Judge: Michael L. Stern, Case: 30, Date: 2024-01-23 Tentative Ruling

Case Number: 30-2015-00801675    Hearing Date: January 23, 2024    Dept: 62

Hearing Date:             January 23, 2024        

Moving Parties:          Plaintiff The Kennedy Commission   

Responding Party:      None.

Motion for Attorney Fees

            The court considered the moving papers.

RULING

            Plaintiff The Kennedy Commission’s Motion for Attorney Fees is GRANTED in amount of $418,560.00.

BACKGROUND

            On July 31, 2015, Plaintiff filed a Complaint against Defendants for violation of California’s Housing Element Law, Government Code section 65580 et seq. for passage of a general plan and subsequent amendment thereto that Plaintiff alleged failed to comply with the state’s requirement of affordable housing by not meeting and by reducing the number of housing units that could be developed in the City.

            Plaintiff also filed a Writ of Mandate for an order ceasing enforcement, administration and implementation of the amendment to Defendants’ specific plan. The trial court granted the writ. On appeal, the District Court of Appeal reversed the trial court’s order, agreeing with the Defendants that amendment of its housing element to comply with the governing Government Code sections was possible, which meant leaving the specific plan in place while allowing Defendants more time to amend its housing element. (The Kennedy Commission v. City of Huntington Beach (2017) 16 Cal.App.5th 841.) The case was remanded back to the trial court for resolution of the remaining causes of action alleged in Plaintiff’s complaint.

            On January 8, 2021, Plaintiff filed a Motion for Attorney Fees. Defendants filed an opposition on February 22, 2021. Plaintiff filed a reply on March 22, 2021. On July 8, 2021, this Court granted the motion and awarded Plaintiff $3,531,201.10 in attorney fees. (Min. Order 7/8/2021.) Defendants filed a Notice of Appeal on August 23, 2021. On appeal, the District Court of Appeal affirmed the trial court’s order, agreeing that Plaintiff was a successful party under the catalyst theory and finding the trial court did not abuse its discretion by applying the 1.4 multiplier. (Appeal – Remittitur 7/20/2023.) The District Court of Appeal also awarded Plaintiff costs on appeal. (Id.)

            On August 28, 2023, Plaintiff filed this instant Motion for Attorneys’ Fees pursuant to California Code of Civil Procedure section 1021.5. Defendants opposition was due on January 10, 2024. As of January 17, 2024, no opposition has been filed.

LEGAL AUTHORITY

Code of Civil Procedure section 1021.5, states in pertinent part: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, 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, if any.” (Code Civ. Proc., § 1021.5.) 

DISCUSSION

Request for Judicial Notice

            Plaintiff requests judicial notice of (1) The Kennedy Commission v. City of Huntington Beach et al., Case No. E077888 [Exh. 1]; (2) The Kennedy Commission v. City of Huntington Beach et al., Case No. E078403 [Exh. 2]; (3) Appellant’s Opening Brief filed on May 4, 2022 in the appeal The Kennedy Commission v. City of Huntington Beach et al. [Exh. 3]; (4) Respondents’ Opposition Brief filed on July 5, 2022 in the appeal The Kennedy Commission v. City of Huntington Beach et al. [Exh. 4]; (5) Appellant’s Motion for Judicial Notice filed on May 5, 2022 in the appeal The Kennedy Commission v. City of Huntington Beach et al. [Exh. 5]; (6) Respondent’s Opposition to the Motion for Judicial Notice file don May 6, 2022 in the appeal The Kennedy Commission v. City of Huntington Beach et al. [Exh. 6]; (7) The Court of Appeal’s Tentative Opinion issued on March 3, 2023 in the appeal The Kennedy Commission v. City of Huntington Beach et al. [Exh. 7]; (8) The Kennedy Commission v. City of Huntington Beach et al., Case No. S280512 [Exh. 8]; (9) Appellant’s Request to Depublish file don June 22, 2023 in The Kennedy Commission v. City of Huntington Beach et al., Case No. S280512 [Exh. 9]; and (10) Respondent’s Opposition to the Request to Depublish filed on June 30, 2023 in The Kennedy Commission v. City of Huntington Beach et al., Case No. S280512 [Exh. 10].

            Plaintiff’s request for judicial notice is GRANTED pursuant to California Evidence Code section 452.

Merits of the Motion

Plaintiff moves for an order awarding attorneys’ fees in the amount of $418,560.00 incurred defending this Court’s 2021 Fee Ruling in this matter against Defendants. Plaintiff argues this present motion is timely pursuant to California Rules of Court, Rule 3.1702(c) and 8.278(c) because the Court of Appeal issued remittitur on July 20, 2023. Plaintiff’s argument is availing because this instant motion was filed and served on August 28, 2023, which is thirty-nine (39) days after the remittitur was issued, thus within the forty (40) days deadline.

Furthermore, Plaintiff argues it is entitled to an award of reasonable attorneys’ fees for fee-related litigation. Plaintiff contends Defendants appealed this Court’s order awarding Plaintiff Code of Civil Procedure section 1021.5 fees, forcing Plaintiff to respond and defendant its fee award. Plaintiff also contends because of its efforts, Plaintiff secured a unanimous published decision affirming its fee award, which the California Supreme Court declined to review.

Moreover, Plaintiff argues the attorneys’ fees incurred defending against Defendants’ appeal were reasonable because (1) Counsel’s hourly rates are reasonable and (2) the hours expended are reasonable. Plaintiff asserts the declarations supporting this present motion demonstrate Plaintiff’s attorneys are requesting reasonable hourly rates based on their respective qualifications and current market rates. (Darmer Decl. ¶¶ 3, 5; Rawson Decl. ¶¶ 1-19, 23-24; Reisman Decl. && 7-34; Walker Decl. ¶¶ 2, 9, 11-16.) Plaintiff further asserts the rates for Jones Day reflect the actual rates charged to paying clients. (Darmer Decl. ¶ 6.) Additionally, Plaintiff contends the rates requested in this instant motion are similar to the rates this Court awarded in the 2021 Fee Award excluding the slight increase to reflect inflationary increases and increased experience levels of the attorneys. (Reisman Decl. ¶ 13, Exh. 15.)

            Plaintiff also argues the submitted declarations and billing statements demonstrate a reasonable numbers of hours were expended on the appeal. In addition, Plaintiff contends its attorneys have exercised substantial billing discretion by cutting hundreds of hours worked by all paralegals, legal fellows, research librarians; administrative tasks; co-counsel strategy calls from non-primary attorneys; and organization request for fees for non-primary attorneys from the lodestar calculation to account for potential duplication of efforts. Lastly, Plaintiff asserts its attorneys performed the following tasks that formed the basis for its lodestar calculation: (1) researching and drafting the Response Brief; (2) researching and drafting the Opposition to the Motion for Judicial Notice; (3) preparing and presenting oral argument; (4) filing an MTA to correct the record; (5) filing a stipulated motion to consolidate Defendants multiple appeals; (6) responding to Defendants petitions to the California Supreme Court for review and depublication; and (7) drafting the instant fee motion. (Darmer Decl. ¶ 4; Rawson Decl. ¶¶ 21-22; Reisman Decl. ¶¶ 36-47; Walker Decl. ¶¶ 2, 5.)

            In Serrano v. Unruh (1982) 32 Cal.3d 621, the court held “absent circumstances rendering the award unjust, fees recoverable under section 1021.5 ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 639.)

            The Court finds that Plaintiff is entitled to recover attorneys’ fees under Code of Civil Procedure section 1021.5 because Plaintiff incurred attorneys’ fees for defending against Defendants’ multiple appeals of its 2021 Court ordered Fee Award and the District Court of Appeal awarded Plaintiff costs incurred on appeal. Furthermore, the attorneys’ fees requested are reasonable. Under the lodestar approach commonly used by courts in calculating attorneys’ fees, Plaintiff request is $418,560.00. The legal work set forth in the supporting declarations and attached billing statements were reasonable for the hours expended in a lengthy appellate matter, apportioned to the experience level of the primary attorneys, and accounted for the inflation in legal industry.

            Accordingly, Plaintiff’s Motion for Attorneys’ Fees is GRANTED in the amount of $418,560.00.

            Moving party is ordered to give notice of ruling.