By Glen Hansen

Save Our Uniquely Rural Community Environment v. County Of San Bernardino (2015) 235 Cal.App.4th 1179

In Save Our Uniquely Rural Community Environment v. County Of San Bernardino (2015) 235 Cal.App.4th 1179, the Court of Appeal for the Fourth Appellate District held that a petitioner failed to show that a trial court abused its discretion when it awarded petitioner $19,176 in attorneys’ fees under Code of Civil Procedure section 1021.5 despite petitioner’s request for $231,098, because petitioner (a) prevailed on only one of its numerous claims under the California Environmental Quality Act (“CEQA”) and local zoning ordinances; (b) excessively billed the case; and (c) failed to demonstrate why it was entitled to out-of-area attorney fee rates.

In the underlying project, Al-Nur Islamic Center proposed to erect an Islamic community center and mosque in a residential neighborhood in an unincorporated area of San Bernardino County. Petitioner, an organization of individuals, opposed Al-Nur’s plans based on the negative environmental impact the opponents believed the project would have on the neighborhood. Following a study of the environmental impact of the proposed project, the San Bernardino County Planning Commission adopted a mitigated negative declaration (“MND”) and issued a conditional use permit (“CUP”) for the project. The San Bernardino County Board of Supervisors denied petitioner’s appeal of the Planning Commission decision. Petitioner filed a petition for writ of mandate and complaint for injunctive relief with the Superior Court, alleging multiple violations of CEQA and of local zoning ordinances. The trial court granted the writ petition on a single ground, overturned the approval of the MND and CUP on that ground, and ordered the county to prepare an analysis in compliance with CEQA of the project’s impacts in that respect. Petitioner then filed a motion for attorney fees. Petitioner sought $110,599 with a multiplier of two, for a total of $221,198 for its work on the administrative proceedings and the writ petition, plus $9,900 for its work on the attorney fees motion. Petitioner sought payment based on $550 and $450 an hour, respectively, for the two partners who worked on the case, $250 an hour for an associate, and $110 an hour for a law clerk. The trial court granted the motion, finding that petitioner conferred a public benefit sufficient to warrant an award of attorney fees. However, the trial court reduced the fee to $19,176, including $1,500 for the attorney fee motion. Petitioner appealed. The Court of Appeal affirmed.

On appeal, the court explained that, the amount of fees to be awarded under section 1021.5 is within the trial court’s discretion, and the party seeking fees has the burden to prove that the trial court abused its discretion in awarding less than the amount it sought. A trial court’s ruling will not be disturbed unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. In other words, a trial court’s ruling on attorneys’ fees will not be reversed merely because reasonable people could disagree as to the proper outcome.  

In this case, the Court of Appeal held that the petitioner failed to meet its burden of showing affirmatively that the trial court abused its discretion. Here, the record supported the trial court’s stated reasons for reducing the award, and supported other reasons for reducing the fees that the court might legitimately have relied upon, even if it did not state them explicitly in its ruling. The Court of Appeal pointed to the following rationales to support the trial court’s decision:

First, the extent of a party’s success is a key factor in determining the reasonable amount of attorney fees to be awarded, and a reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole. Here, the trial court rejected the majority of petitioner’s contentions.

Second, the amount of time incurred by petitioner’s counsel in this case was excessive. For example,

  • The expenditure of 40 hours to prepare the reply brief was excessive, as the brief was only 14 pages long, much of it consisted of reiterating arguments petitioner had made in its opening brief, and it did not appear to have involved significant additional legal research or analysis of the record;
  • Petitioner’s firm actually billed 43.4 hours for work done by the two partners and a law clerk, and billed for the attendance of both partners at the hearing on the writ petition even though only one partner argued the case;
  • Charging nearly $10,000 for a run-of-the-mill attorney fees motion could reasonably be viewed as excessive because the motion merely assumed that all of the hours expended were justified and petitioner failed to make a specific showing of reasonableness;
  • The litigation was not complex and could have been handled by petitioner’s experienced CEQA attorneys, in the trial court’s words, “without having to reinvent the wheel”;
  • Petitioner’s attorneys billed at partner rates for some work which appeared to be clerical, such as preparing binders for a hearing and “print[ing] each page cited to in all briefs for easy reference during the hearing,” saving the administrative record to a computer, and “review[ing] and tag[ging] cites to the administrative record.”

Third, while petitioner argued that its attorneys legitimately billed at rates which are common in Los Angeles and other larger markets, its motion provided no justification for not seeking counsel in San Bernardino or Riverside. The general rule is that the party seeking the fee award has the burden to prove that it was justified in paying higher rates to attorneys from outside the local market.  Petitioner’s argument that it “did not have any referrals for CEQA attorneys in San Bernardino County,” as well as its counsel’s statement at oral argument that he did not “know anyone in San Bernardino that has the experience of my firm,” was not sufficient to satisfy that general rule.

Fourth, petitioner’s request for a double multiplier of the lodestar was also properly denied by the trial court. The multiplier was not warranted “based on the contingent risk factor” because taking the case on a contingent fee basis in and of itself does not compel a multiplier. The operative rule is that, “[i]n exercising its discretion to award a multiplier for contingent risk, the trial court ‘should consider whether, and to what extent, the attorney and client have been able to mitigate the risk of nonpayment, e.g., because the client has agreed to pay some portion of the lodestar amount regardless of outcome.’” Here, the fee was only partially contingent, the law firm’s expenditure of time on the case did not deprive it of the ability to take on other fee-generating work, and the firm did not show that its income suffered as a result of taking this case on a partial contingency.  Nor was a multiplier warranted in this case based on the complexity of the questions involved or the superior skills its attorneys displayed in presenting them. The trial court found that the fees charged were “outrageous” in light of what it saw as the relative lack of complexity of the case and small size of the administrative record.

The Court of Appeal’s opinion therefore gives counsel helpful insights (and dire warnings) regarding litigation and billing practices that will have a direct impact on the potential recovery of attorneys’ fees at the conclusion of a CEQA case. A 91% haircut is not a pretty sight to any CEQA petitioner’s attorney.

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.