SAVE BERKELEY‘S NEIGHBORHOODS, Plaintiff and Appellant, v. REGENTS OF UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
A169722 (Alameda County Super. Ct. No. RG18902751)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
January 24, 2025
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A.
Periodically, the University of California prepares a long-range development plan based on projected enrollment and academic goals for each campus. (See Save Berkeley‘s Neighborhoods v. Regents of University of California (2020) 51 Cal.App.5th 226, 231 (Save Berkeley‘s Neighborhoods I);
In April 2018, Save Berkeley filed a petition for writ of mandate alleging that the Regents had violated CEQA by increasing enrollment at the University of California, Berkeley campus beyond the levels projected in their last long range development plan (addressing development through 2020) without subjecting those increases to CEQA review. Save Berkeley sought an order “compelling [r]espondents to conduct environmental review of the excess increase in student enrollment pursuant to CEQA including, without limitation, by preparing and certifying an [EIR] to assess the significance of impacts caused by the excess increase in student enrollment and to identify and adopt mitigation measures to reduce these significant impacts,” along with declaratory relief.
In mid-August 2018, less than four months after Save Berkeley filed suit, the Regents issued a “Notice of Preparation of a Draft Supplemental Environmental Impact Report” in connection with a proposed “Upper Hearst Development for the Goldman School of Public Policy” project. The notice recognized that “[t]he need for a [s]upplemental EIR is . . . triggered by . . . an increase in current and foreseeable campus population levels above those analyzed in the” 2020 long range development plan, “based on a general increase in student enrollment and employee
The notice initiated the CEQA review process. (See
B.
In the Goldman EIR case, Save Berkeley prevailed in the trial court. (See Save Berkeley‘s Neighborhoods v. Regents of University of California (2023) 91 Cal.App.5th 872, 879-883 (Save Berkeley‘s Neighborhoods II). The court granted Save Berkeley‘s petition for a writ of mandate and, among other relief, ordered the Regents to void certain decisions to increase student enrollment; ” ‘suspend any further increases in student enrollment at [U.C.] Berkeley’ ” pending compliance with the writ and the court‘s discharge of the writ; and revise the supplemental EIR to address legal deficiencies identified by the court and certify the revised version. (See Save Berkeley‘s Neighborhoods II, at pp. 881-883.)
But the Regents won on appeal. Another division of this court vacated the trial court‘s judgment based on two developments that it held rendered the case moot. (Save Berkeley‘s Neighborhoods II, supra, 91 Cal.App.5th at pp. 884-892, 893.) First, the Regents had developed a new long-range development plan and analyzed it in yet another EIR. (Id. at pp. 884-885.) The new EIR superseded the EIR for the previous long range development plan, and it analyzed the enrollment increases that were addressed in the Goldman EIR. (Id. at p. 887.)
Second, the Legislature enacted Senate Bill No. 118, which clarified that ” ‘[e]nrollment or changes in enrollment, by themselves, do not constitute a project’ for purposes of CEQA.” (Save Berkeley‘s Neighborhoods II, supra, 91 Cal.App.5th at p. 888; see also
Save Berkeley‘s Neighborhoods II held that “the plain language of the statute renders unenforceable the trial court‘s order voiding any decisions by the Regents to increase student enrollment and suspending any further increases in student enrollment.” (Save Berkeley‘s Neighborhoods II, supra, 91 Cal.App.5th at pp. 891-892.) In addition, because the Regents had already prepared an EIR consistent with the requirements in
C.
Meanwhile, the litigation of the enrollment case proceeded in parallel with the Goldman EIR case. The trial court granted a demurrer by the Regents, which Save Berkeley overturned on appeal. (Save Berkeley‘s Neighborhoods I, supra, 51 Cal.App.5th at p. 234.) The parties also engaged in discovery. At some point, the trial court stayed the enrollment case in light of the Goldman EIR case. When the latter case was dismissed as moot, the court dismissed the enrollment case as moot, too.
Save Berkeley then filed a petition in the enrollment case requesting over $1.4 million in attorney fees. Its petition sought fees not only for work performed in the enrollment case but also for the Goldman EIR case. Save Berkeley argued that its efforts in the Goldman EIR case were ” ‘inextricably intertwined’ ” with the enrollment case and contributed to achieving its objectives.
The trial court granted the petition in part, concluding that Save Berkeley was entitled to fees because its writ petition had led the Regents to issue the notice committing to analyze the enrollment increases under CEQA, thus providing the primary relief sought in the enrollment case. The court awarded a total of $75,961.50 in fees, which included compensation for work performed through mid-September 2018, when Save Berkeley‘s counsel drafted a comment letter on the notice.
The court found that the fees incurred after mid-September 2018 “were not reasonably incurred,” however, because the Regents had already agreed to provide the requested relief when they issued the notice. The trial court found that “the continued litigation” after that point “did nothing to further the benefits of the” notice and that the “further litigation was ultimately unsuccessful and any benefits mooted.”
Finally, the trial court concluded that a fee enhancement was not warranted because the issues prior to the notice were not complex; the risk of non-payment was lessened because Save Berkeley‘s counsel billed at a reduced rate, so the case was only partially contingent; and the relief obtained was “limited.”
DISCUSSION
A.
To establish that a fee applicant is a “successful party” under
We review the trial court‘s decision for abuse of discretion, and we will reverse only if we find no reasonable basis for the court‘s conclusion. (Skinner v. Ken‘s Foods, Inc. (2020) 53 Cal.App.5th 938, 946.)
B.
Save Berkeley argues that the trial court abused its discretion in denying it fees incurred after mid-September 2018, when Save Berkeley completed its comment letter on the notice for the Goldman EIR. We disagree.
The trial court found that Save Berkeley prevailed on one litigation objective: obtaining a CEQA analysis of the University‘s past enrollment increases. The Regents agreed to provide that analysis when it announced, in the notice, that it would do so. Nothing that Save Berkeley did thereafter, in the trial court‘s view, produced any (lasting) success or public benefit, given the change in law and other circumstances that left the two cases moot. Accordingly, the court significantly reduced the request based on a pragmatic assessment of Save Berkeley‘s limited success.
Although Save Berkeley argues otherwise, the trial court‘s decision rests on well-settled law. A court must determine the
None of Save Berkeley‘s arguments has merit.
First, Save Berkeley makes a confusing argument that the trial court applied the wrong legal standard for determining when it became a successful party. Save Berkeley says that, because the notice was merely an unenforceable promise to analyze the enrollment increases, it provided no benefit to the public. The public benefit came months later when the Regents completed the Goldman EIR, which contained the environmental analysis. Therefore, Save Berkeley says, it is entitled to its attorney fees for the time between the notice and the completion of the EIR.
We disagree. The notice marked the point in time when the Regents voluntarily changed their behavior by agreeing to give Save Berkeley the primary relief it sought in its lawsuit (the analysis of past enrollment increases)—which is a requirement for being a “successful party” under this version of the catalyst theory. (
The question is whether Save Berkeley‘s litigation efforts (after the notice was issued) actually accomplished anything. (Ciani, supra, 25 Cal.App.4th at p. 577 [denying attorney fees incurred by plaintiff in collateral proceeding where plaintiff failed to show its efforts in that proceeding made any difference]; see Westside Community, supra, 33 Cal.3d at pp. 353-354.) Save Berkeley might have been entitled to more fees if it had established, for example, that the Regents would have abandoned their commitment to do the analysis except for the fact that Save Berkeley held their feet to the fire. The trial court‘s finding to the contrary, however, was supported by substantial evidence.
Save Berkeley contends that, after issuing the notice, the Regents drew out the litigation by pursuing demurrers. The Regents counter that Save Berkeley should have sought a stay. We conclude that these are matters for the trial court‘s discretion. (See, e.g., Skinner, supra, 53 Cal.App.5th at pp. 946, 951.)
Save Berkeley points to the Regents’ various arguments throughout both cases that CEQA did not require them to analyze
Likewise, the trial court was not required to determine whether Save Berkeley was entitled to its attorney fees for the Goldman EIR case on the theory that it was ” ‘inextricably intertwined’ ” with the enrollment case. When a party successfully obtains public benefits in one case, it is not entitled to attorney fees from collateral litigation unless it demonstrates a causal link between its efforts in the collateral matter and the public benefits. (Ciani, supra, 25 Cal.App.4th at pp. 575-577.) Here, however, all of Save Berkeley‘s efforts in the Goldman EIR litigation occurred after it had already secured the completion of
C.
Contrary to Save Berkeley‘s contention, the trial court did not abuse its discretion in declining to award a fee enhancement. In determining the amount of attorney fees, the trial court may award a fee enhancement or multiplier based on factors including the novelty and difficulty of the issues, the skill displayed by counsel, the opportunity cost to counsel of taking the case, and the risk of non-payment borne by counsel. (Graham, supra, 34 Cal.4th at p. 579, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132.) A fact intensive question, the determination as to whether a multiplier is appropriate in a given case is entrusted to the trial court‘s discretion. (Id. at p. 581.)
First, Save Berkeley maintains that a multiplier is warranted because the issues “involved complex questions of law that required interlocutory intervention” in Save Berkeley‘s Neighborhood I as well as litigation in both cases in response to the Regents’ legal strategy. However, Save Berkeley‘s argument relates to work performed after the completion of public comment on the notice. As a result, this argument fails for the same reasons explained above. Further, the question whether the Regents had a duty to analyze enrollment increases under CEQA was not complex: it involved “a routine application of basic CEQA requirements.” (Save Berkeley‘s Neighborhoods I, supra, 51 Cal.App.5th at p. 237.)
Second, Save Berkeley asserts that a multiplier is appropriate because the result obtained here was “excellent and important.” Although causing the Regents to conduct the CEQA analysis was an important and worthy goal, the trial court could reasonably have concluded that the results were mixed. Because the Legislature effectively mooted the cases, the courts never finally determined whether the University‘s analysis complied
Third, Save Berkeley contends that a multiplier is warranted based on its counsel‘s partial contingency risk alone. Even though the trial court could have exercised its discretion to award a multiplier based on this factor, the “court is not required to include a fee enhancement to the basic lodestar figure for contingent risk.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1138.) Here, the risk of non-payment was reduced not only because the contingency was partial, but because, as discussed, the basic legal duty the lawsuit sought to enforce was not novel. (See Save Berkeley‘s Neighborhoods I, supra, 51 Cal.App.5th at p. 237Graham, supra, 34 Cal.4th at p. 583.) We therefore find no abuse of discretion in the court‘s decision not to award a multiplier here. (See Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 741 [affirming trial court‘s decision not to award multiplier where counsel took the case on a partial contingency basis].)
DISPOSITION
The judgment is affirmed.
BURNS, J.
WE CONCUR:
SIMONS, ACTING P.J.
CHOU, J.