Building a Better Redondo v. City of Redondo Beach CA2/4

Filed 2/18/21 Building a Better Redondo v. City of Redondo Beach CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
BUILDING A BETTER B294328
REDONDO et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BS166124)
v.
CITY OF REDONDO BEACH et
al.,
Defendants and Appellants;
CENTERCAL PROPERTIES, LLC
et a1.,
Real Parties in Interest and
Appellants.
APPEAL from orders of the Superior Court of
Los Angeles County, James C. Chalfant, Judge. Affirmed.
The Sohagi Law Group, R. Tyson Sohagi and Mark J.G.
Desrosiers; Michael W. Webb, City Attorney and Cheryl
Park, Assistant City Attorney, for Defendants and
Appellants City of Redondo Beach and City Council of the
City of Redondo Beach.
Shumener, Odson & Oh, Betty M. Shumener, Henry H.
Oh and John D. Spurling; Allen Matkins Leck Gamble
Mallory & Natsis and Patrick A. Perry for Real Parties in
Interest and Appellants Centercal Properties and Redondo
Beach Waterfront.
Angel Law and Frank P. Angel for Plaintiffs and
Respondents Building a Better Redondo and James Light.
_______________________________________
INTRODUCTION
Appellant the City of Redondo Beach (the City)
partnered with appellants and real parties in interest
Redondo Beach Waterfront, LLC and CenterCal Properties,
LLC (real parties) to redevelop the City’s harbor area.
Respondents, Building a Better Redondo, Inc. and James
Light, filed this action for a writ of mandamus targeting the
proposed project. The crux of their petition concerned
claimed violations of the California Environmental Quality
Act (CEQA) (Pub. Resources Code, § 21000 et seq.), alleging
deficiencies in the City’s certification of a required
Environmental Impact Report (EIR). Other causes of action
2
in the petition included challenges to the project under the
public trust doctrine and challenges to the City’s
administrative appeal procedure.
The trial court ultimately found for respondents on a
number of claims relating to the City’s certification of the
EIR. The court found against respondents on essentially all
remaining issues. It later awarded respondents over
$680,000 in attorney’s fees under Code of Civil Procedure
section 1021.5,1 and over $80,000 in costs, holding appellants
jointly and severally liable.
On appeal, real parties, joined by the City, challenge
these awards. They argue respondents were not entitled to
fees or costs, asserting that respondents obtained only trivial
success. They further advance numerous complaints about
the amount of the fee award, including, inter alia: (1) the
trial court used an improper methodology to determine the
amount; (2) the court insufficiently reduced the amount to
reflect respondents’ partial success; (3) respondents
requested an excessive hourly rate for their lead attorney; (4)
and the court abused its discretion in granting a fee
enhancement. The City separately claims the court erred in
awarding fees for certain filings and in holding it jointly and
1 Undesignated statutory references are to the Code of Civil
Procedure.
3
severally liable with real parties. It further asserts a
challenge to the amount awarded for a particular cost item.2
Finding no error, we affirm.
BACKGROUND
A. The Project and the Administrative Process
The City partnered with real parties to redevelop the
Redondo Beach King Harbor Pier area. The proposed project
was to include construction of over 511,000 square feet of
new development. It included plans to modify Seaside
Lagoon, “a 3.6-acre non-tidal saltwater, sand-bottom
swimming facility.” Water for the lagoon is drawn from the
ocean, used by a nearby power plant, and then chlorinated
before entering the lagoon, in order to meet county health
regulations for public swimming. A rock revetment
separates the lagoon from the harbor waters. Under the
proposed project, the revetment was to be eliminated,
opening the existing lagoon to untreated harbor water. The
project was also to include a new boat-launch ramp.
The City circulated a draft EIR for the project in 2015.
In July 2016, after receiving written public comments on the
draft, the City released a final EIR. This document included
a staff-recommended alternative for a new location for the
boat-launch ramp, a location the draft had rejected. The
2 Real parties do not join in the City’s additional contentions.
When discussing contentions the City alone makes, we so
indicate.
4
City’s harbor commission later certified the final EIR and
approved the permits for the project, selecting the staff’s
recommended alternative for the boat-launch ramp location.
Respondents appealed the harbor commission’s decisions to
the City council, which ultimately denied their appeal.
B. Respondents’ Petition for a Writ of Mandate
Respondent Building a Better Redondo is a nonprofit
corporation “dedicated to preserving and enhancing resident
quality of life in the City.” Respondent Light is a city
resident and the president of Building a Better Redondo. In
November 2016, respondents petitioned the superior court
for a writ of mandate against the City. They included
CenterCal and Redondo Beach Waterfront as real parties in
interest. Respondents subsequently filed a first amended
petition asserting six causes of action. The first cause of
action alleged the final EIR failed to comply with CEQA in
about a dozen different ways, including: (1) failing to
disclose, evaluate, and mitigate the public health and safety
effects of opening Seaside Lagoon to harbor water; (2) failing
to disclose, evaluate, and mitigate the waterside-traffic and
safety effects of the boat-launch ramp’s location; (3) failing to
disclose, evaluate, and mitigate public-view impacts from the
project on a public park; and (4) failing to address whether
the project complied with a coastal land use plan that
prohibited obstruction of public views from the public park to
the ocean.
5
Respondents’ second cause of action alleged failure to
recirculate the EIR for public comment after the addition of
the new staff-recommended alternative for the boat-launch
ramp’s location. The third cause of action alleged violation
of the public trust doctrine, contending the project’s adverse
effects on recreation at Seaside Lagoon and interference with
coastal access for certain uses precluded certification of the
project. The fourth and fifth causes of action challenged the
validity of the City’s CEQA-appeal procedures. Finally, the
sixth cause of action alleged violation of the California Public
Records Act (Gov. Code, § 6250 et seq.), asserting that the
City failed to produce certain records and thus hindered
respondents’ preparation of the administrative record for
this proceeding. Respondents later abandoned the sixth
cause of action and did not brief it.
C. The Trial Court’s Ruling on the Merits
In May 2018, after receiving extensive briefing and
voluminous documentary evidence, and hearing oral
argument, the trial court issued a 103-page decision
granting respondents’ petition in part. The court agreed
that the City’s EIR was deficient with respect to the boat-
launch ramp’s location, the opening of Seaside Lagoon to the
harbor, and visual impacts from the project. As to the boat-
launch ramp’s location, the court agreed that the draft EIR
had inadequately disclosed and assessed its navigational-
safety impacts. It found that the draft’s insufficient
analysis, together with the final EIR’s selection of a new
6
recommended location that was previously rejected by the
draft, deprived the public of the required opportunity to
submit written comments on the chosen location’s safety
impacts and receive written responses from the City.
Regarding the opening of Seaside Lagoon to the harbor, the
court found, among other things, that the EIR included an
incomplete discussion of water-quality and public-health
impacts from potential exposure of swimmers to
contaminants in the harbor water. Finally, as to the
project’s visual impacts, the court found that the EIR
impermissibly failed to address (a) the visual impact of a
proposed hotel on southern views from a public park, and (b)
the project’s compliance with the coastal land use plan,
which prohibited obstruction of ocean views from the park.
The court therefore ordered the City to set aside its
certification of the final EIR and prepare a new CEQA
document properly addressing the relevant issues. The court
denied the petition on all other issues, save for a minor issue
not relevant here.
D. Respondents’ Motion for Attorney Fees
Following the trial court’s ruling on the merits,
respondents sought almost $960,000 in attorney fees as
private attorneys general under section 1021.5. Their
calculation included a requested fee enhancement in the
form of a 1.4 multiplier applied to their requested lodestar
amount.
7
Appellants opposed this request, arguing that
respondents had achieved such a poor result that they were
not successful parties, did not enforce an important public
right, and did not confer a significant benefit on the public
for purposes of eligibility for fees under section 1021.5.
Alternatively, appellants challenged the requested amount.
They argued, inter alia: (1) the requested hourly rate of
$650 for respondents’ lead attorney, Frank Angel, was too
high; (2) the court should reduce the lodestar amount by 80
percent to account for respondents’ limited success, and
should exclude work on certain unsuccessful filings from the
award; (3) respondents’ billing statements included various
excessive, duplicative, and non-credible items, as well as
impermissible block-billing; and (4) a fee enhancement was
not warranted. The City additionally argued that real
parties should be solely liable for any attorney fee award
because an indemnity agreement between the parties
required real parties to indemnify the City for litigation
costs, including fee awards.
The trial court issued a 20-page tentative ruling
granting respondents’ motion for attorney fees in large part,
determining they had achieved significant success that
entitled them to fees. The court concluded that respondents
were successful parties, finding they had “prevailed on
several significant EIR issues,” including the impacts of the
boat-launch ramp location, the human-health impacts of
changes to Seaside Lagoon, and the visual impact of the
project on views from a public park. The court referenced
8
our Supreme Court’s description of the EIR -- the subject of
respondents’ successful claims -- as “the ‘heart of CEQA.’”
(Citizens of Goleta Valley v. Board of Supervisors (1990) 52
Cal.3d 553, 564 (Citizens of Goleta Valley).) The court
further observed that compliance with the procedures it had
ordered could result in changes to the project. The trial
court determined that respondents’ victory enforced an
important public right to disclosure of human-health, view,
and navigational-safety impacts from the proposed project.
It further concluded that respondents’ successful claims
conferred a significant benefit on the public by allowing it to
provide additional input on these issues.
As to the amount of requested fees, the trial court
reduced respondents’ requested fees by over $275,000,
resulting in an adjusted lodestar of about $429,000 and a
total award of about $683,000. Initially, the court found that
Angel’s $650 hourly rate was reasonable. It agreed,
however, that respondents’ partial success warranted a
reduction of the lodestar. Nevertheless, it determined that
an 80 percent reduction was “far too severe” and would act
as a deterrent to private attorneys general. The court
therefore reduced the lodestar by only 20 percent. It further
reduced the time claimed for certain tasks on various
grounds, including excessive time claimed for work on
various filings and impermissible block-billing related to
work on the reply brief.
The trial court agreed with respondents that the
requested fee enhancement was warranted. The court found
9
that the case was complex and raised at least one novel
issue, which involved a “rarely used provision” of CEQA
requiring EIR review of a project’s substantial adverse
effects on human beings. It further found that respondents’
counsel “showed commendable skill in presenting these
issues and litigating them.” Indeed, the trial court praised
the work of counsel for all parties, stating that the briefs
“were incredibly thorough and well-constructed.” The court
noted that respondents’ fee agreement with their counsel
provided for a $90,000 fee cap and a substantially reduced
hourly rate, and that respondents were ultimately unable to
afford even that amount, ultimately paying counsel only
about $66,000. The court found these circumstances placed
much of the risk of failure in the litigation on counsel, who
essentially worked on a partial contingency basis. Per the
trial court, these factors weighed in favor of a fee
enhancement. The court considered whether the award
would be likely to fall on taxpayers, which would weigh
against an enhancement, but concluded that the indemnity
agreement between the City and real parties made this
unlikely.
E. Appellants’ Motion to Strike or Tax Costs
Respondents additionally sought over $126,000 in costs
under section 1032. Appellants moved to strike or tax costs.
Similar to their arguments against the attorney fee award,
appellants argued that given respondents’ limited success,
respondents were not successful parties entitled to costs
10
under section 1032. In the alternative, appellants raised
various challenges to the items and amounts claimed by
respondents. Among other things, appellants objected to the
billing rate respondents sought for the time one of their
attorneys spent compiling the administrative record, and to
certain costs respondents claimed for the preparation of
administrative hearing transcripts.
Citing its analysis of respondents’ entitlement to
attorney fees, the trial court concluded respondents were
successful parties entitled to costs. The court agreed,
however, that a lower billing rate was appropriate for the
preparation of the administrative record, and it also taxed
several other cost items. It did not tax the costs requested
for preparation of the transcripts. Overall, the trial court
awarded respondents over $82,000 in costs.
DISCUSSION
A. Environmental Review Under CEQA
Enacted in 1970, CEQA’s basic purposes are: “(1) to
inform governmental decision makers and the public about
the potential significant environmental effects of proposed
activities, (2) to identify ways that environmental damage
can be avoided or significantly reduced, (3) to prevent
significant, avoidable damage to the environment by
requiring changes in projects through the use of alternatives
or mitigation measures when the governmental agency finds
the changes to be feasible, and (4) to disclose to the public
the reasons why a governmental agency approved the project
11
in the manner the agency chose if significant environmental
impacts are involved.” (San Joaquin Raptor/Wildlife Rescue
Center v. County of Stanislaus (1996) 42 Cal.App.4th 608,
614 (San Joaquin).) Under CEQA, when a proposed project
involves governmental action, the relevant agency must
conduct a preliminary review to determine if there is a
possibility that the activity would have a significant effect on
the environment. (San Joaquin, supra, at 614.) If this
initial study finds substantial evidence that such a
possibility exists, the agency must prepare an EIR. (San
Joaquin, at 614-615.)
If an EIR is required, the agency must: (1) prepare a
draft EIR and make it available for public review; (2)
evaluate comments on environmental issues from persons
who reviewed the draft, and prepare a written response; and
(3) prepare a final EIR, containing the information included
in the draft EIR, comments received in the review process,
and the response of the agency to the comments received.
(San Joaquin, supra, 42 Cal.App.4th at 615.) The purpose of
the EIR “is to inform the public and its responsible officials
of the environmental consequences of their decisions before
they are made.” (San Joaquin, at 615.) “Thus, the EIR
‘protects not only the environment but also informed self-
government.’” (Ibid.)
12
B. Appellants’ Challenges to Respondents’ Entitlement
to Attorney Fees
“Section 1021.5 codifies the ‘private attorney general’
doctrine of attorneys fees articulated in Serrano v. Priest
(1977) 20 Cal.3d 25 . . . and other judicial decisions.”
(Flannery v. California Highway Patrol (1998) 61
Cal.App.4th 629, 634.) “The statute gives the trial court
discretion to award fees to a successful party if (1) its action
has resulted in the enforcement of an important public right,
(2) the general public or a large class of persons has received
a significant benefit, (3) the burden of private enforcement is
disproportionate to the litigant’s personal interest, and (4) it
is unfair to make a successful plaintiff pay the fees out of
any recovery.” (Concerned Citizens of La Habra v. City of La
Habra (2005) 131 Cal.App.4th 329, 334 (Concerned
Citizens).)
“The award of fees under section 1021.5 is an equitable
function, and the trial court must realistically and
pragmatically evaluate the impact of the litigation to
determine if the statutory requirements have been met.
[Citation.] This determination is ‘best decided by the trial
court, and the trial court’s judgment on this issue must not
be disturbed on appeal “unless the appellate court is
convinced that it is clearly wrong and constitutes an abuse of
discretion.” [Citations.]’” (Concerned Citizens, supra, 131
Cal.App.4th at 334.)
Appellants contend that given respondents’ partial
success in this action, they (1) were not successful parties,
13
(2) did not enforce an important public right, and (3) did not
confer a significant benefit on the public.3 We discuss their
contentions in turn.
1. Successful Parties
“Under section 1021.5, ‘[a] “successful party” means a
“prevailing” party.’ [Citation.] ‘It is settled, however, that a
party need not prevail on every claim presented in an action
in order to be considered a successful party within the
meaning of the section.’ [Citation.] A party who
‘“‘“succeed[s] on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing
suit”’”’ [citation] may be considered a prevailing party ‘for
attorneys’ fees purposes.’ [Citation.] ‘The significance of the
. . . issue was a matter for the trial court’s judgment.’”
(Sweetwater Union High School Dist. v. Julian Union
Elementary School Dist. (2019) 36 Cal.App.5th 970, 982
(Sweetwater).)
The trial court reasonably determined that
respondents were successful parties. In reaching this
conclusion, the court found that respondents had “prevailed
3 Appellants also argue the trial court used an impermissible
methodology to calculate the amount of the award, and claim this
should result in outright reversal of the award. Appellants make
no attempt to explain why a claimed error in determining the
amount should result in no award at all. Accordingly, we address
appellants’ argument regarding the trial court’s methodology as
part of their challenge to the amount of the award.
14
on several significant EIR issues.” These included the draft
EIR’s inadequate discussion of the navigational-safety
impacts of the new boat-launch ramp’s location, the
incomplete discussion of water-quality and health effects of
the opening of Seaside Lagoon to potentially unhealthy
harbor water, and the failure to address the project’s visual
impact on views from the public park. As the court noted,
the EIR is “the ‘heart of CEQA.’” (Citizens of Goleta Valley,
supra, 52 Cal.3d at 564.) And while the relief the court had
granted respondents did not automatically require changes
to the project, the court correctly observed that compliance
with the additional procedures it had ordered could result in
such changes. We see no basis to disturb the trial court’s
determination that respondents were successful parties.
(See Concerned Citizens, supra, 131 Cal.App.4th at 334.)
Appellants argue the claims on which appellants did
not prevail precluded successful-party status. But as
explained, a party need not prevail on every claim to be
considered a successful party under section 1021.5; “[r]ather,
partial success is a factor to be considered by the trial court
in determining the amount of fees awarded.” (Sweetwater,
supra, 36 Cal.App.5th at 983.)
2. Enforcement of Important Public Right
“This prong of section 1021.5 requires a determination
of ‘the “strength” or “societal importance” of the right
involved.’ [Citation.] ‘That right may be constitutional or
statutory, but it must be “‘an important right affecting the
15
public interest’” -- it “cannot involve trivial or peripheral
public policies.” Where, as here, the right vindicated is
conferred by statute, “courts should generally realistically
assess the significance of that right in terms of its
relationship to the achievement of fundamental legislative
goals.”’” (Canyon Crest Conservancy v. County of Los Angeles
(2020) 46 Cal.App.5th 398, 410 (Canyon Crest).) Courts have
recognized that successful CEQA claims enforce an
important public right. (See, e.g., Concerned Citizens, supra,
131 Cal.App.4th at 335, 336 [“CEQA involves important
rights affecting the people of this state” and “section 1021.5
was enacted to encourage the enforcement of such legislation
by public interest litigation”]; Rich v. City of Benicia (1979)
98 Cal.App.3d 428, 435 (Rich) [“Unquestionably
environmental concerns in general and the statutory policy
in favor of use of [EIRs] in particular involve preeminently
important public rights”].)
The trial court determined that respondents’ victory
advanced CEQA’s legislative goals and policies by enforcing
the public right to environmental disclosure of
human-health, view, and safety impacts. Appellants argue
that respondents obtained only a minor technical victory, as
the trial court merely required the City to conduct additional
analysis and recirculate certain information. We disagree.
As our Supreme Court has emphasized, the EIR’s
purpose “is to inform the public and its responsible officials
of the environmental consequences of their decisions before
they are made,” thus “‘protect[ing] not only the environment
16
but also informed self-government.’” (Citizens of Goleta
Valley, supra, 52 Cal.3d at 564.) The relief appellants
obtained below required the City to recirculate documents
addressing the safety, health, and visual impacts of various
aspects of the project. The City’s compliance will give the
public an opportunity to provide input on matters previously
at least partially insulated from public debate, and will allow
the City to consider all relevant and necessary data before
making final decisions regarding the project. Respondents’
successful claims therefore promoted the core objectives of
an EIR and thereby served to enforce important public rights
under CEQA. (See Concerned Citizens, supra, 131
Cal.App.4th at 335-336; Rich, supra, 98 Cal.App.3d at 435;
San Bernardino Valley Audubon Society, Inc. v. County of
San Bernardino (1984) 155 Cal.App.3d 738, 747, 753 [award
of fees was not abuse of discretion where trial court
invalidated EIR and ordered county to prepare new one].)
3. Significant Benefit
“[T]he ‘significant benefit’ that will justify an attorneys
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 (1979) 23 Cal.3d 917, 939; accord, RiverWatch v.
County of San Diego Dept. of Environmental Health (2009)
175 Cal.App.4th 768, 781 (RiverWatch).) “Thus, successful
CEQA actions often lead to fee awards under section 1021.5.
17
[Citations.] Moreover, the extent of the public benefit need
not be great to justify an attorneys’ fee award.” (RiverWatch,
supra, at 781; see also 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].) “[T]he trial
court must ‘determine 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.’ [Citation.]
Thus, significant benefit and important right requirements
‘dovetail’ to some extent.” (Canyon Crest, supra, 46
Cal.App.5th at 412.)
The trial court concluded respondents’ successful
claims conferred a significant benefit on the public by
allowing it to provide additional input on human-health
impacts from changes to Seaside Lagoon and on safety
impacts from the boat-launch ramp’s location. We find no
fault in this conclusion.4 (See RiverWatch, supra, 175
Cal.App.4th at 782 [“The significant benefit criterion is
satisfied where, as here, the litigation permits affected
parties to provide additional input on remand--in this case,
4 Concerned Citizens, supra, 131 Cal.App.4th 329, cited by
appellants, is inapposite. There, the Court of Appeal simply
found no prejudicial abuse of discretion in the trial court’s denial
of attorney fees in connection with petitioners’ proof of a “minor
blemish” in the preparation of a mitigated negative declaration.
(See id. at 335-336.))
18
to voice their concerns about environmental impacts on
water sources, traffic and mitigation plans involving open
space”].)
C. Appellants’ Challenges to the Amount of Attorney
Fees
“In California, the fee setting inquiry ordinarily begins
with the ‘lodestar,’ i.e., the number of hours reasonably
expended multiplied by the reasonable hourly rate.
[Citation.] . . . . The reasonable hourly rate is the rate
prevailing in the community for similar work. [Citation.]
After arriving at the lodestar figure, the court may then
adjust that figure based on a consideration of factors specific
to the case to arrive at an amount representing the fair
market value for the legal services provided. [Citation.]
This approach ‘anchors the trial court’s analysis to an
objective determination of the value of the attorney’s
services, ensuring that the amount awarded is not arbitrary.’
[Citation.] Our Supreme Court has explained that an
attorney fee award, including an award under Code of Civil
Procedure section 1021.5, ‘should be fully compensatory’ and,
absent ‘circumstances rendering the award unjust, an . . .
award should ordinarily include compensation for all the
hours reasonably spent, including those relating solely to the
fee.’” (Building a Better Redondo, Inc. v. City of Redondo
Beach (2012) 203 Cal.App.4th 852, 870 (BBR).)
“[T]he court has broad discretion to determine the
reasonableness of the fees claimed in light of a number of
19
factors, including the nature of the litigation, its difficulty,
the skill required in its handling, the skill employed, the
attention given, the success or failure, and other
circumstances. [Citation] ‘The “experienced trial judge is
the best judge of the value of professional services rendered
in his court, and while [the judge’s] judgment is of course
subject to review, it will not be disturbed unless the
appellate court is convinced that it is clearly wrong.”’” (BBR,
supra, 203 Cal.App.4th at 873.)
1. The Trial Court’s Methodology
a. Background
During the hearing on respondents’ motion for attorney
fees, the trial court commented on the process for
determining the amount of fees: “To some extent, attorneys’
fees are a plug issue. That is, . . . I go through the analysis,
and then I look at the number. And I say to myself: Is that
number in the reasonable range? Yes. Which is what I did.
[¶] Does it matter to me whether it’s a multiplier or it’s part
of the lodestar? Not really. As long as I get to a number
that I think is reasonable. [¶] Could I have cut more and
then increased the lodestar? Or could I have reduced the
lodestar and cut less? I could have to reach this number.”
Later, in discussing an argument by respondents that the
court’s tentative ruling overly reduced the compensable time
spent on their reply brief, the court noted it was allowing “a
lot of hours” for the filing, and added, “If I didn’t cut here, I
could just cut the multiplier. Right? I could bring it up here
20
and make it a 1.3 multiplier and reach the same result.”
Finally, in a colloquy with the City’s counsel regarding the
amount of attorneys’ fees, the court remarked, “It’s just like
[¶] . . . [¶] whack-a-mole. You knock [¶] . . . [¶] one down;
another one’s going to pop up.”
b. Analysis
Appellants claim the trial court used an impermissible
methodology in determining the amount of the award.
Relying on the court’s comments at the hearing on
respondents’ motion for fees, appellants assert the court
simply chose a number it thought reasonable and adjusted
the factors as needed to justify its predetermined number.
We disagree.
Initially, we note appellants arguably forfeited their
challenge by failing to object to the court’s comments below.
(See Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592
(Perez) [“arguments raised for the first time on appeal are
generally deemed forfeited”].) Regardless, appellants
misconstrue the trial court’s remarks. The court explained
its process for determining the fee amount: “I go through the
analysis, and then I look at the number. And I say to myself:
Is that number in the reasonable range? Yes. Which is
what I did.” In other words, only after applying the
appropriate analysis to determine the amount of the fee
award, did the court consider whether the resulting number
was reasonable given the circumstances of the case (and
concluded it was). Contrary to appellants’ contention, the
21
court’s comments did not suggest it arbitrarily selected an
amount it thought fair. We need not address what the court
said it could have done, but did not do.
Moreover, even assuming the trial court’s comments at
the hearing reflected a misapprehension of law, they would
not warrant our intervention. The court’s written decision
on respondents’ motion for fees employed the correct
methodology and reflected no arbitrary selection of a
subjectively fair amount. Appellants may not use the court’s
oral comments at the hearing to impeach the judgment.
(See, e.g., Jespersen v. Zubiate-Beauchamp (2003) 114
Cal.App.4th 624, 633 (Jespersen) [“a judge’s comments in
oral argument may never be used to impeach the final order,
however valuable to illustrate the court’s theory they might
be under some circumstances”].)
2. Attorney Frank Angel’s Hourly Rate
a. Background
Respondents requested an hourly rate of $650 for the
work of Frank Angel, their lead attorney. In support of that
rate, they noted that Angel had over 30 years of experience
and had been recognized as a leading expert in his field.
(See BBR, supra, 203 Cal.App.4th at 872 [superior court
found that Angel, who was petitioners’ lead counsel, “was a
leading expert in the field of environmental, land use and
administrative law”].) They further noted that in 2010, eight
years before the fee proceeding in this case, the superior
court in BBR awarded Angel fees at an hourly rate of $550.
22
Finally, respondents submitted a declaration by a retired
Court of Appeal justice, filed in a different case, opining that
in Southern California, attorneys who had over 25 years of
experience had billing rates of $500 to $1,200 per hour.
Appellants objected to Angel’s requested rate, arguing,
inter alia, that BBR was far more complex than this case.
They also contended that Angel, who was part of a small law
firm, should not be compared with partners at large national
firms, whose corporate clients are often willing to pay
premium rates for reasons inapplicable to Angel. They also
noted that Angel charged his clients in this case only $325
per hour. The trial court rejected appellants’ arguments,
noting Angel’s experience and respondents’ evidence
regarding the prevailing rates in the region. The court also
stated that this case was not straightforward, as it involved
intricate CEQA issues, and that Angel capably represented
respondents.
b. Analysis
Appellants claim the trial court abused its discretion in
refusing to reduce Angel’s hourly rate of $650. “[T]he
reasonable value of attorney services is variously defined as
the ‘“hourly amount to which attorneys of like skill in the
area would typically be entitled.”’” (Ketchum v. Moses (2001)
24 Cal.4th 1122, 1133 (Ketchum).) This reasonable market
value serves as the basis for the lodestar calculation “even if
the attorney has performed services pro bono or . . . for a
reduced fee and regardless of whether the plaintiff is
23
represented by private or nonprofit counsel.” (BBR, supra,
203 Cal.App.4th at 873.)
“The courts repeatedly have stated that the trial court
is in the best position to value the services rendered by the
attorneys in his or her courtroom [citation], and this includes
the determination of the hourly rate that will be used in the
lodestar calculus. [Citation.] In making its calculation, the
court may rely on its own knowledge and familiarity with
the legal market, as well as the experience, skill, and
reputation of the attorney requesting fees [citation], the
difficulty or complexity of the litigation to which that skill
was applied [citations], and affidavits from other attorneys
regarding prevailing fees in the community and rate
determinations in other cases.” (569 East County Boulevard
LLC v. Backcountry Against the Dump, Inc. (2016) 6
Cal.App.5th 426, 437 (569 East County Boulevard).)
In concluding Angel’s requested rate was reasonable,
the trial court observed, inter alia: there was evidence that
environmental lawyers in Southern California with over 25
years of experience charged rates ranging from $500 to
$1,200 per hour; Angel had three decades of expertise in
environmental and land-use litigation; and Angel himself
had received fees based on an hourly rate of $550 for work in
BBR, nearly a decade before the fee proceeding in this case.
These facts amply supported the court’s decision that an
hourly rate of $650 was reasonable. (See 569 East County
Boulevard, supra, 6 Cal.App.5th at 436-437.)
24
In support of their argument that a rate of no more
than $500 per hour would have been appropriate, appellants
make two arguments. First, they argue that the $550 per
hour rate in BBR should have functioned as a “ceiling” for
Angel’s rates because the superior court there opined this
rate was on the “‘high end,’” and because according to
appellants, BBR was more complex than this case.
Appellants overlook, however, that Angel had significantly
less experience during the BBR litigation. The evidence
before the trial court supported a range of $500 to $1,200 per
hour for attorneys of similar or lesser experience. And we
see no basis to reject the trial court’s assessment that this
case, too, was complex, and involved intricate CEQA issues.
Second, appellants argue that as an attorney at a small
firm, Angel should not receive a $650 hourly rate, which
they claim is appropriate only for attorneys at large national
firms. They note that Angel charged his clients in this case
only $325 per hour. These contentions ignore settled
caselaw, under which even if an attorney charges a reduced
fee, the reasonable market value of the work controls, based
on the amount attorneys of like skill typically charge. (See
Ketchum, supra, 24 Cal.4th at 1133; BBR, supra, 203
Cal.App.4th at 873; cf. Rogel v. Lynwood Redevelopment
Agency (2011) 194 Cal.App.4th 1319, 1232 [allowing reduced
fee award based on “a ‘pro bono discounter’ would lead to the
anomalous result that the only cases in which fully
compensatory fees can be awarded are those in which the
prevailing plaintiffs actually have the ability to pay their
25
attorneys” (id. at 1233)].) Accordingly, the trial court did not
abuse its discretion in deeming Angel’s hourly rate of $650
reasonable.
3. Reduction for Partial Success
Appellants argue the trial court abused its discretion
by reducing the lodestar by only 20 percent in accounting for
respondents’ partial success. They maintain the court was
required to reduce the lodestar by 80 percent.
“[A] trial court may reduce attorneys’ fees based on the
plaintiff’s degree of success.” (Save Our Uniquely Rural
Community Environment v. County of San Bernardino
(2015) 235 Cal.App.4th 1179, 1185.) “A reduced fee award is
‘“appropriate if the relief, however significant, is limited in
comparison to the scope of the litigation as a whole.”’” (Ibid.)
When accounting for partial success, the trial court “is not
required to follow a formulaic reduction . . . based on the
number and percentage of unsuccessful claims raised”
(Center for Biological Diversity v. County of San Bernardino
(2010) 185 Cal.App.4th 866, 898 (Center for Biological
Diversity)), and may “‘account for the qualitative as opposed
to quantitative significance of the issues included in the
[petition]’” (RiverWatch, supra, 175 Cal.App.4th at 783).
The trial court agreed that respondents’ partial success
warranted a reduction of the lodestar. The court concluded,
however, that the 80 percent reduction appellants had
requested was “far too severe” and would act as a deterrent
to private attorney generals. It therefore reduced the
26
lodestar by 20 percent. In support of their contention that
an 80 percent reduction of the lodestar was required,
appellants note: (1) respondents prevailed on only four of
over a dozen CEQA claims in their first and second causes of
action; (2) about 30 percent of respondents’ briefing focused
on their unsuccessful third, fourth, and fifth causes of action;
and (3) respondents abandoned and did not even brief their
sixth cause of action.
Appellants provide no explanation or authority in
support of their mixed approach, which focuses on the
amount of briefing for some issues while focusing on the
number of claims for others. In any event, the trial court
was not required to follow such a formulaic approach and
was entitled to consider the qualitative significance of the
issues. (See Center for Biological Diversity, supra, 185
Cal.App.4th at 898; RiverWatch, supra, 175 Cal.App.4th at
783.) The court issued a written ruling in excess of 100
pages on the merits and was intimately familiar with the
issues. It was, therefore, in the best position to assess the
relative significance of the issues on which respondents
prevailed. (RiverWatch, supra, at 783 [“Having presided
over briefing and trial, the court was in the best position to
assess the significance of the issues remanded for further
consideration and action by [the public agency]”].) We find
no abuse of discretion.
27
4. Fees for Motion to Compel Production of a
Privilege Log
a. Background
Before trial, respondents complained the City was
withholding certain documents from them based on
unsupported claims of privilege, thereby preventing them
from completing the preparation of the administrative
record. Respondents then filed a motion to compel the City
to produce a privilege log, asserting the City had neither
disclosed what documents were being withheld, nor made a
prima facie showing that any privilege applied. Judge
Palazuelos, who was assigned the case at the time, denied
respondents’ motion, concluding the City had already
identified all withheld documents and sufficiently justified
withholding them.
Respondents’ subsequent motion for attorney fees
sought compensation for about 90 hours of work on the
motion to compel. The City objected, asking the court to
disallow time spent working on this motion because it was
unsuccessful. The trial court (Judge Chalfant) found
respondents had a plausible basis to file the motion and thus
declined to deduct the entire time requested for it. The court
agreed, however, that the time claimed for this fruitless
motion was excessive, and thus reduced the compensable
time by 20 hours or approximately 22 percent.
28
b. Analysis
The City argues the court abused its discretion in
refusing to disallow all time for the motion to compel. It
contends this motion related solely to the sixth cause of
action for violations of the California Public Records Act,
which respondents later abandoned, and thus warranted no
fees.
We disagree. Contrary to the City’s assertion,
respondents’ motion to compel was not simply subordinate to
their sixth cause of action; rather, respondents sought the
privilege log to facilitate the preparation of the
administrative record on which their entire action relied.
That the motion was ultimately unsuccessful did not render
counsel’s work non-compensable. (See City of Los Angeles v.
Metropolitan Water Dist. of Southern California (2019) 42
Cal.App.5th 290, 307 (City of Los Angeles) [“There is no
requirement that each motion or opposition be successful to
be reasonable”].) The trial court nevertheless reduced the
allowable hours for this task by about 22 percent, in addition
to a 20 percent across-the-board reduction of the lodestar for
respondents’ partial success, as discussed above. We find no
abuse of discretion in the court’s handling of the motion to
compel.
The City contends respondents should not recover fees
for the motion because it was factually frivolous, rather than
merely unsuccessful. (See City of Sacramento v. Drew (1989)
207 Cal.App.3d 1287, 1303 [“A litigant should not be
penalized for failure to find the winning line at the outset,
29
unless the unsuccessful forays . . . are such that a reasonably
competent lawyer would not have pursued them”].) The City
has arguably forfeited this contention by failing to assert it
below. (See Perez, supra, 169 Cal.App.4th at 591-592.) In
any event, neither Judge Palazuelos (who denied
respondents’ motion) nor Judge Chalfant (who granted fees
for it) found the motion to be frivolous, and we decline the
City’s invitation to make such a finding on appeal.
5. Fees for Motion to Sever the Fourth Cause of
Action
a. Background
A few months before trial, respondents moved to sever
their fourth cause of action, which challenged the City’s
CEQA appeal procedures, so the court could rule on it before
deciding their other causes of action. They argued that
trying the fourth cause of action first would establish the
scope of evidence that might be cited at trial on the other
causes of action and lead to a more efficient resolution of the
remaining issues. The trial court denied this motion,
concluding that severing this cause of action would not serve
the interests of justice and judicial economy and that doing
so shortly before trial would unfairly prejudice appellants.
Respondents later sought fees for about 65 hours of
work relating to their motion to sever. In arguing that the
trial court should reduce the lodestar to reflect respondents’
partial success, the City argued that time spent on the
unsuccessful motion to sever should be attributed to the
30
unsuccessful fourth cause of action, and thus deducted from
the lodestar. As previously noted, the trial court did not
calculate the time spent on particular unsuccessful claims,
but instead reduced the lodestar amount by 20 percent to
reflect respondents’ partial success. It did not expressly
address respondents’ motion to sever.
b. Analysis
The City claims the court erred in failing to disallow all
time spent on respondents’ motion to sever because this
work related solely to the unsuccessful fourth cause of
action, which the City maintains was entirely distinct from
respondents’ successful claims. The City asserts that fees
may not be awarded for time spent on claims unrelated to
the successful claims.
In fact, contrary to the City’s claim, respondents’
motion to sever was filed in aid of their entire action,
including their successful CEQA claims. Respondents’
theory in support of severing the fourth cause of action was
that it would settle all questions about the scope of the
evidence and permit more efficient resolution of their
remaining claims. Nothing compelled the trial court to
attribute time spent on the motion to sever to the fourth
cause of action alone. Moreover, that the motion itself was
unsuccessful does not mean the court could not award
respondents fees for time spent on it. (See City of Los
Angeles, supra, 42 Cal.App.5th at 307.) As noted, the trial
court reduced the lodestar by 20% to account for
31
respondents’ partial success. We discern no abuse of
discretion.
As it argued with regard to the motion to compel, the
City argues the motion to sever should not entitle
respondents to fees because it was frivolous, rather than
merely unsuccessful. Here, too, the City arguably forfeited
this contention by failing to assert it below. (See Perez,
supra, 169 Cal.App.4th at 591-592.) Regardless, the City
rests its assertion of frivolousness solely on the trial court’s
finding that granting the motion shortly before trial would
unfairly prejudice appellants. Yet a finding that on balance,
a motion’s requested relief would unfairly prejudice the
opposing party, does not constitute a finding that the motion
was frivolous.
6. Fees for Attendance of City Council Meeting
a. Background
Respondents sought fees for their counsel’s attendance
of a June 2017 City council meeting. According to counsel’s
billing statements, their activity at the meeting included (1)
addressing the council about the boat-launch ramp’s
location, and (2) making a statement “to correct
misinformation” to a recent court filing by respondents,
among several other activities.
The City objected to any award of fees for this activity,
arguing it was unrelated to the case because it took place
months after the litigation commenced. The trial court
disagreed, ruling that respondents could reasonably bill for
32
hours that “causally sprang from the CEQA violations” they
alleged. It therefore awarded fees for counsel’s attendance of
the meeting.
b. Analysis
The City argues respondents’ counsel’s attendance at
the June 2017 City council meeting was not compensable. It
repeats its contention in the trial court that this activity was
unrelated to this case because it took place months after
respondents filed their petition, and it asserts that counsel’s
statement “to correct misinformation” concerned a
proceeding before the Coastal Commission that had nothing
to do with respondents’ claims in this case.
At least some of counsel’s activity at the meeting,
however, concerned a CEQA issue respondents targeted in
their petition: the location of the boat-launch ramp. The
City offers no authority for the position that any appearance
before the City council following the filing of the petition
could not be compensated. Moreover, even assuming the
Coastal Commission matter was entirely unrelated to this
case (something the City did not argue below), the City has
neither attempted to identify how much time counsel
dedicated to this matter, nor argued that the time counsel
reported for this meeting should be reduced due to
impermissible block-billing. Thus, the City has forfeited any
contention based on the subject matter of the Coastal
Commission proceeding. (See Sviridov v. City of San Diego
(2017) 14 Cal.App.5th 514, 521 (Sviridov).)
33
7. Fees for Untimely Comment Letters
a. Background
Very shortly before the City’s hearing on respondents’
administrative appeal, respondents submitted various
comment letters regarding the merits of their appeal and the
City’s appeal procedures. The City rejected these letters as
untimely under its appeal procedures, but also briefly
addressed some of respondents’ contentions on the merits.
Respondents later sought fees for time spent on these
comment letters. The City argued this work should not be
compensated because the letters were untimely. The trial
court agreed that untimely work should not be compensated,
but faulted the City for failing to “provide a precise sum of
fees attributable to this work,” and noted that the City also
addressed the merits of some of respondents’ arguments in
the comment letters. The court therefore awarded
respondents fees for time spent on the comment letters.
b. Analysis
The City claims the trial court erred in granting
respondents fees for work on the untimely comment letters.
It argues it should not be penalized for addressing the
untimely comments on their merits. However, the City fails
to address the other ground the trial court provided for
rejecting its objection to the award of fees for the comment
letters, namely, that the City had failed to provide a precise
sum attributable to this work. The City has therefore
34
forfeited its challenge to the trial court’s ruling. (See Ruelas
v. Superior Court (2015) 235 Cal.App.4th 374, 383 [trial
court’s judgment is presumed correct, and appellant has
burden to affirmatively demonstrate error].)
8. Excessive and Duplicative Hours for Particular
Filings
Appellants claim the trial court allowed respondents to
claim excessive and duplicative time for their petition and
first amended petition, opening and reply briefs, and fee
motion. They also maintain that some of counsel’s billing
was not credible, and that counsel engaged in impermissible
block-billing relating to the preparation of the reply brief.
As the BBR court explained: “It is not our role,
however, to second-guess the trial court on such matters as
whether the hours expended are justified by the product
produced . . . . The trial court was fully cognizant of the
quality of the services performed, the amount of time
devoted to the case and the efforts of counsel. [Citation.] We
reiterate that ‘“[t]he value of legal services performed in a
case is a matter in which the trial court has its own
expertise.”’” (BBR, supra, 203 Cal.App.4th at 874.) Here, the
trial court described the briefs, including respondents’, as
“incredibly thorough and well-constructed.” Nevertheless,
agreeing that some of respondents’ billing was excessive and
that it included impermissible block-billing relating to the
reply brief, the court reduced the lodestar accordingly. That
appellants would have preferred a greater reduction
35
provides no basis to reject the court’s assessment of
respondents’ filings and the time reasonably spent on them.
(See ibid.) Nor will we intervene in the court’s credibility
determinations. (See Christian Research Institute v. Alnor
(2008) 165 Cal.App.4th 1315, 1319 [appellate court may not
reweigh trial court’s determination of billing statements’
credibility].) Appellants fail to establish error in the court’s
determinations.
9. The Fee Enhancement
Appellants claim the trial court abused its discretion in
applying a 1.4 multiplier to the lodestar amount, arguing
respondents deserved no fee enhancement. As explained, a
trial court may adjust the lodestar figure based on factors
specific to the case to arrive at a fair market value for the
legal services provided. (BBR, supra, 203 Cal.App.4th at
870.) Relevant factors may include, inter alia, (1) the
novelty and difficulty of the questions involved, (2) the skill
displayed in presenting them, (3) the extent to which the
nature of the litigation precluded other employment by the
attorneys, (4) the contingent nature of the fee award, (5)
whether the attorneys received public or charitable funding
to bring lawsuits of this kind, and (6) whether an award
against a public entity would ultimately fall on the
taxpayers. (Ketchum, supra, 24 Cal.4th at 1134; Maria P. v.
Riles (1987) 43 Cal.3d 1281, 1294.)
The court found that the case was complex and raised a
novel issue involving a “rarely used provision” of CEQA. It
36
further found that respondents’ counsel “showed
commendable skill in presenting these issues and litigating
them.” The court then noted that respondents and counsel
agreed to a $90,000 fee cap and a substantially reduced
hourly rate, but that respondents were ultimately unable to
afford even the cap, paying counsel only about $66,000.
Because counsel bore much of the risk of failure, the court
concluded their fees were partially contingent on success.
These factors, the court found, warranted a fee
enhancement. The court considered whether the award
would likely fall on taxpayers (militating against an
enhancement), but concluded this was unlikely, as real
parties had agreed to indemnify the City for any attorney fee
award.5
Disputing the trial court’s conclusions, appellants
contend there was “nothing complex about this case,” which
“was a typical, run-of-the-mill CEQA action.” They also
argue the court gave too much weight to counsel’s skill,
given respondents’ limited success on the merits. Yet it was
the trial judge, not this court, who considered the parties’
briefing and evidence and issued an extensive written ruling
on the merits of respondents’ claims. We are neither
5 Appellants assert that respondents admitted in their
briefing below that the fee award was likely to fall on the
taxpayers, given disputes between real parties and the City.
They are mistaken. Respondents argued below that real parties
may attempt to avoid paying respondents, and suggested that the
City would be better positioned to compel real parties to pay.
37
inclined nor permitted to jettison the trial court’s assessment
of counsel’s skill and the complexity and novelty of the
claims, matters with which it was uniquely familiar. (See
Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 581
[calculation of attorney fee enhancements is highly
fact-specific matter best left to trial court’s discretion]; BBR,
supra, 203 Cal.App.4th at 873 [“‘The “experienced trial judge
is the best judge of the value of professional services
rendered in his court”’”].) We see nothing unreasonable in
the trial court’s assessment of the case’s difficulty, and again
note that the court was sufficiently impressed with counsel’s
work product to comment favorably on it.
Appellants claim that given the retainer agreement
between respondents and their counsel, the attorneys “took
practically no risk in filing this action.” Like the trial court,
we disagree. Respondents’ counsel spent about eighteen
months -- from November 2016 to May 2018 -- litigating the
merits of this action, and their compensable work yielded an
adjusted lodestar of about $429,000. It can hardly be said
that the roughly $66,000 counsel actually collected from
respondents, or the $90,000 cap under counsel’s original
agreement with respondents, eliminated counsel’s risk of
nonrecovery. The trial court did not abuse its discretion by
granting respondents a fee enhancement.
10. Joint and Several Liability
The City argues the trial court erred in holding it
jointly and severally liable with real parties for the fee
38
award. It asserts this ruling was inconsistent with the
court’s finding that the award was unlikely to fall on the
taxpayers because of the indemnity agreement between the
City and real parties.
There was no inconsistency. As discussed, in granting
a fee enhancement, the trial court concluded that the fee
award was unlikely to fall on the taxpayers because real
parties would be required to indemnify the City for its
payment of fees under the terms of their indemnity
agreement. Requiring the City to pay the fees, which it
should later be able to recover from real parties, presents no
conflict. It also makes sense: joint and several liability
would likely allow respondents to recover the fee award
without difficulty, even if real parties somehow attempt to
avoid paying; and given appellants’ indemnity agreement
and preexisting relationship, the City would likely be better
positioned to compel real parties to pay promptly. Finally, it
is in accord with the law. (See Friends of the Trails v.
Blasius (2000) 78 Cal.App.4th 810, 838 [“Treating the Code
of Civil Procedure section 1021.5 obligation of more than one
opposing parties as joint is consistent with the purposes of
that statute. If the obligation is apportioned in the sense
that it is not joint[,] the successful party faces greater
difficulty in collection of the judgment for attorney’s fees”].)
39
D. Appellants’ Challenge to Respondents’ Entitlement
to Costs
Appellants challenge the trial court’s award of costs to
respondents. They maintain that given respondents’ partial
success, the court abused its discretion in concluding
respondents were prevailing parties under section 1032.
Under that provision, a “prevailing party” entitled to costs
includes (1) a party with a net monetary recovery, (2) a
defendant in whose favor a dismissal is entered, (3) a
defendant where no party obtains any relief, and (4) a
defendant as against those plaintiffs who do not recover any
relief against that defendant. (§ 1032, subd. (a)(4).) “If any
party recovers other than monetary relief and in situations
other than as specified, the ‘prevailing party’ shall be as
determined by the court, and under those circumstances, the
court, in its discretion, may allow costs . . . .” (Ibid.)
It is undisputed that respondents obtained
nonmonetary relief but did not fall within the statute’s
enumerated circumstances, and thus whether they were
prevailing parties eligible to recover costs was a matter for
the trial court’s discretion. Under these circumstances,
courts have applied the same principles governing the
“successful party” determination under section 1021.5 to the
“prevailing party” determination under section 1032. (See
Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 183
[“The City’s contention with respect to costs is the same as
the one it advances on the ‘successful party’ test for the
recovery of fees, namely that the [petitioners] cannot be
40
regarded as prevailing parties . . . . We reject that argument
for the reasons previously stated”]; Sokolow v. County of San
Mateo (1989) 213 Cal.App.3d 231, 243-245, 251 [appellants
were prevailing parties entitled to costs under § 1032 for the
same reasons they were successful parties entitled to
attorney fees under § 1021.5]; California Common Cause v.
Duffy (1987) 200 Cal.App.3d 730, 752 [similar].) For the
same reasons discussed in connection with the attorney fee
award, the trial court did not abuse its discretion in
determining that respondents were prevailing parties
eligible for costs under section 1032.
E. The City’s Challenge to the Amount of Costs
1. Background
In preparing the administrative record for this action,
respondents’ counsel used volunteers to transcribe certain
administrative hearings. Ellis Raskin, one of respondents’
attorneys, then proofread the transcripts. Raskin also
assembled the administrative record and prepared the
accompanying index. Respondents later requested costs for
the preparation of the administrative record, including for
time Raskin spent on proofreading the transcripts. For
Raskin’s time, respondents sought his hourly billing rate. In
their motion to tax costs, appellants objected to Raskin’s rate
for time spent compiling the administrative record, arguing
this was a task for a paralegal. As to the transcripts,
appellants asked the trial court to disallow time Raskin
spent proofreading them, arguing respondents’ process was
41
wasteful. They did not object to Raskin’s billing rate for this
task.
Before the hearing on appellants’ motion to tax costs,
the trial court issued a tentative ruling that (1) reduced the
hourly rate for Raskin’s preparation of the record, concluding
it was unnecessary for an attorney to perform this task, but
(2) allowed the time Raskin spent proofreading administra-
tive hearing transcripts. At the ensuing hearing, the parties
discussed the compilation of the administrative record, with
the court reiterating its view that respondents were not
entitled to an attorney’s billing rate for this task. As the
parties proceeded to discuss the transcripts, the court stated
that proofreading the transcript was necessary, but asked:
“[D]oes it need to be a lawyer? Well, didn’t I pay him at
paralegal [rate]?” Real parties’ counsel replied that the
court’s tentative ruling awarded an attorney’s rate for this
task, and asked that it reduce the rate. The court
responded: “Mr. Raskin, I’m giving you a bonus here. I’m
not going to cut this rate.” The court then adopted its
tentative ruling, modified in a way not relevant here, as its
final ruling.
2. Analysis
On appeal, the City argues the trial court erred in
awarding respondents an attorney’s hourly rate for time
Raskin spent proofreading the transcripts prepared by
volunteers. Allowable costs under section 1032 must be
reasonably necessary to the conduct of the litigation rather
42
than merely convenient or beneficial and must be reasonable
in amount. (§ 1033.5, subd. (c)(2) & (3).)
The City presents no meaningful argument that
awarding an attorney’s rate for this task was inherently
erroneous; rather, its sole contention is that the court acted
arbitrarily because it had already found that a paralegal
could have performed the task but nevertheless refused to
reduce the awarded rate, choosing to give Raskin a “‘bonus.’”
The City has therefore forfeited any argument that awarding
an attorney’s rate for this task was categorically erroneous.
(See Sviridov, supra, 14 Cal.App.5th at 521.)
As to the argument it does make, the City is mistaken.
The trial court never found that it was not reasonably
necessary to have an attorney perform the proofreading task.
Rather, the court found that it was not reasonably necessary
to have an attorney compile the administrative record, and it
therefore reduced Raskin’s rate for that task. As to the
proofreading task, the court merely questioned whether it
was reasonably necessary to have an attorney perform it.
Given that the court declined to reduce the awarded rate for
this task, we presume the court determined it was. (See
§ 1033.5; People v. Bush (2016) 245 Cal.App.4th 992, 1002
[trial court presumed to follow the law].) The City may not
use the court’s comment at the hearing to impeach the
judgment, which discloses no error. (See, e.g., Jespersen,
supra, 114 Cal.App.4th at 633.)
43
DISPOSITION
The trial court’s orders awarding attorney fees and
costs are affirmed. Respondents are awarded their costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
44