Yes in My Backyard, Sonja Trauss, and Janet Jha v. City of Los Angeles and City Council, 21STCP03883

 

Tentative decision on motion for attorney’s fees: granted in part

 

            Petitioners Yes in My Backyard (“YIMBY”), Sonja Trauss (“Trauss”), and Janet Jha (“Jha”) moved for an award of $486,053.50 in attorney’s fees. 

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

 

            A. Statement of the Case

            1. Petition

            Petitioners commenced this proceeding against Respondents City of Los Angeles (“City”) and the City Council (collectively, “City”) on November 24, 2021.  The Petition alleges claims for traditional and/or administrative mandamus under the Permit Streamlining Act (“PSA”), traditional and/or administrative mandamus under the Housing Accountability Act (“HAA”), and declaratory relief for the application process The Petition alleges in pertinent part as follows.

            On May 19, 2020, Jha submitted a preliminary application for the Project, which is a multi-family development with affordable units and one commercial unit at 5353 Del Moreno Drive (“Property”).  The Property is in a “Limited Commercial” area within the Canoga Park-Winnetka-Woodland Hills-West Hills Community Plan (“Community Plan”) area.  The preliminary application included all the information listed in Government Code (“Govt. Code”) section 65941.1 as necessary and Jha paid the required $1,060.26 fee on May 29, 2020.

            On June 8, 2020, the City rejected the preliminary application and informed Jha that it was non-compliant with the Property’s RA-1 zoning, which prohibits multi-family housing and more than one dwelling per lot.  The City also stated that the Property is not eligible for a density bonus because the RA-1 zoning permits only one unit on the Project site, and it would require a rezoning of the Project site to permit a density bonus.  The City directed Jha to verify the appropriate entitlement path and secure a signed Affordable Housing Referral Form (“AHRF”), something not required by Govt. Code section 65941.1 and SB 330.

            On August 17, 2020, Jha submitted a completed AHRF.  The City’s Housing Services Unit refused to process an invoice or return a signed AHRF – or a Geographic Project Planning Referral Form (“GRF”) – because it concluded that the Project is non-compliant with the Property’s zoning. 

            On August 18, 2020, Jha submitted a complete development application to the City’s Department of City Planning (“City Planning”).  On September 18, 2020 – a day after the PSA’s 30-day deadline for finding an application incomplete - Respondents issued Jha a completed “CP-7782.1 DCP Application Checklist and Deemed Complete” form (“Checklist”) reflecting City Planning’s belief that the application was incomplete.

            Jha submitted the documents listed on the Checklist on January 21, 2021.  On February 26, 2021, the City notified Jha that the application was still incomplete because (1) the Project is inconsistent with the Property’s zoning, and (2) the application lacked staff signatures on the AHRF and GRF forms.  The same day, Jha requested an appeal of the completeness determination.  The City claimed that the application was unacceptable and technically not an application because it had not signed the referral forms, and therefore not subject to appeal.

            In Jha’s attempts to proceed with the Project over the following months, the City refused to take any action based on the absence of signed referral forms despite the fact that it, not Jha, was supposed to sign them.  The City also demanded that Jha reduce the density of the Project to comply with the Property’s zoning or seek rezoning, despite the fact that the Project complies with the Community Plan’s designation of the area as Limited Commercial.

            Only after Jha retained an attorney did the City provide an appeal before the City Council’s Planning and Land Use Management Committee (“PLUM”) in June 2021.  YIMBY and its director Trauss provided written comments, attended the August 31, 2021 PLUM hearing, and testified.  City Planning recommended denial based on the absence of signed referral forms and the fact that the application was incomplete.  PLUM agreed that the PSA’s 30-day compliance determination requirement had not been triggered and denied the appeal.

            On September 1, 2021, the City Council heard and denied Jha’s appeal, finding the application only would be complete after Jha reduces the density of the Project or sought rezoning. 

            Petitioners contend that the City Council’s decision is part of the City’s larger pattern of circumventing the PSA’s deadlines by finding that permit applications have not been accepted.  The City also previously has concluded that RA-1 zoning is consistent with the Property’s Limited Commercial designation, despite the fact that RA-1 prohibits multi-family housing and the Limited Commercial designation permitting it.

            Petitioners seek a writ of mandate directing the City to (1) review and process development applications pursuant to the PSA, SB 330, and the HAA, and not refuse to accept preliminary applications based on their incomplete status, (2) deem Jha’s preliminary application complete under the PSA and SB 330, and (3) approve Jha’s application pursuant to the HAA.  Petitioners also seek attorney’s fees and costs.

 

            2. Course of Proceedings

            No proof of service for the Petition is on file.  On December 30, 2021, the City filed an Answer.

            After the trial on July 26, 2022, the court took the hearing under submission.  On July 29, 2022, the court issued a ruling granting the Petition and stating that a writ will issue deeming the SB 330 application to have been submitted and the Project application deemed complete, and directing the City to comply with the HAA in 60 days.  The court issued a certificate of mailing for the ruling on the same day.

            On September 29, 2022, the court denied Respondents’ motions for reconsideration and a new trial. 

            On October 3, 2022, the court set an appeal bond for Respondents at $10.3 million and granted an ex parte application to stay any judgment and writ of mandate in this action through October 31, 2022.

            On October 17, 2022, the court entered judgment.

 

            B. Applicable Law

            1. Government Code Section 65589.5

            When a party prevails in an action to enforce Government (“Govt.”) Code section 65589.5, the court shall issue an order or judgment compelling compliance with the section within 60 days.  Govt. Code §65589.5(k)(1)(A)(ii).  The court shall also award reasonable attorney's fees and costs of suit to the plaintiff or petitioner, except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes of Govt. Code section 65589.5.  Govt. Code §65589.5(k)(1)(A)(ii). 

            A “housing organization” is a trade or industry group whose local members are primarily engaged in the construction or management of housing units or a non-profit organization whose mission includes providing or advocating for increased access to housing for low-income households and have filed written or oral comments with the local agency prior to action on the housing development project.  Govt. Code §65589.5(k)(2).  A housing organization may only file an action pursuant to Govt. Code section 65589.5 to challenge the disapproval of a housing development by a local agency.  Govt. Code §65589.5(k)(2).  A housing organization shall be entitled to reasonable attorney's fees and costs if it is the prevailing party in an action to enforce this section.  Govt. Code §65589.5(k)(2).

 

2. CCP Section 1021.5

            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 (“Harbor”) (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney (“Daniels”), (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, (“Planned Parenthood”) (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 (Maria P.), (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (“Tipton-Whittingham”), (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 (“Woodland Hills”), (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. (“Braude”), (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 (“Protect Our Water”), (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.¿ “The necessity of private enforcement looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary.”  In re Conservatorship of Whitley, (“Whitley”) (2010) 50 Cal.4th 1206, 1214-15 (internal quotations omitted).  In determining the financial burden on the petitioner, courts have focused not only on the costs of the litigation but also any offsetting financial benefits that the litigation yields or reasonably could have been expected to yield.”  Whitley, supra, 50 Cal.4th at 1215.  This prong evaluates “incentives rather than outcomes.”  See id. at 1220.  The party seeking attorneys’ 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. 

This prong encompasses two issues: (1) whether private enforcement was necessary and (2) whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys.  Lyons v. Chinese Hospital Assn., (“Lyons”) (2006) 136 Cal.App.4th 1331, 1348.  The necessity of private enforcement becomes clear when the action proceeds against only the governmental agencies that bear responsibility for the alleged violations.  Id.; see Woodland Hills, supra, 23 Cal.3d at 941.  The financial burden of private enforcement is met when the cost of the claimant’s legal victory transcends his personal financial interest.  Woodland Hills, supra, 23 Cal.3d at 941.  Non-financial motivations are irrelevant.  Whitley, supra, 50 Cal.4^th at 1216-17.

                       

            C. Statement of Facts

            1. Petitioners’ Evidence

            YIMBY is a section 501(c)(3) non-profit corporation and the litigation affiliate of YIMBY Action, a section 501(c)(4) non-profit corporation with members across socioeconomic lines.  Trauss Decl., ¶3.  YIMBY’s mission is to increase the accessibility and affordability of housing in the state.  Trauss Decl., ¶4. 

Jha’s representative informed YIMBY’s founder, Sonja Trauss, of the City’s actions for her Project.  Trauss Decl., ¶5.  Trauss and YIMBY have no direct interest in this case, and most of YIMBY’s members do not own property in the City.  Trauss Decl., ¶¶ 8-9.

 

a. Course of Proceedings

            Matthew Hinks, Esq. (“Hinks”) is a partner at Jeffer, Mangels, Butler & Mitchell LLP (“JMBM”), which is Jha’s counsel.  Hinks Decl., ¶¶ 1, 6.  Hinks has 20 years of experience in difficult land use disputes in state and federal courts, including HAA disputes.  Hinks Decl., ¶6.  Another JMBM partner, Daniel Freedman, Esq. (“Freedman”), has ten years of experience in real estate development, zoning, land use entitlements, and compliance with complex local, state and federal regulations, including the HAA.  Hinks Decl., ¶7.  Julia Consoli-Tiensvold, Esq. (“Consoli”) is a fifth-year associate at JMBM with significant experience representing clients in land use disputes.  Hinks Decl., ¶8.

            Before Petitioners filed this action, Jha and YIMBY asked for help from the law firm of Zacks, Freedman & Patterson PC (“ZFP”) to advance Jha’s housing development application without litigation.  O’Neill Decl., ¶5.  Associate Brain O’Neill, Esq. (“O’Neill”) conducted research into the Permit Streamlining Act (“PSA”) and the HAA’s prohibitions on rezoning, and he drafted a memo with several options.  O’Neill Decl., ¶6.  This included the recommendation that Jha demand an administrative appeal of the City’s refusal to accept the development application.  O’Neill Decl., ¶6.  Jha also retained JMBM to assist with the administrative appeal.  Hinks Decl., ¶¶ 1-2.

            Before the administrative appeal hearing, O’Neill sent a letter to the City that explained it had a mandatory duty to accept Jha’s application per the PSA, that the HAA prohibited the City from requiring a rezoning, and that the HAA required the City to facilitate the density allowed under the City’s general plan.  O’Neill Decl., ¶7; Trauss Decl., ¶6.  O’Neill and Jha attended the hearing to urge the City to allow the application to move forward.  O’Neill Decl., ¶7.  When the appeal failed, Petitioners retained ZFP to represent them in this action.  O’Neill Decl., ¶8.  The 20-25 hours spent on the administrative appeal are not part of ZFP’s invoices.  O’Neill Decl., ¶8, Ex. A.

            JMBM let ZFP take the lead in case preparation to prevent duplication of work.  Hinks Decl., ¶4.  Drafting the Petition in November 2021 involved extensive research into the legislative history of the HAA and related statutory text.  O’Neill Decl., ¶9.  In December 2021, Petitioners’ counsel learned about a recent trial court decision, Snowball West Investments, L.P. v. City of Los Angeles (“Snowball”) (2021), Case No. 20STCP00711, that favored the City’s interpretation of its own code.  O’Neill Decl., ¶10.  Because it involved issues similar to this case, counsel spent significant time to review the briefing and evidence in Snowball.  O’Neill Decl., ¶10. 

            After the City certified the administrative record in February 2022, counsel at ZFP spent hours reviewing and annotating the administrative record to ensure it was complete and that all documents were appropriate for inclusion.   O’Neill Decl., ¶11.  After the City filed its opposition brief, ZFP conducted additional research into the case law and legislative history cited in the opposition brief.  O’Neill Decl., ¶12.  Counsel also had to review an 800-page request for judicial notice.  O’Neill Decl., ¶12. 

            To prepare for the hearing, O’Neill drafted an oral argument outline, reviewed and annotated the administrative record and case filings, prepared and organized materials for use at the hearing, and performed additional legal research as necessary.  O’Neill Decl., ¶13. 

            On July 29, 2022, this court issued its ruling.  O’Neill Decl., ¶14.  The City filed a motion for reconsideration with a 100-page Request for Judicial Notice.  O’Neill Decl., ¶14.  O’Neill drafted an opposition and a proposed judgment.  O’Neill Decl., ¶15.  The parties met and conferred on the judgment but could not reconcile their positions.  O’Neill Decl., ¶15.  On September 29, the court held a hearing on the motion for reconsideration, denied it, and ordered the parties to continue to meet and confer regarding the judgment.  O’Neill Decl., ¶16. 

            On September 30, 2022, Petitioners’ counsel drafted oppositions to the City’s ex parte applications to set an appeal bond amount and to stay the judgment.  O’Neill Decl., ¶17.  Because the ex parte hearing occurred on October 3, 2022, ZFP used more firm attorneys to help with an opposition.  O’Neill Decl., ¶17.

            Over the next several weeks, the parties met and conferred regarding the judgment.  O’Neill Decl., ¶18.  The court issued its judgment and writ on October 17, 2022.  O’Neill Decl., ¶18.

 

            b. Fees 

            ZFP’s attorneys entered the time expended each day in a program called TABS, which collated the information and generated a bill.  O’Neill Decl., ¶19.  O’Neill has confirmed that all the recorded time is pertinent to this case.  O’Neill Decl., ¶19, Ex. A.  O’Neill’s hourly rate is $325, whereas supervising attorney Ryan Patterson, Esq. (“Patterson”) billed at $550 per hour.  O’Neill Decl., ¶¶ 3-4.  The invoices show that Robert Little, Esq. (“Little”) billed at $250 per hour and Emily Brough, Esq. (“Brough”) billed at $475 per hour.  O’Neill Decl., ¶19, Ex. A.  Paralegal Michael Giove (“Giove”) billed at $200 per hour.  O’Neill Decl., ¶19, Ex. A.

            Hinks considers Patterson’s and O’Neill’s expertise in HAA litigation to be unrivaled.  Hinks Decl., ¶24.  Much of the HAA is new and without case law to interpret it.  Hinks Decl., ¶25.  To JMBM, the incurred hours are reasonable and the rates below market value.  Hinks Decl., ¶¶ 26-27.

            Based on the invoices, as of November 31, 2022, ZFP incurred $107,562.50 in attorney’s fees.  O’Neill Decl., ¶20, Ex. A.  Not including the reply brief, ZFP has incurred $17,027.50 in fees for this fee motion.  O’Neill Decl., ¶20, Ex. A.  Including the multiplier of 3, the total for fees incurred by ZFP is $339,715.  O’Neill Decl., ¶20.

            JMBM’s billing partners review pre-bills generated each month from data submitted by attorneys, paralegals and other staff.  Hinks Decl., ¶22.  JMBM incurred $47,242 in attorney’s fees before this motion.  Hinks Decl., ¶9.  Of this, 9.6 hours, totaling $5,077.50, was incurred for the administrative appeal.  Hinks Decl., ¶9.  This includes (1) 2.5 hours by Consoli to review correspondence and project records, analyze potential HAA claims, and confer with co-counsel; (2) 1.9 hours by Freedman to confer with Petitioner Jha and co-counsel, and to review records; (3) one hour by Hinks to review records and advise on strategy; and (4) 3.6 more hours by Freedman in August 2021 to draft letters to the City Council and appear at the hearing.  Hinks Decl., ¶11.

            For the lawsuit, JMBM billed a total of 63.2 hours.  Hinks Decl., ¶13.  This included (1) 4.5 hours by Freedman and 0.5 hours by Hinks to prepare and draft the Petition (Hinks Decl., ¶14); (2) 1.2 hours by Freedman in December 2021 and January 2022 to schedule the trial setting conference and resolve issues about administrative record preparation (Hinks Decl., ¶15); (3) 4.1 hours by Freedman and 0.3 hours by Hinks to confer with other counsel about administrative record preparation between February and March 2022 (Hinks Decl., ¶15); (4) 2.3 hours by Freedman and 0.8 hours by Hinks in May 2022 to help review the administrative record and prepare the opening brief (Hinks Decl., ¶16); (5) 10.2 hours by Freedman and 10.2 hours by Hinks in June and July 2022 to review the opposition brief, help write the reply, and appear at trial (Hinks Decl., ¶17); and (6) 12.0 hours by Freedman, 9.1 hours by Hinks, and 4.7 hours by Consoli to meet and confer over the proposed judgment, respond to the City’s motion for reconsideration, and oppose its ex parte applications (Hinks Decl., ¶18).  In total for the litigation, Freedman billed 34.4 hours, Hinks billed 21.9 hours, and Consoli billed 4.7 hours.  Hinks Decl., ¶19.

            Hinks’s billing rate was $835 per hour in 2021 and $875 per hour in 2022.  Hinks Decl., ¶20.  Freedman’s billing rate was $585 per hour in 2021, $625 per hour in the first half of 2022, and $635 in the second half of 2022.  Hinks Decl., ¶20.  Consoli’s billing rate was $410 per hour in 2021 and $525 per hour in 2022.  Hinks Decl., ¶20. 

            JMBM has incurred $47,242 in attorney’s fees on this matter.  Hinks Decl., ¶9.  JMBM anticipates that it will incur an additional $10,000 in attorney’s fees for the reply brief and hearing on this motion, for a total fee of $57,242.  Hinks Decl., ¶9.

            ZFP’ invoices show that YIMBY paid the firm’s invoices.  O’Neill Decl., ¶19, Ex. A.  Because YIMBY’s yearly litigation budget is $370,000, it was unable to bring any other action to enforce state housing laws during this case.  Trauss Decl., ¶10.

 

            2. The City’s Evidence

            YIMBY’s website lists Trauss as the Executive Director and leader of the legal arm.  Wong Decl., ¶¶ 4-5, Ex. A.  YIMBY’s purpose is to take legal action to ensure that housing becomes affordable and equitable.  Wong Decl., ¶6, Ex. A. 

            On December 9, 2021, YIMBY filed an opening brief in an action in Los Angeles Superior Court, Case No. 20STCV43253.  Wong Decl., ¶9, Ex. A.  YIMBY filed a reply brief on February 7, 2022 and received a judgment on May 26, 2022.  Wong Decl., ¶9, Ex. A. 

            On January 20, 2022, YIMBY filed suit against the City and County of San Francisco. Wong Decl., ¶12, Exs. A-B.  YIMBY has released updates throughout 2022.  Wong Decl., ¶12, Ex. B. 

            On June 21, 2022, YIMBY issued a press release announcing a lawsuit against the City of Burbank.  Wong Decl., ¶7, Exs. A-B.  On November 21, 2022, it amended a petition it had filed in San Francisco.  Wong Decl., ¶8, Ex. A.  YIMBY has also filed several amicus briefs throughout 2022.  Wong Decl., ¶10, Ex. A.

            On September 30, 2022, in opposition to the City’s ex parte application to set an appeal bond for this case, Jha estimated that the lost rent revenue for any delay in the Project was $138,858 per month.  Jha Appeal Bond Decl., ¶12.  Construction costs have also increased while the project was suspended.  Jha Appeal Bond Decl., ¶6. 

            The 1300-page record in this case was not voluminous.  Wong Decl., ¶25.  The parties resolved issues about the record without motion or court order.  Wong Decl., ¶25.  The fees for preparing the record are minimal.  Wong Decl., ¶25.  There also was no discovery and no fees generated in connection thereto.  Wong Decl., ¶24.

            The City has reviewed ZFP’s hours claimed and do not find that it miscalculated its fees.  Wong Decl., ¶15.  However, JMBM has overstated Freedman’s hours by 0.1 and his fees by $2,866.50.  Wong Decl., ¶17.  JMBM also has overstated Hinks’s hours by 1.0 and his fees by $835 because the excess hour was for administrative proceeding work in 2021.  Wong Decl., ¶17.  Consoli’s hours are correctly reported as 4.7, but her fee was miscalculated by $1,024.50.  JMBM’s total error was $4,726.  Wong Decl., ¶18.

            There were two rounds of meet and confer for the proposed judgment and writ.  Wong Decl., ¶19.  Half of ZFP’ time to prepare for the second meet and confer was unjustified.  Wong Decl., ¶20.  The City has added all entries for the met and confer process and has determined that half of ZFP’s fees for the second meet and confer session equals $3,038.50.  Wong Decl., ¶21.  The City also reviewed Hinks’s declaration to subtract have of JMBM’s fees for the second meet and confer.  Wong Decl., ¶22.  Half of the fees JMBM claims for the second meet and confer consist of $605.25 by Freedman and $1,443.75 by Hinks, a total of $2047.  Wong Decl., ¶23.

            The Petition sought seven categories of relief: (1) preliminary application practices for persons similarly situated under Govt. Code section 65941.1; (2) the Project’s Preliminary Application; (3) PSA practices for persons similarly situated under Govt. Code section 65943; (4) the Project Application and appeal under the PSA; (5) HAA practices under Govt. Code section 65589.5; (6) Project specific actions under the HAA; and (7) Project specific HAA penalties related to a bad faith finding, such as fines or an order to approve the Project, per Govt. Code section 65589.5(k).  Wong Decl., ¶27.  Petitioners’ request for $154,804.50 in fees should be reduced by $9,811.50 for errors and excessive litigation tasks to a total of $144,993.  Wong Decl., ¶28.

            Each category of relief should represent one-seventh of this fee, or $20,719.50.  Wong Decl., ¶30.  If the court agrees that Petitioners fail to prove entitlement to attorney’s fees for the first four categories of relief under CCP section 1021.5, the lodestar is reduced to $62,115.  Wong Decl., ¶31.  If the court agrees on apportionment based on failure to secure the first, third, fifth, and seventh categories of relief, this further reduces the attorney’s fees to $20,676.  Wong Decl., ¶¶ 32-33. 

            If the court agrees to award only half of the claimed $17,027.50 in fees for this motion, this brings the City’s recommended award to $29,189,75.  Wong Decl., ¶33.

           

            3. Reply Evidence

            JMBM did not properly add the hours each team member spent on this action.  Hinks Reply Decl., ¶2.  The accurate number of hours is 39.8 for Freedman, 21.9 hours for Hinks, and 7.2 hours for Consoli.  Hinks Reply Decl., ¶2.  The $47,242 fee initially sought is still accurate and is evidenced by the invoices issued the Petitioner Jha.  Hinks Reply Decl., ¶3.

            ZFP has generated a work-in-progress invoice for services in January 2023.  O’Neill Reply Decl., ¶2, Ex. A.  ZFP has incurred $4,612.50 in fees beyond those covered in the moving motion.  O’Neill Reply Decl., ¶3, Ex. A. 

 

            D. Analysis

            Petitioners moved for an award of $486,053 in attorney’s fees.  This includes a $154,804.50 lodestar and a 3.0 multiplier, for a total of $464,413.50.  This also includes $27,027.50 for preparation of the fee motion and an additional $4,612.50 for preparation of the reply. 

 

            1. Entitlement

            Petitioners seek fees pursuant to Govt. Code section 65589.5(k) and section 1021.5.  Mot. at 4.  The court need only decide the former.

            When a party prevails in an action to enforce section 65589.5, the court shall also award reasonable attorney's fees and costs of suit to the plaintiff or petitioner, except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes of Govt. Code section 65589.5.  §65589.5(k)(1)(A)(ii).  A housing organization shall be entitled to reasonable attorney's fees and costs if it is the prevailing party in an action to enforce this section.  Govt. Code §65589.5(k)(2).

The City does not dispute that YIMBY is a housing organization whose mission is to increase the accessibility and affordability of housing in the state and that it is entitled to its attorney’s fees under Govt. Code section 65589.5(k)(2).  Nor does the City dispute that Petitioners Jha and Trauss are entitled to attorney’s fees under Govt. Code section 65589.5(k)(1)(A)(ii). 

 

            2. Reasonableness

            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 (“Martino”) (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.  “‘The reasonable market value of the attorney's services is the measure of a reasonable hourly rate.  [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel.  [Citations.]’”  Center For Biological Diversity v. County of San Bernardino, (2010) 188 Cal.App.4th 603, 619. 

            A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred.  See Hadley v. Krepel, (1985) 167 Cal.App.3d 677, 682.  “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. 

            In determining whether the requested attorney’s fees are reasonable, the court’s “first step involves the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate.  The lodestar figure may then be adjusted, based on consideration of facts specific to the case, in order to fix the fee at the fair market value for the legal services provided.”  Gorman v. Tassajara Development Corp., (2008) 162 Cal.App.4th 770, 774 (“Gorman”).  In adjusting the lodestar figure, the court may consider the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. EnPalm LLC v. Teitler, (2008) 162 Cal.App.4th 770, 774; see also PLCM Group, Inc. v. Drexler, (2000) 22 Cal.4th 1084, 1095. 

 

            a. Hourly Rates

            ZFP’s O’Neill billed $325 per hour, Patterson billed $550 per hour, Little billed $250 per hour, Brough billed $475 per hour, and Giove billed $200 per hour.  O’Neill Decl., ¶19, Ex. A. 

            JMBM’s Hinks billed at $835 per hour in 2021 and $875 per hour in 2022.  Hinks Decl., ¶20.  Freedman billed at $585 per hour in 2021, $625 per hour in the first half of 2022, and $635 in the second half of 2022.  Hinks Decl., ¶20.  Consoli billed at $410 per hour in 2021 and $525 per hour in 2022.  Hinks Decl., ¶20.

            The City does not dispute the hourly rate for any attorney.

 

            b. Reasonable Hours

            ZFP billed 58.6 hours for Patterson, 228.5 for O’Neill, 0.3 for Brough, 1.9 for Little, and 4.3 for Giove.  Mot. at 7.

            JMBM billed 34.4 hours for Freedman, 21.9 for Hinks, and 4.7 for Consoli.  Mot. at 7.

            The City disputes the hours of ZFP and JMBM as follows.

           

            (1). Administrative Proceedings

            ZFP does not include the hours spent on the administrative appeal hearing in its invoices.  O’Neill Decl., ¶8, Ex. A.  JMBM’s pre-lawsuit hours include: (1) 2.5 hours by Consoli to review correspondence and project records, analyze potential HAA claims, and confer with co-counsel; (2) 1.9 hours by Freedman to confer with Jha and co-counsel and review records; (3) 1 hour by Hinks to review records and advise on strategy; and (4) 3.6 hours by Freedman in August 2021 to draft letters to the City Council and appear at the administrative hearing.  Hinks Decl., ¶11.

            The City argues that Hinks cannot recover for the one hour spent on administrative proceedings.  Opp. at 3; Hinks Decl., ¶11.  This argument extends to all other administrative hours.

            Generally, section 1021.5 attorney fees are not recoverable for administrative proceedings as a matter of law.  In Beach Colony II Limited v. Coastal Comm., (“Beach”) (1985) 166 Cal.App.3d 106, the court determined that section 1021.5 attorney fees are not recoverable for administrative proceedings.  The Beach court began its analysis by noting that the language of section 1021.5 requires the successful party to prevail in an “action.”  Id. at 115.  The party seeking fees in Beach argued that the term “action” includes an administrative proceeding.  In reliance on the California Supreme Court’s holding in Serrano v. Unruh, (“Serrano”) (1982) 92 Cal.3d 621, 636, the Beach court stated that an action is “merely a form of judicial remedy sought to protect a right or redress a wrong.”  Beach, 166 Cal.App.3d at 115-16 (italics in original).  A “judicial remedy” is one ‘administered by the courts of justice, or by judicial officers empowered for that purpose[.]” Id.  at 116 (citing Serrano, 92 Cal.3d at 636, n. 23). 

            The Beach court contrasted section 1021.5's language with the express language in CCP section 1028.5, a statue governing recovery of attorney’s fees in civil actions by small businesses against state regulatory agencies, which specifically allows a prevailing small business to recover as reasonable expenses those “expenses included in administrative proceedings.”  Beach, supra, 166 Cal.App.3d at 116 (italics in original).  The Beach court concluded that the section 1021.5's failure to refer to administrative proceedings “suggests, at least, the section was not meant to apply to nonjudicial aspects of an administrative proceeding.”  Ibid.  See also Sampson v. Parking Service 2000 Com., Inc., (2004) 117 Cal.App.4th 212, 223 (term “civil action” in Labor Code section 1194 governing award of attorney’s fees did not include an administrative proceeding).[1]  

There is contrary authority in Edna Valley Watch v. County of San Luis Obispo, (“Edna Valley”) (2011) 197 Cal.App.4th 1312,1318 (citing Best v. California Apprenticeship Council, (“Best”) (1987) 193 Cal.App.3d 1448, 1457), that section 1021.5 provides for recovery of attorney’s fees in administrative hearings.  The Best court disagreed with Beach, holding that the “appropriate inquiry” for determining whether a participant in an administrative hearing is entitled to section 1021.5 attorney fees “properly focuses on effectuating the private attorney general doctrine rather than superficially applying the face of the statute.”  Id. at 1459.  Best also distinguished between the term “action” in CCP section 22 and a “special proceeding” in CCP section 23, noting that mandamus is a special proceeding, not an action, and yet section 1021.5 attorney’s fees can still be awarded in a mandamus proceeding.  Id. at 1460.  Best further relied on California Supreme Court’s statement in In re Head, (1986) 42 Cal.3d 223, 226, that the nature of the relief sought, not the label or procedural device by which the action is brought, is determinative of the right to seek section 1021.5 attorney’s fees.  Id. at 1461.