Opinion
G054631
10-25-2018
PROTECT OUR HOMES AND HILLS, et al., Plaintiffs and Respondents, v. COUNTY OF ORANGE et al., Defendants and Appellants; YORBA LINDA ESTATES, LLC, Real Party in Interest and Appellant.
No appearance for Defendants and Appellants. Kevin K. Johnson, Kevin K. Johnson and Jeanne L. MacKinnon for Plaintiffs and Respondents. AlvaradoSmith, Keith E. McCullough and William M. Hensley and for Real Party in Interest and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00797300) OPINION Appeal from an order of the Superior Court of Orange County, William D. Claster, Judge. Affirmed. No appearance for Defendants and Appellants. Kevin K. Johnson, Kevin K. Johnson and Jeanne L. MacKinnon for Plaintiffs and Respondents. AlvaradoSmith, Keith E. McCullough and William M. Hensley and for Real Party in Interest and Appellant.
After partially prevailing on their petition for writ of mandate which alleged the County of Orange (County) violated provisions of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA), Protect Our Homes and Hills and others (collectively, Protect) sought to recover attorney fees under Code of Civil Procedure section 1021.5, as well as costs. County and real party in interest Yorba Linda Estates LLC, opposed the fees motion; Yorba Linda Estates also filed a motion to tax the costs. The court denied in part, and granted in part, both motions, resulting in an award to Protect of approximately $409,000 in attorney fees and $16,000 in costs.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Yorba Linda Estates appeals both the attorney fees and cost determinations. Although not contesting Protect's general entitlement to both, it claims the court erred in awarding attorney fees for certain types of claimed work, including a public records request and administrative record preparation, and denied it due process by not allowing an adequate opportunity to respond to certain modified documents filed by Protect. It also contends administrative record preparation costs should have been taxed due to Protect's purported failure to timely prepare the administrative record after it elected to do so. We find no error and affirm the order in full.
FACTUAL AND PROCEDURAL BACKGROUND
Because of the limited nature of this appeal, we provide only an abbreviated version of the background facts. A more detailed version can be found in our opinion addressing the underlying merits of Protect's writ petition. (Protect Our Homes & Hills v. County of Orange (Oct. 13, 2017, G054185) [nonpub. opn.].)
Yorba Linda Estates wants to construct a 340-home residential project (Project) in the hills adjacent to a state park and the City of Yorba Linda. Because of the 469-acre Project site's location in an unincorporated area of Orange County, County acted as the lead agency and reviewed the Project pursuant to CEQA. The environmental impact report (EIR) concluded most potential impacts could be mitigated to a less than significant level.
Protect filed a petition for writ of mandate against County and the City of Yorba Linda, naming the developer, Yorba Linda Estates, as a real party in interest, and challenging certification of the EIR and the associated land use approvals based on purported violations of CEQA and state planning and zoning laws. The trial court granted the petition in part, and denied it in part. It concluded County failed to adequately analyze the Project's greenhouse gas related impacts, but it complied with CEQA in all other respects.
The trial court entered judgment and issued a corresponding preemptory writ of mandate. Among the steps the writ directed County to take were: (1) vacate certification of the EIR; (2) vacate all associated Project approvals; (3) revise the EIR in accordance with CEQA, the CEQA guidelines, the statement of decision, the judgment and the writ; and (4) reconsider whether to recirculate and certify the revised EIR and issue any Project approvals. Protect appealed from the judgment.
While that appeal was pending, Protect filed a memorandum of costs in the trial court. It also requested roughly $582,000 in attorney fees, plus a 1.5 multiplier, for a total of approximately $873,000 in fees. Yorba Linda Estates filed a motion to tax the costs and opposed the request for attorney fees. County also opposed the latter. Based on a variety of arguments, they urged the court to award no more than about $65,000 in attorney fees.
Following extensive briefing and a hearing, the court granted in part, and denied in part, both the motion to tax costs and the motion for attorney fees. As for costs, some of the highly contested costs which the court allowed Protect to recover were those associated with preparation of the administrative record for the case. With respect to attorney fees, the court calculated a lodestar of $582,169, subtracted approximately $127,400 to account for "fees not reasonably incurred or attributable to Yorba Linda Estates . . . or the County[,]" and applied a 0.9 multiplier to yield a total fee award of $409,301. The court entered a corresponding order, from which Yorba Linda Estates timely appealed. That appeal is the matter currently before us.
While the present fees and costs appeal was in the briefing stage, we rendered a decision concerning Protect's appeal from the underlying judgment. (Protect Our Homes & Hills v. County of Orange, supra, G054185.) In that opinion, we affirmed in part, but also reversed in part based on our determination that there were additional deficiencies in the EIR. Specifically, we found the EIR did not contain the accurate and stable description of the Project's environmental setting required by CEQA, and it did not adequately mitigate fire hazard impacts or properly analyze water supply availability. We remanded the matter to the trial court with instructions to issue an additional writ of mandate directing County to take further specified actions.
At Yorba Linda Estates' request, we take judicial notice of this court's unpublished opinion in the prior appeal. (Evid. Code, § 452, subd. (d).) However, we deny its similar request as to (1) the docket in the prior appeal, and (2) a motion for attorney fees filed by Protect in the trial court following the issuance of our prior unpublished opinion. The latter documents are unnecessary to our review and resolution of the issues raised in this appeal.
DISCUSSION
Yorba Linda Estates challenges both the attorney fees award and the partial denial of its motion to tax costs. It contends the attorney fees award was error because the court (1) wrongly granted fees relating to a Public Records Act (Gov. Code, § 6250 et seq., (PRA)) request Protect sent to County months before litigation commenced; (2) unjustifiably awarded fees for attorney work on preparation of an administrative record which was not timely completed; (3) denied it due process by failing to give a reasonable opportunity to respond to modified copies of billing records submitted by Protect's counsel; and (4) did not sufficiently account for Protect's lack of success on many aspects of the underlying case. It also challenges the costs awarded for administrative record preparation on the same bases it challenges the related fees. We find no error and affirm. A. Attorney fees under section 1021 .5
"Section 1021.5 codifies the private attorney general doctrine the Supreme Court adopted in Serrano v. Priest (1977) 20 Cal.3d 25. [Citation.] '"'The doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible. [Citations.]' [Citation.]"'" (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 611 (CBD).) It may be used to recover attorney fees in a CEQA action. (Id. at p. 612.)
To recover fees under section 1021.5, a prevailing CEQA petitioner must show the litigation (1) vindicated an important public right, and (2) imparted a significant benefit on the general public or a large class of persons. In addition, it must demonstrate the need for private enforcement and that the financial burden on it was out of proportion to its individual stake in the matter. (CBD, supra, 188 Cal.App.4th at p. 611.) Once the trial court determines a petitioner is entitled to attorney fees, it exercises its discretion to calculate the proper amount. The court begins with what is commonly referred to as the lodestar—number of reasonable hours multiplied by the reasonable hourly rate for each attorney—and then makes any increases or decreases it deems appropriate based on various factors. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 985.) Those factors include, among others: the degree of the petitioner's success, the complexity of the questions involved, the attorney's skills, unjustly inflated billing, contingent risk, and the extent to which the litigation precluded the attorney from taking other fee-generating work. (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1185-1188 (SOURCE).)
Yorba Linda Estates does not challenge Protect's general entitlement to attorney fees.
We generally review an attorney fees award under section 1021.5 for an abuse of discretion. (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312, 1317 (Edna Valley).) "Under the abuse of discretion standard, [the] court's ruling will not be disturbed unless [it] exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (SOURCE, supra, 235 Cal.App.4th at p. 1184.) Error is not shown "if reasonable people could disagree as to the proper outcome." (Ibid.) In contrast, it may be error "if the record contains some indication that the trial court considered improper factors or . . . simply snatch[ed] its award 'from thin air.'" (SOURCE, supra, 235 Cal.App.4th at p. 1190.) If the issue presented is purely one of law (e.g., statutory interpretation), our review is de novo. (Edna Valley, at p. 1317.) 1. Pre-petition work
Yorba Linda Estates claims the trial court erred in awarding approximately in attorney fees $3,400 for work performed on a PRA request Protect submitted to County prior to County's final action on the EIR and related development approvals—months prior to the filing of Protect's writ petition. It contends such prelitigation work, which it characterizes as "administrative proceedings" work, is noncompensable under Beach Colony II v. California Coastal Commission (1985) 166 Cal.App.3d 106 (Beach Colony II). In that vein, it criticizes the court's reliance on Edna Valley, supra, 197 Cal.App.4th 1312, to conclude otherwise.
But the discussion in Beach Colony II concerning administrative proceedings and attorney fees under section 1021.5 was inconclusive and dicta. Considering whether work done during administrative proceedings before the California Coastal Commission relating to a coastal development permit application was compensable, the court identified case law and statutory language which "suggest[ed]" section 1021.5 does not encompass such work. (Beach Colony II, supra, 166 Cal.App.3d at p. 116.) It did not come to a conclusion on the issue, however, because it separately determined the party seeking attorney fees failed to make the preliminary showing required for entitlement to fees under the statute. (Ibid.)
Edna Valley is factually distinguishable. In Edna Valley, the CEQA petitioner sought to recover attorney fees for work during a prelitigation administrative appeal to the county board of supervisors from an action taken by the county planning commission. (Edna Valley, supra, 197 Cal.App.4th at p. 1316.)
Here, the PRA request work is not properly characterized as "administrative proceeding" work. Through the PRA request, Protect sought the documents it would need to assemble the administrative record for the Project. Because the administrative record is the "evidence" in this type of case, and CEQA authorizes a petitioner to elect to prepare the administrative record, the PRA work was directly related to this litigation. Yorba Linda Estates conceded as much down below by not disputing that "the purpose of the work performed was to obtain documents to prosecute this action." Given the direct connection to the litigation, it is of no moment that the work technically took place before Protect filed its writ petition. 2. Administrative record preparation
Yorba Linda Estates' challenge to the award of roughly $51,000 in attorney fees for preparation of the administrative record is twofold. First, it argues Protect forfeited its right to such fees by failing to include the request in its memorandum of costs and instead including it in its attorney fees motion. Second, it claims Protect was not entitled to these fees because County, with Yorba Linda Estates' assistance, ultimately prepared the administrative record due to Protect's failure to timely do so. We disagree with both contentions.
Contrary to Protect's assertion, Yorba Linda Estates did not waive its right to make this argument by failing to raise it below. It is a pure question of law, which may be raised for the first time on appeal. (Donorovich-Odonnell v. Harris (2015) 241 Cal.App.4th 1118, 1130.)
Yorba Linda Estates makes no argument concerning the reasonableness of the number of hours or the hourly rates related to the administrative record preparation.
Section 1094.5, which guides judicial review of administrative writ petitions, specifies that "[i]f the expense of preparing all or any part of the [administrative] record [was] borne by the prevailing party, the expense shall be taxable as costs." (§ 1094.5, subd. (a).) Fees for attorney labor in preparing the administrative record are recoverable "expenses," subject to the general reasonableness standard. (The Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th 60, 70.) And, although the statute specifies expenses are "taxable as costs," we disagree with Yorba Linda Estates' proposed interpretation that the only way to recover such fees is through a memorandum of costs. Nothing in the statute specifies as much and there is no case authority supporting its interpretation.
By authorizing the recovery of such attorney fees as costs, section 1094.5 provides a prevailing party with a more streamlined method for recovering them. Instead of having to include them in a motion for attorney fees and bear the associated burden of proof, the party may include them in a memorandum of costs and recover them "as a matter of right" (§ 1032, subd. (b)), subject to a motion to tax costs brought by an opposing party. And even in the face of a motion to tax costs, the party seeking the fees benefits from the presumption that the amounts included in their memorandum should be awarded. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 (Nelson).)
Thus, while it may be advantageous for a prevailing party to include the attorney fees in its costs memorandum, it is not required to do so. As long as the opposing party has adequate notice of the attorney fees sought and a chance to respond, there is no reason why failure to include them on a particular paper should negate the right to the fees. This conclusion is supported by the Judicial Council memorandum of costs form, which includes a line for attorney fees and states that an amount may be entered "if contractual or statutory fees are fixed without necessity of a court determination; otherwise a noticed motion is required." (Italics omitted.)
The memorandum of costs summary form can be downloaded at http://www.courts.ca.gov/documents/mc010.pdf (viewed Oct. 23, 2018). The form, along with MC-010 (the memorandum of costs worksheet) and MC-025 (attachment), are listed in Appendix A to the California Rules of Court as "Approved for Optional Use."
Even if Protect was technically required to include attorney fees for administrative record preparation in its memorandum of costs, Yorba Linda Estates has not demonstrated it suffered prejudice from Protect's failure to do so. It had ample notice and opportunity to oppose the fees claimed, both in writing and orally, and its burden was no heavier than if the fees had been sought as costs. (See Nelson, supra, 72 Cal.App.4th at p. 131 [if items in costs bill appear reasonable, party challenging costs bears burden of proving an item is not properly chargeable or is unreasonable]; Millview County Water Dist. v. State Water Resources Control Bd. (2016) 4 Cal.App.5th 759, 769 [party seeking attorney fees under section 1021.5 bears burden of demonstrating all statutory prerequisites to recovery].)
Yorba Linda Estates' argument grounded in Protect's alleged failure to timely prepare the administrative record fares no better. Preparation of the record in a CEQA case involving an EIR is often complex and time consuming, which translates into high costs. To provide a petitioner with control over the costs, Public Resources Code section 21167.6 authorizes a petitioner to elect to prepare the record. (Pub. Resources Code, § 21167.6, subd. (b)(2).) Irrespective of who does the preparation, the accuracy of the completed administrative record is to be certified by the public agency within 60 days of service of the writ petition on the public agency, unless the parties agree or the court orders otherwise. (Pub. Resources Code, § 21167.6, subd. (b)(1)-(2).)
Protect elected to prepare the administrative record in this case. Faced with upwards of 25,000 pages of documents, and with a staff of just three attorneys, two of whom worked at paralegal rates for record preparation purposes, it took significant time for Protect's counsel to sift through documents, organize them and prepare a draft index.
Although Yorba Linda Estates gives the impression that it and County came to the rescue at the last minute once it was clear Protect would not complete the preparation in time for the 60-day certification deadline, the record before us shows otherwise. After the passage of just 32 days, Yorba Linda Estates' counsel provided Protect's counsel with a draft administrative record index, prepared at the request of Yorba Linda Estates and by a County consultant who was familiar with the Project and the administrative proceedings. Thereafter, Protect's counsel continued to work on its own index and record, while simultaneously attempting to review and reconcile it with that of County and Yorba Linda Estates.
As the administrative record certification loomed near, Protect provided County with a draft record index. County counsel reviewed the index, noticed it was missing e-mails that Protect wanted included, and believed it "lacked the detail and organization typically required by County for administrative records used in litigation[.]" The parties attempted to resolve differences concerning the record certification deadline, briefing schedule and hearing dates. But they did not come to an agreement, and County purportedly indicated it intended to certify the record provided by its consultant.
Protect filed an ex parte application asking the court to issue a scheduling order; County and Yorba Linda Estates opposed it. The ex parte hearing took place the day before what County and Yorba Linda Estates believed to be the statutory deadline for certification of the administrative record. The court denied the request and ordered the parties to "meet and confer on the administrative record and briefing schedules." It appears that rather than work with Protect to establish a mutually agreeable alternative deadline for certification, which is permitted by CEQA (Pub. Resources Code, § 21167.6, subd. (c)), County pushed through its own version of the index and related documents, taking Protect's input. It certified the record within the ensuing week.
Yorba Linda Estates did not include the trial court's minute order denying Protect's ex parte application in the record on appeal. However, on our own motion, we take judicial notice of the minute order, dated September 10, 2015. (Evid. Code, § 452, subd. (d).)
We observe section 1094.5 provides for the reimbursement of a prevailing party for the expense of preparing "all or any part of the [administrative] record." (§ 1094.5, subd. (a), italics added.) This language evidences the flaw in Yorba Linda Estates' claim that Protect should recover nothing because it did not finish preparing the record. While Protect never got the opportunity to finish, we cannot say, as a matter of law, it is not entitled to recover for work on the "part" it did prepare.
That County stated below it did not use any portion of Protect's work in preparing and certifying the ultimate administrative record does not alter our conclusion under the circumstances. Protect's counsel worked to organize tens of thousands of pages of documents and to prepare a draft index. After reviewing and receiving the draft index, County counsel believed it "did not appear to be materially different . . . than the [County's] index[,]" with the exception of some omitted e-mails County knew Protect wanted to include. Despite the similarity, County chose not to use Protect's draft index or its documents. That choice, made with full knowledge that Protect had elected to prepare the administrative record, does not deprive Protect of the right to recover its reasonable expenses for the work it performed.
Yorba Linda Estates emphasizes Protect's delay in preparing the administrative record, effectively arguing that Protect should be punished—by removing its right to recover record preparation expenses—for failing to prepare the record in time for County to meet the 60-day certification deadline. But there is no statutory or decisional law to support its novel exception to the normal "recovery by right" rule set forth in section 1094.5. And we are not inclined to create such an exception. Rather, we reaffirm and defer to a trial court's authority to determine the necessity and reasonableness of disputed expenses on a case-by-case basis. (See Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, 1051 [trial court has discretion to determine whether administrative record costs were necessary and reasonable].) 3. Modified billing records
Yorba Linda Estates claims it was denied due process because it did not have an adequate opportunity to review and respond to a modified version of the attorney billing records which Protect filed with the trial court the day before the final hearing on the attorney fees motion. The court thought otherwise, and we agree.
The initial billing records submitted by Protect in conjunction with its attorney fees motion were heavily redacted. Yorba Linda Estates and County criticized the extent of the redaction, and the court's tentative decision indicated its intent to subtract approximately $53,000 in fees because the redactions made it "virtually impossible for the [c]ourt and the opposing parties to determine whether the work performed was relevant to the action and/or whether the time spent on the subject matter was reasonable." It also indicated a roughly $16,000 deduction for fees related to work on claims against the City of Yorba Linda—claims which were voluntarily dismissed by Protect early on and which the court determined were unrelated to those against County.
While awaiting the final hearing on the fee issues, Protect's lead attorney reviewed its prior submittal and determined the redaction was, in fact, excessive. Protect then filed and served new copies of billing records with fewer redactions, and indicated it had identified an additional roughly $22,000 in fees for work performed on Protect's claims against the City of Yorba Linda. In its final order, the court further reduced the fee award by that additional amount.
Though the reductions made by the court were not as large as those urged by Yorba Linda Estates and County, nothing in the record demonstrates procedural error. The billing record redactions and the issue of time spent on claims against the City were matters discussed at length in the parties' briefs. In addition, the court gave each side an opportunity at the final hearing to specifically address the lesser redacted billing records which were filed the day before. Yorba Linda Estates' counsel did so, taking the position that notwithstanding the additional information provided by Protect, the court should apply the calculation method set forth in its written briefs. County concurred. Under these circumstances, we find no abuse of discretion in the court's decision to consider the modified billing records without supplemental briefing. (See Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 262 ["[A] trial court has broad discretion to accept or reject late-filed papers"].) 4. Lack of success
The trial court properly identified the extent of the petitioner's success on the underlying merits of the case as a factor to be considered when determining the amount of attorney fees to be awarded under section 1021.5. (SOURCE, supra, 235 Cal.App.4th at p. 1185.) Yorba Linda Estates concedes as much, but claims the court failed to apply the principle. To the contrary, the court accounted for Protect's limited success to the extent it found it appropriate under the circumstances, and again we find no abuse of discretion.
A court's use of a multiplier to increase or decrease a fee award based on various factors is not an exact science; the court has broad discretion. (Cates v. Chiang (2013) 213 Cal.App.4th 791, 822.) To account for a petitioner's lack of success, for example, a reduced fee award "'"is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole. . . ."'" (SOURCE, supra, 235 Cal.App.4th at p. 1185.) At the same time, however, "'"'a [petitioner] who has won substantial relief should not have his attorney's fee reduced simply because the . . . court did not adopt each contention raised.'"'" (Ibid.) Ultimately, "[w]hile a court has discretion to reduce fees in a CEQA case based on degree of success [citation], 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.)
After calculating the lodestar, the trial court applied a multiplier of 0.9 to reduce Protect's fee award to an amount it deemed reasonable. In its tentative decision, the court stated the multiplier accounted for the fact "that [Protect's] counsel operated on a hybrid fee arrangement involving a 'partial contingency.'" Thereafter, in response to Yorba Linda Estates' continued argument during the attorney fees motion hearing about lack of success, the court modified its tentative to add that the 0.9 multiplier was also sufficient to account for Protect's defeats. It further explained its belief that no additional reduction was warranted because (1) "the fact remain[ed] that [Protect was] successful in achieving an important result and the ultimate relief sought in this matter—a writ of mandate stopping the project from proceeding (at least for now)[;]" and (2) "none of the issues raised [by Protect] was clearly without merit or patently frivolous."
Though Protect's success was limited to County's failure to comply with CEQA in the EIR's greenhouse gas analysis, we cannot say the court's reasoning or its ultimate determination concerning the multiplier "'"'falls outside the bounds of reason[.]'"'" (SOURCE, supra, 235 Cal.App.4th at p. 1184; see also RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 783 [evaluation of success should be qualitative, not quantitative].) No abuse of discretion appears. B. Costs
Protect urges us to also consider the additional success it achieved on appeal concerning the merits of its underlying claims, arguing the additional success effectively moots Yorba Linda Estates' contention regarding lack of success. We decline to do so, as we confine our review to the facts before the trial court at the time it issued the challenged attorney fees and costs order. Whether attorney fees are appropriate for a later appellate victory is a matter to be raised in that appeal or in the trial court on remand from it. (See CBD, supra, 188 Cal.App.4th at pp. 612-613.)
A prevailing party in an action or proceeding is generally entitled to recover its costs as a matter of right. (§ 1032, subd. (b).) Where a plaintiff's recovery in a case is something other than monetary relief, as is the situation here, the trial court determines the prevailing party and may, in its discretion, award costs. (§ 1032, subd. (a)(4); Preserve Wild Santee v City of Santee (2012) 210 Cal.App.4th 260, 291.)
Yorba Linda Estates challenges the costs concerning preparation of the administrative record on the same basis as it contests the related attorney fees. For the reasons we explained above, we find no merit in those contentions and, thus, we affirm the costs award too.
DISPOSITION
The order is affirmed. Respondents are entitled to their costs on appeal.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. MOORE, J.