Both Sides’ Appeals—Government For Nothing, Plaintiffs For More—Result In Fee Award Being Sustained.
Center for Biological Diversity v. Cal. Fish and Game Commn., Case No. A137889 (1st Dist., Div. 2 Jan. 28, 2014) (unpublished) involved a situation where non-profit plaintiff successfully pursued a mandate petition challenging the validity of a governmental regulation about the Black-Backed Woodpecker. Under the private attorney general, non-profit requested fees of $116,690.50 (inclusive of a 2 multiplier), with the trial court awarding $46,992 (a 1.2 multiplier after reducing requesting fees by about 45% overall).
Both sides appealed; both sides went their separate ways just as they started on appeal, especially given the appellate directive each side bear their own costs and fees on appeal.
Really, the abuse of discretion standard drove the result. Non-profit pragmatically realized its litigation objective, so that any other conclusion really did not resonate on appeal. Interestingly, the governmental entity argued that the lower court relied on a settlement protected Evidence Code section 1152 recital in determining the fee motion, but the appellate court decided section 1152 did not preclude consideration of evidence of such proof for damages, fees or costs. [BLOG OBSERVATION—We actually like the reasoning on this point, although others may disagree.] Non-profit’s challenges to reductions for settlement negotiations did not go that far given the lower court’s ability to reduce for duplicative/inefficient time perceptions. Deductions, like apportionments, are allowable in section 1021.5 cases.