$602,211.23 Fee Request Pared Down By Lower Court and Sustained.
Living Rivers Council v. State Water Resources Control Bd., Case No. A138723 (1st Dist., Div. 5 Oct. 15, 2014) (unpublished) has a nice discussion of the private attorney fee recovery elements under CCP § 1021.5 and also demonstrates how a carefully framed lower court fee award will be affirmed under the abuse of discretion review standard.
In this one, a nonprofit dedicated to maintaining the Napa River succeeded on one of three CEQA claims against the Water Resources Control Board, requiring the Board to consider groundwater delineations as a mitigation measure for purposes of formulating a policy to maintain main instream flows to protect fisheries. The nonprofit moved for private attorney general fees, asking for $602,211.23. The lower court awarded $445,000, based on the following “math”: (1) the correct lodestar for fees on fees work was $45,000 and the lodestar for merits work was $324,120; (2) a reduction of $57,450 was warranted on the merits work because nonprofit only partially succeeded; and (3) the adjusted lodestar would be augmented by a 1.5 positive multiplier based on the contingent risk taken by nonprofit attorneys who were only paid $70,000 before taking the rest on contingency.
The appellate court affirmed the lower court’s fee award.
Nonprofit was the prevailing party even if it was the court that came up with the groundwater delineations which led to the lower court grant of mandate, with nonprofit winning on a significant issue and with the nonprofit’s petition leading to the ultimate “relook at” ruling. Because CEQA benefits were vindicated, the “significant nonpecuniary benefit on the public” 1021.5 element was satisfied—the ruling required more review that looking at a “minute blemish.” There was no need for prelitigation settlement negotiations (although there were settlement talks) because the matter was not a catalyst case.
With respect to the amount of the award, the lower court correctly allowed hourly rates ranging from $140-$625, and it was no error to award a positive multiplier based on the contingency risk taken on by nonprofit’s attorneys.
The Board then made the public fisc argument—taxpayers should not have to pay private attorneys’ compensation. However, although this can be considered, it cannot be the basis for a rejection of 1021.5 fee requests altogether. The lower court felt the benefit from the case required an award on the “public dime.” (Horsford v. Bd. of Trustees of Cal. State Univ., 132 Cal.App.4th 369, 400 (2005); Rogel v. Lynwood Redevelopment Agency, 194 Cal.App.4th 1319, 1331-1332 (2011).)