Significant Benefit Was Conferred, And No Need For Apportionment Where Successful And Unsuccessful Claims Were Inextricably Intertwined.
In Liu v. Bd. of Adm. of CalPERS, Case No. B341221 (2d Dist., Div. 2 Oct. 29, 2026) (unpublished), lead plaintiff/respondent Liu on appeal, a class member of CalPERS, filed a CCP § 1094.5 writ mandate petition, on a class basis, to set aside an administrative decision applying what Liu believed to be an incorrect definition of “bonus” under applicable regulations when calculating employees’ final compensation for pension purposes. The parties agreed to stay the class claims, stay discovery, and schedule a bench trial on the petition. The trial court preliminarily granted the petition, determining CalPERS erred in excluding lump-sum merit payments from lead petitioner’s “final compensation.” After the trial court’s petition ruling, amended petitions were filed, also adding another petitioner class member. Extensive class discovery was conducted, and state public record act requests were made. Petitioners moved to certify a class, with the parties stipulating that petitioners would withdraw their certification motion and dismiss the class allegations without prejudice if the trial court found there was error and that any final determination would be applied to appropriate members of CalPERS. The trial court found in petitioners’ favor, triggering a CCP § 1021.5 attorney’s fees motion—requesting a lodestar of close to $2 million, plus a 1.5 multiplier and plus $124,121 for work on a reply for a total requested fee award close to $3.057 million. The lower court awarded $2,989,269.75 which was inclusive of a positive 1.5 multiplier.
CalPERS’ appeal of the fee award was unsuccessful, which only challenged whether the significant benefit element of section 1021.5 was satisfied and the amount of fees awarded. Importantly, the appellate court concluded the significant benefit element and fee amount were issues both reviewed under an abuse of discretion standard. The litigation did confer a significant benefit on a large class of individuals, namely, CalPERS contract with 3000 public agencies (involving 2 million members), with CalPERS having more than 675,000 retired classic members and 375,000 active classic members. With respect to amount of fees, the hours claimed were supported by 130 pages of billing entries and multiple attorney declarations. Apportionment was not required, because the successful and unsuccessful claims were inextricably intertwined, bolstered by the parties’ various stipulations on class treatment in attempts to minimize expenses. Also, the appellate court reminded that a litigant (like the government) cannot litigate tenaciously, only to complain about the time necessarily spent by the opposition. On hourly rates, the trial court did not have to credit CalPERS’ expert on the subject. Finally, the 1.5 positive multiplier was justified based on contingency risk and several other law firms not willing to represent respondents on a contingency basis.