Petitioner’s Limited Success – Winning Only 1 Of Its 13 Arguments – Was Crucial Factor In Substantial Reduction From Requested $1,440,713 In Fees To $94,698.33 Even After 1.5 Multiplier Was Applied.
The Sacramento-San Juaquin Delta Reform Act of 2009 was enacted to address the problems and challenges facing the Delta – the most valuable estuary and wetland ecosystem on the west coast of North and South America, and the hub of California’s water delivery system. In enacting the Delta Reform Act, the Legislature created the Delta Stewardship Council and charged it with adopting and implementing the Delta Plan to provide a more reliable water supply for California, and to protect, restore and enhance the Delta ecosystem. The Council adopted the Delta Plan in May 2013, with the regulatory policies approved as regulations by the Office of Administrative Law – codified in the California Code of Regulations at sections 5001-5016 of title 23.
In Delta Stewardship Council Cases, Case Nos. C082944 and C086199 (3d Dist., April 10, 2020) (unpublished), seven lawsuits – coordinated into one proceeding – were filed by various groups challenging the validity of the Delta Plan, its regulations, and the program-level environment impact report (PEIR) for the Delta Plan. The lawsuits were based on alleged violations of the Delta Reform Act, the Administrative Procedures Act (Gov. Code, sections 11340 et seq.), and CEQA. Each lawsuit sought a writ of mandate commanding the Council to vacate and set aside the Delta Plan and its regulations, and to rescind its certification of the PEIR.
With only a few exceptions involving under-regulation by the Council, the trial court rejected the claims of violations of the Delta Reform Act and Administrative Procedures Act. Based on the statutory under-regulation violations, the trial court vacated and set aside the Delta Plan and ordered corrections to the identified deficiencies. As a result, the trial court did not reach the merits of any of the CEQA claims.
Petitioner from one of the seven cases moved post-judgment for Code Civ. Proc. section 1021.5 attorney fees and costs – seeking $1,440,713 in fees, which included a 2.0 lodestar multiplier. Although the trial court found petitioner was entitled to section 1021.5 fees based on its successful argument related to the Delta water conveyance and storage systems, it found that petitioner was not successful on its 12 other arguments, that those unsuccessful 12 arguments were not intertwined with the one successful argument, and that the hourly rate requested by two attorneys was unreasonable. Additionally, the trial court found a 1.5 multiplier to the lodestar more appropriate than the requested 2.0 multiplier – ultimately awarding petitioner $94,698.33.
Petitioner and the Council appealed – with petitioner arguing it was entitled to the full amount of requested fees as it had achieved its litigation objective, and the Council arguing petitioner was not entitled to the 1.5 multiplier because the trial court erred when it failed to articulate a basis for the multiplier.
The Third District affirmed – finding the trial court had not abused its discretion, nor committed reversible error. The 12/13ths reduction to petitioner’s requested award was proper based on petitioner’s limited success, and nothing in the record indicated the trial court did not consider petitioner’s litigation objectives in determining its success. As to the Council’s claim of trial court error, the Third District found not only that the Council had forfeited the argument by failing to object to the tentative decision issued by the trial court, but also that the Council failed to meet its burden in showing reversible error in the decision the trial court made within its “wide discretion.” The tentative ruling indicated the trial court had considered the 2.0 multiplier request based on the contingency basis cited by petitioner, and had reduced it to 1.5 with an acknowledgement that some of the work may not have been done on a contingency basis.
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