in language that will help plaintiffs seeking private attorney general fees. First, plaintiffs were found “successful” based on their victory on a water supply issue, with the defense arguments conflating considerations on the “public interest enforcement” and “significant benefits” criteria of section 1021.5. Second, CEQA can be the basis to satisfy the “public interest” element, although not all provisions of CEQA create important rights. Here, however, a legally sufficient EIR bore a strong relationship to the achievement of CEQA goals such that it satisfied the element (especially on the sensitive water issue). Third, “significant benefits” were conferred based on the EIR ruling that would lead to a better informed board of supervisors and better informed public. Fourth, the Fifth District had a very interesting discussion of the “necessity and financial burden” element, which is tethered to the analysis of Conservatorship of Whitley, 50 Cal.4th 1206, 1214-1215 (2010). Private enforcement was the only real option, given that the Attorney General did not get involved As far as financial burden was concerned, the Fifth District indicated that the defense made no showing that the methodology was not satisifed and even more critically never rebutted the inference that plaintiffs derived no monetary value from the issuance of the writ and EIR decertification. Also, recovery of attorney’s fees is not among the legally relevant financial benefits that are balanced against the litigation costs, so the defense argument that this should have been considered was rejected.

United Assn. Local Union 246, AFC-CIO v. OSHA, Case No. C065265 (3d Dist. Sept. 16, 2011) (unpublished).

     This case involved a trial court mandate issuance to correct an administrative board decision on improperly including an element as part of a prima facie case for OSHA violations, with the successful union requesting an award of fees under section 1021.5--a request denied by the lower court granting the mandate writ.

     The Third District affirmed. The lower court correctly found that its decision had not conferred a significant benefit on the general public or large class of persons. The decision here was procedural and followed on the heels of a prior Third District decision that was controlling in effect, with the state division never taking a position that would open up examination to other than on a case-by-case basis.

Special Fee Shifting Provision/Attorney General Statute: Apple’s Tax Refund Win Did Not Entitle It To Recovery Of $683,492.73

 

Court of Appeal Affirms Fee Denial Under Special Shifting Provision and Private Attorney General Statute.

     After winning a tax refund issue relating to California tax treatment of repatriated dividends paid by certain of its subsidiaries, Apple, Inc. moved to recover attorney’s fees of $683,492.73 from the State on two independent grounds. The trial court denied the request, a determination affirmed on appeal in Apple, Inc. v. Franchise Tax Bd., Case Nos. A128091/A129090 (1st Dist., Div. 5 Sept. 12, 2011) (certified for publication).

     Apple first grounded fee recovery upon Revenue and Taxation Code section 19717, which does allow a fee award to a “prevailing party” if the State of California’s position in the proceeding was determined to not be substantially justified. That high standard was not met in this one, because no binding authority supported Apple’s position despite the lower court’s eventual determination that it was entitled to a refund.

     The second ground for fee recovery was Code of Civil Procedure section 1021.5, California’s private attorney general statute. However, this provision did not require a different result because the benefit of the case vindicated primarily Apple’s personal economic interests and few tax refund cases will meet the private attorney general fee shifting standards. (Northwest Energetic Services, LLC v. Calif. Franchise Tax Bd., 159 Cal.App.4th 841, 875 (2008).)

Private Attorney General Statute: You Can Get 1021.5 Fees For Administrative Proceeding Work And Personal Stake Alone Does Not Disqualify You

 

Second District, Division 6 Reverses Small Fee Award to Catalyst 1021.5 Winners.

     In an interesting decision arising out of a private owner-church dispute, the Second District, Division 6 again shows us that they are very attuned to fee award issues under Code of Civil Procedure section 1021.5 (California’s private attorney general statute).

     Not surprisingly, Edna Valley Watch v. County of San Luis Obispo, Case No. B223653 (2d Dist., Div. 6 Aug. 2, 2011) (certified for publication) involved an adjacent property owner and nonprofit organization’s fight in successfully blocking a church project in the Edna Valley area of San Luis Obispo for potential CEQA violations, after losing administrative proceedings but prevailing on a writ petition that the lower court found was a catalyst to blocking the project. Owner sought $4,600 in fees, and nonprofit sought $30,424.40 in fees based on prevailing under section 1021.5. The lower court only granted nonprofit about $3,500 in fees, prompting an appeal by the owner and nonprofit.

     They did some vindication on appeal.

     Presiding Justice Gilbert, on behalf of a 3-0 panel, decided that work on administrative proceedings can be subject to fee compensation under section 1021.5, especially because the administrative proceeding in this one was a predicate to obtaining eventual CEQA determinations. Also, the appellate court parted company with a restrictive definition of “action” adopted in Best v. California Apprenticeship Council, 193 Cal.App.3d 1448 (1987), finding that an administrative proceeding can qualify for 1021.5 fee reimbursement. A remand was required to reconsider both owner/nonprofit’s requests given that the lower court denied administrative proceeding fees as a matter of law.

     That brought the appellate court to the lower court’s ruling that owner was disqualified from a fee award because of his personal stake in the matter. Not so, in light of the financial benefit/burden test adopted in Conservatorship of Whitley, 50 Cal.4th 1206 (2010), where nonpecuniary personal stakes cannot be weighed at all and courts must adopt a “market” approach--with the latter meaning that a bounty is appropriate where the monetary award exceeds by a substantial margin the litigation costs expended by the prevailing party.

Private Attorney General Statute: Win On Technical Notice Issue, Not Substantive Merits, Did Not Translate Into Successful Party For CCP § 1021.5 Purposes

 

$115,439.46 Fee Request Rebuffed.

     In Chollas Restoration, Enhancement and Conservancy Community Development Corp. v. City of San Diego, Case No. D057460 (4th Dist., Div. 1 July 14, 2011) (unpublished), plaintiff won a petition, not on substantive grounds, but on the fact that publication was one day short on a draft mitigated negative declaration. Plaintiff then moved to recover $115,439.46 under California’s private attorney general statute, a request denied by the trial court.

     Result affirmed. Denial of fees where plaintiff prevailed only on a technical point about lack of public notice did justify the conclusion that plaintiff was not a “successful party” under CCP § 1021.5. (Stevens v. City of Glendale, 125 Cal.App.3d 986, 1000 (1981).) Nothing indicated that plaintiff’s petition was a catalyst for future action, so no abuse of discretion was shown here on the fee denial.

Lots Of Fee Decisions On Variant Issues Come Out On June 21, 2011

 

Choice of Law--California Law Applies Across the Board If It Is the Governing Choice of Law on Fee Issues.

     In our prior posts of June 11, 2008 and January 21, 2010, we discussed decisions indicating that Civil Code section 1717’s reciprocity principle is a fundamental California interest trumping unilateral fee clauses governed by other state laws that do not allow for reciprocity in California-venued actions. Aronson v. Advanced Cell Technology, Case No. A129336 (1st Dist., Div. 4 June 21, 2011) (certified for publication) contained another twist in this area: a trial court determined that a Massachusetts contractual fees clause that was unilateral had to be interpreted as reciprocal based on Civil Code section 1717 in a California lawsuit suing on the contract involving the Massachusetts fee provision. However, the lower court also determined that the plaintiff’s pre-trial dismissal prevented an award of fees under Santisas, which denies fees in a case where there is a voluntarily dismissal of a claim giving rise to fees under section 1717. On appeal, defendant tried to get an overturn of the fee denial (which involved a $645,542.40 request), but was rebuffed. Defendant discordantly argued that while California law governed the reciprocity impact of the clause, the pre-trial dismissal prevailing party analysis should be governed by Massachusetts law allowing for recovery despite the dismissal. Nope--the same law applies to the variant fee issues. “[O]nce a court concludes that it will apply a California statute to determine whether to award attorney fees, a determination of whether a party is a prevailing party as defined by that same statute is not a separate issue to be analyzed pursuant to Nedlloyd.”

Family Law--Trial Court’s Failure to Rule On Needs-Based Request Was An Abuse of Discretion Where No Complete Absence of Proof.

     A family law judge’s denial of needs-based fees to ex-wife was reversed as an abuse of discretion in In re Marriage of Kostandy, Case No. B225582 (2d Dist., Div. 1 June 21, 2011) (unpublished). The reason for the reversal is that ex-wife had introduced evidence on some of the needs-based factors, with the lower court erroneously indicating there was a complete absence of proof when there wasn’t. On remand, a decision had to be made on the fee request.

Private Attorney General Statute--Refusal to Grant Fee Award to Plaintiff Prevailing in Height Restriction Ordinance Win Overturned on Appeal.

     Plaintiff, in Save Arden-Oaks v. Sacramento County Bd. of Zoning Appeals, Case No. C059387 (3d Dist. June 21, 2011) (unpublished), successfully enforced local zoning ordinances limiting residential building heights for the Arden Oaks area. However, the trial court denied plaintiff any fees under Code of Civil Procedure section 1021.5. This fee denial was reversed by the Third District, ruling in the process that the lower court misanalyzed the public benefit and financial burden elements of California’s private attorney general statute. In short, the zoning height restriction interpretation from the lower court protected the Arden Oaks neighborhood into the future (impacting the entire neighborhood, both present and future residents)--a clear public benefit. Also, plaintiff’s nonpecuniary motives were irrelevant and it did not have to produce precise evidence about the financial burden incurred--meaning the third element was satisfied in this one.

Reasonableness of Fees--Defense Tenacity in Litigating Justified $106,000 Fee Award In $115,000 Promissory Note Collection Action.

     Finally, the Fifth District in Salwasser v. Salwasser, Case No. F060867 (5th Dist. June 21, 2011) (unpublished) reminded us that litigation tenacity is a factor that can be weighed as far as determining the reasonableness of a fee award under Civil Code section 1717. It affirmed a $106,480 fee award (out of a requested $116,445) in a promissory note collection case involving a principal amount of $115,000. The reason? The defense’s litigation tenaciously, driving up the costs, was a factor properly weighted in awarding fees that were almost as much as the amount at stake in the entire controversy. (Peak-Las Positas Partners v. Bollag, 172 Cal.App.4th 101, 114 (2009).)

Private Attorney General Statute: $627,796.74 Fee Award Reversed And Remanded For Facial Lodestar Miscalculation

 

1.5 Multipler Must Be Revisited, But Likely Proper.

     After a bench trial, taxpayers of a closely-held corporation obtained invalidation of a decades-long Board of Equalization practice and obtained tax refunds, with the lower court finding that a public benefit had been provided to other closely-held companies so as to trigger fee entitlement under California’s private attorney general statute (Code Civ. Proc., § 1021.5). As a result, the trial court awarded the winning plaintiffs $627,796.74 in attorney’s fees (out of a 1.8 multiplier requested $1,392,577.40), an award using a 1.5 multiplier.

     Although there was a partial reversal on a standing issue, the fee award was remanded too for recalculation in Parmar v. Board of Equalization, Case No. B215789 (2d Dist., Div. 7 June 14, 2011) (partially published; fee discussion unpublished). However, the Court of Appeal found that there was public benefit aplenty to justify a fee award.

     Presiding Justice Perluss, for a unanimous panel, determined that the lodestar amount had been miscalculated, with the lower court adopting an aggregate lodestar sum from the defense’s fee expert which did not jive with the $450 reasonable hourly rate calculation adopted in fashioning the award. Also, because of the partial reversal, the lower court needed to determine if there was a further need to back out work on successful versus unsuccessful claims. The appellate court found that the 1.5 multiplier was no abuse of discretion, but also remanded that ruling given the overall need for a redetermination of the fee award.

     Here was a more than subtle hint to the litigants found in a concluding footnote: “In light of the trial court’s finding the case achieved significant nonpecuniary objectives, a finding unaffected by our reduction of the amount of compensatory damages awarded, the trial court’s intention to award substantial attorney fees in the case would seem clear. Thus, it appears the parties would do well to resolve their dispute over the amount of fees without an additional evidentiary hearing, which would require further expenditure of attorney fees and resources.” (Slip Opn., p. 23 n. 19.)

Private Attorney General Statute: April 2011 Center For Biological Diversity Decision Now Published

 

Municipal Groups Successfully Lobby Appellate Court to Publish Decision.

     In our April 10, 2011 post, we discussed Center for Biological Diversity v. Cal. Fish and Game Commission, Case No. A127555 (1st Dist., Div. 2 Apr. 8, 2011). The decision involved a $258,800 fee award under California’s private attorney general statute which was reversed based on the Karuk decision that only a procedural remand resulted that did not change the end result for the “prevailing” party such that CCP § 1021.5 elements were not satisfied.

     On May 5, 2011, the appellate court ordered the decision published after initially turning down a publication request by a municipal group. A couple of other groups joined the publication bandwagon such that the decision was then ordered “put on the books.” Goes to show you how lobbying can sometimes get the job done.

Lodestar/Private Attorney General Statute: Negative Multiplier Based On Perception Fee-Owing Government Agency Could Use Money To Fund Ongoing Operations Was No Reason To Reduce Lodestar

 

Second District, Division 8 Believed Financial Factor Could Be Considered Based on Settlement Agreement, But Did Not Beiieve Ongoing Operational “Cut” Rationale Was Justified.

     A redevelopment agency in Rogel v. Lynwood Redevelopment Agency, Case No. B219626 (2d Dist., Div. 8 May 2, 2011) (certified for publication) was exposed to up to $2.7 million in attorneys’ fees requested by plaintiffs prevailing in a public interest suit based upon the private attorney general statute (CCP § 1021.5). However, after the parties settled under an agreement allowing the trial court to consider agency’s financial condition, the lower court cut the $2.7 million lodestar down to $540,000, applying a 0.2 negative multiplier in the process. The reasoning? Agency introduced proof that a fee award in excess of $536,000 would be made at the expense of low and moderate income housing for the City of Lynwood’s residents, with the lower court determining that the money was bettter spent funding ongoing governmental operations rather than paying the prevailing parties in the litigation.

     The appellate court, on review, found this constituted an inappropriate reason to cut the lodestar. Although the settlement agreement allowed consideration of agency’s financial situation, it should not be allowed to override the fact prevailing parties were entitled to a lodestar compensating their attorneys for the market value of their work. “In our view, Serrano III [Serrano v. Priest, 20 Cal.3d 25, 49 (1977)], Horsford [v. Board of Trustees of California State University, 132 Cal.App.4th 359, 400-401 (2005], and Schmid [v. Lovette, 154 Cal.App.3d 466, 476 (1984)] preclude a rule which awards less than the fair market value of attorneys’ fees merely because the case was filed against a government agency. We also see a strong public policy against such a rule. Allowing properly documented attorneys’ fees to be cut simply because a losing party is a governmental entity would defeat the purpose of the private attorney general doctrine codified in Code of Civil Procedure section 1021.5 and would also incentivize governmental entities to negligently or deliberately run up a claimant’s attorneys’ fees, without any concern for consequences.” (Slip Opn., p. 15.) Reversed and remanded for reconsideration of a proper fees award.

Private Attorney General Statute: Based On Partial Success Only, Trial Court Had Discretion To Award Reduced Fees To Prevailing Plaintiff

 

Second District, Division 6 Splits 2-1 In Affirming.

     Plaintiff in San Luis Obispo Coastkeeper v. County of San Luis Obispo, Case No. B224274 (2d Dist., Div. 6 Apr. 26, 2011) (unpublished) prevailed in a CEQA action involving a challenge to the County’s first stormwater pollution prevention ordinance. The trial court issued mandate, but on a technical ground relating to a negative declaration addendum (although not ordering that an EIR be conducted). Plaintiff requested $18,338 in fees, a fee request found reasonable by the lower court. However, because plaintiff only partially prevailed on some claims, the trial court reduced the request and awarded $7,500.

     Plaintiff appealed, producing a 2-1 affirmance by the Second District, Division 6.

     The majority (Justices Coffee and Yegan) agreed that partial success would allow the trial court to not award all requested fees, even if the full request was found reasonable in nature.

     Justice Perren dissented. He found that all the hours were reasonable, and plaintiff had vindicated an important public interest, with the trial court’s explanation of the reduction being deficient in his view.

Private Attorney General Statute: $258,800 Fee Award Goes Up In Smoke (POOF!) Based On Karuk Decision

First District, Division 2 Uses Hunting and Boxing Analogies in Reversing Fee Award.

     The next decision we survey involves a reversal driven by the same apppellate court’s earlier decision in Karuk Tribe of No. Calif. v. Calif. Regional Water Quality Control Bd., 183 Cal.App.4th 330, 364-369 (2010) [discussed in our March 30, 2010 post]. There, the First District, Division 2 reversed a $138,250 fee award under Code of Civil Procedure section 1021.5 (the private attorney general statute) where a remand to an administrative agency for reconsideration based upon a procedural defect did not make the plaintiff a 1021.5 “successful party.” (The procedural defect was to have the agency make further findings on the merits of a supremacy argument, a task that was completed and did not change the bottom line outcome.)

     About a year later, in Center for Biological Diversity v. Cal. Fish and Game Comm’n, Case No. A127555 (1st Dist., Div. 2 Apr. 8, 2011) (unpublished), the same appellate court reversed a 1021.5 fee award of almost $258,800 (out of a request of almost $283,000) in favor of a plaintiff non-profit group that sought mandate to have the American pika, a mammal related to rabbits and hares at risk due to global warming, included on a certain endangered species listing. A lower court granted mandate after the Commission made certain determinations, principally that the Center did not present sufficient evidence to justify the listing. The basis for mandate was the trial court’s perception that the agency may have used an incorrect standard of review in making its determination. On remand, the Commission reiterated its earlier decision after following the mandate directive, still producing the fee award at the lower court level appealed by the State Commission.

      The reversal of the $258,800 fee award was dictated by the reasoning in Karuk. Although the procedural error was different in Center for Biological Diversity, what actually occurred was not materially different in nature. The real thrust of Center’s mandate petition was that it had presented enough evidence to have the pika listed as endangered, but it never got this “bigger game” result. Rather, it only achieved a limited “do-over” that did not result in a listing of the pika. The merits of the petition were avoided by both the Commission and trial court in their rulings. The Center only obtained a procedural clarification of why it lost, much like the petitioner in Karuk.

     However, because this was only an interim battle, the appellate court did not rule out the possibility that Center might be entitled to fees at a later juncture. However, it colorfully did determine that “round one” did not result in substantial benefit to the people of California so as to countenance a 1021.5 fee award to Center at the moment.

Private Attorney General Statute: Plaintiff’s Fee Award Was Not Justified Under “Catalyst Theory” Where Plaintiff Abandoned Case And Never Present Proof On The Merits

 

$22,532 Fee Award Evaporates On Appeal.

     In Borad v. Grossmont Union High School District, Case Nos. D056606/D057142 (4th Dist., Div. 1 Mar. 22, 2011) (unpublished), plaintiff was awarded $22,532 in attorney’s fees under the “catalyst theory” of the private attorney general statute. The lower court apparently believed that plaintiff had obtained his relief (restoration of some sick day leave) before the jury trial began, even though plaintiff abandoned his case after an adverse in limine motion ruling and never put on any proof of the merits of his claims.

     The appellate court did not see the fee award basis the same way, reversing the lower court’s order.

     The abandonment of the case and failure to introduce merits proof were reasons to overturn the award. Under “catalyst theory” cases, mere argument that a case was a catalyst will not do; some evidence must be presented. (Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 575 (2004); Tipton-Whittingham v. City of Los Angeles, 34 Cal.4th 604, 608, 610 (2004).) No proof, no award.

Private Attorney General Statute/Reasonableness Of Fees: 1985 California Attorney General Standards Provide Good Guidance Of Fee ReasonablenessUnder CCP § 1021.5

 

Also Contains Good Guidelines in All Fee Proceedings.

     We would like to thank reader James Wheaton, Esq., president of Environmental Law Foundation, for forwarding an August 23, 1985 memorandum circulated to all attorneys in the Office of the California Attorney General when that position was occupied by John K. Van de Kamp.

     The purpose of the memorandum was to provide some AG policies when it came to handling cases where attorney’s fees were claimed under the private attorney general statute (CCP § 1021.5). Actually, the memorandum has guidelines that are instructive in any fee proceeding. An advisory group to the present AG has recommended that these policies be updated and republished.

     Here are the highlights from the AG policy memorandum:

     *Contemporaneous documentation of hours expended on litigation is a mandatory prerequisite to a fee award, containing entries for each task that specificly identifies what was done (an identification other than block billing);

     *Submission of such contemporaneous records presumptively shows the reasonableness of quantity of hours claimed, unless the Deputy AG can articulate a reasonable factual basis for believing the hours are excessive;

     *A Deputy AG has discretion to engage in discovery and other means to gain a complete understanding in cases where excessive hours might be at play:

     *AG willl not, as a matter of course, require substantiation of the reasonableness of every action taken and every hour spent in a fee request;

     *AG will seek deletion of hours spent on issues where plaintiff did not prevail or the sought fees were completely out of proportion to the success achieved, although it will not challenge fees on “intertwined” issues;

     *The reasonable hourly rate in a fee claim depends on what is the prevailing charge in the community for similar work, with guidance on the standard and documenting the hourly work being obtained from the analysis in National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1324-1327 (D.C.Cir. 1982) (good reading in the overall area of hourly rates, even though an older case);

     *AG will contend that the lodestar is normally a fully compensatory fee under section 1021.5, with multipliers being contested where the lodestar factors adequately provide for compensation;

     *AG will recognize that a multiplier, positive or negative, may be appropriate where authorized by Serrano v. Priest, 20 Cal.3d 25, 48-49 (1977);

     *Because section 1021.5 cases often involve situations where fee payment is delayed, AG will not oppose fee claims which include an interest component for the delay in payment, using the 10% per annum postjudgment interest rate;:

     *AG will oppose fee claims where plaintiff was dilatory in litigating the case, was unreasonable, demonstrated bad faith, or failed to timely submit the fee application;

     *Budgetary limitations on collection of fee awards, due to state fiscal concerns, may be enforced, although the AG will not seek to limit the actual award amount due to these concerns.

     These policies, by the way, seem to mirror the decision-making process we see followed by many trial and appellate courts during the time that we have been blogging.

     Thanks again, Mr. Wheaton.

Private Attorney General Statute: Denial Of § 1021.5 Fee Recovery For Writ Of Mandate Work Reversed And Remanded

Second District, Division 6 Follows Up Wilson Decision With Another Reversal In Unpublished Decision.

     Yesterday, we did a post on Wilson, where the Second District, Division 6 (sitting in Ventura) reversed a portion of a private attorney general fee denial decision, determining that a portion of the work should be compensable. Some of that decision was based on reasoning from Conservatorship of Whitley, 50 Cal.4th 1206, 1211 (2010), which held that a litigant’s personal nonpecuniary interests may not be used to disqualify the litigant from obtaining fees under § 1021.5--utlizing, instead, an analytical focus on the financial burdens and incentives involved in bringing the lawsuit. Whitley, yet again, inspired a partial reversal of a fee denial in the next case.

     That case, Edna Valley Watch v. County of San Luis Obispo, Case No B223653 (2d Dist., Div. 6 Feb. 15, 2011) (unpublished), involved a situation where a lower court denied private attorney general statutory fees of $35,044.50 sought by two plaintiffs successfully squelching a church project (although granting one plaintiff about 10% of requested fees of $30,424.40). The fee denial was affirmed in part and reversed in part.

     The time sought for work on prior administrative hearings was denied because it was only supported by case authority in plaintiffs’ appellate reply brief. Too late, because it deprived the County of any opportunity to respond to the new arguments. (Badie v. Bank of America, 67 Cal.App.4th 799, 784-785 (1999).)

     However, a different situation was presented with respect to time one plaintiff spent on his petition for writ of mandate. The lower court relied on pre-Whitley cases focusing on plaintiff’s personal nonpecuniary interest in litigation, a factor disapproved in Whitley. Because this one plaintiff had both financial as well as nonpecuniary interests in stopping project, the lower court had to reconsider his fees request without regard to his nonpecuniary interests. Matter reversed and remanded, in a 3-0 opinion authored by Presiding Justice Gilbert.

     BLOG OBSERVATION--Looks like the Second District, Division 6 looks closely at private attorney general fee rulings. Just a hint for all of you following our blog.

Private Attorney General Statute: Second District, Division 6 Issues Interesting CCP § 1021.5 Apportionment Decision

Appellate Court Remands Total Fee Denial Decision, Finding One Aspect of Case Meets Standards for Private Attorney General Fee Recovery.

     Wilson v. San Luis Obispo County Democratic Central Comm., Case No. B224269 (2d Dist., Div. 6 Feb. 14, 2011) (certified for publication) is an interesting allocation decision in the private attorney general statute (Code of Civil Procedure section 1021.5) area.

Private Attorney General Statute: Cypress Marina Heights Decision of January 10, 2011 Is Now Published

Sixth District Certifies Decision for Publication.

     In our January 10, 2011 post on Monterey/Santa Cruz Building, etc. v. Cypress Marina Heights, Case No. H034143 (6th Dist. Jan. 10, 2011), we reviewed a decision awarding attorney’s fees under the private attorney general doctrine in a construction prevailing wage ruling for 900 benefitted construction workers. We can now report that the Sixth District, on January 24, 2011, ordered this decision certified for publication.

Private Attorney General Statute: $73,167.50 Worker Prevailing Wage Construction Fee Award Affirmed On Appeal

Sixth District Finds that Construction Prevailing Wage Ruling For 900 Construction Workers Met CCP § 1021.5 Requisites.

     Monterey/Santa Cruz County Bldg. & Constr. Trades Council v. Cypress Marina Heights LP, Case No. H034143 (6th Dist. Jan. 10, 2011) (unpublished) involved a situation where plaintiffs won a proceeding against a defendant which acquired Ford Ord for a development project, with plaintiffs vindicating certain construction workers claiming they should be paid a prevailing wage on the project. The trial court awarded plaintiffs $73,167.50 in attorney’s fees under CCP § 1021.5 (California’s private attorney general statute) out of a requested $212,550 in fees.

     Fee award affirmed. Plaintiffs’ vindication of prevailing wage requirements did vindicate a public interest and revitalized a local economy, with the result benefitting a large class of individuals--900 construction workers. The amount of the fee award was reasonable, given that only 35% of the requested amount was awarded.

  NYC Construction Workers 200 Feet Above Ground.  1907.

Class Actions/Civil Rights/Private Attorney General/Settlements: California Lawyer Article Explores Negotiation Of Attorney’s Fees In Public Agency Cases

 

Concurrent Negotiation of Substantive Relief and Fees in Public Agency Cases Is Allowable.

     Adam W. Hofmann, an attorney in the San Francisco office of Hanson Bridgett, has written an article entitled “Negotiating Attorneys Fees” in the January 2011 edition of The California Lawyer. In it, he explains that California cases expressly reject any blanket prohibition against concurrent negotiation of substantive relief and fees, citing Ramirez v. Sturdevant, 21 Cal.App.4th 904, 919-920 (1994) and applying it to civil rights/private attorney general cases. He does write that many plaintiffs’ counsel appear to split substantive relief and fee negotiations, but suggests that in settlements with public agencies negotiations should proceed concurrently on both these issues. He ends with this paragraph: “And don’t forget: In a case where the court must approve a settlement, a fairness hearing may be the best protection of all, and for all.”

Substantiation Of Fees And Private Attorney General Statute: $1,007,067 Fee Award Gets Scaled Down To $669,525 On Appeal

 

Lack of Supporting Proof For Certain Time Frame Dictates Fee Reduction.

     Defendant won an unusual unreasonable restraint on alienation battle over a buffer zone, leading the trial court to award fees of $1,007,067 under California’s private attorney general statute (Code of Civil Procedure section 1021.5) in Greenlaw Grupe, Jr. Operating Co. v. Land Utilization Alliance, Case Nos. C060939/C063153 (3d Dist. Dec. 29, 2010) (unpublished). Defendant kept his award on appeal, although in a diminished amount. Here is why.

     Defendant’s attorney failed to submit competent fee records for work in 2003 through 2005, introducing instead only cursory invoices with aggregate fee totals rather than a description of the number of hours worked or the legal services performed. The total at issue was $112,514.04, which was awarded by the lower court after applying a triple multiplier (so that $337,542 was involved). Applying Martino v. Denevi, 182 Cal.App.3d 553, 559 (1986), the Third District found that the lack of crucial information about hours worked, billing rates, issues dealt with, and appearances on client’s behalf did not provide any competent basis for a fee award. So, this meant the award had to be reduced down to $669,525, in the case of fee claimant’s failure to provide fee substantiation for certain periods of attorney work.

Year End Wrap-Up: Mike & Marc’s Top 20 Attorney’s Decision Fees Decisions--Part 2 of 2.

     Here is the second installment of our top 20 decisions.

     10. Jankey v. Lee, 181 Cal.App.4th 1173 (1st Dist., Div. 4 2010), review granted, No. S180890 (May 12, 2010) -- authored by Presiding Justice Ruvolo; discussed in our Feb. 6, 2010 post.

     Attorney’s fees are awardable to a prevailing defendant under Civil Code § 55 without the necessity of showing a plaintiff’s action was “frivolous, unreasonable, or groundless,” disagreeing with Ninth Circuit’s Hubbard decision. This has been accepted for review by the California Supreme Court and is not published anymore, but available for reading in the California Reporter or research databases.

     9. Plummer v. Day/Eisenberg, LLP, 184 Cal.App.4th 38 (4th Dist., Div. 3 2010) -- authored by Justice Ikola; discussed in our Apr. 30, 2010 post.

     Contingency fee agreement-driven case with an attorney charging lien is not subject to the disclosure/consent requirements of Fletcher v. Davis, 33 Cal.4th 61, 71-72 (2004).

     8. Conservatorship of Whitley, 50 Cal.4th 1206 (Cal. Sup. Cto. 2010) -- authored by Justice Moreno; discussed in our Dec. 22, 2010 post on Pappas v. Farr (2d Dist., Div. 6 2010) (unpublished).

     Litigant’s personal pecuniary interests may not be used to disqualify the litigant from obtaining fees under California’s private attorney general statute (CCP § 1021.5); rather, the deciding court must focus on the financial burdens and incentives involved in bringing the lawsuit.

     7. PNEC Corp. v. Meyer, 190 Cal.App.4th 66 (4th Dist., Div. 3 2010) -- authored by Justice Ikola; discussed in our Nov. 18, 2010 post.

     Defendant successfully obtaining dismissal of action based on forum non conveniens is a prevailing party under Civil Code section 1717, extending the reasoning from Profits Concepts Mgt., Inc. v. Griffith, 162 Cal.App.4th 950 (2008) (an earlier case determining that a defendant successfully moving to quash service for lack of personal jurisdiction is a prevailing party, authored by Justice Fybel of the 4th Dist., Div. 3).

     6. Lockton v. O’Rourke, 184 Cal.App.4th 1051 (2d Dist., Div. 4 2010) -- authored by Presiding Justice Epstein; discussed in our Apr. 24, 2010 post.

     Contractual clause in retainer agreement allows attorney parties to recover for their efforts in collecting fees against clients, avoiding application of the Trope bar.

     5. In re Mercury Interactive Corp., 618 F.3d 988 (9th Cir. 2010) -- authored by Circuit Judge Tashima (with a dissent by Circuit Judge Bybee); discussed in our Aug. 18, 2010 post.

     Although refusing to articulate a bright-line rule, F.R.Civ. P. 23(h) does not contemplate that class members’ objections to class counsel fee requests have to be filed before the fee motion itself is filed, which denies the class the full and fair opportunity to examine and oppose the motion.

     4. Estate of Manuel, 187 Cal.App.4th 400 (2d Dist., Div. 3 2010) -- authored by Acting Presiding Justice Croskey; discussed in our Aug. 11, 2010 post.

     Costs of proof sanctions for failure to admit requests for admissions under Code of Civil Procedure § 2033.420(a) can only be assessed against a party, not the party’s counsel.

     3. Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC, 185 Cal.App.4th 1050 (4th Dist., Div. 3 2010) -- authored by Justice Moore; discussed in our June 23, 2010 post.

     Expert witness fees awardable under contract clause can be recovered under routine costs memorandum approach, disagreeing with Carwash’s approach that the fees must be pled and proven at trial.

     2. Donahue v. Donahue, 182 Cal.App.4th 259 (4th Dist., Div. 3 2010) -- authored by Justice Aronson; discussed in our Feb. 27, 2010 post.

     Extensive discussion of factors that are probative in gauging the reasonableness of fees requested in probate trust litigation involving multiple attorneys, billings with duplicative entries, litigation inefficiencies, and block billing time entries.

     1. Chavez v. City of Los Angeles, 47 Cal.4th 970 (Cal. Sup. Ct. 2010) -- authored by Justice Kennard; discussed in our Jan. 14, 2010 post.

     Trial courts have discretion to deny or reduce fee requests to winning plaintiffs in FEHA cases where a plaintiff’s success is minimal or there is a grossly inflated fee request.

Private Attorney General Statute: Winning District Supervisor Entitled As A Matter of Law To Award Of Attorney’s Fees

 

Second District, Division 6 Reverses Lower Court Denial of Fees.

     Doreen Farr and Steven Pappas were candidates for the third district supervisor in Santa Barbara County. Ms. Farr was elected, and Mr. Pappas unsuccessfully contested the election pursuant to Elections Code section 16100(d), (f). Ms. Farr made a motion for attorney’s fees in the amount of $250,000 under California’s private attorney general statute, a request that was denied by the trial court.

     The Second District, Division 6, in a 3-0 opinion authored by Presiding Justice Gilbert, reversed the fee denial in Pappas v. Farr, Case No. B219570 (2d Dist., Div. 6 Dec. 21, 2010) (unpublished).

     The appellate court found no valid basis for denying Ms. Farr an award of fees. The primary flaw in the lower court’s reasoning was its reliance on a line of cases holding that in determining whether to award fees under Code of Civil Procedure section 1021.5, the court may consider a litigant’s nonpecuniary interests. Justice Gilbert found that the California Supreme Court in Conservatorship of Whitley, 50 Cal.4th 1206, 1211 (2010) had disapproved this previous authority and concluded that personal nonpecuniary interests may not be used to disqualify a litigant from obtaining 1021.5 fees. Rather, the correct focus is on the financial burdens and incentives involved in bringing the lawsuit.

     Finding that no rational person would have undertaken defense of the action for financial benefit in light of the fact that a supervisor’s salary during 4 years is only slightly greater than $250,000 gross, the Court of Appeal determined that Ms. Farr was entitled to fees--after all, that would mean she would have been working for free even after winning the election contest action.

     The matter was remanded for calculation of the fees to be awarded Ms. Farr.

In The News . . . . Judge Tentatively Awards $125,000 In Attorney’s Fees To Nonprofit Group And Against Caltrans

 

Fee Award for Dispute Involving EIR on Cold Spring Canyon Bridge.

     As reported on December 15, 2010 by the Indy Staff on the Santa Barbara Independent.com, Judge Thomas Anderle tentatively awarded Friends of the Bridge attorney’s fees of $125,000 in a dispute against Caltrans involving deficiencies in a final EIR relating to Cold Spring Canyon Bridge (“suicide” bridge). The fee award was made under California’s private attorney general statute.

Private Attorney General Statute: Appellate Court Affirms Denial Of Attorney’s Fees To Petitioner Winning An Auditing Reallocation of Oakland Measure Y Funds

Neither Private Attorney General or Common Fund Doctrines Justified Fee Award.

      Sacks v. City of Oakland, Case Nos. A126781/A126817 (1st Dist., Div. 1 Dec. 10, 2010) (certified for partial publication; fee discussion not published) involved a petitioner who, at the trial court level, won a mandate writ regarding the allocation and use of tax revenues collected by Oakland pursuant to Measure Y, an ordinance enacted by the voters to add neighborhood beat officers to the police department. The trial court denied her request for attorney’s fees under California’s private attorney general statute (Code Civ. Proc., § 1021.5) and the common fund doctrine. She appealed.

    

Private Attorney General Statute: First District, Division 5 Finds It Can Resolve Significant Benefit Issue Itself But That Other Issues Need To Be Remanded For Resolution

 

$6 Million Fee Award Will Be Reassessed.

      For all of your folks involved in public interest cases, the next decision is a good one to review in the private attorney general fee area.

     Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection, Case Nos. A108410/A108478 (1^st Dist., Div. 5 Nov. 19, 2010) (certified for partial publication) involved a situation where two litigants successfully challenged various lumbering approvals, eventually winning almost a combined $6 million in fees, inclusive of a 2 times multiplier, under California's private attorney general statute (CCP § 1021.5). However, the California Supreme Court took review of the case, affirming and reversing on certain issues. The losing litigants challenged the fee awards, with the Court of Appeal agreeing that the matter had to be remanded to gauge fees in relation to the final outcome of the underlying litigation.

     However, the appellate court did make some interesting calls after that.

Private Attorney General Statute: $60,000 Fee Award To Winning Union Member Successfully Compelling Union To Conduct An Election Affirmed On Appeal

Second District, Division 1 Finds Important Public Right Vindicated Beyond Member’s Own Interests.

     In Burke v. Ipsen, Case Nos. B218286/B221436 (2d Dist., Div. 1 Oct. 29, 2010) (certified for publication), union member successfully obtained mandate compelling a union to conduct an election of officers and directors and to set aside recently amended bylaws of a claimed illegal nature. (Defendant Ipsen was President of the Board of the Association of Deputy District Attorneys).  Union member won, also beating union’s failure to exhaust administrative remedies argument. The trial court awarded member $60,000 in attorney’s fees under the private attorney general statute allowing for fee recovery where an important public right is vindicated. (Code Civ. Proc., § 1021.5.) Union appealed both the merits and the fee award.

     Union lost on both fronts.

     Clearly, fair and reasonable election procedures for public or private bodies implicate an important public right. The relief was significant, directly affecting almost 1,000 actual or potential union members. Union member’s interest in the litigation was no greater than that of other union members who wanted union to comply with the law.

     Union tried to dodge the award by arguing that union member had publicly filed an exhibit with names that violated privacy rights of listed employees. The problem with this counterargument was that union member had been given this list and promptly cured the inadvertent disclosure by sealing the exhibit, with the union indicating that this procedure was acceptable. Fee award affirmed.

     Burke was authored by Presiding Justice Mallano on behalf of a 3-0 panel.

Private Attorney General Statute: Fourth District, Division 1 Reverses Trial Judge’s Refusal To Allow Supplemental Trial Fees To Plaintiffs That Obtained Appellate Success For CEQA Claims

Appellate Panel Also Has Good Things to Say for Appellate Attorneys—Their Work is Specialized and May Command Higher Fee Awards Despite Some Duplication With Trial Work.

     Center for Biological Diversity v. County of San Bernardino, Case No. D056972 (4^th Dist., Div. 2 Sept. 17, 2010) (certified for publication) is an interesting case mainly for appellate attorneys but also for Bar members that win an appeal and then seek to obtain supplemental trial work fees based on the appellate win.

     Boiling down the procedural posture of the case, plaintiffs (environmental groups) brought three claims against County and developer relating to the Blue Ridge project at Lake Arrowhead. Initially, they won a claim but lost two CEQA claims, requesting $191,729.05 in fees but only receiving an initial award of $50,000. All sides appealed, eventually stipulating to dismiss with prejudice their appeals of the initial attorney’s fees order. The appellate court (4^th Dist., Div. 2), on the merits, held the lower court erred by denying the two CEQA claims. On remand after assignment to a new trial judge, plaintiffs moved for a second fee award, primarily trying to recoup (1) attorney’s fees for prevailing on appeal; and (2) supplemental trial work fees based on their greater success on appeal. Plaintiffs sought a total of $563,926.45, broken down this way: (1) $136,230.45 for trial work; (2) $180,324.65 for appellate work; (3) $256,967.10 based on a 2.0 multiplier for the contingent portion of the representation; and (4) $40,405.25 for “fees on fees” in bringing the fee motion (although offsetting $50,000 for the first fee award). The new trial judge awarded nothing more for trial work, determining it lacked jurisdiction in light of the dismissal of the first fee appeal, but did award $62,530 for appellate work—after determining there had been two much duplication of work by appellate attorneys and disallowing out-of-town counsel hourly rates exceeding Inland Empire $370 hourly rates—and $10,000 “fees on fees.” Plaintiffs appealed again, this time going before the Fourth District, Division 1 (a panel to which the appeal was transferred).

     Plaintiffs obtained another reversal and remand in a 27-page Slip Opinion authored by Presiding Justice McConnell on behalf of a 3-0 panel.

     The appellate panel first found that there was nothing wrong with plaintiffs’ efforts to obtain supplemental trial work fees based on the appeal success on two CEQA claims previously denied. Plaintiffs did not have to appeal the first fees award to get supplemental fees given the subsequent appellate win.

     Plaintiffs sought hourly rates between $370-625 for specialized Santa Monica environmental attorneys, but the trial court only allowed $370 Inland Empire attorney hourly rates. The appellate court found this was an abuse of discretion given the contrary proof of reasonableness presented by plaintiffs: (1) a National Law Journal annual survey showing L.A. rates that were in the requested range; (2) declarations showing that the requested rates were in the range of what other courts had awarded in other California venues; and (3) testimony showing qualified environmental representation in the local area was slim (if not nonexistent). The Court of Appeal noted that fee awards do not have to invariably be limited to local rates, depending upon whether there is a reservoir of attorneys in the local area that could prosecute the matter—something not established in this case. (See, e.g., Horsford v. Board of Trustees of Cal. State Univ., 132 Cal.App.4^th 359, 397, 399 (2005).) The appellate panel also rejected that a reduction in hourly rates was necessary just because the Santa Monica firm occasionally entered into fee arrangements with lower hourly rates. (Chacon v. Litke, 181 Cal.App.4^th 1234, 1260 (2010).)

     Then, in a discussion that should make appellate attorneys feel more appreciated, the Center for Biological Diversity court found that trial and appellate work is quite different—such that it was an abuse of discretion to reduce the claimed hours because the appellate attorneys had to duplicate some of the efforts of the trial attorneys. “ . . . trial court preparation and appellate work are not commensurate tasks. As [real party’s] counsel acknowledged at oral argument, preparation of an appellate brief and record is far more complicated than merely ‘repackaging’ the trial court brief.” (Slip Opn., p. 21; see also In re Marriage of Shaban, 88 Cal.App.4^th 398, 408-410 (2001).) Often times, the appellate court observed, duplication by appellate attorneys is necessary duplication, with it being an abuse of discretion to cut 56% of the hours claimed by plaintiffs for appellate work.

     Matter reversed and remanded, which will likely result in a much higher fee award for plaintiffs this time around. (The multiplier issue was left to be reconsidered on remand, but the appellate court did caution against double counting.)

Private Attorney General Statute And Cases Pending: Serrano Case From Second District Accepted for California Supreme Court Review

 

Fee Eligibility for Establishing Precedent on Challenged Practice is Key Issue.

     In Serrano v. Stefan Merli Plastering Co., 184 Cal.App.4^th 178 (2d Dist., Div. 3 Apr. 28, 2010), attorney’s fees were denied to a plaintiff successfully challenging certain court reporting charges and establishing legal precedent in the process.

     On August 18, 2010, the California Supreme Court granted review in the case, framing the issue this way:

“Is plaintiff eligible for an award of attorney fees under the private attorney general doctrine based on a successful challenge to court reporter’s service charges that established legal precedent?”

     Stay tuned for a future post on the state supreme court’s decision in this substantive area of fee jurisprudence.

Above:  Alexander H. Taft, official court reporter at the Court Martial Trial of Brigadier General Billy Mitchell.   1925.  Library of Congress.

Private Attorney General Statute: Second District, Division 3 Affirms Denial Of CCP § 1021.5 Fees To Litigant Where It Alone Benefited

Also, Fee Expenditure Was Not Disproportionate to Claimed Damages.

     We have another case to add to our category “Private Attorney General Statute.” Here, the lack of benefit to a larger class of persons and failure to show disproportionate fee expenditures meant that fees were properly not awarded under Code of Civil Procedure section 1021.5.

     In New West Charter Middle School v. L.A. Unified School Dist., Case No. B215777 (2d Dist., Div. 3 Aug. 19, 2010) (certified for publication), New West obtained writ relief requiring LAUSD to provide facilities to charter school in-district students on an equivalent basis, but only with respect to New West and LAUSD’s withdrawal of a specific offer for co-location to Fairfax High School. New West was awarded $175,630.32 in damages following writ noncompliance. However, the trial judge denied New West requested fees of $226,000 under the private attorney general statute, primarily on the basis that New West’s victory did not provide significant benefit to a large class of individuals.

     New West’s appeal of the fee denial did not result in any change.

     The fee denial was affirmed, whether a de novo or abuse of discretion standard was used, because the benefit below was to New West alone. According to the appellate panel, this was not a “test case” on the school district’s obligations to in-district students. Beyond that, the financial burden of the litigation was not disproportionate, given the comparison between fees of $226,000 to New West’s claim seeking $1 million in actual damages. (This conclusion may have been driven by the appellate court’s observation, in a footnote, that New West did not incur any fees because its counsel’s prosecution of the case was undertaken under a contingency agreement.)

Private Attorney General Statute: Sixth District Issues Scholarly Unpublished Decision Analyzing CCP Section 1021.5 Factors

 

Affirms $175,000 Fee Award Assessed Against City and Developer Jointly.

     Court House Plaza Co. v. City of Palo Alto, Case Nos. H032872/H033204 (6^th Dist. June 30, 2010) (unpublished) is a gem of a decision for anyone dealing with a fee award under California’s private attorney general statute, Code of Civil Procedure section 1021.5. 

     There, plaintiffs obtained a writ of mandate ordering city and developer to comply with environmental laws applicable to proposed projects, finding a CEQA violation in revising a mitigated negative declaration without recirculation for public review. The lower court also rejected other claims and decided injunctive relief was moot in light of the CEQA claim ruling. Later, the trial judge awarded plaintiffs $175,000 out of a requested $246,442.50 in fees under section 1021.5, awarded jointly against city and developer—both of which appealed.