Private Attorney General: 85% Reduction In Requested Fee Award Was No Abuse Of Discretion, Although Dissenting Justice Disagreed With Some Cuts

CCP § 1021.5 Benefit And Economic Interest Factors Satisfied–CEQA Winner Awarded $56,459.16 Out of Requested $668,386 in Fees.

     For you readers following private attorney general fee awards under CCP § 1021.5, North Sonoma County Healthcare Dist. v. County of Sonoma, Case No. A134862 (1st Dist., Div. 4 Aug. 14, 2013) (unpublished) is an interesting analysis of the substantive factors behind such an award and illustrates the breadth of discretion accorded to lower court in awarding the amount of fees, although some of the “haircuts” by the trial judge were found inappropriate by a dissenting justice.

     Above:  Haircut.  Sept. 1938.  Marion Post Wolcott, photographer  Library of Congress.

     A CEQA-suing plaintiff challenged the County’s approval of a replacement hospital/medical office building for the Chanate campus hospital facilities which were seismically noncompliant from a safety perspective. The lower court partially granted plaintiff’s mandate petition for further exploration of greenhouse gas mitigation measures and for clarification on whether the proposed medical office would be owned/operated by a governmental agency or nonprofit entity. In other words, plaintiff won on two of the four major issues raised to the project.

     Predictably, plaintiff’s San Francisco attorneys, who were litigating in Sonoma County, moved to recoup $668,386 in section 1021.5 fees. The lower court, after extensive briefing, awarded plaintiff fees of $51,459.16 for merits work and $5,000 for preparing/litigating the fee motion (commonly known as “fees on fees”). Both sides appealed.

     County’s argument that the litigation did not confer a significant benefit to the public did not resonate because CEQA rights usually do trigger a benefit, even for benefits that were only “conceptual, doctrinal, or somewhat intangible” in nature. Also, the fact that the litigation would vindicate plaintiff’s own economic interests was not a disqualifying factor because enforcement of CEQA public access rights often times outstrips the financial positives for plaintiffs and a “potential” incentive of an indirect and largely speculative nature does not require denial of a fee award. (Plumbers & Steamfitters, Local 290 v. Duncan, 157 Cal.App.4th 1083, 1099 (2007); Otto v. Los Angeles Unified School Dist., 106 Cal.App.4th 328, 332-333 (2003) [fee award was appropriate since there was “no guarantee” plaintiffs would ever “secure any financial benefit for themselves” from District’s change of policy].)

     That left plaintiff’s appeal arguing that the lower court erred in reducing the fee request by 85% (even though the lower court did award a 1.4 multiplier on the reduced lodestar work effort). Initially, the trial judge reduced the request for the partial success of plaintiff, and this was proper based on what occurred in the CEQA proceeding. The lower court then reduced the hourly rates of the San Francisco attorneys from $300-415 associate and $500 partner hourly ranges to $300 based on its perception of what is reasonable for Sonoma County–with plaintiff failing to show that it was necessary to retain higher priced out-of-town counsel to handle the case. Next, the lower court balked at awarding $85,788 for “fees on fees” work, reducing that request down to $5,000 after finding it was “outrageous.” Presiding Justice Ruvolo penned the majority decision, concurred with by Justice Reardon.

     In dissent, Justice Rivera did not like the majority analysis on the “haircuts” on the hourly rate and “fees on fees” work. The dissent found that the trial judge had relied on unsworn, unsubstantiated statements of counsel which should not have been credited. There was fee expert testimony justifying the rates being requested. The dissent also believed that a fee-scrutinizing jurist could not fix an hourly rate in the community based solely on the judge’s personal opinion and contrary to all record evidence. As far as “fees on fees,” the dissent did not believe that the case involved a routine fee motion at all, disagreeing with the lower court’s assessment it was “stock” in nature.