In Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603 (hereinafter “CBD II”), appellants Center for Biological Diversity (“CBD”) asserted that the trial court abused its discretion by awarding substantially lower attorney fees than CBD sought on remand in Center for Biological Diversity v. County of San Bernardino (Oct. 27, 2008, E-042316) [unpublished opinion] (hereinafter “CBD I”). In CBD I, at trial CBD lost on each of its two claims brought under the California Environmental Quality Act (“CEQA”), but prevailed on a claim relating to consistency with the San Bernardino County General Plan. CBD subsequently filed a motion for fees (“1st Fee Motion”). The trial court awarded CBD approximately 1/4 of the fee award sought by CBD “[d]ue to the limited relief granted on the underlying petition. . .” (“1st Fee Order”). CBD appealed the 1st Fee Order. However, CBD entered a stipulation to dismiss the appeal of the 1st Fee Order after the County and Real Parties filed an appeal of the underlying judgment, which CBD cross-appealed. On the appeal from the judgment, the Fourth Appellate District held that the trial court erred in denying the CEQA claims and modified the judgment issuing the writ of mandate accordingly.

On remand, the case was reassigned to a new trial judge due to a peremptory challenge brought by CBD. CBD moved for an additional fee award (“2nd Fee Motion”). In CBD’s motion, CBD sought fees on appeal and a supplemental award of fees for work performed at the trial court level, which CBD argued were warranted as a result of its greater success on appeal. In total, CBD sought $563,926.45 in attorney fees in its 2nd Fee Motion. The trial court concluded: (1) it lacked jurisdiction to award additional fees for the trial court work in the CBD I, because CBD dismissed its appeal of the award and the judgment “ha[d] become final and c[ould] be altered”; (2) the lodestar amount should not reflect rates that exceeded local Inland Empire rates; (3) the number of hours of work claimed by CBD in the CBD I appeal were excessive because the appellate work largely required CBD to “duplicate[] work done at the trial level”; and (4) a multiplier was not warranted. Based on these conclusions, the trial court awarded CBD $62,530 for its efforts on appeal in CBD I, approximately half a million less than CBD sought.

CBD appealed the trial court’s ruling on its 2nd Fee Motion arguing that the trial court abused its discretion with respect to each of the four conclusions the court relied in determining the amount of attorney fees. As discussed below, the Fourth Appellate District held the trial court abused its discretion with respect to the first three issues. The Fourth Appellate District, however, declined to decide the multiplier issue, but the holding provides guidance regarding factors to consider in calculating a multiplier.

First, the Fourth Appellate District explained that the issuance of an order on supplemental attorneys’ fees does not require review of an original order on fees because a party that prevails on appeal may seek attorneys’ fees for work at trial. In a footnote the court explained further that, “even where there is no appeal of a postjudgment order awarding attorney fees to the prevailing party, and the award has become final, the appellate court’s reversal of the judgment on the merits extinguishes the order on fees.” (Citing Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284.) Therefore, the court concluded the trial court had jurisdiction to award supplemental attorneys’ fees for CBD’s work at trial and reversed the trial court’s order.

Second, in addressing the proper hourly rates for CBD’s counsel, the Fourth Appellate District explained that local rates should apply unless the evidence establishes that a plaintiff made a good faith effort to find local counsel and has demonstrated that hiring local counsel was impracticable. Only then can the higher rates charged by out-of-town counsel should be taken into account. CBD presented evidence in the form a declaration by a member of one of the plaintiff organizations stating that an effort was made to obtain qualified local counsel and that CBD was unsuccessful. The court concluded this evidence satisfied CBD’s required threshold showing of impracticability and was uncontested by both the County and Real Parties. Therefore, the court held that the trial court erred in relying on its knowledge of local rates in reducing the hourly rates sought by CBD’s counsel and the court ordered further proceedings by the trial court to determine the reasonable hourly rates to which CBD’s counsel are entitled.

The Fourth Appellate District also strongly disagreed with the trial court’s conclusion that the number of hours claimed were excessive due to the hard ground work done in the trial court that it would be unnecessary to repeat for the purpose of appeal. The court stated that trial court preparation and appellate work are not commensurate tasks. The court explained further that because trial work and appellate work frequently occur years apart, “[o]ne certainly expects some degree of duplication as an inherent part of the process. There is no reason why the lawyer should perform this necessary work for free.” (Citing Moreno v. City of Sacramento (9th Cir. 2008) 534 F.3d 1106, 1112.) Therefore, the court directed the trial court to reconsider the number of claimed hours because nothing in the record supported the trial court’s 56% reduction in hours claimed by CBD.

Lastly, with respect to the trial court’s decision to deny a multiplier, the court explained that the proper multiplier, if any, must be evaluated in light of the method used to decide the lodestar. Where the lodestar takes into account out-of-area rates, it is not proper to include this factor in the multiplier. Therefore, depending on how the lodestar is calculated, the trial court may only need to consider whether, and in what amount, a multiplier is appropriate based on contingency risk.