Sierra Club v. County of San Diego CA4/1

Filed 8/17/22 Sierra Club v. County of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SIERRA CLUB, D079518

Plaintiff and Respondent,

v. (Super. Ct. No. 37-2018-
00043084-CU-TT-CTL)
COUNTY OF SAN DIEGO,

Defendant,

RCS-HARMONY PARTNERS, LLC

Real Party in Interest and
Appellant.

APPEAL from a postjudgment order of the Superior Court of San Diego
County, Katherine A. Bacal, Judge. Affirmed.

Richard A. Schulman and Richard A. Schulman for Real Party in
Interest and Appellant.
Chatten-Brown, Carstens & Minteer and Josh Chatten-Brown and
Kathryn Pettit for Respondent.
 Appellant and real party in interest RCS-Harmony Partners, LLC
(Harmony) appeals a postjudgment order awarding plaintiff and respondent

Sierra Club $468,228.73 in Code of Civil Procedure1 section 1021.5 private
attorney general fees for Sierra Club’s successful petition for a writ of
mandate directing the County of San Diego (County) to vacate and set aside
its certification of an environmental impact report and approval for two

development projects: Harmony Grove Village South and Valiano.2 The trial
court included a .5 multiplier for Sierra Club taking the case on a contingency
basis. Harmony contends the court abused its discretion in making this
award, claiming there is no evidence that Sierra Club enforced an important
right, conferred a significant benefit, or had any need to file its action as
section 1021.5 requires, and Sierra Club lost on two of its three causes of
action. More specifically, Harmony contends that because another party in a
related lawsuit obtained the same relief days before Sierra Club obtained its
judgment, Sierra Club’s case “accomplished literally nothing.” Harmony
further contends the court erred because it did not consider the litigation’s
harm in delaying needed housing when considering Sierra Club’s entitlement
to fees and whether to apply a diminishing multiplier. We affirm the
postjudgment order.

1 Undesignated statutory references are to the Code of Civil Procedure.

2 The award consists of $436,862.25 in fees on the merits and fees of
$26,114.50 in making the attorney fee motion. The award also includes
$5,251.98 in costs that Harmony did not contest, making the total award
$468,228.73.
2
 FACTUAL AND PROCEDURAL BACKGROUND
In August 2018, Sierra Club filed a lawsuit against County seeking,
among other relief, a petition for writ of mandate to rescind and set aside
County’s approval of three development projects—Harmony Grove Village
South (Harmony Grove), Valiano and Otay 250—until County complied with
the California Environmental Quality Act (CEQA; Pub. Resources Code,
§ 21000 et seq.). Sierra Club also sought a writ to command County to stop
its policy of automatically deleting documents that CEQA required to be
included in an administrative record. Sierra Club alleged the projects would
create new greenhouse gas emissions that were not adequately analyzed and
mitigated in the projects’ environmental impact reports (EIRs), in part
because the projects mitigated such emissions by obtaining offsite greenhouse
gas offsets from anywhere in the world. Sierra Club further alleged County
was improperly “batching” general plan amendments to avoid limits on the
number of such amendments it could adopt in any one year. The complaint
and petition contained three causes of action: for CEQA violations with
respect to greenhouse gas mitigation; for CEQA violations with respect to
County’s failure to preserve documents; and declaratory relief with respect to
County’s batching of general plan amendments. Sierra Club eventually filed
a second amended petition containing the same causes of action, now alleging
in support of its request for declaratory relief that County had approved an
additional general plan amendment for a “Newland Sierra” project, exceeding
Government Code limits for such actions.

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 The next day, the Elfin Forest Harmony Grove Town Council (the Town
Council) filed its own lawsuits separately challenging the Harmony Grove
and Valiano project approvals. Sierra Club filed a notice of related cases to
alert the superior court to the Town Council’s cases, as well as the fact Sierra
Club had filed prior actions against County raising related issues. The
superior court ruled the cases were related. The parties eventually
stipulated that the Town Council cases would be heard on the merits before
Sierra Club’s case.
Sierra Club eventually settled with the Otay 250 project developer
(Sunroad Otay Partners LP). The settlement agreement required onsite
greenhouse gas mitigation to be conducted “to the maximum extent feasible”
before offsite mitigation. It delineated minimum conditions for onsite
mitigation, including things such as electric vehicle parking and bicycle
lanes, and required the developer to provide any offsite mitigation within San
Diego County. The developer agreed to pay Sierra Club’s litigation costs and

fees.3
The court heard the Town Council cases in January 2020, and issued a
minute order the following month on February 20, 2020. In that case, the

3 In the factual background section of its opening brief, Harmony points
to this settlement to assert some of its features undermine Sierra Club’s
claim to be enforcing a public right. It further argues “[t]he primary purpose
of the settlement appears to have been Otay’s promise to pay a share of
[Sierra Club’s] attorneys’ fees . . . in an amount which appears to have
reached six figures.” We disregard arguments made without proper headings
or legal analysis. (Sweeney v. California Regional Water Quality Control Bd.
(2021) 61 Cal.App.5th 1093, 1143; Tilbury Constructors, Inc. v. State Comp.
Ins. Fund (2006) 137 Cal.App.4th 466, 482.) Harmony does not claim that
any of Sierra Club’s requested fees somehow overlapped with the fees paid by
the settling defendant.
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court eventually issued a peremptory writ of mandate directing County to set
aside all project approvals related to the Harmony Grove project and to set
aside its EIR’s certification.
The court took Sierra Club’s matter under submission on February 21,
2020, and issued its ruling in April 2020, granting Sierra Club’s petition and
directing County to set aside its approvals of both the Harmony Grove and
Valiano projects.
In its April 2020 ruling, the court acknowledged that in addressing
Sierra Club’s petition, it had also considered the Town Council petitions
relating to the Harmony Grove and Valiano projects. It agreed with Sierra
Club’s argument that the greenhouse gas mitigation offset mechanism
violated CEQA because it contradicted County’s 2018 General Plan and was
unenforceable because it impermissibly relied on the planning department
director’s discretion. The court incorporated its discussion of greenhouse gas
mitigation in Town Council’s Valiano case and its climate change discussion
in Town Council’s Harmony Grove case, and found the EIR relied on
unsupported greenhouse gas mitigation measures and the projects violated
CEQA because the mitigation measures were inconsistent with County’s
general plan and failed to comply with CEQA’s standards for ensuring the
mitigation is fully enforceable. As for Sierra Club’s request for declaratory
relief, the court exercised its discretion to deny the request, finding
declaratory relief would have no effect on the projects. Further, though the
court acknowledged County’s document retention policy deleted emails after
60 days, it found that policy did not warrant setting aside the project
approvals in part because Sierra Club had not shown the records for the
Harmony Grove and Valiano projects had surprisingly few emails, and thus
Sierra Club had not shown prejudice.

5
 In December 2020, Sierra Club moved for $474,784.48 in attorney fees
and costs. The request included amounts incurred for securing the fees.
Sierra Club argued the case met section 1021.5’s criteria; that it was
successful on a significant issue and achieved its primary objective to set
aside and vacate the project approvals for their CEQA violations. It argued
the action resulted in the enforcement of CEQA’s environmental reporting
requirements for mitigation measures and general plan inconsistencies, and
“compliance with the EIR process, particularly the mitigation measures
analysis, is a fundamental part of CEQA and constitutes an important right
affecting the public interest.” It argued the result conferred a significant
benefit to San Diego County residents and the general public, as it furthered
the enforcement of CEQA’s information disclosure and environmental
protection measures. Citing Preserve Wild Santee v. City of Santee (2012) 210
Cal.App.4th 260, 291, Sierra Club argued “[l]itigation challenging an agency’s
compliance with CEQA ‘results in the enforcement of important, and public
interest laws and confers a significant benefit on the public.’ ” It stated
private enforcement was necessary as County assertedly “has demonstrated
its refusal to comply with CEQA and its [greenhouse gas] reduction
obligations through its numerous failures to do so.” Sierra Club pointed out
it was a nonprofit organization dedicated to environmental protection,
brought the litigation to benefit the public, and received no financial benefit
from it, demonstrating its cost of litigation far transcended its personal
interest. It argued the amount of requested fees was reasonable, stating,
“While the Court declined to decide the merits of [Sierra Club’s] batching
argument, and disagreed with [its] claim regarding the County’s auto-
deletion policy, the Court’s ruling resulted in the setting aside of the project
approvals.” Sierra Club argued it was thus entitled to “full compensation for

6
all legal theories.” It also argued the lodestar should be enhanced by a .5

multiplier4 on grounds its counsel represented it on a fully contingent basis,
the fee award was uncertain due to the complexity and difficulty of legal
issues, counsel had to forego other compensated employment to litigate the
case, and Sierra Club achieved excellent results greatly benefitting the
public.
In June 2020, while Sierra Club’s fee motion was pending, this court
decided Golden Door Properties, LLC v. County of San Diego (2020) 50
Cal.App.5th 467 (Golden Door II), in which this court found a similar carbon-
offset mitigation measure for County’s climate action plan violated CEQA
because it contained unenforceable performance standards and improperly
deferred and delegated mitigation. (Id. at pp. 482–483.) The following
month, the court entered judgment in the Town Council case. About a week
later, the court entered judgment in the present action in Sierra Club’s favor.
Harmony opposed Sierra Club’s attorney fee motion in April 2021. It
argued the Sierra Club case accomplished “literally nothing,” as the earlier-
decided Town Council cases independently gained the public benefit and
rendered moot the court’s ruling on the CEQA issue on which Sierra Club
had prevailed. It argued that even if the case had accomplished some benefit,
the court would have to balance it against the harm the lawsuit caused to
California’s housing goals, which outweighed any of the lawsuit’s social

4 The lodestar is the number of hours reasonably expended multiplied by
the reasonable hourly rate. (Gunther v. Alaska Airlines, Inc. (2021) 72
Cal.App.5th 334, 357.) A “fee enhancement” or “multiplier” is a method by
which the court in its discretion will adjust the lodestar up or down.
(Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240,
247–248; see Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) “The trial
court is neither foreclosed from, nor required to, award a multiplier.”
(Mikhaeilpoor, at p. 247.)
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benefit. Harmony asserted the harm was evidenced in part by an executive
order addressing California’s housing crisis, of which it sought judicial notice
under Evidence Code section 452, subdivision (b). Harmony pointed out the
court entered judgment in Sierra Club’s case after the Town Council’s cases.
It also asserted that Sierra Club had lost on its second and third causes of
action regarding County’s document retention policy and general plan
amendments, stating they were separate from the CEQA claim and that
Sierra Club should be denied compensation for that work. It argued Sierra
Club’s fee demand reflected unreasonable and unnecessary billing for the
remedy it obtained, and the court should apply a diminishing multiplier.
The trial court granted Sierra Club’s attorney fee motion in part.
Pointing out judgment was entered on Sierra Club’s petition in its favor and
against Harmony, it ruled that under section 1021.5, Sierra Club was the
successful party. It found the action “affected the public interest of ensuring
full disclosure and mitigation of significant environmental impacts by
requiring the approval of the Harmony Grove South and Valiano projects be
set aside until in compliance with CEQA requirements, and which benefitted
the general public/large class of persons by addressing greenhouse gas
emissions issues.” The court ruled the financial burden of private
enforcement made the award appropriate in light of Sierra Club’s prior
administrative efforts and its nonprofit status. The court ruled that the
decision in the related Town Council cases did not moot the need to
adjudicate Sierra Club’s case, though it guided the rationale. It denied
Harmony’s request for judicial notice of the Governor’s executive order as not
satisfying the requirements of Evidence Code section 452, subdivision (b).
The court pointed out in any event that Harmony did not cite authority to

8
support the proposition that housing delay considerations should be weighed
when determining whether fees should be awarded in a CEQA case.
As for the amount of fees, the court stated: “[Sierra Club] claims
approximately 699 hours reasonably spent on this matter, minus one-third of
the costs up to the date Sunroad Otay Partners LP was dismissed from the
action (since Sunroad already paid one-third of those fees and costs incurred
with a 10 [percent] reduction).” It adjusted the attorney lodestar hourly rate
from $925 to $775, but found Harmony did not show any of the claimed hours
were excessive. The court stated Harmony did not identify any specific
portions of time as excessive, or provide specific citations showing Sierra
Club’s collaboration with other petitioners was unreasonably duplicative. It
ruled Harmony did not provide adequate explanation but only summary
conclusions in attempting to show Sierra Club’s work was “merely a cut and
paste.” Finally, finding Sierra Club took the risk of undertaking the case on
a full contingency, the court enhanced the lodestar by a .5 multiplier,
calculating fees at $443,418 ($295,612 + 0.5 multiplier = $443,418). The
court observed that Harmony did not dispute Sierra Club’s $26,114.50 in fees
for securing compensation and $5,251.98 in costs, and granted those
requests.
Harmony timely appealed the postjudgment order.
DISCUSSION
I. Legal Principles and Standard of Review
Section 1021.5 provides in part: “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

9
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.”
By its terms, “[s]ection 1021.5 permits a trial court to award attorney’s
fees to a successful party in any action that ‘(1) enforced an important public
right, (2) conferred a significant public benefit, and (3) is of a type that
private enforcement was necessary, and the financial burden justifies
subsidizing the successful party’s attorneys.’ [Citations.] ‘Although the
statute is phrased in permissive terms, a court’s discretion to deny attorney’s
fees to a party that meets the statutory requirements of section 1021.5 is
limited. [Citation.] Unless special circumstances would render an award of
section 1021.5 fees unjust, fees must be awarded under the statute where the
statutory criteria are met.’ ” (Burgess v. Coronado Unified School
District (2020) 59 Cal.App.5th 1, 7.)
We review a court’s award of attorney fees after trial for abuse of
discretion. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213; Save
Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, 708.)
De novo review is warranted where issues present a matter of statutory
construction or a question of law. (Conservatorship of Whitley, at pp. 1213–
1214.) Under the abuse of discretion standard, we uphold the court’s decision
if any reasonable judge would have made it, even if we would not have
reached the same conclusion. (See Harman v. City and County of San
Francisco (2007) 158 Cal.App.4th 407, 428.) We affirm the order if it is
correct on any theory apparent from the record. (Save Our Heritage
Organisation v. City of San Diego (2017) 11 Cal.App.5th 154, 162; RiverWatch
v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th

10
768, 776 [appellate court “will affirm an order correct in theory, even where
the court's reasoning is erroneous”].) We presume the court properly applied
the law and acted within its discretion unless Harmony affirmatively shows
otherwise. (Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 379;
see also Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488 [“ ‘Fees
approved by the trial court are presumed to be reasonable, and the objectors
must show error in the award’ ”].)
II. Harmony’s Arguments Do Not Establish the Court Abused its Discretion in
Awarding Section 1021.5 Fees
We turn to Harmony’s arguments as to whether Sierra Club met the
requirements of section 1021.5, namely whether Sierra Club’s lawsuit
enforced an important right or conferred a significant benefit, and whether
private enforcement was necessary. Notably, Harmony does not challenge
the court’s finding that Sierra Club was a “successful party” in the action for

purposes of entitlement to fees under section 1021.5.5 It cannot do so. By
prevailing on its CEQA cause of action relating to greenhouse gas mitigation,
that is, obtaining the court’s determination that the EIR was insufficient and
the projects violated CEQA, Sierra Club succeeded on a significant issue that
“ ‘ “achieve[d] some of the benefit [it] sought in bringing suit.” ’ ” (Sweetwater
Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36
Cal.App.5th 970, 982.) This entitled it to prevailing party status. (Ibid.)
Harmony’s appellate arguments focus on the sequence of the related
Town Council litigation and the fact Sierra Club went to trial and obtained
its judgment after Town Council had its trial and obtained a judgment in its

5 Harmony’s later argument about Sierra Club’s limited or partial
success on its claims is a challenge to the amount of fees awarded.
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case against County.6 It argues Sierra Club’s case “broke no new ground,”
pointing out the court in its ruling on Sierra Club’s petition incorporated
portions of its decision in the Town Council cases. Harmony asserts that as a
result, there is no evidence to support the trial court’s determinations that
Sierra Club’s case enforced an important right affecting the public interest, or
conferred a significant benefit, or was a type such that private enforcement
was necessary.
As we have stated, it is Harmony’s burden to demonstrate error.
(Laffitte v. Robert Half Internat. Inc., supra, 1 Cal.5th 480, 488; Central Delta
Water Agency v. Department of Water Resources (2021) 69 Cal.App.5th 170,
212.) Harmony’s arguments do not establish an abuse of discretion. To
determine whether such an abuse of discretion occurred, “we must review the
entire record, paying particular attention to the court’s stated reasons and
whether it applied the proper standards of law in reaching its decision.”
[Citation.] ‘ “We accept the trial court’s resolution of credibility and
conflicting substantial evidence, and its choice of possible reasonable
inferences that can be drawn from the evidence.” [Citation.]’ [Citation.]

6 On appeal, Harmony asks us to take judicial notice of the appellate oral
argument schedules for both the Town Council and Sierra Club actions (Elfin
Forest Harmony Grove Town Council et al., v. RCS-Harmony Partners (Oct.
14, 2021, D077611) [nonpub. opn.].) and Sierra Club v. County of San Diego et
al. (Dec. 21, 2021, D077548, D077972) [nonpub. opn.].) as well as our
unpublished opinion in the Town Council matter, none of which were before
the trial court when it made its ruling. As for relevance, Harmony points out
it asserts on appeal that the “substantive actions in this case . . . followed the
analogous actions in the related . . . case,” but that the “sequence of the
appeals” is not in the appellate record. We disagree these items and/or the
sequence reflected in them are relevant to our analysis, and on that ground
deny the request. (Cf. Coyne v. City and County of San Francisco (2017) 9
Cal.App.5th 1215, 1223, fn. 3.)
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[¶] [W]e will find an abuse of discretion if the trial court based its decision on
improper criteria or an incorrect legal standard, or if factual findings critical
to the decision are not supported by substantial evidence. [Citations.] To be ‘
“substantial,” ’ evidence must be reasonable, credible, and of solid value.
[Citation.] A finding is not supported by substantial evidence if there is no
reasonable basis for it in the record.” (Department of Water Resources
Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573.)
Harmony’s legal and factual arguments are cursory and unavailing. In
arguing Sierra Club’s action did not enforce an important right, Harmony
cites Ketchum v. Moses (2001) 24 Cal.4th 1122 for the proposition that
“[m]any published opinions have held that duplication merits no
compensation.” It makes this bare assertion: “[Harmony Grove] will be the
same with or without this case, except of course for the fees of Plaintiff’s
attorneys. [Greenhouse gas] emissions will be the same with or without this
case.” In arguing Sierra Club did not confer a significant benefit, Harmony
again states the result had already been gained, and asserts “no evidence,
much less substantial evidence, supports this element.” It cites a snippet
from Burgess v. Coronado Unified School District, supra, 59 Cal.App.5th 1, in
which this court cautioned against granting section 1021.5 attorney fees for
parties who intervene in or initiate litigation “under the guise of benefiting
the public interest while actually performing duplicative, unnecessary, and

13
valueless services . . . .” (Id. at p. 11.)7 As to necessity, Harmony reiterates
“this case was unnecessary because the result had already been gained in
other cases.” It cites City of Santa Monica v. Stewart (2005) 126 Cal.App.4th
43 (which in turn cites other cases) for the proposition that if a plaintiff and
intervenor seek section 1021.5 attorney fees for time spent that is
superfluous or duplicative of each other’s efforts, a court may reduce or deny
altogether a particular fee request. (Id. at p. 89.) It cites inapposite cases
involving companion lawsuits by public entities rendering private

enforcement duplicative or cumulative.8 Harmony argues the trial court in

7 In Burgess, this court affirmed a trial court’s decision to deny attorney
fees to an intervenor who failed to secure a significant public benefit in that
its action resulted in the release of de minimis records, including publicly
available court filings. (Burgess v. Coronado Unified School District, supra,
59 Cal.App.5th at p. 11.) We held the lower court reasonably found
intervention led to the release of only insignificant, insubstantial records that
did not warrant a fee award. (Ibid.) Here, the trial court found Sierra Club’s
action to enforce CEQA requirements as to mitigation of significant
environmental impacts did confer a significant public benefit, and we
presume the correctness of its finding absent Harmony’s showing it lacks
substantial evidence in the record. Harmony’s reliance on the mere timing of
the Town Council and Sierra Club actions do not make out such a showing.

8 In San Diego Municipal Employees Association v. City of San Diego
(2016) 244 Cal.App.4th 906, the lower court denied a request for fees, finding
a union’s involvement in an action was not necessary to the final outcome or
that its enforcement was necessary. (Id. at p. 912.) This court affirmed,
pointing out the private union had “litigated [the] case on the same side as a
nonvolunteer public entity” and thus was required to show its participation
was material in that it proffered significant factual and legal theories, and
produced substantial, material evidence that was not merely duplicative of or
cumulative to what was advanced by the governmental agency. (Id. at
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this case focused only on whether Harmony was required to defend the case,
and asserts: “Defending this case was necessary because it had been filed.
That does not mean that its filing was necessary, nor does it mean that its
filing must be rewarded. Again, no evidence, much less substantial evidence,
supports the fee award.” Such broad and bare assertions do not meet
Harmony’s appellate burden to establish error.
Harmony fails to acknowledge that Sierra Club initiated its litigation
before Town Council, and that the cases effectively proceeded simultaneously,
with the court taking Sierra Club’s case under submission one day after it
issued its minute order in the Town Council cases. The trial court specifically
addressed Harmony’s contention that Sierra Club’s case had not achieved any
results and rejected it, stating “the fact that determinations were made in

p. 913.) McGuigan v. City of San Diego (2010) 183 Cal.App.4th 610 was
decided in a “unique procedural context” (id. at p. 618) where one settling
respondent sought appellate attorney fees from another settling respondent
(a city). We held attorney fees were not available as they were not opposing
parties, but were allied in interest. (Ibid.; see Animal Protection & Rescue
League v. City of San Diego (2015) 237 Cal.App.4th 99, 109 [discussing
McGuigan].) McGuigan’s discussion of “duplication of effort” was made in the
context of determining the necessity of private enforcement, and we
determined the appellant did not need to pursue private enforcement of a
settlement, as it was essentially acting as a volunteer since the public entity
sought the same outcome. (McGuigan, at p. 636.) In Ciani v. San Diego
Trust & Savings Bank (1994) 25 Cal.App.4th 563, we likewise affirmed the
denial of section 1021.5 fees where a private party had filed an “essentially
identical” lawsuit to the Coastal Commission to stop demolition of a
structure. (Id. at p. 568.) The lower court in Ciani did not abuse its
discretion in finding the dispositive legal issues in the lawsuit and benefits
“were fully advanced by the state, rendering [the private party’s]
participation in the lawsuit unnecessary.” (Id. at p. 573.) Harmony
maintains the point of these cases is that duplicative effort is not rewarded,
but as we explain, it fails to appreciate that the “necessity” inquiry focuses on
whether there is redundant public enforcement, a circumstance not involved
in this case.
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other related cases did not moot the need to adjudicate this matter, though
they did guide the Court’s rationale.” The trial court thus implicitly, if not
expressly, found Sierra Club’s efforts did not merely duplicate Town
Council’s, Sierra Club’s case was not identical to Town Council’s, and that
Sierra Club’s private enforcement was necessary. The court expressly found
the “financial burden of private enforcement makes the award appropriate, in
light of [Sierra Club’s] prior administrative efforts and its non-profit status.”
Though Harmony has the burden to establish that these findings are
erroneous, it has not pointed to evidence or indications in the record
suggesting that Sierra Club’s action was superfluous, unnecessary or
valueless. It has not shown, for example, that Sierra Club’s action was
merely tag-along, that its and the Town Council’s actions were “nearly
identical,” or that duplication of effort was manifest or a “hallmark” of the
proceeding. (Compare Thayer v. Wells Fargo Bank, N.A. (2001) 92
Cal.App.4th 819, 840 [duplication of effort was a hallmark of coordinated
cases where plaintiff’s counsel’s time records showed that approximately 20
percent of the hours claimed was spent in correspondence between and
among the nine law firms representing the various plaintiffs, more than twice
the hours spent by plaintiffs’ counsel in communicating with the defendant
and the trial court, warranting remand for the trial court to consider
applying a negative multiplier]; In re Vitamin Cases (2003) 110 Cal.App.4th
1041, 1045–1046, 1054–1055 [reversing $16 million award including a 2.0
multiplier, citing Thayer’s concern whether it is appropriate to award
attorney fees in “ ‘ “tag-along actions—representative lawsuits brought with
different named plaintiffs which substantially track actions previously
brought” ’ ” in a case involving 34 putative private class actions and 52 law
firms]; but see State Farm General Insurance Company v. Lara (2021) 71

16
Cal.App.5th 197, 226 [lower court did not abuse its discretion in rejecting
claim of unnecessary duplication by finding briefs were not “ ‘carbon
copies’ ”].) Harmony does not demonstrate how the record shows
inefficiencies in Sierra Club’s counsel’s actual handling of the action. Its
arguments would have us presume based on the mere fact that the court
decided the Town Council actions first that Sierra Club’s case was cumulative
or redundant. “‘[G]eneral arguments that fees claimed are excessive,
duplicative, or unrelated do not suffice.’ ” (Etcheson v. FCA US LLC (2018)
30 Cal.App.5th 831, 848.)
Nor has Harmony addressed the relevant considerations for the
element of necessity within the meaning of section 1021.5. That element
focuses not on mere duplication of effort by prevailing parties, but the need
for private enforcement. “[T]he necessity . . . of private enforcement” is
comprised of two distinct elements: the first “necessity” prong “simply
[requires a showing] that public enforcement is not available, or not
sufficiently available.” (Conservatorship of Whitley, supra, 50 Cal.4th at
p. 1217; see also City of Santa Monica v. Stewart, supra, 126 Cal.App.4th at
p. 85 [“the court looks only to whether there is a need for a private attorney
general for enforcement purposes, because no public attorney general is
available”; where a private suit is brought against a governmental agency
that refuses to comply with admitted statutory responsibilities, the necessity
of private enforcement is “ ‘often obvious’ ”].)
Further, as Sierra Club points out, Harmony’s own authority, City of
Santa Monica v. Stewart, supra, 126 Cal.App.4th 43, establishes that
multiple parties acting as private attorneys general, including intervenors,
have the right to seek attorney fees under section 1021.5. There, the
appellate court rejected an argument that the necessity element of the

17
statute required the court to “weigh[] the relative contributions of each
private guardian” in determining their respective entitlement to an attorney
fee award. (Id. at p. 85.) The court explained the policies underlying the
intervention and private attorney general statutes did not support any such
conclusion. (Id. at p. 87.) In part, it observed “the policy underlying section
1021.5 encourages a party without substantial resources to prosecute actions
to vindicate important public constitutional and statutory rights, knowing
that if it prevails it will receive financial compensation for its substantial
efforts in that endeavor.” ( City of Santa Monica v. Stewart, at p. 85) Any
ruling “condition[ing] an intervenor’s entitlement to private attorney general
fees on an after-the-fact assessment of whether the intervenor’s participation
was ‘necessary’ to the successful result achieved” was inconsistent with those
policies. (Id. at p. 88.) Stewart’s holding was reached in the context of an
intervenor; its principles are more compelling in a case involving an original
party with full “procedural rights and remedies” to seek attorney fees. (Id. at
p. 87.) As another court puts it: “[T]he rule derived from Stewart is this: If
two private parties prosecute important public interest litigation together
and obtain the same success, neither party’s services can be deemed
unnecessary simply because the other party would have succeeded without
them.” (State Water Resources Control Bd. Cases (2008) 161 Cal.App.4th 304,
315; see also id. at p. 317 [“If . . . there is no public attorney general available
to act, then the ‘bounty’ that section 1021.5 provides must be available to any
party, public or private, who takes on the responsibility of pursuing
important public interest litigation beyond its own interests.”].)
In sum, Harmony has not convinced us that the trial court abused its
discretion in ruling Sierra Club met the requirements of section 1021.5.

18
 II. Use of Multiplier
In applying a 0.5 multiplier to the lodestar, the trial court
acknowledged and reiterated Sierra Club’s counsel’s assertions that the
matter involved substantial risk and that it precluded work on other matters.
In part it cited Center for Biological Diversity v. County of San Bernardino
(2010) 185 Cal.App.4th 866, 899 for the proposition that “ ‘[t]he purpose of a
fee enhancement is primarily to compensate the attorney for the prevailing
party at a rate reflecting the risk of nonpayment in contingency cases as a
class.’ ” Stating “the contingency factor is not reflected in the lodestar,” the
court applied the multiplier, reasoning Sierra Club “took the risk of
undertaking the case on full contingency . . . .”
“The Supreme Court has ‘set forth a number of factors the trial court
may consider in adjusting the lodestar figure. These include: “(1) the novelty
and difficulty of the questions involved, and the skill displayed in presenting
them; (2) the extent to which the nature of the litigation precluded other
employment by the attorneys; [and] (3) the contingent nature of the fee
award, both from the point of view of eventual victory on the merits and the
point of view of establishing eligibility for an award.” ’ ” (Mikhaeilpoor v.
BMW of North America, LLC, supra, 48 Cal.App.5th at p. 248; see Graham v.
DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579.) “This is an illustrative
rather than exclusive list of potentially relevant factors.” (Northwest
Energetic Services, LLC v. California Franchise Tax Bd. (2008) 159
Cal.App.4th 841, 880.) “ ‘[A]ny one of those factors may be responsible for
enhancing or reducing the lodestar.’ ” (Center for Biological Diversity v.
County of San Bernardino, supra, 185 Cal.App.4th at p. 901, italics added;
see also Sonoma Land Trust v. Thompson (2021) 63 Cal.App.5th 978, 986.)

19
 “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. The “ ‘experienced trial
judge is the best judge of the value of professional services rendered in his
court, and while his judgment is of course subject to review, it will not be
disturbed unless the appellate court is convinced that it is clearly wrong.’ ” ’ ”
(Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 579.)
Thus, “[w]e will not disturb the trial court's exercise of discretion in
deciding whether to increase or reduce the lodestar figure unless the fee
award is clearly wrong [citation], and we may ‘presume the trial court
considered all the appropriate factors in choosing the multiplier and applying
it to the whole lodestar.’ ” (Espejo v. The Copley Press, Inc., supra, 13
Cal.App.5th at pp. 384-385; see also Nichols v. City of Taft (2007) 155
Cal.App.4th 1233, 1240 [emphasizing that “application of a lodestar
multiplier is discretionary; that is, it is based on the exercise of the court's
discretion after consideration of the relevant factors in a particular case”].)
Harmony contends the trial court abused its discretion by applying the
multiplier. It accepts the court’s calculation of the lodestar for purposes of
this appeal, but maintains the award is erroneous as it gave Sierra Club a
“bonus of 50 [percent] of its fee demand.” According to Harmony, the factors
relevant to determine an appropriate multiplier overwhelmingly militate in
favor of diminution, stating Sierra Club did not identify any specific or novel
issue and all of its authorities already existed except Golden Door II, which
assertedly arose without any contribution from this case. Harmony further
asserts Sierra Club is represented by a firm with multiple lawyers who file

20
many of these cases, and the court denied the sole practitioner in the Town
Council case a multiplier. Harmony repeats that the case “accomplished
nothing new of benefit” and created harm to California’s housing needs,

warranting a zero multiplier.9
None of these arguments demonstrate the trial court abused its broad
discretion or was “ ‘ “ ‘clearly wrong’ ” ’ ” (Pellegrino v. Robert Half Internat.,
Inc., supra, 182 Cal.App.4th at p. 292) in applying the 0.5 multiplier based on
the contingency factor. Harmony mentions nothing about the contingent risk
taken on by Sierra Club’s counsel, which by itself can warrant an
enhancement. (Center for Biological Diversity v. County of San Bernardino,
supra, 185 Cal.App.4th at p. 901 [plaintiff relied exclusively on contingent
nature of litigation and court relied primarily on contingency issue in
applying 1.5 multiplier to lodestar]; Pulliam v. HNL Automotive Inc. (2021)
60 Cal.App.5th 396, 408-409 [plaintiff solely requested a multiplier for her
counsel’s contingent risk; appellate court upheld application of 0.2 multiplier
to account for inherent risks associated with taking the case on contingency
and fronting all costs of litigation].) “ ‘ “[A] contingent fee contract, since it
involves a gamble on the result, may properly provide for a larger
compensation than would otherwise be reasonable.” ’ ” (Ketchum v. Moses,
supra, 24 Cal.4th at p. 1132.) We have recognized “it is not unusual for
counsel to ask for a multiplier in contingent fee cases” and it is “ ‘[o]ne of the

9 Harmony does not claim the court intertwined considerations relevant
to the determination of the lodestar amount with factors relevant to whether
the lodestar should be adjusted upward. (See Northwest Energetic Services,
LLC v. California Franchise Tax Bd., supra, 159 Cal.App.4th at p. 879.) Nor
did the court apply any enhancement to the request for fees spent on the time
pursuing the attorney fee award. (Pellegrino v. Robert Half Internat.,
Inc. (2010) 182 Cal.App.4th 278, 295 [an enhancement for fee-related
litigation is “ ‘rarely justified’ ”].)
21
most common fee enhancers . . . .’ ” (Etcheson v. FCA US LLC, supra, 30
Cal.App.5th at p. 851; see also Graham v. DaimlerChrysler Corp., supra, 34

Cal.4th at p. 579.)10 As we have explained above, Harmony has not
demonstrated Sierra Club’s counsel’s hours reflected substantial duplication
of effort, as the court found in Thayer v. Wells Fargo Bank, N.A., supra, 92
Cal.App.4th at pages 840–841. We see no relevance that the court denied use
of a multiplier in the Town Council case, as Harmony has not established
that matter involved a nonprofit public interest group with counsel working
on a fully contingent basis as in the present case. And Harmony’s assertion
that Sierra Club’s law firm brings many of these types of cases does not

10 In Graham v. DaimlerChrysler Corp., the California Supreme Court
reiterated the propriety and economic rationale” of a contingency risk
enhancement: “ ‘ “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 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.” ’ ” (Graham v. DaimlerChrysler Corp., supra, 34
Cal.4th at pp. 579–580.)

22
demonstrate that the court’s use of a multiplier for contingent risk was

unjustified.11
IV. Partial Success Arguments
Harmony contends the court further abused its discretion in awarding
the entire amount Sierra Club sought given Sierra Club assertedly lost on its
second and third causes of action, and thus those causes of action “enforced
no public right.” It points to cases upholding denial of fees in cases of limited
success (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, Save Our
Uniquely Rural Community Environment v. County of San Bernardino (2015)
235 Cal.App.4th 1179), and maintains the court in this case “ignored the
facts” and failed to apply the proper standards. According to Harmony, the
court should have determined whether the relief it granted was related to the
failed claims and denied claims for unrelated work, as well as evaluated the

11 Harmony’s record citation for this proposition does not support any
suggestion that the issues were routine or not complex, at least for Sierra
Club’s experienced counsel, so as to weigh against applying a multiplier.
Harmony cites Sierra Club’s counsel’s declaration in the record, in which he
states: “I am a partner at Chatten-Brown, Carstens & Minteer . . . , a small,
public interest, for-profit law firm. We primarily represent non-profit
environmental organizations, community groups, individuals, and
occasionally government entities. Non-profit environmental organizations,
such as the petitioner in this case, are often unable to pay market rates for
legal services due to their limited fundraising capabilities and the high cost of
litigation. In order to provide such groups with legal services, our office
generally offers services for compensation below our market billing rate, at a
reduced rate level negotiated with the clients, with a cap on fees, or
sometimes, in cases such as this, on a contingent basis, except for payment of
costs. A successful outcome is always uncertain, and so our practice relies on
fee awards in successful cases to assist in funding subsequent public interest
litigation.” Counsel goes on to state in his declaration that his firm
“represented . . . Sierra Club on a fully contingent basis in this case” and so
as to not take on a higher workload than it could handle, his firm “declined to
represent paying clients.”
23
significance of the relief and reduced the lodestar if it gave limited relief.
Harmony further argues that Sierra Club’s second and third causes of action
were both “borderline frivolous.” It concedes Sierra Club’s “time entries . . .
were not informative enough to establish quantities for the misdirected
effort” but maintains the “broad outlines” of the case show the problem being
the two causes of action were “complete failures.”
These latter arguments are identical to those Harmony made below in
its opposition to Sierra Club’s attorney fee motion, which the trial court both
expressly and implicitly rejected. (Accord, Sweetwater Union High School
Dist. v. Julian Union Elementary School Dist., supra, 36 Cal.App.5th at p.
996 [by declining to reduce fee award, court impliedly rejected contention
that fees should be reduced for unnecessary work by counsel given litigant’s
limited success].) The trial court in this case expressly ruled that “[g]eneral
arguments that fees claimed are excessive, duplicative or unrelated do not
suffice” (italics added) and that Harmony had the burden, but failed to
identify specific excessive hours.
The court’s ruling declining to reduce the fee award necessarily implies
a finding that Sierra Club’s claims were sufficiently related or involved a
common core of facts such that apportionment between successful and
unsuccessful claims was unwarranted (Sweetwater Union High School Dist.
v. Julian Union Elementary School Dist., supra, 36 Cal.App.5th at pp. 996–
997) and that its requested 699 hours of time were reasonably expended on
the litigation given the relief granted “in comparison to the scope of the
litigation as a whole.” (Id. at p. 997.) “ ‘[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

24
failure to reach certain grounds is not a sufficient reason for reducing a fee.
The result is what matters.’ ” (Ibid.) We give “[g]reat deference” to the
court’s assessment of the amount of attorney fees because of its superior
understanding of the litigation. (San Diego Municipal Employees Association
v. City of San Diego, supra, 244 Cal.App.4th at p. 915.)
Harmony’s arguments, which fail to acknowledge the trial court’s
implied findings, do not compel us to disturb the court’s exercise of discretion.
The court could reasonably conclude Sierra Club’s causes of action arose out
of common facts, namely, County’s approval of the projects, and that Sierra
Club’s success in achieving its goal of setting aside the project approvals for
violating CEQA “in comparison to the scope of the litigation as a whole”
warranted fees for all of the requested 699 hours expended by its counsel.
Harmony’s arguments focusing on the mere success or failure of Sierra Club’s
claims do not address these considerations. Further, the trial court did not
rule on the merits of Sierra Club’s request for declaratory relief as to
improper batching of general plan amendments (including for Newland
Sierra), because the requested judicial declaration would not impact the
projects at issue. (Accord, Sweetwater Union High School Dist. v. Julian
Union Elementary School Dist., supra, 36 Cal.App.5th at p. 997 [holding trial
court could reasonably conclude school district lawyers reasonably expended
all listed hours even where lower court declined to issue requested writ relief
on several claims, because court’s ruling did not reflect adversely on the
merits of those claims].)
We are not persuaded by Harmony’s complaint about insufficient detail
in Sierra Club’s billing records. It suggests Los Angeles County Bd. of
Supervisors v. Superior Court (2016) 2 Cal.5th 282 demonstrates the trial
court was wrong in placing the burden on it to identify excessive or unrelated

25
time because it could not have obtained the necessary information, which
remains “confidential” while the case is pending. This argument is an overly
broad and unsupported reading of Los Angeles County. There, the court
made clear that the attorney client privilege “does not categorically shield
everything in a billing invoice from . . . disclosure.” (Los Angeles County, at p.
288; see also id. at p. 300 [“the contents of an invoice are privileged only if
they either communicate information for the purpose of legal consultation or
risk exposing information that was communicated for such a purpose. This
latter category includes any invoice that reflects work in active and ongoing

litigation”].)12 Rather, “the privilege turns on content and purpose, not
form . . . .” (Id. at p. 298.) The Los Angeles County case was concerned in
part with information contained in billing records related to “active litigation”
that could reveal legal strategy, like “[m]idlitigation swings in spending.”
(Id. at p. 297, see also id. at p. 298 [billing may communicate privileged
information when it “provides . . . insight into litigation strategy or legal
consultation” but “there may come a point when this very same information
no longer communicates anything privileged . . . .”].)

12 The Supreme Court stated: “Invoices for legal services are generally
not communicated for the purpose of legal consultation. Rather, they are
communicated for the purpose of billing the client and, to the extent they
have no other purpose or effect, they fall outside the scope of an attorney's
professional representation. . . . While invoices may convey some very
general information about the process through which a client obtains legal
advice, their purpose is to ensure proper payment for services rendered, not
to seek or deliver the attorney's legal advice or representation.” (Los Angeles
County Board of Supervisors v. Superior Court, supra, 2 Cal.5th at p. 295.)
The court nevertheless recognized that “while billing invoices are generally
not ‘made for the purpose of . . . legal representation,’ the information
contained within certain invoices may be within the scope of the privilege.”
(Id. at p. 297.)
26
 Setting aside whether this circumstance—an unsuccessful party’s
challenge to a postjudgment attorney fee award—presents a matter of active
or continuing litigation, Harmony fails to point to even a single billing
statement that assertedly reflects litigation strategy or consultation. Even if
Sierra Club’s bills omitted privileged matter, Harmony on appeal “fails to
show the redacted bills left [it] unable to challenge the reasonableness of the
fees.” (Banning v. Newdow (2004) 119 Cal.App.4th 438, 454.) A bare
assertion that time entries were “not informative enough” or “imprecise” is
not enough to disturb the trial court’s exercise of discretion, or meet
Harmony’s appellate burden to establish error in this context.
V. Balancing of Harms
Finally, Harmony contends the trial court erred by failing to consider
the harm Sierra Club’s litigation caused by “delay[ing] for years the
construction and occupancy of vitally needed housing” in deciding Sierra
Club’s basic entitlement to fees or assessing the propriety of a diminishing
multiplier. Arguing the question presents an issue of statutory construction,
it urges us to disregard or distinguish Environmental Protection
Information Center v. Department of Forestry & Fire Protection (2010) 190
Cal.App.4th 217 (EPIC), in which the court rejected a similar argument
concerning the balancing of public harms and benefits.
We agree with the observation of the appellate court in EPIC that
nothing in section 1021.5’s text supports the position that asserted harms of
an action must be weighed against its benefits: “The statute asks whether
the successful party’s action has conferred a ‘significant benefit’ [citation],
not, as the Agencies would have it, a “net significant benefit.’ ” (EPIC, supra,
190 Cal.App.4th at p. 231.) As in EPIC, “[w]e are disinclined to adopt a

27
construction of the statute that ‘neither the context nor the language of
section 1021.5 demands.’ ” (Ibid.)
In any event, Harmony did not establish its premise: harm to the
provision of housing caused by Sierra Club’s litigation. The trial court denied
Harmony’s request to take judicial notice of the Governor’s executive order on
which Harmony relied below in making its assertions of harm. Harmony
continues to cite the executive order on appeal but it does not meaningfully
challenge the court’s evidentiary ruling. In a footnote, Harmony
acknowledges the trial court “questioned the authenticity” of the executive
order, and asserts “neither the content nor the authenticity of this Executive
Order should be in dispute.” This sort of cursory argument is insufficient to
demonstrate error, particularly as we presume the correctness of the court’s

ruling.13

13 In its reply brief, Harmony cites to Internet web pages from
“email.ojo.com” and the San Diego Union Tribune for the proposition that
California has four of the ten least affordable housing areas in the nation.
Sierra Club objects to our consideration of these web pages, pointing out
Harmony did not request judicial notice of them. In response, Harmony
states the pages are “beside the point” and points to Government Code
sections acknowledging California’s “critical problem” with the lack of
housing, characterizing it as “ ‘generalized knowledge.’ ” We disagree this
establishes Sierra Club’s litigation obstructed the provision of housing, but
even if it did, as stated, the court was not required to balance that harm
against the benefit of Sierra Club’s litigation in its attorney fees analysis.
28
 DISPOSITION
The postjudgment order is affirmed.

O'ROURKE, Acting P. J.

WE CONCUR:

IRION, J

BUCHANAN, J.

29