Trial Court: Superior Court of Sonoma County Trial Judge: Honorable Robert S. Boyd (Sonoma County Super. Ct. No. SCV243748)
The opinion of the court was delivered by: Rivera, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
The trial court awarded attorney fees to petitioners Healdsburg Citizens for Sustainable Solutions (HCSS), Janis Grattan*fn2 , and Millie Bisset (collectively, petitioners) after the court granted in part HCSS's petition for writ of mandate challenging an environmental impact report (EIR) under the California Environmental Quality Act, Public Resources Code section 21000 et seq. (CEQA). In their appeal from the order awarding attorney fees, defendant City of Healdsburg (the City) and real party in interest Sonoma Luxury Resort LLC (SLR) (collectively, defendants) raise a number of challenges to the award. In the published portion of this opinion, we reject defendants' contention that the trial court erred in awarding attorney fees for the legal services provided by Grattan. In the unpublished portion, we reject the remainder of defendants' challenges to the fee order, as well as petitioners' contention in their cross-appeal that the trial court should have used a multiplier to increase the award for Grattan's services. Finding no abuse of the trial court's discretion, we shall affirm the order awarding attorney fees.
Petitioners' first amended petition for writ of mandamus (the petition) challenged the certification of an EIR and project approvals for the Saggio Hills Resort development (the Project). SLR is the owner of the project site and the applicant for the project approvals, and the City owns a portion of the property proposed for wetlands mitigation. The project includes a resort, resort residences, a community park and trail system, a fire substation, and the dedication of land for future affordable housing. The petition alleged the City violated CEQA by approving the project without adopting feasible alternatives and mitigation measures to reduce the project's significant environmental impacts; that the EIR was inadequate and incomplete and neither its conclusions nor the City's findings certifying it, rejecting alternatives, and adopting a statement of overriding considerations were supported by substantial evidence; and the EIR did not respond adequately to comments or review a reasonable range of feasible alternatives.
The trial court granted the petition in several respects, finding the EIR defective in failing to study the water demand associated with vegetation to be planted as part of the mitigation measures, failing to consider the project's aesthetic effects on local vista points and trails, and failing to consider a sufficient range of viable, feasible alternatives. The court rejected HCSS's challenges to the EIR's analysis of greenhouse gas emissions, water supply and demand, mitigation of aesthetic impacts, impacts on oak habitat, and traffic mitigation, and to the statement of overriding considerations.
HCSS moved for attorney fees under Code of Civil Procedure*fn3 section 1021.5. The trial court granted the motion, ruling HCSS was entitled to attorney fees under section 1021.5 because the action had enforced an important right affecting the public, it had conferred benefits on a large group, and the necessity of the action and the financial burden made the award appropriate. The court concluded that for the purpose of determining fees, HCSS had been approximately 60 percent successful, and accordingly reduced most of the claimed fees by 40 percent. The court then applied a multiplier of 1.5 to the time claimed by one of HCSS's attorneys, Rachel Mansfield-Howlett, while declining to award the multiplier for the legal services provided by Grattan due to her involvement with HCSS and personal interest in the action, or to Susan Brandt-Hawley, an attorney who had consulted with petitioners' counsel but did not take the case on a contingent basis and had only limited involvement in the case. The total fee award was $382,189.73.
A. Award of Fees to Pro Per Litigant
"Section 1021.5 codifies the private attorney general doctrine the Supreme Court adopted in Serrano v. Priest (1977) 20 Cal.3d 25 [(Serrano III)]. [Citation.] ' " 'The doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public polities 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.' [Citation.] [¶] 'It is well settled that the private attorney general theory applies to an action to enforce provisions of CEQA.' [Citations.]" (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 611-612, fn. omitted.)*fn4
Defendants contend the trial court erred in awarding fees to one of the attorneys, Grattan, because she was a party to this action. The petitioners are HCSS, Grattan, and Millie Bisset. Grattan signed the verification included in the petition on behalf of HCSS, of which she was a member.
In her declaration in support of the motion for attorney fees, Grattan averred that the litigation was "exceptionally fact-intensive and legally-complex," and she had agreed to work on a contingent fee basis with Rachel Mansfield-Howlett, who was the lead attorney, in order to "help 'level the playing field' " with defendants, who were represented by "several very able and experienced attorneys."
The trial court found the action "successfully enforced important public rights, benefiting the public as a whole, and that the burdens and benefits of the lawsuit 'transcend' or outweigh Petitioners' personal interest, particularly their financial interest. Petitioners brought this action in order to require Respondent and Real Parties to fully comply with the requirements for an EIR, fully analyze and consider issues insufficiently addressed in the original EIR, and thus further the generally applicable CEQA policies of promoting transparent good government, full public disclosure, full public participation, and consideration for the environment." In denying a multiplier for Grattan's fees, the court noted that she "spent considerable time and effort, as a hired attorney, on behalf of Petitioners," but that she was "personally involved with Petitioners and somewhat personally interested in this action."
In the context of contractual attorney fees, our Supreme Court has held that "an attorney who chooses to litigate in propria persona and therefore does not pay or become liable to pay consideration in exchange for legal representation cannot recover 'reasonable attorney's fees' under [Civil Code] section 1717 as compensation for the time and effort he expends on his own behalf or for the professional business opportunities he forgoes as a result of his decision." (Trope v. Katz (1995) 11 Cal.4th 274, 292 (Trope).) The court based this conclusion in part on the language of Civil Code section 1717, which provides for mutuality of attorney fees "[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded" to the prevailing party. (Italics added.) By its terms, reasoned the court, the statute applied to contracts providing for attorney fees incurred to enforce the contract, and "[t]o 'incur' a fee, of course, is to 'become liable' for it [citation], i.e., to become obligated to pay it. It follows that an attorney litigating in propria persona cannot be said to 'incur' compensation for his time and his lost business opportunities." (Trope, supra, 11 Cal.4th at p. 280.) The Trope court also looked to dictionary definitions of the terms "fee" and " 'attorney fees,' " and concluded that "the usual and ordinary meaning of the words 'attorney's fees,' both in legal and in general usage, is the consideration that a litigant actually pays or becomes liable to pay in exchange for legal representation. An attorney litigating in propria persona pays no such compensation." (Ibid.) However, attorney fees may properly be awarded even where legal services were provided at no personal expense to the client, such as when legal work is performed pro bono publico or by a public interest law firm. (See Lolley v. Campbell (2002) 28 Cal.4th 367, 374-375; Serrano III, supra, 20 Cal.3d at pp. 47-48.)
The court in Trope explained, however, that its decision was not based on any of the traditional equitable exceptions to the American rule that each party pay its own attorney fees, such as the private attorney general, substantial benefit, and common fund theories. (Trope, supra, 11 Cal.4th at p. 284.) In ruling on cases involving such equitable exceptions, the court's "authority to shape the various theories of recovery . . . derived from our traditionally broader and more flexible 'inherent equitable powers.' " (Ibid.)*fn5 The court specifically declined to express an opinion on the application of its rule in the context of the equitable exceptions to the American rule. (Id. at p. 292.)*fn6
Here, Grattan is a named party to the case challenging an EIR under CEQA, and a member of the environmental organization that is also a party to the case. She was not lead counsel, but carried out work for lead counsel. The parties have drawn our attention to no cases precisely on point, and our own research has disclosed none. We are guided, however, by other cases ...