Although Different Judge than “Merits” Judge Heard Fee Motion, Appellate Court Questions Whether More Scrutiny Is Required, But Affirms Even Under A More Rigorous Standard.
Coalition for Adequate Review v. City and County of San Francisco, Case Nos. A135660/A138856 (1st Dist., Div. 2 Nov. 19, 2014) (unpublished) is an interesting case primarily involving the reasonableness of fees, especially the hourly rate found applicable to an attorney getting a good CEQA result but one who was more inexperienced in years and in the land use practice area (although the attorney did spend a lot of time “getting up to speed” on CEQA issues).
Plaintiff’s attorney, around a 7-8 year attorney with not a lot of environmental experience, did get a CEQA win requiring San Francisco to do an additional EIR for additions to a comprehensive bicycle plan which was quite a hit in this Northern California city. In fact, the City agreed to pay private parties, mainly plaintiff’s attorney, over $400,000 in attorney’s fees and costs under the private attorney general statute. However, there was more activity in the trial court with respect to modifying or lifting all or part of the trial court injunction requiring CEQA compliance. The private parties challenging the governmental actions moved for “supplemental” fees of almost $500,000, with the trial court (critically a different judge than the one who did rule on the injunction proceedings, partially lifting one aspect in favor of city) awarding $162,000—reducing plaintiff’s attorney requested hourly rate from $400 to $200 based on her “inexperience” (although lauding her efforts in taking on the city) but also granting a 1.2 multiplier to the awarded lodestar. Then, the lower court awarded the same attorney only $16,000 out of claimed $78,860 for persuading the court to strike a cost bill of about $52,000.
The appeal by the plaintiff, which focused on the fee reasonableness determinations by the lower court, was not successful. (No one argued that fee entitlement under the private attorney general statute was at play, with CCP § 1021.5 justifying the award from an entitlement basis.)
A lot of the appeal focused on the lower court’s reduction of the hourly rate to $200 based on her knowledge/inexperience factor credited by the court below. The appellate court determined that this was no abuse of discretion. Although acknowledging that Center for Biological Diversity v. County of San Bernardino, 188 Cal.App.4th 603, 616 (2010) does suggest that a fee order made by a judge other than the trial judge is subject to stricter scrutiny even under the abuse of discretion standard as to reasonableness of the fee award, the First District, Division 2 seemed to suggest that Center for Biological Diversity was a solo decision that has not been adopted in other California decisions. However, it still found the different trial judge’s decision was not an abuse of discretion even more rigorous analysis, crediting that a lower court can reduce hourly rates based on inexperience and that a fee expert not providing comparative hourly rate analysis for comparable “solos” of a certain experience area can be disregarded/discounted for credibility purposes. As far as reducing some work effort for limited success, that was proper too.
Then, with respect to the costs order, the appellate court really said no problem in the reduction, given that more time was requested than the costs memo at issue. So, the trial court’s reduction was no abuse of discretion, as well as his decision to not award a multiplier—again, a discretionary exercise under the circumstances.
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