Fourth District, Division 1 Affirms $265,715.55 Fee Award Under CCP Section 1021.5.
In Center For Biological Diversity v. County of San Bernardino, Case Nos. D056652/D056648 (4th Dist., Div. 1 May 25, 2010) (certified for partial publication; fee discussion not published), two nonprofit organizations successfully challenged the County of San Bernardino’s approval of an open-air human waste composting facility under CEQA. Subsequently, the trial court awarded winners $265,715.55 in attorney’s fees pursuant to California’s private attorney general statute, Code of Civil Procedure section 1021.5. (Winners had requested fees of $263,708, augmented by a 1.5 multiplier.) The trial court reduced the lodestar request to $159,863.70, nearly 60%, before increasing the lodestar by a 1.5 multiplier—which brought the total to $239,990.55, with another $25,725 in “fees on fees” accounting for the difference in reaching $265,715.55.)
County and real party in interest (real party being the project developer) appealed the merits and fee judgments.
They both lost.
Initially, one of the nonprofits brought a motion to dismiss real party’s appeal of the fee award based on a lack of standing. However, this was denied because real party had agreed to indemnify County for any fee award, meaning it was “aggrieved” for purposes of appealing under Code of Civil Procedure section 902.
The appellate court found no abuse of discretion as far as the substantive basis of the fee award. The air quality and water supply issues were important rights that conferred a significant benefit on the public. The merits judgment meant that the County had to consider the impacts before project approval rather than afterwards—a fundamental purpose underlying CEQA protections.
That brought the Court of Appeal to the reasonableness of the amount of the award. The trial court showed its thoughtfulness by reducing the fee request on numerous grounds, resulting in a nearly 60% reduction before applying a multiplier. Nothing wrong with that analysis, said the Court. Losers argued that the lower court had to discuss each of the multiplier factors before making an enhancement, but no authority was cited for such a proposition such that it was rejected.
The appellate panel recognized that winners were entitled to fees on appeal for prevailing, but remanded to the trial court to determine those fees—dubbing it the “better practice.” (Security Pacific National Bank v. Adamo, 142 Cal.App.3d 492, 498 (1983).)