Judge: Mary H. Strobel, Case: 20STCV30918, Date: 2022-08-02 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 20STCV30918    Hearing Date: August 2, 2022    Dept: 82

            Intervenors Southwest Voter Registration Education Project (“SVREP”), Vera Robles Dewitt, Falea’Ana Meni, and Osmond Buendia (“Intervenors”) move for an award of attorney’s fees pursuant to CCP section 1021.5 against Petitioner Jaime G. Monteclaro (“Petitioner”) in the amount of $143,841. 

Relevant Background and Procedural History

On September 11, 2019, the Southwest Voter Registration Education Project (“SVREP”) filed a lawsuit against the City of Carson (“City”) alleging that the City was in violation of the California Voting Rights Act, Elections Code §§ 14025 et seq., because it elected City Council members through at-large, rather than district-based, elections. LASC Case No. 19STCV32291 (“SVREP case”). (Shenkman Decl. ¶ 9.) During the pendency of the SVREP case, the City adopted an ordinance changing its City Council elections to district-based elections (the “Ordinance”).  (Id. ¶ 10.) 

            On August 17, 2020, Petitioner, an attorney and resident of City, filed the original petition for writ of mandate.  On September 2, 2020, Petitioner filed the operative first amended petition for writ of mandate (“FAP”) pursuant to CCP section 1085 against Respondents.

On August 27, 2020, and September 9, 2020, the court denied Petitioner’s ex parte applications for a TRO or preliminary injunction. 

            On September 17, 2020, Respondents City of Carson (“City”), Mayor Albert Robles, Mayor Pre-Tempore James Dear, the City Council of Carson, and the City Clerk (“Respondents”) filed an answer.

            On October 29, 2020, Real Parties in Interest Dean Logan, County Registrar, and Alex Olvera (“Real Parties”) filed an answer. 

On October 29, 2020, the City and SVREP settled the SVREP case. The settlement, among other things, required that all further elections for the Carson City Council to be district-based elections.  (Shenkman Decl. ¶ 12.)

            On or about November 23, 2020, Intervenors filed and served a motion to intervene and proposed answer in intervention.   Petitioner opposed the motion.  On April 20, 2021, the court granted the motion.  The court’s ruling on the motion to intervene is not repeated here, but is incorporated by reference and discussed further below.

            On June 10, 2021, Intervenors filed an answer in intervention.

            On December 20, 2021, Petitioner filed his opening brief in support of the writ petition.  The opening brief exceeded the applicable page limits of 15 pages by about 5 pages.  (See CRC Rule 3.1113(d); Local Rule 3.231(i).)  Petitioner did not obtain court authorization to file an over-sized brief. 

The court received the opposition briefs of Respondents, Real Parties, and Intervenors and Petitioner’s replies prior to the hearing on the writ petition.

On February 23, 2022, the day before the hearing on the writ petition, Petitioner filed a request for dismissal with prejudice of the entire action.  The court entered the dismissal.  As a result, the court did not rule on the merits of the writ petition on February 24, 2022.

On April 21, 2022, Intervenors filed the instant motion for fees.  The court has received Petitioner’s opposition and Intervenors’ reply.

Over-Sized Opposition Brief

            The opposition brief filed by Petitioner on July 18, 2022, is about 31 pages, substantially exceeding the page limit of 15 pages.[1]  (See CRC Rule 3.1113(d).)  Petitioner did not obtain leave of court to file an over-sized brief.  Intervenors object and request that the court disregard the entire opposition.  (Reply 1, fn. 1.) 

The court has broad discretion to refuse to consider a brief that exceeds the page limits stated in the Rules of Court.  (CRC Rule 3.1300(d) and Rule 3.1113(b); see also Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) 

Here, the opposition brief is about twice the allowed length.  This was not a minor exceedance.  Petitioner, who is an attorney, has provided no justification for this violation of the Rules of Court.  The court notes that Petitioner filed an over-sized opening brief in support of the petition on December 30, 2021, also without leave of court.  In addition, on April 15, 2021, Petitioner filed an unauthorized sur-reply to Intervenors’ motion to intervene, which the court disregarded as an unauthorized filing.  (Minute Order dated 4/20/21 at 2.)  In the circumstances, the court exercises its discretion to disregard and refuse to consider pages 4 to 14, line 9 of Petitioner’s opposition to the motion for fees.  The court will consider the remainder of the opposition brief, including the “Arguments” set forth at page 14, line10 to 33.  

Analysis

An award of attorney fees is appropriate “to a successful party … in any action which has resulted in the enforcement of an important right affecting the public interest.”  (CCP § 1021.5.)  The three factors necessary to support an award of attorney fees to a successful party pursuant to section 1021.5 are: “(1) [the] 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.” (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)  

Successful Party

            “When it comes to section 1021.5, the successful party is ‘the party to litigation that achieves its objectives.’”  (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1157.) 

Here, Intervenors obtained their litigation objective when Petitioner dismissed the entire petition, with prejudice, on the eve of trial.  “A dismissal with prejudice is tantamount to a judgment and a final disposition of the case.”  (On-Line Power, Inc. v. Mazur (2007) 149 Cal.App.4th 1079, 1085.)  Intervenors are successful parties under section 1021.5. 

Furthermore, as successful parties, Intervenors are vested with the same “procedural rights and remedies of the original parties” and therefore are entitled to fees if the requirements of section 1021.5 are met.  (See City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 87.) 

Petitioner’s opposition includes an argument section stating that Intervenors are not the successful parties under CCP section 1021.5.  But Petitioner provides no legal analysis.  (Oppo. 20-21.)  The argument fails.  (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”]; Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [argument waived if not raised or adequately briefed].) 

Enforcement of Important Right Affecting the Public Interest

            “The first prong of the section 1021.5 test … requires a determination of ‘the ‘strength’ or ‘societal importance’ of the right involved. That right may be constitutional or statutory, but it must be ‘an important right affecting the public interest’—it ‘cannot involve trivial or peripheral public policies.’ Where, as here, the right vindicated is conferred by statute, ‘courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals.’”  (Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1148.)

            Intervenors contend that their defense of this action enforced an important right affecting the public interest in the California Constitution, Article II and the California Voting Rights Act (“CVRA”).  (Mot. 6.)  Specifically, Intervenors contend that “[t]he Legislature has specifically recognized that at-large elections … may impair those constitutionally guaranteed voting rights,” and Intervenors successfully defeated Petitioner’s attempt to revert to at-large elections in the City.  (Ibid.)  Intervenor’s briefing on this point is terse.

Petitioner argues he did not seek to have Carson’s elections reverted to at-large.  That argument is belied by the prayer of the Petition and Amended Petition, which sought repeal of the ordinance establishing district elections.  Clearly, at least as to the election at issue when the petition was filed, Petitioner sought an at-large election.  Further Petitioner appears to argue that his challenge was only to the procedure by which the City Council adopted the ordinance effectuating district elections. While in part a procedural challenge, at stake was an important public right – voting rights of the citizens of Carson.

Significant Public Benefit Conferred on General Public or a Large Class of Persons

To obtain an award under Code of Civil Procedure section 1021.5, a party must also show that its action conferred a significant public benefit on the general public or on a large class of persons.  A significant benefit may be pecuniary or non-pecuniary and need not be concrete to support a fee award.  (Braude v. Automobile Club of Southern California (1986) 178 Cal.App.3d 994, 1013.)

“The trial court determines the significance of the benefit, and the group receiving it, ‘from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.  The courts are not required to narrowly construe the significant benefit factor. ‘The ‘extent of the public benefit need not be great to justify an attorney fee[s] award.’ And fees may not be denied merely because the primary effect of the litigation was to benefit the individual rather than the public.”  (Indio Police Command Unit Association v. City of Indio (2014) 230 Cal.App.4th 521, 543; see also Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939-940.) 

“[M]ere vindication of a statutory violation is not sufficient to be considered a substantial benefit by itself.”  (Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 335.)  However, “[t]he ‘extent of the public benefit’ from the lawsuit must be ‘substantial,’ but ‘need not be great.’”  (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1158.)  “Where, as here, the nonpecuniary benefit to the public is the proper enforcement of the law, …. the significant benefit and important right requirements of section 1021.5 to some extent dovetail.”  (Ibid.) 

Intervenors contend that “[h]ad Monteclaro prevailed, the votes of the Latino and Filipino citizens of Carson would have once again been diluted through unlawful at-large elections.”  (Mot. 7.)  “And, even more devastatingly, because Monteclaro argued that city charters supersede the Legislature’s delegation of authority to city councils through Government Code section 34886, his writ petition threatened the voting rights of minority voters in the many charter cities throughout California.”  (Ibid.) 

In the petition, Petitioner sought a writ of mandate directing Respondents to repeal the Ordinance.   Petitioner alleged that City’s adoption of the Ordinance violates various laws, specifically Election Code section 10010; City Charter sections 111 and 301; the California Voters Rights Act (“CVRA”); and the 14^th Amendment of the U.S. Constitution.  (FAP 9-14.)  In the opening writ brief filed December 30, 2021, Petitioner did not pursue these legal theories but instead asserted that the Ordinance does not comply with Government Code section 34886 because the declaration required by that statute, while made by City Council, is “devoid of facts.”   (See Oppo. filed 12/30/21, which the court judicially notices.)  While Petitioner proceeded on a narrower issue when filing his opening brief, there is nothing in the record that would show that Respondent or Intervenors could have anticipated this change in tactic. 

Realistically assessing the benefit of this action, in light of all pertinent circumstances, the court finds that this action did confer a significant benefit on the public or a large class of persons.  In assessing whether a benefit was conferred by the action, the court considers the scope of relief that realistically could have been granted to Petitioner if he had pursued the case through trial.  If Petitioner had prevailed, at least one election would have proceeded as at large rather than by district.  Further, even on the narrow basis ultimately asserted by Petitioner, his theory would have imposed additional evidentiary requirements impeding a City’s ability to adopt district-wide elections without the potentially costly development of an evidentiary record regarding vole dilution.  This in turn would affect all voting members of Carson and future cities pursuing district elections through Government Code section 34886.

Under the circumstances of this case, the court concludes the “action” resulted in a significant benefit to the public or a large class of persons. 

Necessity and Financial Burden of Private Enforcement

The necessity and financial burden requirement “‘examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party's attorneys.’”  (Lyons v. Chinese Hosp. Ass'n (2006) 136 Cal.App.4th 1331, 1348.) 

Here, at least when the motion to intervene was decided, private enforcement was necessary because it appeared that City would not oppose Petitioner’s action.  The court reached this conclusion in its ruling on the motion to intervene:

Proposed Intervenors also show that their interests are not adequately represented by existing parties. In his declaration, Proposed Intervenor’s counsel declares: “In response to [Petitioner’s] many ex parte applications and motions in this case and the CVRA Case, the City has largely taken a ‘neutral’ approach, neither supporting nor opposing the relief [Petitioner] has sought.” (Shenkman Decl. ¶ 7.) The court notes that City has not opposed the instant motion. City also did not file a substantive response to Petitioner’s ex parte application for a preliminary injunction, filed August 27, 2020. (See Court File.) The response stated: “We have been instructed by the City Council of the City of Carson not to oppose or otherwise interfere with Mr. Monteclaro’s efforts to present his issue regarding the change to district elections to the Court.” (See Response filed 8/27/20.) Given this evidence and the lack of opposition from City, the court concludes that Proposed Intervenors’ interests are not adequately represented.  (Minute Order dated 4/20/21 at 5.)

With respect to financial burden, a litigant’s nonpecuniary interests do not affect its eligibility for section 1021.5 fees.  (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1217.)  “An award on the ‘private attorney general’ theory is appropriate when the cost of the claimant’s legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff ‘out of proportion to his individual stake in the matter.’”  (Woodland Hills Residents’ Ass’n, Inc. (1979) 23 Cal.3d 917, 941; see also Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 154.)  

Here, Intervenors never had any prospect of any monetary award in this case.  Their nonpecuniary interests are irrelevant.  The financial burden requirement is met because, at all times, the legal costs to Intervenors transcended their reasonably expected financial interest in the case. 

Based on the foregoing, Intervenors satisfy all requirements of CCP section 1021.5 and are not entitled to attorney’s fees. 

Reasonable Attorney’s Fees

“The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’  [T]he lodestar is the basic fee for comparable legal services in the community….”  (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4^th 140, 154.) 

Generally, the reasonable hourly rate used for the lodestar calculation is the rate prevailing in the community for similar work.  (Center for Biological Diversity v. County of San Bernardino, (2010) 188 Cal.App.4th 603, 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., (2016) 6 Cal.App.5th 426, 437.) 

            Reasonable Hourly Rates

            Intervenors request hourly rates of $815/hour for attorney Kevin Shenkman, $740/hour for attorney Mary Hughes, and $615/hour for attorney Andrea Alarcon.  (Mot. 12.)  Intervenors submit evidence that these hourly rates are reasonable in the community for similar work.  (Shenkman Decl. ¶¶ 19-23.)  Petitioner has made no argument to the contrary.  The court finds that these hourly rates are reasonable for this type of legal action. 

Reasonable Number of Hours

            Intervenors request 89.4 hours for attorney Shenkman, 66 hours for attorney Hughes, and 36 hours for attorney Alarcon.  (Mot. 12.)  Thus, Intervenors request an award for 191.4 hours of attorney work. Intervenors submit billing records to show the legal work performed by these attorneys, and Shenkman provides an overview of the work in his declaration.  (Shenkman Decl. ¶¶ 9-16.)  The requested hours reflect work on the motion to intervene and a reply for that motion; an opposition brief for the trial on the writ petition; this motion for fees; and other matters.  (Id. Exh. B.) 

“The verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.”  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.)  If the motion is supported by evidence, the opposing party must respond with specific evidence showing that the fees are unreasonable.  (Premier Med. Mgmt. Sys. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4^th 550, 560-63.)  The court has discretion to reduce fees that result from inefficient or duplicative use of time.  (Horsford at 395.) 

Here, the motion for fees is supported by evidence of the number of hours worked by Intervenors’ attorneys.  In opposition, Petitioner does not identify any specific billing items that he believes are reasonable.  (See Oppo. 31-33.)  However, Petitioner does argue that “the amount of fees and costs sought is not reasonable considering the simplicity of the primary issue i.e., the interpretation and intent of the declaration requirement under the Government Code.”  (Ibid.)  Petitioner further argues that Intervenors’ briefing for the writ petition substantially overlapped with the briefing filed by Respondents.  (Ibid.) 

A trial court may “consider the relative contributions of multiple private attorneys general when it exercises its discretion to determine the proper amount of an attorneys' fee award.”  (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 88.)  “[T]o the extent … the intervenor seek to recover fees for time spent that was superfluous to the results achieved by the litigation, or duplicative of one another's efforts, those factors may properly be used to reduce, or perhaps deny altogether, a particular fee request.”  (Id. at 88.) 

            Here, based on the court’s familiarity with the case, and with the legal work performed by Intervenors’ attorneys, the court finds that the requested lodestar fee of $143,841 is excessive.  The issues presented were not particularly novel or complex. Intervenors staffed the matter with three attorneys with the attorney whose billing rate was the highest doing almost half the work.  Intervenors do not present any evidence that they coordinated with Respondents or Real Parties to ensure they did not duplicate efforts in opposing Petitioner’s opening writ brief.   On the merits, Intervenors’ legal briefing largely overlapped with that provided by Respondents and Real Parties.  In these circumstances, the court substantially reduces Intervenors’ lodestar fee to $65,000. The court finds this fully compensates Intervenors for all hours reasonably spent.  Intervenors do not seek a multiplier and the court also finds that a multiplier is not warranted.  (Mot. 13-14.)

            The motion for fees is granted in the reduced amount of $65,000. 

Conclusion

            The motion for fees is GRANTED in the reduced amount of $65,000.