Judge James C. Chalfant, Case Number: 21STCV03657, Date: 2023-12-14 Tentative Ruling

Petitioners Grassroots Coalition and the Ballona Ecosystem Education Project (collectively, “Grassroots”) seeks a $601,992.50 award of attorney’s fees from Respondent California Department of Fish and Wildlife (“CDFW”).

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

Petitioners, which are non-profit organizations, commenced this proceeding on January 28, 2021, alleging a cause of action for mandamus pursuant to the California Environmental Quality Act (“CEQA”). The verified Petition alleges in pertinent part as follows.

The Ballona Wetlands is an approximately 600-acre remnant of 1700 acres of marshy land in the late 1800s. Proponents of the Ballona Wetlands Restoration Project (“Project”) have asserted that the Ballona Wetlands was 70% saltwater marsh, which the Project seeks to restore. Analysis by the U.S. Environmental Protection Agency (“EPA”) instead suggests that the area was a mixture of dynamic and freshwater marsh and vegetated wetland (salt marsh), not a 70% saltwater monoculture.

The constant full-tidal salt marsh the Project seeks to achieve will mean a massive disturbance of soil. It would also cause both polluted Santa Monica Bay water and urban run-off from the Ballona Creek channel to harm the water quality and habitat in the wetlands. The habitat in the Ballona Wetlands is a rare coastal seasonal freshwater/brackish water marsh ecosystem.

Project opponents identified a freshwater alternative consistent with the historical and natural topography of Ballona Wetlands, but CDFW ignored that alternative without further analysis.

The project description in the Final Environmental Impact Report (“FEIR”) is inaccurate and misleading insofar as it discusses “restoration” but would remove existing freshwater wetlands and replace it with a non-naturally occurring full tidal estuarine environment.

The FEIR fails to identify a preferred alternative and instead identifies a range of alternatives in violation of the CEQA mandate for a stable project description.

Most of the studies relied on in the FEIR were prepared before 2012 and do not reflect the current baseline. The FEIR fails to properly study baseline conditions with a proper hydrological study or analyze the extent to which the wetlands and underlying aquifers currently are being drained by related development.

The FEIR fails to consider the change in circumstances that CDFW was required to cap drains as required by a lawsuit filed against it by Grassroots.

The FEIR fails to evaluate impacts to the oil and gas infrastructure caused by the Project, as well as to aquifers underlying the Ballona Wetlands, which are potential sources of drinking water.

Project opponents raised several unmitigable impacts to wildlife and plants in part because the Project would excavate 2.5 million cubic yards of sensitive wetland habitat. The FEIR fails to analyze and improperly deferred mitigation for impacts to habitat and wildlife.

The FEIR fails to properly evaluate the Project’s impacts to the existing and historical gas and oil infrastructure, or to the aquifers underlying the Reserve. It also fails to properly evaluate or mitigate direct, indirect, and cumulative impacts to several endangered, protected, and special status wildlife species. The FEIR instead chose to improperly defer study and mitigation of impacts to habitats and wildlife.

The FEIR does not acknowledge that the Project would violate Coastal Act section 30240 because it disrupts wetlands for flood control purposes.

The FEIR dismisses the Project’s impact on climate change via the illogical conclusion that the release of carbon dioxide gases from 2.5 million cubic yards of soil will have an insignificant unmitigable effect. CDFW did not analyze the sequestration of these gases by existing wetlands.

CDFW did not reasonably respond to comments or discuss disputes between experts. Its responses also materially changed the Draft EIR (“DEIR”) such that it should have been recirculated. Although the Project is on a registered Sacred Site, CDFW failed to consult with Native American tribes before FEIR certification.

The FEIR improperly segments future portions of the Project and related projects that would be necessitated by approval of the Project.

Petitioners seek a writ of mandate compelling CDFW to set aside certification of the Project’s FEIR and vacate related approvals. Petitioners also seek an injunction enjoining CDFW from altering the Reserve’s environment until an EIR is certified that complies with CEQA. Grassroots also seeks attorney’s fees and costs.

On February 11, 2021, CFDW signed a Notice and Acknowledgement for the Petition.

On March 8, 2021, Department 54 (Hon. Maurice A. Leiter) found this case related to: Defend Ballona Wetlands et al. v. California Department of Fish and Wildlife, (“Defend”) 21STCP00240; Protect Ballona Wetlands v. California Department of Fish and Wildlife, (“Protect”) 21STCP00237; and Ballona Wetlands Land Trust v. CDFW, (“Land Trust”) 21STCP00242, (collectively, “Ballona Cases”).

On May 3, 2021, Department 1 reassigned the Ballona Cases to this court (Dept. 85).

On July 15, 2021, the court consolidated the Ballona Cases for purpose of trial only, including consolidated briefs by Petitioners.

On August 10, 2021, the court related Grassroots Coalition et. al v. California State Coastal Conservancy (“Grassroots v. Conservancy”), 21STCP02237 to the Ballona Cases.

On August 2, 2022, the parties stipulated to try Grassroots v. Conservancy separately from the Ballona Cases.

On March 14, 2023, the court granted an ex parte application allowing Petitioners Protect and Land Trust to file a joint reply brief separately from Petitioners Defend and Grassroots, which would file their own joint reply brief.

On May 17, 2023, the court granted the Petition in part. CDFW had failed to disclose and analyze the proper flood control design parameters in the DEIR and FEIR. The project description also failed to adequately commit CDFW to specific performance criteria when exercising its authority to reduce restoration goals based on disturbance to other habitats without any supplemental environmental review, or to change hydrology or dissolved oxygen performance goals if current goals are not met. The issued writ would require CDFW to set aside the FEIR and any Project approvals, prepare and certify a legally adequate EIR for the Project if it chooses to proceed, and suspend any Project activity that could result in an adverse change or alteration to the physical environment until then.

On September 12, 2023, Grassroots was notified its appeal was in default for failure to timely pay the deposit for a reporter’s transcript or the $50 fee for holding the deposit in trust.

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, (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. (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, (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.

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. “‘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, (“Center”) (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, (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.

Grassroots’ primary goal in this action was to strike down CDFW’s approval of the Ballona Wetlands Restoration Project and the certification of the FEIR. Cardiff Decl., ¶2. This case was the most important event in Grassroots’ existence, and the Petition’s denial would have invalidated 30 years of advocacy. Cardiff Decl., ¶24.

The court’s May 17, 2023 decision (“Decision”) granted the Petition in part. Cardiff Decl., Ex. A (“Decision”). It noted that the substantial evidence review was appropriate for any factual determinations. Decision, p. 5. This was especially true when the agency has been delegated the regulatory authority in a particular field. Decision, p. 5. Here, CDFW’s mission is to manage California's diverse, fish, wildlife, and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment of the public. Decision, p. 5.

The Decision divided the Petitioners’ arguments into seven points: (1) it was impossible to identify the preferred Project from the three restoration alternatives in the project description, (2) the project description's reference to “restoration” was misleading, (3) the project description failed to include the correct flood control design standard, (4) the Project’s restoration performance criteria were indefinite and lacked a binding framework, (5) the FEIR failed to include a vegetation map, (6) the FEIR failed to consider a reasonable range of alternatives by excluding a freshwater

alternative, and (7) the FEIR’s analysis of environmental impacts was inadequate. Decision, p. 20.

The court agreed with two of these arguments. As to flood control designs, the FEIR failed to list the 68,000 cubic-feet-per-second standard the Army Corps of Engineers (“Corps”) would impose, analyze the flood impacts of the Project under that flow standard, and analyze the wildlife and habitat impacts of a levee design change under that standard. Decision, p. 35.

As to restoration performance criteria, the conceptual plan authorized shifts in target habitats or performance goals if CDFW determines that corrective action to meet the original criteria would cause unacceptable disturbance to other habitats or animal populations. Decision, p. 45. CDFW would not need a supplemental environmental review or obtain public comment to make this shift. Decision, p. 45. This makes the environmental cost of the Project as a whole unascertainable. Decision, p. 46. A commitment to supplemental review could easily rectify this, but the FEIR did not provide for it. Decision, p. 46.

The Decision required a writ directing CDFW to set aside the FEIR and any Project approvals, prepare and certify a legally adequate EIR for the Project if it chooses to proceed, and suspend any Project activity that could result in an adverse change or alteration to the physical environment until CDFW complies. Decision, p. 66.

Although some portions of the Decision were adverse to Grassroots, the result is favorable. Cardiff Decl., ¶27. It compels CDFW to set aside the EIR, reanalyze the flood calculations, and revise, recirculate, and reconsider public comments on the new EIR. Cardiff Decl., ¶27. Grassroots can now rely on this additional administrative process to advocate to prevent the bulldozing, excavating and burying of the ecological reserve. Cardiff Decl., ¶27.

Grassroots only appealed the Decision because it was concerned that certain issues, such as whether project goals can preclude consideration of a freshwater alternative, would otherwise become precedent in administrative or judicial proceedings. Cardiff Decl., ¶27.

Todd Cardiff (“Cardiff”) graduated from law school in 2002 and founded the environmental law firm Coast Law Group LLP in 2003. Cardiff Decl., ¶¶ 5-6. He sold his partnership and started his own practice in 2008. Cardiff Decl., ¶6. He has since been a primary attorney on numerous environmental, public interest, and free speech cases. Cardiff Decl., ¶8.

Cardiff’s last approved rate was $700 per hour in McCann v. City of San Diego (“McCann”), Case No. 37-2019-00011813-CU-TT-CTL in August 2022. Cardiff Decl., ¶9, Ex. 2. The city did not contest Cardiff’s proposed rate of $700 per hour. Cardiff Decl., ¶9, Ex. 2. The McCann court held that $700 per hour was on the high end of the range a client might expect to pay attorneys with similar experience for similar work with similar stakes in San Diego during the relevant timeframe. Cardiff Decl., ¶9, Ex. 2. The blended hourly rate with the two other attorneys in that case was $550.58. Cardiff Decl., ¶9, Ex. 2.

Paul Best (“Best”) began work as a paralegal in 2000 after years of work in media production. Best Decl., ¶3. The last case he worked on was a contract case where the contract had an attorney’s fee provision. Best Decl., ¶4. His approved rate in that fee motion was $125 per hour. Best Decl., ¶4. $125 is well within the range of fair market rates for a paralegal with that experience. Best Decl., ¶4.

In 2017, the court in United Walnut Taxpayers v. Mt. San Antonio Community College District, Case No. BC576587, approved an hourly rate of $175 for Best. Cardiff Decl., ¶10. There is no reason the fair market rate for his work would have fallen since then. Cardiff Decl., ¶10.

Paralegal Kimberly Coffin (“Coffin”) has been a paralegal for 20 years. Cardiff Decl., ¶11. She was employed at another firm and only worked for Cardiff for one day in this case. Cardiff Decl., ¶11. Cardiff believes Coffin’s old firm charged $100 per hours for her work, but he could not obtain a declaration from Coffin to confirm this. Cardiff Decl., ¶11.

The Legal Billing software tracks time spent on tasks by the second, but Cardiff converts this to tenths of an hour for billing. Cardiff Decl., ¶12. Based on Legal Billing’s data, Cardiff prepared spreadsheets reflecting the time spent on this case between January 2021 and September 2023. Cardiff Decl., ¶13, Ex. 3. They show that Cardiff spent 434.20 hours on this case, Best 12.7 hours, and Coffin 5 hours. Cardiff Decl., ¶14, Ex. 3.

Of Cardiff’s 434.20 hours, he spent 32.1 hours preparing this motion for attorney’s fees. Cardiff Decl., ¶29, Ex. 3. He expects to spend another 20 hours reviewing the opposition and preparing the reply to this motion. Cardiff Decl., ¶¶ 14-15.

Of the 434.20 – 32.1 = 402.1 hours Cardiff spent on the merits of the case, 6.2 hours were to draft the Petition. Cardiff Decl., ¶29, Ex. 3. 7.9 hours were to draft notices of commencement, notices of acknowledgement, notices to the attorney general, notices to related agencies, final judgments, and other routine documents. Cardiff Decl., ¶29, Ex. 3, pp. 3, 7, 12, 14, 20, 34, 38.

Other items discuss administrative tasks. 10.9 hours were for other forms of document preparation, exhibit preparation, bookmarking, and file format conversion. Cardiff Decl., ¶29, Ex. 3, pp. 22, 30, 36. Cardiff spent 3.1 hours to prepare and procure the record, including through stipulations and emails. Cardiff Decl., ¶29, Ex. 3, pp. 10-13, 19-21.

After receipt of the record, Cardiff then spent 30.7 hours to review the record, EIR, and other evidence. Cardiff Decl., ¶29, Ex. 3, pp. 4, 19-20, 23, 28. He has also billed 17 hours for legal research and review of notice issues, statutes, case law, definitions, and the judge. Cardiff Decl., ¶29, Ex. 3, pp. 1, 4, 5, 7, 11, 16-17, 19, 22, 27, 35.

As to the briefs on the merits, Cardiff spent 96.4 hours to draft the opening brief and 56.8 to draft the reply and related requests for judicial notice. Cardiff Decl., ¶29, Ex. 3, pp. 23-26, 28-32. Of these, 36.1 of the opening brief’s hours and 18.3 of the reply brief’s hours were for “content and space”, to check citations or formatting, or to integrate or revise existing drafts. Cardiff Decl., ¶29, Ex. 3, pp. 25-26, 28, 31-32.

Although Cardiff’s hours may seem unreasonable, they reflect the nature and complexity of the case, the FEIR, the administrative record, and CDFW as a respondent. Cardiff Decl., ¶16. The FEIR asserted that the Project would provide a significant benefit to the environment. Cardiff Decl., ¶17. Cardiff realized that demonstrating this and overcoming the presumption the CDFW enjoyed would require a significant investigation. Cardiff Decl., ¶17.

A cursory reading of Project site studies seems to support CDFW’s position that it used to be an open water tidally influenced salt marsh. Cardiff Decl., ¶18. Cardiff consulted Margot Griswold (“Griswold”) in numerous calls to understand the ecology of the Ballona Wetlands. Cardiff Decl., ¶18. Cardiff’s hours spent talking to “MG” include 1.9 hours on May 22, 2021, 0.7 hours on February 23, 2022, 0.4 hours on January 27, 2023, 0.7 hours on May 1, 2023, and 0.2 hours on May 7, 2023. Cardiff Decl., Ex. 3, pp. 9, 17, 28, 32.

Cardiff also contacted Travis Longcore (“Longcore”), an expert whose studies CDFW has cited. Cardiff Decl., ¶19. His advice helped form arguments why the Project did not constitute “restoration.” Cardiff Decl., ¶19. That argument did not prevail in court, but it had substantial factual merit and was reasonable to develop. Cardiff Decl., ¶19. Longcore also explained how the levees and public access trails would fragment the habitat. Cardiff Decl., ¶19. Cardiff spent 0.2 hours talking to “TL” on May 8, 2023. Cardiff Decl., Ex. 3, p. 33.

Cardiff consulted two civil engineers, Kevin Wohlmut (“Wohlmut”) and the anonymous “TM.” Cardiff Decl., ¶20. They possess specialized knowledge of flood control levees and flood calculations. Cardiff Decl., ¶20. This helped Cardiff understand why the FEIR’s use of improper flood control standards undermined its ability to evaluate the Project’s impact. Cardiff Decl., ¶20. Cardiff spoke to KW for 0.5 hours on December 9, 2021, and 0.4 hours on January 10, 2022. Cardiff Decl., Ex. 3, p. 15. Cardiff spoke to TM for 0.9 hours on December 10, 2021, 0.1 hours on January 10, 2022, and 0.1 hours on January 11, 2022. Cardiff Decl., Ex. 3, pp. 15-16.

Various experts in geological survey maps also questioned the 1.7 million cubic yards of fill allegedly placed in one area. Cardiff Decl., ¶21. TM provided topographical maps showing no elevation change in the area from before the construction at issue to afterwards. Cardiff Decl., ¶21. Grassroots eventually chose not to brief this argument due to space limitations, but it was reasonable to investigate the argument as a challenge to one of the justifications supporting the “restoration” project. Cardiff Decl., ¶21.

Cardiff had to intensively review the 100,000-page administrative record. Cardiff Decl., ¶22. For example, the applicable Corps requirements preclude burrowing animals from living on the levees. Cardiff Decl., ¶22. To find this, Cardiff had to locate a draft Operation and Maintenance Plan that the record’s index only identified as part of the “project description.” Cardiff Decl., ¶22.

The Operation and Maintenance Plan cited the Army Corps Standards, “Guidelines for Landscape Planting and Vegetation Management at Levees, Floodwalls, Embankment Dams, and Appurtenant Structures” (“Guidelines”). Cardiff Decl., ¶22. Cardiff had to find those Guidelines online. Cardiff Decl., ¶22. These Guidelines are what require and describe the removal of various burrowing animals on “earthen dams” like levees. Cardiff Decl., ¶22. An outdated copy of the Guidelines was also in the record, but it would not have been available to any members of the public who wanted to comment on the FEIR. Cardiff Decl., ¶22.

The original draft of the opening merits brief was 60 pages, 20 more than the 40 pages the court authorized. Cardiff Decl., ¶23. Cardiff worked 15 hours a day for three days to consider the different arguments, decide which ones to delete, and edit the remaining ones for clarity and accuracy. Cardiff Decl., ¶23, Ex. 3. Cardiff was also the primary drafter of the combined reply brief. Cardiff Decl., ¶23.

Best spent 3.5 hours for this case on January 26, 2023, 8.4 on April 21, and 0.8 to prepare his declaration in this action. Best Decl., ¶5; Cardiff Decl., Ex. 3. He has spent a total of 12.7 hours on this case. Best Decl., ¶5. Cardiff has ensured these hours only reflect time worked on this case, not the related cases. Cardiff Decl., ¶10.

Based on the listed hours, the total lodestar as of the opening brief for this motion is 434.20 x $700 = $303,940 for Cardiff, 12.7 x $175 = $2,222.50 for Best, and 5 x $100 = $500 for Coffin for a total of $303,940 + $2,222.50 + $500 = $306,662.50. Cardiff Decl., ¶14. The anticipated 20 hours for the reply to this fee motion add 20 x $700 = $14,000 in fees, for a total of $320,622.50. Cardiff Decl., ¶14.

Cardiff took this case at a substantially reduced rate. Cardiff Decl., ¶25. This was a highly technical case with a large administrative record, a highly deferential standard of review, and a substantial risk of losing the case. Cardiff Decl., ¶25. Failure would have financially hurt Cardiff’s office and Grassroots. Cardiff Decl., ¶25. The case load requirements precluded Cardiff from accepting other CEQA work, including an offer from Preserve Wild Santee. Cardiff Decl., ¶26. Cardiff also had to work over the holidays. Cardiff Decl., ¶26, Ex. 3.

Cardiff therefore asks for a 2.0 lodestar multiplier for his hours. Cardiff Decl., ¶25. This multiplier would exclude the 32.1 hours he spent to prepare this motion and the anticipated 20 hours for the reply to this fee motion ($14,000). Cardiff Decl., ¶29. It would therefore add 402.1 x $700 = $281,470 to the requested fees. Cardiff Decl., ¶29. The total requested amount is therefore $601,992.50. Cardiff Decl., ¶30.

CDFW has settled the attorney’s fees and costs in the related actions. Sasaki Decl., Exs. A-C. The settlement agreements for Protect and Land Trust identify those petitioners as the parties that drafted the sections of the opening brief concerning the two issues on which the court granted the Petition. Sasaki Decl., Exs. A-B. Counsel for the two petitioners spent 233.9 hours and 248 hours on this case, respectively. Sasaki Decl., Exs. A-B. The settlement agreements awarded $128,975 in fees for Protect and $146,015.50 in fees for Land Trust. Sasaki Decl., Exs. A-B.

At the May 9, 2023 hearing, the Petitioners for the four actions explained each of them wrote specific sections of the opening brief. Sasaki Decl., Ex. D. They decided to have each attorney address the arguments that attorney wrote. Sasaki Decl., Ex. D. Counsel for Protect argued the flood control-related issues. Sasaki Decl., Ex. D. Counsel for Land Trust argued the FEIR should not allow CDFW to change performance criteria at will. Sasaki Decl., Ex. D.

Petitioner Grassroots seeks attorney’s fees based on a $320,622.50 lodestar plus a 2.0 multiplier for all but 32.1 of Cardiff’s hours spent on the fee motion, for a total of $601,992.50.

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., 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.

Grassroots’ primary goal in this action was to strike down CDFW’s approval of the Ballona Wetlands Restoration Project and the certification of the FEIR. Cardiff Decl., ¶2. The Decision ordered CDFW to set aside the FEIR and any Project approvals, prepare and certify a legally adequate EIR for the Project if it chooses to proceed, and suspend any Project activity that could result in an adverse change or alteration to the physical environment until CDFW complies. Mot. at 7; Decision, p. 66. DCFW does not dispute that Grassroots is a successful party for the purposes of section 1021.5.

The first prong of the section 1021.5 test — whether a petitioner’s action has resulted in the enforcement of an important right affecting the public interest — requires a determination of the strength or societal importance of the right involved. Roybal v. Governing Bd. of Salinas City Elementary School Dist., (2008) 159 Cal.App.4th 1143, 1148. The right, whether constitutional or statutory, must be an important right affecting the public interest, not something involving trivial or peripheral public policies. Ibid. The societal importance of a right generally is determined by realistically assessing the significance of that right in terms of its relationship to the achievement of fundamental legislative goals. Robinson v. City of Chowchilla, (2011) 202 Cal.App.4th 382, 394.

Litigation brought to enforce the provisions of CEQA has been held to involve important rights affecting the public interest, and the private attorney general theory applies to such suits. Mot. at 7; San Bernardino Valley Audubon Soc'y v. County of San Bernardino (1984) 155 Cal.App.3d 738, 754.

The court found that the FEIR failed to account for the impact of the Project under the flow standards that the Corps would impose. Decision, p. 35. The Project also had unascertainable impacts insofar as it allowed CDFW to change its performance goals without supplemental environmental review. Decision, pp. 45-46. The writ prevented CDFW from implementing this Project with these deficiencies. This outcome affected a public interest.

The second prong of the section 1021.5 test is whether plaintiff’s action has conferred a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. The trial court must determine the significance of the benefit and the size of the group favorably impacted by making a realistic assessment, in light of all the circumstances, of the gains which have resulted in a particular case. Bui v. Nguyen, (2014) 230 Cal.App.4th 1357, 1366.

Title 14 of the California Code of Regulations (“14 CCR”) defines the Ballona Wetlands as an ecological reserve. 14 CCR §630(b)(10). All ecological reserves are maintained for the primary purpose of developing a statewide program for protection of rare, threatened, or endangered native plants, wildlife, aquatic organisms, and specialized terrestrial or aquatic habitat types. 14 CCR §630(a).

The further along a project is before environmental review begins, the stronger the incentive to ignore environmental concerns that could be dealt with more easily at an early stage of the project. Laurel Heights Improvement Assn. v. Regents of University of California, (1988) 47 Cal. 3d 376, 395. Mot.at 8.

The writ has prevented CDFW from proceeding with the Project or causing an adverse change to the physical environment before it takes additional steps to consider the impact. Decision, p. 66. The Petition helped protect an ecological reserve and yielded a significant benefit to the public at large.

The third prong asks whether the necessity and financial burden of private enforcement are such as to make the award appropriate. 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., (2006) 136 Cal.App.4th 1331, 1348.

When a private suit is against the governmental agencies that bear responsibility for the action at issue, the necessity of private, as compared to public, enforcement is often clear. Mot. at 9; Woodland Hills, supra, 23 Cal.3d at 941; Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal.App.3d 633, 639.

Grassroots brought suit against CDFW to ensure that the Project complied with CEQA. Mot. at 9. Private enforcement was necessary.

Grassroots does not own any property or business affected by the state of the Ballona Wetlands. Mot. at 9. CDFW does not dispute that Grassroots does not obtain any financial benefit from the Decision. The financial burden of private enforcement makes a section 1021.5 attorney’s fee award appropriate.

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.

CDFW does not dispute Best’s hourly rate of $175 or Coffin’s rate of $100. Cardiff Decl., ¶¶ 10-11. It asserts that Cardiff’s $700 hourly rate is excessive. Opp. at 10.

Cardiff bases his rate on McCann, where the city did not contest his proposed hourly rate of $700. Cardiff Decl., ¶9, Ex. 2. Grassroots cites Heritage Pacific Financial, LLC v. Monroy, 215 Cal. App. 4th 972, 1009, which noted that rate determinations for the plaintiff’s attorney in other cases can be satisfactory evidence of the prevailing market rate. Reply at 7.

The court is familiar with the prevailing rate in Los Angeles for this type of case. Cardiff’’s proposed hourly rate of $700 is too high. It is true that the court must impose the prevailing rate for attorneys in the Los Angeles community and not the lower rate prevailing in the San Diego area. However, even the court in McCann acknowledged a rate of $700 per hour was on the “high end” of the range a client might expect to pay attorneys with similar experience for similar work with similar stakes in San Diego during the relevant timeframe. Cardiff Decl., ¶9, Ex. 2. Cardiff was also only one of three attorneys in that case, whose blended rate was $550.58. Cardiff Decl., ¶9, Ex. 2. Opp. at 10-11.[1]

Cardiff’s hourly rate is reduced to $500. Best’s hourly rate remains $175, and Coffin’s hourly rate remains $100.

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, (2014) 230 Cal.App.4th 459, 488; Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., (2008) 163 Cal. App. 4th 550, 564.

CDFW asserts that Cardiff’s 434.20 billed hours are excessive. Opp. at 6. Of these 434.20 hours, Cardiff spent 402.1 hours on the merits case and 32.1 hours preparing this motion for attorney’s fees. Cardiff Decl., ¶29, Ex. 3. Cardiff expects to spend 20 hours preparing the reply for the fee motion. Cardiff Decl., ¶¶ 14-15. CDFW does not dispute Best’s 12.7 hours or Coffin’s 5 hours. Cardiff Decl., ¶14, Ex. 3.

Grassroots acknowledges that Cardiff’s billed hours may seem unreasonable. Cardiff Decl., ¶16. Cardiff argues they reflect the complex nature of the case, the EIR, the administrative record, and the CDFW as a respondent. Cardiff Decl., ¶16. Cardiff had to overcome the deferential standard of review that CDFW enjoyed as the agency responsible for ecological preservation. Cardiff Decl., ¶17; Decision, p. 5. Cardiff had to consult with experts about the original nature of the Project site, whether the Project constituted “restoration,” why the FEIR’s use of improper flood control standards undermined its ability to evaluate the Project’s impact, and the difference in topographical maps. Cardiff Decl., ¶¶ 18-21.

CDFW notes that it settled with the Petitioners in Protect and Land Trust, and the settlement agreements state that the Petitioners’ attorneys spent 233.9 and 248 hours, respectively, on this action. Sasaki Decl., Exs. A-B. CDFW asks the court to reduce Grassroots’ hours to a comparable amount. Opp. at 7-8.

CDFW cites no authority authorizing the use of settlement agreements to determine the lodestar, and Grassroots is correct that the Petitioners in those two cases may have negotiated the number of hours and reduced their fee demand. Reply at 2. The court also does not believe that the settlement agreements can be considered for the truth of the hours expended by the attorneys for these other Petitioners. The court does find, however, that the hours listed in the settlement agreements are reasonable.

The settlement agreements correctly state that Protect and Land Trust were responsible for the only two successful arguments at trial. Sasaki Decl., Exs. A-B. Opp. at 7. Grassroots argues that Cardiff was the first attorney to work on the consolidated opening brief and the last to edit it. Cardiff Decl., ¶23, Ex. 3. Reply at 3. He performed legal research on project description issues, identified adverse case law, and supplied the other attorneys with documents from the record to support their arguments. Reply at 3.

Crediting these points, the fact remains that the counsel in Protect and Land Trust wrote the prevailing sections of the joint brief, and also argued those issues at trial. All Petitioners chose to rely for argument at trial on the attorney who prepared that particular section of the joint opening brief. Sasaki Decl., Ex. D. Protect prepared and argued the flood control-related issues, and Land Trust prepared and argued the issue that the FEIR should not allow the CDFW to change performance criteria at will. Sasaki Decl., Ex. D. These are the arguments on which the Petitioners prevailed. Decision, pp. 35, 45-46, 66. The Petitioners did not prevail on any of Grassroots’ arguments, and this fact warrants a significant reduction in Cardiff’s hours.

CDFW also correctly asserts that less experienced lawyers with lower rates could have performed a significant portion of the work Cardiff performed. See SOURCE, supra, 235 Cal. App. 4th at 1186-87. Grassroots argues that SOURCE does not support adjusting Cardiff’s hourly rate to account for the overbilling. Reply at 6. There, the real party-in-interest pointed to specific hours partners spent on administrative tasks the law clerks could have performed. 235 Cal. App. 4th at 1187. If CDFW had identified specific items in the Cardiff’s spreadsheet, Grassroots would have agreed to cuts for those hours. Reply at 6. CDFW’s broad cites to pages of the spreadsheet that it asserts reflect such ministerial tasks are insufficient. Opp. at 10; Reply at 7.

CDFW’s failure to seek specific reductions for some issues does not mean that the court cannot reduce Cardiff’s hours when they are unreasonable.

Cardiff asserts he has extensive experience as the primary attorney on numerous environmental cases. Reply at 6; Cardiff Decl., ¶8. This case was also the most important event in Grassroots’ existence, and the Petition’s denial would have invalidated 30 years of advocacy. Cardiff Decl., ¶24. Cardiff therefore would not have trusted a junior attorney to perform the disputed work. Reply at 6.

Cardiff’s’ concern that the job must be done correctly and not left to an associate is undermined by the fact that he is apparently a sole practitioner. More important, CDFW cannot be tasked with paying attorney fees for clerical and other work that should be paid at a lower rate. Cardiff expended 10.9 hours for document preparation, exhibit preparation, bookmarking, and file format conversion. Cardiff Decl., ¶29, Ex. 3, pp. 22, 30, 36. He also spent 3.1 hours to prepare and procure the record. Cardiff Decl., ¶29, Ex. 3, pp. 10-13, 19-21. These are clerical tasks and Cardiff should have been able to trust his paralegal of 20 years to undertake them. Opp. at 10.

Although some tasks required a lawyer instead of a paralegal, an attorney billing at a lower rate could have conducted these tasks. Cardiff spent 7.9 hours to draft routine documents such as notices of commencement, notices of acknowledgement, notices to the attorney general, notices to related agencies. Cardiff Decl., ¶29, Ex. 3, pp. 3, 7, 12, 14, 20, 34, 38. None of these require a particular level of expertise. Cardiff also billed 17 hours for legal research and review of notice issues, statutes, case law, definitions, and the judge. Cardiff Decl., ¶29, Ex. 3, pp. 1, 4, 5, 7, 11, 16-17, 19, 22, 27, 35. Although Cardiff needed to understand the issues, he did not need expertise to conduct the research itself.

Cardiff spent 96.4 hours to draft the opening brief and 56.8 to draft the reply and related requests for judicial notice. Cardiff Decl., ¶29, Ex. 3, pp. 23-26, 28-32. This is a total of 153.2 hours for drafting the briefs. 54.4 of these hours were for “content and space”, to check citations or formatting, or to integrate or revise existing drafts. Cardiff Decl., ¶29, Ex. 3, pp. 25-26, 28, 31-32. This is excessive, particularly since Cardiff was responsible for only a portion of the briefs.[2]

CDFW notes that, although Grassroots cites Cardiff’s consultation with experts, the consultations actually took little of Cardiff’s billed time. Opp. at 8. He spent 3.9 hours with Griswold (Cardiff Decl., Ex. 3, pp. 9, 17, 28, 32), 0.2 hours with Longcore (Cardiff Decl., Ex. 3, p. 33), 0.9 hours with Wohlmut (Cardiff Decl., Ex. 3, p. 15), and 1.1 hours with an expert only known as TM (Cardiff Decl., Ex. 3, pp. 15-16). Opp. at 8.

CDFW questions Cardiff’s assertion that editing the briefs took substantial time. Opp. at 9; Cardiff Decl., ¶23. The court authorized a 40-page opening brief, and Cardiff asserts that the draft brief was 60 pages. Cardiff Decl., ¶23. However, the court also authorized Petitioners to file an appendix with no page limit, and the Petitioners filed a 25-page appendix. Opp. at 9, n. 2. CDFW questions why one attorney would disproportionately bear the burden of editing the briefs. Opp. at 9. Cardiff adequately explains that he performed the final edit to get the opening brief within the 40-page limit. Cardiff Decl., ¶23. Cardiff’s editing is not a basis to reduce his hours.

In sum, CDFW’s general objections are well taken. Cardiff neither drafted nor argued the prevailing issues and instead focused on issues that were lost at trial. These facts warrant a significant reduction in Cardiff’s hours to be reasonable. He further performed tasks that could have been performed by a paralegal or lower billed attorney. The court concludes that Cardiff expended 246 reasonable hours on the merits.

Cardiff billed 32.1 hours on his fee motion and anticipates another 20 hours for the reply and to attend the hearing. Cardiff Decl., ¶¶ 14-15, 29, Ex. 3. The total is 52.1 hours. These hours are somewhat unreasonable and are reduced to 40.1 hours.

CDFW has shown that Cardiff’s hours must be reduced significantly. Cardiff’s reasonable hours on the merits are reduced to 246. Best’s 12.7 hours and Coffin’s 5 hours are reasonable. Cardiff’s 52.1 hours for the fee motion are reduced to 40.1 hours.

Cardiff’s permitted rate is $500 per hour for 246 hours, for a total lodestar of $500 x 246 = $123,000. Best’s and Coffin’s fees total $2,222.50 + $500 = $2,722.50. Cardiff Decl., ¶14. The total lodestar is $123,000 + $2,722.50 = $125,722.50. Cardiff’s reasonable hours 40.1 hours for this fee motion total $500 x 40.1 = $20,050. The total fees are $145,772.50.

The lodestar for purposes of a multiplier or negative multiplier is $125,722.50. Grassroots requests a 2.0 multiplier. Cardiff Decl., ¶¶ 25, 29-30. Mot. at 13-15. CDFW requests a negative multiplier between 0.4 and 0.6 because Grassroots did not obtain all its desired results.

“[T]he unadorned lodestar figure reflects the general local hourly rate for a fee bearing case; it does not include any compensation for contingent risk, extraordinary skill, or any other factors a trial court may consider under Serrano III.” Ketchum v. Moses, (2001) 24 Cal.4th 1122, 1138. The factors to consider for adjustment to the lodestar include the novelty and difficulty of the litigation, the extent to which the litigation precluded other employment by the attorneys, the contingent nature of the fee award, the fact that an award against the state would ultimately fall on the taxpayers, the fact that the attorneys received public and charitable funding for the purpose of bringing lawsuits of the character involved, and the fact that the moneys awarded would inure not to the benefit of the individual lawyers but the organizations employing them. Ramos v. Countrywide Home Loans, Inc., (2000) 82 Cal.App.4th 615, 622-23.

Conversely, a trial court may reduce attorney fees based on the plaintiff’s lack of success. SOURCE, supra, 235 Cal. App. 4th at 1185. A petitioner’s lack of success on legally distinct causes of action can weigh against a positive multiplier or warrant imposition of a negative multiplier. Chavez v. City of Los Angeles, (2010) 47 Cal.4th 970, 989; Californians for Responsible Toxics Management v. Kizer, (1989) 211 Cal.App.3d 961, 975. Opp. at 17-18.

Cardiff worked this case at a partial contingency rate of $100 per hour to cover overhead. Cardiff Decl., ¶3. The extended litigation timeline and Grassroots’ inability to pay this fee further reduced how much it actually paid. Cardiff Decl., ¶3. Cardiff asserts that he could not accept other CEQA cases because of the demands of this case. Cardiff Decl., ¶26.

CDFW notes that taking the case on a partial contingency basis with a $10,000 initial payment mitigates the risk a multiplier is supposed to reflect. SOURCE, supra, 235 Cal. App. 4th at 1187-88. Opp. at 12. In SOURCE, the appellate court found that the trial court did not abuse its discretion when it chose not to award a multiplier. Id. at 1188. It also noted that the expenditure of 246 hours over one year did not preclude the law firm from taking on other fee-generating work. Id.

Grassroots cites Sonoma Land Trust v. Thompson, (2021) 63 Cal. App. 5th 978, 986-87, where the prevailing party’s insurance policy covered the first $500,000 in legal fees before counsel proceeded on a contingent basis. Reply at 8. Although this mitigated the risk, the non-contingent portion of the fee award represented less than a quarter of the lodestar and only 18% of the fair market value of the total fees. Id. at 987. The court granted a 1.4 multiplier. Id.

Although Grassroots identifies a possible alternate client Cardiff could have accepted (Cardiff Decl., ¶26), it provides no details about the nature of the lost case or whether the fees would have been contingent. Opp. at 12. In any case, Grassroots has failed to demonstrate that this case kept Cardiff from accepting other work.

While Cardiff has not shown that he lost any specific opportunities due to this case, the partly contingent nature of the case somewhat favors a multiplier.

Grassroots asserts the importance of the matter to the public warrants a fee multiplier. CDFW’s failure to disclose deficiencies in Project flood calculations left the public unable to intelligently evaluate the Project. After proper analysis, CDFW may find the environmental pricetag of the Project is too high and risky for critical wetlands. Mot. at 14-15.

As CDFW notes, a case’s purported importance to the public is not a factor generally recognized in the determination whether a multiplier is warranted in a section 1021.5 case because it is already a factor in the lodestar award. Thayer v. Wells Fargo Bak, NA, (2001) 92 Cal.App.4^th 819, 838. Opp. at 13.

In reply, Grassroots cites Krumme v. Mercury Ins. Co., (“Krumme”) (2004), 123 Cal. App. 4th 924, 947, as upholding a 1.5 lodestar based on significant public benefit. Reply at 10.

Grassroots has misinterpreted Krumme. The defendant had asked that the attorney’s fees award be “vacated, reduced, or remanded” solely because the plaintiff obtained injunctive relief and failed to obtain the requested relief of restitution. Id. at 947. In ruling that the petitioner was entitled to section 1021.5 fees, the court concluded that the defendant attempted to elevate one section 1021.5 factor above all others. Id. The court did not address the validity of the multiplier except to note that the trial court reduced the requested multiplier of 2 to 1.5. Id. Krumme did not imply that public benefit can justify a multiplier in a section 1021.5 case.

The purported importance of the matter to the public is not a factor for a fee multiplier.

Grassroots asserts this action was difficult and complex because of the deferential standard of review. Mot. at 14. The Decision noted that the substantial evidence review was appropriate for any factual determinations. Decision, p. 5. This was especially true when the agency has been delegated the regulatory authority in a particular field. Decision, p. 5. CDFW’s mission is to manage California's diverse, fish, wildlife, and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment of the public. Decision, p. 5.

CDFW asserts that this heightened standard did not apply to the two arguments on which the Petitioners prevailed. The court agreed that the FEIR failed to list the flow standard the Corps would impose, analyze the flood impacts of the Project under that flow standard, and analyze the wildlife and habitat impacts of a levee design change under that standard. Decision, p. 35. As to restoration performance criteria, the ability CDFW would have to shift habitats or performance goals without supplemental environmental review or additional public comment rendered the Project’s environmental costs unascertainable. Decision, pp. 45-46. Because neither of these arguments were based on fact, only the rejected arguments were subject to higher judicial deference to CDFW. Opp. at 13.

This case was complex, primarily because of its factual detail. It was not novel, however, and the difficulty for Grassroots was lessened by the joint effort of Petitioners. This factor does not favor a multiplier.

CDFW cites San Diego Police Officers Ass’n v. San Diego Police Dept, (“San Diego Police”) (1999) 76 Cal. App. 4th 19, 24, which approved a negative multiplier because the plaintiff achieved very limited success and the portion of its writ petition on which it prevailed did not involve complex issues of law. Opp. at 13.

In San Diego Police, the plaintiff police union sought pursuant to Penal Code section 148.6 to compel the San Diego Police Department to issue an advisory warning and require the complainant's signature in every instance in which a person makes a complaint regarding a police officer. Id. at 21. The Police Department asserted that Penal Code section 148.6 only requires it to issue the advisory when a member of the public complains of misconduct by a police officer during the performance of his or her duties. Id. The trial court agreed but granted the petition in part, requiring the Police Department to issue the advisory even when the misconduct might arise to the level of a criminal offense. Id. at 22. The appellate court affirmed and approved the trial court’s negative multiplier on the basis that the vast majority of the police union’s effort was expended on issues where the Police Department prevailed. Id. at 24.

Grassroots cites (Mot. at 11) Sundance v. Municipal Court, (“Sundance”) (1987), 192 Cal. App. 3d 268, 273, which addressed the trial court’s reduction in fees based on hours on which the plaintiffs did not prevail. Id. The appellate court noted that an attorney cannot be expected to know which potentially meritorious legal theories will prevail. The result is what matters, and the rejection or failure to reach alternative legal grounds for a desired outcome is not a sufficient reason for reducing a fee. Sundance, supra, 192 Cal. App. 3d at 274. The matter was remanded to the trial court to exercise discretion whether the time spent on the unsuccessful legal theory was reasonably incurred. Id. at 273-74.

CDFW asserts (Opp. at 15-16) that the facts in this case are similar to Sokolow v. County of San Mateo, (“Sokolow”) (1989) 213 Cal. App. 3d 231. There, the Mounted Patrol of San Mateo County (“Patrol”), a private group with a close association with the county sheriff’s department, had a male-only policy. Id. at 235-36. It rejected Sonya Sokolow’s attempts to join the privage group. Id. at 238. Sokolow asked the sheriff’s office to inform Patrol that its current relationship could not continue if it continued to discriminate against women. Id. at 239. Sokolow’s motion for summary judgment asked the trial court to order the Patrol to admit her as a member, or alternatively an order requiring the County to cut all ties with the Patrol. Id. The trial court granted her motion and ruled that Patrol could either amend its policy to allow female membership or sever its relationship with the sheriff’s department via specific steps. Id. at 240-41. The trial court denied Sokolow attorney’s fees because she did not receive the primary relief sought of membership in patrol. Id. at 242.

The appellate court reversed, holding that Sokolow was entitled to recover section 1021.5 attorney fees because she received some of the relief sought. Id. at 246. On remand, the trial court had discretion to limit the fee award on the basis of partial success. Id. at 249. It distinguished the current facts from Sundance as a case where the prevailing party pursued unsuccessful legal theories but still obtained all the results it sought. Sokolow could not be said to have achieved all the results sought. Id. at 250. She sought to compel Patrol to admit women into its ranks or to compel the county to eliminate its reliance on Patrol services. Id. at 250. These were important goals which she failed to achieve. Id. Thus, the court remanded for the trial court to evaluate the impact on fees of her limited success. Id.

The question becomes whether the seven arguments discussed in the Decision reflect different legal theories or different requests for relief. CDFW argues that each of the seven arguments represents a different form of relief. Opp. at 16. Petitioners argued that the project description's reference to “restoration” was misleading, the FEIR did not include a vegetation map, and it failed to consider a reasonable range of alternatives by excluding a freshwater alternative. Decision, p. 20. Although the Decision compelled CDFW to set aside any Project approvals and prepare a legally adequate EIR for the Project if it chooses to proceed (Decision, p. 66), it did not order CDFW to change any of those things when it does. Opp. at 16. The two arguments that did prevail were not even part of Grassroots’ petition. Id.

Grassroots correctly points out that its principal requested relief was a writ of mandate compelling CDFW to set aside certification of the Project’s FEIR and vacate related approvals. Reply at 9. The Decision grants this relief and requires the CDFW to prepare and certify a legally adequate EIR for the Project based on the Decision’s findings. Decision, p. 66. Grassroots argues that, in doing so, CDFW will have to reanalyze and reconsider the Project as a whole and respond to new public comments on it. This includes the issues on which the Decision rules against the petitioners. Reply at 9.

This argument is overstated. The court agrees that Grassroots’ principal goal was to have the Project approvals and FEIR set aside. Yet, another important goal for Grassroots was to show that the project description in the FEIR was inaccurate and misleading insofar as it discussed “restoration” but would remove existing freshwater wetlands and replace it with a non-naturally occurring full tidal estuarine environment. Grassroots also admits that it appealed the Decision because it was concerned that certain issues, such as whether project goals can preclude consideration of a freshwater alternative, would otherwise become precedent in administrative or judicial proceedings. Cardiff Decl., ¶27. Grassroots lost on these issues and it fails to support its position that CDFW will have to readdress them in any subsequent EIR.

In sum, Grassroots achieved its principal goal of setting aside the FEIR and Project approvals, but it did not succeed on all of its significant goals. This partial success does not favor a multiplier.

It is undisputed that the burden of a multiplier would ultimately fall on the taxpayers. There is no evidence that Grassroots’ attorney received public and charitable funding for the purpose of bringing lawsuits of the character involved or that the moneys awarded would inure not to the benefit of Grassroots and not Cardiff. These factors disfavor a multiplier.

The request for a multiplier is denied. The request for a negative multiplier also is denied.

Grassroots’ motion for attorney fees is granted in the amount of The total fees are $145,772.50.

[1] CDFW correctly asserts that less experienced lawyers with lower rates could have performed a significant portion of the work Cardiff performed and therefore his rate should be reduced. Save Our Uniquely Rural Community Environment v. County of San Bernardino, (“SOURCE”) (2015) 235 Cal. App. 4th 1179, 1186-87 (run of the mill fees need not be awarded where motion fails to show that hours were reasonable and necessary). Opp. at 10. This is an issue better addressed in reducing Cardiff’s billed hours.

[2] Cardiff spent 30.7 hours to review the record, FEIR, and other evidence. Cardiff Decl., ¶29, Ex. 3, pp. 4, 19-20, 23, 28. As an example, Cardiff describes the search for Corps requirements that prevent burrowing animals from living on the levees. Cardiff Decl., ¶22. To find this, Cardiff had to locate a draft Operation and Maintenance Plan that the AR’s index only identified as part of the “project description.” Cardiff Decl., ¶22. The Operation and Maintenance Plan cited the Guidelines, which Cardiff had to find online. Cardiff Decl., ¶22. These Guidelines are what require and describe the removal of various burrowing animals on “earthen dams” like levees. Cardiff Decl., ¶22. An outdated copy of the Guidelines was also in the AR, but it would not have been available to any members of the public who wanted to comment on the EIR. Cardiff Decl., ¶22.

CDFW argues that this process should have been straightforward. Opp. at 8. Longcore cited the Corps during the public comment period. Id. Cardiff also could have just searched the administrative record’s index for the word “guidelines” and found the document within minutes. Opp. at 8, n. 1. After Cardiff found the applicable Guidelines, the court granted judicial notice thereof without any objection from CDFW. Opp. at 8-9.

The court need not address this argument in detail. Longcore’s citation to the Corps did not inform Cardiff what part of Corps standards was relevant. Cardiff still had to find them in the Draft Operations and Maintenance Plan, which the administrative record index does not list. Reply at 4. This effort was reasonable.