Plaintiff’s Attorneys, Who Bore The Risk Of Taking On A Partially Contingent Case With Important Public Interests At Stake, Displayed Exceptional Expertise and Skill In A Case Involving Nearly Five Years Of Contentious Litigation And A 19-Day Trial.
Following a 19-day bench trial in The Sonoma Land Trust v. Thompson, Case No. A159139 (1st Dist., Div. 5 April 30, 2021) (published), defendant property owners and their non-party corporation were found jointly and severally liable for violations of a conservation easement – with plaintiff nonprofit easement holder being awarded $575,899 in monetary damages, which included $318,870 for the costs of restoring the property, and injunctive relief (results affirmed in a previous appeal). Additionally, the trial court awarded plaintiff with attorney fees and costs of $2,961,264.29, inclusive of a 1.4 multiplier, under Civ. Code § 815.7(d), Code Civ. Proc. § 1021.5, and the conservation easement itself.
Defendants appealed, but the 1/5 DCA affirmed.
Contrary to defendants’ contention, the trial court was not required to deduct the initial $500,000 in fees paid by plaintiff’s insurance policy as trial courts may award fees regardless of who paid the fees, and plaintiff did not receive a double recovery as, pursuant to its insurance policy, it had to reimburse its insurer from any damage award. Additionally, pursuant to the easement, plaintiff was entitled to its fees as the prevailing party – whether or not it actually paid the fees.
The panel also was not persuaded by defendants’ vague arguments that plaintiff’s attorneys were inefficient and over-litigated an easy case – especially given that the litigation was contentious, dragged on for nearly five years, involved a 19-day trial, and plaintiff’s counsel had reduced its request by more than 10 percent to account for duplications and inefficiencies.
As to the multiplier, there was no abuse of discretion. The contingent risk plaintiff’s attorneys faced was not eliminated by the initial insurance payment – it was merely mitigated. The trial court reduced plaintiff’s requested multiplier from 1.6 to 1.4 after properly considering that plaintiff’s attorneys received some fees upfront, then proceeded on a “fully contingent basis . . . due to the important public interests at stake.”
Finally, defendants argued that the trial court improperly used the skill level of plaintiff’s attorneys and the novelty and difficulty of the case to justify the lodestar and the multiplier – resulting in double counting. Not so, said the panel. Based on the exceptionally high levels of skill and expertise displayed by plaintiff’s counsel – that was not fully factored in to the lodestar – the trial court could have reasonably set a higher hourly lodestar rate. However, the lower lodestar allowed the trial court more room for a multiplier to provide fair compensation for plaintiff’s attorneys – with the panel noting that the contingent risk factor alone justified the multiplier.
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