United Homeowners Assn. v. Peak Capital Investments CA2/4

Filed 3/24/22 United Homeowners Assn. v. Peak Capital Investments CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
UNITED HOMEOWNERS B308682
ASSOCIATION II et al.
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BS172990)
v.
PEAK CAPITAL INVESTMENTS et
al.,
Real Party in Interest and
Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Mitchell L. Beckloff , Judge. Affirmed.
Ervin, Cohen & Jessup, Ellia M. Thompson, Kimberly D.
Lewis, Allan B. Cooper for Appellants.
Rodrigo A. Castro-Silva, County Counsel, Starr Coleman
Assistant County Counsel, Keever Anya Rhodes Muir, Deputy
County Counsel for Respondent County of Los Angeles.
Strumwasser & Woocher, Fredric D. Woocher, Beverly
Grossman Palmer, Julia Michel for Plaintiffs and Respondents
United Homeowners Association II.
INTRODUCTION
United Homeowners Association II (UHA) filed a petition
for writ of mandate under CEQA1 challenging approval of a
condominium project proposed by real parties in interest Peak
Capital and The Bedford Group (Peak/Bedford). UHA was
successful on one part of its challenge, in that the superior court
issued a writ of mandate and ordered the County of Los Angeles
and the Los Angeles County Board of Supervisors (collectively,
the County) to withdraw approval of the project and complete a
limited environmental impact report (EIR) with respect to traffic
impacts. The superior court rejected UHA’s additional CEQA
challenges, including those involving air quality, hazardous
waste, and aesthetics.
The court then granted UHA’s motion for attorney fees
under Code of Civil Procedure section 1021.5, and awarded UHA
fees of $118,089.00. Peak/Bedford appeals that award, asserting
that (1) UHA is not entitled to fees because it neither enforced an
important right affecting the public interest nor conferred a
significant benefit on a large class of persons, and (2) the court
erred by failing to clearly show how it reached the figure of
$118,089.00. We find no error and affirm.
1 The California Environmental Quality Act (Pub. Resources
Code, § 21000 et seq.) All further statutory references are to the
Public Resources Code unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition, trial, and ruling
UHA filed a petition for writ of mandate on April 8, 2018
and an amended petition on December 11, 2018 alleging the
following facts.2
The project at issue is the proposed construction of an 88-
unit, five-story luxury condominium complex on a 1.84-acre
parcel in the View Park-Windsor Hills neighborhood, an
unincorporated area of Los Angeles County. The property, 5101
South Overhill Drive, is across the street from the Inglewood Oil
Field, Kenneth Hahn State Recreation Area, Norman O. Houston
Park, the Stocker Corridor Trail, and Windsor Hills Magnet
School. UHA alleged that “[t]he proposed Project includes
139,281 square feet of living space and 206 subterranean spaces
used for vehicle parking within a five-story structure 65 feet in
height and three levels of subterranean parking. The Project also
anticipates a pool and spa area with landscaping.”
Real parties Peak/Bedford applied for approval to build the
project. In general, “[w]hen a local agency considers the
environmental effects of a proposed project, CEQA provides three
options. The agency must prepare and certify the completion of
an EIR if the project ‘may have a significant effect on the
environment.’ (§ 21151, subd. (a), italics added.) If the agency
determines the project will not have a significant effect on the
environment, it must prepare a negative declaration to that
2 We remind counsel on both sides that each brief must
reference the record with the “volume and page number of the
record where the matter appears.” (Cal. Rules of Court, rule
8.204(a)(1)(C) (emphasis added).)
3
effect. (§ 21080, subd. (c)(1); [Cal. Code Regs., tit. 14], § 15064,
subd. (f)(3).[ ] Finally, if the project has potentially significant
environmental effects but these effects will be reduced to
insignificance by mitigation measures that the project’s
proponent has agreed to undertake, CEQA requires the local
agency to prepare a mitigated negative declaration [(MND)].
(§ 21080, subd. (c)(2); [Cal. Code Regs., tit. 14], § 15064, subd.
(f)(2).)” (Moss v. County of Humboldt (2008) 162 Cal.App.4th
1041, 1048.)
The County Regional Planning Commission approved the
project in August 2017 with an MND, and issued a conditional
use permit (CUP). UHA, “a California nonprofit mutual benefit
corporation” that is “comprised of approximately 11,000 general
members,” appealed the decision to the Board of Supervisors,
which upheld the findings of the commission.
UHA filed its petition for writ of mandate against the
County as respondent and Peak/Bedford as real party in interest.
Because the amended petition is relevant to the appeal, we focus
on the allegations in that version. UHA alleged three causes of
action: violation of CEQA, injunctive relief, and declaratory relief.
Under the CEQA cause of action, UHA alleged that six aspects of
the project failed to meet CEQA requirements: (1) the MND’s
traffic study was deficient and failed to adequately assess the
project’s traffic impacts; (2) an EIR was required to address air
quality impacts on nearby residents and the school; (3) hazards
and hazardous waste were inadequately evaluated, in light of the
project’s proximity to the oil field; (4) the MND did not evaluate
aesthetics and the blockage of neighboring homes’ views; (5) the
MND failed to adequately evaluate greenhouse gas impacts; and
(6) impacts on land use were inadequately analyzed. UHA
4
prayed for a peremptory writ of mandate, an injunction, costs,
and attorney fees.
The parties filed briefs, and the court held a hearing. UHA
abandoned its contentions regarding hazardous waste and
greenhouse gases. The court held in favor of UHA in part.
Regarding traffic, the court found that the project’s traffic
engineers failed to account for a nearby redevelopment project.
The court stated, “There is substantial evidence that had an
analysis of the cumulative effect of the Baldwin Hills Crenshaw
Plaza Redevelopment Project at LaBrea and Slauson Avenues
been included with the Project, the PM peak traffic Level of
Service would drop to an F,” the lowest level of service.3 The
court found that UHA failed to meet its burden on its remaining
contentions under CEQA. In a later minute order, the court
stated, “As the court found the County’s actions and
determinations were justified as to Air Quality, Land Use and
Aesthetics but not as to Traffic and Circulation, the County shall
prepare an Environmental Impact Report (EIR) addressing the
significance of environmental impacts regarding Traffic and
Circulation.”
The court entered judgment granting a writ of mandate
and directing the County to “set aside ‘the Project’s entitlements
(a conditional use permit and a vesting tentative tract map),’”
“set aside the adoption of the Mitigated Negative Declaration as
to impacts from traffic and circulation,” “prepare an
3 “Level of service is a measure of traffic congestion at
intersections, which ranges from A (little or no delay) to F
(extreme traffic delay).” (American Canyon Community United
for Responsible Growth v. City of American Canyon (2006) 145
Cal.App.4th 1062, 1080.)
5
Environmental Impact Report in full compliance with [CEQA] as
to traffic and circulation,” and “refrain from taking any action to
approve or otherwise permit the construction of the Project or a
substantially similar project until after fully complying with this
Writ of Mandate.” The court also stated in the judgment that
UHA was entitled to recover its costs and attorney fees.
B. UHA’s motion for attorney fees
UHA filed a motion requesting costs and attorney fees
under Code of Civil Procedure, section 1021.5 (section 1021.5),
which states in part, “Upon motion, a court may award attorneys’
fees to a successful party against one or more opposing parties in
any action which has resulted in the enforcement of an important
right affecting the public interest if: (a) a significant benefit,
whether pecuniary or nonpecuniary, has been conferred on the
general public or a large class of persons, (b) the necessity and
financial burden of private enforcement, or of enforcement by one
public entity against another public entity, are such as to make
the award appropriate. . . .”
UHA requested attorney fees totaling $169,651.50 for
approximately 230 hours, which included an estimated $22,000
for preparing and arguing the motion for attorney fees. UHA
argued that it was entitled to an award of attorney fees under
section 1021.5 because it enforced “an important public right and
benefitting the residents of Windsor Heights, View Heights, View
Park, and Ladera Heights, as well as in other adjacent and
nearby areas in the City and County of Los Angeles.” UHA
asserted that it had “achieved its objectives: the project’s
approvals were rescinded and invalidated, and no future project
can be approved without an adequate environmental review
under CEQA.” UHA noted that “[i]n the CEQA context . . .
6
actions requiring a governmental agency to analyze or reassess
environmental impacts associated with a proposed project confer
a significant benefit.” (Keep Our Mountains Quiet v. County of
Santa Clara (2015) 236 Cal.App.4th 714, 737.)
In addition, UHA asserted that the fee award requested
was reasonable. Lead counsel Beverly Grossman Palmer stated
in her declaration that the requested fees included “a total of 230
hours of combined attorney time, of which 151.3 hours were billed
by myself at the hourly rate of $695, and 78.7 hours were billed
by Dale Larson (now a partner) at the senior associate hourly
rate of $540,” plus the amount for the fees motion, which Palmer
said would be supplemented in the reply. Palmer attached billing
records showing the time she and Larson worked on the case.
Peak/Bedford opposed the motion for attorney fees; the
County joined. Peak/Bedford argued that UHA “either
abandoned or lost on almost all of its[ ] CEQA challenges to the
Project,” in that the “sole relief” was that an EIR must be
prepared regarding traffic only, and therefore UHA “failed to
achieve its[ ] primary objective of stopping the entire Project in
its tracks. It did not even succeed in reducing the Project’s size,
scope or layout.[ ] Instead, the Project remains exactly as it was
when initially approved. Therefore, [UHA] cannot establish that
it was a successful party.” Peak/Bedford further asserted that
the litigation did not confer a significant benefit on the general
public or a large class of persons. Finally, Peak/Bedford asserted
that the requested fees should be reduced due to UHA’s limited
success in the case, because UHA’s counsel’s hourly rates were
too high, and because counsel inappropriately block-billed.
In its reply, UHA asserted that the fees requested were
reasonable. UHA also asserted that block billing did not require
7
a reduction. UHA reduced its request for fees relating to the fees
motion from $22,000 to $14,803.50.
In a written tentative ruling, the court stated that it was
inclined to grant the motion and award UHA $89,286.30 in
attorney fees. The court found UHA to be the successful party,
and that the action conferred a significant benefit on the public or
a large class of persons. The court found that Palmer’s and
Larson’s rates were reasonable, but reduced recovery for several
of the block-billed entries. The court further stated that “a
reduction of 40 percent for [UHA]’s limited success on the
Petition is appropriate.” The court also reduced the fees
requested for the attorney fees motion.
At the hearing on the motion, UHA argued the 40 percent
reduction was excessive. Peak/Bedford argued that an even
further reduction was warranted based on UHA’s limited success.
The court took the motion under submission.
In a written ruling, the court granted the motion and
awarded UHA attorney fees of $118,089.00. The court found that
UHA was the successful party in that it “achieved actual and
practical relief in its challenge to the Project. [UHA] achieved
enforcement of important environmental statutory protections by
ensuring compliance by the County with its CEQA obligations.”
The court found that the litigation concerned the enforcement of
CEQA, which itself involved “important public rights affecting
the public interest,” and, “The result of [UHA’s] action requires
the County further identify and analyze significant effects on the
environment with regard to traffic and circulation in the context
of an environmental impact report. Such a result is a significant
benefit and effectuates an important statutory policy.” Moreover,
“enforcing CEQA’s requirements for an 88-unit condominium
8
building in a[n] urban residential area not only affects the
immediate neighborhood, it affects the residents of Windsor
Heights, View Heights, View Park, and Ladera Heights,” and
therefore “the litigation conferred a significant benefit on a large
class of persons.”
The court further found that UHA’s claimed attorney fees
were “to some extent unreasonable and require reductions.” As
in the tentative, the court found the hourly rates of Palmer and
Larson reasonable. However, the court agreed with Peak/Bedford
that block billing is “problematic,” and, in footnote 5 of the
written order, noted each of the block-billed entries that
Peak/Bedford cited as inappropriate. The court also noted that
Peak/Bedford objected to “duplicative billing—occasions when
both [of UHA’s] attorneys participated in a conference and each
billed separately for the time.” In footnote 6, the court listed each
instance of duplicative billing Peak/Bedford cited. The court also
noted that attorney Larson billed 2.2 hours for a trial setting
conference on a day when no such conference was scheduled.
The court noted that UHA convinced the court at oral
argument that the 40 percent reduction based on limited success
was not appropriate. The court stated that UHA “narrowly
prevailed on a single issue pertaining to the mitigated negative
declaration, despite raising challenges on multiple, separate
grounds.” However, the court stated that it was “a significant
issue, [and] ultimately the court required the County to prepare
an environmental impact report only as to the traffic and
circulation element.” The court looked at the total time billed for
the petition, amended petition, and briefing, and found that not
all time was “reasonable” in light of UHA’s limited success. The
9
court also found that the amount requested for the fees motion
was excessive.
The court concluded, “Based on the foregoing, the court
makes reductions in hours claimed to reflect a reasonable
attorney’s fee award. As described above, the court has made
reductions for block billing (see footnote 5 for specific billing
entries), duplicative efforts by counsel (see footnote 6 for specific
billing entries), limited success (as to petition allegations,
briefing and related activities), Attorney Larson’s billing error
and an excessive claim for the attorney’s fees motion. The court
finds Petitioner is entitled to reasonable attorney’s fees in this
matter in the amount of $118,089.” The court did not further
explain how it reached this total.
Peak/Bedford timely appealed. The County did not appeal.4
DISCUSSION
Peak/Bedford asserts that the court erred in finding that
UHA was entitled to an award of attorney fees, and in calculating
the amount of those fees awarded. “The determination whether a
party has met the requirement for an award of fees and the
reasonable amount of such an award are matters best decided by
the trial court in the first instance.” (Sweetwater Union High
School Dist. v. Julian Union Elementary School Dist. (2019) 36
4 The County filed a respondent’s brief purporting to join
Peak/Bedford’s opening brief, and asking that the court’s ruling
be reversed. However, as a general rule, respondents who fail to
file a cross-appeal cannot claim error on appeal. (See, e.g.,
Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223
Cal.App.4th 1105, 1121.) The County’s contentions, which
consist of little more than joining the opening brief, have not been
considered.
10
Cal.App.5th 970, 980 (Sweetwater).) We review a fee award
under the abuse of discretion standard, and “presume the trial
court properly applied the law and acted within its discretion
unless the appellant affirmatively shows otherwise.” (Canyon
Crest Conservancy v. County of Los Angeles (2020) 46 Cal.App.5th
398, 409 (Canyon Crest).)5 We find no error and affirm.
A. Entitlement to attorney fees
Under section 1021.5, a court may award attorneys’ fees to
a “successful party” in an action which has “resulted in the
enforcement of an important right affecting the public interest” if
a “significant benefit . . . has been conferred on the general public
or a large class of persons.” (§ 1021.5.) “Thus, to obtain fees
under section 1021.5, the moving party must establish all of the
following: (1) he or she is a ‘successful party,’ (2) the action has
resulted in the enforcement of an important right affecting the
public interest, (3) the action has conferred a significant benefit
on the public or a large class of persons, and (4) an attorney fees
award is appropriate in light of the necessity and financial
burden of private enforcement.” (Hall v. Department of Motor
Vehicles (2018) 26 Cal.App.5th 182, 188.)
Here, Peak/Bedford challenges the second and third
elements, asserting that the litigation neither resulted in the
enforcement of an important right affecting the public interest,
nor conferred a significant benefit on the public or a large class of
5 Peak/Bedford argues in its opening brief that the court “did
not apply the proper test” and suggests a different standard of
review may apply. In its reply, however, Peak/Bedford
acknowledges the abuse of discretion standard applies.
11
persons.6 UHA asserts that the trial court’s ruling on these
elements was correct. We consider each element separately.
1. Enforcement of an important right affecting the public
interest
Peak/Bedford asserts that UHA did not meet the second
element because it “did not prompt a significant change in the
state of affairs,” and “[i]t is pure speculation as to whether a new
traffic study will make any new or additional findings.” UHA
argues the trial court did not abuse its discretion in finding in
UHA’s favor on this element.
To determine whether an “important” right is at issue, a
court must “exercise judgment in attempting to ascertain the
‘strength’ or ‘societal importance’ of the right involved.”
(Woodland Hills Residents Assn., Inc. v. City Council (1979) 23
Cal.3d 917, 935 (Woodland Hills).) When the right at issue is
statutory, “courts should generally realistically assess the
significance of that right in terms of its relationship to the
achievement of fundamental legislative goals.” (Id. at p. 936.)
6 As to the first element, Peak/Bedford asserts in passing
that UHA was not a successful party because it “did not prompt a
significant change in the state of affairs,” in that “[t]he only
‘change’ that occurred is that the traffic study must be updated.”
This brief argument is copied verbatim from Peak/Bedford’s
opposition below, and it neither discusses the court’s ruling on
this point nor argues that the trial court’s finding constituted an
abuse of discretion. We therefore find this contention forfeited.
(See, e.g., Benach v. County of Los Angeles (2007) 149
Cal.App.4th 836, 852 [the court will not consider contentions
lacking “pertinent argument or an attempt to apply the law to
the circumstances of [the] case”].)
12
Peak/Bedford focuses less on the rights at issue in the
litigation and more on the results, asserting that “no government
policy changes were made as a result of this lawsuit,” no
“untoward acts or improper agency policies” were uncovered, and
it is “pure speculation as to whether a new traffic study will make
any new or additional findings.” The trial court identified the
important right as the enforcement of CEQA, and “as a general
matter, litigation alleging CEQA violations can involve important
rights affecting the public interest.” (Canyon Crest, supra, 46
Cal.App.5th at p. 410; see also Concerned Citizens of La Habra v.
City of La Habra (2005) 131 Cal.App.4th 329, 335 (CCLH)
[“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”].)
Nevertheless, “enforcement efforts alone do not justify an
attorney fee award; the benefit gained must be significant and
widespread.” (CCLH, supra, 131 Cal.App.4th at p. 336; see also
Woodland Hills, supra, 23 Cal.3d at p. 939 [“the public always
has a significant interest in seeing that legal strictures are
properly enforced” but “the Legislature did not intend to
authorize an award of attorney fees in every case involving a
statutory violation”].) Thus, in a case where the benefit to the
public is “the proper enforcement of the law,” the “significant
benefit and important right requirements of section 1021.5 to
some extent dovetail.” (La Mirada Avenue Neighborhood Assn. of
Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149,
1158.) We therefore turn to the benefit element.
13
2. Conferring a significant benefit on the public or a
large class of persons
Peak/Bedford contends the litigation did not confer a
“benefit” in that UHA succeeded only in necessitating a new
traffic report, which might not have any practical impacts on the
project. It also asserts that the litigation did not affect “the
public or a large class,” because UHA “is a small neighborhood
group comprised of approximately 17 residents” who tried but
failed to “stop the Project” entirely. UHA correctly points out
that the trial court rejected this contention, finding that
Peak/Bedford’s characterization “greatly understates the impact
of a project of this size in a neighborhood of single family
residences,” and the “traffic and circulation impact extends well
beyond the Project and its immediate neighbors.” Peak/Bedford
argues that requiring a new traffic study is not tantamount to a
finding that the project actually would impact traffic in the
surrounding areas.
“[T]he ‘significant benefit’ that will justify an attorney fee
award . . . may be recognized simply from the effectuation of a
fundamental constitutional or statutory policy.” (Woodland Hills,
supra, 23 Cal.3d at p. 939.) A court should “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.” (Id. at pp. 939-940.) “[T]he extent of the public
benefit need not be great to justify an attorney fee award.”
(RiverWatch v. County of San Diego Dept. of Environmental
Health (2009) 175 Cal.App.4th 768, 781.)
Here, the litigation invalidated the MND and required the
County to complete an EIR regarding traffic. Although the
14
details of the traffic study are not in the record, the study and
EIR were relevant to at least one heavily traveled intersection.
In the judgment, the court noted that the intersection of LaBrea
and Slauson already had a level of service of D in afternoon peak
hours, and had the traffic study for the project been done
differently, it might have shown a level of service of F. In its
ruling on the attorney fee motion, the court held that the traffic
issue would affect a significant number of people, including “the
residents of Windsor Heights, View Heights, View Park, and
Ladera Heights.” The residents of these areas, plus any other
people using the heavily traveled intersection of LaBrea and
Slauson, would receive the benefit of ensuring the County
complied with CEQA in approving the project.
Peak/Bedford compares this case to CCLH, supra, 131
Cal.App.4th 329. There, a neighborhood organization, CCLH,
challenged the approval of a proposed Costco warehouse and
retail store in the City of La Habra. “CCLH alleged six causes of
action, one of which was the failure to comply with [CEQA] in
several respects. While five of the causes of action were
unsuccessful, the CEQA challenge achieved partial success: The
superior court agreed with one of the several alleged CEQA
defects, finding that the mitigated negative declaration certified
by the City needed revision.” (CCLH, supra, 131 Cal.App.4th at
p. 331.) The trial court agreed with CCLH that the MND failed
to adequately assess potential traffic impacts of the project and
ordered the city to reassess the traffic issue; however, the court
stopped short of requiring the city to complete an EIR. (Id. at p.
333.)
CCLH then sought attorney fees under section 1021.5. The
court denied the request, and CCLH appealed. The Court of
15
Appeal affirmed the ruling, stating, “[T]he trial court assessed
the circumstances of the case and determined the gains obtained
by CCLH did not confer a significant benefit on a large class of
people. Having heard the evidence in support of CCLH’s
challenges to the MND, it rejected all of the claimed defects
except one. The trial court agreed the MND did not adequately
support the conclusion that the effects of cut-through traffic were
mitigated, but it felt the inadequacy was a ‘minute blemish’ that
could be repaired.” (CCLH, supra, 131 Cal.App.4th at p. 335.)
The court noted that to find a “significant benefit” on the public
or a large class of persons, “the benefit gained must be significant
and widespread. The trial court determined it was not. On this
record, we cannot conclude that the trial court’s determination
was a prejudicial abuse of discretion.” (Id. at p. 336.)
Peak/Bedford argues here, as it did below, that CCLH is
“directly on point.” It asserts that in issuing the writ and
ordering the County to complete an EIR, the court “did not find
that there was an environmental impact related to traffic, or even
that it was likely that there was an impact.” However, the
completion of an EIR for the purposes of assessing traffic impacts
of the project is itself a benefit to the public using the streets near
the project. No further effect on the project is required. (See,
e.g., RiverWatch v. County of San Diego Dept. of Environmental
Health, supra, 175 Cal.App.4th at p. 782 [“The significant benefit
criterion is satisfied where, as here, the litigation permits
affected parties to provide additional input on remand”]; Keep
Our Mountains Quiet v. County of Santa Clara, supra, 236
Cal.App.4th at p. 739 [“The trial court reasonably could have
concluded this suit conferred a significant benefit on the general
16
public by requiring the County to further assess . . . ‘important
environmental consideration[s].’”].)
Peak/Bedford has not demonstrated that the trial court
abused its discretion in finding that UHA was entitled to an
award of attorney fees under section 1021.5. We therefore turn
to Peak/Bedford’s contentions about the amount of the fee award.
B. Amount of fee award
UHA originally requested attorney fees totaling
$169,651.50 for approximately 230 hours of work.7 The court
reduced the award based on (1) UHA’s limited success, (2) block
billing, (3) duplicative billing, (4) Larson’s erroneous bill for the
trial setting conference (striking 2.2 hours, $1,188), and (5) an
excessive amount requested for the fees motion (awarding $9,880
rather than the $22,000 initially requested). The court was only
specific about the hours and amounts for the last two of these
categories. The court discussed UHA’s limited success, but did
not specify how much it was reducing the fee award accordingly.
And although the court listed in footnote 5 the block-billed
entries to which Peak/Bedford objected and listed in footnote 6
the duplicative bills to which Peak/Bedford objected, the court did
not specify which of these entries, if any, it was reducing or
7 “Attorney fee awards are based on the lodestar, i.e., the
number of hours reasonably expended multiplied by the
reasonable hourly rate.” (Save Our Uniquely Rural Community
Environment v. County of San Bernardino (2015) 235
Cal.App.4th 1179, 1183 fn. 1 (SOURCE).) A court may reduce
the amount awarded based on a party’s degree of success or if the
court believes the billing is unjustly inflated. (Id. at pp. 1185-
1186.)
17
striking. The court awarded UHA attorney fees of $118,089.00,
over $50,000 less than UHA requested.
Peak/Bedford challenges several aspects of the court’s
attorney fee award, but each argument comes down to the
contention that the trial court failed to clearly explain how it
arrived at the final amount awarded. Peak/Bedford notes that
although the court stated it was reducing the fee award for the
factors listed above, for most of those factors the court did not
explain how many hours were being subtracted. And adding the
objectionable bills together (the block-billed entries, the
duplicative bills, the erroneous trial setting conference, and the
reduction for the fees motion) amounts to $66,952.00— more than
the court’s reduction of $51,562.50. Peak/Bedford asserts that
these totals suggest the court did not actually reduce the fee
award for UHA’s limited success, despite stating that it did so.
Peak/Bedford asserts, “Although the Trial Court undertook a
cursory analysis of the hours expended, it never arrived at a
logical or reasonably defined conclusion that supports the
ultimate fee awarded.”
However, a court’s failure to provide a “reasoned
explanation” for an attorney fee award does not constitute
reversible error; a superior court is not required to issue a
statement of decision for a fee award. (Ketchum v. Moses (2001)
24 Cal.4th 1122, 1140.) “[W]e cannot reverse an attorney fee
award solely for lack of an explanation by the trial court. We can
reverse only if the record contains some indication that the trial
court considered improper factors or did, indeed, simply snatch
its award ‘from thin air.’” (SOURCE, supra, 235 Cal.App.4th at
pp. 1189-1190; see also Gorman v. Tassajara Development Corp.
(2009) 178 Cal.App.4th 44, 67 (Gorman) [“The absence of an
18
explanation of a [fee award] ruling may make it more difficult for
an appellate court to uphold it as reasonable, but we will not
presume error based on such an omission”].)
Peak/Bedford argues that because the court’s math does not
add up, it essentially snatched the amount “from thin air” and
therefore abused its discretion in determining the fee award.
Peak/Bedford relies on Gorman, supra, 178 Cal.App.4th 44, in
which the court reversed and remanded a fee award because
“despite close study of the record,” the Court of Appeal was
“unable to surmise a reasonable explanation” for the amount
awarded. (Id. at p. 53.) There, the plaintiffs, as prevailing party,
“requested attorney fees of $1,350,538.83[ ] and costs in excess of
$266,561.96, including the fees and costs for filing their motion. .
. . After a contested hearing on their motion, in a 27-word order
the trial court awarded plaintiffs ‘reasonable attorneys’ fees of
$416,581.37 and reasonable costs of $142,432.46.’” (Id. at p. 53.)
The plaintiffs appealed.
The Court of Appeal noted that the trial court’s award of
fees was “a little under 61 percent of [the] lodestar amount.” The
court was confused because the precise amount of the award
“suggests that it is the product of some mathematical
computations. We have tried in vain for days to recreate this
result by means of various formulas.” (Id. at p. 99.) The court
continued, “[A]fter much puzzlement and frustration, we have
been unable to surmise any mathematical or logical explanation
for the trial court’s award of $416,581.37. Instead, the number
appears to have been snatched whimsically from thin air. It is
the essence of arbitrariness to make an award of attorney fees
that cannot be justified by the plaintiffs’ request, the supporting
bills, or the defendant’s opposition. We are unable to ascertain a
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reasonable basis for the trial court’s reduction of the lodestar
amount.” (Id. at p. 101.) The court concluded, “It is not the
absence of an explanation by the trial court that calls the award
in this case into question, but its inability to be explained by
anyone, either the parties or this appellate court. We are
compelled to conclude that there is no reasonable connection
between the lodestar amount and the trial court's award.” (Ibid.)
Gorman’s approach was questioned by the court in
SOURCE, supra, 235 Cal.App.4th 1179. In SOURCE, the
plaintiff community group was the prevailing party in a CEQA
case. It sought $231,098 in attorney fees; the trial court awarded
$19,176. (Id. at p. 1182.) The group appealed, and relying on
Gorman, argued in part that the trial court’s failure to articulate
its reasoning for the reduction mandated reversal. (Id. at p.
1189.) The Court of Appeal rejected this argument, stating, “We
respectfully disagree with Gorman’s analysis. In our view, the
precision of the amount awarded [in Gorman] indicates that
rather than acting arbitrarily, the trial court applied some
rational calculation, even though the appellate court could not
discern what it was.” (Id. at p. 1189.) Turning to the case before
it, the Court of Appeal in SOURCE found that reversal was not
warranted because “although the [trial] court did not state the
lodestar amount or explain how it arrived at the amount
awarded, it did make it clear that it intended to substantially
reduce the fees based on what it saw as outrageous overbilling.”
(Id. at p. 1190.) The trial court articulated several “legitimate
reasons” for reducing the fee award, and the Court of Appeal
concluded, “Because the record shows that the court acted for
legitimate reasons, we cannot find an abuse of discretion simply
because it failed to make its arithmetic transparent.” (Ibid.)
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This case is more like SOURCE than Gorman. Here, the
trial court articulated multiple reasons for reducing the attorney
fee award, even though it did not show its calculations. The court
considered the specific allegations in UHA’s petition, noting, for
example, that UHA had abandoned its greenhouse gas and land
use allegations, but its “aesthetics challenge” was “strong,” even
though it was not successful. The court closely reviewed the
billing records, and observed that UHA’s attorneys billed about
35 hours for drafting the petition and amended petition, and
about 70 hours on the opening and reply briefs. Thus, although
Peak/Bedford argues that the court failed to undertake “a careful
compilation of the time spent and reasonable hourly
compensation of each attorney . . . involved in the presentation of
the case” (Serrano v. Priest (1977) 20 Cal.3d 25, 48), the record
does not support this contention. The court did not articulate
how much it was reducing the award based on UHA’s limited
success, but it was not required to. “In awarding attorney fees in
a lesser amount than requested, trial courts are not required to
specify each and every claimed item found to be unsupported or
unreasonable.” (Gorman, supra, 178 Cal.App.4th at p. 67.)
We are also not persuaded by Peak/Bedford’s contention
that the court intended to reduce the fee award by the total of the
block-billed entries listed in footnote 5, and therefore the court’s
math does not add up. Peak/Bedford argues that the court’s order
“directs the parties to ‘see footnote 5 for specific [block] billing
entries’ leading a party to believe that all $41,169.50 was struck.”
However, footnote 5 explicitly says it is a list of billing entries
Peak/Bedford—not the court—identified as “problematic.” The
court’s order also stated that “several of the block billing entries
must be reduced”; it did not say all identified block-billed entries
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would be stricken. Again, the court’s failure to specify which
block-billed entries were reduced or stricken was not an abuse of
discretion.
In short, Peak/Bedford has failed to demonstrate that the
trial court’s award of attorney fees to UHA, or the amount of fees
awarded, constituted an abuse of discretion.
DISPOSITION
The attorney fee award is affirmed. UHA is entitled to its
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
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