Opinion
NOT TO BE PUBLISHED
Super. Ct. No. YCSCCVPT03-0000774
NICHOLSON, Acting P.J.
Plaintiffs Forest and Bobbie Tull brought this action to compel defendant Yuba County to comply with California’s environmental laws before granting permits to real party in interest A. Teichert & Son, Inc. to build a road for hauling aggregate. Plaintiffs prevailed in the action, including on appeal to this court, and then moved for private attorney general fees pursuant to Code of Civil Procedure section 1021.5. The trial court granted the motion. However, instead of determining and using reasonable market rates to calculate the fees to be awarded, the court used the rates found in the contract between plaintiffs and their attorneys. It used this method of reducing the requested rates after determining that part of the litigation was unnecessary.
Hereafter, all undesignated statutory references are to the Code of Civil Procedure.
We reverse. The trial court’s determination that part of the litigation was unnecessary is unsupported by the record. We therefore remand for an award of attorneys’ fees based on reasonable market rates, as required by section 1021.5.
PRIVATE ATTORNEY GENERAL FEES
Section 1021.5 states, in part: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. . . .” Of these requirements, only “the necessity . . . of private enforcement” is at issue on appeal.
A court assessing private attorney general fees starts by determining a lodestar figure. “[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. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)
“The lodestar (or touchstone) is produced by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate. Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative ‘multiplier’ to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.” (Lealao v. Benefit California, Inc. (2000) 82 Cal.App.4th 19, 26.)
“An appellate court may reverse a trial court decision denying attorney fees under section 1021.5 for a prejudicial abuse of discretion.” (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
FACTUAL AND PROCEDURAL BACKGROUND
A. Litigation on the Petition for Writ of Mandate
In the previous appeal in this case, we summarized the factual and procedural background up to that point, which remains pertinent to this appeal:
“Real party in interest A. Teichert & Son, Inc. (Teichert), owns and operates an aggregate mine in Yuba County, south of State Route 20 and east of Marysville, near the residential neighborhood of Hallwood. About 600 trucks carrying aggregate leave the mine each day. They reach the mine from the west through the Hallwood neighborhood.
“Teichert determined to construct a new access road that would provide a more direct route between the mine and State Route 20 and would avoid the Hallwood neighborhood. The route would run north of the mine and connect with State Route 20 at that road’s intersection with Kibbe Road. In March 2003, Teichert began construction of the new road from its mining facility to approximately 50 feet south of State Route 20. Teichert neither applied for nor obtained a grading permit from defendant Yuba County prior to commencing the new road’s construction.
“On April 17, 2003, Teichert applied for a grading permit for the new road. The application called for grading 9,500 cubic yards. The site plans depicted the new road connecting with State Route 20, but noted this ‘remaining work will be completed in conjunction with state route 20 work.’ The County issued the grading permit the same day.
“Meanwhile, the County began conducting preliminary environmental review on completing the new road and connecting it with State Route 20. Teichert requested encroachment permits from both the County and the state Department of Transportation in order to connect its new access road with State Route 20. In June 2003, the County released a draft initial study/mitigated negative declaration pursuant to CEQA discussing the potential impacts from reconfiguring the intersection at State Route 20 and Kibbe Road and to connect Teichert’s new road to State Route 20.
“The initial study described the project under review as the intersection improvements connecting State Route 20 to the new road. The study stated the road itself was not part of the project being reviewed because it had already been completed under the grading permit.
“In October 2003, plaintiffs Forest and Bobbie Tull filed this petition. They reside near where the new road will connect with State Route 20. They alleged the County had violated CEQA in two respects: (1) by wrongfully issuing the grading permit without conducting any environmental review; and (2) by segmenting Teichert’s new road project into two projects for purposes of environmental review; i.e., the grading permit for the road’s construction and the encroachment permits for the intersection improvements to connect the new road with State Route 20.
“Plaintiffs sought a writ of mandate compelling the County to set aside its approval of the grading permit and ordering Teichert to remove the road. Plaintiffs asked for an order directing the County to review the ‘whole’ access road project under CEQA as if the road had never been built. Plaintiffs also sought attorney fees under Code of Civil Procedure section 1021.5.
“The County continued processing its review of the encroachment permits. It issued a revised initial study/mitigated negative declaration in December 2003. This draft continued to define the project as the intersection improvements and assumed the road’s construction was outside its scope.
“However, in late 2003 and early 2004, the County reconsidered its position and determined to prepare an environmental impact report (EIR) on the entire project. Nevertheless, the EIR preparer hired by the County defined the project as improvements to State Route 20 for connecting to Teichert’s new road.
“On April 26, 2004, the superior court held trial on plaintiffs’ petition. Counsel for plaintiffs acknowledged the County’s decision to prepare an EIR, but argued plaintiffs were nonetheless entitled to a remedy. They asked the court for a writ of mandate ordering the County to set aside the grading permit, suspend all construction activities, and review the project’s impacts on the environment as it existed before the grading and construction of the new road began. They also asked the court to order the County to consider alternative locations for the completed road and not to approve the project on the post hoc rationalization that the road has already been built.
“The trial court issued a statement of decision and held the County’s decision to prepare an EIR rendered plaintiffs’ petition moot. It did not grant any of plaintiffs’ requests for specific relief. Plaintiffs in effect sought an order directing the County to prepare the EIR in compliance with CEQA. The court determined plaintiffs’ requests were premature. The County already bore the responsibility to comply with CEQA, and the court would not issue a writ compelling the County to do it ‘right.’ The court did, however, order a peremptory writ of mandate issue ‘for completion of the report.’
“Plaintiffs and Teichert objected to the court’s statement of decision. The court subsequently issued a new order and judgment determining the petition was rendered moot by the County’s decision to prepare an EIR and it dismissed the petition.
“Since then, the County has issued a draft EIR for the project. Unlike the County’s other environmental documents, this report defines the project as the improvements to the intersection with State Route 20 and the construction of the private road. The EIR uses as its baseline the environmental conditions that existed before the road was constructed. It analyzes impacts related to the past construction and potential future use of the road. It notes one of the project’s required public approvals is the grading permit. The draft EIR also discusses alternative locations for the road. Nothing in the record indicates the County has issued and certified a final EIR and approved the project’s remaining permit applications.” (Tull v. Yuba County (Jan. 31, 2006, C047900) [nonpub. opn.], original italics.)
Plaintiffs appealed the dismissal of the petition, and we reversed, finding for plaintiffs (1) on the merits and (2) on the mootness issue. Arguing against reversal on the merits, Teichert asserted, as it had in the trial court, that the County had already complied with CEQA by treating the grading as a project separate from the rest of the road project and issuing a permit without environmental review. We disagreed with this argument, concluding that CEQA required the County to treat all parts of the project together and to conduct an environmental review. We determined that the petition was not moot because, although the County had begun an environmental review of the entire project, a writ of mandate would ensure that the County would comply completely with CEQA. Therefore, we reversed and remanded with instructions to grant the petition. (Tull v. Yuba County, supra, C047900.)
The record on appeal does not disclose how the court proceeded on the merits on remand. Since no issue is raised as to those proceedings, we presume the trial court complied with our instructions.
B. Motion for Attorneys’ Fees
After remand, plaintiffs filed a motion for attorneys’ fees pursuant to section 1021.5, the private attorney general statute. In support of the motion, J. William Yeates, counsel for plaintiffs, filed a declaration stating that, although the market rate for his work was $250 per hour and for his associates was $200 per hour, he entered into a contract with plaintiffs at a rate of $125 per hour. He agreed to the reduced rate because (1) plaintiffs could not afford the market rates and (2) he believed that this was a case in the public interest for which he could obtain fees under the private attorney general statute.
The Yeates law firm submitted a detailed account of the time spent on the case and asked the court for a fee award reflecting the market rates. Plaintiffs requested the court to use a multiplier, 1.5, to enhance the proposed lodestar amount of $105,150.
In addition to the attorneys’ fees, plaintiffs requested expenses (including administrative assistants’ time) totaling $6,515.61. The trial court awarded the full amount of expenses, and there is no claim on appeal that the expenses portion of the award was erroneous. Therefore, our discussion is limited to the attorneys’ fees portion of the award.
Teichert responded to the attorneys’ fees motion by propounding discovery concerning, among other things, the sources of plaintiffs’ funding for this litigation. The Yeates law firm associated with attorney Kevin R. Culhane to represent plaintiffs in discovery proceedings. Teichert filed an opposition to plaintiffs’ attorneys’ fees motion, arguing (1) the action did not result in enforcement of an important right affecting the public interest, (2) the litigation did not confer a significant benefit on the general public, (3) the litigation was not necessary, and (4) no multiplier is justified. Teichert did not challenge (1) the market rates proposed by plaintiffs or (2) the billable hours.
Plaintiffs filed a reply, adjusting the requested award to account for attorneys’ fees for discovery. The amount requested, without using a multiplier, was as follows:
| Attorney | Market Rate | Billable Hours | |
| J. William Yeates | $250 | 44.00 | $11,000 |
| Keith G. Wagner | $200 | 397.75 | $79,550 |
| Jason R. Flanders | $200 | 43.00 | $8,600 |
| Kevin R. Culhane | $300 | 20.00 | $6,000 |
| Proposed Lodestar | $105,150 |
After a hearing on the motion, the trial court entered an order awarding attorneys’ fees to plaintiffs. The court found that (1) plaintiffs were the prevailing party (which was not disputed), (2) the action resulted in enforcement of an important right affecting the public interest, and (3) the litigation conferred a significant benefit on the general public.
As to whether the litigation was necessary, the trial court stated:
“[Plaintiffs] properly assert[] [record citation] that the County and [Teichert] consistently argued that CEQA did not apply to the grading permit or already-completed portion of the road. . . . [¶] On the other hand, the Court reflects on the suggestion of Mr. Yeates’ declaration [record citation] that this litigation is a ‘. . . typical “David vs. Goliath” case. . . .’ If such a comparison is apt, it appears equally apt that, by the time of the trial in the Superior Court, David had already felled the legendary giant. This is to say, by the time the matter was heard by Judge Evans, [plaintiffs] had already achieved the primary litigation objective of having the County conduct the CEQA review it had shirked in the first place. While this Court disagrees with [Teichert’s] characterization of the Court of Appeal’s Opinion as ‘academic’ and ‘advisory,’ the Court thinks it fair to say that Judge Evans’ error was not in viewing the case at the time of trial as essentially moot or premature, but rather in failing to grant the formal relief notwithstanding, so as to provide a continuing basis for court supervision/review of the CEQA process that [the County] belatedly undertook. [¶] It is true that, having figuratively run up the white flag, [Teichert] continued to assert [its] position, both in the trial court and in the Court of Appeal. The Court sees nothing in the record, however, to support [plaintiffs’] contention that [Teichert] tenaciously prolonged this litigation. The Court finds persuasive the defense contention that the better course would have been for this lawsuit to have been put in abeyance pending completion of the administrative process. That is to say, the ‘necessity and burden of private enforcement’ could have been, and reasonably should have been mitigated, in light of the County’s commencement of the proper review it avoided in the first instance.”
Having made these findings, namely, that plaintiffs qualified as to each prong of the private attorney general analysis, except for the necessity prong to some extent, the trial court awarded attorneys’ fees at the contract rates, rather than the market rates, as follows:
| Attorney | Rate Awarded | Hours Allowed | |
| J. William Yeates | $125 | 44.00 | $5,500.00 |
| Keith G. Wagner | $125 | 397.75 | $49,718.75 |
| Jason R. Flanders | $125 | 43.00 | $5,375.00 |
| Kevin R. Culhane | $225 | 20.00 | $4,500.00 |
| Total | $65,093.75 |
The court stated that, “while an award of attorneys fees is appropriate, the amount reasonably incurred is most closely approximated by compensating for all tasks done, but by setting the lodestar rate at the actual contract rates, and omitting any multiplier.”
The County did not file a respondent’s brief on appeal.
DISCUSSION
Plaintiffs contend that the trial court erred by reducing the lodestar amount by using contract rates rather than market rates. Teichert replies that the trial court used the contract rates instead of market rates because part of the litigation (after the County had initiated the environmental review) was unnecessary. While it appears that Teichert is correct about the trial court’s reason for using the contract rates (that is, part of the litigation was unnecessary), it begs the question of whether such an approach (reducing the rates, rather than the hours, because part of the litigation was unnecessary) is appropriate. We need not resolve that question, however, because, as plaintiffs contend, the record does not support the conclusion that part of the litigation was unnecessary. Because the trial court had no valid reason to reduce the award of attorneys’ fees to the contract rates, it was an abuse of discretion to reduce the rate based on the court’s perception that part of the litigation was unnecessary.
Plaintiffs also make other contentions of error. Except as they relate to the issues discussed below, we do not consider those contentions because such consideration is not necessary to the result that plaintiffs seek.
A. The Trial Court’s Reason for Using the Contract Rates
As Teichert acknowledges in the respondent’s brief, the trial court based its use of the contract rates rather than the market rates on its finding that plaintiffs’ judicial action was no longer necessary after the County initiated the environmental review process. That appears to be the only reasonable interpretation of the court’s comments.
After reviewing the course of the litigation and noting that the County initiated the environmental review while plaintiffs’ action was pending, the trial court noted that, although Teichert continued to assert that no comprehensive environmental review was necessary, the County had “figuratively run up the white flag” by initiating the review. The court rejected the notion that Teichert had “tenaciously prolonged” the litigation and agreed with Teichert’s contention that plaintiffs should have “put in abeyance” the litigation until the environmental review was completed. Based on these determinations, the trial court stated: “[T]he ‘necessity and burden of private enforcement’ could have been, and reasonably should have been mitigated, in light of the County’s commencement of the proper review it avoided in the first instance.” As to how this conclusion related to using contract rates rather than market rates, the trial court said that “while an award of attorneys fees is appropriate, the amount reasonably incurred is most closely approximated by compensating for all tasks done, but by setting the lodestar rate at the actual contract rates, and omitting any multiplier.”
This conclusion, that the court should award compensation for the entirety of the litigation, but at the contract rates, not the market rates, does not logically follow from the determination that litigation was necessary up to a point, but not after. Teichert recognizes this problem: “In that regard, [the trial court] could have, and perhaps should have, achieved [its] desired result by reducing the hours for which fees were to be awarded to only those arising from the Superior Court proceedings. Had [it] done so, the entire basis for [plaintiffs’] appeal would not exist. By [the court’s] own words, though, [it] was landing on an amount which ‘most closely approximated’ what [it] believed to be appropriate given [its] assessment that much of the litigation had been unnecessary.”
Teichert goes on to argue that, had the trial court awarded attorneys’ fees at plaintiffs’ proposed market rates for the part of the litigation the trial court found necessary, the court actually would have awarded much less. There are two problems with this argument: (1) the trial court did not choose that method and (2) Teichert did not propose such a reduction. In fact, Teichert’s opposition to plaintiffs’ motion for attorneys’ fees made the argument that plaintiffs’ action was unnecessary, especially after the County initiated the environmental review. However, Teichert proposed no method for reducing the attorneys’ fees award. Instead, it asked only that the court deny the motion.
From these circumstances, we deduce that the trial court’s use of contract rates to reduce the attorneys’ fees award was a result of its unguided attempt to reduce the award because of its determination that continuing the litigation was unnecessary after the County initiated the environmental review. Having established what reasoning the trial court used for the reduction, we can now determine whether the record supports the determination that part of the litigation was unnecessary. As will be seen, we conclude the trial record does not support that determination; therefore, we need not decide whether the method the trial court chose to reduce the attorneys’ fees was valid under the circumstances.
B. The Necessity of the Litigation
Plaintiffs assert that the trial court’s conclusion that part of the litigation was unnecessary is unsupported by the record because it conflicts with our conclusion in the first appeal. We agree.
“[T]he statutory requirement of ‘necessity . . . of private enforcement’ addresses the issue of the comparative availability of public enforcement, not the causal relationship between the claimant’s action and the result.” (City of Sacramento v. Drew, supra, 207 Cal.App.3d at p. 1298, italics omitted.) When the government is sued to enforce the law, the necessity of private enforcement is obvious. In these situations, private citizens must “‘guard the guardians.’” (Id. at p. 1299.)
The action here was necessary. The County refused to conduct an appropriate environmental review, so plaintiffs’ only recourse was to bring this action to force the County to comply with the law. Even though at the time of the first appeal the County had initiated environmental review, Teichert maintained that comprehensive environmental review still was not required by law. In our opinion, we noted the continuing necessity of relief: “[T]he County has prepared a draft EIR which addresses many of plaintiffs’ issues. However, the document is a draft EIR. It still is subject to revision, completion as a final EIR, and certification by the County. The need for the court’s continuing jurisdiction thus still exists.” (Tull v. Yuba County, supra, C047900, original italics.)
There was, therefore, no basis for the trial court’s conclusion that this litigation was no longer necessary after the County initiated its environmental review. The action was a suit against the government to enforce the law, and the full result sought had not yet been achieved when we decided the appeal. Accordingly, the necessity prong of the test for private attorney general fees did not give the trial court discretion to reduce the fees awarded.
C. Argument that Award is Presumed Correct
In an alternative argument in support of the trial court award, Teichert contends that we must give deference to the trial court’s determination of the reasonable rates to be applied. While it is true that we will affirm an order correct in the law even though entered for the wrong reason (see Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th 643, 661 [order denying motion for attorneys’ fees affirmed even though entered for the wrong reason]), the trial court here explicitly used contract rates rather than reasonable market rates. Since the trial court did not use reasonable market rates, we must reverse.
The trial court made it clear in its ruling that it was not attempting to determine reasonable market rates. Instead, it found that part of the litigation was unnecessary and, having received no assistance from Teichert concerning which hours to allow fees for, the court simply stated that compensating plaintiffs’ attorneys at the lower contract rates “most closely approximated” the fees reasonably incurred. Because (1) the method of reducing fees is inconsistent with established law and (2) the determination that part of the litigation was unnecessary was unjustified, we cannot uphold the use of the contract rates.
D. Attorneys’ Fees for Appeal
Plaintiffs assert they are entitled to an award of private attorney general fees for this appeal, and they request us to retain jurisdiction to hear a motion for those fees. We agree that plaintiffs are entitled to an award of fees for this appeal as part of their ongoing entitlement to private attorney general fees. (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1356.) However, instead of retaining jurisdiction to determine the amount of fees on appeal, we will remand to the trial court for that determination. (See Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499, 1517 [remand to determine amount of fee].)
E. Award of Attorneys’ Fees
Plaintiffs assert that we must direct entry of an order using the market rates they proposed to the trial court because Teichert offered no contrary evidence. We agree.
In the trial court, Teichert did not contest the reasonableness of the market rates proposed by plaintiffs. The same is true on appeal. Teichert also has presented no argument on appeal, other than the necessity argument which we reject, that the number of hours expended on the case should be reduced. Finally, although plaintiffs argued in the trial court that a multiplier of 1.5 should be applied to the award, they do not assert on appeal that the trial court abused its discretion by not applying a multiplier.
Accordingly, we will direct the trial court to enter an order awarding plaintiffs $105,150 in attorneys’ fees, as reflected in the chart on page 10 of this opinion. Additionally, we will direct the trial court to determine the amount of time expended by plaintiffs’ counsel since the time of the request in the trial court and order attorneys’ fees for that time, again based on the reasonable market rates proposed by plaintiffs.
DISPOSITION
The private attorney general fees award is reversed and the matter is remanded to the trial court to award expenses ($6,515.61, as already awarded) and attorneys’ fees at the requested market rates for the entire course of the litigation, including $105,150 as requested and fees for any further time expended, including for this appeal, since that request. Plaintiffs shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278.)
We concur: RAYE, J., BUTZ, J.