Case Number: BS145275 Hearing Date: July 21, 2016 Dept: SEG

# BS145275
TENTATIVE ORDER

Petitioner Friends of Highland Park’s motion for award of reasonable attorneys’ fees is GRANTED in part and DENIED in part, as more fully expressed below.

Petitioner Friends of Highland Park (“Petitioner”) moves for attorneys’ fees per CCP 1021.5 for $173,430.50, and a 1.5 multiplier, totaling $246,994.25.

ATTORNEYS’ FEES:

Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. (CCP 1021.5.)

Petitioner contends that its action confers a significant benefit to the general public because City’s MND was set aside.

Relying on Concerned Citizen of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329 (“Concerned Citizen”), Respondents City of Los Angeles and Real Party-in-Interest HPTV Apartments, L.P. (collectively, “Respondents”) contend that the benefit conferred is not “significant” since only the MND needs to be revised, and there was no order that an EIR be prepared. However, like Save Our Uniquely Rural Community v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1184 (“SOURCE”), the very authority relied upon by Respondents, recovery of attorney’s fees was proper where an MND was found to be deficient.

In Concerned Citizen, the defective MND relating to “cut-through traffic” was considered a “minute blemish,” “the correction of which was not likely to change the project.” (Concerned Citizen of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 333.) Here, there is no evidence in the record that demonstrates that the Project would not change if the MND’s findings regarding Greenhouse Gas Emissions and Lead Contamination were corrected. City Planner Christina Lee does not address the “reduction in VOCs” (Appeal, p. 22) as an effective mitigation measure, nor does she address any mitigation measures for “lead contamination.” Instead, she states that the Department “will review the Phase II study,” and will determine what “mitigation conditions, if any should be imposed.” (Lee Decl., Par. 10.) Such evidence is speculative, and does not demonstrate that the Project will likely not change.

Accordingly, the court finds that Petitioner has demonstrated that its successful writ would confer a significant benefit to the general public in that it requires Respondents to properly document the Project’s GHG emissions and lead contamination impacts.

Further, Petitioner has demonstrated that the necessity and financial burden of private enforcement are such as to make the award appropriate. Respondents contend that Petitioner has not established that the cost of litigation transcended the personal interests of Petitioner’s members. However, the Verified Petition alleges that Petitioner’s members are persons interested in cultural preservation and the environment. (Verified Petition, Par. 4.)

Finally, the remedies in this case were a writ of mandate and an injunction. There was no monetary recovery, so attorney’s fees cannot be paid out of the recovery.

Petitioner has therefore met the requirements for an award of attorney’s fees pursuant to CCP 1021.5.

REASONABLENESS:

To enable the trial court to determine whether attorney fees should be awarded and in what amount, an attorney should present: (1) evidence, documentary and oral, of the services actually performed; and (2) expert opinion, by the applicant and other lawyers, as to what would be a reasonable fee for such services. (Martino v. Denevi (1986) 182 Cal. App. 3d 553, 558-59.) In many cases, however, the trial court will be aware of the nature and extent of the attorney’s services from its observation of the trial proceedings and the pretrial and discovery proceedings reflected in the file. (Id. at 559.)

In California, testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records. (Id.) If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred by the prevailing party, then the burden shifts to the opposing party to show that the items are unreasonable. (Decoto Sch. Dist. of Alameda County v. M & S Tile Co. (1964) 225 Cal. App. 2d 310, 316-17.)

Here, Petitioner seeks attorneys fees totaling $173,430.50, and an additional 1.5 multiplier, bringing the grand total to $246,994.25.

The court finds counsels’ lowest hourly rate of $300 is reasonable. However, the fees requested are excessive.

In SOURCE, the appellate court affirmed the trial court’s reduction of fees based on Petitioner’s minimal success, which only included the setting aside of the MND despite Petitioner’s additional request to have an EIR prepared. Similarly, here, even though Petitioner requested that an EIR be prepared, the only remedy that it got was the setting aside of the MND. Further, Petitioner did not succeed in getting the tract map and parcel maps set aside.

This Court finds that Petitioner is not entitled to $10,016.00 in fees incurred in unsuccessfully opposing the motion to quash service.

This court finds that Petitioner is entitled to fees for time spent in the administrative proceedings. “Although the administrative proceedings involved the same parties and subject matter, the litigant still had to show that the time spent was “reasonably expended on the litigation because it was both useful and necessary and directly contributed to the resolution of the action.” (Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 971-972.) The administrative proceedings were reasonably useful and necessary to this action because such proceedings were not “optional.” (Best v. California Apprenticeship Council (1987) 193 Cal. App. 3d 1448, 1460.) Here, like in Best, Petitioner “pursued an administrative remedy which ultimately culminated in proceedings in the courts as an adjunct to the administrative proceeding, and is seeking fees for that single legal course. Since the administrative proceedings here were the first step in the litigation leading to the mandamus proceeding…, by their very nature they were useful and of a type ordinarily necessary to the public interest litigation.” (Ibid.)

As to the hours expended on the remaining sub-projects in the litigation, the court finds the hours expended are excessive. For example, based on this court’s experience, it does not take 64.8 hours on “fee recovery.” It should take no more than 10 hours. In the court’s experience, and in similar cases of this type, the Administrative Appeal should take no more than 15 hours, Writ Petition should take no more than 10 hours to draft; Opposition to Demurrer no more than 10 hours; Administrative Record no more than 20 hours; Trial Court Opening Brief no more than 15 hours; Trial Court Reply Brief no more than 10 hours; Opposition to Sanctions Motion no more than 2 hours; Trial Court Oral Arguments no more than 10 hours; Post-trial motions for attorney’s fees should take no more than 10 hours; and the entire appeal no more than 50 hours. Based on the reasonable hourly rate of $300.00, Petitioner is entitled to a lodestar of $45,600.00 in attorney’s fees.

Finally, this court finds that Petitioner is not entitled to a multiplier. Petitioner’s representation was not on a purely contingent basis because Attorney Walrafff received $7,516.00 for representing Petition on appeal. (Walraff Decl. Par. 27.) In Reply, Petitioner contends that its 1.5 multiplier already took into account the fact that its representation was “partially contingent.” If wholly contingent, it would have sought a 2.0 multiplier. (Reply, 10: 2-6.) How did Petitioner arrive at the 1.5 multiplier, as opposed to the 2.0? Simply asserting a new number in Reply, does not provide this court with any foundation or factual support regarding Petitioner’s valuation.

Further, aside from the conclusory statements that counsels had to turn down “other more remunerative work,” declarants failed to specify what cases were actually turned down and how remunerative these cases would have been, especially in light of the fact that this action should have only involved 102 hours of pre-trial and trial work, and 50 hours of appeal work, spread over the course of almost 3 entire years. Therefore, a multiplier is not proper in this instance.

Accordingly, motion is GRANTED in part and DENIED in part.

STATEMENT OF DECISION:

In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted ISSUES AT TRIAL upon the request of any party APPEARING AT THE TRIAL. The request must be made within 10 days after the court announces a tentative decision unless the TRIAL is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. After a party has requested the statement, any party may make proposals as to the content of the statement of decision. The statement of decision shall be in writing, unless the parties APPEARING AT TRIAL agree otherwise; however, when the TRIAL is concluded within one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties. (CCP 632.)

City and HPTV Apartments, L.P. request a written statement of decision pursuant to CCP 632, seeking adjudication of 20 issues. CCP 632 pertains to trials. This motion for attorneys’ fees is a post-trial motion, and the hearing on this motion is not a trial. Request is denied.