Center for Biological Diversity v. Cal. Fish & Game Commission CA1/2 ( 2014 )

Filed 1/28/14 Center for Biological Diversity v. Cal. Fish & Game Commission CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CENTER FOR BIOLOGICAL
DIVERSITY et al.,
Plaintiffs and Appellants, A137889
v. (Alameda County
CALIFORNIA FISH AND GAME Super. Ct. No. RG12614930)
COMMISSION,
Defendant and Appellant.
I. INTRODUCTION
This is an appeal and cross-appeal by the parties to an action brought under Code
of Civil Procedure section 1021.5 (hereafter section 1021.5) from an order of the
Alameda County Superior Court awarding plaintiffs attorney fees in the amount of
$46,992 for their success in filing and pursuing a petition for a writ of mandate
challenging the validity of a regulation adopted by the defendant California Fish and
Game Commission (hereafter Commission). The challenged regulation designated the
Black-Backed Woodpecker (hereafter BBW) as a candidate species for protection under
the California Endangered Species Act (CESA), i.e., Fish and Game Code sections 2050
et seq. In its appeal, the Commission asks this court to overturn the trial court’s order
granting plaintiffs those attorney fees. In their cross-appeal, plaintiffs also ask us to
reverse that award, but on the basis that it was inadequate; they ask us to remand the case
1
to that court “with directions to calculate an adequate fee award . . . .” We will do neither
but, instead, affirm the trial court’s order awarding plaintiffs attorney fees.
II. FACTUAL AND PROCEDURAL BACKGROUND1
On October 1, 2010, plaintiffs filed a petition with the California Department of
Fish and Game asking it to list the BBW as a threatened or endangered species under the
CESA. A little over a year later on December 15, 2011, the Commission considered
adopting findings that the BBW was a “candidate species” under section 2068 of the Fish
and Game Code and that, therefore, such a listing “may be warranted.” (See Fish &
Game Code, § 2073.5.) On the same date, the Commission adopted a regulation (former
Cal. Code Regs., tit. 14, § 749.7, now ineffective for the reasons discussed below;
hereafter former § 749.7) as an emergency regulation under the Administrative Procedure
Act. That regulation “authorized the incidental take of the [BBW] during its candidacy
under the” CESA. This was not the first time the Commission had adopted such an
emergency regulation; on nine previous occasions, the Commission had relied on Fish
and Game Code section 2084 and its regulations to permit the taking of “candidate
species” of other animal and fish species.
The “incidental take” of the BBW under former section 749.7 was apparently
authorized for four specific reasons, i.e.: (1) scientific, educational or management
activities; (2) helping protect other endangered species or habitats; (3) fire response and
vegetation management activities; and (4) forest protection and timber harvest projects.
Another subsection of former section 749.7 reportedly established a reporting
requirement requiring any “incidental take” of a BBW to be reported to the Department
of Fish and Game’s Wildlife Branch.
1
The parties’ briefing has made the preparation of this section of our opinion more
time consuming than necessary. For example, the factual section of the Commission’s
opening brief includes very few citations to the record and omits some matters (e.g., the
communications between the parties on January 4 and 5, 2012). Similarly, plaintiffs’
opposition brief contains numerous miscitations to the record, including multiple
citations to a blank page in the clerk’s transcript.
2
Shortly after the Commission adopted former section 749.7, plaintiffs attempted to
persuade it that the proposed regulation was not justified by any specific emergency that
would exempt it from the requirements of the California Environmental Quality Act
(CEQA). They did so via a letter dated January 4, 2012,2 in which they contended, to
both the Commission and the Office of Administrative Law (OAL), that the proposed
former section 749.7 was not justified by any specific emergency that would justify a
CEQA exemption. Nonetheless, the following day, January 5, the OAL approved the
emergency regulation, making it effective the following day, i.e., January 6, for a period
of six months. However, under the Government Code such a regulation can be extended
for an additional six months if such is approved by the OAL before the end of the original
six-month period (see Gov. Code, § 11346.1, subd. (e)) and, per plaintiffs, such had been
done in the nine previous occasions involving “candidate species.”
On January 31, plaintiffs filed their petition challenging the validity of former
section 749.7. According to the Commission’s pleadings below, it then “determined that
committing the Commission’s time and resources to the defense of a regulation that
would in all likelihood become moot before a final ruling on the merits of the action
could be had, could not be justified as an appropriate use of public funds” and its
attorneys were then “instructed to . . . seek a negotiated resolution” of the matter,
including setting aside former section 749.7.
According to plaintiffs’ filings in the trial court, on March 16 “the parties
participated in their first settlement meeting . . . .” At that meeting, counsel for the
Commission allegedly informed plaintiffs’ counsel that it was “determined not to defend
the lawsuit and it recognized that the correct procedures were not followed” in adopting
former section 749.7. Plaintiffs’ counsel then drafted a proposed stipulated judgment and
settlement agreement and forwarded them to the Commission’s counsel on March 21.
The Commission did not agree to these drafts but, after further negotiations, the final
draft of a settlement agreement was agreed to and executed on May 9. In that agreement,
2
All further dates noted are in 2012.
3
the parties stated that it was entered into “without prejudice to Petitioners’ right to seek
recovery of attorney fees and costs in this matter.”
On May 29, the trial court entered a stipulated judgment in the case vacating
former section 749.7; attached to that judgment was the parties’ signed settlement
agreement.
In the subsequent months, extensive negotiations regarding the appropriate amount
of attorney fees took place between the parties. These negotiations were unsuccessful
and, on September 26, plaintiffs filed their motion for such fees, asking for a total of
$116,690.50, including costs and a 2.0 multiplier, on the basis that their counsel had
taken the case on a contingency basis.
After receiving opposition from the Commission, a response thereto from
plaintiffs, and hearing oral argument on November 19, the trial court granted plaintiffs a
total award of $46,992. It did so by making the multiplier only 1.2 and reducing
plaintiffs’ counsels’ alleged hours—mostly those spent on fee negotiation—by
approximately 45 percent overall.
Both parties filed timely notices of appeal.
III. DISCUSSION
A. The Commission’s Appeal From the Award of Attorney Fees
Our standard of review of a trial court order granting attorney fees under section
1021.5 and also regarding the amount thereof is, generally, abuse of discretion. (See,
e.g., Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553, 578 (Graham); Connerly
v. State Personnel Bd. (2006) 37 Cal. 4th 1169, 1175; PLCM Group, Inc. v. Drexler
(2000) 22 Cal. 4th 1084, 1094-1098; Jaramillo v. County of Orange (2011) 200
Cal. App. 4th 811, 830.) In Collins v. City of Los Angeles (2012) 205 Cal. App. 4th 140,
159 (Collins), one of our sister courts summarized the law thusly: “The trial court is in
the best position to determine the reasonable value of professional services rendered in a
case before it and has broad discretion to determine the reasonable amount of an attorney
fee award. [Citation.] A court abuses its discretion only if there is no reasonable basis
4
for its decision under the governing law and the reviewing court concludes that the court
clearly erred. [Citation.]”
However, as this court observed a few years ago, there are other considerations
regarding the award of attorney fees under section 1021.5 that need to be taken into
account. In Lyons v. Chinese Hospital Assn. (2006) 136 Cal. App. 4th 1331 (Lyons), we
approvingly quoted a leading text regarding those other considerations: “ ‘ “Attorney
fees are recoverable under section 1021.5 (1) by a successful party, (2) in an action that
has resulted in the enforcement of an important right affecting the public interest, (3) if a
significant benefit has been conferred on the general public or a large class of persons,
and (4) the necessity and financial burden of private enforcement are such as to make the
award appropriate. The statute’s purpose is to encourage public interest litigation that
might otherwise be too costly to pursue. [Citations.]
“ ‘ “The trial court is to assess the litigation realistically and determine from a
practical perspective whether [the statutory] criteria have been met.” [Citation.] Rulings
under section 1021.5 are reviewed for abuse of discretion. [Citations.] The questions are
whether the court applied the proper legal standards under section 1021.5 and, if so,
whether the result was within the range of the court’s discretion [citation], i.e., whether
there was a reasonable basis for the decision [citation].’ [Citation.]
“ ‘Although [section] 1021.5 is phrased in permissive terms (the court “may”
award), the discretion to deny fees to a party that meets its terms is quite limited. The
[S]upreme [C]ourt in Serrano v. Unruh (Serrano IV) (1982) 32 [Cal. 3d] 621, 633, noted
that the private attorney general theory, from which [section] 1021.5 derives, requires a
full fee award “unless special circumstances would render such an award unjust.” ’
[Citations.]” (Lyons, supra, 136 Cal.App.4th at pp. 1343-1344; see also Conservatorship
of Whitley (2010) 50 Cal. 4th 1206, 1213-1214.)
In its opening brief, the Commission relies on our opinion in Lyons—a decision in
which we reversed a trial court’s denial of attorney fees under section 1021.5—in
contending that “the fee award under review was an abuse of the trial court’s discretion,
in that the award was made with no supporting evidence—a fact conceded by the trial
5
court in its Fee Order—and in the absence of any satisfaction of section 1021.5’s
mandatory criteria.” We reject both of the Commission’s arguments, i.e., that there was
“no supporting evidence” and that the trial court violated section 1021.5’s standards.
Rather surprisingly, the Commission’s counsel, i.e., the Attorney General’s office,
contends—indeed twice in its opening brief—that the statement in the trial court’s order
granting attorney fees that “[c]ounsel never presented evidence or legal arguments to the
Court” means that plaintiffs’ counsel never offered evidence to the trial court regarding
their expenditure of time and resources in reaching the settlement with the Commission
regarding the disposition of former section 749.7. This argument is erroneous.3
First of all, the statement the Commission quotes from the trial court’s order was
in a portion of that order dealing with whether a multiplier should be applied to the
number of hours invested in the litigation by plaintiffs’ counsel. That counsel had
requested a multiplier of 2.0 while the Commission opposed any multiplier at all. As
noted above, the trial court concluded, after a careful analysis of the records presented to
it by the parties, that a multiplier of 1.2 was proper. The trial court’s statement quoted by
the Commission’s counsel was simply a reference to the fact that it held no evidentiary
hearings at which witnesses were called nor documents introduced into evidence, etc.
Thus, per that court, plaintiffs’ requested 2.0 multiplier was too high. But the trial court
was clearly not saying there was nothing in the record before it demonstrating plaintiffs’
entitlement to attorney fees. There certainly was such, including several declarations and
much supporting material regarding plaintiffs’ counsels’ investment of time and
resources in support of their petition for a writ of mandate. And there was also a hearing
before that court on this issue.
Second, the Commission contends that the trial court abused its discretion by
assuming that plaintiffs’ action established that the Commission’s earlier decisions
3
In the section of its reply brief dealing with the plaintiffs’ cross-appeal regarding
the amount of attorney fees that should be awarded, the Commission’s counsel states:
“[A]ssuming arguendo that a fee award was otherwise justified, the court’s review of the
fees issue is clearly detailed and carefully analyzed.” We agree.
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regarding nine other endangered species were unjustified. This argument is based on a
paragraph in the trial court’s decision which commenced by noting that plaintiffs’ “action
conferred a significant nonpecuniary benefit on the general public because the general
public receives a significant benefit when public agencies follow appropriate
procedures.” The court then referenced nine previous “emergency regulations” involving
other fish and game species, and took judicial notice thereof. It then stated: “By bringing
this action, Petitioners challenged and appear to have changed what appears to be the
Commission’s ongoing practice of adopting emergency regulations without making the
required factual findings.”
Again, the Commission has substantially overreacted to this statement in the trial
court’s order. First of all, the trial court did not state or even imply that this past history
regarding “emergency regulations” was in any way a major basis for its decision to award
attorney fees, much less the measurement of such fees. Thus, the court found a
significant public benefit accrued in this case because of the enforcement of a
requirement that the Commission follow the proper administrative procedures. We agree
with that determination: via the settlement of this case, the Commission acknowledged
that the proper procedure was not followed in adopting former section 749.7. Thus, the
settlement necessarily required the Commission to reevaluate the manner by which it
adopts “emergency regulations.”
Additionally, the trial court did not make an express finding that the outcome—
again, a stipulated outcome—of the current case and what had or had not happened
regarding the previous nine “emergency regulations” were necessarily related; it said
only that by bringing the present action plaintiffs “appear to have changed” the
Commission’s past practice of adopting emergency regulations without the required
findings. We have no difficulty in concluding that the trial court’s brief reference to
those prior emergency regulations adopted by the Commission had no prejudicial impact
on its award of attorney fees or its decision regarding the proper amount thereof.
Next, the Commission argues that the trial court violated Evidence Code section
1152 because it relied on plaintiffs’ counsels’ “recitation of what was supposedly said
7
during a mandatory CEQA settlement conference . . . as support for its order granting
attorney fees against the Commission . . . .” We also reject this contention, because it
ignores both (1) the basis of the trial court’s order granting attorney fees and (2) the reach
of Evidence Code section 1152.
That statute provides: “Evidence that a person has, in compromise or from
humanitarian motives, furnished or offered or promised to furnish money or any other
thing, act, or service to another who has sustained or will sustain or claims that he or she
has sustained or will sustain loss or damage, as well as any conduct or statements made in
negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or
any part of it.” (Evid. Code, § 1152, subd. (a).)
The Commission contends that the trial court violated this statute by its “total
reliance” on a recitation in a declaration filed by plaintiffs’ counsel concerning what was
said by the Commission’s counsel in the parties’ first settlement meeting on March 16.
We disagree for several reasons. First of all, a simple reading of the trial court’s order
granting plaintiffs attorney fees makes clear that there was no “total reliance” by it on any
recitation in the declaration filed by one of plaintiffs’ counsel, Josh Chatten-Brown. That
declaration is cited only once in the trial court’s order granting attorney fees, and then
only regarding the correct hourly rate to employ in computing the amount of attorney fees
to be awarded. Further, the March 16 settlement conference of the parties is referenced
only twice, but again nowhere in the trial court’s brief references to that date is there
anything suggesting, even slightly, that there was any “total reliance” by it on anything in
the Chatten-Brown declaration in its determination of whether, and how much, attorney
fees should be awarded to plaintiffs.
Finally on this point, but most importantly, the explicit language of Evidence Code
section 1152, subdivision (a), undermines the Commission’s argument. It expressly
addresses evidence that “is inadmissible to prove . . . liability,” and not the damages to be
awarded once liability has been established—or, as here, effectively conceded. As noted
above, per the settlement agreement of May 9, the Commission (1) conceded that it “did
not have substantial evidence to support its finding that there was an emergency with
8
regard to the” BBW, (2) voted unanimously on March 7, i.e., a week prior to the
settlement conference, “not to defend the lawsuit and directed its counsel to settle the
case at the earliest opportunity, and (3) did so “without prejudice to Petitioners’ right to
seek recovery of attorney fees and costs in this matter.” Thus, Evidence Code section
1152 is clearly inapplicable here because, from March 7 onward, the issue was not
liability—the issue addressed by that statute—but the attorney fees and costs which might
be awarded to plaintiffs. Section 1152 does not preclude the admission of such evidence.
(See, e.g., Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal. App. 4th 1481,
1491; Hawran v. Hixson (2012) 209 Cal. App. 4th 256, 296-297; Zhou v. Unisource
Worldwide, Inc. (2007) 157 Cal. App. 4th 1471, 1479; Fletcher v. Western National Life
Ins. Co. (1970) 10 Cal. App. 3d 376, 396.)
Finally, the Commission argues that (1) plaintiffs are not the successful parties as
required by section 1021.5, (2) their action did not result in the enforcement of an
important right affecting the public interest, and (3) its results did not confer a significant
benefit to the public. In these portions of its briefs, the Commission attempts, albeit with
somewhat different wording, to minimize the substantive outcome of the litigation, i.e.,
the results achieved by plaintiffs by the settlement voiding former section 749.7. We will
first summarize these arguments and then explain why none of them has merit.
The Commission first notes that the prayer for relief in plaintiffs’ original petition
sought both a declaration regarding whether the Commission’s approval of former
section 749.7 violated several specific statutory provisions because “absent a judicial
declaration of the rights of the parties, the adoption of this type of regulation is likely to
recur in the future.” Next, it notes that another objective, set forth in that petition’s
prayer for relief, was to require the Commission to both set aside former section 749.7
and “to prepare and certify a legally adequate EIR for the project.” Because neither of
these specific requests for relief were achieved via the stipulated judgment and settlement
agreement, the Commission argues, “neither of [plaintiffs’] objectives was realized.”
Quoting a passage from Graham, supra, 34 Cal.4th at page 557, it concludes this
argument by stating that “the Commission acted to set aside its regulation not because of
9
the ‘threat of victory’ by [plaintiffs],” but “ ‘by dint of nuisance and threat of expense,’ ”
i.e., “a pointless expenditure of public funds.”
Next, citing several appellate court decisions, including this court’s decisions in
Center for Biological Diversity v. California Fish & Game Com. (2011) 195 Cal. App. 4th
138 (Center) and Karuk Tribe of Northern California v. California Regional Water
Quality Control Board (2010) 183 Cal. App. 4th 330 (Karuk Tribe), the Commission
argues that, under the rulings of those cases, “[n]othing has been achieved in this action
that can be considered the enforcement of an important public right, as required by
section 1021.5 Accordingly, [plaintiffs] have failed to satisfy this mandatory requirement
for a fee award under that section.”
Finally, the Commission argues that a “mandatory requirement of section 1021.5
is that an action must have resulted in the conferring of a “significant benefit’ on the
general public or a large class of persons. No benefit, significant or otherwise, has been
conferred here.” It then cites a number of appellate court cases in which the court either
reversed a trial court’s fee award or affirmed a denial of such fees on such a basis, and
then concludes its argument by noting that, even without any specific actions being
required of the Commission regarding the BBW, it “apparently suffered no detriment
during that period, Petitioners’ lack of concern notwithstanding.”
We reject these various—albeit clearly related—arguments of the Commission for
several separate and distinct reasons. First of all, regarding the “successful parties”
argument, the record makes clear that plaintiffs essentially got the relief they wanted via
the litigation they initiated: a judgment (1) specifically setting aside former section 749.7,
(2) ordering the Commission “to comply with each and every provision of the” attached
settlement agreement between the parties, and (3) reserving jurisdiction in the trial court
to enforce the terms and conditions of that agreement. Such was essentially the relief
prayed for in the January 31, 2012, petition filed by plaintiffs, as the trial court also
explicitly found.
Second, in its order granting plaintiffs attorney fees, the trial court itself addressed
the issue of whether the terms of section 1021.5 had been met. It said, quoting the
10
language of that statute: “The action resulted in the enforcement of an important right
affecting the public interest. In this case, Petitioners challenged [the Commission’s]
practice and prevailed. Although the protection of the Woodpecker in this case in
isolation might not be an important right affecting the public interest, requiring public
agencies to follow appropriate procedures when adopting regulations is an important
public interest. [¶] The action conferred a significant nonpecuniary benefit on the general
public because the general public receives a significant benefit when public agencies
follow appropriate procedures. . . . By bringing this action, Petitioners challenged and
appear to have changed what appears to be the Commission’s ongoing practice of
adopting emergency regulations without making the required factual findings. [¶] In
addition, by providing a regulatory benefit for the Woodpecker, Petitioners conferred a
benefit on the general public because the people of the state of California have an interest
in California wildlife.”
We have no difficulty in finding that these conclusions by the trial court are
entitled to considerable deference by this court. Our Supreme Court has made clear,
indeed several times, that we should accord such findings by the trial court in a section
1021.5 action such deference. Thus, in its decision in Graham, supra, 34 Cal.4th at page
578, it rejected an appellant’s contention that the award of attorney fees in that section
1021.5 action was improper because the action had failed to confer a significant public
benefit. The court stated: “This contention need not detain us long. We will uphold the
trial court’s decision to award attorney fees under section 1021.5, unless the court has
abused its discretion. (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal. App. 4th 499,
544.) . . . [¶] In the present case, the trial court found that the problem addressed by the
lawsuit implicated an issue of public safety, and that the lawsuit benefited thousands of
consumers and potentially thousands more by acting as a deterrent to discourage lax
responses to known safety hazards. In light of the facts reviewed in the first part of this
opinion, we conclude the trial court did not abuse its discretion in finding that the lawsuit
met the substantial benefit and public interest requirements of section 1021.5.” (Graham,
supra, 34 Cal.4th at p. 578; see also Vasquez v. State of California (2008) 45 Cal. 4th 243,
11
250-251; Folsom v. Butte County Assn. of Governments (1982) 32 Cal. 3d 668, 685;
Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal. 3d 917, 938. ) This
court has ruled to the same effect three times recently. (See Center, supra, 195
Cal.App.4th at p. 136; Karuk Tribe, supra, 183 Cal.App.4th at p. 363; Lyons, supra,136
Cal.App.4th at p. 1344.) Other courts of appeal have ruled similarly. (See, e.g.,
Robinson v. City of Chowchilla (2011) 202 Cal. App. 4th 382, 391-392; Hewlett v. Squaw
Valley Ski Corp., supra, 54 Cal.App.4th at pp. 543-546; Planned Parenthood v. Aakhus
(1993) 14 Cal. App. 4th 162, 169-175.)
For all the foregoing reasons, we reject the Commission’s arguments that the trial
court erred in its award of attorney fees to plaintiffs.
B. Plaintiffs’ Cross-Appeal Regarding the Amount of Attorney Fees Awarded
In its cross-appeal, plaintiffs contend that the trial court erred in reducing the
number of hours invested by its counsel in the case for which they would be awarded
fees.
In its order granting attorney fees to plaintiffs, the trial court devoted almost a full
page of its single-spaced order of November 21 to the issue of “AMOUNT OF FEES—
LODESTAR.” In eight paragraphs on that page, it discussed the number of hours
invested by plaintiffs’ counsel in the various phases of the litigation including (1) the
hours plaintiffs’ counsel spent before the Commission conceded that it would not contest
the validity of former section 749.7, and (2) the hours they spent in “drafting the
settlement agreement and concluding the settlement.” It concluded that some reduction
was appropriate regarding both the number of hours invested in the litigation, and also
that plaintiffs’ counsel were asking for too many hours regarding the negotiation of the
settlement and the drafting of the settlement agreement. The court noted that plaintiffs
sought compensation for a total of “102 hours on the administrative and legal
proceedings” and, additionally, “50 hours on fee negotiation and the fee motion
($16,428), and 34 hours on the fee reply brief ($13,397).”
The trial court found these claims to be a bit excessive. It allowed plaintiffs all the
hours their counsel invested in the litigation before the Commission’s March 16
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concession, i.e., 42.9 hours, and an additional “30 hours drafting the settlement
agreement and concluding the settlement” for a total of 72.9 hours. It found a blended
rate of $400 per hour to be appropriate (a rate which plaintiffs do not contest on appeal),
and thus awarded plaintiffs’ counsel lodestar amounts of $29,160 for the litigation on the
merits and $12,000 on the fee motion, for a total of $41,160. After the use of the 1.2
multiplier the court awarded for the merits portion of the litigation, this gave plaintiffs a
total of $46,992 as compared to the amount they were seeking before the use of any
multiplier, i.e., $73,737.50 ($43,912.50 + $16,428 + $13,397).
Bearing in mind the standard of review clearly applicable here, i.e., abuse of
discretion, we find no error in the trial court’s ruling. It clearly had reviewed all the
pleadings filed by the parties both before and after the settlement on the merits—or lack
thereof—of former section 749.7, including three declarations filed by counsel for
plaintiffs and three on behalf of the Commission. And one of the latter was, we suspect,
possibly influential to the trial court in reaching the conclusion it did to reduce the
number of hours to reach its lodestar calculation. That document is an extended
declaration by attorney Andre E. Jardini of the firm of Knapp, Petersen & Clarke (a firm
which apparently specializes in the review and audit of legal billings) regarding his view
of the requested fees. That declaration set forth—and with considerable specificity—
why, in the declarant’s view, “the fees requested by attorneys for petitioners are
excessive.” Jardini particularly questioned the number of hours invested by plaintiffs’
counsel; he stated that, in his opinion, “[t]he tasks outlined do not coincide with the over
96 hours billed” during the time from the filing of the writ petition to the settlement
agreement and concluded that “this amount of fees might be requested as compensation
for a more lengthy or complex matter.”
Based on its ruling regarding the hours invested by plaintiffs’ counsel, it seems the
trial court clearly agreed with this assessment.
In plaintiffs’ brief to us on this subject, they acknowledge, as indeed they must,
the clearly applicable abuse of discretion standard of review, but then, citing a few cases
where attorney fees awards have been overturned or questioned, they say that the “trial
13
court’s reduction in reasonable hours expended by Petitioners’ counsel cannot be
rationalized.” They later refer to the “arbitrariness of the trial court’s reduction” of the
time invested by plaintiffs’ counsel in, especially, the time period after the Commission
conceded on the merits of the litigation and agreed to settle the case. Quoting Ketchum v.
Moses (2001) 24 Cal. 4th 1122, 1133, they contend that “absent circumstances rendering
the award unjust, an attorney fee award should ordinarily include compensation for all
hours reasonably spent, including those relating solely to the fee.” But they promptly
proceed to cite the principle relied on here by the trial court: the hours for which
compensation is approved may be minus those “that result from inefficient or duplicative
use of time.”
And such was, indeed, the basis for the trial court’s reduction of the amount of
attorney fees awarded plaintiffs, i.e., that, from the detailed records provided by the
parties regarding the time invested after the agreed-upon settlement of the case, their
counsel simply put in too many hours in concluding that settlement, including both
negotiation of the details of the settlement and drafting the settlement agreement.
Plaintiffs cite a number of cases (several of them federal court cases) in which
appellate courts have reversed a trial court’s reduction in the amount of fees awarded to
successful counsel; they conclude by stating that this trial court’s decision regarding the
fees to be awarded them was “an abuse of discretion.”
We disagree; as noted above, the trial court determined, based on the pleadings
before it (including the detailed declaration of Jardini) that plaintiffs were entitled to be
compensated for a total of 102.9 hours as opposed to the 186 hours requested by them.
And it made clear where and why it thought those claimed hours ought to be reduced, i.e.,
not at all regarding the time before the March 16 concession by the Commission, but
some in the time allegedly spent (1) on the merits of the case after March 16, (2) in the
negotiation of fees, (3) on the pleadings relating to the fee award, and (4) on the
preparation of the fee agreement. We disagree that such deductions constituted an abuse
of discretion.
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One helpful authority in this regard is the recent decision in Collins, supra, 205
Cal. App. 4th 140. In that decision, the court affirmed a trial court order which required
the defendant city of Los Angeles to pay only 60 percent of the attorney fees claimed by
the successful parties in a section 1021.5 lawsuit, and requiring the plaintiffs to pay the
remaining 40 percent from their “class restitution fund.” (Id. at p. 157.) After citing the
numerous authorities regarding the abuse of discretion standard of review of attorney fee
awards, the Collins court held: “Apportionment of attorney fees may be appropriate
under section 1021.5 if the court concludes that the successful litigant’s reasonably
expected financial benefits were sufficient to warrant placing part of the fee burden on
the litigant. [Citations.] In those circumstances, the court may award against the
opposing party the difference between the full amount of reasonable attorney fees and an
amount that the successful litigant could reasonably be expected to bear. [Citation.]
Thus, an attorney fee award under section 1021.5 is not necessarily an all-or-nothing
proposition.” (Id. at pp. 155-156, fn. omitted.)
Although the trial court’s decision in this case did not involve an “apportionment”
of fees between the successful and the unsuccessful parties in the litigation over the
validity of former section 749.7, the Collins decision demonstrates how far and how
broadly the abuse of discretion standard of review reaches. In our view, that standard
clearly validates the trial court’s award of fees as to both parties to this appeal.
IV. DISPOSITION
The order appealed from is affirmed. Each party shall bear its own costs and
attorney fees on appeal.
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_________________________
Haerle, Acting P.J.
We concur:
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Richman, J.
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Brick, J.*
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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