Opinion
In Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008)
The Agencies and Pacific Lumber appealed the trial court’s judgment and the attorney fee awards to this court, and, in late 2005, we issued an opinion that substantially reversed the trial court’s judgment on the merits. EPIC and the Steelworkers successfully sought review in the California Supreme Court, and we stayed briefing in the appeal from the attorney fee awards pending the Supreme Court’s decision. In light of that decision resolving the merits of the underlying cases, we address the Agencies’ appeals from the fee awards.
The Agencies argue that, in view of the outcome of the appeals in the underlying litigation, respondents are no longer entitled to attorney fees. The Agencies further argue that even if respondents are entitled to fees, the amounts awarded must be reduced to account for respondents’ ultimate lack of success on the merits. Finally, the Agencies contend the trial court made a number of errors in determining the amount of the fees it awarded.
We agree with the Agencies that the fee awards must be reevaluated in light of the final outcome of the underlying litigation. We reverse the attorney fee orders and remand the matter to the trial court for redetermination of respondents’ entitlement to fees and the appropriate amount of any fee award. To narrow the scope of the issues to be decided on remand and for the guidance of the trial court in the further proceedings, we resolve many of the issues raised by the parties in these appeals.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural history of the underlying litigation is set forth in detail in the California Supreme Court’s opinion in the merits appeals. (See EPIC II, supra, 44 Cal.4th at pp. 470-478.) Part of our recitation of the facts is drawn from that opinion, but we discuss only those matters relevant to the appeals from the fee awards.
The underlying litigation arose from an agreement (the Headwaters Agreement) among Pacific Lumber, the State of California, and the United States. (EPIC II, supra,
Pacific Lumber submitted for approval (1) a Sustained Yield Plan (SYP) under Public Resources Code section 4551.3; (2) a state Incidental Take Permit under the California Endangered Species Act (CESA) (Fish & G. Code, § 2050 et seq.); (3) an application for a Streambed Alteration Agreement under Fish and Game Code former section 1603; and (4) as required by federal law, a Habitat Conservation Plan (HCP). (EPIC II, supra, 44 Cal.4th at pp. 471-472.) As part of the approval process, the federal and state agencies decided to prepare for the state SYP and the federal HCP a joint environmental impact report (FIR) under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) and an environmental impact statement (FIS) under the National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq.). (EPIC II, at p. 472.) Congress required Pacific Lumber to obtain these approvals by March 1, 1999. (Department of the Interior and Related Agencies Appropriations Act, 1998, Pub.L. No. 105-83, § 501(b) (Nov. 14, 1997), 111 Stat. 1543, 1611 (hereafter, Appropriations Act).) “The approvals were timely obtained, in some cases right at the March 1 deadline.” (EPIC II, at p. 470.)
Respondents’ Actions for Administrative Mandamus
On March 31, 1999, EPIC filed an action for administrative mandamus seeking to set aside four agency decisions: (1) CDF’s approval of the SYP, (2) DFG’s issuance of the Incidental Take Permit, (3) DFG’s approval of the Streambed Alteration Agreement, and (4) CDF’s and DFG’s findings and certification of the EIS/EIR prepared for the SYP, the Incidental Take Permit, and the Streambed Alteration Agreement. It also prayed for an injunction prohibiting the Agencies and Pacific Lumber from authorizing or engaging in any timber operations pursuant to any Timber Harvest Plan (THP) that relied on the SYP or the Streambed Alteration Agreement. Finally, EPIC
On July 22, 2003, the trial court issued separate statements of decision ruling on the two petitions. It found both EPIC and the Steelworkers entitled to issuance of writs of mandate. The trial court rejected respondents’ arguments that the Agencies’ decisions were unsupported by substantial evidence, but ruled in respondents’ favor on virtually every other issue raised. It concluded “that the SYP was deficient on a number of grounds, and that the state Incidental Take Permit, Streambed Alteration Agreement and CEQA findings were all inadequate and represented a failure to comply with the law” on the Agencies’ part. (EPIC II, supra, 44 Cal.4th at pp. 477-478.) The trial court later issued supplemental statements of decision enjoining “timber operations conducted pursuant to any post-July 22[, 2003] THP which relied upon the SYP, [Incidental Take Permit] or Streambed Alteration Agreement.”
The Attorney Fee Awards
After issuance of the statements of decision, EPIC and the Steelworkers moved for awards of attorney fees under section 1021.5. The Agencies opposed both motions. On September 24, 2004, the trial court issued similar orders in both cases, awarding attorney fees to EPIC ($4,279,915.74) and the Steelworkers ($1,787,806.21).
In its orders, the trial court found that EPIC and the Steelworkers had satisfied all of section 1021.5’s conditions for entitlement to an award of fees.
The Appeals on the Merits
The trial court entered judgments and issued peremptory writs of mandate on October 31, 2003. The Agencies timely appealed to this court from both the underlying judgments and the related attorney fee orders. We consolidated the appeals for briefing, argument, and decision.
On December 12, 2005, we issued our opinion in Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection
On July 17, 2008, the Supreme Court issued its decision, affirming our opinion in most respects, but reversing on certain issues. (See EPIC II, supra, 44 Cal.4th at pp. 470-471, 526-527.) It set aside CDF’s approval of the SYP, holding that the agency had failed to produce a single, identifiable document, and it agreed with EPIC that the SYP was required to include individual watershed planning analyses. (Id. at pp. 491-497, 500-504.) It rejected all other challenges respondents made to the SYP. (Id. at pp. 482-491, 497-499, 504-506.) Addressing a question of first impression, our state’s high court held the “no surprises clauses” included in the state Incidental Take Permit was
After the Supreme Court issued its decision in EPIC II, we lifted the stay in these appeals and the parties completed briefing.
DISCUSSION
The Agencies attack the orders awarding attorney fees on a number of grounds. They first assert the fee awards are improper because respondents have failed to satisfy two of the conditions set forth in section 1021.5. Specifically, the Agencies claim EPIC and the Steelworkers cannot demonstrate that their litigation conferred a “significant benefit ... on the general public or a large class of persons” or that “the necessity ... of private enforcement. . . [is] such as to make the award appropriate . . . .” (§ 1021.5, subds. (a), (b).) These arguments attack respondents’ entitlement to a fee award.
In the alternative, the Agencies argue that even if respondents are entitled to an award, the amount of the fees granted is excessive. Principally, they contend the fee awards must be reduced to reflect the limited success respondents achieved after the appeals on the merits. The Agencies further contend the amounts awarded should be reduced because EPIC and the Steelworkers duplicated each other’s efforts. Finally, appellants assert the trial court abused its discretion by (1) awarding fees for counsel’s work in the administrative proceedings, (2) compensating counsel using San Francisco rates rather than Humboldt County rates, (3) enhancing the fee award with a multiplier, (4) awarding improper litigation expenses, and (5) excluding an expert declaration.
I. The Fee Award Must Be Reconsidered in Light of the Appellate Proceedings
II. Issues of Entitlement—Significant Benefit and Necessity
A. Requirements for Attorney Fee Awards Under Section 1021.5
B. Significant Benefit
Before addressing the parties’ contentions about whether the litigation conferred a significant benefit within the meaning of section 1021.5, we resolve two preliminary questions. First, should we make the initial determination of significant benefit, or should we leave the matter to the trial court on remand? Second, does the analysis of significant benefit require that we “balance” the benefits conferred on the public by each side in the litigation, rather than simply considering the benefit conferred by the result obtained by the successful party?
1. An Appellate Court Is Better Positioned to Determine Whether an Appellate Decision Has Conferred a Significant Benefit
The Agencies and the Steelworkers agree that we should decide the significant benefit question ourselves. EPIC, however, contends we must defer to the trial court’s determination of the matter because the issues presented are primarily factual. We disagree with EPIC and exercise our discretion to make this determination ourselves.
First, the California Supreme Court has made clear it is within our discretion to decide which court is better equipped to make the initial
Second, where the claim of significant benefit rests on an appellate opinion, it may be more appropriate for this court, rather than the trial court, to decide whether the case qualifies for a fee award. (See Laurel Heights, supra,
We have previously endorsed this approach and held that although the decision to award attorney fees under section 1021.5 lies initially with the trial court, “this court is equally well positioned to determine if [an appellate] opinion . . . yielded a significant benefit.” (Schmier v. Supreme Court (2002)
We recognize that the present appeals differ from cases such as L.A. Police Protective League because we are not assessing the impact of our own opinion. Instead, we are making a “value judgment about [the] legal effects” of EPIC II. (L.A. Police Protective League, supra,
Further, contrary to EPIC’s contention, the trial court’s findings on this point were not based on factual considerations and are not entitled to deference. The trial court cited three reasons in support of its determination. First, it concluded the action had resulted in the effectuation of fundamental legislative policies favoring the protection of valuable natural resources. As additional support for its finding, it cited the effectuation of a regulatory policy requiring consideration of regional economic vitality and employment in managing forest resources. Finally, it concluded its decision “may prove instructive to public officials charged with the responsibility for implementing those policies.” None of these reasons involves any kind of factual inquiry on which deference might be appropriate. Instead, they constitute the trial court’s evaluation of the legal effects of its decision, and thus “[t]here is no good reason for an appellate court to defer to a trial court’s value judgment on that question . . . .” (L.A. Police Protective League, supra,
2. Balancing the Benefits
In assessing whether this case has resulted in a significant benefit, the Agencies ask us to adopt a novel approach. They contend “that a court’s inquiry into significant benefit must balance the benefits that both parties conferred on the public through the litigation, to determine whether there was any net significant benefit bestowed on the public by [respondents].” The Agencies argue that our assessment of the fee award should be analogous to the type of assessment a court makes in deciding whether to issue a preliminary injunction, and ask us to “make clear that the courts must balance the respective equities of the benefits and detriments conferred by each party to the suit, and deny fees if on balance no net benefit has been conferred by the [respondents] on a large class of individuals or the general public.” In the Agencies’ view, their conduct in the litigation was the minimum required by their obligations to the public, and they argue that a miscarriage of justice would have resulted had they not defended their approvals and, instead, allowed judicial rejection of their actions on the grounds asserted by EPIC and the Steelworkers. We disagree that courts making the significant benefit determination must engage in the type of balancing the Agencies suggest.
First, the Agencies point to nothing in the statutory text that supports their argument. (See Adoption of Joshua S. (2008)
Second, while the Agencies correctly note that section 1021.5 “already embraces the idea that a party can confer a significant benefit on the public
Third, the Agencies’ reliance on Graham v. DaimlerChrysler Corp. (2004)
Finally, as respondents point out, the Agencies’ argument is misconceived. To the extent the Agencies rely on their success on a number of issues in the Supreme Court, their argument is not properly viewed as an attack on respondents’ entitlement to attorney fees, but as an argument that the lodestar amount should be reduced because respondents achieved less than complete success in this litigation. (See, e.g., Wallace v. Consumers Cooperative of
3. The Litigation Has Resulted in a Significant Benefit to the General Public
The Agencies’ principal argument is that the litigation has not resulted in any significant benefit to the environment because nearly all the claimed environmental protection and sustainable timber harvest aspects of respondents’ lawsuits “have been erased by the reviewing] courts’ opinions.” As a practical matter, this argument rests on the contention that respondents’ victory in the trial court, itself, conferred no benefit on the public. The Agencies minimize the significance of invalidating the state Incidental Take Permit and SYP, because a permit holder must still obtain a federal incidental take permit which is conditioned on including every term of its HCP. Thus implementation of the HCP is ensured whether or not state approvals are properly granted.
Even if this argument is accurate, a question we do not decide, it misses the mark. “[T]he ‘significant benefit’ that will justify an attorney fee award need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.” (Woodland Hills, supra,
First, both the Steelworkers and EPIC successfully challenged the validity of the SYP. The Supreme Court held the SYP invalid because it was not a single, consolidated document CDF and the public could use in
Other aspects of the Supreme Court’s opinion only serve to strengthen EPIC’s argument that its litigation conferred a significant benefit on the public. The Supreme Court held, for the first time, that no surprise clauses were inconsistent with the language of Fish and Game Code section 2081, subdivision (b)(2), which requires that the impacts of an authorized take of an endangered or threatened species be “minimized and fully mitigated.” (EPIC II, supra, 44 Cal.4th at pp. 507, 509-514.) The Supreme Court’s decision thus sets a precedent that will apply to future state incidental take permits issued under CESA. While an action need not create new law to satisfy the significant benefit criterion of section 1021.5 (Press v. Lucky Stores, Inc. (1983)
Moreover, the Supreme Court’s opinion held the final SYP insufficient because the document failed to include individual watershed planning analyses to address the cumulative impacts of logging and to support the sustained yield estimate. (EPIC II, supra, 44 Cal.4th at pp. 500-504.) The Supreme Court held that any resubmitted plan must include such analyses and that in considering whether to approve the resubmitted plan, CDF must decide “whether the information on individual planning watersheds complies with the Forest Practice Rules and is adequate to support Pacific Lumber’s long-term sustained yield estimate.” (Id. at p. 504.) As a result of this holding, we assume any resubmitted SYP will more accurately analyze the impacts of the proposed logging on individual planning watersheds. This provides further support for a determination that this litigation has resulted in a significant benefit. (See RiverWatch, supra,
Finally, as the Supreme Court noted in EPIC II, in EPIC I we held “DFG erred in issuing a permit in advance for [13] unlisted species, concluding that Pacific Lumber must seek new permits if and when the species become listed. [We] concluded that this provision must be severed from the Incidental Take Permit.” (EPIC II, supra,
In conclusion, the Supreme Court’s holding regarding the invalidity of the SYP, together with the others discussed above, are more than enough to merit a determination that EPIC’s action conferred a significant benefit on the public within the meaning of section 1021.5. We therefore hold that both respondents have satisfied this criterion for entitlement to an award of attorney fees.
C. The Necessity of Private Enforcement
The Agencies contend respondents are not entitled to a fee award because they cannot show “the necessity and financial burden of private enforcement ... are such as to make the award appropriate . . . .” (§ 1021.5, subd. (b).) According to the Agencies, because respondents failed to make reasonable settlement efforts at any time, EPIC and the Steelworkers cannot
1. The Agencies Have Not Forfeited Their Necessity Argument
2. The Relevance of Prelitigation Settlement Efforts
In Graham, supra,
Vasquez v. State of California (2008)
EPIC claims it satisfied any prelitigation settlement requirements because it exhausted its administrative remedies. We disagree that a party’s exhaustion of its administration remedies will necessarily satisfy prelitigation settlement requirements in every case. The purpose of the doctrine of exhaustion of administrative remedies is to give the administrative agency the opportunity to decide matters within its area of expertise prior to judicial review. (E.g., California Native Plant Society v. City of Rancho Cordova (2009)
Exhaustion thus ensures the agency will be informed of the full range of an interested party’s objections. Litigation may still ensue, however, if the agency agrees with some of a party’s objections but disagrees with others. (Cf. Williams v. Housing Authority of Los Angeles (2004)
We emphasize the limited nature of our holding on this point. Because we must remand the attorney fees issue to the trial court in any event, we simply direct the trial court to consider the question of settlement efforts in determining whether private enforcement was sufficiently necessary to justify an award of fees, since those efforts are relevant to, though not determinative of, the necessity decision in every case. (Vasquez, supra,
III. The Amount of the Fee Award
A. Reductions for Limited Success
1. Setting the Lodestar and Accounting for Limited Success
Where attorney fees are available under section 1021.5, the California Supreme Court has embraced the lodestar method for determining the appropriate amount of fees to be awarded to a prevailing plaintiff. (See Graham, supra,
California courts applying section 1021.5 in cases of limited success have adopted the approach set forth in Hensley v. Eckerhart (1983)
In cases of limited success, Hensley establishes a two-part inquiry. (Harman v. City and County of San Francisco (2007)
If successful and unsuccessful claims are related, the court proceeds to the second step of Hensley inquiry, which asks whether “the plaintiff achieve[d] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.” (Hensley, supra,
The Agencies’ arguments invoke both steps of the Hensley inquiry. They contend respondents failed to succeed on claims that were “unrelated” to those on which respondents prevailed. They also assert that even if the claims
2. Hensley Step One: Related and Unrelated Claims
Our first task is to determine whether respondents’ lawsuits encompass “distinctly different claims for relief that are based on different facts and legal theories.”
For example, in Sokolow, supra,
After holding the plaintiffs were prevailing parties, the Court of Appeal reversed the trial court’s decision, but concluded the plaintiffs were not entitled to the full amount of their attorney fee request. (Sokolow, supra, 213 Cal.App.3d at pp. 244-246, 248.) It held that “the degree or extent of appellants’ success in obtaining the results which they sought must be taken into consideration in determining the extent of attorney fees which it would be reasonable for them to recover.” (Id. at p. 248.) Noting that under both federal and state law, “a reduced fee award is appropriate when a claimant achieves only limited success” (id. at p. 249), the court concluded the plaintiffs “may not be said to have obtained all the results they sought” (id. at p. 250). Plaintiffs had not succeeded in obtaining the admission of women to the patrol, and they had not succeeded in entirely eliminating the county’s training and use of the patrol. (Ibid.) As the court explained, “[t]hese were not merely unsuccessful legal theories which were ultimately unnecessary to the success of appellants’ claims, upon which they entirely prevailed; to the contrary, they were important goals of appellants’ lawsuit which they failed to obtain.” (Ibid., italics added.) On remand, the trial court was directed to take into consideration the plaintiffs’ limited success when arriving at an award of reasonable attorney fees.
(a) Relatedness of Claims in Actions Based on an Administrative Record
Before analyzing whether respondents’ claims are related for purposes of Hensley, we must resolve a dispute between the Agencies and EPIC over the relatedness of claims in actions based on an administrative record. The Agencies contend our analysis of the issue of limited success must take account of the fact that the actions below were for administrative mandamus under Code of Civil Procedure section 1094.5, “where the administrative record is static, and there is no dispute of fact similar to that presented by a
EPIC’s view, in contrast, is “[t]hat the same record was involved for all claims . . . shows that all the facts and legal theories were based on one course of conduct: Appellants’ approvals of [Pacific Lumber’s] plans.” EPIC contends it would necessarily review the entire administrative record even if it had asserted only those claims on which it ultimately succeeded. According to EPIC, it therefore follows that all of its challenges to the various approvals at issue in this litigation constitute related claims under Hensley.
We find the Agencies’ argument unpersuasive. In an action based on an administrative record, the amount of legal work is certainly related to the breadth of the legal challenge. That is, the more theories advanced to challenge an agency’s action, the more attorney work required. But this is true in all legal actions, whether based on an administrative record or not. (Cf. Graciano v. Robinson Ford Sales, Inc. (2006)
In examining EPIC’s contention that all of its claims are necessarily related because they arise out of a single administrative record, we find that California case law has not directly addressed the relatedness of claims in actions for administrative mandamus. (Cf. National Parks, supra, 81 Cal.App.4th at pp. 239-240 & fn. 4 [holding unrelated two challenges brought by same petitioner to two separate EIR’s prepared for same landfill project].) We therefore look to federal decisional law for guidance, recognizing that it is only of “analogous precedential value.” (Serrano v. Unruh (1982)
The United States Court of Appeals for the District of Columbia Circuit (hereafter D.C. Circuit) addressed a similar question in Sierra Club v. E.P.A. (D.C. Cir. 1985) 248 U.S. App.D.C. 107 [
The D.C. Circuit then went on to examine each of the issues raised by the petitioners and awarded fees for those on which the petitioners had obtained significant relief.
We agree with the D.C. Circuit that a common administrative record and a common procedural history are not sufficient on their own to establish that claims are related. (Goos v. National Assn. of Realtors (D.C. Cir. 1993) 302 U.S. App.D.C. 363 [
(b) The Steelworkers’ Case
Applying the Sokolow analysis to the case before us, it is clear that the Steelworkers’ action did not involve unrelated claims. The Steelworkers “petitioned for administrative mandamus to challenge only the SYP . . . .” (EPIC II, supra,
(c) EPIC’s Case
EPIC’s case presents a more complex problem. EPIC’s third amended petition sought a peremptory writ of mandate and injunctive relief to set aside four agency decisions: (1) CDF’s approval of the SYP, (2) DFG’s issuance of the Incidental Take Permit, (3) DFG’s approval of the Streambed Alteration Agreement, and (4) CDF’s and DFG’s findings and certification of the EIS/EIR prepared for the three foregoing documents. (EPIC II, supra,
Looking at the relief EPIC ultimately obtained, it is clear that EPIC succeeded in two of its litigation objectives. Like the Steelworkers, it sought and received a judgment invalidating the approval of the SYP. Similarly, it obtained a ruling that the Incidental Take Permit was invalid “inasmuch as it included ‘no surprises’ clauses inconsistent with Pacific Lumber’s statutory duty to fully mitigate the impacts of its incidental take.” (EPIC II, supra,
EPIC was unsuccessful, however, in its challenges to the EIS/EIR and the Streambed Alteration Agreement. (EPIC II, supra, 44 Cal.4th at pp. 518-526.) It sought a writ of mandate commanding DFG to set aside its approval of the agreement and directing the Agencies to prepare an adequate EIS/EIR. It did not obtain the relief it sought with respect to these two agency actions. Thus, unlike the Steelworkers, EPIC cannot be said to have obtained all the results it sought, and it did not attain some important objectives of its litigation. (Sokolow, supra,
Nevertheless, in the unique circumstances of this case, we conclude EPIC’s unsuccessful claims are related to its successful ones. The relationship among these claims becomes apparent if we review the background of the Headwaters Agreement and the administrative proceedings that gave rise to respondents’ actions. The Headwaters Agreement was the subject of both federal and state legislation. (See Appropriations Act, § 501, 111 Stat. 1543, 1610; Stats. 1998, ch. 615, p. 4106.) Congress and the Legislature each made their respective monetary contributions to the agreement dependent upon the other’s appropriation of the funds necessary to carry out the agreement’s terms. (Appropriations Act, § 501(b)(1), 111 Stat. 1543, 1611; Stats. 1998, ch. 615, § 1, subd. (d), p. 4107.) In addition, just as Congress conditioned its funding upon the California’s approval of the SYP, the Legislature conditioned California’s financial contribution on the relevant federal agencies’ incorporation of certain specific terms in the final HCP. (Appropriations Act, § 501(b)(2), 111 Stat. 1543, 1611 [authorization of funding effective only upon state approval of SYP]; Stats. 1998, ch. 615, § 3, subds. (a)-(k), pp. 4108-4111 [specifying terms to be included in final HCP]; id., § 3(/)(2), p. 4111 [authorizing state funding with intent that HCP include specified conditions].)
Moreover, to satisfy both federal and state environmental policy act requirements, the federal and state agencies involved in the permitting process agreed to conduct a “joint scoping process for the preparation of environmental documents.” (61 Fed.Reg. 68285 (Dec. 27, 1996).) They also announced their intention to prepare a joint EIS/EIR for all administrative actions associated with the Headwaters Agreement. (Ibid.) Thus, the combined EIS/EIR considered the federal incidental take permits and HCP as well as CDF’s approval of the SYP, DFG’s issuance of state Incidental Take Permits, and DFG’s execution of the Streambed Alteration Agreement. (63 Fed.Reg. 53089 (Oct. 2, 1998).) As the United States Fish and Wildlife Service explained in its Federal Register notice, “[t]he proposed HCP, among
The February 1999 HCP implementation agreement notes that the HCP is a component of the SYP. DFG’s Incidental Take Permit incorporated the HCP, and it explained that Pacific Lumber was also obtaining a master Streambed Alteration Agreement, which itself was incorporated into the final HCP. Thus, in the words of the California Supreme Court, this case “concem[ed] a myriad of regulatory approvals, each approval supported by a document or documents that are to some degree interrelated with the others.” (EPIC II, supra,
All of these facts combine to support our conclusion that EPIC’s unsuccessful claims were related to its successful ones for purposes of the Hensley analysis. We thus hold that the relief EPIC sought on the unsuccessful claims did not seek to remedy a course of conduct entirely distinct and separate from the course of conduct underlying its successful claims. (Harman I, supra,
3. Hensley Step Two: Significance of the Overall Relief
The Agencies also seek a reduction of the fee award based on respondents’ overall lack of success on the merits. Simply stated, they contend respondents should not be compensated for the hours spent on litigating unsuccessful theories. For example, the Agencies claim the Steelworkers’ contentions regarding omitted public comments were “never promising,” and appellants note the California Supreme Court’s statement that the “duplicative nature [of the omitted comments] essentially is not contested.” (EPIC II, supra,
We leave resolution of these arguments to the trial court on remand, as they “essentially are factual matters.” (Hensley, supra,
B. The Trial Court Is Not Barred From Awarding EPIC’s Fees for Work Performed in the Administrative Proceedings
C. The Trial Court Did Not Abuse Its Discretion in Applying San Francisco Rates
The Agencies contend the trial court abused its discretion by compensating respondents’ counsel using rates charged by San Francisco attorneys rather than the lower rates charged by attorneys in Humboldt County. Appellants’ argument is twofold. They first assert that to demonstrate the unavailability of local counsel, respondents should be required to establish they attempted, but failed, to find local counsel. They further assert that because “this case was shown to be a much simpler case than was imagined and pursued by EPIC and the Steelworkers,” respondents cannot meet their burden of showing local counsel were either unavailable or lacked the skills necessary to litigate this case. We disagree on both counts.
Generally, “[t]he lodestar figure is calculated using the reasonable rate for comparable legal services in the local community for noncontingent litigation of the same type, multiplied by the reasonable number of hours spent on the case. [Citations.]” (Nichols v. City of Taft (2007)
In support of their motions for attorney fees, both EPIC and the Steelworkers submitted declarations by W. Timothy Needham, a local Eureka lawyer who worked on the case for EPIC. In one declaration filed in support of EPIC’s motion for attorney fees, Needham stated he had participated briefly as counsel in this case, but only in “a very specific area in which specialized expertise regarding the matters at issue [was] not required.” He further explained that his firm would not have undertaken “primary representation” in either EPIC’s or the Steelworkers’ lawsuits “because of the specialized knowledge required for their prosecution.” Needham also declared he was not aware “of any other local attorney or law firm in Humboldt County who would have represented the petitioners in this matter.” A number of other local attorneys submitted declarations in which they stated they would not have been willing to represent EPIC or the Steelworkers in the actions below. These declarations were “sufficient and competent evidence that [respondents] acted in good faith and hiring qualified counsel in [Humboldt County] was impracticable.” (Center for Biological Diversity v. County of San Bernardino (2010)
Thus, in this case, it appears EPIC successfully sought and found local counsel, and local counsel participated in the case for a brief period. Needham refused to undertake primary representation in this case, however, because he believed he did not possess the specialized knowledge necessary to handle it. This is therefore not a case in which “no effort was made to retain local counsel.” (Nichols, supra,
Finally, we expressly decline the Agencies’ invitation to assess in hindsight respondents’ decision to use out-of-town counsel. The Agencies cite no authority for doing so, and we are aware of none. Moreover, the Agencies’ essential contention is that in the end, this case turned out to be less complex than the case “imagined” by respondents’ counsel. Even if true, this would not justify subjecting respondents’ decision to use San Francisco counsel to post hoc review. Respondents necessarily made the decision to engage out-of-town counsel at the outset of these proceedings. It would be unfair to expect them to make completely accurate predictions about the ultimate outcome of the case at its inception, and we refuse to impose such a duty on them.
D.-F.
IV. Conclusion
We hold that the outcome of the appellate proceedings in this case requires a reevaluation of the attorney fee awards, and we therefore reverse the orders awarding attorney fees and remand for the trial court to exercise its discretion in light of the outcome of the merits appeals. (See Ventas Finance I, LLC v. Franchise Tax Bd. (2008)
The postjudgment orders awarding attorney fees are reversed, and the matter is remanded with directions that the trial court redetermine whether respondents’ actions were necessary within the meaning of section 1021.5 and the amount of any reasonable fee award. The parties shall bear their own costs on appeal.
Jones, P. J., and Needham, J., concurred.
A petition for a rehearing was denied December 15, 2010, and the opinion was modified to read as printed above.
Notes
CDF recently changed its acronym to CAL FIRE, but we use the former acronym because that is the one by which the agency was known during the underlying litigation. (See EPIC II, supra,
Section 1021.5 provides in pertinent 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. . . .”
Reporter’s Note: Review granted on March 29, 2006, S140547. For Supreme Court opinion, see
On June 18, 2009, we received notice of the adoption and completion of the chapter 11 plan of reorganization for Pacific Lumber and its related entities. The claims against those entities were fully discharged and those entities ceased to exist. On June 23, 2009, we dismissed Pacific Lumber’s appeal and issued our remittitur in that case. Pacific Lumber is therefore no longer a party to these appeals.
“No surprises clauses” are provisions in an incidental take permit that limit in advance the permit holder’s obligation to mitigate various impacts on endangered and threatened species. (EPIC II, supra,
On September 17, 2009, the trial court vacated submission of respondents’ motions for attorney fees on appeal. The trial court orders state that respondents’ motions “will be calendared for further proceedings following the filing herein of a remittitur from the Court of Appeal after its decision upon an appeal now pending in that court from an order of this court awarding attorney fees for trial court services.”
See footnote, ante, page 217.
Our case differs from the Fifth District’s recent opinion in Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2010)
Indeed, despite its claim that we must defer to the trial court’s findings on the significant benefit question, in this court EPIC relies on the effect of the Supreme Court’s ruling as support for its significant benefit argument. EPIC goes so far as to acknowledge that the “Supreme Court rulings will have far greater precedential value than the trial court’s decision.” Thus, EPIC at least implicitly recognizes that the significant benefit determination now depends far less upon the relief granted by the trial court than it does upon the precedential value of the Supreme Court’s opinion.
Under the catalyst theory, attorney fees may be awarded “even when litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation.” (Graham, supra,
The necessity requirement “ *.. . really examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys.’ [Citation.]” (Lyons v. Chinese Hospital Assn. (2006)
See footnote, ante, page 217.
Both steps of the Hensley inquiry involve factual determinations usually committed to the trial court’s discretion. (See, e.g., Schwarz v. Secretary of Health & Human Services (9th Cir. 1995)
The court in Sokolow distinguished an earlier case, Sundance v. Municipal Court (1987)
We recognize that under the fee-shifting statute at issue in Sierra Club v. E.P.A., the definition of what constitutes success on an issue is somewhat different from the standard under section 1021.5. The D.C. Circuit explained that the federal Clean Air Act does not restrict awards of attorney fees to “ ‘prevailing’ parties.” (Sierra Club v. E.P.A., supra,
See footnote, ante, page 217.
See footnote, ante, page 217.
Our resolution of these appeals renders the parties’ motions for production of additional evidence on appeal and requests for judicial notice moot. They are denied on that basis. The Agencies also make a cursory argument that respondents have already been paid a sufficient fee from Pacific Lumber’s bankruptcy case, but because this argument is based on materials for which the Agencies seek judicial notice, we do not consider it. To the extent any of the materials attached to the parties’ motions are relevant to the issues to be decided on remand, the parties may request that the trial court consider them.