Judge Monica Bachner, Case 18STCV03781 2022-09-30 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by Court Call for all matters.

Plaintiff’s motion for attorneys’ fees and costs pre-appeal is granted in the total amount of $107,791.50 and post-appeal is granted in the reduced total amount of $4,554.00, totalling $112,345.50.

Plaintiff’s City of Rancho Palos Verdes (“City”) (“Plaintiff”) moves for an order awarding it attorneys’ fees and costs against Defendant Indian Peak Properties, LLC (“Indian Peak”) (“Defendant”) in the total amount of $148,552.50, reflecting Plaintiff’s pre-appeal attorneys’ fees in the amount of $107,791.50 as the prevailing party in this case and an amount of $36,207.00 in attorneys’ fees to respond to the appeal of this case, as the prevailing party in both the trial court and appellate proceedings, and $4,554.00 in attorneys’ fees for preparing and pursuing the instant motion. (Motion, pgs. 1-2.)

Indian Peak’s 5/26/22 evidentiary objections to the declaration of Plaintiff’s counsel Glen E. Tucker (“Tucker”) are overruled as to Nos. 1, 2, and 3.

Indian Peak’s 5/26/22 evidentiary objections to the declaration of Plaintiff’s counsel Alison S. Flowers (“Flowers”) are overruled as to Nos. 1, 2, 3, 4.

The City’s April 18, 2022 and June 2, 2022 Requests for Judicial Notice are granted.

On November 5, 2018, Plaintiff filed its complaint in the instant action against Indian Peak, Lucky’s Two-Way Radio (“Lucky’s”), and James A. Kay, Jr. (“Kay”) alleging four causes of action for public nuisance and violations of unfair competition law. Plaintiffs filed the operative first amended complaint (“FAC”) on February 13, 2018, solely against Indian Peak, dismissing the Complaint as to Lucky’s and Kay. The FAC alleged three causes of action for (1) public nuisance in violation of Rancho Palos Verdes Municipal Code (“RPVMC”) §17.76.020(A) (installation and/or operation of commercial antennae in violation of Conditional Use Permit (“CUP”) No. 230); (2) public nuisance in violation of §17.76.020(A) (operation of commercial antennae without an approved CUP); and (3) public nuisance under Civil Code §§3479, 3480, 3491, and 3494; C.C.P. §§526, 527, 731; and Government Code §38771 in connection with an illegally installed and operated commercial antennae in a single-family residential zoning district, outside of a residence located at 26708 Indian Peak Road, Rancho Palos Verdes, California, APN 7577-013-030 (“Property”). On November 19, 2018, Defendant filed a separate action against the City petitioning for a writ of mandamus to overturn the City Council’s CUP No. 230 revocation.[1]

On March 26, 2019, Plaintiff filed its Motion for Summary Judgment (“MSJ”) on all three causes of action in the FAC. On November 20, 2019, this Court granted Plaintiff’s MSJ and entered judgment on December 5, 2019. Plaintiff’s first motion for attorneys’ fees was heard and decided on February 3, 2020, in which this Court determined Plaintiff was the “prevailing party” entitled to recovery of attorneys’ fees pursuant to Government Code §38773.5(b). This Court granted Plaintiff’s motion for attorneys’ fees in the amount of $107,791.50. (2/3/20 Minute Order.)

Defendant appealed this Court’s ruling on Plaintiff’s MSJ and award of attorneys’ fees. On November 16, 2021, the Court of Appeal of the State of California, Second Appellate District, affirmed this Court’s ruling as to the first and second causes of action in violation of RPVMC but reversed and remanded on the third public nuisance cause of action and this Court’s order granting Plaintiff’s attorney’s fees. (RJN B, Opinion, pg. 39.) The Second Appellate District directed the parties to “bear their own costs on appeal.” (Id.)

On April 18, 2022, Plaintiff filed the instant motion for attorneys’ fees and request for judicial notice. On May 26, 2022, Defendant filed its opposition and evidentiary objections. On June 2, 2022, Plaintiff filed its reply, response to Defendant’s evidentiary objections, and additional requests for judicial notice.

On June 29, 2022, this Court issued its amended judgment based on the Court of Appeal’s remittitur, granting Plaintiff’s motion for summary adjudication as to the first and second causes of action, denying Plaintiff’s MSJ, and denying Plaintiff’s motion for summary adjudication as to the third cause of action, with the third cause of action dismissed on May 10, 2022. (Amended Judgment, pgs. 1-2.) This Court ordered Defendant permanently enjoined from installing or operating, or allowing to be installed or operated, and from continued operation of any unpermitted commercial antennas on the Property, including all currently installed unpermitted commercial antennas, and ordered Defendant to abate immediately the installation and operation of all unpermitted commercial antennas, with the exception of the DirectTV satellite dish on the property. (Amended Judgment, pg. 2.) Defendant was restrained and enjoined from transferring ownership of the Property and structures thereon unless they have complied with all applicable orders of this Court. (Amended Judgment, pg. 3.)

When authorized by contract, statute, or law, reasonable attorneys’ fees are “allowable costs.” (C.C.P. § 1033.5(a)(10)(A)-(C); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Pacific Custom Pools, Inc. v. Turner Construction Co. (2000) 79 Cal.App.4th 1254, 1268.)

Government Code §38773.5(b) provides: “[A] city may, by ordinance, provide for the recovery of attorneys’ fees in any action, administrative proceeding, or special proceeding to abate a nuisance.” The City, by ordinance, has adopted RPVMC § 1.08.010(D)(3), which provides for the recovery of attorneys’ fees in a nuisance action:

The prevailing party in any proceeding associated with a violation of the code, the abatement of a public nuisance, or where a violation of any provision of the code has been declared a public nuisance, shall be entitled to recovery of attorneys’ fees incurred in any such proceeding, where the city has elected, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys’ fees.

(RPVMC §1.08.010(D)(3).) Courts have interpreted the term “statute” to include “municipal ordinances.” (City of Los Angeles v. Belridge Oil Co. (1954) 42 Cal.2d 823, 833-834.) Thus, a municipal ordinance is a law for purposes of awarding fees under C.C.P. §1033.5(a)(10). (City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 492.) Statutory provisions authorizing attorney fees to the “prevailing party” are not subject to the definition of “prevailing party” in the general costs statute (C.C.P. §1032) or Civil Code §1717. (Galan v. Wolfriver Holding Corp. (2000) 80 Cal.App.4th 1124, 1128-1129.) Instead, the court should also analyze which party prevailed on a “practical level.” (Heather Farms Homeowners Association, Inc. v. Robinson (1994) 21 Cal.App.4th 1568, 1574; Galan, supra, 80 Cal.App.4th at pg. 1129.) For statutory attorney fee awards, on a practical level, a trial court must determine whether the moving party is the prevailing party by analyzing the extent to which each party has realized its litigation objectives. (Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1023.)

Here, on a practical level, Plaintiff is the prevailing party in this action and is entitled to recovery of attorneys’ fees because Plaintiff prevailed on the first two causes of action for statutory nuisance. (Amended Judgment, pgs. 1-2.) Further, this Court ordered Defendant permanently enjoined from installing or operating unpermitted commercial antennas on the Property, including all currently installed unpermitted commercial antennas, and ordered Defendant to abate immediately the installation and operation of all unpermitted commercial antennas, with the exception of the DirectTV satellite dish on the property. (Amended Judgment, pg. 2.) As the prevailing party, Plaintiff is entitled to recover reasonable attorneys’ fees.

In opposition, Defendant argues Plaintiff is not entitled to attorneys’ fees related to the appeal in this matter because the Court of Appeals’ opinion states “the parties are to bear their own costs on appeal; Plaintiff is not the prevailing party in this action, and at most, both parties equally prevailed; and fees sought by Plaintiff are excessive and unreasonable. (Opposition, pgs. 6-7.) Defendant also argues the attorneys’ fees request is unreasonable for the following reasons: (1) Plaintiff submits a Matter Ledger that includes the time spent by 12 timekeepers, including more than 4 different attorneys; (2) the time incurred includes the time spent by multiple attorneys on both the Mandamus Action and Nuisance Action without distinction; (3) the Matter Ledger includes time spent inappropriately on the dismissed third cause of action and the fourth cause of action from the Complaint which were voluntarily removed by Plaintiff following Defendant’s Appeal and Demurrer, respectively; and (4) Defendant’s attorney fees expert calculated the actual total in fees billed should be $1,350.50 less than the amount Plaintiff requests. (Opposition, pg. 7.) The Court notes Defendant does not object to the hourly rates claimed by Plaintiff’s counsel. Defendant’s specific objections are discussed below.

The general rule in state courts is that statutory or contractual entitlement to an attorneys’ fee award in favor of the prevailing party applies to both trial and appellate court proceedings. (Serrano v. Unruh (1982) 32 Cal.3d 621, 637.) Although a state appellate court has discretion to award attorney’s fees, in most cases it will not do so. (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 901 [determining the “better practice” is to have trial court determine attorneys’ fees incurred on appeal].) Unless the appellate court orders otherwise, an award of appellate costs does not include appellate attorney fees or preclude a party from seeking them. (C.R.C., Rule 8.278(d)(2); Stratton v. Beck (2018) 30 Cal.App.5th 901, 909-914.)

In the interests of justice, the court can order each party to bear its own appellate costs, effectively making no costs award. (Credit Suisse First Boston Mortgage Capital v. Danning, Gill, Diamond & Kollitz (2009) 178 Cal.App.4th 1290, 1302 [“The result, in terms of which party prevailed, is therefore mixed. . . . . Initially, neither party had a hand in the grounds upon which this appeal has been decided. For these reasons, we will not award costs”].)

Plaintiff requests attorneys’ fees incurred during the appellate proceedings in the amount of $36,207.00. (Motion, pg. 17; Decl. of Flowers ¶¶9-10, Exh. B.) Defendant argues Plaintiff is not entitled to the award of attorneys’ fees incurred from Defendant’s appeal of the trial court granting summary judgment in this matter. (Opposition, pg. 9.) Defendant quotes the Court of Appeal’s statement, “The parties are to bear their own costs on appeal.” (See RJN B, pg. 39.) However, the Court of Appeal’s statement does not dispositively preclude Plaintiff from seeking attorneys’ fees based on Defendant’s appeal. (C.R.C., Rule 8.278(d)(2).) Rather, the Court of Appeals determined there were material issues of fact as to the third cause of action. (Appeal, pg. 31.) Plaintiff did not prevail on appeal because the Court of Appeals conferred mixed results in affirming the first two causes of action and reversing the third. In the interests of justice, the Court finds that each party will bear its own appellate costs, effectively making a no costs award on appeal. (Serrano, supra, 32 Cal.3d at pg. 637.)

Based on the foregoing, the Court denies Plaintiff’s appellate attorneys’ fees request for $36,207.00.

Although Plaintiff obtained mixed results at the appellate level, Plaintiff is the prevailing party, as stated above. Defendant argues Plaintiff is not the prevailing party because Plaintiff did not prevail on its third cause of action. (Opposition, pg. 13.) However, as Defendant acknowledges,s a party may “prevail” despite only partial success—e.g., where the party won on some causes of action but lost on others, partial success reduces the awardable fees and costs, and the party seeking attorney fees bears the burden of demonstrating to the court the time and costs expended on the claims on which it prevailed. (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 177-178 [succeeding on only one of six causes of action relating to approval of housing project]; City of Oakland v. Oakland Police & Fire Retirement System (2018) 29 Cal.App.5th 688, 708 [is well settled that plaintiff achieving partial success may recover fees under C.C.P. §1021.5].)

This Court reduced Plaintiff’s recovery according to its mixed results on appeal. However, Plaintiff’s remaining claims and the relief granted to Plaintiff by this Court demonstrates Plaintiff fulfilled its overall litigation objectives. (Castro, supra, 116 Cal.App.4th at pg. 1023.) Accordingly, Plaintiff is still entitled to attorney’s fees as the prevailing party.

Defendant argues that the Court should reduce Plaintiff’s fee demand because Defendant’s April 17, 2020 petition submission to the FCC for a declaratory ruling should have stayed all matters in this case. (Opposition, pgs. 16-17.) Defendant cites 47 C.F.R. §1.4000, the Over-the-Air Reception Devices (“OTARD”) rule in support of its argument that this action should have been stayed pending executive review: “if a proceeding is initiated pursuant to paragraph (d) or (e) of this section, the entity seeking to enforce the antenna restrictions in question must suspend all enforcement efforts pending completion of review.” (47 C.F.R. §14000(a)(4); Opposition, pg. 16.)

In Reply, Plaintiff argues Defendant did not raise this argument on appeal in this case, and the Court of Appeals noted in its opinion denying Defendant’s writ of mandate that Defendant’s OTARD defense was “forfeited.” (RJN 6/2/2022, Exh. B., pgs. 26-27 & n.14.)

In compliance with the Administrative Procedure Act (“APA”), the FCC is not obligated to initiate a proceeding to address Defendant’s petition; as a matter of law, “the Commission has broad power to refuse to grant declaratory relief.” (Yakima Valley Cablevision, Inc. v. F.C.C. (D.C. Cir. 1986) 794 F.2d 737, 747.) Section 554 of the APA provides: “The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.” (5 U.S.C. §554(e).) While the FCC may issue a declaratory order, “agencies are not required to issue such orders merely because a request is made therefor.” (Use of Broadcast Facilities by Candidates for Public Office (1970) 24 F.C.C.2d 832, 885.) The mere “mailing” of a petition for declaratory ruling does not constitute a “proceeding” to which an automatic stay applies. Rather, for Section 1.4000(a)(4) to block the City from taking further action, the FCC must first accept a petition for filing and then send a public notice of the same to the City. Section 1.4000(a)(4) specifically provides “if a proceeding is initiated pursuant to paragraph (d) or (e) of this section, the entity seeking to enforce the antenna restrictions in question must suspend all enforcement efforts pending completion of review.” (47 CFR 1.4000(a)(4).)

Defendant’s April 17, 2020 47 C.F.R §1.4000 petition submission to the FCC and three supplemental filings to initiate a proceeding are not sufficient to provide the City with public notice of a proceeding and cannot justify denial of the City’s Motion for attorney’s fees. (RJN 6/2/2022, Exh. E.)

Defendant argues that the amount sought by Plaintiff is unjustified, excessive, and unreasonable. Defendant makes three arguments: (1) Plaintiff requests a figure that is $1,350.50 over their actual billing figures (Decl. of Jardini ¶3); (2) five hours or $800 in fees in Plaintiff’s billing records are vague and redacted and should be reduced as improper billing (Decl. of Jardini ¶¶35-37); (3) there was an overbilling of $454.50 as to specific billing of Flowers and Wynders (Decl. of Jardini ¶ 39); (4) Plaintiff submitted a total of 690.1 hours of this matter, of which 533.4 hours were billed by partners, 135.7 hours were billed by associates, and 21 hours were billed by other billing personnel, which was a top-heavy staffing scenario that resulted in a high overall average firm rate for all timekeepers; and (5) a large number of hours were billed by multiple attorneys for the same work product preparation and some overhead tasks were not reasonably billable as legal fees (Decl. of Jardini ¶¶44-54, 59-64).

In Reply Plaintiff argues that its motion for attorneys’ fees seeks the exact amount this Court previously awarded, albeit on a different procedural posture than the previous motion for attorneys’ fees, and Defendant reargues the same reasonableness of attorneys’ fees incurred as the first motion. (Reply, pg. 5 & n.3.) Plaintiff states that this Court reduced its attorneys’ fees in its first motion by $6,500.00 and determined $107,791.50 was reasonable. (Reply, pg. 5.) Plaintiff notes that none of the work performed prior to the appeal was in relation to proving the elements of a public nuisance action under Civil Code § 3479, further supported by the Court of Appeals’ ruling that Plaintiff relied on a nuisance per se doctrine to establish its case. (Reply, pg. 5, n.2.)

Upon review, the Court again finds that $107,791.50 is reasonable. Plaintiff submitted billing records, which set forth a description of tasks performed by counsel, the number of hours expended by counsel in performing the tasks, and the amount of attorneys’ fees incurred as a result in this action sufficient to support its requested attorneys’ fees for trial proceedings. (Decl. of Flowers, Exh. A.) Attorney Flowers is a graduate of Whittier Law School and has been practicing law in California as a litigator and trial attorney for almost twelve years. (Flowers Decl., ¶¶ 2-3.) Flowers attests to billing Plaintiff at the rate of $215 per hour for her services in this case during the proceeds before the trial court, which increased to $230 per hour as of November 1, 2021. (Flowers Decl., ¶ 4.) Similarly the hourly rates for partners and associates who provided supporting work was $215 per hour and then $230 per hour. (Flowers Decl., ¶ 5.) Attorney Tucker is a graduate of Southwestern University Law School, and has been practicing law as a litigator and trial attorney in California for over forty-seven years. (Tucker Decl., ¶¶ 2-3.) Tucker attests to billing Plaintiff at the rate of $215 per hour for his services in this matter. (Tucker Decl., ¶ 4.) The Court notes that as to the “rate adjustments” totaling $454.50, Defendant does not identify the dates of the billing for the Court to evaluate the challenge.

Further, Plaintiff submitted evidence to support the claimed $2,254 in fees related to the the preparation of the instant motion, two supporting declarations, request for judicial notice, and related exhibits at a rate of $230 an hour for 9.8 hours. (Decl. of Flowers ¶12.) Further, Plaintiff anticipated an additional attorneys’ fees in the amount of $2,300.00 to review Defendant’s Opposition, prepare Plaintiff’s Reply, prepare for the motion hearing, and attend said hearing, at a rate of $230 an hour for 10 hours, totaling $2,300.00. (Decl. of Flowers ¶12.) The Court finds these amounts reasonable.

Accordingly, the Court grants Plaintiff’s attorneys’ fees requested in the amount previously awarded for trial proceedings for $107,791.50. The Court further awards Plaintiff’s requested attorneys’ fees in connection with this motion for $4,554.00. Accordingly, this Court grants Plaintiff a reduced total amount of attorneys’ fees of $112,345.50.

[1] Defendant’s writ petition was denied on August 9, 2019, with judgment entered on December 9, 2019. Defendant appealed the denial of its writ petition, and the Court of Appeals affirmed the trial court’s determination against Defendant.