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Posts Tagged ‘attorney fees’


Public Interest Standing Not Automatically Precluded by Commercial Interest, Private Attorney General Doctrine Fee Award Upheld

Wednesday, November 7th, 2018

No billboards are visible from one of the City of Pomona’s busiest highway interchanges. (AARoads)

In Citizens for Amending Proposition L. v. City of Pomona, (2018) Cal.App.LEXIS 1014, the Second District Court of Appeal held an attorneys’ fees award, pursuant to Code of Civil Procedure section 1021.5, was appropriate where a residents’ group’s action to enforce a voter-approved proposition prohibiting additional billboards in the City of Pomona (City) had standing and conferred an important public interest of significant benefit, was necessary, and was financially burdensome for the group.

In May 1993, the City entered into an agreement with Regency Outdoor Advertising, Inc. (Regency) to erect and manage billboards along a City highway. In November 1993, City voters passed a ballot initiative, Proposition L, which prohibited the construction of additional billboards and grandfathered in already-existing agreements. In June 2014, the City’s agreement with Regency expired by its terms while the City was negotiating to extend it. In July 2014, the City and Regency entered into an agreement purporting to amend the 1992 agreement, including construction of digital billboards. Citizens for Amending Proposition L and Vernon Price (Citizens) filed suit against the City alleging that the July agreement was passed in violation of Proposition L.

The trial court held that the July agreement was in fact a new agreement enacted in violation of Proposition L. Because the City did not adopt the agreement until after the original agreement had expired, it was a new agreement subject to the rules, regulations, and official policies in effect at the time of its execution, July 2014.

Citizens moved for attorney’s fees pursuant to Code of Civil Procedure section 1021.5, the private attorney general doctrine. They asked for $189,990, representing 389.8 hours of work at a rate of $500 per hour. They also requested that a multiplier of three be employed in the calculation to account for the complexity of the case, their complete victory, and other factors. Thus, the total fee request was for $569,700. At its discretion, the trial court found that Citizens met the statutory criteria for Section 1021.5 and granted the motion. However, the number of hours billed and the billing rate were found to be excessive. Accordingly, the trial court reduced the award to 250.67 hours at a rate of $300 per hour. The trial court further found that there was no basis for enhancing the fees with a multiplier. As such, the trial court awarded $75,200.40 to Citizens. The City timely appealed the award.

On appeal, the Court reviewed the City’s claim that Citizens lacked standing to bring the mandamus action. The City claimed that Citizens lacked a beneficial interest in the litigation, equivalent to the Federal “injury in fact” test. This must be “direct and substantial.” The Court found no evidence that Citizens experienced any actual, imminent, or particularized invasion of a legally protected interest as a result of the City’s adoption of the ordinance.

The City then claimed that the public interest exception to the beneficial interest requirement did not apply to Citizens’ mandamus action. Public interest standing is established where “the object of the mandamus is to procure the enforcement of a public duty.” Reviewing the trial court’s decision for an abuse of discretion, the Court found that Citizens indeed had public interest standing where “the duty is sharp and the public need [for enforcement] is weighty.” Citizens specifically alleged that the City violated its own municipal law, a claim with a “sharp” public interest. Further, the record showed that, absent Citizens’ intervention in the negotiations, billboards might have been constructed without broad public awareness of any potential issue, thus demonstrating a “weighty public need.”

The Court specifically dismissed the City’s claim that Citizens’ personal interest in the suit precluded standing, as it did for the plaintiffs in Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223. First, there was no evidence that Vernon Price or Citizens for Amending Proposition L advanced a commercial interest in bringing the suit. Vernon Price was an individual living within the City and the group was an unincorporated association of City residents; neither situation demonstrated an individualized interest. Even so, following the holding in SJJC Aviation Services, LLC v. City of San Jose (2017) 12 Cal.App.5th 1043, 1058, the Court held that “a personal objective is one factor the court may consider when weighing the propriety of public interest.” The Court warned that to rule otherwise would be impractical as “truly neutral parties are unlikely to bring citizen suits.”

The Court separately held Citizens for Amending Proposition L had organizational standing. Following the holding in San Francisco Apartment Association v. City and County of San Francisco (2016) 3 Cal.App.5th 463, the Court held that the group had demonstrated “(1) its members otherwise would have standing to sue in their own right; (2) the interests it [sought] to protect [were] pertinent to the association’s purpose; and (3) neither the claim asserted nor the relief requested require[d] participation of the association’s individual members.” Vernon Price, a member of the group, had demonstrated his personal standing, the group’s purpose was to enforce Proposition L, as it did here, and compliance with Proposition L did not require the participation of other group members. Both Vernon Price and Citizens for Amending Proposition L had adequate standing.

The Court then turned to the merits of the appeal and established that Section 1021.5 allows for an award of attorneys’ fees at the discretion of the court where an action 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 …are such to make the award appropriate, and (c) such fees should not, in the interest of justice, be paid out of the recovery, if any.”

Considering this, the moving party must establish “(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.”

Reviewing the trial court decision for an abuse of discretion, and noting the broad deference conferred on the trail court, the Court affirmed the award.

The City contended that Citizens did not vindicate an important public interest, as required under 1021.5. The City argued that the trial court failed to analyze the benefit of the case “from a practical perspective” and did not evaluate the “significance of the benefit to the public.” The Court held that Citizens vindicated an important public right in ensuring that Proposition L was properly enforced, a benefit to the entire City. As such, Citizens conferred an important public interest of significant benefit.

Next, the City contended that the necessity and financial burden requirement was not met, that private enforcement was not necessary, and that the financial burden of private enforcement did not warrant subsidizing the successful party. The Court found that there was “ample” evidence in the record that Citizens’ goal of enforcing Proposition L was not self-serving, but benefitted all City residents. Further, there was no evidence in the record demonstrating that either Vernon Price or Citizens for Amending Proposition L would personally benefit from the July agreement being invalidated. Relying on Arnold v. California Exposition and State Fair (2004) 125 Cal.App.4th 498, a financial interest must be “specific, concrete, and significant and based on objective evidence.” Here, the Court found none. Even if one or both Respondents were competitors of Regency, the Court found there was no financial benefit in seeking the enforcement of the Proposition L prohibition.

The Court affirmed the trial court holding.

Key Point:

Public interest standing is not precluded by a petitioner’s commercial interest in a case where a sharp public interest and weighty public need outweigh an individual interest.

An award of attorney’s fees under the private attorney general doctrine is appropriate where a party conferred an important public interest of significant benefit, the action was necessary, and to bring the action was financially burdensome for the group.

Private Attorney General Doctrine Attorney’s Fee Award Proper Where Financial Burden Disproportionate to Financial Stake

Friday, January 12th, 2018

Homes along the wetlands of Heron Bay, San Leandro, California that may have suffered environmental impacts by the project. (SWA Group)

In Heron Bay Home Owner’s Association v. City of San Leandro (2018) 19 Cal.App.5th 376, the First District Court of Appeal affirmed a trial court judgement awarding partial attorneys’ fees where the financial burden of enforcement made an award appropriate pursuant to Code of Civil Procedure section 1021.5. The Heron Bay Homeowners’ Association (Heron Bay) was successful in their CEQA suit and while a “pecuniary interest in the outcome of the litigation [was] not disqualifying…the issue [was] whether the financial burden placed on the party is out of proportion to its personal stake in the lawsuit.”

Real Party in Interest Halus Power Systems manufactures wind turbines on a five-acre parcel in the City of San Leandro’s (City) industrial zone. Halus Power proposed to build a single 100-foot tall wind turbine on its property for renewable power generation and on-site research and development (Project). During the public comment period, Heron Bay expressed concern regarding the Project’s impacts on views, wildlife, aircraft navigational radar, noise and vibration levels, and property values. The City approved the Project, granted a height restriction variance, and issued a mitigated negative declaration. Heron Bay filed suit.

The trial court found there was substantial evidence supporting a fair argument that the Project as mitigated would have significant environmental impacts and directed the City to set aside its approval until the City had prepared an EIR. Halus Power ultimately decided not to proceed with the Project.

Heron Bay moved for an award of attorneys’ fees under Code of Civil Procedure section 1021.5 (Section 1021.5), the private attorney general doctrine. The trial court determined that the value of the suit to Heron Bay was approximately $5.8 million, and reasonably anticipated legal costs should have totaled approximately $240,000. The trial court also noted that Section 1021.5 was intended to address the problem of affordability in public interest litigation, and pointed out that a lawsuit aimed at avoiding financial loss, such as an anticipated harm to property values, may be especially hard to finance. Balancing these findings, the trial court awarded Heron Bay $181,471.70 in attorneys’ fees. The City timely appealed.

The Court found that to qualify for Section 1021.5 attorneys’ fees, a plaintiff must establish: (1) that the suit resulted in enforcement of an important right affecting the public interest; (2) that a significant benefit was conferred on the public or a large class of persons; and (3) that the necessity and financial burden of enforcement are such as to make the award appropriate. The City disputed Heron Bay’s claim that they met the third requirement.

The Court found that, contrary to the City’s assertions, Heron Bay faced a substantial financial burden compared to the potential benefit at stake in the litigation. Membership in the homeowners’ association was mandatory, each member had a vote, and only a few properties in the 629-unit development were likely to be within view of the Project. Accordingly, the Court reasoned that many members likely did not have sufficient individual financial motivation to retain counsel for CEQA litigation absent the possibility of Section 1021.5 fees.

The Court pointed out Heron Bay retained counsel on a “partially contingent fee basis,” allowing it to initially pay less than a third of the amount that retained-counsel actually billed. This “indicated Heron Bay and its members did not actually value the ‘benefit’ here sufficiently to undertake the litigation absent the incentive of a potential fee award under [S]ection 1021.5.” Further, the benefit Heron Bay sought was not “immediately bankable” and could not be used to pay counsel. The Court agreed with the trial court that the CEQA litigation costs would be a “much larger financial commitment” than the previous administrative proceeding they had been through. A court must evaluate these factors when determining whether the personal interests of Heron Bay “transcended the litigation costs.”

The Court then held some amount of pecuniary interest does not disqualify a party from being awarded attorneys’ fees. Heron Bay demonstrably was not solely motivated by a desire to avoid a loss in property values where its members submitted comments during the public comment period regarding not only property values, but also impacts on wildlife, aesthetics, health, and noise levels. The City’s argument that Heron Bay was ineligible for attorneys’ fee awards because it acted purely out of self-interest was unfounded. The City’s alternative argument—that Heron Bay was not authorized by its governing documents to pursue a purely altruistic action—was similarly dismissed.

The City’s final argument was that the trial court contradicted itself by concluding that Heron Bay’s “financial incentive” was “mitigated by the uncertain value of the benefit sought,” because the trial court assigned a subjective value, informed by Heron Bay’s claims, of $5.8 million to Heron Bay’s avoided property value loss. The Court stated that the trial court erred in applying an arbitrary evaluation, but found this did not affect the question of whether Heron Bay’s financial incentive was so large and the benefit so certain that it precluded any award. Since the City gave no credible evidence for a specific valuation of the projected loss, the Court could not agree that Heron Bay’s financial stake made Heron Bay ineligible for attorneys’ fees—the trial court conclusion was supported by substantial evidence.

Finally, the Court rejected speculative evidence regarding the Project’s projected harm to property values. The trial court’s ruling could not guarantee the City would refuse the requested variance or require Halus Power to make changes to the project following adoption of an EIR, or that Halus Power would abandon the project.

Accordingly, the Court affirmed the trial court’s ruling and awarded Heron Bay its costs on appeal, including attorneys’ fees, in an amount to be determined by the trial court.

Key Point:

A financial interest in the litigation does not automatically preclude an award of attorney’s fees under the private attorney general doctrine. Where the financial burden of bringing the lawsuit is disproportionate to a party’s financial stake in the lawsuit, fees may be awarded.

City Appeal of Trial Court Order Found Moot where City had Complied with the Order

Wednesday, March 7th, 2012

In Building a Better Redondo v. City of Redondo Beach (February 22, 2012) __ Cal.App.4th __ (Case No. 124769), a group of slow-growth advocates brought a petition for writ of mandate and declaratory relief against the City of Redondo Beach, seeking an order compelling the city to submit a local coastal program amendment to public vote in compliance with a charter amendment the city had recently enacted, which required any “major change in allowable land use” to be approved by city voters. The city argued that the local coastal program amendment predated the charter amendment and thus was not governed by the charter amendment. The trial court found the local coastal program amendment constituted a major change in allowable land use and ordered the city to place the amendment before the voters. Although the city appealed the judgment, it also voluntarily complied with the court’s order and the voters approved the amendment. The city’s final certification of the local coastal program followed. Subsequently, the trial court awarded petitioners $313,000 in attorney fees.

The appellate court dismissed the city’s appeal from the judgment as moot and affirmed the award of attorney fees. The court held that the results of the election approving the amendment were indisputably in effect for all purposes and would remain so regardless of the outcome of the appeal. Therefore, granting relief from the judgment would have no practical effect and the city conceded as much. No exception to the mootness doctrine applied. The case did not involve a matter of continuing public interest since it involved fact-specific issues that were unlikely to recur. The city claimed its appeal was not moot because the award of attorney fees was dependent upon the propriety of the trial court’s ruling on the merits of the action. According to the city, a reversal of the trial court ruling on the merits necessarily would require a reversal of any award of attorney fees since petitioner would no longer qualify as a prevailing or successful party for purposes of the attorney fee claim. The court disagreed with the contention that the appeal of the award of attorney fees prevented it from finding the appeal on the merits moot in this case, distinguishing the cases upon which the city relied.

The court also upheld the trial court award of attorney fees. The trial court did not abuse its discretion when it found that the claimed hourly fees, although substantial, were not unreasonably high in view of the quality of the work and counsel’s special expertise. The court found that the award was properly based on the reasonable market value of the services, even though the petitioners had been charged a reduced fee.

Key Point:

In finding that the appeal of the attorney fee claim did not revive the appeal on the merits, the court distinguished CEQA cases where the appeal involved the rights of third parties who exercised their own, separate right of appeal from judgments finding an EIR inadequate. In these CEQA cases cited by the city, the lead agency’s decision to comply with the writ and perform further environmental review did not render appeal of the judgment moot. The court in this case indicated that the dispositive fact saving the appeal from dismissal for mootness was not that the appeal involved an attorney fee award (despite language in at least one CEQA case finding an appeal on the merits was not moot because the award of attorney fees depended on the correctness of the ruling on the merits), but that the appeal was brought by the real party in interest who is aggrieved and has standing to appeal regardless of the agency’s decision to comply with the order.

Written By: Tina Thomas and Amy Higuera

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Awards Agency’s Costs of Preparing Administrative Record Despite Petitioner Electing to Prepare the Record

Tuesday, March 6th, 2012

In an unpublished decision, Landwatch San Luis Obispo v. Cambria Community Serv. Dist., 2d Civil No. B229545 (2012), the Court upheld a trial court’s cost award of $14,615.41 to the Cambria Community Service District for time spent preparing the administrative record.  The District initially sought almost $24,000.  In reaching the amount awarded, the trial court denied the majority of the costs claimed for work performed by the District’s general manager, its engineer and its attorney in preparing the transcript and granted the full amount of costs sought for work performed by the District’s clerk and three administrative assistants.

Petitioner appealed arguing that no costs should have been awarded because it elected to prepare the administrative record and the District never informed the Petitioner how much it would cost to prepare the transcripts for the administrative record.   The Court acknowledged that the Petitioner requested the District provide it with a cost estimate to prepare the transcripts.  However, the Court concluded that nothing in CEQA requires the public agency to provide a cost estimate for preparing the record.  The Court also rejected Petitioner’s claim that the costs were not reasonable and necessary.  The Court instead deferred to the trial court’s determination of reasonableness.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Northern District Awards Attorney’s Fees at Enhanced Rate above EAJA Cap in a Case Against the U.S. Bureau of Land Management

Tuesday, February 21st, 2012

In Center for Biological Diversity, et al. v. U.S. Bureau of Land Management, et al., (2012 U.S. Dist. LEXIS 10555, January 30, 2012), the Court granted Plaintiffs’ attorneys’ fees in the amount of $1,003,155.87, despite Defendants claim that the fees were excessive.  Among other things, Defendants argued that the case was overstaffed,  travel time should not be compensated and hourly rates for paralegals and law clerks should not be compensated above the rates allowed in the Equal Access to Justice Act  (“EAJA”, 28 U.S.C. § 2412(d)).  First, the Court disagreed with the US. Bureau of Land Management’s (“BLM”) assertion that eight attorneys working at various times on a complex litigation matter was considered overstaffing.  Second, the Court also disagreed with BLM that enhanced rates for travel time should not be awarded, but capped at EAJA rates.  BLM argued that Plaintiffs cannot show that “specialized skills” were needed for travel time to support enhanced rates.  The Court, however, granted 33.3 hours of travel time at the enhanced rate because the record indicated that Plaintiffs’ attorney was working on the case during the travel time and thus, his “specialized skills” were required.  Finally, BLM argued that the rates claimed for paralegals and law clerks should not be compensated above the EAJA cap.  However, the Court noted that in Richlin Security Service Company v. Chertoff, 553 U.S. 571, 589 (2008), the Supreme Court rejected this very argument, holding that “a prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the government at prevailing market rate.”

Key point:

Travel time can be awarded in an attorneys’ fee motion at an enhanced rate if an attorney can show that he or she was working during the travel time.

Written By: Tina Thomas and Michele Tong

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.