Judge James C. Chalfant, Case Number: 30, Date: 2023-12-12 Tentative Ruling

Case Number: 30-2019-01044945 Hearing Date: December 12, 2023 Dept: 85

Intervenor Kennedy Commission (“Kennedy”) moves for an award of $262,829.25 in attorney’s fees on appeal, plus $51,650 for the fee motion, for a total of $314,479.25.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner City of Huntington Beach (“City”) commenced this proceeding on January 17, 2019, in the Orange County Superior Court. The Second Amended Petition (“SAP”), filed on December 9, 2019, is the operative pleading and it alleges claims for traditional mandamus pursuant to CCP section 1085 and declaratory relief. The FAP alleges in pertinent part as follows.

SB 35 when into effect on January 1, 2018 and amended Government Code[1] sections 65400, 65582.1, and 65913.4. SB 35 was part of a “housing package” intended to address the state’s alleged housing shortage and high housing cost. The Legislature declared that SB 35 applies to all cities and counties, including charter cities. In part, SB 35 requires cities[2] that have not made sufficient progress towards meeting their allocation of the regional housing need assessment (“RHNA”).[3] SB 35 seeks to create a system where the State controls how, where, and when housing is built in every city in California. The effect of SB 35 is to unconstitutionally commandeer cities’ discretionary land use authority and permits State to “rezone” a city’s local land use for political purposes.

AB 101 went into effect in August 2019 and amended multiple sections of the Government Code, Health and Safety Code, Public Resources Code, and Revenue and Taxation Code. The unconstitutional portions of this bill were introduced as part of a budget trailer bill that was touted to incentivize jurisdictions to build more housing and assist in providing housing to the homeless.

On October 9, 2019, the Governor signed SB 113 into law which amended sections 65585 and 65589.11. AB 101, as amended by SB 113, now requires that the Attorney General follow a specific statutory procedure if HCD finds that a city's housing element is not substantially compliant with state law. AB 101 makes a capricious finding that the new law is a matter of statewide concern and therefore applicable to charter cities. AB 101 requires HCD to notify a city or county and authorizes HCD to notify the office of the Attorney General, that the city or county is in violation of state law if the local government has taken action in violation of specified provisions of law. The Attorney General must then request that the court issue an order or judgment directing a violating city to bring its housing element into substantial compliance, and the penalty for noncompliance is a fine of $10,000 per month, with the possibility of multipliers for continued noncompliance.

City’s right to control the use of land within its jurisdiction has been consistently recognized by the California Supreme Court as a municipal affair. As a charter city, City has supreme authority over the regulation of land use and zoning within its borders. SB 35 and AB 101 violate the municipal affairs doctrine, which provides that a charter city will not be governed by state law in respect to municipal affairs. The regulation of local land use and local zoning is a vital and core function of local government and therefore is a municipal affair of a charter city.

State has a clear, present, and ministerial duty to administer the California Constitution and laws of the state, including SB 35 and AB 101, without interfering with City’s zoning and land use authority. State’s action in enacting SB 35 unconstitutionally ignores and undermines City’s rights as a charter city under the municipal affairs doctrine to the detriment of the health, welfare, and safety of its residents, as well as the authority of a charter city to establish and provide for an orderly system of zoning and land use regulations.

City seeks a writ of mandate and declaratory relief prohibiting State from enforcing SB 35 and AB 101.

Petitioner City commenced this proceeding on February 1, 2019 in the Orange County Superior Court. The Petition alleges claims for traditional mandamus pursuant to CCP section 1085 and for declaratory relief. The Petition alleges in pertinent part as follows.

SB 166 amended section 65863 regarding “No Net Loss” local zoning and land use. SB 166 was part of a housing package intended to address the state’s alleged housing shortage and high housing cost. When enacting SB 166, the Legislature correctly determined that the law would not apply to charter cities.

In 2018, the Legislature enacted SB 1333, which again amended section 65863 and through post hoc rationalization declared that it applies to all charter cities. The unconstitutional mandates of SB 166 impermissibly strip City’s constitutionally protected charter city authority with respect to local zoning municipal affairs.

In conjunction with SB 1333, SB 166 creates a system where State controls how, where, and when housing is built in every city in California, regardless of charter city status, and unconstitutionally purports to vest and exercise authority in the state to rezone established local land designations for political purposes.

City’s right to control the use of land within its jurisdiction has been consistently recognized by the California Supreme Court as a municipal affair. As a charter city, City has supreme authority over regulation of local land use and zoning within its borders. SB 166 violates the municipal affairs doctrine, which provides that a charter city will not be governed by state law in respect to municipal affairs. The regulation of local land use and local zoning are vital and core functions of local government, and therefore municipal affairs, of a charter city.

State has a clear, present, and ministerial duty to administer the California Constitution and laws of the State of California, including section 65863, without interfering with City’s zoning and land use authority. In enacting SB 166 and SB 1333, the Legislature unconstitutionally ignored and undermined City’s rights as a charter city to control the zoning and land use designations within its borders to the detriment of the health, welfare, and safety of its residents.

City seeks mandamus prohibiting State from enforcing amended section 65863 against it and a declaration that section 65863, as amended by SB 166 and SB 1333, is an unconstitutional overreaching into a charter city’s ability to create local zoning schemes.

Petition 30-2019-01044945 (concerning SB 35) and Petition 30-2019-01048692 (concerning SB 166 and SB 1333) are Orange County Superior Court cases that were assigned to the court on March 19, 2019. On June 4, 2019, the court consolidated the two cases with 30-2019-01044945 as the lead case. The parties stipulated that, although properly declaratory relief, the case may be tried on paper as mandamus.

On July 25, 2019, the court granted the Kennedy’s motion for permissive intervention. The court also granted Housing California (“Housing”) and the California Coalition for Rural Housing (“CCRH”) leave to intervene on the condition that they and Kennedy file a joint intervenors’ brief.

On January 28, 2021, the court denied the City’s petition for writ of mandate but granted the declaratory relief claim, issuing a declaration that the Housing Bills do not violate the municipal affairs doctrine of the California Constitution and may be enforced.

On March 3, 2021, CCRH and Housing filed their memorandum of costs. On March 6, 2021, Kennedy filed its memorandum of costs. On March 18, 2021, Petitioner City filed a motion to strike the Intervenors' memoranda of costs which the court denied on May 27, 2021.

On October 26, 2021, the court granted Intervenors Kennedy’s motion for attorney’s fees, and denied a fee motion by CCRH and Housing. The original award was for a $103,225.69 lodestar plus $40,329 for the fee motion, a total of $143,544.69.

On November 3, 2021, the court recalculated the amount of Kennedy’s lodestar as $103,675.69 and total attorney’s fees award as $144,004.69.

CCP section 1021.5 (“section 1021.5”) codifies the “private attorney general” exception to the general rule that each side bears its own fees unless the parties contracted otherwise. See CCP §1021. Section 1021.5 permits a trial court to award fees to a successful party in any action that: “has resulted in the enforcement of an important right affecting the public interest if (a) a significant benefit has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery. The issue is committed to the trial court’s discretion. Flannery v. California Highway Patrol, (“Flannery”) (1998) 61 Cal.App.4th 629, 634.

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp., (“Graham”) (2004) 34 Cal.4th 553, 565. The party seeking attorney’s fees need not prevail on all of its alleged claims in order to qualify for an award. Harbor v. Deukmejian, (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney, (1983) 146 Cal.App.3d 42, 55. The party is considered successful under section 1021.5 if the litigation “contributed substantially to remedying the conditions at which it was directed.” Planned Parenthood v. Aakhus, (1993) 14 Cal.App.4th 162, 174. In other words, the “successful” party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (2004) 34 Cal.4th 604, 610. A prevailing party who qualifies for an award under section 1021.5 are entitled to compensation for all hours reasonably spent by their counsel. Serrano v. Unruh, (“Serrano”) (1982) 32 Cal.3d 621, 632–33.

Unlike the separate substantial benefit doctrine, “the ‘significant benefit’ that will justify an attorney fee award need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.” Woodland Hills Residents Assn., Inc. v. City Council, (1979) 23 Cal.3d 917, 939. “[T]he benefit may be conceptual or doctrinal and need not be actual or concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient.” Braude v. Automobile Club of Southern Cal., (1986) 178 Cal.App.3d 994, 1011. Moreover, the extent of the public benefit need not be great to justify an attorney fee award. See, e.g., Protect Our Water v. County of Merced, (2005) 130 Cal.App.4th 488, 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939–940.

The party seeking attorney’s fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941. Although cases refer to this requirement as the “financial burden” criterion, nothing in the language of CCP section 1021.5 limits the consideration of the necessity and financial burden clause to solely financial interests. Hammond v. Agran, (2002) 99 Cal.App.4th 115, 125. “The idea is that the litigation for which fees are claimed must transcend one's interests, whether pecuniary or not.” Id. at 127. The question is whether advancement of the public interest was merely coincidental to the attainment of the party’s personal goals. Bowman v. City of¿Berkeley (“Bowman”) (2005) 131 Cal.App.4th 173, 181. The party seeking attorney’s fees bears the burden of establishing that its litigation costs transcend its personal interests. Save Open Space Santa Monica Mountains v. Superior Court, (“Save Open Space”) (2000) 84 Cal.App.4th 235, 247. The trial court's application of the financial burden criterion involves a “realistic and practical comparison of the litigant's personal interest with the cost of suit.” Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors (“Families Unafraid”), (2000) 79 Cal.App.4th 505, 515.

On October 26, 2021, this court awarded Kennedy $143,554.69 in attorneys’ fees (“2021 Order”). RJN Ex. 6, p. 31. It also ordered the City and Kennedy to meet and confer regarding the correct amount. RJN Ex. 6, p. 31. On November 3, 2021, the court amended the awarded amount to $144,004.69. RJN Ex. 6, p. 31.

On March 9, 2022, the City filed a Notice of Appeal from this court’s award of attorney’s fees to Kennedy under section 1021.5. RJN Ex. 1. On March 28, 2022, Kennedy filed a Notice of Cross-Appeal. RJN Ex. 1.

On April 8, 2022, Kennedy emailed the City’s counsel, proposing that they file a joint appendix. Reisman Decl., ¶36, Ex. 13. This would ensure the record contained only the documents the appellate court will need to decide the Appeal. Reisman Decl., ¶36, Ex. 13. On April 11, 2022, the City rejected the offer because it believed a complete record would be useful. Reisman Decl., ¶36, Ex. 13.

On May 6, 2022, the City designated the record on appeal. Reisman Decl., ¶37. The 290-page clerk’s transcript did not include this court’s rulings or the parties’ briefings on either the merits of the SAP or the motion for attorney’s fees. Reisman Decl., ¶37.

On August 18, 2022, the City filed a motion to augment the record with 4,478 additional pages. Reisman Decl., ¶37. The motion was unopposed, and the appellate court granted it. RJN Ex. 1.

The City filed its opening brief and a motion to take judicial notice on August 18, 2022. RJN Exs. 1-3. The motion to take judicial notice sought to introduce the City’s opening brief in another case concerning an award of attorneys fees for Kennedy, Kennedy Commission v. City, (“Kennedy”), Case No. E078403 and the docket for that case. RJN Ex. 3. pp. 2, 19.

The City’s brief on the merits argued that this court (1) erroneously found Kennedy was an intervenor, (2) erroneously found it was entitled to attorney’s fees even when the named defendant was not, (3) erroneously found it met the requirements of section 1021.5, and (4) applied the wrong legal standard and abuse its discretion in awarding attorney’s fees based on falsified billing. RJN Ex. 2, pp. 23-24.

The City argued Kennedy was an amicus, not an intervenor, because it lacked a direct interest in the lawsuit and it improperly broadened the scope of litigation. RJN Ex. 2, pp. 25, 27, 31. Kennedy also never properly intervened because it never filed an Answer. RJN Ex. 2, pp. 32-33. The City had opposed the motions to intervene by Kennedy, CCRH, and Housing based on their failure to meet the requirements of CCP section 387. RJN Ex. 2, p. 17.

The City then argued Kennedy was limited to the same relief as the State, which cannot seek or be awarded attorney fees under the law. RJN Ex. 2, p. 33. Holding otherwise would encourage any public interest group to “ride the coattails” of the State to seek attorney fees, which several authorities refute. RJN Ex. 2, pp. 33, 35.

The City also challenged this court’s findings as to elements of section 1021.5. RJN Ex. 2, pp. 36, 37-38, 40. The court’s finding of widespread impact contradicted its earlier statement that any finding in this case was limited to this City. RJN Ex. 2, p. 38. Private enforcement was not necessary because the Attorney General defended the case. RJN Ex. 2, p. 39. Kennedy did not raise an argument that the State did not cover itself. RJN Ex. 2, p. 40.

As to reasonableness of fees, the City argued this court’s decision erroneously required the City to demonstrate the deficiencies of billing records. RJN Ex. 2, p. 44. The court should have denied the motion for fees outright so as not to reward Kennedy for fraudulent billing practices. RJN Ex. 2, p. 44. Cases have held that awarding reasonable fees based on outrageously unreasonable demands encourages such demands and a “severer reaction” is necessary. RJN Ex. 2, p. 47. The City outlined specific entries and tasks for which it argued Kennedy had inflated the hours spent. RJN Ex. 2, pp. 47-49.

On August 26, 2022, Kennedy filed a request for dismissal of its cross-appeal and it was dismissed by the appellate court the same day. RJN Ex. 1. The appellate court noted that the remainder of the appeal would be unaffected by this dismissal. RJN Ex. 1. Kennedy remained a respondent to the City’s appeal. RJN Ex. 1.

On September 2, 2022, Kennedy filed an opposition to the City’s motion to take judicial notice. RJN Exs. 1, 4. The names of counsel on the caption page included Terra Castillo Laughton, Esq. (“Laughton”). RJN Ex. 4, p. 1. Kennedy argued that the City sought to judicially notice the facts within the attached exhibits rather than the existence of the documents themselves. RJN Ex. 4, pp. 11-12. It also argued the City had not presented these documents to the trial court and failed to demonstrate exceptional circumstances that warranted judicial notice on appeal. RJN Ex. 4, pp. 14-16. On September 6, 2022, the appellate court stated that it would decide the judicial notice issue with the decision on appeal. RJN Ex. 1.

On October 4, 2022, Kennedy filed its opposition on the merits. RJN Exs. 1, 6. The names of counsel on the caption page included Laughton. RJN Ex. 6, p. 1.

Kennedy noted that the appellate court should uphold the award of attorney’s fees under section 1021.5 unless the trial court had abused its discretion. RJN Ex. 6, p. 36. Any factual findings were subject to substantial evidence review, not de novo review. RJN Ex. 6, p. 38, n. 6.

The City’s challenge to the trial court decision permitting Kennedy to intervene was not timely appealed. RJN Ex. 6, p. 39. The City also failed to make the arguments it now makes in its opposition to the motion to intervene. RJN Ex. 6, p. 42. Although it did oppose the motion in the trial court, the City only made three narrow arguments against intervention. RJN Ex. 6, p. 43. In any case, Kennedy had a direct interest in the action, its intervention was procedurally proper, and it did not broaden the scope of litigation. RJN Ex. 6, pp. 46, 51. The court’s decision to grant intervention was well within its discretion. RJN Ex. 6, p. 44.

Kennedy then asserted the City had misconstrued case law that an intervenor may recover fees “on equal terms with the original parties.” RJN Ex. 6, p. 56. This language does not limit intervenors to the relief the original parties obtain; it allows intervenors to move for attorney’s fees based on the same showing it would need to make if it were an original party. RJN Ex. 6, p. 56.

Kennedy outlined why it met the requirements of section 1021.5. The lawsuit did confer a significant benefit on the public because the judgment applies to 121 charter cities. RJN Ex. 6, p. 64. Case law also expressly allows private parties litigating alongside government parties to seek attorney’s fees under section 1021.5. RJN Ex. 6, pp. 68-69. Kennedy contributed unique and valuable services in opposition to the writ. RJN Ex. 6, p. 72. Although the City asserted that Kennedy did not make any arguments the State did not also make, the trial court was in the best position to say whose brief it relied on. RJN Ex. 6, pp. 73-74.

As for the reasonableness of fees, the trial court did not abuse its discretion in issuing the fee award. RJN Ex. 6, p. 76. It cut the requested fees by 75% to reach what it determined was a reasonable amount, even after Kennedy had made reductions on its own. RJN Ex. 6, pp. 76-78. The City asserted that Kennedy’s fees were drastically unreasonable and the trial court should have denied them in full. RJN Ex. 6, p. 81. Although the City cited cases hold that such a special circumstance can merit a complete denial of the award, those cases affirmed reduced fee awards as still within the court’s discretion. RJN Ex. 6, pp. 81-82. The appellate court cannot make its own reasonableness assessment because its role is not to second-guess the trial court. RJN Ex. 6, pp. 82-83.

On November 2, 2022, the City filed its reply brief in support of the motion for judicial notice and the next day City filed its reply brief on the merits. RJN Ex. 1.

The appellate court heard oral argument on March 22, 2023. RJN Ex. 1. On June 14, 2023, the appellate court issued its opinion, affirming the trial court’s judgment without ruling on the judicial notice motion. RJN Exs. 1, 7. The court held that the City should have filed an appeal from the trial court’s grant of Kennedy’s’ intervention if it wanted to contest that issue. RJN Ex. 7, pp. 5-6.

The court agreed with Kennedy that it should review an award of attorney’s fees under section 1021.5 for abuse of discretion. RJN Ex. 7, p. 5. It then found the court had not abused its discretion and had correctly decided the issues of law now on appeal. RJN Ex. 7, p. 2.

The decision also rejected the argument that an intervenor is limited to the same attorney’s fees as an original party to the action. RJN Ex. 7, pp. 6-9. The City cited no cases discussing whether attorney fees could be awarded under section 1021.5 to a private litigant co-litigating with the State. RJN Ex. 7, p. 6. To hold otherwise would discourage anyone from joining with the Attorney General in public interest litigation. RJN Ex. 7, pp. 8-9. The trial court found that Kennedy advanced significant legal theories and non-duplicative evidence that contributed to the judgment. RJN Ex. 7, p. 7.

For the elements of section 1021.5, the trial court did not abuse its discretion in finding the enforcement of housing laws to address a low-cost housing crisis was an important right affecting the public interest with widespread impact. RJN Ex. 7, p. 10. The City argued that the trial court previously said the lawsuit would have “no impact”, but this statement was made in response to Housing’s motion to intervene, and the court stated a ruling in the City’s favor would have no impact outside the City unless it was appealed. RJN Ex. 7, pp. 10-11. As a result, the City’s residents were the “public” receiving significant benefit under section 1021.5. RJN Ex. 7, p. 11.

The City also misquoted the trial court as saying at the motion to intervene hearing that the State was “fully capable of defending itself.” RJN Ex. 7, p. 11, n. 9. The court had only said that to justify denying Housing’s motion to intervene after it had granted Kennedy’s motion. RJN Ex. 7, p. 11, n. 9.

The trial court did not abuse its discretion when it held Kennedy’s efforts were not unnecessary and duplicative of the State’s. RJN Ex. 7, pp. 10-11. It was in the best position to know as much. RJN Ex. 7, p. 11. In that regard, the appellate court trusted the City would not call this court a liar as quickly as it called Kennedy’s attorneys liars. RJN Ex. 7, p. 11.

On the reasonableness of the fees, the City’s argument as to burden of proof revealed its misunderstanding as to how fee motions work. RJN Ex. 7, p. 12. Billing statements create a prima facie case for reasonableness of the fees therein. RJN Ex. 7, p. 12. If the opposing party objects, it must identify the specific items to discount and explain why. RJN Ex. 7, p. 12. The City did not dispute before the trial court the same items it disputed on appeal. RJN Ex. 7, p. 13, n.1. Although the trial court had the discretion to deny fees outright for excessive billing, it was not required to do so. RJN Ex. 7, p. 12.

As to CCRH’s cross-appeal, the appellate court affirmed the ruling that it was ineligible for attorney fees under section 1021.5. RJN Ex. 7, pp. 13, 17.

The appellate court affirmed the trial court concluded that Kennedy was to recover its costs of the City’s appeal. RJN Ex. 7, p. 18.

All firms have audited their timesheets with considerable billing judgment to remove hours. Darmer Decl., ¶14; Rawson Decl., ¶25.

Roman Darmer, Esq. (“Darmer”) graduated from Yale Law School in May 1987 and clerked for the U.S Court of Appeals for the Ninth Circuit. Darmer Decl., ¶2. He has been a partner at Jones Day since 2010 and its Irvine Pro Bono Coordinator since 2012. Darmer Decl., ¶7, Ex. 8.

Darmer was the primary attorney at Jones Day for Kennedy in this matter. Darmer Decl., ¶10. Aside from him, Jones Day only seeks recovery for fees incurred by associates Debbie Chen, Esq. (“Chen”) and JoeAL Akobian Esq. (“Akobian”). Darmer Decl., ¶¶ 10, 15, Ex. 9. Its billing sheet only reflects hours incurred during the Appeal, not the motion for attorney’s fees. Darmer Decl., Ex. 10.

Darmer spent 9.5 hours in 2022 and 0.5 hours in 2023 for the Appeal, and 7.5 hours for the fee motion. Darmer Decl., ¶15, Ex. 10. This includes one hour in 2022 to review the draft opposition to the City’s motion for judicial notice, 0.5 hours of follow-up regarding this opposition, and 0.25 hours to review the court’s order regarding the motion. Darmer Decl., ¶15, Ex. 10. Darmer’s other hours generally involve either emails with co-counsel or reviewing or commenting on some document. Darmer Decl., ¶15, Ex. 10.

Darmer asserts an hourly rate of $1,150 for 2021, $1,175 for 2022, and $1,225 for 2023. Darmer Decl., ¶12. His lodestar equals ($1,175 x 9.5) + ($1,225 x 8) = $11,162.50 + $9,800 = $20,962.50. Darmer Decl., ¶15.

Although Akobian has not billed any hours for the Appeal (Darmer Decl., Ex. 10), he expended six hours in 2023 on the fee motion. Darmer Decl., ¶15. Because his rate is $600 per hour, his lodestar totals $3,600. Darmer Decl., ¶¶ 12, 15.

Michael Rawson, Esq. (“Rawson”) has practiced affordable housing, land use, and fair housing law for 42 years. Rawson Decl., ¶2, Ex. 11. Craig Castellanet, Esq. (“Castellanet”) has concentrated on affordable housing litigation and advocacy for 25 years. Rawson Decl., ¶16. These are the only two attorneys for whom the Public Interest Law Project (“PILP”) requests attorney’s fees. Rawson Decl., ¶25.

Castellanet expended 86.1 hours. Rawson Decl., ¶25, Ex. 12. This includes 2.2 hours before August 18, 2022, the day the City filed its first appellate briefs. Rawson Decl., ¶25, Ex. 12. Of those 2.2 hours, Castellanet spent 0.3 hours drafting notes, 0.1 hours reviewing a civil information sheet, and 0.6 drafting memos. Rawson Decl., ¶25, Ex. 12.

Castellanet spent 12 hours after August 18, 2022 for drafting memos. Rawson Decl., ¶25, Ex. 12. On October 4, 2022, Castellanet billed 0.9 hours for checking final revisions to Kennedy’s appellate brief and sending memos about the changes. Rawson Decl., ¶25, Ex. 12.

At Castallanet’s claimed hourly rate of $850, his total lodestar is $850 x 86.1 = $73,185. Rawson Decl., ¶¶ 24-25.

Rawson expended 27.90 hours. Rawson Decl., ¶25, Ex. 12. Every entry related to either review, research, or meeting with co-counsel. Rawson Decl., ¶25, Ex. 12. At Rawson’s claimed rate of $960, this his total lodestar is $960 x 27.90 = $26,784. Rawson Decl., ¶25.

Community Legal Aid SoCal (“CLA SoCal”) is a non-profit legal services organization seeking to provide free, high-quality legal services and to advocate on behalf of low-income individuals. Reisman Decl., ¶4. CLA SoCal has not received, and does not expect to receive, compensation from Kennedy for this case. Reisman Decl., ¶5. Any fees awarded to its attorneys will inure to the benefit of the organization so that it may continue to provide legal services to low-income individuals in Orange County and Los Angeles County. Reisman Decl., ¶6.

Sara Reisman, Esq. (“Reisman”) is the Directing Attorney of Advocacy & Litigation. Reisman Decl., ¶8. She graduated from Vanderbilt University Law School and passed the New York bar exam in 2006. Reisman Decl., ¶¶ 21-22. She represented a variety of clients in complex civil litigation and government investigations through 2012. Reisman Decl., ¶23. She became a member of the State Bar of California in 2013. Reisman Decl., ¶24. She has since worked for Los Angeles Center for Law and Justice and CLA SoCal in a variety of cases. Reisman Decl., ¶¶ 25-26. Reisman was the primary researcher and drafter of the opposition for the Appeal, led the defensive strategy, and made the oral argument for Kennedy at the appellate court. Reisman Decl., ¶28.

Staff Attorney Laughton worked for CLA SoCal from September 2021 to December 2022. Reisman Decl., ¶16.

CLA SoCal seeks a $705 hourly rate for Reisman and a $500 hourly rate for both Laughton and Staff Attorney Katelyn Rowe, Esq. (“Rowe”). Reisman Decl., ¶8. These hourly rates are slightly higher than the rates the trial court awarded, but only to reflect inflation and the attorney’s increased experience. Reisman Decl., ¶12. The attorneys working on this matter kept detailed and contemporaneous records of the work performed in six-minute increments. Reisman Decl., ¶29.

Reisman spent 136.3 hours on the Appeal, plus 7.5 to work on the fee motion. Reisman Decl., ¶¶ 39, 48. Ex. 15. 3.1 of those hours on August 15, 2022 were to review trial court pleadings in advance of the City’s appellate brief. Reisman Decl., ¶39, Ex. 15. On August 19, she spent two hours in various meetings, including one to discuss “next steps” and division of labor with co-counsel. Reisman Decl., ¶39, Ex. 15. Various other entries refer to conferences with “TCL,” or Laughton, and PILP mixed with other tasks. Reisman Decl., ¶39, Ex. 15.

To prepare for the oral argument, Reisman reviewed the merits briefing, analyzed the key case authority cited therein, drafted opening remarks, participated in moot court with co-counsel, and observed appellate arguments. Reisman Decl., ¶33. 20.3 hours were related to moot court from March 14 to 21, 2023. Reisman Decl., ¶39, Ex. 15. The same entries also involve general preparation for oral argument, research on the panel members, and team strategy discussions. Reisman Decl., ¶39, Ex. 15. Other entries totaling at least 14.1 hours describe preparation for oral argument without moot court. Reisman Decl., ¶39, Ex. 15.

Reisman spent 17.7 hours for Kennedy’s opposition to the City’s motion for judicial notice. Reisman Decl., ¶39, Ex. 15. On March 22, 2023, Reisman spent 4.5 hours to travel to and attend oral argument in the appellate court and to update co-counsel afterwards. Reisman Decl., ¶39, Ex. 15. On September 6, 2023, Reisman spent 1.5 hours drafting a memorandum for this motion for attorney’s fees. Reisman Decl., ¶39, Ex. 15. She spent 1.6 hours on September 13, 2023 to discuss “next steps” with her team. Reisman Decl., ¶39, Ex. 15.

Reisman’s lodestar is $705 x (136.3 + 7.5) = $96,091.50 + $5,287.50 = $101,379. Reisman Decl., ¶48.

Laughton spent 109.6 hours for a total lodestar of $500 x 109.6 = $54,800. Reisman Decl., ¶48. Some of her entries for preparing the appellate opposition brief are on the same day as similar entries for Reisman. Reisman Decl., ¶48, Ex. 15. For example, on September 28, 2022, Reisman spent 6.3 hours on the brief while Laughton spent 5.4. Reisman Decl., ¶48, Ex. 15. On September 29, Reisman spent 6.6 hours while Laughton spent 5.2. Reisman Decl., ¶48, Ex. 15. On September 30, Reisman spent 5.2 hours while Laughton spent 4.8. Reisman Decl., ¶48, Ex. 15. On October 3, Reisman spent 7.6 hours while Laughton spent 6.3. Reisman Decl., ¶48, Ex. 15.

Laughton and Reisman researched and drafted different sections of the brief, provided feedback to each other, and integrated the sections written by co-counsel. Reisman Decl., ¶32. The number of arguments the City raised on appeal, some of which it had already forfeited, increased the number of hours Kennedy’s attorneys spent on the opposition. Reisman Decl., ¶32.

11.6 of Laughton’s hours pertain to work on the City’s motion for judicial notice. Reisman Decl., ¶48, Ex. 15. Her last three entries total 3.9 hours in November 2022 for analyzing the City’s reply briefs and drafting a summary. Reisman Decl., ¶48, Ex. 15.

Rowe’s 25.2 hours and $500 x 25.2 = $12,600 lodestar are solely for work on the motion for attorney’s fees. Reisman Decl., ¶48, Ex. 15. Aside from a 0.2-hour strategy meeting with co-counsel on July 27, 2023, Rowe’s hours begin on September 7, 2023, the day after Reisman spent 1.5 hours to draft a memorandum for the fee motion. Reisman Decl., ¶48, Ex. 15. This included 3.3 more hours of strategizing, meeting with others, and reviewing drafts with the team. Reisman Decl., ¶48, Ex. 15.

The City had no choice but to appeal, file its opening brief, and file its unopposed motion to augment. Said Decl., ¶¶ 2-3. The City provided all the exhibits to keep Kennedy from seeking more costs and fees against the City. Said Decl., ¶3. That would take away funds that could be used for public services during a time of high taxes in California. Said Decl., ¶3.

On September 7, 2023, Reisman personally picked up a $150,000 check to CLA SoCal for this case and a $3,681,000 check for a different case. Said Decl., ¶5, Ex. 1.

On August 26, 2022, the appellate court dismissed Kennedy’s cross-appeal at Kennedy’s request. Reisman Supp. Decl., ¶¶ 5-6, Ex. 1. The appellate court’s dismissal order stated that the City’s appeal was unaffected by the dismissal. Reisman Supp. Decl., ¶6, Ex. 1. Kennedy remained a respondent to the City’s appeal. Reisman Supp. Decl., ¶6, Ex. 1.

The City has objected to Darmer’s May 4, 2022 billing of 0.5 hours as impossible because it was before the City filed its opening brief. Darmer Supp. Decl., ¶4. This entry was for a different case, and Darmer has now removed that entry. Darmer Supp. Decl., ¶4. This reduces his hours in 2022 from 9.5 to 9. Darmer Supp. Decl., ¶4.

Akobian has spent another 8 hours on the reply brief for this motion for attorney’s fees. Darmer Supp. Decl., ¶4. He spent a total of 14 hours on the fee motion and his lodestar is $600 x 14 = $8,400. Darmer Supp. Decl., ¶4.

Reisman spent another 5 hours on the reply brief for the motion for attorney’s fees. Reisman Supp. Decl., ¶¶ 11-12, Ex. 2. This increases her lodestar to $705 x (136.3 + 7.5 + 5) = $705 x 148.8 = $104,904. Reisman Supp. Decl., ¶14.

Rowe spent another 25.3 hours on the reply brief for the motion for attorney’s fees. Reisman Supp. Decl., ¶¶ 11-12, Ex. 2. This increases her lodestar to $500 x (25.2 + 25.3) = $500 x 50.5 = $25,250. Reisman Supp. Decl., ¶14.

Intervenor Kennedy moves for attorney’s fees. The proposed lodestar is $262,892.25 and $51,650 for the fee motion, a total of $314,479.25.

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham, supra, 34 Cal.4th at 565. A successful party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, supra, 43 Cal.3d at 1292.

The City asserts that Kennedy is not the prevailing party because of its failed cross-appeal. Since Kennedy was unsuccessful in setting aside the award of attorney fees, it is not the prevailing party. Opp. at 5.

The City fails to distinguish between its appeal and the cross-appeal. The appellate court emphasized that Kennedy’s dismissal of the cross-appeal had no bearing on the City’s ongoing appeal. Reisman Supp. Decl., ¶6, Ex. 1. The City’s appeal challenged this court’s award of attorney’s fees, and the City lost. RJN Ex. 2. Kennedy is the prevailing party on the City’s appeal.

The City also asserts that it prevailed against CCRH and Housing because both were deemed amicus and ineligible for attorney’s fees under section 1021.5. Opp. at 5-6. This is irrelevant to Kennedy’s right to attorney’s fees. Kennedy is a prevailing party for the purposes of section 1021.5 attorney fees on appeal.

Section 1021.5 permits a trial court to award fees to a successful party in any action that: “has resulted in the enforcement of an important right affecting the public interest if (a) a significant benefit has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery. The issue is committed to the trial court’s discretion. Flannery, supra, 61 Cal.App.4th at 634.

The City asserts that Kennedy cannot show that an unpublished decision affirming an award of attorney’s fees meets the elements of section 1021.5. Opp. at 7-9.

The court need not discuss the elements of section 1021.5 because Kennedy’s motion does not rely on those elements. Instead, Kennedy relies on Serrano, supra, 32 Cal. 3d at 637, 639, which held that the hours reasonably expended on litigation under section 1021.5 include fees necessary to establish and defend the fee claim. Mot. at 11. This court already awarded Kennedy its attorney fees under section 1021.5, and the appellate court affirmed it. RJN Ex. 7. That entitlement extends to the fees incurred defending that holding on appeal. Reply at 3.

The City cites Estate of Cirone, (“Cirone”) (1987) 189 Cal.App.3d 1280, 1293, which holds a party who obtains attorney fee awards pursuant to section 1021.5 is not entitled to further attorney fees for efforts to collect a final fee award. The respondents sought to collect the attorney fee award via a claim for $18,000 to the State Board of Control. Id. at 1284. At issue was a $500 supplementary attorney's fee awarded by the trial court for the enforcement effort of filing this claim. Id. at 1284-85. Opp. at 6.

Cirone is distinguishable as a case concerning attorney fees incurred in attempts to collect the previously awarded fee. Cirone acknowledged that courts have consistently stated that parties entitled to attorney fees under section 1021.5 are also entitled to fees for services on appeal. 189 Cal.App.3d at 1293.

Kennedy’s entitlement to attorney fees under section 1021.5 extends to fees incurred when defending the award on appeal.

The court employs the lodestar analysis when looking to determine the reasonableness of an attorney’s fee award. The lodestar figure is calculated by multiplying the number of hours reasonably spent by the reasonable market billing rate. Serrano v. Priest, (1977) 20 Cal.3d 25, 48.

Generally, the reasonable hourly rate used for the lodestar calculation is the rate prevailing in the community for similar work. Center, supra, 188 Cal.App.4th at 616. In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases. 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., (“569 East”) (2016) 6 Cal.App.5th 426, 437.

Reisman seeks a $705 hourly rate based on her years of experience. Opp. at 11; Reisman Decl., ¶¶ 8, 21-24. This court awarded her a slightly lower rate of $680 in its original ruling on a motion for attorney’s fees. Reply at 10. Kennedy asserts her rate only increased to adjust for her extra years of experience and inflation. Reisman Decl., ¶12. This modest increase is acceptable.

Kennedy interprets the City’s failure to explicitly request an adjustment of any other attorney’s hourly rate as an admission that those rates are reasonable. Reply at 9.

The court agrees that the hourly rates for Laughton and Rowe of $500, for Chen of $625, and for Akobian of $600, are reasonable. Darmer Decl., ¶¶ 12, 15; Reisman Decl., ¶8.

The same is not true for Darmer, Castellanet, and Rawson. Darmer asserts an hourly rate of $1,150 for 2021, $1,175 for 2022, and $1,225 for 2023. Darmer Decl., ¶12. Castallanet’s claimed hourly rate is $850, and Rawson’s is $960. Rawson Decl., ¶¶ 24-25. The City notes the court’s 2021 award was based on hourly rates of $750 for Darmer, $600 for Castellanet, and $680 for Rawson. Opp. at 14-15.

Darmer’s approved hourly rate for this motion is $850 for each year. The approved rate for Castellanet is $650, and the rate for Rawson is $700.

The court will use a blended rate to calculate reasonable fees for each firm based on the approved hourly rate of the principal attorney therein.

Because Chen only billed 1.25 hours before any are disallowed (see post), Jones Day’s blended rate does not reflect her hourly rate. Based on Darmer and Akobian, the blended rate for Jones Day is ($850 + $600)/2 = $1,450/2 = $725.

The petitioner bears the burden of proof as to the reasonableness of any fee claim. CCP §1033.5(c)(5). This burden requires competent evidence as to the nature and value of the services rendered. Martino v. Denevi, (1986) 182 Cal.App.3d 553, 559. “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” Id.

“In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” Lunada Biomedical v. Nunez, (“Lunada”) (2014) 230 Cal.App.4th 459, 488; Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., (“Premier”) (2008) 163 Cal. App. 4th 550, 564.

None of the City’s arguments for disallowing hours (Opp. at 10-15) cite to legal authority. Kennedy suggests this alone means the City has failed to provide sufficient analysis as to what makes the hours in dispute unreasonable. Kennedy cites Avikian v. WTC Financial Corp. (“Avikian”), (2002) 98 Cal.App.4th 1108, 1119, as holding that the non-prevailing party cannot simply point to some examples of what they contend are excessive amounts of time on discrete tasks. Reply at 5.

Avikian’s statement that the appellants’ one page of examples do not justify a conclusion that the fees were excessive as a matter of law does not intrude on the trial court’s discretion. Avkian expressly held that it must defer to the judgment of the trial court as to reasonable hours in the absence of a clear abuse of discretion. Id. at 1119. An experienced trial judge is the best judge of the value of professional services rendered in his court, and an appellate court will not disturb such judgment unless convinced it was clearly wrong. Id. Id.

As Avikian acknowledged, the trial court is not required to rely on the opposition’s specific showing of unreasonableness in awarding fees. As with the underlying case on the merits, Kennedy’s attorneys have expended a grossly excessive number of hours on what was a relatively simple appeal of an award of attorney fees. The $314,479.25 in fees it seeks for the Appeal and the fee motion is more than double the $143,554.69 in attorney fees awarded to Kennedy for the merits of the case. As with the merits award, Kennedy’s excessive request is due to “overstaffing, duplication, and unwarranted inefficiencies”.

In awarding fees in 2021, the court found that Kennedy had overstaffed the case. A single client had retained ten attorneys for the limited purposes of a motion to intervene, a joint opposition on the merits, attendance at a hearing, and attendance at a hearing. 2021 Order at p. 14. The sheer number of hours they spent performing the same research was unreasonable. Id. Kennedy could not expect the City to pay for the internal communications, conferences, and inefficiencies this caused. Id.

The current circumstances are not so different. Kennedy seeks attorney’s fees for eight attorneys across three firms for two filings and oral argument in appellate court, generating memoranda to each other on a straightforward attorney fee appeal. RJN Exs. 4, 6. The court has no doubt that Kennedy’s attorney expended the hours they claim. But that does not make those hours reasonable or mean that the City should have to pay for them. This was an appeal from an attorney fee award and the elements of section 1021.5 were already established at the trial court level. The City made several additional arguments in the Appeal, and there also was an unopposed motion to augment and an opposed motion for judicial notice that was unimportant to the outcome. But there was no reason for seven attorneys to work on it or for them to spend $262,892.25 and 370.65 hours on the Appeal. Nor was there reason for Kennedy to spend $51,650 and 84.5 hours on the fee motion. The hours will be reduced to reasonable levels.

Kennedy’s moving papers claimed total hours as follows: 17.5 hours for Darmer, 1.25 hours for Chen, 6 hours for Akobian, 86.1 hours for Castellanet, 27.90 hours for Rawson, 143.8 hours for Reisman, 109.6 hours for Laughton, and 25.2 for Rowe. Darmer Decl., ¶15, Ex. 10; Rawson Decl., ¶¶ 24-25, Ex. 12; Reisman Decl., ¶¶ 39, 48, Ex. 15.

In Kennedy’s reply, Darmer acknowledged 0.5 of these hours were in error and reduced his total to 17 hours. Darmer Supp. Decl., ¶4. To prepare the reply brief, Akobian incurred 8 more hours, increasing his total to 14. Darmer Supp. Decl., ¶4. Reisman spent another 5 hours on the reply, a total of 148.8. Reisman Supp. Decl., ¶¶ 11-12, 14, Ex. 2. Rowe spent another 25.3 hours on the reply, a total of 50.5. Reisman Supp. Decl., ¶¶ 11-12, 14, Ex. 2.

Rowe and Akobian’s hours were incurred solely to prepare the motion for attorney fees. Reisman Decl., ¶¶ 39, 48, Ex. 15; Darmer Decl., ¶15, Ex. 10; Darmer Supp. Decl., ¶4; Reisman Supp. Decl., ¶¶ 11-12, 14, Ex. 2. 7.5 of Darmer’s pre-reply hours, 7.5 of Reisman’s pre-reply hours, and her 5 added hours on reply were also spent on the fee motion. Darmer Decl., ¶15, Ex. 10; Reisman Supp. Decl., ¶¶ 11-12, 14, Ex. 2.

Reisman spent 136.3 hours on the Appeal, 7.5 to work on the moving papers for the fee motion, and 5 hours on the reply. Reisman Decl., ¶¶ 39, 48. Ex. 15; Reisman Supp. Decl., ¶¶ 11-12, 14, Ex. 2.

Reisman’s billings include 20.3 hours related to a moot court from March 14 to 21, 2023. Reisman Decl., ¶39, Ex. 15. The City asserts that moot court is more appropriate for inexperienced attorneys, often current law students. Id.; Opp. at 12. The court agrees. The City argues that these entries include other forms of trial preparation. Reply at 8; Reisman Decl., ¶33. The hours of preparation in entries that do not include moot court are sufficient. Reisman Decl., ¶39, Ex. 15. The 20.3 hours are disallowed.

Reisman spent two hours on August 19, 2022 to discuss “next steps” with co-counsel. Opp. at 11; Reisman Decl., ¶39, Ex. 15. The City alleges Reisman spent another 33.1 hours talking to her office colleagues. Opp. at 11. Although the City does not cite entries, numerous entries do involve discussions with Laughton alongside other tasks. Reisman Decl., ¶39, Ex. 15.

The City requests the court to disallow hours for interoffice communication based on its award order. Opp. at 11. Such communication was a byproduct of overstaffing. The request to disallow 35.1 hours for attorney communication is granted.

On March 22, 2023, Reisman billed 4.5 hours to travel to and attend oral argument in appellate court and to update co-counsel afterwards. Reisman Decl., ¶39, Ex. 15. The City argues Reisman’s offices are only 13 minutes from the appellate courthouse, and the hearing was 55 minutes long. Even with a wait time of 30 minutes on either side of the hearing, this entry appears to seek two hours for discussion with co-counsel. Opp. at 12.

Kennedy cites Roe v. Halbig (2018) 29 Cal. App. 5th 286, 313, that attorney’s fees for travel hours may be awarded if the court determines they were reasonably incurred and the City cites no authority that travel time must be based on distance from counsel’s office to the courthouse. Reply at 8-9. Kennedy does not explain how travel hours can be reasonable if the location of counsel’s office suggests that they are not. The two hours are disallowed.

The City asks the court to disallow 25.3 hours from Reisman and Laughton’s billings, 12.9[5] of those from Laughton, based on time spent on the motion for judicial notice. Opp. at 11, 13. This would mean Reisman purportedly spent 12.4 hours on the motion for judicial notice, but the court has identified 17.7 hours related to this motion. Reisman Decl., ¶39, Ex. 15.

The parties dispute whether Kennedy prevailed on the motion when the appellate court did not rule on it. Opp. at 11; Reply at 6-7. The relevant question is whether opposing the motion was a reasonable step. The City does not dispute that it was.

The City then argues the hours billed for preparing the opposition are excessive given that the motion for judicial notice concerned the addition of only an appellate brief and appellate docket. Opp. at 10-11; RJN Ex. 3. Kennedy responds that the City sought to improperly have the appellate court judicially notice the City’s own assertions in past proceedings as true. Reply at 7; RJN Ex. 4, pp. 11-12.

This does not explain why it took Kennedy so many hours to oppose. Judicial notice is a simpler concept, and the arguments Kennedy made are not complicated. 5.4 hours for Reisman are disallowed as excessive.

The City argues 75.5 hours of Laughton and Reisman’s work on the appellate opposition brief was duplicative. Opp. at 12-13. For example, on four separate days, Reisman billed between 5 and 7.6 hours working on the brief while Laughton spent another 4.8 to 6.3. Reisman Decl., ¶48, Ex. 15.

Kennedy explains these hours were not incurred on the same issues. Opp. at 12. CLA SoCal attorneys would research and draft different sections of the brief, provide feedback and edits to each other, and collect and integrate the sections written by co-counsel. Reisman Decl., ¶32. This does not make their work duplicative.

Kennedy also argues that the City made the appeal complicated when it made a variety of arguments about whether Kennedy was a proper intervenor (RJN Ex. 2, pp. 25, 27, 31-33), whether it could obtain a form of relief when the State could not (RJN Ex. 2, pp. 33, 35), whether it met the requirements of section 1021.5 (RJN Ex. 2, pp. 36, 37-38, 40), and whether the asserted attorney’s fees were reasonable (RJN Ex. 2, pp. 47-49). The appellate court held the City had abandoned arguments as to intervention and challenges to specific items on billing statements. RJN Ex. 7, pp. 5-6, 13, n. 1. Because the City included them and made gross misstatements of fact and law, Kennedy had to take painstaking efforts to respond. Reply at 4.

Multiple attorneys working on different sections of the same brief does not mean the work was duplicative. However, the number of hours asserted by those attorneys was excessive. Reisman, Laughton, and three other attorneys (see post) all bill for an opposition brief to an appeal from an attorney fee award where the elements of section 1021.5 were established in Kennedy’s favor. 10 of Reisman’s hours for the Appeal are disallowed as excessive.

For the attorney fee motion, Reisman spent 1.5 hours drafting the memorandum on September 6, 2023. Reisman Decl., ¶39, Ex. 15. The City argues this is duplicative because Rowe also spent 23.6 hours drafting it. Opp. at 12. A modest amount of time spent by the supervising attorney at the beginning of the drafting process seems reasonable. The 1.5 hours are not disallowed.

Reisman’s reasonable hours spent on Appeal are reduced to 136.3 – 20.3 – 35.1 – 2 – 5.4 – 10 = 63.5. Reisman’s 12.5 hours spent on the fee motion are not reduced.

The City asserts none of Laughton’s hours are credible because she is not the attorney of record and is not listed on appellate court documents. Opp. at 13. However, Laughton is listed on both the opposition to the motion for judicial notice and the opposition on the merits of the appeal. Reply at 7; RJN Ex. 4, p. 1; RJN Ex. 6, p. 1. More important, the City cites no authority suggesting that an attorney need be an attorney of record for their fees to be awarded. Reply at 7.

The City then asserts none of Laughton’s time was verified in any declaration. Opp. at 13. Laughton no longer works at CLA SoCal, and Reisman does not have personal knowledge of Laughton’s work. Id.; Reisman Decl., ¶16. The City cites Ajaxo Inc. v. E*Trade Group Inc. (“Ajaxo”) (2005) 135 Cal.App.4th 21, 65, as concluding that a declaration from a current attorney insufficient to demonstrate the reasonableness of hours billed by a former attorney. Opp. at 10.

In Ajaxo, the appellant’s former counsel did not submit declarations indicating the work it had done to support an attorney fee. 135 Cal.App.4th at 65. Ajaxo had the general burden of introducing evidence to prove that the fees it sought for its prior counsel's work were reasonable. Id. Ajaxo only submitted a declaration with conclusions about the attorneys, their rates and hours, and resulting fees. Id. It failed to submit any evidence detailing the services each of these attorneys provided and the trial court did not abuse its discretion in declining to award fees for Ajaxo’s prior counsel. Id.

In contrast, CLA SoCal explained that it generated Laughton’s proposed hours (Reisman Decl., Ex. 15) based on contemporaneous records of the work attorneys performed in six-minute increments. Reisman Decl., ¶29. This is sufficient evidence.

The City reiterates its request for the court to disallow the 12.9 hours spent on the opposition to the motion for judicial notice. Opp. at 12. The court has identified only 11.6 of Laughton’s hours related to such activities. Reisman Decl., ¶¶ 39, 48, Ex. 15. As discussed above, the simplicity of the motion renders most of these hours for Reisman and Laughton excessive. 9.6 of Laughton’s hours are disallowed.

Most of Laughton’s other hours pertain to work on the opposition brief for the Appeal. Reisman Decl., ¶48, Ex. 15. The City asks how an experienced attorney would need 64.3 hours reviewing and revising this brief after Reisman worked on it. Opp. at 13. As discussed above, five attorneys working on the brief is inherently excessive and the number of hours they have billed also is excessive is given the Appeal’s simplicity. 55 of these hours are disallowed.

The City also disputes the reasonableness of Laughton’s final entries in November 2022 for analyzing reply briefs and drafting a summary. Reisman Decl., ¶48, Ex. 15. The 3.9 hours she spent in this effort could not help Kennedy because she left CLA SoCal before oral arguments began. Opp. at 13. This argument assumes another attorney could not have used her notes. These hours are not disallowed.

Rowe spent 25.2 hours on the motion for attorney fees and another 25.3 hours on the reply, a total of 50.5 hours. Reisman Decl., ¶¶ 39, 48, Ex. 15; Reisman Supp. Decl., ¶¶ 11-12, 14, Ex. 2.

The City asks the court to cut Rowe’s time by 15 hours, reducing it to 10.2 hours. Opp. at 13-14. The City asserts that Rowe spent 3.9 hours in meetings to strategize about the motion. Opp. at 13. The court only identified a 0.2-hour meeting on July 27, 2023, and 3.3 more hours of meetings after September 7, 2023. Reisman Decl., ¶48, Ex. 15. These 3.5 hours are disallowed. This reduces the number of hours to 25.2 – 3.5 = 21.7.

The City then asks why Rowe spent 23.6 hours drafting the fee motion after Reisman spent 1.5 hours drafting it. Opp. at 13. Although the precise number is not correct, the question is valid. Kennedy did not need to spend as much time on an entitlement argument because it was based on this court’s previous finding of entitlement. Reisman’s 1.5 hours likely were not enough to prepare the complete draft, but Rowe’s 21.7 hours were excessive. The court disallows 10.5 hours, which reduces the pre-reply hours to 10.2.

The City never had an opportunity to dispute Rowe’s 25.3 hours spent on reply. Reisman Supp. Decl., ¶¶ 11-12, 14, Ex. 2. They are also excessive and should not be greater than or even equal to the hours spent on the moving papers. These reply hours are reduced to 5.2 hours.

The hours CLA SoCal spent on the Appeal total 63.5 + 45 = 108.5. Based on the blended rate of $568.33, CLA SoCal’s lodestar equals $568.33 x 108.5 = $61,663.81.

CLA SoCal spent 12.5 + 15.4 = 27.9 hours on the motion for attorney fees. The recoverable fees for this motion total 27.9 x $568.33 = $15,856.41.

Akobian’s 14 hours on the motion for attorney fees are not in dispute. Darmer Supp. Decl., ¶4.

After conceding 0.5 of his originally asserted hours were improper, Darmer spent 9.5 hours on the Appeal and 7.5 on the fee motion. Darmer Supp. Decl., ¶4.

Darmer spent one hour drafting the opposition to the motion for judicial notice, plus 0.75 hours on follow-up activities. Darmer Decl., ¶15, Ex. 10. The City asks the court to disallow the one-hour entry. Opp. at 14. The hours billed on the opposition to the motion for judicial notice are excessive due to its simplicity. With four hours between Reisman and Laughton allowed as reasonable, Darmer’s hour is disallowed.

Darmer’s other hours on the Appeal involve either emails with co-counsel or reviewing or commenting on a document. Opp. at 14; Darmer Decl., ¶15, Ex. 10. Both activities emphasize the duplicative nature of the hours Darmer, Reisman, Laughton, Rawson, and Castellanet accrued by all working on the opposition brief. Opp. at 14. “Reviewing and commenting” suggests that Darmer’s hours are not particularly relevant to the merits of the opposition, and these hours are disallowed. Only 0.75 of the hours Darmer spent on Appeal are reasonable.

The City did not challenge the 7.5 hours Darmer spent on the fee motion, except to the extent that it asks for elimination of all his hours. Opp. at 14. Between Rowe’s 20.4 approved hours and Akobian’s undisputed hours, Darmer’s work on the fee motion was unnecessary. His 7.5 hours are disallowed.

Chen spent 0.25 hours in March 2022 reviewing a notice of default entry and 1 hour in August 2022 in a conference call with co-counsel regarding motions and strategy. Darmer Decl., ¶15, Ex. 10. The City asks why Chen’s conference call was necessary when she did no other work on the Appeal. Opp. at 14. The court agrees. The one hour Chen spent in a conference call is disallowed. Chen’s hours are reduced to 0.25.

The hours Jones Day spent on the Appeal total 0.75 + 0.25 = 1. Its lodestar totals $725 x 1 = $725. Akobian’s work on the motion for attorney’s fees incurred fees of $725 x 14 = $10,150.

The City asserts Castellanet billed 3.5 hours before a briefing schedule was assigned and any briefs were filed. Opp. at 14. It argues that he was “preparing, drafting, and doing nothing” during that time. Opp. at 14-15.

Castellanet only billed 2.2 hours, not 3.5 hours, before August 18, 2022, which was the day the City filed its first appellate briefs. Rawson Decl., ¶25, Ex. 12; RJN Exs. 1-2. Kennedy does not explain why these hours represent billable work before there was any briefing on the merits. These 2.2 hours are disallowed.

The City asserts that Castellanet spent 6.6 hours writing memos between lawyers. Opp. at 15. The court has identified 12 hours after August 18, 2022 for drafting memos. Rawson Decl., ¶25, Ex. 12. The requested 6.6 hours of interoffice communication are disallowed.

The City also asks why Castellanet spent 0.9 hours sending memos about Kennedy’s opposition brief on October 4, 2022, the day it filed the brief. Opp. at 15; Rawson Decl., ¶25, Ex. 12. The intercommunication between attorneys reflects the duplicative nature of retaining excessive counsel. The 0.9 hours are disallowed.

The City notes that Castellanet’s remaining hours were spent drafting and reviewing the same opposition brief that Laughton and Reisman worked on. Opp. at 15; Rawson Decl., ¶25, Ex. 12. As discussed above, the nature of the Appeal and the number of attorneys and hours supports the inference that some of these hours are duplicative. 20 of these hours are disallowed.

Castellanet’s reasonable hours total 86.1 – 2.2 – 6.6 – 0.9 – 20 = 56.4 hours.

Rawson spent 27.90 hours. Rawson Decl., ¶25, Ex. 12. Every entry related to either review, research, or meeting with co-counsel. Opp. at 15; Rawson Decl., ¶25, Ex. 12. The City requests that all Rawson’s hours be disallowed. Opp. at 15.

As discussed above, interoffice communications are disallowed as part of the duplicative nature of hiring multiple firms. Further, because this court has allowed hours from three other attorneys for preparing the opposition brief for the Appeal, any more would be duplicative. The request to disallow all of Rawson’s hours is granted.

The lodestar from all three firms totals $61,663.81 + $725 + $38,070 = $100,458.81. Attorney fees for preparing this motion total $15,856.41 + $10,150 = $26,006.41.

Kennedy’s motion for attorney fees is granted in the amount of $100,458.81 + $26,006.41 = $126,465.22.

[1] All further statutory references are to the Government Code unless otherwise stated.

[2] Although the laws at issue govern zoning by other local government agencies, the court shall refer to cities for convenience.

[3] RHNA is the statutory process to identify the total number of housing units (by affordability) allocated to each jurisdiction for planning purposes. As part of this process, the California Department of Housing and Community Development (“HCD”), through its regional sub-agencies, identifies the total housing need allocated to each city for an eight-year period.

[4] The court has ruled on the parties’ written evidentiary objections, sometimes overruling an objection under Fibreboard Paper Products Corp. v. East Bay Union of Machinists, Local 1304, Seelworkers of America, AFL-CIO, (1964) 227 Cal.App.2d 675, 712 (court may overruled objection if any portion of objected to material is admissible). The clerk is directed to electronically scan and file the court’s rulings.

Kennedy requests judicial notice of (1) the Registrar of Actions for the California Court of Appeal case City of Huntington Beach v. The State of California et al., (“Appeal”) Case No. G061184 (RJN Ex. 1); (2) the City’s opening brief in the Appeal, filed on August 18, 2022 (RJN Ex. 2); (3) City’s Motion to Take Judicial Notice in the Appeal, filed on August 18, 2022 (RJN Ex. 3); (4) Kennedy’s opposition to that motion, filed on September 2, 2022 (RJN Ex. 4); (5) a letter from the State of California, Governor Gavin Newsom and Attorney General Rob Bonta filed in the Appeal on September 12, 2022 (RJN Ex. 5); (6) Kennedy’s opposition for the Appeal, filed on October 4, 2022 (RJN Ex. 6); and (7) the unpublished opinion for the Appeal, issued June 14, 2023 (RJN Ex. 7).

The City objects that the court cannot judicially notice allegations in affidavits, declarations, briefings because such matters are reasonably subject to dispute. RJN Opp. at 3-5, 6-7. Kennedy does not seek judicial notice of the facts in the appellate briefings, only that the issues and alleged facts were presented on appeal. RJN Reply at 3. The court may take judicial notice of the existence of a court document, but not its truth. Sosinsky v. Grant, (1992) 6 Cal.App.4th 1548, 1551.

The City also asserts that the Registrar of Actions (RJN Ex. 1) cannot be judicially noticed because it is not an actual court filing. RJN Obj. at 4-5. Not so. The court can judicially notice a Registrar of Actions under Evid. Code section 452(d). RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co. (2020) 56 Cal.App.5th 413, n. 2. RJN Reply at 1-2.

The City argues the court should not judicially notice the September 12, 2022 letter (RJN Ex. 5) because it contains hearsay and lacks foundation. RJN Opp. at 6. It admits this letter was filed in the Appeal. While the court can judicially notice the existence of this court document, it is offered for its truth. Kennedy has offered to withdraw this request for judicial notice and it is withdrawn. See RJN Reply at 4.

The City argues that it is unnecessary to judicially notice the appellate court’s opinion (RJN Ex. 7). RJN Opp. at 5-6. Whatever the reason, the court can judicially notice an unpublished appellate opinion. Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 217, n. 14. RJN Reply at 2.

The requests to judicially notice Exhibit Nos. 1-4 and 6-7 are granted. Evid. Code §452(d).

[5] The City lists Laughton’s hours as 12.99. Opp. at 13. Because all entries are in 0.1-hour increments, the court assumes this is a typo.