Judge Curtis A. Kin, Case Number: 24STCP00195, Date: 2025-01-30 Tentative Ruling

24STCP02299 Luchia Tsegaberhan
The Petition will be granted. A copy of the signed decree will be available in Room 112 of the clerk’s office seven days after the date of the hearing.

Petitioner Supporters Alliance for Environmental Responsibility moves for an award of attorney fees in the amount of $447,872.50. Real party in interest Prairie Station, LLC moves to tax costs in the amount of $1,127.04. For the reasons that follow, both motions are GRANTED IN PART.

On May 25, 2023, petitioner filed the operative First Amended Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief. The First Amended Petition contained a sole cause of action for Violation of the California Environmental Quality Act (“CEQA”).

On July 18, 2024, the Court granted the petition. On September 12, 2024, the Court entered judgment in favor of petitioner and against respondents City of Inglewood and City Council of the City of Inglewood (collectively “City”) and real party in interest Prairie Station, LLC.

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.)

Petitioner’s request to take judicial notice and real party’s request to take judicial notice are DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.) The City’s request to take judicial notice of Exhibits A-C is GRANTED, pursuant to Evidence Code § 452(d). Petitioner’s evidentiary objections to the request for judicial notice and the declaration of Patrick E. Breen are OVERRULED.

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.)

Petitioner obtained a judgment in its favor. (9/12/24 Judgment.) Real party does not dispute that petitioner is the successful party. (Prairie Opp. at 7:8-9.)

The City, by contrast, contends otherwise, arguing that, prior to the hearing on the writ petition, real party, who is the developer for the proposed housing development, informed the Court that it would not proceed with the project due to financial reasons, thus purportedly mooting the matter. (See 7/17/24 Breen Decl.) That is beside the point. No party sought a determination of mootness or even a continuance of the matter. On the date of the writ trial, the respondent’s approval of the Project without preparation of an environment impact report (“EIR”) still stood, and the Court accordingly proceeded to adjudicate the live controversy as to its validity.

More to the point, petitioner obtained an order for the City to vacate the Mitigated Negative Declaration and its approval of the project. (9/12/24 Judgment ¶ 2.) Petitioner also obtained an order for the City to prepare and circulate an EIR should they reconsider the project. (9/12/24 Judgment ¶ 3.) The Court also ordered the City and real party not to proceed with the project until it complied with CEQA. (9/12/24 Judgment ¶ 4.) Petitioner obtained the judicial relief which it sought. (See FAP Prayer for Relief ¶¶ 2, 3.)

Because petitioner prevailed on the essential issue in the litigation, petitioner is the successful party under section 1021.5.

“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.)

“Where…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.” (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1158.)

Courts have held that the enforcement of CEQA implicates important rights affecting the public interest warranting application of CCP § 1021.5. (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 892 [citing cases]; see Rich v. City of Benicia (1979) 98 Cal.App.3d 428, 435 [“Unquestionably environmental concerns in general and the statutory policy in favor of use of environmental impact reports in particular involve preeminently important public rights”].) By obtaining a writ of mandate, petitioner enforced an important right affecting the public interest, namely, the enforcement of CEQA.

“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, 22 Cal.App.5th at 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.)

“[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, 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”].)

The City and real party argue that the Housing Accountability Act (“HAA”) limits fee awards where a local agency reasonably, but mistakenly, approved a housing development in violation of CEQA. Government Code § 65589.5(p)(1) states: “Upon any motion for an award of attorney’s fees pursuant to Section 1021.5 of the Code of Civil Procedure, in a case challenging a local agency’s approval of a housing development project, a court, in weighing whether a significant benefit has been conferred on the general public or a large class of persons and whether the necessity of private enforcement makes the award appropriate, shall give due weight to the degree to which the local agency’s approval furthers policies of” the HAA, including the policy to increase the approval and construction of new housing. (Gov. Code § 65589.5(p)(1), citing Gov. Code § 65589.5(a); see also, e.g., Gov. Code § 65589.5(a)(2)(K).) “It is the intent of the Legislature that attorney’s fees and costs shall rarely, if ever, be awarded if a local agency, acting in good faith, approved a housing development project that satisfies conditions established in paragraph (1), (2), or (3) of subdivision (a) of Section 65589.5.1 or paragraph (1), (2), or (3) of subdivision (a) of Section 65589.5.2.” (Gov. Code § 65589.5(p)(1).)

The HAA, however, expressly provides that it does not relieve the local agency from complying with CEQA. (Gov. Code § 65589.5(e).) The Court cannot find that the City acted in good faith in approving the Mitigated Negative Declaration. On December 19, 2022, counsel for petitioner raised environmental impacts arising from the project, including impacts to indoor air quality, special-status species, and greenhouse gases, in a letter. (7/18/24 Ruling at 6-7.) On December 20, 2022, counsel for petitioner advocated for the need for an EIR. (7/18/24 Ruling at 6-7.) Despite petitioner having presented substantial evidence of a fair argument that the project as mitigated may have a significant impact on the environment, the City Council voted to adopt the Mitigated Negative Declaration. The fact that the City Council may have disagreed that the project as mitigated would have a significant effect on the environment did not relieve the City and real party from having to prepare an EIR, especially when the definition of “substantial evidence” allows for differing opinions. (Guidelines § 15384(a) [defining “substantial evidence” as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached”].) Accordingly, the Court cannot find that the City acted in good faith in approving the project without an EIR having been prepared. Government Code § 65589.5(p)(1) does not prevent petitioner from recovering attorney fees.

The City argues that the HAA’s objectives were not promoted because the instant action resulted in a delay of construction that resulted in the abandonment of the Project. However, counsel for real party’s declaration, which informed the Court that real party would not proceed with the project, did not attribute the abandonment to the instant litigation. (See 7/17/24 Breen Decl.¶ 2 [attributing decision to Project no longer being “economically viable”].)

For the foregoing reasons, the Court finds that a significant benefit was bestowed on the general public or a large class of persons.

“[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 evaluating the “financial burden of private enforcement,” the Court evaluates the “costs of the litigation” as compared to “any offsetting financial benefits that the litigation yields or reasonably could have been expected to yield.” (Whitley, 50 Cal.4th at 1215.)

“The ‘necessity’ of private enforcement looks to the adequacy of public enforcement.” (Whitley, 50 Cal.4th at 1215, citing Lyons v. Chinese Hosp. Assn. (2006) 136 Cal.App.4th 1331, 1348.) Here, as the City acted contrary to CEQA in approving the Mitigated Negative Declaration without an EIR, private enforcement, i.e., petitioner’s commencement of this case, was necessary to enforce CEQA. (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”].)

Petitioner did not seek any particular pecuniary gain in the litigation. (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”].) Petitioner merely sought preparation of an EIR and compliance with CEQA. (Pet. Prayer for Relief ¶¶ 2, 3.)

Real party argues that petitioner has ties to a labor union and has a pattern and practice of filing or threatening to file CEQA actions to exact labor-friendly concessions from developers. As an initial matter, the Court notes that a petitioner’s pecuniary motives do not necessarily defeat a claim for attorney’s fees. As recognized by the court in Whitley, “the 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.)

That said, real party has certainly raised concerning ties between petitioner and labor unions that might beg the conclusion that petitioner has sufficient pecuniary interest in bringing CEQA challenges to development projects to defeat a claim for fees under section 1021.5. (See Breen Decl. ¶¶ 5-8.) But, without meaningful, admissible evidence to support it, this Court cannot find to be true at this time the hearsay assertion from attorneys representing developers in other matters that, in order to settle such other CEQA matters, “SAFER required that their clients enter into Project Labor Agreements (“PLA”) for their respective projects.” (Breen Decl. ¶ 6.) Moreover, for purposes of awarding attorneys’ fees in this matter, the evidence before the Court does not demonstrate that petitioner ever leveraged the instant action to obtain concessions from real party. (Supp. Lozeau Decl. ¶ 2 [“During the [one and only settlement] discussion, I, on behalf of SAFER, did not make any proposal involving any party entering into a Project Labor Agreement with any union entity”].)

For the foregoing reasons, based on the evidence before it, the Court finds the litigation costs exceeded any monetary reward that petitioner obtained or could have reasonably expected to obtain from the instant litigation. Petitioner has met its burden of “establishing that its litigation costs transcend its personal interest.” (See Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 113.) The Court finds that the necessity and financial burden of private enforcement by petitioner warrants a fee award under CCP § 1021.5.

After conceding to certain cuts based on the oppositions filed (Lozeau Reply Decl. ¶ 4; Reply at 9:10-13, 10:3-4), petitioner requests $447,842.50 in fees. That amount is based on a claimed lodestar of $330,145.00 with a 1.5 multiplier. (Lozeau Reply Decl. ¶ 4.)

The City argues that first-year associate Adam Frankel’s hourly rate should be reduced from $350 to $200 because associate time was billed at $200 per hour. (Lozeau Decl. ¶ 52.) However, counsel is entitled to fees based on the market rate. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 [“reasonable hourly rate is that prevailing in the community for similar work”].) A $350 hourly rate for a first-year associate is reasonable.

Further, the Court finds reasonable based on market rates the hourly rates for petitioner’s other counsel, including $1,000 for Michael Lozeau, $1,000 for Richard Drury, $500 for Brian Flynn, $300 for Marjan Abubo, as well as an hourly rate of $200 for the work provided by paralegals Margaret Green, Juliana Lopez, and Toyer Grear are reasonable. (Lozeau Decl. ¶¶ 2-10, 47-52.) In assessing reasonableness of the total fee award, however, the Court takes into account that these relatively higher rates demand greater efficiency of time spent on the litigation.

Petitioner asks for a 1.5 multiplier. The Court declines to apply a positive multiplier. Courts look to, among other factors, the “novelty and difficulty of the questions involved, and the skill displayed in presenting them.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48.) This case was not novel or complex. Petitioner’s petition for writ of mandate involved a straightforward review of whether an EIR was required. Indeed, respondents did not even challenge petitioner’s arguments as to why an EIR was required, choosing instead to argue whether petitioner had standing or had exhausted administrative remedies.

Rather than apply the requested positive multiplier to $330,145 lodestar amount, the Court finds more appropriate the use of a negative multiplier. In determining whether to apply a positive or negative multiplier, the Court considers all relevant factors including “‘(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.’ [Citation.]” (Cates v. Chiang (2013) 213 Cal.App.4th 791, 822, quoting Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) “Any one factor may be sufficient to apply a positive or negative multiplier.” (Cates, 213 Cal.App.4th at 822.) “‘[W]hen a trial court applies a substantial negative multiplier to a presumptively accurate lodestar attorney fee amount, the court must clearly explain its case-specific reasons for the percentage reduction.’ [Citation.]” (Snoeck v. ExakTime Innovations, Inc. (2023) 96 Cal.App.5th 908, 928, quoting Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 37.)

At its core, this case involved a straightforward analysis of whether an EIR was required. The Court finds that the difficulty of the case does not warrant a lodestar of $330,145. Moreover, the Court concludes that an across-the-board negative multiple is warranted due to numerous and various reasons to find the lodestar figure overstated, including: (1) given Drury and Lozeau’s $1,000 hourly rates, the skill evidenced by such rates necessarily requires a corresponding reduction for reasonable hours to perform tasks, including 46.7 hours claimed for the opening brief on the writ petition and the 44 hours claimed for the reply (Lozeau Decl. ¶¶ 19, 21 & Ex. A at 16-18, 20-21); (2) the petition is largely based on the letter submitted by Mr. Frankel to the City during the project review and accordingly should not have required 28.9 hours of preparation (Lozeau Decl. ¶ 15); (3) the 32 hours claimed for the City’s motion for an order to show cause based on the timing of petitioner’s statement of issues was due to petitioner’s error (Lozeau Decl. ¶ 20; Breen Decl. ¶ 15); (4) over 10 hours for preparing, negotiating, and filing the proposed judgments is excessive (Lozeau Decl. ¶ 25); (5) claiming 9.4 hours to prepare a the memorandum of costs is excessive (Lozeau Decl. ¶ 26); and (6) counsel’s 60 hours for preparing a motion for attorney fees, 37.6 hours to prepare the reply papers, and 8.6 hours to prepare the opposition to the motion to tax costs are excessive for such routine matters. (Lozeau Decl. ¶ 27; Lozeau Reply Decl. ¶ 3.)

Given the foregoing, including numerous instances of overstated hours for the particular work, the Court applies a negative multiplier of 0.5 to the lodestar. (Snoeck, 95 Cal.App.5th at 921 [court may make “across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure”].) Accordingly, the Court finds that petitioner is entitled to a fee award of $165,072.50.

On September 25, 2024, petitioner filed a Memorandum of Costs in the amount of $17,299.90.

Real party moves to tax $887.03 that petitioner claimed for travel costs to attend the hearing on the writ petition. Real party also moves to tax $240.01 claimed for “three overnight deliveries to court of courtesy copies of joint appendix, trial notebook, case management stipulation, opening brief, and response to RJN.”[1]

The Court declines to tax the travel costs. Costs not expressly prohibited in CCP § 1033.5 are allowed to the extent “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (CCP § 1033.5(c)(2).) Real party contends that petitioner’s counsel could have attended the hearing on the writ petition virtually. Given connectivity issues that sometimes arise with virtual appearances or the often more effective advocacy that can occur in person, counsel’s decision to appear in court was reasonably necessary.

However, the same does not apply to the cost of overnight deliveries. Electronic filing, regular mail, and/or Express Mail would have sufficed. Accordingly, the motion is GRANTED IN PART. Petitioner’s costs are taxed in the amount of $240.01.

Petitioner’s motion for attorneys’ fees 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 writ petition is $165,072.50 to be awarded to petitioner Supporters Alliance for Environmental Responsibility and against respondents City of Inglewood and City Council of the City of Inglewood and real party in interest Prairie Station, LLC, jointly and severally.

Real party in interest Prairie Station, LLC’s motion to tax costs is GRANTED IN PART. Petitioner’s costs are taxed in the amount of $240.01.

[1] Real party initially moved to tax $13,515.00 for paralegal costs associated with preparation of the administrative record but withdrew the issue. (Reply at 1:26-2:1.)