On 07/11/2016 CITY OF BALDWIN PARK filed an Other - Writ Of Mandamus lawsuit against CITY OF IRWINDALE. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judge overseeing this case is TORRIBIO, JOHN A.. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
TORRIBIO, JOHN A.
BALDWIN PARK CITY OF
CITY OF BALDWIN PARK
DOES 1 - 10
IRWINDALE CITY OF
CITY COUNCIL OF THE CITY OF IRWINDALE
CITY OF IRWINDALE
PLANNING COMMISSION OF THE CITY OF
SUCCESSOR AGENCY TO IRWIN. COMM. REDEVELP
OVERSIGHT BOARD OF THE SUCCESSORY AGENCY
ROES 11 - 20
ARAKELIAN ENTERPRISES INC.
ARAKELIAN ENTERPRISES DBA ATHENS SERVICES
DE FELICE DIANE C.
BROWNSTEIN HYATT FARBER SCHRECK LLP
DEFELICE DIANE CATHERINE
ALESHIRE & WYNDER LLP
MALAWY JEFFREY MICHAEL
OSAKI KELI NICOLE
3/13/2018: Minute Order
4/24/2018: Minute Order
5/1/2018: NOTICE OF RULING ON NOTICE OF RELATED CASE
6/5/2018: Minute Order
2/22/2019: Notice of Lodging
7/11/2016: VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
7/11/2016: PROOF OF SERVICE ON NOTICE OF INTENTINOTICE OF COMMENCEMENT OF CEQA ACTION
7/20/2016: PROOF OF SERVICE SUMMONS
9/26/2016: NOTICE OF COURT'S ORDER RELATING CASE NUMBERS BS163400 AND BS163450; TRANSFER AND REASSIGNMENT OF CASES TO DEPARTMENT 82 AND NOTICE OF NEW TRIAL SETTING CONFERENCE DATE
10/13/2016: Minute Order
1/31/2017: NOTICE OF ENTRY OF ORDER ON STIPULATION TO (1) FURTHER STAY CASES UNTIL JUNE 26, 2017, AND (2) CONTINUE TRIAL SETTING C ONFERENCE
10/5/2017: NOTICE OF ACTION TO RESPONSIBLE AGENCIES
Notice of Lodging (City of Baldwin Park's Notice of Lodging of Joint Appendix of Administrative Record (AR) Cites); Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)Read MoreRead Less
Response (City of Baldwin Park's Response to Respondent's and Real Party in Interest's Objections to Petitioner City of Baldwin Park's Incorporation of Arguments by Reference); Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)Read MoreRead Less
Notice of Lodging (City of Baldwin Park's Notice of Lodging of Trial Notebook); Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)Read MoreRead Less
Objection (RESPONDENTS? AND REAL PARTY IN INTEREST?S OBJECTIONS TO PETITIONER CITY OF BALDWIN PARK?S INCORPORATION OF ARGUMENTS BY REFERENCE); Filed by ARAKELIAN ENTERPRISES DBA ATHENS SERVICES (Real Party in Interest)Read MoreRead Less
Proof of Service by Mail; Filed by Irwindale, City of (Defendant)Read MoreRead Less
Notice of Lodging (City of Baldwin Park's Notice of Lodging of Waste Management's Reply Brief and Supporting Documents); Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)Read MoreRead Less
Request for Judicial Notice; Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)Read MoreRead Less
Reply (PETITIONER CITY OF BALDWIN PARK'S REPLY BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE); Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)Read MoreRead Less
Notice of Lodging (NOTICE OF LODGING); Filed by Irwindale, City of (Defendant)Read MoreRead Less
Request for Judicial Notice; Filed by Athens Services (Real Party in Interest); CITY COUNCIL OF THE CITY OF IRWINDALE (Respondent); CITY OF IRWINDALE (Respondent)Read MoreRead Less
Proof of Service (ON NOTICE OF INTENT/COMMENCEMENT OF CEQA ACTION ); Filed by Attorney for PetitionerRead MoreRead Less
Notice (TO ATTY GENERAL RE CEQA ACTION ); Filed by Attorney for PetitionerRead MoreRead Less
Petition; Filed by nullRead MoreRead Less
Summons Filed; Filed by Attorney for PetitionerRead MoreRead Less
SUMMONS PETITIONRead MoreRead Less
Notice; Filed by PetitionerRead MoreRead Less
Proof of Service (not Summons and Complaint); Filed by PetitionerRead MoreRead Less
Notice; Filed by PetitionerRead MoreRead Less
Summons; Filed by PetitionerRead MoreRead Less
PROOF OF SERVICE ON NOTICE OF INTENTINOTICE OF COMMENCEMENT OF CEQA ACTIONRead MoreRead Less
Case Number: BS163400 Hearing Date: August 20, 2020 Dept: 82
City of Baldwin Park,
v. City of Irwindale, et al., Respondents
Arakelian Enterprises, Inc. dba Athens Services, Real Party in Interest
[Consolidated with BS171622]
[Related to BS163450 and BS171509]
Judge Mary Strobel
Hearing: August 20, 2020
Petitioner City of Baldwin Park (“Baldwin Park” or “Petitioner”) moves for an award of attorney’s fees pursuant to CCP section 1021.5 against Respondent City of Irwindale (“Irwindale”) and Real Party in Interest Arakelian Enterprises, Inc. dba Athens Services (“Athens”) (collectively “Respondents”) in the total amount of $1,259,496.
Requests for Judicial Notice
Petitioner’s RJN Exhibit K – Granted. (Evid. Code § 452(d).) Respondents’ objection is overruled. The request for dismissal from the PRA litigation is relevant to Petitioner’s contention that Respondents’ litigation tactics drove up the costs of the instant lawsuit challenging the Project’s environmental review and approvals.
Petitioner’s RJN Exhibit Y – Granted. (Evid. Code § 452(d).)
Respondents’ RJN Exhibits 1, 2 – Granted. (Evid. Code § 452(b), § 452(h).) Petitioner’s objection is overruled. Respondents make a sufficient showing that these documents have relevance, as circumstantial evidence, to the question of whether Petitioner had a financial stake in the litigation.
Respondents’ Evidentiary Objections and Motion to Strike Portions of the Declaration of Diane C. De Felice
(1) – (19) Overruled.
On July 11, 2016, Baldwin Park filed its verified petition for writ of mandate and complaint for declaratory and injunctive relief in BS163400, challenging Irwindale’s June 2016 approval of the DDA and EIR. On November 15, 2017, Baldwin Park filed its verified petition for writ of mandate in BS171622 challenging Irwindale’s October 2017 approval of the land use approvals and EIR Addendum. BS163400 and BS171622 have been consolidated.
On July 8, 2016, in a separate action, Waste Management filed its verified petition for writ of mandate and complaint for injunctive relief in BS163450, challenging Irwindale’s June 2016 actions. On November 15, 2017, Waste Management filed its verified petition for writ of mandate in BS171509 challenging Irwindale’s October 2017 actions. BS163450 and BS171509 have been consolidated.
All four cases have been related.
The court received Baldwin Park’s opening brief, Waste Management’s opening brief, Respondents’ joint opposition, Baldwin Park’s reply, Waste Management’s reply, the joint appendix, and the administrative records.
The court held the first hearing on the merits on July 16, 2019. The court held a second hearing on the merits on August 22, 2019.
On September 5, 2019, the court issued its final statement of decision (hereafter “Decision”). (See De Felice Decl. Exh. L.) The Decision provides a detailed discussion, which is not repeated here, of the Factual and Procedural Background related to the Project, Irwindale’s environmental review and land use approvals, and the court’s analysis of Petitioners’ CEQA and non-CEQA claims.
Baldwin Park submitted a proposed judgment, which Respondents opposed. On October 17, 2019, the court held a hearing on the Proposed Judgment and overruled Respondents’ objections. The Court then entered Judgment in Baldwin Park’s favor, finding: “the EIR’s project description and analysis is inadequate as to truck fueling operations, the EIR does not sufficiently analyze transportation energy impacts, the EIR does not sufficiently analyze the health risks associated with the Project’s emissions of ROG, NOx and ozone, or explain why this analysis would be infeasible, and the EIR does not sufficiently analyze greenhouse gas emissions (‘GHG’) or the effectiveness of AQ-22 in reducing GHG emissions to less than significant….”
On October 21, 2019, the court issued a Peremptory Writ of Mandate, ordering Irwindale to set aside, among other things, the FEIR, the Addendum, the DDA and the Land Use Approvals, and to take all steps necessary to bring the EIR into compliance with CEQA. (See De Felice Decl., ¶ 69, Exh. N, Peremptory Writ of Mandate, pp. 1-2.) Irwindale filed its Returns to the Writ of Mandate in December 2019 and January 2020, confirming that it had vacated the certification of the FEIR and the other Project approvals. (Id. ¶¶ 76-77.)
On January 27, 2020, Baldwin Park filed its motion for attorney’s fees. The court has received Respondents’ opposition and Baldwin Park’s reply.
An award of attorney fees is appropriate “to a successful party … in any action which has resulted in the enforcement of an important right affecting the public interest.” (CCP § 1021.5.) The three factors necessary to support an award of attorney fees to a successful party pursuant to section 1021.5 are: “(1) [the] action has resulted in the enforcement of an important right affecting the public interest,’ (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate.” (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)
“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 [plaintiff was the “successful” party where the Court invalidated some, but not all, of the city’s approvals of a project].)
“In assessing whether a party is a successful party, a ‘broad, pragmatic view’ is applied.” (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 649.) Baldwin Park need only “succeed on any significant issue in litigation which achieves some of the benefit [it] sought in bringing suit.” (RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 783.)
Baldwin Park is the “successful party” in this litigation because it achieved its primary objective — the Judgment overturns the certification of the FEIR, the approval of the DDA, the approval of the Addendum, and the Land Use Approvals. The Judgment also prevents Irwindale from proceeding with the Project until the required CEQA analysis has been completed.
Enforcement of Important Right Affecting the Public Interest
“The first prong of the section 1021.5 test … requires a determination of ‘the ‘strength’ or ‘societal importance’ of the right involved. That right may be constitutional or statutory, but it must be ‘an important right affecting the public interest’—it ‘cannot involve trivial or peripheral public policies.’ Where, as here, the right vindicated is conferred by statute, ‘courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals.’” (Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1148.)
Courts have recognized that lawsuits enforcing the policies and provisions of CEQA involve important rights affecting the public interest. (See e.g. Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 892-93 [lawsuit forcing county to consider alternative mitigation measures and reanalyze impacts furthered an important public right]; Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 291 [lawsuit compelling city to reconsider flaws in EIR enforced an important public interest].)
This action enforced important environmental and related statutory rights, policies, and legislative goals reflected in CEQA. These rights affect the public interest. Respondents make no argument to the contrary.
Significant Public Benefit Conferred on General Public or a Large Class of Persons
To obtain an award under Code of Civil Procedure section 1021.5, a party must also show that its action conferred a significant public benefit on the general public or on a large class of persons. A significant benefit may be pecuniary or non-pecuniary and need not be concrete to support a fee award. (Braude v. Automobile Club of Southern California (1986) 178 Cal.App.3d 994, 1013.)
“The trial court determines the significance of the benefit, and the group receiving it, ‘from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case. The courts are not required to narrowly construe the significant benefit factor. ‘The ‘extent of the public benefit need not be great to justify an attorney fee[s] award.’ And fees may not be denied merely because the primary effect of the litigation was to benefit the individual rather than the public.” (Indio Police Command Unit Association v. City of Indio (2014) 230 Cal.App.4th 521, 543.)
Courts have also recognized that CEQA actions “requiring a governmental agency to analyze or reassess environmental impacts associated with a project confer a significant benefit.” (Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 738.) Where plaintiffs successfully overturn certification of an EIR on the grounds that the project’s impacts are inadequately analyzed, a significant impact may be conferred on the general public. (See Center for Biological Diversity, supra, 185 Cal.App.4th at 894-95.)
As discussed in the court’s Decision, the Project is a material recovery facility and transfer station (MRF/TS), and convenience store/fueling station. (AR 3452, 8049.) The Project will operate 24 hours per day, 7 days per week, and is expected to process up to a maximum of 6,000 tons of waste per day (“tpd”). (AR 3454, 3460.) Each day there will be approximately 2,456 truck trips, 345 employee trips, and 751 fueling station trips entering and exiting the site. (AR 3810.)
The Project Site abuts the City of Baldwin Park on its southern border. (AR 3448-50.) The Project Site is approximately 325 feet north of a large residential neighborhood in Baldwin Park, and 480 feet from the Santa Fe Dam bike/pedestrian path. Eight schools are located within 4,500 feet of the Project Site, the closest of which – Margaret Heath Elementary – is within 1,370 feet. (AR 3556, 3717.) The Project Site is located within the South Coast Air Basin (“Basin”). “Basin climate increases the potential to create air pollution problems. Air quality within the Basin generally rates from fair to poor.” (AR 3536.)
In summary, the court found, based on arguments made by Baldwin Park, that “the EIR’s project description and analysis is inadequate as to truck fueling operations, the EIR does not sufficiently analyze transportation energy impacts, the EIR does not sufficiently analyze the health risks associated with the Project’s emissions of ROG, NOx and ozone, or explain why this analysis would be infeasible….” (See Judgment; see also Decision at 11-14, 15-20.)
Baldwin Park’s success conferred a substantial benefit to its residents as well as to the residents of the region served by the Project. As a direct result of the Judgment, Irwindale must generate the missing health risk analysis associated with “the Project’s emissions of ROG, NOx, and ozone” and consider those risks in making its decision on the Project. (De Felice Decl., ¶ 62, Exh. L, Decision at 20.) The court also mandated the correction of faults in the FEIR’s analysis of truck fueling operations and transportation energy impacts — other inherently regional impacts. (Id. at 68, Exh. M, Judgment at 2.) Therefore, by securing Irwindale’s compliance with CEQA, residents of the communities impacted by the Project will benefit from a more in depth CEQA review. (Keep Our Mountains Quiet, supra, 236 Cal.App.4th at 738.)
Respondents’ arguments with respect to the “significant benefit” prong are not persuasive because Respondents misunderstand the benefit at issue. (See Oppo. 10-11.) The Judgment will secure Irwindale’s compliance with CEQA; surrounding communities will benefit from Baldwin Park’s success because Irwindale will be required to fully analyze the environmental impacts of the Project’s truck fueling operations and transportation energy impacts, and the health risks associated with the Project’s emissions of ROG, NOx and ozone. Whether or not the Judgment will result in “fewer miles traveled along the regions’ haul routes” is not determinative. Given the facts outlined above, compliance with CEQA in itself confers a significant benefit on the public and a large class of persons.
Respondents also admit that a CEQA-compliant analysis of truck fueling operations is relevant to the “immediate vicinity of fueling operations.” (Oppo. 10.) As noted above, the Project Site is approximately 325 feet north of a large residential neighborhood in Baldwin Park, and 480 feet from the Santa Fe Dam bike/pedestrian path. Even if the benefit were limited to the “immediate vicinity” of the Project (which it is not), a large class of persons would benefit from the Judgment.
Baldwin Park has shown that its action conferred a significant public benefit on the general public and on a large class of persons.
Necessity and Financial Burden of Private Enforcement
The necessity and financial burden requirement “‘examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party's attorneys.’” (Lyons v. Chinese Hosp. Ass'n (2006) 136 Cal.App.4th 1331, 1348.) As relevant to a fee request by a public entity, CCP section 1021.5 states: “With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities ….” (emphasis added.)
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.) “The successful litigant's reasonably expected financial benefits are determined by discounting the monetary value of the benefits that the successful litigant reasonably expected at the time the vital litigation decisions were made by the probability of success at that time.” (Id. at 155.)
A litigant’s nonpecuniary interests do not affect its eligibility for section 1021.5 fees. (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1217.) This rule applies to both private and public-entity litigants. (City of Maywood v. Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362, 435 [“when assessing this factor in the context of a public entity’s legal victory, the trial court may only consider the public entity’s pecuniary interests and the pecuniary interests of its constituents”].).)
“‘[T]he absence of a monetary award, or of precise amounts attached to financial incentives, does not prevent a court from determining whether the plaintiff's financial burden in pursuing the lawsuit is out of proportion to his individual stake in the matter.’ [Citation.] No abuse in awarding fees can be found where the facts show ‘that the plaintiff's ‘future money advantage ... is speculative’ [citation], or that the plaintiff's' ‘pecuniary benefit will be indirect and uncertain.’” (Sweetwater Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 992; see also Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1128.)
Significantly, “it is the party seeking private attorney general fees who ‘bears the burden of establishing that its litigation costs transcend its personal interest.’” (Norberg v. California Coastal Commission (2013) 221 Cal.App.4th 535, 545-56; see also Luck v. S. Pac. Trans. (1990) 218 Cal.App.3d 1, 30 [same].)
Necessity of Private Enforcement
Here, “private enforcement” was “necessary” because Irwindale failed to ensure compliance with CEQA despite Baldwin Park’s objections. Baldwin Park also notified the Attorney General of its challenges to the Project, but the Attorney General did not intervene in the suit. (July 11, 2016 Notice to Attorney General re CEQA Action Against the City of Irwindale, Et Al. (Case No. BS163400; November 17, 2017 Notice to Attorney General re CEQA Action Against The City of Irwindale, Et Al. (Case No. BS171622).) Respondents make no argument to the contrary.
The Pecuniary Interests of Baldwin Park and its Constituents
Baldwin Park contends that it “did not have a pecuniary interest in this litigation because the remedy it sought was environmental compliance; its stated purpose was to protect public health and safety and avoid further environmental degradation.” (Mot. 10 [emphasis added].) To the extent Baldwin Park equates the remedy it sought with the absence of a pecuniary interest, Baldwin Park makes a false comparison. Baldwin Park could have both sought environmental compliance for non-pecuniary reasons and also had a pecuniary interest in the litigation, either directly or through its constituents (e.g. in preserving property values).
Nonetheless, the court understands Baldwin Park’s argument to be that it had compelling non-pecuniary reasons to litigate this action, which may suggest circumstantially that the necessity for pursuing the lawsuit placed a burden on Baldwin Park “out of proportion” to its financial stake. (See e.g. Heron Bay Homeowners Assn. v. City of San Leandro (2018) 19 Cal.App.5th 376, 393 [affirming fee award, in part, because “the record here contains evidence that Heron Bay HOA and its members were motivated to initiate the CEQA litigation in part by nonpecuniary interests, including concerns about the proposed turbine's potential impact on wildlife, aesthetics, health and noise levels.”].) Here, it may be reasonably inferred from the pleadings and record that Baldwin Park brought this action for non-pecuniary reasons: to obtain compliance with CEQA and, thereby, to protect public health and safety and avoid further environmental degradation of its community. (See e.g. Verified Pet. ¶¶ 1-5; De Felice Decl. ¶¶ 1-2; Carstens Decl. ¶¶ 24-29.)
Respondents contend that Baldwin Park and its residents have a pecuniary interest in “protection of property values.” (Oppo. 12.) In the abstract, Baldwin Park and its constituents have a pecuniary interest in the protection of property values (and any associated property taxes). In theory, a writ compelling further CEQA review of the Project, and thus delaying or even preventing approval and commencement of the Project, could have an impact on property values. However, on this record, any such impact on property values is pure speculation and conjecture. Respondents do not submit or cite any evidence from which the court could quantify such impact, or even determine whether such impact exists or how long it would last. The court notes that the writ does not prevent Irwindale from approving the Project after additional CEQA review.
As discussed below, Baldwin Park submits evidence regarding the substantial financial burden this litigation placed on the city. Because the record provides no basis for the court to conclude that Baldwin Park and its constituents have a quantifiable, non-speculative financial stake, the court concludes that the financial burden was “out of proportion” to any pecuniary interest of Baldwin Park or its constituents, thus making an award of fees appropriate.
Respondents also argue, tersely, that “Baldwin Park has a pecuniary interest in maintaining its favorable monetary relationship with Athens’ direct competitor, Waste Management.” (Oppo. 13; RJN Exh. 1.) Respondents provide no discussion of this franchise agreement and how it purportedly creates a financial stake in this environmental litigation.
Reasonable Amount of Attorney’s Fees
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 Med. Mgmt. Sys. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 560-63.)
The court has discretion to reduce fees that result from inefficient or duplicative use of time. (Horsford, supra at 395.)
Reasonable Hourly Rates
Baldwin Park requests $695/hour for attorney Diane C. De Felice, a shareholder of Brownstein Hyatt Farber Schreck, LLP (“BHFS”) and supervising partner in the firm’s representation of Baldwin Park in this matter. Baldwin Park requests $695/hour for special counsel Diane Matsinger; $425-$450/hour for associates that worked on that case; $225 for a land use planner that assisted in the case; and $225/hour for a paralegal. (See De Felice Decl. ¶¶ 4-6, 8, 79-95, Exh. A, B.) In support of these hourly rates, Baldwin Park relies on the declaration of De Felice; the attached resumes of these attorneys and professionals; and the supporting declaration of attorney Douglas Carstens. (See Id. ¶¶ 79-95, Exh. O-W; Carstens Decl. ¶¶ 3-23.) Based on this evidence about the BHFS’ attorneys’ legal experiences, the supporting Carstens’ declaration, the court’s knowledge and familiarity with the Los Angeles legal market and skill of the attorneys requesting fees, and the difficulty and complexity of this CEQA action, the court concludes that the requested hourly rates are reasonable. Respondents make no argument to the contrary.
Reasonable Number of Hours
Baldwin Park requests $178,877.50 in fees for the administrative phase (January 2015 to June 9, 2016); $691,174.00 in fees for the three year period that began with filing the petition and culminated with briefing the lawsuit (June 10, 2016 to May 21, 2019); and $364,804.50 in fees for the hearing, judgment, and post-judgment phases of the case (May 22, 2019 to December 31, 2019), not including the reply for this fee motion. (See Mot. 12.) In support, Baldwin Park submits a detailed declaration of attorney De Felice and “a chart prepared by BHFS staff at [De Felice’s] direction reflecting all of the time entries contemporaneously recorded by BHFS legal professionals that are claimed in this Motion.” The chart includes redactions for applicable privileges. (De Felice Decl. ¶ 93, Exh. 5; see generally Id. ¶¶ 1-78 [summarizing work]; Id. ¶¶ 79-95 [summarizing staffing of the case by BHFS].)
“While a court has discretion to reduce fees in a CEQA case based on degree of success …, it is, of course, not required to do so.” (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 897.) “Although a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the ... court did not adopt each contention raised ... , a reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole....” (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1185.)
Courts recognize that “a plaintiff might join in one action ‘distinctly different claims for relief that are based on different facts and legal theories….’ Work on an unsuccessful and unrelated claim generally will not be compensable, as it ‘cannot be deemed to have been ‘expended in pursuit of the ultimate result achieved.’” (Environmental Protection Information Center v. Dept. of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 238.) “There is no certain method for determining when claims are related or unrelated, but Hensley ‘instructs the court to inquire whether the ‘different claims for relief ... are based on different facts and legal theories.’ [Citation.] If so, they qualify as unrelated claims. Conversely, related claims ‘will involve a common core of facts or will be based on related legal theories.’ [Citation.]’” (Id. at 239.)
In its original petition filed in July 2016, Baldwin Park alleged that the EIR for the Project failed to adequately analyze and mitigate impacts relating to aesthetics, air quality, greenhouse gases, odor, health, biological resources, cultural resources, environmental justice, geology and soils, hazards and hazardous materials, land use and planning, noise, public services and utilities, traffic generation and circulation, water quality, hydrology, growth inducing impacts, and cumulative impacts in violation of CEQA. (2016 Pet. ¶¶ 70-89.) The 2016 Petition also alleged, inter alia, that Irwindale illegally segmented Project approvals, failed to provide a legally adequate project description, failed to analyze a reasonable range of alternatives, failed to respond to comments on the EIR, failed to adopt adequate CEQA Findings of Fact and a Statement of Overriding Considerations, and improperly deferred impact analysis, development of mitigation measures, and development of appropriate thresholds. (2016 Pet. ¶ 68, ¶¶ 88-105.) The 2016 Petition also alleged several non-CEQA claims, such as violations of the planning and zoning law. (2016 Pet. ¶¶ 107-134.)
In November 2017, Baldwin Park filed a second petition (“2017 Petition”), alleging additional new and distinct CEQA violations and violations of state planning and zoning laws. (See Pet. filed 11/15/17 in BS171622.) This second petition arose primarily from Irwindale’s approval of changes to the Project through its adoption of an Addendum to the FEIR.
In its opening brief, Baldwin Park did not pursue all of the legal issues raised in its petitions. In its opening brief, Baldwin Park argued that Irwindale violated CEQA in the way in which it described and analyzed the Project’s building square footage, parking spaces, truck fueling operations, operational capacity, transportation energy, health risks, odor impacts, noise impacts, noise mitigation measures, odor mitigation measures, and its decision to reject a reduced tonnage project alternative. Further, the opening brief argued that Irwindale failed to adequately disclose and analyze site plan revisions, failed to identify the proper environmental baseline, and that substantial evidence did not support Irwindale’s decision to prepare an Addendum. Baldwin Park also argued that Irwindale violated Irwindale’s General Plan and Zoning Code. (See Opening Brief filed 2/13/19.)
Baldwin Park did not prevail on many of the issues raised in its petition and writ briefs. In summary, Baldwin Park prevailed on the following three issues: “ the EIR’s project description and analysis is inadequate as to truck fueling operations,  the EIR does not sufficiently analyze transportation energy impacts,  the EIR does not sufficiently analyze the health risks associated with the Project’s emissions of ROG, NOx and ozone, or explain why this analysis would be infeasible.” (See Judgment at 54.)
In its motion, Baldwin Park argues that “[a]ll of the claims asserted in the petitions pertained to Irwindale’s approval of the Project and each of the petitions seek the same relief based upon their various claims — the rescission of the Project’s approvals.” (Mot. 14.) Baldwin Park acknowledges that a fee award may distinguish between successful and unsuccessful claims, and that courts award fees for unsuccessful claims where the moving party shows that the claims “involve a common core of facts or [are] based on related legal theories.” (Mot. 14.) However, in its moving brief and reply, Baldwin Park does not sufficiently develop an argument, with any detailed discussion of the facts and legal theories at issue, that its successful and unsuccessful claims “involve a common core of facts or [are] based on related legal theories.” (See Mot. 14-15; see also Id. 2-6 and Reply 10-11.)
It is not enough for Baldwin Park to assert that all issues related to CEQA compliance. Baldwin Park asserts that “each claim was based on a common core of facts—Respondents’ approval of the Project.” (Reply 10.) The court finds this terse analysis unpersuasive. Taken to its logical conclusion, all unsuccessful claims related to approval of the Project would be compensable. No analysis of the “common core of facts” or legal theories would be relevant. Case law is to the contrary. Baldwin Park argued the EIR was inadequate under CEQA based on varied discrete legal and factual bases. Baldwin Park’s failure to provide detailed discussion on the alleged “common core of facts” supports a reduction in fees for unsuccessful claims.
Baldwin Park’s reliance on RiverWatch v. County of San Diego (2009) 175 Cal.App.4th 768, 783 is misplaced as applied here. (See Reply 10.) The Court of Appeal did not hold that a trial court lacks discretion to reduce fees for unsuccessful claims for which the moving party does not show a sufficient connection, such as related facts or legal theories, to the successful claims.
Based on the court’s knowledge of the case and familiarity with Baldwin Park’s writ briefs, the court finds, for the reasons stated below, that Baldwin Park’s requested fees should be reduced for its partial success.
Baldwin Park made various, fact-specific arguments about the adequacy of the Project description in the EIR. (See Decision at 7-15.) Baldwin Park only prevailed on its arguments concerning the description of truck fueling operations. Some time was reasonably incurred on all these claims in briefing the legal standard that applies to a court’s review of the adequacy of a project description in an EIR. (See Decision 7-8; see Opening Writ Brief 12-13.) That time is compensable. However, with respect to the factual arguments made based on the EIR and record, the court does not find a common core of facts between the adequacy of the description of trucking operations (on which Baldwin Park prevailed), and of building square footage, the number of parking spaces, and operational capacity (on which it did not). Accordingly, some reduction in fees is justified for Baldwin Park’s lack of success on those unrelated factual claims.
Similarly, Baldwin Park only partially prevailed on its arguments about the EIR identification and analysis of energy, health, odor, and noise impacts. (Decision 15-23; see Opening Writ Brief 15-21.) Some time was reasonably incurred on these claims in briefing the legal standard that applies to all of these claims. That time is compensable in full. The court also considers that the applicable legal standards and discussion of case law for energy and health impacts were important to the court’s analysis and justified substantial (and compensable) attorney work. (See Decision 15-20.) However, with respect to the detailed factual arguments made based on the EIR and record, the court does not find a common core of facts between the adequacy of the analysis of energy and health impacts (on which Baldwin Park prevailed), compared to odor and noise impacts (on which Baldwin Park did not prevail). Accordingly, some reduction in fees is justified for Baldwin Park’s lack of success on those unrelated factual claims.
Baldwin Park did not prevail on the remainder of its claims, including, but not limited to, its arguments about deferral of mitigation, Irwindale’s decision to reject a reduced tonnage alternative, Irwindale’s decision to prepare an Addendum, and Irwindale’s approval of a General Plan Amendment. (See Decision 24-54; see Opening Writ Brief 21-27.) These unsuccessful claims comprised a meaningful part of Baldwin Park’s writ briefs. The court does not find, and Baldwin Park does not show, a common core of facts or legal theories between these unsuccessful claims and the successful claims. Accordingly, a meaningful reduction in fees is justified for Baldwin Park’s lack of success on these unrelated factual and legal claims.
However, the court considers in its reduction of fees below that Baldwin Park’s writ briefing was thorough and helpful to the court on issues that were common to all claims, including its discussion of the Project and administrative proceedings, the record generally, and the standard of review. (See e.g. Opening Writ Brief 8-12; see Reply generally.) The court also considers time BHFS attorneys spent reviewing the 60,000-page record; organizing and editing the writ brief to comply with the 20-page limit; reviewing Respondents’ opposition and responding to common arguments made therein; and preparing for the writ hearings. (See De Felice Decl. ¶¶ 49-62.)
For the three phases of the litigation identified by Baldwin Park, the court further analyzes below the amounts the requested fees should be reduced based on Baldwin Park’s partial success.
Administrative Proceedings: January 2015 to June 9, 2016
Attorney fees incurred in an administrative proceeding are compensable under section 1021.5 if the administrative proceeding is “useful and necessary to the public interest litigation.” (Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1461; Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312, 1317-20.)
Baldwin Park retained BHFS in January 2015 to ensure it exhausted all of its administrative remedies and was prepared to litigate this matter, in the event Irwindale failed to rectify the deficiencies identified by Baldwin Park. Diane De Felice, the supervising partner on this matter, with the assistance of one senior associate, one junior associate and one land use planner, became familiar with the RDEIR and the FEIR and the issues presented therein. (De Felice Decl., ¶¶ 12-16, 81.) BHFS prepared two extensive written comments letters with respect to the FEIR and RDEIR detailing alleged errors in Irwindale’s proposed course of action with respect to the Project, and presented those comments at Irwindale’s public hearing on the Project. (Ibid.) In total, for the two comment letters and associated research and review of the FEIR/RDEIR, Baldwin Park was billed for 323.9 hours of time in the administrative phase of this matter, of which 143 hours (about 44%) were incurred by supervising partner De Felice. (Id. at ¶ 8, Exh. B.) Baldwin Park requests a total of $178,877.50 for the time billed in the administrative proceedings.
Baldwin Park may recover fees reasonably incurred to exhaust administrative remedies for this writ action. “[T]he exhaustion of administrative remedies is a prerequisite to a lawsuit challenging a CEQA determination…. Thus the administrative proceedings here qualify under Best as ‘useful and necessary to the public interest litigation.’ [Citation.] In fact, there can be no public interest litigation without first filing an administrative proceeding.” (Edna Valley Watch, supra at 1318-19.)
Respondents contend that the 323.9 hours claimed by Baldwin Park is excessive for two comment letters. Respondents contend, citing cases, that “[t]he standard for determining whether a petitioner adequately exhausted its administrative remedies is a lenient one,” and “Petitioners adequately preserve claims with comments far less detailed than those submitted by Baldwin Park.” (Oppo. 16; see e.g. Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 163 [“less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding.”]) That Baldwin Park may have been able to exhaust administrative remedies with less detailed comment letters is a relevant, but not dispositive, factor in assessing the reasonableness of the hours incurred.
Respondents contend that many of the administrative phase billing entries are not related to the submission of written or oral comments, and that some entries are heavily redacted. Respondents contend that Baldwin Park reasonably incurred no more than 40 hours of attorney work in the “administrative phrase.” (Oppo. 17.) The amount of fees requested for the administrative proceedings must be reasonable. The court has discretion to reduce fees that result from inefficient or duplicative use of time. (Horsford, supra at 395.) As summarized above, the court also “has discretion to reduce fees in a CEQA case based on degree of success.” (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 897; see also Hogar Dulce Hogar v. Community Development Com. of City of Escondido (2007) 157 Cal.App.4th 1358, 1370-71 [“ when a successful litigant seeks to recover pre-complaint litigation expenses, the litigant will, as a practical matter, bear a heavier burden of demonstrating how that activity contributed to the success of the litigation.”].)
Based on the court’s review, it appears all of the “administrative phase” entries from January 2015 to June 9, 2016 relate in some fashion to the preparation of the comment letters or related tasks, such as reviewing the FEIR and RDEIR or correspondence between counsel. (See De Felice Decl. Exh. X.) On the whole, considering that the billing entries are supplemented and explained by the De Felice declaration, the redactions do not materially detract from Respondents’ and the court’s ability to review the billing entries and the reasonableness of the fees requested.
Although Respondents do not justify their proposed reduction to 40 hours of work, the court finds the 323.9 hours requested by Baldwin Park to be substantially in excess of the reasonable amount for two comment letters and related work in the CEQA administrative proceedings. Baldwin Park did not prevail in this writ action on numerous issues raised in the comment letters and does not show that the time spent on those issues were “useful and necessary” to their success in this litigation. Based on the court’s knowledge of the case and the issues on which Baldwin Park prevailed, and the court’s review of the comment letters and billing entries, the court finds that Baldwin Park reasonably incurred $50,000 in the administrative proceedings.
Pre-Trial Litigation and Briefing: June 10, 2016 to May 21, 2019
Baldwin Park requests $691,174.00 in fees for the three-year period that began with filing the petition and culminated with briefing the lawsuit (June 10, 2016 to May 21, 2019). This amount includes time spent filing the petitions, submitting written comments on the Addendum and the Land Use Approvals (which are actually administrative tasks), preparing the Administrative Record, responding to Athens’ PRA requests, and briefing the case, among other things. (Mot. 12, fn. 6; see De Felice Decl. ¶¶ 8, 19-78.) BHFS attorneys and staff spent 1,181.5 hours on these tasks, including 568.9 hours for supervising partner De Felice; 124.3 hours for special counsel Matsinger; 221.2 hours for associate Christopher Guillen; and 166 hours for associate Elisabeth Esposito. (De Felice Decl. Exh. B.)
Respondents contend that “[a]ll fees associated with non-primary legal professionals should be eliminated,” specifically $28,275 billed by land use planner Alicia Harrison, paralegal Polly Chesson, and attorneys Kari Vozenilek and Kimberly Leefatt. (Oppo. 18.) Respondents do not cite any specific legal tasks performed by these persons that Respondents believe were unreasonably incurred. Rather, Respondents make a general argument about how BHFS staffed the case. Given the large size of the administrative record and complexity of issues on which Baldwin Park prevailed, the court cannot say that BHFS unreasonably used the services of a land use planner, a paralegal, or multiple associate attorneys in this second phase of the litigation, which include the writ briefing.
Respondents point out that Baldwin Park includes at least $33,130 for administrative-level tasks in this second phase, apparently because additional administrative proceedings occurred related to the Addendum after Petitioner filed the first petition in July 2016. (Oppo. 18-19; see Mot. 12, fn. 6.) The same “useful and necessary” standard, discussed above, applies to these fees incurred in the administrative proceedings. Baldwin Park provides some general discussion of these administrative tasks in its briefs and the De Felice declaration. (See Mot. 12-14, fn. 6 and De Felice Decl. ¶¶ 8, 19-78.) However, Baldwin Park does not develop an argument about how all of these fees were useful, necessary, or even connected to the CEQA claims on which it prevailed. It appears that much of these fees were not useful or necessary to the claims on which Baldwin Park prevailed. Baldwin Park does not show to the contrary with discussion of its successful claims and the administrative tasks at issue. (See e.g. Reply 10:4-12.) The court substantially reduces these fees because most were not useful, necessary, or sufficiently connected to the writ claims on which Baldwin Park prevailed.
Respondents contend that “Baldwin Park includes at least $2,340 of its fee award for fees associated with the PRA litigation, which was wholly separate from this case, was not consolidated with this case, and was not related to this case.” (Oppo. 19.) In response, Baldwin Park contends that these fees are compensable in the CEQA action because “the PRA litigation was inextricably related to this litigation as it involved requests to obtain information pertaining to Baldwin Park’s attorneys’ fees in this case. (Children’s Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740, 775-81.)” (Reply 10, fn. 8.) Baldwin Park does not show that the PRA litigation or associated legal work were sufficiently connected to the CEQA claims on which it prevailed or to its success generally to justify a fee award in an unrelated CEQA action. (See De Felice Decl. ¶¶ 38-46, Exh. E-K; see Mot. 4-5.) The court does not award Baldwin Park any fees for the PRA litigation.
Both sides assert that the other caused delay in the litigation. (See Mot. 4-5; Oppo. 9.) The court has considered these arguments and does not find that they justify a reduction in fees.
Respondents contend that Baldwin Park’s fees should be discounted 80% to account for unsuccessful claims. Respondents contend that “an entry-by-entry reduction of billing hours to remove time spent on the unsuccessful claims is not possible here” given redactions and “vague billing entries,” but that a 80% reduction is appropriate because Baldwin Park prevailed on less than 20% of its claims. (Oppo. 19.) For the reasons discussed at length above, the court agrees with Respondents that a substantial reduction is necessary to account for Baldwin Park’s partial success and because numerous, unsuccessful claims lack a sufficient “common core of facts” and/or legal theories to the successful claims. The court disagrees, however, that the billing entries, as supplemented by the De Felice declaration, are too vague to support some analysis of the amount of reduction. Furthermore, the court may determine the appropriate amount of reduction by reference to the writ briefs, the Decision, the De Felice declaration, and other supporting evidence. The court disagrees with the proposed reduction by 80%, which would not adequately compensate Baldwin Park for fees reasonably incurred for its successful claims.
The court concludes that a substantial reduction in fees is appropriate for this second phase (June 10, 2016 to May 21, 2019) because it includes administrative and PRA tasks unrelated to Baldwin Park’s success in this CEQA action, and because it includes BHFS’s work in briefing numerous, unsuccessful CEQA and non-CEQA claims. Based on the court’s knowledge of the case and the issues on which Baldwin Park prevailed, and the court’s review of the pleadings, writ briefs, billing entries, De Felice declaration, and other evidence in the record, the court finds that Baldwin Park reasonably incurred $250,000 in this second phase (June 10, 2016 to May 21, 2019).
Writ Trial, Judgment, and Post-Judgment: May 22, 2019 to Present
This final phase of the litigation included time preparing for the writ hearings; appearing and arguing at the writ hearings; preparing a proposed judgment and responding to Respondents’ objections; appearing at a hearing on the objections; conferring with opposing counsel on cost issues; and researching and preparing the motion for fees and reply. (See De Felice Decl. ¶¶ 54-78; Suppl. De Felice Decl. ¶¶ 1-9.) BHFS attorneys spent 490.9 hours on writ hearing, judgment, and post-judgment matters from May 22, 2019 to December 31, 2019, including 237.3 hours for De Felice and Matsinger (48%). BHFS attorneys spent 208.6 hours on the fee motion and reply. Baldwin Park requests $279,043.50 in fees for the writ hearing, judgment, and post-judgment tasks, and $110,401 in fees for the fee motion and reply. (Suppl. De Felice Decl. ¶ 8.)
In opposition, Respondents do not discuss any specific billing entries for this third phase of the litigation that they believe show an unreasonable use of time.
Respondents argue generally that the fees should be reduced for unsuccessful claims. (See Oppo. 19-20.) The preparation of the judgment and post-judgment matters relate exclusively to successful claims. However, a meaningful reduction is appropriate for the writ trials and preparation therefor given that BHFS attorneys spent substantial time on its unrelated, unsuccessful claims.
Respondents contend that Baldwin Park forfeited its request for time spent on the reply brief for this motion. (Oppo. 20-21.) The court disagrees. Given that such time had not yet been incurred, it was reasonable for Baldwin Park to submit reply evidence with respect to time spent after the motion was filed.
However, from the billing entries and De Felice declarations, the court finds some inefficient and duplicative use of time in this third phase, including with respect to the fee motion and reply. The court has discretion to reduce fees that result from inefficient or duplicative use of time. (Horsford, supra at 395.)
Based on the court’s knowledge of the case and the issues on which Baldwin Park prevailed, and the court’s review of the pleadings, writ briefs, billing entries, De Felice declaration, and other evidence in the record, the court finds that Baldwin Park reasonably incurred $200,000 in this third phase (May 22, 2019 to Present.)
The motion is GRANTED IN PART in the reduced amount of $500,000.
 This court also determined that two greenhouse gas claims raised by Waste Management had merit. (Judg. at 54.) However, Baldwin Park did not brief those claims and only incorporated Waste Management’s arguments by reference.
 To a lesser degree, the court has also considered the substantial percentage (58%) of hours that are attributed to supervising partner De Felice and special counsel Matsinger at $695/hour for this second phase. Although De Felice’s and Matsinger’s work was important to the case and success, the court finds this use of the highest-billing attorneys to be somewhat high for the second phase, which involved much of the legal briefing, considering that four associates were also assigned to the case and billed at rates of $425-$450/hour.
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