Pending - Other Pending
Other - Writ Of Mandamus
TORRIBIO, JOHN A.
KNOLL SAVE THE AGOURA CORNELL
CALIFORNIA NATIVE PLANT SOCIETY
AGOURA AND CORNELL ROADS LP
AGOURA HILLS PLANNING COMMISSION
CITY COUNCIL OF AGOURA HILLS
CITY OF AGOURA HILLS
ADVOCATES FOR THE ENVIRONMENT
GIOVINCO GINETTA LORRAINE
HANIGAN TIMOTHY R
WEINBERG LISA ANNE ESQ.
3/29/2021: Assignment of Judgment
12/4/2020: Abstract of Judgment - Civil and Small Claims
11/25/2020: Notice of Ruling - NOTICE OF RULING ON PETITIONERS MOTION FOR ATTORNEYS FEES ON APPEAL
11/19/2020: Minute Order - MINUTE ORDER (MOTION OF PETITIONERS, SAVE THE AGOURA CORNELL KNOLL AND CALI...)
11/12/2020: Reply - REPLY TO REAL PARTIES OPPOSITION TO MOTION FOR ATTORNEYS FEES ON APPEAL
11/5/2020: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO PETITIONERS' MOTION FOR ATTORNEYS' FEES ON APPEAL; DECLARATION OF TIMOTHY R. HANIGAN IN SUPPORT THEREOF
9/10/2019: Abstract of Judgment - Civil and Small Claims
7/13/2020: Acknowledgment of Satisfaction of Judgment
7/16/2020: Appeal - Remittitur - Affirmed
7/16/2020: Appeal - Remittitur - Affirmed - APPEAL - REMITTITUR - AFFIRMED B295112
7/24/2020: Substitution of Attorney
7/24/2020: Substitution of Attorney
8/13/2020: Memorandum - MEMORANDUM OF COSTS ON APPEAL
8/21/2020: Declaration re: Attorney's Fees - DECLARATION RE: ATTORNEY'S FEES (RICHARD M. UNGER)
8/21/2020: Declaration re: Attorney's Fees - DECLARATION RE: ATTORNEY'S FEES (DEAN WALLRAFF)
8/21/2020: Declaration re: Attorney's Fees - DECLARATION RE: ATTORNEY'S FEES (KATHLEEN R. UNGER)
8/21/2020: Motion for Attorney Fees
2/9/2018: RESPONDENTS' NOTICE OF JOINDER IN REAL PARTIES' OPPOSITION TO PETITIONERS' EX PARTE APPLICATION
DocketAssignment of Judgment; Filed by Advocates for the environment (Assignee); Save the Agoura Cornell Knoll (Petitioner)[+] Read More [-] Read Less
DocketAbstract of Judgment - Civil and Small Claims; Filed by Save the Agoura Cornell Knoll (Petitioner); California Native Plant Society (Petitioner)[+] Read More [-] Read Less
DocketNotice of Ruling (ON PETITIONERS? MOTION FOR ATTORNEY?S FEES ON APPEAL); Filed by Save the Agoura Cornell Knoll (Petitioner); California Native Plant Society (Petitioner)[+] Read More [-] Read Less
Docketat 1:30 PM in Department 82; Hearing on Motion for Attorney Fees - Held[+] Read More [-] Read Less
DocketMinute Order ( (MOTION OF PETITIONERS, SAVE THE AGOURA CORNELL KNOLL AND CALI...)); Filed by Clerk[+] Read More [-] Read Less
DocketReply (TO REAL PARTIES? OPPOSITION TO MOTION FOR ATTORNEY?S FEES ON APPEAL); Filed by Save the Agoura Cornell Knoll (Petitioner); California Native Plant Society (Petitioner)[+] Read More [-] Read Less
DocketMemorandum of Points & Authorities (IN OPPOSITION TO PETITIONERS' MOTION FOR ATTORNEYS' FEES ON APPEAL; DECLARATION OF TIMOTHY R. HANIGAN IN SUPPORT THEREOF); Filed by Agoura and Cornell Roads, LP (Respondent); Doron Gelfand (Respondent)[+] Read More [-] Read Less
DocketDeclaration re: Attorney's Fees ((Richard M. Unger)); Filed by Save the Agoura Cornell Knoll (Petitioner); California Native Plant Society (Petitioner)[+] Read More [-] Read Less
DocketDeclaration re: Attorney's Fees ((Kathleen R. Unger)); Filed by Save the Agoura Cornell Knoll (Petitioner); California Native Plant Society (Petitioner)[+] Read More [-] Read Less
DocketDeclaration re: Attorney's Fees ((Dean Wallraff)); Filed by Save the Agoura Cornell Knoll (Petitioner); California Native Plant Society (Petitioner)[+] Read More [-] Read Less
DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk[+] Read More [-] Read Less
DocketNOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON[+] Read More [-] Read Less
Docketat 00:00 AM in Department 1; Court Order (Court Order; Court makes order) -[+] Read More [-] Read Less
DocketMinute Order[+] Read More [-] Read Less
DocketVERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEF[+] Read More [-] Read Less
DocketNOTICE OF PETITIONER'S ELECTION TO PREPARE THE ADMINISTRATIVE RECORD[+] Read More [-] Read Less
DocketPROOF OF SERVICE OF NOTICE OF INTENT TO FILE CEQA PETITION[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketComplaint; Filed by Save the Agoura Cornell Knoll (Petitioner)[+] Read More [-] Read Less
DocketNotice; Filed by Real Party in Interest[+] Read More [-] Read Less
Case Number: ****9207 Hearing Date: November 19, 2020 Dept: 82
Save the Agoura Cornell Knoll and California Native Plant Society,
City of Agoura Hills, et al.
Real Parties in Interest: Doron Gelfand and Agoura and Cornell Roads, LP
Judge Mary H. Strobel
Hearing: November 19, 2020
Tentative Decision on Motion for Attorney’s Fees
Petitioners Save the Agoura Cornell Knoll and California Native Plant Society (“Petitioners”) seek an award of attorney’s fees in the amount of $252,584.75 pursuant to CCP section 1021.5 against Real Parties in Interest Doron Gelfand and Agoura and Cornell Roads, LP (“Real Parties”).
Petitioners filed their verified petition for writ of mandate on April 7, 2017, and a first amended petition on August 10, 2017.
On May 23, 2018, the court issued its final decision on the petition for writ of mandate. In conclusion, the court stated: “The petition is GRANTED in part, as analyzed above, as to Petitioners’ CEQA claims and third cause of action for violation of the Oak Tree Ordinance.”
On September 24, 2018, Respondents filed a return to the writ of mandate, indicating that Real Parties had appealed the judgment.
On August 24, 2018, Petitioners filed a motion for attorney’s fees under CCP Section 1021.5. Respondents and Real Parties opposed the motion.
On December 18, 2018, the court granted fees to Petitioners in the amount of $142,148, payable 50% by City and 50% by Real Parties.
Real Parties appealed both the judgment and the fee award. City did not participate in the appeal. On February 24, 2020, the Court of Appeal affirmed the court’s judgment and fee award.
On August 13, 2020, Petitioners filed the instant motion for attorney’s fees for fees incurred on appeal. The court has received Real Parties’ opposition and Petitioners’ reply.
Entitlement to Attorney’s Fees under CCP Section 1021.5
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.)
Real Parties concede that Petitioners are entitled to fees under CCP Section 1021.5, but dispute the amount of the fee to be awarded. (See Oppo. 2:9-13.)
Reasonable Amount of Attorney’s Fees
“The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’ [T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)
Generally, the reasonable hourly rate used for the lodestar calculation is the rate prevailing in the community for similar work. (Center for Biological Diversity v. County of San Bernardino, (2010) 188 Cal.App.4th 603, 616.) In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., (2016) 6 Cal.App.5th 426, 437.)
“The verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) If the motion is supported by evidence, the opposing party must respond with specific evidence showing that the fees are unreasonable. (Premier 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 at 395.)
Reasonable Hourly Rate
Petitioners contend that the reasonable hourly rate for attorneys Dean Wallraff and Unger is $500. (See Mot. 6:9-14; 10:32.)
In the court’s November 15, 2018 decision, it found that an hourly rate of $425 was reasonable for Wallraff and Unger. Petitioners argue that $500 is a reasonable hourly rate because two years have passed. In that time, both attorneys have gained experience and skill and the prevailing rate has risen. (Mot. 11:2-7.) Petitioners submit the expert opinion of Richard M. Pearl who opines that the requested hourly rate is well in line with the non-contingent market rates by Los Angeles area attorneys of reasonably comparable experience, skill, and expertise for comparable services. (Pearl Decl., ¶ 11.) Pearl does not opine on the rate by which hourly fees in this market for similar services typically increase on a yearly basis.
In opposition, Real Parties argue that the majority of the work done on appeal was completed within one year of the court ruling that $425 was the reasonable rate. (Oppo. 3:8;15.)
In reply, Petitioners argue that when the court ruled that $425 was counsels’ reasonable hourly rate in fall of 2018, it was for work performed in spring 2017 to spring 2018. (Mot. 6:4-12.) Thus, the passage of time is still relevant. However, this argument somewhat cuts against Petitioners’ other argument that it is common practice to award fees based on counsel’s hourly rate at the time the motion for fees is made. (See Graham v. DaimlerChrysler Corp. (2004) 34. Cal.4th 553, 583-84; Pearl Decl., ¶ 21.)
The court concludes that the reasonable hourly rate for Wallraff and Unger in this action is $450. In reaching this conclusion, the court has relied on its own knowledge and familiarity with the legal market in Los Angeles, including reasonable fees in CEQA and land use actions. The court has also considered the experience, skill, and reputation of Wallraff and Unger (including in prior CEQA actions), the difficulty of this action, and the declaration of Pearl. The court has also considered that Wallraff and Unger were previously awarded fees at an hourly rate of $425 in 2018, and that a court awarded Wallraff $300 in 2016.
Reasonable Number of Hours
Petitioners contend that their attorneys and paralegal reasonably spent 245 hours on the appeal; and 80 hours on the fee motion, reply, and hearing; for a total of 325 hours. Petitioners have supported this argument with a declaration from attorney Wallraff regarding legal work performed for this action, as well as detailed billing records and records from the appeal. (See Mot. 5-9; Wallraff Decl. ¶¶ 21-37, Exhs. 1-15.)
Real Parties argue that the hours expended on the appeal are excessive because the legal issues on appeal were the same as those at the trial level, and therefore, the bulk of the work had already been performed. (Oppo. 3-4.) Real Parties conceded that the 86 hours of time spent from oral arguments to answering the petition for Supreme Court review were spent on new issues. However, Real Parties request that the court cut the 159 hours spent preceding oral arguments in half to roughly 80 hours, for a total of 166 hours. (Mot. 4:16-26.)
In reply, Petitioners cite to case law which supports fee awards for some appellate work on issues that may have been worked on in the trial court proceeding. (Reply, 2-3; Serrano, supra, 32 Cal.3d at 637; In re Marriage of Shaban (2001) 88 Cal.App.4th 863, 408-410; Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 621-22.) Petitioners argue there are many differences between appellate work and trial work, but by its nature, some underlying work on issues will be used for the appeal. However, appellate work presents different procedural standards, judicial scrutiny, and issues to present. Counsels did not just regurgitate their trial briefs.
The court finds a reduction of hours is justified because a significant amount of the work on appeal was duplicative of work performed at the trial level. The court finds 170 to be a reasonable number of hours to have been spent on the appeal.
Real Parties argue that the 80 hours requested for this fees motion is excessive because most of the legal arguments were made in connection with the initial fee award and the only new time needed was to add up the hours spent on the appeal. (Oppo.5: 2-6.) While the court disagrees that all counsel needed to do was add up the hours spent on the appeal, 80 hours appears to be excessive. The court reduces the hours for preparing the motion from approximately 50 hours to 30 hours and reduces the amount of time spent on the reply and hearing from 30 hours to 10 hours.
b. Total Lodestar
Based on the foregoing, that the reasonable hourly rate for Wallraff and Unger in this action is $450, and the reasonable number of hours for the appeal and fees motion to be 210, and paralegal hours is 3.37. Accordingly, the total lodestar fee is $94,836.
A trial court may adjust the lodestar upward or downward using a multiplier. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Courts look to the following factors, among others, in determining whether a multiplier is appropriate: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing law suits of the character here involved; (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed….” (See Serrano v. Priest (1977) 20 Cal.3d 25, 48.)
Petitioners request a multiplier of 1.75 on the grounds that (1) Petitioners’ counsel took the case on a partial contingency, with a contracted rate of $150/hour with the risk of not being paid at all; (2) Petitioners’ counsel displayed skill in presenting the issues in this case and the $500 hourly rate does not fully capture the level of skill, experience, and expertise displayed; (3) Petitioners’ counsel obtained excellent results; (4) Petitioners provided an important public benefit by enforcing CEQA; (5) the fees will be awarded to a public interest firm; and (6) expert Pearl opined that a 1.75 multiplier is reasonable. (Mot. 12-15.) The court has considered Petitioners’ arguments and cited evidence and concludes that no multiplier is justified. While some of the factors are satisfied, the $450 hourly rate and amount awarded already takes into account some of these factors, and fully compensates for all work reasonably provided. Further, counsel has not shown the partial continency work on this matter precluded other employment.
The motion is GRANTED IN PART against Real Parties. The court finds that the total lodestar fee is $94,836. The court denies the request for a multiplier.
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