03AS00193

Civic Partners Stockton, LLC vs. The City of Stockton

Nature of Proceeding: Motion for Contractual Attorney Fees

Filed By: Morlan, Michael N.

Defendants City of Stockton and the City of Stockton as Successor to the Redevelopment Agency of the City of Stockton’s (“City”) Motion for Attorney Fees incurred on appeal and on this motion is unopposed and is granted.

Defendants are awarded fees in the total amount of $129,106, which includes fees incurred on appeal and for this motion.

Defendants’ Request for Judicial Notice is granted.

The instant motion seeks an award of the City’s attorney’s fees incurred on the most recent appeal. The Remittitur to the Trial Court Clerk issued on May 29, 2018. This motion for contractual attorney’s fees is timely under California Rules of Court, rule

3.1702(c)(1), which provides that a motion to claim contractual attorney fees on appeal must be served and filed within the time for serving and filing the memorandum of costs under Rule 8.278(c)(1) in unlimited civil cases, i.e., within 40 days after issuance of the remittitur.

This is City’s second motion for attorney’s fees in this litigation. This Court granted City’s first motion for attorney’s fees by Order dated August 31, 2011, awarding $1,263,361.98 in fees and costs. Plaintiff Civic Partners Stockton, LLC (“Civic”) appealed both the Order awarding attorney’s fees and the underlying Judgment. That appeal resulted in an Unpublished Opinion issued on March 2, 2018. (Civic Partners Stockton, LLC v. City of Stockton, etal., 2018 Cal. App. Unpub. LEXIS

16 1412.) The Court of Appeal affirmed the underlying Judgment and this Court’s

Order awarding contractual attorney’s fees. Civic’s Petition for Rehearing in the Court of Appeal was denied by order issued on March 21, 2018.

In the most recent appeal City achieved a “simple, unqualified win,” warranting an award of reasonable attorney’s fees in the requested amount. The fees were incurred on appeal from the time the Appeal was filed in 2011 until the remittitur was issued May 29, 2018.

Both the City’s first motion for contractual attorney fees and this motion for attorney fees are based on the “prevailing” party provisions in the underlying contracts. The Hotel DDA and Cinema DDA provide: “In the event any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a result of any breach thereof, the party prevailing in any such action shall be entitled to recover against the party not prevailing all reasonable attorney’s fees and costs incurred in such action.” (Ex. A [Complaint] and its Ex. A(1) [Hotel DDA], § 10.14, p, 36; Ex. A and its Ex. A(2) [Cinema DDA], § 10.12, p. 45.)

The Office Lease provides: “In the event of any legal action or proceeding brought by either party against the other arising from or based on the Lease … , the prevailing party shall be entitled to recover from the non-prevailing party or parties its reasonable fees and costs and disbursements incurred by such prevailing party and by its attorneys in such action or proceeding, including fees and costs of appeal, if any.” (Ex. A and its Ex. A(3) [Office Lease], § 10.13, p. 24.)

Civil Code section 1717 provides that “[r]easonable attorney’s fees shall be fixed by the court.” The attorney-fees reasonableness standard for appellate court work is the same as the standard for trial court work. (See Jones v. Union Bank of California (2005) 127 Cal. App.4th 542, 549-550.) The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group V. Drexler (2000) 22 Cal.4th 1084, 1095.) “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court…. 10
[Citations.]” (Id. at p. 1096 [internal citations omitted].)

City’s fees are well documented. Its appellate counsel, the Freeman Firm (the “Firm”), has provided a detailed list of charges billed to City during the lengthy course of the appeal (with certain privileged informafion redacted). (Discussed in Keeling Decl., para. 14, and Ex. S). The hourly rate charged of $325 is below market rated for the experience of the attorneys involved. California appellate courts have held that an attorney’s billing rates are reasonable if they are “within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work.” ( Children’s Hospital and Medical Center v. Bonta (2002) 97 Cal. App.4th 740,22 783.)

In general, courts use a “lodestar:’ approach to calculating attorney fee awards, determined by multiplying the reasonable hours spent on the matter by the reasonable hourly rate. (PLCM, supra, at 1095.) The court may adjust the lodestar amount by applying a positive or negative multiplier based on a variety of factors, including the quality of the representation, the novelty and difficulty of the issues presented, the results obtained, and the risk involved. Despite the presence of many of the factors here, City is not requesting an enhancement of the lodestar despite the complexity of the issue involved in the appeal.

The Court finds that the number of hours spent, 365, is supported by the lengthy and

detailed time records that cover a span of seven years and is reasonable for the nature and complexity of the appeal. The amount of hours spent on this motion, approximately 30, is also reasonable. Absent “circumstances rendering the award unjust, an [attorney fee] award should ordinarily include compensation for all the hours reasonably spent.” (Ketchum, supra, at p. 1133; emphasis in original.) It is well established that time reasonably spent on litigation work such as the preparation of pleadings, motions on the pleadings, case investigation and case management is compensable, if it is the type and amount of work that would be billed to a fee-paying client. (See Hensley v. Eckerhart (1983) 461 U.S. 424, 434.) In the context of appellate work, the pertinent tasks obviously include

briefs on the merits, appellate motions, preparation for oral argument, oral argument itself, if any, in connection with motions for rehearing and petitions for review in the Supreme Court. Settlement efforts during the pendency of an appeal, which are encouraged as a matter of judicial and public policy, may also require work by appellate counsel. Other factors to consider include, without

limitation, the complexity of the issues involved, the length and difficulty of the litigation, the aggressiveness of opposing counsel, and the results obtained. (Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, 114; Bernardi v. County of Monterey (2008 167 Cal.App.4th 1379, 1395.)

The fees in this case are also reasonable in light of the novel legal issues at stake, the tenacity of Appellant’s counsel, and the very successful result obtained. The number of hours devoted to representing City in the appeal was not unusually high, given the legal complexity of the issues involved, the protracted history of this

litigation, the need to prepare a Respondent’s Appendix to address deficiencies in Civic’s Appellant’s Appendix, the amounts at issue in this litigation, Civic’s tenacity and creativity in developing new issues, and the multiple briefs that the appeal required. Furthermore, the Firm employed sound billing judgment in reviewing all charges, and, in reducing its charges on those few occasions, which

can arise in a lengthy appeal, when it appeared to the Firm that a reduction in fees for a particular activity was appropriate.