Judge: Mitchell L. Beckloff, Case: 19STCP03681, Date: 2024-03-20 Tentative Ruling

Case Number: 19STCP03681    Hearing Date: March 20, 2024    Dept: 86

FLORES v. DEPARTMENT OF TRANSPORTATION OF THE STATE OF CALIFORNIA

Case Number: 19STCP03681

Hearing Date: March 20, 2024 

[Tentative]       ORDER GRANTING MOTION FOR ATTORNEYS’ FEES  

Petitioners, Angela Flores, Marysia Wojick and Priscela Izquierdo, move for an award of trial and appellate court attorneys’ fees against Respondent, Department of Transportation of the State of California, in the amount of $320,208. Respondent opposes the motion.

Petitioners’ request for judicial notice (RJN) of their exhibits 3, 4, 6, 7, 8, 11, 12 and 13 is granted. (See Exhibit List 3:19-22.) 

Petitioners also include various requests for judicial notice in their motion and reply brief, but they have not submitted copies of the materials for which judicial notice is requested. (See Memo 4:6-7 and Reply 2:14-3:10, 4:16-23.) Those requests are denied. (See Cal. Rules of Court (CRC), Rule 3.1306, subd. (c). [“A party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material.”] See also Evid. Code, § 453.)

Respondent’s RJN of its exhibits A through K is granted. Petitioners’ objection to Exhibits H and K is overruled. (Reply 5:17.)    

Petitioners’ objections to the declarations of Andrea Maehara and Eliza Kegeyan and Respondent’s exhibits 1 and 2 are overruled. (Reply 6-7.) 

ANALYSIS 

“Upon motion, a court may award attorneys’ fees to a successful party . . . 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.) 

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.) “A party seeking an award of section 1021.5 attorney fees must ‘prevail’ or be ‘successful,’ which generally involves obtaining a favorable judicial decision, i.e., a judicially sanctioned or recognized change in the legal relationship of the parties.”  (Marine Forests Society v. California Coastal Com. (2008) 160 Cal.App.4th 867, 877.) 

“ ‘[A] party need not prevail on every claim presented in an action in order to be considered a successful party within the meaning of the section.’ [Citation.] Rather, ‘when a plaintiff is successful within the meaning of the section, the fact that he or she has prevailed on some claims but not on others is a factor to be considered in determining the amount of the fee awarded.’ ” (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 177.) 

Here, the trial court (Judge James Chalfant) denied the petition and entered judgment in favor of Respondent on November 24, 2020. The court concluded “mandamus will not lie to compel [Respondent] to offer the properties to Petitioners at any price other than the inflation adjusted price.” (Resp. RJN Exh. D.)

Petitioners appealed the judgment. “In July 2021, while [the] appeal was pending, the California Legislature amended [Government Code] section 54237.9 by adding a sentence precluding adjustment for inflation.” (Flores v. Dept. of Transp. (2022) 76 Cal.App.5th 678, 680.) The Court of Appeal concluded the then current version of Government Code section 54237.9 applied to Petitioners’ appeal because, in suits for mandamus and injunctive relief, the Court applies the law currently in effect at the time of the appellate decision. (Id. at 682-683.) Accordingly, the Court reversed the judgment and remanded for the trial court to apply the current version of Government Code section 54237.9 in adjudicating the petition. (Id. at 684.)

When remanding the matter to this court for further proceedings, the Court of Appeal stated:

It is unclear whether our holding that the sales price is to be calculated utilizing the revised language in section 54237.9 means the parties will agree on the calculation. It is appropriate for the trial court to consider in the first instance what new calculations are compelled by our decision. Appellants have also requested that we determine attorneys’ fees and costs. We leave that determination and calculation to the trial court as the prevailing party has changed.” (Id. at 684 [emphasis added]; see also Resp. RJN Exh. F.)

In addition, the Court of Appeal awarded Petitioners “their costs on appeal.” (Ibid.) (See Cal. Rules of Court, Rule 8.278, subd. (a)(1), (2) [prevailing party “entitled to costs on appeal”].)

On remand, the parties filed additional legal briefing. The court conducted a hearing on the petition on January 25, issued a traditional writ of mandate and ordered a return on the writ within 90 days. On August 25, 2023, the court entered judgment granting the petition for writ of mandate in favor of Petitioners.[1] The judgment ordered Respondent to “re-calculate the sales price for each property where each petitioner[] resides in compliance with the Roberti Law and applicable regulations, and [Respondent] shall not make any adjustment for inflation in the price calculations.” (Judgment filed 8/25/23 and Resp. RJN Exh. E.) 

Through their petition, Petitioners sought a writ directing Respondent to “re-calculate the sales price in compliance with the Roberti Law and Roberti Regulations and not utilize in any manner an ‘inflation adjusted price.’ ” (SAP Prayer ¶ 7.) Petitioners alleged Respondent’s attempts to impose an “inflation adjusted price” conflicted with the Roberti Law. (Id. ¶¶ 35-58.)  Throughout the petition, Petitioners sought injunctive and writ relief barring Respondent from applying any “inflation adjusted price” formula to the determination of price under the Roberti Law. (See SAP ¶¶ 101-102, 144, 153 and Prayer ¶ 7.) Thus, Petitioners achieved one of their primary litigation objectives in this proceeding—they obtained an order precluding Respondent from imposing an inflation adjusted price on the homes Petitioners sought to purchase from Respondent. 

Despite Petitioners having achieved their litigation goal in this proceeding, Respondents assert “[b]ecause the issue of whether Caltrans could adjust the affordable sales price for inflation was rendered moot by the passage of SB 51, petitioners must establish that their lawsuit was the catalyst that motivated [Respondent] to provide the change in the affordable purchase price under the Roberti Act and that petitioners reasonably attempted to settle the litigation prior to the filing of the lawsuit.” (Opposition 6:21-24.) 

“The ‘catalyst theory’ permits an award of attorney fees even when the litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation. [Citation.] To obtain attorney fees under this theory, a plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense; and (3) the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit.” (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 191 [emphasis added].) 

The court does not agree Petitioners are limited to pursuing their attorneys’ fees through the catalyst theory of Code of Civil Procedure section 1021.5. The Court of Appeal reversed the trial court’s decision and noted Petitioners were the prevailing party. Through their petition, Petitioners specifically sought to enjoin Respondents from applying any “inflation adjusted price” formula to the three properties at issue. Petitioners achieved that objective when the Legislature amended Government Code section 54237.9, the Court of Appeal found it applied to the dispute before it and reversed the trial court’s judgment in favor of Respondents. Further, this court granted the petition in favor of Petitioners on remand. Thus, this proceeding resulted in a “judicial resolution” in favor of Petitioners on a specific claim alleged in the petition. 

The court acknowledges Petitioners may have prevailed at the Court of Appeal and on remand, at least in part, as a result of legislative changes, i.e. the passage of Senate Bill (SB) 51. However, Respondents cite no authority suggesting a petitioner who has obtained a judgment in his/her favor as a result of a legislative change—i.e., “a judicially sanctioned or recognized change in the legal relationship of the parties,” (see Marine Forests Society v. California Coastal Com., supra, 160 Cal.App.4th at 877)—must rely on the catalyst theory to prove a petitioner was a successful party within the meaning of Code of Civil Procedure section 1021.5. The plain language of Code of Civil Procedure section 1021.5 does not preclude a party from being “successful” if the party somehow obtained a favorable judgment as a result of a legislative change.

The passage of SB 51 may be relevant to the court’s consideration of whether this litigation, as opposed to SB 51 or the prior writ petition filed by United Caltrans Tenants (UCT),[2] conferred a substantial benefit on the general public or a large class of persons. However, on this briefing, the court concludes Petitioners are successful parties within the meaning of Code of Civil Procedure section 1021.5 in this proceeding because they prevailed, in part, on their petition for writ of mandate.[3]

Enforcement of Important Right Affecting the Public Interest[4]

“The first prong of the section 1021.5 test . . . 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.)

This action enforced the Roberti Act, Government Code section 54235, et seq., which governs the sale of surplus residential property within the state route 710 corridor. The Roberti Act “is intended to benefit persons and families subject to displacement and persons and families of low or moderate income” and “shall be liberally construed to permit such persons or families to enforce the rights, duties, and benefits created by the article.” (Gov. Code, § 54238.5.) The court concludes this proceeding enforced important rights affecting the public interest as set forth in the Roberti Act. Respondents develop no argument to the contrary. 

Significant Public Benefit Conferred on General Public or a Large Class of Persons[5]

To obtain an award under Code of Civil Procedure section 1021.5, a party must also show 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.)

The court approaches Code of Civil Procedure section 1021.5 in a practical and equitable way: “[U]tilizing its traditional equitable discretion, [the court] must realistically assess the litigation and determine from a practical perspective whether the statutory criteria have been met.”  (Marine Forests Society v. California Coastal Com., supra, 160 Cal.App.4th at 876.)

Here, the judgment and writ directly benefit only Petitioners. However, Petitioners (and Respondents) also argue “[t]his lawsuit was at least part of the rationale for the introduction and passage of SB 51 (State 2021 Ch. 130). Section 4 of the law added 54237.9 to the statu[t]e, banning inflation adjustments.” (Memo 3:20-22.) Relatedly, Petitioners argue “[b]ut for this lawsuit, there would be no public attention to the Caltrans practice, and when the court ruled against petitioners the need for legislation became clear. It was always the intent of the Roberti Law to provide for affordable housing (Govt. Code § 54235 ).” (Memo 1:19-21.)

The legislative history of SB 51 supports Petitioners’ position this writ proceeding conferred a substantial benefit on the public or a large class of persons. Specifically, in 2021, a senate committee staff report for SB 51 states:

Caltrans is currently in the process of amending its ASP regulations related to SR 710 property sales to clarify the minimum sales price of the properties and to address lessons learned during the first phase of sales, in which 42 properties in the corridor were offered for sale in December of 2016. During Phase I, Caltrans set the minimum sales price at the original acquisition price, adjusted for inflation, and was subsequently sued over the inflation adjusted pricing. The initial lawsuit resulted in the Department adopting emergency regulations to implement the inflation adjusted pricing. A subsequent lawsuit promptly challenged the emergency regulations. Caltrans prevailed in that lawsuit in October 2020 and is now in the process of amending the regulations to permanently adopt the inflation adjusted pricing.

This bill would reverse this action by explicitly prohibiting Caltrans from adjusting the original purchase price for inflation when offering surplus properties for sale pursuant to the Roberti Act. . . .

(Sutton Decl. Exh. 3 at pp. 4-5.)[6] 

This statement in the legislative history of SB 51 strongly suggests Petitioners’ writ petition was, at least in part, a motivating factor for the legislature to amend the Roberti Law to prohibit Respondent from adjusting the original purchase price for inflation. Respondent does not cite any legislative history that conflicts with this reasonable inference.

Further, in addition to this statement in the legislative history, the timing of events strongly supports Petitioners’ contention this proceeding and Petitioners’ appeal motivated the Legislature to amend the law. As Respondent acknowledges, Senator Durazo introduced SB 51 on December 7, 2020, about two weeks after the court entered judgment against Petitioners in this proceeding on November 24, 2020. (Resp. RJN Exh. D and Dabney Decl. ¶ 14.)  The Legislature mandated amended Government Code section 54237.9 become effective July 23, 2021, while Petitioners’ appeal was pending. In these circumstances, the court concludes the Legislature amended Government Code section 54237.9, at least in part, in response to this writ petition and the appeal. 

By prohibiting Respondent from using a higher, inflation adjusted price, amended Government Code section 54237.9 confers a substantial benefit on the many persons and families that may be eligible to purchase surplus property under the Roberti Law. Thus, as a practical matter, by successfully litigating this writ proceeding as well as the appeal, Petitioners helped confer a substantial benefit on a large class of persons. Further, because the Roberti Law promotes much needed affordable housing, Petitioners’ litigation also conferred a substantial benefit on the general public. 

Respondent contends: “While this Action was in the middle of litigation, SB 9 and SB 51 were being promulgated after the decision in the UCT v. Caltrans matter. Petitioners have not provided any facts that indicate that their filing of the Action was the catalyst for either SB 9 or SB 51.” (Opposition 7:20-22.) The argument is not persuasive. Petitioners have provided legislative history and a timeline supporting their contention that this proceeding was a catalyst for SB 51. The court issued its decision in UCT v. Caltrans in May 2019, substantially before the Legislature enacted SB 51 in July 2021. The timeline supports the inference that Petitioners’ appeal and this writ proceeding were the more important motivating factors in the legislative change. In any event, even if the UCT v. Caltrans matter was also a motivating factor for the legislative change, the court would still conclude this action conferred a substantial benefit on a large class of persons and the public.[7]

Finally, while not cited by the parties, the court also located authorities supporting a substantial benefit from litigation based on legislative changes. (See e.g., Bjornestad v. Hulse (1991) 229 Cal.App.3d 1568, 1598 [“case law takes a pragmatic approach in defining ‘prevailing’ or ‘successful’ party within the meaning of [Code of Civil Procedure] section 1021.5. . . . The impact might include legislative changes, settlements, or amendments in policy.”]; see also Marine Forests Society v. California Coastal Com., supra, 160 Cal.App.4th at 876-880.)[8] 

For the reasons discussed, the court concludes this proceeding conferred a substantial benefit on the general public and a large class of persons.[9] 

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Necessity and Financial Burden of Private Enforcement[10]

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, private enforcement was necessary as there is no reason to believe a government agency would sue to enforce Petitioners’ claims.

With respect to financial burden, “[a]n 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.) “An attorney fee award under section 1021.5 is proper unless the [successful litigant’s] reasonably expected financial benefits exceed by a substantial margin the [litigant’s] actual litigation costs.” (Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 154.) 

With respect to financial burden, Petitioners argue:

Here, no monetary award or damages were sought. Petitioners are three low income tenants and their counsel is a sole practitioner[]. Petitioners’ reduced sales prices for their homes do not bring them any financial award by which to fund this suit, since no financial recovery was sought.[11] (Memo 5:6-9.) 

The court finds this argument persuasive. Respondent has not opposed this argument and has thereby conceded it. (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”].) 

Even without Respondent’s implied concession, the court also concludes the financial burden requirement of Code of Civil Procedure section 1021.5 is met. There is no persuasive evidence in the record for this motion that Petitioners’ “reasonably expected financial benefits” from challenging Respondent’s use of an inflation adjusted price – both in this writ action and on appeal – “exceed by a substantial margin” Petitioners’ actual litigation costs. 

Based on the foregoing, Petitioners have demonstrated all elements of Code of Civil Procedure section 1021.5 are satisfied here. Accordingly, Petitioners are entitled to an award of reasonable attorneys’ fees for this writ proceeding and the related appeal. 

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Reasonable Attorneys’ 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.4th 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.) 

“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 Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 560-563.) The court has discretion to reduce fees that result from inefficient or duplicative use of time. (Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at 395.) 

Apportionment of fees is not required if fee-bearing and non-fee-bearing claims or legal activities are inextricably intertwined. (See Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 227.) However, “the extent of a party's success is a key factor in determining the reasonable amount of attorney fees to be awarded under section 1021.5. . . .” (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1185 [SOURCE].) “[A] reduced fee award ‘is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole. . . .’ ” (Ibid.)

Finally, “[i]n 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. Failure to raise specific challenges in the trial court forfeits the claim on appeal.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)

Reasonable Hourly Rate

Petitioners request approval of an hourly rate of $400/hour for their attorney and $90/hour for paralegal work. Considering all relevant factors, and based on the court’s familiarity with the legal market and the legal work of Petitioners’ counsel here, the court finds the hourly rates requested by Petitioners’ counsel are reasonable.[12] Respondent makes no argument to the contrary. (Opposition 8:27-28.) 

Reasonable Number of Hours

Petitioners request “compensation for approximately 399 hours that Christopher Sutton’s firm worked on this case from the first time entry in August 2019 through trial, an appeal, Caltrans’ post-appeal tenacious arguments, and up to March 2024, in the ‘lodestar’ amount of $160,104.[]” (Memo 5:26-6:1 [citing Sutton Decl. ¶¶ 2-4 and Exh. 1].) Petitioners also request an additional $14,000 for litigating this fee motion. (Memo 9:3-5 and Sutton Decl. ¶ 3.) The court has thoroughly reviewed Petitioners’ counsel’s declarations and his billing invoice submitted as Exhibit 1. 

Respondents do not challenge the reasonableness of many of the hours claimed by Petitioners’ counsel, including for the appeal. Nor do Respondents argue that Petitioners’ counsel’s work should be apportioned between specific claims or issues. Instead, Respondents argue Petitioners’ counsel inappropriately seeks attorneys’ fees for clerical tasks; some of counsel’s work overlapped with that of his paralegal; and Petitioners’ counsel inefficiently used time to prepare the proposed judgments. The court has reviewed and considered Respondents’ declarations related to the lodestar fee, including the highlighted notations on Exhibit 1 to the declaration of Deputy Attorney Andrea Maehara and the chart attached as Exhibit 2 to the declaration of Senior Legal Analyst Eliza Kegeyan. 

It appears Respondent contends Attorney Sutton’s time should be reduced by 81.1 hours (or $32,440) and paralegal time reduced by 3 hours ($270). Accordingly, Respondent apparently concedes if attorneys’ fees are awarded here, an award of $127,394 would be reasonable. (See Kegeyan Decl. Exh. 2 [final page].)[13] Respondent does not address Petitioners’ counsel’s request for $14,000 as and for attorneys’ fees related to this fee motion.

The court finds many of the objections to fees—that is, Respondent’s request for reductions—well taken.

Of the requests for reductions made by Respondent as to paralegal services, the court finds reductions proposed by Respondent are appropriate in the amount of 1.8 hours (or $162). The court reduces .5 hours (10-29-19) for unnecessary services as duplicative of counsel’s services, .5 hours (1-7-2020) for unnecessary services as duplicative of counsel, .4 hours (1-8-2020) for unnecessary services as duplicative of counsel and .4 hours (1-17-2020) for unnecessary services as duplicative of counsel’s services.

Of the requests for reductions made by Respondent as to attorneys’ fees, the court finds reductions prosed by Respondent are appropriate in the amount of 40.1 hours (or $16,040). The court agrees with the justifications offered by Respondent for reductions. (Kegeyan Decl. Exh. 2.) As a general matter, Petitioners’ counsel has billed for administrative services that are not appropriately billed as attorney services at $400/hour. In addition, some of the time expended by counsel for revisions and further revisions of pleadings is unreasonable given the pleadings and issues raised. The court further finds the time expended for other tasks was unreasonable given the nature of the task and a $400/hour billing rate.

The court agrees with Respondent’s requested reductions of attorney time for the reasons stated (Kegeyan Decl. Exh. 2) except as to the following entries:

10-29-19 (1 hour), 11-13-2019 (2 hours), 12-5-2019 (1 hour), 1-6-2020 (1 hour), 1-7-2020 (1 hour), 1-8-2020 (1 hour), 1-9-2020 (.5 hours), 1-11-2020 (1 hour), 2-3-2020 (1 hour), 2-19-2020 (.2 hours), 9-1-2020 (.2 hours), 10-6-2020 (.3 hours), 10-22-2020 (1 hour), 11-6-2020 (.3 hours), 1-28-21 (1 hour), 2-9-2021 (.3 hours), 12-19-2021 (.2 hours), 12-13-2021 (1 hour), 12-29-2021 (.5 hours), 1-19-2022 (.2 hours), 1-20-2022 (.1 hours), 1-21-2021 (.1 hours), 6-8-2022 (.1 hours), 8-2-2022 (.1 hours), 8-24-2022 (.5 hours), 8-31-2022 (.1 hours), 10-11-2022 (1 hour), 12-9-2022 (2 hours), 12-10-2022 (.1 hours), 1-11-2023 (4 hours), 1-12-2023 (.2 hours), 1-25-2023 (2 hours), 1-30-2023 (.4 hours), 2-10-2023 (.2 hours), 3-3-2023 (.2 hours), 3-2-2023 (1 hour), 3-13-2023 (.1 hours), 3-14-2023 (.2 hours), 3-16-2023 (1.5 hours), 3-24-2023 (.2 hours), 4-6-2023 (.4 hours), 4-10-2023 (1 hour), 4-13-2023 (.3 hours), 4-18-2023 (2 hours), 4-23-2023 (.1 hours), 5-3-2023 (.1 hours), 5-25-2023 (.4 hours), 6-5-2023 (.1 hours), 8-2-2023 (1 hour), 8-15-2023 (.1 hour), 8-25-2023 (.2 hours), 8-26-2023 (1 hour), 8-28-2023 (1 hour), 8-31-2023 (.4 hours), 9-7-2023 (1 hour), 9-8-2023 (1 hour), 9-9-2023 (.5 hours), 9-10-2023 (.5 hours) and 9-11-2023 (.2 hours).

As for the fee motion—the moving and reply papers, preparation for hearing and the hearing—the court finds 20 hours at $400/hour (or $8,000) to be a just and reasonable fee based on the court’s review of the moving and opposition papers. The reasonable hours expended (20) represents two-and-a-half full days of work. The issues related to the fees are not novel or complex; the motion is fairly straightforward.

Based on the court’s review of the record, as well as the court’s familiarity with the legal work of Petitioners’ counsel on this case, the court concludes that Petitioners’ reasonable lodestar fee for the entire writ action and the appeal, including this fee motion, is $143,902 plus $8,000 for the attorneys’ fees motion for a total fee award of $151,902. As discussed, the court has exercised its discretion to impose a modest reduction on Petitioners’ requested lodestar fee as a result of some duplicative and inefficient use of time; in consideration of the fact that Petitioners’ success on appeal and on remand must be attributed, in part, to a legislative change; and because Petitioners admittedly did not prevail on all claims in the petition.

Multiplier

A trial court may adjust the lodestar upward or downward using a multiplier.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Courts look to the following factors, among others, in determining whether a multiplier is appropriate: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing law suits of the character here involved; (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed. . . .”  (See Serrano v. Priest (1977) 20 Cal.3d 25, 48.) 

Petitioners seek a multiplier of 2.0 on the grounds that Petitioners’ counsel litigated the case entirely pro bono and the litigation precluded other employment by Petitioners’ counsel.  Petitioners also highlight the difficulty and novelty of the legal issues and counsel’s skill in presenting them; and the important results achieved as grounds for a multiplier.

The evidence establishes Petitioners’ counsel litigated this writ action and appeal on a pro bono basis. (Sutton Decl. ¶ 9.)[14] Petitioners’ counsel began representing Petitioners in this matter in August 2019, and he has dedicated four years to the writ action and appeal. (Sutton Decl. ¶ 9.)  Petitioners’ counsel also had to decline work from paying clients to undertake this lawsuit. (Sutton Decl. ¶ 6.) For the reasons discussed, Petitioners’ counsel’s efforts and this writ proceeding also helped motivate a legislative change that conferred a substantial benefit on a large class of persons and the general public. These factors weigh in support of granting a positive multiplier. 

However, the court is not persuaded that the difficulty and novelty of the legal issues and counsel’s skill in presenting them weigh for a positive multiplier. Petitioners initially did not prevail at the trial court level and their success on appeal and on remand must be attributed, in large part, to the legislative change discussed above. Further, a fee award against the state would ultimately fall upon the taxpayers. 

Weighing the factors, the court concludes Petitioners are entitled to a multiplier of 1.5 to account for the substantial risks assumed by Petitioners’ counsel in handling the case pro bono; the fact that his representation precluded other employment; and the substantial public benefits conferred. Accordingly, the court awards attorneys’ fee of $215,853 ($143,902 x 1.5) plus $8,000 for this motion for a total fee award of $223,853.

CONCLUSION 

The motion is GRANTED in the reduced amount of $223,853 as and for reasonable attorneys’ fees. 

IT IS SO ORDERED. 

March 20, 2024                                                                                                                

________________________________ 

Hon. Mitchell Beckloff  

Judge of the Superior Court