Private Attorney General: Where Petitioner Had Limited Success And Lost Its Primary Litigation Objectives In CEQA Action, Lower Court Did Not Err In Reducing Requested Fees By About 90% And Denying A Positive Multiplier Request For One Firm’s Work

$37,346.30 Was The Fee Award From The $225,683 Lodestar Request Plus 1.5 Multiplier For One Component Of The Fee Request.

            Limited success and excessive fee requests, even in a CEQA context, confer considerable discretion on a lower court to fashion an appropriate fee award under California’s private attorney general statute.  These factors led to about a 90% reduction of a partially prevailing petitioner’s fee request in Friends of Muir Woods Park v. The County of Marin, Case No. A166427 (1^st Dist., Div. 5 Sept. 20, 2022) (unpublished).

            There, Marin County approved real party in interest’s 3-lot subdivision plan by adopting a mitigated negative declaration, with petitioner challenging that action under CEQA and the Subdivision Map Act.  Petitioner mainly wanted an EIR to be conducted and wanted reassessment of the project for 12 homes that potentially could be built on the sites rather than the two new homes which were approved, as well as raised several other excavation/fill, environmental, human safety, local plan, and Subdivision Map Act violation issues.  The lower court granted and denied, in part, the petition, finding that the county had not violated the Map Act, that County’s initial study had failed to satisfy CEQA’s informational requirements with respect to three discrete issues, that the county was not required to conduct an EIR, that there was no substantial evidence of potential environmental impacts, and that the county was not obligated to analyze the impacts of a 12-house project.  The writ did not direct the county to exercise its discretion in any way and did not direct the preparation of an EIR.

            Petitioner moved to recover CCP § 1021.5 lodestar of fees of $225,683 plus a positive 1.5 multiplier on a $39,889 component of the request.  The lower court, based principally on petitioner’s limited success and excessive work, awarded $37,346.30, consisting of $16,420 for some “fees on fees” and $20,926.30 (10% of the remaining lodestar request after backing out the fees on fees).  Obviously unhappy, petitioner appealed.

            The 1/5 DCA affirmed.  Although the general rule is that fee awards should be fully compensatory, the appellate court agreed that the lower court properly reduced the fee request for limited success and uninflated billings.  Even where a plaintiff’s successful and unsuccessful CEQA claims are interrelated, a trial judge may reduce the fees if the plaintiff achieves only minimal success (Save Our Uniquely Rural Community Environment v. County of San Bernardino, 235 Cal.App.4^th 1179, 1185-1186 (2015)), which was appropriate here given that petitioner did not achieve its main objectives of getting an EIR mandated or getting the project analyzed under the 12-house scenario.  Further, the use of a substantial negative multiplier is warranted where the appellate record demonstrated the plaintiff attorneys inflated their billings in an uncomplicated CEQA case and succeeded on only one out of 10 arguments (SOURCE, 235 Cal.App.4^th at 1182-1187, 1189-1190), with time spent on administrative record, legal research, and other work in this case properly found excessive by the lower court under an abuse of discretion standard.  Denial of the positive multiplier request was not erroneous because the factors justifying a multiplier were built into the trial court’s lodestar calculation, such that a “double dip” was inappropriate.