Judge Curtis A. Kin, Case Number: 21STCP03146, Date: 2023-08-29 Tentative Ruling

Petitioner Fix the City, Inc. moves for an award of an attorney fees and costs in the total amount of $155,670.41. The request is GRANTED IN PART.

On September 22, 2021, petitioner Fix the City, Inc. filed a petition for writ of mandate challenging the issuance of certificates of occupancy for two separate apartment buildings located at 1772 Glendon Avenue and 1751 Malcolm Avenue pursuant to the Alquist-Priolo Earthquake Fault Zoning Act (“AP Act”). (Prayer ¶¶ 1, 2.) On February 20, 2022, the Court (Hon. Mary H. Strobel) granted the petition for writ of mandate. The Court ordered supplemental briefing with respect to the appropriate remedy and set a hearing for April 11, 2023.

On April 11, 2023, the Court ruled that it would issue a writ directing respondent Los Angeles Department of Building and Safety (“LADBS”) to require real party in interest HS Westside Properties, LLC to conduct further geologic investigation of the potential fault trace in the vicinity of the Glendon Avenue side of the Project shown in the 2018 Alquist Priolo Earthquake Fault Zone map. The Court also ruled that it would direct LADBS to provide notice to each occupant of the units at 1772 Glendon and 1751 Malcolm of the Court’s final rulings in this matter and that forthcoming geologic seismic studies will be undertaken.

On April 24, 2023, the Court entered judgment granting the petition for writ of mandate.

Petitioner seeks 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, petitioner succeeded in obtaining writ relief directing LADBS to require real party to conduct further geologic investigation after Fault Evaluation Report 259 of the California Geological Survey (“FER 259”) and the resulting update to the Alquist Priolo Earthquake Fault Zone Map in 2018 (“2018 AP Zone Map”) demonstrated a potential fault trace in the southwesterly portion of the project near Glendon. (2/28/23 Minute Order at 41-43; 4/11/23 Minute Order at 3, 6.) Because petitioner prevailed on a significant issue in the litigation, petitioner is the successful party under section 1021.5. Respondents City of Los Angeles, Los Angeles Department of Building and Safety, and Board of Building and Safety Commissioners 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.)

In enacting the AP Act, the Legislature declared two objectives: (1) “to provide policies and criteria to assist cities, counties, and state agencies in the exercise of their responsibility to prohibit the location of developments and structures for human occupancy across the trace of active faults”; and (2) “to provide the citizens of the state with increased safety and to minimize the loss of life during and immediately following earthquakes by facilitating seismic retrofitting to strengthen buildings, including historical buildings, against ground shaking.” (Pub. Res. Code § 2621.5(a).)

Public Resources Code § 2623(b) states: “After a report has been approved or a waiver granted, subsequent geologic reports shall not be required, provided that new geologic data warranting further investigations is not recorded.” The Court here found that the potential fault trace reflected in FER 259 and the 2018 AP Zone Map constituted “new geologic data,” which necessitated further geologic investigation. (2/28/23 Minute Order at 43.) Requiring further geologic investigation advances the legislative objectives of assisting cities to avoid approving structures for human occupancy across the trace of active faults and providing citizens of the state with increased safety and to minimize the loss of life during and immediately following earthquakes.

Respondents do not contest that the violation of the AP Act addressed by the judgment pertains to an important right affecting the public interest. For the foregoing reasons, the Court finds that petitioner’s action has resulted in the enforcement of an important right affecting the public interest.

“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 benefit need not be monetary to be significant. (§ 1021.5 [defining “a significant benefit” as either “pecuniary or nonpecuinary”].) Where, as here, the nonpecuniary benefit to the public is the proper enforcement of the law, the successful party must show that the law being enforced furthers a significant policy. [Citation.]” (La Mirada, 22 Cal.App.5th at 1158.)

Respondents argue that, because the Court found that neither FER 259 nor the 2018 AP Zone Map conclusively establishes the existence of a fault trace, petitioner has not shown a significant benefit that was conferred on the general public or a large class of persons. (4/11/23 Minute Order at 4.) “[T]he significant benefit requirement of section 1021.5 requires more than a mere statutory violation.” (Burgess v. Coronado Unified School District (2020) 59 Cal.App.5th 1, 9.) However, 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.)

Here, FER 259 and the 2018 AP Zone Map show the existence of a potential fault trace in the vicinity of 1772 Glendon and 1751 Malcolm, where people reside. Ascertaining whether any threat of harm to the residents of the project is not unlike environmental actions in which a governmental agency is ordered to analyze or reassess environmental impacts associated with a proposed project, which courts have found to confer a significant benefit on members of the public living near a proposed project site. (See Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 737 [listing cases]; RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 782 [“With drought a persistent threat in California, public agencies and members of the public living and working near the proposed project site benefitted from the court's requiring DEH to specifically identify and address the sources of water necessary to construct and operate the landfill”].)

Here, the failure of real party to properly consider the potential existence of a fault near the project presents the threat of harm to the project’s residents. If further investigation were to establish the existence of an active fault, then efforts could be made to abate any such harm, including assessment of whether further retrofitting should be required. The Court finds that the instant lawsuit conferred a significant benefit on a large class of persons, specifically the residents of the apartments at issue.

“[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.)

Private enforcement was necessary in this case because the petitioner brought the action against the government agencies responsible for approving the construction of the project. (See Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 941 [“Inasmuch as the present action proceeded against the only governmental agencies that bear responsibility for the subdivision approval process, the necessity of private, as compared to public, enforcement becomes clear”].) Further, the financial burden of private enforcement warrants a fee award here, as petitioner did not obtain any financial relief from the judgment. (See Whitley, 50 Cal.4th at 1217 [“As a logical matter, a strong nonfinancial motivation does not change or alleviate the ‘financial burden’ that a litigant bears”].)

Respondents do not argue that private enforcement by petitioner was unnecessary or did not pose a financial burden. For the foregoing reasons, the Court finds that the necessity and financial burden of private enforcement by petitioner warrants a fee award under CCP § 1021.5.

Petitioner moves for $155,670.41 in fees and expenses. Petitioner’s request is comprised of (1) the fees on the merits, (2) the fees incurred in connection with the fee motion, and (3) out-of-pocket expenses.

With respect to the fees incurred in obtaining a favorable judgment, petitioner seeks a total of $130,515.00, calculated as follows:

The Court finds the asserted hourly rates to be reasonable under the circumstances, and respondents to not suggest otherwise.

Respondents contend that the fee request should be reduced by 15.60 hours, or a total of $12,480 (based on attorney Palmer’s hourly rate), on the ground that fees for pre-litigation administrative proceedings are not recoverable. Respondents’ citation to Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106 for this proposition is unavailing. In Beach Colony II, the Court of Appeal compared CCP § 1021.5 with CCP § 1028.5 and noted that the “absence of any reference to administrative proceedings in section 1021.5 suggests, at least, the section was not meant to apply to non-judicial aspects of an administrative proceeding.” (Beach Colony II, 166 Cal.App.3d at 116.) The Court of Appeal did not reach the issue of whether CCP § 1021.5 allows for the recovery of fees “incurred during the quasi-judicial portion of administrative proceedings from which judicial review is taken through writ procedures.” (Ibid.; see also Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1456 [“our holding in Beach Colony II left open the possibility that section 1021.5 allows attorney's fees arising from quasi-judicial, as opposed to quasi-legislative, administrative proceedings”].)

Attorney fees incurred in an administrative proceeding are compensable under CCP § 1021.5 if the administrative proceeding is “useful and necessary to the public interest litigation.” (Best, 193 Cal.App.3d at 1461; Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312, 1318-20.) Here, petitioner was required to exhaust its administrative remedies by filing an appeal with the Board of Building and Safety Commissions (“BBSC”) and create an administrative record. Therefore, the administrative proceeding was useful and necessary to this action. (See Best, 193 Cal.App.3d at 1461 [“Since the administrative proceedings here were the first step in the litigation leading to the mandamus proceeding (§ 1094.5), by their very nature they were useful and of a type ordinarily necessary to the public interest litigation”].) Fees may be awarded for the administrative proceedings to the extent they were reasonably incurred. Respondents do not argue that the fees incurred during the administrative proceedings were not reasonably incurred; their opposition to such fees is limited to the argument that they are not recoverable at all. The Court thus finds that petitioner may recover fees for the claimed 15.60 hours incurred for the administrative proceedings.

Respondents also contend that the lodestar should be reduced because petitioner only had limited success. “Courts have discretion to compensate a partially successful plaintiff for time spent on unsuccessful legal theories, provided such time was reasonably incurred.” (Environmental Protection Information Center v. Department of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 240.) In deciding the amount of an appropriate reduction, the Court examines the goals and objectives of petitioner. (Ibid. [“a reduction in the fee award may be appropriate where a plaintiff has failed to succeed on some of its claims”].) “California courts have tended to distinguish theories and claims by comparing the goals or objectives of the plaintiff's litigation with the relief ultimately obtained.” (Ibid.)

In the petition, petitioner asserted several theories: (1) respondents violated the AP Act and city regulations by failing to require any geologic investigation for the structure at 1772 Glendon (2/28/23 Minute Order at 36-37); (2) LADBS could not rely on studies from Applied Earth Sciences (“AES”) because AES did not comply with the AP Act and pertinent regulations (id. at 37-41); (3) the mitigation recommended by AES and approved by LADBS—a 10-foot setback, mat foundations, or cantilevering—and did not comply with the AP Act (id. at 44-46); and (4) new geologic data in FER 259 and the 2018 AP Zone Map warranted further investigation of the project (id. at 41-43). Petitioner did not prevail on the first three theories, which were essentially challenges to the City’s approval of the 2015-2015 geological studies and compliance measures.

Petitioner, however, did prevail on the fourth theory, which was essentially a challenge to the failure to conduct further geological investigation concerning the fault trace along the site. As a consequence, the Court issued a Writ of Mandate commanding LADBS to require HS Westside Properties, LLC to conduct further geological investigation and provide notice to the occupants of the apartment buildings at issue that forthcoming geologic seismic investigation will be undertaken. (4/24/23 Writ of Mandate at 2.)

The Court has discretion to compensate petitioner for time spent on the unsuccessful legal theories, i.e., all theories except for the one based on failure to further investigate based on new geologic data. “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.) The Court, however, declines to exercise such discretion to compensate petitioner for attorney time spent on its failed legal theories.

Rather, given that petitioner’s theories can be grouped into two types of challenges—(1) the challenge to the City’s approval of the prior study and compliance measures and (2) the challenge to the failure to conduct further geological investigation—the Court, in its discretion will award half of the claimed merits fees. In so doing, the Court recognizes that petitioner achieved its objective of effectuating a “critical state safety law intended to mitigate the hazard of surface faulting to structures for human occupancy” by obtaining further investigation to assure that the project adequately considers all fault traces in the vicinity. (Pet. ¶ 1.) Considering that the goal of the AP Act is to provide increased safety and minimize the loss of life during and immediately after earthquakes (CCP § 2621.5), which is promoted by the further investigation ordered by the Court, the Court finds that an award of 50% of the claimed fees is appropriate, even though petitioner succeeded on only one of four (i.e., 25%) of its asserted theories.

Petitioner also seeks 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 the requested 1.5 multiplier is warranted. Respondents do not dispute petitioner’s contention that no published case addressed when supplemental geologic reports were required in response to new geologic data. Counsel for petitioner’s skill in persuading the Court of the merit of its contention is demonstrated by the Court’s reliance on petitioner’s arguments in its briefing. (2/28/23 Minute Order at 3.) Counsel for petitioner also agreed to represent petitioner on a partially contingent basis with significantly reduced rates. (Palmer Decl. ¶ 2.) 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”].)

Accordingly, the Court awards petitioner $65,257.50 for fees incurred in obtaining a favorable judgment ($87,010 merits request x .5 for partial success x 1.5 multiplier).

With respect to the fees incurred in obtaining fees, petitioner seeks a total of $23,018.50, calculated as follows:

The Court finds the asserted hourly rates to be reasonable under the circumstances, and respondents to not suggest otherwise.

The Court finds that the hours billed for the motion and reply are excessive. In light of attorney Palmer’s relatively high hourly rate and experience in filing fee motions (Palmer Decl. ¶ 25), the Court finds that 8 hours for the motion and 4 hours for the reply are more appropriate. Accordingly, the fees for the fee motion are calculated as follows:

Petitioner seeks to recover $2,136.91 in costs. (Palmer Decl. ¶ 26 & Ex. B.) Respondents object to $1,547.80 of those costs, which petitioner incurred in appealing the issuance of the building permit and temporary certificate of occupancy issued for the project. (See 2/28/23 Minute Order at 33.) Respondents contend that the costs did not arise from the litigation itself and therefore were not “reasonably necessary to the conduct of the litigation.” (CCP § 1033.5(c)(2).) Because petitioner was required to exhaust its administrative remedies by appealing to the BBSC, as stated above, the Court finds that the costs incurred in appealing to the BBSC are recoverable under CCP § 1033.5(c)(4).

In the original briefing, petitioner did not state who should be responsible for paying the fee award. On August 29, 2023, the Court ordered the parties to file supplemental briefs addressing to whom any order of fees requested by petitioner should be directed. (8/29/23 Minute Order.)

On September 13, 2023, respondents filed a joint stipulation between them and real party in interest HS Westside Properties, LLC. The stipulation indicated that real party will not contest the fee award being directed to it. (9/13/23 Stipulation at 2:24-27.) This accords with case law finding that a real party can be held liable for attorney fees under CCP § 1021.5. “[A] real party in interest in a mandamus proceeding that has a direct interest in the litigation, more than merely an ideological or policy interest, and actively participates in the litigation is an opposing party within the meaning of Code of Civil Procedure section 1021.5 and can be liable for attorney fees under the statute.” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 161.) Real party has a direct interest in the litigation as the developer of the subject project. Moreover, real party joined in respondents’ opposition, filed a declaration in support of the opposition, and filed a brief proposing a remedy for the writ of mandate. (1/27/23 Joinder Brief; 4/4/23 Brief Regarding Potential Remedies.) Accordingly, the fee award will be directed against real party.

With respect to whether the fee award should be directed against respondents as well, respondents contend that the order of fees should be against real party only. (Resp. Supp. Brief at 2:18-19.) The joint stipulation states that real party agreed to indemnify respondents against all costs the City incurred in defending the approval of the project. (9/13/23 Stipulation at 2:8-12.) Irrespective of any indemnity agreement between respondents and real party, petitioner is entitled to a fee award against all opposing parties. “Generally speaking, the opposing party liable for attorney fees under section 1021.5 has been the defendant person or agency sued, which is responsible for initiating and maintaining actions or policies that are deemed harmful to the public interest and that gave rise to the litigation.” (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1176-77.) Respondents issued the building permits and certificates of occupancy from which this proceeding arose. Accordingly, respondents are opposing parties under CCP § 1021.5.

Respondents do not cite any authority supporting the notion that an indemnification agreement precludes the indemnitee from being an opposing party for purposes of CCP § 1021.5 and being held liable for the attorney fees of the successful party. San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738; Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 161; and Save the Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, all cited by respondents, address whether a real party in interest can be liable for attorney fees under CCP § 1021.5, but not whether the respondent governmental agency can be relieved from liability for fees under the statute pursuant to an indemnification agreement. Accordingly, the Court finds that attorney fees shall be imposed on respondents as an opposing party.

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 and costs incurred for the work performed in connection with the Petition for Writ of Mandate is $78,132.91 ($65,257.50 merits + $10,738.50 fee motion + $2,136.91 costs).

Such fees are awarded to petitioner Fix the City, Inc. and against respondents City of Los Angeles, Los Angeles Department of Building and Safety, and Board of Building and Safety Commissioners and real party in interest HS Westside Properties, LLC, jointly and severally. (See Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 838, citing Civ. Code § 1431 [“When an obligation is imposed on several persons it is presumed to be joint”].)

[1] In support of the Reply, counsel for petitioner submits a declaration showing that 12.8 hours were billed in preparation of the reply at an hourly rate of $800 for a total of $10,240. (Palmer Reply Decl. ¶ 2 & Ex. R.) However, petitioner only seeks $9,000 for the reply. (Palmer Reply Decl. ¶ 2.)

Timekeeper	Hours	Rate	Lodestar
Beverly Grossman Palmer	106.4	$800	$85,120.00
Michael J. Strumwasser	2.1	$900	$1,890.00
Total Fees Requested for Merits			$87,010.00
Additional Multiplier for Merits			$43,505.00
TOTAL FOR MERITS:			$130,515.00

Timekeeper	Hours	Rate	Lodestar
Beverly Grossman Palmer	16.1	$800	$12,880.00
Julia Michel	2.3	$495	$1,138.50
Fees for Fee Motion Reply and Argument (12.8 hours billed)[1]			$9,000.00
TOTAL FOR FEE MOTION:			$23,018.50

Timekeeper	Hours	Rate	Lodestar
Beverly Grossman Palmer	12	$800	$9,600.00
Julia Michel	2.3	$495	$1,138.50
TOTAL FOR FEE MOTION:			$10,738.50