Plaintiff Sought Over $1.4 Million In Fees, With The Fee Award Being $75,961.50, And With A Positive Enhancement Rejected.
Limited success, such as where a defendant voluntarily changes their behavior, may mean that post-change fees are denied under the private attorney general fee-shifting statute, CCP § 1021.5. That is what happened in Save Berkeley’s Neighborhoods v. Regents of University of California, Case No. A169722 (1st Dist., Div. 5 Jan. 24, 2025) (unpublished).
A few months after plaintiff filed a CEQA action, the Regents agreed to provide the primary relief sought through review of the environmental impacts of recent campus enrollment procedures. Plaintiff moved for over $1.4 million in attorney’s fees plus a positive fee enhancement. The lower court awarded $75,961.50 in fees, determining that fees were only appropriate for work occurring before the Regents acceded to the primarily relief requested. No multiplier was appropriate because the issues prior to the notice were not complex, and the risk of non-payment was mitigated because plaintiff’s counsel billed at a reduced rate such that the matter was just a partial contingency case.
The 1/5 DCA affirmed. For one thing, the Legislature mooted much of the after-change work in this case and a companion case which was declared moot by enacting legislation that found enrollment or enrollment changes do not constitute CEQA projects.
Because a lower court may reduce fees where the relief is limited in comparison to the scope of the litigation as a whole (limited success), the “line in the sand” drawn by the lower court was not arbitrary given the subsequent legislative enactments and in light of the Regents voluntarily acceding to relief. With respect to denial of the enhancement, the results were mixed because the Legislature effectively mooted the case, the partial reduced billing/partial contingency reduced the risk of non-payment, and the duty being enforced was not novel. (See Keep Our Mountain Quiet v. County of Santa Clara, 236 Cal.App.4th 714, 741 (2015) [affirming denial of a multiplier where counsel took the case on a partial contingency basis].)
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