Case Number: BS160590 Hearing Date: January 16, 2018 Dept: 85

Santa Clarita Organization for Planning the Environment, et al. v. County of Los Angeles, BS 160590

Tentative decision on motion for attorney’s fees: granted

Petitioners Santa Clarita Organization for Planning the Environment (“SCOPE”) and Center for Biological Diversity (“CBD”) moves for an award of attorneys’ fees from Respondents County of Los Angeles (“County”) and Los Angeles County Board of Supervisors (“Board of Supervisors” and sometimes “Board”) (collectively, “County”).

The court has read and considered the moving papers (no opposition was filed)[1], and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioners commenced this proceeding on February 11, 2016. The Petition alleges in pertinent part as follows.

On March 4, 2015, the County’s Department of Regional Planning issued a Notice of Preparation (“NOP”), including an initial study and extended project description in connection with a project, the Entrada North project, which would include 1,150 multi-family residential units, 2,624,400 square feet of commercial uses, and a 50,000 square foot sheriff station.

After a first reading on December 15, 2015, the Board at its January 5, 2016 meeting approved a project revising the floodway for a portion of the Santa Clara River and related Floodway Maps ML Maps 43-ML26.2, 43-ML27.2 and 43-ML28.1 (the “Project”). The County’s floodway ordinance regulates construction within an established floodway. The Project will enable construction of the sheriff station and portions of the Entrada North project. Despite the connection between the floodway map revisions, the new sheriff station, and the Entrada North Project, the County described the purpose of the revisions as merely incorporating more recent engineering analysis and more effectively communicating flood risk.

On January 7, 2016, the County filed a Notice of Exemption (“NOE”) for the Project, asserting that the Project is categorically exempt as within a class of projects determined not to have a significant effect on the environment. The NOE does not mention the Entrada North project or the sheriff’s station. The NOE does not disclose the true purpose of the floodway maps revision, which is to facilitate the Entrada North project and the sheriff’s station.

Petitioners allege that the County erred in concluding that its approval of the Project is exempt from CEQA. The claimed exemption applies only to minor alternations that do not result in changes to land use or density. The Project does not qualify for this exemption because the change to the floodway maps will enable new development.

Petitioners further alleges that the County failed to provide a complete and accurate description of the Project in approving the floodway map revision, thereby “piecemealing” the approvals for the Entrada North project. The NOE is deficient because it does not describe the portions of the Entrada North project enabled by the floodway map revision.

2. Course of Proceedings

The matter came on for hearing on June 8, 2017. In its decision filed that date, the court addressed Petitioners’ contentions that the County violated CEQA by concluding that the floodway and floodplain map revisions are categorically exempt from CEQA under Guidelines section 15305. Petitioners further argued that the County was required to disclose that the floodway map revisions were intended to facilitate the construction of the sheriff’s station, which is in turn a portion of the Entrada North project.

The court initially rejected the County’s argument that the mapping Project was a ministerial action to which CEQA does not apply because the Santa Clara River (“River”) boundaries “are what they are”. The court decided that an agency’s decision to pass legislation is almost necessarily discretionary in nature. The Board of Supervisors may be responsible for maintaining accurate maps of the County’s rivers, floodways, and floodplains pursuant to the Los Angeles County Flood Control Act, but the manner and content of its legislative decision was discretionary.

Petitioners argued that CEQA requires environmental analysis of “the whole of the project” and the NOE project description improperly failed to include the sheriff’s station portion of the Entrada North project. Petitioners’ argument that the map revisions were necessary to enable the construction of the sheriff’s station was not supported by the record. The floodway and floodplain map revisions were triggered by the sheriff’s station project, but the County did not direct PACE, the engineer retained by Entrada North’s developer, to revise the River’s flood maps in order for the sheriff’s station project to move forward. Instead, the record demonstrated that the revised maps were not necessary for construction of the sheriff’s station. The map revision Project was a project for flood control, not a project for the construction of a sheriff’s station.

Petitioners also did not meet their burden to show improper piecemealing. No doubt the sheriff station project was a reasonably foreseeable consequence of the map revision Project. But it was undisputed that the projects serve different purposes (flood control versus construction). The map revision Project could be implemented independently of the sheriff’s station. The Board of Supervisors is responsible for maintaining accurate maps of the County’s rivers, floodways, and floodplains pursuant to the Los Angeles County Flood Control Act. Consequently, the Board was required to update the Santa Clara River’s floodplain and floodway maps regardless of the sheriff’s station project. The map revisions still were necessary even if the sheriff’s station is never built. As such, the projects are independent of each other.

The County contended that the floodway map revision corrected erroneous map references for the River and was exempt under Guidelines section 15305 (Minor Alterations in Land Use Limitations) (“Class 5”). The County claimed that the Project was exempt because it was limited to changing flood hazard boundaries used to determine the elevation at which structures should be built, and the 2016 Ordinance did not authorize the construction of new projects within flood hazard areas. Petitioners argue that the 2016 Ordinance’s map revisions were a major, not a minor, alteration to land use limitations because they were a major alteration in land designation intended to enable construction of the sheriff’s station.

The court concluded that, whatever their purpose, nothing in the record showed the map changes to be minor. The County’s contention that the categorical exemption applied because only boundaries, not construction, were involved did not address whether the boundary changes themselves were minor in nature. Petitioners were correct that the court cannot impose its own opinion on whether the map changes are minor. Consequently, the record lacked substantial evidence to support the conclusion that the 2016 Ordinance was exempt under Class 5’s minor alteration in land use.

Petitioners also argued that a Class 5 categorical exemption could not apply because the floodway map revisions were not within the category of project examples in Guidelines section 15305 and Appendix G. Instead, the map revisions were specifically planned to change the land use designation for, and to enable construction of, the sheriff’s station.

The court agreed. All of the examples in Guidelines 15305 and Appendix G apply to property line alterations for specific projects and all are adjustments to a specific land use limitation. None is a zoning change or a general adjustment applicable to property boundaries like the map revision.

Petitioners also argued that the floodplain and floodway map revisions cannot be categorically exempt from CEQA because there is a reasonable possibility of a significant effect on the environment due to unusual circumstances. Petitioners failed to show that the map revision Project had unusual circumstances. The revisions merely updated the maps in order to conform to the actually measured changes in the floodway and floodplain. There was nothing unusual about the fact that a development project is planned that will make use of those flood boundaries.

In sum, the petition for writ of mandate was granted. The map revision Project was discretionary, not ministerial, and subject to CEQA. The NOE’s project description was adequate and the Project had not been piecemealed. Nor did unusual circumstances apply. Nonetheless, the County had not shown the Project to be categorically exempt. A judgment and writ were issued directing the County to set aside its approval of the map revisions and perform additional environmental analysis, relying on a different categorical exemption or performing an initial study and negative declaration or EIR, before it reapproving the map revisions.

On August 1, 2017, the court entered judgment in favor of Petitioners. The peremptory writ was issued on August 28, 2017.

The County filed a Return to the writ on September 28, 2017.

B. Applicable Law

CCP section 1021.5 (“section 1021.5”) codifies the “private attorney general” exception to the general rule that each side bears its own fees unless the parties contracted otherwise. See CCP §1021. Section 1021.5 permits a trial court to award fees to a successful party in any action that: “has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement 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. The issue is committed to the trial court’s discretion. Flannery v. California Highway Patrol, (1998) 61 Cal.App.4th 629, 634.

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565. The party seeking attorney fees need not prevail on all of its alleged claims in order to qualify for an award. Harbor v. Deukmejian, (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney, (1983) 146 Cal.App.3d 42, 55. The party is considered “successful” under section 1021.5 if the litigation “contributed substantially to remedying the conditions at which it was directed.” Planned Parenthood v. Aakhus, (1993) 14 Cal.App.4th 162, 174. In other words, the “successful” party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (2004) 34 Cal.4th 604, 610. Prevailing counsel who qualify for an award under section 1021.5 are entitled to compensation for all hours reasonably spent. Serrano v. Unruh, (1982) 32 Cal.3d 621, 632–633.

“[T]he ‘significant benefit’ that will justify an attorney fee award need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.” Woodland Hills Residents Assn., Inc. v. City Council, (“Woodland Hills”) (1979) 23 Cal.3d 917, 939. “[T]he benefit may be conceptual or doctrinal and need not be actual or concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient.” Braude v. Automobile Club of Southern Cal., (1986) 178 Cal.App.3d 994, 1011. Moreover, the extent of the public benefit need not be great to justify an attorney fee award. See, e.g., Protect Our Water v. County of Merced, (2005) 130 Cal.App.4th 488, 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939–940.

The party seeking attorney’s fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941. The question is whether advancement of the public interest was merely coincidental to the attainment of the party’s personal goals. Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 181. The financial burden criterion focuses on the financial burdens and incentives involved, which is defined as objectively quantifiable pecuniary interests, and does not include nonpecuniary motives. In re Conservatorship of Whitley, (“Whitley”) (2010) 50 Cal.4th 1206, 1224-25. Whitley overturned a line of cases permitting consideration of a plaintiff’s personal interests as a basis for denying section 1021.5 attorney’s fees. Id. at 1224-25. The party seeking attorney fees bears the burden of establishing that its litigation costs transcend its personal pecuniary interests. Save Open Space Santa Monica Mountains v. Superior Court, (2000) 84 Cal.App.4th 235, 247. The trial court’s application of the financial burden criterion involves a “realistic and practical comparison of the litigant’s personal interest with the cost of suit.” Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, (2000) 79 Cal.App.4th 505, 515.

C. Statement of Facts

1. Petitioner’s Evidence

Babak Naficy (“Naficy”) joined the California Bar in 1995. Naficy Decl. ¶7. Naficy has represented numerous environmental groups in more than 40 separate CEQA matters all over California. Naficy Decl. ¶10. In 2015, Naficy recovered $45,000 in attorney’s fees at the rate of $400 per hour from the City of Taft. Naficy Decl. ¶14. Naficy’s current regular billing rate in larger metropolitan markets is $600 per hour. Naficy Decl. ¶15.

Naficy spent a total of 85.5 hours litigating this case. Naficy Decl. ¶16. Seven of these hours include Naficy’s driving time. Naficy Decl. ¶19. This total time does not include hours spend on the phone with the court, emailing clients and opposing counsel, or small blocks of time devoted to cite-checking and discussions with associates. Naficy Decl. ¶18. Naficy is also claiming $6,000 in fees for ten hours spent on the instant fee motion. Naficy Decl. ¶19.

Naficy’s base lodestar fee amount for his services is $51,000. Naficy Decl. ¶20. Naficy believes that Petitioners’ attorneys, including himself, are entitled to a multiplier of two in this case because they assumed significant risk by representing Petitioners on a contingency basis. Naficy Decl. ¶21. If Petitioners lost, Naficy would not have been compensated at all. Id.

Naficy reached out to County Counsel, Michael Moore, in an effort to resolve this fee issue without resort to litigation. Naficy Decl. ¶3. Naficy was told that the County was not prepared to discuss Petitioners’ fee claim. Id.

John Buse (“Buse”) is Senior Counsel and Legal Director with the Center for Biological Diversity. Buse Decl. ¶2. Buse has continuously and exclusively practiced public interest environmental law since November of 1993. Buse Decl. ¶5. Buse took on this case on an entirely contingent basis with no fees paid or promised. Buse Decl. ¶10.

Buse began working on this case in early January 2016. Buse Decl. ¶11. Buse dedicated approximately 10.9 hours to this case, with an additional 1.9 hours to date on the instant motion. Buse Decl. ¶12. Buse is requesting an hourly rate of $600. Buse Decl. ¶13.

Jamie Garretson (“Garretson”) is an attorney for Petitioners. Garretson Decl. ¶1. Garretson joined the California Bar in 2015. Garretson Decl. ¶3. Garretson’s billing rate is $350 per hour. Garretson Decl. ¶5. Garretson spent 14.2 hours on litigation of this case. Garretson Decl. ¶9. The base lodestar amount claimed for Garretson’s services is $10,220. Garretson Decl. ¶10. Garretson spent ten additional hours drafting the instant motion and anticipates spending five hours drafting a reply brief. Id. Total fees for time spent working on the motion is anticipated to be $5,250. Id. Garretson believes that she is entitled to a multiplier of two because her office took the case on a contingency basis. Garretson Decl. ¶12.

Amy Minteer (“Minteer”) is a partner at Chatten-Brown & Carstens, a small public-interest law firm that practices exclusively in the areas of environmental, land use, historic preservation, and municipal law. Minteer Decl. ¶2. Minteer opines that Naficy’s, Buse’s, and Garretson’s requested hourly rates are reasonable. Minteer Decl. ¶¶ 12-14.

D. Analysis

Petitioners seeks an award of attorney’s fees and costs under section 1021.5 in the amount of $145,185. This amount includes a lodestar of $66,390, a multiplier of two for the litigation work, and $12,390 for the fee motion. The County does not oppose.

1. Entitlement to Attorneys’ Fees

a. Successful Party

A “successful party” is ordinarily understood as a party that achieves its litigation objectives. Graham v. DaimlerChrysler Corp., (2004) 34 Cal.4th 553, 571. If a party reaches its “sought-after destination,” then the party prevails regardless of the route taken. Id.

Petitioners’ primary objective was to persuade the court to set aside the County’s approval of the Project and compel the County to comply with CEQA. Petitioners asserted numerous reasons why the court should do so. At trial, the court agreed with Petitioners that the map revision Project was discretionary, not ministerial, and was subject to CEQA. The court disagreed with Petitioners’ arguments concerning the adequacy of the map revision Project description and whether the Project was piecemealed. The court also disagreed with Petitioners that unusual circumstances applied. Nonetheless, Petitioners prevailed because the County had not shown the Project to be categorically exempt. A judgment and writ were issued directing the County to set aside its approval of the map revisions and perform additional environmental analysis before reapproving the map revisions.

Petitioners’ primary litigation objective was satisfied, and Petitioners are successful parties. As they argue (Mot. at 6), the fact that some of their arguments and claims were rejected does not undermine this conclusion. See Preserve Wild Santee v. City of Santee, (2012) 210 Cal.App.4th 260, 292-92.

b. Important Right Affecting the Public Interest

The case must enforce important rights affecting the public interest. See Woodland Hills Residents Assn. v. City Council, (1979) 23 Cal.3d 917 (societal importance of a particular “vindicated” right is to be measured “in terms of its relationship to the achievement of fundamental legislative goals.”).

As Petitioners note (Mot. at 7), the important right affecting the public interest may not always be concrete or tangible, and may be doctrinal and conceptual in nature. Braude v. Automobile Club, (1986) 178 Cal.App.3d 994, 1013. Petitioners enforced an important public right by requiring the County to evaluate the map revision Project through additional CEQA analysis, whether by different categorical exemption, MND, or EIR. This implicates important CEQA rights for the public to know what the environmental impacts are from the map revision Project, how they are evaluated, whether they are mitigated, and what the Project alternatives are.

c. Significant Public Benefit

Generally, “a right need not be constitutional in nature to justify the application of the private attorney general doctrine.” Woodland Hills Residents Assn., Inc. v. City Council, (“Woodland Hills”) (1979) 23 Cal.3d 917, 935. Nor must “important rights” be confined to a particular area of law. Ibid. At the same time, “[b]ecause the public always has a significant interest in seeing that laws are enforced, it always derives some benefit when illegal private or public conduct is rectified… the Legislature did not intend to authorize an award of fees under section 1021.5 in every lawsuit enforcing a constitutional or statutory right.” Flannery, supra, 61 Cal.App.4th 629, 635 (citing Woodland Hills, supra, 23 Cal.3d at 933). Courts should generally realistically assess the significance of the right in relationship to the achievement of fundamental legislative goals. Woodland Hills, supra, 23 Cal.3d at 936; see also Robinson v. City of Chowchilla, (“Robinson”) (2011) 202 Cal.App.4th 382, 394.

The section 1021.5 factors are interrelated; the more fundamental and important the right vindicated, the lower the showing required for the element that a large class of persons benefit. See Press v. Lucky Stores, Inc., 91983) 34 Cal.3d 311, 319. CEQA is a logical and carefully devised program of wide application and public purpose. Friends of “B” Street v. City of Hayward, (1980) 106 Cal.App.3d 988, 993.

Petitioners contend that their action will ensure the floodway maps are not approved without adequate review by decision-makers, and by informing the public of their environmental consequences. Mot. at 8. A careful environmental review and analysis often benefits both the public agency and the public living near the project. Riverwatch v. County of San Diego, (2009) 175 Cal.App.4th 768, 782. These consequences are significant public benefit.

d. Necessity and Financial Burden

The necessity of private enforcement becomes clear when the action is filed against the governmental agencies that bear responsibility for the acts. Woodland Hills Residents Assn., Inc. v. City Council, (1979) 23 Cal.3d 917, 941. Here, the responsible governing agency was the County, and the County likely would not have set aside its CEQA exemption determination absent Petitioners’ involvement. Thus, the necessity of private enforcement is clear.

The financial burden component of the private attorney general exception is met when the cost of the claimant’s legal victory transcends his personal interest. Woodland Hills Residents Assn., Inc. v. City Council, (1979) 23 Cal.3d 917, 941. Put another way, it is met when the necessity for pursuing the lawsuit placed a burden on the plaintiff out of proportion to his individual stake in the matter. Id. Here, as evidenced by the moving papers, the cost of the claimant’s legal victory was substantial. In contrast, their personal interest, aside from concerns about general environmental well-being and government compliance with environmental laws, appears to have been minimal. Thus, the financial burden component is satisfied.

Petitioners have shown that they are entitled to attorneys’ fees under section 1021.5.

2. Lodestar

The court employs the “lodestar” analysis when looking to determine the “reasonableness” of an attorney’s fee award. The lodestar figure is calculated by multiplying the number of hours reasonably spent by the reasonable market billing rate. Serrano v. Priest, (1977) 20 Cal.3d 25, 48.

Naficy states that he spent a total of 85.5 hours litigating the case and requests an award at an hourly rate of $600. Naficy Decl. ¶20. Buse states that he spent a total of 10.7 hours litigating the case and requests an award at an hourly rate of $600. Buse Decl. ¶¶ 12-13. Garretson states that he spent a total of 14.2 hours litigating the case and requests an hourly rate of $350. Garretson Decl. ¶10. At these hourly rates, their base lodestar amounts are $51,300, $6,420, and $4,970, respectively. The collective base lodestar amount is $62,690, not $66,390 as contended. Mot. at 12.

3. Support Services

Petitioners also seek $4,007.50 for 22.9 hours of secretarial and paralegal services at an hourly rate of $175. Pet. Op. Br. at 12. The Naficy declaration authenticates Exhibit A attached to the memorandum to support these costs, which will be awarded. See Salton Bay Marina, Inc. v. Imperial Irrigation District, (1985) 172 Cal.App.3d 914, 951 (secretarial and paralegal support services may be included in attorney’s fees).

4. Motion Fees

Petitioners seek $12,390 for fees to prepare and draft this motion and any reply. Naficy seeks $6,000 for a total of ten hours working on this fee motion, including the reply. Naficy Decl. ¶20. However, there was no opposition and no reply was required. The fees are reduced by $1800 (3 hr. x. $600). Buse seeks $1,140 for a total of 1.9 working on the motion. Buse Decl. ¶12. Garretson seeks attorneys’ fees for a total of ten hours spent working on the fee motion and an additional five hours on the reply. Garretson Decl. ¶10. No reply was necessary so his total fee motion is $3,500 (10 hr. x $350).

The total fees awarded with respect to the drafting and preparation of the instant motion is $8,840.

4. Multiplier

The factors to consider for a multiplier include the novelty and difficulty of the litigation, the extent to which the litigation precluded other employment by the attorneys, the contingent nature of the fee award, the fact that an award against the state would ultimately fall on the taxpayers, the fact that the attorneys received public and charitable funding for the purpose of bringing lawsuits of the character involved, and the fact that the moneys awarded would inure not to the benefit of the individual lawyers but the organizations employing them. Ramos v. Countrywide Home Loans, Inc., (2000) 82 Cal.App.4th 615, 622-23.

Petitioners seek a multiplier of two, to be applied to the lodestar of $62,690 for a total of $125,380. Pet. Op. Br. at 15. Petitioners argue that they are entitled to a multiplier because of the purely contingent nature of counsels’ fee recovery, the novelty, difficulty, and complexity of the issues, the work which the litigation precluded, and the importance of the case to the public. Pet. Op. Br. at 14-15.

Petitioners took this case on a purely contingency basis. Naficy Decl. ¶21. In so doing, they assumed substantial risk. If Petitioners had lost, they would not have been compensated for their work. Id. Moreover, this type of case involves a deferred payment of fees for several years even if there is a recovery. See Minteer Decl. ¶10. This factor weighs in favor of a multiplier.

Petitioners contend, without much explanation, that the issues were difficult and novel and they displayed great skill in presenting them. This was a CEQA matter, which is a technical and complex statutory scheme. However, there was nothing particularly complex about Petitioners’ argument that the map revision Project was not supported by a categorical exemption. Petitioners’ contention that they displayed great skill in presenting these issues is not a persuasive factor as they are being well-compensated by virtue of their claimed hourly rates. See Rey v. Madera Unified School District, (2012) 203 Cal.App.4th 1223, 1240.

Petitioners fail to support their contention that they gave up any other work to handle this case. This factor weighs against a multiplier.

A multiplier of 1.5 is granted primarily on the contingent fee factor.

E. Conclusion

Petitioners’ motion for an award of attorneys’ fees is granted. Petitioners’ lodestar is $62,690. Petitioners are entitled to a multiplier of ­1.5 for litigation-based work, resulting in a fee of $94,035. Petitioners also are entitled to support staff fees of $4,007.50 and $8,840. The total fees awarded are $106,882.50.

[1] The moving papers are 18 pages in violation of the 15-page limit of CRC 3.1113(d). The court has exercised its discretion to read and consider only the first 15 pages. The court also declines to consider the unauthorized reply.