Judge James C. Chalfant, Case Number: 23STCP03011, Date: 2025-01-07 Tentative Ruling

Real Party-in-Interest Craig Jablin (“Real Party” or “Jablin”) moves for an award of $9,602.25 in attorney fees from Petitioner Cynthia Mabus (“Mabus”).

The court has read and considered the moving papers, opposition,[1] and reply, and renders the following tentative decision.

On August 18, 2023, Petitioner Mabus filed the Petition alleging a cause of action for administrative mandamus against the City. The operative pleading is the First Amended Petition (“FAP”) filed on January 16, 2024 and alleging in pertinent part as follows.

Petitioner Mabus owns the property located at 10729/10731 Northgate Street, Culver City (the “Property”). FAP, ¶6. Two trees located on public property directly adjacent to the Property are known problem species trees and are too large for the area in which they are located. FAP, ¶7. These problem trees have caused substantial damage to Petitioner’s improvement on the Property, the Property itself, and public property. FAP, ¶7.

On October 1, 2019, Petitioner filed a request for a parkway tree removal of the two trees (the “Request”) with the Culver City Public Works Department-Maintenance Operations Division (“Public Works”) pursuant to Culver City Municipal Code (“CCMC”) section 9.08.210.B. FAP, ¶8. Tree removal is required under CCMC section 9.08.210.c.2.b.-.c if a tree meets either of the following conditions: (1) the tree roots are creating extensive and repeated damage to public and/or private infrastructure, including sidewalks, sewer lines or other utility lines, but a history of sewer blockages does not alone provide sufficient reason for tree removal and rather suggests the need for sewer repair and/or (2) the tree is creating a public or private nuisance. FAP, ¶8.

After an arborist inspected the two trees, Public Works determined that both trees exhibit potential for major branch failure and need to be removed. FAP, ¶10. On February 25, 2020, Public Works provided notice to the public pursuant to CCMC section 9.08.21.E that Petitioner’s Request to remove the trees had been granted. FAP, ¶11.

Pursuant to CCMC section 9.08.210(F), any party wishing to reverse a decision by Public Works must submit an appeal in writing. Pursuant to that same section, “[a]ppeals shall be heard by the City Council, which shall affirm the decision of the Public Works Director, unless the appellant demonstrates, by substantial evidence, that the decision is based on error in fact or dispute findings. The decision of the appeal shall be final.” FAP, ¶12.

On March 2, 2020, City resident Jablin appealed the Public Works decision to remove the two trees. FAP, ¶13. Jablin admitted in his written appeal that the two trees “over many years, have caused damage to the road surface and the sidewalk and meet the criteria in the City code for potential removal.” FAP, ¶14.

On August 10, 2020, the City Council held the initial hearing on Jablin’s appeal. FAP, ¶15. The City Council voted to delay the appeal to allow for potential resolution to be worked on by the City, Jablin, and Petitioner. FAP, ¶15.

On October 11, 2021, the City Council again held the hearing on Jablin’s appeal of the Public Work’s decision to remove the trees. FAP, ¶16. At the hearing, neither Jablin nor any other party provided any substantial evidence or testimony showing that Public Work’s decision to remove the trees was based on error in fact or disputed findings. FAP, ¶17. On October 11, 2021, despite the lack of any evidence that would support reversal of the Public Works decision to remove the trees, the City Council voted to grant Jablin’s appeal. FAP, ¶18.

Petitioner filed a mandamus petition from the City Council’s decision to grant Jablin’s appeal and reverse the decision of Public Works to remove the two trees. FAP, ¶20. The mandamus petition was granted and judgment was rendered in Petitioner’s favor on March 15, 2023. FAP, ¶20.

In response to the writ, on May 22, 2023, the City Council held a public hearing and adopted Resolution No. 2023-R033 (the “Resolution”) setting aside the October 11, 2021 decision reversing the Public Works’ decision to remove the trees. FAP, ¶21.

Petitioner maintains that the Resolution is erroneous and improper in that the City Council prepared and considered new and additional evidence in coming to its conclusions. FAP, ¶22. The Resolution does not conform to, and is in violation of, the judgment in Mabus I. FAP, ¶23. The Property and Petitioner have been harmed by the trees and will continue to be harmed.

Petitioner filed the Petition on August 18, 2023. Petitioner served Respondents City and City Council on August 23, 2023.

The Petition did not name Jablin as a Real Party. The court held trial setting conferences on November 27, December 14, and January 9, 2024, and ordered Petitioner to name Jablin as a Real Party.

On January 16, 2024, Petitioner filed the FAP naming Jablin as Real Party. Petitioner served Jablin with the FAP on January 21, 2024.

On March 12, 2024, the City filed its Answer to the FAP. On March 15, 2024, Jablin filed his Answer to the FAP.

On July 3, 2024, the court denied Petitioner’s ex parte application to exceed the page limits of CRC 3.1113(d).

“[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc., (2007) 147 Cal.App.4th 424, 429.

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 where it has been established that (1) plaintiff’s action has resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate. Conservatorship of Whitley, (2010) 50 Cal.4th 1206, 1214. The burden is on the party requesting section 1021.5 fees to demonstrate all elements of the statute, including that the litigation costs, transcend his or her personal interest. Millview County Water Dist. v. State Water Resources Control Bd., (2016) 4 Cal.App.5th 759, 769. The issue is committed to the trial court’s discretion. Ibid.

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 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, (“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, (“Maria P.”) (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (2004) 34 Cal.4th 604, 610. Prevailing counsel who qualify for an award under section 1021.5 are entitled to compensation for all hours reasonably spent. 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 939-40.

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, (2005) 131 Cal.App.4th 173, 181. The party seeking attorney fees bears the burden of establishing that its litigation costs transcend its personal interests. Save Open Space Santa Monica Mountains v. Superior Court, (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, (2000) 79 Cal.App.4th 505, 515.

The prevailing party 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. 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.’” Center For Biological Diversity v. County of San Bernardino, (2010) 188 Cal.App.4th 603, 619 (citations omitted).

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.

Richard W. Davis, Esq. (“Davis”) is the attorney for Real Party Jablin. Davis Decl., ¶1. He has been practicing civil litigation in California since 1992. Davis Decl., ¶4. Davis billed his time to Jablin at a discounted hourly rate of $295.00. Davis Decl., ¶4.

To date, Davis has expended 19.7 hours in connection with the litigation and the fee motion. Davis Decl., ¶5, Ex. C. The invoices reflect 18.2 hours of attorney time expended in the proceeding. Davis Decl., ¶5, Ex. C. Based on a discounted hourly rate of $295.00, the total attorneys’ fees incurred to date by Jablin in the litigation total $5,811.50. Davis Decl., ¶5, Ex. C.

Davis anticipates spending at least two additional hours reviewing any opposition to the fee motion, drafting a reply, and attending a hearing on the motion. Davis Decl., ¶6. Therefore, he expects Jablin to incur additional attorneys’ fees of at least $590.00. Davis Decl., ¶6.

Davis is aware that Mabus’ fee motion in Mabus I sought a 1.5 multiplier to her attorneys’ hourly rates given the complexity of the issues raised. Davis Decl., ¶7. Davis is also informed and believes that he has been practicing approximately six years longer than Petitioner’s most senior counsel, Peter Sunukjian, Esq. Davis Decl., ¶7.

After applying a 1.5 multiplier to Davis’ rates, the total attorneys’ fees incurred to date in this proceeding total $8,717.25. Davis Decl., ¶8. After applying a 1.5 multiplier to the additional two hours Davis expects to bill in connection with drafting a reply and attending a hearing on the fee motion, the total future attorneys’ fees total $885.00. Davis Decl., ¶8. The total fees sought are $9,602.25. Davis Decl., ¶8.

On November 4, 2024, Petitioner Mabus’ counsel, Jeffrey Weber, Esq. (“Weber”), was served via email with Real Party Jablin’s motion for attorney fees. Weber Decl., ¶2. The hearing was scheduled for January 7, 2025. Weber Decl., ¶2. Due to a calendaring mistake, Weber inadvertently calendared the opposition to be filed by no later than December 27, 2024. Weber Decl., ¶3. It was not until he was about to file the opposition that he realized he had mis-calendared the date the opposition was due. Weber Decl., ¶3. Due to Weber’s mistake, the opposition was filed two days late. Weber Decl., ¶4.

Real Party Jablin moves for an award of $9,602.25 in attorney fees from Petitioner Mabus. The court has no difficulty with Jablin’s requested lodestar or total fee request. However, he does not show entitlement to a fee award.

Jablin correctly notes (Mot. at 6-7) that section 1021.5 attorney fees are available not only to the party who initiates litigation but also to respondents and real parties-in-interest who successfully defend such litigation. Refusing a fee award to a real party who satisfies the requirements of section 1021.5 would have a chilling effect on citizens’ willingness to advocate for the public interest. Hull v. Rossi, (1993) 13 Cal.App.4^th 1763, 1769.

The threshold issue is whether Jablin was actually a real party who could be entitled to attorney fees. The court ordered Mabus to add Jablin as a real party. Mabus untimely named Jablin as a Respondent or Real Party on January 16, 2024. At trial, Mabus argued that there was a legitimate question whether Jablin is actually a real party-in-interest, defined in a mandate proceeding as a person or entity with an interest that will be directly affected by the proceeding. Rudisill v California Coastal Comm'n, (2019) 35 Cal.App.5th 1062, 1072. Mabus noted that Jablin has no personal interest that will be directly affected by these proceedings. He does not own the trees at issue and does not even live on the block where the trees are located.

Despite this argument, the court found Jablin to be a necessary party within the meaning of CCP section 389(a). He lives near Marcus and the City Council granted his appeal from the former Director’s decision to remove the trees. He claimed an interest relating to the subject of the action and was so situated that the disposition of the action in his absence may have, as a practical matter, impaired or impeded his ability to protect that interest. Jablin was a necessary party, which is why the court ordered Marcus to name him as a Real Party.

However, the court did not find Jablin to be an indispensable party within the meaning of CCP section 389(b). It was true that he filed the administrative appeal, a judgment rendered in his absence might have been prejudicial to him, and the judgment could not be shaped to avoid that prejudice. However, a judgment rendered in Jablin’s absence would be adequate because the City can be relied upon to protect his interests, which are co-extensive. See TG Oceanside, L.P. v. City of Oceanside, supra, 156 Cal.App.4th at 1365-66. As a consequence, the court did not dismiss the FAP for failing to timely name and serve Jablin. Jablin was a necessary, but not indispensable, party for the case.

While real parties may be entitled to attorney fees under section 1021.5, amicus curiae are not. Connerly v. State Personnel Board, (“Connerly”) (2006) 37 Cal.4^th 1169, 1177. In Connerly, the court considered the litigation conduct of a non-profit organization (California Business Council) which filed motions and actively participated in the case. Id. at 1173-74. In deciding whether the non-profit could be liable to the petitioner for attorneys’ fees as an opposing party under section 1021.5, the court noted that the opposing party for purposes of section 1021.5 attorney’s fees generally is the defendant person or agency sued which is responsible for initiating and maintaining actions or polices that are deemed harmful to the public interest and gave rise to the litigation. Id. at 1176-77. The non-profit did not meet this standard. Id. at 1177. Nor was it a real party-in-interest, because a real party is “a person or entity whose interest will be directly affected by the proceeding.” Id. at 1178. A real party may be the person or entity in whose favor the public agency’s policy operates or having a direct interest in the result. Id. The non-profit’s only interest was ideological or policy, which was insufficient. Connerly noted that “no court has held that active participation alone, without a direct interest in litigation, can be grounds for awarding section 1021.5 fees.” Id. at 1181. Despite its participation in the litigation, the non-profit was an amicus curiae not liable for section 1021.5 fees. Id. at 1182-83.

In Vosburg v. County of Fresno, (2020) 54 Cal.App.5^th 439, as part of its analysis that an unincorporated association was a de facto intervenor for purposes of section 1021.5 fee award, the court explained the difference between a successful party under section 1021.5 and amicus curiae. Id. at 457-58. A successful party may be a plaintiff, defendant, or real party-in-interest. Id. at 457. In contrast to a real party, amicus curiae “generally are not entitled to fees under section 1021.5 because they are not parties. Id. at 457-58. Under California law, an intervenor (de facto or de jure) becomes a party with the same procedural rights and remedies as the original parties. Id. at 458. Leave to appear as an amicus curiae is not the full equivalent of intervention. Unlike intervenors, amicus curiae are confined to legal argument, cannot plead or offer evidence, and cannot appeal from an adverse decision. Id. at 462 (citing Witkin).

Jablin was not an amicus curiae because he had the right of full participation in the case. He was a real party-in-interest. Nonetheless, he is not entitled to an attorney fee award under section 1021.5 because he has not shown that he is a successful party. Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham, supra, 34 Cal.4th at 565. A real party is considered “successful” under section 1021.5 if the litigation “contributed substantially to remedying the conditions at which it was directed.” Aakhus, supra, 14 Cal.App.4th at 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., supra, 43 Cal.3d at 1292; see Tipton-Whittingham v. City of Los Angeles, supra, 34 Cal.4th at 610.

Jablin argues that he was a successful party because the Judgment refers to him and the City as the prevailing parties. A successful party under section 1021.5 is synonymous with prevailing party. Graham, supra, 34 Cal.4^th at 571. Mot. at 7; Reply at 3. Since the Judgment refers to him as a prevailing party, Jablin argues that it is a waste of time to address the issue further. He adds that he successfully showed that he was untimely added to the case even though the court did not dismiss the case because he was not indispensable. He disputes Mabus’ contention that he should not be considered a successful party simply because he joined the City’s other arguments. Reply at 4.

The Judgment’s reference to Jablin as a prevailing party is not dispositive. Taking a pragmatic view of the case, the court concludes that Jablin is not a successful party. Jablin points to no substantive issue or argument in his trial brief on which he was successful. The court has reviewed Jablin’s trial brief and he did not make any arguments concerning the legal, Topanga, and substantial evidence arguments on which the City prevailed. He argued only that the Petition was time-barred because he was untimely named, that he was an indispensable party, that Mabus failed to serve him with her opening brief, that Mabus’ claims were moot, and that he joined the City’s arguments on the mierts. Jablin prevailed on none of these arguments with the exception of untimeliness, and that argument did not lead to a remedy because the court found he was not indispensable.

Particularly because he was not indispensable to the case, Jablin’s fee motion is required to show how he contributed to the City’s success in defending its administrative decision not to remove the two trees. A party that is not indispensable still may sufficiently contribute to the defense of a public agency’s decision so as to be entitled to attorney fees. But it is not enough to join the City’s arguments. A joinder is merely a cheerleading effort that adds nothing substantive unless it is accompanied by a memorandum of points and authorities explaining the party’s reasoning. Jablin’s trial brief contains no substantive argument why he joined the City’s position.

[1] Jablin points out that Mabus’ opposition follows a pattern of untimeliness and procedural failure in this case. Reply at 2. Mabus also failed to provide the court with a courtesy copy of her opposition in violation of the Presiding Judge’s First Amended General Order re: Electronic Filing. Jablin argues that the court should not consider the opposition and the court generally has not done so, except to note its existence.

[2] Jablin requests judicial notice of Mabus’ motion for attorney fees in Mabus v. Culver City, et al., (“Mabus I”) LASC 21STCP04028 (Real Party RJN Ex. 1). The request is granted. Evid. Code §452(d).

[3] Jablin contends that he meets the other elements of section 1021.5 and relies on Mabus’ fee motion in Mabus I to argue that she is estopped from denying that fact. Mabus argues that Jablin does not meet these elements, particularly that he did not confer a significant benefit on a parge class of persons or the general public and that the issue did not require private enforcement because the City was capable of defending without Jablin’s support. The court need not decide these issues.