Case Number: BS171009    Hearing Date: February 11, 2021    Dept: 85

Los Angeles Waterkeeper v. State Water Resources Control Board, BS171009

Tentative decision on motion for attorneys’ fees: granted

Petitioner Los Angeles Waterkeeper (“Waterkeeper”) moves for an award of attorneys’ fees against Respondent State Water Resources Control Board (“State Board”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

  1. Statement of the Case
  2. PetitionBS171009

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under the California Constitution Article X, section 2 (“Article X, section 2”), the California Environmental Quality Act (“CEQA”), and the Water Code.  The verified Petition alleges in pertinent part as follows.

Respondent Regional Water Quality Control Board, Los Angeles Region (“Regional Board”) erred in approving the Waste Discharge Requirements (“WDR” or “permit”) and a National Pollutant Discharge Elimination System (“NPDES”) permit for Burbank’s Water Reclamation Plant (“Burbank plant”).  Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California.  Water Code section 100 (“section 100”) also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste.  In approving the WDR and NPDES permit for the Burbank plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether reauthorizing the discharge constitutes a waste and unreasonable use of a water resource.

The Regional Board also violated CEQA by failing to conduct the analysis required, include findings regarding feasible alternatives that could lessen environmental impacts, include findings regarding cumulative impacts of multiple WDR approvals, and then base its findings on substantial evidence.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and Water Code sections 100 and 275.  Section 100 places on the State Board a non-discretionary affirmative duty to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California.  Water Code section 275 (“section 275”) directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable methods of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Burbank plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use.  The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

  1. Petition BS171010

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under Article X, section 2, CEQA, and the Water Code.  The verified Petition alleges in pertinent part as follows.

The Regional Board erred in approving the WDR and NPDES permit for the Los Angeles and Glendale Water Reclamation Plant (“Glendale plant”).[2]  Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California.  Section 100 also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste.   In approving the WDR and NPDES permit for the Glendale plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether authorizing the discharge constitutes a waste and unreasonable use of a water resource.

The Regional Board also violated CEQA by failing to conduct the analysis required, include findings regarding feasible alternatives that could lessen environmental impacts, include findings regarding cumulative impacts of multiple WDR approvals, and base its findings on substantial evidence.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and sections 100 and 275.  Section 100 places a non-discretionary affirmative duty on the State Board to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California.  Section 275 directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable method of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Glendale plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use.  The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

  1. Petition BS171011

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under Article X, CEQA, and the Water Code.  The verified Petition alleges in pertinent part as follows.

The Regional Board erred in approving the WDR and NPDES permit for Los Angeles’ Donald C. Tillman Water Reclamation Plant (“Tillman plant”).  Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California.  Section 100 also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste.  In approving the WDR and NPDES permit for the Tillman plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether reauthorizing the discharge constitutes a waste and unreasonable use of a water resource.

The Regional Board also violated CEQA by failing to conduct the analysis required, include findings regarding feasible alternatives that could lessen environmental impacts, include findings regarding cumulative impacts of multiple WDR approvals, and base its findings on substantial evidence.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and sections 100 and 275.  Section 100 places a non-discretionary affirmative duty on the State Board to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California.  Section 275 directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable method of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Tillman plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use.  The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

  1. Petition BS171012

Petitioner Waterkeeper commenced this proceeding on September 26, 2017, alleging causes of action under Article X, CEQA, and the Water Code.  The operative pleading is the First Amended Petition (“FAP”), filed on November 2, 2018.  The FAP alleges in pertinent part as follows.

The Regional Board erred in approving the WDR and NPDES permit for Los Angeles’ Hyperion Water Reclamation Plant (“Hyperion plant”).  Article X, section 2 places a non-discretionary affirmative duty on the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste and unreasonable use of all water resources in California.  Section 100 also requires the Regional Board to determine whether a water use is reasonable and beneficial and to prevent waste.  In approving the WDR and NPDES permit for the Hyperion plant, the Regional Board failed to act in a manner required by law and failed to perform a mandatory duty by failing to analyze whether reauthorizing the discharge constitutes a waste and unreasonable use of a water resource.

The State Board failed to act in a manner required by law and failed to perform its mandatory duties pursuant to Article X, section 2 and sections 100 and 275.  Section 100 places a non-discretionary affirmative duty on the State Board to determine whether a water use is reasonable and beneficial and to prevent the waste and unreasonable use of all water resources in California.  Section 275 directs the State Board to take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, or unreasonable method of use.

The State Board failed to perform its duty by failing to determine whether the discharge from the Hyperion plant is a reasonable and beneficial use of a water resource and/or whether the rate of discharge constitutes a reasonable and beneficial use.  The State Board failed to take all appropriate proceedings or actions as required by law to prevent the waste, unreasonable use, and unreasonable method of use of water.

  1. Course of Proceedings

On October 12, 2018, Judge Palazuelos related Petitions BS171009, BS171010, BS171011, and BS171012 and consolidated them for briefing and trial.  BS 171009 was designated as the lead case.

On September 6, 2019, the court overruled Respondents’ demurrers to the four consolidated Petitions as to the State Board and sustained them as to the Regional Board without leave to amend.  The Regional Board was dismissed from the Petitions on October 10, 2019.

On August 4, 2020, the court granted in part Waterkeeper’s Petitions, directing the State Board to apply its expertise to evaluate the waste/unreasonable use of the four POTWs’ discharge.

  1. Applicable Law

CCP section 1021.5 (“section 1021.5”) codifies the “private attorney general” exception to the general rule that each side bears its own fees unless the parties contracted otherwise.  See CCP §1021.  Section 1021.5 permits a trial court to award fees to a successful party in any action where it has been established that (1) plaintiff’s action has resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate.  Conservatorship of Whitley, (2010) 50 Cal.4th 1206, 1214.  The burden is on the party requesting section 1021.5 fees to demonstrate all elements of the statute, including that the litigation costs, transcend his or her personal interest.  Millview County Water Dist. v. State Water Resources Control Bd., (“Millview”) (2016) 4 Cal.App.5th 759, 769.  The issue is committed to the trial court’s discretion.  Ibid.

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5.  Graham v. DaimlerChrysler Corp., (“Graham”) (2004) 34 Cal.4th 553, 565.  The party seeking attorney fees need not prevail on all of its alleged claims in order to qualify for an award.  Harbor v. Deukmejian, (“Harbor”) (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney, (“Daniels”) (1983) 146 Cal.App.3d 42, 55.  The party is considered “successful” under section 1021.5 if the litigation “contributed substantially to remedying the conditions at which it was directed.” Planned Parenthood v. Aakhus, (“Aakhus”) (1993) 14 Cal.App.4th 162, 174.  In other words, the “successful” party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”  Maria P. v. Riles, (“Maria P.”) (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (2004) 34 Cal.4th 604, 610.  Prevailing counsel who qualify for an award under section 1021.5 are entitled to compensation for all hours reasonably spent.  Serrano v. Unruh, (1982) 32 Cal.3d 621, 632–33.

Unlike the separate substantial benefit doctrine, “the ‘significant benefit’ that will justify an attorney fee award need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.” Woodland Hills Residents Assn., Inc. v. City Council, (“Woodland Hills”) (1979) 23 Cal.3d 917, 939.  “[T]he benefit may be conceptual or doctrinal and need not be actual or concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient.”  Braude v. Automobile Club of Southern Cal., (1986) 178 Cal.App.3d 994, 1011.  Moreover, the extent of the public benefit need not be great to justify an attorney fee award.  See, e.g.Protect Our Water v. County of Merced, (2005) 130 Cal.App.4th 488, 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.”  Woodland Hillssupra, 23 Cal.3d at 939-40.

The party seeking attorney’s fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hillssupra, 23 Cal. 3d at 941.  Although cases refer to this requirement as the “financial burden” criterion, nothing in the language of CCP section 1021.5 limits the consideration of the necessity and financial burden clause to solely financial interests.  Hammond v. Agran, (2002) 99 Cal.App.4th 115, 125.  “The idea is that the litigation for which fees are claimed must transcend one’s interests, whether pecuniary or not.”  Id. at 127.  The question is whether advancement of the public interest was merely coincidental to the attainment of the party’s personal goals.  Bowman v. City of Berkeley, (2005) 131 Cal.App.4th 173, 181.  The party seeking attorney fees bears the burden of establishing that its litigation costs transcend its personal interests.  Save Open Space Santa Monica Mountains v. Superior Court, (2000) 84 Cal.App.4th 235, 247.  The trial court’s application of the financial burden criterion involves a “realistic and practical comparison of the litigant’s personal interest with the cost of suit.” Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, (2000) 79 Cal.App.4th 505, 515.

 

  1. Statement of Facts
  2. Petitioner’s Evidence
  3. Waterkeeper’s Counsel

Attorneys Daniel Cooper (“Cooper”), Caroline Koch (“Koch”), Arthur Pugsley (“Pugsley”), Michelle Black (“Black”), Melissa Kelly (“Kelly”), and Kelly Clark (“Clark”), Doug Carstens (“Carstens”), and Amy Minteer (“Minteer”) and paralegal Jessica Hollinger (“Hollinger”) billed hours on behalf of Waterkeeper in the instant matter.  Cooper Decl., Exs. A, C; Pugsley Decl., ¶29, Ex. A.

Cooper represented Waterkeeper at every phase of case development and litigation since August 2017.  Cooper Decl., ¶¶ 33-34.  Cooper took over as lead counsel after Koch ended her representation as lead counsel and joined a non-profit.  Cooper Decl., ¶34.  Cooper spent 245.5 hours in his representation of Waterkeeper, which was necessary due to the novel and complex claims and the State Board’s vigorous litigation, including two demurrers, discovery, and trial.  Cooper Decl., ¶36, Ex. A.  Cooper’s hourly rate for the matter was $875 per hour.  Cooper Decl., ¶18.  Cooper has spent an additional 31.3 hours on the instant fee motion, billing $27,387.50 for the motion.  Cooper Decl., ¶38, Ex. B.

Koch represented Waterkeeper from September 5, 2017 to April 24, 2018 as lead counsel and participated in every phase of the case development and litigation during that time.  Koch Decl., ¶¶ 13-14.  Koch spent a total of 48.30 hours on the matter and requests a rate of $630 per hour.  Koch Decl., ¶¶ 9, 13.  Koch ended her representation of Waterkeeper in May 2018 and Cooper took over as lead counsel.  Koch Decl., ¶15.

Kelly represented Waterkeeper in both the administrative and litigation phases of this case between December 7, 2015 and August 9, 2018, spending a total of 133.82 hours on the matter during this period.  Kelly Decl., ¶11, Ex. A.  65.62 of these hours were spent pursuing administrative remedies, including by petition to the State Board, and another 68.2 hours assisting counsel in the pleadings stage of the mandamus actions.  Id.  Kelly requests a rate of $475 per hour.  Kelly Decl., ¶¶ 7-9.

Clark spent a total of 22.1 hours on the matter.  Clark Decl., ¶14.  Between October 17, 2018, and September 6, 2019, Clark worked on Waterkeeper’s opposition to the first demurrer the State Board filed in the action, spending 8.8 hours in finalizing the opposition and preparing for argument.  Clark Decl., ¶11.  Between June and August 4, 2020, Clark spent 9.2 hours participating in the drafting of the reply trial briefing and in preparation for the trial.  Clark Decl., ¶12.  Clark spent 4.2 hours preparing the present motion.  Pugsley Decl., ¶31, Ex. B.  Clark requests a rate of $630 per hour.  Clark Decl., ¶¶ 9-10.

Pugsley spent a total of 734.1 hours on the matter as Waterkeeper’s Senior Staff Attorney, which includes, but is not limited to, time spent researching and drafting memoranda assessing the issues likely to arise, participating in the administrative processes before the Regional and State Water Boards, working on the Petitions for Writs of Mandate; working on the partial consolidation of the cases; working on typical pre-trial notices and motions; participating in the demurrer meet-and-confer process; reviewing the demurrers and drafting and editing sections of the opposition to the demurrers; reviewing and editing the interrogatories to the State Board; reviewing the 11,000+ pages of “record” submitted by the State Board; drafting large sections of Waterkeeper’s briefs and reviewing and editing all briefs; reviewing and editing Requests for Judicial Notice, and drafting and editing Waterkeeper’s proposed writs and judgments, among other activities.  Pugsley Decl., ¶¶ 3, 29, 38, 39, Ex. A.  Pugsley spent an additional 22.4 hours on the instant motion.  Pugsley Decl., ¶31, Ex. B.  Pugsley requests a rate of $758 per hour.  Pugsley Decl., ¶29, Ex. A.

Pugsley separated the time he spent on paralegal tasks, totaling 43.2 hours, and seek recovery for that time at a paralegal rate of $150 per hour.  Pugsley Decl., ¶41, Ex. C.

Paralegal Hollinger spent 48.7 hours assisting Cooper from April 1, 2020 through entry of judgment and has spent an additional 95.1 hours to date in preparing the instant fee motion.  Cooper Decl., ¶40, Exs. C, D.  The amounts for total hours expended total $21,570.  Id.  Cooper is familiar with the hourly rates charged for paralegals in the Los Angeles Area market and opines that Hollinger’s billing rate of $150 per hour is within the range of prevailing market rates for paralegals during the relevant period in the greater Los Angeles Metropolitan Area.  Cooper Decl., ¶32.

Attorneys Black, Carstens, and Minteer of Chatten-Brown, Carstens & Minteer, LLP worked on researching and drafting the Petition for Writ of Mandate, drafting the responses to the demurrers, drafting the opening brief, and drafting the reply brief.  Black Decl., ¶¶ 5, 8, Ex. A.  Black spent 80.1 hours on the matter at a rate of $525 per hour.[3]  Black Decl. ¶5, Ex. A.  Minteer spent one hour on the matter at $675 per hour.  Id. Carstens spent 3.7 hours on the matter at $775 per hour.  Id.  Chatten-Brown, Carstens & Minteer, LLP also incurred 0.3 hours of paralegal work at $170 per hour.  Id.  Black opines that the rates requested for Chatten-Brown, Carstens & Minteer, LLP attorneys are reasonable and consistent with awards they received in other matters, as well as those obtained by other attorneys practicing environmental and land use law in Los Angeles.  Black Decl., ¶¶ 13-19.

Cooper opines that the rates requested by himself, Koch, Pugsley, and Black are within the reasonable 2020 market rate in the Los Angeles/Orange County metropolitan area for attorneys with their skill, experience, and reputation.  Cooper Decl., ¶¶ 18, 24, 29, 31.  Cooper’s opinion is based on his familiarity with market rates charged by attorneys practicing environmental and natural resources law in the San Francisco Bay Area, the greater Los Angeles Metropolitan area, and the San Diego area and his previous evaluations of such rates, which he used to support fee applications both for his firm and for his colleagues seeking fees in other citizen enforcement actions.  Cooper Decl., ¶¶ 10-14.  The requested rates are also consistent with those awarded in Wishtoyo Found. v. United Water Conservation Dist., (2:16-cv-03869-DOC-PLA).  Cooper Decl., ¶¶ 15-17.

  1. Supporting Declarations

Attorney Christopher Sproul (“Sproul”) opines that the rates requested by Cooper, Koch, Kelly, Black, and Pugsley are well within the range of non-contingent market rates charged for reasonably similar services by Los Angeles Area attorneys of reasonably similar qualifications and experience.  Sproul Decl., ¶14.  Sproul’s opinion is based on his review of market data and attorney fee awards in 2018 and 2019 in cases involving various types of complex civil litigation in the district court for the Central District of California, as well as awards in historic cases adjusted for inflation.  Sproul Decl., ¶¶ 16-63.

Attorney Michael Lozeau opines that the rates requested by Cooper, Pugsley, and Black are reasonable and within the range requested by attorneys of comparable skill and experience in the Los Angeles area.  Lozeau Decl., ¶¶ 22-28, 31.  Lozeau’s opinion is based on his familiarity and experience with the prevailing market rate for attorneys of comparable experience, his review of the records kept by Waterkeeper’s counsel, his review of recent surveys of billing rates for partners and associates published annually by the National Law Journal in 2016 and 2017, his knowledge of awards in similar cases, and comparison to the adjusted Laffey Matrix.  Lozeau Decl., ¶¶ 13-21, 27-30.

Attorney Drevet Hunt (“Hunt”) opines that the rates requested by Cooper, Koch, and Pugsley are within the range of prevailing market rates for attorneys and paralegals with comparable experience, expertise and skill practicing during this period in the greater Los Angeles Metropolitan area.  Hunt Decl., ¶¶ 21-22.  Hunt’s opinion is based on his familiarity with the commercial rates charged by attorneys of my experience and skill in the greater Los Angeles Metropolitan area as well as with court awarded rates for attorneys in the Central District and other sources of rate information.  Hunt Decl., ¶¶ 13-15, 20, 24.

  1.  State Board’s Evidence

            Waterkeeper filed four nearly identical writ petitions against the Regional Board and the State Board.  Katz Decl., ¶2.  Waterkeeper alleged that the Regional Board was required to conduct a waste and unreasonable use analysis before it reissued water quality permits to four publicly owned treatment works (“POTWs”) under the Clean Water Act and California Water Code. Id.   Waterkeeper also alleged that the Regional Board was required and failed to perform a CEQA analysis and failed to afford Waterkeeper due process when issuing the Hyperion permit.  Id.

Waterkeeper voluntarily dismissed its due process claim.  Id.  The court sustained the Regional Board’s demurrer finding that CEQA did not apply to the Regional Board’s issuance of these permits, and that the Regional Board did not have a duty to consider whether the four POTWs’ wastewater discharges were wasteful or unreasonable.  Id.

            Waterkeeper also alleged that, wholly independent of the Regional Board’s reissuance of the four permits, the State Board had a duty to analyze whether the POTWs’ discharges were wasteful or unreasonable.  Katz Decl., ¶3.  The court overruled the State Board’s demurrer and granted the writ after trial.  Id.  The State Board has appealed, and Waterkeeper has cross-appealed.  Id.

Waterkeeper filed a memorandum of costs seeking to recover filing fees, to which the State Board did not object.  Id.

            The Regional Board prepared an administrative record of its proceedings related to its reissuance of the permits issued to the four POTWs.  Katz Decl., ¶5.  That administrative record was never submitted to the court because the Regional Board’s demurrer was sustained.  Id. Waterkeeper’s claims against the Regional Board were all either voluntarily dismissed after a demurrer meet-and-confer or dismissed following demurrer.  Katz Decl., ¶6.

            Waterkeeper filed a notice of related cases, seeking to relate the four cases to a different case Waterkeeper had filed against the Regional Board pending before Judge Fruin.  Katz Decl., ¶7.  The Regional Board responded to the notice of related cases arguing that these four cases were not related to the earlier case.  Id.  Waterkeeper persisted in asserting its position, and Judge Fruin conducted a hearing on the issue on December 1, 2017.  Id.  Judge Fruin ultimately agreed with the Regional Board’s arguments and issued an order unrelating the cases.  Id.

Waterkeeper opposed relating these cases to the Wishtoyo I and II cases previously decided by the court.  Katz Decl., ¶8, Ex. B.  Waterkeeper stated that the claims in this matter are not the same or similar to the claims litigated in Wishtoyo I or Wishtoyo II.  Id.

Notice of entry of judgment was served in this case on October 9, 2020.  Katz Decl., ¶11.  Waterkeeper served its memorandum of costs on October 15, 2020, seeking recover of $1,981.42 in filing fees.  Katz Decl., ¶11, Ex. E.

Attorney Melissa A. Thorme represented Real Party-in-Interest the City of Los Angeles (“City”) in the matter.  Thorme Decl., ¶2.  Thorme’s hourly rate for the matter was $375 per hour, discounted from her regular rate of $415 per hour due to her contractual agreement and long-term relationship with the City.  Thorme Decl., ¶4.  The City incurred a total amount of $72,566.53 for Thorme’s services for the matter.  Thorme Decl., ¶5.

The State Board retained Gary Greenfield (“Greenfield”) to provide an analysis and opinion of the reasonableness of the rates sought by Waterkeeper’s counsel.  Greenfield Decl., ¶1.  Greenfield reviewed the motion, the memorandum of points and authorities, the declarations, the attached time and expense entries of Waterkeeper’s counsel and the other exhibits filed in support of the motion.  Greenfield Decl., ¶12, Ex. 3.

Greenfield created a database of the time and expense entries filed in support of the motion which revealed various problems with the billing entries of Waterkeeper’s counsel.  Greenfield Decl., ¶¶ 14-15.  There were numerous problems with the time and expense entries.  Greenfield Decl., ¶25.  A number of entries had no descriptions.  Id., Ex. 4.  There were expense entries where there were no amounts indicated.  Id., Ex. 5.  There were a number of entries where the work description had no date or indication of the time billed.  Id.  There were a number of entries where the amounts billed for individual tasks in an entry did not agree with the total amount billed for the entry.  Id., Ex. 6.

Waterkeeper’s description of the complexity of the action does not appear accurate.  Greenfield Decl., ¶27.  The fact that an issue is novel or that there are a number of legal issues that need to be addressed do not make an action complex.  Greenfield Decl., ¶28.  While the legal issues were not necessarily simple, the action was a relatively straightforward mandamus action.  Greenfield Decl., ¶29.  The major components were the filing of the four Petitions which were partially consolidated because they all raised similar issues, the joint demurrer by the respondents, the briefing for the final hearing, and the hearing itself which consisted entirely of oral argument and lasted less than three hours.  Id.

Contrary to Waterkeeper’s claim that there was extensive discovery, there was only one set of 16 straightforward interrogatories by Waterkeeper and responses from Respondent.   Respondent served no written discovery.  There were no depositions.  There was no document discovery.  Greenfield Decl., ¶30.

There were a number of time entries for work which was not appropriate to bill, either to a fee-paying client or to an opponent in a private attorney general case such as this, which should not be compensated in this case.  Greenfield Decl., ¶39.  Such entries include: (1) attempting to interest additional law firms in assisting in the litigation and attempting to obtain additional funding for the litigation; (2) work appropriate for secretarial or clerical personnel such as scanning, photocopying, serving and filing documents and related issues, and inputting edits and preparing tables of contents and authorities for filings; (3) work that is part of a law firm’s business operations and not properly chargeable to a fee-paying client or opponent in a fee-shifting case, such as working on a retention agreement and dealing with changes of firms and personnel; (4) dealing with errors by the law firm in court filings; (5) other miscellaneous entries such as communicating with Waterkeeper’s board, dealing with a press release, travel between San Francisco and Los Angeles, basic research (research in areas that a client would expect a lawyer to be familiar with as part of their education or experience and not to be billed for), and work related to other cases (such as the Wishtoyo case).  Greenfield Decl., ¶40, Exs. 7-10.

Waterkeeper also seeks expenses that are inappropriate or for which there is inadequate information provided.  Greenfield Decl., ¶52.  Waterkeeper is seeking to recover $799 for the purchase of a rate survey.  Greenfield Decl., ¶53, Ex. 18.  It is not appropriate to charge a client or opponent for the purchase of publications, particularly those that will likely be of use in other cases.  Id.

Waterkeeper’s counsel used “block-billing” for a substantial number of the time entries, making it impossible to precisely quantify the time for the various activities in the block-billed entries.  Greenfield Decl., ¶58.  Greenfield opines that Waterkeeper’s billed hours should be reduced by 10% to account for the various issues in the time entries.  Greenfield Decl., ¶63, Ex. 1.  The requested rates should be reduced by 25%.  Greenfield Decl., ¶64, Ex. 1.

Waterkeeper’s counsel also billed for excessive time for the work indicated.  Greenfield Decl., ¶¶ 41-42.   Examples include: (1) 7.1 hours billed by Kelly on preparing for the hearing on the Notice of Related Cases hearing; (2) 3.3 hours by Kelly for attending the Notice of Related Cases hearing itself (the task in the entry only says .3 hours); (3) 7.0 hours by Kelly for which there is no description but which appears to be related to the hearing because of the entries of other billers; (4) three people attending a status conference, with one person traveling from San Francisco and billing the travel time and related expenses; (5) 3.7 hours by Pugsley for “review pleadings for TSC” before the first trial setting conference when the only pleadings were the Petitions and the Demurrer; and (6) between 130 and 140 hours of time billed for preparing for the two demurrer hearings.  Greenfield Decl., ¶42, Ex. 21.

Greenfield prepared separate database reports for entries relating to the work on the administrative proceedings, opposing the demurrers, preparation of the administrative record of the Regional Board proceedings, and relating to Waterkeeper’s unsuccessful attempt to relate a fifth case.  Greenfield Decl., ¶¶ 43-47, Exs. 12-15.

Several of the sources of the rate information which Waterkeeper relies upon are not provided with the motion (the Declarations of Richard Pearl and of Barrett Litt) so Waterkeeper’s characterization of what they show cannot be confirmed or analyzed.  Greenfield Decl., ¶48.

The sources of rates referred to in the various rate surveys relied upon by Waterkeeper only look at seniority level and are primarily rates of large firms.  Greenfield Decl., ¶49.  For example, Lozeau refers to the 2016 and 2017 National Law Journal rate surveys in his declaration which draw on the rates of a number of firms, but the rates he references in his declaration are all rates from very large firms in Los Angeles (other than one firm which is a bankruptcy firm).  Id.  Similarly, the 2018 Partnership Compensation Survey relied upon by Lozeau is based entirely on the rates of large firms (the AmLaw 200, the NLJ 350 and Global 100).  While large firms are part of the market, they are not the entire market.  Greenfield Decl., ¶49.

Waterkeeper’s counsel are seeking rates consistent with those of large commercial law firms in Los Angeles for lawyers of comparable seniority.  Greenfield Decl., ¶50.  However, in large commercial firm, in a well-managed case most of the hours are billed by the junior and mid-level personnel.  Id.  In this case, 78% of the time and 84% of the fees billed by lawyers were billed by the two most senior personnel: Pugsley and Cooper.  Id.  As a result, the blended rate for the lawyers (the average rate for each hour billed) was $739 per hour, that is, $739 per hour for every hour billed by a lawyer on the case.  Id.  While the rate being sought for Pugsley’s work as a lawyer is that of a senior lawyer, he billed a very substantial majority of the research time, most (if not all) of which would have been conducted by more junior lawyers at large firms.  Greenfield Decl., ¶51, Ex. 17.

Waterkeeper chose, for its main outside counsel, lawyers located in San Francisco, despite the fact that the lawsuit was filed in Los Angeles.  Waterkeeper is not entitled to recover the travel time or expenses for its San Francisco lawyers flying back and forth to Los Angeles, as well as for other travel-related expenses.  Greenfield Decl., ¶54, Ex. 19.

Waterkeeper is seeking filing fees of $1,800 in its Memorandum of Costs, but also $1,760 in filing fees as an expense.  Greenfield Decl., ¶55, Ex. 18.  It is seeking to recover fees of $181.42 for electronic filing or service, but it appears that they may be seeking to recover these same expenses on the instant motion.  Id.  Waterkeeper is not entitled to recover the same expenses twice, but there is inadequate information provided in either the Memorandum of Costs or in the expense entries to determine whether or not these are duplicative.  Id.  Waterkeeper is also seeking recovery of expenses for which the amounts for each expense are not indicated, but which total $443.46.  Greenfield Decl., ¶56.

  1. Analysis

Petitioner Waterkeeper seeks a total attorney’s fee award of $1,917,687.81, including a lodestar of $944,077.30, with a multiplier of 2 on the contingent portion ($904,077.30) plus $86,374.20 for the instant motion, and $8,255.51 in costs.  Respondent State Board does not dispute Waterkeeper’s entitlement to an award of attorneys’ fees[4] but argues that the requested rates and hours are unreasonable.

  1. Entitlement to Fees
  2. Successful Party

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” to effectuate the policy underlying section 1021.5.  Graham v. DaimlerChrysler Corpsupra, 34 Cal.4th at 565.  The party seeking attorney’s fees need not prevail on all alleged claims to qualify for an award.  Harbor v. Deukmejian, supra, 43 Cal.3d at 1103.  A party is successful under section 1021.5 if the party succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”  Maria P.supra, 43 Cal.3d at 1292.

Waterkeeper is a successful party for the purposes of section 1021.5.  Waterkeeper secured a judgment in its favor that the State Board has a duty to comprehensively plan to prevent waste and unreasonable use in the discharge of wastewater and that no action undertaken as yet has fulfilled such duty.  Mot. at 6.

  1. Important Right Affecting the Public Interest

The first prong of the section 1021.5 test — whether a petitioner’s action has resulted in the enforcement of an important right affecting the public interest — requires a determination of the strength or societal importance of the right involved.  Roybal v. Governing Bd. of Salinas City Elementary School Dist., (2008) 159 Cal.App.4th 1143, 1148.  The right, whether constitutional or statutory, must be an important right affecting the public interest, not something involving trivial or peripheral public policies.  Ibid.  The societal importance of a right generally is determined by realistically assessing the significance of that right in terms of its relationship to the achievement of fundamental legislative goals.  Robinson v. City of Chowchilla, (“Robinson”) (2011) 202 Cal.App.4th 382, 394.  The type of “important rights” that may be the subject of litigation in which private attorney general fees may be awarded include environmental protection.  Bui v. Nguyen, (2014) 230 Cal.App.4th 1357, 1366.

Waterkeeper has met this prong of the test.  Its litigation sought to ensure the State Board complies with its constitutional duty to prevent waste and unreasonable use of water, as well as the Legislature’s directive to undertake all possible steps to encourage development of water recycling facilities in service of the peace, health, safety and welfare of the people of the state.  Mot. at 9.  The State Board’s compliance with its constitutional duties is an important right that affects the public interest.

  1. Significant Benefit on the General Public

The second prong of the section 1021.5 test is whether plaintiff’s action has conferred a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons.  The trial court is required to determine the significance of the benefit as well as the size of the group favorably impacted by making a realistic assessment, in light of all the circumstances, of the gains which have resulted in a particular case.  Bui v. Nguyen, (2014) 230 Cal.App.4th 1357, 1366.

As Waterkeeper notes, a significant benefit is implicit when a lawsuit leads to implementation of a fundamental legislative policy, such as those embodied in the California Constitution and Water Code.  Starbird v. County of San Benito, (1981) 122 Cal.App.3d 657, 665.  Waterkeeper’s litigation affects its members and all Californians, who will benefit from analysis and regulation of the POTWs’ wastewater discharges.

  1. Necessity and Financial Burden of Private Enforcement

The third prong asks whether the necessity and financial burden of private enforcement are such as to make the award appropriate.  This prong encompasses two issues: (1) whether private enforcement was necessary and (2) whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys.  Lyons v. Chinese Hospital Assn., (“Lyons”) (2006) 136 Cal.App.4th 1331, 1348.

The necessity of private enforcement becomes clear when the action proceeds against only the governmental agencies that bear responsibility for the alleged violations.  Id.; see Woodland Hillssupra, 23 Cal.3d at 941.  As the State Board is a governmental agency, private enforcement was necessary.

 Waterkeeper had no financial incentives in bringing the action and sought no monetary award or damages.  Mot. at 10-11; see Millview County Water Dist. v. State Water Resources Control Bd., (2016) 4 Cal.App.5th 759, 768.  Without financial incentives, it is plain that the cost of Waterkeeper’s legal victory transcended its personal interest in the suit.  Woodland Hillssupra, 23 Cal.3d at 941.  Waterkeeper is entitled to an award of section 1021.5 attorney’s fees.

  1. Reasonableness

The court employs the “lodestar” analysis when looking to determine the “reasonableness” of an attorney’s fee award.  The lodestar figure is calculated by multiplying the number of hours reasonably spent by the reasonable market billing rate.  Serrano v. Priest, (1977) 20 Cal.3d 25, 48.

Waterkeeper’s counsel claim to have spent 1356.9 hours of merits-related work and 153 hours of motion-related work for a total of 1509.9 hours.

State Board argues that the motion should be denied entirely because Waterkeeper’s request for an award of $1,917,687.81 is outrageously unreasonable.  Opp. at 7.  The court may deny a fee request in its entirety when the request is outrageously unreasonable.  Serrano v. Unruh, (1982) 32 Cal.3d 621, 635.  Such denials are necessary to discourage unreasonable demands and greed.  Ibid.  While the court agrees that both the requested rates and hours are excessive – particularly where two senior attorneys performed 72% of the work, it does not find the request so outrageously unreasonable as to require complete denial of the motion.

  1. Hourly Rates

Generally, the reasonable hourly rate used for the lodestar calculation is the rate prevailing in the community for similar work.  Center for Biological Diversity v. County of San Bernardino, (2010) 188 Cal.App.4th 603, 616.  In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.  569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., (2016) 6 Cal.App.5th 426, 437.

Waterkeeper requests a rate of $875 per hour for Cooper, $630 per hour for Koch, $758 per hour for Pugsley, $630 per hour for Black, $475 per hour for Kelly, $630 per hour for Clark, and $150 per hour for paralegal services.  Waterkeeper asserts that these rates are reasonable for lawyers with these levels of experience and are within the range of the market rates charged for reasonably similar services by attorneys of comparable skill, reputation, and experience for similarly complex litigation in the Los Angeles Area.  Cooper Decl. at ¶¶ 2–8; Pugsley Decl. at ¶¶ 7–24; Koch Decl. at ¶¶ 2–8; Black Decl. at ¶¶ 9– 10; Kelly Decl. at ¶¶ 2–6; Clark Decl. at ¶¶ 2–8.  Waterkeeper relies on declarations from Sproul, Lozeau, and Hunt in support of their assertion that their requested hourly rates are well within the range charged by Los Angeles law firms and are therefore presumptively reasonable.  Sproul Decl., ¶14; Lozeau Decl., ¶¶ 22-28, 31; Hunt Decl., ¶¶ 21-22.  Waterkeeper also asserts the rates are consistent with those set forth in the National Law Journal billing rate survey from 2014.  Mot. at 15; Reply at 1.

State Board disputes that the requested rates are reasonable or representative of those attorneys in the community conducting litigation of the same type.  Opp. at 8.  State Board notes that Melissa Thorme, Esq., works in a private law firm and Real Party-in-Interest City retained her.[5] Thorme has a normal hourly rate of $415, which she discounted to $375 per hour for the City.  Opp. at 8; Thorme Decl., ¶¶ 2-3.  State Board argues that Thorme’s rate is the only direct evidence of the rate a Los Angeles attorney charges for this type of work and that it should represent the prevailing market rate.  Opp. at 8.

State Board notes that Waterkeeper excludes from its evidence a recent award of attorneys’ fees by the Sacramento Superior Court to some of the same counsel in a similar type of mandamus case against the State Board.  That court awarded lower hourly rates for Cooper ($665/hr), Koch ($525/hr), Pugsley ($510/hr), and Clark ($450/hr).  Opp. at 9; Katz Decl. Ex. A.  While these rates were for the Sacramento market, they are instructive because the case involved similar mandamus work.  Opp. at 9.

State Board contends that Waterkeeper’s own declarations support a conclusion that they are asking for excessive rates.  Opp. at 9.  Black’s declaration reports hourly rate ranges of $300-550, $300-500, $300-550, $300-625, $225-650, and $300-700 for CEQA or land use mandamus work.  Opp. at 9; Black Decl. ¶¶ 13-18.  Lozeau’s declaration offers the only other hourly rate from a mandamus case and states that in 2018 the Los Angeles County Superior Court awarded hourly rates between $350-$600 in what appears to be a CEQA land use mandamus case.  Lozeau Decl. ¶19.  Opp. at 9.

State Board also challenges Waterkeeper’s reliance on the Wishtoyo cases as a basis to award their requested rates.  Opp. at 9.  Wishtoyo was not a mandamus case, but a highly technical and fact-intensive federal Endangered Species Act case that was significantly more complex.  Wishtoyo involved extensive discovery, 18 separate motions, and 11 days of trial.  Opp. at 9.  The instant matter did not involve the same type of work and the rates awarded in Wishtoyo do not support Waterkeeper’s request for similar rates.  Opp. at 9.

State Board notes that the supporting declarations of Sproul and Hunt concerning market rates fail to show any familiarity with the prevailing rates for mandamus work.  Opp. at 10.  The Cooper and Hunt declarations also rely on Pearl and Litt declarations purportedly filed by different attorneys in different cases, but these declarations were not submitted to the court.  Opp. at 10.

State Board argues that Cooper’s and Pugsley’s rates should be reduced because they both consistently performed tasks that should have been delegated to more junior, lower hourly rate attorneys.  Opp. at 10.  As stated above, 72% of the hours were performed by Cooper and Pugsley, and they are the two attorneys seeking the highest hourly rate.  Opp. at 10.  An outsized number of their hours were spent on tasks like research, document filing, record review, and initial drafting that a paying client would have required be delegated to more junior attorneys who bill at lower hourly rates.  Opp. at 10.  State Board contends that the requested rates should be reduced by at least 25%.  Opp. at 11.

Waterkeeper disputes that this case was less complex than Wishtoyo, but it does not deny that the federal case involved extensive discovery, 18 motions, and 11 days of trial.  See Opp. at 9.  Waterkeeper objects to State Board’s proposed 25% reduction, noting that State Board fails to account for the difference between the Sacramento and Los Angeles legal markets.  Reply at 2.  Waterkeeper also objects to reducing Cooper and Pugsley’s rates based on their failure to delegate.  Reply at 3.  The litigation focused on complicated legal issues, with limited discovery, a limited record, and few delegable tasks.  Reply at 3.  The senior attorneys took a case that commenced in 2017 from start to finish, naturally incurring a substantial number of hours.  Reply at 3.

With the exception of the rate requested for paralegal services, the court finds the requested rates to be excessive.  The court agrees with the State Board that seeking the highest rates for the two attorneys who performed 72% of the work, including tasks that a large law firm would delegate to junior associates, is not consistent with market rates in Los Angeles.  The court exercises its discretion to reduce the rates based on its knowledge of market rates in Los Angeles, the rate charged by Thorme in representing the City, and Waterkeeper’s own declarations showing lower rate awards for similar work.  Thorme Decl., ¶¶ 2-3; Black Decl. ¶¶ 13-18.  Cooper’s rate is reduced to $656 per hour, Pugsley’s is reduced to $568 per hour, the rates of Koch, Clark, and Black are reduced to $472 per hour, and Kelly’s rate is reduced to $356 per hour.

With these reductions, the lodestar of $944,077.30 is reduced to $710,966.60.

  1. Reasonable Number of Hours

An attorney’s fee award should ordinarily include compensation only for all the hours reasonably spent on the litigation.  Ketchum v. Moses, (2001) 24 Cal.4th 1122, 1133.  The trial court must carefully review attorney documentation of hours expended and eliminate padding in the form of inefficient or duplicative efforts.  Id. at 1132.

Waterkeeper asserts the requested hours are reasonable as they were documented in detail, carefully reviewed and adjusted, and were reasonably spent.  Mot. at 12-13.  Waterkeeper contends that it efficiently litigated the matter and the hours spent were necessary due to State Board’s aggressive defense of the matter.  Mot. at 13-14

  1. Regional Board Claims

State Board challenges 362.93 hours incurred by Waterkeeper in pursuing it claims made against the Regional Board.  Opp. at 12-13.  Because the Regional Board is a distinct legal entity from State Board, Waterkeeper’s claims against the Regional Board differed from those against State Board.  Opp. at 12.  Waterkeeper was unsuccessful in all its claims against the Regional Board, and the hours incurred in pursuing those claims should not be compensable against State Board.  Opp. at 12.

State Board specifically challenges 92.71 hours that Waterkeeper’s attorneys spent in the Regional Board’s administrative process of renewing the four NPDES permits, preparing the administrative record from the Regional Board’s proceeding, and pursuing claims against the Regional Board in this court for violating a mandatory duty, CEQA, and due process.  Opp. at 12-13; Greenfield Decl., Exs. 12-14.

Attorneys’ fees may be awarded for work during administrative proceedings if the proceedings were useful and of a type ordinarily necessary to the vindication of the public interest litigated by the private party.  Best v. California Apprenticeship Council, (1987) 193 Cal.App.3d 1448, 1459; Californians for Responsible Toxics Management v. Kizer, (1989) 211 Cal.App.3d 961, 970–72 (deducting from lodestar the hours spent on regional water board administrative proceedings and discovery).

Waterkeeper claims that it is entitled to compensation for its attorneys’ services during the Regional Board proceedings.  Mot. at 14.  Waterkeeper asserts that the Regional Board claims focused on the same four POTWs at issue against State Board and were based on the same common facts and legal theories.  Reply at 2-3.  Waterkeeper asserts that its work in the Regional Board administrative proceedings for permit issuance was useful and directly contributed to litigation against State Board, as shown by the fact that State Board’s “record” incorporated significant portions of the Regional Board administrative record.  Reply at 3.

This is sufficient to show that Waterkeeper should fully recover for the administrative process.  The administrative process before the Regional Board concerned the renewal of the NPDES permits for the four POTWs.   State Board notes that Waterkeeper expressly argued in opposition to State Board’s demurrer that it was not seeking to compel State Board to review the Regional Board’s permitting decision.  This is true, but it was necessary for Waterkeeper to participate in the Regional Board administrative process and claim the POTWs’ discharge is a   waste/unreasonable use in order to bring its similar claim against State Board.  Otherwise, State Board could have argued that the Regional Boards bear this responsibility in issuing permits.  Waterkeeper has shown that the Regional Board administrative proceedings were useful and necessary to its pursuit of claims against State Board.  The 92.71 hours will remain as part of the lodestar.

Waterkeeper’s claims against the Regional Board were ultimately dismissed after its demurrer was sustained and, as a result, the administrative record was never used.  State Board should not have to pay the fees associated with this record preparation, and the 14.22 hours that Black, Koch, Kelly, and Pugsley spent preparing and reviewing the Regional Board administrative record must be eliminated.  That administrative record was never used and was distinct from the documents that the parties stipulated into evidence.  Katz Decl., ¶5.  The lodestar will be reduced by 14.22 hours at the average reduced rate of $467 per hour, or $6,640.74.  Greenfield Decl., Ex. 14.

Respondent represents that Waterkeeper spent 256 hours pursuing its claims against the Regional Board, which are not compensable.  Opp. at 13; Greenfield Decl., Ex. 13.  The entries for the 144 hours were spent on the demurrer hearings is included in this amount.  Greenfield Decl., ¶42f, Ex. 21.  These hours are not compensable as they were entirely separate from the claims against State Board and were dismissed following demurrer.  However, the time entries do not specify whether the time was spent on Regional Board claims, State Board claims, or both.  The court will allocate half of that time (128 hours) to Waterkeeper’s pursuit of its Regional Board claims.  These hours are eliminated at the average reduced rate of $542 per hour, or $69,376.

The total lodestar reduction in relation to the Regional Board claims is $76,016.74.  With this reduction, the lodestar of $710,966.60 is reduced to $634,949.86.

  1. Notice of Related Cases

Time spent on unnecessary legal skirmishes may be excised from an attorney’s fees award.  Cal. Common Cause v. Duffy, (1987) 200 Cal.App.3d 730, 754.

State Board notes that Pugsley, Kelly, Koch, Black, and Cooper spent 32.42 hours on an improper attempt to relate the instant matter to a case concerning separate Regional Board administrative decision and argues that these hours should be removed from any fee award.   Katz Decl. ¶7; Greenfield Decl. ¶¶ 42a-b, 47, Ex. 15.

Waterkeeper does not defend these hours.  The 32.42 hours are removed at the average reduced rate of $504.80, a total of $16,356.62.  The lodestar of $634,949.86 is reduced to $618,593.24.

iii. Secretarial/Clerical Time

State Board challenges 59.3 hours that Waterkeeper billed to perform secretarial/clerical tasks such as scanning, copying, assembling, and serving documents.  Opp. at 13-14.  As State Board correctly notes, these are tasks that should be delegated to non-billing staff and an attorney cannot bill a client for such tasks.  In re Taco Bell Wage and Hour Actions, (E.D. Cal. 2016) 222 F.Supp.3d 813, 832 (attorney cannot recover for performing clerical tasks).

State Board shows that Pugsley, Kelly, Cooper, and the paralegal billed a total of 59.3 hours for secretarial/clerical work.  Greenfield Decl., Ex. 8.  However, not all of the challenged entries are solely for secretarial/clerical work.  The entries include time spent working on the petitions and other documents, which is not secretarial/clerical work.  These entries amount to a total of 35.3 hours, which will not be removed.

The total reduction for secretarial/clerical work is 24 hours at the average reduced rate of $432.50, or $10,380.  With this reduction, the lodestar of $618,593.24 is reduced to $608,213.24.

  1. Administrative/Business Operation

State Board challenges 10.27 hours spent on firm business operations, such as preparing retainer agreements, drafting a case transfer memo when one attorney left the firm, and filing substitution of counsel and firm name change forms.  Opp. at 14; Greenfield Decl. ¶40c, Ex. 9.  Waterkeeper also seeks 4.55 hours soliciting funding and representation by other law firms.  Greenfield Decl., ¶40a, Ex. 7.  State Board asserts that such work is not appropriate to bill and should not be compensated.  Opp. at 14; Greenfield Decl., ¶39.

The court agrees.  Kelly, Pugsley, Cooper, and Koch billed a total of 14.82 hours for this work and the lodestar will be reduced by that amount at the average reduced rate of $513, or $7,602.66.  Greenfield Decl., Exs. 7, 9.    With this reduction, the lodestar of $608,213.24 is reduced to $600,610.58.

  1. Correcting Errors in Filing

Respondent challenges 3.1 hours that Black, Cooper, Pugsley, and the paralegal expended to correct errors made in various filings, asserting that such errors should be borne by the attorneys who made them, not the client or the opposing party.  Opp. at 14.  The court agrees.  The lodestar will be reduced by 3.1 hours at the average reduced rate of $461.50, or $1,430.65.  Greenfield Decl., Ex. 10.

With this reduction the total lodestar of $600,610.58 is reduced to $599,179.93.

  1. Other Inappropriate Entries

State Board challenges 24.2 hours billed for tasks that it asserts are not entitled to compensation.  Opp. at 14.  These include participating as an amicus in the unsuccessful appeals of the Wishtoyo I and II litigation[6] and counsel’s time traveling to and from San Francisco.  Opp. at 14.  State Board argues that the time is not compensable because Waterkeeper admitted that the claims in the instant matter are not similar to those litigated in the Wishtoyo cases.  Waterkeeper also has provided no evidence that would justify attorney travel time by showing that experienced environmental law attorneys were not available in Los Angeles to handle this litigation.  Opp. at 14; Katz Decl., ¶8, Ex. B.

The court agrees that the amicus time of 4.9 hours is for work that is not compensable, but not the travel time.  The lodestar will be reduced by 4.9 hours at the average reduced rate of $524.33, or $2,569.23.  With this reduction, the lodestar of $599,179.93 is reduced to $596,610.70.

vii. Inaccurate or Insufficient Descriptions

State Board contends that a further 10% reduction to the remaining compensable hours is warranted due to Waterkeeper’s time entries containing many entries that are inaccurate, have vague descriptions or no descriptions, fail to specify the number of hours worked, are duplicative, or have discrepancies between the time identified in the description and the time recorded.  Opp. at 14-15.  State Board notes several specific entries exhibiting such issues.  Greenfield Decl. ¶¶ 24-27, 32-38, 41-42.

Waterkeeper argues that a reduction is unwarranted because Greenfield only identifies a handful of inappropriate hours and fails to identify a pattern of excessive time.  Reply at 3-4.  The entries Greenfield identifies comprises only 2.4% of all the hours billed and do not justify a reduction when the rest of the entries are clear and detailed.  Reply at 4.

The court agrees with Waterkeeper and no reduction is warranted.  The total lodestar is $596,610.70.

  1. Multiplier

“[T]he unadorned lodestar figure reflects the general local hourly rate for a fee-bearing case; it does not include any compensation for contingent risk, extraordinary skill, or any other factors a trial court may consider under Serrano III.”  Ketchum v. Moses, (2001) 24 Cal.4th 1122, 1138.  The factors to consider for adjustment to the lodestar include the novelty and difficulty of the litigation, the extent to which the litigation precluded other employment by the attorneys, the contingent nature of the fee award, the fact that an award against the state would ultimately fall on the taxpayers, the fact that the attorneys received public and charitable funding for the purpose of bringing lawsuits of the character involved, and the fact that the moneys awarded would inure not to the benefit of the individual lawyers but the organizations employing them.  Ramos v. Coutnrywide Home Loans, Inc., (2000) 82 Cal.App.4th 615, 622-23.

Waterkeeper seeks a multiplier of 2 on the contingent portion of its work on the matter.  Waterkeeper contends that a multiplier is justified based on the contingent nature of the work, the novelty, difficulty, and complexity of the matter, and the public interest value of the results achieved.  Mot. at 16-19; Reply at 5-9.

  1. Contingent Nature of the Work

Waterkeeper asserts that it took significant risk in accepting the case as lead counsel Koch and Cooper took the matter on an entirely contingent fee basis.  Mot. at 17; Reply at 5-6; Cooper Decl., ¶19.  Waterkeeper notes that it obtained rotating grant funding of $40,000 to support the case (repayable upon recovery in this action), partially covering costs and staff attorney hours incurred, and allowing reduced rate payments to the CEQA specialist outside counsel.  Mot. at 17; Reply at 5-6.  This rotating grant represents less than 4% of the fees and costs incurred in this action and Waterkeeper’s ability to recover compensation for over 96% their hours of work is entirely contingent on winning the cases and obtaining a fee award.  Mot. at 17; Reply at 5-6.

State Board disputes that Waterkeeper is entitled to a multiplier on this basis.  While Koch and Cooper worked on a contingent basis, neither Waterkeeper’s in-house attorney (Pugsley) nor Black took the case on an entirely contingent basis.  Opp. at 15.  Black declares that her firm was compensated for all her time, albeit at a reduced hourly rate.  Opp. at 16.  Pugsley admits that he received his full salary regardless of the outcome of the litigation.  Opp. at 15.

State Board asserts that none of Waterkeeper’s attorneys have demonstrated that they were required to refuse other paying work to pursue the instant matter.  Opp. at 16.  The other cases that Pugsley asserts Waterkeeper declined to bring were also contingency fee cases, not fee-paying cases.  Turning down a contingent fee case to work on this contingent fee case is not a contingent risk.  Opp. at 16.  Black fails to explain why working on this case for only 85 hours over three years (averaging 3 hours per month) precluded her firm from taking other paying cases.  Opp. at 18.  Cooper and Koch collectively worked less than 300 hours over three years and neither of them states that they had to turn down other fee-paying work.  Opp. at 18.

The court agrees partly with State Board.  Waterkeeper’s attorneys – particularly Pugsley and Black — did not take the matter entirely as a contingent fee case and Waterkeeper admits it received modest funding to pursue the matter.  Still, there was a partial contingency for Cooper and Koch representing about 20% of the effort.  Waterkeeper also is correct that its receipt of a grant has no bearing on the award of a multiplier.  Reply at 10.  This factor works somewhat in favor of a multiplier.

  1. Novelty, Difficulty, and Complexity

Waterkeeper contends that a multiplier is appropriate because the factual and legal issues presented, and specifically the defenses presented by the State Board and the Cities, were complex, raising state law procedural questions, constitutional and statutory construction, the administrative relationship between the State and Regional Boards, and the interface between State and Federal law.  Mot. at 18; Reply at 7.  The court acknowledged the dearth of case law that was fully on-point.  Reply at 7.  Litigating the case required particular skill and expertise beyond the level that might be expected from counsel billing at the rates requested by Waterkeeper’s counsel.  Mot. at 18; Reply at 7.

The court agrees that the matter was novel, and State Board’s declarant, Greenfield, acknowledges that the case was difficult; he argues only that it was not complex.  Greenfield Decl., ¶29.  Greenfield is correct.  The case was novel, difficult, but not complex.  The entire procedure consisted of the four Petitions, a demurrer, basic written discovery by Waterkeeper (none from State Board), and a trial (which was a hearing).  Opp. at 16-17.

Moreover, Waterkeeper is already seeking high hourly rates based on the expertise of its attorneys.  Cooper Decl. ¶¶ 3, 22, 24, 31, 34.  A multiplier is properly denied where an environmental case is litigated by appropriately compensated specialists because they need not reinvent the wheel at every turn.  SOURCEsupra, 235 Cal.App.4th at 1188.  While the court has reduced those rates, that does not alter the fact that Waterkeeper’s attorneys are experts who participated in the Regional Board proceeding and did not need to research basic Water Code and other issues.  This factor works somewhat in favor of a multiplier because of its novelty and difficulty.

iii. Importance to the Public

Waterkeeper asserts that the importance of the matter to the public warrants a fee multiplier, as its actions resulted in the court confirming the State Board’s duty to consider the reasonable and beneficial use of treated wastewater in its comprehensive planning and allocation of the public’s waters.  The matter will have a substantial impact on California water policy.  Mot. at 18; Reply at 8-9.

As State Board notes, a case’s purported importance to the public is not a factor generally recognized in determination of whether a multiplier is warranted in a section 1021.5 case.  Opp. at 17.  Waterkeeper relies on Coalition of Los Angeles Planning v. Bd. of Supervisors, (“CLAP”) (1977) 76 Cal.App.3d 241, in arguing that public importance is a relevant factor, but its reliance is misplaced.  CLAP was not a section 1021.5 case and instead was decided under a substantial benefit theory.  Id. at 249.  Cases that rely on CLAP do so for the proposition that the case’s benefit to the public warrants section 1021.5 entitlement to fees, not a multiplier enhancement.  See, e.g., Center for Biological Diversity v. County of San Bernardino, (2010) 185 Cal.App.4th 866, 895.[7]

The purported importance of the matter to the public does not justify a fee multiplier.

  1. Lack of Success

A petitioner’s lack of success on legally distinct causes of action can weigh against a positive multiplier or warrant imposition of a negative multiplier.  Chavez v. City of Los Angeles, (2010) 47 Cal.4th 970, 989; Toxicssupra, 211 Cal.App.3d at 975.

State Board argues that Waterkeeper’s partial success weighs against granting it a multiplier.  Waterkeeper was unsuccessful against the Regional Board, which the court dismissed after finding that it did not have a mandatory duty to consider waste and unreasonable use when issuing water quality permits.  Opp. at 18.  Waterkeeper also did not achieve its objective of requiring regional boards to conduct a waste and unreasonable use analysis as part of their routine processing of NPDES permits and only achieved the more modest result of requiring the State Board to conduct a waste and unreasonable use analysis of only four dischargers based on discharge-specific evidence that petitioner presented.  Opp. at 18-19.

It is true that Waterkeeper did not achieve complete success.  However, the court has reduced the lodestar by the time Waterkeeper’s attorneys spent in opposing the Regional Board’s demurrer in this lawsuit.  It would be inappropriate to consider this lack of success a second time.  Waterkeeper’s degree of success is sufficient to prevent any reduction to the lodestar, but it does not support or undermine entitlement to a multiplier.

  1. Impact on Taxpayers

The fact that an award against the state would ultimately fall to the taxpayers can weigh against a positive multiplier.  Serrano v. Priest, (1977) 20 Cal.3d 25, 49; Northwest Energetic Services, LLC v. Cal. Franchise Tax Bd., (2008) 159 Cal.App.4th 841, 881.

State Board asserts that a multiplier should be denied because an award would ultimately fall to the taxpayers.  Opp. at 19.  State Board notes that the State has been in a declared state of financial emergency since June 25, 2020 due to the COVID-19 pandemic, and its expected adverse impacts to the state budget in the coming years.  Katz Decl., Ex. C.  Based on the fiscal emergency, almost all state employees, including its attorneys, agreed to a two-day per month reduction in pay for two years to generate about $3 billion in savings to the state budget.  Katz Decl. Ex. D.  The court should decline to award a multiplier to effectively double their hourly rates when the State is simultaneously imposing drastic fiscal measures to conserve state resources to address the pandemic and its fiscal effects.  Opp. at 19.

Waterkeeper correctly disputes that the State’s economic problems justifies denial of a multiplier, noting that courts have awarded multipliers in mandamus cases based on a public agency’s litigation tenacity. Edgerton v. State Personnel Bd., (2000) 83 Cal.App.4th 1350, 1356.  Since the purpose of a mandamus case is to compel government action, every successful case where fees are sought implicates taxpayers.  Reply at 9.  This factor does not work against a modest multiplier.

  1. Conclusion

Waterkeeper’s request for a multiplier of 2 is denied.  Waterkeeper is awarded a multiplier of 1.2.  Waterkeeper’s total fee with the multiplier is $715,932.84.

  1. Motion Fee

The litigation over a fee rarely, if ever, should have a multiplier because the factors considered for a multiplier are not the same for a fee motion.  Graham v. DaimlerChrysler Corp., (2005) 34 Cal.4th 553, 582-84.  Therefore, the court considers motion fees after the multiplier for the lodestar.

State Board challenges the 153 hours Waterkeeper spent preparing the instant motion, arguing the amount sought is excessive.  Opp. at 19-20.  Waterkeeper seeks $61,277.70 for the motion.  Cooper Decl. Exs. B and D; Clark Decl. Ex. A; Pugsley Decl. Ex. B.  After including time spent on the reply, Waterkeeper seeks a total of $86,374.20.  Reply at 10, Ex. A.

This is excessive.  The court has no doubt that the attorney time was incurred, but that does not make it reasonable.  Fee motions should not swallow significant parts of the overall fees.  Save Our Uniquely Rural Community Environment v. County of San Bernardino, (“SOURCE”) (2015) 235 Cal.App.4th 1179 (76 hours to prepare a fee motion was grossly inflated and patently unreasonable).

A reasonable fee for the motion is $30,000.  Added to the lodestar plus multiplier, the fee award is $745,932.84.

  1. Costs

Waterkeeper’s motion includes a request for costs in the amount of $8,255.51.  Mot. at 2, 19.  These alleged costs are not identified in the notice of motion, not itemized in the motion, and not supported by any declaration or other documentary evidence and they are denied.  Moreover, State Board correctly notes that requesting such costs would be untimely.  Opp. at 20.

A memorandum of costs “must” be filed within 15 days of service of notice of entry of judgment.  CRC 3.1700(b)(1).  The notice of entry of judgment for the matter was served on October 9, 2020.  Waterkeeper’s last day to file a memorandum of costs was on October 26, 2020.  Waterkeeper previously filed a memorandum of costs seeking $1,981.42 on October 15, 2020.  Katz Decl., Ex. E.

Waterkeeper notes (Reply at 4-5) that the court has discretion to award costs to a prevailing party concurrently with attorneys’ fees.  See, e.g., Hull v. Rossi, (1993) 13 Cal.App.4th 1763, 1766; California Lab. Federation v. Occupational Safety & Health Stds. Bd., (1992) 5 Cal.App.4th 985, 989.  While this is true, the fact remains that Waterkeeper failed properly identify or itemize its claimed costs other than a vague reference to travel costs incurred in litigating the action.  Reply at 5.

The claimed costs of $8,255.51 are denied.

  1. Conclusion

Waterkeeper’s motion for attorney’s fees is granted in the amount of $745,932.84.

[1] Waterkeeper’s reply brief is Bates-stamped in addition to the page numbering.  For the purposes of citation, the court refers to the reply brief’s page numbers.

[2] Although the plant is owned jointly by Los Angeles and Glendale, for convenience it is referred to as the Glendale plant.

[3] The Black declaration contradicts Waterkeeper’s motion, which states that Black requests an hourly rate of $630.  Mot. at 15.  The number of hours billed also differs: 80.1 hours in the declaration and 85.1 in the motion.  The court assumes the numbers in the declaration are the correct figures.

[4] State Board suggests that it could challenge Waterkeeper’s entitlement to fees depending on the outcome of the appeal and cross-appeal.  The court is not certain what this means.

[5] State Board incorrectly states that Thorme was retained by Real Party County of Los Angeles.  Opp. at 8.

[6] Waterkeeper concedes that it mistakenly claimed 4.9 hours for this work.  Reply at 4, n.1.

[7] Waterkeeper correctly notes (Reply at 9) that Flannery v. Cal. Highway Patrol, (1998) 61 Cal.App.4th 629, on which State Board relies, is inapposite because it was an award of fees pursuant to FEHA, rather than section 1021.5.