Plaintiff’s Work In First Action – Dismissed On The Grounds Of Mootness – Was Necessary To Establish Fee Claim At Trial And On Appeal After Win Of Essentially Identical Second Action
In Point San Pedro Road Coalition v. County of Marin, Case No. A152144 (1st Dist., Div. 3 March 6, 2019), Defendant County and Real Party in Interest (a rock Quarry) jointly appealed a lower court’s order awarding Plaintiff with $368,959 in attorney fees.
Plaintiff had filed two, separate petitions against County to challenge an amendment County approved to Quarry’s mining permit – allowing Quarry to import asphalt grindings onto its site for use in the production of asphaltic concrete – and County’s later extension of the amendment. Plaintiff’s contention was that the amendment (and extension thereof) allowed for an impermissible expansion of Quarry’s nonconforming use in violation of the County zoning ordinance.
With regard to its first petition to challenge the initial amendment, Plaintiff had participated in administrative proceedings, but had not filed an appeal with the California State Mining and Geology Board. Defendant moved for judgment on the pleadings on this basis, alleging that Plaintiff failed to exhaust its administrative remedies before seeking judicial relief. The trial court agreed and dismissed the petition. Plaintiff appealed.
During appeal of Plaintiff’s first action, County granted Quarry an extension of the amendment. In opposition, Plaintiff pursued its administrative remedies – including an appeal with the California State Mining and Geology Board – before seeking judicial relief in its successful second petition. About two months after the trial court granted Plaintiff’s second petition and directed County to vacate the amendment extension, the 1/3 DCA reversed the trial court’s order on Plaintiff’s first action – remanding the matter to the trial court with instructions to dismiss on the grounds of mootness.
Plaintiff then sought an aggregate award of $658,805 in attorney fees, for the work performed in both actions ($335,260 for the first action, and $191,784 for the second, plus multipliers for each), under Code Civ. Proc. section 1021.5 (which allows award of attorney fees to successful party in action which results in the enforcement of an important right affecting public interest). The trial court awarded attorney fees in the aggregate sum of $368,959 ($115,151.50 for the first action, $192,314 for the second (which included an additional $530 for one hour of oral argument), and a multiplier of 1.2 applied to both sums) – explaining that the legal work associated in the first action “was closely related to the second action and was useful to the resolution of the second action.” Defendant and Quarry appealed.
The 1/3 DCA affirmed – relying on Serrano v. Unruh (1982) 32 Cal.3d 621 – concluding that fees were recoverable under section 1021.5 for the first action as necessary in establishing Plaintiff’s claim in the second action.
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