United States: Abuse of Discretion Not Shown By Court’s Failure To "Show Its Arithmetic" In Significantly Reducing Claimed Attorney Fees In CEQA Litigation

Last Updated: April 27 2015
Article by Whitney Hodges and Tetlo N. Emmen

In Save Our Uniquely Rural Community Environment v. County of San Bernardino, __  Cal.App.4th ___, 2015 WL 1259781 (4th Dist., Div. 2, 2015) (SOURCE) , the Fourth District Court of Appeal affirmed the trial court's decision to significantly reduce plaintiff Save Our Rural Community Environment's (SOURCE) claim for attorney fees1 from $231,098 to $19,176.  The Fourth District found that the court's failure to provide an explicit analysis of its decision was not enough to indicate an abuse of discretion by the trial court.  The court determined reversal of the attorney fees award would require that the record contain some indication that the trial court had considered improper factors, or some evidence that the award had been snatched from "thin air."

The respondent, Al-Nur Islamic Center, a non-profit religious organization, planned to erect a 7,512 sq. ft. mosque in the County of San Bernardino.  SOURCE opposed the construction based on the environmental impacts SOURCE believed the project would cause, and filed a petition for writ of mandate and complaint for injunctive relief alleging multiple violations of the California Environmental Quality Act (CEQA).  The trial court agreed with one of SOURCE's contentions — that the administrative record did not support the determination that the project would have a less than significant impact to the environment due to impacts to wastewater disposal — and overturned the approval of the mitigated negative declaration and conditional use permit for the mosque.

SOURCE filed a motion for attorney fees seeking a total of $221,198 for work on the administrative proceedings and the writ petition and $9,900 for the attorney fee motion.  The trial court granted the motion for attorney fees but found the amount requested to be "outrageous" and reduced the fees awarded to $19,176.  SOURCE appealed.

The Fourth District held that it would need to determine that the trial court exercised its discretion in an "arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice" in order to overturn the trial court's determination.  In other words, according to the court, the trial court's ruling had to fall outside the bounds of reason under the applicable law and relevant facts.

The Fourth District rejected each of SOURCE's arguments on the grounds that, while its contentions were valid reasons why a court might award the fees that SOURCE sought, those contentions were not sufficient to demonstrate that the trial court's reduction of the attorney fees was an abuse of its discretion.  The trial court rested its decision on several factors: the limited success that SOURCE had at trial (the trial court rejected five of SOURCE's six contentions); the trial court's finding that the time and charges for preparation of work product were excessive and inflated; that the case was not overly complicated; and the trial court's finding that SOURCE had failed to provide justification for not seeking a lower-priced CEQA attorney in the San Bernardino-Riverside market.

Finally, the Fourth District undertook considerable analysis of SOURCE's contention that the amount awarded by the trial court must "have some discernible mathematical basis."  However, the court relied on Gorman v. Tassajara Development Corp., 178 Cal.App.4th 44 (2009), for the proposition that courts are not required to engage in any explicit analysis of attorney fees on the record, that "all intendment and presumptions are indulged to support the judgment on matters as to which the record is silent" and that error must be affirmatively shown.  Therefore, lack of explanation by the trial court alone was not enough to reverse an attorney fee award; there had to be some indication that improper factors were considered or the award was snatched "from thin air."  The trial court made it clear that it intended to substantially reduce the legal fees and provided legitimate justification.  Because the record showed that the trial court acted for legitimate reasons, the Fourth District could not find an abuse of discretion simply because the trial court "failed to make its arithmetic transparent."

As in SOURCE, the Fourth District recently affirmed a reduced attorney fees award in Otay Ranch, L.P. v. County of San Diego, 230 Cal.App.4th 60 (2014).  In Otay Ranch, L.P., the trial court awarded the County $37,528.14 when it originally sought a total of $66,638.14 in fees, which included the attorney and paralegal fees charged by outside counsel to prepare the administrative record.  While the Fourth District held that a public agency's recoverable record preparation costs may reasonably include the fees charged by outside counsel to prepare the record where the agency lacks the resources or personnel to prepare the administrative record needed for mandate proceedings, the court also found that it is within the trial court's discretion to determine what fees are "reasonable" and "necessary."

Given the line of cases that have recently led to SOURCE and Otay Ranch, L.P.,2 it may behoove prevailing parties to include substantial arguments in their motions demonstrating the reasonableness and necessity of attorney fees, including those related to preparation of the administrative record, in order to survive heightened scrutiny at the trial court level.  At a bare minimum, SOURCE reaffirms that trial courts have broad discretion to determine whether such attorney fees and administrative record preparation cost awards are reasonable under the circumstances of the case.  Further the case is just the latest among several recent cases where courts have reduced administrative record cost awards, which may encourage prevailing parties to better explain the steps utilized to minimize expenses incurred during record preparation and the proceeding.

For project proponents, who as a practical matter are required to indemnify3 hold harmless and defend lead agencies as a condition of approval, SOURCE represents an elevated level of motion pleading to substantiate cost and fee claims. This case may also encourage project opponents to be more selective in the CEQA cases they choose to litigate.

Footnotes

1.The opinion uses the term "attorney fees" throughout instead of "attorneys' fees."

2.St. Vincent's School for Boys, Catholic Charites CYO v. City of San Rafael, 161 Cal.App.4th 989 (2008) ("Where necessary to preserve the statutory purposes of cost containment and expediting CEQA litigation, the prevailing party in a CEQA action may recover 'reasonable costs or fees imposed for the preparation' of the record, even if the nonprevailing party elected to prepare the record."); Cal. Oak Found. v. Regents of Univ. of Cal., 188 Cal.App.4th 227, 295 (2010)  (respondent demonstrated that, given the history and complex nature of the proceedings, it is not surprising that its counsel "spent a great deal of time and expense ensuring the entire administrative record was prepared and copied in an appropriate manner." )

3.In Otay Ranch, L.P., the Fourth District awarded costs associated to record preparation in a scenario that involved an indemnity agreement but punted the discreet issue of fees and costs awarded under an indemnity provision.  (230 Cal.App.4th 60.)  In an unpublished part of its opinion, the court dodged petitioner's argument against the cost award based on an indemnity agreement between the county and the real party-in-interest.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
22 Oct 2019, Roundtable, Los Angeles, United States

Please join us for Sheppard Mullin's Ethics and Eggs: A Breakfast Roundtable to Discuss Ethics Issues in IP Matters.

23 Oct 2019, Other, Dallas, United States

Marketing Wants To Do What? Sweepstakes, Influencers, Loyalty, and Other Advertising and Promotional Fun

25 Oct 2019, Webinar, Los Angeles, United States

Matthew Bonovich will be a speaker at this webinar.

State and local governments continue to incentivize renewable energy and battery storage, causing an increase in mergers and acquisitions among producers and specialized renewables.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions