Need For More Expensive Out-Of-Venue Counsel Was Well Justified By Fee Claimant.
In Habitat and Watershed Caretakers v. City of Santa Cruz, Case No. H040762 (6th Dist. Oct. 6, 2015) (unpublished), both plaintiff and City appealed a lower court’s decision awarding plaintiff fees of about $250,000 (out of a requested $486,800 on the lodestar and about $30,000 for “fees on fees,” a 60% reduction on the fees on fees request) under California’s private attorney general statute, CCP § 1021.5. No one contested entitlement, just the amount of the fee award—City claiming too high, and plaintiff contesting the lower court’s application of a 50% negative multiplier on lodestar and the “fees on fees” reduction.
The lower court reduced the lodestar 50% for partial success ($226,725 total) and cut the “fees on fees” request by 60% as indicated above ($22,199.90, which gets to the “total total” of about $250,000) being reviewed.
Plaintiff got the better end of its challenge on appeal.
City’s appeal did not resonate because plaintiff did a nice job of showing it needed to obtain Oakland counsel out of the Santa Cruz area, given it could not find anyone else with the expertise or willingness to take a contingent basis. Plaintiff also used Mr. Richard Pearl as a fee expert to justify the higher hourly rates and demonstrate they were commensurate with rates charged by Bay Area practitioners. Also, the contingent nature of the representation justified a higher hourly lodestar rate.
However, the Sixth District was concerned with the downward adjustment of the lodestar for “partial success.” The problem is that the lower court may have confused not being successful with claims from not being successful with theories. Here, it looked like plaintiff did obtain success on all the claims, although it did admittedly lose on some theories/contentions. But this meant that the downward adjustment needed to be reexamined. While this was being done, the “fees on fees” determination should be reassessed, with the reviewing court somewhat alluding to its belief that the 60% cut was a little excessive in amount.