Review v. City of S.F.

COALITION FOR ADEQUATE REVIEW et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

ROB ANDERSON, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

A135660

A138856

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

November 19, 2014

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco City & County Super. Ct. No. CPF-05-505509)

At the instigation of private parties, the trial court enjoins the City and County of San Francisco (City) to take no further action on a proposed project pending preparation and certification of an environmental impact report (EIR) as required by the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) For this the City agrees to pay the private parties over $400,000 in attorney fees and costs. Thereafter, while the EIR is being prepared, the trial court, over the opposition of the private parties, partially grants three requests by the City to modify the injunction.Eventually the EIR is certified by the City and upheld by the trial court, which also dissolves the injunction. The private parties then move for a "supplemental" attorney fees award of almost $500,000 for opposing the City's three attempts to dissolve the injunction. The trial court awards $162,000.

The private parties appeal, arguing that the traditional degree of deference afforded to fee awards should be diluted because the supplemental fee decision was not made by the judge who decided any of the modification/dissolution motions. We conclude that this circumstance is not sufficient to depart from the well-established principle of reviewing courts deferring to trial courts' presumed superior knowledge of local legal conditions and practices. We further conclude that neither the total compensation, nor the hourly rate awarded to a newly-licensed attorney, manifests an abuse of the trial court's discretion. We thus affirm.

We also affirm another fee order awarding the same attorney only $16,000 of the claimed $78,860 for persuading the court to strike a cost bill of approximately $52,000 filed by the City. Again, we conclude, there was no abuse of discretion because the trial court continued to use the hourly rate used in the other attorney fee award.

BACKGROUND

In 1997, the City adopted a Bicycle Plan, described as "a comprehensive guide for efforts that will make San Francisco a more 'bicycle-friendly' city." As the trial court described it: "The Bicycle Plan originated in the City's Department of Parking and Traffic . . . as a complex, far-reaching plan to alter streets in San Francisco to accommodate San Francisco residents who ride bicycles. To achieve the Bicycle Plan's goal of increasing the number of City residents who ride bicycles, the Bicycle Plan mandates a number of actions including: eliminating traffic lanes and street parking throughout the City to create bicycle lanes, requiring that cars, buses and trucks 'share' lanes with bicyclists regardless of speed, allowing bicycles inside Muni and other public transit vehicles, eliminating parking in existing and newly constructed buildings, allowing bicycles in exclusive bus lanes, installing physical impediments to motorized traffic or 'traffic calming,' allowing bicycles on sidewalks, and closing streets to vehiclesto create exclusive 'bicycle boulevards.' The Bicycle Plan also contemplated . . . requiring that CEQA review of any proposed project in the City must resolve any 'traffic impacts or conflicts of parking access' by giving 'full or partial priority for bicycles,' that any proposed Area Plan in the City must be 'consistent' with the Bicycle Plan, and that automatic amendments of the City's General Plan will roll in '[a]s changes to the network occur.' "

The Bicycle Plan was a conspicuous success, so much so that it was substantially amended in 2001, and in 2002, a mere five years after being adopted, the City started planning to upgrade and extend it. However, the City took the position that, because the Bicycle Plan had already gone through CEQA review, the proposed upgrade was exempt from further environmental review because there was no possibility that it would have a significant effect on the environment. (Cal. Code Regs., tit. 14, § 15061(b)(3).)

This position was opposed by two unincorporated associations and an individual (Coalition for Adequate Review, Ninety-Nine Percent, and Rob Anderson,¹ hereafter collectively designated as plaintiffs) who, represented by attorney Mary Miles, in 2005 filed a petition for issuance of a writ of mandate to compel the city to comply with CEQA by preparing an EIR. In 2006, the trial court granted this relief, and also issued an injunction prohibiting the City from implementing the proposed upgrade by "making any . . . change to any street, traffic signal, building, sidewalk, or other land use or physical feature."

Plaintiffs thereupon applied for costs and an award of attorney fees. In March 2008, the City and plaintiffs (represented by Ms. Miles and the recently associated Richard M. Pearl) negotiated a "Settlement Agreement and General Release [of] Attorneys' Fees and Costs," whereby the City agreed to pay $406,278.55 as "all attorneys' fees and costs arising out of Ms. Miles' and Mr. Pearl's representation . . . up to and including January 31, 2008."

In May 2008, and again in February 2009, the court largely denied requests from the City to modify the injunction, but the City was given permission to modify one specified intersection and to "add and enhance marking associated with existing bicycle lanes" on specified streets.

In August 2009, and over plaintiffs' opposition, the City's Board of Supervisors certified a 2,052-page EIR. For the third time, the City asked the trial court to dissolve the injunction. The court rejected the City's argument that the injunction should, by reason of the certification alone, be dissolved; but the court did modify the injunction for a third time to permit work on certain specified features of the Bicycle Plan to proceed pending a final determination of the validity of the EIR.² And, because "the parties are unable or unwilling to reach an agreement on a schedule to test the City's return [to the writ of mandate] expeditiously," the court established briefing deadlines and scheduled a hearing for June 2010.

Meanwhile, in November 2009, a person named Greg Hayes filed a petition with this court for writs of mandate or prohibition.³ Copies of the petition were served on Ms. Miles and the City Attorney. Ms. Miles sent a letter to this court advising that Mr. Hayes was "not a party to the underlying superior court case and has no standing to bring this case or any action in it before the Court of Appeals [sic]." The petition was summarily denied on November 24, without the need for a response by the City. (Hayes v. Superior Court (Nov. 24, 2009, A126738), petn. den.)

In June 2010, the trial court heard extensive argument on the City's return to the writ of mandate, and on the City's renewed motion to dissolve the injunction, both of which were vigorously contested by plaintiffs.

Less than two months later, after reviewing a massive administrative record of more than 36,000 pages, and preparing an exhaustive 30-page order, the trial court overruled plaintiff's objections, discharged the writ, and dissolved the injunction. Anderson appealed. Up to now, all decisions had been made by the Honorable Peter Busch.

In August 2010, the City submitted a memorandum of costs for $51,959, almost all of which represented the expense of preparing the administrative record. Plaintiffs opposed the request, moving to have the cost bill stricken or the City's costs taxed.

In early October 2010, plaintiffs noticed a "Motion for Award of Supplemental Attorneys' Fees" of $497,160 "plus attorneys' fees incurred subsequently on this motion," a motion apparently prepared by Mr. Pearl.⁴ Based on "Ms. Miles' currenthourly rate of $400" as the reasonable lodestar, Mr. Pearl broke down the request as follows:

"First Motion to Modify:

203.3 hours

$81,320

"Second Motion to Modify:

276.8 hours

$110,720

"Motion to Dissolve:

301.1 hours

$120,440

"Hayes petition:

27.0 hours

$10,800

"Supplemental Fee Motion:

20.4 hours

$8,160

"Total:

828.6 hours

$331,440"

with "a 50% enhancement (a 1.5 multiplier) of [the] lodestar." Mr. Pearl's work was fixed at $650 per hour.

The City responded that "the court should reduce the requested number of hours by [Ms.] Miles by 50% to account for gross inefficiencies and overbilling." The City urged that Ms. Miles and Mr. Pearl should be compensated at hourly rates of $175 and $450, respectively, with no multiplier, for a total of $50,183.75. With their response to the City's opposition, plaintiffs' fee request rose to $539,487.50.

On February 29, 2012, the motion for fees came on before the Honorable Harold Kahn who, as is apparent from the lengthy argument that ensued and his pointed questions of counsel, had "spent an enormous amount of time preparing" for the hearing. Judge Kahn heard extensive argument on his tentative ruling, the heart of which and that occupied most of the hearing, was the following: "[Plaintiffs] are awarded . . . all hours spent by Ms. Miles for the first and second motions and this motion at $200 per hour. . . . [Plaintiffs] are not the prevailing parties on the third motion. . . . $200 per hour is a reasonable rate for someone with Ms. Miles' experience, the large amount of time she spent on these motions [i.e., the City's three motions to modify/dissolve the injunction] and the fact that she performed...