Judge: Curtis A. Kin, Case: 22STCP03070, Date: 2024-05-07 Tentative Ruling

Case Number: 22STCP03070    Hearing Date: May 7, 2024    Dept: 86

Cross-petitioners American Federation of State, County, and Municipal Employees, District Council 36, et al. (“Coalition”) move for an award of attorney fees and costs in the amount of $385,235.38, comprised of $378,397.50 for fees and $6,837.88 in costs.  The Motion is GRANTED IN PART.

I.       Background

On August 17, 2022, the City of Los Angeles (“City”) filed a Petition for Writ of Mandate against the Los Angeles City Employee Relations Board (“ERB”), with the Coalition as real parties in interest.

On September 22, 2022, the Coalition filed a Cross-Petition for Writ of Mandate against the City, with International Brotherhood of Electrical Workers, Local 18 as the real party in interest.

On November 27, 2023, the Court denied the City’s petition and granted the Coalition’s cross-petition. On January 24, 2024, the Court entered judgment in favor of the Coalition.

II.      Analysis

A.           Entitlement to Fees under Code of Civil Procedure § 1021.5

The Coalition 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.)

1.            Successful Party

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, the Coalition succeeded in obtaining a writ directing the City to comply with ERB Decision No. U-228 and the June 27, 2022 order issued in that matter. (1/24/24 Judgment ¶¶ 2, 3.) The ERB ordered the City to bargain over the effects of Water and Power Employees’ Retirement Plan’s (“WPERP”) decision to suspend reciprocity. (AR 4212-13.) The ERB also ordered the City to “make whole Coalition-represented employees who have sustained any losses (including a reduced pension or other benefits) due to unilateral changes implemented on or after January 1, 2014 to the manner in which WPERP years of service are treated or who sustain any such losses in the future, with any compensation awarded to be augmented by interest at a rate of 7 percent per year, from the date any impacted employee began to experience harm ….” (AR 4213.)

Although the Coalition had prevailed on certain issues, the ERB also found that the City did not violate the City’s Employee Relations Ordinance (“ERO”) by failing to provide the Coalition with notice and an opportunity to bargain over WPERP’s decision to suspend reciprocity. (AR 4212.) The ERB also found that the City did not violate the ERO by failing to provide the Coalition with notice and an opportunity to bargain over the City’s decision to withdraw its opposition to WPERP’s suspension of reciprocity. (AR 4212.)

Thus, while the Coalition did not prevail on all issues, the Coalition did prevail with respect to the requirement to bargain over the effects of the suspension of reciprocity and the make-whole remedy starting from January 1, 2014. The crux of the Coalition’s Unfair Employee Relations Practice (“UERP”) charges against the City was that the City had unilaterally changed the reciprocity agreement between Los Angeles City Employees’ Retirement System (“LACERS”) and WPERP without meeting and conferring beforehand to mitigate the impact of the suspension of reciprocity, in violation of Employee Relations Ordinance §§ 4.830(a), 4.857, 4.860(a)(1), and 4.860(a)(3). (AR 1859.) By having its cross-petition for writ of mandate granted, the Coalition vindicated its right to bargain over changes to terms of employment and potentially diminish any negative impacts.  This was a significant issue in the dispute between the Coalition and the City.

Because the Coalition prevailed on a significant issue in the litigation, the Court finds that the Coalition qualifies as a successful party under section 1021.5.

2.            Enforcement of Important Right Affecting the Public Interest

“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.)

The meet and confer obligations under the Meyers-Milias-Brown Act (“MMBA”), which governs employment relations between the City and its recognized bargaining units for its employees, are important rights affecting the public interest. (See Indio Police Command Unit Assn. v. City of Indio (2014) 230 Cal.App.4th 521, 542, citing People Ex Rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 594 and Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 12–13 [finding that trial court did not abuse its discretion in finding that important right affecting public interest concerning meet and confer obligations under the MMBA was enforced].) “Attorney fees have consistently been awarded for the enforcement of well-defined, existing obligations.” (Riverside Sheriff's Assn. v. County of Riverside (2007) 152 Cal.App.4th 414, 422, internal citations and quotations omitted.) By obtaining a writ of mandate, the Coalition enforced an important right affecting the public interest by ensuring that public employees have the opportunity to bargain over the effects of changes to their terms of employment. (See Indio Police, 230 Cal.App.4th at 536.)

3.            Significant Benefit Conferred on General Public or Large Class of Persons

“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.]” (Id. at 1158.)

“[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.)

For the reasons stated above with respect to enforcement of an important right, the Coalition 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”].) The City contends that the ERB’s decision only affects the employees who have transferred from WPERP to LACERS. However, “courts are not required to narrowly construe the significant benefit factor.” (See Indio Police, 230 Cal.App.4th at 543.) A fee award does not require a great public benefit. (Ibid., citing Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 894.) By obtaining a writ of mandate, the Coalition vindicated its right to “full communication between public employers and their employees” concerning the terms of employment under the MMBA. (See Gov. Code § 3500(a).)

4.            Necessity and Financial Burden of Private Enforcement

“[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.) The Court notes the City does not contend in its briefing that the necessity and financial burden elements of a CCP § 1021.5 award sre not satisfied.

Private enforcement was necessary in this case because the petitioner brought the action against a government entity that refused to comply with the ERB’s make-whole remedy. (See Woodland Hills Residents Assn., Inc., 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”].)

With respect to whether petitioner’s financial burden in pursuing writ relief warrants a fee award, “[T]he purpose of section 1021.5 is not to compensate with attorney fees only those litigants who have altruistic or lofty motives, but rather all litigants and attorneys who step forward to engage in public interest litigation when there are insufficient financial incentives to justify the litigation in economic terms.” (Whitley, 50 Cal.4th at 1211.)

Here, the Coalition did not obtain any financial relief from the judgment, such as increased union dues or membership. (See id. at 1217 [“As a logical matter, a strong nonfinancial motivation does not change or alleviate the ‘financial burden’ that a litigant bears”].) The Coalition only obtained a writ directing the City to comply with the ERB’s decision. Moreover, the writ of mandate affects not just employees who transferred from WPERP to LACERS, but also all City employees represented by City unions who now have clarity regarding the City’s obligations to bargain over effects to changes in terms of employment and the right to a make-whole remedy for violation of effects bargaining obligations.

Based on the foregoing, the Court finds that the necessity and financial burden of private enforcement by the Coalition warrants a fee award under CCP § 1021.5.

B.           Reasonableness of Fees and Costs Requested

The Coalition moves for $378,397.50 for fees and $6,837.88 in costs. The amount is based on the lodestar and does not include a multiplier.

1.            Fees

The Coalition seeks $378,397.50 for fees, as detailed in the following table:

(Weinstein Reply Decl. ¶ 5 & Ex. F.) The fee request includes the work from the remedy phase of the ERB proceeding through the preparation of a reply on the instant fee motion. (Weinstein Motion Decl. ¶ 7; Weinstein Reply Decl. ¶ 5.)

The asserted hourly rates are reasonable. The Court is not obligated to compensate the Coalition’s counsel at the hourly rate of the City’s counsel or reduce the fees because the City is a public entity. (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1356 [“a distinction between private and public defendants would be inconsistent with the purposes underlying section 1021.5”]; Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473-74 [trial court not obliged to base hourly rate on opposing counsel’s lower hourly rates].) The City cites Estate of Baum (1989) 209 Cal.App.3d 744, 753 for the proposition that “the total burden on the public entity [may] not exceed a sum sufficient to reimburse reasonable attorney fees as judged by an objective standard from the point of view of the public entity.” However, this holding was based on CCP § 1036, where the Legislature intended to limit fee awards to amounts reasonably incurred to protect the public. (Estate of Baum, 209 Cal.App.3d at 752-53.) A fee award under CCP § 1021.5 does not share similar concerns.

With respect to the work prior to the instant fee motion, having reviewed the billing records filed by the Coalition (Weinstein Motion Decl. ¶ 7 & Ex. B), the Court finds the fee request to be reasonable. The remedy phase of the ERB proceeding started in 2019. As explained by the Coalition’s counsel and not disputed by the City, “when Cross-Petitioners began litigating the ERB proceeding below, the caselaw concerning what remedy should be ordered if the ERB found only an effects bargaining violation was imprecise, and that uncertainty was not clarified by PERB until years into the parties litigating the remedy phase.” (Weinstein Motion Decl. ¶ 6.) Further, the Public Employment Relations Board decision in SEIU Local 99 v. The Accelerated Schools, PERB Dec. No. 2855, upon which the Court relied in its ruling on the City and the Coalition’s respective petitions, was not issued until March 17, 2023—after the underlying ERB decision and before briefing on the writ petitions. Based on the uncertainty and complexity concerning the issue of whether the ERB had the authority to order a make-whole remedy, the time the Coalition’s counsel spent researching, briefing, and preparing for oral argument in the underlying proceeding and the instant writ proceeding was reasonable.

With respect to the instant fee motion, the Coalition seeks the following fees:

(Weinstein Motion Decl. ¶ 7 & Ex. B; Weinstein Reply Decl. ¶ 5 & Ex. E.) Even if counsel does not regularly draft CCP § 1021.5 motions (Weinstein Reply Decl. ¶ 4), 83.3 hours is objectively excessive. A reduction of 60%, or $29,418, is warranted. Accordingly, petitioner’s request for fees is GRANTED IN PART in the amount of $348,979.50 ($378,397.50 fee request - $29,418 fee motion).

2.            Costs

Petitioner seeks $6,837.88 in costs. (Weinstein Motion Decl. ¶ 9 & Ex. E.) However, petitioner did not file a memorandum of costs within 15 days of January 25, 2024—when notice of entry of judgment was served—in violation of Rule of Court 3.1700(a)(1). In fact, no memorandum of costs has been filed. Accordingly, the request for costs is DENIED.

III.     Conclusion

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 is $348,979.50. Such fees are awarded to cross-petitioners American Federation of State, County, and Municipal Employees, District Council 36 et al. and against respondent City of Los Angeles.