Costs, Private Attorney General, Reasonableness Of Fees: Petitioners, In Long-Standing San Francisco Bicycle Plan CEQA Challenges, Who Achieved Limited Success, Had Costs Properly Stricken And Recovered 50% Less Than Requested Once The Lodestar Was Reduc

Bottom Line In This Case, Limited Success Will Impact Cost and Fee Recovery, Even In Public Interest Cases.

            We have seen that costs and attorney’s fees in many public interest cases, including those under the private attorney general statute, can be quite large.  However, one should keep in mind that the cost and fee requests can be slashed or denied quite a bit if the plaintiffs/petitioners only obtain limited success.  Anderson v. City & County of San Francisco, Case Nos. A143974 et al. (1^st Dist., Div. 2 Dec. 30, 2020) (unpublished) is a case on point.

            There, petitioners—in a long-standing case generating a prior appeal with limited success—did successfully challenge San Francisco’s Bicycle Plan for CEQA review.  But the victory basically was Pyrrhic in nature.  So, the final strokes for petitioners happened to be what costs and fees they could recoup.

            The trial judge struck $1,813 in costs claimed against City and only granted petitioners $153,346 in attorney’s fees under CCP § 1021.5 out of a requested $500,000 lodestar (plus another 1.5 positive multiplier request).  All of those reductions stayed intact on appeal.

            With respect to costs, petitioners obtained no monetary relief such that the other relief was put in directly in a discretionary determination by the lower court.  The lower court denied costs based on limited success, a determination affirmed under the deferential abuse of discretion standard.  (East Bay Mun. Utility Dist. v. Dept. of Forestry & Fire Protection, 43 Cal.App.4^th 1113, 1131-1134 (1996).)

            That brought the appellate court to the fee award.  After the lodestar reductions for hourly rates, a 50% reduction for limited success by the trial judge—supported by numerous cases allowing for a deduction based on this factor—was affirmed as no abuse of discretion.

            Here are the decisions cited by the 1/2 DCA as supporting this conclusion.  (See e.g., Save Our Uniquely Rural Community Environment v. County of San Bernardino, 235 Cal.App.4th 1179, 1185 (2015) [request for $221,198; award of $19,176]; Bowman v. City of Berkeley, 131 Cal.App.4th 173, 176 (2005) [$96,592 attorney fees billed; $89,696 paid; $17,314 awarded]; San Diego Police Officers Assn. v. San Diego Police Department, 76 Cal.App.4th 19, 24 (1999); Californians for Responsible Toxics Management v. Kizer, 211 Cal.App.3d 961, 974–975 (1989) [65 percent reduction].)

            BLOG COMMENT—This likely will be our last post for 2020.  Happy New Year, readers!