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Center for Biological Diversity v. County of San Bernardino

September 17, 2010


APPEAL from an order of the Superior Court of San Bernardino County, Donald R. Alvarez, Judge. Reversed with directions. (Super. Ct. No. SCVSS 133424).

The opinion of the court was delivered by: Mcconnell, P. J.


Center for Biological Diversity, Inc., San Diego Audubon Society, Save our Forest Association, and Sierra Club, plaintiffs in a CEQA (California Environmental Quality Act; Pub. Resources Code, § 21000 et seq.) action, appeal an order on attorney fees that was rendered on remand after an earlier appeal on the merits. The trial court originally awarded plaintiffs a reduced amount of fees under Code of Civil Procedure section 1021.5,*fn1 the private attorney general statute, based on their limited success at trial; they lost on two CEQA claims and won on one non-CEQA claim. On remand, plaintiffs moved for fees incurred on the appeal, and for supplemental fees incurred at the trial court level based on their greater success on appeal on the CEQA claims. The court determined it lacked jurisdiction to hear the supplemental fees matter because plaintiffs had dismissed their appeal of the postjudgment order on fees and the order was final. Plaintiffs persuasively contend the court's jurisdictional finding was in error. A motion for supplemental fees based on greater success on appeal does not challenge the original fee order and poses no jurisdictional impediment. Thus, we remand for consideration of supplemental fees.

Further, we agree with plaintiffs that the court abused its discretion with regard to the amount of the award of attorney fees for appellate work. Where unrefuted evidence shows that qualified local counsel is unavailable, it is error to base the allowable lodestar hourly rate on local rates without regard to reasonable hourly rates charged by competent counsel outside the local legal market. Additionally, where the record affirmatively shows that the court reduced the number of allowable hours by more than half without taking into account fundamental differences between trial and appellate work, remand is necessary. Accordingly, we reverse the order and direct the court to hold further proceedings on attorney fees.


Hawarden Development Company (Hawarden), real party in interest, seeks to develop 39.8 acres of property near Lake Arrowhead, California, into a 57-unit residential subdivision called Blue Ridge at Lake Arrowhead. In August 2005 the County of San Bernardino (the County) certified an environmental impact report (EIR) for the project and approved the project, subject to Hawarden's satisfaction of certain conditions, including its completion of 610 feet of Cumberland Road, a segment that runs through or adjacent to the development, and contributing a pro rata share toward the future cost of extending the road from the development to Highway 18.

Plaintiffs are environmental groups that appealed the County's actions to its board of supervisors, which denied the appeal and approved the project. Plaintiffs then challenged the approval in superior court by filing a petition for writ of mandate. The trial court granted writ relief on one of three issues, finding the County's "fire safety plan requires that Cumberland Road be completed prior to development occurring and that the general plan is unambiguous as to this issue." This issue is not a CEQA issue and rather pertains to the County's general plan. The court rejected plaintiffs' CEQA challenges, that substantial evidence did not support the EIR's findings pertaining to the project's impact on the Southern Rubber Boa, a threatened species found on the project site, and on water supply for the project. On January 3, 2007, the court issued a peremptory writ of mandate ordering the County to vacate and set aside its project approval.

The County and Hawarden appealed the judgment and plaintiffs cross-appealed. While the appeal was pending, plaintiffs moved for $191,729.05 in costs and attorney fees under section 1021.5. This amount included attorney fees of $98,615.35, an enhancement of $73,961.51 based on a multiplier of 1.75, costs of $4,352.19, and attorney fees of $14,800 for bringing the attorney fees motion (first fee motion). In its opposition, Hawarden argued the fee request should be "drastically reduced" because plaintiffs only "prevailed on one portion of their three causes of action," and "almost two-thirds of [plaintiffs'] brief was devoted to... one of the causes of action on which [they] failed to prevail." Hawarden asked the court to disallow fees for time spent on CEQA issues.

After a hearing on May 23, 2007, the court issued a minute order granting plaintiffs a reduced award. The order states: "Due to the limited relief granted on the underlying petition and the fact that the court finds the claimed fees to be excessive, the fees are reduced. [Plaintiffs are] awarded $50,000.00 in attorney fees inclusive of all staff time, plus $1,000 in costs."

The court issued a formal order on June 21, 2007. The County and Hawarden appealed the order and plaintiffs cross-appealed. The parties entered into a stipulation to stay the appeal of the fee award pending resolution of the pending appeal of the judgment. Division Two of the Fourth Appellate District*fn2, however, denied the parties' stipulation for a stay. The parties then entered into a stipulation to dismiss with prejudice their appeals of the attorney fees order.

In an unpublished opinion, Division Two of this District affirmed the judgment with respect to the appeal by the County and Hawarden. As to plaintiffs' appeal, the court held the trial court erred by denying their two CEQA claims. The court modified the judgment issuing the writ of mandate "to require [the] County to prepare an EIR that complies with CEQA in addressing the issues of water supply for the Blue Ridge project and the impact on the Southern Rubber Boa." (Center for Biological Diversity, Inc. v. County of San Bernardino (Oct. 27, 2008, E042316) [nonpub. opn.] (Hawarden I).)

On remand, the case was reassigned to a new trial judge per plaintiffs' peremptory challenge. Plaintiffs then moved for an additional fee award (second fee motion). In addition to seeking attorney fees for the appeal, they argued their greater success on appeal entitles them to a supplemental award for work performed at the trial court level. They pointed out that the County and Hawarden opposed their original fee request on the ground they achieved only partial success at trial, the court noted that reason for reducing the fee award, and the award of $50,000 was roughly a third of the augmented amount they requested for trial court work.

Plaintiffs sought a total of $563,926.45 in fees, including $136,230.45 for trial work; $180,324.65 for appellate work; an augment of $256,967.10 based on a multiplier of 2.0 for the contingent portion of the representation; and $40,405.25 for bringing the motion for fees. The request included an offset of $50,000 for the first fee award.

On July 2, 2009, after extensive briefing and a hearing, the court issued its ruling. The court determined it lacked jurisdiction to consider plaintiffs' request for supplemental fees for trial work because they had dismissed their appeal of the postjudgment order awarding $50,000 in fees and the order "has become final and cannot be altered."

For the appeal in Hawarden I, the court reduced the claimed fees to $62,530 on the ground they duplicated work done at the trial court level. Further, the court disallowed hourly rates of out-of-town counsel that exceeded local Inland Empire rates of $370, and it refused to apply a multiplier to the lodestar amount. The court allowed $10,000 in fees incurred in bringing the second fee motion.


I. Trial Court's Jurisdiction to Consider Motion for Supplemental Attorney Fees Under Section 1021.5

"The question of the trial court's jurisdiction is a pure question of law subject to our independent review." (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 537.)

Section 1021.5 codifies the private attorney general doctrine the Supreme Court adopted in Serrano v. Priest (1977) 20 Cal.3d 25. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933.) " ' "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.] Entitlement to fees under section 1021.5 requires a showing that the litigation: "(1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) [was necessary and] imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter." [Citation.]' [Citation.] In short, section 1021.5 acts as an incentive for the pursuit of public interest-related litigation that might otherwise have been too costly to bring." (Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (2000) 79 Cal.App.4th 505, 511.)*fn3

"It is well settled that the private attorney general theory applies to an action to enforce provisions of CEQA." (City of Carmel-By-The-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 254; San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 754 ["litigation brought to enforce the provisions of CEQA... has been ...

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