Judge Curtis A. Kin, Case Number: 20STCP04019, Date: 2024-03-05 Tentative Ruling

Intervenors Re-Imagine Los Angeles County Coalition and Thomas Newman move for an award of attorney fees and expenses in the amount of $503,094.63.

“In November 2020, the voters of Los Angeles County (County) amended the County charter by enacting Measure J. The charter amendment adopted by Measure J requires the County Board of Supervisors (Board) to annually allocate at least 10 percent of the County’s locally generated unrestricted revenues in the general fund to direct community investment (such as youth programs, job training, rental assistance, and affordable housing) and alternatives to incarceration (including health, mental health, and substance use disorder programs). The charter amendment also specifically prohibits Measure J funds from being allocated to any carceral system or law enforcement agency.” (Coalition of County Unions v. Los Angeles County Bd. of Supervisors (2023) 93 Cal.App.5th 1367, 1376 (Coalition).)

“Immediately after Measure J’s enactment, a coalition of County employee unions and two individuals filed a petition for a peremptory writ of mandate prohibiting the Board, the Los Angeles County Auditor (auditor), and the Los Angeles County Chief Executive Officer (CEO) from enforcing the charter amendment. The trial court granted the petition, concluding that the amendment would severely impair the County’s ability to exercise essential government functions, including managing the County’s budget and protecting public safety, which were matters of statewide concern.” (Id. at 1376-77.)

The Court of Appeal reversed the grant of the writ petition, stating: “Article XI, section 4, subdivision (g) of the California Constitution provides that if a county has adopted a charter for its own governance, ‘the general laws adopted by the Legislature in pursuance of Section 1(b) of this article, shall, as to such county, be superseded by said charter as to matters for which, under this section it is competent to make provision in such charter, and for which provision is made therein, except as herein otherwise expressly provided.’ (Italics added.) Such matters include ‘[t]he performance of functions required by statute’ (id. art. XI, § 4, subd. (d) (§ 4(d))) and ‘[t]he powers and duties of governing bodies and all other county officers’ (id., art. XI, § 4, subd. (e) (§ 4(e))). Because the charter amendment enacted by Measure J defines a ‘power’ (allocating locally generated unrestricted revenues) and a ‘duty’ (directing 10 percent of such revenues to particular purposes) of the County’s ‘governing bod[y]’ (the Board)—and because it concerns ‘[t]he performance of functions required by statute’ (adopting a budget)—it is a permissible exercise of the County’s authority to amend its charter. Further, contrary to petitioners’ contentions, the amendment neither impairs the exercise of essential government functions nor violates state law. Measure J thus is enforceable….” (Coalition, 93 Cal.App.5th at 1376.)

On December 8, 2020, petitioners Coalition of County Unions, Miguel A. Ortega, and Ron Hernandez filed the operative Verified Petition for Writ of Mandate and Request for Declaratory Relief. On January 27, 2021, respondents Los Angeles County Board of Supervisors; Arlene Barerra, in her official capacity as Los Angeles County Auditor; and Fesia Davenport, in her official capacity as Los Angeles County Chief Executive Officer (collectively, “County”) filed an Answer.

On June 17, 2021, the Court (Hon. Mary H. Strobel) issued and adopted its tentative ruling as its proposed statement of decision.

On July 7, 2021, the Court granted Re-Imagine Los Angeles County Coalition and Thomas Newman’s ex parte application for leave to intervene. The Court granted discretionary, as opposed to compulsory, intervention. On the same date, intervenors[1] filed an Answer in Intervention.

On July 14, 2021, after receiving objections and responses to the proposed statement of decision, the Court issued its Final Statement of Decision: Petition for Writ of Mandate, which granted the petition for writ of mandate and ordered petitioner to lodge and serve a proposed form of judgment and writ.

On July 30, 2021, pursuant to petitioners’ request, the second cause of action for declaratory relief was dismissed without prejudice.

On August 16, 2021, the Court entered judgment in favor of petitioners and issued a writ prohibiting respondents from enforcing Measure J.

On July 28, 2023, the Court of Appeal issued its opinion reversing the grant of the writ petition and directing the trial court to enter a new judgment denying the petition, and, on July 31, 2023, modified that opinion. (Coalition, 93 Cal.App.5th at 1407.) On October 27, 2023, having reversed the judgment and directed entry of judgment denying the petition, the Court of Appeal issued a remittitur.

Intervenors seek an award of attorney fees pursuant to Code of Civil Procedure § 1021.5. “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest….” (CCP § 1021.5.) “[E]ligibility for section 1021.5 attorney fees is established when ‘(1) plaintiffs’ action “has resulted in the enforcement of an important right affecting the public interest,” (2) “a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons” and (3) “the necessity and financial burden of private enforcement are such as to make the award appropriate.”’” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)

A party “may be considered successful if they succeed on any significant issue in the litigation that achieves some of the benefit they sought in bringing suit.” (Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2010) 187 Cal.App.4th 376, 382.) In determining whether the issue upon which a party prevailed is significant, “the court must critically analyze the surrounding circumstances of the litigation and pragmatically assess the gains achieved by the action.” (Ibid.)

Here, intervenors succeeded in obtaining a reversal of the judgment in favor of petitioners, thereby obtaining a denial of the petition and upholding the legality of Measure J. (See Answer in Intervention, Prayer for Relief at ¶ 1.) Because intervenors prevailed on a significant issue in the litigation, intervenors are successful parties under section 1021.5. Petitioners do not argue otherwise.

“In assessing whether an action has enforced an important right, courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals. As to the benefit, it may be conceptual or doctrinal and need not be actual and concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient ... [However,] [t]he benefit must inure primarily to the public. Thus, the statute directs the judiciary to exercise judgment in attempting to ascertain the ‘strength’ or ‘societal importance’ of the right involved.” (Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, 829, quoting Choi v. Orange County Great Park Corp. (2009) 175 Cal.App.4th 524, 531, internal quotations and citations omitted.)

Petitioners do not directly address or dispute whether the “important right” element of a fee award under CCP § 1021.5 is satisfied.

Through their appeal, intervenors enforced the County’s “home rule” authority over budgeting under the California Constitution. (Int. Decl. Ex. U at 22-33; Coalition, 93 Cal.App.5th at 1388-90.) Consequently, intervenors have enforced an important right – the vindication of constitutional powers. (See Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1103 [holding that the vindication of the principle that “the Governor’s power to veto legislation cannot be exercised to invalidate part of a bill which is not part of an appropriation bill” under state constitution results in enforcement of important right affecting public interest].)

Further, proponents of Measure J asserted that “the measure would ‘address the root causes of crime’ through restorative justice programs, counseling and mental health services, job training, and supportive housing, thus reducing crime.” (Coalition, 93 Cal.App.5th at 1392, italics in original quoting L.A. County Official Sample Ballot, Gen. Elec. (Nov. 3, 2020) argument in favor of Measure J, p. 35.) By approving Measure J, voters in Los Angeles County appear to have agreed that the measure would advance public safety. (Coalition, 93 Cal.App.5th at 1392.) Accordingly, intervenors’ appeal has benefitted the public.

Thus, for the foregoing reasons, by succeeding on appeal, intervenors enforced an important right affecting the public interest by stabilizing the funding of “certain categories of expenditures that are priorities for County voters.” (Id. at 1391.)

“Whether a successful party’s lawsuit confers a ‘significant benefit’ on the general public or a large class of persons is a function of (1) ‘the significance of the benefit,’ and (2) ‘the size of the class receiving [the] benefit.’ [Citation.] In evaluating these factors, courts are to ‘realistic[ally] assess[ ]’ the lawsuit’s ‘gains’ ‘in light of all the pertinent circumstances.’ [Citation.]” (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1158.) A significant benefit can be found “simply from the effectuation of a fundamental constitutional or statutory policy” “from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939-40.)

Petitioners do not directly address or dispute whether the “general public” element of a fee award under CCP § 1021.5 is satisfied.

For the reasons stated above with respect to enforcement of an important right, petitioner demonstrates that a significant benefit was conferred on the general public. (La Mirada, 22 Cal.App.5th at 1158 [finding when proper enforcement of law is the public benefit, “the significant benefit and important right requirements of section 1021.5 to some extent dovetail”].)

“[T]he necessity and financial burden requirement really examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys.” (Whitley, 50 Cal.4th at 1214.)

In the Petition, petitioners named the County Board of Supervisors, auditor, and CEO as respondents. Intervenors subsequently obtained leave to appear in this proceeding. “Where…private parties have voluntarily joined in cases that government entities are required to prosecute or defend, the trial court must exercise its discretion to determine ‘the necessity, significance, and value of private counsel's services’ and is not bound by the characterizations or tactical decisions of private counsel.” (San Diego Municipal Employees Assn. v. City of San Diego (2016) 244 Cal.App.4th 906, 915, quoting Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal.App.3d 633, 642-43.)

“In the circumstances of this case, an attorney fee award is dependent upon an ultimate finding of the trial court that the colitigating private party rendered necessary and significant services of value to the public or to a large class of persons benefited by the result of the litigation. [¶] Important factors the trial court should address in determining if the services of the private party were necessary, so as to support that ultimate finding, are these: (1) Did the private party advance significant factual or legal theories adopted by the court, thereby providing a material non de minimis contribution to its judgment, which were nonduplicative of those advanced by the governmental entity? (2) Did the private party produce substantial evidence significantly contributing to the court's judgment which was not produced by the governmental entity, and which was neither duplicative of nor merely cumulative to the evidence produced by the governmental entity?” (Committee to Defend Reproductive Rights, 229 Cal.App.3d at 642-43.) The Court should assess whether the private party’s “contribution to the…action was more than merely helpful or even substantial” and whether “it was necessary to the ultimate success of the [action].” (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1350; see also Ciani v. San Diego Trust & Savings Bank (1994) 25 Cal.App.4th 563, 573-74 [moving party must show more than mere “helpful activity”].)

With respect to the instant matter, the Court of Appeal addressed “whether a county may adopt a charter provision that restricts its board of supervisors’ discretion over the county’s budget.” (Coalition, 93 Cal.App.5th at 1383.) In holding that the county may do so, the Court of Appeal made three principle findings. First, the Court of Appeal found that Measure J, through which the County charter was amended, was a proper exercise of the County’s “home rule” of its local affairs. (Id. at 1389.) Second, the Court of Appeal found that Measure J does not impair the County’s exercise of essential government functions, namely, managing the County’s budget, particularly with respect to public safety. (Id. at 1390-91.) Third, the Court of Appeal found that state statutes governing county budgets do not exclude voters from adopting binding budget priorities, notwithstanding reference in those statutes to duties of the board of supervisors. (Id. at 1392-1400.) The Court of Appeal further noted that, even if an exclusive delegation to the board of supervisors were implied from the statutes, “Measure J neither purports to delegate to the voters the task of adopting a budget nor seeks to prevent the Board from doing so.” (Id. at 1399.)

At the very least, with respect to the third finding by the Court of Appeal concerning exclusive delegation, this Court finds that intervenors made necessary contribution toward the success of the appeal. The Final Statement of Decision concluded that certain state statutes (specifically the County Budget Act, Government Codes sections 30603-30608, and Government Code section 26227) delegate exclusive authority over the County budget to the Board of Supervisors. (7/14/21 Statement of Decision at 13-21.) On appeal from that decision, intervenors argued that two “paramount factors” concerning exclusive delegation weighed in favor of finding that these state statutes do not exclusively delegate budgeting to the Board of Supervisors. (Int. Ex. U at 39-49.) The first factor is whether the statute used “legislative body” or “governing body, as opposed to “city council” or “board of supervisors,” the latter of which leads to a stronger inference of exclusive delegation. The second factor is whether the subject at issue was a “statewide concern” or a “municipal affair.”

With respect to the first paramount factor, intervenors argued that the County Budget Act used the term “board” not because the Legislature intended to delegate budgeting exclusively to the Board of Supervisors, but because the statute pertained to counties. (Int. Ex. U at 41-42.) The Court of Appeal adopted this argument and specifically attributed it to intervenors, stating: “As intervenors correctly note, unlike many state laws that apply equally to city and county governments, the County Budget Act applies only to counties, specifying the procedures that county boards of supervisors must follow in adopting a budget. [Citation.] In light of the County Budget Act's scope and purpose, it is unsurprising that the Legislature uses the term “board” since there is no other local legislative or governing body that could enact a county budget…. We therefore do not perceive the references to the “board of supervisors” in the County Budget Act to be a useful indicator of the Legislature's intent with regard to exclusive delegation.” (Coalition, 93 Cal.App.5th at 1398.)

In addition, the Court of Appeal cited California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 945-46, for the proposition that an “unambiguous indication” to constrain initiative power was required before limiting budgeting governance to the Board of Supervisors. (Coalition, 93 Cal.App.5th at 1398.) Intervenors discussed this case in their opening and reply briefs. (Int. Ex. U at 37, 60-62.) The County did not. (Int. Exs. W, X.)

As for the second paramount factor (i.e., whether the subject at issue was a “statewide concern” or a “municipal affair”), intervenors argued that the presence of some state interests in a state statute is not conclusive of a legislative intent to bar the right of initiative. (Int. Ex. U at 44-45.) Intervenors cited Pettye v. City and County of San Francisco (2004) 118 Cal.App.4th 233 and Empire Waste Management v. Town of Windsor (1998) 67 Cal.App.4th 714 for the assertion that statutes asserting state interests can leave room for local decision making. (Int. Ex. U at 44, 47, Ex. V at 27.) The County, by contrast, cited Pettye for a different reason (i.e., as an example of preemption) in its opening brief. (Int. Ex. W at 69-70.) The County did not cite Empire Waste at all. (Int. Exs. W, X.)

Citing both Pettye and Empire Waste, the Court of Appeal adopted intervenors’ reasoning and found that the County Budget Act governed the timing and reporting of budgets but left the decisions concerning substantive budget allocations to counties. (Coalition, 93 Cal.App.5th at 1401-02.) This finding further parallels intervenors’ framing of the state statutes as ones of procedure, not substance. (Int. Ex. U at 35 [“[T]he state statutes mainly detail a timeline and procedures by which a county budget must be adopted. By contrast, Measure J regulates the authority of the Board of Supervisors to make certain substantive budgetary decisions”].)

Having compared intervenors’ and the County’s briefs to the Coalition opinion, this Court finds that intervenors’ arguments were necessary for the Court of Appeal to have found that state statutes do not exclusively delegate budgeting to the Board of Supervisors—a finding necessary to reverse the trial court’s ruling and to uphold Measure J.

Petitioners argue that intervenors have a disqualifying pecuniary interest in the matter because intervenors stand to receive funding as a result of Measure J. (Opp. at 11:11-20.) “Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.” (Austin v. Board of Retirement (1989) 209 Cal.App.3d 1528, 1535.)

However, the fact that intervenors may potentially avail themselves of additional funding as a result of Measure J does not mean that intervenors’ financial interest is disqualifying. “Where personal benefits are a step removed from the results of the litigation, the potential financial benefit is indirect and speculative, and thus, a trial court does not abuse its discretion in concluding that the financial burden criterion is satisfied for purposes of section 1021.5.” (People v. Investco Management & Development LLC (2018) 22 Cal.App.5th 443, 470.)

Here, intervenors are not assured of receiving funding as a result of the upholding of Measure J. “[W]hile Measure J directs a percentage of Los Angeles County’s budgets to broad categories of programs, it does not require the Board to fund any particular programs, nor does it direct the levels at which new or existing programs must be funded.” (Coalition, 93 Cal.App.5th at 1405.) Because the Board has discretion within the confines of Measure J to determine which programs receive funding, any financial interest intervenors may have is merely speculative and insufficient to defeat their claim for attorney fees under CCP § 1021.5. Accordingly, given the uncertainty of receiving funding under Measure J, the financial burden of intervenors in litigating this writ proceeding warrant a fee award under CCP § 1021.5.

Intervenors move for $503,094.63 in fees and expenses. The request is comprised of the fees on the merits, the fees incurred in connection with the fee motion, and out-of-pocket expenses.

With respect to the fees incurred in obtaining reversal of the judgment on appeal, petitioner seeks a total of $130,515, calculated as follows:

The Court finds the asserted hourly rates are reasonable, and petitioners do not meaningfully advance any reasons why the Court should find otherwise.

Intervenors seek a 1.5 multiplier. Courts look to the following factors, among others, in determining whether a multiplier is appropriate: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers ….” (See Serrano v. Priest (1977) 20 Cal.3d 25, 48.)

Here, the Court finds that a multiplier is potentially warranted. The appeal involved complex issues concerning constitutional separation of powers between the State and charter counties. To the extent that the Court of Appeal did not adopt intervenors’ arguments (e.g., their preemption argument), the Court has discretion to compensate intervenors for time spent on the unsuccessful legal theories. “Attorneys generally must pursue all available legal avenues and theories in pursuit of their clients' objectives; it is impossible, as a practical matter, for an attorney to know in advance whether or not his or her work on a potentially meritorious legal theory will ultimately prevail.” (Greene v. Dillingham Construction, N.A., Inc. (2002) 101 Cal.App.4th 418, 424, quoting Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 250.) Considering the complexity of the issues, intervenors were entitled to assert the arguments they thought were best suited to address why the statement of decision was in error.

Counsel for petitioner also agreed to represent petitioner on a partially contingent basis with significantly reduced rates. (Larson Decl. ¶ 3.) A multiplier is designed to address the risk that counsel bears of not receiving payment. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 580 [“The contingent fee compensates the lawyer not only for the legal services he renders but for the loan of those services”].)

However, while there may be good reasons for the Court to apply the 1.5 multiplier requested by intervenors, the need for any such multiplier is counterbalanced in equal measure by certain excessive billing evidenced by intervenors’ time sheets. Intervenors double-, triple-, and quadrupled-billed for discussing the case. (Int. Ex. A; see also Hildreth Decl. ¶¶ 2-5 & Ex. A.) Further, as calculated by petitioners and not denied by intervenors, counsel spent 99 hours researching before beginning drafting their appellate brief, 157 hours drafting the opening brief, 95 hours drafting the reply brief, and 60.2 hours preparing for 12 minutes of oral argument. (Opp. at 13:14-14:2.) Despite the complexity of the issues presented by the appeal, these hours are still plainly excessive. The Court notes that, while attorney Salvador Pérez, as the junior associate, appears to have gained considerable experience in litigating this appeal, any inefficiencies during the learning process are not reasonably compensable. (Larson Reply Decl. ¶ 3.)

Based on the foregoing, the Court awards intervenors the asserted $309,422.00 lodestar without a multiplier.

With respect to the fees incurred in obtaining fees, petitioner seeks a total of $29,256.50, calculated as follows:

The Court finds the asserted hourly rates are reasonable, and petitioners do not meaningfully advance any reasons why the Court should find otherwise.

The Court finds that the hours billed for the motion and reply are excessive. The Court finds that a 30 percent reduction is appropriate. Accordingly, the fees for the fee motion to be recovered are $20,479.20.

Intervenors seek to recover $9,705.13 in costs. (Larson Decl. ¶ 7 & Ex. B.) Petitioners object to inventors’ breakdown of the computer research costs as vague. Intervenors provided a compilation of the total Westlaw charges by month. (Larson Decl. ¶ 7 & Ex. B.) Given the complexity of the legal issues presented in the appeal, the charges are reasonable on their face. Intervenors may recover the total costs requested in the amount of $9,705.13.

The motion is GRANTED IN PART. Using the appropriate lodestar approach, and based on the foregoing findings and in view of the totality of the circumstances, the total and reasonable amount of attorney fees incurred for the work performed in connection with the appeal of the judgment in the Petition for Writ of Mandate is $339,606.33 ($309,422.00 merits + $20,479.20 fee motion + $9,705.13 costs). Such fees are awarded to intervenors Re-Imagine Los Angeles County Coalition and Thomas Newman and against petitioners Coalition of County Unions, Miguel A. Ortega, and Ron Hernandez.

[1] Intervenor Re-Imagine LA “is a coalition of 13 organizations making up the Coalition Coordinating Committee and 131 organizational members. The 13 committee members are: The Advancement Project of California, Bend the Arc, Black Lives Matter L.A., Brilliant Corners, Community Coalition, CURB, Dignity & Power Now, La Defensa, Los Angeles Black Worker Center, TransLatin Coalition, the United Way of Greater Los Angeles, White People 4 Black Lives, and the Youth Justice Coalition.” (Coalition of County Unions v. Los Angeles County Bd. of Supervisors (2023) 93 Cal.App.5th 1367, 1381, fn. 4.)

Timekeeper	Hours	Rate	Lodestar
Fredric D. Woocher	35.9	$900	$32,310.00
Dale K. Larson	107.8	$800	86,240.00
Salvador E. Pérez	368.9	$495	182,605.50
Julia G. Michel	16.7	$495	8,266.50
Total Fees Requested for Merits			$309,422.00
Additional Multiplier for Merits			154,711.00
TOTAL FOR MERITS:			$464,133.00

Timekeeper	Hours	Rate	Lodestar
Fredric D. Woocher	2	$900	$1,800.00
Dale K. Larson	11.2	$800	$8,960.00
Salvador E. Pérez	23.7	$495	$11,731.50
Fees for Fee Motion Reply and Argument			$6,765.00
TOTAL FOR FEE MOTION:			$29,256.50