Filed 10/6/15 Habitat and Watershed Caretakers v. City of Santa Cruz CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
HABITAT AND WATERSHED H040762
CARETAKERS, (Santa Cruz County
Super. Ct. No. CV168697)
Plaintiff and Appellant,
v.
CITY OF SANTA CRUZ et al.,
Defendants and Appellants.
Appellant Habitat and Watershed Caretakers (Habitat) appeals from the trial
court’s order granting it $250,000 in attorney’s fees under Code of Civil Procedure
1
section 1021.5. Respondents City of Santa Cruz (the City) and Regents of the
University of California (the Regents) cross-appeal from the trial court’s order. The City
and the Regents challenge the trial court’s calculation of the lodestar, and Habitat
challenges the court’s application of a negative multiplier to its fees on the merits and a
“downward adjustment” to its fees for the fee litigation. We reject the challenges to the
lodestar, but we conclude that the trial court abused its discretion in connection with the
1
Subsequent statutory references are to the Code of Civil Procedure unless
otherwise specified.
negative multiplier and the downward adjustment. Consequently, we reverse the order
and remand for further proceedings.
I. Background
The City certified an environmental impact report (EIR) for a project to seek an
amendment of the City’s sphere of influence (SOI) to include an undeveloped portion of
the University of California, Santa Cruz (UCSC) campus known as “North Campus.”
The purpose of the amendment of the City’s SOI was to permit the City to provide
extraterritorial water and sewer services to proposed new development in North Campus.
The draft EIR found one significant and unavoidable direct impact: “ ‘The proposed
project would result in future provision of water service to the North Campus portion of
the UCSC campus that would support new planned development and growth to the year
2020. There are inadequate water supplies to serve the project under existing and future
multiple dry year (drought) conditions.’ ” (Habitat & Watershed Caretakers v. City of
Santa Cruz (2013) 213 Cal.App.4th 1277, 1285 (Habitat I).) In other words, the City
lacked the water supply necessary to provide the service that the project proposed.
Habitat filed a mandate petition contending that the City had failed to comply with
the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et
seq.). Habitat argued that the EIR did not adequately discuss and analyze the impacts of
the project on water supply, watershed resources, biological resources, and indirect
growth, misdescribed the project’s objectives, failed to consider and analyze a reasonable
range of alternatives, and failed to provide adequate mitigation measures. Habitat also
asserted that the City failed to make sufficient findings and failed to provide an adequate
statement of overriding considerations. (Habitat I, supra, 213 Cal.App.4th at pp. 1283-
1286.)
The trial court denied Habitat’s petition. (Habitat I, supra, 213 Cal.App.4th at
p. 1286.) On appeal, this court found that the City’s EIR was inadequate because the EIR
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failed to discuss any feasible alternative, such as a limited-water alternative, that could
avoid or lessen the significant environmental impact of the project on the City’s water
supply. This court rejected Habitat’s other contentions. On remand, the trial court was
directed to vacate its decision and to enter a new judgment granting Habitat’s petition and
directing the City to vacate its certification of the final EIR and approval of the project.
(Habitat I, at pp. 1308-1309.)
II. Habitat’s Fees Motion
On remand, Habitat filed a motion seeking its attorney’s fees under
section 1021.5. Habitat sought a total of $486,800 in fees for 837.3 hours of attorney
time for its litigation of the merits at hourly rates ranging from $300 per hour to $750 per
hour. For the fees litigation, Habitat sought compensation for 131.8 hours of attorney
time. Attorney Stephan C. Volker, Habitat’s lead attorney, had spent 389.5 hours on the
merits and 58.6 hours on the fees litigation, and Habitat sought a rate of $750 per hour for
Volker’s time. The remainder of the attorney time had been spent by his associates, who
had lower billing rates ranging from $300 to $500 per hour, with the bulk of their hours
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being charged at $350 per hour. Habitat submitted detailed billing records itemizing
each task that had been performed by its attorneys since they had been engaged by
Habitat in 2008.
Don Stevens, Habitat’s president, described Habitat’s search for counsel to handle
this case. Habitat interviewed attorneys both in Santa Cruz County and elsewhere.
Volker, who was based in Oakland, was particularly knowledgeable about the issues in
this case because he had represented a party in previous litigation about UCSC’s long
2
The time of a “law graduate” working on the fees litigation was billed at $150 per
hour.
3
range development plan, which had resulted in the settlement agreement that was at issue
in Habitat I. (Habitat I, supra, 213 Cal.App.4th at p. 1284.) None of the local attorneys
“had as much experience and appellate success” as Volker. Habitat, which could not
afford to proceed with the litigation without a partially contingent fee arrangement,
discovered that local environmental attorneys were not willing to represent it on a
contingent fee basis. Volker, on the other hand, was the only qualified environmental
attorney willing to take the case “on a largely contingent fee basis.” Habitat knew that
the City and the Regents were using “high-powered legal firms from outside the local
area” and wanted to be able to “counter balance these legal heavy-weights.” Habitat’s
“fee arrangement” with Volker was that Habitat would pay “a flat monthly rate of
$3,000.00 for trial work up to a cap of $36,000.00, and a monthly rate of $3,000 for
appellate work up to a cap of $25,000.00, plus reimbursement of expenses.” Habitat
ultimately paid Volker $61,000 in fees, reimbursed Volker for expenses, and paid Volker
an additional $5,000 for “services in the California Supreme Court.”
Volker submitted the declaration of Richard M. Pearl, an expert on attorney’s fees
issues, to demonstrate that Volker’s requested $750 hourly rate and the rates for his
associates were consistent with “the market rates for attorneys of comparable skill and
experience in the San Francisco Bay Area.” Pearl declared that the requested hourly rates
“are well in line with the non-contingent market rates charged for reasonably similar
services by San Francisco Bay Area attorneys of reasonably similar qualifications and
experience.” Pearl’s expert opinion was based in part on rates that courts had approved
as reasonable when sought by San Francisco Bay Area attorneys. These rates equaled or
exceeded the levels sought by Volker. Pearl also relied on detailed recent published
surveys of legal rates showing that the rates sought by Volker were “well within the
range of rates” charged by San Francisco attorneys. In addition, he founded his opinion
on information about billing rates charged by California law firms, which were consistent
with the rates requested by Volker for attorneys with similar levels of experience. Pearl
4
had reviewed Volker’s billing records and concluded that the time spent by Volker and
his associates had “been efficiently spent,” “reasonably calculated to avoid duplication of
effort and to maximize efficiency,” and “represent[ed] a reasonable number of hours for
litigating this matter.”
Volker also submitted his own declaration and relied on Pearl’s declaration to
support his request for a multiplier of 2.0 due to the “high contingent risk” and the low
amount paid by Habitat. Volker explained that this litigation faced “a very substantial
risk” that it would be “unsuccessful.” “Unless the compensation in those cases that are
won is greater than actual market rates, the financial losses in those cases that are not
won would outweigh the compensation recovered when litigation is successful” thereby
making it “financially infeasible” for an attorney to accept a public interest action such as
this one. Pearl explained that “[a]ttorneys who litigate on a wholly or partially contingent
basis expect to receive significantly higher effective hourly rates in cases where
compensation is contingent on success, particularly in hard-fought cases where, like the
case at bar, the result is uncertain.” Pearl opined that “a contingent case with at least a
50% chance of not prevailing should recover a fee that is at least twice the lodestar as
compensation for the attorney’s risk and loan of services.”
III. Opposition To Habitat’s Fees Motion
The City and the Regents claimed that the amount sought by Habitat should be
reduced because (1) the “out-of-market” rates were unreasonable, (2) the number of
hours was inflated and excessive, (3) a positive multiplier was unwarranted, and (4) if the
court awarded the requested lodestar, it should apply a negative multiplier of 0.5. The
City and the Regents asked the court to either reduce the lodestar by one-half or apply a
negative multiplier of 0.5.
They claimed that Habitat had not justified its decision to hire non-local counsel
“at an out-of-market rate typical of the San Francisco Bay area.” The City and the
5
Regents pointed out that their own attorneys’ billing rates did not exceed $425 per hour.
They complained that the billing rates relied on by Pearl did not involve CEQA litigation
“or similar work” and were not limited to San Francisco attorneys. The City and the
Regents submitted evidence that local Santa Cruz area rates for CEQA attorneys did not
exceed $425 per hour.
The City and the Regents argued that the number of hours spent by Habitat’s
attorneys was “unreasonable,” “inflated[,] and improper” because too much time had
been spent preparing the administrative record, Habitat’s opening appellate brief, and
Habitat’s answer to one of the petitions for rehearing filed by the City and the Regents.
The City and the Regents submitted their attorney’s declaration that the administrative
record tasks could have been completed by paralegals or legal secretaries and that the
briefs should not have taken that long to prepare.
The City and the Regents contended that a positive multiplier was unwarranted
because the contingent risk factor was already accounted for in the hourly rates that
Habitat was seeking as part of the lodestar, and the “fee arrangement” between Habitat
and Volker already mitigated the risk. They also argued that the fact that the fees would
be paid by public entities weighed against a multiplier. The City and the Regents made
an explicitly “alternative” argument that a negative multiplier should be applied if the
court awarded Habitat its requested lodestar. The City and the Regents based this
argument primarily on Habitat’s limited success, the burden of the award on taxpayers,
and mitigation of the contingent risk.
IV. The Trial Court’s Ruling
The motion was not heard by the original trial judge because that judge had been
disqualified. The trial court awarded Habitat “its requested lodestar” but made a
“downward adjustment by half to reflect [Habitat’s] partial success in litigation.” The
court found that the issues on which Habitat was unsuccessful “were directly related to
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the claim on which it was successful,” but the result achieved was “a 50 percent success.”
The court found that there was a lack of local counsel to represent Habitat, that the hours
spent by Habitat’s counsel were reasonable, and that the hourly rates requested by
Habitat’s counsel were reasonable in light of the fact that local counsel was unavailable
and that Habitat’s counsel took the case on a contingency fee basis. Because it utilized
the contingent risk factor in setting the lodestar, the court did not consider it again in
deciding the multiplier issue. The court found that a “negative multiplier” was
appropriate due to Habitat’s “50 percent rate of success.” The court’s use of the negative
multiplier yielded an attorney’s fees award of $226,725 for litigation of the merits. With
regard to fees for the fees litigation, the court reduced this amount by 60 percent to
$22,199.70 because the City and the Regents “did not create any extraordinary
3
difficulties in this case . . . .” Habitat timely filed a notice of appeal from the court’s
order, and the City and the Regents filed a notice of cross-appeal.
V. Discussion
The City and the Regents do not dispute Habitat’s entitlement to attorney’s fees
under section 1021.5. The parties’ challenges to the trial court’s order focus on the
amount of fees that Habitat was entitled to recover, with the City and the Regents
challenging the court’s calculation of the lodestar, and Habitat challenging the court’s
utilization of a negative multiplier or “downward adjustment.”
3
The court awarded $1,075.30 for Habitat’s attorney’s appearance at the hearing on
the fees motion but denied Habitat’s request for attorney’s fees for its attorney’s
preparation for and travel to the hearing on the fees motion. The court’s ruling reduced
this portion of Habitat’s attorney’s fees request for the fees litigation from $3,720 to
$1,075.30. None of the parties questions this ruling on appeal.
7
“Upon motion, a court may award attorneys’ fees to a successful party against one
or more opposing parties in any action which has resulted in the enforcement of an
important right affecting the public interest if: (a) a significant benefit, whether
pecuniary or nonpecuniary, has been conferred on the general public or a large class of
persons, (b) the necessity and financial burden of private enforcement, or of enforcement
by one public entity against another public entity, are such as to make the award
appropriate, and (c) such fees should not in the interest of justice be paid out of the
recovery, if any.” (§ 1021.5.)
“[A] court assessing attorney fees begins with a touchstone or lodestar figure,
based on the ‘careful compilation of the time spent and reasonable hourly compensation
of each attorney . . . involved in the presentation of the case.’ [Citation.] . . . In referring
to ‘reasonable’ compensation, we indicated that trial courts must carefully review
attorney documentation of hours expended; ‘padding’ in the form of inefficient or
duplicative efforts is not subject to compensation. [Citation.] [¶] . . . [T]he lodestar is
the basic fee for comparable legal services in the community; it may be adjusted by the
court based on factors including . . . the contingent nature of the fee award. [Citation.]
The purpose of such adjustment is to fix a fee at the fair market value for the particular
action. In effect, the court determines, retrospectively, whether the litigation involved a
contingent risk or required extraordinary legal skill justifying augmentation of the
unadorned lodestar in order to approximate the fair market rate for such services.”
(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1133 (Ketchum).)
“The amount of fees under . . . section 1021.5 is classically tested under the abuse
of discretion standard.” (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811,
830.) “The ‘ “experienced trial judge is the best judge of the value of professional
services rendered in his court, and while his judgment is of course subject to review, it
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4
will not be disturbed unless the appellate court is convinced that it is clearly wrong.” ’ ”
(Ketchum, supra, 24 Cal.4th at p. 1132.) “[W]hile a trial court has discretion to
determine the proper amount of an award, the resulting fee must still bear some
reasonable relationship to the lodestar figure and to the purpose of the private attorney
general doctrine.” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 324.)
A. Cross-appeal: Lodestar Calculation
The City and the Regents argue that the court abused its discretion in calculating
the lodestar.
The City and the Regents appear to possibly be arguing that the trial court’s
calculation of the lodestar was an abuse of discretion because Habitat achieved only
“partial success.” They cite no authority for the proposition that the trial court was
obligated to consider Habitat’s alleged “partial success” in the calculation of the lodestar
where it was utilizing that factor in determining the multiplier. A court is obviously not
required to double-count “partial success” against a party. (Environmental Protection
Information Center v. Department of Forestry & Fire Protection (2010) 190 Cal.App.4th
217, 239 (EPIC).) The fact that a successful party has achieved only a partial success
does have a role to play in determining the amount of fees to be awarded. However, that
role is limited to either the apportionment of hours between successful claims and
4
The judge who ruled on the fees motion was not the judge who presided over the
merits litigation. There is some authority indicating that this circumstance impacts our
standard of review. “[W]hen, as here, the fee order under review was rendered by a
judge other than the trial judge, we may exercise ‘ “somewhat more latitude in
determining whether there has been an abuse of discretion than would be true in the usual
case.” ’ [Citation.]” (Center For Biological Diversity v. County of San Bernardino
(2010) 188 Cal.App.4th 603, 616.) We find no need to decide in this case whether a
modified abuse of discretion standard of review is appropriate since we would reach the
same conclusions regardless.
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unsuccessful claims or the application of a negative multiplier. Here, the trial court found
that the successful and unsuccessful contentions in this case were related and declined to
apportion hours between those claims. The City and the Regents do not explicitly
challenge that finding in their cross-appeal. While “partial success” may play a role in
limiting the number of hours attributable to a party’s success or in supporting application
of a negative multiplier, a trial court is not obligated to utilize “partial success” in either
decision and certainly not in both. Here, the trial court found that all of the hours spent
were reasonably necessary, which precluded a finding that hours spent on unsuccessful
contentions were not compensable.
We proceed to the challenges made by the City and the Regents to the trial court’s
lodestar calculation. Two findings are necessary in order to calculate the lodestar. The
court must determine the number of hours that the attorneys have spent on the litigation,
not including hours expended on “inefficient or duplicative efforts,” which are excluded
because attorneys are entitled to only “ ‘reasonable’ compensation.” (Ketchum, supra, 24
Cal.4th at p. 1132.) And the court must ascertain the “ ‘reasonable hourly compensation
of each attorney . . . involved in the presentation of the case.’ ” (Ketchum, supra, 24
Cal.4th at pp. 1132-1132.)
1. Number of Hours
The City and the Regents claim that the trial court abused its discretion by basing
the lodestar on the number of hours claimed by Habitat’s attorneys because those hours
were “inflated and improper.”
“A trial court may not rubber stamp a request for attorney fees, but must determine
the number of hours reasonably expended. ‘ “California courts have consistently held
that a computation of time spent on a case and the reasonable value of that time is
fundamental to a determination of an appropriate attorneys’ fee award.” ’ [Citation.]
‘The evidence should allow the court to consider whether the case was overstaffed, how
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much time the attorneys spent on particular claims, and whether the hours were
reasonably expended.’ ” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.)
The City and the Regents contend that the trial court “rubber stamped” and failed
to evaluate the reasonableness of the number of hours claimed by Habitat’s attorneys.
The record does not support this contention. The court’s statements at the hearing on the
attorney’s fees motion plainly acknowledged that the lodestar was limited to “the
reasonable number of hours spent on the case.” Although the trial court expressed
reluctance to “second-guess these hours [claimed by Habitat’s attorneys],” the court
nevertheless accepted its duty to evaluate the reasonableness of the claimed hours in
response to the claims by the City and the Regents that Habitat’s attorneys had
“inappropriately spent” attorney time on various tasks. The court expressly found that
Habitat’s attorneys had “sufficiently detailed the need for the hours spent” in their
declarations. Since this finding reflects that the trial court appropriately scrutinized the
need for the hours devoted to the litigation by Habitat’s attorneys, we reject the claim that
the court abandoned its responsibility to evaluate the reasonableness of the claimed
hours.
The City and the Regents put misplaced reliance on Thayer v. Wells Fargo Bank
(2001) 92 Cal.App.4th 819 (Thayer). In Thayer, the bank did not challenge the court’s
calculation of the lodestar but instead argued that the court should have applied a
negative multiplier, rather than a multiplier that doubled the lodestar. The attorney in
Thayer had been one of many attorneys in several coordinated actions that were settled
by the bank almost immediately after they were filed. Much of the time spent by the
attorney in Thayer was needless duplication of time spent by the other attorneys in the
action. (Thayer, at pp. 833-834, 840-841.) The First District Court of Appeal held that
the duplication of time merited a negative multiplier or a reduction in the number of
hours and remanded the case to the trial court for a “fuller factual inquiry . . . .” (Thayer,
at p. 844.) None of the circumstances present in Thayer are present here. The City and
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the Regents vigorously fought Habitat’s action on the merits both in the trial court and on
appeal. There were no coordinated actions, and the City and the Regents do not claim
that Habitat’s attorneys duplicated the efforts of other attorneys.
The City and the Regents complain in some detail that Habitat’s attorneys devoted
too much time to the preparation of the administrative record, spent an unreasonable
amount of time on “vague, non-descript” tasks “such as ‘file review,’ ” and spent too
much time preparing Habitat’s appellate briefing. The record contains detailed billing
statements describing the tasks performed by Habitat’s attorneys and declarations that
support the need for the hours spent on these tasks. The trial court found that Habitat had
demonstrated the need for the hours spent by its attorneys on this litigation. As the City
and the Regents acknowledge, the trial court’s ruling is entitled to deference. We decline
their invitation to engage in what would amount to a de novo reassessment of the
reasonableness of the number of hours spent by Habitat’s attorneys on each task. That
assessment was for the trial court, and our review is solely for abuse of discretion. As the
record contains substantial support for the trial court’s finding that the number of hours
Habitat’s attorneys devoted to this litigation was reasonably necessary, we find no abuse
of discretion.
2. Hourly Rates
The City and the Regents argue that the trial court abused its discretion “by failing
to determine reasonable hourly rates” for Habitat’s attorneys. (Boldface omitted.) They
essentially assert that the trial court should not have credited the evidence submitted by
Habitat regarding the reasonableness of the requested rates and instead should have
credited evidence submitted by the City and the Regents that they believe showed that the
requested rates were “significantly inflated . . . .”
“[T]he ‘ “reasonable hourly rate [used to calculate the lodestar] is the product of a
multiplicity of factors . . . the level of skill necessary, time limitations, the amount to be
obtained in the litigation, the attorney’s reputation, and the undesirability of the case.” ’ ”
12
(Ketchum, supra, 24 Cal.4th at p. 1139.) “ ‘The purpose of statutory attorney fee
provisions is to provide financial incentives necessary for the private enforcement of
important civil rights. [Citation.] If a potential defendant is too intimidating to the local
bar or so replete with resources as to potentially overwhelm local counsel, or if the local
plaintiffs’ bar has not the resources to engage in complex litigation on a contingency-fee
basis, the public interest in the prosecution of meritorious . . . cases requires that the
financial incentives be adjusted to attract attorneys who are sufficient to the cause.’ ”
(Center For Biological Diversity v. County of San Bernardino, supra, 188 Cal.App.4th at
pp. 616-617.) When it is necessary for a plaintiff to engage non-local counsel, the trial
court must consider the attorney’s “home market rate” rather than simply the local market
rate for counsel. (Id. at p. 619.)
Habitat submitted evidence that it could not afford to pursue this case except on a
contingent or partially contingent fee basis. Habitat tried to find local counsel to handle
this litigation, but no other environmental attorney except Volker, who is based in
Oakland, was willing to take the case on a contingent or partially contingent basis.
Volker was highly experienced, particularly knowledgeable about the issues in this case,
and had a history of success in environmental cases. Habitat sought a rate of $750 per
hour for Volker’s time, and rates from $300 to $500 for his associates’ time, with the
bulk of the associates’ hours being charged at $350 per hour. While these rates exceeded
local market rates, Habitat submitted evidence that the requested rates were within the
range of market rates for attorneys of comparable experience in the San Francisco Bay
Area. The trial court expressly found that the hourly rates requested by Habitat’s counsel
were reasonable in light of the fact that local counsel was unavailable and that Habitat’s
counsel took the case on a contingency fee basis.
The City and the Regents do not directly challenge the trial court’s finding that
Habitat was entitled to out-of-market rates due to the unavailability of local counsel.
They claim that the court abused its discretion by finding Volker’s $750 per hour rate
13
reasonable because the evidence submitted by Habitat of the market rates in the San
Francisco Bay Area was not limited to “environmental attorneys” and Volker submitted
5
no evidence that he had ever charged or been awarded fees at a rate of $750 per hour.
A court must take many factors into account in determining the reasonable hourly
rate for lodestar purposes. (Ketchum, supra, 24 Cal.4th at p. 1139.) The reasonable
hourly rate must be sufficient “ ‘to provide financial incentives necessary for the private
enforcement of important civil rights.’ ” (Center For Biological Diversity v. County of
San Bernardino, supra, 188 Cal.App.4th at p. 617.) A trial court may make a
“contingency adjustment” either as part of the lodestar calculation “or by applying a
multiplier to the noncontingency lodestar calculation (but not both).” (Horsford v. Board
of Trustees of California State University (2005) 132 Cal.App.4th 359, 395 (Horsford).)
Here, the trial court chose to apply a “contingency adjustment” to the hourly rate, rather
than utilizing such an adjustment as part of its multiplier decision.
“ ‘ “[A] contingent fee contract, since it involves a gamble on the result, may
properly provide for a larger compensation than would otherwise be reasonable.” ’ The
purpose of a fee enhancement, or so-called multiplier, for contingent risk is to bring the
financial incentives for attorneys . . . into line with incentives they have to undertake
claims for which they are paid on a fee-for-services basis. [¶] The economic rationale
for fee enhancement in contingency cases has been explained as follows: ‘A contingent
fee must be higher than a fee for the same legal services paid as they are performed. The
contingent fee compensates the lawyer not only for the legal services he renders but for
the loan of those services. The implicit interest rate on such a loan is higher because the
5
The City and the Regents challenge all of the rates requested by Habitat and
accepted by the court, but the focus of their argument is Volker’s rate of $750 per hour.
As they devote little attention to the lower rates requested for his associates, we see no
need to address those lower rates separately.
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risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is
much higher than that of conventional loans.’ [Citation.] ‘A lawyer who both bears the
risk of not being paid and provides legal services is not receiving the fair market value of
his work if he is paid only for the second of these functions. If he is paid no more,
competent counsel will be reluctant to accept fee award cases.’ [Citations.] [¶] Such fee
enhancements are intended to compensate for the risk of loss generally in contingency
cases as a class.” (Ketchum, supra, 24 Cal.4th at pp. 1131-1133.)
Habitat produced evidence that the contingent risk factor was applicable here. By
taking on difficult cases such as this one that do not have high prospects for success and
are accepted on a contingent or partially contingent basis, Volker takes a substantial risk
that attorneys compensated on a fee-for-service basis do not. Unless a public interest
attorney like Volker has the prospect of obtaining a higher hourly rate than a similarly
experienced attorney being paid by a client would charge, he will inevitably be
financially unsuccessful. This is true, as Volker and Pearl explained, because many such
high risk cases will be unsuccessful and will result in a loss for the attorney. The
evidence presented by Habitat supported the trial court’s decision to make a “contingency
adjustment” in determining the reasonable hourly rate for Habitat’s attorneys.
The City and the Regents do not directly challenge the trial court’s decision to
apply a contingency adjustment in setting the reasonable hourly rate for Habitat’s
attorneys. Instead, they essentially ignore the fact that the court made such an
adjustment. The City and the Regents claim that the hourly rates sought by Habitat were
excessive because they exceeded the rates charged by land use attorneys like their own.
This claim ignores the fact that attorneys who defend clients against public interest
litigation do not do so on a contingency fee basis. Their clients can be relied upon to pay
the attorneys for their work and to pay those fees as they are incurred. Attorneys who
take on public interest litigation on a contingent fee basis, on the other hand, lack the
certainty of payment and, even when they succeed in obtaining recompense, they often
15
have to wait for years until the conclusion of the litigation to obtain any fees for their
efforts. The purpose of section 1021.5 is to provide an adequate financial incentive to
encourage such attorneys to take on such litigation. No valid comparison can be made
between public interest attorneys who work on a contingent fee basis and land use
defense attorneys who can expect timely recompense for all of their work regardless of
the outcome of the litigation.
The City and the Regents also argue that the trial court abused its discretion in
failing to limit the relevant comparators to land use, environmental, and CEQA attorneys.
The trial court had discretion to determine the relevant comparators. While Volker’s
$750 rate was high, it was not outside the range for attorneys with his level of experience
in the San Francisco Bay Area, and the same was true for the rates sought for his
associates. More fundamentally, the trial court’s approval of the rates sought by Habitat
incorporated a “contingency adjustment” to the market rates for attorneys with similar
levels of experience that could properly elevate the approved rates over those market
rates. It was not necessary for Habitat to demonstrate that Volker had ever received $750
per hour. The relevant consideration was the market rate for attorneys of his caliber and
experience and the appropriate “contingency adjustment” to make to that market rate.
The City and the Regents have failed to show that the trial court’s determination of the
market rate and application of a contingency adjustment failed to produce a reasonable
hourly rate for Volker’s services. Accordingly, they have not showed that the trial
court’s acceptance of Habitat’s requested rates was an abuse of discretion.
B. Habitat’s Appeal: Multiplier and Fees For Fees Litigation
Habitat claims that the trial court’s use of a negative multiplier was an abuse of
discretion because the court failed to account for the contingent risk factor and
16
improperly based the negative multiplier on Habitat’s partial success. Habitat also
6
complains that the court should not have reduced its fees for the fees litigation.
1. Standard of Review
Habitat claims that we owe no deference to the trial court because Habitat
prevailed on appeal, not in the trial court. Habitat’s reliance on EPIC to support this
proposition is misplaced because the issue in EPIC to which a different standard of
review was applied did not concern the amount of attorney’s fees but entitlement to
attorney’s fees after a party prevailed on appeal. (EPIC, supra, 190 Cal.App.4th at
pp. 229-230; see also Samantha C. v. State Dept. of Developmental Services (2012) 207
Cal.App.4th 71, 78.) While an appellate court may be in the best position to judge
whether a party has satisfied the criteria in section 1021.5 by prevailing on appeal, the
determination of the amount of attorney’s fees to which a party is entitled depends on
6
Habitat’s opening brief states that it raises “three issues,” which it identifies as (1)
the court’s application of a negative multiplier based on partial success, (2) the court’s
reduction of fees for the fees litigation, and (3) the court’s failure to take into account the
contingent risk factor in setting the multiplier. However, the opening brief also contains
a section in which Habitat appears to contend that the trial court abused its discretion by
failing to find that a positive multiplier was merited based on the complexity of the
issues, the difficulty of the case, and the “public service” interest served by the litigation.
A trial court is not obligated to apply a positive multiplier; the multiplier decision
is discretionary. (Ketchum, supra, 24 Cal.4th at pp. 1138-1139.) Because we remand
this matter for the court to reconsider its multiplier decision, we need not address
Habitat’s claim that the court abused its discretion in failing to apply a positive
multiplier. However, we note that the trial court explicitly rejected Habitat’s claim that
this case “involve[d] unusually novel issues or require[d] an extraordinary degree of
skill.” In light of the fact that Habitat’s attorneys were experienced CEQA litigators, the
trial court could reasonably conclude that the CEQA issues raised in this case were not so
difficult as to merit a positive multiplier. And because section 1021.5 authorizes fees
only for public interest litigation, the public service interest promoted by this litigation
did not so distinguish this case from other public interest litigation as to require
application of a positive multiplier.
17
numerous factual issues that are properly determined by a trial court, rather than an
appellate court. Indeed, in EPIC, the Court of Appeal remanded for the trial court to
determine issues related to the amount of fees, including the level of success. “We leave
resolution of these arguments to the trial court on remand, as they ‘essentially are factual
matters.’ [Citation.]” (EPIC, at p. 247.) Since the trial court made the factual
determinations related to the amount of fees, we give the trial court the deference that we
normally afford the factfinder.
2. Consideration of Contingent Risk Factor
Habitat contends that the trial court failed to consider in setting the multiplier the
contingent risk that its attorneys faced in taking this case on a contingent fee basis. We
find no error. This is not a case in which the trial court failed to fashion an attorney’s
fees award that took into account the contingent risk factor. The trial court applied a
“contingency adjustment” in determining the reasonable hourly rates for Habitat’s
attorneys. The contingent risk factor may be adjusted for either as part of the lodestar
calculation (here in determining the hourly rate) or in determining the multiplier, “(but
not both).” (Horsford, supra, 132 Cal.App.4th at p. 395.)
The contingent risk factor, like some of the other factors relevant to the multiplier,
may be accounted for in determining the lodestar and therefore should not be double-
counted in determining the multiplier. “Of course, the trial court is not required to
include a fee enhancement to the basic lodestar figure for contingent risk, exceptional
skill, or other factors, although it retains discretion to do so in the appropriate case;
moreover, the party seeking a fee enhancement bears the burden of proof. . . . We
emphasize that when determining the appropriate enhancement, a trial court should not
consider these factors to the extent they are already encompassed within the lodestar.
The factor of extraordinary skill, in particular, appears susceptible to improper double
counting; for the most part, the difficulty of a legal question and the quality of
representation are already encompassed in the lodestar. . . . Thus, a trial court should
18
award a multiplier for exceptional representation only when the quality of representation
far exceeds the quality of representation that would have been provided by an attorney of
comparable skill and experience billing at the hourly rate used in the lodestar calculation.
Otherwise, the fee award will result in unfair double counting and be unreasonable.”
(Ketchum, supra, 24 Cal.4th at pp. 1138-1139.)
The trial court’s decision to account for the contingent risk in setting reasonable
hourly rates instead of in setting the multiplier was not an abuse of discretion since the
contingent risk factor should not be “double count[ed].”
3. Application of Negative Multiplier Based on Partial Success
Habitat argues that the trial court abused its discretion in applying a negative
multiplier based on “partial success” because Habitat succeeded on all of its “claims,” its
“unsuccessful theories” were related to its successful claims, and it obtained all the relief
it sought.
“Although fees are not reduced when a plaintiff prevails on only one of several
factually related and closely intertwined claims [citation], ‘under state law as well as
federal law, a reduced fee award is appropriate when a claimant achieves only limited
success’ [citations].” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989-990.)
“California courts applying section 1021.5 in cases of limited success have adopted the
approach set forth in Hensley v. Eckerhart (1983) 461 U.S. 424, 434 [76 L.Ed.2d 40, 103
S.Ct. 1933] (Hensley). . . . [¶] In cases of limited success, Hensley establishes a two-part
inquiry. [Citation.] The first step asks whether ‘the plaintiff fail[ed] to prevail on claims
that were unrelated to the claims on which he succeeded[.]’ [Citations.] In the first step
of the Hensley inquiry, charges included in the initial lodestar calculation are ‘subject to
challenge . . . as being unrelated to the plaintiff’s successful claims.’ [Citation.] Thus,
this step requires a court to examine whether the prevailing party’s unsuccessful claims
are related to its successful ones. . . . [¶] If successful and unsuccessful claims are
related, the court proceeds to the second step of Hensley inquiry, which asks whether ‘the
19
plaintiff achieve[d] a level of success that makes the hours reasonably expended a
satisfactory basis for making a fee award.’ (Hensley, supra, 461 U.S. at p. 434.) In this
step, the court will ‘evaluate the “significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on the litigation.” ’ [Citation.] Full
compensation may be appropriate where the plaintiff has obtained ‘excellent results,’ but
may be excessive if ‘a plaintiff has achieved only partial or limited success.’ (Hensley, at
pp. 435, 436.) ‘The court may appropriately reduce the lodestar calculation “if the relief,
however significant, is limited in comparison to the scope of the litigation as a whole.” ’
[Citation.]” (EPIC, supra, 190 Cal.App.4th 217, 238-239.)
“Courts have discretion to compensate a partially successful plaintiff for time
spent on unsuccessful legal theories, provided such time was reasonably incurred.
[Citation.] But a reduction in the fee award may be appropriate where a plaintiff has
failed to succeed on some of its claims. [Citation.] The distinction between theories and
claims is not always clear. As a general rule, however, California courts have tended to
distinguish theories and claims by comparing the goals or objectives of the plaintiff’s
litigation with the relief ultimately obtained. [Citation.] The rule might aptly be
summarized as follows: ‘success counts and is to be judged . . . by the relief given or the
right established.’ ” (EPIC, supra, 190 Cal.App.4th at p. 240.) “[T]he fee award should
not be reduced simply because the plaintiff failed to prevail on every contention raised in
the lawsuit. [Citation.] Litigants in good faith may raise alternative legal grounds for a
desired outcome, and the court’s rejection of or failure to reach certain grounds is not a
sufficient reason for reducing a fee. The result is what matters.” (Hensley v. Eckerhart
(1983) 461 U.S. 424, 435 (Hensley).) “Where plaintiffs are entirely successful on all
their claims for relief, it is not important that some of the legal theories used to support
those claims were not found meritorious, so long as the plaintiffs did prevail.” (Sokolow
v. County of San Mateo (1989) 213 Cal.App.3d 231, 250 (Sokolow).)
20
The trial court found that Habitat had achieved only a partial success even though
its unsuccessful contentions were related to its successful contention. In its statement of
decision, the trial court relied on three cases: Karuk Tribe of Northern California v.
California Regional Water Quality Control Bd., North Coast Region (2010) 183
Cal.App.4th 330 (Karuk), Pellegrino v. Robert Half Internat., Inc. (2010) 182
Cal.App.4th 278 (Pellegrino), and EPIC. Its heavy reliance on Karuk to support its
7
decision to apply a negative multiplier based on “partial success” was misplaced. Karuk
did not involve the application of a negative multiplier based on “partial success.” The
plaintiffs in Karuk were awarded fees under section 1021.5 by the trial court. (Karuk, at
p. 341.) The Court of Appeal found that the plaintiffs were not entitled to any section
1021.5 fees because, having failed to obtain any of the relief they sought, the plaintiffs
could not qualify under section 1021.5 as a “successful party.” (Karuk, at pp. 362-363,
366.) Since Karuk was an entitlement case, rather than a case concerning the amount of
fees, it was not relevant to a “partial success” determination.
Pellegrino also was not relevant to a “partial success” determination. It was an
action for Labor Code violations and unfair competition, with the unfair competition
7
The court’s statement of decision rather than its oral comments at the hearing
constitute its reasoning for purposes of our review. “ ‘The statement of decision provides
the trial court’s reasoning on disputed issues and is our touchstone to determine whether
or not the trial court’s decision is supported by the facts and the law.’ [Citation.] . . . [¶]
There are instances in which a court’s oral comments may be valuable in illustrating the
trial judge’s theory, but they may never be used to impeach the order or judgment on
appeal.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268.) At the
hearing, the court observed that “the City and the Regents have a compelling argument
that a recirculation of the EIR may result in no change” to the project. “Obviously, there
will be significant work to be done on all sides with the new EIR that may change the
result, although that is not a guarantee or as strong as Habitat would claim it to be . . . .”
The court’s statement of decision included no statements regarding the potential impact
of a new EIR on the project.
21
cause of action based solely on the Labor Code violations. The plaintiffs prevailed and
sought attorney’s fees. Attorney’s fees were authorized only for the Labor Code
violations, not for the unfair competition cause of action. The trial court reduced the
lodestar by 15 percent to account for attorney’s fees attributable to the unfair competition
cause of action and applied a 1.75 multiplier to the reduced fees. The defendants
challenged the attorney’s fees award on appeal, claiming that the lodestar should have
been further reduced and no multiplier should have been applied. (Pellegrino, supra, 182
Cal.App.4th at pp. 282-283, 286-287.) The Court of Appeal found no abuse of discretion
in the court’s reduction of the lodestar to account for the unfair competition cause of
action for which attorney’s fees were unavailable or in its use of a 1.75 multiplier based
on the novelty and complexity of the issues. (Pellegrino, at pp. 288-292.) Unlike
Pellegrino, this case did not involve a cause of action for which attorney’s fees were
unavailable. Hence, the opinion in Pellegrino has nothing relevant to say on the issue of
partial success.
EPIC is relevant, but it does not provide any support for the trial court’s “partial
success” determination. In EPIC, multiple parties challenged several different approvals
related to a logging plan. They were initially fully successful in the trial court, and the
trial court awarded attorney’s fees. (EPIC, supra, 190 Cal.App.4th at p. 223.) After the
California Supreme Court reviewed the merits and concluded that the plaintiffs were
entitled to prevail on only a couple of their claims concerning only some of the approvals,
the case was remanded to the Court of Appeal to consider the defendants’ challenges to
the attorney’s fees awards. (EPIC, at pp. 224-227.) The Court of Appeal’s opinion was
intended to provide guidance to the trial court on remand so that the trial court could
resolve a number of remaining issues concerning the fees award, including whether the
plaintiffs were entitled to awards and the amounts of any awards. (EPIC, at pp. 236-
238.) The Court of Appeal described the two-step Hensley approach and made the
determination that the successful and unsuccessful claims were related. (EPIC, at
22
pp. 238-247.) However, the Court of Appeal left to the trial court the “ ‘factual’ ” issues
of whether the awards should be reduced because “the relief . . . obtained was limited in
comparison to the scope of the litigation as a whole.” (EPIC, at p. 247.)
The trial court’s determination of the “partial success” issue seems to have been a
product of its reliance on these cases. Although the trial court stated that it was utilizing
the two-step Hensley approach, it failed to properly apply that approach. The court made
no attempt to distinguish between “claims” and “theories,” which, as both Hensley and
EPIC make clear, is necessary in order to determine whether a party has achieved only a
partial success. “California courts have tended to distinguish theories and claims by
comparing the goals or objectives of the plaintiff’s litigation with the relief ultimately
obtained.” (EPIC, supra, 190 Cal.App.4th at p. 240, italics added.) “[T]he court’s
rejection of or failure to reach certain grounds [or contentions] is not a sufficient reason
for reducing a fee. The result is what matters.” (Hensley, supra, 461 U.S. at p. 435.)
“Where plaintiffs are entirely successful on all their claims for relief, it is not important
that some of the legal theories used to support those claims were not found meritorious,
so long as the plaintiffs did prevail.” (Sokolow, supra, 213 Cal.App.3d at p. 250, italics
added.)
The trial court equated what it called Habitat’s “claims” with the multiple “issues”
that Habitat had raised in its appeal to this court on the merits, most of which had been
“unsuccessful.” The trial court found that the unsuccessful “claims” were “directly
related” to Habitat’s successful “claim,” but it concluded that Habitat had nevertheless
failed “to justify full compensation.” Because most of Habitat’s appellate contentions
had been “unsuccessful,” the trial court concluded that, “viewing the outcome of the
litigation in light of the whole,” Habitat “only achieved a 50 percent success”
Habitat contends that the trial court’s conclusion that it had achieved only a partial
success was erroneous because Habitat “attained both of its objectives” in this litigation
by obtaining a judgment requiring the City to vacate both its certification of the EIR and
23
its approval of the project. Habitat acknowledges that some of its “alternative theories”
were “unsuccessful.” However, it maintains that the failure of some of its theories did
not authorize the court to reduce its fees because Habitat obtained all of the relief it
sought and the trial court found that the unsuccessful theories were related to Habitat’s
successful claim.
When a successful party obtains the result it seeks, the court may not reduce the
fee “simply because the plaintiff failed to prevail on every contention raised in the
lawsuit.” (Hensley, supra, 461 U.S. at p. 435.) “Section 1021.5 itself simply states that
awards are to be made to successful parties, with no mention of excluding compensation
for the successful parties’ unsuccessful legal theories. Moreover, as a practical matter, it
is impossible for an attorney to determine before starting work on a potentially
meritorious legal theory whether it will or will not be accepted by a court years later
following litigation. It must be remembered that an award of attorneys’ fees is not a gift.
It is just compensation for expenses actually incurred in vindicating a public right. To
reduce the attorney’s fees of a successful party because he did not prevail on all his
arguments, makes it the attorney, and not the defendant, who pays the cost of enforcing
that public right.” (Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 273
8
(Sundance).)
A successful party is entitled to recover fees for all time reasonably expended on
the litigation. That does not mean that time spent on unsuccessful theories is always
compensable. If a trial court finds that hours spent on unsuccessful legal theories were
not time reasonably expended, it may exclude those hours in calculating the lodestar.
(Ketchum, supra, 24 Cal.4th at p. 1132; Donahue v. Donahue, supra, 182 Cal.App.4th at
8
When Habitat cited Sundance at the hearing, the trial court’s response was that
“Sundance still leaves it within the Court’s discretion.”
24
p. 271.) However, the court may not reduce the fee award by applying a negative
multiplier “simply because the plaintiff failed to prevail on every contention raised in the
lawsuit.” (Hensley, supra, 461 U.S. at p. 435.) The trial court has discretion “to
determine whether time spent on an unsuccessful legal theory was reasonably
incurred. . . . [H]owever, . . . all time reasonably spent should be compensated.”
(Sundance, supra, 192 Cal.App.3d at p. 274.)
“The distinction between diverse legal theories bearing on a particular ‘right’ that
is established for purposes of section 1021.5 and unrelated ‘claims’ (which may have
nothing to do with any rights established for purposes of section 1021.5) is important.
The core idea in Sundance II is that an attorney doesn’t know beforehand which legal
ideas will be accepted by a court—something that would seem particularly true in public
interest litigation where a variety of constitutional theories may hover over the litigation
like spirits offering themselves for conjuring. So if the hours on the nonaccepted theories
were ‘reasonably spent,’ not to include them in the fee award would deny the ‘just
compensation for expenses actually incurred in vindicating a public right.’ ” (Hammond
v. Agran (2002) 99 Cal.App.4th 115, 130, disapproved on a different point in
Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1226, fn. 4.)
The trial court expressly found that all of the hours expended on this litigation by
Habitat’s attorneys were reasonably expended, so its decision to apply a negative
multiplier based on “partial success” could not be premised on the pursuit of unsuccessful
legal theories. While a negative multiplier may be applied where multiple claims were
pursued and only some were successful, the same is not true where a party obtains all of
the relief it sought and the only thing that was “unsuccessful” in the litigation was
alternative legal theories for obtaining that relief. Application of a negative multiplier
based on partial success is not authorized where the successful party obtained the relief it
sought and all of the hours were reasonably incurred.
25
Here, Habitat obtained all of the relief it sought. The City was ordered to vacate
both its decision certifying the EIR and its approval of the project. The trial court’s
conclusion that Habitat had achieved only a partial success is inconsistent with this
indisputable fact. It follows that the trial court’s application of a negative multiplier
based on partial success was an abuse of discretion. The appropriate remedy is a remand
for the court to reconsider the multiplier issue under the law as set forth in this opinion.
4. Downward Adjustment of Fees For Fees Litigation
Habitat sought $55,499.26 in attorney’s fees for litigating the fees motion. In its
statement of decision, the trial court stated that it had applied a “downward adjustment”
of 60 percent to these fees because the City and the Regents “did not create any
9
extraordinary difficulties in this case . . . .” “[F]ees for fee litigation may be enhanced
when a defendant’s opposition to the fee motion creates extraordinary difficulties.”
(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 582-583, italics added.) The
City and the Regents contend that it was proper for the trial court to use the absence of
extraordinary difficulties as the basis for a reduction in fees. They cite EnPalm, LLC v.
Teitler (2008) 162 Cal.App.4th 770 (EnPalm) and Thayer as support for this proposition.
Neither provides such support. In EnPalm, the Court of Appeal held that “the trial
court’s use of equitable considerations to reduce the lodestar amount of appellants’
attorney fees because most of those fees were unnecessary was proper . . . .” (En Palm,
at p. 778.) In Thayer, the Court of Appeal found that a negative multiplier was
9
At the hearing on the motion, the trial court noted that fees for the fees litigation
may be enhanced when the opposition “creates extraordinary difficulties.” The court also
stated: “I’m going to reduce [fees for the fees litigation] by 60 percent to reflect a local
reduced -- a local charge, a reduced legal analysis cost . . . .” The court’s statement of
decision provided only a single basis for the reduction: the City and the Regents had not
created extraordinary difficulties. We consider only the reasoning stated in the court’s
statement of decision. (See footnote 7.)
26
authorized where there was a significant duplication of time by multiple attorneys.
(Thayer, supra, 92 Cal.App.4th at p. 840) The trial court made no findings in this case
that the time spent by Habitat’s attorneys on the fees litigation was “unnecessary” or
duplicative. As we remand for further proceedings that will necessarily impact the
court’s award of fees for the fees litigation, we will direct the trial court to reconsider its
ruling on fees for the fees litigation after it has determined the appropriate amount of fees
for the merits litigation.
C. Scope of Remand
The City and the Regents challenged the trial court’s lodestar determination in
their appeal. We have concluded that the trial court did not abuse its discretion in finding
that the hours claimed were reasonably expended and that the hourly rates were justified
due to the need to retain non-local counsel and a contingency adjustment. Consequently,
the components of the lodestar calculation (the number of hours reasonably expended and
the reasonable rate), which have been fully litigated and challenged unsuccessfully on
appeal, may not be relitigated on remand.
Habitat challenged the trial court’s imposition of a negative multiplier as to fees
for the merits litigation and its setting of fees for the fees litigation. It also contended that
the trial court had erroneously failed to consider the contingent risk factor in setting the
multiplier. We have concluded that the trial court did not abuse its discretion in deciding
that the contingent risk factor did not merit a positive multiplier. However, we have also
concluded that the trial court erred in applying a negative multiplier based on “partial
success.” On remand, the trial court will have the opportunity to reconsider the entire
multiplier issue. The determination of the multiplier is a discretionary decision.
However, we do foreclose the trial court from again relying on “partial success” to
impose a negative multiplier as the record establishes that Habitat was successful on its
claims. In all other respects, we commit the multiplier decision to the trial court’s sound
27
discretion. Since the issue of fees for the fees litigation is necessarily reopened by our
remand, we commit that decision also to the trial court’s discretion.
VI. Disposition
The trial court’s attorney’s fees order is reversed. On remand, the trial court is
directed to vacate its order and to reconsider, under the law as set forth in this opinion, its
multiplier decision as to the fees for the merits litigation and its decision on fees for the
fees litigation. Habitat shall recover its appellate costs.
28
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Bamattre-Manoukian, Acting P. J.
_____________________________
Márquez, J.
29