This case was last updated from Los Angeles County Superior Courts on 10/30/2020 at 21:17:37 (UTC).

BUILDING A BETTER REDONDO ET AL VS CITY OF REDONDO BEACH ET

Case Summary

On 11/18/2016 BUILDING A BETTER REDONDO filed an Other - Writ Of Mandamus lawsuit against CITY OF REDONDO BEACH ET. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are KEVIN C. BRAZILE, YVETTE M. PALAZUELOS, DEBRE K. WEINTRAUB, JAMES C. CHALFANT and DEBRE KATZ WEINTRAUB. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6124

  • Filing Date:

    11/18/2016

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Other - Writ Of Mandamus

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

KEVIN C. BRAZILE

YVETTE M. PALAZUELOS

DEBRE K. WEINTRAUB

JAMES C. CHALFANT

DEBRE KATZ WEINTRAUB

 

Party Details

Plaintiffs, Petitioners and Respondents

LIGHT JAMES

BUILDING A BETTER REDONDO

Defendants, Respondents, Appellants and Not Classified By Court

CITY COUNCIL OF THE CITY OF REDONDO BEACH

CENTERCAL PROPERTIES LLC

REDONDO BEACH WATERFRONT LLC

CITY OF REDONDO BEACH

Respondents, Interested Parties and Defendants

REDONDO BEACH CITY OF

DOES 1 THROUGH 10

CITY COUNCIL OF THE CITY OF REDONDO BEACH

CITY OF REDONDO BEACH

Plaintiffs, Petitioners, Respondents and Not Classified By Court

LIGHT JAMES

BUILDING A BETTER REDONDO

REDONDO BEACH CITY OF

DOES 1 THROUGH 10

CITY COUNCIL OF THE CITY OF REDONDO BEACH

CENTERCAL PROPERTIES LLC

REDONDO BEACH WATERFRONT LLC

CITY OF REDONDO BEACH

Interested Parties, Defendants, Respondents and Not Classified By Court

DOES 11 THROUGH 50

REDONDO BEACH CITY OF

CENTERCAL PROPERTIES LLC

REDONDO BEACH WATERFRONT LLC

ALLEN MATKINS LECK GAMBLE MALLORY&NATSIS

Interested Parties, Appellants, Respondents and Not Classified By Court

REDONDO BEACH WATERFRONT LLC

HOLLIFIELD JUDITH

HEDLUND JOYCE

LAKE MCMANUS

JANNEY & JANNEY

8 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ANGEL FRANK P. ESQ.

ANGEL FRANK P.

Respondent, Interested Party and Appellant Attorneys

PERRY PATRICK AUSTIN

WEBB MICHAEL WALTER

SOHAGI MARGARET M.

WEBB MICHAEL W. ESQ.

SOHAGI LAW GROUP

MURRAY EMILY

Respondent, Defendant and Appellant Attorneys

WEBB MICHAEL WALTER

SOHAGI MARGARET M.

WEBB MICHAEL W. ESQ.

 

Court Documents

Notice of Entry of Judgment

10/23/2018: Notice of Entry of Judgment

NOTICE OF ENTRY OF MINUTE ORDER

3/22/2018: NOTICE OF ENTRY OF MINUTE ORDER

Minute Order -

6/21/2018: Minute Order -

JUDGMENT GRANTING IN PART AND DENYING IN PART PEREMPTORY WRIT OF ADMINISTRATIVE MANDAMUS AND DECLARATORY RELIEF

7/30/2018: JUDGMENT GRANTING IN PART AND DENYING IN PART PEREMPTORY WRIT OF ADMINISTRATIVE MANDAMUS AND DECLARATORY RELIEF

Appeal - Ntc Designating Record of Appeal APP-003/010/103

12/17/2018: Appeal - Ntc Designating Record of Appeal APP-003/010/103

Reply - Reply to opposition

10/2/2018: Reply - Reply to opposition

Appeal - Ntc Designating Record of Appeal APP-003/010/103 - Appeal - Ntc Designating Record of Appeal APP-003/010/103 with proof of service

12/28/2018: Appeal - Ntc Designating Record of Appeal APP-003/010/103 - Appeal - Ntc Designating Record of Appeal APP-003/010/103 with proof of service

Reply - Reply to opposition to motion to strike costs

11/29/2018: Reply - Reply to opposition to motion to strike costs

Legacy Document - LEGACY DOCUMENT TYPE: Declaration

10/1/2018: Legacy Document - LEGACY DOCUMENT TYPE: Declaration

PROOF OF ELECTRONIC SERVICE

9/14/2017: PROOF OF ELECTRONIC SERVICE

RESPONDENTS' STATUS CONFERENCE STATEMENT

6/12/2017: RESPONDENTS' STATUS CONFERENCE STATEMENT

Proof of Service -

6/13/2017: Proof of Service -

PROOF OF SERVICE RE: DEFENDANTS' JOINT OPPOSITION TO PETITIONERS' MOTION TO SEVER THEIR FOURTH CAUSE OF ACTION AND SUPPORTING DECLARATIONS

6/30/2017: PROOF OF SERVICE RE: DEFENDANTS' JOINT OPPOSITION TO PETITIONERS' MOTION TO SEVER THEIR FOURTH CAUSE OF ACTION AND SUPPORTING DECLARATIONS

DEFENDANTS' JOINT OPPOSITION TO PETITIONERS' MOTION TO SEVER THEIR FOURTH CAUSE OF ACTION

6/30/2017: DEFENDANTS' JOINT OPPOSITION TO PETITIONERS' MOTION TO SEVER THEIR FOURTH CAUSE OF ACTION

PETITIONERS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SEVER PETITIONERS' FOURTH CAUSE OF ACTION; ETC

7/10/2017: PETITIONERS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SEVER PETITIONERS' FOURTH CAUSE OF ACTION; ETC

183 More Documents Available

 

Docket Entries

  • 03/11/2019
  • DocketAppeal - Notice Court Reporter to Prepare Appeal Transcript; Filed by Clerk

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  • 03/05/2019
  • DocketAppeal - Reporter Appeal Transcript Process Fee Paid; Filed by Building A Better Redondo (Respondent)

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  • 02/25/2019
  • DocketNotice of Default; Filed by Clerk

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  • 01/08/2019
  • Docketat 1:30 PM in Department 85, James C. Chalfant, Presiding; Hearing on Motion for Attorney Fees - Not Held - Advanced and Vacated

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  • 12/28/2018
  • DocketAppeal - Reporter Appeal Transcripts Deposit Paid

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  • 12/28/2018
  • DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103 (with proof of service); Filed by City of Redondo Beach (Respondent)

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  • 12/24/2018
  • DocketAppeal - Notice of Filing of Notice of Appeal; Filed by Clerk

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  • 12/21/2018
  • DocketRespondent's Notice Designating Record of Appeal; Filed by James Light (Respondent); Building A Better Redondo (Respondent); Building A Better Redondo (Respondent) et al.

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  • 12/20/2018
  • DocketAppeal - Notice of Appeal/Cross Appeal Filed; Filed by City Council of the City of Redondo Beach (Appellant); City of Redondo Beach (Appellant)

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  • 12/18/2018
  • Docketat 10:00 AM in Department 85, James C. Chalfant, Presiding; Court Order

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291 More Docket Entries
  • 12/27/2016
  • DocketPRELIMINARY NOTIFICATION OF THE ESTIMATED COST AND CONTENT OF THE ADMINISTRATIVE RECORD

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  • 12/08/2016
  • Docketat 09:00 AM in Department 1; Non-Appearance Case Review (Non-Appearance (Case Review); Court makes order) -

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  • 12/08/2016
  • DocketMinute order entered: 2016-12-08 00:00:00; Filed by Clerk

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  • 12/08/2016
  • DocketMinute Order

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  • 11/18/2016
  • DocketSUMMONS

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  • 11/18/2016
  • DocketComplaint; Filed by Building A Better Redondo (Plaintiff); James Light (Plaintiff)

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  • 11/18/2016
  • DocketNOTICE OF PETITIONERS' ELECTION TO PREPARE RECORD OF PROCEEDINGS

    Read MoreRead Less
  • 11/18/2016
  • DocketNOTICE OF COMMENCEMENT OF ACTION UNDER PUBLIC RESOURCES CODE SECTION 21167

    Read MoreRead Less
  • 11/18/2016
  • DocketPETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

    Read MoreRead Less
  • 09/25/1961
  • DocketOpposition Document; Filed by Real Party in Interest

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Tentative Rulings

b"

Case Number: BS166124 Hearing Date: August 12, 2021 Dept: 85

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Building\r\na Better Redondo, et al. v. City of Redondo Beach, et al., BS166124

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Tentative decision on motion for attorney’s fees: granted\r\nin part

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Petitioners Building a Better Redondo (“BBR”) and James\r\nLight (“Light”) move for an award of attorney’s fees on appeal against Respondents\r\nCity of Redondo Beach (“City”) and City of Redondo Beach City Council (“City\r\nCouncil”) (collectively, “City”) and Real Parties-in-Interest CenterCal\r\nProperties, LLC (“CenterCal”) and Redondo Beach Waterfront, LLC (“RBWF”).

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The court has read and considered the moving papers,\r\nopposition, and reply, and renders the following tentative decision.

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A. Statement\r\nof the Case

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Petitioners commenced this proceeding on November 18,\r\n2016. The operative pleading was the\r\nFirst Amended Petition (“FAP”), filed on January 3, 2017 and alleging six\r\ncauses of action against the City: (1) defects in the Final Environmental\r\nImpact Report (“FEIR”); (2) failure to recirculate a revised FEIR for public\r\ncomment; (3) violation of the public trust doctrine; (4) denial of Petitioners’\r\nright to a fair trial; (5) declaratory relief; and (6) violation of the\r\nCalifornia Public Records Act (“CPRA”).

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On May 11, 2018, the court issued a decision granting the FAP\r\nin part. The court ruled that a writ\r\nshall issue directing the City to set aside its certification of the FEIR and\r\napproval of entitlements for the Project, and to prepare a California Environmental\r\nQuality Act (“CEQA”) document addressing (1) the Mole B Boat Ramp location’s\r\nnavigational safety impacts, (2) human health impacts from removing the\r\nrevetment for the Seaside Lagoon, (3) the visual impact of the proposed hotel\r\non southern views from Czuleger Park, and (4) the Project’s compliance with the\r\nCity LUP’s prohibition on new development obstructing ocean views from the\r\nlower end of Czuleger Park. The court held\r\nthat a declaration shall issue determining that the CEQA Ordinance’s procedures\r\nare lawful, with the exception of the requirement for certified mailing by an\r\nappellant, which is severed. The court denied\r\nthe FAP in all other respects.

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On July 30, 2018, the court entered judgment. The judgment stated that a peremptory writ of\r\nmandate shall issue directing Respondents to (1) set aside the certification of\r\nthe FEIR for the Project and approval of the Project entitlements, except for\r\nthe City’s approval of the VTTM and (2) prepare and recirculate for public\r\nreview a revised EIR, or revised EIR portions as may be appropriate or\r\nnecessary under CEQA, adequately addressing (a) the Mole B Boat Ramp location’s\r\nnavigational safety impacts, (b) the human health impacts from removing the\r\nrevetment from the Seaside Lagoon, (c) the visual impact of the hotel proposed\r\nas part of the Project on southern views from Czuleger Park, and (d) the\r\nProject’s compliance with the City LUP’s prohibition on new development\r\nobstructing ocean views from the lower end of Czuleger Park. The judgment declared that the City’s CEQA\r\nOrdinance’s administrative appeal procedures are lawful, with the exception of\r\nthe requirement for certified mailing by an appellant, which is thenceforth\r\nsevered. The judgment also denies the\r\nFAP’s remaining CEQA and public trust claims.

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On October 9, 2018, the court awarded Petitioners attorney’s\r\nfees against the City and Real Parties, jointly and severally, in the amount of\r\n$683,866.30.

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On December 6, 2018, the court granted Respondents and Real\r\nParties’ motion to tax Petitioners’ memorandum of costs in the amount of $44,044.75,\r\nawarding Petitioners total costs of $82,179.33. \r\nThe court also granted Petitioners’ motion to strike Real Parties’\r\nmemorandum of costs.

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On June 1, 2021, the Court of Appeal affirmed the court’s\r\naward of attorneys’ fees and costs to Petitioners.

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B. Applicable Law

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CCP section 1021.5 (“section 1021.5”) codifies the “private\r\nattorney general” exception to the general rule that each side bears its own\r\nfees unless the parties contracted otherwise. \r\nSee CCP §1021. Section 1021.5 permits a trial court to award\r\nfees to a successful party in any action where it has been established that (1)\r\nplaintiff’s action has resulted in the enforcement of an important right\r\naffecting the public interest, (2) a significant benefit, whether pecuniary or\r\nnonpecuniary, has been conferred on the general public or a large class of\r\npersons, and (3) the necessity and financial burden of private enforcement are\r\nsuch as to make the award appropriate. Conservatorship\r\nof Whitley, (2010) 50 Cal.4th 1206, 1214. The burden is on the party requesting section\r\n1021.5 fees to demonstrate all elements of the statute, including that the\r\nlitigation costs, transcend his or her personal interest. Millview\r\nCounty Water Dist. v. State Water Resources Control Bd., (“Millview”)\r\n(2016) 4 Cal.App.5th 759, 769. The issue\r\nis committed to the trial court’s discretion. \r\nIbid.

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Courts take a “broad,\r\npragmatic view of what constitutes a ‘successful party’” in order to effectuate\r\nthe policy underlying section 1021.5. Graham v. DaimlerChrysler Corp., (“Graham”) (2004) 34 Cal.4th\r\n553, 565. The party seeking attorney\r\nfees need not prevail on all of its alleged claims in order to qualify for an\r\naward. Harbor\r\nv. Deukmejian, (“Harbor”)\r\n(1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney, (1983) 146 Cal.App.3d 42, 55. The party is considered “successful” under section\r\n1021.5 if the litigation “contributed substantially to remedying the conditions\r\nat which it was directed.” Planned Parenthood v.\r\nAakhus, (1993) 14 Cal.App.4th\r\n162, 174. In other words, the\r\n“successful” party under section 1021.5 is the party that succeeds on “any\r\nsignificant issue in litigation which achieves some of the benefit the parties\r\nsought in bringing suit.” Maria P. v. Riles,\r\n(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\r\nunder section 1021.5 are entitled to compensation for all hours reasonably\r\nspent. Serrano\r\nv. Unruh, (1982) 32 Cal.3d 621,\r\n632–33.

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Unlike the separate\r\nsubstantial benefit doctrine, “the ‘significant benefit’ that will justify an\r\nattorney fee award need not represent a ‘tangible’ asset or a ‘concrete’ gain\r\nbut, in some cases, may be recognized simply from the effectuation of a\r\nfundamental constitutional or statutory policy.” Woodland Hills Residents Assn., Inc. v. City\r\nCouncil, (“Woodland Hills”) (1979) 23 Cal.3d 917, 939. \r\n“[T]he benefit may be conceptual or doctrinal and need not be actual or\r\nconcrete; further, the effectuation of a statutory or constitutional purpose\r\nmay be sufficient.” Braude v. Automobile Club of Southern Cal., (1986) 178 Cal.App.3d 994, 1011. Moreover, the extent of the public benefit\r\nneed not be great to justify an attorney fee award. See,\r\ne.g., Protect Our Water v. County of Merced, (2005) 130 Cal.App.4th 488, 496 (significant\r\npublic benefit where litigation prompted agency to improve methods of creating\r\nand managing its CEQA records). The trial court determines “the significance of\r\nthe benefit, as well as the size of the class receiving benefit, from a\r\nrealistic assessment, in light of all the pertinent circumstances, of the gains\r\nwhich have resulted in a particular case.” \r\nWoodland Hills, supra, 23 Cal.3d at 939-40.

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The party seeking\r\nattorney’s fees must show that the necessity for pursuing the lawsuit placed a\r\nburden on the plaintiff “out of proportion to his individual stake in the\r\nmatter.” Woodland Hills, supra, 23 Cal. 3d at 941. Although cases refer to this requirement as\r\nthe “financial burden” criterion, nothing in the language of CCP section 1021.5\r\nlimits the consideration of the necessity and financial burden clause to solely\r\nfinancial interests. Hammond v. Agran,\r\n(2002) 99 Cal.App.4th 115, 125. “The\r\nidea is that the litigation for which fees are claimed must transcend one's\r\ninterests, whether pecuniary or not.” Id. at 127. The question is whether advancement of the\r\npublic interest was merely coincidental to the attainment of the party’s\r\npersonal goals. Bowman\r\nv. City of Berkeley, (2005)\r\n131 Cal.App.4th 173, 181. The party\r\nseeking attorney fees bears the burden of establishing that its litigation\r\ncosts 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\r\nfinancial burden criterion involves a “realistic and practical comparison of\r\nthe litigant's personal interest with the cost of suit.” Families Unafraid to Uphold Rural El Dorado\r\nCounty v. Bd. of Supervisors, (2000) 79 Cal.App.4th 505, 515.

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C. Statement of Facts

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1. Petitioners’ Evidence

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Angel\r\nLaw served as BBR’s counsel throughout the proceedings in the instant action. Angel Decl., ¶3. The lawsuit successfully challenged a\r\nvoluminous FEIR for the Waterfront Project. \r\nAngel Decl., ¶4. On May 11, 2018,\r\nthe court granted substantial, substantive writ of mandate relief under\r\nCEQA. Id. Exs. 1-2.

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On\r\nAugust 14, 2018, Petitioners filed a memorandum of costs, including the costs for\r\nAngel Law’s time in preparing the voluminous administrative record. Angel Decl., ¶6. Shortly thereafter, Real Parties filed their\r\nown memorandum of costs on the theory that they were the prevailing parties. Id. \r\n

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Angel Law’s attorney’s fee motion was filed on September 12,\r\n2018. On October 1, 2018, Real Parties\r\nfiled a fee motion which claimed that they were the successful parties for the\r\npurposes of section 1021.5. Angel Decl.,\r\n¶7. On December 17, 2018, Real Parties\r\nwithdrew their fee motion. Id. By then, Angel Law had spent a substantial\r\namount of time preparing to oppose that motion. \r\nId.

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The City and Real Parties filed a joint motion to tax\r\nPetitioner’s costs and Petitioners filed a motion to strike Real Parties’ cost\r\nmemorandum. Id. On December 6, 2018, the court granted\r\nPetitioners’ motion to strike Real Parties’ memorandum of costs and awarded\r\nPetitioners costs in the amount of $82,179.30. \r\nId., Ex. 4.

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Because\r\nAngel Law’s fee motion was filed on September 12, 2018, it did not seek\r\nrecovery of fees for attorney time in preparing to oppose Real Parties’ fee\r\nmotion. Id. Nor did Angel Law’s fee motion include attorney\r\nservices between October and December 2018 for the November 26, 2018 opposition\r\nto the City’s and Real Parties’ joint motion to tax costs, for Angel Law’s\r\nNovember 29, 2018 reply to Real Parties’ opposition to the motion to strike\r\ntheir cost memorandum, or for appearing at the December 6, 2018 hearing on the\r\ntwo cost motions. Id.

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On\r\nDecember 7, 2018, Real Parties appealed the court’s October 9 and December 6,\r\n2018 orders, including the December 6 order striking Real Parties’ memorandum\r\nof costs which claimed $1,092.60. Angel\r\nDecl., ¶8. On December 20, 2018, the\r\nCity also appealed the court’s fee and cost awards to Petitioners. Id. \r\n

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On August 23, 2019, Real Parties filed their opening brief on\r\nappeal and an eight-volume appendix containing 2,279 pages of 46 separate\r\ndocuments. Angel Decl., ¶9, Ex. 5.

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All\r\nparties requested oral argument, which was held on February 10, 2021. Angel Decl., ¶13. On February 18, 2021, the Court of Appeal\r\nfiled a detailed opinion not certified for publication rejecting each argument\r\nmade by Real Parties and the City and affirming the orders in full. Id., Ex. 10.

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In the\r\ninstant motion, Petitioners seek to recover their reasonable fees for the\r\npost-October 9, 2018 time of Angel Law. \r\nAngel Decl., ¶15. Petitioners\r\nrequest that the full amount of fees claimed in the motion ($284,599.50) be\r\nassessed against Real Parties CenterCal and RBWF, jointly and severally. Petitioners request that $50,000 of this\r\ntotal be assessed against both Real Parties and the City, jointly and\r\nseverally. Id. Petitioners seek to limit their fee claim\r\nagainst the City because on May 19, 2021 the City paid the fees ($683,866.30)\r\nand the costs of suit ($82,179.33) previously awarded to Petitioners, plus the\r\nlegal interest that had accrued against the City during the appeals\r\n($91,817.44). Id. Angel Law exercised billing restraint to\r\nlower the amount sought for the instant motion to $34,410. Angel Decl., ¶19, 24.

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Angel\r\nLaw seeks a lodestar of $251,408.33, made up of four separate amounts: (1)\r\n$165,955.83 for the City’s and Real Parties’ appeals (Angel Decl., Ex. 11); (2)\r\n$37,071.67 for the post-judgment proceedings in this court (October 11 to\r\nDecember 17, 2018) and for writ compliance (January 14 to March 19, 2019)\r\n(Angel Decl., Ex. 12); (3) $34,410 for the instant fee motion, plus estimated\r\ntime to be spent on review of the oppositions, preparation of the reply, and\r\noral argument; and (4) $13,970.83 for other 2021 post-appeal time commitments\r\n(February 18 to June 29, 2021). Angel\r\nDecl., ¶16.

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Angel Law requests a multiplier of 1.2 be applied to only\r\nthe lodestar for the appeal ($165,955.83), which yields a fee enhancement of no\r\nmore than $33,191.17. Id. Including the multiplier, the total sought is\r\n$284,599.50. id.

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The court previously found Angel’s hourly rate of $650 an\r\nhour to be reasonable. Angel Decl., ¶27,\r\nEx. 3. As of January 1, 2019, Angel’s\r\nhourly market rate has been raised to $750 per hour, which is reasonable for\r\nhis level of expertise based on his understanding of comparable rates charged\r\nin the Southern California legal market and rates actually awarded in analogous\r\ncases. Angel Decl., ¶¶ 27-32, Exs. 13-15.

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Attorney Raskin’s hourly market rate at Angel Law was $300\r\nfor 2018, which increased to $350 in 2019. \r\nRaskin Decl., ¶14. The court\r\npreviously found Raskin’s law clerk rate of $250 per hour to be reasonable in\r\nits October 2018 award. Id. The court also accepted Raskin’s hourly\r\nmarket rate of $300 for his legal services in 2018. Id. \r\nThe requested rate of $350 is commensurate with Raskin’s currently\r\nhourly rate at Hanson Bridgett LLP which increased to $375 since January 1,\r\n2021. Id.

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Attorney Nimmer’s requested hourly market rate for the\r\ninstant case is $275, which she opines is reasonable for her level of\r\nexperience and commensurate with the hourly rates charged for legal work\r\nperformed by junior associates at the law firms who represent or have\r\nrepresented Real Parties in the case at bench and in other litigation involving\r\nthe Waterfront Project. Nimmer Decl., ¶¶\r\n10-12.

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Paralegal McManus’s hourly market rate since January 1, 2019\r\nhas been $250. McManus Decl., ¶8. The rate was $200 in 2018, which the court\r\nfound reasonable in granting Angel Law’s initial fee motion. Id. \r\n

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All legal work for which Angel Law seeks fee compensation was\r\nprovided pro bono as Angel Law received no fee compensation from Petitioners\r\nfor any of the time commitments rendered after October 9, 2018. Angel Decl., ¶41.

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In the retainer agreement with Petitioners, Angel Law agreed\r\nto compensation subject to a $90,000 fee cap, and subject to substantially\r\nreduced hourly billing rates so the fee cap would be reached at a slower\r\npace. Angel Decl., ¶42. Only out-of-pocket expenses -- not fees for\r\nlegal services -- were excluded from the fee cap. Id. \r\nAngel’s agreed reduced hourly billing rate was $325; the agreed reduced\r\nhourly billing rate for attorney Raskin was $175; and the agreed reduced hourly\r\nbilling rate for attorney McManus was $100. \r\nId.

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Petitioners have been unable to pay the fee cap of $90,000. Angel Decl., ¶44. The payments made total $66,530, including\r\n$10,472.02 in out-of-pocket expenses, such that Angel Law has received $56,057.98\r\nin fees ($66,530 – $10,472.02) from Petitioners. Id. \r\nOf the $66,530, $32,372 was paid in six separate contributions over time\r\nby a charitable organization, the South Bay Parkland Conservancy. Id. \r\nAll $66,530 were contributions raised over time from individual BBR\r\nsupporters. Id.

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Angel Law has received no public or charitable funding for\r\nits professional services or as reimbursement for its expenses in this\r\ncase. Angel Decl., ¶46. Nor will any fee award inure to any public\r\ninterest law firm or nonprofit legal organization. Id. \r\nNo other law firm assisted Angel Law in this litigation. Id. \r\nAngel Law has no agreement to share fees with the Petitioners or any\r\nthird party. Id.

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2. Reply Evidence

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The 2018 fee and cost orders have not been satisfied in full\r\nand Angel so informed Real Parties’ lead counsel, Betty Shumener, Esq.\r\n(“Shumener”) on May 14, 2021. Angel\r\nReply Decl., ¶4, Ex. 1. Angel informed\r\nShumener that Petitioners’ accrued interest claim as to her clients amounted to\r\n$105,268.12 as of May 14, 2021, explaining that this $105,268.12 was calculated\r\nbased on a 5.34% post judgment interest rate on the $683,866.30 fee award from\r\nOctober 11, 2018 to May 14, 2021 (10% minus 4.66% [fluctuating post judgment\r\nrate applicable to the City under Government Code section 970.1]) and a 5.30% post\r\njudgment interest rate on the $82,179.33 cost award, from December 6, 2018 to\r\nMay 14, 2021 (10% minus 4.70% [fluctuating post-judgment rate applicable to the\r\nCity under Government Code section 970.1]), and that these post-judgment rates\r\nrepresent the difference between the post-judgment interest rates applicable to\r\nthe City and the 10% post-judgment interest rate applicable to Real Parties. Id.

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Angel sent a second letter to Shumener on July 30, 2021 in\r\nresponse to Real Parties’ demand for acknowledgment of full satisfaction of the\r\n2018 fee and cost orders. Angel Reply\r\nDecl., ¶5, Ex. 2. The letter provides\r\nadditional explanation why the City’s May 19, 2021 payment of fees, costs, and\r\npost-judgment interest does not fully satisfy Real Parties’ obligations under\r\nthose orders. Id.

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D. Analysis

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Petitioners seek an attorney’s fee award of $284,599.50,\r\nincluding a lodestar of $251,408.33 and a multiplier of 1.2 applied only to the\r\nportion of the lodestar relating to appellate work. Real Parties and the City separately oppose.

\r\n\r\n

\r\n\r\n

1. Entitlement to\r\nFees

\r\n\r\n

Neither Real Parties\r\nnor Respondents dispute that Petitioners are entitled to an award of fees\r\npursuant to CCP section 1021.5.

\r\n\r\n

Real Parties assert that\r\nPetitioners are not entitled to any post-judgment fees, noting that\r\npost-judgment fees are waived if not sought before accepting payment in\r\nsatisfaction of a judgment. Gray1\r\nCPB, LLC v. SCC Acquisitions, Inc., (“Gray1”) (2015) 233 Cal.App.4th\r\n882, 891. Because Petitioners have been\r\nawarded and paid their pre-judgment costs, they have waived their right to seek\r\nthe post-judgment fees they request in the amount of $85,452.50. It is\r\nundisputed that on May 19, 2021 the City paid the attorneys’ fee award of\r\n$683,866.30 and costs of litigation of $82,179.33, plus the legal\r\ninterest that had accrued against the City during opposing parties’ appeals\r\n($91,817.44). See Angel Decl.,\r\n¶15. Real Parties assert that, having\r\naccepted payment of the judgment, Petitioners cannot seek post-judgment fees\r\nrelated to that judgment. RPI Opp. at\r\n8.

\r\n\r\n

\r\n\r\n

a. Interest Rate Differential

\r\n\r\n

As Petitioners correctly state, Real Parties’ argument is\r\nbased on a false premise that the judgment has been satisfied. The judgment was entered on July 30, 2018, attorney’s\r\nfees of $683,866.30 were awarded to Petitioners on October 9, 2018, and costs\r\nin the amount of $44,044.75 were awarded to Petitioners on December 6, 2018. The awards were joint and several against the\r\nCity and Real Parties.

\r\n\r\n

The City’s May 19, 2021 payment of $857,683.07 in attorney’s\r\nfees, costs, and interest does not mean that the judgment against Real Parties\r\nhas been satisfied in full. As\r\nPetitioners note, the post-judgment interest component ($91,817.44) of the\r\npayment Petitioners received from the City was calculated based on statutorily\r\nmandated, fluctuating interest rates for local public agencies under Govt. Code\r\nsection 970.1 (“section 970.1”) that are substantially lower than the\r\npost-judgment interest rates applicable to Real Parties. Pursuant to section 970.1, interest on a tax\r\nor fee judgment against a local public entity such as the City accrues at a\r\nrate equal to the weekly average one-year constant maturity United States\r\nTreasury yield at the time of the judgment plus 2% but shall not exceed 7% per\r\nannum.

\r\n\r\n

In contrast, the interest imposed on Real Parties, which are\r\nnot public entities, is governed by CCP section 685.010(a), which sets\r\npost-judgment interest at 10% per annum. \r\nReal Parties’ authority reflects that such interest is included as\r\namount necessary to fully satisfy a judgment. \r\nThe purpose of requiring that a motion for enforcement costs be brought\r\nbefore the judgment is satisfied (CCP §685.080(a)) is to avoid a situation\r\nwhere the judgment debtor has paid the entirety of what he believes is his\r\nobligation, only to face a motion seeking more fees. Gray1, supra, 233 Cal.App.4th\r\nat 891. That is not the case where the\r\njudgment debtors owe the same judgment, but different interest. The judgment has not been fully satisfied. Thus, Real Parties – and only Real Parties --\r\nowe post-judgment interest at the rates set forth in Petitioners’ motion (10%\r\nminus 4.66% for fees and minus 4.70% for costs). See Reply at 4.

\r\n\r\n

Petitioners also establish they never intended to accept the\r\npayment from the City as full satisfaction of the 2018 fees and cost\r\norders. Angel Reply Decl., ¶¶ 3-5, Exs.\r\n1, 2. As Real Parties have not made\r\npayment of this post-judgment interest, they cannot demonstrate that the 2018\r\njudgment has been satisfied in full or that Petitioners have waived their right\r\nto seek post-judgment fees. This amount\r\nwas $105,268.12 as of May 14, 2021. \r\nAngel Reply Decl., ¶4, Ex. 1. \r\nThis amount is owed by Real Parties only.

\r\n\r\n

\r\n\r\n

b. October 9-December 7, 2018 Attorney Services

\r\n\r\n

Petitioners seek $37,071.67 for post-judgment attorney work\r\nbetween October 9, 2018 and December 17, 2018. \r\nThey argue that the motion does not seek fees for attorney services\r\npreceding the court’s October 9, 2018 fee decision; it seeks as yet\r\nunadjudicated fee compensation for Petitioners’ post-October 9, 2018 efforts in\r\ndefending their cost memorandum, in fending off Real Parties’ claims to fees\r\nand costs of suit, obtaining writ compliance (2019), and in making the instant\r\nfee motion. Such costs could not have\r\nbeen included in Petitioners’ fee motion or cost memorandum and do not\r\nconstitute fees incurred in enforcing the 2018 fee and cost orders. Reply at 3-4.

\r\n\r\n

Angel Law’s fee motion was filed on September 12, 2018 and\r\nthe reply was filed on October 2, 2018. \r\nThese dates necessarily mean that Petitioners’ fee motion did not seek\r\nrecovery of fees for attorney time spent on preparing to oppose Real Parties’\r\nfee motion, the opposition filed on November 26, 2018 to the joint motion to\r\ntax costs, and the reply filed on November 29, 2018 to Real Parties’ opposition\r\nto Petitioners’ motion to strike their cost memorandum. Nor do they include the time for appearing at\r\nthe December 6, 2018 hearing on the two cost-related motions.[1]

\r\n\r\n

Real Parties argue that, while Petitioners contend that the\r\npolicy for section 1021.5 supports their entitlement to post-judgment fees,\r\nnone of the cited cases involved fees for post-judgment trial court\r\nproceedings. See Serrano v.\r\nUnruh, supra, 32 Cal. 3d at 636 (fees on appeal); Los Angeles\r\nPolice Protective League v. City of Los Angeles, (1986) 188 Cal. App. 3d 1,\r\n5 (same); Cal. Trout, Inc. v. Superior Ct., (1990) 218 Cal.App.3d 187,\r\n213 (directing trial court to determine fees incurred in appellate writ\r\nproceeding); See Nat’l Parks & Conservation Assn. v. Cnty. of\r\nRiverside, (2000) 81 Cal. App. 4th 234, 242 (petitioner not entitled to\r\nfees for unsuccessful challenge to county’s return EIR but may be entitled to\r\nfees for services to ensure the return EIR addressed original EIR’s\r\ndeficiencies). RPI Opp. at 8.

\r\n\r\n

This issue is the timing of Petitioners’ motion. A noticed motion for attorney’s fees up to\r\nthe rendition of judgment must be filed within the time for filing a notice of\r\nappeal. CRC 3.1702(b)(1). The motion is “almost always” filed after\r\nentry of judgment because until then there is no prevailing party and parties\r\nmay still incur additional fees. Saben,\r\nEarlix & Assocs. v. Fillet, (2008) 134 Cal.App.4th 1024,\r\n1029-31. A notice of appeal does not\r\naffect a motion for attorney’s fees; they are a collateral issue unaffected by\r\nthe filing of a notice of appeal. Bankes\r\nv. Lucas, (1992) 9 Cal.App.4th 365, 368 (attorney’s fees may be\r\nsought in opposing post-judgment motion for new trial). As such, a notice of appeal does not prevent\r\nthe trial court from determining an award of attorney’s fees claimed as costs. Id. \r\nIn fact, a post-judgment award of attorney’s fees may be subsumed within\r\nan earlier filed appeal. Id.\r\n(citing Grant v. List & Lathrop, (1992) 2 Cal.App.4th 993,\r\n997.

\r\n\r\n

Petitioners provide no authority for the converse -- that\r\nis, that they may fail to seek post-judgment attorney’s fees in the trial court\r\nafter the notice of appeal has been filed and then wait more than two years until\r\nthe judgment is affirmed to seek those additional trial court fees.

\r\n\r\n

Real Parties rely on Conservatorship of McQueen, (“McQueen”)\r\n(2014) 59 Cal.4th 602, 608, contending that all post-judgment fees\r\nare considered enforcement fees. Opp. at\r\n8. McQueen states that there are\r\nthree types of costs and attorney’s fees: (1) pre-judgment costs, including\r\nattorney’s fees under CCP section 1033.5(a)(10), which are recoverable under\r\nthe procedures in CCP section 1034(a) and CRC 3.1700 and 3.1702(b); (2) appellate\r\ncosts and attorney’s fees recoverable under CCP section 1034(b) and CRC 3.1702\r\nand 8..278, and (3) post-judgment enforcement costs and fees recoverable under\r\nthe Enforcement of Judgments Law, specifically CCP sections 685.040 and\r\n685.095. Id. at 608. McQueen held that attorney’s fees\r\nincurred on appeal are not enforcement fees governed by the Enforcement of Judgements\r\nLaw. Id. Real Parties’ contend that Petitioners’\r\npost-judgment fees are enforcement fees.

\r\n\r\n

The post-judgment fees incurred by Angel Law from October\r\n11, 2018 through December 17, 2018 are enforcement of judgment costs. Any motion for enforcement of judgment costs\r\nmust be filed by noticed motion before the judgment is satisfied and not later\r\nthan two years after they were incurred. \r\nCCP §685.080(a). Although the\r\njudgment has not been fully satisfied, Petitioners have not met the two-year\r\ndeadline because the motion was filed on July 9, 2021, more than two years\r\nafter they were incurred.

\r\n\r\n

The court will reduce the lodestar by the amount incurred by\r\nAngel Law from October 11, 2018 through December 17, 2018.[2]

\r\n\r\n

\r\n\r\n

c. Enforcement of the Writ Between January 14 and\r\nMarch 19, 2019

\r\n\r\n

Petitioners seek fees for enforcement of the writ between\r\nJanuary 14 and March 19, 2019. The same\r\nanalysis applies to the enforcement of writ fees. They were incurred no later than March 19,\r\n2019, more than two years before the July 9, 2021 motion. The court will reduce the lodestar by the\r\namount incurred by Angel Law between January 14 and March 19, 2019.

\r\n\r\n

\r\n\r\n

d. Enforcement of\r\nthe Fee Award Between February 18 and June 14, 2021

\r\n\r\n

Petitioners seek\r\nfees for enforcement of the fee award after appeal. The City and Real Parties do not opposed\r\nentitlement to these fees.

\r\n\r\n

\r\n\r\n

e. Fees for this\r\nFee Motion and on Appeal

\r\n\r\n

Petitioners seek\r\nfees for their fee motion. Real Parties\r\ndo not oppose Petitioners’ entitlement to these fees, only the amount.

\r\n\r\n

\r\n\r\n

2. Reasonableness\r\nof Fees

\r\n\r\n

The court employs the\r\nlodestar method when looking to determine the reasonableness of an attorney’s\r\nfee award. The lodestar figure is\r\ncalculated by multiplying the number of hours reasonably spent by the\r\nreasonable market billing rate. Serrano\r\nv. Priest, (“Serrano”) (1977) 20 Cal.3d 25, 48.

\r\n\r\n

\r\n\r\n

a. Reasonableness\r\nof Rates

\r\n\r\n

Generally, the reasonable hourly rate used for the lodestar\r\ncalculation is the rate prevailing in the community for similar work. Center for Biological Diversity v. County\r\nof San Bernardino, (2010) 188 Cal.App.4th 603, 616. In making its calculation, the court may rely\r\non its own knowledge and familiarity with the legal market, as well as the\r\nexperience, skill, and reputation of the attorney requesting fees, the\r\ndifficulty or complexity of the litigation to which that skill was applied, and\r\naffidavits from other attorneys regarding prevailing fees in the community and\r\nrate determinations in other cases. 569\r\nEast County Boulevard LLC v. Backcountry Against the Dump, Inc., (2016)\r\n6 Cal.App.5th 426, 437.

\r\n\r\n

Petitioners request an hourly billing rate for appellate\r\nwork of $750 for Angel, $350 for Raskin, $275 for Nimmer, and $250 for McManus. Angel Decl., Ex. 12. Real Parties assert that all the requested\r\nrates are inflated but only address Angel’s fees.

\r\n\r\n

Real Parties argue\r\nthat Angel’s rate must be fixed at $650 an hour because the court and the Court\r\nof Appeal already affirmed this rate. \r\nRPI Opp. at 11. Petitioners are\r\nprecluded from seeking a higher rate because the law of the case fixes Angel’s\r\nrate at $650 per hour. Real Parties\r\ncorrectly note that when an appellate court states in its opinion a\r\nprinciple or rule of law necessary to the decision, that principle or rule\r\nbecomes the law of the case and must be adhered to throughout its subsequent\r\nprogress. Swanson v. Marley-Wylain\r\nCo., (2021) 65 Cal.App.5th 1007. RPI\r\nOpp. at 11-12, n.10.

\r\n\r\n

The appellate court’s decision only fixes Angel’s hourly\r\nrate for the work conducted in the trial court in relation to the initial fee\r\naward. Angel seeks compensation at a\r\nhigher rate for his appellate work, which was not the subject of the appellate\r\ncourt’s decision. Angel is not precluded\r\nfor seeking a higher rate for work conducted after the initial fee award. The court accepts the rates sought for Angel,\r\nRaskin, Nimmer, and McManus.

\r\n\r\n

\r\n\r\n

b. Reasonableness\r\nof Number of Hours

\r\n\r\n

An\r\nattorney’s fee award should ordinarily include compensation only for all the\r\nhours reasonably spent on the litigation. \r\nKetchum v. Moses, (2001) 24 Cal.4th 1122, 1133. The trial court must carefully review\r\nattorney documentation of hours expended and eliminate padding in the form of\r\ninefficient or duplicative efforts. Id.\r\nat 1132.

\r\n\r\n

\r\n\r\n

i. Appellate Briefs

\r\n\r\n

Real Parties argue that Petitioners incurred an unreasonable\r\nnumber of hours preparing their appellate briefs. RPI Opp. at 12. Petitioners’ time records reflect that Angel spent\r\n179 hours on Petitioners’ appellate brief. \r\nAngel Decl., Ex. 11. Of this, 26\r\nhours was spent on an Amended Respondents Brief which appears to be the result\r\nof the appellate court’s rejection of the initial brief as oversized. RPI Opp. at 12; Angel Decl., Ex. 11.

\r\n\r\n

Real Parties assert that the appeal was straightforward because\r\nPetitioners were simply required to rework their attorney’s fee motion into an\r\nappellate brief. Angel Law has\r\nsignificant experience in the recovery of fee awards and 179 hours is excessive\r\ngiven the level of experience. Real\r\nParties also argue that they should not be penalized for Petitioners’ error in\r\npreparing on oversized brief. RPI Opp.\r\nat 12-13.

\r\n\r\n

Petitioners dispute that the hours were excessive or\r\nduplicative. Reply at 7-8. Real Parties’ main argument on appeal framed\r\nan issue not briefed in the trial court -- that the court employed a flawed\r\nmethodology to arrive at a predetermined number. Reply at 8. \r\nThis issue required careful analysis of the reporter’s transcript and\r\nthe trial court fee decision. Id. Appellate work is not simply a re-tooling of\r\ntrial court documents and requires significant time and effort. Reply at 8. \r\nAn award of attorneys’ fees should not be reduced simply on the ground\r\nthat appeal work involves some duplicative work; appellate work is not simply\r\nthe recycling of trial court work. See\r\nCenter for Biological Diversity v. County of San Bernardino, (2010)\r\n188 Cal.App.4th 603, 620.

\r\n\r\n

While the court recognizes that an attorney’s appellate work\r\nrequires careful effort, 153 hours is an excessive amount of time for\r\nPetitioners’ counsel to spend on an appellate brief, especially given his level\r\nof experience. Petitioners also do not\r\ndispute that the need for an amended appellate brief was due to their counsel’s\r\nerror and Real Parties should not be penalized for Petitioners’ error in filing\r\nan oversized brief.

\r\n\r\n

Petitioners’ hours spent on their appellate briefs will be\r\nreduced by 79 hours to 100 hours. At\r\nAngel’s requested rate of $750 per hour, this results in a total reduction of $59,250.

\r\n\r\n

\r\n\r\n

ii. Motion to\r\nStrike

\r\n\r\n

Real Parties assert that Petitioners are not entitled to any\r\naward for time spent preparing their Motion to Strike, which was\r\nfrivolous. The appellate court denied\r\nthe motion, which was based on a 75-year-old case superseded by the California Rules\r\nof Court and cited no legal basis for which a court could strike an appellate\r\nbrief. Id. Petitioners’ motion to strike was unsupported\r\nin law and served no purpose. RPI Opp.\r\nat 13.

\r\n\r\n

The court disagrees that the motion was frivolous. As Petitioners correctly state (Reply at 9),\r\nthe fact that the appellate court denied the motion is not determinative and\r\nReal Parties fail to establish that Petitioners should have known that it had\r\nno legal basis. The fact that\r\nPetitioners did not ultimately prevail does not demonstrate that it was frivolous.

\r\n\r\n

\r\n\r\n

iv. Request for\r\nPublication

\r\n\r\n

Real Parties assert that Petitioners may not recover for\r\npreparing and filing a request for publication, which the appellate court denied. RPI Opp. at 13.

\r\n\r\n

The court agrees that Real Parties and Respondents should\r\nnot be responsible for the unsuccessful request for publication. Petitioners only assert that the fees for the\r\nrequest for publication should not be disallowed because it was not frivolous,\r\nbut this does not address Real Parties’ point that they should not have to pay\r\nfor Petitioners to seek a published opinion. \r\nReply at 9, n.7. The lodestar\r\nwill be reduced by $3,180, the amount Petitioners incurred at Angel’s rate of\r\n$750 per hour. Angel Decl., Ex. 11.

\r\n\r\n

\r\n\r\n

v. Fees for the Attorney’s\r\nFee Motion

\r\n\r\n

Petitioners seek $34,410 in fees for bringing the instant\r\nmotion. Mot. at 2. Real Parties note that Petitioners sought\r\nthis same amount for time spent on their 2018 fee motion and contend it is\r\nexcessive. They argue that the motion is\r\nalmost identical to the 2018 fee motion and Angel’s supporting declaration is\r\nsimilarly nearly identical. Give that\r\nPetitioners only needed to make minor adjustments to their motion and\r\nsupporting documents, an award of the same amount is unreasonable. RPI Opp.\r\nat 17. Petitioners do not address this\r\nargument.

\r\n\r\n

A comparison of the instant motion with the 2018 motion\r\n(Spurling Decl., Ex. E) supports Real Parties’ argument that the memoranda bear\r\nsignificant similarities. Nonetheless,\r\nthe instant motion consists of declarations and exhibits in addition to the\r\nmemorandum. The $34,410 sought is not\r\nunreasonable, and the court will not reduce the amount requested for the\r\ninstant motion.

\r\n\r\n

\r\n\r\n

vi. Reduction for\r\nPartial Success

\r\n\r\n

A trial court may reduce attorney fees based on the\r\nplaintiff’s degree of success. A reduced\r\nfee award is appropriate if the relief, however, significant, is limited in\r\ncomparison to the scope of the litigation as a whole. Save Our Uniquely Rural Community\r\nEnvironment v. County of San Bernardino, (2015) 235 Cal.App.4th 1179,\r\n1185; see also Laurel Heights\r\nImprovement Assn. v. Regents of University of California, (1988) 47\r\nCal.3d 376, 428, n.29 (noting that trial could should consider the fact that\r\nappellant, a successful party, was ultimately unsuccessful in its challenge to\r\nagency’s finding of mitigation). The\r\nCalifornia Supreme Court has instructed, however, that attorney fee awards\r\nunder section 1021.5 should be fully compensatory and, absent circumstances\r\nrendering the award unjust, should ordinarily include compensation for all\r\nhours reasonably spent. Center for\r\nBiological Diversity v. County of San Bernardino, supra, 188\r\nCal.App.4th at 612.

\r\n\r\n

Real Parties argue that the lodestar amount must be reduced by\r\n20% to reflect the limited nature of Petitioners’ success on their CEQA claims\r\nbecause the court previously found, and the Court of Appeal affirmed, that a\r\n20% reduction was appropriate. RPI Opp.\r\nat 13-14.

\r\n\r\n

Real Parties improperly conflate Petitioners’ degree of\r\nsuccess in their underlying claim with their success on appeal. The appeal only challenged the attorney’s\r\nfees award and Petitioners were completely successful. Petitioners’ degree of success on their CEQA\r\nclaims is not at issue in examining their success in the appellate\r\nprocess. No reduction for partial\r\nsuccess is warranted.

\r\n\r\n

\r\n\r\n

3. Fee Enhancement

\r\n\r\n

A trial court may adjust the lodestar upward or downward\r\nusing a multiplier. Ketchum v. Moses,\r\n(2001) 24 Cal.4th 1122, 1132. The\r\nfactors to consider for a multiplier include: (1) the novelty and difficulty of\r\nthe questions involved, and the skill displayed in presenting them; (2) the\r\nextent to which the nature of the litigation precluded other employment by the\r\nattorneys; (3) the contingent nature of the fee award, both from the point of\r\nview of eventual victory on the merits and the point of view of establishing\r\neligibility for an award; (4) the fact that an award against the state would\r\nultimately fall upon the taxpayers; (5) the fact that the attorneys in question\r\nreceived public and charitable funding for the purpose of bringing law suits of\r\nthe character here involved; (6) the fact that the monies awarded would inure\r\nnot to the individual benefit of the attorneys involved but the organizations\r\nby which they are employed; and (7) the fact that in the court's view the two\r\nlaw firms involved had approximately an equal share in the success of the\r\nlitigation. Serrano v. Priest,\r\n(1977) 20 Cal.3d 25, 48-49.

\r\n\r\n

Petitioners request a multiplier of 1.2, applied only to the\r\n$103,525.83 lodestar of fees for Angel Law’s work on the appeal. Mot. at 16-17.

\r\n\r\n

\r\n\r\n

a. Novelty and Difficulty of Questions Involved

\r\n\r\n

Petitioners contend that Angel’s hourly market rates of $650\r\nin 2018 and $750 in 2019-2021 are not fully compensatory given his level of\r\nexperience with CEQA litigation and do not account for his specialized\r\nskills. Mot. at 17. Nor do the rates for attorneys Nimmer and\r\nRaskin and paralegal McManus fully reflect market value. Id. \r\nA 1.2 multiplier corrects these disparities and effectuates the economic\r\nequalization purpose of CCP section 1021.5. \r\nId.

\r\n\r\n

As Real Parties persuasively argue, the attorney’s fee appeal\r\ndid not involve any novel or complex questions or issues of public importance;\r\nit only concerned Petitioners’ fees. RPI\r\nOpp. at 15. Petitioners’ argument that their\r\nfees are not fully compensated is immaterial to this factor.

\r\n\r\n

\r\n\r\n

b. Contingency Nature of Fee Award

\r\n\r\n

“A lawyer who both\r\nbears the risk of not being paid and provides legal services is not receiving\r\nthe fair market value of his work if he is paid only for the second of these\r\nfunctions. If he is paid no more, competent counsel will be reluctant to accept\r\nfee award case.” Ketchum v. Moses,\r\n(2001) 24 Cal.4th 1122, 1133 (quoting Leubsdorf, The Contingency Factor in\r\nAttorney Fee Awards (1981) 90 Yale L.J. 473, 480).

\r\n\r\n

Petitioners note\r\nthat Angel Law received no compensation for the work it has provided on\r\nappeal; Angel Law received no fee compensation from Petitioners for any time\r\nincurred after October 9, 2018. Mot. at\r\n17.

\r\n\r\n

Real Parties correctly note that a fee-on-fee motion is not\r\ncontingent in nature because the moving party has already been declared the\r\nprevailing party. See Graham,\r\nsupra, 34 Cal.4th at 583. \r\nThe fee appeal vindicated merely Petitioners’ counsel’s right to fees\r\nand involved no contingency risk. An\r\naward of fees is no longer contingent and does not justify a fee enhancement\r\nafter a party has prevailed on the motion. \r\nKetchum v. Moses, (2001) 24 Cal.4th 1122, 1142. RPI Opp. at 15.

\r\n\r\n

While Petitioners rely on Graham, supra, 34\r\nCal.4th at 553, to argue that enhancement is appropriate when the unsuccessful\r\nparty engages in prolonged or unreasonable fee litigation (Mot. at 16),\r\nRespondents’ unsuccessful appeal does not constitute unreasonable fee\r\nlitigation. This factor does not support\r\napplication of a multiplier.

\r\n\r\n

\r\n\r\n

c. Award Falling on Taxpayers

\r\n\r\n

Petitioners argue that,\r\nunlike most other private attorney general cases, the burden of this fee award\r\nis unlikely to fall on City taxpayers because of the indemnification agreement\r\nobligating Real Parties to recompense the City for any attorneys’ fee awarded\r\nin this action. Mot. at 17; Reply at\r\n10-11. Petitioners have also asked that\r\nthe City’s joint and several liability for any award be limited to\r\n$50,000. Id.

\r\n\r\n

Real Parties assert that\r\nthe burden will fall on taxpayers because the City will make the payment for\r\nany award. RPI Opp. at 15. Real Parties do not discuss the indemnity\r\nissue or why the City will lose the litigation between them such that the\r\ntaxpayers will bear the cost of award. This\r\nfactor does not weigh against a multiplier.

\r\n\r\n

\r\n\r\n

d. Charitable Funding

\r\n\r\n

Petitioners’ law firm has received no public or charitable\r\nfunding for any of the legal work for which they seek attorney’s fee\r\ncompensation. Angel Decl., ¶46.

\r\n\r\n

\r\n\r\n

e. To Whom the Award Inures

\r\n\r\n

Real Parties note\r\nthat the fee award will inure to Angel Law, which has no agreement to share the\r\naward with any public interest law firm. \r\nGiven that Angel Law has just collected nearly a million dollars\r\nin fees, the risk of further windfall to Angel Law cautions strongly against a\r\nmultiplier. RPI Opp. at 16.

\r\n\r\n

\r\n\r\n

f. Conclusion

\r\n\r\n

Petitioners have not\r\ndemonstrated that they are entitled to a multiplier for their appellate work\r\nand the request for a multiplier of 1.2 is denied.

\r\n\r\n

\r\n\r\n

4. Whether the Fee Award Must be Joint and Severable

\r\n\r\n

The parties dispute whether any fee award must be joint and\r\nseveral against Real Parties and the City. \r\nPetitioners request that any award only be joint and several against\r\nReal Parties and the City in the amount of $50,000 because the City alone paid\r\nthe previous fee award ($683,866.30) and the costs of suit ($82,179.33) awarded\r\nby the court’s October 9 and December 6, 2018 fee and cost orders, and the\r\ninterest required by law from a public agency ($91,817.44). Mot. at 3; Reply at 11-12.

\r\n\r\n

The City agrees that the award should not be made fully\r\njoint and several on it, noting that the $50,000 requested by Petitioners\r\nreflects the fact that Petitioners spent far less time addressing the\r\nCity-specific issues on appeal. Yet, even\r\na $50,000 joint and several award against the City would be inequitable. City Opp. at 4. The City paid the fees, costs, and interest\r\ntotaling $857,862.96 without waiving any right to indemnity against Real\r\nParties and an award of the entire fee jointly and severally against the City\r\nwould be contrary to public policy as the burden would fall upon\r\ntaxpayers. City Opp. at 5-6.

\r\n\r\n

Real Parties contend that the entire award must be joint and\r\nseveral against the City and Real Parties because both the court and the Court\r\nof Appeal already found that the judgment should be assessed jointly and severally. RPI Opp. at 17. The City and Real Parties are currently\r\ninvolved in litigation to determine, in part, who is ultimately responsible for\r\nthese and other expenses for the Waterfront Project. RPI Opp. at 18.

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The court agrees with Real Parties. Petitioners and the City provide no legal support\r\nfor their argument that Real Parties should be responsible for a greater\r\nportion of any award simply because the City stepped forward and paid the judgment,\r\nincluding its rate of interest. Both courts\r\npreviously rejected the contention that only Real Parties should be liable and\r\nthere is no reason to change that conclusion here. The treatment\r\nof section 1021.5 obligations as joint and several is consistent with the\r\nstatute’s purpose and reduces the risk of collection problems and the issues surrounding\r\nthe indemnification agreement between the City and Real Parties are not\r\npertinent to the court’s equitable allocation of the award. See Friends\r\nof the Trails v. Blasius, (2000) 78 Cal.App.4th 810, 838. Petitioners are not required to collect\r\nthe full amount from the City and they can choose to collect only $50,000 if\r\nthey wish. The City and Real Parties can\r\nsettle the issues of indemnification and fee apportionment through their own\r\nlitigation.

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E. Conclusion

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Petitioners’\r\nmotion for attorney’s fees is granted in the amount of $103,525.83. Real\r\nParties and the City are jointly and severally for payment of this sum. This sum is separate from the interest owed\r\nby Real Parties, which Petitioners calculated as $105,268.12 as of May\r\n14, 2021.

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[1]\r\nReal Parties point out that Petitioners have already been compensated in the\r\namount of $34,410 for their anticipated time spent on their trial court fee and\r\ncost motions. RPI Opp. at 9 (citing\r\nAngel Decl., Ex. 3, p. 15-16). These\r\nfees were for Petitioners’ fee motion, not fending off Real Parties’ motions.

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[2]\r\nPetitioners incorrectly state that the appeal was filed on December 17 instead\r\nof December 7, 2018

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