Filed 4/9/13 Whispering Palms Community Council v. County of San Diego CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



WHISPERING PALMS COMMUNITY                                           D061599
COUNCIL,

         Petitioner and Appellant,
                                                                     (Super. Ct. No. 37-2010-00051307-
         v.                                                          CU-WM-NC)

COUNTY OF SAN DIEGO et al.,

         Respondents and Appellants;

NEWPORT PACIFIC, INC.,

         Real Party in Interest and Appellant.


         APPEALS from an order of the Superior Court of San Diego County, Earl H.

Maas III, Judge. Affirmed as modified.



         The appeal and cross-appeal before us concern an award of attorney fees under

Code of Civil Procedure section 1021.5 (section 1021.5) to Whispering Palms

Community Council (WPCC). The trial court awarded attorney fees to WPCC for the

successful litigation of its petition for a writ of mandate against the County of San Diego
(the County)1 to require the preparation of an environmental impact report (EIR) under

the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et

seq.) for a real estate development proposed by real party in interest Newport Pacific, Inc.

(Newport Pacific).

       We conclude that the trial court did not abuse its discretion in determining that an

award of fees was warranted, but in making the award the trial court improperly included

$5,287.50 incurred by WPCC in retaining a traffic engineering expert. We reject

WPCC's contention in its cross-appeal that the trial court abused its discretion in not

awarding the full amount of fees that it sought. We therefore modify the trial court's

order to subtract $5,287.50 from the fee award, and we affirm the order as modified.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       As alleged in its petition, WPCC is a nonprofit public benefit corporation, with its

membership comprised of the residents of the Whispering Palms resort-type residential

community in an unincorporated area of the County, near Rancho Santa Fe. Newport

Pacific sought to develop a 4.31 acre lot in Whispering Palms (the Parcel). After

abandoning an original plan to develop an assisted living facility on the Parcel, Newport

Pacific applied to the County in 2002 for approval of a grading permit to develop a mixed

use commercial residential project on the Parcel (the Project). The Project encompassed



1     The County's Department of Public Works was also named in the petition as a
respondent. For the purposes of our discussion, we refer to the County and its
Department of Public Works, collectively, as "the County."
                                             2
a development of 9,559 square feet of retail space, 19,500 square feet of office space and

54 apartment units.

       Several years of administrative proceedings occurred at the County level, in which

WPCC participated, about whether an EIR would be required for the Project. The

County made a final determination in January 2010 that no EIR was required by issuing a

mitigated negative declaration and giving final approval for a grading permit.2

       WPCC filed a petition for writ of administrative mandamus against the County in

February 2010, naming Newport Pacific and Richard Cavanaugh as real parties in

interest.3 The petition alleged that the County violated CEQA by approving the Project

without requiring an EIR.

       The trial court granted the petition and set aside the County's approval of the

mitigated negative declaration. Specifically, the trial court found that there was

substantial evidence that a fair argument could be made that the Project would cause a

significant unmitigated impact on traffic in the area.



2       "CEQA provides that generally the governmental agency must prepare an EIR on
any project that may have a significant impact on the environment. . . . [¶] Alternatively,
if there is no substantial evidence of any net significant environmental effect in light of
revisions in the project that would mitigate any potentially significant effects, the agency
may adopt a mitigated negative declaration. [Citation.] A mitigated negative declaration
is one in which '(1) the proposed conditions "avoid the effects or mitigate the effects to a
point where clearly no significant effect on the environment would occur, and (2) there is
no substantial evidence in light of the whole record before the public agency that the
project, as revised, may have a significant effect on the environment." ([Pub. Resources
Code,] § 21064.5, italics added.)' " (Citizens for Responsible and Open Government v.
City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1331-1332, citations omitted.)

3      Cavanaugh is apparently the president of Newport Pacific.
                                              3
       WPCC filed a motion for an award of attorney fees and expenses pursuant to

section 1021.5, arguing that it was the prevailing party in litigation that conferred a

significant benefit on a large class of persons. WPCC requested that the attorney fee

award be based on a lodestar figure of $227,116.48, which included attorney fees and

expenses for significant prelitigation activity during the administrative proceedings, and

which was arrived at by using an hourly rate of $425 for the lead attorney, Julie

Hamilton. WPCC requested that the trial court apply a multiplier of 1.5 to the lodestar,

for a total fee award of $307,181.

       The County and Newport Pacific ("Appellants") opposed the motion, arguing that

WPCC did not meet the requirements for recovering attorney fees under section 1021.5

because the homeowners comprising the WPCC membership stood to gain financially

from the litigation in that they sought to protect their property values. Appellants also

challenged the amount of the fee award sought by WPCC.

       The trial court found that the requirements for an award of fees under section

1021.5 were met. It awarded WPCC fees, including costs and out-of-pocket expenses, of

$141,303.37. The award was based on a hourly rate for Hamilton of $350, rather than

$425 as she had sought, and did not reflect a multiplier to the lodestar amount. In

arriving at the award, the trial court reduced, by two-thirds, the prelitigation fees incurred

during the administrative proceedings to "account for the activities occurring more than 2

to 4 years before the action was even filed," which the trial court found be to "excessive."

       Appellants filed a notice of appeal from the fee award. WPCC cross-appealed,

challenging the amount of the fee award.

                                              4
                                               II

                                        DISCUSSION

A.     The Trial Court Properly Awarded Attorney Fees Pursuant to Section 1021.5

       1.     Applicable Legal Standards for an Award Under Section 1021.5

       Section 1021.5 provides for an award of attorney fees to a successful party "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 . . . 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." The

Legislature enacted the provision to codify the private attorney general doctrine

previously developed by the courts. (Vasquez v. State of California (2008) 45 Cal.4th

243, 250.) " 'It is well settled that the private attorney general theory applies to an action

to enforce provisions of CEQA.' " (Center for Biological Diversity v. County of San

Bernardino (2010) 188 Cal.App.4th 603, 612.)

       Applying the statutory criteria, " '[t]o obtain attorney fees under section 1021.5, the

party seeking fees must show 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.]' "

[Citation.] Because the statute states the criteria in the conjunctive, each must be



                                               5
satisfied to justify a fee award.' " (City of Maywood v. Los Angeles Unified School Dist.

(2012) 208 Cal.App.4th 362, 429.)

       Here, Appellants focus on just one of the statutory criteria. Specifically, they

contend that WPCC did not satisfy its burden to establish that the "financial burden of

private enforcement . . . [is] such as to make the award appropriate." (Code Civil Proc.,

§ 1021.5.)4

       Addressing the financial burden requirement, our Supreme Court has explained

that " '[t]his requirement focuses on the financial burdens and incentives involved in

bringing the lawsuit.' " (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1215

(Whitley).) "[T]he purpose of section 1021.5 is not to compensate with attorney fees only

those litigants who have altruistic or lofty motives, but rather all litigants and attorneys

who step forward to engage in public interest litigation when there are insufficient



4       In their appeal, Appellants do not challenge the trial court's ruling that WPPC
established that the litigation resulted in the enforcement of an important right affecting
the public interest and that a significant benefit was conferred on the general public or a
large class of persons. (See San Bernardino Valley Audubon Society, Inc. v. County of
San Bernardino (1984) 155 Cal.App.3d 738, 754 [important public rights are at stake in
litigation to enforce CEQA and compliance with planning and zoning laws].) Further, to
the extent that the statute requires a separate showing that a private action was necessary,
Appellants do not dispute that issue. (See Wilson v. San Luis Obispo County Democratic
Central Com. (2011) 192 Cal.App.4th 918, 926 [the " 'necessity and financial burden
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,' " ' and "the necessity of private enforcement . . . 'has long
been understood to mean simply that public enforcement is not available, or not
sufficiently available' "].) Indeed, " ' "[w]here suit is brought against governmental
agencies and officials [as here], the necessity of private enforcement is obvious." ' "
(Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (2000)
79 Cal.App.4th 505, 512.)
                                              6
financial incentives to justify the litigation in economic terms." (Id. at p. 1211, italics

added.) "[A] strong nonfinancial motivation does not change or alleviate the 'financial

burden' that a litigant bears. Only offsetting pecuniary gains can do that." (Id. at

p. 1217.)

       2.     Standard of Review

       "We review an attorney fee award under section 1021.5 generally for abuse of

discretion. Whether the statutory requirements have been satisfied so as to justify a fee

award is a question committed to the discretion of the trial court, unless the question turns

on statutory construction, which we review de novo." (Collins v. City of Los Angeles

(2012) 205 Cal.App.4th 140, 152-153.)

       Appellants contend that a de novo standard of review applies. They claim that this

case is like Whitley, in which our Supreme Court applied a de novo standard of review in

determining "whether a litigant's nonpecuniary interests can disqualify him or her from

eligibility for attorney fees under section 1021.5" (Whitley, supra, 50 Cal.4th at p. 1214),

or like Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312,

1318 (Edna Valley), which applied a de novo review to the issue of whether an award

under section 1021.5 may encompass fees incurred in an administrative proceeding. The

crucial difference between those cases and the instant case is that Whitley and Edna

Valley involved novel questions of statutory interpretation. Although making a

conclusory assertion that an issue of statutory construction is presented here, Appellants

have not identified any such issue, and we do not address one in our analysis. Instead,

the dispute before us is whether the already well-settled requirements for an award of

                                               7
attorney fees under section 1021.5 have been satisfied based on the specific facts of this

case. Accordingly, we determine whether the trial court abused its discretion, and we do

not conduct a de novo review.

       "An abuse of discretion occurs if, in light of the applicable law and considering all

of the relevant circumstances, the court's decision exceeds the bounds of reason and

results in a miscarriage of justice." (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th

151, 158 (Mejia).) "[A]n attorney fees award under section 1021.5 will only be reversed

where ' "it is clearly wrong or has no reasonable basis." ' " (Ryan v. California

Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1044.)

       3.     WPCC's Financial Interest Did Not Outweigh the Burden of Private
              Enforcement

       Applying the standard of review to the specific issue raised in this appeal, our

main inquiry is whether "the court's finding that [WPCC's] personal interest did not

outweigh the financial burden of private enforcement was manifestly unreasonable."

(Mejia, supra, 156 Cal.App.4th at p. 159.)

       Our Supreme Court in Whitley endorsed a specific method for a trial court to

decide whether a fee award is warranted in light of the financial burden of private

enforcement. " 'The trial court must first fix—or at least estimate—the monetary value of

the benefits obtained by the successful litigants themselves. . . . Once the court is able to

put some kind of number on the gains actually attained it must discount these total

benefits by some estimate of the probability of success at the time the vital litigation

decisions were made which eventually produced the successful outcome. . . . [¶] 'After


                                              8
approximating the estimated value of the case at the time the vital litigation decisions

were being made, the court must then turn to the costs of the litigation—the legal fees,

deposition costs, expert witness fees, etc., which may have been required to bring the

case to fruition. . . . [¶] The final step is to place the estimated value of the case beside

the actual cost and make the value judgment whether it is desirable to offer the bounty of

a court-awarded fee in order to encourage litigation of the sort involved in this case.' "

(Whitley, supra, 50 Cal.4th at pp. 1215-1216.) Applying this method, " '[a] bounty will

be appropriate except where the expected value of the litigant's own monetary award

exceeds by a substantial margin the actual litigation costs.' " (Id. at p. 1216, italics

added.)5

       Under the applicable approach, the first step is to attempt to estimate the monetary

value to WPCC if it succeeded in obtaining the relief it sought in the petition. As we will



5        We note that in the reply brief, Appellants quote certain language that they claim
to reflect the views of our Supreme Court in Whitley. First, they quote the statement that
" 'If the enforcement of the public interest is merely "coincidental to the attainment of . . .
personal goals" [citation] . . . then [the necessity and financial burden] requirement is not
met.' " (Whitley, supra, 50 Cal.4th at p. 1220.) Second, they quote the statement that
" '[s]ection 1021.5 is intended as a "bounty" for pursuing public interest litigation, not a
reward for litigants motivated by their own interests who coincidentally serve the
public.' " (Ibid.) Appellants misleadingly omit the internal quotation marks and fail to
explain that Whitely quoted the language, which appears in earlier cases, to illustrate the
unfortunately imprecise legal approach appearing in the preexisting case law. (Ibid.)
Contrary to Appellants' suggestion, Whitley did not endorse the quoted language. (Ibid.)
Under our Supreme Court's analysis, the test for whether the financial burden element is
met for the purposes of section 1021.5 is the four-part test set forth in Whitley. (Whitley,
at pp. 1215-1216.) It is not the more simplistic test of whether the litigants were
motivated by their own interests while coincidentally serving the public, as stated in the
quotes identified by Appellants.

                                               9
explain, our analysis begins and ends at this step because there is no concrete and

quantifiable monetary value of this case to WPCC's members that could be determined to

exceed the actual litigation costs.

       Initially, we note that the purported monetary benefit associated with this litigation

is the preservation of real estate values in the Whispering Palms community. However,

WPCC, which filed this action, is a nonprofit public benefit corporation that does not

own real estate in Whispering Palms and thus does not stand to benefit financially from a

successful lawsuit. That fact, however, does not end our analysis. Courts conducting the

financial burden analysis required by section 1021.5 have looked to the financial benefit

that the organization's members could obtain from the litigation. (See, e.g., California

Redevelopment Assn. v. Matosantos (2013) 212 Cal.App.4th 1457, 1480 [organization

"had a financial stake in this matter to the same extent as its members"]; California

Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 570

[same].) We therefore focus on the monetary value of the litigation to WPCC's members,

who are the homeowners in the Whispering Palms community.

       As WPCC points out, it is impossible to accurately quantify the monetary value of

this litigation to the members of WPCC. It is undisputed that at least certain members of

WPCC believed that their property values would decrease if the Project were built as

proposed. For example, WPCC newsletters mentioned the impact on property values as

one reason to oppose the Project. Some property owners sent letters to the County

expressing a belief that the Project, as proposed, would change the character of the

community and would thus depress property values. One letter, from a homeowner who

                                             10
worked as a real estate agent, attempted to quantify the financial impact of the Project by

estimating how much property values could decline for a small subset of properties under

a worst-case scenario, were the Project to be built. She explained that the 20 homes

located adjacent to the Parcel would likely see a greater decrease in property values

because of impacts on views and privacy, which could be as much as $300,000 per unit if

the Project was built.6 Appellants also point to a solicitation from WPCC to its members

for funding for this litigation, which stated that "legal costs could approach $100,000"

and that "[a]lthough this seems like a large sum, it is minimal when viewed as a

percentage of the community's aggregate property values." That specific statement refers

generally to the property values in the community to put the anticipated legal fees in

perspective but does not make any assertion that filing the litigation would prevent a

decrease in property values, let alone offer any specific quantification of the litigation's

expected financial value to WPCC's members. Indeed, all of the evidence that Appellants

rely on is far too vague and unspecific to permit any estimation of the monetary value of

the litigation — if any — to WPCC's members.


6      The letter stated, "Over 20 homeowners would have 2nd story apartment dwellers
looking directly down into the owners of Alcala homes on the north side of Via Galan.
As well as the owners having their views impeded to looking at open sky to looking at
back stairwells of apartments. Potentially this could be a security risk with such visual
exposure of a gated community, namely which units are vacant for theft. This will
seriously affect the value of all the homes in Alcala on this west side by as much as
$300,000 per unit for loss of privacy and views based on my realtor qualifications of
being a specialist in the Whispering Palms area." We note that, according to the WPCC
newsletters in the record, approximately 600 families live in the Whispering Palms
community, so that the letter quoted above was referring to the possible financial impact
on a small fraction of the residents.

                                              11
       Further, in addition to the uncertainty about the amount by which the Project

would decrease property values if built as planned, any financial benefit to WPCC's

members from the litigation is wholly speculative because it is contingent on future

events occurring after the conclusion of the litigation. The only relief sought by the

petition was the requirement that an EIR be prepared before the County decides whether

to approve the Project. The trial court could only speculate about what conclusions the

EIR would reach and how Newport Pacific would respond to the EIR. Thus it was

impossible for the trial court to know (1) whether the Project will eventually change from

the current proposal as a result of the preparation of the EIR; and (2) how those possible

changes to the Project might impact property values in Whispering Palms. If the Project

ends up going forward as planned after the EIR is prepared, WPCC's members could

experience a decrease in property values regardless of their success in this litigation.

       It is undisputed that the members of WPCC might obtain a financial benefit after

succeeding in this litigation because the Project may be changed or abandoned as a result

of the EIR, which in turn could prevent a decrease in property values in the Whispering

Palms community. However, any such benefit is completely speculative because it

depends on future events. Under any scenario, the litigation will not result in the receipt

of any funds that could be used to finance WPCC's litigation expenses. Under these

circumstances, and because the monetary value to WPCC's members of the litigation is

entirely speculative, the trial court could reasonably conclude that this case falls within




                                             12
the scope of cases supporting an award of fees under section 1021.5.7 As one court has

observed, when "there is no direct pecuniary benefit to petitioners in the judgment" and

"any future money advantage for petitioners is speculative," those "factors tend to favor a

grant of attorney's fees." (Galante Vineyards v. Monterey Peninsula Water Management

Dist. (1997) 60 Cal.App.4th 1109, 1127-1128.)8

       Because of the vague and speculative nature of the possible monetary benefits to

WPCC's members from the litigation, this case is very different from the main case cited

by Appellants — Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547, 560. In

Schwartz, an individual property owner successfully filed a mandamus petition to require

further review under CEQA of a power plant proposed to be built next to his property.

(Id. at pp. 551-552.) Schwartz concluded that the trial court was within its discretion to

deny a fee application under section 1021.5 based on the expected monetary value to the

property owner if he prevailed in the litigation, as opposed to the financial burden in

bringing suit, because the property owner's "own estimation" was that the power plant

"would diminish his property value by $100,000," and "[h]e claimed $22,000 in attorneys



7       Appellants contend that WPCC ignores the approach required by Whitley by
failing "to perform any analysis of its financial burdens and incentives in the litigation."
We disagree. The analysis employed by WPCC and the trial court is consistent with
Whitley because it focuses on the absence of a concrete and quantifiable financial interest
in the litigation by WPCC's members.

8       In contrast, when, unlike here, "the benefits [the prevailing party] obtained are
immediately and directly translated into monetary terms," the monetary value of the
litigation has been found to weigh against an award of attorney fees. (Beach Colony II v.
California Coastal Com. (1985) 166 Cal.App.3d 106, 113, italics added.)

                                             13
fees in obtaining the writ." (Schwartz, at p. 560.) Here, in contrast, it is not possible to

estimate the monetary value, if any, that WPCC's members would obtain from successful

litigation.

       The policy behind section 1021.5 also points toward the availability of a fee award

in this case. As our Supreme Court has explained, attorney fees are available under

section 1021.5 "[b]ecause public interest litigation often yields nonpecuniary and

intangible or widely diffused benefits" (Whitley, supra, 50 Cal.4th at p. 1219, italics

added), and "section 1021.5 . . . appears to be focused . . . on solving the problem of the

nonaffordability of litigation that will benefit the public but cannot pay its own way." (Id.

at p. 1225, italics added.) Awarding attorney fees in this case is consistent with the

purpose for the statute, as the members of WPCC — although having an abstract and

unquantifiable financial stake in the litigation — did not stand to obtain any direct

monetary value from the litigation that could be used to pay for the litigation. A citizen

group's interest in ensuring the preservation of a community's property values by

advocating good land use decisions will often — as here — be too uncertain and abstract

of a financial interest to preclude an award of attorney fees under section 1021.5 because

that interest, although related to the preservation of property values, will not yield any

funds to finance the litigation.

       In sum, with respect to the financial burden element required for an award under

section 1021.5, a fee award " 'will be appropriate except where the expected value of the

litigant's own monetary award exceeds by a substantial margin the actual litigation

costs.' " (Whitley, supra, 50 Cal.4th at p. 1216, italics added.) Here, because it was not

                                              14
possible for the trial court to estimate any expected value of the litigation to WPCC's

members, the trial court was well within its discretion to determine that the monetary

value of the case to WPCC's members did not exceed by a substantial margin the actual

cost of litigation.9 We accordingly reject Appellants' contention that the trial court erred

in concluding that this was an appropriate case in which to award fees under section

1021.5.

B.     Fees for the Traffic Engineering Expert Should Not Have Been Awarded Under
       Section 1021.5

       Appellants contend that the trial court improperly included the amount of

$5,287.50 incurred by WPCC in retaining a traffic engineer expert to prepare comment

letters for submission to the County during the administrative proceedings. According to

Appellants, the inclusion of the traffic engineer's fee was improper because "section

1021.5 does not permit an award of expert witness fees to a prevailing party."

       Appellants rely on Olson v. Automobile Club of Southern California (2008) 42

Cal.4th 1142 (Olson). In Olson, our Supreme Court concluded that "neither the language

nor the legislative history of section 1021.5 demonstrates that the statute permits an

award of expert witness fees." (Olson, supra, 42 Cal.4th at p. 1148.) As Olson

explained, in the case of section 1021.5, the statutory language clearly limits the award to

attorney fees, as it states that " '[u]pon motion, a court may award attorneys' fees to a


9       We need not, and do not, decide whether the proper measure of the actual
litigation costs in this case, for the purposes of the financial burden analysis is the amount
of $141,303.37 that the trial court set forth in its fee award or some other amount, such as
the amount of $66,986 that counsel for WPCC actually billed the client under a reduced
fee arrangement.
                                              15
successful party' " (Olson, at p. 1147), and "expert witness fees are not typically

considered a subset of attorney fees; rather, attorney fees and expert witness fees are

viewed as distinct and independent subsets of the costs of litigation." (Id. at p. 1148.)

Further, Olson pointed out that expert witness fees could not generally be awarded as

costs in conjunction with an attorney fee award under section 1021.5 because Code of

Civil Procedure, section 1033.5, subdivision (b)(1) "provides that, unless expressly

authorized by law, the fees of experts not appointed by the court are not allowable as

costs." (Olson, at pp. 1149-1150.)

       WPCC contends that the traffic engineer's fees should not fall under the rule

expressed in Olson because those fees were incurred in the administrative proceedings

before the County rather than in the proceedings in the trial court. The argument lacks

merit. Recent case law establishes that attorney fees incurred in administrative

proceedings necessary to exhaust administrative remedies prior to filing a lawsuit may

— at the trial court's discretion — be included in a fee award because the administrative

proceeding is part of the "action" referred to in section 1021.5. (Edna Valley, supra, 197

Cal.App.4th at p. 1320.) We conclude, however, that under this approach if the

administrative proceedings are to be considered part of the action, the same rules for

determining whether an expert witness fee is recoverable should apply to all parts of the

action — both the administrative proceeding and the trial court proceedings. There is no

basis in Edna Valley or any other authority cited by WPCC for allowing the recovery of

expert witness fees incurred in an administrative proceeding but not during court

proceedings, when both proceedings are part of the same action.

                                             16
       We accordingly conclude that the trial court improperly included in its fee award

the amount of $5,287.50 incurred by WPCC in retaining a traffic engineer expert. We

modify the attorney fee order to reduce the award by $5,287.50.

C.     WPCC's Cross-appeal from the Amount of the Fee Award Lacks Merit

       WPCC's cross-appeal challenges the amount of the trial court's fee award.

Specifically, WPPC contends that the trial court should have (1) applied a higher hourly

rate in calculating the reasonable attorney fees incurred in the action; and (2) awarded a

greater amount of fees for WPPC's participation in the prelitigation administrative

proceedings.

       We apply a deferential standard of review. When making an award of attorney

fees, "the trial court has broad authority to determine the amount of a reasonable fee."

(PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) " 'The "experienced trial

judge is the best judge of the value of professional services rendered in his court, and

while his judgment is of course subject to review, it will not be disturbed unless the

appellate court is convinced that it is clearly wrong"[ '] — meaning that it abused its

discretion." (Ibid.)

       We begin our analysis of whether the trial court abused its discretion by

considering the standards that the trial court must apply in setting the amount of a fee

award. "When a party is entitled to attorney fees under section 1021.5, the amount of the

award is determined according to the guidelines set forth in [Serrano v. Priest (1977) 20

Cal.3d 25, 48-49 (Serrano III)]." (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 321.)

"Serrano III requires the trial court to first determine a 'touchstone' or 'lodestar' figure

                                               17
based on a 'careful compilation of the time spent and reasonable hourly compensation for

each attorney . . . involved in the presentation of the case.' [Citations.] That figure may

then be increased or reduced by the application of a 'multiplier' after the trial court has

considered other factors concerning the lawsuit." (Press, at p. 322.) "Serrano III set

forth a number of factors the trial court may consider in adjusting the lodestar figure.

These include: '(1) the novelty and difficulty of the questions involved, and the skill

displayed in presenting them; (2) the extent to which the nature of the litigation precluded

other employment by the attorneys; (3) the contingent nature of the fee award, both from

the point of view of eventual victory on the merits and the point of view of establishing

eligibility for an award; (4) the fact that an award against the state would ultimately fall

upon the taxpayers; (5) the fact that the attorneys in question received public and

charitable funding for the purpose of bringing law suits of the character here involved;

[and] (6) the fact that the monies awarded would inure not to the benefit of the attorneys

involved but the organizations by which they are employed.' " (Press, at p. 322, fn. 12.)

"Just as a court has discretion to increase the lodestar under several factors in such a case,

it may also decrease it by looking at those same factors . . . ." (Graciano v. Robinson

Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 160-161.) " ' "There is no hard-and-fast rule

limiting the factors that may justify an exercise of judicial discretion to increase or

decrease a lodestar calculation." [Citation.] There are numerous such factors, and their

evaluation is entrusted to a trial court's sound discretion; any one of those factors may be

responsible for enhancing or reducing the lodestar.' " (Center for Biological Diversity v.

County of San Bernardino (2010) 185 Cal.App.4th 866, 901.)

                                              18
       Here, WPCC sought a fee award in the amount of $307,181 (based on a proposed

lodestar of $227,116.48 and requested multiplier), but the trial court awarded

$141,303.37. The trial court followed the lodestar approach in determining the amount of

fees to award. After determining a reasonable hourly rate, it declined to apply a

multiplier — either positive or negative — to the lodestar figure associated with the trial

court litigation. However, it applied a negative multiplier for the fees incurred during the

prelitigation administrative proceedings before the County, reducing the lodestar amount

by two-thirds.

       1.     The Trial Court Did Not Abuse Its Discretion in Determining a Reasonable
              Hourly Rate of $350

       WPCC's first contention is that the trial court abused its discretion in arriving at

the hourly rate for Hamilton, concluding that a reasonable hourly rate was $350 per hour

instead of $425 per hour as requested by Hamilton. "Generally, the reasonable hourly

rate used for the lodestar calculation 'is that prevailing in the community for similar

work.' " (Center for Biological Diversity v. County of San Bernardino, supra, 188

Cal.App.4th at p. 616.) Here, the evidence supports the trial court's determination that

$350 was a reasonable rate for Hamilton's work on the matter. As shown by a

declaration, counsel for Appellants charged an hourly rate of $250 for this litigation, and

for all new land use and environmental matters, he charges the rate of $325. A local

attorney practicing land use and CEQA litigation submitted evidence that his firm

charges public agency clients $250 to $315 per hour and charges private clients $325 to

$375 per hour. He opined that the prevailing market rate for experienced lawyers


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working for private clients in CEQA litigation is $325 per hour. In light of this evidence,

the trial court was well within its discretion to arrive at $350 as a reasonable hourly fee

for Hamilton's work.

       WPCC argues that the trial court abused its discretion in arriving at the hourly rate

of $350 because it purportedly took into account the fact that Hamilton had charged

WPCC a reduced rate of $225 per hour, rather than considering the reasonable rate

charged by comparable attorneys for comparable work. We agree that the trial court

would have applied an improper standard had it arrived at a reasonable hourly rate by

taking into account the reduced rate charged by Hamilton. " ' "The reasonable market

value of the attorney's services is the measure of a reasonable hourly rate. [Citations.]

This standard applies regardless of whether the attorneys claiming fees charge nothing for

their services, charge at below-market or discounted rates, represent the client on a

straight contingent fee basis, or are in-house counsel." ' " (Center for Biological Diversity

v. County of San Bernardino, supra, 188 Cal.App.4th at p. 620.) However, we reject

WPCC's characterization of the trial court's reasoning. According to our review of the

record, the trial court made very clear that it was arriving at the hourly rate of $350 for

Hamilton's work by considering the evidence submitted by Appellants and its own

experience with similar cases — not the rate Hamilton charged her client. The trial

court's order mentions the fact that Hamilton charged WPCC the hourly rate of $225, but

it does so in explaining that it is not applying a multiplier to account for Hamilton's risk

associated with the case, not in explaining how it arrived at a reasonable hourly rate.



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       2.     The Trial Court Did Not Abuse Its Discretion in Applying a Negative
              Multiplier for the Fees Incurred Prior to Filing the Litigation

       WPCC's second contention is that the trial court abused its discretion by applying

a negative multiplier of two-thirds to the fees that Hamilton incurred in representing

WPCC in the administrative proceedings before the County prior to filing this litigation.

       WPCC requested a fee award for 182 hours of work by Hamilton and 36 hours by

her staff in the administrative proceedings before the County. As Hamilton's time

records show, she was first retained in 2006 to perform work for WPCC to oppose the

Project during the administrative review process. During the period between 2006 and

the February 2010 filing of this lawsuit, Hamilton was involved in commenting on an

earlier version of a mitigated negative declaration from the County, and then in

commenting on a new version of the mitigated negative declaration that was circulated in

mid-2009 and is the subject of this lawsuit.

       WPCC contends that the trial court abused its discretion in applying a negative

multiplier to the fees associated with the administrative proceedings as "[a]ll of the pre-

litigation fees were necessary to exhaust administrative remedies prior to filing a CEQA

challenge[,]" and "WPCC should not be required to absorb 2/3 of these fees because [the

County] took 2½ years to decide to prepare a new [mitigated negative declaration] rather

than provide the response to comments the County led WPCC to believe would be

forthcoming." In short, WPCC believes that because it was the County, not WPCC, that

prolonged the administrative proceedings, the trial court should not have reduced the

award for the fees associated with those proceedings.


                                               21
        Although participation in an administrative proceeding necessary to exhaust

administrative remedies prior to filing a lawsuit is considered part of the "action" for the

purpose of awarding fees under section 1025.1 (Edna Valley, supra, 197 Cal.App.4th at

p. 1320), the trial court is not required to include all such fees in its award. "[T]he trial

court must consider the extent of the parties' participation in the administrative

proceeding and the cost and time necessary to reasonably prepare for a challenge to these

proceedings. The fees the court deems appropriate may range from no fees to reasonable

fees under the circumstances." (Ibid.) Here, based on its understanding of the

administrative record and Hamilton's time records, which it had before it, the trial court

concluded that it would be "excessive" to award fees associated with the entire 218 hours

expended by Hamilton and her staff during the administrative proceedings from 2006 to

2010, as much of that work was performed two to four years prior to the litigation and

involved a different version of the mitigated negative declaration. Applying the

deferential standard applicable to our review of the fee award, we reject WPCC's

contention that the trial court erred. The trial court had a reasonable basis for its decision

and applied the proper legal standards. It therefore did not abuse its discretion in

reducing the lodestar amount for the fees incurred prior to the filing of the litigation in the

trial court.




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                                     DISPOSITION

      The order awarding attorney fees to WPCC is modified to reduce the award by

$5,287.50. As modified, the order is affirmed. The parties shall bear their own costs.



                                                                                IRION, J.

WE CONCUR:



             MCCONNELL, P. J.



                   HUFFMAN, J.




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